Compromise and Settlement Agreement with Escambia County Defendants
Public Court Documents
December 2, 1986
4 pages
Cite this item
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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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In t h e
©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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