Burks v. Poppy Const. Co.

• Decision Date: 26 March 1962
• Docket Number: S.F. 20809
• Citation: 57 Cal.2d 463,370 P.2d 313,20 Cal.Rptr. 609
• Parties: , 370 P.2d 313 Seaborn BURKS, Jr. et al., Plaintiffs and Appellants, v. POPPY CONSTRUCTION COMPANY et al., Defendants and Respondents.
• Court: California Supreme Court

Page 609

20 Cal.Rptr. 609

57 Cal.2d 463, 370 P.2d 313

Seaborn BURKS, Jr. et al., Plaintiffs and Appellants, v. POPPY CONSTRUCTION COMPANY et al., Defendants and Respondents.

S.F. 20809.

Supreme Court of California, In Bank.

March 26, 1962.

Marshall W. Krause, San Francisco, for plaintiffs and appellants.

Charles F. Jonas, Lemuel H. Matthews and Fred G. Meis, San Francisco, for defendants and respondents.

GIBSON, Chief Justice.

Plaintiffs, members of the Negro race, brought this action for damages and injunctive relief alleging discrimination with respect to the sale of a house in a tract. The first cause of action is based on the Unruh Civil Rights Act (Civ.Code, §§ 51 and 52, as amended in 1959), which deals with discrimination in 'business establishments,' and the second is based on the Hawkins Act (Health & Saf.Code, §§ 35700-35741, added in 1959) which relates to discrimination in 'publicly assisted housing accommodations.' ¹ Both acts were passed at the 1959 legislative session.

A general demurrer filed by defendants, Poppy Construction Company and its employee, Sherman Cornblum, was sustained without leave to amend as to the first cause of action and with leave to amend as to the second cause of action. ² Plaintiffs did not amend, and judgment was entered for defendants.

First Cause of Action--Unruh Act

The allegations of the first cause of action may be summarized as follows: Plaintiffs are husband and wife and members of the Negro race. At the times involved here defendant Poppy Construction Company was engaged in the business of developing, building, and selling a tract of housing accommodations, and defendant Cornblum was its employee. Defendants operated business establishments in California for the sale of houses in the tract and offered them for sale to the public by advertising and displaying a model home. In December of 1959 plaintiffs, who were willing and able to purchase housing in the tract, offered to purchase the house at 338 Marietta Drive, San Francisco, or any other house in the tract offered to the public generally for $27,950. Defendants maintained a policy and practice of refusing to sell housing in the tract to Negroes and, because of plaintiffs' race and color, defendants refused to sell any house in the tract to plaintiffs upon conditions offered to non-Negroes. Unless relief is granted, plaintiffs will suffer irreparable injury because the houses in the tract will be sold to others. Plaintiffs seek to recover damages and, further, ask that defendants be enjoined from discriminating against them and persons similarly situated.

The Unruh Act provides in part: 'All persons within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.' (Civ.Code, § 51.) Section 52 of the Civil Code provides that whoever denies these rights, or aids or incites such a denial, is liable for each offense for actual damages and, in addition, $250.

The Legislature used the words 'all' and 'of every kind whatsoever' in referring to business establishments covered by the Unruh Act (Civ.Code, § 51), and the inclusion of these words, without any exception and without specification of particular kinds of enterprises, leaves no doubt that the term 'business establishments' was used in the broadest sense reasonably possible. The word 'business' embraces everything about which one can be employed, and it is often synonymous with 'calling, occupation, or trade, engaged in for the purpose of obtaining a livelihood or gain.' (See Mansfield v. Hyde, 112 Cal.App.2d 133, 137, 245 P.2d 577, 581; 5 Words and Phrases, Business, p. 970 et seq. (1940).) The word 'establishment,' as broadly defined, includes not only a fixed location, such as the 'place where one is permanently fixed for residence or business,' but also a permanent 'commercial force or organization' or 'a permanent settled position (as in life or business).' (See Webster's New Internat. Dict. (2d ed. 1957) p. 874; id. (3rd ed. 1961) p. 778.) It is clear that defendants operated 'business establishments' within the meaning of the term as used in the Unruh Act.

The original version of the bill which was presented to the Legislature, in addition to affording protection in 'business establishments,' referred specifically to the right 'to purchase real property' and to other rights, such as the obtaining of 'professional' services. Section 51, as enacted in 1959, eliminated all such specific references. ³ (For the various versions of the bill see Horowitz, California Equal Rights Statute (1960) 33 So.Cal.L.Rev. 260, 265-270.) These deletions can be explained on the ground that the Legislature deemed specific references mere surplusage, unnecessary in view of the broad language of the act as finally passed. (Cf. Western Union Tel. Co. v. Lenroot, 323 U.S. 490, 501, 65 S.Ct. 335, 89 L.Ed. 414; Radin, A Case Study in Statutory Interpretation (1945) 33 Cal.L.Rev. 219, 224.) It should be noted in this connection that in the original bill the general term 'business establishments' was not, as now, followed by the words 'of every kind whatsoever' and that those words were added in the draft that deleted the specific reference to the purchase of real property.

There is no merit to defendants' contention that the adoption of the Hawkins Act at the same session of the Legislature in which the Unruh Act was passed shows an intent that the Hawkins Act is to be the sole measure relating to discrimination with respect to real property transactions. Although the operation of the two statutes overlaps in some particulars, their provisions differ in essential respects. ⁴ The Unruh Act relates only to discriminatory practices in 'business establishments.' The Hawkins Act is confined to discrimination by an 'owner' of a 'publicly assisted housing accommodation' with knowledge of such assistance. Some transactions, even though not involving 'business establishments' within the meaning of the Unruh Act, would nevertheless come within the terms of the Hawkins Act. Other transactions which are within the Unruh Act because they involve business establishments may not involve a 'publicly assisted housing accommodation' as defined in the Hawkins Act. The two statutes also provide for different measures of recovery, namely, damages caused in a sum not less than $500 under the Hawkins Act and actual damages plus $250 under the Unruh Act.

A court must, where reasonably possible, harmonize statutes and construe them so as to give force and effect to all their provisions. Both statutes are designed to discourage discrimination, and it would be unreasonable to hold that the provisions of the Hawkins Act, relating to only part of the housing field, reflect an intent to exclude from the Unruh Act all discriminatory practices with respect to housing, including those that clearly come within the terms of the Unruh Act but are not covered by the provisions of the Hawkins Act. Even as to a case appearing to come within both enactments, we cannot properly hold that the sections of the Hawkins Act were intended to exclude all operation of the Unruh Act without regard to the circumstances. Of course, a plaintiff should not be permitted to recover under both acts and obtain double damages for the same discriminatory conduct, but he may proceed to trial on alternative causes of action if they are properly pleaded.

Although the Unruh Act makes no express provision for injunctive relief, that remedy as well as damages may be available to an aggrieved person. Former sections 53 and 54 of the Civil Code, replaced by the Unruh Act, were also civil rights statutes, and the fact that they provided only for damages did not exclude injunctive relief. (Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 113-114, 180 P.2d 321, 171 A.L.R. 913.) And a person whose civil rights are invaded as a result of discrimination against a group on the basis of race or ancestry may bring an action for injunctive relief on behalf of all members of the group similarly situated. (Williams v. International, etc. of Boilermakers, 27 Cal.2d 586, 594, 165 P.2d 903; James v. Marinship Corp., 25 Cal.2d 721, 724-725, 745, 155 P.2d 329, 160 A.L.R. 900; Banks v. Housing Authority, 120 Cal.App.2d 1, 23, 260 P.2d 668; Brown v. Board of Education, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873; Sharp v. Lucky, 5 Cir., 252 F.2d 910, 913.)

Discrimination on the basis of race or color is contrary to the public policy of the United States and of this state. Although the antidiscrimination provisions of the federal Constitution relate to state rather than private action, they nevertheless evidence a definite national policy against discrimination. (James v. Marinship Corp., 25 Cal.2d 721, 739-740, 155 P.2d 329, 160 A.L.R. 900.) The Legislature in the exercise of the police power may in appropriate circumstances prohibit private persons or organizations from violating this policy. Thus in Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94, 65 S.Ct. 1483, 89 L.Ed. 2072, a New York statute which prohibited labor organizations from discriminating in membership or union services was upheld against the contention that it violated the due process clause as an interference with the right of the organization to select its membership and as an abridgment of its property rights and liberty of contract.

For more than 50 years prior to the enactment of the Unruh Act, sections 51 and 52 of the Civil Code contained provisions prohibiting discrimination in places of 'public accommodation and amusement.' The constitutionality of this legislation was upheld in Piluso v. Spencer (1918), 36 Cal.App. 416, 419, 172 P. 412, and there is no valid reason why the extension of the prohibition against discrimination to 'all...