Wooten v. Moore Appellees' Brief

    I n' the

Irnfrft States (Emirt ni Appeals
F oe the F otjeth Circuit

No. 11,897

E. W. W ooteh, W. G. H ickman, E. M. W hitehead, A nnie 
B. Davis, H auana S uggs, R obekta Suggs, A lberta C. 

E dwards, Clara B. Saunders, Dorothy W illiams 
and L. C. Nixon,

Appellees,
-v -

J ohn Moore, trading and doing business as 
Moore’s B arbeque R estaurant,

Appellant.

APPELLEES’ BRIEF

J. L eV onne Chambers
405% East Trade Street 
Charlotte, North Carolina

Conrad 0 . P earson
203% East Chapel Hill Street 
Durham, North Carolina

Jack Greenberg
M ichael Meltsner

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees
Of Counsel:

James E. F erguson, II



I N D E X
PAGE

Statement of the Case ......................................................  1

Questions Involved....... ................ ........ ................ ........... - 4

Statement of Facts ............................................................  5

A rgument

I. The United States Congress Has Abundant Pow­
er to Prohibit Racial Discrimination in a Res­
taurant Having the Capacity to Serve 100 Cus­
tomers, Located on a United States Highway, 
Selling Over $160,000 Worth of Food Annually, 
Advertising Through Newspapers, Radio and 
Television and Serving at Least Some Interstate 
Travelers ....................................................................  8

II. The Court Below Was Clearly Correct in Finding 
That Defendant’s Restaurant Is Covered by the 
Civil Rights Act of 1964 on the Basis of Defen­
dant’s Own Admission That He Did Serve Some 
Interstate Travelers, and the Uncontradicted Tes­
timony of Six White Witnesses That They Had 
Eaten at the Restaurant and That No Inquiry 
Had Been Made of Them as to Their Residency 12

III. The Court Below Erred in Finding That Defen­
dant Did Not “ Offer to Serve” Interstate Trav­
elers in That Its Advertising Contained No Such 
Disclaimer and Its Location Would Attract In­
terstate Travelers; the Court Also Erred in Find­
ing That “ a Substantial Portion of Its Food . . . 
or Other Products” Had Not Moved in Commerce 16

Conclusion 21



II

Table of Cases

PAGE

Bolton v. State, 220 Ga. 632, 140 S,E.2d 866 (1964) .....  9

Consolidated Edison Co, v. Labor Board, 305 U.S, 197 
(1938) ...... .......................................................................... 10

Gibbons v. Ogden, 9 Wheat 1, 6 L.ed. 23 (1824) ...........  10
Georgia v. Rachel, 384 U.S. 780 (1966) ...........................  8
Gregory v. Meyer, 376 F.2d 509 (5th Cir. 1967) .....8,19,20

Hamm v. Rock Hill, 379 U.S. 306 (1964) ....................... 8

Katzenbach v. McClnng, 379 U.S. 294 (1964) ...........8, 9,10,
11, 12, 20

Newman v. Piggie Park Enterprises, 377 F.2d 433 
(4th Cir. 1967) .......................................................... 8,11,19

Polish Alliance v. Labor Board, 322 U.S. 643 (1944) .... 10

The Heart of Atlanta Motel, Inc. v. United States, 379 
U.S. 241 (1964) .......................................................... 8, 9,11

United States v. Wrightwood Dairy Co., 315 U.S. 110 
(1942) ................................................................................  10

Wickard v. Filbnrn, 317 U.S. I l l  (1942) .....................10,11
Willis v. Pickrick Restaurant, 231 F. Supp. 396 (N.D.

Ga. 1964) ..........................................................................  9

Statutes I nvolved

42 U.S.C. §2000 (a) 

42 U.S.C. §2000(b) 

42 U.S.C. §2000 (c)

... 13 

... 13 

.13,14



Ill

Other A uthorities
PAGE

110 Cong. Rec. 1901 ..........................................................  14

110 Cong. Rec. 1903 ..........................................................  15

110 Cong. Rec. 7177 ..........................................................  17

Hearings before Comm, on the Judiciary, 88th Cong.,
1st Sess. Part II ..................................................... ....... 19

Hearings before Senate Comm, on Commerce, 88th
Cong., 2d Sess. 20



I n the

l u t ( d m t r t  of Appals
F or the F ourth Circuit

No. 11,897

E. W . W ooten, W . G. H ickman, R. M. W hitehead, A nnie 
B. Davis, H auana Suggs, R oberta Suggs, A lberta C. 

E dwards, Clara B. Saunders, D orothy W illiams 
and L. C. Nixon,

Appellees,
— v.—

J ohn Moore, trading and doing business as 
Moore’s B arbeque R estaurant,

Appellant.

APPELLEES’ BRIEF

Statement of the Case

This is an appeal by defendant John Moore from an 
order1 entered by the United States District Court for 
the Eastern District of North Carolina enjoining him from 
discriminating against Negroes in the operation of Moore’s 
Barbecue Restaurant.

The action was initially filed on November 10, 19642 
(Appellant’s App. I ) 3 by several Negro plaintiffs seeking

1 The opinion and order filed July 18, 1967, are printed in defendant- 
appellant’s appendix at p. 23.

2 This date was mistakenly printed as November 10, 1966, in appellant’s 
brief, p. 2.

3 Appellant’s appendix is hereinafter cited as “App. ------ ” . Appellees’
appendix is hereinafter cited as “------ a” .



2

injunctive relief against racially discriminatory practices 
by the defendant as violative of plaintiffs’ rights under 
the Commerce Clause and Fourteenth Amendment to the 
Constitution of the United States, Title II of the Civil 
Eights Act of 1964, 42 U.S.C. §§2000a et seq. and 42 U.S.C. 
§1981. Jurisdiction was invoked pursuant to 28 U.S.C. 
§1343(3) and 42 U.S.C. §2000a-6(a). Plaintiffs sought relief 
on their own behalf and on behalf of others similarly 
situated pursuant to Eule 23 of the Federal Eules of 
Civil Procedure.

Defendant filed answer to the complaint (App. 6) and 
to plaintiffs’ interrogatories (5a and see la ) and requests 
for admission (13a and see 4a) on February 4, 1965. 
Plaintiffs filed additional interrogatories (14a) on Feb­
ruary 24, 1965, to which defendant filed answers (18a) 
and objections (19a) on March 8, 1965. Defendant’s ob 
jections were heard by the Court on April 12, 1965, and 
an order (21a) was entered on May 4, 1965, allowing 
plaintiffs to examine certain records of purchases by 
defendant.

Plaintiffs deposed defendant’s suppliers and five per­
sons (22a, 36a, 54a, 69a, 74a) who had eaten at defendant’s 
restaurant and the defendant on July 22, and 23, 1965. On 
November 22, 1965, a pretrial conference was held.

On July 22, 1966, the United States Government filed 
application to intervene. The application for intervention 
was heard by the Court on October 24, 1966, following 
which the Court on January 10, 1967, disallowed the inter­
vention (87a). On October 31, 1966, plaintiffs moved for 
a preliminary injunction (80a) which was denied by the 
Court on December 31, 1966 (85a).



3

The cause came on for hearing on the merits on April 17, 
1967 (103a) at which time plaintiffs offered and the Court 
admitted (106a) the depositions of defendant’s suppliers, 
depositions of five white persons who had eaten at defen­
dant’s restaurant and the deposition of defendant. Plain­
tiffs also offered, without objection, exhibits, answers to 
interrogatories and admissions of defendant. Another 
white person (161a) who had eaten at Moore’s Barbecue 
Restaurant testified at the hearing. Defendant offered 
several exhibits and testified himself (108a). Plaintiffs 
renewed their motion for a preliminary injunction in June, 
1967 (100a).

On July 18, 1967, the Court entered its opinion and 
order (App. 23) enjoining defendant from discriminating 
against plaintiffs and other Negroes. The Court found 
that defendant’s restaurant came within the requirements 
of Title II of the Civil Rights Act of 1964, 42 U.S.C. 
2Q00a(c)(2), in that it served interstate travelers and 
that it was principally engaged in selling food for con­
sumption on the premises. The Court also found that 
defendant did not “ offer to serve” interstate travelers, 
and that a “ substantial portion of the food” served by 
defendant had not moved in interstate commerce.

Defendant noted an appeal on August 17, 1967. Upon 
defendant’s motion an order was entered extending the 
time for a period of ninety days from August 17, 1967 
for filing the record and docketing the appeal.

On December 22, 1967 plaintiffs filed a motion to dis­
miss the appeal on the ground that the case had become 
moot. After a hearing, this Court entered an order on 
January 22, 1968 denying plaintiff’s motion. The Court 
entered an order fixing the time for filing appellees’ brief 
and appendix to twenty days from January 22, 1968.



4

Questions Involved

I.

Whether the Congress of the United States has the 
Constitutional power to forbid racial discrimination in a 
restaurant having the capacity to serve 100 customers, 
located on a United States Highway, selling over $160,000 
worth of food annually, advertising to the general public, 
and serving, at least some, interstate travelers.

II.

A. Whether the Court below erred in finding that de­
fendant’s restaurant was covered by the Civil Eights Act 
of 1964 on the basis of defendant’s own admission that he 
did serve some interstate travelers, and the uncontradicted 
testimony of six white witnesses that they had eaten at 
the restaurant and that no inquiry had been made of them 
as to their residency.

B. Whether the Court below erred in finding that defen­
dant did not offer to serve interstate travelers on the 
basis of evidence showing that he had engaged in a sub­
stantial amount of advertising, that he was located on a 
major United States Highway, that he had posted two 
signs which read that he did “not cater to interstate 
travelers” and that he did not query all of his customers 
as to their origin.

C. Whether the Court below erred in finding that a 
substantial amount of defendant’s food had not moved in 
interstate commerce where the evidence showed that he 
had made purchases of nearly $7,000 from out of state 
suppliers over a three year period, and that he had pur­



5

chased other goods from North Carolina suppliers which 
had, in whole or in part, moved in interstate commerce.

Statement of Facts

Defendant John Moore owns and operates Moore’s Bar­
becue Restaurant at 1220 Broad Street4 * in the City of 
New Bern, North Carolina.6 Broad Street is four lanes 
and is also U. S. Highway 70 and IJ. S. Highway 17 at the 
place where the restaurant is located. There are parking 
spaces between the building and the street6 and to the 
east of the building.

The restaurant has 25 booths in the dining room with 
accommodations for 100 people (120a). Defendant’s total 
sales for 1963 was $156,869.59 (11a), for 1964 was 
$164,323.87 (11a), and for 1966 was $177,540.95 (134a-135a). 
His total purchases for these years were $87,839.39, 
$89,701.56 and $99,000 (11a, 134a-135a).

Defendant made purchases directly from out of state 
suppliers of $4,038.58 during 1963 and 1964 and $2,732.01 
in 1966 (133a-135a). Defendant also made purchases of 
goods which had in whole or in part, moved in interstate 
commerce from North Carolina suppliers.

4 The operation which is the subject of this appeal has been closed 
down. (See Appellees’ Motion to Dismiss this appeal on the ground of 
mootness.) Defendant has since opened another restaurant, the subse­
quent operation of which, his counsel has said, is contingent upon the 
result of his appeal.

The defendant does not dispute the facts as found by the Court below. 
(Appellants Brief, pp. 3-4).

6 The restaurant is somewhat over a mile from the United States Post 
Office and Court Building in New Bern (33a).

6 Defendant estimated that there are spaces for 20-25 cars (148a).



6

Defendant, in Ms answer, and at all other times has 
admitted that he does not serve Negroes in the dining 
room of his restaurant. He has asserted, however, that 
he does not serve or offer to serve interstate travelers. 
See 42 U.S.C. §2000a(e) (2).7 To this end he has posted two 
signs approximately one foot by one and one-half feet in 
the windows by the entrances to his restaurant with the 
following in 1%  inch letters:

“We do not cater to interstate patrons and the 
principal foods sold in this restaurant are North 
Carolina products.”  (See App. 26.)

The Court below found, on the basis of defendant’s testi­
mony that “ [defendant and members of his family keep 
watch on customers entering the restaurant, and when 
there is anything to indicate the possibility that a would-be 
patron is an interstate traveler, such as a car with out- 
of-state license plates, the person is interrogated and if

7 The Court below looked only to the direct interstate purchases in 
determining whether a “substantial portion of the food . . .  or other 
products . . .”  sold had moved in commerce. 42 U.S.C. §2000a(c) (2). 
Plaintiffs had introduced the depositions of defendant’s North Carolina 
suppliers showing that many of these products purchased by the defen­
dant had moved in commerce. These depositions are part of the record 
on appeal, but are not included in appellees’ appendix. Plaintiffs main­
tain here that the Court below erred in failing to consider these products. 
(See Argument II B infra.)

The great majority of the products purchased by defendant from the 
following suppliers had moved in commerce: Continental Baking Com­
pany in Raleigh; The American Bakeries Company in Rocky Mount; 
The Henderson Cigar and Candy Company in New Bern; Colonial Stores 
in New Bern; Brothers Frozen Foods in Kinston; the C. W. Howard 
Company in Kinston; Armstrong Grocery Company in New Bern; Boyd 
Brothers in New Bern; and Hayes Crary, Sr. in New Bern.

The ingredients of the products purchased from the following had 
moved in commerce: the New Bern Coca Cola Bottling Company; Dr. 
Pepper Bottling Company in New Bern; and the Pepsi Cola Bottling 
Company in New Bern. Some other products, including containers and 
packing materials from other suppliers had moved in commerce. All the 
seafood had come from navigable waters.



7

found to be an interstate traveler, is refused service.” 
(App. 26).8

Defendant does not indicate his restrictive policy as to 
service in any of his advertising in newspapers and on 
radio and television9 (151a-152a). Nor is there any indica­
tion of this policy on the large signs in front of his restau­
rant.

Defendant admitted on direct examination (117a), again 
on cross-examination (159a-160a) and the Court found 
(App. 26-27) that he did not keep out all people from 
outside of North Carolina. Plaintiffs produced at the trial 
a witness (161a) who had come to New Bern from Wash­
ington, D. C. the day before and who had eaten at Moore’s 
without having been interrogated as to his residency. Plain­
tiffs also introduced the depositions of five white persons 
from outside of New Bern10 who had eaten at Moore’s 
restaurant none of whom had been questioned as to their 
residency.11

8 Defendant’s counsel pointed ont that the license of a car pulling into 
a parking space in front of the restaurant would probably not be visible 
to anyone inside, particularly if no license plate appeared on the front 
o f the car (45a, 65a).

9 It was shown that one such newspaper carrying his advertising was 
given to all guests at the Holiday Inn in New Bern, a modern motel with 
100 rooms (42a-43a, 26a).

10 Jack Hornbeck (22a), from Michigan, Adam Stein (36a), from 
Virginia and Charles Morgan Smith (54a) from Colorado, all law 
students who had recently arrived in North Carolina for the Summer; 
also David Townquist (69a) a writer and translater from Durham, North 
Carolina and Carol Euth Silver (74a), an attorney from California who 
had been working for several months in Durham, North Carolina. Town­
quist and Silver visited the restaurant May 5, 1965; Hornbeck, Stein and 
Smith on June 10, 1965.

11 Although the Court below stated that these witnesses “ drove up to 
the restaurant in ears bearing North Carolina license plates” (App. 28), 
the uncontradieted testimony was that Hornbeck, Stein and Smith 
arrived in a car with New Mexico license plates (25a), (39a), (55a, 65a).



8

ARGUMENT

I.

The United States Congress Has Abundant Power to 
Prohibit Racial Discrimination in a Restaurant Having 
the Capacity to Serve 100 Customers, Located on a 
United States Highway, Selling Over $160 ,000  Worth 
of Food Annually, Advertising Through Newspapers, 
Radio and Television and Serving at Least Some Inter­
state Travelers.

The defendant seeks a declaration by this Court that 
Congress did not have the constitutional power to prohibit 
racial discrimination in the operation of Moore’s Barbecue 
Restaurant.12 (Appellant’s Brief, p. 8) This argument is 
made in the face of The Heart of Atlanta Motel, Inc. v. 
United States, 379 U.S. 241, 85 S.Ct. 1, 13 L.Ed 2d 258 
(1964) and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 
377, 13 L.Ed2d 290 (1964) where all nine justices found 
ample constitutional authority for Title II of the Civil 
Rights Act. See also, Hamm v. Rock Hill, 379 U.S. 306, 
85 S.Ct. 384, 13 L.Ed2d 300 (1964); Georgia v. Rachel, 384 
U.S. 780, 86 S.Ct. 1783, 16 L.Ed2d 925 (1966); Newman v. 
Piggie Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967); 
Gregory v. Meyer, 376 F.2d 509 (5th Cir. 1967); Willis v.

Townquist and Silver testified that they arrived in a ear rented in 
Durham (69a, 75a).

Stein and Smith also all testified that on the day they visited the 
restaurant they noted a car parked in Moore’s lot with Florida license 
plates (42a, 58a).

12 Alternatively defendant argues that he is not covered by the terms 
of Title II  o f the Civil Rights Act of 1964 (Appellant’s brief, p. 19) 
or that the Act should be read restrictively to exempt him. These con­
tentions are met in the second part of this brief, infra.



9

Pickrick Restaurant, 231 F. Supp. 396 (N.D. Ga. 1964) (3 
judge Court), appeal dismissed, sub nom. Maddox v. Wil­
lis, 382 TJ.S. 18; Bolton v. State, 220 Ga. 632, 140 S.E.2d 
866 (1964).

The Supreme Court found the necessary constitutional 
support for Title II in the Commerce Clause.13

“Our study of the legislative record, made in light of 
prior cases, has brought us to the conclusion that 
Congress possessed ample power in this regard. . . . ” 
Heart of Atlanta, 379 U.S. at 250.

The Court reviewed the legislative history of the Act and 
found reasonable testimony indicating that interstate com­
merce was burdened in a variety of ways because of 
prevailing racial discrimination in places of public ac­
commodation. The Court noted, among other things, that 
the legislative history showed that in our mobile society 
commerce was adversely affected because the travel of 
Negroes was inhibited by discrimination in public accom­
modations, Heart of Atlanta, 379 U.S. at 252, McClung, 
279 U.S. at 300, that per capita spending by Negroes at 
places of public accommodation was significantly lower 
than for whites, adversely affecting national commerce, 
McClung, 379 U.S. at 299-300, that Negroes with skills 
were reluctant to accept employment and move into areas 
where there was discrimination in places of public accom­
modation, thus adversely affecting national commerce,

13 The Court though relying upon the Commerce Clause in Heart of 
Atlanta, supra, and McClung, supra, indicated that there was possibly 
additional constitutional authority in the Thirteenth and Fourteenth 
Amendments. Heart of Atlanta, 379 U.S. at 250. See also separate 
opinions of Justices Goldberg and Douglas, 379 U.S. at 378 and 391. 
Appellees in no way abandon this argument. However, it would seem 
that since the authority under the commerce clause is so clearly available 
that it would be unnecessarily burdensome to set out this alternative 
authority.



10

McClung, 379 U.S. at 300 and that commerce has been 
adversely affected by the wide unrest caused by discrimi­
nation in places of public accommodation. McClung, 379 
U.S. at 300.18a Reviewing this testimony presented to 
Congress, the Court found that discrimination in restau­
rants affected commerce:

“We believe that this testimony afforded ample basis 
for the conclusion that established restaurants in such 
areas sold less interstate goods because of the discrimi­
nation, that interstate travel was obstructed directly 
by it, that businesses in general suffered and that many 
new businesses refrained from establishing there as a 
result of it. . . . ” McClung, 379 U.S. at 300.

The Court, further, had no difficulty in finding support 
in its previous decisions for the proposition that many 
seemingly local places of public accommodation could be 
reached by national legislation where Congress had rea­
sonably found, as in this area, that there was a cumulative 
effect on commerce. In McClung the Court pointed to the 
cases extending from Gibbons v. Ogden, 9 Wheat 1, 6 L.Ed 
23 (1824) through Consolidated Edison Co. v. Labor Board, 
305 U.S. 197, 83 L.Ed. 126, 59 S.Ct. 206 (1938); United 
States v. Wrightwood Dairy Co., 315 U.S. 110, 86 L.Ed 
726, 62 S.Ct. 523 (1942); Wickard v. Filburn, 317 U.S. I l l ;  
87 L.Ed. 122, 63 S.Ct. 82 (1942) and Polish Alliance v. 
Labor Board, 322 U.S. 643, 88 L.Ed 1509, 64 S.Ct. 1196 
(1944) and said:

“ This Court has held time and again that this power 
[the commerce clause] extends to activities of retail 
establishments, including restaurants, which directly

13a See also the discussion as to the purpose, coverage and affect on 
commerce in Part II  of this brief.



11

or indirectly burden or obstruct interstate commerce.” 
McClung, 379 U.S. at 301.

In Heart of Atlanta, Mr. Justice Clark, writing for the 
Court, exhaustively treated the broad power granted to 
Congress by the Commerce Clause. See Section 7, Heart 
of Atlanta, 379 U.S. at 254-261. See also Newman v. Piggie 
Park Enterprises, Inc., supra.

The defendant here, however, would have this Court 
rule, despite the Supreme Court’s very recent analysis of 
the legislative history of Title II and the Congressional 
power under the Commerce Clause, that because John 
Moore primarily engages in a local business he is outside 
the purview of Congressional regulation. It should be 
sufficient to repeat that his restaurant is located on U. S. 
Highways 17 and 70, it has a capacity of approximately 
100 persons, it sold $177,000 worth of food in 196614 and 
it serves some interstate travelers. The fact that his oper­
ation “may be trivial by itself is not enough to remove him 
from the scope of federal regulation where, as here, his 
contribution, taken together with that of many others simi­
larly situated, is far from trivial.” Wickard v. Filburn, 317 
U.S. I l l ,  127-28; quoted in McClung, 379 U.S. at 301.

Since the Supreme Court had sustained the constitution­
ality of Title II upon a rationale which clearly encom­
passed Moore’s Barbecue Restaurant, the Court below was 
entirely correct in concluding that because the defendant 
admitted refusing service to Negroes “ the sole, determin­

14 The Supreme Court’s statement, as set out above, that Congress 
drew a reasonable conclusion that “ established restaurants in such areas 
sold less interstate goods because of racial discrimination”  is highlighted 
in this case. Defendant very clearly has attempted to refrain from 
making interstate purchases to avoid coverage. He thus burdens com­
merce not only in limiting his patrons to whites but also in making 
commercial decisions as to purchases on a racial basis.



12

ative question for the Court is whether Moore’s Barbecue 
Restaurant is an establishment covered by Title II, Sec­
tion 201 of the Civil Rights Act of 1964.” (App. 29)

The Supreme Court had used strikingly similar language 
in indicating the duty of federal courts under the Act. 
It said that

“where we find that the legislators, in the light of 
the facts and testimony before them, have a rational 
basis for finding a chosen regulatory scheme necessary 
to the protection of commerce, our investigation is at 
an end. The only remaining question . . .  is whether 
the particular restaurant either serves or offers to 
serve interstate travelers or serves food, a substan­
tial portion of which has moved in interstate com­
merce.” McClfyng, 379 U.S. at 304.

II.
The Court Below Was Clearly Correct in Finding That 

Defendant’ s Restaurant Is Covered by the Civil Rights 
Act of 1964 on the Basis of Defendant’ s Own Admission 
That He Did Serve Some Interstate Travelers, and the 
Uncontradicted Testimony of Six White Witnesses That 
They Had Eaten at the Restaurant and That No Inquiry 
Had Been Made of Them as to Their Residency.

Mr. Moore’s restaurant is located on U. S. Highway 17 
and 70, has a capacity of up to 100 patrons in the dining 
room and parking places for 100 cars. He has placed two 
signs in his windows indicating that he does not “ cater 
to interstate patrons.” It would seem unlikely that this 
would deter many interstate travelers who had come to 
his restaurant. Some might not see the sign. Some might 
be confused as to its meaning. (What does “cater” mean



13

in this context?) Some might ignore it, not earing to get 
back in their ears after having stopped.

And there was ample evidence for the Court below to 
conclude that some interstate travelers are served. Mr. 
Moore admits that his methods for enforcing his policy 
are considerably less than fool-proof.15 16 The testimony of 
plaintiffs’ six white witnesses that none were questioned 
concerning their places of origin supports Mr. Moore’s 
admission. Indeed, in the face of Mr. Moore’s admission 
at trial that some interstate travelers were served,16 it 
would have been clear error for the Court to have found 
otherwise. Therefore, defendant must be arguing here that 
occasional service to interstate travelers is not enough to 
bring a restaurant within the Act.

The scheme of Title II of the Civil Eights Act is, in its 
relevant portions as follows:

42 U.S.C. §2000a(a) forbids discrimination in places of 
public accommodations as defined by the Act;

42 U.S.C. §2000a(b) lists and describes those places 
covered, including restaurants, subject to the “com­
merce” test in Section ( c ) ;

42 U.S.C. §2000(c) sets out commerce tests for the 
places of public accommodation as described in Sec­
tion (b). The test for a restaurant is whether “ it

15 Direct examination by Mr. Tucker:
Q. Mr. Moore, can you keep out every person who is from out­

side North Carolina? A. It is impossible for me to keep everyone 
out. (117a)

Cross examination by Mr. Chambers:
Q. Now, you testified in direct examination by Mr. Tucker that it 

is impossible for you to keep all the interstate travelers out? A. 
Well, I would say so, because I do not know everybody in the world. 
(159a)

16 See note 13 supra.



14

serves or offers to serve interstate travelers or a sub­
stantial portion of the food which it serves . . .  or 
other products which it sells has moved in commerce.”

The three tests are in the alternative. Only the third 
test—where a “ substantial portion of food . . . has moved 
in commerce”— requires a showing of substantiality. De­
fendant, apparently would have this Court read such a 
requirement into the “serve” test; Congress, however, chose 
not to. When Representative Willis sought to amend 
42 U.S.C. §2000a-(c) (2) to strike “ it serves or offers to 
serve interstate travelers or” and insert in lieu thereof 
the following: “a substantial number of the patrons it 
serves are interstate travelers and . . . ” (emphasis sup­
plied), 110 Cong. Rec. 1901 (Daily Ed., Feb. 5, 1964) 
Congressman Celler opposed the amendment:

“ This amendment would change that. Instead of being 
in the disjunctive, it would be in the conjunctive, and 
the Attorney General would have to prove two things. 
First, he would have to prove that in a particular 
restaurant the service is to a substantial number of 
interstate travelers. Not merely to interstate travelers 
but to a ‘substantial’ number of interstate travelers. 
And, in addition, he would have to prove that a sub­
stantial portion of the food which is served has moved 
in interstate commerce. That is a proof that is two­
fold, and it makes it all the more difficult for the 
Attorney General to establish that proof. It cuts, as it 
were, the import of the words ‘affect commerce’, which 
are on page 43, line 24, in half. You have this situa­
tion, for example. Whereas, in the proposal before 
us, many restaurants are within the orbit of the pro­
hibition of the bill, many of such restaurants would 
not be covered under this amendment. Take, for ex­
ample, a roadside restaurant which sells home-grown



15

food which does not come from outside the State. That 
would not be covered under the amendment. Further­
more, a local restaurant which serves loeal people with 
food coming from all over the United States would 
not be covered under the amendment. Let me repeat 
that.

“ We have very significant results here. Instead of 
having all restaurants covered, under this amendment 
you would eliminate the restaurant, for example, a 
roadside restaurant, that sells home-grown food. You 
would also eliminate the local restaurant that serves 
local people with food that comes from all over the 
country. I  do not think we want such a situation to 
develop, and for that reason I believe that the whole 
purpose of covering restaurants would be defeated by 
this amendment” (110 Cong. Rec. 1902 (Daily Ed. 
February 5, 1964) at 1902) (emphasis supplied).

The amendment was rejected at p. 1903.

The Court below was clearly correct when it said:

“ [Irrespective of one’s intent to effectively remove 
himself from the Act and its prohibitions, he must in 
fact and in law not serve interstate travelers if he 
shall avoid ‘affecting commerce.’ The reasons for re­
quiring a strong showing on such an issue as this 
becomes manifest when viewed in light of the strong 
congressional policy underlying the purpose of the 
Act.” (App. 31)17

17 See also the discussion in Section III infra, setting out the Con­
gressional intent of covering all restaurants under Title II.



16

III.

The Court Below Erred in Finding That Defendant 
Did Not “ Offer to Serve”  Interstate Travelers in That 
Its Advertising Contained No Such Disclaimer and Its 
Location Would Attract Interstate Travelers; the Court 
Also Erred in Finding That “ a Substantial Portion of 
Its Food . . .  or Other Products”  Had Not Moved in 
Commerce.

In the event that this Court should rule against plain­
tiffs in their contention that the Court below was clearly 
correct in finding that defendant served interstate travelers, 
the order below should be affirmed on the ground that de­
fendant offered to serve interstate travelers, or on the 
ground that a substantial portion of defendant’s food or 
other products moved in commerce. On these two issues, 
the Court below erred.

Relevant to a consideration of both, and also to the 
issue as to the meaning of “ serve” 18 is the legislative record 
of Title II.

It is clear beyond doubt that key legislators assumed 
coverage of virtually all restaurants. In the Senate, Sena­
tor Magnuson, Chairman of the Commerce Committee, 
presenting an analysis of Title II, said:

“Most public eating places would be within the ambit 
of Title II because of their connection with interstate 
travelers or interstate commerce. And in some areas, 
public eating places would come within the ambit of 
Title II, because of the factor of State action.

“At any rate, it is clear that few, if any, proprietors 
of restaurants and the like would have any doubt 
whether they must comply with the requirements of

18 See also Section II supra.



17

Title I I ”  110 Cong. Rec. 7177 (Daily Ed., Apr. 9,1964) 
(emphasis supplied).18

Attorney General Kennedy stated the central purpose of 
the Act as follows:

Arbitrary and unjust discrimination in places of 
public accommodation insults and inconveniences the 
individuals affected, inhibits the mobility of our citi­
zens, and artificially burdens the free flow of commerce.

Consider, for instance, the plight of the Negro trav­
eler in some areas of the United States.

For a white person, traveling for business or plea­
sure ordinarily involves no serious complications. He 
either secures a room in advance, or stops for food 
and lodging when and where he will.

Not so the Negro traveler. He must either make 
elaborate arrangements in advance, if he can, to find 
out where he will be accepted, or to subject himself 
and his family to repeated humiliation as one place 
after another refuses them food and shelter.

He cannot rely on the neon signs proclaiming 
“Vacancy,” because too often such signs are meant 
only for white people. And the establishments which 
will accept him may well be of inferior quality and 
located far from his route of travel.

The effects of discrimination in public establish­
ments are not limited to the embarrassment and frus­
tration suffered by the individuals who are its most 
immediate victims. Our whole economy suffers. When 
large retail stores or places of amusement, whose 
goods have been obtained through interstate com­
merce, artificially restrict the market to which these 
goods are offered, the Nation’s business is impaired. 19

19 See also Rep. Celler’s remarks concerning the proposed substan­
tiality test, II, supra.



18

Business organizations in this country are increas­
ingly mobile and interdependent, and they tend to ex­
pand beyond the areas of their origins. As they find 
it necessary or feasible to engage in regional or na­
tional operations, they establish plants and offices in 
various parts of the country. These installations 
benefit the localities in which they are established 
and affect the commerce of the country. Artificial 
restrictions on their employees limit this type of 
mobility and its benefits to the national economy.

Further, if we add together only a minor portion 
of all the discriminatory acts throughout the country 
in any one year which deny food and lodging to 
Negroes, it is not difficult at all to see how, in the 
aggregate, interstate travel and interstate movement 
of goods in commerce may be substantially affected.

No matter—in Mr. Justice Jackson’s words— “how 
local the operation which applies the squeeze,” com­
merce in these circumstances is discouraged, stifled, 
and restrained among the States as to provide an ap­
propriate basis for congressional action under the 
commerce clause.

Mr. Chairman, discrimination in public accommoda­
tions not only contradicts our basic concepts of liberty 
and equality, but such discrimination interferes with 
interstate commerce and the development of unob­
structed national market.

We pride ourselves on being a people who are gov­
erned by laws. This pride is justified when we pro­
vide legal means for the settlement of human differ­
ences and the satisfaction of justified complaints. 
Mass demonstrations disrupt the community in which 
they occur; they also disrupt the country as a whole. 
But no one can in good faith deny that the grievances 
which these demonstrations protest against are' real.



19

(Hearings before Comm, on the Judiciary, 88th Cong. 
1st Sess. Part II, pp. 1374-75.)

This central purpose of the Act—coverage of all res­
taurants—was specifically recognized by this Court in 
Newman v. Piggie Park Enterprises, Inc., 377 F.2d 433, 
436 (4th Cir. 1967) where the Court said:

“We think the Congress plainly meant to include 
within the coverage of the Act all restaurants, cafe­
terias, lunchrooms, lunch counters, soda fountains, and 
all other facilities primarily engaged as a main part 
of their business in selling food for consumption on 
the premises. We are further of the opinion that the 
statutory language accomplished that purpose.”

See also Gregory v. Meyer, 376 F.2d 509 (5th Cir. 1967).

The rather ambiguous disclaimer of defendant’s signs 
and his erratic questioning of customers does not mean 
that he does not offer to serve interstate travelers. The 
restaurant advertises to the public at large and is located 
on an interstate highway. In Newman, supra, this Court 
was very clear in holding that any restaurant on an inter­
state highway offers to serve interstate travelers:

“If the ‘commerce’ tests are the principal criteria, and 
we think they are, clarity of coverage is promoted. A 
traveler can then intelligently assume that an eating 
place on an interstate highway is covered.” Newman, 
supra, at 435.

In the light of this language it seems unlikely that Moore 
could remove himself from the Act. At any rate, what he 
has done is certainly not enough.

It is also clear that a substantial portion of defendant’s 
food had moved in commerce. In Gregory, the 5th Circuit



20

noted that the legislative history indicates that “ substan­
tial” as used here means “ anything more than a minimal 
amount. Hearings on S. 1732 before the Senate Committee 
on Commerce, S.Bep. No. 872, 88th Cong., 2d Sess., pp. 
1717-173, 212, 220.” Gregory at 511.

The defendant admits that approximately $4,000 worth 
of goods were purchased in both 1963 and 1964 from out 
of state and approximately $2,700 was so purchased in 
1966. We maintain that this alone meets the substantiality 
test. There were additional out of state products purchased 
by the defendant from North Carolina firms;20 the Dis­
trict Court failed to consider these items in its opinion. 
This was clearly erroneous. Katsenbach v. McClung, supra, 
and Gregory v. Meyer, supra.

In light of the legislative history of the Act and the evi­
dence before the Court below, it was error for the Court 
not to find that a substantial portion of defendant’s food 
had moved in commerce.

20 See note 7 supra.



21

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the order below should be affirmed.

of Counsel:

Respectfully submitted,

J. L eV onne Chambers
405% East Trade Street 
Charlotte, North Carolina

Conrad 0. P earson

2031/2 East Chapel Hill Street 
Durham, North Carolina

J ack Greenberg
Michael Meltsner

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellees

James E. F erguson, II



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