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

    I n th e

0 u|im np (Emtrt at tljp llm frii States
O ctober T er m , 1961 

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

C h risto ph er  M it c h e l l , J o h n  B ailey , J oseph  G erideau , 
J am es G ilbert  B l a k e , A ndrew  B r o w n , A lvin  D elford 
L a tten , F eed S m a ll , Cornelius  F ludd , C harles B u t ­
ler , F rancis  J o h n son , D avid P au l  R ichardson , J oseph  
J ones, A lered H a m il to n , H arvey G a n t t , A lle n  C oley , 
K e n n e t h  A ndrew  G e r m a n , Carolyn  J e n k in s , A rthu ree  
S in g leto n , J en n iese  B l a k e , D elores B ro w n , A n n ette  
G r a h a m , C ecile G ordon, V ern a  J ean  M cN eil , M inerva  
B r o w n ,

Petitioners,

C it y  of C h arlesto n .

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack  G reenberg 
C onstance B aker  M otley  
J am es M . N abrit , I I I  
M ic h ael  M eltsner

10 Columbus Circle 
New York 19, New York

M a t t h e w  J . P erry  
L in co ln  C. J e n k in s , J r .

HO714 Washington Street 
Columbia, South Carolina

J o h n  H . W righ ten  
R ussel B rown

Charleston, South Carolina
Attorneys for Petitioners



I N D E X
PAGE

Citation to Opinions Below .............................................  1

Jurisdiction .....   2

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

Statutory and Constitutional Provisions Involved .... 3
Statement ...........................................................................  3

How the Federal Questions Were Raised and Decided 
Below .... ........................................................  6

Reasons for Granting the Writ .....................    9

I. The Criminal Statute and Warrant Applied to 
Convict Petitioners Gave No Fair and Effective 
Warning That Their Actions Were Prohibited; 
Petitioners’ Conduct Violated No Standard Re­
quired by the Plain Language of the Law or Any 
Earlier Interpretation Thereof; Thereby Their 
Convictions Offend the Due Process Clause of 
the Fourteenth Amendment and Conflicts With 
Principles Enunciated by This Court ..............  9

II. The State of South Carolina Has Enforced 
Racial Discrimination Contrary to the Equal 
Protection and Due Process Clauses of the 
Fourteenth Amendment to the Constitution of
the United States ................................................  16

C onclusion  .......................................................................  23

A ppen d ix  ...........        l a

Order of the Charleston County Court..................  l a

Opinion of the Supreme Court of South Carolina .. 9a 

Order of Denial of Petition for Rehearing ........... 29a



11

T able op Cases

page

Boynton v. Virginia, 364 U. S. 454 ............................. 17,19
Breard v. Alexandria, 341 U. S. 622 .............................. 21
Buchanan v. Warley, 245 U. S. 60 ............... ....... ...... . 19
Burton v. Wilmington Parking Authority, 365 IT. S.

715 ................................................................................... 21

Cantwell v. Connecticut, 310 U. S. 296 .......................... 15
Champlin Rev. Co. v. Corporation Com. of Oklahoma,

286 U. S. 210...................... .............................................. lg
Chaplinsky v. New Hampshire, 315 IT. S. 568 ___ __  15
City of Columbia v. Barr, et al., ------  S. C. ------ , 123

S. E. 2d 521 ............................... ................................ 0
City of Greenville v. Peterson, 122 S. E. 2d 826 (No.

750, October Term, 1961) ............... ............................. 19
Civil Rights Cases, 109 IT. S. 3 ............................... ..19, 22

District of Columbia v. John R. Thompson Co., 346 
IT. S. 100 ._............ .........................................................  20

Garner v. Louisiana, 368 U. S. 157 ..........................15, 21, 22

Herndon v. Lowry, 301 U. S. 242 .................... .......... ...13,15
Hudson County Whiter Co. v. McCarter, 209 U. S. 349 .. 22

Lanzetta v. New Jersey, 306 U. S. 451.......... ....... 11,13,14

Mapp v. Ohio, 367 IT. S. 643, 6 L. ed. 2d 108.............. . 21
Marsh v. Alabama, 326 U. S. 501.....................................  19
McBoyle v. United States, 283 U. S. 25 ..........................12,15
Monroe v. Pape, 365 U. S. 167 .........................................  19
Munn v. Illinois, 94 U. S. 113 ..... ................................ 19

Napue v. Illinois, 360 U. S. 264 .....................................  19



I l l

People v. King, 110 N. Y. 419, 18 N. E. 245 (1888) ....  20
Peterson, et al. v. City of Greenville (No. 750, October

Term, 1961) .......... .............................. ...........................  10
Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49

A. L. R. 499 (1926) ............ ............................. ..........  20
Pierce v. United States, 314 U. S. 306 .......................... 11,12
Poe v. Ullman, 367 U. S. 497, 6 L. ed. 2d 989 ..................  21

Railway Mail Assn. v. Corsi, 326 IJ. S. 8 8 ......................  20
Randolpli v. Virginia, 202 Va. 661, 119 S. E. 2d 817

(No. 248, October Term, 1961) .................................  19
Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 .. 19 
Rex v. Storr, 3 Burr. 1698 ............................................. 10

Screws v. United States, 325 U. S. 91  .......................... 19
Shelley v. Kraemer, 334 U. S. 1  .............. .....................  19
Shramekv. Walker, 152 S. C. 88, 149 S. E. 331............ 10
State v. Avent, 253 N. C. 580, 118 S. E. 2d 47 (No. 85,

October Term, 1961) ....................................................  19
State v. Williams, 76 S. C. 135, 56 S. C. 783 ..................  10

Thompson v. City of Louisville, 362 U. S. 19 ..............  11
Thornhill v. Alabama, 310 U. S. 88 .................................  21

United States v. Cardiff, 344 U. S. 174.......................... 12
United States v. L. Cohen Grocery Co., 255 U. S. 81 .... 13
United States v. Weitzel, 246 U. S. 533 ......................12,13
United States v. Willow River Power Co., 324 U. S. 499 19 
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 12

PAGE

Western Turf Asso. v. Greenberg, 204 U. S. 359 
Winters v. New York, 333 U. S. 507 .......................

. . .  20 
15,16



IV

S tatutes

United States Code, Title 28, Section 1257(3) ........... 2
Code of Alabama, Title 14, §426 .................................. . 14

Compiled Laws of Alaska Ann. 1958, Cum. Supp. Vol.
Ill, §65-5-12 ...................... ........... ....................... ........  14

Arkansas Code, §71-1803 ............ ......... ........... ...............  14

Conn. Gen. Stat. (1958 Rev.), §53-103 .......................... 14
D. C. Code, §22-3102 (Supp. VII 1956) .......................... 14
Florida Code, §821.01 .................................................... 14

Hawaii Rev. Code, §312-1 ......................................... .......  14
Illinois Code, §38-565 ......................................................  14

Indiana Code, §10-4506 ................................. _.................  14

Mass. Code Ann., C. 266, §120 .....................................  14

Michigan Statutes Ann. 1954, Vol. 25, §28.820(1) ....... 14

Minnesota Statutes Ann. 1947, Vol. 40, §621.57 ........... 14
Mississippi Code, §2411 ................................................... 14

Nevada Code, §207.200 .................. ....................... ........... . 14

Ohio Code, §2909.21 ........................................................ 14

Oregon Code, §164.460 ......................... ........................... 14

S. C. Code, §5-19 .............................................................  23

S. C. Code, §21-2 ......................................... .....................  22

S. C. Code, §21-230(7) ....................................................  22

S. C. Code, §21-238 (1957 Supp.) .................... ............. 22

S. C. Code, §§21-761 to 779, repealed by A. & J. R.
1955 (49) 85

PAGE

22



V

S. C. Code, §40-452 (1952) .....    22

S. C. Code, §§51-1, 2.1-2.4 (1957 Supp.) ....................... 23

S. C. Code, §51-181 ......................................................... 23

S. C. Code Ann., Tit. 58, §§714-720 (1952) .......    23
S. C. A. & J. R. 1956 No. 917 ...................................  22

S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)
1695, repealing S. C. Const. Art. 11, §5 (1895) ....... 22

S. C. Code of Laws, Section 16-386 (1952 as amended)
3, 5, 6, 7, 
8, 9,10

S. C. Code of Laws, Section 16-388 ...........................  14
Code of Virginia, 1960 Replacement Volume, §18.1-173 14

Wyoming Code, §6-226 ..................................................... 14
Code of the City of Charleston, §33-39 ......................  5

O th e r  A u thorities

American Penal Law Institute, Model Penal Code, 
Tentative Draft No. 2, §206.53, Comment ..............  10

Annotation 49 A. L. R. 505 ......................................... 20

Ballantine, “ Law Dictionary” (2d Ed. 1948), 436 ....... 15

“Black’s Law Dictionary” (4th Ed. 1951) 625 ..............  15

Konvitz, A Century of Civil Bights (1961) ..............  20

PAGE



Ik t h e

(Emtrt nf tip Imtefr B M xb
O ctober T e r m , 1961 

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

C h risto ph er  M it c h e l l , J o h n  B aile y , J oseph  G erideau , 
J am es G ilbert B l a k e , A ndrew  B r o w k , A l v in  D elford 
L a t t e n , F red S m a ll , C ornelius F ludd , C harles B u t ­
ler , F rancis J o h n son , D avid P au l  R ichardson , J oseph  
J ones, A lfred  H a m il to n , H arvey G a n t t , A lle n  C oley , 
K e n n e t h  A ndrew  G e r m a n , Carolyn  J e n k in s , A rthu ree  
S in g leto n , J enn iese  B l a k e , D elores B r o w n , A n n ette  
G r a h a m , C ecile G ordon, V erna  J ean  M cN eil , M inerva  
B r o w n ,

Petitioners,

C it y  of Ch arlesto n .

PETITION FOR W RIT 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 13, 1961, 
rehearing of which was denied on January 8, 1962.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina is 
reported at 123 S. E. (2d) 512 and is set forth in the ap­
pendix hereto, infra, pp. 9a-28a. The opinion of the Charles­
ton County Court is unreported and is set forth in the 
appendix hereto, infra, pp. la-8a.



2

Jurisdiction

The Judgment of the Supreme Court of South Carolina 
was entered December 13, 1962, infra, pp. 9a-28a. Petition 
for Rehearing was denied by the Supreme Court of South 
Carolina on January 8, 1962, infra, p. 29a.

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

Questions Presented

1. Whether petitioners’ conviction of trespass, while en­
gaged in a sit-in demonstration at a department store lunch 
counter, offends the due process clause of the Fourteenth 
Amendment when the criminal statute applied to convict 
petitioners gave no fair and effective warning that their 
actions were prohibited, and their conduct violated no 
standard required by the plain language of the law or any 
earlier interpretation thereof.

2. Whether the due process and equal protection clauses 
of the Fourteenth Amendment permit a state to use its 
executive and judiciary to enforce racial segregation in 
conformity with a state custom of segregation by arresting 
and convicting petitioners of criminal trespass on the 
premises of a business which has for profit opened its 
property to the general public.



3

1. This ease involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

2. This case also involves Section 16-386, Code of Laws 
of South Carolina for 1952, as amended, which states:

Entry on lands of another after 
notice prohibiting same.

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

Statement

At 10:45 A.M. on April 1, 1960, petitioners, twenty-four 
Negro high school students entered the S. H. Kress and 
Company department store in Charleston, South Carolina 
(E. 11). They seated themselves at the lunch counter and 
sought service (R. 11, 17, 18, 50, 52). Rather than serve 
them, shortly after petitioners seated themselves (R. 11, 
16) about 11 A.M. (R. 50), the manager roped off the 
counter (R. 11,17, 47, 50), but did not request them to leave 
(R. 11). The police were called at 10:45 A.M. (R. 19) and

Statutory and Constitutional Provisions Involved



4

remained in the store for the rest of the day (R. 19). Peti­
tioners sat at the counter until about 4 :30 P.M. or for about 
five and one-half hours (R. 11, 23, 24, 48, 70). At no time 
during this period did anyone request petitioners to leave 
the counter (R. 11,17, 29, 48).

At about 4:30 P.M., the Chief of Police of Charleston 
(R. 11) told the manager that the police had received an 
anonymous phone call claiming that a bomb would go off 
in the Kress store at 4:45 P.M. (R. 21, 22, 23, 11). As a 
result of this conversation, the manager, in the presence 
of the Chief of Police (R. 31), approached petitioners and 
“ • • • asked them to leave for their own safety . . . ” (R. 11, 
23). Other patrons in the store were asked to leave by the 
police, not the manager or store employees (R. 37). Peti­
tioners remained seated at the counter (R. 12, 24). The 
Chief of Police then requested petitioners to leave (R. 24) 
and when they failed to respond, he placed them under 
arrest (R. 25). Petitioners were at no time informed that 
there was a “bomb scare” (R. 11, 24, 36). Later, the store 
was searched and no bomb was found (R. 41).

Kress and Company is a large nationwide chain (R. 13) 
which operates variety stores (R. 13). Negroes and whites 
are invited to purchase and are served alike in all depart­
ments of the store with the single exception that Negroes 
are not served at the lunch counter which is reserved for 
whites (R. 14, 15, 16). Negroes are not served at the lunch 
counter because, as the store manager testified, “he would 
be going against local customs” (R. 16). There was, how­
ever, no evidence that any signs or notices are present in 
the store indicating that Negroes are not served at the 
lunch counter.

Throughout the events that led to their arrest, peti­
tioners were completely orderly and peaceful (R. 38, 40).



5

Petitioners were charged under a warrant which alleged 
that they did

■‘unlawfully, knowingly and willfully commit a tres­
pass, in that they did refuse to leave the premises 
and property of S. H. Kress & Company, having been 
requested and ordered to leave, vacate and remove 
themselves from said premises all in violation of Title 
16, Section 386 of the Code of Laws of South Carolina 
for 1952, as amended.” [Emphasis added.]

Title 16, Section 386 states:

Entry on lands of another after 
notice prohibiting same.

“Every entry upon the lands of another where any 
horse, mule, cow, hog or any other livestock is pastured, 
or any other lands of another, after notice from the 
owner or tenant prohibiting such entry shall be a 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 con­
clusive against the person making entry as aforesaid 
for the purposes of trespassing.” [Emphasis added.]

Petitioners were also charged with a violation of Section 
33-39, Code of the City of Charleston in that they did 
“ interfere with . . . [an] officer . . .  of the police department 
of the City” when they did not leave the lunch counter 
when ordered to do so by the Chief of Police.

Petitioners were tried and convicted of both offenses in 
the Recorder’s Court of the City of Charleston without a



6

jury, and sentenced to pay fines of $50.00 or serve fifteen 
days in jail for each offense (E. 56), the sentences to run 
consecutively (E. 56).

Petitioners appealed to the Charleston County Court 
which affirmed the judgments of conviction of the Eecorder’s 
Court of the City of Charleston on June 26, 1961, infra, 
pp. la-8a.

They then appealed to the Supreme Court of South Caro­
lina which affirmed the judgment of conviction of trespass 
in violation of Title 16, Section 386 of the 1952 Code of 
Laws of South Carolina, as amended, and reversed the judg­
ment of conviction for the offense of interfering with a 
police officer on December 13, 1961, infra, pp. 9a-28a. The 
Supreme Court of South Carolina denied rehearing on Jan­
uary 8, 1962, infra, p. 29a.

'City of Columbia v. Barr, et al.,------S. C .-------• 123 S. E.
2d 521, a sit-in case involving the same trespass statute, 
was decided at the same time, and a petition for certiorari 
in that case is being submitted simultaneously with this one.

How the Federal Questions Were Raised 
and Decided Below

At the commencement of trial in the Eecorder’s Court, 
petitioners moved to dismiss the warrant against them on 
the ground that:

“ Title 16, Section 386 does not charge trespass, but it 
set out the entry after notice. In that there are no 
allegations in the warrant which shows an entry we 
feel as though the warrant is insufficient in that it does 
not substantially apprise the defendants of the crime 
set forth in this warrant . . . ” (E. 8).

The motion was overruled by the trial Court (E. 8).



7

Petitioners appealed to the Charleston County Court 
claiming error in that the warrant under which they were 
convicted did not set forth the offense charged, “ in that 
it does not specifically set forth the manner in which it 
is contended that the defendants entered the lands of an­
other after notice from the owner . . . thereby failing to 
provide the defendants with sufficient information to meet 
the charge against them . . . [in] deprivation of defendants’ 
liberty without due process of law, secured by the Four­
teenth Amendment to the United States Constitution” 
(R. 62).

The Charleston County Court ruled that the warrant 
set forth the offense charged and was not vague, uncertain 
and indefinite (R. 71). The Court held petitioners were 
trespassers under Title 16, Section 386 (R. 74).

Petitioners appealed this ruling to the Supreme Court 
of South Carolina (R. 78) asserting that the warrant did 
not apprise them of the nature and cause of the accusation 
against them (R. 78). Petitioners’ contended that Title 16, 
Section 386, only made criminal an entry upon the premises 
of another “ after notice from the owner or tenant pro­
hibiting such entry” , infra, p. 16a, and to convict petitioners 
on the ground that they remained upon the premises after 
notice to leave was to open the Statute to the vice of vague­
ness (R. 78). Relying principally on State v. Avent, 253 
N. C. 580, 118 S. E. 2d 47, petition for writ of certiorari 
pending in this Court, No. 85, October Term 1961, the South 
Carolina Supreme Court rejected petitioners’ contention 
holding that under Title 16, Section 386 a, person
who remains on the lands of another after being directed 
to leave is guilty of a wrongful entry even though the orig­
inal entrance was peaceful’ ”, infra, p. 18a. Under this 
construction of the statute, the warrant was not uncertain 
and indefinite, infra, pp. 13a-15a.



8

At the close of the City’s case in the trial court, defen­
dants moved to dismiss the case against them on the 
ground that “ . . . the Defendants were arrested on the 
basis of race and color under color of law to enforce the 
S. H. Kress and Company store racially discriminatory 
policy, thereby violating the Defendants right to due process 
of law and equal protection protected to them by the Four­
teenth Amendment of the United States Constitution” 
(R. 42, 43). The motion was denied (R. 43). The motion 
was renewed at the close of the trial (R. 53, 54), and again 
denied (R. 54). Defendants moved for a new trial and 
arrest of judgment on the same ground (R. 56-58). The 
motion was denied (R. 58). Defendants excepted to these 
rulings by the trial court (R. 63-65, 78, 79) and defendants’ 
exceptions were overruled, on the merits, by the Charleston 
County Court and the Supreme Court of South Carolina, 
infra, pp. 6a, 7a, 20a-24a. The Supreme Court of South 
Carolina, in disposing of petitioners’ contention that South 
Carolina, enforced racial discrimination held that “ Section 
16-386 of our code is not a racial segregation [statute],” 
infra, p. 21a, and that the acts of state officials in enforcing 
the trespass statute did not constitute “ state action en­
forcing racial segregation” infra, pp. 24a, 21a-23a.



9

REASONS FOR GRANTING THE WRIT

I.

The Criminal Statute and Warrant Applied to Con­
vict Petitioners Gave No Fair and Effective Warning 
That Their Actions Were Prohibited; Petitioners’ Con­
duct Violated No Standard Required by the Plain Lan­
guage of the Law or Any Earlier Interpretation There­
o f; Thereby Their Convictions Offend the Due Process 
Clause of the Fourteenth Amendment and Conflicts With 
Principles Enunciated by This Court.

Petitioners were convicted under Title 16, Section 386 
of the Code of Laws of South Carolina of 1952 which pro­
vides :

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 con­
clusive against the person making entry as aforesaid 
for the purpose of trespassing. [Emphasis added.]

Although the statute in terms forbids only entry on the 
land of another after notice prohibiting one to do so, the 
Supreme Court of South Carolina has now construed the 
statute to forbid also remaining on property when directed 
to leave following lawful entry, infra, pp. 18a-19a. In short, 
the statute is now applied as if “ remaining” were substi­



10

tuted for “ entry” . There is no history of such a construc­
tion of the statute.1 No South Carolina case has ever 
adopted such a construction. The statute, Section 16-386, 
was originally passed in the Nineteenth Century and al­
though amended on numerous occasions it has never lost 
its character as a measure intended to punish entry on 
farm land. The instant case is the first case which directly 
or indirectly convicts defendants who went upon property 
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 filed in this Court in Peterson 
et al. v. City of Greenville, No. 750, Oct. Term, 1961.

There is no question but that petitioners and all Negroes 
were welcome within the Kress store—apart from the lunch 
counter area (R. 14, 46, 47). The manager of the store 
testified that Negroes “are welcome to do business in those 
departments [other than the lunch counter]” (R. 16). The 
lunch counter is an integral part of the store (R. 11, 37, 
46) so that the only “ entry” petitioners made was to the 
store itself. There is no evidence of racial signs or notices 
of any kind at the lunch counter. Whatever petitioners’ 
knowledge of the store’s racial policy as it had been prac­

1 As authority for this construction the Supreme Court of South 
Carolina cites the charge to the jury in State v. Williams, 76 S. C. 
135, 56 S. C. 783, a murder case. No question of the meaning of 
criminal trespass was involved in that case. Shramek v. Walker, 
152 S. C. 88, 149 S. E. 331, also cited by the Supreme Court of 
South Carolina, was a civil suit for trespass. But civil and crim­
inal trespass have long been distinguished, the latter requiring, 
at common law, special circumstances such as breach of the peace. 
Rex v. Storr, 3 Burr. 1698. Cf. American Law Institute, Model 
Penal Code, Tentative Draft No. 2, §206.53, Comment.



11

ticed (and petitioners’ testified they thought they might be 
served (R. 47, 51, 52)) there was no suggestion that they 
had ever been forbidden to go to the lunch counter and 
request service.

Absent the special expansive interpretation given §16-386 
by the South Carolina Supreme Court the case would plainly 
fall within the principle of Thompson v. City of Louisville, 
362 U. S. 19, and would be a denial of due process of law 
as a conviction resting upon no evidence of guilt. There 
was obviously no evidence that petitioners entered the 
premises “after notice . . . prohibiting such entry” and 
the conclusion that they did rests solely upon the special 
construction of the law. Petitioners were not even charged 
with “ entry” but with trespass “ in that they did refuse to 
leave the premises” (R. 5).

Under familiar principles the construction given a state’s 
statute by its highest court determines its meaning. Peti­
tioners submit, however, that this statute has been judicially 
expanded to the extent that it does not give a fair and 
effective warning of the acts it now prohibits. Because of 
the expansive construction, the statute now reaches more 
than its words fairly and effectively define, and therefore, 
as applied it offends the principle that criminal laws must 
give fair and effective notice of the acts they prohibit.

The due process clause of the Fourteenth Amendment 
requires that criminal statutes be sufficiently explicit to 
inform those who are subject to them what conduct on their 
part will render them criminally liable. “All are entitled to 
be informed as to what the State commands or forbids” , 
Lametta v. New Jersey, 306 U. S. 451, 453, and cases cited 
therein in note 2.

Construing and applying federal statutes this Court has 
long adhered to the principle expressed in Pierce v. United 
States, 314 U. S. 306, 311:



12

. . . judicial enlargement of a criminal act by interpre­
tation is at war with a fundamental concept of the 
common law that crimes must be defined with appro­
priate definiteness. Cf. Lanzetta v. New Jersey, 306 
U. S. 451, and cases cited.

In Pierce, supra, the Court held a statute forbidding false 
personation of an officer or employee of the United States 
inapplicable to one who had impersonated an officer of the
T. V. A. Similarly in United States v. Cardiff, 344 U. S. 
174, this Court held too vague for judicial enforcement a 
criminal provision of the Federal Food, Drug, and Cosmetic 
Act which made criminal a refusal to permit entry or 
inspection of business premises “as authorized by” another 
provision which, in turn, authorized eertain officers to enter 
and inspect “after first making request and obtaining per­
mission of the owner.” The Court said in Cardiff, at 344
U. S. 174,176-177”

The vice of vagueness in criminal statutes is the treach­
ery they conceal either in determining what persons 
are included or what acts are prohibited. Words which 
are vague and fluid (cf. United States v. L. Cohen 
Grocery Co., 255 U. S. 81) may be as much of a trap 
for the innocent as the ancient laws of Caligula. We 
cannot sanction taking a man by the heels for refusing 
to grant the permission which this Act on its face 
apparently gave him the right to withhold. That would 
be making an act criminal without fair and effective 
notice. Cf. Herndon v. Lowry, 301 U. S. 242.

The Court applied similar principles in McBoyle v. United 
States, 283 U. S. 25, 27; United States v. Weitzel, 246 U. S. 
533, 543, and United States v. Wiltberger, 18 U. S. (5



13

Wheat.) 76, 96. Through these eases run a uniform ap­
plication of the rule expressed by Chief Justice Marshall:

It would be dangerous, indeed, to carry the principle, 
that a case which is within the reason or mischief of a 
statute, is within its provisions, so far as to punish 
a crime not enumerated in the statute, because it is 
of equal atrocity, or of kindred character, with those 
which are enumerated (Id. 18 U. S. (5 Wheat.) at 96).

The cases discussed above involved federal statutes con­
cerning which this Court applied a rule of construction 
closely akin to the constitutionally required rule of fair 
and effective notice. This close relationship is indicated 
by the references to cases decided on constitutional grounds. 
The Pierce opinion cited for comparison Lametta v. New 
Jersey, supra, and “cases cited therein,” while Cardiff men­
tions United States v. L. Cohen Grocery Go., supra, and 
Herndon v. Lowry, supra.

On its face the South Carolina trespass statute warns 
against a single act, i.e., entry upon the land of another 
“ after” notice prohibiting such. “ After” connotes a se­
quence of events which by definition excludes going on or 
entering property “before” being forbidden. The sense 
of the statute in normal usage negates its applicability 
to petitioners’ act of going on the premises with permission 
and later failing to leave when directed.

But by judicial interpretation “ entry” was held synony­
mous with “ remaining” and, in effect, also with “ trespass” . 
Here a legislative casus omissus was corrected by the court. 
But as Mr. Justice Brandeis observed in United States v. 
Weitzel, supra, at 543, a casus omissus while not unusual, 
and often undiscovered until much time has elapsed, does 
not justify enlargement of a criminal statute.



14

Moreover, that the warrant specified that petitioners had 
refused to leave after being ordered to do so, does not 
correct the unfairness inherent in the statute’s failure spe­
cifically to define a refusal to leave as an offense. As this 
Court said in Lametta v. New Jersey, supra:

It is the statute, not the accusation under it, that pre­
scribes the rule to govern conduct and warns against 
transgression. See Stromberg v. California, 283 U. S. 
359, 368; Lovell v. Griffin, 303 U. S. 444.

Petitioners do not contend for an unreasonable degree 
of specificity in legislative drafting. Some state trespass 
laws have recognized as distinct prohibited acts the act 
of going upon property after being forbidden and the act 
of remaining when directed to leave.2 South Carolina 
passed a statute punishing those who remain after being 
directed to leave within a month of petitioners’ conviction, 
Section 16-388, Code of Laws of South Carolina. See supra, 
p. 10. Converting, by judicial construction, the common 
English word “ entry” into a word of art meaning “ remain” 
or “ trespass” has transformed the statute from one which

2 See for example the following state statutes which do effectively 
differentiate between “ entry” after being forbidden and “ remain­
ing” after being forbidden. The wordings of the statutes vary but 
all of them effectively distinguish the situation where a person has 
gone on property after being forbidden to do so, and the situation 
where a person is already on property and refuses to depart after 
being directed to do so, and provide separately for both situations: 
Code of Ala., Title 14, §426; Compiled Laws of Alaska Ann. 1958, 
Cum. Supp. Yol. I ll , §65-5-112; Arkansas Code, §71,1803; Gen. 
Stat. of Conn. (1958 Rev.), §53-103; D. C. Code §22-3102 (Supp. 
VII, 1956); Florida Code, §821.01; Rev. Code of Hawaii, §312-1; 
Illinois Code, §38-565; Indiana Code, §10-4506; Mass. Code Ann. 
C. 266, §120; Michigan Statutes Ann. 1954, Vol. 25, §28.820(1); 
Minnesota Statutes Ann. 1947, Vol. 40, §621.57; Mississippi Code 
§2411; Nevada Code, §207.200; Ohio Code, §2909.21; Oregon Code, 
§164.460; Code of Virginia, 1960 Replacement Volume, §18.1-173; 
Wyoming Code, §6-226.



15

fairly warns against one act into a law widen fails to 
apprise those subject to it “ in language that the common 
world will understand, of what the law intends to do if a 
certain line is passed” (McBoyle v. United States, 283 
II. S. 27). Nor does common law usage of the word “ entry” 
support the proposition that it is synonymous with “ tres­
pass” or “ remaining”. While “ entry” in the sense of going 
on and taking possession of land is familiar (Ballantine, 
“Law Dictionary” (2d Ed. 1948), 436; “ Black’s Law Dic­
tionary” (4th Ed. 1951, 625), its use to mean remaining on 
land and refusing to leave it when ordered off is novel.

Judicial construction often has cured criminal statutes 
of the vice of vagueness, but this has been construction 
which confines, not expands, statutory language. Compare 
Chaplinsky v. New Hampshire, 315 U. S. 568, with Herndon 
v. Loivry, 301U. S. 242.

At the time of their arrest, petitioners were engaged 
in the exercise of free expression by verbal and nonverbal 
requests for nondiscriminatory lunch counter service, im­
plicit in their continued remaining at the lunch counter 
when refused service.

If in the circumstances of this case free speech is to 
be curtailed, the least one has a right to expect is reasonable 
notice in the statute under which convictions are obtained. 
Winters v. New York, 333 U. S. 507. To uphold petitioners’ 
conviction by novel and enlarged construction of this statute 
is to violate the principle that when freedom of expression 
is involved conduct must be proscribed within a statute 
“narrowly drawm to define and punish specific conduct as 
constituting a clear and present danger to a substantial 
interest of the State” , Cantwell v. Connecticut, 310 U. S. 
296, 307, 308; Garner v. Louisiana, 368 U. S. 157, 185 
(Mr. Justice Harlan concurring). If the Supreme Court of 
South Carolina can affirm the convictions of these peti­



16

tioners by such a construction it has exacted obedience 
to a rule or standard that is so ambiguous and fluid as to 
be no rule or standard at all. Champlin Rev. Co. v. Cor­
poration Com. of Oklahoma, 286 U. S. 210. But when free 
expression is involved, the standard of precision is greater; 
the scope of construction must, consequently be less. If 
this is the case when a State court limits a statute it must 
a fortiori be the case when a State court expands the mean­
ing of the plain language of a statute. Winters v. New 
York, 333 U. S. 507, 512.

As construed and applied, the law in question no longer 
informs one what is forbidden in fair terms, and no longer 
warns against transgression. This failure offends the 
standard of fairness expressed by the rule against ex­
pansive construction of criminal laws which is embodied 
in the due process clause of the Fourteenth Amendment.

II.
The State of South Carolina Has Enforced Racial 

Discrimination Contrary to the Equal Protection and 
Due Process Clauses of the Fourteenth Amendment to 
the Constitution of the United States.

Petitioners were not served in Kress’s because they were 
Negroes and the custom of the City of Charleston is that 
Negroes may not be served at counters which also cater 
to whites (R. 14, 17). No other variety store lunch counter 
in Charleston would have served petitioners either (R. 14). 
They sat at the counter, however, because they thought the 
management “might” “ change their mind and serve” them 
(R. 50). If they had been served when they sought service, 
they would have been out of the store and away from the 
counter shortly after having entered it, in the morning, 
well before 4:45 P.M. (R. 17).



17

As things were, they remained seated at the counter 
nntil late afternoon when there was a “bomb scare.” Pur­
suant to police and fire department policy (R. 27, 41), the 
store manager asked the petitioners to leave the store, 
although neither police, fire, nor store officials informed 
petitioners that there was a “bomb scare” (R. 36, 48). It 
may be noted that at the same time the police themselves 
directed other patrons to depart (R. 37). Upon petitioners’ 
failure to leave, police arrested them for trespassing.

In the context of the entire episode petitioners were, 
therefore, arrested for two reasons—indirectly to enforce 
the custom of racial segregation and because of the “ bomb 
scare”—as the chief of police acknowledged upon cross 
examination:

Q. Now, Chief, when you asked these twenty-four 
young people to leave Kress’s Store, weren’t you just 
helping the manager of Kress to maintain the policy 
[of not serving Negroes at the lunch counter] which 
the store already followed? A. I would say indirectly, 
yes. Paramount and more so for the safety of every­
one leaving the building (R. 33).

Failure to depart from the premises because of the “bomb 
scare,” stems from Charleston’s and Kress’s segregation 
policy. Petitioners never would have been in the store at 
the time of the bomb threat if they had been served on the 
same basis as white persons. Moreover, to the exent that 
petitioners have an immunity from arrest to enforce racial 
segregation—discussed in detail below—they had a right to 
persist in demanding service. If some secret, nonracial 
reason existed whereby anyone without regard to race 
might have been required to leave, they hardly could have 
been expected to conform to the demand without knowing 
that suddenly a nonracial standard was being applied. The 
case is as Boynton v. Virginia, 364 U. S. 454, would have



18

been, if unknown to Boynton he were asked to leave the 
premises because of a “bomb scare.” If knowing that the 
management is disabled from enforcing a demand to depart 
based upon race, by police and judicial action, one persists 
in demanding service, it hardly can be made criminal that 
the manager has a secret nonracial reason which subse­
quently he discloses.

Indeed, petitioners originally were charged with two 
offenses, (1) trespass and (2) interfering with a police 
officer, in violation of a Charleston ordinance. The convic­
tion on the second charge was reversed by the State Su­
preme Court on the ground that petitioners’ conduct was 
passive, not active, and did not constitute “ interference” , 
infra, p. 27a. The refusal to obey the police with respect 
to the bomb situation, therefore, no longer appears to be 
in the case. To the extent that the management ordered 
petitioners to leave because of the “bomb” situation, it was 
carrying out police and fire department policy, not asserting 
a “property” right.

The subsisting offense, trespass, is one against the State’s 
interest in enforcing Kress’s “property right,” not in police 
regulation of a dangerous situation involving a “bomb 
scare.”

The Supreme Court of South Carolina recognized the 
issue in this case to be whether police and judicial enforce­
ment of Kress’s racial segregation policy violated the equal 
protection clause of the Fourteenth Amendment.

The appellants assert that the court erred in re­
fusing to hold that their arrests and convictions were 
in furtherance of a custom of racial segregation in 
violation of the Fourteenth Amendment to the United 
States Constitution. It is also asserted that enforce­
ment of segregation in this case was by State action 
within the meaning of such Fourteenth Amendment 
(infra, p. 20a).



19

It answered this question contrary to petitioners’ posi­
tion by relying upon cases involving similar issues, some 
of which are now pending before this Court, e.g., Randolph 
v. Virginia, 202 Va. 661, 119 S. E. 2d 817 (No. 248, October 
Term, 1961); City of Greenville v. Peterson, 122 S. E. 2d 
826 (No. 750, October Term, 1961); State v. Avent, 253 
N. C. 580, 118 S. E. 2d 47 (No. 85, October Term, 1961).

But the decision below flies in the face of principles 
declared by this Court, Where there is state action by the 
police, Screws v. United States, 325 U. S. 91; Monroe v. 
Pape, 365 U. S. 167; prosecutors, Napue v. Illinois, 360 
IT. S. 264, and judiciary, Shelley v. Kraemer, 334 U. S. 1, 
14-18; Boynton v. Virginia, 364 U. S. 454, racial discrimina­
tion supported by state authority violates the Fourteenth 
Amendment. Civil Rights Cases, 109 U. S. 3, 17.

It is asserted, however, that the state is not enforcing 
racial discrimination, but is implementing a property right. 
But to the extent that management was asserting a “prop­
erty” right to enforce racial segregation according to the 
custom of the City of Charleston, it becomes pertinent to 
inquire just what that property right is.

The mere fact that “property” is involved does not 
settle the matter, Shelley v. Kraemer, 334 U. S. 1, 22. 
“ Dominion over property springing from ownership is not 
absolute and unqualified.” Buchanan v. War ley, 245 U. S. 
60, 74; United States v. Willow River Power Co., 324 U. S. 
499, 510; Marsh v. Alabama, 326 U. S. 501, 506; cf. 
Munn v. Illinois, 94 U. S. 113; Republic Aviation Corp. 
v. N. L. R. B., 324 IT. S. 793, 796, 802.

Kress’s is a commercial variety store open to the public 
generally for the transaction of business, including the sale 
of food and beverages at is lunch counter. It does not seek 
to keep everyone, or Negroes, or these petitioners from



20

coming upon the premises. The white public is invited to 
use all the facilities of the store and Negroes are invited 
to use all these facilities except the lunch counter. The 
management does not seek to exclude petitioners because 
of an arbitrary caprice, but rather, follows the community 
custom of Charleston which is, in turn, supported and 
nourished by law.

The portion of the store from which petitioners are 
excluded is not set aside for private or non-public use as 
an office reserved for the management or lounge or private 
restroom for employees. Petitioners did not seek to use the 
lunch counter for any function inappropriate to its normal 
use. They merely sought lunch counter service. Therefore, 
it appears that the property interest which the State pro­
tects here, by arrest, prosecution, and criminal conviction, 
is the claimed right to open the premises to the public 
generally, including Negroes, for business purposes, in­
cluding the sale of food and beverages, while racially dis­
criminating against Negroes, as such, at one integral part 
of the facilities. While this may, indeed, be a property 
interest, the question before this Court is whether the 
State may enforce it without violating the Pourteenth 
Amendment. This property interest certainly may be taken 
away by the State without violating the Fourteenth Amend­
ment. Western Turf Asso. v. Greenberg, 204 U. S. 359; 
Railway Mail Assn. 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. 419, 18 N. E. 245 (1888); Annotation 49 
A. L. R. 505; cf. District of Columbia v. John R. Thompson 
Co., 346 U. S. 100.

Many states make it a crime to engage in the racially 
discriminatory use of private property which South Caro­
lina enforces here. For the latest collection of such statutes, 
see Konvitz, A Century of Civil Rights (1961), passim. 
Indeed, Kress s has sought to achieve in this case some­



21

thing which the State itself could not permit it to do on 
state property leased to it for business use. Burton v. 
Wilmington Parking Authority, 365 U. S. 715, or require 
or authorize it to do by positive legislation. See Mr. Justice 
Stewart’s concurring opinion in Burton, supra. Although 
it does not necessarily follow from the fact that some states 
constitutionally may make racial discrimination on private 
property criminal, that other states may not enforce racial 
discrimination, it does become evident that Kress’s prop­
erty interest is hardly inalienable or absolute.

Basic to the disposition of this case is that Kress is a 
public establishment open to serve the public as a part 
of the public life in the community. See Garner v. Louisiana, 
368 U. S. 157, 176, Mr. Justice Douglas concurring. The 
case involves no genuine claim that Kress’s right “private” 
use of its property was interfered with by petitioners. To 
uphold petitioners’ claims here affects only slightly the 
entire range of what are called private property rights. 
For if Kress is disabled by the Fourteenth Amendment 
from enforcing by state action racial bias at its public 
lunch counter, homeowners are hardly disabled from en­
forcing their private rights even to implement racial 
prejudices. There is a constitutional right of privacy pro­
tected by the due process clause of the Fourteenth Amend­
ment. Mapp v. Ohio, 367 U. S. 643, 6 L. ed. 2d 1081, 1080, 
1103, 1104; see also Poe v. Ullnian, 367 U. S. 497, 6 L. ed. 
2d 989, 1006, 1022-1026 (dissenting opinions). This Court 
has recognized the relationship between right of privacy 
and property interests. Thornhill v. Alabama, 310 U. S. 
88, 105-106; Breard v. Alexandria, 341 U. S. 622, 626, 638, 
644. Only a very absolutist view of the property right 
to determine who may come or stay on one’s property on 
racial grounds would require that a unitary principle apply 
to the whole range of property uses, public connections, 
dedications, and privacy interests which may be at stake.



22

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

Where a right of private property is asserted by a 
proprietor so narrowly as to claim state intervention only 
in barring Negroes from a single portion of a public estab­
lishment, and that restricted assertion of right collides with 
the great immunities of the Fourteenth Amendment, peti­
tioners respectfully submit that the property right is no 
right at all.

Moreover, the assertion of racial prejudice here is not 
“private” at all. The segregation here enforced is that 
demanded by custom of the City of Charleston. While 
“ custom” is referred to in the Civil Rights Cases as one 
of the forms of state authority within the prohibitions of 
the Fourteenth Amendment, 109 U. S. 3, 17 (see also Mr. 
Justice Douglas concurring in Garner v. Louisiana, 368 
U. S. 157, 179, 181), Charleston’s custom exists in a context 
of massive state support of racial segregation.3

3 See S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 
repealing S. C. Const. Art. 11, §5 (1895) (which required legis­
lature to maintain free public schools). S. C. Code §§21-761 to 
779 (regular school attendance) repealed by A. & J. R. 1955 (49) 
85; §21-2 (appropriations cut off to any school from which 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 pen­
alty and/or imprisonment at hard labor up to 30 days; S. C. A. & 
J. R. 1956 No. 917 (closing park involved in desegregation su it);



23

Consequently, we have here state nurtured and state 
enforced racial segregation in a public institution concern­
ing which no property right may be asserted in the face 
of the Fourteenth Amendment’s prohibition of state en­
forced racial segregation. This state enforced segregation 
conflicts with Fourteenth Amendment principles which have 
been consistently asserted by this Court.

CONCLUSION

W herefore , for the foregoing reasons petitioners respect­
fully pray that the Petition for Writ of Certiorari be 
granted.

Respectfully submitted,

J ack  G reenberg 
Constance  B ak er  M otley 
J am es M. N abrit , III 
M ich ael  M eltsner

10 Columbus Circle 
New York 19, New York

M a t t h e w  J . P erry  
L incoln  C. J e n k in s , J r .

IIO714 Washington Street 
Columbia, South Carolina

J ohn  H. W righ ten  
R ussel B rown

Charleston, South Carolina

Attorneys for Petitioners

S. C. Code §§51-1, 2.1-2.4 (1957 Supp.) (providing for separate 
State Parks) §51-181 (separate recreational facilities in eities 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).



APPENDIX

I n  th e

CHARLESTON COUNTY COURT

C it y  of C harleston ,

—v.-
Respondent,

M it c h e l l , el al.,
Appellants.

Order of the Charleston County Court

This is an appeal from the Recorder’s Court of the 
City of Charleston, there, on April 19, 1960, the twenty- 
four (24) named defendants were tried and found guilty 
of violating Section 16-386 of the Code of Laws of South 
Carolina for 1952, and Section 33-39 of the Ordinances of 
the City of Charleston, 1952. The defendants were charged 
on two separate warrants, the first charging all of the 
defendants, and each of them, with committing a trespass 
upon the property of S. H. Kress & Company in the City of 
Charleston, and the second charging all of the defendants, 
and each of them, with resisting and interfering with the 
Chief of Police of the City of Charleston in the discharge 
of his official duties.

The record show’s that on April 1, 1960, at about 10:45 
A. M. the twenty-four (24) defendants, all of whom are 
young Negroes, entered the premises of S. H. Kress & 
Company in the City of Charleston and seated themselves 
at the lunch counter. Shortly after they occupied seats 
at the lunch counter, the counter was closed for business



2a

and the area was roped off. The defendants remained 
seated at the counter until about 4 :30 P. M., at which time 
Mr. Albert C. Watts, the manager of the Kress store, ap­
proached the group, told them who he was, and requested 
them to leave the store premises. He repeated his request, 
but the defendants remained seated. The evidence shows 
that the City Police had received an anonymous telephone 
call reporting that there was a bomb in the store set to go 
off at 4:45 P. M. This information was relayed to the 
Chief of Police, who was stationed in the Kress store at 
the time, and he in turn reported this information to Mr. 
Watts, the store manager. Mr. Watts determined at that 
time to close the store and clear the building of all em­
ployees and customers. It was then that he approached 
the defendants and asked them twice to leave the premises. 
Immediately thereafter, the Chief of Police spoke to the 
defendants, identified himself, and ordered them to leave 
the store. The defendants remained seated and the Chief 
repeated his order. When the defendants refused to leave, 
they were placed under arrest.

Upon trial and conviction in Recorder’s Court, each of 
the defendants was sentenced to pay a fine of Fifty ($50.00) 
Dollars or serve a term of fifteen (15) days in jail on each 
of the charges, the sentences to run concurrently. All of the 
defendants have appealed the rulings and the judgments 
of the Recorder of the City of Charleston.

Before pleading to the charges, the defendants challenged 
the sufficiency of the two separate warrants and moved for 
dismissal of both warrants on the ground that they were 
vague, uncertain and indefinite and did not plainly set 
forth the offenses charged. The defendants’ motion for 
dismissal were denied by the Recorder, and properly so 
in the opinion of this Court.

Order of the Charleston County Court



3a

Our State Constitution, in Article 1, Section 18, affords 
to a person charged with a criminal offense the right to 
be fully informed of the nature and cause of the accusation. 
An inspection of the warrants in this case reveals that 
the offenses charged are stated in clear and definite lan­
guage which fully and adequately informed the defendants 
of the nature and cause of the charges.

Before entering pleas at trial, the defendants moved to 
require the City of Charleston, under Section 15-902 of 
the State Code, to elect which of the charges preferred 
against them the City would proceed to trial on. It was 
the defendants’ contention that the offenses charged actu­
ally arose out of the same facts and circumstances and 
were, in fact, not separate acts but a single act on the 
part of the defendants. The Recorder overruled this 
motion.

Section 15-902 provides that “whenever a person be ac­
cused of committing an act which is susceptible of being 
designated as several different offenses, the magistrate or 
the municipal court * * * shall be required to elect which 
charge to prefer. * * * ” (Emphasis added.)

In the light of the evidence, it is the opinion of this court 
that the motion to elect was properly overruled by the 
trial judge. The evidence clearly shows that the defendants 
were first requested by the manager of Kress to leave the 
store premises. They refused this request, and thereafter, 
they refused an order of the Chief of Police. In fact and 
in law, these were two separate and distince acts on the 
part of the defendants. The first act was directed against 
the private property rights of S. H. Kress & Company, 
while the second act, entirely different in nature, was di­
rected against the Sovereign in the person of the Chief 
of Police of the City of Charleston. The acts did not

Order of the Charleston County Court



4a

happen at the same time, and it was entirely possible for 
the defendants to be guilty of one offense and innocent 
of the other.

Section 15-902 contemplates a single “ act” . Here, we have 
two separate and independent refusals to leave the store 
premises. The act of trespass was final and complete be­
fore there occurred the entirely independent act of inter­
ference with a police officer in the discharge of his duty.

At the close of the case for the prosecution, and again 
after the close of all evidence, the defendants interposed 
motions for dismissal of the charge. Each motion was 
overruled. After judgment and sentencing, the defendants 
moved for arrest of judgment or in the alternative, for a 
new trial on basically the same grounds which were cited 
in support of their earlier motions for dismissal. The 
Recorder overruled such motions.

In their Notice of Intention to Appeal as well as in their 
brief, the defendants in essence contend that their arrest 
and subsequent conviction constitutes State action to en­
force racial segregation, in violation of their rights under 
the due process clause and under the equal protection of the 
laws clause of the Fourteenth Amendment to the Federal 
Constitution. They contend that the evidence shows that 
in arresting the defendants the police officers of the City 
of Charleston were aiding and assisting the management 
of S. H. Kress & Company in refusing lunch counter ser­
vice to the defendants solely on account of their race or 
color. They further contend that S. H. Kress & Company 
is “ invested with the public interest” and is, therefore, 
required to provide services “ in the manner of State op­
erated facilities of a like nature” , and may not segregate 
or exclude persons on the basis of race or color. There 
is no merit in the defendants’ contentions.

Order of the Charleston County Court



5a

S. H. Kress & Company owns and operates a store on 
King Street in the City of Charleston. It is common 
knowledge that it is a five and ten cent store engaged in 
the business of offering for sale various articles of mer­
chandise. In the conduct of its business, Kress also owns 
and operates a food and lunch counter in a part of the 
store premises. S. H. Kress & Company, as other retail 
stores, opens its doors to the general public and invites 
the public in to do business. According to the testimony 
of the store manager, it is the policy of Kress to operate 
its business in accordance with prevailing local custom, 
and following such custom, it does not serve Negroes at 
its lunch counter.

Although a member of the general public has an in­
vitation or implied license to enter a retail store to do 
business, the proprietor or manager of such store has 
the right to revoke this license at any time. An invitation 
to the public to come into a store to buy does not auto­
matically impose upon the store an obligation to sell. A 
private business always has the right to select its cus­
tomers and to make such selection on any basis it chooses. 
A private business is under no compulsion whatsoever to 
serve everyone who enters and applies for service.

Section 16-386, under which the defendants were found 
guilty, reads: “ Every entry upon the lands of another * * * 
after notice from the owner or tenant prohibiting such 
entry, shall be a misdemeanor. * * * ” The obvious and 
sole purpose of this statute is to protect the property 
owner from trespassers on his property. The statute is 
directed against all trespassers, regardless of race or color.

“ The right of property is a fundamental, natural, in­
herent, and inalienable right. It is not ex gratia from the 
legislature, but ex debite from the Constitution. In fact,

Order of the Charleston County Court



6a

it does not owe its origin to the Constitutions which pro­
tect it, for it existed before them. It is sometimes char­
acterized judicially as a sacred right, the protection of 
which is one of the most important objects of government. 
The right of property is very broad and embraces prac­
tically all incidents which property may manifest.” 11 
Am. Jur., Constitutional Law, Section 335.

The defendants in this case entered the property of S. H. 
Kress & Company presumably in the role of customers. 
They seated themselves at the lunch counter for some five 
hours and refused the store manager’s request that they 
leave. When they refused this request they became under 
the law trespassers. There is absolutely no merit in the 
defendants’ contention that their arrest by the City Police 
constituted State action.

Recently, the Supreme Court of our sister State of North 
Carolina had before it a case quite similar to the instant 
case. State v. Avent et al., 253 N. C. 580, 118 S. E. (2d) 
47. There, as here, the Court was considering a trespass 
case, or “ sit-in demonstration” as such incidents have been 
termed, which took place in a S. II. Kress & Company store 
in Durham, North Carolina. The following quotation from 
that case is appropriate to the case at hand.

“Private rights and privileges in a peaceful society liv­
ing under a constitutional form of government like ours are 
inconceivable without State machinery by which they are 
enforced. Courts must act when parties apply to them— 
even refusal to act is a positive declaration of law—and, 
hence, there is a fundamental inconsistency in speaking of 
the rights of an individual who cannot have judicial recog­
nition of his rights. All the State did * * * was to give or 
create a neutral legal framework in which S. H. Kress & 
Company could protect its private property from tres­

Order of the Charleston County Court



7a

passers. * * * There is a recognizable difference between 
State action that protects the plain legal right of a person 
to prevent trespassers from going upon his land after 
being forbidden, or remaining upon his land after a demand 
that they leave, even though it enforces the clear right of 
racial discrimination of the owner, and State action enforc­
ing covenants restricting the use or occupancy of real 
property to persons of the Caucasian race. The fact that 
the State provides a system of courts so that S. H. Kress 
& Company can enforce its legal rights against trespassers 
upon its property * * * and the acts of its judicial officers 
in their official capacities, cannot fairly be said to be State 
action enforcing racial segregation in violation of the 14th 
Amendment to the Federal Constitution. Such judicial 
process violates no rights of the defendants. * * * To rule 
as contended by defendants would mean that S. H. Kress 
& Company could enforce its rights against White tres­
passers alone, but not against Negro trespassers. * * * 
Surely, that would not be an impartial administration of 
the law, for it would be a denial to the White race of the 
equal protection of the law. If a landowner or one in pos­
session of land cannot protect his natural, inherent and 
constitutional right to have his land free from unlawful 
invasion by * * * trespassers in a case like this by judicial 
process as here, because it is State action, then he has no 
other alternative but to eject them, with a gentle hand if 
he can, with a strong hand if he must. White people also 
have constitutional rights as well as Negroes, which must 
be protected, if our constitutional form of government is 
not to vanish from the face of the earth.”

The customs of the people of a State do not constitute 
State action within the prohibition of the Fourteenth 
Amendment. Williams v. Howard Johnson’s Restaurant, 
268 F. (2d) 845.

Order of the Charleston County Court



8a

In Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 
3 A. L. R. (2d) 441, the Court said: “ Since the decision 
of this Court in the Civil Rights cases, 109 U. S. 3, 27 L. Ed. 
835, 3 S. Ct. 18 (1883), the principle has become firmly 
embedded in our constitutional law that the action inhibited 
by the first section of the Fourteenth Amendment is only 
such action as may fairly be said to be that of the State. 
That Amendment erects no shield against merely private 
conduct, however discriminatory or wrongful.”

None of the cases cited in the defendants’ brief are ap­
plicable to the situation before this Court for the reasons 
already stated.

Although the defendants make no mention of it in their 
brief, they contend in their grounds for appeal that Sec­
tion 16-386 is unconstitutional in that it does not require 
that a person making the demand to leave present docu­
ments or other evidence of possessory right sufficient to 
apprise the defendants of the validity of the demand. This 
contention is not tenable. The evidence shows very clearly 
that the manager of S. H. Kress & Company identified 
himself to the defendants before he requested them to leave 
the store. No more than that is required under this statute.

All of the defendants’ grounds for appeal have been con­
sidered, and all are overruled. The defendants have not 
shown that any of their rights guaranteed by the Four­
teenth Amendment to the Federal Constitution have been 
violated.

The judgments of the Recorder’s Court of the City of 
Charleston are affirmed.

/ s /  T h o s . P. B ussey , 
Judge, Ninth Judicial Circuit.

Charleston, South Carolina,
June 26,1961.

Order of the Charleston County Court



9a

Opinion of Supreme Court of South Carolina

THE STATE OF SOUTH CAROLINA
I n  t h e  S u prem e  C ourt

C it y  oe Charleston ,

— Y .—

Respondent,

C h risto ph er  M it c h e l l , J o h n  B ailey , J oseph  G erideau , 
J am es G ilbert  B l a k e , A ndrew  B r o w n , A l v in  D eleord 
L atten , F red S m a ll , Cornelius F ludd , C harles  B u tler , 
F rancis J o h n son , D avid P au l  R ichardson , J oseph  
J ones, A lfred H a m il to n , H arvey G a n t t , A lle n  C oley , 
K e n n e t h  A ndrew  G erm an , Carolyn  J e n k in s , A rth u ree  
S in g leton , J en n iese  B l a k e , D elores B r o w n , A n n ette  
G r a h a m , Cecile  G ordon, V ern a  J ean  M cN eill  and  
M in erva  B r o w n ,

Appellants.

Appeal From Charleston County 
T h o m as  P. B ussey , Judge

Filed December 13, 1961
R eversed in  P a r t ; 
A ffirm ed  in  P art

Moss, A. J .:

The twenty-four appellants, all of whom are Negro high 
school students, were arrested on April 1,1960, and charged 
with the violation of Section 16-386, as amended, of the



10a

1952 Code of Laws of South Carolina, and Section 33-39, 
1952 Code of the City of Charleston.

The appellants were tried before the City Recorder in 
the police court of the City of Charleston, on April 19, 1960. 
Each of the appellants was found guilty of both charges 
and sentenced to pay a fine of Fifty & 00/100 ($50.00) Dol­
lars or to imprisonment for fifteen days on each offense, 
the sentences in each case to run concurrently. The con­
viction of each of the appellants was sustained by the 
Circuit Court. The appellants gave timely notice of in­
tention to appeal to this Court.

The questions involved in this appeal may be summarized 
as follows: (1) Did the court err in refusing to hold that 
the warrants charging the appellants with the violation of 
Section 16-386, as amended of the 1952 Code of Laws of 
South Carolina, and of Section 33-39, 1952 Code of the 
City of Charleston, were vague, indefinite and uncertain 
and do not plainly and substantially set forth the offenses 
charged. (2) Did the testimony fail to establish the corpus 
delicti or prove a prima facie case. (3) Did the court err 
in refusing to hold that under the facts of these cases, the 
arrests and convictions of the appellants were in further­
ance of a custom of racial segregation in violation of the 
Fourteenth Amendment to the Constitution of the United 
States. Under this question the appellants assert that the 
enforcement of segregation was by State action and that 
they were unwarrantedly penalized for exercising their free­
dom of expression.

The first question for determination is whether the ap­
pellants’ motion to quash and dismiss the warrants should 
have been sustained upon the ground that the charge con­
tained in each of said warrants was too vague, indefinite 
and uncertain, in that they do not substantially apprise

Opinion of Supreme Court of South Carolina



11a

them of the offenses charged. The appellants were tried 
on warrants which were based on an affidavit of the Chief 
of Pdice of the City of Charleston. In the first affidavit he 
avers that the appellants, on April 1, 1960, “did unlawfully, 
knowingly, and willfully commit a trespass, in that they 
did refuse to leave the premises and property of S. H. Kress 
& Company, having been requested and ordered to leave, 
vacate and remove themselves from said premises, all in 
violation of Title 16, Section 386, of the Code of Laws of 
South Carolina for 1952, as amended, and against the peace 
and dignity of the said State.” The second warrant charged 
that the appellants, on April 1, 1960, “did unlawfully, 
knowingly, and willfully hinder, resist, oppose and inter­
fere with an employee of the City of Charleston, namely, 
William F. Kelly, Chief of Police, in the discharge of his 
official duties, in that they did refuse to leave the premises 
and property of S. H. Kress & Company after being ordered 
and requested to do so by William F. Kelly, Chief of Police, 
all in violation of Section 33-39 of the Code of the City 
of Charleston, 1952, and against the peace and dignity of 
said State.”

The pertinent portion of Section 16-386, as amended, of 
the 1952 Code of Laws of South Carolina, is as follows:

“ 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, 
a proof of the posting shall be deemed and taken as 
notice conclusive against the person making entry as 
aforesaid for the purpose of trespassing.”

Opinion of Supreme Court of South Carolina



12a

Section 33-39, of the 1952 Code of the City of Charleston, 
provides:

“ It shall be unlawful for any person to assault, resist, 
hinder, oppose, molest or interfere with any em­
ployee of the City or of any department or board there­
of, or any officer or employee of the police department 
of the City, in discharge of official duties, under penalty 
of fine of not less than twenty dollars or not more 
than one hundred dollars or imprisonment not exceed­
ing 30 days.”

Article 1, Section 18, of the 1895 Constitution of this 
State, provides that in all criminal prosecutions the ac­
cused shall have the right “to be fully informed of the 
nature and cause of the accusation.” This Constitutional 
right is set forth with reference to criminal prosecutions in 
a Magistrate’s Court in Section 43-111 of the 1952 Code of 
Laws of South Carolina, as follows: “All proceedings be­
fore magistrates in criminal cases shall be commenced on 
information under oath, plainly and substantially setting 
forth the offense charged, upon which, and only which, shall 
a warrant of arrest issue.” Section 43-112, of the 1952 Code, 
provides that the information may be amended at any 
time before trial. Proceedings before a magistrate are sum­
mary in nature. Section 43-113 of the 1952 Code of Laws. 
We should point out that Section 15-901 of the 1952 Code 
of Laws gives to the mayor or intendant of the cities and 
towns of this State all the powers and authority of magis­
trates in criminal cases for offenses committed within the 
corporate limits and within the police jurisdiction of the re­
spective cities and towns, as is contained in Section 43-111 
of the 1952 Code. Section 15-1561 of the Code gives to 
the recorder of the police court of the City of Charleston 
all the powers, duties and jurisdiction of a magistrate.

Opinion of Supreme Court of South Carolina



13a

In the case of State v. Randolph, et al., 239 S. C. 79, 121 
S. E. (2d) 349, which prosecution originated in a Magis­
trate’s Court, we summarized the rule concerning the right 
of an accused to be fully informed of the offense charged 
against him. We said:

“Proceedings before a magistrate are summary in 
nature. Section 43-113 of the 1952 Code. His jurisdic­
tion to try criminal cases is confined to minor offenses. 
Many of our magistrates are without legal training. 
In the preparation of warrants they are not required 
to conform to the technical precision required in indict­
ments. Duffie v. Edwards, 185 S. C. 91, 193 S. E. 211. 
But it does not follow that the accused may be denied 
those fundamental rights essential to a fair trial, 
among which is the right to be informed of the nature 
of the offense charged against him. In McConnell v. 
Kennedy, 29 S. C. 180, 7 S. E. 76, 80, the Court stated 
that the manifest object of the statute now forming 
Section 43-111 of the 1952 Code was ‘to require that 
the offense with which a party was charged should be 
so set forth, plainly and substantially, as would enable 
the party accused to understand the nature of the of­
fense with which he was charged, so that he might 
be prepared to meet the charge at the proper time.’ In 
Town of Ilonea Path v. Wright, 194 S. C. 461, 9 S. E. 
(2d) 924, 927, the Court said: ‘Without doubt, the ad­
ministration of the law, and the rights of persons 
charged with crime can best be served by a due ob­
servance of statutory requirements. It is the con­
stitutional right of a person charged with a criminal 
offense to be fully informed of the nature and cause 
of the accusation. Article 1, Section 18 of the Constitu­

Opinion of Supreme Court of South Carolina



14a

tion.’ In Town of Mayesville v. Clamp, 149 S. C. 346,147 
S. E. 455, 457, Justice Blease, later Chief Justice, stated 
in a concurring opinion: ‘While an accused may be ar­
rested on a warrant that does not fully inform him of 
the nature and cause of the accusation, he may, when 
he is brought to trial, demand the information he is en­
titled to have under the provisions of Section 18 of 
Article 1.’ ”

In the recent case of City of Greenville v. Peterson, et al.,
— — S. C .------ , ------ S. E. (2d) ------- , (filed November 10,
1961), the appellants there were arrested, charged and con­
victed of trespass, in violation of Section 16-388, as 
amended, of the 1952 Code of Laws. They contended in 
this Court that the warrant should have been dismissed 
upon the ground that the charge contained therein was 
too indefinite and uncertain as to apprise them of the 
nature and cause of the accusation against them. In the 
Peterson case the appellants relied upon the authority of 
State v. Randolph, supra, as they do here, where this Court 
held that it was error to refuse a motion to make the charge 
more definite and certain in a warrant charging a breach 
of the peace. We pointed out in the Randolph case that a 
breach of the peace embraces a variety of conduct and the 
appellants there were entitled to be given such information 
as would enable them to understand the nature of the of­
fense. As was said in the Peterson case “ This is not true 
in the instant case where the charges wrere definite, clear 
and unambiguous; further no motion was made to re­
quire the prosecution to make the charge more definite and 
certain. There is no merit in this contention.” The wording 
of the warrants here was such as to apprise the appellants 
of the offenses with which they were charged. They were

Opinion of Supreme Court of South Carolina



15a

fully informed of the nature and the cause of the accusation 
against them in accordance with Article 1, Section 18 of the 
1895 Constitution of this State, and Section 43-111 of the 
1952 Code of Laws. The first warrant charges that on a day 
certain the appellants committed a trespass in refusing to 
leave the premises and property of S. II. Kress & Com­
pany, having been requested and ordered to vacate and re­
move themselves from said premises. This warrant then 
charged such to be a violation of a specific section of the 
Code. The second warrant heretofore referred to, likewise 
fully informed the appellants of the nature and cause of 
the accusation against them. The warrants against the ap­
pellants were not vague, indefinite and uncertain. This ex­
ception of the appellants is overruled.

S. H. Kress & Company is a private corporation, owning 
and operating a variety store on King Street in the City of 
Charleston, South Carolina. Located in said store is a 
food and lunch counter owned and operated by this private 
corporation. The record shows that on April 1, 1960, that 
the appellants entered the premises of S. H. Kress & Com­
pany at about 10:45 A. M. and seated themselves at the 
lunch counter. Shortly after they occupied seats at the 
lunch counter, such was closed for business. The appellants 
remained seated at the lunch counter until about 4 :30 P. M. 
at which time the manager of the store approached the 
group, told them who he was, and requested them to leave 
the store premises. The request of the manager was ignored 
and he repeated the request a second time, but the ap­
pellants remained seated. Immediately following the two 
requests of the manager for the appellants to leave the 
premises of S. H. Kress & Company, William P. Kelly, 
Chief of the Charleston Police Department, ordered the ap­
pellants to leave the building. Upon their refusal to leave

Opinion of Supreme Court of South Carolina



16a

they were placed under arrest. The evidence in the record 
discloses that the city police department had received in­
formation that a bomb was to be exploded in the Kress 
building. It was after this report was received by the 
Chief of Police, and such was communicated to the manager 
of the store, that not only the manager but the Chief of 
Police requested the appellants to leave and vacate the said 
store. The Chief of Police testified, “ I was urging them 
for their safety and all others concerned to leave as quickly 
as possible from the building, that it was urgent that they 
do so. I then repeated it and said pretty well the same 
words as I said the first time. Receiving no reply, and in 
fact no one even turned at that particular point, I asked 
for their spokesman in the group. No one signified that he 
or she was. I then told them, advised them, that as Chief 
of Police of the City of Charleston inasmuch as they have 
failed to comply with the request of Mr. Watts, Manager of 
Kress’s, it hereby became necessary for me to place them 
under arrest.”

The appellants assert that Section 16-386 of the 1952 
Code of Laws has no application since it only makes crimi­
nal an entry upon the premises of another “ after notice 
from the owner or tenant prohibiting such entry.”

The State of North Carolina has two trespass statutes 
which have been recently construed by the Supreme Court 
of that State in connection with “ sit-in demonstrations” . 
Section G S 14-134, of the General Statutes of North Caro­
lina, provides: “ If any person after forbidden to do so, 
shall go or enter upon the lands of another, without a license 
therefor, he shall be guilty of a misdemeanor, * * * ” Sec­
tion 14-126 of the General Statutes of said State, provides: 
“ No one shall make entry into any lands and tenements, 
or term for years, but in case where entry is given by law;

Opinion of Supreme Court of South Carolina



17a

and in such ease, not with strong hand nor with multitude 
of people, but only in a peaceable and easy manner; and if 
any man do the contrary, he shall be guilty of a misde­
meanor.”

In the case of State v. Clyburn, 247 N. C. 455, 101 S. E. 
(2d) 295, it appears that the appellants there, who were 
Negroes, entered the store of the Royal Ice Cream Company 
and proceeded to the portion of the store set apart for 
white patrons. They attempted to make a purchase of ice 
cream and the clerk refused to serve them. Upon their 
refusal to vacate the premises, they were charged with 
trespass, in that they did unlawfuly refuse to leave the 
premises reserved for members of the white race. Upon 
conviction and appeal to the Supreme Court of North Caro­
lina, the appellants contended that the trespass statutes 
above referred to had no application, since the statutes 
only make criminal an entry after being forbidden. The 
contention of the appellants was rejected and the Supreme 
Court of North Carolina, in disposing of the appellants’ 
contention, said:

“What is the meaning of the word ‘enter’ as used in 
the statute defining a criminal trespass! The word is 
used in G. S. section 14-126 as well as G. S. section 
14-134. One statute relates to an entry with force; the 
other to a peaceful entry. We have repeatedly held, in 
applying G. S. section 14-126, that one who remained 
after being directed to leave is guilty of a wrongful 
entry even though the original entrance was peaceful 
and authorized. State v. Goodson, supra; State v. 
Fleming, 194 N. C. 42, 138 S. E. 342; State v. Robbins, 
123 N. C. 730, 31 S. E. 669; State v. Webster, 121 N. C. 
586, 28 S. E. 254; State v. Gray, 109 N. C. 790, 14 S. E. 
55; State v. Talbot, 97 N. C. 494, 2 S. E. 148. The word

Opinion of Supreme Court of South Carolina



18a

‘entry’ as used in each of these statutes is synonymous 
with the word ‘trespass’. It means an occupancy or 
possession contrary to the wishes and in derogation of 
the rights of the person having actual or constructive 
possession. Any other interpretation of the word would 
improperly restrict clear legislative intent.”

In the case of State v. Avent, 253 N. C. 580,118 S. E. (2d) 
47, it appears that the appellants entered the store of S. H. 
Kress & Company, in the City of Durham, North Carolina, 
and seated themselves at the lunch counter. They were 
asked to leave and upon their refusal, they were arrested 
and charged with trespassing. In affirming the conviction 
of the appellants, the Court reaffirmed its holding in State 
v. Clyburn, supra, saying:

“ This statute is also color blind. Its purpose is ‘to 
protect possession only.’ State v. Baker, supra. We 
have repeatedly held in applying G. S. section 14-126 
that a person who remains on the land of another after 
being directed to leave is guilty of a wrongful entry 
even though the original entrance was peaceful. The 
word ‘entry’ as used in each of these statutes is synony­
mous with the word ‘trespass.’ ”

Our statute, Section 16-386, provides that every entry 
upon the lands of another, “ after notice from the owner or 
tenant prohibiting such entry,” has the same meaning as 
the North Carolina Statute, Section 14-134 of the General 
Statutes, which provides if any person after “ forbidden to 
do so shall go or enter upon the lands of another” shall be 
guilty of a misdemeanor. The logic and reasoning of the 
North Carolina Supreme Court, in construing the trespass 
statute of that State, convinces us that the same rule should

Opinion of Supreme Court of South Carolina



19a

be applied in the construction of the trespass statute here 
under consideration. We think the proper interpretation of 
our trespass statute requires a rejection of the position 
asserted by the appellants.

It has been soundly held that although an entry on land 
may be effected peaceably or even with the permission of 
the owner, the person making such entry may by reason 
of subsequent conduct while there be held to be guilty of 
a forcible trespass. 52 Am. Jur., Trespass, Section 84, at 
page 895. State v. Tyndall, 192 N. 0. 559, 135 S. E. 451, 
49 A. L. E. 596.

In the case of State v. Williams, 76 S. C. 135, 56 S. E. 783, 
this Court approved the following charge made by the trial 
J udge:

“I charge you further, as matter of law, that if an 
officer goes out to arrest another, and even the prosecu­
tor in the case goes along with him, as long as he 
behaves himself and takes no part in it, he is not a 
trespasser until he is ordered off of the man’s prem­
ises he goes on. If he is ordered off, then it is his duty 
to go, and if he does not go off, then the owner of the 
premises has the right to use whatever amount of 
force is necessary to put him off. He has no right to 
use any unnecessary force, however.”

In the case of Shramek v. Walker, 152 S. C. 88, 149 
S. E. 331, this Court quoted with approval from 2 E. C. L., 
559, the following,

“It is a well-settled principle that the occupant of 
any house, store, or other building, has the legal right 
to control it, and to admit whom he pleases to enter 
and remain there, and that he also has the right to 
expel from the room or building any one who abuses

Opinion of Supreme Court of South Carolina



20a

the privilege which has been thus given him. There­
fore, 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. The most common eases involving the right 
of an owner to eject one from his premises who en­
tered lawfully, are those where a person enters a hotel 
or business place or the conveyance of a common car­
rier and while therein forfeits his right to remain 
by his misconduct or failure to comply with the rea­
sonable rules and regulations. On the forfeiture of 
his right he becomes a common trespasser and may be 
forcibly ejected on failure to depart after a request to 
do so. See also 5 C. J., 745.” See also 9 A. L. R. 379; 
33 A. L. R. 421.

The appellants assert that the court erred in refusing 
to hold that their arrests and convictions were in further­
ance of a custom of racial segregation in violation of the 
Fourteenth Amendment to the United States Constitution. 
It is also asserted that enforcement of segregation in this 
case was by State action within the meaning of such Four­
teenth Amendment.

The appellants assert that since the store of S. H. Kress 
& Company was open to the public that they were there 
as business invitees and the refusal to serve them, because 
of their race, was a denial of their constitutional rights. 
The appellants do not attack Section 16-386 of our Code 
as being unconstitutional but contend that their rights were 
abridged in its application, in that they were invitees and 
were refused service because of their race. They assert

Opinion of Supreme Court of South Carolina



21a

that the use of judicial process here constitutes State action 
to enforce racial segregation, in violation of their rights 
under the due process and equal protection clause of the 
Fourteenth Amendment to the Federal Constitution, and 
that Section 16-386 of our Code is being unconstitutionally 
applied for the same purpose.

Section 16-386 of our Code is not a racial segregation 
one. It forbids any person, irrespective of his race or color, 
to make entry upon the lands of another after notice from 
the owner or tenant prohibiting such entry. There is no 
statute in this State which forbids discrimination by the 
owner of a restaurant of people on account of race or 
color. In the absence of a statute forbidding discrimina­
tion based on race or color, the rule is well established 
that an operator of a privately owned restaurant, privately 
operated in a privately owned building, has the right to 
select the clientele he will serve and to make such selection 
based on color or race if he so desires. This rule has been 
repeatedly recognized by the Appellate Courts of this 
country. State v. Clyburn, 247 N. C. 455, 101 S. E. (2d) 
295, and State v. Avent, 253 N. C. 580, 118 S. E. (2d) 47, 
and the cases therein cited. Randolph v. Commonwealth, 
202 Va. 661, 119 S. E. (2d) 817; City of Greenville v. Peter­
son, et al., supra. The holding in these cases is based upon 
the principle that the Fourteenth Amendment “ erects no 
shield against mere private conduct, however discrimina­
tory or wrongful” , Shelley v. Kraemer, 334 U. S. 1, 68 
S. Ct., 836, 92 L. Ed. 1161, 3 A. L. R. (2d) 441, and that in 
the absence of statute the operator of a privately owned 
business may accept some customers and reject others on 
purely personal grounds. In the case of Alpaugh v. Wolver- 
ton, 184 Va. 943, 36 S. E. (2d) 906, this principle was applied 
in the operation of a privately owned restaurant.

Opinion of Supreme Court of South Carolina



22a

In the ease of State v. Avent, 253 N. C. 580, 118 S. E. 
(2d) 47, the North Carolina Supreme Court held that Negro 
and white students who refused, in the presence of a 
police officer, to leave the lunch counter of S. H, Kress & 
Company’s privately owned variety store at the order of 
the manager wrnre guilty of wrongful entry and trespass, 
and the police officer had the duty to arrest them, and the 
arrest and judicial process against such students did not 
constitute State action to enforce racial segregation in 
violation of the Fourteenth Amendment to the Federal Con­
stitution. In disposing of the contention of the appellants 
in the Avent case, the North Carolina Supreme Court, in 
refusing to upset the convictions of the appellants on the 
ground that their arrest and trial for trespass constituted 
State action within the meaning of the Fourteenth Amend­
ment, said:

“ Private rights and privileges in a peaceful society 
living under a constitutional form of government like 
ours are inconceivable without State machinery by 
which they are enforced. Courts must act when parties 
apply to them—even refusal to act is a positive decla­
ration of law—, and, hence, there is a fundamental 
inconsistency in speaking of the rights of an individual 
who cannot have judicial recognition of his rights. All 
the State did in these cases was to give or create a 
neutral legal framework in which S. H. Kress and 
Company could protect its private property from tres­
passers upon it in violation of Gr. S. section 14-134 
and G-. S. section 14-126. There is a recognizable dif­
ference between State action that protects the plain 
legal right of a person to prevent trespassers from 
going upon his land after being forbidden, or remain­
ing upon his land after a demand that they leave, even

Opinion of Supreme Court of South Carolina



23a

though it enforces the clear legal right of racial dis­
crimination of the owner, and State action enforcing 
covenants restricting the use or occupancy of real 
property to persons of the Caucasian race. The fact 
that the State provides a system of courts so that 
S. H. Kress and Company can enforce its legal rights 
against trespassers upon its private property in viola­
tion of Gf. S. section 14-134 and Gf. S. section 14-126, 
and the acts of its judicial officers in their official ca­
pacities, cannot fairly be said to be State action en­
forcing racial segregation in violation of the 14th 
Amendment to the Federal Constitution. Such judicial 
process violates no rights of the defendants guaran­
teed to them by Article I, section 17, of the State 
Constitution. To rule as contended by defendants 
would mean that S. H. Kress and Company could en­
force its rights against White trespassers alone, but 
not against Negro trespassers and White and Negro 
trespassers in company. Surely, that would not be 
an impartial administration of the law, for it would 
be a denial to the White race of the equal protection 
of the law. If a land owner or one in possession of 
land cannot protect his natural, inherent and consti­
tutional right to have his land free from unlawful in­
vasion by Negro and White trespassers in a case like 
this by judicial process as here, because it is State 
action, then he has no other alternative but to eject 
them with a gentle hand if he can, with a strong hand 
if he must. * * * ”

It plainly appears to us from the evidence that the ap­
pellants violated Section 16-386, as amended, of the 1952 
Code, in that they did unlawfully, knowingly and willfully

Opinion of Supreme Court of South Carolina



24a

commit a trespass by refusing to leave the premises of 
S. H. Kress & Company after being requested so to do. 
We quote the following from the case of Randolph v. Com­
monwealth, 202 Va. 661, 119 S. E. (2d) 817:

“ The defendant next contends that when the owner 
of the restaurant, through its employee, procured the 
warrant for the defendant’s arrest, this constituted 
State action to enforce a discriminatory rule or regula­
tion of the restaurant contrary to the provisions of 
the Fourteenth Amendment. A similar argument was 
advanced and rejected in State v. Clyburn, supra, 101 
S. E. (2d) at page 299; State v. Avent, supra, 118 S. E. 
(2d) at page 54; Griffin v. Collins, supra, 187 F. Supp. 
at page 153, 154. See also, 47 Virginia Law Review 
105, 119. Here the purpose of the judicial process is 
not to enforce a rule or regulation of the operator of 
the restaurant. Its purpose is to protect the rights of 
the proprietor who is in lawful possession of the prem­
ises and to punish the trespasser, irrespective of his 
race or color. See Hall v. Commonwealth, supra, 188 
Va. 72, 49 S. E. (2d) 369.”

The fact that the State of South Carolina provides a 
system of courts where S. H. Kress & Company can enforce 
its legal rights against trespassers upon its private prop­
erty in violation of Section 16-386, as amended, of the Code, 
and the acts of its judicial officers in their official capacities, 
does not constitute State action enforcing racial segrega­
tion in violation of the Fourteenth Amendment to the Con­
stitution of the United States.

The appellants also contend that their convictions should 
be reversed by this court because the action of the lower 
court was an interference with their constitutional rights

Opinion of Supreme Court of South Carolina



25a

of free speech guaranteed to them by the Fourteenth 
Amendment. It has been soundly held that freedom of 
speech or expression is not an absolute right. It must be 
exercised at proper times and places. Kovacs v. Cooper, 
336 IT. S. 77, 69 S. Ct. 448, 93 L. Ed. 513, 10 A. L. R. (2d) 
608. However, the appellants had no constitutional right 
to exercise their right of free speech as trespassers in the 
store of Kress & Company in violation of Section 16-386 
of the Code. State v. Avent, supra. This exception of the 
appellants is overruled.

The next question for determination is whether there 
was any evidence to support the convictions of the appel­
lants for a violation of Section 33-39 of the Code of the 
City of Charleston.

This ordinance makes it unlawful for any person to as­
sault, resist, hinder, oppose, molest, or interfere with any 
employee of the * # # police department of the city, in 
discharge of official duties. It appears from the evidence 
that the manager of the store of Kress & Company twice 
requested the appellants to leave the store premises. Im­
mediately following this, the Chief of Police of the City 
of Charleston made a similar request urging the appellants, 
for their own safety, to leave the premises. The appellants 
declined or failed to immediately comply with the request 
of the Chief of Police. There is testimony that the Chief 
of Police had received information that a bomb was to be 
exploded in the Kress building. However, the testimony 
does not show that this information was communicated to 
the appellants in connection with the request of the Chief 
of Police that they vacate the premises. As a matter of 
fact, the Chief of Police testified that the appellants were 
arrested for their failure to vacate the premises of Kress 
store when requested so to do by the manager. It was also

Opinion of Supreme Court of South Carolina



26a

testified that after the manager requested the appellants 
to leave the store that they did “nothing” and that when 
the Chief of Police requested them to leave the store, 
they did “nothing”, but when he told them that they were 
under arrest, the appellants “all stood up”. It was testi­
fied that the appellants were not discourteous, did not dis­
obey any order when they were placed under arrest, and 
they were not loud or boisterous in any way, and the appel­
lants left the store in company of the officers without 
causing any trouble.

In affirming the convictions of the appellants, the Circuit 
Court held that the act of trespass was final and complete 
before the entirely separate act “ of interference with a 
police officer in the discharge of his duty.”  It thus appears 
that the Circuit Judge held that the appellants were guilty 
of a violation of the above Code because they interfered 
with the Chief of Police of the City of Charleston in the 
discharge of his official duty, in that they “ did refuse to 
leave the premises and property of S. H. Kress & Company 
after being ordered and requested to do so by” said Chief 
of Police. Did the act of the appellants in doing “nothing” 
and refusing to leave the premises in question, after being 
ordered and requested to do so, amount to an unlawful 
interference by them of the said Chief of Police?

In 47 C. J. 8., at page 83, the term “ interfere” has been 
said to import action, not mere inaction, an active rather 
than a passive condition, and has been defined as meaning 
to interpose, to prevent some action, sometimes in a bad 
sense to intermeddle, to check or hamper, and, specifically 
to do something which hinders or prevents or tends to 
prevent the performance of legal duty. In its broadest 
aspects “ interfere” bears the significance of “disarrange”, 
“disturb” , “hinder” .

Opinion of Supreme Court of South Carolina



27a

In State v. Estes, 185 N. C. 752, 117 S. E. 581, the defen­
dant was convicted on an indictment charging that he un­
lawfully and willfully did resist, hinder, delay, obstruct 
and interfere with an officer of the board of health in the 
discharge of his duty as such. It appears from the evi­
dence in the cited case that the health officer went to the 
store of the defendant for the purpose of enforcing certain 
statutory requirements in regard to toilet facilities in the 
store which affected public health. The defendant used 
abusive and profane language towards the officer but did 
not get up from his desk where he was seated nor did he 
strike or offer to strike the officer and made no demonstra­
tion of violence whatever. In construing the North Caro­
lina statute, which contains the words “willfully interfere 
with or obstruct” an officer in the discharge of his duty, 
the Court, in granting a new trial, said:

“ To ‘interfere’ is to check or hamper the action of 
the officer, or to do something which hinders or prevents 
or tends to prevent the performance of his legal duty; 
and to ‘obstruct’ signifies direct or indirect opposition 
or resistance to the lawful discharge of his official 
duty. * * * ”

It appears to us that the conduct of the appellants in 
refusing obedience to the request of the Chief of Police 
of the City of Charleston was merely inaction on their 
part and did not constitute interference with said officer 
in the discharge of his official duty. We think the Court 
was in error in refusing to so hold.

"What we have heretofore said disposes of the question 
of whether the evidence establishes the corpus delicti or 
proves a prima facie case against the appellants. We do

Opinion of Supreme Court of South Carolina



28a

not pass upon the question of whether this issue was prop­
erly before us for consideration.

It is the judgment of this Court that the convictions of 
the appellants for violation of Section 16-386, as amended, 
of the 1952 Code of Laws of South Carolina is affirmed, 
and the convictions of the appellants for a violation of 
Section 33-39 of the 1952 Code of Laws of the City of 
Charleston is reversed and remanded for entry of a judg­
ment of acquittal.

Affirmed in part and reversed in part.

T aylor , C.J., O xn er , L egge and L ew is , JJ., concur.

Opinion of Supreme Court of South Carolina



29a

I n  th e

SUPREME COURT OF SOUTH CAROLINA

C it y  of C h arlesto n ,
Respondent,

— v .—

M it c h e l l , et a l.,
Appellants.

Order of Denial of Petition for Rehearing

(Endorsed on back of Petition for Rehearing)

Petition Denied.

Filed: January 8,1962

s/ C. A. T aylor C. J.

s / G. D ew ey  O xn er  A. J. 

s / L io n el  K. L egge A. J. 

s / J oseph  R. M oss A. J. 

s / J. W oodrow L ew is  A. J.



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