Burt v. City of New York

Decision Date26 June 1946
Docket NumberDocket 20120.,No. 275,275
PartiesBURT v. CITY OF NEW YORK et al.
CourtU.S. Court of Appeals — Second Circuit

John C. Burt, pro se.

Robert E. Hugh, and John J. Bennett, Corp. Counsel, both of New York City, (Seymour B. Quel, of New York City, of counsel), for appellees.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from a dismissal of his amended complaint in an action for an injunction and for damages under the "Civil Rights Act"§§ 43 and 47(3) of Title 8, U.S.C.A. The action was brought against the City of New York, the "Board of Standards and Appeals," the "Department of Housing and Building," the "Commissioner of Buildings," the "Borough Superintendent," and the chief engineer and two examiners of the Building Department. The amended complaint is hard to understand, but, considering the latitude to be allowed to pleadings under Rule 8(f), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c (Dioguardi v. Durning, 2 Cir., 139 F.2d 774), we think that the following can be drawn from it. The plaintiff is a "registered architect," practising in New York, who in the course of his business must make applications to officials of the Building Department which they must approve, in order that he may do his work. Those officials — the defendants — have in many instances deliberately misinterpreted and abused their statutory power in order to deny his applications or impose upon him unlawful conditions. Not only have they done this, but they have selected him for these oppressive measures, unconditionally approving the applications of other architects, similarly situated. In the seventh article of his amended complaint he has specified eight instances, in seven of which the defendants have in this way singled him out for unlawful oppression. These allegations go further than merely to assert that the plaintiff has been the victim of deliberate abuse of power by state officials, which would not be enough. They assert that he is the victim of a "purposeful discrimination"; being, if not the only architect so practised upon, at least one, who has suffered what others have in general escaped. Indeed, the concluding allegations are that the defendants' treatment of the plaintiff was actuated by personal hostility.

Whatever may have been true before, it seems to us that, since the decision of the Supreme Court in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497, such allegations will support an action under § 43 and § 47(3) of Title 8, over which § 41(14) of Title 28 U.S.C.A. gives the district court jurisdiction. It is quite true that in that case the court sustained a dismissal of the complaint, and that here, as there, there are involved no "privileges or immunities of citizens of the United States." Nevertheless, it is clear that, had the complaint there read a little differently, the majority would have held that a case had been made out, based upon a denial of the equal protection of the laws under §§ 43 and 47(3). For example, on page 8 of 321 U.S., on page 401 of 64 S.Ct., the Chief Justice said that an "unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination." Again at the bottom of page nine of 321 U.S. 1, 64 S.Ct. 397, 402, 88 L.Ed. 497: "Such discrimination may also be shown to be purposeful, and hence a denial of equal protection." And finally, actual decision was that, "the lack of any allegations in the complaint here, tending to show a purposeful discrimination" could not be supplied merely by the allegation that the defendants had acted "willfully" and "maliciously." Indeed, the dissent of Justice Douglas and Justice Murphy was put expressly and solely upon the ground that they thought those adverbs sufficient to admit proof of "purposeful discrimination." It is true that Justice Frankfurter took quite another ground for his concurrence, and it does not appear what was the ground of Justice Rutledge's vote; but the decision definitely settled it, that, if a complaint charges a state officer, not only with deliberately misinterpreting a statute against the plaintiff, but also with purposely singling out him alone for that misinterpretation, it is good against demurrer.

Further, if there remained any longer doubt whether the act of a state officer is the act of the state, if done under the pretended justification of a statute, that doubt was laid by Screws v. United States, 325 U.S. 91, 107-112, 64 S.Ct. 1031, 89 L.Ed. 1495. It is true that that case involved § 52 of Title 18, U.S.C.A. — the criminal sanction for the "Civil Rights Act"; but, as Judge Biggs observed in Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 248, the phrase "under color of any statute" occurs in both § 43 of Title 8, U.S. Code, and § 52 of Title 18, and must be taken as having the same meaning in each. See also Hague v. Congress of Industrial Relations, 307 U.S. 496, at page 510, 59 S.Ct. 954, 83 L.Ed. 1423. It is also true that in Screws v. United States, supra (325 U.S. 91, 64 S.Ct. 1031, 89...

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