Duckworth v. Moore Brief of Appellees

    mJu j l I O, / is o

IN THE

UNITED STATES CIRCUIT COURT OF APPEALS

FIFTH CIRCUIT

No. 13,158

CITY OF BIRMINGHAM, ET AL.,
Appellants,

vs.

MARY MEANS MONK, ET AL,
Appellees.

BRIEF AND ARGUMENT OF
H orace  C. W ilk in so n

Attorney for Appellants



SUBJECT INDEX

Page
Staetment of the Case____________________________________ I

The Facts _____________________________________________  7

Proposition of Law_____________________________________  29

Assignment of Error_____________________________________ 34

ARGUMENT

Proposition I
a. The court erred in holding that this case is ruled by

Buchanan v. Warley________________________________ 42
b. The zoning ordinances do not “take” property without

due process _______________________________________  50
c. A non-absolute right may be restricted by legislation-----  52
d. The City Commission believes that its zoning ordinance

does not conflict with the 14th Amendment-----------------  56
e. Long and repeated recognition of validity of ordinance— 57

Proposition II
a. Social and economic data admissible and material--------  60
b. Constitutional interpretation is more than a rule of

thumb ___________________________________________  66
c. Segregation is not forbidden by U. S. Constitution--------  69

Proposition III
a. Residential segregation socially desirable----------------- — 73
b. Residential segregation discourages debasement of bloods 77
c. Residential segregation is advantageous to the Negro-----  93
d. Residential segregation lessens racial antipathies-----------  94
e. Residential segregation makes each race more at ease-----  96
f. Equitable segregation ______________________________ 98

Proposition IV
Residential segregation is essential to peace and order----------102

Proposition V
Equitable segregation is economically desirable--------------   114

Proposition VI
a. Residential segregation the most practical solution-----  137
b. The nature of race conflict__________________________ 143
c. The city’s right to preserve racial integrity-------------------145



SUBJECT INDEX (Cont.)

Page
Proposition VII

The use of property may be regulated under the Police 
pow er--------------------------------------------------------1________149

Proposition VIII
The difference between the races affords a sound basis for

the exercise of the police power______________________
a. The marked differences_____________________________ 156
b. Science of Government_____________________________ 160
c. Military Value ____________________________________162

Proposition IX
An impracticable construction of the Constitution will be

avoided ___________________________________________ 164
Conclusion __________________________________________ 165

CONSTITUTIONAL AND STATUTORY 
PROVISIONS

City Code of Birmingham (1944)
Sections 1604 and 1605 

(Supp. Ord. No. 709-F)
Chapter 57 
Section 1645
Code of Alabama (1940)

Title 62-Sec. 719 
” 62-Sec. 711
” 14-Sec. 360-361
” 16-Sec. 7
” 27-Sec. 11

ACTS OF ALABAMA 
Acts 1909—Page 392 
Acts 1915—Page 294—Sec. 6 

Alabama Constitution (1901)
Sec. 102 
Sec. 256 
Sec. 182 

Text Books
Cooley’s Constitutional Limitations 
Vol. II—Page 1317



BIBLIOGRAPHY
THE APPRAISAL JOURNAL-January 1944 
PRINCIPLES OF CITY LAND VALUES 

(Hurd) 77-78
21 ILLINOIS LAW REVIEW-716 
APPRAISAL JOURNAL, February, 1940 

(A Source of Property Value)
THE STATE (Woodrow Wilson) Page 592 
EBONY (May, 1949) Page 18
SELECTED ESSAYS ON CONSTITUTIONAL LA W - 

Vol. 2, Pages 1175-1176 and 1193, 1179, 1180, 1194.
HARVARD LAW REVIEW, Vol. 38, Page 6 
MICHIGAN LAW REVIEW-Vol. 24, Page 17 
MILTON R. KNOVITZ (Irene Morgan case)
PENNSYLVANIA LAW REVIEW-Vol. 79, Page 665 
ILLINOIS LAW REVIEW, Vol. 21, Pages 704-716 
THE NATION (August, 1947) Page 123 
NEW YORK COMMISSION REPORT-Page 74 
PENNSYLVANIA COM. REPORT, Page 131 
COLLIER’S WEEKLY (November 3, 1946)
NEGRO GHETTO, Pages 167-170
W HAT THE NEGRO WANTS (R. W. Logan), Pages 7, 28
THE NEGRO IN CHICAGO
NEGRO DIGEST (December, 1944) Page 31
WHAT THE NEGRO WANTS (DuBois), Pages 65, 66
AMERICAN JOURNAL ON SOCIOLOGY, Vol. 50-Page 351
DEUTERONOMY, Chapter 23, V-2
HEBREWS, Chapter 12-V6-8
AMERICAN INSTITUTIONS AND TH EIR PRESERVATION 

(Cook)
BALFOUR, SIR ARTHUR JAMES 
MY THREE YEARS IN MOSCOW (Smith), 285, 268 
WHERE I WAS BORN AND RAISED (Cohn, 1949), Page 156 
DOWD, Professor
RACE AND NATIONALITY (Fairchild, Professor), Page 88 
THE CRADLE OF TH E CONFEDERACY (Hodgson)
NEGRO HOUSING, Page 213
THE NEGRO IN AMERICAN LIFE, Pages 474, 476
TOOMBS, SENATOR ROBERT
THE AMERICAN RACE PROBLEM (1927)
PLANNING FOR THE SOUTH (Sickle)
BISHOP, Reporter



BIBLIOGRAPHY (Cont.)

PRICE, BEN 
PEOPLE v. PROPERTY
ROCKY MOUNTAIN LAW REVIEW (Vol. 18)
NATIONAL ASSOCIATION OF REALTORS CODE 
HOUSING FOR THE MACHINE AGE 
THE REVIEW OF THE SOCIETY OF 
RESIDENTIAL APPRAISERS 
UNDERWRITING MANUAL (FHA) (1935)
TH E INSURED MORTGAGE PORTFOLIO
PUNISHMENT W ITHOU T CRIME
TH IRD NATIONAL MUNICIPAL REVIEW (July, 1914)
ONE HUNDRED YEARS OF LAND VALUES IN CHICAGO 

(Hoyt)
THE NEGRO PROBLEM (1914)

TABLE OF CASES

Page
Borden’s Co. v. Baldwin, 293 U. S. 194___________________ 32, 67
Boyer v. Garrett, MMS U. S. Dist. Ct., Maryland, Dec. 30,

1949 ______________________________________________ 31, 54
Buchanan v. Warley, 245 U. S. 60----------------------- 29, 41, 50, 52, 56
Buck v. Bell, 274 U. S. 200__________________________30, 46, 75
Cantwell v. Connecticut, 310 U. S. 296------------------------ 29, 33, 44
Cassee Realty Co. v. Omaha, 144 Neb. 753-----------------------------33
Cumming v. Richmond County Board of Education, 175

U. S. 528 _________________________________________ 32, 71
Dorsey v. Stuyvesant Town Corp., 87 N. E. (2d) 241----------------32
Eldridge v. Trezevant, 160 U. S. 452------------------------------------ 58
Elmore County v. Tallapoosa County, 221 Ala. 182--------- -—31, 57
Euclid v. Ambler Realty Co., 272 U. S. 365____________ 29, 30, 45
Gaines v. Canada, 305 U. S. 337------------------------------------------32, 72
Gompers v. U. S. 233 U. S. 604____________________________ 32, 66
Gong Lum v. Rice, 275 U. S. 78___________________________ 32, 71
Hadacheck v. Sebastian, 239 U. S. 394-------------------------------- 29, 44
Henderson v. U. S., 80 Fed. Supp. 32-----------------------------------31, 54
Holden v. Hardy, 169 U. S. 366------------------------------------------- 33
Hirabayashi v. U. S., 320 U. S. 81-----------------------------------30, 45
Jackman v. Rosenbaum, 260 U. S. 22------------------------------------ 58
Jacobson v. Massachusetts, 197 U. S. 11------------------ 30, 46, 64, 74



TABLE OF CASES (Cont.)

Page
Kyle v. Abernathy, 46 Colo. 214_________________________31, 57
Korematsu v. United States, 323 U. S. 214_________________ 30, 45
Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 (1910)___ 58
Miller vs. Schoene, 276 U. S. 272____________________________33
Miller v. Oregon, 208 U. S. 412___________________ 30, 46, 65, 76
Munn v. Illinois, 94 U. S. 113______________________________29
Nectow v. City of Cambridge, 277 U. S. 183______________ 32, 33
Noble State Bank v. Haskell, 219 U. S. 104__________________ 33
Norton v. Randolph, 176 Ala. 381______________________ 30, 47
Oyama v. California, 332 U. S. 633_____________________ 29, 45
Pace v. State, 69 Ala. 231_______________________________30, 53
People v. Gallagher, 45 Amer. Report 232___________________ 70
People v. School Board, 161 N. Y. 598___________________ 32, 72
Pierce Oil Company v. Hope, 248 U. S. 498_______________ 29, 44
Plessy v. Ferguson, 163 U. S. 537_______________ 30, 31, 53, 58, 97
Prudential Insurance Co. v. Cheek, 259 U. S. 530_________ 31, 55
Roberts v. City of Boston, 5 Cush. 198______________________71
Reinman v. Little Rock, 237 U. S. 171___________________ 29, 44
Sipuel v. Board of Regents, 332 U. S. 631 (1948)_____________ 72
St. Anthony Falls Water Power Co. v. Board of Water Com­

mission, 168 U. S. 349 (1897)____________________________58
State v. Board of School Comm., 226 Ala. 62_____________ 31, 54
State v. Board of Trustees, 126 Ohio St. 290_________________ 32
State ex rel Carter v. Harper, 182 Wis. 148, 196 N. W.

451 ------------------------------------------------------------------30, 47, 77
State v. Hillman, 110 Conn. 92____________________________ 33
Story v. State, 178 Ala. 98______________________________30, 81
Taylor v. Hackensack, 137 NJL 139_________________________ 33
Texas & N. O. R. R. v. Brotherhood R. & S. Clerks, 281 U. S.

548 ---------------------------------------------------------------------------- 33
Traux v. Corrigan, 257 U. S. 312___________________________66
U. S. v. Caroline Products Co., 304 U. S. 144___________ 32, 67, 68
Vidalia v. McNelly, 274 U. S. 676 (1927)______________________58
Weaver v. Board of Trustees of Ohio State Univ., 126 Ohio

St. 290 ______________________________________________ 73
West Chester R. R. Co. v. Miles, 55 Pa. St. 209 (1867)-.4, 31, 54, 89
West Coast Hotel Co. v. Parrish, 300 U. S. 379_________ 30, 33, 47
Worthington v. District Court, 37 Nev. 212_______________ 31, 57



IN THE

UNITED STATES CIRCUIT COURT OF APPEALS

FIFTH CIRCUIT

No. 13,158

CITY OF BIRMINGHAM, ET AL.,
Appellants,

vs.
MARY MEANS MONK, ET AL,

Appellees.

STATEMENT OF THE CASE

This is an appeal from a final judgment rendered by the 
United States District Court in Birmingham, Alabama, in 
favor of Mary Means Monk and fourteen other Negroes 
against the City of Birmingham, a municipal corporation,
H. E. Hagood, its Building Inspector, and Commissioner 
James W. Morgan, in whose department the zoning law 
is administered.

The court declared Sections 1604 and 1605 of the City 
Code of Birmingham (1944) and a supplementary ordi­
nance No. 709-F, unconstitutional and ordered an injunc­
tion against their enforcement. (R. p. 263) . The ordi­
nances are set out in the appendix.

Sections 1604 and 1605 are a part of the basic zoning 
law of Birmingham. They make it unlawful for a Negro, 
with some minor exceptions, to occupy property for resi­
dential purposes in an area zoned A-l or white residential 
and for a white person to occupy property for residential 
purposes in an area zoned B-l or negro residential.



2
The plaintiffs filed a complaint in the District Court 

(R. p. 1) in which they claimed that Sections 1604 and 
1605 and supplementary ordinance No. 709-F were un­
constitutional because they prevented the plaintiffs from 
constructing and occupying residences upon certain real 
estate in the Graymont-College Hills section of Birming­
ham which has been zoned white residential since 1926.

The plaintiffs claimed that they were negroes and that 
they were excluded from that area, by the zoning ordinance, 
solely because of their race or color. They averred that 
Mary Means Monk had applied for and had been denied 
a permit to build and occupy a house as a residence in said 
area and that all other negroes will be denied a permit to 
build and occupy a residence on any lots they own in said 
area because said lots are in a white residential zone. They 
asked the court to injoin the enforcement of Sections 1604 
and 1605 of the City Code of Birmingham and said Ordi­
nance No. 709-F and to render a judgment declaring said 
ordinances unconstitutional, null and void.

The defendants filed an answer (R. p. 19) in which 
they denied that the plaintiffs are prevented from living 
on the property they claim to own solely because of their 
race and color. The defendants set up that the classifi­
cation of certain areas in the City of Birmingham in its 
zoning ordinances as white residential sections and negro 
residential sections is based... in part, upon the difference 
between the white and negro races and not solely upon race 
or color. The defendants denied that the zoning ordi­
nances are unconstitutional.

With respect to the origin and operation of the basic 
zoning ordinances in Birmingham the defendants averred 
(R. p. 22) :

“. . . . The zoning ordinances of the City of Birming­
ham were adopted more than twenty years ago after pro­
tracted public hearings in which each class of citizen­
ship in Birmingham was represented and heard, that it



3
embraced a comprehensive plan for zoning in line with 
the best thought in the Nation on the subject of zoning 
and that said plan embodied in said zoning ordinances 
has been highly successful in its operation for twenty 
years or more and has contributed by stabilizing property 
values in the respective zones to the material prosperity 
and progress of the City of Birmingham, that it has alle­
viated racial friction and race tension and has contributed 
to the public peace and the public welfare to a marked 
degree. Defendants aver that said ordinance is a valid 
and legal exercise of the police power of the City of Bir­
mingham which by specific statutory enactment is com­
mensurate with the police power of the State of Alabama 
and is a power that is inalienable and cannot be sur­
rendered by the City of Birmingham, Alabama, or by 
the State of Alabama.”

The defendants set up in their answer that the most 
exceptional circumstances not only justify but require the 
classification made by the zoning ordinances and that the 
enforcement of the zoning ordinances is imperative.

The defendants averred that,

“ There has been dynamiting, rioting, violence, dis­
order and damage to property in the areas in which the 
plaintiffs claim to own property on recent previous oc­
casions when negroes attempted to occupy property in 
said area zoned white residential. . .

The defendants further averred:

• ■ • • That should the plaintiffs undertake to occupy 
the property they claim to own, there is a clear, grave 
and present danger of a race riot, violence and loss of 
life and tremendous property damage, all of which will 
likely or probably follow such action and which cannot 
be prevented by any amount of police protection that 
the City of Birmingham or the State of Alabama is able 
to afford. . . .” (R. p. 20).



4
The defendants further averred that if the plaintiffs 

undertook to occupy the property they claim to own that,

“• • • • The lives of a large number of citizens, white
and negro, in Birmingham would be jeopardized and the
public peace and order disturbed to a marked degree.. .

The defendants further averred that an overwhelming 
majority of white and colored citizens in Birmingham favor 
residential segregation as the same is established by the 
zoning ordinances referred to in the complaint and that 
said white and negro citizens recognize that said residential 
segregation is advantageous to both races and in the in­
terest of both races and in the public interest for the fol­
lowing reasons:

(a) Racial antipathies would be lessened. Because of 
differences between the races, resulting from different 
cultural backgrounds and different physical make-ups, a 
natural prejudice prevents harmony. By keeping one sepa­
rated from the other it follows that the prejudice will mani­
fest itself less frequently.

(b) Each race would be more at ease—the white be­
cause it has a distaste for the colored, and the colored be­
cause it would feel less imposed upon and more inde­
pendent. This, no doubt, is one of the important elements 
prompting various legislatures to enact laws separating the 
races in trains, schools and cities.

(c) Because of this feeling of independence the negro, 
as a race, would be more progressive. There would be 
greater incentive for him to move forward in that he would 
feel he was improving his own castle rather than that of the 
white man. Mr. Shannon says that with segregation “all 
would have better opportunity to develop along normal 
lines toward racial self-sufficiency, racial self-respect, and 
racial self-reliance.”

(d) There would be less miscegenation. West Chester 
R. R. Co. v. Miles, 55 Pa. St. 209 (1867), states that co-



U /JU .

5

yMJd  IV

?;\ ■ ' J j® * s

mingling of the races even on street cars was pernicious fori 
the very reason that “the tendency of intimate social inter­
mixture is to amalgamation contrary to the law of races ” I 
(R. p. 21).

The defendants further set up that:

“The white and colored citizens in Birmingham have 
abided by the zoning ordinances referred to in the com­
plaint for more than twenty years prior to the filing of 
the complaint and that by unanimous consent up to the 
filing of the complaint abided by and respected the 
classifications established by the zoning board and ap­
proved by the Commission of the City of Birmingham, 
Alabama, as provided in said zoning law and as a result 
there has been developed in the City of Birmingham a 
well established and well recognized custom which has 
crystalized into a contract between the whites and negro 
citizens in Birmingham to the effect that the members of 
each race will abide by and respect the classifications 
established by the zoning board and that the members 
of one race will not undertake to occupy property for 
residential purposes that is located in an area zoned for 
residential purposes for the members of the other race. 
Based on that agreement and the aforesaid recognition 
of the said classifications for more than twenty years, 
thousands of white citizens have built their homes in 
areas zoned white residential and thousands of colored 
citizens have built their homes in areas zoned negro 
residential area relying upon the aforesaid agreement and 
custom and its observances for a period of twenty years 
fully confident that the area zoned white residential 
would not be invaded by negroes and that the area zoned 
negro residential would not be invaded by members of 
the white race until the respective zoning classifications 
were changed by the zoning board in the way and man­
ner provided by said zoning ordinances.” (R. p. 28) .

In addition to the calamity in the form of a race war 
which will result from the plaintiffs being allowed to live 
in a white residential section, the defendants averred that



6
residential property in Birmingham, white and colored 
alike, would immediately depreciate in value from twenty- 
five to fifty percent if the Birmingham zoning law is nulli­
fied and as a result,

. . . .  The municipal revenue would be so greatly 
diminished as a result of the depreciation in property 
values that the City of Birmingham would be unable to 
render the necessary fire, police, health, street and light 
service to white and black that is necessary and essential 
that the education of white and black in Birmingham 
would be greatly impaired as a result of the diminution 
in municipal revenue and that the comfort, peace and 
progress of both races would be disturbed and arrested 
and all municipal services to both races materially im­
paired as a result of the diminution in revenue resulting 
from the decrease in property values. . . (R. p. 29).

In addition to injuries suffered by the City of Birming­
ham in its corporate capacity, the defendants averred that:

“. . . . Thousands of property owners in Birmingham, 
white and colored alike will suffer irreparable injury and 
damage if the plaintiffs are allowed or permitted to upset 
or overturn the arrangement that has prevailed in the 
City of Birmingham for more than twenty years, and that 
it would be inequitable to allow the plaintiffs to disturb 
the aforesaid arrangement which is essential to peace and 
order and the preservation of life and property values 
in the City of Birmingham.” (R. p. 30) .

The defendants also averred that the human rights of 
the citizens of Birmingham to freedom from disorder is 
superior to any property rights asserted by the plaintiffs. 
That claim was made in the following language:

“Defendants aver that the human right of hundreds 
of thousands of negroes and whites in the City of Birm­
ingham to peace and order and freedom from race war 
and race riots, that their right to life, liberty and the



7
pursuit of happiness is superior to any alleged right of 
the plaintiffs to occupy property they claim to own which 
they admit they purchased with full knowledge of the 
restrictions placed on its occupancy by the City of Birm- 
ham, Alabama, which have been acquiesed in, accepted 
and abided by the citizens of both races for more than 
twenty years. The defendants aver that the aforesaid 
human rights are paramount to any property rights as­
serted by the plaintiffs.”

The defendants also set up that plaintiffs could take an 
appeal to the Board of Adjustment from the refusal of the 
administrative officer, H. E. Hagood, to issue the building 
permit and that Mary Means Monk had not availed her­
self of the right of appeal provided for in Section 719, 
Title 62, Alabama Code of 1940. (R. p. 27).

THE FACTS

The City of Birmingham is an Alabama municipal cor­
poration. It lies mostly in Jones Valley between two moun­
tains. One on the North and one on the South and has a 
population of about four hundred thousand people. More 
than forty percent of its population are negroes.

Prior to 1910 the territory now within the corporate 
limits of the City of Birmingham consisted of the City of 
Birmingham and eleven other municipalities lying East, 
West and North of Birmingham. There were one or more 
white and one or more colored residential districts in each 
of these outlying communities.

In 1909 the boundary lines of the City of Birmingham 
were altered or rearranged so as to include within the cor­
porate limits of the City of Birmingham the territory then 
included within the eleven municipalities, effective Jan­
uary 1, 1910. Acts 1909, page 392.

In 1915 the legislature of Alabama conferred upon the 
City of Birmingham express authority to prevent conflict 
and ill feeling between the races and delegated to Birming-



8
ham full, complete and unlimited police power possessed 
by the State of Alabama in so far as it is possible for the 
legislature of Alabama under the Constitution of Alabama 
and of the United States to delegate such powers. Acts 
1915, page 294, Section 6.

In 1923 the legislature of Alabama expressly empowered 
the legislative body of the City to establish a zoning com­
mission and to classify inhabitants by regulations, which 
will not discriminate in favor of or against any class of in­
habitants. Alabama Code 1940, Title 62, Section 711.

The City employed the well known engineering firm of 
Morris Knowles of Pittsburg, Pennsylvania, to prepare a 
comprehensive zoning plan for the City of Birmingham. 
After several years study and innumerable public hearings 
in which all races, classes and interests were heard at length, 
the City was zoned by a basic zoning ordinance which is 
now Chapter 57 of the General City Code of Birmingham 
of 1944, Generally speaking, the City was divided by this 
ordinance into five districts, white residential, negro resi­
dential, commercial, light industrial and heavy industrial. 
The white and negro residential districts were in turn sub­
divided in A-l residential for white, B-l residential for 
negroes, A-2 residential for whites, and B-2 residential for 
negroes. In the white residential districts no building or 
part thereof shall be occupied or used by a person of the 

j  negro race, with minor and unimportant exceptions. In 
L the negro residential districts, no building or any part 
j thereof shall be occupied or used by any person of the 

white race, with certain minor and unimportant exceptions.
It is made the duty of the Chief Building Inspector of 

the City to administer and enforce the zoning law and a 
right of appeal from the decision of the administrative offi­
cer may be taken to the Board of Adjustment by any per­
son aggrieved under Section 1645, Birmingham Code, 1944. 
In the basic zoning map which was introduced in evidence 
as defendants Exhibit 2, it appears that there are thirty-



seven negro residence areas in Birmingham plus a thirty 
acre tract known as Taylors Hill in a white residential zone 
which has not been disturbed because it was occupied by 
negroes at the time the City was zoned in 1926. It is en­
tirely surrounded by a white residence area.

George R. Byrum, Jr., Chairman of the Board of Ad­
justment testified (R. p. 78) that the percentage of the 
vacancies in the different residence areas was substantially 
uniform throughout and that all of the negro areas are 
from 90 to 92 percent improved and that about 8 or 10 
percent of each respective area is vacant and available for 
improvement.

This was based on an actual inspection of the property 
made the week before the trial in the District Court.

A map of the area in which the lots owned by the plain­
tiff are located was introduced in evidence as defendants 
Exhibit 1. This map shows that the streets in that dis­
trict run north and south and the Avenues east and west. 
All of the property west of Center Street between 9th 
Avenue and 11th Avenue, a distance of four blocks, is 
zoned white except six lots on the east side of block 36. 
Blocks 40 and 46 between 11th Avenue and 11th Court 
West on Center Street are also zoned white. West of 
Center Street between 9th Avenue and 11th Avenue for 
more than a mile is zoned white. Lots owned by the plain­
tiffs are located in Blocks 37, 38, 39, 40 and 47, all of which 
are exclusively white blocks.

The evidence is to the effect that Mary Means Monk 
applied for a building permit to erect a dwelling or a house 
on a lot in Block 37 which she proposed to occupy as a 
residence. (R. p. 54) . The building inspector examined I 
the plans and specifications for the dwelling and found 
they were in compliance with the structural requirements 
of the building code of the City of Birmingham, but the 
issuance of the building permit applied for was refused 
because the purpose for which the property was to be used



10
would violate Sections 1604 and 1605 and Ordinance 709-F 
above referred to.

Commissioner James W. Morgan testified (R. p. 91) 
that the building inspector was in his department and under 
his immediate supervision and that he refused to have Mr. 
Hagood issue the permit on the grounds that Mary Means 
Monk’s property was in a white district and that it is his 
policy that no permits are issued to negroes who propose 
to build homes and occupy them in a white residential 
section. Mr. Morgan testified that this policy was based 
on the custom that had been observed throughout the years, 
that he thought it best for white people to have their own 
area to live in and their own places of worship to attend 
and their own schools. Mr. Morgan testified that during 
the 12 years he had been on the City Commission, the 
white and colored areas of Birmingham had been well ob­
served by members of both races until recently. This ques­
tion was propounded to Mr. Morgan:

“Q. In your opinion, I wish you would tell the court 
whether or not the zoning ordinance as drafted, approved 
and enforced and applied and construed and administered 
has been conducive to public peace and order.”

The plaintiff’s objection was sustained on the ground 
that under Buchanan versus Warley that is most certainly 
not in issue. (R. p. 94) .

The defendants offered to show that the ordinance had 
been conducive to public peace and order.

This question was propounded to Mr. Morgan:
“Q. Mr. Morgan, if the custom that has been observed 

here with respect to the residential sections, white and 
colored, by both races since you have been on the Com­
mission is upset or overturned, what in your judgment 
will be the effect on property values, residential property 
values, in the City of Birmingham?

The plaintiffs objection was sustained and the defend­
ants offered to show that it would result in a very sub­



stantial decrease in ad valorem residential value. (R. p. 95) .
This question as propounded to Commissioner Morgan:
“O. I would be glad if you would state to the court 

what in your judgment and opinion as a member of the 
Commission of the City of Birmingham would be the re­
sult on the City finances and its ability to render municipal 
services such as fire, police, health, street improvements, 
education, and matters of that kind, if a substantial de­
crease in municipal revenue is brought about by a disre­
gard of the custom that has prevailed for 12 years with 
respect to the residential zoning?

The plaintiffs objection was sustained and the defend­
ants offered to show that it would impair the City’s ability 
to the extent that it would probably not be able to render 
those essential services to the extent required and necessary 
and essential for the comfort and convenience of the citi­
zens. (R. p. 96) .

Commissioner Morgan further testified that the zoning 
ordinance was enacted to preserve peace and order in the 
community and for the best interest of all concerned and 
that the zoning ordinance was the reason why the building 
permit was denied.

The defendants offered to show that in the immediate 
territory of plaintiff’s lots six bombings had occurred with­
in the last few months as a result of the attempt of the 
negroes to invade that territory. The court refused to 
allow evidence of that character to be introduced. (R. 
p. 98).

Commissioner Morgan further testified that in his judg­
ment and opinion and belief that there is a clear and grave 
and present danger to the peace and public welfare in Bir­
mingham from the upsetting of the custom that has grown 
up under the zoning laws.

Commissioner Morgan testified (R. p. 102) that he ap­
pointed a committee to work out the situation and that as



12
a compromise the City Commission re-zoned thirty-five 
acres for negro residential property and that when the 
committee for the NAACP (National Association for the 
Advancement of Colored People) came before the Com­
mission with such forceful demands, namely, that they 
would not accept any compromise on this proposition, but 
that segregation had to be abandoned in Birmingham, he 
believed it had a strong bearing on the discontinuance of 
any effort to be helpful. It certainly had that effect on 
him. He further testified that he thought the action of 
the NAACP made further action on the part of the Com­
mittee futile at this time and that the demands of the 
Graymont Civic Association which rejected the recommen­
dation of the Zoning Board and the Committee did not 
have anything to do with the Committee resigning. He 
testified that the Graymont Civic Association is a civic 
club of about one hundred residents of that area out there.

N. L. Thompson, Manager of the Western Union Tele­
graph Company in Birmingham in response to a subpoena 
duces tecum (R. p. ] 06) produced a number of telegrams 
on file with the Western Union office in Birmingham for 
transmission and delivery to President Truman, Attorney 
General Tom C. Clark, A. A. Carmichael, Attorney Gen­
eral of Alabama, Commissioner Eugene Connor, Walter 
White, Chief of Police Floyd Eddins, which he testified 
were transmitted and delivered by the Western Union Tele­
graph Company. The first telegram dated August 13, 
1949, informed Attorney General Carmichael that,

“Racial tensions made acute by Friday night bomb­
ings of two ministers home. Situation demand swift 
and sure attention. NAACP pleads for your office to 
conduct a thorough investigation of every worth aspect 
of the problem. Not one of six bombings of Negro 
homes solved. Had it been the other way it is doubtful 
outcome would be same. NAACP will not relax its 
fight against racial zoning laws.” (R. p. 108) .



13
Telegram to President Truman on the same date in­

formed him that:

“Violent unsolved bombings of negro homes rose to 
six Friday night, August 12, in short span. Racial ten­
sions sharp enough for unhappy possibilities. . . .” 
(R. p. 109).

Telegram to Commissioner Eugene Connor on the same 
date informed him that:

“Just three days after you allegedly warned that quote 
we’re going to have bloodshed in this town unquote 
unless white citizens have their way about racial zoning 
homes of two negro ministers were bombed. These 
two become the sixth negro homes to be bombed. Not 
one arrest has been made. . . .” R. p. 110) .

Telegram to Attorney General Tom Clark on the same 
date informed him that:

“. . . . Six negro homes bombed over short period 
without single arrest. Racial tensions inflamed by un­
fortunate utterances by one public official. Three days 
after Commissioner Connor allegedly said quote we’re 
going to have more bloodshed in this town unquote in 
connection with the racial zoning question violence 
came.” (R. p. 111).

Telegram to Commissioner Jimmy Morgan on the same 
date informed him that:

“. • . . The NAACP will fight without let up all forms 
of racial zoning because such is unlawful. We shall 
continue to support and encourage negro citizens to 
stand firm at all cost and sacrifices for the precious 
right to own and live where one can buy or rent. 
NAACP urges round the clock protection for negro 
citizens in Smithfield area. Not one of six bombings of 
negro homes have been cleared up. . . .” (R. p. 112) .



14
Telegram to the President of the City Commission, 

Cooper Green, on the same date said:

. We urge day and night police protection for 
the negro homedwellers in Smithfield area. . . (R.
p. 113).

Telegram to the Sheriff of Jefferson County, Holt Mc­
Dowell, said:

“With two bombings Friday night, August 13, in 
Birmingham the number has risen to six unsolved 
bombings of negro homes. The community has been 
inflamed by unfortunate statements attributed to at 
least one city public official. . . .” (R. p. 114) .

All of these telegrams were signed by the Chairman, Exe­
cutive Committee, Birmingham Branch NAACP.

In a telegram to Chief of Police Floyd Eddins dated June 
2, 1949, it was said:

“A situation exists growing out of controversy over 
racial residential zoning which demands hourly police 
protection for Reverend Milton Curry of 1100 Center 
Street North and Reverend E. B. Deyampert of 1104 Cen­
ter Street North.”

This telegram was signed by the President of the Birming­
ham Branch, NAACP.

On May 23, 1949, a telegram was sent to Attorney Gen­
eral Tom Clark, saying:

“Urge conspiracy prosecution in case where Willie Ger­
man of 1100 North 11th Avenue denied occupancy of 
his home by threats and acts of Birmingham public offi­
cials May 21, 1949.” (R. p. 117) .

President Truman was advised by telegram dated June 2, 
1949, that:



15
“Because of fear that local police protection is break­

ing down in Smithfield area where racial zoning contest 
has provided controversy, the Birmingham Branch of 
NAACP voted Thursday night to bring this to your at­
tention. We urge that the prestige of the White House 
be thrown behind efforts of negro citizens to have pro­
tection here where their civil liberties are being threat­
ened.”

These telegrams were sent by the Birmingham Branch 
of the NAACP.

After the telegrams had been read in evidence without 
objection, the court said:

“THE COURT: Those telegrams are in, but I don’t 
see where they have any bearing on any issue in this 
case.” (R. p. 118) .

E. A. Camp, Jr., testified (R. p. 120) that he was Vice- 
President and Treasurer of the Liberty Life Insurance 
Company and handled investments for that company. 
That he was familiar with its policy with reference to mak­
ing loans on white and colored property in Birmingham 
and elsewhere. That his company makes loans on white 
residential property and colored residential property where 
in his opinion it is properly located and is good security 
for a loan. He was asked this question:

“Q. What is the policy of the Liberty National Life 
Insurance Company with reference to making loans on 
white and colored residential property?”

Plaintiff’s objection was sustained and defendants offered 
to show by this witness and other witnesses that the policy 
of the Liberty National and other life insurance companies 
is that they loan on white residential property where it is 
zoned white and loan on colored residential property where 
it is zoned colored. They do not loan on property that is in 
a mixed zone or in a twilight zone or in the path of being



16
changed from one classification to the other. That sta­
bilized conditions is one of the main factors taken into con­
sideration in making loans on property.” (R. p. 122) .

The defendants also offered to show that the building 
and loan associations, the mortgage companies, trust com­
panies, banks and other financial people have followed that 
same policy in Birmingham and elsewhere for many years. 
(R. P. 122).

The court declined to admit the evidence. Mr. Camp 
was then asked this question:

Q. Mr. Camp, in your opinion, I wish you would 
tell the court what effect the invasion of a white resi­
dential zone by negro citizens has on the appraised value 
and fair market value of property in Birmingham?”

The plaintiffs objection was sustained and the defend­
ants offered to show that it varies, causing depreciation 
from 25 to 50 percent, according to locality. (R. p. 123) .

W. Cooper Green, President of the City Commission of 
Birmingham testified (R. p. 124) that the Commission of 
Birmingham is the governing body of the City and is com­
posed of three members. He has special supervision over 
the financial department, the parks and playgrounds, the 
stadium and dog pound. There is a mixture of miscel­
laneous departments. He testified that he had lived in 
Birmingham forty-five years. He is familiar with the ter­
ritory in the controversial area in the North Smith field 
portion of Birmingham. He testified that he lived in the 
Graymont-College Hills area from 1922 to 1936. He re­
members a controversy arising between the white and 
colored people in 1922 or 1923 about whether Center 
Street would be the dividing line between the white and 
colored settlements out there. He attended the meeting. 
There was a committee representing the Graymont Civic 
Association, a colored committee representing the negro 
citizens. These committees met with the City Commission,



17
worked out a compromise and agreed on Center Street as 
the dividing line, except one little strip down at the 8th 
Avenue end of Center Street which was zoned colored later 
by the zoning board in 1926. The territory west of Center 
Street was to be white and the territory east of Center Street 
was to be colored. (R. p. 125) .

That settlement has been observed and abided by gen­
erally from that time until this controversy arose.

President Green identified a document which was pre­
pared under his supervision giving certain facts and figures 
about the City of Birmingham in 1946. It was in the 
nature of a report to the people of Birmingham of the con­
dition of affairs at that time. The document contains 
statements about population, owner occupied property, 
finance, schools, salaries, public health, libraries, municipal 
auditorium, parks and playgrounds, department of public 
welfare, housing, police and fire department, streets and 
highways, garbage collection, street lighting, showing the 
amount expended for the various services and the percent­
age of the revenue that was particularly expended for the 
negro citizens in Birmingham. Exhibit 16.

The defendants claimed that the information was rel­
evant to show the amount of money that is needed for the 
services rendered and that the facts stated therein showed 
that there was no discrimination against the negro race in 
Birmingham. (R. p. 127) .

The plaintiff’s objection was sustained and the defend­
ants then offered in evidence a document entitled “The 
1948 Municipal Tax Dollar, Condensed Statistical and 
Operational Data”, published and distributed to the citi­
zens of Birmingham by the City Commission. This was 
defendants’ Exhibit No. 17. The court sustained the plain­
tiff’s objection to the introduction of the document in evi­
dence.



18
Mr. Green testified that when the Graymont area was 

basically zoned in 1926, the zoning lines followed the 
lines of the agreement that the white and colored citizens 
reached in respect to said area in 1923. Mr. Green testi­
fied that after the whites and negroes reached the agree­
ment in 1923, and the property was zoned in 1926 there 
had been no challenge of the arrangement in any way, 
shape, form or fashion in the ten years he had been on the 
Commission until the recent controversy involving the in­
vasion of the area West of Center Street by some negroes 
arose.

Mr. Green testified that there had been no change in the 
zoning west of Center Street since 1926, but that on the 
north end about thirty acres was rezoned from white to 
colored and that the area rezoned was about ninety-five 
percent vacant.

President Green was asked this question:
“Q. I will ask you to tell his Honor what in your 

opinion would be the result of upsetting the custom that 
was translated into the zoning laws by the ordinance, zoning 
ordinance in 1926, with respect to white and colored areas 
in the Graymont section?”

Plaintiff’s objection was sustained and Mr. Green was 
then asked this question:

“Q. Mr. Green, I will ask you whether or not in your 
opinion there is a clear and present grave danger of jeopardy 
to life and property if the white section out there that we 
have been talking about is invaded by negroes?”

The plaintiffs objected and the witness answered.
“Yes, sir.”
The court sustained the objection. The defendants 

offered to show by this witness that in his opinion grave 
disorder and damage to property and jeopardy to life and 
limb would result from that situation. (R. p. 155).

The witness testified that the City of Birmingham was 
up to its tax limit. After he had so testified the court sus-



19
tained an objection whereupon the defendants offered to 
show that Birmingham is up to its tax limit and that it has 
no new sources of revenue that it could tap under the law, 
and if there is any substantial diminution in the ad valorem 
tax from residential property sources, the city’s ability to 
furnish necessary municipal services would be materially 
impaired. (R. p. 156) .

The witness testified that the zoning ordinance was being 
enforced to the best of his ability and that for the good of 
racial harmony, law and order the Commission upholds the 
ordinance and observes the principle that a negro can own 
land in one area that is zoned for white occupancy, but 
he is not allowed to occupy the land.

Mr. Green testified:
“I believe this matter goes beyond the written law, in j 

the interest of peace and harmony and good will and racial 
happiness.” “I think this thing creates bloodshed. Under 
the police powers to keep law and order, we have that au­
thority. There are some things that law cannot cover, and j 
I think this is one of them.” (R. p. 158) .

He testified that nothing except the zoning ordinance 
and its enforcement that he knewT of prevents the plaintiffs 
in this case in continuing to build their home on the land 
they bought.

Mr. Green was asked this question:
“Q. Mr. Green, in your opinion does the City Com­

mission of the City of Birmingham or the State of Alabama, 
both of them combined, have enough police force to pre­
vent race riots, violence and damage to property if the in­
vasion of white sections by negroes becomes general in Bir­
mingham?”

The plaintiff’s objection was sustained.
Mr. A. Key Foster testified (R. p. 162) that he was Vice- 

President of the First National Bank of Birmingham and 
had about twenty-five years experience in the banking busi­
ness which included the appraisal of mortgage loans on resi-



20
dential property in Birmingham. He testified that there 
has been observed in Birmingham a custom in substance 
that the white people remained in the white residential 
areas as zoned by the City and the negroes did the same 
thing with respect to areas zoned for negroes.

“Q. Was that fact taken into consideration in making 
mortgage loans and appraising property?”

Plaintiff’s objection was sustained and defendants offered 
to show that that was a very important question in the 
making of loans and the appraising of property and fixing 
values on it.

Mr. Foster testified that in the appraisal of property by 
financial institutions such as banks, insurance companies, 
mortgage loan companies, building and loan associations, 
and institutions of that kind, the location of the property 
and its stability of its classification is a very important 
factor. (R. p. 164) .

It was then asked:
"Q. I will ask you, Mr. Foster, if property is in the 

path of a contemplated change from white to colored classi­
fication, or from colored to white classification, if that is a 
factor that is taken into consideration in the appraisal of 
property?”

Plaintiff’s objection was sustained.
The court ruled that the elements that enter into the 

appraisal of property for the purpose of making mortgage 
loans was immaterial in the issuance of the case. (R. 
p. 164) .

The defendants offered to show all of the elements that 
enter into a property appraisal of property by a man ex­
perienced in that line of business for the purpose of show­
ing just how they do arrive at values. That the location 
and stability of classification is highly important. That 
there are other such things, such as the type of tenant who 
is going to occupy it, the type of occupant, whether white



21
or colored, whether professional or an artist, a laborer or 
merchant, or what not. (R. p. 165) .

Mr. Foster testified that he was a member of the com­
mittee of five appointed in 1949 by Commissioner Morgan 
to work out a solution of the controversy that arose be­
tween the negroes and whites over the Center Street zoning 
in the Graymont territory. That committee conferred 
with the negro committee several times.

Mr. Foster stated that the whole contention was that 
the colored people wanted some more room to build high 
class residential homes and the committee recommended 
that a line be drawn down the center of Center Street, that 
the territory east of Center Street be zoned colored, and 
west zoned white, and that the line be drawn east and west 
down 11th Avenue, that south of the line be white and 
north of the line over the hill, down the other side, wfhich 
is largely vacant, be zoned colored.

Mr. Foster testified that the two committees discussed 
the advisability of residential zoning as a social matter in 
Birmingham and that his committee explained to the negro 
committee that they felt for the sake of peace and harmony 
that there ought to be a segregation of races, regardless of 
whether there was any ordinance to that effect or not and 
it was generally agreed by them that that was the desire- 
able thing to do. The negro committee wanted to keep 
their people on their side of the established line if the 
white people would see that the white people stayed on 
their side. There were two blocks between 11th Court and 
11th Avenue which the committee recommended to be 
made into a park so that there would be sort of a zone be­
tween white and negroes. The matter was finally com­
promised by drawing a line down 11th Court instead of 
11th Avenue.

V. L. Adams testified (R. p. 171) that he was engaged 
in the coal business in Birmingham and lived in the Gray­
mont section for about twenty-six years on 9th Court. Mr.



22
Adams testified that he was a member of the Graymont 
Civic Association in 1923 when a controversy came up 
about Center Street being the dividing line between the 
white and colored races and that it was agreed that Center 
Street was to be the dividing line up to a certain point, and 
then it went back to the right some 180 or 200 feet, and 
then went diagonally across the hill there to about that 
bridge over the Frisco Railroad which is shown at the top 
of the map which is identified as defendants’ exhibit 1.

Mr. Adams testified that agreement was generally re­
spected by both white and negroes in that territory until 
three or four years ago when some negroes tried to break 
the white zone set up out there. Air. Adams testified that 
he knew the sentiment out in the Graymont section and he 
was asked:

“Q. I will ask you if in your opinion and judgment, 
if there is a clear and present grave danger to public peace 
and order, and to property values out there if the white 
section that is in force here is invaded by the negroes?”

Witness testified, “Very great.”
The court sustained the objection made after the wit­

ness answered and the defendants offered to show that 
there was such clear, present and grave danger to the public 
peace and order and to property value.

Mr. Walter E. Henley testified (R. p. 178) that he was 
born in Birmingham in 1877 and as a young man became 
connected with banking. He later left banking and under­
took the development and operation of some large coal 
properties and in 1925 returned to active banking since 
that time. He was President of the Birmingham Trust & 
Savings Company which is now the Birmingham Trust 
National Bank for twelve years and is now Chairman of its 
Board of Directors and actively engaged in the banking 
business. In his industrial experience he employed a great 
many negro citizens and in his banking business he has had 
a great many dealings with negroes, financing the construe-



23
tion and loans on their houses. Mr. Henley testified that 
his bank makes loans on white and negro residential prop­
erty, that he is familiar with residential property values in 
Birmingham generally and has been familiar with those 
values over a period of years. That the Trust Department 
of his bank under his supervision and direction has made 
large numbers of loans which were scattered all over the 
City of Birmingham, that he is familiar with the district 
known as the Graymont-College Hills section, North Smith- 
field.

Mr. Henley was asked:
“Q. I will ask you whether or not, if the restrictions in 

the zoning of Birmingham are removed from that territory 
and from residential property in Birmingham in general 
with respect to the areas that are classified white residential 
and colored residential, and the difference between them 
is blotted out or ignored or disregarded, whether or not as 
a matter of fact property values in the residential areas 
would decrease?”

Plaintiff’s objection was sustained, whereupon counsel 
for the defense stated to the court:

“MR. WILKINSON: We reserve an exception. It may 
be that we can save the time of calling a number of wit­
nesses to the stand. I wanted to elaborate on that con­
siderably, if your Honor please, and get them to explain 
why the property values would decrease, and to explain to 
the court that that is a fact. There is nothing speculative 
about that, it is just as certain to take place as the sun rises 
and sets, because there are certain well recognized stand­
ards in the financial world, and I thought the court would 
be entitled to that information for what it might be worth 
in this case. (R. p. 180) .

THE COURT: Well, I want you to make a full offer 
to show all the facts necessary. Under the decisions of the 
Supreme Court of the United States I don’t think it is ad­
missible in evidence, unless they change their rules.



24
MR. WILKINSON: Well, I beg to differ with the 

court about that, but I am not going to stop to argue it at 
this point. I will take that up in my argument. I want 
to be sure that I get the full factual picture before the 
court, or at least an effort to get it before the court.

THE COURT: I want you to have the full benefit of 
that opportunity too, for purposes of appeal in the case.

Q. Mr. Henley, I will ask you whether or not you know 
whether or not there is anything speculative about the 
effect upon property values, residential values in Birming­
ham if the provisions of the zoning law are no longer ap­
plicable and enforceable—

MR. MARSHALL: Objection.
Q—with respect to white and colored areas?
MR. MARSHALL: Objection.
THE COURT: Read me that question, Mr. Reporter.
(The question was read.)
THE COURT: I sustain the objection.
MR. WILKINSON: We reserve an exception. We 

offer to show if your Honor please by this witness that the 
effect upon residential property values in Birmingham, if 
the provisions of the zoning law with respect to white and 
colored areas is not enforceable is not a matter of specula­
tion, but that this witness can and will testify as a matter 
of fact that over a period of years this district, this City, 
and particularly this Graymont-College Hills area, has been 
built up, the residences have been built by white and 
colored alike, and financed by his institution and by other 
financial institutions in Birmingham, all of whom relied 
upon the stability which it was believed that the zoning 
laws afforded' that property, to colored and white alike. 
And if those provisions are no longer enforceable, that the 
protection it was believed that the property enjoyed, both 
white and negro, is removed, the stabilizing effect is des­
troyed, and that when that is recognized, that as a matter 
of fact the property thus affected very materially depreciates



25
in value from 25 per cent on up, according to its location 
and character. (R. p. 182) .

I don’t like to put a long string of questions if your 
Honor understands just what I am trying to show.

THE COURT: That’s all right. I think I understand 
it, and I want you to have that showing, but I don’t think 
the evidence is admissible.”

The defendants offered to, but were not allowed to show 
by Mr. Henley that out of the vast number of contacts that 
he has had with members of the negro race that they have 
been outspoken in their approval of residential segregation, 
and outspoken in their recognition of its value to their race 
as well as to the white race. Mr. Henley testified that a 
great many houses had been built in the Graymont-College 
Hills section both east and west of Center Street since 1926. 
He was then asked this question:

“Q. Mr. Henley, I would like to ask you whether or 
not in view of your long residence and experience in Birm­
ingham you know of any better way for society in Birm­
ingham to protect itself against the result of the feeling of 
race hostility that has been manifested here than by the 
zoning laws of the City which we claim were in force and 
effect?” (R. p. 184) .

The plaintiff’s objection was sustained and defendants 
offered to show the witness did not know of any better 
method.

Defendants offered in evidence (R. p. 185) a portion of 
the transcript of the proceedings of a negro mass meeting 
in Birmingham on August 17, 1949 in which the nature 
and extent of the violence in the Smithfield area was des­
cribed and in which the speaker said:

“We will not cease calling on you until the flag of victory 
shall not only wave over the battle field of Center Street, 
but the flag of victory will be waving all over Birmingham.”

The plaintiff’s objection was sustained.



26
Mr. H. B. Hanson, Jr., testified (R. p. 188) that he is 

the immediate past President of the Graymont Civic Asso­
ciation, was President from July, 1947 to July, 1949. He 
moved into that community after returning from the war 
in 1946. He had no knowledge of any agitation going on 
in reference to negro citizens crossing to Center Street at 
the time he moved out there. That agitation came to his 
knowledge after he purchased his home in that area. Mr. 
Hanson testified that he made a careful study of each block 
to see what the situation was, trying to be completely fair. 
That the negro population is fairly dense up to Second 
Street and then thins out in the last two blocks. There are 
quite a few vacant lots east of Center Street on top of the 
hill, going along Center Street.

Mr. Hanson testified that he commanded five thousand 
negroes during the war and that the ill will between the 
races in that area had reached a point that when he woke 
up in the night and heard a noise, he feared that it was a 
bombing or something was happening. It was getting 
desperate, so he went to work to get a fair solution of the 
problem. He testified that he worked to get the thirty-five 
acres zoned for residential purposes and that north of 11th 
Court and West of Center Street the area is ninety-eight 
percent vacant. (R. p. 192) .

The witness testified that he located in that area because 
it was close to Birmingham-Southern College and he wanted 
to send his children to that Methodist College.

Commissioner Eugene Connor, the Commissioner of 
Public Safety in Birmingham testified (R. p. 203) he was 
a member of the legislature of Alabama for three sessions, 
a railroad man, farmer, traveling salesman before he be­
came Commissioner of Public Safety.

Commissioner Connor testified that the zoning laws had 
been generally and universally observed by both races so 
far as the residential areas are concerned during the twelve 
years he has been a member of the City Commission until



27
this controversy arose. He was not allowed to testify that 
during the time he had been on the Commission the zoning 
law has as a matter of fact protected the citizens, both white 
and colored. He was then asked this question:

“Q. I will ask you as an experienced legislator and as 
an experienced member of the City Commission, whether 
or not you know of any better way of the City of Birming­
ham protecting its citizens against the consequences arising 
from the feeling of race hostility than the present zoning 
ordinance of the City of Birmingham?”

The plaintiff’s objection was sustained and the defend­
ants offered to show that the zoning law does represent the 
best judgment.

Mr. Connor testified that practically seventy-five per­
cent of the houses in the territory west of Center Street have 
been built since 1926 when the city was zoned and that 
about seventy-five percent of the negro houses east of Cen­
ter Street had been built since the city was zoned.

Mr. Connor testified that Birmingham does not have an 
adequate police department and has not had an adequate 
police department since he has been Police Commissioner. 
All available money has been used to provide an adequate 
police department. He asked for fifty additional police 
last September, was turned down for the reason that the 
city did not have the money. (R. p. 209) .

Chief of Police Floyd Eddins testified (R. p. 210) that 
he has been with the Police Department of the City of Bir­
mingham since November, 1919. He has served as patrol­
man, sergeant, captain, assistant chief and chief and has 
been chief for seven years. There was introduced in evi­
dence a statement prepared by Chief Eddins showing the 
number of policemen by square miles patrolled and the 
yearly budget of cities in the Birmingham class. Accord­
ing to this statement, Atlanta, Georgia has 464 policemen 
to patrol 34 miles of territory with a yearly budget of 
$1,823,125.12. Birmingham has 333 policemen to patrol



28
52 square miles of territory with a yearly budget of $1,179- 
960.00. Indianapolis, Indiana, has 653 policemen to patrol 
55 square miles of territory with a yearly budget of $2,524,- 
468.81.

This table showed that because of lack of money Birm­
ingham is handicapped in the matter of police protection.

Chief Eddins testified that racial tension has been high 
in Birmingham particularly in that part of Birmingham 
known as the Graymont-College Hills area. He was not 
allowed to testify about the number of bombings and other 
disorders in that area that have occurred since the contro­
versy arose, but which the defendants offered to show. The 
court ruled that they were not material.

Chief Eddins testified that up until 1947 the zoning law 
adopted in 1926, together with such ordinances as have 
been adopted from time to time since that time have been 
generally and universally observed by the white and colored 
population in Birmingham. (R. p. 215) .

Commissioner Connor was recalled as a witness and testi­
fied that Mary Means Monk never took any appeal from 
the action of Mr. Hagood, the administrative officer, to 
the Zoning Board or to the City Commission. (R. p. 217) .

The defendants undertook to show that in a mandamus 
proceeding which Mary Means Monk filed against the 
building inspector, that when the point was raised that she 
had not taken an appeal from Mr. Hagood’s refusal to issue 
the building permit that she dismissed the petition. The 
court stated that has already shown in this case and sustained 
plaintiff’s objection. Defendants offered to show those 
facts.

Commissioner Morgan was recalled as a witness and 
under question by the court stated that it is the policy of 
the City Commission to enforce Sections 1604 and 1605 of 
the City Code and Ordinance 709-F. (R. p. 244) .

The District Court ruled that the defendants’ conten­
tions “both factual and doctrinal” were not material “to



29
the issue of the constitutionality of such ordinances” and 
on authority of Buchanan v. Warley, 245 U. S., 60, ad­
judged the aforesaid provisions in the zoning ordinances 
unconstitutional as in violation of the Fourteenth Amend­
ment and ordered an injunction against, their further en­
forcement. The defendants in the court below appealed 
from that final judgment. (R. p. 246).

PROPOSITIONS OF LAW

I.
The Fourteenth Amendment embraces two concepts of 

liberty absolute and non-absolute rights.

Cantwell v. Connecticut, 310 U. S. 296, 60 Sup. Ct. 900; 
84 L. Ed. 1213.

II.
The right to occupy a particular piece of real estate for 

a particular purpose is not an absolute right.

Reinman v. Little Rock, 237 U. S. 171; 35 Sup. Ct. 511;
59 L. Ed. 900.

Hadacheck v. Sebastian, 239 U. S. 394; 36 Sup. Ct. 143;
60 L. Ed, 348.

Pierce Oil Co. v. Hope, 248 U. S. 498; 39 Sup. Ct. 172; 
/ 63 L. Ed. 381.

*7 Euclid v. Ambler Realty Co., 272 U. S. 365; 47 Sup. Ct. 
114; 71 L. Ed. 303.

Munn v. Illinois, 94 U. S. 113; 24 L. Ed. 77.

III.
Exceptional circumstances will justify discrimination on 

the basis of the racial descent of a citizen.

Oyama v. California, 332 U. S. 633; 68 Sup. Ct. 269; 
92 L. Ed. 249.



30
Hirabayashi v. U. S., 320 U. S. 81; Sup. Ct. 1375; 

87 L. Ed. 1774.
Korematsu v. U. S., 323 U. S. 214; 65 Sup. Ct. 193; 89 

L. Ed. 194.

IV.

Reasonable restraints upon the use to which property 
may be devoted are not unconstitutional.

Euclid v. Ambler Realty Co., Supra.
Muller v. Oregon, 208 U. S. 412; 28 Sup. Ct. 324; 52 L. 

Ed. 551.
Jacobson v. Massachusetts, 197 U. S. 11; 25 Sup. Ct. 358; 

49 L. Ed. 643.
Buck v. Bell, 274 U. S. 200; 47 Sup. Ct. 584; 71 L. Ed. 

1000.
West Coast Hotel Co. v. Parrish, 300 U. S. 379; 57 Sup. 

Ct. 578; 81 L. Ed. 703.
State ex rel Carter v. Harper, 182 Wis. 148; 196 NW 451; 

33 ALR 269.
Norton v. Randolph, 176 Ala. 381; 58 So. 283; 40 LRA 

(NS) 129—Am. Cas. 1915 A 714.

V.

A state may prohibit intermarriage between whites and 
negroes.

Alabama Constitution (1901), Section 102.
Plessy v. Furguson, 163 U. S. 537.
Pace v. State, 69 Ala. 231; 44 A Rep. 513; Affd 106 U. S. 

583.
Story v. State, 178 Ala. 98; 59 So. 481.

VI.

A state may require separation of the races in schools.

Alabama Constitution (1901), Section 256.
Plessy v. Furguson, Supra.



31
State v. Board of School Commissioners, 226 Ala. 62; 

145 So. 575.

VII.

A state may require the separation of the races on intra 
state carriers.

Henderson v. U. S.;J30 Fed. Supp. 32. 
Plessy v. Furguson, Supra.
West Chester Co. v. Miles, 55 Pa. St. 209

VIII.

The state may separate the races in parks, playgrounds, 
swimming pools and golf courses.

Boyer v. Garrett, (MMS) U. S. District Court, Mary­
land, Dec. 30, 1949.

IX.

The privileges and immunities protected by the Four­
teenth Amendment are only those privileges and immuni­
ties which owe their existence to the federal government.

Prudential Insurance Co. v. Cheek, 259 U. S. 530; 42 
Sup. Ct. 516; 66 L. Ed. 1044.

X.

The enforcement of a statute over a long period of years, 
without its constitutionality being challenged may be con­
sidered a virtual recognition of its constitutionality.

Worthington v. District Court, 37 Nev. 212; 442 Pac. 
230; Am. Cus. 1916 E 1097.

Elmore County v. Tallapoosa County, 221 Ala. 182; 128 
So. 158.

Kyle v. Abernathy, 46 Colo. 214; 102 P. 158.



32
XI.

A policy of racial exclusion may be essential to the safety 
of invested funds.

Dorsey v. Stuyvesant Town Corp., 87 NE (2d) 241.

XII.

Supporting facts essential to a decision of constitutional 
questions of novel and far reaching importance should be 
definitely found by the lower court upon adequate evi­
dence.

Ne'ctow v. City of Cambridge, 277 U. S. 183; 72 L. Ed.
842; 48 Sup. Ct. 447.

Bordens Co. v. Baldwin, 293 U. S. 194; 55 Sup. Ct. 187;
79 L. Ed. 281.

U. S. v. Caroline Products Co., 304 U. S. 144; 58 Sup.
Ct. 778; 82 L. Ed. 1234.

Gompers v. U. S., 233 U. S. 604; 34 Sup. Ct. 693; 58 L.
Ed. 115.

XIII.

Segregation per se is not prohibited by the Constitution 
of the United States.

Camming v. Richmond County Board of Education, 175 
U. S. 528; 20 Sup. Ct. 197; 44 L. Ed. 262.

Gong Lum v. Rice, 275 U. S. 78; 48 Sup. Ct. 91; 72 L. 
Ed. 172.

Gaines v. Canada, 305 U. S. 337; 59 Sup. Ct. 232; 83 L. 
Ed. 208.

People v. School Board, 161 N. Y. 598; 56 NE 81.
State v. Board of Trustees, 126 Ohio St. 290; 185 NE 

196.

XIV.
A restriction on one form of liberty may be justified on



33
the very ground that it removes an impediment to another 
liberty.

Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct. 383; 42 L. 
Ed. 780.

Texas & N. O. RR v. Brotherhood R  & S Clerks, 281 
U. S. 548; 50 Sup. Ct. 427; 74 L. Ed. 1034.

West Coast Hotel Co. v. Parrish, 300 U. S. 379; 57 Sup. 
Ct. 578; 81 L. Ed. 703.

Miller v. Schoene, 276 U. S. 272; 48 Sup. Ct. 246; 72 
L. Ed. 568.

XV.

Zoning regulations may result to some extent in the 
taking of property and yet not be deemed confiscatory or 
unreasonable.

State v. Hillman, 110 Conn. 92; 157 Atl. 294.
Taylor v. Hackensack, 137 NJL 139; 58 A (2d) 788; 

Affd 62 A (2d) 686.
Cassee Realty Co. v. Omaha, 144 Neb. 753; 14 NW (2d) 

600.
Cantwell v. Connecticut, Supra.
Nectoic v. City of Cambridge, Supra.

XVI.

The police power may be put forth in aid of what is 
sanctioned by usage or held by the prevailing morality or 
strong and preponderant opinion to be greatly and imme­
diately necessary to the public welfare.

Noble State Bank v. Haskell, 219 U. S. 104; 55 L. Ed.
112; 31 Sup. Ct. 186.



S4

FIRST ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Commissioner Mor­
gan:

“Q. In your opinion, I wish you would tell the court 
whether or not the zoning ordinance as drafted, approved 
and enforced and applied and construed and adminis­
tered has been conducive to public peace and order.” 
(R. p. 94) .

SECOND ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that the zoning ordinances had been conducive to 
public peace and order. (R. p. 94) .

THIRD ASSIGNMENT OF ERROR
The court erred in sustaining the plaintiffs’ objection to 

the following question propounded to Commissioner Mor­
gan:

“Q. Mr. Morgan, if the custom that has been ob­
served here with respect to the residential sections, white 
and colored, by both races since you have been on the 
Commission is upset or overturned, what in your judg­
ment will be the effect on property values, residential 
property values in the City of Birmingham.” (R. p. 94) .

FOURTH ASSIGNMENT OF ERROR
The court erred in sustaining the plaintiffs’ objection to 

the following question propounded to Commissioner Mor­
gan:

“Q. I would be glad if you would state to the court 
what in your judgment and opinion as a member of the 
Commission of the City of Birmingham would be the



35
result on the City finances and its ability to render mu­
nicipal services such as fire, police, health, street im­
provements, education, and matters of that kind, if a 
substantial decrease in municipal revenue is brought 
about by a disregard of the custom that has prevailed 
for 12 years with respect to the residential zoning?” 
(R. p. 95).

FIFTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that it would impair the City’s ability to the extent 
that it would probably not be able to render those essential 
services to the extent required and necessary and essential 
for the comfort and convenience of the citizens. (R. p. 96) .

SIXTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that in the immediate territory of plaintiff s lots six 
bombings had occurred within the last few months as a 
result of the attempt of the negroes to invade that territory. 
(R. p. 98) .

SEVENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs objection to 
the following question propounded to Mr. E. A. Camp, Jr.:

“Q. What is the policy of the Liberty National Life 
Insurance Company with reference to making loans on 
white and colored residential property?” (R. p. 121) .

EIGHTH ASSIGNMENT OF ERROR
The court erred in refusing to allow the appellants to 

show that the policy of the Liberty National and other life 
insurance companies is that they loan on white residential 
property where it is zoned white and loan on colored resi­
dential property where it is zoned colored and that they



36
do not loan on property that is in a mixed zone or in a 
twilight zone or in the path of being changed from one 
classification to the other and that stabilized conditions is 
one of the main factors taken into consideration in making 
loans on property. (R. p. 22).

NINTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that the; building and loan associations, the mortgage 
companies, trust companies, banks and other financial 
people have followed that same policy in Birmingham and 
elsewhere for many years. (R. p. 22) .

TENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiff’s objection to 
the following question propounded to Mr. E. A. Camp, Jr.:

“O. Mr. Camp, in your opinion, I wish you would 
tell the court what effect the invasion of a white resi­
dential zone by negro citizens has on the appraised value 
and fair market value of property in Birmingham?” 
(R. p. 123).

ELEVENTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
introduce in evidence Exhibit 16 which document gives 
certain facts and figures about the City of Birmingham in 
1946. (R. p. 127).

TWELFTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the introduction of Exhibit No. 17 entitled “The 1948 
Municipal Tax Dollar, Condensed Statistical and Opera­
tional Data.” (R. p. 139) .



37
THIRTEENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to President Green:

“Q. I will ask you to tell his Honor what in your 
opinion would be the result of upsetting the custom that 
was translated into the zoning laws by the ordinance, 
zoning ordinance in 1926, with respect to white and 
colored areas in the Graymont section?” (R. p. 154) .

FOURTEENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to President Green:

“Q. Mr. Green, I will ask you whether or not in your 
opinion there is a clear and present grave danger of 
jeopardy to life and property if the white section out 
there that we have been talking about is invaded by 
negroes.” (R. p. 155).

FIFTEENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to President Green:

“Q. Mr. Green, in your opinion does the City Com­
mission of the City of Birmingham or the State of Ala­
bama, both of them combined, have enough police force 
to prevent race riots, violence and damage to property if 
the invasion of white sections by negroes becomes general 
in Birmingham?” (R. p. 160) .

SIXTEENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Mr. A. Key Foster:



38
“Q, Was that fact taken into consideration in making 

mortgage loans and appraising property?” (R. p. 163) .

SEVENTEENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Mr. A. Key Koster:

“Q. I will ask you, Mr. Foster, if property is in the 
path of a contemplated change from white to colored 
classification, or from colored to white classification, if 
that is a factor that is taken into consideration in the 
appraisal of property?” (R. p. 164) .

EIGHTEENTH ASSIGNMENT OF ERROR

The court erred in ruling that the elements that enter 
into the appraisal of property for the purpose of making 
mortgage loans was immaterial in the issuance of the case. 
(R. p. 164) .

NINETEENTH ASSIGNMENT OF ERROR
The court erred in refusing to allow the appellants to 

show all of the elements that enter into a property appraisal 
of property by a man experienced in that line of business 
for the purpose of showing just how they do arrive at values. 
That the location and stability of classification is highly 
important. (R. p. 165) .

TWENTIETH ASSIGNMENT OF ERROR
The court erred in sustaining the plaintiffs’ objection to 

the following question propounded to Mr. V. L. Adams:

“Q. I will ask you if in your opinion and judgment, 
if there is a clear and present grave danger to public 
peace and order, and to property values out there if the 
white section that is in force here is invaded by the 
negroes?” (R. p. 174) .



39
TWENTY-FIRST ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that there was such clear, present and grave danger 
to the public peace and order and to property values. 
(R. p. 175).

TWENTY-SECOND ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Mr. Walter E. Hen­
ley:

‘Q. I will ask you whether or not, if the restrictions 
in the zoning of Birmingham are removed from that ter­
ritory and from residential property in Birmingham in 
general with, respect to the areas that are classified white 
residential and colored residential, and the difference 
between them is blotted out or ignored or disregarded, 
whether or not as a matter of fact property values in the 
residential areas would decrease? (R. p. 180) .

TWENTY-THIRD ASSIGNMENT OR ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Mr. Walter E. Hen­
ley:

“Q. Mr. Henley, I will ask you whether or not you 
know whether or not there is anything speculative 
about the effect upon property values, residential values 
in Birmingham if the provisions of the zoning law are no 
longer applicable and enforceable—” (R. p. 181) .

TWENTY-FOURTH ASSIGNMENT OF ERROR
The court erred in refusing to allow the appellants to 

show that out of the past number of contacts that he has 
had with members of the negro race that they have been 
outspoken in their approval of residential segregation, and



40
outspoken in their recognition of its value to their race as 
well as to the white race. (R. p. 183) .

TWENTY-FIFTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Mr. Walter E. Hen­
ley:

“Q. Mr. Henley, I would like to ask you whether 
or not in view of your long residence and experience in 
Birmingham you know of any better way for society in 
Birmingham to protect itself against the result of the 
feeling of race hostility that has been manifested here 
than by the zoning laws of the City which we claim were 
in force and effect?” (R. p. 184) .

TWENTY-SIXTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show a portion of the transcript of the proceedings of a 
negro mass meeting in Birmingham on August 17, 1949 
in which the nature and extent of the violence in the Smith- 
field area was described. (R. p. 188).

TWENTY-SEVENTH ASSIGNMENT OF ERROR

The court erred in sustaining the plaintiffs’ objection to 
the following question propounded to Commissioner Con­
nor:

“Q. I will ask you as an experienced legislator and 
as an experienced member of the City Commission, 
whether or not you know of any better way of the City 
of Birmingham protecting its citizens against the conse­
quences arising from the feeling of race hostility than the 
present zoning ordinance of the City of Birmingham?” 
(R. p. 206).



41

TWENTY-EIGHTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show the number of bombings and other disorders in the 
Graymont-College Hills area that have occurred since the 
controversy arose. (R. p. 214) .

TWENTY-NINTH ASSIGNMENT OF ERROR

The court erred in refusing to allow the appellants to 
show that grave disorder and damage to property and 
jeopardy to life and limb would result if the white section 
in the Graymont area is invaded by negroes.

THIRTIETH ASSIGNMENT OF ERROR

The court erred in rendering the final judgment that 
was rendered in this cause. (R. p. 249).



42

ARGUMENT

May It Please The Court—

PROPOSITION I.

The Court erred in holding that Buchanan v. Warley, 
245 U. S. 60, required a declaration that the Birming­
ham Zoning Law is unconstitutional.

Inasmuch as the action of the trial court was based on 
Buchanan v. Warley, supra, and some similar cases cited 
by the District Judge, we think it proper to point out that 
Buchanan v. Warley was not a zoning law case. The ques­
tion involved in that case was clearly stated by the court 
in the following language:

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

M. -Sf. M.-7f- "7\- "ft- "A*

“In the face of these constitutional and statutory pro­
visions, can a white man be denied, consistently with due 
process of law, the right to dispose of his property to a



43
purchaser by prohibiting the occupation of it for the 
sole reason that the purchaser is a person of color in­
tending to occupy the premises as a place of residence? 
(emphasis supplied) .

* -4u ■&£. 41.*7v' -7S- *7V

“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 per­
son of color and of a colored person to make such dis­
position to a white person.

Jit. At- -it- «M.W  Vi" -A* VT

“We think this attempt to prevent the alienation of 
the property in question to a person of color was not a 
legitimate exercise of the police power of the state, and 
is in direct violation of the fundamental law enacted in 
the Fourteenth Amendment of the Constitution prevent­
ing state interference with property rights except by due 
process of law. That being the case, the ordinance can­
not stand.”

We have quoted liberally from the opinion in order that 
it will clearly appear that the ordinance was construed as 
an attempt to prevent a white man from alienating his 
property, from selling and conveying it to a negro, and as 
thus construed, only the attempt to prevent the white man’s 
right to alienate, to convey to a negro was involved, and 
only that point was decided.

An inhibition on the right of occupancy is not an inhibi­
tion on the right to dispose of property in the light of later 
decisions of the United States Supreme Court and the de­
cisions of the courts of last resort of various states in dealing 
with zoning laws.



44
In the case at bar, the right to alienate, to sell and con­

vey to a negro is not involved. The right the court is ask­
ed to protect in this case, is the alleged right of the plain­
tiff, Mary Means Monk, and the other negro plaintiffs, to 
occupy a particular piece of property, in a white neighbor­
hood, as a place of residence; the right to devote a particu­
lar piece of property to a particular use.

The Fourteenth Amendment embraces two concepts of 
liberty, one absolute, the other not absolute.

Cantwell v. Connecticut, 310 U. S. 296; 60 Sup. Ct. 900.

The right to think, the right to believe, the right to buy, 
^  to sell and to convey real estate, are illustrations of phases 

of liberty which are absolute. They are not subject to 
regulation under the police power, because under no con- 
ceiveable set of circumstances can the exercise of those 
phases of liberty injure the public.

/ On the other hand, the right to occupy a particular piece 
io f  real estate, for a particular purpose, is not an absolute 
( right under the constitution. The exercise of that right 
may be regulated or prohibited, if necessary, in the public 
interest. Thus in Reinman v. Little Rock, 237 U. S. 171,
35 Sup. Ct. 511, 59 L. ed. 900, an ordinance was sustained 
that prohibited the operation of a livery stable in a certain 
area in Little Rock; Hadacheck v. Sebastain, 239 U. S. 394,
36 Sup. Ct. 143, sustained an ordinance prohibiting the ope­
ration of a brick yard in a certain area, and Pierce Oil Co. 
v. Hope, 248 U. S. 498, 39 Sup. Ct. 172, 63 L. ed. 381, sus­
tained a law prohibiting the storage of petroleum within 
300 feet of a dwelling.

The Supreme Court of the United States has recognized 
that most exceptional circumstances will justify discrimina­
tion on the basis of the racial descent of a citizen.



45
Oyama v. California, 332 U. S. 633; 68 S. Ct, 269, 92 

L. Ed. 249.
Hirabayashi v. U. S., 320 U. S. 81, 63 S. Ct. 1375, 87 L.

Ed. 1774.
Korematsu v. U. S., 323 U. S. 215; 65 Sup. Ct. 193, 89 

L. Ed. 194.

While we most earnestly contend that a negro is not ex­
cluded from a residential area zoned for white by the Bir­
mingham ordinance solely because he is a Negro, but solely 
because of the extraordinary and most exceptional injury \ 
to the public that will result from his exercising the right \ *•"' 
to live in a white residential area, we mention the cases 
cited for the purpose of showing that even if the court 
should disagree with us about that, and decide that the j 
exclusion is based on color solely, then color under the 
circumstances is a sound basis for the ordinance.

The Constitution does not speak of the right to occupy 
a particular piece of property as a residence. It speaks of 
liberty and property and prohibits the deprivation of liber­
ty or property without due process of law. As we have 
shown, the right to occupy a particular piece of real estate 
for residential purposes is not an absolute right, but a right 
whose exercise may be prohibited, in the public interest 
if there is adequate basis for it. If the exercise of that 
right will injure society to the extent set forth in the 
answer, then its exercise may be prohibited, if that be rea­
sonably necessary to avert the threatened disaster.

This, as we understand it is the doctrine of Euclid v. I 
Ambler Realty Company, 272 U. S. 365; 47 S. Ct. 114; 71 '
L. ed. 303.

In that case, in explaining the basis for its decision that 
the right to occupy a particular piece of property for a 
particular purpose is not absolute and uncontrollable, the 
Supreme Court of the United States said:



46
“Until recent years, urban life was comparatively sim- 

ple.”
# # # #

“Regulations, the wisdom, necessity, and validity of 
which, as applied to existing conditions, are so apparent 
that they are now uniformly sustained, a century ago, or 
even a half century ago, probably would have been re­
jected as arbitrary and oppressive.”

The court then pointed out that the scope of the appli­
cation of constitutional guarantees must expand or contract 
to meet new and different conditions which are constantly 
coming within their field of operation, and that now, there 
is no serious difference of opinion in respect of the validity 
of laws excluding from residential sections offensive trades, 
industries and structures likely to destroy the desireability 
of the district as a residential section.

Thus has the Supreme Court of the United States put 
at rest any possible controversy in respect of the qualified 
character of the right to occupy a particular piece of prop­
erty for a particular purpose. Thus has the Supreme Court 
of the United States definitely decided that the right to 
occupy a particular piece of real estate for a particular pur­
pose is not an absolute, uncontrollable right, but is an 
aspect of liberty, subject to regulation in the public in­
terest.

The power under the Constitution to restrict the exer­
cise of certain aspects of liberty has had many illustrations. 
Statutes have been sustained limiting the number of hours 
a woman might work in any one day in a factory, Muller v. 
Oregon, 208 U. S. 412, 28 S. Ct. 324, 52 L. ed. 551; re­
quiring compulsory vaccination, Jacobson v. Massachusetts, 
197 U. S. 11, 25 S. Ct. 358, 49 L. ed. 643; authorizing the 
sterilization of the “probable potential parent of socially 
inadequate offspring”, Buck v. Bell, 274 U. S. 200, 47 S. Ct. 
584, 71 L. ed. 1000, providing a minimum wage for woman,



47
West Coast Hotel Company v. Parrish, 300 U. S. 379, 57 
S. Ct. 578; 81 L. ed. 703.

Other illustrations might be added.
The courts have long since recognized and declared that,

“Although one owns property, he may not do with it 
as he pleases, any more than he may act in accordance 
with his personal desires. As the interest of society justi­
fies restraints upon individual conduct, so, also, does it 
justify restraints upon the use to which property may be 
devoted.”

State, ex rel Carter v. Harper, 182 Wis. 148; 196 N.W. 
451; 33 A.L.R. 269.

That doctrine is illustrated in Alabama by the rule that 
a “spite fence” may be abated.

Norton v. Randolph, 176 Ala. 381, 58 So. 283, 40 L.R.A.
(NS) 129; Ann. Cas. 1915A, 714.

These authorities make it clear, we think, that the plain­
tiffs right to occupy the property described in the com­
plaint is not an absolute, uncontrollable right, but a right 
which may be regulated or prohibited according to the 
circumstances and conditions.

Let’s examine some of the immediate dangers to the 
public from a decision that a Negro has a right to live in 
a white residential district in Birmingham.

(1) All residential property values are lowered from 
25% to 40%, even if the Negro never exercises the right.

“Infiltration of incompatible races has always been a 
red flag to the appraiser. . . .  No one thing can so quickly 
depress values as the beginning of a race movement.” 

THE APPRAISAL JOURNAL, January, 1944.

If a Negro never set foot in a white residential area in 
Birmingham, but it is decreed that he may do so if he sees



48
fit, down go property values, because all residential sec­
tions in Birmingham immediately become “mixed” areas, 
deprived of the protection they have enjoyed under the 
zoning law, and under established custom for more than a 
quarter of a century. It is little short of a calamity for 
thousands of white and black to have from 25% to 40% of 
the value of their homes wiped out over night. When no 
one knows what minute a Negro or a white person as the 
case may be will move in next door, a state of unrest is 
created, many are ready to sacrifice property, panic grips 
the people, and the social, political, and economic life of 
the entire city is tremendously disturbed.

(2) The decrease in ad valorem taxes resulting from the 
decrease in values of all residential property, would require 
a drastic curtailment of all municipal functions. White and 
black alike would have to get along without adequate 
police and fire protection; without health service, garbage 
collection would be practically abandoned and the poor 
would suffer worse than the rich because the poor are not 
situated to dispose of their own garbage. Little children 
would be deprived of even the present inadequate educa­
tional facilities.

We want this court to visualize what will happen when 
j a situation like that comes to pass in Birmingham. ONCE 
j THE HEAD OF THE HOUSE CONCLUDES THAT 
THE NEGRO IS RESPONSIBLE FOR THE COL- 

j \  LAPSE OF THESE MUNICIPAL FUNCTIONS IT  RE­
QUIRES NO IMAGINATION TO VISUALIZE A 
TEMPTATION TO EXTERMINATE THE NEGRO. 

I All of the power on earth could not keep blood from flow- 
i ing and it would continue to flow until the cause is re­
moved.

The federal judiciary precipitated a bloody civil war by 
an ill advised decision in the Dred Scott case. We beg this 
court, in God’s name, not to plunge our people into a race 
war by an ill advised decision in this case.



49
What we have outlined will happen if it is declared that 

a Negro has the right to live in a white residential district, 
even if he never attempts to do so. The economic effect 
of such a decision will create a situation that will never be 
tolerated in Birmingham.

Suppose the Negro actually undertakes to live in a white 
residential area. What then? The law making body of 
the City of Birmingham, tells the court under oath, the 
same oath to support the Constitution of the United States 
that a judge takes, that

“ (b) When attempts have been made by members 
of one race to enter for the purposes of a permanent 
residence into an area commonly recognized as set aside 
for members of the other race, VIOLENCE, DISTURB­
ANCES OF THE RACE, DESTRUCTION OF PROP­
ERTY AND LIFE has resulted almost without ex­
ception.”

“ (c) This Commission further finds. . . . that in the 
event attempts shall now or in forseeable future be made 
by members of one race to establish residence in areas 
heretofore regarded as set apart for the residence of mem­
bers of the other race, BREACHES OF THE PEACE, 
RIOTS, DESTRUCTION OF LIFE AND PROP­
ERTY will follow.”

This court can disregard that solemn warning; it can say 
that the City Commission doesn’t know what it is talking 
about; but the average Birmingham citizen will continue 
to believe that every policeman in Birmingham knows 
more about what will happen here, if zoning restrictions 
are nullified, than all the judges in Christendom.

To say that the Birmingham public must be exposed 
every day to a race riot, that it must suffer depreciation in 
all residential property values  ̂submit to astronomical prop­
erty damage from time to time, lose essential municipal 
services and sustain the loss of lots of lives of white and



50
blacks, all because the Fourteenth Amendment is supposed 
to be in the way of the City preventing such a tragedy by 
separating the races in residential districts is to put a low 
estimate on the mental alertness of this court.

Buchanan v. Warley, supra, has no application to this 
case. What these plaintiffs ask for is judicial authority to 
wreck Birmingham, because they are black. That is what 
would happen, if Negroes invade the white residential 
sections in that City.

b.

The zoning ordinances of Birmingham do not “take” 
plaintiffs property without due process of law.

The claim that by depriving plaintiffs of the right to 
live on the lots they own, the zoning law takes their prop­
erty without due process of law, is not well founded. If 
the zoning law prohibited them from selling their property, 
Buchanan v. Warley, supra, would be apt authority for the 
claim that their property was taken without due process. 
That question, however, is not present in this case.

It seems to be well settled that a zoning law which pro­
hibits certain uses to which real property might be devoted, 
compensates for the deprivation of that use, by the en­
hanced and stabilized value of the property resulting from 
regulation and restrictions.

It is generally recognized that real property in a city, 
protected by restrictions, is worth more than unprotected 
property.

The basis of residence values is social and not economic. 
Business property is selected by the man from an economic 
standpoint. Residence property by the woman from a 
social standpoint.

Principles of City Land Values (Hurd) 77-78.
Restrictions, aid rather than restrict, free alienation of 

residenital property.



51
21 Illinois Law Review, 716.
As applied to the case at bar, it is obvious that the num­

ber of potential purchasers for residential property in a 
white zone or a negro zone, is much larger than the number 
of potential purchasers of the same kind of property in a 
mixed zone or in a zone which is open to all. The number 
of whites and the number of Negroes who prefer to live 
among their kind, far exceeds the number who prefer to 
isolate themselves in a zone open to all.

Appraisers, banks, lending institutions insist that, for 
maximum loans, the property upon which the loan to be 
made must have every prospect of being desirable property 
over a long period of time. They seek definite standards 
upon which to base their estimates of values.

“In seeking these standards they find that deed restric­
tions, city planning, and zoning are the fundamental
considerations in the evaluation of all types of property.” 

* # * *
“In the building and owning of a house, land is the 

first item of cost; environment is the final source of 
value.”

THE APPRAISAL JOURNAL, February, 1940.
A SOURCE OF PROPERTY VALUE.

It would seem that a law which guarantees a good en­
vironment to residential property is of substantial benefit 
to the property.

“Property owners today are really becoming zoning- 
minded. They realize that, while zoning limits their in­
dividual property rights, at the same time it places the 
same limits on their neighbors and, through strict en­
forcement, zoning actually increases and stabilizes the 
value of the properties over which it has control.”

THE APPRAISAL JOURNAL, supra.

If as a matter of fact, as we proposed to show in the Dis­
trict Court, the plaintiffs property is reasonably worth at



52
least 25% more zoned white residential than it would be 
worth if the area in which it is located is open to both races 
and therefore classed as a mixed area, the plaintiffs cannot 
support the claim that the zoning law takes their property. 
To the contrary the plaintiffs must be regarded as under­
taking to decrease the value of their property and all other 
residential property in Birmingham. To that extent they 
are taking property values others have accumulated over 
a period of years “without due process of law.”

It is an axiom that “the value of thy home dependeth 
upon thy neighbor.” This being true the exclusion of an 
undesirable class from a neighborhood is fulfillment of a 
high social duty. Certainly the Fourteenth Amendment is 
not to be construed in a way that will make it a road block 
to progress.

c.

While a citizen may not be deprived of an absolute right, 
he may be restricted in the exercise of a right that is not 
absolute, under the Constitution.

In the District Court it was emphasized, and the District 
Judge was greatly influenced, by the following statement 
in Buchanan v. Warley, supra:

“That there exists a serious and 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 its solu­
tion cannot be promoted by depriving citizens of their 
constitutional rights and privileges.”

We have no quarrel with that statement, if it is borne 
in mind that the constitutional right and privilege the 
court was dealing with and had in mind when that gen­
erality was announced, was THE CONSTITUTIONAL 
RIGHT TO SELL REAL ESTATE,-an absolute, uncon­
trollable constitutional right.



53
The court was not undertaking to deal with the use to 

which property might be devoted. It recognized in the 
opinion that the use of property may be controlled in the 
exercise of the police power in the public interest.

The District Judge seems to have been of the opinion 
that color or race can not be made the basis of restrictions 
on the right to occupy a particular piece of property for 
residential purposes. As has been pointed out, the restric­
tion is not on account of color, but on account of the injury 
suffered by society from a Negro living in a white district.

1. The State may prohibit intermarriage between mem­
bers of the two races, not because one party to the marriage 
is white and the other black, but because of the injury 
done society by such a union.

Alabama Constitution (1901) Sec. 102.
Title 14, Sec. 360, 361, Alabama Code (1940).
Plessy v. Ferguson, 163 U. S. 537.

2. The State may prohibit adulterous relations between 
Negroes and whites and prescribe more severe punishment 
for fornication between a white person and a Negro than 
when the offense is committed by two members of the same 
race without violating the Fourteenth Amendment.

Pace v. State, 69 Ala. 231, 44 Am. Rep. 513, affirmed 
106 U. S. 583.

3. The State may require white and negro children to 
i attend separate schools, and prohibit any child of one race

attending a school of the other race, not because one is 
white and the other black, but because of the harm to 
society from mixing children in school.

Alabama Constitution (1901) Sec. 256.
Plessy v. Ferguson, 163 U. S. 537.



54
State v. Board of School Commissioners, 226 Ala. 62, 

145 So. 575.

4. The State may require the separation of the two 
races on street cars and intra-state carriers.

West Chester Co. v. Miles, 55 Pa. St. 209.
Plessy v. Ferguson, supra. ________ _
Henderson v. U. S., 80 Fed. Supp. 32p

5. The State may separate the races in parks, play­
grounds, swimming pools, tennis courts and golf courses.

Boyer v. Garrett, MMS, U.S.D.C. Maryland. 
December 30th, 1949. Judge Chestnutt.

If the state can separate the whites and blacks in schools, 
on street cars and busses and in other public places, pro­
hibit their intermarriage and biological integration out­
side the marriage relation, solely because of the harmful 
effect of such conduct on society, what prevents the same 
state from requiring whites and blacks to live in separate, 
but equal, residential areas in Birmingham, solely because 
of the tremendously harmful effect on society of their living 
side by side?

If the owner of a piece of property may be prohibited 
from using it for a legitimate, desirable, business, because 
such use will injure the public and its exclusion is a part 
of the general plan for the development of the city as a 
whole, in the interest of all, the owner may be excluded 
from using it as a residence, if its use for that purpose by 
the owner will have the same injurious effect on the public, 
and the exclusion of that use by that owner is a part of the 
general plan for the development of the city as a whole in 
the interest of all.

The right of a citizen to use property for a residence is 
not to be held superior to the right of a citizen to use prop-



55
erty for highly desirable business purposes, educational 
purposes, or religious purposes.

If a municipality may protect residential property from 
blight, deterioration, and disorder, any use of property 
which results in blight, deterioration and disorder may be 
prohibited.

The desirability of a neighborhood as a place of resi­
dence may be more completely destroyed by a negro living 
in it (or by a white person living in it if, it is a negro 
neighborhood) than by the use of the same property for 
the operation of a knitting mill or a sausage factory.

We submit that if the city is empowered to preserve the 
desirability of a district as a place of residence, for whites 
or blacks, as the case may be, it is entitled to do all things 
necessary in that regard, so long as its action does not 
violate a liberty expressly and absolutely protected by the 
Constitution of the United States.

The Supreme Court of the United States has repeatedly 
pointed out that

“The privileges or immunities of citizens, protected by 
the Fourteenth Amendment against abridgment by state 
laws, are not those fundamental privileges and immuni­
ties inherent in state citizenship, but only those which 
owe their existence to the federal government, its na­
tional character, its Constitution, or its laws.”

Prudential Insurance Company of America v. Cheek, 
259 U. S. 530, 42 Sup. Ct. 516, 66 L. Ed. 1044.

The right to occupy property does not owe its existence 
to the federal government, its national character, its Con­
stitution or its laws. People were asserting and exercising 
the right of occupancy long before a federal government 
was dreamed of, its Constitution contemplated or its laws 
enacted.

It would, therefore, appear that when a state says in effect 
to its citizens; you may not use property in a district for a



56
home where your presence in that district is a menace to 
public peace and order, the comfort and convenience of 
the people in that district, as well as a distinct disadvantage 
to all of the people in the city,—it has not violated any 
federal right of any citizen of the United States.

Whether property is misused or not depends on the ef­
fect of its use on the general welfare.

A circus might be a nuisance in a residential section but 
not a nuisance on the outskirts of the city.

d.
The Birmingham zoning ordinances represent the ma­

ture judgment and opinion of the legislative branch of the 
City of Birmingham that they do not violate the Fourteenth 
Amendment nor do they conflict with Buchanan v. Warley, 
supra.

The Commission of the City of Birmingham, about 
eleven years after Buchanan v. Warley was decided, after 
years of study, investigation and consideration, reached the 
conclusion that a comprehensive, equitable, zoning law, 
would not conflict with Buchanan v. Warley or the Four­
teenth Amendment.

That conclusion and opinion is entitled to great respect 
in all the courts in the United States.

The men composing the legislative body that enacted 
the Birmingham zoning law, acted under oath, the same 
oath to support the Constitution of the United States that 
a Judge takes, before he can sit in judgment. It is not to 
be presumed that the members of the legislative body of 
Birmingham disregarded their oath to support the Con­
stitution of the United States or that they undertook to 
violate it.

Every Commission of the City of Birmingham since the 
adoption of the zoning law in 1926 has decided under its 
oath that the zoning law does not conflict with Buchanan v. 
Warley or violate the Fourteenth Amendment.



57
In arriving at such conclusion, each Commission has 

been guided by principles long established by the Supreme 
Court of the United States. Each Commission has refused 
to believe that the decision in Buchanan v. Warley is a bar 
to a comprehensive, equitable, zoning law, designed to 
avert injury to the public, that inevitably follows an in­
vasion of a white area by negroes.

e.

While age alone will not impart validity to an invalid 
statute, it is never the less true, that where a statute has for 
a long period of years been enforced by the courts of the 
state, without its constitutionality being challenged, 
THAT FACT MAY BE CONSIDERED AS A VIRTUAL 
RECOGNITION OF ITS CONSTITUTIONALITY.

Worthington v. District Court, 37 Nev. 212, 142 Pac. 
230, Ann. Cas. 1916 E, 1097.

Courts seldom entertain questions of the constitution­
ality of a statute so long and repeatedly recognized as valid 
in the adjudication of the most important relations and 
rights, and when the interpretation of the statute WOULD 
LEAD TO CONSEQUENCES MOST SERIOUS.

Elmore County v. Tallapoosa County, 221 Ala. 182; 128 
So. 158.

Kyle v. Abernathy, 46 Colo. 214; 102 Pac. 158.

For more than twenty years, the constitutionality of the 
Birmingham zoning law, establishing white and negro dis­
tricts, was never called in question. To now wipe out 
all the advantages that whites and negroes obtained over 
a period of years, from the enforcement of that law,—ad­
vantages they now enjoy,—would be taking from the great 
majority of white and negro citizens, property values,



58
earned and acquired by the sweat of their brow, “without 
due process of law.”

Tradition and habits of the community count for more 
than logic in determining the constitutionality of laws 
enacted for the public welfare under the police power.

Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 
(1910). See also Plessy v. Ferguson, 163 U. S. 437 
(1896).

The fact that a practice is of ancient standing in a State 
is a reason for holding it unaffected by the Fourteenth 
Amendment.

Jackman v. Rosenbaum Co., 260 U. S. 22 (1922) .

The amendment does not override public rights, existing 
in the form of servitudes or easements which are held by 
the courts of a State to be valid under its constitution and 
laws.

Eldridge v. Trezevant, 160 U. S. 452, 468 (1896) ; Vida- 
lia v. McNeely, 274 U. S. 676 (1927). See also St. 
Anthony Falls Water Power Co. v. Board of Water 
Commissioners, 168 U. S. 349 (1897) .

With respect to custom, Woodrow Wilson said:

“Custom, too, never ceases to build up practices legal 
in their character and yet wholly outside formal law, 
constructing even, in its action on Congresses and Parlia­
ments, great parts of great constitutions. It constantly 
maintains the great forces of precedent and opinion 
which daily work their will, under every form of gov­
ernment, upon both the contents and the administration 
of law. Custom is habit under another name; and habit 
in its growth, while it continually adjusts itself to the 
standard fixed in formal law, also slowly compels formal 
law to conform to its abiding influences. Habit may be 
said to be the great Law within which laws spring up.



59
Laws can extend but a very little way beyond its limits. 
They may help it to gradual extensions of its sphere and 
to slow modifications of its practices, but they cannot 
force it abruptly or disregard it at all with impunity.” 

“The State,” by Woodrow Wilson, Page 592.

Segregation, more especially residential segregation, has 
prevailed in Alabama since long before the Civil War. 
Residential segregation has prevailed in Birmingham since 
its incorporation after the Civil War.

Section 256 of the Alabama Constitution of 1901, requir­
ing separate schools for white and colored children, spe­
cifically provides:

“No children of either race shall be permitted to at­
tend the school of the other race.”
Every official in Alabama is sworn to uphold that pro­

vision of the Constitution of the State. As we have pointed 
out, the validity of these requirements have been sustained 
by the Supreme Court of the United States.

Starting with childhood and ending with old age, white 
and colored alike in Alabama, understand and believe and 
accept the doctrine that the two races must remain separate. 
The Birmingham Zoning Ordinance is but a translation of 
that basic rule affecting residential areas. The Commission 
of the City of Birmingham carefully weighed the public 
needs against private desires of a few individuals and then 
weighed the relative social values of residential segrega­
tion. What, at any particular time, is the paramount public 
need is necessarily, largely a matter of judgment, and while 
the judgment of a legislative body is entitled to a great 
respect in every court in the land, it is not final and con­
clusive. It may be strengthened and supported by evidence 
showing what the facts actually are.

In the May, 1949, issue of “Ebony,” one of the most 
popular Negro magazines, there is a denunciation of seg­
regation in the District of Columbia. It is there pointed



60
out on Page 18 that Negroes are segregated in Arlington 
Cemetery in two plots, Numbers 23 and 25, and that solely 
for economic reasons the proprietor of a Pet Cemetery will 
not allow a Negro to bury a dog in that cemetery—

“A few miles north of Washington is the Aspine Hill 
Pet Cemetery which pridefully calls itself The Coun­
try’s largest Pet Burial Place. To enter a Negro’s dog, 
the manager explained to Ebony, would greatly damage 
the ‘Cemetery’s excellent reputation’.”

Consequently the cemetery has refused burial to twelve 
Negro owned dogs in seven years solely on the ground of 
color of the owner.

The appellants are not seeking to vindicate the pro­
prietor’s idea. The incident is referred to solely for the pur­
pose of demonstrating that business proprietors in the na­
tional capital go much further in their demand for segre­
gation than the City of Birmingham has ever dreamed of 
going.

We respectfully submit that if these and other tremend­
ously significant facts had been introduced in evidence and 
considered by the Trial Court and a proper finding of fact 
made by the District Judge it could not be plausibly con­
tended that the Fourteenth Amendment to the Constitu­
tion of the United States should be construed in a way that 
would bring it into collision with the unbending will of the 
American People on the question of residential segregation.

PROPOSITION II

The Court erred in holding that social and economic 
data showing that the Birmingham zoning law does not 
violate the Fourteenth Amendment was inadmissible and 
immaterial.

Under this heading we will discuss assignments of error



61
one to thirty, inclusive, separately and severally, inasmuch 
as the argument in support of one relates to all.

The appellants introduced some evidence, and offered 
other evidence in the District Court, of the extraordinary 
conditions in Birmingham, and particularly evidence show­
ing:

(1) There is a clear and present danger of a race war 
and other forms of violence in Birmingham, and,

(2) There is a clear and present danger of an immediate 
decrease in residential property values in Birmingham of 
from twenty-five to thirty-three and one-third per cent, 
and,

(3) There is a clear and present danger that the City 
will be unable to render essential municipal services—if 
negroes cannot be excluded from white residential sections 
in Birmingham.

The District Judge ruled that these matters “factual and 
doctrinal” were not material to the issue of the constitu­
tionality of the zoning ordinances.

It is our position that evidence showing that we are 
literally sitting on a powder keg in Birmingham, with a 
slow burning fuse getting shorter every day, and that our 
zoning law is the most feasible way of preventing an explo­
sion, is not only relevant and material, but is of the very 
highest importance to a proper decision of this case.

The appellants and this court are entitled to a finding 
of fact by the trial court on these important issues. If the 
community in particular, and society as a whole, are to 
suffer irreparable injury and damage as a result of giving 
the right, the plaintiffs sought to protect, preference and 
priority over all other rights protected by the Constitution, 
we embark upon strange procedure.

Residential segregation is a social problem. Courts, 
scholars and others are in accord that satisfactory conclu­
sions on social problems cannot be reached solely through 
a process of deduction from abstract legal documents.



62
In an article entitled, “Segregating Residences of Ne­

groes” in Volume 2 of Selected Essays on Constitutional 
Law, Page 1175, 32 Michigan Law Review 721, Professor 
Arthur T. Martin of Ohio State University, and later Dean 
of the law department of that Institution, gave cogent rea­
sons for the admissibility of social and economic data in a 
case of this kind:

“Satisfactory conclusions on social problems cannot be 
reached solely through a process of deduction from ab­
stract legal doctrines.” Page 1193.

.V- .y ,
*«• -7T -TS*

“In considering the validity of these segregation de­
vices the courts have not ordinarily purported to take 
into account the social desirability of the end sought.” 
Page 1175.

Jfe -Sfe"A*

“In cases of Negro segregation it would seem that this 
controlling factor should be an appraisal of the social 
desirability of the device in question.” Pages 1175, 1176. 
Professor Martin points out in the article referred to that 

race prejudice is common to most white people of this 
country and that the presence of the Negro neighbor would 
limit the number of white persons who would be interested 
in the purchase of any particular owner’s property.

“This in turn would tend to diminish the market value 
of the property and so add the financial to the racial 
ground of objection.” Page 1179.

In commenting upon the inadequacy of traditional legal 
standards, Professor Martin said:

“The social advantage or inevitability of race dif­
fusion as against segregation has not been weighed. Tra­
ditional legal standards such as the due process clause of 
the Fourteenth Amendment, and the Rule Against Re­
straints on Alienation together with the usual supporting 
data are apparently all the material which a court uses 
to determine the validity of a segregation device. Legal



63
rules of this type do not furnish a definitive basis for the 
disposition of controversies.” Page 1175.

In speaking of residential segregation and its advantages, 
the Professor said:

“Through governmental control it would be possible 
to have a planned expansion of Negro areas with pro­
visions for sections in which better homes for Negroes 
could be constructed, and at the same time avoid the vio­
lent disturbances which result from unregulated attempts 
at expansion. As the problem is essentially urban, and its 
physical aspects vary from city to city, each municipal 
government could be permitted to enact the legislation 
best adapted to its peculiar needs. With this approach 
zoning ordinances seem to afford the most suitable means 
of adjusting the problem.” Page 1180.

*  *  *

“A  court’s estimate of the social propriety of residence 
segregation should be more than a guess; it should be a 
judgment reached through a study of the social facts in­
cident to these segregation problems.” Page 1194.

If residential segregation is a social problem, and “social 
forces laugh at laws,” then it is respectfully submitted that 
this case requires an appraisal of the desirability of the un­
discriminating residential segregation established by the 
Birmingham Zoning Law.

In speaking of the influence and importance of questions 
of fact in a case of this kind, we take the following from 
Harvard Law Review, Volume 38, beginning at Page 6, 
where it is said:

“Moreover, these underlying questions of facts, which 
condition the constitutionality of the legislation, are at 
times questions on which the layman feels justified in 
forming his own opinion and in declining to yield it to 
that of the Judge, at least when the Judge bases his de­
termination, not on evidence produced in the case before 
him, but on his general information the same foundation



64
upon which the layman builds his conclusion. As an ex­
ample, the layman may be quite ready to defer to the 
opinion of the court when the decision requires a defi­
nition of the legal significance of the phrase ‘ex post fac­
to law,’ but when the court decides that a law limiting 
the hours that people may work in bakeshops has no sub­
stantial relation to the promotion of the public health, 
he is inclined to doubt the finality of this finding, since 
he knows of no particular reason for supposing that the 
Judges are better able to decide such a question than 
other intelligent persons, unless their determination is 
based upon evidence produced before them in the usual 
way, carefully weighed and considered.”

In pointing out that the famous bank case, McCullough 
vs. Maryland, and the Legal Tender Cases turned on ques­
tions of fact, the author said:

“But the important point to be observed is that the 
decision turned on a question of fact, and on a question 
upon which a layman felt justified in forming his own 
opinion, and with respect to which he could find noth­
ing to make him believe that the training and experience 
of the Supreme Court Justices qualified them to form an 
exceptionally trustworthy opinion in the absence of evi­
dence bearing directly upon the point in dispute.”

The point is further illustrated by this reference to the 
Massachusetts vaccination statute—

“The validity of the Massachusetts vaccination statute 
turned essentially on the question whether such a re­
quirement was an arbitrary interference with personal 
liberty and therefore a violation of the due process clause 
of the Constitution; and, as in the bakeshop case, this 
question could only be resolved by an intelligent consid­
eration of the efficiency of vaccination.”

In this connection it is interesting to note that in the 
Massachusetts vaccination case, Jacobson vs. Massachusetts, 
supra, the Supreme Court of the United States said:



65
“While we do not decide, and cannot decide, that vac­

cination is a preventive of smallpox, we take judicial no­
tice of the fact that this is the common belief of the peo­
ple of the State, and with this fact as a foundation we 
hold that the Statute in question is a health law, enacted 
in a reasonable and proper exercise of the police power.”

While this Court will not decide and cannot decide that 
residential segregation in Birmingham will prevent all of 
the evils that flow from the intense feeling of race hostility 
in Birmingham, it should take judicial notice of the fact 
that this is the common belief of the people of the state 
and with this fact as a foundation the Court should hold 
that the zoning ordinance is a safety regulation enacted in a 
reasonable and proper exercise of the police power.

In Muller vs. The State of Oregon, 208 U. S. 412, 420, 
28 Sup. Ct. S24-326, 52 L.ed. 551, the Court took notice 
of:

“A widespread belief that woman’s physical structure, 
and the functions she performed in consequences thereof,” 
justify special legislation restricting the conditions under 
which she should be permitted to work, and the Court 
ruled:

“When a question of fact is debated and debatable, 
and the extent to which a special constitutional limita­
tion goes is affected by the truth in respect to that fact, 
a widespread and long continued belief concerning it 
is worthy of consideration.”

Mr. Justice Brandeis stated his position on this subject 
as follows:

“Whether a law enacted in the exercise of the police 
power is justly subject to the charge of being unreason­
able or arbitrary, can ordinarily be determined only by 
a consideration of the contemporary conditions, social,



66
industrial and political of the community to be affected 
thereby. Resort to such facts is necessary, among other 
things, in order to appreciate the evils sought to be 
remedied and the possible effects of the remedy pro­
posed.” Dissenting in Traux v. Corrigan, 257 U. S. 312, 
356, 357, 42 Sup. Ct. 124, 138 (1921)' L. Ed.
There can be no doubt about the problems confronting 

the governing body of a municipality of 400,000 people, 
fifty-five per cent white and forty-five per cent black, being 
different from the problem that confronts the governing 
body of a municipality of 400,000 people all of whom are 
white or all of whom are black. There can be no doubt 
about the problem confronting the governing body of a 
city which has enforced residential segregation for more 
than 20 years under a zoning law universally accepted dur­
ing that time, being different from the problem of a city 
which has never had residential zoning. And how is the 
court to appreciate the evils sought to be remedied and the 
effects of the remedy proposed unless it has before it the 
experience of mankind world wide as well as evidence of 
local conditions. The prohibition amendment demonstrat­
ed that the will of the people is the supreme law.

b.
The problem of constitutional interpretation is more 

than a matter of rule-of-thumb. Gompers v. U. S., 233 U. S. 
604-610; 34 Sup. Ct. 693, 695, 58 L. ed. 115.

If it is true that “no citizen has any right superior to the 
common welfare” and that “every forward step in the prog­
ress of the race is marked by an interference with individual 
liberties,” Michigan Law Review, Vol. 24, Page 17—then 
this case cannot be properly decided without recourse to 
social and economic facts, experience and statistics which 
show that the Birmingham Zoning Ordinance is not in­
imical to the property right asserted by the plaintiffs, but 
bears a reasonable relation to the general welfare and is an 
imperative in Birmingham.



67
The peculiar and extraordinary conditions which pre­

vail in Birmingham and in other cities, and which do not 
prevail in rural areas, largely lie outside the range of ju­
dicial notice. For that reason, evidence of those conditions 
is admissible. The Supreme Court of the United States 
has said:

“We held that before the question of constitutional 
law, both novel and of far-reaching importance, were 
passed upon by this court, supporting facts essential to 
their decision should be definitely found by the lower 
courts upon adequate evidence.”

Bordens Company vs. Baldwin, 293 U. S. 194.

The court declined to pass upon the ultimate question 
of the constitutionality of the statute because of the absence 
of a finding of fact by the trial court upon important ques­
tions.

In United States vs. Caroline Products Company, 304 U. 
S. 144-153, the court announced a ruling in the following 
language:

“Where the existence of a rational basis for legislation 
whose constitutionality is attacked depends upon facts 
beyond the sphere of judicial notice, such facts may prop­
erly be made the subject of the judicial inquiry Borden 
Farm Products Company vs. Baldwin, 293 U. S. 194, and 
the constitutionality of a statute predicated upon the 
existence of a particular set of facts may be challenged 
by showing to the court that those facts have ceased to 
exist. Chastleton Corp. vs. Sinclair, 246 U. S. 543.”

If the constitutionality of a statute predicated upon the 
existence of a particular state of facts may be challenged by 
showing to the court that those facts have ceased to exist, 
it would seem that the same statute might be supported by 
showing to the court that those facts have not ceased to 
exist.



68
Justice Butler in his concurring opinion in United States 

vs. Caroline Products Company, supra, pointed out that 
prior decisions of the Supreme Court of the United States 
supported the proposition that declarations of an Act that 
described a product as injurious to public health might be 
disapproved by evidence tending to show that such declara­
tion was without any substantial foundation.

In this case the District Court had before it a statement 
by the Commission of the City of Birmingham to the effect 
that the Commission found that breaches of the peace, riots, 
destruction of property and life will follow attempts by 
members of one race to establish residences in areas hereto­
fore regarded as set apart for the residences of members of 
the other race. This is contained in Paragraph (c) of Ordi­
nance 709-F. The District Court also had before it a fur­
ther statement and finding by the Commission to the effect 
that neither the City of Birmingham nor any other law en­
forcement agency is able to prevent those disasterous and 
catastrophic consequences. That information is contained 
in Paragraph (d) of Ordinance 709-F. The District Court 
closed its eyes and ears to this most important and potent 
information.

The duty of a trial judge to make a study of the available 
social and economic data hearing on the question before 
him is forcibly stated in 79 Pa. Law Review at Page 665 
in the following language:

“A Judge needs a high order of legal training but he 
should also have sympathetic appreciation of the eco­
nomic and social life of today and its bearing on the prob­
lem of government.

-JV”

. . even John Marshall, as a lawyer, had his superiors. 
His supremacy lay not in his knowledge of law, but in 
his recognition of and penetrating insight into the prob­
lems that faced a new and growing country.

TV- -R~

“The often judicial consideration of modern social



69
and economic problems has remained either rational or 
historical.

*  *  *

“Many, if not most, of our modern Constitutional 
questions cannot properly be dealt with in this manner.

•itr .St. •H-"K- TP w

“Courts continued to ignore newly arisen social needs. 
They applied complacently 18th Century conceptions of 
the liberty of the individual and of the sacredness of 
private property.

*  *  *

“Where statutes giving expression to the new social 
spirit were clearly constitutional, judges, imbued with 
the relentless spirit of individualism, often construed 
them away.

# # #
“The Judge can no longer confine his researches to 

the law library. In addition he must make a study of the 
available social and economic data bearing on his par­
ticular question.

-M. J£.-ft- -JF -Jp

“In the opinion of one acute observer, ‘courts are less 
and less competent to formulate rules for new relations 
which require regulation.'

* * *
“General propositions should not decide concrete 

cases. Certainly decisions involving social and economic 
legislation should turn, as Mr. Justice Holmes has said, 
on ‘a judgment or intuition more subtle than any articu­
late major premise.”

* * *
The nature of this case, in our opinion, requires a most 

careful consideration of the factual picture, and a clear and 
definite finding of fact with respect to the presence of a 
clear and present danger of a calamity.

c.
No form of segregation per se is prohibited by the Con­

stitution of the United States.



Residential segregation is now recognized as primarily 
a social question; secondarily, an economic question and 
thirdly a political or constitutional question.

NAACP lawyers apparently recognize that segregation 
is not prohibited by the Constitution of the United States.

In an address by Milton R. Knovitz, in discussing the 
Irene Morgan case, he is quoted as follows:

“When the NAACP lawyers were preparing the case 
on appeal to the Supreme Court, they very carefully lim­
ited the attack on the statute to its interstate commerce 
aspects. NO ARGUMENT WAS MADE THAT THE 
JIM CROW ACT VIOLATED ANY PROVISION OF 
THE BILL OF RIGHTS. This was done because the 
state of the law on the Bill of Rights was such that we 
thought it would be too great a risk to ask the court to 
decide that Jim Crow violates the constitutional rights 
of Negroes.”
Segregation by law is not of southern origin. It origi­

nated in Pennsylvania and spread to abolitionist Massa­
chusetts and from there to other northern and eastern states. 
Separation of races in Boston as early as 1849 was noted in 
Roberts v. City of Boston, 5 Cush. 198. Notice was taken, 
Page 241, of the establishment by Congress in 1862 of ex­
clusive schools for the colored race in the District of Co­
lumbia. In 1883 the New York Court in the case of People 
vs. Gallagher, 45 Amer. Report 232, sustained segregated 
schools of equal quality in Brooklyn under the authority 
of its Board of Education acting under state law. The rea­
son for segregation and the attitude of the people as it then 
existed could be no more clearly stated than was done by 
this opinion of the New York Court, Pages 237-238 and 
240:

“In the nature of things there must be many social 
distinctions and privileges remaining unregulated by law 
and left within the control of the individual citizens, as 
being beyond the reach of the legislative functions of gov-



71
ernment to organize or control. The attempt to enforce 
social intimacy and intercourse between the races, by 
legal enactments, would probably tend only to embitter 
the prejudices, if any such there are, which exist between 
them, and produce an evil instead of a good result. Rob­
erts vs. City of Boston, 5 Cush. 198.

“A natural distinction exists between these races 
which was not created, neither can it be abrogated by 
law, and legislation which recognizes this distinction and 
provides for the peculiar wants or conditions of the par- 
tcular race can in no just sense be called a discrimination 
against such race or an abridgement of its civil rights.
. . . Recent movements on the part of the colored people 
of the south, through their most, intelligent leaders, to 
secure Federal sanction to the separation of the two races, 
so far as the same is compatible with their joint occupa­
tion of the same geographical territory, afford strong evi­
dence of the wishes and opinions of that people as to the 
new methods which in their judgments will conduce 
most beneficially to their welfare and improvement.”

In Cummings vs. Richmond County Board of Education, 
175 U. S. 528, (1899) the opinion by Mr. Justice Harlan, 
who dissented in the Plessy case, held that race segregation 
in public schools under state statute was not prohibited by 
the Fourteenth Amendment. Going Lum vs. Rice, 275 U. 
S. 78 (1927), sustained as lawful refusal to admit a Chinese 
to white public school, under state statute requiring the 
separate schools for white and colored students. Speaking 
of the state court decision holding the state statute lawful, 
the opinion of Mr. Chief Justice Taft said, Page 86:

“The decision is within the direction of the state in 
regulating its public schools and does not conflict with 
the Fourteenth Amendment.”

State courts have held that separation of races in public 
schools is not forbidden by the Constitution. (People vs. 
School Board of Borough of Queens, 161 N. Y. 598, 56 N. 
E. 81 (1900) ; State ex rel. Weaver vs. Board of Trustees



72
of Ohio State University, 126 Ohio St. 290, 185 N. E. 196 
(1933).

A leading recent school segregation case decided by the 
Supreme Court is Missouri ex rel. Gaines vs. Canada, 305 
U. S. 337 (1937) . The question there arose over refusal of 
Missouri University to admit Gaines, a Negro, to its law 
school, and mandamus was sought to compel the University 
to admit him. Denial of admission to the University was 
held a violation of rights to equal school opportunity where 
no separate school was available for Negroes.

The opinion by Mr. Justice Hughes notes recognition 
by state court of the obligation to provide educational op­
portunity for Negroes substantially equal to those provided 
whites, stating, Page 344:

“The state has sought to fulfill that obligation by fur­
nishing equal facilities in separate schools, a method the 
validity of which has been sustained by our decisions.”

To make it clear that segregation itself is not unlawful, 
the opinion later said, Page 349:

“The admissibility of laws separating the races in the 
enjoyment of privileges afforded by the State rests wholly 
upon the equality of the privileges which the laws give to 
the separated groups within the State.”

The Gaines case is important in plainly stating the po­
sition of the Supreme Court, adhered to over many years, 
to the effect that separation of races in various activities is 
lawful and does not violate constitutional rights, provided 
equality of treatment is afforded both races. Sipuel vs. 
Board of Regents, 332 U. S. 631 (1948), was decided per 
curiam upon authority of the Gaines case.

Other cases in numbers too great to permit mention or 
discussion deal with segregation in many affairs of life, 
which have little or no application here.

The one outstanding constitutional fact established un­
der the above-cited authorities is that segregation is not for­
bidden. It is always inequality of treatment which leads



73
to invalidation of state statute, carrier rule, and other au­
thority requiring separation of races.

PROPOSITION III

Residential segregation is socially desirable.
# # #

Racial residential segregation as provided by the Bir­
mingham Ordinance is not only socially desirable, but is 
essential to the preservation of the existing social institu- 
tians—the home, the community and the racial integrity 
which the South, and, in fact, the overwhelming portion of 
the nation, desires to maintain. The basic reasons for this 
are therefore presented to the court.

The Home and The Community

“In addition to all that has been said in support of the 
constitutionality of residential zoning as part of a com­
prehensive plan, we think it may be safely and sensibly 
said that justification for residential zoning may, in the 
last analysis, be rested upon the protection of the civic 
and social values of the American Home.”

Cooley’s Constitutional Limitations, Vol. II, Page
1317.

The home and the community are essentially, and by 
their nature, social institutions. It is inconceivable that 
any reasonable action taken by states and municipalities to 
protect and maintain these institutions can be construed to 
be in violation of the Constitution.

“The main consideration in the individual selection 
of a residence location is the desire to live among one’s 
friends or among those whom one desires to have for 
friends; for which reason there will be as many residence 
neighborhoods in a city as there are social strata. In 
securing a home in a good residence section a man se-



74
cures safe, healthy and attractive conditions for his fam­
ily to live under, and, in smaller cities, desirable social 
life, these social considerations explaining the strong 
pressure in all cities towards the best residence sections. 
The contrast should be noted that BUSINESS PROP­
ERTY IS SELECTED BY THE MAN FROM AN ECO­
NOMIC STANDPOINT, AND RESIDENCE PROP­
ERTY BY THE WOMAN FROM A SOCIAL STAND­
POINT.”

Principles of City Land Values, (Hurd), Pages 77-78.
The prevailing attitude of the overwhelming portion of 

the non-negro population toward social equality of the 
negro, in the sense of intimate social and community re­
lations, has already been called to the attention of the court. 
There can be no question about there being a widespread 
belief on the part of white people in this country that Ne­
groes are undesirable neighbors. Robert Weaver, writing 
in the Negro Ghetto, said:

“Colored people are opposed as neighbors in most de­
sirable and most undesirable sections of American cities. 
This atttiude in middle-class areas is of long standing.”

The irreparable, or potentially irreparable, social dam­
age which may be occasioned by the lack of equitable and 
non-discriminatory segregation is well stated in the follow­
ing quotation from Charles Abrams (The Nation, Aug. 2, 
1947, page 123) :

“The social statute of a neighborhood is an item to be 
reckoned with by any homeowner, tenant or investor. 
Where one lives is usually indicative of one’s station in 
life and has an effect on friends, potential friends and 
business associates. The character of the neighborhood 
may be especially important to one’s daughter during 
her marriageable years. Unhappily, social status depends 
partly on race and color. Sometimes a single grundy in a 
neighborhood may inspire organized opposition; some­
times the intrusion of a single family of ‘unwelcome an-



75
cestry’ may precipitate an exodus-first by those best able 
to afford it, then by others. The section gets to be known 
as the undesirable part of town, houses fall into disrepair, 
and the neighborhood turns into a hand-me-down.”

There is also a widespread belief of the inevitable de­
preciation of property values in residential sections when 
Negroes are allowed to invade white territory.

In The Illinois Law Review, Volume 21, Page 704, the 
situation in Northern cities is stated as follows:

“The constant flow of the colored man into the middle 
and northern states has now made the Negro problem na­
tional in its scope and importance and is constantly creat­
ing neighborhood and governmental problems which are 
becoming more and more difficult to solve.”

In discussing those problems and their immediate bear­
ing upon property values in residential districts, it is 
said:

“Not the least of these problems is that which is pre­
sented by the migration of the colored man into what 
was formerly white and often aristocratic, residential dis­
tricts, the consequence of which usually, and almost in­
evitably is, not merely a lessening of property values but 
of constant irritation and ultimate moving out of the 
original residents who were not willing to have colored 
neighbors and above all to send their children to the 
neighborhood school where the children of all classes 
and nationalities mingled together.”

In the same article at Page 716, it is pointed out that 
where there is no residential segregation the fear of Negro 
invasion materially interferes with the profitable sale of 
homes.

It is emphasized that this is not exclusively a local situa­
tion. The New York Commission on the Condition of the 
colored population reported that “There is no section of



76
New York that residential segregation is not practiced 
against negroes” (page 74) . And the Pennsylvania Com­
mission on the condition of the urban population reported 
(page 131) that “Residential segregation is an observable 

fact. It did not happen by accident nor is its existence 
maintained by mere chance.”

The Inter-racial Commission of the State of Minnesota 
is reported in the July 27th, 1947 issue of the New York 
Times as finding that sixty per cent of the people were flatly 
opposed to Negroes being allowed to move into any vacancy 
that they could afford to occupy, and ten per cent was un­
decided. By areas, city people, town people and farm peo­
ple were opposed respectively in the proposition of sixty- 
four per cent, sixty per cent and sixty-one per cent.

Leslie Vellie, writing in Colliers Weekly, November 23, 
1946, on the situation in Detroit said:

“On Detroit’s Northwest side there is a concrete wall 
a foot thick, six feet high and about one-half a mile long. 
A real estate developer put it up in 1941 to shut out from 
his white customers the sight of Negro families nearby. 
The United States Government Federal Housing Ad­
ministration wouldn’t insure white owner mortagages 
until the wall was put up.”

The “Negro Ghetto,” Pages 167 to 170 points out that 
“Residential segregation has been given federal sanc­
tion in San Francisco, Richmond, Sacramento and small­
er places in California and in Vancouver, Bremerton, 
Fort Washington, Renton and Tacoma.”

Rayford W. Logan (Negro), writing in “What The Ne­
gro Wants,” Page 7, says:

“Today, most white people, North as well as South, do 
not accept the Negro as an equal.”



77
b.

Maintenance of Racial Integrity

One of the most important and useful purposes of the 
Birmingham Ordinances is the socially desirable result of 
deterring amalgamation. That the intermarriage and con­
sequent blending of some races, or of related groups within 
certain large racial categories, is not objectionable is gener­
ally accepted. But the amalgamation of such races as the 
Germanic and Anglo-Saxon on the one hand and the Negro 
race on the other is decidedly and demonstrably unde­
sirable. It appears obvious, however, that an increasing 
number of negro leaders are, avowedly or unavowedly, 
working toward this end, and they hope to help achieve this 
goal partly by breaking down residential segregation.

Professor G. A. Borgese of the University of Chicago 
(now Secretary-General of The One World Organization) 
in the Negro Digest of December, 1944, Page 31, states the 
Negroes’ ultimate goal, as follows:

. . any step forward in the field of political and social 
equality, however desirable and imperative, is merely a 
palliative as compared with the final remedy.

# # *
. .  All will be done only when the bedrooms open 

and the two bloods mix freely in many marriages, free 
from blame and bane.

 ̂ ^
“. . .  I  would believe in science as the miracle-maker. 

If science is trying hard, and hopefully, to contrive an 
artifical heart, I  would be at a loss to understand why it 
should be overbearing or nonsensical to exact from 
science the lesser miracle of an artificial skin. There 
should be some means—by innoculation or rays, or other 
nondescript process-to discolor the Negro.

* * *
“. . . a proposition of this kind should be the leading



78
thought of humanitarianism and science in their next 
phase of growth.

* # #
“Mixed marriages would he insured against racial 

nemesis by the knowledge that the treatment that was 
inexpensive and successful for the parent will be no less 
so for the progeny, with the other and less definite differ­
ential characteristics of the race merging by-and-by much 
more easily in the multiple miscegenation of the border 
zones.

•Jr

“• ■■ The color line should blur almost past recognition 
in the course of the very next generations.”

The sentiments of Professor Borgese are the sentiments 
of W. E. B. DuBois and the National Association for the 
Advancement of Colored People. DuBois says:

"What does one mean by a demand for ‘social 
equality?’

“The phrase is unhappy because of the vague mean­
ing of both ‘social’ and ‘equality.’ Yet it is in too com­
mon use to be disregarded, and its stands especially for an 
attitude toward the Negro. ‘Social’ is used to refer not 
only to the intimate contacts of the family group and of 
personal companions, but also and increasingly to the 
whole vast complex of human relationships through 
which we carry out our cultural patterns.

“We may list the activities called ‘social,’ roughly as 
follows:

“A. Private social intercourse (marriage, friendships, 
home entertainment).

“B. Public services (residence areas, travel recreation 
and information, hotels and restaurants).

“C. Social uplift (education, religion, science and 
art) .

“Here are three categories of social activities calling 
for three interpretations of equality. In the matter of 
purely personal contacts like marriage, intimate friend­
ships and sociable gatherings, ‘equality’ means the right 
to select one’s own mates and close companions. The



79
basis of choice may be cultural taste or vagrant whim, 
but it is an unquestionable right so long as my free choice 
does not deny equal freedom on the part of others. No 
one can for a moment question the preference of a white 
man to marry a white woman or invite only white friends 
to dinner. But by the same token if a white Desdemona 
prefers a black Othello; or if Theodore Roosevelt in­
cludes among his dinner guests Booker T. Washington, 
their right also is undeniable and its restrictions by law 
or custom an inadmissible infringement of civil rights.”

W. E. Burghardt DuBois (colored), Professor Socio­
logy Atlanta University, on “What the Negro Wants,” 
Pages 65-66.

“What the Negro Wants,” University North Carolina 
Press (1944) composed of articles contributed by such Ne­
gro leaders as Mary Bethune, Sterling A. Brown, W. E. B. 
DuBois, Gordon Blaine Hancock, Leslie Pinckey Hill, 
Langston Hughes, Rayford W. Logan, Frederick Douglas 
Patterson, A. Philip Randolph, George S. Schupler, Willard
S. Townsend, Charles H. Wesley, Doxey A. Wilkerson, and 
Roy Wilkins, leaves no doubt in any rational mind that 
Professor Borgese was right when he said that the negroes 
ultimate aim is to open the bedrooms and let

“the two bloods mix freely in many marriages, free 
from bane and blame.”

The recent marriage of Ruth Weyland, the white worn- j 
an lawyer, who is Assistant General Counsel for the Nation- 
al Labor Relations Board to Leslie S. Perry, negro lobbyist 
for the National Association for the Advancement of Col­
ored People, and the marriage of negroes like Paul Robe­
son’s boy and Walter White, to white women, and the re­
action of the negro press to these incidents, demonstrates 
that Professor Borgese knew what he was talking about 
when he declared that the negro’s ultimate was the mixture 
of the two bloods in many marriages and lighter skin for j 
the negro.



80

V
A

It is understandable why the negro would like to blot 
out the color line, but it is completely beyond our compre­
hension for one to expect that any American court will look 
with favor on such a program or will hold that the Constitu­
tion of the United States in effect prohibits protection of 
racial integrity.

If it be concluded that a municipality has a right to pre­
serve racial integrity and to deter amalgamation, then it 
logically follows that it has the authority to adopt legislation 
that is calculated to work such results.

Oliver C. Cox in an article in The American Journal of 
Sociology, Volume 50, Page 351, points out that

“Negroes, in America, at least, are working toward the 
end that Negroes as such shall become nonexistent.

“In short, they want to be known unqualifiedly as 
American Citizens, which desire, in our capitalistic so­
ciety, means assimilation and amalgamation.’’
If anything is certain in this uncertain world, it is cer­

tain that the Negroes’ ultimate goal is assimiliation and 
amalgamation which prompts the writer to reproduce some 
pertinent questions by publisher W. T. Couch in the pub­
lisher’s introduction to “What The Negro Wants:”

“What problem would be solved if the white South 
dropped all barriers and accepted amalgamation?

“Would anything be gained if overnight the whole 
population could be made one color?”
A desire to preserve the white race is innate in the vast 

majority of white people. The Negroes’ goal is to destroy 
it. The Negro is ashamed of his color. He is ashamed of 
his race. He would masquerade as “colored” although 
Indians, Chinese and other colored people do not appre­
ciate the Negroes eagerness to occupy the “colored” field.

The average white man (and many negroes) sincerely 
believe that the white race is superior to the black race. 
Whether that belief is rational or not is beside the ques-

I
II



81
tion. Whether it is cruel, chirstian, or charitable makes no \ 
difference. The white man believes that. Courts and Con­
gress and the President must deal with people as they are, 
not as some one would have them be.

“This (inferior) status has been fixed by custom 
which has become as strong as statutory law. The funda­
mental reason for this situation is the belief in the in­
feriority of the Negro, a concept based upon the master- 
slave psychology and past poor white-negro relationships. 
The presence of the Negro raises objection whenever he 
comes as an equal. As long as he is an inferior—-a porter, 
a nurse, a sexton, a servant he is tolerated. Whenever 
recognition is given to the status of inferiority, there is 
rarely any racial conflict. This belief is not peculiarly 
southern, for although Northern sympathy could be 
aroused during slavery to a fairer consideration of the 
Negro by descriptions of Negro treatment in the south, 
there is no longer any rigidly marked sectional difference. 
Custom limits the Negro in the north just as legislation 
and custom circumscribe him in the south. An effective 
commentary in the Independent in 1920 upon this situa­
tion stated: ‘The omniscience of the South on the race 
question is only equalled by the mescience of the North’.” 

Charles H. Wesley (colored), Head of the Department 
of History at Howard University, in “What the Negro 
Wants,” Page 97.
The Negro gives the white man good cause for such be­

lief. The plethora of advertisements in the negro press 
of lotions and concoctions it is claimed will lighten the 
negroes’ skin, evidence his desire to change his color.

We find no such efforts on the part of the members of 
any other race.

A bastard is looked on with disfavor by God and man. 
As far back as Deutronomy, Chpater 23, Verse 2, it was 
declared:

“A bastard shall not enter into the congregation of the 
Lord; even to his tenth generation shall he not enter into 
the congregation of the Lord.”



82
In the New Testament the Apostle Paul in writing to the 

Hebrews, Chapter 12, Verses 6 and 8, says:
“For whom the Lord loveth he chasteneth, and scourgeth 

every son whom he receiveth.”
“But if ye be without chastisement, whereof all are par­

takers, then are ye bastards, and not sons.”
The common law disabilities of a bastard are well known. 

In Alabama now, a bastard can only inherit from his mo­
ther, and in default of issue, his mother and her kindred 
only inherit from him.

Title 16, Sec. 7, Alabama Code (1940) .
Title 27, Sec. 11, Alabama Code (1940) .

Miscegenation is a crime in Alabama, and one convicted 
of this crime is disqualified from registering, voting and 
holding office.

Ala. Constitution, Sec. 182.
Ala. Constitution, Sec. 102.
Story vs. State, 178 Ala. 98.
Title 14, Sec. 360 Ala. Code (1940).

Certainly any increase in that class of citizens should be 
discouraged.

Johan Gregor Mendel, the immortal biologist, discovered 
the principle of inherited and acquired characteristics. He 
studied the reproductive cells, the germ cells which are now 
called “gametes” which contain the “chromosomes” in 
which the inherited characteristics are lodged.

Mr. William W. Cook, the noted legal authority and 
author of “American Institutions and their Preservation,” 
sums up the significance of Mendel’s discovery as follows:

“The fundamental mental and moral nature of the 
child is the same as that of its ancestors and will be the 
same for its posterity. . . . This is so whether he be a 
Sicilian or the President of the Uinted States.”



83
In commenting on the overwhelming importance of 

heridity, Mr. Cook further says:

“On the other hand modern studies in genetics are 
emphasizing the immense, the overwhelming importance 
of heredity. . . . Belief in the omnipotence of environ­
ment for the evolution of species has steadily waned in 
recent years. . . . The old view (which is now the Com­
munistic view) that men are chiefly the product of en­
vironment and training is completely reversed by recent 
studies of heredity. The modifications which may be 
produced by environment and education are small and 
temporary as compared with those which are determined 
by heredity. . . . There is no evidence that the effects of 
good environment or good training ever change the germ­
inal constitution.”

This may explain the negroes inability to make progress 
in the social science or in the science of government. If left 
to himself he reverts to savagery.

In speaking of the southern and eastern European, Mr. 
Cook said:

“It is idle to claim that the American environment 
(schools, habits, customs, etc.) will change their inherit­
able natures. They will hurrah for the flag and then 
combine in a bloc for political power to use in their own 
behalf and to displace the old Americans.”
What Mr. Cook says of southern and eastern Europeans 

is equally true of the Negro.

Sir Arthur James Balfour writes:

“I at least find it quite impossible to believe that any 
attempt to provide widely different races with an identi­
cal environment, political, religious, educational, what 
you will, can ever make them alike. They have been dif­
ferent and unequal since history began; different and 
unequal they are destined to remain through future pe­
riods of comparable duration.’



84
Mr. Cook takes cognizance of those who scorn the laws 

of heredity in the following languages:

“With the development of democratic opinions in 
the eighteenth century it became fashionable to disparage 
the weight of those hereditary influences to which the 
ancients attached so much importance. The equality of 
man was proclaimed, the differences between race and 
race attenuated or ignored. Modern professors of eu­
genics, he says, “ask us to face the fact, which is now plain 
to all, that different races are differently endowed by na­
ture, some being relatively high and others relatively 
low in the scale of civilization, and that within every 
race men and women differ from one another in natural 
inherited ability, and that no matter what education is 
supplied, these nautral differences will persist. . . .

Mr. Cook, after reading 1,307 books and declaring that, 
“America exists to assert and demonstrate whether or not 
a vast people in a vast country of every climate and every 
occupation is capable of governing itself by democracy,” 
says with startling bluntness:

“Mendelism may yet save America.”
Ambassador Walter Bedell Smith in “My Three Years 

in Moscow,” (pages 285, 286), points out that the Mendel 
theory of inherited characteristics seriously conflicts with 
the theory that man is a creature of environment and for 
that reason the Kremlin ruled that Mendel’s scientific truth 
is no longer truth.

“Adherence to this rigid theory accounts for the now 
famous biological controversy that raged last year in the 
Soviet Union. No matter how many Soviet biologists 
accepted as proven the fundamental truth of the Men­
delism theory of inherited characteristics, the Kremlin 
has ruled that it cannot be true.”

The compelling necessity for disowning the truth is made 
clear by our Ambassador:



85
“If, contrary to the claim of the Soviet biologist Ly­

senko, man cannot inherit acquired characteristics then 
one of the fundamental props of Soviet ideology fails to 
the ground. If the Soviet State, by environment and out­
side pressure cannot cause fundamental changes in 
man’s character—in other words, in human nature—the 
future of the whole Soviet System is questionable.”

It will be interesting to see whether or not American 
politicians and American courts will follow “the party j j 
line” and join the Soviet State in claiming that environ- U 
ment and outside pressure can cause fundamental changes \ 
in man’s character or whether they will follow the line of \ 
scientific truth. i

If the heritable qualities of the negro do not change—and 
science says they do not—then the preservation of the racial 
purity by white people is one of the nation’s first concerns.

The negro can never preserve constitutional government, 
his racial constitution will not allow him to do so. “His 
chromosomes are not of the right kind,” says Mr. Cook at 
page 578.

“If science is right then the vociferous are wrong when 
they talk about ‘diverse contributing cultures and com­
posite civilization.’ The ‘melting pot’ is a witches’ caul­
dron, brewing all sorts of mixtures. It is no answer to 
cry ‘race prejudice.’ It is race preservation and not race 
prejudice. It involves the preservation of American in­
stitutions, the future of the American people.”

While a few states outside the South do not have mis- 
cegnation laws and laws against intermarriage, biological 
integration is frowned on there as severely as in the South. 
Professor Rayford Logan (Colored) of Howard Univer­
sity, concedes:

“On no aspect of the race problem are most white 
Americans, North as well as South, so adamant as they 
are on their opposition to intermarriage.” Page 28.



86
The author refers to the views of Mrs. Roosevelt and to 

the opinion of some biologists and anthropologists that mix­
ed marriages do not necessarily result in an inferior off­
spring, and concludes:

“Most white Americans remain nontheless opposed to 
intermarriage and many of them to the abolition of pub­
lic segregation as a possible first step toward it.” Page 28.

Cohn expresses the idea this way:

“The white visitor to New York from the Delta con­
cludes that essentially the same discrimination that run 
against the Negro in the Delta run against him in New 
York. And he wonders how much wider and deeper these 
discriminations woud be if the racial percentages of the 
two areas were reversed. What would the white man’s 
attitude and conduct towards the Negro in New York 
be if 70 per cent of the population were Negro?”

“Where I was Born and Raised,” (1948), By David L. 
Cohn, Page 156.

Professor Dowd points out that like the law of the Medes 
and Persians, the attitude of the Caucasian toward race 
intermixture with the Negro does not change.

“The attitude of the Caucasian toward intermixture 
with the Negro has not changed within the historic pe­
riod. As far back as 700 B. C. the fair widowed Queen 
Dido of Carthage committed sucide rather than comply 
with the unnatural and selfish importunities of her sub­
jects, to marry Larbus, the swarthy monach of Mauritania 
in Africa.

-ft- "T?

Professor Henry Pratt Fairchild, Professor Emeritus of 
Sociology, New York University, in his book on “Race and 
Nationality,” says that amalgamation is almost automatic 
when two or more racial groups are brought into juxtapo­
sition.



87
“It (amalgamation) is a process that takes place almost 

automatically when two or more racial groups are 
brought into juxtaposition. Obviously, this does not nec­
essarily involve the formal institution of marriage—the 
process is purely biological and takes place whenever 
streams of germ plasm are combined. Nor does it neces­
sarily involve any profound fellow feeling on the part of 
the parties concerned. It was noted long ago that the 
relations between the soldiers of an invading army and 
the natives of the country tend to be alternately material 
and marital. An American soldier attached to one of the 
units that made the first incursion onto German soil in 
1944 replied to the superior officer, who was warning 
him against ‘fraternizing’ with the enemy, that it wasn’t 
really the brothers that he was interested in.” Page 88.

The Professor, however, warns against experimenting 
with amalgamation. In speaking of that proposed solution 
he says:

“This solution would certainly be repugnant to a large 
portion of the members of both groups, and would cer­
tainly require a profound alteration in existing senti­
ments. What its final outcome would be in terms of na­
tional solidarity and human quality, lies entirely beyond 
the scope of present scientific prediction. One thing at 
least can be said—such a program should be adopted with 
great caution, because the process would be entirely irre­
versible. If it were discovered eventually that it was a 
mistaken policy, there would be nothing that could be 
done about it. You can no more unmix races than you 
can unscramble the proverbial egg. This would seem to 
be an excellent case for the application of the good old 
maxim, in case of doubt, don’t.”
Human experience teaches that social and political as­

sociation lead to and will bring about intermarriage be­
tween the people of different races. One follows the other 
as night follows the day.

Our forefathers carefully guarded racial purity in the 
early days.



88
“The State of Massachusetts had been earliest to enact 

a law against intermarriage between the Indian and the 
Anglo-Saxon. It was entitled ‘An Act for the better pre­
venting of a spurious or mixed issue.’ Our forefathers, 
understanding the inferior character of the colored faces, 
refused to permit amalgamation, and visited it with the 
severest penalties of law. They possessed a lofty pride of 
race, which, in a great measure, has been lost to their de­
scendants. Their firm resolve to preserve the purity of 
the race, and to continue its dominion over the land, was 
strengthened by the aspect presented by Central and 
South America, and the Spanish Isles. There the races 
had been received into political fellowship; the white 
blood had been adulterated, and government had be­
come a by-word and reproach.”

Massachusetts did not stand alone in prohibiting mis- 
cegnation.

“In Virginia, Massachusetts, Connecticut, Maryland, 
and Pennsylvania, laws were passed, some still existing, 
to regulate, to protect and to punish Indians. In Massa­
chusetts the intermarriage of an Indian and white was 
forbidden as debasing the Anglo-Saxon blood.”

-JA. -If.I P  I P  TP

“Understanding perfectly- the absolute sovereignty 
which had been claimed and exercised by the other 
States in this matter, Georgia repudiated definitely and 
finally the idea of admitting the Indian to her political 
family.

“. . . Not all the logic nor all the rhapsodies of the new 
generation of humanitarians, who looked to equal politi­
cal and civil rights between the white man and the In­
dian could convince the bold Saxons who won their in­
dependence from Great Britain that it was their duty to 
adulterate their white blood and sinks to a level with the 
descendants of the Castilian of the Southern Continent. 
No Federal agent to the Indian tribes could convince 
them that such was their duty. The Indians must go.”

“The Cradle of the Confederacy,” by Joseph Hodg­
son, Pages 106, 108.



The results of association and familiarity are as apparent 
in racial relations as they are in other relations.

“Vice is a monster of so frightful mien 
As, to be hated, needs but to be seen;
Yet seen too oft, familiar with her race,
We first endure, then pity, then embrace.”

Familiarity breeds more than contempt.
One of the earliest segregation laws upheld in this coun­

try is reported in West Chester R. R. Co. v. Miles, 55 Pa. St. 
209 (1867), where it is stated that commingling of the races 
even on streetcars was pernicious for the very reason that 
‘the tendency of intimate social intermixture is to amalga­
mation contrary to the law of races’

It has been said that “The strength of a Nation depends 
more upon the race than upon the Government.”

In a statement before the House Committee on emigra­
tion, Dr. H. H. Loflin, an expert connected with the Car­
negie Institute in Washington said:

“In the long run, military conquest by a superior peo­
ple would be highly preferable to a conquest by emigra­
tion by people with inferior family stock endowments.”

American Institutions and their Preservations, by Wil­
liam W. Cook, Vol. 2, Page 748.

The same author in the same work at pages 567, 571, 
elaborates on the importance of adherence to our racial 
standard and he quotes Dr. Loflin in that respect as fol­
lows:

“Adherence to our racial standards is one of the es­
sential institutions of American Life. Unless this basic 
institution be preserved and developed the essential char­
acter and genius of other American institutions must 
disappear.”



90
The truth of the statement that “the strength of the Na­

tion depends more upon the race than upon the Govern­
ment” was never better demonstrated than in the Mexican 
war, when the capital of a country of seven millions of peo­
ple was captured by less than six thousand white Americans.

After the American General had established order and 
security for life and property in Mexico City,

“Men in and out of office, of great influence, ap­
proached General Scott privately and offered to place at 
his disposal one million of dollars if he would remain in 
and govern Mexico.”

In addition to the million dollars offered the General, 
history says:

“A salary of $250,000 per annum was offered General 
Scott. All the fortresses, all the armies of the country, all 
the custom-houses were already in his hands. A distribu­
tion of a little money, or the arrest of those who were op­
posed to the scheme, would easily secure a favorable vote 
of the Mexican Congress; and then nothing was left to 
obstruct the mounting of the American General to the 
Mexican throne, with as much ease as BERNADOTTE 
ascended the throne of SWEDEN.”

The reasons why General Scott refused these flattering 
offers, were given by the General himself.

“The first reason was, that he could not honorably re­
sign from under his own flag except to add to the glory 
of his country by immediate annexation of Mexico to 
the United States.

“The second reason was that, as there were but one 
million of pure-blooded white men in Mexico, and six 
millions of Indians and mixed Indians, Negroes and 
Spaniards, the American General believed that the an­
nexation of such a population to the United States would 
be an injury to his country.”



91
In short, General Scott spurned an offer of an empire be­

cause of the character of the population. The difference 
between Mexico and the United States is dramatically de­
scribed by a gifted historian as follows:

“The Government of Mexico is modeled after that of 
the United States; but what the pure-blooded Anglo- 
Saxon could accomplish, the mind of the dark races of 
Central America could not even compass. While the 
former advanced with the tread of a giant, driving the 
copper-colored race towards the Rocky Mountain, and 
holding the black race in servitude, Mexico surrendered 
to the optimistic ideas of natural race equality, which 
were sweeping over France and the Iberian peninsular. 
While the United States, with a homogenous population 
of citizens, bounded to the front rank of nations, her 
mongrel sister Republic fell to the earth before a single 
feeble blow from a handful of brave and intelligent white 
men, under the lead of General Scott.”

The “Cradle of the Confederacy,” by Hodgson, pages
253-256.

As Burke says:
“Better be alarmed by the midnight bell than be 

burned in your bed.”

Senator Robert Tooms once said:
“This Republic was born of the soul of a race of pi­

oneer white freemen who settled on our continent and 
built an altar within its forest cathedral to Liberty and 
Progress. In the record of man has the negro ever dream­
ed this dream? The answer is ‘No’.”
The negroes racial constitution will never allow the ne­

gro to become “a dreamer of dreams.” Capacity for self- 
government, capacity to govern others is no part of a ne­
groes racial constitution. The negro is a creature of the 
tropical climate where fruit and nuts are plentiful and 
where clothing is not required for protection against the 
winter cold. The negro has never been under the necessity 
of producing anything through voluntary cooperation. The



92
essentials of savages in the jungle are few and do not include 
protection, transportation and marketing of goods. His 
racial constitution knows not the meaning of social respon­
sibility.

The white race received the Ten Commandments upon 
tablets of stone fresh from the hands of God on Sinia’s burn­
ing summit. The white race received the Golden Rule 
from Jesus of Nazareth himself. The white race faced King 
John at Runnymeade and wrung from his Magna Charta 
the right of trial by jury. The white race sailed the 
angry Atlantic in a wooden tub and landed at Plymouth 
Rock and carved a continent out of a wilderness. The white 
race wrote the Declaration of Independence, signed the 
Constitution of the United States, carried the stars and 
stripes “to the Halls of Montezuma, and the shores of 
Tripoli,” to the heights of Okinawa and to Berlin beyond 
the Rhine. The white race harnessed steam, developed elec­
tricity and made its power subject to the will of man. The 
white race made a spark jump out into the night and leap 
leagues of snarling seas and cry to the shore for help. The 
white race added the highways of the eagle to the paths of 
man. The white race dotted this universe with houses of 
worship whose spires stab the skies and whose golden cross­
es kiss the sun. The white race supports missionaries in the 
four corners of the earth. The white race split the atom 
and eliminated the yellow beast as a peril to progress, and 
fed a former enemy by an air lift that astounded the world.

The negro has had just as long as the white man to de­
velop his civilization, but not once since God cursed Cain 
had he built a ship, flown a flag, produced literature or sug­
gested a creed.

It is interesting to note that when the wartime manpower 
shortages forced a wider acceptance of negro labor and led 
to the decline of segregation on the job in many areas in 
the North, RESIDENTIAL SEGREGATION INCREAS­
ED.



93
“The Negro Ghetto,” pages 271, 272.

It is not democracy, but idocy for Americans to weaken 
in any degree the blood that is responsible for the vigor and 
glory of this Republic.

c.
Equitable Residential Segregation 

Beneficial to the Negro
Segregation is advantageous to the Negro, as has been 

many times pointed out. For instance in NEGRO FIOUS- 
ING, Page 213, we find:

“Whatever political power the Negro exerts is derived 
from segregation. In several of the large cities, such as 
New York, Philadelphia, Chicago, and Cleveland he 
elects one or more members of the city council and some­
times at member of the state legislature as a result of his 
localized vote.”

Professor Dowd in his Book, THE NEGRO IN AMER­
ICAN LIFE, Pages 474-4175, says:

“The white people outside of the South who have writ­
ten about Negro segregation generally commend it as 
necessary and wise in sections of the country where N egro 
population is large.”

J. M. Mecklin, of the Pittsburgh Psychological In­
stitute, in his book, Democracy and Race Friction, ex­
presses his opinion as follows: “Viewed from the stand­
point of the good of society as a whole, laws requiring so­
cial segregation in the South are undoubtedly based up­
on a sound social philosophy.’

“A. B. Hart, of Harvard University, believes that:
‘Race separation would give greater opportunities to 

the Negro, and reduce the contract with the lower class 
of whites out of which comes most of the race violence in 
the South.’

“Maurice Evans, an Englishman long resident in 
South Africa, who has studied the Negro in the United 
States, takes the ground that segregation is working to



94
the advantage of the Negro: ‘the segregation of the race 
has thrown the members on their own powers, and has 
developed the qualities of resourcefulness. The very pro­
cess which may have seemed to some like a policy of op­
pression, has in fact resulted in a process of development.'

“What would happen to the Negroes in the South, if 
they were not segregated? They would have to compete 
in every occupation with the whites; they would find the 
door of opportunity practically closed to them in all the 
higher walks of life. It would rarely happen that a Negro 
could secure a position as teacher in a school, as pastor 
of a church, or as editor of a paper. There would be no 
Negro doctors, dentists, lawyers, actors, or singers. Even 
in the unskilled trades they would have to compete with 
the white man.

“What does the Negro gain by segregation? He finds 
in the South a large field of employment open to him 
with little or no competition from the whites. In other 
words, segregation enables him to lead an easier and less 
strenuous existence, which insures to him a diminishing 
death-rate and a higher birth-rate; also, it enables him to 
resist the downward pressure into poverty, vice, and 
crime. Above all, segregation builds up cooperation and 
race pride, and, by diminishing the incentive to imitate 
the whites, tends to bring out in the race its special ap­
titudes and geniuses. The progress of mankind can be 
best advanced by each race’s developing the genius and 
culture peculiar to it instead of striving to imitate 
another.”

d.
/ Residential Segregation Lessens Racial Antipathies

VV In the Literary Digest of September 7, 1935, it is re- 
M ported that the heads of the Maryland School System in- 
' / formed the court in their appeal that the biracial school 
/ system undoubtedly has been a leading cause of the present 
I amicable and cooperative relations which exist in the state 

between the races, resulting from different cultural back­
grounds.



95
The people will not follow the Court if its decision is 

contrary to a decision made by the people on a subject 
which they feel better qualified than the Court to decide 
and which they feel extends the law and the Constitution 
into the governance of their social life to an unwarranted 
extent and beyond any reasonable interpretation of even 
the so-called elastic clauses of the Constitution.

“Segregation enables the Negro to find among his 
own people as many opportunities in the higher walks 
of life as are found among the white people. He may be 
a merchant, banker, doctor, lawyer, dentist, school-teach­
er, college president, pastor of a church, editor of a pa­
per, actor, musician, officer in a lodge, and so forth. In 
many Southern states there are more Negroes holding 
higher positions in professio?ial life than in the entire ter­
ritory of Brazil, where segregation has largely broken 
down as a result of racial intermixture

W. T. Couch, Publisher Chicago University Press, a 
publisher not unfriendly to the Negro, says:

“I believe that if complete elimination of segregation 
could be accomplished overnight—as many of the authors 
of this volume assume it ought to be—the consequences 
would be disasterous for everyone and more so for the 
Negro than the white man.”

“What The Negro Wants,” Page XX.

“Hodding Carter, publisher and editor of the Green­
ville (Mississippi) Democrat-Times was awarded the 
Pulitzer Prize in 1946 for editorials on racial and religious 
tolerance. He has consistently and courageously stood for 
social justice to Negroes; he has strongly advocated prac­
tical measures for their educational health, and economics 
betterment; and has been in general a salutary influence in 
the area where his newspaper circulates. For these reasons 
he has been called everything from a ‘nigger lover’ to a



96
communist, and has become a controversial figure through­
out Mississippi.

“Yet these are the words of this alleged firebrand when 
he addressed students of the University of Mississippi in De­
cember, 1936:

“ ‘As Southerners our great challenge is to lift the 
economic, health and education standards of the Negro 
together with our own. . . . But I want to make it clear. 
. . . that I consider any program which would end the 
segregation of races in the South as unrealistic and dan­
gerous to the hope of progress in race relations. . . .”

“Where I was Born and Raised,” by David L. Cohn, 
Page 295.
The white man has risen through separation. The negro 

and other races must walk the same path if they would rise.
“The attempt to impose social intimacy and inter­

course between the races by legal enactment would 
probably tend only to embitter the prejudice which exists 
between them.”
Professor Fairchild, in “Race and Nationality,” at Pages 

183 and 184, speaks words of wisdom to those who would 
change human nature by legislation. He said:

“In dealing with race and nationality problems, as in 
all other social affairs, sound and constructive action 
must be based upon people as they are, not as they ought 
to be or as the liberal spirit might wish to have them. 
This does not mean in the least that efforts to change 
public attitudes and sentiments are useless and should 
be abandoned. Quite the contrary. The hackneyed say­
ing that ‘you can’t change human nature’ is as false as it 
is stultifying. But if you want to avoid creating more 
trouble than you remove, the change in human nature 
must precede the practical measures that assume that it 
has changed.” Pages 183, 184.

e.
Residential segregation makes each race more at ease.



97
The whites because it provides a district for the Negroes 
and the Negroes because they feel less imposed upon and 
more independent.

Because of this feeling of independence the Negro, as a 
race, is more progressive under residential segregation. 
There is a greater desire for him to move forward in that 
he feels he is improving his own castle rather than that of 
the white man. (See Reuther, “The American Race Prob­
lem.” (1927) Chapter XVI).

Mr. Shannon says that with segregation, “All would have 
better opportunity to develop along normal lines, towards 
racial self sufficiency, racial self respect and racial self re­
liance.” This is one of the important elements prompting 
various legislatures to enact laws separating the races in 
trains, schools and hotels.

The claim that segregation stigmatizes the Negro as an 
inferior being was disposed of in Plessy v. Ferguson, 163 
U. S. 537.

There is a manifest difference between caste relations 
and race relations. The City takes the emphatic position 
that segregation and accepted race differences is not and 
does not establish a caste system. The difference between 
caste and race is pointed out in an article in the American 
Journal of Sociology, Volume 50, beginning at Page 51, in 
which Oliver C. Cox warns against confusing caste relations 
with race relations.

“The world view of the caste is turned inward, and its 
force is centripetal; that of Negroes is turned outward, 
and its force is centrifugal. Negroes, in America, at least 
are working toward the end that Negroes as such shall 
become nonexistent. However, the cast of either low or 
high status is devoted to the perpetuation of itself. The 
solidarity of Negroes is admittedly temporary; it is a de­
fense-offense technique. The idea of negroes is that they 
should not be identified; they evidently want to be work­
ers, ministers, doctors, or teachers without the distinction 
of being Negro workers—negro ministers, and so on. In



98
short, they want to he known unqualifiedly as American 
citizens, which desire, in our capitalist society means as­
similation and amalgamation.”
Caste is a perpendicular and immutable separation of 

individuals. Segregation and race differences is a horizontal 
or area grouping of people based on social intercourse and 
the homogeneity which makes social intercourse possible. 
Segregation is not a bar to the rise of any individual to the 
highest position in the land. It is for this reason that the 
City urges that in dealing with a social problem, the Court 
must follow the people and respect their custom and way of 
living.

f.
Equitable Segregation

In the Foreword of his book, “Planning for The South,’’ 
(published by The Vanderbilt University Press), John V. 

Van Sickle said that the volume is a plea for regionalism 
by a man without a region. “My residence in the South 
dates from September, 1938. With the exception of the 
first eight years of my life in Colorado and the next eleven 
in Baltimore, I have never spent more than five years in 
any one place; more than ten years were spent in various 
parts of Europe. My regionalism is thus intellectual rather 
than emotional. Nor is it the result of any sudden con­
version.”

With that kind of a background Professor Van Sickle 
discusses the subject of equitable segregation in a fine way.

We quote liberally from the volume, pages 71 to 74, with­
out single spacing the quotation:

“The solution of the Negro problem in the South is 
complicated by lack of agreement as to a formula. Many 
extra-regional students of the cause of this underprivileged 
group see eventual amalgamation as the only permanent 
solution. Except for a few extremists, the adherents of this 
school of thought are prepared to go slowly, providing there



99
is real progress from year to year. They regard this ‘pa­
tience’ as evidence of their realism and statesmanship. Only 
clear evidence of a trend toward equality, they argue, can 
prevent the extremists from gaining the upper hand and 
forcing a rate of change too rapid for the Southern mores. 
They urge Southern white leaders to cooperate with them 
in removing the external and hence humiliating stigmata 
of inferiority, such as the Jim Crow cars on the railroads 
and the corresponding sections in the urban busses, the 
separate waiting rooms for Negroes in railroad stations, the 
exclusion of Negroes from hotels, etc. When moderate 
southern white leaders balk at such proposals, they con­
clude that the South is bereft of statesmen in this area of 
human affairs.

“The trouble is, of course, that Southern whites look be­
yond the concrete measures under discussion for the ulti­
mate goal. If amalgamation is the ultimate goal, they will 
oppose reforms which to an outsider appear entirely reason­
able. As long as amalgamation is set up as a goal, segrega­
tion and subordination will be set up in opposition and the 
white majority in the South ivill be found solidly behind 
that goal.

“This deadlock cannot be broken with the consent of 
Southern whites until amalgamation is frankly discarded as 
the ultimate solution of the Negro problem in the South. 
It is greatly to be hoped that it will be discarded for it is an 
unworkable and unrealistic formula. Racial lines appear to 
be about as distinct now as at any previous period in re­
corded history. It is hard enough to assimilate culturally 
distinct groups within a single race—witness the French in 
Canada, the German enclaves in Southeastern Europe and 
the Baltic provinces, the Hungarians, the Czechs and the 
Irish. None of these cultural subgroups want amalgama­
tion.

“Even less do the distinctive groups popularity known 
as races want amalgamation. What they want is what cul-



100
tural subgroups want, namely, cultural autonomy. What 
they resent is any implication of inferiority. Removal of 
the stigma of inferiority will do more to promote the peace­
ful living together of this mosaic of races and groups than 
a century of preaching of amalgamation. The latter is a 
glacial process little, if at all, susceptible to social controls. 
The task ahead will not be solved by denying differences, 
but by recognizing them and treating them as differences in 
kind and not in excellence. Young people must be edu­
cated to this concept. They must be taught that the prin­
ciple of equity can be applied to groups within as well as 
to groups outside the national frontiers.

“Professor Bronislav Malinowski has used the term 
‘equitable segregation’ to describe this approach to the 
Negro problem and has endorsed it as offering the greatest 
prospects of an early amelioration of the status of the South­
ern Negro. Just what are the implications of the phrase?

“Frank acceptance of the principle will help to break 
down the psychology obstacle to reform from within the 
South. Many vexatious and humiliating features in the 
present situation can be removed if it is clear that the end 
goal is the establishment of equality of opportunity be­
tween two distinctive groups and not as an attempt to blur 
the obvious distinctions between the groups. It thus per­
mits of progress without a frontal attack upon the existing 
mores. It does not call for the abolition of separate cars 
for Negroes on railroads, or for separate schools, or sep­
arate waiting and rest rooms in railroad stations and build­
ings open to the general public. But it does call for cars, 
adequate in number for the needs of the Negro population 
and every bit as good as those provided for the whites; for 
rest rooms in public buildings comparable to those avail­
able to the whites. It does not mean that whites and Ne­
groes should be mingled in the same school buildings but 
that the buildings provided for the Negroes should be as 
good as those provided for the whites in the same school



101
district and that the education should be as excellent and as 
appropriate to their occupational prospects as that avail­
able to the white children. It does not require that the 
vote be indiscriminately and immediately accorded to every 
Negro but it does imply that reasonable restrictions on vot­
ing shall be honestly and equitably applied to whites and 
Negroes alike. It does not necessarily involve the indis­
criminate employment of Negroes and whites side by side 
in public and private business, but it does imply that man­
agement will use its inkeunity to devise ways and means 
of opening up to Negroes every occupational category for 
which they can demonstrate the requisite capacities. Tact 
and firmness can accomplish much. For example, the Lock- 
heed-Vega Aircraft Corporation, ‘after some hesitation de­
termined to experiment with Negro labor in one of its 
plants. It got ready very carefully by going over the plan 
with its foreman. In the summer of 1941, each one of 
Lockheed’s many thousand white employees was given a 
statement of the company’s intention. Presently the intro­
duction of Negroes into the plant began, and now several 
hundred are employed there.’ If our economy can be kept 
operating at something approaching full employment, the 
white man's objection to working beside the Negro may be 
expected to decline. The present acute shortage of man­
power makes this a favorable time to experiment.

“The principle of “equitable segregation’ does not call 
for the breaking down of segregated residential districts 
in our cities of tomorrow; but it does call for the provision 
of wholesome residential districts for Negroes equal to those 
available to white groups of comparable incomes.

“In brief, the principle of ‘equitable segregation’ justifies 
the maintenance of the dual institutions which have been 
so severely criticized outside the South and which admitted­
ly bear so heavily upon the inadequate recourses of the 
South.”



102
PROPOSITION IV

Residential segregation is essential to happiness and 
contentment, the peace, tranquility, and good order of 
the City of Birmingham.

The Commissioners of the City of Birmingham, sworn to 
uphold the Constitution of the United States, tell the world 
in Ordinance No. 709-F, under their oath, with an author­
ity not to be denied, that,

“ (a) From the date of the original settlement of this 
City unto the present time it has been the invariable cus­
tom, supported for most of the time by municipal law 
and universally observed, to require white and colored 
residents to live in separate residential areas.

Nobody disputes that. It cannot be challenged.
“ (b) That when attempts have been made by mem­

bers of one race to enter for purposes of a permanent 
residence into an area commonly recognized as set aside 
for members of the other race, violence, disturbances of 
the peace, destruction of property and life has resulted al­
most without exception.

That statement is incontrovertable. There were six 
bombings in 1949 before the passage of this ordinance, as 
a result of attempted negro invasion of this white residen­
tial section.

“ (c) This Commission further finds from its knowl­
edge of present conditions and public sentiment in this 
City that in the event attempts shall now or in the fore­
seeable future be made by members of one race to estab­
lish residences in areas heretofore regarded as set apart 
for the residences of members of the other race, breaches 
of the peace, riots, destruction of life and property will 
follow.

Any other finding would be a defiance of facts known 
to all.



103
“ (d) That neither the City of Birmingham nor any 

other law enforcement agency is able so completely to 
police, supervise and safeguard the person and property 
of persons attempting to establish a residence in an area 
not commonly recognized by members of the race to 
which such person belongs, as to prevent injury to such 
persons, members of his family, third parties in the area 
affected, and destruction of property.

Mark Ethridge in effect said all the powers of the Allied 
and Axis armies could not do that.

“ (c) That the zoning ordinances of the City of Bir­
mingham now in effect do substantially and fairly well 
delineate those areas historically and generally regarded 
as available for residences and occupation by members of 
the white and colored races.

This was not challenged in the court, below nor was it 
claimed that the Birmingham zoning ordinance was not an 
equitable zoning ordinance.

“ (f) That this ordinance is necessary to preserve the 
peace of said City and to safeguard the property and saf­
ety of its citizens and of the public in general.”

We trust this court is impressed with the seriousness of 
the situation and the sincerity of the declaration of these 
public servants. There are nearly 400,000 people in Bir­
mingham, white and black, who will testify to the same state 
of facts.

The N egroes themselves furnish evidence of the unhappy 
situation in Birmingham; in their telegram to President 
Truman on August 13, 1949, they say:

“Racial tensions sharp enough for unhappy possibil­
ities.”
On the same day they telegraphed Attorney General Car­

michael:



104
“Racial tensions made acute by Friday night bombings 

of two ministers homes.”

In a telegram to Commissioner Morgan on the same date 
they said:

“The NAACP will fight without let up all forms of 
racial zoning because such is unlawful. We shall .con­
tinue to support and encourage Negro citizens to stand 
firm at all cost and sacrifices for the prescious right to 
own and live where one can buy or rent.”

In a telegram to the Sheriff of Jefferson County they said:

“The community has been inflamed by unfortunate 
statements attributed to at least one city public official.”

In a telegram to the Chief of Police they said:

“A situation exists growing out of controversy over ra­
cial residential zoning which demands hourly police pro­
tection for Reverend Milton Curry of 1100 Center Street 
North and Reverend E. B. Deyampert of 1104 Center 
Street North.”

In another telegram to President Truman dated June 2, 
1949, the NAACP informed him that it feels,

“that local police protection is breaking down in 
Smithfield area where racial zoning contest has provided 
controversy.”

A leading speaker at the negro mass meeting in Birming­
ham on August 17, 1949, said:

“We will not cease calling on you until the flag of vic­
tory shall not only wave over the battlefield of Center 
Street, but the flag of victory will be waving all over Bir­
mingham.”



105
This has been construed to mean that Negroes intend 

to do what they have been accused of preparing to do, 
namely, place a Negro family in each wihte block of Bir­
mingham where it is possible for a Negro to purchase a lot 
in that block. The Steel City Star, a local paper published 
in Fairfield, Alabama, recently carried an editorial com­
menting upon information to that effect it obtained from 
sources it deems reliable.

White people are warned by taxicab drivers, policemen, 
and newspaper people, in Chicago, Detroit, Philadelphia, 
New York and other places that it is highly dangerous for a 
white person to go inside a negro tenament alone in those 
cities, and to remain on the outside unless amply protected.

Birmingham has not reached that stage. But it has reach- j 
ed the stage where white people are not going to allow j 
negroes to move next door to them. They are not interested 
in discussing whether this is democratic or dictatorial, 
Christian or pagan, right or wrong. They simply will not \ 
tolerate it. There are many reasons why they take that j j 
position, and humanity being what it is, must be dealt with I 
as is.

David L. Cohn, an author decidedly friendly to the Ne­
gro, in his book, “Where I Was Bdrn and Raised” tells 
why residential segregation is essential to peace and order, 
and comfort and convenience of all in Birmingham.

“Whatever may be the disablities worked upon the 
negroes and whites by segregation; whether the fears that 
provoke it are reasonable or unreasonable; whether it is 
anti-democratic, anti-constitutional, or anti-christian, 
there is little chance, in my opinion, that it will be oblit­
erated within foreseeable time. He who evades, beclouds, 
or challenges the issue may do great harm to the whole 
American society. He who does not take segregation as 
the starting point for an exploration of the possibilities 
that may lead to a betterment of the race question will 
find himself lost in a haunted wood.



106
Since the deep-seated mores of a people cannot be 

changed by law, and since segregation is the most deep- 
seated and pervasive of the Southern white mores, it is 
evident that he who attempts to abolish it by law runs 
risks of incalculable gravity. There are nonetheless 
whites and negroes who would break down segregation 
by Federal fiat. Let them beware. I  have little doubt 
that in such a case the country would find itself nearing 
civil war.” Page 294.
Mr. Cohn might be excused for mentioning the civil war 

on account of the fact that he was southern born. But as 
startling as it may appear, Professor Fairchild of New York 
reaches the same conclusion.

“As long as the bulk of the American people are pos­
sessed by group antipathy, suspicion, jealousy, envy, 
hatred, condescension, it is worse than useless to put in­
to effect measures that would be good if they were all 
broad-minded, tolerant, hospitable, and charitable. Ev­
ery well-convinced, psychologically sound, practically 
efficacious campaign to eradicate these noxious traits 
from the American soul is to be welcomed. But the cam­
paign—and its success—must come first; liberal measures 
may follow.

“Out of these truths arises the tragic paradox that the 
various efforts that were made in the midst of World War 
II to improve the lot of the Negro in the United States, 
and to establish greater equality, are having the effect of 
intensifying and fortifying the opposition of those who 
do not welcome this change. Tensions are increased 
rather than relaxed. The gloomy prognostication fre­
quently heard, ‘It looks as if we were going to have to 
fight the Civil War all over again’ is much more than a 
mere wisecrack.” Race and Nationality, Page 184.
Mark Ethridge is quoted by Mr. Cohn on the subject 

of the permenance of segregation as follows:

“Writing five years ago in the Louisville Courier- 
Journal, Mark Ethridge, the publisher of that newspaper 
said:



107
‘He (the Negro) must realize that there is no power in 

the world . . . which could now force the Southern white 
people to abandon the principle of social segregation. It 
is a cruel disillusionment, bearing the germs of strife and 
perhaps a tragedy, for any of their leaders to tell them 
that they can expect it as the price of their participation 
in the war.'

This, it seems to me, is a statement of indubitable fact, 
yet Mr. Ethridge was denounced by the Negro press and 
Northern white liberals as a fascist, a Ku Kluxer, and, 
anticlimactically, a scoundrel.” Pages 294-295.

It requires no argument to demonstrate that anything as 
deep seated as residential segregation in Birmingham is 
essential to happiness and contentment, peace and good 
order in Birmingham.

The people of Birmingham are not without a sound basis 
for their uncompromising stand on residential segregation. 
In that respect they are not out of step with other sections. 
Their beliefs about the Negro are shared by others and the 
beliefs of others are shared by them. They regard as the 
most villianous form of hyprocrisy, political platitudes 
eulogising social equality uttered for the purpose of cor­
ralling the Negro vote when the difference between prac­
tice and preaching is as wide as the Pacific ocean.

In a report by the Chicago Commission on Race Rela­
tions at Page 63, “The Negro in Chicago,” an interesting 
statement is made about beliefs concerning Negroes where 
certain primary and secondary beliefs ar catalogued. We 
take the following from that report :

“Beliefs Concerning Negroes”

“The conduct of individuals is largely determined by 
their attitudes toward a subject and their general beliefs 
concerning it. Definite beliefs concerning Negroes may 
be found in the North as well as in the South, varying 
with the individuals who hold them, according to degrees 
of contact with the Negro group and the individuals’ tra-



108
ditional background. These may be divided according to 
their character and effect into two general classes: (a) 
primary beliefs or those fundamental and firmly estab­
lished convictions which have, all around, the deepest 
effect on the conduct of whites towards Negroes and are 
pretentiously supported by statistics, authorities, and 
scientific research; (b) secondary beliefs, or modifica­
tions and variants of important assumptions as to cardi­
nal attributes.’

r a) Primary Beliefs—Among these primary beliefs are 
j the following:

1. Mentality: That the mind of the Negro is distinct­
ly inferior to that of the white race. Some believe that 
this is due to backwardness in ascending the scale of civil­
ization; some that the Negro belongs to a different spe­
cies of the human family.

2. Morality: That Negroes are not yet capable of exer­
cising social restraints common to white persons; that 
they are unmoral as well as immoral.

3. Criminality: That Negroes possess a constitutional 
character weakness, and a consequent predisposition to 
sexual crimes, petty stealing and crimes of violence.

4. Physical Unattractiveness: That physical laws 
prompt whites to avoid contact with Negroes.

5. Emotionality: The Negroes are highly emotional 
and for that reason are given to quick, uncalculated 
crimes of violence as easily as to noisy and emotional re­
ligious expressions.

b) Secondary Beliefs—As continued repetition of any 
plausible statement without correction of its error event­
ually gives it credence, these secondary beliefs have root­
ed themselves deep in the public mind. Among other 
things it is believed that Negroes are: (1) lazy, (2) ‘hap­
py-go-lucky,’ (3) boisterous, (4) bumptious, (5) over- 
assertive, (6) lacking in civic consciousness, (7) addict­
ed to carrying razors, (8) fond of shooting craps, (9) 
flashy in dress and like gaudy brilliant colors, especially 
red.”

In the same report at Page 43, the Commission points



109
out some of the reasons for the attitude of the whites toward 
Negroes. It is there said:

“The widespread and deep-seated racial prejudice 
among whites against Negroes, heretofor mentioned as 
a psychological basis for the belief that the presence of 
Negroes is disasterous to property values, is directly re­
flected in the unwillingness of whites to buy property 
close to that occupied by Negroes and in their desire to 
sell, even at a sacrifice, when Negroes move into the 
immediate neighborhood.”

Professor Henry Pratt Fairchild gives some good advice 
to those who would treat lightly the determination of white 
people to have residential segregation. In his work on 
“Race and Nationality,” the Professor says:

“Whether understood or misunderstood, correctly de­
fined or incorrectly defined or not defined at all, used 
for good or for ill, regarded as the most important thing 
in life or sniffed at as a mere triviality, the notion of race 
is almost as old as humanity, has influenced men’s think­
ing and behavior in a myriad ways, and cannot be sum­
marily tossed onto the junk heap. Something about 
which whole libraries of books have been written, by au­
thors ranging all the way from hysterical and ignorant 
sentimentalists to scholars of the highest scientific rank, 
cannot be disposed of by a flick of the finger like a speck 
of dust on one’s tuxedo jacket. Men have for ages 
thought, talked, felt, argued, and fought about some­
thing they called race, without making any effort to de­
fine it, and they are not going to accept readily the off­
hand assertion that there is really nothing at all to it, 
made by self professed scientists with no matter how long 
a string of academic initials appended to their names.” 
Pages 8-9.
The Professor then points out that the determination of 

white people to have residential segregation cannot be ig­
nored, nor can the behavior that results from it be dismissed 
as “a vaporous figment of the social imagination.”



110
The fruits of the Negro invasion of white residential 

areas is reported at Page 8 in the Commission report on 
Race Relations as follows:

“Since the riot in East St. Louis, July 4, 1917, there 
had been others in different parts of the country which 
evidences a widespread lack of restraint in mutual anti­
pathies and suggested further resorts to lawlessness. 
Riots and race clashes occurred in Chester, Pennsylvania; 
Longview, Texas; Coatsville, Pennsylvania; Washington, 
D. C.; and Norfolk, Virginia, before the Chicago riot.”
And in pointing out the reason for the Chicago riot, the 

Commission said:

“The Negroes overran the hitherto recognized area of 
Negroe residences, and when they took houses in adjoin­
ing neighborhoods, friction ensued. In the two years just 
preceding the riot, twenty-seven Negro homes were 
wrecked by bombs thrown by unidentified persons.”
The record in this case incontestably shows that six 

bombings of Negro homes occurred in Birmingham in 
1949. We do not suppose that we are violating any confi­
dence when we say that the District Judge who decided this 
case in favor of the Negroes informed their counsel, that, 
in his opinion it would be very unwise for them to build 
and occupy a home on their property at the present time. 
He reminded them that he decided a similar case in 1948 
in favor of a Negro, and when he attempted to occupy the 
property his house was destroyed by an explosion.

This situation in Birmingham in no different from the 
situation in other places. In the report of the Chicago 
Commission on Race Relations, at Pages 44 and 45, the 
Commission describes the situation that prevailed there at 
the time the report was made:

“Bombings—The antagonistic sentiment attributable 
to the Negro housing situation both incited and condon­
ed the fifty-eight bombings of homes committed between 
July 1, 1917.”



I l l
The United Press reports the following on March 4, 

1950, from Dallas, Texas, a city said to be most free from 
race prejudice, and without a race problem:

“NEGRO HOUSE BURNED 
IN ‘ALL-WHITE’ SECTION

Dallas, Tex., March 4— (U.P.) —A vacant house on the 
Dallas Southside was gutted by fire last night, one day 
before a negro family was to take over occupancy in an 
‘all white’ block.

Fire Chief F. H. Colbert disclosed it was the second 
time within a week that the same house, sold a Negro 
family by a white owner 10 days ago, had been set afire.”

Since this case was decided in the District Court two ne­
gro houses adjacent to the white section in Smithfield have 
been bombed, one of them in territory recently zoned col­
ored residential.

Speaking further on the race problem, and its reality, and 
the consequences of its presence the Chicago Commission 
on Race Relations said:

“Penetrating observers of human conduct, have long 
realized, and noted, that men’s voluntary conduct is 
based upon belief about the facts rather than upon the 
facts themselves, and unfortunately an erroneous belief, 
that is, one not soundly grounded in reality, constitutes 
just as potent a stimulus to behavior as one that is in 
complete accordance with reality. Thus to the sociologist 
a belief, an illusion, a phantasmagoria of any kind be­
comes a social fact. However erroneous, confused, con­
tradictory, and generally obfuscated popular thinking 
about race may be, it cannot be ignored, nor can the be­
havior that results from it be dimissed as a vaporous fig­
ment of the social imagination. Race, whether real or 
imaginary, scientifically demonstrable or naively vision­
ary, is with us, and if we are to act intelligently it must 
be dealt with consciously and objectively. As a matter of 
fact, race is possibly more of an inescapable reality in the



112
year 1947 than at any other point in human experience.” 
Pages 9-10.

One of the strongest arguments in favor of residential 
segregation is furnished by the Negroes themselves. Re­
porter Bishop pointed out in his report of a survey of seg­
regation in the North, that in some northern cities, negro 
citizens living in good residential districts sought court 
injunctions to prevent housing authorities from erecting 
housing projects in their areas ON THE GROUNDS THE 
CLASS OF NEGROES WHO WOULD LIVE THERE 
WOULD DEPRECIATE THEIR PROPERTY 
VALUES.

Professor Fairchild evidently had this in mind when he 
commented on class distinction among Negroes. On Page 
180, Race and Nationality, he says:

“. . . among the colored population of the United States 
there exist class distinction and social gradation just as 
truly as between the Negroes and the whites. Most of it is 
based on the same criterion—color. But there is also a 
sharp cleavage between the continental Negroes and na­
tives of the West Indies, particularly Puerto Ricans.”

An ordinance that conforms to the ideas of whites and 
blacks alike, and preserves peace and tranquility in a popu­
lous community where the population is divided almost 
evenly between the two races, must be a valuable social 
and economic contribution.

There have been scores of riots, hundreds of dead, and 
thousands of wounded, with astronomical property dam­
ages, as a result of the effort of Negroes to invade white resi­
dential sections for residential purposes. So far as we are 
advised, NOT ONE DISORDER HAS BEEN STAGED 
AS A RESULT OF RESIDENTIAL SEGREGATION 
BEING ENFORCED.

Ben Price, writing for the Associated Press in a story



113
out of Atlanta on November 28, 1949, published in the 
Birmingham News of that date states:

“Spread over the South is a 3,000 member network for 
the prevention of race riots and lynching.”

The existence of such an organization, composed of N e- 
roes and whites more forcibly demonstrates the clear and 
present danger of catastrophic consequences of negro in­
vasion of white territory, than any language that might be 
employed.

“There is something ominous and urgent in the race 
relational situation in the United States.”

-Y- -Y- -Y-•TP I f  *

“There is no way to avoid a head-on collision with 
the color question.”

# #
“Today, most white people North as well as South, 

do not accept the Negro as an equal.”

What The Negro Wants, pages 7 and 11.

Racial tension has invaded the schools with tragic con­
sequences. Herman H. Long and Charles E. Johnson in 
their book, “People v. Property,” at page 84, gave an ac­
count of what happened in Gary, Indiana, in the following 
language:

“In 1945, a wave of conflict between groups of Negro 
and white students found expression in several areas of 
the North, representing on the adolescent level an ex­
ample which adult grownups had so clearly maintained. 
In Chicago, New York City and Gary, Indiana, pro­
tests and strikes by organized groups of white high school 
students against the presence of Negro students in the 
school occurred. These were developments of serious 
proportions. In Gary, where two schools participated in 
strikes against the presence of Negro students, white 
students demanded of the Board of Education that all



114
Negro students be transferred to a segregated Negro 
school and that the Board discontinue ‘bi-racial experi­
mentation.’ When the Board refused to comply with the 
demands of the strikers, approximately five hundred 
parents held a mass meeting at which they condoned the 
action of their children and demanded that the Board 
establish separate schools.”

The Rocky Mountain Law Review, Volume 18, at page 
153, quotes from 147 Fed. (2d) at page 837 as follows:

“That the broad social problems, of which the ques­
tion in the instant case is but one aspect, is both serious 
and acute, no thoughtful person will deny. That its right 
solution in the general public interest calls for the best in 
statesmanship and the highest in patriotism is equally 
true. But it is just as true that up to the present no law 
or public policy has been contrived or declared whereby 
to eradicate social or racial distinctions in the private 
affairs of individuals # #

PROPOSITION V
Equitable Residential Segregation Is Economically 

Desirable In Birmingham
Inseparably related to the social necessity for residential 

segregation is the economic necessity of such segregation- 
in order to protect private investments and the public wel­
fare. The economic benefits of residential segregation rest 
essentially on the matter of property values as they relate to 
the racial homogeniety of communities. An exhaustive 
examination of both factual data and the opinions of quali­
fied individuals, agencies and organizations reveals a large 
area of agreement to the effect that racial movements, espe­
cially the movement of negroes, has a decidedly depreciating 
effect on residential property values. In fact, it appears 
that the only area of disagreement is that of how long a 
period is required for the municipality to recuperate from 
the economic effects of the depreciation which the white



115
property owners were forced to take pursuant to their us- 
usually rapid movement out of the invaded area.

The city of Birmingham is firmly of the opinion that the 
community-wide economic aspects of the ordinance are 
clearly pertinent, and in fact vital, to an adequate constitu­
tional analysis of this case. The following data and opin­
ions are from real estate and appraisal agencies, govern­
mental agencies, municipal authorities, other students of 
the problem and finally, from negroes themselves.

The National Association of Realtors has a very definite 
policy which is a part of its “Code,” Article Thirty-four of 
which reads:

“Realtors should never be instrumental in introduc­
ing into a neighborhood members of any race or nation- 
ability, or any individuals whose presence will clearly be 
detrimental to the property values in that neighbor­
hood.” (See Long and Johnson, People v. Property, 
page 61).

“The St. Louis, Missouri Real Estate Exchange has 
gone much further than other boards in Northern cities 
in prohibiting the sale and rental of property in white 
neighborhoods to Negroes. Are realtors not bound to 
obey these racial boundaries in their dealing with Ne­
gro clients.”

In it’s answer to the complaint in Dorsey v. Stuyvesant , 
Town Corp., 87 N. E. (2d) 241, the Stuyvesant Town Cor­
poration admitted its policy of racial exclusion and asserted 
that the successful operation of the project and the safety of j 
the investment of funds required that Negroes should not j 
be accepted as tenants in this project. (Yale Law Review, I 
Volume 57, Page 439) .

The validity and accuracy of the judgment of real estate 
dealers, and the essential basis for their policy, is clearly 
stated by Clarence A. Perry in Housing for the Machine 
Age (published by the Russell Sage Foundation, 1939), 
page 245, as follows:

V



116
“It is the man who sells houses who comes to know, 

better than anyone else, what invests them with value. 
From long experience he understands that the one fac­
tor that influences every customer is the indefinable 
thing we call ‘residential quality,’ an attribute not mainly 
of the house but of its neighborhood.”

Of equal validity, and even more scientific and objective, 
are the opinions of, and data compiled by, real estate ap­
praisers. It is the business of these trained specialists to 
know and evaluate all the factors governing the value, ap­
preciation and depreciation, of property. Real estate agen­
cies, leading institutions and private investors rely on the 
reports of these specialists and it is felt that the Court will 
be on the soundest of ground in taking cognizance of their 
findings on the effects of negro migration into white resi­
dential areas.

The managing editor of The Appraisal Journal, publish­
ed by the American Institute of Real Estate Appraisers, 
(January, 1944, pages 47 and 48) said:

“Infiltration of incompatible races has always been a 
red flag to the appraiser. It is of special significance now, 
and will be more important after war. N o one thing can 
so quickly depress values as the beginning of a race move­
ment.

“The white and the colored can work side by side 
in certain industries but the mixing of the races in fam­
ily life cannot be countenanced. The trend and the man­
ner of handling it will be most significant to real estate.”

In this same publication, The Appraisal Journal, Jan­
uary, 1943, (article entitled “Both Sides of The Color 
Line”) , is found the following:

“What is blight?
“Blight is any use of land that does not produce an 

economic return, and which results in financial distress.
“The causes of blight in residential areas may be listed



117
under three classifications. They are known as initial 
causes, contributing causes, and resulting causes. Initial 
causes of blight are so important in their effect that the 
presence of any one of them is enough to cause blight.

“Another cause of initial blight is a variety of uses 
which cannot be reconciled, as racial groups for which 
the former dwellers have a decided antipathy. Dwellings 
used as boarding houses, hotels, taverns, or the conver­
sion of the larger single-family dwelling into rooming 
houses causes blight.

“Why is an area blighted because a Negro family 
moves in? What does the presence of several Negro fam­
ilies in a block do to the rental return on a given proper­
ty? What happens to the block or more of housing which 
lies between the ‘all-white’ and the ‘all-black’ groups?

“Why must there always be this sharply drawn line be­
tween the groups. And in searching for the answer we 
come at once upon the subject of miscegenation. It is 
the ‘end-all’ argument behind which non-thinking peo­
ple retire. From a psychological, social, and biological 
standpoint marriage between the races does stand as a 
barrier to complete fraternity and it is a locked door 
against equality. It is a mountain in the pathway of the 
forward moving forces, but it is a mountain which 
neither white nor black would wish to see moved. Like 
unto like is a law which carries terrible penalties if 
broken.”

Writing in “The Review of the Society of Residential 
Appraisers,” (April, 1939, pages 13 and 14), Louis M. 
Pratt, Senior Member, Pasadena, California, said:

“The value of real estate depends upon its salability 
or marketability. Any factor which limits the probable 
number of willing purchasers must be taken into con­
sideration. It is therefore essential to ascertain the pres­
ence of any adverse influence which lessen or destroy 
desirability, from the standpoint of the typical buyer.

“No matter how attractive a residential area may be, 
in its appearance, it will not possess maximum desirabil­
ity unless it is occupied by people who will be contented



118
and comfortable, generally speaking, in one another’s 
company. This requires that they be more or less alike 
in their manner of living, their education, and their 
financial status, and not antagonistic or incompatible in 
their racial characteristics or nationalities.

“For this reason private restrictions permitting oc­
cupancy only by certain racial groups appear to be de­
sirable and necessary for the proper stabilization of values 
in residential neighborhoods. (This stabilization of 
values is also reflected, to a large degree, in the rents 
paid in a district restricted as to race. And the rents 
paid, of course, have an important bearing upon market 
value) . This idea of racial restrictions is not a matter of 
intolerance but an attempt to ‘make everybody happy’ 
in their home surroundings.

“If there are no racial restrictions, or if they are soon 
to expire, there is always the danger of infiltration of 
inharmonious racial groups. If this actually takes place, 
it causes serious and permanent depreciation of land 
values, and severe depreciation, which may be temporary, 
in the value of improvements. The permanent lowering 
of land values tends to lengthen the remaining economic 
lives of the residential structures in the district and this 
fact may eventually result in the recpature of part of the 
improvement value lost during the period of transition.

“The race and nationality of people in a residential 
district greatly influence the desirability of the neighbor­
hood and the amount of rent which will be paid. Areas 
occupied by mixed races and nationalities invariably are 
of low rent-paying ability. The more nearly uniform a 
district is in this respect, the higher will be the rents ob­
tainable, generally speaking.

“In a mostly black district, values will be higher and 
much more stabilized, and property more salable than in 
a neighborhood in a transitional stage from white to 
colored. Even shacks are salable in a black district. But 
let one Negro move into a ivhitp district and it puts a 
quietus on all sales of nearby residences.

“Two months ago I was asked to appraise a bungalow 
in the northwest part of Pasadena, in order to estimate 
the selling price which could be obtained within a rea­
sonable time. It is well and favorably located in every



119
respect except that the average well-informed Pasaden­
an is inclined to think that it is in an area partly occupied 
by the black race, especially on account of the fact that 
subject street has many black residences along two-thirds 
of its length, although there are none within half a mile 
of the property appraised and the subject district, which 
is large in area and is residential against occupancy by 
any but members of the Caucasian race.

“The house was built in 1938, is of good construction, 
well planned and attractive. The immediate neighbor­
hood is good and about 60% built up with attractive 
homes, mostly owneroccupied.

“The estimated replacement cost of the house and lot 
was $4,000 and the house is practically new. Owing large­
ly to the fact that the street has a ‘black name,’ I consider­
ed it necessary to deduct $750 or nearly 19% from the 
estimated replacement cost in order to arrive at an esti­
mated selling price of $3,250, and I advised the owner 
that it would be much more difficult to sell property on 
this street than in other portions of the city not so handi­
capped.”

In the July, 1943 issue of the Appraisal Journal (page 
247) there is the following:

“Negroes and whites do not live together in harmony 
in one community, except in rare cases, and when the Ne­
gro moves in the whites move out.

“Therefore it is most desirable that communities now 
occupied by Negroes be improved and rehabilitated, that 
new buildings be built, new schools and recreational fa­
cilities be established and the area be expanded where 
there is need and where expansion will not destroy pres­
ent existing property rights and values of others.”

Hyder K. Lee in the same journal (July, 1945), explains 
the matter this way:

“The successful use of the comparative method of ap­
praisal requires a thorough knowledge of the factors



120
which require several pages simply to list all of these 
factors. Some of the more important ones are.

# # *

“12. Zoning restrictions.
# # #

“13. Private restrictions.
“19. Racial characteristics of neighborhood.”

M.•If iP

We find the following in the “Review” of the Society of 
Residential Appraisers of December, 1939, by George T. 
Welden, Realtor, Indianapolis, Indiana, in an article en­
titled “APPLICATION OF DEPRECIATION THE­
ORIES” in which he demonstrates that an appraiser must 
view a changing community unfavorably.

“CHANGING COMMUNITIES”
“The so-called invasion of inharmonious groups in an 

area also bears close watching. The new group may be 
equal in economic status to the average former occupant 
of the area. However, measured from the social point of 
view the original occupants may consider such invading 
groups as inferior. Regardless of the appraiser’s personal 
opinion on the social equality of men, he must recognize 
the existence of racial and class prejudices.”

In the same periodical for August, 1940, in an article en­
titled “NEIGHBORHOOD RATING,” (on page 7), we 
find the following:

“The more desirable a neighborhood, the greater in­
centive of the homeowner to cling to and protect his in­
vestment. This is the basic reason why mortgage lenders 
will loan a higher percentage of value in some locations 
than others.”

In view of the fact that residential investment and com­
munity planning are more than matters of the moment, the 
following is a pertinent statement:



121
“If the threat of Negro invasion is removed the young­

er people are often willing to remain in the old home, 
and as property owners take pride in maintaining their 
neighborhoods. It is essential that the property owners 
in threatened communities are given protection and con­
fidence so they can continue their pride in their own 
community and so they will encourage other good fam­
ilies to settle there.”

“The Appraisal Journal,” (July 1943), Page 245.

Appraisers, banks, lending institutions insist that, for 
maximum loans, the property upon which the loan to be 
made must have every prospect of being desirable property 
over a long period of time. They seek definite standards 
upon which to base their estimates of values.

“In seeking these standards they find that deed restric­
tions, city planning, and zoning are the fundamental con­
siderations in the evaluation of all types of property.”

* m .  .y,"A" •A'

“In the building and owning of a house, land is the 
first item of cost; environment is the final source of 
value.” (“The Appraisers Journal,” February, 1940. “A 
Source of Property Value”) .

It would seem that a law which guarantees a good en­
vironment to residential property is of substantial benefit 
to the property.

“Property owners today are really becoming zoning- 
minded. They realize that, while zoning limits their in­
dividual property rights, at the same time it places the 
same limits on their neighbors and, through strict en­
forcement, zoning actually increases and stabilizes the 
value of the properties over which it has control.” (“The 
Appraisal Journal,” Supra) .

If, as a matter of fact, as we proposed to show in the Dis­
trict Court, the plaintiffs property is reasonably worth at 
least 25% more zoned white residential than it would be



122
worth if the area in which it is located is open to both races 
and therefore classed as a mixed area, the plaintiffs cannot 
support the claim that the zoning law takes their property. 
To the contrary the plaintiffs must be regarded as under­
taking to decrease the value of their property and all other 
residential property in Birmingham. To that extent they 
are taking property values others have accumulated over a 
period of years “without due process of law.”

For approximately fifteen years prior to 1948, the various 
Federal Housing agencies operated on what was considered 
to be a sound business basis and on the long-established 
economic principles of realtors, banks and other home fi­
nance activities. It is therefore considered relevant to this 
case to place before the Court the established policies of 
the Federal Housing agencies—-prior to the recent directives 
of the National Administration, which directives have di­
verted the Federal Housing agencies from their formerly 
sound policies on social and economic factors and turned 
them into vote-getting policies. It will be noted that these 
practices, which prevailed until 1948 are almost identical 
with those of realtors and appraisers indicated above.

Under the heading “PROTECTION FROM AD­
VERSE INFLUENCES,” the Underwriting Manual, FHA 
(1935), Part II, Pages 308-314, lays down this rule.

“The matters to be considered in rating this feature 
are the factors which afford protection to and preserva­
tion of the desirable characteristics of residential neigh­
borhoods. Numerous influences can so change these 
characteristics that the neighborhood will become entire­
ly undesirable for residential purposes. Protection 
against some adverse influences is obtained by the exist­
ence and enforcement of proper zoning regulations and 
appropriate deed restrictions.”

* # *
“Important among adverse influences besides those 

mentioned above are the following: infiltration of in-



123
harmonious racial or nationality groups; infiltration of 
business or commercial development or use; the presence 
of smoke, odors, fog; proximity to noisy or high-speed 
traffic arteries, to railroads, and to nuisances.”

It is to be noted that insofar as adverse influences are 
concerned, the white in a negro district, or a negro in a 
white district, are put in the same class, so far as the effect 
on the district is concerned, as business use, the presence of 
smoke, odors, and nuisances.

“All mortgages on properties in neighborhoods pro­
tected against the occurence or development of unfavor­
able influences, to the extent that such protection is pos­
sible, will obtain a high rating of this feature. The ab­
sence of protective measures will result in a low rating or, 
possibly, in rejection of the case.”

In the April 1939 issue of The Insured Mortgage Port­
folio, published by the FHA, under the heading “Planned 
Protection Essential,” there is the following:

“Neighborhood deterioration and rapid transitions in 
land uses must be particularly guarded against in long­
term residential mortgage lending and insurance. Pro­
tective measures to these ends must be deliberately 
planned, for stable and attractive neighborhoods do not 
just happen. Similarly, sound and orderly city growth 
ensues only as a result of competent city planning, care­
fully conceived and supported by proper zoning regu­
lations and adequate subdivison control.

“The Federal Housing Administration as a mortgage 
insuring agency has sought to minimize its risk in these 
connections by establishing standards which locations 
must meet if properties are to provide eligible security 
for FHA-insured mortgages. These Standards may be 
likened to those health standards of the like insurance 
company which individuals must meet in order to quali­
fy as acceptable risks.



124
“Thus the FHA determines the life expectancy’ of 

residential properties, insofar as their location is concern­
ed, by an analysis of the following:

“1. The relative economic stability of the location in 
which the property is situated.

“2. Protection provided by zoning, and restrictive cov­
enants or natural physical protection against undesirable 
encroachments.

“3. Freedom from flood, earthquake, subsidence, and 
similar hazards.

“4. Adequacy and accessibility of schools, parks, play­
grounds, churches, and shopping centers.

“5. Adequacy and cost of public transportation.
“6. The sufficiency of such utilities as water, sewers, 

electricity, and gas, and such improvements as roads and 
walks.

“7. The level of taxes and special assessments.
“8. The appeal of the neighborhood to possible 

buyers.
“Each of these neighborhood factors is carefully weigh­

ed and rated and the quality of a given location is thus 
determined. Serious deficiencies in any one of these basic 
neighborhood elements will result in rejection of the site 
for mortgage insurance purposes. Fligh qualifications 
with respect to all the factors, on the other hand, gener­
ally assure high-percentage loans.

“A careful analysis of the destructive factors affecting 
the quality of residential areas shows conclusively that 
they can, to a certain extent, be controlled by carefully 
drawn and conscientiously administered planning and 
zoning regulations and restrictive covenants.

“The attitude of the Federal Housing Administration 
with regard to such protection is set forth as follows in 
its manual of instructions to its underwriting staff:

“One of the best artificial means of providing protec­
tion from adverse influences is through the medium of 
appropriate and well drawn zoning ordinances. If the 
provisions of an ordinance have been well worded and 
drawn from a thorough knowledge of existing and prob­
able future conditions in the city, and if the ordinance re­
ceives the backing of public approval, an excellent basis



125
for protection from adverse influences exists.” (Pages 14
and 15).

As indicated above, political pressure has influenced the 
President to order the FHA to disregard the basic principles 
recognized as vital by the business world. We recognize 
that the President may say, contrary to all experience, the 
mingling of racial groups is not an unacceptable risk—just 
as the Kremlin said that Mendel’s finding of inherited char­
acteristics is not true, but the fact that the President or the 
Kremlin says a thing is not true does not keep it from being 
true.

In S. Andil Finebert’s “PUNISHMENT W ITHOUT 
CRIME,” Pages 97-98 (1949), the author points out that 
honest appraisers follow economic laws, saying:

“The Federal Housing Administration in guarantee­
ing mortgages has followed the practice of respecting lo­
cal racial patterns instituted by an earlier government 
agency, the Home Owner’s Loan Corpoartion. The FHA 
Underwriting Manual of 1947 reads: ‘If a neighbor­
hood is to retain stability, it is necessary that properties 
shall continue to be occupied by the same social and ra­
cial classes.’ Valuators are advised in the Manual that 
deeds should include ‘Prohibition of the occupancy of 
properties except by the race for which they are intend­
ed.’ In response to public pressure the Federal Housing 
Administration eliminated these strictures. But the re­
moval of such provisions from the written code does not 
necessarily alter the practices of FHA appraisers, who 
consider the minging of racial groups an unacceptable 
risk.” (PP. 97-98) .

Numerous special city commissions have made surveys 
and reports on social and economic conditions relating to 
racial problems. The conclusions of these commissions have 
been almost identical. An example follows. The Chicago 
Commission on Race Relations reported that:



126
“One of the strongest influences in creating and fos­

tering race antagonism in Chicago is the general belief 
among whites that the presence of Negroes in a neigh­
borhood inevitably and alone depreciates the market 
value of real estate, and this belief is commonly accepted 
as a valid reason for unfriendliness toward Negroes as 
individuals and as a race.” (Page 41) .

Jf. -Hr -S£-TV* 'Jv

“It should be noted that the understandable bitterness 
of feeling on this question of Negro encroachment upon 
white residence districts has been intensified in some 
cases through exploitation, by both white and Negro 
real estate operators, of anti-Negro prejudice and fear 
of loss on account of Negroe occupancy.”

M. M.W  -A* W

“The widespread and deep-seated racial prejudice 
among whites against Negroes, heretofore mentioned as 
a psychological basis for the belief that the presence of 
Negroes is disasterous to property values, is directly re­
flected in the unwillingness of whites to buy property 
close to that occupied by Negroes and in their desire to 
sell, even at a sacrifice, when Negroes move into the im­
mediate neighborhood.” (Page 43).

A fair and able discussion of segregation of white and Ne­
gro races is shown in the Third National Municipal Re­
view, July, 1914, in an article entitled “Segregation of 
White and Negro Races,” by Gilbert T. Stephenson of 
Wake Forest College and Harvard University.

The question is discussed in the following language:

“After all, the more important question about a segre­
gation ordinance is not whether it is constitutional, but 
whether it is just to all parties concerned. If segregation 
is right in principle, then it will probably be possible to 
frame a statute that will conform to constitutional limita­
tions. If, on the other hand, it is not right in principle, 
then the fact that a statute can be drawn to satisfy the 
constitution will not justify its adoption.



127
“The following are some of the considerations that 

have had weight with the various city councils in their 
consideration of these ordinances. Wherever colored 
people enroach upon a white neighborhood, the land 
values in that neighborhood immediately tumble. The 
white people who live on the mixed blocks are, in most 
instances, less thrifty than those living in the all-white 
community and the only danger of race mixture in this 
country lies in the close association of the lower ele­
ments of the two races. This is the conclusion that Ray 
Stannard Baker reached in his ‘Following the Colour 
Line,’ writing from the standpoint of a northern man. 
Dr. Edgar Gardner Murphy reached the same conclusion, 
approaching the subject from the viewpoint of a southern 
man. Ex-President Roosevelt, writing in The Outlook 
of Februrary 21, 1914, of the ‘Negro in Brazil,’ said, ‘. . . 
in the lower ranks intermarriages are frequent, especially 
between the Negroes and the most numerous of the im­
migrant races of Europe. In the middle class these mar­
riages are rare, and in the higher class almost unknown 
so far as concerns men and women in which the black 
strain is at all evident.’ Race feeling between the less 
thrifty white people and the Negroes is much more pro­
nounced than the feeling between the thrifty members of 
the two races. The Negroes who have done violence to 
the persons and property of white people have usually 
belonged to the lowest element of that race, and the white 
people who have taken the law into their hands and com­
mitted murder by lynching have usually belonged to the 
lowest element of the white race. The city councils have 
thought it wise to promote race purity and race harmony 
by separating, in so jar as it is possible to do so by law, 
the lower elements of both races. Voluntary segregation 
has fixed the residences of most of the white people and 
Negroes in different districts. Segregation by legislation 
will, therefore, affect only those who live in the twilight 
zone between the distinctly white and the distinctly col­
ored communities. If the city council, by laying down a 
a definite way of determining the color of a block, can let 
the people know which are thereafter to be white blocks 
and which colored, they can do a great deal towards clear-



128
ing up this twilight zone and this will, in turn, do much 
to allay race prejudices and promote race harmony.

“The segregation of the races in cities by legislation 
can in no wise be justified if it means the neglect of the 
Negroes. It is well known that the government of nearly 
every city in the country is in the hands of white people 
and that it is they, not the Negroes, who are initiating 
the segregation legislation. The white race can justify 
this latest race distinction only by letting it be a means 
of obliterating discrimination against the weaker race, 
such as have long prevailed in this country and in other 
countries where a weaker and a stronger race have under­
taken to live together on the same soil. Urban segrega­
tion—in most southern cities, at least—is wise for the rea­
sons that have already been given; but the white people, 
having brought about such segregation, must, in justice 
to themselves as well as to the colored people, give the 
latter a fair share of the municipal funds for streets, 
lights, sewers, schools, and other community activities.”

It might be said that the above statements represent the 
opinions and experience of interested agencies. This cer­
tainly does not invalidate them, but in order to emphasize 
the scientific objectivity of the data which show the depre­
ciating effect of negro movement into formerly white resi­
dential areas, the following statements are taken from schol­
arly studies of a private nature.

In Housing for the Machine Age, published by the Rus­
sell Sage Foundation, there is the following (pages 77-78) :

“What is a neighborhood? According to Webster’s New 
International Dictionary, a neighborhood is ‘a district or 
section with reference to the character of its inhabitants.’ 
As is the case, however, with words that, through usage 
in a particular field, become a part of its terminology, 
‘neighborhood’ for appraisal purposes has been defined 
within narrower limits. Thus, one Federal agency in the 
field of housing says :

“Neighborhood is defined as a single area composed 
of locations (that is, individual property sites) separated



129
only by publicly used land, the residential portions of 
which exhibit a degree of homogeneity. In general a 
neighborhood is available for, or improved with, dwell­
ings of more or less similar character, age and quality.’ 
(FHA, Underwriting Manual, Washington, D. C. Gov­

ernment Printing Office, 1938, paragraph 903) .
“The student of the urban scene will observe that a 

neighborhood is a clustering of people in certain districts 
where the inhabitants have a sameness of income level, 
or racial and nationalistic traits, and (to a lesser degree) 
of religious affiliations.”

-ff

“The neighborhood is vitally important. The individ­
ual unit may be good, of good design and construction, 
properly located upon an adequate lot and oriented to the 
sun, but in an unsuitable neighborhood it would be a bad 
investment. The importance of the neighborhood is a 
vital question in city planning. The stabilization of the 
neighborhood through planning has the effect of stabiliz­
ing the individual home.

“Permanence and stability are most essential in main­
taining good homes.

“From this we may generalize that, in the city that 
houses a large percentage of people of foreign birth, or 
their children, or that contains a substantial minority 
percentage of people of races other than white, residential 
real estate values in the older districts bordering those 
at present inhabited by the minority peoples will exist 
in a state of threatened status quo.

“The racial and ethical traits of city population are 
an important phase of valuation study. The well equip­
ped appraisal laboratory will contain a map of the city 
showing the location of these groups, and tracing the his­
tory and direction of their movement.”
One of the most scholarly studies which has been made 

on city land values is Homer Hoyt’s “ONE HUNDRED 
YEARS OF LAND VALUES IN CHICAGO,” from which 
the following data is taken (pages 313-316) :

“Meanwhile, a great influx of colored workers from 
the South, beginning during the World War, had burst



130
the barrier that confined their race west of State Street 
and filled that territory to Cottage Grove Avenue on 
the east and Sixty-seventh Street on the south. Another 
segment of colored people penetrated the old area along 
Lake Street as far west as Western Avenue.

“The significance of these racial and national move­
ments upon Chicago land values lies in the fact that cer­
tain racial and national groups, because of their lower 
economic status and their lower standards of living, pay 
less rent themselves and cause a greater physical de­
terioration of property than groups higher in the social 
and economic scale. Because of the instability of the ten­
ants, high collection losses, and the aversion of persons 
higher in the social order to living near these classes, the 
rents received are capitalized at higher rates, so that they 
yield lower capital values than property yielding the 
same net income in the most desirable areas. Land values 
in areas occupied by such classes are therefore inevitably 
low. Part of the attitude reflected in lower land values 
is due entirely to racial prejudice, which may have no 
reasonable basis. Nevertheless, if the entrance of a col­
ored family into a white neighborhood causes a general 
exodus of the white people, such dislikes are reflected in 
property values. Except in the case of negroes and Mexi­
cans, however, these racial and national barriers disap­
pear when the individuals in the foreign nationality 
groups rise in the economic scale or conform to American 
standards of living. Hence, the classification given below 
applies only to members of the races mentioned who are 
living in colonies at standards of living below those to 
which most Americans are accustomed. While the rank­
ing given below may be scientifically wrong from the 
standpoint of inherent racial characteristics, it registers 
an opinion or prejudice that is reflected in land values; 
it is the ranking of races and nationalities with respect to 
their beneficial effect upon land values. Those having 
the most favorable come first in the list and those exer­
cising the most detrimental effect appear last.

1. English, Germans, Scotch, Irish, Scandinavians.
2. North Italians.
3. Bohemians or Czechoslovakians.
4. Poles



131
5. Lithuanians.
6. Greeks.
7. Russian Jews of the lower class.
8. South Italians.
9. Negroes

10. Mexicans.

Dr. Will Alexander of the Rosenwald Fund, an institu­
tion which has done much work to aid the negro, especially 
in the South is quoted in “The Negro Problem,” The 
Dallas Morning News (1944) as follows:

“Dr. Alexander explained that our country has two 
policies toward Negroes. One is education, and great 
strides are being made in that direction in the South as 
well as in the North. The other is segregation. In the 
South this is by law and custom, but social pressure and 
resentment achieve about the same thing in the North.”

In 1944 the Dallas Morning News sent an experienced 
member of its staff, Barry Bishop, on a tour of eastern and 
northern cities to study the race relations problem. He re­
ported on his studies in a series of articles. In respect of 
segregation in the North and East, Mr. Bishop reported:

Chicago
“Non-segregation of Negroes is a ‘phony philosophy in 

Chicago so far,’ one official said.”

Detroit
“In Detroit one hears much talk of the Commies, a pet 

name for Communists; the jogaboos, a derogatory name 
for Negroes, and the hillbillies, a derisive term for the 
thousands of people who have come from the South for 
war work.

“You find strange tongues in Detroit. It is a potpourri 
of nationalities and strains of Americans. But some of 
the Detroiters with foreign roots are among the most 
severe critics of the Negro.”



132
“This tension became so great that the Detroit Hous­

ing Commission adopted a policy on April 29, 1943, not 
to change, in any way, the racial characteristics of any 
neighborhood through occupancy standards of housing 
projects. Negro leaders have fought this policy because 
they contend it is segregation. Some think they have not 
been helpful in doing this, but Negro leaders will not 
waver from their established policy of fighting segrega­
tion in any form and especially in housing projects.”

Pittsburgh
“A leader in the interracial movement, a white man, 

described the sentiment in this manner: ‘There always 
will be segregation in fact until the negro makes the 
white man want to live next to him. While all the laws 
in the land can decree equality, nothing can make the 
white man remain next door to the negro—and he simply 
doesn t want to do it so far as most of our people are 
concerned’.”

“Any impression that we have our arms around the 
Negroes and sleep with them here is erroneous,” one of 
the top civic leaders of Pittsburgh emphatically declared. 
He also pointed out that there is a good bit of segregation 
in residential districts and in other ways.”

Philadelphia
“In Philadelphia you find the same story; no legalized 

segregation and antidiscrimination laws on the books, 
but actually segregation exists in custom and practice to 
a large degree.”

New York
“So, what causes the tension in one of the world’s great­

est cities? One finds by talking to leaders that, aside from 
the evident housing problem, it is the constant fight of 
the Negro for full citizenship. The average southerner 
or southwesterner believe the negro already has it in 
New York, but apparently he is a long way from it, to 
hear Negro leaders talk. There is still the constant and



actual application of segregation against the black man 
even there, they say.”

Cincinnatti
“Negroes live in well-defined areas, largely a result of 

custom but somewhat from force of circumstances. And 
when they start moving into white neighborhoods tension 
rises and the seeds of trouble sprout.”

“Whatever it is, there doesn’t seem to be a complete 
feeling of tolerance between the races. There is one sec­
tion of the central city with a distinctive black belt in 
which, I was told, a lone white person at night would 
almost certain be attacked. There were two incidents in 
recent months of negro houses being stoned after families 
had moved into a former white area. And a seven-day 
strike in one big war plant occurred over the sole issue 
of bringing seven negroes to work in a department form­
erly manned entirely by whites.”

One of the strongest arguments in favor of residential 
segregation is furnished by the negroes themselves. Report­
ed Bishop pointed out in his report of survey of segrega­
tion in the North that in some Northern cities negro citi­
zens invoked the law to enforce segregation.

“One outstanding fact noted in the North, however, is 
that the negroes have not attained the goal of nonsegre­
gation, even among their own people. They talk about 
segregation as forced by the whites but practice it them­
selves. In Chicago negro citizens living in good residen­
tial districts sought court injunctions to prevent housing 
authorities from erecting projects in their areas on the 
grounds the class of N egroes who would live there would 
depreciate their proverty values!”

Let’s examine some of the immediate economic dangers 
to the public which would result from a decision that a 
Negro has a right to live in a white residential district in 
Birmingham. All residential property values are immed-



134
iately lowered from 25% to 40% if it is decreed that the 
Negro may reside anywhere in Birmingham even though 
he never exercises that right.

“Infiltration of incompatible races has always been a 
red flag to the appraiser. . . .  No one thing can so quickly 
depress values as the beginning of a race movement.” 
(The APPRAISAL JOURNAL, January, 1944) .

If it is decreed that the negro may reside anywhere in 
Birmingham, down go property values, because all resi­
dential sections in Birmingham will immediately become 
“mixed” areas, deprived of the protection they have enjoy­
ed under the zoning law, and under established custom for 
more than a quarter of a century. It is little short of calam­
ity for thousands of white and black to have from 25% to 
40% of the value of their homes wiped out over night. 
When no white person knows what minute a Negro and no 
Negro knows what minute a white person may move in 
next door, a state of unrest is created, many are ready to 
sacrifice property, panic grips the people, and the social, 
political, and economic life of the entire city is tremendous­
ly disturbed.

This means much in Birmingham where about thirty- 
eight per cent of the municipal revenue comes from ad va­
lorem taxes, and residential property makes up a large part 
of that thirty-eight per cent. The ad valouem tax rate in 
Birmingham has reached the Constitutional limit. Bir­
mingham’s bonded debt has also reached the constitutional 
limit. The stabilization of property values at a fair and 
reasonable figure is of the highest importance to the mu­
nicipal government and to the property owners.

The City of Birmingham obtains its revenue from ad 
valorem taxes, and other sources, authorized by the Con­
stitution and laws of the State of Alabama.

Ad valorem taxes account for 38% of the City’s revenue.



135
Ad valorem taxes on residential property accounts for a 
very large part of that 38%.

If ad valorem taxes on residential property in Birming­
ham are reduced by 25% by Negro invasion of white areas 
and the destruction of the zoning law, Birmingham must 
immediately suffer from:

(1) Less money for schools.
(2) Less money for health.
(3) Less money for fire and police protection.
(4) Less money for garbage collection.
(5) Less money for every needed municipal function.
Birmingham is already up to the limit. It can levy no

additional taxes until authorized by the legislature. Its 
license schedule is now almost prohibitive and higher than 
any city of its class in the nation. Its financial situation will 
be precarious if property values cannot be maintained by 
its zoning laws.

We were prepared to show in the court below by most 
reliable testimony that fifty negro families well distributed 
in the various white areas in Birmingham would result in 
such a diminution in municipal revenue that a paralysis 
of municipal functions would result. THE DISTRICT 
COURT WOULD NOT LISTEN. This court is entitled 
to a finding of fact on that important matter. We under­
took to show that Birmingham has dealt generously with its 
negro citizens and that there is no occasion for this at­
tempted wreckage of the city’s finances. We submit that on 
an application for an injunction the court was entitled to 
balance the equities and consider the good and the bad 
involved. We submit that the court should have considered 
that thousands of hard working, industrious negroes, who 
are no party to these political maneuvers of a frustrated few, 
will suffer irreparable injury and damage, if they are de­
prived of the benefits of the zoning law, and the services 
they now receive from the City, which the taxes on resi­
dential property makes possible. We submit that the court



136
should consider the inconvenience that both white and 
black will have to put up with when the City loses the reve­
nue it will lose when residential property values are lower­
ed as a result of the City of Birmingham becoming a mixed 
area.

Education in Birmingham needs more than five million 
dollars yearly. Debt service calls for a million and a half. 
The fire department requires one million two hundred 
thousand dollars. The police department about the same 
figure. Health and sanitary nearly a million. All of these 
necessary services will be practically paralyzed if the four 
and one-half million dollars the City realizes from ad va­
lorem taxes is greatly diminished. The court need go no 
further than to study the defendants Exhibit 17 offered 
for identification in order to be convinced beyond a rea­
sonable doubt and to a moral certainty that the City of Bir­
mingham cannot operate efficiently without the ad valorem 
taxes it now receives on residential property in Birming­
ham.

The widespread belief that most people gain from resi­
dential segregation is recognized by white and negro writers 
alike. Whether such belief is well founded or not is beside 
the question. It determines the action of a great majority 
of the American people. The poet had something to say 
about man being convinced against his will being of the 
same opinion still.

“A large segment of the population believes that it 
gains from residential segregation. For the majority of 
northern urban dwellers, spatial separation of Negroes 
and whites has become a symbol of protection against 
Negro neighbors.”
The Negro Ghetto, Page 272.
The same author emphasizes the importance of that be­

lief at Page 279 in the following language:
“There is no aspect of housing and of minority groups 

more important and also confused than the relationship



137
between racial occupancy and property values. The most 
respectable and frequently quoted justification for resi­
dential segregation is the assertion that colored people 
depress real estate values. Whether this is valid in fact or 
not, its acceptance by a large segment of American people 
is important.”

Summed up, equitable residential segregation (1) Stab­
ilizes the use and value of residential property in Birming­
ham, (2) Makes Negro and white residential property in 
Birmingham more valuable, (3) Attracts and assures a 
permanent citizenship, (4) Fosters pride and attachment 
to the Ctiy.

PROPOSITION VI. 
a.

Equitable residential segregation is the most practi­
cable solution of the serious problems confronting all 
citizens.

While we do not mean to assert that all of the social engi­
neers in this country agree that residential segregation is 
the solution of the race question, we do mean to say that 
many people are of that opinion, and that had we been per­
mitted to do so, we would have established beyond a reason­
able doubt and to a moral certainty, that it is the most prac­
ticable method available to the city to avert a race war.

If it can be demonstrated that residential segregation 
is one method of averting a race war, the legislative body 
of the city was at liberty to use that method, even though 
the court might be of the opinion that it was not the best 
mehod.

The lamp of experience is invaluable when we are look­
ing for light on this problem. “By their fruits ye shall 
know them” is as true today as it was when uttered by the 
Master two thousand years ago. Jesus never uttered a doc­
trine that was true at the time and then became obsolete.



138
We have sought in vain for evidence that residential seg­

regation germinates discontent, results in riots, produces 
ill feeling, or works a hardship on any one. While an un­
fortunate type of Negro and a like type of white person 
may assert the contrary, the number in both races is 
negligible, and the idea is based on imagination instead of 
on facts.

On the other hand evidence of the appalling conse­
quences of efforts to break down the color line is abundant.

Detroit’s 1943 riot cost 34 dead, 340 badly injured, two 
million dollars property loss.

Survey Graphic, Volume 36.
On November 11, 1949, according to the Associated 

Press thirty police squads stood watch at two south side 
residences in Chicago after a racial disturbance. The build­
ings were several miles apart. A crowd of one thousand per­
sons gathered in front of a two flat building at 5642 South 
Peoria Street as a result of a false rumor that Negroes were 
moving into the house. Ten persons were jailed.

The fruits of efforts to destroy residential segregation are 
ill feeling, violence, riots, bloodshed, and depreciated 
property values.

Practically every effort to relax or destroy segregation in 
any form in this country has encountered determined op­
position on the part of the white race.

The following are fair illustrations:

CONSTITUTION HALL CONTROVERSY 
Washington, D. C.

“The fight waged periodically since 1939 against the 
Daughters of the American Revolution for refusing to 
permit certain Negro artists to appear in recital at Con­
stitution Hall in Washington, D. C., flared again in 1946. 
The hall is owned and operated by the DAR under tax- 
exempt and other privileges granted by Congress. The 
cause of the 1939 protest was the refusal of the DAR to



139
grant to Marian Anderson, noted Negro contralto, use 
of the hall for a recital.”

The Negro Handbook, 1949, page 73.

CONSTITUTION HALL
“The next cause celebre concerning Constitution Hall 

was the refusal of its management to permit Hazel Scott, 
noted pianist and wife of Congressman Adam Clayton 
Powell, Jr., of New York, to appear there in concert dur­
ing 1945. (See details in the Negro Handbook, 1946-47, 
page 61). At this time the DAR announced that it was 
abiding by a regulation adopted by the national board in 
1932, granting rental of the hall to white artists only.” 

The Negro Handbook, 1949, page 73.

NATIONAL THEATER, WASHINGTON
“Coupled with the fight against the Lisner Auditorium 

a campaign was launched to break down the color bar of 
the National Theater, Washington’s only commercial 
legitimate playhouse. This theater permitted Negroes to 
act in performances on the stage, but refused to admit 
them to the audiences. For many years Negroes had pe­
riodically protested against its racial policy.”

The Negro Handbook, 1949, page 71.

FERNWOOD PROJECT RIOT, CHICAGO, ILL.
“When Negroes were admitted to the Fernwood Park 

Housing Project in Chicago in August, 1947, another 
race riot was begun by white persons in the area. At least 
1,000 policemen had to be sent to guard the Negroes and 
quell the disturbance, when a mob estimated at 2,000 
whites stormed the project, four policemen were in­
jured.”

The Negro Handbook, 1949, page 190, 191.

“On December 6, when two other Negro veterans were 
scheduled to move into the project, whites stormed the 
project. A crowd estimated at 1,800 surrounded the place 
and fought the police, who wielded their night sticks



140
against the mob, many of whom were women.”

The Negro Handbook, 1949. Page 190.
Airport Homes Riot, Chicago, III.

“In November, 1946, a mob of approximately 200 
white persons attempted to storm the Airport Homes, a 
federally-owned housing project in Chicago in an effort 
to keep a Negro veteran from moving in with him fam­
ily.”

The Negro Handbook, 1949, page 190.

GARY SCHOOL STRIKE
“In September, 1945, about one thousand white stu­

dents of three high schools in Gary, Ind., went on strike 
against the attendance of Negroes at the schools.

“When the 1947 school term began in September, 
1947, however, about 1,300 of the 1,750 white students 
of the Emerson School where 38 negroes had enrolled, 
remained away from their classes in protest against the 
city’s new non-segregated policy.”

The Negro Handbook, 1949, page 133.

LOS ANGELES SCHOOL STRIKE
“On Monday, March 17, 1947, about 300 of the ap­

proximately 3,000 students of the John G. Gremont High 
School in Los Angeles, California, remained out of their 
classes and participated in a demonstration against Negro 
pupils in attendance. They congregated shortly before 
the opening of school, shouted anti-negro epithets and 
hung Negroes in effigy.

The Negro Handbook, 1949, page 134.

UPSALA COLLEGE SORORITY
“In March, 1947, Naomi Sylvia Charner, white, vice- 

president of the Phi Omega Chi Sorority at Upsala Col­
lege in East Orange, N. J., submitted her resignation 
after the sorority’s refusal to admit Bernice Petty, a Ne­
gro, of Summit, N. J. Miss Charner, a senior, had joined 
the soroity several years previously with the intent, she 
said, ‘of liberalizing’ its policy to include Negroes. She



141
resigned after the vote of 5 to 4 barred admittance of 
Miss Petty.”

The Negro Handbook, 1949, Page 135.

FORT LEAVENWORTH RIOT
“In May, 1947, one prisoner was killed and six injured 

in a race riot in the military disciplinary barracks at Fort 
Leavenworth, Kansas. The prisoners fought all night 
and were subdued by tear gas. A fight between one or 
two white men and a Negro in a shower room was re­
ported to have precipitated the riot. Reports also stated 
that white prisoners protested against having Negroes eat 
in the dining hall with them.”

The Negro Handbook, 1949, page 109.

ATHENS, ALABAMA, RIOT
“On August 10, 1946, a fist fight between two white 

war veterans and a Negro touched off a race riot in which 
between 50 and 100 negroes were reported to have been 
injured, none fatally. A mob estimated at between 1,800 
and 2,500 participated in the clash.”

The Negro Handbook, 1949, page 109.

GEORGIA HOUSE BOMBINGS
“Beginning in May, 1947, a series of attacks were 

launched against homes into which Negroes had moved 
in a formerly all-white vicinity in Atlanta, Georgia. The 
first attempt to bomb a house in the area was thwarted 
by police, who, having been forwarned of the violence, 
were sent to guard the house. ‘The following week a 
bomb placed between two houses on Ashby Street, ex­
ploded and blew out two dozen windows of the two 
houses and damaged the porch of one. In July another 
house in the area was bombed and damaged.

“The bombings quieted down until early winter when 
several more homes of negroes were bombed or set afire. 
The persons guilty were not apprehended.”

The Negro Handbook, 1949, page 191.



142
RIOTS

Columbia, Tennessee, Riot
“The largest racial clash in the country during the past 

three years occurred on February 26, 1946, at Columbia, 
Tennessee, 42 miles from Nashville.”

The Negro Handbook, 1949, page 108.

MARRIAGE CASES 
Harrisburg, Pa. Case

“Sgt. Percell McKamey was refused a marriage license 
to wed Ingeborg Franke, a German woman, by a clerk at 
the marriage license bureau in Harrisburg, Pa., in Jan­
uary, 1948. The War Department had brought Miss 
Franke from Germany to Harrisburg at the sergeant’s re­
quest so that the couple could marry. . . . The Clerk’s 
action in refusing the license had been upheld by the 
registrar of wills who stated that it was not the practice 
of the bureau to issue marriage licenses to Negro-white 
couples.”

McAlester (Okla.) Case
“Ted Sesney, white farmer, married Miss Josie Doug­

las in Nowata County in the northwestern part of Okla­
homa in 1945. He was later sentenced to a year in prison 
in McAlester, Oklahoma, for having violated the state 
law which makes it a felony for Negroes to marry white 
persons in the state. After completing his prison term 
he and his wife were banished from the state.”

Yuma (Ariz.) Case
“Mr. and Mrs. Allen Beadford Monks were married 

in Yuma, Arizona, in 1930. Mr. Monks, white, died in 
1937, while living in San Diego, California, and his wid­
ow sued to establish rights to a share in his estate in 
Arizona.

An Arizona court decided that she was one-eighth ne­
gro and therefore could not claim shares in the estate as 
his widow, since a state law forbids interracial marriages.



143
New Orleans, La. Case

“About 1920, Azealia Barthelmy was married to Tony 
Rice (of Italian descent) in New Orleans. She bore him 
seven children. Mr. Rice reputedly deserted her in 1931. 
In October, 1946, Mrs. Helen Ryan, white, purchased 
from Mr. Rice the house in which Mrs. Rice and her 
children lived, and ordered the family dispossessed.

Mrs. Rice filed suit in an effort to void the sale on the 
grounds that the property had been recorded in her name 
along with that of her husband, and she had not signed 
any papers conveying it to Mrs. Ryan.

Mrs. Ryan’s reply to the suit was that Mrs. Rice be­
cause interracial marriages are not permitted by state 
law. . . . The 24th Judicial District Court in New Or­
leans declared, in March, 1947, that the marriage was 
null and void under Louisiana law and ordered Mrs. 
Rice to vacate the property.

The verdict was appealed, and the appellate court up­
held the lower court’s decision.”

The Negro Handbook, 1949, pages 76, 77.

b.
The nature of race conflict is important in any con­

sideration of the problem of race conflict.
In “The Nature of Human Nature,” by Faris. (McGraw 

Hill Book Co.), pages 340, 341, we find some enlightening 
references to the unchangeable nature of racial conflict.

“Race conflict is quite different from national and 
from religious conflict. While nations fight over nations 
for something that is done, or threatened to be done, and 
while religions strive with other religions for what they 
believe and say, there is, in the case of the religions and 
of the nations, the possibility of change. But racial con­
flict is founded not on what people do or think or believe, 
but on what they are, and what they are cannot be chang­
ed. The basis of the classification is assumed to be bio­
logical and, therefore, immutable.



144
It is quite proper to urge that some races are so called 

without any warrant in anthropology or biology for the 
designation. While this may be exactly true it makes no 
difference whatever in the nature of racial conflict. From 
the standpoint of sociology a race is not one which is 
anthropologically different or biologically demonstrated. 
Racial conflict is, therefore, the most enduring of all. 
The outcome may be the submission of one or a state of 
accommodation or the amalgamation by intermarriage 
until there is a blending of the two races.”

Racial purity is a gift of God, but it is a gift which man 
can destroy. Once destroyed redemption is impossible. If 
God gave the Negro the right to social equality and inter­
marriage with whites, then He gave to the black man the 
right to destroy both races. If God gave the white man the 
right to social equality and intermarriage with Negroes, 
then he gave the white man the right to destroy both races.

If the Constitution of the United States gives to white 
and black the right to social equality and intermarriage 
with those of a different color, or if it is construed to arm 
them with a right to do those things which inevitably lead 
to social equality and intermarriage with those of a differ­
ent color, then it must be construed as arming the white 
man with a right to destroy the Negro race and arming the 
Negro with a right to destroy the white race.

If the “brotherhood of man” doctrine, and the “father­
hood of God” doctrine are lifted out of their spiritual realm 
and misapplied to the physical kingdom, they produce the 
same result.

It is more in keeping with the revealed will of God that 
each race remain true to itself and develop to the highest 
status of which it is capable.

Professor Fairchild points out how deeply imbeded is 
the notion of race.

“Whether understood or misunderstood, correctly de­
fined or not defined at all, used for good or for ill, re-



145
garded as the most important nothing in life or sniffed 
at as a mere triviality, the notion of race is almost as old 
as humanity, has influenced men’s thinking and be­
havior in a myriad ways, and cannot be summarily tossed 
onto the junk heap. Something about which whole li­
braries of books have been written, by authors ranging all 
the way from hysterical and ignorant sentimentalists to 
scholars of the highest scientific rank, cannot be disposed 
of by a flick of the finger like a speck of dust on one’s 
tuxedo jacket. Men have for ages thought, talked, felt, 
argued, and fought about something they called race, 
without making any effort to define it, and they are 
not going to accept readily the offhand professed scien­
tists with no matter how long a string of academic initials 
appended to their names.” Page 9.

c.

The City of Birmingham has a right to preserve racial
integrity in the public interest.

The fallacious claim of the NAACP that any restriction 
on the right of a negro to marry a white person, or vice 
versa, is “an inadmissible infringement of civil rights,” com­
pletely ignores a basic and fundamental concept of constitu­
tional law, which is, that restraints on some aspects of lib­
erty are indispensible to the preservation of other phases of 
liberty. It is fallacious in assuming a right in a black to 
marry a white when no such right ever existed.

The attempt to safeguard the more important ingred­
ients of individual liberty is an attempt which can only be 
achieved by rather far reaching and well thought out leg­
islative measures.

The United States Supreme Court has clearly recognized 
that a restriction on one form of liberty may be justified 
on the very ground that it removed an impediment to 
another liberty. Holden v. Hardy, 169 U. S. a66; Texas 
and N. O. R. R. v. Brotherhood of Railway & Steamship 
Parish, 300 U. S. 379; Miller v. Schoene, 276 U. S. 272.



146
It is only with the help of the legislature that most people 

can be given any real liberty. Constitutional rights, while 
they may stand guard in a way over individual liberty, 
are inadequate to safeguard it in those more vital aspects. 
If there is to be a restoration of liberty to a great majority 
of people and the liberty of the majority to the pursuit of 
happiness is to be preserved, it is obvious that some curtail­
ment of the liberty of a few individuals must be tolerated.

W. T. Couch, publisher Chicago University Press, in 
his introduction to “What The Negro Wants,” convinc­
ingly exposes the fallacy in the claim of a right to destroy 
the white race. We quote the following by Mr. Couch 
without single spacing it.

“Does the white man have no right to attempt to separate 
cultural from biological integration, and help the Negro 
achieve the first and deny him the second Can biological 
integration be regarded as a right? What happens to the 
case for the Negro if it is tied up with things to which he 
not only has no right, but which, if granted, would destroy 
all rights? If any two people have a right to lead their own 
lives certainly any two others or ten or twenty million have 
a right to opinions on what ought to be allowed and what 
forbidden. To say that the twenty million have no right 
to make and enforce decisions that they think necessary 
to the well-being of all is to say that society has no right 
to govern itself. The assumption of a better, a more valid 
authority, one that can be undestood and that ought to be 
accepted by all rational beings, one that speaks with the 
voice of reason and justice, is the only foundation for ap­
peals against majority decisions. To say that two may be 
right and twenty million wrong is to say that there is a 
more valid authority, that it is the only trustworthy guide, 
and that all men ought to act in accord with it. But the 
spokesmen for minorities have followed the fashion of the 
times and denied the existence of any such authority. In 
doing so they have destroyed the only possible basis for



147
their arguments, and have abandoned their only oppor­
tunity to help create understanding where confusion now 
exists.

“What problem would be solved if the white South 
dropped all barriers and accepted amalgamations? Would 
anything be gained if overnight the whole population could 
be made one color? One of mans’ great problems in this 
world is to learn what is good, to learn to recognize the 
good in whatever form, under whatever circumstances, it 
may appear. Some day the social engineers may be able to 
make all men alike, indistinguishable from one another, 
and equally good. But until that has been done, men need 
most of all to learn to recognize and use good qualities 
whether they belong to tall or short, round or long skulled, 
colored or white. Booker Washington came nearer than 
anyone else to stating the problem of the Negro in its true 
terms. Envy, jealousy among his own people seriously 
hampered his efforts, curbed his program. Nothing is more 
needed in the South today than rebirth of his ideas, res­
toration of the great leadership that he was giving.

“I believe that regardless of the Negro’s abilities the same 
justice that is good for the white man is good for the Ne­
gro. But this justice does not, cannot operate on the basis 
of a mechanical equality. To be just, distinctions and dis­
criminations have to be made. If the distinctions and dis­
criminations are made in directions that some people say 
are wrong—who can take such charges seriously in a world 
that denies the existence of any real right and wrong? I can 
and do, because I believe standards of right and wrong are 
necessary to civilization. Until the modern intellectual 
abandons his relativistic dogmas, he cannot criticize without 
expecting to be reminded that, according to his own doc­
trines, his opinion is merely his opinion and has no real 
validity. If he can quote ‘authorities,’ if something that 
calls itself ‘science’ supports his views, if the assertion of 
opposed views is not intellectually respectable, what of it?



148
What kind of ‘science’ is it that has to support itself in this 
manner?”

In an article entitled “Liberty—A Path to Iits Recovery,” 
by F. A. Harper, the writer points out:

“The only way to be totally ‘non-discriminating’ in as­
sociation with persons would be to share one’s time and love 
equally among all persons on earth. As far as the time ele­
ment of this plan is concerned, an average lifetime would 
allow a little less than one-half second of one’s time for 
each person.” Pages 22-23.

In pointing out that under certain circumstances man 
is legally forced to discriminate and that Negro insistence 
upon invading white residential sections is an infringement 
of the liberty of the white man to live among his kind, Mr. 
Harper said:

“Every voluntary association is a two-way deal, willing­
ly accepted by both parties in the same manner as the free 
exchange of goods in the market place. The insistence of 
one person that another associate with him against the 
other’s wishes is a violation of the other’s liberty, in the 
same manner as forcing one to sell at a given price in the 
market place violates his liberty in that realm. In some of 
its more intimate forms, violating liberty of association is 
judged to be a criminal offense; but in other realms one is 
forced by law to violate his preferences as defined under 
liberty and freedom of choice—he is legally forced to ‘dis­
criminate’.” Page 24.

“Selection of associates is, to be sure, ‘discrimination.’ 
But if that right under liberty is to be judged improper or 
illegal, we shall have to make some drastic changes in our 
concepts about the propriety of monogamy, about the wis­
dom of several of the Commandments, and about other im­
portant concepts of morals an djustices in human society.”

In emphasizing the importance of having rules of the 
game which apply to situations of conflicting desires, Mr. 
Harper very forcibly points out:



149
“The only possible way to preserve liberty in physical 

relationships is to have acceptance o£ rules of the game such 
that situations of possible overlapping or conflicting de­
sires are resolved in advance. What is needed is to have 
‘rules for a ball game,’ such as those discussed in later sec­
tions, accepted by the players in advance. Acceptance of 
necessary and workable rules of the game prevents it from 
developing into mayhem. There is no other way by which 
the game of human relationship can be played without 
destroying the liberty of someone.” Page 25.

We respectfully submit that the public interest is better 
served by the members of both races understanding that 
there is a limitation of their right to use property for spe­
cified purposes. That the right to make their home in this 
favored land of ours does not necessarily carry with it the 
right to make their home in a community where such ac­
tion would result in irreparable injury and damage to the 
public. If a situation of that kind will likely arise and ma­
terially affect the racial integrity of both races it would 
seem to us to be idle to argue that the governing body of 
a municipality could go to great length to prevent it.

PROPOSITION VII

The use of real property may be regulated under the
police power.
The Legislature of Alabama has expressly conferred up­

on the City of Birmingham specifically authority to pro­
vide for the safety, preserve the health, promote the pros­
perity, improve the morals, orders, comforts and conven­
iences of the inhabitants of Birmingham and to prevent 
conflict and ill feeling between the races in such cities. 
Acts 1915, Page 294, Section 6.

The Legislature has exressly conferred on Birmingham 
the authority to regulate the use of buildings for trade, in­
dustry, residence and other purposes by a nondisci imina-



150
tory zoning law. Alabama Code 1940, Title 62, Section 
710, et seq:

Having express statutory authority for its action the City 
has undertaken to prevent a use of property that would re­
sult in a race war, and depressed property values.

The District Judge seemed to have been of the opinion 
that race or color could not be made the basis of a regula­
tion respecting the use of property.

We respectfully submit that any such contention entirely 
ignores the character of the right the plaintiffs in the lower 
court ask that court to protect. As we have pointed out, 
they sought protection for a right that is not absolute and 
exempt from regulation under the police power. Residen­
tial segregation is a form of legislation which protects by 
restrictions. The idea is well expressed in Negro Hous­
ing at Page 218 in the following language:

“So men still argue that every man’s house is his castle, 
and that property rights give entire control of everything 
within the boundaries of any plot of land down through 
to China and up to the sky. Most men, however, have 
been convinced by common sense and experience that 
many individual preferences must be surrendered for the 
common good. Four thousand years ago Confusius, the 
wise man of Shantung, said: ‘The value of thy house de- 
pendeth on thy neighbor.’ Problems of ‘health, safety, 
morals and general welfare’ make the old adage apply 
with great force to every piece of property in a city 
where overcrowded streets, land and houses compel the 
observance of laws which restrict, but at the same time 
give protection.’
Zoning Regulations may result to some extent, practically 

in taking the property . . . and yet not be deemed confisca­
tory or unreasonable.

State v. Hillman, 110 Conn. 92-105, 157 Atl. 294.

“It is natural that with so great an increase of the use 
of the police power of the state in regulating ‘health



151
safety, morals and general welfare,’ discussion should 
arise as to the segregation of the races through the same 
agency.”

Negro Housing, Page 221.
“Whether a zoning ordinance is reasonable and is sub­

stantially related to the health, safety, morals and general 
welfare of a community, depends on the facts in each 
particular case. For instance, zoning ordinances, under 
certain conditions, may nullify private covenants that 
were more stringent, and authorize the construction of 
multiple-family dwellings in a particular area and simul­
taneously abrogate private convenants which restrict the 
area to single-family dwellings.”
Taylor v. Hackensack, 137 N. J. L. 139, 58 A. (2d) 788 

(1948), Affd. 62 A (2d) 686.

“If there was evidence upon which the city authorities 
could have found that the ordinance was necessary in 
consideration of the public health, safety, comfort or gen­
eral welfare, it is beyond the province of the court to say 
that it is unreasonable, arbitrary or confiscatory, even 
though it may depreciate in value business property or 
restrict the liberty of citizens, in regard to ownership and 
use of property.”
Cassee Realty Co. v. Omaha, 144 Neb. 753, 14 NW (2d)

600.

Section 1311 of the Federal Housing Administration 
Underwriting Manual, January, 1947, provides in part:

“Appropriate and well-drawn zoning ordinances may 
provide one of the best means for protecting residential 
locations from adverse influence that diminish the de­
sirability of sites and increase risk in mortgage transac­
tions. If the provisions of an ordinance have been well- 
worded and drawn from knowledge of existent and prob­
ably future conditions in the city, and if the ordinance 
receives the backing of public approval, an excellent basis 
for protection from adverse influence exists.”

In Cantwell v. Connecticut, 310 U. S. page 308, the Su­
preme Court of the United States said:



152
“No one would have the hardihood to suggest that the 

principle of freedom of speech sanctions incitement to 
riot or that religious liberty connotes the privilege to 
extort others to physical attack upon those belonging to 
another sect. When clear and present danger of riot, dis­
order, interference with traffic upon the public streets, 
or other immediate threat to public safety, peace, or 
order, appears, the power of the State to prevent or pun­
ish is obvious

The only limitation on the power of the State to prevent 
or punish we are familiar with is the rule that the regula­
tion must not unduly infringe on a protected freedom.

Cantrell v. Connecticut, Supra.

A well known writer on the police power calls it the law 
of overruling necessity and he adds:

“The law of necessity has been stated to be an excep­
tion to all human ordinances and constitutions, yet has 
been frequently decided to be subject to the law of 
reason and subject to the control of the courts. It would 
be more accurate to say that the entire doctrine of the 
police power of the States is the creation of the courts 
evolved from the necessity of harmonizing provisions of 
written constitution of states and nation with the impera­
tive needs of civilized society. . . . The prohibition of a 
constitution must be held to extend the acts even if not 
within the literal terms of the constitution . . . and on the 
other hand such prohibition must not be held to extend 
the acts which, while within the literal terms of a con­
stitutional prohibition could not have been intended by 
the people to be prohibited to legislative competence be­
cause of the obvious injury to public interest which 
would result from such prohibition.”

Harvard Law Review, Volume 27, Pages 297-298.

In speaking of the validity of zoning laws and the exer­
cise of the police power we find the following in 58 Am.



153
Jur., page 947, Section 14, supported by the authorities 
there cited:

“There is no fundamental objection to zoning laws and 
ordinances so long as they apply without unnecessary dis­
crimination and are reasonable in their scope and oper­
ation; within these limits they are a justifiable exercise of 
the police power and are not open to objection upon 
the ground of privileges and immunities of citizens, inter­
ference with vested rights, or the taking of property with­
out due process of law.”

Again at Page 957, Section 27, we read:
“Zoning ordinances are ordinarily enacted to adopt a 

comprehensive plan for a municipality and bring about 
an orderly development thereof.”

And in Section 28 at Page 958 it is stated:
“Zoning regulations are sometimes adopted for the 

purpose of promoting the prosperity of the community, 
or for the conservation of land values throughout the 
municipality, and there is authority to the effect that 
the protection of the value and usefulness of urban land, 
or, in general, the promotion of the community pros­
perity, is a matter relating to the general welfare, and is 
within the police power.”

At Page 961, Section 33, it is said:
“Zoning laws generally authorize or provide for the 

division of municipalities into business, residential, and 
unrestricted districts. Business zones may be classified 
for different classes of business into local business, com­
mercial, commercial and light manufacturing, and indus­
trial districts. Industrial zones are sometimes subclassi­
fied into heavy and light industrial. Residential districts 
also are sometimes subclassified.”
Nectow v. City of Cambridge, 277 U. S. 183, 72 L. ed. 

842, 48 S. Ct. 447.

In the Nectow case it is interesting to note that the un­
constitutionality of the ordinances as applied to the plain­
tiff turned on a finding of fact made in the court below 
to the effect that the health, safety, convenience and gen­
eral welfare of the inhabitants of part of the city affected



154
would not be promoted by the disposition made by the 
ordinance of the locus in question.

In this case the finding by the City Commission is to 
the effect that not only the interest of the inhabitants of 
the part of the city effected by the attempted negro invasion 
would be promoted, but that the general welfare of the 
entire City is promoted by the zoning ordinance under at­
tack.

The idea that the use one may make of his property is a 
subject of regulation—not an absolute liberty—is well ex­
pressed by the Supreme Court of Wisconsin in the follow­
ing language:

“Although one owns property, he may not do with it 
as he pleases, any more than he may act in accordance 
with his personal desires. As the interest of society jus­
tifies restraints upon individual conduct, so, also, does it 
justify restraints upon the use to which property may be 
devoted.”
State ex rel Carter vs. Harper, 182 Wis. 148, 196 N. W. 
451, 33 A. L. R. 269.

The writer of the opinion in the case cited very pertin­
ently points out that—

“The rights of property should not be sacrificed to the 
pleasure of an ultraesthetic taste. But whether they 
should be permitted to plague the average or dominant 
human sensibilities well may be pondered.”

The Supreme Court of the United States recognizes that 
the right to contract is a liberty protected by the Fourteenth 
Amendment, but says that court, law may restrict that lib­
erty in many respects.

Mr. Justice Brewer speaking for the Court, said:
“It is undoubtedly true, as more than once declared by 

this Court, that the general right to contract in relation 
to one’s business is a part of the liberty of the individual,



155
protected by the Fourteenth Amendment to the Federal 
Constitution; yet it is equally well settled that this lib­
erty is not absolute and extending to all contracts, and 
that a state may, without conflicting with the provisions 
of the Fourteenth Amendment, restrict in many respects 
the individual power of contract.”

Muller vs. Oregon, 208 U. S. 412, 420, 52 L. Ed. 551, 28 
Sup. Ct. 324, 326.

In Jacobson vs. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 
358, 49 L. Ed. 643, 3 Ann. Cases 765, the Supreme Court 
of the United States carefully pointed out that the liberty 
secured by the Constitution of the United States does not 
import an absolute right in each person to be, at all times 
and in all circumstances wholly freed from restraint, and 
in upholding the Massachusetts vaccination law, the court 
said:

“But the liberty secured by the Constitution of the 
United States to every person within its jurisdiction does 
not import an absolute right in each person to be, at all 
times and in all circumstances, wholly freed from re­
straint. * * * ‘Even liberty itself, the greatest of all rights, 
is not unrestricted license to act according to one’s own 
will. It is only freedom from restraint under conditions 
essential to the equal enjoyment of the same right by 
others. It is then liberty regulated by law.”

In Buck vs. Bell, 274 U. S. 200, 71 L. Ed. 1000; 47 Sup. 
Ct. 584, the Supreme Court of the United States upheld 
the Virginia sterilization law, and Carrie Buck was sterilized 
because the court found that she was the probable potential 
parent of socially inadequate offspring, and that her welfare 
and that of society would be promoted by her sterilization.

Mr. Justice Holmes, writing for the court, said:

“We have seen more than once that the public welfare 
may call upon the best citizens for their lives. It would



156
seem strange if it could not call upon those who already 
sap the strength of the State for these lesser sacrifices, 
often not felt to be such by those concerned, in order to 
prevent our being swamped with incompetence.”
It would seem that if the state may lawfully cut into a 

human body in the public interest and remove therefrom 
the reproductive organs of an individual, it would have the 
right to cut off the right to occupy property where the ac­
tion ist taken in the public interest.

If the public welfare may call upon a citizen for his life, 
what is there to prevent the same public welfare from call­
ing upon citizens for a much lesser sacrifice—if it be a sacri­
fice, namely, residential segregation, in order to preserve 
the integrity of both races and prevent our being swamped 
with persons of debased blood?

The point of the whole matter is that the rights the plain­
tiffs in the court below sought to protect are not absolute 
rights but rights whose exercise may be regulated by law.

PROPOSITION VIII
a.

The difference between the races furnishes a basis for 
the exercise of the police power in favor of residential seg­
regation.

In a consideration of the constitutional question involved 
in this case it is idle to undertake to debate the question 
of superiority and inferiority vel non. When it comes to 
an exercise of the police power the City is not required to 
reach the conclusion that one race is superior or inferior 
to another. When it comes to sustaining an exercise of the 
police power, the court is not called upon to decide that 
the white race is superior to the black race or vice versa. 
That is a matter about which individuals are free to enter­
tain whatever opinion they see fit to entertain about it. It 
is of no concern to the legislative body of the City or to the



157
court. It has no place in the case and does not enter into it 
in any way. We might as well waste time and we would 
perhaps get just as far in arguing whether a Packard car is 
superior to a Mack Truck. We are on safe ground if we 
recognize that there is a difference between the two and that 
the City would have a perfect right to restrict the speed of 
a heavily loaded truck to twenty miles per hour and at the 
same time impose a sixty mile speed limit on a passenger 
car. There are many differences between the white and the 
black race. There are differences between the two races 
other than the difference in color. Color only serves the 
purpose of identification. Color enables us to recognize 
that a person of a certain color has a certain racial constitu­
tion, background, history, experience, and ambition that 
is entirely different from the racial constitution, back­
ground, history, experience and ambition of people of a 
different color.

In Social and Mental Traits of the Negro (Odum) at 
page 265, it is said:

“The Negro differs from the white not only in devel­
opment, but also in kind. It is a knowledge of this kind 
which is the first essential to a satisfactory discussion of 
the problem.”

In the same work beginning at page 268, the author calls 
attention to some of the oustanding differences between 
a white person and a negro which are listed as follows:

(1) There is in the negro little home consciousness and 
more of the general social consciousness.

(2) The negroes law of social consciousness and control 
does not lead him to develop a love of home and family.

(3) The negro rarely shows lasting friendship and af­
fection.

(4) Freedom from restraint and parental control are 
much desired by young negroes.



158
(5) There is little parental and filial affection among 

negroes.
(6) The average negro has little abiding solicitude for 

the welfare of members of the family.
(7) There is little respect and care among negroes for 

the aged and infirmed.
(8) There are few high ideals of woman, wife and mo­

ther and little thought of individual chasity and of the pur­
ity of the home among negroes.

(9) The negro entertains no defiinte idea of health and 
hygiene and individual responsibility for his own conduct.

(10) The negro looks upon labor as an evil necessity 
and is developing professional ethics of vagrancy.

(11) Negroes exercise little, if any, forethought.
/  j (12) The negro shows little desire to acquire property.

(IB) Crime is not a cause for social ostracism or condem­
nation by negroes.

(14) Education is valued in proportion as it makes the 
individual important in the eyes of his people and it re­
lieves him from physical labor.

(15) The negro woman fails to assist the man in a bit­
ter struggle. She is inefficient and indisposed to be faith­
ful.

(16) The negro woman is a hinderance to the success­
ful saving of money and the industrial development of the 
family.

(17) The negro is not increasing his moral stability.
(18) The weakness of the negro predominates over his 

progressive tendencies.
(19) Crimes committed by negroes are on the increase 

and are out of proportion to his numerical relation to the 
population.

(20) Chiefly his crime is due to the expression of animal 
impulses and his lack of restraint.

(21) His religion has little practical bearing upon his 
conduct.



159
(22) He is constantly engaged in mingling with his fel­

lows at large and is less often at home with his family.
One trouble with treating negroes as social equals is 

that the moment that starts they treat the person who treats 
them as a social equal as a social inferior.

All men may be born equal, but they certainly do not 
develop equally and they do not have equally good man­
ners.

In the preface to Professor Dowds book, “The Negro in 
American Life,” it is said:

“The greatest downward plunges of human society
have come from racial contacts.”

The legislative body of the City of Birmingham was en­
titled to take these marked differences between the two 
races into consideration in working out a regulation to pro­
mote peace and harmony between members of the two races 
in Birmingham. David Livingston once said, God made 
the white man and God made the black man, but the devil 
had made the half-breed.” American Institutions and 
Their Preservations,” Page 402.

No state has yet enacted a law requiring the segrega­
tion of negroes in agriculture districts, but such laws exist 
in South Africa. The separation of the races is held by the 
majority of the European to be the true policy and the 
principle has been accepted by the legislature. “The Negro 
in American Life,” page 473.

The author also points out that the proposal to segregate 
negroes in rural districts of the South has been sanctioned 
by leaders of high standing.

We submit that the true rule was well expressed by the 
Supreme Court of Pennsylvania in West Chester and P. R.
Co. v. Miles, 55 St. 209, where the court said:

/

“The question remaining to be considered is, whether
there is such a difference between the white and black



160
races within this state, resulting from nature, law and 
custom, as makes it a reasonable ground of separation. 
The question is one of difference, not of superiority or 
inferiority.”

With that as a premise the court reasoned the matter out 
and concluded as follows:

“When, therefore, we declare a right to maintain sep­
arate relations, as far as reasonably practicable, but in 
a spirit of kindness and charity, and with due regard to 
equality of rights, it is not prejudice nor caste, nor in­
justice of any kind, but simply to suffer men to follow the 
law of races established by the Creator himself, and not 
to compel them to intermix contrary to their instincts.”

b.
One of the most marked differences between the two 

races appears when the progress made by the white man 
in the science of government is compared with the pro­
gress made by the black race in the same science.

Thomas Jefferson is generally credited with having writ­
ten the Constitution of Liberia more than one hundred 
fifty years ago. We understand there is a provision in the 
Liberian Constitution to the effect that only a negro can 
vote and only a negro can own property in that Republic. 
We think that provision is entirely proper in the constitu­
tion of a negro nation. What do the records show with ref: 
erence to progress in matters of government by the negro?

George Abrahams writing in the International Digest of 
October, 1946, gives a vivid picture of the conditions pre­
vailing in Liberia. The title of the article is “The Land 
Where Monkeys Vote.” In this article the writer said:

“There is a country where monkeys can vote for a 
President. That country is Liberia, a tiny republic situ­
ated on the steaming rain-lashed west African coast.

Strangely, monkeys in Liberia have more political in­
fluence than women. By law, the so-called weaker sex is



161
not allowed to vote. However, any dissatisfied female can 
hurdle this obstacle by letting monkeys do the voting for 
her.

The last Presidential election, May 4, 1943, was one 
of the purest exhibitions of untrammeled political chic­
anery in franchise history. Women led dressed-up 
monkeys to the polls. On the chatterings primates’ fury 
backs were pasted ballots for the Honorable William V. 
S. Tubman. At the polls, the ballots were ripped off and 
cast into the voting box. Thus, Mr. Tubman, who now 
holds the highest office in that land, is perhaps the first 
man ever to become President with the aid of votes cast 
by flea-bitten monkeys.'

Anything goes in Liberia. The stark power politics of 
this American-inspired repubic reek to heaven. The gov­
ernment, while supposedly a replica of the American 
system, teems with creeping forms of legalistic fungus 
which have stunted the growth of the Negro republic 
Uncle Sam has been nursing along for over a century.”
In describing how elections are conducted in Liberia the 

author goes into some detail as follows:

“Mercenary Liberians don’t mind voting. It pays off. 
One native, hired to vote on the Whig ticket, was clocked 
to an official speed record by a white official and was 
found to have voted 162 times in less than two hours! 
One village, Cheesemanburg, which has two small huts, 
and two families, polled 1,200 votes for the Whigs. In 
upper Buchanan, Bassa County, with a voting population 
of 32, over 8,500 ballots were polled for the Whigs.

Near the military area where American Infantry and 
service troops were stationed, one town of 12 native huts 
and a maximum voting population of 40 polled 5,100 
ballots for the Whigs and only seven for the Democrats.

In Kakata, a voting population of not more than 200 
was augmented by 300 more hinterland aborigines not 
legally qualified to vote. They were sent down by Dis­
trict Commissioners and Chiefs who threatened repris­
als if any of their people voted on the Democratic ticket.

That gives some indication of the decadent political 
situation in Liberia. One American soldier remarked,



162
‘It’s a good thing Liberian politics are so screwey and cor­
rupt. We had to have something funny to keep our 
morale up.”

The entire article is well worth reading. The reader will 
likely reach the conclusion that the negro needs an organ­
ization for the protection of colored people against the ad­
vancement of colored people advocated by the NAACP.

c.
Another striking difference between whites and blacks 

is the difference in military value. The limitations of a 
brief will not allow a reproduction of Chapter XXX in 
General Robert Lee Bullard’s book, “Personalities and 
Reminiscenses of the War.” It is to be regretted that the 
General was compelled in frankness and candor to appraise 
the negro division in the following language:

“Altogether my memories of the 92nd Negro Division 
are a nightmare. When all my thought, time, and efforts 
were needed to make war against a powerful enemy, they 
had for a week to be given over entirely to a dangerous, 
irritating race question that had nothing to do with war­
making, the paramount matter of the time. I fear that it 
will always be so with Negroes wherever they are m 
contact with whites. This thought and my experience led 
me to this conclusion: If you need combat soldiers> and 
especially if you need them in a hurry, don’t put your 
time upon Negroes.”
Negro soldiers in World War II were no improvement 

over the negro soldier in World War I. In the Survey 
Graphic at page 111, Volume 36, 1947, in speaking of the 
negro in the armed forces, it is said.

“The Ninety-second Division had a spotty combat rec­
ord in Italy. A study of its performance and of the under­
lying reasons for its shortcomings was made by Truman 
Gibson, able Negro Assistant Secretary of War, who re­
ported the elements in the division had exhibited a ten­
dency on a number of occasions to ‘melt away’ under
fire.”



163
We cite this statement not as a criticism of the negro, but 

as a criticism of calloused politicians who are so disregardful 
of the safety and security of this Nation as that they are 
willing for political purposes to count the negro as a com­
bat asset and place responsibilities upon him that should 
never be placed upon him.

Another basic and fundamental difference between the 
two races is their attitude towards wedlock.

In 1932 figures for the United States as a whole show that 
there were 157.5 illegitimate births for every 1,000 negro 
births as compared with 20.7 for every 1,000 births among 
white people. “A Preface to Racial Understanding,” page 
64, Charles S. Johnson (Negro) Fisk University.

There has been no improvement in this respect in eigh­
teen years.

In Birmingham there are 22.3 illegitimate births to 1,000 
white births and 235.4 illegitimate births to 1,000 negro 
births. The ratio of veneral disease is ten to one in favor 
of the negro.

We are aware that the claim is made in certain circles 
that there is no difference in the blood of the two races. 
We think Professor Fairchild explodes that preposterous 
claim at page 175 in his book where he says:

“When these types were first discovered it appeared 
that they might serve as an additional basis of race identi­
fication. Uater on it was demonstrated that much of the 
types then known can be found in individuals of all 
races, and so there was a tendency to discount entirely 
their race significance. But the fact remains that while 
there is no distinction among individuals of different 
races, yet there are great differences in the proportional 
frequency of the different types in various racial groups. 
And since, as has been so often emphasized in these 
pages, the whole question of race must be approached 
from the standpoint of the average, it becomes clear that 
it is quite accurate to say that there are racial differences 
in blood types. These differences might conceivably take



164
on practical significance in connection with the contem­
plated amalgamation of two or more races.”

PROPOSITION IX
The Court will avoid a construction of the constitu­

tion that will produce conflict, confusion, riots and vio­
lence.

The Constitution of the United States was designed to 
protect life and property, liberty and freedom—not to de­
stroy. It should not be construed so as to bring about a 
situation that will cause people to destroy each other.

In Hirabayashi v. United States, 320 U. S. R., page 104, 
the court said:

“The Constitution as a continuously operating charter 
of government does not demand the impossible or the 
impractical.”

Under the zoning ordinaces of the City of Birmingham 
the City Commission has determined that there is a clear 
and present danger of race riots, loss of life and property 
damage if the zoning ordinances are unenforced. We do 
not contend that the finding of the Commission is conclu­
sive. We do assert that it is prima facie correct and must be 
accepted by the court until it is overturned by a creditable 
evidence. We also submit that the ordinance may be sup­
ported by showing that conditions are even worse now than 
they were when the first zoning ordinance was enacted.

A law may be constitutional at one time and unconstitu­
tional at another; invalid as applied to one set of facts and 
bvalid as applied to another.

California v. Anglim, 129 Fed. (2) 455; Certiorari de­
nied, 317 U. S. 669.

The constitution was not designed to render society im­
potent to protect itself against evils that menace it. It mat-



165
ters not what form an evil might take. By protecting society 
against known evils the individual himself is protected even 
though some phase of his individual liberty may be re­
stricted. Society has never parted with the power to protect 
itself or to promote the general well being of all and if the 
right to occupy property clashes with the right of society 
to be free from race riots the right of society must prevail. 
The police power may be put forth in aid of what is sanc­
tioned by usage, or held by the prevailing morality or 
strong and preponderant opinion to be greatly and imme­
diately necessary to the public welfare.

Noble State Bank v. Haskell, 219 U. S. 104; 55 L. ed.
112; 31 S. Ct. 186: Annotated cases 1912-A-48.

The Constitution of the Uinted States does not require 
the streets of Birmingham to be patrolled by the National 
Guard of the regular army in order to prevent a race riot 
when an equitable zoning ordinance will serve the same 
purpose.

The court will, if possible, give the constitution such con­
struction as will make it reasonable and avoid a construc­
tion which leads to absurdity.

CONCLUSION
The observation of Mr. Justice Traynor in Fairchild vs.

Raines, 24 Cal. (2) 818, 833; 151 Pac. (2) 260, 268, that: \ j jUU4̂

“The problem of race segregation cannot be solved by 
the courts alone, for it involves emotions and convictions 
too deeply embeded in the social outlook of men to be 
uprooted overnight by judicial pronouncement.”

should make a court hesitate before it approves a decree 
that overthrows a custom of more than seventy-five years 
standing, a custom which has crystalized into law and as we 
verily believe into a contract between the two races.



166
As Judge Chesnut so clearly pointed out in Boyer v. Gar­

rett, (MMS), U. S. D. C. Maryland, December 30th, 1949, 
“separation of the races in normal treatment in 17 of the 
48 states,” including Alabama.

Equality of treatment does not require that privileges be 
provided members of the two races in the same place, and 
on the same theory, restrictions on the exercise of a right 
may recognize the normal treatment which has proven 
beneficial to both races.

There is a sharp distinction between the proper exer­
cise of constitutional power on the one hand and what is a 
justifiable policy on the other. A state or municiaplity may 
choose the method by which equity is maintained. Boyer 
v. Garrett, supra.

We respectfully submit that the judgment appealed from 
should be reversed and the cause remanded to the District 
Court.

H orace  C. W ilk in so n

Farley Building, Birmingham, Ala.
Attorney for Appellants

CERTIFICATE

I hereby certify that I have mailed a copy of the fore­
going Brief and Argument to Arthur Shores, attorney for 
the Appellees, properly addressed to his office in the Negro 
Masonic Temple Building, Birmingham, Alabama, postage

prepaid, on this the-------- day of June, 1950.



167

APPENDIX

Sec. 1604. Occupancy in “A-l” and “B-l” residence dis­
tricts.

In “A-l” and “B-l” residence districts, no building or 
part thereof shall be occupied or used by a person of the 
negro race; provided, however, that this section shall not 
be interpreted to prohibit any of the following:

(a) Use or occupancy by a negro servant, chauffeur or 
other employee, when the employer resides in the same 
building or in a building upon the same lot.

(b) Use or occupancy by any person, who, on August 4, 
1926 was the owner of the used or occupied building or of 
the lot upon which such building may be erected, or who at 
said time shall have contracted to purchase the same by a 
valid and enforceable contract of purchase, or by his succes­
sor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence of, in or on the 
building or lot.

(d) Use or occupancy during the period of the tenancy 
or lease by a life tenant, lessee for a term of years or other 
lessee of the used or occupied building or lot, such tenant 
or lessee being of the negro race, or by the successor in title 
of any such lessee by will or descent, in cases in which the 
tenancy or lease was created before August 4, 1926 and is 
unexpired and in force and effect.

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension or renewal of 
any such lease, in cases in which the right of renewal or 
extension was created previous to, and was in force and ef­
fect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (d) at any or all times at 
which both the tenancy, lease, renewal or extension de­
scribed in paragraph (d) and (e) shall be in full force and 
effect, and said person himself resides in or on the building 
or lot.



168
(g) Continuance, after August 4, 1926, of the residen­

tial use of occupancy of a building by persons of the negro 
race, in any case in which such building was used or oc­
cupied for residential purposes by persons of the negro race 
prior to August 4, 1926, or, if such building was vacant at 
said time, then in any case in which the last such use or oc­
cupancy previous to said time was by persons of the negro 
race. (Ord. 1101-C, Sec. 9).

Sec. 1605. Occupancy in “A-2” and “B-2” residential 
districts.

In “A-2” and “B-2” residence districts, no building or 
part thereof shall be occupied or used by a person of the 
white race; provided, however, that this section shall not be 
interpreted to prohibit any of the following:

(a) Use or occupancy by a white servant, chauffeur or 
other employee when the employer resides in the same 
building or in a building upon the same lot.

(b) Use or occupancy by any person who, on August 4, 
1926, was the owner of the used or occupied building or of 
the lot upon which such building may be erected, or who at 
said times shall have contracted to purchase the same by a 
valid and enforceable contract of purchase, or by his suc­
cessor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence in or on the 
building or lot.

(d) Use or occupancy during the period of the tenancy 
or lease, by a life tenant, lessee for a term of years or other 
lessee of the used or occupied building or lot, such tenant 
or lessee being of the white race, or by the successor in title 
of any such lessee by will or descent, in cases in which the 
tenancy or lease was created before August 4, 1926 and was 
unexpired and in force and effect at said time.

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension of renewal 
of any such lease, in cases in which the right of renewal or 
extension was created previous to and was in force and ef­
fect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any



169
person described in paragraph (d), at any and all times 
at which both the tenancy, lease, renewal or extension de­
scribed in paragraph (d) and (e) shall be in full force and 
effect, and said person himself resides in or on the building 
or lot.

(g) Continuance, after August 4, 1926, of the residential 
use or occupancy of a building by persons of the white race, 
in any case in which such building is used or occupied for 
residential purposes by persons of the white race or, if such 
building was vacant at said time, then in any case in which 
the last such use or occupancy previous to said time was 
by persons of the white race. (Ord. 1101 -C, Sec. 10) .

ORDINANCE NO. 709-F

BE IT  ORDAINED By the Commission of the City of 
Birmingham that:

Section 1. The Commission finds as a matter of fact that:
(a) From the date of the original settlement of this City 

unto the present time it has been the invariable custom, 
supported for most of that time by municipal law and uni­
versally observed, to require white and colored residents to 
live in separate residential areas; and

(b) That when attempts have been made by members 
of one race to enter for purposes of a permanent residence 
into an area commonly recognized as set aside for members 
of the other race, violence, disturbances of the peace, de­
struction of property and life has resulted almost without 
exception; and

(c) This Commission further finds from its knowledge 
of present conditions and public sentiment in this City that 
in the event attempts shall now or in the foreseeable future 
be made by members of one race to establish residences in 
areas heretofore regarded as set apart for the residences of 
members of the other race, breaches of the peace, riots, de­
struction of property and life wTill follow; and

(d) That neither the City of Birmingham nor any other 
law enforcement agency is able so completely to police, 
supervise and safeguard the person and property of per­
sons attempting to establish a residence in an area not com­
monly recognized as an area to be occupied by members of



170
the race to which such person belongs, as to prevent injury 
to such persons, members of his family, third parties in the 
area affected, and destruction of property; and

(e) That the Zoning ordinances of the City of Birming­
ham now in effect do substantially and fairly well delineate 
those areas historically and generally regarded as available 
for residences and occupation by members of the white 
and colored races; and

(f) That this ordinance is necessary to preserve the 
peace of said City and to safeguard the property and safety 
of its citizens and of the public in general.

Now, therefore, BE IT  ORDAINED:
Section 2. That it shall be a misdemeanor for a member 

of the white race to move into, for the purpose of establish­
ing a permanent residence, or, having moved into, to con­
tinue to reside in an area in the City of Birmingham gen­
erally and historically recognized at the time as an area for 
occupancy by members of the colored race; and

Section 3. That it shall be a misdemeanor for a member 
of the colored race to move into, for the purpose of estab­
lishing a permanent residence, or having moved into, to 
continue to reside in an area in the City of Birmingham 
generally and historically recognized at the time as an area 
for occupancy by members of the white race.

Section 4. The words “permanent residence” as used 
herein shall be construed as meaning the occupancy of a 
house or tenament for more than twenty-four hours, except 
a house or tenament which is appurtenant to, used in con­
nection with, and a part of the curtilage of another house or 
tenement and occupied by a person who shall be in the 
employ of the person occupying the residence or tenement 
to which it is appurtenant.

Section 5. The moving into for the purpose of establish­
ing a permanent residence shall constitute a separate offense 
from remaining there, and remaining in residence in a for­
bidden area for each twenty-four hour period shall con­
stitute a separate offense.

Section 6. This Ordinance shall take effect immediately, 
the public welfare requiring.



171
STATE OF ALABAMA 
JEFFERSON COUNTY

I, Eunice S. Hewes, City Clerk of the City of Birming­
ham, do hereby certify that the above is a true and correct 
copy of an ordinance duly adopted by the Commission of 
the City of Birmingham at its meeting held August 9, 1949, 
and as same appears of record in Minute Book A-32 of said 
City.

GIVEN UNDER MY HAND AND CORPORATE 
SEAL of the City of Birmingham, this the 3rd day of No­
vember, 1949.

E u n ic e  S. H ew es , City Clerk.