Bouie v. City of Columbia Petition for Writ of Certiorari to the Supreme Court of South Carolina
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March 7, 1962

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Brief Collection, LDF Court Filings. Bouie v. City of Columbia Petition for Writ of Certiorari to the Supreme Court of South Carolina, 1962. ef0e1e35-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7b65a3d8-d73e-4d11-af30-f515e023fcd3/bouie-v-city-of-columbia-petition-for-writ-of-certiorari-to-the-supreme-court-of-south-carolina. Accessed April 22, 2025.
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p I n the (&mvt at tin Octobeb T eem, 1961 No................ S imon B ouie and T almadge J. Neal, Petitioners, —v.— City of Columbia. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA J ack Geeenbeeg Constance B aker Motley J ames M. Nabrit, I I I Michael Meltsner 10 Columbus Circle New York 19, New York Matthew J . P erry L incoln C. J enkins, J r, 1107% Washington Street Columbia, South Carolina Attorneys for Petitioners I N D E X PAGE Citations to Opinions Below ......................................... 1 Jurisdiction .................................................................... 2 Questions Presented ...................................................... 2 Statutory and Constitutional Provisions Involved........ 3 Statement ........................................................................ 3 How the Federal Questions Were Raised and Decided 6 Reasons for Granting the W rit..................................... 10 I. The Decision Below Conflicts With Prior De cisions of This Court Which Condemn the Use of State Power to Enforce Racial Segregation 10 II. The Decision Below Conflicts With Decisions of This Court Securing the Right of Freedom of Expression Under the Fourteenth Amend ment to the Constitution of the United States 16 Conclusion ...................................................................... 27 A p p e n d ix Opinion of the Columbia Recorder’s Court.................. la Opinion of the Richland County C ourt.......................... 3a Opinion of the Supreme Court of South Carolina........ 10a Denial of Rehearing by the Supreme Court of South Carolina....................................................................... 14a 11 Table of Cases PAGE Abrams v. United States, 250 U. S. 616......................... 17 Boynton v. Virginia, 364 U. S. 454 ................................ 11 Breard v. Alexandria, 341 U. S. 622 ...... ...............—14,17 Buchanan v. Warley, 245 U. S. 6 0 ................................ 12 Burton v. Wilmington Parking Authority, 365 U. S. 715 ............................................................................... 13 Cantwell v. Connecticut, 310 U. S. 296 ........................... 26 Champlin Rev. Co. v. Corporation Com. of Oklahoma, 286 U. S. 210.............................................................. 26 Chaplinsky v. New Hampshire, 315 U. S. 568 .............. 25 City of Charleston v. Mitchell, —— S. C. ----- , 123 S. E. 2d 512 (Petition for Writ of Certiorari No. 846 filed 30 U. S. L. Week 3324) ................................... 10,11 City of Columbia v. B arr,----- S. C .------ , 123 S. E. 2d 521 (Petition for Writ of Certiorari No. 847 filed 30 U. S. L. Week 3324) ............................................ 10,11 City of Greenville v. Peterson, ----- S. C. ——, 122 S. E. 2d 826 (Petition for Writ of Certiorari No. 750 filed 30 U. S. L. Week 3274) ................................9,11, 21 Civil Rights Cases, 109 U. S. 3 ................................... 11,15 District of Columbia v. John R. Thompson Co., 346 IJ. S. 100...................................................................... 13 Freeman v. Retail Clerks Union, Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ................ 18 Garner v. Louisiana, 368 U. S. 157 ...... 13-14,15,16,18, 26 Goldblatt v. Town of Hempstead, 30 U. S. L. Week 4343 12 Ill PAGE Herndon v. Lowry, 301 U. S. 242 ........................... .23, 24, 25 Hudson County Water Co. v. McCarter, 209 U. S. 349 16 Lanzetta v. New Jersey, 306 U. S. 451 ........................ 22, 24 Mapp v. Ohio, 367 U. 8. 643 ..................................... . 14 Marsh v. Alabama, 326 U. S. 501...................................12,18 Martin v. Struthers, 319 U. S. 141 ................................ 17 McBoyle v. United States, 283 U. S. 25 .......................23, 25 Monroe v. Pape, 365 U. S. 167 ..................................... 11 Munn v. Illinois, 94 U. S. 113......................................... 12 N. A. A. C. P. v. Alabama, 357 U. S. 449 ....................... 17 Napue v. Illinois, 360 H. S. 264 ................................... 11 N. L. E. B. v. American Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945) .................................................. 18 N. L. E. B. v. Fansteel Metal Corp., 306 U. S. 240 ........ 18 People v. Barisi, 193 Misc. 934, 83 N. Y. S. 2d 277 (1948) 18 People v. King, 110 N. Y. 419, 18 N. E. 245 (1888), Annotation 49 A. L. E. 505 ..................................... 13 Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49 A. L. E. 449 (1926) ..................................... .............. 13 Pierce v. United States, 314 U. S. 206 ........................ 22, 24 Poe v. Ullman, 367 U. S. 497 ......................................... 14 Eailway Mail Assn. v. Corsi, 326 U. S. 88..................... 13 Bepublic Aviation Corp. v. N. L. E. B., 324 U. S. 793....12,18 Schenck v. United States, 249 U. S. 4 7 ........................ 19 Screws v. United States, 325 U. S. 91............................ 11 Shelly v. Ivraemer, 334 U. S. 1 ................. ................... 11,12 Shramek v. Walker, 149 S. E. 331.................................. 8 State v. Gray, 76 S. C. 83 .............................................. 20 IV PAGE State v. Green, 35 S. C. 266 ................................... 20 State v. Hallback, 40 S. C. 298 ....................................... 20 State of Maryland v. Williams, Baltimore City Court, 44 Lab. Bel. Bef. Man. 2357 (1959) .......................... 18 State v. Mays, 24 S. C. 190........................................... 20 State v. Tenney, 58 S. C. 215......................................... 20 Stromberg v. California, 283 U. S. 359 ......................... 17 Thompson v. City of Louisville, 362 U. S. 199.............. 21 Thornhill v. Alabama, 310 U. S. 88 .........................14,17,18 United States v. Cardiff, 344 U. S. 174 .......................23, 24 United States v. L. Cohen Grocery Co., 255 U. S. 81....23, 24 United States v. Weitzel, 246 U. S. 533 ......................... 23 United States v. Willow Biver Power Co., 324 U. S. 499 ............................................................................... 12 United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 23 Western Turf Asso. v. Greenberg, 204 U. S. 359 .......... 13 West Virginia State Board of Education v. Barnette, 319 U. S. 624 ......... ..................................................... 17 Winters v. New York, 333 U. S. 507 .......................... 25, 26 Statutes Code of Laws of South Carolina, 1952, Section 15-909 .... 5, 7, 8 Code of Laws of South Carolina, 1952, Section 16-386 .... 3, 5, 6, 7, 8, 9 Code of Laws of South Carolina, 1960, Section 16-386 .... 21, 25 United States Code, Title 28, Section 1257(3) .............. 2 V Other Authorities PAGE Ballentine, “Law Dictionary” (2d Ed. 1948) ................ 25 Black’s “Law Dictionary” (4th Ed. 1951) ..................... 25 Henkin, “Shelley v. Kraemer: Notes for a Revised Opinion,” 110 U. of Penn. L. Rev. 473 ............... 12,13,14 Konvitz, “A Centnry of Civil Rights” .......................... 13 I n th e Bnpnm$ (Emtrt of tip llnttefi Octobee Term, 1961 No................ Simon B otjie and T almadge J. Neal, Petitioners, —v.— City oe Columbia. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA Petitioners pray that a writ of certiorari issue to review the judgment of the Supreme Court of South Carolina, entered in the above entitled case on February 13, 1962, rehearing of which was denied on March 7, 1962. Citation to Opinions Below The opinion of the Supreme Court of South Carolina is unreported as of yet and is set forth in the appendix hereto, infra, pp. 10a-13a. The opinion of the Richland County Court is unreported and is set forth in the appendix hereto, infra, pp. 3a-9a. The opinion of the Recorder’s Court of the City of Columbia is unreported and is set forth in the appendix hereto, infra, pp. la-2a. 2 Jurisdiction The Judgment of the Supreme Court of South Carolina was entered February 13, 1962, infra, pp. 10a-13a. Petition for Behearing was denied by the Supreme Court of South Carolina on March 7, 1962, infra, p. 14a. The jurisdiction of this Court is invoked pursuant to Title 28, United States Code, Section 1257(3), petitioners having asserted below and asserting here, deprivation of rights, privileges and immunities secured by the Constitu tion of the United States. Questions Presented 1. Whether the due process and equal protection clauses of the Fourteenth Amendment permit a state to use its executive and judiciary to enforce racial discrimination in conformity with a state custom of discrimination by arresting and convicting petitioners of criminal trespass on the premises of a business which has for profit opened its property to the general public. 2. Whether petitioners’ conviction of trespass at the restaurant of a variety store offends the due process clause of the Fourteenth Amendment when petitioners were con victed for engaging in a sit-in protest demonstration and the criminal statute applied to convict petitioners gave no fair and effective warning that their actions were pro hibited, and their conduct violated no standard required by the plain language of the law or any earlier inter pretation thereof. 3 S tatu to ry and C onstitu tional P rovisions Involved 1. This case involves Section 1 of the Fourteenth Amend ment to the Constitution of the United States. 2. This case also involves Section 16-386, Code of Laws of South Carolina for 1952, as amended, which states: Entry on lands of another after notice 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 mis demeanor and be punished by a fine not to exceed one hundred dollars or by imprisonment with hard labor on the public works of the county for not exceeding thirty days. When any owner or tenant 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 afore said for the purpose of trespassing. Statement At approximately 11:00 A.M. on March 14, 1960, peti tioners, two Negro college students entered the Eckerd’s Variety Store in Columbia, South Carolina (R. 36, 49). They seated themselves at a booth in the food department and sought service (R. 7, 31, 33, 35, 49, 52). Both testified they had money with which to purchase food (R. 3, 16, 38, 48, 51, 55). No one spoke to the petitioners or ap proached them to take their order for food (R. 31, 32, 38). After petitioners were seated an employee of the store 4 put up a chain with a “No Trespassing” sign (R. 35). Peti tioners testified that white persons were seated in the food department and were being served food at this time (R. 36, 37, 53, 54). They continued to sit in the booth for some fifteen or twenty minutes (R. 30, 49). While waiting ser vice, petitioners sat each with an open book before him (R. 3, 16, 38, 51). The manager of Eckerd’s called the Columbia police (R. 32) who arrived and proceeded with the manager directly to the booth where petitioners were seated (R. 3, 6). The manager told petitioners to leave “ . . . because we aren’t going to serve you” (R. 3, 12). Petitioners remained seated and the Chief of Police then asked petitioners to leave (R. 3, 50). When petitioners did not comply the Chief of Police placed them under arrest (R. 3, 13). Bouie asked the Chief of Police “for what” (R. 4, 5, 12). The Chief then “reached and got him by the arm . . . and . . . had to pull him out of the seat” (R. 4). The Chief then seized him by the belt, gave him a “preliminary frisk,” and marched him out of the store (R. 4, 17, 51). Bouie testified that he offered no resistance and told the Chief “That’s all right, Sheriff, I ’ll come on” (R. 51). The Chief was asked on cross examination: Q. “Chief, isn’t it a fact that the only reason you were called in from the Police Department to arrest these two persons, was because they were Negroes who were asking for srvice (sic) in the food department in Eckerd’s drug store, and the manager was directing them out because they were Negroes? Isn’t that correct?” A. “Why certainly, I would think that would be the case” (R. 20, 21). Eckerd’s, one of Columbia’s larger variety stores is part of a regional chain with numerous stores located through out the South (R. 19, 29). In addition to the food depart- 5 ment, Eckerd’s maintains other departments including retail drug, cosmetic and prescriptions (R. 20, 29). Negroes and whites are invited to purchase and are served alike in all departments of the store with the single exception that Negroes “have never been” served in the food department which is reserved for whites (R. 29, 30, 52). Negroes are not served in the food department because as the store manager put it, “ . . . all the stores do the same thing” (R. 31). There was, however, no evidence that any signs or notices are present in the store indicating that Negroes are not served at the lunch counter. Throughout the events that led to their arrest, petitioners were completely orderly and peaceful (R. 9, 35). Petitioners were charged with trespass in violation of Section 16-386 as amended of the Code of Laws of South Carolina, infra, p. 10a. Section 16-386 states: Entry on lands of another after notice 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 he punished by imprisonment with hard labor on the public works of the county for not exceeding thirty days. When any owner or tenant 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 he deemed and taken as notice conclusive against the person making entry as aforesaid for the purposes of trespassing.” Petitioners were also charged with breach of the peace in violation of Section 15-909, Code of Laws of South Caro- 6 lina, 1952, infra, p. 10a. Petitioner Bouie was also charged with the common law crime of resisting arrest, infra, p. 10a. Petitioners were tried in the Recorder’s Court of the City of Columbia without a jury and convicted of trespass in violation of Section 16-386 and sentenced to pay fines of $100.00 or serve thirty days in jail, $24.50 of the fines being suspended. Petitioner Bouie was convicted of resist ing arrest and fined $100.00 or thirty days, $24.50 of the fine being suspended. Bouie’s sentences were to run consecu tively (R. 62, 63). Petitioners appealed to the Richland County Court which sustained the judgments and sentences of the Recorder’s Court of the City of Columbia on April 28, 1961, infra, pp. 3a-9a. Petitioners thereupon appealed to the Supreme Court of South Carolina which affirmed the judgment of convic tion of trespass in violation of Title 16, Section 386 of the 1952 Code of Laws of South Carolina, as amended, and reversed the judgment of conviction against petitioner Bouie for resisting arrest on February 13, 1962, infra, pp. 10a-13a. The Supreme Court of South Carolina denied rehearing on March 7, 1962, infra, p. 14a. How the Federal Questions Were Raised and Decided Below At the close of the Prosecution’s case in the Recorder’s Court of the City of Columbia, petitioners moved to dis miss the charges against them on the grounds, inter alia, that (R. 25, 26, 65-66): “ . . . for the State to stand idly by and allow a private individual in public business to discriminate against the defendants on the basis of race and color alone 7 and then for the State to back up this discrimination by State action in ejecting, arresting and subjecting to trial these defendants is a denial of due process of law and a denial of the equal protection of the laws as guaranteed by the 14th Amendment of the United States Constitution. The defendants move to dismiss the charges of tres pass and breach of the peace, in violation of State Statutes Section 16-386 and 15-909, on the ground that evidence proves that the defendants were merely at tempting to exercise their rights as business invitees of a business catering to the general public to exercise the freedom of being served by said business on a non-discriminating basis without regard to race and color and in so doing were not guilty of any crime. Further, the defendants move to dismiss all charges against them on the ground that to deprive them of their liberty to enter such a business establishment as the record describes and be served as others, and that to be ejected and arrested by agents of the State —the police—solely on the basis of race and color, and to be singled out as the only persons ejected while others remain, is a denial of due process of law and the equal protection of the laws as guaranteed by the 14th Amendment of the United States Constitution.” The motion was overruled by the trial Court (R. 26). Petitioners moved to dismiss the charges against them on the same grounds at the close of trial (R. 60, 63-66). This motion was denied by the trial Court (R. 60, 61-63). Subsequent to judgment of conviction in the trial Court petitioners moved for arrest of judgment or in the alterna tive a new trial on the ground that: 8 “ . . . State Code No. 16-386, as amended, trespass and State Code No. 15-909, breach of peace, though constitutional on their faces, are as to these defen dants, unconstitutionally applied, thus denying to these defendants due process of law and equal protection of the laws, in violation of the 14th Amendment of the United States Constitution . . . ” (R. 68). The motion for arrest of judgment or in the alternative for a new trial was supported by the same grounds as petitioners’ motions to dismiss (R. 68-69). This motion was denied by the trial Court (R. 61). Petitioners appealed to the Richland County Court re newing the constitutional objections to their convictions relied upon in the trial Court. The Richland County Court held that the proprietor of a restaurant can choose his customers on the basis of color without violating consti tutional provisions and that in aiding his policy of exclu sion the State of South Carolina was not enforcing racial discrimination (R. 71, 74). The Court also held: The Defendants, under South Carolina law, had no right to remain in the stores after the manager asked them to leave. Shramek v. Walker, 149 S. E. 331, 152 S. C. 88. As the Court quoted the rule, “while the entry by one person on the premises of another may be lawful, by reason of express or implied invitation to enter, his failure to depart, on the request of the owner, will make him a trespasser, and justify the owner in using reasonable force to eject him” (R. 72-73). Petitioners appealed to the Supreme Court of South Carolina claiming error in that the Court below refused (R. 76, 77): 9 “ . . . to hold that the evidence shows conclusively that the arresting officers acted in the furtherance of a custom, practice and policy of discrimination based solely on race or color, and that the arrests and con victions of appellants under such circumstances are a denial of due process of law and the equal protection of the laws, secured to them by the Fourteenth Amend ment to the United States Constitution. 4. The Court erred in refusing to hold that the evidence establishes merely that at the time of their arrests appellants were peaceably upon the premises of Eckerd’s drug store as customers, visitors, busi ness guests or invitees of a business establishment performing economic functions invested with the public interest, and that the procurement of the arrest of appellants by management of said establishment under such circumstances in furtherance of a custom, prac tice and policy of racial discrimination is a violation of rights secured appellants by the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.” The Supreme Court of South Carolina affirmed peti tioners’ conviction of trespass in violation of Title 16- Section 386, as amended, of the 1952 Code of Laws of South Carolina, holding that appellants’ contention that “arrest by the police officer at the instance of the store manager, and the convictions of trespass that followed, were in furtherance of an unlawful policy of racial dis crimination and constituted state action in violation of appellants’ right under the Fourteenth Amendment” had been made, considered and rejected previously by the Court. The cases relied upon by the Supreme Court of South Carolina were City of Greenville v. Peterson, ----- S. C. ——, 122 S. E. (2d) 826 (Petition for Writ of Certiorari 10 No. 750 filed 30 U. S. L. Week 3274); City of Charleston v. Mitchell, ------ S. C. ---- , 123 S. E. (2d) 512 (Petition for Writ of Certiorari No. 846 filed 30 IT. S. L. Week 3324); City of Columbia v. B arr,----- S. C. ----- , 123 S. E. (2d) 521 (Petition for Writ of Certiorari No. 847 filed 30 U. S. L. Week 3324). The Supreme Court of South Carolina reversed peti tioner Bouie’s conviction for resisting arrest on the ground that the “momentary delay” of petitioner in responding to the officer’s command did not amount to “resistance.” REASONS FOR GRANTING THE WRIT I. The D ecision Below Conflicts W ith Prior Decisions o f This Court W hich Condemn the Use o f State Power to Enforce Racial Segregation. Petitioners were not served in Eckerd’s because they were Negroes and the custom of the City of Columbia is that Negroes may not he served at restaurants which also cater to whites (R. 31). See Petition for Writ of Certiorari in City of Columbia v. Barr, et at., No. 847 filed in this Court 30 U. S. L. Week 3324. As the store manager put it “all stores do the same thing” (R. 31). It is also apparent that the arrests were made to support this discrimination. On cross examination the arresting officer was asked: Q. “Chief, isn’t it a fact that the only reason you were called in from the Police Department to arrest these two persons was because they were Negroes who were asking for srvice (sic) in the food department in Eckerd’s drug store, and the manager was directing them out because they were Negroes'? Isn’t that cor- 11 rectf” A. “Why certainly, I would think that would he the case” (B. 20, 21). The trial court convicted petitioners on evidence plainly indicating that race and race alone was the reason they were ordered to leave the restaurant. The Supreme Court of South Carolina recognized the issue in this case to he whether police and judicial enforce ment of Eckerd’s racial discrimination policy violated the equal protection clause of the Fourteenth Amendment. " . . . the contention [is] that appellants’ arrest hy the police officer at the instance of the store manager, and the convictions of trespass that followed, were in fur therance of an unlawful policy of racial discrimination and constituted state action in violation of appellants’ rights under the Fourteenth Amendment” (infra, p. 12a). It answered this question contrary to petitioners’ posi tion hy relying upon cases, involving similar issues, which are now pending before this Court, e.g. Columbia v. Barr, ----- g. C .----- 123 S. E. 2d 521, No. 847 October Term, 1961; City of Greenville v. Peterson, ----- S. C. ----- , 122 S. E. 2d 826 (No. 750, October Term, 1961); Charleston v. Mitchell,----- S. C .------ , 123 S. E. 2d 512 (No. 846 October Term, 1961). But the decision is contrary to a growing body of prin ciples declared by this Court. Where there is state action by the police, Screws v. United States, 325 U. S. 91; Monroe v. Pape, 365 U. S. 167; prosecutors, Napue v. Illinois, 360 U. S. 264, and judiciary, Shelly v. Kraemer, 334 U. S. 1, 14-18; Boynton v. Virginia, 364 U. S. 454, racial discrimina tion supported by state authority violates the Fourteenth Amendment. Civil Rights Cases, 109 U. S. 3, 17. 12 It is asserted, however, that the state is not enforcing racial discrimination, hat is implementing a property right. But to the extent that management was asserting a “prop erty” right to enforce racial segregation according to the custom of the City of Columbia, it becomes pertinent to inquire just what that property right is. See Henkin, “Shelley v. Kraemer: Notes for a Revised Opinion,” 110 U. of Penn. L. Rev. 473, 494-505. The mere fact that “property” is involved does not settle the matter, Shelly v. Kraemer, 334 U. S. 1, 22. “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; cf. Munn v. Illinois, 94 U. S. 113; Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793, 796, 802; Goldblatt v. Town of Hempstead, 30 U. S. L. Week 4343. Eckerd’s is a commercial variety store open to the public generally for the transaction of business, including the sale of food and beverages in its restaurant. It does not seek to keep everyone, or Negroes, or these petitioners from coming upon the premises. The white public is invited to use all the facilities of the store and Negroes are invited to use all these facilities except the restaurant. The man agement does not seek to exclude petitioners because of an arbitrary caprice, but rather, follows the community custom of Columbia which is, in turn, supported and nourished by law. The portion of the store from which petitioners are excluded is not set aside for private or non-public use as an office reserved for the management or lounge or private restroom for employees. Petitioners did not seek to use the restaurant for any function inappropriate to its normal use. They merely sought food service. Therefore, it ap pears that the property interest which the State protects 13 here, by arrest, prosecution, and criminal conviction, is the claimed right to open the premises to the public gen erally, including Negroes, for business purposes, including the sale of food and beverages, while racially discriminating against Negroes, as such, at one integral part of the facili ties. While this may, indeed, be a property interest, the question before this Court is whether the State may enforce it without violating the Fourteenth Amendment. This prop erty interest certainly may be taken away by the State without violating the Fourteenth Amendment. Western Turf Asso. v. Greenberg, 204 U. S. 359; Railway Mail Assn. v. Corsi, 326 U. S. 88; Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49 A. L. E. 499 (1926); People v. King, 110 N. Y. 419, 18 N. E. 245 (1888); Annotation 49 A. L. E. 505; cf. District of Columbia v. John R. Thompson Co., 346 U. S. 100; Henkin, supra at p. 499 n. 52. Many states make it a crime to engage in the racially discriminatory use of private property which South Caro lina enforces here. For the latest collection of such statutes, see Konvitz, A Century of Civil Rights (1961), passim. Indeed, Eckerd’s has sought to achieve in this case some thing which the State itself could not permit it to do on state property leased to it for business use. Burton v. Wilmington Parking Authority, 365 U. S. 715, or require or authorize it to do by positive legislation. See Mr. Justice Stewart’s concurring opinion in Burton, supra. Although it does not necessarily follow from the fact that some states constitutionally may make racial discrimina tion on private property criminal, that other states may not enforce racial discrimination, it does become evident that Eckerd’s property interest is hardly inalienable or absolute. Basic to the disposition of this case is that Eckerd’s is a public establishment open to serve the public as a part of the public life in the community. See Garner v. Louisiana, 14 368 U. S. 157, 176, Mr. Justice Douglas concurring. The case involves no genuine claim that Eckerd’s right to “pri vate” use of its property was interfered with by petitioners. To uphold petitioners’ claims here affects only slightly the entire range of what are called private property rights. For if Eckerd’s is disabled by the Fourteenth Amendment from enforcing by state action racial bias at its public lunch counter, homeowners are hardly disabled from en forcing their private rights even to implement racial preju dices. See Henkin, supra at pp. 498-500. There is a con stitutional right of privacy protected by the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 IT. S. 643, 6 L. ed. 2d 1081, 1080, 1103, 1104; see also Poe v. Ullman, 367 U. S. 497, 6 L. ed. 2d 989, 1006, 1022-1026 (dissenting opinions). This Court has recognized the re lationship between right of privacy and property interests. Thornhill v. Alabama, 310 U. S. 88, 105-106; Breard v. Alexandria, 341 IT. S. 622, 626, 638, 644. Only a very abso lutist view of the property right to determine who may come or stay on one’s property on racial grounds would require that a unitary principle apply to the whole range of property uses, public connections, dedications, and pri vacy interests which may be at stake. Petitioners certainly do not contend that the principles urged to prevent the use of trespass laws to enforce racial discrimination in a restaurant operated for profit as a public business would prevent the state from enforcing a similar bias in a private home or office where the right of privacy has its greatest meaning and strength.1 As Mr. Justice Holmes stated in Hudson County Water Co. v. McCarter, 209 IT. S. 349, 355: /T h e right of privacy cannot be destroyed by resort to the niceties of property law. Chapman v. United States, 365 U. S. 610, 617. “Rights of liberty and property, of privacy and voluntary association, must be balanced, in close cases, against the right not to have the state enforce discrimination . . . ” Henkin, “Shelley v. Kraemer: Notes for a Revised Opinion,” 110 U. of Penn L Rev. 473, 496, 490-505. 15 All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. Where a right of private property is asserted by a pro prietor so narrowly as to claim state intervention only in barring Negroes from a single portion of a public es tablishment, and that restricted assertion of right collides with the great immunities of the Fourteenth Amendment, petitioners respectfully submit that the propery right is no right at all. Moreover, the assertion of racial prejudice here is not “private” at all. The segregation here enforced is that demanded by custom of the City of Columbia. While “cus tom” is referred to in the Civil Rights Cases as one of the forms of state authority within the prohibitions of the Fourteenth Amendment, 109 U. S. 3, 17 (see also Mr. Justice Douglas concurring in Garner v. Louisiana, 368 U. S. 157, 179, 181), Columbia’s custom exists in a context of massive state support of racial segregation.2 2 See S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 repealing S. C. Const. Art. 11, §5 (1895) (which required legis lature to maintain free public schools). S. C. Code §§21-761 to 779 (regular school attendance) repealed by A. & J. R. 1955 (49) 85; §21-2 (appropriations cut off to any school from which any pupil transferred because of court order; §21-230(7) (local trustees may or may not operate schools); §21-238 (1957 Supp.) (school offi cials may sell or lease school property whenever they deem it expedient) ; S. C. Code §40-452 (1952) (unlawful for cotton textile manufacturer to permit different races to work together in same room, use same exits, bathrooms, etc., $100 penalty and/or imprisonment at hard labor up to 30 days; S. C. A. & J. R. 1956 16 Consequently, we have here state-nurtured and state- enforced racial segregation in a public institution con cerning which no property right may be asserted in the face of the Fourteenth Amendment’s prohibition of state enforced racial segregation. This state enforced segrega tion conflicts with Fourteenth Amendment principles which have been consistently asserted by this Court. II. The D ecision Below Conflicts With D ecisions o f This Court Securing the Right o f Freedom of Expression Under the Fourteenth Amendment to the Constitution of the United States. Petitioners were engaged in the exercise of free ex pression by means of nonverbal requests for nondiscrim- inatory food service which were implicit in their con tinued remaining in the food department 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. Peti tioners’ expression (seeking service) was entirely appro priate to the time and place at which it occurred. Peti tioners did not shout, obstruct the conduct of business, or engage in any expression which had that effect. There p ° \ Park inv°lved in desegregation su it) ; S. C. Stafp p J \ (Supp.) (providing for separate btate Parks); §51-181 (separate recreational facilities in cities with population m excess of 60,000); §5-19 (separate entrances at circus); S. C. Code Ann. Tit. 58, §§714-720 (1952) (segregation m travel facilities). On April 5, 1962, the City of Greenville, bouth Carolina arrested and charged a Negro with the crime of violating Sec 31.10. The Code of City of Greenville S. C. 1953. Be Unlawful for Colored person to occupy Residence in White Block (arrest and trial warrant No. 179, City v. Robinson). Cf Buchanan v. Warley, 245 U. S. 60. 17 were no speeches, picket signs, handbills or other forms of expression in the store which were possibly inappro priate 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. Their protest demonstration was a part of the “free trade in ideas” (Abrams v. United States, 250 U. S. 616, 630, Holmes, J., dissenting), and was within the range of lib erties protected by the Fourteenth Amendment, even though nonverbal. Stromberg v. California, 283 U. S. 359 (display of red flag); Thornhill v. Alabama, 310 U. S. 88 (picketing); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 633-624 (flag salute); N. A. A. C. P. v. Alabama, 357 U. S. 449 (freedom of association). Petitioners do not urge that there is a Fourteenth Amend ment right to free expression on private property in all cases or circumstances without regard to the owner’s pri vacy, and his use and arrangement of his property. This is obviously not the law. In Breard v. Alexandria, 341 IT. S. 622 the Court balanced the “householder’s desire for pri vacy and the publisher’s right to solicit on a door-to-door basis. But cf. Martin v. Struthers, 319 IT. S. 141 where different kinds of interests were involved with a correspond ing difference in result. The character of petitioners’ right to free expression is not defined merely by reference to the fact that private property rights are involved. The nature of the property rights asserted and of the state’s participation through its officers, its customs, and its creation of the property interest, have all been discussed above in connection with the state action issue as it related to racial discrimination. Similar considerations should aid in resolving the free expression question. 18 In Garner v. Louisiana, Mr. Justice Harlan, concurring, found a protected area of free expression on private prop erty on facts regarded as involving “the implied consent of the management” for the sit-in demonstrators to remain on the property. It is submitted that even absent the owner’s consent for petitioners to remain on the premises of this business establishment, a determination of their free expression rights requires consideration of the totality of circumstances respecting the owner’s use of the property and the specific interest which state judicial action is sup porting. Marsh v. Alabama, 326 U. S. 501. In Marsh, swpra, this Court reversed trespass convictions of Jehovah’s Witnesses who went upon the privately owned streets of a company town to proselytize for their faith, holding that the conviction violated the Fourteenth Amend ment. In Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793, the Court upheld a labor board ruling that lacking special circumstances employer regulations forbidding all union solicitation on company property constituted unfair labor practices. See Thornhill v. Alabama, supra, involving picketing on company-owned property; see also N. L. R. B. v. American Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); and compare the cases mentioned above with N. L. R. B. v. Fansteel Metal Corp., 306 U. S. 240, 252, con demning an employee seizure of a plant. In People v. Barisi, 193 Misc. 934, 83 N. Y. S. 2d 277, 279 (1948) the Court held that picketing within Pennsylvania Railroad Station was not a trespass; the owners opened it to the public and their property rights were “circumscribed by the constitutional rights of those who use it.” See also Freeman v. Retail Clerks Union, Washington Superior Court, 45 Lab. Eel. Ref. Man. 2334 (1959); and State of Maryland v. Williams, Baltimore City Court, 44 Lab Eel Ref. Man. 2357, 2361 (1959). 19 In the circumstances of this case the only apparent state interest being subserved by this trespass prosecution, is support of the property owner’s discrimination in con formity to the State’s segregation custom and policy. This is all that the property owner has sought. Where free expression rights are involved, the question for decision is whether the relevant expressions are “in such circumstances and . . . of such a nature as to create a clear and present danger that will bring about the sub stantive evil” which the state has the right to prevent. Schenck v. United States, 249 U. S. 47, 52. The only “sub stantive evil” sought to be prevented by this trespass prosecution is the elimination of racial discrimination and the stifling of protest against it; but this is not an “evil” within the State’s power to suppress because the Fourteenth Amendment prohibits state support of racial discrimination. The fact that the arrest and conviction were designed to short circuit a bona fide protest is strengthened by the necessity of the state court to make a strained and novel interpretation of the statute in order to bring petitioners’ conduct within its ambit. Petitioners’ conviction for tres pass rests on an interpretation which flies in the face of the plain words of the statute, all prior applications, and ignores the most recent legislative amendment to said statute. The trespass statute prior to amendment read: Every entry upon the 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 ex ceed one hundred dollars or by imprisonment with hard labor on the public works of the county for not exceeding thirty days. When any owner or tenant of any lands shall post a notice in four conspicuous places on the borders of such land prohibiting entry thereon and shall publish once a week for four consecutive 20 weeks such notice in any newspaper circulating in the county in which such lands are situated, a proof of the posting and of publishing of such notice within twelve months prior to entry shall be deemed and taken as notice conclusive against the person making entry as aforesaid for the purpose of hunting or fishing on such land. (Code of Laws, South Carolina, 1952.) The amended statute under which petitioners’ convictions were had added the language which is italicized: Every entry upon the lands of another where any horse, mule, cow, hog or any other livestock is pas tured, or any other lands of another . . . The Legislature obviously limited the statute to trespass on land primarily used for farm purposes. Petitioners have been able to find no cases under the instant criminal statute or its predecessors in which the trespass punished was not for entry on land (generally farm land) or some adjunctive land such as on the road.3 See State v. Green, 35 S. C. 266; State v. Mays, 24 S. C. 190; State v. Tenney, 58 S. C. 215; State v. Hallback, 40 S. C. 298; State v. Gray, 76 S. C. 83 (all cases of trespass on land or specifically farm land). The amendment was merely declaratory, mak ing explicit on the face of the statute the prior applications. The action of the court below in extending the statute to business premises, is, therefore, completely novel and un supported by prior cases or the recent amendment. 3 The only exceptions being sit-in convictions presently pending before this Court, Columbia v. Barr et al., 123 S. E. 2d 521 (1961) (Petition for Certiorari No. 847 filed 30 U. S. L. Week 3324) ; Charleston v. Mitchell, et al., 123 S. E. 2d 512 (1961) (Petition for Certiorari No. 846 filed 30 U. S. L. Week 3324), which were decided subsequent to the events which led to petitioners’ arrest and conviction. 21 Further, the statute in terms prohibits only going on the land of another after being forbidden to do so. The Supreme Court of South Carolina has now construed the statute to prohibit also remaining on property when di rected to leave the following lawful entry. In short, the statute is now applied as if “remain” were substituted for “enter.” There is no history to support this second novel construction of the statute. No South Carolina case has ever adopted such a construction.4 See Note 3, supra p. 20. Subsequent to petitioners’ conviction the legislature of the State of South Carolina enacted into law Section 16- 388 a trespass statute making criminal failing and refus ing “to leave immediately upon being ordered or requested to do so” the premises or place of business of another. See Petition for Writ of Certiorari in Peterson, et al. v. City of Greenville, No. 750 filed in this Court, 30 U. S. L. Week 3276. There is no question but that petitioners and all Negroes were welcome in Eekerd’s—apart from the restaurant (R, 29). The restaurant is an integral part of the store and can only be reached by “entry” into the store proper— to which petitioners were admittedly invited (R. 29). Ab sent the special expansive interpretation given Section 16- 386 by the Supreme Court of South Carolina, 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 4 As authority for this construction the South Carolina Courts cite Shramek v. Walker, 152 S. C. 88, 149 S. E. 331, which was a civil suit for trespass. But civil and criminal trespass have long been distinguished, the latter requiring, at common law, special circumstances such as breach of the peace. Bex v. Storr, 3 Burr. 1698. Cf. American Law Institute, Model Penal Code, Tentative Draft No. 2, §206.53, Comment. 22 process of law as a conviction resting upon no evidence of guilt. There was obviously no evidence that petitioners entered the premises “after notice . . . prohibiting such entry” 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. Peti tioners submit, however, that this statute lias been judi cially expanded to the extent that it does not give a fair and effective warning of the acts it now prohibits. Because of the expansive construction, the statute now reaches more than its words fairly and effectively define, and therefore, as applied it 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 re quires that criminal statutes be sufficiently explicit to in form 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. 206, 311: . . . judicial enlargement of a criminal act by interpre tation is at war with a fundamental concept of the com mon law that crimes must be defined with appropriate definiteness. Cf. Lametta v. New Jersey, 306 U. S. 451, and cases cited. 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 of 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 obtain ing permission of the owner.” The Court said in Cardiff, at 344 U. S. 174, 176-177, The vice of vagueness in criminal statutes is the treach ery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid (cf. United States v. L. Cohen Gro cery Co., 255 U. S. 81) may be as much of a trap for the innocent as the ancient laws of Caligula. We can not sanction taking a man by the heels for refusing to grant the permission which this Act on its face ap parently gave him the right to withhold. That would be making an act criminal without fair and effective no tice. 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 run a uniform appli cation of the rule expresed by Chief Justice Marshall: It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated (id. 18 U. S. (5 Wheat.) at 96). The cases discussed above involved federal statutes con cerning which this Court applied a rule of construction 24 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., 255 U. S. 81 and Herndon v. Lowry, 301 U. S. 242. On its face the South Carolina trespass statute warns against a single act, i.e., entry upon the land of another “after” notice prohibiting such. “After” connotes a se quence of events which by definition excludes going on or entering property “before” being forbidden. The sense of the statute in normal usage negates its applicability to peti tioners’ act of going on the premises with permission and later failing to leave when directed. Petitioners do not contend for an unreasonable degree of specificity in legislative drafting. Some state trespass laws have recognized as distinct prohibited acts the act of going upon property after being forbidden and the act of re maining when directed to leave.5 South Carolina passed a statute punishing those who remain after being directed 5 See for example the following state statutes which do ef fectively differentiate between “entry” after being forbidden and “remaining” 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. I ll , §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 Stat utes 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. 25 to leave two months after petitioners’ conviction, Section 16-388, Code of Laws of South Carolina. See supra, p. 21. Converting, by judicial construction, the common English word “entry” into a word of art meaning “remain” or “trespass” has transformed the statute from one which fairly warns against one act into a law which fails to ap prise those subject to it “in language that the common world 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 “entry” support the proposition that it is synonymous with “tres pass” or “remaining.” While “entry” in the sense of going on and taking possession of land is familiar (Ballentine, “Law Dictionary” (2d Ed. 1948), 436; “Black’s Law Dic tionary” (4th Ed. 1951), 625), its use to mean remaining 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, supra. At the time of their arrest, petitioners were engaged in the exercise of free expression by verbal and nonverbal requests for nondiscriminatory lunch counter service, im plicit in their continued remaining at the lunch counter when refused service. If in the circumstances of this case free speech is to be curtailed, the least one has a right to expect is reason able notice in the statute under which convictions are ob tained. Winters v. New York, 333 L. S. 507. To uphold petitioners’ conviction by novel and enlarged construction of this statute is to violate the principle that when freedom of expression is involved conduct must be proscribed within a statute “narrowly drawn to define and punish specific 26 conduct as constituting a clear and present danger to a substantial interest of the State”, Cantwell v. Connecticut, 310 U. S. 296, 307, 308; Garner v. Louisiana, 368 U. S. 157, 185 (Mr. Justice Harlan concurring). If the Supreme Court of South Carolina can affirm the convictions of these petitioners by such a construction it has exacted obedience to a rule or standard that is so ambiguous and fluid as to be no rule or standard at all. Champlin Rev. Co. v. Corporation Com. of Oklahoma, 286 U. S. 210. But when free expression is involved, the standard of precision is greater; the scope of construction must, consequently, be less. If this is the case when a State court limits a statute it must a fortiori be the case when a State court expands the meaning of the plain language of a statute. Winters v. New York, 333 U. S. 507, 512. 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 expan sive construction of criminal laws which is embodied in the due process clause of the Fourteenth Amendment. 27 CONCLUSION W herefore , for the foregoing reasons petitioners re spectfully pray that the Petition for Writ of Certiorari be granted. Respectfully submitted, J ack Greenberg Constance Baker Motley J ames M. Nabrit, III Michael Meltsner 10 Columbus Circle New York 19, New York Matthew J . P erry L incoln C. J enkins, J r. 1107% Washington Street Columbia, South Carolina Attorneys for Petitioners APPENDIX APPENDIX Opinion o f the Recorder’s Court I n th e RECORDER’S COURT OF THE CITY OF COLUMBIA City of Columbia, •v.— S imon Bouie and T almadge J. Neal. The Court: I ’m prepared to hand down an opinion. In the ease of Stramack (?) v. Walker, 149 Southeastern, Mr. Justice Cothran, who is one of the ablest members of the Supreme Court of this State, wrote the opinion of the Court and that was decided on August 27, 1929. This was a suit for damages where an individual remained in a building after having been ordered by the owner to depart. He refused to leave the building and was forcibly ejected by the owner. In this case Mr. Justice Cothran, speaking for the Court, said: “The law is well settled as thus expressed in our own case of State v. Lazarus, 1, Mills, Constitution 34: “The Prosecutor having business to transact with him, had a right to enter his house but if he remained after having been ordered to depart, might have been put out of the house. The defendant using no more violence than was necessary to accomplish this object and showing to the satisfaction of the Court and the jury, that this was his object.” Now, I might add that in Second Ruling Case Law, 559, the law is stated very succinctly and very prop erly : “It is a well settled principle that the occupant of any house, store or other building, has the legal right to control 2a Opinion of the Recorder’s Court it and to admit whom he pleases to enter and remain there and that he also has the right to expel from the room or building anyone who abuses the privilege which has been thus given to him. Therefore, while the entry by one person on the premises of another may be lawful by reason of express or implied invitation to enter, his failure to depart on the request of the owner will make him a trespasser and justify the owner in using reasonable force to eject him.” That’s a quotation from Ruling Case Law and I think that law is well settled in South Carolina and I might say in the United States, and furthermore, under the case which I stated some time ago during the early part of the morning, the Circuit Court of Appeals has held that the private owner of a business has a perfect right to control it and to do business with anybody he pleases to do busi ness with. That applies not only to Howard Johnson but I think in the case involved, which is Eckerd’s, they’ve got a perfect legal right to do business and transact business with anybody they want to do business with, and if they invite them to leave and request them to leave and if they refuse to do it, then they have every right under the law to use such force as may be necessary to eject them. It is therefore the opinion of this Court that the defen dants are guilty, and the fine of the Court against Simon Bouie is $100.00 or 30 days, for trespassing, and I suspend $24.50 of that, and on resisting arrest, the fine of the Court is $100.00 or 30 days, of which amount the sum of $24.50 is suspended, said fines to run consecutively. The judgment of the Court is in the case of Talmadge J. Neal, the fine of the Court is that he pay a fine of $100.00 or serve 30 days, provided that the sum of $24.50 is sus pended. 3a Order o f the Richland County Court City of Columbia, S imon B ouie and T almadge J. Neal. These Appeals from the Recorder’s Court of The City of Columbia were orally argued together before me and taken under advisement. The facts are largely undisputed. All of the Defendants are Negroes. Eckerd’s Drug Store and Taylor Street Pharmacy are separate stores in The City of Columbia. Besides filling prescriptions, each sells drugs and sundries and has a section where lunch, light snacks and soft drinks are served. Trade is with the gen eral public in all the departments except the lunch depart ment where only white people are served. On one occasion, Bouie and Neal went into Eckerd’s and on another day the other Defendants went into the Taylor Street Pharmacy, sat down in the lunch department and waited to be served. All said they intended to be arrested. In each case, the manager of the store came up to them with a peace officer and asked them to leave. They refused to do so and were then placed under arrest and charged with trespass and breach of the peace. Bouie, in addition, was charged with resisting arrest. It is undenied that he resisted. Bouie and Neal were tried on March 25, 1960, and the other Defendants on March 30, 1960, before The Honorable John I. Rice, City Recorder of Columbia, without a jury; trial by jury having been waived by all the Defendants. 4a Order of the Richland County Court All the Defendants were convicted and sentenced and these appeals followed. Motions raising the constitutional questions were timely made. There are 16 grounds of Appeal in the Bouie and Neal proceeding and 13 grounds of appeal in the proceeding involving the other Defendants, raising the following ques tions : (1) Did the State deny Defendants, who are Negroes, due process of law and equal protection of the laws within the Federal and State Constitutions either by using its peace officers to arrest them or by charging them with violating Secs. 16-386 (Criminal Trespass) and 15-909 (Breach of Peace) of the Code of Laws of South Carolina, 1952, as amended, when they refused to leave a lunch counter when asked by the manager thereof to do so? (Bouie and Neal Nos. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, and 15; other Defendants, Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13.) (2) Was there any substantial evidence pointing to the guilt of the Defendants? (Bouie and Neal, No. 8; other Defendants, No. 7.) Since Defendants did not argue Bouie and Neal’s Excep tions 7, 9 and 16, I have considered them abandoned. The State has not denied Defendants equal protection of the laws or due process of law within the Federal or State Constitutional provisions. A lunch room is like a restaurant and not like an inn. The difference between a restaurant and an inn is ex plained in Alpaugh v. Wolverton, 36 S. E. (2d) 907 (Court of Appeals of Virginia) as follows: “The proprietor of a restaurant is not subject to the same duties and responsibilities as those of an inn keeper, nor is he entitled to the privileges of the latter. 28 A. Jr., Innkeepers, No. 120, p. 623; 43 C. J. S., Inn keepers, No. 20, subsection b, p. 1169. His responsi bilities and rights are more like those of a shopkeeper. 5a Order of the Richland County Court Davidson v. Chinese Republic Restaurant Co., 201 Mich. 389, 167 N. W. 967, 969, L. R. A. 1919 E, 704. He is under no common-law duty to serve anyone who applies to him. In the absence of statute, he may accept some customers and reject others on purely per sonal grounds. Nance v. Mayflower Tavern Inc., 106 Utah 517, 150 P. (2d) 773, 776; Nolle v. Iliggins, 95 Misc. 328, 158 N. Y. S. 867, 868.” And the proprietor can choose his customers on the basis of color without violating constitutional provisions. State v. Clyburn, 101 S. E. (2d) 295, 247 N. C. 455; Williams v. Howard Johnson’s Restaurant, 268 F. (2d) 845; Slack v. Atlantic Whitetower, etc., 181 F. Sup. 124 (Dist. Court Md.), 284 F. (2d) 746. In the Williams case, supra, Judge Soper, speaking for the Court of Appeals for The Fourth Circuit, said: “As an instrument of local commerce, the restaurant is not subject to the Constitution and statutory provisions above (Com merce Clause and Civil Rights Acts of 1875), and is at liberty to deal with such persons as it may select.” And in Boynton v. Virginia, ----- U. S. ----- , 81 S. Ct. 182, 5 L. Ed. (2d) 206, The Supreme Court of The United States took care to state: “Because of some of the arguments made here it is necessary to say a word about what we are not de ciding. We are not holding 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. We decide only this case, on its facts, where circumstances show that the terminal and restaurant operate as an integral part of the bus carrier’s trans portation service for interstate passengers.” 6a Order of the Richland County Court I have reviewed all of the eases cited by both the City and the Defendants, and in addition have reviewed subse quent cases of the Court of Appeals and The United States Supreme Court, including the case of Burton v. Wilming ton Parking Authority, handed down on April 17, 1961, and find none applicable or controlling except the Williams and Slack cases, supra. The Defendants, under South Carolina Law, had no right to remain in the stores after the manager asked them to leave. Shramek v. Walker, 149 S. E. 331, 152 S. C. 88. As the Court quoted the rule, “while the entry by one person on the premises of another may be lawful, by reason of express or implied invitation to enter, his failure to depart, on the request of the owner, will make him a trespasser, and justify the owner in using reasonable force to eject him.” If the manager could have ejected Defendants himself, he could call upon officers of the law to eject them for him. Since the Defendants refused to leave, they were crim inal trespassers under Sec. 15-909 of The Code of Laws of South Carolina, 1952, and their conviction was proper. Shelly v. Kraemer, 334 U. S. 1, 92 L. Ed. 845, 68 S. Ct. 836, 3 A. L. R. (2d) 441, and Barrows v. Jackson, 346 U. S. 249, 97 L. Ed. 1586, 73 Supreme Court 1031 cited by the Defendants are not in point. In both of these cases, there had been a sale of real estate to a non-caucasian in violation of restrictive covenants. In the Shelley case, the Court held that the equity of court of the State could not be used against the non-caucasian to enforce the covenant. In the Barrows case, the court held that the covenant could not be enforced by an action at law for damages against the co-covenanter, who broke the covenant. 7a Order of the Richland County Court In both of these cases, there were willing sellers and willing purchasers. The purchasers paid their money and entered into possession. Having entered, they had a right to remain. In the cases before the Court, there were no two willing parties to a contract. True, the Defendants wanted to buy, but the storekeeper did not want to sell and the Defendants had no right to remain after being asked to leave. A white person would not have the right to remain after being asked to leave either. In either case, a person would be a trespasser. The Constitutions provide for equal rights, not paramount rights. I have only to pick up my current telephone directory and look in the yellow pages to find at least four establish ments listed under “Restaurants” that advertise that they are for colored or for colored only. To say that a white proprietor may not call upon a police man to remove or arrest a Negro trespasser or a Negro proprietor cannot call upon a policeman to remove or ar rest a White trespasser would lead to confusion, lawless ness and possible anarchy. Certainly, the Constitutions intended no such result. The fundamental fallacy in the argument of Defendants is the classification of the stores and lunch counters as pub lic places and the operations thereof as public carriers. A person, whatever his color, enters a public place or carrier as a matter of right. The same person, whatever his color, enters a store or restaurant or lunch counter by invitation. That person’s right to remain in a public place depends upon the law of the land, and in a public carrier upon such law and such reasonable rules as the carrier may make, and, 8a Order of the Richland County Court under the Constitution, neither the law nor rules may dis criminate upon the basis of color. On the other hand, the same person has no right to enter a store, a restaurant, or lunch counter unless and until in vited, and may remain only so long as the invitation is extended. Whether he enters or remains depends solely upon the invitation of the storekeeper, who has a full choice in the matter. The operator can trade with whom he wills, or he can, at his own whim and pleasure, close up shop. There is no question but that the Defendants are guilty. They were asked to leave and they refused. They, there upon, were trespassers and such constituted a breach of the peace. In addition, Bouie admittedly resisted a lawful ar rest. The trespass statute (Section 16-386, as amended, Code of Laws of South Carolina, 1952) is not restricted to “pas ture or open hunting lands” as defendants argue. The stat ute specifically says “any other lands”. In Webster’s New International Dictionary, the definition of “land” in “Law” is as follows: “ (a) any ground, soil, or earth whatsoever, regarded as the subject of ownership, as meadows, pastures, 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 tenement or hereditament.” The statute thus applies everywhere and without discrim ination as to color. There is no question but that it was de signed to keep peace and order in the community. Since Defendants had notice that neither store would serve Negroes at their lunch counters, they were trespassers 9a Order of the Richland County Court ab initio. Aside from this, however, the law is that even though a person enters property of another by invitation, he becomes a trespasser after he has been asked to leave. Shramek v. Walker, supra. For the reasons herein stated, I am of the opinion that the judgments and sentences of the Recorder should be sus tained and the Appeals dismissed, and it is so Ordered. s / J ohut W. Chews, Judge, Richland County Court. Columbia, S. C., April 28, 1961. 10a Opinion o f the Supreme Court o f South Carolina I n the SUPREME COURT OF SOUTH CAROLINA T he City oe Columbia, Respondent, S imon B ouie and T almadge J. Neal, Appellants. Appeal From Richland County John W. Crews, County Judge Filed February 13,1962 A eeirmed in P art ; Reversed in P art L egge, A. J . : The appellants Simon Bouie and Talmadge J. Neal, Negro college students, were arrested on March 14, 1960, and charged with trespass (Code, 1952, Section 16-386 as amended) and breach of the peace (Code, 1952, Section 15-909). Bouie was also charged with resisting arrest. On March 25, 1960, they were tried before the Recorder of the City of Columbia, without a jury. Both were found guilty of trespass; Bouie guilty also of resisting arrest. Bouie was sentenced to pay a fine of one hundred ($100.00) dollars or to imprisonment for thirty (30) days on each charge, twenty-four and 50/100 ($24.50) of each fine being suspended and the prison sentences to run con- 11a Opinion of the Supreme Court of South Carolina secutively. Neal was sentenced to pay a fine of one hundred ($100.00) dollars, of which twenty-four and 50/100 ($24.50) was suspended, or to imprisonment for thirty (30) days. On appeal to the Richland County Court the judgment of the Recorder’s Court was affirmed by order dated April 28, 1961, from which this appeal comes. Eckerd’s one of Columbia’s larger drugstores, in addi tion to selling to the general public drugs, cosmetics and other articles usually sold in drugstores, maintains a luncheonette department. Its policy is not to serve Negroes in that department. On March 14, 1960, about noon, the appellants entered this drugstore and sat down in a booth in the luncheonette department for the purpose, according to their testimony, of ordering food and being served. Neal testified that it was his intention to be arrested; Bouie testified that he knew of the store’s policy not to serve Negroes in that department, and that it was his purpose also to be ar rested “if it took that”. No employee of the store ap proached them, and they continued to sit in the booth for some fifteen minutes, each with an open book before him, when the manager of the store came up, in company with a police officer, told them that they would not be served, and twice requested them to leave. Upon their ignoring such request, the police officer asked them to leave, which request brought no result other than the query “for what” from Bouie. The police officer then told them to leave and that they were under arrest. Thereupon Neal closed his book and got up ; Bouie did not, and the officer thereupon caught him by the arm and lifted him out of the seat. Bouie’s book being still on the table, he was permitted to get it; and the officer then seized him by the belt and pro ceeded to march him out of the store, Bouie testified that 12a Opinion of the Supreme Court of South Carolina he made no resistance, but only said to the officer when the latter had hold of his belt, “That’s all right, Sheriff, I ’ll come on”. The officer testified that Bouie said: “Don’t hold me, I ’m not going anywhere”, and that after they had proceeded a few steps he “started pushing back and said ‘Take your hands off me, you don’t have to hold me.’ ” The appeal here is based upon four Exceptions of which Nos. 3 and 4 present, in substance, the contention that ap pellants’ arrest by the police officer at the instance of the store manager, and the convictions of trespass that fol lowed, were in furtherance of an unlawful policy of racial discrimination and constituted state action in violation of appellants’ rights under the Fourteenth Amendment. Iden tical contention was made, considered, and rejected in City of Greenville v. Peterson, filed November 10, 1961, ----- S. C. ----- , ----- S. E. (2d) ----- ; City of Charleston v. Mitchell, filed December 13, 1961, —— 8. C. ----- , ----- S. E. (2d)----- and City of Columbia v. Barr, filed Decem ber 14, 1961,-----S. C .------ , ----- S. E. (2d) ----- , in each of which was involved a sit-down demonstration, similar to that disclosed by the uncontradicted evidence here, at a lunch counter in a place of business privately owned and operated, as was Eckerd’s in the case at bar. Exceptions 3 and 4 are overruled. Exceptions 1 and 2 purport to question the sufficiency of the evidence to make out a case of trespass as to either appellant, or a case of resisting arrest as to the appellant Bouie. So far as they relate to the charge of trespass, these exceptions are without merit. The uncontradicted testimony, to which we have referred, amply supported that charge. On the other hand, the evidence was in our opinion in sufficient to warrant Bouie’s conviction on the charge of 13a Opinion of the Supreme Court of South Carolina resisting arrest. It is apparent from the testimony of the arresting officer that the only “resistance” on Bouie’s part was his failure to obey immediately the officer’s order, with the result that the latter “had to pick him up out of the seat”. Resisting arrest is one form of the common law offense of obstructing justice; and the use of force is not an essential ingredient of it, State v. Hollman, 232 S. C. 489, 102 S. E. (2d) 873. But we do not think that such momentary delay in responding to the officer’s command as is shown by the testimony here amounted to “resistance” within the intent of the law, City of Charleston v. Mitchell, supra. The judgment is affirmed as to the conviction and sentence of each of the appellants on the charge of trespass; it is reversed as to the conviction and sentence of the appellant Bouie on the charge of resisting arrest. Affirmed in part and reversed in part. T aylor, C.J., Moss and L ewis, JJ., concur. Order o f Denial o f Rehearing I n th e SUPREME COURT OF SOUTH CAROLINA City of Columbia, Respondent, —against— S imon B ouie and T almadge J. Neal, Appellants. (Endorsed on back of Petition for Rehearing) THE WITHIN PETITION FOR REHEARING has been carefully considered and is found to be without merit. The Petition is therefore denied. Filed: March 7, 1962. s / C. A. Taylor C. J. s/ L ionel K. Legge A.J. s/ J oseph R. Moss A.J. s / J. W oodrow Lewis A.J.