Clinard v. City of Winston-Salem

• Decision Date: 02 February 1940
• Docket Number: 754.
• Citation: 6 S.E.2d 867,217 N.C. 119
• Parties: CLINARD et al. v. CITY OF WINSTON-SALEM et al.
• Court: North Carolina Supreme Court

6 S.E.2d 867

217 N.C. 119

CLINARD et al. v. CITY OF WINSTON-SALEM et al.

No. 754.

Supreme Court of North Carolina

February 2, 1940

Civil action to restrain enforcement of zoning ordinance in so far as it inhibits use or occupancy of plaintiffs' property by members of the Negro race.

The facts are not in dispute:

1. On 12 December, 1930, the Board of Aldermen of the City of Winston-Salem adopted a comprehensive zoning ordinance, under authority of Chap. 250, Public Laws of 1923, and provided therein that the City should be divided into a number of zones or districts, with certain regulations and restrictions applicable to the use and occupancy of the property situate in each zone or district.

2. None of these restrictions is questioned in the present action, save and except the following provision in section 10 of the ordinance: "In 'A-1,' 'B-1' and 'C-1' Residence districts, no building or part thereof shall be occupied or used by a person or persons of the Negro race", with certain exceptions not presently pertinent.

3. Section 11 of the ordinance provides: "In 'A-2' 'B-2' and 'C-2' Residence Districts, no building or part thereof shall be occupied or used by a person or persons of the White race", with certain exceptions similar to those contained in the preceding section.

4. It is found as a fact, and not here challenged, that the areas or districts assigned to the different races, for their exclusive use and occupancy, with the designated exceptions are fairly located and equitably apportioned according to the respective percentage of each race as compared with the total population of the City.

5. By amendment to the zoning ordinance adopted 10 March, 1939 changing the boundaries of some of the districts, several houses owned by the plaintiffs on Greenwood Avenue were transferred from one area to another and are now situated in a residential district designated for occupancy or use only by a person or persons of the White race.

6. The plaintiffs are members of the White race, except W. A Kelly, Jr., who is a member of the Negro race. The plaintiffs of the White race have leased their houses on Greenwood Avenue to persons of the Negro race, and W. A. Kelly, Jr., occupies his house as a residence and desires to continue so to use it.

7. Notices to quit, or to vacate, have been issued and served upon the occupants of the premises by the municipal authorities, defendants herein.

This action was instituted 14 June, 1939, to restrain the defendants from enforcing the provisions of the zoning ordinance in the particulars above set out. A temporary restraining order was issued, but upon the return hearing the judge refused to make it permanent. However, upon notice of appeal being given, by consent the original restraining order was continued in force until the matter could be disposed of on the appeal under authority of the Varser Act, Chap. 58, Public Laws 1921.

Elledge & Wells, of Winston-Salem, for plaintiffs, appellants.

Manly, Hendren & Womble and I. E. Carlyle, all of Winston-Salem, for defendants, appellees.

STACY Chief Justice.

The question for decision is whether reciprocal inhibitions of occupancy of residential districts by members of the White and Negro races, fairly apportioned, but admittedly invalid if they stood alone, may be inserted in a general zoning ordinance adopted under authority of Chap. 250, Public Laws of 1923. We think not.

The law will not permit the indirect accomplishment of that which it directly forbids. Glenn v. Com'rs of Durham, 201 N.C. 233, 159 S.E. 439.

The precise question seems to be one of first impression, certainly in this jurisdiction, albeit some of the cases speak of "segregation ordinances" as zoning ordinances, notably City of Richmond v. Deans, 4 Cir., 37 F.2d 712, and Allen v. Oklahoma City, 175 Okl. 421, 52 P.2d 1054. The case of Bowen v. City of Atlanta, 159 Ga. 145, 125 S.E. 199, dealt with a zoning ordinance, but the decision there was rested on authority of a segregation case.

This Court held in 1914 that an ordinance providing for the segregation of the White and Negro races in the City of Winston-Salem was void for want of legislative sanction. State v. Darnell, 166 N.C. 300, 81 S.E. 338, 339, 51 L.R.A.,N.S., 332. The reasoning of the case, like that in some of the others hereafter noticed, went farther than the narrow ground upon which it was decided, and would seem to be helpful here. There, it was said: "Besides, an ordinance of this kind forbids the owner of property to sell or to lease it to whomsoever he sees fit, as well as forbids those who may be desirous of buying or renting property from doing so where they can make the best bargain. Yet this right of disposing of property, the jus disponendi, has always been held one of the inalienable rights incident to the ownership of property, which no statute will be construed as having power to take away. In Bruce v. Strickland, 81 N.C. 267, it is said: 'The jus disponendi is an important element of property, and a vested right protected by the clause in the federal Constitution which declares the obligation of contracts inviolable.' *** This ordinance forbids a white man or a colored man to live in his own house if it should descend to him by inheritance, and should happen to be located on a street where the majority of the residents happen to be of such different race. *** We therefore hold that the ordinance was adopted without authority of law." Nothing was said in Berry v. Durham, 186 N.C. 421, 119 S.E. 748, which was intended to delimit the adumbrations of the Darnell case.

It is conceded that the question posed by the record is one arising under the Federal Constitution and is to be determined by the implications of the decisions of the court of last resort in the absence of a direct holding on the subject.

In 1917 the Supreme Court of the United States had before it an ordinance of the City of Louisville, Ky., which forbade persons of one color "to move into and occupy as a residence" a house in any block in which a majority of houses were already occupied by persons of the other color. This ordinance was held to be void in an action brought by a white man against a colored man for specific performance of contract to purchase a lot in a block where a majority of the residences were...