Mitchell v. City of Charleston Petition for Writ of Certiorari to the Supreme Court of South Carolina

    Isr t h e

(Emtrt nf tht> States
O ctober T erm , 1961 

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

Charles F . B arr, R ichard M. C ounts, D avid Carter, 
M ilton  D. Greene  and J o h n n y  Clark ,

Petitioners,

T h e  C ity  of Columbia .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack Greenberg 
J ames M. N abrit, I I I  
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

M atthew  J .  P erry 
L incoln  C. J e n k in s , J r.

1107% Washington Street 
Columbia 1, South Carolina

Attorneys for Petitioners



I N D E X
PAGE

Citation to Opinion Below ......   1

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

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

Constitutional and Statutory Provisions Involved ..... 3

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

How the Federal Questions Were Raised.....................  6

Reasons For Granting the W rit...................................  8

I. The Decision Below Conflicts With Prior De­
cisions of This Court Which Condemn the Use 
of State Power to Enforce a State Custom of 
Racial Segregation ..........................................  8

II. The Decision Below Conflicts With Decisions 
of This Court Securing the Right of Freedom 
of Expression Under the Fourteenth Amend­
ment to the Constitution of the United States 19

Co n c l u s io n ...................................................................................    26

A p p e n d ix .............................................................................................   l a

T able op Cases

Abrams v. United States, 250 U. S. 616 ...............   20
Avent v. North Carolina, No. 85, October Term 1961 .. 10

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ..... 18
Boman v. Birmingham Transit Co., 280 F. 2d 531, note 

1 (5th Cir. 1960) ......................................................... 18



11

PAGE

Boynton v. Virginia, 364 U. S. 454 ................................ 9
Breard v. Alexandria, 341 U. 8. 622 ............................ 15, 20
Brown v. Board of Education, 347 XL S. 483 ................ . 10
Buchanan v. Warley, 245 U. S. 60 ............................11,19
Burton v. Wilmington Parking Authority, 365 U. S.

715 .............................................................................14,15

Cantwell v. Connecticut, 310 U. S. 296 ........................  25
Champlin Kef. Co. v. Corporation Com. of Oklahoma,

286 U. S. 210 .............................................................  25
City of Charleston v. Mitchell, filed Dec. 13, 1961,

-----S. C.----- , ------S. E. (2d) ........ .......................... 8
City of Greenville v. Peterson, filed Nov. 10, 1961

-----S. C .------ , 122 S. E. (2d) .................................  8
Civil Eights Cases, 109 IT. S. 3 ................................10,16
Cooper v. Aaron, 358 U. S. 1 ..........................................  19

District of Columbia v. John E. Thompson Co., 346 
U. S. 100 .................................................................... 13

Frank v. Maryland, 359 IT. 8. 360 ...............................  16
Freeman v. Eetail Clerks Union, Washington Superior 

Court, 45 Lab. Eel. Ref. Man. 2334 (1959) .............. 22

Garner v. Louisiana, 368 U. S. 157 ....14,16,17,18,19, 21, 25

Hudson County Water Co. v. McCarter, 209 U. S. 349 .... 15

Mapp v. Ohio, 367 U. S. 643, 6 L. ed. 2d 1081..............15,16
Marsh v. Alabama, 326 U. S. 501.......... ..................... 11, 21
Martin v. Struthers, 319 U. 8. 141................................ 20
Monroe v. Pape, 365 U. S. 167....................................... . 9
Munn v. Illinois, 94 U. 8. 113 .................................. 11,18

Napue v. Illinois, 360 U. S. 264 ...................................  9
N. A. A. C. P. v. Alabama, 357 U. S. 449 ..................... 20



Ill
PAGE

N. L. R. B. v. American Pearl Button Co., 149 P. 2d
258 (8th Cir. 1945) .....................................................  21

N. L. R. B. v. Fansteel Metal Corp., 306 U. S. 240 .... 21

People v. Barisi, 193 Mi sc. 934, 83 N. Y. S. 2d 277
(1948) ........................ .................................................  21

People v. King, 110 N. Y. 418, 18 N. E. 245 (1888) .... 13 
Peterson, et al. v. City of Greenville, 30 U. S. L.

Week 7236 ..................................................................  24
Pickett v. Kuclian, 323 111. 138, 153 N. E. 667, 49

A. L. R. 499 (1926) .................................................  13
Poe v. Ullman, 367 U. S. 497, 6 L. ed. 2d 989 .........  15

Railway Mail Ass’n v. Corsi, 326 U. S. 88................ 13,14
Republic Aviation Corp. v. N. L. R. B., 324 IT. S. 793 ....11, 21

Schenck v. United States, 249 U. S. 47........................ . 22
Screws v. United States, 325 U. S. 91 ........................  9
Shelley v. Kraemer, 334 U. S. 1 ........... ....9,10,11,15
Smith v. California, 361 U. S. 205 ................................ 25
State v. Gray, 76 S. C. 83 .................... ......................... 23
State v. Green, 35 S. C. 266 ............................    23
State v. Halfback, 40 S. C. 298 ....................................... 23
State v. Mays, 24 S. C. 190.................   23
State v. Tenney, 58 S. C. 215......................................... 23
State of Maryland v. Williams, Baltimore City Court,

44 Lab Rel. Ref. Man. 2357 (1959) ............................  22
Stromberg v. California, 283 U. S. 359 ......................... 20

Thompson v. City of Louisville, 362 U. S. 199.............  24
Thornhill v. Alabama, 310 U. S. 88 .....................15, 20, 21

United States v. Willow River Power Co., 324 U. S. 499 11



IV
PAGE

Western Turf Asso. v. Greenberg, 204 U. S. 359 ..........  13
West Virginia State Board of Education v. Barnette,

319 IT. S. 624 ............................................................  20
Winters v. New York, 333 U. S. 507 ............................  26

S tatutes

South Carolina Code, §15-909 .................. ....................  3 4

South Carolina Code, 1952, §16-386, as amended 1960 ..3, 4, 8

Oth er  A u thorities

Annotation 49 A. L. R. 505 ...... ............................. ....... 13

Konvitz, A Century of Civil Rights, Passim (1961) .... 14



1 st th e

ihtpmur Court of %  luttrsi Stairs
O ctober T erm , 1961 

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

Charles F. B arr, R ichard M. Counts, D avid Carter, 
M ilton  D. Greene  an d  J o h n n y  Clark ,

— v . — •

Petitioners,

T h e  C ity  oe Columbia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on December 14, 1961 
rehearing of which was denied January 8, 1962.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is re­
ported at 123 S. E. 2d 521 (1961) and is set forth in the 
appendix hereto, infra, pp. 8a-12a. The opinion of the Rich­
land County Court is unreported. and is set forth in the 
appendix hereto, infra, pp. la-7a.



2

Jurisdiction

The Judgment of the Supreme Court of South Carolina 
was entered December 14, 1961, infra, p. 12a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on January 8, 1961, infra, p. 13a.

Questions Presented

1. Whether the Court below denied petitioners’ rights 
under the due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the United 
States to freedom from state supported racial discrimina­
tion and freedom of expression, where petitioners have been 
convicted of the crimes of trespass and breach of the peace 
for having remained seated at the lunch counter of a li­
censed drug store which was open to the public (including 
petitioners), but was pursuing a practice of serving Negroes 
take-out food orders only while serving white persons at 
counter seats, in conformity with state custom of segrega­
tion, and where petitioners were ordered to leave solely on 
the basis of race and were arrested and convicted in sup­
port of the racially discriminatory practice.

2. Whether petitioners were denied their rights to free 
expression as protected by the due process clause of the 
Fourteenth Amendment:

(a) when convicted for engaging in a sit-in protest 
demonstration,

(b) and when said convictions were under statutes 
so vague as to give no fair warning that their conduct 
was prohibited.



3

Constitutional and Statutory Provisions Involved

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

2. This case involves Section 16-386, Code of Laws of 
South Carolina, 1952, as amended 1960:

16-386 Entry on lands of another after notice pro­
hibiting same.

Every entry upon the lands of another where any 
horse, mule, cow, hog or any other livestock is pastured, 
or any other lands of another, after notice from the 
owner or tenant prohibiting such entry, shall be a mis­
demeanor and be punished by a fine not to exceed one 
hundred dollars, or by imprisonment with hard labor 
on the public works of the county for not exceeding 
thirty days. When any owner or tenant of any lands 
shall post a notice in four conspicuous places on the 
borders of such land prohibiting entry thereon, a proof 
of the posting shall be deemed and taken as notice 
conclusive against the person making entry as afore­
said for the purpose of trespassing.

3. This case involves Section 15-909, Code of Laws of 
South Carolina, 1952:

15-909 Disorderly Conduct, etc.
The mayor or intendant and any alderman, council­

man or warden of any city or town in this State may 
in person arrest or may authorize and require any 
marshall or constable especially appointed for that pur­
pose to arrest any person who, within the corporate 
limits of such city or town, may be engaged in a breach 
of the peace, any riotous or disorderly conduct, open 
obscenity, public drunkenness, or any other conduct



4

grossly indecent or dangerous to the citizens of such 
city or town or any of them. Upon conviction before 
the mayor or intendant or city or town council such 
person may be committed to the guardhouse which, the 
mayor or intendant or city or town council is authorized 
to establish or to the county jail or to the county chain- 
gang for a term not exceeding thirty days and if such 
conviction be for disorderly conduct such person may 
also be fined not exceeding one hundred dollars; pro­
vided that this section shall not be construed to prevent 
trial by jury.

Statement

Petitioners, five Negro students, were arrested for par­
ticipating in a sit-in demonstration at the Taylor Street 
Pharmacy in the City of Columbia, South Carolina, and 
were convicted of trespass and breach of the peace in viola­
tion of Section 16-386, as amended, and Section 15-909, 
respectively, of the Code of Laws of South Carolina, 1952 
(E. 1). They were sentenced to pay a fine of one hundred 
dollars on each charge, or serve thirty days on each charge 
(R. 1).

Petitioners, students at the nearby Benedict College, 
entered the Taylor Street Pharmacy on March 15, 1960 in 
the afternoon. They proceeded to the lunch counter in the 
rear of the store, after some had made purchases in the 
front portion, and seated themselves at the lunch counter 
(R. 9, 39). The policy of the store was to serve Negroes 
on the same basis as whites at all places in the store except 
the lunch counter (R. 23). At the lunch counter Negroes 
could secure food to be removed from the store, but were 
not to sit at the counter and eat their purchases (R. 24). 
There was a general sign that the manager reserved the



5

right to refuse service, but there was no sign specifically 
barring use of the counter by Negroes (R. 25). The State 
police had alerted the manager that a sit-down demonstra­
tion would occur, and had detailed three policemen to the 
store (R. 3, 25). As petitioners sat down some of the white 
patrons at the counter stood up (R. 17). The manager came 
to the counter and informed petitioners that they “might 
as well leave” because they would not be served (R. 32). 
Petitioners did not leave at this request (R. 32). Police 
Officer Stokes then directed the manager to request again 
that petitioners leave, which he did (R. 18). Shortly there­
after the police officers arrested petitioners (R. 5). The 
manager had left the luncheon area after his announcement 
to the petitioners, and the police officers arrested petitioners 
without a direct request from him (R. 19, 21). The co-owner 
of the restaurant in addition to being informed by the 
police of the coming demonstration, testified that: “We 
[the police and himself] had a previous agreement to the 
effect, that if they did not leave, they would be placed under 
arrest for trespassing” (R. 29), and later:

“Q. Was it your idea to have these defendants ar­
rested, or was it the idea of the police department? 
A. I ’ll put it that it was the both of us’ idea, that if 
they were requested to leave and failed to leave, that 
they would be arrested” (R. 30).

The petitioners were well-dressed, orderly and did not 
physically interfere with any other customers throughout 
the whole of their request for service at the lunch counter 
(R. 8, 27). The co-owner of the restaurant replied affirma­
tively that there was no difference between the dress and 
demeanor of the petitioners and other customers “other than 
the color of their skin” (R. 27).



6

How the Federal Questions Were Raised

At the close of the trial in the Recorder’s Court of the 
City of Columbia, petitioners moved to dismiss the charges 
against them alleging: the evidence showed the arrests were 
State enforcement of discrimination based solely on the 
petitioners’ race and that petitioners were deprived of the 
liberty of protesting segregation through requesting to be 
served as others; all in violation of the due process and 
equal protection clauses of the Fourteenth Amendment to 
the United States Constitution (R. 46-50), The motion was 
denied (R. 50-52). Defendants also moved for arrest of 
judgment, or in the alternative, for a new trial raising the 
same issues as raised under the motion to dismiss (R. 54- 
55). These motions were denied (R. 55).

After considering petitioners’ exceptions (R. 57), the 
Richland County Court, on appeal held:

The State has not denied Defendants equal protec­
tion of the laws or due process of law within the Fed­
eral or State constitutional provisions.

And the proprietor can chase his customers without 
violating constitutional provisions. State v. Clyburn, 
101 S. E. (2d) 295, 247 N. C. 455; Williams v. Howard 
Johnson’s Restaurant, 268 F. (2d) 845; Slack v. At­
lantic White Towers, etc., 181 F. Supp. 124 (Dist. Court 
Md.) 284 F. (2d) 746” (R. 58).

In appealing to the Supreme Court of South Carolina, 
petitioners set forth the following exceptions to the judg­
ment below (R. 63-64).

Exceptions
3. The Court erred in refusing to hold that the evi­

dence shows conclusively that the arresting officers



7

acted in the furtherance of a custom, practice and 
policy of discrimination based solely on race or color, 
and that the arrests and convictions of appellants under 
such circumstances are a denial of due process of law 
and the equal protection of the laws, secured to them 
by the Fourteenth Amendment to the United States 
Constitution.

4. The Court erred in refusing to hold that the evi­
dence establishes merely that at the time of their 
arrests appellants were peaceably upon the premises 
of Taylor Street Pharmacy as customers, visitors, 
business guests or invitees of a business establishment 
performing economic functions invested with the pub­
lic interest, and that the procurement of the arrest of 
appellants by management of said establishment under 
such circumstances in furtherance of a custom, prac­
tice in and policy of racial discrimination is a violation 
of rights secured appellants by the due process and 
equal protection clauses of the Fourteenth Amendment 
to the United States Constitution.

The Supreme Court of South Carolina disposed adversely 
of all of petitioners’ constitutional claims. After a summary 
of the facts, the court stated:

The questions involved are stated in appellants’ 
brief as follows:

1. Did the Court err in refusing to hold that under 
the circumstances of this case, the arrests and convic­
tions of appellants were in furtherance of a custom 
of racial segregation, in violation of the Fourteenth 
Amendment to the United States Constitution? (Ex­
ceptions 3, 4.)

A. Was the enforcement of segregation in this case 
by State Action within the meaning of the Four­
teenth Amendment?



8

B. Were appellants unwarrantedly penalized for ex­
ercising their freedom of expression in violation of 
the Fourteenth Amendment?
The questions designated 1, A and B, must he de­

cided adversely to appellants under City of Greenville
v. Peterson, filed November 10, 1961,----- - S. C. ----- ,
-----S. E. (2d)------, and City of Charleston v. Mitchell,
filed December 13,1961,-----S. C.------ , ----- 8. E. (2d)
----- . Each of these cases involved a sit-down demon­
stration at a lunch counter in a privately owned place 
of business and the precise questions raised by Excep­
tions 3 and 4 in the instant case were raised in those 
cases and overruled. In the City of Charleston case 
we affirmed a conviction for violation of Section 16-386 
as amended, which is the same section under which the 
appellants were convicted.

REASONS FO R GRANTING THE W RIT

I.

T he D ecision Below Conflicts W ith P rio r  D ecisions o f 
This C ourt W hich C ondem n th e  Use o f State Pow er to 
E nfo rce  a State Custom  of R acial Segregation.

In this case it is clear that the petitioners were refused 
service, ordered to leave the lunch counter, arrested and 
convicted of crimes on the basis of their race pursuant to 
and in the enforcement of a policy of racial discrimination. 
It is undisputed that the practice of the Taylor Street 
Pharmacy was to stand ready to serve food at its lunch 
counter seats to white persons and to refuse such service 
to all Negroes; that it was the policy to serve Negroes only 
when they were taking the food elsewhere to eat; and that 
petitioners were refused service solely because of their 
race and for no other reason. It is also apparent that the 
arrests were made to support this discrimination, and that



9

the trial court convicted petitioners on evidence plainly indi­
cating that race, and race alone, was the reason they were 
ordered to leave the lunch counter, and consequently ar­
rested and charged upon their failure to leave. This is 
thus a case where the difference in treatment to which peti­
tioners have been subjected is clearly a racial discrimina­
tion.

There are several dominant and relevant components of 
action by state officials in the chain of events leading to 
appellants’ conviction and punishment for violating the 
racially discriminatory customs. The police alerted the co­
owner of the store that an attempt to integrate the lunch 
counters would occur on the day the petitioners frequented 
the store (R. 3, 25). They had made an agreement with this 
proprietor to secure the arrest of the petitioners and had 
dispatched an extra detail of police to the premises prior 
to petitioners’ arrival (R. 3, 25). Although one police offi­
cer testified he was only on the scene to prevent violence 
(R. 7) the co-owner testified that the prearranged plan with 
the police was for the petitioners to be arrested if they 
failed to conform to requests to leave the white lunch coun­
ter (R. 30). It was the police officer who directed the man­
ager to give the final request to the petitioners to leave 
(R. 18). Here, as in all criminal prosecutions, there is fur­
ther state action by state officers in the persons of the 
prosecutors and judges; the official actions of such officers 
are “state action” within the meaning of the Fourteenth 
Amendment under clear authorities. The subject of judicial 
action as “state action” was treated exhaustively in part II 
of Chief Justice Vinson’s opinion in Shelley v. Kraemer, 334 
U. S. 1, 14-18; cf. Boynton v. Virginia, 364 U. S. 454. 
Policemen (Screws v. United States, 325 IT. S. 91; Monroe 
v. Pape, 365 U. S. 167) and prosecutors (Napue v. Illinois, 
360 U. S. 264) are equally subject to the restraints of the 
Fourteenth Amendment.



10

Ever since the Civil Bights Cases, 109 U. S. 3, 17, it has 
been conventional doctrine that racial discrimination when 
supported by state authority, violates the Fourteenth 
Amendment’s equal protection clause; and since Brown v. 
Board of Education, 347 U. S. 483, it has been settled that 
racial segregation constitutes a forbidden discrimination.

However, in this case the involvement of the public law 
enforcement and judicial officers in the racial discrimination 
practiced against petitioners through their use of the state’s 
criminal law machinery to support and enforce it, is now 
sought to be excused because, it is said, there is also “pri­
vate action” in the picture, and the state is said to be merely 
enforcing “private property” rights through its criminal 
trespass and breach of the peace laws. It is argued that 
the state is not really excluding and punishing Negroes, 
but only “trespassers” inciting a breach of the peace, and 
that the state stands ready to punish whites in these cir­
cumstances as well. While petitioners are aware of no 
case of a white person convicted for refusing to leave an 
all-Negro establishment under a trespass or breach of the 
peace law,1 there is no reason to doubt that this might occur 
in communities deeply wedded to the segregation customs. 
The answer made to a parallel argument in Shelley v. 
Kraemer, 334 U. 8. 1, 22, is apt—“Equal protection of the 
laws is not achieved through indiscriminate imposition of 
inequalities.”

But the argument that it is only trespassers inciting a 
breach of peace and not Negroes qua Negroes who are 
punished by the State, and thus it is private property rights 
and order and not racial discrimination that is being pre­
served by the state’s officers and laws, requires further anal-

1 White persons have been convicted for trespass when in com­
pany with Negroes in “white only” establishments. Avent v. North 
Carolina, No. 85, October Term 1961.



11

ysis. We shall examine in turn, the specific nature of the 
property right and the state’s legitimate interests includ­
ing protection of the right to privacy and general tran­
quility, and their relation to state customs and laws.

As a starting point it is fit to observe, as this Court did 
in Shelley v. Kraemer, supra, that the mere fact that prop­
erty rights are involved does not settle the matter. The 
Court said at 334 U. S. 1, 22:

“Nor do we find merit in the suggestion that prop­
erty owners who are parties to these agreements are 
denied equal protection of the laws if denied access to 
the courts to enforce the terms of restrictive covenants 
and to assert property rights which the state courts 
have held to be created by such agreements. The 
Constitution confers upon no individual the right to 
demand action by the State which results in the denial 
of equal protection of the laws to other individuals. 
And it would appear beyond question that the power of 
the State to create and enforce property interests must 
be exercised within the boundaries defined by the 
Fourteenth Amendment. Cf. Marsh v. Alabama, 326 
U. S. 501, 90 L. ed. 265, 66 S. Ct. 276 (1946).”

This Court has said on several occasions, “that dominion 
over property springing from ownership is not absolute and 
unqualified.” Buchanan v. Warley, 245 U. S. 60, 74; United 
States v. Willow River Power Co., 324 IT. S. 499, 510; Marsh 
v. Alabama, 326 U. S. 501, 506; cf. Munn v. Illinois, 94 U. S. 
113. As the Court said in Marsh, supra, “The more an 
owner, for his advantage, opens up his property for use 
by the public in general, the more do his rights become 
circumscribed by the statutory and constitutional rights of 
those who use it. Cf. Republic Aviation Corp. v. N. L. R. B., 
324 U. S. 793, 796, 802.”



12

Because it does matter a great deal what kind of property 
interest is being created and enforced by the State in given 
circumstances, we must inquire: What is the nature of the 
property right of the Taylor Street Pharmacy which is 
being enforced by the state in the criminal trespass charge?

The Taylor Street Pharmacy used the premises involved 
in its commercial business as a drug store opened to the 
public generally for the transaction of business including 
the sale of food and beverages at its lunch counter. This 
case does not involve enforcement of a general desire to 
keep everyone, or Negroes, or even these petitioners, from 
coming upon the premises. The white public was invited to 
use all the facilities of the drug store, and the Negro public 
was invited to use all facilities except the lunch counter 
stools. Negroes were even welcomed to purchase food at 
the lunch counter provided they stood up to purchase it 
and left the store to eat. The property interests enforced 
for the Taylor Street Pharmacy do not involve the integrity 
of a portion of its premises set aside for non-public use, 
such as space reserved for the owner or its employees. Nor 
does the property interest enforced here relate to an owner’s 
claim that a portion of its premises is being sought to be 
used for a purpose alien to its normal or intended function. 
Petitioners merely sought to use a lunch counter stool while 
consuming food sought to be purchased on the premises, the 
purpose for which the stools were being maintained. The 
state is not being called upon here to enforce a property 
owner’s general desire not to sell its goods to Negroes, since 
food and beverages were offered for sale to Negroes at 
this counter if they remained standing and took their pur­
chases away with them. And further the proprietor himself, 
by opening every other department of his store to Negroes 
on the same basis as whites, has in the most affirmative 
manner possible stated that the mere fact of the purchaser’s 
race is not disruptive of any operating business.



13

The property interest which is being enforced here is a 
claimed right to open premises to the public generally (in­
cluding Negroes) for business purposes, including the sale 
of food and beverages, while racially discriminating against 
Negroes qua Negroes at one of the facilities for the public 
in the business premises—including a claimed right to have 
Negroes arrested and criminally punished for failing to 
obey the owner’s direction for them to leave this portion of 
the store. This claimed property right—the right to racially 
discriminate against Negroes with respect to being seated 
in the circumstances indicated—is indeed a type of property 
interest. The question remains whether the States’ laws 
can give recognition and enforcement to such an interest 
without violating the Fourteenth Amendment.

Petitioners submit that it is readily apparent that the 
property interest being enforced against them on behalf of 
the Taylor Street Pharmacy, bears no substantial relation 
to any constitutionally protected interest of the property 
owner in privacy in the use of his premises. The State is 
not in this prosecution engaged in protecting the right to 
privacy. It has long been agreed by the courts that a state 
can “take away” this property right to racially segregate in 
public accommodation facilities without depriving an owner 
of Fourteenth Amendment rights. Western Turf Asso. v. 
Greenberg, 204 U. S. 359; Railway Mail Ass’n v. Corsi, 326 
IT. S. 88; Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49 
A. L. R. 499 (1926); People v. King, 110 N. Y. 418, 18 N. E. 
245 (1888); Annotation 49 A. L. R. 505; cf. District of 
Columbia v. John R. Thompson Co., 346 IT. S. 100.

And indeed a great number of states in our Nation have 
enacted laws making it criminal to engage in just the type 
of racially discriminatory use of piivate property which 
the Drug Company seeks state assistance in preserving



14

here.2 From the fact that the States can make the attempted 
exercise of such a “right” a crime, it does not follow neces­
sarily and automatically that they must do so, and must 
refuse (as petitioners here urge) to recognize such a 
claimed property right to discriminate racially in places 
of public accommodation. But the fact that the States 
can constitutionally prohibit such a use of property and 
that when they do so they are actually conforming to the 
egalitarian principles of the Fourteenth Amendment {Rail­
way Mail Ass’n v. Corsi, supra, at 93-94) makes it evident 
that the property interest asserted by the Taylor Street 
Pharmacy is very far from an inalienable or “absolute” 
property right. Indeed the property owner here is at­
tempting to do something that the state itself could not 
permit him to do on state property leased to him for his 
business use (Burton v. Wilmington Parking Authority, 
365 IT. S. 175), or require or authorize him to do by positive 
legislation (cf. Mr. Justice Stewart’s concurring opinion in 
Burton, supra).

A basic consideration in this case is that the pharmacy 
lunch counter involved is a public establishment in the 
sense that it is open to serve the public and is part of the 
public life of the community (Mr. Justice Douglas, con­
curring in Garner v. Louisiana, 368 U. S. 157, 176). As a 
consequence of the public use to which the property has 
been devoted by the owner, this case involves no real claim 
that the right to privacy is being protected by this use of 
the State’s trespass lawrs. And, of course, it does not follow 
from the conclusion that the State cannot enforce the racial 
bias of the operator of a lunch counter open to the public, 
that it could not enforce a similar bias by the use of tres­
pass laws against an intruder into a private dwelling or any

2 See collections of such laws in Konvitz, A Century of Civil 
Bights, Passim (1961).



15

other property in circumstances where the state was exer­
cising its powers to protect an owner’s privacy. This Court 
has recently reiterated the principle that there is a con­
stitutional “right to privacy” protected by the Due Process 
clause of the Fourteenth Amendment, Mapp v. Ohio, 367 
II. S. 643, 6 L. ed. 2d 1081, 1090, 1103, 1104; see also Poe 
v. Ullman, 367 U. S. 497, 6 L. ed. 2d 989, 1106, 1022-1026 
(dissenting opinions). It is submitted that due considera­
tion of the right to privacy affords a sound and rational 
basis for determining whether cases which might arise in 
the future involving varying situations should be decided 
in the same manner urged by petitioner here-—that is, 
against the claimed property interest. Only a very ab­
solutist view of the property “right” to determine those 
who may come or stay on one’s property on racial grounds 
—an absolutist rule yielding to no competing considera­
tions—would require that the same principles apply through 
the whole range of property uses, public connections, 
dedications, and privacy interests at stake. The Court 
has recognized the relation between the right of privacy 
and property interests in the past. See e.g. Thornhill v. 
Alabama, 310 U. S. 88, 105-106; Breard v. Alexandria, 341 
U. S. 622, 626, 638, 644.

Petitioners submit that a property right to determine on 
a racial basis who can stay on one’s property cannot be 
absolute at all, for this claimed right collides at some 
points with the Fourteenth Amendment right of persons 
not to be subjected to racial discrimination at the hand 
of the government. Burton v. Wilmington Parking Author­
ity, supra; Shelley v. Kraemer, supra. Mr. Justice Holmes 
said in Hudson County Water Co. v. McCarter, 209 U. S. 
349, 355.

All rights tend to declare themselves absolute to their
logical extreme. Yet all in fact are limited by the



16

neighborhood of principles of policy which are other 
than those on which the particular right is founded, 
and which become strong enough to hold their own 
when a certain point is reached.

Petitioners certainly do not contend that the principles 
urged to prevent the use of trespass laws to enforce racial 
discrimination in a lunch counter operated as a public busi­
ness would prevent the state from enforcing a similar bias 
in a private home where the right of privacy has its 
greatest meaning and strength. A man ought to have the 
right to order from his home anybody he prefers not to 
have in it, and ought to have the help of the government 
in making his order effective. Indeed, the State cannot 
constitutionally authorize an intrusion into a private home 
except in the most limited circumstances with appropriate 
safeguards against abuses. Mapp v. Ohio, supra; cf. Frank 
v. Maryland, 359 U. S. 360. Racial discrimination in a 
private home, or office, or other property where the right 
of privacy is paramount is one thing. Racial discrimina­
tion at a public counter is quite another thing indeed.

The involvement of the State of South Carolina as a 
whole entity in the present discrimination is so intimate 
and manifold that the state action standard may be satis­
fied or bolstered by other criteria than the participation 
of its police and courts in enforcing the discriminatory 
result complained of by petitioners. For racial discrimina­
tion has deep roots in South Carolina custom and law. 
“Custom” is specifically included in the opinion in the 
Civil Rights Cases as one of the forms of “state authority” 
which might be used in efforts to support a denial of Four­
teenth Amendment rights (109 U. S. 3, at 17). See also 
Mr. Justice Douglas concurring in Garner v. Louisiana, 
368 U. S. 157,176.



17

The Taylor Street Pharmacy in excluding Negroes from 
its lunch counter was following a custom of segregating 
Negroes in public life which is characteristic of South 
Carolina as a community, and which custom has been firmed 
up and supported by the segregation policies and laws of 
South Carolina as a policy.3

The segregation laws form an edifice created by law— 
the systematic segregation of Negroes in public life in 
South Carolina. There is good ground for belief that the 
segregation system, of which the custom enforced by the 
Taylor Street Pharmacy is a part, was brought into being 
or at least given firm contour in its beginning, by State 
laws.

As Mr. Justice Douglas wrote recently concurring in 
Garner v. Louisiana, 368 U. S. 157,181:

“Though there may have been no state law of municipal 
ordinance that in terms required segregation of the 
races in restaurants, it is plain that the proprietors 
in the instant cases were segregating blacks from whites 
pursuant to Louisiana’s custom. Segregation is basic

3 S. C. A. & J. R, 1952 (47) 2223, A. & J. R. 1954 (48) 1695 
repealing S. C. Const. Art. II, §5 (1895) (which required legis­
lature to maintain free public schools). S. C. Code §§21-761 to 
779 (regular school attendance) repealed by A. & J. R. 1955 (49) 
85; §21-2 (appropriations cut off to any school from which or to 
which any pupil transferred because of court order; §21-230(7) 
(local trustees may or may not operate schools); §21-238 (1957 
Supp.) (school officials may sell or lease school property whenever 
they deem it expedient); S. C. Code §40-452 (1952) (unlawful 
for cotton textile manufacturer to permit different races to work 
together in same room, use same exits, bathrooms, etc., $100 penalty 
and/or imprisonment at hard labor up to 30 days; S. C. A. & J. R. 
1956 No. 917 (closing park involved in desegregation suit) ; S. C. 
Code No. §§51-1, 2.1-2.4 (1957 Supp.) (providing for separate 
State Parks) §51-181 (separate recreational facilities in cities with 
population in excess of 60,000) ; §5-19 (separate entrances at 
circus) ; S. C. Code Ann. Tit. 58, §§714-720 (1952) (segregation 
in travel facilities).



18

to the structure of Louisiana as a community; the 
custom that maintains it is at least as powerful as 
any law. If these proprietors also choose segregation, 
their preference does not make the action ‘private’, 
rather than ‘state’ action. If it did, a minuscule of 
private prejudice would convert state into private ac­
tion. Moreover, where the segregation policy is the 
policy of a state, it matters not that the agency to 
enforce it is a private enterprise. Baldwin v. Morgan, 
supra; Boman v. Birmingham Transit Go., 280 F. 2d 
531.”

Finally the property involved in this case is “affected 
with a public interest,” Munn v. Illinois, 94 U. S. 113. 
By its use it has become “clothed with a public interest . . . 
[is] of public consequence, and affect[s] the community at 
large” (Id. at 126). This property is operated as a lunch 
counter under a license granted by the City of Columbia 
(R. 23). The licensing by the state demonstrates the pub­
lic’s interest in the business and the governmental recog­
nition of this public character. As Mr. Justice Douglas 
stated concurring in Garner v. Louisiana, 368 U. S. 157, 
184: “A license to establish a restaurant is a license to 
establish a public facility and necessarily imports, in law, 
equality of use for all members of the public.”

The charge of breach of the peace has the same posture 
as that of trespass and is even more simply a direct instance 
of state power being utilized to enforce segregation. There 
was absolutely no evidence of violence or threats of violence 
by petitioners directed toward anyone. The only testimony 
remotely resembling a disturbance of the peace was to 
the effect that some whites “stood up” when petitioners 
sat down; any inference of threatened violence by these 
persons would therefore stand on a weak reed. But even if 
the record contained a showing that these whites were about



19

to unlawfully attack petitioners, the prohibition of state 
enforcement of segregation under the Fourteenth Amend­
ment is of course a rejection of all the reasons why segrega­
tion might be thought good, including fear of disorder. 
Buchanan v. Warley, supra; Cooper v. Aaron, 358 U. S. 1.

It is submitted that the totality of circumstances in 
this case, including the actions of the State’s officers in 
arranging the arrests and prosecuting petitioners, the 
municipal licensing of the property involved and the con­
sequent public character of the business property involved, 
the plain and invidious racial discrimination involved in 
the asserted property rights being protected by the state, 
the absence of any relevant component of privacy to be 
protected by the state’s action in light of the nature of 
the owner’s use of his property, and the state custom of 
segregation which has created or at least substantially 
buttressed the type of discriminatory practices involved, 
are sufficient to require a determination that the petitioners’ 
trespass and breach of the peace convictions have abridged 
their rights under the Fourteenth Amendment,

II.
T he D ecision Below Conflicts W ith Decisions o f This 

C ourt Securing the  R ight o f F reedom  of E xpression 
U nder th e  F o u rteen th  A m endm ent to  the  C onstitution 
o f the  U nited States.

Petitioners were engaged in the exercise of free expres­
sion by means of nonverbal requests for nondiscriminatory 
lunch counter service which were implicit in their continued 
remaining at the lunch counter when refused service. The 
fact that sit-in demonstrations are a form of protest and 
expression was observed in Mr. Justice Harlan’s con­
currence in Garner v. Louisiana, supra. Petitioners’ ex­
pression (asking for service) was entirely appropriate to



20

the time and place at which it occurred. Petitioners did not 
shout, obstruct the conduct of business, or engage in any 
expression which had that effect. There were no speeches, 
picket signs, handbills or other forms of expression in the 
store which were possibly inappropriate to the time and 
place. Rather petitioners merely expressed themselves by 
offering to make purchases in a place and at a time set 
aside for such transactions. Their protest demonstration 
was a part of the “free trade in ideas” (Abrams v. United 
States, 250 U. S. 616, 630, Holmes, J dissenting), and was 
within the range of liberties protected by the Fourteenth 
Amendment, even though nonverbal. Stromberg v. Cali­
fornia, 283 U. S. 359 (display of red flag); Thornhill v. 
Alabama, 310 U. S. 88 (picketing); West Virginia State 
Board of Education v. Barnette, 319 U. S. 624, 633-624 
(flag salute); N. A. A. C. P. v. Alabama, 357 U. S. 449 
(freedom of association).

Petitioners do not urge that there is a Fourteenth Amend­
ment right to free expression on private property to all 
cases or circumstances without regard to the owner’s 
privacy, and his use and arrangement of his property. 
This is obviously not the law. In Breard v. Alexandria, 
341 U. S. 622 the Court balanced the “householder’s desire 
for privacy and the publisher’s right to distribute publica­
tions” in the particular manner involved, and upheld a law 
limiting the publisher’s right to solicit on a door-to-door 
basis. But cf. Martin v. Struthers, 319 U. S. 141 where 
different kinds of interests were involved with a cor­
responding difference in result.

As was true with the discussion above of the racial dis­
crimination issue, so the free expression issue is not re­
solved merely by reference to the fact that private property 
rights are involved. The nature of the property rights 
asserted and of the state’s participation through its of-



21

fleers, its customs, and its creation of the property interest, 
have all been discussed above in connection with the state 
action issue as it related to racial discrimination. Similar 
considerations should aid in resolving the free expression 
question.

In Garner v. Louisiana, Mr. Justice Harlan, concurring, 
found a protected area of free expression on private prop­
erty on facts regarded as involving “the implied consent 
of the management” for the sit-in demonstrators to remain 
on the property. It is submitted that even absent the 
owner’s consent for petitioners to remain on the premises 
of this pharmacy, a determination of their free expression 
rights requires consideration of the totality of circum­
stances respecting the owner’s use of the property and the 
specific interest which state judicial action is supporting. 
Marsh v. Alabama, supra.

In Marsh, supra, this Court reversed trespass convictions 
of Jehovah’s Witnesses who went upon the. privately owned 
streets of a company town to proselytize for their faith, 
holding that the conviction violated the Fourteenth Amend­
ment. In Republic Aviation Corp. v. N. L. R. B., 324 U. S. 
793, the Court upheld a labor board ruling that lacking 
special circumstances employer regulations forbidding all 
union solicitation on company property constituted unfair 
labor practices. See Thornhill v. Alabama, supra, involving 
picketing on company-owned property; see also N. L. R. B. 
v. American Pearl Button Co., 149 F. 2d 258 (8th Cir. 
1945); and compare the cases mentioned above with N. L. 
R. B. v. Fansteel Metal Corp., 306 U. S. 240, 252, condemn­
ing an employee seizure of a plant. In People v. Barisi, 193 
Misc. 934, 83 N. Y. S. 2d 277, 279 (1948) the Court held that 
picketing within Pennsylvania Railroad Station was not a



22

trespass; the owners opened it to the public and their 
property rights were “circumscribed by the constitutional 
rights of those who use it.” See also Freeman v. Retail 
Clerks Union, Washington Superior Court, 45 Lab. Eel. 
Ref. Man. 2334 (1959); and State of Maryland v. Williams, 
Baltimore City Court, 44 Lab. Eel. Eef. Man. 2357, 2361 
(1959).

In the circumstances of this case the only apparent state 
interest being subserved by this trespass prosecution, is 
support of the property owner’s discrimination in con­
formity to the State’s segregation custom and policy. This 
is all that the property owner has sought.

Where free expression rights are involved, the questions 
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 substan­
tive evil” which the state has the right to prevent. Schenck 
v. United States, 249 U. S. 47, 52. The only “substantive 
evil” sought to be prevented by this trespass prosecution 
is the elimination of racial discrimination and the stifling 
of protest against it; but this is not an “evil” within the 
State’s power to suppress because the Fourteenth Amend­
ment prohibits state support of racial discrimination.

The fact that the arrest and conviction were designed to 
short circuit a bona fide protest is strengthened by the 
necessity of the state court to make a strained and novel 
interpretation of the statutes in order to bring petitioners’ 
conduct within their ambit. Petitioners’ conviction for tres­
pass rests on an interpretation which flies in the face of the 
plain words of the statute, all prior applications, and ig­
nores the most recent legislative amendment to said statute. 
The trespass statute prior to amendment read:



23

Every entry upon the lands of another after notice 
from the owner or tenant prohibiting such entry shall 
be a misdemeanor and be punished by a fine not to 
exceed one hundred dollars or by imprisonment with 
hard labor on the public works of the county for not 
exceeding thirty days. When any owner or tenant 
of any lands shall post a notice in four conspicuous 
places on the borders of such land prohibiting entry 
thereon and shall publish once a week for four con­
secutive weeks such notice in any newspaper circulating 
in the county in which such lands are situated, a proof 
of the posting and of publishing of such notice within 
twelve months prior to entry shall be deemed and taken 
as notice conclusive against the person making entry 
as aforesaid for the purpose of hunting or fishing on 
such land. (Code of Laws, South Carolina, 1952.)

The amended statute under which petitioners’ convictions 
were had added the language which is italicized:

Every entry upon the lands of another where any 
horse, mule, cow, hog or any other livestock is pastured, 
or any other lands of another . . .

The Legislature obviously limited the statute to trespass 
on land primarily used for farm purposes nor was this a 
major innovation, for petitioners have been able to find 
no cases under the instant criminal statute or its predeces­
sors in which the trespass punished was not for entry on 
land (generally farm land) or some adjunctive land such 
as on the road. See State v. Green, 35 S. C. 266; State v. 
Mays, 24 S. C. 190; State v. Tenney, 58 S. C. 215; State v. 
Hallback, 40 S. C. 298; State v. Gray, 76 S. C. 83 (all cases 
of trespass on land or specifically farm land). The amend­
ment was merely declaratory, making explicit on the face 
of the statute the prior applications. The action of the court



24

below in extending the statute to business premises is, there­
fore, completely novel and unsupported by prior cases or 
the recent amendment.

Further, the statute in terms prohibits only going on the 
land of another after being forbidden to do so. The Su­
preme Court of South Carolina has now construed the stat­
ute to prohibit also remaining on property when directed 
to leave the following lawful entry. In short, the statute 
is now applied as if “remain” were substituted for 
“enter.” There is no history to support this second novel 
construction of the statute. No South Carolina case has 
ever adopted such a construction. The instant case is 
the first case which directly or indirectly convicts defen­
dants who went upon business premises with permission 
and merely refused to leave when directed for unlawful 
“entry.”

Subsequent to petitioners’ conviction the legislature of 
the State of South Carolina enacted into law Section 16-388 
a trespass statute making criminal failing and refusing “to 
leave immediately upon being ordered or requested to do 
so” the premises or place of business of another. See Peti­
tion for Writ of Certiorari in Peterson, et al, v. City of 
Greenville, filed in this Court February 26, 1962, 30 U. S. L. 
Week 3276.

There is no question but that petitioners and all Negroes 
were welcome within the Taylor Street Pharmacy—apart 
from the lunch counter stools. The lunch counter is an 
integral part of the store and can only be reached by “entry” 
into the store proper—to which petitioners were admittedly 
invited. Absent the special expansive interpretation given 
Section 16-386 by the Supreme Court of South Carolina 
the case would plainly fall within the principle of Thompson 
v. City of Louisville, 362 U. S. 199, and would be a denial



25

of due process of law as a conviction resting upon no evi­
dence of guilt. There was obviously no evidence that peti­
tioners entered upon land of a farmlike character “after 
having been forbidden to do so” and the conclusion that 
they did rests solely upon the special construction of the 
law.

The escape from invalidity of the conviction for lack of 
evidence of guilt via a construction completely unpredict­
able by the words of the statute or any prior applications 
renders the statue vague as being without sufficient prior 
definition of the acts prohibited. Under the novel interpre­
tation conduct is reached which the words of the statute do 
not fairly and effectively proscribe, thus depriving peti­
tioners of any notice that their acts would subject them 
to criminal liability.

The vice of vagueness is particularly odious where the 
right of free speech is put in jeopardy. Conduct involving 
free speech can only be prohibited within a statute “nar­
rowly drawn to define and punish specific conduct as con­
stitute a clear and present danger to a substantial interest 
of the state.” Cantwell v. Connecticut, 310 U. S. 296, 307, 
308; Garner v. Louisiana, 368 U. S. 157, 185 (Mr. Justice 
Harlan concurring). If the Supreme Court of South Caro­
lina can affirm the convictions of these petitioners by such 
a construction they have exacted obedience to a rule or 
standard that is so ambiguous and fluid as to be no rule 
or standard at all. Champlin Ref. Co. v. Corporation Com. 
of Oklahoma, 286 U. S. 210. Such a result cannot but have 
a “potentially inhibiting effect on speech.” Smith v. Cali­
fornia, 361 U. S. 205, 210. But when free expression is 
involved, the standard of precision is greater; the scope 
of construction must, therefore, be consequently less. If 
this is the case when a State court limits a statute it must 
a fortiori be the case when a State court expands the mean-



26

ing of the plain language of a statute. Winters v. New York, 
333 U. S. 507, 512.

The above threat to free speech is also present under the 
conviction for breach of the peace. Even under a strained 
inference that the standing up of the whites was a threat 
to attack the petitioners, such an attack would be com­
pletely unlawful. Yet, the imminence of such an attack 
by others is the sum and substance of the charge of breach 
of the peace against petitioners. Again, petitioners were 
not effectively warned by the statute that they were par­
ticipating in criminal conduct solely by being present to 
protest racial segregation where others might do unlawful 
violence on their persons. Free speech was similarly denied 
by conviction under the breach of the peace statute which 
in no wise definitively prohibited petitioners’ conduct.

CONCLUSION

W herefore, fo r  th e  fo reg o in g  reaso n s , i t  is re sp ec tfu lly  
su b m itted  th a t  th e  p e titio n  fo r  a  w r i t  of c e r t io ra r i  should  
be g ra n te d .

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
L eroy D. Clark

10 Columbus Circle 
New York 19, N. Y.

M atthew  J .  P erry 
L incoln  C. J e n k in s , J r.

1107y2 Washington Street 
Columbia 1, South Carolina

Attorneys for Petitioners



APPENDIX

I n  th e

RICHLAND COUNTY COURT

City  of Columbia,

— Y,—
Respondent,

B abb, et al.,
Appellants.

O rd er o f th e  R ichland  County Court

These Appeals from the Recorder’s Court of The City of 
Columbia were orally argued together before me and taken 
under advisement. The facts are largely undisputed. All 
of the Defendants are Negroes. Eckerd’s Drug Store and 
Taylor Street Pharmacy are separate stores in The City 
of Columbia. Besides filling prescriptions, each sell drugs 
and sundries and has a section where lunch, light snacks 
and soft drinks are served. Trade is with the general public 
in all the departments except the lunch department where 
only white people are served.

On one occasion, Bouie and Neal went into Eckerd’s and 
on another day the other Defendants went into the Taylor 
Street Pharmacy, sat down in the lunch department and 
waited to be served. All said they intended to be arrested. 
In each case, the manager of the store came up to them with 
a peace officer and asked them to leave. They refused to do 
so and were then placed under arrest and charged with 
trespass and breach of the peace. Bouie, in addition, was 
charged with resisting arrest. It is undenied that he re­
sisted.



2a

Order of the Richland County Court

Bouie and Neal were tried on March 25, 1960, and the 
other Defendants on March 30, 1960, before The Honorable 
John I. Rice, City Recorder of Columbia, without a jury; 
trial by jury having been waived by all the Defendants.

All the Defendants were convicted and sentenced and 
these appeals followed. Motions raising the constitutional 
questions were timely made. ,

There are 16 grounds of Appeals in the Bouie and Neal 
proceeding and 13 grounds of appeal in the proceeding 
involving the other Defendants, raising the following ques­
tions: (1) Did the State deny Defendants, who are Negroes, 
due process of law and equal protection of the laws within 
the Federal and State Constitutions either by using its 
peace officers to arrest them or by charging them with vio­
lating Sects. 16-386 (Criminal Trespass) and 15-909 (Breach 
of Peace) of the Code of Laws of South Carolina, 1952, as 
amended, when they refused to leave a lunch counter when 
asked by the manager thereof to do so? (Bouie and Neal 
Nos. 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, and 15; other Defen­
dants, Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13.) (2) Was 
there any substantial evidence pointing to the guilt of the 
Defendants? (Bouie and Neal, No. 8; other Defendants, 
No. 7.)

Since Defendants did not argue Bouie and Neal’s Excep­
tions 7, 9 and 16, I have considered them abandoned.

The State has not denied Defendants equal protection of 
the laws or due process of law within the Federal or State 
Constitutional provisions.

A lunch room is like a restaurant and not like an inn.
The difference between a restaurant and an inn is ex­

plained in Alpauyh v. Wolverton, 36 S. E. (2d) 907 (Court 
of Appeals of Virginia) as follows:



3a

Order of the Richland County Court

“The proprietor of a restaurant is not subject to the 
same duties and responsibilities as those of an inn­
keeper, nor is he entitled to the privileges of the latter. 
28 A. Jr., Innkeepers, No. 120, p. 623; 43 C. J. S., Inn­
keepers, No. 20, subsection b, p. 1169. His responsi­
bilities and rights are more like those of a shopkeeper. 
Davidson v. Chinese Republic Restaurant Co., 201 Mich. 
389, 167 N. W. 967, 969, L. R. A. 1919 E, 704. He is 
under no common-law duty to serve anyone who applies 
to him. In the absence of statute, he may accept some 
customers and reject others on purely personal 
grounds. Nance v. Mayflower Tavern, Inc., 106 Utah 
517, 150 P. (2d) 773, 776; Noble v. Higgins, 95 Misc. 
328, 158 N. Y. S. 867, 868.”

And the proprietor can choose his customers on the basis 
of color without violating constitutional provisions. State 
v. Clyburn, 101 S. E. (2d) 295, 247 N. C. 455; Williams v. 
Howard Johnson’s Restaurant, 268 P. (2d) 845; Slack v. 
Atlantic Whitetower, etc., 181 F. Sup. 124 (Dist. Court 
Md.), 284 P. (2d) 746.

In the Williams case, supra, Judge Soper, speaking for 
the Court of Appeals for The Fourth Circuit, said: “As an 
instrument of local commerce, the restaurant is not subject 
to the Constitution and statutory provisions above (Com­
merce Clause and Civil Rights Acts of 1875), and is at lib­
erty to deal with such persons as it may select.”

And in Boynton v. Virginia, ......  U. S......... , 81 S. Ct.
182, 5 L. Ed. (2d) 206, The Supreme Court of The United 
States took care to state:

“Because of some of the arguments made here it is 
necessary to say a word about what we are not deciding. 
We are not holding that every time a bus stops at a



4a

Order of the Richland County Court

wholly independent roadside restaurant the Interstate 
Commerce Act requires that restaurant service be sup­
plied in harmony with the provisions of that Act. We 
decide only this case, on its facts, where circumstances 
show that the terminal and restaurant operate as an 
integral part of the bus carrier’s transportation service 
for interstate passengers.”

I have reviewed all of the cases cited by both the City 
and the Defendants, and in addition have reviewed subse­
quent cases of the Court of Appeals and The United States 
Supreme Court, including the case of Burton v. Wilming­
ton Parking Authority, handed down on April 17, 1961, and 
find none applicable or controlling except the Williams and 
Slack cases, supra.

The Defendants, under South Carolina law, had no right 
to remain in the stores after the manager asked them to 
leave. Shramek v. Walker, 149 S. E. 331, 152 S. C. 88. As 
the Court quoted the rule, “while the entry by one person 
on the premises of another may be lawful, by reason of 
express or implied invitation to enter, his failure to depart, 
on the request of the owner, will make him a trespasser, 
and justify the owner in using reasonable force to eject 
him.”

If the manager could have ejected Defendants himself, 
he could call upon officers of the law to eject them for him.

Since the Defendants refused to leave, they were criminal 
trespassers under Sect. 16-386 and breached the peace under 
Sect. 15-909 of The Code of Laws of South Carolina, 1952, 
and their conviction was proper.

Shelly v. Kraemer, 334 U. S. 1, 92 L. Ed. 845, 68 S. Ct. 
836, 3 A. L. R. (2d) 441, and Barrows v. Jackson, 346 U. S. 
249, 97 L. Ed. 1586, 73 Supreme Court 1031 cited by the



5a

Order of the Richland County Court

Defendants are not in point. In both of these eases, there 
had been a sale of real estate to a non-eaucasian in violation 
of restrictive covenants. In the Shelly case, the Court held 
that the equity of court of the State could not be used 
against the non-caucasian to enforce the covenant. In the 
Barrows case, the court held that the covenant could not be 
enforced by an action at law for damages against the co­
covenanter, who broke the covenant.

In both of these cases, there were willing sellers and will­
ing purchasers. The purchasers paid their money and en­
tered into possession. Having entered, they had a right to 
remain.

In the cases before the Court, there were no two willing 
parties to a contract. True, the Defendants wanted to buy, 
but the storekeeper did not want to sell and the Defendants 
had no right to remain after being asked to leave. A white 
person would not have the right to remain after being 
asked to leave either. In either case, a person would be a 
trespasser. The Constitutions provide for equal rights, not 
paramount rights.

I have only to pick up my current telephone directory and 
look in the yellow pages to find at least four establishments 
listed under “Restaurants” that advertise that they are for 
colored or for colored only.

To say that a white proprietor may not call upon a police­
man to remove or arrest a Negro trespasser or a Negro pro­
prietor cannot call upon a policeman to remove or arrest a 
white trespasser would lead to confusion, lawlessness and 
possible anarchy. Certainly, the Constitutions intended no 
such result.

The fundamental fallacy in the argument of Defendants 
is the classification of the stores and lunch counters as public 
places and the operations thereof as public carriers.



6a

Order of the Richland County Court

A person, whatever his color, enters a public place or 
carrier as a matter of right. The same person, whatever his 
color, enters a store or restaurant or lunch counter by 
invitation.

That person’s right to remain in a public place depends 
upon the law of the land, and in a public carrier upon such 
law and such reasonable rules as the carrier may make, and, 
under the Constitution, neither the law nor rules may dis­
criminate upon the basis of color.

On the other hand, the same person has no right to enter 
a store, a restaurant, or lunch counter unless and until 
invited, and may remain only so long as the invitation is 
extended. Whether he enters or remains depends solely 
upon the invitation of the storekeeper, who has a full choice 
in the matter. The operator can trade with whom he wills, 
or he can, at his own whim and pleasure, close up shop.

There is no question but that the Defendants are guilty. 
They were asked to leave and they refused. They, there­
upon, were trespassers and such constituted a breach of the 
peace. In addition, Bouie admittedly resisted a lawful 
arrest.

The trespass statute (Section 16-386, as amended, Code 
of Laws of South Carolina, 1952) is not restricted to “pas­
ture or open hunting lands” as Defendants argue. The 
statute specifically says “any other lands”. In Webster’s 
New International Dictionary, the definition of “land” in 
“Law” is as follows:

“ (a) any ground, soil, or earth whatsoever, regarded as 
the subject of ownership, as meadows, pastures, woods, 
etc., and everything annexed to it, whether by nature, 
as trees, water, etc., or by man, as buildings, fences, 
etc., extending indefinitely vertically upwards and 
downwards, (b) An interest or estate in land; loosely 
any tenement or hereditament.”



7a

Order of the Richland County Court

The statute thus applies everywhere and without dis­
crimination as to color. There is no question but that it was 
designed to keep peace and order in the community.

Since Defendants had notice that neither store would 
serve Negroes at their lunch counters, they were trespassers 
ab initio. Aside from this however, the law is that even 
though a person enter property of another by invitation, he 
becomes a trespasser after he has been asked to leave. 
Shramek v. Walker, supra.

For the reasons herein stated, I am of the opinion that 
the judgments and sentences of the Recorder should be sus­
tained and the Appeals dismissed, and it is so ordered.

s /  J o h n  W .  C b e w s ,

Judge, Richland County Court.

Columbia, S. C., 
April 28, 1961.



8a

O pin ion  o f S uprem e C ourt o f South  C arolina

THE STATE OF SOUTH CAROLINA 
I n  t h e  S u p r e m e  C o u r t

T h e  C i t y  o p  C o l u m b i a , 

— v .—

Respondent,

C h a r l e s  F. B a r r , R ic h a r d  M . C o u n t s , D a v id  C a r t e r , 

M i l t o n  D. G r e e n e  a n d  J o h n n y  C l a r k ,

Appellants.

Appeal From Richland County 
John W. Crews, County Judge

Case No. 4777 
Opinion No. 17857 

Filed December 14,1961

O x n e r , A. J . : The five appellants, all Negroes, were 
convicted in the Municipal Court of the City of Columbia 
of trespass in violation of Section 16-386 of the 1952 Code, 
as amended, and of breach of the peace in violation of 
Section 15-909. Each defendant was sentenced to pay a fine 
of $100.00 or serve a period of thirty days in jail on each 
charge but $24.50 of the fine was suspended. From an order 
of the Richland County Court affirming their conviction, 
they have appealed.

The exceptions can better be understood after a review 
of the testimony. The charges grew out of a “sit-down” 
demonstration staged by appellants at the lunch counter



9a

Opinion of Supreme Court of South Carolina

of the Taylor Street Pharmacy in the City of Columbia, 
a privately owned business. In addition to selling articles 
usually sold in drugstores, this establishment maintains a 
lunch counter in the rear, separated from the front of the 
store by a partition. The customers sit on stools. The 
policy of this store is not to serve Negroes at the lunch 
counter although they are permitted to purchase food and 
eat it elsewhere. In a sign posted the privilege of refusing 
service to any customer was reserved.

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



10a

Opinion of Supreme Court of South Carolina

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

The questions involved are stated in appellants’ brief 
as follows:

“I. Did the Court err in refusing to hold that under 
the circumstances of this case, the arrests and con­
victions of appellants were in furtherance of a custom 
of racial segregation, in violation of the Fourteenth 
Amendment to the United States Constitution? (Ex­
ceptions 3, 4).

“A. Was the enforcement of segregation in this 
case by State Action within the meaning of the 
Fourteenth Amendment ?

“B. Were appellants unwarrantedly penalized for 
exercising their freedom of expression in violation 
of the Fourteenth Amendment 1
“II. Did the State fail to establish the corpus delicti 

or prove a prima facie case? (Exceptions 1, 2).”

The questions designated I, A and B, must be decided 
adversely to appellants under City of Greenville v. Peter-



11a

Opinion of Supreme Court of South Carolina

son, filed November 10, 1961, -----  S. C. ----- , ----- - S. E.
(2d) ----- , and City of Charleston v. Mitchell, filed Decem­
ber 13, 1961,-----  S. C. ----- , -----  S. E. (2d) ----- . Each
of these cases involved a sit-down demonstration at a lunch 
counter in a privately owned place of business and the 
precise questions raised by Exceptions 3 and 4 in the in­
stant case were raised in those cases and overruled. In the 
City of Charleston case we affirmed a conviction for viola­
tion of Section 16-386 as amended, which is the same section 
under which the appellants were convicted.

We think that Question II is based on exceptions too 
general to be considered. They are as follows:

“1. The Court erred in refusing to hold that the 
City failed to prove a prima facie case.

“2. The Court erred in refusing to hold that the 
City failed to establish the corpus delicti.”

The foregoing exceptions do not comply with Rule 4, 
Section 6 of this Court. They do not point out in what 
respect the City failed to make out a prima facie case or 
to establish the corpus delicti. We do not know to which 
of the two offenses involved these exceptions are directed. 
We are not aided by appellants’ brief. Only scant reference 
is there made to these two exceptions and apparently the 
position is taken that their determination is dependent upon 
the disposition of the other questions which we have held 
to be without merit.

It has been held that an exception to the effect that the 
judgment is contrary to the law and the evidence is too 
general to be considered. State v. Turner, 18 S. C. 103; 
State v. Cokley, 83 S. C. 197, 65 S. E. 174; State v. Davis, 
121 S. C. 350, 113 S. E. 491. The same conclusion has been



12a

Opinion of Supreme Court of South Carolina

reached with reference to an exception “that plaintiff failed 
to make out a case against defendant.” Concrete Mix, Inc. 
v. James, 231 S. C. 416, 98 S. E. (2d) 841. Other pertinent 
cases are reviewed in Hewitt v. Reserve Life Insurance 
Co., 235 S. C. 201, 110 S. E. (2d) 852. It was pointed out 
in Brady v. Brady, 222 S. C. 242, 72 S. E. (2d) 193, that 
“every ground of appeal ought to be so distinctly stated 
that the Court may at once see the point which it is called 
upon to decide without having to ‘grope in the dark’ to 
ascertain the precise point at issue.”

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

Affirmed.
T a y l o r , C.J., L e g g e , M o s s  and L e w i s , J.J., concur.



13a

1st the

SUPREME COURT OF SOUTH CAROLINA

C i t y  o f  C o l u m b i a ,

Respondent,
— a g a i n s t —

C h a r l e s  F. B a r r , R ic h a r d  M . C o u n t s , D a v id  C a r t e r , 

M i l t o n  D. G r e e n e  a n d  J o h n n y  C l a r k ,

Appellants.

Order of Denial of Petition for Rehearing
(Endorsed on back of Petition for Rehearing)

The within petition for rehearing is denied.
Filed: January 8,1962.

s/ C. A. T a y l o r  C. J.
s/ G. D e w e y  O x n e r  A. J. 
s /  L i o n e l  K. L e g g e  A. J. 
s /  J o s e p h  R. M o s s  A. J .  

s/ J. W o o d r o w  L e w i s  A. J.



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