Mrsa v. Reynolds , 317 Mich. 632 ( 1947 )

Plaintiffs are occupants and owners of the fee or of equitable interests in homes in Oakdale subdivision in Detroit. By conveyances and in accordance with mutual understandings, covenants and agreements, without exception the use and occupancy of the premises in this subdivision has been and is restricted as follows:

"None of said premises shall be used or occupied by people of the African race."

Plaintiffs filed this bill of complaint to restrain the defendants from occupying the premises which they had purchased and were occupying at 17927 St. Aubin avenue, being lot 267 of said subdivision. One or more previous conveyances of this lot contained the above restriction. The defendants are negroes and had ample notice and knowledge of the restriction. After hearing proofs, a decree was entered restraining the defendants from occupying said premises, and requiring them to move therefrom within 60 days.

Defendants appeal and seek reversal on several grounds, the first of which is that people of the African race does not necessarily mean or include colored persons, nomenclatured Negroes. With this contention we are not in accord.

"The language employed in stating the restriction is to be taken in its ordinary and generally understood or popular sense, and is not to be subjected to technical refinement, nor the words torn from their association and their separate meanings sought in a lexicon." Seeley v. Phi Sigma Delta House Corporation,245 Mich. 252, 253.

"Negro, Generally a person belonging to the African race, and having such a proportion of African blood as will identify him with that race." Cyclopedic Law Dictionary, p. 620.

"African, n. A native of Africa; also, one ethnologically of an African race." Webster's New International Dictionary (2d Ed.), p. 45.

"Negro. As a noun. A black man descended from the black race of South Africa.

"As an adjective. Belonging wholly or partly to the African race; of or pertaining to the negroes, or to persons partly of negro origin." 45 C.J. p. 1376.

"African. Of or belonging to the black race of Africa; characteristic of or peculiar to negroes." 2 C.J. p. 395.

"Colored Persons. Not a phrase of art, but often applied to black people, Africans, or their descendants, mixed or unmixed; persons of African descent or negro blood; persons of the negro race; persons who have any perceptible admixture of African blood." 7 Cyc. pp. 400, 401.

"Negro. A black man descended from the black race of South Africa." 29 Cyc. p. 661.

"All marriages heretofore contracted between white persons and those wholly or in part of African descent are hereby declared valid and effectual in law for all purposes." 3 Comp. Laws 1929, § 12695 (Stat. Ann. § 25.6).

"That no life insurance company doing business in this State shall make any distinction or discrimination between white persons and colored persons, wholly or partially of African descent, as to the premiums or rates charged for policies upon the lives of such persons." 3 Comp. Laws 1929, § 12457 (Stat. Ann. 1943 Rev. § 24.293).

"The term `colored race' is but another designation, and in this country but a synonym for African." Clark v. Board ofDirectors, 24 Iowa, 266, 275.

"The law as enacted by congress (naturalization act) gives no place for the consideration of intellectual or moral qualifications or past achievements in a nation or people. It says that the privileges of citizenship of this country may be extended to `free white persons' and to persons of `African nativity' and `African descent.' * * * By persons of African nativity or African descent presumably the statute means the negro races of Africa or their descendants by intermixture with the races before defined as being the races constituting free white persons. The negro races of Africa presumably referred to are those races from which the emancipated slaves in the United States (who were made citizens by the 14th amendment to the United States Constitution) descend." Ex parte Shahid, 205 Fed. 812, 815, 816.

The preliminary emancipation proclamation issued by President Lincoln, September 22, 1862, contains the following declaration:

"That the effort to colonize persons of African descent with their consent upon this continent or elsewhere, with the previously obtained consent of the government existing there, will be continued." G. Mercer Adam's Speeches of Abraham Lincoln, p. 351.

We conclude that the restriction as worded was not void for uncertainty and applies to the defendants herein.

The other questions raised by appellants are: Can a corporation make contracts discriminating and segregating as to race? Is the clause in the instrument in question one that runs with the land? Was the discriminatory clause relied on by the plaintiffs void as being against public policy? Was the restrictive covenant relied on by the plaintiffs valid under section 16, article 2, of the Constitution of Michigan, or contrary to the provisions of the 14th amendment to the United States Constitution? Would the enforcement of said decree by a court of equity deny to the defendants equal protection of the laws of the State of Michigan and of the United States of America? Would the enforcement of said decree by a court of equity constitute a taking of the defendants' property without due process of law?

These questions have been decided adversely to appellants' contentions by the United States supreme court in Corrigan v.Buckley, 271 U.S. 323 (46 Sup. Ct. 521, 70 L.Ed. 969), and more recently by this Court in Sipes v. McGhee, 316 Mich. 614,^* andNorthwest Civic Ass'n v. Sheldon, ante, 416. We need not repeat what was there written.

The decree directs that the defendants vacate the premises within 60 days from its entry on November 16, 1945. It will be modified to provide that the defendants vacate the premises within 60 days from the entry of a decree in this Court in accordance with this opinion, which in all other respects will affirm the decree entered in the circuit court, and provide for remand for enforcement thereof, with costs to appellees.

CARR, C.J., and BUTZEL, BUSHNELL, SHARPE, REID, NORTH, and DETHMERS, JJ., concurred.

^* The case of Sipes v. McGhee was reversed by the Supreme Court of the United States on May 3, 1948, 334 U.S. 1 (68 Sup. Ct. 836. 92 L.Ed. ___). — REPORTER.