Opinion
No. 19,988.
Decided December 17, 1962. Rehearing denied April 8, 1963.
From a judgment holding Anti-Discrimination Act unconstitutional, the Commission and others brings error.
Reversed.
1. CONSTITUTIONAL LAW — Inalienable Rights — Remedy — Duty of Court. It is the solemn responsibility if the judiciary to fashion a remedy for the violation of a right which is truly inalienable, where no remedy has been provided by legislative enactment.
2. Property Rights — Regulation — Police Power. It is recognized that certain essential attribute of property cannot be unreasonably infringed upon by legislative action; however, such rights are subject to regulation by a proper exercise of the police power of the state.
3. STATUTES — Fair Housing Act — Validity — Police Power. It is held that The Colorado Fair Housing Act (C.R.S. '53, 69-7-1, et seq. Perm. Supp.) having substantial relation to a legitimate object for the exercise of the police power, is appropriate for the promotion of that object.
4. CONSTITUTIONAL LAW — Fair Housing Act — Property Rights — Private Use. A claim that Fair Housing Act authorizes the taking of private property for private use without the consent of the owner, is without validity where owner of real estate involved has announced of his own free will that he desires to dispose of his private property for the private use of a purchaser who meets the terms upon which the real estate is placed on the market.
5. Anti-Discrimination Commission — Orders — Authority. That portion of the Colorado Fair Housing Act purports to empower the commission to order "such other action as in the judgment of the commission will effectuate the purposes of this article" amounts to a delegation of legislative power in violation of Art. V, Sec. 1, of the state constitution; the legislature may not delegate carte blanche authority to an administrative agency to impose sanctions or penalties for violation of the substantive portions of a statute.
6. ADMINISTRATIVE LAW — Anti-Discrimination Commission — Orders in Excess of Authority — Validity. Portions of an order of the Anti-Discrimination commission, in excess of the authority which it could constitutionally enter under the facts disclosed by the record, were void.
Error to the District Court of El Paso County, Hon. David W. Enoch, Judge.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Mr. CLIFTON A. FLOWERS, Assistant, Mr. WENDELL P. SAYERS, Assistant, for plaintiff in error.
Mr. JAMES E. TARTER, Mr. WELDON M. TARTER, for defendants in error.
Mr. ROBERT W. JOHNSON, for Intervenor The Colorado Springs Board of Realtors, Inc.
Mr. EDWARD H. SHERMAN, Mr. EDWIN M. SEARS, Mr. JOHN E. GORSUCH, Mr. JOHN L. FERGUSON, Mr. DWIGHT D. MURPHEY, Messrs. DONALDSON, HOFFMAN GOLDSTEIN, Mr. CHARLES ROSENBAUM, Mr. MANDEL BERENBAUM, Mr. LOUIS G. ISSACSON, Mr. JOSEPH MOSKO, Mr. JAMES RADETSKY, Mr. STANTON ROSENBAUM, Mr. WALTER M. SIMON, of the Colorado Bar, Denver. Mr. CLINTON M. COLE, Mr. ALFRED AVINS, of the Colorado Bar, Colorado Springs. Mr. ARNOLD FOSTER, Mr. PAUL HARTMAN, Mr. SOL RABKIN, Mr. EDWIN J. LUKAS, Mr. THEODORE LESKES, of the New York Bar, Amici Curiae.
THE issues to be determined by this court are raised by the original parties to the proceedings before the Colorado Anti-Discrimination Commission. James R. and Elizabeth O. Rhone, to whom we will refer as the Rhones or complainants, filed a complaint before said commission against J. L. Case and Company in which it was alleged, inter alia:
"1. That Respondent has violated the Colorado Fair Housing Act of 1959 by refusing to sell certain real estate property located at 1609 Kingsley Drive, Colorado Springs, Colorado, to the Complainants because they are Negroes.
"2. That on or about September 10, 1959, Respondent and Complainants agreed upon terms of purchase and sale of said property.
"3. That on or about September 10, 1959, Respondent accepted Complainants' promissory note in the amount of Five Hundred Dollars ($500.00) as down payment to bind the contract of purchase and sale; and that the said promissory note for Five Hundred Dollars ($500.00) was redeemed on or about September 12, 1959, by Complainants' personal check.
"4. That subsequent to the execution of said contract for the purchase and sale of said property Respondent endeavored to persuade Complainants to withdraw their offer to purchase said property.
"5. That on or about September 14, 1959, Respondent told Complainants that said property had been sold to another purchaser."
This complaint was filed September 18, 1959. Twenty-five days thereafter Nelson Merrell and Reuben M. Stovern were made additional respondents by the filing of an amendment to the original complaint. This amendment contained the following allegations:
"1. That Nelson Merrell and Reuben M. Stovern, whose business address is 29 East Platte Avenue, Colorado Springs, Colorado, and who are engaged in the business of selling real estate for the J. L. Case and Company, Realtor, who is named as Respondent in the original part of the complaint, did aid and abet said Respondent in his refusal to sell the property located at 1609 Kingsley Drive, Colorado Springs, Colorado, to Complainants, although said Complainants had made a bonafide offer to purchase said property on terms and at a price specified by Nelson Merrell, because they are Negroes.
"2. That Nelson Merrell endeavored to coerce Complainants to withdraw their offer to purchase the said property at 1609 Kingsley Drive, Colorado Springs, Colorado, by methods of persuasion and coercion.
"3. That Reuben M. Stovern purchased the said property at 1609 Kingsley Drive, Colorado Springs, Colorado, On September 14, 1959, for less money than Complainants had offered for it and at a time when Complainants offer to purchase, together with their check for Five Hundred Dollars ($500.00), was on file in the J. L. Case and Company, Realtor, office.
"4. That at no time prior to the transfer of the property to Reuben M. Stovern did Respondent, or anyone from his office, notify Complainants, nor indicate to them in any manner, that their offer was not acceptable."
The complaint as amended was based on an alleged violation of the Colorado Fair Housing Act of 1959 which provides in pertinent part:
"(1) (a) it shall be an unfair housing practice and unlawful and hereby prohibited:
(b) For any person having the right of ownership, or possession, or the right to transfer, rental, or lease of any housing: To refuse to transfer, rent, or lease, or otherwise to deny to or withhold from any person or persons such housing because of race, creed, color, sex, national origin or ancestry; to discriminate against any person because of race, creed, color, sex, national origin, or ancestry in the terms, conditions, or privileges pertaining to any housing, or the transfer, rental, or lease thereof, or in the furnishing of facilities or services in connection therewith; * * *
* * *
"(f) For any person to aid, abet, incite, compel, or coerce the doing of any act defined in this section as an unfair housing practice; or to obstruct or prevent any person from complying with the provisions of this article or any order issued thereunder or to attempt either directly or indirectly to commit any act defined in this section to be an unfair housing practice."
By C.R.S. '53, 69-7-3 (c) the term "Housing" as used in the Act does not include "Premises maintained by the owner or lessee as the household of his family with or without domestic servants and not more than four boarders or lodgers."
Respondents filed separate answers in which they denied the allegations of the complaint as to acts violative of the statute. It was also asserted by them that the statute upon which the action was based, 69-7-1 to 7, "is in whole or in part contrary to the Constitution of the State of Colorado and contrary to the Constitution of the United States of America."
A hearing was held by the commission at Colorado Springs, March 14, 1960, and thereafter "Findings of Fact, Conclusions of Law, and Order" were entered. The findings of fact were detailed and specific with reference to the conduct of each of the respondents. For purposes of this opinion suffice it to say that the disputed questions of fact were resolved against the respondents and the commission concluded, inter alia:
"10. That the respondent, J. L. Case, discriminated against the complainants because of their race or color in connection with the transfer of the home in question: that such discrimination constituted an unfair housing practice as defined in Section 5 (1) (a) (ii), of said Colorado Fair Housing Act of 1959.
"11. That the respondents. Nelson Merrell and Reuben M. Stovern, aided or abetted the respondent, J. L. Case, in discrimination against the complainants because of their race or color in connection with the transfer of the home in question; that such aiding or abetting constituted an unfair housing practice as defined in Section 5 (1) (e), of said Colorado Fair Housing Act of 1959."
The commission ordered that respondents "cease and desist from committing the aforesaid unfair housing practices." To "further effectuate the purpose" of the statute it was ordered by the commission;
"2. That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtor, from the homes listed with him in his capacity as a licensed real estate broker, shall afford to these complainants the opportunity of purchasing a comparable home as the home in question in the same general neighborhood or a comparable neighborhood in Colorado Springs, Colorado, as the neighborhood in question, and under the same terms and conditions as such a home would be offered to any other person.
"3. That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtor, inform the Coordinator of the Colorado Anti-Discrimination Commission within thirty days from the date of this Order, and at thirty-day intervals thereafter, concerning the manner in which he has complied with this order.
"4. That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtor, inform the Coordinator of the Colorado Anti-Discrimination Commission as soon as possible of the dates on which bona fide offers are made by said respondent to the complainants of comparable homes in the same general neighborhood or a comparable neighborhood in Colorado Springs, Colorado, as that of the home in question."
Pursuant to the statute the matter was brought before the district court of El Paso county by respondents for review of the proceedings before the Commission. Their petition for review challenges the constitutionality of the Fair Housing Act under several sections of the state and federal constitutions, to which we will hereinafter direct our attention.
Before the trial court, and here, some interested persons were permitted to intervene, and others to present briefs as amici curiae, and to appear in oral argument of the issues.
The trial court held that, assuming constitutionality of the Act, there was ample support in the evidence to justify the conclusion of the commission that respondents had violated the Act. However the court disposed of the action on the single constitutional issue embodied in the conclusions of law as follows:
"1. That The Colorado Fair Housing Act of 1959, 1959 Session Laws, Chapter 148, Section 6 (12) is repugnant and contrary to the Constitution of the United States, Article XIV Section 1, and the Constitution of the State of Colorado, Article II, Section 25, as it applies in this cause in that said section is set forth with such indefiniteness and uncertainty so that an intelligent man cannot discover his duty thereunder, and,
"2. That said Section 6 (12), supra, is repugnant and contrary to the same Articles and Sections of said constitutions in that said Section 6 (12), supra, provides for an unlawful delegation of legislative authority, and,
"3. That, as a consequence, the order of defendant, Colorado Anti-discrimination Commission, entered on May 12, 1960, is a nullity and is void and should be dismissed."
C.R.S. "53, 69-7-6, deals with complaints before the commission, the investigation thereof, hearings thereon, and other procedural matters. Subsection (12) specifically relied on by the court provides:
"(12) if, upon all of the evidence at a hearing, the commission shall find that the respondent has engaged in or is engaging in an unfair housing practice as defined in this article, the commission shall state its findings of fact and shall issue and cause to be served upon such respondent an order requiring such respondent to cease and desist from such unfair housing practice and to take such affirmative action, including (but not limited to) the transfer, rental, or lease of housing; the making of reports as to the manner of compliance and such other action as in the judgment of the commission will effectuate the purpose of this article."
Counsel for the respondents, and amici curiae who take the same position, assert that the Act in question violates the following provisions of the Constitution of Colorado:
Article II, Section 14 — in that the private property of respondents is taken for private use without their consent.
Article II, Section 3 — which provides that: "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness."
The argument is that the Act infringes on the inalienable right of respondents to select for themselves the persons with whom they will contract, and authorizes infringement on their inalienable "civil rights in their property."
Article II, Section 25 — in that the Act deprives respondents of an essential attribute of property without due process of law.
Article III, (Separation of powers of government) — in that the Act purports of delegate powers to an administrative agency which can only be exercised by the legislative or judicial branch of the government.
It is also argued that the Act in question violates the Fourteenth Amendments to the Constitution of the United States in that it denies respondents the inalienable right to freedom of contract without due process of law, and in that it denies respondents equal protection of the law by purporting to establish an unreasonable classification in the exclusion from coverage of "premises maintained by the owner or lessee as the household of his family * * * and not more than four boarders or lodgers."
Throughout the briefs which have been filed in support of the foregoing arguments we find heavy reliance on expressions such as "inalienable rights." "fundamental rights." "human right to own property." "essential attribute of property," "freedom of choice," "etc. As a basis for most of the points relied on by respondents for invalidation of the Act it is assumed that the "right to dispose of one's property," to "freely alienate" the same, the "freedom of choice that in the sale of one's property" and "the exercise of choice that is inherent in property rights" are absolute rights and freedoms which cannot be subjected to a legislative enactment which purports to prevent discrimination based on "race, creed, color, sex, national origin or ancestry." It is asserted that the "exercise of choice that is inherent in property rights must be left to the moral order for control rather than in the police power."
We have no hesitancy in stating that there are fundamental and inherent rights with which all humans are endowed even though no specific mention is made of them in either the national or state constitutions. "Truths" held to be self-evident in the language of the Declaration of Independence are that, "* * * all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of happiness * * *." Natural rights — inherent rights and liberties, are not the creatures of constitutional provisions either at the national or state level. The inherent human freedoms with which mankind is endowed are "antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe," In the early case of Gow v. Bingham, 107 N.Y.S. 1011, this principle was recognized. it was there held that all men have rights which have their origin as natural rights independent of any express provision of law, and that constitutional provisions are not the sources of these rights.
The Ninth Amendment to the Constitution of the United States and Articles II, Section 28, of the Constitution of Colorado, make clear that "The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people." A proper construction of this single sentence entitles that provision to far greater consideration in the definition of and the protection afforded to "inherent rights" than has heretofore been recognized. As stated by Patterson in his recently published book, "The Forgotten Ninth Amendment," in this single sentence it is announced that:
"(1) the individual, and not the State, is the source and basis of our compact and sovereignty now resides and has always resided in the individual;
(2) that our Government exists through the surrender by the individual of a portion of his naturally endowed and inherent rights; (3) that everyone of the people of the United States owns a residue of individual rights and liberties which have been, and which are never to be surrendered to the State, but which are still to be recognized, protected and secured; and (4) that individual liberty and rights are inherent, and that such rights are not derived from the Constitution, but belong to the individual by natural endowment."
The Congress of the United States in passing the Enabling Act under which the State of Colorado was created was careful to require that the state constitution shall "make no distinction in civil or political rights on account of race or color, * * *." The constitutions of the state and the nation recognize unenumerated rights of natural endowment. These God-given rights should be protected from infringement or diminution by any person as well as any department of government. It is the solemn responsibility of the judiciary to "fashion a remedy" for the violation of a right which is truly "inalienable" in the event that no remedy has been provided by legislative enactment. An inherent human right will be upheld by this court against action by any person or department of government which would destroy such a right or result in discrimination in the manner in which enjoyment thereof is to be permitted as between persons of different races, creeds or color.
In the instant case the Rhones, who are Negroes, are guaranteed by Article II, Section 3, of the Constitution of Colorado that as a part of their inalienable rights they have the right "of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness." Does this promise carry with it as part of the "unenumerated" inalienable rights the concept that the Negro cannot be discriminated against because of his color in his effort to "acquire, possess and protect" property? This section of the constitution is relied upon by respondents who contend that it cloaks them with a natural or inalienable right to discriminate against the Negro on the basis of his color, and to prevent him from acquiring property in the form of a home, which certainly is an essential if one is to enjoy the rights involved in "seeking and obtaining their safety and happiness." In short, the argument is that the unenumerated "natural right of property" for which respondents contend, can be so exercised by them as to destroy the unenumerated natural right of the Negroes to seek and obtain safety and happiness and to acquire property unfettered by discriminations based on race and color.
We recognize that there are certain "essential attributes of property" which cannot be unreasonably in fringed upon by legislative action. However there are no absolutes in these rights. As was stated by the Supreme Court of the United States in Nebbia v. New York, 291 U.S. 502. 54 S. Ct. 505, 78 L. Ed. 940:
"* * * But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at all will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. * * *"
Thus the constitutionally protected rights in property, for which respondents contended, are subject to regulation by a proper exercise of the police power of the state. If a statute purporting to have been enacted to protect the public health, morals, safety or common welfare, has no real or substantial relation to these objects, and for that reason is a clear invasion of the constitutional freedom of the people to use, enjoy or dispose of their property without unreasonable governmental interference, the courts will declare it void. Chenoweth v. State Board of Medical Examiners, et al., 57 Colo. 74, 141 Pac. 132. It is the duty of the court to examine the act in question and to determine whether it has a substantial relation to the objects which the exercise of the police power is designed to secure, and whether it is appropriate for the promotion of such objects.
We hold that the Act here in question has a substantial relation to a legitimate object for the exercise of the police power, and that it is appropriate for the promotion of that object. We constantly speak of "equality of opportunity" as a foundation stone of the American way of life. We solemnly proclaim that "All men are created equal"; that "all men" have the inalienable right of acquiring, possessing and protecting property. We hold that as an unenumerated inalienable right a man has the right to acquire one of the necessities of life, a home for himself and those dependent upon him, unfettered by discrimination against him on account of his race creed or color. The act of the legislature here in question is fully justified by Article II, Section 28, of the Constitution of Colorado and the Ninth Amendment of the Constitution of the United States.
As stated by Roscoe Pound in the introduction to "The Forgotten Ninth Amendment," supra;
"[It] declares that there are natural rights but makes no attempt to define those not expressly provided for in the Bill of Rights nor to provide for securing them. But the states have the attributes and powers of sovereignty so far as they have not been committed to the federal government by the Constitution. So far as inherent rights are not committed to the federal government, defining and securing them is left to the states or to be taken over by the people off the United States by constitutional amendment. Are not the Ninth and Tenth Amendments authority for state legislation to define and secure inherent reasonable expectations in life in civilized society as it is today and is not the Ninth Amendment a challenge to the states to undertake that work as the conditions of American life today may demand it?" has seen fit to accept the "challenge" referred to by Dean Pound.
When, as at present, the entire world is engulfed in a struggle to determine whether the American concept of freedom with equality of opportunity shall survive; when tyrannical dictators arrayed against this nation in the struggle proclaim throughout the world, with some justification, that we do not practice what we do not practice what we preach. and that "equality of opportunity" is a sham and a pretense, a hollow shell without substance in this nation; we would be blind to stark realities if we should hold that the public safety and the welfare of this nation were not being protected by the Act in question. Indeed, whether the struggle is won or lost might well depend upon the ability of our people to attain the objectives which the Act in question is designed to serve.
We might lengthen this opinion with citations to numerous decisions of courts of last resort throughout the nation, but no good purpose would be served thereby. The recent opinion of the Supreme Court of Massachusetts in Massachusetts Commission Against Discrimination, et al., v. A. J. Colangelo, et al., 344 Mass. 387, 182 N.E.2d 595, contains a collection of numerous cases bearing upon the questions raised in the instant case. The conclusions reached by that court are sound. There is no difference in the substance of the statute under consideration in that case, nor in the facts there under consideration upon which to distinguish that case from the instant action. All the grounds upon which respondents rely to overthrow the statute in the instant case were argued before the Supreme Court of Massachusetts and that court held that the act of the Massachusetts legislature was constitutional. Except as hereinafter noted on the question of the validity of the particular order entered in this case, we reach the same conclusion.
It is argued at great length that the act here in question takes private property for private use without the consent of the owner. A sufficient answer to this contention is to direct attention to the fact that the owner of the real estate involved has announced of his own free will that he wants to dispose of his private property for the private use of a purchaser who meets the terms upon which the real estate is placed on the market. If at any time the owner changes his mind and in good faith withdraws the property from the market altogether, he is at liberty to do so. Under these circumstances his property is not taken from him for private use in violation of the constitutional provision.
We now pass to a consideration of the specific orders entered by the commission in the instant case, and to the single section which the trial court held to be unconstitutional.
As hereinabove set forth in full, C.R.S. '53, 69-7-6 (12) directs that upon finding that a respondent has violated the Act the commission shall issue an order: (1) "requiring such respondent to cease and desist from such unfair housing practice and to take such affirmative action, including (but not limited to) the transfer, rental, or lease of housing; * * *," The Act provides (2) that the commission has authority to order "the making of reports as to the manner of compliance" and (3) to take " such other action as in the judgment of the commission will effectuate the purpose of this article." (Emphasis supplied.)
It is argued that there is no valid authority in the foregoing quotations under which the commission could make the order actually entered in this case, by which respondent J. L. Case "shall afford to these complainants the opportunity of purchasing a comparable home as the home in question in the same general neighborhood or a comparable neighborhood in Colorado Springs, as the neighborhood in question and under the same terms and conditions as such a home would be offered to any person."
We hold that the portion of C.R.S. '53, 69-7-6 (12) which purports to empower the commission to order "such other action as in the judgment of the commission will effectuate the purposes of this article" amounts to a delegation of legislative power contrary to the separation of powers provision of the Constitution of Colorado, and in violation of Article V, Section 1, which provides that; "The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, * * *." In Cooley's Constitutional Limitations (8th ed.) we find: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority." The opinions of this Court in the following cases make clear that the general assembly "may not delegate the power to make a law; but it may delegate power to determine some fact or a state of things upon which the law, as prescribed, depends." Sapero v. State Board of Medical Examiners, 90 Colo. 568, 11 P.2d 555; Prouty v. Heron, 127 Colo. 168, 255 P.2d 755. The legislature cannot delegate to any administrative agency "carte blanche" authority to impose sanctions or penalties for violation of the substantive portion of a statute.
We hold that other portions of the order entered by the commission were in excess of any authority which it could constitutionally enter under the facts disclosed by the record before us, to-wit; All of paragraph "2" of the order which is hereinabove set forth in full; that portion of paragraph "3" of said order requiring that respondent Case inform the commission "at thirty-day intervals thereafter, concerning the manner in which he has complied with this order"; and all of paragraph "4" of said order.
We hold further that the portion of the Act which authorizes the commission to enter an order "requiring such respondent * * * to take such affirmative action, including (but not limited to) the transfer, rental, or lease of housing; * * *" is of necessity limited to the areas specifically mentioned notwithstanding the attempt, by parenthesis, to give an unlimited power to order sanctions and fashion remedies of the commission's own making.
We hold that under the pronouncement of this Court in Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, the illegal Act as a whole. It is not necessary that the Act as a whole be stricken, nor is it necessary to vacate the order of the commission in its entirety. Those portions of the order which are based on an unconstitutional delegation of power, as specifically identified above, are to be stricken, and that which remains should be upheld.
The cause is remanded for the entry of judgment consistent with the views herein expressed.
MR. JUSTICE FRANTZ and MR. JUSTICE PRINGLE specially concur.
MR. JUSTICE HALL dissents.