Garner v. Louisiana Brief Amicus Curiae

    N o s . 26, 27, 28

October I jerm, 1961

J osh B urrell Garner, et al., petitioners

Vi

S tate op L ouisiana

Mary B riscoe, et al., petitioners

v.
S tate op Louisiana

J annette B oston, et al., petitioners

V,

S tate op L ouisiana

ON WRITS OF CERTIORARI TO TEE SUPREME COURT 
OF LOUISIANA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ARCHIBALD COX,
Solicitor General, 

BURKE M A R S H A L L ,
Assistant Attorney General,

BRUCE J. TERRIS,
Assistant to the Solicitor General, 
HAROLD H. GREENE,
HOWARD A. GLICKSTEIN,

Attorneys,
Department of Justice,

Washington 2$, D.C.



I N D E X
Page

Opinions below_____ ________________________________  1
Jurisdiction______________
Questions presented_______
Interest of the United States------------ i------------------------  3
Statement_________________________________________ 4
Summary of argument---------------------------------------------  11
Argument_________________________________________  16

I, The convictions violate the due process clause of the 
Fourteenth Amendment because there was no 
evidence tending to prove essential elements of the 
only offense charged and no charge of any offense 
proved_____________________________________  18

A. There was no evidence tending to prove that
petitioners violated L.S.A.-R.S. 14:103(7) 
as charged in the informations__________  18

1. Petitioners did not commit any acts of
the kind proscribed by L.S.A.-R.S.
14:103_________________________ 20

2. There was no evidence tending to prove
that petitioners acted “in such a 
manner as would foreseeably disturb 
or alarm the public”____________  23

3. There was no evidence tending to prove
that petitioners’ conduct disturbed 
or alarmed the public____________  27

B. If the evidence tends to prove any offense, it
is an offense not charged. Conviction for 
such an offense would violate the Fourteenth
Amendment__________________________  30

II. The statute under which petitioners were convicted 
is, if applied to petitioners, so vague and uncertain as 
to violate due process_________________________ 33

A. Due process requires that a State statute give
fair notice of what conduct is criminal_____  34

B. Section 103(7) did not give fair notice to
petitioners that their actions were illegal___  35

607645—61 1 (I)

to
 to



II

Argument—Continued Page
III. In the circumstances of these cases petitioners’ arrest

and conviction were the result of State, not privately, 
imposed racial discrimination and therefore violate 
the equal protection clause of the Fourteenth 
Amendment_________________________________  38

IV. In Briscoe v. Louisiana, petitioners’ arrest and convic­
tion violated the Interstate Commerce Act_______  46

A. The Interstate Commerce Act prohibits dis­
crimination based on race in interstate bus 
terminals____________________    46

B. This contention can properly be considered by
this Court even though petitioners have not 
presented i t ___________________________ 49

Conclusion________________________________________  52

CITATIONS
Cases:

Ashwander v. Tennessee Valley Authority, 297 U.S.
288_________________________________________  50

Baldwin v. Morgan, 287 F. 2d 750______________  48
Boynton v. Virginia, 364 U.S. 454_____________  15, 47, 49
Burton v. Wilmington Parking Authority, 365 U.S.

715-------- ------------------------------------------------  41,43,45.
Chaplinsky v. New Hampshire, 315 U.S. 568______   37
Cole v. Arkansas, 333 U.S. 196________________  13, 30, 33
Connolly v. General Construction Co., 269 U.S. 385___ 34
International Harvester Co. v. Kentucky, 234 U.S. 216.. 37
Konigsberg v. State Bar, 353 U.S. 252______________ 18
Lametta v. New Jersey, 306 U.S. 451______________  34
Light v. United States, 220 U.S. 523______________  50
Marsh v. Alabama, 326 U.S. 501__________________ 16
Musser v. Utah, 333 U.S. 95_____________________  34
Nash v. United States, 229 U.S. 373_______________  34
Ohio Bell Telephone Go. v. Public Utilities Commission,

301 U.S. 292_________________________________  26
Plessy v. Ferguson, 163 U.S. 537__________________ 46
Roth v. United States, 354 U.S. 476______ ________ _ 35
Schware v. Board of Bar Examiners, 353 U.S. 232___  18
Siler v. Louisville cfc Nashville R. Co., 213 U.S. 175__ 50
Smith v. California, 361 U.S. 147_________________  36
State v. Christine, 239 La. 259____________________  37



Ill

Cases—Continued Page
State v. Kraft, 214 La. 351_______________________ 37
State v. Martin, 199 La. 39___________________  13, 31, 32
State v. Morgan, 204 La. 499_____________________  33
State v. Sanford, 203 La. 961______  11, 14, 20, 21, 26, 35, 37
Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350____ 46
Thompson v. City of Louisville, 362 U.S. 199. --------- 18, 25
Town of Ponchatoula v. Bates, 173 La. 823, 138 So. 851 _ 11, 20
United States v. C.I.O., 335 U.S. 106---------------------  16, 50
United States v. Shaughnessy, 234 F. 2d 715__ _____  26
United States ex rel. Vajtauer v. Commissioner of Immi­

gration, 273 U.S. 103__________________________ 18
Wickard v. Filhurn, 317 U.S. I l l _________________  48
Winters v. New York, 333 U.S. 507________________34, 36
Yick Wo v. Hopkins, 118 U.S. 356________________  15, 45

Constitution and Statutes:
Constitution of the United States, Fourteenth Amend­

ment___________________ 11, 14, 16, 17, 34, 38, 39, 44, 46
Interstate Commerce Act, Part II, Section 216(d), 49

U.S.C. 316(d)_________________________________ 46,47
Louisiana Act No. 227 of 1934___________________  29
Louisiana Act No. 630 of 1960-----------------------------  38
La. Stats. Ann.—R.S. :

4: 5___________________________________  39
4: 451-455____________    39

13: 917_________________________________  38
14: 63__________________________________  31
14: 63.3 (1960 Supp.)______________________ 32
14: 103_ 11,12,13,20,23,26,27,28,30,33
14: 103.1 (1960 Supp.)_____________________  22
14: 103(7)_______________________________  5,6,8,

12, 13, 18, 20, 21, 22, 27, 28, 30, 33, 35, 36, 38, 44
15: 752_________________________________  38
17: 10__________________________________  39
33: 5066________________________________  39
45: 522-525_____________________________  38
45: 528-532_____________________________  38

Miscellaneous:
McCormick, Evidence, §324 (1954)------------------------ 26
Note, 61 Col. L. Rev. 1103 (1961)------------------------- 46



Jn  tfa jftqjrme Gjmtrt of ih  Uniit& jjintes
Octobee Term, 1961

No. 26
J ohn B urrell Garner, et al., petitioners

v.
State op Louisiana

No. 27
Mart Briscoe, et al., petitioners

v.
State op L ouisiana

No. 28
J annette H oston, et al., petitioners

V .

State op Louisiana

ON W R IT S  OF C E R T IO R A R I  TO T H E  SU PREM E COURT  
OF L O U ISIA N A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinions of the Supreme Court of Louisiana in 
Garner (G. 53x), Briscoe (B. 56), and Hoston (H. 
55-56) and of the Nineteenth Judicial District Court 
of Louisiana in each of these cases (G. 37; B. 38-39; 
H. 38-39) are not officially reported.

1 The records in Garner v. Louisiana, No. 26, Briscoe v. Loui­
siana, No. 27, and Hoston v. Louisiana, No. 28, are referred to 
as “G.”, “B.”, and “H.”, respectively.

(l)



2

JURISDICTION

The judgment of the Supreme Court, of Louisiana 
in Garner was entered on October 5, 1960 (G-. 53), in 
Briscoe, on October 5, 1960 (B. 56), and in Boston, 
on October 5, 1960 (H. 55). The petitions for writs 
of certiorari were granted on March 20, 1961 (365 
U.S. 840; B. 56; B. 62; H. 58). The jurisdiction of 
this Court rests upon 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

Petitioners, who are Negroes, were convicted by a 
Louisiana state court of disturbance of the peace for 
having sat at lunch counters reserved for whites. 
The questions presented and discussed in this brief 
are:

1. Whether petitioners’ convictions violated the due 
process clause of the Fourteenth Amendment because 
they are utterly unsupported by evidence proving 
essential elements of the offense.

2. Whether the due process clause of the Four­
teenth Amendment was violated by petitioners’ con­
viction under a statute which, if applied to these 
circumstances, is so vague and indefinite that it fails 
to give fair notice of the conduct proscribed,

3. Whether, in the circumstances of this case, peti­
tioners’ arrest and conviction violated the equal pro­
tection clause of the Fourteenth Amendment because 
the State was enforcing a government policy of racial 
segregation.

4. Whether in. Briscoe v. Louisiana, No. 27, peti­
tioners’ arrest and conviction deprived them of their 
rights under the Interstate Commerce Act to service



3

on a non-discriminatory basis in a restaurant in a 
bus terminal operated as part of interstate commerce.

Petitioners also raise additional questions which we 
believe this Court need not reach (see infra, pp. 16- 
17) and which we therefore have not discussed in this 
brief:

1. Whether any arrest by state police and convic­
tion by a State court of Negroes who enter and refuse 
to leave private restaurants customarily open to all 
members of the public except Negroes constitutes state 
action violating the equal protection clause of the 
Fourteenth Amendment.

2. Whether any arrest and conviction of Negroes 
who enter and refuse to leave such restaurants de­
prives them of their freedom of expression as pro­
tected by the due process clause of the Fourteenth 
Amendment.

INTEREST OF THE UNITED STATES

These cases involve racial discrimination and denial 
of constitutional rights. While it is unnecessary here 
to reach the constitutional problems common to the 
so-called “sit-ins” generally, the convictions in these 
cases arose in the context of a movement which is 
significant through much of the country. Numerous 
citizens have participated in this movement, and 
many have been arrested and convicted by state 
authorities in circumstances similar to those involved 
in the cases now before the Court. The United 
States is, of course, deeply concerned when many of its 
citizens are arrested and convicted of crime without 
due process of law and in a manner which denies to 
them the equal protection of the laws, as guaranteed by



4

the Fourteenth Amendment. This concern is accentu­
ated. when questions of widespread public interest and 
significance are involved. Beyond that, the govern­
ment believes that it may be able to assist the Court 
by focusing upon issues which are dispositive without 
involving broader and largely uncharted questions 
concerning the meaning of “ State action.” I t  is 
because of these considerations that the United States 
deems it appropriate to participate as amicus curiae.

STATEMENT

Garner v. Louisiana, No. 26.—On March 29, 1960, 
petitioners, two Negro students at Southern Univer­
sity, took seats at the lunch counter in Sitman’s Drug 
Store, Baton Rouge, Louisiana (G. 30). One of the 
petitioners ordered coffee but was advised by the pro­
prietor of the drug store that he could not be served 
(G. 30). Although Negroes may buy other goods in 
the drug section of Sitman’s Drug Store at the same 
counters as whites, there are no facilities for serving 
food to Negro customers (G. 31-32). Within ten 
minutes after petitioners had sat down at the counter 
police officers arrived (G. 30). They were not called 
by the owner of the store or any of his employees, and 
the owner did not know who called the police (G. 30- 
31). Instead, the arresting officers—Major Bauer 
and Captain Weiner—were summoned by the police 
officer on his “beat” near the store because he noticed 
the two Negroes sitting at the lunch counter (G. 34). 
The owner of the store received no complaints from 
customers regarding the presence of the two Negroes



5

at the lunch counter (G. 33), and no other complaint 
was made to the police department (G. 34-35).

When the police officers arrived at the drug store, 
Major Bauer approached the students, told them that 
they were violating the law, and asked them to leave 
(G. 34). One of the students told the officers that he 
had purchased an umbrella in the drug store and did 
not understand why he could not sit at the lunch 
counter (G. 34). When the students did not leave, 
the police placed them under arrest, pursuant to 
L.S.A.-R.S. 14:103(7), for having disturbed the peace, 
and took them to police headquarters (G. 34-35). 
Captain Weiner, one of the arresting officers, ex­
plained the arrests at petitioners’ trial as follows 
(G. 35) :

* * * the law says that this place was re­
served for white people and only white people 
can sit there and that was the reason they were 
arrested.

* * * * *
The fact that they were sitting there and in 

my opinion were disturbing the peace by their 
mere presence of being there I  think was a 
violation of Act 103.

He similarly said that “ [t]he mere presence of these 
negro defendants sitting at this cafe counter seat 
reserved for white folks was violating the law * * *” 
(G. 36).

Informations were filed against petitioners which 
charged that they had violated L.S.A.-R.S. 14:103(7) 
by refusing “ to move from a cafe counter seat at

607645— 61------2



6

Sitman’s Drug Store * * *, after having been ordered 
to do so by the agent of Sitman’s Drug Store * * *” 
(G. I) .2

After the trial, the trial judge rendered an oral 
opinion in which he found petitioners guilty of having 
violated L.S.A.-R.S. 14:103(7) and stated (G. 37):

* * * the evidence put on by the State [was] 
that these two accused were in this place of 
business * * * and they were seated at the 
lunch counter in a bay where food was served 
and they were not served while there, and 
officers were called and after the officers ar­
rived they informed these two accused that they 
would have to leave, and they refused to leave.
* * * The Court is convinced beyond a reason­
able doubt of the guilt of the accused from the 
evidence produced by the State, for the reason 
that in the opinion of the Court, the action 
and conduct of these two defendants on this 
occasion at that time and place was an act done 
in a manner calculated to, and actually did, 
unreasonably disturb and alarm the public.
* * *

Petitioners were convicted and sentenced to impris­
onment for four months, three months of which would 
be suspended upon the payment of a tine of $100.00 
(G. 37-38, 41). Applications for writs of certiorari, 
mandamus, and prohibition were filed in the Supreme 
Court of Louisiana (G. 44-46), but the applications 
were denied on the ground that the court was with­
out jurisdiction to review the facts in criminal eases

2 The informations in all three cases identified each peti­
tioner as “CM,” i.e., colored male, or “CF,” colored female 
(G. 2; B. 2; H. 2).



7

and the rulings of the district judge on matters of 
law were not erroneous (G. 53).

Briscoe v. Louisiana, No. 27.—On March 29, 1960, 
petitioners, seven Negro students at Southern Univer­
sity, took seats at the lunch counter at the restaurant 
in the Baton Rouge Greyhound Bus Terminal (B. 30, 
34). They attempted to order food but were told by 
the waitress that “colored people are supposed to be 
on the other side” and that the “seats where they 
were seated are reserved for white people” (B. 30- 
31). The waitress testified that she had no reason 
for making these statements to petitioners other than 
that they were Negroes (B. 31), and that petitioners, 
besides ordering food, “hadn’t done anything other 
than sit in those seats * * * reserved for whites” 
(B. 32). The only posted sign read “Refuse service 
to anyone” (B. 32). Negroes could be served in an­
other part of the bus station in an area reserved for 
them (B. 30-31, 32, 33-34).

A bus driver who was sitting at a booth near the 
lunch counter telephoned the police “that there were 
several colored people sitting at the lunch counter” 
(B. 33, 34) .3 Captain Weiner, one of the arresting offi­
cers, explained that the police “ were called because 
of the fact that [petitioners] were sitting in a section 
reserved for white people” (B. 35). After the police 
asked petitioners to move and they had refused, pe­
titioners were arrested for disturbing the peace (B.

3 A police officer testified that the desk sergeant was called by 
“some woman at the Greyhound Bus Station” (B. 34). This 
hearsay statement was apparently erroneous since the waitress at 
the restaurant stated unequivocally that one of several bus 
drivers in the restaurant called (B. 33).



8

35). Captain Weiner testified that petitioners were 
arrested because “according to the law, in my opinion, 
they were disturbing the peace.* * * The fact that 
their presence was there in the section reserved for 
white people, I  felt that they were disturbing the 
peace of the community” (B. 36). Captain Weiner 
further emphasized that the basis of the charges 
against petitioners that they were disturbing the 
peace was “the mere presence of their being there” 
(B. 38).

Informations were filed against petitioners which 
charged that they had violated L.S.A.-R.S. 14:103 
(7) by refusing “to move from a cafe coimter seat at 
Greyhound Restaurant after having been ordered to 
do so by the agent of Greyhound Restaurant * * *” 
(B. 1). In his oral opinion, the trial judge found peti­
tioners guilty of having violated L.S.A.-R.S. 14:103 
(7), and stated (B. 38-39) :

* * * it is the decision of the Court that they 
are guilty as charged for the reason that from 
the evidence in this case their actions in sitting 
on stools in this place of business when they 
were requested to leave and they refused to 
leave; the officers were called, the officers re­
quested them to leave and they still refused to 
leave, their actions in that regard in the opin­
ion of the Court was an act on their part as 
would unreasonably disturb and alarm the 
public.

Petitioners received the same sentences as the peti­
tioners in Garner (B. 43-44), and petitioners’ post­
conviction applications in the Louisiana Supreme 
Court were denied for the same reason as in the 
Garner case (B. 46-49, 56).



9

Hoston v. Louisiana, No. 28.—On March 28, 1960, 
petitioners, seven Negro students at Southern Univer­
sity, took seats at the lunch counter at the S. H. Kress 
Company store in Baton Rouge (H. 28-29). They 
were not refused service or asked to move (H. 32- 
33). Rather, they were simply not served and were 
“advised” by a waitress that they could he served at 
another counter in the Kress store where, “by cus­
tom,” Negroes were served (H. 29, 32-34). Except 
for the lunch counter, Negroes and whites may make 
purchases in Kress at all counters (H. 31, 32). There 
are no signs indicating that the lunch counters are 
segregated hut petitioners were expected to have 
known this “ [b]y custom and by noticing that the col­
ored people were being served at the counter across 
the store” (H. 32). Although the students did not 
move, the manager took no immediate action hut con­
tinued eating his lunch at the counter (II. 29-30). 
After finishing his meal, he telephoned “ the police de­
partment that [petitioners] were seated at the counter 
reserved for whites” (H. 30). The manager testified 
at petitioners’ trial that he called the police because 
he “feared that some disturbance might occur” (H. 
30). The manager also testified that the only conduct 
of petitioners he considered to be a disturbance of 
the peace was their presence at the lunch counter 
(H. 33).

The police, after arriving at the store, asked peti­
tioners to leave since “ they were disturbing the peace” 
(H. 36). When petitioners refused, they were ar­
rested, as one of the arresting officers testified, for



10

disturbing the peace “ [b]y sitting there” “because 
that place was reserved for white people” (H. 37).

Informations were filed against petitioners which 
charged that they had violated L.S.A.-R.S. 14:103(7) 
by refusing “to move from a cafe counter seat at 
Kress’ Store * * * after having been ordered to do 
so by the agent of Kress’ Store * * *” (H. 1). The 
trial judge, in his oral opinion, found (H. 39) :

* * * [petitioners] took seats at the lunch 
counter which by custom had been reserved for 
white people only. They were advised by an 
employee of that store, or by the manager, that 
they would be served over at the other counter 
which was reserved for colored people. They 
did not accept that invitation; they remained 
seated at the counter which by custom had been 
reserved for white people. * * * the action of 
these accused on this occasion was a violation 
of Louisiana Revised Statutes, Title 14, Section 
103, Article 7, in that the act in itself, their 
sitting there and refusing to leave when re­
quested to, was an act which foreseeably could 
alarm and disturb the public, and therefore was 
a violation of the Statute that I  have just 
mentioned.

Petitioners were given the same sentences as the 
petitioners in the Garner and Briscoe cases (H. 43- 
44) and petitioners’ post-conviction applications to the 
Louisiana Supreme Court were denied for the same 
reasons as in those cases (H. 46-49, 55-56).



11

SUMMARY OP ARGUMENT

I
Petitioners’ convictions for disturbance of tbe peace 

violate tbe due process clause of the Fourteenth 
Amendment because there was no evidence tending to 
prove essential elements of the only offense charged. 
The informations did not charge the only offense 
which even conceivably was proved.

A. Since there is no evidence tending to support the 
convictions under L.S.A.-R.S. 14:103, the convictions 
violate due process. Thompson v. City of Louisville, 
362 U.S. 199. This statute requires proof of three 
basic elements: (1) The accused must commit an act 
of the kind proscribed; (2) the acts must be done “ in 
such a manner as would foreseeably disturb or alarm 
the public” ; and (3) there must be actual public alarm 
or disturbance.

1. Petitioners clearly did not commit any acts of the 
kind proscribed by Louisiana’s disturbance of the 
peace statute. Earlier decisions of the Louisiana 
Supreme Court make clear that disturbance of the 
peace includes only violent, loud, or boisterous con­
duct. Town of Ponchatoula v. Bates, 173 La. 823, 
138 So. 851 State v. Sanford, 203 La. 961, 14 So. 2d 
778. This construction is supported, and indeed 
virtually compelled, by Section 103 itself, for all its 
specific prohibitions involve such conduct. The rec­
ords in these cases show that petitioners’ acts were



12

completely peaceful; they merely sat quietly at a 
counter normally reserved for whites.

2. There is also no evidence tending to prove that 
petitioners acted “in such a manner as would foresee- 
ably disturb or alarm the public.” This requirement 
is explicitly stated in Section 103 in its introductory 
language applicable to all seven subdivisions. Peti­
tioners, however, acted peacefully; the restaurant em­
ployees merely refused to serve them and indicated 
that petitioners were sitting at counters reserved for 
whites. There was nothing in the reaction of these 
employees or of customers or bystanders even sug­
gesting that petitioners’ presence would cause a dis­
turbance. And the police arrested petitioners, not 
because of the likelihood of a disturbance, but for the 
sole reason that they were sitting in the wrong place. 
The only possible basis for the trial court’s findings 
of a foreseeable disturbance is judicial notice, but 
courts do not take judicial notice of debatable facts, 
particularly when, as here, they are contradicted by 
the evidence.

3. There is not the slightest evidence that peti­
tioners’ conduct in fact disturbed or alarmed the 
public. Subsection 7 of the statute, under which peti­
tioners were convicted, is a loose, catch-all provision 
prohibiting acts committed “in such a manner as to 
unreasonably disturb or alarm the public.” Thus, 
subsection 7 requires proof of actual alarm or dis­
turbance caused by petitioners’ acts. Any other 
interpretation would render this language redundant 
with the requirement which applies to all of Sec­
tion 103—that the conduct forseeably alarm or



13

disturb the public. And, furthermore, the history of 
Section 103 strongly indicates that subsection 7 was 
intended to be confined to actual disturbances.

B. I f  the evidence in these cases proves any offense, 
it is an offense which the informations did not charge. 
The real thrust of the prosecutions—as both the infor­
mations and oral opinions show—is an effort to 
punish petitioners for criminal trespass. The Louisi­
ana Supreme Court has held that Louisiana’s criminal 
trespass law applies to persons who enter land law­
fully, but refuse to leave when ordered to do so by 
the proprietor. State v. Martin, 199 La. 39, 5 So. 2d 
377. Here, however, there is no evidence that peti­
tioners were asked to leave. But, in any event, peti­
tioners were charged only with disturbing the peace, 
not trespass. And this Court has held that it violates 
due process to convict a defendant of a crime with 
which he was not charged. Cole v. Arkansas, 333

The statute under which petitioners were convicted 
is, if applied to petitioners, so vague and uncertain 
as to violate due process.

Due process requires that a State statute give fair 
notice of what conduct is criminal. This requirement 
should be construed with particular strictness in a 
case involving, at the least, the possibility that the 
State is using the statute to promote racial discrim­
ination. The Louisiana disturbance of the peace 
statute—particularly as interpreted by the Louisiana 
Supreme Court to apply only to non-peaeeful con-

607645— 61— 3



14

duct (State v. Sanford, supra)—does not give the 
slightest indication that it applies to sitting quietly at 
a lunch counter which is reserved for persons of an­
other race where there is no disturbance nor reason to 
foresee a disturbance. I f  the statute applies to these 
facts, it can be used to convict anyone for any conduct 
that local officials, acting ad hoc, find distasteful.

I l l

Petitioners’ arrest and conviction were the result 
of State, not privately, imposed racial discrimination 
and therefore violate the equal protection clause of 
the Fourteenth Amendment. The State was not 
merely allowing a private person to carry out private 
discrimination on his own property or even enforcing 
such discrimination. Acting through local police and 
judicial authority, the State was imposing a policy 
of its own.

A. The records show that petitioners were arrested 
because of their mere presence at the lunch counters. 
The police made the arrests not on the request of the 
managers or employees of the lunch counters but 
merely because petitioners were Negroes sitting in 
areas normally reserved for whites.

B. Petitioners’ convictions were also based on their 
race. The only grounds on which the trial court 
could have found three essential elements of the of­
fense are judicial notice or a ruling that the presence 
or absence of these elements constituted a question of 
law. Thus, the trial court must have determined that 
public alarm or disturbance was foreseeable, that such 
alarm or disturbance actually occurred, and that peti­



15

tioners’ acts were unreasonable, by concluding that 
those elements are automatically satisfied whenever 
there is racial integration in public places.

C. This Court has made clear that, if a State statute 
which is nondiscriminatory on its face is applied in a 
discriminatory way, this constitutes a violation of 
the Fourteenth Amendment, Yick Wo v. Hopkins, 
118 U.S. 356. Such unconstitutional discrimination of 
course occurs whenever enforcement of the law is 
based on race. State action which promotes a State 
policy of segregation and therefore violates rights 
protected by the Constitution cannot be saved by using 
the label “disturbance of the peace.”

IV

In  Briscoe v. Louisiana, petitioners’ arrest and con­
viction violated their rights under the Interstate 
Commerce Act.

A. In Boynton v. Virginia, 364 U.S. 454, 463-464, 
the Court held that the Act forbids racial discrimina­
tion against interstate passengers in restaurants oper­
ated “ as an integral part of the bus carrier’s transpor­
tation service for interstate passengers.” Although 
petitioners were not interstate passengers, the Act for­
bids interstate carriers to discriminate against “ any 
particular person.” The record shows that the lunch 
counter in Briscoe was located in the Greyhound Res­
taurant in the Greyhound bus terminal. I t  can fairly 
be inferred, in the absence of any contrary evidence, 
that the lunch counter is operated as an integral part 
of interstate commerce.



16

B. Although petitioners have not presented this 
issue either to this Court or the Louisiana courts, the 
Court can properly consider it. If  the Briscoe case 
cannot be decided, contrary to our contentions, on the 
basis of the same constitutional issue as the other 
two instant cases, consideration of this statutory 
issue would relieve the Court from considering further 
constitutional questions. I t  is of course a basic prin­
ciple that the Court refuses to adjudicate constitu­
tional issues unless such an adjudication is absolutely 
necessary to the decision. The parties cannot minify 
this principle simply by failing to raise the statutory 
issue. See United States v. C.I.O., 335 U.S. 106, 110.

ARGUMENT

Petitioners, who are Negroes, were arrested by 
state officers and convicted by State courts of having 
disturbed the peace by entering and remaining at 
lunch counters that are reserved for whites. Peti­
tioners argue that (1) the State was enforcing a cus­
tom of private racial discrimination in restaurants, 
which constitutes state action in violation of the equal 
protection clause of the Fourteenth Amendment (see 
Pet. Br. 18-24), and (2) the State was interfering 
with freedom of expression in places open to the pub­
lic in violation of the due process clause of the 
Fourteenth Amendment (cf. Marsh v. Alabama, 326 
U.S. 501) (see Pet. Br. 36-38). These issues are of 
great national importance, since if petitioners were 
successful in either their two principal contentions, 
this would probably be decisive of most of the numer­



17

ous “sit-in” cases now pending in State courts (see, 
e.g., Pet. in Garner, p. 28). Thus, resolution of these 
issues might have important effect on the “sit-in” 
movement which has reached considerable importance 
virtually throughout the country. On the other hand, 
these contentions raise broad and, we believe, difficult 
constitutional problems.

In our view all of petitioners’ convictions are in­
valid on three narrower grounds: (1) the State failed 
to present any evidence whatsoever to support essen­
tial elements of the offenses as defined by State law 
in violation of the due process clause of the Four­
teenth Amendment (see infra, pp. 18-33) ; (2) the 
Louisiana statute under which petitioners were con­
victed was so vague and uncertain, as applied to the 
facts of these cases, as to violate the due process 
clause of the Fourteenth Amendment (see infra, 
pp. 33-38) ; and (3) the State, in these particular 
cases, was itself imposing racial discrimination, not 
merely enforcing a private landowner’s decision, in 
violation of the equal protection clause of the Four­
teenth Amendment (see infra, pp. 38-46).4 Although 
the issues raised by these propositions are constitu­
tional, they are not only narrower but also, we 
believe, more easily resolved than the other constitu­
tional issues raised by petitioners. Accordingly we 
do not discuss the broader questions.

4 In  addition, we believe that the convictions in Briscoe are 
invalid because they violate the Interstate Commerce Act (see 
infra, pp. 46-51).



18

I
THE CONVICTIONS VIOLATE THE DUE PROCESS CLAUSE 

OF THE FOURTEENTH AMENDMENT BECAUSE THERE 
WAS NO EVIDENCE TENDING TO PROVE ESSENTIAL ELE­
MENTS OF THE ONLY OFFENSE CHARGED AND NO 
CHARGE OF ANY OFFENSE PROVED

A. TH ER E WAS NO EVIDENCE TEN D IN G  TO PROVE T H A T  PETITIO N ERS 
VIOLATED L .S .A .-R .S . 1 4 : 1 0 3 ( 7 )  AS CHARGED IN  T H E  IN FO R ­

MATIONS.

In Thompson v. City of Louisville, 362 U.S. 199, 
204, 206, this Court held that a conviction in a 
State court must be set aside under the Fourteenth 
Amendment “ if there is no support for these convic­
tions,” or “ [t]he record is entirely lacking in evidence 
to support any of the charges,” or is “without evi­
dence of his guilt.” Cf. Konigsberg v. State Bar, 353 
U.S. 252; Schivare v. Board of Bar Examiners, 353 
IT.S. 232; United States ex rel. Vajtauer v. Commis­
sioner of Immigration, 273 U.S. 103, 106. The deci­
sion does not mean that a federal court may reverse a 
State conviction merely because, upon re-evaluating 
the record, it finds that the evidence is insufficient to 
support the conviction. The conviction violates due 
process, however, if there is no evidence at all tend­
ing to prove one or more of the essential elements 
of the offense.

The arrest, arraignment, and conviction of each 
of the petitioners were specifically based upon sub­
section 7 of the Louisiana statute punishing dis­
turbance of the peace. L.S.A.-R.S. 14:103(7). The 
statute provides:

Disturbing the peace is the doing of any of 
the following in such a manner as would fore- 
seeably disturb or alarm the public:



19

(1) Engaging in a fistic encounter; or
(2) Using of any unnecessarily loud, offen­

sive, or insulting language; or
(3) Appearing in an intoxicated condition; 

or
(4) Engaging in any act in a violent and 

tumultuous manner by any three or more per­
sons; or

(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of 

people; or
(7) Commission of any other act in such a 

manner as to unreasonably disturb or alarm 
the public.

To support a conviction under this statute there must, 
as we shall show below, be proof of three basic ele­
ments of the offense:

(1) The accused must commit an act of the 
kind proscribed by the statute;

(2) The acts must be done “in such a manner 
as would foreseeably disturb or alarm the 
public” ;

(3) If  the charge is under subdivision 
7, there must be actual public alarm or 
disturbance.

The cases come here upon the evidence taken and 
the findings made in the trial court, for the Supreme 
Court of Louisiana refused to review the evidence 
upon the ground that it was “ without jurisdiction to 
review facts in criminal cases” (Gr. 53; B. 56; H. 56). 
In none of the three cases was there any evidence to 
prove any of the three indispensible elements of the 
offense defined by the statute. In some instances the 
trial court did not even make a finding upon an essen­



20

tial element. Therefore, the convictions should be 
set aside upon the authority of Thompson v. City of 
Louisville.

1. Petitioners did not commit any acts of the kind 
proscribed by L.S.A.-R.S. 14:103

L.S.A.-R.S. 14:103 proscribes six specific acts 
which constitute a breach of the peace when done in 
a manner which would foreseeably disturb or alarm 
the public. Subsection 7 then forbids “ [commission 
of any other act in such a manner as to unreasonably 
disturb or alarm the public.” Admittedly, petitioners 
engaged in none of the conduct described in the first 
six subsections. They were charged specifically with 
violation of subsection 7, an earlier version of 
which the Supreme Court of Louisiana aptly described 
as “ the general portion of the statute which does not 
define the ‘conduct or acts’ the members of the Legis­
lature had in mind” (State v. Sanford, 203 La. 961, 
967, 14 So. 2d 778).

The State decisions giving content to the general 
words make it plain that subsection 7 does not 
embrace peaceful conduct such as that of peti­
tioners. In Town of Ponchatoula v. Bates, 173 La. 
823, 138 So. 851, the Louisiana Supreme Court held 
under an ordinance simply prohibiting disturbance of 
peace that a disturbance of the peace is “any act or 
conduct of a person which molests the inhabitants in 
the enjoyment of that peace and quiet to which they 
are entitled, or which throws into confusion things set­
tled, or which causes excitement, unrest, disquietude, 
or fear among persons of ordinary normal tempera­



21

ment.” (173 La. at 828). A challenge to rooted cus­
toms may cause intellectual unrest or emotional 
excitement, but it is plain that the court’s definition 
of a breach of the peace uses these words to encom­
pass only conduct which is violent, loud, or boister­
ous, or which is provocative in the sense that it 
induces a physical disturbance such as fighting, riot 
or tumult, or which arouses the fear of these dis­
turbances among persons of normal temperament. A 
later decision makes this plain. In State v. Sanford, 
203 La. 961, 14 So. 2d 778, the evidence showed that 
thirty Jehovah’s Witnesses approached a Louisiana 
town for the purpose of distributing religious tracts 
and persuading the public to make contributions to 
their cause. The Witnesses were warned by the 
Mayor and police officers that “ their presence and 
activities would cause trouble among the population 
and asked them to stay away from the town 
* * *” (203 La at 964). The trial court found 
that the Witnesses entering the town and stopping 
passers-by in the crowded main street under these 
circumstances “ might or would tend to incite rioting 
and disorderly conduct” {id. at 965). The Supreme 
Court of Louisiana set aside convictions for breach 
of the peace, thus holding in effect that the defend­
ants were not pursuing a “disorderly course of 
conduct which would tend to disturb the peace.” Al­
though the language of the statute was subsequently 
altered, there is nothing in the change or in subse­
quent court decisions to throw doubt upon this ruling.

Indeed, the conclusion that L.S.A.-R.S. 14:103(7) 
does not reach peaceful and orderly conduct is virtu-

607645— 61------ 4



22

ally compelled by reading the statute as a whole. The 
first six subsections deal with violence or loud 
boisterous conduct. The only possible exceptions 
are (i) the use of insulting language, which in this 
context plainly refers to insults calculated to provoke 
violence, and (ii) the holding of an unlawful as­
sembly, which is also likely to result in the outbreak 
of violence. The catch-all language in subsection 7 
would normally be interpreted in the light of the pre­
ceding subsections as an effort to cover other forms 
of violence or loud and boisterous conduct not already 
listed.

I t is also apparent that the Louisiana legislature 
doubted whether L.S.A.-R.S. 14:103(7) covered peti­
tioners’ acts. Immediately after the events for which 
petitioners are being prosecuted, the legislature re­
wrote the statute and added a definition of acts which 
may cover the present case (L.S.A.-R.S. 14:103.1 
(1960 Supp.)) :

A. Whoever with intent to provoke a breach 
of the peace, or under circumstances such that 
a breach of the peace may be occasioned 
thereby:

* * * * *
(4) refuses to leave the premises of another 

when requested so to do by any owner, lessee, 
or any employee thereof, shall be guilty of 
disturbing the peace.

The contrast between this language and the statute 
under which petitioners were accused confirms the 
interpretation flowing from the judicial precedents 
and the natural meaning of the words.



23

In  these cases, there can be no doubt that petition­
ers’ acts were peaceful. They merely sat down 
quietly at counters reserved for whites. Such conduct 
is clearly not of the kind proscribed in Lousiana as 
disturbance of the peace.

2. There was no evidence tending to prove that peti­
tioners acted “in such a manner as would foresee- 
ably disturb or alarm the public”

Even if petitioners committed acts of the kind em­
braced by the statute, they could not be convicted with­
out proof that the acts were done, “in such a manner 
as would foreseeably disturb or alarm the public.” 
L.S.A.-R.S. 14:103 sets out this element of the offense 
in the introductory language applicable to all seven 
divisions.

Although the trial court found that petitioners’ 
conduct was calculated to alarm and disturb the pub­
lic (G*. 37; B. 39; H. 39), there was an absolute lack 
of evidence to support the finding. Petitioners sat 
down quietly at a lunch counter normally reserved for 
whites. In  Garner they were told that they could not 
be served because they were Negroes, but they were 
not even asked to move. They remained there quietly 
until ten minutes later when the police arrested them 
(Gr. 30-32). In Briscoe, the waitress told them that 
“colored people are supposed to be on the other side,” 
and declined to serve them (B. 30-31). They re­
mained quietly in their seats until they were arrested 
upon the arrival of the police. In Host on they were 
told by the waitress that they could be served at an­
other counter. They were not asked to leave and



24

stayed where they were until once again the police 
made the arrests (H. 29, 32-34). There was nothing 
in this conduct, which could conceivably “disturb or 
alarm the public.”

Admittedly, petitioners did not engage in violence 
or any other loud or tumultuous conduct. There is 
nothing in sitting quietly at a lunch counter, even 
though one knows that he may not be welcome, which 
can be said by its very nature to give him warning 
of public alarm. Petitioners made no speeches. They 
did not even speak to anyone except to order food. 
They carried no placards, and did nothing, beyond 
their presence, to attract attention to themselves or 
others.

There is nothing in the reaction of the manager or 
waitresses or in the conduct of customers or bystand­
ers to suggest that petitioners’ presence would cause 
a public disturbance. Negroes were welcome in all 
three establishments. The arresting officers testified 
that petitioners’ sole offense was that they, being 
Negroes, sat in a section reserved for whites ((4. 35- 
36; B. 35-36; H. 37). In the Garner ease neither the 
owner of the drug store nor any bystanders thought it 
necessary to call the police. The arrests were made 
because a policeman near the store saw that Negroes 
were sitting at the white lunch counter. (Gk 30-31, 
34). He gave no testimony of an actual disturbance 
nor did he say that there was a reason for fearing a 
breach of the peace. In Briscoe, the waitress testi­
fied that petitioners “ hadn’t done anything other than 
sit in these seats * * * reserved for whites” (B. 32). 
In Hoston the manager did testify that he “ feared



25

that some disturbance might occur” (H. 30), but he 
was so little concerned that he continued to sit at the 
same lunch counter eating his lunch and waited until 
he was finished to call the police. The manager also 
acknowledged that the only conduct which he con­
sidered disturbing was the petitioners’ mere presence 
at the counter (H. 29-30, 33). He gave no reasons for 
his concern and did not say what he meant by a “ dis­
turbance. ” Under these circumstances, the manager’s 
general statement gives “ no support” for the convic­
tions, within the meaning of Thompson v. City of 
Louisville, supra (see 362 U.S. at 204).

The police gave no evidence that a public disturb­
ance was to be anticipated. In Garner, Captain 
Weiner, one of the arresting officers, explained that 
he made the arrests because “the law says that this 
place was reserved for white people” (G-. 35). In 
Briscoe, Captain Weiner said that, “The fact their 
presence was there in the section reserved for white 
people, I  felt that they were disturbing the peace of 
the community” (B. 36). Captain Weiner’s testimony 
in Boston was substantially the same (see H. 36-37). 
Not a single police officer said a word which even 
remotely implies that fighting, loud words, or any 
other disorder seemed likely to occur.

I t  may be argued that the finding that disturbances 
were a foreseeable result of the mere presence of 
Negroes at the lunch counter was based on judicial 
notice derived from general knowledge of the com­
munity—perhaps coupled, as the State suggests, with 
newspaper stories which are not in the record (Brief 
in Opp., pp. 11-12). But courts can take judicial



26

notice, especially in criminal cases, only of obvious 
and incontrovertible facts. Ohio Bell Telephone Go. 
v. Public Utilities Commission, 301 U.S. 292, 301; 
United States v. Shaughnessy, 234 F. 2d 715, 718 
(C.A. 2); McCormick, Evidence, §324 (1954). Cer­
tainly, it is neither obvious nor incontrovertible, in 
the present day, that a disturbance may occur merely 
because Negroes sit peacefully at a lunch counter 
theretofore reserved for whites. All the facts pre­
sented in these cases indicated that no disturbance 
would occur. The constitutional requirement that a 
State introduce some evidence of each of the essential 
elements of a criminal offense before conviction can­
not be cast aside through judicial assumptions which 
are dubious at best and are also contradicted by the 
evidence in the record.

Of course, it is plain that petitioners’ conduct was 
likely to disturb the sensibilities of those members of 
the public who hoped for the preservation of racial 
segregation in restaurants and at lunch counters. 
I t  would arouse resentment among the prejudiced. 
But the decision in State v. Sanford, supra (203 La. 
961, 14 So. 2d 778), makes it clear that L.S.A.-R.S. 
14:103 does not reach conduct which merely disturbs 
or alarms members of the public in this sense of the 
words.

As stated above, the Jehovah’s Witnesses whose 
convictions were reversed in State v. Sanford had been 
warned by the Mayor and police officers that “their 
presence and activities would cause trouble among the 
population and asked * * * to stay away from the 
town * * *” (203 La. at 964); and the trial court



27

found that the Witnesses entering the town and 
stopping passersby in the crowded main street under 
these circumstances “ might or would tend to incite 
rioting and disorderly conduct” (id. at 965). The 
Supreme Court of Louisiana held that, as a matter of 
law, this was not “ disorderly course of conduct which 
would tend to disturb the peace.” (id. at 970).

3. There was no evidence tending to prove that peti­
tioners’ conduct disturbed or alarmed the public

In the Briscoe and Boston cases there was neither 
evidence nor a finding that petitioners had caused a 
disturbance. In the Garner case the trial court made 
such a finding (G-. 37), but there is not a scintilla of 
evidence to support it. There was no fighting, no 
pushing or shoving, no argument nor even loud talk; 
there were no speeches nor the congregation of an un­
usual number of people. I t  was not even shown that 
the presence of petitioners attracted public attention. 
If, as we believe, the actual disturbance of some part 
of the public is a third essential element of the offense 
defined by L.S.A.-R.S. 14:103(7), then the con­
victions must be invalidated for an absolute lack of 
evidence.

Under the first six subsections of L.S.A.-R.S. 
14:103, which proscribe specific acts, proof of an actual 
disturbance is not required. The seventh subsection 
is a loose catch-all of undefined conduct except as 
limited by implication, and it would therefore be 
natural to confine its generality by adding other 
indicia of misconduct. The language alone is enough 
to show that this was done by adding the requirement



28

that the “acts/’ whatever they might be, be done “in 
such a manner as to unreasonably disturb or alarm 
the public.” The rest of L.S.A.-R.S. 14:103 shows 
that these words refer, not to tendency of the acts, but 
to their actual consequences.

Thus the opening sentence provides that “ [d isturb­
ing the peace is the doing of any of the following in 
such a manner as would foreseeably disturb or alarm 
the public * * *” (emphasis added). I f  subsection 7 
is construed to cover any act likely to disturb or 
alarm, it simply repeats the opening sentence. I t  
would certainly be unusual, to say the least, for the 
legislature to write a statute which prohibits acts 
which probably will disturb or alarm the public when 
done “in such a manner as would foreseeably disturb 
or alarm the public * * If  this were the intent, 
the redundancy could easily have been avoided by 
stating that “ [disturbing the peace is the doing of 
any act in such a manner as would foreseeably disturb 
or alarm the public including * * and then setting 
out the first six subsections of Section 103. The addi­
tion of subsection 7 shows that actually causing dis­
turbance or alarm was intended to be an element of 
the crime.

Our construction is reinforced by the history of 
Louisiana’s legislation punishing disturbance of the 
peace. Prior to 1942, the statute specifically pro­
hibited only loud or obscene language, exposing one’s 
person, or using a deadly weapon in a public place, 
and then provided in a catch-all section that “any per­
son * * * who shall do any other act, in a manner cal­
culated to disturb or alarm the inhabitants * * * or



29

persons present” would be guilty of a misdemeanor, 
Act No. 227 of 1934. In 1942, the statute was changed 
to its present form, which eliminates the last two spe­
cific prohibitions mentioned above but adds five other 
specific prohibitions. Further, the present act re­
quires proof that even acts within the specific prohibi­
tions will foreseeably disturb or alarm the public—a 
requirement which the 1934 act applied only to the 
catch-all provision. The language in the catch-all 
provision itself has been significantly changed from 
prohibiting “ any other act, in a manner calcu­
lated to disturb or alarm the inhabitants * * *” to 
prohibiting “ [commission of any other act in such a 
manner as to unreasonably disturb or alarm the 
public.” I t  thus appears that the Louisiana legisla­
ture in 1942 decided to spell out in more specific pro­
hibitions acts which were previously covered in the 
catch-all provision. Having specifically prohibited 
the disturbances of the peace with which it was 
primarily concerned, the catch-all provision was 
limited, probably for the reason suggested above, so 
as to cover only actual disturbances.

Moreover, immediately after the events involved in 
these eases, the Louisiana legislature passed a disturb­
ance of the peace statute which has significantly 
different language than the statute involved in this 
case. That statute (quoted supra, p. 22) clearly 
requires proof that a disturbance was at most foresee­
able or likely. The language used in Section 103 is 
in marked contrast.



30

Barring any inferences which, can be drawn from 
the decision below, there are no Louisiana cases upon 
this question. The decision below gives no guidance 
because there is no opinion, and the court refused to 
examine the evidence (GK 53; B. 56; H. 56). Under 
these circumstances this Court should adopt the inter­
pretation which is supported by analysis of the lan­
guage and history of act and hold that a conviction 
under subsection 7 requires actual alarm or dis­
turbance. Since there was no evidence of this ele­
ment of the crime, it furnishes an additional reason 
for voiding the convictions.

B. IF  T H E  EVIDENCE TENDS TO PROVE A N Y  O FFENSE, IT  IS AN

OFFENSE NOT CHARGED. CONVICTION FOR SUCH A N  OFFENSE

WOULD VIOLATE T H E  FO U RTEEN TH  A M EN D M EN T

It seems apparent that the real thrust of the pros­
ecutions was an effort to convict petitioners of crim­
inal trespass, or perhaps to punish them for seeking, 
in violation of State pol icy, to eat at lunch counters 
previously reserved for whites. To impose sentence 
upon either ground when the information alleged 
disturbing the peace would violate the Fourteenth 
Amendment as a conviction upon a charge not made. 
Cole v. Arkansas, 333 U.S. 196. To stretch L.S.A.- 
R.S. 14:103, which proscribes breach of the peace, so 
as to cover either of these offenses, even if proper as 
a matter of State law, is to render it void under the 
federal Constitution as a vague and indefinite crim­
inal statute which gives no notice of the offense. See 
Point II, pp. 33-38, infra. And of course, a conviction



31

for violating a State-imposed policy of segregation in 
public restaurants would be invalid as a denial of 
equal protection of the law. See Point III, pp. 38- 
46), infra.

The record contains some elements of a criminal 
trespass under many State laws, but it seems doubt­
ful whether the Louisiana trespass statute is appli­
cable. The closest provision was L.S.A.-R.S. 14: 63 
which prohibits “ [t]he unauthorized and intentional 
entry upon any: (a) enclosed and posted plot of 
ground; or * * * (e) structure * * *.” In these 
cases, however, petitioners ’ initial entry into the struc­
ture was authorized since the business invited the 
trade of Negroes and therefore authorized them to 
enter. While petitioners were not authorized to enter 
the portions of the structure reserved for whites, the 
statute apparently prohibits entry into a portion of a 
structure only if it is enclosed and posted. None of 
the lunch counters involved in these cases was en­
closed and posted. I t does not help the State’s case 
to point out that, despite its language, the Louisiana 
Supreme Court has held that the statute applies to 
persons who enter land lawfully, but refuse to leave 
when ordered to do so by the proprietor. State v. 
Martin, 199 La. 39, 5 So. 2d 377 (1941). In the 
Garner and Most on cases, the owner did not ask peti­
tioners to leave the premises or even to move from 
the counter (Gr. 30-33; H. 32-33). In the Briscoe 
case, petitioners were merely told by a waitress that 
they were seated at a counter reserved for whites 
and would have to go to another counter to be served



32

(B. 30-33).3 In this case, unlike Stale v. Martin, 
there was no evidence that the proprietor or his agent 
unequivocally requested any petitioner to leave the 
premises.5 6

5 In  all three cases, the informations alleged that peti­
tioners refused to leave after being ordered to do so by an 
agent of the owner (G. 1; B. 1; IX. 1). As to the findings, 
the trial court stated in Garner only that the police asked 
petitioners to leave just before they were arrested (G. 37); in 
Briscoe that they were asked to leave (by whom is not 
stated) before the police arrived (B. 38-39) ; in Hoston that 
an employee of the store or the manager advised them “that 
they would be served over at the other counter” and that they 
refused to leave when requested (H. 39).

The evidence at trial, liow'ever, shows in Gamer that 
petitioners were advised that they could not be served, but 
they were never asked by the proprietor or any employee to 
leave (G. 30); in Briscoe, although the prosecutor’s leading 
questions assume that petitioners were asked to move (B. 31), 
the witness’s testimony directly on this subject was that peti­
tioners were told only that “colored people are supposed to be 
on the other side” and that the “seats where they were seated 
are reserved for white people” (B. 30-31); and in Hoston 
the petitioners were not served and were “advised” by a wait­
ress that they could be served at another counter (PI. 29, 32- 
33, 34), but the testimony is explicit that they were never 
refused service or asked to move (H. 32-33).

6 Apparently the Louisiana legislature believed that the crim­
inal trespass statute in force during these events did not cover 
“sit-ins.” In  1960 the legislature passed a new criminal tres­
pass statute which reads (L.S.A.-B..S. 14:63.3 (1960 Supp.)):

“No person shall without authority of law go into or upon 
or remain in or upon any structure * * * which belongs to an­
other * * * after having been forbidden to do so * * * by any 
owner, lessee, or custodian of the property or by any other 
authorized person. * * *”
This measure was enacted and approved by the Governor, as 
an emergency measure on June 22, 1960, immediately subse­
quent to the incidents involved in these cases.



33

We refer to the criminal trespass statute chiefly 
to suggest some explanation of why the prosecutor 
attempted, without evidence, to convict petitioners 
of disturbing the peace. As a matter of law it 
is immaterial whether the evidence made out a crim­
inal trespass. Petitioners were charged specifically 
with disturbing the peace in violation of L.S.A.- 
R.S. 14:103(7). Under the law of Louisiana and 
the United States Constitution, therefore, petitioners 
could not be lawfully convicted of some different 
offense. State v. Morgan, 204 La. 499, 15 So. 2d 
866 (1943); Cole v. Arkansas, supra. Moreover, dis­
turbing the peace was the only issue at trial. As this 
Court held in Cole v. Arkansas (333 U.S. at 201), 
“ I t  is as much a violation of due process to send 
an accused to prison following conviction of a charge 
on which he was never tried as it would be to 
convict him upon a charge that was never made.”

I I
THE STATUTE UNDER W H ICH  PETITIONERS WERE CON­

VICTED IS, IE APPLIED TO PETITIONERS, SO VAGUE AND 
UNCERTAIN AS TO VIOLATE DUE PROCESS

Since the Louisiana courts have final authority to 
interpret State legislation, it might have been permis­
sible, as a matter of State law, for Louisiana to disre­
gard the language of L.S.A.-R.S. 14:103 and its own 
prior decisions and reinterpret the statute to punish 
petitioners’ peaceful conduct. If  that be the signifi­
cance of the decision below, there may be evidence to 
support the judgments, but the convictions fall upon 
another constitutional ground—the statute becomes 
so vague and indefinite that its enforcement denies



34

due process of law in violation of the Fourteenth 
Amendment.
A. DUE PROCESS REQUIRES T H A T  A STATE STATUTE GIVE PA IR 

NOTICE OE W H A T  CONDUCT IS  C R IM IN A L

This Court has repeatedly held that a State statute 
violates the due process clause of the Fourteenth 
Amendment if it fails (i) to give fair notice of what 
acts it encompasses and (ii) to provide the trier with 
a sufficiently definite standard of guilt to avoid con­
viction on an ad hoc basis.7 8 E.g., Lanzetta v. New 
Jersey, 306 U.S. 451; Connolly v. General Construc­
tion C o 269 U.S. 385; Musser v. Utah, 333 U.S. 95, 
97; Winters v. New York, 333 U.S. 507, 519. As this 
Court observed in Connolly (269 U.S. at 391):

* * * a statute which either forbids or requires 
the doing of an act in terms so vague that men 
of common intelligence must necessarily guess 
at its meaning and differ as to its application, 
violates the first essential of due process of law.

Similarly, in Lanzetta, the Court defined the fair 
notice required by due process as (306 U.S. at 453) :

* * * Uo one may be required at peril of 
life, liberty or property to speculate as to the 
meaning of penal statutes. All are entitled to 
be informed as to what the state commands or 
forbids. * * * s

7 I t  is possible that the requirement of clarity with respect 
to fair notice to defendants is not exactly equivalent to the 
requirement with respect to guidance for the State courts, be­
cause it may be assumed that the State judges are more com­
petent to interpret a statute than are prospective defendants.

8 Nash v. United States, 229 U.S. 373, is not to the contrary. 
There, Mr. Justice Holmes said that “* * * the law is full of 
instances where a man’s fate depends on his estimating rightly,



35

Thus, when a statute gives a defendant insufficient 
notice of the conduct prohibited, his conviction is 
invalid.

B. SECTION 1 0 3 ( 7 )  DID NOT GIVE FAIR NOTICE TO PETITIONERS 

TH A T T H E IR  ACTIONS WERE ILLEGAL

Section 103(7) has on its face several ambiguities. 
I t is not entirely clear whether the prosecution must 
show an actual disturbance of the peace or only that 
such a disturbance is foreseeable (see supra, pp. 
27-28); or whether subsection 103(7) prohibits un­
reasonable acts which cause a disturbance of the peace 
or acts which cause the public to act unreasonably. 
Furthermore, the meaning of “ unreasonably” is not 
defined. Despite these difficulties, we assume argu­
endo that the statute is constitutional if it is con­
strued as we have suggested, i.e., if it applies only to 
the acts specifically listed and other similar violent, 
loud, or boisterous conduct of the kind generally 
known to disturb the public order. I t was only upon 
this reading that the Louisiana Supreme Court sus­
tained the constitutionality of earlier but similar 
legislation. State v. Sanford, supra, 203 La. 961, 14 
So. 2d 778.

The instant cases, however, do not involve an ordi­
nary disturbance of the peace. First, all three cases 
involve racial discrimination. In  our view, the facts
that is, as the jury subsequently estimates it, some matter of 
degree” (id. at 377). But this statement only illuminates the 
undisputed fact that “ ‘the Constitution does not require impos­
sible standards’; all that is required is that the language ‘con­
veys sufficiently definite warning as to the proscribed conduct 
when measured by common understanding and practices
* * * ” Roth v. United States, 354 U.S. 476, 491.



36

clearly show that the State was itself promoting its 
own policy of racial discrimination (see infra, pp. 
38-46), but even if this contention is not accepted, 
petitioners’ arrest and conviction at the least have the 
effect of promoting private racial discrimination. In 
such circumstances, we submit that this Court should 
apply a strict standard in determining whether a 
statute is unconstitutionally vague. For a vague 
statute provides all too easy means by which a State 
can impose ad hoc criminal penalties in order to pro­
mote racial discrimination. Winters v. New York, 
333 U.S. 507, 509-510, 517, indicates that the degree 
of certainty required for due process is particularly 
strict in the delicate area of freedom of expression; 
otherwise, the Court said, expression which is con­
stitutionally protected would be effectively prohibited 
by the very vagueness of the law. See also Smith v. 
California, 361 U.S. 147, 151.. Similar considerations 
call for a strict standard of constitutional certainty in 
any statute applied to support racial discrimination.

Second, there is not a word in L.S.A.-R.S. 14:103 
which suggests that it prohibits sitting quietly at a 
lunch counter, in a store into which one has been 
invited by the proprietor, and asking for service 
despite the proprietor’s previous policy of racial 
segregation. Nor is there any warning that staying 
there peacefully after service has been refused be­
comes criminal. Petitioners’ conduct caused no dis­
turbance ; there was no reason to foresee a disturbance. 
I f  the statute applies to these facts, it can be used 
to convict anyone for any conduct that the local 
officials, acting ad hoc, find distasteful.



37

Interpretation of a State statute prior to the de­
fendant’s conduct may sometimes clarify otherwise 
indefinite language sufficiently to satisfy the require­
ments of fair notice. See e.g., Chaplinsky v. New 
Hampshire, 315 U.S. 568, 574; International Harvester 
Go. v. Kentucky, 234 U.S. 216. Here, however, the 
latest decision of the Louisiana Supreme Court on this 
subject interpreted the predecessor disturbance-of-the- 
peace statute (one which, unlike the statute involved 
in this case, clearly did not require proof of an 
actual disturbance (see supra, pp. 28-29)) so as not 
to apply to peaceful activities. State v. Sanford, 
supra. The Louisiana court interpreted the statute in 
this manner partially because (203 La. at 970) :

* * * to construe and apply the statute in the 
way the district judge did would seriously in­
volve its validity under our State Constitution, 
because it is well-settled that no act or conduct 
however reprehensible, is a crime in Louisiana, 
unless it is defined and made a crime clearly 
and unmistakably by statute.9 * * *

9 The Louisiana Supreme Court has repeatedly recognized that 
under its own constitution fair notice is an element of due 
process. See, e.g., State v. Christine, 239 La. 259, 118 So. 2d 
403 (1960) ; State v. Sanford, supra; State v. K raft, 214 La. 
351, 37 So. 2d 815 (1948). In  State v. K raft, supra, the court 
explained the requirement of certainty (214 La. at 356) :

“* * * i t  is sufficient to say that a criminal statute, in order 
to he valid and enforceable, must define the offense so specifi­
cally or accurately that any reader having ordinary intelligence 
will know when or whether his conduct is on the one side or the 
other side of the border line between that which is and 
that which is not denounced as an offense against the law.”



38

The per curiam decisions of the Louisiana Supreme 
Court in the instant cases are directly contrary to the 
Sanford case since here the court applied Section 103 
to completely peaceful activity. Thus, petitioners 
were not given fair notice that their conduct was 
criminal either by the terms of the statute or by its 
interpretation in the Louisiana courts.

I l l
UN-DEE THE CIRCUMSTANCES OF THESE CASES, PETITIONEES ’ 

ARREST AND CONVICTION WERE THE RESULT OF STATE, 
NOT PRIVATELY, IMPOSED RACIAL DISCRIMINATION AND 
THEREFORE VIOLATE THE EQUAL PROTECTION CLAUSE OF 
THE FOURTEENTH AMENDMENT

As we have shown above (pp. 18-33), the records in 
these cases are devoid of evidence which could sustain 
a conviction for disturbing the peace. But despite 
this lack of evidence of any violation of L.S.A.-R.S. 
14:103(7), petitioners were arrested and convicted. 
Under the circumstances of these cases, it seems plain 
that the arrests and convictions were simply attempts 
to effectuate a State policy of racial segregation 
which violates the equal protection clause of the 
Fourteenth Amendment.10

10 The Louisiana State policy of racial segregation is indicated 
by a multitude of legislation. In  1960, the legislature passed 
a joint resolution which began (Act No. 630 of 1960):

“Whereas, Louisiana has always maintained a policy of segre­
gation of the races, and

“Whereas, it is the intention of the citizens of this sovereign 
state that such a policy be continued. * * *”
There are statutes in Louisiana which require segregated 
seating on trains (L.S.A.-R.S. 45:528-632), and in railroad 
waiting rooms (L.S.A.-R.S. 45:522-525); which specify that 
court dockets shall reflect the race of the parties in divorce 
cases (L.S.A.-R.S. 13:917); which compel segregation in penal



39

In contending that petitioners’ arrest and convic­
tion were a denial of equal protection of the law, 
we do not rely on the obvious fact that since peti­
tioners were considered both by the restaurants and 
the police to be sitting in the wrong place merely 
because they were Negroes, their arrest and convic­
tion depended on their race. While petitioners argue 
that this enforcement of local custom constitutes racial 
discrimination enforced by State action within the 
meaning of the Fourteenth Amendment, (Pet. Br. 
18-24), we do not consider it necessary to reach this 
“broad” contention (see supra, pp. 16-17). For here 
petitioners’ arrest and conviction were the result 
of the State’s own policy of racial discrimination 
even though it happened to be combined with pri­
vately imposed discrimination. The State was not 
merely allowing a private person to carry out private 
discrimination on his own property or even enforcing 
such discrimination. Acting through local police and 
judicial authority, it imposed a policy of its own.

A. The records show that petitioners were arrested 
because of their “mere presence” at the lunch coun­
ters. The police officers acted, not to curb a disturb­
ance of the peace but to carry out what they

institutions (L.S.A.-R.S. 15:752); which prohibit persons of 
one race from establishing residence within a “community” 
of the other race without approval of a majority of the 
residents of the other race (L.S.A.-R.S. 33:5066); which re­
quire segregated box offices for circuses (L.S.A.-R.S. 4:5) and 
which prohibit the arrangement of dances, athletic contests, 
etc., where Negroes and whites will be present together 
(L.S.A.-R.S. 4:451-455). Even the blind are segregated under 
Louisiana law (L.S.A.-R.S. 17:10). In these very cases each 
petitioners’ race was indicated on the information (see supra, 
p. 6, note 2).



40

considered to be the State policy of racial segregation. 
The Garner case shows this most clearly, for there 
the owner, while advising petitioners that they would 
not be served, did not order them to leave and neither 
he nor any of his employees or customers called the 
police (G-. 30-31). Rather, the police officers who 
made the arrest were called by a police officer on his 
beat near the store (GK 34-35). Thus, the arrival 
and subsequent actions of the police were entirely 
unsolicited by any private citizen. The only police 
officer who testified at petitioners’ trial stated that 
the police acted because “ * * * the law says that this 
place was reserved for white people and only white 
people can sit there and that was the reason they were 
arrested. * * * The fact that they were sitting 
there and in my opinion were disturbing the peace 
by their mere presence of being there I  think was a 
violation of Act 103. * * * The mere presence of 
these negro defendants sitting at this cafe counter 
seat reserved for white folks was violating the law 
* * *” (G. 35-36).

Thus, the police officers’ action was not in any way 
directed at protecting the property rights of the 
owner of the drug store. Plainly, this direct, un­
solicited, and affirmative action of the police rep­
resents a form of State action designed to effectuate 
a State policy of racial segregation. That action 
is as clearly unconstitutional as if it had been 
taken under a statute specifically requiring the segre­
gation of the races. In  the words of Mr. Justice



41

Frankfurter, dissenting on other grounds in Burton 
v. Wilmington Parking Authority, 365 IT.S. 715, 727:

* * * For a State to place its authority be­
hind discriminatory treatment based solely on 
color is indubitably a denial by a . State of the 
equal protection of the laws, in violation of 
the Fourteenth Amendment. * * *

Concededly, the role of the State in Briscoe and 
Hoston is not quite as independent of private action 
as it is in Garner. In Briscoe, the police were called 
by a patron, a Greyhound bus driver (B. 33), and 
in Hoston, the police were summoned by the store 
manager (H. 30). But in neither case were the 
police told that their assistance was needed for any 
reason other than that Negroes were sitting at a 
lunch counter reserved for whites. In Briscoe, the 
call to the police advised that “ there were several 
colored people sitting at the lunch counter. * * * 
[The police] were called because of the fact that 
[petitioners] were sitting in a section reserved for 
white people” (B. 34-35). In  Hoston, the police 
were told that “ they [the Negroes] were seated at 
the counter reserved for whites” (II. 30). There is 
no evidence that either the bus driver or the 
store manager summoned the police because petition­
ers refused to leave upon request.11 Thus, in both 
Briscoe and Hoston the calls to the police did no

11 In  any event, it is hardly likely that a request to move 
would have provided any greater justification for the arrests 
in these cases. A refusal to move is not an element of the 
crime for which these petitioners were arrested and convicted.



42

more than bring to the officers’ attention what they 
observed for themselves in Garner.

There was no evidence that the police were re­
quested to arrest petitioners.12 The arrests in the 
other cases were made by the same officers who acted 
in Garner, and for the same reasons. Thus, in Bris­
coe, the police officer who testified in Garner stated 
that “ the mere presence of their being there” was 
the reason for petitioners’ arrest (B. 38). “ [A c ­
cording to the law, in my opinion, they were disturb­
ing the peace. * * * The fact that their presence 
was there in the section reserved for white people, 
I  felt that they were disturbing the peace of the 
community” (B. 36). Similarly, in Hoston, the same 
officer testified that petitioners were disturbing the 
peace “ [b]y sitting there” “because that place was 
reserved for white people” (H. 37). Whether the 
police acted of their own volition or in response to a 
call in no way affects the fact that these arrests 
ostensibly for disturbing the peace, but actually based 
on petitioners’ mere presence, were but a means of 
enforcing a State policy of racial segregation.

B. I t  is also clear that petitioners’ conviction was 
based on their race, and for this independent reason 
is a denial of equal protection of the laws. As we 
have shown above (pp. 23-30), the prosecution intro­
duced no evidence upon essential elements of 
the statutory offense: upon whether a disturbance was

12 In  Briscoe, a waitress did testify that, when the police were 
called, they were asked “to come get them” (B. 31). Since the 
bus driver made the call, it was apparently he who made this 
request. There is no evidence that he, or the waitress, had 
authority to have petitioners removed from the restaurant.



43

foreseeable and whether a disturbance occurred. The 
only possible basis upon which the court could have 
found that these elements of the crime were satisfied 
is judicial notice or a ruling that the existence of 
the necessary elements involves a question of law 
rather than of fact.

1. The trial court found in all three cases that pe­
titioners’ actions would foreseeably alarm and dis­
turb the public (see supra, p. 23). Since no evi­
dence was introduced to support this conclusion, it 
necessarily must have depended upon the court’s 
taking judicial notice that, if Negroes publicly occupy 
facilities reserved for whites, public alarm or disturb­
ance will foreseeably occur. As stated above (pp. 
25-26), we do not believe the courts may take judicial 
notice of facts which are doubtful and, particularly, 
as in these cases, where they are contradicted by the 
record. While this is true generally, it is the more 
important when the effect is to impose racial discrim­
ination. If  the Louisiana courts can properly take 
judicial notice that a disturbance of the peace is fore­
seeable as a matter of law, without proof, whenever 
racial integration occurs in public places, the result 
is a State-imposed or, at the least, strongly encour­
aged, rule of segregation. As Mr. Justice Stewart 
stated in his concurring opinion in Burton v. Wil­
mington Parking Authority, supra, 365 U.S. at 726- 
727:

* * * In upholding Eagle’s [a restaurant] 
right to deny service to the appellant solely be­
cause of his race, the Supreme Court of Dela­
ware relied upon a statute of that State which



44

permits the proprietor of a restaurant to refuse 
to serve “persons whose reception or entertain­
ment by him would be offensive to the major 
part of his customers * * There is no sug­
gestion in the record that the appellant as an 
individual was such a person. The highest 
court of Delaware has thus construed this legis­
lative enactment as authorizing discriminatory 
classification based exclusively on color. Such 
a law seems to me clearly violative of the Four­
teenth Amendment. * * * [Emphasis added.]

2. The trial court found that a disturbance had 
actually occurred only in the Garner case. While 
there is no evidence to support this determination, 
a court could not properly take judicial notice that 
a disturbance in fact occurs whenever Negroes pub­
licly enter places reserved for whites. But even if 
an assumption so contrary to common experience 
were generally permissible in criminal cases, it could 
not be permitted when it would impose racial dis­
crimination. Thus, just as a State cannot take judi­
cial notice that a disturbance is foreseeable when 
whites and Negroes occupy the same public facilities 
0supra, pp. 25-26), similarly it violates the equal pro­
tection clause of the Fourteenth Amendment to take 
judicial notice that disturbances actually occur in 
every such situation.

3. The trial court found in the Garner and Bris­
coe cases, although not in the Host on case, that pe­
titioners acted unreasonably (Gk 37; B. 39). This 
determination, which is required by subsection 7, 
cannot be based on any evidence directly on the 
point, since none was introduced; therefore, it must



45

have been based on a conclusion of law. This means 
that the court concluded that it is automatically 
“ unreasonable” for Negroes to sit in private facili­
ties reserved for whites even though they are not 
told by the proprietor to leave the premises or even 
the particular facility. This determination by the 
State would mean here again that the State was 
itself engaged in imposing racial segregation. Just 
as a State cannot consider Negroes automatically 
“ offensive” to white customers of a restaurant in 
the absence of proof, so a State cannot consider 
Negroes ipso facto unreasonable when they sit at 
lunch counters normally reserved for whites (see the 
concurring opinion of Mr. Justice Stewart in Bar­
ton v. Wilmington Parking Authority, quoted supra, 
pp. 43-44).

C. While Louisiana’s disturbance-of-the-peace stat­
ute was undoubtedly not enacted to discriminate 
against Negroes, it is nevertheless unconstitutional 
when applied so as to justify the arrest and con­
viction of Negroes as part of a State-imposed pol­
icy of segregation. As long ago as 1886, this Court 
held in Yick Wo v. Hopkins, 118 U.S. 356, 373:

* * * whatever may have been the intent of 
the ordinances as adopted, they are applied by 
the public authori ties charged with their admin­
istration, and thus representing the State itself, 
with a mind so unequal and oppressive as to 
amount to a practical denial by the State of 
the equal protection of the laws which is se­
cured to the petitioners, as to all other persons, 
by the broad and benign provisions of the 
Fourteenth Amendment to the Constitution of 
the United States. *  *  *



46

Similarly, in Sunday Lake Iron Go. v. Wakefield, 247 
U.S. 350, 352, this Court held:

The purpose of the equal protection clause of 
the Fourteenth Amendment is to secure every 
person within the State’s jurisdiction against 
intentional and arbitrary discrimination, 
whether occasioned by express terms of a stat­
ute or by its improper execution through duly 
constituted agents. * * * 13

When the execution of a law is based upon racial 
considerations, there is a clear violation of the Four­
teenth Amendment. This principal was succinctly 
stated by Mrs. Justice Harlan, dissenting in Plessy 
v. Ferguson, 163 U.S. 537, 554-559:

Our Constitution is color-blind * * *. The 
law regards man as man, and takes no account 
of his surroundings or of his color when his 
civil rights as guaranteed by the supreme law of 
the land are involved. * * *

Race can never be made a factor in law enforce­
ment without denying equal protection. State action 
which promotes a State policy of segregation and, 
therefore, violates rights protected by the Constitu­
tion is not saved by using the label “ disturbance of 
the peace.”

IV
IN  B R I S C O E  V. L O U I S I A N A ,  PETITIONERS’ ARREST AND 
CONVICTION VIOLATED THE INTERSTATE COMMERCE ACT

A. T H E  INTERSTATE COMMERCE ACT PROHIBITS D ISCRIM IN A TIO N
BASED ON RACE IN  INTERSTATE BUS TERM INALS

Section 216(d) of Part I I  of the Interstate Com­
merce Act, 49 U.S.C. 316(d), provides that:

13 See Note, The Bight To Nondiscriminatory Enforcement 
of State Penal Laws, 61 Col. L. Kev. 1103 (1961).



47

* * * I t shall be unlawful for any common 
carrier by motor vehicle engaged in interstate or 
foreign commerce to make, give, or cause any 
undue or unreasonable preference or advan­
tage to any particular person * * * in any 
respect whatsoever; or to subject any particular 
person * * * to any unjust discrimination or 
unreasonable prejudice or disadvantage in any 
respect whatsoever * * *.

In Boynton v. Virginia, 364 U.S. 454, the Court held 
that this provision forbids racial discrimination 
against interstate passengers in terminals and 
restaurants operated “as an integral part of the bus 
carrier’s transportation service for interstate pas­
senger” (id. at 463-464). Since “ [t]he Interstate 
Commerce Act * * * uses language of the broadest 
type to bar discriminators of all kinds” (id. at 457)’, 
we submit that none of the differences between the 
instant case and Boynton justifies different results.

Petitioners in the instant case were students in 
Baton Rouge and were therefore apparently not inter­
state passengers. This Court, however, did not rely 
in Boynton upon the status of the defendant as on 
interstate passenger. For whether the customer him­
self was an interstate passenger is irrelevant under 
49 U.S.C. 316(d); that section forbids interstate 
carriers to discriminate against “any particular per­
son” (emphasis added).14 The only way the restau­

14 The power of Congress to prevent discrimination of all 
kinds in interstate terminals is beyond doubt. This Court has 
held that even if “activity be local and though it may not be 
regarded as commerce, it may still, whatever its nature, be 
reached by Congress if it exerts a substantial economic effect 
on interstate commerce, and this irrespective of whether such 
effect is what might at some earlier time have been defined as 
‘direct’ or ‘indirect’.” Wichard v. Filbum , 317 U.S. I l l ,  125.



48

rant could distinguish between Negro interstate pas­
sengers and intrastate passengers or non-passengers 
would be to require Negro customers to demonstrate 
their interstate status before they use the facilities 
open to interstate passengers without discrimination. 
White customers would not be required to do so 
since the restaurant open to white intrastate passen­
gers and non-passengers is the same for white inter­
state passengers. Thus, if the restaurant in this 
case could refuse admission to Negroes other than 
interstate passengers, the effect would be to dis­
criminate against Negro interstate passengers vis-a- 
vis white interstate passengers by requiring only the 
former to show their tickets. See Baldwin v. Morgan, 
287 F. 2d 750, 759 (C.A. 5).

The lunch counter involved in Briscoe was located 
in the Greyhound Restaurant in the Greyhound bus 
terminal in Baton Rouge. The information charged 
petitioners with refusing “to move from a cafe counter 
seat at Greyhound Restaurant * * *” (B. 1); the 
waitress who refused service to petitioners testified 
that she was employed at the “Greyhound Bus Sta­
tion” (B. 30) ; and one of several bus drivers in the 
restaurant called the police (B. 33). This Court 
could properly take judicial notice that the Grey­
hound Company is an interstate motor carrier and 
that the Baton Rouge station is an interstate termi­
nal. I t  can fairly be inferred, in the absence of 
evidence to the contrary, that a restaurant called the 
Greyhound Restaurant located in a Greyhound Sta­



49

tion is operated as an integral part of interstate com­
merce. In these circumstances, the Boynton case 
holds that the Interstate Commerce Act prohibits 
racial discrimination.

B. T H IS  CONTENTION- CAN PROPERLY BE CONSIDERED BY  T H IS  COURT 

EVEN TH O U G H  PETITIO N ER S HAVE N O T PRESENTED IT

Petitioners in the Louisiana courts, as in this 
Court, have raised only constitutional questions and 
have not argued that their rights under the Interstate 
Commerce Act were violated. Nevertheless, we sub­
mit that this issue can be considered by this Court. 
Just as in Boynton v. Virginia, supra, where the peti­
tioner did not raise this issue in his petition for cer­
tiorari and before the state courts argued only a 
“closely related” issue, there are here “persuasive 
reasons * * * why this case should be decided, if it 
can, on the Interstate Commerce Act contention 
* * *” (364 U.S. at 457).

We submit that this Court cannot be forced to con­
sider constitutional issues merely because the peti­
tioners in Briscoe failed to raise their statutory 
arguments. The Court will necessarily decide one 
or more constitutional issues in the Garner and Hos- 
ton cases for in those cases the lunch counters were 
not located in bus terminals and therefore the con­
tention under the Interstate Commerce Act is not 
available. But if the Court decides that the arrest 
and conviction of the petitioners in Garner and 
Host on is invalid on the basis of a particular consti­
tutional contention, but decides (contrary to our argu­
ments above) that this contention does not apply to



50

the petitioners in Briscoe because of the particular 
facts of that case, the Court should not be required to 
decide for or against the petitioners in Briscoe under 
the various other constitutional contentions. I t seems 
entirely appropriate for the Court, before going 
on to the other constitutional issues, to determine 
whether petitioners’ statutory rights under the Inter­
state Commerce Act have been violated.

Unless the Court can consider statutory issues de­
spite the failure of the parties to raise them, the 
parties have the power to force the Court to decide 
constitutional issues even though there is a dispositive 
non-constitutional issue. This would allow the parties 
to nullify this Court’s historic refusal to adjudicate 
constitutional questions except where such an adjudi­
cation is absolutely necessary to the decision. See the 
concurring opinion of Mr. Justice Brandeis in Ash- 
wander v. Tennessee Valley Authority, 297 U.S. 288, 
345-348. In particular, this Court has held that “if a 
case can be decided on either of two grounds, one 
involving a constitutional question, the other a ques­
tion of statutory construction or general law, the 
Court will decide only the latter.” Id. at 347; Siler 
v. Louisville & Nashville B.R. Co., 213 U.S. 175, 191; 
Light v. United States, 220 U.S. 523, 538.

In circumstances similar to those involved here, this 
Court in United States v. C.I.O., 335 U.S. 106, 110, 
refused to consider the constitutional issues. There, 
the defendants challenged the Federal Corrupt 
Practices Act and the indictment under it on several 
constitutional grounds but raised no claim in the trial



51

court that the indictment failed to charge an offense 
within the scope of the statute (see R. 7-13 in. No. 695, 
Oct. Term 1947). Moreover, only the constitutional 
issues were raised in this Court. Nevertheless, the 
Court stated that it passes on the constitutionality of 
statutes only “in cases of logical necessity,” which it 
found was not present because the indictment did not 
charge an offense. Thus, even though the parties had 
raised only constitutional issues, the Court con­
cluded that a non-constitutional issue was dispositive 
and refused to consider the constitutional questions.

We submit that, if the constitutional issue which is 
conclusive for petitioners in Garner and Host on is not 
found to be conclusive for petitioners in Briscoe, the 
Court may and should consider the non-constitutional 
question whether the latters’ rights under the Inter­
state Commerce Act were violated. Since, we believe, 
petitioners ’ rights under the Act were in fact violated, 
the Court will thereby be relieved of deciding any 
further constitutional issues.



52

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the judgments of the Supreme Court of 
Louisiana should be reversed.

A rchibald Cox,
Solicitor General. 

B ukke Marshall,
Assistant Attorney General. 

B ruce J . Terris,
Assistant to the Solicitor General. 

H arold H . Greene,
H oward A. Glickstein,

Attorneys.
S eptember 1961.

B .8 . eOVERNKEKT FBIRTIJUt O PPICSiJM l