Newman v. Piggie Park Enterprises Appellants' Brief

    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