Banks v. Housing Authority of City and County of San Francisco

• Decision Date: 26 August 1953
• Citation: 260 P.2d 668,120 Cal.App.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: BANKS et al. v. HOUSING AUTHORITY OF CITY AND COUNTY OF SAN FRANCISCO et al. Civ. 15693.

Page 668

260 P.2d 668

120 Cal.App.2d 1

BANKS et al. v. HOUSING AUTHORITY OF CITY AND COUNTY OF SAN FRANCISCO et al.

Civ. 15693.

District Court of Appeal, First District, Division 1, California.

Aug. 26, 1953.

Rehearing Denied Sept. 25, 1953.

Hearing Denied Oct. 22, 1953.

Roth & Bahrs, San Francisco, for appellants.

Francois & Metoyer, San Francisco, Nathaniel S. Colley, Sacramento, Loren Miller, Los Angeles, for respondents.

FRED B. WOOD, Justice.

The Housing Authority of the City and County of San Francisco, its members, and its executive director, have appealed from a judgment which ordered the issuance of a peremptory writ of mandate requiring them '1. To certify forthwith petitioners, Mattie Banks and James Charley, Jr., for admission to any units in any permanent public low rent housing development under respondents' ownership and control, subject only to the same rules, regulations, and preferences applicable to other applicants, and without regard to race or color; 2. To institute forthwith a policy and practice of applying the same set of standards in determining eligibility to all applicants for permanent public low rent housing developments and without regard to race or color; 3. To institute forthwith a policy and practice of processing the applications of petitioners and other Negro applicants as expeditiously as all other applications for permanent low rent housing accommodations are processed; 4. To institute forthwith a policy and practice of recognizing the preferences as set forth in Section 302 of the Housing Act of 1949; ¹ 5. To institute forthwith a practice, program, and policy of admitting all qualified applicants to any and all available units in any and all permanent public low rent housing developments under respondents' management and control subject only to the rules and regulations applicable to all applicants alike and without regard to race or color.'

The judgment also decreed that 'the policy, custom, practice, and usage of respondents in refusing to lease or rent to petitioners, to other persons of Negro descent, or to any other applicant because of the race or color of such applicant, units in certain permanent low rent housing developments under the ownership and control of said respondents, whether it be pursuant to the so-called 'neighborhood pattern' policy or for any reason whatsoever, is hereby declared to be illegal and void and in violation of the equal protection clause of the 14th Amendment to the Constitution of the United States and contrary to the public policy of the State of California, and the City and County of San Francisco.'

The 'neighborhood pattern policy' mentioned was declared in a resolution adopted by the housing authority May 28, 1942, expressed in these words: '1. In the development of its program and the selection of its tenants this Authority shall provide housing accommodations for all races in the proportion which the number of low income families otherwise unable to obtain decent, safe and sanitary dwellings in each racial group, bears to one another. 2. In the selection of tenants for the projects of this Authority, this Authority shall act with reference to the established usages, customs and traditions of the community and with a view to the preservation of public peace and good order and shall not insofar as possible enforce the commingling of races, but shall insofar as possible maintain and preserve the same racial composition which exists in the neighborhood where a project is located.'

February 24, 1950, appellants entered into an agreement with the city and county of San Francisco whereby these proportionate needs and neighborhood pattern policies were abrogated to the extent of making them inapplicable to projects initiated subsequent to July 15, 1949. As to such projects the agreement provides that the housing authority 'shall avoid or refrain from any policy or practice which results, directly or indirectly, in discrimination or any form of segregation by reason of race, color, religion, national origin or ancestry.' But the agreement also provides in effect that the proportionate needs and neighborhood pattern policies shall continue in full force and effect as to projects initiated prior to July 15, 1949. Thus, it appears that these policies continue to apply to the projects known as Holly Courts, Potrero Terrace, Sunnydale, Valencia Gardens, Westside Courts, North Beach Place, and Ping Yuen.

E. N. Ayer, chairman of the housing authority, testified that the neighborhood pattern policy was intended to localize occupancy of Negroes and other racial groups in certain projects; that in accordance with this policy Westside Courts was for the occupancy of Negroes and that no Negro whether a veteran or non-veteran, regardless of his qualifications and priorities, would be admitted to the North Beach project, nor to any of the above named projects except Westside Courts.

John W. Beard, executive officer of the housing authority, testified that each of the projects named is a permanent low rent housing project available only to low income families, under federal and state laws. Among such families there are certain preferences. Families displaced by a project have the first preference. Among them, families of disabled veterans come first, those of veterans and servicemen come next, and finally the remaining displaced families. Next come low income families not displaced by the project. Among them the same priorities obtain; i. e., families of disabled veterans come first and those of veterans and servicemen second. When other factors are equal, families of the lowest income and in greatest need of better housing are preferred. Residence in San Francisco is a pre-requisite in all cases. The time of filing an application is not a factor in determining the indicated preferences.

Beard further testified that on September 19, 1952, there were no Negro occupants of any of the projects above named except Westside Courts which had 136 Negro tenants and no white tenants. He said that 'the racial contents in these projects is the result of the program passed by the Housing Commission [Corporation]'. The housing authority instructed Beard that they were to be occupied by white families. As to projects thus indicated for occupany by white families, if a Negro who had a preference (such as a disabled veteran who had been displaced by the construction of the project) were to apply, he would not be admitted because of his not being a white person. The instruction given Beard by the housing authority concerning Westside Courts was for dominantly Negro occupancy, permitting up to 20 white occupancies. Ping Yuen was wholly occupied by Chinese. A white person otherwise qualified would be deemed acceptable for admission to any of the named projects except Westside Courts and Ping Yuen. If a Negro, he would be considered only for Westside Courts.

These seven projects, already constructed and occupied or ready for occupancy, provide 2016 family units, of which Westside Courts has 136 and Ping Yuen 174 units. Additional projects under construction would provide 713 additional units and there were projects in the preconstruction stage which would provide 1,892 additional units. There were in contemplation projects which would provide a total of 5,826 dwelling units. ²

Beard further stated that a survey had been made upon the basis of which it was estimated that of the families potentially eligible for admission to low rent housing projects, 70% are white and 30% are non-white. The latter group includes Chinese and other races but consists substantially of Negroes. He said it is contemplated that when the projects yet to be built are completed the dwelling units will be so distributed among white and non-white families that 70% of them will be occupied by white and 30% by non-white families.

Appellants put in evidence an exhibit dated March 20, 1952, entitled 'Overall Program for Local Authority,' which indicates that at the time of its preparation the appellant housing authority had active projects totalling 1741 dwelling units occupied by 1,600 white and 141 non-white families; deferred projects totalling 1,142 units, to be occupied by 711 white and 431 non-white families; and projects 'under Program Reservation' totalling 2,973 units, to be occupied by 1,784 white and 1,189 non-white families. This exhibit contains an estimate that when the entire program is completed there will be 5,856 dwelling units occupied by 4,095 white and 1,761 non-white families, respectively, or 70% white and 30% non-white.

Thus, appellants' claim, the proportionate needs and neighborhood pattern policies will ultimately provide low rent housing accommodations for potentially eligible white and non-white families in the very propertion (70% and 30%) which a survey made in 1950 indicates in fact obtains in the city and county of San Francisco. That survey, according to this same exhibit, shows that 23,202 families occupy substandard dwelling units, of whom 16,303 (70%) are white and 6,899 (30%) are non-white.

In support of their appeal, appellants claim: (1) There is no constitutional inhibition against segregation by races 'if the facilities offered or the protection afforded are separate but equal,' and that their proportionate needs and neighborhood pattern policies satisfy this requirement; (2) the public policy of this state does not make segregation per se unlawful; (3) the public policy of the city and county of San Francisco does not forbid the segregation here involved; (4) the evidence does not support the finding that petitioners Mattie Banks and James Charley, Jr., are eligible for housing accommodations, and the trial court had no right to substitute its judgment for that of appellant housing authority on that issue; (5) there was a lack of indispensable parties to this action; (6) this is not a representative suit; (7) mandamus is not the...