Bouie v. City of Columbia Brief Opposing Petition for Writ of Certiorari

    Supreme Court of the United States

OCTOBER TERM, 1962

No. 159

SIMON BOUIE and TALMADGE J. NEAL, P etitio n ees ,

versus
THE CITY OF COLUMBIA, R espondent

BRIEF OPPOSING PETITION FOR WRIT
OF CERTIORARI

JOHN W. SHOLENBERGER, 
City Attorney,

EDWARD A. HARTER, JR., 
Assistant City Attorney, 

Columbia, S. C.,
Attorneys for Respondent.

OF COUNSEL:
DANIEL R. McLEOD,

Attorney General of South 
Carolina,

Columbia, South Carolina.

ih® R, L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Statement ........................................................................  1

Reasons for Denying the Writ:
I. The Peitioners Were Trespassers and Were 

Subject to Being Ejected or Arrested Without 
Violating Their Rights Under the Fourteenth 
Amendment ........................................................  3

II. The Decision of the Supreme Court of South 
Carloina Granted Petitioners All Rights to 
Freedom of Expression to Which They Were 
Entitled Under the Fourteenth Amendment to 
the Constitution of the United S ta te s ............... 6

Conclusion ....................................................................... 8

(i)





TABLE OF CASES
P age

Alpaugh v. Wolverton, 36 S. E. (2d) 906, 184 Va. 943 .. 3
City v. Mitchell, 239 S. C. 376,123 S. E. (2d) 512.........  6
Carner v. Louisiana, 368 U. S. 157, 7 L. Ed. (2d) 207,

82 S. Ct. 248 ...............................................................  3
Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 90 L.

Ed. 265 ........................................................................  8
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331.............4, 6
Slack v. Atlantic White Tower System, Inc., 284 P. 

(2d) 747 ....................................................................... 3
State v. Lazarus, 1 Mills, Constitution (8 S. C. L.) 34

4,6
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 ................................................................................ 3

STATUTES
South Carolina Code, 1952, Amended, Sec. 16-386 ..........4,6
General Statutes of South Carolina (1882) ................... 4
1883 Acts of South Carolina (18) Page 4 3 ....................  5
1898 Acts of South Carolina (22) Page 811 ................  5
1954 Acts of South Carolina (48) Page 1705 ................  5

OTHER AUTHORITIES
Webster’s New International Dictionary (Second Edi­

tion) “Land” .............................................    6

(iii)



Supreme Court of the United States

OCTOBER TERM, 1962

No. 159

SIMON BOUIE and TALMADGE J. NEAL, P etitioners ,

versus
THE CITY OP COLUMBIA, R espondent

BRIEF OPPOSING PETITION FOR WRIT 
OF CERTIORARI

STATEMENT
We adopt as our Statement the summary of the pro­

ceedings in the Recorder’s Court as given by Mr. Justice 
Legge for the Supreme Court of South Carolina [239 S. C. 
396, 123 S. E. 2d. (521)]:

“The appellants Simon Bouie and Talmadge J. 
Neal, Negro college students, were arrested on March 
14, 1960, and charged with trespass (Code, 1952, Sec­
tion 16-386 as amended) and breach of the peace (Code, 
1952, Section 15-909). Bouie was also charged with re­
sisting arrest. On March 25, 1960, they were tried be­
fore the Recorder of the City of Columbia, without a 
jury. Both were found guilty of trespass; Bouie guilty 
also of resisting arrest. Bouie was sentenced to pay a



2 Bouie et a l, Petitioners, v. City of Columbia, Respondent

fine of one hundred ($100.00) dollars, or to imprison­
ment for thirty (30) days on each charge, twenty-four 
and 50/100 ($24.50) of each tine being suspended and 
the prison sentences to run consecutively. Neal was 
sentenced to pay a tine of one hundred ($100.00) dol­
lars, of which twenty-four and 50/100 ($24.50) was sus­
pended, or to imprisonment for thirty (30) days. On 
appeal to the Richland County Court the judgment of 
the Recorder’s Court was affirmed by order dated April 
28, 1961, from which this appeal comes.

“Eckerd’s, one of Columbia’s larger drugstores, in 
addition to selling to the general public drugs, cosmet­
ics and other articles usually sold in drugstores, main­
tains a luncheonette department. Its policy is not to 
serve Negroes in that department.”

“On March 14, 1960, about noon, the appellants 
entered this drugstore and sat down in a booth in the 
luncheonette department for the purpose, according to 
their testimony, of ordering food and being served. 
Neal testified that it was his intention to be arrested; 
Bouie testified that he knew of the store’s policy not to 
serve Negroes in that department, and that it was his 
purpose also to be arrested ‘if it took that’. No em­
ployee of the store approached them, and they contin­
ued to sit in the booth for some fifteen minutes, each 
with an open book before him, when the manager of 
the store came up, in company with a police officer, told 
them that they would not be served, and twice re­
quested them to leave. Upon their ignoring such re­
quest, the police officer asked them to leave, which re­
quest brought no result other than the query ‘for what’ 
from Bouie. The police officer then told them to leave 
and that they were under arrest. Thereupon Neal closed 
his book and got up ; Bouie did not, and the officer 
thereupon caught him by the arm and lifted him out of 
the seat. Bouie’s book being still on the table, he was 
permitted to get it; and the officer then seized him by 
the belt and proceeded to march him out of the store. 
Bouie testified that he made no resistance, but only 
said to the officer when the latter had hold of his belt,



Bouie et al., Petitioners, v . City of Columbia, Respondent 3

‘That’s all right, Sheriff, I ’ll come on’. The officer tes­
tified that Bonie said: ‘Don’t hold me, I ’m not going 
anywhere’, and that after they had proceeded a few 
steps he started pushing back and said ‘Take your 
hands off me, you don’t have to hold me.’ ”

REASONS FOR DENYING THE WRIT 
I

The Petitioners Were Trespassers and Were Subject 
to Being Ejected or Arrested Without Violating Their 
Rights Under the Fourteenth Amendment.

This case does not come within the rule of Garner v. 
Louisiana, 368 U. S. 157, 7 L. Ed. (2d) 207, 82 S. Ct. 248. 
Petitioners were “sit-ins” but they were not arrested for 
merely sitting or demonstrating. They were arrested only 
after the owner of the private luncheonette department 
asked them to leave the premises and they failed or refused 
to do so. They were trespassers then, if not before, both 
under common and statutory law and were arrested and 
convicted as such.

The luncheonette dept, was privately owned, was within 
a privately owned drugstore in a privately owned building 
on privately owned ground and was engaged purely in local 
commerce. The rights and duties of the proprietor were like 
those of a restaurant not an inn. As stated in Alpaugh v. 
Wolverton, 36 S. E. (2d) 906, 184 Va. 943, “He [the pro­
prietor] is under no common law duty to serve everyone 
who applies to him. In the absence of statute, he may ac­
cept some customers and reject others on purely personal 
grounds.”

Such proprietor violates no constitutional provisions 
if he makes a choice on the basis of color. Williams v. How­
ard Johnson’s Restaurant, 268 F. (2d) 845; Slack v. Atlan­
tic White Tower System, Inc., 284 F. (2d) 747 (1960).



4 Bouie et a l ,  Petitioners, v . City of Columbia, Respondent

If petitioners had no right to be served, the proprietor 
could as he did here, ask them to leave and upon their re­
fusal to comply with his request, they became trespassers. 
This has always been the law in South Carolina.

In State v. Lazarus, 1 Mill, Const. (8 S. C. Law) 31, 
(1817), the South Carolina Constitutional Court said: * * * 
“the prosecutor having business to transact with him [the 
defendant], had a right to enter his house and if he re­
mained after having been ordered to depart, might have 
been put out of the house, the defendant using no more vio­
lence than was necessary to accomplish this object, and 
showing to the satisfaction of the court and judge, that this 
was his object.”

In Shramek v. Walker, 152 S. C. 88, 149 S. E. 331 
(1929), the Supreme Court of South Carolina quoted the 
rule as stated above in the Lazarus case, then quoted fur­
ther with approval from 2 R. C. L., 559, as follows:

“Therefore, while the entry by one person on the 
premises of another may be lawful, by reason of 
express or implied invitation to enter, his failure to 
depart, on the request of the owner, will make him a 
trespasser and justify the owner in using reasonable 
force to eject him.”
Neither of the above cases involved questions of race. 
In addition to becoming trespassers at common law, 

petitioners also violated Section 16-386 of the Code of Laws 
of South Carolina, 1952, as amended. The section was ap­
parently first enacted in 1866. In the General Statutes of 
South Carolina (1882), it read as follows:

“Sec. 2507. Every entry on the enclosed or unen­
closed land of another, after notice from the owner or 
tenant prohibiting the same shall be a misdemeanor.”
An Amendment of 1883 left out the words “the en­

closed or unenclosed” and added punishment by fine of not



Bouie et al,  Petitioners, v . City op Columbia, Respondent 5

more than $100.00 or imprisonment of not more than 30 
days, 1883 Acts, etc. of South Carolina (18), page 43.

An Amendment of 1898 made the posting and publish­
ing of notice conclusive as to those making entry for hunt­
ing and fishing. 1898 Acts, etc. of South Carolina (22), 
page 811.

The Amendment of 1954 was tied in with an Amend­
ment to Section 16-355 increasing the penalty for larceny 
of livestock and as such added the words “where any horse, 
mule, cow, hog or any livestock is pastured, or any other 
lands of another”, eliminated the requirement for publish­
ing the notice and changed the conclusiveness of notice 
from the purpose of hunting and fishing to that of tres­
passing. 1954 Acts, etc. of South Carolina (48), page 1705.

The section thus read at the time petitioners were ar­
rested in 1960, as follows:

“Sec. 16-386. Entry on lands of another after no­
tice prohibiting same. Every entry upon the lands of 
another where any horse, mule, cow, hog, or any other 
livestock is pastured, or any other lands of another, 
after notice from the owner or tenant prohibiting such 
entry, shall be a misdemeanor and be punished by a 
fine not to exceed one hundred dollars, or by imprison­
ment with hard labor on the public works of the county 
for not exceeding thirty days. When any owner or ten­
ant of any lands shall post a notice in four conspicuous 
places on the borders of such land prohibiting entry 
thereon, a proof of the posting shall be deemed and 
taken as notice conclusive against the person making 
entry as aforesaid for the purpose of trespassing.”
The pertinent language, however, has remained the 

same for many years: “Every entry upon lands of another 
* * * after notice from the owner or tenant prohibiting such 
entry, shall be a misdemeanor. * * *”



6 Bouie et al., Petitioners, v. City of Columbia, Respondent

The South Carolina Supreme Court made no strained 
nor novel interpretation in applying the section to peti­
tioners. In Webster’s New International Dictionary (Sec­
ond Edition) “land” as used in “law” is defined as follows:

“a. Any ground, soil, or earth whatsoever, re­
garded as the subject of ownership, as meadows, pas­
tures, woods, etc. and everything annexed to it, whether 
by nature, as trees, water, etc., or by man as buildings, 
fences, etc., extending indefinitely vertically upwards 
and downwards.

“b. An interest or estate in land, loosely, any tene­
ment or hereditament.”
And the South Carolina Supreme Court simply fol­

lowed the common law rule as stated in the Lazarus and 
Walker cases, supra, in applying the rule that a person may 
become a trespasser by refusing to leave even though his 
entrj7 may have been lawful. City v. Mitchell, filed Dec. 13 
1961, 239 S. C. 376, 123 S. E. (2d) 512.

II
The Decision of the Supreme Court of South Carolina 

Granted Petitioners All Rights to Freedom of Expression 
to Which They Were Entitled Under the Fourteenth 
Amendment to the Constitution of the United States.

There is no question but if a White man or a group of 
White men had gone into Eckerd’s drug store on the day 
in question, had sat down, expecting service, had been 
told that they would not be served, and were further asked 
to leave but refused to do so, that they would have been 
guilty of violating Sec. 16-386 of the Code of Laws of 
South Carolina, 1952, as amended.

If Petitioners’ argument is understood, however, Peti­
tioners urge that because they were Negroes and the own­
ers of the luncheonette White, their right to protest ex­
ceeded their right to be served.



Bouie et a l, Petitioners, v . City of Columbia, Respondent 7

Is the right to protest greater than the right to agree! 
The Fourteenth Amendment states simply and clearly 
that no State shall “deny to any person within its jurisdic­
tion the equal protection of the laws.”

The “freedoms” guaranteed by the Constitution do 
not give a person a license to stand in a prohibited place 
to protest where he could not have stood to agree. Rather, 
the Constitution guarantees that a person standing where 
he has a right to stand, shall not be moved from that place 
by the State because of his protest, if his protest is within 
the protection of the Constitution.

As a practical matter, however, Petitioners were per­
mitted to give full range to their protest. As they state on 
pages 16 and 17 of their Petition for Writ of Certiorari:

“Petitioners were engaged in the exercise of free 
expression by means of nonverbal requests for nondis- 
criminatory lunch counter service which were implicit 
in their continued remaining at the lunch counter when 
refused service. The fact that sit-in demonstrations are 
a form of protest and expression was observed in Mr. 
Justice Harlan’s concurrence in Garner v. Louisiana, 
supra. Petitioners’ expression (asking for service) was 
entirely appropriate to the time and place at which it 
occurred. Petitioners did not shout, obstruct the con­
duct of business, or engage in any expression which 
had that effect. There were no speeches, picket signs, 
handbills or other forms of expression in the store 
which were possibly inappropriate to the time and 
place. Rather petitioners merely expressed themselves 
by offering to make purchases in a place and at a time 
set aside for such transactions.”
The owner told them that they would not be served and 

asked them to leave. It was only after they refused to com­
ply with this request that they were arrested.



8 Bouie et al., Petitioners, v . City op Columbia, Respondent

What more did petitioners want to do to express their 
protest? Continue to sit? For how long? Who decides when 
they shall leave?

This was not a street, private or otherwise, as was in­
volved in Marsh v. Alabama, 326 TJ. S. 501, 66 S. Ct. 276, 
90 L. Ed. 265, where a person enters and stands as a mat­
ter of right but a private luncheonette in local commerce 
where a person enters and stands (or sits) upon invitation, 
express or implied, of the owner. The law decides how long 
a person has the right to remain on a street but the owner 
decides who shall remain in his store, and how long.

CONCLUSION
In conclusion, it is respectfully submitted that the Su­

preme Court of South Carolina decided all federal ques­
tions of substance in the case in accordance with applicable 
decisions of this Court and the Petition for Writ of Cer­
tiorari should be denied.

All of which is respectfully submitted.
JOHN W. SHOLENBERGER, 

City Attorney,
EDWARD A. HARTER, JR., 

Assistant City Attorney, 
Columbia, S. C.,

Attorneys for Respondent.
OF COUNSEL:
DANIEL R. McLEOD,

Attorney General of South 
Carolina,

Columbia, South Carolina.
Columbia, S. C.,
November 27,1962.