Hamm v. City of Rock Hill Brief for Respondent

    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