255 F.Supp. 115 (E.D.Mo. 1966), 65 C 301 3, Jones v. Alfred H. Mayer Co.

Docket Nº:65 C 301 3
Citation:255 F.Supp. 115
Party Name:Jones v. Alfred H. Mayer Co.
Case Date:May 18, 1966
Court:United States District Courts, 8th Circuit, Eastern District of Missouri
 
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Page 115

255 F.Supp. 115 (E.D.Mo. 1966)

Joseph Lee JONES and Barbara Jo Jones, Plaintiffs,

v.

ALFRED H. MAYER COMPANY, a corporation, Alfred Realty Company, a corporation, Paddock Country Club, Inc., a corporation, Alfred H. Mayer, an individual andan officer of the above corporations, Defendants.

No. 65 C 301(3).

United States District Court, E.D. Missouri, Eastern Division.

May 18, 1966

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Samuel H. Liberman, II, St. Louis, Mo., for plaintiffs.

Israel Treiman, Shifrin, Treiman, Agatstein & Schermer, St. Louis, Mo., for defendants.

REGAN, District Judge.

This matter is before the Court on defendants' motion to dismiss plaintiffs' first amended complaint. The action was brought by Joseph Lee Jones, a Negro, and his wife, both of whom are employed by the Veterans Administration, an agency of the United States Government. The injury alleged is the refusal of defendants to sell a house and lot to plaintiffs solely because of Jones' race, in alleged violation of plaintiffs' rights under Sections 1981, 1982, 1983 and 2000a, Title 42, U.S.C., Executive Order No. 11063, providing for Equal Opportunity in Housing, the Thirteenth and Fourteenth Amendments to the Constitution of the United States, Article I, Section 8, Clause 18, and Article VI of the Constitution of the United States. Plaintiffs assert jurisdiction in this court pursuant to Section 1983, 42 U.S.C. and Sections 1331, 1337 and 1343, Title 28, U.S.C.

For the purpose of the motion to dismiss, we take as true the facts well pleaded in the complaint. Bonnot v. Congress of Independent Unions, Local No. 14, 8 Cir., 331 F.2d 355.

Defendant, Alfred H. Mayer Company, a Missouri corporation, is engaged in the business of developing subdivisions, that is, buying and holding parcels of land in St. Louis County, Missouri, and building homes on this land to be resold to the public. Defendant, Alfred Realty Company, a Missouri corporation, is a real estate dealer which acts as the exclusive sales agent of the houses built by Alfred H. Mayer Company. Defendant Alfred H. Mayer owns a controlling interest in both corporations and is their managing officer. Defendant, Paddock Country Club, Inc., a Missouri corporation, is controlled by the other defendants 'for the primary use and benefit of the people who will reside in the subdivision.'

Defendants are alleged to be presently developing a subdivision in St. Louis County known as Paddock Woods. After plaintiffs inspected a display house on the site and determined that one style of home particularly suited their needs and was reasonably accessible to their places of employment, they sought to obtain additional information from defendants and offer to purchase such a home. Plaintiffs allege that they desire to purchase a Hyde-Park model home, which, according to defendants' promotion material, can be built and sold to purchasers for a total of $28,195, presumably inclusive of the lot in the subdivision on which the plaintiffs desired the home to be built. However, defendants, through their agents, informed plaintiffs of defendants' 'general policy not to sell houses and lots to Negroes', and in effect 'refused to consider plaintiffs' application to purchase a house and enter into a contract for the sale of a house and lot.'

A substantial portion of the complaint is devoted to allegations concerning defendants' plans and intentions relating to the future development of Paddock Woods. Thus, it is alleged that Paddock Woods includes over 100 'projected' homes, that the opening of more plats in the subdivision is planned, that streets in the subdivision are presently being built by Alfred H. Mayer & Company

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on land it owns (title to which will ultimately be transferred to a board of trustees to be formed by it), so that the 'ultimate result' will be a suburban community of approximately 1,000 people 'living in an area chosen by defendants for development, residing in homes designed and built by defendants, driving on streets build by defendants, playing golf on the nearby eighteen (18) hole golf course built by defendants for the convenience of residents (of this and other nearby subdivisions developed by defendants), and enjoying facilities of the nearby bath and tennis club which defendants plan to open for the exclusive use of the residents of Paddock Woods.'

For the purpose of the motion to dismiss, we assume that but for the color of Mr. Jones' skin, defendants would have sold to plaintiffs the lot they desire and would have built for them thereon the style of home they selected.

Plaintiffs do not contend that every person who offers a home for sale has no right to refuse to sell his property on racially discriminatory grounds. The thrust of their complaint is that the developer of a private subdivision is in a different category, apparently because his activities are business in nature. In their brief filed in opposition to the motion to dismiss, plaintiffs state their theory thusly: 'The basis of the cause of action set forth in Plaintiffs' First Amended Complaint is that Defendants are prevented by federal law from discriminating on the basis of race in refusing to sell lots and houses to negroes in the subdivision they are building in St. Louis County.' Stated otherwise, the issue is whether the willful refusal of an owner of private property who is developing a private subdivision thereon to sell a part of his property to a Negro solely because of race entitles the person so discriminated against, under any presently applicable federal law, either to damages or to a mandatory injunction or both. Under the present state of the law, our answer must be in the negative.

The language of Sections 1981 and 1982, reciting certain rights of citizens of the United States (e.g. to purchase, sell, hold and convey real and personal property and to make and enforce contracts) is broad and general. The legal right to purchase property does not, however, carry with it a corresponding obligation on the part of the owner to enter into a contract of sale against his will.

It is now well settled that these civil rights statutes are directed toward governmental action. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. In Buchanan, it was said, (245 U.S., l.c. 79, 38 S.Ct., l.c. 19.) 'The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.' A long line of cases makes it clear that Section 1983 (which alone of the civil rights statutes, other than the Civil Rights Act of 1964, provides for a right of action) may be resorted to only in situations where state action is involved. It is true, of course, that the concept of 'state action' has been greatly expanded since the early Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, and that it is not limited to state legislation, but state action in some form there must be. And it is equally true that 'what is 'private' action and what is 'state' action is not always easy to determine.' Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373.

Mr. Justice Frankfurter in his concurring opinion in Terry v. Adams, 345 U.S. 461, 473, 73 S.Ct. 809, 815, 97 L.Ed. 1152, stated the concept in this fashion, 'The vital requirement is State responsibility-- that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme by which colored citizens are denied (civil) rights merely because they are colored.'

Even Mr. Justice Douglas, from whose concurring opinions plaintiffs quote at length, is committed to the view that

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'The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.' United States v. Williams, 341 U.S. 70, at 92, 71 S.Ct. 581, at 593, 95 L.Ed. 758. And as recently as March 28, 1966, in United States v. Guest, 86 S.Ct. 1170, the Supreme Court stated that such 'has been the view of the Court from the beginning' and 'it remains the Court's view today.' See also United States v. Price, 86 S.Ct. 1152, decided the same day as Guest.

Plaintiffs' protestations to the contrary, there must be some substantial involvement of the state or one acting under the color of its authority, even though such involvement of the state need not be either exclusive or direct. Involvement, however, there must be. See Wallach v. Cannon, 8 Cir., 357 F.2d 557, 561-562.

We have carefully read all of the forty or more cases cited by plaintiffs in support of their contention that they have a right of action against defendants under the existing civil rights statutes and the federal constitution. We find all such cases clearly distinguishable.

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, involved an effort to judicially enforce in state courts restrictive covenants which operated to prevent the occupancy and purchase of real property by Negroes. The restrictive covenants were contained in private contracts between private persons. The Supreme Court stated, 'It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property.'

In Shelley, as in the other cases to which we have been cited, the key words are 'state action'. The court found the requisite state action in the participation of the state courts in the enforcement of the restrictive covenants. Said the court, 334 U.S., l.c. 19, 68 S.Ct., l.c. 845, 'The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of...

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