Sissle v. Harvey, Inc.; Delaney v. Golf Club Records and Briefs
Public Court Documents
June 29, 1936 - June 2, 1942

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Brief Collection, LDF Court Filings. Sissle v. Harvey, Inc.; Delaney v. Golf Club Records and Briefs, 1936. 35fd6178-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b478fb8a-4860-403e-8ba1-4da2e66f39e9/sissle-v-harvey-inc-delaney-v-golf-club-records-and-briefs. Accessed July 12, 2025.
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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. . ■ ; - ■ ' - ' ’ . ’ ' . ■ ■ - . ass 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 . V \ : B - v : ■ ■,>. ■ .;■' ;\ T -" - -"C , :VV • I?: :4v"'-/■.:-■■■'> • H ^g ’ S 'f - W 'v f S ' J r Jr J, - : -M^V ■ " ■ '4 .- 3 ^ : ' ■ f f 0 * S 5 ■f-s-:-' ; >; --' ̂ r.-■:,. • ->,.\< '■ ' ~' •,: ;f tfej yX-Vi IjJ ■ |f|! Sfe '- ' 7 ;.Vi“ >■ 4 ■ - - .\ • "> \ - ■ ;^V! . , . S ' ’? \ X < I 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 r . J f t* > • ' * £ • ; . | | o '■ C f ■;$ % -\Cy 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 [5172]