Opinion
No. 40211.
June 14, 1948.
CONSTITUTIONAL LAW: Covenants: Restrictions Against Negroes Unenforceable. Under the ruling of the Supreme Court of the United States restrictions against the sale of real estate to negroes may not be enforced in the Missouri courts.
Appeal from Circuit Court of City of St. Louis. — Hon. Eugene Sartorius, Judge.
AFFIRMED.
G.L. Seegers for appellants.
David M. Grant and Geo. L. Vaughn for respondents.
(1) The provisions of the Federal Constitution, its laws and treaties, which relate to any matter of policy, together with the decisions of the Supreme and other Federal courts construing said provisions, declare the public policy of the United States upon any matter covered therein, and the state courts are without power to overrule or disobey the same. Sola Electric Co. v. Jefferson, 317 U.S. 173; Anderson v. Carkins, 135 U.S. 483; De Pass v. Harris Wool Co., 144 S.W.2d 146. (2) Sections 41 and 42 of Title 8 of the United States Code, which were adopted as Section 1 of the Civil Rights Act by Congress in 1866, declare fundamental rights of citizens of the United States who are residents in Missouri in regard to the making and enforcing of contracts, the inheriting, purchasing, leasing, occupying and conveying real property, and entitled the respondents to the full and equal benefit of all laws and proceedings for the security of persons and property, and the agreement which forms the basis of appellants' action in this case is contrary to and violative of both of said sections, in that said agreement has for its purpose the interference with the rights, privileges and immunities guaranteed and protected by the provisions of the aforesaid statutes to the respondents and is intended to deprive respondents of their rights declared and protected thereby. Secs. 41 and 42 of Title 8 of United States Code, Civil Rights Cases, 109 U.S. 3, 22; Buchanan v. Warley, 245 U.S. 60; Harmon v. Tyler, 273 U.S. 668; City of Richmond v. Dean, 281 U.S. 704; United States v. Morris, 125 F. 322, dealing with the right to lease and occupy lands, and cited with approval in Screws v. United States, 325 U.S. 91. (3) The restrictive covenant pleaded by appellants as the basis for their right to injunctive relief is contrary to the provisions of Sections 41 and 42 of the United States Code, supra, and to the spirit of the same and the meaning, as interpreted by the decisions of the United States Supreme Court and the Federal Courts of lesser jurisdiction. See authorities cited, supra, under (2); Gandolfo v. Hartman, 49 F. 181. (4) An agreement which is contrary to the provisions of valid laws, or the spirit of such laws is void and unenforceable. Sprague v. Rooney, 104 Mo. 349; Hagerty v. St. Louis Mfg. Storage Co., 142 Mo. 238, 44 S.W. 1114; Lehigh Valley R. Co. v. United Lead Co., 133 A. 290 (and cases cited on the invalidity of contracts violative of valid laws of the United States); Dettloff v. Hammond, Standish Co., 195 Mich. 117; 17 C.J.S., sec. 191, p. 545 id., sec. 201, p. 555 et seq. (5) The judicial enforcement of the agreement involved in this action by court process constitutes "state action", by the State of Missouri, contrary to, and forbidden by, Section 1 of the Fourteenth Amendment to the Federal Constitution. Const. of the United States, Amendment 14, Sec. 1; Ex parte Virginia, 100 U.S. 339; Mo. ex rel. Gaines v. Canada, 305 U.S. 337; Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673; Raymond v. Chicago Traction Co., 207 U.S. 20; Twining v. New Jersey, 211 U.S. 78. (6) The upholding and enforcement of said agreement by the courts of Missouri constitutes depriving the respondents of their property, and property rights, contrary to the due-process clause of the Fourteenth Amendment, and denies to the respondents the equal protection of the law contrary to Section 1 of said Amendment; also contrary to Sections 2 and 10 of Article 1 of the Constitution of Missouri.
Action to divest title to real property and to enjoin the breach of an agreement between real-property owners, restricting the sale and occupancy of their property. The trial court found for defendants, and dismissed plaintiffs' petition. Plaintiffs have appealed.
April 24, 1939, plaintiffs, tenants by the entirety of a residence property in City Block No. 4446E of the City of St. Louis, entered into a written agreement with other owners of property in the Block whereby the subscribing parties created and attached to their parcels of land in the agreement described certain restrictions upon the use, occupancy, enjoyment, sale, alienation (voluntary or by operation of law), encumbrance and descent of the lands or any part thereof or any interest therein; it was agreed that none of them would at any time within a period of twenty years from the date of the agreement "sell, convey, lease or rent to a negro or negroes, or deliver possession to or permit to be occupied by a negro or negroes (no matter how the right to occupancy or title shall be attempted to be acquired)" any of the parcels of land belonging to the subscribing parties. It was stipulated that the restrictions should attach to and run with each of the parcels of land.
Defendants, Jacob and Rosalie Clarke, Negroes, have been granted and occupy a described parcel of land in the Block 4446E, having purchased the lot from their grantor who, through mesne conveyances, had acquired the property from the former owner who was a signatory to the restrictive agreement.
In the trial court defendants contended the restrictive agreement was in violation of Section One of the Fourteenth Amendment to the Constitution of the United States. And the defendants further contended they had not had notice, actual or constructive, of the agreement. The written instrument evidencing the agreement had not been recorded, and there was a conflict in the verbal evidence on the issue of actual notice. The trial court found neither of defendants, Jacob nor Rosalie Clarke, "had any personal knowledge of the existence of said written instrument, or of its provisions relating to said restrictions against the sale or leasing to or occupancy of said real property by members of the Negro race either at or before the time when they purchased the same, nor at the time when they took possession of and occupied said property as their place of residence."
Agreements or covenants restricting real property from sale to or occupancy by Negroes have been consistently held valid and enforced by the courts of this state if, in the circumstances, the general purpose of the agreements would be achieved. Such restrictive agreements have been considered in harmony with our State's public policy. Kraemer v. Shelley, 355 Mo. 814, 198 S.W.2d 679; Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d 780; Porter v. Pryor, [412] Mo. Sup., 164 S.W.2d 353; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; Thornhill v. Herdt, Mo. App., 130 S.W.2d 175; Porter v. Johnson, 232 Mo. App. 1150, 115 S.W.2d 529; 12 M.L.R., pp. 221-3, and p. 413. See also Pickel v. McCawley, 329 Mo. 166, 44 S.W.2d 857; and Vol. IV, Restatement of the Law of Property, Comments l. and m., sec. 406, pp. 2411-2412.
However, the Supreme Court of the United States granted the writ of certiorari to this Court in the case of Kraemer v. Shelley, supra; and when the instant case was argued and submitted upon appeal to the Supreme Court of Missouri, it was announced by the Presiding Judge that our decision should await and abide the opinion of the Supreme Court of the United States in the Kraemer-Shelley case.
May 3, 1948, the Supreme Court of the United States delivered its opinion. Shelley v. Kraemer and McGhee v. Sipes, cases Nos. 72 and 87, ___ U.S. ___, 68 S.Ct. 836. In the opinion the Supreme Court of the United States recognizes restrictive agreements or covenants (having the purpose of exclusion of persons of designated race or color from the ownership or occupancy of real property) standing alone cannot be regarded as violations of any rights guaranteed by the Fourteenth Amendment. So long as the purposes of these agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no state action, and the provisions of the Fourteenth Amendment have not been violated. The judicial enforcement of such racial discriminatory restrictive agreements, however, is state action denying the equal protection of the laws guaranteed by the Fourteenth Amendment. Shelley v. Kraemer and McGhee v. Sipes, supra.
And judicial action "is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state's common-law policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement." Shelley v. Kraemer and McGhee v. Sipes, supra, ___ U.S. at page ___, 68 S.Ct. at page 845.
It is clear the issue whether defendants in the instant action had notice of the restrictive agreement, and other issues urged by the parties plaintiffs and defendants, could now be of no decisive moment.
The trial court's order and judgment of dismissal should be affirmed.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.