Monk v. City of Birmingham

• Decision Date: 16 December 1949
• Docket Number: Civ. A. No. 6382.
• Citation: 87 F. Supp. 538
• Parties: MONK et al. v. CITY OF BIRMINGHAM et al.
• Court: U.S. District Court — Northern District of Alabama

87 F. Supp. 538

MONK et al. v. CITY OF BIRMINGHAM et al.

Civ. A. No. 6382.

United States District Court N. D. Alabama, S. D.

December 16, 1949.

Arthur D. Shores, Birmingham, Ala., Peter A. Hall, and David H. Hood, Jr., Birmingham, Ala., and Thurgood Marshall, New York City, for plaintiffs.

James Houston Willis, City Attorney, Thos. E. Huey, Jr., Asst. City Attorney, and Horace C. Wilkinson, Special Attorney, Birmingham, Ala., for defendants.

MULLINS, Chief Judge.

This is a class action brought by the plaintiffs, who are Negro citizens of the City of Birmingham, for and on behalf of themselves and all other Negro citizens of said City who are similarly situated and who own real estate in said City that is affected by certain zoning ordinances of said City. The zoning provisions involved are Sections 1604 and 1605 of the General City Code of Birmingham, 1944, and Ordinance No. 709-F. For convenience these code sections and ordinance may hereafter be referred to merely as zoning ordinances. The plaintiffs seek to declare said zoning ordinances unconstitutional as being in violation of the Fourteenth Amendment to the Constitution of the United States, and seek injunctive relief against the further enforcement of the same. The defendants are the City of Birmingham, a municipal corporation, James W. Morgan, one of its city commissioners, and H. E. Hagood, its building inspector.

The two code sections constitute provisions of the general comprehensive zoning ordinance of the City of Birmingham adopted in 1926. With exceptions not here material, Section 1604 provides that no building or part thereof in certain residence districts shall be occupied or used by persons of the Negro Race; Section 1605 provides that no building or part thereof in certain other residence districts shall be occupied or used by persons of the white race. Ordinance 709-F, adopted on the 9th day of August, 1949, is in its nature supplemental to said code sections. This ordinance provides that it shall be a misdemeanor for a member of the white race to move into, for the purpose of establishing a permanent residence, or having moved into, to continue to reside in an area in the City of Birmingham generally and historically recognized at the time as an area for occupancy by members of the colored race, and likewise makes it a misdemeanor for a member of the colored race to move into, for the purpose of establishing a permanent residence, or having moved into, to continue to reside in an area in the City of Birmingham generally and historically recognized at the time as an area for occupancy by members of the white race. "Permanent residence," as defined in said ordinance, means the occupancy of a house or tenement for more than 24 hours. It is provided that the moving into for the purpose of establishing a permanent residence shall constitute a separate offense from remaining there, and that remaining in residence in a forbidden area for each 24 hour period shall constitute a separate offense. This ordinance also provides that the zoning ordinances of the City of Birmingham in effect at the time of its passage "substantially and fairly well delineate those areas historically and generally regarded as available for residences and occupation by members of the white and colored races."

Under the provisions of Sections 4 and 1600 of the defendant City's code, it is a criminal offense subject to fine and imprisonment, to violate any of the provisions of said code sections 1604 and 1605 and ordinance 709-F.

This Court takes judicial notice of the ordinances of the City of Birmingham. Title 7, Section 429(1), Code of Alabama 1940, as amended June 18, 1943.

The plaintiffs aver that they own certain real property in the City of Birmingham that is affected by and subject to the provisions of said zoning ordinances, the particular real property owned by each of said plaintiffs being particularly described opposite his or her name in paragraph 4 of the complaint. They further aver that sections 1604 and 1605 of said code and ordinance 709-F deny to plaintiffs, and others similarly situated, the right to occupy, enjoy and dispose of their property, in violation of the Fourteenth Amendment to the Constitution of the United States. The plaintiffs contend that said zoning ordinances are void as violative of the Fourteenth Amendment, because their right to use and occupy their properties is denied to them under the provisions of said ordinances solely on the basis of race or color; and plaintiffs aver that, unless they can obtain relief from this Court, the present zoning and classification of said property is tantamount to its confiscation. They aver that they are threatened with irreparable injury in the future and have no plain or adequate remedy at law other than by a declaration of rights and a temporary and permanent injunction against the further enforcement of said ordinances.

The complaint and the proof show and actual justiciable controversy existing between the plaintiffs and the defendants and that this is a proper class action.

The case was tried to the Court without a jury on oral testimony, written exhibits and certain stipulations of the parties, and after oral argument was duly submitted. Upon the evidence offered, the Court finds that each of the plaintiffs owns the particular real estate described opposite his or her name, as set out and described in paragraph 4 of the complaint; that each of the plaintiffs purchased said property prior to the filing of this suit for the purpose of using or occupying the same for residential purposes; that the property of each of the plaintiffs is affected by and subject to the provisions of said zoning ordinances and that neither the plaintiffs nor other members of the Negro race will be permitted to occupy said property as a home or for dwelling purposes solely because they are Negroes, all of said property being restricted to white residential use under the provisions of said ordinances.

The Court further finds that none of the plaintiffs will be permitted by said City to construct residences on said properties to be occupied by them or any member of the Negro race because said City will not issue permits for such construction solely because the provisions of said ordinances limit the occupancy of said properties to members of the white race.

The Court further finds that all of the properties of all of the plaintiffs are located in sections of said City that have been, and now are, by virtue of the provisions of said zoning ordinances, reserved exclusively for occupation by white persons; that it is the established and universal policy and custom of the officials of said City to deny building permits to construct residences for Negro occupancy in districts that are zoned for white occupancy, and this custom and policy on the part of said officials is frankly admitted by them in their testimony in this case.

The Court further finds that, if dwellings were erected on said properties, the plaintiffs or other Negroes could not occupy the same without becoming subject, under the provisions of said zoning ordinances, to criminal prosecution, fine and imprisonment solely on account of the fact that they are members of the Negro race.

The Court finds that the plaintiff, Mary Means Monk, is a Negro, a citizen of the United States, and a resident of the City of Birmingham, Alabama; that she is the owner of real property located in the City of Birmingham, Jefferson County, Alabama, as described in paragraph 4 of the complaint, and that she paid $2,000 for said property and bought it for the purpose of building thereon a home for herself and family. The Court finds further that she employed a contractor to draw plans and specifications for said house and has paid him $2,000 on the construction price of the house, making a total of $4,000 actually expended by the plaintiff, Mary Means Monk, up to the date of this suit in and about the construction of the proposed dwelling. These plans and specifications were submitted by the plaintiff, Mary Means Monk, and her contractor to H. E. Hagood, Building Inspector of the City of Birmingham, who, after minor changes had been made in accordance with his instructions, approved the plans and specifications as complying with all of the requirements of the Building Code of the City of Birmingham. Under said Building Code no person can erect a building without first obtaining a permit therefor from the Building Inspector. The Court finds further that, after repeated requests for a permit to build on her said property made by the plaintiff, Mary Means Monk, and her contractor to the officials of said City authorized to issue building permits, a building permit was refused by them solely on the ground that the property was zoned exclusively for occupancy by members of the white race.

The Court finds further that unless injunctive relief is granted by this Court as prayed, the plaintiffs will suffer irreparable injury and damage, and that the plaintiffs do not have an adequate remedy at law.

Each of the plaintiffs is a Negro, a citizen of the United States, and a resident of the City of Birmingham, Jefferson County, Alabama, which is within the Southern Division of this court. The defendant, City of Birmingham, is a municipal corporation created and organized under the laws of the State of Alabama and exercising powers conferred upon it by said State. The defendant, James W. Morgan, is one of the Commissioners of the City of Birmingham, the Commissioners being the governing body of said City. As such Commissioner, he is the head of the department of the City empowered to grant or deny building permits. H. E. Hagood is the Building Inspector of said City and as such is authorized to grant or refuse building permits and is the chief enforcement officer of its zoning ordinances.

When a party has complied with the valid provisions of a municipal building code, a suit...