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"A person owning a body of land, and selling a portion thereof, may, for the benefit of his remaining land, impose upon the land granted any restrictions not against public policy, that he sees fit, and a court of equity will generally enforce them. Davison v. Taylor, 196 Mich. 605, 611, 162 N. W. 1033.

"The reasons urged on behalf of defendants, why these general rules are not decisive of the issue, are:

"(1) Because the restriction contravenes rights granted to defendants by the 13th and 14th Amendments to the Constitution of the United States.

"(2) Because the restriction is contrary to public policy.

"These reasons will be discussed in their order.

"1. Since the days of the Civil Rights Cases, the law has been regarded as settled that the provisions of the 13th and 14th Amendments applied to legislative acts of the state, rather than the actions of individuals. In the Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct, Rep. 18, the United States Supreme Court, in passing upon the scope of these amendments, said:


"It is state action of a particular character that is prohibited. dividual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope.'

"And again in United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588, it is said:

"The inhibition of the 14th Amendment applies exclusively to actions by the state, and has no reference to actions by individuals.'

"In an exhaustive opinion in Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 138, the court said: "The object of the amendment [14th] was to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish the distinction based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the

two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought in contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of state legislatures in the exercise of their police powers.'

"It is interesting to note that in the foregoing case the Supreme Court of the United States sustained the validity of a statute of Louisiana providing for the separation of races in passenger cars as not being repugnant to the provisions of the 14th Amendment.

"It would seem settled by the foregoing decisions of the highest court of our land that the provisions of the 13th and 14th Amendments cannot be invoked in the present case. The issue presented arises out of individual rather than state action, and is to be determined wholly as a domestic issue. The case of Gandolfo v. Hartman, 16 L.R.A. 277, 49 Fed. 181, cited by defendants, has but little bearing on the issues presented. In that case a covenant not to rent property to a Chinaman was held to be void and unenforceable. The effect of the 14th Amendment was discussed by the court, but the case appears also to have turned upon the provisions of the treaty with China which guaranteed its citizens the equal protection of our laws.

"2. Is the restriction contrary to public policy?

"It has been said that certain acts are contrary to public policy so that the law will refuse to recognize them when they have a mischievous tendency so as to be injurious to the interests of the state. This brings up the question as to what interests of the state are likely to be injured if an owner of property, for reasons which are satisfactory to himself, refuses to sell himself, or permit his assignors to sell, to certain persons who may be distasteful to him as neighbors. Are there any interests

(218 Mich. 625, 188 N. W. 330.)

of the state which will be promoted or advanced compelling the creation of such a condition in the community? The law is powerless to eradicate racial instincts or to abolish distinctions which some citizens do draw on account of racial differences in relation to their matter of purely private concern. For the law to attempt to abolish these distinctions in the private dealings between individuals would only serve to accentuate the difficulties which the situation presents.

"The precise issues presented have been squarely before the courts of last resort of several states, and have been decided adversely to the contentions of defendants.

"In Los Angeles Invest. Co. v. Gary, 181 Cal. 680, 9 A.L.R. 115, 186 Pac. 596, the court distinguished between a restriction against the sale and one against the occupancy of certain property by persons other than of the Caucasian race. The former was held invalid, as an unlawful restraint on alienation, while the latter was upheld.

"In Koehler v. Rowland, 275 Mo. 573, 9 A.L.R. 107, 205 S. W. 217, the supreme court of Missouri held that a condition in a deed against the transfer, lease, or renting of the property in question to negroes, was one which the vendor had a right to make, and was not void on the ground of public policy. The same court, in Keltner v. Harris, Mo.

196 S. W. 1, also held that where an owner of real estate made a contract of sale of the same to a white man, and after making the deed discovered that it was made to a colored man, for whom the white man was merely an agent, the conveyance would be voided on the ground of fraud, saying: 'If it was distasteful to plaintiff to have a colored man as his adjoining neighbor, he had the legal right to refuse to sell to him or his agents the property in controversy. In other words, no man is bound to sell his property to a proposed purchaser whose presence is unsatisfactory to him as a neighbor, whether he be

white, black, or of some other color.'

"The same question was also before the supreme court of Louisiana in Queensborough Land Co. v. Cazeaux, 136 La. 724, L.R.A.1916B, 1201, 67 So. 641, Ann. Cas. 1916D, 1248, where it was held that a condition in a deed that the grantee should not sell to negro did not violate the provisions of the 14th Amendment, and was not against public policy.

"One of the purposes of the restriction in the instant case was apparently to preserve the subdivision as a district unoccupied by negroes. Whether this action on the part of the owner was taken to make the neighborhood more desirable in his estimation, or to promote the better welfare of himself and his grantees, is a consideration which I do not believe enters into a decision of the case. So far as I am able to discover, there is no policy of the state which this action contravenes. Were defendants' claim of rights based upon any action taken by the authority of the state, an entirely different question would be presented.

"Defendant's motion to dismiss the bill of complaint will therefore be denied. The injunction heretofore issued is, however, broader than warranted by the provisions of the restriction. The restriction covers the occupancy of the property by a colored person only. In terms at least it would not be violated by leasing the same to a colored person so long as such person did not occupy it. The temporary injunction. heretofore issued will therefore be modified to the extent of prohibiting defendant from occupying the premises himself, or from permitting the same to be occupied by a colored person, and, as so modified, will be made permanent. Glenn C. Gillespie, Circuit Judge."

Á decree was made in accordance with the opinion. The case is brought here for review by appeal.

Counsel urge the same defenses that were urged in the court below. The following cases are cited by


counsel for the appellant: Guarantee & T. Co. v. Garrott, 42 Cal. App. 152, 183 Pac. 470; Buchanan v. Warley, 245 U. S. 74, 62 L. ed. 160, L.R.A.1918C, 210, 38 Sup. Ct. Rep. 16, Ann. Cas. 1918A, 1201; Ferguson v. Gies, 82 Mich. 358, 9 L.R.A. 589, 21 Am. St. Rep. 576, 46 N. W. 718; Gandolfo v. Hartman, supra; Windemere-Grand Improv. & Protective Asso. v. American State Bank, 205 Mich. 539, 172 N. W. 29; 18 C. J. pp. 397-399; and other authorities. Some of these authorities do not sustain the contention of counsel.

We quote 18 C. J. 397, as follows: "While restrictions against the use of property held in fee are not favored, yet where the intention of the parties is clearly manifested in the creation of the restrictions, they will be enforced in equity. Any use in contravention of the terms and objects of such covenants will constitute a breach for which relief may be obtained. Covenants restraining the use of real property afford an instance of that class of cases in which equity will charge the conscience of a grantee of land with an agreement relating to the land, although the agreement neither creates an easement nor runs with the land. The jurisdiction is not confined to cases in which an action at law can be maintained, but such covenants, although not binding at law, may be enforced in equity, provided the grantee has taken with notice of the covenants," -citing many cases in the notes.

In Windemere-Grand Improv. & Protective Asso. v. American State Bank, 205 Mich. 539, 172 N. W. 29, it was held the restrictions would not be enforced in equity where the character of the locality had changed.

In Ferguson v. Gies, 82 Mich. 358, 9 L.R.A. 589, 21 Am. St. Rep. 576, 46 N. W. 718, this court gave effect to the plain provision of a statute.

A reference to the other cases will show them easily distinguishable from the instant case.

Counsel say in the brief:

"Under the theory of our American democracy and citizenship, negroes, or any other race or class, ought not now be forced to stand and plead for right, justice, and equity which ought to be the common heritage of all men by virtue of their citizenship and domicil within the jurisdiction of the United States. If the opinion of the learned trial judge is affirmed, it will open a wedge to all kinds of discrimination, wrongs, and injustice to a vast number of American citizens of African descent. Slavery was once defended by church and statesmen, but who to-day would want to be classified as an upholder of such a vile institution?

"Such a restriction as the one referred to, if upheld, would place the negro and people of other sects and creeds in the same category as slaughterhouses, livery stables, tanneries, garages, etc., and brand them as a nuisance, loathsome and undesirable in neighborhoods.

"Would the learned trial judge's decision stand the test of time? Will there always exist in this country conditions whereby judicial decision will band 10,000,000 of people, as it affects the negro, 3,000,000 as it affects the Jew, and about 30,000,000 as it affects the foreigner, and equally as many as it affects the Catholic, thus placing all of these classes in the list of undesirables?

"We think the learned trial judge's decision in this case, if affirmed, would in a short period of time take the course of the Dred Scott Decision written by Mr. Justice Taney."

We think the counsel has entirely

misapprehended the issue involved. Suppose the situation was reversed. and some negro who had a tract of land platted it and stated in the recorded plat that no lot should be occupied by a Caucasian, and that the deeds that were afterwards executed contained a like restriction; would anyone think that dire results to the white race would follow an enforcement of the restrictions? In

(218 Mich. 625, 188 N. W. 330.)

the instant case the plat of land containing the restriction was of record. It was also a part of defendant's deed. He knew or should have known all about it. He did not have to buy the land, and he should not have bought it unless willing to observe the restrictions it contained.

The issue involved in the instant case is a simple one, i. e., shall the law applicable to restrictions as to occupancy contained in deeds to real estate be enforced, or shall one be

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Provision in deed discriminating against persons on account of race, color, or religion.

This annotation is supplementary to that in 9 A.L.R. 120.

The reported case (PARMALEE V. MORRIS, ante, 1180) and Corrigan v. Buckley (1924) - App. D. C., 299 Fed. 899, appear to be the only cases in point which have been decided since the previous annotation.

The principle involved in the decision of Los Angeles Invest. Co. v. Gary (1919) 181 Cal. 680, 9 A.L.R. 115, 186 Pac. 596, that a covenant in a deed prohibiting the occupation of the property by a person other than a Caucasian is valid, has been followed by both of these new cases in holding that such a provision prohibiting the occupation of the property by negroes is also valid.

And the validity of a covenant or restriction forbidding the sale of property to a negro has been upheld in Corrigan v. Buckley (D. C.) supra, as it was in Queensborough Land Co. v. Cazeaux (1915) 136 La. 724, L.R.A. 1916B, 1201, 67 So. 641, Ann. Cas. 1916D, 1248, and in Koehler v. Rowland (1918) 275 Mo. 573, 9 A.L.R. 107, 205 S. W. 217, both cited in the annotation in 9 A.L.R. at pages 120, 121.

In both the PARMALEE and the Corrigan Cases these provisions have been 38 A.L.R.-75.

upheld upon the ground that they are not against public policy and that they do not violate the 14th Amendment. The Corrigan Case further upholds such a covenant against the contention that it deprives a negro of property without due process of law. And in both of these cases owners of adjoining lots obtained injunctions restraining negroes, who had contracted to purchase property, from doing so.

In the Corrigan Case, in reply to a claim of protection under a certain act of Congress, the nature of which is not disclosed, the court remarked that "this legislation was enacted to carry into effect the provisions of the Constitution. The statutes, therefore, can afford no more protection than the Constitution itself. If, therefore, there is no infringement of defendant's rights under the Constitution, there can be none under the statutes." The act relied upon was undoubtedly of a different sort than the California statute making conditions restraining alienation void when repugnant to the interest created, under which it was held in Los Angeles Invest. Co. v. Gary (Cal.) supra, that a condition forbidding a sale to one other than a Caucasian would be void. E. W. H.




California Supreme Court (In Banc) - March 4, 1925.
(-Cal. 234 Pac. 398.)

Fisheries, § 9-prohibition of use in reduction plant.

1. The state may prohibit the use in a reduction plant of fish fit for human consumption.

[See note on this question beginning on page 1196.]

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2. When a proviso in the nature of an exception to a general statute is invalid, the general provisions of the statute are not invalidated thereby unless it clearly appears that the provisions of the exception are so intimately and inherently related to and connected with the general provisions to which it relates that the legislature would not have enacted the latter without the former.

[See 6 R. C. L. 121, 2 R. C. L. Supp. 33, 4 R. C. L. Supp. 384, 5 R. C. L. Supp. 322.]

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6. Public policy aims to protect and conserve food fish for the benefit of present and future generations of the people of the state and the devotion of such fish to the purposes of human consumption.

[See 11 R. C. L. 1041, 2 R. C. L. Supp. 1352.]

Constitutional law, § 81 - delegation of legislative power effect.

7. An act permitting a commission to authorize the use of various percentages of catches of food fish in reduction plants is not invalid as vesting an unlawful discretion in the commission where the percentages to be allowed are to depend upon findings of facts after a hearing that there is no market for the fish and that their use in the reduction plant will not tend to impair or deplete that species of fish. .

Constitutional law, § 81

right of legislature to delegate power. 8. The legislature may confer up on an administrative board or officer a large measure of discretion, provid ed the exercise thereof is governed and controlled by rules prescribed therefor.

[See 6 R C. L. 177; see note in 12 A.L.R. 1435.]

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