Summary
In City of Richmond v. Deans, 4 Cir., 37 F.2d 712, we held that a zoning ordinance which in effect discriminated on grounds of race would not be upheld merely because it was based on the legal prohibition of intermarriage, which was itself based on racial grounds.
Summary of this case from Rolax v. Atlantic Coast Line R. Co.Opinion
No. 2900.
January 14, 1930.
Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; D. Lawrence Groner, Judge.
Suit by J.B. Deans against the City of Richmond and others. From an adverse decree, defendants appeal. Affirmed.
The purpose of this action was to enjoin the enforcement by the City of Richmond of the fines and penalties of an ordinance entitled an ordinance "To prohibit any person from using as a residence any building on any street between intersecting streets where the majority of residences on such street are occupied by those with whom said person is forbidden to intermarry by section 5 of an act of the General Assembly of Virginia entitled `An act to preserve racial integrity' approved March 20, 1924, and providing that existing rights shall not be affected." The trial court held that the ordinance was in violation of Const. Amend. 14.
Lucius F. Cary, of Richmond, Va. (James E. Cannon, of Richmond, Va., on the brief), for appellants.
Alfred E. Cohen and Joseph R. Pollard, both of Richmond, Va., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and McDOWELL, District Judge.
We agree with the learned judge below that this case is controlled by the decisions of the Supreme Court in Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149, L.R.A. 1918C, 210, Ann. Cas. 1918A, 1201, and Harmon v. Tyler, 273 U.S. 668, 47 S. Ct. 471, 71 L. Ed. 831, reversing Tyler v. Harmon, 158 La. 439, 104 So. 200. To the same effect as these Supreme Court decisions is the Virginia decision of Irvine v. City of Clifton Forge, 124 Va. 781, 97 S.E. 310, which follows them. Attempt is made to distinguish the case at bar from these cases on the ground that the zoning ordinance here under consideration bases its interdiction on the legal prohibition of intermarriage and not on race or color; but, as the legal prohibition of intermarriage is itself based on race, the question here, in final analysis, is identical with that which the Supreme Court has twice decided in the cases cited.
Memorandum decision.
We have carefully considered the cases of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L.R. 1016, and Zahn v. Board of Public Works, 274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074, upon which defendant relies; but we do not think that they are in point. They deal with the right of a city to forbid the erection of buildings of a particular kind or for a particular use within certain sections of the city, which manifestly is a very different question from that involved here. That the Supreme Court did not consider that the doctrine of Buchanan v. Warley was in any way overruled or limited by Euclid v. Ambler, is shown by the fact that Harmon v. Tyler was decided five months after the latter case, and its decision was expressly based on the former. There was no error, and the decree below is affirmed.
Affirmed.