[794]*794Foster, J.
This is an appeal by the Washington State Board Against Discrimination from a final judgment holding null and void an order of the appellant requiring John J. O’Meara and his wife to sell their home to the intervenor,' Robert L. Jones, who is a Negro.
The constitutionality of the 1957 amendment to the law against discrimination is presented. Laws of 1957, chapter 37, § 3, p. 108, RCW 49.60.030, declares freedom from discrimination on account of race, creed or national origin to be a civil right and that it shall include the right to secure publicly-assisted housing without discrimination. The text of the statute is:
“The right to be free from discrimination because of race, creed, color, or national origin is recognized as and declared to be a civil right. This right shall include, but not be limited to: . . .
“ (3) The right to secure publicly-assisted housing without discrimination.”
By the express terms of the 1957 amendment, the power of the appellant board to order a sale is limited to those owners offering their homes for sale while a loan from a Federal or state agency remains unpaid or while there is a commitment for such a loan. The statute gives the board no power to require an owner to sell to any particular person under any other circumstances. That is to say, as soon as such a loan is paid, the board’s power in the premises is at an end.
The statute is:
“ ‘Publicly-assisted housing’ includes any building, structure or portion thereof which is used or occupied or is intended to be used or occupied as the home, residence or sleeping place of one or more persons, and the acquisition, construction, rehabilitation, repair or maintenance of which is financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions, or any agency thereof, provided that such a housing accommodation shall he deemed to he puhlicly-assisted only during the life of such loan and such guarantee or [795]*795insurance, or if a commitment, issued by a government agency, is outstanding that the acquisition of such housing accommodations may be financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions, or any agency thereof;” Laws of 1957, chapter 37, § 4, p. 109, 111. (Italics ours.)
The trial judge favored this court with a painstaking written opinion in which the facts are fairly stated as follows:
“The petitioner John J. O’Meara is a Commander in the United States Coast Guard. He and his wife own a single-family residence at 3004 East 70th Street, Seattle, Washington. In the early spring of this year, Commander O’Meara received orders transferring him to Washington, D. C. He placed his Seattle home on the market by running an advertisement in the Seattle Times and by posting ‘For Sale’ signs on his front lawn and at other places in the neighborhood. He did not list it for sale with any real estate broker as he intended to deal directly with prospective purchasers.
“The complainant, Robert L. Jones, is a Negro, employed by the United States Postal Service. On Sunday, April 19th, Mr. and Mrs. Jones and some friends visited and inspected the O’Meara home. On Tuesday, April 21st, complainant’s attorney went to the O’Meara home and left with Mrs. O’Meara a signed earnest money receipt contemplating a sale for $18,000, ‘all cash to seller on closing.’ The earnest money receipt was accompanied by a check for $1,000 as a down payment. These documents were left with Mrs. O’Meara over her protest. On April 22, they were returned to complainant’s attorney by Commander O’Meara.
“Mr. Jones lodged a complaint with the Washington State Board Against Discrimination, which followed the statutory administrative procedure by convening a hearing tribunal, which sat on Saturday, April 25th. The hearing consumed approximately eleven hours and the transcript of the testimony runs to 300 pages. Seven witnesses were heard. Thereafter, the hearing tribunal filed its opinion, findings of fact, and order. The hearing tribunal found, as a fact, that the O’Mearas had refused to sell their home to complainant because of his color, and that such refusal [796]*796constituted an unfair practice as defined in RCW 49.60-.217.
“The home in question is approximately 24 years old. The O’Mearas bought it in 1955. It was financed through a private loan insured by the Federal Housing Administration, which hereafter in this opinion will be referred to as FHA. The law against discrimination under the authority of which the hearing tribunal sat, insofar as it applies to house-ing, was not enacted until 1957.
“For the purposes- of this opinion, it will be assumed that the hearing tribunal was correct in finding that the O’Mearas had refused to sell their home to complainant because of his color. ...”
Judge Hodson admirably stated the evils of housing discrimination in the following paragraph:
“This court is fully cognizant of the evils which flow from discrimination because of race, creed, or color in a free democratic society. The practice of discrimination is utterly inconsistent with the political philosophy upon which our institutions are based and with the moral principles which we inherit from our Judeo-Christian tradition. Its effects, in terms of social, economic and psychological damage to the community, are well known. Segregated housing, in particular, is linked intimately with substandard, unhealthy, unsafe living conditions with resultant fire and health hazards. It undoubtedly contributes to instability in family life, moral laxity, and delinquency. It can and must be eliminated, not only in order that the members of our minority groups may reach their full potential but also in order that the majority may be brought to act in a manner consistent with the principles which they profess. It may be noted also that elimination of discrimination is necessary for the sake of America’s relations with the rest of the world. Our standing with the so-called uncommitted peoples of the world suffers seriously because of the continued discrimination and segregation practiced in America.”
The trial court reviewed the two other decided cases presenting related problems as follows:
“New York State Commission Against Discrimination vs. Pelham Hall Apartments, Inc., et al., [10 Misc. (2d) 334, 170 N. Y. S. (2d) 750 (1958),] is Index No. 8642/1957 in the Supreme Court of the State of New York for West-chester County. The Commission Against Discrimination [797]*797had ordered the respondents not to discriminate in the leasing of apartments in alleged publicly-assisted housing. The respondents were the owners of a multiple-apartment dwelling. They refused to lease an apartment to one Sher-vington, a Negro. They admitted that their refusal was because of his race. The FHA commitment had been made on June 30, 1955, and the effective date of the New York statute was the following day, July 1st. It is to be noted that the New York statute is prospective only.
Free access — add to your briefcase to read the full text and ask questions with AI
[794]*794Foster, J.
This is an appeal by the Washington State Board Against Discrimination from a final judgment holding null and void an order of the appellant requiring John J. O’Meara and his wife to sell their home to the intervenor,' Robert L. Jones, who is a Negro.
The constitutionality of the 1957 amendment to the law against discrimination is presented. Laws of 1957, chapter 37, § 3, p. 108, RCW 49.60.030, declares freedom from discrimination on account of race, creed or national origin to be a civil right and that it shall include the right to secure publicly-assisted housing without discrimination. The text of the statute is:
“The right to be free from discrimination because of race, creed, color, or national origin is recognized as and declared to be a civil right. This right shall include, but not be limited to: . . .
“ (3) The right to secure publicly-assisted housing without discrimination.”
By the express terms of the 1957 amendment, the power of the appellant board to order a sale is limited to those owners offering their homes for sale while a loan from a Federal or state agency remains unpaid or while there is a commitment for such a loan. The statute gives the board no power to require an owner to sell to any particular person under any other circumstances. That is to say, as soon as such a loan is paid, the board’s power in the premises is at an end.
The statute is:
“ ‘Publicly-assisted housing’ includes any building, structure or portion thereof which is used or occupied or is intended to be used or occupied as the home, residence or sleeping place of one or more persons, and the acquisition, construction, rehabilitation, repair or maintenance of which is financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions, or any agency thereof, provided that such a housing accommodation shall he deemed to he puhlicly-assisted only during the life of such loan and such guarantee or [795]*795insurance, or if a commitment, issued by a government agency, is outstanding that the acquisition of such housing accommodations may be financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions, or any agency thereof;” Laws of 1957, chapter 37, § 4, p. 109, 111. (Italics ours.)
The trial judge favored this court with a painstaking written opinion in which the facts are fairly stated as follows:
“The petitioner John J. O’Meara is a Commander in the United States Coast Guard. He and his wife own a single-family residence at 3004 East 70th Street, Seattle, Washington. In the early spring of this year, Commander O’Meara received orders transferring him to Washington, D. C. He placed his Seattle home on the market by running an advertisement in the Seattle Times and by posting ‘For Sale’ signs on his front lawn and at other places in the neighborhood. He did not list it for sale with any real estate broker as he intended to deal directly with prospective purchasers.
“The complainant, Robert L. Jones, is a Negro, employed by the United States Postal Service. On Sunday, April 19th, Mr. and Mrs. Jones and some friends visited and inspected the O’Meara home. On Tuesday, April 21st, complainant’s attorney went to the O’Meara home and left with Mrs. O’Meara a signed earnest money receipt contemplating a sale for $18,000, ‘all cash to seller on closing.’ The earnest money receipt was accompanied by a check for $1,000 as a down payment. These documents were left with Mrs. O’Meara over her protest. On April 22, they were returned to complainant’s attorney by Commander O’Meara.
“Mr. Jones lodged a complaint with the Washington State Board Against Discrimination, which followed the statutory administrative procedure by convening a hearing tribunal, which sat on Saturday, April 25th. The hearing consumed approximately eleven hours and the transcript of the testimony runs to 300 pages. Seven witnesses were heard. Thereafter, the hearing tribunal filed its opinion, findings of fact, and order. The hearing tribunal found, as a fact, that the O’Mearas had refused to sell their home to complainant because of his color, and that such refusal [796]*796constituted an unfair practice as defined in RCW 49.60-.217.
“The home in question is approximately 24 years old. The O’Mearas bought it in 1955. It was financed through a private loan insured by the Federal Housing Administration, which hereafter in this opinion will be referred to as FHA. The law against discrimination under the authority of which the hearing tribunal sat, insofar as it applies to house-ing, was not enacted until 1957.
“For the purposes- of this opinion, it will be assumed that the hearing tribunal was correct in finding that the O’Mearas had refused to sell their home to complainant because of his color. ...”
Judge Hodson admirably stated the evils of housing discrimination in the following paragraph:
“This court is fully cognizant of the evils which flow from discrimination because of race, creed, or color in a free democratic society. The practice of discrimination is utterly inconsistent with the political philosophy upon which our institutions are based and with the moral principles which we inherit from our Judeo-Christian tradition. Its effects, in terms of social, economic and psychological damage to the community, are well known. Segregated housing, in particular, is linked intimately with substandard, unhealthy, unsafe living conditions with resultant fire and health hazards. It undoubtedly contributes to instability in family life, moral laxity, and delinquency. It can and must be eliminated, not only in order that the members of our minority groups may reach their full potential but also in order that the majority may be brought to act in a manner consistent with the principles which they profess. It may be noted also that elimination of discrimination is necessary for the sake of America’s relations with the rest of the world. Our standing with the so-called uncommitted peoples of the world suffers seriously because of the continued discrimination and segregation practiced in America.”
The trial court reviewed the two other decided cases presenting related problems as follows:
“New York State Commission Against Discrimination vs. Pelham Hall Apartments, Inc., et al., [10 Misc. (2d) 334, 170 N. Y. S. (2d) 750 (1958),] is Index No. 8642/1957 in the Supreme Court of the State of New York for West-chester County. The Commission Against Discrimination [797]*797had ordered the respondents not to discriminate in the leasing of apartments in alleged publicly-assisted housing. The respondents were the owners of a multiple-apartment dwelling. They refused to lease an apartment to one Sher-vington, a Negro. They admitted that their refusal was because of his race. The FHA commitment had been made on June 30, 1955, and the effective date of the New York statute was the following day, July 1st. It is to be noted that the New York statute is prospective only. It does not, as the Washington statute purports to do, apply to housing which was publicly assisted before its effective date. The bank advances which were made on account of the insured loan during construction of the project all came subsequent to the effective date of the act. It is to be noted also that the New York statute applies only to multiple dwellings or housing projects of ten or more contiguous houses. In the circumstances, the court had no difficulty in finding the respondents’ property to be publicly assisted. On the constitutional question, the court recognized that the legislation could be justified only if it was determined that it was a valid exercise of the police power. It was held that the act was a valid exercise of the police power, and that its limitation to the specified classes of housing and to housing which became publicly assisted after July 1st, 1955, was a reasonable classification or at least was not so arbitrary and unreasonable as to be in violation of the equal-protection clauses. Accordingly, the application of the Commission to enforce its order against the respondents was granted.
“Levitt & Sons, Inc., vs. Division Against Discrimination is No. A-334-58 in the Appellate Division of the Superior Court of New Jersey, decided July 22, 1959 [since affirmed by the supreme court of New Jersey, 31 N. J. 514, 158 A. (2d) 177]. In that case, the plaintiff appellant was the developer of approximately 16,000 one-family houses in a project known as Levittown. Its coplaintiff, Greenfield’s Farm, Inc., was the developer of approximately 600 houses in Greenfield’s Village. The FHA had committed itself to insure mortgages made by purchasers. It was necessary for FHA to approve the site and to lay down requirements concerning drainage, street layouts, parks, curbs, sidewalks, utilities, including water and sewage disposal, and such improvements as top soil, streets, trees, driveways, entrance walks, finish grade, etc. Individual applications were processed by the architectural valuation and mort[798]*798gage credit sections in the Chief Underwriter’s Office. During the course of the construction, FHA inspectors made periodic inspections. In fact, at Levittown a full-time FHA inspector was employed. The court concluded that the plaintiffs would not have undertaken the developments if they had not been assured of the availability of FHA financing and, accordingly, in view of the large scale and intimate connection of FHA with the developments, the court had no difficulty in concluding that they were ‘publicly assisted.’ ”
It is to be noted that the decision in the New York case was by a trial court whose decision is not binding precedent.
The power of the legislature to vest the appellant board with authority to order any or all owners to sell their homes to particular persons is not presented.
But on the contrary, the only question is: Can the state constitutionally compel a home owner to sell his home to one designated by a state administrative agency solely because such home owner has not paid a public loan or a loan guaranteed by a Federal or state agency while immunizing all other home owners from such coercive powers?
We affirm the judgment holding the statute unconstitutionally discriminatory under the equal protection clause of the fourteenth amendment to the Federal constitution and the privileges and immunities clause of Art. I, § 12, of the state constitution.
The reasons stated by Judge Hodson therefor are adopted as the opinion of this court.
Judge Hodson’s words are:
“ . . . It may very well be that, if the FHA itself had had a regulation, at the time he obtained his loan, declaring that those who took advantage of FHA benefits would thereby be prohibited from discriminating in the eventual sale of the property, such regulation would be valid and binding. He would then have had the choice of accepting FHA financing with such limitation, or obtaining private financing without FHA. In this case, the house was built long before there was any FHA, and Commander O’Meara obtained his loan two years before the effective date of the antidiscrimination law. In the [799]*799circumstances, it can hardly be argued that he voluntarily assumed any limitations at the time he obtained his loan.
“One further question remains: Is the classification created by the act reasonable? It applies only to ‘publicly-assisted’ property.
“Mr. Justice Holmes, in Patsone vs. Pennsylvania, 232 U. S. 138 (1914), had the following to say on the subject:
“ ‘We start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. . . . It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. . . . The question therefore narrows itself to whether this court can say that the (legislature) was not warranted in assuming as its premise for the law that (the class which the law singles out was) the peculiar source of the evil that it desired to prevent.’
“There is no reason to suppose that persons with FHA mortgages on their homes are more likely to discriminate against minority groups than those who have conventional mortgages or no mortgages, or those who are purchasing upon contract. This act would prohibit Commander O’Meara from doing what his neighbors are at perfect liberty to do. It gives to those who have conventional mortgages, or no mortgages, and those who are buying upon contract, special privileges and immunities which are not accorded to him. The classification is arbitrary and capricious and bears no reasonable relation to the evil which is sought to be eliminated. It not only violates the equal protection clause of the 14th Amendment to the United States Constitution, but violates the special privileges and immunities clause of Article I, Section 12, of the Washington State Constitution.”
The judgment appealed from is affirmed.
Donworth and Weaver, JJ., concur.