185 F.2d 859 (5th Cir. 1950), 13158, City of Birmingham v. Monk

Docket Nº13158.
Citation185 F.2d 859
Party NameCITY OF BIRMINGHAM et al. v. MONK et al.
Case DateDecember 19, 1950
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 859

185 F.2d 859 (5th Cir. 1950)



MONK et al.

No. 13158.

United States Court of Appeals, Fifth Circuit.

December 19, 1950

Rehearing Denied Jan. 25, 1951.

Page 860

Horace C. Wilkinson, Special Counsel for City of Birmingham, Thomas E. Huey, Jr., Asst. City Atty., Birmingham, Ala., for appellants.

Thurgood Marshall, New York City, Arthur D. Shores, Peter A. Hall, and David H. Hood, Jr., all of Birmingham, Ala., for appellees.

Before McCORD, BORAH, and RUSSELL, Circuit Judges.

BORAH, Circuit Judge.

This is an appeal from a final judgment in an action brought by Mary Means Monk and several other Negro citizens of the United States, residents of the City of Birmingham, Alabama, in their own behalf and in behalf of other Negroes similarly situated, against the City of Birmingham, James W. Morgan, a city commissioner, and H. E. Hagood, city building inspector, praying for a declaratory judgment that certain zoning laws of the City are unconstitutional and void as violative of the Fourteenth Amendment to the Constitution of the United States, and for an injunction against defendants forever restraining and enjoining them from enforcing said ordinances.

The complaint alleges that plaintiffs own certain real property located in the City of Birmingham which is subject to the provisions of Sections 1604 and 1605 of the General City Code of Birmingham, 1944, and supplementary ordinance No. 709-F. Sections 1604 and 1605 are a part of the basic zoning law of the City. With some minor exceptions, not here important, they make it unlawful for a Negro to occupy property for residential purposes in an area zoned A-1 or white residential, or for a white person to occupy property for residential purposes in an area zoned B-1 or Negro residential. Ordinance No. 709-F, Section 3, provides: 'That it shall be a misdemeanor for a member of the colored race to move into, for the purpose of establishing a permanent residence, or having moved into, to continue to reside in an area in the City of Birmingham generally and historically recognized at the time as an area for occupancy by members of the white race.' These provisions of the ordinances are assailed on the ground that they deny to plaintiffs and others similarly situated the right to occupy, enjoy and dispose of their property solely because of their race and color in violation of the rights guaranteed to plaintiffs by the Fourteenth Amendment and Sections 41 and 42 of Title 8, United States Code Annotated. And the relief prayed for is that the court enjoin the enforcement of the challenged Sections 1604 and 1605 of the City Code and Ordinance No. 709-f and render judgment declaring said ordinances unconstitutional, null and void. The answer of defendants denies that plaintiffs are prevented from occupying their property

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solely because of their race or color and sets up that the classification of certain areas in the City of Birmingham in its zoning ordinances as white resident sections and Negro resident sections 'is based and justified in part upon the difference between the white and Negro races and not solely upon race and color, ' and denies that the ordinances are unconstitutional and invalid. The defendants further aver that the zoning ordinances are a valid and legal exercise of the police power of the City of Birmingham which by specific statutory enactment is commensurate with the police power of the State of Alabama and is a power that is inalienable and cannot be surrendered by the City of Birmingham, Alabama, or by the State of Alabama.

The case was tried before the Court without a jury and thereafter the judge made findings of fact and conclusions of law unfavorable to defendants, and on December 16, 1949, entered a decree declaring the ordinances unconstitutional and void, and enjoining their enforcement.

The trial court found that plaintiffs are the owners of the real estate described in their complaint and that each of them purchased their property for the purpose of occupying it as a residence; that these properties are affected by and subject to the provisions of the ordinances in question and are located in sections of the City which are, by virtue of the zoning ordinances, reserved exclusively for occupation by white persons; that neither the plaintiffs nor other members of the Negro race will be permitted to occupy said property for dwelling purposes solely because they are Negroes; that none of the plaintiffs will be permitted by the City to construct residences on their property to be occupied by them or any member of the Negro race because the City will not issue building permits solely because the ordinances in question limit the occupancy of such properties to members of the white race; that it is the established and universal custom of the City officials to deny building permits to construct residences for Negro occupancy in districts zoned for white occupancy; and that if dwellings were erected on the properties, the plaintiffs or other Negroes could not occupy them without becoming subject, under the provisions of the ordinances, to criminal prosecution, fine and...

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