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the constitutional guaranties which we have invoked. The immediate consequence of the decrees now under review is to bring about that which the legislative and executive departments of the Government are powerless to accomplish. It would seem to follow that by these decrees the appellants have been deprived of their liberty and property, not by individual, but by governmental action. These decrees have all the force of a statute. They have behind them the sovereign power. In rendering these decrees, the courts which have pronounced them have functioned as the law-making power. See Gondolfo v. Hartman, 49 Fed. 181; McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U. S. 151.
On the applicability of constitutional amendments to the District of Columbia, see Siddons v. Edmondston, 42 App. D. C. 459; Downes v. Bidwell, 182 U. S. 244; Evans v. United States, 31 App. D. C. 544; Stoutenburgh v. Frazier, 16 App. D. C. 229; Curry v. District of Columbia, 14 App. D. C. 423; Wight v. Davidson, 181 U. S. 371; Moses v. United States, 16 App. D. C. 428; Callan v. Wilson, 127 U. S. 540; Lappin v. District of Columbia, 22 App. D. C. 68; Smoot v. Hcyl, 227 U. S. 518; Block v. Hirsh, 256 U. S. 135; Adkins v. Children's Hospital, 261 U. S. 525; District of Columbia v. Brooke, 214 U. S. 138; Geofroy v. Riggs, 133 U. S. 258; Talbot v. Silver Bow County, 139 U. S. 444.
The covenant, the enforcement of which has been decreed by the courts below, is contrary to public policy. The public policy of this country is to be ascertained from its Constitution, statutes and decisions, and the underlying spirit illustrated by them. The covenant is not only one which restricts the use and occupancy by negroes of the various premises covered by its terms, but it also prevents the sale, conveyance, lease or gift of any such premises by any of the owners or their heirs and assigns to negroes or to any person or persons of the negro race
or blood, perpetually, or at least for a period of twentyone years. It is in its essential nature a contract in restraint of alienation and is, therefore, contrary to public policy. De Peyster v. Michael, 6 N. Y. 497; Potter v. Couch, 141 U. S. 296; Manierre v. Welling, 32 R. I. 104: Mandlebaum v. McDonell, 29 Mich. 79; In re Rosher, L. R. 26 Ch. Div. 801; In re Macleay, L. R. 20 Eq. 186; Smith v. Clark, 10 Md. 186; McCullough v. Gilmore, 11 Pa. 370; Bennett v. Chapin, 77 Mich. 527; Attwater v. Attwater, 18 Beav. 330; Billing v. Welch, Irish Rep., 6 C. L. 88; Schermerhorn v. Negus, 1 Denio 148; Johnson v. Preston, 226 Ill. 447; Anderson v. Carey, 36 Ohio St. 506; Barnard v. Bailey, 2 Harr. (Del.) 56; Williams v. Jones, 2 Swan (Tenn.) 620; Brothers v. McCurdy, 36 Pa. 407. See also Re Rosher, L. R. 26 Ch. Div. 801, and Re Dugdale, L. R. 38 Ch. Div. 176, in both of which cases In re Macleay, L. R. 20 Eq. 186, was disapproved. 4 Kent's Commentaries 131.
Independently of our public policy as deduced from the Constitution, statutes, and decisions, with respect to the segregation of colored persons and the fact that the covenant sued upon is in restraint of alienation, we contend that such a contract as that now under consideration militates against the public welfare. The covenant is not ancillary to the main purpose of a valid contract and therefore is an unlawful restraint. Test Oil Co. v. La Tourrette, 19 Okla. 214; 3 Williston on Contracts, § 1642; Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. It is a subject of serious consideration as to whether such a covenant, entered into, as in this case, by twenty-four different individuals, would not constitute a common law conspiracy. Callan v. Wilson, 127 U. S. 540; Granada Lumber Co. v. Mississippi, 217 U. S. 440; Lumber Assn. v. United States, 234 U. S. 600.
Cases relied upon in the court below to sustain the enforcement of this covenant are not only unsound but
also distinguishable. Los Angeles Investment Co. v. Gary, 181 Cal. 680; Queensboro Land Co. v. Cazeaux, 136 La. 724; Kochler v. Rowland, 275 Mo. 573; Parmalee v. Morris, 218 Mich. 625.
Mr. James S. Easby-Smith, with whom Messrs. David A. Pine and Francis W. Hill, Jr., were on the brief, for appellee.
MR. JUSTICE SANFORD delivered the opinion of the Court.
This is a suit in equity brought by John J. Buckley in the Supreme Court of the District of Columbia against Irene H. Corrigan and Helen Curtis, to enjoin the conveyance of certain real estate from one to the other of the defendants.
The case made by the bill is this: The parties are citizens of the United States, residing in the District. The plaintiff and the defendant Corrigan are white persons, and the defendant Curtis is a person of the negro race. In 1921, thirty white persons, including the plaintiff and the defendant Corrigan, owning twenty-five parcels of land, improved by dwelling houses, situated on S Street, between 18th and New Hampshire Avenue, in the City of Washington, executed an indenture, duly recorded, in which they recited that for their mutual benefit and the best interests of the neighborhood comprising these properties, they mutually covenanted and agreed that no part of these properties should ever be used or occupied by, or sold, leased or given to, any person of the negro race or blood; and that this covenant should run with the land and bind their respective heirs and assigns for twentyone years from and after its date.
In 1922, the defendants entered into a contract by which the defendant Corrigan, although knowing the defendant Curtis to be a person of the negro race, agreed to
sell her a certain lot, with dwelling house, included within the terms of the indenture, and the defendant Curtis, although knowing of the existence and terms of the indenture, agreed to purchase it. The defendant Curtis demanded that this contract of sale be carried out, and, despite the protest of other parties to the indenture, the defendant Corrigan had stated that she would convey the lot to the defendant Curtis.
The bill alleged that this would cause irreparable injury to the plaintiff and the other parties to the indenture, and that the plaintiff, having no adequate remedy at law, was entitled to have the covenant of the defendant. Corrigan specifically enforced in equity by an injunction preventing the defendants from carrying the contract of sale into effect; and prayed, in substance, that the defendant Corrigan be enjoined during twenty-one years from the date of the indenture, from conveying the lot to the defendant Curtis, and that the defendant Curtis be enjoined from taking title to the lot during such period, and from using or occupying it.
The defendant Corrigan moved to dismiss the bill on the grounds that the "indenture or covenant made the basis of said bill" is (1) "void in that the same is contrary to and in violation of the Constitution of the United States," and (2) "is void in that the same is contrary to public policy." And the defendant Curtis moved to dismiss the bill on the ground that it appears therein. that the indenture or covenant "is void, in that it attempts to deprive the defendant, the said Helen Curtis, and others of property, without due process of law; abridges the privilege and immunities of citizens of the United States, including the defendant, Helen Curtis, and other persons within this jurisdiction [and denies them] the equal protection of the law, and therefore, is forbidden by the Constitution of the United States, and especially by the Fifth, Thirteenth, and Fourteenth
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Amendments thereof, and the Laws enacted in aid and under the sanction of the said Thirteenth and Fourteenth Amendments."
Both of these motions to dismiss were overruled, with leave to answer. 52 Wash. L. Rep. 402. And the defendants having elected to stand on their motions, a final decree was entered enjoining them as prayed in the bill. This was affirmed, on appeal, by the Court of Appeals of the District. 299 Fed. 899. The defendants then prayed an appeal to this Court on the ground that such review was authorized under the provisions of § 250 of the Judicial Code as it then stood, before the amendment made by the Jurisdictional Act of 1925-in that the case was one involving the construction or application of the Constitution of the United States" (par. 3), and "in which the construction of " certain laws of the United States, namely §§ 1977, 1978, 1979 of the Revised Statutes, were "drawn in question " by them (par. 6). This appeal was allowed, in June, 1924.
The mere assertion that the case is one involving the construction or application of the Constitution, and in which the construction of federal laws is drawn in question, does not, however, authorize this Court to entertain the appeal; and it is our duty to decline jurisdiction if the record does not present such a constitutional or statutory question substantial in character and properly raised below. Sugarman v. United States, 249 U. S. 182, 184; Zucht v. King, 260 U. S. 174, 176. And under well settled rules, jurisdiction is wanting if such questions are so unsubstantial as to be plainly without color of merit and frivolous. Wilson v. North Carolina, 169 U. S. 586, 595; Delmar Jockey Club v. Missouri, 210 U. S. 324, 335; Binderup v. Pathe Exchange, 263 U. S. 291, 305; Moore v. New York Cotton Exchange, 270 U. S. 593.
Under the pleadings in the present case the only constitutional question involved was that arising under the