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“A person owning a body of land, two races upon terms unsatisfactory and selling a portion thereof, may, to either. Laws permitting and for the benefit of his remaining even requiring their separation in land, impose upon the land granted places where they are liable to be any restrictions not against public brought in contact do not necessarily policy, that he sees fit, and a court imply the inferiority of either race of equity will generally enforce to the other, and have been generthem. Davison v. Taylor, 196 Mich. ally, if not universally, recognized

.' 605, 611, 162 N. W. 1033.

as within the competency of state “ “The reasons urged on behalf of legislatures in the exercise of their defendants, why these general rules police powers.' are not decisive of the issue, are: "It is interesting to note that in

“(1) Because the restriction con- the foregoing case the Supreme travenes rights granted to defend- Court of the United States sustained ants by the 13th and 14th Amend the validity of a statute of Louisiana ments to the Constitution of the providing for the separation of racUnited States.

es in passenger cars as not being (2) Because the restriction is repugnant to the provisions of the contrary to public policy.

14th Amendment. “These reasons will be discussed “It would seem settled by the in their order.

foregoing decisions of the highest "1. Since the days of the Civil court of our land that the provisions Rights Cases, the law has been re- of the 13th and 14th Amendments garded as settled that the provi- cannot be invoked in the present sions of the 13th and 14th Amend-· case. The issue presented arises ments applied to legislative acts of out of individual rather than state the state, rather than the actions of action, and is to be determined individuals. In the Civil Rights wholly as a domestic issue. The Cases, 109 U. S. 3, 27 L. ed. 835, 3 case of Gandolfo v. Hartman, 16 Sup. Ct. Rep. 18, the United States L.R.A. 277, 49 Fed, 181, cited by deSupreme Court, in passing upon the fendants, has but little bearing on scope of these amendments, said: the issues presented. In that case

"'It is state action of a particular a covenant not to rent property to character that is prohibited. In- a Chinaman was held to be void and dividual invasion of individual unenforceable. The effect of the rights is not the subject-matter of 14th Amendment was discussed by the amendment. It has a deeper and the court, but the case appears also broader scope.'

to have turned upon the provisions “And again in United States v. of the treaty with China which Cruikshank, 92 U. S. 542, 23 L. ed. guaranteed its citizens the equal 588, it is said:

protection of our laws. "The inhibition of the 14th “2. Is the restriction contrary to Amendment applies exclusively to public policy? actions by the state, and has no ref- “It has been said that certain acts erence to actions by individuals.' are contrary to public policy so that

"In an exhaustive opinion in the law will refuse to recognize Plessy v. Ferguson, 163 U. S. 537, them when they have a mischievous 41 L. ed. 256, 16 Sup. Ct. Rep. 138, tendency so as to be injurious to the the court said: "The object of the

'The object of the interests of the state. This brings amendment [14th] was to enforce up the question as to what interests the absolute equality of the two rac- of the state are likely to be injured es before the law, but in the nature if an owner of property, for reasons of things it could not have been in which are satisfactory to himself, tended to abolish the distinction refuses to sell himself, or permit his based upon color, or to enforce so- assignors to sell, to certain persons cial, as distinguished from political, who may be distasteful to him as equality, or a commingling of the neighbors. Are there any interests

(218 Mich. 625, 188 N. W. 330.) of the state which will be promoted white, black, or of some other color.' or advanced compelling the creation “The same question was also beof such a condition in the commun- fore the supreme court of Louisiana ity? The law is powerless to eradi- in Queensborough Land Co. v. cate racial instincts or to abolish Cazeaux, 136 La. 724, L.R.A.1916B, distinctions which some citizens do 1201, 67 So. 641, Ann. Cas. 1916D, draw on account of racial differ- 1248, where it was held that a conences in relation to their matter of dition in a deed that the grantee purely private concern. For the should not sell to a negro did not vilaw to attempt to abolish these dis- olate the provisions of the 14th tinctions in the private dealings be- Amendment, and was not against tween individuals would only serve public policy. to accentuate the difficulties which “One of the purposes of the rethe situation presents.

striction in the instant case was ap“The precise issues presented parently to preserve the subdivision have been squarely before the courts as a district unoccupied by negroes. of last resort of several states, and Whether this action on the part of have been decided adversely to the the owner was taken to make the contentions of defendants.

neighborhood more desirable in his “In Los Angeles Invest. Co. V. estimation, or to promote the better Gary, 181 Cal. 680, 9 A.L.R. 115, 186 welfare of himself and his grantees, Pac. 596, the court distinguished be- is a consideration which I do not between a restriction against the sale lieve enters into a decision of the and one against the occupancy of case. So far as I am able to discertain property by persons other cover, there is no policy of the than of the Caucasian race. The state which this action contravenes. former was held invalid, as an un- Were defendants' claim of rights lawful restraint on alienation, while based upon any action taken by the the latter was upheld.

authority of the state, an entirely "In Koehler v. Rowland, 275 Mo. different question would be present573, 9 A.L.R. 107, 205 S. W. 217, ed. the supreme court of Missouri held “Defendant's motion to dismiss that a condition in a deed against the bill of complaint will therefore the transfer, lease, or renting of the be denied. The injunction heretoproperty in question to negroes, was fore issued is, however, broader one which the vendor had a right to than warranted by the provisions of make, and was not void on the the restriction. The restriction covground of public policy. The same ers the occupancy of the property court, in Keltner v. Harris, — Mo.

· by a colored person only. In terms -, 196 S. W. 1, also held that where at least it would not be violated by an owner of real estate made a con- leasing the same to a colored person tract of sale of the same to a white so long as such person did not ocman, and after making the deed dis- cupy it. The temporary injunction covered that it was made to a col- heretofore issued will therefore be ored man, for whom the white man modified to the extent of prohibiting was merely an agent, the convey. defendant from occupying the premance would be voided on the ground ises himself, or from permitting the of fraud, saying: 'If it was dis- same to be occupied by a colored tasteful to plaintiff to have a col- person, and, as so modified, will be ored man as his adjoining neighbor, made permanent. Glenn C. Gilleshe had the legal right to refuse to pie, Circuit Judge." sell to him or his agents the prop- A decree was made in accordance erty in controversy. In other with the opinion. The case is words, no man is bound to sell his brought here for review by appeal. property to a proposed purchaser Counsel urge the same defenses whose presence is unsatisfactory to that were urged in the court below. him as a neighbor, whether he be The following cases are cited by

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counsel for the appellant: Title Counsel say in the brief: Guarantee & T. Co. v. Garrott, 42 “Under the theory of our AmerCal. App. 152, 183 Pac. 470; Buch- ican democracy and citizenship, neanan v. Warley, 245 U. S. 74, 62 L. groes, or any other race or class, ed. 160, L.R.A.1918C, 210, 38 Sup. ought not now be forced to stand Ct. Rep. 16, Ann. Cas. 1918A, 1201; and plead for right, justice, and

, Ferguson v. Gies, 82 Mich. 358, 9 equity which ought to be the com

. L.R.A. 589, 21 Am. St. Rep. 576, mon heritage of all men by virtue 46 N. W. 718; Gandolfo v. Hartman, of their citizenship and domicil supra; Windemere-Grand Improv. within the jurisdiction of the United & Protective Asso. v.

v. American States. If the opinion of the learned State Bank, 205 Mich. 539, 172 N. trial judge is affirmed, it will open W. 29; 18 C. J. pp. 397–399; and a wedge to all kinds of discriminaother authorities. Some of these

Some of these tion, wrongs, and injustice to a vast authorities do not sustain the con- number of American citizens of tention of counsel.

African descent. Slavery was once We quote 18 C. J. 397, as follows: defended by church and statesmen, “While restrictions against the use but who to-day would want to be of property held in fee are not fa- classified as an upholder of such a vored, yet where the intention of vile institution? the parties is clearly manifested in "Such a restriction as the one rethe creation of the restrictions, they ferred to, if upheld, would place the will be enforced in equity. Any use negro and people of other sects and in contravention of the terms and creeds in the same category as objects of such covenants will con- slaughterhouses, livery stables, tanstitute a breach for which relief neries, garages, etc., and brand may be obtained. Covenants re- them as a nuisance, loathsome and straining the use of real property undesirable in neighborhoods. ... afford an instance of that class of “Would the learned trial judge's cases in which equity will charge decision stand the test of time! the conscience of a grantee of land Will there always exist in this counwith an agreement relating to the try conditions whereby judicial deland, although the agreement nei- cision will band 10,000,000 of peother creates an easement nor runs ple, as it affects the negro, 3,000,000 with the land. The jurisdiction is as it affects the Jew, and about not confined to cases in which an ac- 30,000,000 as it affects the foreigntion at law can be maintained, but er, and equally as many as it affects such covenants, although not bind- the Catholic, thus placing all of ing at law, may be enforced in these classes in the list of undesirequity, provided the grantee has ables? taken with notice of the covenants,"

“We think the learned trial judge's -citing many cases in the notes. decision in this case, if affirmed, In Windemere-Grand Improv. &

would in a short period of time take Protective Asso. v. American State

the course of the Dred Scott DeciBank, 205 Mich. 539, 172 N. W. 29,

sion written by Mr. Justice Taney it was held the restrictions would

We think the counsel has entirely not be enforced in equity where

misapprehended the issue involved.

Suppose the situation was reversed. the character of the locality had

and some negro who had a tract of changed.

land platted it and stated in the reIn Ferguson v. Gies, 82 Mich. 358, corded plat that no lot should be oe9 L.R.A. 589, 21 Am. St. Rep. 576,

cupied by a Caucasian, and that the 46 N. W. 718, this court gave effect deeds that were afterwards executto the plain provision of a statute. ed contained a like restriction:

A reference to the other cases will would anyone think that dire results show them easily distinguishable to the white race would follow an from the instant case.

enforcement of the restrictions? In

(218 Mich. 625, 188 N. W. 330.) the instant case the plat of land con- absolved from the provisions of the taining the restriction was of rec- law simply because he is a negro? ord. It was also a part of defend. The question inant's deed. He knew or should have volved is purely a


against occupaknown all about it. He did not have legal one, and we tion of property to buy the land, and he should not think it was rightly boncolored per

sonshave bought it unless willing to ob- solved by the chanserve the restrictions it contained. cellor under the decisions found in

The issue involved in the instant his opinion. case is a simple one, i. e., shall the The decree is affirmed, with costs law applicable to restrictions as to

to the appellees. occupancy contained in deeds to real

Petition for rehearing denied Noestate be enforced, or shall one be vember 2, 1922.


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

or religion. This annotation is supplementary upheld upon the ground that they are to that in 9 A.L.R. 120.

not against public policy and that they The reported case (PARMALEE V. do not violate the 14th Amendment. MORRIS, ante, 1180) and Corrigan v. The Corrigan Case further upholds Buckley (1924) - App. D. C. - 299

, such a covenant against the contenFed. 899, appear to be the only cases tion that it deprives a negro of propin point which have been decided since erty without due process of law. And the previous annotation.

in both of these cases owners of adThe principle involved in the de- joining lots obtained injunctions recision of Los Angeles Invest. Co. v. straining negroes, who had contracted Gary (1919) 181 Cal. 680, 9 A.L.R. 115, to purchase property, from doing so. 186 Pac. 596, that a covenant in a deed In the Corrigan Case, in reply to a prohibiting the occupation of the prop- claim of protection under a certain erty by a person other than a Cau- act of Congress, the nature of which casian is valid, has been followed by is not disclosed, the court remarked both of these new cases in holding that that “this legislation was enacted to such a provision prohibiting the oc- carry into effect the provisions of the cupation of the property by negroes Constitution. The statutes, therefore, is also valid.

can afford no more protection than the And the validity of a covenant or Constitution itself. If, therefore, restriction forbidding the sale of prop- there is no infringement of defenderty to a negro has been upheld in ant's rights under the Constitution, Corrigan v. Buckley (D. C.) supra, as there can be none under the statutes." it was in Queensborough Land Co. v. The act relied upon was undoubtedly Cazeaux (1915) 136 La. 724, L.R.A. of a different sort than the California 1916B, 1201, 67 So. 641, Ann. Cas. statute making conditions restraining 1916D, 1248, and in Koehler v. Row- alienation void when repugnant to the land (1918) 275 Mo. 573, 9 A.L.R. 107, interest created, under which it was 205 S. W. 217, both cited in the anno- held in Los Angeles Invest. Co. v. Gary tation in 9 A.L.R. at pages 120, 121. (Cal.) supra, that a condition forbid

In both the PARMALEE and the Cor- ding a sale to one other than a Caurigan Cases these provisions have been casian would be void. E. W. H.

38 A.L.R.-75.



California Supreme Court (In Banc) - March 4, 1925.

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(- 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.] Statutes, & 45 - effect of invalidity of Fisheries, § 1 public policy with proviso.

respect to. 2. When a proviso in the nature 6. Public policy aims to protect and of an exception to a general statute conserve food fish for the benefit of is invalid, the general provisions of present and future generations of the the statute are not invalidated there people of the state and the devotion by unless it clearly appears that the of such fish to the purposes of huprovisions of the exception are so in- man consumption. timately and inherently related to and [See 11 R. C. L. 1041, 2 R. C. L. connected with the general provisions Supp. 1352.) to which it relates that the legislature Constitutional law, $ 81 – delegation would not have enacted the latter of legislative power effect. without the former.

7. An act permitting a commission [See 6 R. C. L. 121, 2 R. C. L. Supp. to authorize the use of various per33, 4 R. C. L. Supp. 384, 5 R. C. L.

centages of catches of food fish in reSupp. 322.]

duction plants is not invalid as vestFisheries, § 9 discrimination in

ing an unlawful discretion in the compermitting reduction – validity. mission where the percentages to be 3. A proviso to a statute forbidding

allowed are to depend upon findings the use of food fish for reduction pur

of facts after a hearing that there is poses, which permits those engaged in

no market for the fish and that their catching or dealing in fish for human use in the reduction plant will not consumption and those engaged in

tend to impair or deplete that species canning or preserving fish for such

of fish. consumption to apply for a permit to Constitutional law, § 81 – right of use them in a reduction plant, which legislature to delegate power. may be granted upon certain condi- 8. The legislature may confer uptions, is not unreasonable or discrim- on an administrative board or officer inatory.

a large measure of discretion, providEvidence, 8 104 — presumption as to

ed the exercise thereof is governed fairness of statute.

and controlled by rules prescribed

therefor. 4. When a legislative enactment is

[See 6 R C. L. 177; see note in 12 attacked on the ground that it is dis

A.L.R. 1435.] criminatory or unreasonable, all presumptions and intendments are in fa

Fisheries, $ 9 - effect of permitting

fishermen to destroy fish on rights vor of the reasonableness and fair

of reduction plants. ness of the legislative action.

9. A statutory provision permitting Courts, $ 94 — control of legislative market fishermen to divert or destroy discretion.

certain fish which they are unable to 5. The decision of the legislature sell for human consumption does not as to what is a sufficient distinction to give reduction plants the right to use warrant classification will not be them for reduction purposes so as to overthrown by the courts unless it is confer rights on such plants not conpalpably arbitrary.

trolled by a later statute making it [See 6 R. C. L. 384, 2 R. C. L. Supp. unlawful for anyone to receive or use 106, 4 R. C. L. Supp. 410, 5 R. C. L. fish fit for human consumption for reSupp. 340.]

duction purposes.

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