Blow v. North Carolina Petition for a Writ of Certiorari to the Supreme Court of North Carolina

    I n  the

Bnptmw (Hmtt 0! %  Stairs
October Term, 1964 

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

R obert Blow and E llen Marie Davis,

v.
Petitioners,

State op North Carolina.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

J ack Greenberg 
Constance Baker Motley 
J ames M. Nabrit, III 
Derrick A. Bell, J r.

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners

Charles L. Black, J r. 
Samuel S. Mitchell 
F loyd B. McK issick

Of Counsel

J A M E S  M. NAlBjFillX., HI



I N D E X

PAGE

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

Jurisdiction ................................ _........... .......... ..... ...... 1

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

Constitutional, Statutory and Regulatory Provisions 
Involved .........................       3

Statement .......................................................................  4

How the Federal Questions Were Raised and Decided 
Below .................. .............. ........... ........... ................  6

Reasons for Granting the Writ ................................... 8
I. The State of North Carolina Has Encouraged 

and Enforced Racial Discrimination in Violation 
of the Equal Protection and Due Process Clauses 
of the Fourteenth Amendment............................ 9
A. Administrative regulations issued by the

State Board of Health regarding the segre­
gation of bathroom facilities in restaurants 
involve the State in the discrimination prac­
ticed in these cases ................. ..................... 9

B. These convictions enforce and encourage
racial discrimination in violation of the Four­
teenth Amendment to the Constitution of the 
United States .......................      13



11

PAGE

II. The Civil Rights Act of 1964 Now Secures to 
Petitioners the Right to the Conduct 'Which the 
State Seeks to Punish; Therefore,
A. Under federal law, these prosecutions are

abated .......... .................................................  16
B. These cases, if not reversed outright, should 

be remanded to the Supreme Court of North 
Carolina for its determination of the abative 
effect of the federal Civil Rights Act of 1964 .. 22

Conclusion ...................................................................  25

Appendix :

Opinion of Supreme Court of N. C. in State v. Ellen 
Marie Davis............................................................  la

Opinion of Supreme Court of North Carolina in State 
v. Robert Blow ....................................................... 7a

Judgment in State v. Ellen Marie Davis................... 9a
Judgment in State v. Robert Blow ............................ 10a
Certification of Record, State of North Carolina v. 

Ellen Marie Davis .................................................  11a
Certification of Record, State v. Robert Blow ..........  12a

Appendix B :

Statutory and Regulatory Provisions ..................... 13a



Ill

Table of Cases
page

Barr v. Columbia,-----U. S .------ , 12 L. Ed. 2d 766 .... 13
Bell v. Maryland, -----  U. S. ----- , 12 L. Ed. 2d

822 .............. .................. ......13,15,18,19, 20, 22, 23, 24, 25
Bouie v. City of Columbia,-----U. 8. ------, 12 L. Ed. 2d

894 .................... ................. - ........................ -..........  13
Burton v. Wilmington Parking Authority, 365 IT. S.

715 .......... ........... -________ _____ _____ ----- ----- 12

Fay v. New York, 332 U. S. 261 ...... ................-...........  15
Fox v. North Carolina,-----U. S .------ , 12 L. Ed. 2d

1032 ..............................- ....- - ........-......-----................ 2,12

Gibbons v. Ogden, 22 U. S. (9 Wheaton) 1 (1824) ......  18
Griffin v. Maryland,----- IJ. S .------, 12 L. Ed. 2d 754 .... 13

Hamm v. Rock Hill, No. 2, Oct. Term 1964, cert.
granted,-----U. S .------, 12 L. Ed. 2d 1042 ..............- 13

Hauenstein v. Lynham, 100 IJ. S. 483 —......... - ..........  22

Lupper v. Arkansas, No. 5, Oct. Term, 1964, cert, 
granted,----- IJ. S .------, 12 L. Ed. 2d 1043 ................ 13

Robinson v. Florida, -----  IJ. S. ----- , 12 L. Ed. 2d
711 ............................ ..............-----.......... - ......-11,12,13

Shelley v. Kraemer, 334 U. S. 1 .............-................ .... 14
Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173

(1942) ............-_________ ______________ -........ 18
Sperry v. Florida, 373 U. S. 379 (1963) ......... ........ -..... 18
State v. Broadway, 157 N. C. 598, 72 S. E. 987 (1911) .. 25
State v. Cress, 4 Jones (49 N. C.) 421 (1857) ----------  23
State v. Foster, 185 N. C. 674, 116 S. E. 561 (1923) .... 24
State v. Long, 78 N. C. 571 (1878) .......~..........- .......—- 23
State v. Massey, 103 N. C. 356, 9 S. E. 632 (1889) ....... 23



IV

PAGE

State v. Moon, 178 N. C. 715, 100 S. E. 614 (1919) . 25
State v. Perkins, 141 N. C. 797, 53 S. E. 735 (1906) _ 25
State v. Putney, 61 N. C. 543 (1866-67) ........................  25
State v. Williams, 97 N. C. 455, 2 S. E. 55 (1887) . 23

Testa v. Katt, 330 U. S. 386 ______ 1_______ ____ 22
Trustee of Monroe Ave. Church, of Christ v. Perkins,

334 U. S. 813 ............... ..............................................  14
Turner v. Memphis, 369 U. S. 350 .................. .............  12

United States v. Chambers, 291 U. S. 217 (1934) ___  18
United States v. Tynen, 78 U. S. (11 Wall.) 88 (1871) .... 18

Williams v. North Carolina,-----U. S .------ , 12 L. Ed.
2d 1032 ..................................... ..... ........... ................ 12

S t a t u t e s

Civil Eights Act of 1964, §§201-203, 78 Stat. 243 
244 ........ ............. ............ .....3,14,16,17,18, 20, 21, 25,13a

N. C. Gen. Stat. §12-2 (1953) ................   ...3,23,16a
N. C. Gen. Stat. §12-4 (1953) ....   ...3,23,16a
N. C. Gen. Stat. §14-134 (1953) ............................3, 4, 6 ,16a
N. C. Gen. Stat. §72-1 (1963) .............. ................3,7,12,16a
N. C. Gen. Stat. §72-46 (1953) ............................... ..3, 9 ,17a
N. C. Gen. Stat. §72-47 (1953) ........... ........... ........ 3,10,18a
N. C. Gen. Stat. §72-48 (1953) ............................. . . .3, 11,18a
N. C. Gen. Stat. §72-48.1 (1953) ............................ 3,11,18a
1 U. S. C. §109, 61 Stat. 635 ........... .. .......... ........3,19,15a



Y

Other Authorities
page

House Committee on Civil Rights Aet, H.R. Rep.
No. 914, 88th Cong., 1st Sess. (1963) ......................— 21

Million, Expiration or Repeal of a Federal or Oregon 
Statute as a Bar to Prosecution for Violation There­
under, 24 Ore. L. Rev. 25 (1944) ---------......... - ....  20

Report of North Carolina Committee to U. S. Commis­
sion on Civil Rights (1962), Equal Protection of the 
Laws of North Carolina...... —......................—-..........  H

Test Form 451, revised 1958 of the North Carolina 
State Board Health Sanitary Engineering Division,
Law Rules and Regulations Governing Sanitation of 
Restaurants and Other Food Handling Establish­
ments ............... ......... -.......................- .................  3, 20a



I n t h e

dhtprem? Qlmtrt of tl)0 Ittttpft States
October Term, 1964 

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

R obert Blow and E llen Marie Davis,

Petitioners,

State of North Carolina.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgments of the Supreme Court of North Carolina 
entered in the above-entitled cases on March 18, 1964.

Citations to Opinions Below

The opinions of the Supreme Court of North Carolina 
are reported at 261 N. C. 463, 135 S. E. 2d 14 (1964), and 
261 N. C. 467, 135 S. E. 2d 17 (1964) and are set forth in 
the appendix hereto, infra, pp. la, 7a.

Jurisdiction

The opinions and judgments of the Supreme Court of 
North Carolina were entered on March 18, 1964, infra, 
pp. la, 7a, 9a, 10a. On June 24, 1964, the Chief Justice



2

signed an order extending petitioners’ time for filing peti­
tion for writ of certiorari to and including August 15, 1964.

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

Questions Presented

1. Where petitioners, two Negroes, were convicted of 
trespass for refusing to leave the property of a North 
Carolina restaurateur and motel owner, who refused them 
service and demanded that they leave solely because of their 
race, were their Fourteenth Amendment rights to due 
process and equal protection violated, in that:

(A) The state has encouraged racial discrimination in 
restaurants by administrative regulation as in the case of
Fox v. North Carolina,-----U. S .------ , 12 L. Ed. 2d 1032,
and by laws denying Negroes rights guaranteed white 
persons at inns.

(B) The state enforces racial discrimination by arrest 
and prosecution; the discrimination has been caused at 
least in part, by a custom of segregation supported by 
state law; and the state subordinates petitioners’ claims 
of equality in the public life of the community to a narrow 
property right.

2. In such a case, are the prosecutions abated by the 
passage of the Civil Bights Act of 1964 while these cases 
were pending:

(A) as a matter of federal law, or in the alternative
(B) must they be remanded for a decision as to abate­

ment under state law.



3

Constitutional, Statutory and Regulatory 
Provisions Involved

1. This case involves the following provisions of the 
Constitution of the United States:

Article 1, Section 8, Clause 3;
Article VI, paragraph 2;
The Fourteenth Amendment.

2. This case involves the following statutes of the United 
States.1

Civil Rights Act of 1964, §§201-203, 78 Stat. 243, 244; 
1 U. S. C. §109, 61 Stat. 635.

3. This case involves the following North Carolina Gen­
eral Statutes.2

N. C. Gen. Stat. §12-2 (1953);
N. C. Gen. Stat. §12-4 (1953);
N. C. Gen. Stat. §14-134 (1953);
N. C. Gen. Stat. §72-1 (1953);
N. C. Gen. Stat. §72-46 (1953);
N. C. Gen. Stat. §72-47 (1953);
N. C. Gen. Stat. §72-48 (1953);
N. C. Gen. Stat. §72-48.1 (1953).

4. This case also involves test form 451, revised 1958, 
Law Rules and Regulations Governing the Sanitation of

Set forth infra at pp. 13a-16a. 
Set forth infra at pp. 16a-19a.



4

Restaurants and Other Food Handling Establishments pre­
pared by the North Carolina State Board of Health Sani­
tary Engineering Division.3

Statement

Petitioners, two Negroes, were arrested while engaging 
in a peaceful protest outside the Plantation Restaurant and 
Enfield Motel, Enfield, North Carolina after they had been 
denied entry into the restaurant. They were convicted of 
“trespass” in violation of North Carolina General Statutes 
§14-134, infra p. 16a.

The Plantation Restaurant and the adjoining Enfield 
Motel, located on interstate highway 301, are owned by the 
complaining witness, Mr. W. R. Davis (D. 15, 18, 19; B. 15, 
16, 17).4 He manages the restaurant and his wife the 
motel (B. 20). Both places are advertised together along 
the highway, on the radio, and in newspapers. The motel 
advertises the restaurant in its rooms, and guests from 
the motel eat at the restaurant. Air. Davis does not indi­
cate in any of these advertisements that the facilities do 
not serve Negroes (D. 19, 20; B. 17, 18).

Shortly before noon on August 7, 1963, petitioners, as 
part of a group of thirty-five, approached the restaurant at 
which they had been denied service the previous evening 
(D. 16, 17). Although he knew that they sought service 
(B. 21), Mr. Davis locked the restaurant upon petitioners’ 
approach because of their color (D. 17; B. 21):

“The reason I locked the door was because the defen­
dant was a Negro and I am white. The restaurant

3 Set forth infra at pp. 20a-22a.
4 “D” refers to record in Davis v. North Carolina.; “B” refers 

to record in Blow v. North Carolina.



5

I operate serves white and not Negroes; that is the 
reason I locked the door” (D. 17).

Although Mr. Davis’ property extended out to Highway 
301, two “white only” signs (D. 18; B. 21) hanging inside 
the front doors were the only indication on the premises 
or on the advertisements that Negroes were not welcome 
(D. 19; B. 17).

Upon reaching the locked doors, petitioner Davis sat 
down ontside the restaurant (D. 15). Mr. Davis took hold 
of her shoulder and moved her away from the door (D. 16), 
and asked petitioners to leave his grounds (B. 16).

Petitioners were neatly dressed and did not block white 
patrons from entering the restaurant (D. 20, 22; B. 21, 24). 
Mr. Davis “would open the front door and lock it, admitting 
white patrons, while the defendant was outside” (B. 21), 
and wanted petitioners to leave his grounds solely because 
they were Negro.

“She was neatly dressed and the only reason I asked 
her to leave was that she was colored” (D. 18).

Mr. Davis decided to “indict” them for trespass (B. 22), 
and officers, who were “well aware of [the] policy of not 
serving Negroes” (D. 22), arrived and arrested petitioners 
for “trespass” because they refused to leave the property 
(D. 20, 21, 22; B. 24). The officers testified that petitioner 
Davis was not doing anything except sitting on a planter 
(D. 23), and Blow was only standing by the planter, several 
feet from the door (B. 23). One arresting officer had in the 
past arrested a white man at the restaurant for disorderly 
conduct, but no white person has ever been arrested on 
the charge of trespass at the restaurant (D. 22, 23).

Petitioners waived preliminary hearings in the Mayor’s 
Court and the County Solicitor waived hearing in the



6

Comity Recorder’s Court. The petitioners were tried sep­
arately before juries in the Superior Court of Halifax 
County (D. 14, 15; B. 14, 15). Petitioners (after raising 
constitutional defenses discussed, infra, pp. 6-7), were 
convicted of trespass under North Carolina General Stat­
utes §14-134 and sentenced to twelve months in jail, the 
sentence suspended on the condition they pay the costs, 
pay a fine of $250, and violate no laws for a period of three 
years (D. 12; B. 12). The Supreme Court of North Carolina 
affirmed petitioners’ convictions on March 18, 1964 (infra, 
pp. la, 7a).

How the Federal Questions Were 
Raised and Decided Below

In the Superior Court of Halifax County, petitioners 
moved for judgment as of nonsuit after the reading of the 
indictment. In summary petitioners contended North Caro­
lina General Statutes §14-134 violated the United States 
Constitution as applied to them because:

1) The Fourteenth Amendment prevents a state from 
using its criminal law a) to enforce the racially dis­
criminatory practices of a private restaurant owner 
once that owner has opened his property to the general 
public, b) to inhibit the exercise of free speech in a 
place opened to the public at large.
2) The Fourteenth Amendment and Article 1, Section 
10 of the United States Constitution prevent inter­
preting a statute to include conduct which clearly 
falls outside the wording of a statute. Such applica­
tion makes the statute unconstitutionally vague in fail­
ing to give fair warning that conduct is criminal within 
the terms of the statute and amounts to retroactive 
legislation.



7

3) The statute delegates legislative power and the 
power to cause arbitrary and capricious arrests of a 
person in violation of the Fourteenth Amendment.
4) Petitioner is denied the right to contract and the 
benefits therefrom as guaranteed by the Fourteenth 
Amendment and 42 U. S. C. §§1981, 1982.
5) Failure of the state court to apply N. C. Gen. Stat. 
§72-1, “The Innkeepers Rule,” which establishes stand­
ards of practice for innkeepers, was a violation of the 
Fourteenth Amendment.

The motions for judgment as of nonsuit were denied 
(D. 3-11; B. 3-11). Petitioners pleaded not guilty and were 
tried before a jury (B. 11; D. 11).

Following the State’s case, each petitioner again moved 
for judgment as of nonsuit. The motions were denied and 
exceptions taken (D. 23; B. 25). Petitioners offered no 
evidence but again submitted written motions for judgment 
as of nonsuit which were denied and exceptions taken 
(D. 24; B. 25).

After a guilty verdict, each defendant moved to set the 
verdict aside reiterating the contentions set out in the 
motions for judgment as of nonsuit. These new motions 
were denied and exceptions taken (I). 31; B. 34). .Defen­
dants also moved for new trials alleging errors in the 
progress of the trial. Motions were denied and exceptions 
taken (D. 31; B. 34).

As assignments of error on appeal to the Supreme Court 
of North Carolina, petitioners raised the questions pre­
sented in the motions for judgment as of nonsuit and 
assigned that these motions were erroneously denied (D. 31- 
34 ;B. 34-38).



The Supreme Court of North Carolina explicitly rejected 
petitioner Davis’ constitutional objections, infra, pp. la-6a, 
holding:

that where a person without permission or invitation 
enters upon the premises of another, and after entry 
thereon his presence is discovered and he is uncon­
ditionally ordered to leave the premises by one in the 
legal possession thereof, if he refuses to leave and 
remains on the premises, he is a trespasser from the 
beginning. . . .  We further hold that the provisions of 
Gf. S. 14-134 do not conflict with Article 1, Section 17 
of the Constitution of North Carolina or with the 
Privileges and Immunities, Due Process and Equal 
Protection Clauses of the Fourteenth Amendment to 
the Constitution of the United States.

Petitioner Blow’s conviction was affirmed per curiam on the 
basis of the Davis opinion, infra, pp. 7a-8a.

Reasons for Granting the Writ

This case involves substantial questions affecting im­
portant constitutional rights, resolved by the court below 
in conflict with principles expressed by this Court.



9

I.
The State of North Carolina Has Encouraged and En­

forced Racial Discrimination in Violation of the Equal 
Protection and Due Process Clauses of the Fourteenth 
Amendment.

A. A d m in is tra tive  regula tions issued  by  the  S ta te  B o ard  o f  
H ealth  regarding  th e  segregation o f b a th ro o m  facilities in  
restauran ts invo lve  th e  S ta te  in  th e  d iscrim in a tio n  prac­
ticed  in  these  cases.

Administrative action in the nature of regulations deal­
ing with the maintenance of toilet facilities in restaurants 
has been in effect in North Carolina at all times pertinent 
to this case. Restaurants in North Carolina cannot operate 
without attaining the minimum grade of C in accordance 
with tests regulated by the State Board of Health. In par­
ticular, N. C. Gen. Stat. §72-46 provides: .

State Board of Health to regulate sanitary conditions 
of hotels, cafes, etc.—For the better protection of the 
public health, the State Board of Health is hereby au­
thorized, empowered and directed to prepare and en­
force rules and regulations governing the sanitation 
of any . . . restaurant . . . The State Board of Health 
is also authorized, empowered and directed to

(1) Require that a permit be obtained from said 
Board before such places begin operation, said 
permit to be issued only when the establishment 
complies with the rules and regulations author­
ized hereunder, and

(2) To prepare a system of grading all such places 
as Grade A, Grade B and Grade C.

No establishment shall operate which does not re­
ceive the permit required by this section and the mini-



10

mum grade of C in accordance with the rules and regu­
lations of the State Board of Health. The rules and 
regulations shall cover such matters as . . . lavatory 
facilities . . .

Under this authorization, the State Board of Health ad­
ministers an inspection form on the basis of 1000 points 
which provides in the relevant passage:

6. T oilet F acilities : Approved facilities and ap­
proved disposal 90* (facilities adequate for each 
sex and race 10* . . .) (Form No. 451, revised 
July 1958, Law, Rules and Regulations Governing 
the Sanitation of Restaurant and Other Foodhan­
dling Establishments, prepared by the North Caro­
lina State Board of Health Sanitary Engineering 
Division, at pp. 26-27.5

In addition to the relevancy of these regulations in the 
licensing process, statutes provide for the continued in­
spection of operating establishments on the basis of the 
same test.

N. C. Gen. Stat. §72-47.—Inspections; report and grade 
card. The officers, sanitarians or agents of the State 
Board of Health are hereby empowered and authorized 
to enter any . . . restaurant . . .  It shall be the duty 
of the sanitarian or agent of the State Board of 
Health to leave with the management, or person in 
charge at the time of the inspection, a copy of his 
inspection and a grade card showing the grade of such 
place, and it shall be the duty of the management, or 
person in charge to post said card in a conspicuous

5 The entire test form is set out infra, pp. 20a-22a. * stands for 
points.



11

place designated by the sanitarian where it may be 
readily observed by the public.

Violations of these provisions are punishable by fine and 
imprisonment, N. C. Gen. Stat. §72-48, and the State Health 
Director can sue to enjoin the operation of a restaurant 
which does not meet minimum standards. N. C. Gen. Stat. 
§72-48-1. See also, Equal Protection of the Laws of North 
Carolina, Report of the North Carolina Committee to the 
United States Commission on Civil Rights (1962), p. 220.

Recently in Robinson v. Florida, -----  U. S. ——•, 12
L. Ed. 2d 771, involving several Negro persons who re­
mained in a restaurant after being asked to leave, this 
Court reversed the conviction in light of a regulation re­
quiring separate toilet facilities in restaurants. The Court 
held,

While these Florida regulations do not directly and 
expressly forbid restaurants to serve both white and 
colored people together, they certainly embody a state 
policy putting burdens upon any restaurant which 
serves both races, burdens bound to discourage the 
serving of the two races together. Of course, state 
action, of the kind that falls within the proscription of 
the Equal Protection Clause of the Fourteenth Amend­
ment, may be brought about through the State’s ad­
ministrative and regulatory agencies, just as through 
its legislature. Cf. Lombard v. Louisiana, supra, 373 
U. S. at 273. Here, as in Peterson v. City of Green­
ville, supra, we conclude that the State through its 
regulations has become involved to such a significant 
extent in bringing about restaurant segregation that 
appellants’ trespass convictions must be held to re­
flect that state policy and therefore to violate the Four­
teenth Amendment (at 773, 774).

On the same day, this Court vacated the judgment in a 
restaurant demonstration case coming from North Caro-



12

lina, Fox, et al. v. North Carolina, -----  U. S. ——, 12
L. Ed. 2d 1032, after the North Carolina regulation dis­
cussed above had been brought to its attention. In a per 
curiam opinion, the Court vacated the judgment in light of 
Robinson v. Florida, supra; see also Williams v. North
Carolina,-----U. S. ------ , 12 L. Ed. 2d 1032. Fox, et al.
v. North Carolina, therefore, requires that, at the least, 
the judgments of the North Carolina Supreme Court in 
these cases be vacated.

In addition to the clear State involvement in light of 
Fox and Robinson, the State of North Carolina has become 
involved in the racial discrimination practiced in these 
cases by denying Negroes guarantees of service at inns 
afforded white persons. North Carolina statutory law con­
fers upon an innkeeper the duty of service.

N. C. Gen. Stat. §72-1—Must furnish accommodations 
—Every innkeeper shall at all times provide suitable 
food, rooms, beds and bedding for strangers and 
travelers whom he may accept as guests in his inn or 
hotel.

In the common law tradition, the innkeeper must accept all 
wayfarers,

. . . unless they be persons of bad or suspicious char­
acter, or of vulgar habits, or so objectionable to the 
patrons of the house, on account of the race to which 
they belong, that it would injure the business to ad­
mit them to all portions of the house . . . Stale v. 
Steele, 106 N. C. 766, 11 S. E. 478 (1890).

The laws of North Carolina, therefore, deny equal protec­
tion by conferring on white persons rights which are not 
afforded Negroes. See: Turner v. Memphis, 369 U. S. 350, 
352; Burton v. Wilmington Parking Authority, 365 U. S, 
715, 726-727 (concurring opinion).



13

Mr. Davis, the complaining witness, owned both restau­
rant and motel. Although the trial judge excluded testi­
mony about the interconnections of the two establishments 
(D. 19; B. 18, 19, 20), the record clearly states that Mr. 
Davis’ motel and restaurant are 60 feet apart on the same 
lot of ground and operated together (D. 15, 16, 17, 18, 19; 
B. 15, 19). The Supreme Court of North Carolina rejected 
the argument on the grounds (1) that petitioners sought 
service at the restaurant and not at the motel and (2) that 
the motel was managed by Mrs. Davis while the restaurant 
was managed by Mr. Davis, infra at p. 5a. But the restau­
rant is operated to a significant extent in cooperation with 
the motel. Quests at the motel are encouraged to eat at the 
restaurant and some of them do (D. 20; B. 18). If the in­
fluence of state policy is felt in Mr. Davis’ motel, that in­
fluence would reasonably extend to his operation of the
restaurant. Robinson v. Florida, ----- IT. S .------ , 12 L. Ed.
2d 771.

B. T h ese  convictions en fo rce  and encourage racial d iscrim ina ­
tio n  in  v io la tion  o f  the  F o u rteen th  A m e n d m e n t to  the  
C o nstitu tion  o f  th e  U nited  States.

This petition presents issues identical to those presented
to this Court in Barr v. Columbia, -----U. S. ——, 12 L. Ed.
2d 766; Bell v. Maryland, -----  U. S. ----- , 12 L. Ed. 2d
822; Bouie v. City of Columbia, —— IT. S .----- , 12 L. Ed.
2d 894; Griffin v. Maryland,-----U. S. ------, 12 L. Ed. 2d
754; Robinson v. Florida,-----U. S .------ , 12 L. Ed. 2d 771.
Each of these state convictions was reversed on grounds 
other than the “state action” issue presented. The same 
issue is now pending decision before this court in two other 
cases involving convictions for trespass at places of public 
accommodation: Hamm v. Rock Hill, No. 2, October Term
1964, petition for cert, granted ——■ U. S .----- , 12 L. Ed. 2d
1042; Lupper v. Arkansas, No. 5, October Term 1964, peti-



14

tion for cert, granted-----U. S. - — , 12 L. Ed. 2d 1043.
Where a petition for certiorari presents questions identical 
with, or similar to, issues already pending before this 
Court in another case in which certiorari has been granted, 
the petition is appropriate for review. Compare Trustee 
of Monroe Ave. Church of Christ v. Perkins, 334 U. S. 813, 
with Shelley v. Kraemer, 334 U. S. 1.

Petitioners’ argument here is threefold. Firstly, the use 
of state judicial machinery in the arrest, conviction, and 
punishment of petitioners is an exercise of state power in 
the Fourteenth Amendment sense. With the utmost re­
spect, petitioners submit that Shelley v. Kraemer, 334 U. S. 
1, is applicable and cannot properly be distinguished. By 
this exercise of state power, the state enforces and encour­
ages the custom and usage of racial discrimination and 
segregation in the state.

Second, the segregation custom has been caused, at least 
in part, by laws of the state of North Carolina. Laws 
causally affect social customs beyond the time of their in­
validation or repeal and beyond the range of their enforc- 
able scope.

Thirdly, state power is involved to a significant degree 
where the state has preferred the discriminator’s insub­
stantial property claim to the petitioners’ claim of equal 
treatment in places of public accommodations.

These cases present additional factors not heretofore 
considered by this Court. Since the last time these issues 
were presented to the Court, Congress has enacted the 
Civil Rights Bill of 1964, 78 Stat. 241 (discussed further 
with regard to its abative effect upon these convictions, 
infra, pp. 16-25). Congress has prohibited discrimination 
or segregation supported by “state action” in certain estab­
lishments of public accommodation. §201 provides, inter 
alia,



15

§201 (b) Each of the following establishments which 
serves the public is a place of public accommodation 
within the meaning of this title if its operations affect 
commerce, or if discrimination or segregation by it is 
supported by State action:

(2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility principally 
engaged in selling food for consumption on the prem­
ises, including, but not limited to, any such facility 
located on the premises of any retail establishment; or 
any gasoline station; . . .  78 Stat. 243. (Emphasis sup­
plied.)

“State action” in this regard is defined by Congress:
§201 (d) Discrimination or segregation by an estab­
lishment is supported by State action within the mean­
ing of this title if such discrimination or segregation 
(1) is carried on under color of any law, statute, ordi­
nance, or regulation; or (2) is carried on under color 
of any custom or usage required or enforced by officials 
of the State or political subdivision thereof; or (3) is 
required by action of the State or political subdivision 
thereof. 78 Stat. 243.

Congress has specifically considered the problem of racial 
discrimination in places of public accommodation as re­
lated to State action prohibited by the Fourteenth Amend­
ment. Petitioners submit that the complexities of this prob­
lem considered most recently by this Court in the opinions 
in Bell v. Maryland, supra, show it a particularly appro­
priate area for Congressional guidance. See: Fay v. New 
York, 332 U. S. 261, 283.



16

II.

The Civil Rights Act of 1964 Now Secures to Peti­
tioners the Right to the Conduct Which the State Seeks 
to Punish; Therefore,

A. U nder fed era l law , these p ro secu tions are abated.

On July 2, 1964, the President signed the Civil Rights 
Act of 1964, 78 Stat. 241 providing, inter alia:

T itle II See. 201. (a) All persons shall be entitled 
to the full and equal enjoyment of the goods, services, 
facilities, privileges, advantages, and accommodations 
of any place of public accommodation, as defined in 
this section, without discrimination or segregation on 
the ground of race, color, religion, or national origin.

(b) Each of the following establishments which 
serves the public is a place of public accommodation 
within the meaning of this title if its operations affect 
commerce, or if discrimination or segregation by it is 
supported by State action: . . .

* # # # *
(2) any restaurant. . .

* * # * #
(c) The operations of an establishment affect com­

merce within the meaning of this title if . . .  (2) in 
the case of an establishment described in paragraph 
(2) of subsection (b), it serves or offers to serve inter­
state travelers or a substantial portion of the food 
which it serves, or gasoline or other products which 
it sells, has moved in commerce; . . .  78 Stat. 243.

The Plantation Restaurant clearly falls within the terms 
of this statute. The restaurant is located on interstate high­
way 301 (D. 15, 18, 19; B. 15, 16, 17), and is advertised 
on billboards “for some distance coming into Enfield and



17

for some miles going out of Enfield” (D. 19). Advertise­
ments also appear in newspapers, on the radio, and in the 
rooms of the adjoining motel (D. 19, 20; B. 17). This res­
taurant is clearly one which “offers to serve interstate 
travelers” under the terms of §201(C)(2), supra.

An independent part of §201 extends coverage to a res­
taurant if the “discrimination or segregation by it is sup­
ported by State action,” §201 (b), supra. This section is 
defined by §201 (d), 78 Stat. 243:

Discrimination or segregation by an establishment is 
supported by State action within the meaning of this 
title if such discrimination or segregation (1) is carried 
on under color of any law, statute, ordinance, or regu­
lation; or (2) is carried on under color of any custom 
or usage required or enforced by officials of the State 
or political subdivision thereof; or (3) is required by 
action of the State or political subdivision thereof.

Petitioners submit that in the case at hand, the discrim­
ination was carried on “under color of any custom or 
usage required or enforced by officials of the state. . . . ” 
The arrest, conviction, and punishment of these petitioners 
for their refusal to obey an order which was admittedly 
discriminatory and in furtherance of a policy of racial seg­
regation (D. 17, 22; B. 21), meet the terms of the Act.

By either view of the Act’s coverage, therefore, had 
these alleged offenses occurred after its passage, the Civil 
Rights Act would furnish a complete defense. §203, 78 
Stat. 244 specifically provides that:

“No person shall . . . (c) punish or attempt to punish 
any person for exercising or attempting to exercise 
any right or privilege secured by section 201 or 202.”



18

Senator Humphrey, floor manager for the Senate, read into 
the record a Justice Department statement explaining 
§203(c).

“This [§203(c)] plainly means that defendant in a 
criminal trespass, breach of the peace, or other sim­
ilar case can assert the rights created by 201 and 202 
and that state courts must entertain defenses grounded 
upon these provisions.” Cong. Record, 88th Cong., 1st 
Sess. 9162-3 (May 1,1964).

Not only the text of the Act, but all the implications of 
the text are matters of the federal law, completely over­
riding contradictory state law. Gibbons v. Ogden, 22 U. S. 
(9 Wheaton) 1 (1824); Sola Elec. Co. v. Jefferson Elec. 
Co., 317 U. S. 173 (1942); Sperry v. Florida, 373 U. S. 379 
(1963). Federal authority has therefore removed the “of­
fense” charged in the cases at bar from the state’s category 
of punishable crimes, and petitioners submit that federal 
law abates their convictions and the forthcoming punish­
ment.

The general federal rule is that a change in the law, 
prospectively rendering that conduct innocent which was 
formerly criminal, abates prosecutions which were started
under the prior law. See Bell v. Maryland, —— U. S .----- ,
12 L. Ed. 2d 822, 826-7, n. 2; United States v. Chambers, 291 
U. S. 217 (1934); United States v. Tynen, 78 U. S. (11 
Wall.) 88 (1871). Though the case has apparently never 
arisen, there would seem to be no reason for the non­
application of this rule to the operation of a federal statute 
upon a state proceeding where the federal statute has the 
effect of securing the right to conduct which formerly was 
unlawful, and rendering unlawful the actions of the pro­
prietor whose interests the state prosecution seeks to pro­
tect. Cf. Bell v. Maryland, supra, at p. 828. Indeed the gen-



19

eral rule is a fortiori in this case because the federal author­
ity is paramount.

The only possible exception to this general rule is the 
first sentence of the Act of February 25, 1871, R. S. 13, 
now codified in 1 U. S. C. §109, 61 Stat. 635:

Repeal of statutes as affecting existing liabilities.— 
The repeal of any statute shall not have the effect to 
release or extinguish any penalty, forfeiture, or lia­
bility incurred under such statute, unless the repealing 
Act shall so expressly provide, and such statute shall 
be treated as still remaining in force for the purpose 
of sustaining any proper action or prosecution for the 
enforcement of such penalty, forfeiture, or liability. . . .

There are numerous reasons why this saving clause is 
inapplicable in the present case. This statute, even more 
limited than the one discussed by this court in the Bell 
case refers to “repeal” only. It seems inappropriate to label 
the effect of the Civil Rights Act upon the state trespass 
laws as a “repeal” or the equivalent of a repeal, Bell v. 
Maryland, supra, at p. 828. Also, it is very clear in the 
context and legislative history of the 1871 Act, that the 
Congress that passed it had in mind only the effect of one 
federal “statute” upon another, and never intended the 
crucial word “statute” to apply to state laws at all. It 
would violate normal canons of construction in criminal 
matters to stretch this wording to cover a problem in fed­
eral-state relations which its framers did not consider; 
see Million, Expiration or Repeal of a Federal or Oregon 
Statute as a Bar to Prosecution for Violation Thereunder, 
24 Ore. L. Rev. 25, 31, 32 (1944).

Further considerations demand this narrow reading of 
the saving clause. Where Congress has established affirma­
tive rights to conduct which previously had been labeled as



20

criminal, it would be strange indeed to infer an intent of 
Congress that states carry out punishment under the old 
criminal label. As said in Bell v. Maryland, supra:

. . . The legislative policy embodied in the superven­
ing enactments here would appear to be much more 
strongly opposed to that embodied in the old enactment 
than is usually true in the case of an “amendment” or 
“repeal.” It would consequently seem unlikely that the 
legislature intended the saving clause to apply in this 
situation, where the result of its application would be 
the conviction and punishment of persons whose 
“crime” has been not only erased from the statute books 
but officially vindicated by the new enactments. A leg­
islature that passes a public accommodations law mak­
ing it unlawful to deny services on account of race 
probably did not desire that persons should still be 
prosecuted and punished for the “crime” of seeking 
service from a place of public accommodations which 
denies it on account of race. Since the language of the 
saving clause raises no barrier to a ruling in accordance 
with these policy considerations, we should hesitate 
long indeed before concluding that the Maryland Court 
of Appeals would definitely hold the saving clause ap­
plicable to save these convictions. 12 L. Ed. 2d 829.

When working within the area of its own responsibility, 
this court should hesitate expanding a narrowly drawn 
saving clause, with the result of condoning the punishment 
of petitioners for doing what Congress has, in one of the 
great legislative enactments of our time, said that it is in 
the national interest they be allowed to do unpunished.

Secondly, the Civil Rights Act of 1964 speaks of the 
rights and privileges of equal treatment in places of public



21

accommodation as “secured” from punishment by the Act, 
§203(c), supra. The normal dictionary meaning of the 
word “secured” and the legislative history of the Act go 
far in indicating that Congress looked towards the protec­
tion from punishment of persons who had exercised 
“rights,” at least of a moral nature, before the passage 
of the Act. House Comm., on Civil Rights Act H. R. Rep. 
No. 914, 88th Cong., 1st Sess. (1963).

One need not become concerned with questions of a 
“retroactive” application of the Civil Rights Act. The 
Act, when defining “discrimination . . . supported by State 
action, . . . ” (§201(d)), supra, and when forbidding punish­
ment for the exercise of secured rights §203 (c), supra, is 
directed towards the elimination of State enforced segre­
gation customs in places of public accommodation. The 
convictions and punishment of these petitioners, which the 
State of North Carolina here seeks to enforce before this 
Court, as the highest court in the appellate processing of 
these convictions, are the very actions in furtherance and 
perpetuation of racial discrimination against which Con­
gress has acted.

We ask here whether this Court should avoid the direc­
tive against punishment embodied in the act and the gen­
eral federal policy of abating these prosecutions by a broad 
reading of the saving clause. Petitioners submit that such 
an unprecedented, lavish, reading would be an anomaly 
in light of the above considerations and the fact that peti­
tioners face punishment for conduct which Congress has 
declared to be in the national interest, outlawing contrary 
private and state concerns.

Avoidance of this anomaly would not alone be a sufficient 
ground for reversal if the technical grounds were shaky. 
They are not, they are quite solid. The supervening fed-



22

eral law, paramount in authority, cannot have less effect on 
state law than it would on federal law. The settled federal 
rule, absent federal statute, would produce the effect of 
abatement. The one “saving” statute in this context and 
on the basis of legislative history is quite inapplicable to 
save these state convictions. These considerations cor­
respond exactly with the obvious equities of these cases, 
and no contrary public or private interests can now be 
asserted which have not been outlawed.

The settled federal rule of abatement, therefore applies 
to these judgments, and no statutory bar to its application 
exists. The judgments should be reversed on this ground 
and remanded for dismissal.

B. T h ese  cases, i f  n o t reversed o u tr ig h t, sh o u ld  be rem a n d ed  to  
th e  S u p re m e  C ourt o f  N orth  C arolina fo r  its d e term in a tio n  
o f the  abative e ffect o f  th e  fed era l C ivil R ig h ts  A ct o f  1964 .

The minimal result required in these cases by the deci­
sion in Bell v. Maryland, supra, is their remand to the 
state courts. In Bell, this Court remanded to the state court 
twelve trespass convictions under circumstances similar 
to those in the present cases, in order that the Maryland 
court could determine the effect of the Maryland public 
accommodations law enacted subsequent to state court pro­
ceedings, but while the cases were still under review. In 
the present cases, the Civil Rights Act of 1964 (discussed 
supra at 16-22), is the intervening statute requiring the 
redetermination by the North Carolina courts. Although 
this statute is federal, the federal law is a part of the law 
of each state. Hauenstein v. Lynkam, 100 U. S. 483; Testa 
v. Katt, 330 U. S. 386. At the least, therefore, the Bell hold­
ing requires the remand of these cases to the Supreme Court 
of North Carolina.



23

North Carolina, like Maryland, Bell v. Maryland, supra, 
at 826, follows the universal common-law rule that when the 
legislature removes the condemnation from conduct which 
was previously deemed criminal, pending criminal proceed­
ings are abated. In State v. Williams, 97 N. C. 455, 2 S. E. 
55, 56 (1887) the North Carolina Supreme Court held:

“The act punished must be criminal when judgment is 
demanded and authority to render it must still reside 
in the court.”

That pronouncement is one of a list of similar decisions. 
State v. Cress, 4 Jones (49 N. C.) 421 (1857); State v. 
Long, 78 N. C. 571 (1878); State v. Massey, 103 N, C. 356, 
9 S. E. 632 (1889).

North Carolina has two statutes which could conceivably 
limit the common law rule,

N. C. Gen. Stat. §12-2. Repeal of statute not to affect 
actions.—The repeal of a statute shall not affect any 
action brought before the repeal, for any forfeitures 
incurred, or for the recovery of any rights accruing 
under such statute.

N. C. Gen. Stat. §12-4. Construction of amended 
statute.—Where a part of a statute is amended it is 
not to be considered as having been repealed and re­
enacted in the amended form; but the portions which 

' are not altered are to be considered as having been 
the law since their enactment, and the new provisions 
as having been enacted at the time of the amendment.

The former statute is one even more narrowly drawn 
than the similar statute considered by the court in Bell, 
supra. The latter statute, rather than acting as a saving 
clause, appears to exclude liability where the basis of 
criminality no longer remains, see State v. Massey, supra,



24

at 633. What the Court said in Bell, supra, regarding the 
establishment of an affirmative right to previously “crim­
inal” conduct is applicable to both statutes:

“The absence of such terms [‘amendment’ and ‘re­
peal’] from the public accommodations laws becomes 
more significant when it is recognized that the effect 
of these enactments upon the trespass statute was 
quite different from that of an ‘amendment’ or even a 
‘repeal’ in the usual sense. These enactments do not 
—in the manner of an ordinary ‘repeal,’ even one that 
is substantive rather than only formal or technical— 
merely erase the criminal liability that had formerly 
attached to persons who entered or crossed over the 
premises of a restaurant after being notified not to 
because of their race; they go further and confer upon 
such persons an affirmative right to carry on such con­
duct, making it unlawful for the restaurant owner or 
proprietor to notify them to leave because of their 
race. Such a substitution of a right for a crime, and 
vice versa, is a possibly unique phenomenon in legis­
lation; it thus might well be construed as falling out­
side the routine categories of ‘amendment’ and ‘re­
peal.’ ” 12 L. Ed. 2d at 828.

These considerations are consistent with North Carolina 
law. Of those cases which have held that criminal liability 
is not abated by the repeal or amendment of a statute, all 
deal with statutes which were simply repealed and re­
enacted, or amended in some insubstantial way. In . each 
case, the conduct remained a crime after the change in the 
law. The repeal was a mere technicality in the enactment 
of a new statute which proscribed the same conduct. E.g., 
State v. Foster, 185 N. C. 674, 116 S. E. 561 (1923); State



25

y. Moon, 178 N. C. 715, 100 8. E. 614 (1919); State v. 
Broadway, 157 N. C. 598, 72 S. E. 987 (1911); State v. 
Perhins, 141 N. C. 797, 53 S. E. 735 (1906); State v. Putney, 
61 N. C. 543 (1866-67). The effect of the Civil Rights Act 
of 1964 is not so slight.

It suffices here to raise the question of the North Carolina 
law. If this Court does not reverse the convictions out­
right as a matter of federal law, the North Carolina court 
should be given the opportunity to decide the question of 
the abative effect of the Civil Rights Act of 1964 under 
North Carolina law. Bell v. Maryland, supra, at 830-831.

CONCLUSION

W herefore, for the foregoing reasons, petitioners pray 
tha t the petition for w rit of certiorari be granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
J ames M. Nabrit, III 
Derrick A. Bell, J r.

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners

Charles L. Black, J r, 
Samuel S. Mitchell 
F loyd B. McK issick 

Of Counsel



A P P E N D I C E S



APPENDIX

I n the
SUPREME COURT OF NORTH CAROLINA 

Spring Term, 1964 
No. 147—Halifax

State,

v.
E llen Marie Davis.

Appeal by defendant from Parker, J., October Criminal 
Session 1963 of Halifax.

The defendant was tried upon a bill of indictment charg­
ing her with a violation of the provisions of OS 14-134, in 
that she unlawfully trespassed upon the premises of the 
Plantation Restaurant at Enfield, North Carolina. The 
restaurant is owned and operated by William R. Davis, the 
prosecuting witness, who also owns the Enfield Motel 
located about 50 feet north of the restaurant on the same 
side of Highway 301. The restaurant serves white people 
only and has a sign to that effect at the entrance thereof.

The State’s evidence tends to show that the Plantation 
Restaurant is located about 65 feet from Highway 301 with­
in the town limits of Enfield; that on the night of 6 August 
1963 the defendant and other Negroes, approximately 35 
in number, forced their way into the Plantation Restaurant 
through the back door and took seats at tables where white 
customers were being served. That around noon on 7 
August 1963 the defendant, accompanied by approximately



2a

35 other Negroes, approached the front entrance of the 
Plantation Restaurant, and the owner of the restaurant 
locked the front door. The defendant sat down on the 
floor mat in front of the door. The owner of the restaurant 
unlocked the front door and repeatedly requested the de­
fendant and others to move away from the front door in 
order that his customers might enter the restaurant. He 
also requested them to leave the premises. Neither the de­
fendant nor the other Negroes present paid any attention 
to the requests of the proprietor of the restaurant. Offi­
cers were called, and the request to the defendant and the 
other Negroes to leave the premises of the restaurant was 
again made in the presence of the officers, and upon the 
failure of the defendant and others to unblock the en­
trance to the restaurant and leave the premises, the defen­
dant and others were arrested and charged with trespass.

The State’s evidence also tends to show that on this 
occasion the defendant never requested service at the 
restaurant.

The defendant moved for judgment as of nonsuit at the 
close of the State’s evidence. Motion denied. The defen­
dant offered no evidence.

The jury returned a verdict of guilty as charged in the 
bill of indictment. From the judgment imposed, the de­
fendant appeals, assigning error.

Attorney General Bruton; Deputy Attorney General 
R alph Moody for the State

T heaoseus T. Clayton ; W. 0 . W arner ; Samuel S. Mitch­
ell; F loyd B. McK issick for the defendant

Denny, C .J .

The appellant assigns as error the refusal of the court 
below to sustain her motion for judgment as of nonsuit.



3a

The defendant contends that GrS 14-134, which in per­
tinent part reads: “If any person after being forbidden to 
do so, shall go or enter upon the lands of another, without a 
license therefor, he shall be guilty of a misdemeanor,” is 
unconstitutional by reason of conflict with Article I, Sec­
tion 17 of the Constitution of North Carolina and the 
Privileges or Immunities, Due Process and Equal Protec­
tion Clauses of the Fourteenth Amendment to the Constitu­
tion of the United States; that said prosecution here rests 
upon an unlawful exercise of legislative power by a private 
citizen, to wit, the prosecuting witness. In other words, 
the defendant contends she has the inherent right to exer­
cise the fundamental freedom to enter upon the premises 
of any private business which is open to the public gen­
erally, whether she is forbidden to do so or not, and any 
abridgement of that right is unconstitutional.

This Court, in S. v. Clyburn, 247 NC 455, 101 SE 2d 295, 
speaking through Rodman, J., said: “Our statutes, GS 
14-126 and 134, impose criminal penalties for interfering 
with the possession or right of possession of real estate 
privately held. These statutes place no limitation on the 
right of the person in possession to object to a disturbance 
of his actual or constructive possession. The possessor may 
accept or reject whomsoever he pleases and for whatsoever 
whim suits his fancy. When that possession is wrongfully 
disturbed it is a misdemeanor. The extent of punishment 
is dependent upon the character of the possession, actual 
or constructive, and the manner in which the trespass is 
committed. Race confers no prerogative on the intruder; 
nor does it impair his defense.

“The Fourteenth Amendment to the Constitution of the 
United States created no new privileges. It merely pro­
hibited the abridgement of existing privileges by state ac­
tion and secured to all citizens the equal protection of 
the laws. * * *



4a

“ * * * (I) t is apparent the Legislature intended to pre­
vent the unwanted invasion of the property rights of an­
other, S. v. Cooke, supra (246 NC 518, 98 SE 2d 885;
S. v. Baker, 231 NC 136, 56 SE 2d 424. It is not the act 
of entering or going on the property which is condemned; 
it is the intent or manner in which the entry is made that 
makes the conduct criminal. A peaceful entry negatives 
liability under GS 14-126. An entry under a bona fide 
claim of right avoids criminal responsibility under GS 
14-134 even though civil liability may remain. S. v. Faggart, 
170 NC 737, 87 SE 197; S. v. Wells, 142 NC 590; S. v. 
Fisher, 109 NC 817, S. v. Crosset, 81 NC 579.

“What is the meaning of the word ‘enter’ as used in 
the statute defining criminal trespass? The word is used 
in GS 14-126 as well as GS 14-134. One statute relates to 
an entry with force; the other to a peaceful entry. We have 
repeatedly held, in applying GS 14-126, that one who re­
mained after being directed to leave is guilty of a wrongful 
entry even though the original entrance was peaceful and 
authorized. S. v. Goodson, supra (235 NC 177, 69 SE 2d 
242); S. v. Fleming, 194 NC 42, 138 SE 342; S. v. Bobbins, 
123 NC 730; S. v. Webster, 121 NC 586; S. v. Gray, 109 
NC 790 ; S. v. Talbot, 97 NC 494. The word ‘entry’ as used 
in each of these statutes is synonymous with the word ‘tres­
pass.’ It means an occupancy or possession contrary to the 
wishes and in derogation of the rights of the person hav­
ing actual or constructive possession. Any other interpreta­
tion of the word would improperly restrict clear legisla­
tive intent. * * * ”

In light of the foregoing decision and the authorities 
cited therein, we hold that where a person without per­
mission or invitation enters upon the premises of another, 
and after entry thereon his presence is discovered and he 
is unconditionally ordered to leave the premises by one



5a

in the legal possession thereof, if he refused to leave and 
remains on the premises, he is a trespasser from the be­
ginning.

Likewise, “it is the law of this jurisdiction that although 
an entry on lands may be effected peaceably and even with 
permission of the owner, yet if, after going upon the 
premises of another, the defendant uses violent and abusive 
language and commits such acts as are reasonably cal­
culated to intimidate or lead to a breach of the peace, he 
would be liable for trespass civiliter as well as crimiliter 
(S. v. Stinnett, 203 NC 829, 167 SE 63), for ‘It may be, 
he was not at first a trespasser, but he became such as 
soon as he put himself in forceable opposition to the prose­
cutor.’ ” Freeman v. Acceptance Corp., 205 NC 257, 171 SE 
63.

The defendant further contends that her arrest and 
prosecution were violative of her rights under GS 72-1, 
which reads as follows: “Every innkeeper shall at all times 
provide suitable feed, rooms, beds and bedding for strangers 
and travelers whom he may accept as guests in his inn or 
hotel.” (Emphasis ours)

There is evidence in the record to the effect that the 
prosecuting witness owned the Enfield Motel; however, 
there is no evidence in the record tending to show that the 
prosecuting witness operated or managed the motel. Fur­
thermore, there is no evidence tending to show that the 
defendant ever applied for lodging at the motel. There­
fore, we hold that GS 72-1 has no application to the facts 
in this case.

We further hold that the provisions of GS 14-134 do not 
conflict with Article I, Section 17 of the Constitution of 
North Carolina or with the Privileges or Immunities, Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment to the Constitution o.'f the United States. 
United States v. Harris, 106 US 629, 27 L.Ed. 290.



6a

The evidence adduced by the State in the trial below was 
sufficient to carry the case to the jury and to support the 
verdict rendered.

The motion for judgment as of nonsuit was properly 
overruled.

We have examined the remaining assignments of error 
and they present no prejudicial error.

In the trial below, we find

No Erbor.



7a

I n the

SUPREME COURT OF NORTH CAROLINA 
Spring Term, 1964 
No. 148—Halifax

State,

v.

R obert Blow.

Appeal by defendant from Parker, J., October Criminal 
Session 1963 of Halifax.

The defendant was tried upon a bill of indictment charg­
ing him with a violation of the provisions of GS 14-134, in 
that he unlawfully trespassed upon the premises of the 
Plantation Restaurant at Enfield, North Carolina. The 
restaurant is owned and operated by William R. Davis, 
the prosecuting witness, who also owns the Enfield Motel 
located about 50 feet north of the restaurant on the same 
side of Highway 301. The restaurant serves white people 
only and there is a sign to that effect at the entrance 
thereof.

The jury returned a verdict of guilty as charged in 
the bill of indictment. From the judgment imposed, the 
defendant appeals, assigning error.

Attorney General Brtjton; Deputy Attorney General 
Ralph Moody for the State

Theaoseus T. Clayton ; W. 0 . W arner ; Samuel S. Mitch­
ell; F loyd B. McK issick for the defendant



8a

P er Curiam.

The State’s evidence against this defendant was substan­
tially the same as the evidence in the case of S. v. Davis, 
ante.

The defendant’s assignments of error purport to raise 
the same questions raised in the above case. The trial, 
verdict and judgment entered in this case will be upheld on 
authority of the opinion in S. v. Davis, supra.

No E rror.



9a

Judgment

SUPREME COURT OF NORTH CAROLINA 
Spring Term, 1964 

No. 147—Halifax County

State,

vs.

E llen Marie Davis.

This cause came on to be argued upon the transcript of 
the record from the Superior Court Halifax County: Upon 
consideration whereof, this Court is of opinion that there 
is no error in the record and proceedings of said Superior 
Court.

It is therefore considered and adjudged by the Court here 
that the opinion of the Court, as delivered by the Honor­
able Emery B. Denny, Chief Justice, be certified to the 
said Superior Court, to the intent that the proceedings be 
had therein in said cause according to law as declared 
in said opinion. And it is considered and adjudged further, 
that the defendant and surety to the appeal bond, Bankers 
Fire and Casualty Insurance Company, do pay the costs 
of the appeal in this Court incurred, to wit, the sum of 
Thirty and 45/100 dollars ($30.45), and execution issue 
therefor. Certified to Superior Court this 30th day of 
March 1964.

Adrian J. Newton 
By /s /  Sarah B. B anner 

Clerk of the Supreme Court 
Sarah B. Hanner, Deputy Clerk

A True Copy

/ s /  Adrian J. Newton 
Clerk Supreme Court



Judgment

SUPREME COURT OF NORTH CAROLINA 
Spring Term, 1964 

No. 148—Halifax County

S tate,

vs.
R obert Blow.

This cause came on to be argued upon the transcript of 
the record from the Superior Court Halifax County: Upon 
consideration whereof, this Court is of opinion that there 
is no error in the record and proceedings of said Superior 
Court.

It is adjudged by the Court here that the opinion of the 
Court, be certified to the said Superior Court, to the intent 
that the proceedings be had therein in said cause according 
to law as declared in said opinion. And it is considered 
and adjudged further, that the defendant and surety to the 
appeal bond, Bankers Fire and Casualty Insurance Com­
pany, do pay the costs of the appeal in this Court incurred, 
to wit, the sum of Thirty-One and 60/100 dollars ($31.60), 
and execution issue therefor. Certified to Superior Court 
this 30th day of March 1964.

Adrian J. Newton 
By /s /  Sarah B. Hanner 
Clerk of the Supreme Court 

Sarah B. H anner, Deputy Clerk
A T rite Copy

/ s /  Adrian J . Newton 
Clerk of the Supreme Court



11a

SUPREME COURT OF NORTH CAROLINA

State of North Carolina

v.
E llen Marie Dayis

Appeal docketed 
Case argued 
Opinion filed

17 January 1964 
25 February 1964
18 March 1964

Final judgment entered 18 March 1964

I, Adrian J. Newton, Clerk of the Supreme Court of 
North Carolina, do hereby certify the foregoing to he a 
full, true and perfect copy of the record and proceedings 
in the above entitled case as the same now appear for the 
originals on file in my office.

I further certify that the rules of this Court prohibit 
filing of petitions to rehear in criminal cases.

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this the 24th day of April 1964.

/s /  Adrian J. Newton 
Clerk of the Supreme Court

of North Carolina



SUPREME COURT OF NORTH CAROLINA

State

v.
R obert Blow

Appeal docketed 
Case argued 
Opinion filed

11 January 1964 
25 February 1964 
18 March 1964

Final judgment entered 18 March 1964

I, Adrian J. Newton, Clerk of the Supreme Court of 
North Carolina, do hereby certify the foregoing to be a 
full, true and perfect copy of the record and proceedings 
in the above entitled case as the same now appear from the 
originals on file in my office.

I further certify that the rules of this Court prohibit 
filing of petitions to rehear in criminal cases.

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this the 24th day of April 1964.

/ s /  Adrian J. Newton 
Clerk of the Supreme Court

of North Carolina



13a

APPENDIX B

Statutory and Regulatory Provisions

Civil Rights Act of 1964, %%201-203, 78 Stat. 243, 244:

Sec. 201. (a) All persons shall be entitled to the full and 
equal enjoyment of the goods, services, facilities, privileges, 
advantages, and accommodations of any place of public 
accommodation, as defined in this section, without discrim­
ination or segregation on the ground of race, color, religion 
or national origin.

(b) Each of the following establishments which serves 
the public is a place of public accommodation within the 
meaning of this title if its operations affect commerce, or if 
discrimination or segregation by it is supported by State 
action:

(1) any inn, hotel, motel or other establishment which 
provides lodging to transient guests, other than an es­
tablishment located within a building which contains not 
more than five rooms for rent or hire and which is actually 
occupied by the proprietor of such establishment as his 
residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in sell­
ing food for consumption on the premises, including, but 
not limited to, any such facility located on the premises of 
any retail establishment; or any gasoline station,

(3) any motion picture house, theater, concert hall, sports 
arena, stadium or other place of exhibition or entertain­
ment; and

(4) any establishment (A) (i) which is physically located 
within the premises of any establishment otherwise cov-



14a

ered by this subsection, or (ii) within the premises of 
which is physically located any such covered establishment, 
and (B) which holds itself out as serving patrons of such 
covered establishment.

(c) The operations of an establishment affect commerce 
within the meaning of this title if (1) it is one of the 
establishments described in paragraph (1) of subsection 
(b); (2) in the case of an establishment described in para­
graph (2) of subsection (b ); it serves or offers to serve 
interstate travellers or a substantial portion of the food 
which it serves, or gasoline or other products which it sells, 
has moved in commerce; (3) in the case of an establishment 
described in paragraph (3) of subsection (b), it customarily 
presents films, performances, athletic teams, exhibitions, 
or other sources of entertainment which move in commerce; 
and (4) in the case of an establishment described in para­
graph (4) of subsection (b), it is physically located within 
the premises of, or there is physically located within its 
premises, an establishment the operations of which affect 
commerce within the meaning of this subsection. For pur­
poses of this section, “commerce” means travel, trade, 
traffic, commerce, transportation, or communication among 
the several States, or between the District of Columbia 
and any State, or between any foreign country or any 
territory or possession and any State or the District of 
Columbia, or between points in the same State but through 
any other State or the District of Columbia or a foreign 
country.

(d) Discrimination or segregation by an establishment 
is supported by State action within the meaning of this 
title if such discrimination or segregation (1) is carried 
on under color of any law, statute, ordinance, or regula­
tion; or (2) is carried on under color of any custom or 
usage required or enforced by officials of the State or



15a

political subdivision thereof; or (3) is required by action 
of the State or political subdivision thereof.

(e) The provisions of this title shall not apply to a 
private club or other establishment not in fact open to 
the public, except to the extent that the facilities of such 
establishment are made available to the customers or pa­
trons of an establishment within the scope of subsection (b). 
Sec. 202. All persons shall be entitled to be free, at any 
establishment or place, from discrimination or segrega­
tion of any kind on the ground of race, color, religion or 
national origin, if such discrimination or segregation is 
or purports to be required by any law, statute, ordinance, 
regulation, rule, or order of a State or any agency or 
political subdivision thereof.

Sec. 203. No person shall (a) withhold, deny, or attempt 
to withhold or deny, or deprive or attempt to deprive, any 
person of any right or privilege secured by section 201, or 
202, or (b) intimidate, threaten, or coerce, or attempt to 
intimidate, threaten or coerce any person with the purpose 
of interfering with any right or privilege secured by sec­
tion 201 or 202, or (c) punish or attempt to punish any 
person for exercising or attempting to exercise any right 
or privilege secured by section 201 or 202.

1 U.S.C. $109, 61 Stat. 635: Repeal of statutes as affecting 
existing liabilities.—The repeal of any statute shall not 
have the effect to release or extinguish any penalty, for­
feiture, or liability incurred under such statute, unless the 
repealing Act shall so expressly provide, and such statute 
shall be treated as still remaining in force for the purpose 
of sustaining any proper action or prosecution for the en­
forcement of such penalty, forfeiture, or liability. The ex­
piration of a temporary statute shall not have the effect



16a

to release or extinguish any penalty, forfeiture, or liability 
incurred under such statute, unless the temporary statute 
shall so expressly provide, and such statute shall be treated 
as still remaining in force for the purpose of sustaining 
any proper action or prosecution for the enforcement of 
such penalty, forfeiture, or liability.

#  #  #  #  *

North Carolina General Statutes %12-2 (1953): Repeal of 
statute not to affect actions.—The repeal of a statute shall 
not affect any action brought before the repeal, for any 
forfeitures incurred, or for the recovery of any rights 
accruing under such statute. (1830, c. 4; E.C. c. 108, s. 1; 
1879, c. 163; 1881, e. 48; Code, s. 3764; Eev. s. 2830. C.S., 
s. 3948.)

N.C. Gen. Stat. %12-4 (1953): Construction of amended 
statute.—Where a part of a statute is amended it is not 
to be considered as having been repealed and re-enacted 
in the amended form; but the portions which are not altered 
are to be considered as having been the law since their 
enactment, and the new provisions as having been enacted 
at the time of the amendment. (1868-9, c. 270, s. 22; 1870-1, 
c. I l l ;  Code, s. 3766; Eev., s. 2832; C.S., s. 3950.)

N.C. Gen. Stat. %14-134. (1953): Trespass on land after 
being forbidden.—If any person after being forbidden to do 
so, shall go or enter upon the lands of another, without a 
license therefor, he shall be guilty of a misdemeanor, and 
on conviction, shall be fined not exceeding fifty dollars, or 
imprisoned not more than thirty days.

N.C. Gen. Stat. §72-1 (1953): Must furnish accommoda­
tions.—Every innkeeper shall at all times provide suitable 
food, rooms, beds and bedding for strangers and travelers



17a

whom he may accept as guests in his inn or hotel. (1903, 
c. 563; Rev., s. 1909; C.S., s. 2249.)

N.G. Gen. Stat. §72-46 (1953): State Board of Health to 
regulate sanitary conditions of hotels, cafes, etc.—For the 
better protection of the public health, the State Board 
of Health is hereby authorized, empowered and directed to 
prepare and enforce rules and regulations governing the 
sanitation of any hotel, cafe, restaurant, tourist home, 
motel, summer camp, food or drink stand, sandwich manu­
facturing establishment, and all other establishments where 
food or drink is prepared, handled, and/or served for pay, 
or where lodging accommodations are provided. The State 
Board of Health is also authorized, empowered and directed 
to

(1) Require that a permit be obtained from said Board 
before such places begin operation, said permit to 
be issued only when the establishment complies with 
the rules and regulations authorized hereunder, and

(2) To prepare a system of grading all such places as 
Grade A, Grade B, and Grade C.

No establishment shall operate which does not receive 
the permit required by this section and the minimum grade 
of C in accordance with the rules and regulations of the 
State Board of Health. The rules and regulations shall 
cover such matters as the cleanliness of floors, walls, ceil­
ings, storage spaces, utensils, and other facilities; ade­
quacy of lighting, ventilation, water, lavatory facilities, 
food protection facilities, bactericidal treatment of eating 
and drinking utensils, and waste disposal; methods of food 
preparation, handling, storage, and serving; health of em­
ployees; and such other items and facilities as are neces­
sary in the interest of the public health.



18a

N.C. Gen. Skat. %72-47 (1953): Inspections; report and 
grade card.—The officers, sanitarians or agents of the 
State Board of Health are hereby empowered and au­
thorized to enter any hotel, cafe, restaurant, tourist home, 
motel, summer camp, food or drink stand, sandwich manu­
facturing establishment, and all other establishments where 
food or drink is prepared, handled and/or served for pay, 
or where lodging accommodations are provided, for the 
purpose of making inspections, and it is hereby made the 
duty of every person responsible for the management or 
control of such hotel, cafe, restaurant, tourist home, motel, 
summer camp, food or drink stand, sandwich manufacturing 
establishment or other establishment to afford free access 
to every part of such establishment, and to render all aid 
and assistance necessary to enable the sanitarians or agents 
of the State Board of Health to make a full, thorough and 
complete examination thereof, but the privacy of no person 
shall be violated without his or her consent. It shall be the 
duty of the sanitarian or agent of the State Board of Health 
to leave with the management, or person in charge at the 
time of the inspection, a copy of his inspection and a grade 
card showing the grade of such place, and it shall be the 
duty of the management, or person in charge to post said 
card in a conspicuous place designated by the sanitarian 
where it may be readily observed by the public. Such grade 
card shall not be removed by anyone, except an authorized 
sanitarian or agent of the State Board of Health, or upon 
his instruction.

N.C. Gen. Stat. %72-48 (1953): Violation of article a mis­
demeanor.—Any owner, manager, agent, or person in 
charge of a hotel, cafe, restaurant, tourist home, motel, 
summer camp, food or drink stand, sandwich manufacturing 
establishment, or any other establishment where food or 
drink is prepared, handled and/or served for pay, or where



19a

lodging accommodations are provided, or any other person 
who shall willfully obstruct, hinder or interfere with a 
sanitarian, agent, or officer of the State Board of Health 
in the proper discharge of his duty, or who shall be found 
guilty of violating any of the other provisions of this article, 
any of the rules and regulations that may be provided 
under this article, shall be guilty of a misdemeanor, and 
upon conviction shall be fined not less than ten dollars 
($10.00) nor more than fifty dollars ($50.00), or imprisoned 
for not more than thirty days, and each day that he shall 
fail to comply with this article, or operate a place with a 
rating of less than grade C shall be a separate offense.

N.C. Gen, Stat. §72-48.1 (19.53): Injunctive relief against 
continued violation, etc.—If any person shall violate or 
threaten to violate the provisions of this article or any 
rules and regulations adopted pursuant thereto and such 
violation, if continued, or such threatened violation, if com­
mitted, is or may be dangerous to the public health, or if 
any person shall hinder or interfere with the proper per­
formance of duty of a sanitarian, agent or officer of the 
State Board of Health or of any local board of health and 
such hindrance or interference is or may be dangerous to 
the public health, the State Health Director or local health 
director may institute an action in the superior court of 
the county in which the violation, threatened violation, hin­
drance or interference occurred for injunctive relief against 
such continued violation, threatened violation, hindrance or 
interference, irrespective of all other remedies at law, and 
upon the institution of such an action, the procedure shall 
be in accordance with the provisions of article 37 of chapter 
I of the General Statutes.



20a

Law Rules and Regulations Governing the Sanitation of 
Restaurants and Other Foodhandling Establishments, 
North Carolina State Board of Health Sanitary Engineer­
ing Division, pp. 26-27.



21a

N ORTH  CAROLINA ST A T E  BOARD OF H EA L TH  

IN S PE C T IO N  FORM 
FOR

R EST A U R A N T S AND FO O D H A N D LIN G  E STA B LISH M EN T S 

________ ______________________PE R M IT ____________ SCORE________
C o u n ty  o r  C ity  H ea lth  D ep a rtm e n t

N am e o f R e s ta u ra n t o r E s ta b lish m e n t M an ag er A ddress

R em arks:

1. FL O O R S: T ightly  constructed & in good re p a ir  10#, clean 
& no ragged  linoleum, etc., nor obstacles to cleaning 20#; 
a rea  su ffic ien t fo r all operations 10* —  — —  — —  — 40.

2. W A LLS AND C E IL IN G S: Smooth m ateria l of tig h t con­
struction  & in good rep a ir  10#, pain ted  10*, clean & free  
from  excessive decorations 20# —• —  —  — -------- —  —  40.

3. DOORS AND W IN D O W S: Outside openings w ith  effective 
screens and self-closing doors o r effective fly -repellent fans

4. L IG H T IN G : Illum ination  adequate 10*, suffic ien t outlets 
properly  located 10* —  —  —  —  —  —  —  —- —  —  —  20.

5. V E N T IL A T IO N : V entilation adequate 10*, effective ex­
h au st system  if  needed, clean & in good rep a ir 2 0 # --------30.

6. T O ILE T  F A C IL IT IE S : Approved facilities and approved 
disposal 90* (facilities adequate fo r each sex and race 10*, 
comply w ith Building Code 5*, size 5*, p a trons’ toilets not 
entered th rough  kitchen 10*, doors self-closing 5*, ventila- 
lation, illum ination 10*, signs 5*, floors, w alls, and ceilings 
smooth, painted, clean, and in good rep a ir 20#, fix tu res clean 
& in good rep a ir 20#). (A pproved privies w here physically 
impossible to install w ater-carried  sew erage facilities 40#)— 90_

. 7. W A TER  S U P P L Y : M unicipal supply 40*, p rivate  supply 
(construction & operation  approved according to Code, 
adequate fo r a ll requirem ents) 40* —  —  —- —  -------------  40_

8. D RIN K IN G  W A TER  F A C IL IT IE S : Cooler, fountain  or
dispenser of san ita ry  design 2 0 * --------—  --------- — ---------- 20_

9. STORAGE AND H A N D LIN G  OF IC E : Ice machines, 
sto rage  boxes, g rinders, pans & containers clean 10*, good 
rep a ir  5*, ice dispensed w ith scoops, block ice washed 10* — 25_

10. LAVATORY F A C IL IT IE S : A dequate, convenient to k it­
chen & toilets & clean 10#, w arm  w ater w ith combination 
supply fau ce t 5*, good rep a ir 5*, soap 5*, individual towels 
10*, room or a rea  clean & free  from  storage 10*, ventilation
& illum ination 5 * -------- — -------------- -------------------------------- 50_

11. CON STRU CTION  OF U T E N SIL S  AND E Q U IP M E N T : 
E asily  cleanable construction w ith no breaks, chipped enamel 
o r corrosion 20#, no chipped or cracked dishes, ru s ty  or bent 
silverw are 10#, tables, shelves & counters sm ooth; no cracks,
oil cloth or paper 10# —- —  •— —  —  —  — —  — —  40_

12. STORAGE SPA C E S: Clean 10*, contents neatly  a rranged  & 
stored above floors 10#, no unnecessary articles 10* —  —  30_

13. (a) C LEA N IN G  OF E Q U IPM E N T  & U T E N S IL S : Clean 
cases, fountains, bars, counters, shelves, tables, sinks, m eat 
blocks, re frig e ra to rs , stoves, hoods, milk shakers, grinders,

( 26 )



22a

etc., 40#; clean cloths used by employees 10*; ea ting  & drink­
ing  u tensils thoroughly  cleaned a f te r  each use, and cooking 
utensils cleaned rou tinely  by approved m ethods 60#; ade­
quate  th ree-com partm ent sink of smooth construction w ith  
adequate size d rainboards attached, splash-back protection, 
ho t & cold w ate r piped to  each v a t; separa te  facilities fo r 
g lass w ashing, if  needed; dishw ashing m achine, if  used, 
clean & provided w ith  pre-w ash facilities, and equipped w ith 
therm om eters on w ash & rinse  lines; adequate ho t w ater 
heating  facilities 40# —  —  —  —  —  —  —  —  —  — 
(b) B A C TER IC ID A L T R E A TM EN T  O F E A T IN G  AND 
D R IN K IN G  U T E N S IL S : Approved bactericidal trea tm en t 
a f te r  c leaning; im mersed 1 m inute in w a te r a t  170°F,, or 
o ther approved process, therm om eter provided; if  m achines 
a re  used, equipped & operated according to  N S F  standards 
20*, adequate booster heate rs 20* —  —  —  —  —  —

14. STORAGE & H A N D LIN G  O F U T E N S IL S  AND E Q U IP ­
M E N T : No handling of contact surfaces, stored in clean 
place protected from  flies, splash, dust, etc., inverted  or 
covered when practicable 20#; single-service cups, plates, 
straw s, tray s , spoons, etc., and ice cream  d ippers properly 
stored and handled 10* —  —  —  —  -—• —  —• — —  —

15. D ISPO SA L OF W A ST E S: Liquid w astes disposed o f in an
approved m anner; garbage in standard  cans w ith  tig h t lids, 
removed frequen tly ; facilities fo r cleaning, cans k ep t clean; 
o ther tra sh  & rubbish in suitable receptacles 5 0 # ---------- —

16. PR O TEC TIO N  OF FO O D : (a ) Perishable food stored be­
low 50°F., o r held above 143°F., as required 30#; (b) All 
food clean, wholesome, free  from  adu lteration  & spoilage; 
highly perishable items (see R egulations) from  approved 
sources 30#; (c) Shellfish from  approved sources, properly 
stored & handled (record Perm it Nos.) 15*; (d) Food once 
served to guest no t re-served 10*; (e) Food kep t under 
cover, no t stored directly  in contact w ith  ice, shelves, etc., 
stored above floor, all food handled in a san ita ry  m anner, no 
unnecessary handling of cooked food w ith hands in serving, 
no food served to  public in the kitchen, no anim als, fowls, 
rodents, roaches, etc., flies under control, no open displays, 
floor cleaning only a f te r  closing or between m eals by dust­
less methods 70 —  —  —  —  — —- — —  —- —  —

150.

40.

30.

50.

155.
17. M ILK AND M ILK PR O D U C TS: G rade “A ” Pasteurized

Milk Products 30, (milk served in orig inal containers, or 
from  approved bulk dispenser properly located & labeled 
(See Regulations. Check dispenser can seals) 20*, cream 
handled properly 10*) —  —  —  —  —  —  —• •— —  — 30---------

18. R EQ U IR EM EN T S FOR E M PL O Y E E S: Clean coats and
caps, or special dress, hands clean & good foodhandling 
practices used 30#; H ealth  C ertificates on file, renewed an­
nually  10* -— —  — —  — —  — —■ — —  —  —  — 40---------

19. P R E M IS E S : M ISC E L LA N EO U S: Prem ises kep t nea t and
clean 30#; soiled linens, coats, aprons, etc., kep t in con­
ta in e rs  5*; re s ta u ra n t no t used fo r domestic purposes 5* — 40----------

TOTAL —  -------------- -- ------- 1000

D A TE______________SIG N E D ___________________________________ AGENT
N. C. S T A T E  B O A RD  O F  H E A L T H

F o rm  No. 451 

(R ev. 7 /58 )

(27)