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

    jsatjm w  (Hour! nf tln> Matted States
October Term, 1960

No. 943

J o h n  T hom as A v e n t , C allis N apolis B ro w n , S h ir l e y  M ae 
B row n , F rank  M cG il l  C olem an , J oan H arris N elso n , 
D onovan P h il l ip s , a n d  L acy Carrole S treeter ,

Petitioners,
- v -

S tate of N orth  Carolina .

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

T hurgood M arshall 
J ack  Greenberg  
J am es M. N abrit, III 

10 Columbus Circle 
New York 19, New York

L. C. B erry , J r .
W illia m  A. M a rsh , J r.
F. B. M cK issic k
C. 0. P earson 
W. G. P earson

M. H u g h  T h o m pso n  
Durham, North Carolina

E lwood H . C h iso lm  
W illia m  T. C olem an , J r.
L ouis  H . P ollak 
C harles A. R e ic h  
S pottswood W. R obinson , III

Of Counsel

Attorneys for Petitioners

JA M ES M. NABJRilT, UI



I N D E X
PAGE

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

Jurisdiction ..... ,....................................... ....................  1

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

Statutory and Constitutional Provisions Involved .... 3

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

How the Federal Questions Were Eaised and Decided 6 

Reasons for Granting the Writ ........................    11
I—The State of North Carolina has enforced racial 

discrimination contrary to the equal protection 
and due process clauses of the Fourteenth 
Amendment to the Constitution of the United 
States................................................................ . 12

II—The criminal statute applied to convict peti­
tioners gave no fair and effective warning that 
their actions were prohibited; petitioners’ con­
duct violated no standard required by the plain 
language of the law; thereby their conviction 
offends the due process clause of the Four­
teenth Amendment and conflicts with principles 
announced by this Court..............................   20

III—The decision below conflicts with decisions of 
this Court securing the Fourteenth Amend­
ment right to freedom of expression ....    26

Co n c l u s io n ...................................................................  30

A p p e n d ix ................................................................................................ l a



11

PAGE

T able, of C ases

Baldwin v. Morgan, —— F. 2d -----  (5th Cir, No.
18280, decided Feb. 17, 1961) ................................... 13

Barrows v. Jackson, 346 U. S. 249 ...............................  13
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 ......  18
Bolling v. Sharpe, 347 U. S. 497 ................................... 13
Boman v. Birmingham Transit Co., 280 F. 2d 531___  13
Breard v. Alexandria, 341 U. S. 622 ............................ 28
Brown v. Board of Education, 347 U. S. 483 .............. 13
Buchanan v. Warley, 245 U. S. 6 0 ................. .......... 13,18
Burstyn v. Wilson, 343 II. S. 495 ............................. . 29
Burton v. Wilmington Parking Authority, 29 U. S. L. 

Week 4317 (April 17, 1961) ........................ 14,16,18,19

Chaplinsky v. New Hampshire, 315 U. S. 568 ...... ....... 26
Civil Rights Cases, 109 U. S. 3 ...................................14,18
Cooper v. Aaron, 358 IT. S. 1 ....................................... 13

District of Columbia v. John R. Thompson Co., 346 
U. S. 100...................................................................18,22

Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Rel. Ref. Man. 2334 (1959) .............. 29

Gayle v. Browder, 352 U. S. 903 ................................... 13
Gibson v. Mississippi, 162 U. S. 565 ........................ 14,19

Herndon v. Lowry, 301 U. S. 242 ............................... 24, 26

Lanzetta v. New Jersey, 306 U. S. 451 .................22, 24, 25
Lochner v. New York, 198 U. S. 45...............................  18

e-

McBoyle v. United States, 283 U. S. 25 ____ _____ 23, 25
Marsh v. Alabama, 326 U. S. 501 ....................... ........15,18



Ill

PAGE

Martin v. Struthers, 319 U. S. 141 ................................ 29
Maryland v. Williams, 44 Lab. Eel. Eef. Man. 2357

(1959) ............... ....................................................... . 28
Monroe v. Pape,-----U. S. —— , 5 L. ed. 2d 492 (1961) 13
Munn v. Illinois, 94 U. S. 113......................................  18

N. A. A. C. P. v. Alabama, 357 U. S. 449 .................... 13, 29
N. L. E. B. v. American Pearl Button Co., 149 F. 2d

258 (8th Cir. 1945) .......... ................................. ......... 27
N. L. E. B. v. Fansteel Metal Corp., 306 U. S. 240 ....... 27

Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 .......... 18
People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 (1948) 28
Pierce v. United States, 314 U. S. 306 ........................  22

Eailway Mail Ass’n v. Corsi, 326 U. S. 88 ...... ..........  18
Eepublic Aviation Corp. v. National Labor Eelations 

Board, 324 U. S. 793 ................................... .............  27

Schenck v. United States, 249 U. S. 47 ............ ..... ...... 29
Screws v. United States, 325 U. S. 911............... ........  13
Shelley v. Kraemer, 334 U. S. 1 ........ ..........................13,15
State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295

(1958) ...................................................................... 20,21
Strauder v. West Virginia, 100 U. S. 303 __ _______  14
Stromberg v. California, 283 U. S. 359 ........................  29

Thompson v. City of Louisville, 362 U. S. 199 ..........  22
Thornhill v. Alabama, 310 U. S. 88 ........ .......... ......... 29

United States v. Cardiff, 344 U. S. 174.......................  23
United States v. L. Cohen Grocery Co., 255 U. S. 81 .... 24
United States v. Weitzel, 246 U. S. 533 .................... 23, 24
United States v. Willow Eiver Power Co., 324 U. S. 499 18 
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 23 
United Steelworkers v. N. L. E. B., 243 F. 2d 593 (D. C.

Cir. 1956) ................................................................... 27



IV

PAGE

Valle v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) ..........  13

Western Turf Asso. v. Greenberg, 204 U. S. 359 ......  18

S tatutes

Code of Ala., Tit. 14, §426 ............................................... 25
Compiled Laws of Alaska Ann. 1958, Cum. Supp. Vol.

Ill, §65-5-112 .....    25
Arkansas Code, §71-1803 ........................... ................... 25
Connecticut Gen. Stat. (1958 Rev.) §53-103 .................  25
D. C. Code §22-3102 (Supp. VII, 1956) ........................  25
Florida Code, §821.01 .................................................... 25
Hawaii Rev. Code, §312-1.........   25
Illinois Code, §38-565 .....................................................  25
Indiana Code, §10-4506 .................................................   25
Mass. Code Ann. C. 266, §120 .......................................  25
Michigan Statutes Ann. 1954, Vol. 25, §28.820(1) ......  25.
Minnesota Statutes Ann. 1947, Vol. 40, §621.57 ..........  25
Mississippi Code, §2411 ..........  25
Nevada Code, §207.200 ............    25
N. C. Gen. Stat. §14-126.................................................. 21
N. C. Gen. Stat. §14-134 ................................... 3, 6, 7, 8, 21
Oregon Code, §164.460 ..................................................  25
Ohio Code, §2909.21 .....................................................  25



V

PAGE

Code of Virginia, 1950, §18.1-173 ......................... ...... 25
Wyoming Code, §6-226 ............................. ..................  25
28 IT. S. C. §1257(3) ..................................... ................  2

O t h e r  A u t h o r it ie s

Ballantine, “Law Dictionary” (2d Ed. 1948) 436 ......  26
“Black’s Law Dictionary” (4th Ed. 1951) 625 ..........  26
Pollitt, “Dime Store Demonstrations: Events and 

Legal Problems of the First Sixty Days,” 1960 Duke 
Law Journal 315..........................................  20

5 Powell on Beal Property 493 (1956) .....................  18



I n  t h e

Olmtrt of tlu> I n M  Stairs
October Term, 1960 

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

J o h n  T h o m a s  A v e n t , Ca llis  N apolis B r o w n , S h ir l e y  M ae 
B r o w n , F r a n k  McGtll C o lem a n , J oan H arris N el so n , 
D onovan P h il l ip s , a n d  L acy C arrole S tr e e t e r ,

—v.—
Petitioners,

S tate  of N o rth  Carolina .

P E T IT IO N  FO R  A W R IT  O F  C E R T IO R A R I T O  T H E  
SU PR EM E CO U R T O F  N O R T H  CAROLINA

Petitioners pray that a writ of certiorari issne to review 
the judgment of the Supreme Court of North Carolina 
entered in the above-entitled cause on January 20, 1961.

C itations to  O p in io n s  Below

The opinion of the Supreme Court of North Carolina is 
reported at 118 S. E. 2d 47 and is set forth in the appendix 
attached hereto, infra, p. la.

J u r is d ic tio n

The judgment of the Supreme Court of North Carolina 
was entered January 20, 1961 (Clerk's certificate attached 
hereto, infra, App., p. 22a).1 On April 4, 1961, time for

1 The Clerk’s certificate recites that final judgment was entered 
on January 20, 1961. The record, however, contains no actual form



2

filing a petition for writ of certiorari was extended by the 
Chief Justice to and including May 4, 1961. Jurisdiction 
of this Court is invoked pursuant to 28 U. S. C. §1257(3), 
petitioners having asserted below and claiming here, denial 
of rights, privileges and immunities secured by the Four­
teenth Amendment to the Constitution of the United States.

Questions Presented

1. Whether the due process and equal protection clauses 
of the Fourteenth Amendment suffer the state to use its 
executive and judiciary to enforce racial discrimination in 
a business that has for profit opened its property’ to the 
general public while using the state criminal trespass stat­
ute to enforce racial discrimination within the same prop­
erty.

2. Whether, where the criminal statute applied to con­
vict petitioners gave no fair and effective warning that 
their actions were prohibited, and their conduct violated no 
standard required by the plain language of the law, the 
conviction offends the due process clause of the Fourteenth 
Amendment.

3. Whether the decision below conflicts with decisions 
of this Court securing the Fourteenth Amendment right 
to liberty of expression.

of judgment. Upon inquiry to the Clerk, he informed counsel for 
petitioners that the judgment is a paper prepared by the Clerk. 
Because stay of execution was obtained before he prepared this 
paper, he did not actually complete it and place it in the record.



3

S ta tu to ry  a n d  C o n s titu tio n a l 
P ro v is io n s  Invo lved

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

2. This ease also involves North Carolina General Stat­
utes, §14-134:

Trespass on land after being forbidden. “If any 
person after being forbidden to do so, shall go or enter 
upon the lands of another, without a license therefor, 
he shall be guilty of a misdemeanor, and on conviction, 
shall be lined not exceeding fifty dollars or imprisoned 
not more than thirty days.”

S ta te m e n t

This is one of 2 eases filed here today (the other is State 
v. Fox, No. 442, Supreme Court of North Carolina, Fall 
Term, 1960 reported at 118 S. E. 2d 58) involving whether 
a state may use its criminal trespass statute to enforce 
racial segregation according to the customs of the com­
munity in one portion of a commercial establishment other­
wise open to the public without segregation. The issues 
are similar to those presented by Garner, Briscoe and 
Boston v. State of Louisiana, Nos. 617, 618 and 619, re­
spectively, certiorari granted March 20, 1961, in which a 
state employed a statute forbidding disturbing the peace 
for this purpose.

May 6, 1960, petitioners, five Negro students from North 
Carolina College, Durham, North Carolina (R. 35, 40, 44- 
45, 48, 49) and two white students from Duke University, 
Durham (R. 42, 47) were customers of Kress’s Department 
Store, Durham. The store, in a five story building (R. 20)



4

has approximately fifty counters (including a “stand-up” 
lunch counter) which serve Negroes and whites without 
racial distinction (R. 22). No sign at the store’s entrance 
barred or conditioned Negro patronage (R. 22). Petitioners 
made various purchases (R. 36, 40, 43, 47, 48, 49), as some 
of them had in the past as regular customers (R. 36, 41, 
43, 45, 48), and in time went to the basement lunch counter. 
Here a sign stated “Invited Guests and Employees Only” 
(R. 21, 23). No writing further elucidated this sign’s mean­
ing, but the manager testified that although no invitations 
as such were sent out, white persons automatically were 
considered guests; Negroes and whites accompanied by 
Negroes were not (R. 22-23). The counter was bordered by 
an iron railing (R. 21) and petitioners entered through the 
normal passageway (R. 38).

Some of the petitioners had requested and had been 
denied service on previous occasions at this counter (R. 
38). However, they “continued to try” and at this time 
again “went there for service” (R. 38). They expected to 
be served at the basement lunch counter because they had 
been served upstairs (R. 50). They had not been arrested 
previously for trespassing and were not arrested for tres­
passing upon entering the store through its main doors. 
Nor did they expect to be arrested for trespassing on this 
occasion (R. 38, 44, 50).

Petitioners were participants in an informal student or­
ganization which opposed racial segregation (R. 40), and 
felt they had a right to service at Kress’s basement lunch 
counter after having been customers in other departments 
(R. 40, 42, 50; and see R. 46 (objection to question sus­
tained)). Some had picketed the store to protest its policy 
of welcoming Negroes’ business while refusing them lunch 
counter service (R. 37, 42, 50).



5

The manager again declined to serve them. He stated 
that if Negroes wanted service they might obtain it at the 
back of the store (R. 24), or at a stand-up counter upstairs 
(R. 22), and asked them to leave (R. 21).

“It is the policy of our store to wait on customers depen­
dent upon the custom of the community” (R. 22), he testi­
fied. “It is not the custom of the community to serve 
Negroes in the basement luncheonette, and that is why 
we put up the signs ‘Invited Guests and Employees Only’ ” 
(R. 23).

When petitioners remained seated awaiting service, the 
manager called the police to enforce his demand (R. 21). 
An officer promptly arrived and asked petitioners to leave 
(R. 21). Upon refusal the officer arrested them for tres­
passing (R. 21, 4). Petitioners were indicted in the Su­
perior Court of Durham County, the indictments stating 
that each petitioner

‘■with force and arms, . . . did unlawfully, willfully 
and intentionally after being forbidden to do so, enter 
upon the land and tenement of S. H. Kress and Co. 
store . . . said S. H. Kress and Co., owner, being then 
and there in actual and peaceable possession of said 
premises, under the control of its manager and agent, 
W. K. Boger, who had, as agent and manager, the 
authority to exercise his control over said premises, 
and said defendant after being ordered by said W. K. 
Boger, agent and manager of said owner, S. II. Kress 
and Co., to leave that part of the said store reserved 
for employees and invited guests, willfully and unlaw­
fully refused to do so knowing or having reason to 
know that . . . [petitioner] had no license therefor, 
against the form of the statute in such case made and 
provided and against the peace and dignity of the 
state.” (R. 2, 3, 4, 5, 6,7,8.)



6

Each indictment identified each petitioner as “CM” 
(colored male) (E. 3, 4, 7, 8), “WM” (white male) (E. 5), 
“CF” (colored female) (E. 6), or “WF” (white female) 
(E. 9). Defendants made motions to quash the indictment 
(see infra, pp. 6-7), which raised defenses under the Four­
teenth Amendment to the United States Constitution. 
These were denied (E. 10-12).

Petitioners were tried June 30 and July 1, 1960 (E. 20). 
They pleaded not guilty (E. 15) and were found guilty (E. 
15). Various federal constitutional defenses (see infra, 
pp. 7-9), were made throughout and at the close of the 
trial, but were overruled. Petitioners Coleman, Phillips 
and Callis Napolis Brown were sentenced to thirty days 
imprisonment in the common jail of Durham County to 
work under the supervision of the State Prison Depart­
ment (E. 16, 17, 18). Petitioner Streeter was sentenced 
similarly to twenty days (E. 19). Petitioner Avent was 
sentenced to fifteen days in the Durham County jail (E. 
15). Prayer for judgment was continued in the cases of 
petitioners Shirley Mae Brown and Joan Harris Nelson 
(E. 16-17).

Error was assigned, again raising and preserving fed­
eral constitutional defenses (see, infra, pp. 9-11), and the 
case was heard by the Supreme Court of North Carolina 
which affirmed on January 20, 1961 (Clerk’s certificate fol­
lowing court’s opinion).

H ow  th e  F e d e ra l Q uestions  
W ere  R aised  a n d  D ecided

Prior to trial petitioners filed motions to quash the in­
dictment.

The Negro petitioners alleged that G. S. 14-134 was un­
constitutionally applied to them in that while using facili-



7

ties of S. H. Kress and Company, which was licensed by 
the City and County of Durham to carry on business open 
to the general public, they were charged with trespass on 
account of race and color contrary to the equal protection 
and due process clauses of the Fourteenth Amendment; 
that G. S. 14-134 denied due process of law secured by the 
Fourteenth Amendment in that it was unconstitutionally 
vague; that G. S. 14-134 was unconstitutional under the due 
process and equal protection clauses of the Fourteenth 
Amendment because the arrest was made to aid S. H. 
Kress and Company, which was open to the public, in en­
forcing its whims and caprices against serving members 
of the Negro race on the same basis as members of other 
races, all of whom had been invited to use said establish­
ment; that the defendants who were on the premises of 
S. H. Kress and Company pursuant to an invitation to the 
general public, were denied the use of said establishment 
solely because of race and color, and were arrested for at­
tempting to exercise the right of invitees to equal treatment, 
contrary to the due process and equal protection clauses 
of the Fourteenth Amendment (R. 10-12).

The white petitioners made identical allegations except 
that instead of stating that they were denied constitutional 
rights because of race, they charged that they were indicted 
because of association with the Negro petitioners (R 12- 
14).

The motions to quash were denied and exception was 
taken thereto (R. 12,14).

Following the State’s evidence the Negro petitioners 
made Motions for Dismissal as of Nonsuit (R. 26-35). 
These alleged that petitioners entered S. H. Kress’s store 
to shop and use its facilities; that they had purchased other 
articles in the store; had been trading there for a long 
time prior to arrest; had entered the store in orderly fash-



8

ion; and were arrested when they took seats and requested 
service at the lunch counter. The motions prayed for non­
suit pursuant to the Fourteenth Amendment in that en­
forcement of G. S. 14-134 in these circumstances was state 
action forbidden by the equal protection and due process 
clauses of the Fourteenth Amendment; that defendants 
were denied rights secured by the Civil Eights Act of 1866 
which assures to all citizens the same right in every state 
and county as is enjoyed by white citizens to purchase 
personal property; that S. H, Kress and Company was 
operating under a license of the City of Durham and, 
therefore, petitioners’ arrest at the owner’s behest violated 
the rights secured by the Fourteenth Amendment to the 
Constitution of the United States; that G. S. 14-134 denied 
due process of law secured by the Fourteenth Amendment 
in that it was vague; that G. S. 14-134 denied due process 
of law and the equal protection of the laws in that it was 
applied to carry out the whims and caprices of the pro­
prietor against members of the Negro race; and that peti­
tioners were denied rights secured by the due process and 
equal protection clauses of the Fourteenth Amendment by 
being arrested for attempting to exercise rights to equal 
treatment as invitees of S. H. Kress and Company. These 
motions were denied and exception was taken thereto (E. 
30).

Similar motions filed on behalf of the white petitioners 
alleged that they had been denied these rights because of 
association with Negroes (E. 30-33). These motions were 
denied and exception was taken thereto (E. 33).

Additional Motions for Dismissal as of Nonsuit alleged 
that S. H. Kress was performing an economic function in­
vested with the public interest; that petitioners were peace­
fully upon the premises; that there was no basis for the 
charge other than an effort to exclude petitioners from



9

the store solely because of race; that petitioners were at 
the same time excluded from equal service at the prepon­
derant number of other eating establishments in the City 
of Durham, and that the charge recited by the indictment 
denied to petitioners due process of law and the equal 
protection of the laws secured by the Fourteenth Amend­
ment.

The motion also alleged that petitioners were at all times 
upon an area essentially public; at no time were they defi­
ant or in breach of the peace; that they were peacefully 
exercising rights of assembly and speech to protest racial 
segregation; that the prosecution was procured for the 
purpose of preventing petitioners from speaking and other­
wise peacefully protesting the refusal of the preponderant 
number of stores open to the public in the City of Durham 
to permit Negroes to enjoy certain facilities and that the 
arrests were in aid of this policy all contrary to the due 
process and equal protection clauses of the Fourteenth 
Amendment.

These motions were denied and exceptions were taken 
thereto (R. 34-35).

Following the close of petitioners’ case they renewed 
their written motions to quash the indictments and for dis­
missal as of nonsuit. This motion was denied and exception 
was taken thereto (R. 51).

Assignments of Error were filed against the action of 
the Court in overruling the Motion to Quash (Assignments 
1 and 2, R. 70), in overruling the motion for judgment as 
of nonsuit (Assignments 4, 5, 6 and 7, R. 71), and to the 
action of the Court in overruling defendants’ motions to 
quash the indictments and for dismissal as of nonsuit made 
at the close of all the evidence (Assignment 10, R. 71).



10

The Supreme Court of North Carolina disposed ad­
versely of these constitutional claims. It concluded its 
opinion by stating:

“All of the assignments of error by the defendants 
have been considered, and all are overruled. Defen­
dants have not shown the violation of any of their 
rights, or of the rights of any one of them, as guar­
anteed by the 14th Amendment to the Federal Con­
stitution, and by Article I, §17, of the North Carolina 
Constitution.” (App. p. 21a.)

In explication it held that:
“In the absence of a statute forbidding discrimina­

tion based on race or color in restaurants, thg rule is 
well established that an operator of a privately owned 
restaurant privately operated in a privately owned 
building has the right to select the clientele he will 
serve, and to make such selection based on color, race, 
or White people in company with Negroes or vice 
versa, if he so desires. He is not an innkeeper. This 
is the common law.” (App. p. 7a.)

Moreover, the opinion held tha t:
“ ‘The right of property is a fundamental, natural, 

inherent, and inalienable right. It is not ex gratia from 
the legislature, but ex debito from the Constitution. 
In fact, it does not owe its origin to the Constitutions 
which protect it, for it existed before them. It is some­
times characterized judicially as a sacred right, the 
protection of which is one of the most important ob­
jects of government. The right of property is very 
broad and embraces practically all incidents which 
property may manifest. Within this right are included



11

the right to acquire, hold, enjoy, possess, use, man­
age, . . . property.’ 11 Am. Jur., Constitutional Law, 
§335.” (App. p. 11a.)

To the argument that the action taken below constitutes 
state action contrary to the due process and equal protec­
tion clauses of the Fourteenth Amendment, the Court held:

“Defendants misconceive the purpose of the judi­
cial process here. It is to punish defendants for unlaw­
fully and intentionally trespassing upon the lands of 
S. H. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner.” (Emphasis sup­
plied.) (App. p. 12a.)

Moreover, no freedom of speech and assembly were de­
nied, the Court held:

“No one questions the exercise of these rights by the 
defendants, if exercised at a proper place and hour. 
However, it is not an absolute right.” (App. p. 16a.)

R easons f o r  G ra n tin g  th e  W rit

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



12

I.
T h e  S ta te  o f  N o rth  C a ro lin a  h a s  e n fo rc e d  ra c ia l d is­

c r im in a tio n  c o n tra ry  to  th e  e q u a l p ro te c tio n  a n d  d u e  
p ro ce ss  c lauses o f  th e  F o u r te e n th  A m e n d m e n t to  th e  
C o n s titu tio n  o f  th e  U n ited  S tates.

Petitioners seek certiorari to the Supreme Court of North 
Carolina, having unsuccessfully contended below that their 
conviction constitutes state enforcement of racial discrimi­
nation contrary to the equal protection and due process 
clauses of the Fourteenth Amendment. In rejecting peti­
tioners’ claim, the court below held that “ . . . the purpose 
of the judicial process” was “ . . . to punish defendants 
for unlawfully and intentionally trespassing upon the lands 
of S. II. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner” (App. p. 12a). An­
swering the claim that this was state action prohibited by 
the Fourteenth Amendment, the court below replied that 
the right of property is “fundamental, natural, inherent 
and inalienable,” being “not ex gratia from the legislature, 
but ex debito from the Constitution” (App. p. 11a); that 
the right could be characterized as “sacred” ; and that the 
North Carolina trespass laws were “color blind,” their sole 
purpose being to protect property from trespassers (Id.). 
The Court held that the police and judicial action in arrest­
ing and convicting petitioners “cannot fairly be said to be 
state action enforcing racial segregation in violation of the 
14th Amendment to the Federal Constitution” (App. p. 
13a).

But from the officer’s orders to depart to the final judg­
ment of the highest state court, this has been the state’s 
cause. Judicial acts of state courts are “state action” un-



13

der the Fourteenth Amendment. Shelley v. Kraemer, 334 
U. S. I.2 Equally clear, the Amendment reaches conduct of
the police. Cf. Monroe v. Pape, —-— U. S. ----- , 5 L. ed.
2d 492 (1961); Screws v. United States, 325 U. S. 91. See
also Baldwin v. Morgan,-----F. 2d------(5th Cir. No. 18280,
decided Feb. 17, 1961); Bonian v. Birmingham Transit Co., 
280 F. 2d 531, 533, note 1 (5th Cir. 1960); Valle v. Stengel, 
176 F. 2d 697 (3rd Cir. 1949), all of which condemn police 
enforcement of racial segregation in public places.

State action which enforces racial discrimination and 
segregation is condemned by the Fourteenth Amendment’s 
equal protection clause. Buchanan v. Warley, 245 U. S. 
60; Brown v. Board of Education, 347 U. S. 483; Shelley 
y. Kraemer, supra; Gayle v. Browder, 352 U. S. 903. More­
over, state inflicted racial discriminations, bearing no ra­
tional relation to a permissible governmental purpose, 
offend the concept of due process. Bolling v. Sharpe, 347 
IT. S. 497; Cooper v. Aaron, 358 IT. S. 1.

For the state to infect the administration of its criminal 
laws by using them to support lunch counter segregation

2 The subject of judicial action as “state action” is treated ex­
haustively in Part II of Chief Justice Vinson’s opinion which 
concludes:

“The short of the matter is that from the time of the adop­
tion of the Fourteenth Amendment until the present, it has 
been the consistent ruling of this Court that the action of the 
States to which the Amendment has reference, includes action 
of state courts and state judicial officials. Although in con­
struing the terms of the Fourteenth Amendment, differences 
have from time to time been expressed as to whether particular 
types of state action may be said to offend the Amendment’s 
prohibitory provisions, it has never been suggested that state 
court action is immunized from the operation of those pro­
visions simply because the act is that of the judicial branch 
of the state government.” (Id. at 18.)

In addition to the many cases cited in Shelley, supra, at 14-18, 
see also: Barrows v. Jackson, 346 U. S. 249; N.A.A.G.P. v. Alabama, 
357 U. S. 449, 463.



14

as an aspect of the “customs” of a segregated society, 
offends the salutary principle that criminal justice must 
be administered “without reference to consideration based 
upon race.” Gibson v. Mississippi, 162 U. S. 565, 591.

Indeed, when the Supreme Court of North Carolina held 
that the state judicial process “enforces the clear, legal 
right of racial discrimination of the owner” (App. p. 12a), 
it “construed this legislative enactment as authorizing dis­
criminatory classification based exclusively on color.” Cf. 
Mr. Justice Stewart, concurring in Burton v. Wilmington 
Parking Authority, 29 U. S. Law Wk. 4317, 4320. And, as 
Mr. Justice Frankfurter wrote, dissenting in the Burton 
case, “for a State to place its authority behind discrimina­
tory treatment based solely on color is indubitably a denial 
by a State of the equal protection of the laws, in violation 
of the Fourteenth Amendment.” (Ibid.)

The Fourteenth Amendment from the beginning has 
reached and prohibited all racial discrimination save that 
“unsupported by State authority in the shape of laws, cus­
toms, or judicial or executive proceedings,” and that which 
is “not sanctioned in some way by the State,” Civil 
Rights Cases, 109 U. S. 3, 17. “State action of every kind 
. . . which denies . . . the equal protection of the laws” 
is prohibited by the Amendment. Id. at 11; cf. Burton v. 
Wilmington Parking Authority; supra. The Fourteenth 
Amendment was “primarily designed” to protect Negroes 
against racial discrimination. Strauder v. West Virginia, 
100 U. ,S. 303, 307. “The words of the Amendment, it is 
true, are prohibitory, but they contain a necessary implica­
tion of a positive immunity, or right, most valuable to the 
colored race—the right to exemption from . . . legal dis­
criminations, implying inferiority in civil society, lessening 
the security of their enjoyment of the rights which others 
enjoy.. . . ” (Ibid.)



15

The fact that a property interest is involved does not 
imply a contrary result. It is the state’s power to enforce 
such interests that is in issue. For, as the Court said in 
Shelley v. Kraemer, 334 U. S. 1, 22:

“ • • - It would appear beyond question that the power 
of the State to create and enforce property interests 
must be exercised within the boundaries defined by the 
Fourteenth Amendment. Cf. Marsh v. Alabama, 326 
U. S. 501.”

Indeed, as the Court said in Marsh v. Alabama, 326 U. S. 
501, 505-506:

“We do not agree that the corporation’s property 
interests settle the question. The State urges in effect 
that the corporation’s right to control the inhabitants 
of Chickasaw is coextensive with the right of a home- 
owner to regulate the conduct of his guests. We can­
not accept that contention. Ownership does not always 
mean absolute dominion. The more an owner, for his 
advantage, opens up his property for use by the public 
in general, the more do his rights become circumscribed 
by the statutory and constitutional rights of those who 
use it.”

Here, certainly, is the case of “an owner, [who] for his 
advantage, opens up his property for use by the public in 
general.”

Petitioners contend that the states may not, under the 
Fourteenth Amendment, use their police3 and judiciary

3 The arresting officer took full responsibility for the arrest: 
“After Mr. Boger asked these defendants to leave, in my 

presence, and they refused to leave, that constituted trespass­
ing. He did not sign the warrants after the arrest. I did not 
have a warrant with ine when we made the arrest. Mr. Boger 
did not sign the warrant before we arrested them” (R. 25).



16

to enforce racial discrimination for a business open to the 
general public. Analyzing the totality of circumstances, 
with regard for the nature of the property interests as­
serted, and the state’s participation in their creation and 
enforcement no property interest of such an enterprise 
warrants departing from the Fourteenth Amendment’s 
clear stricture against racial discrimination. As this Court 
said recently in Burton v. Wilmington Parking Authority, 
29 U. S. Law Week 4317, 4318 (April 17, 1961):

“Because the virtue of the right to equal protection of 
the laws could lie only in the breadth of its applica­
tion, its constitutional assurance was reserved in terms 
whose imprecision was necessary if the right were to 
be enjoyed in the variety of individual-state relation­
ships which the Amendment was designed to embrace. 
For the same reason, to fashion and apply a precise 
formula for recognition of state responsibility under 
the Equal Protection Clause is ‘an impossible task’ 
which ‘this Court has never attempted.’ Kotch v. Pilot 
Comm’rs, 330 U. S. 552, 556. Only by sifting facts and 
weighing circumstances can the nonobvious involve­
ment of the State in private conduct be attributed its 
true significance.”

©
What is the “property right” involved here! S. H. Kress 

and Company did business in a commercial building opened 
to the public as a whole for the business advantage of the 
owner© There was no practice of selecting customers or 
limiting the classes of persons who may enter. The store 
was not, as some may be, limited to men, women, adults, 
white persons or Negroes. Negroes were accommodated 
throughout the building except the basement lunch counter 
(R. 22p No claim or interest in privacy was exercised by 
the owner in the customary use of this building.



17
6s-

The specific area in dispute, the lunch counter, was an 
integral part of this single commercial establishment, and 
like the entire premises was open to the public to do busi­
ness for profit. It was not severed for the owner’s private 
use; nor was it like a stockroom, employees’ working area, 
or a living space connected to a store.

(j? There is no issue concerning protection of property from 
use alien to its normal intended function. Petitioners 
sought only to purchase food. Whatever their motives (a 
frankly acknowledged desire to seek an end to racial dis­
crimination), their actions conformed to those of ordinary 
purchasers of food. Petitioners were not disorderly or 
offensive. The manager’s sole objection was that some of 
them were Negroes and the others accompanied Negroes. 
The sole basis of exclusion, ejection, arrest and conviction 
was race. The “crime” was being Negroes, or being with 
Negroes, at a “white only” lunch counter.

Moreover, the manager testified that the lunch counter 
was segregated “in the interest of public safety” (R. 22), 
and that company policy throughout the country was “de­
pendent upon the customs of the community” (R. 22). Ob­
viously then, the asserted right here is related to participa­
tion in, or conformity with, a community custom of segrega­
tion, the maintenance of a segregated society.

Therefore, the asserted “property” right was simply the 
right to discriminate solely on the basis of race, and accord­
ing to the customs of the community, in one integral part 
of a single commercial building open to the general public 
against persons otherwise welcome in all other parts of 
the premises. This, indeed, may be called a “property 
right” but as thus revealed, it is far from the “sacred, nat­
ural, inherent and inalienable” property right (App. p. 
11a) which the generalized language of the court below



18

held to be at stake. For as Mr. Justice Holmes wrote, dis­
senting in Lochner v. New York, 198 U. S. 45, 76, “ [g en ­
eral propositions do not decide concrete cases.”

The arbitrary quality of the “property right” supported 
by the state’s trespass law here is emphasized by the fact 
that the Kress Company required segregation only for 
customers who sit to eat; those standing to eat in the same 
store were served without any racial discrimination (R. 22). 
Cf. Burton v. Wilmington Parking Authority, supra, term­
ing exclusion of a Negro as offensive in a restaurant and 
his acceptance in other parts of the same building “irony 
amounting to grave injustice.” 29 U. S. L. Week 4317.

This “property interest” hardly need be protected in 
order for our form of constitutional government to survive 
(see App. pp. 13a, 15a). Obviously, for example, this type 
of “property interest” may be taken away by the states with­
out denying due process of law.4 Indeed, mere reference 
to the common law duty of common carriers and innkeepers 
demonstrates that an owner’s use of his property affects 
the nature of his dominion over it. Cf. Civil Rights Cases, 
109 U. S. 3, 25. This Court has said on several occasions, 
“that dominion over property springing from ownership is 
not absolute and unqualified.” Buchanan v. Warley, 245 
U. S. 60, 74; United States v. Willow River Power Co., 324 
U. S. 499, 510; Marsh v. Alabama, 326 U. S. 501, 506; 
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 417 (Jus­
tice Brandeis’s dissenting opinion). See Munn v. Illinois, 
94 U. S. 113; 5 Powell on Real Property 493 et seq. (1956).

4 See for example, Western Turf Asso. v. Greenberg, 204 U. S. 
359; cf. Bob-Lo Excursion Co. v. Michigan, 333 U.'S. 28; Railway 
Mail Ass’n v. Corsi, 326 U. S. 88; District of Columbia v. John R. 
Thompson Co., 346 U. S. 100.



19

This case does not involve a claim that the state must 
affirmatively provide a legal remedy against “private” 
racial discrimination. (Cf. Burton v. Wilmington Parking,. 
Authority, 29 U. S. Law Week 4317, April 17, 1961). 
Rather, petitioners assert only their immunity from 
criminal prosecution. Nor is there involved judicial en­
forcement of racial discrimination by trespass laws to 
protect an owner’s interest in maintaining privacy in the 
use of his property, such as a home or private club. Coun­
tervailing considerations that may be involved when a state 
acts to protect its citizens’ interest in their privacy, are not 
present. There is no issue as to whether state trespass laws 
may be used to enforce an exclusion for no reason. Finally, 
there is no claim that the Fourteenth Amendment bars 
enforcement of trespass laws generally.

Consequently, the case involves only this highly, im­
portant issue: Whether the state may use its executive 
and judicial machinery (particularly its criminal laws) to 
enforce 'racial discrimination for a business company that 
by its own choice and for its own advantage has opened 
its commercial property to the public. Petitioners submit 
that prior decisions of this Court demonstrate this ques­
tion should be answered No.

This case merits plenary review in this Court because of 
the substantial public importance of the questions relating 
to the extent to which a state may use its criminal laws to 
enforce racial segregation. As indicated to the Court in 
petitions for-certiorari filed and granted in Garner, Bris­
coe, and Hoston v. State of Louisiana, Nos. 617, 618 and 
619, October Term 1960, this problem is one which has 
arisen in many different communities and many state courts 
since the spring of 1960. See, Pollitt, “Dime Store Demon-



20

strations: Events and Legal Problems of the First Sixty 
Days,” 1960 Duke Law Journal 315. Beview of this ease 
will facilitate the proper disposition of many similar crim­
inal prosecutions.

II.

T h e  c rim in a l s ta tu te  a p p lie d  to  conv ic t p e ti tio n e rs  
gave n o  f a i r  a n d  effective w a rn in g  th a t  th e i r  ac tio n s  
w ere  p ro h ib i te d ;  p e ti t io n e rs ’ c o n d u c t v io la ted  n o  
s ta n d a rd  re q u ire d  by  th e  p la in  language  o f  th e  law ; 
th e re b y  th e ir  co n v ic tio n  o ffends th e  d u e  p ro cess  c lau se  
o f th e  F o u r te e n th  A m e n d m e n t a n d  con flic ts  w ith  p r in ­
c ip les  a n n o u n c e d  by  th is  C ou rt.

Petitioners were convicted under North Carolina Gen­
eral Statute, §14-134, which provides:

If any person after being forbidden to do so, shall 
go or enter upon the lands of another without a license 
therefor, he shall be guilty of a misdemeanor, and on 
conviction, shall be fined not exceeding fifty dollars, 
or imprisoned not more than thirty days.

Although the statute in terms prohibits only going on 
the land of another after being forbidden to do so, the 
Supreme Court of North Carolina has now construed the 
statute to prohibit also remaining on property when 
directed to leave following lawful entry. (See Opinion 
below, App. p. 12a). Stated another way, the statute 
now is applied as if “remain” were substituted for “enter.” 
Expansive judicial interpretation of the statute began by 
a statement in State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 
295 (1958) (a case in which defendants deliberately ig-



21

nored racial signs posted outside an ice cream parlor and 
also refused to leave upon demand),5 92 years after en­
actment of the law.6

The instant case is the first unambiguous holding under 
§14-134 which convicts defendants who went upon property 
with permission and merely refused to leave when directed.

Without a doubt petitioners and all Negroes were wel­
come within the. store—apart from the basement lunch 
counter. The arresting officer stated that “The only crime 
committed in my presence, as I saw, it was their failure 
and refusal to leave when they were ordered to do so by 
the Manager” (R. 26). There were no discriminatory signs 
outside the store (R. 23). No sign forbade Negroes and 
white persons who accompany Negroes to sit at the lunch 
counter; the sign said merely “Employees and Invited 
Guests Only” (R. 21). Whatever petitioners’ knowledge 
of the store’s racial policy as it had been practiced, there 
was no suggestion that they had ever been forbidden to 
go to the lunch counter and request service. The Court’s 
conclusory statement that defendants “entered” (tres­
passed) “after having been forbidden to do so” (App. 
19a), was simply a holding that' defendants’ acts in fail­
ing to leave when directed violated the statute.

5 In the Clyburn opinion, and here, the State court explained 
construction of §14-134 by reference to analogous construction of 
a statute prohibiting forcible entry and detainer (N. C. Gen. Stat. 
§14-126), which had been construed to apply to peaceful entry 
followed by forcible opposition to a later demand to leave. The 
Court held that “entry” was synonymous with “trespass” in both 
statutes (14-126 and 14-234). (14-134 does not use the word 
“entry” ; it states “go or enter upon”.)

The facts of the Clyburn case are summarized in the opinion 
below in this case (App. pp. 8a-9a).

6 The Statute was first enacted in 1866. North Carolina Laws 
Special Session, Jan., 1866, C. 60.



22

Absent the special expansive interpretation given §14- 
134 by the North Carolina Supreme Court the case would 
plainly fall within the principle of Thompson v. City of 
Louisville, 362 U. S. 199, and would be a denial of due 
process of law as a conviction resting upon no evidence 
of guilt. There was obviously no evidence that petitioners 
entered the premises “after having been forbidden to do 
so,” and the conclusion that they did rests solely upon the 
special construction of the law.

Under familiar principles the construction given a state’s 
statute by its highest court determines its meaning. How­
ever, petitioners submit that this statute has been so 
judicially expanded that it does not give a fair and ef­
fective warning of the acts it now prohibits. Rather, by 
expansive interpretation the statute now reaches more than 
its words fairly and effectively define, and as applied it 
therefore offends the principle that criminal laws must 
give fair and effective notice of the acts they prohibit.

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

Construing and applying federal statutes this Court has 
long adhered to the principle expressed in Pierce v. United 
States, 314 U. S. 306, 311:

. . . judicial enlargement of a criminal act by inter­
pretation is at war with a fundamental concept of 
the common law that crimes must be defined with ap­
propriate definiteness. Cf. Lanzetta v. New Jersey, 306 
U. S. 451, and cases cited.



23

In Pierce, supra, the Court held a statute forbidding false 
personation of an officer or employee of the United States 
inapplicable to one who had impersonated an officer of the 
T. V. A. Similarly in United States v. Cardiff, 344 U. S. 
174, this Court held too vague for judicial enforcement a 
criminal provision of the Federal Food, Drug, and Cos­
metic Act which made criminal a refusal to permit entry 
or inspection of business premises “as authorized by” an­
other provision which, in turn, authorized certain officers 
to enter and inspect “after first making request and ob­
taining permission of the owner.” The Court said in Car­
diff, at 344 U. S. 174, 176-177:

The vice of vagueness in criminal statutes is the 
treachery they conceal either in determining what per­
sons are included or what acts are prohibited. Words 
which are vague and fluid (cf. United States v. L. 
Cohen Grocery Co., 255 U. S. 81) may be as much of 
a trap for the innocent as the ancient laws of Caligula. 
We cannot sanction taking a man by the heels for 
refusing to grant the permission which this Act on 
its face apparently gave him the right to withhold. 
That would be making an act criminal without fair 
and effective notice. Cf. Herndon v. Lowry, 301 U. S. 
242.

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

It would be dangerous, indeed, to carry the prin­
ciple, that a case which is within the reason or mis­
chief of a statute, is within its provisions, so far as 
to punish a crime not enumerated in the statute, be-



24

cause it is of equal atrocity, or of kindred character, 
with those which are enumerated (Id. 18 (J. S. (5 
Wheat.) at 96.)

The cases discussed above involved federal statutes con­
cerning which this Court applied a rule of construction 
closely akin to the constitutionally required rule of fair 
and effective notice. This close relationship is indicated 
by the references to cases decided on constitutional grounds. 
The Pierce opinion cited for comparison Lametta v. New 
Jersey, supra, and “cases cited therein,” while Cardiff 
mentions United States v. L. Cohen Grocery Co., supra, 
and Herndon v. Lowry, supra.

On its face the North Carolina trespass statute warns 
against a single act, i.e., going or entering upon the land 
of another “after” being forbidden to do so. “After” con­
notes a sequence of events which by definition excludes 
going on or entering property “before” being forbidden. 
The sense of the statute in normal usage negates its ap­
plicability to petitioners’ act of going on the premises with 
permission and later failing to leave when directed.

But by judicial interpretation “enter” was held syn­
onymous with “trespass,” and, in effect, also with “remain.” 
Here a legislative casus omissus was corrected by the 
court. But as Mr. Justice Brandeis observed in United 
States v. Weitzel, supra at 543, a casus omissus while not 
unusual, and often undiscovered until much time has 
elapsed, does not justify extension of criminal laws by 
reference to legislative intent.

Moreover, that the indictments specified both that peti­
tioners had entered after having been forbidden and also 
that they refused to leave after being ordered to do so, 
does not correct the unfairness inherent in the statute’s



25

failure specifically to define a refusal to leave as an of­
fense. As this Court said in Lametta v. New Jersey, 
swpra:

It is the statute, not the accusation under it, that 
prescribes the rule to govern conduct and warns 
against transgression. See Stromberg v. California, 
283 U. S. 359, 368; Lovell v. Griffin, 303 U. S. 444.

Petitioners do not contend for an unreasonable degree 
of specificity in legislative drafting. Some state trespass 
laws have specifically recognized as distinct prohibited 
acts the act of going upon property after being forbidden 
and the act of remaining when directed to leave.7

Converting by judicial construction the common English 
word “enter” into a word of art meaning “trespass” or 
“remain,” has transformed the statute from one which 
fairly warns against one act into a law which fails to 
apprise those subject to it “in language that the common 
word will understand, of what the law intends to do if a 
certain line is passed” (McBoyle v. United States, 283 U. S. 
27). Nor does common law usage of the word “enter”

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



26

support the proposition that it is synonymous with “tres­
pass” or “remaining.” While “enter” in the sense of going 
on and taking possession of land is familiar (Ballantine, 
“Law Dictionary”, (2d Ed. 1948), 436; “Black’s Law 
Dictionary” (4th Ed. 1951), 625), its use to mean “re­
maining on land and refusing to leave it when ordered 
off” is novel.

Judicial construction often has cured criminal statutes 
of the vice of vagueness, but this has been construction 
which confines, not expands, statutory language. Compare 
Chaplinsky v. New Hampshire, 315 U. S. 568, with Herndon 
v. Lowry, 301 U. S. 242.

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

III.

The decision below conflicts with decisions of this 
Court securing the Fourteenth Amendment right to 
freedom of expression.

Petitioners were engaged ip the exercise of free ex­
pression by means of verbal requests to the management 
and the requests implicit in seating themselves at the 
counter for nonsegregated lunch counter service. Their 
expression (asking for service) was entirely appropriate 
to the time and place in which it occurred. Certainly the 
invitation to enter an establishment carries with it the 
right to discuss and even argue with the proprietor con­
cerning terms and conditions of service so long as no 
disorder or obstruction of business occurs.



27

Petitioners did not shout, obstruct business, carry picket­
ing signs, give out handbills, or engage in any conduct 
inappropriate to the time, place and circumstances. And, 
as is fully elaborated above in Part I of this petition, there 
was no invasion of privacy involved in this case, since 
the lunch counter was an integral part of commercial prop­
erty open up to the public.

This Court and other courts on numerous occasions have 
held that the right of free speech is not circumscribed by 
the mere fact that it occurs on private property. The ex­
istence of a property interest is but one circumstance to 
be considered among many. In Marsh v. Alabama, supra, 
for example, this Court overturned the trespass conviction 
of Jehovah’s Witnesses who went upon the premises of a 
company town to proselytize holding that such arrest and 
conviction violated the Fourteenth Amendment. In Re­
public Aviqtion Corp. v. National Labor Relations Board, 
324 U. S. 793, the Court upheld the validity of the National 
Labor Relations Board’s ruling that lacking special cir­
cumstances that might make such rules necessary, employer 
regulations forbidding all union solicitation on company 
property regardless of whether the workers were on their 
own or company time, constituted unfair labor practices.8

8 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. 
(“Our attention has not been called to any case under the Wagner 
Act or its successor in which it has been held that an employer can 
prohibit either solicitation or distribution of literature by em­
ployees simply because the premises are company property.

Employees are lawfully within the plant, and nonworking time 
is their own time. If Section 7 activities are to be prohibited, 
something more than mere ownership and control must be shown.”) 

Compare N. L. R. B. v. Pansteel Metal Corp., 306 U.S. 240, 252 
(employees seized plant; discharge held valid: “high-handed pro­
ceeding without shadow of legal right”).



28

In Martin v. Struthers, 319 U. S. 141, this Court held 
unconstitutional an ordinance which made unlawful ringing 
doorbells of residence for the purpose of distributing hand­
bills, upon considering the free speech values involved— 
“[djoor to door distribution of circulars is essential to 
the poorly financed causes of little people,” at p. 146— 
and that the ordinance precluded individual private house­
holders from deciding whether they desired to receive the 
message. But effecting “an adjustment of constitutional 
rights in the light of the particular living conditions of the 
time and place”, Breard v. Alexandria, 341 U. S. 622, 626, 
the Court, assessing a conviction for door-to-door commer­
cial solicitation of magazines, contrary to a “Green River” 
ordinance, concluded that the community “speak[ing] for 
the citizens,” 341 IT. S. 644, might convict for crime in the 
nature of trespass after balancing the “conveniences be­
tween some householders’ desire for privacy and the pub­
lisher’s right to distribute publications in the precise way 
that those soliciting for him think brings the best results.” 
341 U. S. at 644. Because, among other things, “ [subscrip­
tion may be made by anyone interested in receiving the 
magazines without the annoyances of house to house can­
vassing,” ibid., the judgment was affirmed.

Similarly, following an appraisal of the speech and 
property considerations involved, a Baltimore City Court, 
State of Maryland v. Williams, 44 Lab. Eel. Ref. Man. 
2357, 2361 (1959), has on Fourteenth Amendment and 
Labor Management Relations Act grounds, decided that 
pickets may patrol property within a privately owned shop­
ping center. See also People v. Barisi, 193 Misc. 934, 86 
N. Y. S. 2d 277, 279 (1948), which held that picketing within 
Pennsylvania Station was not trespass; the owners opened 
it to the public and their property rights were “circum­
scribed by the constitutional rights of those who use it” ;



29

Freeman v, Retail Clerks Union, Washington Superior 
Court, 45 Lab. Eel. Ref. Man. 2334 (1959), which denied 
relief to a shopping center owner against picketers on his 
property, relying on the Fourteenth Amendment.

The liberty secured by the due process clause of the Four­
teenth Amendment insofar as it protects free expression 
is not limited to verbal utterances, though petitioners here 
expressed themselves by speech. The right comprehends 
picketing, Thornhill v. Alabama, 310 U. S. 88; free distri­
bution of handbills, Martin v. Struthers, 319 U. S. 141; 
display of motion pictures, Burstyn v. Wilson, 343 U. S. 
495; joining of associations, N. A. A. C. P. v. Alabama, 357 
U. S. 449; the display of a flag or symbol, Stromberg v. 
California, 283 U. S. 359. What has become known as a 
“sit in” is a different but obviously well understood symbol, 
a meaningful method of communication and protest.

In the circumstances of this case, the only apparent state 
interest being preserved was that of maintaining the man­
agement’s rights to exclude Negroes from the lunch counter. 
The management itself sought nothing more. But as Justice 
Holmes held in Schenck v. United States, 249 U. S. 47, 52, 
the question is “whether the words used are used in such 
circumstances and are of such a nature as to create a clear 
and present danger that they will bring about the sub­
stantive evil” that the state has a right to prevent.

The state has no interest in preserving such discrimina­
tion and certainly has no valid interest in suppressing 
speech which is entirely appropriate to the time and place 
and does not interfere with privacy, when the speech urges 
an end to racial discrimination imposed in accordance with 
the customs of the community.



30

CONCLUSION

W h e re fo re , f o r  th e  fo re g o in g  rea so n s , i t  is re sp e c t­
fu lly  su b m itte d  th a t  th e  p e ti t io n  f o r  a w rit o f  c e r t io ra r i
sh o u ld  be  g ra n te d .

Respectfully submitted,

T hurgood  M arshall  
J ack  G r e e n b e r g  
J a m es  M . N abrit , III 

10 Columbus Circle 
New York 19, New York

L. C. B erry , J r .
W il l ia m  A. M a r sh , J r .
F. B. M cK issic k

C. 0. P earson  
W . G. P earson

M . H u g h  T h o m pso n  
Durham, North Carolina

Attorneys for Petitioners

E lwood H. C h iso l m  
W il l ia m  T. C o lem a n , J r. 
L ouis  H. P ollak  
Ch a r les  A. R e ic h  
S pottswood  W . R o b in so n , III

Of Counsel



Opinion by Mr. Justice Mallard

SUPREME COURT OF NORTH CAROLINA 
Fall Term 1960 

No. 654—Durham

S tate

.Jo h n  T hom as  A v e n t  

S tate

L acy Carrole S tr eeter  

S tate

F r a n k  M cG il l  C olem an  

S tate  

—v.—
S h ir l e y  M ae B row n  

S tate

D onovan  P h il l ip s  

S tate

C a llis  N apolis B row n

S tate

—v.—
J oan H arris N elson



2a

Appeal by defendants from Mallard, J 30 June 1960 
Criminal Term of Durham.

Seven criminal actions, based on seven separate indict­
ments, which were consolidated and tried together.

The indictment in the case of defendant John Thomas 
Avent is as follows: “The Jurors for the State upon their 
oath present, That John Thomas Avent, late of the County 
of Durham, on the 6th day of May, in the year of our Lord 
one thousand nine hundred and sixty, with force and arms, 
at and in the county aforesaid, did unlawfully, willfully 
and intentionally after being forbidden to do so, enter upon 
the land and tenement of S. H. Kress and .Company store 
located at 101-103 W. Main Street in Durham, N. C., said 
S. H. Kress and Company, owner, being then and there in 
actual and peaceable possession of said premises, under 
the control of its manager and agent, W. K. Boger, who 
had, as agent and manager, the authority to exercise his 
control over said premises, and said defendant after being 
ordered by said W. K. Boger, agent and manager of said 
owner, S. H. Kress and Company, to leave that part of the 
said store reserved for employees and invited guests, will­
fully and unlawfully refused to do so knowing or having 
reason to know that he the said John Thomas Avent, 
defendant, had no license therefor, against the form of the 
statute in such case made and provided and against the 
peace and dignity of the State.”

The other six indictments are identical, except that each 
indictment names a different defendant.

The State’s evidence tends to show the following facts:
On 6 May 1960 S. H. Kress and Company was operating 

a general variety store on Main Street in the city of Dur­
ham. Its manager, W. K. Boger, had complete control and 
authority over this store. The store has two selling floors



3a

and three stockroom floors, and is operated to make a 
profit. On the first floor the store has a stand-up counter, 
where it serves food and drinks to Negroes and White 
people. The luncheonette department serving food is in 
the rear of the basement on the basement floor. On 6 May 
1960 S. H. Kress and Company had iron railings, with 
chained entrances, separating the luncheonette department 
from other departments in the store, and had signs posted 
over that department stating the luncheonette department 
was operated for employees and invited guests only. Cus­
tomers on that date in the luncheonette department were 
invited guests and employees.

On 6 May 1960 these seven defendants, five of whom are 
Negroes and two of whom (Joan Harris Nelson and Frank 
McGill Coleman) are members of the White race, were in 
the store. Before the seven defendants seated themselves 
in the luncheonette department, and after they seated them­
selves there, W. K. Boger had a conversation with each one 
of them. He told them that the luncheonette department 
was open for employees and invited guests only, and asked 
them not to take seats there. When they seated themselves 
there, he asked them to leave. They refused to leave until 
after they were served. He called an officer of the city 
police department. The officer asked them to leave. They 
did not do so, and he arrested them, and charged them with 
trespassing. The seven defendants were not employees of 
the store. They had no authority or permission to be in the 
luncheonette department.

On cross-examination W. K. Boger testified in substance: 
S. H. Kress and Company has 50 counters in the store, 
and it accepts patronage of Negroes at those 50 counters. 
White people are considered guests. Had the two White 
defendants come into the store on 4 May 1960, I would not 
have served them in the luncheonette department for the



4a

reason they had made every effort to boycott the store. 
He would have served the White woman defendant, but he 
asked her to leave when she gave her food to a Negro. The 
object of operating our store in Durham is definitely to 
make a profit. It is the policy of our store to operate all 
counters dependent upon the customs of the community. It 
is our policy in Durham to refuse to serve Negroes at the 
luncheonette department downstairs in our seating arrange­
ment. It is also our policy there to refuse to serve White 
people in the company of Negroes. We had signs all over 
the luncheonette department to the effect that it was open 
for employees and invited guests.

Captain Cannady of the Durham Police Department tes­
tified in substance: As a result of a call to the department 
he went to S. H. Kress and Company’s store. He saw on 
6 May 1960 all the defendants, except Coleman, seated at 
the counter in the luncheonette department. He heard 
W. K. Boger ask each one of them to leave, and all refused. 
He asked them to leave, and told them they could either 
leave or be arrested for trespassing. They refused to 
leave, and he charged them with trespassing. He knew 
W. K. Boger was manager of the store. He makes an 
arrest when an offense is committed in his presence, and 
the defendants were trespassing in his presence.

When the State rested its case, all seven defendants tes­
tified. The five Negro defendants testified in substance: 
All are students at North Carolina College for Negroes in 
Durham. Prior to 6 May 1960, Negroes, including some 
of the Negro defendants, had been refused service by S. H. 
Kress and Company in its luncheonette department. All 
are members of a student organization, which met on the 
night of 5 May 1960, and planned to go the following day 
to Kress’ store, make a purchase, and then to go to the 
luncheonette department, take seats, and request service.



5a

The following day the five Negro defendants did what they 
planned.

The White woman defendant, Joan Harris Nelson, is a 
student at Duke University. Prior to 6 May 1960 she had 
not attended the meetings at the North Carolina College 
for Negroes for the purpose of securing service at the 
luncheonette department of the Kress store, though she 
has attended some of the meetings since then. She had 
been on the picket lines in front of the store. On 6 May 
1960 she went into the Kress store, bought a bail-point pen, 
went to the luncheonette department, and took a seat. She 
was served, and while eating she offered to buy some food 
for Negroes from the North Carolina College, who were 
sitting on each side of her. When she was served food, 
no Negroes were in the luncheonette department. Mr. 
W. K. Boger asked her to leave because she was not in­
vited, and was antagonizing customers. She did not leave, 
and was arrested.

The White male defendant, Prank McGill Coleman, is a 
student at Duke University. On 6 May 1960 he went into 
the Kress store, bought a mother’s day card, joined his 
friend, Bob Markham, a Negro, and they went to the lunch­
eonette department, and seated themselves. He asked for 
service, and was refused. Mr. W. K. Boger asked them to 
leave, telling them they were not invited guests, and he 
refused to do so, and was arrested. Prior to this date he 
had carried signs in front of the Kress store and other 
stores discouraging people to trade with them.

Some, if not all, of the defendants had been engaged 
previously in picketing the Kress store, and in urging a 
boycott of it, unless their demands for service in the lunch­
eonette department were acceded to.

Jury Verdict: All the defendants, and each one of them, 
are guilty as charged.



6a

From judgments against each defendant, each defendant 
appeals.

T. W. B ruton, Attorney General, and R a l p h  
M oody, Assistant Attorney General, for the 
State.

W il l ia m  A. M a r sh , J r., M . H u g h  T h o m p s o n , 
C. 0. P earson , W. G. P earson , F. B . Mc- 
K is s ic k  and L. C. B erry , J r., for Defen­
dants-Appellants.

Parker, J. Each defendant—five of whom are Negroes 
and two members of the White race—before pleading to 
the indictment against him or her made a motion to quash 
the indictment. The court overruled each motion, and each 
defendant excepted. The motions were made in apt time. 
S. v. Perry, 248 N. C. 334, 103 S. E. 2d 404; Carter v Texas, 
177 IT. S. 442, 44 L. Ed. 839; 27 Am. Jur., Indictments and 
Information, §141.

At the close of all the evidence each defendant made a 
motion for judgment of compulsory nonsuit. Each motion 
was overruled, and each defendant excepted.

S. H. Kress and Company is a privately owned corpora­
tion, and in the conduct of its store in Durham is acting 
in a purely private capacity to make a profit for its share­
holders. There is nothing in the evidence before us, or in 
the briefs of counsel to suggest that the store building in 
which it operates is not privately owned. In its basement 
in the luncheonette department it operates a restaurant. 
“While the word ‘ restaurant’ has no strictly defined mean­
ing, it seems to be used indiscriminately as a name for all 
places where refreshments can be had, from a mere eating- 
house and cook-shop, to any other place where eatables 
are furnished to be consumed on the premises. Citing 
authority. It has been defined as a place to which a person



7a

resorts for the temporary purpose of obtaining a meal or 
something to eat.” S. v. Shoaf, 179 N. C. 744. 102 S. E. 705. 
To the same effect see, 29 Am, Jur., (1960), Innkeepers, 
§9, p. 12. In Richards v. Washington F. $  M. Ins. Co., 60 
Mich. 420, 27 N. W. 586, the Court said: “A ‘restaurant’ 
has no more defined meaning, (than the English word 
shop), and is used indiscriminately for all places where 
refreshments can be had, from the mere eating-house or 
cookshop to the more common shops or stores, where the 
chief business is vending articles of consumption and con­
fectionery, and the furnishing of eatables to be consumed 
on the premises is subordinate.” Quoted with approval in 
Michigan Packing Co. v. Messaris, 257 Mich. 422, 241 N. W. 
236, and restated in substance in 43 C. J. S., Innkeepers, 
§1, subsection b, p. 1132.

No statute of North Carolina requires the exclusion of 
Negroes and of White people in company with Negroes 
from restaurants, and no statute in this State forbids 
discrimination by the owner of a restaurant of people on 
account of race or color, or of White people in company 
with Negroes. In the absence of a statute forbidding dis­
crimination based on race or color in restaurants, the rule 
is well established that an operator of a privately owned 
restaurant privately operated in a privately owned build­
ing has the right to select the clientele he will serve, and 
to make such selection based on color, race, or White 
people in company with Negroes or vice versa, if he so 
desires. He is not an innkeeper. This is the common law. 
8. v. Clyhurn, 247 N. C. 455, 101 S. E. 2d 295; Williams v. 
Howard Johnson’s Restaurant, 268 F. 2d 845; Slack v. 
Atlantic White Tower System, Inc., 181 F. Supp. 124, af­
firmed by the U. S. Court of Appeals for the 4th Circuit
27 December 1960,-----F. 2d------ ; Alpaugh v. Wolverton,
184 Va. 943, 36 S. E. 2d 906; Wilmington Parking Author­
ity v. Burton (Del.), 157 A. 2d 894; Nance v. Mayflower



8a

Restaurant, 106 Utah 517, 150 P. 2d 773. See 10 Am. Jur., 
Civil Rights, §21; Powell v. Uts, 87 F. Supp. 811; and An­
notation 9 Am. & Eng. Ann. Cas. 69—statutes securing 
equal rights in places of public accommodation. We have 
found no case to the contrary after diligent search, and 
counsel for defendants have referred us to none.

In Alpaugh v. Wolverton, supra, the Court said: “The 
proprietor of a restaurant is not subject to the same duties 
and responsibilities as those of an innkeeper, nor is he 
entitled to the privileges of the latter. Citing authority. 
His rights and responsibilities are more like those of a 
shopkeeper. Citing authority. He is under no common-law 
duty to serve every one who applies to him. In the absence 
of statute, he may accept some customers and reject others 
on purely personal grounds. Citing authority.”

In Boynton v. Virginia, 5 December 1960, —— IJ. 8 .----- ,
----- L. Ed. ------ , the Court held that a Negro passenger
in transit on a paid Interstate Trailways’ journey had a 
right to food service under the Interstate Commerce Act 
in a Bus Terminal Restaurant situate in the Bus Station, 
and operated under a lease by a company not affiliated 
with the Trailways Bus Company. Then the Court in the 
majority opinion deliberately stated: “We are not hold­
ing that every time a bus stops at a wholly independent 
roadside restaurant the Interstate Commerce Act requires 
that restaurant service be supplied in harmony with the 
provisions of that Act.”

In 8. v. Clyburn, supra, the defendants were tried on 
similar warrants charging that each defendant unlawfully 
entered upon the land of L. A. Coletta and C. V. Porcelli 
after being forbidden to do so and did “unlawfully refuse 
to leave that portion of said premises reserved for mem­
bers of the White Race knowing or having reason to know 
that she had no license therefor.” Coletta and Porcelli 
did business under the trade name of Royal Ice Cream



9a

Company retailing ice cream and sandwiches. The build­
ing in which they did business is separated by partition 
into two parts. One part has a door opening on Dowd 
Street, the other a door opening on Roxboro Street. Each 
portion is equipped with booths, a counter and stools. Over 
the Dowd Street door is a large sign marked Colored, over 
the Roxboro Street door is a similar sign marked White. 
Sales are made to different races only in the portions of 
the building as marked. Defendants, all Negroes, went 
into the building set apart for White patrons, and re­
quested service. Coletta asked them to leave. They re­
fused to do so, and they were arrested by a police officer 
of the city of Durham. All were convicted, and from judg­
ments imposed, all appealed to the Supreme Court. We 
found No Error in the trial. The Court in its opinion said: 
“The right of an operator of a private enterprise to select 
the clientele he will serve and to make such selection based 
on color, if he so desires, has been repeatedly recognized 
by the appellate courts in this nation. Madden v. Queens 
County Jockey Club, 72 N. E. 2d 697 (N. Y .); Terrell Wells 
Swimming Pool v. Rodriguez, 182 S. W. 2d 824 (Tex.); 
Booker v. Grand Rapids Medical College, 120 N. W. 589 
(Mich.); Younger v. Judah, 19 S. W. 1109 (Mo.); Goff v. 
Savage, 210 P. 374 (Wash.); De La Ysla v. Publix Theatres 
Corporation, 26 P. 2d 818 (Utah); Brown v. Meyer Sani­
tary Milk Co., 96 P. 2d 651 (Kan.); Horn v. Illinois Cent. 
R. Co., 64 N. E. 2d 574 (111.); Coleman v. Middlestaff, 
305 P. 2d 1020 (Cal.); Fletcher v. Coney Island, 136 N. E. 
2d 344 (Ohio); Alpaugh v. Wolverton, 36 S. E. 2d 906 
(Va.). The owner-operator’s refusal to serve defendants, 
except in the portion of the building designated by him, 
impaired no rights of defendants.”

In an Annotation in 9 A. L. R., p. 379, it is said: “It 
seems to be well settled that, although the general public



10a

have an implied license to enter a retail store, the pro­
prietor is at liberty to revoke this license at any time as 
to any individual, and to eject such individual from the 
store if he refuses to leave when requested to do so/’ 
The Annotation cites cases from eight states supporting 
the statement. See to the same effect, Brookside-Pratt 
Min. Co. v. Booth, 211 Ala. 268,100 So. 240, 33 A. L. E. 417, 
and Annotation in 33 A. L. R. 421.

This is said by Holmes, J., for the Court in Terminal 
Taxicab Co. v. Kuts, 241 U. S. 252, 256, 60 L. Ed. 984, 987, 
a suit to restrain the Public Utilities Commission from 
exercising jurisdiction over the business of a taxicab com­
pany: “It is true that all business, and for the matter of 
that, every life in all its details, has a public aspect, some 
bearing upon the welfare of the community in which it is 
passed. But however it may have been in earlier days as 
to the common callings, it is assumed in our time that an 
invitation to the public to buy does not necessarily entail 
an obligation to sell. It is assumed that an ordinary shop 
keeper may refuse his wares arbitrarily to a customer whom 
he dislikes. . . ”

None of the cases cited in defendants’ brief are ap­
plicable to the situation which obtains in the instant cases. 
For instance, Cooper v. Aaron, 358 U. S. 1, 3 L. Ed. 2d 
5—public education; Boman v. Birmingham Transit Co., 
280 F. 2d 531—public transportation; Valle v. Stengel, 
176 F. 2d 697—a case in respect to an amusement park in 
the State of New Jersey, which State has a statute, R. S. 
10: 1-3, N. J. S. A., providing that no proprietor of a 
place of public resort or amusement. “ . . . shall directly 
or indirectly refuse, withhold from, or deny to, any per­
son any of the accommodations, advantages, facilities or 
privileges thereof . . .  on account of race, creed or color,” 
R. S. 10: 1-6, N. J. S. A.



11a

“The right of property is a fundamental, natural, in­
herent, and inalienable right. It is not ex gratia from the 
legislature, but ex debito from the Constitution. In fact, it 
does not owe its origin to the Constitutions which protect it, 
for it existed before them. It is sometimes characterized 
judicially as a sacred right, the protection of which is one 
of the most important objects of government. The right 
of property is very broad and embraces practically all 
incidents which property may manifest. Within this right 
are included the right to acquire, hold, enjoy, possess, use, 
manage, . . . property.” 11 Am. Jur., Constitutional Law, 
§335.

G. S. 14-134 has been the statute law of this State for 
nearly a hundred years. It reads: “If any person after 
being forbidden to do so, shall go or enter upon the lands 
of another, without a license therefor, he shall be guilty 
of a misdemeanor, and on conviction, shall be fined not 
exceeding fifty dollars, or imprisoned not more than thirty 
days.”/ Then follows a proviso as to obtaining a license 
to go upon land of another to look for estrays. This statute 
is color blind. Its sole purpose is to protect people from 
trespassers on their lands. It is concerned with only three 
questions. One, was the land in either the actual or con­
structive possession of another? Two, did the accused in­
tentionally enter upon the land of another? Three, did 
the accused so enter upon the land of another after being 
forbidden to do so by the person in possession? 8. v. Baker, 
231 N. C. 136, 56 S. E. 2d 424.

G. S. 14-126 has been the statute law of this State for 
many years, and reads: “No one shall make entry into 
any lands and tenements, or term for years, but in case 
where entry is given by law; and in such case, not with 
strong hand nor with multitude of people, but only in a 
peaceable and easy manner; and if any man do the con­
trary, he shall be guilty of a misdemeanor.” This statute



12a

is also color blind. “Its purpose is to protect possession 
only.” 8. v. Balter, supra. We have repeatedly held in 
applying G. S. 14-126 that a person who remains on the 
land of another after being directed to leave is guilty of 
a wrongful entry even though the original entrance was 
peaceful. The word “entry” as used in each of these stat­
utes is synonymous with the word “trespass.” 8. v. Cly- 
burn, supra.

The officer of the city of Durham had a right and duty 
to arrest all seven defendants in the luncheonette depart­
ment of the Kress store, because all of them were com­
mitting misdemeanors in his presence. G. S. 15-41. There 
is no merit in their contention that this constituted State 
action denying them rights guaranteed to them by the 
14th Amendment to the Federal Constitution and by Article 
I, §17, of the State Constitution. 8. v. Clyburn, supra.

Defendants in essence contend that the indictments 
should be quashed and the cases nonsuited because the 
judicial process here constitutes State action to enforce 
racial segregation in violation of their rights under the due 
process clause and under the equal protection of the laws 
clause of the 14th Amendment, to the Federal Constitution, 
and in violation of their rights under Article I, §17, of the 
State Constitution, and further that Gf. S. 14-134 and G. S. 
14-126 are being unconstitutionally applied for the same 
purpose. Defendants misconceive the purpose of the 
judicial process here. It is to punish defendants for un­
lawfully and intentionally trespassing upon the lands of 
S. H. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner. There is no merit to 
this contention.

The Court said in Shelley v. Kraemer, 334 U. S. 1, 92 
L. Ed. 1161, 3 A. L. R. 2d 441: “Since the decision of this 
Court in the Civil Rights Cases, 109 US 3, 27 L ed



13a

835, 3 S Ct 18 (1833), the principle has become firmly 
embedded in our constitutional law that the action in­
hibited by the first section of the Fourteenth Amendment 
is only such action as may fairly be said to be that of the 
States. That Amendment erects no shield against merely 
private conduct, however discriminatory or wrongful.” 
This interpretation has not been modified: Collins v. 
Handyman, 341 U, S. 651, 95 L. Ed. 1253; District of Colum­
bia v. Thompson Co., 346 U. S. 100, 97 L. Ed. 1480.

Private rights and privileges in a peaceful society living 
under a constitutional form of government like ours are 
inconceivable without State machinery by which they are 
enforced. Courts must act when parties apply to them— 
even refusal to act is a positive declaration of law—, and, 
hence, there is a fundamental inconsistency in speaking of 
the rights of an individual who cannot have judicial recog­
nition of his rights. All the State did in these cases was 
to give or create a neutral legal framework in which S. H. 
Kress and Company could protect its private property 
from trespassers upon it in violation of G. S. 14-134 and 
G. S. 14-126. There is a recognizable difference between 
State action that protects the plain legal right of a per­
son to prevent trespassers from going upon his land after 
being forbidden, or remaining upon his land after a de­
mand that they leave, even though it enforces the cleared 
legal right of racial discrimination of the owner, and State 
action enforcing covenants restricting the use or occupancy 
of real property to persons of the Caucasian race. The 
fact that the State provides a system of courts so that 
S. H. Kress and Company can enforce its legal rights 
against trespassers upon its private property in violation 
of G. S. 14-134 and G. S. 14-126, and the acts of its judicial 
officers in their official capacities, cannot fairly be said 
to be State action enforcing racial segregation in violation 
of the 14th Amendment to the Federal Constitution. Such



14a

judicial process violates no rights of the defendants 
guaranteed to them by Article I, §17, of the State Con­
stitution. To rule as contended by defendants would mean 
that S. H. Kress and Company could enforce its rights 
against White trespassers alone, but not against Negro 
trespassers and White and Negro trespassers in company. 
Surely, that would not be an impartial administration of 
the law for it would be a denial to the White race of the 
equal protection of the law. If a land owner or one in 
possession of land cannot protect his natural, inherent and 
constitutional right to have his land free from unlawful 
invasion by Negro and White trespassers in a case like this 
by judicial process as here, because it is State action, then 
he has no other alternative but to eject them with a gentle 
hand if he can, with a strong hand if he must. Annotation 
9 A. L. R., p. 379 quoted above; 4 Am. Jur., Assault and 
Battery, §76, p. 167; 6 C. J. S., Assault and Battery, §20, 
(2). This is said in 4 Am. Jur., Assault and Battery, §76, 
p. 168: “Even though the nature of the business of the 
owner of property is such as impliedly to invite to his 
premises persons seeking to do business with him, he may, 
nevertheless, in most instances refuse to allow a certain 
person to come on his premises, and if such person does 
thereafter enter his premises, he is subject to ejection al­
though his conduct on the particular occasion is not wrong­
ful.” It is further said in the same work, same article, 
§78: “The right lawfully to eject trespassers is not limited 
to the owner or occupier of the premises, but may be 
exercised by his agent in any case where the principal 
might exercise the right.” The motive of the owner of 
land in ejecting trespassers from his premises is immaterial 
so long as he uses no more force than is necessary to ac­
complish his purpose. 6 C. J. S., Assault and Battery, p. 
821. White people also have constitutional rights as well 
as Negroes, which must be protected, if our constitutional



15a

form of government is not to vanish from the face of the 
earth.

This is said in an article designated “The Meaning of 
State Action” by Thomas P. Lewis, Associate Professor 
of Law, University of Kentucky, and appearing in Colum­
bia Law Review, December 1960, Vol. 60, No. 8, in note 
134, page 1122: “State court recognition of the restau­
rateur’s private discrimination could be in the form of 
denial of any action against him by an aggrieved party. 
A related issue is the ability of the state to enforce through 
arrest and an action for trespass the discrimination of the 
private owner. None of the interpretations of . Shelley 
(■Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161) of which 
the writer is aware, except Professor Ming’s, supra note 
92 (Racial Restrictions and the Fourteenth Amendment: 
The Restrictive Covenant Cases, 16 U. Chi. L. Rev. 203 
(1949)) would extend it to this kind of case.”

In Slack v. Atlantic White Tower System, Inc., supra, 
the Court said: “No doubt defendant might have had plain­
tiff arrested if she had made a disturbance or remained 
at a table too long after she had been told that she would 
only be sold food to carry out to her car. But that implied 
threat is present whenever the proprietor of a business 
refuses to deal with a customer for any reason, racial or 
other, and does not make his action state action or make 
his business a state agency.”

In S. v. Cooke, 248 N. C. 485, 103 S. E. 2d 846, the de­
fendants wTere convicted and sentenced on a charge that 
they did “unlawfully and willfully enter and trespass upon 
the premises of Gillespie Park Club, Inc., after having 
been forbidden to enter said premises.” We found no er­
ror. Their appeal was dismissed by a divided court by 
the United States Supreme Court. Wolfe v. North Caro­
lina, 364 U. S. 177, 4 L. Ed. 2d 1650. In neither the major­
ity opinion nor in the minority opinion was the question



16a

of State action referred to. It seems that if the United 
States Supreme Court had thought that the arrest and 
prosecution was State action, it would have reversed our 
decision. It seems further that the action of that Court 
in dismissing the appeal means that a State has the power 
to enforce through arrest and an action for trespass the 
discrimination of a private owner of a private business 
operated on premises privately owned.

There is no merit in defendants’ contention that all the 
cases should be nonsuited, because the demands that they 
leave Kress’ store, their arrest by an officer of the city 
of Durham, and the judicial process here, is an uncon­
stitutional interference with their constitutional rights of 
free speech, and of assembly to advocate and persuade for 
a termination of racial discrimination.

No one questions the exercise of these rights by the de­
fendants, if exercised at a proper place and hour. How­
ever, it is not an absolute right. The answer to this con­
tention is given by the Court in Kovacs v. Cooper, 336 
U. S. 77, 93 L. Ed. 513, 10 A. L. E. 2d 608: “Of course, 
even the fundamental rights of the Bill of Eights are not 
absolute. The Saia Case recognized that in this field by 
stating ‘The hours and place of public discussion can be 
controlled.’ It was said decades ago in an opinion of this 
Court delivered by Mr. Justice Holmes, Schenck v. United 
States, 249 US 47, 52, 63 L ed 470, 473, 39 S Ct 247, 
that: ‘The most stringent protection of free speech would 
not protect a man in falsely shouting fire in a theatre and 
causing a panic. It does not even protect a man from 
an injunction against uttering words that may have all 
the effect of force.’ Hecklers may be expelled from as­
semblies and religious worship may not be disturbed by 
those anxioirs to preach a doctrine of atheism. The right 
to speak one’s mind would often be an empty privilege in



17a

a place and at a time beyond the protecting hand of the 
guardians of public order.”

The evidence in these cases shows that the White de­
fendants, and most, if not all, of the Negro defendants 
were freely and without molestation exercising these rights 
upon the streets of the city of Durham. However, they had 
no constitutional right to exercise these rights as tres­
passers in Kress’ store in violation of G. S. 14-134 and 
G. S. 14-126 in Kress’ store.

There is no merit in defendants’ contention that the 
indictments should be quashed, and the cases nonsuited, 
because S. H. Kress and Company is licensed by the city 
of Durham to operate a retail store, and therefore racial 
discrimination in the store cannot be enforced. The license 
is not in the record before us, and there is no suggestion 
by defendants that the license issued to S. H. Kress and 
Company contained any restrictions as to whom S. H. 
Kress and Company should serve. The answer to this 
contention, showing it is without merit, is set forth in S. v. 
Clyburn, supra, in Slack v. Atlantic White Tower System, 
Inc., supra, and in Williams v. Howard Johnson’s Restau­
rant, supra, and defendants’ contention is overruled upon 
authority of those cases. In the last case the Court said: 
“The customs of the people of a State do not constitute 
State action within the prohibition of the Fourteenth 
Amendment.”

Defendants further contend that the indictments should 
be quashed, and the cases nonsuited, because G. S. 14-134 
is too indefinite and vague to be enforceable under the due 
process clause of the 14th Amendment and under Article 
I, §17, of the State Constitution, in that the statute does 
not require the person in charge of the premises to identify 
himself, and in that W. K. Boger did not identify himself 
when he asked them not to enter the luncheonette depart­
ment, and when he asked them to leave after they seated 
themselves. This contention is not tenable.



18a

Gf. S. 14-134 necessarily means that the person forbid­
ding a person to go or enter upon the lands of another 
shall be the owner or occupier of the premises or his agent, 
and that is an essential element of the offense to be proved 
by the State beyond a reasonable doubt. The statute is 
not too vague and indefinite to be enforceable as challenged 
by defendants, because it does not use the specific words 
that the person forbidding the entry shall identify himself. 
This is a matter of proof.

On a motion for judgment of compulsory nonsuit the 
State’s evidence is to be considered in the light most favor­
able to the State, and the State is entitled to the benefit of 
every reasonable intendment thereon and every reason­
able inference to be drawn therefrom. 8. v. Corl, 250 N. C. 
252, 108 S. E. 2d 608. In our opinion, when the State’s 
evidence is so considered, it permits the reasonable in­
ference that all the defendants knew when W. K. Boger 
forbade them to go upon or enter the luncheonette depart­
ment, and requested them to leave after they had seated 
themselves there, he was the agent of S. H. Kress and 
Company in charge of the store, and we so hold.

Defendants contend that all the cases should be non­
suited because the evidence is insufficient to carry the case 
to the jury. All defendants introduced evidence. Having 
done so, they waived their motions for judgment of in­
voluntary nonsuit which they had made at the close of 
the State’s case, and must rely on their similar motions 
made at the close of all the evidence. G-. S. 15-173.

Considering the State’s evidence in the light most favor­
able to the State, and not taking defendants’ evidence into 
consideration unless favorable to the State, or except when 
not in conflict with the State’s evidence, it may be used to 
explain or make clear the State’s evidence (S. v. Nall, 239 
N. C. 60, 79 S. E. 2d 354), as we are required to do in pass­
ing upon defendants’ motion made at the close of all the



19a

evidence, it tends to show that all the defendants without 
legal or constitutional right or bona fide claim of right 
entered the luncheonette department of S. H. Kress and 
Company after having been forbidden by W. K. Boger, 
the manager and agent of S. H. Kress and Company there, 
to do so, and after they had been requested by him to leave, 
refused to do so. The fact, that the violations by all de­
fendants of G. S. 14-126 and G. S. 14-134 were intentional, 
is shown clearly by their acts, by the two White defendants 
and by most, if not all, of the Negro defendants in urging 
people to boycott the Kress store, and further by the plan 
entered into by the Negro defendants on the night of 5 
May 1960 to go the following day to the Kress store, enter 
the luncheonette department there, take seats, and de­
mand service. The evidence was sufficient to carry the 
cases to the jury, and we so hold.

The motions to quash the indictments raise most, if not 
all, of the constitutional questions raised by the motions 
for judgments of compulsory nonsuit made at the close of 
all the evidence. All these questions have been considered 
by the Court and most, if not all, discussed in the opinion. 
In our opinion, and we so hold, the trial court properly 
overruled the motions to quash the indictments, and cor­
rectly submitted all the cases to the jury.

Defendants’ assignments of error relating to the evidence 
are without merit, and do not justify discussion.

Defendants’ assignment of error to the charge of the 
court to the jury is to the whole charge, without any state­
ment as to what part of it is, as they contend, error. Such 
an assignment of error is too general and indefinite to 
present any question for decision. S. v. Dillard, 223 N. C. 
446, 27 S. E. 2d 85, and cases there cited. In that case the 
Court said: “Unpointed, broadside exceptions will not be 
considered. Citing authority. The Court will not go on a 
voyage of discovery to ascertain wherein the judge failed



20a

to explain adequately the law in the case. Citing author­
ity. The assignment must particularize and point out spec­
ifically wherein the court failed to change the law arising 
on the evidence.” Further, defendants in their brief make 
no mention of the charge, and no exception to the charge 
appears in the record, except in the assignment of error. 
An assignment of error will be disregarded when it is not 
supported by an exception in the record, but only by an 
exception appearing in the assignment of error. Barnette 
v. Woody, 242 N. C. 424, 88 S. E. 2d 223; Watters v. Par­
rish, 252 N. C. 787, 115 S. E. 2d 1. The assignment of er­
ror as to the charge as a whole, not being mentioned, in 
defendants’ brief is taken as abandoned by defendants. 
Rules of Practice in the Supreme Court, Rule 28, 221 N. C. 
544; S. v. Atkins, 242 N. C. 294, 87 S. E. 2d 507. However, 
a reading of the charge, which is in the record, shows that 
the trial judge correctly declared and explained the law 
arising on the evidence given in the cases, as required by 
Gl. S. 1-180, and in particular instructed the jury to the 
effect that if the defendants entered the luncheonette de­
partment of the Kress store after being forbidden under 
a bona fide claim of right and if they had reasonable 
grounds for such belief, and refused to leave after they 
had been requested to do so under such claim, as they 
contend their evidence tended to show, then there would 
be no criminal responsibility, and it would be the duty of 
the jury to acquit all defendants. 8. v. Clyhurn, supra; 
S. v. Fisher, 109 N. C. 817, 13 S. E. 878. This Court said in 
S. v. Crawley, 103 N. C. 353, 9 S. E. 409, which was a crim­
inal action for entry upon land after being forbidden: 
“A mere belief on his part that he had such claim would 
not be sufficient—he was bound to prove that he had rea­
sonable ground for such belief, and the jury should so 
find under proper instructions from the court. 8. v. Bryson, 
81 N. C. 595.” This Court said in 8. v. Wells, 142 N. C.



21a

590, 55 S. E. 210: “True we have held in several well- 
considered decisions, that when the State proves there has 
been an entry on another’s land, after being forbidden, 
the burden is on the defendant to show that he entered 
under a license from the owner, or under a bona fide claim 
of right. And on the question of bona fides of such claim, 
the defendant must show that he not only believed he had 
a right to enter, but that he had reasonable grounds for 
such belief. 8. v. Glenn, 118 N. C., 1194; 8. v. Durham, 121 
N. C., 546. But where there is evidence tending to show 
that the defendant believed and had reasonable ground to 
believe in his right to enter, then in addition to his right, 
the question of his bona fide claim of right must be in 
some proper way considered and passed upon before he 
can be convicted.” Defendants have nothing to complain 
of in respect to the charge, and their counsel evidently 
thought so by not mentioning the charge in their joint 
brief filed with us.

Defendants’ motions in arrest of judgment, which the 
court overruled, and which defendants assign as error, are 
not mentioned in defendants’ brief, and are taken as 
abandoned by defendants.

All of the assignments of error by the defendants have 
been considered, and all are overruled. Defendants have 
not shown the violation of any of their rights, or of the 
rights of any one of them, as guaranteed by the 14th 
Amendment to the Federal Constitution, and by Article I, 
§17, of the North Carolina Constitution.

A T r u e  C opy  :

No Error.

[S ea l ]

/ s /  A drian  J. N ew to n  
Clerk of Supreme Court of North Carolina.



2 2 a

I n  t h e  S u p r e m e  C ourt  of  t h e  S tate  of 
N orth  Carolina

S tate

— . y . —

.Jo h n  T h o m a s  A v e n t , L acy C arrole S tr e e t e r , F r a n k  Mc­
G il l  C o lem a n , S h ir l e y  M ae B r o w n , D onovan  P h i l ­
l ip s , C allis  N a po lis  B row n  a n d  J oan H arris N elso n

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

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

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this the 6th day of March, 1961.

Appeal docketed 
Case argued 
Opinion filed 
Final judgment entered

8 November 1960 
29 November 1960 
20 January 1961 
20 January 1961

A drian  J. N ew to n  
Clerk of the Supreme Court of 

the State of North Carolina