*1 qualifying interpretation proper jective, and the applies question entire sen- is it to the clause must so as not be read As a result the statute tence. deny to annex the land involved. defendants judgment remanded reversed and cause complaint trial to dismiss the to the court directions with prejudice. dissent. and Mr. Mr. Justice Frantz Hall Justice 19,988. No. al., Commission, et Anti-Discrimination
The Colorado v. J. L. et al. Case, etc.,
(380 34) P. [2d] Rehearing April 8, 1962. denied 1963. December Decided *2 Mr. W. Dunbar, Attorney General, Mr. Duke Frank E. Mr. A. Flowers, Assistant, Mr. Hickey, Clifton P. Assistant, for plaintiff in error. Sayers, Wendell Mr. James Mr. E. M. for de- Tarter, Weldon Tarter, fendants in error.
Mr. W. for Intervenor The Colorado Robert Johnson, Board of Springs Realtors, Inc.
Mr. Mr. Edward H. Sherman, M. Sears, Mr. Edwin Dwight Mr. Ferguson, Mr. John E. Gorsuch, John L. D. Murphey, Messrs. Hoffman Donaldson, & Goldstein, Mr. Mr. Mandel Berenbaum, Mr. Rosenbaum, Charles Joseph Louis G. Mr. Mosko, Mr. Isaacson, James Mr. Mr: Walter M. Radetsky, Stanton Rosenbaum, M. Denver. Mr. Bar, of the Colorado Clinton Simon, Colorado Bar, Colorado Avins, Mr. Alfred Cole, Springs. Mr. Foster, Mr. Hartman, Paul Arnold Mr. Lukas, Mr. Theodore Mr. Edwin J. Leskes, Rabkin, Sol Bar, of the New York Amici Curiae.
En Banc. opinion Court. Moore delivered the Justice Mr. are raised this Court determined issues to be proceedings original parties before to the R. and James Commission. Anti-Discrimination Colorado as the refer we will whom Rhone, O. Elizabeth complaint complainants, said before filed Rhones or *3 Company against it in which Case and J. L. commission alleged, inter alia: was Respondent Fair Colorado has violated the
“1. That refusing by Housing es- real to sell certain Act of 1959 Kingsley property Colorado Drive, located at tate they Complainants Springs, because Colorado, to the Negroes. are September Respondent 10, 1959,
“2. or about That on agreed upon purchase Complainants and terms of and property. sale of said Respondent September about 10, 1959, That on or
“3. promissory accepted Complainants’ in the amount note payment ($500.00) to down Five Hundred Dollars purchase sale; said contract of and and bind the ($500.00) promissory for Five Hundred Dollars note by September 1959, 12, on Com- was redeemed or about personal plainants’ check. subsequent of said contract
“4. That to execution Respondent property purchase and sale said for the Complainants persuade their to to withdraw endeavored offer purchase property. said to September Respondent 14, 1959,
“5. That on or about to had been sold said property told Complainants another purchaser.” Twenty- 18, filed 1959. September was complaint
This Merrell and Reuben M. Sto- thereafter Nelson five days by filing made additional respondents vern were This amend- original an complaint. amendment following allegations: ment contained the Stovern, “1. Nelson Merrell M. That Reuben Avenue, business 29 East Platte Colo- whose address is rado аnd who are Colorado, engaged Springs, real estate for the J. L. Case selling business Realtor, is named as who Company, Respondent complaint, did aid and original part abet said Respondent his refusal located property sell the at 1609 Kingsley Drive, Springs, Colorado, Colorado said Complainants, although Complainants had made offer to bonafide said on purchase property terms at a price specified Nelson Merrell, because Negroes.
“2. That Nelson Merrell endeavored to coerce Com- plainants their withdraw offer purchase the said at 1609 Drive, Colorado Kingsley Springs, Colo- rado, methods of persuasion coercion.
“3. That Reuben M. Stovern purchased the said prop- at 1609 erty Drive, Kingsley Colorado, Springs, Colorado on September 14, for less than money Complain- ants had offered for at it and a time when Complainants’ offer purchase, together with thеir check for Five *4 Hundred D'ollars ($500.00), was on file the J. L. Case and Company, Realtor, office.
“4. That at no time prior the transfer of prop- to Reuben erty M. Stovern did Respondent, or anyone from office, his notify Complainants, nor indicate them in any manner, their offer was not accept- able.” as complaint amended was based on an alleged Housing 1959which Fair Act of
violation Colorado pertinent part: provides in
“(1) housing practice (a) be an unfair It prohibited: hereby unlawful and having right ownership, any
(b) person or of For or possession, transfer, rental, lease or housing: or any lease, or transfer, rent, refuse to To person any deny or from to or withhold otherwise housing sex, persons race, creed, color, such because against any origin ancestry; to or discriminate national person origin, sex, national race, creed, color, because of privileges per- ancestry conditions, or terms, in the or taining housing, any transfer, rental, lease or the or furnishing of services in facilities or thereof, or * ** therewith; connection compel, any person “(f) or abet, incite, to aid, For doing any an section act defined in this as coerce any housing prevent practice; or to obstruct or unfair provisions complying ar- person with the this from attempt any either or order issued thereunder or to ticle indirectly directly to commit act defined in or housing practice.” be an unfair section to (c) “Housing” By used as ’53, C.R.S. 69-7-3 term “premises by does maintained in the Act not include family or as the his owner lessee household of or more four board- without domestic servants than lodgers.” ers or separate
Respondents filed answers in de- allegations complaint to acts violative nied It them the statute. was also asserted upon which the 69-7-1 “is based, action was to statute in whole part contrary to the Constitution contrary of Colorado to the Constitution of the State America.” United States of hearing held
A commission at Colorado was “Findings Springs, 14, 1960, March and thereafter *5 240 entered. The and Order” were Law,
Fact, Conclusions of reference and with were detailed specific of fact findings For purposes the respondents. the each of conduct disputed say ques- suffice it opinion respondents against were tions of fact resolved concluded, inter alia: the commission Case, J. L. discriminated “10. the respondent, That color because of their race or against complainants in with transfer home in connection question; an housing that such discrimination constituted unfair as in practice defined Section of said (1) (a) (ii), Fair Act of 1959. Housing Colorado That respondents, “11. Nelson Merrell and Reuben Stovern, Case, M. aided or abetted the J. respondent, L. in discriminating against complainants because their race or color in connection with the transfer of the home in question; such aiding or consti- abetting tuted an unfair housing practice as defined in Section 5 (1) (e), of said Colorado Fair 1959.” Housing Act of
The commission ordered that “cease and respondents desist from housing unfair committing aforesaid practices.” To “further effectuate the purposes” statute it was ordered commission:
“2. That J. as respondent, L. Case, doing business J. L. Case Realtor, from the listed Company, homes him in his as a broker, capacity licensed real estate shall afford to complainants these opportunity purchasing comparable home as home in question general the same neighborhood aor comparable neighborhood Colorado Springs, Colorado, as the neighborhood question, under the same terms and as such a conditions home would offered other person.
“3. That J. respondent, L. Case, doing business J. L. Case and Company, Realtor, inform the Coordina- tor of the Colorado Anti-Discrimination Commission within from thirty days the date of this Order, at concerning thirty-day manner thereafter, intervals *6 complied this order. he has in which doing respondent, as business Case, L. J. “4. That the Company, Coordi- Realtor, inform the and Case J. L. Commission Anti-Discrimination the Colorado nator of possible fide of- on which bona of the dates as as soon complainants respondent to the said made fers neighborhood general comparable in same homes the of Springs, neighborhood comparable in Colorado aor question.” home in Colorado, as brought matter before statute the was to the Pursuant county by respondents court of El Paso for district proceedings Their before the Commission. of review challenges constitutionality petition review for Housing state Act under several sections of the the Fair hereinafter constitutions, to which we will and federal direct attention. our per- and interestеd court, here, trial some
Before present permitted and intervene, others sons were argument appear and oral curiae, amici as briefs the issues. constitutionality assuming held that, trial court
The jus- ample support evidence to Act, there was in the respondents tify commission conclusion of the disposed had the court violated the Act. However single in the issue embodied action on the constitutional conclusions of law as follows: Housing 1959 1959, Fair Act “1. That Colorado (12) repugnant Chapter
Session Section 6 is Laws, 148, States, contrary and Constitution United to the State XIV Constitution 1, Article Section applies II, 25, it Colorado, Article Section indefi- forth cause in that said section is set with such intelligent uncertainty can- that an man so niteness duty thereunder, and, his discover (12), repugnant supra, That Section 6 “2. said contrary to Articles and of said Con- the same Sections for (12), supra, provides
stitutions in said Section and, authority, an delegation legislative unlawful defendant, as a the order of That, consequence, “3. entered on Commission, Anti-discrimination Colorado dis- should be 12, nullity is a and is void and May missed.” before the 69-7-6, complaints deals with ’53,
C.R.S. thereof, thereon, investigation commission, hearings speci- matters. Subsection (12) other procedural court provides: fically relied on all of at a hearing, the evidence If, “(12) upon respondent find has engaged shall commission housing in an unfair practice as de- or is engaging article, the commission state find- in this its fined shall issue and cause to served upon of fact and ings *7 an such order requiring respondent such respondent unfair and from such housing practice cease and desist affirmative lim- action, including (but take such the transfer, rental, or lease to) housing; ited of manner of and compliance of to the making reports inas of commission judgment such other action will effectuate purposes of article.” and amici who respondents,
Counsel for curiae take the same the Act position, question assert following violates of the Constitution of provisions Colorado: 14—in II,
Article Section the private property use con- is taken for without their respondents private sent.
Article II, provides per- Section 3—which that: “All sons have certain inalienable natural, essential and en- rights, reckoned the among right may and and joying defending liberties; their lives of acquir- ing, seeking and possessing protecting and of property; their obtaining safety happiness.” inalien- infringes the Act on the argument able to select for right respondents themselves persons contract, whom will and authorizes infringement rights on their “civil in their inalienable property.” deprives II, 25—in that re- Section the Act
Article spondents of an essential attribute of without process due of law. — (Separation powers government) III, Artiсle purports delegate powers in that the Act to an ad- agency only ministrative legislative which can be exercised judicial government. branch of the argued question It is also that the Act in violates the Fourteenth Amendment Constitution of United respondents right States in that it denies the inalienable process to freedom of contract without due law, respondents equal protection in that it denies law by purporting to establish an unreasonable classification coverage “premises in the exclusion from maintained family the owner or lessee as the household of his * * * lodgers.” and not than four more boarders or Throughout sup- the briefs which have been filed in port foregoing arguments heavy we find reliance expressions rights,” on such as “inalienable “fundamen- rights,” property,” tal “human to own “essential property,” attribute of “freedom of choice,” etc. As a points by respondents basis for most of relied on for “right invalidation of the Act it is assumed that the dispose property,” “freely of one’s same, alienate” the property” “freedom of choice the sale of one’s *8 property exercise of choice “the that is inherent rights” rights absolute are and freedoms which cannot be subjected legislative purports ato enactment which prevent discriminations based on “race, creed, color, sex, origin ancestry.” national or It is asserted the “exer- that rights of choice that cise is inherent in must be left to the order moral for control rather than in the police power.” hesitancy stating
We have no that funda- there are are humans all with which rights and inherent mental made mention is no though specific even endowed “Truths” constitutions. national or state in either the them Declara- of the language in the held to be self-evident * “* * are created all men that, are of Indepеndence tion cer- creator with endowed their by are equal, Lib- Life, are among these Rights, tain unalienable * * rights Natural and the erty pursuit Happiness creatures of liberties, not the are rights —inherent or state either at the national provisions constitutional man- human with which freedoms The inherent level. govern- “antecedent to all earthly kind is endowed cannot or restrained repealed by ments; rights derived from the laws; Legislator Great rights human Bingham, In case of Gow v. early of the Universe.” recognized. this was was 1011, principle N.Y.S. It which have their men have rights held that all there independent express rights pro- as natural origin are not provisions and that constitutional law, vision rights. the sources these to the Constitution Ninth Amendment Constitu- II, and Article Section
United States clear that “The enumeration in Colorado, make tion of certain not be construed rights constitution of others retained impair disparage peo- to dеny, of this ple.” single A construction sentence en- proper in the greater to far consideration provision titles that afforded to “inherent protection definition of As stated than has heretofore been rights” recognized. “The For- book, Patterson in his recently published Amendment,” sentence it is gotten single Ninth in this announced that: source State, individual, and not the
“(1) sovereignty basis compact of our social individual; resided in the and has always resides now exists the surrender through that our Government (2) endowed naturally individual of his portion by the *9 everyone people rights; (3) of and inherent rights a residue individual United States owns of are and been, and liberties which have never which but State, never be surrendered to which are (4) recognized, protected secured; and and still to be rights liberty and are and inherent, that individual rights but Constitution, derived such are not from the belong to the individual natural endowment.” Congress passing of United States Enabling under Aсt which the State Colorado was require created careful to was that the state constitution political rights shall “make no distinction in civil or on * * account of race *.” The color, constitutions of the recognize rights state and the nation unenumerated God-given rights natural endowment. These should be protected infringement by any per from or diminution any department government. as son well It is the responsibility judiciary solemn a rem “fashion edy” right truly for the violation aof “inalien is remedy provided by able” in the event that no legislative been has right An enactment. inherent human will upheld by against by any person this court action or de government partment of destroy which would such a right or result in discrimination in the manner in which enjoyment permitted thereof to be per as between sons of different races, creeds or color. In Negroes, Rhones, instant case the who are
guaranteed by
II,
Article
Section 3, of the Constitutiоn
part
of Colorado
as a
their
rights
inalienable
right
acquiring, possessing
have
“of
protecting
seeking
property;
happiness.”
obtaining
and of
safety
their
promise carry
Does this
part
with it as
rights
“unenumerated”
inalienable
concept
Negro
against
cannot be discriminated
because “acquire, possess
his
property?
color
his effort to
protect”
upon
This section
constitution is relied
by respondents who contend that it
them with
cloaks
against
natural or inalienable
to discriminate
*10
Negro
prevent him
color,
to
from
of
and
on the basis
his
acquiring property in
a
which cer-
home,
the form of
rights
enjoy
tainly
if
is to
in-
is an essential
one
“seeking
obtaining
safety
happi-
their
and
volved in
argument
In
short, the
is
the unenumerated
ness.”
right
property”
respondents
for which
“natural
of
con-
by
destroy
them as
tend, can be so exercised
to
un-
right
Negroes
natural
of the
enumerated
to seek and
safety
hаppiness
property
acquire
obtain
and to
un-
by
on
fettered
discriminations based
and color.
race
recognize
are certain
at
there
“essential
We
unreasonably
property”
in
which cannot
tributes
fringed
by legislative
upon
there are no
action. However
Supreme
rights.
stated
As was
absolutes in these
York,
Nebbia New
in
States
v.
Court of the United
Ed. 940:
502,
505,
Ct.
78 L.
U. S.
54 S.
*
“* *
rights
rights
property
nor contract
neither
But
government
the citizen
cannot exist if
absolute; for
are
property
fel-
may
the detriment of his
use his
at will
to work them
his freedom of contract
lows, or exercise
right
private
Equally
is
with the
harm.
fundamental
public
regulate
in
it
the common inter-
that of the
* * *”
est.
constitutionally
rights
property,
protected
Thus the
regulation
subject
respondents contend, which
for
police power
proper
of the state. If
a
exercise
protect
purporting to
a
have been enacted to
statute
safety
public
welfare,
no
health, morals,
or common
has
objects,
these
and for
or substantial relation to
real
is
constitutional
reason
a clear invasion of
freedom
dispose
people
enjoy
use,
their
governmental
interference,
without unreasonable
it
Board
will declare
v. State
courts
void. Chenoweth
We hold that here question a object relation to for the exercise legitimate stantial and that it for police power, appropriate pro motion of We object. constantly speak “equality a foundation stone of the American opportunity” of life. We “All men are way solemnly proclaim that created that “all men” have the equal”; inalienable right possessing of acquiring, protecting property. We as an unenumerated hold that inalienable a man right acquifé' life, 'has the one'of'the'necessities dependent upon home for himself and him, those unfet him tered discrimination against on account_pf his by_ *11 race, creed or colorAThe act-Af’lheJpgMature here justified by Article question_is_fully 28, Section the 11^ Constitution of Colorado the Ninth Amendment the Constitution of the United States.
As stated Roscbe Pound by in the introduction “The to Forgotten Ninth Amendment,” supra; declares that there are rights but makes natural
“[It] to define those attempt no not for in expressly provided nor Rights the Bill to provide for them. But securing the states have the attributes powers sovereignty so far as have not been committed to federal the the government by Constitution. So far as inherent rights are not cоmmitted to the federal government, de- fining them securing is left the states or to be taken over the United by people con- by States stitutional amendment. Are not Ninth and Tenth Amendments authority for state legislation to define and secure inherent reasonable expectations in life in civil- ized as it is society and is today not the Ninth Amend- ment a challenge to the states to undertake that work as the conditions of American life today may demand it?”
In this state the legislative branch of government
248 referred “challenge” accept has fit seen Dean Pound. engulfed entire world is at
When, present, concept American whether determine a struggle survive; of opportunity equality with of freedom nation in this arrayed against dictators tyrannical when some with world, throughout proclaim struggle preach, what we practice do not that we justification, and a pre- a sham is opportunity” and that “equality nation; in this without substance shell tense, hollow should hold if we realities blind stаrk would we nation of this welfare safety public In- the Act in question. being protected were might well is won lost struggle deed, whether the ob- to attain of our people the ability upon depend to serve. designed is question which the Act jectives citations nu- lengthen opinion might We throughout courts of last resort decisions merous thereby. would be served good purpose but no nation, Massachu- Court of Supreme recent opinion Against Commission in Massachusetts setts Discrimina- 387, al., et Mass. Colangelo, A. tion, al., et v. J. cases of numerous a collection N. E. contains (2d) the instant case. raised in bearing questions upon There that court are reached by The conclusions sound. under substance of the statute no difference in the *12 in there under case, in that nor the facts consideration to that case from consideration which distinguish upon which upon the All grounds respond- the instant.action. ents in case to overthrow the statute the instant rely were the Court of Massachusetts argued Supreme before Massachusetts that court held act of the that the hereinafter as legislature Except was constitutional. particular noted on the of validity the question same conclusion. order entered in this the case, we reach in Act here It is at that the argued great length for without private takes use question private property this A sufficient answer to the of owner. the consent to the fact to direct attention is contention his has announced the real estate involved owner private to of his free that he wants dispose own will meets use a who private purchaser for the property is on the placed the real estate which upon the terms his mind and changes time the owner any market. If at market from the faith withdraws the property in good circum- is at do so. Under he to these liberty altogether, him private is takеn from for stances his violation of the constitutional provision. use in to consideration orders specific a now pass We case, commission in instant and to entered un- the trial held section which court to single constitutional. full, ’53, forth in (12) set C.R.S. 69-7-6 hereinabove
As a violated finding respondent has that upon directs “re- issue an (1) the commission order: Act such to cease and desist from respondent such quiring ac- take such affirmative practice unfair housing (but transfer, rental, not limited tion, including to) the ** lease of The Act housing; provides (2) the commission “the making has order authority as take compliance” manner reports (3) “such other action in commis- judgment as will (Em- sion article.” purposes this effectuate phasis supplied.) no in the authority
It there is valid argued under which commission could foregoing quotations case, in make the order entered actually L. afford these complain- J. Case respondent “shall home purchasing comparable ants the opportunity neighbor- question general home the same as Springs, or a in Colorado comparable neighborhood hood same and under neighborhood question as such a would be offered terms conditions home other person.”
250 hold that the 69-7-6 portion ’53, (12) of C.R.S.
We which to purports empower commision to order “such other action as in the commission judgment will the purposes effectuate of this article” amounts to a delegation legislative power contrary separation Colorado, provision the Constitution of powers V, in violation of 1, Article Section which that: provides “The state shall be legislative power vested in consisting a assembly senate house of general * * both to be elected by people, representatives, (8th ed.) Limitations we find: Cooley’s In Constitutional is, constitutional law of the settled maxims in that “One legislature to make upon confеrred laws the power department other delegated cannot The of this Court in the authority.” opinions body make cases clear following general assembly make a delegate power law; but it “may may power determine some delegate fact or state of upon law, which things prescribed, depends.” v. State Board Medical Sapero Examiners, 90 Colo. 568, 555; P. Heron, v. (2d) Prouty 127 Colo. (2d) P. 755. legislature cannot ad- delegate to any ministrative blanche” agency “carte authority impose sanctions or penalties for violation of the substantive portion of a statute.
We hold other portions the order entered the commission were in excess of any authority it which could constitutionally enter under the facts dis closed by us, the record before to-wit: All of paragraph “2” of the which order is hereinabove set forth in full; that portion of paragraph “3” of said order requiring that respondent Cаse inform the commission “at thirty- day thereafter, intervals manner in concerning the he has complied order”; and all of paragraph “4” of said order. hold
We further portion Act which authorizes the commission enter an order “requiring *14 * * * action, respondent such affirmative to take such including (but to) or rental, the transfer, limited not * * *” necessity housing; limited of to of is lease notwithstanding specifically the at- mentioned areas power give parenthesis, to tempt, an unlimited the commission’s fashion remedies of sanctions order making. own pronouncement this of Court
We hold that under (2d) Lynch, 907, the il- 102, 18 P. v. 92 Colo. Denver in clearly legal portions from severable subsection 12 are of necessary the Act as is It the Act as whole. necessary vacate the or- stricken, nor is it be a whole entirety. portions of its Those commission der dele- based on an unconstitutional which are the order power, specifically gatiоn above, identified are of upheld. be stricken, which remains should and that entry judgment con- for the cause is remanded of The expressed. views herein sistent with the specially Pringle Frantz and Mr. Justice Mr. Justice concur. Justice Hall dissents.
Mr. specially concurring: Justice Frantz
Mr. history. pronouncement day on of the side Our harmony eternal is in we here said What have fealty founding pledged principles to fathers which the language simple, Inde- of in the Declaration noble pendence. state- For it is historical that Colorado’s fact principles. of hood marks the first fulfillment these Amend- Fourteenth, and Fifteenth Thirteenth, adopted respec- Constitution were ments to the Federal July tively and March 1865, 28, 1868, December 18, on They Amendments, known Civil War 1870. as the 30, product tragic, con- of that intestine were since practically uniform amendments, Each these of flict. “Congress power language, provides have XIII, enforce this article Art. by appropriate legislatiоn.” 2; XIV, 5; XV, Const. Sec. Art. Sec. Art. Sec. U. S. XIII the entire provided In Article for summary, citizenship Article XIV defined slaves; emancipation from abridging privileges states prohibited life, citizens, from or depriving persons immunities or without due from liberty law, or process laws; persons equal protection denying United state Article XV forbade the States or abridge or to vote on account deny anyone race, color, previous of servitude. condition Federal Constitution anatomy Such was *15 sought when Colorado admission people Union as a It memorable fact that we were state. adop- first seek and achieve after the statehood amendments. tion these statehood,
In its consideration of application for Congress of the was conscious sanction of these amend- ments that “enforce it appropriate [these articles] It an legislation.” passed Enabling Act authorizing formation Colorado, State of and empowering the form Convention to a constitution and government, state that the constitution “provided, shall be in republican form, and no make distinction in civil or political rights on account race or color, except taxed, Indians not and not be repugnant to the constitution of the United States and the of the principles declaration of independ- ...” 4. ence Section
For the of this case, purposes it should be observed that our constitution must not make any distinction in or on political rights civil account of or race color and it must be repugnant to the Constitution of the nor to United States the principles of the Declaration These several Independence. conditions at once some- but in overlap, doing so, what leave no doubt that Con- had hearkened the power gress vested in it to enforce three amendments and had sought execute fully them. Congress “to enforce”
Awareness legislation” appropriate “by is reflected amendments part (Vol. concerning Enabling Act. the debate pages Cong. appendix, 1671 to Sess., 2nd Rec. 43rd argument excerpt 1690.) of Senator Sar- from the This point: gent proves the says provision Maryland that this from Senator
“The make requiring constitution the new State’s rights political on account of in civil or no distinction first time raised in reference is now for the or color race * * * very [I]n true. 1868the This is new State. consequently Amendment was ratified, Fourteenth right, Congress duty, now has the it is its to insist thoroughly republican in a constitution shall be say, form; is to it shall see that there none of these discriminations. . . .” epitomized
Actually, that which was Declara- particular Independence expression found more tion Thirteenth, Fourteenth and Fifteenth Amend- in the amendments are ments; these reaffirmations of Independence. Declaration tenets of the Whether we express Enabling words Act command- look ing rights depend upon be made to cannot race color, or to 'mandate therein that our constitution Thir- Constitution which the must abide the Federal *16 and Fifteenth contain teenth, Fourteenth Amendments principles the Declaration of idea, same or to the the Independence, have for statehood would the Convention result. reached the same Enabling had comply Convention Act, with
To Independence, so and in Declaration of defer to all doing recognized “that truths: certain self-evident equal; endowed cer- are men are created rights; among life, are lib- these unalienable tain happiness. these pursuit erty secure That to and the (Em- among governments rights, men . . .” are instituted phasis supplied.)
Some observations evolve from the pertinent quoted portion It acci- declaration. would appear dental differences from the or absence arising presence pigment the skin does not affect The word equality. “among” context that basic signifies rights other than those mentioned exist. And such unenumerated among would be the rights right of enjoying political, social and legal as such equality, particularly would safe- equality guard the of the human dignity person. To secure these “endowed” rights, whether enumerated not, or govern- ments brought are being. into
Thus, the Enabling Act carried into effect the con- stitutionally declared policy the Union. Obedient Act, Enabling its letter and spirit were realized in the Colorado constitution.
Here bill of particulars: II, Art. Sec. 3: “That all natural, persons have certain essential and inalienable rights, be among which may reckoned the right of and their enjoying defending lives and liberties; that of acquiring, and possessing protect- ing and property; and seeking obtaining safety their and happiness.” II,
Art. Sec. 26: “That thеre shall never be in this state either or slavery involuntary servitude. . . .” II, “Aliens, 27: who or hereafter
Art. Sec. may state, bona residents of this may become fide acquire, inherit, real possess, enjoy dispose property, born citizens.” personal, native II, Art Sec. 28: “The this constitution enumeration in deny, impair of certain shall be construed to rights retained disparage people.” others twen- 1: VII, person age Art. Sec. over the “Every years, possessing following qualifications, ty-one all He shall entitled vote at elections: or she resided States, be a citizen of the United shall have in the twelve preceding state months immediately vote, at election which he offers to in the county,
255 pre- may precinct, be city, such time as ward or town, by law.” scribed “* * * doctrines tenets or No sectarian 8: IX, Art. Sec. public taught schools, nor shall in the shall ever be pupils account on be made classification distinction or color.” of race or requirements En- satisfied
Thus, Colorado some of these con- abling noted that should be ItAct. negative provisions others affirmative, are stitutional against policy discrimination prohibitory. state But all or color. race account of on policy. question with such It is
The act in is consonant dealing history chapter Colorado, in the latest commencing with the Civil War. color, with race and concurring: specially Pringle Mr. Justice expressed by Mr. Jus- the views I in accord with am majority opinion of Court. Moore in the tice Corp., Realty pointed v. in Jones Haridor As out was May 1962), (2d) (decided (N.J.) 21, 181 A Housing Jersey are courts Act, Fair the New dealt with police respect required the exercise sustain apply power legislature reme seeks where it detrimental deemed to conditions dial measures people, measures are such and where welfare sought objectives attained rеasonably related clearly arbitrary. such circumstances In not and are expediency policy, of such questions wisdom and legislative questions for the measures government. judicial branch of the spoken respect Legislature with has Colorado dealing power discrimination of this exercise upon housing. effect the welfare of The obvious
people be- as the result of discrimination of the state religion race, color, or creed is stated cause of well Jersey Judge speaking Francis, for the entire New Court supra page prohibi- Haridor, at Jones v. *18 tion such could well about sub- bring of discrimination such dele- stantial toward elimination of progress the terious situations. and in
As out the here majority opinion pointed Haridor, Jones v. therein, and the the cases cited supra, an right of owner to use his as he wishes property not absolute. It is, and has reas- always been, subject onable restraint under the police so as the power long exercise of such a power bears the reasonable relation to health, such public safety welfare, I believe to be case here. the
I would also clarify my position with to Sec- respect tion 2 of the order issued by the Commission requiring the respondents to afford to the complainants oppor- the a tunity purchasing home in comparable the same general neighborhood or comparable neighborhood in and under the and condi- Springs, Colorado same terms person. tions such would be offered to other housing Commission, the findings amply supported engaged show that were testimony, respondents the Act, Fair practices prohibited by Housing specifical- in that refused sell the ly, they question their race. Rhone because of solely complainants that from purchasers While other guarantees prospeсtive dis- subjected be to similar respondents would not action be relief can should criminatory proper, to the where so that complainants possible afforded to exercise their as citizens may permitted rights this country.
I am if opinion that there was evidence por- record order, such then affirmative support within tion of 2 quite the order set forth in Section was Act, Housing Section 12 Fair provisions of constitutional, portion which the Court is, finds “take 12 Commission to empowers of Section * transfer, action rental (* *) including affirmative is, however, evidence in There no housing.” or lease of comparable respondents homes had record that this comparable neighborhood or in in the same listed under neighborhoods, hold I would therefore I do broad. was too record order state disagreement opinion majority is in understand that the my clearly point my reasons view, I would out but paragraph concurring striking in the for order.
Mr. Hall Justice dissenting: majority opinion portion
I dissent from portions Fair which holds that Colorado some *19 Housing Act of 1959are constitutional. private goal a to enable ultimate act is
The the acquire property individual to the without of another contrary the owner the and to the wishes of consent property. legislation, my opinion, has its Such in humble as goal accomplishment which Article II, of that Sec- Colorado, tion of the Constitution of the State of pass: clear words, these states shall come not to private property use not be taken for “Private ** * .” unless the owner, consent of Housing as a the Fair Act of doubt, Without designed applied to case, to the facts this vest property Rhones with title to Case’s residential without Case. the consent the owner majority opinion specially said in
Much is concerning opinion concurring Justice Frantz Mr. guaranteed right: constitutionally “ * * * possessing acquiring, protecting prop- ** * erty II, .” Art. Sec. 3. go exercising right? about how does one Just years nearly United For hundred these States two seeking sought acquire property to an America, one agreement complete wanting sell, and on be- owner to parties parties a sale was consummated. The tween the buyer could enjoyed complete contract. The freedom of buy refuse seller could reason; the for refuse any reason, whimsical or otherwise. for sell opin- majority Housing of 1959 and the Act The Fair compel change Case of this and would now all ion property not Rhones, to the residential transfer his compulsion, sanctions under but voluntarily, comply. imprisonment for failure to might his lead to II, and Article Section done 14 is, can be how Just meaningful remain of Colorado Constitution unclear. me, unwilling majority, conclusions on rest its Pringle provision, foregoing and Justice constitutional justify concurring opinion, specially sеek to in his Anti-Discrimination action Colorado act and power police of the state. Commission under concurring opinion, specially Pringle, in his Justice states: majority opinion pointed and in here
“As out supra, therein, the cases cited Haridor, Jones v. wishes is his as he an owner to use subject always is, been, It has absolute. long police power, under so reasonable restraint power of such relation the exercise bears reasonable *20 public safety I believe health, the and welfare. Such to (Emphasis supplied.) be the case here.” language point I it has subscribe, To that but out that application complaining use no here. one is No property. complaint made of that title the Case The is stands in the Rhones. Case, name of rather than persuaded a
I am that the or names in which name nothing public health, title stands with has to do — safety general only welfare. It is use not the — ownership problems creates calling play unquestioned police pow- into warrant necessary protect public powers state, ers of the safety general public police health, welfare. The
259 deal, not majority sanction here powers which the only. property, title but with the use of the “ * * * majority opinion We that: It stated in the is right man a inalienable unenumerated an hold that as a life, right acquire necessities of one of has ** * upon .” dependent him himself and those home for seeking acquire home; doubt are Rhones no The prop- acquire the act, their however, under purposes erty other was an investment or for as seeking just compelling a home. as as were is if authority case, majority opinion one cites as Against al., Discrimination, et Massachusetts Commission (de- Colangelo, (2d) (Mass.) v. al., A. J. et 182 N.E. 595 May 1962), cided and states: might lengthen opinion
“We with citations throughout numerous decisions of courts of last resort good purpose nation, but no there- would be served * * * by. .” My case, research has uncovered Massachusetts dealing problem other, none us. with the before involving True, there are other cases discrimination in public housing; public housing however, cases, or cases involving public present entirely funds or benefits, an problem present different than in the case at bar. Realty Corp., (N. J.), (2d) In Jones v. Haridor 181 A. (decided May 21,1962) it is stated: point “It true, is out, Haridor and the Strausses involving cases attacks on such anti-discrimination laws throughout country. are few in number in But jurisdictions presented, four matter where the been has Jersey, Washington, York, New California and New order named three have sustained their con- first * * * stitutionality, .” The four cases referred to are: Against York Discrimina New State Commission
1. Apts. (1958), (2d) 750, Pelham Hall 170 N. Y. S. v. tion (2d) First, 334. we Misc. note this decision *21 260 and consid- resort cannot be
not that of a court of last deals Moreover, the case ered as a binding precedent. rights only housing.” in assisted with possessory “public Discrim., Sons, Inc., Against 2. Levitt & v. State Div. a case law etc., 514, (2d) 177, 31 N. J. 158 A. where the assisted accommoda- housing applies only “public tions.” In its court said: opinion, the “ ** * is There are two The questions here. first whether as- plaintiffs’ developments ‘publicly sisted accommodation’ used housing as that is phrase in 4 of Against section the Law Discrimination and * * * 5 .” amplified by (k) section of that statute. court decided that came housing question within the terms of the statute discrimina- dealing with tion in “public assisted housing” concluded that to such was housing statute constitutional.
3. Burks v. Construction Poppy Company (Cal.), 370 P. 313. (2d) Here we have another case dealing discrimination in (a) “business establishments” (b) “publicly assisted court housing accommodations.” The house in a decided a housing was development establishment,” “business also the property question was a assisted “publicly housing accommodа- tion,” and that the act dealing with discrimination dealings with that type of was constitutional. The decision grounded is on the fact the housing was “publicly assisted.”
4. In O’Meara v. Washington Against State Board Discrimination, Wash. 2d 365 P. (2d) (1961), the court, in a five to four decision, held the Washing- ton act unconstitutional, this in of the fact spite the legislation in question only sought guarantee to all “the to secure publicly assisted housing without discrimination.”
There the court said: home,
“The respondents’ was ordered sold to a Negro, specifically protected such against an order
261 Washington constitution, by of state amendment 9 the property provides, ‘Private inter alia: which * * * private .’ for use be taken legislature it is invalid because “The act of ** * right. derogates .” constitutional from this dealing problem only with case The other Realty my Haridor come is Jones v. attention has upon by supra. Corp., relied Justice This is case concurring Pringle opinion. Clearly specially in his public housing. this, involved case As evidence court said: Housing
“The Administration entire site had Federal purposes. stipu- approval home construction Haridor for subject Against Law Discrimi- lated it was to the dwellings buyers nation sold because it who financed purchases through mortgage guaranteed their loans agency. public that Federal Such use credit both purchaser development seller draws into the category publicly housing assisted accommodations. * ** (Emphasis .” supplied.) agree
I that the Massachusetts case involves the same question presented in case now us. I before find involving no other question. decided case this identical majority The states that “The conclusions reached by their [Massachusetts] court I are sound.” find noth- ing opinion in indicating in that case Massa- chusetts against has taking constitutional inhibition private private property for use. There the court said “ * * * Clearly taking that: prop- therе has been no ** * erty in a constitutional sense. .” may, my opinion, Be that as purpose it if Housing Colorado Fair accomplished, Act 1959 Case bewill divested his title without his consent and title my will rest the Rhones. Such a result, humble opinion, “taking property would a constitute in a con- flagrant stitutional sense” and in Section II, violation of Article of the Constitution of the State Colorado. opinion, majority coupled of Justice rights nullify Pringle, cherished would powers ulti- expand police extent must to an rights. mately Overlooked is all constitutional erode promote power police is invoked to fact that public individuals; welfare of and not the two welfare Rhones. case, in this provisions giving Winking clear constitutional at expansion police
judicial unlimited sanction to police powers may well be forerunners of state. as in act unconstitutional I declare the entire would Consti- 14 of the II, of Article Section violation direct *23 Colorado. tution of the State of 19,795.
No. People
Paul Lee Edwards v. of Colorado. State (377 399) P. [2d] January 14, Rehearing- 1963. denied 1962. Decided December