Terry v. Elmwood Cemetery

• Decision Date: 22 December 1969
• Docket Number: Civ. A. No. 69-490.
• Citation: 307 F. Supp. 369
• Parties: Mrs. Margaret Faye TERRY et al., Plaintiffs, v. The ELMWOOD CEMETERY, Defendant.
• Court: U.S. District Court — Northern District of Alabama

307 F. Supp. 369

Mrs. Margaret Faye TERRY et al., Plaintiffs, v. The ELMWOOD CEMETERY, Defendant.

Civ. A. No. 69-490.

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

December 22, 1969.

James K. Baker, Adams, Baker & Clemon, Birmingham, Ala., and Jack Greenberg, Norman C. Amaker and James Nabrit, III, New York City, for plaintiffs.

Sydney Lavender, Deramus, Johnston, Barton, Proctor & Swedlaw, Birmingham, Ala., for defendant.

MEMORANDUM OPINION

LYNNE, Chief Judge.

This class action for damages, injunctive and/or declaratory relief was brought by Negro plaintiffs, Mrs. Margaret Faye Terry, Mrs. Jimmie Lee Terry and Mr. Blevin Stout, who were not allowed to purchase burial lots in the public cemetery¹ owned and operated by defendant, The Elmwood Cemetery Corporation. The facts are not disputed and consequently the action has been submitted to the court for a judgment on the pleadings² pursuant to Federal Rules of Civil Procedure 12(c).

Bill Henry Terry, Jr., a Negro citizen of the United States and of the State of Alabama, volunteered to serve his country as a soldier on September 22, 1968, was sent to Fort Gordon, then to Japan, and arrived in Viet Nam on March 8, 1969. Having a premonition that he might be killed while in Viet Nam, he told his mother and young wife, two of the plaintiffs in this action, that he wished to be buried in Elmwood Cemetery in Birmingham, Alabama, in the event of his death. On July 3, 1969, Bill Terry was mortally wounded by the enemy while he was participating in a search and destroy mission. His body was sent back to the United States with the customary military escort, and upon arrival in Alabama was taken by the military authorities, in the company of the plaintiff mother and the plaintiff wife, to the Elmwood Cemetery, where the two mentioned plaintiffs attempted to purchase a burial plot. A man who identified himself as the manager of Elmwood refused to sell a cemetery lot for interment of Bill Terry's remains to these plaintiffs solely because they were Negroes.³ Elmwood has attempted to justify this action by answering that it has a policy of refusing burial in its cemetery to persons other than Caucasians which is based on the fact that all lot deeds for grave sites at the cemetery contain a provision limiting interment in Elmwood Cemetery to members of the Caucasian race, and that rules and regulations promulgated by Elmwood in 1954 provide in part:

Cemetery lots shall be owned only by human beings of the white and/or Caucasian race and the said lots shall be used only for burial of human bodies of the white and/or Caucasian race, and such ownership and use shall at all times be subject to the Rules and Regulations and By-Laws of Elmwood now or hereafter in force. Any attempted transfer of a lot or interest in a lot to one not authorized to own same shall be invalid and of no force and effect and the corporation shall not be obligated to honor such transfer.⁴

Since Bill Terry's wife and mother had already arranged for a funeral, when they were refused the right to purchase a burial lot from Elmwood, they had no alternative on July 19, 1969, but to have his body interred in a Negro cemetery.

On July 25, 1969, the wife and mother of Bill Terry, along with Belvin Stout, a Negro citizen of the United States who resides in Hueytown, Alabama, who also was not allowed to purchase a grave site from Elmwood because he was a Negro, filed this suit, alleging, inter alia, unlawful discrimination against Negroes as a class by Elmwood, which discrimination constitutes a badge or incident of slavery contrary to the thirteenth amendment of the Constitution of the United States and the 1866 Civil Rights Act, 42 U.S.C. § 1982 (1964). Jurisdiction of the court was invoked pursuant to 28 U.S.C. §§ 1343(3) & (4), 2201 (1964).

The Terry plaintiffs have offered to exhume the remains of Bill Henry Terry, Jr., and to transfer them to the Elmwood Cemetery if the court declares that the defendant wrongfully abridged plaintiffs' rights in refusing to sell them lots in the cemetery solely because they were Negroes.

Elmwood, through its attorneys, has indicated that it will comply with any declaration of rights the court shall make in this matter, and therefore the court will simply declare the rights of the parties, as authorized by 28 U.S.C. § 2201 (1964), and shall decline to issue an injunction at this time.

It is the opinion of the court that the 1866 Civil Rights Act, now embodied in 42 U.S.C. § 1982 (1964), requires that Negroes and other non-Caucasians be extended the same rights to purchase cemetery lots as whites are given. That Act provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Prior to June 17, 1968, it had long been assumed that this Act did not proscribe private discrimination, but was enacted by Congress under the authority of the fourteenth amendment of the United States Constitution, and thereby was circumscribed by the "state action" limitations of that amendment.⁵ At least one of the reasons for this erroneous assumption was the tortured legislative history of the 1866 Civil Rights Act. It was enacted by an angry and punitive Congress, over the veto of President Andrew Johnson, shortly after the close of the War Between the States. Because many legislators at the time were of the opinion that it was perhaps unconstitutional, after the fourteenth amendment was ratified in 1868, the 1866 Civil Rights Act was reenacted in 1870.⁶ Because of its restricted interpretation, it was seldom invoked by the courts.⁷

However, in June, 1968, the Supreme Court of the United States in the landmark case of Jones v. Alfred H. Mayer Co.,⁸ resurrected this statute from the catacombs of desuetude, and held that:

§ 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.⁹

The defendant has vigorously contended that interests in cemetery lots fall without the scope of § 1982. The court is not persuaded. Basically, there are two strings to defendant's bow: (1) § 1982 can only be supported by the thirteenth amendment if the section is considered a fair housing law, and Jones should therefore be limited to its precise facts; (2) the rights of a purchaser of a cemetery lot, because of its unique nature, do not fall within the meaning of the phrase "real and personal property" as used in § 1982. The first aspect of the argument may be disposed of quickly, but the second point requires more detailed consideration.

Since the famous case of Marbury v. Madison,¹⁰ the doctrine of judicial review by the federal courts has been firmly established, and pronouncements by the United States Supreme Court concerning the scope of constitutional provisions and the breadth and validity of statutes are considered the law of the land, binding on this and all other federal and state courts.¹¹ It is true that the facts in Jones involved the refusal of the defendants to sell the plaintiffs in that case a home in a Missouri community solely because the plaintiffs were Negroes. However, the statements concerning the scope of § 1982 were broad, and the effect of the decision was to reactivate a statute which had fallen into disuse. Nowhere did the Court indicate that § 1982 could only be sustained under the thirteenth amendment if construed as a fair housing law. To the contrary, its "badge of slavery" rationale indicates that it considers that § 1982 is valid and applicable in any situation involving racial barriers to the acquisition of real and personal property. In holding that the thirteenth amendment authorized § 1982, the Court stated:

Thus, the fact that § 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. The constitutional question in this case, therefore, comes to this: Does the authority of Congress to enforce the Thirteenth Amendment "by appropriate legislation" include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes.

"By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." * * * Whether or not the Amendment itself did any more than that—a question not involved in this case—it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."¹²

Cases subsequent to Jones construing § 1982 conclusively demonstrate that this court is on sound constitutional ground in recognizing the broad construction of the reactivated statute. Several recent cases have emphasized the broad language in Jones,¹³ three of them holding that whites as well as Negroes are protected by § 1982,¹⁴ and another construing the section to protect Negroes from exploitation by white real estate entrepreneurs.¹⁵ In addition, since Jones, courts have awarded damages, both actual¹⁶ and exemplary,¹⁷ and attorneys' fees,¹⁸ to parties whose rights under § 1982 have been violated, in spite of the fact that the statute does not mention the availability of these remedies. Finally, the Supreme Court itself, on...