# O'Meara v. Washington State Board Against Discrimination > Washington Supreme Court · September 29, 1961 · 58 Wash. 2d 793 URL: https://www.frixlaw.com/law-library/cases/9794715 ## Case - **Full name:** John J. O’Meara Et Al., Respondents, v. the Washington State Board Against Discrimination, Appellant, Raymond D. Torbenson Et Al., Defendants, Robert L. Jones, Intervenor - **Court:** Washington Supreme Court - **Decided:** September 29, 1961 - **Citations:** 58 Wash. 2d 793; 365 P.2d 1; 1961 Wash. LEXIS 368 - **Precedential status:** Published - **Opinion:** Dissent by Rosellini - **Judges:** Mallery, Rosellini, Hill - **Cited by:** 15 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9794715 ## Opinion text Rosellini, J. (dissenting) — In approaching the question presented in this case, whether the 1957 amendment to RCW 49.60.030 is a valid exercise of the police power, the majority have not seen fit to set forth the rules which bind •the court in examining such a question. These rules, so often repeated and yet apparently not always understood, *807 were most recently set forth in Clark v. Dwyer, 56 Wn. (2d) 425, 353 P. (2d) 941 , and are in brief: The state constitution is not a grant, but a limitation on the law-making power, and the power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state and federal constitutions. Where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment, unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. Where possible, it will be presumed that the legislature has affirmatively determined any special facts requisite to the validity of the enactment, even though no legislative finding of fact appears in the statute. The court must always bear in mind that the legislature, and not the court, is the chosen representative of the people and when it passes a law, it is the voice of the people speaking. The police power extends not only to the preservation of the public health, safety, and morals, but also to the preservation and promotion of the public welfare. The police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution. I think the majority have conceded that there exists an evil with which the legislature is properly concerned and that the law in question was enacted to correct a portion of that evil. They have quoted from the opinion of the trial court a finding that the evil actually exists; so we are not limited to a presumption that the legislature found the evil to exist. We have a finding of fact that it does exist. Without such a finding, we would still be compelled to take judicial notice of the fact that discrimination in housing is one of the major social problems of our day, seriously and adversely affecting the public welfare. *808 . Without douht, then, the first requirement for a valid exercise of the police power has been met. Does the law in question reasonably tend to correct that evil? The majority do not deny that it does. There may be disagreement as to whether a law requiring sellers of publicly-assisted housing not to discriminate on the basis of race, creed, or color is the most effective way to attempt to correct or alleviate the problem, or the wisest way, but I think it cannot be gainsaid that, wherever the law is enforced, it does tend in some way to correct the evil. A crack appears in the walls of the ghetto, and the educational process which, we hope, will someday eliminate the evil of discrimination, begins. The second requirement for a valid exercise of the police power has therefore been met also. But the majority have decided that the law must fall because its violates two direct or positive constitutional mandates — the fourteenth amendment to the federal constitution, which forbids states to deny equal protection of the laws to persons within their jurisdiction, and Art. I, § 12, of the state constitution, which provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” These provisions do not prohibit class legislation. They do require that such legislation must apply alike to all persons within a class, and reasonable ground must exist for making a distinction between those within, and those without, a designated class. Within the limits of these restrictive rules, the legislature has a wide measure of discretion, and its determination, when expressed ' in statutory enactment, cannot be successfully attacked unless it is manifestly arbitrary, unreasonable, inequitable, and unjust. Clark v. Dwyer, supra; Faxe v. Grandview, 48 Wn. (2d) 342, 294 P. (2d) 402 ; Bauer v. State, 7 Wn. (2d) 476, 110 P. (2d) 154 . These cases also point out that it is universally held that courts will not look too nicely into *809 legislative acts to determine whether a reasonable distinction exists. These are rules which were overlooked by the trial court in its memorandum opinion and have consequently been overlooked by the majority in adopting that opinion as their own. Significantly, moreover, they have overlooked the corollary principle that the legislature, when it chooses to act to correct a given evil, need not correct all of the evil at once, but may proceed step by step. The power of a state to classify objects of legislation may be determined by degrees of evil or exercised in cases where detriment is specially experienced. Numerous cases of the United States supreme court and state courts so holding are cited in 12 Am. Jur. 163 , Constitutional Law § 485, n. 17. Among them is Laughney v. Maybury, 145 Wash. 146 , 259 Pac. 17 , 54 A. L. R. 393. Was there in this case no reasonable ground of distinction between sellers of publicly-assisted housing and sellers who have not received such aid? I think it should be manifest that while the practice of discrimination on the basis of race, creed, or color in the sale of any housing is objectionable and harmful to the community, in the case of a sale by one to whom the public (including those discriminated against) has lent its aid in acquiring his ownership, it is particularly odious. Inasmuch as the state itself is not permitted, under the fourteenth amendment, to give any support to discriminatory acts, it seems only logical to me that the legislature, recognizing the great public concern in this matter, should determine that it would not lend its aid indirectly by permitting discrimination by those who offer their publicly-assisted housing for sale. It is significant that, with the exception of Colorado, all states which have enacted laws prohibiting discrimination in housing (California, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington) limited the coverage of the initial enactment to public or publicly-assisted housing. In two of these states, New York and New Jersey, these laws have been upheld against the *810 charge of unreasonable classification. In the New York case, New York State Comm. Against Discrimination v. Pelham Hall Apartments, Inc., 10 Misc. (2d) 334, 170 N. Y. S. (2d) 750, the opinion states that “ . . . the test is whether or not the classification rests upon some reasonable basis bearing in mind the subject matter and the object of the legislation.” After noting that civil rights and anti-discrimination legislation both in New York and on the federal level have been “a step by step” proposition, the court continued: “ . . . A proceeding step by step by legislative bodies to eliminate the practice of racial discrimination in affairs closely connected with the lives of our citizens is not only a reasonable, but in view of changing times and circumstances, a required method of procedure in the interest of public welfare. The Legislature was authorized to proceed as it did in imposing a ban against discrimination in housing, that is, by gradual steps, beginning with provisions applicable to various classes of publicly owned and managed housing and over a period of time extending the provisions to specified classes of private housing projects inaugurated or carried out with governmental assistance. Proceeding in such manner required classification in the legislation enacted from time to time; and, under the circumstances, reasonable classification was justified. . . . ” In other words, is the legislature acting unreasonably when, in adopting reforms in this emotion-wrapped field involving race relations, it elects to proceed slowly? In the New Jersey case, Levitt & Sons, Inc. v. Division Against Discrimination, etc., 31 N. J. 514, 158 A. (2d) 177 (appeal dismissed for want of a substantial federal question, 363 U. S. 418 , 4 L. Ed. (2d) 1515, 80 S. Ct. 1257 ) the state supreme court dealt at length with the argument that the New Jersey law against discrimination, by including within its purview only pub.licly-assisted housing, created an unreasonable and arbitrary classification in violation of the federal and state constitutions. Quoting Clark v. Paul Gray, Inc., 306 U. S. 583 , 83 L. Ed. 1001 , 59 S. Ct. 744 , the unanimous opinion stated that there is a presumption in favor of the constitutionality .of a statute and that it will be *811 upheld unless facts judicially known or proved refute that presumption. The opinion then stated that classification will be sustained unless it causes “invidious discrimination,” and next quoted the following passage from a previous decision of the same court (New Jersey Restaurant Ass’n v. Holderman, 24 N. J. 295, 131 A. (2d) 773): “ ‘. . . It is easily stated that the classification (1) must not be palpably arbitrary or capricious, and (2) must have a rational basis in relation to the specific objective of the legislation. But the second proposition is qualified by limitations which compound the difficulties of one who assails the legislative decision. Thus it is not enough to demonstrate that the legislative objective might be more fully achieved by another, more expansive classification, for the Legislature may recognize degrees of harm and hit the evil where it is most felt, [citing cases] The Legislature may thus limit its action upon a decision to proceed cautiously, step by step, or because of practical exigencies, including administrative convenience and .expense,. . . or because of “some substantial consideration of public policy or convenience or the service of the general welfare.” . . . Hence it may “stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact.” ’ ” Applying these rules to the case at bar, the opinion rejected the “unreasonable classification” argument. It said: “Considering the circumstances which led to the enactment of the statute in question, it becomes apparent that the classification presents no constitutional difficulties. We may note the pressing need for adequate housing for minority groups. Many more in these groups than at present would be in a position to take an active and beneficial role in the cultural, social and economic life of the community were they given an opportunity, and a vital factor in affording this opportunity is access to normal housing accommodations. The portion of the statute in question which relates to housing may be viewed as a means chosen to ease the housing problem facing minority groups. It may be argued that the main purpose is to secure some measure of adequate housing for minorities and only incidentally to this purpose is discrimination proscribed. The desired end may be achieved by legislating in regard only to a *812 specific kind of housing. And the type of housing chosen is that most easily financed and as to which established patterns would least likely be disturbed. If these goals are not the intent of the Legislature, they do at least serve to demonstrate, insofar as they give a reasonable basis for the statutory classification, that the statute is not invalid on its face or palpably arbitrary. Cf. Sage Stores Co. v. State of Kansas, 323 U. S. 32, 35 , 65 S. Ct. 9 , 89 L. Ed. 25 (1944); Jamouneau v. Harner, 16 N. J. 500, 519-520 (1954), certiorari denied 349 U. S. 904 , 75 S. Ct. 580 , 99 L. Ed. 1241 (1955); Reingold v. Harper, 6 N. J. 182, 194 (1951). In the absence of a showing of an actual injury to the plaintiffs, which was not attempted in the proofs, we cannot declare the legislation unconstitutional. Thus, the means chosen by the Legislature to accomplish its goals are not unreasonable, and on that basis we hold that plaintiffs’ argument that the Law Against Discrimination incorporates an unconstitutional classification is without merit.” The trial court in the case before this court attempted to distinguish these cases by pointing out that in the New York case, multiple-unit apartment houses were involved, whereas O’Meara was merely selling a private dwelling. No attempt was made to distinguish the New Jersey case which dealt with discrimination in the sale of one-family dwelling units. I am at a loss to understand, and the majority do not explain, the theory under which they attach significance to the fact that the financing had already been secured when the 1957 law was passed. They say that O’Meara did not voluntarily subject himself to its restraints when he secured his housing. The same would be true of any person who had acquired his property, or entered into a contract for its purchase prior to the effective date of the act if it applied to all housing and not just publicly-financed housing; yet the majority apparently concede that such a law would be valid. The same facts existed in the New Jersey case, but no one saw fit to attach any significance to them. I do not see that they are at all relevant. There is no contention that this is an ex post facto law, or retroactive in effect. Without criticizing the New Jersey case in any way, the *813 majority dismiss it as “not binding precedent,” although they have no hesitation in adopting, without analysis or discussion, the trial court’s opinion rendered in this case. That “binding precedent” was criticized at some length in an article which appears in the New York Law Forum, Vol. 6, 1960, p. 38, written by Arnold Forster and Sol Rabkin. I readily recognize that this is not binding precedent either; nevertheless, the author’s analysis of the classification problem in this case is so succinct that I will take the liberty of quoting from it. After setting forth the rules which I have referred to above, regarding the heavy burden resting on one assailing a classification, to show that it is arbitrary and without reasonable basis, they say: “. . . It would appear that the legislature’s decision to impose a duty of non-discrimination on those selling housing which they obtained with the aid of the public credit has several very reasonable grounds. It is hardly arbitrary for the legislature in selecting the housing to which it will first apply a ban on discrimination, to impose that requirement of higher community conduct on those receiving public aid. Is not the strengthening of the guarantee of equal treatment implicit in our basic democratic institutions a proper requirement to impose on housing obtained by the use of the public credit? Another reasonable basis for the legislature’s selection of publicly assisted housing as the first class to be subjected to a ban on discrimination is that such a ban can be more easily enforced than a ban on other types of housing since the very involvement of a public agency in such transfers makes enforcement of the ban easier in such transactions. Furthermore, the sanction of possible delay or suspension of the public mortgage insurance is available as a potential additional enforcing device. “It is clear that there are not one, but several, completely reasonable bases for the legislative classification involved in statutes barring discrimination in publicly assisted housing and that, therefore, any effort to strike down such statutes as improper legislative classifications is improper.” The trial court seems to have been disturbed by the nature of this legislation, which imposes a limitation on an owner of real property who decides to sell it. The court *814 makes frequent reference to the concept of “freedom of contract.” But that property rights are held and must be used subject to reasonable regulations under the police power is so well established that citations of authority are unnecessary. The trial court and the majority have implicitly recognized that it is not enough to show that an incident of property ownership has been restricted in order to successfully challenge the constitutionality of an act. The freedoms protected by positive mandate of the constitution are those contained in the first amendment to the federal constitution, and Art. I, §§ 4, 5, and 11 of the state constitution. These are the freedom of religion, speech, press, and assembly. In Nostrand v. Balmer, 53 Wn. (2d) 460, 335 P. (2d) 10 , this court exercised the most extreme judicial restraint in upholding a law attacked as an interference with two of those freedoms, searching diligently through all manner of evidence (reliable and not so reliable) to find some facts which would justify its enactment. Now, confronted with an act which does not abridge any of these expressly-protected freedoms, but merely imposes a limitation on the disposition of one’s property, which is clearly reasonable and unoppressive, the majority eagerly and peremptorily strike it down. To my mind, the respondent has failed to sustain the burden of demonstrating the invalidity of the act; and the decision of the majority is an arbitrary interference with the will of the people expressed unequivocably through legislation. I would reverse. Finley, C. J., Hill, and Hunter, JJ., concur with Rosel-lini, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9794715. Public record. Not legal advice.