[This is the legal brief written for the most part by Dwight Murphey and submitted to the Colorado Supreme Court in 1962 challenging the Constitutionality of the then recently-enacted Colorado anti-discrimination law relating to housing.  Attorneys John E. Gorsuch and John L. Ferguson were the official submitters of this “friend of the Court” (amici curiae) brief on behalf of the Colorado Association of Real Estate Boards.  The Court, as anyone conversant with the ideological climate of the time might suppose, found in favor of the Constitutionality of the Act, thereby overriding almost two centuries of Constitutional protections in the areas of property rights, freedom of association and freedom of contract as described and advocated in this brief.  Murphey is proud to have defended those rights (although the writing reflects a less-than-compact style of those early years).  Today, the brief will be of particular interest to those who would like a review of what American Constitutional law provided before the sea-change that started in the late 1930s and picked up speed in the 1960s.  It never occurred to me to assert rights of whites as a group, as distinct from the rights of individuals.  To do so would have scandalized the Court at that time, as it still would [in 2011] when asserted on behalf of whites rather than of other ethnic identities.]


No. 19988

In the

Supreme Court

of the

 State of Colorado


The Colorado Anti-Discrimination Commission, et. al.,

                                    Plaintiffs in Error,




J. L. Case and Company, Realtors,

                                    Defendants in Error,




The Colorado Springs Board of Realtors, Inc.,



Error to the District Court of the County of El Paso, State of Colorado.

Honorable David W. Enoch, Judge


Brief of John E. Gorsuch and John L. Ferguson, Amici Curiae, Representing the Colorado Association of Real Estate Boards


                                    John E. Gorsuch

                                    John L. Ferguson

                                                Amici Curiae

                                    Dwight D. Murphey

                                                Attorneys representing Colorado Association of

                                                Real Estate Boards


Interest of the Amici 

            COME NOW Mr. John E. Gorsuch and Mr. John L. Ferguson, members of the bar of the Colorado Supreme Court, and under leave of Court previously obtained, present the following brief as Amici Curiae representing the Colorado Association of Real Estate Boards.

            The Colorado Association of Real Estate Boards is an organization composed of twenty-one member Boards located in all geographical areas of the State of Colorado.  The total membership of these Boards exceeds 1,800 real estate brokers and salesmen, all duly licensed under the laws of the State of Colorado.

            The brokers and salesmen represented by the Association deal on an everyday business basis with the buying, selling and renting of Colorado real estate.  They are necessarily vitally concerned with any legislation that significantly affects the sale and purchase of real property within the state.  The Colorado Fair Housing Act of 1959, involved in this litigation, is legislation that seeks broadly to exercise the police power of the state to limit and render unlawful in certain instances the free exercise of choice by real property owners in the sale of their property.  It affects intimately the broker and the salesman, who may in the service of his clients in some manner contravene the prohibitions of the Act.  Because of this intimate effect of the Act upon its members, and because of its place as a part of a broader community vitally interested in the liberty circumscribed by the Act, the Colorado Association of Real Estate Boards has felt an urgent need fully to present to the Court the grounds upon which it feels the Act has overstepped the bounds of legitimate and constitutional legislation. 

Statement of the Case 

            In September, 1959, plaintiffs-in-error James B. Rhone and Elizabeth O. Rhone filed a complaint with the Colorado Anti-Discrimination Commission alleging a violation of the Colorado Fair Housing Act of 1959.  The complaint was against J. L. Case, doing business as J. L. Case and Company, Realtors, a defendant-in-error on this appeal, and against two of his salesmen.  Only one of the salesmen, Reuben M. Stovern, is now a defendant-in-error, the other salesman not having sought judicial review of the Commission’s subsequent action.

            After a hearing, the Commission found the facts to be that in August, 1959, Case purchased in his own name a home located in an all-white neighborhood in Colorado Springs.  He placed it on the real estate market for resale, advertising the home in a local newspaper.  After inspecting the home, the Rhones informed Nelson Merrell, a salesman for J. L. Case and Company, that they were interested in purchasing it.  The Rhones made an offer of purchase in the form of a “Receipt and Terms of Purchase” instrument prepared by Merrell and executed a $500 note as earnest money.  Merrell took these papers to the J. L. Case and Company offices, where he informed Case that the Rhones were Negroes.  Merrell then met with the Rhones in an effort to dissuade them from buying the home because of their race.  Case later informed the Rhones that their offer was not accepted, and executed a deed to Stovern.  Stovern did not himself live in the home, but instead conveyed it two weeks later to a third party, who was another real estate salesman.

            The Commission held that Case had committed several unfair housing practices by his refusal to sell the home to the Rhones because of their race, and that Merrell and Stovern had aided and abetted in these practices.  The Commission ordered the respondents to cease and desist from committing the said unfair housing practices, and further ordered:

            1.  That the respondents cease and desist in the future from engaging in or committing any unfair housing practice, as defined in the Act.

            2.  That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtors, from the homes listed with him in his capacity as a licensed real estate broker, shall afford to these complainants the opportunity of purchasing a comparable home as the home in question in the same general neighborhood or a comparable neighborhood in Colorado Springs, Colorado, as the neighborhood in question, and under the same terms and conditions as such a home would be offered to any other person.

            3.  That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtors, inform the Coordinator of the Colorado Anti-Discrimination Commission within thirty days from the date of this Order, and at thirty-day intervals thereafter, concerning the manner in which he has complied with this order.

            4.  That the respondent, J. L. Case, doing business as J. L. Case and Company, Realtors, inform the Coordinator of the Colorado Anti-Discrimination Commission as soon as possible of the dates on which bona fide offers are made by said respondents to the complainants of comparable homes in the same general neighborhood or a comparable neighborhood in Colorado Springs, Colorado, as that of the home in question.

            Judicial review having been sought by the defendants-in-error in the District Court in and for the County of El Paso under the provisions of Section 7 of the Colorado Fair Housing Act, the District Court found that the findings and conclusions of the Commission were based upon substantial evidence, but that the Colorado Fair Housing Act of 1959 was itself unconstitutional.  The District Court ruled Section 6(12) of the Act unconstitutional as being indefinite and uncertain and as providing for an unlawful delegation of legislative power to an administrative commission.  Further, the District Court expressed “grave doubts” as to the constitutionality of the Act in other regards.  The Court remanded the case to the Commission with directions to vacate its order and dismiss the petition.  The present appeal followed. 

Summary of Argument 

            It is respectfully submitted that the Colorado Fair Housing Act of 1959 is unconstitutional upon the following grounds:

            1.  The Act denies to the plaintiffs-in-error the Equal Protection of the Laws guaranteed by the Fourteenth Amendment to the United States Constitution and implicit in Article II, Sections 1, 3, 6, 25 and 28 of the Colorado Constitution, in that the exclusions from the Act’s coverage create unreasonable classifications which have no substantial relation to the purposes of the Act.

            2.  The Act unlawfully deprives property owners within its coverage of their property rights without due process of law, such deprivation being in violation of the Fourteenth Amendment to the United States Constitution and Article II, Section 25, of the Colorado Constitution.

            3.  The Act unlawfully curtails the freedom of contract of property owners within its coverage, and of others dealing with said owners, in violation of the Fourteenth Amendment to the United States Constitution and Article II, Section 25, of the Colorado Constitution.

            4.  The Act authorizes an unlawful taking of private property for private use in violation of Article II, Section 14, of the Colorado Constitution, or—in the alternative—authorizes an unlawful taking of private property for public use without just compensation in violation of Article II, Section 15, of the Colorado Constitution.

            5.  The Act unlawfully confers upon the Colorado Anti-Discrimination Commission, an administrative body, judicial powers not merely incidental to executive or regulatory functions, such vesting of power being in violation of Article II of the Colorado Constitution pertaining to the Distribution of Powers.

             6.  The Act violates Article III of the Colorado Constitution, pertaining to the Distribution of Powers, in that it unlawfully delegates to the Colorado Anti-Discrimination Commission, an administrative agency, legislative power, failing in Section 6(12) to provide a sufficient standard by which the Commission may be guided in its action.

            7.  The Act violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution and of Article II, Section 25, of the Colorado Constitution in that Section 6(12) of the Act is so vague, uncertain and indefinite that persons making an investment of time or money in housing as defined by the Act or in services for the sale of housing may have the value of their investment reduced or destroyed, without adequate notice, by the subsequent operation of the Act. 


1.  Introduction: Scope of Review 

            It is only with the most serious intent that we have raised each of the seven constitutional objections to the Fair Housing Act which are listed above.  None is presented here as subordinate or secondary to the others.  Taken separately, each in its own right points to a specific limitation on the power of government, placed there in protection of individual liberties, or to a safeguard embodied in the constitutional structure of our form of government to preserve the integrity of its processes.  Taken together, they illustrate once more the closely-woven nature of our institutions, rights and duties, since when an Act has overstepped the bounds of constitutional limitation in one particular, it is not at all surprising that there may be recognized in it a violation of several of the interests that the state and national constitutions seek to protect.  It is not to be supposed, therefore, that the multiplicity of these objections implies that one of them is included to add to the sheer weight of the argument.  Each is advanced as seriously as if it stood alone in this litigation as the sole legal barrier to the Act in question.

            The District Court stated as the basis for its dismissal only the last two of the seven grounds discussed, although in its opinion it touched upon certain of the others.  It considered the Act unconstitutionally vague in Section 6(12), which is the key to the Act, and found in this same section an unconstitutional delegation of legislative power.

            In reviewing an order of dismissal entered by the trial court, this Court is, of course, not limited to a consideration of the grounds expressed by that court for its order.  It may go further and consider the five other constitutional objections that are raised here.  The Supreme Court will not reverse a dismissal by a trial court if there exists any ground for that dismissal.  This rule as to the scope of review, which is necessary both out of respect for the lower court and for the efficient administration of cases, has been stated in 5 C.J.S. at page 675:

            “An appellate court, in reviewing a judgment of dismissal or nonsuit, is ordinarily not confined to the ground assigned by the lower court but may consider any other legal ground or valid reason for the judgment and affirm the judgment where it is correct on any legal ground….”

            The same rule is expressed in 3 Am.Jur. at page 369, where it is said: “The reasons given by a court for dismissing an action are not controlling in a reviewing court where the only question is whether or not the dismissal can be sustained in law.”

            Although the district court based its dismissal on only two of the constitutional grounds and the others were therefore “not essential to the decision” because any sufficient ground is always enough by itself to justify dismissal, the seven constitutional grounds discussed here may all be considered, and it is necessary for this Court merely to uphold one of them in order to affirm the judgment entered below. 

II.  The Constitutional Issues 

            A.  The Act Contains Unreasonable Classifications Violating the Equal Protection of the Laws.  

            It is perhaps ironic that a statute that arises out of a tradition that has sought to maximize the equal protection of the laws in matters of race should itself fall subject to a serious objection that it violates that very principle and denies the equal protection of the laws to those upon whom it operates.  It is not with satisfaction that we point to this contradiction.  The presence of such a contradiction, however, does serve to illustrate once more that it is easy, in any zealous effort either to safeguard or to extend the interests of one segment of our society, to fail to give due regard to the careful balance of those interests that the constitutions seek to accommodate for the benefit of all citizens.  In this connection, we must remember that even goals of the most praiseworthy sort must be accomplished by lawful means.

            The Equal Protection of the Laws is guaranteed by the intrinsic nature of free government, but finds particular expression, so far as state action is concerned, in the Fourteenth Amendment to the national Constitution.  The Constitution in Colorado does not explicitly mention it, but it may certainly be inferred from various sections of our state Bill of Rights, particularly Article II, Sections 1, 3, 6, 25 and 28.  Section 1 states that “All government… is instituted solely for the good of the whole.”  Section 3 recognizes the inalienable rights of all persons.  Section 6 provides that courts of justice shall be open to every person.  Section 25 is the Due Process Clause and Section 28 states that the enumeration of certain rights shall not be construed to deny, impair or disparage others that are retained by the people.

            An unreasonable classification contained in the Fair Housing Act appears in Section 3 (c) thereof, which defines the term “Housing.”  This definition is an essential key to the coverage of the Act, since the Act does not purport to deal with anything other than the “Housing” included within the definition.

            Section 3 (c), to which the objection applies, provides—in its first part—that:

                        “‘Housing’ shall mean any building, structure, or part thereof which is used or occupied, or is intended, arranged or designed to be used or occupied as the home or residence of one or more human beings; or any vacant land for sale or lease;….”

            The definition might have stopped here.  In such a case, the Act would have applied uniformly to all homes and other forms of housing usually included within the normal acceptation of the word.  No violation of equal protection would have occurred.  But the definition continues:

                        “…but does not included premises maintained by the owner or lessee as the household of his family with or without domestic servants and not more than four boarders or lodgers.”

            This exclusion is hard to rationalize, unless it be assumed that it was written into the Act under the mistaken impression that this language would save the Act from an objection that it violated the constitutional property rights of the individual.  We can only wonder why the Act should apply where a person owns a residence but does not maintain it for his own family, leaving it unoccupied, occupied by friends, or occupied by someone renting from him, but does not apply if he and his family are living in it.  A man may, for example, own a duplex.  On one side of the duplex, he may reside with his family and four paid boarders.  That side of the duplex is not covered by the Act.  But the adjacent unit would seem to be covered.  It may not be rented or sold without compliance with the mandates set forth in the Act.  So far as the sale or the financing of the sale of the real property involved is concerned, or so far as the rental of property is concerned where the owner intends to leave the property and reside elsewhere, this classification by the statute would seem to be utterly without rhyme or reason.  It isn’t tied in with matters of “public accommodation” so as to include within the Act only homes made a part of continuing business transactions.  The Act merely states that if the owner or lessee maintains the premises as the household of his family, and doesn’t have more than four boarders or lodgers, he can sell the property to whomever he pleases, according to his own choice, unlimited by the proscriptions of the Act.  In the illimitable variety of other circumstances, Section 5 (a)(i) makes it an “unfair housing practice” to follow one’s own choice in making a sale, if the choice reflects a decision not to sell to a person because of his race, sex or religion.

            The only rationale that would support this classification is in connection with the rental of housing where the owner intends to remain on the property.  The rationale does not otherwise apply.  If a man lives with his family in a home and the group is limited to what might be assumed to be a fairly intimate group, as by the additional admission of a small number of boarders or lodgers, then clearly the intimacy of the resulting association demands that, so far as his choice of boarders or lodgers is concerned, he should be recognized in his right to choose such close associates according to his own eccentricities and caprices.  Otherwise, his freedom of association is intolerably violated by forcing him to live closely with persons not of his own choosing.  But these same reasons apply with equal force to various types of rental situations which are nevertheless included within the scope of the Act.  One of these situations involving intimate contacts between persons would be the “duplex” example already mentioned here.  On the other hand, these considerations giving rise to an exclusion do not apply to various types of housing that are covered by the exclusion.  Therefore, different standards are applied by the Act to various classes of owners who stand in the same basic relation to one another.

            The classification is clearly unreasonable as to (1) sales, (2) the financing of sales, and (3) rentals where the owner intends to leave the property.  The constitutional defect inherent in this unreasonableness is not cured by the fact that the classification may be reasonable in some other limited connection.  So far as the owners are concerned in the situations we have listed, there is a denial of the equal protection of the laws, because one owner is treated differently than another by the law, without a reasonable basis for the difference in treatment.  For example, the owner who sells his residence while he still occupies it, but moves out immediately, has no different interest than the owner who sells it after vacating the property.  However, one is within the Act and the other is not.

            This Court has made it clear that if a statute is to be upheld its classifications must be founded upon “an actual, reasonable, and substantial difference.”  The classification must be “reasonable.”  Consumers’ League v. Colorado & Southern Railway Co., 53 Colo. 54 (1921).  This test, as generally held throughout the United States and by the United States Supreme Court, was succinctly stated in Champlin Co. v. Cruse, 115 Colo. 329 (1946) as follows:

                        “Equal protection in its guarantee of like treatment to all similarly situated permits classification which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved.”  115 Colo. At 333.

            This is substantially the same statement of law as has been adopted in other jurisdictions.  16A C.J.S., page 330 states:

                        “It is only required that the classification be based on some legitimate distinction, that it have some substantial relation to the object of the legislation, and that the regulations apply alike to, and not discriminate against, members of a class.”

            Questions pertaining to the equal protection of the laws have been raised in other cases involving Fair Housing Acts enacted in other states.  Those Acts, however, extended their coverage only to include “publicly assisted housing.”  The issue in those cases was whether the inclusion only of housing of a “publicly assisted” nature was an unreasonable classification.  This, of course, is not the question before us in this case.  It is interesting to note, however, that in those cases, which have concerned a more logical classification, the courts have been split in their opinion on the constitutional issue.  Levitt & Sons v. Division Against Discrimination, 56 N.J.Superior 542, 153 A.2d 700 (1959) and New York State Commission v. Pelham Hall Apartments, 170 N.Y.S.2d 750, 10 Misc. 334 (1958) considered the “publicly assisted” classification to be reasonable.  On the other hand, the classification was found to be unreasonable in O’Meara v. Washington State Board Against Discrimination, 365 P.2d 1 (Wash. 1961).  These cases are of at least academic interest here, because they deal with the “unreasonable classification” issue in connection with legislation much more limited than, but somewhat similar to, that presently before this Court.  While they are cited here because of their background interest, it should be carefully noted that the classification contained in Section 3 (c) of the Colorado Fair Housing Act is altogether different from the classifications debated in those cases, and must stand or fall according to its own merits.

            The facts that the present case is one involving “race relations” and that the Equal Protection doctrine is often invoked on behalf of racial minorities ought not to obscure the further fact that the doctrine of the equal protection of the laws is a more general principle that must prevail in any free government for the protection of all the people.  It is a doctrine that has long formed a part of the concept of the Rule of Law accepted as essential by western civilization.  Like the Separation of Powers, it is inherent in Harrington’s famous dictum, which called for “the empire of laws, and not of men.”  The doctrine is more ancient than the Fourteenth Amendment or the Colorado Constitution.  It would be unhistorical nonsense to argue that the Fourteenth Amendment was enacted only to deal specifically and narrowly with the problems arising out of the prior existence of slavery, and that therefore the Equal Protection of the Laws cannot be invoked against a statute that purports to ameliorate the condition of racial minorities.  Equal Protection is not so limited.  It is fundamental to the reduction of capriciousness and misuse of power in the governance of men.  It says, “The law must not treat men differently, unless there is a bona fide reason for doing so.”  This is true, whether we are speaking of members of races, or the members of a class of persons whom, for want of a better name, we may call “sellers of residential property.”  In any case, all the members of the class must be treated alike by the law.  The only ground upon which they may be treated differently from each other is if there exists some reasonable basis for the distinction founded in a substantial relation to the purposes sought by the legislative authority.  There can be no “distinctions without a difference.”  And so it is, or ought to be, with Section 3 (c) of the Fair Housing Act. 

            B.  The Act Infringes the Human Right to Own Property by Depriving Owners of an Essential Attribute of Their Property Right Without Due Process of Law. 

            The right of the individual to own, control and dispose of his property is a fundamental principle upon which our free way of life is based.  This principle is recognized by all aspects of our law, including our criminal, tort, contract, sales, property, negotiable instruments, and other law.  Indeed, the principle of private property is the main difference, economically speaking, between our free society and a society based on state socialism.

            The power freely to alienate one’s property is a fundamental part of that “bundle of rights” that makes up property ownership.  Much of the value of property to the owner derives from his power to sell, devise or give it away.  Our entire economic system, supported by law, is based on the so-called “act of exchange,” which would itself be impossible without the right to alienate one’s property.  To act in derogation of this right of alienation is to strike at the ownership itself and to deprive the owner of an essential feature of his property.

            The Colorado Fair Housing Act of 1959 touches intimately this attribute of ownership.  It declares it to be an “unfair housing practice” to discriminate on the basis of race, color, creed, sex, national origin or ancestry in the sale, rental or leasing of the housing included within the coverage of the Act.

            The Anti-Discrimination Commission is vested with administrative, legislative and judicial powers for dealing with the acts defined as unlawful.  Under Section 6 (12) of the Act, the Commission is empowered to order persons to “cease and desist” from any such sale, rental or leasing, and is even empowered, by the explicit terms of the Act, to order the transfer, rent or lease the property contrary to his own wishes.

            It is vitally important to understand that the property coming within the coverage of the Act is not limited to property that is used in the providing of public or quasi-public services.  Numerous “civil rights” statutes regulating activities of public accommodation have been upheld as constitutional.  The Fair Housing Act is not among them.  It differs essentially from such statutes, in that it goes far beyond the regulation of inns and barber-shops and the like, and extends to the proscription of the full exercise of property ownership by persons in their most private undertakings.  Even if the sale is the only sale the owner has ever made, the Act applies.  It does not pretend to limit its application to the business of home-selling; it affects even the most private sales.  Although serious questions could be raised even if it were so limited, one thing is clear: This Act goes much further than do the statutes regulating places of public accommodation.

            Indeed, the Act goes much further than has any statute thusfar passed upon by the courts dealing with the subject of discrimination in the sale or rental of housing.  So far as your amici have been able to determine, Colorado is the only state where there has as yet been a court test of a statute that seeks to extend its prohibition to private owners without at least requiring first that they be involved with “publicly assisted” housing, as by having an F.H.A. insured loan in effect.  While—as we will see later in this brief—the “publicly assisted” requirement raises the Equal Protection question upon which the courts of other states are split, there can be no question but that such statutes are in a stronger position on due process questions than the Colorado Act, since it may be argued as to them that if the government grants benefits that the owner accepts, the government thereby has the right to exercise some control over the property.  No such argument, however, is available in support of the Colorado Act.

            What, then, may we say about the constitutionality of this particular Act so far as substantive due process is concerned?  We will make it clear, from the outset, that our conclusion is strongly that the Act is unconstitutional.  But the necessity for this conclusion can be appreciated more fully from an examination of the philosophical components of our free society based on the private ownership of property, and of the relation of property to the police power and of both of these to the broader cements of our civilization.  Before making a detailed examination of the underlying legal authorities, we will undertake a preliminary examination of these philosophical components:

            1.  The need for perspective.  We live in an age that is fascinated with laws, using “laws” as signifying authority, and not in the impassive neutral sense that we know as the “rule of law,” the arbiter of free action.  We have more laws, and at least as much chaos, as in any other age in history.  The rule of law is essential to a civilization of ordered liberty, but laws as a means of command may become instruments of authoritarianism.  That this is so is a lesson that our generation has relearned from its own experience, just as prior generations knew it from theirs.  It is a lesson that has been learned dramatically in Russia, in China and in Cuba, and even—although more quietly—in our own country.  Because of the presence in our own time of much authoritarian misuse of law, we must avoid taking an enhanced and distorted perspective of the role played by governmental  command.

            2.  The role played by law, morals and personal liberty.  In a free society, law is but one factor holding the society together and propelling it along its course.  Law is one of the determiners of human conduct.  So also is the moral composition of the men and women who make up the society.  What they think, the virtues and vices they possess, contribute immensely to the outcome.  Thus is determined the great flux of human life, and all basic human relationships derive their quality from this moral composition.

            Law, which involves the assertion of the coercive power of the state, cannot hope to replace morals in a free society.  At best, it can only hope to complement them, lending its assistance in certain of the more palpable cases.  Only in a limited sense is law effectual as a means of legislating morals.  Law cannot hope to deal with all human vices, even though these vices are important to the people in general.

            The non-omniprescence of law is necessarily present even in a thoroughly communized society, since even there the breath of free choice will not be entirely suffocated.  So long as there is choice, there is the chance that the choice will be made in moral error, not meeting the ideal standard that others may have wished it to reach.

            A free society must place even greater reliance on morals than its authoritarian counterparts.  There is a large area of human vice that must be left to moral judgment if we are to be free.  This is so because it would be impossible to do away with the choices of which the vice is but an exercise, without doing away with the area of choice itself.

              For this reason, a free society will never be an “ideal” society.  It will always be diluted with the error and vice that is concomitant with free thought and behavior.  To those who hold other values, no matter how noteworthy, in higher esteem than they do the area of personal choice and self-expression, the system will always seem more or less unsatisfactory, and they will not be content with it until they have “reformed” the vices that are inherent in its operation.  And a preoccupation with the evils they seek to remedy, and with the “urgency” of alleviating them, may well make such reform appear attractive to those who have lost sight of the total values our civilization seeks to embody.

            3.  The need for a broad area of personal choice.  One of these values, as we have already seen, is the making possible of a broad area of personal choice.  In the exercise of this choice, the moral order must play a significant role in encouraging the making of worthwhile decisions.  The important point is that such moral control is compatible with, and co-extensive with, the area of choice.

            But law and the police power are necessarily far more restricted.  If there is to be liberty, the law must leave to the moral order the control of those evils that are so integrally related to the freedom of choice that they cannot be separated from it and made subject to punishment or regulation without significant injury to the liberty of the individual.

            4.  The inseparability of the right freely to alienate one’s property from the more general area of liberty.  The question we must ask is whether it is possible to say to an owner of property that “You must not discriminate on account of race, creed, sex or national ancestry in its sale or rental,” and to say this as a matter of governmental injunction rather than of moral injunction, and still leave the effective area of choice substantially impaired.  The answer to this question is not immediately obvious.  Those who take a less realistic view of the over-all problem will be quick to say, for example, that “The owner is only forced to sell equally if and when he chooses to sell, and even then he may select his own terms, being merely required to make them available to all comers irrespective of the irrelevancies of race.”

            This argument overlooks the vital point, however, that property ownership is intimately involved in almost everything the free man does.  It is not off by itself, a separate category in the reality of his life.  Only analytically, as we intellectualize about it, is it separate.  Nor is this attribute of property, the right freely to alienate it, a simple right to sell in an isolated circumstance.  Rather, the whole pattern of a man’s community life is based on the fabric of free choice which this and other liberties give him.  Take away essential threads of that fabric and you have taken away the whole tone of his life that has depended on it.  While it is true that, considering a single sale, the seller is no longer involved with the property sold, except perhaps as a mortgagee, it is still more true that it has been the liberty of a man to choose freely to whom he will rent or sell that has made it possible for him to choose the type of neighborhood in which he wishes to live and the associations he and his children will have as a result of the close proximity of his neighbors.  For whatever reasons may lie deep in the human heart, these things are supremely important to the individual.

            When we speak of “property rights” or of the right freely to “alienate” one’s property, we are not speaking of something cold and formalistic; we are speaking instead of a life in which ordinary men can determine, out of their own choices, the flavor of their surroundings and associations.  When the overall life of a man in society is considered, the freedom of choice in the sale of one’s property cannot be separated, as a practical matter, from his freedom of association, his freedom to choose his surroundings, and the whole tenor of his life.

            This inseparability of property rights from the overall value of his liberty and other interests, especially as the inseparability relates to the present case, is the basic reason the exercise of choice that is inherent in property rights must be left to the moral order to control rather than to the police power.  Moral control will leave him his liberty, but guide him in the application of it, while the police power will deprive him of it and in so doing affect to the very marrow the whole of his existence.

            No doubt this is only such a solution as the principles of general freedom would dictate, and is not what those who are more Utopian in terms of specific, immediate solution to the discrimination problem would suggest.  Because it protects the freedom of choice inherent in property ownership, it makes it possible for men and women to choose wrongly, and to judge their potential associates not according to their individual merit, but according to artificial standards based on race.  There can be no doubt but that such attitudes are contrary to the dignity of the individual.  Such erroneous moral judgments, in effect, make the intellect, the talent, the moral sensitivity and the humanity of the Negro into a seeming irrelevancy, so that no matter what the Negro may be as a man, he must suffer the consequences of this narrowness of judgment.  Nothing could violate an ethic based on liberty more than such intolerance.  Such injustice frequently requires solution.  But as with all evil inseparable from general liberty, the solution must be accomplished through persuasion and moral force, and not through governmental coercion which would destroy the liberty of all to ameliorate the injustice to a few.

            This is not merely a matter of preference, however, between “education” as a solution and a quicker solution by law.  The issue goes much deeper.  Education and moral force are slower solutions compatible with leaving intact the exercise of individual judgment.  The other is not merely a quicker solution, but a destructive one.  Through the medium of a restriction of property rights, it would cut deeply into the related freedoms pertaining to neighborhoods and associates.  A “solution” having such an effect is incompatible with the mutual accommodation of vital interests that must be worked out under our constitutions.

            The importance of recognizing the right of men to act upon their choices as to associates was well stated by the English philosopher John Stuart Mill in his essay “On Liberty,” where he said:

                        “We have a right, also, in various ways, to act upon our unfavorable opinion of anyone, not to the oppression of his individuality, but in the exercise of ours.  We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us.”  The English Philosophers from Bacon to Mill, Modern Library, 1939, p. 1009.

             In the statement by Mill, it is to be noted that the right of a person to act upon his unfavorable opinion of anyone is essential to the exercise of his own individuality.  The right is certainly not to be protected out of a spirit of oppression for the individuality of the person against whom the unfavorable opinion is rendered.  The right springs from a positive, not a negative, although its recognition may have important negative consequences.

            Thusfar, for the sake of simplified expression, we have discussed the principles relevant to this Due Process objection to the constitutionality of the Act in general terms without referring to the many legal authorities underlying our position.  We will state in what follows the legal basis for the considerations raised.

            The Due Process clauses applicable in the present instance are those contained in the Fourteenth Amendment to the United States Constitution and in Article II, Section 25 of the Colorado Constitution, which states: “No person shall be deprived of life, liberty or property, without due process of law.”  It has long been established that these provisions operate in protection of individual rights as against state action in derogation of them.  They do not themselves have any operative effects against private action as such.  This is apparent in the following statement from 14 A.L.R.2d at page 156:

                        “The Fourteenth Amendment of the Constitution of the United States, and particularly the equal protection of the laws provision, seems not to touch the matter of racial or religious discrimination engaged in by the private owner of private real estate simply by refusing to rent or sell such real estate to another because of the latter’s race or religious belief.”

            Mr. Justice Frantz of this Court, in his dissenting opinion in the second case of Colorado Anti-Discrimination Commission v. Continental Air Lines, decide February 13, 1962, pointed out, in connection with a Fair Employment Practices Act, that “Colorado has activated the prohibitions of the Federal Fourteenth Amendment by enacting a law forbidding discrimination in employment based on race….”  He proceeded to make it clear that he did not mean that the Colorado employment statute literally activates the Fourteenth Amendment.  Since it would be easy to fall into the error of thinking that there is some relation between that Amendment and a state statute prohibiting some form of discrimination, we ought perhaps to comment here upon the important distinction between the two.  In both spirit and legal effect, the Fourteenth Amendment seeks to activate the fiduciary duty, so to speak, of state governments to treat their citizens alike and not to deny any citizen the due process of law.  It seeks to correct an abuse by the sovereign in its relations with its citizens.  State statutes, on the other hand, seek to regulate various types of non-governmental activity.  Some of these activities are “public” or “quasi-public” in nature, as may be said of businesses hiring employees.  Others may be purely private, as with a homeowner selling his home.  It is important to keep in mind these distinctions between governmental activity, “quasi-public” activity and purely private activity.  The principles that apply to one may not be the same as apply to the others.  For example, there is nothing in the spirit or the legal effect of the Fourteenth Amendment that calls for an extension of the state police power to permit a regulation of private homeselling, since it could hardly be argued seriously that the Fourteenth Amendment is in spirit oblivious to the difficult issues just discussed in this brief calling for an accommodation of conflicting interests under the constitutions.  Those issues must be determined on their own merit.  The Fourteenth Amendment does not itself determine them and resolve them in favor of the police power.  Indeed, if after they are resolved it appears, as it must, that the state police power cannot extend so far as the Fair Housing Act would seek to extend it, it is precisely the Fourteenth Amendment that will strike it down.

            In the leading United States Supreme Court case on the subject, that Court stated that “(The Fourteenth Amendment) erects no shield against merely private conduct, however discriminatory or wrongful.”  Shelley v. Kraemer, 334 U.S. 1, 68 Sup. Ct. 842 (1948).  The same principle has been expressed in Davis v. Foreman, 251 F.2d 421 (7th Circ. 1958); Baldwin v. Morgan, 251 F.2d 780 (5th Circ. 1958); Spampinato v. M. Breger & Co., 166 F.Supp. 33 (D.C.E.D. New York 1958); Dorsey v. Stuyvesant Town Corporation, 299 N.Y. 512, 87 N.E.2d 541 (1959); and other authorities too numerous to mention.  In Corrigan v. Buckley, 55 App. D.C. 3, 299 Fed. 899, it was particularly stated, in a discussion of the non-extension of constitutional limitations to the actions of individual citizens, that “the individual citizen, whether he be black or white, may refuse to sell or lease his property to any particular individual or class of individuals.”

            The courts have long recognized that liberty consists of the interrelated existence of a number of rights, no one of which fully expresses the scope of a man’s freedom.  An excellent example of this attitude may be found in the Colorado opinion of Chenoweth v. State Board, 57 Colo. 74, 84 (1914), where the Court stated the conviction that “The expression in the  Constitution, ‘life, liberty and the pursuit of happiness,’ is general in character, and includes many rights which are inherent and inalienable.  Many of the rights referred to in this expression are included in the general guarantee of ‘liberty.’  The happiness here referred to may consist in many things, or depend on many circumstances….”  In like manner, this Court has said that “The term ‘liberty’ as used in these sections, connotes far more than mere freedom from physical restraint; it is broad enough to protect one from governmental interference in the exercise of his intellect, in the formation of opinions, in the expression of them and in action or inaction dictated by his judgment, or choice in countless matters of purely personal concern.”  Zavilla v. Masse, 112 Colo. 183, 193 (1944).  Similar statements may be found in People v. Stanley, 81 Colo. 276,280 (1927); Father Basil’s Lodge v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805, 812 (1946); and in State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

            The right to own private property is, of course, recognized as an integral part of human liberty, and the right freely to alienate one’s property is a necessary part of the property right itself.  Property rights were given explicit recognition in City and County of Denver v. Denver Buick, Inc., 347 P.2d 919 (Colo. 1960).  Quoting from the United States Supreme Court case of Buchanan v. Warley, this Court pointed out that “property is more than the mere thing which a person owns.  It is elementary that it includes the right to acquire, use, and dispose of it.  The Constitution protects these essential attributes of property.”  The italics were supplied by the Colorado Court itself, and reflect this Court’s awareness that the right to dispose of property freely is an essential attribute of the right of ownership.  This is in keeping with the law as stated in 14 A.L.R.2d at page 155, where it is said: “One of the principal elements of property is the right of alienation or disposition.  This includes the right to alienate or dispose of it in any lawful manner which the owner deems fit….”

            This fundamental principle has been recognized by the Illinois Supreme Court in Father Basil’s Lodge v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805, 812 (1946).  The court stated:

                        “‘Property’ has been defined to include every interest anyone may have in any and everything that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same;….”

            Necessarily, of course, purely private activity is treated differently than activity of a governmental or “public” nature.  Indeed, certain types of private activity, where of a “quasi-public” nature, have been subjected to legitimate statutory restrictions, as will be seen later in this brief in our discussion of the history of “civil rights” legislation.  It is enough for our present purposes to point out the distinction between such “quasi-public” cases and the type of problem we are now discussing.  In a case arising under a statute forbidding discrimination in places of “public accommodation,” the Nebraska Supreme Court upheld the statute after pointing out that “A barber, by opening a shop, and putting out his sign, thereby invites every orderly and well-behaved person who may desire his services to enter his shop during business hours.”  The court held that the power of the state could properly extend to the regulation of such places of public resort as barber shops.  Messenger v. State, 25 Neb. 674, 4 N.W. 638 (1889).  The distinction, of course, between such places and activities and the action of a private homeowner in the sale of his property is too obvious to require extended discussion.  It would seem apparent that such cases pertaining to labor unions, restaurants, steamships and amusement parks as are cited on page 33 of the brief submitted by the Anti-Defamation League in this case can establish no precedent validating state regulation of the conduct of private individuals when  they are acting in a purely private capacity.  Certainly little is more private than a man’s ownership of his own home.

            It is popular among those who seek the never-ending extension of governmental power to cite certain fragments of authority that appear to place little or no substantive restriction upon the power of the state.  Such fragments, however, cannot be taken as a full expression of the law.  It is not enough simply to state that a law must be “reasonable in relation to its subject” and “adopted in the interest of the community” in order to be a proper exercise of the police power.  In light of the large body of law recognizing the constitutional restrictions of substantive due process upon the police power, the few cases that have gone to this extreme must be looked upon with circumspection, viewed in light of the particular factual situations with which they deal.  This is especially true where the issue under discussion arises under state law and state constitutional issues are involved.  In speaking of the police power, Mr. Justice Moore of this Court has stated:

                        “In every case the power to regulate must not be arbitrarily imposed; it must be so exercised as not, in obtaining a permissible end, unduly to infringe the protected freedom.”  In Hearings Concerning Canon 35, 296 P.2d 465, 468 (Colo. 1956).

              The limitations of substantive due process were likewise recognized by the Colorado Court in Denver Union v. Buckingham Co., 108 Colo. 419, 425 (1941), when it was stated:

                        “That a state has ample power to regulate the local problem thrown up by modern industry and to preserve the peace is axiomatic.  But not even these essential powers are unfettered by the requirements of the Bill of Rights.”

            A similar statement is contained in People v. Harris, 104 Colo. 386 (1939).  The Court pointed out that “Any legislative exercise under the police power which violates any right guaranteed by the national or state Constitutions is invalid.  ‘Freedom is the general rule, and restraint the exception.’” 104 Colo. at 397.

            That there is a “fundamental law” that the police power cannot transcend was explicitly recognized in People v. Nakamura, 99 Colo. 262 (1936).  “The police power of the state cannot transcend the fundamental law, and cannot be exercised in such manner as to work a practical abrogation of its provisions.”  99 Colo. at 265.  Quoting from a former Chief Justice of the Supreme Court of the United States, Charles Evans Hughes, the Colorado Court affirmed in City and County of Denver v. Denver Buick, Inc., supra, that “The firmest ground for confidence in the future is that more than ever we realize that, while democracy must have its organization and control, its vital breath is individual liberty.”  347 P.2d at 924.  This same strong awareness of the restrictions of substantive due process upon the police power is shown in this Court’s opinion in Olin Mathieson Corporation v. Francis, 134 Colo. 160 (1956).  The Court stated: “The police power of the state exercisable by the General Assembly, while very broad, is exercisable only within the limits of the Constitution.”  134 Colo. at 176.  Declaring the Colorado Fair Trade Act unconstitutional, the Court regarded the “right to contract” as “a property right, protected by the due process clause of the Constitution” and held that it “cannot be abridged by legislative enactment.”

            Considerations of individual liberty as embodied in substantive due process have throughout the Court’s history weighed heavily in its determination of the constitutionality of attempted extensions of the police power.  In light of the above cases, it cannot reasonably be argued that the doctrine has receded in Colorado.  The following earlier cases are very similar to the more recent ones:

            People v. Hinderlider, 98 Colo. 505, 508 (1936): “The police power cannot transcend the Constitution nor be so exercised as to abrogate it.”

            People v. Hupp, 53 Colo. 80, 83 (1912): “If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge, and thereby give effect to the Constitution.”  (Emphasis added)

            Contrary to the views sometimes expressed by those pressing for more and more regulation under the police power, the fact that a statute may “promote the public health, morals, safety and welfare” is not sufficient to sustain it if it also contains a palpable invasion of constitutional rights.  This is clear particularly from the language in People v. Hupp, supra, where—speaking of a statute that “is evidently designed to promote the public health,” etc.—the Colorado Court was careful to point out that even with such a statute it is only valid if there is no “palpable invasion of constitutional rights.”  See 53 Colo. at 83.  Therefore, there must be a mutual accommodation of the power of the legislature with constitutional rights even where the statute might serve a bona fide public purpose.  It is true, of course, that virtually no rights are “absolute” in the sense that they are not subject to some limitation in order to accommodate still other rights and the power of government.  But neither is the police power “absolute.”  It, too, remains subject to this need for mutual accommodation.

             Although this appears to involve a “limitation” upon the police power, it is not constitutionally conceived as a limitation that will in any way diminish the service that the police power gives in the long run to the public welfare.  The restraints imposed upon the police power by substantive due process are placed there precisely because it is felt, wisely, that a statute that pursues certain public ends but that loses sight of other liberties to which it may do harm is not, over the “long haul,” a sound public welfare measure.

            The relation of law, morals and liberty protected by our constitutions is not subject to endless stretching to meet even the most worthy ends of those who fail to recognize that a large area of liberty can only be retained if men are left free to choose between wise and unwise, sometimes between good and evil, exercises of judgment.  In a concurring opinion in City and County of Denver v. Denver Buick, Inc., Mr. Justice Frantz of this Court emphasized that “All too frequently acceptance of legislation is urged because it represents progress, and because the flexibility of both Constitutions allegedly has come to mean documents of boundless accommodation, Protean in their adjustment.  Beguiling indeed are these notions, and hence their advancement as arguments for a proposition should be scrutinized and analyzed with care.”  347 P.2d at 931. 

            As we have seen, the issue of “reasonableness” which due process raises as to the Fair Housing Act’s assertion of the police power is to be determined with an eye toward the need for mutual accommodation of interests.  This Court stated in the Denver Buick case that “Any legislative action which takes away any of the essential attributes of property, or imposes unreasonable restrictions thereon, violates the due process clause of the Constitution of the United States and the State of Colorado.”  347 P.2d at 924.  We have before us in the present instance just such an “essential attribute of property,” the right freely to dispose of it.  This attribute is one that is so integrally related to the freedom of association as to be inseparable from it.  The Fair Housing Act is directed primarily against the evils attendant upon the allowance of choice in the choosing of neighbors and associates.  It is difficult to see how the language of the Denver Buick decision could be reconciled with the Act’s curtailment of these very important liberties.

            As desirable as an immediate solution to the inhumanities caused by racial discrimination may be, we are compelled to agree with the conclusions of Mr. Charles Witherwax expressed in his article on “Anti-Discrimination Legislation” appearing in 23 Albany L. Rev. 75 (1959).  The article states:

                        “Now it seems logical that in a conflict of rights, such as we have here, there must necessarily be a line, beyond which we cannot infringe upon one’s basic right in favor of another.  For if we allow legislation favoring the one to proceed unchecked, even on a ‘step by step’ basis, the other will eventually be abridged to the point where it will be a right in name only and, as a practical matter, will have little or no value whatsoever.”

            That there must be a “line” beyond which the police power cannot go, and that such an Act as the one now before this Court passes over that line, cannot seriously be doubted.  The law review article just quoted states that “In this situation it appears that there is an attempt to make the end,” which the author has already recognized as a worthy one, “justify the means.”  It cautions that “When we must sacrifice one of our constitutional rights to gain the desired end, the price is too high to make the means even justifiable, much less reasonable.”  23 Albany L. Rev. at 90.

            The line must be drawn because essential human rights are involved.  It would be intolerable to hear, in regard to the present case, that the issue is one of “human rights” as against “property rights.”  The Act seeks to further the human goal of securing for racial and other minorities a life free from the restrictive consequences of narrow, morally erroneous judgment exercised by other men as a part of their freedom.  Truly, then, the Act seeks to promote a “human right.”  But we have fallen into one of the gravest of errors if we think that the “property right” protected by due process is not also very much of a “human right.”  This Court must be especially careful to avoid this error because of the almost unquestioned prevalence today of the anesthetic, insensible concept that “civil liberties” are one thing and “property rights” another, the property right being of an inferior and less necessary nature.

            One of the finest essays ever written on this point is William James’ “On a Certain Blindness in Human Beings.”  In it, he describes the feelings he had one day while riding a carriage across desolate wasteland.  The trees of the forest had been reduced to mere stumps, which were left protruding from the ground.  In between the stumps, stalks of corn were growing.  He remarked to himself upon the hideousness of the countryside.

            James stopped at a ramshackle cabin, however, where he met the mountaineer and his wife and small children.  It was here that he came across a new insight which formed the basis for his essay.  In talking with the farmer, he was told that “We would not be happy if we were not putting one of these coves under cultivation.”  It dawned on James that he had previously overlooked the real meaning of the scene that had passed before him while he was in the carriage.  What had seemed ugly and unsatisfactory to him was the source of a hidden joy to others.

            The cultivation of the mountain coves was “economic,” and was an exercise of the cabin-owner’s property right.  But in this essay James makes us sensitive to the underlying human aspect involved in this activity.  Those who argue that “property rights” are separable from “human rights”  have remained subject to the “blindness” upon which James commented.  It would do them well to remember the inscription on the Norlin Library at the University of Colorado that “He who knows only his own generation remains always a child,” and to read this essay by the now-dead William James in order to kindle in themselves a fuller appreciation of their own present-day circumstances.  Just as it has been true in the past, it remains true today, that property rights are indeed human rights.

            We respectfully urge this Court to recognize the unconstitutionality of the Colorado Fair Housing Act as a deprivation of an essential attribute of property ownership without due process of law. 

            C.  The Act Infringes the Freedom of Contract of the Home Owner, Contrary to Due Process of Law. 

            The right freely to alienate one’s own property is a property right.  The deprivation of this right by the Act has been fully discussed above.  This property right, attendant upon ownership, is also, however, one of the ways in which a person’s “freedom to contract” may be exercised.  The freedom to contract according to one’s choice may relate to the performance of services, the paying of money, the marriage of a spouse, the transfer of real or personal property, or to other like situations involving an exchange between persons.  Therefore, because of the more all-inclusive nature of the “freedom to contract,” the two concepts are not identical.  But the principles that we have applied above would apply with equal force for the protection of the other.

            While wishing to emphasize the infringement that the Colorado Fair Housing Act makes upon the “freedom of contract” as a separate, distinguishable ground for declaring it unconstitutional, we will not repeat all that we have said above.  We will merely refer the Court to the following authorities, which illustrate the legal existence and importance of this freedom.

            A strong statement of the “freedom of contract” is to be found in Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co., 227 Fed. 46 (2d Circ. 1915).  In an action under the Clayton Act, the court said:

                        “We had supposed that it was elementary law that a trader could buy from whom he pleased and sell to whom he pleased, and that his selection of seller and buyer was wholly his own concern.  ‘It is a part of a man’s civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice.’”  227 Fed. at 48, 49.

            The principles applied by the court to the Anti-Trust case then before it would apply equally to an Anti-Discrimination case.  What is important to note here is that the court gave recognition to a vital human interest which consisted in the freedom to contract.  Necessarily, this freedom, as all others, must be weighed in all circumstances in light of the need for mutual accommodation of the competing interests that seek to exist under the Constitution.  The Cream of Wheat case emphatically states the legal recognition of this freedom, and the fact that that freedom is now to be considered in connection with a different piece of legislation does not detract from the existence of that freedom as something to which the courts must give full legal protection.

            The freedom of contract has long been recognized in Colorado law.  In 1895, two cases gave expression to it.  It was said in In re House Bill No. 203, 21 Colo. 27 (1895) that:

                        “Insofar as the bill attempts to abridge the right of contract between parties in regard to matters personal to themselves… it is clearly an infringement of these constitutional guarantees.”  21 Colo. at 28.

            During the same year, in the case of In re Eight-Hour Bill, 21 Colo. 29 (1895), the Court said:

`                       “The bill submitted also violates the right of parties to make their own contracts,—a right guaranteed by our Bill of Rights and protected by the Fourteenth Amendment to the Constitution of the United States.” 21 Colo. at 32.

            In 1907, in Burcher v. People, 41 Colo. 495, the Court stated:

                        “It must be borne in mind that under our Constitution the right of contracting for one’s labor is reserved and guaranteed to every citizen.  It is subject to no restraint except where the public safety, health, peace, morals and general welfare demands it, and then only where the legislative department of the state government, in the exercise of its police power, selects a proper subject for its exercise and prescribes reasonable and appropriate regulations.”  41 Colo. at 503.

            The law as to freedom of contract remains an important part of our constitutional law.  In the 1956 case of Olin Mathieson Corporation v. Francis, 134 Colo. 160, 301 P.2d 139 (1956), the Colorado Court stated, while declaring the Colorado Fair Trade Act unconstitutional, that “the right to contract is… protected by the due-process clause of the Constitution and cannot be abridged by legislative enactment.”  Although there are those who, in the light of events during recent decades, would argue that the “freedom of contract” doctrine is no longer virile, it is apparent that such is not the case.

            16A C.J.S., page 607, states that:

                        “The right to make legal contracts of all kinds, without fraud or deception, is not only a part of the civil liberty possessed by every individual who is sui juris, but is both a liberty and a property right within the protection of the guarantees against the taking of liberty or property without due process of law.”  (Citing numerous authorities)

            The “freedom of contract” is an essential part of that web of inseparable liberties that cannot be made subject to exhaustive coercive regulation without destroying free choice itself.  Again, a line must be drawn as to the police power, and the role of persuasion and moral contract appreciated as the primary regulators of this broad area of individual judgment. 

            D.  The Act Unconstitutionally Takes Private Property for Private Use; or, in the Alternative, the Act Unconstitutionally Takes Private Property for Public Use Without Just Compensation. 

            Two Colorado constitutional provisions pertain to the taking of private property.  One of these involves the taking a private property for private use.  It states:

                        Article II, Section 14: “Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes or ditches on or across the lands of another, for agricultural, mining, milling, domestic or sanitary purposes.”

            The other pertinent constitutional provision is Article II, Section 15, which reads: “Private property shall not be taken or damaged, for public or private use, without just compensation.”

            If the Fair Housing Act provides for a “taking” of private property, it seems unnecessary to determine whether the taking is for a public or for a private use, since the Act makes no provision for “just compensation” (or for compensation of any kind) in either case, and the failure to grant such compensation would constitute a violation of the above-quoted Section 15 of our state Bill of Rights.  Therefore, in this connection the question resolves itself down to one of whether the Act involves a taking.  It is does, it is unconstitutional.

            We refer once again to the decision of this Court in City and County of Denver v. Denver Buick, Inc., 347 P.2d 919 (1960).  The Court quoted with approval from Mr. Justice Holmes:

                         “The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking… We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”  347 P.2d at 927.  (Emphasis added)

            From all that has been said in earlier discussions in this brief, it is apparent that the Act goes “too far” in its regulation of private property.  “It will,” therefore, “be recognized as a taking.”  If the state were to undertake to purchase homes and make them available to members of minority races, there may be other constitutional objections of a serious nature that would arise, but there would be no unconstitutional taking.  Any attempt to “short cut” a proper procedure is an attempt to gain a desired goal at the expense of the property rights of private citizens.

            The language in Corrigan v. Buckley, 55 App.D.C. 30, 299 Fed. 899 (Appeal dismissed 271 U.S. 323) indicates that the court considered that to compel the sale or conveyance to a Negro of particular private property would constitute a taking of private property.  The court stated:

                         “The Constitutional right of a Negro to acquire, own, and occupy property does not carry with it the Constitutional right to compel sale and conveyance to him of any particular private property.  The individual citizen, whether he be black or white, may refuse to sell or lease his property to any particular individual or class of individuals.  The state alone possesses the power to compel a sale or taking of private property, and that only for public use.”  (Emphasis added)  

            In Willison v. Cooke, 54 Colo. 320 (1913), the Colorado Court considered the constitutionality of an ordinance regulating the use of property.  The Court pointed out that the ordinance, although affecting one of the “essential elements of property,” left the owner’s title intact; he could not be ousted from possession, and he would still have the power to dispose of the property.  Despite all of this and even though there “would be no actual or physical invasion of his possession,” the Court considered that the ordinance involved a “taking.”  The Court referred specifically to the fact that the regulation was “without compensation or any provision therefor.”  It stated that it would “clearly deprive him of his property without compensation.”  The Court would not have referred to the need for compensation if it had not considered the regulation a “taking.”

            With respect to the compelling of the sale of particular private property, it is to be remembered that Section 6(12) of the Act grants power to the Anti-Discrimination Commission to order “affirmative action, including… the transfer, rental, or lease of housing.”  In the present case, the Anti-Discrimination Commission seeks to act under this section and to order the respondent J. L. Case to “afford to these complainants the opportunity of purchasing a comparable home.”  That such an order will, if a comparable home becomes available in the course of Mr. Case’s business, constitute a “taking” of the home at that time is clear from the above cases. 

            E.  The Act Unconstitutionally Confers Judicial Power on an Administrative Agency. 

            Article III of the Colorado Constitution pertains to the “Distribution of Powers.”  It states that “The powers of the government of this state are divided into three distinct departments,--the legislative, executive and judicial” and goes on to provide that:

                        “No person or collection of persons charged with the exercise of power properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

            Before giving specific attention to the important legal considerations, both as to precedent and as to concept, that must be taken into account in applying this Separation of Powers rule in the present instance, we feel that it is important to stress the vital role played by this concept in the protection of all of the liberties of all of the people.

            The fundamental purpose of the separation of powers is to prevent the assumption of unrestrained power by any individual or body of persons.  This purpose is often referred to by students of political theory as one of “checks and balances.”  Indeed, so often have we heard of the “checks and balances” built into our American national and state governments that we tend to lose sight of the reasons for them and to think of them mechanistically as being no more than an artful system of counterweights.  It is well to remember, however, that humanistic considerations of the most compelling sort lie behind these “checks and balances.”

            The great 19th century Russian author Fyodor Dostoevsky has pictured, in his essay “Notes From Underground,” the intimate human need for such restraints.  The essay describes the perverse character of a petty 19th century Russian official, who exercised a delighted capriciousness over the serfs who came before him.  It illustrates well the tyrant in his microcosm; not tyrannical in the flamboyant old-fashioned sense, but tyrannical in the insidious and petty modern sense.

            The essay contains a truth about “human nature” that cannot be disregarded even in our own country.  It is that no man, no matter how circumscribed his sphere may be, should contain within that sphere an unchecked power over those who must come before him.  If given such opportunity, human beings are likely to abuse it.  The relaxation of constitutional checks can result only in the creation of tyrants.  Some of them will be petty, others powerful, but all of them will be dangerous to the liberty of citizens of all races, creeds and national origin.

            It has been with a practical view to removing such concentrated power that Americans have adhered to the Separation of Powers.  Those who make the rules are separate from those who activate them, and those who decide their effect in specific cases are separate from both of the others.  None has complete power in his hands regarding any situation before him.

            We are not to be understood as saying that the Colorado Anti-Discrimination Commission is composed of officials similar to those in the essay referred to.  There is no question of the motives of its members or the soundness of their character.  They are as devoted to liberty, and perhaps more conscientiously so, than most among us.  But what—in light of the powers brought together in the Commission—can be said to stand between the open-hearted liberty Americans presently enjoy and the insufferable authoritarianism that can result from misconceived administrative power?  The answer must necessarily be that the only barrier is the devotion that we, and our courts, have to the formula stated in Article III of the Colorado Constitution, a formula that—though appearing mechanistic and conceptual—is founded in roots of a warmly human sort.

            Section 4 of the Fair Housing Act of 1959 lists the “powers and duties” of the Commission.  Administrative or executive power is vested in the Commission by the provisions for the adoption of regulations for the enforcement of the Act and for the formulation by the Commission of “plans for the elimination” of “unfair housing practices.”  It is charged with the responsibility of recommending policies to the Governor and to the General Assembly.  A review of the Act in its entirety confirms that the Commission is intended to be the activating force behind the Act, the executor of whatever administrative or executive tasks the implementation of the Act may entail.  Clearly, therefore, this is an administrative agency.

            The Commission is, however, further vested with power.  It has extensive judicial powers.  By Section 4(d) of the Act, the Commission is to “receive, investigate and pass upon complaints alleging an unfair housing practice.”  Section 4(f) grants powers to conduct hearings.  Section 6 deals at considerable length with the mechanics of this adjudication, and begins with the filing of a complaint, followed by a “persuasive” conference.  If the initial “conciliatory” efforts fail, the agency proceeds with the adjudication of the case, in which a hearing is held at which transcribed testimony is taken.  The upshot, as expressed by Section 6(12), is that:

                        “If, upon all of the evidence at the hearing, the Commission shall find that the respondent has engaged in or is engaging in an unfair housing practice as defined in this Act, the Commission shall state its finding of fact and shall issue and cause to be served upon such respondent an order requiring such respondent to cease and desist from such unfair housing practice and to take such affirmative action, including (but not limited to) the transfer, rental, or lease of housing; the making of reports as to the manner of compliance and such other action as in the judgment of the Commission will effectuate the purposes of this Act.”

            Section 7 provides for judicial review and for court enforcement of the Commission’s order, if any.  “The findings of the Commission as to the facts shall be conclusive if supported by substantial evidence.”  Section 7(6). 

            The most important thing to notice about the Act in regard to the Constitutional objection presently being discussed is that this hearing upon the complaint, and eventual issuance of an order, is not merely an incident to, or supplementary of, the other, administrative powers of the Commission.  It may not reasonably be argued that these adjudications are the adjunct of the administrative functions.  Rather, the holding of hearings as to individual cases and issuance of orders concerning them is a separate function altogether, perhaps the principal function of the Commission.  These adjudications are not chiefly an “information gaining” device to provide the basis for policy recommendations to the Governor.  They are present in the Act in their own right to serve their own purposes, which is the provision of relief in specific cases.

            This adjudication, then, is not a “quasi-judicial” function vested in the Commission.  It is a judicial function.  To contend otherwise is to attempt to create an aura of obscurity around the distinction between “judicial” and “quasi-judicial,” an obscurity that can only serve the purposes of constitutional usurpation.

            What is the distinction between “judicial” and “quasi-judicial”?  This Court has on several occasions given voice to the customary distinction between the two, in its opinion upholding the constitutionality of the statute creating the Public Utilities Commission.  In Public Utility Commission v. Manley, 99 Colo. 153 (1936), the Court emphasized that the holding of hearings by the Public Utilities Commission to determine certain facts that must be known for the carrying out of executive duties “is not the exercise of judicial power by a commission in the sense that courts administer judicial remedies, but is incidental to the exercise of delegated administrative powers.  The exercise of judgment and discretion as an incident to such powers is not the exercise of judicial power within the meaning of the Constitution.  The authority delegated to the Commission relates to the administration of the law and not to be exercise of judicial remedies.”  99 Colo. at 164.  (Emphasis added)

            The test had previously been stated in People v. Swena, 88 Colo. 337 (1931), another Public Utilities Commission case.  Pointing out that the Public Utilities Commission is “charged with the performance of certain executive and administrative duties,” the Court observed that “in the performance thereof, and as incidental thereto, it hears evidence, ascertains facts, and exercises judgment and discretion, but this is the exercise of a merely quasi-judicial function….”  88 Colo. at 340.  (Emphasis added)  The same rationale was expressed in Colorado and Southern Railway Co. v. The State Railroad Commission, 54 Colo. 64 (1912), where administrative fact-finding was considered necessary for the purpose of “afford(ing) a means to aid in carrying the law into effect.”  Where such was its purpose, the fact-finding power was considered “quasi-judicial.”

            Although in a number of cases this Court has considered certain acts of executive officers non-judicial as related to their executive functions, it has not hesitated to assert Article III of the State Constitution to void legislation that it has deemed in violation of the Separation of Powers.  [The brief then footnotes support for the beginning clause of the preceding sentence: Tinsley v. Crespin, 137 Colo. 302 (1958); Sweeney Co. v. Poston, 110 Colo. 139 (1942); People v. District Court, 106 Colo. 89 (1940); Goldsmith v. McAnally, 92 Colo. 384 (1933); Chenoweth v. State Board, 57 Colo. 74; and Colorado and Southern Railway v. State Railroad Commission, 54 Colo. 64 (1912).]  In Denver v. Lynch, 92 Colo. 102 (1932), the Old Age Pension Act was declared unconstitutional in that it conferred upon a board of county commissioners power to join in the fixing of the amount to be paid under the Act.  People v. Swena, supra, declared a provision of the statute creating the Public Utilities Commission void insofar as it conferred upon the Commission the power to punish for contempt.  In further cases involving the Public Utilities Commission, which it upheld, the Court further stated its rationale as to the difference between judicial and quasi-judicial functions.  People v. Colorado Co., 65 Colo. 472 (1918); Pirie v. Utilities Commission, 72 Colo. 65 (1922).

            The rationale that the hearing and decision of individual cases is judicial unless merely caught up as a necessary part of the process of performing executive functions, such as regulatory and active administrative tasks, has found frequent and lucid expression outside of Colorado.  It is stated in 22 Am.Jur., pages 909, 910, that:

                        “If the officer is clothed with the power of adjudicating on, and protecting, the rights and interests of contesting parties, and the adjudication involves the construction and application of the law and affects the rights and interests of the parties, although not finally determining the rights, it is a judicial proceeding or the exercise of a judicial function.”

            Identical language is found in People v. Chase, 165 Ill. 527, 46 N.E. 454 (1896).  Probably one of the most expressive opinions by any court discussing the distinction between judicial and quasi-judicial powers may be found in In Re Opinion of the Justices, 87 N.H. 492, 179 Atl. 344 (1935).  Declaring unconstitutional a proposed statute pertaining to the withdrawal of drivers’ licenses from uninsured motorists, the New Hampshire court stated:

                        “It is consistent with the Constitution that executive officers should be vested with some judicial power.  It is not only convenient but necessary that it be given, in order that government may function.  But it must be power needed to enable them to perform their executive duties.  It may not be given them merely because it is thought that efficiency and convenience in the administration of a statute will be promoted thereby….

                        “As a rule which meets most situations, when an executive board has regulatory functions, it may hear and determine controversies which are incidental thereto, but if the duty is primarily to decide questions of legal right between private parties, the function belongs to the judiciary….

                        An administrative board may proclaim only administrative judgments.  If they may be judicially reviewed, the right to have them reviewed does not transform them into judicial judgment, although the review and action thereon is judicial.”  179 Atl. at 345, 346.  (Emphasis added)

            Other cases explicitly adopting the rationale expressed by the Colorado and New Hampshire courts are Pitt v. Scrugham, 44 Nev. 418, 195 Pac. 1101 (1921); Ward Baking Co. v. Western Union Telegraph Company, 205 App. Div. 723, 200 N.Y.Supp. 865 (1923); and Klein v. Barry, 182 Wisc. 255, 196 N.W. 457 (1923).  The doctrine of Separation of Powers has been applied in numerous instances to declare offending legislation invalid: State v. Kievman, 116 Conn. 458, 165 Atl. 601 (1933); Johnson v. Diefendorf, 56 Ida. 620, 57 P.2d 1068 (1936); In re Edwards, 45 Ida. 676, 266 Pac. 665 (1928); People v. Chase, 165 Ill. 527, 46 N.E. 454 (1896); Pitt v. Scrugham, 44 Nev. 418, 195 Pac. 1101 (1921); In re Gibson, 35 N. Mex. 550, 4 P.2d 643 (1931); Ward Baking Co. v. Western Union Telegraph Company, 205 App. Div. 723, 200 N.Y.Supp. 865 (1923); Fairbanks v. Hidalgo County, 261 S.W. 542 (Tex. Civ. App. 1924); Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921); Klein v. Barry, 182 Wis. 255, 196 N.W. 457 (1923).

                As we have already seen from the statement made by the New Hampshire court in In re Opinion of the Justices, supra, the right to have the judgments of administrative commissions judicially reviewed does not alter the character of the commission’s action.  Section 7 of the Act provides for judicial review of the final order to the Commission, although specifying that it is not to be a trial de novo, since “The findings of the Commission as to the facts shall be conclusive if supported by substantial evidence.”  This provision does not obviate the Separation of Powers question.  In its usual clipped style, Am. Jur. States: “The vesting of essentially judicial authority in an administrative board is not validated by providing for judicial review of its decisions.”  11 Am.Jur., page 910.  The Illinois Supreme Court, in People v. Chase, 165 Ill. 527, 46 N.E. 454, 458 (1896), expressed the rule as follows: “We do not understand that… under any definition of the term ‘judicial powers,’ it is necessary that the adjudication between the parties shall be conclusive of their rights put in issue; ….”  Such a view is in keeping with the overall purposes of the Separation of Powers theory.  The several powers are not to be vested in one set of hands, with all that that involves for authoritarian action, at any level.  We all know in practice that litigation is expensive, time-consuming and necessarily vexatious at its best.  Ordinary people are not litigious and will avoid a fight if they can.  If an administrative agency can exercise judicial power over them through a trial and to the point of entry of a final order, it will as a practical matter in most cases have held a sizeable lever to exercise its will, and the fact that the respondent can start a lawsuit to obtain judicial review doesn’t destroy the impact of this effective power or in any way purify the unconstitutional admixture of power that the Commission has to that point been enabled to wield.

            The Fair Housing Act grants the Commission the power to hold and conduct hearings, cloaked with all the formality and much of the procedure of a court hearing and pursuant thereto the Commission can issue orders that are in effect punitive in nature, and under Section 6(12) may even order the transfer of ownership of private property.  We respectfully submit that this and the other judicial functions, not being merely supplementary to executive functions, are clearly judicial in nature.  They are not merely “quasi-judicial.”

            In urging this Court to affirm once again the Separation of Powers as found in Article III, we are in fact urging this Court to assert that “alertness” and “resolution” in preserving the integrity of our free form of government to which the Washington Supreme Court referred in the following statement:

                        “The legislative, executive, and judicial functions have been clearly separated, and, not withstanding the opinions of a certain class of our society to the contrary, the courts have ever been alert and resolute to keep these functions properly separated.  To this is assuredly due the steady equilibrium of our triune governmental system.”  In re Bruen, 102 Wash. 472, 172 Pac. 1152, 1154 (1918). 

            F.  The Act Contains an Unconstitutional Delegation of Legislative Power. 

            As a concomitant of the finding of unconstitutional “vagueness,” the trial court has found the Act to contain an invalid delegation of legislative power to an executive commission.  In its wide-open Section 6(12), the Act simply does not set out sufficient standards to guide the Commission.  It allows the Commission to take “such other action as in the judgment of the Commission will effectuate the purposes of this Act.” (Emphasis added)   In effect, the Act is saying to the Commission: “Use your imagination, and anything you do will be all right so long as in some way it helps accomplish the ends of the statute.”  While the ends aimed at may be stated, the means that the Commission is to follow are left without any statement or standard whatsoever.  When we stop to consider that possible means to the attaining of an end may be indeterminate in number, depending only on the inventiveness of the actor, we come to appreciate that it is not enough to state the end aimed at and to imagine that one is creating a “standard” by saying merely that the means are to be such as will “effectuate” these ends.  And it makes no difference that the courts will look over the Commission’s shoulder to check up on whether the “means” actually do “effectuate” the purposes of the Act, since this merely moves the situs of the problem slightly and means that the General Assembly has delegated its law-making function to a joint effort by the agency and the courts, rather than merely delegating its functions to the agency alone.  In either case, it remains true that no real standard has been set by the legislature, whose constitutional task it is to establish the major premises of the law sufficiently so that the executive branch may activate them and the judicial branch may apply them.

            Many of the same considerations apply where a delegation of legislative power is concerned as applied earlier in this brief to the Act’s unconstitutional conferring of judicial power on an administrative agency.  Both are a violation of the Separation of Powers; both violate Article III of the Colorado Constitution.

            As recently as 1959, the Colorado Court has upheld the integrity of the separate branches of the state government.  In Casey v. People, 139 Colo. 89 (1959), the Court quoted from 16 C.J.S. at page 580, where it is said: “The legislature may not vest executive officers or bodies with uncontrolled discretion in making rules and regulations and must establish sufficient standards for their guidance.”

            Earlier, the Colorado Court had pointed out, in Spears Hospital v. State Board, 122 Colo. 147, 151 (1950), that “It is fundamental that authority to regulate does not include the authority to legislate….”  This echoed a still earlier statement by the Court that “The legislature cannot delegate its powers.”  Sapero v. State Board, 90 Colo. 568, 572 (1932).

            We have pointed before in this brief to the incongruous nature of an Act that, in the name of greater “democracy,” violates so many of the most rudimentary principles of a free society.  Here, we see that the Constitution has established a General Assembly composed of the elected representatives of the people.  Under the Colorado Constitution, it is for these elected representatives to enact the laws that are to govern the people.  This is as close as we can, in most matters, come to “democracy” in the enactment of laws.  But, contrary to this, the Act seeks to move responsibility for law-making one step further back from the people and to vest legislative power in appointed administrative officers, who may or may not act responsively to the people’s wishes.  It is clear that this may not be done consistently with the Constitution.           

            G.  The Act Violates Due Process of Law in that it Destroys the Value of an Existing Investment of Time or Money Without Being Sufficiently Definite and Certain as to Apprise the Persons to Whom it Applies of its Meaning in Advance of Their Action. 

            A statute must be sufficiently definite as to give adequate notice of its meaning where the effect of the statute is to destroy the value of an existing investment of time or money.  The Fair Housing Act is only in some ways prospective in its application after the hearing before the Anti-Discrimination Commission.  It has been well settled in Flank Company v. Tennessee Company, 141 Colo. 554 (1960) that “Where the problem is that of proscribing future conduct the notice to the citizen… deserves less emphasis,” as in a case where a plaintiff seeks an injunction.  But the Act is no by means solely of this prospective nature.  It is true that the upshot of the Commission’s hearing is, according to Section 6(12), to be the issuance of a “cease and desist” order and an order requiring the respondent to take other “affirmative action,” and on the face of it this language appears prospective, but this other “affirmative” action may very easily require injury to past expenditures of time and money.  It is not as though the “injunction” is purely as to what not to do in future undertakings; it may be mandatory as well.  A person who may have bought a home years earlier at a substantial price and who may at some expense have since entered into a brokerage arrangement for its sale may after a hearing before the Anti-Discrimination Commission be ordered to take some affirmative action in connection with it that will go far toward abrogating his pre-existing property rights in it, for which he has previously expended money and time.  He may, for example, be ordered to sell it to the complainant Negro.  Such an order is only superficially prospective, since it affects intimately the interests he has previously acquired or the contractual ties he has entered upon.

            In its written opinion, the trial court has stated that “clearly and without question” sub-section 6(12) is “vague” and “indefinite,” since it provides that the Commission may take “such other action as in the judgment of the commission will effectuate the purposes of this Act.”  The trial judge points to the fact that there is no evidence in the case to indicate whether or not the respondent J. L. Case or his firm owned any other houses comparable to the one in question.  Therefore, in order to comply with the order of the Commission requiring him to make available to the Complainant the opportunity to purchase any comparable home from the homes listed with him, the respondent may have to act contrary to certain listing agreements that he may or may not have entered into with the owners of the homes.  From the evidence in the present case, there is no showing that the order of the Commission will operate only prospectively and will not adversely affect matters that arose prior to the Commission’s order and that involved the expenditure of time and money by the respondent J. L. Case.

            The conclusion as to vagueness reached by the trial court seems well supported by reason.  The statute is vague in a number of ways.  A person buying a home or entering into a real estate listing agreement cannot determine in advance to what Commission action he may or may not be subjected.  He knows that he may be ordered, unconstitutionally, to transfer his property to a complainant.  He also knows that the Commission may take with regard to him or his property “such other action” as the Commission considers will effectuate the purposes of the Act.  What this “other action” may be, he can only guess.  It may be minor in nature, or it may involve a great deal.  Between him and the meaning of the statute lies the ingenuity of the Commission, unfettered by any standard except the “purposes” of the Act.  Since Section 6(12) is indeed the “key” to the Act, the consequence of this need of a person to guess what the Commission will or will not do before the person enters into transactions involving the expenditure of time and of money is that the Act is “vague” in what is perhaps its most important provision.

            Various other questions pertaining to vagueness also arise.  Can “vacant land” be properly defined as “housing”?  What if the land is zoned for commercial or business use?  How does the Act apply to a basement or garage apartment or a separate unit with an “outside” entrance?  The Act applies to a rooming house with more than four boarders, but does not apply with four or less.

            The Colorado Supreme Court discussed at length the “vagueness” issue in Flank Company v. Tennessee Company, supra.  It stated that the problem has two aspects.  The first “involves the necessity of providing conduct guides to the public, including the lawyer counseling his client.”  The second “is the necessity for furnishing a sufficiently definite guide to enable the lawyer to contest the applicability of the rule to his client.”  As to the “conduct guides” aspect, the Court seemed to make the real test one of whether the defendant would be “prejudiced by the failure of the statute to provide precise and adequate warning beforehand.”  The Court made it clear that the statute will be viewed from the standpoint not of the prudent man but from the standpoint of the judge hearing the case in certain instances, but these instances only involve a situation in which the questioned provision is altogether prospective in nature, on the theory that in such a case the judge’s order will itself provide a sufficient guide for future conduct.  Since an order of the Commission may directly disturb past transactions, no such situation exists in the present instance.

            Another 1960 case, Memorial Trusts, Inc. v. Berry, 356 P.2d 884 (1960), quotes with favor from 62 Harv. L. Rev. 77, 78, where it is said:

                        “Even a statute subjecting violators merely to injunction or to deprivation of a prospective gain should give notice where the secondary effect of such a sanction is to destroy the value of an existing investment of time or money.”

            Where the “vagueness” test applies, as it does here, the court must determine whether the statute is “of such a character that ‘men of common intelligence must necessarily guess at its meaning.’” 141 Colo. at 562.   Surely “men of common intelligence” must guess at the meaning of Section 6(12).

            The rationale behind the rule that a “vague” statute is unconstitutional goes to the very heart of the Anglo-Saxon jurisprudential system.  For centuries, the “Rule of Law” has been a central principle of our legal system, and one of the mainstays of our liberty.  Harrington called for an “empire of law, and not of men,” and this cry was taken up by the philosophers and statesmen who molded our system.  The Rule of Law requires that laws be general and not special in scope; prospective rather than retrospective, except where no harm will be done by the law’s backward glance; known to the persons to whom they extend; judicially applied by impartial tribunals; as equally applicable to the governors as to the governed; and sufficiently definite and certain that persons need not guess as to their meaning and so that they may not be arbitrarily applied.  These principles forming the liberal “Rule of Law” are not merely for the convenience of an individual defendant; they are guarantees against a lawless system operating under a façade of law.  It is because of this that the “vagueness” objection is one of the more serious objections that can be raised against the constitutionality of a statute. 

III.  A Review of Other “Civil Rights” Cases and Legislation 

            Without  unduly extending the length of this brief, we cannot hope to present an exhaustive analysis of past “civil rights” cases and legislation.  It is desirable, however, to examine background law sufficiently to place the Colorado Fair Housing Act in a proper perspective.  It differs materially from other “civil rights” legislation, especially as to the extent to which it seeks to carry the police power of the state.  In this connection, it even differs materially from other “housing” acts in other states as have pertained only to “publicly assisted” housing.

            1.  The Colorado Act is not limited to “publicly assisted” housing.  There have as yet been no court tests elsewhere as to the validity of statutes attempting to regulate, in varying degrees, purely private housing, although such statutes have been enacted in Massachusetts (dealing with subdivisions), Connecticut (dealing with multiple dwelling units), Oregon and Pennsylvania.  Thusfar, courts have passed only on statutes limited in coverage to “publicly assisted” housing, and there has been a split of authority as to the validity of such statutes.  The most recent case has been O’Meara v. Washington State Board Against Discrimination, 365 P.2d 1 (Wash. 1961).  The Washington Act was found unconstitutional on the ground that the “publicly assisted” classification was unreasonable.  In a concurring opinion, two members of the majority declared that the Act violated due process, a state constitutional provision declaring that private property shall not be taken for private use, a state constitutional provision that the superior court shall have original jurisdiction in all cases, the separation of powers doctrine, and a state constitutional provision that no person shall be disturbed in his private affairs.  In a dissenting opinion, four judges constituting the minority considered the “publicly assisted” classification reasonable and would have declared the law extending to such housing to be otherwise constitutional.  Prior to the passage of the New York statutes, Dorsey v. Stuyvesant Town Corporation, 299 N.Y. 512, 87 N.E.2d 541 (1949) held that a purely private corporation could not be enjoined from refusing to furnish housing facilities to Negroes.  The same view was expressed in Globerman v. Grand Central Parkway Garden, Inc., 115 N.Y.Supp.2d 757 (1952) and in Novick v. Levitt & Son, 108 N.Y.Supp.2d 615 (1951).  In 1958, however, New York State Commission v. Pelham Hall Apartments, 170 N.Y.Supp.2d 750 (1958) held constitutional a statute pertaining to “publicly assisted” housing.  In New Jersey, the same result was reached in Levitt & Son v. Division Against Discrimination, 56 N.J.Superior 542, 153 A.2d 700 (1959).  The case does not discuss general questions of due process.

            In his recent dissenting opinion in Colorado Anti-Discrimination Commission v. Continental Air Lines, decided February 13, 1962, Mr. Justice Frantz of this Court cited the Pelham Apartments case, supra, in support of the correct statement that “Legislation directed against racial or religious discrimination is action ‘within the bounds of the police power.’”  Care should, of course, be taken to note that this statement is correct in the context of the Pelham case.  If would be incorrect, however, if applied to anything and everything.  As we have seen, the Pelham case dealt only with “publicly assisted” housing, and the police power issues as related to the case now before this Court have not previously been decided by any court.

            With respect to such statutes dealing with “publicly assisted” housing, reference is made to the following statements by Charles H. Witherwax in 23 Albany L. Rev. 75:

                        “No matter what one’s opinion as to the wisdom of the present law pertaining to publicly assisted housing may be, it is still possible to find a reasonable justification for it.  It can be said that one who accepts government aid, in whatever form it may be, for his private property, should, in some measure at least, be subject to the wishes of the government with respect to such property.   It is virtually impossible, however, to see any rational legal basis for placing such restrictions on private real property which is unassisted by the state.”

            2.  The Colorado Act deals with private homes, not places of public accommodation such as inns, barbershops, and the like.  Because of this difference, such statutes are necessarily distinguishable from the Colorado Act.  For many years, statutes prohibiting discrimination in such places of public accommodation have been sustained.  See Crosswaith v. Bergin, 95 Colo. 241 (1934); Darius v. Apostolos, 68 Colo. 323 (1920); Messenger v. State, 25 Neb. 674, 41 N.W. 638 (1889); District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007 (1953).  In cases dealing with the subject, the courts have repeatedly recognized that the validity of the exercise of the police power rests strongly upon the fact that the activities regulated are of a “public” nature.  In the Messenger case, supra, the court commented: “A barber, by opening a shop, and putting out his sign, thereby invites every orderly and well-behaved person who may desire his services to enter his shop during business hours.”  It was careful to point out that the state had power to prohibit discrimination “in places of public resort.” 41 N.W. at 639. 

            3.  Fair Employment Practices Acts are somewhat analogous to statutes regulating places of public accommodation, although it might well be argued that the nature of the business ought to be considered.  Although there are a number of such employment statutes, it was reported in 12 Rutgers L. Rev. 557, 559 (1958) that “As yet… there has not been any state or United States Supreme Court determination of the constitutionality of Fair Employment Laws.”  We have been unable to find any cases dealing with their constitutionality either before or after 1958.  No determination of the Colorado statute’s general constitutionality was made in Colorado Anti-Discrimination Commission v. Continental Air Lines, 355 P.2d 83 (Colo. 1960), or in the second case by the same name decided by this Court on February 13, 1962.  The first Continental Air Lines case turned entirely on procedural points unrelated to constitutional issues.  The second case was decided by the majority of this Court on the federal question of whether an interstate carrier could be regulated in its hiring by a state under the commerce clause of the Federal Constitution.  The Court found the Colorado Anti-Discrimination Act of 1957 invalid as applied to Continental Air Lines, an interstate carrier, because of the legal need for uniform regulation.  Neither this Court nor the District Court considered the overall validity of Fair Employment Practices Acts.

            It is possible that acts regulating business employment practices will be upheld upon a direct challenge, although judgment on this point ought perhaps to be suspended until a case arises.  Such acts are closely related to “public accommodation” statutes, which—as we shall see—have been upheld.  Mr. Justice Frantz of this Court was correct in pointing out in his dissenting opinion in the second Continental Air Lines case that federal cases appear to have recognized the validity of Fair Employment Practices Acts under the state police power.  For example, Railway Mail Association v. Corsi, 326 U.S. 88, 65 S.Ct. 1483 (1945), upheld a state statute prohibiting racial discrimination in labor union membership.  It is to be noted, however, that, as quoted by Mr. Justice Frantz, the United States Supreme Court referred specifically to regulation of “an organization, functioning under the protection of the state, which holds itself out to represent the general business needs of employees.” (Emphasis added)  A private home-owner selling his home is not “functioning under the protection of the state” in the same sense and is not “holding himself out” in a commercial relation.  The home-owner is not operating in a “quasi-public” area, while a labor organization is.

            4.  In the absence of statute, private persons have repeatedly been upheld in their right to exercise their own opinion according to their own caprices, not being subject to injunction or other legal action because of their discrimination.  In Corrigan v. Buckley, 299 Fed. 899 (Appeal dismissed, 271 U.S. 323), the court stated:  “The Constitutional right of a Negro to acquire, own, and occupy property does not carry with it the Constitutional right to compel sale and conveyance to him of any particular private property.  The individual citizen, whether he be black or white, may refuse to sell or lease his property to any particular individual or class of individuals.”  See also Globerman v. Grand Central Parkway Garden, Inc., supra; Novick v. Levitt & Son, 108 N.Y.Supp.2d 615 (1951); and Dorsey v. Stuyvesant Town Corporation, supra.

            5.  State action, however, of a discriminatory nature is proscribed by the Fourteenth Amendment.  Cases of various types have arisen under this principle, including the “restrictive covenant” cases.  In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836 (1948), the United States Supreme Court held that a state court may not enforce private restrictive covenants, since the action by the court would constitute an action by the state.  This opinion was followed by the Colorado Court in Capitol Association v. Smith, 136 Colo. 265 (1957).  These cases do not support the Fair Housing Act.  They say the state may not by its acts promote discrimination.  This does not authorize the state to act affirmatively in derogation of the Fourteenth Amendment as our legislature has attempted to do here.

            These “state action” cases include the various “public school” cases.  The leading case as to public school segregation is Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686 (1954), in which it was held that the older doctrine of “separate but equal” facilities could have no place as to public schools.  State discrimination in the operation of its public housing has been held to violate the Fourteenth Amendment.  See annotation at 14 A.L.R.2d, page 158.

            6.  Certain “civil rights” cases arise under federal “civil rights” statutes.  In 1883, the Federal Civil Right Act was declared unconstitutional in The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18 (1883).  The federal act prohibited discrimination in places of public accommodation.  The United States Supreme Court held that the Congress had no power to legislate upon subjects that were within the domain of state legislation.  However, where interstate commerce is involved the federal government may legislate.  Baldwin v. Morgan, 251 Fed.2d 780 (5th Circ. 1958).

             We have enumerated these various areas in order that the relative place of the present litigation might better be understood.  In none of the prior history of this aspect of the law has there been any judicial discussion of anything analogous in principle to the Colorado Act, which seeks to regulate purely private conduct in derogation of property rights and of the general liberty of the individual citizen. 

IV.  Review of Points Raised in Anti-Defamation League Brief 

            The Anti-Defamation League and the American Jewish Committee have submitted to the Court a brief supporting the Act.  Although we think the points raised there have been adequately covered by the preceding discussion in this brief, many of the arguments raised by the A.D.L. brief are of a strikingly specious nature, so much so that it seems advisable to consider them point-by-point here.

            We have already considered the scope of this Court’s review in Part I of this brief.  The A.D.L. brief seems to argue, though it never does so explicitly, that the scope of the court’s review is limited.  It would appear, however, that since this is a review of an order of dismissal, any ground, whether relied on by the trial court or not, may be made the basis for sustaining the trial court’s ruling.

            On pages 8 through 16 of the A.D.L. brief, it is argued that the “order of the Commission… was in all respects legal and proper.”  We submit that the entire argument begs the question, and seems to assume the Constitutionality of the Act under the sole authority of which the order could have been granted.  On page 11, for example, the brief comments: “To the extent that the seller of housing is prohibited by the Act from imposing racial or religious restrictions on prospective purchasers, he cannot insist that a real estate broker or agent carry out any such restriction.  Hence, no legal right of a seller would be violated if the broker or agent ignored such unlawful restrictions.” (Emphasis added)  This statement assumes the right of the Act to tell the seller to whom he may or may not refuse to sell, and only on this basis draws its conclusion.  As we have seen, however, this assumption is false.  The conclusion in the argument quoted likewise fails, because an order of the Commission telling a broker that he must sell a comparable home (which may belong to some third party who is not even a litigant in this lawsuit) to the complainant will certainly violate the constitutional rights of the owner, whoever that owner may be.

            On page 13 the Anti-Defamation League attempts to answer the District Court’s conclusion that the order of the Commission seeks to give itself “never ending jurisdiction” over the respondent by providing for periodic reports without any cut-off date.  The brief explains that “The Commission intended to retain jurisdiction over the respondents until either they fully complied with the order or the complainants removed themselves from the housing market.”  It is hard to understand how this in any way overcomes the conclusion as to “never ending jurisdiction.”  Rather, the jurisdiction may continue indefinitely, since there is no certainty that the complainants will ever “remove themselves from the housing market” or that it will ever be possible for the respondents fully to “comply with the order.”  The order, to be fully complied with, requires the listing of a comparable home with the respondents, and this may happen immediately or it may never happen.

            We believe the League brief has lent its own logic in support of our contention that the Act unconstitutionally confers judicial power on an administrative agency.  It states, on page 16, that “Section 6(12)… is the heart of the Act.  Without it, the prohibition against discrimination and housing contained in Section 5 would be merely a pious declaration.  Although the Commission would investigate charges of discrimination it would be powerless to invoke any sanction to compel those who violate the Act to abandon or modify their behavior.”  We thoroughly agree with this conclusion.  It shows, however, that the adjudicatory functions of the Commission are not purely supplementary to executive functions, and hence are not “quasi-judicial,” but are rather judicial.

            The argument as to “vagueness” contained on pages 17 through 22 of that brief relies strongly on the fallacious argument that the Fair Housing Act operates only prospectively and does not prejudice “existing investments of time or money.”  Where matters of property ownership are concerned, the “prospectiveness” of the Act’s operation is by no means certain.  It is far more likely that the Act will intimately affect property rights of long standing.

            Perhaps the most spurious argument in the entire A.D.L. brief appears in the argument beginning near the bottom of page 29.  This argument contains a serious and destructive misapplication of logic when it uses a quote to the effect that the “freedom of contract is a qualified… right” in an effort to support the incorrect statement that “the courts have made it clear that ‘freedom of contract’ is no restriction on (the police) power.”  As with Hamlet’s mother’s unseemly haste in posting to the incestuous sheets of the King’s bed, it seems this is an unseemly haste to get the “freedom of contract” out of our constitutions.  Of course the freedom of contract is not absolute.  Neither is the freedom of speech or most other liberties.  Probably only the mere right to hold opinions (but not to act upon them) is “absolute.”  But this does not mean that these rights are to be denied recognition.  The true rule is that they are to be accommodated in a workable system of liberty under law.  If this is so, the “freedom of contract” has not even a single foot in the grave, much less two.

            Another argument, appearing on page 33 of that brief, is similarly questionable.  At the end of the middle paragraph, the brief’s writer concludes that certain Supreme Court decisions implicitly uphold the power of a state legislature to enact laws against discrimination arising out of the “conduct of private individuals and corporations.”  At best, this is only half true.  This conclusion is based on “public accommodation” cases involving labor unions, restaurants, steam ships and amusement parks.  Contrary to that brief’s implicit contention, however, it seems clear that the non-public activities of private citizens cannot be thrown into hotchpot with such “public accommodation” undertakings.  They are highly distinguishable and ought not to be confused if liberty in purely private affairs is to receive the constitutional protection it so greatly requires.

            A subtly misleading argument appears in the discussion on pages 36 through 41 of the A.D.L. brief.  A misunderstanding of the cases cited there, however, could lead to a very important error in the decision of this case.  The brief distinguishes the O’Meara case in Washington from the present case on the basis that it involved the category of “publicly assisted” housing, which our Act does not, and because the court of that state rested its decision on the thought that such a classification was unreasonable.  Hence, the distinction between acts that regulate “publicly assisted” housing and the Colorado Act was pointed to in the A.D.L. brief when the distinction was necessary to distinguish a case contrary to the position urged by the brief’s writer.  Within the same pages, however, the brief discusses several cases that are gone into at some length to show that they uphold legislation prohibiting racial and religious discrimination in “housing.”  In this connection, the brief fails entirely to mention that the cited cases dealt with statutes regulating only the sale of “publicly assisted” housing.  The failure to point this out appears in connection with the “police power” issue.  The cases cited on pages 36 through 41 of the A.D.L. brief do not support the constitutionality of legislation regulating housing in general, even though this is the impression given by that brief.  They deal with legislation dissimilar to our own.  The Colorado Act seeks to go much further than the legislation considered in those cases. 


            We in America are absorbed in a life that is congenial, pleasant and free.  We live in an age of threatening atomic holocaust, but even this does not fundamentally shake our faith that the same humane civilization that is here today will continue to be here tomorrow.

            We must not permit ourselves to forget, however, that life can have its insanities.  Men are as often brutal as they are kind.  A free civilization may come under the spell of a demagogue and suffocate under the ensuing authoritarianism.  The Twentieth Century provides us with its own lessons in this regard.

            The only real means to avoid such insanities is to protect against them far in advance.  When they are upon us, it is often too late.  The means of protection lies in a legal, economic, social and moral order that so substantially preserves the freedom of the individual that there may be no growth of anything tending toward a cataclysmic abuse of power.

            Among the principal beneficiaries of a system of voluntarism are the so-called “minority groups.”  No one has more stake in the continued presence of individual rights than do the members of such minorities.  It is precisely these persons who suffer first, and suffer most, when private rights are disregarded and governmental authoritarianism is substituted in their place.  This is so because it is almost inevitable that, in the broad sense, it shall be the majority that will control the government.  When the benevolence under freedom is replaced by the hatred under authoritarianism, there is no guarantee that those whom the free government has sought to protect will not be those whom the no-longer-free government will seek to subject.

            As incredible as it may at first glance appear, Americans belonging to minority groups have a more enlightened interest in maintaining the general freedom than in seeking special protections against the evils necessarily attendant upon voluntary individual behavior, at least where these protections cannot be attained without eroding important private liberties.  It is more in their interest to strike down the Fair Housing Act than to let it stand.

            We do not wish to overstate the case.  The world will not end if the Act is upheld.  Nor is there any certainty that further freedoms will be washed away and that the ultimate result will be one of the periods of “insanity” to which we have referred and to which men are susceptible.

            All we can with real assurance say is that the erosion of the fundamental principles of a free society is a piecemeal process, and that the responsibility for the long-run historical process must necessarily be borne by those who permit any part of that process to take hold.  The separation of powers; the equal protection of the laws; the due process of law as to property rights and as to the freedom of contract and as to the need for definiteness in statutes; these are important principles, both in the theory and in the everyday life of a free people.  They deserve the protection that this Court may give them.


                                                 JOHN E. GORSUCH,                                                                                                   JOHN L. FERGUSON, 

                                                               Amici Curiae 

                                                  DWIGHT D. MURPHEY

                                                  222 Equitable Building

                                                  Denver 2, Colorado, 

                                                  Attorneys Representing Colorado Association

                                                           of Real Estate Boards