Evening star., 1947-05-26
Covenant Excluding
Negroes Is Upheld
by Appeals Court
By w. g. PolIord

The United States Court OF Ap-
peals today In q two-to-one deci-
sion upheld so-called white cove
Inant excluding Negroes from owning
or occupying certain houses in the
100 block OF Bryant street NV. al
though other houses in the block
are undisputedly occupied by coll
ored persons The opinion affirmed
District Court decisions.
A dissenting opinion was written
by Justice Henry w. Edgerton, who
severely criticized the policy of ex-
Guiding colored persons from white
neighborhoods through covenants.
The houses involved in the cove
nant extend from ia to l52 Bryant
street NV. Adjoining lots, how.
ever. from 154 to 174 Bryant street
NV. are not subject to the cove
nant, the appellate court pointed
out.
The ruling is against Raphael G.
Urciolo. real estate operator, who
sold several of the houses coming
under the covenant and also against
James M. Hurd, colored, an occu-
pant of one OF them.
No Conflict In Decisions.
The majority appellate court de-
cision, written by Justice Bennett
Champ Clark said:
I'VE have no conflict In our de-
cisions, which have, for over Is
years. uniformly upheld the validity
of these restrictive conditions,
whether by deed covenant or agree
ment between property owners,
whether for designated length of
time or perpetual, and whether
against alienation, use and occu-
pancy or both.
1--WE observe that in other juris-
dictions the majority of recent de-
cisions are in accord with our hold
ing" added the majority opinion.
Justice Edgerton in dissenting
said:
THE court holds that perpetual
deed covenants forbidding sale of
homes to Negroes are valid and en-
forceable by injunctions. cancelling
sales, evicting Negroes from homes
that they have bought and pre-
venting sales to other Negroes. I
think this erroneous for five rea-
sons. each independent of the other
four. The covenants are void as
unreasonable restraints on aliena-
ton. They are void because con-
trary to public policy.
Their enforcement by injunction
is inequitable. Their enforcement
by injunction violates the due
process clause of the Fifth Amend
ment. Their enforcement by in
junction violates the Civil Rights
Act which requires that "all citi-
zens of the United States shall have
the same right. in every State and
territory, as is enjoyed by white
citizens thereof, to inherit, purchase,
lease, sell, hold and convey real and
personal property"
No Supreme Court Ruling.
Justice Edgerton in his dissent
also declared that despite the great
Importance of the question whether
racial restrictive covenants are valid
and whether they are enforceable
by injunction, the Supreme Court
has never ruled on either"
At another point in his dissent
Justice Edgerton said, 1T has been
contended that enforcement of COW
enants which exclude race from q
neighborhood does not involve dis
elimination because it permits reci-
procity. This amounts to saying
that if Negroes are excluded from
decent housing they may retaliate
by excluding whites from slums."
Such reciprocity is not merely
imaginary and unequal but irrele-
want, added Justice Edgerton.
Justice Edgerton also declared that
ANY contention that public welfare
is on the whole promoted by pre-
venting Negroes from buying homes
in white neighborhoods is refuted
as matter of law ="
"The housing shortage in the Dis
trict of Columbia has long been
acute. The shortage of decent hous-
ing, or any housing. for Negroes is
particularly ACUTE said Justice
Edgerton.
Justice Wilbur K. Miller heard the
case with Justices Clark and Edger-
ton. The white property owners
were represented by Henry Gilligan
and Thomas x. Dunn.