Burton v The Wilmington Parking Authority Memorandum for the US as Amicus Curiae

    N o. 164

In t o  jftqirMe djjflnrt of tire Unite I  $htn
October Term, 1960

W illiam H. B urton, appellant

v.
T he W ilmington P arking A uthority, a B ody 

Corporate and P olitic op the State op Delaware, 
and E agle Coffee Shoppe, I nc., a Corporation of 
the State of Delaware

ON APPEAL FROM TEE SUPREME COURT OF THE STATE OF
DELAWARE

MEMORANDUM EOR THE UNITED STATES AS AMICUS CURIAE

J. LEE RANKIN,
Solicitor General, 

HAROLD R. TYLER, JR.,
Assistant Attorney General, 

Department of Justice, Washington 25, D,C.



J i t  t o  .Supreme d|miri of t o  United states
October Term, 1960 

No. 161

W illiam H. B urton, appellant

v.
T he W ilmington P arking A uthority, a B ody 

Corporate and P olitic or the State of Delaware, 
and E agle Coffee Shoppe, I nc., a Corporation of 
the State of Delaware

ON APPEAL FROM THE SUPREME COURT OF THE STATE OF
DELAWARE

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

This case, we believe, presents issues of broad im­
portance.* 1 One need not elaborate upon the truism 
that there is growing participation by governmental 
agencies—national, state and local—in a host of activ­
ities designed to promote the public welfare. By the 
same token, it is a matter of great moment that public 
funds and property be utilized for the benefit of all 
citizens, without distinctions based on race, color, 
creed or other impermissible classification. The Con­
stitution of the United States requires no less.

1 The background facts are fully stated in appellant’s brief, 
and we shall not attempt to restate them.

( 1 )580953— 61



2

It is not amiss to point out that the United States is 
the single greatest landholder in the Nation. Under 
the Constitution, it may not discriminate. The Fed­
eral Government accordingly has the duty to insure 
that properties and facilities which it leases (for 
example, leases to concessionaires in the national 
parks) shall be accessible to the general public on a 
non-discriminatory basis. Corresponding duties rest 
upon the several states.

1. The Fourteenth Amendment applies to “ State 
action of every kind, which * * * denies * * * the 
equal protection of the laws,”  Civil Rights Cases, 
109 U.S. 3, 11. And there is state action, in the sense 
of the Fourteenth Amendment, when there is “ state 
participation through any arrangement, management, 
funds or property,”  Cooper v. Aaron, 358 U.S. 1, 4. 
And see Shelley v. Kraemer, 334 U.S. 1, 20 ( “ State 
action * * * refers to exertions of state power in all 
forms” ).

In the instant case, the racial discrimination is by a 
restaurant located on public land (land purchased 
with public funds) operating within a public building 
constructed with public monies. The lease, moreover, 
makes an indispensable contribution to the support of 
activities in which the Authority engages elsewhere in 
the building. No more is required, we submit, to 
establish that access to the restaurant facility must 
be accorded without racial discrimination.

Indeed, we think it plain that the prohibitions of 
the Fourteenth Amendment have been held binding in 
situations where state participation might be deemed 
less direct and substantial than it is here.



3

In the Girard case, Pennsylvania v. Board of Direc­
tors of City Trusts, 353 U.S. 230, the discrimination 
(in that case, against Negro applicants for admission 
to Girard College) stemmed from the fact that an in­
dividual had placed limitations upon the use of monies 
which he had placed in a private trust. A  state 
agency was involved in the matter as trustee, i.e., it 
was engaged in carrying out the trust in accordance 
with its terms. This Court nonetheless concluded 
that the action of the trustee was “discrimination by 
the State”  (353 U.S. at 231). The case thus illus­
trates the general principle that it is immaterial that 
the racial discrimination being enforced by a state 
agency has its origin in purely private action (i.e., 
that the racial exclusion or discrimination was made 
in the first instance by an individual or private organ­
ization) . What is material and decisive, for purposes 
of the Fourteenth Amendment, is that the state has 
chosen to place its power behind the discrimination. 
This it may not do, in any form or through any device. 
I f  a state cannot participate in the administration of 
a private trust which draws racial distinctions, as 
the Girard case holds, it follows, we believe, that it 
cannot lease its own property for a use which will in­
volve denial of access on the basis of race. This is 
particularly so where, as in this case, the leased prop­
erty is integrally related, both physically and by 
financial ties, to the conduct of other activities in 
which the public authority is engaged. See infra,
pp. 8-10.

This Court has also placed sharp limitations upon 
the use of judicial process to enforce private acts of



4

discrimination. In Shelley v. Kraemer, supra, judi­
cial enforcement of private racial restrictive covenants 
by means of injunctions, where the result was to create 
a condition which could not be established through state 
legislative action (Buchanan v. Warley, 245 U.S. 60), 
was held violative of the Fourteenth Amendment. 
In  Barrows v. Jackson, 346 U.S. 249, the rule was ex­
tended to cover the assessment of damages for breach 
of such covenants. In Marsh v, Alabama, 326 U.S. 
501, this Court ruled that state courts could not ad­
judge convictions for trespass against persons exer­
cising their rights of free speech in a privately owned 
company town. In that context, the “private”  action 
was deemed to be sufficiently infused with governmen­
tal aspects to be properly attributable to the state. 
The leasing of state property—particularly where the 
leased property remains an integral part o f a public 
facility—certainly presents at least as many indicia 
of state action as were found in the cited cases.

2. There is also a large body of case law which 
deals with the precise type of problem presented 
here, i.e., discrimination by a lessee of public property 
or facilities. See Muir v. Louisville Park Theatrical 
Association, 347 U.S. 971, vacating and remanding, 202 
F. 2d 275 (C.A. 6) (leased open air theater); Aaron 
v. Cooper, 261 F. 2d 97 (C.A. 8) (leased school); 
City of Greensboro v. Simkins, 246 F. 2d 425 (C.A. 
4), affirming 149 F. Supp. 562 (M.D.N.C.) (leased 
golf course); Derrington v. Plummer, 240 F. 2d 922 
(C.A. 5), certiorari denied, 353 U.S. 924 (leased cafe­
teria) ; Coke v. City of Atlanta, 184 F. Supp. 579 
(U.D, Ga.) (leased airport restaurant); Jones v.



5

Marva Theatres, 180 F. Supp. 49 (D. Md.) (leased 
motion picture theatre) ; Tate v. Department of Con­
servation, 133 F. Supp. 53 (E.D. Va.), affirmed, 231 
F. 2d 615 (C.A. 4), certiorari denied, 352 U.S. 838 
(leased beach); Nash v. Air Terminal Services, 85 
F. Supp. 545 (E.D. Ya.) (leased airport restaurant); 
Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W . 
Ya.) (leased swimming pool).2 Although these deci­
sions are rested on various grounds—in some, that the 
lease was a technique of evading state responsibility; 
in others, that the property, though privately oper­
ated, was being used for a public purpose—they have 
been uniform in reaching the conclusion that the dis­
crimination effectuated by the lessee was constitu­
tionally forbidden.

Herrington v. Plummer, supra, is a case which, on 
its facts, is close to the one at bar. There, a restau­
rant was constructed in the basement o f a new court­
house building. After completion, the space was 
leased to a private party for operation. Following 
a refusal of service, several Negroes brought suit to 
enjoin the County from leasing to any tenant who 
practiced such discrimination. Sustaining an injunc­
tion issued by the District Court, the Fifth Circuit 
held that the action of the lessee was not mere private

2 See, also, City of St. Petersburg v. Alsup, 238 F. 2d 830 
(C.A. 5), certiorari denied, 353 U.S. 922, holding that it is 
irrelevant, for purposes o f the Fourteenth Amendment, whether 
the state’s activity is “ governmental” or “ proprietary.”



6

conduct, but partook o f state action. The opinion 
stated (240 F. 2d at 925-926) :

Assuming no purpose of discrimination on 
the part of the County in the renewal of the 
lease, and further assuming no express reser­
vation of control by the terms of the lease to 
prevent discrimination, * * * the basement of 
the courthouse can by no means be termed 
surplus property not used nor needed for 
County purposes. To the contrary, the court­
house had just been completed, built with public 
funds for the use o f the citizens generally, and 
this part of the basement had been planned, 
equipped and furnished by the County for use 
as a cafeteria. Without more justification 
than is shown in this case, no court could 
countenance the diversion of such property to 
a purely private use.

* * * I f  the County had rendered such a serv­
ice directly, it could not be argued that discrimi­
nation on account o f race would not be violative 
of the Fourteenth Amendment. The same re­
sult inevitably follows when the service is ren­
dered through the instrumentality of a lessee; 
and in rendering such service the lessee stands 
in the place of the County. His conduct is as 
much state action as would be the conduct o f 
the County itself. * * *

Similarly, in Nash v. Air Terminal Services, Inc., 
supra, the plaintiff was refused service in a privately 
run concession at the Washington National Airport. 
The court found (85 F. Supp. at 549) that the plaintiff 
had been denied his rights under the Fourteenth 
Amendment since the restaurant was operated “ too



7

close, in origin and purpose, to the functions of the 
public government to allow them the right to refuse 
service without good cause.”  And in Coke v. City of 
Atlanta, Georgia, supra, the court appears to have dis­
carded the exception suggested in the Derrington 
opinion, i.e., that property not used or needed for gov­
ernmental purposes may be operated free of the re­
strictions of the Fourteenth Amendment. Although 
it found that property at the Atlanta Airport Ter­
minal leased as a restaurant was not used or needed for 
city purposes, the court held (184 F. Supp. at 585) :

Under the facts in this case the Court holds 
that the conduct of Dobbs Houses, Inc. [the les­
see] is as much state action as would be similar 
conduct of the City of Atlanta itself and that the 
discrimination practiced by Dobbs Houses, Inc. 
in refusing to serve Negroes except upon a segre­
gated basis is violative of plaintiff’s rights as a 
Negro citizen under the equal protection pro­
vision of the Fourteenth Amendment. * * *

While the cases involving leases of government 
property deal with variant factual situations, they 
have one element in common: all of them involved 
facilities which, although operated by non-govern­
mental lessees, were open to the public generally. 
Under such circumstances at least, where one segment 
of the general public is singled out and refused serv­
ice solely because of race or color, “ * * * the right 
of citizens to use public property without discrimi­
nation on the ground of race may not be abridged by 
the mere leasing of the property.”  City of Greens­
boro v. Simkins, 246 F. 2d 425, 426 (C.A. 4).



8

3. The grounds of distinction offered by the opinion 
below are not, in our view, tenable. These grounds 
are (a) that the use of public funds to create and op­
erate the Authority was so slight as not to change the 
private nature of the enterprise (R. 53), and (b) “ that 
the establishment of a restaurant in the space occu­
pied by Eagle is a pure happenstance and was not in­
tended as a service to the public using the parking 
facility”  (R. 52).

A. We believe it unnecessary under the Constitution 
for a court to determine the precise extent to which 
the Wilmington Parking Authority is underwritten 
by public money, for there is no question that the 
Authority is an agent of the State. The statute creat­
ing the Authority specifically provides so. 22 Del. 
0 .504(a).

Even if the amount of public contribution were a 
material factor, the court below acknowledged that 
15 per cent of the costs of constructing the Author­
ity ’s facility consisted of public monies3 (R. 50, 53). 
Such a contribution is not de minimis. Moreover, the 
court below has ignored the fact, manifest in the 
record, that the City of Wilmington gave the Au­
thority $1,822,827.69 of public funds and that this 
sum  was used to redeem the Authority’s revenue 
bonds and to repay its bank loan.4 In addition, it 
would seem that the funds received by the sale of

3 The court’s calculation was based only upon the $934,000 
“ advanced” by the City o f Wilmington (R. 50).

4 The affidavit o f Jay C. Pownall, chairman of the Wilming­
ton Parking Authority, submitted to the Court o f Chancery 
and included in the record before the Delaware Supreme Court, 
attests to the $1,822,827.69 donation by the City o f Wilmington.



revenue bonds were as much public funds as the 
monies donated by the City of Wilmington, The 
bonds were sold by an agency of the state and were 
deposited in the treasury of an agency of the state.5

B. The court below also gave great weight to its 
determination that a restaurant within a pa rking 
facility is not designed “ for the convenience and serv­
ice of the public using the parking service. ’ ’ It is 
not necessary, however, to say that those members o f 
the public who utilize the parking facilities have need 
of the restaurant’s services in order to conclude that 
the operation of the restaurant is integrally related 
to the public activity which is the primary concern 
of the Authority.6 It is undisputed that it would not

6 See Tate v. Department of Conservation and- Development^ 
133 F. Supp. 53 (E.D. Va.), affirmed, 231 F. 2d 615 (C.A. 
4 ), certiorari denied, 352 U.S. 838, and Lawrence v. Hancock, 
76 F. Supp. 1004 (S.D. W . Va.) where the facilities involved 
were constructed by state agencies with funds derived akhQpt 
entirely from the sale o f public bonds.

6 The public importance o f the Authority’s activities cannot 
be doubted. The Parking Authority Act o f 1951 (22 Del. O., 
Ch. 5 )—under which the Wilmington Parking Authority was 
created—contains a detailed statement o f findings and policy 
(Sec. 501). This statement emphasizes the urgency o f traffic 
control and stresses the need to provide adequate parking fa­
cilities. It states:

“ The establishment o f a parking authority will promote the 
public safety, convenience, and welfare * * * therefore it is 
declared to be the policy o f this State to promote the safety 
and welfare of the inhabitants thereof by the creation in in­
corporated cities o f bodies corporate and politic to be known 
as “ Parking Authorities * *
The 1951 Act also gives the Authority the power to lease where 
“ such leasing is necessary and feasible for the financing, and 
operation o f such facilities”  (Sec. 504(a)). And see Wilming­
ton Parking Authority v. Ranhen, 34 Del. Ch. 439, 105 A. 2d 
614, holding that the furnishing o f off-street parking is a proper 
public purpose which meets an existing need.



10

be possible for the Authority to carry out its au­
thorized public purpose—providing off-street parking 
facilities—in the absence of revenues from Eagle and 
other lessees in the building. The opinion below 
stated (R. 51) that commercial leasing was “ neces­
sary financially to the project.”  And, since the leas­
ing activity is vital to the functioning of the Author­
ity, it cannot be heard to assert that it is free to 
conduct that activity without complying with the 
constitutional standards applicable to all forms of 
state action.

In Boynton v. Virginia, Ho. 7, this Term, decided 
December 5, 1960, the Court was also dealing with a 
restaurant, one which was located in a bus terminal. 
The Interstate Commerce Act, Part II, regulates 
carriers only. Moreover, carriers are not required to 
provide restaurants in their terminals. But the facts 
of the Boynton case disclosed a close interrelationship 
between the carrier’s service and the restaurant. The 
Court concluded that:

* * * where circumstances show that the ter­
minal and restaurant operate as an integral part 
of the bus carrier’s transportation service 
for interstate passengers * * * 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 rationale of the Boynton case, although that 
decision involved only a statutory problem, is perti­
nent here. The facts here demonstrate that the 
Authority’s commercial leases form an “ integral part”  
of its activity. In these circumstances, the State and



11

its lessee are similarly foreclosed from pursuing a 
racially discriminatory arrangement. A  patron enter­
ing the public building owned by the Authority and 
bearing its name has the right, without inquiring into 
the documents between landlord and tenant, “ to be 
served without discrimination.”

CONCLUSION

The judgment of the Supreme Court of Delaware 
should be reversed.

Respectfully submitted.
J. L ee R ankin ,

Solicitor General.
H arold R. Tyler, Jr., 

Assistant Attorney General.
J anuary 1961.

U s .  GOVERNMENT PRINTING O FFI CE :  1981