GRONER, C. J.
This is a second appeal in this case. When it was here before we affirmed, with costs, and by our mandate ordered the District Court to carry its judgment into effect.
The case concerned the validity of a "restrictive covenant" running with the land. The District Court on the original trial held the covenant in full force and effect and directed defendant Mays, whose purchase violated the covenant, to remove herself and all of her personal effects from the premises within sixty days from the date of judgment (June 30, 1944).
On the original appeal here it was argued that the judgment should be reversed — "(1) because the character of the neighborhood has so changed as to render the original purpose unenforceable; (2) that the covenant constitutes an undue and unlawful restraint on alienation; (3) that it is not binding on the appellants, who are the successors in interest of the original covenantors, because of lack of privity; and (4) it is contrary to public policy and violates the Constitution of the United States, particularly the Fifth and Fourteenth Amendments and Section 1 of the Thirteenth Amendment and the statutes enacted thereunder, particularly R.S.1977, 1978 and 5508 [8 U.S.C.A. §§ 41, 42; 18 U.S.C.A. § 51]."
We held, for reasons stated in the opinion, that there was no merit in any of the contentions, and specifically that appellant had purchased with both actual and constructive notice of the terms of the covenant. 79 U.S.App.D.C. 343, 147 F.2d 869. Thereafter application was made to the Supreme Court for certiorari and denied June 18, 1945, 65 S.Ct. 1406.
Appellant, however, refused and neglected to comply with the judgment of the District Court, and accordingly, September 3, 1945, a motion was filed by appellees to have appellant adjudged in contempt. The motion came on for hearing September 27, 1945, and appellant filed in opposition thereto an affidavit made by herself and one made by a District of Columbia real estate agent. The purport of the two affidavits was (1) that appellant had made diligent effort to obtain another home in
Appellant thereupon took an appeal to this court.
Enough has been said to show that the judgment of the District Court, affirmed by this court, established the law of the case. Thereafter the District Court had no jurisdiction, except to carry out the mandate of this court. No principle of law is better established than the rule that a District Court is bound "by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution * * *." Sibbald v. United States, 12 Pet. 488, 492, 9 L. Ed. 1167; Ex parte Union Steamboat Co., 178 U.S. 317, 319, 20 S.Ct. 904, 44 L.Ed. 1084. The rule has been reiterated by the Supreme Court time and again, as will readily be seen by an examination of the following cases: Kansas City So. R. Co. v. Guardian Trust Co., 281 U.S. 1-11, 50 S.Ct. 194, 74 L.Ed. 659; Ex parte Union Steamboat Co., 178 U.S. 317, 20 S.Ct. 904, 44 L. Ed. 1084; In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; Gaines v. Caldwell, 148 U.S. 228, 13 S.Ct. 611, 37 L.Ed. 432; Ex parte Washington & Georgetown R. Co., 140 U.S. 91, 11 S.Ct. 673, 35 L.Ed. 339. In Skillern's Ex'rs v. May's Ex'rs, 6 Cranch 267, 3 L.Ed. 220, the Supreme Court, on certification of the question whether the court below, upon discovery of the fact that it had had no original jurisdiction in the case, could dismiss the proceedings, answered that as the merits of the case had been finally decided and its mandate required only the execution of the decree, the Circuit Court was bound to carry that decree to execution, although the jurisdiction of that Court was not alleged in the proceeding. See also Washington Bridge Co. v. Stewart, 3 How. 413, 11 L.Ed. 658. In Ex parte Dubuque & Pacific R. Co., 1 Wall. 69, 17 L.Ed. 514, a case in which the Supreme Court had reversed the judgment of the Circuit Court and remanded the cause to enter judgment for the other party, and the court below had thereafter received affidavits showing new facts and demanding a new trial, it (the Supreme Court) ordered the proceedings vacated on the ground that the court had no power to set aside the judgment, "its authority extending only to executing the mandate." To the same effect is In re Potts, 166 U.S. 263, 17 S.Ct. 520, 521, 41 L.Ed. 994. There a bill in equity for infringement of letters patent was denied in the lower court. On appeal the Supreme Court decided that the patent was valid and had been infringed, and the case was remanded. The lower court entered a decree in conformity with that mandate and awarded a perpetual injunction against defendant infringers. Defendant infringers then filed a petition for a rehearing on the basis of newly discovered evidence and, after rehearing, the court entered a decree that the letters patent were void.
The Supreme Court, citing In re Sanford Fork & Tool Co., supra, pointed out that the instant case, unlike the Sanford case, had been heard not merely upon a question of sufficiency of pleading but upon the whole merits, and, accordingly, the validity of the patent must be considered as finally settled and not open to reconsideration by the lower court. A rule to prevent such further proceedings was held to be "essential to the proper administration of the law, and to a reasonable termination of litigation between the parties in chancery suits."
Many other cases of a like nature and with a similar result might be cited.
When this case was here before it was argued at great length that the character of the neighborhood had changed since the making and recording of the covenants, and the points of hardship and lack of reasonable housing accommodations in the District of Columbia, now reiterated, were stressed and urged. We considered both points and held that they were not sufficient to justify the abrogation of the rule of law which this court had applied consistently in similar cases over a period of twenty-five years. The fact that since the case was originally heard below, a similar covenant, covering property in an adjoining block, has expired by time limitation and four purchases by colored people have been made, would not, even if it had occurred before decision, have changed the result. As we said in our former opinion, the neighborhood, consisting
The case having been originally heard in the District Court upon the whole merits, and the judgment of that court affirmed by this court, the case must be deemed to be finally settled. The appeal is without merit and accordingly the judgment below is affirmed and the appeal dismissed, with costs.
EDGERTON, Associate Justice (dissenting).
In Mays v. Burgess,
This court's former decision was based primarily on one essential finding of fact. This finding was that the neighborhood of the premises in suit continued to be, as it had been when the restrictive covenant was made, entirely white, and that enforcement of the covenant would therefore accomplish its purpose of preserving such a neighborhood and maintaining property values. This finding was based, in turn, largely upon an underlying finding that "no colored people occupy any property in the particular block with which we are concerned, nor in the block adjacent thereto on First Street in either direction."
The former decision of this court expressly left in effect the rule of the Hundley case
Circumstances are alleged to have changed in other important respects as well. As far as the record shows, appellant did not contend at the original trial in June, 1944, that she would be unable to find accommodations for herself and her family if she were forced to vacate the premises, although she did testify that there had been "an absolute lack of other available properties" when she bought the house in February, 1944, and her counsel orally argued hardship when the case was here on appeal. Accordingly neither the District Court on that trial nor this court on that appeal
This testimony has not been contradicted. To one who is familiar with the present local housing situation, it appears probable. If it is true, to enforce the injunction against appellant at the present time will subject her and her family to very great hardship. The District Court should therefore have made findings concerning the availability of other housing, and considered them in deciding whether to continue, modify or dissolve the injunction. The restrictive promises of a defendant's predecessors are not to be enforced in disregard of the principle that no injunction should cause extreme hardship to the defendant without commensurate benefit to the plaintiff. Equity is not indifferent to human suffering.
This court rules that the present "case must be deemed to be finally settled" by the previous case. This ruling raises a serious constitutional question. May the validity of a racial covenant be frozen, by judicial action, for the duration of the covenant? The ruling imposes a novel restraint upon the expansion of Negro and mixed areas, makes the acute shortage of Negro housing a little more acute, and substantially benefits no one.
The ruling also imposes a novel limitation upon the equity power of the District Court. It ignores the relatively recent Swift case in which the Supreme Court said: "We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions. * * * A court does not abdicate its power to revoke or modify its mandate,
It is true that appellant has not formally asked for modification or dissolution of the injunction. But Federal Rules of Civil Procedure Rule 54(c),
Appellant has failed to comply with a valid injunction. However severe the hardship which compliance would entail, it is probably within the discretion of the District Court, on consideration of all the pertinent facts, to impose some penalty. Even if it is shown to be completely impossible to find other housing for herself and her family in the District of Columbia, the court might find that it is not completely impossible for her to vacate the house in suit. But the court cannot abrogate its obligation to exercise discretion, and discretion cannot be exercised without considering all the elements which are essential to a just determination of the cause.
In my opinion the order appealed from should be reversed and the cause remanded to the District Court with instructions to take testimony and make findings of fact concerning the present possibility of accomplishing the purposes of the covenant and the present availability of other housing for appellant and her family. The court should then determine in the light of the facts found (1) whether the injunction of June 30, 1944, should be continued, modified, or dissolved and (2) what penalty, if any, may equitably be imposed upon appellant for failure to comply with the injunction.
Cf. Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 S.Ct. 552, 557, 85 L.Ed. 836, 132 A.L.R. 1200: "The injunction which we sustain is `permanent' only for the temporary period for which it may last. * * * Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted."
The application of this principle to the enforcement of restrictive covenants has been recognized. In affirming a permanent mandatory injunction for compliance with a restrictive building covenant, the Supreme Court of Wisconsin said: "The appellants object to the form of the judgment as decreeing a perpetual injunction without provision for modification, and say that the proper form of judgment is one that permits modification as conditions in the neighborhood change. The present decree acts only upon existing facts, and is based upon the conditions presently existing in the neighborhood. If and when conditions change, the court will have power to deal with such changed conditions without any embarrassment by reason of this decree. This decree declares the rights of the parties as they exist by reason of the present situation. It cannot affect a changed situation which may arise in the future. We do not think it necessary that the decree specifically authorize modifications as conditions in the neighborhood change." Ward v. Prospect Manor Corporation, 188 Wis. 534, 206 N.W. 856, 861, 46 A.L.R. 364.