Clinard v. City of Winston-Salem
6 S.E.2d 867
N.C.
1940
Check Treatment
Stacy, C. J.

Tbe question for decision is wbetber reciprocal inhibitions of occupancy of residential districts by members of tbe white and Negro races, fairly apportioned, but admittedly invalid if they stood alone, may be inserted in a general zoning ordinance adopted under authority of cb. 250, Public Laws of 1923. We think not. Tbe law will not permit the indirect accomplishment of that which it directly forbids. Glenn v. Comrs. of Durham, 201 N. C., 233, 159 S. E., 439.

The precise question seems to be one of first impression, certainly in this jurisdiction, albeit some of the cases speak of “segregation ordinances” as zoning ordinances, notably City of Richmond v. Deans, 37 Fed. (2d), 712, and Allen v. Oklahoma City, 52 Pac. (2d), 1054. The case of Bowen v. City of Atlanta, 125 S. E., 199, dealt with a zoning ordinance, but the decision there was rested on authority of a segregation case.

This Court held in 1914 that an ordinance providing for the segregation of the white and Negro races in the city of Winston-Salem was void for want of legislative sanction. S. v. Darnell, 166 N. C., 300, 81 S. E., 338. The reasoning of the case, like that in some of the others hereafter noticed, went farther than the narrow ground upon which it was decided, and would seem to be helpful here. There, it was said: “Besides, an ordinance of this kind forbids the owner of property to sell or to lease it to whomsoever he sees fit, as well as forbids those who may be desirous of buying or renting property from doing so where they can make the best bargains. Yet this right of disposing of property, the jus disponendi, has always been held one of the inalienable rights incident to the ownership'of property, which no statute will be construed as having power to take away. In Bruce v. Strickland, 81 N. C., 267, it is said: ‘The jus disponendi is an important element of property and a vested right protected by the clause in the Federal Constitution which declares the obligation of contracts inviolable.’ . . . This ordinance forbids a white man or a colored man to' live in his own house if it should descend to him by inheritance and should happen to be located on a street where the majority of the residents happen to be of such different race. . . . We therefore hold that the ordinance was adopted without authority of law.” Nothing was said in Berry v. Durham, 186 N. C., 421, 119 S. E., 748, which was intended to delimit the adumbra-tions of the Darnell case, supra.

*122 It is conceded that the question posed by the record is one arising under the Federal Constitution and is to be determined by the implications of the decisions of the Court of last resort in the absence of a direct holding on the subject.

In 1917 the Supreme Court of the United States had before it an ordinance of the city of Louisville, Ky., which forbade persons of one color “to move into and occupy as a residence” a house in any block in which a majority of houses were already occupied by persons of the other color. This ordinance was held to be void in an action brought by a white man against a colored man for specific performance of contract to purchase a lot in a block where a majority of the residences were then occupied by white persons. The contract of purchase relieved the defendant from obligation to perform if he were not permitted under the law “to occupy said property as a residence.”

The Court in deciding the case stated the broad question presented for determination to be: “May the occupancy, and, necessarily, the purchase and sale of property of which occupancy is an incident, be inhibited by the States, or by one of its municipalities, solely because of the color of the proposed occupant of the premises?” The question was answered in the negative. Buchanan v. Warley, 245 U. S., 60.

In arriving at this conclusion the Court adverted to the cases of Pressy v. Ferguson, 163 U. S., 256 (where it was held that a statute of Louisiana requiring railway companies carrying passengers to provide in their coaches equal but separate accommodations for the white and colored races, did not run counter to the Fourteenth Amendment), and the Berea College case, 211 U. S., 45 (where it was held that a statute of Kentucky, while permitting the education of white persons and Negroes in different localities by the same incorporated institution, prohibited their attendance at the same place, was within the reserved power of the Legislature to deal with the charters of its own corporations), and distinguished the principle upon which these cases were decided by quoting with approval from the opinion in Carey v. Atlanta, 143 Ga., 192, 84 S. E., 456: “In each instance the complaining person was afforded the opportunity to ride, or to attend institutions of learning, or afforded the thing of whatever nature to which in the particular case he was entitled. The most that was done was to require him as a member of a class to conform with reasonable rules in regard to the separation of the races. In none of them was he denied the right to use, control,, or dispose of his property, as in this case. Property of a person, whether as a member of a class or as an individual, cannot be taken without due process of law.” This same distinction finds full support in our own decisions as pointed out by Hoke, J., in Berry v. Durham, supra. See Missouri ex rel. Gaines v. Canada, 305 U. S., 337; Annotation, 103 A. L. R., 713.

*123 In Harman v. Tyler, 273 U. S., 668, decided in 1927, and City of Richmond v. Deans, 281 U. S., 704, decided in 1930, the former was reversed and the latter affirmed, without written opinion or further elaboration, on authority of the Buchanan case, sufra, and this after the decision in Euclid v. Ambler Realty Co. (1926), 272 U. S., 365, where a general zoning ordinance was upheld which contained no provision for segregation of the races such as the one here challenged. In re Appeal of Parker, 214 N. C., 51, 197 S. E., 706. Thus, it appears that the Court has purposely refrained from modifying or delimiting its decision in the Buchanan case, supra, and has elected to regard it as the final pronouncement on the subject. It is broad enough to cover the instant ease and is therefore controlling.

We are presently concerned, -as was the Court in the Buchanan case, supra, with municipal restrictions upon the use and occupancy of property as affected solely by the racial status of the proposed occupant. The matter is regarded as beyond the reach of the police power. Booth v. Illinois, 184 U. S., 425; Otis v. Parker, 187 U. S., 606. “The reserved police power of the State must stop when it encroaches on the protection accorded the citizen by the Federal Constitution.” Women’s Kansas City St. Andrew Society v. Kansas City, Mo., 58 F. (2d), 593.

The right of the plaintiffs to test the disputed provision by injunction is not controverted. Indeed, there is ample precedent for the action. Loose-Wiles Co. v. Sanford, 200 N. C., 467, 157 S. E., 432; Advertising Co. v. Asheville, 189 N. C., 737, 128 S. E., 149. See, also, concurring opinions in Turner v. New Bern, 187 N. C., 541, 122 S. E., 469, and R. R. v. Goldsboro, 155 N. C., 356, 71 S. E., 514.

We conclude that on the record as presented the plaintiffs are entitled to their prayer.

Error.