Barr v. Columbia Brief Opposing Petition for Writ of Certiorari

    Supreme Court of the United States

October T erm, 1961
I

No

CHARLES F. BARR, RICHARD M. COUNTS, DAVID 
CARTER, MILTON D. GREENE and JOHNNY 
CLARK, P etitioners,

versus

THE CITY OF COLUMBIA, R espondent

BRIEF OPPOSING PETITION FOR WRIT 
OF CERTIORARI

JOHN W. SHOLENBERGER, 
City Attorney,

EDWARD A. HARTER, JR., 
Assistant City Attorney,

City Hall,
Columbia, S. C.,

Attorneys for Respondent.

Tha R. L. Bryan Company, Looal P rln ta ri. Columbia. S. C.



INDEX
P age

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

Reasons for Denying the Writ:
L The Petitioners Were Trespassers and Were 

Subject to Being Ejected or Arrested Without 
Violating Their Rights Under the Fourteenth 
Amendment .......................................................  3

II. The Decision of the Supreme Court of South 
Carolina Granted Petitioners All Rights to 
Freedom of Expression to Which They Were 
Entitled Under the Fourteenth Amendment to 
the Constitution of the United S ta te s ............  6

III. The Question of the Conviction of Petitioners 
for Breach of the Peace in Violation of Sect. 
15-909 of the Code of Laws of South Carolina, 
1952, in Addition to the Conviction for Tres­
pass Under Section 16-386 of Said Code, Has
Never Been Properly R aised............................ 8

Conclusion ........................................................................ 9

I



*
!

TABLE OF CASES
P age

Alpaugh v. Wolverton, 36 S. E. (2d) 906, 184 Va. 943 .. 4
City v. Mitchell, . . . .  S. C........ , 123 S. E. (2d) 512 . . . .  6
Garner v. Louisiana, 368 U. S. 157, 7 L. Ed. (2d) 207,

82 S. Ct. 248 ..................................................................  3
Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 90 L.

Ed. 265 .......................................................................... 8
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331......... 4, 6
Slack v. Atlantic White Tower System, Tnc., 284 F. 

(2d) 747 ........................................................................ 4
State v. Lazarus, 1 Mills, Constitution (8 S. C. L.) 34

4, 6
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 .................................................................................  4

STATUTES
South Carolina Code, Sec. 15-909 ...................................  8
South Carolina Code, 1952, as Amended, Sec. 16-386

5,7, 8
General Statutes of South Carolina (1882) ...................  5
1883 Acts of South Carolina (18) Page 4 3 ....................  5
1S98 Acts of South Carolina (22) Page 811 ..................  5
1954 Acts of South Carolina (48) Page 1705 ................. 5

OTHER AUTHORITIES
Webster’s New International Dictionary (Second Edi­

tion) “Land” ................................................................  6

( i i )



Supreme Court of the United States

October Term, 1961

No

CHARLES F. BARR, RICHARD M. COUNTS, DAVID 
CARTER, MILTON D. GREENE and JOHNNY 
CLARK, P etitioners,

versus

THE CITY OF COLUMBIA, R espondent

BRIEF OPPOSING PETITION FOR WRIT 
OF CERTIORARI

STATEMENT
We adopt as our Statement the summary of the pro­

ceedings in the Recorder’s Court as given by Mr. Justice 
Oxner for the Supreme Court of South Carolina:

“The five appellants, all Negroes, were convicted in 
the Municipal Court of The City of Columbia of trespass 
in violation of Section 16-386 of tbe 1952 Code, as amended, 
and of breach of the peace in violation of Section 15-909. 
Each Defendant Avas sentenced to pay a fine of $1.00.00 or 
serve a period of thirty days in jail on each charge but



2 Bark et a l ,  Petitioners, v. City of Columbia, Respondent
r

$24.50 of the fine was suspended. From an order of the 
Richland County Court affirming their conviction, they 
have appealed.

“The exceptions can better be understood after a re­
view of the testimony. The charges grew out of a ‘sit-down’ 
demonstration staged by appellants at the lunch counter of 
the Taylor Street Pharmacy in The City of Columbia, a 
privately owned business. In addition to selling articles 
usually sold in drugstores, this establishment maintains a 
lunch counter in the rear, separated from the front of the 
store by a partition. The customers sit on stools. The policy 
of this store is not to serve Negroes at the lunch counter 
although they are permitted to purchase food and eat it 
elsewhere. In a sign posted the privilege of refusing serv­
ice to any customer was reserved.

“Shortly after noon on March 15, 1960, appellants, then 
college students, according to a prearranged plan, entered 
this drugstore, proceeded to the rear and sat down at the 
lunch counter. The management had heard of the proposed 
demonstration and had notified the officers. To prevent any 
violence, three were present when appellants entered. As 
soon as they took their seats several of the customers at 
the counter, including a White woman next to whom one 
of appellants sat, stood up. The manager of the store then 
came back to the lunch counter. He testified that the situa­
tion was quite tense, that you ‘could have heard a pin drop 
in there’, and that ‘everyone was on pins and needles, more 
or less, for fear that it could possibly lead to violence.’ He 
immediately told appellants that they would not be served 
and requested them to leave. They said nothing and con­
tinued to sit. At the suggestion of one of the officers, the 
manager then spoke to each of them and again requested 
that they leave. One of them stood up and inquired if he 
could ask a question. As this was done, the other four ap­
pellants arose. The manager replied that he did not care to



Bark et al., Petitioners, v. City of Columbia, Respondent 3

enter into a discussion and a third time told appellants to 
leave. Instead of doing so, they resumed their seats. After 
waiting several minutes, the officers arrested all of them 
and took them to jail.

“The foregoing summary is taken from the testimony 
offered by the State. Only two of the appellants testified. 
They denied that the manager of the store requested them to 
leave. They testified that an employee at the lunch counter 
stated to them, ‘You might as well leave because I ain’t 
going to serve you’, which they did not construe as a spe­
cific request. They said after it became apparent that they 
were not going to be served, they voluntarily left the lunch 
counter and as they proceeded to do so, were arrested. They 
denied that any of the White customers got up when they 
sat down, stating that these customers did so only after the 
employee at the lunch counter said: ‘Get up, we will get 
them out of here.’ ”

REASONS FOR DENYING THE WRIT 

I
The Petitioners Were Trespassers and Were Subject 

to Being Ejected or Arrested Without Violating Their 
Rights Under the Fourteenth Amendment.

This case does not come within the rule of Garner v. 
Louisiana, 368 U. S. 157, 7 L. Ed. (2d) 207, 82 S. Ct. 248. 
Petitioners were “sit-ins” but they were not arrested for 
merely sitting or demonstrating. They were arrested only 
after the owner of the private lunch counter asked them to 
leave the premises and they failed or refused to do so. They 
were trespassers then, if not before, both under common 
and statutory law and were arrested and convicted as such.

The lunch counter was privately owned, was within a 
privately owned drugstore in a privately owned building on 
privately owned ground and was engaged purely in local



4 Barr et al., Petitioners, v. City of Columbia, Respondent

commerce. The rights and duties of the proprietor were like 
those of a restaurant not an inn. As stated in Alpaugh v. 
Wolverton, 36 S. E. (2d) 906, 184 Va. 943, “He [the pro­
prietor] is under no common law duty to serve everyone 
who applies to him. In the absence of statute, lie may ac­
cept some customers and reject others on purely personal 
grounds.”

. Such proprietor violates no constitutional provisions 
if he makes a choice on the basis of color. Williams v. How­
ard Johnson’s Restaurant, 268 F. (2d) 845; Slack v. Atlan­
tic White Toiver System, Inc., 284 F. Ed. 747(1960).

If petitioners had no right to be served, the proprietor 
could as he did here, ask them to leave and upon their re­
fusal to comply with his request, they became trespassers. 
This has always been the law in South Carolina.

In State v. Lazarus, 1 Mill, Const. (8 S. C. Law) 31, 
(1817), the South Carolina Constitutional Court said: * * * 
“the prosecutor having business to transact with him [the 
defendant], had a right to enter his house and if he re­
mained after having been ordered to depart, might have 
been put out of the house, the defendant using no more vio­
lence than was necessary to accomplish this object, and 
showing to the satisfaction of the court and judge, that this 
was his object.”

In Sliramek v. Walker, 152 S. C. 88, 149 S. E. 331 
(1929), the Supreme Court of South Carolina quoted the 
rule as stated above in the Lazarus case, then quoted fur­
ther with approval from 2 R. C. L., 559, as follows:

“Therefore, while the entry by one person on the 
premises of another may be lawful, by reason of ex­
press or implied invitation to enter, his failure to de­
part, on the request of the owner, will make him a tres­
passer and justify the owner in using reasonable force 
to eject him.”



Bark et at., Petitioners, v. City of Columbia, Respondent 5

Neither of the above cases involved questions of race. 
In addition to becoming trespassers at common law, 

petitioners also violated Section 16-386 of the Code of Laws 
of South Carolina, 1952, as amended. The section was ap­
parently first enacted in 1866. In the General Statutes of 
South Carolina (1882), it read as follows:

“Sec. 2507. Every entry on the enclosed or unen­
closed land of another, after notice from the owner or 
tenant prohibiting the same shall be a misdemeanor.”
An Amendment of 1883 left out the words' “ the en­

closed or unenclosed” and added punishment by fine of not 
more than $100.00 or imprisonment of not more than 30 
days, 1883 Acts, etc. of South Carolina (18), page 43.

An Amendment of 1898 made the jjosting and publish­
ing of notice conclusive as to those making entry for hunt­
ing and fishing. 1898 Acts, etc. of South Carolina (22), 
page 811.

The Amendment of 1954 was tied in with an Amend­
ment to Section 16-355 increasing the penalty for larceny 
of livestock and as such added the words “ where any horse, 
mule, cow, hog or any livestock is pastured, or any other 
lands of another” , eliminated the requirement for publish­
ing the notice and changed the conclusiveness of notice 
from the purpose of hunting and fishing to that of tres­
passing. 1954 Acts, etc. of South Carolina (48), page 1705.

The section thus read at the time petitioners were ar­
rested in 1960, as follows:

“Sec. 16-386. Entry on lands of another after no­
tice prohibiting same. Every entry upon the lands of 
another where any horse, mule, cow, hog, or any other 
livestock is pastured, or any other lands of another, 
after notice from the owner or tenant prohibiting such 
entry, shall be a misdemeanor and be punished by a 
fine not to exceed one hundred dollars, or by imprison­
ment with hard labor on the public works of the county



6 Barr et al., Petitioners, v. City op Columbia, Respondent

for not exceeding thirty days. When any owner or ten­
ant of any lands shall post a notice in four conspicuous 
places on the borders of such land prohibiting entry 
thereon, a proof of the posting shall be deemed and 
taken as notice conclusive against the person making 
entry as aforesaid for the purpose of trespassing.”
The pertinent language, however, has remained the 

same for many years: “Every entry upon lands of another 
* * * after notice from the owner or tenant prohibiting such 
entry, shall loe a misdemeanor. * * *”

The South Carolina Supreme Court made no strained 
nor novel interpretation in applying the section to peti­
tioners. In Webster’s New International Dictionary (Sec­
ond Edition) “land” as used in “law” is defined as follows: 

“a. Any ground, soil, or earth whatsoever, re­
garded as the subject of ownership, as meadows, pas­
tures, woods, etc. and everything annexed to it, whether 
by nature, as trees, water, etc., or by man as buildings, 
fences, etc., extending indefinitely vertically upwards 
and downwards.

“b. An interest or estate in land, loosely, any tene­
ment or hereditament.”
And the South Carolina Supreme Court simply fol­

lowed the common law rule as stated in the Lazarus and 
Walker cases, supra, in applying the rule that a person may 
become a trespasser by refusing to leave even though his 
entry may have been lawful. City v. Mitchell, filed Dec. 13 
1961, . . . .  S. C........ ,123 S. E. (2d) 512.

II
The Decision of the Supreme Court of South Carolina 

Granted Petitioners All Rights to Freedom of Expression 
to Which They Were Entitled Under the Fourteenth 
Amendment to the Constitution of the United States.

There is no question but if a White man or a group of 
White men had gone into Taylor Street Pharmacy on the



Barr et al., Petitioners, v. City of Columbia, Respondent 7

day in question, had sat down, expecting service, had been 
told that they would not be served, and were further asked 
to leave but refused to do so, that they would have been 
guilty of violating Sec. 16-386 of the Code of Laws of 
South Carolina, 1952, as amended.

If Petitioners’ argument is understood, however, Peti­
tioners urge that because they were Negroes and the own­
ers of the lunch counter White, their right to protest ex­
ceeded their right to be served.

Is the right to protest greater than the right to con­
cur? The Fourteenth Amendment states simply and clearly 
that no State shall “deny to any person within its jurisdic­
tion the equal protection of the laws.”

The “ freedoms” guaranteed by the Constitution do 
not give a person a license to stand in a prohibited place 
to protest where he could not have stood to concur. Rather, 
the Constitution guarantees that a person standing where 
he has a right to stand, shall not be moved from that place 
by the State because of his protest, if his protest is within 
the protection of the Constitution.

As a practical matter, however, Petitioners were per­
mitted to give full range to their protest. As they state on 
pages 19 and 20 of their Petition for Writ of Certiorari:

“Petitioners were engaged in the exercise of free 
expression by means of nonverbal requests for nondis- 
criminatory lunch counter service which were implicit 
in their continued remaining at the lunch counter when 
refused service. The fact that sit-in demonstrations are 
a form of protest and expression was observed in Mr. 
Justice Harlan’s concurrence in Garner v. Louisiana, 
supra. Petitioners’ expression (asking for service) was 
entirely appropriate to the time and place at which it 
occurred. Petitioners did not shout, obstruct the con­
duct of business, or engage in any expression which 
had that effect. There were no speeches, picket signs, 
handbills or other forms of expression in the store



8 Barr et at., Petitioners, v. City of Columbia, Respondent

which were possibly inappropriate to the time and 
place. Rather petitioners merely expressed themselves 
by offering to make purchases in a place and at a time 
set aside for such transactions.”
The owner told them that they would not be served and 

asked them to leave. It was only after they refused to com­
ply with this request that they were arrested.

What more did petitioners want to do to express their 
protest! Continue to sit! For how long! Who decides when 
they shall leave!

This was not a street, private or otherwise, as was in­
volved in Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 
90 L. Ed. 265, where a person enters and stands as a mat­
ter of right but a private lunch counter in local commerce 
where a person enters and stands (or sits) upon invitation, 
express or implied, of the owner. The law decides how long 
a person has the right to remain on a street but the owner 
decides who shall remain in his store, and how long.

Ill
The Question of the Conviction of Petitioners for 

Breach of the Peace in Violation of Sect. 15-909 of the Code 
of Laws of South Carolina, 1952, in Addition to the Convic­
tion for Trespass Under Section 16-386 of Said Code, Has 
Never Been Properly Raised.

As stated by the Supreme Court of South Carolina in 
this case, in the last paragraph of its opinion:

“In oral argument counsel for appellants raised 
the question of merger of the two offenses and argued 
that there could not be a conviction on both charges. 
But this question is not raised by any of the exceptions, 
is not referred to in the brief of appellants and, there­
fore, is not properly before us.”



9Barr et al., Petitioners, v . City of Columbia, Respondent

CONCLUSION
In conclusion, it is respectfully submitted that the Su­

preme Court of South Carolina decided all federal ques­
tions of substance in the case in accordance with applicable 
decisions of this Court and the Petition for Writ of Cer­
tiorari should be denied.

All of which is respectfully submitted.

JOHN W. SHOLENBERGER, 
City Attorney,

EDWARD A. HARTER, JR., 
Assistant City Attorney,

City Hall,
Columbia, S. C.,

Attorneys for Respondent.
Columbia, S. C.,
May 3, 1962.