City of Birmingham v. Monk Petition for Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit and Supporting Brief

    in  t h e :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

NO,

CITY OF BIRMINGHAM, et al
Petitioners (Appellants Below)

vs,

MARY MEANS MONK, et al
Respondents (Appellees Below)

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

APPEALS FOR THE FIFTH CIRCUIT 
AND SUPPORTING BRIEF.

H orace C. W ilkinson 
Special Counsel for 
City of Birmingham,

Counsel for Petitioners.



S U B J E C T  I N D E X

Page
Statement of the matter involved________________________  2

Opinion below _________ ______________________________  7

Jurisdiction __ _____ ____________ __ __________________  8

Questions presented __________ ___ _____________________  8

Reasons for granting w rit ____________________________  9

Specification of errors to be urged . .,____________________10

T A B L E  O F  C A S E S

Page
Buchanan v. Warley, 245 U. S. GO ............ .......... ......... ..........  7
Thornhill v. Alabama, 310 U. S. 88 ......... ..........  ... ........ . ._ 7
Giboney v. Empire Storage & Ice Co., 336 U. S. 490.._____  7
Hughes v. Superior Court, 339 U. S. 460___      7
International v. Hanke, 339 U. S. 470 _____ _____________  7
Building Service Employees International Union v.

Gazzarn, 339 U. S. 532 ___________ ______ ___________  7
Cantwell v. Connecticut, 310 U. S. 296 .. ......... ._... .... ....... ...... 10
Reinman v. Little Rock, 237 U. S. 171..________   10
Hadacheck v. Sebastian, 239 U. S. 394 .____    10
Pierce Oil Company v. Hope, 248 U. S. 498______________ 10
Euclid v. Ambler Realty Company, 272 U. S. 365__________10
Oyama v. California, 332 U. S. 633______________________ 10
Hirabayashi v. U. S. 320 U. S. 81.._______________ __ ____ 10
Korematsu v. U. S. 323 U. S. 214__ ____________________ 10
Muller v. Oregon, 208 U. S. 412...................___ ______ ___ 10
Jacobson v. Massachusetts, 197 U. S. 11_________________10
Buck v. Bell, 274 U. S. 200 ______________ _______________ 10
West Coast Hotel Company v. Parrish, 300 U. S. 379_______10
Plessy v. Ferguson, 163 U. S. 537................ ........ ........ ....... ...... 10



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

NO__

CITY OF BIRMINGHAM, et al
Petitioners (Appellants Below)

vs.

MARY MEANS MONK, et ai
Respondents (Appellees Below)

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

APPEALS FOR THE FIFTH CIRCUIT

TO THE HONORABLE SUPREME COURT 
OF THE UNITED STATES

Your petitioner, the City of Birmingham, a municipal 
corporation, in the State of Alabama, and James W. Mor­
gan, as Commissioner for Public Improvements, and H. E. 
Haygood, as Birmingham Building Inspector, respectfully 
prays that a writ of certiorari issue out of this Honorable 
Court to review a judgment of the United States Circuit 
Court of Appeals for the Fifth Circuit rendered on Decem­
ber 19, 1950 in the cause of the City of Birmingham, et al, 
Appellant vs. Mary Means Monk, et al, Appellee and num­
bered 13158 in said court. Application for rehearing was 
filed in said cause within the time prescribed by law and 
overruled on January 25, 1951, Russell Circuit Judge Dis-



2
senting. Judgment of said Circuit Court of Appeals af­
firmed the judgment of the United States District Court 
for the Southern Division of the Northern District of Ala­
bama adjudging and declaring the zoning ordinances of 
the City of Birmingham, Section 1604 and 1605 of the Mu­
nicipal Code and Ordinance No. 709-F violative of the 
Fourteenth Amendment to the Constitution of the United 
States and enjoined their enforcement.

I.

SUMMARY STATEMENT OF THE 
MATTER INVOLVED

The City of Birmingham is an Alabama municipal cor­
poration. About 40% of its population are Negroes.

In 1915 the Alabama Legislature empowered Birming­
ham to prevent conflict and ill feeling between the races 
and delegated to Birmingham “the full, complete and un­
limited police power” of the State of Alabama. Acts 1915, 
Page 294, Section 6.

In 1923 the Legislature empowered Birmingham to es­
tablish a zoning commission and to classify inhabitants 
by zoning regulations, “which will not discriminate in favor 
or against any class of inhabitants.” Alabama Code 1940, 
Title 62, Section 711.

Birmingham thereupon employed the nationally known 
engineering firm of Morris Knowles of Pittsburgh, Penn­
sylvania, to prepare a comprehensive plan for zoning Bir­
mingham.

In 1926, after several years of study and numerous pub­
lic hearings in which all races, classes and interests were 
heard at length, Birmingham was zoned by a basic zoning 
ordinance which is now Chapter 57 of the General City 
Code of Birmingham, 1944. This ordinance* provides for 
equitable, residential segregation.



3
Property not zoned as commercial, light or heavy indus­

trial, is zoned white residential or negro residential. The 
residential districts are in turn sub-divided into A-l white 
residential and B-l negro residential, A-2 white residential 
and B-2 negro residential.

A-l is single family, white. A-2 is single family, negro. 
B-l is multiple family, white. B-2 is multiple family, 
negro.

With minor and unimportant exceptions, the Ordinance 
makes it unlawful for a negro to use or occupy a building 
in a white residential district and for a white person to use 
or occupy a building in a negro residential district.

There is no inhibition against whites owning negro prop­
erty or negroes owning white property. The restriction 
is on the use and occupancy.

More than thirty areas or communities, in Birmingham 
have, been zoned negro residential, corresponding to a sim­
ilar number of communities or areas zoned white resi­
dential.

The negro areas are from 90 to 92 per cent occupied. 
From 8 to 10% of the territory in each negro residential 
district is vacant and available for improvement. The ne­
gro does not need to invade white territory in order to have 
a home in Birmingham on any type of property available 
to whites or blacks for residential purposes.

In 1949 Birmingham adopted a supplementary zoning 
ordinance,* known as Ordinance No. 709-F, in which the 
City Commission, its legislative body, made the following 
finding of fact:

“ORDINANCE NO. 709-F”
“BE IT  ORDAINED By the Commission of the City of 

Birmingham that:
Section 1. The Commission finds as a matter of fact 

that:

*Set out in the Appendix.



4
(a) From the date of the original settlement of this 

City unto the present time it has been the invariable 
custom, supported for most of that time by municipal 
law and universally observed, to require white and col­
ored residents to live in separate residential areas; and

(b) That when attempts have been made by mem­
bers of one race to enter for purposes of a permanent 
residence into an area commonly recognized as set aside 
for members of the other race, violence, disturbances of 
the peace, destruction of property and life has resulted 
almost without exception; and

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

(d) That neither the City of Birmingham nor any 
other law enforcement agency is able so completely to 
police, supervise and safeguard the person and property 
of persons attempting to establish a residence in an area 
not commonly recognized as an area to be occupied by 
members of the race to which such person belongs, as to 
prevent injury to such persons, members of his family, 
third parties in the area affected, and destruction of prop­
erty; and

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

(f) That this ordinance is necessary to preserve the 
peace of said City and to safeguard the property and 
safety of its citizens and of the public in general.”
This ordinance makes it a misdemeanor for whites to 

reside in negro residential sections and for negroes to re­
side in white residential sections.



5
Mary Means Monk, a negro, applied for a building per­

mit to build a house on a lot in Block 37, which she pro­
posed to occupy as a residence. Her lot is in a white resi­
dential district—a district which has been zoned white since 
1926. The permit was refused because the use to which 
she proposed to make of the property was a use prohibited 
by the zoning ordinances of the City. She thereupon filed 
a proceeding in the United States District Court at Bir­
mingham, on behalf of herself and other negroes, in which 
fourteen other negroes joined, to enjoin enforcement of 
the zoning ordinances, and for a declaration that they deny 
equal protection of the law, and for that reason are void.

Birmingham undertook to support its zoning ordinances 
in the District Court, by averring, R. 19-30, and undertak­
ing to prove, R. pp. 94, 95, 96, 98, 121, 123, 127, 139, 
154, 155, 160, 163, 164, 165, 174, 175, 180, 181, 183, 184, 
188, 214, 249:

(1) Whites and negroes in Birmingham have abided 
by the classifications established by the zoning board for 
more than twenty years.

(2) This arrangement has been highly successful. It 
has alleviated friction and racial tension, and contributed 
to the public peace and public welfare to a marked degree.

(3) An overwhelming majority of whites and blacks 
in Birmingham favor the residential segregation established 
by the zoning ordinances.

(4) Thousands of whites have built homes in white 
sections and thousands of negroes have built homes in ne­
gro sections relying upon the zoning classifications estab­
lished by the zoning board, which have been accepted by 
the members of both races for more than twenty years, and 
“ # * * thousands of property owners in Birmingham, white 
and colored alike will suffer irreparable injury and damage 
and the City of Birmingham, will suffer irreparable injury 
and damage if the plaintiffs are allowed or permitted to



6
upset or overturn the arrangement that has prevailed in 
the City of Birmingham for more than twenty years, and 
defendants aver it would be inequitable to disturb the afore­
said arrangement which is essential to peace and order and 
the life and property values in the City of Birmingham.”

(5) There is a “clear and present danger” of a race 
war in Birmingham, and of jeopardy to the lives and prop­
erty of a large number of whites and blacks, and to the 
public peace and order if Mary Means Monk and other 
negroes are allowed to live in a white residential section 
in Birmingham.

(6) That no amount of police protection that the City 
of Birmingham or the State of Alabama is able to afford 
can remove this clear and present danger or avert the con­
sequences.

(7) Residential property values in Birmingham, white 
and black alike, will immediately depreciate in value from 
twenty-five to fifty percent if the zoning law is nullified 
and as a result municipal revenue (from ad valorem taxes 
on residential property) will be diminished so that Bir­
mingham will be unable to render the necessary fire, po­
lice, health, street and light service to whites and blacks in 
Birmingham.

(8) Equitable, residential, segregation results in less 
miscegenation.

(9) The human right of whites and negroes in Bir­
mingham to peace and order, stabilized property values, 
essential municipal services, in short, their right to life, 
liberty and the pursuit of happiness in Birmingham is su­
perior or paramount to the right of any individual to use 
or occupy certain property or a home.

The District Court rejected all of these considerations 
as immaterial and declared the zoning laws invalid and en­
joined their enforcement. The Circuit Court of Appeals, 
Fifth Circuit, by a two to one vote, Russell Circuit Judge 
dissenting, affirmed the judgment of the District Court.



7

II.

OPINION BELOW

The majority and dissenting opinions in the Circuit 
Court of Appeals is reported in 185 Fed. 2d. 859 and for 
convenience is set out in the appendix. The opinion of 
the District Judge is reported in 87 Fed. Supp. 538.

The majority opinion is grounded upon Buchanan vs. 
Warley, 245 U. S. 60, and a line of cases following it, in 
which no comprehensive zoning law, establishing equitable, 
residential segregation of proven worth to whites and blacks 
for nearly a quarter of a century was involved.

The thing that distinguishes this case from Buchanan v. 
Warley, and all similar cases is, that in this case, the mu­
nicipality, which is a branch or arm of the state, has made 
an honest, intelligent effort, to balance the interests of the 
community against the inconveniences to the individual of 
restricting the right to occupy property in a particular lo­
cality for residential purposes. Thornhill v. Alabama, 310 
U. S. 88. The zoning law is comprehensive, equitable and 
elastic. It is predicated on the idea that the attendant cir­
cumstances furnish a basis for restraint by the state.

Giboney v. Empire Storage ir Ice Go., 336 U. S. 490.
Hughes v. Superior Court, 339 U. S. 460.
International v. Hanke, 339 U. S. 470.
Building Service Employees International Union v. Gaz- 

zam, 339 U. S. 532.
Zoning is striking a balance between the constitutional 

element of occupying property for residential purposes and 
the power of the state to protect the interests of the com­
munity.

The majority opinion mistakenly refers to “similar stat­
utes” being held invalid in other jurisdictions. An exami­
nation of the statutes involved demonstrates that the of­
fending statutes were arbitrary attempts to work a hardship



8
instead of equitable efforts to enact social and economic 
legislation reasonably deemed necessary to preserve Con­
stitutional Government itself.

III.
JURISDICTION

The jurisdiction of this Honorable Court is invoked 
under Title 28, Section 1254 of the Judicial Code effective 
September 1, 1948 and Rule 38 of the revised Rules of the 
Supreme Court of the United States, U. S. C. A. Title 28, 
Rules, page 66.

IV.

QUESTIONS PRESENTED

1. Does the Fourteenth Amendment to the Constitu­
tion of the United States inhibit social and economic legis­
lation by a municipal corporation in the State of Alabama 
necessary to the preservation of Constitutional Government 
in Birmingham?

2. Is the right of an individual to occupy property in 
a certain area in Birmingham, for a home, superior and 
paramount to the right of all the citizens in the city to 
peace and order, stabilized property values, and to the pur­
suit of happiness, or, is the right of all citizens in Birming­
ham to peace and order, stabilized property values, and to 
the pursuit of happiness, superior and paramount to the 
right of an individual to occupy a particular piece of prop­
erty for a home?

3. Does the Fourteenth Amendment restrict the police 
power to such an extent that Birmingham cannot work out 
the best possible solution of the race problem in that city?

4. Is equitable, residential segregation prohibited by 
the Fourteenth Amendment to the Constitution of the 
United States?



9

V.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals strikes down ad­
ministrative action of the City of Birmingham of more than 
twenty years standing, of proven worth and benefit to 
whites and blacks alike, and if not reversed constitutes an 
unwarranted and burdensome intrusion into the realm of 
of local orderly, social, regulations as well as a confiscation 
of residential property values in Birmingham without com­
pensation and the robbery of thousands of the protection 
vouch-safed to them by protective, restrictive, municipal 
regulations. It holds, in short, that equitable residential 
segregation in Birmingham must be overturned even 
though that means,

(a) Serious impairment of every needed municipal 
function.

(b) Irreparable injury to white and black owners 
of residential property.

(c) Constant exposure to the menace of race riots.
(d) Increased racial tension.

1. The Circuit Court of Appeals for the Fifth Circuit 
has decided an important question of federal constitutional 
law with respect to the applicability of the Fourteenth 
Amendment to the Constitution of the United States to 
State laws establishing equitable residential segregation 
which has not been but should be settled by this Court.

2. The matter presented is of tremendous importance 
to the citizens of the largest city in Alabama. The tons 
of riot equipment stored in the arsenal in Montgomery, 
the armory in Birmingham and armored trucks equipped 
with tear gas and machine guns can only suppress race 
riots. Only equitable residential segregation fairly admin­
istered will prevent them. The Commission of the City



10
of Birmingham and its predecessors have wrestled with the 
problem for years. There have been killings, bombings 
and the destruction of life or property every time a negro 
has attempted to take up a residence in a white residential 
section and in a number of instances where white foreign­
ers have attempted to take up a residence in a negro neigh­
borhood.

3. The opinion of the majority in the Circuit Court 
of Appeals is not in harmony with the decisions of this 
Court on social and economic legislation. It is probably 
in conflict with the principles laid down in applicable de­
cisions of this Court which are: Cantwell v. Connecticut, 
310 U. S. 296; Reinman v. Little Rock, 237 U. S. 171; 
Hadacheck v. Sebastian, 239 U. S. 394; Pierce Oil Co. v. 
Hope, 248 U. S. 498; Euclid v. Ambler Realty Co., 272 
U. S. 365; Oyama v. California, 332 U. S. 633; Hirabayashi 
v. U. S., 320 U. S. 81; Korematsu v. U. S., 323 U. S. 214; 
Muller v. Oregon, 208 U. S. 412; Jacobson v. Massachu­
setts, 197 U. S. 11; Buck v. Bell, 274 U. S. 200; West Coast 
Hotel Co. v. Parrish, 300 U. S. 379; and Plessy v. Furguson, 
163 U. S. 537.

4. The Circuit Court of Appeals for the Fifth Circuit 
has so far departed from the accepted and usual course of 
judicial procedure as to call for an exercise of this Court’s 
supervision.

VI.

SPECIFICATION OF ERRORS TO BE URGED

The Circuit Court of Appeals erred—

1. In affirming the judgment and decree of the United 
States District Court for the Northern District of Alabama.

2. In holding that Birmingham zoning ordinances, Sec­
tions 1604 and 1605 of the Birmingham Municipal Code 
of 1944 and Ordinance 7Q9-F were each unconstitutional.



n
3. In enjoining the enforcement of each of the zoning 

ordinances, separately and severally, of the City of Bir­
mingham.

4. In affirming the judgment of the United States Dis­
trict Court for the Northern District of Alabama enjoining 
and restraining the City of Birmingham, its City Commis­
sioners, officers, agents, servants and employees from di­
rectly or indirectly enforcing or attempting to enforce or 
attempting to do any other act under the color of Sections 
1604 and 1605 of the general city code of the City of Bir­
mingham or Ordinance No. 709-F of said City, adopted on 
the 9th day of August, 1949, or any other similar ordi­
nances establishing or maintaining restrictions as to resi­
dential occupancy based on race or color.

WHEREFORE, your petitioners pray that a writ of cer­
tiorari issue under the seal of this Court directed to the 
United States Circuit Court of Appeals for the Fifth Cir­
cuit commanding that Court to certify and send to this 
Court a full and complete transcript of the record and of 
the proceedings of said Court had in the Case numbered 
13158, City of Birmingham, et al, appellants vs. Mary 
Means Monk, et al, appellees to the end that this cause 
may be reviewed and determined by this Court as provided 
for by the statutes of the United States and that the judg­
ment therein of said United States Circuit Court of Ap­
peals for the Fifth Circuit be reversed by this Court and 
for such other relief as to this Court may seem proper.

H orace C. W ilkinson,
Special Counsel for the 
City of Birmingham, Alabama 

Attorney for Petitioners



12

A P P E N D I X

Sec. 1604. Occupancy in “A-l” and “B-l” residence dis­
tricts.

In “A-l” and “B-l” residence districts, no building or 
part thereof shall be occupied or used by a person of the 
negro race; provided, however, that this section shall not 
be interpreted to prohibit any of the following:

(a) Use or occupancy by a negro servant, chauffeur or 
other employee, when the employer resides in the same 
building or in a building upon the same lot.

(b) Use or occupancy by any person, who, on August 
4, 1926 was the owner of the used or occupied building 
or of the lot upon which such building may be erected, 
or who at said time shall have contracted to purchase the 
same by a valid and enforceable contract of purchase, or 
by his successor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence of, in or on the 
building or lot.

(d) Use or occupancy during the period of the tenancy 
or lease by a life tenant, lessee for a term of years or other 
lessee of the used or occupied building or lot, such tenant 
or lessee being of the negro race, or by the successor in title 
of any such lessee by will or descent, in cases in which the 
tenancy or lease was created before August 4, 1926 and is 
unexpired and in force and effect.

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension or renewal of 
any such lease, in cases in which the right of renewal or 
extension was created previous to, and was in force and ef­
fect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any



13
person described in paragraph (d) at any or all times at 
which both the tenancy, lease, renewal or extension de­
scribed in paragraph (d) and (e) shall be in full force and 
effect, and said person himself resides in or on the building 
or lot.

(g) Continuance, after August 4, 1926, of the residen­
tial use of occupancy of a building by persons of the negro 
race, in any case in which such building was used or oc­
cupied for residential purposes by persons of the negro race 
prior to August 4, 1926, or, if such building was vacant at 
said time, then in any case in which the last such use or oc­
cupancy previous to said time was by persons of the negro 
race. (Ord. 1101-C, Sec. 9).

Sec. 1605. Occupancy in “A-2” and “R-2” residential 
districts.

In “A-2” and “B-2” residence districts, no building or 
part thereof shall be occupied or used by a person of the 
white race; provided, however, that this section shall not be 
interpreted to prohibit any of the following:

(a) Use or occupancy by a white servant, chauffeur or 
other employee when the employer resides in the same 
building or in a building upon the same lot.

(b) Use or occupancy by any person who, on August 4, 
1926, was the owrner of the used or occupied building or of 
the lot upon which such building may be erected, or who at 
said times shall have contracted to purchase the same by a 
valid and enforceable contract of purchase, or by his suc­
cessor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence in or on the 
building or lot.

(d) Use or occupancy during the period of the tenancy 
or lease, by a life tenant, lessee for a term of years or other 
lessee of the used or occupied building or lot, such tenant



14
or lessee being of the white race, or by the successor in title 
of any such lessee by will or descent, in cases in which the 
tenancy or lease was created before August 4, 1926 and was 
unexpired and in force and effect at said time.

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension of renewal 
of any such lease, in cases in which the right of renewal or 
extension was created previous to and was in force and ef­
fect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (d) , at any and all times 
at which both the tenancy, lease, renewal or extension de­
scribed in paragraph (d) and (e) shall be in full force and 
effect, and said person himself resides in or on the building 
or lot.

(g) Continuance, after August 4, 1926, of the residen­
tial use or occupancy of a building by persons of the white 
race, in any case in which such building is used or occupied 
for residential purposes by persons of the white race or, if 
such building was vacant at said time, then in any case in 
which the last such use or occupancy previous to said time 
was by persons of the white race. (Grd. 1101 -C, Sec. 10) .

ORDINANCE NO. 709-F

BE IT ORDAINED By the Commission of the City of 
Birmingham that:

Section 1. The Commission finds as a matter of fact that:
(a) From the date of the original settlement of this City 

unto the present time it has been the invariable custom, 
supported for most of that time by municipal law and uni­
versally observed, to require white and colored residents to 
live in separate residential areas; and

(b) That when attempts have been made by members 
of one race to enter for purposes of a permanent residence 
into an area commonly recognized as set aside for members



15
of the other race, violence, disturbances of the peace, de­
struction of property and life has resulted almost without 
exception; and

(c) This Commission further finds from its knowledge 
of present conditions and public sentiment in this City that 
in the event: attempts shall now or in the foreseeable future 
be made by members of one race to establish residences in 
areas heretofore regarded as set apart for the residences of 
members of the other race, breaches of the peace, riots, de­
struction of property and life will follow; and

(d) That neither the City of Birmingham nor any other 
law enforcement agency is able so completely to police, 
supervise and safeguard the person and property of per­
sons attempting to establish a residence in an area not com­
monly recognized as an area to be occupied by members of 
the race to which such person belongs, as to prevent injury 
to such persons, members of his family, third parties in the 
are affected, and destruction of property; and

(e) That the Zoning ordinances of the City of Birming­
ham now in effect do substantially and fairly well delineate 
those areas historically and generally regarded as available 
for residences and occupation by membeis of the white 
and colored races; and

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

Now, therefore, BE IT ORDAINED:
Section 2. That it shall be a misdemeanor for a member 

of the white race to move into, for the purpose of establish­
ing a permanent residence, or, having moved into, to con­
tinue to reside in an area in the City of Birmingham gen­
erally and historically recognized at the time as an area for 
occupancy by members of the colored race, and

Section 3. That it shall be a misdemeanor for a member 
of the colored race to move into, for the purpose of estab­
lishing a permanent residence, or having moved into, to



16
continue to reside in an area in the City of Birmingham 
generally and historically recognized at the time as an area 
for occupancy by members of the white race.

Section 4. The words “permanent residence” as used 
herein shall be construed as meaning the occupancy of a 
house or tenement for more than twenty-four hours, except 
a house or tenement which is appurtenant to, used in con­
nection with, and a part of the curtilage of another house or 
tenement and occupied by a person who shall be in the 
employ of the person occupying the residence or tenement 
to which it is appurtenant.

Section 5. The moving into for the purpose of establish­
ing a permanent residence shall constitute a separate of­
fense from remaining there, and remaining in residence in 
a forbidden area for each twenty-four hour period shall con­
stitute a separate offense.

Section 6. This Ordinance shall take effect immediate­
ly, the public welfare requiring.

STATE OF ALABAMA 
JEFFERSON COUNTY

I, Eunice S. Hewes, City Clerk of the City of Birming­
ham, do hereby certify that the above is a true and correct 
copy of an ordinance duly adopted by the Commission of 
the City of Birmingham at its meeting held August 9, 1949, 
and as same appears of record in Minute Book A-32 of said 
City.

GIVEN UNDER MY HAND AND CORPORATE 
SEAL of the City of Birmingham, this the 3rd day of No­
vember, 1949.

Eunice S. H ewes, City Clerk.



17

IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 13,158

CITY OF BIRMINGHAM, ET AL,
Appellants,

versus

MARY MEANS MONK, FT AL,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE NORTHERN DISTRICT OF 
ALABAMA.

(December 19, 1950)

Before McCORD, BORAH, and RUSSELL,
Circuit Judges.

BORAH, Circuit Judge. This is an appeal from a final 
judgment in an action brought by Mary Means Monk and 
several other Negro citizens of the United States, residents 
of the City of Birmingham, Alabama, in their own behalf 
and in behalf of other Negroes similarly situated, against 
the City of Birmingham, James W. Morgan, a city commis­
sioner, and H. E. Hagood, city building inspector, praying 
for a declaratory judgment that certain zoning laws of the



18
City are unconstitutional and void as violative of the Four­
teenth Amendment to the Constitution of the United 
States, and for an injunction against defendants forever re­
straining and enjoining them from enforcing said ordi­
nances.

The complaint alleges that plaintiffs own certain real 
property located in the City of Birmingham which is sub­
ject to the provisions of Sections 1604 and 1605 of the 
General City Code of Birmingham, 1944, and supplemen­
tary ordinance No. 709-F. Sections 1604 and 1605 are a 
part of the basic zoning law of the City. With some minor 
exceptions, not here important, they make it unlawful for a 
Negro to occupy property for residential purposes in an 
area zoned A-l or white residential, or for a white person 
to occupy property for residential purposes in an area 
zoned B-l or Negro residential. Ordinance No. 709-F, 
Section 3, provides: “That it shall be a misdemeanor for a 
member of the colored race to move into, for the purpose 
of establishing a permanent residence, or having moved 
into, to continue to reside in an area in the City of Bir­
mingham generally and historically recognized at the time 
as an area for occupancy by members of the white race.” 
These provisions of the ordinances are assailed on the 
ground that they deny to plaintiffs and others similarly 
situated the right to occupy, enjoy and dispose of their 
property solely because of their race and color in violation 
of the rights guaranteed to plaintiffs by the Fourteenth 
Amendment and Sections 41 and 42 of Title 8, United 
States Code. And the relief prayed for is that the court 
enjoin the enforcement of the challenged Sections 1604 
and 1605 of the City Code and Ordinance No. 709-F and 
render judgment declaring said ordinances unconstitution­
al, null and void. The answer of defendants denies that 
plaintiffs are prevented from occupying their property sole­
ly because of their race or color and sets up that the classi­
fication of certain areas in the City of Birmingham in its



19
zoning ordinances as white resident sections and Negro 
resident sections “is based and justified in part upon the 
difference between the white and Negro races and not sole­
ly upon race and color,” and denies that the ordinances 
are unconstitutional and invalid. The defendants further 
aver that the zoning ordinances are a valid and legal exer­
cise of the police power of the City of Birmingham which 
by specific statutory enactment is commensurate with the 
police power of the State of Alabama and is a power that is 
inalienable and cannot be surrendered by the City of Bir­
mingham, Alabama, or by the State of Alabama.

The case was tried before the Court without a jury and 
thereafter the judge made findings of fact and conclusions 
of law unfavorable to defendants, and on December 16, 
1949, entered a decree declaring the ordinances unconsti­
tutional and void, and enjoining their enforcement.

The trial court found that plaintiffs are the owners of 
the real estate described in their complaint and that each 
of them purchased their property for the purpose of oc­
cupying it as a residence; that these properties are affected 
by and subject to the provisions of the ordinances in ques­
tion and are located in sections of the City which are, by 
virtue of the zoning ordinances, reserved exclusively for 
occupation by white persons; that neither the plaintiffs nor 
other members of the Negro race will be permitted to oc­
cupy said property for dwelling purposes solely because 
they are Negroes; that none of the plaintiffs will be per­
mitted by the City to construct residences on their property 
to be occupied by them or any member of the Negro race 
because the City will not issue building permits solely be­
cause the ordinances in question limit the occupancy of 
such properties to members of the white race; that it is the 
established and universal custom of the City officials to 
deny building permits to construct residences for Negro 
occupancy in districts zoned for white occupancy; and that 
if dwellings were erected on the properties the plaintiffs



20
or other Negroes could not occupy them without becoming 
subject, under the provisions of the ordinances, to criminal 
prosecution, fine and imprisonment, solely on account of 
the fact that they are members of the Negro race. These 
findings are fully supported by the evidence and are not 
challenged on this appeal.

Appellants are here insisting that the judgment should 
be reversed and that the trial court erred in excluding cer­
tain evidence. These are the only errors assigned.

The important question presented by this appeal is 
whether or not the zoning laws and supplemental ordi­
nance in question constitute a legitimate exercise of the 
police power of the State, as claimed by appellants, or are 
unconstitutional and void as violative of the Fourteenth 
Amendment to the Constitution of the United States, as 
contended by appellees.

The property rights of plaintiffs are here directly in­
volved. The rights created by the first section of the Four­
teenth Amendment are, by its terms, guaranteed to the 
individual. The rights established are personal rights.1 One 
of the basic objectives sought to be effectuated by the 
framers of the Fourteenth Amendment was freedom from 
discrimination by the States and their municipalities in the 
enjoyment of property rights. The Fourteenth Amend­
ment prevents State interference with property rights save 
by due process of law and “property is more than the mere 
thing which a person owns,” it includes the right to use, 
acquire and dispose of it and more specifically the right 
to residential occupancy for lawful purposes without dis­
criminatory restriction. It is true, as urged by appellants, 
that the State and its municipalities in the exercise of those 
police powers that were reserved at the time of the adop­
tion of the Constitution has wide discretion in determining 
its own public policy and what means are necessary for its 
own protection and properly to promote the safety, peace,

1Missouri Ex Rel Gaines v . Canada, 305 U. S. 337, 351; Sweatt v . Painter, 
339 U. S. 629, 635.



21
public health, convenience and good order of its people. 
But it is equally true that the police power, however broad 
and extensive, is not above the Constitution. When it 
speaks its voice must be heeded and it is the obligation of 
this court so to declare. But we need not labor the point 
for the precise question presented here is foreclosed by the 
decisions of the courts, both Federal and State. Buchanan 
v. Warley, 245 U. S. 60; Tyler v. Harmon, 104 So. 200; 
273 U. S. 668; City of Richmond v. Dean, 37 F. (2) 712; 
affirmed 281 U. S. 704; Shelley v. Kraemer, 334 U. S. 1, 
11; and the Courts of Georgia, Maryland, North Carolina, 
Oklahoma, Texas, and Virginia have also declared similar 
statutes invalid as being in contravension of the Fourteenth 
Amendment. Glover v. Atlanta, 148 Ga. 285, 96 S. E. 562 
(1918) ; Jackson v. State, 132 Md. 311, 103 A. 910 (1918) ; 
Clinard v. Winston-Salem, 217 N. C. 119, 6 S. E. (2) 867 
(1940) ; Allen v. Oklahoma City, 175 Okla. 421, 52 P. (2) 
1054 (1936) ; Liberty Annex Corp. v. Dallas, 289 S. W. 
1067 (Tex. Civ. App. 1927) ; Irvine v. Clifton Forge, 124 
Va. 781, 97 S. E. 310 (1918) .

In Buchanan v. Warley, supra, the Supreme Court in 
considering an ordinance of the City of Louisville, which 
it held to be unconstitutional, said that Colored persons 
have the right to purchase property and enjoy and use the 
same without laws discriminating against them solely on 
account of color. In an effort to avoid the impact of this 
decision appellants insist that the Buchanan case involved 
the right to dispose of property and not, as in the case at 
bar, the right of occupancy. The Supreme Court of Lou­
isiana, in considering an ordinance of the City of New Or­
leans in the case of Tyler v. Harmon, 104 So. 200, also at­
tempted to distinguish the Buchanan case on the same 
ground and found that the underlying reasons which 
prompted the Supreme Court to hold the ordinance of the 
City of Louisville unconstitutional were not pertinent to 
the ordinance of the City of New Orleans because there



22
was nothing in the New Orleans ordinance forbidding “a 
white man to sell his property to a colored man, or forbid­
ding a colored man to sell to a white man” in any com­
munity or neighborhood. On that basis, the Supreme Court 
of Louisiana held the ordinance of the City of New Or­
leans valid in so far as it forbade Negro tenants to occupy 
defendant’s cottages in a white community. On appeal, 
the Supreme Court reversed, finding the citation of Buch­
anan v. Warley, supra, sufficient to support its judgment. 
Harmon v. Tyler, 273 U. S. 668. The principle established 
in these cases was thereafter followed in City of Richmond 
v. Dean, 37 F. (2) 712; affirmed 281 U. S. 704. And in the 
recent case of Shelley v. Kraemer, 334 U. S. 1, 11, the Su­
preme Court in considering restrictions on the right of oc­
cupancy which had been created by private agreements 
again stated that legislation imposing restrictions on the 
right of occupancy solely because of color cannot be squared 
with the requirements of the Fourteenth Amendment.

We find no merit in appellant’s further contention that 
the court below erred in excluding certain evidence of a 
social and economic character. This evidence was irrele­
vant and immaterial to the issue of constitutionality.

There being no error, it follows that the decree below 
must be and it is

AFFIRMED.

RUSSELL, Circuit Judge, dissenting: The proposition 
that State law or ordinances are generally unenforceable 
when their operation is contrary to the Federal Constitu­
tion of course can not be disputed. However it is not true 
that every limitation or restriction of such a right is in all 
events subject to be struck down without determination of 
the law and facts then obtaining and giving rise to the en­
actment. In this case, the finding of the City Commission 
in its ordinance of August, 1949, which supplemented the



23
general zoning ordinance of Birmingham of 1926, that in 
the prevailing situation “breaches of the peace, riots, de­
struction of property and life,” which neither the City nor 
other law enforcement officers could prevent, would fol­
low attempts to violate the zoning restrictions, was entitled 
to some consideration. Even if the ordinance with such 
findings was nevertheless prima facie invalid upon constitu­
tional grounds, the enactment should not have been de­
stroyed unless and until the Court found that no sufficient 
danger was present to justify the dire apprehension of the 
Commission or to support its enactment. The Court could 
not judicially know, contrary to the findings of the legisla­
tive body, whether conditions in Birmingham were as de­
clared by such body, though it is to be hoped that such 
findings were and are exaggerated. However, if the find­
ings were established by evidence, declining to enjoin the 
enforcement of the ordinance would only give primacy to 
true general welfare over private rights—resulting from a 
determination of whose right should be subordinated, at 
least for the time being. To properly appraise the situa­
tion the Court should have heard the evidence offered in 
support of the legislative determination. Constitutional­
ity may, and frequently does, depend upon particular cir­
cumstances. I disapprove the holding implying that what­
ever the danger to the public welfare, it must be suffered 
and endured when opposed by the assertion of a constitu­
tional right to use one’s property without restriction. I 
do not understand Buchanan v. Warley, 245 U. S. 60, to 
require such a holding.

Other constitutional rights have been restricted because 
of the circumstances in which they were sought to be ex­
ercised. There comes to mind Mr. Justice Holmes’ oft re­
peated utterance in Schenck v. U. S., 249 U. S. 47, that “the 
most stringent protection of free speech would not protect 
a man in falsely shouting fire in a theatre and causing a 
panic,” and the principle of clear and present danger an-



24
nounced following it. Vested property rights (also consti­
tutionally protected) have been forced to yield to zoning 
ordinances which were determined not arbitrary or un­
reasonable. Hadacheck v. Los Angeles, 239 U. S. 394; 
Pierce Oil Corp. v. Hope, 248 U. S. 498; Standard Oil Com­
pany v. City of Tallahassee, 183 F. 2d 410.

If the legislative finding that an emergency existed was 
to be overlooked or disregarded, the city should have been 
allowed to introduce evidence of the true situation. There­
upon the Court could have determined the foundation and 
extent of danger and adjudged accordingly.

A True copy: 
Teste:

Clerk of the United States Court of 
Appeals for the Fifth Circuit.



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

NO.

CITY OF BIRMINGHAM, ET AL,
Petitioners (.Appellants below)

vs.

MARY MEANS MONK, ET AL,
Respondents (Appellees below)

BRIEF AND ARGUMENT IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI 

TO THE UNITED STATES CIRCUIT OF APPEALS 
FOR THE FIFTH CIRCUIT

H orace C. W ilkinson 
Special Counsel for Petitioners



S U B J E C T  I N D E X
Page

Dictum ought not to control-------------------------------------------  2
Inconveniences should be balanced----------------------------------- 3
Trial court should find facts essential to a decision of

constitutional questions -------------------------------------------  3
Equitable residential segregation as a preventive-----------------  4
Absolute rights and restrictable rights-------------------------------- 4
Bight to use is restrictable--------------------------------------------- 5
Economic considerations require residential segregation--------  6
Non-segregation results in blighted areas----------------------------- 7
Segregation per se not prohibited— ---------------------------------  9
Right of occupancy subordinate to other personal rights--------  9
Separation of the races is not unconstitutional--------------------10
Police power may be put forth in aid of what is

sanctioned by useage-------------,----------------------------------H
Conclusion ----------------------------------------------------------- -19

T A B L E  O F  C A S E S
Bordens Co. v. Baldwin, 293 U. S. 194------------------------ --- - 4
Boyer v. Garrett, 88 Fed. Supp. 353---------------------------------- 10
Buchanan v. Warley, 245 U. S. 60-------------------------------------  2
Buck v. Bell, 274 U. S. 200______________________________  9
Cantwell v. Connecticut, 310 U. S. 296-------------- ----------------  4
Cohens v. Virginia, 19 U. S. (6 Wheaton) 264.—----------------- 2
Gumming v. Richmond County Board of Education,

175 U. S. 528______________________________________  9
Denvard v. Housing Authority of Fort Smith, 203 Ark.

1050, 159 S. W. (2d) 764__________________________ 10
Dorsey v. Stuyvesant Town Corp., 87 N. E. (2d) 241-----------  7
Euclid v. Ambler Realty Co., 272 U. S. 365------------------------  5
Euclid v. Ambler, supra---------------    5
Favors v. Randall (DC PA) 40 F. Supp. 743-----------------------10
Gaines v. Canada, 305 U. S. 337---------------------------------------  9
Gompers v. U. S., 233 U. S. 604------------------------------------  4
Gong Lum v. Rice, 275 U. S. 78------------------------------------  9
Hadacheck v. Sebastian, 239 U. S. 394-------------------------------- 5
Harmon v. Tyler, 273 U. S. 668---------------------------------------  2
Hirahayshi v. U. S. Supra----------------------------------------------10
Housing Authority v. Higginbotham, 143 S. W. (2d) 95-------- 10
Jacobson v. Massachusetts, 197 U. S. 11----------------------------- 5
Korematsu v. U. S. Supra----------------------------------------------10
Marsh v. Alabama, 326 U. S. 501-517-------------------------------  4
Monk v. Birmingham, 87 Fed. 538----------------------------------  7



T A B L E  O F  C A S E S — (Continued)
Page

Muller v. Oregon, 208 U. S. 412__________________________ 5
Munn v. Illinois, 94 U. S. 1 IB____________________________ 5
Mutual Loan Co. v. Martell, 222 U. S. 225_______________  5
Nectow v. City of Cambridge, 277 U. S. 183_____________  4
Noble State Bank v. Haskell, 219 U. S. 104________________ 11
Oyama v. California, supra____________________________ 10
Pace v. State, 69 Ala. 231, 106 U. S. 583__________________ 10
Plessy v. Ferguson, 163 U. S. 537_________________________ 9
Plessy v. Ferguson, supra_______________________________ 10
Pierce Oil Co. v. Hope, 248 U. S. 498_____________________ 5
Reinman v. Little Rock, 237 U. S. 171___________________  5
Shelley v. Kraemer, 334 U. S. 1__________________________  3
Standard Oil Co. v. Tallahassee, 183 F. (2d) 410___________  5
State ex rel Carter v. Harper, 183 Wise. 148, 196

N. W. 451, 33 A. L. R. 269__________________________ 5
Story v. State. 178 Ala. 98; 59 So. 481_____________________10
Tanner v. Little, 240 U. S. 369__________________________  5
Traux v. Corrigan, 257 U. S. 312________________________ 11
U. S. v. Carolene Products Co., 304 U. S. 144________________ 4
U. S. v. Dennis, 183 Fed. (2d) 212________________________3
West Coast Hotel Co. v. Parrish, 300 U. S. 379_____________  5
West Chester R. R. Co. v. Miles, 55 Pa. St. 209 (1867)_________ 16
Yeiser v. Dysart, et al, 267 U. S. 540_______________________ 5

C O N S T I T U T I O N A L  P R O V I S I O N S
Alabama Constitution (1901) Sec. 256____________________ 10
Alabama Constitution (1901) Sec. 102______________ 1______10
Constitution of the United States, Article X_______________ 11

B I B L I O G R A P H Y  
American Institutions and Their Preservations,

Vol. 2, page 748___________________________________ 16
Appraisal Journal _____________________________________  7
Collier’s Weekly ______________________________________  6
21 Illinois Law Review_________________________________  6
Negro Digest _________________________________________ 12
Negro Housing ____________________________________  9-17
Punishment Without Crime___ __________________________  8
Race and Nationality __________________________________ 14
Review of the Society of Residential Appraisers____________  7
The American Journal of Sociology, Vol. 50________________ 13
The Cradle of the Confederacy_______________________ 15-16
The Negro in American Life__________________________14-17



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

NO.

CITY OF BIRMINGHAM, ET AL,
Petitioners (Appellants below)

vs.

MARY MEANS MONK, ET AL,
Respondents (.Appellees below)

BRIEF AND ARGUMENT IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI 

TO THE UNITED STATES CIRCUIT OF APPEALS 
FOR THE FIFTH CIRCUIT

H orace C. W ilkinson 
Special Counsel for Petitioners



2

B R I E F

In Support of Petition for Writ 
of Certiorari

1.

The Circuit Court of Appeals decided an important 
question of federal constitutional law with the respect of 
the applicability of the Fourteenth Amendment to laws 
establishing equitable residential segregation which has not 
been but should be settled by this Court.

The Circuit Court of Appeals and the District Court 
each mistakenly assumed that this case is controlled by the 
decision in Buchanan v. Warley, 245 U. S. 60, and a num­
ber of state and federal cases which allegedly follow it.

It may be conceded that there are expressions in the 
opinion in Buchanan v. Warley, supra, which might be in­
terpreted as indicating that this Court might be inclined 
against the position of the City of Birmingham in this case. 
However, “All is not gold that glitters”—even in an opin­
ion of this Honorable Court. General expressions—if they 
go beyond the case—“ought not to control the judgment in 
a subsequent suit when the very point is presented for de­
cision.”

Cohens v. Virginia, 19 U. S. (6 Wheaton) 264.

Buchanan v. Warley, supra, and the other cases cited in 
the majority opinion of the Circuit Court of Appeals van­
ish as authorities in the light of the rule that dictum ought 
not to control the judgment in a subsequent case.

Buchanan v. Warley, supra, and Harmon v. Tyler, 273 
U. S. 668, did not involve the validity of comprehensive 
equitable residential segregation under an ordinance neces­
sary to preserve the public peace and to safeguard the prop­
erty and safety of the citizens of a large municipality.



3
Buchanan v. War ley involved the right of a white seller 

to dispose of his property free from restrictions as to poten­
tial purchasers based on considerations of race or color.

Shelley v. Kraemer, 334 U. S. 1.

Shelley v. Kraemer, supra, involved state enforcement of 
restrictive covenants which required the divestment of title 
of any person who used his property in violation of the 
restriction. The court was careful to point out that the 
covenants involved did not seek to prescribe any particular 
use of the affected properties. The reverse is true in the 
case at bar.

The statement attributed to this Court by the Court of 
Appeals in commenting on Shelley v. Kraemer, supra, to 
the effect that this Court there stated:

“That legislation imposing restrictions on the right to
occupy solely because of color cannot be squared with
the requirements of the Fourteenth Amendment.”

was an expression beyond the case and should be consid­
ered in light of what was not involved. An equitable resi­
dential segregation zoning law was not involved and the 
statement quoted does not apply to a case in which it satis­
factorily appears that the public welfare requires such legis­
lation.

The evil in imposing restrictions on the right of occu­
pancy must be balanced against the gravity of the threat­
ened harm and discounted by its improbability.

U. S. v. Dennis, 183 Fed. (2d) 201, 212.

And that depends on evidence.
Supporting facts essential to a decision of constitutional 

questions of novel and far reaching importance should be 
definitely found by the lower court upon adequate evi­
dence.



4
Nectow v. City of Cambridge, 277 U. S. 183;
Bordens Co. v. Baldwin, 293 U. S. 194;
U. S. v. Carotene Products Co., 304 U. S. 144;
Gompers v. U. S., 233 U. S. 604.

We attempted in the District Court to show actual, di­
rect, serious, injury to the City of Birmingham, as well as 
injury of the same character to its inhabitants. The Dis­
trict Court and the Circuit Court of Appeals declined to 
allow us to do so.

In this connection it is significant that no writer of re­
pute, so far as we have been able to find, has ever claimed 
that equitable residential segregation has ever produced 
riots, bloodshed, loss of life, dimunition of public revenue, 
depressed property values or mongrelization. On the other 
hand, the evidence is mountain high that in the absence 
of equitable residential segregation, attempted invasion of 
white residential sections by negroes, and in a number of 
instances, the attempted invasion of negro neighborhoods 
by whites, has almost without exception produced race 
riots, increased racial tension, and resulted in loss of life 
and damage to property, and depressed property values, in 
such widely scattered areas as New York, Illinois, Michi­
gan, California, Georgia, Kansas, Texas, Tennessee, Penn­
sylvania, Oklahoma, Missouri, Ohio, Arizona, Louisiana 
and elsewhere.

There is a natural disposition to self segregation and 
the zoning law protects race preferences and race privil­
eges of both races which merit protection.

The Fourteenth Amendment embraces two concepts of 
liberty—absolute rights and restrictable rights.

Cantwell v. Connecticut, 310 U. S. 296.

The right to own real property is absolute but,

“Ownership does not always mean absolute dominion.”
Marsh v. Alabama, 326 U. S. 501-517.



5
If the right to use property is equal in dignity to the 

right to own it, that is to say, that if the right to use is an 
absolute and not a restrictable right, then we could never 
have a zoning law.

Legislation cannot be judged by theoretical standards; 
it must be tested by the concrete conditions which in­
duced it.

Mutual Loan Company v. Mart ell, 222 U. S. 225. 
Tanner v. Little, 240 U. S. 369.
Yeiser v. Dysart, et al, 267 U. S. 540.

The right to occupy—-to use real property for a particu­
lar purpose is restrictable under the police power.

Euclid v. Ambler Realty Co., 272 U. S. 365.
Pierce Oil Co. v. Hope, 248 U. S. 498.
Hadacheck v. Sebastian, 239 U. S. 394.
Reinman v. Little Rock, 237 U. S. 171.
Munn v. Illinois, 94 U. S. 113.
Standard Oil Co. v. Tallahassee, 183 F. (2d) 410.

Reasonable restraints upon the use of real property are 
not inhibited by the Fourteenth Amendment.

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

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

Euclid v. Ambler, supra.
Muller v. Oregon, 208 LJ. S. 412.
Jacobson v. Massachusetts, 197 U. S. 11.
West Coast Hotel Co. v. Parrish, 300 U. S. 379.



6
Most immoral persons have an absolute right to own 

real property, but even the Pope of Rome has no right to 
devote property of the church to immoral purposes.

The appraisal authorities hold that residential property 
values depreciate from twenty-five to forty percent in the 
absence of equitable residential segregation. See the “Ap­
praisal Journal,” January, 1944 and February, 1940; “Prin­
ciples of City Land Values” (Hurd) 77-78.

In 21 Illinois Law Review 716, it is pointed out that 
restrictions aid rather than restrict free alienation of resi­
dential property. Business property is selected by a man 
from an economic standpoint and residential property by 
a woman from a social standpoint.

“Principles of City Land Values,” (Hurd) 77-78.

In the 21 Illinois Law Review at page 176 it is pointed 
out that where there is no residential segregation the fear 
of negro invasion materially interferes with the profitable 
sale of homes. The conclusion is supported by findings 
of the New York Commission on the condition of the col­
ored population, page 74, Pennsylvania Commission on the 
condition of the urban population, page 131, the Inter­
racial Commission of the State of Minnesota reported in 
the July 27, 1947 issue of the ( (New York Times.”

Leslie Vallie, writing in “Collier’s Weekly,” November 
23, 1946 on the situation in Detroit said, “Residential seg­
regation has been given federal sanction in San Francisco, 
Richmond, Sacramento and smaller places in California 
and in Vancouver, Bremerton, Fort Washington, Renton, 
and Tacoma.”

Segregation enables a negro to find among his own peo­
ple as many opportunities in the higher walks of life as 
is found among the white people. In many southern states, 
there are more negroes holding high positions in profes­
sional life than in the entire territory of Brazil, where there 
is no segregation.



In Dorsey v. Stuyvesant Town Corp., 87 N. E. (2d) 241, 
the company admitted its policy of racial exclusion and as­
serted that the successful operation of its project and the 
safety of the investment of funds required that negroes 
should not be accepted as tenants in this project. (Yale Law 
Review, Volume 57, Page 439) .

In the “Appraisal Journal,” the American Institute of 
Real Estate Appraisers explains to the real estate fraternity 
why white area is “blighted” because a negro family moves 
in.

“Why is an area blighted because a Negro family 
moves in? What does the presence of several Negro fam­
ilies in a block do to the rental return on a given prop­
erty? What happens to the block or more of housing 
which lies between the ‘all-white’ and the ‘all-black 
groups?

“Why must there always be this sharply drawn line 
between the groups. And in searching for the answer 
we come at once upon the subject of miscegenation. It 
is the ‘end-all’ argument behind which non-thinking peo­
ple retire. From a psychological, social, and biological 
standpoint marriage between the races does stand as a 
barrier to complete fraternity and it is a locked door 
against equality. It is a mountain in the pathway of the 
forward moving forces, but it is a mountain which 
neither white nor black would wish to see moved. Like 
unto like is a law which carries terrible penalties if 
broken.”

In the “Review of the Society of Residential Appraisers,” 
Louis M. Pratt of Pasadena, California, points out the ad­
vantages of segregation in the following language:

“In a mostly black district, values will be higher and 
much more stabilized, and property more salable than 
in a neighborhood in a transitional stage from white to 
colored. Even shacks are salable in a black district. But 
let one Negro move into a white district and it puts a 
quietus on all sales of nearby residences.”



8
In S. Andi! Finebert’s “Punishment Without Crime,” 

Pages 97-98 (1949) , the author points out that honest ap­
praisers follow economic laws, saying:

“The Federal Housing Administration in guarantee­
ing mortgages has followed the practice of respecting lo­
cal racial patterns instituted by an earlier government 
agency, the Home Owner’s Loan Corporation. The 
FHA ‘Underwriting Manual’ of 1947 reads: ‘If a neigh­
borhood is to retain stability, it is necessary that proper­
ties shall continue to be occupied by the same social and 
racial classes.’ Valuators are advised in the Manual that 
deeds should include ‘Prohibition of the occupancy of 
properties except by the race for which they are in­
tended.’ In response to public pressure the Federal 
Housing Administration eliminated these strictures. But 
the removal of such provisions from the written code 
does not necessarily alter the practices of FHA appraisers, 
who consider the mingling of racial groups an unaccept­
able risk.” (PP. 97-98).

Numerous special city commissions have made surveys 
and reports on social economic conditions relating to racial 
problems. The conclusions of these commissions have 
been almost identical. An example follows. The Chicago 
Commission on Race Relations reported that:

“One of the strongest influences in creating and foster­
ing race antagonism in Chicago is the general belief 
among whites that the presence of Negroes in a neigh­
borhood inevitably and alone depreciates the market 
value of real estate, and this belief is commonly accepted 
as a valid reason for unfriendliness toward Negroes as 
individuals and as a race.” (Page 41) .

“A large segment of the population believes that it 
gains from residential segregation. For the majority of 
northern urban dwellers, spatial separation of Negroes 
and whites has become a symbol of protection against 
Negro neighbors.” The Negro Ghetto, Page 272.



9
The whole subject is admirably summed up in the fol­

lowing language lifted from Page 218 of Negro Housing:

“So men still argue that every man’s house is his castle, 
and that property rights give entire control of everything 
within the boundaries of any plot of land down through 
to China and up to the sky. Most men, however, have 
been convinced by common sense and experience that 
many individual preferences must be surrendered for the 
common good. Four thousand years ago Confucius, the 
wise man of Shantung, said: ‘The value of thy house, de- 
pendeth on thy neighbor.’ Problems of ‘health, safety, 
morals and general welfare’ make the old adage apply 
with great force to every piece of property in a city where 
overcrowded streets, land and houses compel the observ­
ance of laws which restrict, but at the same time give 
protection.”

We have been unable to find any case intimating that the 
right to use property should be permitted to plague the 
average or dominant human sensibilities.

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

Plessy v. Ferguson, 163 U. S. 537.
Gaines v. Canada, 305 U. S. 337.
Cumming v. Richmond County Board of Education, 

175 U. S. 528.
Gong Lum v. Rice, 275 U. S. 78.

Personal rights are restrictable. The right to live on a 
particular piece of land is of no higher character than the 
personal right to live without being sterilized, - -

Buck v. Bell, 274 U. S. 200. 

or the personal right to work long hours. - -

Muller v. Oregon, 208 U. S. 412.



10
The state may require separation of the races in schools.

Alabama Constitution (1901) Sec. 256.
Plessy v. Ferguson, supra.
Gaines v. Canada, supra.
Camming v. Richmond County.
Board of Education, supra.

In parks, playgrounds, swimming pools, and golf courses. 

Boyer v. Garrett, 88 Fed. Supp. 353.

The state may prohibit intermarriage between whites 
and negroes.

Alabama Constitution (1901) Sec. 102.
Pace v. State, 69 Ala. 231, 106 U. S. 583.
Plessy v. Ferguson, supra.
Story v. State, 178 Ala. 98; 59 So. 481.

Equitable residential segregation has been approved by 
state and federal courts.

Favors v. Randall, (DC Pa.) 40 F. Supp, 743.
Denard v. Housing Authority of Fort Smith, 203 Ark. 

1050, 159 S. W. (2d) 764.
Housing Authority v. Higginbotham, 143 S. W. (2d) 

95.

The racial descent of a citizen may furnish a valid basis, 
under the circumstances, for legislation restricting personal 
rights.

Oyama v. California, supra.
Hirabayshi v. U. S., supra.
Korematsu v. U. S., supra.

In adjusting legislation to the need of the people of a 
State, the legislature has a wide discretion and it may be 
fully conceded that perfect uniformity of treatment of all



11
persons is neither practical nor desirable, that classification 
of persons is constantly necessary. Classification is the 
most inveterate of our reasoning processes. We can scarce­
ly think or speak without consciously or unconsciously ex­
ercising it. It must therefore obtain in and determine 
legislation; but it must regard real resemblances and real 
differences between things, and persons, and class them in 
accordance with their pertinence to the purpose in hand.

Tmax v. Corrigan, 257 U. S. 312.

Our immigration laws and alien land laws are based on 
race. The Federal Government is a government of limited 
powers. Is its limited powers not greater than the re­
tained powers of the States? The nation cannot deny to 
the States a basis for legislation protecting the public wel­
fare which the nation itself uses in protecting the national 
welfare.

Article X—
Constitution of the United States.

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

Noble State Bank v. Haskell, 219 U. S. 104,

One of the most important and useful purposes of the 
Birmingham Ordinances is the socially desirable result of 
deterring amalgamation. That the intermarriage and con­
sequent blending of some races, or of related groups within 
certain large racial categories, is not objectionable is gen­
erally accepted. But the amalgamation of such races as the 
Germanic and Anglo-Saxon on the one hand and the Ne­
gro race on the other is decidedly and demonstrably un­
desirable.



12
The program of the National Association for the Ad­

vancement of Colored People is stated by Professor G. A. 
Borgese in the Negro Digest of December, 1944, Page 31, 
as follows:

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

*  *  *

. . . All will be done only when the bedrooms open 
and the two bloods mix freely in many marriages, free 
from blame and bane.

# # #

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

*  # *

. . ..a proposition of this kind should be the leading 
thought of humanitarianism and science in their next 
phase of growth.

# # *
“Mixed marriages would be insured against racial 

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

“ . . . The color line should blur almost past recogni­
tion in the course of the very next generations.”
To like effect are statements of W. E. DuBois, Mary 

Bethune, Sterling A. Brown, W. E. B. DuBois, Gordon 
Blaine Hancock, Leslie Pinckey Hill, Langston Hughes, 
Rayford W. Logan, Frederick Douglas Patterson, A. Philip 
Randolph, George S. Schupler, Willard S. Townsend,



13
Charles H. Wesley, Doxey A. Wilkerson, and Roy Wilkins. 
Their articles in “What the Negro Wants”—University of 
North Carolina Press (1944)—leaves no doubt in any ra­
tional mind that Professor Borgese was right when he said 
that the negroes’ ultimate aim is to open the bedrooms and 
let

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

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

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

“In short, they want to be known unqualifiedly as 
American citizens, which desire, in our capitalistic so­
ciety, means assimilation and amalgamation.”

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

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

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

The author refers to the views of Mrs. Roosevelt and to 
the opinion of some biologists and anthropologists that 
mixed marriages do not necessarily result in an inferior off­
spring, and concludes:

“Most white Americans remain nonetheless opposed 
to intermarriage and many of them to the abolition of



14
public segregation as a possible first step toward it.” 
Page 28.

Professor Dowd points out (The Negro in American 
Life) that like the law of the Medes and Persians, the at­
titude of the Caucasian toward race intermixture with the 
Negro does not change.

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

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

“It (amalgamation) is a process that takes place al­
most automatically when two or more racial groups are 
brought into juxtaposition.” Page 88.
The Professor, however, warns against experimenting 

with amalgamation. In speaking of that proposed solution 
he says:

“This solution would certainly be repugnant to a large 
portion of the members of both groups, and would cer­
tainly require a profound alteration in existing senti­
ments. What its final outcome would be in terms of 
national solidarity and human quality, lies entirely be­
yond the scope of present scientific prediction. One 
thing at least can be said—such a program should be 
adopted with great caution, because the process would 
be entirely irreversible. If it were discovered eventually 
that it was a mistaken policy, there would be nothing 
that could be done about it. You can no more unmix 
races than you can unscramble the proverbial egg. This



15
would seem to be an excellent case for the application 
of the good old maxim, in case of doubt, don’t.”

Human experience teaches that social and political as­
sociation lead to and will bring about intermarriage be­
tween the people of different races. One follows the other 
as night follows the day.

Our forefathers carefully guarded racial purity in the 
early days.

“The State of Massachusetts had been earliest to enact 
a law against intermarriage between the Indian and the 
Anglo-Saxon. It was entitled ‘An Act for the better 
preventing of a spurious or mixed issue.’ Our fore­
fathers, understanding the inferior character of the col­
ored faces, refused to permit amalgamation, and visited 
il with the severest penalties of law. They possessed a 
lofty pride of race, which, in a great measure, has been 
lost to their descendants. Their firm resolve to preserve 
the purity of the race, and to continue its dominion over 
the land, was strengthened by the aspect presented by 
Central and South America, and the Spanish Isles. There 
the races had been received into political fellowship; the 
white blood had been adulterated, and government had 
become a by-word and reproach.”—-The Cradle of the 
Confederacy (Hodgson) 11)6-108.

Massachusetts did not stand alone, in prohibiting mis­
cegenation.

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

*  *  *

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



16
“ . . . Not all the logic nor all the rhapsodies of the 

new generation of humanitarians, who looked to equal 
political and civil rights between the white man and the 
Indian could convince the bold Saxons who won their 
independence from Great Britain that it was their duty 
to adulterate their white blood and sink to a level with 
the descendants of the Castilian of the Southern Conti­
nent. No Federal agent to the Indian tribes could con­
vince them that such was their duty. The Indians must 
go.”

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

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

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

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

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

“In the long run, military conquest by a superior 
people would be highly preferable to a conquest by emi­
gration by people with inferior family stock endow­
ments.”

American Institutions and Their Preservations, by 
William W. Cook, Vol. 2, Page 748.

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

“Adherence to our racial standards is one of the essen­
tial institutions of American life. Unless this basic in­
stitution be preserved and developed the essential char-



17
acter and genius of other American institutions must 
disappear.”

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

In NEGRO HOUSING, Page 213, we find:

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

Professor Dowd in his Book, THE NEGRO IN AMER­
ICAN LIFE, Pages 474-475, says:

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

J. M. Mecklin, of the Pittsburgh Psychological Insti­
tute, in his book, Democracy and Race Friction, ex­
presses his opinion as follows: “Viewed from the stand­
point of the good of society as a whole, laws requiring 
social segregation in the South are undoubtedly based 
upon a sound social philosophy.”

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

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

“What does the Negro gain by segregation? Fie finds 
in the South a large field of employment open to him 
with little or no competition from the whites. In other 
words, segregation enables him to lead an easier and less 
strenuous existence, which insures to him a diminishing 
death-rate and a higher birth-rate; also, it enables him 
to resist the downward pressure into poverty, vice, and



18

crime. Above all, segregation builds up cooperation 
and race pride, and, by diminishing the incentive to imi­
tate the whites, tends to bring out in the race its special 
aptitudes and geniuses. The progress of mankind can 
be best advanced by each race’s developing the genius 
and culture peculiar to it instead of striving to imitate 
another.”

If it was intended that the right to occupy property in 
a particular district as a residence should never be abridged, 
then the Constitution would have said so in clear and ex­
plicit language and in our humble judgment would not 
have left such intention to surmise and conjecture.

If evils result from a mixture and mingling of the races 
socially, if mixed residential zones are harmful to black and 
white alike, then it would seem to be a perversion of the 
constitution to make of it an obstacle to the prevention of 
evil—when the remedy does not interfere with ownership 
of property nor with it use—except to the extent necessary 
to avert the evil. Conceivably, the public welfare might 
be menaced more by the presence of negroes in white resi­
dential sections or the presence of whites in a negro resi­
dential section, than by the presence of a slaughter house, 
a glue factory, or a fertilizer plant. None of these things 
produce riots, or an amalgamation of the races. Members 
of either race may reside in their immediate vicinity and 
maintain their racial integrity. On the other hand, as far 
as we can recall, every court and every writer who has dis­
cussed the matter, are in accord on one proposition, viz: 
juxtaposition of the races results in crossing the color line 
and mongrelization.



19
CONCLUSION

The question of the application of the Fourteenth 
Amendment to social and economic problems is an irri­
tating enigma. The application of the Fourteenth Amend­
ment to those problems has, for the most part, been halting 
and changeable, chaotic and conflicting. The process of 
trial and error by which a social and economic interpreta­
tion of that Amendment is still being evolved has had cer­
tain wholesome results. The governing body of the City 
of Birmingham has believed for more than twenty years 
that equitable residential segregation is necessary to pre­
serve the public peace and to safeguard the property and 
the safety of its citizens. For the same period of time, the 
same governing body has been of the opinion that the zon­
ing laws of the City of Birmingham do not conflict with 
the Constitution of the United States. It is safe to say that 
the members of the City Commission are in a better posi­
tion to judge of the necessity for such a measure than the 
members of this Court, the members of the Court of Ap­
peals and the District Judge.

If, in truth and in fact, as we charge and verily believe, 
equitable residential segregation is necessary and essential 
to public safety, stabilized property values, proper munici­
pal services, aleviation of racial tension, and the pursuit of 
happiness in Birmingham, no provision in the Constitu­
tion of the United States stands in the way.

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

*  # *

“A regulatory zoning ordinance, which would be clearly 
valid as applied to the great cities, might be clearly invalid 
as applied to rural communities.”

Euclid v. Ambler Company, 272 U. S. 387.



20
“When clear and present danger of riot, disorder, inter­

ference with traffic upon the public streets, or other imme­
diate threat to public safety, peace, or order, appears, the 
power of the State to prevent or punish is obvious.”

Cantwell v. Connecticut, 310 U. S. 308.

Neither this court nor the District court knows what the 
facts are. The petitioners propose to substitute sworn tes­
timony for political opinions.

Only an arbitrary, unnecessary restriction on the right 
to use property is an abridgment of the privileges and im­
munities of a citizen.

Respectfully submitted,
H orace C. W ilkinson, 
Special Counsel for the 
City of Birmingham.

CERTIFICATE

I hereby certify that I have on this day mailed a copy of 
the foregoing application for a writ of certiorari and a copy 
of the foregoing brief to Arthur Shores, Attorney for the
Respondents, properly addressed to his office in

This th^T. day o f ^ ^ < £ _ham, Alabama, postage prepaid 
1951.

<£>-
H orace C. W ilkinson