1940, to April 24, 1941, only seven (7) colored persons were certified. The record further shows that on April 3, 1940, there were six hundred eighty-three (683) white families certified and ten (10) negro families certified. Therefore, as has been indicated, there can be no doubt but that the Authority certified white tenants who made application for occupancy and did not certify negroes.
The defendants, after the complainants had offered all their testimony, without offering any defense made a motion to dismiss the complaint, pursuant to Rule 41(b) of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, thereby averring that on the facts and the law the plaintiffs had shown no grounds for relief.
It is the plaintiffs' contention that the action of the Housing Authority previous to April 24, 1941, and the adoption of the Management Resolution, setting a policy for the selection of tenants for the project, in conformity with the neighborhood pattern, is violative of the Fourteenth Amendment to the Constitution of the United States, which provides:
"Section 1. * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. * * *
"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Further that this conduct also is allegedly violative of the Act of April 20, 1871, Revised Statutes § 1979, now Section 43, Title 8 U.S.C.A., which provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Jurisdiction of this Court is derived from Section 41, Subsection 14 of Title 28 U.S.C.A.: "where the matter in controversy exceeds $3000 and arises under the Constitution or laws of the United States."
The facts as set forth in the bill make a proper ground for an application for a preliminary injunction in conformity with the rule as set forth in Warner Bros. et al. v. Gittone, 3 Cir., 110 F.2d 292, since if the policy adopted by the defendants is discriminatory and denies to the plaintiffs the equal protection of the law, there is an irreparable loss and damage to the complainants, for the testimony shows that at the time of the application for the bill eighty percent (80%) of the families certified for occupancy on the Tasker Street Project of one thousand (1,000) available units, were white, and if the basis for the further certification is the Management Resolution of April 24, 1941, the percentage would be still higher, and would thus deny the complainants the right of occupany, which if they are so entitled, would be foreclosed by the present method of certification.
Accordingly, it is then necessary to pass to a consideration of the case upon its merits, and this concerns itself with whether the policy of the Board previous to April 24, 1941, and the Management Resolution of that date, the Housing Authority being admittedly a state agency, is violative of the equal protection clause of the Fourteenth Amendment and the legislation enacted in pursuance thereof. Following the Civil War certain amendments to the Constitution were adopted which have become integral parts of that instrument, equally binding upon all the states and fixing certain fundamental rights which all are bound to respect. The Fourteenth Amendment made all persons born or naturalized in the United States, citizens of the United States and of the state in which they reside, and provided that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States and that no state shall deprive any person of life, liberty or property, nor deny to any person the equal protection of the laws. While the principal purpose of the amendment was to protect persons of color, the broad language used has been deemed sufficient to protect all persons, white or black, against discriminatory legislation by the states; this is now the settled law. In many of the cases since arisen, the question of color has not been involved, and the cases have been decided upon alleged violation of civil or property rights, irrespective of race or color of the complainant.
The courts have on many occasions passed on the construction to be given to the equal protection clause of the Fourteenth Amendment, and at this date there can be no doubt, but that any state action which denies to any person within its jurisdiction the equal protection of the laws runs afoul of the constitutional provision. Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664. As was said by the court in Ex Parte Virginia, 100 U.S. 339, 347, 25 L. Ed. 676, "Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State". Therefore, as a result of the adoption of the Fourteenth Amendment to the United States Constitution, a state is required to extend to its citizens of the two races, white and black, substantially equal treatment in the facilities it provides from the public funds. Accordingly, the authorities hold that to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights, which are possessed by others, denies to them the equal protection of the laws. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208; University of Maryland v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706. The courts have many times recognized the obligation of the state to provide negroes with the same advantages or substantially equal to the advantages, afforded to white persons, and in so doing the courts have held that the obligation is satisfied by the state when it furnishes facilities to negroes, equal to those offered to whites, as in separate school accommodations and pullman car privileges. Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; McCabe v. Atchison, T. & S.F. Ry. Co., 235 U.S. 151, 35 S. Ct. 69, 59 L. Ed. 169; Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172; Mitchell v. United States, 61 S. Ct. 873, 85 L. Ed. 1201, decided by the Supreme Court of the United States on April 29, 1941. As was very pertinently stated by Justice Brown in Plessy v. Ferguson, supra [163 U.S. 537, 16 S. Ct. 1140, 41 L. Ed. 256]:
"The oject of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power."
Since it can no longer be doubted therefore that proper segregation, that is the affording of equal facilities to both races thus separated, is not within the inhibition of the Fourteenth Amendment and the legislation enacted pursuant thereto, the only question remaining for decision is whether or not the action of the Philadelphia Housing Authority in certifying tenants in conformity with the neighborhood pattern is a reasonable regulation or a discrimination, arbitrary, illegal and unjust.
A thorough examination of the testimony, it is felt, shows that the action of the defendants is neither arbitrary, discriminatory nor illegal. In view of the scope of the problem which confronted the Philadelphia Housing Authority, after the collapse of one-half of its program, it is felt that far from being discriminatory or arbitrary the Authority in the performance of the duties incumbent upon them has met and is meeting the problem with forbearance and tolerance as is evidenced by the fact that when the program is completed, although the need is much greater among white people for low "economic rent", nevertheless, there will be a much greater preponderance of negroes in occupancy of the various units, than their need entitles them to.
The conduct of a state agency which as here merely implies a legal distinction (basing selection of tenants certified on neighborhood pattern) between the white and colored races, a distinction which is founded on the color of the two races and which must always exist, so long as white men are distinguished from other races by color, has no tendency to destroy the legal equality of the two races. The argument cannot be accepted that equal rights cannot be secured to the negro, except by an enforced commingling of the two races. Neither the Thirteenth, Fourteenth, nor Fifteenth Amendments to the United States Constitution operate to make the negro race wards of the nation. In determining the question of reasonableness, the Philadelphia Housing Authority was at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the preservation of public peace and good order as well as a promotion of their comfort, which was the purpose for the creation of the Authority. This it is felt the Philadelphia Housing Authority has carefully done.
The application for the preliminary injunction is denied.
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