BELL V. MARYLAND, 378 U. S. 226 (1964)
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U.S. Supreme Court
Bell v. Maryland, 378 U.S. 226 (1964)
Bell v. Maryland
No. 12
Argued October 14-15, 1963
Decided June 22, 1964
378 U.S. 226
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND
Syllabus
Petitioners, Negro "sit-in" demonstrators, were asked to leave a Baltimore restaurant solely because of their race, refused to do so, and were convicted of violating Maryland's criminal trespass law. The convictions were affirmed by the highest state court. Subsequent to that affirmance, and prior to disposition of the case on writ of certiorari in this Court, the City of Baltimore and the State of Maryland enacted "public accommodations" laws, applicable to Baltimore, making it unlawful for restaurants to deny their services to any person because of his race.
Held: The judgments of the Maryland Court of Appeals are vacated and reversed, and the case is remanded to that court so that it may consider whether the convictions should be nullified in view of the supervening change in state law. Pp. 378 U. S. 227-242.
(a) The effect of the public accommodations laws appears to be that petitioners' conduct in refusing to leave the restaurant after being asked to do so because of their race would not be a crime today; that conduct is now recognized as the exercise of a right, and the law's prohibition is directed not at them, but at the restaurant proprietor who would deny them service because of their race. P. 378 U. S. 230.
(b) The common law rule, followed in Maryland, requires the dismissal of pending criminal proceedings charging conduct which, because of a supervening change in state law, is no longer deemed criminal; that rule would apparently apply to this case, which was pending in this Court at the time of the supervening legislation. Pp. 378 U. S. 230-232.
(c) Although Maryland has a "saving clause" statute which in, certain circumstances, saves state convictions from the effect of that rule, there is reason to doubt that the statute would be held applicable to this case. Pp. 378 U. S. 232-237.
(d) When a change in the applicable state law intervenes between decision of a case by the highest state court and decision on review here, the Court's practice is to vacate and reverse the judgment and remand the case to the state court, so that it may
reconsider it in the light of the change in state law; that practice should be followed here. Pp. 378 U. S. 237-242.
227 Md. 302,176 A. 2d 771, vacated, reversed, and remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners, 12 Negro students, were convicted in a Maryland state court as a result of their participation in a "sit-in" demonstration at Hooper's restaurant in the City of Baltimore in 1960. The convictions were based on a record showing in summary that a group of 15 to 20 Negro students, including petitioners, went to Hooper's restaurant to engage in what their counsel describes as a "sit-in protest" because the restaurant would not serve Negroes. The "hostess," on orders of Mr. Hooper, the president of the corporation owning the restaurant, told them, "solely on the basis of their color," that they would
not be served. Petitioners did not leave when requested to by the hostess and the manager; instead, they went to tables, took seats, and refused to leave, insisting that they be served. On orders of Mr. Hooper, the police were called, but they advised that a warrant would be necessary before they could arrest petitioners. Mr. Hooper then went to the police station and swore out warrants, and petitioners were accordingly arrested.
The statute under which the convictions were obtained was the Maryland criminal trespass law, § 577 of Art. 27 of the Maryland Code, 1957 edition, under which it is a misdemeanor to
"enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so."
The convictions were affirmed by the Maryland Court of Appeals, 227 Md. 302, 176 A.2d 771 (1962), and we granted certiorari. 374 U.S. 805.
We do not reach the questions that have been argued under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It appears that a significant change has taken place in the applicable law of Maryland since these convictions were affirmed by the Court of Appeals. Under this Court's settled practice in such circumstances, the judgments must consequently be vacated and reversed, and the case remanded so that the state court may consider the effect of the supervening change in state law.
Petitioners' convictions were affirmed by the Maryland Court of Appeals on January 9, 1962. Since that date, Maryland has enacted laws that abolish the crime of which petitioners were convicted. These laws accord petitioners a right to be served in Hooper's restaurant, and make unlawful conduct like that of Hooper's president and hostess in refusing them service because of their race. On June 8, 1962, the City of Baltimore enacted its Ordinance No. 1249, adding § 10A to Art. 14A of the
Baltimore City Code (1950 ed.). The ordinance, which by its terms took effect from the date of its enactment, prohibits owners and operators of Baltimore places of public accommodation, including restaurants, from denying their services or facilities to any person because of his race. A similar "public accommodations law," applicable to Baltimore City and Baltimore County, though not to some of the State's other counties, was adopted by the State Legislature on March 29, 1963. Art. 49B Md. Code § 11 (1963 Supp.). This statute went into effect on June 1, 1963, as provided by § 4 of the Act, Acts 1963, c. 227. The statute provides that:
"It is unlawful for an owner or operator of a place of public accommodation or an agent or employee of said owner or operator, because of the race, creed, color, or national origin of any person, to refuse, withhold from, or deny to such person any of the accommodations, advantages, facilities and privileges of such place of public accommodation. For the purpose of this subtitle, a place of public accommodation means any hotel, restaurant, inn, motel or an establishment commonly known or recognized as regularly engaged in the business of providing sleeping accommodations, or serving food, or both, for a consideration, and which is open to the general public. . . . [Footnote 1] "
It is clear from these enactments that petitioners' conduct in entering or crossing over the premises of Hooper's restaurant after being notified not to do so because of their race would not be a crime today; on the contrary, the law of Baltimore and of Maryland now vindicates their conduct and recognizes it as the exercise of a right, directing the law's prohibition not at them, but at the restaurant owner or manager who seeks to deny them service because of their race.
An examination of Maryland decisions indicates that, under the common law of Maryland, the supervening enactment of these statutes abolishing the crime for which petitioners were convicted would cause the Maryland Court of Appeals at this time to reverse the convictions and order the indictments dismissed. For Maryland follows the universal common law rule that, when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it. Thus, in Keller v. State, 12 Md. 322 (1858), the statute under which the appellant had been indicted and convicted was repealed by the legislature after the case had been argued on appeal in the Court of Appeals, but before that court's decision, although the repeal was not brought to the notice of the court until after the judgment of affirmance had been announced. The appellant's subsequent motion to correct the judgment was granted, and the judgment was reversed. The court explained, id. at 325-327:
"It is well settled that a party cannot be convicted after the law under which he may be prosecuted has been repealed, although the offence may have been
committed before the repeal. . . . The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior court. . . . The judgment in a criminal cause cannot be considered as final and conclusive to every intent, notwithstanding the removal of the record to a superior court. If this were so, there would be no use in taking the appeal or suing out a writ of error. . . . And so, if the law be repealed pending the appeal or writ of error, the judgment will be reversed, because the decision must be in accordance with the law at the time of final judgment."
The rule has since been reaffirmed by the Maryland court on a number of occasions. Beard v. State, 74 Md. 130, 135, 21 A. 700, 702 (1891); Smith v. State, 45 Md. 49 (1876); State v. Gambrill, 115 Md. 506, 513, 81 A. 10, 12 (1911); State v. Clifton, 177 Md. 572, 574, 10 A.2d 703, 704 (1940). [Footnote 2]
It is true that the present case is factually distinguishable, since here the legislative abolition of the crime for which petitioners were convicted occurred after rather, than before, the decision of the Maryland Court of Appeals. But that fact would seem irrelevant. For the purpose of applying the rule of the Maryland common law, it appears that the only question is whether the legislature acts before the affirmance of the conviction becomes final. In the present case, the judgment is not yet final, for it is on direct review in this Court. This would thus seem to be a case where, as in Keller, the change of law has occurred "pending an appeal on a writ of error from the judgment of an inferior court," and hence where the Maryland Court of Appeals, upon remand from this Court, would render its decision "in accordance with the law at the time of final judgment." It thus seems that the Maryland Court of Appeals would take account of the supervening enactment of the city and state public accommodations laws and, applying the principle that a statutory offense which has "ceased to exist is no longer punishable at all," Beard v. State, supra, 74 Md. 130, 135, 21 A. 700, 702 (1891), would now reverse petitioners' convictions and order their indictments dismissed.
The Maryland common law is not, however, the only Maryland law that is relevant to the question of the effect of the supervening enactments upon these convictions. Maryland has a general saving clause statute which, in certain circumstances, "saves" state convictions from the common law effect of supervening enactments. It is thus necessary to consider the impact of that clause upon the present situation. The clause, Art. 1 Md. Code § 3 (1957), reads as follows:
"The repeal, or the repeal and reenactment, or the revision, amendment or consolidation of any statute, or of any section or part of a section of any statute,
civil or criminal, shall not have the effect to release, extinguish, alter, modify or change, in whole or in part, any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such statute, section or part thereof, unless the repealing, repealing and reenacting, revising, amending or consolidating act shall expressly so provide; and such statute, section or part thereof, so repealed, repealed and reenacted, revised, amended or consolidated, shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings or prosecutions, civil or criminal, for the enforcement of such penalty, forfeiture or liability, as well as for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered or made in such actions, suits, proceedings or prosecutions imposing, inflicting or declaring such penalty, forfeiture or liability."
Upon examination of this clause and of the relevant state case law and policy considerations, we are far from persuaded that the Maryland Court of Appeals would hold the clause to be applicable to save these convictions. By its terms, the clause does not appear to be applicable at all to the present situation. It applies only to the "repeal," "repeal and reenactment," "revision," "amendment," or "consolidation" of any statute or part thereof. The effect wrought upon the criminal trespass statute by the supervening public accommodations laws would seem to be properly described by none of these terms. The only two that could even arguably apply are "repeal" and "amendment." But neither the city nor the state public accommodations enactment gives the slightest indication that the legislature considered itself to be "repealing" or "amending" the trespass law. Neither enactment refers in any way to the trespass law, as is characteristically done when a prior statute is being
repealed or amended. [Footnote 3] This fact alone raises a substantial possibility that the saving clause would be held inapplicable, for the clause might be narrowly construed -- especially since it is in derogation of the common law, and since this is a criminal case -- as requiring that a "repeal" or "amendment" be designated as such in the supervening statute itself. [Footnote 4]
The absence of such terms from the public accommodations laws becomes more significant when it is recognized that the effect of these enactments upon the trespass statute was quite different from that of an "amendment"
or even a "repeal" in the usual sense. These enactments do not -- in the manner of an ordinary "repeal," even one that is substantive, rather than only formal or technical -- merely erase the criminal liability that had formerly attached to persons who entered or crossed over the premises of a restaurant after being notified not to because of their race; they go further, and confer upon such persons an affirmative right to carry on such conduct, making it unlawful for the restaurant owner or proprietor to notify them to leave because of their race. Such a substitution of a right for a crime, and vice versa, is a possibly unique phenomenon in legislation; it thus might well be construed as falling outside the routine categories of "amendment" and "repeal."
Cogent state policy considerations would seem to support such a view. The legislative policy embodied in the supervening enactments here would appear to be much more strongly opposed to that embodied in the old enactment than is usually true in the case of an "amendment" or "repeal." It would consequently seem unlikely that the legislature intended the saving clause to apply in this situation, where the result of its application would be the conviction and punishment of persons whose "crime" has been not only erased from the statute books, but officially vindicated by the new enactments. A legislature that passed a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the "crime" of seeking service from a place of public accommodations which denies it on account of race. Since the language of the saving clause raises no barrier to a ruling in accordance with these policy considerations, we should hesitate long indeed before concluding that the Maryland Court of Appeals would definitely hold the saving clause applicable to save these convictions.
Moreover, even if the word "repeal" or "amendment" were deemed to make the saving clause prima facie applicable, that would not be the end of the matter. There would remain a substantial possibility that the public accommodations laws would be construed as falling within the clause's exception: "unless the repealing . . . act shall expressly so provide." Not only do the policy considerations noted above support such an interpretation, but the operative language of the state public accommodations enactment affords a solid basis for a finding that it does "expressly so provide" within the terms of the saving clause. Whereas most criminal statutes speak in the future tense -- see, for example, the trespass statute here involved, Art. 27 Md. Code § 577: "Any person or persons who shall enter upon or cross over . . . " -- the state enactment here speaks in the present tense, providing that "[i]t is unlawful for an owner or operator. . . ." In this very context, the Maryland Court of Appeals has given effect to the difference between the future and present tense. In Beard v. State, supra, 74 Md. 130, 21 A. 700, the court, in holding that a supervening statute did not implicitly repeal the former law, and thus did not require dismissal of the defendant's conviction under that law, relied on the fact that the new statute used the word "shall," rather than the word "is." From this, the court concluded that
"The obvious intention of the legislature in passing it was not to interfere with past offences, but merely to fix a penalty for future ones."
74 Md. at 133, 21 A. at 701. Conversely here, the use of the present, instead of the more usual future tense, may very possibly be held by the Court of Appeals, especially in view of the policy considerations involved, to constitute an "express provision" by the legislature, within the terms of the saving clause, that it did intend its new enactment to apply to past as well as future conduct -- that it did not intend the saving clause to be applied, in derogation of
the common law rule, so as to permit the continued prosecution and punishment of persons accused of a "crime" which the legislature has now declared to be a right.
As a matter of Maryland law, then, the arguments supporting a conclusion that the saving clause would not apply to save these convictions seem quite substantial. It is not for us, however, to decide this question of Maryland law, or to reach a conclusion as to how the Maryland Court of Appeals would decide it. Such a course would be inconsistent with our tradition of deference to state courts on questions of state law. Now is it for us to ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the convictions, are not necessarily presented for decision. Such a course would be inconsistent with our constitutional inability to render advisory opinions, and with our consequent policy of refusing to decide a federal question in a case that might be controlled by a state ground of decision. @See 87 U. S. 634-636. To avoid these pitfalls -- to let issues of state law be decided by state courts and to preserve our policy of avoiding gratuitous decisions of federal questions -- we have long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law.
The rule was authoritatively stated and applied in Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U. S. 126, a case where the supervening event was -- as it is here -- enactment of new state legislation asserted to change the law under which the case had been decided
by the highest state court. Speaking for the Court, Mr. Justice Stone said:
"Ordinarily, this Court on writ of error to a state court, considers only federal questions, and does not review questions of state law. But where questions of state law arising after the decision below are presented here, our appellate powers are not thus restricted. Either because new facts have supervened since the judgment below, or because of a change in the law, this Court, in the exercise of its appellate jurisdiction, may consider the state questions thus arising and either decide them or remand the cause for appropriate action by the state courts. The meaning and effect of the state statute now in question are primarily for the determination of the state court. While this Court may decide these questions, it is not obliged to do so, and, in view of their nature, we deem it appropriate to refer the determination to the state court. In order that the state court may be free to consider the question and make proper disposition of it, the judgment below should be set aside, since a dismissal of this appeal might leave the judgment to be enforced as rendered. The judgment is accordingly reversed, and the cause remanded for further proceedings."
(Citations omitted.) 273 U.S. at 273 U. S. 131.
Similarly, in Patterson v. Alabama, 294 U. S. 600, Mr. Chief Justice Hughes stated the rule as follows:
"We have frequently held that, in the exercise of our appellate jurisdiction, we have power not only to correct error in the judgment under review, but to make such disposition of the case as justice requires. And, in determining what justice does require, the Court is bound to consider any change, either in fact
or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act. We have said that to do this is not to review, in any proper sense of the term, the decision of the state court upon a nonfederal question, but only to deal appropriately with a matter arising since its judgment and having a bearing upon the right disposition of the case."
294 U.S. at 294 U. S. 607.
For other cases applying the rule, see Gulf, C. & S.F. R. Co. v. Dennis, 224 U. S. 503, 224 U. S. 505-507; Dorchy v. Kansas, 264 U. S. 286, 264 U. S. 289; Ashcraft v. Tennessee, 322 U. S. 143, 322 U. S. 155-156. [Footnote 5]
The question of Maryland law raised here by the supervening enactment of the city and state public accommodations laws clearly falls within the rule requiring us to vacate and reverse the judgment and remand the case to the Maryland Court of Appeals. Indeed, we have followed this course in other situations involving a state saving clause or similar provision, where it was considerably more probable than it is here that the State would desire its judgment to stand despite the supervening change of law. In Roth v. Delano, 338 U. S. 226, the Court vacated and remanded the judgment in light of the State's supervening repeal of the applicable statute despite the presence in the repealer of a saving clause which, unlike the one here, was clearly applicable in terms. In Dorchy v. Kansas, supra, 264 U. S. 286, the supervening event was a holding by this Court that another
portion of the same state statute was unconstitutional, and the question was whether Dorchy's conviction could stand nevertheless. The state statute had a severability provision which seemingly answered the question conclusively, providing that,
"If any section or provision of this act shall be found invalid by any court, it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section or provision. . . ."
Nevertheless, a unanimous Court vacated and reversed the judgment and remanded the case so that the question could be decided by the state court. Mr. Justice Brandeis said, 264 U.S. at 264 U. S. 290-291:
"Whether section 19 [the criminal provision under which Dorchy stood convicted] is so interwoven with the system held invalid that the section cannot stand alone is a question of interpretation, and of legislative intent. . . . Section 28 of the act [the severability clause] . . . provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely, not an inexorable command."
"The task of determining the intention of the state legislature in this respect, like the usual function of interpreting a state statute, rests primarily upon the state court. Its decision as to the severability of a provision is conclusive upon this Court. . . . In cases coming from the state courts, this Court, in the absence of a controlling state decision, may, in passing upon the claim under the federal law, decide also the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court. We think that course should be followed in this case."
". . . In order that the state court may pass upon this question, its judgment in this case, which was
rendered before our decision in (the other case), should be vacated. . . . To this end, the judgment is"
"Reversed."
Except for the immaterial fact that a severability clause, rather than a saving clause, was involved, the holding and the operative language of the Dorchy case are precisely in point here. Indeed, the need to set aside the judgment and remand the case is even more compelling here, since the Maryland saving clause is not literally applicable to the public accommodations laws, and since state policy considerations strengthen the inference that it will be held inapplicable. Here, as in Dorchy, the applicability of the clause to save the conviction "is a question of interpretation and of legislative intent," and hence it is "appropriate to leave the determination of the question to the state court." Even if the Maryland saving clause were literally applicable, the fact would remain that, as in Dorchy, the clause
"provides a rule of construction which may sometimes aid in determining that intent. But it is an aid merely, not an inexorable command."
The Maryland Court of Appeals has stated that the Maryland saving clause is likewise "merely an aid to interpretation." State v. Kennerly, note 4 supra, 204 Md. at 417, 104 A.2d at 634.
In short, this case involves not only a question of state law, but an open and arguable one. This Court thus has a "duty to recognize the changed situation," Gulf, C. & S.F.R. Co. v. Dennis, supra, 224 U.S. at 224 U. S. 507, and, by vacating and reversing the judgment and remanding the case, to give effect to the principle that "[t]he meaning and effect of the state statute now in question are primarily for the determination of the state court." Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, 273 U.S. at 273 U. S. 131.
Accordingly, the judgment of the Maryland Court of Appeals should be vacated, and the case remanded to that court, and, to this end, the judgment is
Reversed and remanded.
Another public accommodations law was enacted by the Maryland Legislature on March 14, 1964, and signed by the Governor on April 7, 1964. This statute reenacts the quoted provision from the 1963 enactment and gives it statewide application, eliminating the county exclusions. The new statute was scheduled to go into effect on June 1, 1964, but its operation has apparently been suspended by the filing of petitions seeking a referendum. See Md.Const., Art. XIV; Baltimore Sun, May 31, 1964, p. 22, col. 1. Meanwhile, the Baltimore City ordinance and the 1963 state law, both of which are applicable to Baltimore City, where Hooper's restaurant is located, remain in effect.
The rule has also been consistently recognized and applied by this Court. Thus, in @ 5 U. S. 110, Chief Justice Marshall held:
"It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, . . . I know of no court which can contest its obligation. . . . In such a case, the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."
See also 9 U. S. 283; 44 U. S. 552; 78 U. S. 95; United States v. Reisinger, 128 U. S. 398, 128 U. S. 401; United States v. Chambers, 291 U. S. 217, 291 U. S. 222-223; Massey v. United States,@ 291 U. S. 608.
Thus, the statewide public accommodations law enacted in 1964, see note 1 supra, is entitled "An Act to repeal and reenact, with amendments . . . ," the 1963 Act, and provides expressly at several points that certain portions of the 1963 Act -- none of which is here relevant -- are "hereby repealed." But the 1964 enactment, like the 1963 enactment and the Baltimore City ordinance, contains no reference whatever to the trespass law, much less a statement that that law is being in any respect "repealed" or "amended."
The Maryland case law under the saving clause is meager, and sheds little if any light on the present question. The clause has been construed only twice since its enactment in 1912, and neither case seems directly relevant here. State v. Clifton, 177 Md. 572, 10 A.2d 703 (1940); State v. Kennerly, 204 Md. 412, 104 A.2d 632, 106 A.2d 90 (1954). In two other cases, the clause was ignored. State to Use of Prince George's County Comm'rs v. American Bonding Co., 128 Md. 268, 97 A. 529 (1916); Green v. State, 170 Md. 134, 183 A. 526 (1936). The failure to apply the clause in these cases was explained by the Court of Appeals in the Clifton case, supra, 177 Md. at 576-577, 10 A.2d at 705, on the basis that "in neither of those proceedings did it appear that any penalty, forfeiture, or liability had actually been incurred." This may indicate a narrow construction of the clause, since the language of the clause would seem to have applied to both cases. Also indicative of a narrow construction is the statement of the Court of Appeals in the Kennerly case, supra, that the saving clause is "merely an aid to interpretation, stating the general rule against repeals by implication in more specific form." 204 Md. at 417, 104 A.2d at 634. Thus, if the case law has any pertinence, it supports a narrow construction of the saving clause, and hence a conclusion that the clause is inapplicable here.
See also Metzger Motor Car Co. v. Parrott, 233 U. S. 36; New York ex rel. Whitman v. Wilson, 318 U. S. 688; State Tax Comm'n of Utah v. Van Cott, 306 U. S. 511; Roth v. Delano, 338 U. S. 226, 338 U. S. 231; Williams v. Georgia, 349 U. S. 375, 349 U. S. 390-391; Trunkline Gas Co. v. Hardin County, 375 U. S. 8.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE GOLDBERG concurs as respects Parts II-V, for reversing and directing dismissal of the indictment.
I
I reach the merits of this controversy. The issue is ripe for decision, and petitioners, who have been convicted of asking for service in Hooper's restaurant, are entitled to an answer to their complaint here and now.
On this the last day of the Term, we studiously avoid decision of the basic issue of the right of public accommodation under the Fourteenth Amendment, remanding the case to the state court for reconsideration in light of an issue of state law.
This case was argued October 14 and 15, 1963 -- over eight months ago. The record of the case is simple, the constitutional guidelines well marked, the precedents marshalled. Though the Court is divided, the preparation of opinions laying bare the differences does not require even two months, let alone eight. Moreover, a majority reach the merits of the issue. Why then should a minority prevent a resolution of the differing views?
The laws relied on for vacating and remanding were enacted June 8, 1962, and March 29, 1963 -- long before oral argument. We did indeed not grant certiorari until June 10, 1963. Hence, if we were really concerned with this state law question, we would have vacated and remanded for reconsideration in light of those laws on June 10, 1963. By now, we would have had an answer, and been able to put our decision into the mainstream of the law at this critical hour. If the parties had been concerned,
they too might have asked that we follow that course. Maryland adverted to the new law merely to show why certiorari should not be granted. At the argument and at our conferences, we were not concerned with that question, the issue being deemed frivolous. Now it is resurrected to avoid facing the constitutional question.
The whole Nation has to face the issue; Congress is conscientiously considering it; some municipalities have had to make it their first order of concern; law enforcement officials are deeply implicated, North as well as South; the question is at the root of demonstrations, unrest, riots, and violence in various areas. The issue, in other words, consumes the public attention. Yet we stand mute, avoiding decision of the basic issue by an obvious pretense.
The clash between Negro customers and white restaurant owners is clear; each group claims protection by the Constitution, and tenders the Fourteenth Amendment as justification for its action. Yet we leave resolution of the conflict to others, when, if our voice were heard, the issues for the Congress and for the public would become clear and precise. The Court was created to sit in troubled times, as well as in peaceful days.
There is a school of thought that our adjudication of a constitutional issue should be delayed and postponed as long as possible. That school has had many stout defenders, and ingenious means have at times been used to avoid constitutional pronouncements. Yet judge-made rules, fashioned to avoid decision of constitutional questions, largely forget what Chief Justice Marshall wrote in @ 10 U. S. 137-138:
"Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the
United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the states are obviously founded in this sentiment, and the constitution of the United States contains what may be deemed a bill of rights for the people of each state."
Much of our history has shown that what Marshall said of the encroachment of legislative power on the rights of the people is true also of the encroachment of the judicial branch, as where state courts use unconstitutional procedures to convict people or make criminal what is beyond the reach of the States. I think our approach here should be that of Marshall in @ 5 U. S. 177-178, where the Court spoke with authority though there was an obviously easy way to avoid saying anything:
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
"So, if a law be in opposition to the constitution -- if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or, conformably to the constitution, disregarding the law -- the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."
We have in this case a question that is basic to our way of life and fundamental in our constitutional scheme. No question preoccupies the country more than this one;
it is plainly justiciable; it presses for a decision one way or another; we should resolve it. The people should know that, when filibusters occupy other forums, when oppressions are great, when the clash of authority between the individual and the State is severe, they can still get justice in the courts. When we default, as we do today, the prestige of law in the life of the Nation is weakened.
For these reasons, I reach the merits, and I vote to reverse the judgments of conviction outright.
II
The issue in this case, according to those who would affirm, is whether a person's "personal prejudices" may dictate the way in which he uses his property and whether he can enlist the aid of the State to enforce those "personal prejudices." With all respect, that is not the real issue. The corporation that owns this restaurant did not refuse service to these Negroes because "it" did not like Negroes. The reason "it" refused service was because "it" thought "it" could make more money by running a segregated restaurant.
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. The reasons were wholly commercial ones:
"I set at the table with him and two other people and reasoned and talked to him why my policy was not yet one of integration, and told him that I had two hundred employees, and half of them were colored. I thought as much of them as I did the white employees. I invited them back in my kitchen if they'd like to go back and talk to them. I wanted to prove to them it wasn't my policy, my personal prejudice -- we were not, that I had valuable colored employees, and I thought just as much of them. I
tried to reason with these leaders, told them that, as long as my customers were deciding who they want to eat with -- I'm at the mercy of my customers. I'm trying to do what they want. If they fail to come in, these people are not paying my expenses, and my bills. They didn't want to go back and talk to my colored employees, because every one of them are in sympathy with me, and, that is, we're in sympathy with what their objectives are, with what they are trying to abolish. . . ."
(Italics added.)
Here, as in most of the sit-in cases before us, the refusal of service did not reflect "personal prejudices," but business reasons. [Footnote 2/1] Were we today to hold that segregated restaurants whose racial policies were enforced by a State violated the Equal Protection Clause, all restaurants would be on an equal footing, and the reasons given in this and most of the companion cases for refusing service to Negroes would evaporate. Moreover, when corporate restaurateurs are involved, whose "personal prejudices" are being protected? The stockholders"? The directors"? The officers"? The managers"? The truth is, I think, that the corporate interest is in making money, not in protecting "personal prejudices."
III
I leave those questions to another part of this opinion, [Footnote 2/2] and turn to an even more basic issue.
I now assume that the issue is the one stated by those who would affirm. The case in that posture deals with a relic of slavery -- an institution that has cast a long shadow across the land, resulting today in a second-class citizenship in this area of public accommodations.
The Thirteenth, Fourteenth, and Fifteenth Amendments had
"one pervading purpose . . . we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him."
Slaughter-House Cases, 16 Wall. 36.
Prior to those Amendments, Negroes were segregated and disallowed the use of public accommodations except and unless the owners chose to serve them. To affirm these judgments would remit those Negroes to their old status, and allow the States to keep them there by the force of their police and their judiciary.
We deal here with public accommodations -- with the right of people to eat and travel as they like and to use facilities whose only claim to existence is serving the public. What the President said in his State of the Union Message on January 8, 1964, states the constitutional right of all Americans, regardless of race or color, to be treated equally by all branches of government:
"Today Americans of all races stand side by side in Berlin and in Vietnam."
"They died side by side in Korea."
"Surely they can work and eat and travel side by side in their own country."
The Black Codes were a substitute for slavery; segregation was a substitute for the Black Codes; [Footnote 2/3]
the discrimination in these sit-in cases is a relic of slavery. [Footnote 2/4]
The Fourteenth Amendment says "No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States." The Fourteenth Amendment also makes every person who is born here a citizen, and there is no second or third or fourth class of citizenship. See, e.g., Schneider v. Rusk, 377 U. S. 163, 377 U. S. 168.
We deal here with incidents of national citizenship. As stated in the @ 83 U. S. 71-72, concerning the federal rights resting on the Thirteenth, Fourteenth, and Fifteenth Amendments:
". . . no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.
When we deal with Amendments touching the liberation of people from slavery, we deal with rights 'which owe their existence to the Federal government, its National character, its Constitution, or its laws.' Id., 16 Wall. at 83 U. S. 79. We are not in the field of exclusive municipal regulation, where federal intrusion might"
"fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character."
Id., 16 Wall. at 83 U. S. 78.
There has been a judicial reluctance to expand the content of national citizenship beyond racial discrimination, voting rights, the right to travel, safe custody in the hands of a federal marshal, diplomatic protection abroad, and the like. See Slaughter-House Cases, supra; Logan v. United States, 144 U. S. 263; United States v. Classic, 313 U. S. 299; Edwards v. California, 314 U. S. 160; Kent v. Dulles, 357 U. S. 116. The reluctance has been due to a fear of creating constitutional refuges for a host of rights historically subject to regulation. See Madden v. Kentucky, 309 U. S. 83, overruling Colgate v. Harvey, 296 U. S. 404. But those fears have no relevance here, where we deal with Amendments whose dominant purpose was to guarantee the freedom of the slave race and establish a regime where national citizenship has only one class.
The manner in which the right to be served in places of public accommodations is an incident of national citizenship and of the right to travel is summarized in H.R.Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., pp. 7-8:
"An official of the National Association for the Advancement of Colored People testified before the Senate Commerce Subcommittee as follows:"
" For millions of Americans, this is vacation time. Swarms of families load their automobiles and trek across country. I invite the members of this committee
to imagine themselves darker in color and to plan an auto trip from Norfolk, Va., to the gulf coast of Mississippi, say, to Biloxi. Or one from Terre Haute, Ind., to Charleston, S.C., or from Jacksonville, Fla., to Tyler, Tex."
"How far do you drive each day? Where and under what conditions can you and your family eat? Where can they use a restroom? Can you stop driving after a reasonable day behind the wheel, or must you drive until you reach a city where relatives or friends will accommodate you and yours for the night? Will your children be denied a soft drink or an ice cream cone because they are not white?"
"In response to Senator Pastore's question as to what the Negro must do, there was the reply:"
" Where you travel through what we might call hostile territory, you take your chances. You drive and you drive and you drive. You don't stop where there is a vacancy sign out at a motel at 4 o'clock in the afternoon and rest yourself; you keep on driving until the next city or the next town where you know somebody or they know somebody who knows somebody who can take care of you."
" This is the way you plan it."
" Some of them don't go."
"Daily we permit citizens of our Nation to be humiliated and subjected to hardship and abuse solely because of their color."
As stated in the first part of the same Report, p. 18:
"Today, more than 100 years after their formal emancipation, Negroes, who make up over 10 percent of our population, are, by virtue of one or another type of discrimination, not accorded the rights, privileges, and opportunities which are considered to be, and must be, the birthright of all citizens. "
When one citizen, because of his race, creed, or color, is denied the privilege of being treated as any other citizen in places of public accommodation, we have classes of citizenship, one being more degrading than the other. That is at war with the one class of citizenship created by the Thirteenth, Fourteenth, and Fifteenth Amendments.
As stated in Ex parte Virginia, 100 U. S. 339, 100 U. S. 344-345, where a federal indictment against a state judge for discriminating against Negroes in the selection of jurors was upheld:
"One great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood into perfect equality of civil rights with all other persons within the jurisdiction of the States. They were intended to take away all possibility of oppression by law because of race or color. They were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress."
IV
The problem in this case, and in the other sit-in cases before us, is presented as though it involved the situation of "a private operator conducting his own business on his own premises and exercising his own judgment" [Footnote 2/5] as to whom he will admit to the premises.
The property involved is not, however, a man's home or his yard, or even his fields. Private property is involved, but it is property that is serving the public. As my Brother GOLDBERG says, it is a "civil" right, not a "social," right with which we deal. Here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned, it might just as well be a hospital refusing
admission to a sick or injured Negro (cf. Simkins v Moses H. Cone Memorial Hospital, 323 F.2d 959), or a drugstore refusing antibiotics to a Negro, or a bus denying transportation to a Negro, or a telephone company refusing to install a telephone in a Negro's home.
The problem with which we deal has no relation to opening or closing the door of one's home. The home, of course, is the essence of privacy, in no way dedicated to public use, in no way extending an invitation to the public. Some businesses, like the classical country store where the owner lives overhead or in the rear, make the store an extension, so to speak, of the home. But such is not this case. The facts of these sit-in cases have little resemblance to any institution of property which we customarily associate with privacy.
Joseph H. Choate, who argued the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 534 [argument of counsel omitted from electronic version]), said:
"I have thought that one of the fundamental objects of all civilized government was the preservation of the rights of private property. I have thought that it was the very keystone of the arch upon which all civilized government rests, and that, this once abandoned, everything was at stake and in danger. That is what Mr. Webster said in 1820 at Plymouth, and I supposed that all educated, civilized men believed in that."
Charles A. Beard had the theory that the Constitution was "an economic document drawn with superb skill by men whose property interests were immediately at stake." An Economic Interpretation of the Constitution of the United States (1939), p. 188. That school of thought would receive new impetus from an affirmance of these judgments. Seldom have modern cases (cf. the ill-starred Dred Scott decision, 19 How. 393) so exalted property in suppression of individual rights. We would
reverse the modern trend were we to hold that property voluntarily serving the public can receive state protection when the owner refuses to serve some solely because they are colored.
There is no specific provision in the Constitution which protects rights of privacy and enables restaurant owners to refuse service to Negroes. The word "property" is indeed not often used in the Constitution, though, as a matter of experience and practice, we are committed to free enterprise. The Fifth Amendment makes it possible to take "private property" for public use only on payment of "just compensation." The ban on quartering soldiers in any home in time of peace, laid down by the Third Amendment, is one aspect of the right of privacy. The Fourth Amendment, in its restrictions on searches and seizures, also sets an aura of privacy around private interests. And the Due Process Clauses of the Fifth and Fourteenth Amendments lay down the command that no person shall be deprived "of life, liberty, or property, without due process of law." (Italics added.) From these provisions, those who would affirm find emanations that lead them to the conclusion that the private owner of a restaurant serving the public can pick and choose whom he will serve and restrict his dining room to whites only.
Apartheid, however, is barred by the common law as respects innkeepers and common carriers. There were, to be sure, criminal statutes that regulated the common callings. But the civil remedies were made by judges who had no written constitution. We, on the other hand, live under a constitution that proclaims equal protection under the law. Why then, even in the absence of a statute, should apartheid be given constitutional sanction in the restaurant field? That was the question I asked in Lombard v. Louisiana, 373 U. S. 267. I repeat it here. Constitutionally speaking, why should Hooper Food Co., Inc.,
or Peoples Drug Stores -- or any other establishment that dispenses food or medicines -- stand on a higher, more sanctified level than Greyhound Bus when it comes to a constitutional right to pick and choose its customers?
The debates on the Fourteenth Amendment show, as my Brother GOLDBERG points out, that one of its purposes was to grant the Negro "the rights and guarantees of the good old common law." Post at 378 U. S. 294. The duty of common carriers to carry all, regardless of race, creed, or color, was in part the product of the inventive genius of judges. See Lombard v. Louisiana, 373 U.S. at 373 U. S. 275-277. We should make that body of law the common law of the Thirteenth and Fourteenth Amendments, so to speak. Restaurants in the modern setting are as essential to travelers as inns and carriers.
Are they not as much affected with a public interest? Is the right of a person to eat less basic than his right to travel, which we protected in Edwards v. California, 314 U. S. 160? Does not a right to travel in modern times shrink in value materially when there is no accompanying right to eat in public places?
The right of any person to travel interstate irrespective of race, creed, or color is protected by the Constitution. Edwards v. California, supra. Certainly his right to travel intrastate is as basic. Certainly his right to eat at public restaurants is as important in the modern setting as the right of mobility. In these times, that right is, indeed, practically indispensable to travel, either interstate or intrastate.
V
The requirement of equal protection, like the guarantee of privileges and immunities of citizenship, is a constitutional command directed to each State.
State judicial action is as clearly "state" action as state administrative action. Indeed, we held in Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 20, that
"State action, as that
phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms."
That case involved suits in state courts to enforce restrictive covenants in deeds of residential property whereby the owner agreed that it should not be used or occupied by any person except a Caucasian. There was no state statute regulating the matter. That is, the State had not authorized by legislative enactment the use of restrictive covenants in residential property transactions; nor was there any administrative regulation of the matter. Only the courts of the State were involved. We held without dissent, in an opinion written by Chief Justice Vinson, that there was nonetheless state action within the meaning of the Fourteenth Amendment:
"The short of the matter is that, from the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of this Court that the action of the States to which the Amendment has reference includes action of state courts and state judicial officials. Although, in construing the terms of the Fourteenth Amendment, differences have from time to time been expressed as to whether particular types of state action may be said to offend the Amendment's prohibitory provisions, it has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government."
Id., 334 U.S. at 334 U. S. 18.
At the time of the Shelley case, there was, to be sure, a Congressional Civil Rights Act that guaranteed all citizens the same right to purchase and sell property "as is enjoyed by white citizens." Id., 334 U.S. at 334 U. S. 11. But the existence of that statutory right, like the existence of a right under
the Constitution, is no criterion for determining what is or what is not "state" action within the meaning of the Fourteenth Amendment. The conception of "state" action has been considered in light of the degree to which a State has participated in depriving a person of a right. "Judicial" action alone has been considered ample in hundreds of cases. Thus, "state action" took place only by judicial action in cases involving the use of coerced confessions (e.g., Chambers v. Florida, 309 U. S. 227), the denial to indigents of equal protection in judicial proceedings (e.g., Griffin v. Illinois, 351 U. S. 12), and the action of state courts in punishing for contempt by publication (e.g., Bridges v. California, 314 U. S. 252).
Maryland's action against these Negroes was as authoritative as any case where the State in one way or another puts its full force behind a policy. The policy here was segregation in places of public accommodation; and Maryland enforced that policy with her police, her prosecutors, and her courts.
The owners of the residential property in Shelley v. Kraemer were concerned, as was the corporate owner of this Maryland restaurant, over a possible decrease in the value of the property if Negroes were allowed to enter. It was testified in Shelley v. Kraemer that white purchasers got better bank loans than Negro purchasers:
"A. Well, I bought 1238 north Obert, a 4-family flat, about a year ago through a straw party, and I was enabled to secure a much larger first deed of trust than I would have been able to do at the present home on Garfield."
"The Court: I understand what you mean: it's easier to finance?"
"A. Yes, easier to finance through white. That's common knowledge. "
"Q. You mean if property is owned by a white person, its easier to finance it?"
"A. White can secure larger loans, better loans. I have a 5% loan."
In McGhee v. Sipes, a companion case to Shelley v. Kraemer, a realtor testified:
"I have seen the result of influx of colored people moving into a white neighborhood. There is a depression of values to start with, general run down of the neighborhood within a short time afterwards. I have, however, seen one exception. The colored people on Scotten, south of Tireman, have kept up their property pretty good and enjoyed them. As a result of this particular family's moving in. the people in the section are rather panic-stricken, and they are willing to sell -- the only thing that is keeping them from throwing their stuff on the market and giving it away is the fact that they think they can get one or two colored people in there out of there. My own sales have been affected by this family. . . ."
"I am familiar with the property at 4626 Seebaldt, and the value of it with a colored family in it is fifty-two hundred, and if there was no colored family in it, I would say sixty-eight hundred. I would say seven thousand is a fair price for that property."
While the purpose of the restrictive covenant is in part to protect the commercial values in a "closed" community (see Hundley v. Gorewitz, 77 U.S.App.D.C. 48, 132 F.2d 23, 24), it at times involves more. The sale to a Negro may bring a higher price than a sale to a white. See Swain v. Maxwell, 355 Mo. 448, 454, 196 S.W.2d 780, 785. Yet the resistance to having a Negro as a neighbor is often strong. All-white or all-Caucasian residential communities are often preferred by the owners.
An occupant of a "white" area testified in Hurd v. Hodge, 334 U. S. 24, another companion case to Shelley v. Kraemer:
". . . we feel bitter towards you for coming in and breaking up our block. We were very peaceful and harmonious there, and we feel that you bought that property just to transact it over to colored people, and we don't like it, and naturally we feel bitter towards you. . . ."
This witness added:
"A. The complexion of the person doesn't mean anything."
"Q. The complexion does not?"
"A. It is a fact that he is a negro."
"Q. I see, so no matter how brown a negro may be, no matter how white they are, you object to them?"
"A. I would say yes, Mr. Houston. . . . I want to live with my own color people."
The preferences involved in Shelley v. Kraemer and its companion cases were far more personal than the motivations of the corporate managers in the present case when they declined service to Negroes. Why should we refuse to let state courts enforce apartheid in residential areas of our cities, but let state courts enforce apartheid in restaurants? If a court decree is state action in one case, it is in the other. Property rights, so heavily underscored, are equally involved in each case.
The customer in a restaurant is transitory; he comes and may never return. The colored family who buys the house next door is there for keeps -- night and day. If "personal prejudices" are not to be the criterion in one case, they should not be in the other. We should put these restaurant cases in line with Shelley v. Kraemer, holding that what the Fourteenth Amendment requires in restrictive covenant cases it also requires from restaurants.
Segregation of Negroes in the restaurants and lunch counters of parts of America is a relic of slavery. It is a badge of second-class citizenship. It is a denial of a privilege and immunity of national citizenship and of the equal protection guaranteed by the Fourteenth Amendment against abridgment by the States. When the state police, the state prosecutor, and the state courts unite to convict Negroes for renouncing that relic of slavery, the "State" violates the Fourteenth Amendment.
I would reverse these judgments of conviction outright, as these Negroes, in asking for service in Hooper's restaurant, were only demanding what was their constitutional right.
See 378 U. S.
See 378 U. S.
For accounts of the Black Codes see Fleming, The Sequel of Appomattox (1919), pp. 94-98; Sen.Ex.Doc.No.6, 39th Cong., 2d Sess.; I Oberholtzer, A History of the United States Since the Civil War (1917), pp. 126-127, 136-137, 175. They are summarized as follows by Morison and Commager, The Growth of the American Republic (1950), pp. 17-18:
"These black codes provided for relationships between the whites and the blacks in harmony with realities -- as the whites understood them -- rather than with abstract theory. They conferred upon the freedmen fairly extensive privileges, gave them the essential rights of citizens to contract, sue and be sued, own and inherit property, and testify in court, and made some provision for education. In no instance were the freedmen accorded the vote or made eligible for juries, and, for the most part, they were not permitted to testify against white men. Because of their alleged aversion to steady work, they were required to have some steady occupation, and subjected to special penalties for violation of labor contracts. Vagrancy and apprenticeship laws were especially harsh, and lent themselves readily to the establishment of a system of peonage. The penal codes provided harsher and more arbitrary punishments for blacks than for whites, and some states permitted individual masters to administer corporal punishment to 'refractory servants.' Negroes were not allowed to bear arms or to appear in all public places, and there were special laws governing the domestic relations of the blacks. In some states, laws closing to the freedmen every occupation save domestic and agricultural service betrayed a poor white jealousy of the Negro artisan. Most codes, however, included special provision to protect the Negro from undue exploitation and swindling. On the whole, the black codes corresponded fairly closely to the essential fact that nearly four million ex-slaves needed special attention until they were ready to mingle in free society on more equal terms. But, in such states as South Carolina and Mississippi, there was clearly evident a desire to keep the freedmen in a permanent position of tutelage, if not of peonage."
Other "relics of slavery" have recently come before this Court. In Hamilton v. Alabama, 376 U. S. 650, we reversed a judgment of contempt imposed on a Negro witness under these circumstances:
"Cross examination by Solicitor Rayburn:"
"Q. What is your name, please?"
"A. Miss Mary Hamilton "
"Q. Mary, I believe -- you were arrested -- who were you arrested by?"
"A. My name is Miss Hamilton. Please address me correctly."
"Q. Who were you arrested by, Mary?"
"A. I will not answer a question --"
"By Attorney Amaker: The witness's name is Miss Hamilton."
"A. -- your question until I am addressed correctly."
"The Court: Answer the question."
"The Witness: I will not answer them unless I am addressed correctly."
"The Court: You are in contempt of court --"
"Attorney Conley: Your Honor -- your Honor --"
"The Court: You are in contempt of this court, and you are sentenced to five days in jail and a fifty dollar fine."
"Additional relics of slavery are mirrored in recent decisions: Brown v. Board of Education, 347 U. S. 483 (segregated schools); Johnson v. Virginia, 373 U. S. 61 (segregated courtroom); Peterson v. Greenville, 373 U. S. 244, and Lombard v. Louisiana, 373 U. S. 267 (segregated restaurants); Wright v. Georgia, 373 U. S. 284, and Watson v. Memphis, 373 U. S. 526 (segregated public parks)."
Wright, The Sit-in Movement: Progress Report and Prognosis, 9 Wayne L.Rev. 445, 450 (1963).
|378 U.S. 226app1|
APPENDIX I TO OPINION OF MR. JUSTICE DOUGLAS
In the sit-in cases involving eating places last Term and this Term, practically all restaurant or lunch counter owners whose constitutional rights were vindicated below are corporations. Only two out of the 20 before us are noncorporate, as 378 U. S. Some of these corporations are small, privately owned affairs. Others are large, national or regional businesses with many stockholders:
S. H. Kress & Co., operating 272 stores in 30 States, its stock being listed on the New York Stock Exchange; McCrory Corporation, with 1,307 stores, its stock being listed on the New York Stock Exchange; J. J. Newberry Co., with 567 stores of which 371 serve food, its stock being listed on the New York Stock Exchange; F. W. Woolworth Co., with 2,130 stores, its stock also being listed on the New York Stock Exchange; Eckerd Drugs, having 17 stores with its stock traded over the counter. F. W. Woolworth has over 90,000 stockholders; J. J. Newberry about 8,000; McCrory over 24,000; S. H. Kress over 8,000; Eckerd Drugs about 1,000.
At the national level, most "eating places," as 378 U. S. are individual proprietorships or partnerships. But a substantial number are corporate in form, and even though in numbers they are perhaps an eighth of the others, in business done they make up a much larger percentage of the total.
Those living in the Washington, D.C., metropolitan area know that it is true in that area -- the hotels are incorporated; Howard Johnson Co., listed on the New York Stock Exchange, has 650 restaurants and over 15,000 stockholders; Hot Shoppes, Inc., has 4,900 stockholders; Thompson Co. (involved in District of Columbia v. John R. Thompson Co., 346 U. S. 100) has 50 restaurants in this country with over 1,000 stockholders, and its stock is listed on the New York Stock Exchange; Peoples Drug Stores, with a New York Stock Exchange listing, has nearly 5,000 stockholders. See Moody's Industrial Manual (1963 ed.).
All the sit-in cases involve a contest in a criminal trial between Negroes who sought service and state prosecutors and state judges who enforced trespass laws against them. The corporate beneficiaries of these convictions, those whose constitutional rights were vindicated by these convictions, are not parties to these suits. The beneficiary in the present case was Hooper Food Co., Inc., a Maryland corporation; and, as seen in 378 U. S. "eating places" in Maryland owned by corporations, though not a fourth in number of those owned by individuals or partnerships, do nearly as much business as the other two combined.
So far as the corporate owner is concerned, what constitutional right is vindicated? It is said that ownership of property carries the right to use it in association with such people as the owner chooses. The corporate owners in these cases -- the stockholders -- are unidentified members of the public at large, who probably never saw these petitioners, who may never have frequented
these restaurants. What personal rights of theirs would be vindicated by affirmance? Why should a stockholder in Kress, Woolworth, Howard Johnson, or any other corporate owner in the restaurant field have standing to say that any associational rights personal to him are involved? Why should his interests -- his associational rights -- make it possible to send these Negroes to jail?
Who, in this situation, is the corporation? Whose racial prejudices are reflected in "its" decision to refuse service to Negroes? The racial prejudices of the manager? Of the stockholders? Of the board of directors?
The Court in Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394, interrupted counsel on oral argument to say,
"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does."
118 U.S. at 118 U. S. 396. Later, the Court held that corporations are "persons" within the meaning of the Due Process Clause of the Fourteenth Amendment. Minneapolis & St. L.R. Co. v. Beckwith, 129 U. S. 26, 129 U. S. 28. While that view is the law today, it prevailed only over dissenting opinions. See the dissent of MR. JUSTICE BLACK in Connecticut General Co. v. Johnson, 303 U. S. 77, 303 U. S. 85; and my dissent in Wheeling Steel Corp. v. Glander, 337 U. S. 562, 337 U. S. 576. MR. JUSTICE BLACK said of that doctrine and its influence:
". . . of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations."
Connecticut General Co. v. Johnson, 303 U.S. at 303 U. S. 90.
A corporation, like any other "client," is entitled to the attorney-client privilege. See Radiant Burners, Inc., v. American Gas Ass'n, 320 F.2d 314. A corporation is protected as a publisher by the Freedom of the Press Clause of the First Amendment. Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 244; New York Times Co. v. Sullivan, 376 U. S. 254. A corporation, over the dissent of the first Mr. Justice Harlan, was held entitled to protection against unreasonable searches and seizures by reason of the Fourth Amendment. Hale v. Henkel, 201 U. S. 43, 201 U. S. 76-77. On the other hand, the privilege of self-incrimination guaranteed by the Fifth Amendment cannot be utilized by a corporation. United States v. White, 322 U. S. 694. "The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals." Id. at 322 U. S. 698.
We deal here, we are told, with personal rights -- the rights pertaining to property. One need not share his home with one he dislikes. One need not allow another to put his foot upon his private domain for any reason he desires -- whether bigoted or enlightened. In the simple agricultural economy that Jefferson extolled, the conflicts posed were highly personal. But how is a "personal" right infringed when a corporate chain store, for example, is forced to open its lunch counters to people of all races? How can that so-called right be elevated to a constitutional level? How is that corporate right more "personal" than the right against self-incrimination?
The revolutionary change effected by an affirmance in these sit-in cases would be much more damaging to an open and free society than what the Court did when it gave the corporation the sword and the shield of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Affirmance finds in the Constitution a corporate right to refuse service to anyone "it" chooses, and to get the State to put people in jail who defy "its" will.
More precisely, affirmance would give corporate management vast dimensions for social planning. [Footnote 3/1]
Affirmance would make corporate management the arbiter of one of the deepest conflicts in our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid best suited the corporate need; or, if its profits would be better served by lowering the barriers of segregation, it could do so.
Veblen, while not writing directly about corporate management and the racial issue, saw the danger of leaving fundamental, governmental decisions to the managers or absentee owners of our corporate enterprises:
"Absentee ownership and absentee management on this grand scale is immune from neighborly personalities and from sentimental considerations and scruples."
"It takes effect through the colorless and impersonal channels of corporation management at the
hands of businesslike officials whose discretion and responsibility extend no farther than the procuring of a reasonably large -- that is to say, the largest obtainable -- net gain in terms of price. The absentee owners are removed out of all touch with the working personnel or with the industrial work in hand, except such remote, neutral and dispassionate contact by proxy as may be implied in the continued receipt of a free income; and very much the same is true for the business agents of the absentee owners, the investment bankers and the staff of responsible corporation officials. Their relation to what is going on, and to the manpower by use of which it is going on, is a fiscal relation. As industry, as a process of workmanship and a production of the means of life, the work in hand has no meaning for the absentee owners sitting in the fiscal background of these vested interests. Personalities and tangible consequences are eliminated, and the business of governing the rate and volume of the output goes forward in terms of funds, prices, and percentages."
Absentee Ownership (1923), pp. 215-216.
The point is that corporate motives in the retail field relate to corporate profits, corporate prestige, and corporate public relations. [Footnote 3/2] Corporate motives have no tinge of
an individual's choice to associate only with one class of customers, to keep members of one race from his "property," to erect a wall of privacy around a business in the manner that one is erected around the home.
At times, a corporation has standing to assert the constitutional rights of its members, as otherwise the rights peculiar to the members as individuals might be lost or impaired. Thus, in NAACP v. Alabama, 357 U. S. 449, the question was whether the NAACP, a membership corporation, could assert on behalf of its members a right personal to them to be protected from compelled disclosure by the State of their affiliation with it. In that context, we said the NAACP was "the appropriate party to assert these rights, because it and its members are in every practical sense identical." Id. at 357 U. S. 459. We felt, moreover, that to deny the NAACP standing to raise the question and to require it to be claimed by the members themselves "would result in nullification of the right at the very moment of its assertion." Ibid. Those were the important reasons governing our decision, the adverse effect of disclosure on the NAACP itself being only a makeweight. Id. at 357 U. S. 459-460.
The corporate owners of a restaurant, like the corporate owners of streetcars, buses, telephones, and electric light and gas facilities, are interested in balance sheets and in profit and loss statements. "It" does not stand at the door turning Negroes aside because of "its" feelings of antipathy to black-skinned people. "It" does not have any associational rights comparable to the classic individual store owner at a country crossroads whose store, in the dichotomy of an Adam Smith, was indeed no different from his home. "It" has been greatly transformed, as Berle and Means, The Modern Corporation and Private Property (1932), made clear a generation ago; and "it" has also transformed our economy. Separation of power
or control from beneficial ownership was part of the phenomenon of change:
"This dissolution of the atom of property destroys the very foundation on which the economic order of the past three centuries has rested. Private enterprise, which has molded economic life since the close of the middle ages, has been rooted in the institution of private property. Under the feudal system, its predecessor, economic organization grew out of mutual obligations and privileges derived by various individuals from their relation to property which no one of them owned. Private enterprise, on the other hand, has assumed an owner of the instruments of production with complete property rights over those instruments. Whereas the organization of feudal economic life rested upon an elaborate system of binding customs, the organization under the system of private enterprise has rested upon the self-interest of the property owner -- a self-interest held in check only by competition and the conditions of supply and demand. Such self-interest has long been regarded as the best guarantee of economic efficiency. It has been assumed that, if the individual is protected in the right both to use his own property as he sees fit and to receive the full fruits of its use, his desire for personal gain, for profits, can be relied upon as an effective incentive to his efficient use of any industrial property he may possess."
"In the quasi-public corporation, such an assumption no longer holds. . . . it is no longer the individual himself who uses his wealth. Those in control of that wealth, and therefore in a position to secure industrial efficiency and produce profits, are no longer, as owners, entitled to the bulk of such profits. Those who control the destinies of the typical
modern corporation own so insignificant a fraction of the company's stock that the returns from running the corporation profitably accrue to them in only a very minor degree. The stockholders, on the other hand, to whom the profits of the corporation go, cannot be motivated by those profits to a more efficient use of the property, since they have surrendered all disposition of it to those in control of the enterprise. The explosion of the atom of property destroys the basis of the old assumption that the quest for profits will spur the owner of industrial property to its effective use. It consequently challenges the fundamental economic principle of individual initiative in industrial enterprise."
Id. at 8-9. By like token, the separation of the atom of "property" into one unit of "management" and into another of "absentee ownership" has in other ways basically changed the relationship of that "property" to the public.
A corporation may exclude Negroes if "it" thinks "it" can make more money doing so. "It" may go along with community prejudices when the profit and loss statement will benefit; "it" is unlikely to go against the current of community prejudice when profits are endangered. [Footnote 3/3]
Veblen stated somewhat the same idea in Absentee Ownership (1923), p. 107:
". . . the arts of business are arts of bargaining, effrontery, salesmanship, make-believe, and are directed to the gain of the businessman at the cost of the community at large and in detail. Neither tangible performance nor the common good is a business proposition. Any material use which his traffic may serve is quite beside the businessman's purpose, except indirectly, insofar as it may serve to influence his clientele to his advantage."
By this standard, the bus company could refuse service to Negroes if "it" felt "its" profits would increase once apartheid were allowed in the transportation field.
In the instant case, G. Carroll Hooper, president of the corporate chain owning the restaurant here involved, testified concerning the episode that gave rise to these convictions. His reasons were wholly commercial ones, as we have already seen.
There are occasions when the corporation is little more than a veil for man and wife or brother and brother, and disregarding the corporate entity often is the instrument for achieving a just result. But the relegation of a Negro customer to second-class citizenship is not just. Nor is fastening apartheid on America a worthy occasion for tearing aside the corporate veil.
The conventional claims of corporate management are stated in Ginzberg and Berg, Democratic Values and the Rights of Management (1963), pp. 153-154:
"The founding fathers, despite some differences of opinion among them, were of one mind when it came to fundamentals -- the best guarantee of freedom was the retention by the individual of the broadest possible scope for decisionmaking. And early in the nation's history, when the Supreme Court decided that the corporation possessed many of the same rights as individuals, continuity was maintained in basic structure; the corporate owner as well as the individual had wide scope for decisionmaking. In recent decades, another extension of this trend became manifest. The agents of owners -- the managers -- were able to subsume for themselves the authorities inherent in ownership. The historical record, then, is clear. The right to do what one likes with his property lies at the very foundation of our historical experience. This is a basis for management's growing concern with the restrictions and limitations which have increasingly come to characterize an arena where the widest scope for individual initiative previously prevailed."
"Fred Harvey, president of Harvey's Department Store in Nashville, says that when his store desegregated its lunch counters in 1960, only 13 charge accounts were closed out of 60,000. "The greatest surprise I ever had was the apparent so-what' attitude of white customers," says Mr. Harvey."
"Even where business losses occur, they usually are only temporary. At the 120-room Peachtree Manor Hotel in Atlanta, owner Irving H. Goldstein says his business dropped off 15% when the hotel desegregated a year ago. 'But now we are only slightly behind a year ago, and we can see we are beginning to recapture the business we initially lost,' declares Mr. Goldstein."
"William F. Davoren, owner of the Brownie Drug Co. in Huntsville, Ala., reports that, though his business fell a bit for several weeks after lunch counters were desegregated, he's now picked up all that he lost. Says he: 'I could name a dozen people who regarded it as a personal affront when I started serving Negroes, but have come back as if nothing had happened.'"
"Even a segregation-minded businessman in Huntsville agrees that white customers frequently have short memories when it comes to the race question. W. T. Hutchens, general manager of three Walgreen stores there, says he held out when most lunch counter operators gave in to sit-in pressures last July. In one shopping center where his competition desegregated, Mr. Hutchens says his business shot up sharply, and the store's lunch counter volume registered a 12% gain for the year. However, this year, business has dropped back to pre-integration levels 'because a lot of people have forgotten' the defiant role his stores played during the sit-ins, he adds."
"Some Southern businessmen who have desegregated say they have picked up extra business as a result of the move."
"At Raleigh, N.C., where Gino's Restaurant was desegregated this year, owner Jack Griffiths reports only eight whites have walked out after learning the establishment served Negroes, and he says, 'we're getting plenty of customers to replace the hard-headed ones.'"
"In Dallas, integration of hotels and restaurants has 'opened up an entirely new area of convention prospects,' according to Ray Bennison, convention manager of the Chamber of Commerce. 'This year we've probably added $8 million to $10 million of future bookings because we're integrated,' Mr. Bennison says."
Wall Street Journal, July 15, 1963, pp. 1, 12.
As recently stated by John Perry:
"The manager has become accustomed to seeing well dressed Negroes in good restaurants, on planes and trains, in church, in hotel lobbies at United Fund meetings, on television at his university club. Only a few years ago, if he met a Negro at some civic or political meeting, he understood that the man was there because he was a Negro; he was a kind of exhibit. Today it is much more likely that the Negro is there because of his position or profession. It makes a difference that everyone feels."
"The manager is aware that companies other than his are changing. He sees it happening. He reads about it. It is talked about, usually off the record and informally at business gatherings. So, in due course, questions are shaped in his mind: 'How can we keep in step? How can we change without making a big deal of it? Can we do it without a lot of uproar?'"
Business-Next Target for Integration, March-April, 1963, Harvard Business Rev., pp. 104, 111.
The New York Times stated the idea editorially in an analogous situation on October 31, 1963. P. 32:
"When it comes to speaking out on business matters, Roger Blough, chairman of the United States Steel Corporation, does not mince words."
"Mr. Blough is a firm believer in freedom of action for corporate management, a position he made clear in his battle with the Administration last year. But he also has put some severe limits on the exercise of corporate responsibility, for he rejects the suggestion that U.S. Steel, the biggest employer in Birmingham, Ala., should use its economic influence to erase racial tensions. Mr. Blough feels that U.S. Steel has fulfilled its responsibilities by following a nondiscriminatory hiring policy in Birmingham, and looks upon any other measures as both 'repugnant' and 'quite beyond what a corporation should do' to improve conditions."
"This hands-off strategy surely underestimates the potential influence of a corporation as big as U.S. Steel, particularly at the local level. It could, without affecting its profit margins adversely or getting itself directly involved in politics, actively work with those groups in Birmingham trying to better race relations. Steel is not sold on the retail level, so U.S. Steel has not been faced with the economic pressure used against the branches of national chain stores."
"Many corporations have belatedly recognized that it is in their own self-interest to promote an improvement in Negro opportunities. As one of the nation's biggest corporations, U.S. Steel and its shareholders have as great a stake in eliminating the economic imbalances associated with racial discrimination as any company. Corporate responsibility is not easy to define or to measure, but, in refusing to take a stand in Birmingham, Mr. Blough appears to have a rather narrow, limited concept of his influence."
|378 U.S. 226app2|
APPENDIX II TO OPINION OF MR. JUSTICE DOUGLAS
A. In Green v. Virginia, 378 U. S. 550, the purpose or reason for not serving Negroes was ruled to be immaterial to the issues in the case.
B. In the following cases, the testimony of corporate officers shows that the reason was either a commercial one or, which amounts to the same thing, that service to Negroes was not in accord with local custom:
1. Bouie v. City of Columbia, 378 U. S. 347.
Dr. Guy Malone, the manager of the Columbia branch of Eckerd Drugs of Florida, Inc., testified:
"Q. Mr. Malone, is the public generally invited to do business with Eckerd's?"
"A. Yes, I would say so."
"Q. Does that mean all of the public of all races?"
"A. Yes."
"Q. Are Negroes welcome to do business with Eckerd's?"
"A. Yes."
"Q. Are Negroes welcome to do business at the lunch counter at Eckerd's?"
"A. Well, we have never served Negroes at the lunch counter department."
"Q. According to the present policy of Eckerd's, the lunch counter is closed to members of the Negro public?"
"A. I would say yes. "
"Q. And all other departments of Eckerd's are open to members of the Negro public, as well as to other members of the public generally?"
"A. Yes."
"Q. Mr. Malone, on the occasion of the arrest of these young men, what were they doing in your store, if you know?"
"A. Well, it was four of them came in. Two of them went back and sat down at the first booth and started reading books, and they sat there for about fifteen minutes. Of course, we had had a group about a week prior to that, of about fifty, who came into the store."
"Mr. Perry: Your Honor, I ask, of course, that the prior incident be stricken from the record. That is not responsive to the question which has been asked, and is not pertinent to the matter of the guilt or innocence of these young men."
"The Court: All right, strike it."
"Mr. Sholenberger: Your Honor, this is their own witness."
"Mr. Perry: We announced at the outset that Mr. Malone would, in a sense, be a hostile witness."
"* * * *"
"Q. And so, when a person comes into Eckerd's and seats himself at a place where food is ordinarily served, what is the practice of your employees in that regard?"
"A. Well, it's to take their order."
"Q. Did anyone seek to take the orders of these young men?"
"A. No, they did not."
"Q. Why did they not do so?"
"A. Because we didn't want to serve them."
"Q. Why did you not want to serve them?"
"A. I don't think I have to answer that."
"Q. Did you refuse to serve them because they were Negroes? "
"A. No."
"Q. You did say, however, that Eckerd's has the policy of not serving Negroes in the lunch counter section?"
"A. I would say that all stores do the same thing."
"Q. We're speaking specifically of Eckerd's?"
"A. Yes."
"Q. Did you or any or your employees, Mr. Malone, approach these defendants and take their order for food?"
"A. No."
2. Robinson v. Florida, 378 U. S. 153.
A Vice President of Shell's City, Inc., testified:
"Q. Why did you refuse to serve these defendants?"
"A. Because I feel, definitely, it is very detrimental to our business to do so."
"Q. What do you mean 'detrimental'?"
"A. Detrimental because it would mean a loss of business to us to serve mixed groups."
Another Vice President of Shell's City, Inc., testified:
"Q. You have several departments in your store, do you not?"
"A. Yes. Nineteen, I believe. Maybe twenty."
"Q. Negroes are invited to participate and make purchases in eighteen of these departments?"
"A. Yes, sir."
"Q. Can you distinguish between your feeling that it is not detrimental to have them served in eighteen departments and it is detrimental to have them served in the nineteenth department, namely, the lunch counter?"
"A. Well, it goes back to what is the custom, that is, the tradition of what is basically observed in Dade County would be the bottom of it. We have --"
"* * * *"
"Q. Would you tell me what this custom is, that you are making reference to, that would prevent you from serving Negroes at your lunch counter? "
"A. I believe I already answered that, that it is the customs and traditions and practice in this county -- not only in this county, but in this part of the state and elsewhere, not to serve whites and colored people seated in the same restaurant. That's my answer."
"Q. Was that the sole reason, the sole basis, for your feeling that this was detrimental to your business?"
"A. Well, that is the foundation of it, yes, but we feel that, at this time, if we went into a thing of trying to break that barrier, we might have racial trouble, which we don't want. We have lots of good friends among colored people, and will have when this case is over."
"Q. Are you familiar with the fact that the Woolworth Stores in this community have eliminated this practice?"
"Mr. Goshgarian: To which the State objects. It is irrelevant and immaterial."
"The Court: The objection is sustained."
3. Fox v. North Carolina, 378 U. S. 587.
Mr. Claude M. Breeden, the manager of the McCrory branch in Raleigh, testified:
"I just don't serve colored. I don't have the facilities for serving colored. Explaining why I don't serve colored. I don't have the facilities for serving colored. I have the standard short order lunch, but I don't serve colored. I don't serve colored because I don't have the facilities for serving colored."
"COUNSEL FOR DEFENDANT: What facilities would be necessary for serving colored?"
"SOLICITOR FOR STATE: Objection."
"THE COURT: Sustained."
"WITNESS CONTINUES: It is not the policy of my store to discriminate and not serve Negroes. We have no policy against discrimination. I do not discriminate, and it is not the custom in the Raleigh Store to discriminate. I do not have the facilities for serving colored, and that is why I don't serve colored. "
4. Mitchell v. City of Charleston, 378 U. S. 551.
Mr. Albert C. Watts, the manager of the S. H. Kress & Co. outlet in Charleston, testified:
"Q. . . . What type of business is Kress'?"
"A. Five and Ten Cent variety store."
"Q. Could you tell us briefly something about what commodities it sells -- does it sell just about every type of commodity that one might find in this type establishment?"
"A. Strictly variety store merchandise -- no appliances or anything like that."
"Q. I see. Kress, I believe it invites members of the public generally into its premises to do business, does it not?"
"A. Yes."
"Q. It invites Negroes in to do business, also?"
"A. Right."
"Q. Are Negroes served in all of the departments of Kress' except your lunch counter?"
"A. We observe local custom."
"Q. In Charleston, South Carolina, the store that you manage, sir, does Kress' serve Negroes at the lunch counter?"
"A. No. It is not a local custom."
"Q. To your knowledge, does the other like businesses serve Negroes at their lunch counters? What might happen at Woolworth's or some of the others?"
"A. They observe local custom -- I say they wouldn't."
"Q. Then you know of your own knowledge that they do not serve Negroes? Are you speaking of other business such as your business?"
"A. I can only speak in our field, yes."
"Q. In your field, so that the other stores in your field do not serve Negroes at their lunch counters?"
"A. Yes, sir. "
5. Hamm v. City of Rock Hill, 377 U.S. 988.
Mr. H. C. Whiteaker, the manager of McCrory's in Rock Hill, testified:
"Q. All right. Now, how many departments do you have in your store?"
"A. Around twenty."
"Q. Around twenty departments?"
"A. Yes, sir."
"Q. All right, sir, is one of these departments considered a lunch counter or establishment where food is served?"
"A. Yes, sir. That is a separate department."
"* * * *"
"Q. Now, I believe, is it true that you invite members of the public to come into your store?"
"A. Yes, it is for the public."
"Q. And is it true, too, that the public to you means everybody, various races, religions, nationalities?"
"A. Yes, sir."
"Q. The policy of your store as manager is not to exclude anybody from coming in and buying these three thousand items on account of race, nationality or religion, is that right?"
"A. The only place where there has been exception, where there is an exception, is at our lunch counter."
"Q. Oh, I see. Is that a written policy you get from headquarters in New York?"
"A. No, sir."
"Q. It is not. You don't have any memorandum in your store that says that is a policy?"
"A. No, sir."
"* * * *"
"Q. Is it true, then, that if, that well, even if a man was quiet enough, and a Communist, that he could sit at your lunch counter and eat, according to the policy of your store right now? Whether you knew he was a Communist
or not, so his political beliefs would not have anything to do with it, is that right?"
"A. No."
"Q. Now, sir, you said that there was a policy there as to Negroes sitting. Am I to understand that you do serve Negroes or Americans who are Negroes, standing up?"
"A. To take out at the end of the counter, we serve take-outs, yes, sir."
"Q. In other words, you have a lunch counter at the end of your store?"
"A. No, I said at the end, they can wait and get a package or a meal or order a coke or hamburger and take it out."
"Q. Oh, to take out. They don't normally eat it on the premises?"
"A. They might, but usually it is to take out."
"* * * *"
"Q. Of course, you probably have some Negro employees in your store, in some capacity, don't you?"
"A. Yes, sir."
"Q. They eat on the premises, is that right?"
"A. Yes, sir."
"Q. But not at the lunch counter?"
"A. No, sir."
"* * * *"
"Q. Oh, I see, but generally speaking, you consider the American Negro as part of the general public, is that right, just generally speaking?"
"A. Yes, sir."
"Q. You don't have any objections for him spending any amount of money he wants to on these 3,000 items, do you?"
"A. That's up to him to spend if he wants to spend."
"Q. This is a custom, as I understand it, this is a custom, instead of a law, that causes you not to want him to ask for service at the lunch counter? "
"A. There is no law to my knowledge; it is merely a custom in this community."
C. The testimony in the following cases is less definitive with respect to why Negroes were refused service.
In Griffin v. Maryland, 378 U. S. 130, the president of the corporations which own and operate Glen Echo Amusement Park said he would admit Chinese, Filipinos, Indians and, generally, anyone but Negroes. He did not elaborate, beyond stating that a private property owner has the right to make such a choice.
In Barr v. City of Columbia, 378 U. S. 146, the co-owner and manager of the Taylor Street Pharmacy said Negroes could purchase in other departments of his store, and that, whether for business or personal reasons, he felt he had a right to refuse service to anyone.
In Williams v. North Carolina, 378 U. S. 548, the president of Jones Drug Company said Negroes were not permitted to take seats at the lunch counter. He did say, however, that Negroes could purchase food and eat it on the premises so long as they stood some distance from the lunch counter, such as near the back door.
In Lupper v. Arkansas, 377 U.S. 989, and Harris v. Virginia, 378 U. S. 552, the record discloses only that the establishment did not serve Negroes.
|378 U.S. 226app3|
APPENDIX III TO OPINION OF MR. JUSTICE DOUGLAS
Corporate 378 U. S. Reference (other than the record in each case): Moody's Industrial Manual (1963 ed.).
1. Gus Blass & Co. Department Store.
Case: Lupper v. Arkansas, 377 U.S. 989.
Location: Little Rock, Arkansas.
Ownership: Privately owned corporation.
2. Eckerd Drugs of Florida, Inc.
Case: Bouie v. City of Columbia, 378 U. S. 347.
Location: 17 retail drugstores throughout Southern States.
Ownership: Publicly owned corporation.
Number of shareholders: 1,000.
Stock traded: Over-the-counter market.
3. George's Drug Stores, Inc.
Case: Harris v. Virginia, 378 U. S. 552.
Location: Hopewell, Virginia.
Ownership: Privately owned corporation.
4. Gwynn Oak Park, Inc.
Case: Drews v. Maryland, 378 U. S. 547.
Location: Baltimore, Maryland.
Ownership: Privately owned corporation.
5. Hooper Food Company, Inc.
Case: Bell v. Maryland, 378 U. S. 226.
Location: Several restaurants in Baltimore, Maryland.
Ownership: Privately owned corporation.
6. Howard Johnson Co.
Case: Henry v. Virginia, 374 U. S. 98.
Location: 650 restaurants in 25 States.
Ownership: Publicly owned corporation.
Number of shareholders: 15,203.
Stock traded: New York Stock Exchange.
7. Jones Drug Company, Inc.
Case: Williams v. North Carolina, 378 U. S. 548.
Location: Monroe, North Carolina.
Ownership: Privately owned corporation.
8. Kebar, Inc. (lessee from Rakad, Inc.).
Case: Griffin v. Maryland, 378 U. S. 130.
Location: Glen Echo Amusement Park, Maryland.
Ownership: Privately owned corporation.
9. S. H. Kress & Company.
Cases: Mitchell v. City of Charleston, 378 U. S. 551;
Avent v. North Carolina, 373 U. S. 375; Gober v. City
of Birmingham, 373 U. S. 374; Peterson v. City of
Greenville, 373 U. S. 244.
Location: 272 stores in 30 States.
Ownership: Publicly owned corporation.
Number of shareholders: 8,767.
Stock traded: New York Stock Exchange.
10. Loveman's Department Store (food concession operated by
Price Candy Company of Kansas City).
Case: Gober v. City of Birmingham, supra.
Location: Birmingham, Alabama.
Ownership: Privately owned corporation.
11. McCrory Corporation.
Cases: Fox v. North Carolina, 378 U. S. 587; Hamm v.
City of Rock Hill, 377 U.S. 988; Lombard v. Louisiana,
Location: 1,307 stores throughout the United States.
Ownership: Publicly owned corporation.
Number of shareholders: 24,117.
Stock traded: New York Stock Exchange.
12. National White Tower System, Incorporated.
Case: Green v. Virginia, 378 U. S. 550.
Location: Richmond, Virginia, and other cities (number
unknown).
Ownership: Apparently a privately owned corporation.
13. J. J. Newberry Co.
Case: Gober v. City of Birmingham, supra.
Location: 567 variety stores in 46 States; soda fountains,
lunch bars, cafeterias and restaurants in 371 stores.
Ownership: Publicly owned corporation.
Number of shareholders: 7,909.
Stock traded: New York Stock Exchange.
14. Patterson Drug Co.
Cases: Thompson v. Virginia, 374 U. S. 99; Wood v.
Virginia, 374 U. S. 100.
Location: Lynchburg, Virginia.
Ownership: Privately owned corporation.
15. Pizitz's Department Store.
Case: Gober v. City of Birmingham, supra.
Location: Birmingham, Alabama.
Ownership: Privately owned corporation.
16. Shell's City, Inc.
Case: Robinson v. Florida, 378 U. S. 153.
Location: Miami, Florida.
Ownership: Privately owned corporation.
17. Thalhimer Bros., Inc., Department Store.
Case: Randolph v. Virginia, 374 U. S. 97.
Location: Richmond, Virginia.
Ownership: Privately owned corporation.
18. F. W. Woolworth Company.
Case: Gober v. City of Birmingham, supra.
Location: 2,130 stores (primarily variety stores)
throughout the United States.
Ownership: Publicly owned corporation.
Number of shareholders: 90,435.
Stock traded: New York Stock Exchange.
* The only "sit-in" cases not involving a corporation are Barr v. City of Columbia, 378 U. S. 146, and Daniels v. Virginia, 374 U. S. 500. In Barr, the business establishment was the Taylor Street Pharmacy, which apparently is a partnership; in Daniels, it was the 403 Restaurant in Alexandria, Virginia, an individual proprietorship.
|378 U.S. 226app4|
APPENDIX IV TO OPINION OF MR. JUSTICE DOUGLAS.
Legal form of organization -- by kind of business.
References: United States Census of Business, 1958, Vol. I.
Retail trade -- Summary Statistics (1961).
A. UNITED STATES.
Establishments Sales
Eating places: (number) ($1,000)
Total 229,238 $11,037,644
Individual proprietorships 166,003 5,202,308
Partnerships 37,756 2,062,830
Corporations 25,184 3,723,295
Cooperatives 231 13,359
Other legal forms 64 35,852
Drugstores with fountain:
Total 24,093 $ 3,535,637
Individual proprietorships 13,549 1,294,737