Barnes v. City of Gadsen, Alabama Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    I n  t h e

Bnpvnm  (£mtrt of %  H&niteb i ’tatrs
October Term, 1959 

No.............

E. F. B a r n es , J. C. Carson , J. J e l k s  and J. R obertson ,

Petitioners,

-v.—

T h e  C ity  oe G adsden , A labama , et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

A r t h u r  B u rn s

S27 Forrest Avenue 
Gadsden, Alabama
Attorney for Petitioners



TABLE OF CONTENTS
PAGE

Opinions Below ...................... .................................... . 1

Jurisdiction ............... ......... ................................ .........  2

Questions Presented ............................. ........................  2

Constitutional and Statutory Provisions Involved......  2

Statement of the Case .................................................. 3

Eeasons Belied on for Allowance of Writ .................  7
I. The Public Importance of This Case.............. 7

II. The Court Below Has Decided This Case in 
Conflict With Applicable Decisions of This 
Court and Applicable Principles Established 
by Decisions of This Court ............................  10

Conclusion ..................................................................   14

Appendix A
Opinion of the Court of Appeals ........................... 15

Appendix ....................................   27
Judgment .... ..................................... ....................  40
Order Denying Rehearing...........       41

Appendix B
Title 42, IT. S. C. §1455 ........................ ........... ...... 42



11

T able oe Ca s e s :
page

Barrows v. Jackson, 346 U. S. 249 ............... .........8,10,11
Brotherhood of Railroad Trainmen v. Howard, 343

U. S. 768 (1952) ......................... ................. .............5,11
Brown v. Board of Education of Topeka, 347 U. S. 483 .. 11
Buchanan v. Warley, 245 U. S. 60 .................. .............8,10

City of Richmond v. Deans, 281 U. S. 704 ..................... 10
Civil Rights Cases, 109 U. S. 3, 17_________ ______  11
Cooper v. Aaron, 358 IT. 8. 1, 19.......... ..... ...................  11

Dorsey v. Stuyvesant Town, 299 N. Y. 512, 87 N. E.
2d 541, 14 A. L. R. 2d 133, 150, cert, den., 339 U. S.
981 .............. ........... ........................ ............. ..............  5,7

Harmon v. Tyler, 273 IT. S. 668 ________ _____ ____  10
Hurd v. Hodge, 334 U. S. 24....................... ..................  8

Johnson v. Levitt & Sons (E. D. Pa. 1955), 131 F. 
Supp. 114................... .............. ...................................  5

N.A.A.C.P. v. Alabama, 357 IT. S. 449, 463 (1958) ....5,11,13

Pennsylvania v. Board of Trusts, 353 U. S. 230 (1957) ..5,11

Shelley v. Kraemer, 334 U. S. 1 .............. .................8,10,11
Smith v. Allwright, 327 IT. S. 649 ...... ........................  11
Steele v. Louisville & Nashville R. Co., 323 IT. S. 192 .... 11

Terry v. Adams, 345 IT. S. 461 (1953) .................. ......... 5,11



Ill

O t h e r  A u t h o r it ie s :

page
Alabama Code (1940)

Title 25, §§3, 12, 15 .............. ...............................  3

United States Code
Title 42, §§1441, 1450-1462, as amended ..........3, 7,12
Title 42, §1981 ........................................................  3
Title 42, §1982 ......................................................... 2, 3
Title 28, §1254(1) ...................................................  2

Housing Act of 1949
Title I ...................................................................... 3, 7

Constitution of the United States
Amendment 14, §1 .................................................  2

“Where Shall We Live!”, Report of the Commission 
on Race and Housing, University of California Press 
(1958), p. 29 ........... .............................. ......................  8



Lx THE

( to r t of %  Imtrft States
October Term, 1959 

No...............

E. F. B a rn es , J. C. C arson , J. J e l k s  and J. R obertson ,

Petitioners,
— Y.—

T h e  C ity  of G adsden , A labama , et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Opinions Below

No opinion was written by the majority of the court 
below affirming the judgment for respondents by the United 
States District Court for the Northern District of Alabama. 
However, the minority opinion of Judge Rives, concurring 
in part and dissenting in part, is reported, Barnes v. City 
of Gadsden, Alabama, 268 F. 2d 593 (1959), and reproduced 
in Appendix A. The opinion of the trial court also is re­
ported, Barnes v. City of Gadsden, 174 F. Supp. 64 (1958), 
and appears in the printed record (R. 275-284).



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
the provisions of Title 28, United States Code, §1254(1). 
The opinion of the United States Court of Appeals for the 
Fifth Circuit was rendered on June 30, 1959. Petition for 
rehearing was denied on September 4, 1959, Judge Rives 
dissenting (Appendix A, pp. 40-41).

Questions Presented

1. Whether the present urban redevelopment plans of 
the City of Gadsden, Alabama, actually contemplate the 
effectuation of residential racial segregation and should, 
therefore, be enjoined?

2. Whether the private redevelopers, in disposing of the 
housing accommodations constructed by them in accordance 
with said plan, or any constitutionally valid urban rede­
velopment plan, may discriminate between purchasers on 
the basis of race or color.

Constitutional and Statutory Provisions Involved

This case involves the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States and the provisions of Title 42, United 
States Code, §1982 which provide as follows:

“ . . . nor shall any state deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws” [Amendment 14, §1],

“All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by



3

white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property” [Title 42, 
U. S. C. §1982].

This case also involves some of the provisions of Title I 
of the Housing Act of 1949, as amended,1 since the urban 
redevelopment plans under attack are plans which were 
prepared and approved and which will be financed and 
executed pursuant to said provisions. However, only those 
provisions deemed to have direct bearing upon this case 
are set forth in Appendix B.

Statement o f the Case

Invoking the jurisdiction of the trial court pursuant to 
Title 28, United States Code, §1343(3) and relying upon 
provisions of Title 42, United States Code, §§1981 and 1982, 
petitioners filed suit in the United States District Court 
for the Northern District of Alabama, Middle Division, on 
March 10, 1958 on behalf of themselves and approximately 
fifty other Negro property owners, similarly situated, chal­
lenging the validity of the urban redevelopment plans 
adopted by the City of Gadsden, Alabama on the ground 
that these plans are expressly designed to effectuate resi­
dential racial segregation.2 Declaratory and injunctive re­
lief was sought.

The plans in controversy were approved for federal 
financial assistance by the Urban Renewal Administration 
in accordance with certain provisions of Title I of the Hous­
ing Act of 1949, as amended, and a contract for such finan-

1 Title 42, United States Code, §§1441, 1450-1462, as amended.
2 Respondents are authorized by statute to undertake this urban 

redevelopment. Alabama Code, 1940, Title 25, §§3, 12, 15.



4

cial aid was entered into between the national government 
and the local public agency on August 28, 1957.

After a hearing on petitioners’ motion for preliminary 
injunction, which was denied, followed by a hearing on 
respondents’ motion to dismiss and, by stipulation, on the 
merits, the District Court entered judgment for respondents 
pursuant to its findings of fact and conclusions of law (R. 
275-285). The District Court found as a fact that the plans 
were not intended to and would not have the effect of 
segregating the races and concluded as a matter of law that 
the private redevelopers, in disposing of the housing con­
structed by them in the redeveloped areas in accordance 
with the city’s plan, would not be subject to constitutional 
proscriptions on state action.

Upon appeal to the court below, the District Court judg­
ment was affirmed by two members of the court without 
opinion. Judge Rives, the third member of the court, in a 
lengthy opinion, affirmed in part and dissented in part.

Judge Rives found as a fact that the plans contemplate 
actual segregation but affirmed the denial of an injunction, 
which would have prevented execution of the particular 
plans in controversy, on the ground that “the serious in­
jury which the public may suffer from the stoppage of the 
slum clearance projects, and the desire to afford every 
opportunity for the voluntary cooperation of the members 
of all races for their common welfare and betterment are 
potent factors tending to cause the Court to exercise its 
discretion to deny an injunction at the present stage of 
development of the plans” (Appendix A, p. 20).

Judge Rives dissented on the ground that the conclusion 
of law pronounced by the District Court with relation to 
the acts of the private redevelopers was clearly erroneous 
in the light of several applicable decisions of this Court.



5

Relying on a decision of the Court of Appeals of the 
State of New York, Dorsey v. Stuyvesant Town, 299 N. Y. 
512, 87 N. E. 2d 541, 14 A. L. R. 2d 133, cert, den., 339 U. S. 
981, and a federal district court, Johnson v. Levitt <& Sons 
(E. D. Pa. 1955), 131 F. Supp. 114, the trial court had held 
that action of private redevelopers in refusing to sell to 
petitioners and members of their class, solely because of 
race or color, “would not be actions under color, authority, 
or constraint of state law, nor would they be the perform­
ances of functions of a governmental character” (R. 283).

Citing recent applicable decisions of this Court, N. A. A. 
C. P. v. Alabama, 357 U. S. 449 (1958); Pennsylvania v. 
Board of Trusts, 353 IT. S. 230 (1957); Terry v. Adams, 
345 U. S. 461 (1953); Railroad Trainmen v. Howard, 343 
U. S. 768 (1952), Judge Rives held that the private rede­
velopers in this case are not free to discriminate since, in 
his opinion, the plans in controversy, which are clearly 
“governmentally conceived, governmentally aided and gov- 
ernmentally regulated,” shall not have been completed until 
the property passes out of the control of these redevelopers 
(Appendix A, p. 25). Accordingly, Judge Rives held peti­
tioners are now entitled to a judgment declaring their 
rights as stated in his opinion (Appendix A, p. 26).

Judge Rives’ conclusions that the plans contemplate ac­
tual segregation and are “governmentally conceived, gov­
ernmentally aided and governmentally regulated” were 
based upon facts in the record which were either “undis­
puted or conclusively established” but which wTere not noted 
in the District Court’s findings of fact. Therefore, Judge 
Rives set forth these facts in an appendix to his opinion 
(Appendix A, p. 27). Judge Rives states that he followed 
this unusual procedure because of “the importance of this 
litigation to the public, as well as to the litigants.”



6

At this point petitioners respectfully direct the attention 
of this Court to the appendix to Judge Rives’ opinion. 
However, because the facts there set forth were without 
appropriate page references to the printed record and ex­
hibits before the Court of Appeals, and since petitioners 
have furnished this Court with nine copies of the printed 
record, petitioners have inserted in Judge Rives’ appendix 
appropriate page references and references to petitioners’ 
exhibits. Attention is called to Exhibit A, entitled “Gadsden 
Redevelopment,” and Exhibit B, Local Public Agency Letter 
No. 16, dated Feb. 2, 1953. Attention is also called to 
Plaintiffs’ Exhibit 1, consisting of 1) a copy of each rede­
velopment plan, 2) Parts I & II of the Loan and Grant 
Contracts between the Greater Gadsden Housing Authority 
and the United States of America, and 3) agreements 
between the City of Gadsden and the Greater Gadsden 
Housing Authority, dated July 25,1957. Finally, the court’s 
attention is called to Plaintiffs’ Exhibit 1 attached to depo­
sition of Mr. Wedge, Regional Director of the Urban Re­
newal Administration, and entitled “The Gadsden Plan.” 
This exhibit is a master plan for the city as a whole, adopted 
by the City Planning Commission of Gadsden, Alabama, 
February 19, 1949. This exhibit should not be confused 
with Plaintiffs’ Exhibit A which is, admittedly, a correct 
description of the immediate plans under attack (R. 172- 
173).

In addition to the facts set forth in Judge Rives’ appen­
dix, petitioners call this Court’s attention to the fact that 
after the final decision on the merits in the trial court, 
the Judge of that court reopened the case for the limited 
purpose of receiving in evidence affidavits made by peti­
tioners and twenty-one other Negro owner-occupants of the 
Birmingham Street Area, similarly situated, attesting to 
their financial ability to purchase homes in the redeveloped 
Birmingham Street Area and their firm desire to do so, if



7

permitted. These affidavits as well as each exhibit have 
been sent up to this Court in their original form.

Reasons Relied on fo r  Allowance o f Writ

I. The Public Importance of This Case

This case involves implementation of Title I of the Hous­
ing Act of 1949, the federal government’s program of 
assistance to local communities in order that our perennial 
nationwide problem of recurring slum and blighted resi­
dential areas may be met, America’s cities rebuilt, and we 
may sooner realize our national housing policy’s objective 
of “a decent home and a suitable living environment for 
every American family.” 3 The special importance of this 
case to the public, as well as to these petitioners, stems 
from the fact that the record in this case conclusively 
establishes that this newest federal housing program is 
being implemented by public officials, both state and fed­
eral, in complete disregard of constitutional restrictions on 
public action. After carefully considering the entire record 
in this ease, Judge Rives stated, “I cannot escape the con­
clusion that actual segregation is contemplated” (Appendix 
A, p. 16). If, as Judge Rives points out, the residential 
segregation to be effected here were voluntary or the result 
of wholly private activity, no constitutional objections could 
be interposed. But the segregation here will clearly result 
from non-acquiescence on the part of the Negro community 
which voiced its objections at a public hearing (R. 40, 133) 
and from a plan which is “governmentally conceived, gov- 
ernmentally financed, and governmentally regulated.” 4

3 Declaration of National Housing Policy. Title 42, United States 
Code, §1441.

4 Dorsey v. Stuyvesant Town, supra, dissenting opinion of Judge 
Fuld, 14 A. L. R. 2d, 150.



Prior decisions of this Court have unequivocally voided 
legislative and judicial enforcement of residential racial 
segregation. Buchanan v. Warley, 245 U.S. 60; Shelley v. 
Kraemer, 334 U. S. 1; Hurd v. Hodge, 334 U. S. 24; Barrows 
v. Jackson, 346 U. S. 249. However, in this case, the execu­
tive arm of government, through agencies concerned with 
expanding the availability of decent housing and the re­
building of our cities, is found to be enforcing residential 
racial segregation through the adoption and implementation 
of plans for urban redevelopment. The record in this case 
discloses that the areas to be redeveloped are presently 
racially integrated. In the Birmingham Street area “ . .. oc­
cupancy of dwelling units . . .  is evenly divided (323 white 
and 331 Negro) . . . ” (Exh. A, p. 24). This area will be 
cleared of Negroes (Exh. A, p. 24). In the North Fifth 
Street Area Negroes occupy about 40% of the dwelling 
units. However, according to respondents, “ . . . the fact 
that so little of the area is built up leaves its future racial 
status still in doubt” (Exh. A, p. 24). Respondents, there­
fore, conclude that with respect to this latter area, “North of 
Tuscaloosa Avenue only specific planning, such as is advo­
cated in this redevelopment proposal, can forecast the 
future racial occupancy” (Exh. A, p. 24). Thus, this case 
reveals that under the guise of urban redevelopment and 
urban renewal the executive arm of government becomes 
the primary agent in the initiation of segregated living.

The record in this case also confirms the shocking con­
clusion of a recent major study on residential racial segre­
gation in the United States: “The policies and actions of 
government agencies and public officials must be counted 
among the principal influences sustaining racial segrega­
tion in housing.” 5

5 “Where Shall We Live?”, Report of the Commission on Race 
and Housing, University of California Press (1958), p. 29.



9

Not only does this case involve nullification of prior deci­
sions of this Court in the area of residential racial segrega­
tion but also the nullification of this Court’s decisions in 
the School Segregation Cases. Judge Rives emphasizes in 
the appendix to his opinion the manner in which the urban 
redevelopment program is being used in this case to nullify 
this Court’s decisions in the School Segregation Cases. 
Judge Rives points out that,

“The formal redevelopment plan of the North Fifth 
Street Area approved by the City provides that:

‘The North Fifth Street Area will, after redevelop­
ment, provide 141 units with FHA Committments 
[sic] (tentatively approved) open to non-white occu­
pancy . . . ’ (Appendix A, p. 28).

M. -4i-•jp iF  i f  tP

‘e. Recreational and Community Facilities—The 
setting aside of land for the use of the City for the 
erection of a needed Civic Center with adjacent play- 
field and picnic area is in keeping with the adjacent 
facilities already erected (Negro Swimming Pool 
three blocks away). Also the City Board of Educa­
tion took into consideration the Redevelopment 
Plan when they erected an elementary sehool which 
is located approximately eight blocks away from the 
Project Area.’ ” (Appendix A, pp. 28-29).

Judge Rives then points out that “After reading the 
foregoing paragraph, Mr. Mills testified: ‘That is in fact 
a colored school’ ” (Appendix A, p. 29).

It is, therefore, clear that if the decision of the majority 
below is permitted to remain unreversed by this Court, the 
policies and actions of government agencies and public 
officials must also be counted among the principal influences 
sustaining racial segregation in education.



10

Consequently, the question whether the present urban 
redevelopment plans of the City of Gadsden actually con­
template the effectuation of residential racial segregation, 
and should therefore be enjoined, and the question whether 
private redevelopers, in disposing of the housing accommo­
dations constructed by them in accordance with the pres­
ent plan, or any constitutionally valid urban redevelopment 
plan, may discriminate between purchasers on the basis 
of race or color are questions of the greatest public im­
portance which have not been but which must now be deter­
mined by this Court.

II. The Court Below Has Decided This Case in Conflict With 
Applicable Decisions of This Court and Applicable Princi­
ples Established by Decisions of This Court

In the court below petitioners assigned as error, among 
others, the finding of the District Court that there was no 
evidence to support petitioners’ contention that the urban 
redevelopment plans contemplate racial segregation. In 
connection with this assignment of error, petitioners ask 
this Court to consider Judge Rives’ appendix to his opinion 
where he sets forth the facts which led him to hold that 
the record in this case contains controlling additional facts, 
themselves either undisputed or conclusively established, 
which were not noted in the District Court’s findings of 
fact but which, when carefully considered, lead to the in­
escapable conclusion that actual segregation is contem­
plated. If Judge Rives is correct that the record discloses 
that actual segregation is contemplated, the judgment of 
affirmance by the majority below conflicts with long settled 
applicable principles established by decisions of this Court. 
Buchanan v. Warley, supra; Harmon v. Tyler, 273 U. S. 
668; City of Richmond v. Deans, 281 U. S. 704; Shelley v. 
Kraemer, supra; Barrows v. Jackson, supra; cf. Brown v.



11

Board of Education of Topeka, 347 IT. S. 483; Bolling v. 
Sharpe, 347 U. S. 497; Cooper v. Aaron, 358 U. S. 1.

Petitioners also assigned as error the District Court’s 
ruling that if private interests restrict sales in the Birming­
ham Street Area to white people and sales in the North 
Fifth Street Area to colored people, such sales would not 
be actions under color, or authority, or constraint of state 
law, nor would they be performances of functions of a 
governmental character. Affirmance of this holding by the 
majority is also in conflict with apposite principles estab­
lished by decisions of this Court construing and applying 
the Fourteenth Amendment’s prohibitions and defining the 
duty imposed upon those acting pursuant to authority con­
ferred by government. N. A. A. C. P. v. Alabama, 357 U. S. 
449; Pennsylvania v. Board of Trusts, 353 U. S. 230; 
Barrows v. Jackson, supra; Terry v. Adams, 345 U. S. 461; 
Brotherhood of Bailroad Trainmen v. Howard, 343 TJ. S. 
768; Shelley v. Kraemer, supra; Smith v. AUwright, 327 
U. S. 649; Steele v. Louisville & Nashville R. Co., 323 U. S. 
192; see Cooper v. Aaron, supra, at 19; see, Civil Rights 
Cases, 109 U. S. 3,17.

Judge Elves, in his carefully considered dissenting opin­
ion, holds that, under the facts of this ease, the private 
redevelopers may not discriminate against purchasers of 
homes on the basis of race and color and in support of his 
holding cites several of the next preceding decisions of this 
Court.

Judge Rives’ holding was based primarily upon the fact 
that in this case the private redeveloper will be an essential 
participant in the performance of a governmental function. 
Judge Rives said, “In my opinion, the plan has not been 
completed until the property passes out of the control of the 
redeveloper, and hence in disposing of the property within



12

either of the Areas the redeveloper may not discriminate 
between purchasers on the basis of race and color” (Appen­
dix A, p. 25).

Judge Eives also based his decision on the degree of and 
necessity for the governmental aid involved which will 
inure to the private redevelopers and ultimately the pur­
chasers from these redevelopers. Judge Eives found that 
governmental financial aid is required if the redevelopers 
are to construct the kind of housing described in the re­
development plan. The city is required by the federal stat­
ute to certify that such public assistance is necessary.6 
The entire cost of acquiring the land in the redeveloped 
areas, of clearing these areas, and providing necessary 
facilities such as streets, water supply and sewers, less such 
“fair value” as may be required to be paid by the rede­
velopers, is to be financed by state and federal funds. Two 
thirds of this cost will be borne by the federal government 
and one third by the City of Gadsden (Part I, Loan and 
Grant Contract, Plaintiffs’ Exhibit 1).

Finally, Judge Eives based his decision on the extent of 
governmental control which is to be exercised over the 
activities of these redevelopers. He found that the private 
redevelopers will be obligated by the local public agency 
to devote the redeveloped land to the uses specified in the 
urban redevelopment plans and to begin and complete the 
building of the improvements, in this case homes, within 
a reasonable time (Part II, Section 106(H), Loan and 
Grant Contract, Plaintiffs’ Exhibit 1). Such obligation is 
also required by the federal statute.7

In addition to obligating the private redevelopers to 
carry into effect the redevelopment plans, the private re-

8 Title 42, United States Code, §1455(a). (See Appendix B.) 
7 Ibid.



13

developers will be subject to numerous other governmental 
controls, as evidenced by the formal redevelopment plans. 
(See section headed “Controls on Redevelopment” in each 
plan. Plaintiffs’ Exhibit 1.)

However, it must be carefully noted that the only obli­
gation on respondents and private redevelopers with re­
spect to racial restrictions is to refrain from effecting or 
executing any instrument whereby the sale, lease or oc­
cupancy of any land in the redeveloped areas shall be re­
stricted on the basis of race, creed or color. Respondents 
will place great stress on this obligation and will claim that 
it will operate to prevent discrimination in disposing of 
land in project areas. However, even the District Court 
did not find that this obligation would so operate. The 
District Court held that the sales policies of private re­
developers, despite this obligation, would not be subject 
to Fourteenth Amendment prohibitions. The fact is peti­
tioners will not be protected. Even the federal agency does 
not construe the requirement as affording any such pro­
tection (R. 221-223). Plaintiffs’ Exhibit B plainly demon­
strates that the federal agency’s policies expressly provide 
for the approval of redeveloped areas which will not be 
available to Negroes and other minority group families.

Moreover, as this Court said in N.A.A.C.P. v. Alabama, 
supra, at 463:

It is not sufficient to answer, as the State does here, 
that whatever repressive effect compulsory disclosure 
of names of petitioner’s members may have upon par­
ticipation by Alabama citizens in petitioners’ activities 
follows not from state action but from private com­
munity pressures. The crucial factor is the interplay 
of governmental and private action, for it is only after 
the initial exertion of state power represented by the 
production order that private action takes hold.



14

Similarly, here, the crucial factor is the interplay of 
governmental and private action, for it is only after the 
initial exertion of state power, represented by public 
planning, public condemnation, public expenditures and 
public clearance and redevelopment of land that private 
discriminatory action against petitioners will take hold.

CONCLUSION

W herefore, petitioners pray that a writ o f certiorari 
issue to review the judgment o f the court below.

Respectfully submitted,

A r t h u r  B u r n s

827 Forrest Avenue 
G-asden, Alabama
Attorney for Petitioners

Certificate o f Service

This is to certify that on th e ........ . day of October, 1959,
I served a copy of the foregoing petition for writ of certio­
rari upon the Hon. William B. Dortch, attorney for respon­
dent City of Gadsden, Alabama, and upon the Hon. John A. 
Lusk, Jr., attorney for respondents Greater Gadsden Hous­
ing Authority and Walter B. Mills, by personally serving 
a copy upon each of them at their respective offices in the 
City of Gadsden, Alabama.

A r t h u r  B u r n s  
Attorney for Petitioners



15

APPENDIX A

Opinion o f the Court o f Appeals

I n  t h e

UNITED STATES COUET OF APPEALS 
F oe t h e  F ie t h  C ir c u it

No. 17534

E. F . B a rn es , J. C. Carson , J. J e l k s  and J .  E obertson ,

Appellants,

T h e  C it y  of G adsden , A labama , et al.,
Appellees.

a ppea l  from  t h e  u n it e d  states d istrict  court  for  t h e

NORTHERN DISTRICT OF ALABAMA

(June 30, 1959.)

Before E iv es , Cam eron  and J o nes , Circuit Judges.

E iv es , Circuit Judge: This appeal is from a final judg­
ment for defendants. The plaintiffs seek a declaration 
and injunction against the execution and putting into effect 
of certain urban redevelopment plans of the City of Gads­
den, Alabama, attacked upon the ground that they foster 
enforced racial segregation. The district court entered 
judgment in favor of defendants pursuant to findings of
fact and conclusions of law, now reported in -----F.Supp.
----- , with which all of the members of this Court were



16

tentatively in agreement in our first conference following 
the argument and submission of this appeal. After further 
study and more mature deliberation, Judges Cameron and 
Jones adhere to that view while the writer concurs in part 
and dissents in part for reasons separately stated. The 
judgment is therefore

A f fik m e d .

E iv es , Circuit Judge, Concurring in part and dissenting 
in part:

A careful study of the record and exhibits has con­
vinced me that there are controlling additional facts, 
themselves either undisputed or conclusively established, 
which were not noted in the district court’s findings of 
fact. Recognizing the importance of this litigation to the 
public, as well as to the litigants, I have set forth those 
facts at considerable length in an appendix to this opin­
ion. Excluding those items of doubtful value or of ques­
tionable admissibility, but otherwise carefully consider­
ing the entire record, I cannot escape the conclusion that 
actual segregation is contemplated. So long as that is 
voluntary, rather than governmentally enforced, there 
can be no constitutional objection. As we said in Cohen 
v. Public Housing Administration, 1958, 257 F.2d 73, 78:

“Mr. Stillwell’s testimony has been noted (footnote 
7, supra) to the effect that in his opinion actual segre­
gation is essential to the success of a program of public 
housing in Savannah. If the people involved think 
that such is the case and if Negroes and whites desire 
to maintain voluntary segregation for their common 
good, there is certainly no law to prevent such co­
operation. Neither the Fifth nor the Fourteenth 
Amendment operates positively to command integra-



17

tion of the races but only negatively to forbid govern- 
mentally enforced segregation.11

“ 11 Cf. Avery v. Wichita Falls Independent 
School District, 5 Cir., 1957, 241 F.2d 230, 233; 
Dippy v. Borders, 5 Cir., 1957, 250 F.2d 690, 692.”

That governmentally enforced segregation in housing 
is unconstitutional has now been settled beyond contro­
versy.1 The cases just cited in footnote 1 make clear that 
a State agency has no constitutional power to oust persons 
of one race from their homes and thereafter forcibly to 
restrict the land to the exclusive occupancy of persons 
of another race. Ultimately then, the issue on its merits 
must turn upon whether the contemplated actual segrega­
tion is to be voluntary or governmentally enforced. At the 
present stage the plaintiffs and the defendants face real, 
though different, dilemmas in reaching that issue. The 
plaintiffs feel that they cannot wait longer. As their at­
torney stated to the district court:

“Mr. Burns: That is the very reason why we have 
to do this now. If we wait until the private developers 
get it into their hands, it’s too late.

“In that Levitown case, where the Court said that the 
Court would not require the private developer to sell; 
allowed him to discriminate, where it was without

1 Buchanan v. Warley, 1917, 245 U.S. 60; Benjamin v. Joseph W. 
Tyler, 1927, 273 U.S. 668; City of Richmond v. Deans, 1930, 281 U.S. 
704; Shelley v. Kraemer, 1948, 334 U.S. 1; Barrows v. Jackson, 1953, 
346 U.S. 249; City of Birmingham v. Monk, 5th Cir. 1950, 185 F.2d 
859; Detroit Housing Commission v. Lewis, 6th Cir. 1955, 226 F.2d 
180; Tate v. City of Eufaula, Alabama, M.D. Ala. 1958,165 F.Supp. 
303; Jones v. City of Ilamtramck, E.D. Mich. 1954, 121 F.Supp. 
123; Vann v. Toledo Metropolitan Housing Authority, N.D. Ohio
1953, 113 F.Supp. 210; Banks v. Housing Authority, D.C. App. 
Calif. 1953, 260 P.2d 668; Taylor v. Leonard, 30 N.J. Super. 116,
1954, 103 A.2d 632.



18

dispute that he was discriminating and the Court let 
him do it.”

In its conclusion of law the district court recognized, 
if it did not resolve, the plaintiffs’ dilemma:

“The Court concludes from an analysis of plaintiffs’ 
complaint, evidence and arguments that their claim 
for relief is grounded primarily on the apprehension 
that when the two areas are cleared and rehabilitated 
and sold to private interests under legitimate restric­
tions as to use that plaintiffs and members of their 
class will not be able to purchase property in the Bir­
mingham Street Area because of their race or color, 
Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 
N.E. 2d 541, 14 A.L.R.2d 133, cert, denied 337 U.S. 
981, and that if they purchase homes in the North 
Fifth Street Area they will be racially segregated in 
that area, and, therefore, they should be delivered 
from the apprehension of this possible dilemma by 
injunctive relief, preventing the carrying out of the 
plans which, they insist, constitute a scheme and de­
sign for initiating, enforcing, extending and perpetuat­
ing racial segregation in residential areas of Gadsden 
in violation of their constitutional rights. Otherwise, 
they see no escape from their anticipated predicament 
once the properties are sold to private interests; and 
they are fearful in that event that their last state will 
become worse than their first.

“If the Court assumes that private interests will 
restrict sales in the Birmingham Street Area to white 
people and the North Fifth Street Area to colored 
people, such sales would not be actions under color, 
authority, or constraint of state law, nor would they



19

be the performances of functions of a governmental 
character. Dorsey v. Stuyvesant Town Corp., supra, 
Johnson v. Levitt & Sons, Inc., E.D. Pa., 131 F.Supp. 
114.”

The defendants, on their part, stoutly deny that any 
enforced segregation is contemplated. Their brief states:

“In this case no one is compelled to occupy the new 
houses to be constructed, and no one is prohibited from 
purchasing such houses; anyone buying any of the 
property will have to buy it with full knowledge that 
there can be no discrimination in the future.

“The court should assume that the defendants, their 
agents and successors in office, after receiving the 
federal assistance in this public project, will, upon 
completion of this project, or in carrying it out, recog­
nize the law to the effect there can be no governmentally 
enforced segregation solely because of race or color. 
Tate v. City of Eufaula, 165 Fed.Supp. 303.”

The defendants point out that the plaintiffs may not, 
when the time comes, want to move back into either of 
the Areas:

“ . . .  it boils down to the question of whether a 
complaint based on plaintiffs’ alleged fears that they 
may not be able to repurchase land in the redeveloped 
area states a cause of action upon which relief can 
be granted. It is obvious that such redevelopment 
cannot be accomplished in a short period of time. It 
is equally obvious that not only plaintiffs but all occu­
pants of the North Fifth Street area and the Birming­
ham Street area must be moved and relocated pending 
such clearance. It is by no means clear that plaintiffs



20

or any of the occupants of these areas will even want 
to move back into such areas after redevelopment. Yet 
these plaintiffs are insisting that the entire slum clear­
ance project be stopped on such a complaint.”

1 agree that the serious injury which the public may 
suffer from the stoppage of the slum clearance projects, 
and the desire to afford every opportunity for the volun­
tary cooperation of the members of all races for their 
common welfare and betterment are potent factors tend­
ing to cause the Court to exercise its discretion to deny 
an injunction at the present -stage of development of the 
plans. As said by Judge Sibley, speaking for this Court 
in Kelliher v. Stone & Webster, 5th Cir, 1935, 75 F.2d 331, 
333, 334:

“ . . . and when a public improvement is sought to 
be stopped, the inconvenience to the public, as weighed 
against a slight or remediable wrong to the plaintiff, 
may determine the court of equity against this dis­
cretionary remedy.”

The injury which the plaintiffs anticipate, namely, that 
they may be forced to dispose of their homes for an un­
constitutional purpose, cannot be called slight. Rather, 
the questions are whether the plaintiffs will suffer a legal 
wrong and whether, at the present stage, their plight is 
irremediable. If irreparable injury to the plaintiffs will 
ensue, and if such injury cannot be otherwise prevented, 
then a suit for injunction restraining the carrying out of 
the plans is appropriate to present the question of a pro­
posed unlawful exercise of the power of eminent domain 
for the purpose of subjecting the property taken to a 
racially discriminatory and unconstitutional use.2

2 City of Los Angeles v. Los Angeles Gas & Electric Corporation, 
1919, 251 U.S. 32; Iowa Electric Light & Power Co. v. City of



21

The “Controls on Redevelopment,” including the re­
quirement of an anti-racial covenant, go a long way to 
protect the plaintiffs from governmentally enforced segre­
gation. They do not, however, afford adequate protection 
if the redeveloper is free to restrict sales in the Birming­
ham Street Area to white people and in the North Fifth 
Street Area to Negroes. Enforced segregation might well 
be the practical result, whether or not so intended by the 
defendants. The plaintiffs might derive some small com­
fort from hearing a court tell them that their segregation 
was privately enforced rather than governmentally en­
forced. They might still feel that they stood equal before 
the law.
' While the district court entered formal judgment for 
the defendants, it did not in fact decline to make any 
declaration of the rights of the parties, but in those parts 
of its conclusions of law which I have quoted, ante, p. 3, 
as construed in connection with the cases cited, it held 
that the redeveloper is a mere private individual and as 
such free to discriminate in sales to persons of different 
races. For reasons presently to be stated, I do not agree 
with that conclusion, but, by the same token, I do agree 
that injunction at the present stage of development of 
the plans should be denied.

The district court relied upon two cases in considering 
that sales by the redeveloper would not constitute state 
action within the meaning of the Fourteenth Amendment. 
Dorsey v. Stuyvesant Town Corporation, 1949, 299 N.Y. 
512, 87 N.E.2d 541, 14 A.L.R.2d 133, and Johnson v. 
Levitt Sons, E.D. Pa. 1955, 131 F.Supp. 114. In the

Lyons, Neb., D.C. Neb. 1958, 166 F.Supp. 676, 680; Quinn v. 
Dougherty, App.D.C. 1929, 30 F.2d 749; Reichelderfer v. Quinn, 
App.D.C. 1931, 53 F.2d 1079, reversed on merits, 1932, 287 U.S. 
314; 30 C.J.S., Eminent Domain, Sees. 403, 407; 18 Am.Jur., 
Eminent Domain, Sec. 386.



22

Johnson ease the district court held that F.H.A. and V.A., 
as federal agencies guaranteeing mortgages on housing- 
projects, had no duty to prevent discrimination in sales 
of houses, and injunction did not lie to restrain agencies 
from insuring mortgages so long as the project proprietor 
discriminated against purchasers because of race and color.3

In Dorsey v. Stuyvesant Town Corporation, supra, the 
New York Court of Appeals held that a corporation or­
ganized under the New York Redevelopment Companies 
Law to provide low-cost housing is not an agency of the 
state and hence is not prohibited by the equal protection 
clauses of the State and Federal Constitutions from dis­
criminating against prospective tenants because of race, 
color, or religion. The case is unusually well considered 
both by Judge Bromley, speaking for the majority of four, 
and by Judge Fuld, speaking for the three dissenting 
judges. The majority arrives at the conclusion that:

“ . . . The aid which the State has afforded to re­
spondents and the control to which they are subject 
are not sufficient to transmute their conduct into State 
action under the constitutional provisions here in 
question.” 14 A.L.R. 2d 146.

The extent of the aid furnished by the State and Fed­
eral Governments to the redeveloper and of the control to 
which the redeveloper is subject readily distinguishes the 
present case from either of the cases upon which the 
district court relied. In Johnson v. Levitt £  Sons, supra, 
the federal agencies simply guaranteed mortgages on hous­
ing projects. In Dorsey v. Stuyvesant Town Corporation, 
supra, the City of New York agreed to condemn the land

3 Compare Ming v. Horgan, Super. Ct. Sacramento County, Calif., 
1958, reported in 3 Race Relations Law Reporter 693.



23

necessary for the project and to grant a tax exemption, 
but the full cost of construction and land acquisition was to 
be borne by the corporation. In the present case, the entire 
cost of land acquisition, and of the land itself, less such 
“use value” as may be required to be paid by the rede­
veloper, is to be borne by government funds, approximately 
two-thirds by the United States and one-third by the City 
of Gadsden. Of even more importance, the redeveloper is 
an essential participant in the overall plans for redevelop­
ment here involved. The federal statute made it necessary 
for the Authority to require the redeveloper to carry the 
plan into execution.4

The formal plans approved by the City of Gadsden 
contained detailed and specific “Controls on Redevelop­
ment” requiring “The redeveloper to begin and complete 
the development of Project Land acquired by it for the 
use required by the Redevelopment Plan . . . ” If Dorsey 
v. Stuyvesant Town Corporation, supra, had presented a 
like extent of governmental aid and of state control of

4 “§1455. Requirements for loan—or capital-grant contracts 
“Contracts for loans or capital grants shall be made only with 

a duly authorized local public agency and shall require that—

“Obligations of purchasers, lessees, 
and assignees of property

“ (b) When real property acquired or held by the local public 
agency in connection with the project is sold or leased, the pur­
chasers or lessees and their assignees shall be obligated (i) to devote 
such property to the uses specified in the urban renewal plan for 
the project area; (ii) to begin within a reasonable time any im­
provements on such property required by the urban renewal plan; 
and (iii) to comply with such other conditions as the Administrator 
finds, prior to the execution of the contract for loan or capital grant 
pursuant to this subchapter, are necessary to carry out the purposes 
of this title: Provided, That clause (ii) of this subsection shall 
not apply to mortgagees and others who acquire an interest in 
such property as the result of the enforcement of any lien or claim 
thereon.” 42 U.S.C.A. §1455(b).



24

the corporation, I believe that the majority must have 
agreed with the dissenters’ view that:

“ . . . Unmistakable are the signs that this under­
taking was a governmentally conceived, governmentally 
aided and governmentally regulated project in urban 
redevelopment.” 14 A.L.K. 2d 150.

I would not repeat a reference to the authorities so 
well discussed in Dorsey v. Stuyvesant Town Corporation, 
supra, but would refer briefly to a few later decisions. 
Among these is our own case of Derrington v. Plummer, 
5th Cir. 1956, 240 F.2d 922, in which we held that, where 
a county leases a cafeteria in a newly constructed court­
house to a private tenant operator, the tenant’s exclusion 
of persons merely because they were Negroes constituted 
state action in violation of the Fourteenth Amendment.5

In N.A.A.C.P. v. Alabama, 1958, 357 U.S. 449, 462, 463, 
the Supreme Court said:

“We think that the production order, in the respects 
here drawn in question, must be regarded as entail­
ing the likelihood of a substantial restraint upon the 
exercise by petitioner’s members of their right to free­
dom of association. Petitioner has made an uncontro­
verted showing that on past occasions revelation of 
the identity of its rank-and-file members has exposed 
these members to economic reprisal, loss of employ­
ment, threat of physical coercion, and other manifesta­
tions of public hostility. Under these circumstances, 
we think it apparent that compelled disclosure of peti­
tioner’s Alabama membership is likely to affect ad­
versely the ability of petitioner and its members to

5 That holding, it may be noted, was cited with approval by the 
Supreme Court in Cooper v. Aaron, 1958, 358 U.S. 1, 17.



25

pursue their collective effort to foster beliefs which 
they admittedly have the right to advocate, in that it 
may induce members to withdraw from the Association 
and dissuade others from joining it because of fear 
of exposure of their beliefs shown through their as­
sociations and of the consequences of this exposure.

“It is not sufficient to answer, as the State does 
here, that whatever repressive effect compulsory dis­
closure of names of petitioner’s members may have 
upon participation by Alabama citizens in petitioner’s 
activities follows not from state action but from private 
community pressures. The crucial factor is the inter­
play of governmental and private action, for it is only 
after the initial exertion of state power represented by 
the production order that private action takes hold.”

A few other late Supreme Court cases illustrative of 
the principle that governmental action may include the 
action of a private person who performs a governmental 
function are: Railroad Trainmen v. Howard, 1952, 343 U.S. 
768; Terry v. Adams, 1953, 345 U.S. 461; and Pennsylvania 
v. Board of Trusts, 1957, 353 U.S. 230.

In my opinion, the plan has not been completed until 
the property passes out of the control of the redeveloper, 
and hence in disposing of property within either of the 
Areas the redeveloper may not discriminate between pur­
chasers on the basis of race or color. We should, I think, 
follow the course so well outlined by Judge Johnson of 
the Middle District of Alabama in Tate v. City of Eufaula, 
Alabama, M.D.Ala. 1958, 165 F.Supp. 303, 306, 307:

“ . . . this Court must now assume that these de­
fendants, their agents and successors in office, after 
receiving the federal assistance in this public project, 
will, upon a completion of this project (or any phase 
of it), recognize the law that is now so clear; this law



26

being to the effect that there can be no governmentally 
enforced segregation solely because of race or color . . .

“If these defendants, their agents or successors, 
as public officers and with federal financial assistance 
complete this project or any phase of it, they do so 
with the certain knowledge that there must be a full 
and good faith compliance with this existing law.”

I agree that the judgment should be affirmed in so far 
as it denies an injunction, but, to the extent that it seems 
to me actually but erroneously to declare the rights of the 
parties, I think that the judgment should be reversed and 
judgment here rendered declaring such rights as stated in 
this opinion. I therefore concur in part and dissent in 
part.



27

Appendix*

M atebial  F acts N ot F u l l y  S et  F o eth  in  t h e  
D istrict  C o urt’s F in d in g s

The City of Gadsden is an Alabama municipal corpora­
tion,1 and the Greater Gadsden Housing Authority is a 
public body corporate organized under the laws of the 
State of Alabama.2

Each of the four Negro plaintiffs owns a house in which 
he resides located in the Birmingham Street Area (R. 276). 
Each member of the represented class of about fifty other 
Negro citizens owns a house in one of the areas planned 
for redevelopment (R. 276). The North Fifth Street Area 
contains a considerable amount of vacant land and is 
planned to be redeveloped ahead of the Birmingham Street 
Area, so as to provide living space in the form of 128 small 
building lots for some of the families displaced by the later 
demolition of the Birmingham Street Area (Plaintiffs’ Exh. 
A, pp. 10, 12). The latter area is then to be redeveloped to 
provide 121 large building lots for single-family homes 
(Plaintiffs’ Exh. A, p. 10). The Authority admits in its 
answer that it plans to purchase or acquire by eminent

* Petitioners have inserted in this appendix appropriate refer­
ences to the pages of the printed record, 9 copies of which have 
been furnished this Court, and appropriate references to Peti­
tioners’ exhibits which have been sent up to this Court in their 
original form.

1 The laws of Alabama authorize the City to join in the execu­
tion of the plans for urban redevelopment. 1940 Code of Alabama, 
Title 25, Section 3.

2 The powers of the Authority are detailed in 1940 Code of 
Alabama, Title 25, Section 12. Section 15 of the same title vests 
the Authority with the right to acquire property by eminent 
domain.



28

domain all of the property in the two Areas planned for 
redevelopment (R. 95).

The Agreements between the City and the Authority 
disclose that, in order for the Authority to effectuate the 
plans,

“ . . . the assistance of both the Federal Govern­
ment and the City is required; namely of the Federal 
Government by lending funds needed to defray the 
gross cost of the Project, and upon completion of the 
project and repayment of such loan, by contributing 
two thirds (%) of the net cost of the project; and of 
the City by making certain local grants-in-aid (as 
specified by Title I of the Housing Act of 1949, as 
amended) as hereinafter provided, in a total amount 
equal to at least one-third (Yz) of the net cost of 
the Project . . . ” (Plaintiffs’ Exh. I, p. 1 of said 
Agreement.)

The formal redevelopment plan of the North Fifth Street 
Area approved by the City provides that:

“The North Fifth Street area will, after redevelop­
ment, provide 141 units, with FHA Committments 
[sic] (tentatively approved) open to non-white oc­
cupancy. 73 single family sales units in the price 
range of $6,500 to $8,500, 64 duplex units in the rental 
ranges of $40.00, $45.00 and $50.00 shelter rent per 
month, will be available (Plaintiffs’ Exh. I, p. 7 of 
said plan).

“c. Recreational and Community Facilities—The 
setting aside of land for the use of the City for the 
erection of a needed Civic Center with adjacent play- 
field and picnic area is in keeping with the adjacent 
facilities already erected (Negro Swimming Pool three



29

blocks away). Also the City Board of Education took 
into consideration the Redevelopment Plan when they 
erected an elementary school which is located approxi­
mately eight blocks away from the Project Area” 
(Plaintiffs’ Exh. I, p. 11 of said plan).

After reading the foregoing paragraph, Mr. Mills testified: 
“That is in fact a colored school” (R. 36).

The formal redevelopment plan of the Birmingham Street 
Area approved by the City also states: “The North Fifth 
Street area will, after redevelopment, provide 138 units, 
with FHA Committments [sic] (tentatively approved) open 
to Negro Occupancy” (Plaintiffs’ Exh. I, p. 6a of said plan).

The document principally relied on by the plaintiffs 
was made Exhibit A to their complaint, and consisted of 
an elaborate printed brochure captioned, “Gadsden Rede­
velopment.” Its preparation was paid for by the Federal 
Government (R. 197-198). It was the only document handed 
out to the general public at the time of a public hearing- 
required by 42 U.S.C.A. 1455(d) to be held in connection 
with the redevelopment plans (R. 133). At that hearing 
Negro citizens voiced their objections to the plans (R. 133).

Mr. Wedge, Regional Director of the Urban Renewal 
Administration, testified:

“A. That particular brochure was submitted to our 
agency in connection with the planning and survey 
materials prepared with the benefit of the preliminary 
advance of funds.

“Q. All right, sir. I believe you said or did I under­
stand you to say that this brochure here was submitted 
to your agency by the Greater Gadsden Housing Au­
thority?

“A. It was submitted as a part of the supporting docu­
mentation accompanying the applications” (R. 198).



30

The parts of that document upon which the plaintiff rely are 
quoted in the margin.3

3 “SITES SELECTED FOR REDEVELOPMENT 
“The Birmingham Street Site
“The Master Plan describes the Birmingham Street Area as 
‘ • . . lying in the flat land at the head of Rum Branch, formerly 
a servants’ quarters section that became pocketed by better class 
residential development. Lack of space for expansion led to 
“building between” until now these few blocks contain 250 dwell­
ings. The area is occupied by Negroes, but the number is too few 
to justify provisions of proper recreational, school, and social 
facilities.’
“The recent survey brought out, more forcefully because it was 
more detailed, the facts stated in the Master Plan’s diagnosis: the 
poor quality of housing, lack of public and community facilities, 
and overcrowding. These conditions are in strong contrast to 
those of the surrounding section which, except for a small commer­
cial center to the north, is characterized by homes of good quality. 
“The opportunity to reconstitute the area as a residential district 
in harmony with its surroundings was the main reason for its 
selection as the number one redevelopment site (Exh. A, p. 4).
“The North Fifth Street Site
“A relatively small amount of housing—standard or substandard 
—exists on the North Fifth Street site. This, in fact, is the prin­
cipal reason for its selection as a companion project to the Birming­
ham Street one: it will permit redevelopment for a greater number 
of families than clearance of the site will displace, thus affording 
home sites for those occupants of the Birmingham Street site who 
are not eligible for relocation in public housing or who, for reasons 
of their own, prefer single-family or duplex dwellings.
“A second important reason for selection of this area for redevelop­
ment is the incentive it will provide for further extension of the 
Negro neighborhood up along the foothills of Shinbone Ridge. 
While some of the terrain is steep, much of it is gently rolling and 
well drained; this can be developed as an open residential section, 
convenient to school and social centers as well as to the central 
business district and industries of the city (Exh. A, p. 5).

“THE PROJECTED PLANS 

“North Fifth Street Area
“In most Southern cities there is a scarcity of vacant land located 
close to schools and churches and shopping districts and served by 
city utilities and transportation, land that is suitable and desirable



31

The plaintiffs rely also on “Local Public Agency Letter 
No. 16” issued by the Director of the Housing and Home 
Finance Agency on February 2, 1953, and reading in part 
as follows:

for expansion of Negro neighborhoods or creation of new ones. 
This is true of Gadsden.
“But sometimes careful search will reveal areas that have been 
overlooked or by-passed or, for some other reason, have not been 
exploited for this purpose. The North Fifth Street site is such an 
area.
“Blighted in its south part and spoiled for residential use north of 
Tuscaloosa Avenue by a sprawling but small industrial enterprise, 
this site is, nevertheless, one that offers the possibility for a new off­
shoot from the Tuscaloosa Avenue neighborhood. It is close to 
schools, churches, lodges, swimming pool, and playgrounds, as well 
as to the Tuscaloosa Avenue business section. It can easily be 
served with city utilities.
“Most importantly, it gives, to the north, onto a large open space 
that can be used for expansion of the small development to be 
created initially through this program (Exh. A, p. 6).

“USE OF LAND

“North Fifth Street Area

“A feature of the plan is the four-acre site allocated to a com­
munity center; here the city will in future construct an auditorium 
to serve the Negro community. A small playfield to augment exist­
ing recreational facilities in the neighborhood will be provided in 
conjunction with the center (Exh. A, p. 10).

“BIRMINGHAM STREET AREA

“Located half a mile from the central business district, the Bir­
mingham Street section will offer spacious home sites on quiet resi­
dential streets, newly paved and serviced with utilities (Exh. A, 
p. 14).

“NORTH FIFTH  STREET AREA 
“Like the Birmingham Street Area, this area is only a short dis­
tance from the central business district of the city. And it is equally 
well served with city utilities and community facilities, elementary 
and high schools for Negro children being less than half a mile 
away. The North Fifth Street Area is, in fact, virtually the only



32

“The general procedures developed in the course of 
actual operating experience from the joint efforts of

such close-in land available for expansion of the Negro community 
(Exh. A, p. 15).

“Provision is made at the north extreme of the area for continuing 
North Fifth Street beyond this site so that the Negro neighborhood 
can be expanded by private developers (Exh. A, p. 15).

“SURVEY AREAS 

“Birmingham Street Survey Area
“The core of this area is a group of squalid dwellings occupied by 
Negro families, some of whose grandparents undoubtedly also occu­
pied this same old servants’ quarters section. There are no schools, 
parks, or social facilities, but the residents have built several 
churches which fill an important social need as well as the religious 
one (Exh. A, p. 18).

“COMMUNITY FACILITIES 
“Birmingham Street Survey Area

“Of the five churches, two serve the Negro neighborhood at Bir­
mingham Street, the others having city-wide white congregations 
(Exh. A, p. 22).

“RACIAL OCCUPANCY
“While occupancy of dwelling units in the Birmingham Street 
Survey Area is evenly divided (323 white and 331 Negro), it is 
the sections of Negro occupancy—Birmingham-Bay Streets and 
St. John’s Alley—that coincide with the sections of blighted hous­
ing (Exh. A, p. 24).

“In the North Fifth Street Survey Area Negro families occupy 
about 40% of the dwellings, but the fact that so little of the area 
is built up leaves its future racial status still in doubt. North of 
Tuscaloosa Avenue only specific planning, such as is advocated in 
this redevelopment proposal, can forecast the future racial occu­
pancy” (Exh. A, p. 24).

That document also contained a colored map with “Source: City 
Directory, 1952” showing “Racial Occupancy and Home Owner­
ship” and the other maps showing the projected plans for the 
North 5th Street area, including a “Proposed Colored Auditorium” 
and “Playfield (Col.)” (Exh. A, p. 25).



33

the local and Federal agencies to assure that the liv­
ing space available in a community to Negro and other 
racial minority families is not decreased are based upon 
the following:

“A slum or blighted area presently occupied in whole 
or in part by a substantial number of Negro or other 
racial minority families may be cleared and redeveloped 
if:

“1. The area is to be redeveloped as a residential 
area and the housing is to be available for occupancy 
by all racial groups (at rents or sales prices within the 
financial capacity of a substantial number of Negro 
or other racial minority families in the community), or

“2. The area is to be redeveloped as a residential 
area and a proportion of the housing bearing reason­
able relationship to the number of dwelling units in the 
area which were occupied by Negro or other racial 
minority families prior to its redevelopment is to be 
available for occupancy by Negro or other racial 
minority families, or

“3. The area is to be redeveloped as a residential 
area but the housing is not to be available for occu­
pancy by all racial groups or for occupancy by Negro 
or other racial minority families, and:

“A. Decent, safe, and sanitary housing available 
for occupancy by Negro, or by other minority group, 
families (in an amount substantially equal to the 
number of dwelling units in such area which were 
occupied by Negro or other racial minority families 
prior to its redevelopment) is made available (at 
rents or sales prices within the financial capacity 
of a substantial number of Negro or other racial mi­
nority families in the community) through new con-



34

struction in areas elsewhere in the community or in 
adequate existing housing in areas elsewhere in the 
community not theretofore available for occupancy 
by Negro or by other racial minority families, which 
areas are not generally less desirable than the area 
to be redeveloped, and

“B. Representative local leadership among Negro 
or other racial minority groups in the community 
has indicated that there is no substantial objection 
thereto, or . . .  ” (Plaintiffs’ Exh. B, pp. 2-3).

Referring to that letter, Mr. Wedge testified that: “Para­
graph 3 of L.P.A. 16 has (n)ever been used or applied by 
the Housing and Home Finance Agency to promote any 
form of housing restricted to occupancy by members of the 
colored race” (R. 268).

Mr. Wedge further testified:
“Since L.P.A. Letter No. 16 contains administrative 

guides for reviewing one of the many aspects of an 
urban renewal project, the Birmingham Street Project 
was reviewed in the light of so-called procedure No. 3 
as well as many, many other procedures and require­
ments of the agency” (R. 205).

After some understandable hesitation, both Mr. Wedge 
and Mr. Mills were commendably frank and candid to the 
effect that the plans contemplated actual segregation of 
the races.

Mr. Wedge testified:
“Q. Then I will ask you the same question with reference 
to the Birmingham Street area. It is contemplated that 
the Birmingham Street area when redeveloped will be 
available for any non-white occupancy? (R. 225.)



35

“A. The relocation plan, as I mentioned, is the place 
where we have to look carefully under the provisions 
of 105 (c) to determine the financial ability of displaced 
families and, therefore, North Fifth Street is a factor 
in the feasibility of relocation strictly from an economic 
point of view. With respect to the Birmingham Street, 
the plans in compliance with the federal law conform 
to the plan for the community as a whole and of the 
neighborhood in particular, and in that case on the basis 
of marketability studies and indications of probable 
types of development, it appeared that the land there 
would be substantially more costly than the land that 
would be provided in the North Fifth Street area. Does 
that answer your question? (R. 225-226.)

“Q. Well, yes, sir, I think it does substantially answer 
it except for one minor point that I would like to get 
completely clear. The fact is, then, that whether it is 
because of economics or for whatever other reason, the 
Urban Renewal Administration does not contemplate 
that the Birmingham Street area will be available for 
non-white occupancy? (R. 226.)

“A. We do not contemplate that” (R. 226).

Mr. Mills testified:
“Q. I will ask you if it is not a matter of policy, custom 
and usage for all housing projects in the City of Gads­
den to be racially segregated ?

“A. The projects occupied by white people are built in 
white areas. And the ones occupied by colored people 
are in the colored areas.

All applications are received in one central office, 
and they are all processed by the same person, and the 
housing, as it becomes vacant is made available to 
them” (R. 61).



36

As to low rent public housing to be administered directly 
by the Authority, Mr. Mills testified:

“Q. You don’t plan any new construction of low rent 
public housing ?

“A. Oh yes.
“Q. Have you set any date ?
“A. Some future time.
“Q. Even any date within years ?
“A. Do you want me to answer your question!
“Q. Has any date been set within even a period of three 
or four years?

“A. No, there has been no date set, but a reservation of 
two hundred units has been made.

“Q. Will they be for white or colored?
“A. It is dependent on the need.
“Q. In any event, will they be segregated or desegre­
gated?

“A. They will follow the community pattern of Gadsden, 
which is segregated public housing.

“Q. We come back to the same thing, if any of these 
plaintiffs are eligible and do, either by choice or neces­
sity, move into a low rent housing project, it will be a 
segregated low rent housing project?

“A. Oh yes.
“Q. If it is in Gadsden.
“A. That is right” (B. 154).

Mr. Mills insisted, however, that there was no require­
ment of racial segregation:

“A. Of course, Mr. Burns, all the way through, in both 
the preliminary and the other plan there has been this 
anti-restrictive clause, anti-racial clause in it. And we 
haven’t said that Negroes shall live or shall not live in



37

either one of these areas in the redevelopment plan as 
adopted” (R. 170).

In the formally approved redevelopment plan of the 
Birmingham Street Area, it is provided under the heading 
of “Controls on Redevelopment” :

“a. Redeveloper’s Contracts—In addition to such condi­
tions and requirements as the Authority may deem 
desirable, each contract and deed with a redeveloper 
shall also require: (Plaintiffs’ Exh. 1, p. 9 of said 
Plan.)

“b. Covenants Running with the Land—Notwithstand­
ing the provisions of any zoning or building ordinances 
or regulations, now or hereinafter in force, the follow­
ing shall be incorporated as covenants inappropriate 
disposition instruments by reference to a written dec­
laration thereof recorded simultaneously with the new 
plat of the Project Area. These covenants are to run 
with the land and shall be binding on all parties and 
persons claiming under them for the period of time this 
Redevelopment Plan is in effect, except that the Anti- 
Racial Covenant paragraph (2)(c) below shall run in 
perpetuity (Id. p. 10).

“(2) General Covenants

“(c) Anti-Racial Covenant—No covenants, agree­
ment, lease, conveyance or other instrument shall be 
effected or executed by the Authority, or by the pur­
chasers or lessees from it or any successors in interest 
of such purchasers or lessees, whereby land in the 
Project Area is restricted upon the basis of race, creed



or color, in the sale, lease or occupancy thereof” (Id.
p. 10).

Section 106 of “Part II of Loan and Grant Contract 
between a Local Public Agency and the United States of 
America” provides in part:

“(C) General Requirements Concerning Land.—The 
Local Public Agency will:

“ (1) Take all reasonable steps to remove or abro­
gate or to cause to be removed or abrogated, any 
and all legal enforceable provisions in any and all 
agreements, leases, conveyances or other instruments 
restricting, upon the basis of race, creed or color, 
the sale, lease or occupancy of any land in the Project 
Area which the Local Public Agency acquires as a 
part of the Project;

“ (2) Not itself effect or execute, and will adopt 
effective measures to assure that there is not effected 
or executed by the purchasers or lessees from it (or 
the successors in interest of such purchasers or 
lessees), any agreement, lease, conveyance or other 
instrument whereby Project Land which is disposed 
of by the Local Public Agency is restricted, either by 
the Local Public Agency or by such purchasers, 
lessees or successors in interest, upon the basis of 
race, creed or color, in the sale, lease or occupancy 
thereof; (Plaintiffs’ Exit. 1 , p. 9 of said Contract)

“ (H) Obligating Redevelopers.—When Project 
Land is sold or leased by the Local Public Agency, 
it will obligate the purchasers or lessees, as the case 
may be, (1) to devote such Project Land to the uses 
specified in the Project Redevelopment Plan; and



39

(2) to begin and complete the building of their im­
provements on such Project Land within a reason­
able time” (Id. pp. 10-11).

I do not consider it necessary to extend this overlong 
statement of the facts by referring to another printed 
brochure captioned “The Gadsden Plan” and shown on its 
flyleaf to have been “Adopted by The City Planning Com­
mission Of The City of Gadsden, Alabama—February 19, 
1949” (Plaintiffs’ Exhibit 1 attached to Wedge deposition). 
Mr. Wedge testified that the parts of that document upon 
which the plaintiffs rely were not considered by the Urban 
Renewal Administration, and Mr. Mills called attention that 
that document was obsolete:

“I would like for the record to show that is a publica­
tion of the City Planning Commission of the City of 
Gadsden, that the studies were completed in 1947, that 
it was adopted in January 1949, I think, prior to the 
passage of the Housing Act of 1949” (R. 254).

Further, it is not necessary to consider two items of evi­
dence to the introduction of which the defendants objected; 
namely, a news release of the Housing and Home Finance 
Agency dated November 7, 1957, and an article from a 
Jackson, Mississippi, newspaper dated March 5, 1958, de­
scribing a meeting at which Mr. Mills described parts of 
the Gadsden redevelopment program (Plaintiffs’ Exhibits 
C&E).



40

Judgment

Extract from the Minutes of June 30,1959. 
No. 17534

E. F. B a rn es , J. C. Carson , J. J e l k s  and J. R obertson ,

-v.—

T h e  C it y  oe Gadsden , A labama , e t  a l .

This cause came on to be heard on the transcript of the 
record from the United States District Court for the North­
ern District of Alabama, and was argued by counsel;

On consideration  w h e r e o f , It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, affirmed;

It is further ordered and adjudged that the appellants, 
E. F. Barnes, J. C. Carson, J. Jelks and J. Robertson, be 
condemned, in solido, to pay the costs of this cause in this 
Court for which execution may be issued out of the said 
District Court.
“Rives, Circuit Judge, concurring in part and dissenting 

in part.”



41

Order Denying Rehearing

Extract from the Minutes of September 4,1959.
No. 17534

E. P. B a bn es , J. C. C abson , J. J e l k s  and J. R obektson ,

T h e  C ity  oe Gadsden , A labama , e t  a l .

It is ordered by the Court that the petition for rehearing 
filed in this cause be, and the same is hereby, denied.
“Rives, Circuit Judge, dissents.”



42

APPENDIX B

Title 42, United States Code §1455
Local determinations.—Contracts for loans or capital 

grants shall be made only with a duly authorized local 
public agency and shall require that—

(a) The urban renewal plan for the urban renewal area 
be approved by the governing body of the locality in which 
the project is situated, and that such approval include 
findings by the governing body that (i) the financial aid to 
be provided in the contract is necessary to enable the project 
to be undertaken in accordance with the urban renewal plan; 
(ii) the urban renewal plan will afford maximum oppor­
tunity, consistent with the sound needs of the locality as a 
whole, for the rehabilitation or redevelopment of the urban 
renewal area by private enterprise; and (iii) the urban 
renewal plan conforms to a general plan for the develop­
ment of the locality as a whole;

(b) When real property acquired or held by the local 
public agency in connection with the project is sold or 
leased, the purchasers or lessees and their assignees shall 
be obligated (i) to devote such property to the uses specified 
in the urban renewal plan for the project area; (ii) to begin 
within a reasonable time any improvements on such prop­
erty required by the urban renewal plan; and (iii) to com­
ply with, such other conditions as the Administrator finds, 
prior to the execution of the contract for loan or capital 
grant pursuant to this title, are necessary to carry out the 
purposes of this title [§1450 et seq. of this title]: Provided, 
That clause (ii) of this subsection shall not apply to mort­
gagees and others who acquire an interest in such property 
as the result of the enforcement of any lien or claim there­
on;



43

(c) There be a feasible method for the temporary reloca­
tion of families displaced from the urban renewal area, 
and that there are or are being provided, in the urban re­
newal area or in other areas not generally less desirable 
in regard to public utilities and public and commercial 
facilities and at rents or prices within the financial means 
of the families displaced from the urban renewal area, 
decent, safe, and sanitary dwellings equal in number to the 
number of and available to such displaced families and 
reasonably accessible to their places of employment.

(d) No land for any project to be assisted under this 
title [§§1450 to 1460 of this title] shall be acquired by the 
local public agency except after public hearing following 
notice of the date, time, place, and purpose of such hearing. 
(July 15, 1949, c. 338, Title I, §105, 63 Stat. 416; Aug. 2, 
1954, c. 649, Title III, §307, 68 Stat. 625; Aug. 7, 1956, c. 
1029, Title III, §302(a) (1), 70 Stat. 1097.)