(dissenting).
I think the decision of the court is wrong for several reasons.
(1) I think this case is within the settled principle that when an agreement which restricts the use of real property can no longer serve its purpose it is not enforceable in equity. The parties to the agreement obviously wished to maintain the value of their properties and doubtless also wished to live in an exclusively white neighborhood. Enforcement today of this agreement made many years ago will accomplish neither purpose.
The agreement was made in 1925 by owners of all the houses and lots in the 2200 block of First Street N. W. Like the rest of First Street this block runs north and south. Most if not all of the property immediately west of this block, and for a considerable distance beyond, is occupied’ by Negroes. Six consecutive blocks on First Street, including the 2200 block and the blocks immediately north and south of it, were occupied by white persons and were subject to restrictive agreements at the time of the trial in the District Court-So was, and apparently still is, a considerable area immediately east of these six blocks. But the 2100 block on First Street,. *874which is immediately south of the 2200 block, ceased on November 1, 1944 to be covered by an agreement. When this suit was tried two houses in the 2100 block had already been sold to colored persons and suits regarding them were pending. The restrictive agreement with respect to the 2200 block itself will expire on September 1, 1946 and obviously will not be renewed. All of the property in the 2200 block is now more valuable for sale to Negroes than to white persons. There is ample testimony to that effect and there is no dispute about it. Real estate dealers testified that the houses in this block are worth about $7500 for sale to white purchasers and about $10,000 for sale to colored purchasers. Appellants’ house had been vacant for some time, and a white person had offered $7500 for it, when-appellant Mays bought it for $9,950. Performance of the restrictive agreement, instead of maintaining the value of property in the 2200 block, will actually depress it. The court should not enforce the agreement and defeat its most obvious purpose.
This is the more clearly true because enforcement of the agreement will not accomplish its other purpose. Since (1) the area immediately west of the 2200 block is largely occupied by colored people; (2) the block immediately south of the 2200 block is no longer restricted, and colored people have begun to buy homes there; (3) the 2200 block itself will cease to be restricted next year; (4) property in this block is more, valuable to colored purchasers than to white purchasers; and (5) as a witness testified without dispute, the “trend” in the neighborhood is toward colored ownership and occupancy; it is evident that the neighborhood has lost the exclusively white character which the agreement sought to preserve, and that enforcement of the agreement during the short remainder of its life will not restore that character. As we said in Hundley v. Gorewitz, “The trend is unmistakable, its effect is apparent, and * * * to grant an injunction enforcing the covenant would merely depreciate all the property in the block without accomplishing the purpose which originally impelled its making, while to deny an injunction will leave all of the properties with a value commensurate to the conditions as they now exist. In these circumstances the equities require that we refuse injunctive relief and leave the parties to such remedies as they may have at law.” 1
(2) The effect of an injunction upon appellant Mays and her family must be considered. The family consists of appellant herself, a government employee; three sisters who are employed in Washington; and four nieces who attend school there. A house which they formerly rented was sold and they had to move. They had to break up their family, store their furniture, and rent rooms in various places until they bought the house in suit. According to appellant’s undisputed testimony she “accepted this proposition because of an absolute lack of other available properties.” To force her and her family to leave their home during the present acute housing emergency will subject them to very great hardship. It will probably compel them again to separate and rent such rooming space, if any, as they can find, and it may compel some of them to leave the District of Columbia and its vicinity. The chances are much against their being able, without months of search, to find a single house or apartment here that will accommodate them as a family.1a None of the cases on which the court relies, in which agreements against sales to Negroes were enforced, involved any circumstance even remotely resembling this. In accordance with the familiar principle of “balancing equities,” the fact that an injunction will cause extreme hardship to the defendant without commensurate benefit to the plaintiff is in itself a sufficient reason for denying an injunction.
(3) The restriction in suit was created by a contract among the owners of some 32 houses and lots. None of the appellants was a party to that contract. None of them has ever agreed to be bound by it. Whether they should be required to conform to this contract which they never made involves more than the balancing of particular equities. It involves a question of general policy. The question is not whether the operators of a public or private housing development,2 or other per*875sons, may voluntarily select their tenants or their purchasers on the basis, among other things, of color. The question is whether a person who wishes to sell his house to a Negro and has contracted to do so, and has never contracted not to do so, should be prevented by a court from performing his contract because one of his predecessors in title once contracted with other property-owners that their property should not be sold to Negroes.
Since housing is a necessity of life, as an original question a contract of 32 property-owners that they and their successors will not sell houses to Negroes would seem to stand on much the same plane as a contract of 32 grocers that they and their successors will not sell food to Negroes.3 The ultimate purpose of the combination was the advantage of its members, but its immediate purpose was to withhold a necessity from many persons by limiting the capacity of owners to transfer their property. As an original question, the contract in suit would seem to be an unreasonable restraint on alienation and plainly contrary to public policy. The Committee on Negro Housing of the President’s Conference on Home Building and Home Ownership said in its Report in 1932: “Segregation * * * has kept the Negro-occupied sections of cities throughout the country fatally unwholesome places, a menace to the health, morals and general decency of cities, and ‘plague spots for race exploitation, friction and riots.’ ”4 It would seem clear, as an original question, that a court of equity would have nothing to do with such a contract unless to prevent its enforcement or performance.
(4) The decided cases do not clearly answer tile question of policy on which, apart from the particular equities, this case turns. As long ago as 1917 the Supreme Court held in the Buchanan case that racial zoning of streets, by statute or ordinance, was unconstitutional.5 The Court held in 1926, in the Corrigan case, that an injunction to prevent a party to a contract like the one before us from conveying in breach of his contract did not violate the Constitution or the laws of the United States.6 But the Court had no occasion to decide, and it expressly refrained from deciding, whether or not a contract of this sort was “void because contrary to public policy” or was “of such a discriminatory character that a court of equity will not lend its aid by enforcing the specific performance of the covenant.” The Supreme Court has never decided whether this sort of contract is enforceable against anyone.
It would seem to be unsound policy for a court, in (he exercise of its equitable discretion, to enforce a privately adopted segregation plan which would be unconstitutional if it were adopted by a legislature. Moreover the Supreme Court has recently said that “discriminations based on race alone are obviously irrelevant and invidious.” 7 That case dealt with contracts between employers and a union which represented employees. The Court held that “Congress plainly did not undertake to authorize the bargaining representative to make such discriminations.” For the current fiscal year Congress has authorized expenditure of $500,000 by the President’s Committee on Fair Employment Practice.8 Congress is the authoritative exponent of the public policy of the District of Columbia. I can see no sufficient distinction, from the point of view of policy, between discrimination in employment and discrimination in housing.
It is true that in 1924, in Corrigan v. Buckley,9 this court restrained a party to a contract like the one before us from making a conveyance in violation of his contract. And this court has enforced covenants in deeds, of like tenor, against subsequent owners of the land who, as far as appears, were not parties to the deeds.10 It does not follow that a mere contract *876like the one before tis, against selling land t.o Negroes, is enforceable against a subsequent owner of the land who has notice of the contract but is not a party to it.11 Whether it is so enforceable is a question which this court has never had occasion to decide until now.
There is a substantial difference between the policy of enforcing against subsequent owners a restraint on alienation created by a deed and the policy of enforcing against them a restraint on alienation created only by a contract, though either policy, in my opinion, is thoroughly bad. If the restraint can be created only by a deed, that fact provides a substantial limitation on its spread; but if neighboring landowners, by merely making and recording a contract, may impose a restraint on alienation which is enforceable against subsequent landowners, unlimited quantities of land may rapidly be subj ected to the restraint. By holding that such a restraint may be imposed in such a way this court is not simply following precedent. It is adding an unfortunate extension to an unfortunate doctrine.
(5) Quite aside from the fact that our Corrigan decision was probably unsound when it was rendered,12 and the fact that it would not cover this case even if general conditions in the District of Columbia had remained the same, I think it is quite inapplicable today because general conditions have not remained the same. It was a decision on a question of policy. Questions of policy have no meaning in a vacuum but relate to particular situations. The housing situation in the District of Columbia has changed since 1924. Although the first World War created a temporary housing emergency, by 1924 the Supreme Court was prepared to take judicial notice of the fact that the emergency had ceased.13 It is a matter of common knowledge that the emergency is now acute14 and that the shortage of decent housing, or any housing, for Negroes is particularly acute.15 We cannot close our eyes to what is commonly known. The conditions in *877which many of the 187,000 Negroes in the District of Columbia have long been obliged to live are now worse than ever. Since restrictive contracts and covenants are among the factors which limit the supply of housing for Negroes and thereby increase its price, it cannot be sound policy to enforce them today, whatever may have been true in 1924.
In order to work people must live within reach of their work, and in order to work eflcctively they must live in some degree of comfort. Requiring Negroes to live according to their common color instead of their individual capacities hampers the war effort by interfering with their employment. Congress has declared in the Rent Control Act of the District that it is “the policy of the Congress during the existing emergency to prevent * * * practices relating to housing accommodations in the District of Columbia which may tend to *878increase the cost of living or otherwise impede the national-defense program.”16 “Race restriction agreements, undertaking to do what the state cannot, must yield to the public interest in the sound development of the whole community.” 17
(6) The majority opinion does not and consequently, on analysis, the concurring opinion does not contend that the Supreme Court has determined either the question of particular equities or the question of general policy on which this case turns. If, as the majority say, decisions of our court have determined those questions adversely to appellants, we should overrule the decisions. We cannot turn the Supreme Court’s power of review into a duty or our duty of reinterpreting the law into a privilege.
77 U.S.App.D.C. 48, 50, 132 F.2d 23, 25.
Note 15 infra.
“Much of the recent public housing is interracial in theory and increasingly so in fact, notably in Los Angeles, Pittsburgh, and Chicago.” Edwin R. Embree, Race Relations Balance Sheet, p. 9; reprinted from Review for the Two-Year Period, 1942-1944, of the Julius Rosenwald Fund.
At least if it be assumed that the motive of the grocers, as of the property-owners, is to exclude Negroes from their neighborhood.
Negro Housing (1932) pp. 45, 46.
Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1938C, 210, Ann.Cas.1918A, 1201.
Corrigan v. Buckley, 271 U.S. 323, 832, 46 S.Ct. 521, 524, 70 L.Ed. 969.
Steele v. Louisville & Nashville Railroad Co. et al., 65 S.Ct. 226. In a concurring- opinion Mr. Justice Murphy said: “The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color.”
This Committee was created by the President in 3941. and reconstituted in 1943. Exec. Order No. 9346, May 27, 1943.
55 App.D.C. 30, 299 E. 899, appeal dismissed 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969.
e. g., Torrey v. Wolfes, 56 App.D. C. 4, 6 F.2d 702.
Traditionally a covenant does not “run with the land” so as to be enforceable at law against subsequent purchasers unless there is some “privity” between the. parties to the covenant, as in the case- of grantor and grantee or lessor and lessee. Tiffany, Real Property, 3d Ed., § 851. It is true that, despite the absence of “privity,” contracts between, neighboring landowners which regulate only the use of land and make no attempt to impose restraints on its alienation have been enforced in equity against subsequent purchasers with notice. Thus in CCastleman v. Avignone, 56 App.D.C. 253, 12 F.2d 326, a contract with respect to a building-line was enforced against a purchaser. Cf. Tiffany, Real Property, 3d ed., § 858. But no case has been called to our attention in which any court, on any theory, has -enforced against anyone but a contracting party a contract like the one in suit, which attempts to create a restraint on alienation and is not embodied in a deed or lease. In Meade v. Dennistone, 173 Md. 295, 196 A. 330, 114 A.L.R. 1227, the contract which was enforced against purchasers forbade use of land by Negroes but did not forbid transfer to Negroes. The contract before us forbids both use and transfer. In my opinion neither prohibition should be enforced.
When Mr. Justice Rutledge was a member of this court he expressly reserved his opinion on the question whether eovenánts against selling land to Negroes were valid. Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 50, 132 F.2d 23.
Chastleton Corp. v. Sinclair, 1924, 264 U.S. 543, 548, 549, 44 S.Ct. 405, .68 L.Ed. 841.
The Rent Control Act. of the District of Columbia provides: “It is hereby found that tlie national emergency and the national-defense program (1) have aggravated the congested situation with regard to housing accommodations existing at the seat of government; * * * (3) have rendered or will rendor ineffective the normal operations of a free market. in housing .accommodations; and (4) are making it increasingly difficult for persons whose .duties or obligations require them to live or'work in the District of Columbia to obtain such accommodations. * * * ” 55 'Stat. 788, D.C.Code 1940, Supp. III, § 45 — 1601; December 2, 1941.
“The already overcrowded Negro quarter's had to squeeze in the newcomers. The results here must be seen to be believed. Not only houses have been subdivided, but small rooms * * * have been partitioned with cardboard to absorb more tenants * * * What can, for instance, our very competent Health Department do about it? The only thing it can do is put the tenants on the street because there is not, and has not been for six months, a single available Negro dwelling in Washington, except a few for in-migrant war workers. * * * The crowding in the slums of the District *877lias also been intensified by the fact that not only housing but the areas formerly occupied by Negroes have decreased.” Agnes E. Meyer, Negro Housing: Capital Sets Record for United States in Unalleviated Wretchedness of Slums. Washington Rost, Feb. 6, 1014, See. II, p. 1.
“The present war housing program * * * seems to provide adequately for white, in-migrant war workers. In fact there may be a surplus of immediately needed dwellings for white in-migrant war workers. It does not provide, however, for residents of the District of Columbia who are not in-migraut war workers. For Negroes * * * it does not provide adequately even in terms of in-migrant war workers. So there should be an increase in the allocation of dwellings for Negroes. * * * The need is urgent and that need will continue.” Annual Report of the National Capital Housing Authority for the fiscal year ended Juno 30, 1943, p. 7.
The following quotations are from Investigation of the Program of the National Capital Housing Authority: Hearings before a Subcommittee of the Committee on the District of Columbia, United States Senate, 78th Congress, 2d Session, on S. Res. 184 and S. 1009 (1944):
“Housing conditions among Negroes, as it relates to the war effort, is a critical social and economic problem in Washington * * *Part 2, p. 208. From Resolution of the War Housing Center Advisory Committee, December 1943.
“I have a negro maid who has five little children. Her husband makes $30 a week and she does day work, at about $4 or $4.25 a day. She lives in one room with those five children. * * * I have called every place in this city and I cannot get a place for her to live.” Part 3, p. 447. Statement of Mrs. Leslie B. Wright, Executive Secretary,, Northwest Citizens’ Council, Washington, D. C. , and Member of the Legislative Committee of the Federation of Women’s Clubs; March 10, 1944.
“ * * * From the information gained by the U Street Council about 2 months ago, it was shown that there were no apartments and houses available for Negro residents.” Part 3, p. 775. Statement of Marjorie Baltimore, U Street Neighborhood Council, Washington, D. C.; April 5, 1944.
«* * * j am a member 0f the advisory committee on the War Housing Center here * * *. There are one-bedroom apartments to be found. There are practically no dwelling units available for larger families * *, * speaking of white families, and none whatever where there is one bedroom, or more, for Negro families.” Part 3, p. 782. Statement of Arthur Stein, President, United Federal Workers of America; April 6, 1844.
“It is generally recognized that there are practically no vacancies today for the Negro citizen of any income level in Washington. Hundreds of Negro war workers and resident families, evicted through no fault of their own, ,are separated and doubled up in already overcrowded dwellings * * *. The widespread use of restrictive covenants in the District constitutes a distinctive feature which distinguishes the housing problem of Negroes from that of all other racial groups. Confined by these intangible but almost impregnable barriers, Negroes * * * are discriminated against in the housing market by being thus barred from bidding in the open market for homes.” Part 4, pp. 1110-1111. Statement of Mrs. Robert G. McGuire, Chairman, Emergency Committee on Housing in Metropolitan Washington; May 19, 1944.
“(1) The Negro population of the area has rapidly increased;
“(2) Various developments, such as roads, public buildings, housing projects, etc., have reduced the areas heretofore open to Negro occupancy;
“(3) There is evidence of actual reduction in the number of dwelling units available to Negroes.” Part 4, p. 1129. Interim Report of the Study Subcommittee of the Emergency Committee on Housing in Metropolitan Washington; May 19, 1944.
“The main reason why Negroes have *878not moved from these congested areas into more adequate neighborhoods is the widespread use of covenants, agreements, and neighborhood resistance to the occupancy by Negroes of undeveloped and developed areas. The effect of these restrictions has been to limit artificially the housing market for Negroes and cause them to pay higher prices for the same or less value and services. This feature makes the housing problem of Negroes distinctive from that of any oilier racial group.” Part 4, p. 1137. Statement of Mrs. Pauline R. Coggs, .Executive Secretary of The Urban League and Chairman of the Research Committee of the Emergency Committee on Housing in Metropolitan Washington; May 19, 1944.
“Since 1940 * * * there has been intensive overcrowding even among the comparatively well-to-do * * *. Even in 1934 * * * there was a shortage of low-rental and moderate rental dwellings. This situation was especially acute among the Negroes * * *. Recently the assistance given by the Federal Housing Administration has somewhat relieved the situation in the higher-rental brackets. But the completion of only 97 houses in lower-rental brackets * * * is not very encouraging.” Part 5, p. 1404. Concluding statement and summary by John Ihlder, Executive Officer, National Capital Housing Authority; Oct. 5, 1944.
In the entire Hearings, I have found no statements which substantially controvert those which I have quoted. There are many others to similar effect.
55 Stat. 788, D.C.Code, 1940, Supp. IH, § 45 — 1601, Dec. 2, 1941.
Traynor, J., concurring, in Fairchild v. Raines, Cal.Sup.1944, 151 P.2d 260, 269.