A restaurant located in a publicly owned and operated automobile
parking building refused to serve appellant food or drink solely
because he was a Negro. The building had been built with public
funds for public purposes, and it was owned and operated by an
agency of the State of Delaware, from which the private operator of
the restaurant leased its premises. Claiming that refusal to serve
him abridged his rights under the Equal Protection Clause of the
Fourteenth Amendment, appellant sued in a state court for
declaratory and injunctive relief against the restaurant and the
state agency. The Supreme Court of Delaware held that he was not
entitled to relief, on the ground that the restaurant's action was
not state action within the meaning of the Fourteenth Amendment and
that the restaurant was not required by a Delaware statute to serve
all persons entering its place of business. An appeal was taken to
this Court on the ground that the state statute had been construed
unconstitutionally.
Held:
1. The appeal is dismissed, since the judgment did not depend
for its ultimate support upon a determination of the constitutional
validity of the state statute; but, treating the papers whereon the
appeal was taken as a petition for writ of certiorari, certiorari
is granted, since the case presents an important constitutional
question under the Fourteenth Amendment. Pp.
365 U. S. 717,
365 U. S.
721.
2. In view of all the circumstances of this case, including the
facts that the restaurant was physically and financially an
integral part of a public building, built and maintained with
public funds, devoted to a public parking service, and owned and
operated by an agency of the State for public purposes, the State
was a joint participant in the operation of the restaurant, and its
refusal to serve appellant violated the Equal Protection Clause of
the Fourteenth Amendment. Pp.
365 U. S.
721-726.
3. When a State leases public property in the manner and for the
purpose shown to have been the case here, the proscriptions of
Page 365 U. S. 716
the Fourteenth Amendment must be complied with by the lessee as
certainly as though they were binding covenants written into the
agreement itself. P.
365 U. S.
726.
___ Del. ___,
157 A.2d
894, reversed.
MR. JUSTICE CLARK delivered the opinion of the Court.
In this action for declaratory and injunctive relief, it is
admitted that the Eagle Coffee Shoppe, Inc., a restaurant located
within an off-street automobile parking building in Wilmington,
Delaware, has refused to serve appellant food or drink solely
because he is a Negro. The parking building is owned and operated
by the Wilmington Parking Authority, an agency of the State of
Delaware, and the restaurant is the Authority's lessee. Appellant
claims that such refusal abridges his rights under the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution. The Supreme Court of Delaware has held that Eagle was
acting in "a purely private capacity" under its lease; that its
action was not that of the Authority, and was not, therefore, state
action within the contemplation of the prohibitions contained in
that Amendment. It also held that, under 24 Del.Code
Page 365 U. S. 717
§ 1501, [
Footnote 1] Eagle
was a restaurant, not an inn, and that, as such, it "is not
required [under Delaware law] to serve any and all persons entering
its place of business." ___ Del. ___,
157 A.2d
894, 902. On appeal here from the judgment as having been based
upon a statute construed unconstitutionally, we postponed
consideration of the question of jurisdiction under 28 U.S.C. §
1257(2), to the hearing on the merits. 364 U.S. 810. We agree with
the respondents that the appeal should be dismissed, and
accordingly the motion to dismiss is granted. However, since the
action of Eagle in excluding appellant raises an important
constitutional question, the papers whereon the appeal was taken
are treated as a petition for a writ of certiorari, 28 U.S.C. §
2103, and the writ is granted. 28 U.S.C. § 1257(3). On the merits,
we have concluded that the exclusion of appellant under the
circumstances shown to be present here was discriminatory state
action in violation of the Equal Protection Clause of the
Fourteenth Amendment.
The Authority was created by the City of Wilmington pursuant to
22 Del.Code, §§ 501-515. It is "a public body corporate and
politic, exercising public powers of the State as an agency
thereof." § 504. Its statutory purpose is to provide adequate
parking facilities for the convenience of the public, and thereby
relieve the "parking crisis, which threatens the welfare of the
community. . . ." § 501(7), (8) and (9). To this end, the
Page 365 U. S. 718
Authority is granted wide powers including that of constructing
or acquiring by lease, purchase or condemnation, lands and
facilities, and that of leasing
"portions of any of its garage buildings or structures for
commercial uses by the lessee where, in the opinion of the
Authority, such leasing is necessary and feasible for the financing
and operation of such facilities."
§ 504(a). The Act provides that the rates and charges for its
facilities must be reasonable, and are to be determined exclusively
by the Authority
"for the purposes of providing for the payment of the expenses
of the Authority, the construction, improvement, repair,
maintenance, and operation of its facilities and properties, the
payment of the principal of and interest on its obligations, and to
fulfill the terms and provisions of any agreements made with the
purchasers or holders of any such obligations or with the
city."
§ 504(b)(8). The Authority has no power to pledge the credit of
the State of Delaware, but may issue its own revenue bonds, which
are tax exempt. Any and all property owned or used by the Authority
is likewise exempt from state taxation.
The first project undertaken by the Authority was the erection
of a parking facility on Ninth Street in downtown Wilmington. The
tract consisted of four parcels, all of which were acquired by
negotiated purchases from private owners. Three were paid for in
cash, borrowed from Equitable Security Trust Company, and the
fourth, purchased from Diamond Ice and Coal Company, was paid
for
"partly in Revenue Bonds of the Authority and partly in cash
($934,000) donated by the City of Wilmington, pursuant to 22 Del.C.
c. 5. . . . Subsequently, the City of Wilmington gave the Authority
$1,822,827.69, which sum the Authority applied to the redemption of
the Revenue Bonds delivered to Diamond Ice & Coal Co. and to
the repayment of the Equitable Security Trust Company loan. "
Page 365 U. S. 719
Before it began actual construction of the facility, the
Authority was advised by its retained experts that the anticipated
revenue from the parking of cars and proceeds from sale of its
bonds would not be sufficient to finance the construction costs of
the facility. Moreover, the bonds were not expected to be
marketable if payable solely out of parking revenues. To secure
additional capital needed for its "debt-service" requirements, and
thereby to make bond financing practicable, the Authority decided
it was necessary to enter long-term leases with responsible tenants
for commercial use of some of the space available in the projected
"garage building." The public was invited to bid for these
leases.
In April, 1957, such a private lease, for 20 years and renewable
for another 10 years, was made with Eagle Coffee Shoppe, Inc., for
use as a "restaurant, dining room, banquet hall, cocktail lounge
and bar, and for no other use and purpose." The multi-level space
of the building which was let to Eagle, although
"within the exterior walls of the structure, has no marked
public entrance leading from the parking portion of the facility
into the restaurant proper . . . , [whose main entrance] is located
on Ninth Street."
157 A.2d at 899. In its lease, the Authority covenanted to
complete construction expeditiously, including completion of "the
decorative finishing of the leased premises and utilities therefor,
without cost to Lessee," including necessary utility connections,
toilets, hung acoustical tile and plaster ceilings; vinyl asbestos,
ceramic tile and concrete floors; connecting stairs and wrought
iron railings; and wood-floored show windows. Eagle spent some
$220,000 to make the space suitable for its operation and, to the
extent such improvements were so attached to realty as to become
part thereof, Eagle to the same extent enjoys the Authority's tax
exemption.
Page 365 U. S. 720
The Authority further agreed to furnish heat for Eagle's
premises, gas service for the boiler room, and to make, at its own
expense, all necessary structural repairs, all repairs to exterior
surfaces except store fronts and any repairs caused by lessee's own
act or neglect. The Authority retained the right to place any
directional signs on the exterior to the let space which would not
interfere with or obscure Eagle's display signs. Agreeing to pay an
annual rental of $28,700, Eagle covenanted to
"occupy and use the leased premises in accordance with all
applicable laws, statutes, ordinances and rules and regulations of
any federal, state or municipal authority."
Its lease, however, contains no requirement that its restaurant
services be made available to the general public on a
nondiscriminatory basis, in spite of the fact that the Authority
has power to adopt rules and regulations respecting the use of its
facilities except any as would impair the security of its
bondholders. § 511.
Other portions of the structure were leased to other tenants,
including a bookstore, a retail jeweler, and a food store. Upon
completion of the building, the Authority located at appropriate
places thereon official signs indicating the public character of
the building, the flew from mastheads on the roof both the state
and national flags.
In August, 1958, appellant parked his car in the building and
walked around to enter the restaurant by its front door on Ninth
Street. Having entered and sought service, he was refused it.
Thereafter, he filed this declaratory judgment action in the Court
of Chancery. On motions for summary judgment, based on the
pleadings and affidavits, the Chancellor concluded, contrary to the
contentions of respondents, that whether in fact the lease was a
"device" or was executed in good faith, it would not "serve to
insulate the public authority from the force and effect of the
Fourteenth Amendment." 150 A.2d 197, 198. He found it not
necessary, therefore, to pass upon
Page 365 U. S. 721
the rights of private restaurateurs under state common and
statutory law, including 24 Del.Code § 1501. The Supreme Court of
Delaware reversed, as we mentioned above, holding that Eagle, "in
the conduct of its business, is acting in a purely private
capacity." It therefore denied appellant's claim under the
Fourteenth Amendment. Upon reaching the application of state law,
it held, contrary to appellant's assertion that Eagle maintained an
inn, that Eagle's operation was "primarily a restaurant and thus
subject to the provisions of 24 Del.C. § 1501, which does not
compel the operator of a restaurant to give service of all persons
seeking such." 157 A.2d at 902. Delaware's highest court has thus
denied the equal protection claim of the appellant, as well as his
state law contention concerning the applicability of § 1501.
On the jurisdictional question, we agree that the judgment of
Delaware's court does not depend for its ultimate support upon a
determination of the constitutional validity of a state statute,
but rather upon the holding that, on the facts, Eagle's racially
discriminatory action was exercised in "a purely private capacity,"
and that it was, therefore, beyond the prohibitive scope of the
Fourteenth Amendment.
The
Civil Rights Cases, 109 U. S.
3 (1883), "embedded in our constitutional law" the
principle
"that the action inhibited by the first section [Equal
Protection Clause] of the Fourteenth Amendment is only such action
as may fairly be said to be that of the States. That Amendment
erects no shield against merely private conduct, however
discriminatory or wrongful."
Chief Justice Vinson, in
Shelley v. Kraemer,
334 U. S. 1,
334 U. S. 13
(1948). It was language in the opinion in the
Civil Rights
Cases, supra, that phrased the broad test of state
responsibility under the Fourteenth Amendment, predicting its
consequence upon "state action of every kind . . . which denies . .
.
Page 365 U. S. 722
the equal protection of the laws." At p.
109 U. S. 11. And
only two Terms ago, some 75 years later, the same concept of state
responsibility was interpreted as necessarily following upon "state
participation through any arrangement, management, funds or
property."
Cooper v. Aaron, 358 U. S.
1,
358 U. S. 4
(1958). It is clear, as it always has been since the
Civil
Rights Cases, supra, that "Individual invasion of individual
rights is not the subject matter of the amendment," 109 U.S. at
109 U. S. 11, and
that private conduct abridging individual rights does no violence
to the Equal Protection Clause unless, to some significant extent,
the State, in any of its manifestations, has been found to have
become involved in it. Because the virtue of the right to equal
protection of the laws could lie only in the breadth of its
application, its constitutional assurance was reserved in terms
whose imprecision was necessary if the right were to be enjoyed in
the variety of individual-state relationships which the Amendment
was designed to embrace. For the same reason, to fashion and apply
a precise formula for recognition of state responsibility under the
Equal Protection Clause is an "impossible task" which "This Court
has never attempted."
Kotch v. Board of River Port Pilot
Comm'rs, 330 U. S. 552,
330 U. S. 556.
Only by sifting facts and weighing circumstances can the nonobvious
involvement of the State in private conduct be attributed its true
significance.
The trial court's disposal of the issues on summary judgment has
resulted in a rather incomplete record, but the opinion of the
Supreme Court, as well as that of the Chancellor, presents the
facts in sufficient detail for us to determine the degree of state
participation in Eagle's refusal to serve petitioner. In this
connection, the Delaware Supreme Court seems to have placed
controlling emphasis on its conclusion, as to the accuracy of which
there is doubt, that only some 15% of the total cost of the
facility was "advanced" from public funds; that
Page 365 U. S. 723
the cost of the entire facility was allocated three-fifths to
the space for commercial leasing and two-fifths to parking space;
that anticipated revenue from parking was only some 30.5% of the
total income, the balance of which was expected to be earned by the
leasing; that the Authority had no original intent to place a
restaurant in the building, it being only a happenstance resulting
from the bidding; that Eagle expended considerable moneys on
furnishings; that the restaurant's main and marked public entrance
is on Ninth Street, without any public entrance direct from the
parking area; and that
"the only connection Eagle has with the public facility . . . is
the furnishing of the sum of $28,700 annually in the form of rent
which is used by the Authority to defray a portion of the operating
expense of an otherwise unprofitable enterprise."
157 A.2d
894, 901. While these factual considerations are indeed validly
accountable aspects of the enterprise upon which the State has
embarked, we cannot say that they lead inescapably to the
conclusion that state action is not present. Their persuasiveness
is diminished when evaluated in the context of other factors which
must be acknowledged.
The land and building were publicly owned. As an entity, the
building was dedicated to "public uses" in performance of the
Authority's "essential governmental functions." 22 Del.Code, §§
501, 514. The costs of land acquisition, construction, and
maintenance are defrayed entirely from donations by the City of
Wilmington, from loans and revenue bonds, and from the proceeds of
rentals and parking services out of which the loans and bonds were
payable. Assuming that the distinction would be significant,
cf. Derrington v. Plummer, 240 F.2d 922, 925, the
commercially leased areas were not surplus state property, but
constituted a physically and financially integral and, indeed,
indispensable part of the State's
Page 365 U. S. 724
plan to operate its project as a self-sustaining unit. Upkeep
and maintenance of the building, including necessary repairs, were
responsibilities of the Authority, and were payable out of public
funds. It cannot be doubted that the peculiar relationship of the
restaurant to the parking facility in which it is located confers
on each an incidental variety of mutual benefits. Guests of the
restaurant are afforded a convenient place to park their
automobiles, even if they cannot enter the restaurant directly from
the parking area. Similarly, its convenience for diners may well
provide additional demand for the Authority's parking facilities.
Should any improvements effected in the leasehold by Eagle become
part of the realty, there is no possibility of increased taxes'
being passed on to it, since the fee is held by a tax-exempt
government agency. Neither can it be ignored, especially in view of
Eagle's affirmative allegation that for it to serve Negroes would
injure its business, that profits earned by discrimination not only
contribute to, but also are indispensable elements in, the
financial success of a governmental agency.
Addition of all these activities, obligations and
responsibilities of the Authority, the benefits mutually conferred,
together with the obvious fact that the restaurant is operated as
an integral part of a public building devoted to a public parking
service, indicates that degree of state participation and
involvement in discriminatory action which it was the design of the
Fourteenth Amendment to condemn. It is irony amounting to grave
injustice that, in one part of a single building, erected and
maintained with public funds by an agency of the State to serve a
public purpose, all persons have equal rights, while in another
portion, also serving the public, a Negro is a second-class
citizen, offensive because of his race, without rights and
unentitled to service, but at the same time fully enjoys equal
access to nearby restaurants in wholly
Page 365 U. S. 725
privately owned buildings. As the Chancellor pointed out, in its
lease with Eagle, the Authority could have affirmatively required
Eagle to discharge the responsibilities under the Fourteenth
Amendment imposed upon the private enterprise as a consequence of
state participation. But no State may effectively abdicate its
responsibilities by either ignoring them or by merely failing to
discharge them whatever the motive may be. It is of no consolation
to an individual denied the equal protection of the laws that it
was done in good faith. Certainly, the conclusions drawn in similar
cases by the various Courts of Appeals do not depend upon such a
distinction. [
Footnote 2] By
its inaction, the Authority, and through it the State, has not only
made itself a party to the refusal of service, but has elected to
place its power, property and prestige behind the admitted
discrimination. The State has so far insinuated itself into a
position of interdependence with Eagle that it must be recognized
as a joint participant in the challenged activity, which, on that
account, cannot be considered to have been so "purely private" as
to fall without the scope of the Fourteenth Amendment.
Because readily applicable formulae may not be fashioned, the
conclusions drawn from the facts and circumstances of this record
are by no means declared as universal truths on the basis of which
every state leasing agreement is to be tested. Owing to the very
"largeness"
Page 365 U. S. 726
of government, a multitude of relationships might appear to some
to fall within the Amendment's embrace, but that, it must be
remembered, can be determined only in the framework of the peculiar
facts or circumstances present. Therefore, respondents' prophecy of
nigh universal application of a constitutional precept so
peculiarly dependent for its invocation upon appropriate facts
fails to take into account "Differences in circumstances [which]
beget appropriate differences in law,"
Whitney v. State Tax
Comm'n, 309 U. S. 530,
309 U. S. 542.
Specifically defining the limits of our inquiry, what we hold today
is that, when a State leases public property in the manner and for
the purpose shown to have been the case here, the proscriptions of
the Fourteenth Amendment must be complied with by the lessee as
certainly as though they were binding covenants written into the
agreement itself.
The judgment of the Supreme Court of Delaware is reversed, and
the cause remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
[
Footnote 1]
The statute provides that:
"No keeper of an inn, tavern, hotel, or restaurant, or other
place of public entertainment or refreshment of travelers, guests,
or customers shall be obliged, by law, to furnish entertainment or
refreshment to persons whose reception or entertainment by him
would be offensive to the major part of his customers, and would
injure his business. As used in this section, 'customer' includes
all who have occasion for entertainment or refreshment."
[
Footnote 2]
See Aaron v. Cooper, 261 F.2d 97;
City of
Greensboro v. Simkins, 246 F.2d 425,
affirming 149 F.
Supp. 562;
Derrington v. Plummer, 240 F.2d 922;
Coke v. City of Atlanta, 184 F.
Supp. 579;
Jones v. Marva Theatres, 180 F. Supp.
49;
Tate v. Department of Conservation, 133 F. Supp.
53,
affirmed, 231 F.2d 615;
Nash v. Air Terminal
Services, 85 F. Supp.
545;
Lawrence v. Hancock, 76 F.
Supp. 1004,
and see Muir v. Louisville Park Theatrical
Ass'n, 347 U.S. 971,
vacating and remanding 202 F.2d
275.
MR. JUSTICE STEWART, concurring.
I agree that the judgment must be reversed, but I reach that
conclusion by a route much more direct than the one traveled by the
Court. In upholding Eagle's right to deny service to the appellant
solely because of his race, the Supreme Court of Delaware relied
upon a statute of that State which permits the proprietor of a
restaurant to refuse to serve "persons whose reception or
entertainment by him would be offensive to the major part of his
customers. . . ."
* There is no
suggestion in the record that the appellant as an individual was
such a person. The highest court of Delaware has thus construed
this
Page 365 U. S. 727
legislative enactment as authorizing discriminatory
classification based exclusively on color. Such a law seems to me
clearly violative of the Fourteenth Amendment. I think, therefore,
that the appeal was properly taken, and that the statute, as
authoritatively construed by the Supreme Court of Delaware, is
constitutionally invalid.
* 24 Del.Code § 1501. The complete text of the statute is set
out in the Court opinion at note 1.
MR. JUSTICE FRANKFURTER, dissenting.
According to my brother STEWART, the Supreme Court of Delaware
has held that one of its statutes, 24 Del.Code § 1501, sanctions a
restaurateur denying service to a person solely because of his
color. If my brother is correct in so reading the decision of the
Delaware Supreme Court, his conclusion inevitably follows. For a
State to place its authority behind discriminatory treatment based
solely on color is indubitably a denial by a State of the equal
protection of the laws, in violation of the Fourteenth Amendment.
Mr. brother HARLAN also would find the claim of invalidity of the
statute decisive if he could read the state court's construction of
it as our brother STEWART reads it. But, for him, the state court's
view of its statute is so ambiguous that he deems it necessary to
secure a clarification from the state court of how in fact it did
construe the statute.
I certainly do not find the clarity that my brother STEWART
finds in the views expressed by the Supreme Court of Delaware
regarding 24 Del.Code, § 1501. If I were forced to construe that
court's construction, I should find the balance of considerations
leading to the opposite conclusion from his, namely, that it was
merely declaratory of the common law, and did not give state
sanction to refusing service to a person merely because he is
colored. The Court takes no position regarding the statutory
meaning which divides my brothers HARLAN and STEWART. Clearly it
does not take Mr. Justice STEWART's view of what the Supreme Court
of Delaware decided.
Page 365 U. S. 728
If it did, it would undoubtedly take his easy route to decision,
and not reach the same result by its much more circuitous
route.
Since the pronouncement of the Supreme Court of Delaware thus
lends itself to three views, none of which is patently irrational,
why is not my brother HARLAN's suggestion for solving this conflict
the most appropriate solution? Were we to be duly advised by the
Supreme Court of Delaware that MR. JUSTICE STEWART is correct in
his reading of what it said, there would be an easy end to our
problem. There would be no need for resolving the problems in
state-federal relations with which the Court's opinion deals. If,
on the other hand, the Delaware court did not mean to give such an
invalidating construction to its statute, we would be confronted
with the problems which the Court now entertains for decision
unembarrassed by disregard of a simpler issue. This would involve
some delay in adjudication. But the time would be well spent,
because the Court would not be deciding serious questions of
constitutional law any earlier than due regard for the appropriate
process of constitutional adjudication requires.
Accordingly, I join in MR. JUSTICE HARLAN's proposed disposition
of the case without intimating any view regarding the question,
prematurely considered by the Court, as to what constitutes state
action.
MR. JUSTICE HARLAN, whom MR. JUSTICE WHITTAKER joins,
dissenting.
The Court's opinion, by a process of first undiscriminatingly
throwing together various factual bits and pieces and then
undermining the resulting structure by an equally vague disclaimer,
seems to me to leave completely at sea just what it is in this
record that satisfies the requirement of "state action."
Page 365 U. S. 729
I find it unnecessary, however, to inquire into the matter at
this stage, for it seems to me apparent that, before passing on the
far-reaching constitutional questions that may or may not be
lurking in this judgment, the case should first be sent back to the
state court for clarification as to the precise basis of its
decision. In deciding this case, the Delaware Supreme Court, among
other things, said:
"It [Eagle] acts as a restaurant keeper and, as such, is not
required to serve any and all persons entering its place of
business, any more than the operator of a bookstore, barber shop,
or other retail business is required to sell its product to every
one. This is the common law, and the law of Delaware as restated in
24 Del.C. § 1501 with respect to restaurant keepers. 10 Am.Jur.,
Civil Rights, §§ 21, 22; 52 Am.Jur., Theatres, § 9;
Williams v.
Howard Johnson's Restaurant, 268 F.2d 845. We, accordingly,
hold that the operation of its restaurant by Eagle does not fall
within the scope of the prohibitions of the Fourteenth
Amendment.*"
___ Del. ___,
157 A.2d
894, 902.
If in the context of this record, this means, as my Brother
STEWART suggests, that the Delaware court construed this state
statute "as authorizing discriminatory classification based
exclusively on color," I would certainly agree, without more, that
the enactment is offensive to the Fourteenth Amendment. It would
then be quite
Page 365 U. S. 730
unnecessary to reach the much broader questions dealt with in
the Court's opinion. If, on the other hand, the state court meant
no more than that under the statute, as at common law, Eagle was
free to serve only those whom it pleased, then, and only then,
would the question of "state action" be presented in full-blown
form.
I think that sound principles of constitutional adjudication
dictate that we should first ascertain the exact basis of this
state judgment, and, for that purpose, I would either remand the
case to the Delaware Supreme Court,
see Musser v. Utah,
333 U. S. 95;
cf. Harrison v. NAACP, 360 U. S. 167, or
hold the case pending application to the state court for
clarification.
See Herb v. Pitcairn, 324 U.
S. 117. It seems to me both unnecessary and unwise to
reach issues of such broad constitutional significance as those now
decided by the Court, before the necessity for deciding them has
become apparent.
* 24 Del.Code, § 1501, reads as follows:
"No keeper of an inn, tavern, hotel, or restaurant, or other
place of public entertainment or refreshment of travelers, guests,
or customers shall be obliged, by law, to furnish entertainment or
refreshment to persons whose reception or entertainment by him
would be offensive to the major part of his customers, and would
injure his business."