Northwest Austin Municipal Utility Distr. One v. Holder Brief of Amici Curiae of Jurisdictions

    p

I n the

(&mvt at tin
Octobeb T eem, 1961 

No................

S imon B ouie and T almadge J. Neal,

Petitioners,
—v.—

City of Columbia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack Geeenbeeg 
Constance B aker Motley 
J ames M. Nabrit, I I I  
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J . P erry 
L incoln C. J enkins, J r,

1107% Washington Street 
Columbia, South Carolina

Attorneys for Petitioners



I N D E X

PAGE

Citations to Opinions Below .........................................  1

Jurisdiction ....................................................................  2

Questions Presented ...................................................... 2

Statutory and Constitutional Provisions Involved........ 3

Statement ........................................................................ 3

How the Federal Questions Were Raised and Decided 6

Reasons for Granting the W rit.....................................  10
I. The Decision Below Conflicts With Prior De­

cisions of This Court Which Condemn the Use 
of State Power to Enforce Racial Segregation 10

II. The Decision Below Conflicts With Decisions 
of This Court Securing the Right of Freedom 
of Expression Under the Fourteenth Amend­
ment to the Constitution of the United States 16

Conclusion ...................................................................... 27

A p p e n d ix

Opinion of the Columbia Recorder’s Court..................  la
Opinion of the Richland County C ourt.......................... 3a
Opinion of the Supreme Court of South Carolina........  10a
Denial of Rehearing by the Supreme Court of South 

Carolina.......................................................................  14a



11

Table of Cases
PAGE

Abrams v. United States, 250 U. S. 616......................... 17

Boynton v. Virginia, 364 U. S. 454 ................................  11
Breard v. Alexandria, 341 U. S. 622 ...... ...............—14,17
Buchanan v. Warley, 245 U. S. 6 0 ................................ 12
Burton v. Wilmington Parking Authority, 365 U. S.

715 ............................................................................... 13

Cantwell v. Connecticut, 310 U. S. 296 ........................... 26
Champlin Rev. Co. v. Corporation Com. of Oklahoma,

286 U. S. 210..............................................................  26
Chaplinsky v. New Hampshire, 315 U. S. 568 .............. 25
City of Charleston v. Mitchell, —— S. C. ----- , 123

S. E. 2d 512 (Petition for Writ of Certiorari No. 846
filed 30 U. S. L. Week 3324) ................................... 10,11

City of Columbia v. B arr,----- S. C .------ , 123 S. E. 2d
521 (Petition for Writ of Certiorari No. 847 filed
30 U. S. L. Week 3324) ............................................ 10,11

City of Greenville v. Peterson, -----  S. C. ——, 122
S. E. 2d 826 (Petition for Writ of Certiorari No. 750
filed 30 U. S. L. Week 3274) ................................9,11, 21

Civil Rights Cases, 109 U. S. 3 ................................... 11,15

District of Columbia v. John R. Thompson Co., 346 
IJ. S. 100...................................................................... 13

Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ................ 18

Garner v. Louisiana, 368 U. S. 157 ...... 13-14,15,16,18, 26
Goldblatt v. Town of Hempstead, 30 U. S. L. Week 

4343 12



Ill

PAGE

Herndon v. Lowry, 301 U. S. 242 ........................... .23, 24, 25
Hudson County Water Co. v. McCarter, 209 U. S. 349 16

Lanzetta v. New Jersey, 306 U. S. 451 ........................ 22, 24

Mapp v. Ohio, 367 U. 8. 643 ..................................... . 14
Marsh v. Alabama, 326 U. S. 501...................................12,18
Martin v. Struthers, 319 U. S. 141 ................................ 17
McBoyle v. United States, 283 U. S. 25 .......................23, 25
Monroe v. Pape, 365 U. S. 167 .....................................  11
Munn v. Illinois, 94 U. S. 113......................................... 12

N. A. A. C. P. v. Alabama, 357 U. S. 449 ....................... 17
Napue v. Illinois, 360 H. S. 264 ...................................  11
N. L. E. B. v. American Pearl Button Co., 149 F. 2d

258 (8th Cir. 1945) ..................................................  18
N. L. E. B. v. Fansteel Metal Corp., 306 U. S. 240 ........  18

People v. Barisi, 193 Misc. 934, 83 N. Y. S. 2d 277 (1948) 18 
People v. King, 110 N. Y. 419, 18 N. E. 245 (1888),

Annotation 49 A. L. E. 505 .....................................  13
Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49

A. L. E. 449 (1926) ..................................... ..............  13
Pierce v. United States, 314 U. S. 206 ........................ 22, 24
Poe v. Ullman, 367 U. S. 497 ......................................... 14

Eailway Mail Assn. v. Corsi, 326 U. S. 88.....................  13
Bepublic Aviation Corp. v. N. L. E. B., 324 U. S. 793....12,18

Schenck v. United States, 249 U. S. 4 7 ........................  19
Screws v. United States, 325 U. S. 91............................  11
Shelly v. Ivraemer, 334 U. S. 1 ................. ................... 11,12
Shramek v. Walker, 149 S. E. 331.................................. 8
State v. Gray, 76 S. C. 83 ..............................................  20



IV

PAGE

State v. Green, 35 S. C. 266   ................................... 20
State v. Hallback, 40 S. C. 298 .......................................  20
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Bel. Bef. Man. 2357 (1959) ..........................  18
State v. Mays, 24 S. C. 190........................................... 20
State v. Tenney, 58 S. C. 215......................................... 20
Stromberg v. California, 283 U. S. 359 ......................... 17

Thompson v. City of Louisville, 362 U. S. 199.............. 21
Thornhill v. Alabama, 310 U. S. 88 .........................14,17,18

United States v. Cardiff, 344 U. S. 174 .......................23, 24
United States v. L. Cohen Grocery Co., 255 U. S. 81....23, 24
United States v. Weitzel, 246 U. S. 533 ......................... 23
United States v. Willow Biver Power Co., 324 U. S.

499 ............................................................................... 12
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 23

Western Turf Asso. v. Greenberg, 204 U. S. 359 ..........  13
West Virginia State Board of Education v. Barnette,

319 U. S. 624 ......... .....................................................  17
Winters v. New York, 333 U. S. 507 .......................... 25, 26

Statutes

Code of Laws of South Carolina, 1952, Section 15-909 .... 5, 7,
8

Code of Laws of South Carolina, 1952, Section 16-386 .... 3, 5,
6, 7, 8, 9

Code of Laws of South Carolina, 1960, Section 16-386 .... 21,
25

United States Code, Title 28, Section 1257(3) .............. 2



V

Other Authorities
PAGE

Ballentine, “Law Dictionary” (2d Ed. 1948) ................ 25
Black’s “Law Dictionary” (4th Ed. 1951) ..................... 25
Henkin, “Shelley v. Kraemer: Notes for a Revised 

Opinion,” 110 U. of Penn. L. Rev. 473 ............... 12,13,14
Konvitz, “A Centnry of Civil Rights” ..........................  13



I n  th e

Bnpnm$ (Emtrt of tip llnttefi
Octobee Term, 1961 

No................

Simon B otjie and T almadge J. Neal,

Petitioners,
—v.—

City oe Columbia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on February 13, 1962, 
rehearing of which was denied on March 7, 1962.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina is 
unreported as of yet and is set forth in the appendix hereto, 
infra, pp. 10a-13a. The opinion of the Richland County 
Court is unreported and is set forth in the appendix hereto, 
infra, pp. 3a-9a. The opinion of the Recorder’s Court of 
the City of Columbia is unreported and is set forth in the 
appendix hereto, infra, pp. la-2a.



2

Jurisdiction

The Judgment of the Supreme Court of South Carolina 
was entered February 13, 1962, infra, pp. 10a-13a. Petition 
for Behearing was denied by the Supreme Court of South 
Carolina on March 7, 1962, infra, p. 14a.

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257(3), petitioners 
having asserted below and asserting here, deprivation of 
rights, privileges and immunities secured by the Constitu­
tion of the United States.

Questions Presented

1. Whether the due process and equal protection clauses 
of the Fourteenth Amendment permit a state to use its 
executive and judiciary to enforce racial discrimination 
in conformity with a state custom of discrimination by 
arresting and convicting petitioners of criminal trespass 
on the premises of a business which has for profit opened 
its property to the general public.

2. Whether petitioners’ conviction of trespass at the 
restaurant of a variety store offends the due process clause 
of the Fourteenth Amendment when petitioners were con­
victed for engaging in a sit-in protest demonstration and 
the criminal statute applied to convict petitioners gave no 
fair and effective warning that their actions were pro­
hibited, and their conduct violated no standard required 
by the plain language of the law or any earlier inter­
pretation thereof.



3

S tatu to ry  and  C onstitu tional P rovisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves Section 16-386, Code of Laws 
of South Carolina for 1952, as amended, which states:

Entry on lands of another after 
notice 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 mis­
demeanor and be punished by a fine not to exceed one 
hundred dollars or by imprisonment with hard labor 
on the public works of the county for not exceeding 
thirty days. When any owner or tenant 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 afore­
said for the purpose of trespassing.

Statement

At approximately 11:00 A.M. on March 14, 1960, peti­
tioners, two Negro college students entered the Eckerd’s 
Variety Store in Columbia, South Carolina (R. 36, 49). 
They seated themselves at a booth in the food department 
and sought service (R. 7, 31, 33, 35, 49, 52). Both testified 
they had money with which to purchase food (R. 3, 16, 
38, 48, 51, 55). No one spoke to the petitioners or ap­
proached them to take their order for food (R. 31, 32, 38). 
After petitioners were seated an employee of the store



4

put up a chain with a “No Trespassing” sign (R. 35). Peti­
tioners testified that white persons were seated in the food 
department and were being served food at this time (R. 36, 
37, 53, 54). They continued to sit in the booth for some 
fifteen or twenty minutes (R. 30, 49). While waiting ser­
vice, petitioners sat each with an open book before him 
(R. 3, 16, 38, 51).

The manager of Eckerd’s called the Columbia police 
(R. 32) who arrived and proceeded with the manager 
directly to the booth where petitioners were seated (R. 3, 6). 
The manager told petitioners to leave “ . . . because we 
aren’t going to serve you” (R. 3, 12). Petitioners remained 
seated and the Chief of Police then asked petitioners to 
leave (R. 3, 50). When petitioners did not comply the 
Chief of Police placed them under arrest (R. 3, 13). Bouie 
asked the Chief of Police “for what” (R. 4, 5, 12). The 
Chief then “reached and got him by the arm . . . and . . . 
had to pull him out of the seat” (R. 4). The Chief then 
seized him by the belt, gave him a “preliminary frisk,” and 
marched him out of the store (R. 4, 17, 51). Bouie testified 
that he offered no resistance and told the Chief “That’s 
all right, Sheriff, I ’ll come on” (R. 51).

The Chief was asked on cross examination: Q. “Chief, 
isn’t it a fact that the only reason you were called in from 
the Police Department to arrest these two persons, was 
because they were Negroes who were asking for srvice 
(sic) in the food department in Eckerd’s drug store, and 
the manager was directing them out because they were 
Negroes? Isn’t that correct?” A. “Why certainly, I would 
think that would be the case” (R. 20, 21).

Eckerd’s, one of Columbia’s larger variety stores is part 
of a regional chain with numerous stores located through­
out the South (R. 19, 29). In addition to the food depart-



5

ment, Eckerd’s maintains other departments including retail 
drug, cosmetic and prescriptions (R. 20, 29). Negroes and 
whites are invited to purchase and are served alike in all 
departments of the store with the single exception that 
Negroes “have never been” served in the food department 
which is reserved for whites (R. 29, 30, 52). Negroes are 
not served in the food department because as the store 
manager put it, “ . . . all the stores do the same thing” 
(R. 31). There was, however, no evidence that any signs 
or notices are present in the store indicating that Negroes 
are not served at the lunch counter.

Throughout the events that led to their arrest, petitioners 
were completely orderly and peaceful (R. 9, 35).

Petitioners were charged with trespass in violation of 
Section 16-386 as amended of the Code of Laws of South 
Carolina, infra, p. 10a. Section 16-386 states:

Entry on lands of another after 
notice 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 he punished by imprisonment with 
hard labor on the public works of the county for not 
exceeding thirty days. When any owner or tenant 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 he deemed and taken as 
notice conclusive against the person making entry as 
aforesaid for the purposes of trespassing.”

Petitioners were also charged with breach of the peace 
in violation of Section 15-909, Code of Laws of South Caro-



6

lina, 1952, infra, p. 10a. Petitioner Bouie was also charged 
with the common law crime of resisting arrest, infra, p. 10a.

Petitioners were tried in the Recorder’s Court of the 
City of Columbia without a jury and convicted of trespass 
in violation of Section 16-386 and sentenced to pay fines 
of $100.00 or serve thirty days in jail, $24.50 of the fines 
being suspended. Petitioner Bouie was convicted of resist­
ing arrest and fined $100.00 or thirty days, $24.50 of the fine 
being suspended. Bouie’s sentences were to run consecu­
tively (R. 62, 63).

Petitioners appealed to the Richland County Court which 
sustained the judgments and sentences of the Recorder’s 
Court of the City of Columbia on April 28, 1961, infra, 
pp. 3a-9a.

Petitioners thereupon appealed to the Supreme Court 
of South Carolina which affirmed the judgment of convic­
tion of trespass in violation of Title 16, Section 386 of 
the 1952 Code of Laws of South Carolina, as amended, 
and reversed the judgment of conviction against petitioner 
Bouie for resisting arrest on February 13, 1962, infra, 
pp. 10a-13a. The Supreme Court of South Carolina denied 
rehearing on March 7, 1962, infra, p. 14a.

How the Federal Questions Were Raised 
and Decided Below

At the close of the Prosecution’s case in the Recorder’s 
Court of the City of Columbia, petitioners moved to dis­
miss the charges against them on the grounds, inter alia, 
that (R. 25, 26, 65-66):

“ . . . for the State to stand idly by and allow a private 
individual in public business to discriminate against 
the defendants on the basis of race and color alone



7

and then for the State to back up this discrimination 
by State action in ejecting, arresting and subjecting 
to trial these defendants is a denial of due process 
of law and a denial of the equal protection of the 
laws as guaranteed by the 14th Amendment of the 
United States Constitution.

The defendants move to dismiss the charges of tres­
pass and breach of the peace, in violation of State 
Statutes Section 16-386 and 15-909, on the ground that 
evidence proves that the defendants were merely at­
tempting to exercise their rights as business invitees 
of a business catering to the general public to exercise 
the freedom of being served by said business on a 
non-discriminating basis without regard to race and 
color and in so doing were not guilty of any crime.

Further, the defendants move to dismiss all charges 
against them on the ground that to deprive them of 
their liberty to enter such a business establishment 
as the record describes and be served as others, and 
that to be ejected and arrested by agents of the State 
—the police—solely on the basis of race and color, 
and to be singled out as the only persons ejected while 
others remain, is a denial of due process of law and 
the equal protection of the laws as guaranteed by the 
14th Amendment of the United States Constitution.”

The motion was overruled by the trial Court (R. 26).
Petitioners moved to dismiss the charges against them 

on the same grounds at the close of trial (R. 60, 63-66). 
This motion was denied by the trial Court (R. 60, 61-63).

Subsequent to judgment of conviction in the trial Court 
petitioners moved for arrest of judgment or in the alterna­
tive a new trial on the ground that:



8

“ . . . State Code No. 16-386, as amended, trespass 
and State Code No. 15-909, breach of peace, though 
constitutional on their faces, are as to these defen­
dants, unconstitutionally applied, thus denying to these 
defendants due process of law and equal protection 
of the laws, in violation of the 14th Amendment of 
the United States Constitution . . . ” (R. 68).

The motion for arrest of judgment or in the alternative 
for a new trial was supported by the same grounds as 
petitioners’ motions to dismiss (R. 68-69). This motion 
was denied by the trial Court (R. 61).

Petitioners appealed to the Richland County Court re­
newing the constitutional objections to their convictions 
relied upon in the trial Court. The Richland County Court 
held that the proprietor of a restaurant can choose his 
customers on the basis of color without violating consti­
tutional provisions and that in aiding his policy of exclu­
sion the State of South Carolina was not enforcing racial 
discrimination (R. 71, 74). The Court also held:

The Defendants, under South Carolina law, had no 
right to remain in the stores after the manager asked 
them to leave. Shramek v. Walker, 149 S. E. 331, 152 
S. C. 88. As the Court quoted the rule, “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” (R. 
72-73).

Petitioners appealed to the Supreme Court of South 
Carolina claiming error in that the Court below refused 
(R. 76, 77):



9

“ . . .  to hold that the evidence shows conclusively that 
the arresting officers acted in the furtherance of a 
custom, practice and policy of discrimination based 
solely on race or color, and that the arrests and con­
victions of appellants under such circumstances are 
a denial of due process of law and the equal protection 
of the laws, secured to them by the Fourteenth Amend­
ment to the United States Constitution.

4. The Court erred in refusing to hold that the 
evidence establishes merely that at the time of their 
arrests appellants were peaceably upon the premises 
of Eckerd’s drug store as customers, visitors, busi­
ness guests or invitees of a business establishment 
performing economic functions invested with the public 
interest, and that the procurement of the arrest of 
appellants by management of said establishment under 
such circumstances in furtherance of a custom, prac­
tice and policy of racial discrimination is a violation 
of rights secured appellants by the due process and 
equal protection clauses of the Fourteenth Amendment 
to the United States Constitution.”

The Supreme Court of South Carolina affirmed peti­
tioners’ conviction of trespass in violation of Title 16- 
Section 386, as amended, of the 1952 Code of Laws of 
South Carolina, holding that appellants’ contention that 
“arrest by the police officer at the instance of the store 
manager, and the convictions of trespass that followed, 
were in furtherance of an unlawful policy of racial dis­
crimination and constituted state action in violation of 
appellants’ right under the Fourteenth Amendment” had 
been made, considered and rejected previously by the Court. 
The cases relied upon by the Supreme Court of South
Carolina were City of Greenville v. Peterson, -----  S. C.
——, 122 S. E. (2d) 826 (Petition for Writ of Certiorari



10

No. 750 filed 30 U. S. L. Week 3274); City of Charleston
v. Mitchell, ------  S. C. ---- , 123 S. E. (2d) 512 (Petition
for Writ of Certiorari No. 846 filed 30 IT. S. L. Week 3324);
City of Columbia v. B arr,-----  S. C. ----- , 123 S. E. (2d)
521 (Petition for Writ of Certiorari No. 847 filed 30 U. S. L. 
Week 3324).

The Supreme Court of South Carolina reversed peti­
tioner Bouie’s conviction for resisting arrest on the ground 
that the “momentary delay” of petitioner in responding to 
the officer’s command did not amount to “resistance.”

REASONS FOR GRANTING THE WRIT

I.

The D ecision Below Conflicts W ith Prior Decisions o f  
This Court W hich Condemn the Use o f State Power to 
Enforce Racial Segregation.

Petitioners were not served in Eckerd’s because they 
were Negroes and the custom of the City of Columbia is 
that Negroes may not he served at restaurants which also 
cater to whites (R. 31). See Petition for Writ of Certiorari 
in City of Columbia v. Barr, et at., No. 847 filed in this 
Court 30 U. S. L. Week 3324. As the store manager put 
it “all stores do the same thing” (R. 31). It is also apparent 
that the arrests were made to support this discrimination. 
On cross examination the arresting officer was asked:

Q. “Chief, isn’t it a fact that the only reason you 
were called in from the Police Department to arrest 
these two persons was because they were Negroes who 
were asking for srvice (sic) in the food department in 
Eckerd’s drug store, and the manager was directing 
them out because they were Negroes'? Isn’t that cor-



11

rectf” A. “Why certainly, I would think that would 
he the case” (B. 20, 21).

The trial court convicted petitioners on evidence plainly 
indicating that race and race alone was the reason they 
were ordered to leave the restaurant.

The Supreme Court of South Carolina recognized the 
issue in this case to he whether police and judicial enforce­
ment of Eckerd’s racial discrimination policy violated the 
equal protection clause of the Fourteenth Amendment.

" . . .  the contention [is] that appellants’ arrest hy the 
police officer at the instance of the store manager, and 
the convictions of trespass that followed, were in fur­
therance of an unlawful policy of racial discrimination 
and constituted state action in violation of appellants’ 
rights under the Fourteenth Amendment” (infra, p. 
12a).

It answered this question contrary to petitioners’ posi­
tion hy relying upon cases, involving similar issues, which 
are now pending before this Court, e.g. Columbia v. Barr,
-----  g. C .----- 123 S. E. 2d 521, No. 847 October Term,
1961; City of Greenville v. Peterson, -----  S. C. ----- , 122
S. E. 2d 826 (No. 750, October Term, 1961); Charleston v.
Mitchell,----- S. C .------ , 123 S. E. 2d 512 (No. 846 October
Term, 1961).

But the decision is contrary to a growing body of prin­
ciples declared by this Court. Where there is state action 
by the police, Screws v. United States, 325 U. S. 91; Monroe 
v. Pape, 365 U. S. 167; prosecutors, Napue v. Illinois, 360 
U. S. 264, and judiciary, Shelly v. Kraemer, 334 U. S. 1, 
14-18; Boynton v. Virginia, 364 U. S. 454, racial discrimina­
tion supported by state authority violates the Fourteenth 
Amendment. Civil Rights Cases, 109 U. S. 3, 17.



12

It is asserted, however, that the state is not enforcing 
racial discrimination, hat is implementing a property right. 
But to the extent that management was asserting a “prop­
erty” right to enforce racial segregation according to the 
custom of the City of Columbia, it becomes pertinent to 
inquire just what that property right is. See Henkin, 
“Shelley v. Kraemer: Notes for a Revised Opinion,” 110 
U. of Penn. L. Rev. 473, 494-505.

The mere fact that “property” is involved does not settle 
the matter, Shelly v. Kraemer, 334 U. S. 1, 22. “Dominion 
over property springing from ownership is not absolute 
and unqualified.” Buchanan v. Warley, 245 U. S. 60, 74; 
United States v. Willow River Power Co., 324 U. S. 499, 
510; Marsh v. Alabama, 326 U. S. 501, 506; cf. Munn v. 
Illinois, 94 U. S. 113; Republic Aviation Corp. v. N. L. R. B., 
324 U. S. 793, 796, 802; Goldblatt v. Town of Hempstead, 
30 U. S. L. Week 4343.

Eckerd’s is a commercial variety store open to the public 
generally for the transaction of business, including the 
sale of food and beverages in its restaurant. It does not 
seek to keep everyone, or Negroes, or these petitioners 
from coming upon the premises. The white public is invited 
to use all the facilities of the store and Negroes are invited 
to use all these facilities except the restaurant. The man­
agement does not seek to exclude petitioners because of 
an arbitrary caprice, but rather, follows the community 
custom of Columbia which is, in turn, supported and 
nourished by law.

The portion of the store from which petitioners are 
excluded is not set aside for private or non-public use as 
an office reserved for the management or lounge or private 
restroom for employees. Petitioners did not seek to use 
the restaurant for any function inappropriate to its normal 
use. They merely sought food service. Therefore, it ap­
pears that the property interest which the State protects



13

here, by arrest, prosecution, and criminal conviction, is 
the claimed right to open the premises to the public gen­
erally, including Negroes, for business purposes, including 
the sale of food and beverages, while racially discriminating 
against Negroes, as such, at one integral part of the facili­
ties. While this may, indeed, be a property interest, the 
question before this Court is whether the State may enforce 
it without violating the Fourteenth Amendment. This prop­
erty interest certainly may be taken away by the State 
without violating the Fourteenth Amendment. Western 
Turf Asso. v. Greenberg, 204 U. S. 359; Railway Mail Assn. 
v. Corsi, 326 U. S. 88; Pickett v. Kuchan, 323 111. 138, 153 
N. E. 667, 49 A. L. E. 499 (1926); People v. King, 110 
N. Y. 419, 18 N. E. 245 (1888); Annotation 49 A. L. E. 505; 
cf. District of Columbia v. John R. Thompson Co., 346 
U. S. 100; Henkin, supra at p. 499 n. 52.

Many states make it a crime to engage in the racially 
discriminatory use of private property which South Caro­
lina enforces here. For the latest collection of such statutes, 
see Konvitz, A Century of Civil Rights (1961), passim. 
Indeed, Eckerd’s has sought to achieve in this case some­
thing which the State itself could not permit it to do on 
state property leased to it for business use. Burton v. 
Wilmington Parking Authority, 365 U. S. 715, or require 
or authorize it to do by positive legislation. See Mr. 
Justice Stewart’s concurring opinion in Burton, supra. 
Although it does not necessarily follow from the fact that 
some states constitutionally may make racial discrimina­
tion on private property criminal, that other states may 
not enforce racial discrimination, it does become evident 
that Eckerd’s property interest is hardly inalienable or 
absolute.

Basic to the disposition of this case is that Eckerd’s is 
a public establishment open to serve the public as a part 
of the public life in the community. See Garner v. Louisiana,



14

368 U. S. 157, 176, Mr. Justice Douglas concurring. The 
case involves no genuine claim that Eckerd’s right to “pri­
vate” use of its property was interfered with by petitioners. 
To uphold petitioners’ claims here affects only slightly the 
entire range of what are called private property rights. 
For if Eckerd’s is disabled by the Fourteenth Amendment 
from enforcing by state action racial bias at its public 
lunch counter, homeowners are hardly disabled from en­
forcing their private rights even to implement racial preju­
dices. See Henkin, supra at pp. 498-500. There is a con­
stitutional right of privacy protected by the due process 
clause of the Fourteenth Amendment. Mapp v. Ohio, 367 
IT. S. 643, 6 L. ed. 2d 1081, 1080, 1103, 1104; see also Poe 
v. Ullman, 367 U. S. 497, 6 L. ed. 2d 989, 1006, 1022-1026 
(dissenting opinions). This Court has recognized the re­
lationship between right of privacy and property interests. 
Thornhill v. Alabama, 310 U. S. 88, 105-106; Breard v. 
Alexandria, 341 IT. S. 622, 626, 638, 644. Only a very abso­
lutist view of the property right to determine who may 
come or stay on one’s property on racial grounds would 
require that a unitary principle apply to the whole range 
of property uses, public connections, dedications, and pri­
vacy interests which may be at stake. Petitioners certainly 
do not contend that the principles urged to prevent the 
use of trespass laws to enforce racial discrimination in a 
restaurant operated for profit as a public business would 
prevent the state from enforcing a similar bias in a private 
home or office where the right of privacy has its greatest 
meaning and strength.1 As Mr. Justice Holmes stated in 
Hudson County Water Co. v. McCarter, 209 IT. S. 349, 355:

/T h e  right of privacy cannot be destroyed by resort to the 
niceties of property law. Chapman v. United States, 365 U. S. 610, 
617. “Rights of liberty and property, of privacy and voluntary 
association, must be balanced, in close cases, against the right 
not to have the state enforce discrimination . . . ” Henkin, “Shelley 
v. Kraemer: Notes for a Revised Opinion,” 110 U. of Penn L 
Rev. 473, 496, 490-505.



15

All rights tend to declare themselves absolute to their 
logical extreme. Yet all in fact are limited by the 
neighborhood of principles of policy which are other 
than those on which the particular right is founded, 
and which become strong enough to hold their own 
when a certain point is reached.

Where a right of private property is asserted by a pro­
prietor so narrowly as to claim state intervention only 
in barring Negroes from a single portion of a public es­
tablishment, and that restricted assertion of right collides 
with the great immunities of the Fourteenth Amendment, 
petitioners respectfully submit that the propery right is 
no right at all.

Moreover, the assertion of racial prejudice here is not 
“private” at all. The segregation here enforced is that 
demanded by custom of the City of Columbia. While “cus­
tom” is referred to in the Civil Rights Cases as one of the 
forms of state authority within the prohibitions of the 
Fourteenth Amendment, 109 U. S. 3, 17 (see also Mr. 
Justice Douglas concurring in Garner v. Louisiana, 368 
U. S. 157, 179, 181), Columbia’s custom exists in a context 
of massive state support of racial segregation.2

2 See S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 
repealing S. C. Const. Art. 11, §5 (1895) (which required legis­
lature to maintain free public schools). S. C. Code §§21-761 to 779 
(regular school attendance) repealed by A. & J. R. 1955 (49) 85; 
§21-2 (appropriations cut off to any school from which any pupil 
transferred because of court order; §21-230(7) (local trustees may 
or may not operate schools); §21-238 (1957 Supp.) (school offi­
cials may sell or lease school property whenever they deem it 
expedient) ; S. C. Code §40-452 (1952) (unlawful for cotton 
textile manufacturer to permit different races to work together 
in same room, use same exits, bathrooms, etc., $100 penalty and/or 
imprisonment at hard labor up to 30 days; S. C. A. & J. R. 1956



16

Consequently, we have here state-nurtured and state- 
enforced racial segregation in a public institution con­
cerning which no property right may be asserted in the 
face of the Fourteenth Amendment’s prohibition of state 
enforced racial segregation. This state enforced segrega­
tion conflicts with Fourteenth Amendment principles which 
have been consistently asserted by this Court.

II.
The D ecision Below Conflicts With D ecisions o f This 

Court Securing the Right o f Freedom of Expression  
Under the Fourteenth Amendment to the Constitution 
of the United States.

Petitioners were engaged in the exercise of free ex­
pression by means of nonverbal requests for nondiscrim- 
inatory food service which were implicit in their con­
tinued remaining in the food department 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. Peti­
tioners’ expression (seeking service) was entirely appro­
priate to the time and place at which it occurred. Peti­
tioners did not shout, obstruct the conduct of business, 
or engage in any expression which had that effect. There

p ° \ Park inv°lved in desegregation su it) ; S. C.
Stafp p  J  \ (Supp.) (providing for separate
btate Parks); §51-181 (separate recreational facilities in cities 
with population m excess of 60,000); §5-19 (separate entrances at 
circus); S. C. Code Ann. Tit. 58, §§714-720 (1952) (segregation 
m travel facilities). On April 5, 1962, the City of Greenville, 
bouth Carolina arrested and charged a Negro with the crime of 
violating Sec 31.10. The Code of City of Greenville S. C. 1953. 
Be Unlawful for Colored person to occupy Residence in White 
Block (arrest and trial warrant No. 179, City v. Robinson). Cf 
Buchanan v. Warley, 245 U. S. 60.



17

were no speeches, picket signs, handbills or other forms 
of expression in the store which were possibly inappro­
priate 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. Their 
protest demonstration was a part of the “free trade in 
ideas” (Abrams v. United States, 250 U. S. 616, 630, 
Holmes, J., dissenting), and was within the range of lib­
erties protected by the Fourteenth Amendment, even though 
nonverbal. Stromberg v. California, 283 U. S. 359 (display 
of red flag); Thornhill v. Alabama, 310 U. S. 88 (picketing); 
West Virginia State Board of Education v. Barnette, 319 
U. S. 624, 633-624 (flag salute); N. A. A. C. P. v. Alabama, 
357 U. S. 449 (freedom of association).

Petitioners do not urge that there is a Fourteenth Amend­
ment right to free expression on private property in all 
cases or circumstances without regard to the owner’s pri­
vacy, and his use and arrangement of his property. This 
is obviously not the law. In Breard v. Alexandria, 341 IT. S. 
622 the Court balanced the “householder’s desire for pri­
vacy and the publisher’s right to solicit on a door-to-door 
basis. But cf. Martin v. Struthers, 319 IT. S. 141 where 
different kinds of interests were involved with a correspond­
ing difference in result.

The character of petitioners’ right to free expression is 
not defined merely by reference to the fact that private 
property rights are involved. The nature of the property 
rights asserted and of the state’s participation through 
its officers, its customs, and its creation of the property 
interest, have all been discussed above in connection with 
the state action issue as it related to racial discrimination. 
Similar considerations should aid in resolving the free 
expression question.



18

In Garner v. Louisiana, Mr. Justice Harlan, concurring, 
found a protected area of free expression on private prop­
erty on facts regarded as involving “the implied consent 
of the management” for the sit-in demonstrators to remain 
on the property. It is submitted that even absent the 
owner’s consent for petitioners to remain on the premises 
of this business establishment, a determination of their 
free expression rights requires consideration of the totality 
of circumstances respecting the owner’s use of the property 
and the specific interest which state judicial action is sup­
porting. Marsh v. Alabama, 326 U. S. 501.

In Marsh, swpra, this Court reversed trespass convictions 
of Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize for their faith, 
holding that the conviction violated the Fourteenth Amend­
ment. In Republic Aviation Corp. v. N. L. R. B., 324 U. S. 
793, the Court upheld a labor board ruling that lacking 
special circumstances employer regulations forbidding all 
union solicitation on company property constituted unfair 
labor practices. See Thornhill v. Alabama, supra, involving 
picketing on company-owned property; see also N. L. R. B. 
v. American Pearl Button Co., 149 F. 2d 258 (8th Cir. 
1945); and compare the cases mentioned above with N. L. 
R. B. v. Fansteel Metal Corp., 306 U. S. 240, 252, con­
demning an employee seizure of a plant. In People v. 
Barisi, 193 Misc. 934, 83 N. Y. S. 2d 277, 279 (1948) the 
Court held that picketing within Pennsylvania Railroad 
Station was not a trespass; the owners opened it to the 
public and their property rights were “circumscribed by 
the constitutional rights of those who use it.” See also 
Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Eel. Ref. Man. 2334 (1959); and State of 
Maryland v. Williams, Baltimore City Court, 44 Lab Eel 
Ref. Man. 2357, 2361 (1959).



19

In the circumstances of this case the only apparent state 
interest being subserved by this trespass prosecution, is 
support of the property owner’s discrimination in con­
formity to the State’s segregation custom and policy. This 
is all that the property owner has sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create a 
clear and present danger that will bring about the sub­
stantive evil” which the state has the right to prevent. 
Schenck v. United States, 249 U. S. 47, 52. The only “sub­
stantive evil” sought to be prevented by this trespass 
prosecution is the elimination of racial discrimination and 
the stifling of protest against it; but this is not an “evil” 
within the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimination.

The fact that the arrest and conviction were designed to 
short circuit a bona fide protest is strengthened by the 
necessity of the state court to make a strained and novel 
interpretation of the statute in order to bring petitioners’ 
conduct within its ambit. Petitioners’ conviction for tres­
pass rests on an interpretation which flies in the face of 
the plain words of the statute, all prior applications, and 
ignores the most recent legislative amendment to said 
statute. The trespass statute prior to amendment read:

Every entry upon the 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 ex­
ceed one hundred dollars or by imprisonment with 
hard labor on the public works of the county for not 
exceeding thirty days. When any owner or tenant of 
any lands shall post a notice in four conspicuous places 
on the borders of such land prohibiting entry thereon 
and shall publish once a week for four consecutive



20

weeks such notice in any newspaper circulating in the 
county in which such lands are situated, a proof of 
the posting and of publishing of such notice within 
twelve months prior to entry shall be deemed and taken 
as notice conclusive against the person making entry 
as aforesaid for the purpose of hunting or fishing on 
such land. (Code of Laws, South Carolina, 1952.)

The amended statute under which petitioners’ convictions 
were had added the language which is italicized:

Every entry upon the lands of another where any 
horse, mule, cow, hog or any other livestock is pas­
tured, or any other lands of another . . .

The Legislature obviously limited the statute to trespass 
on land primarily used for farm purposes. Petitioners 
have been able to find no cases under the instant criminal 
statute or its predecessors in which the trespass punished 
was not for entry on land (generally farm land) or some 
adjunctive land such as on the road.3 See State v. Green, 
35 S. C. 266; State v. Mays, 24 S. C. 190; State v. Tenney, 
58 S. C. 215; State v. Hallback, 40 S. C. 298; State v. Gray, 
76 S. C. 83 (all cases of trespass on land or specifically 
farm land). The amendment was merely declaratory, mak­
ing explicit on the face of the statute the prior applications. 
The action of the court below in extending the statute to 
business premises, is, therefore, completely novel and un­
supported by prior cases or the recent amendment.

3 The only exceptions being sit-in convictions presently pending 
before this Court, Columbia v. Barr et al., 123 S. E. 2d 521 (1961) 
(Petition for Certiorari No. 847 filed 30 U. S. L. Week 3324) ; 
Charleston v. Mitchell, et al., 123 S. E. 2d 512 (1961) (Petition 
for Certiorari No. 846 filed 30 U. S. L. Week 3324), which were 
decided subsequent to the events which led to petitioners’ arrest 
and conviction.



21

Further, the statute in terms prohibits only going on 
the land of another after being forbidden to do so. The 
Supreme Court of South Carolina has now construed the 
statute to prohibit also remaining on property when di­
rected to leave the following lawful entry. In short, the 
statute is now applied as if “remain” were substituted for 
“enter.” There is no history to support this second novel 
construction of the statute. No South Carolina case has 
ever adopted such a construction.4 See Note 3, supra p. 20.

Subsequent to petitioners’ conviction the legislature of 
the State of South Carolina enacted into law Section 16- 
388 a trespass statute making criminal failing and refus­
ing “to leave immediately upon being ordered or requested 
to do so” the premises or place of business of another. See 
Petition for Writ of Certiorari in Peterson, et al. v. City 
of Greenville, No. 750 filed in this Court, 30 U. S. L. Week 
3276.

There is no question but that petitioners and all Negroes 
were welcome in Eekerd’s—apart from the restaurant 
(R, 29). The restaurant is an integral part of the store 
and can only be reached by “entry” into the store proper— 
to which petitioners were admittedly invited (R. 29). Ab­
sent the special expansive interpretation given Section 16- 
386 by the Supreme Court of South Carolina, the case 
would plainly fall within the principle of Thompson v. City 
of Louisville, 362 U. S. 199, and would be a denial of due

4 As authority for this construction the South Carolina Courts 
cite Shramek v. Walker, 152 S. C. 88, 149 S. E. 331, which was a 
civil suit for trespass. But civil and criminal trespass have long 
been distinguished, the latter requiring, at common law, special 
circumstances such as breach of the peace. Bex v. Storr, 3 Burr. 
1698. Cf. American Law Institute, Model Penal Code, Tentative 
Draft No. 2, §206.53, Comment.



22

process of law as a conviction resting upon no evidence of 
guilt. There was obviously no evidence that petitioners 
entered the premises “after notice . . . prohibiting such 
entry” and the conclusion that they did rests solely upon 
the special construction of the law.

Under familiar principles the construction given a state’s 
statute by its highest court determines its meaning. Peti­
tioners submit, however, that this statute lias been judi­
cially expanded to the extent that it does not give a fair and 
effective warning of the acts it now prohibits. Because of 
the expansive construction, the statute now reaches more 
than its words fairly and effectively define, and therefore, 
as applied it offends the principle that criminal laws must 
give fair and effective notice of the acts they prohibit.

The due process clause of the Fourteenth Amendment re­
quires that criminal statutes be sufficiently explicit to in­
form those who are subject to them what conduct on their 
part will render them criminally liable. “All are entitled 
to be informed as to what the State commands or forbids”, 
Lanzetta v. New Jersey, 306 U. S. 451, 453, and cases cited 
therein in note 2.

Construing and applying federal statutes this Court has 
long adhered to the principle expressed in Pierce v. United 
States, 314 U. S. 206, 311:

. . . judicial enlargement of a criminal act by interpre­
tation is at war with a fundamental concept of the com­
mon law that crimes must be defined with appropriate 
definiteness. Cf. Lametta v. New Jersey, 306 U. S. 451, 
and cases cited.

In Pierce, supra, the Court held a statute forbidding false 
personation of an officer or employee of the United States 
inapplicable to one who had impersonated an officer of the



T. V. A. Similarly in United States v. Cardiff, 344 U. S. 
174, this Court held too vague for judicial enforcement a 
criminal provision of the Federal Food, Drug, and Cos­
metic Act which made criminal a refusal to permit entry 
of inspection of business premises “as authorized by” an­
other provision which, in turn, authorized certain officers 
to enter and inspect “after first making request and obtain­
ing permission of the owner.” The Court said in Cardiff, 
at 344 U. S. 174, 176-177,

The vice of vagueness in criminal statutes is the treach­
ery they conceal either in determining what persons are 
included or what acts are prohibited. Words which are 
vague and fluid (cf. United States v. L. Cohen Gro­
cery Co., 255 U. S. 81) may be as much of a trap for 
the innocent as the ancient laws of Caligula. We can­
not sanction taking a man by the heels for refusing to 
grant the permission which this Act on its face ap­
parently gave him the right to withhold. That would be 
making an act criminal without fair and effective no­
tice. Cf. Herndon v. Lowry, 301 U. S. 242.

The Court applied similar principles in McBoyle v. United 
States, 283 U. S. 25, 27; United States v. Weitzel, 246 U. S. 
533, 543, and United States v. Wiltberger, 18 U. S. (5 
Wheat.) 76, 96. Through these cases run a uniform appli­
cation of the rule expresed by Chief Justice Marshall:

It would be dangerous, indeed, to carry the principle, 
that a case which is within the reason or mischief of 
a statute, is within its provisions, so far as to punish 
a crime not enumerated in the statute, because it is of 
equal atrocity, or of kindred character, with those 
which are enumerated (id. 18 U. S. (5 Wheat.) at 96).

The cases discussed above involved federal statutes con­
cerning which this Court applied a rule of construction



24

closely akin to the constitutionally required rule of fair 
and effective notice. This close relationship is indicated by 
the references to cases decided on constitutional grounds. 
The Pierce opinion cited for comparison Lametta v. New 
Jersey, supra, and “cases cited therein,” while Cardiff 
mentions United States v. L. Cohen Grocery Co., 255 U. S. 
81 and Herndon v. Lowry, 301 U. S. 242.

On its face the South Carolina trespass statute warns 
against a single act, i.e., entry upon the land of another 
“after” notice prohibiting such. “After” connotes a se­
quence of events which by definition excludes going on or 
entering property “before” being forbidden. The sense of 
the statute in normal usage negates its applicability to peti­
tioners’ act of going on the premises with permission and 
later failing to leave when directed.

Petitioners do not contend for an unreasonable degree of 
specificity in legislative drafting. Some state trespass laws 
have recognized as distinct prohibited acts the act of going 
upon property after being forbidden and the act of re­
maining when directed to leave.5 South Carolina passed a 
statute punishing those who remain after being directed

5 See for example the following state statutes which do ef­
fectively differentiate between “entry” after being forbidden 
and “remaining” after being forbidden. The wordings of the 
statutes vary but all of them effectively distinguish the situation 
where a person has gone on property after being forbidden to do 
so, and the situation where a person is already on property and 
refuses to depart after being directed to do so, and provide 
separately for both situations: Code of Ala., Title 14, §426; 
Compiled Laws of Alaska Ann. 1958, Cum. Supp. Yol. I ll , 
§65-5-112; Arkansas Code, §71,1803; Gen. Stat. of Conn. (1958 
Rev.), §53-103; D. C. Code §22-3102 (Supp. VII, 1956); Florida 
Code, §821.01; Rev. Code of Hawaii, §312-1; Illinois Code, 
§38-565; Indiana Code, §10-4506; Mass. Code Ann. C. 266, §120; 
Michigan Statutes Ann. 1954, Vol. 25, §28.820(1) ; Minnesota Stat­
utes Ann. 1947, Vol. 40, §621.57; Mississippi Code, §2411; Nevada 
Code, §207.200; Ohio Code, §2909.21; Oregon Code, §164.460; Code 
of Virginia, 1960 Replacement Volume, §18.1-173; Wyoming Code, 
§6-226.



25

to leave two months after petitioners’ conviction, Section 
16-388, Code of Laws of South Carolina. See supra, p. 21. 
Converting, by judicial construction, the common English 
word “entry” into a word of art meaning “remain” or 
“trespass” has transformed the statute from one which 
fairly warns against one act into a law which fails to ap­
prise those subject to it “in language that the common 
world will understand, of what the law intends to do if a 
certain line is passed” (McBoyle v. United States, 283
U. S. 27). Nor does common law usage of the word “entry” 
support the proposition that it is synonymous with “tres­
pass” or “remaining.” While “entry” in the sense of going 
on and taking possession of land is familiar (Ballentine, 
“Law Dictionary” (2d Ed. 1948), 436; “Black’s Law Dic­
tionary” (4th Ed. 1951), 625), its use to mean remaining 
on land and refusing to leave it when ordered off is novel.

Judicial construction often has cured criminal statutes 
of the vice of vagueness, but this has been construction 
which confines, not expands, statutory language. Compare 
Chaplinsky v. New Hampshire, 315 U. S. 568, with Herndon 
v. Lowry, supra.

At the time of their arrest, petitioners were engaged in 
the exercise of free expression by verbal and nonverbal 
requests for nondiscriminatory lunch counter service, im­
plicit in their continued remaining at the lunch counter 
when refused service.

If in the circumstances of this case free speech is to 
be curtailed, the least one has a right to expect is reason­
able notice in the statute under which convictions are ob­
tained. Winters v. New York, 333 L. S. 507. To uphold 
petitioners’ conviction by novel and enlarged construction 
of this statute is to violate the principle that when freedom 
of expression is involved conduct must be proscribed within 
a statute “narrowly drawn to define and punish specific



26

conduct as constituting a clear and present danger to a 
substantial interest of the State”, Cantwell v. Connecticut, 
310 U. S. 296, 307, 308; Garner v. Louisiana, 368 U. S. 157, 
185 (Mr. Justice Harlan concurring). If the Supreme 
Court of South Carolina can affirm the convictions of these 
petitioners by such a construction it has exacted obedience 
to a rule or standard that is so ambiguous and fluid as 
to be no rule or standard at all. Champlin Rev. Co. v. 
Corporation Com. of Oklahoma, 286 U. S. 210. But when 
free expression is involved, the standard of precision is 
greater; the scope of construction must, consequently, be 
less. If this is the case when a State court limits a statute 
it must a fortiori be the case when a State court expands 
the meaning of the plain language of a statute. Winters 
v. New York, 333 U. S. 507, 512.

As construed and applied, the law in question no longer 
informs one what is forbidden in fair terms, and no longer 
warns against transgression. This failure offends the 
standard of fairness expressed by the rule against expan­
sive construction of criminal laws which is embodied in the 
due process clause of the Fourteenth Amendment.



27

CONCLUSION

W herefore , for the foregoing reasons petitioners re­
spectfully pray that the Petition for Writ of Certiorari 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J . P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia, South Carolina

Attorneys for Petitioners



APPENDIX



APPENDIX

Opinion o f the Recorder’s Court

I n  th e

RECORDER’S COURT OF THE CITY OF COLUMBIA

City of Columbia,

•v.—

S imon Bouie and T almadge J. Neal.

The Court: I ’m prepared to hand down an opinion. In 
the ease of Stramack (?) v. Walker, 149 Southeastern, Mr. 
Justice Cothran, who is one of the ablest members of the 
Supreme Court of this State, wrote the opinion of the Court 
and that was decided on August 27, 1929. This was a suit 
for damages where an individual remained in a building 
after having been ordered by the owner to depart. He 
refused to leave the building and was forcibly ejected by 
the owner. In this case Mr. Justice Cothran, speaking for 
the Court, said: “The law is well settled as thus expressed 
in our own case of State v. Lazarus, 1, Mills, Constitution 
34: “The Prosecutor having business to transact with him, 
had a right to enter his house but if he remained after 
having been ordered to depart, might have been put out of 
the house. The defendant using no more violence than was 
necessary to accomplish this object and showing to the 
satisfaction of the Court and the jury, that this was his 
object.” Now, I might add that in Second Ruling Case 
Law, 559, the law is stated very succinctly and very prop­
erly : “It is a well settled principle that the occupant of any 
house, store or other building, has the legal right to control



2a

Opinion of the Recorder’s Court

it and to admit whom he pleases to enter and remain there 
and that he also has the right to expel from the room or 
building anyone who abuses the privilege which has been 
thus given to him. 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.” That’s a quotation from Ruling Case Law and I 
think that law is well settled in South Carolina and I might 
say in the United States, and furthermore, under the case 
which I stated some time ago during the early part of the 
morning, the Circuit Court of Appeals has held that the 
private owner of a business has a perfect right to control 
it and to do business with anybody he pleases to do busi­
ness with. That applies not only to Howard Johnson but 
I think in the case involved, which is Eckerd’s, they’ve got 
a perfect legal right to do business and transact business 
with anybody they want to do business with, and if they 
invite them to leave and request them to leave and if they 
refuse to do it, then they have every right under the law 
to use such force as may be necessary to eject them.

It is therefore the opinion of this Court that the defen­
dants are guilty, and the fine of the Court against Simon 
Bouie is $100.00 or 30 days, for trespassing, and I suspend 
$24.50 of that, and on resisting arrest, the fine of the 
Court is $100.00 or 30 days, of which amount the sum of 
$24.50 is suspended, said fines to run consecutively.

The judgment of the Court is in the case of Talmadge 
J. Neal, the fine of the Court is that he pay a fine of $100.00 
or serve 30 days, provided that the sum of $24.50 is sus­
pended.



3a

Order o f the Richland County Court

City of Columbia,

S imon B ouie and T almadge J. Neal.

These Appeals from the Recorder’s Court of The City 
of Columbia were orally argued together before me and 
taken under advisement. The facts are largely undisputed. 
All of the Defendants are Negroes. Eckerd’s Drug Store 
and Taylor Street Pharmacy are separate stores in The 
City of Columbia. Besides filling prescriptions, each sells 
drugs and sundries and has a section where lunch, light 
snacks and soft drinks are served. Trade is with the gen­
eral public in all the departments except the lunch depart­
ment where only white people are served.

On one occasion, Bouie and Neal went into Eckerd’s and 
on another day the other Defendants went into the Taylor 
Street Pharmacy, sat down in the lunch department and 
waited to be served. All said they intended to be arrested. 
In each case, the manager of the store came up to them 
with a peace officer and asked them to leave. They refused 
to do so and were then placed under arrest and charged 
with trespass and breach of the peace. Bouie, in addition, 
was charged with resisting arrest. It is undenied that he 
resisted.

Bouie and Neal were tried on March 25, 1960, and the 
other Defendants on March 30, 1960, before The Honorable 
John I. Rice, City Recorder of Columbia, without a jury; 
trial by jury having been waived by all the Defendants.



4a

Order of the Richland County Court

All the Defendants were convicted and sentenced and 
these appeals followed. Motions raising the constitutional 
questions were timely made.

There are 16 grounds of Appeal in the Bouie and Neal 
proceeding and 13 grounds of appeal in the proceeding 
involving the other Defendants, raising the following ques­
tions : (1) Did the State deny Defendants, who are Negroes, 
due process of law and equal protection of the laws within 
the Federal and State Constitutions either by using its 
peace officers to arrest them or by charging them with 
violating Secs. 16-386 (Criminal Trespass) and 15-909 
(Breach of Peace) of the Code of Laws of South Carolina, 
1952, as amended, when they refused to leave a lunch 
counter when asked by the manager thereof to do so? 
(Bouie and Neal Nos. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, and 
15; other Defendants, Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 
and 13.) (2) Was there any substantial evidence pointing 
to the guilt of the Defendants? (Bouie and Neal, No. 8; 
other Defendants, No. 7.)

Since Defendants did not argue Bouie and Neal’s Excep­
tions 7, 9 and 16, I have considered them abandoned.

The State has not denied Defendants equal protection of 
the laws or due process of law within the Federal or State 
Constitutional provisions.

A lunch room is like a restaurant and not like an inn.
The difference between a restaurant and an inn is ex­

plained in Alpaugh v. Wolverton, 36 S. E. (2d) 907 (Court 
of Appeals of Virginia) as follows:

“The proprietor of a restaurant is not subject to the 
same duties and responsibilities as those of an inn­
keeper, nor is he entitled to the privileges of the latter. 
28 A. Jr., Innkeepers, No. 120, p. 623; 43 C. J. S., Inn­
keepers, No. 20, subsection b, p. 1169. His responsi­
bilities and rights are more like those of a shopkeeper.



5a

Order of the Richland County Court

Davidson v. Chinese Republic Restaurant Co., 201 
Mich. 389, 167 N. W. 967, 969, L. R. A. 1919 E, 704. 
He is under no common-law duty to serve anyone who 
applies to him. In the absence of statute, he may 
accept some customers and reject others on purely per­
sonal grounds. Nance v. Mayflower Tavern Inc., 106 
Utah 517, 150 P. (2d) 773, 776; Nolle v. Iliggins, 95 
Misc. 328, 158 N. Y. S. 867, 868.”

And the proprietor can choose his customers on the basis 
of color without violating constitutional provisions. State 
v. Clyburn, 101 S. E. (2d) 295, 247 N. C. 455; Williams v. 
Howard Johnson’s Restaurant, 268 F. (2d) 845; Slack v. 
Atlantic Whitetower, etc., 181 F. Sup. 124 (Dist. Court 
Md.), 284 F. (2d) 746.

In the Williams case, supra, Judge Soper, speaking for 
the Court of Appeals for The Fourth Circuit, said: “As an 
instrument of local commerce, the restaurant is not subject 
to the Constitution and statutory provisions above (Com­
merce Clause and Civil Rights Acts of 1875), and is at 
liberty to deal with such persons as it may select.”

And in Boynton v. Virginia, -----  U. S. ----- , 81 S. Ct.
182, 5 L. Ed. (2d) 206, The Supreme Court of The United 
States took care to state:

“Because of some of the arguments made here it is 
necessary to say a word about what we are not de­
ciding. We are not holding that every time a bus 
stops at a wholly independent roadside restaurant 
the Interstate Commerce Act requires that restaurant 
service be supplied in harmony with the provisions of 
that Act. We decide only this case, on its facts, where 
circumstances show that the terminal and restaurant 
operate as an integral part of the bus carrier’s trans­
portation service for interstate passengers.”



6a

Order of the Richland County Court

I have reviewed all of the eases cited by both the City 
and the Defendants, and in addition have reviewed subse­
quent cases of the Court of Appeals and The United States 
Supreme Court, including the case of Burton v. Wilming­
ton Parking Authority, handed down on April 17, 1961, and 
find none applicable or controlling except the Williams and 
Slack cases, supra.

The Defendants, under South Carolina Law, had no right 
to remain in the stores after the manager asked them to 
leave. Shramek v. Walker, 149 S. E. 331, 152 S. C. 88. As 
the Court quoted the rule, “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.”

If the manager could have ejected Defendants himself, 
he could call upon officers of the law to eject them for him.

Since the Defendants refused to leave, they were crim­
inal trespassers under Sec. 15-909 of The Code of Laws of 
South Carolina, 1952, and their conviction was proper.

Shelly v. Kraemer, 334 U. S. 1, 92 L. Ed. 845, 68 S. Ct. 
836, 3 A. L. R. (2d) 441, and Barrows v. Jackson, 346 U. S. 
249, 97 L. Ed. 1586, 73 Supreme Court 1031 cited by the 
Defendants are not in point. In both of these cases, there 
had been a sale of real estate to a non-caucasian in violation 
of restrictive covenants. In the Shelley case, the Court 
held that the equity of court of the State could not be 
used against the non-caucasian to enforce the covenant. 
In the Barrows case, the court held that the covenant could 
not be enforced by an action at law for damages against 
the co-covenanter, who broke the covenant.



7a

Order of the Richland County Court

In both of these cases, there were willing sellers and 
willing purchasers. The purchasers paid their money and 
entered into possession. Having entered, they had a right 
to remain.

In the cases before the Court, there were no two willing 
parties to a contract. True, the Defendants wanted to buy, 
but the storekeeper did not want to sell and the Defendants 
had no right to remain after being asked to leave. A white 
person would not have the right to remain after being 
asked to leave either. In either case, a person would be a 
trespasser. The Constitutions provide for equal rights, 
not paramount rights.

I have only to pick up my current telephone directory 
and look in the yellow pages to find at least four establish­
ments listed under “Restaurants” that advertise that they 
are for colored or for colored only.

To say that a white proprietor may not call upon a police­
man to remove or arrest a Negro trespasser or a Negro 
proprietor cannot call upon a policeman to remove or ar­
rest a White trespasser would lead to confusion, lawless­
ness and possible anarchy. Certainly, the Constitutions 
intended no such result.

The fundamental fallacy in the argument of Defendants 
is the classification of the stores and lunch counters as pub­
lic places and the operations thereof as public carriers.

A person, whatever his color, enters a public place or 
carrier as a matter of right. The same person, whatever 
his color, enters a store or restaurant or lunch counter by 
invitation.

That person’s right to remain in a public place depends 
upon the law of the land, and in a public carrier upon such 
law and such reasonable rules as the carrier may make, and,



8a

Order of the Richland County Court

under the Constitution, neither the law nor rules may dis­
criminate upon the basis of color.

On the other hand, the same person has no right to enter 
a store, a restaurant, or lunch counter unless and until in­
vited, and may remain only so long as the invitation is 
extended. Whether he enters or remains depends solely 
upon the invitation of the storekeeper, who has a full choice 
in the matter. The operator can trade with whom he wills, 
or he can, at his own whim and pleasure, close up shop.

There is no question but that the Defendants are guilty. 
They were asked to leave and they refused. They, there­
upon, were trespassers and such constituted a breach of the 
peace. In addition, Bouie admittedly resisted a lawful ar­
rest.

The trespass statute (Section 16-386, as amended, Code 
of Laws of South Carolina, 1952) is not restricted to “pas­
ture or open hunting lands” as defendants argue. The stat­
ute specifically says “any other lands”. In Webster’s New 
International Dictionary, the definition of “land” in “Law” 
is as follows:

“ (a) any ground, soil, or earth whatsoever, regarded 
as the subject of ownership, as meadows, pastures, 
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 tenement or hereditament.”

The statute thus applies everywhere and without discrim­
ination as to color. There is no question but that it was de­
signed to keep peace and order in the community.

Since Defendants had notice that neither store would 
serve Negroes at their lunch counters, they were trespassers



9a

Order of the Richland County Court

ab initio. Aside from this, however, the law is that even 
though a person enters property of another by invitation, 
he becomes a trespasser after he has been asked to leave. 
Shramek v. Walker, supra.

For the reasons herein stated, I am of the opinion that 
the judgments and sentences of the Recorder should be sus­
tained and the Appeals dismissed, and it is so Ordered.

s /  J ohut W. Chews,
Judge, Richland County Court.

Columbia, S. C., 
April 28, 1961.



10a

Opinion o f the Supreme Court o f South Carolina

I n the

SUPREME COURT OF SOUTH CAROLINA

T he City oe Columbia,
Respondent,

S imon B ouie and T almadge J. Neal,

Appellants.

Appeal From Richland County 
John W. Crews, County Judge

Filed February 13,1962
A eeirmed in  P art ; 
Reversed in  P art

L egge, A. J . : The appellants Simon Bouie and Talmadge 
J. Neal, Negro college students, were arrested on March 
14, 1960, and charged with trespass (Code, 1952, Section 
16-386 as amended) and breach of the peace (Code, 1952, 
Section 15-909). Bouie was also charged with resisting 
arrest. On March 25, 1960, they were tried before 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 fine of one hundred 
($100.00) dollars or to imprisonment for thirty (30) days 
on each charge, twenty-four and 50/100 ($24.50) of each 
fine being suspended and the prison sentences to run con-



11a

Opinion of the Supreme Court of South Carolina

secutively. Neal was sentenced to pay a fine of one hundred 
($100.00) dollars, of which twenty-four and 50/100 ($24.50) 
was suspended, 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 addi­
tion to selling to the general public drugs, cosmetics and 
other articles usually sold in drugstores, maintains 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 ar­
rested “if it took that”. No employee of the store ap­
proached them, and they continued 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 requested them to leave. Upon their ignoring 
such request, the police officer asked them to leave, which 
request 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 pro­
ceeded to march him out of the store, Bouie testified that



12a

Opinion of the Supreme Court of South Carolina

he made no resistance, but only said to the officer when 
the latter had hold of his belt, “That’s all right, Sheriff, 
I ’ll come on”. The officer testified that Bouie 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.’ ”

The appeal here is based upon four Exceptions of which 
Nos. 3 and 4 present, in substance, the contention that ap­
pellants’ arrest by the police officer at the instance of the 
store manager, and the convictions of trespass that fol­
lowed, were in furtherance of an unlawful policy of racial 
discrimination and constituted state action in violation of 
appellants’ rights under the Fourteenth Amendment. Iden­
tical contention was made, considered, and rejected in City
of Greenville v. Peterson, filed November 10, 1961, -----
S. C. ----- , -----  S. E. (2d) ----- ; City of Charleston v.
Mitchell, filed December 13, 1961, —— 8. C. ----- , -----
S. E. (2d)----- and City of Columbia v. Barr, filed Decem­
ber 14, 1961,-----S. C .------ , -----  S. E. (2d) ----- , in each
of which was involved a sit-down demonstration, similar 
to that disclosed by the uncontradicted evidence here, at 
a lunch counter in a place of business privately owned and 
operated, as was Eckerd’s in the case at bar. Exceptions 
3 and 4 are overruled.

Exceptions 1 and 2 purport to question the sufficiency 
of the evidence to make out a case of trespass as to either 
appellant, or a case of resisting arrest as to the appellant 
Bouie. So far as they relate to the charge of trespass, 
these exceptions are without merit. The uncontradicted 
testimony, to which we have referred, amply supported that 
charge.

On the other hand, the evidence was in our opinion in­
sufficient to warrant Bouie’s conviction on the charge of



13a

Opinion of the Supreme Court of South Carolina

resisting arrest. It is apparent from the testimony of 
the arresting officer that the only “resistance” on Bouie’s 
part was his failure to obey immediately the officer’s order, 
with the result that the latter “had to pick him up out of 
the seat”. Resisting arrest is one form of the common law 
offense of obstructing justice; and the use of force is not 
an essential ingredient of it, State v. Hollman, 232 S. C. 
489, 102 S. E. (2d) 873. But we do not think that such 
momentary delay in responding to the officer’s command as 
is shown by the testimony here amounted to “resistance” 
within the intent of the law, City of Charleston v. Mitchell, 
supra.

The judgment is affirmed as to the conviction and sentence 
of each of the appellants on the charge of trespass; it is 
reversed as to the conviction and sentence of the appellant 
Bouie on the charge of resisting arrest.

Affirmed in part and reversed in part.
T aylor, C.J., Moss and L ewis, JJ., concur.



Order o f Denial o f Rehearing

I n th e

SUPREME COURT OF SOUTH CAROLINA

City of Columbia,
Respondent,

—against—

S imon B ouie and T almadge J. Neal,

Appellants.

(Endorsed on back of Petition for Rehearing)

THE WITHIN PETITION FOR REHEARING has been 
carefully considered and is found to be without merit. The 
Petition is therefore denied.
Filed: March 7, 1962.

s /  C. A. Taylor C. J.
s/ L ionel K. Legge A.J.
s/ J oseph R. Moss A.J.
s /  J. W oodrow Lewis A.J.