Newman v. Piggie Park Enterprises Appellants' Brief
Public Court Documents
January 1, 1966

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Brief Collection, LDF Court Filings. Newman v. Piggie Park Enterprises Appellants' Brief, 1966. 5dfa5789-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a45bb7f3-5841-4ea1-9837-1aab1e757435/newman-v-piggie-park-enterprises-appellants-brief. Accessed June 17, 2025.
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Uttiteb States (Huurt af Appeals F or t h e F ourth Circuit No. 10,860 In the A n n e P. N ew man , S haron W . N eal a n d J ohn M u n g in , Appellants, v. P iggie P ark E nterprises, I n c ., a Corporation, and L. M aurice B essinger, Appellees. o n a p p e a l fr o m t h e u n it e d s t a t e s d ist r ic t co urt FOR THE EASTERN DISTRICT OF SOUTH CAROLINA APPELLANTS’ BRIEF J ack Greenberg M ichael M eltsner 10 Columbus Circle New York, New York M atthew J . P erry L incoln C. J e n k in s , J r. H e m ph il l P. P ride, II 1107% Washington Street Columbia, South Carolina Attorneys for Appellants I N D E X Statement .......................................................................... 1 Questions Presented ................................................... 8 A rgument : I. The District Court Erred by Excluding Drive-in Eating Places From Coverage as Public Ac commodations Within the Meaning of Title II of the Civil Bights Act of 1964 ...................... 9 II. Negro Appellants Are Entitled to a Reasonable Attorney’s F e e ........................................................ 21 Conclusion ....... 27 T able of Cases Bell v. School Board of Powhatan County, 321 F. 2d 494 (4th Cir. 1963) ...................................................... 26 Franklin v. Peppers, 9 R.R. L. Rept. 1843 (M. D. Fla. 1964) ...... 24 Georgia v. Rachel, 384 U. S. 780 ..................................... 22 Guardian Trust Co. v. Kansas City Southern, 28 F. 2d 283 (8th Cir. 1928) .................................................... 25 Katzenbach v. McClung, 371 U. S. 291 ......................... 24 McClung v. Katzenbach, 233 F. Supp. 815 (N. D. Ala. 1964) PAGE 14 11 Rolax v. Atlantic Coastline Railroad Co., 186 F. 2d 473 (4th Cir. 1951) ....................................................... 25 Sprague v. Taconic National Bank, 307 U. S. 161 (1939) ............. ........................ .................. ..... ............ 25 Twitty v. Vogue Theatre Corp., 242 F. Supp. 281 (M. D. Fla. 1965) ...................................................................... 23 Willis v. Pickrick, 231 F. Supp. 396 (N. D. Ga. 1964) ..20, 21 Statutes Involved: Title II of the Civil Rights Act of 1964 42 U. S. C. §2000a .................................................. 1 §2000a-l................................................ 22 §2000a-2................................................ 22 §2000a-3................................ 21 §2000a-5................................................ 22 §2000a-(3) ( a ) ....................................... 22 §2000a-(3) ( b ) ................................. 1, 22,24 §2000a-(b) (1 ) ....................................... 18 §2000a-(b) (2) .......................7,9,11,19, 21 §2000a-(b) (3 ) .....................................19, 24 §2000a-(c) (1) ....................................... 19 §2000a-(c)(2) §2000a-(c)(3) PAGE .6, 14, 20, 21, 24 ........................ 7,19 Ill Other Authorities: 110 Cong. Rec. 1449, 1569 (Daily Ed., January 31, 1964) .............................................................................. 13 110 Cong. Rec. 1456 (Daily Ed., Jan. 31, 1964) . 14 110 Cong. Rec. 7177 (Daily Ed., Apr. 9, 1964) . 15 110 Cong. Rec. 1901 (Daily Ed., Feb. 5, 1964) .............. 14 110 Cong. Rec. 1902 (Daily Ed., February 5, 1964) at 1902 ............................................................................ 15 110 Cong. Rec. 14201 (June 17, 1964) ............. 22 110 Cong. Rec. 14214 (June 17, 1964) ............. 23 2 U. S. Code & Cong. News, 88th Cong., 2d Sess. 1964, pp. 2395, 2410, 2424, 2465, 2480, 2494 .......................... 13 House Committee on the Judiciary, 2 U. S. Cong, and Admin. News, 1964, p. 2391 .......................................... 20 Hearings Before Comm, on Commerce, U. S. Senate, 88th Cong., 1st Sess. Part I, pp. 61, 333 ..................13,18 Hearings Before the Comm, on the Judiciary 88th Cong. 1st Sess. Part II pp. 1374-75 ............................. 18 Hearings Before Comm, on Judiciary, House of Rep resentatives, 88th Cong., 1st Sess. Part IV, p. 2701 .... 13 77 Harv. L. Rev. 1135 (1964) ...................................... 25 PAGE In the llmti'ii i'tutni (Enurl of Appeals F oe t h e F ourth Circuit No. 10,860 A n n e P. N ew man , S haron W. N eal an d J ohn M u n g in , Appellants, v . P iggie P ark E nterprises, I n c ., a Corporation, and L. M aurice B essinger, Appellees. APPELLANTS’ BRIEF Statement This is a class action for an injunction brought by Negro appellants against the corporate operator of a restaurant chain, and its president and principal stockholder, pur suant to Title II of the Civil Rights Act of 1964, 42 U. S. C. §§2000a et seq. The district court denied relief as to all but one of six restaurants owned by the corporation and declined to order payment of counsel fees as authorized by 42 U. S. C. $2000a-3(b). The complaint was filed in the district court for the district of South Carolina, December 18, 1964 alleging, in summary, that Piggie Park Enterprises, Inc., operates restaurants at various locations in South Carolina; that 2 operation of these restaurants affects commerce within the purview of Title II and that Negroes are refused ser vice at the restaurants pursuant to corporation policy (la-7a). The corporation and its President answered by denying that Negroes are refused service at the restaurants; that their operations affect commerce; and that they operated any place of “public accommodation” as that term is de fined in the Civil Rights Act of 1964.1 It was asserted that Title II is unconstitutional in violation of the Com merce Clause (Art. I, §8); the privileges and immunities clause (Art. IV, §2); the due process and equal protection clauses of the Fourteenth Amendment; and the Thirteenth Amendment of the Constitution of the United States. In addition, the corporation President L. Maurice Bessinger, alleged that service of food to Negroes, as required by Title II, violated his freedom of religion as protected by the First Amendment (8a-10a; lla-13a; 17a-20a). The facts adduced at a trial held April 4 and 5, 1966 (21a-205a) and as found by the district court are not materially disputed. The corporation operates six eating places, five of which are drive-in facilities (211a-212a). At three of these drive-ins there are no chairs or stools; on premises food consumption takes place in a customers auto mobile. In addition to automobile service, two of the five drive-ins maintain “two or three small tables . . . with a couple of chairs at each table” (183a-184a). The sixth facility, Little Joe’s Sandwich Shop, contains tables and 1 Defendants filed an answer February 5, 1965, an amended answer August 23, 1965 and were permitted by the district court to file a second amended answer March 19, 1964. All three plead ings generally deny the allegations of the complaint. 3 chairs for approximately sixty customers and has no drive- in facilities (212a). The district court summarized the manner of operation of these restaurants as follows: “In order to be served at one of the drive-ins a customer drives upon the premises in his automobile and places his order through an intercom located on the teletray immediately adjacent to and left of his parked position. After pushing a button located on the teletray his order is taken by an employee inside the building who is generally out of sight of the customer. When the order is prepared a curb girl then delivers the food or beverage to the customer’s car and collects for same. This is generally the only con tact which any of defendant’s employees has with any cus tomer unless additional service is desired. The orders are served in disposable paper plates and cups, and may be consumed by the customer in his automobile on the premises or after he drives away, solely at his option. There are no tables and chairs, or counters, bars or stools at any of the drive-ins sufficient to accommodate any appreciable number of patrons. The service is geared to service in the cus tomers’ cars” (212a, 213a). On the basis of testimony by Mr. Bessinger the Court found that at the five drive-ins off-the-premises food consumption averages fifty percent during the year: “Q. Mr. Bessinger, with reference to the total volume of your business, do you know how much of your business is carry out, or take away business from your drive-ins? A. Yes. Of course, as I said, we try to en courage this to the maximum degree. This would aver age 50%. Carry out would average 50%. I say aver age, because in the real cold temperature it would jump up to eighty to ninety percent; in the real hot 4 temperature it would also jump up to eighty to ninety percent. So it will have an overall percentage of my business that I know for a fact is carried back to the office or carried back home or carried on a picnic, what have you” (213a). “Little Joe’s Sandwich Shop”, is operated as a “cafeteria type sandwich shop” specializing in barbecue. Its food sales are almost entirely consumed on the premises. The sandwich shop is located in the prime shopping area of Columbia’s Main Street; whereas the five drive-in restau rants are all located on interstate highway routes across the state (212a, 214a). Two appellants were denied service on August 12, 1964 at the restaurant located on U. S. Highway 76 and 378 in Columbia. At first a waitress approached their automobile but seeing their race went back into the building without taking their order. Then a man with an order pad came to their car, but refused to take their order, “and gave no reason or excuse for this denial of service, although other white customers were being served there at that time” (214a). Although the second amended answer, filed less than two months before trial denied exclusion (17a) both President Bessinger, a corporation bookkeeper, and a waitress admitted that Negroes are only served on a kitchen door-take out basis2 (160a, 169a, 172a, 189a). The court found denial of full and equal service to Negroes at all six eating places to be “completely established” by the evidence (215a). 2 The limited Negro customers who are served must place and pick up their orders at the kitchen windows and are not permitted to consume their purchases on the premises. 5 The district court found “at least” forty per cent of the approximately $230,000.003 in food purchased by the restau rants each year moved in commerce on the basis of “defen dant’s admission that from eighteen to twenty five per cent of its ‘food’ in a finished or ready-for-use form moved in commerce . . . also the . . . large quantities of live cattle, hogs and chickens purchased by defendant’s suppliers from outside of the state and slaughtered and processed within the state before delivery to defendant, which were not in cluded hy defendant in its out-of-state percentages, along with other foodstuffs purchased by it which were shipped into the state and purchased herein, together with such related items as sugar, salt, pepper, spices and sauces which admittedly moved in commerce . . . ” (221a) (emphasis supplied). Testimony of defendant’s suppliers and book keeper detail the large amounts of meat, poultry, beverages and other items obtained from producers and suppliers outside of South Carolina (216a-220a). The court also found as an “inescapable conclusion” that the restaurants serve “many interstate travelers” in view of the “limited” action taken by the corporation to deter mine the travel status of its customers (215a-216a). Piggie Park displays on each of its establishments one small sign located generally in the front window advising that it does not serve interstate travelers and its newspaper advertise ments include a notice in small print at the bottom of the ad advising that “we do not serve interstate travelers.” However, at the drive-ins the defendants only claim to 3 The corporation bookkeeper stated total food purchases as follows (220a) : 1963- 64 — $240,565.58 1964- 65 $222,845.26 1965 (six months) $122,724.13 6 attempt to determine a customer’s travel status after his order is prepared and actually delivered to his automobile.4 No inquiry whatever is ever made of any customers who are riding in an automobile with South Carolina license plates. No effort is made to determine whether a Negro customer who purchases food on a take-out basis is an interstate traveler. No mention of the practice of not serv ing interstate travelers is included in any of Piggie Park’s radio advertisements although all five of the drive-ins are located at “strategic” positions upon main and much trav eled interstate highways. No steps are taken at “Little Joe’s Sandwich Shop” to determine whether a customer is actually an interstate traveler (215a-216a). D istrict C ourt: Conclusions o f Law The court found that operation of all six of the res taurants “affect commerce” within the meaning of Title II of the Civil Rights Act of 1964, 42 U. S. C. §2000a-(c) (2) as they serve a substantial portion of food which moves in interstate commerce and also serve interstate travelers. Regardless of whether 18 per cent or 25 per cent (figures supplied by the corporation which excluded goods originat ing out of South Carolina but processed or slaughtered within the state) or “at least forty per cent” (the proportion determined by the court) the district court had “no hesi tancy” concluding that a “substantial” portion of food served at the six restaurants moved in commerce (222a- 224a). 4 “If the curb girl who serves the order notices that a customer’s car bears an out-of-state license, she is instructed to inquire whether such customer is an interstate traveler or is residing in South Carolina. There is testimony to the effect that if the customer admits that he is an interstate tourist service is denied to him although the food has been especially prepared to his order” (216a). 7 The district court found that the restaurants serve inter state travelers on the basis of the following factors: (1) testimony that no inquiry was made of a customer’s place of residence; (2) all five drive-ins are located on major interstate highways and large signs at each location ad vertise the restaurants; (3) additional advertisements are placed in newspapers and on radio; (4) the corporation “employs no reasonably effective means of determining whether its customers are inter or intra-state travelers” (224a). Having determined that the operation of the six eating facilities “affect commerce” within 42 U. S. C. §2000a- (c)(3) the court considered whether they were places of public accommodation as defined by 42 U. S. C. §2000a- (b)(2) to include: “Any restaurant, cafeteria, luncheon, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises.” The court found that Little Joe’s Sandwich Shop was such a facility and was covered by the Act but that the five drive-in eating establishments were beyond its reach (225a- 228a). In the court’s view, the sandwich shop is covered because it is “mainly engaged in serving food for on-the- premises consumption” and caters to “walk-in customers who are furnished chairs and tables.” The five drive-in facilities do not have such accommodations and cater to motorized customers, half of whom on the average consume their food off the premises. Such facilities, the court con cluded, are not covered by Title II {Ibid.). On the basis of this distinction the court enjoined racial discrimination only at the sandwich shop and not at the five drive-in 8 facilities (229a). A reasonable attorney’s fee, as sought by appellants, was denied (Ibid.). Notice of Appeal from the order of the district court was filed August 9, 1966. Questions Presented 1. Whether five drive-in eating facilities which (1) deny service to Negroes, (2) serve substantial quantities of food moving in commerce and (3) serve interstate travelers are excused from compliance with the provision of Title II of tho Civil Rights Act of 1964 on the ground that an average of fifty per cent of their customers eat on the premises. 2. Whether Negroes refused service at an eating facility, clearly within the terms of the Civil Rights Act of 1964, are entitled to counsel fees, pursuant to congressional au thorization, when (1) the evidence produced at trial over whelmingly established racial discrimination and involve ment with commerce between the states; (2) the restaurant refused to admit facts establishing discrimination and participation in interstate commerce prior to trial and (3) the restaurant has failed to desegregate although clearly required to do so by law and persists in raising con stitutional defenses settled adverse to it by the United States Supreme Court. 9 A R G U M E N T I. The District Court Erred by Excluding Drive-in Eat ing Places From Coverage as Public Accommodations Within the Meaning of Title II of the Civil Rights Act of 1964. The district court enjoined racial discrimination at one of the corporation’s restaurants hut denied relief with re spect to five drive-in eating facilities on the ground that Congress did not intend such facilities to come within the statutory definition of public accommodation: “Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain or other facility principally engaged in selling food for consumption on the premises . . . ” (42 U. S. C. §2000a-(b)(2)). In support of this conclusion the court reasoned that there are no accommodations at the drive-ins for diners to walk into buildings, sit down and eat5 and customers consume their food inside their automobiles. Principal reliance was placed on a finding that “fifty per cent of all foods served . . . is consumed off the premises” (225a, 228a). Although its opinion does not rely for the proposition on any par ticular legislative debate or report, the court also con cluded that the history of the Civil Rights Act revealed a congressional purpose not to reach drive-in eating facili ties. 5 The record shows that this is true with respect to only three of the five drive-ins, the other two containing two or three tables each (183a-184a). 10 We believe that the court seriously misconstrues the lan guage of Title II, the intent of Congress, and the legislative history, but even under the standard adopted by the court (which we believe are erroneous) Negro appellants should be entitled to relief against the five drive-in establishments. In finding that fifty per cent of the food sold at the drive- ins were consumed off premises the court relied on the following testimony by Corporation President Bessinger: “Q. Mr. Bessinger, with reference to the total vol ume of your business, do you know how much of your business is carry out, or take away business from your drive-ins! A. Yes. Of course, as I said, we try to encourage this to the maximum degree. This would average 50%. Carry out would average 50%. I say average, because in the real cold temperature it would jump up to eighty to ninety percent; in the real hot temperature it would also jump up to eighty to ninety percent. So it will have an overall percentage of my business that I know for a fact is carried back to the office or carried back home or carried on a picnic, what have you” (193a). (Emphasis supplied.) Thus, in certain seasons as few as 10 or 20 per cent of Piggie Park’s customers carry food off the premises; in other seasons as few as 10% or 20% eat on the premises. Fifty per cent is at best a yearly average which represents wide seasonal fluctuation. Unless the Act is read to man date an inflexible yearly standard—and its language and history do not suggest such an interpretation—the Negro denied service in certain seasons is denied service at a place of public accommodation which is, even under the district court’s construction, “principally engaged in sell ing food for consumption on the premises.” It is not clear, 11 in light of the purposes of the Act, see infra, pp. 13-18, why the drive-ins should be exempt because at other times they may not be so “principally engaged.” We submit that if an eating facility serves 90% of its patrons on premises in “hot weather” coverage is established regardless of the yearly average. The legislative history is clear that Congress intended to eliminate interference with commerce by (1) covering eat ing facilities generally, and (2) eliminating uncertainty with respect to coverage so that citizens and restaurateurs would know their rights, see infra, pp. 13-18. But the same disruption of commerce is produced by a Negro traveler’s uncertainty, by mass demonstrations, or merely by artificial restriction of the market whether the drive-ins are “prin cipally engaged” (again using the district court’s construc tion) seasonally or yearly. By requiring a yearly average of greater than 50 percent the district court is introducing an arbitrary element into the Act which Congress never considered. To be sure if “principally engaged . . . ” means what the district court believes it to mean it should be read to cover a facility’s experience over a reasonable period of time, but certainly high on premises food consumption in “hot weather” is sufficient to establish coverage under an Act intended to eliminate discrimination in all eating facilities. We have urged that in light of the plain purpose of the Act the district court misapplied its own standard. In addition, we urge that this Court repudiate that standard itself and construe 42 U. S. C. §2000a-(b) (2) to accomplish the ends for which it was written. Certainly the facilities operated by the corporation are not any less “Any restaurant, etc. . . . ” because the cus 12 tomer eats in his ear rather than at a table. The effect on travel, trade and commerce or the evils of discrimination which the legislative history reveals are not lessened be cause the Negro is refused on premises food service in his car rather than inside a building or because, if served, he would consume his meal in his car parked on the premises rather than at a table on the premises.6 Thus, the district court considered the critical factor in its decision to be that “fifty per cent of all foods served . . . is consumed off the premises.” In the court’s view, the drive-ins were not covered “restaurants etc. . . . ” because “ . . . one who serves fifty per cent or less of its food which is taken and eaten off the premises cannot be held to be principally engaged in selling food for consumption on the premises” (emphasis in original). “ [Principally engaged, etc. . . . ” is taken, therefore, as a criterion for coverage under the Act. Un less proof establishes that more than 50 per cent of the customers of “Any restaurant, etc. . . . ” consume food on the premises, the restaurant is not covered and may ex clude Negroes. We believe the court’s conclusion is erroneous for the phrase “principally engaged in selling food for consump tion on the premises” is directed not to the per cent of take out orders in any particular facility but to the char acter of the eating facility itself. Everything sold at these drive-ins (with the exception of a small amount of bulk barbecue) could be consumed on the premises. The food is sold in a form which permits convenient consumption on the premises. The decision to eat on or off premises is solely the customer’s and the drive-ins exercise no control over these individual decisions. Such a facility is clearly Cf. Note 5 supra. 13 “principally engaged in selling food for consumption on the premises.” (Emphasis supplied.) Focus on the character of the establishment—distinguish ing eating facilities and retail markets for example—is the only construction consistent with the plain congressional intent to eliminate interference with the flow of commerce at all but an eccentric (and probably nonexistent) class of restaurants which had slight connections with interstate commerce and none at all with interstate travelers. To a Negro traveler driving an interstate highway only the ex ternal character of an eating establishment is visible. He has no way of knowing whether 35 or 75 per cent of its customers eat on premises or take out. All he sees is a restaurant that obviously holds itself out as being engaged in selling food for consumption on the premises. To make his right to service depend on the vagaries of each restau rant’s per cent on-premises food consumption is to inject a variable in the statute which invites the very uncertainty and interference with commerce which Congress sought to eliminate. If some percentage of on-premise business must be shown before a facility is covered one would expect some debate in Congress on the question but we have found none reported. On the other hand, the legislative record show beyond doubt that key legislators assumed coverage of virtually all restaurants.7 Even a court which declared the Act un 7 Legislators and witnesses often spoke in terms of eating estab lishments so as to be totally inclusive. See e.g., 2 U. S. Code & Cong. News, 88th Cong., 2d Sess. 1964, pp. 2395, 2410, 2424, 2465, 2480, 2494; Hearings Before Comm, on Judiciary, House of Repre sentatives, 88th Cong., 1st Sess. Part IV, p. 2701; Hearings Before Comm, on Commerce, U. S. Senate, 88th Cong., 1st Sess. Part I, p. 61; 110 Cong. Rec. 1449, 1569 (Daily Ed., January 31, 1964). 14 constitutional concluded as a “simple truth” that Congress intended “to put an end to racial discrimination in all res taurants,” McClung v. Katzenbach, 233 F. Supp. 815, 825 (N. D. Ala. 1964) reversed 379 U. S. 294.8 When Representative Willis sought to amend Section 42 U. S. C. §2000a-(c) (2) to strike “it serves or offers to serve interstate travelers or” and insert in lieu thereof the following: “a substantial number of the patrons it serves are interstate travelers and . . . ” (emphasis sup plied), 110 Cong. Rec. 1901 (Daily Ed., Feb. 5, 1964) Con gressman Celler opposed the amendment: This amendment would change that. Instead of being in the disjunctive, it would be in the conjunctive, and the Attorney General would have to prove two things. First, he would have to prove that in a particular res taurant the service is to a substantial number of inter state travelers. Not merely to interstate travelers but to a ‘substantial’ number of interstate travelers. And, in addition, he would have to prove that a substantial portion of the food which is served has moved in inter state commerce. That is a proof that is twofold, and it makes it all the more difficult for the Attorney Gen eral to establish that proof. It cuts, as it were, the import of the words ‘affect commerce,’ which are on page 43, line 24, in half. You have this situation, for example. Whereas, in the proposal before us, many restaurants are within the orbit of the prohibition of 8 In presenting the Bill, Congressman Celler, Chairman of the Judiciary Committee, said: “All we do here is to apply what those 30 States are now doing and what the District of Columbia is now doing to the rest of the States so that there shall be no discrimination in places of public accommodation privately owned. . . . ” 110 Cong. Rec. 1456 (Daily Ed., January 31, 1964). 15 the bill, many of such restaurants would not be covered under this amendment. Take, for example, a roadside restaurant which sells home-grown food which does not come from outside the State. That would not be covered under the amendment. Furthermore, a local restaurant which serves local people with food coming from all over the United States would not be covered under the amendment. Let me repeat that “We have very significant results here. Instead of having all restaurants covered, under this amendment you would eliminate the restaurant, for example, a roadside restaurant that sells home-grown food. You would also eliminate the local restaurant that serves local people with food that comes from all over the country. I do not think we want such a situation to develop, and for that reason I believe that the whole purpose of covering restaurants would be defeated by this amendment” (110 Cong. Rec. 1902 (Daily Ed. February 5, 1964) at 1902) (emphasis supplied). The amendment was rejected at p. 1903. In the Senate, Senator Magnuson, Chairman of the Com merce Committee, presenting an analysis of Title II, said: “Most public eating places would be within the ambit of Title II because of their connection with interstate travelers or interstate commerce. And in some areas, public eating places would come within the ambit of Title II, because of the factor of State action. “At any rate, it is clear that few, if any, proprietors of restaurants and the like would have any doubt whether they must comply with the requirements of Title II.” 110 Cong. Rec. 7177 (Daily Ed., Apr. 9, 1964) (emphasis supplied). 16 Attorney General Kennedy stated the central purpose of the Act as follows: Arbitrary and unjust discrimination in places of public accommodation insults and inconveniences the individuals affected, inhibits the mobility of our citi zens, and artificially burdens the free flow of commerce. Consider, for instance, the plight of the Negro trav eler in some areas of the United States. For a white person, traveling for business or pleas ure ordinarily involves no serious complications. He either secures a room in advance, or stops for food and lodging when and where he will. Not so the Negro traveler. He must either make elaborate arrangements in advance, if he can, to find out where he will be accepted, or to subject himself and his family to repeated humiliation as one place after another refuses them food and shelter. He cannot rely on the neon signs proclaiming “Va cancy,” because too often such signs are meant only for white people. And the establishments which will accept him may well be of inferior quality and located far from his route of travel. The effects of discrimination in public establish ments are not limited to the embarrassment and frus tration suffered by the individuals who are its most immediate victims. Our whole economy suffers. When large retail stores or places of amusement, whose goods have been obtained through interstate commerce, arti ficially restrict the market to which these goods are offered, the Nation’s business is impaired. Business organizations in this country are increas ingly mobile and interdependent, and they tend to ex 17 pand beyond the areas of their origins. As they find it necessary or feasible to engage in regional or national operations, they establish plants and offices in various parts of the country. These installations benefit the localities in which they are established and affect the commerce of the country. Artificial restrictions on their employees limit this type of mobility and its bene fits to the national economy. Further, if we add together only a minor portion of all the discriminatory acts throughout the country in any one year which deny food and lodging to Negroes, it is not difficult at all to see how, in the aggregate, interstate travel and interstate movement of goods in commerce may be substantially affected. No matter—in Mr. Justice Jackson’s words—“how local the operation which applies the squeeze,” com merce in these circumstances discouraged, stifled, and restrained among the States as to provide an appro priate basis for congressional action under the com merce clause. Mr. Chairman, discrimination in public accommoda tions not only contradicts our basic concepts of liberty and equality, but such discrimination interferes with interstate commerce and the development of unob structed national market. We pride ourselves on being a people who are gov erned by laws. This pride is justified when we provide legal means for the settlement of human differences and the satisfaction of justified complaints. Mass demonstrations disrupt the community in which they occur; they also disrupt the country as a whole. But no one can in good faith deny that the grievances which these demonstrations protest against are real. (Hear 18 ings Before the Comm, on the Judiciary, 88th Cong. 1st Sess. Part II, pp. 1374-75. And Congress was aware that the evils to be eliminated by the Act could be produced by discrimination at drive-in restaurants: Reverend Mack. We have a drive-in that insists on continuing that particular practice of segregation. Princess Anne is 14 miles on the farther side of us going toward the Virginia line. Many of the students from the Maryland State College who take part in demonstrations in Cambridge, and what have you, pass through Salisbury right by this particular drive- in. That has been one of our concerns, that we might be able to open this particular drive-in in order that those students might not stop there, because with all of our major restaurants open, they are still looking at that particular place every time they pass. Why is it that this place continually keeps its segregated pat tern? Senator Monroney. And a demonstration against that might spread. Reverend Mack. It could spread, yes. (Hearings, Senate Commerce Committee, 88th Cong., 1st Sess. p. 333.) It should be noted that although the district court found legislative intent to exclude drive-ins it cited no authority for this conclusion in the legislative history. The congressional intent to cover virtually all restau rants just as clearly as Congress wished to cover almost all hotels, motels, etc., by 42 U. S. C. §§2000a-(b) (1) and 19 (c)(1) and almost all motion picture houses, etc., by §§2000a-(b) (3) and 2000a-(c)(3) is defeated by the con struction of §2000a-(b) (2) adopted below. In contrast, re stricting “principally engaged . . . ” to modifying only “other facility” is consistent with the congressional intent for the legislative history apparently does not contain any discussion of the facilities which would be excluded from coverage by the district court’s construction. This would be highly unusual if Congress intended to restrict the reach of the statute. Far more reasonable is the notion that after enumerating a variety of eating places which it intended to bring within the terms of the statute Con gress defined the remainder of class which it intended to cover—eating facilities in general—in terms of a common characteristic, namely, sale of food which may be and con veniently is consumed on the premises. The “principally engaged” criteria serves to keep the class of “other” facili ties from converging on the classes of other establishments which sell food such as food markets by defining the char acter of the facilities dealt with in §2000a-(b) (2).9 In short, the legislative purpose requires that the dis junctive “or” in §2000a-(b) (2) limit the qualifying phrase “other facility.” In other words, “or other facility prin 9 Without the explanatory phrase “principally engaged etc. . . . ” the statute would read: Any restaurant cafeteria, lunchroom lunch counter, soda foun tain or other facility By inserting “principally engaged etc. . . . ” Congress added lan guage which made the ambiguous phrase “other facility” definite and clearly demonstrated the congressional intent to reach eating facilities generally. Indeed if Congress had not done so a court faced with the question would have likely construed “other facility” to mean other eating facilities and not other food sellers such as markets. “Principally engaged in selling food for consumption on the premises” merely provides such a definition of eating facili ties by referring to their most prominent common characteristic. 20 cipally engaged in selling food for consumption on the premises” means only “and similar establishment,” a class in which drive-in eating facilities clearly fit if for some reason, not apparent to us, they are not restaurants.10 Otherwise there would he no explanation for the numerous statements by key legislators and by the Attorney General which indicate that eating places as a class are covered. There can be no question but that the operation of all six of the eating places involved “affect commerce” as found by the district court. “At least” forty percent of the food sold by the restaurants has moved in commerce, the por tion sold is “substantial,” 11 42 U. S. C. §2000a-(c)(2), un less the word is to be robbed of its usual meaning.12 Like wise, the record clearly establishes that these eating places serve interstate travelers. This is demonstrated by a num ber of factors but conclusively by the failure to determine 10 As noted by the district court this construction is also sup ported by the report of the House Committee on the Judiciary, 2 U. S. Cong, and Admin. News, 1964, pp. 2391, 2395 which states: Section 201(b) defines certain establishments to be places of public accommodation if their operations affect commerce . . . these establishments are . . . (2) restaurants, lunch counters and similar establishments, including those located in retail store and gasoline station. 11 Without merit is the contention of the corporation that only food delivered to it from out of state in the original package and not foodstuffs processed or slaughtered in South Carolina should be considered having moved in commerce. Such a restrictive notion of the Commerce Clause was rejected in Katzenbach v. McClung, 379 U. S. 294, 302. See also Willis v. Pickrick, 231 P. Supp. 396, 399 (N. D. Ga. 1964). It should be noted that even the corpo ration’s conception of movement in commerce results in 25 per cent or 18 per cent of its purchase being so considered and such a figure is also plainly “substantial.” 12 In Katzenbach v. McClung, 379 U. S. 294, 296, 298, the restau rant received 46% of its food from outside of Alabama and con ceded coverage. 21 the status of persons driving automobiles with South Caro lina license plates and thus indulging in the faulty assump tion that one driving such a vehicle cannot be an interstate traveler.13 Although the corporation continued to challenge the Act at trial, the constitutionality of 42 U. S. C. §2000a- (b)(2) is settled by Katzenbach v. McClung, 379 U. S. 294. Nor can the corporate President avoid the Civil Rights Act because of his religious persuasion as the cases cited by the district court show (209a). Negro appellants are, therefore, entitled to an order enjoining racial discrimination at all of the corporation’s restaurants. II. Negro Appellants Are Entitled to a Reasonable Attor ney’s Fee. In actions brought under Title II, the Civil Rights Act of 1964 provides that a prevailing party may be allowed a reasonable attorney’s fee (42 U. S. C. §2000a-3): (b) In any action commenced pursuant to this sub chapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . . . Although the district court had “no trouble” enjoining racial discrimination at one of the six restaurants, and taxed 13 It should be noted that 42 U. S. C. §2000a-(c) (2) does not require proof that a “substantial” number of interstate travelers are served. Unlike the immediately contiguous criterion relating to movement of foods in commerce the clause “serves or offers to serve” does not have a substantiality requirement. Such a require ment was proposed in the House hut an amendment containing such language was defeated, see supra, p. 14. See also Willis v. Pickrick, 241 F. Supp. 396, 399 (N. D. Ga. 1964). 22 costs against the corporation, the court denied the prayer of Negro appellants for a reasonable counsel fee. We be lieve Negro appellants are entitled to fees under any rea sonable construction of 42 U. S. C. §2000a-3(b). Title II as a whole demonstrates a plain desire to insure rapid and effective compliance with its terms and to deter insubstantial and prolonged litigation.14 The counsel fee provision of 42 U. S. C. §2000a-3(b) is part of a congres sional scheme for deterring evasion and resistance to the “full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation,” 42 U. S. C. §2000a-l. Although the legislative record is scanty, such debate as relates to the provision is consistent with an intent to induce compliance by penalizing assertion of frivolous claims and to induce attorneys to represent those with substantial claims. Sena tor Ervin sought to eliminate the provision from the Act on the ground that it would make those benefiting from it special favorites of the law and would encourage “ambu lance chasing.” 110 Cong. Rec. 14201, 14213-14 (June 17, 1964). Senator Pastore made a brief statement in defense of the provision stating that its purpose was to deter frivo lous suits but he clearly intended the provision to guard against frivolous defenses also because he stated “ . . . the court within its discretion is given power to order payment 14 Thus, 42 U. S. C. §2000a-3(a) permits intervention by the Attorney General in privately initiated public accommodation suits, appointment of counsel for a person aggrieved, and “the commence ment of the civil action without the payment of fees, costs or security.” 42 U. S. C. §2000a-5 authorizes the Attorney General to commence litigation where there is “a pattern or practice of resistance to the full enjoyment” of Title II rights. 42 U. S. C. §2000a-2 broadly prohibits any attempt to punish, deprive, or interfere with rights to equal public accommodations. See Georgia v. Rachel, 384 U. S. 780. 23 of attorneys’ fees to the prevailing party . . . It is not favoritism towards one party as against the other,” 110 Cong. Ree. 14214 (June 17, 1964).15 Senator Miller opposed the amendment on the ground that attorneys would be com pensated only if they raised positions with merit: . . . I believe that this is the answer to the Senator from North Carolina, that if we are concerned about ambulance chasing, we had better realize that the ambulance.chasers are not about to be in the business if there is no profit in it for them. They will be in the business only if they can make a profit. They are not going to make much profit out of any cases except those which are meritorious, so I believe that the point is exaggerated, and I believe the amendment is inad visable (110 Cong. Rec. 14214 (June 17, 1964)). In Twitty v. Vogue Theatre Cory., 242 F. Supp. 281, 288, 89 (M. D. Fla. 1965) the court applied such a construction. It determined a reasonable fee to be $500.00 but taxed only $100.00 as costs because the suit was the first under 42 15 Senator Pastore stated: The purpose of this provision in the modified substitute is to discourage frivolous suits. Here, the court within its discretion is given power to order payment of attorneys’ fees to the pre vailing party. First of all, it is within the discretion of the court. It is not favoritism towards one party as against the other. When a person realizes that he takes the chance of having attorneys’ fees assessed against him if he does not prevail, he will deliberate before he brings suit. He will make certain that he is not on frivolous ground. (110 Cong. Rec. 14214 (June 17, 1964).) Senator Pastore’s emphasis on frivolous suits is clearly explained by the character of the challenges raised to the section by Senator Ervin. The only construction of Senator Pastore’s remarks con sistent with their context and the language employed in the statute is that the provision was meant to penalize the assertion of frivolous claims by either party. 24 U. S. C. §2000a-(b) (3) (motion picture houses, etc.); and it arose at a time when a district court had declared other portions of the Act unconstitutional as applied to its opera tions. Other courts have apparently granted attorneys fees as a matter of course. Franklin v. Peppers, 9 B.R. L. Kept. 1843,1845 (M. D. Fla. 1964). Here there are no mitigating factors as those relied upon by the court in Twitty, supra, in restricting counsel fees to a token amount. The corporation has pursued various claims that 42 U. S. C. §2000a-(c) (2) is unconstitutional long after that question has been definitively resolved by the United States Supreme Court in Katsenbach v. Mc- Clung, 371 U. S. 291 (December 14, 1964). Indeed, it filed a second amended answer raising such defenses March 30, 1966 after “carefully reviewing the pleadings heretofore filed” (16a). The corporation also denied its activities affect commerce forcing appellants to offer lengthy proof. After trial, the district court, which excluded the drive-in facilities as a matter of law, had no trouble determining that the sandwich shop (and the drive-ins) were clearly covered by the Act both because a substantial portion of the corporation’s food moved in commerce and because it failed to ascertain the travel status of its customers. It should be noted that either circumstance would have satis fied the “affect commerce” standard of the Act. Finally, patently frivolous defenses were raised, such as denial of racial discrimination and claim that serving Negroes inter feres with a right to free exercise of religion. Given the purpose of 42 U. S. C. §2000a-3(b) the only ground on which the corporation might argue it was not liable for attorney’s fees is that the district court found the five drive-in restaurants not covered by the Act. This would 25 not, however, excuse the failure of the corporation to de segregate the sandwich shop. Nor does it justify consistent maintenance of unsupportable legal positions which un necessarily complicate and prolong disposition of the ques tions of law before the court. This resistance necessitated a trial of a day and one-half, a long witness list, and ex tensive preparation devoted primarily to establishing racial discrimination, service of interstate travelers and substan tial interstate food purchases (all matters ultimately estab lished by overwhelming evidence). The refusal of the cor poration to take initiative in complying with the law has insured that the sandwich shop has had two extra years of segregated operation despite a congressional determina tion in 1964 that discrimination in public accommodations was not in the public interest. Negro appellants assert not only their own rights, hut those of a class of persons whom restaurateurs are clearly on notice they must serve except in extraordinary circum stances. Counsel fees are necessary here not only in order to protect individual rights but because of the class char acter of racial discrimination and because of the serious dislocation of trade and commerce, as found by Congress, caused by such discrimination in public accommodations.16 In writing a comprehensive public accommodations title into the Civil Rights Act of 1964, Congress plainly deter 16 The principle is demonstrated in a class of cases in which the defendant is trustee of a common fund and as such hound by law to protect the interests of the plaintiffs who are beneficiaries of the fund. In such cases where the trust has been violated courts do not hesitate to award attorneys fees to plaintiffs. Rolax v. Atlantic Coast Line Railroad Co., 186 F. 2d 473 (4th Cir. 1951); Guardian Trust Co. v. Kansas City Southern, 28 F. 2d 283 (8th Cir. 1928); Sprague v. laconic National Bank, 307 U. S. 161 (1939). The public interest in full and equal enjoyment of public facilities requires no less. See note 77 Harv. L. Rev. 1135 (1964). 26 mined to end once and for all such discriminatory prac tices.17 Denial of attorneys fees here will encourage other restaurants to continue evasive, dilatory, and obstructive efforts to avoid the Act and gain a two year extension of segregation. Thus the denial by the district court of a reasonable attorney’s fee encourages further litigation. In Bell v. School Board of Powhatan County, 321 F. 2d 494, 500 (4th Cir. 1963) this Court set out criteria for awarding counsel fees in the school desegregation cases. They include (1) refusal to take any initiative to desegre gate the schools; (2) interposing administrative obstacles to thwart the valid wishes of plaintiffs for a desegregated education; (3) long continued pattern of evasion and ob struction. The Bell court concluded that the “equitable remedy would be far from complete and justice would not be obtained if counsel fees were not awarded in a case so extreme.” There was, of course, in Bell no federal statute evidencing a congressional intent for the prevailing party to be awarded counsel fees. The action of Congress in providing for counsel fees to the prevailing party in the face of objections that such a provision was not usual in our law makes award of counsel fees far stronger here but appellants submit that this case meets even the Bell cri teria. The corporation has refused to take any initiative to desegregate a restaurant clearly covered by the Act over two years after the enactment of a statute by Congress designed to insure nondiscrimination. Despite the Supreme Court’s definitive action in upholding the constitutionality of the Act, the corporation has interposed a variety of frivolous constitutional defenses. It has refused to narrow the issues and put Negro appellants to an unnecessary 17 See supra, pp. 13-18. 27 task of developing proof. The corporation is doing just what Congress sought to deter, calling for exercise of dis cretion to award counsel fees. CONCLUSION W herefore, fo r the fo reg o in g reaso n s , ap p e llan ts p ra y the ju d g m en t below be v aca ted and m odified. Respectfully submitted, J ack G reenberg M ichael M eltsner 10 Columbus Circle New York, New York M atthew J . P erry L incoln C. J e n k in s , J r . H e m ph il l P. P ride, II 1107y2 Washington Street Columbia, South Carolina Attorneys for Appellants 38