Massachusetts Commission Against Discrimination v. Colangelo

• Decision Date: 16 May 1962
• Citation: 344 Mass. 387,182 N.E.2d 595
• Parties: MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. v. A. J. COLANGELO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 595

182 N.E.2d 595

344 Mass. 387

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. v. A. J. COLANGELO et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 4, 1962.

Decided May 16, 1962.

Edward J. McCormack, Jr., Atty. Gen., Albert M. Sacks, Sp. Asst. Atty. Gen., and Gerald A. Berlin, Asst. Atty. Gen., for Massachusetts Commission Against Discrimination.

Edward J. Barshak, Boston, for Fowler.

Walter H. McLaughlin, Boston (Walter H. McLaughlin, Jr., and Arthur M. Gilman, Boston, with him), for Nahigian.

Richard C. Evarts, Boston (J. Laurence McCarty, Boston, with him), for Colangelo.

Laurence S. Locke and Norman Landstrom, Boston, by leave of court, submitted a brief as amici curiae.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

WILKINS, Chief Justice.

The petitioner commission, established pursuant to G.L. c. 6 § 56 (as amended through St.1951, c. 588), brings this petition to enforce an order the commission entered against the respondents, Colangelo and Nahigian, respectively the owner and rental agent of a new 120-unit apartment building ¹ in Waltham known as Glenmeadow Apartments. G.L. c. 151B, § 6, as amended through St.1957, c. 426, § 5. The premises are privately financed, with no governmental guaranty, insurance, or other public assistance. The case is reported without decision by a judge of the Superior Court for our determination upon the pleadings, a statement of agreed facts, and a transcript of the hearing before the commission. G.L.(Ter.Ed.) c. 214, § 31.

Maurice Fowler, the complainant in proceedings before the commission under G.L. c. 151B, § 5 (as amended through St.1957, c. 426, § 4; see now St.1961, c. 570), has been allowed to intervene as a party petitioner. He is a Negro employed as a contract negotiator for the Electronics System Center of the United States Air Force located at Waltham, and is seeking to rent one of the apartments at the advertised rental of $145 a month. On July 20, 1960, he filed a written complaint with the commission charging the respondents with unlawful discriminatory practices. The commission conducted a preliminary investigation, followed by an unsuccessful attempt at conference, conciliation, and persuasion. After a formal hearing under § 5 the commission found that the respondents had engaged in unlawful discriminatory practices as defined in § 4, as amended, in refusing to rent an apartment to Fowler because of his color. Other findings were that he had obtained comparable accommodations in Cambridge at $175 a month. The commission also entered an order which, among other things, directed the respondents to make an apartment available to Fowler, to compensate him for the damages suffered because of the discrimination, and to cease discrimination in renting apartments.

The statutory provisions pertinent to the case at bar are G.L. c. 151B, § 4, inserted by St.1946, c. 368, § 4 (as amended through St.1959, c. 239, § 2) ²: 'It shall be an unlawful practice: * * * [subsection] 6. For the owner, lessee, sublessee, assignee or managing agent of publicly assisted or multiple dwelling or contiguously located housing accommodations or other person having the right of ownership or possession or right to rent or lease such accommodations:--(a) to refuse to rent or lease or otherwise to deny to or withhold from any person or group of persons such accommodations because of the race, creed, color or national origin of such person or persons; (b) to discriminate against any person because of his race, creed, color or national origin in the terms, conditions or privileges of such accommodations or in the furnishing of facilities or services in connection therewith * * *.'

In c. 151B, § 1, cl. 11, inserted by St.1957, c. 426, § 1, we read the definition, 'The term 'multiple dwelling' means a dwelling which is usually occupied for permanent residence purposes and which is either rented, leased, let or hired out, to be occupied as the residence or home of three or more families living independently of each other. * * *'

The principal reliance of each respondent is upon constitutional objections to these statutory provisions. Before trying to analyze those objections certain general principles should be clearly noted. 'It is only when a legislative finding cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it that a court is empowered to strike it down. * * * If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.' Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138-139, 85 N.E.2d 232, 237, and cases cited. Wright v. City of Peabody, 331 Mass. 161, 164, 118 N.E.2d 68. Commonwealth v. Chamberlain, 342 Mass. ----, 175 N.E.2d 486. ³ Only one whose rights are impaired by a statute can raise the question of its constitutionality, and he can object to the statute only as applied to him. Commonwealth v. Brown, 302 Mass. 523, 526, 20 N.E.2d 478, app. dism. 308 U.S. 504, 60 S.Ct. 96, 84 L.Ed. 432. Kaplan v. Bowker, 333 Mass. 455, 459-461, 131 N.E.2d 372. Silverman v. Board of Registration in Optometry, Mass., 181 N.E.2d 540. ⁴ Yazoo & Miss. Valley R. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 33 S.Ct. 40, 57 L.Ed. 193. Gorieb v. Fox, 274 U.S. 603, 606, 47 S.Ct. 675, 71 L.Ed. 1228. United States v. Raines, 362 U.S. 17, 20-24, 80 S.Ct. 519, 4 L.Ed.2d 524. See Broadhurst v. City of Fall River, 278 Mass. 167, 170, 179 N.E. 586. The burden of overcoming the presumption of constitutionality is not sustained by generalities whether of law or fact. Specific allegations are required. Merit Oil Co. v. Director of Div. on Necessaries of Life, 319 Mass. 301, 305, 65 N.E.2d 529. Commonwealth v. Chamberlain, supra, 175 N.E.2d 486. ⁵

In attacking the statutory provision quoted above prohibiting discrimination because of 'race, creed, color or national origin' in renting or leasing accommodations in multiple dwellings as there defined, the respondent Colangelo relies upon the due process clause of the Fourteenth Amendment to the Constitution of the United States and arts. 1 and 10 of the Declaration of Rights in the Constitution of this Commonwealth. He contends that there has been as invasion of his right of 'acquiring, possessing, and protecting property,' and of his right of liberty of contract, and that there has been an appropriation of his property without compensation. The respondent Nahigian claims infringements on his freedom to contract with persons he chooses, on his 'freedom of association,' and on his 'freedom from coercion,' basing his claims upon art. 1 of the Declaration of Rights and on Part II, c. 1, § 1, art. 4, of the Constitution of this Commonwealth. He also cites arts. 10 and 12 of the Declaration of Rights and the Fourteenth Amendment to the Constitution of the United States.

1. Several contentions may be briefly disposed of. A suggestion of the respondent Colangelo is that there has been a taking of his property without compensation in violation of art. 10 of the Declaration of Rights. No attempt has been made to allege or prove specific damage or reduction in property value. All that this respondent says is that the 'freedom of the owner to exercise his own judgment in the sale or rental of his property is the most important attribute of ownership,' and that to the extent that St.1959, c. 239, takes that right there has been a confiscation of an interest in property by the State. Clearly there has been no taking of property in a constitutional sense. Commonwealth v. Alger, 7 Cush. 53, 84-88. Locatelli v. City of Medford, 287 Mass. 560, 192 N.E. 57, cert. den. 294 U.S. 727, 55 S.Ct. 636, 79 L.Ed. 1257. Opinion of the Justices to the Senate, 333 Mass. 773, 777, 128 N.E.2d 557.

The respondent Nahigian is in no position to contend that there has been an infringement of his freedom of association. Whatever may be said of the right of a home owner freely to choose his neighbors or to rent only to persons of his own choice, Nahigian is merely the rental agent of a 120-unit apartment house. He is not being compelled to live near anyone by the commission's order, and he lacks standing to raise the rights of others. In answer to his argument that there has been an interference with his right to freedom from coercion, we need only indicate that in running his realty business, he is not exempt from State regulation. See, for example, G.L. c. 112, §§ 87PP-87DDD (inserted by St.1957, c. 726, § 2), as amended. See also Seaman v. Zoning Bd. of Appeals of Holliston, 340 Mass. 488, 489, 165 N.E.2d 97; Ranke v. Corporation & Sec. Comm., 317 Mich. 304, 310, 26 N.E.2d 898; Roman v. Lobe, 243 N.Y. 51, 54-57, 152 N.E. 461, 50 A.L.R. 1329; Payne v. Volkman, 183 Wis. 412, 419, 198 N.W. 438. Two cases relied upon are of no material bearing. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, dealing with the free exercise of one's religion, and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, concerning State compelled affirmations of belief, do not give the respondent an absolute constitutional right to implement his beliefs or prejudices by any conduct he chooses.

2. The major argument of the respondent Colangelo, as it appears to us, is that there has been an invasion of his rights in property and of his right of liberty to contract in violation of Part II, c. 1, § 1, art. 4, of the Constitution of this Commonwealth. This provision confers upon the General Court 'full power and authority * * * to make, ordain, and establish, all manner of wholesome and reasonable * * * laws, statutes * * * so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof * * *.' Article 1 of the Declaration of Rights defines as one of...