Lupper v. Arkansas petition for Writ of Certiorari

    L

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;

I n the

(Urntrt rtf Ini' llutirti ^tatrn
October T erm, 19G3

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

-------------------- o --------------------

F rank James L upper, et al.,
Petitioners,

—v.—

S tate of A rkansas.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ARKANSAS

Jack Greenberg 
Constance Baker M otley 
James M. Nabrit, III  
F rank II. H effron 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

H arold B. A nderson
205 Century Building 
Little Rock, Arkansas

W iley A. Branton 
119 E. Barraque 
Pine Bluff, Arkansas

Attorneys for Petitioners



I N D E X

PAGE

1

1

Opinions Below

Jurisdiction .......................................................................  1

Question Presented............................................................  2

Statutory and Constitutional Provisions Involved ....... 2

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

How the Federal Questions Were Raised and Decided 
B elow ...............................................................................  5

Reasons for C ranting the Writ .....................................  7

I. Petitioners Convictions Enforce Racial Dis­
crimination in Violation of the Fourteenth 
Amendment to the Constitution of the United 
States.................................................................... 8

II. The Record Indicates That There Were Spe­
cial Circumstances of Police Involvement in 
the Racially Discriminatory Scheme Which 
Would in Themselves Establish State Action 
in Violation of the Fourteenth Amendment .... 17

Conclusion .....................................................................    19

T able of Cases

Avent v. North Carolina, 373 U. S. 375 .......................... 7

Barr v. City of Columbia, 374 U. S. 805 .......................  7
Barrows v. Jackson, 34G U. S. 249 (1953) ..................... 1.6,9
Bell v. Maryland, 374 U. S. 805 ............... [.................... I 8



«
PAGE

Bolling v. Sharpe, 347 U. S. 497 .................................  9
Bouie v. City of Columbia, 374 U. S. 805 ......................  8
Brown v. Board of Education, 347 U. S. 483 ..................  9
Buchanan v. Warley, 245 U. S. 6 0 .................................  9
Burton v. Wilmington Parking Authority, 365 U. S.

715 .................................................................................12,16

Civil Rights Cases, 109 U. S. 3 .....................................  12
Cooper v. Aaron, 358 U. S. 1 ...........................................9,14

Goss v. Board of Education, 373 U. S. 683 ......................  9
Griffin v. Maryland, 370 U. S. 935.....................................  7

Hurd v. Hodge, 334 U. S. 2 4 .............................................6, 9

Lombard v. Louisiana, 373 U. S. 267 ..........................7,18

McCabe v. Atchison, Topeka & S.F. Ry., 235 U. S. 151 16 
McGhee v. Sipes, 334 U. S. 1 .........................................  11

Peterson v. City of Greenville, 373 U. S. 244 .......7, 9,14,18

Robinson v. Florida, 374 U. S. 803 .................................  8

Shelley v. Kraemer, 334 U. S. 1 ..............................6, 9,10,11
The Slaughterhouse Cases, 83 U. S. (16 Wall.) 36 .... 16
Smith v. Faubus, 327 S. W. 2d 562 .................................  15
Strauder v. West Virginia, 100 U. S. 303 ..................  16

Terry v. Adams, 345 U. S. 461 ....1................................ 16
Trustees of the Monroe Avenue Church of Christ v. 

Perkins, 334 U.S. 813 ..................................................  9

11



PACK
S tatutes and Constitutional Provision

28 U. S. C. §1257(3) ........................................................  2
Ark. Stat. §3-910 (1947) ................................................. 15
Ark. Stat. §41-1432 (1959) ............................................  4

Ark. Stat. §41-1433 (1959) ............................................. 4
Ark. Stat. §46-122 (1947) ..............................................  15

Ark. Stat. §§46-144 to 46-147 (1947) ............................  15

Ark. Stat. §46-323 (1947) ..............................................  15

Ark. Stat. §§60-817 to 60-824 (1947) .............................  15

Ark. Stat. §§73-1614 to 73-1619 (1947) ...................... 15
Ark. Stat. §§73-1747 to 73-1753 (1947) ...................... 15
Ark. Stat. §80-509 (1947) ........    15

Ark. Stat. §§80-544 to 80-547 (1947) ............................  15

Other A uthorities

Henkin, “ Shelley v. Kraemer: Notes for a Revised 
Opinion,” 110 U. Pa. L. Rev. 473 (1962) .............. 10,16

9 Wigmore, Evidence (3d ed., 1940) §§2486, 2488 ....... 13

Woodward, The Strange Career of Jim Crow (1957) .. 14

iii



%
I n the

£>upmiu' (Emtrt nf thr Imtrii #tatrs
October T erm, 1963

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

F rank James L upper, et al.,

-v -
Petitioners,

State of A rkansas.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ARKANSAS

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Arkansas, entered 
in the above-entitled case on May 13, 1963, rehearing of 
which was denied on June 3, 1963.

Citation to Opinions Below

The opinion of the Supreme Court of Arkansas (R. 117) 
is reported at 367 S. W. 2d 750. The opinion of the Supreme 
Court of Arkansas on petition for rehearing (R. 134) is 
reported at 367 S. W. 2d 760.

Jurisdiction

The judgment of the Supreme Court of Arkansas (R. 132) 
was entered on May 13, 1963. The petition for rehearing 
was denied (R. 134) on June 3, 1963.



2%

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.

Question Presented

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 arrest­
ing and convicting petitioners of refusal to leave the prem­
ises of a business which has for profit opened its property 
to the general public.

Statutory and Constitutional Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States. 2

2. This case also involves Section 41-1433 of the Arkan­
sas Statutes (Acts 1959, No. 14, §1, p. 29):

“Any person who after having entered the business 
premises of any other person, firm or corporation, 
other than a common carrier, and who shall refuse to 
depart therefrom upon request of the owner or man­
ager of such business establishment, shall be deemed 
guilty of a misdemeanor and upon conviction shall be 
fined not less than fifty dollars ($50.00) nor more than 
five hundred dollars ($500.00), or by imprisonment not 
to exceed thirty (30) days, or both such fine and 
imprisonment.”



3

Statement

Between 11:30 A.M. and 12:00 noon on April 13, I960, 
petitioners entered the Blass Department Store in Little 
Bock, Arkansas. Petitioners, part of a group of five or 
more Negroes (B. 72), proceeded upstairs from the main 
floor to the mezzanine, where a lunch counter and several 
tables are located (B. 37, 59). Mr. Henry Holt, store man- 
ager, testified that petitioners were among the group which 
took seats at the lunch counter and tables (B. G5-66) and 
that although he identified himself as store manager 
(B. 72) and asked them to leave (B. 65), the petitioners 
refused to do so (B. 65).1 Upon their refusal to leave, 
Mr. Holt and Mr. Trianfonte, assistant store superintend­
ent, left the premises and sought the police (B. 66).- Cap­
tain Paul Terrell of the Little Bock Police Department 
testified that he, Lieutenant Talbert and Officers Baer and 
Thomas were standing across the street from the store 
(B. 35, 66) when Mr. Holt and Mr. Trianfonte approached 
them and complained that “ they had colored boys” (B. 35). 
The policemen entered the store and saw the petitioners 
on the main floor (B. 36). Captain Terrell, Lieutenant 
Talbert and Officer Baer testified (B. 36-37, 45, 52, 54) 
that they asked the petitioners whether they had been 
seated upstairs and whether they had refused to leave 
upon request. According to these policemen, the peti­
tioners admitted that they had (B. 37, 45, 52, 54).1 Then 
petitioners were arrested.

I
1 Petitioners denied that they $ad been asked to leave (R 79 

85, 89, 98-99).

2 They were not difficult to find since Officer Baer had telephoned 
headquarters when he saw the Negroes entering the store (R. 51). 3

3 Petitioners disputed this (R. 79, 84, 89, 98).



4

^i’etitioners were charged with breach of the peace in 
violation of Section 41-1432, Arkansas Statutes (Section 1 
of Act 226 of 1959) and with refusal to leave a business 
establishment after request in violation of Section 41-1433, 
Arkansas Statutes (Section 1 of Act 14 of 1959).

They were tried on April 21, 1960 in the Municipal Court 
of Little Rock and convicted on both charges (R. 1,~3).— 
Thereupon they appealed to the Pulaski County Circuit 
Court, where trial was had before a jury on June 17, 1960. 
Each was again 'convicted on both charges and each re­
ceived a fine of $500.00 and 6 months’ imprisonment on the 
Act 226 violation and a fine of $500.00 and 30 days’ im­
prisonment on the Act 14 violation (R. 16-17).’U

Thereafter, the petitioners took an appeal to the Supreme 
Court of Arkansas. This appeal was consolidated for brief-, 
ing with Briggs y . State (no. 4992) and Smith v. State 
(no. 4994) (R. appendix, infra, p. 3a). On May 13, 
1963, the Supreme Court of Arkansas handed down its 
decision, reversing all the Act 226 convictions for lack of 
evidence and affirming the Act 14 convictions of the peti­
tioners. The petitioners petitioned the Supreme Court of 
Arkansas for rehearing (Rf.133; 'appendix, infra, p. 17a) 
which was^denied (RA.l&f‘/  appendix, infra, p. 18a) on 
June 3, 1963.

It is undisputed that petitioners were at all times neat,
quiet and orderly (R. 39, 48, 59, 68).4

* This fact dictated reversal of petitioners’ convictions of breach 
of the peace by the Supreme Court of Arkansas (R. 117-123); 
appendix, infra, pp. la-7a).



5%

How the Federal Questions Were Raised 
and Decided Below

Prior to trial in the Pulaski County Circuit Court, First 
Division, petitioners filed a motion to dismiss as to Act 14 
(Arkansas Statutes §41-1433).

Petitioners alleged (R. 9-10):

2. That there is a violation of the equal protection 
and the due process clauses of the Fourteenth Amend­
ment to the United States Constitution in that an in­
strumentality of the State—by the judicial enforce­
ment of Act 14—is being utilized against these 
defendants to prevent them and all other Negroes from 
securing equality of treatment by peaceful persuasion.

3. That there is a violation of due process of law in 
that an instrumentality of the State seeks to compel 
the adherence to an arbitrary standard applied to 
Negro invitees by private establishments by the en­
forcement of Act 14, all in violation of the Fourteenth 
Amendment to the Constitution of the United States.

4. That there is a violation of the equal protection 
clause of the Fourteenth Amendment to the Constitu­
tion of the United States, in that the State has made 
available to private establishments—by the enforce­
ment of Act 14—the full coercive power of govern­
ment to aid in the discrimination of Negro invitees 
because of their race and color.

5. That there is a violation of the Constitution of 
the United States in that the State is using its criminal 
statutes to maintain racial segregation and discrimi­
nation.



6

The motion was overruled (R. 1G). Similar objections 
were raised in a motion to quash or dismiss the informa­
tion (R. 11-15), which also was overruled (R. 16).

At the close of the prosecution’s case, petitioners moved 
for a directed verdict of not guilty as to each defendant 
as to the alleged violation of Act 14 (R. 75). The motion 
was overruled (R. 76). Following the verdict of guilty on 
both charges, petitioners moved for a new trial (R. 18), 
renewing their constitutional claims raised in the motion 
to dismiss. This motion also was overruled (R. 20).

Petitioners appealed to the Supreme Court of Arkansas, 
which affirmed the convictions under Act 14.

The Supreme Court of Arkansas declared (R. 126-127; 
appendix, infra, p. 10a) :

Appellants further assert that the Act has been 
unconstitutionally applied in that the enforcement of 
such Act amounts to “ state action” in violation of the- 
14th Amendment to the Federal Constitution. They 
cite, inter alia, Shelley v. Kraemer, 334 U. S. 1, 68 
Sup. Ct. 836, 92 L. Ed. 1161; Hurd v. Hodge, 334 
U. S. 24, 68 Sup. 847, 92 L. Ed. 1187; Barrows v. Jack- 
son, 346 U. S. 249, 73 Sup. Ct. 1031, 97 L. Ed. 1586. . . . 
This argument is completely untenable. . . .

The Supreme Court of Arkansas further declared:

It can add nothing to the argument to say that they 
[lunch counter operators] did not want appellants be­
cause of their color because appellants had no basic 
right to be served and the State’s action in enforcing 
criminal laws against trespass cannot be held to be 
“ state action” abridging the privileges or immunities 
o f citizens of the United States (R. 128; appendix, 
infra, p. 12a).



7

[T]he act of discrimination in refusing service is 
that of the individual and thus not subject to the inter­
diction of the Fourteenth Amendment (R. 130; appen­
dix, infra, p. 13a).

[I]t makes no difference as to why the individual 
lunch counter operator did not want the appellants on 
the premises, because if they remained after a request 
to leave they became trespassers and the State prose­
cuted for trespass and not to enforce discrimination 
(R. 130; appendix, infra, p. 13a).

The Supreme Court of Arkansas had delayed decision 
of the appeal since January 16, 1961 (R. 117; appendix, 
infra, p. 2a) awaiting the decision by this Court of Avcnt 
v. North Carolina, 373 U. S. 375; Peterson v. City of Green­
ville, 373 U. S. 244; and Lombard v. Louisiana, 373 U. S. 
267. Nevertheless, the court delivered its original opin­
ion on May 13, 1963. Following this Court’s disposition 
of the Aveht, Peterson and Lombard cases the Supreme 
Court of Arkansas entertained a petition for rehearing and 
on June 3, 1963 denied rehearing (R. 134-135; appendix, 
infra, p. 17a) on the ground that there was no evidence 
that “ the decision of the Manager in the case at bar to 
exclude these petitioners from the lunch room was anything 
except the exercise of freedom of choice” (R, 135; appen­
dix, infra, p. 18a).

Reasons for Granting the Writ

This case involves substantial questions affecting impor­
tant constitutional rights, resolved by the court below in 
conflict with principles expressed by this Court. This Court 
now has under consideration several cases presenting sub­
stantially identical issues. Griffin v. Maryland, No. 6, 
cert, granted, 370 U. S. 935, set down for reargument, 373 
U. S. 920; Barr v. City of Columbia, No. 9, cert, granted,



8

374 U. S. 805; Bouie v. City of Columbia, No. 10, cert, 
granted, 374 U. S. 805; Bell v. Maryland, No. 12, cert, 
granted, 374 U. S. 805; Robinson v. Florida, No. 60, probable 
jurisdiction noted, 374 U. S. 803.

I.
Petitioners Convictions Enforce Racial Discrimina­

tion in Violation of the Fourteenth Amendment to the 
Constitution of the United States.

Indusputably, petitioners convictions in this case rest 
upon and constitute racial discrimination against them. 
Petitioners are Negro students wl)o, at the very worst,5 
sat at food service counters and tables insisting upon serv­
ice which was refused pursuant to the establishment’s 
racially exclusionary policies.

In the words of Mr. Holt, the manager of Blass Depart­
ment Store, ‘ ‘I went to the balcony lunch room during the’ 
lunch hour and observed there were five negro boys sitting 
in the lunch room, three of them at the counter and two of 
them at tables. I told each one of them in turn that I didn’t 
want any disturbance, but I did ask them to leave” (R. 65). 
It mattered only that they were “Negro” boys. Their con­
duct, dress, and demeanor were above reproach (R. 39, 
48, 59, 68), and they were welcome—as they had always 
been before—in other departments of the store (R. 86, 91). 
But because they were Negroes and they were requesting 
service in the lunchroom, they were asked to leave.6

5 Petitioner Robinson denied that he ever sat down in the lunch 
room (R. 89).

« The record contains no explicit acknowledgment by store per­
sonnel that the lunchroom was operated exclusively for white 
customers but the entire record is inconsistent with any contrary 
proposition. The Supreme Court of Arkansas said,. “The prosecu­
tions arise out of the activities of the defendants in seeking to be 
served at eating facilities maintained for whites, the defendants 
being Negroes (R. 118; appendix, infra, p. 3a).



9

Clearly, then, this case involves discrimination based on 
color, “ simply that and nothing more” (Buchanan v. 
Warley, 245 U. S. GO, 73), and it is no longer arguable that 
such discriminations by government are valid. Racial dis­
criminations have been held repeatedly to violate the due 
process and equal protection clauses of the Fourteenth 
Amendment and the due process clause of the Fifth Amend­
ment. Brown v. Board of Education, 347 U. S. 4S3; Bolling 
v. Sharpe, 347 U. S. 497; Cooper v. Aaron, 358 U. S. 1; 
Goss v. Board of Education, 373 U. S. 683; Peterson v. 
City of Greenville, 373 U. S. 244.

The doctrine of Shelley v. Kraemcr, 334 U. S. 1, is clearly 
applicable. Unless that case is to be overruled (or, what 
is the same thing, irrationally “ confined to its own facts” ), 
it is settled law that there are some cases in which the 
“ state action” requisite for invocation of the Fourteenth 
Amendment is to be found in the use of the judicial power 
to enforce a privately-originated scheme of racial discrimi­
nation.

It is unthinkable that Shelley is to be overruled. It has 
been followed7 and approvingly cited in this Court.8 It is 
unlikely that there is now much disagreement with its 
broader principle; who, for example, would now think it 
right to uphold the action of a state court in ordering 
specific performance, by one restaurateur who wanted to 
desegregate, of an agreement among all the restaurateurs 
in a town to retain segregation? Yet such an injunction, 
absent the Fourteenth Amendment, would be well within the 
equity categories governing the administration of the

7 Trustees of the Monroe Avenue Church of Christ v Perkins 
334 U. S. 813 (1948).

Barrows v. Jackson, 346 U. S. 249 (1953).

8 Hurd v. Hodge, 334 U. S. 24, 33 (1948).
Cooper v. Aaron, 358 U. S. 1, 17 (1958).



10

private-law remedy of specific performance, as a state 
might choose to develop them.

As Professor Henkin, one of the most thoughtful analysts 
of Shelley has said: “Shelley v. Kraemer was not wrongly 
decided. It is not a special case. It need not be rejected; 
it need not be narrowly limited.” Henkin, “Shelley v. 
Kraemer: Notes For A Revised Opinion,” 110 U. Pa. L. 
Rev. 473, 491 (19G2).

But if the Shelley principle has living force, it is hard 
to see why it should not apply here. This case is stronger 
than Shelley. In Shelley, the state action immediately in­
volved consisted (aside from the furnishing of recordation 
machinery) in keeping the courts open for the filing of com­
plaints that asked injunctive relief, in granting such relief 
when asked by a private party, and in standing by with the 
contempt machinery for use in the event the private party 
might invoke that machinery. In this case, the police were 
readily available nearby and made the arrests after the" 
conduct complained of had ceased. The public prosecutor, 
supported by the public fisc, carried the case to court. Most 
crucially, the case was a criminal prosecution, in which the 
state appears as a party, in its own interest, in knowing 
support of the discriminatory scheme, which it thereby 
sanctions within the public order of its criminal law, and 
not merely within the framework of its dealing with private 
rights. The State of Arkansas has taken on this case as its 
own from the first policeman’s intervention to the last argu­
ment in this Court; it must be a paradoxical distinction 
indeed which could find “ state action” in the private-law 
umpiring performed by the state in Shelley v. Kraemer, 
and not find it here.

It has been urged that Shelley involved contract rights, 
while this case involves property rights; but this distinction,



11

aside from its obvious unviability in tbe robust air of a con­
stitutional context, is not even descriptively accurate, for 
the covenant that runs with the land creates a kind of prop­
erty interest, described in the state court’s opinion in a 
companion case to Shelley, as “ reciprocal negative ease­
ments.” 9 Substantially, tbe right assorted in Shelley was 
more weighty than that asserted here; if one really dislikes 
Negroes, having a Negro as a next-door neighbor is more 
disagreeable than selling a Negro a sandwich—or, more ac­
curately, having to endure his sitting and ordering a sand­
wich.

It is asserted that the state is not enforcing racial dis­
crimination, but implementing a property right. The dis­
tinction is a false one; the state is enforcing racial dis­
crimination by  implementing a property right, just as in 
Shelley the state was enforcing racial discrimination by 
implementing a contract right which was also a property 
right.

In addition to its action in arresting these petitioners, 
prosecuting them in its courts, and condemning them to jail, 
the State of Arkansas bears responsibility for tbe enforce­
ment of racial discrimination because the property owner 
formulated his discriminatory policy in obedience to a 
widespread custom which lias been confirmed and main­
tained by state law. A here the individual act of segrega­
tion is performed substantially under the influence of a 
statewide public custom of segregation, and where this 
widespread public custom has in turn been substantially 
supported by formal state law, then the act of segregation 
is infected with state power.

The unfolding of this proposition requires a few words.
I irst, its submission is that where the causal connection

9 See record in U. S. Supreme Court in McGhee v. Sipes 334 
U. S. 1, No. 87, Oct. Term, 1947, p. 51.



12

of the segregation with custom is substantial, and not only 
where that connection amounts to practical coercion, the 
required nexus is present; similarly, where state law has 
substantially supported the custom of segregation, and not 
only where it is the sole force behind that custom, state 
action is traceable in the custom. These propositions are 
conformed to the Civil Rights Cases statement that “ some” 
state action is enough (109 U. S. 3, 13) as well as with the 
“ significant extent” criterion in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 722.

Secondly, there is no principled reason for finding state 
action only in those cases where state law presently in force 
supports the segregation custom; states, like men, are to 
be charged with the consequences of what they do, even 
when those consequences follow after the act that produced 
them is finished, or even repented. The maintenance for 
generations of a de jure segregated regime has its conse­
quences after the laws are changed, and the rules of “ state- 
action” ought to give effect to this obvious social truth. 
The purpose of tracing out this chain of causation is not 
the penalization of the present state officials, but the resolu­
tion of the issue whether in fact state power is a substantial 
factor in the discrimination complained of.

Thirdly, it is not dispositive of the question of the causal 
nexus between state law and state custom to show that 
the segregation code of the state did not contain a provi­
sion specifically commanding the very sort of segregation 
involved in the case. A  reasonably comprehensive segrega­
tion code surely contributes to some extent to the likelihood 
that segregation will be observed as a general custom even 
where that code does not sjjecifically command it.

It remains to deal with questions of burden of proof. 
Two issues are important: (1) If it appears that a custom 
of segregation exists, and that a proprietor segregates in



13

factual conformity to that custom, on whom should the 
burden rest with respect to the issue of his being to some 
extent influenced by the custom? (2) If it appears that a 
custom of segregation exists, and it further appears that 
the state in question has in force or until recent times has 
had in force a system of legal dispensations sanctioning 
segregation, on whom should the burden rest with respect 
to the issue of substantial causal connection between the 
custom and that legal regime ?

9 Wigmore, Evidence (3d ed., 1940) §24SG, states the 
general rule on the allocation of the burden of proof: “ The 
truth is that there is not and cannot be any one general 
solvent for all cases. It is merely a question of policy and 
fairness based on experience in the different situations.” 
And, again, “ . . . [TJliis apportionment depends ultimately 
on broad considerations of policy . . . ” id., §24SS.

It is not doubtful where these considerations lead, with 
respect to the two numbered questions just put.

As to the first: It can surely be recognized by this Court, 
as a broad fact of human nature, that men are rarely wholly 
isolated from the settled customs of their communities, and 
that the notion of a man’s acting in exact conformity to 
custom, but without being influenced in any substantial way 
by the existence of the custom, is virtually a paradox. If 
this be doubted in the general case, surely it cannot be 
doubted in the case of the proprietor catering to the public; 
his business success may depend on his conformity to com­
munity custom. And of course the business motive of 
pleasing his customers by conformity is not a diff'event 
motive from conformity to custom, but that very motive 
itself, in one of its varieties of incidence. Given these facts, 
which it is hard to think anyone will care seriously to dis­
pute, it is plain that the burden of proof, and a very heavy



14

one, ought to be placed on the assertor of the proposition 
that some individual is that rara avis, a man who is in busi­
ness catering to the public, and who factually conforms to 
public custom, but who does so solely from self-generated 
causes, and without any reference to the custom’s existence.

As the second numbered question, the case seems equally 
plain, particularly in the light of the broad history of 
segregation. There is good historic ground for the belief 
that the segregation system was brought into being, or at 
least licked into shape, by state law. See Woodward, The 
Strange Career of Jim Crow (1957), 16-22, 81-85, 91-93, 
et passim. Against that historic background, the issue is 
whether one should have to prove that custom was to some 
extent the function of law aimed at structuring the custom, 
or whether the opponent should have to prove that it was 
not. It is clear that the total lack of such a causal relation 
is the thing for which proof should be required. And it 
should be especially noted that, in cases such as the pres-, 
ent, the assertor of the proposition that no causal relation 
exists between law and custom, that they have moved in a 
Cartesian parallelism, is the very state that maintained the 
legal provisions, now perceived to be unconstitutional, that 
were aimed at shoring up the custom; surely something not 
far from estoppel should at the least prevent the state’s 
benefiting from the assumption that its own efforts were 
vain, without even adducing proof. Cf. Peterson v. Green­
ville, 373 U. S. 244, 248: “The State will not he heard to 
make this contention in support of the convictions.” (Em­
phasis supplied.) Cf. also Mr. Justice Harlan’s concur­
rence in the same case, 373 U. S. at 252.

If these substantive and evidentiary principles are right, 
their application to the instant case is plain. This Court 
will hardly require citation to the propositions that the 
State of Arkansas, and the City of Cooper v. Aaron, supra,



15

lias a public custom of segregation of the races, and lias 
fostered and maintained that custom by law.10 Any denial 
that segregation is at least in substantial part the doing 
of the state is an assertion that the deepest policies and 
most comprehensive laws of the state have been mere works 
of supererogation. The state ought at least be required to 
piove such a strange assertion. The natural inference, 
from the roughest knowledge of the recent history of 
Arkansas is that segregation in public places such as that 
involved in this case, takes place substantially because a 
state-wide public custom, supported by state laws aban­
doned only under extreme pressure, commands that it shall 
take place.

Moreover, even if either the state-created custom or the 
use of state police, prosecutor, attorney-general and courts 
be in itself an insufficient element of state action, never­
theless, in co-action, they are indisputably sufficient. This 
record, in a social context that is a matter of common 
knowledge, presents the picture of a segregation performed 
in obedience to a custom which is at least in substantial 
pait a creature of state law; the action so motivated is 
then supported and enforced by prosecutions conducted 
by state officials, and by convictions in state courts. If 
“ state action” is not to be found in such cases, then the 

state action concept has suffered some weird transfor­
mation from the coordinates of reality, and can be of no 
use in the process of adjusting constitutional interests. 
One need not doubt what the judgment of history will he

10 State law requires segregation in penal institutions (Ark Stat 
§§46-122, 46-144 to 46-147, 46-323 (1 9 4 7 )); and polling places 
(Ark. Stat. §3-910 (1947)) ; on motor carriers (Ark. Stat. §73-1747 
to 73-1753 (1 9 4 7 )); and electric and street railroads (Ark. Stat. 
§73-1614 to 73-1619 (1 9 4 7 )) ; and in schools (Ark. Stat. §80-509 
80-544 to 80-547 (1947)). Ark. Stat. §6-817 to 6-824 (1947), re­
quiring registration of persons promoting integration was held 
unconstitutional, Smith x. Faubiis, 327 S. W . 2d 562 (1959).



16

on the proposition that the political power of the former 
segregating states is to no significant degree engaged in 
the present struggle.

It is true that the Fourteenth Amendment applies only 
to those actions in which state power is to some significant 
degree involved. Here, state power is involved to a signifi­
cant degree in the racial discrimination practiced upon the 
petitioners because the state’s regime of laws has failed to 
furnish protection from discrimination to petitioners.1’ The 
State’s role here is not neutral; it has preferred the dis­
criminator’s insubstantial property claim to the petitioners’ 
claim of equality. The Fourteenth Amendment overrides 
this state choice, for equal protection of the laws requires 
the states to protect the Negroes’ claim of equality. The 
Slaughterhouse cases; 83 U. S. (16 Wall.) 36, 70-73; 
Strauder v. West Virginia, 100 U. S. 303, 306.

Finally, it is submitted that acceptance of the arguments 
advanced above need not foreclose protection of the gen-' 
uinely private and personal choices of man. The substan­
tive guarantees of the Fourteenth Amendment clearly pro­
tect petitioners from the state action involved in this case, 
but those guarantees are susceptible of reasonable interpre­
tation. See Henkin, “ Shelley v. Kraemer: Notes for a Re­
vised Opinion,” 110 U. Pa. L. Rev. 473 (1962). By careful 
interpretation, they can be limited in future cases to their 
incidence upon public life without any undesirable applica­
tion to the truly private concerns of man.

This Court has long recognized that certain crucial abdica­
tions of governmental power— sometimes explained as affirmative 
decisions by government not to act— can make government re­
sponsible m the 14th Amendment sense. Burton v. Wilminqton 
P a rin g  Authority, 365 U. S. 715, 725; Terry v. Adams, 345 U S 
4 6 1 ; McCabe v. Atchison, Topeka & S. F. By., 235 U. S. 151.



17

II.

The Record Indicates That There Were Special Cir­
cumstances of Police Involvement in the Racially Dis­
criminatory Scheme Which Would in Themselves Estab­
lish Slate Action in Violation of the Fourteenth Amend­
ment.

Officer Baer of the Little Rock Police Department testified 
that on the morning of April 13, 19G0 he was working his 
beat in the vicinity of the Blass Department Store when 
he observed a group of Negroes walk into the store (R. 49, 
50). As he declared on the stand,

“ some went in the front door and some went in the 
Fourth Street side and I knew they were these sit- 
downers they have been called because most of them 
had their badges on and 1 followed them in and ob­
served them sitting down upstairs” (R. 50).

After identifying petitioner Robinson as one of the 
group,12 Officer Baer said, “ I proceeded down and called 
headquarters and advised them” (R. 51). “ They sent the 
Lieutenant and the Captain down there, talked to Mr. 
Trianfonte of the Blass store. He advised us of the situa­
tion there” (R. 51-52).

Officer Baer also testified that while observing the sit-in, 
“ I talked to the store employee. I don’t know his name and 
he advised he was waiting for the manager at the time” 
(R. 53). When asked whether he was present when any 
store employee had conversed with the demonstrators, the 
policeman said, “No, sir, I wasn’t” (R, 52). When asked 
whether he had seen the demonstrators leave, he replied,

12 At one point, Officer Baer indicated that both petitioners were 
among the sit-in group (R. 52).



18

“ When I came back outside from using the phone and the 
wagon had driven up and several police cars, they were 
beginning to come out.”

None of Officer Baer’s testimony is directly controverted 
by the prosecution’s other witnesses. There is, of course, 
strong controversion of the state’s version that the police­
men were merely performing their ordinary duties when 
the store manager and his assistant rushed across the street 
for protection.

Officer Baer’s testimony that he talked to a store em­
ployee when the demonstrators sat down clearly indicates 
that he was making every effort to insure that any possible 
offense would clearly fall within the words of this carefully 
worded “ trespass” statute. This is a far cry from the mere 
neutral use of state machinery to enforce private discrim­
inatory choice. Cf. Lombard v. Louisiana, supra; Peterson 
v. City of Greenville, supra.



19

CONCLUSION

Wherefore, for llie foregoing reasons, petitioners pray 
that the petition for writ of certiorari he granted.

Respectfully submitted,

Jack Greenberg 
Constance Baker M otley 
James M. Nabrit, III 
F rank H. Heffron 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

H arold B. A nderson
205 Century Building- 
Little Rock, Arkansas

W iley A. Branton 
119 E. Barraque 
Pine Bluff, Arkansas

Attorneys for Petitioners



APPENDIX

Opinion of the Supreme Court of Arkansas 

SUPREME COURT OF ARKANSAS
Nos. 4992, 4994, 4997

Chester B riggs, et al., 

—v.—

T he State of A rkansas,

Consolidated with 
Ejjgene J). Smith , et al.,

—v.—

Appellants,

Appellee,

Appellants,

T he State of A rkansas,

Consolidated with 
James F rank Buffer, et al.,

\
—v.—

T he State of A rkansas,

Appellee,

Appellants,

Appellee.

Opinion Delivered May 13, 1963

A ppeal F rom P ulaski Circuit Court, 
H on. W illiam J. K irby, Judge.

R eversed and D ismissed in Part. 
A ffirmed in Part.

I



2a

Opinion of the Supreme Court of Arkansas 

Jim  Johnson, Associate Justice-

These are the so-called “ sit-in” cases. They were sub­
mitted to this court on January 1G, 19G1. At that time there 
were cases claimed to be similar pending in other states.1 
By common consent our decision was delayed awaiting the 
outcomes of cases then pending in which petitions for cer­
tiorari to the United States Supreme Court had been filed. 
Since then additional petitions have been filed and there 
are now pending before the United States Supreme Court 
at least three cases of this nature in which certiorari has 
been granted. See Avent v. North Carolina, cert. 370 U. S. 
934; Peterson v. City of Greenville, cert. 370 U. S. 935- 
Lombard v. Louisiana, 370 U. S. 935. We were particularly 
mterested in the outcome of the “ Garner cases” Garner v 
Louisiana, 3G8 U. S. 157, 82 Sup. Ct. 248, 7 L. Ed. 2d 207, 
winch appeared to be in point with the cases at bar From 
the opinion of the United States Supreme Court in these 
cases, which were decided December 11, 1961, it developed 
that the cases did not involve a situation similar to ours 
and therefore afforded no persuasive authority.

While we originally intended to delay our decision until 
the United States Supreme Court had decided a case in 
point with ours, it is against our policy to delay for too 
long our decision in any pending case. We ascribe to the 
theory that justice delayed is justice denied. For many

CJ  117 s. e . 2d 824; Ltuv.mX’ialTm 
Ut S- E 2tl 281; A* <N Cfill S E2d 58; Rucker v. State (Tex.), 342 S. W . 2d 325- Burton v W if

IIoA T  (D d 'i Parnkinf  Authority, 3G5 U. S. 715; Williams v" 
Hot Shoppes, Inc C. A. D. C., April 20, 1961, No. 15610- Gohcr 
v. City of Birmingham (A la .), 133 So. 2d 697.



3a

years when this court goes into summer adjournment all 
cases ready for submission have been decided except some 
rare case like these which is carried over for a definite 
reason. These cases have now been pending for over two 
years. We do not feel that we can properly delay them 
longer to await a decision of the United States Supreme 
Court. In order to avoid carrying these cases over another 
summer we now proceed to a decision.

Our cases here were consolidated.2 They consisted of 
three criminal prosecutions against 13 defendants. The 
prosecutions arise out of the activities of the defendants in 
seeking to be served at eating facilities maintained for 
whites, the defendants being Negroes. The three cases 
involve separate incidents at separate retail establishments. 
There are factual and legal differences necessitating a dif­
ferent disposition of the cases of one group of appellants 
as compared to the other two groups.

Case No. 4992, styled Briggs et al. v. State, is a prosecu­
tion under Act 22G of the Acts of 1959. It involves a “ sit-in” 
at F. W. Woohvorth Company in Little Eock on March 10, 
I960.

Case No. 4994, styled Smith et al. v. State, is also a prose­
cution under Act 226 of the Acts of 1959. It involves a “ sit- 
in” at Pfeifers Department Store in Little Eock on April 
13, I960.

Case No. 4997, styled Lupper et al. v. State, is a prosecu­
tion under Act 226 and also under Act 14. It involves a 
“ sit-in” at the Gus Blass Store in Little Eock on April 13, 
1960.

In the Briggs case, the evidence shows that the Negro 
defendants seated themselves at a lunch counter in Wool- 
worth’s and refused to leave when ordered to do so by

2 The cases were consolidated for briefing upon motion of ap­
pellants.

Opinion of the Supreme Court of Arkansas



4a

police officers. The evidence is undisputed that these defen­
dants were pot requested to leave by the management or 
by anyone with authority to act for the management.

In the Smith case, the record shows that all defendants 
but one left the premises promptly upon the request of 
the manager.

The Lupper case was tried to a jury and there is ade­
quate evidence on behalf of the State to support a finding 
that these two defendants, James Frank Lupper and 
Thomas B. Robinson, refused to leave the Gus Blass Store 
at the request of the manager.

Opinion of the Supreme Court of Arkansas

A ct 226 Cases

We see no distinction in fact or law between the three 
prosecutions under Act 226 of 1959. Therefore, we will 
discuss the three cases together insofar as Act 226 is con­
cerned. Of course, it will be necessary to discuss the prose­
cution under Act 14 separately.

For reversal of the Act 226 cases, it is insisted that:

(1) The Act is unconstitutional because it denied defen­
dants due process and equal protection of the law.

(2) The Act has been applied in an unconstitutional 
manner.

(3) The evidence was insufficient to support a conviction* 
and,

(4) The judgment was excessive and harsh.

Since we are of the opinion that Point 3 is well taken,3 
we will not pass upon the constitutionality of Act 226 of

It »  noted that these appellants were charged and convicted 
of a violation of Act 22G of 1959 exclusively and not for a violation 
of the prohibitions contained m Ark. Stats. §41-1401 or §41-1403 
the general disturbance of the peace statutes ’



5a

1959. This is in accordance with the established rule of 
this court that constitutional questions will not be decided 
where the case may be disposed of on other grounds. 
Bailey v. State, 229 Ark. 74, 313 S. W. 2d 3SS; Bowling v. 
State, 229 Ark. 876, 318 S. W. 2d 808.

Section 1 of Act 226 of 1959 [§41-1432 Ark. Stats.] reads 
as follows:

“Any person who shall enter any public place of 
business of any kind whatsoever, or upon the premises 
of such public place of business, or any other public 
place whatsoever, in the State of Arkansas, and while 
therein or thereon shall create a disturbance, or a 
breach of the peace, in any way whatsoever, including, 
but not restricted to, loud and offensive talk, the making 
of threats or attempting to intimidate, or any other 
conduct which causes a disturbance or breach of the 
peace or threatened breach of the peace, shall be guilty 
of a misdemeanor, and upon conviction thereof shall be 
fined not more than five hundred dollars ($500.00) or 
imprisoned in jail not more than six (6) months, or 
both such fine and imprisonment.”

Under this Act the prohibited offenses are creating dis­
turbances or breaches of the peace. The Act sets forth 
loud and offensive talk, the making of threats and attempts 
to intimidate as examples of prohibited conduct. While 
there was some evidence on the part of the State to the 
effect that feeling and tension were high, the State offered 

. no substantial evidence that these defendants entered the 
store to carry out a conspiracy to cause a breach of the 
peace, nor was there evidence that these defendants or any 
of them uttered any loud offensive talk, made any threats 
or attempted to intimidate anyone. The defendants had a

Opinion of the Supreme Court of Arkansas



6a

right to peacefully seek service at the lunch counters. By 
the same rule, management had a right to refuse to serve 
them. Since the peaceful efforts of the defendants to get 
service at the lunch counters were lawful, and in the ab­
sence of a substantial showing that such efforts were or­
ganized and calculated to disturb or breach the peace, it 
cannot be said here that the mere making of these efforts 
amounted to “ creating a disturbance or breach of the 
peace.” It is obvious that the Act contemplates a doing of 
that which the actor has no legal right to do. The defen­
dants in the Briggs case refused to leave at the command 
of the police officers but in the absence of a request by man­
agement of the officers to order appellants to leave the 
premises, the officers had no right or authority to give 
such orders. There is no contention in this case that the 
officers had received such a request from management. 
Hence, the refusal of the defendants to leave was not un­
lawful and could not have been unlawful until they refused 
to leave at the request of the management or the officers 
in compliance with a request from management. In the 
Smith case all defendants but one left promptly at the re­
quest of the management. Certainly those leaving were 
guilty of no offense. The case of the one individual (in the 
Smith case) who did not leave promptly gives us more 
concern. However, we are constrained to believe that any 
unrest, tension or disturbance existent in the Pfeifer store 
at that time had already been created by the lawful efforts 
of all the defendants to obtain service. There is no showing 
that this act of the defendant created a disturbance or 
breach of the peace. A different question would be pre­
sented had this defendant been prosecuted under Act 14 
of 1959 but no such charge was placed against him.

The point which we wish to make completely clear is 
that the mere fact that the exercise of a lawful right may

Opinion of the Supreme Court of Arkansas



7a

result in a disturbance or breach of the peace does not 
make the exercise of that right a violation of the law so 
long as the right is exercised in a peaceful manner and 
without force or violence or threats of same. Therefore, 
we conclude that all defendants in all prosecutions under 
Act 226 of 1959 should have been acquitted.

In the Luppcr case, which involves violations of Act 14 
of 1959, as well as violations of Act 226, the appellants make 
the same contentions as to Act 14 as are made as to Act 226 
and an additional point is raised as to alleged error in 
refusing to give certain instructions.

D ue Process & E qual Protection of L aws

Section 1 of Act 14 of 1959 [§41-1433 Ark. Stats.] reads 
as follows:

“Any person who after having entered the business 
premises of any other person, firm or corporation, other 
than a common carrier, and who shall refuse to depart 
therefrom upon request of the owner or manager of 
such business establishment shall be deemed guilty of 
a misdemeanor and upon conviction shall be fined not 
less than fifty dollars ($50.00) nor more than five 
hundred dollars ($500.00) or by imprisonment not to 
exceed thirty (30) days, or both such fine and imprison­
ment.”

Appellants assert that Act 14 is unconstitutional in that 
it denies them equal protection of the laws and due process 
as guaranteed by the Fourteenth Amendment to the Con­
stitution of the United States and Section 8 of Article II of 
the Constitution of Arkansas, and cite United States v. 
Miller, 17 F. Supp. 65; and Lametta v. Netv Jersey, 306 
U. S. 451,------Sup. C t.------- , 83 L. Ed. 888. It is contended

Opinion of the Supreme Court of Arkansas



8a

that the Act is so vague as to make it impossible to deter­
mine what conduct might transgress the statute. It is 
said that the Act provides no ascertainable standard of 
criminality. With these contentions we cannot agree. The 
Act clearly, specifically and definitely makes the failure to 
leave the business premises of another upon request of the 
owner or manager a misdemeanor.

It is suggested that the Act could be construed so as to 
allow an owner or manager to invoke the same because a 
customer was demanding a refund of money paid for mer­
chandise or because a customer was demanding a delivery 
of merchandise which he had purchased. Assuming this 
to be true, we see no reason why the Act amounts to a 
denial of due process or equal protection of the laws. To 
remain upon the premises of another after having been re­
quested to leave amounts to a trespass. State v. Clyburn, 
247 N. C. 455, 101 S. E. 2d 295. This does not mean that 
under the hypothesis suggested by appellants that the ag­
grieved customer would have no remedy because if man­
agement had failed to return his money or deliver mer­
chandise purchased, an action would lie in the courts of 
this State and the customer could bo fully compensated for 
the failure to return the money or deliver the merchan­
dise. A bill collector has a right to attempt to collect what 
is due him but he has no right to commit a trespass in the 
process.

By its terms and on its face, the statute applies to all who 
refuse to leave and it is not restricted to negroes. There 
is nothing uncertain, indefinite or vague about Act 14. It 
prohibits trespass.

While the Legislature and not this court determines 
public policy by statutory enactments, we feel that it is a 
wise policy to prevent possible violence and bloodshed by

Opinion of the Supreme Court of Arkansas



9a

providing criminal sanctions against trespass. We have 
held that a citizen of this State may use force and violence 
short of killing to protect his propertly against trespass 
even though the trespasser makes no effort to commit a 
felony. Carpenter v. State, 62 Ark. 2SG, 36 S. W. 900. The 
statute here in question simply provides a means whereby 
the owner of property may be protected in his use and pos­
session of such property without having to resort to force 
and violence. We are impressed with the proposition that 
without this salutary statute, violence in repelling tres­
passers could become commonplace. Certainly, it is in the 
interest of the public and a valid exercise of the police 
power to protect the public peace by criminal sanction 
against trespass. Article 2, §22 of the Constitution of 
Arkansas in part is as follows:

“ The right of property is before and higher than 
any constitutional sanction. . . . ”

The right to hold and enjoy property free from interfer­
ence by others is one of the most precious rights enjoyed 
by the citizens of this State. They are entitled to be pro­
tected in this right against all trespassers without regard 
to whether they are colored or white.

The appellants complain that the Act does not require 
any mens rea or criminal intent on the part of the offender. 
We again disagree; the intent to remain after being re­
quested to leave is a criminal intent.

U nconstitutional A pplication of A ct 14

The appellants contend that Act 14 has been unlawfully 
and unconstitutionally administered because it is said that 
the Act would not be invoked or enforced against a white 
man under the same or similar circumstances, thereby deny-

Opinion of the Supreme Court of Arkansas



10a

ing appellants equal protection of the laws. There is abso­
lutely no evidence in the record to justify such an assertion. 
On its face the Act is applicable to all persons without re­
gard to race. Appellants made no effort to adduce evidence 
to prove that white persons had violated the Act; that 
these violations were known to the officers and prosecuting 
authorities and that no arrests and prosecutions had fol­
lowed such violations. Such proof would have been neces­
sary in order to justify the present contention. See: Taylor 
v. City of Pine Bluff, 22G Ark. 309, 289 S. W. 2d 679, cer­
tiorari denied, 352 U. S. 894, 77 Sup. Ct. 125, 1 L. Ed. 2d 
85; also see: Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 
1064, 30 L. Ed. 220; Snowden v. Hughes, 321 U. S. 1, 64 
Sup. Ct. 397, 88 L. Ed. 497; Hickinbotham v. State, 227 Ark. 
1032, 303 S. W. 2d 565.

The appellants have not shown, nor have we been able 
to find from the record, a single discriminatory act on 
the part of the State in the enforcement of this statute. 
It is not unusual for persons charged with crime to assert 
“discrimination”, however, unsupported assertions can­
not be held to take the place of evidence.

State A ction

Appellants further assert that the Act has been uncon­
stitutionally applied in that the enforcement of such Act 
amounts to “ state action” in violation of the 14th Amend­
ment to the Federal Constitution. They cite, inter alia, 
Shelley v. Kraemer, 334 U. S. 1, 68 Sup. Ct. 836, 92 L. Ed. 
1161; Hurd v. Ilodge, 334 U. S. 24, 68 Sup. 847, 92 L. Ed. 
1187; Barrows v. Jackson, 346 U. S. 249, 73 Sup. Ct. 1031, 
97 L. Ed. 1586; and Valle v. Stengel, 176 F. 2d 697. This 
argument is completely untenable because it presupposes 
a right in the Negro defendants to be served by the lunch

Opinion of ilie Supreme Court of Arkansas



11a

counter operators. In all of the cited cases from the 
Supreme Court of the United States it is either assumed 
or specifically stated that the Negroes involved had a 
right to own and occupy the property in question. In the 
Valle case, the State of New Jersey had enacted a statute 
giving all persons, irrespective of color, the right to ad­
mission of places of public accommodation such as the 
swimming pool there in question.

There is no right in these defendants under either State 
or Federal law to compel the owners of lunch counters to 
serve them. Many states have enacted so-called “ public 
accommodation” statutes but Arkansas is not among them. 
The Fourteenth Amendment does not guarantee any such 
right to the appellants.

Appellants place great reliance on the language in Valle 
v. Stengel, supra, with reference to the right to contract. 
However, a reading of the Valle case shows that the court 
merely held that the Fourteenth Amendment and the Fed­
eral Civil Rights Statutes only guaranteed to Negroes “ a 
civil status equivalent to that enjoyed by white persons.” 
As previously mentioned, New Jersey had a “ public accom­
modation” statute guaranteeing to all persons, regardless 
of color, the right to admission to the swimming pool in 
question. This is considerably different from the situation 
in the case at bar. Arkansas has no “public accommodation” 
statute. Management can arbitrarily order white persons 
to leave lunch counters for any reason whatever. While 
appellants expound forcefully of the equal privileges and 
immunities provisions of the Fourteenth Amendment, we 
cannot escape the conclusion that they are urging this 
court to grant them an unequal privilege, that is the right 
to be served in a restaurant because they are colored, even 
though a corresponding right does not exist in white per-

Opinion of the Supreme Court of Arkansas



12a

sons. Appellants’ argument must fail because they, re­
gardless of color, had no right or privilege to be served. 
To hold otherwise would be to employ judicial fiat to coerce 
unwilling lunch counter operators to afford service to 
patrons they do not want and did not seek. It can add 
nothing to the argument to say that they did not want ap­
pellants because of their color because appellants had no 
basic right to be served and the State’s action in enforc­
ing the criminal laws against trespass cannot be held to be 
“ state action” abridging the privileges or immunities of 
citizens of the United States. There is no privilege or 
immunity to trespass on private property. It should be re­
membered that the operators of the lunch counter in ques­
tion have a right not to be deprived of their property with­
out due process of law. This right is guaranteed to them 
under the same provisions of the Constitution now sought 
to be invoked by appellants. To hold that anyone may tres­
pass at will simply because his color is different from that 
of the property owner and that the law is powerless to 
protect the injured party would be inviting property 
owners to provide their own means of evicting trespassers. 
This would not be consonant with the principles of a 
nation which regards good order as one of the fundamental 
objectives of society. The Supreme Court of the United 
States has approved a municipal ordinance designed to 
prevent trespass by providing that it should be unlawful 
for magazine subscription solicitors to go upon private 
property for the purpose of soliciting orders without hav­
ing been requested or invited to do so. B rear cl v. Alex­
andria, 341 U. S. 622, 71 Sup. Ct. 920, 95 L. Ed. 1233. 
In the Breard case the court rejected arguments of the 
appellant solicitor that the ordinance violated: (a) The 
due process clause of the Fourteenth Amendment; (b) The

Opinion of the Supreme Court of Arkansas



13a

Federal Commerce Clause; (c) The guarantees of the First 
Amendment of freedom of speech and the press (made 
applicable to the states by the Fourteenth Amendment).

In the Breard case the court said:

“ Since it is not private individuals but the local and 
federal governments that are prohibited by the First 
and Fourteenth Amendments from abridging free 
speech or press, Hall v. Virginia does not rule a convic­
tion for trespass after notice by ordinance. However, 
if as we have shown above, p. 1247, a City Council may 
speak for the citizens on matters subject to the police 
power, we would have in the present prosecution the 
time-honored offense of trespass upon private grounds 
after notice. Thus, the Marsh and Tucker cases are 
not applicable here.”

We think the quoted language makes it abundantly 
clear that the act of discrimination in refusing service 
is that of the individual and thus not subject to the in­
terdiction of the Fourteenth Amendment. The same lan­
guage also makes it clear that in prosecuting for trespass 
the State is making a valid exercise of police power. In 
other words, it makes no difference as to why the individual 
lunch counter operator did not want the appellants on the 
premises, because if they remained after a request to leave 
they became trespassers and the State prosecuted for tres­
pass and not to enforce discrimination.

Sufficiency of E vidence in L upper Case

As previously mentioned, there was sufficient evidence 
to support the verdict of the jury in finding that the de­
fendants Lupper and Robinson refused to leave the prem­
ises after having been requested to do so by the manager.

Opinion of the Supreme Court of Arkansas



14a

It is not our province to pass upon the weight of the evi­
dence. It requires no citation of cases as to the familiar 
rule that we may not go behind the verdict of a jury 
which is supported by substantial evidence.

Refusal of Requested Instructions

The appellants complain of the action of the trial court 
in refusing to give two instructions requested by them. 
However, a comparison of the instructions which were 
refused with those which were given by the court makes 
it crystal clear that the subject matter of the rejected 
instructions was adequately covered by the instructions 
given. Harrison v. State, 222 Ark. 773, 2G2 S. W. 2d 907.

E xcessiveness and H arshness of Judgment

The appellants contend that the fines and punishment 
meted out to them were excessive and harsh even though 
they did not exceed the penalties provided by Act 14. This 
contention has been rejected many times by this court. 
See: Johnson v. State, 214 Ark. 902, 21S S. W. 2d 6S7.

Conclusion

For the error indicated, the convictions under Aci 226 
of 1959 are reversed and the cases having been fully de­
veloped are dismissed.

The convictions of Lupper and Robinson under Act 14 
of 1959 are affirmed.

Robinson, J., dissents in part; Holt, J., disqualified.

Opinion of the Supreme Court of Arkansas



15a

I n  the Supreme Court of A rkansas 

October Term, 1962—May 13,1963

------------------- o -------------------

Chester B riggs et ah,
Appellants,

—v.—

Judgment of the Supreme Court of Arkansas

T he State of A rkansas,
Appellee.

------------------- o -------------------

Appeal from Pulaski Circuit Court, First Division 

J udgment

This cause came on to be heard upon the transcript of the 
record of the circuit court of Pulaski County, First Divi­
sion, and was argued by counsel; on consideration whereof 
it is the opinion of the Court that so much of the proceed­
ings and judgment of said circuit court involving the con­
victions of appellants Lupper and Robinson under Act 14 
of 1959 should be affirmed.

It is, therefore, considered by the Court that so much 
of the judgment of said circuit court in this cause rendered 
be, and the same is hereby, affirmed.

But it is further the opinion of the Court that there is 
error in so much of the proceedings and judgment of said 
circuit court in this cause which upheld the convictions of 
all the appellants under Act 226 of 1959.

It is, therefore, considered by the Court that so much of 
the proceedings and judgment of said circuit court be, and



16a

the same is hereby, reversed, annulled and set aside; and 
that this cause be dismissed.

It is further considered that said appellants recover 
of said appellee all their costs in this Court, in this cause 
expended. R obinson, J dissents in part; H olt, J dis­
qualified.

May 13,1963

Judgment of the Supreme Court of Arkansas



17a

Supplemental Opinion o f the Supreme Court of 
Arkansas Denying Rehearing

S upreme Court of A rkansas 

No. 4997

Opinion Delivered June 3 ,19G3

James F rank L upper, et al.,

—v.—
Appellants,

T he State of A rkansas,
Appellee.

On Rehearing 

Rehearing denied 
Jim Johnson, Associate Justice

Subsequent to the opinion delivered by this court in 
Lupper v. State on May 13,1963, the United States Supreme 
Court on May 20, 1963, rendered opinions in four “ sit-in” 
cases the pendency of which was specifically referred to in 
our opinion as cases in the nature of and similar to die 
cases at bar. The four cases are Avent v. North Carolina, 
# 1 1 ; Peterson v. City of Greenville, # 7 1 ; Lombard v. 
Louisiana, #58 ; and Gober v. Birmingham, #66.

Within the time prescribed by the rules of this court, 
appellants have petitioned for a rehearing urging recon­
sideration of pur opinion in the light of these recent pro­
nouncements of the United States Supreme Court.

A careful examination of copies of the official opinions 
in these cases furnished us by the Government Printing



18a

Supplemental Opinion of the Supreme Court of 
Arkansas Denying Rehearing

Office discloses that the court (in Lombard v. Louisiana, 
#58) summarized its own holdings as follows:

“ We have . . . held . . . that where an ordinance makes 
it unlawful for owners or managers of restaurants to 
seat white and Negroes together, a conviction under 
the State’s criminal processes employed in a way which 
enforces the discrimination mandated by that ordi­
nance cannot stand. Equally the State cannot achieve 
the same result by an official command which has at 
least as much coercive effect as an ordinance.”

In compliance with petitioners’ request for review, we 
have reexamined our opinion in the light of the cited cases 
and find that appellants did not claim nor was there any 
showing made relative to the existence of a state law or 
municipal ordinance' in the City of Little Lock which made 
it unlawful for owners or managers of restaurants or lunch 
counters to seat whites and Negroes together. Further, 
appellants did not claim nor was there any showing made 
that any official command was issued which could remotely 
have the coercive effect of a law requiring segregation of 
the races in restaurants pr lunch counters. In fact, from 
our assiduous review of the entire record before us, we 
have been unable to find any claim, evidence or showing 
indicating in the slightest respect that the decision of the 
manager in the case at bar do exclude these petitioners 
from the lunch room was anything except the exercise of 
freedom of choice. Having thus reviewed our opinion in 
the light requested, rehearing is denied.