Hamm v. City of Rock Hill Brief for Respondent
Public Court Documents
January 1, 1964

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Brief Collection, LDF Court Filings. Hamm v. City of Rock Hill Brief for Respondent, 1964. 4872d346-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/18846433-7c3b-4b4e-89a3-511764fd5b0c/hamm-v-city-of-rock-hill-brief-for-respondent. Accessed May 15, 2025.
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IN T H E Supreme Court of the United States October T erm , 1964 No. 2 ARTHUR HAMM, JR., P etitioner, versus CITY OF ROCK HILL On W rit oe Certiorari to the S upreme Court oe the S tate of S outh Carolina BRIEF FOR RESPONDENT, CITY OF ROCK HILL DANIEL R. McLEOD, Attorney General of South Carolina, EVERETT N. BRANDON, Assistant Attorney General of South Carolina, Wade Hampton State Office Building, Columbia, South Carolina, Attorneys for Respondent. Th® R. L. Bryan Company, Legal Printers, Columbia, S. G. INDEX P age Statement ...................................................................... 1 Argument: I. Enactment of the Civil Rights Act of 1964 has no effect on this conviction, since by its terms it does not purport to invalidate any provision of State law, unless such provision is inconsistent with any of the purposes of the Act, or any pro vision thereof. The case of Bell v. Maryland is inapplicable, since the remand there w7as for the purpose of considering the effect of a state law . 2 II. There has been no showing of any state action as defined in any previous decision of this Court which would invalidate petitioner’s conviction. The decision to discriminate was a purely pri vate decision not proscribed by the Fourteenth Amendment to the Constitution of the United States ................................................................... 5 III. Petitioner has failed to preserve for review in this Court, in connection with the failure to re quire the State to elect at the outset the statute relied upon, any question of due process under the Fourteenth Amendment to the Constitution of the United States. The question of due proc ess and equal protection of the laws under the Fourteenth Amendment wTas not raised by peti tioner in the Supreme Court of South Carolina; nor was it decided by that Court without being raised. Consequently, this argument cannot now be made in this C ou rt....................... ................. 7 Conclusion ...................................................................... 9 Appendix A: City of Rock Hill v. Hamm, Appellant’s Brief . . . . 13 ( i ) IN T H E Supreme Court of the United States October T erm , 1964 No. 2 ARTHUR HAMM, JR., P etitioner, versus CITY OF ROCK HILL On W rit of Certiorari to the S upreme Court of the S tate of S outh Carolina BRIEF FOR RESPONDENT, CITY OF ROCK HILL STATEMENT Petitioner, a Negro, along with one Reverend C. A. Ivory, also a Negro, now deceased, entered a ten cent store in Rock Hill, South Carolina, on June 7, 1960. Ivory, a crippled person, was pushed in a wheel chair by petitioner. They made a purchase or two, and then proceeded to the lunch counter, where petitioner seated himself. Service of food was sought, which was refused. They were then asked to leave the store (R. Hamm 78) by the store manager, and 2 Hamm, Petitioner, v . City of Rock Hill they refused to do so. Petitioner testified that the police requested the manager to ask him to leave. The police tes tified that the manager asked petitioner to leave on two oc casions (R. Hamm 14, 21), and then the police asked him to leave before arresting him. The manager (R. Hamm 63, 64) was explicit in his testimony that he was the first to ask petitioner to leave. Petitioner was tried in the Recorder’s Court of the City of Rock Hill, without a jury, upon a stipulation that the testimony which had been adduced at the trial of the Reverend Ivory, now deceased, would be applicable to him. (R. Hamm 1.) He was found guilty by the City Recorder and sentenced to pay a fine of $100.00 or serve thirty days. The conviction was affirmed by the Court of General Ses sions on December 29, 1961, and by the Supreme Court of South Carolina on December 6, 1962. Rehearing was denied on January 11, 1963. The decision of the Supreme Court of South Carolina is reported at 241 S. C. 446, 128 S. E. (2d) 907. ARGUMENT I. Enactment of the Civil Rights Act of 1964 has no effect on this conviction, since by its terms it does not pur port to invalidate any provision of State law, unless such provision is inconsistent with any of the purposes of the Act, or any provision thereof. The case of Bell v. Maryland is inapplicable, since the remand there was for the purpose of considering the effect of a state law. The Civil Rights Act of 1964 by its terms does not abate this prosecution: Section 1104. Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which, any such title operates to the exclusion of State laws, nor shall any provision of this Act be construed as invali dating any provision of State law unless such provi- Hamm, Petitioner, v . City of Kock Hill 3 sion is inconsistent with any of the purposes of this Act, or any provision thereof. (Emphasis added.) 78 Stat. 268. On reason, Section 16-388 of the South Carolina Code of Laws for 1962, under which petitioner was convicted, is not inconsistent with any purpose or provision of the Civil Rights Act of 1964. The most apparent relevant purpose is set forth in the title of the Act: * * * “to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations” * * * 78 Stat. 241. Section 16-388 of the South Carolina Code of Laws became effective on May 16, 1960, as an original Act and not as an amendment to any existing statute. It reads as follows: Entering premises after warning or refusing to leave on request; jurisdiction and enforcement.—Any person who, without legal cause or good excuse, enters into the dwelling house, place of business or on the premises of another person after having been warned within six months preceding not to do so or any per son who, having entered into the dwelling house, place of business or on the premises of another person with out having been warned within six months not to do so, fails and refuses, without good cause or good ex cuse, to leave immediately upon being ordered or re quested to do so by the person in possession or his agent or representative shall, on conviction, be fined not more than one hundred dollars or be imprisoned for no more than thirty days. All municipal courts of this State as well as those of magistrates may try and determine criminal cases involving violations of this section occurring within the respective limits of such municipalities and magi sterial districts. All peace officers of the State and its subdivisions shall enforce the provisions hereof within their respective jurisdictions. 4 Hamm, Petitioner, v . City of Rock Hill The provisions of this section shall be construed as being in addition to, and not as superseding, any other statutes of the State relating to trespass or en try on lands of another. (1960 (51) 1729) 51 S. C. Stat, Act No. 743, at 1729-1730 (1960). It was not unlawful at the time of petitioner’s convic tion and is not now unlawful for a Negro to seek the serv ice of food at a restaurant which customarily does not serve Negroes. Petitioner was not convicted for attempting to secure service; he was convicted for failing to obey a lawful request that he leave the premises where he sought service. The consistency of the two provisions is apparent. Having made his request for service, and having been re fused, it then became petitioner’s duty to leave the prem ises upon being requested to do so by one in authority. He was then in a position to take such action as was available to him. At the time of this occurrence, none was available; now he has the Civil Eights Act of 1964 which provides for injunctive relief in a proper case. The Civil Eights Act does not give the right to trespass, either retroactively or prospectively. The reason for this is obvious; the law re quires that peaceful means always be employed where pos sible. This is true no matter how substantial the right sought to be enforced. For example, to recover the posses sion of personal property from one wrongfully withhold ing, resort must be had to the courts if peaceful possession cannot be had. Only injunctive relief is available under the Civil Eights Act of 1964; it serves no purpose whatsoever for one seeking service to adamantly remain after being requested to leave, other than to increase the possibility that some intemperate action might result. Admittedly, South Carolina would abate this convic tion if the conduct penalized here were removed from the category of crimes. State v. Spencer, 177 S. C. 346, 181 S. E. 217. That, however, is not the case here. The language Hamm, Petitioner, v . City of Rock Hill 5 from Bell v. Maryland, 12 L. Ed. (2d) 822, describing the substitution of a right for a crime, and vice versa, is not applicable here. The Civil Eights Act of 1964 imposes no criminal sanctions on one violating the provisions thereof; neither does it give one seeking its shelter the right to vio late laws not reasonably inconsistent therewith. There is language in Bell, supra, at page 829, which affords a solid basis for sustaining the right of a state to keep law and order by enforcing its laws impartially, as was done in the case at bar. In discussing the effect of saving clauses, the Court speaks of the different results ob taining by the use of “shall” or “is” in legislation, and cites a Maryland decision, Beard v. State, 74 Md. 130, 21 A. 700, holding that the use of “shall” rather than “is” con notes an obvious intention not to interfere with past of fenses. The Civil Eights Act of 1964 repeatedly uses “shall” throughout. Is that not indicative of a Congres sional intent that it operate prospectively? And is it not reasonable that one seeking to bring himself under the pro tection of the Act, having demanded his rights thereunder, must thereafter follow the procedure set forth therein; namely, a civil action for preventive relief? This course would contravene no definitive portion of the Act, and would contribute immeasurably to the efforts of an enlight ened state to maintain law and order impartially. It is re spectfully urged that this is the rule of reason and of law. II. There has been no showing of any state action as defined in any previous decision of this Court which would invalidate petitioner’s conviction. The decision to discrimi nate was a purely private decision not proscribed by the Fourteenth Amendment to' the Constitution of the United States. The only ground urged by petitioner upon the Su preme Court of South Carolina to support his claim of Hamm, Petitionee, v . City of Rock Hill state action under the Fourteenth Amendment was that the use of police officers to arrest and judicial machinery to convict constitutes state action. This contention has never been recognized by this Court, and it has had re peated opportunity to do so, the last being on June 22, 1964, when five decisions were announced. Griffin v. Mary land, Barr v. Columbia, Robinson v. Florida, Bell v. Mary land, and Bouie v. Columbia, 12 L. Ed. (2d) at pages 754, 766, 771, 822, and 894, respectively. It is respectfully urged that the record discloses noth ing which can reasonably be argued as constituting state action. There was no city ordinance, no state law, no offi cial or unofficial proclamation of anyone in authority urg ing a policy of segregation. Petitioner in his brief goes completely outside the record and argues that custom dictated by state policy re quires segregation; that states are affirmatively required to end all discrimination by the Fourteenth Amendment; that no genuinely private concern is here involved. We think the simple answer is that a constitutional provision is here under consideration and that constitutional princi ples should apply. Petitioner relies heavily on Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 836. The dissenting opin ion of Mr. Justice Black, joined by Mr. Justice Harlan and Mr. Justice White, in Bell v. Maryland, supra, effectively disposes of any tenable argument that the case at bar in volves “state action” under Shelley v. Kraemer. It is fur- further noted that the brief of the Solicitor General as amicus curiae in Bell v. Maryland agrees that the use of judicial machinery in and of itself is not “state action”. Petitioner argues, somewhat speciously, that he was only ordered to leave, but not to leave the premises, and therefore that his conduct proved does not conform to the Hamm, Petitionee, v . City of Rock Hill 7 statutory prohibition. The short answer to this is found in the record (R. Hamm 78): Q. And did the manager in the presence of the officers ask you to leave the store? (Emphasis added.) A. In the presence of the officers, after the officer had requested him to do so. If it be contended that a request by the officers that the manager ask petitioner to leave constitutes state action, how could an officer ever know that a person had in faet been requested to leave! Petitioner’s contention that the statute fails to fairly warn of prohibited conduct under the rule of Borne v. Co lumbia, 12 L. Ed. 894, is manifestly without merit. III. Petitioner has failed to preserve for review in this Court, in connection with the failure to require the State to elect at the outset the statute relied upon, any question of due process under the Fourteenth Amendment to the Constitution of the United States. The question of due process and equal protection of the laws under the Fourteenth Amendment was not raised by petitioner in the Supreme Court of South Carolina, and it was not decided by that Court without being raised. Consequently, the argu ment cannot now be made in this Court. It is respectfully urged that petitioner here argues only a question of a State Court’s determination of a pro cedural question. No attempt was made on appeal to the Supreme Court of South Carolina to argue a due process or equal protection violation under the Fourteenth Amend ment. City of Bock Hill v. Hamm, Appellant’s Brief, Ap pendix A. Under the settled practice in this Court, Beck v. Washington, 369 U. S. 541, 8 L. Ed. (2d) 98, 82 S. Ct. 955, that argument cannot be considered. The question was neither raised nor decided by the Supreme Court of South Carolina; nor did it refuse to decide the question because Hamm, Petitioner, v . City of Rock Hill of some technical failure to comply with a rule. The ques tion was simply not before the Supreme Court of South Carolina in any form. Respondent, while relying on its jurisdictional objec tion, nevertheless urges that there is no merit to peti tioner’s contention. Petitioner in his brief (P. 82) speaks of “this confusing record”, but he, in no small measure, contributes to the confusion. On page 82 of his brief he at tempts to make something of the fact that the order of the Supreme Court of South Carolina granting him a stay re cites that he was convicted of the common law offense of breach of the peace. This order was prepared by petition er’s counsel and consented to by counsel for respondent. The recitation therein is meaningless, and the blame, if any, must at least be shared by petitioner. What is of significance is the fact that petitioner was not tried before a jury, but was convicted by the City Re corder (R. Hamm 1) upon a stipulation that the testimony adduced at the trial of his companion would apply to him. Upon the death of the Reverend C. A. Ivory, the Transcript of Record should have been amended to delete all refer ence to jury charges and jury verdicts. This was not done, and consequently the Supreme Court of South Carolina treated the case as if a jury had convicted petitioner. A stipulation can only bind the parties. It can no more be stipulated that a jury will convict than that a judge will find a person guilty on a particular state of facts. This con fusing state of the record is at least equally the fault of petitioner. Stripping the record of its surplusage relating to ver dicts and jury charges, we have the petitioner being con victed of trespass by the Court without a jury. A trial judge is not required to charge the law to himself. As the opinion of the Supreme Court states, it is manifest that the City Recorder relied on Section 16-388(2) of the Code. Hamm, Petitioner, v . City of Rock Hill 9 This section is now 16-388. It is clear that there was an abundance of evidence upon which to convict. Under Sec tion 17-502 of the South Carolina Code it is equally clear that petitioner could be tried one time, and one time only for his actions. Sec. 17-502: Double jeopardy after trial in minor court.— Whenever a municipal court or a magistrate’s court shall have acquired jurisdiction by reason of a person committing an act which is alleged to be in violation of a municipal ordinance and which is in violation of the criminal law of this State a conviction or an ac quittal by the first court acquiring jurisdiction shall be a complete bar to a trial by another court for the same alleged unlawful act or acts. (1952 Code § 17-502; 1942 Code § 994; 1932 Code § 994; 1928 (35) 1317.) It is respectfully urged that no substantial question has been raised and that such question that has been raised cannot be considered in this Court. CONCLUSION For the reasons stated the judgment of the Supreme Court of South Carolina should be affirmed or in the alter native the Writ should be dismissed. Respectfully submitted, DANIEL R. McLEOD, Attorney General of South Carolina, EVERETT N. BRANDON, Assistant Attorney General of South Carolina, Wade Hampton State Office Building, Columbia, South Carolina, Attorneys for Respondent. APPENDIX THE STATE OF SOUTH CAROLINA IN THE SUPREME COURT APPEAL FROM YORK COUNTY H onorable G-eorge T. Gregory, J r., J udge CITY OF ROCK HILL, R espondent, versus ARTHUR HAM M , JR., A ppellant APPELLANTS’ BRIEF WILLIE T. SMITH, JR., Greenville, South Carolina, DONALD JAMES SAMPSON, Greenville, South Carolina, JENKINS & PERRY, Columbia, South Carolina, Attorneys for Appellant. INDEX P age Questions Involved ........................................................ 15 Statement ........................................................................ 16 Argument: Question I ............................................................... 17 Question II .................................................... ig Question II A ................................................... 18 Conclusion ....................................................................... 22 ( 1 4 ) QUESTIONS INVOLVED 1. Did the Court err in refusing to require the City of Rock Hill to elect as to which law it would proceed upon? (Exceptions 1 and 2.) 2. Did the Court err in refusing to hold that the evi dence shows conclusively that by arresting appellant, the officers of the City of Rock Hill were aiding and assisting the owners and management of McCrory’s five and ten cent store in maintaining their policy of segregating or excluding service to Negroes at their lunch counters on the ground of race or color, in violation of appellant’s right to due process of law and equal protection of the laws, secured by the Fourteenth Amendment to the United States Con stitution? (Exceptions 3, 4 and 5.) A. Whether the enforcement of segregation in this case was by State action within the meaning of the Fourteenth Amendment. ( 1 5 ) 16 Hamm, Petitioner, v . City of Rock Hill STATEMENT On June 7, 1960, appellant, along with. Rev. C. A. Ivory, now deceased, entered the premises of MeCrory’s 5 & 10 Cent Store in Rock Hill, South Carolina. Rev. I vory was a cripple and confined to a wheel chair, and was pushed into the store by the appellant. Appellant, along with Rev. Ivory, proceeded down the aisles where they made one or two purchases. Thereafter, they proceeded over to the end of the lunch counter near the front of the store where Rev. Ivory, still in his wheel chair, came to a stop at said coun ter. The appellant, Hamm, took a seat on a stool at the lunch counter. Both appellant and Rev. Ivory sought to be served at the lunch counter. They were not served and, in fact, were told by the management that they could not be served and would have to leave.* (Tr. p. 16, f. 63.) The appellant and Rev. Ivory refused to leave and remained seated at the lunch counter. They were orderly in every respect except for the refusal to leave (Tr. p. 24, f. 95). Shortly after appellant’s and Rev. Ivory’s arrival at the lunch counter, City police officers entered the prem ises and placed both under arrest. The arrests of both were made without the manager of McCrory’s 5 & 10 Cent Store having requested same (Tr. p. 29, f. 114). Appel lant and Rev. Ivory were thereupon charged with trespass after notice. There were members of the white race seated at the lunch counter who were being served and no request was made that they leave nor were they told that they could not be served (Tr. p. 39, f. 155). Rev. Ivory was tried in the Recorder’s Court for Rock Hill on June 29, 1960 before a jury who returned a verdict of guilty and thereupon Rev. Ivory was sentenced to pay a fine of $100.00 or serve thirty days in the City jail. No tice of intention to appeal was duly served upon the City Recorder. * The evidence shows conclusively that this statement was made pursuant to McCrory’s policy of not serving Negroes at its lunch counter. Appendix 17 Thereafter, by stipulation, it was agreed that the tes timony which was offered in the case against Rev. C. A. Ivory was the same which would be offered in the case against the appellant, Arthur Hamm. The appellant, Hamm, was thereupon found guilty and sentenced to pay a fine of One Hundred Dollars ($100.00) or serve thirty days in prison. Notice of intention to appeal was thereupon duly served upon the City Recorder. Thereafter the matter was argued before Honorable George T. Gregory, Jr., Residing Judge, Sixth Judicial Circuit. On December 29, 1961, Judge Gregory issued an order affirming the convictions by the Recorder’s Court of the City of Rock Hill. Notice of Intention to appeal was thereupon duly served upon the City Attorney. Question I Did the Court err in refusing to require the City of Rock Hill to elect as to which law it would proceed upon? (Exceptions 1 and 2.) The warrant charges that appellant, along with Rev. C. A. Ivory, now deceased, committed the act of trespass at McCrory’s variety store on June 7, 1960. No designa tion of the specific statute or ordinance is found in the affidavit which is a part of the warrant. Two statutes and one ordinance defined and pro scribed criminal trespass, and, at the commencement of the trial, appellant’s counsel moved to require the City to elect or specify as to which law it would proceed upon (Tr. pp. 6-13, ff. 21-49). The Court refused to require an election and observed that the “warrant informs the de fendant what he is charged with” (Tr. p. 13, f. 49). At the conclusion of the trial, the jury returned the follow ing verdict: “We find the defendant guilty” (Tr. p. 112, f. 445). Thus, appellant was arrested and tried under a warrant which vaguely set forth the offense charged by referring to its generic name (trespass) and was later in formed that the term trespass included acts proscribed by (1) The act of 1960, now codified as Sec. 16-388, Code 18 Hamm, Petitioner, v . City op Rock Hill of Laws of South Carolina, 1962; (2) Section 16-386, Code of Laws of South Carolina, 1952; and (3) Chapter 19, Sec tion 12, Code of the City of Rock Hill (Tr. p. 116, ff. 462- 464). Appellant submits that he was entitled to an election by the City as to which of the criminal laws above set forth, under which he would be tried. State v. Butler, 230 S. C. 159, 94 S. E. (2d) 761. Since all of the criminal laws above set forth impose penalties upon conviction of thirty days imprisonment or One Hundred ($100.00) Dollars fine, the Recorder had jurisdiction but, under 43-114, Code of Laws of South Caro lina, the Recorder should have required the City to elect. See also Section 15-902 and Section 17-502, Code of Laws of South Carolina for 1952. Question II Did the Court err in refusing to hold that the evidence shows conclusively that by arresting appellant, the officers of the City of Eock Hill were aiding and assisting the owners and management of McCrory’s Five and Ten Cent Store in maintaining their policy of segregating or exclud ing service to Negroes at their lunch counters, on the ground of race or color, in violation of Appellant’s right to due process of law and equal protection of the laws, se cured by the Fourteenth Amendment to the United States Constitution? (Exceptions 3, 4 and 5.) A. Whether the enforcement of segregation in this case was by State action witliin the meaning of the Fourteenth Amendment. The evidence presented is to the effect that MeCrory’s Five and Ten Cent Store is a large variety store which sells thousands of items to the public at its Rock Hill, South Carolina store. It invites all members of the public into its premises to do business and serves all persons who re spond to tbe invitation to do business courteously and without regard to race, except at its lunch counter, which is operated for white persons only. Appendix 19 The store manager testified that the exclusion of Ne groes from lunch counters in McCrory’s and similar stores in Rock Hill is in accordance with local custom. When the appellant seated himself at the lunch coun ter, he was told within a short time thereafter that he could not be served and that he would have to leave and subsequently was placed under arrest. It is respectfully submitted that the evidence presented in this matter shows conclusively that by arresting the appellant, the officers of the City of Rock Hill were aiding and assisting the management of McCrory’s Five and Ten Cent Store in maintaining its policy, and the policy of the City of Rock Hill and the State of South Carolina, of racial segregation. Therefore, the arrest and conviction of appellant under the circumstances shown herein con travenes the Fourteenth Amendment’s interdiction against State enforced racial segregation. The application of a general, nondiseriminatory and otherwise valid law to effectuate a racially discriminatory policy of a private business or agency, and the enforce ment of such an discriminatory policy by the State govern mental organs, has been held repeatedly to be a denial by State action of rights secured by the Fourteenth Amend ment. Thus, in Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 835, the judicial enforcement of private raci ally restrictive covenants by injunctions was held violative of the Fourteenth Amendment. And, in Barrous v. Jack- son, 346 IT. S. 249, . .. L. Ed. . . . , . . . S. Ct., it was held that such covenants could not be enforced, consistent with the Fourteenth Amendment, by the assessment of damages for their breach. In Marsh v. Alabama, 326 U. S. 501, 90 L. Ed. 265, 66 S. Ct. 276, the Supreme Court held that the criminal Courts could not be used to convict for trespass persons exercising their rights of free speech in a privately owned company town. Nor is it material to assert that the State judicial action which enforces the denial of rights guaranteed by the Fourteenth Amendment are procedurally fair. Such action is constitutionally proscribed “even though the judicial proceedings. . . . may have been in complete accord with 20 Hamm, Petitioner, v . City op Rock Hill the most rigorous conceptions of procedural due process.” Shelley v. Kraemer, supra. See also Bridges v. California, 314 U. S. 252; American Federation of Labor v. Swing, 312 U. S. 321; Cardwell v. Connecticut, 310 U. S. 296. Sim ilarly, it is no answer to say that the same Court (Record er’s Court) stands ready to convict non-Negro citizens of trespass and breach of the peace should they refuse to leave a business establishment similar to McCrory’s five and ten cent store from whose lunch facilities they have been ex cluded solely because of race or color. “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights estab lished are personal rights. . . . Equal protection of the laws is not achieved through indiscriminate imposition of inequities.” Shelley v. Kraemer, supra. The right not to be excluded solely on account of race from facilities open to the public has been held to extend to such accommodations as public beaches and bathhouses (Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877, 100 L. Ed. 744, 76 S. Ct. 133 affirming 220 F. (2d) 368); golf course (Holmes v. City of Atlanta, 350 U . S. 879, 100 L. Ed. 766, 76 S. Ct. 141, reversing 223 F. (2d) 93); park and recreational facilities (New Orleans City Bark Improvement Assn. v. Detiege, 358 U. S. 54, 3 L. Ed. (2d) 46, 79 S. Ct. 228, affirming 252 F. (2d) 123); and theaters (Muir v. Louisville Park Theatrical Ass’n, 347 U. S. 971, 98 L. Ed. 1112, 74 S. Ct. 783, reversing 202 F. (2d) 275, and remanding for consideration in light of Brown v. Board of Education, 347 U. S. 483, and “Condi tions that now prevail”). A restaurant, like a theater, a common carrier, a school, a beach, a pool, a park, or a golf course, is a place of public accommodation. Federal Courts have held, there fore, that rights guaranteed by the equal protection clause are contravened when a private lessee of a state-owned restaurant engages in a racially discriminatory practice. Derrington v. Plummer, 240 F. (2d) 924. Where the State enforces or supports racial discrimi nation in a place open for use of the general public, it in fringes Fourteenth Amendment rights notwithstanding the Appendix 21 private origin of the discriminatory conduct. Muir v. Louis ville Park Theatrical Ass’n, supra. Nor, we submit, is it relevant that the property upon which discrimination occurs is privately owned. State laws which require or permit segregation of the races on pri vately owned intrastate motor buses are invalid under the Fourteenth Amendment. Gayle v. Browder, 352 IJ. S. 903, 1 L. Ed. (2d) 114, 77 S. Ct. 145, Fleming v. South Carolina Electric <& Gas Co., 224 F. (2d) 752, appeal dismissed 351 U. S. 901,100 L. Ed. 1439, 76 S. Ct. 692, Racial discrimina tion by a privately owned place of public accommodation may also violate Fourteenth Amendment rights if such place is financially supported or regulated by the State, Kerr v. Enoch Pratt Free Library, 149 F. (2d) 212, cer tiorari denied, 326 IT. S. 721. It is respectfully submitted that restrictions have long been placed upon proprietors whose operations are of a public nature, affecting the community at large. In Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, the Supreme Court of the United States said: “Property does become clothed with a public in terest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the interest he has thus created. . . Similarly, in Marsh v. Alabama, supra, the Court said: “Ownership does not always mean absolute do minion. The more an owner, for his advantage, opens up his property for use by the public by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. . . .” Justification for invasion of the right to be free from State enforcement of racially discriminatory practices can be supported, if at all, only where the constitutional right is subordinated to a countervailing right or interest so 22 Hamm, Petitioner, v . City of Rock Hill weighty as to occupy a preferred constitutional status. Cf. Kore-Matsu v. United States, 323 U. S. 214. The nar row issue in the present case is not whether the right, for example, of a homeowner to chose his guests (as is argued by the City) should prevail over defendant’s constitutional right to be free from the state enforcement of a policy of racial discrimination, but, rather, whether the interest of a proprietor, or management, who has opened up his busi ness property for use by the general public . . . in par ticular, by the persons invited in to trade at numerous departments in drug stores . . . should so prevail. Since the conviction of this appellant resulted from the racially discriminatory policy of the management of McCrory’s five and ten cent store and the official interven tion and aid of the police of the City of Rock Hill, it is submitted that it cannot stand and should be reversed by this Court. CONCLUSION For the reasons herein stated, the judgment of the Court of General Sessions for York County affirming the judgment of the Recorder’s Court of the City of Rock Hill should be reversed. Respectfully submitted, WILLIE T. SMITH, JR., DONALD JAMES SAMPSON, JENKINS & PERRY, Attorneys for Appellant. V