Jones v. Alfred H. Mayer Company

PETITIONER:Jones
RESPONDENT:Alfred H. Mayer Company
LOCATION:Alfred Realty Company

DOCKET NO.: 645
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 392 US 409 (1968)
ARGUED: Apr 01, 1968 / Apr 02, 1968
DECIDED: Jun 17, 1968

Facts of the case

Jones, a black man, charged that a real estate company in Missouri’s St. Louis County refused to sell him a home in a particular neighborhood on account of his race.

Question

Did the defendant violate 42 U.S.C. Section 1982 which guarantees equal rights to all citizens making real estate transactions?

Earl Warren:

Number 645, Joseph Lee Jones, et al., Petitioner, versus Alfred H. Mayer Company et al.

Mr. Liberman.

Samuel H. Liberman:

Mr. Chief Justice and may it please the Court.

This case arises on a petition for certiorari to the Eighth Circuit Court of Appeals on a judgment which simply affirmed a holding by the United States District Court for the Eastern District of Missouri dismissing the amended complaint in these actions for failure to state the cause of action upon which relief can be granted.

Therefore, the facts which are well pleaded in the First Amendment complaints set out in the appendix are the facts which we are dealing with.

These facts alleged that the respondents, a group of related corporations and one individual or developers of a subdivision known Paddock Woods in St. Louis County, Missouri.

They also are developers of adjacent subdivisions known as Paddock Estates, Paddock Meadows, Paddock Hills, and Wedgwood and perhaps some others.

They received permission from various estate agencies to build these divisions including Paddock Woods.

They layout the streets and the sewers and the recreation facilities and various other facilities and then they plot out certain lots and they sell houses and lots to the public.

The method of selling is by buildings and display houses of different types on the — at the location of the subdivision.

And then the public looks at the display house and the buyer, if he likes one of the houses, will enter into a contract by which the respondents will build a certain house according to the choice of the buyer on a certain lot.

And when it’s completed, the transfer of the property is then made.

It’s further alleged that the estate in the various governmental subdivisions of the estate are involved with the building of the subdivision both in the approval and the assistance which they give to the builder and from the standpoint of the function — community functions which they delegate to the builder with respect to the government of this community.

The facts out of this case in particular arose from Mr. and Mrs. Joseph Jones, the petitioners went out to the subdivision and saw a house which they wanted to buy and attempted buy it, and it is alleged that the respondents refused to deal with them or to sell them a house solely because Mr. Jones is a Negro.

The question presented has led to certain refusal solely because of the raise of the prospective buyer is in violation of the law of the United States.

In our brief, this question took two forms, firstly, whether the conduct is prohibited by Section 1978 of the revised statutes 42 U.S.C., Section 1982.

Secondly, whether regardless of the statute on the particular facts of the case due to the nature of the subdivision, the developer would be barred from discriminating in excluding Negroes even without a statute because of the amount of state action which would be involved in the building of the subdivision.

Also in our brief, we broke down the question concerning the statute into its interpretation and as to whether if interpreted as barring this kind of conduct by developer whether that would be a constitutional — constitutionally valid statute.

Actually, it has been conceded by the respondents that such interpretation would be constitutional and in fact the court below, the Court of Appeals, Judge Blackmun held in his opinion there was a matter of interpretation of the statute rather than a constitutional question.

So, addressing my first — myself first to the statutory question rather than the constitutional question, we think that the statute by its plain terms bars a builder of a private subdivision from excluding persons from buying and living in that subdivision because of their race.

Do you apply the individual house zoning?

Samuel H. Liberman:

Your Honor, that question is not before the Court in this case because —

That’s your view of the statute.

Samuel H. Liberman:

In my view of the statute, it would apply to an individual house owner as well but of course that and we have here a subdivision developer in which bar make it much broader type of exclusion as it’s pointed out in the brief of United States.

The question concerning the interpretation can be looked at from the standpoint of the history and from a standpoint of what the statute says.

The history of the statute is set out at length in the brief filed by the respondents and there’s more of it set out in the petitioner’s brief, in the amicus brief filed by the United States and in the amicus filed by the group of organizations and by the National Committee against Discrimination in Housing.

We think that the history, it shows abundant awareness on the part of the drafters of this law but it would apply to individual action as well as to action only by the state.

The — although there are some mentioned in the debates concerning this law of the problem of state action looked at in the historical standpoint.

I do not think you can interpret it as meaning that would only cover state action.

In other words, the Congress at that time was concerned with state action from the standpoint that they have no doubt under the accepted constitutional doctrine in the McCulloch versus Maryland and Prigg versus Pennsylvania that they can do what they wished with respect to controlling the conduct of individuals in violation of constitutional rights.

Samuel H. Liberman:

They were concerned what would happen when the individuals might have some federal legislation on our position to state legislation either permitting or in some cases requiring discriminatory conduct and for this reason, the debates did at times focused on the question of state action and it was resolved that the state law would have to give way to the federal law.

Nevertheless, there’s very little in the debates, there’s very little even in the quotations of respondent’s brief on pages 16 to 19 from which you can make the negative entrance because they were covering what the states might do, they didn’t intend to cover what individuals might do.

The — excuse me.

Regardless, the — how you that you can’t tell what was in the mind of every member of Congress, the debate was certainly lengthy in the interpretation of the statute as applying to individuals was brought out often enough that we can assume that the Congress was aware of the issue and dealt carefully in the language which it chose to adopt to say what it meant.

Now, this statute, originally the Civil Rights Act of 1866 is set out in full of the appendix of petitioner’s brief, and looking at the language you might know that the first place has entitled an act to protect all persons in United States in these Civil Rights and furnish the means of their vindication.

It’s not entitled an act to prevent the states from discriminating.

It’s a positively worded act in its title and in its language itself which has boiled down in Section 1982, it’s just of all citizens of the United States shall have the same right in every state and territory as is enjoined by white citizens thereof to inherit purchase, lease, sell, hold and convey real and personal property.

It — the language emphasizes not the — what the states may not do and doesn’t even refer to that but rather what the right of an individual citizen who wishes to buy and hold property is.

Furthermore, it goes further not even talking about the right itself but the enjoyment of the right.

So, that it would seem from the language itself that we would have to come to the conclusion that they meant that this was not meant to be nearly some sort of negative restriction on what the states or anyone else might do but was supposed to set forth the enjoyment that the right to which people, particularly Negroes, have the right to enjoy.

The statute in question has not received a great deal of interpretation particularly in this Court.

In fact, the only case that really directly deals with these interpretations of the statute is in the case of United States versus Morris which is a District Court case and an old case but it upholds the interpretation of the statute what we would give to it.

As far as the decisions of this Court, the statute has been referred to collaterally in such cases of Buchanan versus Warley and Oyama versus California but it doesn’t mention any limiting aspect of the statute.

And there are some other decisions notably the dictum in Hurd versus Hodge which would limit perhaps, from which the limitation can be implied.

We feel that this limitation is not — have it by way of dictum comes in conflict with the earlier cases dealing with the statute which don’t see any implication limiting the statute to state action and which do — the fact, the earlier cases with respect to other reconstruction Civil Rights legislation, almost all of them refused to make any such interpretation even though in some cases it might have saved the constitutionality of the law.

Furthermore, to the extent that there is any such implied limitation by Hurd versus Hodge, we think that it will resolve more from a constitutional feeling of the Court at that time that there was some constitutional limitation on the statute rather than what the statute was intended.

And in the holdings of this Court in the Katzenbach versus Morgan and United States versus Price and the Guest case, this limiting constitutional interpretation of the power of Congress under the Fourteenth Amendment, Section 5 has been abandoned.

So that any —

Potter Stewart:

Well, except that this statute was enacted under the aegis of the Thirteenth Amendment, wasn’t it?

Samuel H. Liberman:

Originally it was enacted under the Thirteenth Amendment and reenacted —

Potter Stewart:

Reenacted after the adoption of the Fourteenth Amendment?

Samuel H. Liberman:

That’s right.

Potter Stewart:

And its original passage was under the aegis of the Thirteenth Amendment.

Samuel H. Liberman:

Yes.

I was referring to the force, if any, of the dictum in Hurd versus Hodge which I think was did perhaps imply some limitation due to Fourteenth Amendment construction which I was urging has been abandoned since that time by this Court and in the Guest case and the Price —

Potter Stewart:

Yes, but this for valid legislation under the Thirteenth Amendment?

This case may why we have to worry about the Fourteenth Amendment in any limitations obtained in it.

Samuel H. Liberman:

I don’t — it’s our opinion that we don’t have to whether they were really engaged in a question of statutory interpretation.

Potter Stewart:

And the power of Congress under the Thirteenth Amendment to enact this legislation?

Samuel H. Liberman:

Yes.

Abe Fortas:

I gather that the argument on the other side is that when it was reenacted under the Fourteenth Amendment, then by that process it became operative only where the state action, is that the argument?

Samuel H. Liberman:

I think that that implication may have been made in the opinion of the Court of Appeals and I think that argument will be made by the respondents, I think —

Abe Fortas:

Yes, that’s all I’m saying.

That is the argument, isn’t it on the other side?

Samuel H. Liberman:

Yes, and my answer to it would be that if Congress had intended any such repealer, they certainly would’ve gone about it in a more direct way rather than reenacting the same statute in the same words verbatim.

A further argument is made with respect to the interpretation of the statute and it is argued in the respondent’s brief that there is no appropriate remedy set out for a violation of a statute and I think that this — if you’ll examine Section 3 of a statute it clearly — Section 3 of the statute is originally enacted, it clearly envisions that remedy may be by a civil suit and pursuant to the ordinary remedies and says to the extent that where the law has not provided sufficient remedies, the state common law can furnish the necessary equitable remedies as they do in all cases involving real property.

Potter Stewart:

What’s become of that Section 3 1956 law?

Samuel H. Liberman:

I think it’s — it becomes Section 1988, it’s been rewarded quite a bit but this particular language as to the finding of the remedy under state laws —

Potter Stewart:

Section 1988 —

Samuel H. Liberman:

— 42 United States Code, Section of 1988.

Potter Stewart:

Of Title 42?

Samuel H. Liberman:

42.

Furthermore, there is real no real difficulty in furnishing a remedy and a case like this involving real property and the Courts of Equity have been doing this for a long time and compared to — even the reapportionment case or school segregation case, the remedy is quite simple and much within the judicial remedies and functions which are traditional.

In conclusion with respect to the statute, we feel that the language is as broad as can be imagined and actually the opposite interpretation was least the majority free to exclude the minority from any particular county or portion of the county or state in the United States and with the effect that this did have on — it does have on schools and jobs and voting.

We think that clearly that Congress did not mean that the right to purchase housing or lease housing was to be dependent upon the will of the white majority which at that time after all probably unclosed to 100% of the property.

Turning to the Fourteenth Amendment argument, we argue that on the facts of this case that conceding that we might concede that the statute did not apply and still it would have to be a reversal of the dismissal of the complaint because there are so much state action involved in the building of a subdivision of this type —

Abe Fortas:

On the question of state action, may I ask you whether the record shows whether this land was zoned or a rezoned specifically for the purpose of this development?

Samuel H. Liberman:

I don’t think there’s anything about that in the record.

Abe Fortas:

That is customary I think, usually a tract of land large enough for development of this source has to be initially zoned or has been zoned and then has to be a rezoned to permit this to take place, is that your understanding?

Samuel H. Liberman:

Well, there’s no doubt that it would have to be zoned single family before the developer would consider going in there and building.

Abe Fortas:

So, you would assume that this was zoned specifically for this purpose?

Samuel H. Liberman:

That’s right.

With respect to the state action contention we — we feel that whether you look at it from what the state has done with respect to the subdivision under the Burton versus Wilmington Parking Authority approach, or whether you look at it from the other approach of the powers that are given to the developer in either case, you would have to find that there’s a state and governmental function being exercised which would require the respondents to deal with the property in a nondiscriminatory manner.

In other words, they can’t set this thing up by calling part of it private action when it’s really a public function and avoid the constitutional responsibility.

Was that basically because of the size?

Samuel H. Liberman:

More because of its function Mr. Justice because the fact that number one, from the standpoint of the state does, if they say, “Zone it,” then they operate with the building of roads and the tying in of the old roads.

The statutes, by the way, as set out in the appendix to the brief filed by the United States’ amicus showing how they have to rename the streets to continue whatever existing roads might be going up to the subdivision.

And how they have to get approval as to the various facility, sewers and parks and sidewalks and how they have to satisfy the government that they’ve taken into account, access to existing schools and highways and so forth.

So, that the Government actually, the various departments of the Government have a great deal to say as to have a subdivision built.

Would you make that argument with respect to, perhaps if you built a private house?

Samuel H. Liberman:

Not to the same extent, I don’t —

That’s why I ask you this question of zoning.

Samuel H. Liberman:

Yes.

Well, I think with the private house you wouldn’t have questions of roads and sewers and parks and that sort of question involved nor would you have provisions in the laws requiring the builder to show how he’s — what measures he’s taken to keep up the character of the neighborhood.

And encouraging to file a deed of restrictions, which was set forth of course all the really the things equivalent to zonings such as what kind of fences people can have.

And — in other words, in this case, we feel that that power which by ordinarily been a law has been delegated to the builders and they can — within the deed of restrictions which runs with the property and all the property in the subdivision, they have the right to enforce it by making assessments.

And enforcing these assessments on the property owners, if they buy there and they become in effect a governmental authority by virtue of their power under the deed of restrictions governing the subdivision.

Thurgood Marshall:

How large?

How many families are there?

I read some part of it, it’s sort of a thousand people.

Samuel H. Liberman:

Yes.

Thurgood Marshall:

I would like to know how many units are there.

Samuel H. Liberman:

That would be approximately 250 units as it was alleged in the complaint perhaps Mr. Treiman can answer —

Thurgood Marshall:

Covering —

Samuel H. Liberman:

— more accurately on how it’s worked out.

Thurgood Marshall:

Covering how much territory?

Samuel H. Liberman:

I’m not aware of the exact dimensions of a —

Thurgood Marshall:

Well, is that important?

Samuel H. Liberman:

Well —

Thurgood Marshall:

Or — or do you or do you not rely on Marsh against Alabama.

Samuel H. Liberman:

We do rely in Marsh versus Alabama —

Thurgood Marshall:

Well then, what’s the size of it?

Samuel H. Liberman:

Well, Your Honor —

Thurgood Marshall:

Do you know it?

Samuel H. Liberman:

As I say, the size is not set forth in the exact dimension but we feel that the — more important than the size is the power and the function of this — of the developers in this case.

In other words, I don’t think Marsh versus Alabama would be limited as to whether those are a small town or a big town or a medium town, it’s a question as to whether they are exercising in this function.

Thurgood Marshall:

Does it have to be a town?

Samuel H. Liberman:

Well, not necessarily, but — I mean we say this is the equivalent of a town and of course if there was one person, then it wouldn’t be the equivalent of the town but we think that the function is more important than actually the size of a number of lots.

It’s also set forth in the appendix that with the adjoining subdivisions that it will be a community involving at least 10,000 families I believe also.

Potter Stewart:

Are — are there any commercial or industrial areas in this development?

Samuel H. Liberman:

Well, not within the development, no.

Potter Stewart:

So, to that extent, it isn’t a self-contained economic unit?

It’s not a “town” in the sense that there was a town in Marsh against Alabama, is that correct?

Samuel H. Liberman:

Well, I would say it’s not the town in the sense of Marsh versus Alabama but in the sense of the 110 municipalities in Saint Louis County, you know, it’s as much a town as many of them.

Potter Stewart:

Most of them are bedroom communities, I suppose.

Samuel H. Liberman:

Right.

Potter Stewart:

This is — and then the streets I suppose that this developer had to dedicate a certain amount of this property for street purposes?

Samuel H. Liberman:

That’s — as I understand in the —

Potter Stewart:

But then, the streets would become public streets and public sidewalks owned by the — owned not by this developer but by the —

Samuel H. Liberman:

I believe the streets become public streets, the sidewalks I’m not sure about.

Potter Stewart:

Then I suppose there would be assessments on the contiguous owners?

Samuel H. Liberman:

Right, for the —

Potter Stewart:

— that’s a standard way of developing.

Samuel H. Liberman:

Yes, and there are public recreation areas involved.

Potter Stewart:

There’s a golf course I guess, and there is —

Samuel H. Liberman:

There’s a golf course and bathe and tennis club, but in addition, I think there’s open recreation space.

Potter Stewart:

But no industrial or commercial area, is that correct?

Samuel H. Liberman:

No, not within the kind of course.

Abe Fortas:

I seem to recall reading that it is stipulated that there was no federal or estate mortgage money here or guarantees.

Samuel H. Liberman:

There — no — yes, in other words, the builder has not received a commitment for an FHA or federally insured loan in the subdivision.

I — it’s probably irrelevant.

I assume that there are certain buyers who have gone in and bought these lots of who’ve got an FHA loan, but there is no commitment made to the builder or to the respondents to give such loans for Paddock.

Abe Fortas:

Then he — there such point that there would be a federal lending function here but it would operate at the level of the buyers.

Samuel H. Liberman:

Yes, possibly and as I said, there’s really no record on that and —

Abe Fortas:

Yes, that would be extraordinary if that were not so, these days?

Samuel H. Liberman:

Yes.

Earl Warren:

Were there any covenants on behalf of the buyers not to sell to Negroes?

Samuel H. Liberman:

Not in this record Your Honor, no and I don’t believe there are such.

Earl Warren:

Did you say there were recreational centers, there have park out of this area?

Samuel H. Liberman:

I think a park — open land in the nature of playground and park which of course has to be maintained by the subdivision by assessment or —

Earl Warren:

Not by the — not by the community?

Samuel H. Liberman:

No, by the subdivisions.

It’s alleged that way.

William J. Brennan, Jr.:

Did I hear — did you just say there was no federal money?

There are some stipulation that no federal money went?

Samuel H. Liberman:

I think the —

William J. Brennan, Jr.:

What I’m looking at is allegation aid at page 9 (a), Paddock Woods is a part of a community provided that leased in part by loans insured by the credit of federal government?

Samuel H. Liberman:

That’s right.

There some of these others subdivisions —

William J. Brennan, Jr.:

Not the one that we’re directly concerned?

Samuel H. Liberman:

No.

Well, no.

As I have alleged that the respondents have other subdivisions in a contiguous area there.

It where — in other words, this subdivision is Paddock Woods, but there’s also Wedgwood and Paddock Hills and Paddock Estates and some of these older subdivisions did have FHA insurance commitments.

Byron R. White:

Well, that isn’t — that isn’t for the developer though?

Samuel H. Liberman:

Yes, that’s to the developer.

If you got a commitment from the FHA that’s made to the developer that they wasn’t —

Byron R. White:

but it wasn’t — that wasn’t in this case?

Samuel H. Liberman:

Not in Paddock Woods, I’ll reserve the rest of my time.

Earl Warren:

Mr. Attorney General?

Mr. Chief Justice, may it please the Court.

The United States has asked for this opportunity appears friend of the court because of its very great concern that the rights here involved be fully secured and fulfilled for all of our people.

The questions presented are whether the Fourteenth Amendment or Section 1978 of the revised statutes prohibit a developer of a large suburban community from refusing to sell homes within that community to Negroes solely on account of their race.

Our concern with these issues arises from the fact that it is the experience of this decade that of all discriminations, the most harmful in and of itself and in its reinforcement of other discriminations is the discrimination that has caused segregation in our living which is primarily discrimination in the sale of housing.

Segregate living makes it seems almost impossible in fulfillment of rights secured by the Constitution such as schooling, where in the first five years of this decade, we have witnessed in major metropolitan school districts a vast increase in percentage of Negro students.

As an illustration, Chicago has risen from 40% to 52% Negro in the public schools.

In Baltimore, the figure has risen from 50% to 61%.

In Saint Louis, the principal city in the area from which this case comes, Negro school population in public schools had risen from 49% to 60%.

These arise in large measure because of segregation in housing.

It’s not just in schooling, it’s in communications, people in these isolated and alienated areas can hardly be communicated with by itenerants or others.

It must be reached our people who lived among them.

Same as true to the employment, for vital government services of recreation and of health.

The present very substantial and growing urban segregation is caused and maintained in major part by discrimination in sales of housing.

Between 1950 and 1960, nonwhite families in unsound urban housing increased 25% from 1.4 million to 1.8 million.

In this same decade, nonwhite families and overcrowded urban housing increased 40% from 700,000 to a million families.

Among those families earning $10,000 or more a year, 15% of the nonwhite families live in substandard housing compared to 3.7% for white families of comparable income.

In 1960, 46% of our nonwhite urban population lived in unsound housing compared to 14% for the whites.

I would like to devote my argument primarily to the constitutional issue that in anyway indicating that the United States does not have full confidence that the conduct here involved was prohibited as well by Section 1978 for Title 42.

The history of the Fourteenth Amendment clearly reveals that a basic purpose of that Amendment was securing full rights to own, use and dispose of property.

The first Section of the Civil Rights Act of 19 — of 1866 was this statute that we’re dealing with today.

Contemporaneous with its enactment by the same session of the same Congress, the Congress sent the Fourteenth Amendment to the people for ratification.

It was concerned at that time that the property rights sought to be secured by the statute enacted that year to be preserved also by constitutional right.

This, have been recognized in the early Slaughter-House Cases as well in Shay — in Shelley v. Kraemer.

The rights of the property were looked upon is precondition to nearly all other rights into their exercise and perhaps the most fundamental of our rights.

The Fourteenth Amendment by its own force condemns this discrimination because of the involvement of the states in its effectuation.

As early as 1917 in Buchanan v. Warley, the Supreme Court stuck — or struck a statute, the City of Louisville an ordinance, which restricted the sale of property within a city block to a member of the black race or the white race if his race was not a majority within that block.

This was before a separate and equal doctrine was disapproved in such areas of schooling in transportation.

But here, the potential for fencing out is much greater than the statute or that ordinance struck in the Buchanan case which reached only a city block.

Here, the potential is to hundred of thousands of single family dwellings built within major subdivisions in the United States each year.

A major part of our new housing market setting at the very beginning, a pattern of discrimination that can be assume and will persist for many years.

The fact of the conduct of respondents here is just fully contrary to the public interest, that was the affect of the ordinance of the City of Louisville, restricted in Buchanan case.

And it is as much the state acting as was the act of the city there.

In Shelley v. Kraemer in 1948, this Court held that the state cannot enforce private agreements to restrict the sale of property.

There, only a handful of properties need be involved.

I believe in the record in that case there were 21 separate property ownerships placed under the restrictive covenant that was stricken down.

Here, again the fencing out of the Negro is much greater and the action of the state in supporting and enabling and giving the opportunity to the developer to bring this about ever been that great is the involvement of the Court in Shelley v. Kraemer or it was sought to enforce a restrictive covenant.

Is there any evidence in this record that this private development had been promoted by the state to relieve itself of limitations without the issue of the state or community?

For that purpose of causing discrimination, then it could not set itself.

I’m not aware of any such evidence or implication in the record to that effect Mr. Justice.

In Evans v. Newton in 1966, this Court held that services rendered by a private board of trustees and providing a park service pursuant to the will of Senator Bacon of Georgia, in Macon, Georgia where municipal in nature and that this mere park service was so impregnated with government activity that state action was involved in discrimination in the use of the park was prohibited by the Equal Protection Clause of the Fourteenth Amendment.

Here, in Paddock Woods, their parks, tennis courts, bathing facilities, all of which will be subject to the restriction against race that is created for this entire suburban community.

In Burton v. Wilmington Parking Authority in 1961, the Court in viewing all of the circumstances of the financing and construction of a parking lot in Wilmington and the provision thereof — by lease from an estate of a private restaurant, held that the state was involved in the discrimination.

Even though the restaurant there under those circumstances was operated and maintained by private company and in perhaps the most important and closely relevant case, in Marsh v. Alabama in 1946, the Supreme Court held that a company town, which was owned by Gulf Shipbuilding Corporation, built presumably for furthering the purposes of that corporation in building ships, could not limit the exercise of constitutional rights within that town merely because of the combination of property interest that it there owned.

Far less extensive, in our present environment is the company town compared to the subdivision developments with which we’re here confronted which make up perhaps most of new suburbia which surrounds our central city ghettos where so many of our minorities are confined and unable regardless of their economic ability to break loose.

The pattern of segregation created in these subdivisions will have exactly the same effect that it would have if they were created by act of a legislature or by act of a city council.

In regardless of the ownership of the property involved, the public interest must be identical.

Here, Paddock Woods is legally indistinguishable from the company of town in Chickasaw, Alabama.

It has to go to government, the county government of Saint Louis, the state government of Missouri for all of its powers.

It could not provide what it provides for the people without the approval, without the responsibility of state government in doing so.

It must provide to the people their streets, sidewalks, water, sewage, park facilities as indicated.

It has the power under municipal ordinance of the County of Saint Louis to provide the zoning restrictions through deeds of record.

And the nature of these restrictions by usage, and as can be seen from the ordinance itself, go even to noxious conduct of the people resident in the area.

William J. Brennan, Jr.:

Well, Mr. Attorney General, what’s the authority that you impose — the assessments for what purpose?

The — the authority for — no, the authority for this is to provide the opportunity for the people within this area to the — let me put this way the —

William J. Brennan, Jr.:

Well, what I have — this particular reference too is we’re told in the brief of the petitioners, the Board of Trustees appointed by the developers as the power to levy assessments against the residents, the communitywide services and maintenance of community facilities and areas and to enforce them through liens in court proceedings.

Yes, that’s correct and that’s for necessary improvements —

William J. Brennan, Jr.:

What’s — for what?

That’s for necessary improvements or work done for the community.

William J. Brennan, Jr.:

With that the — the owner of this corporate area may what?

Pave a street and impose assessments against the —

Paddock Woods can repair the streets, they can beautify park, they can put in trees along the streets, they can lay new sidewalks out and they can assess the property owners to pay for the cost of it.

Byron R. White:

And this is a continuing operation in the sense that the Board of Trustees survived the sale of all the houses in the subdivision.

And that’s —

Byron R. White:

— an ongoing entity, isn’t it right?

That’s correct, Mr. Justice White.

The purpose here goes beyond the mere creation of the community.

It goes on to the continuing service.

The basic powers of zoning that I — that I described are set out in page 82 of the government’s brief where the municipal ordinance 1005.130 is set forth.

And it provides —

William J. Brennan, Jr.:

I’m sorry, I didn’t catch that page.

It begins on page 82 and goes onto page 83.

William J. Brennan, Jr.:

Yes, I do.

It provides the powers of subdivision, allowed to subdivide — or divider — free in the arrangement of streets and lots, at the same time protect the convenience, health, welfare and safety of the probable feature residents of the subdivisions as well as the character of the surrounding property and the general welfare of the entire area.

And the practices under that are set out back in about page 17 of our brief which includes the placement of temporary structures on property, the prevention of using property for commercial purposes, and the control of obnoxious personal activities of individuals.

Earl Warren:

Is that the power that they give to the Board of Trustees selected by the developers for the purpose of reliving the state or the community of the responsibility for keeping the streets, and repair, and so forth?

It’s for that purpose Mr. Chief Justice as well as for — this is a non-incorporated area.

It’s for purposes of saying that the other — properties are not damaged by the use to which this property is put.

Paddock Woods qualifies as a city of the fourth class under the laws of the State of Missouri and it could, if it chose, to be a city of the fourth class under those laws and engaged in the same activities as a city of the fourth class rather than as a private corporation.

William J. Brennan, Jr.:

Well, I notice that page 17 of your brief, Mr. Attorney General on the footnote, you call the Saint Louis County Ordinance, is this what you have reference to?

Where the subdivision contain sewers, sewage treatment plants, water supply systems, park areas, street areas or other physical facilities necessary or desirable for the welfare of the area or that of common use or benefit which are not — which are not or cannot be satisfactory maintained by any existing public agency, provision shall be made by trust agreements and so forth, is that it?

Yes, sir, that’s it.

The preceding part is —

William J. Brennan, Jr.:

Provides decree —

The other end point here too.

William J. Brennan, Jr.:

Yes.

This section is the same section that I refer to in page 82 and 83 of the appendix to this brief.

The Court held in Marsh v. Alabama that a Jehovah’s Witness could not be prohibited because of the Equal Protection Clause for the Fourteenth Amendment from going into a company town that was concededly private property from going on the sidewalks there and endeavoring to communicate with the people who live there.

And if — and the Court held that the mere fact that this was private property that this is a company of town or rather than ordinary city could not deprive the inhabitants there of their constitutional rights to this sort of communications or the rights of people who did not live there to come there and so communicate.

It would seem ironic indeed if this communication could not be prohibited, this casual itenerant communication, but that the very right, the fundamental right to live there, to buy there, to own property there could be prohibited as to the whole area fencing out an entire race.

This would seem to me that if its government action within the limits of the property of the company town in Chickasaw, Alabama, for purposes of Jehovah’s Witnesses coming on the sidewalks that are private property, then it must be government action also for that corporation and the disposition of its property when it endeavors to restrict its sales to people of the white race.

The activities of the city in Marsh v. Alabama are not essentially different from the activities of this suburban community.

Here, fire protection has to be provided.

Here streets and all the utilities had to be laid out.

Here, the purpose was to dispose a property but they have an ongoing entity for its regulation, for its use, and for its enjoyment and that by definition almost, must be government action.

We would urge to the Court to hold that when a subdivision in a community involving these many people, alleged to be a thousand people in Paddock Woods alone, in a total development of 2,700 families endeavors to screen out, to fence out all Negroes that it is denying equal protection of the laws in a fundamentally governmental activity violating constitutional rights of the person so-discriminated against.

The statute itself, Section 1978 is in the broadest of language.

It is clearly language that is supportable by Section 5 of the Fourteenth Amendment.

The language designed to prevent the discrimination against Negroes, and the sale and the use and the disposition of property, and if they can be screened out from the whole area here, a whole community involving hundreds of families, then clearly they are denied the rights the statute was designed to protect.

The fact that the statute played partially dormant for many years, it cannot be held to diminish its force today any more than Sections 241 and 242, enacted shortly after this were diminished.

When it first came before the Court in U.S. v. Classic after 75 years of virtual dormancy, the statute is vital and it’s important.

There is before the Congress, as the Court knows, legislation that would provide open housing rights on a complicated statutory scheme including administrative judicial and other sanctions for its effectuation.

William J. Brennan, Jr.:

Is its reach as broad as 1982?

Its potential for effectiveness is probably much greater than 1978 because of the sanctions and the remedies that it provides.

It approaches the securing of these rights on a graduated basis.

In its ultimate reach, it has three exceptions; single-family dwellings and Mrs. Murphy situation where there is a unit with more than four different families living within it and religious club uses.

William J. Brennan, Jr.:

Which exceptions are not in 1978 (Voice Overlap) —

Which exceptions that are not in 1978, but it would depend on how you interpreted 1978.

William J. Brennan, Jr.:

Mr. Attorney General, if that statute becomes law, would it be available to these petitioners?

It would be if — it would depend upon the form.

The — the bill that passed the Senate would provide some relief for these petitioners if it became law as of December 31, 1968.

It would not seem that it would provide anything like all of the relief that they are entitled to.

They first sought a home beginning in February 1965, a first endeavor to buy a particular home in Paddock Woods in June of 1965.

It is most probable that property values have increased substantially there and perhaps the people here from Saint Louis can tell you more about that.

There has been a loss of time and there have been other damages arising to the petitioner here that cannot be fully atoned for by any new federal legislation.

Byron R. White:

Do you say revised statutes 1978 was a — is sustainable under Section 5 of Fourteenth Amendment, and I take if the statute — or the bill before the Congress is pursuant to the same authority?

The —

Byron R. White:

Or at least —

It’s a —

Byron R. White:

— that’s one of the basis?

That’s one of the basis also, the Commerce Clause and —

Byron R. White:

Now —

— our testimony, we put it on both —

Byron R. White:

If that statute passes, what will be the relationship between that statute in R.S. 1978?

Will 1978 be thereby amended in effect?

No, I would assume that 1978 would stand independently, I would assume as practical matter, the executive branch would move to enforce the new statute, the Department of Housing and Urban Development has substantial powers there even though they’re maybe primarily in the area of conciliation.

Byron R. White:

And so, its 1978, would it — would reach single-family situations and the other statute would — with its administrative remedies would reach all except — the exceptions?

We don’t know whether 1978 would reach the single family dwelling or not.

The Court doesn’t have to hold that here and a court has not at this time held that.

Byron R. White:

Well, if you put a straight line, if you press these decisions strictly on the statute, what would you say then?

I’d say it depend upon the interpretation that the Court placed on the statute.

Although, the language is very broad, it does not necessarily have to be construed as reaching — the concern is not before this Court, whether it would reach the single-family sale.

As a matter of proof —

Byron R. White:

How would you —

— those cases are very difficult too because there are many reasons that you can engage in a single sale that do not necessarily relate — in relation with race, it would exclude race.

Byron R. White:

How would exclude the single-family situation if you rested this decision, if the decision was in the petitioner’s favor and it rested solely on 1978?

Well, it would be up to the next case to determine whether the Court in this case held.

Byron R. White:

Now, what would be the theory for excluding single family —

The theories could be several and it would just whether 1978 involves substantial discriminations, whether are single transaction among private parties —

William J. Brennan, Jr.:

Certainly, this must be true when those words were put together in 1866, many properties except single-family housing.

That’s —

William J. Brennan, Jr.:

On — on the face of the statute, wouldn’t it be rather hard to if this decision would turn only on the statute?

Would it be difficult to exclude single-family houses?

I think the best reading of the statute would to be to include single-family housing.

It might not necessarily cover isolated sales however.

It would be very difficult to apply to isolated sales to show intent among other things.

Thank you, Mr. Chief Justice.

Earl Warren:

Thank you, Mr. Attorney General.

Mr. Treiman.

Israel Treiman:

Mr. Chief Justice, may it please the Court.

I have a — so we’ve got seven minutes left.

I don’t know just where to begin with.

The Court has already touched through its questioning on what I believe are some of the most sensitive areas in this entire case especially the questions directed by Mr. Justice White at the very end which I think clearly indicate the profound complications and the very troublesome problems and difficulties that will arise inevitably if this Court should construe Section 1982 as the petitioners and the government and the amici wanted to.

I, speaking of the amici, may it please the Court in the few minutes that I have left, I should like to make few general observations as Your Honors have probably observed.

There are great many amici briefs that have been filed in this case in support of the petitioners and I must confess that when these briefs started coming to my office I was not a little shaken.

And it wasn’t — it wasn’t because — I was disturbed over the fact that with all these many organizations and fine lawyers on one side, I was being left in a somewhat friendless position in this courtroom.

I’ve become sort of accustomed to that back home where even some of my good friends were beginning to look upon me as if I had suddenly become afflicted with leprosy.

What disturbed me, may it please the Court, what gave me real concern was how I was suppose to deal with all of these good briefs and they are excellent briefs especially the two that have been mentioned here.

The — I’m talking now but the amici briefs, one by the government and the other by group of national organizations headed by one that calls itself the National Committee against Discrimination in Housing, which I shall refer to as I have in my brief as the NCADH brief.

And speaking of that brief, may it please the Court, with reference to the statements made by the honorable Attorney General, in regard to the effect that segregation, racial segregation has had upon the life of our country, I want to say here and now, personally I bow to nobody when it comes to concern over the plight of the disadvantaged Negro family.

And may I have this, I have read many articles and books on this subject, but as I told the person who I believe was the principal writer of the NCADH brief, I have now seen anywhere a more powerful, a more eloquent description of the terrible — the terrible condition in plight in which not only the children but the adults of the Negro families find themselves by reason of their difficulty in obtaining decent housing.

Israel Treiman:

So that as to that part of the Attorney General’s argument, as far as that part is concern, I assure the Court that I do not quarrel either with the Attorney General or with any of these good friends of the Court who come into this case.

What disturbs me, Your Honors, is the way in which they think this problem should be solved.

And I must say, since I will have only a minute, as I came into the courtroom this morning for the first time, I saw the words that are inscribed over the portals of this courthouse “equal justice under law.”

I must confess my ignorance, I did not know those words were there.

And it struck me that this perhaps goes to the very heart of this case surely nobody would deny equal justice under the Equal Protection Clause of the Fourteenth Amendment or under Section 1982.

But the other two words are just as important, it seems to me.

It must be under law.

I happen to be a practicing lawyer back home and not a lawyer who assure you, Your Honors, professors to have any great knowledge about constitutional law.

I happen to be what people referred to as the bread and butter type of practicing lawyer.

And while I have that deep sympathy for the conditions that have been described caused by the acute problems of housing, I am also a practicing lawyer.

I have an equal reverence for the orderliness of the law.

And I believe Your Honors that if we are to meet this problem, let us meet it in a way that it’s provided for under our Constitution and under our philosophy of the meaning of law.

It’s 2:30 and if I may I should like to close and reserve my time unless the Court wishes to ask me questions.

Earl Warren:

We’ll recess now.

Israel Treiman:

Thank you.