Compromise and Settlement Agreement with Escambia County Defendants

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December 2, 1986

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  • Brief Collection, LDF Court Filings. Gober v. City of Birmingham Petition for Writ of Certiorari to the Alabama Court of Appeals, 1961. eaca3f7d-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e3d24fc7-7ceb-49d4-8c30-98c7409e99b8/gober-v-city-of-birmingham-petition-for-writ-of-certiorari-to-the-alabama-court-of-appeals. Accessed July 30, 2025.

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©curt at th  ̂ States
October Term, 1961 

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

J ames Gobee, J ames Albert Davis, R oy H utchinson, 
R obert J . K ing, R obert P arker, W illiam W est, R obert 
D. Sanders, Roosevelt W estmoreland, J essie W alker, 
W illie J .  W illis,

Petitioners,

City of B irmingham

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack Greenberg 
Constance Baker Motley 

10 Columbus Circle 
New York City, New York 

Arthur D. Shores 
P eter A. H all 
Orzell B illingsley, J r.
Oscar W. Adams, J r.
J .  R ichmond P earson

Attorneys for Petitioners
L eroy D. Clark 
Michael Meltsner 
J ames M. Nabrit, III

of Counsel



TABLE OF CONTENTS

Citations to Opinion Below ........... ...............................  1

Jurisdiction .....................      2

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

Constitutional and Statutory Provisions Involved .... 3

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

Gober and Davis.........................   5
Hutchinson and King ....    8
Parker and West ................................     9
Sanders and Westmoreland..................................   10
Walker and Willis ............................................... . 12
Facts in Common ......................... ............ ...........  12

How the Federal Questions Were Raised and Decided 
Below................................. .................................. ....... 14

Reasons for Granting the Writ ............................. ........ 18
I. Petitioners were denied due process of law and 

equal protection of the laws by conviction of 
trespass for refusing to leave white dining 
areas where their exclusion was required by 
City ordinance .......................   18

II. Petitioners were denied due process and equal 
protection by convictions for trespass for re­
fusal to leave whites-only dining areas of de­
partment stores in which all persons are other­
wise served without discrimination .....   23

PAGE



n

III. The convictions deny due process of law in that
they rest on an ordinance which fails to specify 
that petitioners should have obeyed commands 
to depart given by persons who did not estab­
lish authority to issue such orders at the time 
given .................................................... ..............  27

IV. The decision below conflicts with decisions of 
this Court securing the right of freedom of 
expression under the Fourteenth Amendment
to the Constitution of the United S tates..........  30

Conclusion ......................................................................  34

A ppendix :

Judgment Entry in Gober Case ............................  la
Opinion in the Alabama Court of Appeals (in 

Gober Case) .........................................................  4a
Order of Affirmance in Gober Case ............... 13a
Order Denying Application for Eehearing in Gober 

Case .................................................................  14a
Order Denying Petition for Writ of Certiorari to 

the Court of Appeals in Gober Case .......... ....... 15a
Order Denying Eehearing in Gober Case .......... 16a
Judgment Entry in Eoosevelt Westmoreland Case 17a
Order of Affirmance in Eoosevelt Westmoreland 

Case ......................................................................  20a
Order Denying Eehearing in Eoosevelt Westmore­

land Case .............................................................  21a,

PAGE



I l l

Order Denying Petition for Writ of Certiorari in 
Roosevelt Westmoreland Case ........................ . 22a

Order Denying Rehearing in Roosevelt Westmore­
land Case .................................................. ...........  23a

Table oe Cases

Abie State Bank v. Bryan, 282 U.S. 765 ....... .............  8
Abrams v. United States, 250 U.S. 616.......... ...... ........ 30
Adams v. Saenger, 303 U.S. 59 .......... .......................... 8

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ......  22
Boman v. Birmingham Transit Company, 280 F. 2d

531 (5th Cir. 1960) ........... ........... .......................... 22
Breard v. Alexandria, 341 U.S. 622 ....... ....................  31
Browder v. Gayle, 352 U.S. 903 (1956) ____ ____ ___ 25
Brown v. Board of Education, 347 U.S. 483 .................  22
Buchanan v. Warley, 245 U.S. 60 ......... ...................22, 24
Burton v. Wilmington Parking Authority, 365 U.S.

715 .................................................. ..................... 22,23,26

Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So.
815 ............................ ......................................... ......... 29

Connally v. General Construction Co., 269 U.S. 385 .... 28 
Cooper v. Aaron, 358 U.S. 1 ............... ........................... 33

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949) aff’d 
336 U.S. 933 .......... .......... .......................................  21

Frank v. Maryland, 359 U.S. 360 ................... ................ 27
Freeman v. Retail Clerks Union, Washington Superior 

Court, 45 Lab. Rel. Ref. Man. 2334 (1959) .................  33

PAGE



IV

Garner v. Louisiana, 7 L. ed. 2d 207 ..........5, 24, 29, 30, 31
Gayle v. Browder, 352 U.S. 903, aff’g 142 F. Supp. 707

(M.D. Ala, 1956) .........................................................  22
Guinn v. United States, 238 U.S. 347 ..........................  21
Holmes v. City of Atlanta, 350 U.S. 879 ......................... 22
Hudson County Water Co. v. McCarter, 209 U.S. 349 .... 27
Junction R.R. Co. v. Ashland Bank, 12 Wall. (U. S.) 226 8
Lambert v. California, 355 U.S. 225 ............................  28
Lane v. Wilson, 307 U.S. 268 .......................... ..... ....... 21
Lanzetta v. New Jersey, 306 U.S. 451............................  28
Louisiana State University and A. & M. College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 
358 U.S. 819 ........ ,....................................................... 21

Mapp v. Ohio, 367 U.S. 643 ...... .................................... 26
Marsh v. Alabama, 326 U.S. 501 ................................24, 32
Martin v. Struthers, 319 U.S. 141 ................................ 31
Mayor and City Council of Baltimore v. Dawson, 350

U.S. 877 ........................................................................ 22
McCord v. State, 79 Ala. 269 .......................................  29
Monkv. Birmingham, 87 F. Supp. 538 (N.D. Ala, 1949)

aff’d 185 F. 2d 859, cert, denied 341 U.S. 940 ..........  7
Morissette v. United States, 342 U.S. 246 ..................... 29
N.A.A.C.P. v. Alabama, 357 U.S. 449 ............................  30
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) .........................................................  32
N.L.R.B. v. Fansteel Metal Corp., 306 U.S. 240 ..........  32
Owings v. Hull, 9 Peters (U. S.) 607 ............................  8
People v. Barisi, 193 Misc. 934, 86 N.Y.S. 2d 277 (1948) 32
Poe v. Ullman, 367 U.S. 497 ........................................... 27

PAGE



V

Railway Mail Ass’n v. Corsi, 326 U.S. 8 8 ..................... 26
Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793 .... 32

San Diego Bldg. Trades Council v. Garmon, 349 U.S.
236 ...........................    32

Schenck v. United States, 249 U.S. 47 ..................... . 33
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert,

denied 332 U.S. 851 ................................................. 33
Shell Oil v. Edwards, 263 Ala. 4, 88 So. 2d 689 (1955) .. 7
Shelley v. Kraemer, 334 U.S. 1 .......................... ...... . 24
Smiley v. City of Birmingham, 255 Ala. 604, 52 So. 2d

710 (1961) ...............................................     7
Smith v. California, 361 U.S. 147 .................................... 34
State Athletic Commission v. Dorsey, 359 U.S. 533 ......  22
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357 (1959) ........................  33
Stromberg v. California, 283 U.S. 359 .................. ......  30

Terminiello v. Chicago, 337 U.S. 1 ................................ 33
Thompson v. City of Louisville, 326 U.S. 199 .............. 29
Thornhill v. Alabama, 310 U.S. 88 ............................ 30, 32

United States v. Willow River Power Co., 324 U.S.
499 ....... ...................... ............................._.................. . 24

United Steelworkers v. N.L.R.B., 243 F.2d 593 (D.C.
Cir. 1956), reversed on other grounds, 357 U.S. 357 .. 32

West Virginia State Board of Education v. Barnette,
319 U.S. 624 ........................................ ........................  30

Wieman v. Updegraff, 344 U.S. 183 ........................ . 34
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D.C.

Cir. 1961) ................................ ............. .................  _____ 22
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 

845 (4th Cir. 1959) ........................ ......... .................  22

PAGE



VI

Statutes

United States Code, Title 28, §1257(3) .....................  2
Alabama Constitution, §102 .........................................  25
Alabama Constitution, §111, amending §256 .............. 25

Code of Alabama, Title 1, §2 ......................... .......... 25
Code of Alabama, Title 7, §429(1) (1940) ................ 7
Code of Alabama, Title 14, §§360-361 ...............  25
Code of Alabama, Title 14, §426 ...............    29
Code of Alabama, Title 44, §10 .   25
Code of Alabama, Title 45, §4 ........................  25
Code of Alabama, Title 45, §§121-123, 52, 183 ... 25
Code of Alabama, Title 45, §248 ..................... 25
Code of Alabama, Title 46, §189(19) ....    25
Code of Alabama, Title 48, §§186, 196-197, 464 . 25
Code of Alabama, Title 48, §301 (31a, b, c) ....  25
Code of Alabama, Title 51, §244 ........    25
Code of Alabama, Title 52, §24 ......................  25
Code of Alabama, Title 52, §§452-455 .............  25
Code of Alabama, Title 52, §455(1)-(4) .......... 25
General City Code of Birmingham, §369 (1944) .....3, 7,15
General City Code of Birmingham, §1436 (1944) ....3,5,14

Otheb A uthorities

American Law Institute, Model Penal Code, Tentative 
Draft No. 2, §206.53, Comment ................................  29

Sayre, Public Welfare Offenses, 33 Columbia L. Rev.
55 (1933) ......................................................................  29

PAGE



I n  t h e

( ta r t of tfft Hnttrd States
October Term, 1961 

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

J ames Gober, J ames Albert Davis, R oy H utchinson, 
R obert J . K ing, R obert P arker, W illiam W est, R obert 
D. Sanders, R oosevelt W estmoreland, J essie W alker, 
W illie J . W illis,

Petitioners,
—v.—

City of B irmingham

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioners pray that writ of certiorari issue to review 
the judgments of the Alabama Court of Appeals entered 
in the above entitled cases as set forth in “Jurisdiction,” 
infra.

Citation to Opinion Below*

The opinion of the Alabama Court of Appeals is not re­
ported, and is set forth in the Appendix hereto infra p. 4a. 
The denial of certiorari by the Supreme Court of Alabama 
is unreported and appears in the Appendix, infra, p. 22a.

* The Appendix contains the following opinions and orders in 
Gober: Judgment; Opinion of Alabama Court of Appeals; Judg­
ment, Alabama Court of Appeals; Denial of Rehearing, Alabama 
Court of Appeals; Denial of Certiorari, Supreme Court of Ala­
bama; Denial of Rehearing on Petition for Writ of Certiorari, 
Supreme Court of Alabama. All other cases were affirmed on au­
thority of Gober. Pertinent orders and opinions are set forth for 
the Westmoreland case; all the orders and opinions in the other 
cases are identical and, therefore, are omitted.



2

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Gober 57, Davis '60, Hutchinson

/X  / 4 -fr  1 7 6  /ft- X S . o
42) King 42, Parker 45, Westg41, Sanders 36, Westmore­
land 36, Walker 36, Willis 38); Appendix p. 13a infra. 
Petitions to the Supreme Court of Alabama for Writs of 
Certiorari were denied on September 14, 1961 (Gober 7-2, 
Davis 67, Hutchinson 47, King 46, Parker 46, West 50, 
Sanders 42, Westmoreland 36, Walker 48, Willis 39), infra, 
p. 15a.

Applications to the Supreme Court of Alabama for re~7J 
hearing^were overruled on November 2, 1961 (Gober 74, 
Davis 69, Hutchinson 40, King ^  Parker 48, West 52, 
Sanders 44, Westmoreland 40, Walker 45, Willis ,41), infra, 
p. 16a.

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

Questions Presented

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

1. When arrested and convicted of trespass for refusing 
to leave department stores’ dining areas where their ex­
clusion was required by an Ordinance of the City of

qP Birmingham which orders segregation in eating facilities.
2. By conviction of trespass for refusal to leave whites- 

only dining areas of department stores in which all per­
sons are otherwise served without discrimination.



3

3. When arrested and convicted of trespass for seeking 
nonsegregated food service at whites-only dining areas 
upon records barren of evidence that any person making 
the requests to leave identified his authority to make the 
request.

4. Whether petitioner sit-in demonstrators were denied 
freedom of expression secured by the Fourteenth Amend­
ment when arrested and convicted for trespass upon re­
fusal to move from whites-only dining areas where the 
managers did not call the police or sign any affidavit or 
warrant demanding prosecution and were apparently will­
ing to endure the controversy without recourse to criminal 
process.

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States. 2

2. This case also involves the following sections of the 
City Code of Birmingham, Alabama:

“Section 1436 (1944), After Warning. Any person who 
enters into the dwelling house, or goes or remains on 
the premises of another, after being warned not to 
do so, shall on conviction, be punished as provided 
in Section 4, provided, that this Section shall not 
apply to police officers in the discharge of official 
duties.

Section 369 (1944), Separation of races. It shall be 
unlawful to conduct a restaurant or other place for 
the serving of food in the city, at which white and 
colored people are served in the same room, unless 
such white and colored persons are effectually sep­
arated by a solid partition extending from the floor



4

upward to a distance of seven feet or higher, and un­
less a separate entrance from the street is provided 
for each compartment” (1930, Section 5288).

;y |

Statement

These are ten sit-in protest cases tried in five separate 
trials.1 2 The protests—involving common facts relevant to 
the Constitutional issues here presented—occurred the same 
day in five department stores in each of which two peti­
tioners were arrested and charged with commission of the 
same acts; all were sentenced identically in a common 
sentencing proceeding (Gober 52-56, Davis 51-55; Hutchin­
son 34-38, King 34-38; Parker 36-40, West 33-37; Sanders 
28-32, Westmoreland 25-29; Walker 28-32, Willis 25-29)2 
after trials held seriatim with the same judge, prosecution, 
and defense counsel. Identical constitutional and state law 
questions were raised in each case. See infra, pp. 14-18. 
The Alabama Court of Appeals wrote an affirming opinion 
for the first case, Gober v. State of Alabama, see infra, 
p. 4a, affirming all others in brief per curiam orders merely 
citing Gober, see infra, p. 20a. The Supreme Court of 
Alabama denied certiorari in all cases in identical orders.3

1 While there are ten separate records there is a single tran­
script of testimony for each pair of defendants arrested in a single 
establishment (or five transcripts in all) of which a carbon copy 
appears in the record of each one of the pair.

2 The sentencing portion of each of the ten records is identical. 
Record citations are indicated by the name of the defendant and 
the page.

3 A sixth pair of cases, Billups v. State of Alabama and Shuttles- 
worth v. State of Alabama, arose in connection with the same situa­
tion, but presents somewhat different issues in that Billups and 
Shuttlesworth were convicted of having persuaded the petitioners 
bringing this petition to engage in the sit-in protests which are 
the subject of this petition. These two men were sentenced in the 
same proceeding as the instant petitioners. A separate petition for 
certiorari is being filed concerning Billups and Shuttlesworth.



5

See infra, pp. 15a, 22a. Hence, for convenient presentation, 
although each pair of cases differs somewhat, the issues are 
brought here by petition for writ of certiorari in a single 
document. Cf. Garner v. Louisiana, 7 L. ed. 2d 207, 211.

Petitioners were convicted in the Recorder’s Court of 
the City of Birmingham for having trespassed after warn­
ing in violation of City Code of Birmingham, Alabama, 
§1436 (1944):

“Sec. 1436, After Warning. Any person who enters 
into the dwelling house, or goes or remains on the 
premises of another, after being warned not to do so, 
shall on conviction, be punished as provided in Sec­
tion 4, provided, that this Section shall not apply to 
police officers in the discharge of official duties.”

Upon conviction they received trials de novo in the 
Circuit Court of Jefferson County, were again adjudged 
guilty, and sentenced to thirty days hard labor and $100.00 
fine. (Gober 8, Davis 8-9; King 8-9, Hutchinson 8-9; 
Parker 8-9, West 5-6; Sanders 8-9, Westmoreland 5-6; 
Walker 8-9, Willis 5-6.)

Each complaint charged that petitioner “ . . . did go or 
remain on the premises of another, said premises being 
the area used for eating, drinking and dining purposes 
and located within the building commonly and customarily 
known as [the store in question] after being warned not 
to do so, contrary to and in violation of Section 1436 of 
the General City Code of Birmingham of 1944.” (Gober 2, 
Davis 2; King 2, Hutchinson 2; Parker 2, West 2; Sanders 
2, Westmoreland 2; Walker 2, Willis 2.)

Gober and Davis

The Gober and Davis cases arose from a sit-in protest 
at Pizitz’s Department Store, Birmingham. Davis, on



6

March 31, purchased socks, toothpaste and handkerchiefs 
at Pizitz’s, and with Gober attempted to order at the lunch 
counter, but the waitress refused to approach (Gober 42, 
Davis 43). Without identifying himself a man informed 
them that Negroes could be served elsewhere in the store, 
but did not ask them to leave the store or where they were 
sitting (Gober 19-22, Davis 20-23). No sign indicated a 
segregation policy or that the counter was solely for whites 
(Gober 50, Davis 50).

That morning, Police Officer Martin testified, a superior 
had reported (Gober 17, Davis 18) a disturbance at Pizitz’s 
to him; he went to the dining area, found it closed to cus­
tomers, and saw two Negro males seated conversing to­
gether. No one spoke to them in Martin’s hearing, neither 
did he speak to any person in the store (Gober 15-17, 
Davis 16-18). He arrested them (Gober 17-18, Davis 17-19).

The store’s controller, Gottlinger (Gober 19, Davis 20), 
saw two Negro boys seated in the lunch area, said nothing 
to them, but heard one say “we should call the police” 
(Gober 19, Davis 20).

This witness observed an assistant to the store president 
speak to the boys, asking that they leave the tea room, 
informing them they could be served in the basement Negro 
restaurant because “it would be against the law to serve 
them there” in the tea room area (Gober 22, Davis 23).

Here, in the first case tried, petitioners tried to inter­
rogate concerning the segregation ordinance of the City 
of Birmingham (Gober 22-24; Davis 23-25):

“Mr. Hall: . . .  It is our theory of this case it is 
one based simply on the City’s segregation ordinance 
and Mr. Gottlinger, Mr. Pizitz, the police officers and 
everybody involved acted simply because of the segre­
gation law and not because it was Pizitz policy. . . .

* . * * # #



7

“Mr. Hall: As I understand it it is the theory of 
the City’s case, it is trespass after warning. Our con­
tention is that that is not a fact at all, it is simply an 
attempt to enforce the segregation ordinance and we 
are attempting to bring it out.

“The Court: Hoes the complaint cite some statute?
“Mr. Hall: Trespass after warning. If we went only 

on the complaint it would seem that some private 
property has been abused by these defendants and 
that the owner of this property has instituted this 
prosecution. From the witness’ answers it doesn’t seem 
to be the case. It seems it is predicated on the segre­
gation ordinance of the City of Birmingham rather 
than on the trespass. So what we are trying to bring 
out is whether or not the acts of Pizitz were based on 
the segregation ordinance or something that has to do 
with trespass on the property.”

(And see Parker 25-28, West 22-25.)

The Birmingham Segregation Ordinance to which coun­
sel referred is General City Code of Birmingham §369 
(1944),4 requiring that Negroes and whites be separated

4j§‘Sec. 369. Separation of races.
It shall be unlawful to conduct a restaurant or other place 

for the serving of food in the city, at which white and colored 
people are served in the same room, unless such white and 
colored, persons are effectually separated by a solid partition 
extending from the floor upward to a distance of seven feet 
or higher, and unless a separate entrance from the street is 
provided for each compartment” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
7 Code of Alabama, 1940, §429(1). See 8'hell Oil v. Edwards, 263 
Ala. 4, 9, 88 So. 2d 689 (1955) ; Smiley v. City of Birmingham, 
255 Ala. 604, 605, 52 So. 2d 710 (1951). “The act approved June 
18, 1943, requires that all courts of the State take judicial knowl­
edge of the ordinances of the City of Birmingham.” Monk v. 
Birmingham, 87 F. Supp. 538 (N. D. Ala. 1949), aff’d 185 F. 2d 
859, cert, denied 341 U. S. 94(5J And this Court takes judicial notice



8

in restaurants by solid partition and that they have sep­
arate entrances. The evidence was excluded (Gober 24, 
Davis 25).

Gottlinger did not call the police (Gober 24, Davis 25); 
when asked by the police whether he witnessed the episode, 
petitioners already had been arrested and were being es­
corted out of the store by the police (Gober 24, 25; Davis 
25, 26). It does not appear that any store official summoned 
the police or made a complaint (Gober 24, 25; Davis 25, 26).

Hutchinson and K ing

Police Officer Martin proceeded to Loveman’s Depart­
ment Store, Birmingham, along with Officer Holt who told 
him to accompany him on his motorcycle (Hutchinson 17, 
King 17). At the dining area entrance Martin found a 
rope tied from one post to another; a sign stated the area 
was closed. (Ibid.) He saw two Negro boys at a table 
but had no conversation “ . . . other than to tell them that 
they were under arrest”. (Ibid.)

He did not know of his own knowledge that anyone from 
Loveman’s had asked them to leave (Hutchinson 18, King 
18). Apparently at the same time Police Lt. Purvis ap­
proached Mr. Schmid, the dining area concessionnaire, 
stating that “ . . . someone called us that you had two 
people in here that were trying to be served . . . ” Schmid 
pointed to petitioners (Hutchinson 22, King 22).

The Protective Department had been notified because, 
as Mr. Schmid testified, “naturally”, in this case, there was 
a “disturbance of the peace” (Hutchinson 22, King 22). 
The only disturbance, however, was that “ . . . the waiters

of laws which the highest court of a state may notice. Junction 
B.B. Co. v. Ashland Bank, 12 Wall. (U. S.) 226, 230; Abie State 
Bank v. Bryan, 282 U. S. 765, 777, 778; Adams v. Saenger, 303 
U. S. 59; Owings v. Hull, 9 Peters (U. S.) 607, 625.



9

left the floor.” {Ibid.) Petitioners were not boisterous or 
disorderly (Hutchinson 28, King 28).

Mr. Kidd of the Protective Department who apparently 
was in charge of the situation at no time spoke to peti­
tioners (Hutchinson 25, King 25). He merely asked the 
white persons there to leave. {Ibid.) Neither did he call 
the police, but was notifying patrons that the restaurant 
was closed when they arrived. So far as he knew no one 
called the police (Hutchinson 26, 29, King 26, 29).

Loveman’s invites the general public to trade and sells 
general merchandise (Hutchinson 31, King 31). Its eating 
facilities, however, are for whites only (Hutchinson 24, 
King 24).

Parker and W est

Police Officer Myers received a radio call from head­
quarters to proceed to Newberry’s, Birmingham; visited 
the eating area and found “Two colored males [petitioners 
West and Parker] were sitting at the lunch counter”, 
which was “out of the ordinary” (Parker 16-17, West 
13-14). He did not speak with them nor did they converse 
with any store employee in his presence (Parker 17, West 
14), but he arrested them for trespass after warning, it 
having been his “understanding” that his partner had re­
ceived a complaint from a Mr. Stallings, whose capacity 
at the store the witness did not know, nor did the witness 
know whether he was employed there (Parker 18-19, West 
15-16).

West had met Parker at the store where West had pur­
chased some paper and small comic books (Parker 29, 
West 26). When they seated themselves some white people 
were eating, but petitioners were not served (Parker 30, 
West 27). No sign at the counter indicated service for



10

whites only. {Ibid.) (At a Negro counter elsewhere in the 
store a sign stated “for colored only”. (Parker 24, West 
21).) The officers, upon arrival, ordered the white people 
to get up, but all did not leave (Parker 31, West 28).

Mrs. Gibbs, the store detective, told petitioners they 
could be served at a Negro snack bar on the fourth floor 
but not where they were seated (Parker 21, West 18). 
(Nor could they be served at another lunch counter for 
whites only in the basement (Parker 22, West 19).)

Assistant Store Manager Stallings also asked petitioners 
to patronize the Negroes-only counter. Stallings, however, 
did not call the police, but was informed that “someone” 
did. He made no complaint to the police at the time of 
arrest, nor subsequently, and did not know whether any­
one else did (Parker 23-24, West 20-21).

Newberry’s advertises and sells merchandise to the gen­
eral public. Negroes and whites shop together on the first 
floor (Parker 24-25, West 21-22).

Petitioners’ counsel attempted to establish that the lunch 
counter segregation policy was the City of Birmingham’s, 
not Newberry’s (Parker 25-27, West 22-24). This line of 
inquiry was held incompetent (Parker 27, West 24).

Sanders and W estm oreland

Officer Caldwell of the Birmingham police was called to 
Kress’s five and ten cent store, Birmingham, the same morn­
ing (Sanders 16, Westmoreland 13). Upon arrival he pro­
ceeded to the basement and observed “two black males” 
{ibid.) seated. He heard the manager inform petitioners 
they could not be served, the lights were turned out and 
the counter closed. Caldwell arrested them (Sanders 17, 
18, Westmoreland 14, 15), but did not hear any request



11

that petitioners leave; no one in Kress’s asked him to arrest 
them {ibid.).

When petitioners had seated themselves at a lunch 
counter bay the steward or manager, Pearson, closed it, 
informed them they could not be served, and turned out 
that bay’s lights. They then requested service at a second 
bay. Pearson said: “Boys, you will have to leave because I 
can’t serve you and the bay is closed. We are closing” 
(Sanders 19, Westmoreland 16). A woman already seated 
at the counter, however, remained after “closing” and so 
far as the steward knew, was not arrested and he was not 
called to bear witness against her (Sanders 26, Westmore­
land 23).

One petitioner told him, “Well, we have our rights” 
(Sanders 19, Westmoreland 16); Pearson called the man­
ager who approached the counter and asked Pearson 
whether he had asked them to leave. While the witness at 
this point stated that the manager asked them to leave the 
store (Sanders 20, Westmoreland 17), on cross-examination 
he explained:

“Q. To leave that section, yes. In the store? A. 
The store was not mentioned” (Sanders 21, Westmore­
land 18).

When Pearson and the manager left the bays, the police 
entered, asked petitioners to get up, additional police en­
tered, and the first two officers escorted petitioners from 
the store. Neither Pearson nor the manager called the 
police, neither asked for the arrest, neither signed the 
complaint (Sanders 21-23, Westmoreland 18-20).

Kress’s is a general department store advertising to the 
general public (Sanders 22, Westmoreland 19), but has no 
food service facilities for Negroes (Sanders 23, Westmore­
land 20), although they are solicited to and may buy food



12

to carry out (Sanders 26, Westmoreland 23). Whites and 
Negroes, however, purchase from the same counters at all 
other departments (Sanders 24, Westmoreland 21).

W alker and W illis

The Birmingham Police Department radio dispatched 
Officer Casey to Woolworth’s. There he observed something 
“unusual or out of the ordinary” : two Negro males, peti­
tioners Walker and Willis, at the lunch counter (Walker 
16-18, Willis 13-15). Mrs. Evans, manager of the lunch 
counter, he testified, told petitioners to leave (Walker 19, 
Willis 16). Neither Mrs. Evans, nor anyone from the store, 
instructed him to arrest them, nor did she complain other 
than to say she wanted them to leave the counter—not the 
store (Walker 19, Willis 16). The police informed persons 
connected with the store that “they would have to come 
to headquarters or be contacted to sign a warrant” (Walker 
19-20, Willis 16-17), but Officer Casey did not know whether 
such a warrant was signed (ibid.).

Walker and Willis had purchased various articles and 
then went to the counter (Walker 21, Willis 18). Walker 
denied that Mrs. Evans had spoken to them at all and testi­
fied that only the police asked him to leave (Walker 22, 
Willis 19). He testified also that white persons at the 
counter were served while he was seated. No white person, 
however, was arrested (Walker 22, Willis 19). No signs 
at the counter designated it for whites or Negroes (Walker 
23, Willis 20).

Facts in Common

All the cases have salient facts in common. The protest 
demonstrations occurred in department stores open to the 
general public, including Negroes, but whose dining areas 
were segregated (Gober 48-49, Davis 49-50; Hutchinson 24,



13

31, King 24, 31; Parker 21, 24, 25, West 18, 21, 22; Sanders 
22, 23, 24, 26, Westmoreland 19, 20, 21, 23; Walker 21; Willis 
18). Nevertheless, apparently no racial signs were posted 
at any of the “white” dining areas (Gober 50, Davis 50; 
Hutchinson 28, King 28; Parker 27, West 30; Sanders 24, 
Westmoreland 21; Walker 23, Willis 30). In no case is 
there evidence that a person asking petitioners to leave 
identified himself as having authority to do so5 * (Gober 
19-22; Davis 20-23; Hutchinson 18, 22, 25; King 18, 22, 25; 
Parker 23; West 20; Sanders 19, 20; Westmoreland 16, 17; 
Walker 18; Willis 15).

In each case the police immediately arrested petitioners 
without a request from anyone connected with the store 
(Gober 15-18, Davis 16-19; Hutchinson 18, 26, King 18, 
26; Parker 23-24, W7est 20-21; Sanders 21-23, Westmore­
land 18-20; Walker 19, Willis 16). In no case does it appear 
that anyone connected with the store called the police or 
subsequently signed a complaint, affidavit or warrant 
(Gober 25, 26, Davis 24, 25; Hutchinson 29, King 29; 
Parker 23-24, West 20-21; Sanders 21-23, Westmoreland 
18-20; Walker 18, 19, 20, Willis 15, 16, 17). In no case 
were petitioners requested to leave the store itself as op­
posed to the counter area (Gober 23, Davis 22; Hutchinson 
25, King 25; Parker 21, 22, West 18, 19; Sanders 20, 21, 
Westmoreland 17, 18; Walker 19, Willis 16). In each case 
petitioners were charged that they “did go or remain on 
the premises of another, said premises being the area used 
for eating, drinking and dining purposes . . . after being 
warned not to do so” (Gober 2, Davis 2; Hutchinson 2, 
King 2; Parker 2, West 2; Sanders 2, Westmoreland 2; 
Walker 2, Willis 2).

5 In Parker and West, the store detective testified that he “iden­
tified” himself (Parker 18; West 21) but he nowhere testified that 
he identified himself as a person who had authority to ask them
to leave the counter or that, in fact, he had such authority or,
for that matter, as to what about himself he identified.



14

In each, case the store management was prohibited from 
serving Negroes and whites in the same dining area by an 
Ordinance of the City of Birmingham which compelled 
racial segregation. See supra pp. 7-8, note 4, p. 7.

How the Federal Questions W ere Raised 
and Decided Below

After conviction in the Recorders Court of the City of 
Birmingham petitioners appealed to the Circuit Court of 
the Tenth Judicial Circuit of Alabama for trials de novo, 
prior to which they filed motions to strike the complaints 
and demurrers, alleging that Section 1436 of the General 
City Code of Birmingham was unconstitutionally applied 
to them in that while patronizing stores open to the general 
public they were charged with trespass on account of race 
and color contrary to the equal protection and due process 
clauses of the Fourteenth Amendment; that Section 1436 
denied due process of law secured by the Fourteenth 
Amendment in that it was unconstitutionally vague by not 
requiring that the person making the demand to depart 
identify his authority; that the ordinance was unconstitu­
tionally applied in that they were engaged in sit-in demon­
strations and were denied freedom of assembly and speech 
secured by the Fourteenth Amendment (Gober, Davis; 
Hutchinson, King; Parker, West; Sanders, Westmoreland; 
Walker, Willis, 2-4).

The motions to strike and the demurrers were overruled; 
exceptions were taken (Gober 7, Davis 8; Hutchinson, King 
8; Parker 8, West 5; Sanders 8, Westmoreland 5; Walker 
8, Willis 5).

During the trial of Gober and Davis, the first trials of the 
series, petitioners attempted to introduce evidence that the 
stores were acting in conformance to General City Code



15

of Birmingham §369 (1944), which requires racial segrega­
tion in establishments serving food. This line of inquiry 
was held incompetent (Gober 22-24, Davis 23-25).

At the close of the State’s evidence, petitioners moved to 
exclude the evidence alleging, among other things: that 
the complaints were invalid because the trespasses charged 
were based solely on race, depriving them of due process 
and equal protection of the laws under the Fourteenth 
Amendment; that petitioners were peacefully assembled to 
speak and protest against the custom of racial discrimina­
tion in public establishments and were prosecuted for the 
purpose of denying them freedom of assembly and speech 
guaranteed by the Fourteenth Amendment; that the ordi­
nance was unconstitutionally vague in not requiring that 
the persons requesting petitioners leave produce any evi­
dence of authority to make the demand, whereby petitioners 
would be apprised of the validity of the demands to leave, 
thereby, denying the petitioners due process of law under 
the Fourteenth Amendment; that all of the stores involved 
are vitally affected with the public interest and have as­
sumed functions which the state would assume were they 
not in existence, whereby denial to petitioners of equal 
access to all their facilities solely because of race is a denial 
of due process and equal protection under the Fourteenth 
Amendment (Gober, Davis 5-7; Hutchinson, King 5-7; 
Parker 5-7, West 25 (and see Parker 5-7); Sanders 5-7; 
Walker 5-7, Willis 17).

The motions to exclude the evidence were overruled and 
exception taken (Gober,. Davis 8; Hutchinson, King 8; 
Parker 8, West 5; Sanders 8, Westmoreland 5; Walker 8, 
Willis 5).

At the end of each trial petitioners moved for new trials 
alleging, among other things, that: the trespass ordinance 
was unconstitutionally applied to deprive them of free



16

speech, equal protection of the laws and other liberties 
guaranteed by the Fourteenth Amendment to the United 
States Constitution; that the Court erred in overruling 
the motions to strike the complaint, the demurrers and the 
motions to exclude evidence (Gober 9-11, Davis 10-12; 
Hutchinson, King 10-12; Parker 10, 11, West 7, 8; Sanders 
10, 11, Westmoreland 7, 8; Walker 10, 11, Willis 7, 8). The 
motions for new trial were overruled (Gober 9, 11, Davis 
9, 12; Hutchinson, King 9, 12; Parker 9, 12, West 6, 9; 
Sanders 9, 12, Westmoreland 6, 9; Walker 9, 12, Willis 6, 
9).

Appeals were taken to the Alabama Court of Appeals and 
Assignments of Errors were filed against the action of the 
trial court in overruling the motions to strike the complaint 
(Assignment 1), the demurrers (Assignment 2), the mo­
tions to exclude the evidence (Assignment 3) and. the 
motions for new trial (Assignment 4) (Gober 55, Davis 58; 
Hutchinson, King 41; Parker 43, West 40; Sanders 25, 
Westmoreland 32; Walker 35, Willis 32).

In Gober v. City of Birmingham, 6th Division 797, Ala. 
App. Ms. the Court of Appeals of Alabama wrote a full 
opinion (Gober 58) and all other cases were affirmed on 
the authority of Gober (Gober 58, Davis 60; Hutchinson 42, 
King 42; Parker 45, West 41; Sanders 36, Westmoreland 
33; Walker 36, Willis 33).

While the Court held the motions to strike the complaint 
an improper means to raise a constitutional objection and 
refused to consider the demurrers, it did pass upon all of 
the constitutional questions raised by rejecting, adversely, 
on the merits, the objections to overruling the motions to 
exclude the evidence and the motions for new trial: “We 
find no merit in appellant’s Assignments numbers 3 and 4” 
(Gober 64).

Specifically the court held that petitioners had not been 
denied freedom of speech:



17

“Counsel has argued, among other matters, various 
phases of constitutional law, particularly as affected 
by the Fourteenth Amendment of the Federal Consti­
tution, such as freedom of speech, in regard to which 
counsel stated: ‘What has become known as a “sit-in” 
is a different, but well understood symbol, meaningful 
method of communication.’ Counsel has also referred 
to cases pertaining to restrictive covenants. We con­
sider such principles entirely inapplicable to the pres­
ent case” (Gober 62).

Further, the court held the petitioners had not been denied 
due process and equal protection of the laws secured by the 
Fourteenth Amendment:

“The right to operate a restaurant on its own prem­
ises under such conditions as it saw fit to impose was 
an inalienable property right possessed by the Pizitz 
store. The appellant would destroy this property right 
by attempting to misapply the Fourteenth Amendment, 
ignoring the provision in that Amendment that grants 
the right to a private property owner to the full use. 
of his property, that is : ‘Nor shall any state deprive 
any person of life, liberty or property without due 
process of law’ ” (Gober 63).

Moreover:

“As stated in Williams v. Howard Johnson Restau­
rant (C.C.A. 4), 368 Fed. 2d 845, there is an ‘important 
distinction between activities that are required by the 
State and those which are carried out by voluntary 
choice and without compulsion by the people of the 
State in accordance with their own desires and social 
practices’ ” (Gober 64).



18

Applications for rehearing before the Court of Appeals 
were overruled (Gober 66, Davis 61; Hutchinson, King 43; 
Parker 46, West 42; Sanders 37, Westmoreland 34; Walker 
37, Willis 34). Writs of certiorari, sought in the Supreme 
Court of Alabama, were denied (Gober 72, Davis 67; 
Hutchinson 47, King 48; Parker 46, West 50; Sanders 42, 
Westmoreland 38; Walker 43, Willis 39). Applications for 
rehearing before the Supreme Court of Alabama were over­
ruled (Gober 74, Davis 69; Hutchinson 49, King 50; Parker 
48, West 52; Sanders 44, Westmoreland 40; Walker 45, 
Willis 41).

Reasons for Granting the Writ

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

I.
Petitioners were denied due process o f law and equal 

protection o f the laws by conviction o f trespass for  
refusing to leave white dining areas where their exclu­
sion was required by City ordinance.

Despite the fact that petitioners ostensibly were con­
victed for “trespass after warning” they actually were 
sentenced to jail and fined by Alabama for having violated 
the segregation policy of the City of Birmingham. This 
policy is expressed in the General Code of Birmingham 
§369 (1944) requiring all eating establishments to main­
tain separate facilities for Negroes and whites “ . . . sep­
arated by a solid partition extending from the floor up­
ward to a distance of seven feet or higher . . . ” and re­
quiring that separate entrances be maintained for each 
race. Efforts to establish by evidence that this ordinance 
prevented the managers of the stores from rendering the



19

nonsegregated service sought by petitioners was excluded 
at the trial in the very first of the cases tried (G-ober 22-23,6 
Davis 23-24).

Moreover, corollary efforts to inquire concerning whether 
exclusion from the dining areas was demanded pursuant 
to the policy of the stores as distinct from that of the City 
also were rejected. Counsel for petitioners argued to the 
trial court:

“The meat in this coconut is whether or not the New­
berry’s Department Store has complained or the City 
of Birmingham. It is our theory of the case it is nec­
essary for the owner of the premises to be complain­
ing and we are trying to find out if they have com­
plained.”

(And see the remainder of the colloquy (Parker 25-27, 
West 22-24).) But whether the stores desired not to serve 
was held inadmissible {Ibid.).

Indeed, in the King and Hutchinson cases no one con­
nected with management had expressly asked petitioners— 
as distinct from white patrons—to leave the dining area. 
Rather, it was announced “in general terms that the tea­
room was closed and for everyone please to leave” (King 
20, Hutchinson 20). Yet, twenty-five “whites were still sit­
ting there when the two Negroes were there, when the 
police officers came” (King 23, Hutchinson 23). But, while 
petitioners were arrested summarily, it does not appear 
that any of the whites were arrested {Ibid.). White per­
sons merely were requested to leave.

Further confirmation that the policy of enforcing seg­
regation was the City’s, appears from how the arrests were 
made. The police proceeded to the stores in question and

See pp. 6-8, supra.



20

without requests to arrest by the management (See “Facts 
in Common,” supra p. 12), immediately arrested peti­
tioners. There is no evidence that anyone connected with 
the stores called the police {Ibid.). And petitioners were 
arrested even when police had no knowledge that anyone 
had refused to serve (King 23, Hutchinson 23) or had 
asked them to leave the dining area (Gober 15-17, Davis 
16-18; Parker 16-17, West 13-14). The conduct of the 
stores in these circumstances gives rise to an inference 
that the store managers were willing to tolerate the dem­
onstrations. As Mr. Justice Harlan has written. There was:

“ . . . the reasonable inference . . . that the management 
did not want to risk losing Negro patronage in the 
stores by requesting these petitioners to leave the 
‘white’ lunch counters, preferring to rely on the hope 
that the irritations of white customers or the force 
of custom would drive them away from the counters. 
This view seems the more probable in circumstances 
when, as here, the ‘sitters’ ’ behaviour was entirely 
quiet and courteous, and, for all we know, the counters 
may have been only sparsely, if to any extent, occupied 
by white persons.” Garner v. Louisiana, 30 U. S. L. 
Week 4070, 4082 (Mr. Justice Harlan concurring).

If the stores were willing to cope with the controversy 
within the realm of social and economic give and take, 
Birmingham had no constitutional authority to intervene as 
an enforcer of segregation.

The discriminatory practices in these stores, the de­
mands that petitioners leave and their arrests and convic­
tions, result, therefore, directly from the formally enacted 
policy of the City of Birmingham, Alabama, and not (so 
far as this record indicates) from any individual or cor­
porate decision or preference of the management of the



21

stores to exclude Negroes from the lunch counters. What­
ever the choice of the property owners may have been, here 
the City made the choice to exclude petitioners from the 
property through its segregation ordinance. This city seg­
regation policy was enforced by petitioners’ arrests, con­
victions, and sentences of imprisonment in the Alabama 
courts.

The Alabama Court of Appeals dismisses reference to 
the city segregation ordinance by stating “there is no ques­
tion presented in the record before us, by the pleading, 
of any statute or ordinance requiring the separation of the 
races in restaurants. The prosecution was for a criminal 
trespass on private property” (Gober 63). (All other con­
victions were affirmed on authority of Gober.) But the 
Constitution forbids “sophisticated as well as simple- 
minded modes of discrimination” Lane v. Wilson, 307 U.S. 
268, 275..

By enacting, first, that persons who remain in a restau­
rant when the owner demands that they leave are “tres­
passers,” and then enacting that restaurateurs may not 
permit Negroes to remain in white restaurants, the City 
has very clearly made it a crime (a trespass) for a Negro 
to remain in a white restaurant.7

Exclusion by the trial court of evidence concerning the 
ordinance and the policy of the City of Birmingham does 
not negate the fact that Birmingham is enforcing segrega­
tion. By Alabama statute all courts of the State are “re­
quired” to take judicial notice of the ordinance of the City

7 Racial segregation imposed under another name often has been 
condemned by this Court. Guinn v. U. 238 U.S. 347; Lane v. 
Wilson, supra; Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949) 
aff’d 336 U.S. 933; and see Louisiana State University and A. & M. 
College v. Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 358 
U.S. 819.



22

of Birmingham. This Court can and will judicially notice 
matter that the courts below could notice.8

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

See Note 4, supra.



23

II.

Petitioners were denied due process and equal pro­
tection by convictions for trespass for refusal to leave 
whites-only dining areas o f department stores in  which 
all persons are otherwise served without discrimination.

Even should the convictions be viewed as enforcing an 
alleged “inalienable property right” (Opinion of the Ala­
bama Court of Appeals, Gober 63) to order customers about 
within a store the judgments below conflict with principles 
declared by this Court.

The state by arrest and criminal conviction has “place [d] 
its authority behind discriminatory treatment based solely 
on color . . . ” Mr. Justice Frankfurter dissenting in 
Burton v. Wilmington Parking Authority, 365 U.S. 715, 727, 
by enforcing a policy of deploying customers within a store 
on the basis of race. This appears immediately from the 
complaints, all of which describe the premises upon which 
petitioners allegedly trespassed as the “area used for eat­
ing, drinking and dining purposes and located within the 
building commonly and customarily known as . . . ” (em­
phasis supplied). (See, e.g., Gober 2.) No question arose 
about the legality of petitioners’ presence within the stores 
—indeed, their patronage was actively solicited—but only 
whether for reasons of race they might be convicted for 
failure to move from particular portions of each store 
where they sought sit-down food service. And when peti­
tioners were asked to leave, they were rejected from the 
dining areas only—not the stores. Moreover, in the cases 
of Hutchinson and King (Hutchinson 25, King 25) they 
were not even asked to leave the dining areas. We have 
here, therefore, the state racially re-arranging by means 
of a trespass ordinance the customers within a single store.



24

Petitioners submit that the state’s interest in maintain­
ing such a “property” right is hardly sufficient to negate 
the well-established principle that the Fourteenth Amend­
ment forbids government to enforce racial discrimination.

That private property may be involved hardly settles a 
claim that Fourteenth Amendment rights have been denied. 
Marsh v. Alabama, 326 U.S. 501, 506; Buchanan v. Warley, 
245 U.S. 60, 74; United States v. Willow River Power Co., 
324 U.S. 499, 510; Shelley v. Kraemer, 334 U.S. 1. The 
stores were open generally to the public, advertised, and 
solicited it to purchase generally. The stores were “part 
of the public life” of the community. Garner v. Louisiana, 
supra at 7 L. ed. 2d 222 (Mr. Justice Douglas concur­
ring). Negroes and whites were served without distinction 
except at lunch counters where Negroes were served only 
in separate sections or were permitted to purchase food to 
take out. None of the lunch counters contained signs ex­
cluding Negroes. All were integral parts of the establish­
ments into which petitioners were invited. Petitioners 
sought to use the dining areas in their usual, intended 
manner. None of the dining sections were treated by the 
proprietors themselves as private in any sense except that 
upon being seated Negroes were denied service. Thus, the 
“property” right which the state has enforced is a “right” 
to discriminate among patrons on the basis of race in one 
particular aspect of the service of a single establishment.

But beyond this, the record demonstrates that the alleged 
property right being enforced was not in reality being as­
serted by private proprietors—it was a manifestation of 
state policy. This policy is, first of all and most clearly, 
expressed in the Birmingham restaurant segregation Or­
dinance §369. It is manifested also in a massive statutory 
and state constitutional structure which impresses segre-



25

gation on innumerable activities of all of the citizens of 
Alabama.

See, Alabama Constitution §111 amending §256 (nothing 
in the Constitution to be construed as creating a right to 
public education; legislature authorized to provide for 
education taking into account the preservation of “peace 
and order” and may authorize parents to send their chil­
dren to schools “for their own race”). Code of Alabama 
Title 1 §2 (defines “Negro” and “Mulatto”) ; Title 52 §24 
(authorizes appointment of an Advisory Board for Negro 
Educational Institutions); Title 52 §§452-455 (maintenance 
of Alabama A. & M. Institute for Negroes); Title 52 
§455(1)-(4) (maintenance of Tuskegee Institute for 
Negroes only); Title 45 §248 (schools for the mentally 
deficient to be built taking into account separation of the 
races); Title 45 §4 (prisoners in tubercular hospitals to 
be separated on basis of race); Title 14 §§360-361 (mar­
riage, adultery and fornication between Negroes and whites 
a felony; officer issuing license for such a marriage commits 
misdemeanor). Alabama Constitution §102 (legislature 
may never permit interracial marriages). Title 46 §189(19) 
(white women may not act as nurses in any public or 
private hospital where Negro men are patients); Title 44 
§10 (county homes for the poor to be segregated); Title 51 
§244 (a breakdown of the poll tax on the basis of race must 
be taken); Title 45 §§121-123, 52, 183 (white and Negro 
prisoners must be separated); Title 48 §§186, 196-197, 464 
(Negroes and whites must be separated in railroad coaches 
and waiting rooms); Title 48 §301 (31a, b, c) (Negroes 
and whites to be separated on intrastate buses). See Brow­
der v. Gayle, 352 U.S. 903 (1956).

Segregation is all of a piece. When the state decrees 
and enforces it at myriad points it hardly can claim that 
a proprietor who follows massive governmental policy in



26

racially segregating customers is exercising rights of “pri­
vate property.”

Petitioners submit that it is “irony amounting to grave 
injustice that in one part of a single building . . .  all per­
sons have equal rights, while in another portion, also ser­
ving the public, a Negro is a second-class citizen, offensive 
because of his race. . . . ” Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 724. While the excised language 
(replaced by dots) in the quotation from Burton refers to 
a building “erected and maintained with public funds by 
an agency of the States,” 365 U. S. 715, at 724, the legal 
significance of the omitted phrase, petitioners submit, wTas 
to supply the Fourteenth Amendment element of state ac­
tion. In Burton, where, petitioner was neither arrested nor 
prosecuted, this element was furnished by the facts that, 
inter alia, “the authority, and through it the state has not 
only made itself a party to the refusal of service, but has 
elected to place its power, property and prestige behind the 
admitted discrimination.” 365 U.S. 715, at 725. In the in­
stant suit state participation bites more deeply for peti­
tioners have by Alabama courts been branded criminals 
and relegated to “30 days hard labor for the City.”

The “property” right (racial discrimination in accord­
ance with state custom supported by state law) within a 
single store open to the public which Alabama seeks to 
preserve by applying the Birmingham trespass ordinance, 
is so narrow as to not deserve—in face of the Fourteenth 
Amendment—state protection. Indeed, is the kind of “prop­
erty right” which many states have taken away without, 
this Court has held, denying due process of law. Railway 
Mail Ass’n v. Corsi, 326 U.S. 88, 93, 94. It is not the sort 
of “property” right involving considerations entitled to 
high constitutional protection as, for example, the right of 
privacy treated in Mapp v. Ohio, 367 U.S. 643 and see Poe



27

v. Ullman, 367 U.S. 497. Cf. Frank v. Maryland, 359 U.S. 
360. Here, indeed, it is a case where the right of private 
property in a store, part of the public life of the community, 
should be “limited by the neighborhood of principles of 
policy which are other than those on which the particular 
right is founded. . . . ” Hudson County Water Co. v. 
McCarter, 209 U.S. 349, 356. These principles of policy 
are the principles of the Fourteenth Amendment which 
forbid the state to enforce racial discrimination. To make 
policemen ushers within public stores, whose duties are to 
direct the respective races here and there under threat of 
jail sentence, petitioners submit, far exceeds anything the 
Fourteenth Amendment ever has permitted.

III.
The convictions deny due process o f law in that they 

rest on an ordinance which fails to specify that peti­
tioners should have obeyed commands to depart given  
by persons who did not establish authority to issue 
such orders at the tim e given.

In the courts below petitioners asserted that the ordi­
nance in question as applied to them denied due process 
of law secured by the Fourteenth Amendment to the Con­
stitution of the United States in that it did not require that 
the persons requesting them to leave the dining areas estab­
lished or, indeed, asserted their authority to make the 
demands. In none of the ten records before this court did 
the persons who demanded that petitioners leave, first 
inform petitioners or demonstrate to them that they had 
authority to request that the petitioners leave the areas 
in question. Only in one pair of cases (Parker 18, West 21) 
did the witness say that he “identified” himself. Yet there 
was no evidence that he claimed authority to order peti­
tioners out of the dining area, or indeed, that the witness



28

possessed such authority. No one ordinarily may he ex­
pected to assume that one who tells him to leave a public 
place, into which the proprietor invited him and in which 
he has traded, is authorized to utter such an order when 
no claim of such authority is made.

This is especially true in the case of a Negro seating 
himself in a white dining area in Birmingham, Alabama— 
obviously a matter of controversy and on which any 
stranger might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when ordered to do so by a person who later turns out to 
have been in authority without a claim of authority at the 
time, it means as a practical matter that one must depart 
from a public place whenever told to do so by anyone; the 
alternative is to risk fine or imprisonment. Such a rule 
might be held a denial of due process. Cf. Lambert v. 
California, 355 U.S. 225. But if such is the rule the statute 
gives no fair warning; absent such notice petitioners surely 
were entitled to assume that one may go about a public 
place under necessity to observe orders only from those 
who claim with some definiteness the right to give them.

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

“The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or



29

transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the hu­
man will and a consequent ability and duty of the 
normal individual to choose between good and evil.” 
Morrissette v. U. S., 342 U.S. 246, 250.

■==-— ..- .................. ................. ....... ......  rc-'
Morrissette, of course, involved a federal statute as treated , C 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality.
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev.
55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an /, 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U.S. at 252-260.

Indeed, the ordinance in question is significantly different 
from Code of Alabama, Title 14, §426, which at least ex­
culpates those who enter with “legal cause or good excuse” 
a phrase missing from the Birmingham ordinance. Cf. 
Central Iron Co. v. Wright, 20 Ala, App. 82, 101 So. 815; 
McCord v. State, 79 Ala. 269; American Law Institute, 
Model Penal Code, Tentative Draft No. 2, §206.53, Comment.

On the other hand however, if Alabama were to read a 
scienter provision into this ordinance for the first time— 
which it has failed to do although the issue was squarely 
presented in these ten cases—the lack of the necessary ele­
ment of guilt, notice of authority, patent on the face of all 
ten records, would require reversal under authority of 
Garner v. Louisiana, supra; Thompson v. City of Louisville,
362 U.S. 199.



30

IY.

The decision below conflicts with decisions o f  this 
Court securing the right o f freedom  o f expression un­
der the Fourteenth Am endm ent to the Constitution o f  
the United States.

Petitioners were engaged in the exercise of free expres­
sion, by verbal requests to the management for service, 
and nonverbal requests to the management for service, 
and nonverbal requests for nondiscriminatory lunch coun­
ter service, implicit in their continued remaining in the 
dining area when refused service. As Mr. Justice Harlan 
wrote in Garner v. Louisiana: “We would surely have to 
be blind not to recognize that petitioners were sitting at 
these counters, when they knew they would not be served, 
in order to demonstrate that their race was being segre­
gated in dining facilities in this part of the country.” 
7 L. ed. 2d at 235-36. Petitioners’ expression (asking for 
service) was entirely appropriate to the time and place 
at which it occurred. They did not shout or obstruct the 
conduct of business. There were no speeches, picket signs, 
handbills or other forms of expression in the store pos­
sibly inappropriate to the time and place. Bather they 
offered to purchase in a place and at a time set aside for 
such transactions. Their protest demonstration was a part 
of the “free trade in ideas” (Abrams v. United States, 250 
U.S. 616, 630, Holmes, J ., dissenting), within the range of 
liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U.S. 359 
(display of red flag); Thornhill v. Alabama, 310 U.S. 88 
(picketing); West Virginia State Board of Education v. 
Barnette, 319 U.S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 U.S. 449 (freedom of association).

Questions concerning free speech expression are not 
resolved merely by reference to the fact that private prop-



31

erty is involved. The Fourteenth Amendment right to 
free expression on private property takes contour from 
the circumstances, in part determined by the owner’s pri­
vacy, his use and arrangement of his property. In Breard 
v. Alexandria, 341 U.S. 622, the Court balanced the “house­
holder’s desire for privacy and the publisher’s right to dis­
tribute publications” in the particular manner involved, 
upholding a law limiting the publishers’ right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U.S. 
141 where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of assertion 
and the action of the State, through its officers, its customs 
and its creation of the property interest are to be taken 
into account.

In this constitutional context it is crucial, therefore, that 
the stores implicitly consented to the continuance of the 
protest and did not seek intervention of the criminal law. 
For, this case is like Garner v. Louisiana, swpra, where 
Mr. Justice Harlan, concurring, found a protected area of 
free expression on private property on facts regarded as 
involving “the implied consent of the management” for the 
sit-in demonstrators to remain on the property. In none 
of the cases at bar did anyone other than the police request 
petitioners to leave the store. In one pair of cases there 
was not even a request to leave. the dining area. The 
pattern of police action, obviously, was to arrest Negroes 
in white dining areas. In no case does it appear that anyone 
connected with the store called the police or subsequently 
signed an affidavit or complaint. In each case the police 
officer proceeded immediately to arrest the petitioners with­
out any request to do so on the part of anyone connected 
with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at these



32

counters and tables, a dispute being resolved by persuasion 
and pressure in a context of economic and social struggle 
between contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U.S. 236.

But even to the extent that the stores may have acqui­
esced in the police action a determination of free expres­
sion rights still requires considering the totality of cir­
cumstances respecting the owner’s use of the property and 
the specific interest which state judicial action supports. 
Marsh v. Alabama, 326 U.S. 501.

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



33

Washington Superior Court, 45 Lab. Eel. Eef. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Eel. Eef. Man. 2357, 2361 (1959).-

In the circumstances of this case the only apparent 
state interest being subserved by these trespass prosecu­
tions is support of the property owner’s discrimination in 
conformity to the State’s segregation custom and policy 
and the express terms of the City Ordinance. This is all 
that the property owner can be found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . . of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the state has the right to prevent. 
Schenck v. United States, 249 U.S. 47, 52. The only “sub-~"~ 
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimination 
of racial discrimination, but this is not an “evil” within-—) 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U.S. 1; Terminiello v. Chi­
cago, 337 U.S. 1; Sellers v. Johnson, 163 F. 2d 877 (8th 
Circuit, 1947), cert, denied 332 U.S. 851.

Moreover, if free speech under these circumstances is 
to be curtailed, the least one has a right to expect is rea­
sonable notice in the ordinance under which convictions 
are obtained, to that effect. Here, absent a statutory pro­
vision that the person giving the “warning” have authority 
to do so, and that he be required to communicate that 
authority to the person asked to leave, petitioners were 
convicted on records barren of evidence that such authori­
tative notice was given. In effect they have been convicted 
of crime for refusing to cease their protests at the request 
of persons, who for all the records show, were strangers



34

at the time. The stifling effect of such a rule on free speech 
is obvious; under the Fourteenth Amendment, therefore, 
these convictions are doubly defective in curtailing First 
Amendment rights. See Wiemcm v. Updegraff, 344 U.S. 183 ; 
Smith v. California, 361 U.S. 147.

W herefore, fo r the foregoing reasons, it is respectfully 
subm itted tha t the petition for w rit of certio rari should be 
granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
10 Columbus Circle 
New York 19, N. Y.
A rthur D. Shores 
1527 Fifth Avenue, North 
Birmingham, Alabama
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. A dams, J r.
J. R ichmond P earson

Leroy D. Clark 
Michael Meltsner 
J ames M. Nabrit, III 

Of Counsel



APPENDIX



At a regular, adjourned, or special session of 
the Tenth Judicial Circuit of Alabama . . .

Judgment Entry in  Gober Case

T he State 

City oe B irmingham

—vs.—

J ames Gober

Appealed from Recorder’s Court 
(Trespass After Warning)

H onorable Geo. L ewis Bailes, Judge Presiding

This the 10th day of October, 1960, came Wm. C. Walker, 
who prosecutes for the City of Birmingham., and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in 
this cause, and the defendant being duly arraigned upon 
said Complaint for this plea thereto says that he is not 
guilty; and defendant files motion to strike, and said mo­
tion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same 
is hereby overruled, to which action of the Court in over­
ruling said motion the defendant hereby duly and legally 
excepts; and the defendant files demurrers, and said 
demurrers being considered by the Court, it is ordered 
and adjudged by the Court that said demurrers be and 
the same are hereby overruled, to which action of the 
Court in overruling said demurrers the defendant hereby 
duly and legally excepts; and the defendant files motion 
to exclude the evidence, and said motion being considered



2a

by the Court, it is ordered and adjudged by the Court 
that said motion be and the same is hereby overruled, to 
which action of the Court in overruling said motion, the 
defendant hereby duly and legally excepts; and on this 
the 11th day of October, 1960, the Court finds the defen­
dant guilty as charged in the Complaint and thereupon 
assessed a fine of One Hundred ($100.00) dollars and 
costs against said defendant. It is therefore considered 
by the Court, and it is the judgment of the Court that 
said defendant is guilty as charged in said Complaint, 
and that he pay a fine of One Hundred ($100.00) dollars 
and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $100.00 and the costs 
of $5.00 accrued in the Recorder’s Court of the City of 
Birmingham, or to confess judgment with good and suf­
ficient security for the same, it is therefore considered by 
the Court, and it is ordered and adjudged by the Court, 
and it is the sentence of the Law, that the defendant, the 
said James Gober, perform hard labor for the City of 
Birmingham for fifty-two days, because of his failure to 
pay said fine and costs of $5.00 accrued in said Recorder’s 
Court, or to confess judgment with good and sufficient 
security therefor.

It is further considered by the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law, that the defendant, the said James Gober, perform 
additional hard labor for the City of Birmingham for 
thirty days, as additional punishment in this cause.

And the costs legally taxable against the defendant in this 
cause amounting to forty-eight and 75/100 ($48.75) dollars, 
not being presently paid or secured, and $4.00 of said 
amount being State Trial Tax, $3.00, and Law Library

Judgment Entry in Gober Case



3a

Tax, $1.00, leaving forty-four and 75/100 ($44.75) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for sixty days, at the rate of 75 cents per day to pay 
said costs. It is further ordered by the Court that after 
the sentence for the City of Birmingham has expired, that 
the City authorities return the defendant to the County 
authorities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while 
in jail, for which let execution issue.

And on this the 11th day of October, 1960, the defendant 
files motion for a new trial in this cause, and said motion 
coming on to be heard and determined by the Court, it is 
ordered by the Court, and it is the judgment of the Court 
that said motion be and the same is hereby overruled.

And notice of appeal being given, and it appearing to 
the Court that, upon the trial of this cause, certain ques­
tions of Law were reserved by the defendant for the con­
sideration of the Court of Appeals of Alabama, it is 
ordered by the Court that the execution of the sentence 
in this cause be and the same is hereby suspended until 
the decision of this cause by said Court of Appeals of 
Alabama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.

Judgment Entry in Gober Case



4a

T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS
October Term, 1960-61 

6 Div. 797

Opinion o f Harwood, Presiding Judge

J ames Gober 

City of B irmingham

A P P E A L  FR O M  JE F F E R S O N  C IR C U IT  C O U R T

H arwood, Presiding Judge

This appellant was first convicted in the Recorder’s 
Court of the City of Birmingham for violating Section 
1436 of the City Code of Birmingham, Alabama, 1944.

Section 1436, supra, is as follows:
“Sec. 1436, After Warning. Any person who enters 

into the dwelling house, or goes or remains on the 
premises of another, after being warned not to do so, 
shall, on conviction, be punished as provided in Section 
4, provided, that this Section shall not apply to police 
officers in the discharge of official duties.”

On his conviction in the Recorder’s Court, the appellant 
perfected an appeal to the Circuit Court of Jefferson 
County, where he was again adjudged guilty, and punish­
ment was imposed.



5a

The complaint filed in the Circuit Court reads:
“Comes the City of Birmingham, Alabama, a munic­

ipal corporation, and complains that James Gober, 
within twelve months before the beginning of this 
prosecution and within the City of Birmingham or the 
police jurisdiction thereof, did go or remain on the 
premises of another, said premises being the area used 
for eating, drinking, and dining purposes and located 
within the building commonly and customarily known 
as Pizitz Department Store, located at 1821 2nd Avenue, 
North, Birmingham, Alabama, after being warned not 
to do so, contrary to and in violation of Section 1436 
of the General City Code of Birmingham of 1944.”

The evidence presented by the City in the trial below 
tends to show that this appellant, together with one James 
Davis, went to the cafeteria or lunch room in the Pizitz 
store and seated themselves at a table. According to the 
appellant, they could not obtain service from the waitresses.

Shortly, Dick Pizitz, assistant to the President of Pizitz, 
arrived and asked the appellant and Davis to leave, and 
told them they could be served downstairs. The appellant 
and Davis refused to leave. Either the appellant or Davis, 
upon refusing to leave, suggested that the police be called.

In response to instructions from a superior officer, a 
police officer of the City of Birmingham went to the 
restaurant. He found the appellant and Davis still seated 
at a table, and placed both under arrest.

This being an appeal from a conviction for violating a 
city ordinance, it is quasi criminal in nature, and subject 
to rules governing civil appeals. Accordingly we will limit 
our review to errors assigned and argued in appellant’s, 
brief. Fiorella v. City of Birmingham, 35 Ala. App. 384,

Opinion of Harwood, Presiding Judge



6a

48 So. 2d 761; cert. den. 254 Ala. 515, 48 So. 2d 768; 
cert. den. 71 S. Ct. 506, 340 U. S. 942, 95 L. Ed. 680; 
Ellis v. City of Sylacauga, 36 Ala. App. 687, 63 So. 2d 33; 
Parks v. City of Montgomery, 38 Ala. App. 681, 92 So. 
2d 683.

In the proceedings below the appellant filed a motion 
to strike the complaint, which motion was overruled. This 
ruling is asserted as error in Assignment of Error No. 1.

A motion to strike is not the proper method of testing 
the sufficiency of a complaint. Taylor v. City of Birming­
ham, 35 Ala. App. 133, 45 So. 2d 53; Byrum v. Pharo, 240 
Ala. 564, 200 So. 622. Assignment of Error No. 1 is there­
fore without merit.

Appellant’s Assignment of Error No. 2 avers that the 
court erred in overruling his demurrer to the complaint.

Ground 1 of the demurrer asserts that the complaint 
does not charge the defendant with any offense under the 
laws or Constitution of the State of Alabama; Ground 2, 
that the complaint is insufficient to support a prosecution 
in that no offense is charged corrigible by the court; 
Ground 3, that the complaint is so vague and uncertain 
as to not apprise the defendant of what he is called upon 
to defend.

Pretermitting other possible defects, it is clear that all 
of the grounds are general in nature, and in no wise point 
out any specific defect in the complaint.

For this reason alone the lower court was justified in 
refusing to examine the complaint for defects therein, and 
could properly overrule the demurrer, Oliveri v. State, 
13 Ala. App. 348, 69 So. 357, and a trial court will not be 
put in error for overruling a demurrer based on general 
grounds which are not sufficiently specific to point out an 
alleged defect in the pleading. Cabiness v. City of Tusca-

Opinion of Harwood, Presiding Judge



7a

loosa, 39 Ala. App. 538, 104 So. 778; Barber v. Hollon, 
265 Ala. 323, 91 So. 2d 229.

In brief counsel for appellant argues that the complaint 
is insufficient in not setting forth by whom the appellant 
was warned to leave the premises.
, No ground of the demurrer raised this point in the 

court below. Even if the complaint be defective in this 
regard, a premise we do not accept, the defect was amend­
able. Sec. 238, Tit. 7, Code of Alabama 1940, provides:

“Either before or after judgment on demurrer, 
the court must permit an amendment of the plead­
ings ; # * # ”

This section is broad and comprehends all pleadings 
except indictments, and authorizes amendment of com­
plaints in prosecutions for violation of city ordinances, 
as though it were a complaint in a civil action. Thomas 
v. State, 58 Ala. 365.

The alleged defect not having been in any wise raised 
in the court below, and not pointed out by demurrer, is 
not available on appeal, and will not be considered. Mc- 
Elhaney v. Singleton, 270 Ala. 162, 117 So. 2d 376; Camp­
bell v. Jackson, 257 Ala. 618, 60 So. 2d 252.

Grounds 4, 5, 6, 7 and 8 assert the invalidity of the 
ordinance (Sec. 1436, supra) on various constitutional 
grounds, as applied to this defendant. (Italics ours.) No 
unconstitutional application of the ordinance to this defen­
dant appears from any of the pleading. Such unconstitu­
tional application would be a matter of evidence. These 
grounds, setting up a speaking demurrer, necessitated an 
overruling of the demurrer in this aspect. Brown v. City of 
Fairhope, 265 Ala. 596, 93 So. 2d 419; Kalas v. McMahon, 
36 Ala. App. 238, 54 So. 2d 322; United States Fidelity

Opinion of Harwood, Presiding Judge



8a

and Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 
So. 953.

Appellant’s Assignments of Error numbers 3 and 4, 
respectively, are to the effect that the lower court erred in 
overruling appellant’s motion to exclude the evidence, and 
in overruling appellant’s motion for a new trial. Counsel 
has made no attempt to separate these assignments for 
argument in brief, and we will treat them jointly, though 
we wish to observe that the grounds supporting the motion 
to exclude the evidence are faulty in several aspects, partic­
ularly in setting forth erroneous legal principles as their 
bases. All grounds specified in support of the motion were 
defective, and the court properly overruled the motion.

Counsel has argued among other matters, various phases 
of constitutional law, particularly as affected by the Four­
teenth Amendment of the Federal Constitution, such as 
freedom of speech, in regard to which counsel state: “What 
has become known as a ‘sit-in’ is a different, but well un­
derstood symbol, meaningful method of communication.” 
Counsel has also referred to cases pertaining to restrictive 
covenants. We consider such principles entirely inap­
plicable to the present case.

Counsel also state in brief that “ * * * The prosecution 
adduced no evidence to prove that they had no such con­
stitutional right * * # ” that is, to remain in the restaurant 
after having been requested to leave. In this, counsel are 
under a misapprehension as to the burden to be carried 
by the defense. The City having presented evidence tend­
ing to show that the appellant remained upon private 
premises after having been warned by an officer of the. 
company owner to leave, it was under no burden to go 
further and offer evidence that the appellant’s act was 
done without lawful excuse. This was defensive matter,

Opinion of Harwood, Presiding Judge



9a

the proof of which rested upon the appellant unless the 
evidence which proved the act also proved the excuse. 
Owens v. State, 74 Ala. 401.

As we interpret the argument of counsel for appellant, 
its tenor may well be illustrated by the following quota­
tions from the. brief:

“Due process and equal protection demand that a 
Negro be accorded the right to sit at eating counters 
of privately owned businesses, if he has been a cus­
tomer in other departments of the store.

# # # # #
“That the premises were privately owned should not 

detract from the high constitutional position which 
such free expression deserves.”

We know of no warrant in law validating the principles 
asserted by counsel.

As aptly stated in Browder v. Gayle, 142 F. Supp. 707:
“In their private affairs, in the conduct of their 

private businesses, it is clear that the people them­
selves have the liberty to select their own associates 
and the persons with whom they will do business, un­
impaired by the Fourteenth Amendment. The Civil 
Eights Cases, 109 U. S. 33 S. Ct. 18, 27 L. Ed. 835. 
Indeed we think that such liberty is guaranteed by the 
due process of that Amendment.”

Even so, there is no question presented in the record 
before us, by the pleading, of any statute or ordinance 
requiring the separation of the races in restaurants. The 
prosecution was for a criminal trespass on private prop­
erty.

Opinion of Harwood, Presiding Judge



10a

The Pizitz Department Store is a private business—a 
private enterprise. It has no connection with any govern­
mental agency, federal, State, County or city.

The appellant entered upon the privately owned and 
operated premises of the store as a licensee by implied 
invitation. He had no interest in the premises. While a 
distinction exists between a licensee and an invitee insofar 
as liability for negligence on the part of the owner of the 
premises is concerned, the principles governing appel­
lant’s conduct in the present consideration must be gov­
erned by the rules pertaining to licensees, for in general, 
that is the position he occupied even though on the prem­
ises by an implied invitation.

The Pizitz store, being the owner of its premises, had 
a full right to limit the use of its own premises as it saw 
fit.

By its own choice it could limit the use of any part of 
its premises. It exercised this right to limit the use of 
its restaurant.

In the absence of statute, a restaurant owner may ac­
cept or reject customers on purely personal choice. Nance 
v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773; Noble 
v. Higgins, 158 N. Y. S. 867, 95 Misc. 328.

The right to operate a restaurant on its own premises 
under such conditions as it saw fit to impose was an in­
alienable property right possessed by the Pizitz store. 
The appellant would destroy this property right by at­
tempting to misapply the Fourteenth Amendment, ignoring 
the provision in that Amendment that grants the right to 
a private property owner to the full use of his property, 
that is: “Nor shall any state deprive any person of life, 
liberty, or property, without due process of law.” (Italics 
ours.)

Opinion of Harwood, Presiding Judge



11a

As stated in Williams v. Howard Johnson Restaurant 
(C. C. A. 4), 368 Fed. 2d 845, there is an “important dis­
tinction between activities that are required by the State 
and those which are carried out by voluntary choice and 
without compulsion by the people of the State in accord­
ance with their own desires and social practices.”

It is fundamental, and requires, no citation of authority, 
that the grantor of a license, which has not become coupled 
with an interest, may revoke the license at will.

When the appellant was requested to leave the restau­
rant by an official of the Pizitz store, and refused to leave, 
his status as an invited licensee was destroyed, and he 
was thereafter on the premises as a trespasser. As stated 
in Martin v. City of Struthers, 319 U. S. 147, 63 S. Ct. 
862, 87 L. Ed. 1313:

Traditionally the American law punishes persons 
who enter onto the property of another after having- 
been warned by the owner to keep off.”

Boynton v. Virginia, 81 S. Ct. 132, relied on by the ap­
pellant, was decided on the basis of the Federal Interstate 
Commerce Act, and is to the effect that said act prohibits 
the exclusion of Negroes from restaurants operated or 
controlled by an interstate carrier as a part of its busi­
ness. This doctrine cannot be said to create a constitu­
tional right to trespass on private property, regardless of 
race.

Likewise, we find the doctrine of Marsh v. State of Ala­
bama, 326 U. S. 501, 90 L. Ed. 265, inapplicable to the 
present case. The Marsh case, supra, concerned the right 
to distribute religious pamphlets on the sidewalk of a 
company owned town. As stated by the court, this town

Opinion of Harwood, Presiding Judge



12a

though owned by a company, had “all the characteristics 
of any other American town” insofar as municipal func­
tions were concerned, and therefore should be subjected 
to constitutional limitations imposed on regular public 
municipalities. Here we are concerned with a private 
owner in the use of his private property.

We find no merit in appellant’s Assignments numbers 
3 and 4.

Assignment of Error number 5 relates to a ruling con­
cerning the admission of certain evidence. Counsel has 
not argued this assignment in brief, and pretermit con­
sideration thereof.

Opinion of Harwood, Presiding Judge

A ffirmed.



13a

Order o f Affirmance in Gober Case

T he State oe Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 797

J ames Gober

-v.-

City oe B irmingham

A P P E A L  FR O M  JE F F E R S O N  C IR C U IT  COU RT

November 2, 1960 
Certificate F iled

January 30, 1961 
T ranscript F iled

April 18, 1961
Come the parties by attorneys, and argue and submit 

this cause for decision.
May 30, 1961

Come the parties by attorneys, and the record and 
matters therein assigned for errors, being submitted on 
briefs and duly examined and understood by the court, 
it is considered that in the record and proceedings of the 
Circuit Court there is no error. It is therefore considered 
that the judgment of the Circuit Court be in all things 
affirmed. It is also considered that the appellant pay the 
costs of appeal of this court and of the Circuit Court.



14a

T he S tate op Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 797

Order Denying Application for Rehearing
in Gober Case

J ames Gober

City of B irmingham

A P P E A L  FR O M  JE F F E R S O N  C IR C U IT  CO U RT

June 14, 1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant Appel­
lant a rehearing in said cause, and to reverse, revise and 
hold for naught its Judgment rendered on, to-wit, the 
30th day of May, 1961, and affirming the Judgment of the 
Circuit Court of Jefferson County, Alabama, and to enter 
an Order, reversing said Judgment.

A rthur D. Shores 
Orzell B illingsley, J r. 
P eter A. H all 
Oscar W. Adams, J r.
J. R ichmond P earson 

Attorneys for Appellant
June 20, 1961

It is ordered that the application for rehearing be and 
the same is hereby overruled. Per Curiam.



15a

Order Denying Petition  for Writ o f Certiorari 
to the Court o f  Appeals in  Gober Case

THE SUPREME COURT OF ALABAMA
Thursday, September 14, 1961

T he Court Met in  Special Session P ursuant 
to Adjournment

Present: All the Justices
6th Div. 762

Ex P arte : J ames Gober 

(R e : J ames Gober 

—vs.—

City op B irmingham)

Petitioner

JEFFERSON CIRCUIT COURT
Comes the Petitioner in the above styled cause and the 

Petition for Writ of Certiorari to the Court of Appeals 
being Submitted on Briefs and duly examined and under­
stood by the Court,

I t I s Ordered that the Writ of Certiorari be and the 
same is hereby denied and the petition dismissed at the 
cost of the petitioner for which cost let execution issue.

L ivingston, C.J., Simpson, Goodwyn and Coleman, JJ.,
Concur



16a

THE SUPREME COURT OF ALABAMA 
Thursday, November 2,1961 

T he Court Met P ursuant to Adjournment 

Present: All the Justices 
6th Div. 762

Order Denying Rehearing in Gober Case

Ex P arte : J ames Gober

Petitioner
(Re : J ames Gober 

—vs.—'

City op B irmingham)

JEFFERSON CIRCUIT COURT

I t I s H ereby Ordered that the application for rehearing 
filed in the above cause by the petitioner on September 28, 
1961, be and the same is hereby overruled.

(L ivingston, C.J., S impson and Coleman, JJ., concur.)



17a

At a regular, adjourned, or special session of 
the Tenth Judicial Circuit of Alabama . . .

T he State 

City of B irmingham

—-vs.—

R oosevelt W estmoreland

Judgment Entry in  Roosevelt W estmoreland Case*

Appealed from Recorder’s Court 
(Trespass After Warning)

H onorable Geo. L ewis Bailes, Judge Presiding
This the 10th day of October, 1960, came Wm. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in 
this cause, and the defendant being duly arraigned upon 
said Complaint for his plea thereto says that he is not 
guilty; and defendant files motion to strike, and said 
motion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same 
is hereby overruled, to which action of the Court in over­
ruling said motion the defendant hereby duly and legally 
excepts; and the defendant files demurrers, and said de- *

* The Judgment Entry, Order of Affirmance, Order Denying 
Rehearing, Order Denying Petition for Writ of Certiorari, and 
Order Denying Rehearing of Petition for Writ of Certiorari are 
without material difference in all of the other cases except Gober, 
as to which see pp. la  to 16a supra.



18a

murrers being considered by the Court, it is ordered and 
adjudged by tbe Court that said demurrers be and the 
same are hereby overruled, to which action of the Court 
in overruling said demurrers the defendant hereby duly 
and legally excepts; and the defendant files motion to ex­
clude the evidence, and said motion being considered by 
the Court, it is ordered and adjudged by the Court that 
said motion be and the same is hereby overruled, to which 
action of the Court in overruling said motion, the defen­
dant hereby duly and legally excepts; and on this the 11th 
day of October, 1960, the Court finds the defendant guilty 
as charged in the Complaint and thereupon assessed a fine 
of One Hundred ($100.00) dollars and costs against said 
defendant. It is therefore considered by the Court, and it 
is the judgment of the Court that said defendant is guilty 
as charged in said Complaint, and that he pay a fine of 
One Hundred ($100.00) dollars and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $100.00 and the costs of 
$5.00 accrued in the Recorder’s Court of the City of Bir­
mingham, or to confess judgment with good and sufficient 
security for the same, it is therefore considered by the 
Court, and it is ordered and adjudged by the Court, and 
it is the sentence of the Law, that the defendant, the said 
Roosevelt Westmoreland, perform hard labor for the City 
of Birmingham for fifty-two days, because of his failure 
to pay said fine and costs of $5.00 accrued in said Re­
corder’s Court, or to confess judgment with good and suf­
ficient security therefor.

It is further considered by the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law, that the defendant, the said Roosevelt Westmoreland, 
perform additional hard labor for the City of Birmingham

Judgment Entry in Roosevelt Westmoreland Case



19a

for thirty days, as additional punishment in this cause.
And the costs legally taxable against the defendant in 

this cause amounting to fifty-two and 55/100 ($52.55) 
dollars, not being presently paid or secured, and $4.00 of 
said amount being State Trial Tax, $3.00, and Law Library 
Tax, $1.00, leaving forty-eight and 55/100 ($48.55) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for sixty-five days, at the. rate of 75  ̂ per day to pay said 
costs. It is further ordered by the Court that after the 
sentence for the City of Birmingham has expired, that the 
City authorities return the defendant to the County au­
thorities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while 
in jail, for which let execution issue.
. And on this the 11th day of October, 1960, the defendant 

files motion for a new trial in this cause, and said motion 
coming on to be heard and determined by the Court, it is 
ordered by the Court, and it is the judgment of the Court 
that said motion be and the same is hereby overruled.

And notice of appeal being given, and it appearing to 
the Court that, upon the trial of this cause, certain ques­
tions of Law were reserved by the defendant for the con­
sideration of the Court of Appeals of Alabama, it is 
ordered by the Court that the execution of the sentence in 
this cause be and the same is hereby suspended until the 
decision of this cause by said Court of Appeals of Ala­
bama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.

Judgment Entry in Roosevelt Westmoreland Case . .



20a

T he State of Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 805

Order o f  Affirmance in Roosevelt W estmoreland Case*

R oosevelt W estmoreland

City of B irmingham

A P P E A L  FR O M  JE F F E R S O N  C IR C U IT  COU RT

November 2, 1960 
Certificate F iled

January 30, 1961 
T ranscript F iled

April 18, 1961
Come the parties by attorneys, and argue and submit 

this cause for decision.
May 30, 1961

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is 
considered that in the record and proceedings of the Cir­
cuit Court, there is no error. It is therefore considered 
that the judgment of the Circuit Court be in all things 
affirmed, on authority of Gober v. City of Birmingham, 
6th Division 797, Ala. App. Ms. It is also considered that 
the appellant pay the costs of appeal of this court and of 
the Circuit Court.

See note p. 17a, supra.



21a

T he State oe Alabama—J udicial Department 

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 805

R oosevelt W estmoreland 

City of B irmingham

Order Denying Rehearing in
Roosevelt W estmoreland Case*

A P P E A L  FR O M  JE F F E R S O N  C IR C U IT  CO U RT

June 14, 1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on, to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson Countyf > Alabama, and to enter an 
Order, reversing said Judgment,

Arthur 0. Shores 
Orzell B illingsley, J r. 
P eter A. H all 
Oscar W. Adams, J r,
J. R ichmond P earson 
Attorneys for Appellant

June 20, 1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Per Curiam.

* See note p. 17a, supra.



22a

THE SUPREME COURT OF ALABAMA
Thursday, September 14, 1961

T he Court Met in  Special Session P ursuant 
to Adjournment

Present: All the Justices
6th Div. 753

Ex P arte : R oosevelt W estmoreland

Petitioner
(Re : R oosevelt W estmoreland 

—vs.—

City of B irmingham)

Order Denying Petition  for W rit o f  Certiorari in
Roosevelt W estmoreland Case*

JEFFERSON CIRCUIT COURT
Comes the Petitioner in the above styled cause and the 

Petition for Writ of Certiorari to the Court of Appeals 
being Submitted on Briefs and duly examined and under­
stood by the Court,

I t Is Ordered that the Writ of Certiorari be and the 
the same is hereby denied and the petition dismissed at 
the cost of the petitioner for which cost let execution issue.

L ivingston, C.J., S impson, Goodwyn and Coleman, JJ.,
Concur

* See note p. 17a, supra.



O r d e r  D e n y in g  R e h e a r in g  in  
R o o s e v e lt  W e s tm o re la n d  C ase*

THE SUPREME COURT OF ALABAMA 

Thursday, November 2,1961 
T he Court Met P ursuant to A djournment 

Present: All the Justices 
6th Div. 753

Ex P arte : R oosevelt W estmoreland

Petitioner
(R e : R oosevelt W estmoreland 

—vs.—

City of B irmingham)

JEFFERSON CIRCUIT COURT
I t I s H ereby Ordered that the application for rehearing 

filed in the above cause by the petitioner on September 28, 
1961, be and the same is hereby overruled.
(L ivingston, C.J., S impson and Coleman, JJ., concur.)

* See note p. 17a, supra.



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