WEIR, J., November 30, 1963.
The Parties and Pleadings
This case which is one of first impression in Pennsylvania involves both a bill in equity and a counterclaim in equity. Plaintiffs Stanton Land Company and Francis X. Totten instituted this litigation in an effort to nullify the effect of an order of January 24, 1963, which was issued against them by the Commission on Human Relations of the City of Pittsburgh which directs them to sell a lot to Doctor Oswald J. Nickens, who is a Negro. Defendants named in the complaint are the City, the Commission and its executive director Louis Mason, Jr., and City Solicitor David W. Craig. The counterclaim seeks to have this same directive of the Commission enforced by this court and presumably would have been filed as an original action by the City through Mr. Craig if plaintiffs had not already taken the initiative. In any event, the municipal ordinance under which the Commission functions requires the city solicitor to move to enforce the orders of the Commission by appropriate action which would necessarily be in this court, so that ordinarily we would expect the positions of the parties as plaintiffs and defendants to be reversed, but this is only a procedural peculiarity. A
The Background of the Litigation
In 1958, the City of Pittsburgh enacted ordinance no. 523, designated as a Fair Housing Ordinance. Its avowed purpose, stated here in the simplest terms, is to implement with respect to private housing accommodations the concepts expressed in the Fourteenth Amendment of the United States Constitution, and article I, sec. 1 of the Pennsylvania Constitution; namely, to provide that people may choose their place of residence without restriction resulting from race, religion, or national origin, and to promote the individual and public welfare by the eventual elimination of ghettos with their depressing effect upon the human spirit and their costly impact upon government in the form of reduced revenues and increased expenditures resulting from problems born of life in the slums. In order to accomplish its objectives, the ordinance prohibits individuals and corporations from refusing to sell residential property on account of the race or religion of the prospective purchaser, with certain exceptions which are immaterial at this time. The Commission on Human Relations is the agency of the City which is responsible for the administration of the ordinance by education, persuasion, and if necessary, by legal action. Under an ordinance, of course, the only penal sanction which can be invoked is a modest fine, after a summary conviction, with imprisonment possible only upon nonpayment.
Since 1957, Stanton Land Company, a corporation of which Francis X. Totten is the president and his wife the sole stockholder, has been developing for residences a tract of 40 acres in the tenth ward which is called Stanton Heights Manor Plan and which has been subdivided into numbered parts as the total project progresses. The lot involved in this case is number 271 in plan 2-A. Prior to June of 1962, Stanton Homes, Inc., a companion company, would erect custom built homes on the lots sold by Stanton Land Company, but after this date the sale and erection of the houses was turned over to a financially unrelated organization named Ryan Homes, Inc., which operates on a large scale in the field of housing which ranges from above average to luxury types. Ryan publicly advertised homes in Stanton Heights and Doctor Nickens decided to purchase one for a total cost in land and building of approximately $35,000 to be erected on lot 271, which is of suitable shape for the house model which was selected. Ryan's employes were proceeding to consummate the deal, although slowly and with apparent trepidation, but they withdrew when they ascertained definitely that Stanton Company, acting through Mr. Totten, would not convey the lot for this purpose. Ultimately, Ryan, in view of its own awkward position in these negotiations, agreed to build the house if the lot could be obtained, but Mr. Totten has persisted in his refusal to convey the lot. There the matter now stands, with the City of Pittsburgh urging that this court should require the sale of the lot to Doctor Nickens upon payment for it and plaintiffs taking the position that they should not be required to sell because they are not in violation of the requirements of the ordinance in the first place, and that the latter is completely invalid
The Violation of the Ordinance
A court does not pass upon the constitutionality of legislation unless the issue before it cannot be resolved otherwise: Robinson Township School District v. Houghton, 387 Pa. 236; Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579; and such constitutional evaluation is unnecessary here if plaintiffs have not in fact violated any clear provision of ordinance 523. The scope of the ordinance encompasses unimproved lots in its definition of housing accommodations or housing units and covers land which contains five or more lots in the control of a single owner. It is an unlawful practice "for any owner to refuse to sell. . . any housing unit . . . to any person . . . because of race, color, religion, ancestry or national origin." One of plaintiffs' contentions is that they are not refusing to sell to Doctor Nickens on account of his race, in the sense that this is not the sole reason for the refusal. It is Mr. Totten's position that Doctor Nickens would not fit into the neighborhood because he is aggressive as well as colored, and that he is motivated more by the aspiration to promote the cause of equality of races than by the simple desire to own a particular house in a particular locality. The reason for withholding the conveyance is summarized at one point as: "Quite honestly it is because he is a Negro and . . . as a Negro, he is a Zealot," and it is asserted that plaintiffs would not necessarily exclude any Negro in any circumstances.
Thus, there is a disclaimer of prohibited conduct because the refusal to sell is said to be based upon an acquired personality characteristic of the applicant which is wilful and not congenital; or at least that this acquired characteristic is a real and inseparable partial
In the first place it is not compatible with plaintiffs' forcefully emphasized contention that integration of residential areas of this sort eliminates the white market and would in this instance bring financial ruin to the development, because white persons represent the only potential market for housing in this rather high price bracket in this area. Without minimizing other arguments, it may be said that this is a fundamental substantive point in plaintiffs' entire case and that it is advanced without regard to the individual characteristics of the Negro family which initiates the integration. The prediction of bankruptcy in the event of the presence of any Negro family in Stanton Heights Manor Plan is somewhat at variance with the pronouncement that the entry of Negroes as such would not be resisted.
What is perhaps a more important consideration is that we cannot detect any reasonable basis for regarding
An even greater difficulty with the concept of aggressiveness as applied here by Mr. Totten is that it is predicated solely on the fact that Doctor Nickens was accompanied by his lawyer when he first came to Mr. Totten's office to request the sale of the lot. Immediately there is the question of whether we can say that a layman may be deemed aggressive because he takes a lawyer to a conference which is essentially legal. This could just as well be interpreted as a manifestation of timidity or at least as the display of an excess of caution; but we agree that it is not the usual thing to do when simply meeting to discuss the sale of a lot. However, this was not the usual situation which one encounters in seeking a lot. Here we have Ryan eagerly trying to sell houses and a customer with money eagerly trying to acquire one, but nothing happens after a deposit is accepted. Ultimately the seller must inform the buyer that the deal is off because the lot cannot be obtained, even though normally this detail has been taken for granted as it necessarily would have to be in a sales campaign directed toward the general public. In this anguished dilemma Ryan is forced to reveal that
It may be said that our discussion of aggressiveness or zealotry could well have been shortened by the mere observation that plaintiffs reached a settled determination to not sell to Doctor Nickens before Mr. Totten ever saw him or spoke to him, so that the presence of a lawyer or any objective thing or subjective impression related to the conference could not possibly have had any effect upon plaintiff's decision. Actually this seems to be the simple truth of the matter, but since this item is one of the two principal points involving factual conflict in the case, we have elected to analyze it in somewhat greater depth. Having done so, we are constrained to conclude that color alone has caused this controversy.
It might also be said that it is unnecessary to decide whether Mr. Totten's professed belief that Doctor Nickens is a zealot is tenable, since the former does not maintain that this characteristic alone would bar an applicant for a lot. Stanton Heights Manor Plan is not unavailable to persons who ardently embrace various political, moral or social theories, and it is not pretended to be any such dull place. So if we adopt the interpretation of the evidence which is most favorable to plaintiffs, we have a prohibition of a zealot who is a Negro, and the fact of being a Negro is an essential ingredient in the personality of the rejected individual and a substantial factor in causing the rejection. Thus, the terms of the ordinance are violated in this instance on plaintiff's own testimony. It would be otherwise if a developer refused to sell on account of zealotry alone since this would be the exercise of a permissible whim,
Before departing from this subject of aggressiveness it may not be amiss to concede the possibility that Doctor Nickens was, or became, rather touchy and ready to take offense during this affair, as plaintiffs insist. The suggestion of Mr. Totten that he would locate a home site for him elsewhere could in itself be infuriating to a professional person, although we know it was not intended to be. Apart from this, we scarcely can expect that one who grows up as a Negro in our society should not be somewhat susceptible to affront, even though many may not be. But in any event if we were called upon to establish reasonable standards of restraint in reaction to various measures of contumely, we would not be persuaded to declare that normal human patience of either Negro or white must equal that of a Gandhi.
The Validity Generally of Fair Housing Legislation
The forensic clash which occupies the stage more than any other struggle of conflicting ideas in this case relates to the implacably opposed concepts of plaintiffs and defendants on the issue of the importance of freedom of choice with respect to the disposition of private property, vis-a-vis the necessity of removing the aged restrictions on choice of residence which have fettered all but Caucasians, and even some of these at times. Most of the expert testimony and its attendant exhibits revolves around this focal point of dispute which is not irrelevant to the specific ordinance and the manner of its application, but which is more directly relevant to the basic constitutional problem divorced from the challenge to the right of the city to act in this area of government and the way it has acted.
There is no doubt that the possession and control of private property is a fundamental right in a free and open society. At certain times in our history, such as in the late thirties, the expression "human rights versus property rights" became an election slogan, but in the longer stream of our political life property rights have held their place among the important human rights which we revere. The sanctity of private property is more venerated in periods of prosperity when the majority have more possessions to protect, and presently its importance is underlined by our rivalry with communism and our hostility to that system which abjures private ownership entirely. None the less our commitment
So we have the equality of persons and the rights in property running parallel with each other, and if at times they seem to conflict, they must nevertheless exist together and yield to each other in the interplay of privileges and duties which is necessary for the general welfare: Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926); Best v. Zoning Board of Adjustment, 393 Pa. 106 (1958). The determination of what is necessary for the latter is clearly a legislative power exercised by the direct representatives of the people and not to be questioned by a court unless manifestly
Applying the frequently repeated principle of Ferguson to the specific subject of Fair Housing Legislation, the Supreme Court of New Jersey in Jones v. The Haridor Realty Corporation, 37 N.J. 384, 181 A.2d 481 (1962) says: (37 N.J. 392)
"Discrimination against Negroes in the sale and rental of housing accommodations results in inadequate housing for them and in segregation in housing. They are thus compelled in large numbers to live in circumscribed areas under substandard, unhealthy, unsanitary and crowded living conditions. These conditions in turn produce disease, increased mortality, unstable family life, moral laxity, crime, delinquency, risk of fire, loss of tax revenue, and intergroup tensions . . . All of these things imperil the tranquillity of a community. In addition, substandard and segregated housing seriously complicates the problem of public school integration. Manifestly, in their totality these conditions reveal an evil which it is within the competence of the lawmakers to correct."
The law is settled to the same end by final appeal in California, Burks v. Poppy Construction Company, 57 Cal.2d 463, 370 P.2d 313 (1962); in Colorado, Colorado Anti-Discrimination Commission v. Case, 330 P.2d 34 (1963); and in Massachusetts, Massachusetts Commission Against Discrimination v. Colangelo, 344 Mass. 387, 182 N.E.2d 595 (1962), and by lower courts elsewhere. A divided Supreme Court of the State of Washington decided otherwise in O'Meara v. Washington State Board Against Discrimination, 58 Wn.2d 793, 365 P.2d 1 (1961). The majority view in the latter case, which we reject, is based to a great extent upon the fact that the legislation in Washington applied only to publicly assisted housing. This reasoning does not — as we see it — take into account the emphatic statements
We have no doubt that the tradition and law of the very Commonwealth which sheltered the Continental Congress are consonant with the pronouncements of the majority on this vital issue, and that Fair Housing Legislation is constitutional in Pennsylvania.
The Validity of the Ordinance As Such
If governmental intervention in private affairs is permissible to the extent of interdicting racial choice in the sale of real estate, we are met by the more difficult problem of whether a city in this Commonwealth, and particularly the City of Pittsburgh has the right to occupy this area of governmental activity, and also whether it has done so properly in the terms of ordinance 523.
The legislative grant of power which is involved here is not recent, being contained in the Act of March 7, 1901, P.L. 20, art. XIX, sec. 3, cl. XLIII, 53 PS §23158, permitting the city council:
"To make all such ordinances, by-laws, rules and regulations, not inconsistent with the Constitution and laws of this Commonwealth, as may be expedient or necessary, in addition to the special powers in this section granted, for the proper management, care and control of the city and its finances, and the maintenance of the peace, good government and welfare of the city, and its trade, commerce and manufactures, and the same to alter, modify, and repeal at pleasure; . . ."
On its face this language is about as broad as the human mind could contrive to make it, and is at least as broad as the New York statute under which New
On the one hand we have this very expansive delegation of power and no other statute limiting its use for the present purpose. For what it is worth as a subsequent expression of the public policy of the Commonwealth we also have the constitutional amendment of November 7, 1922, article XV, section 1, which sanctions such delegation of power. On the other hand it is certain as can be that the legislature in 1901 did not intend that a city would ever require the transfer of real property contrary to the personal desire of the owner except by condemnation. We can safely assume also that no substantial number of voters contemplated any such thing in November, 1922, when they approved the amendment. This being true, as we believe it to be, a natural reaction is that the city could not possess and exercise a power which the grantors did not intend to bestow, or that the city could not go beyond the conscious intention of the Act of 1901 and
"In approaching this problem we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws."
The Role of the Commission on Human Relations and the Effect of its Orders
Another objection to ordinance 523 is that it invests the commission with a broad, undefined and nondelegable power to enforce the ordinance by issuing "such orders as the facts warrant".
This argument is not too impressive. It seems to assume a finality to the orders of the commission which they do not have. They are similar in effect to various directives which are commonplace matters in our lives at all levels of government. They are not self-enacting in their sanctions. Even the powerful and time honored commissions which are legislative arms of the Federal and State governments cannot imprison people or seize the assets of individuals or corporations for failure to
The ordinance does not and needless to say could not empower the commission to call directly upon the sheriff and the prothonotary, nor could it require this court to take jurisdiction by direct appeal and fix the conditions of appeal. Only the legislature could do the latter within reasonable limits and even the legislature itself could not do the former. This is why the record is certified "to the City Solicitor for appropriate action to secure enforcement of the Commission's order." In general the claims of government, as well as those of individuals against others, or vice versa, tend to give rise to justifiable causes which the courts must at least heed pursuant to Pennsylvania Constitution, article I, sec. 2, and consider further as the circumstances warrant. The courts are open to citizens who complain of wrongs inflicted upon them and no less so to municipalities. To say more would be to belabor the obvious since plaintiffs started this very litigation in reliance upon this simple fundamental right.
The delegation of legislative responsibility to administrative bodies is one of the numerous phases of law in which there are irreconcilable decisions from which to argue in any direction. If one advocate cites a case, his opponent can cite two others and so on. In fact, this is a condition which is fairly general in the law, and has grown increasingly so, perhaps inevitably resulting from the burgeoning complexity of social problems and the adjustments they require. However, we believe it fair to say that the legal philosophy which deplores delegation relates mostly to situations in which the administrative body is given the last word
Here we have no semblance of such an attribute in the subject order as is obvious from the fact that the chancellor heard the case de novo even though the counterclaim seeks only a civil judgment. It may be true in a narrow technical sense that the ordinance enjoys a presumption of validity, as contended by defendants, but if so it is of little consequence because we have not based our conclusions respecting constitutionality on such a tenuous ground as the burden of proof. As to all material factual matters which are involved here we agree with plaintiffs' position that the burden of proof is on defendants. If it were otherwise we would have to say that a city council could create presumptions or alter rules of evidence. No such ultra vires purpose or pretension is noted in ordinance 523.
The Legality of the Order of the Commission
We have alluded heretofore to the protest of plaintiffs that they will be destroyed financially if compelled to admit a Negro family into Stanton Manor Plan. This allegation, vehemently denied by defendants, is a part of the argument against the constitutionality of Fair Housing legislation generally and ordinance 523, particularly; but it is even more vigorously advanced against the specific order of the commission. Actually a preponderant part of the rather lengthy trial was devoted to this phase of the case, and to a lesser extent to the quality of the present habitation of the Nickens family, and other existing choices of location available to them apart from Stanton Heights. Plaintiffs' exhaustive written presentation also deals articulately with these items. In essence, it is the position of Stanton that the order of January 24, 1963, is so foreign to the purposes of ordinance 523, and so grotesquely
One facet of this argument, namely, the suggestion of political expediency depends upon the assumption that the order involved here is popular to the extent at least that it would be applauded by most of the local population. Yet if there is one belief in which all counsel concurred during the trial, and which they now reiterate in their briefs, it is the existence of widespread racial prejudice among whites who are in such an overwhelming majority.
This is the platform from which both sides prophesy disaster immediate or ultimate unless their respective views prevail. We are convinced that both sides believe these prophesies because they are so sure of the existence of this prejudice. Let us assume then that both are correct in their convictions that this prejudice is a powerful force in our society. If this be true, how can the order of the commission be popular and how can an order whose unpopularity can be so easily foreseen be the product of political expediency? On the other hand let us assume only for the sake of argument that the parties are wrong in this conviction and that most of the white population favors integration to the extent that they will support officials who support it. Then if this latter hypothesis should be the correct one, it would be hard to see how the presence of a Negro physician
Unfortunately the reality of this present moment in history seems to be such that if our eighteenth century Frenchman were alive and in politics he would be indulging in some very facile mental acrobatics. He would be giving lip service to integration while deploring the impossibility of achieving it within, shall we say, the lives of the audience. This is because most people are less than eager for equality of the races
The second and probably a more important aspect of the argument is that the ordinance should not be used in favor of high income persons who already are adequated housed and who also have other desirable locations available to them on a voluntary basis. As applied to Doctor Nickens it is said that he lives in a well built duplex in a good integrated neighborhood, has no personal problem which requires governmental intervention, and that his moving would accomplish nothing in the way of alleviation of substandard living conditions or any other social ill.
This is an unusual and resourceful line of reasoning. We usually hear it the other way around; that there should not be one law for the rich and another for the poor, and there are complaints that the law does not operate equally in this respect. For example, the opponents of capital punishment point out that wealthy people rarely go to the electric chair. This may be misleading because wealthy people are not often motivated
So it is surprising to be told that the ambit of the ordinance should not embrace higher income people, but of course we grasp that there is a distinction intended by plaintiffs to take this case out of the general rule. Counsel does not clarify this distinction by analogy, but we might assume that it is similar to saying that public assistance is not available to presidents of banks, which is an example of the law refusing help to those who do not need help. The banker does not require this contribution from the public treasury and the general welfare would not be served by augmenting his already ample funds. Which proves, we fear, only that arguing by analogy often leads to weird results. We prefer to turn the situation in reverse and ask what the public and legal reaction would be if the commission told people that it would not entertain their complaints because they had enough money to take care of their own troubles.
In this connection much more might be said but we shall restrict ourselves to one other comment. Prejudice is a fact which is conceded throughout this case beginning with plaintiffs' opening statement at the trial. It pervades all income groups of the white population.
The final point in this three pronged attack on the order relates to its economic impact upon Stanton Land Company, which is claimed to be so disastrous that the harm to plaintiffs is disproportionate to the convenience of Doctor Nickens or to any contribution to the cause of integrated housing, and therefore constitutes a deprivation of property without due process of law. During the trial this issue led to deep and prolonged probing into the processes of the human mind in the form of testimony by expert witnesses and volumes of treatises which were introduced. The witnesses of course were in sharp conflict. The illustrious authors naturally are more objective and restrained in their pronouncements which are to a large extent based upon studies which employ as scientific an approach as the researchers have been able to devise. Separately and in the aggregate these authorities are informative sources of knowledge of the actual effect of integration upon the market value of real estate, but as might be expected they make various comments which are seized upon by counsel on both sides to bolster their respective views. Since it is clearly impractical to attempt to summarize the conclusions reached in this mass of learned exposition
At this juncture we refer back to our general discussion of constitutionality and we reaffirm our view that the claim of financial loss is irrelevant if the ordinance is valid, as we have found it to be. However, assuming arguendo, that ultimately this conclusion should not prevail, the financial question must be considered within the scope of the facts relating to this particular case, and to the extent that it matters, the burden is upon plaintiffs to show the special damage which entitles them to be exempted in this particular case from the clear general requirements of this law. So it is within this frame of reference that we comment on the claim of oppressiveness of the order.
This is not the simplest task with which we have ever been confronted, and absent the possession of omniscience, we are capable only of naming some of the factors in the situation which might reasonably be expected to influence the result, if any, of the presence
In the first place we have the personality of the Nickens family, an obstetrician on the staffs of leading hospitals, who is adjusted to interracial contacts, and
Another factor is the geographical location of Stanton Manor Plan. In this connection it is understood that neighborhoods have their own outward appearances which set them apart from surrounding neighborhoods and that this usually depends less upon proximity than upon topography, street pattern and architecture. However, this particular development is so close to integrated areas and to a proposed public housing project that it is reasonable to assume that its present and potential occupants would not be people with the strongest segregationist emotions. This hitherto undeveloped acreage lies in the midst of residential sections of varying character. Some parts are densely built with modest dwellings which are old and integrated or preponderantly nonwhite including those on streets which are natural approaches to the plan. Such an expansive island of vacant land existed as such and became available through the demise of the last remaining private golf course inside the city limits. A shopping center has been built at the site of the former clubhouse, which is intended to serve whites and nonwhites equally, and which adjoins one end of the subject residential area. In this setting people have been purchasing new homes of superior quality as fast as could be expected in view of general real estate activity since 1957.
With respect to these people who have been locating in Stanton Manor Plan, it is said that they have varying occupations and it is apparent that they are not underprivileged. In fact, it is reasonable to assume
Not to be overlooked also is the combination which we have here of all new homes on spacious lots in a price range which has been reduced, but which is still out of reach of most people. The price factor is a basis for plaintiffs' dire forebodings of disaster under the logic, as previously noted, that the presence of a Negro family will discourage whites and will not simultaneously open a market for Negroes because so few of the latter have this kind of money. However, this
This apprehension of the whites that they will be out-numbered is a psychological phenomenon which is a powerful barrier to racial acceptance and it is accompanied by the additional fear that the housing will become crowded and dilapidated. They regard this as inexorable because they have seen so much population movement of this sort and so many Negroes living in substandard physical conditions. To the mind which is untrained in sociology it is normal to equate things which coexist in an environment as cause and effect, and to conclude erroneously that the ethnic characteristics of the inhabitants ipso facto produce their own milieu. We shall not attempt to add to the extensive literature which deals with this unfortunate misunderstanding since we are not really concerned here with what happens in the midst of a sea of poverty, but only with what happens at higher economic levels. As to the latter there are plenty of examples of Negroes entering white neighborhoods and living there for years without being joined by more Negro families and without any outward sign that they are there. All of the houses are well kept and the vacancies are consistent with normal turnover. This is not to insist dogmatically that the contrary does not also happen or to estimate the percentage of instances one way or the other. To attempt this would be speculative. Nor can we guess at the degree of contentment of those involved in the
We learn from the empirical observation of the specialists that these more or less successful and tranquil incidents of integration are aided by the sensation of relief which the white residents experience after the fact of mixed association compared with the awful fears of anticipation which beset them beforehand. Things sometimes turn out so well compared with what they expected that they could now be complete converts to the principle of equality except for one obstacle which the unexceptional person cannot surmount and that is the uneasiness he feels about his social standing as reflected by his place of residence. Maybe no one should be condemned for this uncertainty since it is an almost universal mental affliction. Its existence is recognized by counsel for plaintiffs in arguing that forced integration cannot succeed unless it takes place in all localities to some extent. While we agree with this, we cannot comprehend how any venture can be pursued without starting somewhere, and this sort of venture does not seem to get moving without the sanctions of law as witness the integration of public schools. Granting that the pace of the latter has been disappointing in the ten years since the Supreme Court order, it is still better by every single student enrolled than it was for the preceding 90 years. It may be the same way with housing and it may not come about without turmoil. In fact, we have had some of this in Pennsylvania already.
Related to the assumption that few Negroes can afford to purchase in Stanton Manor Plan is the corollary thought that these few are quite likely to be educated. It is our impression that a number of well educated whites are represented in the plan at this time. This may help. An expert witness for plaintiffs said that racial prejudice is even more rampant among educated
One final word as we come to the end of our discussion, and this is to comment on plaintiffs' offer to sell lot 271 to Doctor Nickens if the transaction might be delayed for 18 months. This proposal for settlement apparently was made in conversation of counsel when the commission was considering the complaint and it would not ordinarily be admissible but it was brought into the case voluntarily and is used by way of argument in
One thing is certain; that this litigation will accomplish approximately the same postponement if it is pursued on appeal. A large part of this delay is unavoidable because it is inherent in the Equity Rules of Civil Procedure.
But whenever this case comes to its end, be it early or late, let us hope that what is here transpiring will contribute something ultimately to the cause of human understanding.
Conclusions of Law
1. Equity has jurisdiction of this case.
2. The City of Pittsburgh's Fair Housing Ordinance No. 523 of 1958 is a valid enactment within the authority conferred upon the city by law.
3. The Fair Housing Ordinance is constitutional, generally and in its application to the facts of this case.
4. The burden of proof to establish violation of ordinance no. 523 in a "de novo" proceeding following an adjudication and order of the Commission on Human Relations is on the City of Pittsburgh.
5. Plaintiffs violated the Fair Housing Ordinance in refusing to sell lot no. 271 in the Stanton Manor Plan no. 2A to the intervening defendant.
6. The enjoining of plaintiffs to cease violation of the Fair Housing Ordinance, and to comply with it, is necessary and proper.
And now, November 30, 1963, in accordance with the foregoing findings of fact and conclusions of law, it is ordered, adjudged and decreed that:
1. Plaintiffs Stanton Land Company, a corporation, and Francis X. Totten, cease and desist from violating the Order of the Commission on Human Relations of the City of Pittsburgh of January 24, 1963, and ordinance 523 of 1958 of said City in refusing to sell lot 271 in Stanton Manor Plan 2A to Doctor Oswald J. Nickens; and that
2. Plaintiffs Stanton Land Company, a corporation, and Francis X. Totten, its president, sell and convey lot no. 271 in Stanton Manor Plan 2A to Doctor Oswald J. Nickens upon payment for same in accordance with the customary routine whereby Ryan Homes, Inc., builds houses in Stanton Manor Plan.
EDITOR'S NOTE. — Exceptions to the foregoing decree nisi were dismissed and final decree entered on April 27, 1964.