dissenting:
I dissent from that portion of the majority opinion which holds that some portions of the Colorado Fair Housing Act of 1959 are constitutional.
The ultimate goal of the act is to enable a private individual to acquire the property of another without the consent of and contrary to the wishes of the owner of the property.
Such legislation, in my humble opinion, has as its goal the accomplishment of that which Article II, Section 14 of the Constitution of the State of Colorado, in these clear words, states shall not come to pass:
“Private property shall not be taken for private use unless by consent of the owner, * * * .”
Without a doubt, the Fair Housing Act of 1959, as applied to the facts in this case, is designed to vest the Rhones with title to Case’s residential property without the consent of the owner Case.
Much is said in the majority opinion and the specially concurring opinion of Mr. Justice Frantz concerning the constitutionally guaranteed right:
“ * * * of acquiring, possessing and protecting property * * * .” Art. II, Sec. 3.
Just how does one go about exercising this right? For nearly two hundred years in these United States of America, one seeking to acquire property sought an owner wanting to sell, and on complete agreement between the parties a sale was consummated. The parties *258enjoyed complete freedom of contract. The buyer could refuse to buy for any reason; the seller could refuse to sell for any reason, whimsical or otherwise.
The Fair Housing Act of 1959 and the majority opinion now change all of this and would compel Case to transfer his residential property to the Rhones, not voluntarily, but under compulsion, with sanctions that might lead to his imprisonment for failure to comply.
Just how that can be done and Article II, Section 14 of the Constitution of Colorado remain meaningful is, to me, unclear.
The majority, unwilling to rest its conclusions on the foregoing constitutional provision, and Justice Pringle in his specially concurring opinion, seek to justify the act and the action of the Colorado Anti-Discrimination Commission under the police power of the state.
Justice Pringle, in his specially concurring opinion, states:
“As pointed out by the majority opinion here and in Jones v. Haridor, supra, and the cases cited therein, the right of an owner to use his property as he wishes is not absolute. It is, and always has been, subject to reasonable restraint under the police power, so long as the exercise of such power bears a reasonable relation to the public health, safety and welfare. Such I believe to be the case here.” (Emphasis supplied.)
To that language I subscribe, but point out that it has no application here. No one is complaining of the use made of the Case property. The complaint is that title stands in the name of Case, rather than Rhones.
I am persuaded that the name or names in which a title stands has nothing to do with the public health, safety or general welfare. It is the use only — not the ownership — of property that creates problems which warrant calling into play the unquestioned police powers of the state, powers necessary to protect the public health, public safety and general welfare. The police *259powers which the majority here sanction deal, not with the use of the property, but with title only.
It is stated in the majority opinion that: “ * * * We hold that as an unenumerated inalienable right a man has the right to acquire one of the necessities of life, a home for himself and those dependent upon him * * * .” The Rhones no doubt are seeking to acquire a home; however, under the act, their right to acquire the property as an investment or for other purposes was and is just as compelling as if they were seeking a home.
The majority opinion cites as authority one case, Massachusetts Commission Against Discrimination, et al., v. A. J. Colangelo, et al., (Mass.) 182 N.E. (2d) 595 (decided May 16, 1962), and states:
“We might lengthen this opinion with citations to numerous decisions of courts of last resort throughout the nation, but no good purpose would be served thereby. * * * .”
My research has uncovered the Massachusetts case, and none other, dealing with the problem before us. True, there are other cases involving discrimination in public housing; however, public housing cases, or cases involving public funds or benefits, present an entirely different problem than that present in the case at bar.
In Jones v. Haridor Realty Corp., (N. J.), 181 A. (2d) 481 (decided May 21,1962) it is stated:
“It is true, as Haridor and the Strausses point out, that cases involving attacks on such anti-discrimination laws are few in number throughout the country. But in the four jurisdictions where the matter has been presented, New York, New Jersey, California and Washington, the first three in the order named have sustained their constitutionality, * * * .”
The four cases referred to are:
1. New York State Commission Against Discrimination v. Pelham Hall Apts. (1958), 170 N. Y. S. (2d) 750, 10 Misc. (2d) 334. First, we note that this decision is *260not that of a court of last resort and cannot be considered as a binding precedent. Moreover, the case deals with possessory rights only in “public assisted housing.”
2. Levitt & Sons, Inc., v. State Div. Against Discrim., etc., 31 N. J. 514, 158 A. (2d) 177, a case where the law applies only to “public assisted housing accommodations.” In its opinion, the court said:
“ * * * There are two questions here. The first is whether the plaintiffs’ developments are ‘publicly assisted housing accommodation’ as that phrase is used in section 4 of the Law Against Discrimination and amplified by section 5 (k) of that statute. * * * .”
The court decided that the housing in question came within the terms of the statute dealing with discrimination in “public assisted housing” and concluded that as to such housing the statute was constitutional.
3. Burks v. Poppy Construction Company (Cal.), 370 P. (2d) 313. Here we have another case dealing with discrimination in (a) “business establishments” and (b) “publicly assisted housing accommodations.” The court decided that a house in a housing development was a “business establishment,” and also that the property in question was a “publicly assisted housing accommodation,” and that the act dealing with discrimination in dealings with that type of property was constitutional. The decision is grounded on the fact that the housing was “publicly assisted.”
4. In O’Meara v. Washington State Board Against Discrimination, 58 Wash. 2d 793, 365 P. (2d) 1 (1961), the court, in a five to four decision, held the Washington act unconstitutional, and this in spite of the fact that the legislation in question only sought to guarantee to all “the right to secure publicly assisted housing without discrimination.”
There the court said:
“The respondents’ home, which was ordered sold to a Negro, is specifically protected against such an order *261by amendment 9 of the Washington state constitution, which provides, inter alia: ‘Private property shall not be taken for private use * * * .’
“The act of the legislature is invalid because it derogates from this constitutional right. * * * .”
The only other case dealing with the problem which has come to my attention is Jones v. Haridor Realty Corp., supra. This is the case relied upon by Justice Pringle in his specially concurring opinion. Clearly this case involved public housing. As evidence of this, the court said:
“The entire site had Federal Housing Administration approval for home construction purposes. Haridor stipulated that it was subject to the Law Against Discrimination because it sold dwellings to buyers who financed their purchases through mortgage loans guaranteed by that Federal agency. Such use of public credit by both seller and purchaser draws the development into the category of publicly assisted housing accommodations. * * * .” (Emphasis supplied.)
I agree that the Massachusetts case involves the same question presented in the case now before us. I find no other decided case involving this identical question.
The majority states that “The conclusions reached by their [Massachusetts] court are sound.” I find nothing in the opinion in that case indicating that Massachusetts has any constitutional inhibition against taking private property for private use. There the court said that: “ * * * Clearly there has been no taking of property in a constitutional sense. * * * .”
Be that as it may, in my opinion, if the purpose of the Colorado Fair Housing Act of 1959 is accomplished, Case will be divested of his title without his consent and title will rest in the Rhones. Such a result, in my humble opinion, would constitute a “taking of property in a constitutional sense” and in flagrant violation of Article II, Section 14 of the Constitution of the State of Colorado.
The majority opinion, coupled with that of Justice *262Pringle, would nullify cherished property rights and expand the police powers to an extent that must ultimately erode all constitutional rights. Overlooked is the fact that the police power is invoked to promote the public welfare and not the welfare of two individuals; in this case, the Rhones.
Winking at clear constitutional provisions and giving judicial sanction to unlimited expansion of the police powers may well be forerunners of a police state.
I would declare the entire act unconstitutional as in direct violation of Article II, Section 14 of the Constitution of the State of Colorado.