McGhee v. Sipes Petition and Brief in Support of Petition for Writ of Certiorari

    Supreme (tart of %  Mnlttb States
October Term, 1946

No.

Orsel M cG hee and M in n ie  S. M cG hee , 
Ms wife, Petitioners,

v.

B e n ja m in  J. S ipes and A n n a  C. S ipes, 
J ames A . C oon and A ddie A . Coon , 
et al., Respondents.

PETITION AN D  BRIEF IN SUPPORT OF PETITION 
FOR W R IT OF CERTIORARI TO THE SUPREME 

COURT OF MICHIGAN

F rancis D e n t ,
W illis M. G raves,

446 E. Warren Ave., 
Detroit, Michigan,

T htjrgood M arshall,
20 West 40th Street, 
New York 18, New York, 

Attorneys for Petitioners.

S pottswood W . R obinson , III 
Richmond, Virginia,

M arian  W y n n  P erry,
New York City, New York, 

Of Counsel.



I N D E X

PAGE

Petition for Writ of Certiorari_______________________  1

A. Jurisdiction _____________________________ r_____  2

B. Summary Statement of Matter Involved_____  2

0. Questions Presented__________________________  4

D. Beasons Belied on for Allowance of W rit______ 5

Conclusion_______________________________________  7

Brief in Support of Petition__________________ ______  9

Opinion of Court Below _,_______ ____________ __ 9

Jurisdiction_________________________ .____________  9

Statement of the C ase_____________ ,_____________  10

Errors Below Belied IJpon H e re _________________  10

Summary of Argument ___________ ___'___________  10

Argument:
I. Judicial Enforcement of the Agreement in Ques­

tion Is Violative of the Constitution and Laws 
of the United States________________________ 11

A. The Bight of a Citizen to Occupy, Use and 
Enjoy His Property Is Guaranteed by the 
Constitution and Laws of the United States 11



11
PAGE

B. The State, Through the Courts Below, Has
Been the Effective Agent in Depriving Peti­
tioners of Their Property, and the Exercise 
of Their Constitutionally Protected Rights 
Therein___________________________________  11

C. Action by a State, Through Its Judiciary,
Prohibiting or Impairing, on Account of 
Race or Color, the Right of a Person to Use, 
Occupy and Enjoy His Property Is Violative 
of the Constitutional Guarantee of Due 
Process___________________________________  13

D. The Agreement in its Inception was Subject
to Constitutional Limitations Upon the 
Power of the Courts to Enforce it__________  17

E. The Issue Here Presented Has Never Been
Decided by This C ourt____________ :_______ 19

II. A  Restriction Against the Use of Land by Mem­
bers of Racial Minorities Is Contrary to Public
Policy of the United States____________________ 23

A. The Public Policy of the United States____ 23

B. The Demonstrable Consequences of Racial
Zoning by Court Enforcement of Restrictive 
Covenants are Gravely Injurious to the Pub­
lic Welfare _______________________________ 28

Conclusion 36



Table of Cases and Authorities Cited in Brief.

PAGE

Allen v. Oklahoma City, 175 Okla, 421, 52 F. (2d) 1054 15
American Federation of Labor v. Swing, 312 U. S. 321 16
Bakery Drivers Local v. Wohl, 315 U. S. 769_________  16
Bowen v. City of Atlanta, 159 Gta. 145, 125 S. E. 199._ 15
Bridges v. California, 314 U. S. 252__________________ 16
Brinkerhoff Faris Co. v. Hill, 281 U. S. 673___________  17
Buchanan v. Warley, 245 TJ. S. 60______11,13,14,15,17,19
Civil Bights Cases, 109 U. S. 3_______________________  14
Cantwell v. Conn., 310 U. S. 296______________________  16
Chicago B. & 0. B. Co. v. Chicago, 166 U. S. 226_____15,16
City of Bichmond v. Deans, 37 F. (2d) 712, aff’d 281

U. S. 704 ________________________________________  11
Clinard v. Citv of Winston-Salem, 217 N. C. 119, 6

S. E. (2d) 867 __________________________ ________  15
Corrigan v. Buckley, 299 Fed. 899, 271 XJ. S. 323_____  19,

20, 21, 22
Deans v. City of Bichmond, 281 TJ. S. 704____  ______  14
Ex Parte Virginia, 100 IT. S. 339_____________________  15
Glover v. City of Atlanta, 148 Ga. 285, 96 S. E. 562__  15
Hall v. DeCuir, 95 U. S. 485_________________________  14
Harmon v. Tyler, 273 U. S. 668_____________________ 11,14
Home Building & Loan Asso. v. Blaisdell, 290 U. S. 398 18
In Be Drummond Wren, 4 D. L. B. 674 (1945)________  25
Irvine v. City of Clifton Forge, 124 Va. 781, 97 S. E.

310 _____________ ________________________________  15
Jackson v. State, 132 Md. 311, 103 A. 910_______ _____  15
Mooney v. Holohan, 294 TJ. S. 103____________________  15
Moore v. Dempsey, 261 TJ. S. 86_______________ ...._____  17
Norman v. Baltimore & O. B. Co., 294 TJ. S. 240______ 18



IV
PAGE

Powell v. Alabama, 287 U. S. 45.___________________ 17
Raymond v. Chicago Traction Co., 207 U. S. 20______  15
Scott v. McNeal, 154 U. S. 34______________________ _____  17
Slaughter House Cases, 16 Wall 36__________________11, 24
Smith v. Allwright, 321 U. S. 649_____________________  23
Steele v. Louisville & N. R. Co., 323 U. S. 192_________  28
Strauder v. West Virginia, 100 U. S. 303___________  24
Tunstall v. Brotherhood of Firemen and Engineers,

323 IT. S. 210 ____________________________________  28
Twining v. New Jersey, 211 U. S. 78____ ___ ________  17
Virginia v. Rives, 100 U. S. 313_____________________  15
Ward v. Maryland, 12 Wall 418____________    11

Authorities

City of Detroit Interracial Committee, Report of 
March 17, 1947____________________________ ■______  30

Detroit Free Press, March 17, 1945__________________ 32
Detroit Housing Commission, Official Report to Mayor, 

December 12, 1944 _______________________________ 32
Embree, Brown Americans (1943)__ .________________ 34
Good Neighbors, Architectural Forum, January, 1946 35
Klutznick, Philip, Public Housing Charts Its Course, 

Survey Graphic, January, 1945____________________ 33
Myrdal, An American Dilemma (1944), Vol. 1, p. 625.... 35
Report of the Committee of the President, Conference 

on Home Building, Vol. VI, pp. 45, 46 (1932)______  28
U. S. Department of Commerce, Bureau of Census

Series CA-3, No. 9, October 1, 1944_______________  29
Special Survey HO. No. 1, 1943, August 23, 1944.... 29 
Population Series, CA-3, No. 9, October 1, 1944____ 30

Woofter, Negro Problem In Cities (1938)____________ 33, 34



IN  TH E

Bnptmt GImtrt nf Ih? llnttrii States
October Term, 1946.

No.

Orsel M cG hee and M in n ie  S. M cG h ee , 
his wife,

Petitioners,
v.

B e n ja m in  J. S ipes and A n n a  C. S ipes, 
J ames A. C oon and A ddie A. Coon, 
et al.,

Respondents.

PETITION FOR W R IT  OF CERTIORARI TO  THE 
SUPREME COURT OF THE STATE OF MICHIGAN

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioners respectfully pray that a writ of certiorari 
issue to review a judgment of the Supreme Court of the 
State of Michigan affirming a final judgment for respon­
dents and plaintiffs in the original suit in the Circuit Court 
of the County of Wayne in chancery.



2

A

Jurisdiction

The jurisdiction of this Court is invoked under Section 
237 of the Judicial Code, as amended (28 U. S. Code 344
(b )).

The judgment sought to be reviewed was entered by 
the Supreme Court of the State of Michigan on the 7th of 
January, 1947, (R. 87) and petitioners’ motion for a re­
hearing was denied on the 3rd of March, 1947 (R. 118). 
The opinion of the Supreme Court of Michigan is reported 
at 316 Mich. 614, and is also filed as part of the record 
(R. 87).

B

Summary Statement of the Matter Involved

1. Suit and the parties thereto.

This proceeding originated as a suit in equity in the 
Circuit Court for the County of Wayne, in chancery, in 
the State of Michigan against the petitioners for the pur­
pose of obtaining an injunction restraining the petitioners 
from using or occupying property which had been pur­
chased by them and which they were occupying as their 
home (R. 16).

Petitioners were found by lower court to be Negroes 
(R. 74). Prior to the present suit, they purchased and 
became the occupants of an improved parcel of residential 
property in the City of Detroit, County of Wayne, State 
of Michigan, more fully described as 4626 Seebaldt Avenue 
(R. 16, 19). Petitioners are the owners of record title to 
the property in fee simple and occupied it as their home



3

(R. 19). In this action, the respondents sought and ob­
tained a decree requiring the petitioners to move from 
said property and thereafter restraining them from using 
or occupying the premises and, further, restraining peti­
tioners from violating a race restrictive covenant upon 
such land, set forth, more fully below (R. 74, 75).

2. Theory and factual basis of the suit.

The essential facts are undisputed. On or about the 
20th day of June, 1934, John C. Ferguson and his wife, 
the then owners of the premises now occupied by peti­
tioners, 4626 Seebaldt Avenue, executed a certain agree­
ment providing in its essential parts as follows:

“ We, the undersigned, owners of the following de­
scribed property:

Lot No. 52 Seebaldts Sub. of Part of Joseph Tire- 
man’s Est. 1/4 Sec. 51 & 52 10 000 A T and F r ’l 
Sec. 3, T 2 S, R 11 E.

for the purpose of defining, recording, and carrying 
out the general plan of developing the subdivision 
which has been uniformly recognized and followed, 
do hereby agree that the following restriction be im­
posed on our property above described, to remain in 
force until January 1st, 1960— to run with the land, 
and to be binding on our heirs, executors, and as­
signs :

‘ This property shall not be used or occupied by any 
person or persons except those of the Caucasian race’

“ It is further agreed that this restriction shall not be 
effective unless at least eighty percent of the prop­
erty fronting on both sides of the street in the block 
where our land is located is subjected to this or a 
similar restriction”  (R. 63).



4

This contract was subsequently recorded at Liber 4505, 
page 610, of the Register of the County of Wayne on the 
7th day of September, 1935. Similar agreements were exe­
cuted on forty-nine lots of property located within the sub­
division within which the lot which is the subject of this 
suit is located (R. 55, 56). Petitioners purchased said prop­
erty on the 30th of November, 1944 from persons holding 
under the said Fergusons, who executed the restriction. 
Bill of Complaint herein was filed on the 30th of January, 
1945.

C

Questions Presented

I

Whether judicial enforcement of a restriction against 
the use of land by Negroes constitutes a violation of the 
Fourteenth Amendment.

II

Whether agreements restricting the use of land by mem­
bers of racial or religious minorities is against the public 
policy of the United States.

The foregoing questions were seasonably and properly 
raised in the Wayne County Circuit Court and in the 
Supreme Court for the State of Michigan, and were con­
sidered and decided adversely to the petitioners herein in 
both of said courts. However, the opinion of the Supreme 
Court of Michigan was based upon stare decisis, and stated:

“ The unsettling effect of such a determination by 
this court without prior legislative action or a specific 
Federal mandate would be, in our judgment, im­
proper (R. 96).



5

D

Reasons Relied on for A llow ance o f W rit

1. Judicial enforcement of the agreement in question is 
violative of the Constitution and laws of the United States.

(a) The right of a citizen to use, occupy and enjoy his 
property is guaranteed by the Constitution and laws of the 
United States.

United States Constitution, Article IV, Sec. 2, 
Fifth Amendment, Fourteenth Amendment;

Ward v. Maryland, 12 Wall. 418;

The Slaughter House Cases, 16 Wall. 36;

Buchanan v. Warley, 245 U. S. 60.

(b) The State, through the courts below, has been the 
effective agent in depriving petitioners of their property, 
and the exercise of constitutionally protected rights therein.

(c) Action by a state, through its judiciary, prohibiting 
or impairing, on account of race or color, the right of a per­
son to use, occupy and enjoy his property is violative of the 
constitutional guarantee of due process.

Ex parte Virginia, 100 U. S. 339;

Virginia v. Rives, 100 U. S. 313;

Chicago, B. <& Q. R. Co. v, Chicago, 166 U. S. 226;

Raymond v. Chicago Traction Co., 207 U. S 20;



6

Mooney v, Holohan, 294 U. S. 103;

American Federation of Labor v. Swing, 312 U. 8. 
321.

(d) The agreement in its inception was subject to con­
stitutional limitations upon the power of the courts to en­
force it.

Norman v. B. & 0. R. Co., 294 U. S. 240;

Home Building & Loan Assoc, v. Blaisdell, 290 
IT. S. 398.

(e) The issue here presented has never been decided by 
this Court.

Corrigan, v. Buckley, 271 U. S. 323;

Smith v. Allwright, 321 U. S. 649.

2. A  restriction against the use of land by members of 
a racial minority is contrary to the public policy of the 
United States.

Constitution of the United States, Thirteenth, 
Fourteenth and Fifteenth Amendments;

The Slaughter House Cases, supra;

Strauder v. West Virginia, 100 U. S. 303;

Tunstall v. Brotherhood of Firemen, etc., 323 
U. S. 210;

Steele v. Louisville & N. R. Co., 323 U. S. 192;

In re Drummond Wren, 4 I). L. R. 674;



7

United Nations Charter 
Preamble
Articles 55 and 56.

Sociologists, experts in city planning, crime prevention 
and race relations have established that limitations upon 
the use of land for living space by members of racial or 
religious minorities constitute one of the gravest dangers 
to democratic society which we face in America, and in the 
light of these dangers the courts must consider and weigh 
the effects of their use of the injunctive power to extend 
such limitations in the face of the resulting damage to the 
whole of society.

In support of the foregoing grounds of application, peti­
tioners submit herewith the accompanying brief setting 
forth in detail the pertinent facts and argument applicable 
thereto.

Petitioners further state that this application is filed 
in good faith and not for purposes of delay.

W herefore, it is respectfully submitted that this peti­
tion for a writ of certiorari to review the judgment of the 
Supreme Court of the State of Michigan be granted.

Conclusion

F rancis D en t , 
W illis M. Graves,

446 E. Warren Ave., 
Detroit, Michigan.

S pottswood W. R obinson , III 
Richmond Virginia, T htjrgood M arshall .

20 West 40th Street, 
New York 18, New York,M arian  W y n n  P erry,

New York City, New York, 
Of Counsel.

Attorneys for Petitioners.





IN' T H E

tour! o! %  Infteh  g>tate
October Term, 1946.

No.

Orsel M cG hee and M in n ie  8 . M cG h ee , 
his wife,

Petitioners,
v.

B e n ja m in  J. S ipes and A n n a  C. S ipes, 
J ames A. C oon and A ddie A . Coon, 
et al.,

Respondents.

BRIEF IN SUPPORT OF PETITION FOR W R IT  OF 
CERTIORARI TO THE SUPREME COURT OF MICHIGAN

Opinion of Court Below

The opinion of the Supreme Court of the State of 
Michigan is reported at 316 Mich. 614.

Jurisdiction

The jurisdiction of the Court is invoked under Section 
237 of the Judicial Code, as amended, (28 U. S. Code 344
(b)).

The judgment sought to be reviewed was entered by 
the Supreme Court of the State of Michigan on the 7th of 
January, 1947 (R. 87) and application for rehearing was 
denied on the 3rd of March, 1947 (R. 118).

9



10

Statement o f  the Case
The statement of the case and a statement of the salient 

facts from the record appear in the accompanying petition 
for certiorari.

Errors Below Relied Upon Here 
I. The Judicial Arm  o f  the Government has Imposed Racial 

Restrictions in V iolation o f the Constitution and Laws o f 
the United States.

II. The Restriction Against the Use o f Land by Minorities 
Involved in This Case was Held not to Be Contrary to 
Public Policy.

Summary of Argument
I. Judicial Enforcem ent o f the Agreem ent in Question is 

V iolative o f the Constitution and Laws o f the United 
States.
A . The Right o f a Citizen to O ccupy, Use and Enjoy 

His Property is Guaranteed by the Constitution and 
Laws o f the United States.

B. The State, Through the Courts Below, Has Been 
The Effective Agent in Depriving Petitioners o f Their 
Property, A nd The Exercise o f Their Constitution­
ally Protected Rights Therein.

C. Action  by a State, Through Its Judiciary, Prohibiting 
or Impairing, Qn A ccount o f Race or Color, The 
Right o f a Person to Use, Occupy, and Enjoy His 
Property Is Violative o f The Constitutional Guarantee 
o f Due Process.

D. The Agreem ent In Its Inception W as Subject To Con­
stitutional Limitations Upon The Power o f The Courts 
to Enforce It.

E. The Issue Here Presented Has Never Been Decided 
By This Court.

II. A  Restriction Against the Use o f Land by Members o f 
Racial Minorities is Contrary to Public Policy o f the 
United States.



11

A R G U M E N T

I

Judicial Enforcement of the Agreement in Ques­
tion is Violative of the Constitution and Laws of 

United States.

A. The Right of a Citizen to Occupy, Use and Enjoy 
His Property is Guaranteed by the Constitution 
and Laws of the United States.

Petitioners were and still are the owners in fee simple 
of the premises in question. The decree complained of 
deprives them of their right to occupy, use and enjoy their 
property.

The significant protective bases of the rights thus de­
nied these petitioners are Article IV, Section 2, and the 
Fifth and Fourteenth Amendments of the Constitution of 
the United States, and Congressional legislation enacted 
pursuant thereto.

Whether privileges inherent in state or federal citizen­
ship,1 they are guaranteed safety from attack by state 
governments.2

B. The State, Through the Courts Below, Has Been 
the Effective Agent in Depriving Petitioners of 
Their Property, and the Exercise of Their Con­
stitutionally Protected Rights Therein.

When, as here, a State court enforces a racial covenant, 
it is the action of the State, and not the action of individ­

1 See Ward v. Maryland, 12 Wall. 418, 430; The Slaughter House 
cases, 16 Wall. 36.

2 Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. S. 
668; City of Richmond v. Deans (C. C. A. 4 ), 37 F. (2d) 712, aff’d 
281 U. S. 704.



12

uals, which deprives the Negro occupant of his right to 
enjoy his property.

The creation, modification and destruction of rights in 
property are controlled, not by individual action itself, but 
by the legal consequences which the State attaches to it. 
I f a Negro is privately persuaded to refrain from occupy­
ing or purchasing property by reason of the fact that such 
a covenant exists, or if each party to the restrictive agree­
ment, by reason of the restriction or otherwise, refuses to 
sell to a Negro, it is the action of the parties which effec­
tively keeps him out. The same is true as to other private 
sanctions which they may be able to apply without resort 
to governmental forces.

But when private sanctions are ineffective to compel 
obedience to the covenant, and it is necessary to appeal to 
the courts for its enforcement, individual action ceases and 
governmental action begins. It is obvious that in a situ­
ation where, as here, a Negro purchases and enters into the 
possession of property upon which there is a racial restric­
tion, he has lost nothing and has been deprived of nothing, 
by reason merely of the making of the restrictive agree­
ment or the private compulsions of the parties thereto; 
this is best evidenced by the fact that petitioners are still 
in occupancy and that the proponents of the covenant find 
it necessary to go into court to oust them. But when the 
Court commands him to remove from the premises, an arm 
of the State government has effected a deprivation.

The decree has all the force of a statute. It has behind 
it the sovereign power. It is not the respondent, but the 
sovereignty, speaking through the Court that has issued 
a mandate to the petitioners enjoining them from occupy­
ing, using or enjoying their property.



13

C. Action  by a State, Through Its Judiciary, Pro­
hibiting or Impairing, on A ccount o f  Race or 
Color the Right o f a Person to Use, O ccupy and 
Enjoy His Property Is Violative o f the Constitu­
tional Guarantee o f Due Process.

In Buchanan v. Warley,3 this Court firmly established 
that there is a general right afforded all persons alike by 
the constitutional guaranty of due process, to use, occupy 
and enjoy real property without restriction by state action 
predicated upon race or color. In that case, the Court was 
faced with an ordinance of the City of Louisville, Ken­
tucky, providing that colored persons could not occupy 
houses in blocks where the greater number of houses were 
occupied by white persons, and which contained the same 
prohibitions as to white persons in blocks where the greater 
number of houses were occupied by colored persons. Bu­
chanan, the plaintiff, brought an action against Warley, a 
Negro, for the specific performance of a contract for the 
sale of the former’s lot to the latter. Warley defended 
upon a provision in his contract excusing him from per­
formance in the event that he should not have, under the 
laws of the state and city, the right to occupy the property, 
and contended that the ordinance prevented his occupancy 
of the subject matter of the contract. It was held, how­
ever, that the ordinance was unconstitutional as violative 
of the due process clause of the Fourteenth Amendment. 
The Court said:

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises ? * * * 4

3 245 U. S. 60.
4 245 U. S. 75.



14

“ Colored persons are citizens of the United 
States and have the right to purchase property and 
enjoy and use the same without laws discriminating 
against them solely on account of color. Hall v. 
DeCuir, 95 U. S. 485, 508. These enactments did 
not deal with the social rights of men, but with those 
fundamental rights in property which it was in­
tended to secure upon the same terms to citizens of 
every race and color. Civil Eights Cases, 109 U. S. 
3, 22. The Fourteenth Amendment and these stat­
utes enacted in furtherance of its purpose operate 
to qualify and entitle a colored man to acquire prop­
erty without state legislation discriminating against 
him solely because of color. * * * 5 6 7

“ We think this attempt to prevent the alienation 
of the property in question to a person of color was 
not a legitimate exercise of the police power of the 
state, and is in direct violation of the fundamental 
law enacted in the 14th Amendment of the Constitu­
tion preventing State interference with property 
rights except by due process of law. * * * ” e

In Harm,on v. Tyler,'' this Court was again faced with 
an attempt to accomplish substantially the same end by 
an ordinance prohibiting the sale or lease of property to 
Negroes in any “ community or portion of the city * * * 
except on the written consent of a majority of the persons 
of the opposite race inhabiting such community or portion 
of the city.”  This ordinance likewise was held to be in­
valid. Still later, legislation effecting a residential segre­
gation predicated upon the intermarriage interdiction was 
held by this Court to be bad.8 Substantially all of the State 
and lower Federal Courts since considering the eonstitu-

5 245 U. S. 78-79.
6 245 U. S. 82.
7 273 U. S. 668.
8 Deans v. City of Richmond, 281 U. S. 704.



15

tional validity of such legislative enactments have reached 
the same conclusion.9

For the reasons considered in Buchanan v. Warley, it 
would have been beyond the legislative power of the State 
to have enacted a law seeking the accomplishment of the 
end sought to be attained by the covenant here involved, 
or by a law providing that a covenant in the precise terms 
of that involved in the present case should be enforceable 
in its courts. It is inconceivable that, so long as the legis­
lature refrains from passing such a law, a State court may, 
by its decree, compel the specific observance of such cove­
nants and thus afford governmental sanction to a device 
which it was not within the competency of its legislative 
branch to authorize. Yet the immediate consequence of 
the decree now under consideration is to bring about that 
which the legislative and executive branches of the State 
are powerless to accomplish.

It is clear that such property rights as are protected 
by the constitutional guaranty of due process against im­
pairment by the legislature are equally protected against 
impairment by the judiciary. It is now established that 
the prohibitions of the Fourteenth Amendment apply to all 
conceivable forms of State action, including that by its 
courts.10 Such action is found when a court predicates its

9 Irvine v. City of Clifton Forge, 124 Va. 781, 97 S. E. 310; 
Glover v. City of Atlanta, 14'8 Ga. 285, 96 S. E. 562; Jackson v. State, 
132 Md. 311, 103 A. 910; Bowen v. City of Atlanta, 159 Ga. 145, 
125 S. E. 199; Clinard v. City of Winston-Salem, 217 N. C. 119, 6 
S. E. 2d 867; Allen v. Oklahoma City, 175 Okla. 421, 52 P. 2d 1054; 
and see the cases cited, supra. It will be noted that in the Allen case, 
the ordinance was sought to be aided by an exercise of the executive 
power.

10 E x Parte Virginia, 100 U. S. 339; Virginia v. Rives, 100 U. S. 
313; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226; Raymond 
v. Chicago Traction Co., 207 U. S. 20; Mooney v. Holohan, 294 U. S. 
103.



16

judgment upon a rule of substantive law developed in the 
common law, or judge-made law, of a State. Such a rule, 
so made and applied, is as much the product of State action 
and is as much subject to the same tests of validity, as if 
made by that other form of State action, enactment by the 
legislature. This Court has had frequent occasion to apply 
this principle. Thus, where a State court grants an injunc­
tion against peaceful picketing on the ground that such 
conduct is forbidden by the common law of the State, its 
action infringes the Fourteenth Amendment to the same 
extent as would a statute in similar provision which 
abridges the freedom of speech which the Fourteenth 
Amendment commands all States to respect.11 Likewise, 
where an individual is convicted in the court of a State of 
inciting a breach of the peace, a criminal offense under 
the judge-made law of the State, its action may be con­
demned on the same grounds.12 In similar fashion, the con­
stitutional guaranties of free speech may be impinged upon 
by a State court judgment inflicting a contempt sentence 
under its version of the common law of the State with 
respect to punishable contempts of court.13 And, where a 
judgment of a State court accomplishes a taking of private 
property without just compensation, the State has produced 
a result forbidden by the due process clause.14 The large 
body of cases holding that the State has acted where its 
courts have given effect to a rule of procedure held by it 
to be a part of the common law of the State, but in effect 
bringing about a denial of constitutional rights, also serves 
to emphasize the role of the court as an arm of the State

11 American Federation of Labor v. Swing, 312 U. S. 321; Bakery 
Drivers Local v. Wohl, 315 U. S. 769.

12 Cantwell v. Connecticut, 310 U. S. 296.
13 Bridges v. California, 314 U. S. 252.
14 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226.



17

and the consequent production of an unconstitutional re­
sult.15

The mere fact that in Buchanan v. Warley, the forbid­
den state action was initiated by the legislative department, 
while, in the instant case, the action was initially individual 
in character, makes no difference once the judicial arm of 
the State has acted. There can be no difference between 
State action predicated upon prior individual action and 
that which is not predicated thereon—the Fourteenth 
Amendment prohibits both. When the Court acts, it action 
is entirely independent of that of the litigants, and where 
private action ceases and court action commences, the per­
mission of the one ends and the prohibition of the other 
begins.

D. The Agreement in its Inception was Subject to 
Constitutional Limitations Upon the Power of the 
Courts to Enforce it.

The Supreme Court of Michigan erroneously assumed 
that when private individuals enter into a restrictive agree­
ment, the Court is obligated to enforce the same. But the 
courts cannot avoid responsibility under the Fourteenth 
Amendment by the1 ‘ convenient apologetics ’ ’ of an obligation 
which they cannot constitutionally discharge. There is no 
absolute freedom of contract in the sense that judicial en­
forcement of an agreement is automatically forthcoming. 
The right to contract is subject to a variety of restrictions, 
of which the usury laws, gambling laws, Sunday laws, the 
Sherman Anti-Trust Act, peonage sections of the Criminal 
Code, the National Labor Relations Act and prevention of

15 Twining v. New Jersey, 211 U. S. 78; Brinkerhoff-Faris Co. v. 
Hill, 281 U. S. 673; Powell v. Alabama, 287 U. S. 45; Moore v. 
Dempsey, 261 U. S. 86; Scott v. McNeal, 154 U. S. 34.



18

unfair competition by the Federal Trade Commission, are 
illustrative. It is likewise clear that where, by reason of 
constitutional prohibitions, a court is prevented from en­
forcing an agreement privately made, there can be no claim 
that there has been an unjustified interference with liberty 
of contract. In such a case every individually-made contract 
from its inception is subject to the infirmity that judicial 
enforcement cannot be obtained if, so to enforce it, a vio­
lation of constitutionally protected rights will follow.

The right of an individual to make a contract is subject 
to the paramount authority vested in government by the 
Federal Constitution. Thus, in Norman v. Baltimore & 0. 
R. Co.,16 it was held that the joint resolution abrogating the 
Gold Clause stipulation in money contract obligations could 
be applied to pre-existing private agreements, since all in­
dividual agreements are made subject to the exercise of the 
Federal power to regulate the value of money.

Again, in Home Building and Loan Association v. Blais- 
dell,17 it was held that a state statute might, in spite of the 
prohibitions in the Federal Constitution against state im­
pairment of the obligations of a contract, be applied in such 
manner that the previously made contract would be im­
paired, since all contracts made between individuals are 
subject to the paramount authority of the State to enact 
laws validly within its police power.

It is the duty of the courts to enforce contracts so long 
as the court may do so consistently with the supreme law 
of the land. If, however, a court lends its aid to the en­
forcement of a segregation restriction, with the result that 
a Negro is deprived of his constitutional right to occupy

16 294 U. S. 240.
17 290 U. S. 398.



19

property, there is an infringement of the constitutional 
guaranties of due process within the holding of this Court 
in Buchanan v. Warley.

The contract involved in this case must be understood 
as having been made subject to existing constitutional limi­
tations upon the authority of the state to enforce it, and al­
though the declination of the Court to enforce the agree­
ment effectively prevents it from ripening in the manner 
desired by the contracting parties, its action could not be 
considered as the denial to them of any constitutionally 
protected rights.

E. The Issue Here Presented Has Never Been De­
cided by This Court.

Judicial enforceability of racial restrictive covenants has 
frequently been assumed to follow from the decision of this 
Court in the case of Corrigan v. Buckley.18 A  reexamina­
tion of that case makes it apparent that the issue here pre­
sented was neither presented nor decided there.

About 30 white persons, including the plaintiff and 
defendant Corrigan, who were the owners of 25 parcels of 
land, executed and recorded an indenture in which they 
mutually covenanted that no part of the properties covered 
would ever be sold to or occupied by Negroes. A year later, 
defendant Corrigan entered into a contract to sell to defen­
dant Curtis, a Negro, a house and lot situated within the 
restricted area. Plaintiff thereupon brought suit to enjoin 
the sale to and occupancy by defendant Curtis. Both de­
fendants moved to dismiss the bill upon grounds which did

18 55 App. D. C. 30, 299 Fed. 899; appeal denied 271 U. S. 323.



20

not question the constitutional propriety of judicial en­
forcement of the covenant.19 The motions were denied and 
an appeal to the Court o f Appeals for the District of Co­
lumbia 20 taken, where the issue was stated as follows:

“ * * * The sole issue is the power of a number of 
landowners to execute and record a covenant running 
with the land, by which they bind themselves, their 
heirs and assigns, during a period of 21 years, to 
prevent any of the land described in the covenant 
from being sold, leased to, or occupied by Negroes.”

19 Defendant Corrigan moved to dismiss the bill on the grounds that 
the “ indenture or covenant made the basis of said bill”  is (1 ) “ void in 
that the same is contrary to and in violation of the Constitution of the 
United States,”  and (2 ) “ is void in that the same is contrary to public 
policy.”  Defendant Curtis moved to dismiss the bill on the grounds 
that it appeared therein that the indenture or covenant “ is void, in 
that it attempted to deprive the defendant, the said Helen Curtis, and 
others of property, without due process of law ; abridges the privilege 
and immunities of citizens of the United States, including the defen­
dant, Helen Curtis, and other persons within this jurisdiction (and 
denies them) the equal protection of the law, and therefore, is for­
bidden by the Constitution of the United States, and especially by the 
Fifth, Thirteenth, and Fourteenth Amendments thereof, and the Laws 
enacted in aid and under the sanction of the said Thirteenth and Four­
teenth Amendments.” From the opinion of the Supreme Court of 
the United States, 271 U. S. 328-329.

20 5 5 App. D. C. 30, 299 Fed. 899.



21

Following an affirmance of the decree, an appeal to this 
Court21 was taken under the provisions of Section 250 of 
the Judicial Code. This Court stated the issue as follows:22

“ Under the pleadings in the present case the 
only constitutional question involved was that aris­
ing under the assertions in the motions to dismiss 
that the indenture or covenant which is the basis of 
the bill is ‘void’ in that it is contrary to and for­
bidden by the 5th, 13th and 14th Amendments. * * * ”

In dismissing the appeal for want of jurisdiction, this 
Court said:23

“ And, while it was further urged in this Court 
that the decrees of the courts below in themselves 
deprived the defendants of their liberty and prop­
erty without due process of law, in violation of the 
5th and 14th Amendments, this contention likewise 
cannot serve as a jurisdictional basis for the appeal. 
Assuming that such a contention, if of a substantial 
character, might have constituted ground for an 
appeal under paragraph 3 of the Code provision, it 
was not raised by the petition for the appeal or by 
any assignment of error, either in the Court of Ap­
peals or in this Court; and it likewise is lacking in 
substance. * * *

“ Hence, without a consideration of these ques­
tions, the appeal must be, and is, dismissed for want 
of jurisdiction.”  (Italics supplied.)

21 271 U. S. 323.
22 271 U. S. 329-330.
23 271 U. S. 331-332.



22

It must be concluded, therefore, that the constitution­
ality of judicial enforcement of such an agreement was not 
decided in Corrigan v. Buckley.2*

While the Corrigan decision contains an intimation by 
way of dictum that no constitutional question is presented

2* Close examination of the opinion reveals that the Court actually 
decided only four propositions :

(1 ) That since the Fourteenth Amendment, by its terms, directs 
its prohibitions only to state action, it was not violated by the creation 
of the covenant. Thus, defendants’ motions to dismiss on this ground 
did not raise any constitutional question, and therefore afforded no 
basis for an appellate review in the Supreme Court as a matter of right.

(2 ) That Sections 1977 and 1978 (U . S. C., secs. 41 and 42) of 
the Revised Statutes neither render the covenant void nor raise any 
substantial federal question, but merely give all citizens of the United 
States the same right in every state and territory to make and enforce 
contracts, to purchase, lease and hold real property, etc., as is enjoyed 
by white citizens, and this, only against impairment by state action. 
Hence, individual action consisting in entering into a restrictive agree­
ment is not forbidden.

(3 ) That the contention that the covenant was against public policy, 
and therefore void, is purely a question of local law, and so could not 
afford a substantial basis for an appeal to the Supreme Court.

(4 ) That the objection that the entry of the decrees in the lower 
courts enforcing the covenant constituted state action in violation of 
the Fifth and Fourteenth Amendments, was not raised in the petition 
for appeal or by assignment of error either in the Court of Appeals or 
in the Supreme Court, and was therefore not before the Court for 
decision.

In recognition of this, the Supreme Court of Michigan in the instant 
case considered Corrigan v. Buckley inapplicable, saying:

“ It is argued that the restriction in question violates the 14th 
Amendment to the Constitution of the United States. Appellees 
say that this argument was answered in Corrigan v. Buckley, 271 
U. S. 323. W e do not so read the Corrigan case, but rather that 
the decision there turned on the inapplicability of the equal pro­
tection clause of the 14th Amendment to the District of Columbia, 
and that the appeal was dismissed for want of jurisdiction. 316 
Mich. 614. (The certified copy of the opinion and the opinion as 
reported at 25 N. W . (2d) 638, and as filed reads as quoted. In the 
Advance Michigan reports, the second sentence reads, ‘W e so read 
the Corrigan Case, although that decision partly turned . . . . ’ ) . ”



23

by the facts of that case, it is to be remembered that this 
Court was not then committed to the doctrine that common 
law determinations of courts can constitute reviewable 
violations of the due process clause. But the Court is now 
committed to that doctrine.25

This Court has additional reason for reinterpreting its 
decision in the Corrigan ease.

“ In constitutional questions, where correction 
depends upon amendment and not upon legislative 
action this Court throughout its history has freely 
exercised its power to re-examine the basis of its 
constitutional decisions. This has long been ac­
cepted practice, and this practice has continued to 
this day. This is particularly true when the decision 
believed erroneous is the application of a consti­
tutional principle rather than an interpretation of 
the Constitution to extract the principle itself.”  
(Emphasis supplied.)26

II

A  Restriction Against the Use of Land by
Members of Racial Minorities Is Contrary to 

Public Policy of the United States.

A. The Public Policy of the United States.

Fundamental national policies expressed in the Consti­
tution and laws of the United States are offended by the 
restrictive agreement involved in the present case. The 
constitutionality of judicial enforcement of such restric­
tions is challenged in another section of this brief. But it 
is clear that even before the issue of constitutionality is

25 Argument, Part IC.
26 Smith v. Allwright, 321 U. S. 649, 665, 666.



24

reached, the constitutional prohibition against legislation 
must at least reflect national policy against the abuse of 
private power to accomplish the same result.

The Thirteenth Amendment to the Constitution was 
adopted to abolish slavery and the Fourteenth and F if­
teenth Amendments to abolish the badges of servitude 
which remained in the treatment of the recently freed slave. 
These were the first steps in creating a public policy, and 
were so recognized by this Court in 1872 when the memory 
of the struggle for the adoption of the amendments was 
still alive.

”  . . .  no one can fail to be impressed with the 
one pervading purpose found in them all, lying at 
the foundation of each, and without which none of 
them would have been even suggested; we mean the 
freedom of the slave race, the security and firm 
establishment of that freedom, and the protection of 
the newly made freeman and citizen from the op­
pressions of those who had formeidy exercised un­
limited dominion over him.” 27

” . . .  The words of the Amendment, it is true, 
are prohibitory, but they contain a necessary impli­
cation of a positive immunity, or right, most valu­
able to the colored race— the right to exemption 
from unfriendly legislation against them distinc­
tively as colored; exemption from legal discrimina­
tions, implying inferiority in civil society, lessening 
the security of their enjoyment of the rights which 
others enjoy, and discriminations which are steps 
toward reducing them to the condition of a subject 
race.”  28

At the close of the Second World War, which was so 
largely waged for the principles of racial and religious 
equality as enunciated in the Atlantic Charter, the United

27 Slaughter-House Cases, 16 Wall. 36, 71.
28 Strauder v. W est Virginia■, 100 U. S. 303, 308.



25

States solemnly dedicated itself, with the other members 
of the United Nations, to promote universal respect for 
the observance of “ human rights and fundamental free­
doms for all without distinction as to race, sex, language 
or religion,”  (United Nations Charter, Articles 55 and 56.) 
The preamble of the Charter of the United Nations con­
tains the following statement:

“ We, the people of the United Nations, deter­
mined to save succeeding generations from the 
scourge of war, which twice in our lifetime has 
brought untold sorrow to mankind, and to reaffirm 
faith in fundamental human rights, in the dignity 
and worth of the human person, in the equal rights 
of men and women and of nations large and small 
. . . and for these ends to practice tolerance and 
live together in peace with one another as good 
neighbors . . . ”

Such a dedication by treaty on the part of the United 
States, ratified by the Senate, has deepened and reinforced, 
the previous national public policy against racial and re­
ligious discrimination at law.

Ample precedent for the adoption of the view here advo­
cated is supplied by the recent decision of a Canadian 
Court,29 which involved an application of the owner of 
certain registered lands to have declared as invalid a re­
strictive covenant assumed by him when he purchased these 
lands, and which he agreed to exact from his assigns. The 
restriction was:

Land shall not be sold to Jews or persons of objec­
tionable nationality.

The Court, after considering numerous relevant sources 
(including the San Francisco Charter, speeches of Presi- 28

28 In re Drummond Wren (1945), 4 D. L. R. 674.



26

dent Roosevelt, Winston Churchill, and General Charles de 
Gaulle, and the Constitution of the Union of Soviet Socialist 
Republics), held that the restriction was void, saying:

“ How far this is obnoxious to public policy can 
only be ascertained by projecting the coverage of the 
covenant with respect both to the classes of persons 
whom it may adversely affect, and to the lots or sub­
divisions of land to which it may be attached. So 
considered, the consequences of judicial approbation 
of such a covenant are portentous. I f  sale of a piece 
of land can be prohibited to Jews, it can equally be 
prohibited to Protestants, Catholics or other groups 
or denominations. If the sale of one piece of land 
can be so prohibited, the sale of other pieces of land 
can likewise be prohibited. In my opinion, nothing 
could be more calculated to create or deepen divisions 
between existing religious and ethnic groups in this 
province, or in this country, than the sanction of a 
method of land transfer which would permit the 
segregation and confinement of particular groups to 
particular business or residential areas, or con­
versely, would exclude particular groups from par­
ticular business or residential areas. The unlikeli­
hood of such a policy as a legislative measure is evi­
dent from the contrary intention of the recently- 
enacted Racial Discrimination Act, and the judicial 
branch of government must take full cognizance of 
such factors.

“ Ontario, and Canada too, may well be termed a 
province, and a country, of minorities in regard to 
the religious and ethnic groups which live therein. 
It appears to me to be a moral duty, at least, to 
lend aid to all forces of cohesion, and similarly to 
repel all fissiparous tendencies which would imperil 
national unity. The common law courts have by their 
actions over the years, obviated the need for rigid 
constitutional guarantees in our policy by their wise 
use of the doctrine of public policy as an active 
agent in the promotion of the public weal. While



27

courts and eminent judges have, in view of the powers 
of our legislatures, warned against inventing new 
heads of public policy, I do not conceive that I would 
be breaking new- ground -were I to hold the restrictive 
covenant impugned in this proceeding to be void as 
against public policy. Rather would I be applying 
well-recognized principles of public policy to a set 
of facts requiring their invocation in the interest of 
the public good.

“ That the restrictive covenant in this case is di­
rected in the first place against Jews lends poignancy 
to the matter when one considers that anti-semitism 
has been a weapon in the hands of our recently- 
defeated enemies, and the scourge of the world. But 
this feature of the case does not require innovation 
in legal principle to strike down the covenant; it 
merely makes it more appropriate to apply existing 
principles. If the common law of treason encom­
passes the stirring up of hatred between different 
classes of His Majesty’s subjects, the common law 
of public policy is surely adequate to void the restric­
tive covenant which is here attacked.

“ My conclusion therefore is that the covenant is 
void because offensive to the public policy of this 
jurisdiction. This conclusion is reinforced, if rein­
forcement is necessary, by the wide official acceptance 
of international policies and declarations frowning 
on the type of discrimination which the covenant 
would seem to perpetuate.”

In their effort to rise from slavery to equality with their 
fellow men, colored citizens are everywhere met by the 
effort to keep them down, and to deny them that equal 
opportunity which the Constitution secures to all. If they 
can be forbidden to live on their own land by an instru­
mentality of the government, they can be forbidden to work 
at their own trade. Yet this Court has most recently ex­
tended its protection to Negro workers against use of



28

government power to exclude them from their trade.30 
Without protection against such judicial action to imple­
ment private agreements, the prejudice, against which the 
war amendments were framed to defend the colored people, 
triumphs over them, and the amendments themselves be­
come dead letters—as do the solemn obligations of the 
United Nations Charter.

B. The Demonstrable Consequences o f Racial Zoning 
by  Court Enforcement o f Restrictive Covenants 
are Gravely Injurious to the Public W elfare.

Residential segregation, which is sought to be main­
tained by court enforcement of the race restrictive covenant 
before this Court, “ has kept the Negro occupied sections 
of cities throughout the country fatally unwholesome places, 
a menace to the health, morals and general decency of cities, 
and plague spots for race exploitation, friction and riots!”  
Report of the Committee on Negro Housing of the Presi­
dent, Conference on Home Building, Yol. VI, pp. 45, 46 
(1932).

The extent of overcrowding resulting from the enforced 
segregation of Negro residents is daily increasing. The 
United States Census of 1940 examines the characteristics 
of 19 million urban dwellings. The census classifies a dwell­
ing as overcrowded if it is occupied by more than IV2 
persons per room. On this basis 8 percent of the units 
occupied by whites in the nation are classified in the 1940 
census as overcrowded, while 25 percent of those occupied 
by non-whites are so classified. In Baltimore, Maryland, 
Negroes comprise 20 percent of the population yet are

30 See Tunstall v. Brotherhood of Firemen and Engineers, 323 U. S. 
210, and Steele v. Louisville & N. R. Co., 323 U. S. 192.



29

constricted in 2 percent of the residential areas. In the 
Negro occupied second and third wards of Chicago, the 
population density is 90,000 per square mile, exceeding even 
the notorious overcrowding of Calcutta.

Census figures show that 8 percent of the non-white 
residents of the Detroit-Willow Run Area lived at a density 
in excess of 1% persons per room, while only 2.3 percent 
of the white residents were classified as overcrowded in the 
census of 1940.31

The critical lack of housing facilities in Michigan’s non­
white population is emphasized by the following quotation 
from another census study of the Detroit Metropolitan 
District.

“ Vacancy rates were generally lower in Negro 
sections than in white sections. The gross vacancy 
rate among dwelling units for Negro occupancy was
0.4 percent and among those for white occupancy 0.8 
percent.

“ Habitable vacancies represented about seven 
eighths of the unoccupied dwellings intended for 
wrhite occupants and one half of those for Negro 
occupants.

“ Crowded dwelling units—those housing more 
than 1% persons a room—made up 1.3 percent of 
the dwellings in white neighborhoods and 7.4 percent 
of the dwellings in Negro neighborhoods. These units 
[Negro housing] had only one percent of all the 
entire area but were occupied by three percent of its 
population.”  (U. S. Department of Commerce, Bu­
reau of Census, Special Survey H. O. No. 143, August 
23, 1944.)

31 U. S. Dept, of Commerce, Bureau of Census, Series C. A . 3, No. 9, 
Oct. 1, 1944.



30

The overcrowding of the entire community during the 
period from 1940 to 1944 can he emphasized by the growth 
of the Detroit Metropolitan District’s population from 
2,295,867 in 1940 to 2,455,035 in 1944. During the same 
period the non-w7hite population in the Metropolitan area 
increased from 171,877 to 250,195 (U. S. Department of 
Commerce, Bureau of Census, Population Series C. A. 3 
No. 9, October 1, 1944).

According to the Bureau of Census, the non-white popu­
lation of Detroit itself increased from 150,790 in 1940 to 
213,345 in June of 1944, a percentage increase of 41.5 per­
cent.

The City of Detroit Interracial Committee has recently 
completed a study of its work for the calendar year 1946, 
released on March 17, 1947, based upon which it has issued 
a statement of policy from which the following quotation is 
taken:

“ Housing
Every informed person in Detroit knows of the 

acute housing shortage existing not only locally but 
throughout the country. This shortage, which af­
fects all people, is felt especially by veterans and the 
younger married group. The already serious prob­
lem is further complicated for the Negro share of the 
population, however, by the existence of certain ob­
stacles to suitable housing over and above those en­
countered by other citizens. While other minority 
groups may have special problems, it is against 
Negroes that the principal discriminatory practices 
are most prevalent.

“ The City of Detroit Interracial Committee feels 
impelled to point out certain of these practices and 
to state what it believes to be sound principles in 
relation thereto.



31

“ It is a fundamental principle in this country that 
all governmental activities and services and all pri­
vate business should be conducted without discrim­
ination on account of color, national origin or reli­
gious belief. The facts are, however, that this prin­
ciple is constantly disregarded in the matter of hous­
ing by both government and private individuals.

“ The following discriminatory practices in resi­
dential housing activities have been employed in De­
troit and elsewhere:

1. Covenants restricting occupancy based on race 
are imposed on residential property by developers or 
groups of owners.

2. In the absence of such covenants, owners or 
occupiers of residential property by threats or acts 
of violence attempt to prevent occupancy of homes in 
their vicinity by persons of another race, creed or 
color.

3. Lending agencies reject legitimate loans be­
cause the borrower is of a race other than that estab­
lished as the pattern of the neighborhood.

4. Real estate dealers, by agreement and a ‘ Code 
of Ethics’, attempt to prevent occupancy by persons 
because of race, color or creed, and government 
agencies approve such practices.

5. In the redevelopment of blighted areas and in 
providing public housing, government agencies have 
recognized, approved and fortified such discrimina­
tory practices.

“ The chief sufferers from those practices are the 
Negro people. Housing for Negroes is utterly in­
adequate, Negroes are forced to live in overcrowded, 
substandard houses, and these conditions foster 
disease, delinquency and civic irresponsibility. A 
free market in housing and in land for housing does 
not exist. The home building industry and the deal­
ers in homes seem to assume that the Negro popula-



32

tion can be housed in dwellings abandoned by whites, 
which is clearly not the case. They appear to disre­
gard the fact that many Negroes are financially able 
to pay for much better homes than are generally 
available to them and the fact that the ‘ hand-me- 
down’ houses of whites are not sufficient in number 
to fill the demand for Negro housing. Opportunities 
for expansion to vacant land are almost completely 
shut off to Negroes. The restrictive practices re­
ferred to above apply most effectively to vacant or 
thinly developed areas of the City and suburbs.”

The Detroit Housing Commission arrived at the conclu­
sion that the situation within the City of Detroit is such that 
the only solution for the Negro housing problem is in the 
opening of new unrestricted areas.82

The creation and growth of Negro slum areas with re­
sulting high mortality, disease, delinquency and other social 
evils, have been due in large measure to the existence of re­
strictive covenants against Negroes which have prevented 
the normal development of Negro community life. As 
stated by Mr. James M. Haswell, Staff Writer for the De­
troit Free Press on March 17, 1945 in a special feature 
article dealing with the Detroit housing situation:

“ No substantial migration possible under pres­
ent restriction patterns.

“ Nobody knows how many hundreds of restrictive 
covenants and neighborhood agreements there are 
in Detroit binding property owners not to permit 
Negro occupancy. The number has increased greatly 
in response to the Negro search for new residence 
areas. There are said to be 150 associations of prop­
erty owners promoting these agreements.”

To the same effect is the comment of the Commissioner, 
Federal Public Housing Authority, Philip M. Klutznick, in 32

32 Detroit Housing, Official Report to Mayor, December 12, 1944.



33

Ms article, Public Housing Charts Its Course, published in 
Survey Graphic for January, 1945:

“ But the minority housing problem is not one of 
buildings alone. More than anything else it is a mat­
ter of finding space in which to put the buildings. 
Large groups of these people are being forced to 
live in tight pockets of slum areas where they in­
crease at their own peril; they are denied the op­
portunity to spread out into new areas in the search 
for decent living.

“ The opening of new areas of living to all minor­
ity groups is a community problem. And it is one of 
national concern. ’ ’

This is not a new situation, but it is becoming more ag­
gravated from year to year. One of the most discerning 
writers in this field clearly pointed out what was happen­
ing and its social dangers:

‘ * Congestion comes about largely from conditions 
over which the Negroes have little control. They are 
crowded into segregated neighborhoods, are obliged 
to go there and nowhere else, and are subjected to 
vicious exploitation. Overcrowding saps the vitality 
and the moral vigor of those in the dense neighbor­
hoods. The environment then, rather than hereditary 
traits, is a strong factor in increasing death-rates 
and moral disorders. Since the cost of sickness, 
death, immorality and crime is in part borne by 
municipal appropriations to hospitals, jails and 
courts, and in part by employers’ losses through ab­
sence of employees, the entire community pays for 
conditions from which the exploiters of real estate 
profit.” 33

It is also widely recognized that these anti-social cove­
nants are not characteristically the spontaneous product of

88 Woofter, Negro Problem In Cities (1938), at page 95.



34

the community will but rather result from the pressures and 
calculated action of those who seek to exploit for their own 
gain residential segregation and its consequences.

“ The riots of Chicago were preceded by the or­
ganization of a number of these associations (neigh­
borhood protective associations); and an excellent 
report on their workings is to be found in The Negro 
in Chicago, the report of the Chicago Race Commis­
sion. The endeavor of such organizations is to 
pledge the property holders of the neighborhood not 
to sell or rent to Negroes, and to use all the possible 
pressures of boycott and ostracism in the endeavor 
to hold the status of the area. They often endeavor 
to bring pressure from banks against loans on Negro 
property in the neighborhood, and are sometimes 
successful in this.

“ The danger in such associations lies in the tend­
ency of unruly members to become inflamed and to 
resort to acts of violence. Although they are a usual 
phenomenon when neighborhoods are changing from 
white to Negro in northern cities, no record was 
found in this study where such an association had 
been successful in stopping the spread of a Negro 
neighborhood. The net results seem to have been a 
slight retardation in the rate of spread and the crea­
tion of a considerable amount of bitterness in the 
community. ’ ,84 Cf. Embree, Brown Americans 
(1943) at page 34 reporting 175 such organizations 
in Chicago alone.

The same thesis with reference to the City of Detroit 
was recently elaborated by Dr. Alfred M. Lee, Professor 
of Sociology at Wayne University:

“ Emphasizing overcrowding and poor housing as 
one of the major causes of racial disturbances, Lee 
declared that in his opinion real estate dealers and

34 Woofter, op. cit., p. 73.



35

agents have been doing more to stir up racial an­
tagonisms in Detroit than any other single group.

“  ‘ These men (real estate dealers),’ Lee said, 
‘Are the ones who organize, promote and maintain 
restrictive covenants and discriminatory organiza­
tions. I am convinced that once it is possible to 
break the legality of these covenants, a great deal of 
our troubles will disappear.’ ”  As reported in The 
Michigan Ch/ronicle for May 9, 1945.

Other significant analyses of racial conflicts emphasize 
the evils of segregation and its contribution to tension and 
strife.

“ But they [the Negroes] are isolated from the 
main body of whites, and mutual ignorance helps 
reinforce segregative attitudes and other forms of 
race prejudice.”  Myrdal, An American Dilemma, 
(1944) vol. 1, page 625.

‘ ‘ The Detroit riots of 1943 supplied dramatic evi­
dence: rioting occurred in sections where white and 
Negro citizens faced each other across a color line, 
but not in sections where the two groups lived side 
by side.”  Good Neighbors, Architectural Forum, 
January 1946.

The dangers to society which are inherent in the restric­
tion of members of minority groups to overcrowded slum 
areas are so great and are so well recognized that a court 
of equity, charged with maintaining the public interest, 
should not, through the exercise of the power given to it 
by the people, intensify so dangerous a situation. There­
fore, in the light of public interest, the court below erred 
in granting the plaintiff’s petition and ordering the defen­
dants to move from their homes.



36

Conclusion

In considering this question, it is immaterial that the 
restrictive covenants sought to be enforced are directed 
against Negroes. If valid for excluding Negroes, they would 
be equally valid and enforceable by injunction if directed 
against Jews, Catholics, Chinese, Mexicans or any other 
identifiable group. One might even envisage a similar dis- 
crimination against persons belonging to a political party— 
Republicans or Democrats—depending upon the prevailing 
opinion in the area.

Perhaps perpetual covenants against racial or religious 
minorities might not have been oppressive in frontier days, 
when there was a surplus of unappropriated land; but 
frontier days in America have passed. All the land is 
appropriated and owned. White people have the bulk of 
the land. Will they try to make provision for the irresisti­
ble demands of an expanding population, or will they 
blindly permit private individuals whose social vision is no 
broader than their personal prejudices to constrict the nat­
ural expansion of residential area until we reach the point 
where the irresistible force meets the immovable body?



37

For the reasons set forth above, it is respectfully re­
quested that this Court issue a writ of certiorari as prayed 
for in the accompanying petition.

Respectfully submitted,

F ran cis D e n t ,
W illis  M. G raves,

446 E. Warren Ave., 
Detroit, Michigan,

T hitrgood M arshall ,
20 West 40th Street,
New York 18, New York,

Attorneys for Petitioners.

S pottswood W . R obinson , III 
Richmond, Virginia,

M arian  W y n n  P erry,
New York City, New York,

Of Counsel.



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Lawyers P ress, I nc., 165 William St., N. Y . C. 7; ’Phone: BEekman 3-2300