Local Union No. 84, International Brotherhood of Electrical Workers, AFL-CIO v. United States Brief in Opposition

    I n the

1  nitzb ^tate (Eiwrt of Kppmh
F oe th e  F if t h  Ciectjit 

No. 24259

M rs. P atricia B. M iller , et al.,
Appellants,

v.

A m u sem en t  E nterprises, I n c . d /b /a  
F u n  F air P ark ,

Appellee.

appeal from th e  u nited  states district court

FOR THE EASTERN DISTRICT OF LOUISIANA

SUPPLEMENTAL BRIEF FOR APPELLANTS 
ON REHEARING

J ack  G reenberg 
J ames M. N abrit , III 
N orman C. A m a k fr 
M ichael  M eltsner

10 Columbus Circle 
New York, New York 10019

J o h n n ie  A. J ones

530 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Appellants

W illiam  B e n n ett  T urner 
10 Columbus Circle 
New York, New York 10019 

Of Counsel



TABLE OF CONTENTS

Statement ..................................... ........................................ 1

A egum ent—

I. The Decision of the Panel Affirming the Narrow 
Construction by the District Court of Sections 
201(b) (3) and (c)(3 ) of the Civil Bights Act of 
1964, Failed to Give Effect to the Overriding 
Purpose of Title II. It Must Therefore be Over­
turned and the Decision of the District Court

PAGE

Reversed...................................................................  2

A. Introduction ....... ................................................  2

B. The Ejusdem Generis Rule of Construction
Was Narrowly Applied In Derogation of the 
Overriding Purpose of Title I I ....... ...............  7

C. Contrary To The District Court’s Narrow
Construction of §201(c)(3) of Title II, The 
Operations of Fun Fair Park Do “Affect 
Commerce” Within the Meaning of That Sec­
tion Regardless of Whether the “ Sources of 
Entertainment” Plave Ceased to Move in 
Commerce ..........................................................  11

II. The Issue as to the Interpretation of the Civil 
Rights Act of 1964 is Properly Before This 
Court; the Court Is Not Being Called Upon to 
Render An Advisory Opinion or Resolve A
Hypothetical Question ..... ....... .............. ............ . 15

Conclusion  .......................................... ............................... ...... . 18

Certificate of Service 19



11

T able op A uthorities

Cases:

Alabama State Federation of Labor v. McAdory, 325 
U.S. 450 (1945) ............. .................................. ..............  17

Associated Beverages Co. v. P. Ballantine & Sons,
287 F.2d 261 (5th Cir. 1961) ....................................... 16

Gooch v. United States, 297 U.S. 124 (1936) ............... 8

Hamilton v. Rathbone, 175 U.S. 414 (1899) ............... 3
Heart of Atlanta Motel v. United States, 379 U.S. 241 

(1964) ...... .......... ............. ................................................  13
Helvering v. Stockholms Enskilda Bank, 293 U.S. 84 

(1934) ..........................................................   8

Johnson v. Southern Pacific Co., 196 U.S. 1 (1904) .... 5, 6

Katzenbach v. McClung, 379 U.S. 294 (1964) ...........13,14
Kyles v. Culberson, 263 F. Supp. 412 (E.D. Ark. 1967) 18

Laird v. Air Carrier Engine Service, 263 F.2d 948 
(5th Cir. 1959) ........................................................    16

Muskrat v. United States, 219 U.S. 346 (1911) ...........  16

Reich v. Webb, 336 F.2d 153 (9th Cir. 1964), cert. den.
380 U.S. 915......................................................................  10

Ringling Bros.—Barnum & Bailey Combined Shows 
v. Olvera, 119 F.2d 584 (9tli Cir. 1941) ................... 16

Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967) ....5,10

Securities and Exchange Commission v. Joiner Corp.,
320 U.S. 344 (1943) ......................................................... 9

PAGE

United States v. Alpers, 338 U.S. 680 (1950) 8,9



1X1

United States v. American Trucking Assn., 310 U.S.

PAGE

534 (1940) ................ ....................... ................................ 4,12
United States v. Brown, 333 U.S. 18 (1948) ...............  5
United States v. Gaskin, 320 U.S. 527 (1944) ............... 6
United States v. Johnson, 319 U.S. 302 (1943) ........... 17

Willis v. The Pickrick Restaurant, 231 F. Supp. 396 
(N.D. Ga. 1964), app. dismissed sub nom. Maddox 
v. Willis, 382 U.S. 18, rehearing den. 382 U.S. 922 ....13,14

Federal Statutes:

42 U.S.C. §2000a-l......................................................  5

42 U.S.C. §2000a(b) (2) ............................................  15

42 U.S.C. §2000a(b) (3) ........................................... . 1

42 U.S.C. 12000a(b)(4) ..............................-.............  15

42 U.S.C. §2000a(c) (3) ............................................  1

Civil Rights Act of 1964, Title I I :

§201 (b)(2) .................................................... 15,16,18

§201 (b)(3) .......................................1 ,2,5,6 ,7,11,12

§201 (b)(4) .................................................... 15,16,18

§201 (c) ................................................................ 12,14

§201 (c)(2 ) ..................  5,11,14,16

§201 (c)(3 ) ...........................................1,2,5,6,13,14

§201(c) (4) ............ ............ .......................... -.... 16,18

§202 ............................................................................................... ............................. - ..................... - ........................-  5



IV

Other Authorities:

109 Cong. Eec. 12275-77 ............................................  7

110 Cong. Eec. 13426, 13432 (daily ed. June 16,
1964) .................................................... -....................  14

1 Blackstone Comm. 61 (8th ed. 1778) ................— 3

2 Sutherland, Statutes and Statutory Construc­
tion, §4910 (Horack ed. 1943) ...........................9,10

Hey don’s Case, Exchequer, 1584, 30 Coke 7a, 76 
Eng. Eep. 637 ..........................................................  3

Securities Act of 1933 ..............................................  10

PAGE



I n  t h e

Imtpfc (Emtrt nf Appeals
F ob th e  F if t h  C ircuit 

No. 24259

M rs. P atricia B. M iller , et al.,
Appellants,

v.

A m u sem en t  E nterprises, I n c . d /b /a  
F u n  F air P a r k ,

Appellee.

APPE A L FROM  T H E  U N IT E D  STATES D ISTRICT COURT 

FOR T H E  EASTERN D ISTRICT OF L O U ISIA N A

SUPPLEMENTAL BRIEF FOR APPELLANTS 
ON REHEARING

Statement

This case, involving construction of the “ entertainment” 
provisions, §§201(b)(3) and (c)(3 ) of Title II of the Civil 
Eights Act of 1964 (42 U.S.C. §§2000a(b)(3) and (c )(3 )), 
was brought here by appeal on October 4, 1966 from a deci­
sion of the district court for the Eastern District of Loui­
siana (per E. Gordon West, J.) holding a privately owned 
amusement park in Baton R-ouge, Louisiana exempt from 
the coverage of these provisions and thus able to continue 
to discriminate against Negroes with impunity. After 
briefing, oral argument before a panel of this court, Circuit 
Judges Rives and Dyer and District Judge Johnson, was



2

held on June 12, 1967. On September 6, 1967, the district 
court decision was affirmed by a 2-1 vote with Judge John­
son dissenting. On September 27, 1967, appellants peti­
tioned the court for rehearing en banc and the petition 
was granted by order of this court dated October 25, 1967.

A complete statement of the case is in appellants’ prior 
brief at pp. 1-4. Appellants hereby adopt and incorporate 
that statement and the argument into this supplemental 
brief on rehearing which is submitted in accordance with 
the clerk’s letter also dated October 25, covering transmis­
sion of the order granting rehearing en banc.

ARGUMENT

I

The Decision of the Panel Affirming the Narrow Con­
struction by the District Court o f  Sections 2 0 1 (b ) ( 3 )  
and ( c )  (3 )  o f  the Civil Rights Act o f  1964, Failed to 
Give Effect to the Overriding Purpose o f  Title II. It 
Must Therefore be Overturned and the Decision of the 
District Court Reversed.

A. Introduction.

The district court decision and that of the panel affirm­
ing it (over Judge Johnson’s vigorous dissent) departed 
from the spirit and intent of the nation, acting through 
the President and its representatives in Congress, in 
proposing, enacting and signing the 1964 Civil Rights Act, 
and, in particular, Title II, which was described as the 
“heart” of the bill.

The result here contended for by appellants, i.e., reversal 
of the decision below, is the only result that will give effect



3

to the intent and purpose of the Act and, particularly, 
Title II. Appellants submit that this result is required if 
the court in approaching construction of the specific pro­
visions here involved, takes account of the Act’s overriding 
purpose.

The approach to construction which appellants urge on 
the court, has very old credentials.1 It was the approach 
taken by Judge Johnson in his dissent from the holding 
of the majority of the panel which he characterized as one 
which, “completely ignores a strong and, to me, conclusive 
history of Executive and Congressional general intent and 
purpose to the effect that the enactment of Title I I :

‘Would make it possible to remove the daily affront 
and humiliation involved in discriminatory denials of 
access to facilities ostensibly open to the general 
public.’ 1 (Slip opinion, pp. 31-32)

1 Statement made by the House Judiciary Committee on Title II  in 
reporting the bill on November 20, 1963. U. S. House of Representa­
tives Report No. 914, 88th Congress, 1st Session, Part I, p. 18.” 
(Judge Johnson’s footnote)

It is the approach which has been often taken by the Su­
preme Court, e.g., Hamilton v. Rathbone, 175 U.S. 414, 
419 (1899):

1 “ . . . and then the office of all the Judges is always to make such con­
struction as shall suppress the mischief, and advance the remedy, and to 
suppress subtle inventions and evasions for continuance of the mischief 
. . . and to add force and life to the cure and remedy, according to the 
true intent of the makers of the Act, . . .”  Heydon’s Case, Exchequer, 
1584. 30 Coke 7a, 76 Eng. Rep. 637.

# * # # #
“ But, lastly, the most universal and effectual way of discovering the 

true meaning of a law, when the words are dubious, is by considering the 
reason and spirit o f it ; or the cause which moved the legislator to enact it. 
For when this reason ceases, the law itself ought likewise to cease with it.” 
1 Blackstone Comm. 61 (8th ed. 1778).

Unhappily, the reason for the Civil Rights Act of 1964, as evidenced 
by this case, has not ceased nor is it likely to cease for decades.



4

The general rule is perfectly well settled that, where 
a statute is of doubtful meaning and susceptible upon 
its face of two constructions, the court may look into 
prior and contemporaneous acts, the reasons which 
induced the act in question, the mischiefs intended to 
be remedied, the extraneous circumstances, and the 
purpose intended to be accomplished by it, to deter­
mine its proper construction.

and United States v. American Trucking Assn., 310 TT.S.
534, 543-44 (1940) :

There is, of course, no more persuasive evidence of 
the purpose of a statute than the words by which the 
legislature undertook to give expression to its wishes. 
Often these words are sufficient in and of themselves 
to determine the purpose of the legislation. In such 
cases we have followed their plain meaning.18 When 
that meaning has led to absurd or futile results, how­
ever, this Court has looked beyond the words to the 
purpose of the act.19 Frequently, however, even when 
the plain meaning did not produce absurd results but 
merely an unreasonable one “plainly at variance with 
the policy of the legislation as a whole” 20 this Court 
has followed that purpose, rather than the literal 
words.21 When aid to construction of the meaning of 
words, as used in the statute, is available, there cer­
tainly can be no “rule of law” which forbids its use,22 
however clear the words may appear on “ superficial 
examination.” 23 The interpretation of the meaning 
of statutes, as applied to justiciable controversies, is 
exclusively a judicial function. (Text of footnotes 
omitted but see cases cited in notes 19-23)



5

See also Johnson v. Southern Pacific Go., 196 U.S. 1 (1904); 
United States v. Brown, 333 U.S. 18 (1948). It was also 
the approach, taken by another panel of this court in con­
struing a different section (202, 42 U.S.C. §2000a-l)2 of this 
very A ct:

In the context that the words “ custom and usage” 
are alleged, they would have or purport to have, if 
proven, the force of a law, ordinance, regulation, rule 
or order of the City of New Orleans, which, in view 
of the comprehensive objectives of the Act, we hold 
the language of Section 2000a-l sufficiently broad to 
cover. Robertson v. Jolmston, 376 F.2d 43, 45 (5th Cir. 
1967) (footnotes omitted)

By contrast, the district court utilized a maxim of statu­
tory construction, the ejusdem generis rule, to convert the 
language of §§201(b)(3) and (c)(3 ) of the Act into “ an 
inexorable command to override common sense and evident 
statutory purpose,” United States v. Broivn, supra, at 25 
and seized upon a slight verbal difference between the 
language of §201(c)(2)3 and that of §201(c)(3)4 (259

2 “AH persons shall be entitled to be free, at any establishment or place, 
from discrmination or segregation of any kind on the ground of race, 
color, religion, or national origin, if  such discrimination or segregation is 
or purports to be required by any law, statute, ordinance, regulation, rule, 
or order of a State or any agency or political subdivision thereof.”

3 “ The operations of an establishment affect commerce within the mean­
ing o f this title if . . . (2) in the case of an establishment described in 
paragraph (2) of subsection (b), it serves or offers to serve interstate 
travelers or a substantial portion of the food which it serves or gasoline 
or other products which it sells, has moved in commerce;”  (emphasis 
supplied)

4 “ The operations of an establishment affect commerce within the mean­
ing of this title if . . .  (3) in the case of an establishment described in 
paragraph (3) o f subsection (b), it customarily presents, films, per­
formances, athletic teams exhibitions, or other sources of entertainment 
which move in commerce;”  (emphasis supplied)



6

F. Supp. at 528) as a requirement for “distortion or nul­
lification of the evident meaning and purpose of the legis­
lation,” United States v. Gaskin, 320 U.S. 527, 530 (1944). 
In this court, the panel’s majority endorsed the district 
court’s “ inadmissible narrowness of construction,” John­
son v. Southern Pacific Co., supra, at 14, and further held 
that some parts of the legislative history pertaining to the 
enactment of §§201(b)(3) and (c)(3 ) which the United 
States termed “ inconclusive,” “greatly overbalanced” (Slip 
op. p. 7) those parts which the majority conceded “may 
lend support to the appellants’ position” {ibid.). Of course, 
appellants have argued that those parts conclusively sup­
port our position and the court is referred to that argu­
ment.6 However, we need not take a position at variance! 
with that of the United States regarding the legislative 
history to conclude as did Judge Johnson that, “ [t]he 
effect of the narrow construction as made both by the dis­
trict court and the majority of [the panel]—this narrow 
construction being based upon an “ inconclusive’ legislative 
history—” (Slip op. p. 31), is to place the stamp of judicial 
approval on the discriminatory racial exclusion here in­
volved in derogation of the clear statutory purpose. Surely, 
that is not what Congress and the President intended.

The argument which follows below deals with each branch 
of the narrow construction made by the district court and 
demonstrates how that construction defeated the purpose 
and intent of Title II of the Act. 5

5 Brief for Appellants, pp. 5-9.



7

B. The Ejusdem Generis Rule of Construction Was Narrowly 
Applied In Derogation of the Overriding Purpose of 
Title II.

The panel’s decision addressed itself only to the issue of 
whether an amusement park is a “place of entertainment” 
within §201 (b)(3) of the Act. In holding that amusement 
parks are not within the ambit of the Act, the court relied 
on selected references in the legislative history6 supporting 
the trial court’s distinction between places of entertain­
ment presenting exhibitions and places where customers 
amuse themselves, and on the trial court’s reasons for 
applying the rule of ejusdem generis. The panel’s reliance 
was misplaced.

Standing alone, the phrase “place of entertainment” cer­
tainly includes an amusement park. To hold otherwise 
would do violence to the plain meaning of the phrase. But 
the phrase admittedly does not stand alone, and the issue 
thus becomes whether its generality should be limited by 
the ejusdem generis rule of construction.

The trial court and the panel of this court discerned, 
as a basis for applying ejusdem generis, a statutory dis­
tinction between places of entertainment which present 
exhibitions and places in which the customers participate 
in some way. Since Fun Fair Park does not present 
“ exhibitions,” it was held not to be like other places of 
entertainment enumerated in the Act. But the distinction

6 However, the panel itself recognized that “some parts of the legislative 
history may lend support to the appellants’ position, (slip op. p. 7), 
 - F.2d at ------ . The Justice Department’s memorandum filed in re­
sponse to this court’s order of June 13, 1967 flatly concludes that the 
history is “ inconclusive”  on the issue. However, the only specific reference 
to amusement parks in the legislative history is Senator Humphrey’s state­
ment on the Senate floor that a recent disturbance at an amusement park 
near Baltimore clearly pointed up the need for a law like Title II  to 
guarantee equal access to such public facilities. 109 Cong. Bee. 12275- 
12277, quoted at Slip op. pp. 18-19.



8

is purely verbal and is without significance, for it has no 
rational relation to the purpose of the statute. The statu­
tory purpose, as noted in Judge Johnson’s dissenting opin­
ion, is “ to remove the daily affront and humiliation in­
volved in discriminatory denials of access to facilities 
ostensibly open to the general public.” 7 This purpose in 
no way suggests or lends any logical support to a distinc­
tion between “places of entertainment” offering some kind 
of “ exhibition” and “places of entertainment” where cus­
tomers somehow “participate” in the entertainment.8 In 
short, the distinction is empty when considered in the 
light of the statutory purpose.

Furthermore, the Supreme Court has repeatedly made 
it clear in analogous cases that the rule of ejusdem generis 
“may not be used to defeat the obvious purpose of legisla­
tion.” United States v. Alpers, 338 U.S. 680, 683 (1950); 
Gooch v. United States, 297 U.S. 124,128 (1936); Helvering 
v. Stockholms Enskilda Bank, 293 U.S. 84, 88-89 (1934).

In the Alpers case, the issue was whether a federal crim­
inal statute condemning the interstate shipment of any 
“ obscene . . . book, pamphlet, picture, motion-picture film, 
paper, letter, writing, print, or other matter of indecent 
character” also prohibited the interstate shipment of ob­
scene phonograph records. The Court of Appeals found 
a distinction between phonograph records and the enu­
merated objects which it found to be comprehensible by 
sight only (just as the trial court and the panel found a 
statutory distinction in the instant case), and invoked the 
rule of ejusdem generis to hold the statute inapplicable.

7 See p. 3 above.
8 The distinction, even if valid in other contexts, is not applicable to 

amusement parks in any event, for surely they are a type of spectacle, 
and the customers’ enjoyment does not depend solely on their actual 
participation in the available activities.



9

The Supreme Court, however, found no Congressional pur­
pose to limit the scope of the statute to visually obscene 
objects. The Court emphatically rejected the rule of 
ejusdem generis even though, unlike the instant case, ( l j  
the statute had previously been amended by Congress 
specifically to include one proscribed object (motion-pic­
tures), (2) a criminal statute was involved, which the 
Court recognized should normally be narrowly construed, 
and (3) including phonograph records under the statute’s 
general language could be a form of censorship raising 
First Amendment difficulties.9

Similarly, in Securities and Exchange Commission v. 
Joiner Corp., 320 TJ.S. 344 (1943), the Court held that an 
assignment of an oil lease was a “ security” within the 
Securities Act of 1933—because the purpose of the Act 
so required. Mr. Justice Jackson firmly rejected the rule 
of ejusdem generis, stating that the details of the statute 
must be construed “ in conformity with its dominating 
general purpose.” 10 Again, the statute carried criminal 
penalties (although the case before the Court was not a 
prosecution) and again the Court ruled that the statutory 
purpose must take precedence over the traditional canons 
of narrow construction of criminal statutes and ejusdem 
generis.

In short, the rule of ejusdem generis, which is a reflec­
tion of a “nineteenth century suspicion of statutory 
change,” 11 cannot be applied when its application would 
conflict with the dominant statutory purpose. After all, 
legislators merely:

9 338 U.S. at 685-8 (dissenting opinion).
10 320 U.S. at 350.
112 Sutherland, Statutes and Statutory Construction, §4910 (Horack 

ed. 1943).



10

“ enumerate specific objects or conditions which have 
come to their attention, but this enumeration is not 
intended to limit the operation of the statute to the 
specific objects set forth. They provide express ex­
amples of the problem; the legislative intent is to 
regulate the problem and not the enumeration.”  12

Thus, Congress dealt in Title II with the problem of 
racial discrimination by establishments ostensibly open to 
the public, and that concern requires that the enumeration 
of specific objects not be narrowly confined—the words 
“place of entertainment” should be accorded their normal 
meaning.

This is especially true where the statute is not criminal 
and where there is no need for a narrow construction to 
sustain the constitutionality of the statute.13 As Judge 
Johnson correctly perceived, application of a rule of literal 
construction makes no sense when it conflicts with the 
“ overriding purpose” of Title II.14 This Court has already 
recognized that literalness cannot, “ in view of the com­
prehensive objectives of the Act,” control the interpreta­
tion of Title II.15 This Court should remain true to that 
approach. It should hold that amusement parks are not 
exempt from the coverage of the 1964 Act.

12 Ibid. (Emphasis in original).
13 See Reich v. Webb, 336 F.2d 153, 157 (9th Cir. 1964), cert, denied, 

380 U.S. 915. Appellee here has not argued, nor could it be argued, that 
Title II cannot constitutionally reach Fun Fair Park.

14 Slip op. p. 2 9 ,------ F.2d a t ------- .
15 Robertson v. Johnston cited supra, at p. 5.



11

C. Contrary To The District Court’s Narrow Construction of 
§201 ( c ) ( 3 )  of Title II, The Operations of Fun Fair Park. 
Do “ Affect Commerce”  Within the Meaning of That Sec­
tion Regardless of Whether the “ Sources of Entertain­
ment”  Have Ceased to Move in Commerce.

The panel which affirmed the district court did not con­
sider the question of whether appellee’s operations “affect 
commerce” so as to be covered by Title II. The panel did, 
however, rely on the reasons expressed by the district 
court in deciding for appellee. The district court held 
that even if Fun Fair Park were a “place of entertainment” 
within §201 (b )(3 ), its operations do not “affect commerce” 
in the manner specified in §201(c)(3).

The district court reached this conclusion by seizing 
upon a difference in language between subsections (c) (2) 
and (c)(3 ) of §201. The court noted that the test of sub­
section (c)(2 ), relating to restaurants and the like, is 
satisfied if a substantial portion of the food served “has 
moved” in commerce. The court, however, found an “ en­
tirely different test” in subsection (c )(3 )—whether the 
establishment presents sources of entertainment “which 
move” in commerce.16 The court found that the eleven 
sources of entertainment presented by Fun Fair Park, 
ten of which were manufactured outside Louisiana and 
six of which were directly purchased from outside the 
State (E. 89), had stopped moving in commerce and had 
come to rest in Louisiana.17 Therefore, the court reasoned

16 259 F. Supp. at 527.
17 The record does not disclose the extent to which or the frequency 

with which repair materials or replacement parts for the rides operated 
at Fun Fair Park are purchased from out of state sources. However, it 
is a fair assumption that the frequency of this occurrence, if known, 
would substantially undercut one of the major factual premises o f the 
district court’s opinion, i.e., that the sources have a permanent, fixed loca­
tion and therefore do not move in commerce (259 F. Supp. 528). How­
ever, in the view we take of the “affect commerce”  requirement, whether or 
not these sources are permanently affixed is irrelevant.



12

that appellee’s operations did not satisfy the “which move” 
language of subsection (c) (3) and, accordingly, did not 
“affect commerce” within the meaning of subsection (b) (3).

Here too, the court misconstrued the statute. It held 
that §201 (c) lists “specific requirements” which the opera­
tions of an establishment “ must meet” (our emphasis) in 
order to “ affect commerce” within the meaning of Title 
II.18 With scant attention to the aims of the legislation, 
it read the language of the opening clause of §201(c) (see 
notes 3 and 4 at p. 5 above) as “ if and only if.” Such a 
reading, of course, leads to—and has in this case— “absurd 
or futile results . . . ‘plainly at variance with the policy 
of the legislation as a whole’ ” (see quote from United 
States v. American Trucking Assn., supra at p. 4). 
An establishment’s operations “affect commerce” if either 
in the manner of its operations or in its effect, it is within 
the ambit of Congress’ power to regulate interstate com­
merce. The tests listed in §201(c) are not exclusive; they 
are not the sole tests for determining when the opera­
tions of an establishment affect commerce. They are 
merely badges or indicators of things which affect com­
merce which Congress included to facilitate the proof 
of such effect, but their listing does not preclude a find­
ing that an establishment’s operations affect commerce in 
other ways. In short, Congress has said: “These things 
will surely support a finding that an establishment’s 
operations ‘affect commerce’ but there are other ways in 
which a finding that commerce has been affected can be 
made.” 19

18 259 F. Supp. at 527.
19 Congress apparently realized that there might be some business es­

tablishments open to the public of such a local nature that they would not 
in the usual ease “ affect commerce.”  Though admittedly few in number, 
it seems reasonable to assume that Congress decided that one means of



13

The record in the instant case is replete with Fun Fair 
Park’s interstate commerce contacts. They are set forth 
in appellant’s prior brief in this court20 and are referred 
to in Judge Johnson’s dissenting opinion.21 In addition, 
the kinds of commerce contacts are generally the same as 
those used by the courts to sustain the constitutionality 
of Title II in Katzenbach v. McClung, 379 U.S. 294 (1964); 
Willis v. The Pickrick Restaurant, 231 F. Supp. 396 (N.D, 
Ga. 1964), appeal dismissed sub nom. Maddox v. Willis, 
382 U.S. 18, rehearing denied 382 U.S. 922; and Heart of 
Atlanta Motel v. United States, 379 U.S. 241 (1964). Thus, 
(1) Fun Fair Park is representative of other privately 
owned amusement parks throughout the country, and if 
discrimination by it is left unchecked, the total incidence 
of such conduct will have a harmful affect on commerce 
(cf. Willis, supra at 400, Katzenbach, supra at 299); (2) 
Fewer rides and foodstuffs are sold at Fun Fair Park 
because of its discriminatory policy and less spending is 
done by Negroes who would otherwise have access to the 
park. This in turn has a cumulative affect on commerce, 
(cf. Katzenbach, supra at 299); (3) Discrimination by 
Fun Fair Park and like establishments deters professional 
and skilled people, especially Negroes, from moving into

lessening the amount of litigation with respect to such establishments would 
be to describe the kinds of incidences of commerce effect that would prob­
ably include most establishments that did in fact affect commerce. This it 
did in fairly broad language in subsections (2) and (3) of §201. (A p­
parently, Congress could not think of any lodging establishment other than 
“ Mrs. Murphy’s”  that would not affeet commerce and hence concluded that 
it need not specify any particular test for that determination.)

It would, however, require too much of Congress, or indeed any group 
of legislators, to ask that it furnish a precise set of indices for all situa­
tions in which the operation of an establishment affected commerce in 
fact. This, Congress obviously thought, the courts could supply in partic­
ular cases in light of the statutory purpose. This is such a case.

20 Appellants’ Brief, pp. 15-18.
21 Slip op., p. 3 1 ,------ F.2d a t --------.



14

such an area where opportunities for recreation that others 
take for granted are denied. In addition, industry may 
be reluctant to relocate in such an area because of dis­
crimination against its employees (cf. Katzenbach, supra 
at 300); (4) Discriminatory situations, such as that existing 
at Fun Fair, have a depressant effect on general business 
conditions in a community (cf. Katzenbach, supra at 300); 
(5) Fun Fair’s advertising is unrestricted and no inquiry 
is made whether its customers are local or interstate 
travelers (cf. Willis, supra at 399); (6) Fun Fair is situated 
just off a main highway (cf. Willis, supra at 399). In 
short, there is no question that the operations of Fun 
Fair Park “ affect commerce.”

But even if this court construes subsection (c) of §201 
to preclude an inquiry beyond the commerce contacts 
specifically mentioned, the district court’s decision should 
not be upheld. That court’s distinction between the “has 
moved” language of subsection (c)(2 ) and the “which 
move” test of subsection (c)(3 ) is purely verbal and 
without significance. The Senate considered and em­
phatically rejected an attempt to make just that distinc­
tion. Senator Ervin’s amendment No. 755 would have 
added to subsection (c) (3) the words “and have not come 
to rest within a state.” 22 23 * * This would have been an im­
portant clarification if Congress had realty intended a 
different standard depending on whether goods which have 
moved in commerce have ceased so to move. Its rejection 
undercuts the district court’s fine reasoning.28 Where an

22110 Cong. Ree. 13426, 13432 (daily ed. June 16, 1964) (quoted in 
the memorandum of the United States attached as an exhibit to the major­
ity opinion of the panel, Slip op., p. 2 7 ,------ F.2d at  ------- ).

23 Cf. Katzenbach v. McClung, 379 U.S. 294, 302 (1964), where the
Supreme Court said that Commerce Clause cases holding that interstate
commerce ends when the goods come to a rest are not apposite—they 
apply with reference to state taxation or regulation “but not in the field 
of federal regulation.”



15

establishment has substantial commerce contacts, as does 
Fun Fair Park, the fine verbal distinction seized upon by 
the district court can only serve to thwart the statute’s 
purpose.

II

The Issue as to the Interpretation of the Civil Rights 
Act o f  1964 is Properly Before This Court; the Court 
Is Not Being Called Upon to Render An Advisory Opin­
ion or Resolve A Hypothetical Question.

After appellants petitioned the court for rehearing en 
banc, the United States filed a memorandum asking this 
court not to decide the case presently before it, but to 
remand it to the district court for an evidentiary hearing 
on an issue which the parties stipulated out of the case, 
i.e., whether the presence of the concession stand on Fun 
Fair Park’s premises makes it a covered establishment 
under §§201(b)(2) and (4) of the Act (42 U.S.O. §§2000a- 
(b)(2) and (4)). Even if the Government’s request were 
timely,24 25 and even if the Government has standing to make 
the request,26 its position is wrong.

At the pre-trial conference, the parties agreed to nar­
row the issues by stipulating that plaintiff was making

24 Despite the Government’s earlier opportunity to make its position 
known, its request comes at a time when, if granted, it would render fruit­
less considerable time and effort already expended by the district court, 
this court and the parties.

25 When the memorandum which was labeled “ Memorandum of the 
United States as Amicus Curiae on Appellants’ Petition for Rehearing” 
was filed, there had been no order of this court formally designating the 
United States as amicus curiae. The order of June 13 only ordered the 
United States to file its memorandum setting forth the legislative history. 
After the rehearing petition was granted, the clerk in a letter dated No­
vember 9, 1967, sent at the court’s direction, for the first time invited the
Government to appear and argue as amicus curiae on rehearing.



16

no claim that defendant, in the operation of its concession 
stands, was violating §§2Gl(b) (2), 201(c)(2), 201(h)(4) 
or 201(c)(4) of the Civil Rights Act of 1964. In accord­
ance with Rule 16 of the Federal Rules of Civil Procedure, 
the stipulation was incorporated in the pre-trial order.

Rule 16 provides that a pre-trial order “ controls the 
subsequent course of the action, unless modified at the 
trial to prevent manifest injustice.” This court has re­
peatedly reaffirmed the binding effect of stipulations em­
bodied in pre-trial orders and the desirability of full use 
of the Rule 16 pre-trial procedures. See Associated Bev­
erages Co. v. P. Ballantine & Sons, 287 F.2d 261 (5th Cir. 
1961); Laird v. Air Carrier Engine Service, 263 F.2d 948 
(5th Cir. 1959). See also Ringling Bros.—Barnum & Bailey 
Combined Shows v. Olvera, 119 F.2d 584 (9th Cir. 1941), 
where the Ninth Circuit held a pre-trial stipulation bind­
ing despite evidence to the contrary introduced at the trial.

The Government now asks this court to nullify the stip­
ulation and pre-trial order. However, it does not argue 
that modification is required “ to prevent manifest injus­
tice” as provided by Rule 16. In fact, neither party is 
asking to be relieved of the agreement.26 Rather, the Gov­
ernment argues that this court should not decide the issue 
before it because to do so would be to render an advisory 
opinion or to resolve a hypothetical question. That this 
argument is without merit is demonstrated by the cases 
cited by the Government.

In Muskrat v. United States, 219 IT.S. 346 (1911), the 
Supreme Court held unconstitutional a federal statute 
purporting to confer jurisdiction on the Court of Claims

26 See appellee’s “Answer to Memorandum of the United States”  filed 
here subsequent to the Government’s memorandum and prior to issuance 
o f the order granting rehearing.



17

(and on the Supreme Court on appeal) to determine the 
constitutional validity of certain other acts of Congress. 
The Court noted that the judicial power under Article III, 
§2 of the Constitution extends only to “ cases” and “con­
troversies.” It held that the courts were only empowered 
to decide “ actual controversies arising between adverse 
litigants.” 27 This reasoning was followed in United States 
v. Johnson, 319 U.S. 302 (1943), and Alabama State Fed­
eration of Labor v. McAdory, 325 U.S. 450 (1945). In 
Johnson, the plaintiff admitted that he had brought a 
“ friendly suit” at the defendant’s request and expense. 
The suit challenged the constitutionality of a federal stat­
ute. The court held that the suit was “collusive” because 
it was “not in any real sense adversary”—it did not involve 
an “honest and actual antagonistic assertion of rights.” 28 
In McAdory, the Court dismissed the writ of certiorari 
when it appeared that the Court was being asked to pass 
on the constitutional validity of a state statute which had 
not been applied or threatened to be applied to the peti­
tioners.

Applying these principles to the instant case, it is clear 
that the issue presented here is part of a “case” or “con­
troversy” ripe for decision by this court. Certainly there 
is no suggestion of collusion between the parties, and the 
issue of the scope of coverage of the public accommoda­
tions provisions of the 1964 Civil Rights Act has been 
vigorously litigated. That appellee will have to change 
its policy of racial discrimination if appellants’ position 
prevails, and that appellants can lawfully be turned away 
from Fun Fair Park if appellee prevails, makes it plain 
that the parties’ positions are genuinely adverse. Finally, 
the issue before this court is not a constitutional one, as

27 219 U.S. at 361.
28 319 U.S. at 305.



18

it was in the cases cited by the Government. Thus, there 
is no real question of either the power of this court to 
decide the case before it or of the propriety of its doing so.29

CONCLUSION

For the reasons stated, the decision of the panel of this 
court on September 6, 1967 should be vacated and the 
judgment of the district court reversed.

Respectfully submitted,

J ack  G reenberg 
J ames M . N abrit , III 
N orman  C. A m akbr  
M ichael  M eltsner

10 Columbus Circle 
New York, New York 10019

J o h n n ie  A . J ones

530 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Appellants

W illiam  B en n ett  T urner

10 Columbus Circle
New York, New York 10019

Of Counsel

29 The “ difficult question”  raised by the Government at page 5, Note 3, 
of its Memorandum is no less difficult than the problem which would be 
presented if this court remanded the case only to find that Fun Fair Park 
had shut down its concession stands and mooted the issue under 
55201(b)(2), 201(c)(2 ), 201(b)(4) and 201(c)(4). This is not merely 
speculation. Cf. Kyles v. Culberson, 263 F. Supp. 412, 417 (E.D. Ark. 
1967).



19

Certificate of Service

This certifies that on the 22nd day of November 1967, 
I served a copy of the foregoing Supplemental Brief for 
Appellants on Rehearing upon W. P. Wray, Jr., Esq. 
Wray & Simmons, Suite 504, Fidelity National Bank Bldg., 
Baton Rouge, Louisiana and upon Hon. John Doar, As­
sistant Attorney General of the United States, Civil Rights 
Division, Department of Justice, Washington, D. C. and 
David L. Norman, Chief, Appeals Section, Civil Rights 
Division, Department of Justice, Washington, I). C. by 
United States mail, postage prepaid.

N obmaet C. A makeb 
Attorney for Appellants



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