For refusing to leave the section reserved for white people in a
restaurant in a bus terminal, petitioner, a Negro interstate bus
passenger, was convicted in Virginia courts of violating a state
statute making it a misdemeanor for any person "without authority
of law" to remain upon the premises of another after having been
forbidden to do so. On appeal, he contended that his conviction
violated the Interstate Commerce Act and the Equal Protection, Due
Process and Commerce Clauses of the Federal Constitution; but his
conviction was sustained by the State Supreme Court. On petition
for certiorari to this Court, he raised only the constitutional
questions.
Held:
1. Notwithstanding the fact that the petition for certiorari
presented only the constitutional questions this Court will
consider the statutory issue, which involves essentially the same
problem -- racial discrimination in interstate commerce. P.
364 U. S.
457.
2. Under § 216(d) of the Interstate Commerce Act, which forbids
any interstate common carrier by motor vehicle to subject any
person to unjust discrimination, petitioner had a federal right to
remain in the white portion of the restaurant, he was there "under
authority of law," and it was error to affirm his conviction. Pp.
364 U. S.
457-463.
(a) When a bus carrier has volunteered to make terminal and
restaurant facilities and services available to its interstate
passengers as a regular part of their transportation, and the
terminal and restaurant have acquiesced and cooperated in this
undertaking, the terminal and restaurant must perform these
services without discriminations prohibited by the Act. Pp.
364 U. S.
457-461.
(b) Although the courts below made no findings of fact, the
evidence in this case shows such a situation here. Pp.
364 U. S.
461-463.
Reversed.
Page 364 U. S. 455
MR. JUSTICE BLACK delivered the opinion of the Court.
The basic question presented in this case is whether an
interstate bus passenger is denied a federal statutory or
constitutional right when a restaurant in a bus terminal used by
the carrier along its route discriminates in serving food to the
passenger solely because of his color.
Petitioner, a Negro law student, bought a Trailways bus ticket
from Washington, D.C., to Montgomery, Alabama. He boarded a bus at
8 p.m. which arrived at Richmond, Virginia, about 10:40 p.m. When
the bus pulled up at the Richmond "Trailways Bus Terminal," the bus
driver announced a forty-minute stopover there. Petitioner got off
the bus and went into the bus terminal to get something to eat. In
the station, he found a restaurant in which one part was used to
serve white people and one to serve Negroes. Disregarding this
division, petitioner sat down on a stool in the white section. A
waitress asked him to move over to the other section where there
were "facilities" to serve colored people. Petitioner told her he
was an interstate bus passenger, refused to move, and ordered a
sandwich and tea. The waitress then brought the Assistant Manager,
who "instructed" petitioner to "leave the white portion of the
restaurant and advised him he could be served in the colored
portion." Upon petitioner's refusal to leave, an officer was called
and petitioner was arrested and later tried, convicted and
Page 364 U. S. 456
fined ten dollars in the Police Justice's Court of Richmond on a
charge that he "
[u]nlawfully did remain on the premises of
the Bus Terminal Restaurant of Richmond, Inc. after having been
forbidden to do so" by the Assistant Manager. (Emphasis supplied.)
The charge was based on § 18-225 of the Code of Virginia of 1950,
as amended (1958), which provides in part:
"If any person shall
without authority of law go upon
or remain upon the lands or premises of another, after having been
forbidden to do so by the owner, lessee, custodian or other person
lawfully in charge of such land, . . . he shall be deemed guilty of
a misdemeanor, and upon conviction thereof shall be punished by a
fine of not more than one hundred dollars or by confinement in jail
not exceeding thirty days, or by both such fine and
imprisonment."
(Emphasis supplied.)
Petitioner appealed his conviction to the Hustings Court of
Richmond, where, as in the Police Court, he admitted that he had
remained in the white portion of the Terminal Restaurant although
ordered not to do so. His defense in both courts was that he had a
federal right as an interstate passenger of Trailways to be served
without discrimination by this restaurant used by the bus carrier
for the accommodation of its interstate passengers. On this basis,
petitioner claimed he was on the restaurant premises lawfully, not
"unlawfully" as charged, and that he remained there with, not
"without authority of law." His federal claim to this effect was
spelled out in a motion to dismiss the warrant in Hustings Court,
which was overruled both before and after the evidence was heard.
Pointing out that the restaurant was an integral part of the bus
service for interstate passengers such as petitioner, and asserting
that refusal to serve him was a discrimination based on color, the
motion to dismiss charged
Page 364 U. S. 457
that application of the Virginia law to petitioner violated the
Interstate Commerce Act and the Equal Protection, Due Process, and
Commerce Clauses of the Federal Constitution. On appeal, the
Virginia Supreme Court held that the conviction was "plainly
right," and affirmed without opinion, thereby rejecting
petitioner's assignments of error based on the same grounds of
discrimination set out in his motion to dismiss in Hustings Court,
but not specifically charging that the discrimination violated the
Interstate Commerce Act. We think, however, that the claims of
discrimination previously made under the Act are sufficiently
closely related to the assignments that were made to be considered
within the scope of the issues presented to the State Supreme
Court. We granted certiorari because of the serious federal
questions raised concerning discrimination based on color. 361 U.S.
958.
The petition for certiorari we granted presented only two
questions: first, whether the conviction of petitioner is invalid
as a burden on commerce in violation of Art. I, § 8, cl. 3 of the
Constitution, and, second, whether the conviction violates the Due
Process and Equal Protection Clauses of the Fourteenth Amendment.
Ordinarily we limit our review to the questions presented in an
application for certiorari. We think there are persuasive reasons,
however, why this case should be decided, if it can, on the
Interstate Commerce Act contention raised in the Virginia courts.
Discrimination because of color is the core of the two broad
constitutional questions presented to us by petitioner, just as it
is the core of the Interstate Commerce Act question presented to
the Virginia courts. Under these circumstances, we think it
appropriate not to reach the constitutional questions, but to
proceed at once to the statutory issue.
The Interstate Commerce Act, as we have said, uses language of
the broadest type to bar discriminations of all kinds.
United States v. Baltimore
& Ohio R. Co., 333
Page 364 U. S. 458
U.S. 169,
333 U. S. 175,
and cases cited. We have held that the Act forbids railroad dining
cars to discriminate in service to passengers on account of their
color.
Henderson v. United States, 339 U.
S. 816;
see also Mitchell v. United States,
313 U. S. 80,
313 U. S.
97.
Section 216(d) of Part II of the Interstate Commerce Act, 49
U.S.C. § 316(d), which applies to motor carriers, provides in
part:
"It shall be unlawful for any common carrier by motor vehicle
engaged in interstate or foreign commerce to make, give, or cause
any undue or unreasonable preference or advantage to any particular
person . . . in any respect whatsoever; or to subject any
particular person . . . to any unjust discrimination or any unjust
or unreasonable prejudice or disadvantage in any respect
whatsoever. . . ."
So far as relevant to our problem, the provisions of § 216(d)
quoted are the same as those in § 3(1) of the Act, 49 U.S.C. §
3(1), except that the latter refers to railroads as defined in Part
I of the Act, instead of motor carriers as defined in Part II.
Section 3(1) was the basis for this Court's holding in
Henderson v. United States, supra, that it was an "undue
or unreasonable prejudice" under that section for a railroad to
divide its dining car by curtains, partitions and signs in order to
separate passengers according to race. The Court said that, under §
3(1),
"[w]here a dining car is available to passengers holding tickets
entitling them to use it, each such passenger is equally entitled
to its facilities in accordance with reasonable regulations."
Id., 339 U.S. at
339 U. S. 824.
The
Henderson case largely rested on
Mitchell v.
United States, supra, which pointed out that, while the
railroads might not be required by law to furnish dining car
facilities, yet, if they did, substantial equality of treatment of
persons traveling
Page 364 U. S. 459
under like conditions could not be refused consistently with §
3(1). It is also of relevance that both cases upset Interstate
Commerce Commission holdings, the Court stating in
Mitchell that, since the "discrimination shown was
palpably unjust and forbidden by the Act," no room was left for
administrative or expert judgment with reference to practical
difficulties.
Id., 313 U.S. at
313 U. S.
97.
It follows from the
Mitchell and
Henderson
cases as a matter of course that, should buses in transit decide to
supply dining service, discrimination of the kind shown here would
violate § 216(d).
Cf. Williams v. Carolina Coach
Co., 111 F.
Supp. 329,
aff'd 207 F.2d 408, and
Keys v.
Carolina Coach Co., 64 M.C.C. 769. Although this Court has not
decided whether the same result would follow from a similar
discrimination in service by a restaurant in a railroad or bus
terminal, we have no doubt that the reasoning underlying the
Mitchell and
Henderson cases would compel the
same decision as to the unlawfulness of discrimination in
transportation services against interstate passengers in terminals
and terminal restaurants owned or operated or controlled by
interstate carriers. This is true as to railroad terminals because
they are expressly made carriers by § 1(3)(a) of the Act, [
Footnote 1] 49 U.S.C. § 1(3)(a), and as
to bus terminals because § 203(a)(19) of the Act, 49 U.S.C. §
303(a)(19), specifically includes interstate transportation
facilities and property operated or controlled by a
Page 364 U. S. 460
motor carrier within the definition of the "services" and
"transportation" to which the motor carrier provisions of the Act
apply. [
Footnote 2]
Respondent correctly points out, however, that whatever may be
the facts, the evidence in this record does not show that the bus
company owns or actively operates or directly controls the bus
terminal or the restaurant in it. But the fact that § 203(a)(19)
says that the protections of the motor carrier provisions of the
Act extend to "include" facilities so operated or controlled by no
means should be interpreted to exempt motor carriers from their
statutory duty under § 216(d) not to discriminate should they
choose to provide their interstate passengers with services that
are an integral part of transportation through the use of
facilities they neither own, control nor operate. The protections
afforded by the Act against discriminatory transportation services
are not so narrowly limited. We have held that a railroad cannot
escape its statutory duty to treat its shippers alike either by use
of facilities it does not own or by contractual arrangement with
the owner of those facilities.
United States v. Baltimore &
Ohio R. Co., supra. And so here, without regard to contracts,
if the bus carrier has volunteered to make terminal and restaurant
facilities and services available to its interstate passengers as a
regular part of their transportation, and the terminal and
restaurant have acquiesced and cooperated in this undertaking, the
terminal and restaurant must perform these services without
discriminations prohibited by the Act. In the performance of these
services
Page 364 U. S. 461
under such conditions, the terminal and restaurant stand in the
place of the bus company in the performance of its transportation
obligations.
Cf. Derrington v. Plummer, 240 F.2d 922,
925-926,
certiorari denied, 353 U.S. 924. Although the
courts below made no findings of fact, we think the evidence in
this case shows such a relationship and situation here.
The manager of the restaurant testified that it was not
affiliated in any way with the Trailways Bus Company, and that the
bus company had no control over the operation of the restaurant,
but that, while the restaurant had "quite a bit of business" from
local people, it was primarily or partly for the service of the
passengers on the Trailways bus. This last statement was perhaps
much of an understatement, as shown by the lease agreement executed
in writing and signed both by the "Trailways Bus Terminal, Inc.,"
as lessor, and the "Bus Terminal Restaurant of Richmond, Inc.," as
lessee. The first part of the document showed that Trailways
Terminal was then constructing a "bus station" with built-in
facilities "for the operation of a restaurant, soda fountain, and
news stand." Terminal covenanted to lease this space to Restaurant
for its use; to grant Restaurant the exclusive right to sell foods
and other things usually sold in restaurants, newsstands, soda
fountains, and lunch counters; to keep the terminal building in
good repair, and to furnish certain utilities. Restaurant, on its
part, agreed to use its space for the sale of commodities agreed on
at prices that are "just and reasonable"; to sell no commodities
not usually sold or installed in a bus terminal concession without
Terminal's permission; to discontinue the sale of any commodity
objectionable to Terminal; to buy, maintain, and replace equipment
subject to Terminal's approval in writing as to its quality; to
make alterations and additions only after Terminal's written
consent and approval; to make no "sales on buses
Page 364 U. S. 462
operating in and out said bus station," but only "through the
windows of said buses"; to keep its employees neat and clean; to
perform no terminal service other than that pertaining to the
operation of its restaurant as agreed on; and that neither
Restaurant nor its employees were to
"sell transportation of any kind or give information pertaining
to schedules, rates or transportation matters, but shall refer all
such inquiries to the proper agents of"
Terminal. In short, as Terminal and Restaurant agreed,
"the operation of the restaurant and the said stands shall be in
keeping with the character of service maintained in an up-to-date,
modern bus terminal."
All of these things show that this terminal building, with its
grounds, constituted one project for a single purpose, and that was
to serve passengers of one or more bus companies -- certainly
Trailways' passengers. The restaurant area was specifically
designed and built into the structure from the beginning to fill
the needs of bus passengers in this "up-to-date, modern bus
terminal." Whoever may have had technical title or immediate
control of the details of the various activities in the terminal,
such as waiting room seating, furnishing of schedule information,
ticket sales, and restaurant service, they were all geared to the
service of bus companies and their passengers, even though local
people who might happen to come into the terminal or its restaurant
might also be accommodated. Thus we have a well coordinated and
smoothly functioning plan for continuous cooperative transportation
services between the terminal, the restaurant, and buses like
Trailways that made stopovers there. All of this evidence plus
Trailways' use on this occasion shows that Trailways was not
utilizing the terminal and restaurant services merely on a sporadic
or occasional basis. This bus terminal plainly was just as
essential and necessary, and as available, for that matter, to
passengers and carriers like Trailways that used it, as though such
carriers
Page 364 U. S. 463
had legal title and complete control over all of its activities.
[
Footnote 3] Interstate
passengers have to eat, and the very terms of the lease of the
built-in restaurant space in this terminal constitute a recognition
of the essential need of interstate passengers to be able to get
food conveniently on their journey and an undertaking by the
restaurant to fulfill that need. Such passengers in transit on a
paid interstate Trailways journey had a right to expect that this
essential [
Footnote 4]
transportation food service voluntarily provided for them under
such circumstances would be rendered without discrimination
prohibited by the Interstate Commerce Act. Under the circumstances
of this case, therefore, petitioner had a federal right to remain
in the white portion of the restaurant. He was there under
"authority of law" -- the Interstate Commerce Act -- and it was
error for the Supreme Court of Virginia to affirm his
conviction.
Because of some of the arguments made here, it is necessary to
say a word about what we are not deciding. We are not holding that,
every time a bus stops at a wholly independent roadside restaurant,
the Interstate Commerce Act requires that restaurant service be
supplied in harmony with the provisions of that Act. We decide only
this case, on its facts, where circumstances show that the terminal
and restaurant operate as an integral part of the
Page 364 U. S. 464
bus carrier's transportation service for interstate passengers.
Under such circumstances, an interstate passenger need not inquire
into documents of title or contractual arrangements in order to
determine whether he has a right to be served without
discrimination.
The judgment of the Supreme Court of Virginia is reversed, and
the cause is remanded to that Court for proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
See National Association for the Advancement of Colored
People v. St. Louis-S.F. R. Co., 297 I.C.C. 335, 347-348, in
which the Interstate Commerce Commission held that a railroad
terminal discriminates in violation of § 3(1) if it maintains
waiting rooms for the exclusive use of Negroes. The Commission
regarded assignment to accommodations or facilities in a railroad
terminal solely on the basis of race as an implication of inherent
inferiority and found it to be unreasonable.
[
Footnote 2]
"The 'services' and 'transportation' to which this chapter
applies include all vehicles operated by, for, or in the interest
of any motor carrier irrespective of ownership or of contract,
express or implied, together with all facilities and property
operated or controlled by any such carrier or carriers, and used in
the transportation of passengers or property in interstate or
foreign commerce or in the performance of any service in connection
therewith."
[
Footnote 3]
Cf. Atchison, Topeka & S.F. R. Co., 135 I.C.C. 633,
634-635, in which the Commission held that railroad-owned hotels
and restaurants used for railroad passengers and employees, and as
an incident to the operation and management of the railroad, should
be accorded a common carrier classification.
[
Footnote 4]
Because the evidence shows that this terminal restaurant was
utilized as an integral part of the transportation of interstate
passengers, we need not decide whether discrimination on the basis
of color by a bus terminal lessee restaurant would violate § 216(d)
in the absence of such circumstances.
Cf. National Association
for the Advancement of Colored People v. St. Louis-S.F. R. Co.,
supra, at 343-344.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE CLARK joins,
dissenting.
Neither in the Supreme Court of Appeals of Virginia nor in his
petition for certiorari or in his brief on the merits in this Court
did petitioner challenge the judgment on the ground that it was
obtained in violation of the Interstate Commerce Act. I therefore
respectfully submit that, under our rules and decisions, no such
question is presented or open for consideration here. [
Footnote 2/1] But even if the Court
properly may proceed, as it has proceeded, to decide the case under
that Act, and not at all on the constitutional grounds solely
relied on by petitioner, [
Footnote
2/2] I must say, with all deference, that the facts in this
record do not show that petitioner was convicted of trespass in
violation of that Act.
For me, the decisive question in this case is whether petitioner
had a legal right to remain in the restaurant
Page 364 U. S. 465
involved after being ordered to leave it by the proprietor. If
he did not have that legal right, however arising, he was guilty of
trespass, and, unless proscribed by some federal law, his
conviction therefor was legally adjudged under § 18-225 of the Code
of Virginia. [
Footnote 2/3]
If the facts in this record could fairly be said to show that
the restaurant was a facility
"operated or controlled by any [motor] carrier or carriers, and
used in the transportation of passengers or property in interstate
or foreign commerce,"
§ 203(a)(19) of Part II of the Interstate Commerce Act, 49
U.S.C. § 303(a)(19), I would agree that petitioner had a legal
right to remain in, and to insist on service by, that restaurant,
and, hence, was not guilty of trespass in so remaining and
insisting, though in defiance of the manager's order to leave, for
§ 216(d) of the Act, 49 U.S.C. § 316(d), makes it unlawful for a
motor carrier, while engaged in interstate commerce, "to subject
any particular person . . . to any unjust discrimination," and this
Court has held that any discrimination by a carrier against its
interstate passenger on account of his color in the use of its
dining facilities is an unjust discrimination.
Henderson v.
United States, 339 U. S. 816.
Cf. Mitchell v. United States, 313 U. S.
80.
But I respectfully submit that those are not the facts shown by
this record. As I read it, there is no evidence in this record even
tending to show that the restaurant was "operated or controlled by
any such carrier," directly or indirectly. Instead, all of the
relevant evidence, none
Page 364 U. S. 466
of which was contradicted, shows that the restaurant was owned
and controlled by a noncarrier who alone operated it as a local and
private enterprise. The evidence was very brief, consisting only of
an exhibit (a lease) and the testimony of the assistant manager of
the restaurant, of a police officer and of petitioner -- all,
except the exhibit, being contained on 10 pages of the printed
record. The lease is in the usual and common form and terms. By it,
the owner of the building, Trailways Bus Terminal, Inc., a Virginia
corporation, as lessor, demised to the restaurant company, Bus
Terminal Restaurant of Richmond, Inc., a Virginia corporation, as
lessee, certain described "space" in the lessor's bus station
building in Richmond, Virginia, "for use by Lessee as a restaurant,
lunchroom, soda fountain and news stand," for a term of five years
from December 2, 1953 (with an option in the lessee to renew, on
the same terms, for an additional five-year term) at an annual
rental of $30,000 (payable in equal monthly installments) plus 12%
of lessee's gross receipts from the demised premises in excess of
$275,000 (payable at the end of each year). [
Footnote 2/4]
Page 364 U. S. 467
There is not a word of evidence that any carrier had any
interest in or control over the lessee or its restaurant. Nor is
there any suggestion in the record that the lease or the lessee's
restaurant operations under it were anything other than
bona
fide and for a legitimate and private business purpose.
Indeed, there is not a word of evidence in the record tending to
show that any carrier even had any interest in or control over the
lessor corporation that owned the building. In truth, the record
does not even show the name of the carrier on which petitioner was
traveling or identify it other than as "Trailways." [
Footnote 2/5] On
Page 364 U. S. 468
the other hand, the assistant manager of the restaurant
testified, without suggestion of contradiction, that "[t]he company
that operates the restaurant is not affiliated in any way with the
bus company," and that "[t]he bus company has no control over the
operation of the restaurant." There was simply no evidence to the
contrary.
The Court seems to agree that
"[r]espondent correctly points out [that] . . . the evidence in
this record does not show that the bus company owns or actively
operates or directly controls the bus terminal or the restaurant in
it."
But it seems to hold, as I read its opinion, that a motor
carrier's regular "use" of a restaurant, though it be "neither
own[ed], control[led] nor operate[d]" by the motor carrier, makes
the restaurant a facility "operated or controlled by [the motor]
carrier or carriers" within the meaning of § 203(a)(19) of the
Interstate Commerce Act. I must respectfully disagree. To me, it
seems rather plain that, when Congress, in § 203(a)(19), said that
the "services" and "transportation" to which Part II of the Act
applies shall include
"all vehicles . . . together with all facilities and property
operated or controlled by any such carrier or carriers, and used in
the transportation of passengers or property in interstate or
foreign commerce or in the performance of any service in connection
therewith,"
it hardly meant to include a private restaurant, "neither owned,
operated nor controlled" by a carrier. Surely such "use" of a
private restaurant by a motor carrier as results from stopping and
opening its buses in front of or near a restaurant does not make
the restaurant a facility "operated or controlled by" the carrier,
within the meaning of § 203(a)(19) or in any true sense. This
simple, and I think obvious, principle was recognized and correctly
applied by the Commission as recently as November 1955 in
NAACP
v. St. Louis, S.F. R. Co., 297 I.C.C. 335. There, the railroad
terminal or station building in
Page 364 U. S. 469
Richmond, Virginia, was owned by Richmond Terminal Railway
Company [
Footnote 2/6] -- itself a
carrier under § 3(1) of Part I of the Act -- which had leased space
in that building to Union News Company for a term of 10 years, but
subject to termination at the option of either party on 90 days'
notice, for use as a restaurant. [
Footnote 2/7] In rejecting the contention that the Union
News Company's operation of the restaurant on a racially segregated
basis violated § 3(1) of Part I of the Act, the Commission
said:
"Unless the operation of the lunchrooms can be found to be that
of a common carrier subject to part I of the act, it cannot be
regulated under section 3(1), and we are unable so to find on the
facts before us."
Id. at 344, and the Commission concluded:
"We further find that the operation
by a lessee
(noncarrier) of separate lunchroom facilities for white and
colored persons in the railway station at Richmond, constitutes a
function or service which is not within the jurisdiction of this
Commission."
(Emphasis added.)
Id. at 348.
Page 364 U. S. 470
I would agree with the Court that,
"if the bus carrier [had] volunteered to make . . . restaurant
facilities and services available to its interstate passengers as a
regular part of their transportation, and the . . . restaurant
[had] acquiesced . . . in this undertaking,"
the restaurant would then have been bound to serve the carrier's
interstate passengers without discrimination. For, in that case,
the restaurant would have been made a facility of the carrier,
within the meaning of § 203(a)(19), and § 216(d) would inhibit both
the carrier and the restaurant from discriminating against the
carrier's interstate passengers on account of their color, or on
any other account, in the use of the restaurant facilities thus
provided. Henderson v. United States,
supra. But that is
not this case. As we have shown, there is no evidence in this
record that the carrier on which petitioner was traveling, whatever
may have been its name, had "volunteered to make . . . restaurant
facilities and services available to its interstate passengers" at
this restaurant "as a regular part of their transportation," or
that the proprietor of this restaurant ever "acquiesced" in any
such "undertaking." There is no evidence of any agreement, express
or implied, between the proprietor of this restaurant and any bus
carrier. Instead, the undisputed evidence is that the restaurant
was not in any way affiliated with or controlled by any bus
carrier. On this evidence, I am unable to find any basis to support
a conclusion that this restaurant was in some way made a facility
of the bus carrier, or subject to Part II of the Interstate
Commerce Act.
For these reasons, I cannot agree on this record that
petitioner's conviction of trespass under § 18-225 of the Code of
Virginia was had in violation of the Interstate Commerce Act. Since
the Court's opinion does not explore the constitutional grounds
relied on by petitioner, I refrain from intimating any views on
those subjects.
[
Footnote 2/1]
See our Rules 23(1)(c) and 40(1)(d)(1);
Lawn v.
United States, 355 U. S. 339,
355 U. S. 362,
n. 16, and cases cited.
[
Footnote 2/2]
The only grounds relied on by petitioner in the Supreme Court of
Appeals of Virginia and in his petition for certiorari and brief on
the merits in this Court were that his conviction is invalid as an
undue burden on interstate commerce in violation of Art. I, § 8,
cl. 3, and also violated the Due Process and Equal Protection
Clauses of the Fourteenth Amendment of the United States
Constitution.
[
Footnote 2/3]
Section 18-225 of the Code of Virginia, in relevant part,
provides:
"If any person shall without authority of law go upon or remain
upon the lands or premises of another, after having been forbidden
to do so by the owner, lessee, custodian or other person lawfully
in charge of such land, . . . he shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be punished by a
fine of not more than one hundred dollars or by confinement in jail
not exceeding thirty days, or by both such fine and
imprisonment."
[
Footnote 2/4]
Under other provisions of the lease, the lessee covenanted, in
substance, that it would acquire and install in the leased space at
its own expense, all things, including plumbing and wiring, which
may be reasonably necessary to the equipment and operation of the
restaurant; to provide and pay for all gas and electric current,
except for overhead lights; to keep the premises and employees neat
and clean and to operate the restaurant "in keeping with the
character of service maintained in an up-to-date, modern bus
terminal"; that it would not keep any coin-controlled machines or
sell intoxicants on the demised premises, nor make "any sales on
buses operating in and out [of] said bus station," that it
would
"comply with all the ordinances of the City of Richmond, and the
laws of the United States and the State of Virginia in respect to
the conduct of business of Lessee on the demised premises;"
to take good care of the premises, and to surrender them at the
end of the term in the same condition as when received, "ordinary
wear and tear excepted."
[
Footnote 2/5]
Obviously recognizing these glaring deficiencies in the
evidence, counsel for petitioner and for the Government, as
amicus curiae, have submitted with their briefs in this
Court copies of certain Annual Reports of Virginia Stage Lines,
Inc. (which probably was the carrier on which petitioner was
traveling), Carolina Coach Company, and of Trailways Bus Terminal,
Inc. (the owner of the building and lessor of the space occupied by
the lessee's restaurant), to the State Corporation Commission of
Virginia, purporting to show that those companies were doing
business in Virginia in 1958 and 1959, and a copy of certain pages
of the Annual Report filed by Virginia Stage Lines, Inc., with the
Interstate Commerce Commission for the year 1959, purporting to
show that the capital stock of Trailways Bus Terminal, Inc., was
owned in equal parts by Virginia Stage Lines, Inc., and Carolina
Coach Company. But none of those documents was put in evidence nor
brought to the attention of the Supreme Court of Appeals of
Virginia, and it appears, as contended by Virginia, that the
Virginia court could not take judicial notice of those documents.
See §§ 8-264 and 8-266 of the Code of Virginia;
Commonwealth v. Castner, 138 Va. 81, 121 S.E. 894;
Sisk v. Town of Shenandoah, 200 Va. 277, 105 S.E.2d 169;
Bell v. Hagmann, 200 Va. 626, 107 S.E.2d 426. In the light
of these facts, the proffered documents cannot be considered here.
Lawn v. United States, 355 U. S. 339,
355 U. S. 354;
Wolfe v. North Carolina, 364 U. S. 177. But
even if those documents could be considered here, they would not
aid petitioner, for they do not purport to show that any carrier
had any interest in or control over the restaurant involved, or in
or over Bus Terminal Restaurant of Richmond, the company that owned
and operated the restaurant.
[
Footnote 2/6]
The Richmond Terminal Railway Company was controlled jointly by
two railroads-the Richmond, Fredericksburg & Potomac Railway
Co. and the Atlantic Coast Line.
[
Footnote 2/7]
The lease involved in that case was evidently similar to the one
here. Speaking of that lease, the Commission said:
"The lease is silent as to racial segregation. The terminal has
certain powers of supervision for a purpose which may be described
as policing. The lessee is obligated to 'comply with the
requirements of the Department of Public Health, City of Richmond,
and with all other lawful governmental rules and regulations.' The
context, however, indicates that this requirement is for the
purpose of keeping the premises in a neat, clean, and orderly
condition, and does not render the lessee liable for violations of
the Interstate Commerce Act."
297 I.C.C. at 343.