Tyler v. Harmon

Citation104 So. 200,158 La. 439
Decision Date02 March 1925
Docket Number26948
CourtSupreme Court of Louisiana
PartiesTYLER v. HARMON

Rehearing Denied April 27, 1925

Appeal from Civil District Court, Parish of Orleans; H. C. Cage Judge.

Action by Joseph W. Tyler against Benjamin Harmon. Judgment for defendant, and plaintiff appeals.

Judgment annulled, and case remanded.

Walter Winn Wright, of New Orleans, for appellant.

Ivy G Kittredge, City Atty., of New Orleans, amicus curiae.

Loys Charbonnet, F. F. Teissier, and F. B. Smith, all of New Orleans, for appellee.

O'NIELL, C. J. ST. PAUL, J. (concurring).

OPINION

O'NIELL, C. J.

The question in this case is whether an ordinance of the city of New Orleans, providing for segregation of the residences of white and colored persons, violates the Fourteenth Amendment of the Constitution of the United States.

The ordinance is numbered 8037 and is in seven sections. The first section forbids the city engineer to issue a building permit for the construction of a residence for a negro in a "white community" or for a white person in a "negro community," without the written consent of a majority of the persons of the opposite race inhabiting the "community, or portion of the city to be affected."

The second section of the ordinance makes it unlawful for any white person to establish his home or residence in a negro community, or portion of the city inhabited principally by negroes, or for any negro to establish his home or residence in a white community, or portion of the city inhabited principally by white people, "except on the written consent of a majority of the persons of the opposite race inhabiting such community, or portion of the city to be affected."

The third section makes it unlawful for any person to maintain a home or residence established in violation of the second section.

The fourth section makes each seven days maintenance of a home or residence established in violation of the second section a separate and distinct offense.

The fifth section defines the terms "white community" and "negro community" as meaning and including "every residence fronting on either side of any street within 300 feet from the location of the property involved, measured along the middle of the street in any and all directions."

The sixth section fixes the penalty for any violation of the ordinance, which is a fine not exceeding $ 25, or imprisonment for a term not exceeding 30 days, or both fine and imprisonment within those limits, and in the discretion of the court.

The seventh section declares that, if any of the provisions of the ordinance should be held invalid, the invalidity shall not affect any other of its provisions.

In a preamble to the ordinance, it is said to be enacted to foster a separation of the white and negro residence communities, "in the interest of public peace and welfare"; and it is declared that the ordinance is enacted under authority of the Act 117 of 1912, and pursuant to the Act 118 of 1924.

The Act 117 of 1912, according to its title and in its text, purports to confer upon all municipalities in the state the authority to enact segregation ordinances, like the ordinance in contest.

The Act 118 of 1924 is entitled "an act relative to negro and white communities in municipalities having a population of more than 25,000." The statute makes it unlawful, in such municipalities, for any white person to establish his residence on any property located in a negro community without the written consent of a majority of the negroes inhabiting the community, or for any negro to establish his residence on any property located in a white community without the written consent of a majority of the white persons inhabiting the community. The written consent must be filed with the mayor of the municipality. The terms "white community" and "negro community" are defined in the statute exactly as they are defined in the ordinance in contest; and, like the ordinance, the statute makes each seven days' residence in violation of the law a separate and distinct offense.

The plaintiff in this case alleges that he is a citizen and taxpayer in New Orleans, owning real estate on the lower side of Audubon street, between Magazine street and Meadow street, in what is known as a white community, inhabited principally by white people. He alleges that the defendant owns a single cottage on the other side of Audubon street, in the same block, and within 300 feet from his lot; and that defendant is converting his cottage into a double cottage, intending to rent one side or apartment to negro tenants, without having obtained the written consent of a majority of the white persons inhabiting the aforesaid "white community."

Plaintiff prayed for a rule upon the defendant to show cause why he should not be enjoined and restrained from converting his cottage into an apartment for negro tenants, and particularly from renting the apartment for a home or residence for negro tenants, without having obtained the consent or permission required by the Ordinance No. 8037, by the Act 117 of 1912, and by the Act 118 of 1924.

Answering the rule, the defendant averred that he was a citizen of the United States, and pleaded:

(1) That plaintiff's petition did not disclose a cause or right of action.

(2) That the Act 118 of 1924 was unconstitutional, being violative of section 16 of article 3 of the Constitution of the state, requiring that every statute shall have a title indicative of its object.

(3) That the Act 117 of 1912, the Act 118 of 1924 and the Ordinance No. 8037 were all violative of the Fourteenth Amendment of the Constitution of the United States, in that they sought to deprive this defendant of his property without due process of law, by attempting to deprive him of the right to lease it to a constitutionally qualified person, on the sole ground of race or color.

The civil district court sustained the plea that the Ordinance No. 8037 and the Acts of 1912 and 1924 violated the Fourteenth Amendment; and the court therefore dismissed the suit. The plaintiff has appealed; and the defendant, answering the appeal, pleads again (1st) that the petition of the plaintiff does not disclose a cause or right of action, and (2d) that the Act 118 of 1924 is violative of section 16 of article 3 of the Constitution of Louisiana.

The plea that the petition of the plaintiff does not disclose a cause or right of action is founded only upon the fact that plaintiff did not allege that the city engineer had not actually issued a building permit for the conversion of the defendant's single cottage into a double cottage to be occupied in part by negro tenants. It is argued on behalf of the defendant that, if the city engineer did issue the building permit -- which is not denied in plaintiff's petition -- there would be no violation of the law, because the Act 117 of 1912 prescribes a penalty only for the offense of building or constructing a residence for a white person in a negro community or for a negro in a white community, without a permit from the municipality. The statute seems to be bungled in so far as it prescribes the penalty for a violation of it, because, in other respects, it does not purport to make it an offense to establish a residence for a white person in a negro community or for a negro in a white community, but merely authorizes the municipalities to withhold permits for such establishments. But that is a matter of no importance here, for the statute gives to the commission council of the city of New Orleans the authority to enact such ordinance as the one on which this suit is founded. That is not disputed by the learned counsel for defendant. Nor is it disputed that plaintiff has a remedy by injunction if the Ordinance No. 8037 is valid.

With regard to the plea that the Act 118 of 1924 is violative of section 16 of article 3 of the Constitution of the state, requiring that every statute shall have a title indicative of its object, our opinion is that the title of this statute is sufficient. But that also is a matter of little or no importance in this case, because, if the statute were unconstitutional for the reason stated, the plaintiff would yet have his remedy under the Ordinance No. 8037, if it is valid.

The only question, therefore, is whether the statutes and the ordinance are forbidden by the Fourteenth Amendment and the appropriate legislation which the Congress has enacted to enforce the amendment. We refer, of course, to section 1 of the Act of April 9, 1866, entitled "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication" (14 Stat. at L., c. 31, p. 27; Comp. Stat. 1916, § 3931), and section 16 of the Act of May 31, 1870, entitled "an act to enforce the right of citizens of the United States to vote in the several states of this Union, and for other purposes" (16 Stat. at L., c. 114, p. 144; Comp. Stat. § 3925).

What the Fourteenth Amendment did for the colored people in the United States was to give them citizenship and its privileges, to forbid the states to withhold from them the equal protection of the laws, and thus to prevent any discrimination against them, with regard to their political and civil rights, because of their color. The language in that respect is that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside; that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.

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14 cases
  • United States v. City of Jackson, Mississippi
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 13, 1963
    ......Cf. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Harmon v. Tyler, 1926, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing 160 La. 943, 107 So. 704, first appeal 158 La. 439, 104 So. 200; Buchanan v. ......
  • Beer v. United States, Civ. A. No. 1495-73.
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    • United States District Courts. United States District Court (Columbia)
    • March 15, 1974
    ......21, 9 L.Ed.2d 47 (1962). .          268 This was established by uncontradicted evidence at trial. .          269 See Tyler v. Harmon, 158 La. 439, 104 So. 200, 160 La. 943, 107 So. 704 (1925), rev'd, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831 (1927); Land Dev. Co. v. City ......
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 26, 1947
    .......         The specific rule, adjudged by the Supreme Court in the Buchanan and Harmon cases, that it is arbitrary to exclude a race from a neighborhood is an instance of the general rule that "discriminations based on race alone are ...303, 54 A.L.R. 1016. Nectow v. City of Cambridge, 277 U.S. 183, 187, 48 S.Ct. 447, 72 L.Ed. 842. .          16 Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing Tyler v. Harmon, 160 La. 943, 107 So. 704. Cf. Tyler v. Harmon, 158 La. 439, 104 So. 200. . ......
  • Meade v. Dennistone
    • United States
    • Court of Appeals of Maryland
    • January 11, 1938
    ...of the Fourteenth Amendment, any efforts in this direction by any state Legislature or subdivision of a state must fail. Tyler v. Harmon, 158 La. 439, 104 So. 200; Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831; State v. Darnell, 166 N.C. 300, 81 S.E. 338, 51 L.R.A, N.S., 332; Ca......
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  • Outline of the Law of Zoning in the United States
    • United States
    • Sage ANNALS of the American Academy of Political and Social Science, The No. 155-2, May 1931
    • May 1, 1931
    ...v. Burden, 214 App. Div. 824, 210 N.Y. S. 941, 241 N. Y. 288, 150 N. E. 120. Bas-sett and Williams, op. cit., p. 9.62 Tyler v. Harmon, 158 La. 439; 104 So. 200,160 La. 943, 107 So. 704; Harmon v. Tyler, 273U. S. 668; Liberty Annex Corp. v. City of Dallas,289 So. W. 1067. Bassett and William......

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