United States v. Grainger, 346 U.S. 235

Syllabus.

UNITED STATES v. GRAINGER.

NO. 634. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.*

Argued May 4--5, 1953.-Deeided June 15, 1953.

I. The running of the general three-year statute of limitations on federal pros<'l>utions for crimes, now 18 U. S. C. (Supp. V) § 3282, was suspended by the Wartime Suspension of Limitations Act, 18 U. S. C. (Supp. V) § 3287, as to violations, in 1945 and 1946, of the false claims clause of the false Claims Act, now 18 U. S. C. (Supp. V) § 287. Pp. 240-244.

(a) The offenses charged here of attempting to obtain payments from the Commodity Credit Corporation in amounts based upon knowingly false certifications to that corporation by the accuwd that certain purchases of wool had been made by him when he knew that no such purchases h,,d been made by him or, at least, that no such purchases had been made by him at prices as high as those he certified that he paid, are offenses of a pecuniary nature. Pp. 240-241.

(b) Offenws which occurred in 1945 or 1946, preceding the President's proclamation of December 31, 1946, declaring that the hostilities of World War II terminated on that day, come within the period to which the Suspension Aet applies. P. 241.

(c) Fraud upon the United States is an essential ingredient of ,·iolations of the false claims clause of the False Claims Act, 18 U. S. C. (Supp. V) § 287. Pp. 241- 243.

(d) In the Wartime Suspension of Limitations Act, the phrase 0invo1ving fraud. , . in any manner" makes the Act applicable to offenses which are fairly identifiable as those in which fraud is an e.,sential ingredient, by whatever words they be defined; it d0<:s not limit the application of the Act to such offenses as Congress has denominated as "frauds" by using that very word or one of its derivatives. The same reasoning applies to conspfracies to commit such offenses. Pp. 243-244.

2. The Wartime Suspension of LimitAtions Act had the effcet of extending through 1952 the time for the prosecution of the offenees to which it applied. Pp. 244-246. 3. In relation to those offenses here involved which were committed

in 1945 and 1946, during the period of suspension, the general three-year limitat.ion prescribed by 18 U. S. C. (Supp. V) § 3282 began to run for the first time on January I, 1950, and expired December 31, 1952. Pp. 246-247.

4. The codification of the Criminal Code, June 25, 1948, effective September 1, 1948, did not change the situation respecting the exten.sion through 1952 of the time for prosecuting the offenses to which the Wartime Suspension of LimitA1ions Act applied. Pp. 247- 248.

5. The Wartime Suspension of Limitations Act is applicable to the indictments here involved for offenses committed in 1945 and 1946 and the United States could thus prosecute them in 1952, except that (I) this conclusion does not apply to any overt act alleged in No. 636 to have been committed in 1947, and (2) this conclusion does not apply to overt acts set forth in paragraphs 2, 3, and 4, under Count Two of the Indictment in No. 636, which are not explicit enough to show that the i&"'tlance or endorsement of certain cheeks there described constituted an attempt to defraud the United States. Pp. 236- 248; p. 237, n. I.

Reversed and remanded.

John F. Davis argued the cause for the United States. With him on the brief were Robert L. Stern, then Acting Solicitor General, Beatrice Rosenberg and John R. Wilkins. Walter J. Cummings, Jr., then Solicitor General, was on the Statement as to Jurisdiction.

Jack J. Miller argued the cause and filed a brief for appellee in No. 634.

John V. Lewis argued the cause for appellees in Nos. 635 and 636. With him on the brief was Clyde C. Sherwood.

MR. JusTici: BURTON delivered the opinion of the Court.

These cases were argued immediately following No. 548, Bridges v. United States, ante, p. 209. They concern the

Wartime Suspension of Limitations Act which we found inapplicable to the offenses stated in the Bridges indictment. These cases, however, involve different offenses and we hold the Suspension Act applicable to the instant indictments for offenses committed in 1945 and 1946 and we hold that the United States may thus prosecute them in 1952.1

The principal questions here are: (1) whether the Wartime Suspension of Limitations Act' suspended the running of the general three-year statute of limitations' as to violations of the false claims clause of the False Claims Act,' and (2) if so, whether the indictments for such offenses, found in 1952, were timely. For the reasons hereafter stated, our answer to each question is in the affirmative.

These indictments were filed in 1952 in the United St.ates District Court for the Northern District of California. The indictment in No. 634 charges appellee Grainger, in 16 counts, with having "unlawfully, know-

' This conclusion does not apply to any overt act alleged in No. 636 to have been committed in 1947. Any such act was committed after the President's proclamation of the termination of hostilities December 31, 1946, 3 CFR, 1946 Supp., 77-78, and, therefore, after the period to which the Suspen,ion Act applied. United States v. Smith, 342 U. $. 225.

The indictment in No. 636 is not explicit enough as to the overt acts set forth in paragraphs numbered 2, 3 and 4, under Count Two, to show that the i&"Uanee or endon;ement of certain checks there de-scribed constituted an attempt to defraud the United States. The Suspension Act, accordingly, does not appear to be applicable to them. These items have not been separately discussed by the parti•.s, and are mentioned here to avoid the application of our general conclusions to them in the absence of further consideration.

• 18 U.S. C. (Supp. V) § 3287. ' 18 U.S. C. (Supp. V) § 3282.

• § 35 (A) of the Criminal Code, 52 Stat. 197, 18 U. S. C. § 80, now 18 U. S. C. (Supp. V) § 287.

ingly, wilfully and fraudulently" presented for payment to the Commodity Credit Corporation, at various times in 1945, claims upon that corporation certifying that appellee had made certain purchases of wool at certain prices, knowing such claims "to be false, fictitious and fraudulent . . . ." It charges, further, that appellee knowingly and falsely certified to the Commodity Credit Corporation that he had paid higher prices for the wool than he actually did.'

The indictment in No. 635 charges appellees Clavere and Kennedy, in 15 counts, with like offenses committed in 1946, including several claims based upon their false certifications of purchases of wool when they knew that they had made no such purchases.

The indictment in No. 636 charges appellees Clavere and Kennedy, in one count, with conspiring to make false, fictitious and fraudulent claims upon the Commodity Credit Corporation• by making somewhat comparable claims in 1946 and 1947. A second count charges appellees Clavere, Kennedy and Shapiro with engaging in a like conspiracy, with overt acts committed in 1946.'

Appellees moved to dismiss the indictments on the ground, among others, that ea.ch was barred by the applicable statute of limitations. The District Court granted the motions and dismissed the indictments. That

• Commodity Credit Corporation was a Delaware corporation in which the United States was a stockholder. In 1945 and 1946 it served as an agency of the United States in making loans or purchases in connection with the expansion of the production of many com• modities. 15 U.S. C. §§ 7!3-713a-9; I CFR, 1938, 659-678. See also, Commodity Credit Corporation Charter Act of June 29, 1948, 62 Stat. 1070, as amended, 15 U.S. C. (Supp. V) §§ 714-7140.

• § 37 or the Criminal Code, 35 Stat. 1096, 18 U. S. C. § 88, now 18 U.S. C. (Supp. V) § 371. See also, 52 Stat. 197, 18 U.S. C. § 83, now 18 U. S. C. (Supp. V) § 286.

*1Sec note l, supra.*

Opinion of the Court.

court's unreported opinion concludes with the following statement:

"Accordingly, the Court holds that, as to all three indictments, the three-year statute of limitations fixed by 18 USC section 582 and its successor, 18 USC [Supp. VJ section [3282), applies. Because the statute that the various defendants are charged with having violated or with having conspired to violate does not 'denominate' the acts proscribed therein as 'frauds,' or does not, in so many words, have as an 'ingredient' a 'defrauding or an attempt to defraud the United States,' neither the Wartime Suspension of Limitations Act of 1942 nor its successor of 1948 can apply."

The "Gnited States appealed directly to this Court, under 18 U. S. C. (Supp. V) § 3731.'

• "An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in tho following instances:

"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon tJ1e invalidity or construction of the statute upon which the indictment or infonnation is founded.

"From tho decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy...." 18 U. S. C. (Supp. V) § 3731.

In its notices of appeal, the United States said merely that it appealed from the several orders dismissing the respective indictments. In its combined statement of jurisdiction it relied upon its right to appeal from a judgment sustaining a motion in bar where the defendant has not been put in jeopardy. The Government, however, now s1Jggests that its appeals are based upon the District Court's construction of the statutes upon whieh the indictments are founded and it seeks to restrict us to the consideration of the District Court's view of the relation between those statutes and the Suspension Act, without reference to the claim of appellees that lhe extension of tim~ pro,•ided by the Suspension Act expired before the indictments were

1. The running of the general three-year statute of limitations • was suspended by the Wartime Suspension of Limitations Act10 as to violations, in 1945 and 19.t,8, of the false claims clame of the F'alse Claims Act."

A. While the offenses charged here are not spelled out in detail, they are sufficiently clear at least to show

found. We treat the appeals as presenting both issues. See Unite4 State., v. Borden Co., 308 U.S. 188; United States v. Curtiss-Wright Corp., 299 U. S. 304. See also, United States v. Hark, 320 U. S. 531, 5.'l6; Unued .States v. Goldman, 2i7 U.S. 229, 236-23i; United States,•. Barber, 219 U.S. i2, i8; and United State; ,,. Ki>sel, 218 u. s. 601,606.

• .. Except as otherwise expra-sly provided by law, no pen;en sJ1.all be prosecuted, tned, or punished for any offense, not <.apital, unless the indictment is found or the information is instituted within three years next after such offense shall have ooen committed." 18 U.S. C. (Supp. V) § 3282.

attempts to obtain payments from the Commodity Credit Corporation in amounts based upon knowingly false certifications to that corporation by the accused that certain purchases of wool had been made by him when he knew that no such purchases had been made by him or, at least, that no such purchases had been made by him at prices as high as those he certified that he paid. The offenses charged are, therefore, of a pecuniary nature and we are not required in these cases to pass upon the contention, discussed in the Bridges case, that, in order for the Suspension Act to apply to them, the offenses not only must involve defrauding the United States or an agency thereof, but they also must be of a pecuniary nature or of a nature concerning property.

B. The offenses with which we concern ourselves here are alleged to have occurred in 1945 or 1946. They, therefore, precede the President's proclamation of December 31, 1946, which declared that the hostilities of World War II terminated on that day." The offenses thus come within the period t-0 which the Suspension Act applies. United States v. Smith, 342 U. S. 225.

C. Fraud upon the "Cnited States is an essential ingredient of the offenses charged. The offenses charged in Cases No. 634 and No. 635 are violations of the false claim$ clause, as distinguished from the false statement clause, of the False Claims Act. Such false claims clause provides that-

"Whoever shall ... present ... for payment or approval, to ... any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States ... or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent ... shall

"3 CF!t, 1946 Supp., 77-78.

be fined not more than $10,000 or imprisoned not more than ten years, or both." 52 Stat. 197, 18 U.S. C. § 80, now 18 {;', S. C. (Supp. V) § 287.

The indictments show that it is the false claims clause that is involved. And, what is more important to the issue here, the offense defined by that clause is the kind

of offense at which the Suspension Act is directed.

The Suspension Act provides that-

"When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not . . . shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress." 18 U. S. C. (Supp. V) § 3287.

In determining the kind of offenses to which that section applies, we have the benefit of the conclusion heretofore reached by this Court that such offenses are limited to those which include fraud as an essential ingredient." The next question is what constitutes the required fraud. Our problem is simpler than in the Bridges case and in those cases which involve violations of the fake sta.tement clause of the False Claims Act. In those cases there is a question whether the mere making of a false statement in the connection specified necessarily includes the ingredient of fraud required by the Suspension Act. In the instant cases that question is not involved because the offenses include more than that. The substantive offenses here charged include the making of claims upon the Government for payments induced by knowingly false repre-

"United States,,. Scharton, 28.5 U. S. 518; United Srotes v. McElvain, 272 U. S. 633; United States v. Noveck, 271 U. S. 201.

sentations--<:onstituting violations of the false claims clause of the False Claims Act. The statement of the offenses here carries with it the charge of inducing or attempting to induce the payment of a claim for money or property involving the element of deceit that is the earmark of fraud." The false statement clause contains no such ingredient. The difference between the clauses is emphasized in the 1948 codification which has placed the former in § 287 and the latter in § 1001 of 18 U.S. C. (Supp. V) .

We conclude that the Wartime Suspension of Limitations Act has added time within which to prosecute the wartime frauds involved in violations of the false claims clause of the False Claims Act.

Appellees have placed emphasis also upon the following statement by Mr. Justice Roberts, speaking for the Court, in United States v. Scharton, 285 U. S. 518, 521-522:

"Moreover, the concluding clause of the section, though denominated a proviso, is an excepting clause and therefore t-0 be narrowly construed. United States v. M**cElvain, 272 U. S. 633, 639. And as the section has to do with statutory crimes it is to be liberally interpreted in favor of repose, and ought not

"The false statement clause of the False Claims Act, which was in,•olved in Marzani v. United State,, 83 U.S. App. b. C. 78, 168 F. 2d 133, affirmed by an equally divided Court, 335 U. S. 895, 336 U. S. 922, provides merely that "whoever shall ... make ... any false or fraudulent statements or representations ... in any matter within tho jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder . .. shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 52 Stat. 197, 18 U. S. C. § 80, now 18 U. S. C. (Supp. V) § 1001. Cases arising under that clause need not be discussed here and the references made in them to offenses arising generally under the False Claims Act should be read as referring to its false statement clause rather than to its false claims clause or to the Act as a whole.

to be extended by construction to embrace so-called frauds not so denominated by the statutes creating offenses."

Appellees argue that this language limits the Suspension Act not merely to those offenses in which fraud upon the United States is an essential ingredient, but to such of those offenses as Congress has "denominated" as "frauds" by using that very word or, at least, one of its derivatives.

We believe that Congress sought by its phrase "involving fraud . . . in any manner" " to make the Suspension Act applicable to offenses which are fairly identifiable as those in which fraud is an essential ingredient, by whatever words they be defined, and that Congress did not seek to limit its applicability to such of those identifiable offenses as also are labeled with a particular symbol. In the false claims clause of the False Claims Act, Congress met the requirement by identifying the offense as that of making "any claim upon ... the United States ... knowing such claim to be false, fictitious, or fraudulent ...." " The combination of either falsity, fiction or fraud with the claim is enough. The same reasoning applies to a conspiracy to make false claims, as alleged in No. 636.

2. The Wartime Suspension of Limitations Act extended the time for finding the indictments through 1952.

A. The Suspension Act had the effect of extending through 1952 the time for the prosecution of the offenses to which it applied.

When enacted August 24, 1942, during the first year of World War II, it provided for the inception and expira-

' ' 18 U.S. C. (Supp. \I) § 3287. "52 Stat. 197.

tion of its effect on existing statutes of limitations as follows:

". .. the running of any exi$ting statute of lilnitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate.. .." (Emphasis supplied.) 56 Stat. 747-748.

There is no doubt as to the meaning of the word "running" in that enactment. The running of any existing statute of limitations simply was to be suspended until June 30, 1945-that is, for about three years-unless such suspension was cut short by Congress or t.he President. The obvious purpose was to add about three years ( or a shorter wartime period) to the time otherwise available for the prosecution of certain wartime frauds.

The present difficulty was introduced by the amendment of July 1, 1944. It added not only specific language as to war contracts but it changed the expiration clause to read-

"The running of any exi$ting statute of limitations applicable to any offense ... (1) involving defrauding ... the United States ... or (2) committed in connection with the .. . performance . . . of any contract . .. related to the prosecution of the present war .. . shall be suspended until three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress ...." (Emphasis supplied.) 58 Stat. 667.

The effect of this language, when read with the Act of 1942, is inescapable. The phrase as to "running of any existing statute of limitations" remains precisely as it was in 1942, but the expiration date of the suspension is changed from June 30, 1945 (or an earlier date to be designated by Congress or the President), to a new date. The new date is not fixed as one to come three years later. It is made a movable date which can occur only three years after the date of the termination of hostilities as proclaimed by the President or Congress. Under the 1942 Act, the running of the general three-year statute was suspended for three years or less. Under the 1944 amendment, the running is just as clearly suspended until three years has expired after the termination of hostilities.

The precise language of the July 1, 1944, amendment was reenacted October 3, 1944, when a clause was added dealing with offenses connected with the handling of property under the Surplus Property Act of 1944, 58 Stat. 781. The language was then carried into 18 U. S. C. § 590a.

When the President, December 31, 1946, proclaimed the termination of hostilities of World War II, 3 CFR, 1946 Supp., 77-78, this automatically caused the resumption of the running of statutes of limitations on December 31, 1949. Accordingly, in relation to the instant offenses committed in 1945 and 1946, during the period of suspension, the general three-year limitation prescribed by 18 U. S. C. (Supp. V) § 3282 began to run for the first time on January 1, 1950, and expired December 31, 1952.

"These cases clearly illustrate that the suspension statute was not intended to and should not embrace offenses committed subsequent to December 31, 1946. It applies only to offenses committed between August 25, 1939, and December 31, 1946. For those offenses which occurred between the date of the 1942 Act and the cessation of hostilities, Congress' intention was to give the Department of Justice six years from the latter date to investigate and prosecute. For those offenses which occurred before the date of the 1942 Act, Congress' intention was to give the Department three years after the cessation of hostilities plus whatever portion of the regular three-year limitations' period had not yet run when the 1942 Act was passed." P. 231.

This issue was before the Court in No. 527, United States v. Klinger, which this day is affirmed by an evenly divided Court, 345 U.S. 979. In that case, however, there was presented not only this issue but also an issue as to whether the offense charged was one involving fraud of a pecuniary nature upon the United States.

B. The codification of the Criminal Code, June 25, 1948, effective September 1, 1948, did not change the situation. It repealed the Suspension Act, as amended October 3, 1944, by reference to it as§ 28 of Chapter 479, 58 Stat. 781, and as 18 U.S. C. § 590a. 62 Stai. 862,868. At the same time, Congress substantially reenacted the Suspension Act as 18 U.S. C. (Supp. V) § 3287. 62 Stat.

828. The appellees point out that the saving clause in § 21 of the Act of June 25, 1948, 62 Stat. 862, saves only substantive rights and liabilities then existing under the

repealed sections. They suggest also that any extended periods of limitation resulting from the Suspension Act were thus repealed as of September 1, 1948, leaving applicable the general three-year statute of limitations which would terminate the period for prosecution September 1, 1951. We do not agree with that suggestion. The reenactment of the Suspension Act as § 3287, June 25, 1948, effective September 1, 1948, like the reenactment of the general three-year statute of limitations as § 3282, carried with it the purpose of the codification. That purpose makes §§ 3287 and 3282 applicable not merely prospectively to subsequent offenses, but forthwith to existing offenses in the same manner and with the same effect as if the reenacted provisions had remained continuously in effect in their substantially identical precodification form. Codification contemplates, implies and produces continuity of existing law in clarified form rather than its interruption.

The motions to dismiss the indictments should have been denied. The judgment of the District Court therefore is reversed and the cause is remanded for further proceeding$ consistent with this opinion.

MR. JuSTIC& BLACK, MR. JUSTICE FRANKFURTER and MR. JUSTICE DouGLAS, adopting the reasoning in the opinion of Judge Learned Hand in United States v. Klinger, 199 F. 2d 645, would affirm the District Court in dismissing these indictments.

MR. JUSTICE .JACKSON took no part in the consideration or decision of this case.

rr AL. v. J.\CK:-iOX.

BARROW:,,

Cl:RTIOIIARI TO THE D1$T••JCT C:Ol RTOF APPEAL OF C.Wt-ORNIA, ShCOND APPf,l,LAT& DISTRICT.

June 15, 1\153.

:,;o 517. Argu,-d Apnl 28 29, 1%3.-llmdNl

•nd ocn,panr) of re1I

The mfon:ffllfot or a ,ov..,..nlbr forbi,ldm,:"""an i.ction at law m a Jo1W.t"' rourl to est.at~ by non-Caucasrnn.", recover cb~ from a <0-<0,-.nantor for a bnvh or 1h, cottiunt is barred by th• Fourteenth Amrndmrnt of th• ~'rdrral CoD! t1tutt0n Pp 251 :.?60.

(al The action of a tate rourt,n thus san<'t1onml{ a rrtrulN"•

b"1nct1"-e rt1,·tn.tnt wouM COMt.itut~ •tAh.~ actton witlwa tM' pro-, lub1t1on or the ~oortttntb .\mtndnu nt P

O,) s,stP aeuon in allo111na ,Lt1n!11,tN for hrt'ath of At'O\'f'JUnl

lO use and ore,.ap\ thcir pro~rty not to pt•nnit nun-Ca11r.i::HaM,rould d,pnve RJth non O.u<1L<nM, umdrntifi,,d but 1,l,nt1h11hlt, of N(ual prola-1,on or the L,,.,.111 viol,1,on or 1h• fourltfflth Atllffldmml P 2M

(r/ Tin pnn<iple th•I a J• r--On «n11<1L rh.,ltrng• 1he N>111htu tio ,hty or a stalute uni""' be •ho•• that he h1moclf '" mjur,d Ly 11..- r, h.u no apphmUon totht 1n<ttanc ea!(", in .,.h1ch

ret1JXlndenth a ha.r;mmt l•-en&p1ns- •u•d forr,,rpondentdarua,:"" would~•taling constm,u,Sll,t~(), aand d,rttt ,n pockt•tuook lllJUry to hn. 1'11. 25-1 2116.

t'ft r the perufur of 1ru1....,., t~ """'°°"

wb1rh umlnlte tht' rule- <leny111g s1nnd1ng to ra1 ·<· nnnrhc-r'1 ron•hkb IS onJy a mlr of practitt al'f': out1""Ubtd

5tituttonal, by th• """'' IA> r,roterl th~ fundanu nul right, "h1rh would

P derut-iJ by ptrm.itt102 th•• dam,1.gest('lion tu bt m:1int.Alne<l ~;

(e) Tfw prtnc111lc th111 the r,~ht In <'QU11 prot,,•t,on of tht lnw•

13 a p,t-rson:il"' :nibt.ii::1,ra.n1 dt,, ·ae mdnid l rat r t. D gro11ll$ or rlttli-.CS, IH oot ht•rc vmlated, 11mcf' it is not non• Cauca,ii1ms u a rroup ,ho,, rid,• re a rt..l th,, def1 •i,.. ~ l\fl'.C'5 nrt1on, but 1h<' nRhts or part1ru1ar non-Cm1casi:tn woultl•be,...,. or r, tn,tc-1 l.,.n,l Pp cl.'i!}-:ltiO.

(f) The prwwon or Art. I, § JO of tho Federal O,n,,itut10n,

tllllt1tatJOn •·,;oof Contraela,"StAte ,h,11 ,.•.. not))311! violated any. b)· th~l•w rerusalimp11irin1 of a otate the cooOt.li- rt

Counsel £or Parties. 346 U.S.

to enforce a racial restr1etl\1e covenant, sioce that provision is directed again.st legislative act,ion only, not against the judgments of courts. P. 260.

(g) The plaintiff• in an action for damages £or breach of a racial restrictive covenant are not denied due process and equal prote<:tion of the laws by the state court's refusal to enforce the covenant., ~ince the Constitution confers upon no individual the right to demand action by the State which would result in the denial of equal protection of the lawi; to others. P. 200. 112 Cal. App. 2d 534, 247 P. 2d 99, affirmed.

Petit.ioners sued respondent in a California state court to recover damages for an alleged breach of a racial restrictive covenant. The trial court sustained a demurrer to the complaint. The District Court of Appeal affirmed. 112 Cal. App. 2d 534, 247 P. 2d 99. The State Supreme Court denied a hearing. This Court granted certiorari. 345 U. S. 902. Affirmed, p. 260.

I. Walla.ce McKnight argued the cause for petitioners. With him on the brief were John C. Miles and Charles Leland Bagley.

Loren Miller argued the cause for respondent. With him on the brief were Thurgood Marshall and Franklin H. Williams.

Briefs of ami.ci curiae urging reversal were filed by John W. Preston for Affiliated Neighbors et al.; and Walter H. Pollmann, Gerald L. Seegers and Paul M. Gerwitz, Jr. for O'Fallon Park Protective Association et al.

Ma. JUSTICE MINTON delivered the opinion of the Court.

This Court held in Shelley v. Kraemer, 334 U. S. 1, that racial restrictive covenants could not be enforced in equity against Negro purchasers because such enforcement would constitute state action denying equal protection of the laws to the Negroes, in violation of the Fourteenth Amendment to the Federal Constitution. The question we now have is: Can such a restrictive covenant be enforced at law by a suit for damages against a co-covenantor who allegedly broke the covenant?

Petitioners' sued respondent at law for damages for breach of a restrictive covenant the parties entered into as owners of residential real estate in the same neighborhood in Los Angeles, California. The petitioners' complaint alleged in part:

The complaint further alleged that respondent broke the covenant in two respects: (1) by conveying her real estate without incorporating in the deed the restriction contained in the covenant; and (2) by permitting non-Caucasians to move in and occupy the premises. The trial court sustained a demurrer to the complaint, the District Court of Appeal for the Second Appellate District affirmed, 112 Cal. App. 2d 534, 247 P. 2d 99, and the Supreme Court of California denied hearing. We granted certiorari, 345 U. S. 902, because of the importance of the constitutional question involved and to consider the conflict which has arisen in the decisions of the state courts since our ruling in the Shelley case, aupra. Like the California court in the instant case, the Supreme Court of Michigan sustained the dismissal of a claim for damages for breiwh of a racial restrictive covenant, Phillips v. Naff, 332 Mich. 389, 52 N. W. 2d 158. See also Roberts v. C-urti.s, 93 F. Supp. 604 (Dist. Col.). The Supreme Court of Missouri reached a contrary result, Wei.ss v. Leaon, 359 ~Io. 1054, 225 S. W. 2d 127, while the Supreme Court of Oklahoma has held that a claim for damages may be maintained against a white seller, an intermediate straw man, and a non-Caucasian purchaser for a conspiracy to violate the covenant, Correll v. Earley, 205 Okla. 366, 237 P. 2d 1017.

The trial court in the case here held that a party to a covenant restricting use and occupancy ' of real estate to Caucasians could not maintain a suit at law against a co-covenantor for breach of the covenant because of our ruling in Shelley, supra. In Shelley, this Court held that the action of the lower courts in granting equitable relief in the enforcement of such covenants constituted state action denying to Negroes, against whom the covenant was sought to be enforced, equal protection of the laws in violation of the Fourteenth Amendment. This Court said:

"We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated ...." 334 U. S. 1, 13.

That is to say, the law applicable in that case did not make the covenant itself invalid, no one would be punished for making it, and no one's constitutional rights were violated by the covenantor's voluntary adherence thereto. Such voluntary adherence would constitute individual action only. When, however, the parties cease to rely upon voluntary action to carry out the covenant and the State is asked to step in and give its sanction to the enforcement of the covenant, the first question

Opinion of tbe Court. 346 U. S.

that arises is whether a court's awarding damages constitutes state action under the Fourteenth Amendment. To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry out her covenant, she is coerced to continue to use her property in a discriminatory manner, which in essence is the purpose of the covenant. Thus, it becomes not respondent's voluntary choice but the State's choice that she observe her covenant or suffer damages. The action of a state court at law to sanction the validity of the restrictive covenant here involved would constitute state action as surely as it was state action to enforce such covenants in equity, as in Shelley, supra.

The next question to emerge is whether the state action in allowing damages deprives anyone of rights protected by the Constitution. If a state court awards damages for breach of a restrictive covenant, a prospective seller of restricted land will either refuse to sell to non-Caucasians or else will require non-Caucasians to pay a higher price to meet the damages which the seller may incur. Solely because of their race, non-Caucasians will be unable to purchase, own, and enjoy property on the same terms as Caucasians. Denial of this right by state action deprives such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. See Shelley, supra.

Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party. Reference to this rule is made in varied situations. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 149-154 (concurring opinion). The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to "cases·• and "controversies." See Coleman v. Miller, 307 U. S. 433, 464 (concurring opinion). Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 346-348 (concurring opinion). The common thread underlying both requirements is that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation.• This principle has no application to the instant

'8e<l Frothi11gham v. Mellon, 262 U. S. 417, 486--489 (federal taxpayer sought to challcn~e a federal statute in the enforcement of which federal revenues were applied); Doremu., v. Board of Educa• ti<m, 342 U.S. 429, 434 (state taxpayer unable to show that there was

Opinion of tho Court. 346 u. s.

case in which respondent has been sued for damages totaling $11,600, and in which a judgment against respondent would constitute a direct, pocketbook injury

to her.

There are still other cases in which the Court has held that even though a. party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within !,he class whose constitutional rights are allegedly infringed. Bode v. Barrett, 344 U. S. 583, 585; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571, 576; New York ex rel. Hatch v. Reardon, 204 U.S. 152, 160-161; see also Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U. S. 118, 144.' One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable. New York ex rel. Hatch v. Reardon, supra, at 160-161; Wuchter v. Pizzutti, 276 l:. S. 13, 26-28 (dissenting opinion). It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. !\or are we so ready to frustrate the expressed will of Congress or that

of the state legislatures. Cf. Southern Pacific Co. v. Ga.llagher, 306 lJ. S. 167, 172.

This is a salutary rule, the validity of which we reaffirm. But in the instant case, we arc faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another's rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. Cf. Quong Ham Wah Co. v. Industrial Acc. Comm'n, 184 Cal. 26, 192 P. 1021.

There is such a close relationship between the restrictive covenant here and the sanction of a state court which would punish respondent for not going forward with her covenant, and the purpose of the covenant itself, that relaxation of the rule is called for here. It sufficiently appears that mulcting in damages of respondent will be solely for the purpose of giving vitality to the restrictive covenant, that is to say, to punish respondent for not continuing to discriminate against non-Caucasians in the use of her property. This Court will not permit or require California to coerce respondent to respond in damages for failure to observe a restrictive covenant that this Court would deny California the right to enforce in equity, Shelley, supra; or that this Court would deny California the right to incorporate in a statute, Buchanan v. Warley, 245 U.S. 60; or that could not be enforced in a federal jurisdiction because such a covenant would be contrary to public policy:

"It is not consistent with the public policy of the United States to permit federal courts in the Nation's capital to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the guaranty of the equal protection of the laws. We cannot presume that the public policy of the United States manifests a lesser concern for the protection of such basic rights against discriminatory action of federal courts than against such action taken by the courts of the States." Hurd v. Hodge, 334 U. S. 24, 35--36. See also Roberts v. Curtis, supra.

Consist~ncy in the application of the rules of practice in this Court does not require us in this unique set of circumstances to put the State in such an equivocal position simply because the person against whom the injury is directed is not before the Court to speak for himself. The law will permit respondent to resist any effort to compel her to observe such a covenant, so widely condemned by the courts, since she is the one in whose charge and keeping reposes the power to continue to use her property to discriminate or to discontinue such use. The relation between the coercion exerted on respondent and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand. She will be permitted to protect herself and, by so doing, close the gap to the use of this covenant, so universally condemned by the courts.

Pet,itioners argue that the right to equal protection of the laws is a "personal" right, guaranteed to the individual rather than to groups or classes. For instance, discriminatory denial of sleeping-car and dining-car facilities to an individual Negro cannot be justified on the ground that there is little demand for such fadlities by Negroes as a group. McCabe v. Atchison, T. & S. F'. R. Co., 235 U. S. 151, 161- 162. See Sweatt v. Painter, 339 U. S. 629, 635. This description of the right as "personal," when considered in the context in which it has been used, obviously has no bearing on the question of standing. Xor do we violate this principle by protecting the rights of persons not identified in this record. For instance, in the Pierce case, the persons whose rights were invoked were identified only as "present and prospective patrons" of the two schools. Pierce v. Soci.ety of Sisters, supra, at 535. In t-he present case, it is not non-Cauca.-

VINSON, C. J., dissenting. 346 U.S.

sians as a group whose rights are a..sserted by respondent, but the rights of particular non-Caucasian would-be users of restricted land.

It is contended by petitioners that for California courts to refuse to enforce this covenant is to impair the obligation of their contracts. Article I, § 10, of the Federal Constitution provides: "No State shall ... pass any ... Law impairing the Obligation of Contracts ...." The short answer to this contention is that this provision, as its terms indicate, is directed against legislative action only.

"It has been settled by a long line of decisions, that the provision of § IO, Article I, of the Federal Constitution, protecting the obligation of contracts against state action, is directed only against impairment by legislation and not by judgments of courts...." Tidal Oil Co. v. Flanagan, 263 U. S. 444,451.

It is finally contended that petitioners are denied due process and equal protection of the laws by the failure to enforce the covenant. The answer to that proposition is stated by the Court in Shelley, supra, in these words:

"The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. . . " 334 U.S. 1, 22.

The judgment is

l\lfR. JUSTICE REED and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. CHIEF JUSTICE Vrnso:-1, dissenting. This case, we are told, is "unique." I agree with the characterization. The Court, by a unique species of

2til

BARHOW._ JACK~OX.

has develoJ)NI a. unique e~ception to an other-arguments.wisr easily 1,ndrrstood dnrtrine. While I may hope that tho mn1ority's use of "unique" is but another way ofto its hat th, de- ,!'ion today will be rele11:ated

saying pre<'ise fact, tor•iorrow I m,~t, •i,.. my di•!Wnt

The majority seems to recognize, albeit ignore~ a. propwa.• ma,Je pla111 111 the .Shelle11

osition "hich I thought

is thi~: thfflt' racial re•trirti,e

<'8.Sl'.' That propoeition

whatever we may think of them. o.re not lc11:al cov<'nants.

M> far as any doctrine of federal law is concerned; nullitiesit is not unlawful to make them; it is not unla1.-ful to enforce them unless thr method by which they are enforced in some way contravenes the }"ederal C'onstitut1on or a fcdrral statute.

Thill!, in the .Shelley<'8..<.f', it was not the covenants

which were struck do,.n hut judicial enforcement of them

against \" egro vendees. The qu~tion which we dE"Cirled

as mply11hether a state court could deere(' the ou8ter

of ~e,i:rocs from pro)')Crty which they had purrha~-d and

We held that it could not.

which they were enjoying.

We held that such judicial action, which operated directlythrm of their

1md deprived

.ul(&instright to enjoythe ::,.;egro thl'irJl')titioners propt>rty "Olely bttau•r of their rare, was •tate action and constituted a denial of "equal protection."•

VINSON, C. J., dissenting. 346 U.S.

Th is case is different.

The majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this case will continue their occupancy undisturbed, regardless of the outcome of the suit. The state court was asked to do nothing which would impair their rights or their enjoyment of the property.

The plain, admitted fact that there is no identifiable non-Caucasian before this Court who will be denied any right to buy, occupy or otherwise enjoy the properties involved in this lawsuit, or any other particular properties, is decisive to me. It means that the constitutional defect, present in the Shelley case, is removed from this case. It means that this Court has no power to deal with the constitutional issue which respondent seeks to inject in this litigation as a defense to her breach of contract. It means that the covenant, valid on its face, can be enforced between the parties-unless California law or California policy forbids its enforcement-without running afoul of any doctrine ever promulgatw by this Court, without any interference from this Court.

249 VINSON, C. J., dissenting.

I turn, first, to the matter of our power to decide this case. The majority states the issue:

" ... May respondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action?"

Logically this issue should be met where such an issue is usually met-at the "threshold"; • this decision should precede any discussion of the merits of respondent's constitutional claim. Yet it is not amiss to point out that the majority has failed to put first things first; it decides the merits and then, comforted by its decision on the merits, resolves its doubts that it has power to decide the merits.

A line of decisions-long enough to warrant the respect of even the most hardened skeptic of the strength of stare deci.si.s as an effective limitation upon this Court's exercise of jurisdiction in constitutional case-stablishes the principle• which should stay this Court from deciding

• Compare M ontgom,,ry Building &: Constructi<n, Trade, Council v. Ledbetter Erection Co., 344 U. S. 178, 179 (1952); United Public Worker& v. Mitchell, 330 U. S. 75, 86 (1947).

• The principle derives, of course, from the nature of the judicial power conferred by Art. III of the Const.ilution. At a very early stage in this Court's history, Mr. Chief Justice Marshall put the matter t.bus:

". , . The article doel:l not extend the judicial power to every viola• tion of the constitution which may possibly take place, but to 'a c.-.se in law or equity,' in which a right, under such law, is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no ease in la.w or equity, and no jurisdiction is given by the words of the article...." Coh~,is v. Virginia, 6 Wheat. 264, 405 (1821). And sec the discu,;sion of this principle and its ramifications in Mr. Justice Brandeis' concurring opinion in Ashwand-er v. Tennesue Valley Authority, 297 U.S. 288, 341 (1936).

OCTOBER

TER:\1, 19.~2.

~46u.s.

what it dttides today-from

doing what it does today-from imposing a novel constitutional

Ii tat11 -,n the power of the courts of the several

states to mforre thrir own contract laws as th~y choose. This leei,- ·oot!!d, vital doctrine dt'mands that the Court refrain from

deciding a constitutional

i'!.'lue until it has a party before it who bu standing to rai!'e the ~-:ie.' The majority agrees that thi• is a "salutary"

principle, and supplies us with but a small sampling of the cases to aho-..· that it has bttn rigorously applied in many varied situations,

and surely no ROphistry is required to apply it to this case. Accordingly,

respondent

must show, at th ouLiet.

that Bhe, herself, and not some unnamed person in

an

•~fR- J1.,:aT1c:s F1t"sKrrRnn,

rorlturdnR in Coleman v . .MUl,r, 307

l :- 433, fll() (1039), _.ts forth the b.m of the pnD<1pw "rutb I heh•"• tho Court hu C.111'<1 to obo,>rve today:

"In tndo"'IIII tlus Coo:rt WJtb '1ucfici3! l'aw,r' the ConstilllUOD presuppo,.,d

an hl!loror ront~nt fc>r that phra,,, and rrlird on """ump• tu,n by tbt Jud1cisf') ol authonty only onr -.cs.-hid) are appn,. pnate !or di.•poo1toon by judRts, ..

0 h "our ulumatt- rt't!lJOm1l,1llf)

. . The .::cpe snd

of our doctrine of JudK'ialrt,·1cw O\'Pr f'.tttutivt and

l<1t1"'auve acuon ohould Dlllke u, ob.er>• lu1idiou,.ly the bounds ol the l11i«i01.11 prottSS •·trlun •·hirh ,re nre ronfin,-.J ~o matttr bow

M'nou"1r 1nlrint:rmen1

ol thoCon_.,11tuuon

may beea led into qucsuon,

tluo ,.not Iho tnl,unal for 11!cball,n,e uoept by tbo,.e who have aomo

conc,m '1hich btlongo to ull. St,anu \', ll'ood, ~3fl U 75; Fair• tluld,. H~h,,, 25b l , S. 126.

''\\'e can onl)' adju'11cat"' an 11',ue al'I to which tht~ 1 a r1111mant btlort U0 who 1w A lpttJA(, 1nd1vidualil0d

lbke in JI.()o., who ii

mcrtly the ,eflo('()ntlllut<'<I

1pok,~man ol a .-on lltuuonal pomt of

\'ll"Wtan not uk us to pam on it.. ."

249 V1r-.s0N, C. ,J.1 dissenting.

amorphous class, is the victim of the unconstitutional discrimination of which she complains.•

Respondent makes no such showing. She does not ask the Court to protect her own constitutional rights, nor even the rights of the persons who now occupy her property. Instead, she asks the Court to protect the rights of those non-Caucasians-whoever they may be-who might, at some point, be prospective vendees of some other property encumbered by some other similar covenant. Had respondent failed to designate herself as the agent of this anonymous, amorphous class, the majority certainly would have no power to vindicate its rights. Yet, because respondent happens to have decided to act as the self-appointed agent of these principals whom she cannot identify-in order to relieve herself of the obligations of her own covenant-the majority finds itself able to assert

• Tyler v. Judge., of the Court of RegistratiQn, 179 U.S. 405 (1900), whde not the first., is genera.Uy cited as the leading case on this aspect of the mies governing our exercise of jurisdiction. The Court said:

"The prime object of all litigation is to establish n. right asserted by the plaintiff or to sustain a defence set up by the party pursued. Save in a few instances where, by statute or the settled pmetiec of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which hr prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himS<:lf, a.• distinguished from the great body of h,s feUow citizens." 179 U.S., at 406. This historic view has been voiced again and again and applied in various situations down through the decades. See, e. g.1 Lampasas v. Bell, 180 U.S. 276 (1901); Cronin v. Adams, 192 l.i. S. !OS (1904); The Winnebago, 205 U. S. 354 (1907); Rosenthal,•. New York, 2'26 U.S. 260 (1912); McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151 (1914); Jeffrey Mariufactunng Co. v. Blagg, 235 U.S. 571 (1915); Sprout v. City of South Bend, 277 U.S. 163 (1928); Tileston v. Ullman, 318 U. S. 44 (1943); Garige Lumber Co. v. Rouiey. 326 U.S. 295 ( 1945); Bode v. Barrett, 344 U.S. 583 (1953).

VtNSON, C. J., disscnting. 346 U.S.

the power over state courts which it asserts today. I do not think that such tenuous circumstances can spawn the broad constitutional limitation upon state courts which springs from today's decision.'

Yet we are told that the rule which restricts our power to impose this constitutional limitation is but a rule of "self-restraint." So is every other jurisdictional limitation which depends, in the last analysis, solely upon this Court's willingness to govern its own exercise of power. And certainly to characterize the rule as self-imposed does not mean that it is self-removable by a simple self-serving process of argument. Yet the majority's logic, reduced to its barest outlines, seems to proceed in that fashion. We are told that the reasons for the self-imposed rule, which precludes us from reaching the merits, have been dissipated in this case, but the only reason why the reasons do not exist is because the Court first holds for respondent, and, having thus decided the merits, it feels free to abandon the rule which should preclude it from reaching the merits. In my view, respondent can-

'Similarly, I thjnk t.hat respondent's reliance, in her brief, on Buchanan v. Warley, 245 !:. $. 60 (1917), as a precedent to show that she has met the minimum requirements on standing, is misplar,ed. In that case, a white vendor attacked a zoning ordinance which prohibited the s.~le of bis property to any Negroes. The Court held he had standing to attack the ordinance since his constitutional attack was founded on the theory that the ordinance unconstitutionally abridged his right to sell his property to any willing purcruiscr, and not on the theory t.hat it abridged the '.'lcgro vendoo's right to buy property without being subject to dii;crimination by the state. The Court then held t.he statute invalid as an unre,,.sonable classification.

Similarly, in Pieru, •. Society of Si&ters, 268 U. $. 510 (1025), upon which the majority relics, a private school challenged a state law forbidding private education on the theory that the statute unreasonably abridged its (the school's) property rights. It was the assertion of the school's property rights whieh the Court considered in determining the validity of the statute.

249 V ls sos, C. J., dissenting.

not surmount the hurdle of our well-established rule by proceeding with an argument which carries her in a circle right back to her precise point of departure. If it should be, as the majority assumes, that there is no other way that the rights of unidentified non-Caucasians can be vindicated in court, that is only an admission that there is no way in which a substantial case or controversy can be predicated upon the right which the majority is so anxious to pass upon. I cannot assent to a manner of vindicating the constitutional rights of persons unknown which puts personal predisposition in a paramount position over well-established proscriptions on power.

But even if the merits are to be reached, even if we must decide whether enforcement of this covenant in a lawsuit of this kind is state action which contravenes the Fourteenth Amendment, I think that the absence of any direct injury to any identifiable non-Caucasian is decisive. The Shelley case, resting on the expre.ss determination that restrictive covenants are valid between the parties, dealt only with a state court's attempt to enforce them directly against innocent third parties whose right to enjoy their property would suffer immediate harm.

In this case, the plaintiffs have not sought such relief. The suit is directed against the very person whose solemn promise helped to bring the covenant into existence. The plaintiffs ask only that respondent do what she in turn had a right to ask of plaintiffs-indemnify plaintiffs for the bringing about of an event which she recognized would cause injury to the plaintiffs. We need not concern ourselves now with any quest.ion of whether this injury is fancied or real. The short of that matter is that the parties thought that any influx of non-Caucasian neighbors would impair their enjoyment of their properties, and, whether right or wrong, each had the right to control the use of his property against that event and to exact a promise from his or her neighbor that he or

OC'TOBr;R

TER'.\I, 1052.

, '" ", c J , dmrnunc 346 l :-

she.-ou Id acta,,ord, dy .\JJ J llu.tIS precisely what petitioners

1111d n•,pondcnt thd. '.\fon•over,

we 11111st, at ti- p1 rlir g st01be.ise ~p tt as a feet that r(•spondcnt

has th us for profited from the

execution of ti- • I,,, •g... ol-rva1e01 he covenant by petitionl'NI raised the value of respondent's

properties.

By this suit, t r mu so, ,:ht onlylo hn,e ~pondent

di,gor,:e that wluch was gamed at the expense of depreciation in hC'J' ,,. ~.ib, propert

The majority Hpeaks of this as an at tempt to "coerce" respondent

lo continue to 11b1de by her agreement.

Yet the contreet has alrea•ly bern breache,I.

The non-Caucasian! are in unilisturhed

oecup1111cy.

Furthermore, the re3pondent

consented to the "coercion"-if

"coercion" there be-by enkrin,: into the rovenar,t. Plaintiffs &Rk only that respondent

now pay what she legally obligated h<·rself to pay for an injury which she recognized would ~ur if shr. did what 1he did.

Of cou~. there may be othrr elements of coercion. Coercion 1111,:ht nsult on the mmds or some Cauca,ian properly owners who have signed a covenant such a.• this, for thry may now feel an economic compulsion

to abide

by their agreements.

But visiting coercion upon the

minds or some unidrntifif<I

C'auca.•ian property ""'ners

is not at all tlrn stat" action 9,·hirh "'as condemned

in

the Shelley ease. In that case, the state court had directed "th" full roerch-e power of,:o,·ermnenl"

again•(

the Xrgro petit1oncre-forrefully

removing them from

ll eir>l'OP, y b.:caut<C they fell in

a cla. di•criminatorily

tlrfincd. But in this case, where no ident1finble

third

·rso, can 1:-e d,~tly injured if =pondent

is made to

disgorge enough to indemnify petitioners,

the Court

'louM not J take to hol,J that the Fourteenth

Amend-

ment stands as a bar to the state rourt's enforcement of e<.nlract law.

249 V1NSON, C. J., disSf'nting.

Obviously we can only interfere in this cMe if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to t.he settled rules which restrict the exercise of our power of judicial review-remembering that the only restraint upon this power is our own sense of self-restraint.•

Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangers-the only rights which she has chosen to assertr-and since I cannot see how the Court can find that those rights wou Id be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today's decision.

• See Mr. Justice Stone dissenting in United States "· Butler, 297 U.S. I, 78-79 (1936).