Curry v. Dallas NAACP Motion for Leave to File Brief Amicus Curiae

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1961

No. 846

CHRISTOPHER MITCHELL, JOHN BAILEY, JO­
SEPH GERIDEAU, JAMES GILBERT BLAKE, 
ANDREW BROWN, ALVIN DELFORD LATTEN, 
FRED SMALL, CORNELIUS FLUDD, CHARLES 
BUTLER, FRANCIS JOHNSON, DAVID PAUL 
RICHARDSON, JOSEPH JONES, ALFRED HAM­
ILTON, HARVEY GANTT, ALLEN COLEY, KEN­
NETH ANDREW GERMAN, CAROLYN JENKINS, 
ARTHUREE SINGLETON, JENNIESE BLAKE, 
DELORES BROWN, ANNETTE GRAHAM, CE- 
CILE GORDON, VERNA JEAN McNEIL, MIN­
ERVA BROWN, P etitioners,

versus
CITY OF CHARLESTON, R espondent

BRIEF OPPOSING PETITION FOR 
WRIT OF CERTIORARI

MORRIS D. ROSEN,
45 Broad Street,

Charleston, South Carolina, 
Corporation Counsel,

City of Charleston, 
ROBERT L. CLEMENT, JR.,

28 Broad Street,
Charleston, South Carolina, 

Attorneys for Respondent.
The R. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Statement ............................................................................ 1

Reasons for Denying the Writ:
I. Petitioners Committed Criminal Trespass on 

Private Property in South Carolina, and Were 
Properly Arrested and Subsequently Convicted, 
None of Which Violated Their Rights Under the 
Fourteenth Amendment. That the Interpreta­
tion Given the Trespass Statute by the South 
Carolina Supreme Court is in Accordance with 
the Interpretation Given Historically in this 
Country of Similar Trespass Statutes.............  3

II. The Trespass Statute of South Carolina Applies 
to all Citizens Equally, Discriminates against 
no Group or Individual, is Designed to Protect 
Property Rights of all Citizens of all Races and 
and Does Not Violate the Equal Protection and 
Due Process Clauses of the Fourteenth Amend­
ment to the Constitution of the United States .. 7

Conclusion .......................................................................... 14

( i )



TABLE OF CASES
P age

Alpaugh y. Wolverton, 184 Ya. 943, 36 S. E. (2d) 906 .. 7
Boynton v. Virginia, 364 U. S. 454, 81 S. Ct. 182 ..........  11
Cole v. Reece, 47 Pa. Super. Ct. 212 ............................  7
Com. v. Johnson, 71 Pa. Super Ct. 548 ......................... 7
Duffie v. Edwards, 185 S. C. 91,193 S. E. 211...............  4
Elletson v. Dixie Home Stores, 231 S. C. 565, 99 S. E. 

(2d) 384 .......................................................................... 4
Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276 ............  12
McCall v. Alexander, 81 S. C. 131, 61 S. E. 1106.............  4
McConnell v. Kennedy, 29 S. C. 180, 7 S. E. 7 6 .............  4
Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836 ......... 11, 12
Slack v. Atlantic White Tower System, Inc., 284 F.

(2d) 747 .......................................................................... 7
State v. Avent, 253 N. C. 580, 118 S. E. (2d) 47 . . .  .6, 7, 8
State v. Bradley, 126 S. C. 465, 120 S. E. 244 .................  4
State v. Clyburn, 247 N. C. 455, 101 S. E. (2d) 296 . . . .  5
State v. Randolph et al., 239 S. C. 79, 121 S. E. (2d) 349 4
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 ............................................................................7, 8, 11
Williams v. Hot Shoppes, Inc., 293 F. (2d) 835 .......... 8

STATUTE AND OTHER AUTHORITIES

49 A. L. R., p. 597 ............................................................  6
52 Am. Jur., Section 84, p. 895 ........................................ 7
South Carolina Code, Sec. 15-1561 ................................  4
South Carolina Code, Sec. 16-386 ................................ 2, 3
South Carolina Code, Sec. 43-111.................................... 4
South Carolina Code, Sec. 43-113....................................  4

( i i )



IN THE

Supreme Court of the United States
OCTOBER TERM, 1961

No. 846

CHRISTOPHER MITCHELL, JOHN BAILEY, JO­
SEPH GERLDEAU, JAMES GILBERT BLAKE, 
ANDREW BROWN, ALVIN DELFORD LATTEN, 
FRED SMALL, CORNELIUS FLUDD, CHARLES 
BUTLER, FRANCIS JOHNSON, DAVID PAUL 
RICHARDSON, JOSEPH JONES, ALFRED HAM­
ILTON, HARVEY GANTT, ALLEN COLEY, KEN­
NETH ANDREW GERMAN, CAROLYN JENKINS, 
ARTHUREE SINGLETON, JENNIESE BLAKE, 
DELORES BROWN, ANNETTE GRAHAM, CE- 
CILE GORDON, VERNA JEAN McNEIL, MIN­
ERVA BROWN, P etitioners,

versus
CITY OF CHARLESTON, R espondent

BRIEF OPPOSING PETITION FOR 
WRIT OF CERTIORARI

STATEMENT
On April 1st, 1960, at about 10:45 o’clock, a. m., Peti­

tioners entered the premises of S. H. Kress & Company, a 
private business corporation, in the City of Charleston, 
State of South Carolina, and seated themselves at the lunch 
counter (R. 10, 11). The Petitioners were not served by 
S. H. Kress & Company and remained seated at the lunch 
counter until about 4 :30 o’clock, p. m., when they were re­
quested to leave the establishment by the manager, who 
had properly identified himself (R. 11). The request was



ignored, and was repeated a second time, but Petitioners 
continued to sit and refused to leave the premises (R. 12). 
Chief William F. Kelly then advised them that inasmuch 
as they had failed to comply with the request of the man­
ager of Kress, it was necessary to place them under arrest 
(R. 24, 25). The evidence discloses that the City Police 
Department had received information that a bomb was 
going to go off in the Kress building (R. 21, 23). It was 
after this report was received that the Petitioners were 
told to leave the premises of Kress by the Management 
of Kress (R. 11, 23, 24).

Petitioners were charged with violating Title 16, Sec­
tion 386, of the Code of Laws of South Carolina for 1952, 
as amended, and Section 33-39 of the Code of the City of 
Charleston for 1952.

Petitioners were tried before the City Recorder with­
out a jury and found guilty of both charges and each sen­
tenced to pay fines of Fifty ($50.00) Dollars or serve fif­
teen (15) days in jail on each offense; the sentences in each 
case to run concurrently (R. 61, 71) (Error at R. 56).

The judgments of the City Recorder were affirmed by 
the Court of General Sessions for Charleston County on 
June 26th, 1961 (R. 77).

The Petitioners appealed to the Supreme Court of 
South Carolina, which affirmed the judgment of conviction 
of trespass and violation of Title 16, Section 386, of the 
1952 Code of Laws of South Carolina, as amended, and 
reversed the judgment of conviction for the offense of inter­
fering with a police officer under Section 33-39 of the Code 
of the City of Charleston for 1952. The Supreme Court of 
South Carolina denied re-hearing on January 8th, 1962.

2 Mitchell et aL, Petitioners, v. City op Charleston, Respondent



REASONS FOR DENYING THE WRIT 
I

Petitioners committed criminal trespass on private 
property in South Carolina and were properly arrested and 
subsequently convicted, none of which violated their rights 
under the Fourteenth Amendment. That the interpretation 
given the Trespass Statute by the South Carolina Supreme 
Court is in accordance with the interpretation given his­
torically in this country of similar Trespass Statutes.

The Petitioners were staging a so-called “ sit-in” , but 
they were not arrested for merely sitting, demonstrating 
or watching, or because they were Negroes. They were ar­
rested only after the manager of a private business had 
asked them to leave the premises, and they failed or refused 
to do so. They thereupon became trespassers and were ar­
rested and convicted as such. Petitioners apparently con­
tend that they were engaged in the exercise of free expres­
sion by verbal and non-verbal requests for nondiscrimina- 
tory lunch counter service. The record shows that their 
actions were non-verbal, and the question of free speech 
is not involved. Petitioners also contend that the Statute 
under which they were charged is vague and indefinite in 
its terms and did not provide reasonable notice under which 
convictions could be obtained. In fact, every action of the 
Petitioners suggests that they intended and expected to be 
arrested for their actions and would, in fact, have been 
disappointed had they not been. They cannot under these 
circumstances complain that they had no notice.

The warrant for trespass states with particularity that 
the Petitioners commited a trespass “ in that they did fail 
and refuse to vacate the premises of S. H. Kress & Com­
pany when ordered to do so, all in violation of Title 16, 
Section 386, of the Code of Laws of South Carolina for 
1952, as Amended . . Certainly this language is un­

Mitchell et al., Petitioners, v. City of Charleston, Respondent 3



4 Mitchell et al., Petitioners, v. City op Charleston, Respondent

ambiguous and certainly the Petitioners could not have 
doubted the nature and cause of the accusations against 
them. Section 43-111 of the Code of Laws for South Caro­
lina for 1952, which is applicable to Municipal and Record­
ers Courts, has not been interpreted so as to require tech­
nical accuracy in stating the offense. Elletson v. Dixie 
Home Stores, 231 S. C. 565, 99 S. E. (2d) 384; McConnell 
v. Kennedy, 29 S. C. 180, 7 S. E. 76; McCall v. Alexander, 
81 S. C. 131, 61 S. E. 1106; Duffie v. Edwards, 185 S. C. 
91, 193 S. E. 211; State v. Randolph et al., 239 S. C. 79, 
121 S. E. (2d) 349. Section 43-113 of the Code of Laws of 
South Carolina for 1952 provides that proceedings before 
a magistrate are summary in nature. Section 15-1561 of 
the Code of Laws of South Carolina for 1952 gives the 
Recorder of the Police Court of the City of Charleston all 
powers, duties and jurisdiction of a magistrate.

Petitioners are apparently attempting to raise the ques­
tion as to whether the trespass conviction can stand under 
the facts proven, in view of the wording of the Statute 
which uses the phrase “after notice from the owner or 
tenant prohibiting such entry” .

In State v. Bradley, 136 S. C. 465, 120 S. E. 244, South 
Carolina’s highest Court stated as follows:

“ In State v. Lightsey, 43 S. C. 114, 20 S. E. 975, 
the presiding judge charged the jury: And on ‘the land 
away from his castle he has not the same right there 
that he has in his home. . . .  If a man warns an­
other off his place, and that man comes on it (or re­
fuses to leave, we add), he is guilty of a crime, a mis­
demeanor, and for that misdemeanor he may be tried 
in court’.”
A unanimous Court stated unequivocally in the above 

quotation that if a man warns another off his place and 
that man refuses to leave, he is guilty of a crime, a mis­
demeanor. This view of our trespass statute is generally



Mitchell et al., Petitioners, v. City op Charleston, Respondent 5

followed where the question has arisen under similar 
statutes.

Our sister State of North Carolina, in State v. Clyburn, 
101 S. E. (2d) 295, had before it the identical question 
involved here. The Defendants in the Clyburn case con­
tended that the North Carolina statute had no application 
since it only made criminal an entry after being forbidden. 
The Court, following numerous previous decisions in North 
Carolina, held that one who remained after being directed 
to leave was guilty of wrongful entry, even though the 
original entrance was peaceful and authorized. The Court 
stated as follows:

“Does the statute, G. S., Sec. 14-134, apply to such a 
trespasser? Defendants maintain it has no application 
since it only makes criminal an entry after being for­
bidden. The merit, if any, in the position taken 
is determined by ascertaining the wrong condemned. 
The denomination of the criminal act and the historic 
interpretation given to the words used to define the 
act provide the answer to the question. The statute, 
first enacted in 1866, is entitled ‘An Act To Prevent 
Wilful Trespasses On Land, and Stealing Any Kind 
of Property Therefrom’. It is now grouped with other 
statutes relating to wrongs done to the owners of real 
estate in a sub-chapter of our criminal laws entitled 
‘Trespasses to Land and Fixtures’. Looking at the 
titles, it is apparent the Legislature intended to pre­
vent the unwanted invasion of the property rights of 
another. State v. Cooke, supra; State v. Baker, 231 
N. C. 136, 56 S. E. (2d) 424; It is not the act of enter­
ing or going on the property which is condemned; it 
is the intent or manner in which the entry is made that 
makes the conduct criminal. A peaceful entry negatives 
liability under G. S. Section 14-126. An entry under 
a bona fide claim of rights avoid criminal responsibility 
under G. S. Section 14-134 even though civil liability 
may remain. State v. Faggart, 170 N. C. 737, 87 S. E. 
197; State v. Wells, 142 N. E. 590, 55 S. E. 210; State



6 Mitchell et al., Petitioners, v. City of Charleston, Respondent

v. Fisher, 109 N. C. 817, 13 S. E. 878; State v. Crosset, 
81 N. C. 579.
What is the meaning of the word ‘enter’ as used in the 
statute defining a criminal trespass? The word is used 
in G. S. Sec. 14-126 as well as G. S. Sec. 14-134. One 
statute relates to an entry with force; the other to a 
peaceful entry. We have repeatedly held, in applying 
G. S. Section 14-126 that one who remained after being 
directed to leave is guilty of a wrongful entry even 
though the original entrance was peaceful and author­
ized. State v. Goodson, supra; State v. Fleming, 194 
N. C. 42, 138 S. E. 342; State v. Bobbins, 123 N. C. 
730, 31 S. E. 669; State v. Webster, 121 N. C. 586, 28 
S. E. 254; State v. Gray, 109 N. C. 790, 14 S. E. 55; 
State v. Talbot, 97 N. C. 494, 2 S. E. 148. The word 
‘entry’ as used in each of these statutes is synonymous 
with the word ‘trespass’. It means an occupancy or 
possession contrary to the wishes and in derogation of 
the rights of the person having actual or constructive 
possession. Any other interpretation of the word would 
improperly restrict clear legislative intent. The charge 
as given is the correct interpretation of the statute.”
See also State v. Avent, 118 S. E. (2d) 47 (N. C.), 

page 53.
An annotation in 49 A. L. R., page 597, deals with the 

criminal offense of forcible detainer or trespass, where 
entry was peaceable, and states in part as follows:

“ The few cases in which the question of the effect of 
a peaceable entry in prosecution of forcible entry or 
trespass has arisen, with the exception of a few earlier 
North Carolina cases hereinafter referred to, support 
the holding in the reported cases (State v. Tyndall, 
ante, 596) to the effect that although the entry on lands 
may be effected peaceably, and even with the permis­
sion of the owner, yet, if after going upon the premises 
of another the defendant uses violent or abusive lan­
guage, and commits acts such as are reasonably cal­
culated to intimidate or lead to a breach of the peace, 
he will be guilty of a forcible trespass.”



Mitchell et al., Petitioners, v. City of Charleston, Respondent 7

While there is no abusive language present in the cases 
before this Court, the principle of notice after entry is rel­
evant to the issue attempted to be raised by Appellants. 
Numerous cases are cited in the A. L. R. annotation from 
North Carolina, and the following Pennsylvania cases: 
Cole v. Reece, 47 Pa, Super. Ct. 212; Com. v. Johnston, 71 
Pa. Super. Ct. 548. Also see 52 Am. Jur., Trespass, Section 
84, page 895, where the following is found:

“A mere invasion of private property without any dis­
turbance of the peace is not a crime. On the other hand, 
although an entrance on land may be effected peace­
ably or even with the permission of the owner, a person 
making such entry may by reason of subsequent con­
duct while there be held guilty of a forcible trespass.”

II
The Trespass Statute of South Carolina applies to all 

citizens equally, discriminates against no group or indi­
vidual, is designed to protect property rights of all citizens 
of all races and does not violate the Equal Protection and 
Due Process Clauses of the Fourteenth Amendment to the 
Constitution of the United States.

The tresyjass statute under which Petitioners were 
arrested, tried and convicted is not racial in origin or in 
enforcement. It has been part of the statutory law of South 
Carolina since about 1866.

The Petitioners apparently seek in this case to avoid 
or ignore the well established principle that a private busi­
ness has a perfect right to select its customers and to make 
such selection on any basis it chooses. State v. Avent (N. 
C.), 118 S. E. (2d) 47; Williams v. Howard Johnson’s Res­
taurant, 4th Cir., 268 F. (2d) 845; Slack v. Atlantic White 
Tower System, Inc., 284 F. (2d) 746; Alpaugh v. Wolver- 
ton (Va.), 36 S. E. (2d) 906. Such right is embraced within 
the broad rights which characterize the ownership of pri­



8 Mitchell et al., Petitioners, v. City of Charleston, Respondent

vate property. In denying to the Petitioners service at its 
lunch counter, it is true that S. H. Kress & Co. was volun­
tarily following a prevailing custom of racial segregation. 
By no means is Kress or any other business establishment 
required or compelled to follow such custom. It is, after 
all, a free choice, exercised by the owner of private prop­
erty as a matter of right.

The record is clear that the Petitioners violated local 
custom by seeking service at the Kress lunch counter. How­
ever, they were not arrested by the City of Charleston 
for seeking such service. They were arrested after they 
refused to leave the private property of Kress. By their 
act of refusal and their failure to leave, they became 
trespassers, subject to arrest and prosecution under 
the trespass statute. The police were not enforcing a policy 
or custom of racial segregation. They were enforcing a 
criminal statute based solely on private property rights 
without regard to race, color or creed. The customs of the 
people of a state do not constitute state action within the 
prohibition of the Fourteenth Amendment, and it has been 
so held repeatedly. State v. Avent, supra; Williams v. 
Howard Johnson’s Restaurant, supra; Williams v. Hot 
Shoppes, Inc., 293 F. (2d) 835.

The position of the City of Charleston has been perhaps 
best stated by the North Carolina Supreme Court in State 
v. Avent, supra, at page 54, where the Court stated as 
follows:

“Private rights and privileges in a peaceful society liv­
ing 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 inconsis­
tency in speaking of the rights of an individual who 
cannot have judicial recognition of his rights. All the 
State did in these cases was to give or create a neutral



Mitchell et al., Petitioners, v. City of Charleston, Respondent 9

legal framework in which S. H. Kress and Company 
could protect its private property from trespassers 
upon it in violation of G. S. Sec. 14-134 and G. S. Sec­
tion 14-126. There is a recognizable difference be­
tween State action that protects the plain legal right 
of a person to prevent trespassers from going upon 
his land after being forbidden, or remaining upon his 
land after a demand that they leave, even though it 
enforces the clear legal right of racial discrimination 
of the owner, and State action enforcing covenants re­
stricting the use or occupancy of real property to per­
sons 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 tres­
passers upon its private property in violation of G. S. 
Sec. 14-134 and G. S. See. 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 judicial process violates no rights 
of the Defendants guaranteed to them by Article 1, 
Sec. 17, of the State Constitution. To rule as contended 
by Defendants would mean that S. H. Kress and Com­
pany 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 pro­
tection of the law. If a land owner or one in possession 
of land cannot protect his natural, inherent and con­
stitutional 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 a 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. Ii., p. 379 quoted above; 
4 Am. Jur., Assault and Battery, Sec. 76, p. 167; 6 
C. J. S. Assault and Battery Sec. 20 (2). This is said 
in 4 Am. Jur., Assault and Battery, Sec. 76, p. 168: 
‘Even though the nature of the business of the owner



of property is such as impliedly to invite to Ms prem­
ises persons seeking to do business with him, he may, 
nevertheless, in most instances refuse to allow a cer­
tain person to come on his premises, and if such person 
does thereafter enter his premises, he is subject to 
ejection although his conduct on the particular oc­
casion is not wrongful.’ . . . White people also
have constitutional rights as well as Negroes, which 
must be protected, if our constitutional form of gov­
ernment 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 Profes­
sor of Law, University of Kentucky, and appearing in 
Columbia Law Review, December, i960, Vol. 60, No. 8, 
in note 134, page 1122: ‘State court recognition of the 
restaurateur’s private discrimination could be in the 
form of denial of any action against him by an ag­
grieved 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, 68 S. Ct. 836, 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’.”
No statutory or constitutional law, either of the State 

of South Carolina or of the City of Charleston, requires 
the segregation of races in public restaurants. Conse­
quently, there is no violation present of the provisions of 
the Fourteenth Amendment which prohibit the states from 
making or enforcing any law abridging the privileges and 
immunities of citizens of the United States, or denying to 
any person the equal protection of the law.

The trespass statute of South Carolina is obviously 
designed to protect private property rights of all citizens, 
but it does not authorize State and City officials to control 
the management of a business or to dictate what persons

10 Mitchell et a l, Petitioners, v. City of Charleston, Respondent



shall be served. As stated by the Supreme Court of the 
United States, in Shelley v. Kraemer., 334 U. S. 1, 68 S. Ct. 
836, 842, 92 L. Ed. 1161:

“ Since the decisions of this Court in the Civil Rights 
Cases, 1883, 109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 835, 
the principle has become firmly embedded in our con­
stitutional law that the action inhibited by the first 
Section of the Fourteenth Amendment is only such ac­
tion as may fairly be said to be that of the States. 
That Amendment erects no shield against merely pri­
vate conduct, however discriminatory or wrongful.”
See also in this connection Williams v. Howard John­

son’s Restaurant, supra.
While it is true that there is State action present to 

the extent of the enforcement of a trespass statute protect­
ing private property rights, it is also true that this statute, 
by its long history and enforcement, is not concerned with 
racial differences or the perpetuation of segregation. It 
applies to a negro home and gives protection to the owner 
thereof, as it does to a white home and the owner thereof. 
It protects negroes’ businesses from serving negroes, 
whites, redhead people, people of objectionable ages, or any­
one else. To hold such a statute unconstitutional would 
result in chaos. Private ownership would be meaningless 
without the power to determine who shall stay and who 
shall go. A lessee of a small grocery store could not evict 
or have arrested a person who refuses to leave the prem­
ises when ordered. He would be left to his own devices, as 
the early American pioneers, with the consequent, inevit­
able violence.

Petitioners have cited numerous decisions, none of 
which, however, deal with the issue now before this Court.

The case of Boynton v. Virginia, 364 U. S. 454, 81 S. 
Ct. 182, is apparently relied on by Petitioners in support 
of their argument that the statute is unconstitutional, if

Mitchell et al., Petitionees, v. City op Charleston, Respondent 11



applied to a customer refusing to leave private business 
premises. However, this decision of the United States Su­
preme Court in 1960 involved the application of the Inter­
state Commerce Act of the United States. The majority 
opinion does not pass on any constitutional issue, includ­
ing the issue raised by the Petitioners under the Fourteenth 
Amendment. The Court, however, did have the following 
to say:

“Because of some of the arguments made here, it is 
necessary to say a word about what we are not decid­
ing. We are not holding that every time a bus stops 
at a wholly independent roadside restaurant, the Inter­
state Commerce Act requires that restaurant service 
be supplied in harmony with the provisions of that act.”
Petitioners also cite Shelley v. Kraemer, swpra, which 

is inapplicable, inasmuch as it involved the enforcement 
by a Court of racial restrictions. It was not necessary to 
prove Petitioners were Negroes to obtain a conviction for 
trespass. Their race or national origin was meaningless in 
the prosecution of the case.

Petitioners cite Marsh v. State of Alabama, 326 U. S. 
501, 66 S. Ct. 276. However, Petitioners were not sitting 
on a company owned sidewalk or right-of-way which was 
freely accessible and the business block of a community 
shopping center. The Marsh case did not involve the rights 
of the owner of a private business within his establishment 
as does the instant case. Consequently, Petitioners’ analogy 
is not proper, that the lessee or owner of a private business 
establishment must serve even one he does not wish to 
serve. The Marsh case must be limited to its particular 
facts, namely, a company owned sidewalk near a post office 
in a business block in a suburb owned by a shipbuilding 
corporation.

The Fourteenth Amendment does not deny a citizen 
the right to be racially prejudiced and racially discrimina­

12 Mitchell et a l, Petitioners, v. City of Charleston, Respondent



tory. This, too, is a freedom that is protected. If Kress, 
in the exercise of its rights under the Constitution of the 
United States, determines to he racially discriminatory and 
determines to remove Negroes from its lunch counter, it 
certainly has such a right and must bear the economic re­
sults of such policy. After all, Petitioners were not arrested 
because they were Negroes, nor because they sat at a lunch 
counter, nor because they remained at the lunch counter 
for several hours. They were arrested and tried on a war­
rant sworn out by Kress for refusing to leave private prop­
erty when requested to do so by the owner.

It has been said that freedom of speech is freedom for 
the speech that one abhors. It follows, therefore, that free­
dom of association and freedom to use property to serve 
or entertain those one wishes may be freedom some abhor, 
but, nevertheless, they are freedoms that are protected by 
the United States Constitution.

It should not be overlooked that although Petitioners 
may not have been served at 10:45 o’clock, a. m., because 
Kress was allegedly exercising racial discrimination, Peti­
tioners were not requested to leave because of racial dis­
crimination. They sat mute and unmolested for over five 
hours. The manager was advised of a bomb threat; all per­
sons in the store, both white and colored, were requested 
to leave for this reason. Only Petitioners chose not to com­
ply. Only Petitioners chose to remain. Only Petitioners 
chose to become trespassers. Only Petitioners chose to de­
mand police action.

Mitchell et al., Petitioners, v. City of Charleston, Respondent 13



CONCLUSION
It is respectfully submitted that the Supreme Court of 

South Carolina decided all Federal questions in accordance 
with the applicable decisions of this Court and the Consti­
tution of the United States, and the Petition for Writ of 
Certiorari should be denied.

Respectfully submitted,

MORRIS D. ROSEN,
45 Broad Street,

Charleston, South Carolina, 
Corporation Counsel,

City of Charleston,

ROBERT L. CLEMENT, JR.,
28 Broad Street,

Charleston, South Carolina, 
Attorneys for Respondent.

14 Mitchell et al.y Petitioners, v. City op Charleston, Respondent