Lunn, Stuart D.

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Louisiana Law ReviewVolume 9 | Number 3March 1949The Constitutionality of Restrictive CovenantsStuart D. LunnThis Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationStuart D. Lunn, The Constitutionality of Restrictive Covenants, 9 La. L. Rev. (1949)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol9/iss3/4LOUISIANA LAW REVIEWLOUISIANA STATE UNIVERSITY LAW SCHOOLUNIVERSITY STATION, BATON ROUGE, LOUISIANASubscription per year $4.00 (Foreign $4.50) Single copy $1.00VOLUME IX MARCH, 1949 NUMBER 3STUDENT BOARDROBERT T. JORDAN, Editor-in-ChiefSTUART D. LUNN, Associate EditorGEORGE W. PUGH, Associate EditorWILTON H. WILLIAMS, JR., Associate EditorHENRY G. PAVY, Index EditorCARL E. ACHEE DREW MCKINNIS JACK J. ROGERSJACK C. CALDWELL ELLIS C. MAGEE WILLIAM E. ROGERSSIDNEY A. CHAMPAGNE VIRGINIA L. MARTIN WILLIAM C. SANDOZLELAND H. COLTHARP, JR. J. DOUGLAS NESOM LEROY H. SCOTT, JR.LAWRENCE E. DONOHOE, JR. JAMES P. NORRIS, JR. ROBERT B. SHAWWOOLEN J. FALGOUT DONALD L. PELTIER WILLIAM E. SKYETHOMAS A. HARRELL MARY BIRD PERKINS JIMMY M. STOKERROBERT L. ELEINPETER JOHN A. RICHIE, JR. WILLIAM R. VEALGILLIS W. LONG KENNETH RIGBY ROBERT H. WILLIAMSFACULTY ADVISORY BOARDMILTON M. HARRISON, Faculty EditorDALE E. BENNETT A. LEON HEBERT, JR. CHARLES A. REYNARDHARRIET S. DAGGETT PAUL M. HEBERT ALVIN B. RUBINJOSEPH DAINOW HENRY G. MCMAHON J. DENSON SMITHIRA S. FLORY WEX S. MALONE ROBERT LEE TULLISROBERT A. PASCALBEVERLY DENBO WALKER, SecretaryPublication in the REVIEW does not imply agreement with the viewsexpressed in any of the contributors.Unless otherwise indicated, the authors of COMMENTS and CASENOTES are students of Louisiana State University Law School.CommentsCONSTITUTIONALITY OF RESTRICTIVE COVENANTSThe United States Supreme Court cases of Shelley v. Krae-mer' and Hurd v. Hodge2 are companion cases that effected areversal in what generally had been conceived to be the law asto restrictive covenants forbidding the sale or use of real prop-erty to certain racial groups. Both cases involved similar agree-1. 68 S.Ct. 836 (U. S. 1948).2. 68 S.Ct. 847 (U. S. 1948).[394]COMMENTSments along the familiar line, the Shelley case arising in a stateand the Hurd case in the District of Columbia. The propertyowners of the vicinity had signed an agreement designed to pre-vent ownership or occupancy of any of the property by "anyperson not of the Caucasian race" in the state case and by "anyNegro or colored person" in the District of Columbia case. Ineach case a sale was made to a Negro, and the other propertyowners sued to enforce the agreement. In the Shelley case theSupreme Court held that judicial enforcement of such restrictivecovenants amounted to state action violating the equal protec-tion clause of the Fourteenth Amendment. In the Hurd case, theconstitutional question of due process under the Fifth Amend-ment was not decided. Judicial enforcement of the restrictivecovenants was denied on the ground that it was prohibited bythe Civil Rights Act of 1866. 3 The District of Columbia is in-cluded within the meaning of the term "every State and Terri-tory,"4 in Section 1978 of the Revised Statutes:"All citizens of the United States shall have the sameright, in every State and Territory, as is enjoyed by whitecitizens thereof to inherit, purchase, lease, sell, hold, andconvey real and personal property."5These decisions simply state that the courts may not enforcethe so-called restrictive covenants based on racial grounds wher-ever they may arise, but such agreements, however, are notinvalid per se. As long as their purpose is achieved privatelythrough voluntary adherence to their terms, there can be nocourt interference for there is no governmental action to invokethe Fourteenth Amendment and legislation enacted to effect itspurposes.The Court had no difficulty in distinguishing Corrigan v.Buckley,' previously thought to be authority for the enforce-3. 14 Stat. 27, 8 U.S.C.A. § 42 (1866). The Civil Rights Act of 1866 wasre-enacted in Section 18 of the Act of May 31, 1870, 16 Stat. 144, 8 U.S.C.A.§ 41 (1870).4. Cf. Geofroy v. Riggs, 133 U. S. 258, 10 S.Ct. 295, 33 L.Ed. 642 (1890);Talbott v. Silver Bow County, 139 U. S. 438, 444, 11 S.Ct. 594, 596, 35 L.Ed.210 (1891).5. 14 Stat. 27, U.S.C.A. § 42 (1866).6. 271 U. S. 323, 46 S.Ct. 521, 70 L.Ed. 969 (1926). The court also dis-tinguished Hansberry v. Lee, 311 U. S. 32, 61 S.Ct. 115, 85 LEd. 22 (1940).Here again the issue did not arise as to whether judicial enforcement of thecovenant amounted to state action. The case held that the petitioners, whowere suing to enforce the restrictive covenant, would be deprived of prop-erty without due process of law if they were held bound by an erroneousstipulation in a previous suit, termed a class suit, to which they had notbeen a party.1949]LOUISIANA LAW REVIEWability as well as the legality of such covenants. 7 In that case,where there was a restrictive covenant not to sell to Negroesfor a period of twenty-one years, the Supreme Court refused totake jurisdiction as there was no substantial constitutional ques-tion, the appeal being based solely on the contention that thecovenant itself was void because it violated the Fifth, Thirteenthand Fourteenth Amendments and the Civil Rights Act. The case,arising in the District of Columbia, could not conceivably beauthority for the proposition that the Fourteenth Amendmentis not violated by such covenants being judicially enforced, asthat amendment applies only to states. Whether or not judicialenforcement amounted to state action was left undecided, forthat question had not been raised by the petition for the appealor by any assignment of error. On a jurisdictional point, there-fore, the appeal was dismissed.8 Thus the Corrigan case decidedonly that these covenants in and of themselves do not violatethe constitutional mandate and is not authority for the propo-sition that such a covenant is both valid and enforceable byinjunction, although such covenants have been enforced on itsauthorityY The latter question had never been properly raisedbefore the Supreme Court prior to the instant cases.Ordinances and statutes designed to prevent Negroes fromacquiring and using particular property have always been heldinvalid as they are too obviously prohibited by the FourteenthAmendment, and attempts to justify them as a lawful exerciseof the police power to prevent conflict and ill feeling betweenthe races have failed. 107. See McGovney, Racial Residential Segregation by State Court En-forcement of Restrictive Agreements, Covenants, or Conditions in Deedsis Unconstitutional (1945) 33 Calif. L. Rev. 5. In Hurd v. Hodge, 162 F.(2d)233, 235 (App. D.C. 1947), speaking of the Corrigan case, Justice Edgerton,dissenting, said: "Accordingly it decided nothing with regard to racial re-strictive covenants except that the Constitution and the Civil Rights Actplainly do not make them void." See also Mays v. Burgess, 79 App. D.C. 343,349, 147 F.(2d) 869, 162 A.L.R. 168 (1945), certiorari denied 325 U. S. 868, 65S.Ct. 1406, 89 L.Ed. 1987 (1945), rehearing denied 325 U.S. 896, 65 S.Ct. 1567, 89L.Ed. 2006 (1945).8. Corrigan v. Buckley, 271 U.S. 323, 331, 46 S.Ct. 521, 70 L.Ed. 969 (1926).9. Similar restrictive covenants have been upheld by the United StatesCourt of Appeals for the District of Columbia in Torrey v. Wolfes, 56 App.D.C. 4, 6 F.(2d) 702 (1925); Cornish v. O'Donoghue, 58 App. D.C. 359, 30 F.(2d)983 (1929), cert. denied 279 U.S. 871, 49 S.Ct. 512, 73 L.Ed. 1007 (1929); Russellv. Wallace, 58 App. D.C. 357, 30 F.(2d) 981 (1929), cert. denied 278 U.S. 871,49 S.Ct. 512, 73 L.Ed. 1007 (1929); Grady v. Garland, 67 App. D.C. 73, 89 F.(2d)817 (1937), cert. denied 302 U.S. 694, 58 S.Ct. 13, 82 L.Ed. 536 (1937); Hundley v.Gorewitz, 77 App. D.C. 48, 132 F.(2d) 23 (1942); Mays v. Burgess, 79 App.D.C. 343, 147 F.(2d) 869, 162 A.L.R. 168 (1945), cert. denied 325 U.S. 868, 65S.Ct. 1406, 89 L.Ed. 1987 (1945), rehearing denied 325 U.S. 896, 65 S.Ct. 1567,89 L.Ed. 2006 (1945).10. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.[VOL. IX1949] COMMENTS 397In Louisiana the general rule is that building and use re-striction clauses constitute real rights, not personal to the vendor,running with the land for the benefit of all other grantees undera general plan of development. The remedy of other grantees isby injunction to prevent a violation." This rule remains, ofcourse, unaffected except as to the enforceability of raciallyrestrictive covenants. The Louisiana decision of QueensboroughLand Company v. Cazeaux,1 2 was the first in the United Statesholding that a restraint against the sale to any Negro was legaland enforceable. It distinguished between local and perpetualinalienability as compared with partial and temporary inalien-ability holding the latter valid and enforceable, the covenant inthe case being for twenty-five years. The question as to judicialenforcement of the covenant amounting to state action was notraised. However, Justice Provosty, speaking for the court, said:"The fourteenth amendment, in so far as prohibitingdiscrimination against the negro race, applies only to statelegislation, not to the contracts of individuals. Civil RightsCases, 109 U.S. 62, 3 Sup. Ct. 18, 27 L. Ed. 835.' 1 3Had a broader view been taken as to what constituted state ac-tion, the decision might not have been reached so easily. In viewof the instant cases, the Louisiana Supreme Court can no longerenforce a restrictive covenant based on race or color alone, de-spite the fact that such covenants have been held to constitutea dismemberment of ownership in the nature of a servitude and1918C 210, Ann. Cas. 1918A 1201 (1917). Harmon v. Tyler, 273 U.S. 668, 47S.Ct. 471, 71 L.Ed. 831 (1927); City of Richmond v. Deans, 281 U.S. 704, 50S.Ct. 407, 74 LEd. 1128 (1930).Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 257 (1948), de-clared a state law denying equal enjoyment of property rights to a certainracial group was not a legitimate exercise of the state's police power.11. Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641, L.R.A.1916B 1201, Ann. Cas. 1916D 1248 (1915); Hill v. Win. P. Ross, Inc., 166 La.581, 117 So. 725 (1928); Ouachita Home Site & Realty Co. v. Collie, 189 La.521, 179 So. 841 (1938).Louisiana courts have treated a restriction not to sell to a negro as adismemberment of ownership operating as a servitude on the land. The rightto alienate (abusus) has been held to be subdivided and only partially trans-ferred to the new owner, there being withheld from him that part whichwould enable him to sell to a negro.Art. 709, La. Civil Code of 1870, states: "Owners have a right to estab-lish on their estates, or in favor of their estates, such servitudes as theydeem proper; provided, nevertheless, that the services be not imposed onthe person or in favor of the person, but only on an estate or in favor of anestate; and provided, moreover, that such services imply nothing contraryto public order."12. 136 La. 724, 67 So. 641, L.R.A. 1916B 1201, Ann. Cas. 1916D 1248 (1915).13. 136 La. 724, 728, 67 So. 641, 643.398 LOUISIANA LAW REVIEW [VOL. IXtheir breach to effect a resolutory condition or condition subse-quent in the contract. 14Employment of state action to enforce any agreement orarrangement (whatever it may be called) denying essential civilrights secured by the Fourteenth Amendment is now forbidden.The extent to which any system that might involve racial discrim-ination as to property rights will be scrutinized is indicated bythe case of Harmon v. Tyler,15 where the United States SupremeCourt held unconstitutional a New Orleans ordinance whichbarred whites or Negroes from any portion of the city excepton the written approval of a majority of the persons of the oppo-site race inhabiting that particular portion of the city. Thisdecision indicates that a discrimination is nonetheless invalidthough counterbalanced by another of similar character. 6The decision in the Shelley and Hurd cases came as no sur-prise to many,1 7 since it has long been settled that not only legis-lation and procedure, but judicially adopted rules of substantivelaw are invalid if they conflict with the Fourteenth Amendment. 8Taking the premise that the courts cannot validly do that whichis forbidden the legislature, and thus refusing to construe nar-14. Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641 (1915).15. 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831 (1927).16. Cases from other states upholding similar covenants are Wyatt v.Adair, 215 Ala. 365, 110 So. 801 (1926); Los Angeles Investment Co. v. Gary,181 Cal. 680, 186 Pac. 596, 9 A.L.R. 115 (1919); Wayt v. Patee, 205 Cal. 46,269 Pac. 660 (1928); Littlejohns v. Henderson, 111 Cal. App. 115, 295 Pac. 95(1931); Chandler v. Ziegler, 88 Colo. 1, 291 Pac. 822 (1930); Stewart v. Cronan,105 Colo. 393, 98 P.(2d) 999 (1940); Meade v. Denistone, 173 Md. 295, 196 Atl.330 (1938); Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330, 38 A.L.R. 1181(1922); Shulte v. Starks, 238 Mich. 102, 213 N.W. 102 (1927); Koehler v. Row-land, 275 Mo. 573, 205 S.W. 217, 9 A.L.R. 107 (1918); Porter v. Johnson, 232Mo. App. 1150, 115 S.W.(2d) 529 (1938); Thornhill v. Herdt, 130 S.W.(2d) 175(Mo. App. 1939); Porter v. Pryor, 164 S.W.(2d) 175 (Mo. App. 1942); Lyonsv. Walden, 191 Okla. 567, 133 P.(2d) 555 (1942); Doherty v. Rice, 240 Wis.389, 3 N.W.(2d) 734 (1942); Ridgeway v. Cockburn, 163 Misc. 511, 296 N.Y.Supp. 936 (1937).17. Hurd v. Hodge, 162 F.(2d) 233, 235 (App. D.C. 1947) (dissent), notedin (1945) 33 Calif. L. Rev. 5.18. Ex parte Commonwealth of Virginia, 100 U.S. 339, 347, 25 L.Ed. 676(1880); Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Twiningv. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Brinkerhoff-FarisTrust & Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930);Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R.527 (1932); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213,128 A.L.R. 1352 (1940); A. F. of L. v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed.855 (1941); Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed.192; Bakery and Pastry Drivers and Helpers Local 802 of InternationalBrotherhood of Teamsters v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 LEd. 1178(1942); Cafeteria Employees Union v. Angelos, 320 U.S. 293, 64 S.Ct. 126, 88L.Ed. 58 (1943); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed.1295 (1946). Cf. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188,144 A.L.R. 1487 (1938).COMMENTSrowly the constitutionally guaranteed civil rights, a federaldistrict court in California, in Gandolfo v. Hartman,19 has re-fused to enforce a restrictive covenant against transfers to Chi-nese. The Civil Rights cases 20 had held that the FourteenthAmendment applies to the action of state officers, executive orjudicial, and to state laws and acts done under state authority,thus, the obvious proposition that the state may not, by any ofits agencies, violate the Fourteenth Amendment.21 The presentdecisions mark only one more step in the Supreme Court's effortsto validate the proposition stated in Strauder v. West Virginia,2that a state may not make the enjoyment of any civil right de-pendent upon race or color, and that all persons, whether coloredor white, shall stand equal before the laws of the states. Espe-cially included as a protected civil right is equality in the enjoy-ment of property, which was first seen as a prerequisite to otherbasic civil liberties in the Slaughter-House cases.23 The decisionswere no doubt influenced by the social interest in adequate Negrohousing and the current national policy to eradicate all racialdiscrimination in order to accomplish a higher standard of livingfor the Negro. Their efficacy toward those ends remains to beseen.24The difficulty of finding a constitutional basis for holdingthat such a restrictive covenant was void in and of itself wasperhaps one reason the court did not disturb its holding in theCorrigan case,2 5 but the result leaves such covenants in a twi-light zone, not void but not legally enforceable. Yet in the Hurdcase, it was indicated that even had there been no statute, en-forcement of such covenants in a federal court would be heldcontrary to the public policy of the United States, 26 again indica-tive of federal policy on all points involving racial issues. Futuremanifestations of this trend will be interesting, especially in thelight of the existing acceptance of the principle set up by Plessyv. Ferguson27 that segregation is valid so long as facilities are sub-stantially equal.STUART D. LUNN19. 49 Fed. 181, 16 L.R.A. 277 (S. D. Calif. 1892).20. 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883).21. Many decisions but especially Commonwealth of Virginia v. Rives,100 U.S. 313, 25 L.Ed. 667 (1880).22. 100 U.S. 313, 25 L.Ed. 664 (1880).23. 83 U.S. 36, 21 LEd. 394 (1873).24. See Hurd v. Hodge, 161 F.(2d) 233, 235 (App. D.C. 1947)(dissent).25. 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969 (1926).26. 68 S.Ct. 847, 853 (U.S. 1948).27. 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). But see Taft, C. J., inGong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172 (1927).1949]

The Constitutionality of Restrictive Covenants

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The Constitutionality of Restrictive Covenants

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