Peterson v. City of Greenville, South Carolina Petition for Writ of Certiorari

    I n  THE

i>ttpriw OInurt of %  Ilnxttb States
October Term, 1961 

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

J ames E ichaed P etebson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph  S tbawdeb, H akold J ames 
P owlee, F eank  G. S m ith , R obebt Ceockett, J ames 
Caetee, D oeis D eloees W eight and R ose M aeie Collins,

Petitioners,
- v -

C lT Y  OE G b EEN VILLE,

Respondent.

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

J ack  Geeenbeeg 
Constance B akee M otley 
J ames M. N abeit, III 
M ichael M eltsnee

10 Columbus Circle 
New York 19, New York

M atthew  J. P eeey 
L incoln  C. J en k in s , J e .

1107% Washington Street 
Columbia 1, South Carolina

W illie T. S m ith

Greenville, South Carolina

Attorneys for Petitioners



TABLE OF CONTENTS

Citation to Opinions B elow .........................................  1

Jurisdiction ............................,....................................... 2

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

Constitutional and Statutory Provisions Involved .... 3

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

How the Federal Questions Were Raised and De­
cided Below ..............................................................  9

Reasons for Granting the Writ .................................. 14

I. Petitioners were denied due process of law 
and equal protection of the laws by conviction 
of trespass in refusing to leave white lunch 
counter where their exclusion was required by 
City Ordinance ................................................... 14

II. The decision below conflicts with decisions of 
this Court securing the right of freedom of 
expression under the Fourteenth Amendment 
to the Constitution of the United States.......  19

A. The enforcement of the State and City
segregation policy and the interference of 
the police violated petitioners’ right to free­
dom of expression .......................................  19

B. The convictions deny petitioners’ right to
freedom of expression in that they rest on 
a statute which fails to require proof that 
petitioners were requested to leave by a 
person who had established authority to 
issue such request at the time given......... 23

Conclusion ...................................................................... 26

PAGE



T able oe Cases
page

Abrams v. United States, 250 U. S. 616............. -.....  19

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) .... 18
Boman v. Birmingham Transit Company, 280 F. 2d

531 (5th Cir. 1960) ................................................... 18
Breard v. Alexandria, 341 U. S. 622 ..........................  20
Brown v. Board of Education, 347 U. S. 483 ..............  18
Buchanan v. Warley, 245 U. S. 6 0 .............................. 18
Burstyn v. Wilson, 343 U. S. 495 .................................. 25
Burton v. Wilmington Parking Authority, 365 U. S.

715 ...............................................................................  17,18

Chaplinsky v. New Hampshire, 315 U. S. 568 ........... 25
Connally v. General Construction Co., 269 U. S. 385 .. 25
Cooper v. Aaron, 358 U. S. 1 .....................................  22

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933 ..................................................... 17

Freeman v. Retail Clerks Union, Washington Su­
perior Court, 45 Lab. Rel. Ref. Man. 2334 (1959) 22

Garner v. Louisiana, 7 L. ed. 2d 207 .................. 19, 20, 24, 26
Gayle v. Browder, 352 U. S. 903, aff’g 142 F. Supp.

707,712 (M.D. Ala. 1956) ........................................  18
Guinn v. U. S., 238 U. S. 347 .....................................  17

Holmes v. City of Atlanta, 350 U. S. 879 ..................  18

Lambert v. California, 355 U. S. 225 ..........................  25
Lane v. Wilson, 307 U. S. 268 .....................................  17
Lanzetta v. New Jersey, 306 U. S. 451......................  25
Louisiana State University and A & M College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 
358 U. S. 819..............................................................  17

11



Marsh v. Alabama, 326 U. S. 501...................... .........  21
Martin v. Struthers, 319 U. S. 141.............................. 20
Mayor and City Council of Baltimore v. Dawson,

350 U. S. 877 ........................ ...................................... 18
Morrissette v. U. S., 342 U. S. 246 ............................ 25, 26

N.A.A.C.P. v. Alabama, 357 U. S. 449 ......................  20
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ..........................................................  21
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240......... 21

People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 
(1948) .......................................................................... 21

Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 .... 21

Saia v. New York, 334 U. S. 558 .................................. 25
San Diego Bldg. Trades Council v. Garmon, 349 U. S.

236 ...............................................................................  21
Schenck v. United States, 249 U. S. 4 7 ......................  22
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947),

cert, denied 332 U. S. 851..........................................  22
Smith v. California, 361 U. S. 147.............................. 23
State Athletic Commission v. Dorsey, 359 U. S. 533 18
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357 (1959) ........................  22
State of North Carolina v. Nelson, 118 S. E. 2 d ....... 11
Stromberg v. California, 283 U. S. 359 ......................  19

Terminiello v. Chicago, 337 U. S. 1 .............................. 22
Thompson v. City of Louisville, 362 U. S. 199......... 26
Thornhill v. Alabama, 310 U. S. 88 .............................. 19, 21

United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.
Cir. 1956), reversed on other grounds, 357 U. S. 357 21

Ill

PAGE



IV

West Virginia State Board of Education v. Barnette,
319 U. S. 624 ..............................................................  19

Wieman v. Updegraff, 344 U. S. 183..........................  23
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D. C.

Cir. 1961) ...................- ..............................................  18
Williams v. Howard Johnson’s Restaurant, 268 F.

2d 845 (4th Cir. 1959) .............................................  11,18
Winters v. New York, 333 U. S. 507 ..........................  23, 25

S tatutes and Ordinances

A. & J. R. 1955 (49) 85 .............................................  16
Code of Greenville, 1953, as amended 1958 Cumula­

tive Supplement, §31-8 ..................................3,4, 7,11,14
S. C. A. & J. R. 1956 No. 917.....................................  16
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)

1695 repealing S. C. Const. Art. 11, §5 (1895) ....... 16
South Carolina Code Ann. Tit. 58, §§714-720 (1952) 16
South Carolina Code, 1952, §16-388, as amended 1960

(A. & J. R., 1960, R. 896, H. 2135) ............................3,4,13
South Carolina Code

§§21-761 to 779 ....................................................... 16
§21-2.......................................................................... 16
§21-230(7) ..............................................................  16
§21-238 (1957 Supp.) ...........................................  16
§40-452 (1952) ....................................................... 16
§§51-1, 2.1-2.4 (1957 Supp.) .................................. 16
§51-181 ....................................................................  16
§5-19 ..........    16

United States Code, §1257(3), Title 2 8 ........................ 2

Other  A uthorities

Public Welfare Offenses, 33 Columbia L. Rev. 55 
(1933)

PAGE

25



V

INDEX TO APPENDIX
PAGE

Opinion of the Greenville County Court .................  la

Opinion and Judgment of the Supreme Court of 
South Carolina ........................................................  5a

Denial of Rehearing by the Supreme Court of South
Carolina ...................................................................... 11a



I n  t h e

irtpmnp (Emtrt of tlu> HttilTfr ^tate#
October Term, 1961 

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

J ames E ichaed P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph  S trawdbr, H arold J ames 
F owlee, F rank  G. S m it h , E obeet Crockett, J ames 
Carter, D oris D elores W right and R ose M arie Collins,

Petitioners,

City  of Greenville,
Respondent.

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

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on November 10, 1961, 
rehearing of which was denied November 30, 1961.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is re­
ported at 122 S. E. 2d 826 (1961) and is set forth in the 
appendix hereto, infra pp. 5a-10a. The opinion of the Green­
ville County Court is unreported and is set forth in the 
appendix hereto, infra pp. la-4a.



2

Jurisdiction

The Judgment of the Supreme Court of South Carolina 
was entered November 10, 1961, infra pp. 5a-10a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on November 30, 1961, infra p. 11a.

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

Questions Presented

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter where the 
store’s policy of excluding Negroes was made pursuant to 
local custom and a segregation Ordinance of the City of 
Greenville.

2. Whether petitioner sit-in demonstrators were denied 
freedom of expression secured by the Fourteenth Amend­
ment when convicted of trespass upon refusal to move from 
a white-only lunch counter when (a) the manager did not 
request arrest or prosecution and was apparently willing 
to endure the controversy without recourse to the criminal 
process and exclusion from the counter was required by a 
City Ordinance commanding segregation in eating facilities, 
and (b) the convictions rest on a statute which fails to re­



3

quire proof that petitioners were requested to leave by a 
person who had established authority to issue such request 
at the time given.

Constitutional and Statutory 
Provisions Involved

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

2. This case involves Section 16-388, Code of Laws of 
South Carolina, 1952, as amended 1960:

Any person:

(1) Who without legal cause or good excuse enters 
into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

(2) who, having entered into the dwelling house, place 
of business or on the premises of another person with­
out having been warned within six months not to do so, 
and fails and refuses, without good cause or excuse, 
to leave immediately upon being ordered or requested 
to do so by the person in possession, or his agent or 
representative,

Shall, on conviction, be fined not more than one hun­
dred dollars, or be imprisoned for not more than thirty 
days.

3. This case involves Section 31-8, Code of Greenville, 
1953, as amended by 1958 Cumulative Supplement (R. 56, 
57):

It shall be unlawful for any person owning, manag­
ing or controlling any hotel, restaurant, cafe, eating



4

house, hoarding house or similar establishment to fur­
nish meals to white persons and colored persons in the 
same room, or at the same table, or at the same counter; 
provided, however, that meals may be served to white 
persons and colored persons in the same room where 
separate facilities are furnished. Separate facilities 
shall be interpreted to mean:

a) Separate eating utensils and separate dishes 
for the serving of food, all of which shall be distinctly 
marked by some appropriate color scheme or other­
wise;

b) Separate tables, counters or booths;

c) A distance of at least thirty-five feet shall be 
maintained between the area where white and colored 
persons are served;

d) The area referred to in subsection (c) above 
shall not he vacant hut shall be occupied by the usual 
display counters and merchandise found in a business 
concern of a similar nature;

e) A separate facility shall be maintained and used 
for the cleaning of eating utensils and dishes fur­
nished the two races.

Statement

Petitioners, ten Negro students, were arrested for staging 
a sit-in demonstration at the lunch counter of the S. H. 
Kress and Company department store on August 9, 1960 
(R. 3), in Greenville, South Carolina, a City which by 
Ordinance requires segregation in eating facilities (R. 56, 
57) and were convicted of trespass in violation of Section 
16-388, Code of Laws of South Carolina, 1952, as amended



5

1960 and sentenced to pay a fine of one hundred dollars 
($100.00) or serve thirty (30) days in jail (R. 54).

After informing the S. H. Kress and Company depart­
ment store in Greenville of their desire to be served at the 
store’s lunch counter and learning that the manager would 
not press charges against them if they sought service (R. 
43), petitioners, at about eleven A.M., seated themselves 
at the lunch counter and requested service (R. 40, 41). 
White persons were seated at the counter -at the time (R. 
19, 20, 41). Petitioners were told, “ I ’m sorry, we don’t 
serve Negroes” (R. 41).

Also at about eleven A.M., Captain Bramlette of the 
Greenville Police Department received a call to go to the 
Kress store (R. 5). He did not know where the call came 
from (R. 5). He was told that there were colored young 
boys and girls at the lunch counter (R. 9) and he knew that 
the City of Greenville had an Ordinance prohibiting col­
ored and white persons being seated at the same lunch 
counter (R. 9). He arrived at the store with several city 
policemen and found two agents of the South Carolina Law 
Enforcement Department already present at the lunch 
counter (R. 6). He noticed the ten petitioners seated at 
the lunch counter (R. 6) which could accommodate almost 
fifty-nine persons (R. 27). The petitioners were orderly 
and inoffensive in demeanor (R. 12, 25, 26).

In the presence of the police officers the counter lights 
were turned out (R. 19) and G. W. West, manager of 
the store requested “ . . . everybody to leave, that the lunch 
counter was closed” (R. 19). At the trial, petitioners’ coun­
sel was denied permission to ascertain whether this re­
quest followed arrangement or agreement with the Police 
(R. 23, 24, 26). Neither Mr. West, the manager, nor the 
police officers, testified that West identified himself or his 
authority to the petitioners either before or after making



6

this announcement.1 When petitioners made no attempt to 
leave the lunch counter, Captain Bramlette placed them 
under arrest (R. 20).2

Store manager West at no time requested that defen­
dants be arrested (R. 26):

Q. And you at no time requested Captain Bramlette 
and the other officers to place these defendants under 
arrest, did you? A. No, I did not.

Q. That was a matter, I believe, entirely up to the 
law enforcement officers? A. Yes, sir.

White persons were seated at the counter when the an­
nouncement to close was made (R. 20, 33, 34) but no white 
person was arrested (R. 34). As soon as petitioners were 
removed by the police, the lunch counter was reopened 
(R. 24, 34).

West testified that one of the store’s employees called 
the police (R. 23) but when petitioners’ counsel attempted 
to bring out any arrangements or agreements between the 
store and the police, the Court denied permission to pro­
ceed (R. 23-24, 26). But West testified that he closed the 
lunch counter because of the Greenville City Ordinance 
requiring racial segregation in eating facilities and local 
custom:

1 There is evidence that one of the petitioners, Doris Wright, had 
spoken with the store manager prior to the demonstration (R. 43), 
but the record is without evidence that any of the other petitioners 
were informed or had reason to know that the person who re­
quested them to leave had authority to do so. Doris Wright, more­
over, testified that the request to leave was made by the Police and 
not by manager West who “ . . . was coming from the back at the 
time . . . the arrests were being made” (R. 42, 47).

2 Four other Negro demonstrators were arrested but their cases 
were disposed of by the juvenile authorities (R. 6).



7

Q. Mr. West, why did you order your lunch counter 
closed? A. It’s contrary to local custom and it’s also 
the Ordinance that has been discussed (R. 25).

On cross examination, Captain Bramlette, the arresting 
officer, evidenced confusion as to whether defendants were 
arrested because they violated Greenville’s Ordinance re­
quiring segregation in eating facilities or the State of South 
Carolina’s trespass statute (R. 16, 17):

Q. Did the manager of Kress’, did he ask you to 
place these defendants under arrest, Captain Bram­
lette? A. He did not.

Q. He did not? A. No.
Q. Then why did you place them under arrest? A. 

Because we have an Ordinance against it.
Q. An Ordinance? A. That’s right.
Q. But you just now testified that you did not have 

the Ordinance in mind when you went over there? 
A. State law in mind when I went up there.

Q. And that isn’t the Ordinance of the City of Green­
ville, is it? A. This supersedes the order for the City 
of Greenville.

Q. In other words, you believe you referred to an 
ordinance, but I believe you had the State statute in 
mind? A. You asked me have I, did I have knowledge 
of the City Ordinance in mind when I went up there 
and I answered I did not have it particularly in my 
mind, I said I had the State Ordinance in my mind.

Q. I see and so far this City Ordinance which re­
quires segregation of the races in restaurants, you at 
no time had it in mind, as you went about answering 
the call to Kress’ and placing these people under ar­
rest? A. In my opinion the state law was passed re­
cently supersedes our City Ordinance.



8

This “ State Law” is the trespass statute petitioners were 
charged with violating. Previously, Captain Bramlette had 
testified that he thought the State’s trespass statute pro­
hibited “ sit-ins.” He later admitted that the statute did 
not mention “ sit-ins” (E. 14).

Kress and Company is a large nationwide chain (E. 21) 
which operates junior department stores (E. 21). The 
Greenville branch has fifteen to twenty departments, sells 
over 10,000 items and is open to the general public (E. 21, 
22). Negroes and whites are invited to purchase and are 
served alike with the exception that Negroes are not served 
at the lunch counter which is reserved for whites (E. 22). 
Kress’s national policy is “ to follow local customs” with 
regard to serving Negroes and whites at its lunch counters 
(E. 22, 23).

Petitioners were tried and convicted in the Eecorder’s 
Court of Greenville before the City Eecorder, sitting with­
out a jury, and sentenced to pay a fine of one hundred 
dollars ($100.00) or serve thirty (30) days in the City jail 
(E. 2, 54).

Petitioners appealed the judgment of Eecorder’s Court 
to the Greenville County Court, which Court dismissed the 
appeal on March 17,1961 (E. 57-60).

The Supreme Court of South Carolina entered its judg­
ment, affirming the judgment and sentences below on No­
vember 10, 1961, infra pp. 5a-10a, and denied rehearing on 
November 30, 1961, infra p. 11a.



9

How the Federal Questions Were Raised

At the commencement of the trial in the Recorder’s Court 
of the City of Greenville, petitioners moved to quash the 
informations and dismiss the warrants on the ground that 
the charge was too uncertain and indefinite to apprise peti­
tioners of the charge against them, in violation of the due 
process clause of the Fourteenth Amendment to the Con­
stitution of the United States (R. 2, 3). The motion was 
denied by the Court (R. 3).

At the close of the prosecution’s case, petitioners moved 
to dismiss the warrants against them:

“ The evidence presented on the charge shows conclu­
sively that by arresting the defendants the officers were 
aiding and assisting the owners and managers of 
Kress’ Five and Ten Cent Store, in maintaining their 
policies of segregating or excluding service to Negroes 
at its lunch counter . . .  in violation of defendants’ 
rights to due process of law, and equal protection of 
the laws, under the 14th Amendment to the United 
States Constitution” (R. 28, 29);

“ that the warrant which charges them with trespass 
after warning, the designation of the act being set 
forth as invalid, in that the evidence establishes merely 
that defendants were peacefully upon the premises of
S. H. Kress & Company, which establishment is per­
forming an economic function invested with the public 
interest as customers, visitors, business guests or in­
vitees and there is no basis for the charge recited by 
the warrants other than an effort to exclude these de­
fendants from the lunch counters of Kress’ Five and 
Ten Cent Store, because of their race and color . . . 
thereby depriving them of liberty without due process



10

of law and equal protection of the laws secured to them 
by the 14th Amendment to the United States Consti­
tution” (E. 29, 30);

“ The designation of the act being set forth in the war­
rant under which all these defendants, who are 
Negroes, were arrested and charged is on the evidence 
unconstitutional as applied to the defendants, in that 
it makes it a crime to be on property open to the public 
after being asked to leave because of race and color 
in violation of the defendants’ rights under the due 
process and equal protection clauses of the 14th Amend­
ment to the United States Constitution” (E. 30).

These motions were denied by the Court (E. 29, 30).

Petitioners further moved for a dismissal on the ground 
that the City had not established a prima facie case (E. 30). 
This motion was denied (E. 30).

At the close of the trial, petitioners renewed all motions 
for dismissal made at the conclusion of the City’s case 
(E. 52). These motions were again denied (E. 52). Fur­
ther, petitioners moved for dismissal of the cases on the 
ground that:

“ . . . the Negro defendants, were arrested and charged 
under a statute which is itself unconstitutional on 
its face, by making it a crime to be on public property 
after being asked to leave by an individual, at such 
individual’s whim. In that, such statute does not re­
quire that the person making the demand to leave, pre­
sent documents or other evidence of possessing a right 
sufficient to apprise the defendants of the validity of 
the demand to leave. All of which renders the statute 
so vague and uncertain, as applied to the defendants, 
as to violate their rights under the due process clause



11

of the 14th Amendment to the United States Consti­
tution . . . ”

This motion was denied by the Court (R. 53).

At the close of petitioners’ trial, but before judgment, 
petitioners’ counsel moved to place Greenville’s segrega­
tion in eating facilities Ordinance in evidence for considera­
tion in regard to the judgment (R. 53). The Court denied 
this motion (R. 54) but the Ordinance was placed in record 
on appeal (R. 56).

Subsequent to judgment, petitioners renewed all motions 
made prior thereto by moving for arrest of judgment or, 
in the alternative, a new trial (R. 54). The motion was not 
granted (R. 54, 55).

After considering petitioners’ exceptions (R. 60), the 
Greenville County Court, on appeal held:

“ . . . the appeal should be dismissed because the prose­
cution was conducted under a valid constitutional stat­
ute and in addition the appeal should be dismissed upon 
the ground that S. H. Kress and Company has a right 
to control its own business. We think this position is 
fully sustained under the recent case of Williams v. 
Johnson, Res. 344, 268 Fed. (2d) 845 and the North 
Carolina case of State v. Nelson decided January 20, 
1961 and reported in 118 S. E. (2d) at page 47” (R. 60).

In appealing to the Supreme Court of South Carolina, 
petitioners set forth the following exceptions to the judg­
ment below (R. 61-63):

“1. The Court erred in refusing to hold that the 
warrant is vague, indefinite and uncertain and does 
not plainly and substantially set forth the offense 
charged, thus failing to provide appellants with suffi­



12

cient information to meet the charges against them as 
is required by the laws of the State of South Carolina, 
in violation of appellants’ rights to due process of law, 
secured by the Fourteenth Amendment to the United 
States Constitution.

2. The Court erred in refusing to hold that the 
State failed to establish the corpus delicti.

3. The Court erred in refusing to hold that the 
State failed to prove a prima facie case.

4. The Court erred in refusing to hold that the evi­
dence of the State shows conclusively that by arresting- 
appellants the officers were aiding and assisting the 
owners and managers of S. H. Kress and Company in 
maintaining their policies of segregating or excluding 
service to Negroes at their lunch counters on the ground 
of race or color, in violation of appellants’ right to due 
process of law and equal protection of the laws, se­
cured by the Fourteenth Amendment of the United 
States Constitution.

5. The Court erred in refusing to hold that the evi­
dence establishes merely that the appellants were 
peacefully upon the premises of S. H. Kress and Com­
pany, an establishment performing an economic func­
tion invested with the public interest as customers, 
visitors, business guests or invitees, and that there is 
no basis for the charge recited by the warrants other 
than an effort to exclude appellants from the lunch 
counter of said business establishment because of their 
race and color, thereby depriving appellants of liberty 
without due process of law and equal protection of 
the laws, secured by the Fourteenth Amendment to 
the United States Constitution.



13

6. The Court erred in refusing to hold that the stat­
ute appellants are alleged to have violated, to wit, Act 
No. 743 of the Acts and Joint Resolutions of the Gen­
eral Assembly of South Carolina for 1960 (R. 896, 
H. 2135), is unconstitutional on its face by making it 
a crime to be on public property after being asked to 
leave by an individual at such individual’s whim and 
does not require that the person making the demand to 
leave present documents or other evidence of pos­
sessory right sufficient to apprise appellants of the 
validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to ap­
pellants as to violate their rights under the due process 
clause of the Fourteenth Amendment to the United 
States Constitution.

7. The Court erred in refusing to permit defendants’ 
counsel to elicit relevant testimony concerning coopera­
tion of Store Managers and Police in the City of Green­
ville, South Carolina in pursuing the store managers’ 
policies, customs and practices of segregating or ex­
cluding Negroes from their lunch counters.”

In disposing of petitioners’ constitutional objections, the 
Supreme Court of South Carolina held that the charge in 
the warrant was “ definite, clear and unambiguous” infra 
p. 7a; that “ the act makes no reference to race or color 
and is clearly for the purposes of protecting the rights of 
the owners or those in control of private property. Irrespec­
tive of the reason for closing the counter, the evidence is 
conclusive that defendants were arrested because they chose 
to remain upon the premises after being requested to leave 
by the manager . . . and their constitutional rights were 
not violated when they were arrested for trespass,” infra 
pp. 8a, 9a.



14

The Court disposed of Greenville’s Ordinance requiring 
segregation in eating facilities as follows:

“Upon cross-examination of Capt. G. 0. Bramlette 
of the Greenville City Police Department, it was 
brought out that the City of Greenville has an ordi­
nance making it unlawful for any person owning, man­
aging, or controlling any hotel, restaurant, cafe, etc., 
to furnish meals to white persons and colored persons 
except under certain conditions; and Defendants con­
tend that they were prosecuted under this ordinance; 
however, the warrant does not so charge and there is 
nothing in the record to substantiate this contention. 
The ordinance was made a part of the record upon 
request of defendants’ counsel hut defendants were 
not charged with having violated any of its provisions. 
The question of the validity of this ordinance was not 
before the trial Court and therefore not before this 
Court on appeal.”

Reasons for Granting the Writ

The Court below decided this case in conflict with prin­
ciples declared by this Court as is further set forth below:

I.
Petitioners were denied due process of law and equal 

protection of the laws by conviction of trespass in re­
fusing to leave white lunch counter where their exclu­
sion was required by City Ordinance.

Although formally charged with violation of South Caro­
lina’s trespass statute, petitioners were actually convicted 
of having violated the segregation policy of the City of 
Greenville. This policy is expressed in Section 31-8, Code



15

of Greenville, 1953, as amended 1958 Cumulative Supple­
ment, see supra p. 3, making it unlawful “ . . .  to furnish 
meals to white persons and colored persons in the same 
room, or the same table, or at the same counter . . . ” 
(E. 56-57).

G. W. West, the Manager of the department store, and 
a Kress employee for fifteen years3 (E. 20) testified ex­
plicitly that exclusion of Negroes from the lunch counter 
and the closing of the counter when petitioners sought 
service, was caused by the City Ordinance requiring seg­
regation in eating facilities (E. 25).

Confirmation that the police were enforcing segregation 
is indicated by the fact that some whites seated at the 
lunch counter during the demonstration remained seated 
and were not arrested (E. 34) although the announcement 
to leave was made in general terms (E. 19) and at least 
five policemen were present (E. 5, 6). Moreover, the coun­
ter was reopened as soon as petitioners were removed by 
the police (E. 25).

Further confirmation that the policy of enforcing segre­
gation was the City’s appears from how the arrests were 
made. The police proceeded to Department Store without 
requests to arrest by the management (E. 5), and arrested 
petitioners without a request from the management (E. 26). 
The manager of the store testified that arrest was entirely 
the decision of the police (E. 26) and it does not appear 
that the management signed any complaint against peti­
tioners.

Prior to the demonstration, a representative of peti- 
tioers had discussed the question of service with the man­

3 West came to live in Greenville on February 3, 1960, the day 
he became Manager of the Kress Store. Prior to this he worked 
for Kress in other Cities (K. 20, 21).



16

ager and had been told that the criminal process would 
not be invoked by the store (R. 43). This was not the first 
demonstration petitioners had held in Kress’s (R. 44). 
When petitioners’ counsel attempted to question the man­
ager as to any agreement or arrangement he had made with 
the police prior to the closing of the lunch counter, the 
Court denied permission to proceed (R. 23, 24, 26).

On this record it is clear that Kress and Company would 
have been willing to cope with the controversy within the 
realm of social and economic give and take absent the Ordi­
nance of the City of Greenville requiring segregation and 
the force of local customs supported by the City and the 
State of South Carolina.4 If, as the manager testified, 
Kress & Company maintained the policy of segregation 
because of the Ordinance, then there can be no other con­
clusion than that the City, by the Ordinance and by arrest 
and criminal conviction, has “ place [d] its authority behind 
discriminatory treatment based solely on color . . . ” Mr. * S.

4 There can be little doubt that segregation of the races had 
been and is the official policy of the State of South Carolina. Cf.
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 re­
pealing S. C. Const. Art. 11, §5 (1895) (which required legislature 
to maintain free public schools). S. C. Code §§21-761 to 779 (regu­
lar school attendance), repealed by A. & J. R. 1955 (49) 85; §21-2 
(appropriations cut off to any school from which or to which any 
pupil transferred because of court order; §21-230(7) (local trustees 
may or may not operate schools); §21-238 (1957 Supp.) (school 
officials may sell or lease school property whenever they deem it 
expedient) ; S. C. Code §40-452 (1952) (unlawful for cotton textile 
manufacturer to permit different races to work together in same 
room, use same exits, bathrooms, etc., $100 penalty and/or im­
prisonment at hard labor up to 30 days; S. C. A. & J. R. 1956 
No. 917 (closing park involved in desegregation su it); S. C. Code 
§§51-1, 2.1-2.4 (1957 Supp.) (providing for separate State Parks) 
§51-181 (separate recreational facilities in cities with population 
in excess of 60,000); §5-19 (separate entrances at circus); S. C. 
Code Ann. Tit. 58, §§714-720 (1952) (segregation in travel 
facilities).



17

Justice Frankfurter dissenting in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 727. The City Ordinance 
is no abstract exhortation but obligatory by its terms, to 
which were attached criminal sanctions, and it is uncon­
tradicted that one of the reasons Kress & Company chose 
a policy of racial segregation was because of the Ordinance.

The discriminatory practice of Kress, the request that 
petitioners leave and their arrest and conviction, result, 
therefore, directly from the formally enacted policy of the 
City of Greenville, South Carolina, and not (so far as 
this record indicates) from any individual or corporate 
business decision or preference of the management of the 
store to exclude Negroes from the lunch counter. Whatever 
the choice of the property owner may have been, here the 
City made the choice to exclude petitioners from the prop­
erty through its segregation Ordinance. This City segrega­
tion policy was enforced by petitioners’ arrests, convictions 
and sentences in the South Carolina courts.

The Supreme Court of South Carolina dismisses ref­
erence to the City segregation Ordinance by stating “ The 
Ordinance was made a part of the record upon request of 
defendants’ counsel but defendants were not charged with 
having violated any of its provisions.” But the Constitu­
tion forbids “ sophisticated as well as simple-minded modes 
of discrimination.” Lane v. Wilson, 307 U. S. 268, 275.5

By enacting, first, that persons who remain in a restau­
rant when the owner demands that they leave are “ tres­
passers,” and then enacting that restaurateurs may not 5

5 Racial segregation imposed under another name often has been 
condemned by this Court. Guinn v. U. S., 238 U. S. 347; Lane v. 
Wilson, supra; Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933; and see Louisiana State University and A. & 
M. College v. Dudley, 252 F. 2d (5th Cir. 1958) cert, denied 358 
U. S. 819.



18

permit Negroes to remain in white restaurants, South 
Carolina has very clearly made it a crime (a trespass) for 
a Negro to remain in a white restaurant. The manager 
of Kress’s admits as much when he testified that the lunch 
counter was closed and petitioners asked to leave because 
of the Ordinance (R. 25).

This case thus presents a plain conflict with numerous 
prior decisions of this Court invalidating state efforts to 
require racial segregation. Buchanan v. Warley, 245 U. S. 
60; Brown v. Board of Education, 347 U. S. 483; Gayle v. 
Browder, 352 U. S. 903 aff’g 142 F. Supp. 707, 712 (M. D. 
Ala. 1956); Holmes v. City of Atlanta, 350 U. S. 879; Mayor 
and City Council of Baltimore v. Dawson, 350 U. S. 877; 
State Athletic Commission v. Dorsey, 359 U. S. 533; cf. 
Burton v. Wilmington Parking Authority, 365 U. S. 715. 
Note the dissenting opinion of Judges Bazelon and Edger- 
ton in Williams v. Hot Shoppes, Inc., 293 F. 2d 835, 843 
(D. C. Cir. 1961) (dealing primarily with the related issue 
of whether a proprietor excluding a Negro under an er­
roneous belief that this was required by state statute was 
liable for damages under the Civil Rights Act; the majority 
applied the equitable abstention doctrine). Indeed, Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845, 847 (4th 
Cir. 1959) relied upon by the Supreme Court of South Caro­
lina below, indicated that racial segregation in a restau­
rant “ in obedience to some positive provision of State law” 
would be a violation of the Fourteenth Amendment. See 
also Boman v. Birmingham Transit Company, 280 F. 2d 
531 (5th Cir. 1960); Baldwin v. Morgan, 287 F. 2d 750 
(5th Cir. 1961).



19

II.
The decision below conflicts with decisions of this 

Court securing the right of freedom of expression under 
the Fourteenth Amendment to the Constitution of the 
United States.

A. The Enforcement of the State and City Segregation 
Policy and the Interference of the Police Violated 
Petitioners’ Right to Freedom of Expression.

Petitioners were engaged in the exercise of free ex­
pression, by verbal and nonverbal requests to the manage­
ment for service, and nonverbal requests for nondiscrimina- 
tory lunch counter service, implicit in their continued 
remaining in the dining area when refused service. As Mr. 
Justice Harlan wrote in Garner v. Louisiana-. “We would 
surely have to be blind not to recognize that petitioners 
were sitting at these counters, when they knew they would 
not be served, in order to demonstrate that their race was 
being segregated in dining facilities in this part of the 
country.” 7 L. ed. 2d at 235-36. Petitioners’ expression 
(asking for service) was entirely appropriate to the time 
and place at which it occurred. They did not shout or 
obstruct the conduct of business. There were no speeches, 
picket signs, handbills or other forms of expression in the 
store possibly inappropriate to the time and place. Rather 
they offered to purchase in a place and at a time set aside 
for such transactions. Their protest demonstration was a 
part of the “ free trade in ideas” (Abrams v. United States, 
250 U. S. 616, 630, Holmes, J dissenting), within the range 
of liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U. S. 359 
(display of red flag); Thornhill v. Alabama, 310 U. S. 88 
(picketing); West Virginia State Board of Education v.



20

Barnette, 319 IT. S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 IT. S. 449 (freedom of association).

Questions concerning freedom of expression are not re­
solved merely by reference to the fact that private property 
is involved. The Fourteenth Amendment right to free ex­
pression on private property takes contour from the cir­
cumstances, in part determined by the owner’s privacy, 
his use and arrangement of his property. In Breard v. 
Alexandria, 341 IT. S. 622, the Court balanced the “house­
holder’s desire for privacy and the publisher’s right to 
distribute publications” in the particular manner involved, 
upholding a law limiting the publisher’s right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U. S. 
141 where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of asser­
tion and the action of the State, through its officers, its 
customs and its creation of the property interest are to be 
taken into account.

In this constitutional context it is crucial, therefore, 
that the stores implicitly consented to the protest and did 
not seek intervention of the criminal law. For this case 
is like Garner v. Louisiana, supra, where Mr. Justice Har­
lan, concurring, found a protected area of free expression 
on private property on facts regarded as involving “ the 
implied consent of the management” for the sit-in demon­
strators to remain on the property. Petitioners informed 
the management that there would be a protest and received 
assurance that the management would not resort to the 
criminal process. Petitioners were not asked to leave the 
counter until the police arrived and the manager talked 
with the police. It does not appear that anyone connected 
with the store signed an affidavit or complaint against 
petitioners. The police officer proceeded immediately to



21

arrest the petitioners without any request to do so on 
the part of anyone connected with the store.

In such circumstances, petitioners’ arrest must he seen 
as state interference in a dispute over segregation at this 
lunch counter, a dispute being resolved by persuasion and 
pressure in a context of economic and social struggle be­
tween contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U. S. 236.

But even to the extent that the store may have acquiesced 
in the police action a determination of free expression 
rights still requires considering the totality of circum­
stances respecting the owner’s use of the property and the 
specific interest which state judicial action supports. Marsh 
v. Alabama, 326 U. S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 U. S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir. 
1956), reversed on other grounds, 357 U. S. 357, and com­
pare the cases mentioned above with N.L.R.B. v. Fansteel 
Metal Corp., 306 U. S. 240, 252, condemning an employee 
seizure of a plant. In People v. Barisi, 193 Mi sc. 934, 86



22

N. Y. S. 2d 277, 279 (1948) the Court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “ circumscribed by the constitutional rights of those 
who use it.” See also Freeman v. Retail Clerks Union, 
Washington Superior Court, 45 Lab. Eel. Ref. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent state 
interest being subserved by these trespass prosecutions is 
support of the property owner’s discrimination, a policy 
which the manager testified was caused by the State’s seg­
regation custom and policy and the express terms of the 
City Ordinance. This is the most that the property owner 
can he found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “ in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the State has the right to prevent. 
ScJienck v. United States, 249 U. S. 47, 62. The only “ sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimina­
tion of racial discrimination, but this is not an “ evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v. 
Chicago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877 
(8th Circuit, 1957), cert, denied 332 U. S. 851.



23

B. The Convictions Deny Petitioners’ Right to Freedom 
of Expression in That They Rest on a Statute Which 
Fails to Require Proof That Petitioners Were Re­
quested to Leave by a Person Who Had Established 
Authority to Issue Such Request at the Time Given.

In the courts below petitioners asserted that the statute 
in question denied due process of law secured by the Four­
teenth Amendment to the Constitution of the United States 
in that it did not require that the person requesting them 
to leave the lunch counter establish his authority to make 
the demand. Although raised and pressed below by peti­
tioners, the Supreme Court of South Carolina failed to 
construe the statute to require proof that the person who 
requested them to leave establish his authority.

If in the circumstances of this case free speech is to be 
curtailed, the least one has a right to expect is reasonable 
notice in the statute under which convictions are obtained, 
to that effect. Winters v. New York, 333 U. S. 507. Here, 
absent a statutory provision that the person making the 
request to leave be required to communicate that authority 
to the person asked to leave, petitioners, in effect, have 
been convicted of crime for refusing to cease their pro­
tests at the request of a person who could have been a 
stranger. The stifling effect of such a rule on free speech 
is obvious. See Wieman v. JJpdegraff, 344 U. S. 183; Smith 
v. California, 361 U. S. 147.

The vice of lack of fair notice was compounded where, 
as here, petitioners were convicted under a statute which 
designated two separate crimes, see supra p. 3, and a 
warrant which failed to specify under which section the 
prosecution proceeded (R. 2). Moreover, the warrant and 
the trial court stated that petitioners were charged with 
“trespass after warning” (R. 2) (Section (1) of the Stat­
ute speaks of being “warned” ; Section (2) “ without having 
been warned” ), but the prosecution offered no proof that



24

petitioners had been “warned” within six months as re­
quired by Section (1) and apparently proceeded on the 
theory that Section (2) of the statute was involved.

This record is barren of any attempt by the City of 
Greenville to prove that the person who requested peti­
tioners to leave identified his authority to do so to petition­
ers, and the courts of South Carolina, although urged by 
petitioners, failed to require such proof. While one of the 
petitioners brought out, when questioned by her own coun­
sel, that she had spoken to the manager previously,6 there 
is no evidence that the other petitioners knew the authority 
of the person who gave the order to leave. With rights 
to freedom of expression at stake, the City should be re­
quired to provide clear and unambiguous proof of all the 
elements of the crime. Identification of authority to make 
the request to leave is all the more important because of 
the active role played by the police in this case, for if the 
police were enforcing segregation clearly petitioners had 
a right to remain at the counter. Garner v. Louisiana, 
supra.

No one ordinarily may be expected to assume that one 
who tells him to leave a public place, into which the pro­
prietor invited him and in which he has traded, is authorized 
to utter an order to leave when no claim of such authority 
is made. This is especially true in the case of a Negro seat­
ing himself in a white dining area in Greenville, South 
Carolina—obviously a matter of controversy and one which 
any stranger, or the police of a city with a segregation 
ordinance, might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when so ordered to do so by a person who later turns

6 She also testified that the police, not the manager, gave the 
order for petitioners to leave. See Note 1, supra.



25

out to have been in authority without a claim of authority 
at the time, it means as a practical matter, that one must 
depart from public places whenever told to do so by any­
one; the alternative is to risk tine or imprisonment. Such 
a rule might be held a denial of due process. Cf. Lambert v. 
California, 335 U. S. 225. But if such is the rule the statute 
gives no fair warning, Winters v. New York, supra; Burstyn 
v. Wilson, 343 U. S. 495; Saia v. New York, 334 U. S. 558; 
Chaplinsky v. New Hampshire, 315 U. S. 568. Absent such 
notice, petitioners surely were entitled to assume that one 
may go about a public place under necessity to observe 
orders only from those who claim with some definiteness 
the right to give them.

Indeed, as a matter of due process of law, if it is the 
rule one must obey all orders of strangers to leave public 
places under penalty of criminal conviction if one uttering 
the order later turns out to have had authority, petitioners 
are entitled to more warning of its harshness than the stat­
ute’s text affirmed. Cf. Connolly v. General Construction 
Co., 269 U. S. 385; Lametta v. New Jersey, 306 U. S. 451. 
Otherwise many persons—like these petitioners—may be 
held guilty of crime without having intended to do wrong. 
This Court has said, however, that:

The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the 
human will and a consequent ability and duty of the 
normal individual to choose between good and evil. 
Morrissette v. U. S., 342 U. S. 246, 250.

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Bev.



26

55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U. S. at 252-260.

On the other hand, however, if South Carolina were to 
read a scienter provision into this ordinance for the first 
time—which it has failed to do although the issue was 
squarely presented in this case—the lack of the necessary 
element of guilt, notice of authority, would require reversal 
under authority of Garner v. Louisiana, supra; Thompson 
v. City of Louisville, 362 U. S. 199.

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should 
be granted.

Respectfully submitted,

J ack  Greenberg 
Constance B aker M otley 
J ames M. N abrit, III 
M ichael M eltsner

10 Columbus Circle 
New York 19, New York

M atthew  J. P erry 
L incoln C. J en k in s , J r.

1107% Washington Street 
Columbia 1, South Carolina

W illie T. S m ith

Greenville, South Carolina

Attorneys for Petitioners



la

APPENDIX

Order

I n THE

GREENVILLE COUNTY COURT

J ames R ichaed P eterson, et al .,

—v.—

City  of Greenville.

APPEAL FROM  TH E  RECORDER’S COURT 

OF T H E  C ITY OF GREENVILLE

This is an appeal to this Court from the Recorder’s 
Court of the City of Greenville.

The Defendants were tried on August 11, 1960, in the 
Greenville City Recorder’s Court before the Recorder, 
John V. Jester, upon a charge of violating the Act of 
May 20, 1960, which in substance makes any person a tres­
passer who refuses to leave the premises of another im­
mediately upon being requested to leave.

The Act is very simple and plain in its language.
It appears that on August 9, 1960, the ten Defendants, 

who are making this appeal, with four other young Negro 
youths went to the store of S. H. Kress and Company and 
seated themselves at the lunch counter at the store. At the 
trial there seemed to be some attempt to minimize the evi­
dence of the officers involved as to whether or not the 
Defendants, now Appellants, refused to leave the premises 
immediately upon the request of the store manager that



2a

they should leave. However, in the argument of the chief 
counsel for the Appellants, all question of doubt in this 
respect is resolved in favor of the City. According to the 
written Brief of the Defendants, the Defendants now 
“ seated themselves at the lunch counter where they sought 
to be served. They were not served and, in fact, were 
told by the management that they could not be served and 
would have to leave. The Defendants refused to leave and 
remained seated at the lunch counter.”

The act clearly makes it a criminal offense for any 
person situated as the Defendants were to refuse or fail 
to “ immediately”  depart upon request or demand.

Therefore, the main question before this Court is whether 
or not the Appellants were lawfully tried on a charge of 
violating this Act by refusing to leave the lunch counter 
immedately when requested to do so.

In the oral argument counsel for the Appellants seemed 
to reply in a vague manner upon an “unconstitutional ap­
plication” of the Statute.

As the Court views the statute it was merely a statutory 
enlargement and re-enactment of the common law in South 
Carolina which has been recognized for more than a half 
century to the effect that when a property owner, whether 
it be a dwelling house or place of business, has the right 
to order any person from the premises whether they be an 
invitee or an uninvited person. This principle of law was 
fully and clearly reaffirmed by the Supreme Court of South 
Carolina in the recent case of State v. Starner, et al., 49 
S. E. (2d) 209.

For scores of years South Carolina has had a number 
of Statutes with reference to the law of trespass. They 
are now embodied as Article 5, Code of 1952, embracing 
Sections 16-381 to 16-394. Section 17-286 particularly refers 
to trespasses after notice.

O rd er  o f  G reen v ille  C o m ity  C ou rt



3a

Therefore, the Act of May 20, 1960, now designated in 
the 1952 Code as Sec. 17-388 is the controlling factor here. 
There can be no doubt that the field into which the Legisla­
ture entered by the enactment of this particular law was 
a well recognized portion of the law of the State of South 
Carolina. The Constitutionality of the Act cannot be ques­
tioned.

Every presumption will be made in favor of the Con­
stitutionality of a statute. There are more than fifty de­
cisions by the Supreme Court of South Carolina to this 
effect. The United States Supreme Court in many cases 
has recognized that there is a presumption in favor of the 
constitutionality of an Act of Congress or of a State or 
Municipal legislative body. In the case of Davis v. Depart­
ment of Labor, 317 U. S. 255, 87 Law Ed. 250, the United 
States Supreme Court held that there is a presumption 
of constitutionality in favor of State statutes. Time and 
time again the Supreme Court of South Carolina has held 
“ the law is well settled that the burden is on the person 
claiming the Act to be unconstitutional to prove and show 
that it is unconstitutional beyond a reasonable doubt” . 
McCollum v. Snipes, 49 S. E. 12, 213 S. C. 254.

In 16 C. J. S. 388, we find this language, “ Statutes are 
presumed to be valid and a party attacking a statute as 
unconstitutional has the burden of proof” . Over five hun­
dred decisions from all over the United States are cited 
to support this statement of the law.

The argument of counsel for the Appellants failed to 
raise a single serious question as to the constitutionality 
of the statute.

Counsel for Appellants insisted upon the right of the 
Defendants to adduce evidence of some alleged conspiracy 
or plan on the part of the officers of the law and store

O rd er  o f  G reen v ille  C oirn ty  C ou rt



4a

management to bring about this prosecution. We think 
the sole issue in the Recorder’s Court was whether or not 
the Defendants were guilty of violating the Act in ques­
tion. They now boldly admit through counsel that they 
defied the management of the store and refused to leave 
when requested. Had they departed from the store im­
mediately, as the law requires they should have, there 
would have been no arrest, but apparently in accordance 
with a preconceived plan they all kept their seats and 
defied the management and refused to leave the premises.

Evidence of any other motive on the part of the manage­
ment would have thrown no light on this case.

In my opinion the appeal should be dismissed because 
the prosecution was conducted under a valid constitu­
tional statute and in addition the appeal should be dis­
missed upon the ground that S. H. Kress and Company 
had a right to control its own business. We think this 
position is fully sustained under the recent case of Wil­
liam v. Johnson, Res. 344, 268 Fed. (2d) 845, and the North 
Carolina case of State v. Nelson, decided January 20, 1961, 
and reported in 118 S. E. (2d) at page 47.

I carefully considered all the exceptions made by the 
Appellants and I am unable to sustain any of them. It is, 
therefore,

Ordered, adjudged and decreed that the Appeal be dis­
missed.

J ames H. P rice,
Special Judge, 

Greenville County Court.

O rd er  o f  G reen v ille  C o u n ty  C ou rt

March 17, 1961.



5a

THE STATE OF SOUTH CAEOLINA

I n the  S itpbeme Court

Opinion

City  of Greenville, 

— v.—
Respondent,

J ames E ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid E alph  S trawder, H arold J ames 
F owler, F rank  G. S m it h , E obert Crockett, J ames 
Carter, D oris D elores W right and E ose M arie Collins,

Appellants.

Appeal From Greenville County 

James H. Price, Special County Judge

Case No. 4761 

Opinion No. 17845 

Filed November 10, 1961

T aylor, C.J. : Defendants were convicted of the charge 
of trespass after notice in violation of Section 16-388, 
Code of Laws of South Carolina, 1952, as amended, and 
appeal. By agreement of counsel, all hail bonds were con­
tinued in effect pending disposition of this appeal.

On August 9, 1960, in response to a call, law enforce­
ment officers were dispatched to the S. H. Kress Store in 
Greenville, South Carolina, a member of a large chain of



6a

stores operated throughout the United States and described 
as a junior department store. Upon arrival they found 
the ten defendants and four others who were under six­
teen years of age, all Negroes, seated at the lunch counter. 
There is testimony to the effect that because of the local 
custom to serve white persons only at the lunch counter 
the manager of the store announced that the lunch counter 
was closed, the lights were extinguished, and all persons 
were requested to leave. The white persons present left, 
hut all Negroes refused to leave; and those above the age 
of sixteen were thereupon charged with trespass after 
notice as provided in the aforementioned section of the 
Code, which provides:

“Any person:

“ (1) Who without legal cause or good excuse enters 
into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

“ (2) Who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not 
to do so, and fails and refuses, without good cause or 
excuse, to leave immediately upon being ordered or 
requested to do so by the person in possession, or his 
agent or representative,

“ Shall, on conviction, be fined not more than one 
hundred dollars or he imprisoned for not more than 
thirty days.”

Defendants contend, first, error in refusing to dismiss 
the warrant upon the ground that the charge contained 
therein was too indefinite and uncertain as to apprise the

O pin ion , S ou th  C a rolin a  S u p rem e  C ou rt



7a

defendants as to what they were actually being charged 
with.

Defendants were arrested in the act of committing the 
offense charged, they refused the manager’s request to 
leave after the lunch counter had been closed and the lights 
extinguished, and there could have been no question in 
defendants’ minds as to what they were charged with. 
Further, there was at that time no claim of lack of suffi­
cient information, and upon trial there was no motion to 
require the prosecution to make the charge more definite 
and certain. Defendants rely upon State v. Randolph,
et al.,------S. C. ——, 121 S. E. (2d) 349, where this Court
held that it was error to refuse defendants’ motion to 
make the charge more definite and certain in a warrant 
charging breach of the peace. It was pointed out in that 
case that breach of the peace embraces a variety of con­
duct and defendants were entitled to be given such in­
formation as would enable them to understand the nature 
of the offense. This is not true in instant case where the 
charges were definite, clear and unambiguous; further, no 
motion was made to require the prosecution to make the 
charge more definite and certain. There is no merit in this 
contention.

Defendants next contend that their arrest and convic­
tion was in furtherance of a custom of racial segregation 
in violation of the Fourteenth Amendment to the Consti­
tution of the United States.

Defendants entered the place of business of the S. H. 
Kress Store and seated themselves at the lunch counter, 
they contend, for the purpose of being served, although 
four of them had no money and there is no testimony 
that such service was to be paid for by others.

The testimony reveals that the lunch counter was closed 
because it was the custom of the S. H. Kress Store in

O pin ion , S o u th  C arolin a  S u p rem e  C ou rt



8a

Greenville, South Carolina, to serve whites only and after 
all persons had left or been removed the lunch counter 
was reopened for business. The statute with no reference 
to segregation of the races applies to “Any person: * * * 
Who fails and refuses without cause or good excuse # * * 
to leave immediately upon being ordered or requested to 
do so by the person in possession or his agent or repre­
sentative, * * # ” The act makes no reference to race or 
color and is clearly for the purpose of protecting the rights 
of the owners or those in control of private property. Ir­
respective of the reason for closing the counter, the evi­
dence is conclusive that defendants were arrested because 
they chose to remain upon the premises after being re­
quested to leave by the manager.

Defendants do not attack the statute as being uncon­
stitutional but contend that their constitutional rights were 
abridged in its application in that they were invitees and 
had been refused service because of their race. The cases 
cited do not support this contention while there are a 
number of cases holding to the contrary. See Hall v. Com­
monwealth, 188 Va. 72, 49 S. E. (2d) 369, 335 U. S. 875, 
69 S. Ct. 240, 93 L. Ed. 418; Henderson v. Trailway Bus 
Company, D. C. Va., 194 F. Supp. 423; State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295; State v. Avent, 253 N. C. 
580, 118 S. E. (2d) 47; Williams v. Howard Johnson 
Restaurant, 4 Cir., 268 F. (2d) 845; Slack v. Atlantic White 
Tower System, Inc., D. C. Md., 181 F. Supp. 124, 4 Cir., 
284 F. (2d) 746; Griffin v. Collins, D. C. Md., 187 F. Supp. 
149; Wilmington Parking Authority v. Burton, Del., 157
A. (2d) 894; Randolph v. Commonwealth, ——- Va. ------ ,
119 S. E. (2d) 817. The Fourteenth Amendment erects 
no shield against merely private conduct, however dis­
criminatory or wrongful, Shelley v. Ivraemer, 334 U. S. 1,

O pin ion , S ou th  C arolin a  S u p rem e  C ou rt



9a

68 S. Ct. 836, 92 L. Ed. 1161, 3 A. L. E. (2d) 441; and the 
operator of a privately owned business may accept some 
customers and reject others on purely personal grounds 
in the absence of a statute to the contrary, Alpaugh v. 
Wolverton, 184 Va. 943, 136 S. E. (2d) 906. In the absence 
of a statute forbidding discrimination based on race or 
color, the operator of a privately owned place of business 
has the right to select the clientele he will serve irrespec­
tive of color, State v. Avent, 253 N. C. 580, 118 S. E. (2d) 
47. Although the general public has an implied license to 
enter any retail store the proprietor or his agent is at 
liberty to revoke this license at any time and to eject 
such individual if he refuses to leave when requested to 
do so, Annotation 9 A. L. E. 379; Annotation 33 A. L. E. 
421; Brookshide-Pratt Mining Co. v. Booth, 211 Ala. 268, 
100 So. 240, 33 A. L. E. 417; and may lawfully forbid any 
and all persons, regardless of reason, race or religion, to 
enter or remain upon any part of his premises which are 
not devoted to public use, Henderson v. Trailway Bus 
Company, 194 F. Supp. 426.

The lunch counter was closed, the lights extinguished, 
and all persons requested to quit the premises. Defen­
dants refused and their constitutional rights were not 
violated when they were arrested for trespass.

Upon cross-examination of Capt. G. O. Bramlette of 
the Greenville City Police Department, it was brought out 
that the City of Greenville has an ordinance making it 
unlawful for any person owning, managing, or controlling 
any hotel, restaurant, cafe, etc., to furnish meals to white 
persons and colored person except under certain condi­
tions; and Defendants contend that they were prosecuted 
under this ordinance; however, the warrant does not so 
charge and there is nothing in the record to substantiate

O pin ion , S ou th  C arolin a  S u p rem e C ou rt



10a

this contention. The ordinance was made a part of the 
record upon request of defendants’ counsel but defendants 
were not charged with having violated any of its provi­
sions. The question of the validity of this ordinance was 
not before the trial Court and therefore not before this 
Court on appeal.

Defendants further contention that the prosecution failed 
to establish the corpus delicti is disposed of by what has 
already been said.

We are of opinion that the judgment and sentences ap­
pealed from should he affirmed; and I t I s So Ordered. 
A ffirmed.

Oxner, L egge, Moss and L ewis, JJ., concur.

O pin ion , S ou th  C a ro lin a  S u p rem e  C ou rt



11a

Certificate

THE STATE OF SOUTH CAROLINA 
1st the  Supreme Court 

Case No. 6032

City  oe Greenville, 

—against—
Respondent,

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph  S trawder, H arold J ames 
F owler, F rank  G. S m it h , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose M arie Collins,

Appellants.

I, Harold R. Boulware, hereby certify that I am a 
practicing attorney of this Court and am in no way con­
nected with the within case. I further certify that I am 
familiar with the record of this case and have read the 
opinion of this Court which was filed November 10, 1961, 
and in my opinion there is merit in the Petition for 
Rehearing.

/ s /  H arold R. B oulware

The Court neither overlooked nor misapprehended any 
of the facts set forth herein. Therefore the Petition is 
denied.

/ s /  C. A. T aylor, C.J.
/ s /  G. D ewey O xner, A.J. 
/ s /  L ionel K. L egge, A.J. 
/ s /  J oseph R. M oss, A.J.
/ s /  J. W oodrow L ewis, A.J.

Columbia, South Carolina 
November 16, 1961.



3 0