Sissle v. Harvey, Inc.; Delaney v. Golf Club Records and Briefs

    RECORDS
AND

BRIEFS















In the Supreme Court of Ohio

A ppeajl F rom:
T h e  Court of A ppeals of Cuyahoga County.

ELLEN SISSLE, 
Plaintiff and Appellant, 

vs.
HARVEY, INC., 

Defendant and Appellee.

BRIEF OF PLAINTIFF AND APPELLANT
In Support of Motion to Certify, and Opinions.

Chester K. Gillespie and 
N orman L. M cG hee,

501 Erie Building, Cleveland, Ohio, 
Attorneys for Appellant.

George F. Q u in n ,
National City Bldg., Cleveland, Ohio,

Attorney for Defendant and Appellee.

Th e  Ga te s  L egal  P u b l is h in g  Co., Cl e v e l a n d , O.





No.

In the Supreme Court of Ohio

A ppeal F rom
T he  Court of A ppeals of C uyahoga C ounty .

ELLEN SISSLE, 
Plaintiff and Appellant, 

vs.
HARVEY, INC., 

Defendant and Appellee.

BRIEF OF PLAINTIFF AND APPELLANT
In Support of Motion to Certify, and Opinions.

Chester K. G illespie and 
N orman L. M cG hee,

501 Erie Building, Cleveland, Ohio, 
Attorneys for Appellant.

George F . Qu in n ,
National City Bldg., Cleveland, Ohio,

Attorney for Defendant and Appellee.





INDEX.

Facts ................................................................................ 1
Assignments of Error..................................................... 3
Argument of the Law.............................   3
Conclusion ......................................................................  12
Appendices:

I. Opinion of Court of Appeals.............................  15
II. Opinion of Municipal Court of Cleveland. . . .  20

Authorities Cited.

Anderson v. State, 30 C. D., 510...................................  10
Brown vs. Bell Co., 146 Iowa, page 89.......................  11
Burks vs. Bosso, 180 New York, 341.........................  8
Darius v. Apostolos, Colorado Supreme Court, 190

Pac., 510, decided December 1, 1919....................... 7
Fowler v. Benner, 23 O. D., 59.....................................  4
Gillock v. The People, 171 111., 307.............................  7
Guy v. Tri-State Amusement Co., 7 O. A., 509.......... 10
Johnson v. Humphrey, etc. Co., 14 C. D., 135.............. 10
McNicoll v. Ives, 4 Ohio Dec., 76.................................  9
McReynolds v. The People, 230 111., 623.....................  7
Morris v. Williams, 39 O. S., 554.............................  9
Puritan Lunch Co. v. Forman, 45 C. C. R., at page 531 10
State v. Williams, 35 Mo. App., 541.......................... 6
United States Cement Co. v. Cooper, 172 Ind., 599 7



Woodworth v. The State, 26 Ohio St., 196.................  5
Youngstown Park & Falls Raihvay Company vs.

Tokus, etc., 4 Ohio App., 281............................... 1, 11
27 Minn., 460 and 462....................................................  4
172 Mo., 523 and 524..................................................  4
36 Vt., 645, 648 ..............................................................  4
Bouvier’s Laiv Dictionary, Volume 3, page 2763. . . .  3
1 Corpus Juris, 518......................................................  4
Greenleaf’s Evidence, Section 1 2 8 ............................  4
1 Sutherland Statutory Construction (2 ed.), Section

437 ...........................................................................  7
Ohio Jurisprudence, Volume 7, pages 489 and 490. . 11
General Code of Ohio, Section 12940..........................  3,9



No

In the Supreme Court of Ohio

A ppeal F kom
T he  Couet oe A ppeals of Cuyahoga Co u nty .

ELLEN SISSLE, 
Plaintiff and Appellant,

YS.

HARVEY, INC.,
Defendant and Appellee.

BRIEF ON BEHALF OF 
PLAINTIFF AND APPELLANT.

The parties will be referred to as they appeared in 
the Municipal Court of the City of Cleveland, wherein 
this appellant was plaintiff and this appellee was defend­
ant.

FACTS.
This cause comes into this Court on a motion for an 

order requiring the Court of Appeals of Cuyahoga 
County to certify its record to this Court for review. The 
basis for the motion is that the case is one of general and 
great public interest, and is in direct conflict with 
Youngstown Park & Falls Railway Company vs. Tokus, 
etc., 4 Ohio App., 281.



2
Ellen Sissle, appellant herein, says that on June 29, 

1936, in cause No. 15,405, in the Court of Appeals of 
Cuyahoga County, in which this appellant was appellee 
and this appellee was appellant, a judgment was ren­
dered in favor of Harvey, Inc., this appellee, reversing a 
judgment theretofore entered in this cause in the Mu­
nicipal Court of the City of Cleveland, in favor of the ap­
pellant herein, Ellen Sissle, in the sum of one hundred 
($100.00) dollars, and costs.

On and prior to February 18, 1935, the appellee here­
in owned and operated a women’s wearing apparel shop 
in the Terminal Tower Building, Cleveland, Ohio, cater­
ing to the public in general. On the said February 18, 
1935, this appellee refused to sell the appellant, because 
she was colored and of African descent, some ladies’ 
underwear.

The facts in this case are not in controversy here­
in.

The Cuyahoga County Court of Appeals made the 
following entry:

“ Judgment reversed as contrary to law in that 
this retail store is not a place of public accommoda­
tion or amusement. Exceptions. Final judgment for 
plaintiff in error. Exceptions. Judge Levine dis­
sents.”

This Court will find in the appendix hereof a written 
decision by Judge Drucker of the Municipal Court of 
Cleveland overruling a demurrer which v7as filed by this 
appellee, and the decision by Judges Terrell and 
Lieghley of the Cuyahoga County Court of Appeals. 
Judge Levine did not write a dissenting opinion.



ASSIGNMENTS OF ERROR.
(1) Said judgment by the Court of Appeals is 

erroneous and against the just rights of this 
appellant.

(2) The Court of Appeals erred in not sustaining 
the judgment of the Municipal Court of Cleve­
land.

(3) The Court of Appeals erred in not entering a 
judgment for this appellant.

(4) The judgment of the Court of Appeals is con­
trary to law.

ARGUMENT OF THE LAW.
There is only one question to be determined by this 

Court and that is whether or not this retail store, or 
women’s wearing apparel shop, is a place of public ac­
commodation within the meaning of Section 12940 of 
the General Code of Ohio. This section, so far as per­
tinent, reads as follows:

‘ ‘ D enial  oe P rivileges, at  I nns and O ther P laces by 
R eason of C olor,
Whoever, being the proprietor or his employee, 

keeper or manager of an inn, restaurant, eating 
house, barber-shop, public conveyance by land or 
water, theatre or other place of public accommoda­
tion and amusement, denies to a citizen, except for 
reasons applicable alike to all citizens and regard­
less of color or race, the full enjoyment of the ac­
commodations, advantages, facilities or privileges 
thereof, or, being a person who aides or incites the 
denial thereof, * *
The Court’s attention is directed to the following 

definitions:
“ Bouvier’s Law Dictionary, Volume 3, page 2763:

P ublic . The whole body politic or all the citi­
zens of the state. A distinction has been made be­



4
tween the terms public and general. The former 
term is applied strictly to that which concerns all 
the citizens and every member of the state. When 
the public interest and its rights conflict with those 
of an individual, the latter must yield. ’ ’

In Fowler v. Benner, 23 0. D., 59, it was held that a 
place of public accommodation means a place where the 
wants and desires of those who frequent it may be sup­
plied for consideration. Accommodation is defined in 
Webster’s as being whatever supplies a want or affords 
ease, refreshment or convenience; or anything furnished 
which is desired or needful. See 1 Corpus Juris, 518.

Webster’s Dictionary, also, defines “ place”  as a 
particular space or room.

Certainly there can be no difficulty in regarding this 
women’s wearing apparel shop as a “ place.”

Webster’s Dictionary defines “ public”  as an adjec­
tive, depends for its meaning upon the subject to which 
it is applied. Open to all the people, shared in or to be 
shared in or participated in by the people at large; not 
limited or restricted to any particular class of the com­
munity. See 172 Mo., 523 and 524.

In 27 Minn., 460 and 462, the word public is said to 
have two proper meanings; a thing may be said to be 
public when owned by the public and also when its uses 
are public. In 36 Vt., 645, 648, the term is said to sig­
nify that which is open to general or common use. Green- 
leaf’s Evidence, Section 128 points out that it is some­
times used as synonymous with general, meaning that 
which concerns a large number of persons.

We have said that there is conflict between the deci­
sion of the Cuyahoga County Court of Appeals and that 
rendered in 4 Ohio App., heretofore referred to, and,



5
for that reason we are setting forth said decision some­
what at length, which reads in part as follows :

“ It is claimed on the part of the plaintiff com­
pany that a public dancing pavilion is not included 
within the terms of the statute. It will be noticed 
that after naming inns, restaurants, eating houses, 
barber-shops, conveyances by land or water and 
theatres, it then reads ‘ or other place of public ac­
commodation and amusement, ’ and it is claimed that 
dancing pavilions are not included within the term, 
‘ other place of public accommodation and amuse­
ment. ’

It is urged that this is a penal statute and should 
be strictly construed; that the maxim ejusdem 
generis should be applied in the construction of this 
statute; that where certain persons, objects or things 
are named and followed by general terms, the gen­
eral terms should be construed to apply to objects, 
persons or things of similar or like kind.

This is a well-recognized rule of statutory con­
struction which is intended to aid the court in deter­
mining the true meaning of a statute, but it should 
not be used to limit or abridge the well-defined mean­
ing of the legislature gathered from the ordinary 
meaning of the words used in the statute, keeping in 
mind the object that the legislature had in its enact­
ment.

In the case of Woodworth v. The State, 26 Ohio 
St., 196, the supreme court of this state construed a 
similar expression in a statute reading as follows:

‘ That if any person shall abuse any judge or 
justice of the peace, resist or abuse any sheriff, 
constable or other officer, in the execution of his 
office, the person so offending, etc.’

In the opinion, pages 197 and 198, Mcllvaine, J., 
uses the following language in reference to this 
rule of construction:



6
‘Now, it must be remarked that the rule of 

construction referred to above, can be used only as 
an aid in ascertaining the legislative intent, and 
not for the purpose of confining the operation of a 
statute within limits narrower than those intended 
by the lawmaker. It affords a mere suggestion to 
the judicial mind that, where it clearly appears 
that the lawmaker was thinking of a particular 
class of persons or objects, his words of more 
general description may not have been intended 
to embrace those not within the class. The sugges­
tion is one of common sense. Other rules of con­
struction are, however, equally potent, especially 
the primary rule, which suggests that the intent of 
the legislature is to be found in the ordinary mean­
ing of the words of the statute. Another well- 
established principle is, that even the rule re­
quiring the strict construction of a penal statute, 
as against the prisoner, is not violated by giving 
every word of the statute its full meaning, unless 
restrained by the context. ’

We find that this case has been cited by the 
courts of many other states and the principle there 
laid down followed.

The court of appeals of Missouri, in the case of 
State v. Williams, 35 Mo. App., 541, refer to this 
rule as follows:

‘ The rule for the construction of statutes, 
“ that where the particular words of a statute are 
followed by general,—as if, after the enumeration 
of classes of persons or things, it is added, ‘ and 
all others, ’—the general wTords will be restricted in 
meaning to objects of the like kind with those 
specified,”  will not be applied where the applica­
tion of the rule would be in the face of the evident 
meaning of the legislature, the object of the rule 
being not to defeat but to carry out the legislative 
intent; and so, where the expression in a statute



7
is special or particular, but the reason is general, 
the expression should be deemed general; and an 
interpretation must never be accepted that will 
defeat its own purpose, if it will admit of any 
other reasonable construction.’

We especially call attention to this case on ac­
count of the many citations contained in the opinion 
construing the ruling.

We also cite on this subject 1 Sutherland Statu­
tory Construction (2 ed.), Section 437; Gillock v. 
The People, 171 111., 307; McReynolds v. The People, 
230 111., 623; United States Cement Co. v. Cooper, 172 
Inch, 599.

Turning now to the statute under ivhich this ac­
tion was brought, and looking at the evident intent 
of the legislators, from the language of the statute 
itself we find that they were evidently intending to 
give every citizen equal rights in public places to 
which they were accustomed to go, either for accom­
modation or amusement. The legislature did not 
have in mind specially certain places which they 
name and others of a similar or like kind, but the 
object they had in view was the citizen. They in­
tended that there should be no discrimination on ac­
count of color or race to citizens who might apply at 
public places for either accommodation or amuse­
ment.

While the maxim insisted upon is a rule of statu­
tory construction which a court in construing this 
statute should consider, yet we think that it should 
not be permitted to override the clear intention of 
the lawmakers as evidenced from the plain reading 
of the statute itself, and we think that a public danc­
ing pavilion comes under the provisions of this stat­
ute, included in ‘ other place of accommodation and 
am.usement.’ ”
Following this same line of thought, the Court’s at­

tention is directed to Darius v. Apostolos, Colorado Su­
preme Court, 190 Pac., 510, decided December 1, 1919:



8
“ A bootblaoking stand is a place of public ac­

commodation within the meaning of a statute, im­
posing a penalty for refusal of accommodations of 
inns, restaurants, eating houses, barber-shops, pub­
lic conveyances, theatres, and all other places of 
public accommodation and amusement.

The rule of ejusdem generis does not apply 
where there is a diversity in character of the things 
specifically enumerated in the statute.

The legal presumption is that words and 
phrases in a statute are used in their usual sense 
unless the intent clearly appears to use them in a 
more restricted or different sense.

No constitutional rights of one operating a 
bootblacking stand are infringed by a statute for­
bidding him under penalty to refuse service to any 
person applying therefor.

The Colorado Civil Rights Statute, Section 1, 
chapter 61, Laws of 1895, page 139, provides that 
all persons shall be entitled to the equal enjoyment 
of the accommodations, advantages, facilities and 
privileges of inns, restaurants, eating houses, bar­
ber-shops, public conveyances on land or water, the­
atres, and all other places of public accommodation 
and amusement, etc.”
The Cuyahoga County Court of Appeals relied a 

great deal upon Burks vs. Bosso, 180 New York, 341. 
The Colorado Supreme Court in the case quoted above 
had the following to say with regard to this New York 
case:

“ The decision in the New York case was as as­
serted by defendant, but we are of the opinion that 
it is based upon false reasoning.”

It is, of course, well settled in Ohio, that the primary 
aids to a proper construction of a statute are its object 
and the ordinary meaning of the words used. The rule



9
is well settled in Morris v. Williams, 39 0. S., 554, where 
the court refused to limit the general wording of the 
statute and said:

“ It is a familiar rule in the construction of stat­
utes, that the language, where clear and compre­
hensive, is not to be limited in view of the partic­
ular instances which may be supposed to have led to 
its adoption, but the act should be held to embrace 
all cases fairly coming within its terms if they are 
also within its reason and spirit. Goshin v. Purcell, 
11 0. 8. 641, 649.”

In McNicoll v. Ives, 4 Ohio Dec., 76, at 78, the court 
said:

“ And it is now the well settled rule in the con­
struction of statutes in Ohio that words are to re­
ceive their ordinary and natural import, and that 

' the act should be held to embrace all cases coming 
fairly within its terms.”

Thus it appears by Ohio authority that the rule of 
construction under consideration does not exist for the 
purpose of confining the operation of a statute within 
limits narrower than those intended by the lawmaker and 
that this act should be so construed as to embrace all 
cases coming fairly within its terms.

Section 12940 of the General Code of Ohio was orig­
inally enacted in 1894, and the preamble is as follows:

“ Whereas it is essential to just government that 
we recognize and protect all men as equal before the 
law; and that a democratic form, of government 
should mete out equal and exact justice to all, of 
ivhatever nativity, race, color or persuasion, reli­
gious or political; and it being an appropriate object 
of legislation to enact great fundamental principles 
into law, therefore, * * *.”



10
The Court’s attention is further directed to Puritan 

Lunch Co. v. Forman, 45 C. C. R., at page 531:
“ Such discriminations are 'peculiarly galling to 

their victims. They carry with them a sense of 
ignominy because they are an injustice which the sub­
ject of it can neither resent nor remedy, and they 
publish him to the world as one who, ■without fault on 
his part, is to he gibbeted at the cross roads of public 
scorn and contumely. The height of this unmerited 
social outlawry, ivas reached when the Supreme Court 
of the United States declared judicially that the os­
tracised race could not be citizens and were regarded 
when our constitution was framed as having no 
rights which a white man was bound to respect.

To correct this judgment of barbarism teas the 
purpose of what is generally known as civil rights 
legislation, of which the statute being considered is 
a part.’”

At page 535:
“ The race over which the shield of the statute 

extends its protection, is not an inferior race; it 
is a belated race—made late in the race for success 
by the systematic and legalized robbery for two hun­
dred and forty years of that which alone makes a 
man ennobled—his right to labor and eat the bread 
which in the sweat of his own face he has earned.

There is sufficient history behind it—and indeed 
in its presence—to admonish the courts why and how 
it became necessary and commended its prohibition 
to the lawmaking power, and to administer it in the 
light of that history. Its purpose was to contradict 
the pitiless affront to a being created in the image 
of a common and impartial maker.”

Please see, also, Johnson v. Humphrey, etc. Co., 14 C. D., 
135; Guy v. Tri-State Amusement Co., 7 0. A., 509; and 
Anderson v. State, 30 C. D., 510.



11
Volume 7, pages 489 and 490, of Ohio Jurisprudence 

concurs with us when we say the decision rendered by 
the Cuyahoga County Court of Appeals in this case is in 
conflict with the Youngstown case, supra,—

“ The phrases public places and public accommo­
dation are, however, to. be limited by the specific 
designations which precede it. A  business to fall 
within the prohibition must be of the same general 
character and kind as the places specifically desig­
nated ; it must be a place of public character. How­
ever there is authority to the contrary, it being held 
that the general rule of construction of a penal 
statute, where certain persons or objects are named 
and followed by general terms that the general terms 
are construed to apply to persons or objects of a 
kind similar to those specified, does not apply to the 
Civil Rights Statute, where the meaning of the legis­
lature is plain.”

and then the author refers you to Youngstown etc. v. 
Tokus, supra.

Our Cuyahoga County Court of Appeals referred in 
its decision to Brown vs. Bell Co., 146 Iowa, page 89. 
A careful reading by this Court of said case, we are sure, 
will convince it that it is not clearly in point.

The Court held a coffee merchant who rented floor 
space from an association conducting a pure food show 
from which he advertised coffee by serving the same to 
prospective patrons without charge and for purely ad­
vertising purposes, but had no interest whatever in the 
pure food show or the admission fees charged therefor, 
could rightfully refuse to serve persons of a particular 
class although they paid the admission fee to the pure 
food show; and he was not, therefore, liable under the 
Civil Rights Statute for refusing to serve a colored per­
son with coffee.



12
We doubt very seriously whether or not a person 

could be held to have violated Section 12940 of the Gen­
eral Code of Ohio when he is giving merchandise or any­
thing else away. We repeat that we believe that this 
Court will agree with us when we say that the Iowa case 
is not a case in point.

The Illinois case cited was decided in 1895 and dealt 
with a drug store. Said case is not in point either.

CONCLUSION.
We believe that opportunity is here afforded for the 

Supreme Court of Ohio to definitely set at rest the con­
ditions as regards the applicability of our Civil Eights 
Statutes and of the intent of the legislative body when 
these statutes were enacted.

We have set forth herein the various legal tech­
nicalities which have been used by some courts in at­
tempting to thwart the legislative intent, embodied in the 
preamble and history of the Act, as well as the Act itself. 
These various technicalities are boiled down to three sig­
nificant contentions:

(1) That the Act is of a penal nature and, therefore, 
should be strictly construed.

(2) That the doctrine of ejusdem generis should 
apply by reason of a presumed similarity of a 
type of places specifically mentioned in the Act.

(3) That the Act applies to places of public owner­
ship rather than those relating to private owner­
ship.

It is generally conceded that, notwithstanding the 
doctrine of ejusdem generis or the rule for strict con­
struction of penal statutes, the legislative intent sur­
rounding a given enactment of law shall govern the in­
terpretation and application of the Act. This being true,



13
in. the face of the declared purpose of the Act as set forth 
in the preamble contained herein, it is but logical to con­
clude that neither the doctrine of strict construction, be­
cause of the penal nature of the Act, nor the doctrine of 
ejusdem. generis may be used as a rule of construction 
of this Act.

Attempting to classify the enumerated types of 
places into the nature of their ownership, that is public 
or private, is of no force. The statute definitely includes 
both privately and publicly owned businesses.

The New York case, supra, was based on the penal 
nature of the statute, and we have already noted herein 
that the penal nature of the Ohio statute has no bearing 
on this case. The Colorado decision, supra, was based 
on the dissimilarity of the places named in the Act, and 
sustains our position.

We definitely contend that the Civil Rights Stat­
utes of Ohio were enacted primarily and distinctly for 
the purpose of assuring equal privileges in all types of 
places of public accommodation or amusement, and that 
no place offering a service to the public or tendering 
merchandise for sale or hire can be regarded as exclu­
sive from the prohibitory provisions of this Act.

Law is like any other human institution and cannot 
successfully resist progress when crystallized public 
sentiment demands it. We feel that public sentiment has 
been crystallized in Ohio and does demand a more pro­
gressive interpretation of the Act than given it by the 
Cuyahoga County Court of Appeals.

The law is designed for man’s use and not for his 
enslavement. The legal pattern found adequate for yes­
terday should not be invoked where it no longer fits the 
needs of today.



14
Courts nowadays should be more concerned with 

substantial justice than the mere hair-breadth interpreta­
tions of laws.

If this decision is permitted to stand, every Negro 
in Ohio will be at the mercy of unscrupulous vendors.

During the hearing of this case in the Cuyahoga 
County Court of Appeals, everyone admitted, including 
the judges of that court, that said court’s decision means 
that a corner grocery store could refuse to sell a loaf of 
bread to a Negro because he was a Negro; that any de­
partment store could refuse to sell a Negro a suit of 
clothes; and that no retail store and no drug store in 
Ohio would be required to serve Negroes.

As we have tried to indicate hereinbefore, such an 
interpretation of the statute, when one contemplates its 
history, the preamble, and crystallized public sentiment, 
is perfectly stupid.

W herefore, we believe that this Court should grant 
this motion, seeking an order directing said Court of 
Appeals to certify its record to this Court.

Respectfully submitted,

C hester K. G illespie and 
N orman L . M oG hee ,

Attorneys for Plaintiff and 
Appellant.



15
APPENDIX I.

IN THE COURT OF APPEALS. 
S tate of O h io , E ig h th  D istrict, 

Cuyahoga C o u nty .

No. 15,405.

H arvey, I n c .,

Plaintiff in Error, 
vs.

E llen  S issle,

Defendant in Error.

OPINION. 
June 29th, 1936.

(E rror to the  M u n icipal  Court of Cleveland ,) 

L ieghley , P.J.
The plaintiff Ellen Sissle recovered a judgment 

against the defendant, Harvey, Inc., for the sum of One 
Hundred Dollars based upon a claim that she was re­
fused service in a store of the defendant in violation of 
Section 12,940 General Code. This section, so far as per­
tinent, reads as follows:

‘ ‘ D enial  of P rivileges at I nns and  O th er  P laces 
by  R eason of C olor. Whoever, being the proprietor 
or his employee, keeper or manager of an inn, res­
taurant, eating house, barber-shop, public convey­
ance by land or water, theatre or other place of pub­
lic accommodation and amusement, denies to a citi­
zen, except for reasons applicable alike to all citizens 
and regardless of color or race, the full enjoyment of



16
the accommodations, advantages, facilities or privi­
leges thereof, or, being a person who aides or incites 
the denial thereof, * # *”

This case was presented to us for review on error. 
The plaintiff claims that this retail store maintained 
by defendant to sell apparel for women is comprehended 
within this Act. The defendant denies it. This is the 
issue upon which the case must be determined.

The question is whether or not the general language 
contained in the Act ‘ ‘ or other place of public accommo­
dation and amusement”  is limited in its application to 
the particular words or particular activities theretofore 
mentioned and specified in the Act. It should be noted 
that these specific words relate principally to places 
maintained for lodging or providing food or public con­
veyance or theatres. Of course, any business by what­
ever name of which any specific or particular word or 
phrase used in the Act is definitive is controlled thereby. 
There is no specific mention in the Act of retail stores 
or the professions or any of the many other occupations 
and trades in which the citizens of the State engage that 
are unlike and dissimilar to those specified.

It has long been a rule of statutory construction in 
this State that whenever general words follow particular 
words, the application of the general wTords must be lim­
ited to things of the same kind and character as those 
specified. The only exception to this rule is any instance 
in which its application results in an apparent limit or 
defeat of the legislative intent evidenced by the language 
and apparent purpose of the Act itself.

If the legislative intent was general and all-inclusive 
as claimed by counsel for plaintiff, it would have been a 
very simple matter to have used general language only.



17
The fact that particular words and phrases were em­
ployed and these particular activities thereby empha­
sized rebuts any contention that the intent was general 
and all-comprehensive. This Court would be legislating 
to construe the general words following the particular 
in the manner urged and would be doing so in defiance 
of the well and long established rule of statutory con­
struction.

If the legislative intent was an all-embracing Act, 
then that body engaged in a tautological performance in 
writing Section 25 into the Liquor Control Act in 1933. 
(Section 6064-25 G. C.) Likewise, when it wrote Section 
9401 and Section 12954 General Code into the Statutes 
relating to any company engaged in the insurance busi­
ness imposing punishment for any discrimination.

For cases dealing with this subject of construction 
in Ohio reference is made to Volume XI, Page’s Com­
plete Ohio Digest, (last edition) page 642.

Also the following section under the title “ Civil 
Rights”  in Volume VII, Ohio Jurisprudence, page 494, 
Section 26:

“ R etail S tobes.—Retail stores are private busi­
nesses, not intended to be included within the Civil 
Rights statute. A drug store is not included within 
the statute, although it has a soda fountain business, 
which is merely an adjunct to the drug business. ’ ’
The general law relating to this rule is stated and 

summarized in Vol. V, Ruling Case Law, page 586 in the 
following language:

“ And so where the law enumerates certain places 
such as inns, eating houses, theaters, and public con­
veyances, and concludes with a general clause cov­
ering ‘ all other places of public accommodation and 
amusement,’ entitling all persons to the full and



18
■equal accommodations therein, it is clearly estab­
lished as a rule of construction that if, after enumer­
ating certain places of business on which a duty is 
imposed or for which a license is required, the same 
statute then employs some general term to embrace 
other cases, no other cases will be included in the 
general term except those of the same general char­
acter or kind as those specifically enumerated.”
It will be noted that this text is supported by emi­

nent authority. Included within the cases listed in the 
foot notes are:

Cecil vs. Green, 161 111. 265;
Burke vs. Bosso, 180 N. Y. 341;
Brown vs. Bell Co., 146 la. 89.

It is doubtful if any reported case of any court of 
well recognized standing and authority can be found any­
where in conflict with those hereinbefore cited or referred 
to supporting this rule that compels our conclusion.

Counsel for plaintiff emphasizes the language of the 
opinion in the case of Youngstown Railway Company vs. 
Tokus, 4 Ohio App. page 276. The holding in this case 
is that a dancing pavilion is within the statute. We 
agree therewith as such a place as was involved is clearly 
a public place of amusement. Much that the court said 
in its opinion is obiter. It cites cases dealing with public 
places. It cites none wherein a business that is at least 
to some extent a private business involving to some ex­
tent the constitutional right of private contract is con­
sidered and decision rendered in respect thereto. This 
decision involving a dance pavilion does not conflict with 
the holding in the case at bar involving a retail store.

In olden times we were taught that the right of 
private contract was a constitutional guaranty. If a 
farmer had grain or cattle to sell or a manufacturer had



19
machinery to sell or a merchant had merchandise to sell, 
we were told that he could sell it whenever, to whomso­
ever and upon whatever terms he chose. He could re­
fuse to sell to a German, Irishman, Negro, Jew or any 
other person for any or no reason. It is now said that 
this former concept must be modified to the extent that 
anyone who offers the market price for his wares may 
enforce the sale. Before this modification of the right 
of private contract becomes organic law, it should at 
least receive express legislative declaration.

The majority of this Court are of the firm conclu­
sion that these general words relate only to places of 
similar character and kind to those specifically men­
tioned. Retail stores are private businesses not with­
in the provisions of the Civil Rights Statute as now 
framed. Whatever our private ideas may be in the 
matter, this rule of statutory construction in force in 
Ohio and other states compels us to hold that this judg­
ment is contrary to law.

The remedy of the plaintiff and all others who are 
unfortunately in her position and claim to have similar 
grievances lies with the legislature through an amend­
ment to this statute.

The judgment is reversed as contrary to law and 
final judgment entered for plaintiff in error.

T eebell, J ., concurs in  the judgm ent.

L evine , J., dissents.

Counsel for Plaintiff in Error:
M esses. Q u in n , H obning  & L a P orte.

Counsel for Defendant in Error:
Chester K . G illespie , E sq.



20

APPENDIX II.

No. 752,837.
IN THE MUNICIPAL COURT OF CLEVELAND. 

S ta te  of Oh io , C uyahoga C o u n ty , s s .

E l l e n  S is s l e ,

Plaintiff,
vs.

H a rvey , I n c .,

Defendant.

OPINION.

D r u c k er , J. :

This is an action for damages brought by the plain­
tiff, a colored person, to subject the defendant to the 
statutory liability imposed by Sec. 12941, G. C. The peti­
tion avers in substance that the plaintiff, a citizen, was 
denied the full enjoyment of the accommodations, ad­
vantages, facilities or privileges of the Women’s Ap­
parel Shop, owned and operated by the defendant, for 
reasons not applicable alike to all citizens and regardless 
of color or race but on account of her color, and in viola­
tion of Sees. 12940 and 12941 of the General Code.

The defendant interposes a demurrer to the peti­
tion on the ground that it does not state facts sufficient 
to constitute a cause of action. The question for deci­
sion on this demurrer is whether the defendant’s shop 
and place for the retail sale of women’s apparel is a 
place of “ public accommodation”  within the meaning of 
G. C. 12940.



21
It is urged on the part of the defendant that a wom­

en’s apparel shop is not a place of public accommoda­
tion within the meaning of the statute. The statute, how*- 
ever, naming inns, restaurants, eating houses, barber 
shops, conveyances by land or water, and theaters, then 
reads: “ or other place of public accommodation and 
amusement” ; and it is claimed that defendant’s shop 
does not come within the term “ other place of public ac­
commodation and amusement. ”  It is also urged that this 
is a penal statute and should be strictly construed; that 
the maxim ejusdem generis should be applied in the con­
struction of this statute; that where certain persons, ob­
jects or things are named and followed by general terms, 
the general terms should be construed to apply only to 
objects, persons or things of similar or like kind. The 
plaintiff, on the other hand, contends that this rule of 
statutory construction is not exclusive and should not be 
employed to defeat the clear intent of the legislature in 
enacting this statute.

It is, of course, well settled in Ohio, that the primary 
aids to a proper construction of a statute are its object 
and the ordinary meaning of the words used. The rule is 
well settled in Morris v. Williams, 39 0. S. 554, where 
the court refused to limit the general wording of the 
statute and said:

“ It is a familiar rule in the construction of stat­
utes, that the language, where clear and compre­
hensive, is not to be limited in view of the particular 
instances which may be supposed to have led to its 
adoption, but the act should be held to embrace all 
cases fairly coming within its terms if they are also 
within its reason and spirit. Goshin v. Purcell, 11 
0. S. 641, 649.”
In McNicoll v. Ives, 4 Ohio Dec. 76, at 78, the court 

said:



22
“ And it is now the well settled rule in the con­

struction of statutes in Ohio that words are to re­
ceive their ordinary and natural import, and that the 
act should be held to embrace all cases coming fairly 
within its terms.”

The court cited among a number of other Ohio cases that 
of Morris v. Williams, supra. In both the Morris case 
and McNicoll case the rule of construction now urged by 
this defendant was insisted upon.

A statutory expression similar to that in the instant 
case was construed by the Supreme Court in Woodworth 
v. State, 26 0. S. 196. The statute read as follows:

“ That if any person shall abuse any judge or 
justice of the peace; resist or abuse any sheriff, con­
stable, or other officer, in the execution of his office, 
the person so offending,”  etc.

Mcllvaine, J., used very pertinent language in that case 
in reference to this rule of construction:

“ Now, it must be remarked that the rule of con­
struction referred to above, can be used only as an 
aid in ascertaining the legislative intent, and not for 
the purpose of confining the operation of a statute 
within limits narrower than those intended by the 
lawmaker. It affords a mere suggestion to the 
judicial mind that, where it clearly appears that the 
lawmaker was thinking of a particular class of per­
sons or objects, his words of more general descrip­
tion may not have been intended to embrace those 
not within the class. The suggestion is one of com­
mon sense. Other rules of construction are, how­
ever, equally potent, especially the primary rule, 
which suggests that the intent of the legislature is to 
be found in the ordinary meaning of the words of the 
statute. Another well-established principle is, that 
even the rule requiring the strict construction of a 
penal statute, as against the prisoner, is not violated



by giving every word of the statute its full meaning, 
unless restrained by the context.”
Thus it appears by Ohio authority that the rule of 

construction under consideration does not exist for the 
purpose of confining the operation of a statute within 
limits narrower than those intended by the lawmaker 
and that this act should be so construed as to embrace 
all cases coming fairly within its terms.

In Youngstown Ry. Co. v. Tokus, 4 Ohio App. 276, a 
public dance pavilion was held to be a place of public 
amusement within the meaning of the statute under con­
sideration. The defendant in that case urged the same 
rule of construction as is urged in this case and the court, 
after endorsing the quotation from the opinion of Judge 
Mcllvaine, supra, said, at page 281:

“ Turning now to the statute under which this 
action was brought, and looking at the evident intent 
of the legislators, from the language of the statute 
itself we find that they were evidently intending to 
give every citizen equal rights in public places to 
which they were accustomed to go, either for ac­
commodation or amusement. The legislature did 
not have in mind specially certain places which they 
name and others of a similar or like kind, but the 
object they had in view was the citizen. They in­
tended that there should be no discrimination on ac­
count of color or race to citizens who might apply at 
public places for either accommodation or amuse­
ment.

While the maxim insisted upon is a rule of 
statutory construction which a court in construing 
this statute should consider, yet we think that it 
should not be permitted to override the clear inten­
tion of the lawmakers as evidenced from the plain 
reading of the statute itself, and we think that a pub­
lic dancing pavilion comes under the provisions of



24
this statute, included in ‘ other place of accommoda­
tion and amusement.’ ”
This statute is commonly called the Civil Rights Act, 

and was originally enacted in 1894. We may find enlight­
enment as to its object both in the preamble to the orig­
inal enactment and the judicial expressions of Ohio courts 
pertaining thereto. The preamble as found in the Re­
vised Statutes, 4426-1-2, is as follows:

“ Whereas it is essential to just government that 
we recognize and protect all men as equal before the 
law; and that a democratic form of government 
should mete out equal and exact justice to all, of 
whatever nativity, race, color or persuasion, reli­
gious or political; and it being an appropriate object 
of legislation to enact great fundamental principles 
into law, therefore, * # *”

and some of the pertinent expressions found in the cases 
are as follows:

“ It will be noticed that the legislature declares 
the purpose of these statutes by the preamble to be, 
to enact a great fundamental principle into law * * * 
It was without doubt the intention of the legislature 
to enact into positive law what has come to be rec­
ognized as justice, that the colored man shall not be 
refused equal privileges with other people in these 
public places * *

Johnson v. Humphrey, etc. Co. (1902), 14 C. D.
135.

‘ ‘ The statute in question does not prevent the pro­
prietor of any place of public accommodation from 
refusing to serve any person, who, by reason of his 
disorderly conduct and habits, is objectionable to 
him or his patrons; but in the exercise of such right 
of refusal he must not discriminate against a man 
solely on account of his race and color. We must 
treat all citizens irrespective of color, race, precisely



25
alike * * *. The statute in question is based upon 
the Fourteenth Amendment * * #. The inhibition 
contained in the Fourteenth Amendment was in­
tended to secure to a recently emancipated race all 
the civil rights that the dominant race theretofore 
had enjoyed.”

Fowler v. Benner (1912), 23 0. D. 59.

“ Turning now to the statute under which this 
action is brought, and looking at the evident intent of 
the legislators, from the language of the statute 
itself we find that they were evidently intending to 
give every citizen equal rights in public places to 
which they were accustomed to go * * * the object 
they had in view was the citizen. They intended that 
there should be no discrimination on account of race 
or color to citizens who might apply at public places 
for either accommodation or amusement.”

Youngstown, etc. By. Co. v. Tokus, supra.

‘ ‘ Said sections were passed by our legislature not 
for an imaginary, but a real purpose.”

Guy v. Tri-State Amusement Co., (1917), 7 0. A. 
509.

“ Its policy and purpose are well known and the 
courts have consistently administered it in the spirit 
of its adoption and intent, which was to prevent dis­
crimination in public enjoyments and privileges, 
based on favoritism of race, color or other adven­
titious differences among those entitled to be 
served. ’ ’

Anderson v. State, (1918), 30 C. D. 510.

“ It is enough that this is the very thing which 
the statute we are administering denounces and for­
bids. There is sufficient history behind it—and in­
deed in its presence—to admonish the courts why 
and how it became necessary and commended its pro-



26
hibition to tbe law-making power, and to administer 
it in the light of that history. Its purpose was to 
contradict the pitiless affront to a being created in 
the image of a common and impartial maker * * *. 
It is not for the courts to argue for the wisdom of 
the law they are sworn to administer in its integ­
rity. But there is reason for reminding litigants 
that the spirit of law should be observed in courts, 
when elsewhere there is a general disposition to ig­
nore and condemn it.”

Puritan Lunch Co. v. Forman, 35 C. D. 526.

In Young v. Pratt (1919), 11 Ohio App. 346, our own 
Court of Appeals said that Sec. 12941, G. C. is “ unambig­
uous.”  The history and purpose of the statute are also 
discussed in 7 Ohio Juris. 463, et seq., and especially at 
page 469.

In Fowler v. Benner, supra, it was held that a place 
of public accommodation means a place where the wants 
and desires of those who frequent it may be supplied for 
consideration. This Court believes that definition to be 
sound and applicable to the instant case. Certainly there 
is no difference in regarding the defendant’s store as a 
place. It is equally clear that as a place offering wom­
en’s apparel for sale it is within the meaning of the 
statute. Accommodation is defined in Webster’s as being 
whatever supplies a want or affords ease, refreshment or 
convenience; or anything furnished which is desired or 
needful. See 1 Corpus Juris 518.

The question remains whether defendant’s place of 
business is a public place. On the allegations of the 
petition admitted for the purposes of this demurrer, we 
think there can be no serious question but that it is a 
public place, open to all the people whose needs it may 
satisfy for a consideration. In other words that it is no



27
different from any other place of business which offers 
its wares to the general public, who is able or willing 
to pay the price therefor.

Having in mind the declared object of the statute 
and the spirit in which it has been consistently construed 
by the courts of Ohio, we are of the opinion that the peti­
tion states a cause of action.

In view of the wealth of Ohio authority on the sub­
ject, we do not feel constrained to regard the citations 
from other jurisdictions which are necessarily based upon 
the particular statute in those jurisdictions. The case 
of Denwell v. Foerster, 12 Nisi Prius (N. S.) 329, a case 
decided by the Common Pleas Court of Franklin County, 
has been cited to us. It was there held that a soda foun­
tain was not within the meaning of the statute. The rea­
soning employed in that case does not commend itself 
to this Court.

Our attention has also been called to the case of 
Keller v. Koerbes, 61 0. S. 388, where the Supreme Court 
held that a place where intoxicating liquors was sold at 
retail was not a place of public accommodation or amuse­
ment. It is sufficient to say in connection with that case 
that the court felt compelled to reach the conclusion it 
did by reason of the then express state legislative policy 
against the existence of such places at all. There is no 
such counter-policy to be considered in this case. On 
the contrary, the whole legislative policy of Ohio with 
respect to discrimination against the citizens on the basis 
of race or color is consistent with the conclusion the 
court has reached in this case. Therefore, the demurrer 
should be overruled.

L e w is  D r u c k e r ,

Judge.
May 18, 1935.



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No. 26,162.

In the Supreme Court of Ohio

A ppe a l  F rom

T h e  C ourt op A ppe a l s  of C uyahoga  C o u n ty .

ELLEN SISSLE, 
Plaintiff-Appellant,

VS.

HARVEY, INC., 
Defendant-Appellee.

BRIEF OF DEFENDANT-APPELLEE  
OPPOSING MOTION TO CERTIFY.

Q u in n , H o rn in g  & L aP o r te ,

900 National City Bank Building, 
Cleveland, Ohio,

Attorneys for Defendant-Appellee.

T h e  G a t e s  L e g a l  P u b l is h in g  Co., Cl e v e l a n d , O h io



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INDEX.

History of Case..............................................................  1
Facts ................................................................................ 3
Civil Eights Statutes..................................................... 3
Grounds of Motion to Certify.....................................  5
Argument on the Law................................................. 5
Conclusion ......................................................................  10

Appendix:
Court of Appeals Opinion. . .................................. 12

Authorities Cited.

Cecil vs. Green, 161 111. 264; 43 N. E. 1105.............. 9
Dartmouth College Case, 4 Wheat. 666...................... 7
Davis vs. Theatre, 17 C. C. (N. S.) 495.....................  4
Demvell vs. Forester, et al., 12 0. N. P. (N. S.) 329 7
Fargo vs. Meyers, 4 0, C. 275.....................................  4
■Goff vs. Savage, 122 Wash. 194; 210 Pac. 374.......... 8

Ohio General Code:
Section 12940 ........................................................  3,6
Section 12941 ........................................................  3

Ohio Jurisprudence, Vol. 7, Par. 2, Page 468.............. 7
Ohio Jurisprudence, Volume 7, Par. 26, Page 494. . . .  8
1 Thompson Corporation, Par. 22...............................  7
Throckmorton’s Edition of the Ohio General Code 

Table of Contents................................................... 3
Youngstown Park & Falls Railway Company vs.

Tokus, etc., 4 Ohio Appeals 281..................... 2, 5,10





No. 26,162.

In the Supreme Court of Ohio

A p p e a l  F rom

T he C o u rt  op A ppe a l s  op C uyahoga  C o u n ty .

ELLEN SISSLE,
Plaintiff-Appellant,

vs.
HARVEY, INC.,

Defendant-Appellee.

BRIEF ON BEHALF OF DEFENDANT-APPELLEE.

The parties will he referred to as they appeared in 
the Municipal Court of the City of Cleveland, wherein 
Appellant was Plaintiff and Appellee was Defendant.

HISTORY OF CASE.

This case originated in the Municipal Court of Cleve­
land, Appellant filed suit against Appellee for damages 
alleging a violation of the Civil Eights Statute (Ohio 
General Code Section 12940) in that Appellee, while op­
erating a “ Women’s Wearing Apparel Shop”  refused to 
wait upon or serve Appellant. Appellee filed a Demurrer 
to said Petition, which was overruled by Judge Lewis 
Drucker, who wrote the Opinion cited on page 20 of Ap­
pellant’s Brief.

The Appellee, excepting to said ruling, filed its An­
swer and the case, in due course, came on for trial before 
Judge Oscar Bell of said Municipal Court, a jury having

Italics and bold face emphasis throughout are ours.



2
been waived and resulted in a judgment being rendered 
in favor of Appellant against Appellee in the sum of One 
Hundred Dollars ($100.00) and the costs.

From said judgment Appellee appealed to the Court 
of Appeals of Cuyahoga County and said Court reversed 
the finding of the lower Court and entered a final judg­
ment in favor of Appellee. It is by reason of such re­
versal and final judgment that the case is now in this 
Court on a Motion to Certify.

It was urged by Appellant in the Court of Appeals 
that the decision of said Court in the case at bar was in 
direct conflict with the decision in the case of Youngs­
town Park and Falls Railway Company vs. ToJcus, etc., 
4 Ohio Appeals 281, and this alleged conflict is again 
urged in Appellant’s Brief, although the Court of Ap­
peals of Cuyahoga County in a clear and concise opinion 
(See Appendix, page 12) distinguished the cases and 
pointed out the absurdity of contending that a conflict 
could exist between said cases, when the subject matter 
of each was entirely different, namely, “ a public dance 
hall”  and “ a Women’s Wearing Apparel Shop.”  How­
ever, Appellant, being consistent as well as persistent, 
reiterates this so-called conflict.

THE FACTS.

Insofar as this Motion to Certify is concerned the 
facts may, to some extent, be conceded, namely, that the 
Appellant was colored and of African descent and that 
the Appellee owned and operated a retail store known as 
a “ Women’s Wearing Apparel Shop”  in the Terminal 
Tower Building in Cleveland, Ohio.



CIVIL EIGHTS STATUTES.
Ohio General Code— Section 12940. Denial of 

privileges at inns and other places by reason of 
color. Whoever, being the proprietor or his employe, 
keeper or manager of an inn, restaurant, eating- 
house, barber-shop, public conveyance by land or 
water, theatre or other place of public accommoda­
tion and amusement, denies to a citizen, except for 
reasons applicable alike to all citizens and regard­
less of color or race, the full enjoyment of the accom­
modations, advantages, facilities or privileges there­
of, or, being a person who aides or incites the denial 
thereof, shall be fined not less than fifty dollars nor 
more than five hundred dollars or imprisoned not less 
than thirty days nor more than ninety days, or both.

Ohio General Code— Section 12941. Further 
penalty. Whoever violates the next preceding sec­
tion shall also pay not less than fifty dollars nor more 
than five hundred dollars to the person aggrieved 
thereby to be recovered in any court of competent 
jurisdiction in the county where such offense was 
committed.

We will first consider the nature, character and con­
tent of said Statutes as they exist on the Statute books 
of this State.

The sections alleged in plaintiff’s petition, as the 
foundation of this case, namely, General Code 12940 and 
12941, are found in the following subdivision of the Ohio 
General Code. (We are quoting verbatim from the Table 
of Contents of the Throckmorton Edition of the Code):

“ Part Fourth: Penal 
Title I Felonies and Misdemeanors

* * * #. . *
Chapter 10. Violations of Personal Eights 12940 to 
12956-2.”

3



4
From the above, we find that when these sections 

were enacted by the Legislature, they were intended to 
be and are penal statutes.. This is apparent from the 
Title and classification under which they are carried and 
the further fact that one who violates said sections is 
amenable to both a fine and imprisonment. The Courts 
of this State, in addition to those of other states, have, 
without exception, definitely held these Statutes to be 
penal. We call attention to the following language used 
by our own Court, to w it:

“ The Civil Rights Law imposing a forfeit of 
$100.00 (now $500.00) and also a fine or imprison­
ment on any person who violates it, is highly penal 
and to be strictly construed * * # etc.”

Fargo vs. Meyers, 4 C. C. 275.

As further proof of the fact that said Statutes are 
penal, we find that one who acts as an “ aider or abet­
tor”  is subject to prosecution the same as the principal 
and if this is the law and the cases so hold, then un­
questionably the Statute must be penal or there could 
be no “ aiders or abettors.”

We cite the following case in support of the above 
contention:

“ Aiding or inciting a denial of civil rights under 
General Code 12940, is a distinct and separate offense 
and one guilty of it is punishable, notwithstanding 
he whom he aided or incited has been convicted of 
the concomitant offense.”

Davis vs. Theatre, 17 C. C. (N. S.) 495.

Therefore, by reason of the interpretation placed on 
said sections by our Courts, as well as the wording of 
the Sections themselves, it is apparent that said Sec­
tions are penal in fact as in form..



5
The courts universally hold that the Statute being a 

penal Statute and in its very nature criminal must be 
strictly construed. In the case of Schultz vs. Cambridge, 
38 0. S. 659, the Court said “ where the act is made pun­
ishable by fine and imprisonment, the words in which 
the offense is defined and punishment prescribed must 
be strictly construed whether they are found in the stat­
ute, or in the ordinance or by-law. Any general words 
following particular or specific words, must, ordinarily, 
be confined to things of the same kind as those specified. ’ ’

GROUNDS OF MOTION TO CERTIFY.

After a careful study of Appellant’s Brief, we find 
but two points raised for consideration of this Court:

First. That the decision rendered by the Court 
of Appeals of Cuyahoga County in the case at bar, 
is in direct conflict with the Youngstown Park and 
Falls Railway Company vs. Tokus, etc., 4 Ohio Ap­
peals 281.

Second. That this retail store or “ Women’s 
Wearing Apparel Shop,”  owned and operated by 
Appellee, is a place of public accommodation within 
the meaning of Section 12940 of the General Code 
of Ohio.

ARGUMENT ON THE LAW.

We will discuss the above mentioned grounds in the 
order named.

Appellant contends that there is a direct conflict be­
tween the decision in the case at bar and the Youngstown 
Railway Company vs. Tokus {supra), we fail to see either 
a conflict or the slightest similarity between said cases. 
In the Tokus case the Court held that a “ public danc­
ing pavilion”  is within the meaning of the term, “ or 
other place of public accommodation and amusement ’ ’ as



6
used in Section 12940. In the case at bar the Court held 
that “ this retail store”  was not within the meaning of 
said Statute. Surely nothing could be more dissimilar 
than the operation of a “ public dance pavilion”  and the 
operation of “ a retail store.”  We readily concur with 
the Court’s finding in the Tokus case that a public dance 
pavilion comes fairly and squarely within the exact lan­
guage of the Civil Rights Statute since it is essentially 
and actually a place of public amusement.

But to attempt, as Appellant does, to stretch said 
decision to embrace a retail store is quite beyond any 
legal comprehension.

We feel that the reasoning and conclusion, as set 
forth in the Court of Appeals’ Opinion, distinguishes 
these cases better than any effort on our part to amplify 
said Court’s Opinion. Accordingly, we respectfully re­
fer this Court to said Opinion as set forth in toto in the 
Appendix hereto on page 12.

The second contention of Appellant is that “ this 
retail store”  is a place of public accommodation within 
the meaning of Section 12940 of the General Code of 
Ohio.

The business of defendant as alleged in plaintiff’s 
Petition and as established by the evidence at the trial 
was the operation, by the defendant, a private corpora­
tion, of a “ Women’s Wearing Apparel Shop.”  Clearly, 
therefore, if defendant comes within the purview of the 
above quoted section, it must be in the classification “ or 
other place of public accommodation ”

The defendant in this case is a “ Private Corpora­
tion,”  which is defined by Bouvier as “ Private Corpo­
rations are those which are created wholly or in part, for 
purpose of private emolument. ’ ’



7
In the oft quoted Dartmouth College case (4 Wheat. 

666), we find the following language used by the illustri­
ous Mr. Justice Storey:

“ Another division of corporation is into private 
and public. * * # Strictly speaking public corpora­
tions are such only as are founded by the govern­
ment for public purposes.”

We find that Judge Thompson in his learned work 
(1 Thompson Corporation, Par. 22) considers that a 
more practical conception would be to divide the corpo­
rations into three classes: public-municipal corporations 
to promote the public interests; corporations technically 
private but of quasi public character, such as railroads, 
inns, hotels, etc.; and corporations strictly private.

From the above, we urge that defendant herein did 
not operate a place of “ public accommodation”  which 
would be a railroad, inn, hotel or such an establishment 
as partook of the nature of a quasi public corporation, 
defendant operated a private corporation for profit.

We find the following statement of the law in Vol. 
7 of Ohio Jurisprudence, Par. 2, page 468:

“ A provision protecting the immunity of a per­
son from discrimination because of his race or color 
by the proprietor of a privately owned business, is 
depriving the proprietor of the right to contract with 
whomever he pleases.”

The outstanding authority in Ohio, which is to the 
same effect, is the case of Denwell vs. Forester, et al., 
12 O. N. P. (N. S.) 329, wherein the Court held an action 
for damages will not lie under the civil rights statute 
for refusal to serve a colored man a glass of soda from 
a soda fountain. The Court on page 322 pointed out the 
reason for its holding and said:



8
“ The conclusion is that a soda fountain is not 

within the meaning of this statute, and that the pro­
prietor of such a place has the absolute right to de­
cline to sell to white, black, German, Irish, Catholic 
or Protestant or any class of persons which he may 
choose to decline to serve, without giving rise to 
any right of action.”
In the State of Washington, the Court in interpret­

ing a similar statute said:
‘ ‘ Such a statute does not preclude the proprietor 

of a drug store from refusing to sell a soft drink at 
his soda fountain to a negro; the sale of soda water 
not being a matter of ‘ public accommodation.’ ”

Goff vs. Savage, 210 Pac. 374; 122 Wash. 194.

We, therefore, urge that the sale of “ Women’s 
Wearing Apparel”  is not and cannot be construed as a 
matter of “ public accommodation.”

We desire to quote a few words from that well rec­
ognized authority Ohio Jurisprudence in Volume 7, Par. 
26, page 494:

“ Retail stores are private businesses, not intend­
ed to be included within the Civil Rights Statute.”
We further urge that the defendant in this case was 

engaged in conducting a private business, organized as 
a private corporation for the sole purpose of making a 
profit. Defendant’s business was in no sense a “ public 
accommodation”  but purely a private venture in which 
the public had no rights or interest and therefore, de­
fendant had a perfect legal right to conduct its busi­
ness in such a manner as it saw fit and owed no duty to 
the public either for accommodation or service.

In conclusion we submit the defendant, who admit­
tedly by plaintiff’s Amended Petition operated not an 
inn, restaurant, eating house, barber shop, public con-



9
veyance by land or water, theatre or other place of pub­
lic accommodation and amusement but on the contrary 
a private business of selling WOMEN’S WEARING AP­
PAREL, therefore defendant, even without invoking the 
strict rule of interpretation required in the case of penal 
statutes, could not be found to be operating a place with­
in the terms defined in General Code 12940 and there­
fore, could not legally be found guilty of violating said 
section.

The case of Cecil vs. Green, 161 111. 265; 43 N. E. 
1105, cited in Court of Appeals’ Opinion is not only a 
case cited as an authority in every work dealing* with 
the interpretation of the Civil Rights Statutes, but also 
is a clear and comprehensive statement of the law per­
taining to the liability created by said Statute and dis­
tinguishing those amenable to the penalty therein pro­
vided, we feel that our Brief would be incomplete with­
out a quotation from said authority:

“ It is a clearly established rule of construction 
that after an enumeration of certain places of busi­
ness on which a duty is imposed, or a license re­
quired, and the same statute then employs some gen­
eral terms to embrace other cases, no other cases 
will be included within the general term except those 
of the same character or kind as specifically enumer­
ated.”

‘ ‘ The personal liberty of an individual in his busi­
ness transactions and his freedom from restrictions, 
is a question of the utmost moment; and no con­
struction can be adopted by which an individual 
right of action will be included, as controlled within 
a legislative enactment, unless clearly expressed in 
such enactment, and certainly included within the 
constitutional limitation on the power of the legis­
lature. Nothing in this provision requires a physi­
cian to attend a patient, a lawyer to accept a re-



10
tainer, a merchant to sell goods, a farmer to employ- 
labor, unless of bis own volition, regardless of any 
reason, whether expressed or not. The g-eneral pro­
vision does not include the business of defendant 
(drug store) nor is it included within the terms 
specifically made. ’ ’

CONCLUSION.

In conclusion, we urge that the Youngstown Park 
and Falls Railway Company vs. Tokus, 4 0. A. page 276, 
was a case involving a public dance pavilion and as such 
is clearly a place of public amusement and therefore, 
comes squarely within the exact language of the Civil 
Rights Statute. All the authorities cited in the Tokus 
case {supra) as well as all of those contained in Ap­
pellant’s Brief, deal with places of either public accom­
modation or amusement. There is not a case cited cover­
ing a private business establishment.

Nor, has Appellant even attempted to answer the old 
and well established theory of law, pointed out in the 
Court of Appeals’ Opinion, namely, the right given by 
our Constitution to all persons engaged in a private busi­
ness or enterprise to contract with whomsoever he 
chooses on whatsoever terms he may make.

It is also our firm conviction that the general terms 
used by the legislature in the Civil Rights Statute, relate 
only to places of similar character and kind to those 
specifically mentioned. Retail stores are neither men­
tioned specifically nor can they be brought within the 
provisions of said statutes as they now exist.

In our opinion the strongest argument that can be 
advanced to show that the legislature when they enacted 
the Civil Rights Statute did not intend it to be all em­
bracing, is found in the fact that after the original Civil 
Rights Statutes were enacted, the legislature found it



11
necessary to broaden the scope of said statutes by en­
acting Section 6064-25 of the Ohio General Code under 
the Liquor Control Act and likewise Section 9401 and 
Section 12954 of the Ohio General Code, relating to com­
panies engaged in the insurance business, imposing a 
punishment for any one engaging in said business for any 
discrimination. Clearly as pointed out in the Court of 
Appeals’ Opinion, the enactment of these latter Stat­
utes would be a mere tautological performance, if, as 
Appellant contends, the original Statute was all embrac­
ing.

We, therefore, respectfully submit that Appellant’s 
Motion to Certify should be denied.

Respectfully submitted,

Q u in n , H o rning  & L aP o r te ,

Attorneys for Defendant-Appellee.



12
APPENDIX.

IN THE COURT OF APPEALS.
S tate of O h io , E ig h t h  D is t r ic t , 

C uyahoga C o u n ty .

N o. 15,405.

HARVEY, INC.,
Plaintiff in Error, 

vs.
ELLEN SISSLE, 

Defendant in Error.

OPINION.

June 29th, 1936.

( E rror to t h e  M u n ic ip a l  C o u rt  of Clev ela n d .) 

L ie g h l e y , P.J.
The plaintiff Ellen Sissle recovered a judgment 

against the defendant, Harvey, Inc., for the sum of One 
Hundred Dollars based upon a claim that she was re­
fused service in a store of the defendant in violation 
of Section 12,940 General Code. This section, so far 
as pertinent, reads as follows:

‘ ‘ D en ia l  of P r iv il e g e s  at I n n s  and O t h e r  P la ces 
b y  R eason of C olor. Whoever, being the proprietor 
or his employee, keeper or manager of an inn, restau­
rant, eating house, barber-shop, public conveyance 
by land or water, theatre or other place of public 
accommodation and amusement, denies to a citizen, 
except for reasons applicable alike to all citizens and 
regardless of color or race, the full enjoyment of the 
accommodations, advantages, facilities or privileges 
thereof, or, being a person who aides or incites the 
denial thereof, * * *”



13
This ease was presented to us for review on error. 

The plaintiff claims that this retail store maintained by 
defendant to sell apparel for women is comprehended 
within this Act. The defendant denies it. This is the is­
sue upon which the case must be determined.

The question is whether or not the general language 
contained in the Act “ or other place of public accom­
modation and amusement”  is limited in its application 
to the particular words or particular activities thereto­
fore mentioned and specified in the Act. It should be 
noted that these specific words relate principally to 
places maintained for lodging or providing food or pub­
lic conveyance or theatres. Of course, any business by 
whatever name of which any specific or particular word 
or phrase used in the Act is definitive is controlled there­
by. There is no specific mention in the Act of retail 
stores or the professions or any of the many other occu­
pations and trades in which the citizens of the State en­
gage that are unlike and dissimilar to those specified.

It has long been a rule of statutory construction in 
this State that whenever general words follow partic­
ular words, the application of the general words must 
be limited to things of the same kind and character as 
those specified. The only exception to this rule is any 
instance in which its application results in an apparent 
limit or defeat of the legislative intent evidenced by the 
language and apparent purpose of the Act itself.

If the legislative intent was general and all-inclusive 
as claimed by counsel for plaintiff, it would have been a 
very simple matter to have used general language only. 
The fact that particular words and phrases were em­
ployed and these particular activities thereby emphasized 
rebuts any contention that the intent was general and 
all-comprehensive. This Court would be legislating to



14
construe the general words following the particular in 
the manner urged and would he doing so in defiance of 
the well and long established rule of statutory construc­
tion.

If the legislative intent was an all-embracing Act, 
then that body engaged in a tautological performance in 
writing Section 25 into the Liquor Control Act in 1933. 
(Section 6064-25 G. C.) Likewise, when it wrote Sec­
tion 9401 and Section 12954 General Code into the Stat­
utes relating to any company engaged in the insurance 
business imposing punishment for any discrimination.

For cases dealing with this subject of construction 
in Ohio reference is made to Volume XI, Page’s Com­
plete Ohio Digest, (last edition) page 642.

Also the following section under the title “ Civil 
Rights”  in Volume VII, Ohio Jurisprudence, pag*e 494, 
Section 26:

“ R e ta il  S to bes .— Retail stores are private busi­
nesses, not intended to be included within the Civil 
Rights Statute. A drug store is not included with­
in the statute, although it has a soda fountain busi­
ness, which is merely an adjunct to the drug busi­
ness.”
The general law relating to this rule is stated and 

summarized in Vol. V, Ruling Case Law, page 586, in 
the following language:

“ And so where the law enumerates certain places 
such as inns, eating houses, theatres, and public con­
veyances, and concludes with a general clause cover­
ing ‘ all other places of public accommodation and 
amusement,’ entitling all persons to the full and 
equal accommodations therein, it is clearly estab­
lished as a rule of construction that if, after enumer­
ating certain places of business on which a duty is 
imposed or for which a license is required, the same



15
statute then employs some general term to embrace 
other cases, no other cases will be included in the 
general term except those of the same general char­
acter or kind as those specifically enumerated.”

It will be noted that this text is supported by emi­
nent authority. Included wthin the cases listed in the 
foot notes are:

Cecil vs. Green, 161 111. 265;
Burke vs. Bosso, 180 N. W. 341;
Brotvn vs. Bell Co., 146 la. 89.

It is doubtful if any reported case of any court of 
well recognized standing and authority can be found any­
where in conflict with those hereinbefore cited or referred 
to supporting this rule that compels our conclusion.

Counsel for plaintiff emphasizes the language of the 
opinion in the case of Youngstown Railway Company vs. 
Tokus, 4 Ohio App. page 276. The holding in this case 
is that a dancing pavilion is within the statute. We agree 
therewith as such a place as was involved is clearly a 
public place of amusement. Much that the court said in 
its opinion is obiter. It cites cases dealing with public 
places. It cites none wherein a business that is at least 
to some extent a private business involving to some ex­
tent the constitutional right of private contract is con­
sidered and decision rendered in respect thereto. This 
decision involving a dance pavilion does not conflict with 
the holding in the case at bar involving a retail store.

In olden times we were taught that the right of 
private contract was a constitutional guaranty. If a 
farmer had grain or cattle to sell or a manufacturer had 
machinery to sell or a merchant had merchandise to sell, 
we were told that he could sell it whenever, to whomso­
ever and upon whatever terms he chose. He could re-



16
fuse to sell to a German, Irishman, Negro, Jew or any 
other person for any or no reason. It is now said that 
this former concept must he modified to the extent that 
anyone who offers the market price for his wares may 
enforce the sale. Before this modification of the right 
of private contract becomes organic law, it should at 
least receive express legislative declaration.

The majority of this Court are of the firm conclu­
sion that these general words relate only to places of 
similar character and kind to those specifically men­
tioned. Retail stores are private businesses not within 
the provisions of the Civil Rights Statute as now framed. 
Whatever our private ideas may be in the matter, this 
rule of statutory construction in force in Ohio and other 
states compels us to hold that this judgment is contrary 
to law.

The remedy of the plaintiff and all others who are 
unfortunately in her position and claim to have similar 
grievances lies with the legislature through an amend­
ment to this statute.

The judgment is reversed as contrary to law and 
final judgment entered for plaintiff in error.

T errell, J concurs in the judgm ent.
L evine, J dissents.

Counsel for Plaintiff in Error:
M essrs. Qu in n , H orning & L aP orte.

Counsel for Defendant in Error:
C h e s t e r  K. G il l e s p ie , E sq .











No. 26,162.

In the Supreme Court of Ohio

A ppeal, F rom
T h e  C ourt oe A ppeals oe C uyahoga C ountyr

ELLEN SISSLE, 
Plaintiff and Appellant, 

vs.
HARVEY, INC., 

Defendant and Appellee.

BRIEF OF AMICI CURIAE,
The American Civil Liberties Union,

The American League against War and Fascism, 
The National Negro Congress, and 
The International Labor Defense,

ON BEHALF OF PLAINTIFF AND APPELLANT.

George P alda,
Engineers Bldg., Cleveland, Ohio,

Attorney for American Civil Liberties 
Union, Amicus Curiae.

T h e  Ga t e s  L eg a l  P u b l is h in g  Co., Cl e v e l a n d , O h io





No. 26,162.

In the Supreme Court of Ohio

A ppeal F rom
T h e  Court oe A ppeals oe Cuyahoga Cou nty .

ELLEN SISSLE, 
Plaintiff and Appellant, 

vs.
HARVEY, INC., 

Defendant and Appellee.

BRIEF OF AMICI CURIAE,
The American Civil Liberties Union,

The American League against War and Fascism, 
The National Negro Congress, and 
The International Labor Defense,

ON BEHALF OF PLAINTIFF AND APPELLANT.

George P alda,
Engineers Bldg’., Cleveland, Ohio, 

Attorney for American Civil Liberties 
Union, Amicus Curiae.





No. 26,162.

In the Supreme Court of Ohio

A ppeal F rom
T he . C ourt of A ppeals of Cuyahoga Co u nty .

ELLEN SISSLE,
Plaintiff and Appellant,

vs.

HARVEY, INC., 
Defendant and Appellee.

BRIEF ON BEHALF OF 
PLAINTIFF AND APPELLANT.

This brief is filed by permission of the Court on be­
half of The American Civil Liberties Union, The Ameri­
can League against War and Fascism, The National 
Negro Congress and The International Labor Defense 
as amici curiae.

FACTS.
The facts involved in the case at bar are set forth in 

briefs of counsel and are not disputed.

ISSUE.

The sole issue is—did the Defendant invade Plain­
tiff’s rights in failing to extend accommodations to her 
in its place of business, because of her color, equal to 
accommodations extended to persons of the Caucasian 
race ?



2

Stated in blunter language the issue is—may a 
tradesman offer to sell to all the world and then, when a 
Negro offers to buy, insult and humiliate the Negro by 
refusing to deal with him or her on account of color?

ARGUMENT.

The discussion may be presented from two points of 
view—the narrow, legalistic point of view, inspired by a 
desire to confine the rights of the Negro within the nar­
rowest limits possible without a complete subversion of 
constitutional guarantees and the broad, tolerant, 
humane point of view, inspired by a desire to accord 
exact and impartial justice to all persons, regardless of 
color, creed or race.

That the purely legalistic point can be supported 
by some precedent goes without saying. The briefs of 
counsel refer to such precedents. If the second point of 
view cannot be sustained by judicial precedents, it can 
be and is sustained by the Federal and State Constitu­
tions, the Bill of Rights and the Statutes of Ohio, when 
viewed in the light of the evils they were designed to 
correct, and, in view of the political consciousness of the 
people, as recently demonstrated, it is a propitious time 
for the Courts to make precedents conformable to the in­
tents and spirit of the fundamental laws of our Land.

If the decisions of our Courts have not been in line 
with an enlightened interpretation of the fundamental 
law but evince a cramped, warped or prejudiced con­
struction, then such decisions should be scrapped with 
the Dred Scott Decision, and replaced by decisions, 
humane and tolerant, in keeping with advanced public 
opinion.

It is said that a farmer who has grain to sell or a 
merchant who has merchandise to sell has the constitu­



3
tional right to sell it to whom he pleases and to refuse to 
sell to any person for any reason. Of course the same 
argument applies with equal force to a hotel keeper, or 
a restaurateur or theatre owner, for each has some 
service or commodity to sell, and yet the Courts have 
held by virtue of Section 12940 of the General Code such 
purveyor of commodity or service may not refuse the 
same to any person on account of color or race on pain of 
incurring* the penalty provided by law.

This does not mean that the farmer should be pre­
vented from selling to whom he pleases or the merchant 
to whom he pleases. But, if the farmer goes into the 
market place and offers to sell his grain to the public or 
the merchant opens the doors of his store and offers to 
sell his merchandise to the public, on what principle of 
equity should he be accorded the privilege of choosing his 
buyer that is denied to the hotel or restaurant owner?

It is claimed that the distinction between the farmer 
and merchant on one hand and a hotel keeper, the res­
taurateur and the theatre owner is drawn by the statute, 
and the Courts cannot enlarge the scope of the statute.

The statute specifies “ inn, restaurant, eating house, 
barber shop, public conveyance on land or water,”  and 
then adds “ or other place of public accommodation.”  
If stores and market places are to be included as not 
within the meaning of “ other place of accommodation,”  
what possible act or thing does the phrase refer to since 
the specific things mentioned cover the whole range of 
accommodations except stores?

If the defendant may refuse to a Negro accommoda­
tions it offers to the public generally, so may any other 
merchant, including a druggist and a grocer with results 
that might obviously cause extreme distress or; even 
death.



4
It is submitted there is no question but what the 

defendant and merchants generally offering to sell to the 
public are included within the meaning of the statute, 
and that this conclusion is supported by the statute it­
self, when considered in connection with the evils it was 
designed to correct, which evils were too obvious to need 
more than reference to them here.

Some light is also shed upon this question by looking 
at the statute as originally passed on February 7, 1884, 
and then comparing it with the statute as it now reads.

In 81 Ohio Session Laws, page 15, we find the fol­
lowing :

SENATE BILL NO. 12.
A x  A ct

To protect all citizens in their civil and legal rights.
“ W hekeas, It is essential to just government that 

we recognize and protect all men as equal before the 
law, and that a democratic form of government 
should mete out equal and exact justice to all, of 
whatever nativity, race, color, persuasion, religious 
or political; and it being the appropriate object of 
legislation to enact great fundamental principles into 
law, therefore,

Section 1. Be it enacted by the General Assem­
bly of the State of Ohio, That all persons within the 
jurisdiction of said state shall be entitled to the full 
and equal enjoyment of the accommodations, advan­
tages, facilities and privilege of inns, public convey­
ances on land or water, theaters and other places of 
public amusement, subject only to the conditions and 
limitations established by law, and applicable alike 
to citizens of every race and color.”

It is a very unusual matter for a preamble to be at­
tached to a law, and it is significant that the Legislature



5
saw fit in this instance to attach it and then in language 
of such sweeping scope as to leave no room for doubt 
that the legislative intent was to prevent discrimination 
of any kind against colored persons or against any per­
sons whatsoever. If a colored man be denied a service 
accorded all white men who choose to avail themselves 
of it and he have no redress in law, would that be con­
sonant with the language of the preamble—“ It is essen­
tial to just government that we recognize and protect all 
men as equal before the law # * But for the Legisla­
ture to enunciate noble sentiments and pass laws effectu­
ating them does not help a victim of their breach if the 
Courts frustrate the law while commending the senti­
ments.

The Legislature soon found that the law as passed 
February 7, 1884 was not broad enough, and so on March 
27, 1884 it amended the law to read as follows:

SENATE BILL NO. 154.
A n A ct

To amend section 1 of an act entitled an “ act to 
protect all citizens in their civil and legal rights,”  
passed February 7, 1884.

“ Section 1. Be it enacted by the General Assem­
bly of the State of Ohio, That section one of said act 
to protect all citizens in their civil and legal rights, 
be amended as follows:

Section 1. That all persons within the jurisdic­
tion of said state shall be entitled to the full and 
equal enjoyment of the accommodations, advantages, 
facilities and privileges of inns, restaurants, eating- 
houses, barber-shops, public conveyances on land or 
water, theatres and all other places of public accom­
modation and amusement, subject only to the condi­
tions and limitations established by law, and appli­
cable alike to all citizens.”



6
If there is any doubt as to the intention of the Legis­

lature under the former more restricted wording of the 
statute, it would seem that such doubt is unquestionably 
removed by the amendment broadening the phraseology 
of the statute by adding “ all other places of public ac­
commodation.'’ '’

"When the statute is considered in the light of the 
abuses, inequalities, discrimination and gratuitous humil­
iation, it was designed to eradicate, in the light of the 
amendment above referred to and in the light of a grow­
ing and constantly accelerating tendency on the part of 
the general public toward a wiping out of racial and reli­
gious animosities and antagonisms supplanting them 
with friendship and democratic camaraderie can there be 
any doubt as to the proper solution of the question now 
before this Court?

The Court’s answer will either turn back the pages 
of progress, fill the souls of a large part of our popula­
tion with despair and open the doors to a more ruthless 
and wanton behavior toward a people oppressed and sup­
pressed through all the ages or the Court’s answer will 
point the way to a freer and happier life to millions of 
human beings; will dispel the gloom of inferiority en­
shrouding them; protect them from undeserved humilia­
tion and venomous discrimination, in short, grant to a de­
serving race struggling upward from the muck of vituper­
ation, hopelessness and despair to a place in the sunlight 
of those privileges and immunities guaranteed by the 
Bill of Rights and the Federal Constitution.

Respectfully submitted,

G eorge P alda,

Attorney for American Civil 
Liberties Union.



-V-

t|j| If ’ jl j H I ,





No. 26,162.

In the Supreme Court of Ohio

A ppeal from
T he Court of A ppeals of Cuyahoga Cou nty .

ELLEN SISSLE, 
Plaintiff and Appellant,

YS.

HARVEY, INC., 
Defendant and Appellee.

JOURNAL ENTRY
and

BRIEF ON BEHALF OF AMICUS CURIAE,
National Association for the Advancement of 

Colored People.

N ational A ssociation for. the A dvance­
m en t  of C olored P eople, Amicus Curiae, 

69 Fifth Avenue, New York, N. Y.,

By W illiam  H . H astie,
T hurgood M arshall,

Attorneys for Amicus Curiae.

T h e  Ga t e s  L eg a l  P u b l is h in g  Co., Cl e v e l a n d , O h io





No. 26,162.

In the Supreme Court of Ohio

A ppeal, from
T h e  Court of A ppeals of Cuyahoga C ou nty .

ELLEN SISSLE,
Plaintiff and Appellant, 

vs.
HARVEY, INC.,

Defendant and Appellee.

JOURNAL ENTRY.

Upon application and for good cause shown, it is 
hereby ordered that the National Office of The National 
Association for the Advancement of Colored People, 69 
Fifth Avenue, New York City, be permitted to file Brief 
amicus curiae herein, upon behalf of this plaintiff and 
appellant, in accordance with the rules of this Court.

Chief Justice.





No. 26,162.

In the Supreme Court of Ohio

A ppeal prom
T he  C ourt of A ppeals of C uyahoga Co u nty .

ELLEN SISSLE,
Plaintiff and Appellant,

YS.

HARVEY, INC.,
Defendant and Appellee.

BRIEF ON BEHALF OF
NATIONAL ASSOCIATION FOR THE ADVANCE­

MENT OF COLORED PEOPLE, AMICUS CURIAE.

FACTS.
The facts appear sufficiently in the Brief of Plaintiff 

and Appellant and, therefore, will not be stated in detail 
here.

ARGUMENT OF LAW.
I .

Importance and general significance of case.

This case presents the question whether Negroes 
may be denied service in retail stores despite the stat­
ute prohibiting discrimination in “ places of public ac­
commodation.”  Until this question is decided by this 
Court retail sellers in all fields throughout the State 
must be uncertain of the extent of their duty and liability 
to the customer in a situation of everyday occurrence.



4
To the more than 300,000 Negroes of Ohio the ques­

tion is even more important. Most of the members of 
the community have ready access to food, clothing and 
other necessaries only through the retail store. Their 
very existence is threatened when this access is cut off. 
Yet, the Court of Appeals of Cuyahoga County has con­
strued the statute prohibiting discrimination in places 
of public accommodation as permitting a refusal of 
service in that type of place of public accommodation 
most indispensable to the members of the community.

Probably because this type of discrimination has not 
occurred frequently in the past, no substantial body of 
law has developed in this or any other State concerning 
the application of the Ohio statute or any similar statute 
to such discrimination. This fact emphasizes the impor­
tance and the patently far reaching effect of the present 
case.

It is submitted that the significance of the interests 
here involved and the importance of this case to the 
general public should persuade this Court to review the 
decision of the Court of Appeals.

II.

The decision of the Court of Appeals is predicated upon 
a patently erroneous application of the doctrine of 
ejusdem generis.

The rationale of the decision of the Court of Appeals 
appears in the following quotation from the opinion of 
the Presiding Judge:

‘ ‘ The question is whether or not the general lan­
guage contained in the Act ‘ or other place of public 
accommodation and amusement’ is limited in its 
application to the particular words or particular 
activities theretofore mentioned and specified in the 
Act. # * *



5
“ It has long been a rule of statutory construction 

in this State that whenever general words follow par­
ticular words, the application of the general words 
must be limited to things of the same kind and char­
acter as those specified. * # * ”  (Brief of Appellant, 
Appendix, p. 16.)

the Court failed to apply the universally 
recognized rule of statutory construction that “ diversity 
in character in the kinds of business specifically enumer­
ated removes the case from the application of the doctrine 
of ejusdem generis”  (Darius v. Apostolos, 68 Colo. 323, 
190 Pac. 510 (1919)). Among the decisions applying that 
rule the following are typical:

Prussian v. United States, 282 U. S. 675 (1931);
Darius v. Apostolos, supra;
McReynolds v. People, 230 111. 623, 82 N. E. 945

(1907) ;
Phelps v. Commonwealth, 209 Ky. 318, 272 S. W. 

743 (1925) ;
State v. Eckhardt, 232 Mo. 49,133 S. W. 321 (1910).

State v. Eckhardt, supra, involved an indictment 
under a statute making it a crime for a parent to expose 
an infant in a “ street, field or other place”  with intent 
to abandon it. The defendant had abandoned a child in 
a street railway waiting station. In holding that such a 
place was among “ other places”  comprehended by the 
statute the Court said:

“ # * * It is very clear to us that the principle of 
ejusdem generis cannot be applied here, nor yet the 
doctrine of noscitur a sociis, for the words ‘ street’ 
and ‘ field,’ appearing in the statute, are not even 
remotely related, and neither derives any color from 
association with the other, but each stands as the 
representative of a distinct class. The meaning, 
then, of the general expression ‘ or other place,’ in







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In the Supreme Court of Ohio
A ppeal from

T he C ourt of A ppeals of C uyahoga County .

ELLEN SISSLE, 
Plaintiff and Appellant,

vs.

HARVEY, INC., 
Defendant and Appellee,

MOTION TO CERTIFY RECORD,
Proof of Service,

AMENDED NOTICE OF APPEAL.

C hester K. G illespie and 
N orman L . M cG hee ,

501 Erie Building, Cleveland, Ohio, 
Attorneys for Appellant.

Qu in n , H orning & L aP orte,
900 National City Bank Building,

Cleveland, Ohio,
Attorneys for Appellee.

T h e  Ga t e s  L e g a l  P u b l is h in g  C o., Cl e v e l a n d , O.





No

In the Supreme Court of Ohio

A ppeal from
T he C ourt of A ppeals of Cuyahoga Cou nty .

ELLEN SISSLE,
Plaintiff and Appellant, 

vs.
HARVEY, INC.,

Defendant and Appellee.

MOTION TO CERTIFY RECORD AND  
PROOF OF SERVICE.

Now comes Ellen Sissle, appellant herein, and rep­
resents that the Court of Appeals of Cuyahoga County, 
Ohio, on the 29th day of June, 1936, in an action pending 
in said court wherein the appellant herein was appellee 
and the appellee herein was appellant, rendered a judg­
ment in favor of said appellant and against this appel­
lant, reversing a judgment rendered in favor of this ap­
pellant in the Municipal Court of the City of Cleveland, 
Ohio.

Typewritten copies of Brief containing statement of 
the questions presented and a statement of the case as 
required by the rules of this Court, will be filed in ac­
cordance with the rules of this Court and to which 
reference is here made.

Appellant further represents that she has heretofore 
filed Notice of Appeal in the Court of Appeals and a simi­
lar notice in this Court, as required by law; and further



2

that said case is one of both public and great general 
interest, and that prejudicial error has intervened in the 
proceedings had in said Court of Appeals, all within the 
meaning of Article IV, Section 2 of the Constitution of 
the State of Ohio, and by reason thereof this Honorable 
Court has jurisdiction to and ought to review said judg­
ment. And said appellant will also file herein her assign­
ments of error, as required by law and the rules of this 
Court.

W herefore, said appellant makes application for an 
order directing said Court of Appeals to certify its rec­
ord to the Supreme Court.

C hester K. G illespie and 
N orm as  L . M cG hee ,

Attorneys for Appellant.

Acknowledgment.

Service of a copy of the foregoing Motion is hereby 
acknowledged this 23d day of July, 1936.

M essrs. Q u in s , H orsin g  & L aP orte, 

Attorneys for Appellee.



In the Court of Appeals
Of Cuyahoga Co u nty .

ELLEN SISSLE,
Plaintiff and Appellant,

.vs.
HARVEY, INC.,

Defendant and Appellee.

AMENDED NOTICE OF APPEAL.
(Filed in the Court of Appeals July 20, 1936.)
The above-named plaintiff and appellant hereby 

gives notice of appeal to the Supreme Court of Ohio from 
a judgment rendered by the Court of Appeals, in the 
above-entitled cause, on the 29th day of June, 1936. Said 
appellant was plaintiff in the Municipal Court of Cleve­
land. The judgment of the Court of Appeals was a re­
versal of a certain judgment rendered in the Municipal 
Court of Cleveland, for the sum of one hundred 
($100.00) dollars and costs in favor of this appellant and 
against this appellee. Said Court of Appeals entered 
final judgment for this appellee.

Said appeal is on questions of law and is taken to 
the Supreme Court of Ohio,

(1) On condition that a motion to certify be allowed 
by the Supreme Court.

Chester Iv . G illespie and 
N orman L. M cG hee ,

Attorneys for Appellant,
501 Erie Building,

CHerry 1835.

No. 15,405.



Acknowledgment.

We, the undersigned attorneys of record for ap 
pellee, hereby acknowledge receipt of copy of the fore 
going Notice, this 20th day of July, 1936.

M esses, Qu in n , H orning & L aP orte, 

Attorneys for A-ppellee,
900 Nat’l. City Bank Bldg.

4





I



No. 26,162.

In the Supreme Court of Ohio

A ppeal from
T he ; C ourt of A ppeals of C uyahoga Co u nty .

ELLEN SISSLE, 
Plaintiff and Appellant,

VS.

HARVEY, INC., 
Defendant and Appellee.

APPLICATION FOR REHEARING OF MOTION  
TO CERTIFY.

Chester. K. G illespie,
N orman L. M cG hee-,

501 Erie Building,
Cleveland, Oliio,

Attorneys for Appellant.

T h e  Ga t e s  L e g a l  P u b l is h in g  Co., Cl e v e l a n d , O h io





No. 26,162.

In the Supreme Court of Ohio

A ppeal from
T he Court of A ppeals of Cuyahoga Cou nty .

ELLEN SISSLE,
Plaintiff and Appellant, 

vs.
HARVEY, INC.,

Defendant and Appellee.

APPLICATION FOR REHEARING OF MOTION 
TO CERTIFY.

The appellant, pursuant to Rule 20 of this Court, 
files this application for rehearing of her motion for an 
order to require the Court of Appeals of Cuyahoga 
County to certify its record, which motion was heard and 
overruled, and respectfully asks that a rehearing be 
granted for the following reasons. This Court undoubt­
edly overlooked the vital points stressed in the various 
Briefs filed on behalf of appellant.

Did the decision in the Sissle case conflict with that 
in the Tokus case?

See Appellant’s Brief, page 7—
“ The legislature did not have in mind specially 

certain places which they name and others of a simi­
lar or like kind, but the object they had in view was 
the citizen. They intended that there should be no 
discrimination on account of color or race to citizens 
who might apply at public places for either accom­
modation or amusement.

4 Ohio App. 281.”



2
Also, Appellant’s Brief, page 11—

‘ ‘ However there is authority to the contrary, it 
being held that the general rule of construction of 
a penal statute, where certain persons or objects are 
named and followed by general terms that the gen­
eral terms are construed to apply to persons or ob­
jects of a kind similar to those specified, does not 
apply to the Civil Rights Statute, where the mean­
ing of the legislature is plain.

Vol. 7, pages 489 and 490 of Ohio Juris.”
Did the rule of Ejusdem Generis apply?
Appellant’s Brief, page 8—

“ The rule of ejusdem generis does not apply where 
there is a diversity in character of the things specif­
ically enumerated in the statute.

The legal presumption is that words and phrases 
in a statute are used in their usual sense unless the 
intent clearly appears to use them in a more re­
stricted or different sense.

The decision in the New York case (180 N. Y., 
341) was as asserted by defendant, but we are of the 
opinion that it is based upon false reasoning.

190 Pac., page 510.”
Appellant’s Brief, page 5—

“ It is urged that this is a penal statute and 
should be strictly construed; that the maxim ejusdem 
generis should be applied in the construction of this 
statute; that where certain persons, objects or things 
are named and followed by general terms, the gen­
eral terms should be construed to apply to objects, 
persons or things of similar or like kind.

This is a well-recognized rule of statutory con­
struction which is intended to aid the court in deter­
mining the true meaning of a statute, but it should 
not be used to limit or abridge the well-defined mean­
ing of the legislature gathered from the ordinary



3
meaning of the words used in the statute, keeping in 
mind the object that the legislature had in its enact­
ment.

Tolcus case.”
See Appellant’s Brief, page 6, which quoted 26 Ohio 

State, 196, as follows:
“ The suggestion is one of common sense. Other 

rules of construction are, however, equally potent, 
especially the primary rule, which suggests that the 
intent of the legislature is to he found in the ordinary 
meaning of the words of the statute. Another well- 
established principle is, that even the rule requiring 
the strict construction of a penal statute, as against 
the prisoner, is not violated by giving every word of 
the statute its full meaning, unless restrained by the 
context. ’ ’
Appellant’s Brief, page 9, quoted 39 Ohio State, page 

554, as follows:
“ It is a familiar rule in the construction of stat­

utes, that the language, where clear and compre­
hensive, is not to be limited in view of the particular 
instances which may be supposed to have led to its 
adoption, but the act should be held to embrace all 
cases fairly coming within its terms if they are also 
within its reason and spirit.”
Did this Court notice Judge Lieghley’s language, 

page 16 of Appellant’s Brief?—
“ It has long been a rule of statutory construction 

in this State that whenever general words follow 
particular words, the application of the general 
words must be limited to things of the same kind and 
character as those specified. The only exception to 
this rule is any instance in which its application re­
sults in an apparent limit or defeat of the legislative 
intent evidenced by the language and apparent pur­
pose of the Act itself.”



4
Appellant’s Brief, page 1.0, we quoted 45 0. C. R., 

513, as follows:
“ Such discriminations are peculiarly galling to 

their victims. They carry with them a sense of 
ignominy because they are an injustice which the 
subject of it can neither resent nor remedy, and they 
publish him to the world as one who, without fault 
on his part, is to be gibbeted at the cross roads of 
public scorn and contumely. The height of this un­
merited social outlawry was reached when the Su­
preme Court of the United States declared judicially 
that the ostracized race could not be citizens and were 
regarded when our constitution was framed as hav­
ing no rights which a white man was bound to re­
spect.

To correct this judgment of barbarism was the 
purpose of what is generally known as civil rights 
legislation, of which the statute being considered is 
a part.”
On the hearing of the Motion to Certify the Record, 

this Court itself raised the constitutional question as did 
Judge Lieghley in his opinion-

It is respectfully urged, therefore, that the appel­
lant’s constitutional rights, both state and national, have 
been violated. Article I of the Constitution of the State 
of Ohio, paragraph 1:

“ All men are, by nature, free and independent, 
and have certain inalienable rights, among which are 
those of enjoying and defending life and liberty, ac­
quiring, possessing, and protecting property, and 
seeking and obtaining happiness and safety.”
See Volume 7, Ohio Juris., 477:

“ All men are, by nature, free and independent, 
and have certain inalienable rights, among which are 
those of enjoying and defending life and liberty, ac­
quiring, possessing, and protecting property, and



5
seeking and obtaining happiness and safety. Thus 
are civil rights guaranteed by the very first words of 
the Ohio Constitution.”
Amendment X IV  of the Constitution of the United 

States, section 1:
“ All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State where­
in they reside. No State shall make or enforce any 
law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State 
deprive any person of life, liberty, or property, with­
out due process of law; nor deny to any person with­
in its jurisdiction the equal protection of the laws.”
Because of the foregoing, we are asking this Court 

to reconsider its decision and allow the Motion to Certify.

Respectfully submitted,

Chester K . G illespie,

N ormah L .  M cG h e e ,

Attorneys for Appellant.









Argued by
Chables H . T uttle

Court ot Appeals
of the State of New York

H ubert T. D elany , R oy W ilk in s  
and E. F rederick M orrow,

Plaintiffs-Appellants,

against

Central V alley  C ole Clu b , I n c ., 
Defendant-Respondent.

B R IEF O F P LA IN T IF F S -A P P E LLA N TS

Pursuant to leave granted by this Court, plain­
tiffs appeal from a judgment of the Appellate 
Division, First Department, entered November 
2, 1941, which affirms a final judgment of the 
Supreme Court, New York County, dated June 
17, 1941, dismissing their complaint.

Nature of the Action

Plaintiffs sued (fols. 13-29) to recover statu­
tory damages for their unlawful exclusion by de­
fendant from its public golf course, “ a place of 
public accommodation, resort or amusement,”  
within the meaning of Sections 40 and 41 of the 
Civil Rights Law which prohibit any discrimina­
tion at such public places against any persons 
whatsoever “ on account of race, creed, or color.”



2

For the convenience of the Court the statute is 
set forth in full in Appendix A to this brief 
(p. 37, post). The sole exception in the stat­
ute is of a “ club * * * distinctly private in its 
nature.”

A further foundation of plaintiffs’ action, is 
in the provisions of Article I, Section 11, of the 
Constitution of the State of New York as em­
bodied in the recent Constitutional Amendment 
adopted by the last Constitutional Convention 
and approved by vote of the people of the State 
of New York on November 8, 1938. This Amend­
ment is as follows:

“ No person shall be denied the equal pro­
tection of the laws of this state or any sub­
division thereof. No person shall, because of 
race, color, creed or religion, be subjected 
to any discrimination in his civil rights by 
any other person or by any firm, corporation, 
or institution, or by the state or any agency 
or subdivision of the state.”

The Facts

The facts of this case are simple. Its issues, 
however, are not only momentous and far reach­
ing, but, especially at this time in the nation’s 
history, of the greatest public importance and 
concern.

On October 5, 1940 (fols. 57-63) plaintiffs, three 
prominent members of the negro race, were pub­
licly excluded, under the most humiliating cir­
cumstances, though offering to pay the usual 
greens fees paid by the general public (fol. 17), 
from the defendant’s golf course at Central 
Valley, New York.

The record shows this golf course (R. pp. 21- 
37) was being openly operated as a public course.



3

The discrimination practiced against them by the 
defendant was based solely upon the ground that 
they were Negroes (fols. 60-2, 107-8).

The plaintiff Delany testified that as he was 
signing his name on the register as usual, the 
Club’s golf professional came up to him and the 
following ensued (fol. 60):

“  ‘ I have got some bad news for you,’. I 
said, ‘ What bad news?’ He said, ‘ I don’t 
want to hurt your feelings.’ I said, ‘ You 
cannot hurt my feelings. What is the bad 
news?’ He said, ‘You cannot play here.’ 
I said, ‘What do you mean, I cannot play 
here? I have been playing here for four or 
five years.’

“ He said, ‘ They had a meeting of the 
Board of Directors about two weeks ago and 
they told me not to let any more colored 
fellows play here.’ I said, ‘ How did that 
happen?’ He said, ‘ You remember you were 
here about a month ago, and two other col­
ored fellows with you, and after that they 
had a meeting, and they said that colored 
people would not be permitted to play here’. ”

The plaintiff Wilkins testified (fols. 107-8):
“ Q. When you reached the office Mr. 

Delany and Mr. Morrow were both there? 
A. Yes.

“ Q. And the pro was there? A. Yes, the 
pro was there.

“ Q. Did you hear anybody say anything? 
A. I got in just as Mr. Delany was saying, 
‘What do you mean you have bad news for 
me?’ Then the conversation continued about 
colored people could not play there, and Mr. 
Delany said that he had played there before, 
and it was open to the public, and he could 
not understand why he could not play today, 
and he brought two guests up from New 
York and substantially as the Commissioner 
testified.”



4

The Trial Court stated that “ the testimony 
(of the two plaintiffs) is accepted without quali­
fication”  (fol. 332). The plaintiff Morrow was 
in California at the time of the trial (fol. 105).

Two of the plaintiffs were leaders of the col­
ored race. Hon. Hubert T. Delany, a member of 
the bar, is a Commissioner of Taxes of the City 
of New York (fol. 57); and the plaintiff Roy 
Wilkins is Assistant-Secretary of the National 
Association for the Advancement of Colored 
People (fol. 102).

Prior to this public and humiliating expulsion, 
Commissioner Delany had played the same golf 
course with other prominent persons both of his 
own and of the white race on an average of at 
least twice a year for four or five years, includ­
ing twice before in the 1940 season (fols. 60, 65, 
74-5, 84, 91, 98-100, 109, 235, 258-61). These 
other persons were the Commissioner’s personal 
friends; and neither he nor they were “ members”  
of the Club or in possession of “ courtesy cards” . 
They were never asked for an introduction or 
courtesy cards (fol. 95). They had visited the 
course and played on it because of the adver­
tisement that it was “ public”  and “ open to the 
public”  (fols. 60, 65, 74-5, 91, 98-100, 109, 258-61). 
On each of these prior occasions Mr. Delany had 
bought golf balls, received score cards and was 
given a receipt for the payment of the stipulated 
fees (fols. 63-4, 72, 258-261). The register in 
which he had signed his name on these prior 
occasions was significantly entitled “ Hotel Reg­
ister”  (Pis.’ Exs. 5 and 7, pp. 96, 101, 103). 
As a result of these prior visits, he was on 
friendly terms with the Club’s golf pro (fols. 
59, 62).

Although the defendant tried to pose at the 
trial as a private club with its facilities limited 
to a private membership, the proof to the con-



5

trary was conclusive. On July 31, 1937, the 
defendant was organized (to quote its own “ Cer­
tificate of Incorporation” ) :

“ Pursuant to Article Two of the Stock Cor­
poration Law” .

And the opening paragraph of the certificate 
reads:

“ We, the undersigned, desiring to form a 
stock corporation pursuant to the provisions 
of Article Two of the Stock Corporation Law 
of the State of New York, do hereby certify 
as follows:”

[See Appendix B annexed to this brief (p. 41, 
post), being a full reprint, pursuant to the stipu­
lation at folio 347, of Plaintiffs’ Exhibit 6, “ Cer­
tificate of Incorporation of Central Valley Golf 
Club, Inc.” , which certificate is only party printed 
in the Record (fol. 289). The stipulation author­
ized the submission of the original Exhibit in 
full, to wit: a certified copy of the complete cer­
tificate.]

Article 2 of the Stock Corporation Law, under 
which Article the defendant’s certificate thus re­
cites it as incorporated, is entitled: “ Formation 
of Business Corporations” .

Section 5 of this Article 2 requires that a cer­
tificate set forth the “ business purpose or pur­
poses”  for which the corporation is formed, the 
number of shares of stock, the par or no par 
value thereof, etc.

According to Section 3 of the General Corpora­
tion Law “ a stock corporation is a corporation 
having shares of stock and which is authorized 
by law to distribute dividends to the holders 
thereof” . On the other hand, Section 2 of the 
General Corporation Law classifies a member-



6

ship corporation under a “ non-stock corpora­
tion” .

In Point I hereof (p. 10, post) we set forth in 
detail the contents of the defendant’s certificate 
of incorporation, and show that by its own re­
citals it is a stock corporation with a capital 
consisting of 200 shares of stock without par 
value, and that it not only enumerated a number 
of “ business”  purposes designated as such but 
also professed a purpose to maintain a “ public”  
golf course and to derive revenue from it and 
from other distinctly commercial enterprises. We 
show also that paragraph “ Second”  thereof con­
cluded by endowing the defendant with all powers 
(p. 43, post)

“ which may now or hereafter be lawful for 
the corporation to do or exercise under and 
in pursuance of the Stock Corporation Law 
of the State of New York, or any other law 
that may be now or hereafter applicable to 
the corporation.”

For years, and in furtherance of the “ busi­
ness”  purposes which it had declared by its cer­
tificate of incorporation and by organizing as a 
“ business corporation”  under Article 2 of the 
Stock Corporation Law, the defendant had held 
out its golf course as “ public” , the defendant 
seeking thereby to secure from the public rev­
enues to aid in maintaining itself.

Signs along the public roads to its golf course 
and shown to have been maintained there for 
years with the defendant’s knowledge (fol. 167), 
bore a directional arrow and the legend in large 
letters (Pis.’ Exs. 2, 3, 4, pp. 93-5):

“ G O L F  C L U B  

18 HOLES 

P U B L I C ”



7

These signs were mysteriously removed two 
months after this litigation was begun; and the 
lame explanation attempted would not deceive a 
child (fols. 2, 267-272).

Further signs posted by the defendant itself, 
near several entrances to its grounds, proclaimed 
its golf course (fols. 150-1):

“ OPEN TO THE PUBLIC.”

These latter signs added underneath in type 
so small as not to be readily visible to the trav­
eling public (fols. 88-90, 109), the pious phrase 
“ under club regulations.”  Aside from the total 
legal ineffectiveness of this phrase (Point II 
hereof, pp. 20-1, post), the obvious facts are that 
it affirmed rather than denied that the course was 
“ open to the public,”  and that it meant nothing 
more, and to the public patrons thus solicited 
could mean nothing more, than that the course 
was not free.

As further proof of the plainly public and com­
mercial character of the enterprise defendant 
was conducting on its premises, its own “ Hotel 
Register”  of patrons for the day on which the 
plaintiffs ’ humiliating expulsion took place and 
for four other days (Pis.’ Exs. 5, 7, 8 and 9) 
shows that its golf course was being regularly 
patronized by numerous members of the general 
public of various localities of three states, New 
York, New Jersey and Pennsylvania. None of 
them were “ members”  of defendant’s so-called 
“ club,”  except the few marked “ M”  (fol. 204); 
and all of them paid substantial sums of money 
to the defendant precisely as would be paid in 
any public place of amusement. (Same Exhibits; 
fol. 327 and fols. 200-206.) (See p. 20, post.)



8

Furthermore, this paying public supplied the 
overwhelming majority, 80 per cent, in fact, of 
the defendant’s total patronage. (Same exhibits.) 
How profitable was this business venture, for a 
small country organization seeking to support 
itself with the aid of revenue from the public, 
is shown by the calculation of its intake from 
the public for the use of its golf course on these 
five typical days. (See p. 21 of this brief, post.)

Throughout the trial the defendant made an 
attempt to claim that it had adopted certain 
“ rules”  governing the use of its golf course. 
But these alleged “ rules”  remained largely 
shrouded in mystery, and certainly no one had 
the audacity even to insinuate that there was, 
as to the defendant’s golf course, a recorded 
“ rule”  discriminating against the colored race. 
Some by-laws were produced (fols. 313-327), but 
no “ rules”  were ever produced. They were 
never even posted in full (fols. 170-1). There 
was even great doubt as to whether the defend­
ant’s golf professional, Mr. Yansick, in charge 
of its golf course, had ever been given a copy of 
them (fol. 197).

In fact, the officers of the defendant them­
selves seemed to know little or nothing about 
these “ rules”  (fols. 196, 198, 218, 219). The de­
fendant’s own golf professional displayed almost 
complete ignorance on this subject (fols. 218-9); 
and the Chairman of the Breens Committee was 
able to identify but one so-called “ member”  in 
defendant’s “ Hotel Register”  of the patrons of 
its golf course (fols. 199-201).



9

The Decisions of the Courts Below

The Trial Court held that “ plaintiff has failed 
to sustain the burden of establishing that the 
golf course maintained by the defendant was a 
place of public accommodation, resort or amuse­
ment”  (fol. 339), though the authorities are that 
the burden is just the other way around (pp. 
13, 19, 29, 31-2, post) ■ that defendant was in name 
a membership corporation, though its certificate 
of incorporation said the very contrary (fols. 
338-9); that its By-Laws gave it the character 
of “ a club,”  though that was not the issue (fols. 
333-5); that notwithstanding the use of the plain 
words “ public golf course”  and “ open to the 
public”  on its signs, the magic small-lettered 
phrase “ under club rules”  cancelled the effect of 
these signs and left meaningless the words “ pub­
lic”  and “ open to the public”  (fols. 337-8); “ that 
the statute here involved must be strictly con­
strued,”  though statutes for the protection of 
the civil rights of our citizens should be liberally 
construed if our free democracy is to have sub­
stance (fol. 343); and that even a golf course ad­
mittedly public in character might not fall within 
the prohibition of the statute (fol. 340).

The Appellate Division affirmed without opin­
ion.

Plaintiffs’ Position

Plaintiffs’ legal as well as their equitable and 
constitutional contentions are fully set forth here­
after in this brief and need not be repeated here. 
Their appeal involves questions of law only.



1 0

Plaintiffs earnestly desire, however, at this 
point, to make clear to the Court that in taking 
this appeal they do so not for any petty reasons 
of personal pique, revenge or mere pecuniary re­
ward, but rather, with the gravest sense of their 
responsibility in so doing, in order that the status 
not only of their own race but of all racial mi­
norities and religious groups in this great com­
monwealth as well as the meaning and intention 
of the new Constitutional amendment against 
racial and religious discrimination may be inter­
preted, clarified and finally defined by this Court.

P O IN T I

As a plain matter of fact and of law, the 
defendant was not a membership corporation 
at all but was a “business” corporation or­
ganized under the Stock Corporation Law for 
various commercial purposes set forth in its 
certificate of incorporation, among which 
were the operation for profit of a “public” 
golf course. It was in no sense a “club dis­
tinctly private in its nature.”

Hence, the exclusion of the plaintiffs from 
the defendant’s golf course was a violation of 
their rights under the C iv il Rights Law and 
the Constitutional Amendment of 1938.

The opinion of the Trial Court seems to have 
been based upon the following statement which 
can be conclusively demonstrated to be erroneous 
both in law and in fact (fol. 338):



1 1

“ The certificate must, however, be read in 
the light of the fact that the defendant is a 
membership and not a business corporation.”

A
The Certificate of Incorporation

In accordance with the stipulation as to ex­
hibits not printed in full in the record (fol. 347), 
we shall hand to the Court on the argument Plain­
tiffs ’ Exhibit 6, to wit: a certified copy of the 
defendant’s certificate of incorporation, a printed 
copy of which is attached to this brief as Appen­
dix B (p. 11, post). Only a portion of this ex­
hibit is printed in the record (fol. 289). The 
certificate of incorporation has never been 
changed (fol. 163).

That certificate twice recites on its face that 
the defendant is incorporated under “ Article Two 
of the Stock Corporation Law of the State of 
New York” . Article 2 is entitled:

“ Formation of Business Corporations” .

Section 5 of this Article authorizes three or 
more persons to “ form a stock corporation for 
any lawful business purpose or purposes” , and 
enumerates the required contents of a lawful cer­
tificate of incorporation under the Stock Corpo­
ration Law.

The defendant’s certificate of incorporation is 
drawn in exact accordance with this Section 5.

The defendant’s feeble pretense, therefore, of 
being a membership corporation is conclusively 
negatived by both the fact and the law. Under 
Section 2 of the General Corporation Law, a 
membership corporation is “ a non-stock corpora­
tion” ; and under Section 3 a business corpora­
tion is defined as:



1 2

“ 8. A ‘ business corporation’ is a corpo­
ration formed under and subject to the Stock 
Corporation Law, other than a moneyed cor­
poration, a railroad corporation, a trans­
portation corporation or a cooperative cor­
poration.”

On the other hand, Section 2 of the Member­
ship Corporations Law defines a membership cor­
poration thus:

“ The term ‘ membership corporation’ 
means a corporation not organized for pecu­
niary profit, incorporated under this chapter, 
or under any law repealed by this chapter.”

The provisions for incorporating a membership 
corporation and the required contents of its cer­
tificate of incorporation are set forth in Section 
10 of the Membership Corporations Law. That 
section expressly forbids incorporation under the 
Membership Corporations Law for “ a purpose 
for which a corporation may be created under 
any general law other than this chapter” . It 
makes no provision for capital stock, shares of 
stock, stockholders, any “ business”  purpose, or 
the operation of any public place or commercial 
enterprise for profit. It requires that such cer­
tificate shall be approved by a Justice of the 
Supreme Court. There is here no evidence of 
any such approval.

Furthermore, an examination of the defend­
ant’s certificate of incorporation shows that there 
were only three incorporators (p. 46, post). 
Section 5 of the Stock Corporation Law permits 
a minimum of three incorporators; but Section 10 
of the Membership Corporations Law requires a 
minimum of five incorporators.

Paragraph “ Third”  of the defendant’s certifi­
cate calls for the issue of 200 “ shares”  of stock



13

without par value as “ the capital of the corpora­
tion” . Paragraph “ Eighth”  designates the first 
directors who are to hold office “ until the first 
annual meeting of the stockholders” . Paragraph 
“ Ninth”  designates the first stockholders. Since 
1932 Section 40 of the Membership Corporations 
Law has forbidden a membership corporation to 
issue “ certificates of stock” .

Furthermore, paragraph “ Fourth”  of the de­
fendant’s certificate designates the Secretary of 
State as the corporation’s “ agent”  for the serv­
ice of process. This designation is required by 
Section 5 of the Stock Corporation- Law in con­
nection with the “ Formation of Business Cor­
porations” ; but there is no such requirement in 
Section 10 of the Membership Corporations Law 
in connection with the “ Formation of Member­
ship Corporations ’ ’.

The doctrine that the character and nature of a 
corporation is determined exclusively by the pro­
visions of its charter has been established and 
adhered to by this Court without exception.

In laying down this fixed principle, this Court 
said (People ex rel. Wall & H. St. R. Co. v. Mil­
ler, 181 N. Y. 328, p. 334):

“ * * * when we appeal to the reason of 
the thing it seems plain that the chartered 
privileges of a corporation as defined in its 
certificate of incorporation, which is invar­
iably framed in the language of the cor­
porators, should be the index to its rela­
tions to the State, rather than the possibly 
sporadic and shifting exercise of any one or 
more of a larger number of the powers dele­
gated to it.”

In other words, whatever may have been the 
secret provisions of this defendant’s alleged



14

“ rules”  affording, as was pretended, a conven­
ient “ off the record”  subterfuge in the case of 
these three plaintiffs, it is the certificate of in­
corporation, the formal document that is filed for 
record and open to the public for inspection, that 
is conclusive and controlling as to the nature of 
the corporation and its corporate purposes and 
powers.

Again, in Matter of DePeyster, 210 N. Y. 216, 
at p. 219, this Court held the rule in this respect 
to be as follows:

“ In order to determine the status of a 
corporation, and to ascertain the purposes 
for which it was incorporated, recourse must 
be had to the act by which it was incorpo­
rated or to its charter and the statute under 
the authority of which it was framed.”

To the same effect:
Matter of Beekman’s Estate, 232 N. Y.

365;
Matter of Kennedy’s Estate, 264 N. Y.

691 (affirming 240 App. Div. 20).

In the light of these authorities, an examina­
tion of the express “ purposes”  and “ powers”  
enumerated by the defendant in its own certifi­
cate of incorporation also leaves not the slightest 
doubt that it was and is, particularly as regards 
its golf course, a business corporation having all 
the powers given to such a corporation under 
the Stock Corporation Law and contemplating 
the securing of current revenue from the public.

Here are a few of the commercial ventures on 
which its Certificate of Incorporation authorized 
the defendant to embark:

(Fol. 297) “ In general to do any and all 
things and to exercise any and all powers



15

* * * which may now or hereafter be law­
ful for the corporation to do or exercise un­
der and in pursuance of the Stock Corpo­
ration Law of the State of New York * *

(Fols. 290-1) “ # * * To provide a golf
course at or near Central Valley in the 
County of Orange, State of New York; to lay 
out and maintain golf links and tennis courts
# * *; to lay out and prepare such grounds 
for golf and other athletic sports and other 
purposes, and to provide lavatories, refresh­
ment rooms and other conveniences in con­
nection therewith, and with a view thereto to 
enter into an agreement to furnish amuse­
ment, entertainment and diversion to the pub­
lic, * * # and to engage and to conduct the 
same as places of public or private amuse­
ment and diversion, and to grant concessions 
to individuals, companies or corporations, to 
conduct at such places of amusement partic­
ular businesses for the amusement and en­
tertainment of the public.”

(Fol. 292) “ * * * To buy, sell and deal
in all kinds of sporting goods and products 
required by persons frequenting the corpora­
tion’s property.”

(Fol. 293) “ To conduct the business of 
catering in all its lines; * * * and gener­
ally to do everything that those engaged in a 
similar line of business do.”

(Fol. 295) “ To purchase, sell and gener­
ally deal in, at retail * * # beer, ale, porter 
and all kinds of alcoholic and non-alcoholic 
liquors; to take out and do business under 
licenses and permits, state and Federal, for 
the sale of liquors.”

(Fols. 295-6) “ To sell and prepare food 
and drink of all kind; to do a general restau­
rant and lunchroom business; * * *.”



16

B

The Law

Not only are the foregoing bnsiness and profit- 
seeking purposes contained in the defendant’s 
certificate of incorporation and the fact that its 
very certificate is filed pursuant to the Stock 
Corporation Law sufficient to fulfill the conclu­
sive presumption of the law that it is merely a 
business corporation and not a private club or 
membership corporation at all, but, as a plain 
matter of law, it was legally impossible for it to 
be incorporated as a private club or membership 
corporation with such powers in its certificate.

Section 10 of the Membership Corporations 
Law prohibits the formation of a membership 
corporation for any purpose, including commer­
cial purposes, “ for which a corporation may be 
created under any general law other than this 
chapter.”

See Bernstein v. Moses, Secretary of State, 
133 Misc. 513, in which the action of the Secre­
tary of State in refusing to accept for filing a 
certificate of incorporation of a purported mem­
bership corporation which contained commercial 
powers was sustained.

See also
Columbia University Club v. Higgins, 23 

Fed. 572.

Section 12 of the Membership Corporations 
Law provides as follows:

“ An unincorporated association, society, 
league or club, not organized for pecuniary 
profit, may be incorporated under this chap-



17

ter for tlie purposes for which it was organ­
ized, if all of such purposes are purposes 
for which a corporation may be formed 
under this chapter, * #

That is to say, the statute requires that every 
single purpose specified in the charter must be 
one for which a membership corporation may be 
formed.

Not only are the many commercial purposes 
specified in the defendant’s certificate such as 
fall under the Stock Corporation Law, but this 
certificate actually and expressly included “ all 
powers”  capable of “ exercise under and in pur­
suance of the Stock Corporation Law”  (fol. 297).

It being utterly impossible for the defendant 
corporation to have been lawfully incorporated 
as a membership corporation, the holding of the 
Trial Court that it was a mere private club and 
nothing more (fol. 339), is clearly reversible 
error, and its judgment is on this ground alone 
and even without more, completely invalidated.

It also follows, a fortiori, that the alleged at­
tempted adoption by the defendant of a set of 
secret pseudo “ rules”  could not give it the ex­
clusive character of a distinctly private club, 
which its charter denied, particularly in connec­
tion with those commercial pursuits which its 
charter embraced.

“ The constitution adopted by a corpora­
tion is merely a part of its by-laws and must 
be consistent with its certificate of incorpo­
ration. ’ ’

Stein v. Marks, 44 Misc. 140, 145.



18

C

Monstrous Consequences of a Contrary 
Interpretation

Were not this the case, then there is a wide- 
open device for the evasion of the equal rights 
provisions of Section 40 of the Civil Rights Law 
and the express restrictions of the Membership 
Corporations Law.

If such a blind as this should ever receive judi­
cial sanction, corporations would spring up like 
mushrooms which on their face possess all of the 
powers and advantages of business corporations, 
yet, by a system of secret internal rules and 
regulations, not open to the unsuspecting public, 
afford themselves the pretext of being private 
clubs exempt from the provisions of the Bill of 
Rights. Was it not thus that of old the kings 
of the Medes and the Persians sought to destroy 
their peoples’ liberties by printing their decrees 
and regulations on pillars so high the people 
could not read them?

Janus-like, these two-faced corporate enter­
prises would seek revenue from the public and 
at the same time immunity from every constitu­
tional restraint against race prejudice and dis­
crimination upon which the foundations of our 
democratic way of life are laid.

D

By no Stretch of the Imagination was Defendant a 
“ Distinctly Private” Club

Certainly it is a bitter mockery to say that 
such corporate siamese-twins are the “ distinctly 
private”  clubs excepted from the operation of 
the equal rights provisions of the statute.



19

As if in anticipation of the very artifice which 
this defendant has contrived, the Legislature did 
not exempt clubs or membership corporations as 
such. It was careful to provide that even these 
must be in their nature “ distinctly private!”  
Not just private—but distinctly private! What 
clearer words could possibly have been chosen 
by the Legislature to indicate the exclusively and 
totally private nature of the so-called “ club”  
required to satisfy the exception, and to empha­
size its fear lest quasi “ clubs”  such as this de­
fendant be used to thwart the salutary purpose 
of the statute?

T o quote the apt language of Judge F in c h , 
now of this Court, in rendering his decision in 
the similar case of McKaine v. Drake Business 
School, Inc., 107 Misc. 241 (Appellate Term ):

“ Apart from the fact that it would seem 
difficult to hold upon this record that a school 
which concededly advertises for students 
upon billboards and elevated and subway 
stations throughout the city of New York, 
was of a distinctly private nature, it is clear 
that the burden was upon the defendant to 
prove it is within the exception of the stat­
ute if it sought to claim the benefits of such 
exception

The defendant has not even approached, much 
less has it sustained, that burden here!



2 0

P O IN T II
Defendant’s operations and activities under 

its charter are interpretative of the express 
business purposes for which the corporation 
was organized. Those actions speak even 
louder than the words of the charter them­
selves. The commercial purposes to which 
the defendant actually put its public golf 
course are the strongest corroboration (as­
suming that any were needed) of the plain 
words of its certificate of incorporation.

The undisputed and undeniable evidence shows 
that the defendant’s premises were utilized to 
the financial profit of defendant both predomi­
nantly and continuously by members of the gen­
eral public, and that the defendant sought revenue 
from the public through its golf course. That 
evidence is set out in great detail in the State­
ment of Facts at the beginning of this brief.

A

The Profits from the Public

Just how profitable a business venture defend­
ant’s public golf course was appears from com­
puting its intake for the five days covered by 
the Exhibits. Its green fees, collected from 
members of the general public for those four 
days (fol. 327), amounted to well over $100!

Plaintiffs’ Exhibits 5, 7, 8 and 9, constituting 
the defendant’s “ Hotel Register”  for the five 
days, July 8, July 9, September 2, October 5 and 
October 6, 1940, show on their face that there 
were golf players on those dates from various



2 1

localities in New York, New Jersey and Pennsyl­
vania. Only about 20% of these names bore after 
them the letter “ M ” —indicating “ Member”  (fol. 
204). Not one of the other names carries the 
designation of any introducer or sponsor. Assum­
ing that the greens fees paid by those not desig­
nated “ M ”  were at the rate specified in Section 
8 of Article XIV  of the by-laws (fol. 327), the 
defendant’s intake for these five days would have 
been well over $100 from its golf course alone.

Nor were any of the officials of the defendant 
who testified able to name a single sponsor or in­
troducer of any one of these hundred or more 
non-member players (fols. 198-205, 221-5). The 
Chairman of the defendant’s Greens Committee 
admitted that he “ could not say”  that all the golf 
players were members or invitees of members 
(fol. 205).

B

The Signs and the Invitation to the “ Public”

(1) All the public had to do was to follow the 
signs which admittedly the defendant had for 
years permitted to be maintained along the routes 
leading to its golf course and which, with the aid 
of a directional arrow, openly announced to the 
traveling public (P i’s Exs. 2 and 4, pp. 93 and 95)

“ G O L F  C L U B  

18 HOLES 

P U B L I C ”

The lame attempt at an excuse proffered by 
the defendant on the trial that it had not itself 
put up these signs, notwithstanding their mainte­
nance for years in public view and the defend-



2 2

ant’s admitted knowledge (fol. 167) of their 
existence, can scarcely expect charitable comment. 
The defendant enjoyed the benefit of this adver­
tising without paying for it!

William H. Woolsey, who had been connected 
with the defendant since its organization and was 
one of its Board of Governors and the Chairman 
of its Greens Committee in 1940, admitted that 
he had seen these signs; that they were on the 
public highway leading to the club and its golf 
course; and that the Board of Governors never 
took any affirmative steps to have these signs re­
moved (fols. 190-3).

Bichard George Mannheim, who had been con­
nected with the defendant ever since its organi­
zation, was its secretary in 1940 and its presi­
dent at the time of the trial, testified that these 
signs had been on the highway for possibly three 
or four years; that he passed them every time 
he came from his home to the defendant club; 
that these signs were on poles maintained by the 
Highland Telephone Company of which Mr. Mil­
lard Florance was an officer; that Mr. Millard 
Florance “ was a very respected and beloved 
member o f ”  the defendant club; and that after 
the death of Mr. Millard Florance on March 5, 
1939, the witness (Mr. Mannheim) did nothing 
about the removal of these signs down to and 
including the date of the plaintiffs’ expulsion on 
October 5, 1940 (fols. 166-9).

An examination of the defendant’s certificate 
of incorporation dated July 31, 1937 (Appendix 
B, hereto annexed) shows that these two wit­
nesses (Woolsey and Mannheim) and this Mr. 
Millard Florance were named among the first di­
rectors of the club (p. 45, post). Mr. Millard 
Florance, notwthstanding he was thus prominent 
both in the Telephone Company and in the club,



23

never took any steps to have the signs removed 
from the Telephone Company’s property (fol. 
168).

These signs were on the main street of the 
village on the corner of Route 32 leading to New­
burgh and they carried an arrow pointing in the 
direction of the golf course (fols. 147-8).

The claim that these signs in this conspicuous 
place and admittedly known to the officials of the 
golf club for years were not erected by the club 
itself but by persons unknown (fols. 144, 150, 
267-8), is irrelevant as well as a patent pretense. 
The defendant’s own certificate of incorporation 
shows that of its first seventeen directors all but 
three had post office addresses in the Village of 
Central Valley and the adjoining Village of High­
land Mills. Presumably they were among the 
“ group of business men in the neighboring 
town” , whom the Trial Court seemed to think 
might have erected these signs, although there is 
no real evidence to any such effect (fols. 337, 267- 
8 ); and it is morally certain that Mr. Millard 
Florance, who must have been one of this alleged 
“ group”  since he was an officer of the Telephone 
Company as well as a founder and a first director 
of the club (fol. 166, and p. 45, post), was the 
medium through which permission was obtained 
to erect these signs on the property of the Tele­
phone Company.

The mystery which the defendant seeks to make 
about the erection of these signs is fully 
equalled by the mystery which it also makes 
about their removal two months after the com­
mencement of this very suit (fols. 2, 271-2). It 
must be borne in mind that the Mr. Fred Florance 
who takes part in making both these mysteries 
(fols. 265-272), was himself not only an Assistant



24

General Manager of the Highland Telephone 
Company (fol. 267) but also a member and 
founder of the defendant club (p. 45, post).

(2) Likewise beyond the possibility of chari­
table comment is the defendant’s effort suddenly 
to discriminate racially as between its “ public”  
because it posted signs near the golf course con­
taining the words (fols. 176, 152):

“ OPEN TO THE PUBLIC UNDER 
CLUB RULES.”

No reproductions of these signs are contained 
in the record. The plaintiff Delany’s testimony 
that, although he had been playing there for four 
or five years, he did not see the words “ under 
club rules,”  and that if they were there “ they 
were very small”  (fol. 90), stands absolutely un­
contradicted in the record. The Trial Court in 
its decision stated Mr. Delany’s “ testimony is 
accepted without qualification”  (fol. 332).

These latter signs had been maintained by the 
defendant itself for many years (fols. 174-6). 
The Chairman of its Greens Committee himself 
admitted that these signs were repainted by the 
defendant “ every so often”  and were taken down 
“ in the wintertime and put out in the spring” ,— 
to wit: at the close and the beginning of the golf 
season (fol. 176).

But even apart from such considerations, these 
signs put up by the defendant itself constitute 
unmistakable admissions that its golf course was 
in fact “ open to the public.”  Its own signs said 
so in large letters! (fol. 90). This testimony was 
likewise unimpeached. The most that its small- 
type phrase “ under club rules”  could possibly 
mean to the invited “ public”  was that the course



25

was not free! Surely this Court should have but 
little patience with such profit-seeking “ double- 
talk” !

Furthermore, such an interpretation had ap­
parently never occurred to the defendant during 
the four or five previous years in which the plain­
tiff Delany had been playing this course.

Both by the tests of its charter powers and of 
its own actions, therefore, there is not even a 
scintilla of evidence in this record that this de­
fendant was, as regards its “ public”  golf course, 
a club “ in its nature distinctly private! ”

C
The “ By-Laws”

For five years the plaintiff Delany had been 
playing from two to three times a year on the 
defendant’s golf course, paying the regular 
green fees. On these occasions he signed the 
registry and was furnished with a score card, a 
receipt and caddies. He was always on friendly 
terms with the professional in charge. At no 
time was a “ courtesy card”  demanded of him, 
or was he requested to make reservations (fols. 
57-92).

On October 5, 1940, he drove to the Club and 
parked his car as usual. He had with him two 
friends, also colored. Just as he was signing his 
name on the register as usual, the professional 
told him with some apologies that the hoard of 
directors had lately issued instructions “ not to 
let any more colored fellows plav here”  (fols. 
59, 60).

No By-Law or Buie to any such effect is pro­
duced. Not even such a resolution (if there were



26

one) is shown. It is the kind of thing privileged 
people do not put on paper.

The courts below have overlooked the distinc­
tion clearly made in the defendant’s own By- 
Laws between club members with the privileges 
of the Club House on the one hand, and mere 
“ playing guests”  on the golf course on the other 
hand. These By-Laws begin at folio 313. They 
recognize four distinct classes of persons, to-wit:

1. “ Stockholders of the Club”  (fol. 313).
2. “ Subscribing members”  who pay annual 

dues (fols. 313-8).
3. “ Guests of members”  who, upon being 

properly introduced, are “ entitled to the 
privileges of the Club House”  not “ more 
than twice in one month”  (fols. 325-6). 
Members so introducing guests are re­
sponsible for their debts (fol. 326).

4. “ Playing guests”  who may play on the 
golf course upon paying a green fee of 
$1.00 per day or $1.50 for Saturdays, 
Sundays and holidays (fol. 327).

For four or five years the plaintiff Delany had 
been in the fourth class. His sudden and belated 
exclusion from that class because of his race and 
color constitutes the gravamen of this action.

We repeat that the courts below have clearly 
overlooked these separate classifications in the 
defendant’s own By-Laws. For example, the 
opinion of the Trial Court says (fol. 333):

“ The By-Laws specifically limit the privi­
leges of the course to various classes of mem­
bers and to guests of members.”

That is a mistake. The By-Laws do thus limit 
“ the privileges of the Club House”  (fol. 325), 
but as to the golf course there are no such re-



27

strictions at all. Payment of tlie green fee is tlie 
only requirement (fol. 327).

Indeed, this very distinction and a golf course 
so run were among the declared purposes of the 
defendant. Its own certificate of incorporation 
recites that one of its aims is a golf course to 
“ furnish entertainment and diversion to the pub­
lic”  (fol. 290). On the other hand, the certifi­
cate also contemplates the erection of a Club 
House with “ dining rooms” , “ bed rooms” , and 
accommodations for “ musical, literary, social and 
other entertainment ’

Thus, this defendant operated a Club House 
for its own members and for such accredited 
guests as, for limited periods, were granted “ the 
privileges of the Club House”  (fol. 325). But it 
also operated a golf course “ open to the public” , 
and sought revenue therefrom by inviting the 
public to play in exchange for green fees (fol. 
327).

That the defendant itself so understood the 
situation is abundantly shown by the fact that 
the plaintiff Delany had been playing on the golf 
course upon precisely these terms for the pre­
vious five years. Moreover, even a very cursory 
examination of so much of the defendant’s Reg­
ister as is in evidence (Plaintiff’s Exhibits 5, 7, 8, 
pp. 96, 101, 102, 103) will reveal the overwhelm­
ing number of non-members using the golf course. 
.The non-members, to-wit, those who were not ad­
mitted to the privileges of the Club House but 
merely paid a green fee for playing on the golf 
course, are indicated by the horizontal lines next 
to their names (fol. 204). They were members of 
the public,—in class 4, supra.



28

A summary of the clays during the year 1940, 
as shown by the sheets of the defendant’s “ Hotel 
Begister”  in evidence, is as follows:

Date
Plaintiffs’

Exhibit

No. of 
Members 
Signing

No. of Non­
members 
Signing

July 8, 9,1940. ... 8 5 38
Sept. 2, 1940. 
Oct. 5 and 6,

... 9 11 37

1940. ... 5 & 7 8 38

POINT III

The equal rights provision o f the Civil 
Rights Law implements and carries out the 
public p o l ic y  o f the people o f  this State em­
bodied in the recent constitutional amend­
ment adopted at the Constitutional Conven­
tion o f 1938. That amendment itself, by its 
very terms, expressly condemns the action o f 
defendant in excluding plaintiffs from its 
“ public”  golf course as a violation o f their 
constitutional and statutory rights.

The judgment o f the Trial Court, adopting 
a so-called strict and erroneous interpretation 
o f the statute, is therefore reversible for this 
additional reason.

In 1938 Hitler marched into Czechoslovakia. 
In November of that year, alarmed by the grow­
ing strength of racial prejudice and anti-semitism 
prevalent not only in Europe but in this country, 
the people of the State of New York met in the 
Constitutional Convention of that year. Then,



29

for the first time in its history, there was adopted 
as a part of the Bill of Rights of the people of 
this State Section 11 of Article I reading as fol­
lows :

“ No person shall be denied the equal pro­
tection of the laws of this state or any sub­
division thereof. No person shall, because of 
race, color, creed or religion, be subjected to 
any discrimination in his civil rights by any 
other person or by any firm, corporation or 
institution or by the state or any agency or 
subdivision of the state.’ ’

The tremendous importance of this new sweep­
ing Constitutional enactment can be appreciated 
when it is recognized that, unlike the correspond­
ing provision of the Federal Constitution, it is 
directed against discrimination “ by any person”  
as well as discrimination by “ any firm, corpora­
tion or institution”  whatsoever and without qual­
ification.

Not only “ discrimination”  but “ any discrim­
ination”  is forbidden by the express terms of this 
great interdict.

There is no exception here of clubs. The 
amendment is not confined to places of public 
accommodation or amusement. So-called “ strict”  
construction of racial civil rights is no longer pos­
sible.

By its very terms, and without even requiring 
the support of Section 40 of the Civil Rights Law, 
this Constitutional Amendment applies directly 
to, and out of its own mouth condemns, the de­
fendant’s high handed actions.



30

A

The Background

No better statement of the full scope and pur­
pose of this great amendment and of the evils it 
was framed to remedy can possibly be found than 
the official Report of The New York State Consti­
tutional Convention Committee on which this very 
amendment was based. We quote from the official 
Report of 1938 (Vol. V I ) :

“ Racial and other Forms of Discrimination.
“ There is no provision in the present State 

Constitution covering the subject of discrim­
ination on racial or other grounds, although 
the subject is covered to some extent in the 
Fourteenth and Fifteenth Amendments to 
the Federal Constitution. All existing provi­
sions against discrimination on the ground 
of race, creed or color in New York State are 
contained in the Civil Rights Law, sections 
5, 40, 40a, 41 and 42, with the addition of 
Section 920 to the Education Law. The gist 
of the constitutional proposals advanced on 
the subject is to transfer and incorporate the 
substance of these provisions into the Con­
stitution, and in so doing to add to these pro­
visions coverage for phases of the subject 
that are not treated at all in the existing law.

“ The Fourteenth and Fifteenth Amend­
ments to the Federal Constitution, enacted 
in the aftermath of the Civil War, are di­
rected against the practices of racial dis­
crimination. They have, however, been nar­
rowly construed and limited to a restricted 
field. The most serious restriction has come 
from the line of decisions holding that the 
amendments are directed only against dis­
criminations practiced by the State itself, 
and not by individuals, and further that any 
attempt by Congress to legislate against dis-



31

crimination by private citizens will be in­
valid as falling without the power granted 
to Congress by these amendments.”

Again the Constitutional Convention Com­
mittee says (pp. 224, 225):

“ The existence of discrimination, particu­
larly against the Negro race, is well known. 
Discrimination has existed against other 
groups and races as well, although not to the 
same extent as against the Negro race. The 
particular fields where discrimination has 
been thought to be productive of the most 
serious consequences, and for this reason 
most likely subjects for constitutional provi­
sions, are: (1) Use of accommodations of
a public nature offered generally to the pub­
lic, (2) employment, (3) education, and (4) 
residential segregation.

“ I. Equal Accommodations
“ As previously stated, some of these sub­

jects are already covered in the Civil Rights 
Law, equal accommodations being covered 
most fully of all by the provisions of section 
40 of the Civil Rights Law. This section for­
bids discrimination with regard to any pub­
lic property or public service and any pri­
vately-owned property or service which is 
offered generally to the public. It enumerates 
the various forms of services included within 
these two categories, and includes under pub­
lic service such services as hospitals, clinics, 
schools, dispensaries, parks, etc., and such 
privately owned enterprises as theatres, mo­
tion picture houses, barber shops, music halls, 
etc. The only significant omissions in the 
provision are retail and wholesale establish­
ments. If the substance of the provision 
were to be transferred to the Constitution, 
some suggest it would be simpler to state 
the provision in somewhat more general



32

terms and simply provide against the denial 
because of race, color or religion of the full 
and equal accommodations with regard to 
any public property or service or any pri­
vately owned place where public patronage 
is solicted or with respect to any private 
service that is offered generally to the pub­
lic.”

Not only, therefore, does this great new Magna 
Charta afford the direct basis for dealing with 
individual discrimination by any person, corpo­
ration or institution whatsoever (whether public 
or private), but it constitutes in addition a 
solemn declaration embodied in the highest law 
of the land declarative of the public policy of the 
State of New York.

To hold, therefore, that the provisions of Sec­
tion 40 of the Civil Rights Law, which are now 
fortified and enlarged by this great recent Con­
stitutional enactment, are to be strictly construed, 
is almost to flout the will of the people of this 
State assembled in its Constitutional Convention 
and confirmed at the polls.

The new Amendment is now paramount; and 
the case of Gibbs v. Arras Bros., 222 N. Y. 332, 
relied on by the Trial Court (Record, pp. 114, 
115) is no longer applicable.

B

The Legislative Program

To meet the still further exigencies of the 
growth of racial intolerance and to carry out and 
make effective this great addition to the Bill of 
Rights, statute after statute have been enacted. 
They indicate the invincible determination of the 
people of this State to prevent the further cancer­
ous growth of such intolerance.



33

To plug existing loopholes created by the in­
genuity of parties seeking to avoid these prohi­
bitions, Section 40 of the Civil Rights Law has 
itself been many times amended (and once on 
June 9, 1939, since the Constitutional Amend­
ment) so as to include by name (and as illustra­
tive of the purpose of the law) new places of 
accommodation and amusement which might be 
used as means of evasion. To make it even 
clearer that this list is not exhaustive the statute 
provides that a place of accommodation or amuse­
ment within the meaning of the prohibition 
“ shall he deemed to include,”  i. e., not be limited 
to, the places enumerated.

In rapid succession there have been passed Sec­
tion 43 of the Civil Rights Law, added in Febru­
ary, 1940, which prohibits labor organizations 
from denying “ to any of its members by reason 
of race, color or creed, equal treatment with all 
other members * * * ” ; Section 40-b of the Civil 
Rights Law, added in April, 1941, which prevents 
the exclusion from theatres or other public per­
formances of any persons based upon race, creed 
or color; and Section 44 of that Act, added Sep­
tember, 1941, prohibiting similar discrimination 
by industries involved in defense contracts.

In the light of this great legislative and con­
stitutional crusade against the evils of intoler­
ance, the appellants submit that the device which 
the defendant has been permitted thus far suc­
cessfully to use constitutes a dangerous and 
easily extended means of both present and future 
evasion of the great safeguards which the people 
of this State have sought to throw about their 
rights and freedoms.



34

C

The Dangers of Evasion

If these protections are whittled away in this 
one instance, they will be blunted and evaded in 
others. Once a hole in this great political dyke is 
made, not only places of amusement, but places 
in which to live and sleep and vote and finally 
state and national political committees may be­
come, one after the other, “ distinctly private”  
clubs!

This Court does not need to be reminded of 
the sinister fact that the Nazi Party, which in the 
name of racial purity and supremacy has by now 
tortured, butchered and starved a sixth of the 
human race, originated in a series of “ clubs”  in 
form not unlike and outwardly quite as innocent 
as our own Boy Scouts!

If these protections can be blunted for Negroes 
they can and will be blunted for Whites also. 
If colored men can be discriminated against for 
racial reasons, so can white men—for their polit­
ical or religious beliefs or their ancestry. There 
is no telling where or when the scourge will fall. 
If Negroes can be excluded by corporations such 
as this, openly enjoying all the monetary advan­
tages of public patronage, yet secretly possessing 
the immunity of private clubs, so too can Whites, 
—for racial, religious, political or other reasons.

D

The Broad Public Significance of this Appeal

In taking this appeal, therefore, appellants are 
not concerned alone either with their individual



35

fortunes or even those of the race to which they 
belong. They are much more concerned with the 
disastrous effect upon our citizenry as a whole 
and upon our democratic way of life which these 
evasive, inflammatory and provocative practices, 
if allowed to continue, will inevitably have.

They respectfully remind this great Court of 
the wise and prophetic words of our great Presi­
dent, Abraham Lincoln:

“ And if the safeguards to liberty are 
broken down, as is now attempted, when they 
have made things of all the free negroes, how 
long, think you, before they will begin to 
make things of poor white men? Be not de­
ceived. Revolutions do not go backward. 
The founder of the democratic party de­
clared that all men were created equal. His 
successor in the leadership has written the 
word ‘white’ before men, making it read ‘ all 
white men are created equal.’ Pray, will or 
may not the Know-nothings, if they should 
get in power, add the word ‘protestant,’ 
making it read ‘ all protestant white men?’ ’ ’ 
(Speech of May 19, 1856.)

They also respectfully remind the Court that 
once again they and the race to which they belong 
are being asked to fight and die to help preserve 
the liberties for which their country stands, in­
cluding the liberties of those who operate “ clubs”  
on revenues sought and obtained from the public. 
They are once more both proud and eager to re­
spond. But when the fight is over, let those of 
them who survive not be told when they come 
home to ask for shelter and a place to live and 
pursue happiness, “ Sorry, but this is a distinctly 
private club!”  For wherein lies the victory if, 
though the fight itself be won, some group of our 
fighters must still accept the bitterness of being 
second-class citizens?



36

CON CLUSION

The judgment appealed from should be 
reversed and judgment awarded the plaintiffs 
for the relief prayed.

Dated, New York, N. Y., May 11, 1942.

Respectfully submitted,

D avid C oral,
Attorney for Plaintiffs-Appellants.

Charles H . T u ttle ,
S toddard B. C olby,

Of Counsel.



37

A P P E N D IX  A

Sections 40 and 41 of C iv il Rights Law
“ § 40. Equal rights in places of public accom­

modation, resort or amusement.

All persons within the jurisdiction of this state 
shall be entitled to the full and equal accommo­
dations, advantages, facilities and privileges of 
any places of public accommodations, resort or 
amusement, subject only to the conditions and 
limitations established by law and applicable 
alike to all persons. No person, being the owner, 
lessee, proprietor, manager, superintendent, 
agent or employee of any such place shall 
directly or indirectly refuse, withhold from or 
deny to any person any of the accommodations, 
advantages, facilities or privileges thereof, or 
directly or indirectly publish, circulate, issue, dis­
play, post or mail any written or printed com­
munication, notice or advertisement, to the effect 
that any of the accommodations, advantages, fa­
cilities and privileges of any such place shall be 
refused, withheld from or denied to any person 
on account of race, creed or color, or that the 
patronage or custom thereat, of any person be­
longing to or purporting to be of any particular 
race, creed or color is unwelcome, objectionable 
or not acceptable, desired or solicited. The pro­
duction of any such written or printed communi­
cation, notice or advertisement, purporting to re­
late to any such place and to be made by any 
person being the owner, lessee, proprietor, su­
perintendent or manager thereof, shall be pre­
sumptive evidence in any civil or criminal action 
that the same was authorized by such person. 
A place of public accommodation, resort or 
amusement within the meaning of this article,



38

shall be deemed to include inns, taverns, road 
houses, hotels, whether conducted for the enter­
tainment of transient guests or for the accom­
modation of those seeking health, recreation or 
rest, or restaurants, or eating houses, or any 
place where food is sold for consumption on the 
premises; buffets, saloons, barrooms, or any 
store, park or enclosure where spirituous or malt 
liquors are sold; ice cream parlors, confection­
eries, soda fountains, and all stores where ice 
cream, ice and fruit preparations or their deriva­
tives, or where beverages of any kind are re­
tailed for consumption on the premises; retail 
stores and establishments, dispensaries, clinics, 
hospitals, bathhouses, barber-shops, beauty par­
lors, theatres, motion picture houses, airdromes, 
roof gardens, music halls, race courses, skating 
rinks, amusement and recreation parks, fairs, 
bowling alleys, gymnasiums, shooting galleries, 
billiard and pool parlors, public libraries, kinder­
gartens, primary and secondary schools, high 
schools, academies, colleges and universities, ex­
tension courses, and all educational institutions 
under the supervision of the regents of the state 
of New York; and any such public library, kinder­
garten, primary and secondary school, academy, 
college, university, professional school, extension 
course, or other educational facility, supported 
in whole or in part by public funds or by con­
tributions solicited from the general public; ga­
rages, all public conveyances operated on land 
or water, as well as the stations and terminals 
thereof; public halls and public elevators of 
buildings and structures occupied by two or more 
tenants, or by the owner and one or more ten-

A p p e n d ix  A



39

ants. Nothing herein contained shall he con­
strued to include any institution, club, or place of 
accommodation which is in its nature distinctly 
private, or to prohibit the mailing of a private 
communication in writing sent in response to a 
specific written inquiry. As amended L. 1918, 
c. 196; L. 1935, c. 737; L. 1939, c. 810, § 1. Eft. 
June 9, 1939.”

.v. -v- -y- -y.'A - w  'a"  -A- 'A '

‘ ‘ § 41. Penalty for violation.

Any person who or any agency, bureau, cor­
poration or association which shall violate any 
of the provisions of sections forty, forty-a or 
forty-b or who or which shall aid or incite the 
violation of any of said provisions and any offi­
cer or member of a labor organization, as de­
fined by section forty-three of this chapter, or 
any person representing any organization or act­
ing in its behalf who shall violate any of the pro­
visions of section forty-three of this chapter or 
who shall aid or incite the violation of any of 
the provisions of such section shall for each and 
every violation thereof be liable to a penalty of 
not less than one hundred dollars nor more than 
five hundred dollars, to be recovered by the per­
son aggrieved thereby or by any resident of this 
state, to whom such person shall assign his cause 
of action, in any court of competent jurisdiction 
in the county in which the plaintiff or the de­
fendant shall reside; and such person and the 
manager or owner of or each officer of such 
agency, bureau, corporation or association, and 
such officer or member of a labor organization

A p p e n d ix  A



40

or person acting in Ms behalf, as the case may 
be shall, also, for every such offense he deemed 
guilty of a misdemeanor, and upon conviction 
thereof shall be fined not less than one hundred 
dollars nor more than five hundred dollars, or 
shall be imprisoned not less than thirty days nor 
more than ninety days, or both such fine and im­
prisonment. As amended L. 1918, c. 196; L. 1932, 
c. 234; §2 ; L. 1940, c. 9, §2 ; 1941, c. 893, §2, 
eff. April 30, 1941.”

A p p e n d ix  A



41

A P P EN D IX  B

(Plaintiffs’ Exhibit 6, Partly Printed at Page 
97 of Record)

CERTIFICATE OF INCORPORATION

of

CENTRAL VALLEY GOLF CLUB, I nc.

Pursuant to Article Two of the Stock 
Corporation Law.

We, the undersigned, desiring to form a stock 
corporation pursuant to the provisions of Article 
Two of the Stock Corporation Law of the State 
of New York, do hereby certify as follows:

F ibst: That the name of the corporation is 
Central V alley G olf Clu b , I n c .

S econd : That the purposes for which it is to 
be formed are to do any and all the things herein­
after set forth to the same extent as natural per­
sons might or could do in any part of the world, 
namely:

(a) To provide a golf course at or near Cen­
tral Valley, in the County of Orange, and State 
of New York; to lay out and maintain golf links 
and tennis courts, and to erect and maintain club 
houses, caddy houses, cottages, bungalows and 
other buildings and improvements incident to the 
management of golf links; to lay out and prepare 
such grounds for golf and other athletic sports 
and other purposes, and to provide lavatories, 
refreshment rooms and other conveniences in 
connection therewith, and with a view thereto to



42

enter into an agreement to furnish amusement, 
entertainment and diversion to the public, either 
indoors or out of doors, and to that end pur­
chase or lease grounds and buildings and to en­
gage and to conduct the same as places of public 
or private amusement and diversion, and to grant 
concessions to individuals, companies or corpora­
tions, to conduct at such places of amusement 
particular businesses for the amusement and en­
tertainment of the public.

2. To promote the game of golf and other 
sports and amusements.

3. To hold or arrange golf and other matches 
and competitions and to offer and grant, or con­
tribute toward the purchase of, prizes, awards 
and distinctions.

4. To subscribe to, become a member of, and 
co-operate with any other association, whether 
incorporated or not, whose objects are largely or 
in part similar to those of this corporation.

5. To buy, sell and deal in all kinds of sport­
ing goods and products required by persons fre­
quenting the corporation’s property.

6. To purchase, take or lease or otherwise ac­
quire any lands, buildings, easements or prop­
erty, real or personal, which may be requisite 
for the purpose of, or capable of being con­
veniently used in connection with, any of the ob­
jects of the corporation.

8. To conduct the business of catering in all 
its lines; to take charge of and plan and prepare 
banquets, breakfasts and dinners and to serve

A p p e n d ix  B



43

the same; to furnish waiters and waitresses, and 
generally to do everything that those engaged in 
a similar line of business do.

9. To purchase, rent, own, refit and improve 
the building or buildings already constructed in 
the Village of Central Valley, Orange County, 
New York, or to erect and maintain and lease 
and maintain a building or buildings in said Vil­
lage to be used as a hall for the accommodation 
of musical, literary, social and other entertain­
ment, and scientific and other exhibitions, and 
parts thereof to be used for dining rooms, bed­
rooms, and for the further purpose of furnish­
ing or providing entertainments and exhibitions.

10. To purchase, sell and generally deal in, at 
retail, under such restrictions, regulations and 
conditions as may be imposed by law, beer, ale, 
porter and all kinds of alcoholic and non-alco­
holic liquors; to take out and do business under 
licenses and permits, state and Federal, for the 
sale of liquors.

11. To sell and prepare food and drink of all 
kind; to do a general restaurant and lunchroom 
business; in connection therewith to maintain and 
conduct stands for the sale of tobacco and con­
fectionery.

12. To borrow or raise money for the pur­
poses of the corporation, to secure the same and 
any interest thereon, and for that purpose or 
any other purpose permitted by law, and subject 
to the restrictions and conditions thereby im­
posed, to mortgage and charge all or any part 
of the present or after-acquired property, rights

A p p e n d ix  B



44

and franchises of the corporation, and to issue, 
sell, pledge, or otherwise dispose of its notes, 
bonds, debentures and other evidences of indebt­
edness.

In general to do any and all things and to ex­
ercise any and all powers necessary or advisable 
to accomplish one or more of the purposes of the 
corporation, or which shall at any time appear 
to be conducive to, or for the benefit of, said cor­
poration in connection therewith which may now 
or hereafter be lawful for the corporation to do 
or exercise under and in pursuance of the Stock 
Corporation Law of the State of New York, or 
any other law that may be now or hereafter ap­
plicable to the corporation.

T h ir d : That the total number of shares that 
may be issued by the corporation is two hundred 
(200), all of which are to be without par value. 
That the capital of the corporation shall be at 
least equal to the sum of the aggregate par value 
of all issued shares having par value plus the 
aggregate amount of consideration received by 
the corporation for the issuance of shares with­
out par value, plus such amounts as, from time 
to time, by resolution of the Board of Directors 
may be transferred thereto.

F o u r t h : That the Secretary of State is des­
ignated as the agent of the corporation upon 
whom process in any action against it may be 
served, and the address to which the Secretary 
of State shall mail a copy of process in any ac­
tion or proceeding against the corporation which 
may be served upon him is : Central Valley Golf 
Club, Inc., Central Valley, Orange County, New 
York.

A p p e n d ix  B



45

F ifth  : That the office of the corporation shall 
be located in the County of Orange, Village of 
Central Valley, and State of New York.

S ix th  : That the duration of the corporation 
shall be perpetual.

S eventh  : That the number of directors of the 
corporation shall be seventeen who need not be 
stockholders.

A p p e n d ix  B

E ig h t h : That the names and post-office ad­
dresses of the directors until the first annual 
meeting of the stockholders are as follows:

Names

Millard C. Florance 
William H. Woolsey 
Edward A. Anderson 
Edward F. Raynolds 
Leo J. Filer 
Fred. Florance 
Walter Belding 
George O. Duncan, Jr. 
Morgan S. Elmer 
Warren M. Gilder sleeve 
Arthur M. Hazell 
Allan W. Hollenbeck 
Norman C. Lawson 
Richard G. Mannheim 
Willard G. Saltsman 
Alfred J. L ’Heureux

James J. Kerrigan

Post-Office Addresses
Highland Mills, New York. 
Central Valley, New York. 
Central Valley, New York. 
Central Valley, New York. 
Central Valley, New York. 
Highland Mills, New York. 
Highland Mills, New York. 
Highland Mills, New York. 
Central Valley, New York. 
Central Valley, New York. 
Central Valley, New York. 
Central Valley, New York. 
Central Valley, New York. 
Ridgewood, New Jersey 
Highland Mills, New York. 
12 Newman Street, 

Hackensack, New Jersey. 
39 Water Street,

New York, New York.



46

N i n t h : That the name and post-office address 
of each subscriber of this certificate of incorpo­
ration and the number of shares of stock which 
he agrees to take are as follows:

Post-Office Number
Names Addresses of Shares

Arthur M. Hazell Central Valley, New York 1
Richard G. Mannheim Ridgewood, New Jersey 1
George O. Duncan, Jr. Highland Mills, New York 1

T en th  : That all of the subscribers of this cer­
tificate of incorporation are of full age, at least 
two-thirds of them are citizens of the United 
States, and at least one of them is a resident of 
the State of New York; and that at least one of 
the persons named as a director is a citizen of 
the United States and a resident of the State of 
New York.

In w it n e ss  w h e e e o e , we have made, signed and 
acknowledged this certificate of incorporation 
this 31st day of July, 1937.

A. M. H azell l . s.
R ichard  G. M a n n h e im  l . s.
G eoege D uncan  l . s.

State of New York )
County of Orange '

On this 31st day of July, 1937, before me per­
sonally came A rthub  M. H azell, R ichard G. 
M a n n h e im , and G eorge 0. D u n can , Jr., to me 
known, to be the persons described in and who 
executed the foregoing certificate of incorpora­
tion, and they thereupon duly severally acknowl­
edged to me that they executed the same.

G eorge R . M iller , 
Notary Public.

A p p e n d ix  B





fTwQjfj|f^|^»307 BAR PRESS, INC., 47 w e s t  s t ., n e w  YORK. b o . 9— 0157-8

[5097]



Argued by
Charles H . T uttle

Court of appeals
of the State of New York

H ubert T. D elan y , E oy W il k in s , 
and E. F rederick M orrow,

Plaintiffs-Appellants, j

against

Central V alley G olf C lu b , I n c ., 
Defendant-Respondent.

A P P E LLA N TS ’ R E P LY BRIEF

1. The respondent’s brief now concedes (p. 2):
“ The Club was incorporated under the 

Stock Corporation Law with broad powers 
to conduct a golf course for public or private 
amusement. ’ ’

This concession destroys the foundation of the 
Trial Court’s decision, which described the de­
fendant as “ a membership corporation”  (fol. 
330), and said (fol. 338) :

“ The certificate must be read in light of 
the fact that the defendant is a membership 
and not a business corporation.”

The concession also destroys any ability on 
the part of the defendant to claim that within 
the meaning of Section 40 of the Civil Rights 
Law it is a



2

“ club which is in its nature distinctly pri­
vate.”

The “ nature”  of this defendant was not “ dis­
tinctly private.”  “ In its nature”  it was a busi­
ness corporation organized for “ business pur­
poses”  and “ pecuniary profit” . As such, it was 
not, and could not have been, organized under 
the provisions of the Membership Corporation 
Law relating to corporations “ distinctly private” . 
(See our Main Brief, pp. 11-13.)

The concession also establishes that according 
to its “ nature”  the defendant had the lawful 
capacity and power “ to conduct a golf course 
for public amusement.”  A corporation with such 
a “ nature”  cannot be said to be “ distinctly 
private.”

According to Webster’s International Diction­
ary, the word “ distinctly”  includes in meaning:

“ without blending of one thing with another. 
* * * ‘ Distinctly’ suggests sharpness of defi­
nition or freedom from confusion.”

The concession also conclusively entails the 
application of the 1938 Constitutional Amend­
ment. That Amendment would be nullified if a 
business corporation—particularly one empow­
ered to derive revenue from the use of its prop­
erty for public amusement—was not within the 
constitutional prohibition against discrimination 
imposed on “ any corporation.”

2. Rather half-heartedly the respondent en­
deavors to suggest that portions of the plain­
tiffs’ testimony were contradicted by their wit­
nesses. But this attempt must fail because no 
actual or material contradiction exists and be­
cause the Trial Court expressly found as a fact 
(fol. 332):



3

“ Even if there were no corroboration the 
testimony (of the plaintiff Delany) is ac­
cepted without qualification.”

3. The respondent’s brief does not permit it­
self to be on bowing acquaintance with the 1938 
Constitutional Amendment. Twice it merely ac­
knowledges its existence, but never discusses it.

That Amendment was submitted to The People 
with the statement of the Constitutional Conven­
tion that it was designed to “ incorporate into 
the Constitution”  the substance of the Civil 
Eights Law and “ to add coverage for phases of 
the subject that are not treated at all in the ex­
isting law.”  (See our Main Brief, p. 30.)

Thus, this Amendment not only gave a full­
ness and completeness of meaning and body to 
the Civil Eights Law, but wrote that meaning 
and body into the Constitution itself. From the 
date of that Amendment, it is no longer possible 
to say that the provisions of the Civil Eights 
Law can be interpreted otherwise than in accord 
with the supreme definition and scope supplied 
by the Constitutional Amendment itself. That 
Amendment was the voice of the highest tri­
bunal of the State, to wit, The People of the 
State of New York.

The civil rights declared in that Amendment 
immediately became automatically and without 
action by the Legislature the civil rights of every 
person in the State; and a violation of those 
rights immediately became actionable as a per­
sonal injury (Gleneral Construction Law, 37a) or 
for the penalties prescribed in Section 41 of the 
Civil Eights Law.

The Constitutional Amendment is complete 
and self-executing. It leaves nothing dependent 
upon future action by the Legislature. It is a



4

present declaration and creation of personal 
rights. Destruction or invasion of those rights 
is actionable per se.

Broderick v. Weinsier, 161 Misc. 820, 
828-9, and many cases there cited;

Civil Rights Cases, 109 U. S. 3, 17.

4. The contention in the respondent’s brief 
that the civil rights of the citizens of this State 
must be construed with the same strictness as a 
penal statute is irrelevant. The plaintiffs are 
entitled as a matter of law to recover under any 
rational construction of the written law. But 
the contention itself has always been unsound 
and is now utterly excluded by the Constitutional 
Amendment of 1938.

It would be little short of nullification now to 
hold that statutes designed to assure to the citi­
zens of the State enjoyment of fundamental con­
stitutional rights of liberty and human dignity 
are to be rendered lean and narrow by some 
process of strict construction as if they were 
penal and not remedial in their nature, and as if 
they were a restriction upon, instead of an en­
largement of, liberty and equality.

The decisions referred to by the respondent in 
support of its argument for strict construction 
do not support its thesis. Moreover, they were 
all rendered before the adoption of the Consti­
tutional Amendment and the consequent manifes­
tation of the will of The People of this State 
that the evil of discrimination should be exor­
cised in all its forms. Indeed, the report of the 
Constitutional Convention itself officially declared 
that one of the purposes of the Amendment was 
to reverse and prevent the denaturing of civil 
rights through “ strict construction.”  (See our 
Main Brief, pp. 30-32.)



5

5. Even without the Consitutional Amend­
ment, the letter and spirit of Sections 40 and 41 
of the Civil Rights Law cover with precision and 
completeness the proven and undisputed facts of 
this case.

A  golf course run by a club which was not “ in 
its nature distinctly private” —particularly one 
organized for business purposes and seeking 
profit from the use of its golf course—falls 
squarely within the broad general circumference 
of the language of Section 40 and is not to be ex­
cluded therefrom merely because within the illus­
trations which Section 40 is “ deemed to include”  
a golf course was not specifically mentioned at 
the time of the plaintiffs’ expulsion.

Section 40 does two things. It states a general 
category, and then, in order to reduce uncertainty 
in the application of such general category, it 
gives some specific instances which the category 
is “ deemed to include.”  Such language is not 
language of limitation and restriction. On the 
contrary, it expressly affirms that the general 
category is larger than the list of illustrations, 
precisely as the whole of a circle is larger than 
any of the points within it to which attention is 
directed. If there could by any unimaginable 
possibility have been doubt as to this truth prior 
to the 1938 Constitutional Amendment, there 
could thereafter not even be a theoretical doubt, 
for the Amendment restates the category in 
terms of absolute conclusiveness and imposes 
that interpretation as the supreme law.

6. The respondent’s brief attempts to convince 
itself that because the last session of the Legis­
lature added golf courses to the list of illustra­
tions contained in Section 40 of the Civil Rights



6

Law, therefore golf courses operated by such a 
defendant as this and in such a manner were not 
previously within the scope of the Section. This 
is a wild non sequitur; and not even the respond­
ent attempts thereby to write golf courses out 
from under the 1938 Constitutional Amendment.

The enactment to which the respondent alludes 
confirms, rather than negates, our interpretation 
of the Civil Eights Law. At the time when it was 
passed, the Appellate Division had without opin­
ion held against the plaintiffs in this case. The 
Legislature had the clear right to an opinion 
that by that decision its will and intent had been 
misinterpreted, and to express itself accordingly.

For example, the list of illustrations in Sec­
tion 40 does not include the airplane. Yet, no 
one would have the audacity to argue from this 
omission that an airplane, not distinctly private 
in its nature, could be the scene of discrimination 
because of race, creed or color. By the same 
token, an inclusion by the Legislature of the 
word “ airplane”  in the list of illustrations could 
by no possibility exclude it from the previous 
inclusiveness of the language of the Section.

Section 40 does not expressly mention art gal­
leries or dance halls or lecture halls. No mention 
even is made of baseball fields, stadiums, prize 
fight arenas, public beaches and places of public 
worship. Is it conceivable that, even without the 
Constitutional Amendment, Section 40 has not al­
ways been applicable to them and will not cease 
to be presently applicable to them if hereafter 
the Legislature, as a matter of precaution, shall 
include them by name among the illustrations of 
its meaning.

Furthermore, since the adoption of the 1938 
Constitutional Amendment, it is no longer im­



7

portant to inquire what the Legislature did dr did 
not think was or was not fully covered by Section 
40. The question now is what The People of 
the State of New York, in whom the ultimate 
sovereignty resides, thought they were prohibit­
ing by the direct words of the Amendment.

7. The respondent’s brief endeavors to con­
tend that the “ signs”  erected on the connecting 
neighboring highway and illustrated in Plain­
tiffs ’ Exhibits 2, 3 and 4 were not erected by the 
respondent, but by some unnamed and unidenti­
fied local business men.

This contention is wholly irrelevant as well as 
not the full truth. As we have shown at pages
21- 25 of our Main Brief, the officers and mem­
bers of this Club were local business men,—and 
the most prominent ones at that. The respondent 
made no attempt to prove that those whom it 
calls (p. 19) “ the Down Town Business Men of 
Central Valley”  were not also, for the most part 
at least, members and officers of the respondent 
itself. Certainly the high officers of the Tele­
phone Company on whose property these “ signs”  
were erected were both officers and incorporators 
of the respondent. (See our Main Brief, pp.
22- 23.)

The respondent’s brief refers to these “ signs”  
as (p. 19):

“ erected by the local busines men, known as 
‘ Down Town Business Men of Central Val­
ley.’ ”

No such title, name or organization is referred 
to in the testimony. The folio number which the 
respondent cites merely says (fol. 181):



8

“ This was erected by the business men of 
what they call the down town business sec­
tion. That is in the lower part of Central 
Valley on the way to the golf course.”

But whoever erected these signs, they had re­
mained there for three or four years on public 
view and to the knowledge of the officers of the 
respondent and of all others who passed over 
that highway to the golf course. (See our Main 
Brief, pp. 21-23.) Obviously, the respondent not 
only acquiesced in these signs and was glad to 
take the benefit thereof, but by long association 
therewith it confirmed the correctness of their 
public declaration of the nature of the respond­
ent’s golf course.

Dated, June 2, 1942.

Respectfully submitted,

D avid C oral,
Attorney for Plaintiffs-Appellants.

Charles H . T u ttle , 
S toddard B. Colby,

Of Counsel.









307 B A B  PRESS, INO., 47 WEST ST., NEW YORK. BO. 9— 0157-8

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