dissenting:
I respectfully dissent for the reasons set forth in my opinion for the division of this court, attached hereto as an appendix.
APPENDIX
TAMM, Circuit Judge:Appellants, homeowners in the District of Columbia whose deeds contain racially restrictive covenants, brought a class action suit in the District Court against the Recorder of Deeds and the Commissioner of the District of Columbia1 on their own behalf and on behalf of all District of Columbia homeowners similarly situated. They alleged that the Recorder’s actions in accepting for filing, and maintaining public records of restrictive covenants was in violation of the Fifth Amendment and Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq.
They sought the following relief: (1) a declaration that their rights were infringed by the practice of the Recorder of Deeds in accepting for recording and filing public records containing racially restrictive covenants; (2) an injunction *656barring the Recorder from accepting for recording and filing any deed or instrument containing a racially restrictive covenant and from providing copies of such deeds or instruments without clearly identifying them as containing void and unenforceable racially restrictive covenants; and (3) an injunction requiring the Recorder to affix to every liber volume in his custody a notice that any racially restrictive covenants contained in the deeds or instruments therein were void and unenforceable.
In denying the requested relief, the District Court granted appellees’ motion to dismiss, whereupon this appeal was noted. We affirm. First, we shall examine the nature of the office of the Recorder of Deeds and then proceed to a discussion of the statutory and constitutional issues.
I.
Congress has provided that the Recorder of Deeds shall “ . . . record all deeds, contracts, and other instruments in writing affecting the title or ownership of real estate or personal property which have been duly acknowledged and certified;” D.C.Code § 45-701 (1967). He is further required to “perform all requisite services connected with the duties prescribed” in regard to the filing of instruments and to “have charge and custody of all records, papers, and property appertaining to his office.” D.C. Code § 45-701 (a) (3), (4) (1967).
Interpreting the statute shortly after enactment this court stated:
Undoubtedly, the recorder of deeds is in the category of ministerial officers, and has no jurisdiction to pass upon the validity of instruments of writing presented to him for record. It requires no elaboration of law or of the authorities to sustain this contention. Dancy v. Clark, 24 App.D.C. 487, 499 (1905).
We pointed out that although the Recorder does have ministerial discretion to determine whether a document is of the type appropriate for filing “[h]e is by the law required to receive and file . such instruments as have been duly executed, and which purport on their face to be of the nature of the instruments entitled to be filed. . . . ” Id. In short, the nature of the office bars the relief which appellants seek.
The Recorder of Deeds is a ministerial officer. The authority of a ministerial officer is to be strictly construed as including only such powers as are expressly conferred or necessarily implied. Youngblood v. United States, 141 F.2d 912 (6th Cir. 1944). A decision as to whether to file a deed containing a restrictive covenant involves discretion. Indeed, the Recorder is not even permitted to correct obvious typographical errors despite the consent of all the parties thereto.
Furthermore, the Recorder is not empowered by the statute to determine the legality, validity or enforceability of a document to be filed. Determining whether a covenant in a deed is a racially restrictive covenant demands a legal judgment. The clerical staff of the Recorder certainly does not have the knowledge, capacity or acumen to perform the tasks asked of them by appellants.
In many respects the Recorder’s function is similar to that of the clerk of a court. The clerk of a court, like the Recorder is required to accept documents filed. It is not incumbent upon him to judicially determine the legal significance of the tendered documents. In re Halladjian, 174 F. 834 (C.C.Mass.1909); United States, to Use of Kinney v. Bell, 127 F. 1002 (C.C.E.D.Pa.1904); State ex rel. Kaufman v. Sutton, 231 So.2d 874 (Fla.App.1970); Malinou v. McElroy, 99 R.I. 277, 207 A.2d 44 (1965). In State ex rel. Wanamaker v. Miller, 164 Ohio St. 176, 177, 128 N.E.2d 110 (1955), the court commented upon the function of its clerk in the following manner:
It is the duty of the clerk of this court, in the absence of instructions from the court to the contrary, to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is properly prepared and is accompanied by the requisite filing fee. *657The power to make any decision as to the propriety of any paper submitted or as to the right of a person to file such paper is vested in the court, not the clerk.
The Recorder is a neutral conservator of records. The entire purpose and value of his office is that he preserves the precise documents presented to him. To give the Recorder the power to do what appellants ask would not only be in violation of the statute creating his office, but would functionally distort the office into a hydra-headed monster.
Even though the acts of the Recorder are ministerial in nature, they may not violate with impunity the statutes of this land, nor may they contravene the constitution. We must therefore continue our inquiry. First, we turn to the relevant statute.
II.
Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3604(c) (1970), makes it unlawful
[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, or national origin, or an intention to make any such preference, limitation, or discrimination. (Emphasis supplied.)
On its face the statute clearly does not apply to the Recorder of Deeds. The Recorder does not offer property for sale or rent, nor is he in any way connected with the commercial real estate market. He merely functions as a neutral repository. The “notice” or “statement” the statute speaks of is that made by the offeror or his agent in the market place.
The legislative history bears out this interpretation. After a careful search of the hearings, debates and testimony, we find only that the depth and dearth of legislative history stands in sharp contrast to the shallowness of appellants’ position. The thrust of the statute is clearly directed towards advertising in the market place. As a principal witness at the hearings stated: “I think it outlaws advertising that is racial in nature.”2 Furthermore, while testifying on a substantially similar bill former Attorney General Katzenbach catalogued the parties and acts which the statute was intended to cover. The Recorder is nowhere mentioned. He stated:
The title applies to all housing and prohibits discrimination on account of race, color, religion, or national origin by property owners, tract developers, real estate brokers, lending institutions, and all others engaged in the sale, rental, or financing of housing.3
III.
Although the Fair Housing Act of 1968 does not prohibit the Recorder’s actions, those actions must be enjoined if they are violative of the due process clause of the Fifth Amendment. As the states are prohibited from racial discrimination by the Fourteenth Amendment, so the District of Columbia and its agents, including the Recorder of Deeds, are prohibited from discrimination on the grounds of race by the due process clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
The Supreme Court has declared racially restrictive covenants void and unenforceable. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The question presented here is whether the Recorder of Deeds, by recording and filing deeds containing racially restrictive covenants, deprives appellants of constitutional due process.
*658A prerequisite to recovery under the Fifth Amendment is a showing of (1) harm done appellants (2) by the Recorder. We find these essential elements lacking.
The Recorder of Deeds, impartial in thought as well as action, is not giving the approbation of the state to the substantive contents of the deeds filed. The Recorder, the cold steel safety deposit box of the real estate industry, merely preserves documents. Although he acts on behalf of the government, he acts as a studiously neutral repository.
The concept of neutrality plays an important role in constitutional law. Where the government is under no affirmative obligation to act and is merely neutral, there can be no due process violation.4 In a related area of the law courts have found insufficient state involvement in private discrimination to constitute a constitutional violation where the state merely played a neutral part.5 We find these cases most instructive.
The most developed area of law for our purposes is the administration of estates and trusts.6 If the state probates a discriminatory will through the use of its legal machinery — i. e., Recorder of Wills and Probate Court — the courts have held that the government is merely acting in a nonsignificant neutral capacity which does not constitute state action under the Fourteenth or Fifth Amendments. See United States National Bank v. Snodgrass, 202 Or. 530, 275 P.2d 860 (en banc 1954); Gordon v. Gordon, 332 Mass. 197, 124 N.E.2d 228, cert. denied, 349 U.S. *659947, 75 S.Ct. 875, 99 L.Ed. 1273 (1955). See also Wilcox v. Horan, 178 F.2d 162, 165 (10th Cir. 1949).
Speaking for the Court in Evans v. Newton, 382 U.S. 296, 300, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966), Justice Douglas stated:
If a testator wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of that facility, we assume argu-endo that no constitutional difficulty would be encountered.
If, however, in the administration of an estate or trust the government takes an active non-neutral role by supervising, managing or controlling, there is state action within the confines of the Fourteenth Amendment. See Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957); Pennsylvania v. Brown, 392 F.2d 120 (3rd Cir. 1968), cert. denied, 391 U.S. 921, 88 S.Ct. 1811, 20 L.Ed.2d 657 (1968).
In Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970) the Supreme Court found no state action in the Georgia state court’s application of the doctrine of cy pres to a racially discriminatory trust. The Court reasoned that the Georgia court was merely enforcing trust laws which were “long standing and neutral with regard to race.” Id. at 444, 90 S.Ct. at 633. (Emphasis supplied.) The court reached this conclusion despite the fact that a state is involved in a racially discriminatory trust in the following ways: (1) the state attorney general enforces the trust on behalf of the public; (2) the courts supervise the administration of the probate estate and trust; (3) the trust enjoys tax exempt status; and (4) the doctrine of cy pres as well as other state statutes often apply to the trust.
In the instant ease appellants urge that the mere neutral act of recording deeds constitutes state action in violation of the Fifth Amendment. In light of the above precedents, we cannot agree. In the final analysis, the evil of which appellants complain lies not in the office of the Recorder, but in the soul of man.
Appellants have also failed to demonstrate any harm resulting from the rec-ordation of racially restrictive covenants. These covenants are clearly unenforceable and may be easily repudiated.7 In addition, these covenants do not constitute a cloud on title or affect the marketability of the property. As the learned District Judge stated:
It is stretching top far to say that the presence of the offensive language in a deed in the custody of t,he Recorder is going to frighten a would-be buyer. We must face the practicality that buyers do not begin their negotiations by examining the records maintained by the Recorder of Deeds. That function is performed by brokers, attorneys and title insurance companies making the record searches. .Brokers, lawyers and title insurance companies are fully aware that racially restrictive covenants are not enforceable. 330 F.Supp. at 448.
Appellants, nevertheless, rely upon Bryant v. State Board of Assessment of State of North Carolina, 293 F.Supp. 1379 (E.D.N.C.1968) and Hamm v. Virginia State Board of Elections, 230 F.Supp. 156 (E.D.Va.1964), aff’d per curiam sub nom. Tancil v. Woolls, 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91 (1964), for the proposition that where records are maintained with unconstitutional racial identifications the maintenance is unconstitutional per se- requiring no demonstration of harm. Appellants have misread these cases. In these cases state officials listed Negro and white citizens separately on voting, property assessment and divorce records. In voiding these laws, the Bryant court found that citizens were harmed because the opportunity for discrimination in jury selection was present. No such potential exists here. Furthermore, there is *660no list maintained here which classifies individuals by race, for restrictive covenants appear on deeds owned by persons of all races. Moreover, in each of those instances the lists were compiled and maintained by affirmative action of the state. A situation we again do not have here.
IV.
We reach our decision somewhat reluctantly. Not reluctant in the law we expound, for we know it to be right; but, reluctant in the conclusion some may draw, and the interpretation others may glean, from our decision. We firmly believe the legal result in this case to be correct. We are convinced that the ministerial nature of the office of Recorder of Deeds bars the remedy sought. We also can find no statutory or constitutional violation in the actions of the Recorder of Deeds. This, however, is not to say there is no remedy for an unfortunate situation. It merely means the remedy sought is beyond the ken of the judiciary.
Congress has a panoply of power as well as a plethora of resources at its disposal to create the legal machinery to deal with this problem. We note that the courts have given an expansive reading to Congressional power in the eradication -of discrimination from the fibre of our society. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). We urge the Congress to gather together representatives from among the bankers, brokers, title insurance companies and land developers for a serious attempt at a solution. Restrictive covenants, born of a racist milieu, exorcised by the white-sheeted ghosts of a not too distant past, do not find favor with this court. We exhort the Congress to extricate the nation from this quagmire of inequality by excising these atavistic anachronisms from the legends of our culture.
V.
The vigor of our dissenting brother requires us, reluctantly, to point out, respectfully, his unfortunate failure to distinguish between the facts in this record and the fluency of his self-created rhetoric upon which he bases his erroneous conclusion. By frequently incanting “restrictive racial covenants”, “constitutional” and “individual rights”, as if the mere utterance of these words had some secret power to dictate an only conclusion, the dissent is obviously and completely hubristic of the factual situation to which the record confines us. There is no evidence of “governmental participation in ... an illegal endeavor— . , maintenance of a segregated housing market” or of Government becoming a “co-conspirator in an illegal scheme.” The Recorder, as we point out, is neither “publishing nor circulating” racial covenants. The Recorder has not made a “policy decision to consider illegal, racist covenants as documents affecting the title or ownership of real estate,” nor is he giving “deliberate and manifest encouragement of private discrimination.” The Recorder does not put “Government’s seal of approval” on the documents he files any more than the clerk of this court puts judicial approval on the documents he accepts for filing. Obviously the filing of documents with the Recorder does not in any manner, means or way establish their legitimacy. These strained contortions of the meaning and nature of the record in this case, illustrate again the unfortunate practice of some members of this court of attempting to wrench far-reaching social changes without regard to the facts, the law or precedents in a particular case, and in absolute disregard of the principle of separation of powers. The practice of choosing the philosophically eclectic rather than the established legal precedents is unfortunately a pursuit of abstract liberalism for its own sake rather than an adjudication of the law governing an individual case. The dangerous illusion that the courts, upon the pretext of ruling upon a particular case may *661articulate with great sympathy and understanding upon all of the social evils of the nation, is implausibly fashionable in some areas of judicial rulings, with a resulting horrible economy of law. Somehow, these judicial proclamations, be they in medicine, economics, ecology, political science, religion, domestic relations or crime, are presumably made more acceptable by using such euphemisms as “civil rights”, “constitutional rights”, “discrimination” and “public interest”, regardless of the fact that the record before the court is devoid of factual data supporting the resulting judicial legislation. That we thereby evade the legal truth in a particular situation is self-justified, apparently in the view that we have homogenized the life-blood of society. Without praying for, or dreaming of a consensus on every issue, we regret the suggested disposition of this, or any case for that matter, on a philosophical rather than a legal basis,
. The Commissioner is empowered to appoint, supervise, and control the Recorder. D.C.Code § 45-701 (a), (c) (1967).
. Hearings on S.1026, S.1318, S.1362, S.1462, H.R.2516, H.R.10805 Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 90th Cong., 1st Sess. 233 (1967).
. Hearings on S.3296 Before the Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 89th Cong., 2nd Sess., pt. 1, at 84 (1966).
. Government inaction as well as action may result in a constitutional violation. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). However, the government must have a duty to act and the failure to so act must result in state supported or encouraged discrimination. The instant case is clearly inapposite.
. State action appears to exist here. This is not a case where a plaintiff brings suit against a private individual and alleges state involvement in private discrimination. Here plaintiff is suing the state and asserting that the state is involved in discrimination. The case is certainly unusual in this sense. If, however, we were to ignore this factor and analyze the ease in terms of whether there is state action which encourages private discrimination, we would find none, for the state action complained of is merely a neutral one.
It must be recalled that not all governmental action is state action within the purview of the Fifth Amendment. The action must “significantly” involve the state in private racial discrimination. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). This is a logical conclusion. Any other result would open unfathomable breaches, for surely it cannot be gainsaid today that the government is not to some extent involved in every facet of our lives.
In Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1966), the Court suggested three factors to consider in determining whether state action is present. The first' — immediate objective of the act — and the third — historical context and conditions existing prior to the act — are clearly inapposite. The sole purpose of the statute creating the office of the Recorder, and the actions of the Recorder, is to facilitate and insure the safe transfer of reality. The Recorder is a neutral repository. He is not an advocate. The second factor — ultimate effect of the act — likewise indicates no state action to discriminate. Contrary to appellants’ allegations no substantial harm is caused by the actions of the Recorder. See discussion in text.
Clearly then, the relevant factors set forth in Reitman indicate no state action. Furthermore, the neutral aspect of the governmental action which we have discussed in the text px-ecludes a finding of state action within the terms of the Fourteenth Amendment See Evans v. Abney, 396 U.S. 435, 444, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970); footnote 6, infra.
. Neutral state involvement in many other forms of discrimination have been placed outside the scope of the constitutional guarantees. See Walz v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (religious tax exemption); Black v. Cutter Laboratories, 351 U.S. 292, 76 S.Ct. 824, 100 L.Ed. 1188 (1956) (state court enforcement of contract clause); Williams v. Howard Johnson’s Restaurant, 268 F.2d 845 (4th Cir. 1959) (licensing by the state).
. The homeowner need only file a corrective deed with the Recorder and pay a. nominal fee.