Corrigan v. Buckley Appellants' Points

    Supreme Court of the United States
October Term, 1925.

No. 104.

Irene Hand Corrigan and Helen 
Curtis,

Appellants,

against

John J. Buckley,
Appellee.

APPELLANTS’ POINTS.

The appellee filed a bill in equity in the Supreme Court 
of the District of Columbia in which he sought a perma­
nent injunction against the defendant Irene Hand 
Corrigan, restraining her “ from directly or indirectly sell­
ing and conveying or causing to be sold and conveyed to 
the defendant Helen Curtis” certain land in the City of 
Washington pursuant to a contract entered into, from 
making and delivering a deed or any other form of con­
veyance of the land to the defendant Helen Curtis, and 
enjoining the latter, her heirs and assigns, for the period 
of twenty-one years from taking title, directly or indi­
rectly, to such land, and from using or occupying it and 
from selling, conveying, leasing, renting or giving the 
same to or permitting the same to be used or occupied 
by any negro or negroes or person or persons of the negro
race or blood (Bee., pp. 5, 6).

The facts set forth in the bill and upon which this 
prayer for equitable relief is based are undisputed. I he

Appeal from the 
Court of Appeals 
of the District 
of Columbia.



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appellee is tlie owner of premises known as 1719 S Street, 
N. W., Washington. The appellant Irene Hand Corrigan 
was the owner of premises known as 1727 S Street, N. W., 
Washington. On June 1, 1921, Buckley, Mrs. Corrigan 
and twenty-eight other persons, all of whom at the time 
owned twenty-three other parcels of land improved by 
dwelling houses adjacent and contiguous to and in the 
same immediate neighborhood as the lands of the appellee 
and Mrs. Corrigan and severally situated on both the 
north and south sides of S Street between New Hampshire 
Avenue and 18th Street, N. W., in the City of Washington, 
entered into a covenant which is set forth in the Record 
at pages 6-9.

This instrument, after reciting that the parties who 
executed it are tlie oivners of real estate located in the 
District described and that they “desire, for their mutual 
benefit, as well as for the best interests of the said com­
munity and neighborhood, to improve—in any legitimate 
way further the interests of said community,” provides 
that the parties thereto mutually covenant, promise and 
agree with each other and for their respective heirs and 
assigns “that no part of the land now owned by the parties 
hereto, a more detailed description of said property being 
given after the respective signatures hereto, shall ever be 
used or occupied by or sold, conveyed, leased, rented, or 
given, to Negroes or any person or persons of the Negro 
race or blood. This covenant shall run with the land and 
bind the respective heirs and assigns of the parties here­
to for the period of twenty-one (21) years from and after 
the date of these presents.”

All the persons who executed this covenant are white 
persons, a large number of whom occupied, resided in and 
made their homes, and continued to occupy, reside and 
make their homes in the premises described (Rec., p. 2).

On September 26, 1922, Mrs. Corrigan entered into a 
sales contract with Mrs. Curtis, by which the latter agreed 
to purchase from Mrs. Corrigan and she agreed to sell



3

and convey to Mrs. Curtis the premises 1727 S Street, 
Northwest, which instrument was duly recorded in the 
office of the Recorder of Deeds of the District of Colum­
bia (B e e pp. 3, 9, 10). Mrs. Curtis is a person of the 
Negro race and blood.

A number of parties to the covenant thereupon “ objected 
and protested to the defendant Corrigan against the ex­
ecution or carrying out by her of the terms and provisions 
of said contract of sale,” but on November 8, 1922, she 
definitely stated “that she would not fight the said con­
tract of sale, that is to say, would not refuse to execute 
and carry out the terms and conditions thereof, nor would 
she refuse to sell and convey to the defendant Curtis the 
land and premises involved as aforesaid, nor would she 
refuse to make, sign, seal and deliver a deed to the same 
to said defendant last named, * * * and now is threat­
ening to execute and carry out and is about to execute 
and carry out the terms and provisions of the aforesaid 
contract of sale and in pursuance thereof to sell and con­
vey to the defendant Curtis the land and premises in­
volved as aforesaid and to make, sign, seal and deliver 
a deed to the same to said defendant Curtis” (Bee., pp. 
4 , 5 ).

After setting forth these facts, the bill of complaint 
alleges (Bee., p. 5) :

“ 14. That if the threats aforesaid are fulfilled and 
carried out and the defendant sells and conveys to 
the defendant Curtis the said land and premises and 
makes, signs, seals and delivers a deed to the same to 
said defendant Curtis, irreparable injury will be done 
to the plaintiff and to the other persons who are 
parties to the aforesaid indenture or covenant and 
that plaintiff has no plain, adequate or complete 
remedy at law; and plaintiff further avers that he is 
entitled to specific performance on the part of the 
defendant Corrigan of her said agreements and cove-



4

mints as set out in the said Indenture or Covenant 
mentioned and described in paragraph 6 of this bill 
and to have the terms and provisions of said Indenture 
or Covenant specifically enforced in equity by means 
of an injunction preventing both the said defendants 
Corrigan and Curtis from carrying into effect the said 
contract of sale mentioned and described in paragraph 
7 of this bill.’ '

Mrs. Curtis moved to dismiss the bill of complaint on 
the grounds that the alleged indenture or covenant was 
void, in that it attempts to deprive her and others of 
property without due process of law ; abridges the privi­
leges and immunities of citizens of the United States, and 
other persons within this jurisdiction, of the equal pro­
tection of the law, and is forbidden by the Fifth, Thir­
teenth and Fourteenth Amendments to the Constitution of 
the United States and the laws enacted in aid and under 
the sanction of the Thirteenth and Fourteenth Amend­
ments {Bee., p. 11).

As appears from the opinion of the Supreme Court of 
the District of Columbia “the defendant urges very 
strongly in her brief that such a restriction is against 
public policy and the point is perhaps one that should be 
considered” {Bee., p. 14). The Court thereupon discussed 
at length this point and passed upon it, and decided it 
adversely to the contention of Mrs. Curtis.

Mrs. Corrigan also moved to dismiss the complaint on 
the ground that the alleged indenture is void, that it is 
contrary to and in violation of the Constitution of the 
United States, and that it “ is void in that the same is 
contrary to public policy” {Bee., p. 17).

Both of these motions were overruled and both of the 
parties electing to stand on their motions to dismiss the 
Court permanently enjoined both of them in conformity 
with the prayer of the bill of complaint {Bee., pp. 17-19).

An appeal was thereupon taken by both defendants to



5

the Court of Appeals of the District of Columbia, where 
error was assigned not only on the ground of the con­
stitutional questions above stated, but also that the Court 
erred in holding that the covenant set out in the bill 
was not void as against public policy and in not holding 
to the contrary (Bee., p. 19). The Court of Appeals af­
firmed the decree of the Supreme Court (B e e p. 25), and 
thereafter an appeal to this Court was allowed (R e c pp. 
25-27).

Assignments of Error.

Among the Assignments of Error are the following 
(Rec., p. 26) :

“3. The Court erred in holding that the indenture 
or covenant set out in appellee’s bill of complaint 
is not void as against public policy.”

“4. The Court erred in holding to the contrary.” 
“5. The Court erred in not holding that the said 

indenture or covenant is void in that it deprives the 
defendants, appellants, and others, of property with­
out due process of law.”

“ 6. The Court erred in holding to the contrary.” 
“ 7. The Court erred in not holding that the said 

indenture or covenant is void in that it abridged the 
privileges and immunities of citizens of the United 
States, including the defendants, appellants, Irene 
Hand Corrigan and Helen Curtis, and other persons 
within this jurisdiction.”

“8. The Court erred in holding to the contrary.”
“9. The Court erred in not holding that the said 

indenture or covenant is void in that it denied to 
the said defendants, the said Irene Hand Corrigan 
and Helen Curtis, and other persons within this juris­
diction, the equal protection of the law.”

“10. The Court erred in holding to the contrary.”



6

“11. The Court erred in not holding that the said 
indenture or covenant is void in that it is forbidden 
by the Constitution of the United States and espe­
cially by the Fifth, Thirteenth and Fourteenth Amend­
ments thereof, and the laws enacted in aid and under 
the sanction of the said Fifth, Thirteenth and Four­
teenth Amendments.”

“ 12. The Court erred in holding to the contrary.”

POINTS,

I.

The decrees of the Courts below constitute a viola- 
tion of the Fifth and Fourteenth Amendments to the 
Constitution, in that they deprive the appellants of their 
liberty and property without due process of law.

This proposition is the legitimate and logical conse­
quence of the unanimous decision rendered by this Court in 
Buchanan v. Warley, 245 U. S., 60. There it was at­
tempted, by legislation in the form of a city ordinance, 
to forbid colored persons from occupying houses as resi­
dences, or places of abode, or public assembly, on blocks 
where the majority of the houses were occupied by white 
persons for those purposes, and in like, manner forbidding 
white persons when the conditions as to occupancy were 
reversed, and which based the interdiction upon color and 
nothing more.

Here the decrees of the Supreme Court and the Court 
of Appeals of the District of Columbia have forbidden 
Mrs. Corrigan, a white person, from selling to Mrs. 
Curtis, a colored person, and Mrs. Curtis from buying, a 
house in the residential district of Washington, solely 
because Mrs. Curtis is of Negro race or blood, and for­
bidding Mrs. Curtis, her heirs and assigns, for a period of 
twenty-one years, from taking title to this property, from



7

using or occupying it, and from selling, conveying, leasing, 
renting or giving it* to or permitting it to be used or oe- 
cuped by any Negro or Negroes or persons of the Negro 
race or blood.

The question that was to be determined in Buchanan v. 
Worley was thus stated by Mr. Justice Day (p. 75) :

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

In the course of the discussion of this proposition, it 
was said:

“Property is more than the mere thing which a 
person owns. It is elementary that it includes the 
right to acquire, use, and dispose of it. The Con­
stitution protects these essential attributes of prop­
erty. Holden v. Hardy, 169 U. S., 366, 391. Prop­
erty consists of the free use, enjoyment, and disposal 
of a person’s acquisitions without control or diminu­
tion save by the law of the land. 1 Blackstone’s Com­
mentaries (Cooley’s Ed.), 127.”

The opinion then considers the history of the Thirteenth 
and Fourteenth Amendments, quoting from the Slaughter 
House Cases, 16 Wall., 36; Stra-uder v. West Virginia, 100 
U. S., 303, and Ex parte Virginia, 100 U. S., 339, 347.

A part of the quotation from Strauder v. West Virginia 
consisted of these passages (p. 77) :

“What is this (the Fourteenth Amendment) but 
declaring that the law in the States shall be the same 
for the black as for the white; that all persons, 
whether colored or white, shall stand equal before the



8

laws of the States, and, in regard to the colored race, 
for whose protection the amendment was primarily 
designed, that no discrimination shall he made against 
them by law because of their color? * * * The Four­
teenth Amendment makes no attempt to enumerate 
the rights its designed to protect. It speaks in gen­
eral terms, and those are as comprehensive as pos­
sible. Its language is prohibitory; but every prohi­
bition implies the existence of rights and immunities, 
prominent among which is an immunity from in­
equality of legal protection, either for life, liberty, or 
property. Any State action that denies this immunity 
to a colored man is in conflict with the Constitution.”

The quotation from Ex parte Virginia, supra, is espe­
cially important:

“Whoever, by virtue of public position under a 
State government, deprives another of property, life, 
or liberty, without due process of law, or denies or 
takes away the equal protection of the laws, violates 
the constitutional inhibition; and as he acts in the 
name and for the State, and is clothed with the State’s 
power, his act is that of the State.”

It is proper to pause at this point to refer to the de­
cision in Virginia v. Rives, 100 U. S., 313, rendered con­
currently with Ex parte Virginia, where Mr. Justice 
Strong said:

“ It is doubtless true that a State may act through 
different agencies,—either by its legislative, its ex­
ecutive, or its judicial authorities; and the prohibi­
tions of the amendment extend to all action of the 
State denying equal protection of the laws, whether 
it be action by one of these agencies or by another. 
Congress, by virtue of the fifth section of the Four­
teenth Amendment, may enforce the prohibitions



9

whenever they are disregarded by either the Legisla­
tive, the Executive, or the Judicial Department of 
the State.”

We add a further quotation from the opinion in Ex 
parte Virginia (pp. 346, 347) :

“We have said the prohibitions of the Fourteenth 
Amendment are addressed to the States. * * * They 
have reference to actions of the political body de­
nominated a State, by whatever instruments or in 
whatever modes that action may be taken. A state 
acts by its legislative, its executive or its judicial 
authorities. It can act in no other way.”

In United States v. Harris, 106 U. S., 629, 639, this 
Court said:

“When the State has been guilty of no violation of 
its provisions; when it has not made or enforced any 
law abridging the privileges or immunities of citizens 
of the United States; when no one of its departments 
has deprived any person of life, liberty, or property 

. without due process of law, or denied to any person 
within its jurisdiction the equal protection, of the 
laws; when, on the contrary, the laws of the State, 
as engcted by its legislative, and construed by its 
judicial, and administered by its executive depart­
ments, recognize and protect the rights of all persons, 
the amendment imposes no duty and confers no power 
upon Congress.”

So in Scott v. MoNeal, 154 U. S., 34, it was held that 
the prohibitions of the Amendment extended to “all acts 
of the State, whether through its legislative, its executive, 
or its judicial authorities.”

And in Chicago, Burlington & Quincy R. R. Co. v. 
Chicago, 166 U. S., 226, 233, Mr. Justice Harlan, said:



10

“ But it must be observed that tbe prohibitions of 
the amendment refer to all the instrumentalities of 
the State, to its legislative, executive and judicial 
authorities, and, therefore, whoever by virtue of 
public position under a State government deprives 
another of any right protected by that amendment 
against deprivation by the State, violates the con­
stitutional inhibition; and as he acts in the name and 
for the State, and is clothed with the State’s power, 
his act is that of the State.”

Further Mr. Justice Harlan says (pp. 234, 235) :

“But a State may not, by any of its agencies, dis­
regard the prohibitions of the Fourteenth Amend­
ment. Its judicial authorities may keep within the 
letter of the statute prescribing forms of procedure 
in the courts and give the parties interested the full­
est opportunity to be heard, and yet it might be that 
its final action would be inconsistent with that amend­
ment. In determining what is due process of law re­
gard must be had to substance, not to form.”

See also Home Telephone & Telegraph Co. v. Los 
Angeles, 227 U. S., 278, where it was again declared that 
these provisions of the Constitution are generic in terms 
and are addressed not only to the States, but to every per­
son, whether natural or judicial, who is the repository of 
State power, and that their reach is co-extensive with any 
exercise by a State of power in whatever form asserted.

The same effect has been given to the due process clause 
of the Fifth Amendment to the Constitution. Seventy 
years ago, in Murray’s Lessee v. Hoboken Land & Im­
provement Co., 18 How., 276, Mr. Justice Curtis said:

“ It is manifest that it was not left to the legisla­
tive power to enact any process which might be de­
vised. The article is a restraint on the legislative



11

as well as on the executive and judicial powers of 
the Government

In Hovey v. Elliott, 167 U. S., 409, this Court was 
called upon to determine the effect of an order rendered 
by the Supreme Court of the District of Columbia at 
General Term in a contempt proceeding, which decreed 
that the defendants’ answer be stricken out and removed 
from the files of the court because of non-compliance on 
their part with the requirements of a decree previously 
rendered by the court, and that the cause should then 
proceed as if no answer had been interposed. It w~as 
held that the action of the court was a violation of the 
Fifth Amendment. Mr. Justice White, in the course of 
his comprehensive opinion, said:

“ To say that courts have inherent power to deny all 
right to defend an action and to render decrees with­
out any hearing whatever is, in the very nature of 
things, to convert the court exercising such an au­
thority into an instrument of wrong and oppression, 
and hence to strip it of'that attribute of justice upon 
which the exercise of judicial power necessarily de­
pends” (p. 414).

Again, on page 417, he said, in words which could be 
well applied here:

“ If the legislative department of the government 
were to enact a statute conferring the right to con­
demn the citizen without any opportunity whatever 
of being heard, would it be pretended that such an 
enactment would not be violative of the Constitution? 
If this be irue, as it undoubtedly is, how can it be 
said that the judicial department, the source and foun­
tain of justice itself, has yet the authority to render 
lawful that which if done under express legislative



12

sanction would be violative of the Constitution? If  
such power obtains, then the judicial department of 
the government sitting to uphold and enforce the 
Constitution is the only one possessing a power to 
disregard it. I f such authority exists then in conse  ̂
quence of their establishment, to compel obedience to 
lam and to enforce justice courts possess the right 
to inflict the very wrongs which they were created to 
prevent

Beturning to the opinion in Buchanan v. Warley, sup­
plemented by these utterances, which include in the con­
stitutional inhibition not merely executive and legislative 
invasions of the right sought to be protected, but also 
those of the judicial arm of the Government, we find that, 
in giving legislative aid to these constitutional provisions, 
Congress made two statutory declarations, which consti­
tute Sections 1977 and 1978 of the United States Bevised 
Statutes. The first of these reads:

“All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, penalties, 
taxes, licenses and exactions of every kind, and no 
other.”

Section 1978 declares:

“All citizens of the United States shall have the 
same right in every State and Territory as is enjoyed 
by white citizens thereof to inherit, purchase, lease, 
sell, hold and convey real and personal property.”

After referring to the authorities and statutes cited by



13

Mm, Mr. Justice Day very appropriately asked : “ In the 
face of these constitutional and statutory provisions, can 
a white man be denied, consistently with due process of 
law, the right to dispose of his property to a purchaser by 
prohibiting the occupation of it for the sole reason that the 
purchaser is a person of color intending to occupy the 
premises as a place of residence?” He answered (p. 78) :

“ The statute of 1866, originally passed under sanc­
tion of the Thirteenth Amendment, 14 Stat., 27, and 
practically reenacted after the adoption of the Four­
teenth Amendment, 16 Stat., 144, expressly provided 
that all citizens of the United States in any State 
shall have the same right to purchase property as is 
enjoyed by white citizens. Colored persons are citi­
zens of the United States and have the right to pur­
chase property and enjoy and use the same without 
laws discriminating against them solely on account of 
color. Hall v. DeCuvr, 95 U. S., 485, 508. These en­
actments did not deal with the social rights of men, 
but with those fundamental rights in property which 
it was intended to secure upon the same terms to 
citizens of every race and color. Civil Rights Cases, 
109 U. S., 3, 22. The Fourteenth Amendment and 
these statutes enacted in furtherance of its purpose 
operate to qualify and entitle a colored man to ac­
quire property without State legislation discriminat­
ing against him solely because of color.”

The opinion then refers to and distinguishes Plessy v. 
Ferguson, 163 U. S., 537, and other cases, which will be 
considered later.

The final paragraph of the opinion states the deliberate 
conclusion of this Court:

' “We think this attempt to prevent alienation of 
the property in question to a person of color was 
not a legitimate exercise of the police power of the



14

State, and is in direct violation of the fundamental 
law enacted in the Fourteenth Amendment of the 
Constitution preventing State interference with prop­
erty rights except by due process of law. That being 
the case the ordinance cannot stand.”

We have, therefore, the solemn pronouncement of this 
tribunal, that it was not within the legislative power of the 
State, or any of its instrumentalities, to forbid Mrs. Corri­
gan from selling her house to Mrs. Curtis, or the latter 
from purchasing and occupying it.

For the reasons considered in Buchanan V. 'Worley, it 
would have been beyond the legislative power to have en­
acted that a covenant in the precise terms of that involved 
in the present case should be enforceable by the courts by 
suit in equity and by means of a decree of specific perfor­
mance, an injunction, and proceedings for contempt for 
failure to obey the decree. It seems inconceivable that, so 
long as the legislature refrains from passing such an en­
actment, a court of equity may, by its command, compel 
the specific performance of such a covenant, and thus give 
the sanction of the judicial department of the Government 
to an act which it was not within the competency of its 
legislative branch to authorize.

As has been shown, this court has repeatedly included 
the judicial department within the inhibitions against the 
violation of the constitutional guaranties which we have 
invoked.

We cannot emphasize too strongly that the immediate 
consequence of the decrees now under review is to bring 
about that which the legislative and executive departments 
of the Government are powerless to accomplish. It would 
seem to follow that by these decrees the appellants have 
been deprived of their liberty and property, not by indi­
vidual, but by governmental action. These decrees have all 
the force of a statute. They have behind them the sov­
ereign power. It is not Buckley, the appellee, but the sov­
ereignty, which speaks through the Court, that has issued



15

a mandate to the appellants which prevents Mrs. Corrigan 
from selling, leasing or giving her property to Mrs. Curtis, 
and the latter from acquiring and occupying the property, 
simply because she is of the negro race or blood.

In rendering these decrees, the Courts which have pro­
nounced them have functioned as the law-making power. 
It is they who are seeking to effectuate the policy of racial 
segregation based on color. They have virtually an­
nounced to all colored persons: “You shall not inherit, 
purchase, lease, sell or hold real property for the acquisi­
tion of which you have entered into a contract, simply be­
cause you are of the negro race or blood.” They have told 
those of the white race who have entered into a covenant 
such as is referred to in the decrees: “You shall not sell, 
lease or give your property to any person of the negro race 
or blood.”

They have practically declared: “ If the owners of prop­
erty in a particular locality, however extensive its area 
may be, see fit to agree on such a policy of segregation, 
these Courts, sitting in equity, may nevertheless by their 
decrees enforce such a policy, even if it be conceded that 
they would be prohibited from doing so by the decision of 
the Supreme Court of the United States if the legislative 
branch of the Government had established a like policy.”

To test the incongruity of such a situation, let us sup­
pose that after the decision in Buchanan v. Worley the 
Common Council of the City of Louisville had adopted an 
ordinance permitting the residents of the same districts 
which were affected by the ordinance which this Court had 
declared unconstitutional, to enter into a covenant in the 
precise terms of that which the Courts below have enforced 
in this case, would it not at once have been said that it was 
an intolerable invasion of the Constitution as interpreted 
by this Court. But that is exactly what has been done in 
the present case by the adjudications which are now here 
for review.

Or let us suppose, that after the rendition of these de­



16

crees, Mrs. Corrigan, standing on her constitutional rights, 
had executed a deed of the premises here in question to 
Mrs. Curtis, and the latter had proceeded to occupy them, 
would it have been within the competency of the court to 
have imprisoned either or both of them as for a contempt 
of court? The exercise by the Court of its power to enforce 
its decrees through the medium of contempt proceedings, 
would be nothing more or less than the enforcement of the 
policy of racial segregation based on color, in violation of 
the letter and spirit of the Constitution as interpreted in 
Buchanan v. Warley.

After Buchanan v. Warley had been remanded by this 
Court to the Kentucky Court of Appeals for further pro­
ceedings not inconsistent with the opinion rendered, would 
this Court have countenanced an amendment of the decree 
which it had reversed, providing that ninety per cent, of 
the residents of the district in which segregation had been 
attempted might enter into a covenant in precisely the 
same terms as the ordinance and that, thereupon, such 
covenant should be in full force and effect?

In Gondolfo v. Hartman, 49 Fed. Rep., 181, Judge Ross 
said (p. 182) :

“ It would be a very narrow construction of the con­
stitutional amendment in question and of the decisions 
based upon it, and a very restrictive application of the 
broad principles upon which both the amendment and 
the decisions proceed, to hold that, while the State and 
municipal legislatures are forbidden to discriminate 
against the Chinese in their legislation, a citizen of the 
State may lawfully do so by contract, which the Courts 
may enforce. Such view is, I think, entirely inadmis­
sible. Any result inhibited by the Constitution can no 
more be accomplished by contract of individual citi­
zens than by legislation, and the Court should no 
more enforce the one than the other. This would seem 
to be very clear.”



17

After citing Kennett v. Chambers, 14 How., 49, the opin­
ion continues (p. 183) :

“But the principle governing the case is, in my 
opinion, equally applicable here, where it is sought to 
enforce an agreement made contrary to the public pol­
icy of the government, and in violation of the prin­
ciples embodied in its Constitution. Such a contract 
is absolutely void and should not be enforced in any 
court, certainly not in a court of equity of the United 
States.”

In Plessy v. Ferguson, as pointed out by this Court, 
there was no attempt to deprive all persons of color of 
transportation in the coaches of a public carrier. The ex­
press requirements of the statute there challenged were 
for equal, though separate, accommodations for the white 
and colored races.

On the other hand, in McCabe v. Atchison, Topeka & 
Santa Fe By. Co., 235 U. S., 151, a statute which allowed 
railroad companies to furnish dining cars for white peo­
ple and to refuse to furnish them for colored people, was 
held to be unconstitutional.

The Applicability of Constitutional Amendments to the 
District of Columbia.

In the opinion rendered by the Supreme Court of the 
District of Columbia in the present case it was suggested 
{Bee., p. 12) that the Court of Appeals of the District 
had held that the Fourteenth Amendment was not in force 
in the District of Columbia, citing Siddons v. Edmonston, 
42 App. D. C., 459; at the same time adding that since 
the provisions of that Amendment are, so far as concerns 
the question here involved, as broad at least as those ol 
the Fifth and Thirteenth Amendments and if the provi­
sions of the Fourteenth Amendment would not, if applica­
ble, sustain the defendants’ contention, it was unnecessary



18

to consider the other two Amendments (District of Colum­
bia v. Brooke, 214 U. S., 138, 149). In that view of the 
case, the Court decided that the Fourteenth Amendment 
did not sustain the defendants’ contention.

We have already considered that aspect of the subject. 
We deem it appropriate, however, to call attention to the 
decisions which we contend render applicable to the Dis­
trict of Columbia the several constitutional amendments 
to which reference has been made.

In Downes v. Bidioell, 182 U. S., 244, 259, 263, the ap­
plicability of the Constitution to the District of Colum­
bia was exhaustively considered. Referring to Loughbor­
ough v. Blake, 5 Wheat., 317, attention was called to the 
fundamental fact that the District of Columbia consisted 
of territory which had been originally a part of the States 
of Maryland and Virginia. Subsequently, in 1846, the 
portion of the territory granted by Virginia was retro­
ceded to that State (9 II. S. St. L., 35; Evans v. United 
States, 31 App. D. C., 544). Therefore the territory that 
now constitutes the District of Columbia was Maryland 
territory. Consequently, as said by Mr. Justice Brown:

“ It had been subject to the Constitution and was 
a part of the United States. The Constitution had 
attached to it irrevocably. There are steps which can 
never be taken backward. The tie that bound the 
States of Maryland and Virginia to the Constitution 
could not be dissolved, without at least the consent 
of the Federal and State governments to a formal 
separation. The mere cession of the District' of 
Columbia to the Federal government relinquished the 
authority of the States, but it did not take it out of 
the United States or from under the aegis of the Con­
stitution. Ueither party had ever consented to that 
construction of the cession. If, before the District 
was set off, Congress had passed an unconstitutional 
act, affecting its inhabitants, it would have been void.



19

If done after the District was created, it would have 
been equally void; in other words, Congress could not 
do indirectly by carving out the District what it could 
not do directly. The District still remained a part 
of the United States, protected by the Constitution. 
Indeed, it would have been a fanciful construction to 
hold that territory which had been once a part of 
the United States ceased to be such by being ceded 
directly to the Federal government.”

It was accordingly held that Article I, Section 8, of the 
Constitution, which gave Congress the power “to lay and 
collect taxes, imposts and excises” which “shall be uni­
form throughout the United States,” extended to the Dis­
trict of Columbia. This conclusion, so far as it affected 
the District of Columbia, was approved in the opinion of 
Mr. Justice Brown, although he and four other Justices 
of this Court did not consider the constitutional provi­
sion there under consideration as applicable to the Terri­
tories. On the other hand, however, the members of the 
Court who were in the minority, namely, Chief Justice 
Fuller, Mr. Justice Harlan, Mr. Justice Brewer and Mr. 
Justice Peckham, went even further than Mr. Justice 
Brown, and held that the constitutional provision followed 
the flag and operated throughout “the geographical 
unit knoAvn as the United States,” “ our great Republic, 
which is composed of States and Territories” (182 U. S., 
356). It follows that a majority of the Court recognized, 
that the Constitution applied to the District of Columbia.

It has been held expressly that the Fourth Amendment, 
relating to searches and seizures, Stoutenburgh v. Frasier, 
16 App. D. C., 229, Curry v. District of Columbia, 14 App. 
D. C., 423; the Fifth Amendment, Wight v. Davidson, 181 
U. S., 371, Moses v. United States, 16 App. D. C., 428; the 
Eighth Amendment, concerning excessive bail, fines and 
unusual punishments, Stoutenburgh v. Frazier, 16 App. 
D. C., 229; and the provisions relating to jury trials, Cal-



20

Ian v. Wilson, 127 U. S., 510, are all applicable to the 
District of Columbia.

In Gurry v. District of Columbia, supra, the Court said:

“Ho more in the District of Columbia than any­
where else within the United States, could the legis­
lature of the Union pass a bill of attainder or an 
ex post facto law, or dispense with trial by jury, or 
establish a religion, or authorize unreasonable 
searches. All the general limitations imposed by the 
Constitution upon its authority are as applicable in 
the District of Columbia as in any other part of the 
United States. And not only are these express limita­
tions applicable, but * * * all the ‘implied limita­
tions which grow out of the nature of all free gov­
ernments’ are equally applicable. The ‘exclusive’ 
power of legislation over this District which is vested 
in Congress by the Constitution, must be assumed to 
extend only to all lawful subjects of legislation; and 
invasions of those fundamental individual rights, 
which lie at the foundation of the social compact, and 
for the maintenance of which free governments exist, 
are not lawful subjects of legislation.”

In Lappin v. District of Columbia, 22 App. D. C., 68, 
75, Mr. Justice Shepard said:

“It must be conceded that the Fourteenth Amend­
ment, which expressly declares that no State shall 
deny to any person within its jurisdiction the equal 
protection of the laws, does not purport to extend to 
authority exercised by the United States. But it 
does not follow that Congress in exercising its power 
of legislation within and for the District of Columbia 
may, therefore, deny to persons residing therein the 
equal protection of the laws. All of the guaranties 
of the Constitution respecting life, liberty, and prop­



21

erty are equally for the benefit and protection of all 
citizens of the United States residing permanently 
or temporarily within the District of Columbia, as of 
those residing in the several States. Gallan v. Wil­
son, 127 U. S., 510; United States ex rel. Kerr v. Ross, 
5 App. D. C., 211, 217; Gurry v. District of Columbia, 
11 App. D. C., 123.”

In Gallan V. Wilson, supra, Mr. Justice Harlan said (p. 
519) :

“And as the guarantee of a trial by jury, in the 
third article, implied a trial in that mode and accord­
ing to the settled rules of the common law, the enu- 
meration in the Sixth Amendment, of the rights of 
the accused in criminal prosecutions, is to be taken 
as a declaration of what those rules were, and is to 
be referred to the anxiety of the people of the States 
to have in the supreme law of the land, and so far 
as the agencies of the General Government were con­
cerned, a full and distinct recognition of those rules, 
as involving the fundamental rights of life, liberty 
and property. This recognition was demanded and 
secured for the benefit of all the people of the United 
States, as well those permanently or temporarily re­
siding in the District of Columbia, as those residing 
or being in the several States. There is nothing in 
the history of the Constitution or of the original 
amendments to justify the assertion that the people 
of this District may be lawfully deprived of the bene­
fit of any of the constitutional guarantees of life, lib­
erty and property—especially of the privilege of trial 
by jury in criminal cases.”

In the opinion of Mr. Justice Brown in Downes V. Bid- 
well, supra, Gallan v. Wilson was declared to be in line 
with Loughborough v. Blake.

In Smoot v. Heyl, 227 U. S., 518, which related to the



22

validity of a building regulation adopted by the Commis­
sioners of the District of Columbia, -which was challenged 
on the ground that it was “unconstitutional and void be­
cause its effect is to deprive your complainants of their 
property without due process of law and just compensa­
tion,” this Court, in assuming jurisdiction, necessarily de­
cided that the due process clause of the Constitution was 
applicable to the District of Columbia; and in the subse­
quent case of Walker v. Gish, 260 U. S., 447, in which the 
validity of a regulation relating to party walls in the City 
of Washington was challenged on the same ground, this 
Court likewise considered the due process clause as ap­
plicable to the District of Columbia.

In Block v. Hirsh, 256 XL S., 135, in which the consti­
tutionality of the Rent Laws of 1919 enacted for the Dis­
trict of Columbia was attacked on the ground that .they 
involved the taking of property not for public use and 
without due process of law, this Court elaborately dis­
cussed their constitutionality; as it did in Ghastleton Cor­
poration v. Sinclair, 264 U. S., 543, that of the act passed 
in 1922, whereby it was attempted to extend the duration 
of these laws.

In Adkins v. Children’s Hospital, 261 U. S., 525, which 
related to the constitutionality of the District of Colum­
bia Minimum Wage Law, this Court declared the law to 
be in contravention of the Constitution, particularly of 
the due process clause of the Fifth Amendment.

When, therefore, the Court below (Bee., p. 12), in the 
face of these decisions, based its assertion that the Four­
teenth Amendment was not in force in the District of 
Columbia, on the alleged authority of Siddons v. Edmon- 
ston, 42 App. D. C., 459, it is not surprising that we find 
that the Court there confined itself to a bald statement 
which as the context shows was clearly obiter,

“The prohibition in this Amendment, to which the 
appellee refers, applies to the States and not to the 
District of Columbia.”



23

It is, however, surprising that the citation in support of 
that assertion is District of Columbia v. Brooke, 214 U. S., 
138, when it distinctly appears that in that case, this Court 
declared it to be unnecessary to determine whether or not 
the Fourteenth Amendment applied to the District of Co­
lumbia, because it was conceded that the Fifth Amend­
ment unquestionably did, and that it was not more exten­
sive in its provisions than the Fourteenth Amendment. 
Therefore, reaching the conclusion that the legislation 
which was challenged on the ground that it denied the 
equal protection of the laws, merely involved such classifi­
cation as had frequently been regarded as permissible 
under the Fourteenth Amendment, it was upheld as consti­
tutional.

Hence, this Court did not in District of Columbia v. 
Brooke render a decision warranting its citation as author­
ity for the proposition asserted.

It would seem, however, that if, as adjudged in Lough­
borough v. Blake and Downes v. Bidwell, the Constitution 
became irrevocably attached to the land which originally 
was a part of Maryland, upon its incorporation into the 
District of Columbia, the Constitution in its entirety be­
came applicable to the District of Columbia. The Thir­
teenth Amendment, which abolished slavery and involun­
tary servitude, certainly did; that portion of the Four­
teenth Amendment which related to citizenship, unques­
tionably did; as did the Fifteenth, Sixteenth and nine­
teenth Amendments.

The suggestion that, because the prohibitions of Section 
1 of the Fourteenth Amendment, against the abridgment of 
the privileges and immunities of citizens of the United 
States and against the deprivation of any person of life, 
liberty and property without due process of law and the 
denial to any person “within its jurisdiction” of the equal 
protection of the laws” , begin with the words “bio State” 
and “Nor shall any State” , they do not apply to the Dis­
trict of Columbia, is a proposition that disregards the



24

manifest intention which gave rise to this Amendment and 
the historical conditions out of which it arose. Prom a con­
stitutional standpoint, the District of Columbia at that 
time was regarded as on the same level with the State of 
Maryland, of which it had constituted a part.

To give so narrow an interpretation to the word “ State” 
ignores not only the history of the District of Columbia, 
but also the fact that it was the very nucleus of the storm- 
centre out of which emerged the Fourteenth Amendment, 
that it was there that not only the Civil War had its most 
important setting, but where the pre-war and the post-war, 
scenes of the great drama which culminated in the adop­
tion of the Thirteenth and Fourteenth Amendments were 
enacted. It is, therefore, as inconceivable that the District 
of Columbia is to be excluded from the operation of the 
Fourteenth Amendment as that it was intended to exclude 
it from the operation of the Eighteenth Amendment.

This Court had occasion in Geofroy v. Riggs, 133 IT. S., 
258, to consider the phrase “ States of the Union” as con­
tained in a clause of a treaty between the United States 
and France which related to the right of Frenchmen to en­
joy the privilege of possessing personal and real property 
in “the States of the Union” . There the question arose as 
to whether under this treaty, a citizen of France could take 
land in the District of Columbia by descent from a citizen 
of the United States. It was held that the District of Co­
lumbia, as a political community, was one of “ the States of 
the Union” within the meaning of that term as used in the 
treaty, Mr. Justice Field saying in support of that conclu­
sion:

“ This article is not happily drawn. It leaves in 
doubt what is meant by ‘States of the Union’. Ordi­
narily these terms would be held to apply to those 
political communities exercising various attributes of 
sovereignty which compose the United States, as dis­
tinguished from the organized municipalities known 
as Territories and the District of Columbia. And yet



25

separate communities, with an independent local gov­
ernment, are often described as states, though the ex­
tent of their political sovereignty be limited by rela­
tions to a more general government or to other coun­
tries. Halleck on Int. Law, c. 3, sections 5, 6, 7. The 
term is used in general jurisprudence and by writers 
on public law as denoting organized political societies 
with an established government. Within this defini­
tion the District of Columbia, under the government 
of the United States, is as much a State as any of 
those political communities which compose the United 
States. Were there no other territory under the gov­
ernment of the United States, it would not be ques­
tioned that the District of Columbia would be a State 
within the meaning of international law; and it is not 
perceived that it is any less a State within that mean­
ing because other States and other territory are also 
under the same government. In Hepburn v. Elisey, 2 
Cranch, 445, 452, the question arose whether a resident 
and a citizen of the District of Columbia could sue a 
citizen of Virginia in the Circuit Court of the United 
States. The Court, by Chief Justice Marshall, in de­
ciding the question, conceded that the District of Co­
lumbia was a distinct political society, and therefore a 
State according to the definition of writers on general 
law; but held that the act of Congress in providing for 
controversies between citizens of different States in 
the Circuit Courts, referred to that term as used in the 
Constitution, and therefore to one of the States com­
posing the United States. A similar concession, that 
the District of Columbia, being a separate political 
community, is, in a certain sense, a State, is made by 
this Court in the recent case of Metropolitan Railroad 
Go. v. District of Columbia, 132 U. S., 1, 9, decided at 
the present term.”

In Talbot v. Silver Bow County, 139 U. S., 444, Mr. Jus­
tice Brewer, referring to a statute of Montana Territory



26

which undertook to tax the shares of a national bank pur­
suant to Section 5219 of the Revised Statutes, which con­
ferred the power of taxation upon the legislature of each 
State, no reference being made to Territories, said:

“But it would militate much against its national 
character if banks organized under it (the national 
banking system) were subjected to local taxation in 
one part of the Union, and exempted from it else­
where. ISTo such intent ought lightly to be imputed to 
Congress. * * *

Still further, while the word ‘State’ is often used in 
contradistinction to ‘Territory’, yet in its general pub­
lic sense, and as sometimes used in the statutes and 
the proceedings of the government, it has the larger 
meaning of any separate political community, includ­
ing therein the District of Columbia and the Territor­
ies, as well as those political communities known as 
States of the Union. Such a use of the word ‘State’ 
has been recognized in the decisions of this Court.”

Then follow quotations from Hepburn v. Elisey, Metro­
politan Railroad Go. v. District of Columbia and Qeofroy 
v. Riggs, supra.

At all events, there can be no question but that the due 
process clause of the Fifth Amendment applies to the Dis­
trict of Columbia, and, as has been shown, the same inter­
pretation that has been given to the Fourteenth Amend­
ment as to its applicability to the action of the judicial as 
well as of the executive and legislative departments of the 
Government, has been given to the Fifth Amendment.

The Right to Review the Rulings on Public Policy on 
this Appeal.

The appeal to this Court has been taken pursuant to Sec­
tion 250 of the Judicial Code, for the purpose of present­
ing the constitutional questions thus far considered. That



37

merce, gives to every absolute owner of property who 
is sui juris the power to control and dispose of such 
property and subject the same to the payment of his 
debts, we are fully aware of the fact that many other 
authorities may and have been cited to the contrary.”

In Barnard v. Bailey, 2 Harrington (Del.), 56, a con­
dition in a devise that the devisee should not dispose of 
the property to the blood kin of either the testator or the 
devisee, was held to be bad.

In Williams V. Jones, 2 Swan (Tenn.), 620, there was 
a bequest to A on condition that she should not dispose 
of the property so as to allow either of four persons to 
get it. The condition was declared to be void.

In Brothers v. McCurdy, 36 Pa. St., 407, a testator di­
rected that land devised to his son should not be sold to 
any person for the purpose of making brick or carrying 
on a brickmaking business, and more especially that he 
should not sell it to Lotz and Beasley, and declared that 
the devise of the lot was to be void in case of a sale con­
trary to his will, in which event the lot was to be held 
in common by the testator’s other heirs. The gift over 
was adjudged to be void.

See also He Rosher, L. B. 26 Ch. Div., 801, 816, and Re 
Dugdale, L. R. 38 Ch. Div., 176, 179, in both of which 
cases In re Macleay, L. R. 20 Eq., 186, was disapproved, 
as it likewise was in Manierre v. Welling, 32 R. S., 104.

In Renaud v. Tourangeau, L. R., 2 Privy Counsel App., 
4, where a testator in Lower Canada devised real estate to 
her children, providing that they should in no way alien­
ate the property until twenty years after his death, the 
Judicial Counsellor, per Lord Romilly, held that the re­
striction “was not valid either by the old law of France, 
or the general principle of jurisprudence.”

In 4 Kent’s Commentaries, 131, Chancellor Kent, dis­
cussing this general subject, said:

“ Conditions are not sustained when they are re-



38

pugnant to the nature of the estate granted or in­
fringe upon the essential enjoyment and independent 
rights of property and tend manifestly to public in­
convenience. A condition annexed to a conveyance 
in fee or by devise that the purchaser and devisee 
should not alien, is unlawful and void. If the grant 
be upon condition that the grantee shall not permit 
waste or not take the profits, or his wife not have 
her dower or the husband his curtesy, the condition 
is repugnant and void, for those rights are insepar­
able from the estate in fee. Nor could a tenant in 
tail, though his estate was originally intended as a 
perpetuity, be restrained by any proviso in the deed 
creating the estate from suffering a common recovery. 
Such restraints were held by Lord Coke to be ab­
surd and repugnant to reason and to “ the freedom 
and liberty of freemen.” The maxim which he cites 
contains a just and intelligent principle worthy of 
the spirit of the English law in the best ages of Eng­
lish freedom: iniqnum est ingenuis hominibus non 
esse liberam rerum suarum alienationem. If, how­
ever, a restraint upon alienation be confined to an in­
dividual named to whom the grant is not to be made, 
it is said by very high authority to be a valid con­
dition. But this case falls within the general princi­
ple and it may be very questionable whether such a 
condition would be good at this day. In Newkirk v. 
Newkirk (2 Caines, 345), the Court looked with a 
hostile eye upon all restraints upon the free exercise 
of the inherent right of alienation belonging to es­
tates in fee; and a devise of lands to a testator’s chil­
dren in case they continued to inhabit the town of 
Hurley, otherwise not, was considered to be unrea­
sonable and repugnant to the nature of the estate.”

To the same effect are the following decisions:
Clark v. Clark, 99 Md., 356; 58 Atl. Rep., 24;



29

“ The public policy of this State (New York) when 
the legislature acts is what the legislature says that 
it shall be.”

Where would one be more likely to arrive at the sources 
from which our public policy is derivable than by explor­
ing the Constitution and statutes of the United States 
and the adjudications of this Court? A student of our 
history like DeTocqueville, Bryce or von Holst would at 
once be struck by the inconsistency of the principle laid 
down in Buchanan V. Warier/, with that expressed in the 
opinions rendered in the present case by the Courts below.

It would appear to be obvious that, where a legislature 
is prohibited from sanctioning a particular policy, indi­
viduals may not enter into contracts in direct derogation 
of the same policy. Surely that which a legislature can­
not sanction should not be compelled to be done by a 
decree of a court of equity enforcing specific performance 
of an agreement between third parties, which is the equiva­
lent of such legislation and is productive of identical re­
sults.

If such a contract as that involved in the present case 
is valid as affecting a limited area, it would be equally 
effective if it included an entire .city, a county, or a State. 
If the Constitution could be evaded as it is attempted to 
be by the device here employed, it would not be difficult 
to create a situation bearing the elements of a contract 
that would prevent a colored person from owning realty, 
or from taking up his habitation, in any State or in any 
part of a State.

(2) The covenant is- not only one which restricts the 
use and occupancy by negroes of the various premises cov­
ered by its terms, but it also prevents the sale, conveyance, 
lease or gift of any such premises by any of the owners 
or their heirs and assigns to negroes or to any person or 
persons of the negro race or blood perpetually, or at least



30

for a period of twenty-one years. I t is in its essential 
nature a contract in restraint of alienation and is, there­
fore, contrary to public policy.

In the present case it is to be observed that the parties 
to the instrument sought to be enforced in this action have 
covenanted that no part of the land therein described 
owned by them “ shall ever be used or occupied by or sold, 
conveyed, leased, rented, or given to negroes or any per­
son or persons of the negro race or blood” (Bee., p. 7). It 
binds the parties, their respective heirs and assigns, for 
all time. It is true that in the succeeding sentence it is 
declared that the covenant “ shall run with the land * * * 
for the period of twenty-one years from and after the date 
of these presents.” That does not, however, cut down 
the covenant as between the parties so as to limit it to 
a period of twenty-one years. But whether the covenant 
be regarded as a perpetual covenant or as one running for 
twenty-one years only, it is equally opposed to public 
policy.

The subject of such restraints is learnedly discussed in 
DePeyster v. Michael, 6 is. Y., 497, by Chief Judge Bug­
gies. He points out that they were of feudal origin; cre­
ative of a violent and unnatural state of things, contrary 
to the nature and value of property and the inherent and 
universal love of independence; that they arose partly 
from favor to the heir and partly from favor to the lord, 
“and the genius of the feudal system was originally so 
strong in favor of restraints upon alienation, that by a 
general ordinance, mentioned in the Book of Fiefs, the 
hand of him who wrote a deed of alienation was directed 
to be struck off” (p. 498). To deal with this tyranny the 
statute of Quia Emptores was enacted in 18 Edward I, 
which provided “that from henceforth it shall be lawful 
for any freeman to sell, at his own pleasure, his lands 
and tenements, or part of them, so that the feoffee shall 
hold the same lands and tenements of the chief lord of 
the same fee, by such service and customs as the feoffee 
held before.”



31

As Chief Judge Buggies says (p. 500) :

“The effect of this statute is obvious. By declaring 
that every freeman might sell his land, at his own 
pleasure, it removed the feudal restraint which pre­
vented the tenant from selling his land, without the 
license of his grantor, who was his feudal lord. This 
was a restraint imposed by the feudal law, and was 
not created by express contract in the deed of con­
veyance; it was abolished by this clause in the stat­
ute. By changing the tenure from the immediate to 
the superior lord, it took away the reversion from 
the immediate lord; in other words, from the grantor, 
and thus deprived him of the power of imposing the 
same restraint, by contract or condition expressed in 
the deed of conveyance. The grantor’s right to re­
strain alienation immediately ceased, when the stat­
ute put an end to the feudal relation between him and 
his grantee; and no instance of the exercise of that 
right, in England, since the statute was passed, has 
been shown, or can be found, except in the case of 
the king, whose tenure was not affected by the stat­
ute, and to whom, therefore, it did not apply.

The reason given by Lord Coke, why a. condition 
that the grantee shall not alien, is void, is as follows: 
‘For it is absurd and repugnant to reason, that he 
that hath no possibility to have the land revert to 
him, should restrain his feoffee of all his power to 
alien. And so it is, if a man be possessed of a term 
for years, or of a horse, or any other chattel, real 
or personal, and give or sell his whole interest or 
property therein, upon condition that the donee or 
vendee shall not alienate the same, the condition is 
void, because his whole interest and property is out 
of him, so that he hath no possibility of reverter; and 
it is against trade and traffic, and bargaining between 
man and man.’ ”



32

In Potter v. Couch, 141 U. S., 296, 313, Mr. Justice Gray 
said:

“But the right of alienation is an inherent and in­
separable quality of an estate in fee simple. In a 
devise of land in fee simple, therefore, a condition 
against all alienation is void, because repugnant to 
the estate devised. Lit., Sec. 360; Co. Lit., 206b, 223a; 
4 Kent Com., 131; McDonogh v. Murdock, 15 How., 
367, 373, 412. For the same reason, a limitation over, 
in case the first devisee shall alien, is equally void, 
whether the estate be legal or equitable. Howard v. 
Carusi, 109 IT. S., 725; Ware v. Cann, 10 B. & G, 
433; Shaw v. Ford, 7 Ch. D., 669; In re Dugdale, 38 
Ch. D., 176; Corbett v. Corbett, 13 P. D,, 136; Steib 
v. Whitehead, 111 Illinois, 247, 251; Kelley v. Meins, 
135 Mass., 231, and cases there cited. And on princi­
ple, and according to the weight of authority (not­
withstanding opposing dicta in Cowell v. Springs Co., 
100 U. S., 55, 57, and in other books), a restriction, 
whether by way of condition or of devise over, on 
any and all alienation, although for a limited time, 
of an estate in fee, is likewise void, as repugnant to 
the estate devised to the first taker, by depriving him 
during that time of the inherent power of alienation. 
Roosevelt v. Thurman, 1 Johns., Oh. 220; Mandlebaum 
v. McDonell, 29 Mich., 77; Anderson v. Cary, 36 Ohio 
St., 506; Twitty v. Camp, Phil. Eq. (No. Car.) 61; In 
re Rosher, 26 Ch. D., 801.”

Especial attention is called to the exhaustive opinion 
in Manierre v. Welling, 32 R. I., 104, where many cases 
are cited and ably reviewed, and where one of the import­
ant conclusions reached in the case next to be cited was 
adopted:

“We are entirely satisfied there has never been a 
time since the statute quia emptores when a restric-



33

tion in a conveyance of a vested estate in fee sim­
ple, in possession or remainder, against selling for a 
particular period of time, was valid by the common 
law. And we think it would be unwise and injurious 
to admit into the law the principle contended for by 
the defendant’s counsel, that such restrictions should 
be held valid, if imposed only for a reasonable time. 
It is safe to say that every estate depending upon 
such a question would, by the very fact of such a 
question existing, lose a large share of its market 
value. Who can say whether the time is reasonable, 
until the question has been settled in the Court of 
last resort; and upon what standard of certainty can 
the Court decide it? Or, depending as it must upon 
all the peculiar facts and circumstances of each par­
ticular case, is the question to be submitted to a jury? 
The only safe rule of decision is to hold, as I under­
stand the common law for ages to have been, that a 
condition or restriction -which would suspend all 
power of alienation for a single day, is inconsistent 
with the estate granted, unreasonable and void.”

Equally important is the classic opinion of Mr. Jus­
tice Christiancy in Mandlebaum v. McDonell, 29 Mich., 
79, from which the foregoing excerpt is taken. That deci­
sion was approved not only by this Court in Pottei v. 
Couch, 141 IT. S., 315, 316, but also by the English Court 
of Chancery in Tie Posher, L. B. 26 Ch. Div., 801, an un­
usual compliment, especially since it resulted in the re­
jection of the decision of Sir George Jessel in lie Macleay, 
L. E. 20 Eq., 186.

The significance of this proposition is regarded as a 
justification for the citation of the following pertinent 
decisions.

In Smith v. Clark, 10 Md., 186, a devise of a woodlot 
to the testator’s wife and daughters “ on the express con­
dition that the same is not at any time to be cleared or



34

converted into arable land,” and a further condition that 
the land “ shall be at all times held together by those 
who may be entitled to the same by virtue of the will,” 
was held to be void.

In McCullough’s Heirs v. Gilmore, 11 Pa. St., 370, the 
testator declared it to be his will and desire that a certain 
farm “ fall into the possession of W, laying this injunction 
and prohibition not to leave the same to any but the le­
gitimate heirs of W ’s father’s family at his W ’s decease.” 
This restraint on the power of alienation was held to be 
void.

In Bennett v. Chapin, 77 Mich., 527, it was held that 
when a restriction in a conveyance of a vested estate in 
fee simple, in possession or remainder, is against selling 
for a particular time, such restriction is invalid. Mr. 
Justice Long said:

“ Such restraints are not favored in the law. It is 
true that many restrictions or qualifications upon the 
rights of the devisee or grantee may be made effectual 
by making the estate itself dependent upon such con­
dition ; but where the estate granted is absolute, such 
restriction can impose no legal obligation upon the 
devisees, or limit their power over the estate, when 
the observance or violation of the restriction can 
neither promote nor prejudice any interest but their 
own. This rule was very fully discussed by this Court 
in Mandlebaum v. McDonell, 29 Mich., 87, and in 
support of this principle the Court cited Hall v. Tufts, 
18 Pick., 459; Bank v. Davis, 21 Id., 42; Brandon v. 
Robinson, 18 Yes., 429; Doebler’s Appeal, 64 Pa. St., 
9; Craig V. Wells, 11 N. Y., 315.

Aside from these reasons, however, we think the re­
strictions upon the sale cannot be upheld. ISTo such 
restrictions are valid. When a restriction in a con­
veyance of a vested estate in fee simple, in possession 
or remainder, is against selling for a particular time,



35

such a restriction is invalid. When a person is en­
titled absolutely to property, any provision postpon­
ing its transfer or payment to him is void. Gray, 
in his rules against Perpetuities, thus states the rule: 

‘Suppose property is given to trustees in trust to 
pay the principal to A when he reaches thirty. When 
any other person than A is interested in the prop­
erty, when, for instance, there is a gift over to B if 
A dies under thirty, the trustee will retain the prop­
erty for the benefit of B ; but when no one but A is 
interested in the property, when, should he die before 
thirty, his heirs or representatives would be entitled 
to it, when, in short, the direction for postponement 
has been made for A ’s supposed benefit, such direc­
tion is void, in pursuance of the general doctrine that 
it is against public policy to restrain a man in the 
use or disposition of the property in which no one but 
himself has any interest.’

The principle is generally held to be that all rights 
of property are alienable, and that a condition or re­
striction which would suspend all power of alienation 
for any length of time is inconsistent with the estate 
granted, and void.”

In Attioater v. Attwater, 18 Beavan, 330, a devise of cer­
tain real estate to A “to become his property on attain­
ing the age of twenty-five years, with the injunction never 
to sell it out of the family, but if sold at all it must be 
to one of his brothers hereinafter named,” wms held to be 
in restraint of alienation, and void.

In Billing v. Welch, Irish Rep., 6 Common Law, 88, a 
covenant by the grantee of land that he, his heirs and as­
signs would not alien, sell or assign to any one except his 
or their child or children without the license of the 
grantor, was declared void on the authority of the opinion 
of Lord Romilly in Attwater v. Attwater, supra.

In Schermerhorn v. Negus, 1 Denio, 148, a provision in



36

a devise to children that no part of the land should he 
aliened by any of the children or their descendants ex­
cept to each other or their descendants, was held bad.

To the same effect are the decisions in Johnson v. Pres­
ton, 226 111., 447, 462, and Pardue v. Givens, 54 N. C., 
306.

In Anderson v. Carey, 36 Ohio St., 506, the testator de­
vised a farm to his two sons, Thomas and Lincoln, upon 
condition that they should not be allowed to sell and dis­
pose of it until the expiration of ten years from the time 
his son Lincoln arrived at full age, except to one another, 
nor to mortgage or encumber it in any manner whatsoever 
except in the sale to one another. It was held that the 
restraint attempted to be imposed was void as repugnant 
to the devise and contrary to public policy. Mr. Justice 
Mcllvaine said:

“ Instead of giving to his sons an estate in the land 
less than a fee simple the intent and purpose was to 
give them the fee simple but to eliminate therefrom 
this inherent element of alienability for a limited 
period or to incapacitate his devisees, although sui 
juris, from disposing of their property for the same 
limited period, to wit, until the younger should ar­
rive at thirty-one years of age—each and both of 
which purposes was repugnant to the nature of the 
estate devised. By the policy of our laws it is of the 
very essence of an estate in fee simple absolute, that 
the owner, who is not under any personal disability 
imposed by law, may alien it or subject it to the pay­
ment of his debts at any and all times; and any at­
tempt to evade or eliminate this element from the 
fee simple estate, either by deed or by will, must be 
declared void and of no force. * * * In holding
that such restraint is repugnant to the nature of the 
estate devised and is void as against public policy, 
which, in this State, in the interests of trade and com-



27

procedure was pursued in Smoot v. Heyl, 227 U. S., 518, 
and in Walker v. Gish, 260 U. S., 447.

In the first of these cases it was also decided that the ap­
peal brought the entire case here, thus enabling this Court 
to determine not merely the question of constitutionality, 
but all other questions involved in the record.

Horner v. United States, No. 2, 143 U. S., 570;
Penn Mutual Life Ins. Go. v. Austin, 168 U. S., 

695.

This is in conformity with the procedure under Section 
238 of the Judicial Code as laid down in numerous cases.

Pursuing the procedure thus authorized we will proceed 
to discuss other questions presented by the record and set 
forth in the assignments of error—

II.

The covenant the enforcement of which has been 
decreed by the Courts below Is contrary to public 
policy.

(1) The public policy of this country is to be ascer­
tained from its Constitution, statutes and decisions, and 
the underlying spirit illustrated by them.

The constitutional provisions considered under Point I 
unmistakably indic;ite that the segregation of colored peo­
ple from white people and the statutory prohibition 
against the occupancy by colored persons of houses in re­
stricted areas, are contrary to the genius of our institu­
tions. An act which the legislature is prohibited from 
doing or authorizing must in its essence, necessarily be 
opposed to public policy. So, likewise, whatever the leg­
islative branch of the Government inhibits must he an 
offence against public policy.



28

As has been shown, Section 1978 of the Revised Stat­
utes declares that all citizens of the United States shall 
have the same right in every State and Territory as is en­
joyed by white citizens thereof, to inherit, purchase, lease, 
sell, hold and convey real and personal property. One 
would suppose that, if in the face of such a declaration 
a contract is entered into calculated to prevent the inheri­
tance, purchase, lease, sale, holding and conveyance of 
real property by colored citizens of the United States in 
any State or Territory, such a contract is repugnant to 
our policy. It certainly was not intended that, if the white 
citizens of Washington agreed among themselves that 
they would not sell or lease any real property lying within 
the territorial limits of that city to a colored person, such 
an agreement would be enforceable as consonant with the 
controlling public policy.

And so when this Court has announced that legislation 
looking to the prevention of the acquisition of realty with­
in a specified district by colored persons, is contrary to 
the Constitution and laws, it would seem to follow that 
a covenant between the white residents of that same dis­
trict intended to prevent the acquisition of realty by col­
ored persons, was contrary to our public policy.

In Vidal v. Girard’s Executors, 2 How., 127, Mr. Justice 
Story pointed out that the policy of Pennsylvania on a 
particular subject was indicated by its Constitution and 
laws and judicial decisions. This view has been frequently 
adopted.

Hartford Fire Ins. Co. v. Chicago, M. & St. P. 
R. R. Co., 70 Fed. Rep., 201, 202;

Hollins v. Drew Theological Seminary, 95 Y. Y., 
172;

Cross v. United States Trust Co., 131 1ST. Y., 344;
People V. Hawkins, 157 1ST. Y., 12.

In Messer smith v. American Fidelity Co., 232 N. Y., 
161, 163, Judge Cardozo said:



39

Winsor v. Mills, 157 Mass., 362; 32 N. E. Rep., 
352;

Latimer v. Waddell, 119 1ST. C., 370; 26 S. E. Rep.,
122;

Re Schilling, 102 Mich., 612;
Zillmer v. Landgutb, 94 Wis,, 607; 69 if. W. Rep., 

568;
Jones v. Port Huron Engine & Thresher Go., 171 

111., 502; 49 if. E. Rep., 700.

That the natural operation of such a covenant as that 
under consideration is opposed to the public welfare, is il­
lustrated by the allegations of the bill of complaint. It 
there appears (Rec., pp. 4, 5) that after Mrs. Corrigan had 
entered into the contract to sell her residence to Mrs. Cur­
tis, a number of the other parties to the covenant protested 
against her act. Whereupon Mrs. Corrigan wrote to these 
persons stating “ in effect that her personal interests made 
it imperative that she dispose of said lands and premises at 
once.” She offered, however, to sell the premises to them 
on the same terms as were provided in the contract of sale 
to Mrs. Curtis, provided they would indemnify her, but the 
plaintiff alleges “that such proposal last named has not 
been and will not be accepted by plaintiff, nor, so far as 
plaintiff is aware and believes, by any of the other parties 
to said indenture or covenant.”

By reason of this covenant Mrs. Corrigan, therefore, 
however imperative her needs, is prevented from selling 
her property to a willing purchaser at a price which her 
co-covenantors are unwilling to pay. She is thus at their 
mercy, as are her creditors. The market value of her prop­
erty is consequently seriously impaired, and as the years 
go on and surrounding conditions are likely to change, its 
marketability may become more and more lessened, and 
with it its assessable value, to the serious detriment of the 
public.



40

(3) Independently of our public policy as deduced from 
the Constitution, statutes and decisions, with respect to 
the segregation of colored persons and the fact that the 
covenant sued upon is in restraint of alienation, we con­
tend that such a contract as that now under consideration 
militates against the public welfare.

There can be no permissible distinction between citi­
zens based on race, creed or color if we are to remain a 
free and harmonious nation. To have it appear in the 
judicial annals of onr courts that one part of our citizenry 
may enter into contracts which are derogatory to another 
part, is intolerable, unless we are to abandon our most 
cherished traditions. If the different component elements 
constituting the body of American citizens can vote to­
gether and serve under the same flag, perform the same 
civic duties, pay the same taxes and cooperate in the de­
velopment of onr national resources, to say that a part 
of them shall not breathe the same air or live in the same 
neighborhood or pursue the same business as the other 
part, because they are colored, is to sow the seeds of dis­
cord and would tend to destroy that unity and harmony 
which should prevail in a free country.

The restrictive covenant in the present case relates to 
the ownership and occupation of property in a residen­
tial district. If such a covenant is valid, then what would 
prevent similar covenants with respect to districts devoted 
to commerce or manufacture? What would there he to 
prevent a similar covenant concerning the sale or holding 
of store property on Fifth Avenue or Broadway in the 
City of New York, on Pennsylvania Avenue in the City 
of Washington, on Chestnut Street in the City of Phila­
delphia, on State Street in the City of Chicago, to negroes 
or to any person or persons of the negro race or blood? 
What would prevent such a contract with regard to land 
devoted to mining or to agriculture, to forestation or to 
any other lawful human activity?

But why need this discussion he limited to a covenant



41

restricting tlie sale, conveyance, lease or gift of land to 
negroes or to any person or persons of the negro race or 
blood? Following the precedent created by the decisions 
rendered in the Court below, similar covenants have made 
their appearance in various parts of the country restric­
tive of sales and leases of land not only to negroes, but 
also to Jews. It will not take long before the prohibition 
will be extended to Catholics, and the entire Ku Flux 
Klan program of elimination might be made effective by 
means of restrictive covenants. By means of like cove­
nants differences might be made between rich and poor, 
between members of different churches, between the ad­
herents of different political parties, between the descend­
ants of those of different origins, between native and natu­
ralized citizens, between those who have come from the 
Forth and the South, the East and the West. It would 
lead to positive public misfortune and were our Courts 
to sanction such covenants it would give rise to untold 
evils.

It is also significant that the covenant forbids the use 
or occupancy by or the sale, conveyance, lease, rental or 
gift to “any person or persons of the negro race or blood.” 
That would mean that a person who has flowing in his 
veins a single corpuscle of negro blood would come within 
the prohibition of the covenant. It would have included 
Alexander Dumas, and thousands of men and women, one 
of whose remote ancestors, not only of an antecedent third 
or fourth generation, but of the tenth generation back, 
might have been a negro. How is that damning taint to 
be ascertained? Who is to determine when negro blood 
changes its color? Are the courts to make the miscro- 
scopic and biological tests which will determine whether 
an intending purchaser or occupant of premises coming 
within the scope of this covenant is to be precluded from 
the ownership or occupancy of so sanctified a piece oif 
land?

Let us now consider the decisions bearing on the aspect



42

of the covenant coming within this subdivision of our 
argument.

We have already referred to Gondolfo v. Hartman, 49 
Fed. Rep., 181, as discountenancing such covenants.

A similar case is Title Guarantee & Trust Co. v. Gar- 
rott, 42 Cal. App., 150, 152, where the Court refused to 
enforce a condition in a deed providing for forfeiture in 
case of the sale or lease of property to any person of 
African, Chinese or Japanese descent.

At page 157 the Court said:

“ The rule that conditions restraining alienation, 
when repugnant to the estate conveyed, are void, is 
founded on the postulate that the conveyance of a 
fee is a conveyance of the whole estate, that the right 
of alienation is an inherent and inseparable quality 
of an estate in fee simple, and that, therefore, a con­
dition against alienation is repugnant to and incon­
sistent with, the estate conveyed. To transfer a fee 
and at the same time restrain the free alienation of 
it is to say that a party can grant and not grant, in 
the same breath. But the rule is not founded exclu­
sively on this principle of natural law. It rests also 
on grounds’ of clear public policy and convenience in 
facilitating the exchange of property, in simplifying 
its ownership and in freeing it from embarrassments 
which are injurious not only to the possessor, but to 
the public at large.”

At page 160:

“ If the continuation of the estate in the grantee 
may be made to depend upon his not selling or leasing 
to persons of African, Chinese, or Japanese descent, 
it may be made to depend upon his not selling or 
leasing to persons of Caucasian descent, or to any 
but Albinos from the heart of Africa, or blond Eski­



43

mos. It is impossible on any known principle to say 
that a condition not to sell to any of a very large class 
of persons, such as those embraced within the cate­
gory of descendants from African, Chinese, or Japa­
nese ancestors, shall not be deemed an unreasonable 
restraint upon alienation, but that the proscribed 
class may be so enlarged that finally the restriction 
becomes unreasonable and void. Where shall the di­
viding line be placed? What omniscience shall tell 
us when the restraint passes from reasonableness to 
unreasonableness ? Who can know whether he has 
title to land until the question of reasonableness has 
been passed upon by the court of last resort? No 
matter how large or how partial and infinitesimal the 
restraint may be; the principles of natural right, the 
reasons of public policy, and that principle of the com­
mon law which forbids restraints upon the disposi­
tion of one’s own property, are as effectually over­
thrown by the one as by the other.”

A petition to have the case heard in the California Su­
preme Court was unanimously denied September 8, 1919.

In the opinion subsequently rendered in Los Angeles In­
vestment Co. v. Gary, 181 Cal., 680, which will be pres­
ently discussed, the Court referred in terms of praise and 
approval to the opinion of Judge Finlayson in Title Guar­
antee & Trust Go. v. Garrott, adding:

“ The decision in that case was presented to us for 
consideration by a petition for rehearing, and the peti­
tion was denied because of our conclusion that the 
decision was correct, a conclusion from which wTe see 
no reason for departing.”

Consequently the Supreme Court of California likewise 
decided that a condition or covenant that property con­
veyed “ shall not be sold, leased or rented to one not of



u
the Caucasian race until after January 1, 1930,” was void 
at common law as against public policy, irrespective of 
the fact that tlie restraint on alienation was but partial 
and was limited to persons of a particular class or to a 
comparatively brief period.

In State v. Darnell, 166 N. C., 300, 302, 303, 81 S. E. 
Rep., 338, an ordinance was adopted by the Board of 
Aldermen of Winston, N. C., pursuant to a provision of 
the city charter authorizing them to pass any ordinance 
which they deemed proper for the good order and general 
welfare of the city if it does not contravene the laws and 
Constitution of the State, which made it unlawful for 
any colored person to occupy as a residence any house 
upon any street on which a greater number of houses are 
occupied by white people than are occupied by colored 
people, and containing a similar provision as to whites. 
This ordinance was declared void in an interesting opinion 
by Chief Justice Clark, who pointed out that such legisla­
tion was similar in its character and tendency to that 
which years ago prescribed in Ireland limits beyond which 
the native Irish or Celtic population could not reside, thus 
creating what was called the “Irish Pale,” and similar 
more recent legislation in Czaristic Russia, where the Jews 
were restricted in the right of residence in a limited terri­
tory known as the so-called Jewish Pale of Settlement. In 
each instance the consequences were tragic and resulted 
in infinite harm, and constituted powerful incentives to 
disorder and revolution. The following passage in his 
opinion calls attention to the underlying vice of the ordi­
nance then under consideration, in terms which we regard 
as equally applicable to the covenant involved in the 
present case:

“We do not think that the authority conferred by 
Section 44 of the Charter to enact ordinances for the 
‘general welfare of the city’ can justly be construed 
as intended by the Legislature to authorize an ordi­



45

nance of this kind which establishes a public policy 
which has hitherto been unknown in the legislation 
of our State. To do so would give the words ‘general 
welfare’ an extended and wholly unrestricted scope 
which we do not think the Legislature could have con­
templated in using those words. If the Board of Al­
dermen is thereby authorized to make this restriction 
a bare majority of the board could, if they may ‘deem 
it wise and proper,’ require Republicans to live on 
certain streets, and Democrats on others, or that Pro­
testants shall reside only in certain parts of the town, 
and Catholics in another, or that Germans or people 
of German descent should reside only where they were 
in the majority, and that Irish and those of Irish 
descent should dwell only in certain localities, desig­
nated for them by the arbitrary judgment and per­
mission of a majority of the aldermen. They could 
apply the restriction as well to business occupations 
as to residences, and could prescribe the localities 
allotted to each class of people without reference to 
whether the majority already therein is of the pro­
scribed race, nationality, or political or religious 
faith.

“Besides, an ordinance of this kind forbids the 
owner of property to sell or to lease it to whomsoever 
he sees fit, as well as forbids those who may be desir­
ous of buying or renting property from doing so where 
they can make the best bargain. Yet this right of 
disposing of property, the jus cRsponendi, has always 
been held one of the inalienable rights incident to 
the ownership of property which no statute will be 
construed as having power to take away.”

It has been frequently laid down that even a restriction 
as to the manner of using land, in order to be valid, must 
not be contrary to public policy.

Whitney V. Union Railway Co., 11 Gray, 359;



46

DeGray v. Monmouth Beach Club House Co., 50 
N. J. Eq., 329, 24 Atl. Rep., 388;

Brewer v. Marshall, 19 1ST. J. Eq., 537.

The Covenant is Not Ancillary to the Main Purpose of a 
Valid Contract and therefore is an Unlawful 
Restraint.

Thus far we have treated the covenant the enforcement 
of which the Courts below have decreed, in its general as­
pects. It now becomes important to call attention to an 
outstanding fact, namely, that at the time when the cove­
nant was entered into, the various parties who executed 
it, severally owned the twenty-four parcels of lands de­
scribed therein and on which at the time there had been 
erected separate dwelling houses. None of them at the 
time of its execution and in connection therewith acquired 
from any of the others title to the lands which they re­
spectively owned. None of them, had entered into a con­
tract with the others to which the covenant was an inci­
dent or ancillary. We have, therefore, an agreement be­
tween twenty-four adjoining landowners whereby they 
agreed among themselves not to sell, convey, lease, rent 
or give the premises owned by them respectively to ne­
groes or to any person Or persons of the negro race or 
blood.

While it may be claimed that this covenant was not one 
relating to trade or commerce, in the strict sense of the 
term, nevertheless, in these later days, the tendency of 
the law has been to encourage the transferability of real 
estate with the same facility as has long existed in the 
case of personalty. The public policy of today favors the 
ready transfer of realty from one person to another. In 
Manierre v. Willing, 32 R. I., 104; 78 Alt. Rep., 519, Mr. 
Justice Parkhurst, quoting the opinion of Mr. Justice 
Christiancy in Mandlebaum v. McDonell, 29 Mich., 79, 
expressed the prevailing policy when he said:



47

“ and certainly, in a country like ours, where lands 
are as much an article of sale and traffic as personal 
property, and the policy of the State has been to 
encourage both the acquisition and easy and free 
alienation of lands, such restrictions ought not be en­
couraged by the Courts.”

The same idea was expressed by Mr. Justice Garber in 
Test Oil Co. v. LaTourrette, 19 Okla., 214, 91 Pac. Rep., 
1025, 1028:

“In this country land is one of the chief objects of 
trade and investment—‘mud and civilization go to­
gether’. As the latter advances the transfer of the for­
mer becomes' more frequent. Just in the degree that 
the temporary owner of a tract of land is permitted to 
impress his notions or caprices upon the fee restricting 
its future alienation, just in that degree does it ham­
per the terms and facility of its exchange in trade and 
destroy that continuance which has given it the repu­
tation of being the subject of safe and sound invest­
ment. Hence restrictions upon the alienation of the 
fee in land are repugnant to trade and commerce, and 
are looked upon with disfavor by the law.”

Moreover, as has been shown under the preceding sxib- 
division of this argument, long before the rule of public 
policy which forbade restraint of trade in merchandise 
or the like, came into being, contracts in restraint of the 
alienation of realty had been treated as opposed to public 
policy. Hence it is our contention that the covenant now 
under consideration, which, as an independent agreement 
between the parties thereto, limits the sale of land or its 
occupancy to a certain class of human beings and excludes 
other of God’s children from the right to occupy or pur­
chase it, in the aspect of public policy comes at least 
within the rules applicable to the restraint of trade in 
personalty.



48

In United States v. Addyston Pipe Go., 85 Fed. Rep., 
271, affd. 175 U. S., 211, Mr. Chief Justice Taft, then writ­
ing for the Circuit Court of Appeals for the Sixth Circuit, 
classified the decisions in which covenants in partial re­
straint of trade had been upheld. They involved agree­
ments (1) by the seller of property or business not to bom- 
pete with the buyer in such a way as to derogate from the 
value of the property or business sold; (2) by a retiring 
partner not to compete with the firm; (3) by a partner 
pending the partnership not to do anything to interfere by 
competition or otherwise with the business of the firm; (4) 
by the buyer of property not to use the same in competi­
tion ivith the business retained by the seller; and (5) by 
an assistant, servant or agent not to compete with his mas­
ter or employer after the expiration of his time of service.

Referring to this classification, it was added (p. 281) :

“Before such agreements are upheld, however, the 
Court must find that the restraints attempted thereby 
are reasonably necessary (1, 2 and 3) to the enjoy­
ment by the buyer of the property, good-will or inter­
est in the partnership bought;  or (4) to the legitimate 
needs of the existing partnership; or (5) to the pre­
vention of possible injury to the business of the seller 
from the use by the buyer of the thing sold; or (6) to 
protection from the danger of loss to the employer’s 
business caused by the unjust use on the part of the 
employee of the confidential knowledge acquired in 
such business. * * * It would be stating it too 
strongly to say that these five classes of covenants in 
restraint of trade include all of those upheld as valid 
at the common law; but it would certainly seem to 
follow from the tests laid down for determining the 
validity of such an agreement that no conventional 
restraint of trade can be enforced unless the covenant 
embodying it is merely ancillary to the main purpose 
of a lawful contract, and necessary to protect the cove­



49

nantee in the enjoyment of the legitimate fruits of the 
contract, or to protect him from■ the dangers of an im- 
just use of those fruits by the other party. In Horner 
v. Graves, 7 Bing., 735, Chief Justice Tindal, who 
seems to be regarded as the highest English judicial 
authority on this branch of the law (see Lord Mac- 
naghten’s judgment in Nordenfeldt v. Maxim Norden- 
feldt Co. (1894) App. Cas. 535, 567) used the follow­
ing language:

‘We do not see how a better test can be applied to 
the question whether this is or is not a reasonable re­
straint of trade than by considering the restraint is 
such only as to afford a fair protection to the interests 
of the party in favor of whom it is given, and not so 
large as to interfere with the interests of the public. 
Whatever restraint is larger than the necessary pro­
tection of the party requires can be of no benefit to 
either. It can only be oppressive. It is, in the eye of 
the law, unreasonable. Whatever is injurious to the 
interests of the public is void on the ground of public 
policy.’

This very statement of the rule implies that the con­
tract must be one in which there is a main purpose, to 
which the covenant in restraint of trade is merely an­
cillary. The covenant is inserted only to protect one 
one of the parties from the injury which, in the execu­
tion of the contract or the enjoyment of its fruits, he 
may suffer from the unrestrained competition of the 
other. The main purpose of the contracts suggests the 
measure of protection needed, and furnishes a suffi­
ciently uniform standard by which the validity of 
such restraints may be judicially determined.”

See also 13 Corpus Juris, title “ Contract,”  Section 420, 
page 477, and cases cited.

In the present case there is an utter absence of those ele­
ments which in the case cited were deemed to justify cove­
nants in partial restraint of trade.



50

That this principle is applicable to restrictive covenants 
affecting real estate appears from the decisions collated 
in 3 Williston on Contracts, Sec. 1642.

This doctrine does not owe its existence to the Sherman 
Act, or any other similar legislation. It is a principle 
enforced by the courts both at common law and in equity, 
long prior to such legislation.

As applicable to this discussion, we take the liberty of 
quoting extensively from the opinion of Mr. Justice 
Hughes in Dr. Miles Medical Co. v. Park & Sons Co., 220 
U. S., 373. The question there involved was as to whether 
a manufacturer, in connection with the sale of his product, 
may affix conditions as to the use of the article sold or as 
to the prices at which purchasers may dispose of it. There 
the condition was ancillary to a sale. Yet it was held, for 
reasons about to be pointed out, that such conditions were 
contrary to public policy, and, therefore, void. Mr. Jus­
tice Hughes said:

“But because a manufacturer is not bound to make 
or sell, it does not follow that in case of sales actually 
made he may impose upon purchasers every sort of re­
striction. Thus a general restraint upon alienation is 
ordinarily invalid. ‘The right of alienation is one of 
the essential incidents of a right of general property 
in movables, and restraints upon alienation have been 
generally regarded as obnoxious to public policy, 
which is best subserved by great freedom of traffic in 
such things as pass from hand to hand. General re­
straint in the alienation of articles, things, chattels, 
except when a very special kind of property is in­
volved, such as a. slave or an heirloom, have been gen­
erally held void. ‘If a man,’ says Lord Coke, in Coke 
on Littleton, section 360, ‘be possessed of a horse or 
any other chattel, real or personal, and give his whole 
interest or property therein, upon condition that the 
donee or vendee shall not alien the same, the same is 
void, because his whole interest or property is out of



51

Mm, so as lie liatli no possibility of reverter; and it is 
against trades and traffic and bargaining and con­
tracting between man and man.’ Park v. Hartman, 
153 Fed. Rep., 24. See also Gray on Restraints, on 
Alienation, Sections 27, 28.”

At page 406 tbe opinion continues:

“With respect to contracts in restraint of trade, the 
earlier doctrine of the common law has been substan­
tially modified in adaptation to modern conditions. 
But the public interest is still the first consideration. 
To sustain the restraint, it must be found to be reason­
able both with respect to the public and to the parties 
and that it is limited to what is fairly necessary, in the 
circumstances of the particular case, for the protec­
tion of the covenantee. Otherwise restraints of trade 
are void as against public policy. * * * ‘The true view 
at the present time’, said Lord M’acnaghten in N&rden- 
feldt v. Maxim Nordenfeldt & Go., 1904, A. 0., page 
565, ‘I think, is this: The public have an interest
in every person’s carrying on his trade freely: so has 
the individual. All interference with individual lib­
erty of action in trading, and all restraints of trade of 
themselves, if there is nothing more, are contrary to 
public policy, and therefore void. That is the general 
rule. But there are exceptions: restraints of trade and 
interference with individual liberty of action may be 
justified by the special circumstances of a particular 
case. It is a sufficient justification, and indeed it is 
the only justification, if the restriction is reasonable—- 
reasonable, that is, in reference to the interests of the 
parties concerned and reasonable in reference to the 
interests of the public, so framed and so 'guarded as 
to afford adequate protection to the party in whose 
favor it is imposed, while at the same time it is in no 
way injurious to the public.’



52

The present case is not analogous to that of a sale of 
good will, or of an interest in a business, or of the 
grant of a right.to use a process of manufacture. The 
complainant has not parted with any interest in its 
business or instrumentalities of production. It lias 
conferred no right by virtue of which purchasers of its 
products may compete with it. It retains complete 
control over the business in which it is engaged, man­
ufacturing what it pleases and fixing such prices for 
its own sales as it may desire. Nor are we dealing 
with a single transaction, conceivably unrelated to the 
public interest. The agreements are designed to main­
tain prices, after the complainant has parted with the 
title to the articles, and to prevent competition among 
those who trade in them.”

Let us apply the principle of this decision to the case 
now under consideration. Here the various covenantors 
merely combined among themselves to restrain one an­
other and their respective heirs and assigns either per­
manently or for a period of twenty-one years, from selling 
property belonging to them respectively, in the ownership 
of which they continued, to negroes or any person or per­
sons of the negro race or blood. They thereby limited the 
number of possible purchasers. The effect would be either 
unduly to depress or unduly to increase the price at which 
the property might be sold. At all events it tended to 
restrict competition. The covenant happened to exclude 
from the list of possible purchasers or occupants negroes 
or persons of the negro race or blood. That excluded up­
wards of ten million citizens of the United States, or ten 
per cent, of the entire population. If Catholics and Jews 
had been added to the number of those blacklisted, if 
would have limited the possible purchasers to the extent of 
upwards of twenty million more of our citizens, or an 
additional twenty per cent, of the population.

If a covenant like that under consideration, entered into



53

by white persons, is valid, then a corresponding covenant 
by colored land-owners restricting the sale of their prop­
erty so as to exclude all white persons or those of the 
Caucasian race or blood as possible purchasers, would be 
equally permissible. That would affect at least 100,000,000 
of our population. Is that, not a reductio ad ahswrdum of 
the contention that covenants of this character are not. 
opposed to public policy?

If the various dealers in woolen cloth or shoes or pre­
pared articles of food carrying on business in Washington 
had covenanted with each other not to sell or to give any of 
their products to these several classes of human beings 
coming within the ban of their displeasure, it is believed 
that our courts would not long hesitate to declare such a 
covenant as contrary to public policy. How does the il­
lustration differ in principle from the covenant now under 
discussion? The fact that in the one case the covenant re­
lates to the acquisition of a habitation and in the other of 
articles of clothing or of food, does not constitute a valid 
ground for differentiation. As was said by Mr. Justice 
Holmes in Block v. Hirsh, 256 U. S., 156, “housing is a 
necessary of life.” It is as much a necessity for those of 
the negro race or blood as it is for those of the white race.

If covenants of this character are valid in relation to the 
property on one city block, they would be equally appli­
cable to a hundred, or, if there were so many, a thousand 
city blocks in the City of 'Washington, and since, as was 
said in the opinion in the case just cited, “ the space in 
Washington is necessarily monopolized in comparatively 
few hands” , the cumulative effect of such covenants would 
be to drive out of the City of Washington, and for that 
matter out of the District of Columbia, all or most of the 
persons of the negro race or blood whose bxisiness or occu­
pation or interest it is to pursue their respective vocations 
in that City or District as it is a matter of public interest 
that they should pursue their vocations there. Such a 
scheme is not an unheard of conception. It was attempted



54

in In re Lee Sing, 43 Fed. Rep., 359. According to the 
census of 1920 the white popualtion of the District num­
bered 326,860 and the negro population 109,966, or nearly 
a quarter of the entire population. It is also interesting 
to note parenthetically that the covenant would prac­
tically preclude the white owner of any one of the houses 
affected by it, to permit domestic servants of the negro 
race or blood to live upon his premises.

It surely cannot be said that our courts are more tender 
in their consideration for those affected by trade and com­
merce in personal property than they are for the welfare 
of those human beings who desire to establish homes and 
to acquire the ownership or the right of occupancy of a 
place which they may call their own.

Mrs. Curtis is certainly entitled to as much freedom 
from restraint upon her right to acquire a habitation where 
she and her family may lay their heads, as were the ven­
dees of the patent medicine of Dr. Miles Medical Company 
to be free from the restrictions as to price imposed by the 
vendor of that panacea. She should not for a moment be 
lost sight of in this controversy. Her liberty to acquire 
property is as much involved as is the liberty of Mrs. 
Corrigan to sell hers. The right of both of them to con­
tract with respect to the premises here in question is to 
be determined, that is, the right of disposition by the one, 
and the right of acquisition by the other.

In the aspect of the case now under discussion, namely, 
that of a covenant containing a restraint on the right 
of alienation or of use or occupation which is not inci­
dental to and in support of another contract, or a sale 
of property or of a business, it is a subject of serious con­
sideration as to whether such a covenant entered into, as 
in this case, by twenty-four different individuals, would 
not constitute a common law conspiracy. The decision 
in Gallan v. Wilson, 127 U. S., 540, 555, 556, would so 
indicate.

That case was cited in Granada Lumber Co. v. Missis­
sippi, 217 U. S., 440, 441, where Mr. Justice Lurton said:



55

‘‘But when the plaintiffs-in-error combine and agree 
that no one of them will trade with any producer or 
wholesaler who shall sell to a consumer within the 
trade range of any of them, quite another case is pre­
sented. An act harmless wdien done by one may be­
come a public wrong when done by many acting in 
concert, for it then takes on the form of conspiracy, 
and may be prohibited or punished if the result be 
hurtful to the public or to the individual against 
whom the concerted action is directed” (Gallon v. 
Wilson, 127 IT. S,, 555, 556).

To the same effect is Eastern States Lumber Assn. v. 
United States, 234 IT. S., 600, 614.

While it is true that in the first of these cases, the ques­
tion directly involved related to the constitutionality of a 
statute of Mississippi, and that the second was an action 
brought under the Sherman Anti-Trust Act, it is never­
theless believed that the principle invoked was one which 
related to a common law conspiracy.

(4) We are not unmindful of the eases relied upon in 
the court below to sustain the enforcement of this cove­
nant. We contend that these decisions are not only un­
sound but also distinguishable.

They are:
Los Angeles Investment Co. v. Gary, 181 Cal., 

680;
Queensboro Land Co. v. Cazeaux, 136 La., 724;
Koehler v. Rowland, 275 Mo., 573;
Parmalee v. Morris, 218 Mich., 625.

(a) So far as they undertake to sustain the validity of 
such a covenant as that now under discussion, we contend 
that the conclusions reached are erroneous, since they dis­
regard the legitimate scope and effect of the decision in 
Buchanan v. Worley and of Sections 1977 and 1978 of the 
Revised Statutes and the mischief that is inherent in such



56

a covenant. They fail to differentiate between restrictions 
in deeds which prohibit the use of property for certain pur­
poses, such as that considered in Cowell v. Springs Co., 100 
U. S., 57, and a covenant which constitutes a segregation 
of negroes from other citizens. They likewise overlook the 
distinction between such a case as the present and cases 
like Plessy v. Ferguson, 163 U. S., 537, and the Berea 
College Case, 211 IT. S., 45, which was fully pointed out in 
Buchanan v. Warley and in Carey v. City of Atlanta, 143 
Ga., 192.

(6) In Los Angeles Investment Co. v. Gary, supra, the 
Court as has already been pointed out, approved of the de­
cision in Title Guarantee & Trust Co. v. Garrott, supra, in 
so far as to hold that a condition or covenant in partial 
restraint on alienation, whether limited to a particular 
class of persons or to a comparatively brief period, was 
void because contrary to public policy. The Court, how­
ever, held that so much of the covenant which it then had 
under consideration as provided “nor shall any person or 
persons other than of Caucasian race be permitted to oc­
cupy said lot or lots,” was not a restraint upon alienation, 
but upon the use of the property, and was, therefore, 
valid.

The decision was by a divided court which consisted 
of five members, two of whom, Mr. Chief Justice Angel- 
lotti and Mr. Justice Lennon, having dissented. It like­
wise appears from the opinion of Mr. Justice Olney, that 
the Court had “not been favored by either brief or argu­
ment on behalf of the respondents,” that is, the parties 
against whom the condition was sought to be enforced. 
Moreover, the question of public policy in its broad aspects 
was not discussed.

The prevailing opinion further contains the striking 
qualification:

“ In connection with this decision it may be well 
to add that what we have said applies only to re­



57

straints upon use imposed by way of condition, and 
not to those sought to be imposed by covenant merely. 
The distinction between conditions and covenants is 
a decided one and the principles applicable quite dif­
ferent.”

Furthermore, it would seem that, if a restriction upon 
alienation is opposed to public policy, a covenant which 
would seek to prevent the use and occupancy of property 
by its owner would be equally contrary to public policy. 
It would tend to produce the same evils as those which 
brought about the rule with respect to restraints on aliena­
tion. The right to use and occupy property is an essential 
incident of ownership. It was so recognized in Buchanan 
v. Warley (see p. 7, supra). Of what avail would be the 
right to acquire the title of property, if the grantee may 
not take it into his possession and enjoy its use? If Mrs. 
Curtis could not be debarred from becoming the owner 
of the fee of the premises which Mrs. Corrigan was ready 
to convey to her, was her right of ownership to be limited 
to the leasing of the property to white tenants? The dis­
tinction sought to be drawn leads to a palpable absurdity.

(c) In Queensborough Land Go. v. Caseawx, supra, and 
Kohler v. Rowland, supra, the Court had under consid­
eration conditions in deeds which provided for forfeiture 
were the premises conveyed to be sold or leased by the 
grantee to a negro. In both cases it was held that the 
conditions did not constitute unlawful restraints upon 
the power of alienation.

Commenting on these decisions in his opinion in Title 
Guarantee & Trust Co. v. Garrott, Mr. Justice Finlayson 
said :

“With neither of them do we agree. The Louisiana 
case was decided in accordance with the principles of 
the civil law, and can throw but little, if any, light 
upon the construction of our Code provision, based, 
as it is, on the common law of England—a body of 
law that, ever since the statute quia- emptores, has



58

more and more treated land as an article of sale and 
traffic, as much so as personal property. In the Mis­
souri ease the Court in one brief paragraph disposes 
of this difficult question out of hand, citing but one 
case, Cowell v. Colorado Springs Co., 100 U. S., 55, to 
sustain its statement that, ‘it is entirely within the 
right and power of the grantor to impose a condition 
or restraint upon the power of alienation in certain 
cases to certain persons, or for a certain time, or for 
certain purposes.’ In short, the Missouri court’s deci- 
cision is based upon a dictum of Mr. Justice Field— 
a dictum by one of the country’s most learned jurists, 
it is true, but a dictum nevertheless which, so far as 
it refers to a time limitation upon alienation, is con­
trary to all the well-reasoned cases, such as Handle- 
baum v. McDonell, supra, and in so far as it refers 
to restraints that are partial as to persons or classes 
of persons, is, we believe, contrary to logic and con­
trary to the clear implication of the Supreme Court 
of this State in Murray v. Green, 61 Cal., 367, 368, 
that any restraint whatever upon the power of aliena­
tion, however partial or temporary, or of whatever 
character, is violative of Section 711 of our Civil 
Code, and, furthermore, it is dictum that is pregnant 
with uncertainties that necessarily would produce the 
greatest inconvenience in the world of trade and com­
merce, for no one could say whether any particular 
restriction was reasonable until the question had been 
litigated to the court of last resort, and no judge could 
know what standard of certainty should be employed 
to determine the question.”

Further referring to Cowell v. Colorado Springs Co., 
Mr. Justice Finlayson pointed out:

“ What that learned jurist (Mr. Justice Field) said 
about restraint upon alienation was dictum pure and



59

simple and not in accord with the weight of authority 
nor the better reasoned cases. That that part of the 
excerpt from the opinion of Mr. Justice Field Avherein 
he animadverts upon restraints upon alienation, is dic­
tum, the Federal Supreme Court itself has declared 
in the subsequent case of Potter v. Couch, 141 U. S., 
315.”

In this connection it is likewise proper to refer to the 
comments of Professor Gray upon Cowell v. Springs Co., 
and other similar cases, in Sections 40, 52-54 of the second 
edition of his scholarly work on “ Restraints on the Aliena­
tion of Property.”

(d) Parmalee v. Morris, supra, like Los Angeles Invest­
ment Co. v. Gary, Kohler v. Rowland and Queensborough 
Land Co. v. Cazeaux, was a case arising on a condition con­
tained in a deed which conveyed property which was the 
subject of the restriction. In neither of these cases was 
there a covenant between independent owners of land each 
of whom had acquired a title free from condition or i*e- 
striction of the character sought to be created. Moreover, 
Parmalee v. Morris was decided on the authority of the 
other three cases, and, therefore, depends upon the sound­
ness of the reasoning of those cases, which, we contend, 
does not subserve the public welfare.

The opinion of Mr. Justice Moore in Parmalee v. Morris 
seems to proceed on a misunderstanding of a legitimate 
argument presented in opposition to the validity of such a 
condition. The fallacy of the conclusion reached becomes 
evident from these excerpts from the opinion:

“ Suppose the situation was reversed and some negro 
who had a tract of land platted it and stated in the 
recorded plat that no lot should be occupied by a Cau­
casian, and that the deeds that were afterwards ex­
ecuted contained a like restriction; would any one 
think that dire results to the white race would fol­
low an enforcement of the restriction?”



60

We answer that such a restriction would be as vicious 
as that of which we are now complaining. If the negroes 
possessed the wealth of the Caucasians and could acquire 
property just as the Caucasians are now enabled to acquire 
it, would it not lead to unfortunate consequences if such 
a condition were aimed at a Caucasian by a negro?

Let us continue the argument to its legitimate conse­
quences, and suppose that it was a Catholic who had con­
veyed lands with the condition that it should not be oc­
cupied by a Protestant, or vice versa, or if one of German, 
Irish, French or Italian descent had conveyed property on 
the condition that it was not to be occupied by an English­
man or a Scotchman or by one who was a native of New 
England, or California, or Iowa, or Tennessee. Would it 
not be said at once that such a restriction boded mischief 
to the public good?

The opinion continues:

“ The issue involved in the instant case is a simple 
one, i. e., shall the law applicable to restrictions, as to 
occupancy contained in deeds to real estate be en­
forced, or shall one be absolved from the provisions 
of the law simply because he is a negro?”

Our answer is that the provision is void, not “ simply” 
because the person against whom it is sought to be en­
forced is a negro, but because it is contrary to the genius 
of our American institutions, to the spirit of the Consti­
tution, and to the peace, quiet, good order, unity, harmony 
and dignity of the people of the United States.

The attack is made on this covenant because it is op­
posed to the fundamental principles on which our Gov­
ernment rests, that all men are created equal and that 
they are entitled to the protection of their lives, their 
liberty, and their property. It is believed that our courts 
will not, by their decrees, effectuate a purpose which de­
stroys our cherished traditions and which would recognize



61

and tend to create a system of caste. The moment that 
there is a differentiation in our courts between white and 
black, Catholic and Protestant, Jew and non-Jew, hatreds 
and passions will inevitably be aroused, and that which 
has been most noble and exalted and humane in Ameri­
can life will have been shattered. Great as are the mental 
and spiritual sufferings of those against whom the shafts 
of prejudice and intolerance are aimed, the lasting in­
jury is, however, inflicted upon the civilization of a coun­
try which connives at a covenant such as that which has 
been enforced by the decrees here sought to be reviewed. 
Mrs. Curtis may well say to the covenantors, in the words 
of the unknown Negro poet celebrated by Thomas Went­
worth Higginson:

“ I go to de jedgment in de evenin’ of de day
When I lay my body down,
An’ my soul an’ your soul will meet in de day
When I lay dis body down.”

(5) Here the appellee has resorted to a court of equity 
to enforce a covenant which, so far as Mrs. Curtis is con­
cerned, who was a stranger to the covenant, is oppressive 
and unreasonable and lacking in equity.

She was not a party to the agreement. She is a victim 
of its prohibitions. It is an impairment of her right to 
acquire real property as conferred by Section 1978 of the 
Revised Statutes, and, consequently, it is believed that a 
court of equity should not make itself a party to effectuate 
the scheme whereby it is sought to deprive her of the rights 
secured to her by the Constitution and the statutes of the 
United States and its public policy.

4 Pomeroy’s Equity Jurisprudence, 3d ed., Secs.
1404, 1405;

Cathcart v. Robinson, 5 Peters, 263;
Pope Mfg. Co. v. Gormully, 144 U. S., 236, 237;
Curran v. Holyoke Water Co., 116 Mass., 90.



62

III.

It is respectfully submitted that the decrees appealed 
from should be reversed and the motion to dismiss the 
bill of complaint granted.

JAMES A. COBB,
HENRY E. DAVIS, 
WILLIAM H. LEWIS, 
JAMES P. SCHICK,

Attorneys for Appellants.
Mookfield Storey,
Louis Marshall,
A rthur B. Spingarn,
Herbert K. Stockton, 

of Counsel.