379 F.2d 33 (8th Cir. 1967), 18473, Jones v. Alfred H. Mayer Co.

Docket Nº:18473.
Citation:379 F.2d 33
Party Name:Joseph Lee JONES and Barbara Jo Jones, Appellants, 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, Appellees.
Case Date:June 26, 1967
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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379 F.2d 33 (8th Cir. 1967)

Joseph Lee JONES and Barbara Jo Jones, Appellants,


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, Appellees.

No. 18473.

United States Court of Appeals, Eighth Circuit.

June 26, 1967

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Samuel H. Liberman, II, St. Louis, Mo., for appellants; Arthur A. Leff, St. Louis, Mo., on the brief.

Israel Treiman of Shifrin, Treiman, Schermer & Susman, St. Louis, Mo., for appellees.

Sol Rabkin and Joseph B. Robison, New York City, filed brief amicus curiae for National Committee Against Discrimination in Housing.

Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.

BLACKMUN, Circuit Judge.

This case comes close to raising nakedly the question whether, in the absence of federal and state open housing legislation, an owner of a home, which is on the market for sale, may refuse to sell that home to a willing purchaser merely because that purchaser is a Negro. The district court has phrased the sensitive issue, in the case's factual context, as follows:

'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.'

The case is here by way of an appeal by the plaintiffs from the dismissal of their complaint for failure to state a cause of action. Judge Regan's comprehensive memorandum is reported as Jones v. Alfred H. Mayer Co., 255 F.Supp. 115 (E.D.Mo.1966). We are favored with helpful briefs by the parties and by the National Committee Against Discrimination in Housing which, as amicus curiae, urges reversal particularly in the light of the Civil Rights Act of 1866 and its present codification as 42 U.S.C. § 1982. Jurisdiction is established under 28 U.S.C. § 1343(3) and (4).

A. The Facts. Because the motion to dismiss was granted, the facts, so far as this appeal is concerned, are

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those well pleaded in the complaint. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Jenson v. Olson, 353 F.2d 825, 828 (8 Cir. 1965); Bonnot v. Congress of Independent Unions, 331 F.2d 355 (8 Cir. 1964); McCleneghan v. Union Stock Yards Co., 298 F.2d 659, 662-663 (8 Cir. 1962).

The plaintiffs, Joseph Lee Jones and Barbara Jo Jones, are husband and wife. Joseph Lee Jones is a Negro. Both are federal employees and Missouri citizens. The defendants, four in number, are Alfred H. Mayer Company, a corporation engaged in the business of developing subdivisions in Saint Louis County, Missouri, and of constructing homes to be sold to the public; Alfred Realth Co., a Missouri licensed 1 corporate real estate broker acting as the exclusive sales agent for Mayer houses; Alfred H. Mayer who owns the controlling interest in both corporations, who is their managing officer, and who also is licensed by Missouri as a real estate salesman; and Paddock Country Club, Inc., a corporation controlled by the other defendants 'for the primary use and benefit of the people in' Paddock Woods, a subdivision which the defendants are presently developing.

In June 1965 plaintiffs were looking for a new home and, in consequence of an advertisement in the St. Louis Post-dispatch, went to Paddock Woods, picked up a brochure describing the development there, and inspected display homes on the site. They determined that a certain style of house suited their needs and resources and was reasonably accessible to their places of employment. According to the defendants' promotional material this house could be built and sold for $28,195. The plaintiffs selected a lot as their first choice among those available in the subdivision. The defendants, through their agents, 'refused to consider Plaintiffs' application to purchase a house and to enter into a contract for the sale of a house and lot, because Joseph Lee Jones is a Negro, and it is Defendants' general policy not to sell said houses and lots to Negroes'.

The complaint also recites: Paddock Woods includes more than 100 projected homes, with more plats to be opened. The ultimate result will be a suburban community of about a thousand people 'living in an area chosen by Defendants for development, residing in homes designed and built by Defendants, Driving on streets built by Defendants, playing golf on the nearby eighteen (18) hole course built by Defendants for the convenience of residents of (this and other nearby subdivisions developed by Defendants), and enjoying the facilities of the nearby bath and tennis club which Defendants plan to open * * * for the exclusive use of residents of Paddock Woods'.

The complaint further alleges state and municipal involvement by the Missouri incorporation of the three corporate defendants; the protection afforded the defendants 'by various state laws and local ordinances, in particular zoning codes, building codes, banking and lending laws, and numerous laws effecting the transfer and development of real property'; the approval of plans by the county building commissioner; the furnishing of sewer service by the metropolitan district; the responsibility of the planning commission for zoning; the county recording of transfers and restrictions; the availability of the traffic and highway departments and the county engineer; the education of children in a tax supported school district; and the furnishing of electric and gas services by state licensed utilities. It is also alleged that Paddock Woods is 'enlarged' by the defendants' other nearby developments 'all of which are financed by loans insured by the Federal Housing Administration'.

There is no allegation of federal or state monetary assistance in the development of the Paddock Woods subdivision. The amicus brief states flatly that 'it is conceded for this appeal that defendants

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have not accepted any form of direct state or federal aid or financing which might have subjected them to federal statutes or executive orders or constitutional provisions which bar recipients from engaging in discrimination based on race in using the benefits of such aid in their project'.

The prayer asks for $50 ordinary damages, $10,000 punitive damages, and injunctive relief.

It is against these facts that the defendants' motion to dismiss was filed.

B. The Grounds Asserted. The complaint alleges violation of rights under the Civil Rights Acts of 1866, 1870 and 1871, from which 42 U.S.C. §§ 1982, 1981, and 1983, are respectively derived; under §§ 201 to 207 of the Civil Rights Act of 1964, 42 U.S.C. § 2000a to 2000a-6, relating to public accommodations; under Executive Order No. 11063, entitled 'Equal Opportunity in Housing', 27 F.R. 11527 (1962); under the Thirteenth and Fourteenth Amendments; and under the enabling clause of Article I, § 8, and the supremacy clause of Article VI of the Constitution. The 1964 Act and the Executive Order, however, are not urged on the appeal. 2

The plaintiffs argue (1) that the complaint states facts which constitute a violation of rights, guaranteed to them by § 1982, to purchase property without discrimination; (2) that § 1982 is valid and applicable whether or not 'state action' is involved; and (3) that, in any event, the discrimination suffered by the plaintiffs results from state action. The amicus argues similarly, stresses that § 1982 is applicable here without regard to the presence of any indicia of state action, and relies particularly on the legislative history. It urges that there is an 'imperative need for speedy federal action to help break down the walls of housing prejudice'; that the use of federal and state power 'cannot wait for a reluctant Congress'; that 'Builders of white suburban communities must not be allowed to spread the plague of housing segregation'; and that 'since 1866 there has been federal legislation which bars racial discrimination in the sale or lease of real property'. The amicus views the issue of the applicability here of § 1982 as 'a novel issue, never before presented to the federal courts'. 3

The appeal, thus, pivots primarily on § 1982.

The defendants, in response, claim that the plaintiffs, in order to make a case under the section, must show that state action is present and that the facts alleged do not constitute conduct involving state action.

C. The Statutes. These read:

'§ 1982. Property rights of citizens

'All citizens 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. '§ 1981. Equal rights under the law

'All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. '§ 1983. Civil action for deprivation of rights

'Every person who, under color of any statute, ordinance, regulation, custom,

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or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an...

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