Spencer v. Flint Memorial Park Ass'n

• Citation: 4 Mich.App. 157,144 N.W.2d 622
• Decision Date: 13 September 1966
• Docket Number: No. 318,No. 2,318,2
• Parties: J. Merrill SPENCER, Plaintiff-Appellee, v. FLINT MEMORIAL PARK ASSOCIATION, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan (US)

Page 622

144 N.W.2d 622

4 Mich.App. 157

J. Merrill SPENCER, Plaintiff-Appellee, v. FLINT MEMORIAL PARK ASSOCIATION, Defendant-Appellant.

Cal. No. 318.

Court of Appeals of Michigan, Division No. 2.

Sept. 13, 1966.

John T. Damm, Weiss & Damm, Flint, for appellant.

A. Glenn Epps, Flint, for appellee.

Before LESINSKI, C.J., and T. G. KAVANAGH and QUINN, JJ.

LESINSKI, Chief Judge.

Plaintiff is the owner of certain burial rights or right of sepulture in lot 21 of section 1 of the Flint Memorial Park Cemetery which is owned by defendant Flint Memorial Park Association, a Michigan non-profit corporation.

This suit was brought against the association by plaintiff, a Negro, to enjoin the association from interfering with and refusing to allow plaintiff to bury the body of a Negro tendered by plaintiff for burial in the plot owned by plaintiff. Defendant raised as a defense a restrictive agreement or condition, existing at the time plaintiff purchased the burial plot, which excluded the bodies of Negroes from burial in the cemetery.

The cause being submitted on an agreed statement of facts, the trial court issued a summary judgment in plaintiff's favor from which defendant has processed this appeal.

The sole question to be determined here is: Whether it is a denial of equal protection under the 14th Amendment to the United States Constitution for a state to enforce a restrictive agreement of a cemetery association which would deny the owner of a cemetery plot, who is a Negro, the right to bury a non-Caucasian therein.

The excellent opinion filed in this cause by the learned trial judge, Stewart A. Newblatt, leaves nothing further to be said. We enthusiastically adopt the reasoning and conclusions therein. The opinion is as follows:

'This court is now being asked to pass on the question of whether a cemetery association may refuse to permit an owner of a lot the right to bury a Negro in that lot. In a sense, it seems highly grotesque to spend such time and legal effort in considering the rights of dead soulless bodies when we have not as a society yet secured full rights for the living.

'This cause has been submitted upon a joint statement of facts which need not be repeated herein except to note that the plaintiff is the owner of a cemetery plot--right of sepulture in the language of the trade--in defendant cemetery which cemetery was organized as a non-profit corporation under Act 12 of the Public Acts of 1869 ¹ as a rural cemetery. The plaintiff's ownership of this plot was previously determined in an earlier case between these parties in this circuit, being Case No. 68906, which determination was not appealed and which therefore is final. When a burial right is purchased, one of the conditions thereof provides that:

"In instance shall the cemetery be utilized for the burial of dead bodies of other than the human race and of the Caucasian race only, or of the ashes thereof.'

'It is of no importance to the decision in this cause whether or not such restriction was in the certificate of ownership upon which the plaintiff relies for the plaintiff purchased this lot knowing of such restriction. There is no question but that if this court is required to enforce this provision, it would be applicable to the plaintiff and his burial plot.

'The statute under which the defendant was organized provides that lands set aside for cemetery purposes and the rights of burial therein are wholly tax exempt, CL 1948, § 456.108 (Stat.Ann.1963 Rev. § 21.878), and that such rights are transferable and as fully alienable as any other personal property in this state subject only to such conditions as shall be prescribed by the board of directors (CLS 1961, § 456.112 (Stat.Ann.1963 Rev § 21.882)).

'The owner of the lot, the plaintiff, is a Negro and the body tendered and which was refused was that of a Negro. It is in this general context that this cause must be decided.

'Obviously under the law of contracts, we must deny the plaintiff recovery if the restriction is enforceable for aside from valid public regulation, a cemetery lot owner's rights are contractual and subject to the ordinary rules of contract law. 4 Michigan Law and Practice 674; 14 C.J.S. Cemeteries § 25; Lewis v. Glen Eden Development Company (1936), 276 Mich. 627, (268 N.W. 760). This brings us squarely to the 1948 case of Shelley v. Kraemer and McGhee v. Sipes (1948), 334 U.S. 1 (68 S.Ct. 836, 92 L.Ed. 1161). (Note that although the case is known as Shelley v. Kraemer, McGhee v. Sips was a companion case which came to the United States Supreme Court by certiorari from the Michigan Supreme Court.) In Michigan prior to this case, the Michigan Supreme Court considered that covenants prohibiting sale or transfer of title to persons of a particular race were invalid as constituting unlawful restraints on alienation, 3 A.L.R.2d 475; but Michigan also took the view that racial covenants or conditions restricting Use and Occupancy by non-Caucasians were generally valid and enforceable. Parmalee v. Morris (1922), 218 Mich, 625 (188 N.W. 330, 38 A.L.R. 1180); Schulte v. Starks (1927), 238 Mich. 102 (213 N.W. 102); Sipes v. McGhee (1947), 316 Mich. 614 (25 N.W.2d 638); Northwest Civic Association v. Sheldon (1947), 317 Mich. 416 (27 N.W.2d 36, 4 A.L.R.2d 1359); Malicke v. Milan (1948), 320 Mich. 65, (77 30 N.W.2d 440, 32 N.W.2d 353, 4 A.L.R.2d 1412). (Reversed after Shelley v. Kraemer); Porter v. Barrett (1925), 233 Mich. 373, (206 N.W. 532, 42 A.L.R. 267). As a result of Shelley v. Kraemer which reversed McGhee v. Sipes, the judicial enforcement by state courts of covenants restricting the use and occupancy of real property to persons of the Caucasian race was held to be in violation of the 'equal protection' clause of the 14th Amendment to the United States Constitution. The reasoning of this decision makes it clear that although that amendment prohibits State action which denies the equal protection of the law to all persons, but does not prohibit private action, the Court for the first time held that judicial action enforcing private discriminatory agreements is state action and therefore within the 14th Amendment's field of operation. The holding consequently was that, although such restricitve covenants regardless of the race against whom they were directed are not invalid or void (since they result from the action of individuals), they were nevertheless unenforceable in the state courts for such enforcement would be state action. The Supreme Court in Shelley v. Kraemer, supra (334 U.S.) at p. 13, (68 S.Ct. at p. 842), put it thusly:

"We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the 14th Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the state and the provisions of the amendment have not been violated. * * * But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. * * * (Citing In Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676, 679--an 1880 case). * * * 'A state acts by its legislative, its executive, or its judicial authorities. It can act no other way.' * * * We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. * * * These are cases in which the states have made available to such individuals (those desiring to impose the restrictive covenants) the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing. * * * Judicial action is not immunized from the operation of the 14th Amendment simply because it is taken pursuant to the state's common law policy. Nor is the amendment ineffective simply because the particular pattern of discrimination, which the state has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the 14th Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the 14th Amendment, it is the obligation of this Court to enforce the constitutional commands. * * * We hold that in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand.'

'In answer to the contention that such restrictive covenants would not deny equal protection of the laws because such covenants could be used to restrict ownership, use or occupancy of whites, orientals, Indians, et cetera, as well as Negroes, the Supreme Court said (334 U.S.) at p. 22 (68 S.Ct. at p. 846):

"The rights created by the first section of the 14th Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say...