Avent v. North Carolina Petition for a Writ of Certiorari to the Supreme Court of North Carolina

    ? - a , i

| L > ,; -fv .ii 'S  c.

j (j yi % f  d V C  <?- V \ i 0 V >  *" 4

Xn C V 0 si v > <r> \

U | h  r  i c 4  s

A v c vTI

Cj  o V  £  >

]—OVV1 W < L

f c r ,  i ^

S V o H l e s

(P c \  0 r S 0 s\ 

a  w  '^/v 4 5



I n  THE

Supreme (Emtrt of thi> Muttpii States
October Term, 1960

No. 943

J ohn T homas Avent, Oat,t,is Napolis Brown, Shirley Mae 
Brown, F rank McGill Coleman, J oan H arris Nelson, 
Donovan P hillips, and Lacy Carrole Streeter,

Petitioners,
—v.—

State oe North Carolina.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

Thurgood Marshall 
J ack Greenberg 
J ames M. Nabrit, I I I  

10 Columbus Circle 
New York 19, New York

; L. C. Berry, J r.
W illiam A. Marsh, J r.
F. B. McK issick 
C. 0. P earson 
W. G. P earson 
M. H ugh T hompson

Durham, North Carolina
Attorneys for Petitioners

E lwood H. Chisolm 
W illiam jl. Coleman, J r.
L ouis H. P ollak 
Charles A. Reich 
Spottswood W. R obinson, III

Of Counsel



I N D E X
PAGE

Citations to Opinions Below........................................... 1

Jurisdiction ......,.............................................................  1

Questions Presented ..................................................... 2

Statutory and Constitutional Provisions Involved .... 3

Statement ...............................................................   3

How the Federal Questions Were Raised and Decided 6 

Reasons for Oran ting the Writ .....................................  11
I—The State of North Carolina has enforced racial 

discrimination contrary to the equal protection 
and due process clauses of the Fourteenth 
Amendment to the Constitution of the United 
S tates................................................. ................. 12

II—The criminal statute applied to convict peti­
tioners gave no fair and effective warning that 
their actions were prohibited; petitioners’ con­
duct violated no standard required by the plain 
language of the law; thereby their conviction 
offends the due process clause of the Four­
teenth Amendment and conflicts with principles
announced by this Court...................................  20

III—The decision below conflicts with decisions of 
this Court securing the Fourteenth Amend­
ment right to freedom of expression ............ . 28

Conclusion............................................................................... - 30

Appendix la



11

PAGE

T able of Cases

Baldwin v. Morgan, -----  F. 2d -----  (5th Cir. No.
18280, decided Feb. 17, 1961) ...................................  13

Barrows v. Jackson, 346 U. S. 249 ................................  13
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 ......  18
Bolling v. Sharpe, 347 U. S. 497 .................................... 13
Boman v. Birmingham Transit Co., 280 F. 2d 531----- 13
Breard v. Alexandria, 341 TJ. S. 622 ............................  28
Brown v. Board of Education, 347 U. S. 483 .............. 13
Buchanan v. Warley, 245 U. S. 6 0 ............................ 13,18
Burstyn v. Wilson, 343 U. S. 495 .............................. - 29
Burton y. Wilmington Parking Authority, 29 U. S. L. 

Week 4317 (April 17, 1961) ........................ 14,16,18,19

Chaplinsky v. New Hampshire, 315 U. S. 568 .............. 26
Civil Rights Cases, 109 TJ. S. 3 ................................... 14,18
Cooper v. Aaron, 358 TJ. S. 1 .............................. -....... - 13

District of Columbia v. John R. Thompson Co., 346
TJ. S. 100....................................................................18, 22

Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Rel. Ref. Man. 2334 (1959) .............. 29

Gayle v. Browder, 352 U. S. 903 ....................... ............  13
Gibson v. Mississippi, 162 U. S. 565 .........................14,19

Herndon v. Lowry, 301 U. S. 242 .................... ........... 24, 26

Lanzetta v. New Jersey, 306 U. S. 451 ..................22, 24, 25
Lochner v. New York, 198 U. S. 45 ................ ..... .......... 18

•

McBoyle v. United States, 283 U. S. 25 .....................23, 25
Marsh v. Alabama, 326 U. S. 501 ................................15,18



Ill

PAGE

Martin v. Strutters, 319 U. S. 141 ................................  29
Maryland v. Williams, 44 Lab. Eel. Eef, Man. 2357

(1959) ............................... ......................... .............. . 28
Monroe v. Pape,----- U. S .------, 5 L. ed. 2d 492 (1961) 13
Munn v. Illinois, 94 IT. S. 113.......................................  18

N. A. A. C. P. v. Alabama, 357 U. S. 449 .....................13, 29
N. L. R. B. v. American Pearl Button Co., 149 F. 2d

258 (8th Cir. 1945) ................ ..................................... 27
N. L. R. B. v. Fansteel Metal Corp., 306 U. S. 240 ___  27

Pennsylvania Coal Co. v. Mahon, 260 IT. S. 393 ..........  18
People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 (1948) 28 
Pierce v. United States, 314 U. S. 306 ......................... 22

Railway Mail Ass’n v. Corsi, 326 U. S. 88 .................  18
Republic Aviation Corp. v. National Labor Relations 

Board, 324 U. S. 793 .................................................. 27

Schenck v. United States, 249 U. S. 47 ......................... 29
Screws v. United States, 325 U. S. 911...................... . 13
Shelley v. Kraemer, 334 U. S. 1 ................ ........... .... ...13,15
State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295

(1958) ..........._...........................................................20,21
Strauder v. West Virginia, 100 U. S. 303 ......... ...........  14
Stromberg v. California, 283 U. S. 359 ...................... . 29

Thompson v. City of Louisville, 362 U. S. 199 ..........  22
Thornhill v. Alabama, 310 U. S. 88 ............... ............  29

United States v. Cardiff, 344 U. S. 174......................... 23
United States v. L. Cohen Grocery Co., 255 U. S. 81 .... 24
United States v. Weitzel, 246 U. S. 533 .................. ...23, 24
United States v. Willow River Power Co., 324 U. S. 499 18 
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 23 
United Steelworkers v. N. L. R. B., 243 F. 2d 593 (D. C.

Cir. 1956) 27



IV

PAGE

Valle v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) ..........  13

Western Turf Asso. v. Greenberg, 204 U. S. 359 ......  18

S t a t u t e s

Code of Ala., Tit. 14, §426 ..............................................  25
Compiled Laws of Alaska Ann. 1958, Cum. Supp. Vol.

Ill, §65-5-112 ..............................................................  25
Arkansas Code, §71-1803 ........................... -.................. 25
Connecticut Gen. Stat. (1958 Rev.) §53-103 ........ -........ 25
D. C. Code §22-3102 (Supp. VII, 1956) .......................  25
Florida Code, §821.01 .................................................... 25
Hawaii Rev. Code, §312-1..............................................  25
Illinois Code, §38-565 .....................................................  25
Indiana Code, §10-4506 .................................................. 25
Mass. Code Ann. C. 266, §120.......................................  25
Michigan Statutes Ann. 1954, Vol. 25, §28.820(1) ....... 25.
Minnesota Statutes Ann. 1947, Vol. 40, §621.57 ..........  25
Mississippi Code, §2411 ................................................  25
Nevada Code, §207.200 ......  25
N. C. Gen. Stat. §14-126.................................................. 21
N. C. Gen. Stat. §14-134 ....................................3,6,7,8,21
Oregon Code, §164.460 .................................................. 25
Ohio Code, §2909.21 .......   25



V

PAGE

Code of Virginia, 1950, §18.1-173 ............-......... -.......- 25

Wyoming Code, §6-226 .................................... -.......... - 25
28 U. S. C. §1257(3) ........ .......... .............. ............. -..... 2

O t h e r  A u t h o r it ie s

Ballantine, “Law Dictionary” (2d Ed. 1948) 436 ......  26
“Black’s Law Dictionary” (4th Ed. 1951) 625 ..........  26
Pollitt, “Dime Store Demonstrations: Events and 

Legal Problems of the First Sixty Days,” 1960 Duke 
Law Journal 315...... ....................................... -......—- 20

5 Powell on Real Property 493 (1956) .....................  18



I n  t h e

Supreme (Hum*! of tlu' llnttrii States
October Term, 1960 

No............

J o h n  T h o m a s  A v e n t , Ca llis  N apolis  B r o w n , S h ir l e y  M ae 
B r o w n , F r a n k  M cG il l  C o lem a n , J oan H arris N e l so n , 
D onovan P h il l ip s , a n d  L acy C arrole S t r eeter ,

Petitioners,
—v.—

S tate of N orth  C arolina .

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF NORTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of North Carolina 
entered in the above-entitled cause on January 20, 1961.

Citations to Opinions Below
The opinion of the Supreme Court of North Carolina is 

reported at 118 S. E. 2d 47 and is set forth in the appendix 
attached hereto, infra, p. la.

Jurisdiction

The judgment of the Supreme Court of North Carolina 
was entered January 20, 1961 (Clerk’s certificate attached 
hereto, infra, App., p. 22a).1 On April 4, 1961, time for

1 The Clerk’s certificate recites that final judgment was entered 
on January 20, 1961. The record, however, contains no actual form



2

filing a petition for writ of certiorari was extended by the 
Chief Justice to and including May 4, 1961. Jurisdiction 
of this Court is invoked pursuant to 28 U. S. C. §1257(3), 
petitioners having asserted below and claiming here, denial 
of rights, privileges and immunities secured by the Four­
teenth Amendment to the Constitution of the United States.

Q uestions P resented

1. Whether the due process and equal protection clauses 
of the Fourteenth Amendment suffer the state to use its 
executive and judiciary to enforce racial discrimination in 
a business that has for profit opened its property' to the 
general public while using the state criminal trespass stat­
ute to enforce racial discrimination within the same prop­
erty.

2. Whether, where the criminal statute applied to con­
vict petitioners gave no fair and effective warning that 
their actions were prohibited, and their conduct violated no 
standard required by the plain language of the law, the 
conviction offends the due process clause of the Fourteenth 
Amendment.

3. Whether the decision below conflicts with decisions 
of this Court securing the Fourteenth Amendment right 
to liberty of expression.

of judgment. Upon inquiry to the Clerk, he informed counsel for 
petitioners that the judgment is a paper prepared by the Clerk. 
Because stay of execution was obtained before he prepared this 
paper, he did not actually complete it and place it in the record.



3

Statutory and C onstitutional 
P rovisions Involved

1. This ease involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves North Carolina General Stat­
utes, §14-134:

Trespass on land after being forbidden. “If any 
person after being forbidden to do so, shall go or enter 
upon the lands of another, without a license therefor, 
he shall be guilty of a misdemeanor, and on conviction, 
shall be fined not exceeding fifty dollars or imprisoned 
not more than thirty days.”

Statement

This is one of 2 cases filed here today (the other is State 
v. Fox, No. 442, Supreme Court of North Carolina, Fall 
Term, 1960 reported at 118 S. E. 2d 58) involving whether 
a state may use its criminal trespass statute to enforce 
racial segregation according to the customs of the com­
munity in one portion of a commercial establishment other­
wise open to the public without segregation. The issues 
are similar to those presented by Garner, Briscoe and 
Boston v. State of Louisiana, Nos. 617, 618 and 619, re­
spectively, certiorari granted March 20, 1961, in which a 
state employed a statute forbidding disturbing the peace 
for this purpose.

May 6, 1960, petitioners, five Negro students from North 
Carolina College, Durham, North Carolina (R. 35, 40, 44- 
45, 48, 49) and two white students from Duke University, 
Durham (R. 42, 47) were customers of Ivress’s Department 
Store, Durham. The store, in a five story building (R. 20)



4

has approximately fifty counters (including a “stand-up” 
lunch counter) which serve Negroes and whites without 
racial distinction (R. 22). No sign at the store’s entrance 
barred or conditioned Negro patronage (R. 22). Petitioners 
made various purchases (R. 36, 40, 43, 47, 48, 49), as some 
of them had in the past as regular customers (R. 36, 41, 
43, 45, 48), and in time went to the basement lunch counter. 
Here a sign stated “Invited Guests and Employees Only” 
(R. 21, 23). No writing further elucidated this sign’s mean­
ing, but the manager testified that although no invitations 
as such were sent out, white persons automatically were 
considered guests; Negroes and whites accompanied by 
Negroes were not (R. 22-23). The counter was bordered by 
an iron railing (R. 21) and petitioners entered through the 
normal passageway (R. 38).

Some of the petitioners had requested and had been 
denied service on previous occasions at this counter (R. 
38). However, they “continued to try” and at this time 
again “went there for service” (R. 38). They expected to 
be served at the basement lunch counter because they had 
been served upstairs (R. 50). They had not been arrested 
previously for trespassing and were not arrested for tres­
passing upon entering the store through its main doors. 
Nor did they expect to be arrested for trespassing on this 
occasion (R. 38, 44, 50).

Petitioners were participants in an informal student or­
ganization which opposed racial segregation (R. 40), and 
felt they had a right to service at Kress’s basement lunch 
counter after having been customers in other departments 
(R. 40, 42, 50; and see R. 46 (objection to question sus­
tained)). Some had picketed the store to protest its policy 
of welcoming Negroes’ business while refusing them lunch 
counter service (R. 37, 42, 50).



5

The manager again declined to serve them. He stated 
that if Negroes wanted service they might obtain it at the 
back of the store (R. 24), or at a stand-up counter upstairs 
(R. 22), and asked them to leave (E. 21).

“It is the policy of our store to wait on customers depen­
dent upon the custom of the community” (E. 22), he testi­
fied. “It is not the custom of the community to serve 
Negroes in the basement luncheonette, and that is why 
we put up the signs ‘Invited G-uests and Employees Only’ ” 
(R. 23).

When petitioners remained seated awaiting service, the 
manager called the police to enforce his demand (E. 21). 
An officer promptly arrived and asked petitioners to leave 
(R. 21). Upon refusal the officer arrested them for tres­
passing (E. 21, 4). Petitioners wTere indicted in the Su­
perior Court of Durham County, the indictments stating 
that each petitioner

“with force and arms, . .. . did unlawfully, willfully 
and intentionally after being forbidden to do so, enter 
upon the land and tenement of S. H. Kress and Co. 
store . . . said S. H. Kress and Co., owner, being then 
and there in actual and peaceable possession of said 
premises, under the control of its manager and agent, 
W. K. Boger, who had, as agent and manager, the 
authority to exercise his control over said premises, 
and said defendant after being ordered by said W. K. 
Boger, agent and manager of said owner, S. II. Kress 
and Co., to leave that part of the said store reserved 
for employees and invited guests, willfully and unlaw­
fully refused to do so knowing or having reason to 
know that . . . [petitioner] had no license therefor, 
against the form of the statute in such case made and 
provided and against the peace and dignity of the 
state.” (R. 2, 3, 4, 5, 6,7,8.)



6

Each indictment identified each petitioner as “CM” 
(colored male) (R. 3, 4, 7, 8), “WM” (white male) (R. 5), 
“CF” (colored female) (R. 6), or “WF” (white female) 
(R. 9). Defendants made motions to quash the indictment 
(see infra, pp. 6-7), which raised defenses under the Four­
teenth Amendment to the United States Constitution. 
These wTere denied (R. 10-12).

Petitioners were tried June 30 and July 1, 1960 (R. 20). 
They pleaded not guilty (R. 15) and were found guilty (R. 
15). Various federal constitutional defenses (see infra, 
pp. 7-9), were made throughout and at the close of the 
trial, but were overruled. Petitioners Coleman, Phillips 
and Callis Napolis Brown were sentenced to thirty days 
imprisonment in the common jail of Durham County to 
work under the supervision of the State Prison Depart­
ment (R. 16, 17, 18). Petitioner Streeter was sentenced 
similarly to twenty days (R. 19). Petitioner Avent was 
sentenced to fifteen days in the Durham County jail (R. 
15). Prayer for judgment was continued in the cases of 
petitioners Shirley Mae Brown and Joan Harris Nelson 
(R. 16-17).

Error was assigned, again raising and preserving fed­
eral constitutional defenses (see, infra, pp. 9-11), and the 
case was heard by the Supreme Court of North Carolina 
which affirmed on January 20, 1961 (Clerk’s certificate fol­
lowing court’s opinion).

H ow the F ederal Q uestions  
W ere Raised and D ecided

Prior to trial petitioners filed motions to quash the in­
dictment.

The Negro petitioners alleged that G. S. 14-134 was un­
constitutionally applied to them in that while using facili-



7

ties of S. H. Kress and Company, which was licensed by 
the City and County of Durham to carry on business open 
to the general public, they were charged with trespass on 
account of race and color contrary to the equal protection 
and due process clauses of the Fourteenth Amendment; 
that G. S. 14-134 denied due process of law secured by the 
Fourteenth Amendment in that it was unconstitutionally 
vague; that G. S. 14-134 was unconstitutional under the due 
process and equal protection clauses of the Fourteenth 
Amendment because the arrest was made, to aid S, H. 
Kress and Company, which was open to the public, in en­
forcing its whims and caprices against serving members 
of the Negro race on the same basis as members of other 
races, all of whom had been invited to use said establish­
ment; that the defendants who were on the premises of
S. H. Kress and Company pursuant to an invitation to the 
general public, were denied the use of said establishment 
solely because of race and color, and were arrested for at­
tempting to exercise the right of invitees to equal treatment, 
contrary to the due process and equal protection clauses 
of the Fourteenth Amendment (R. 10-12).

The white petitioners made identical allegations except 
that instead of stating that they were denied constitutional 
rights because of race, they charged that they were indicted 
because of association with the Negro petitioners (R. 12- 
14).

The motions to quash were denied and exception was 
taken thereto (R. 12,14).

Following the State’s evidence the Negro petitioners 
made Motions for Dismissal as of Nonsuit (R. 26-35). 
These alleged that petitioners entered S. H. Kress’s store 
to shop and use its facilities; that they had purchased other 
articles in the store; had been trading there for a long 
time prior to arrest; had entered the store in orderly fash-



8

ion; and were arrested when they took seats and requested 
service at the lunch counter. The motions prayed for non­
suit pursuant to the Fourteenth Amendment in that en­
forcement of G. S. 14-134 in these circumstances was state 
action forbidden by the equal protection and due process 
clauses of the Fourteenth Amendment; that defendants 
were denied rights secured by the Civil Eights Act of 1866 
which assures to all citizens the same right in every state 
and county as is enjoyed by white citizens to purchase 
personal property; that S. H. Kress and Company was 
operating under a license of the City of Durham and, 
therefore, petitioners’ arrest at the owner’s behest violated 
the rights secured by the Fourteenth Amendment to the 
Constitution of the United States; that G. S. 14-134 denied 
due process of law secured by the Fourteenth Amendment 
in that it was vague; that G. S. 14-134 denied due process 
of law and the equal protection of the laws in that it was 
applied to carry out the whims and caprices of the pro­
prietor against members of the Negro race; and that peti­
tioners were denied rights secured by the due process and 
equal protection clauses of the Fourteenth Amendment by 
being arrested for attempting to exercise rights to equal 
treatment as invitees of S. H. Kress and Company. These 
motions were denied and exception was taken thereto (E. 
30).

Similar motions filed on behalf of the white petitioners 
alleged that they had been denied these rights because of 
association with Negroes (E. 30-33). These motions were 
denied and exception was taken thereto (E. 33).

Additional Motions for Dismissal as of Nonsuit alleged 
that S. H. Kress was performing an economic function in­
vested with the public interest; that petitioners were peace­
fully upon the premises; that there was no basis for the 
charge other than an effort to exclude petitioners from



9

the store solely because of race; that petitioners were at 
the same time excluded from equal service at the prepon­
derant number of other eating establishments in the City 
of Durham, and that the charge recited by the indictment 
denied to petitioners due process of law and the equal 
protection of the laws secured by the Fourteenth Amend­
ment.

The motion also alleged that petitioners were at all times 
upon an area essentially public; at no time were they defi­
ant or in breach of the peace; that they were peacefully 
exercising rights of assembly and speech to protest racial 
segregation; that the prosecution was procured for the 
purpose of preventing petitioners from speaking and other­
wise peacefully protesting the refusal of the preponderant 
number of stores open to the public in the City of Durham 
to permit Negroes to enjoy certain facilities and that the 
arrests were in aid of this policy all contrary to the due 
process and equal protection clauses of the Fourteenth 
Amendment.

These motions were denied and exceptions were taken 
thereto (R. 34-35).

Following the close of petitioners’ case they renewed 
their written motions to quash the indictments and for dis­
missal as of nonsuit. This motion was denied and exception 
was taken thereto (R. 51).

Assignments of Error were filed against the action of 
the Court in overruling the Motion to Quash (Assignments 
1 and 2, R. 70), in overruling the motion for judgment as 
of nonsuit (Assignments 4, 5, 6 and 7, R. 71), and to the 
action of the Court in overruling defendants’ motions to 
quash the indictments and for dismissal as of nonsuit made 
at the close of all the evidence (Assignment 10, R. 71).



10

The Supreme Court of North Carolina disposed ad­
versely of these constitutional claims. It concluded its 
opinion by stating:

“All of the assignments of error by the defendants 
have been considered, and all are overruled. Defen­
dants have not shown the violation of any of their 
rights, or of the rights of any one of them, as guar­
anteed by the 14th Amendment-to the Federal Con­
stitution, and by Article I, §17, of the North Carolina 
Constitution.” (App. p. 21a.)

In explication it held that:
“In the absence of a statute forbidding discrimina­

tion based on race or color in restaurants, the rule is 
well established that an operator of a privately owned 
restaurant privately operated in a privately owned 
building has the right to select the clientele he will 
serve, and to make such selection based on color, race, 
or White people in company with Negroes or vice 
versa, if he so desires. He is not an innkeeper. This 
is the common law.” (App. p. 7a.)

Moreover, the opinion held that:| ......
“ ‘The right of property is a fundamental, natural, 

inherent, and inalienable right. It is not ex gratia from 
the legislature, but ex debito from the Constitution. 
In fact, it does not owe its origin to the Constitutions 
which protect it, for it existed before them. It is some­
times characterized judicially as a sacred right, the 
protection of which is one of the most important ob­
jects of government. The right of property is very 
broad and embraces practically all incidents which 
property may manifest. Within this right are included



11

the right to acquire, hold, enjoy, possess, use, man­
age, . . . property.’ 11 Am. Jur., Constitutional Law, 
§335.” (App. p. 11a.)

To the argument that the action taken belowr constitutes 
state action contrary to the due process and equal protec­
tion clauses of the Fourteenth Amendment, the Court held:

“Defendants misconceive the purpose of the judi­
cial process here. It is to punish defendants for unlaw­
fully and intentionally trespassing upon the lands of 
S. H. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner.” (Emphasis sup­
plied.) (App. p. 12a.)

Moreover, no freedom of speech and assembly were de­
nied, the Court held:

“No one questions the exercise of these rights by the 
defendants, if exercised at a proper place and hour. 
However, it is not an absolute right.” (App. p. 16a.)

R easons fo r  Granting the W rit

This case involves substantial questions affecting im­
portant constitutional rights, resolved by the court below 
in conflict with principles expressed by this Court.



12

I.
T he State o f  N orth Carolina has en forced  racial d is­

crim in ation  contrary to  the equal p rotection  and due  
process clauses o f  the F ourteenth  A m endm ent to the  
C onstitution o f  the U nited  States.

Petitioners seek certiorari to the Supreme Court of North 
Carolina, having unsuccessfully contended below that their 
conviction constitutes state enforcement of racial discrimi­
nation contrary to the equal protection and due process 
clauses of the Fourteenth Amendment. In rejecting peti­
tioners’ claim, the court below held that “ . . . the purpose 
of the judicial process” was “ . . .  to punish defendants 
for unlawfully and intentionally trespassing upon the lands 
of S. H. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner” (App. p. 12a). An­
swering the claim that this was state action prohibited by 
the Fourteenth Amendment, the court below replied that 
the right of property is “fundamental, natural, inherent 
and inalienable,” being “not ex gratia from the legislature, 
but ex debito from the Constitution” (App. p. 11a); that 
the right could be characterized as “sacred” ; and that the 
North Carolina trespass laws were “color blind,” their sole 
purpose being to protect property from trespassers (Id.). 
The Court held that the police and judicial action in arrest­
ing and convicting petitioners “cannot fairly be said to be 
state action enforcing racial segregation in violation of the 
14th Amendment to the Federal Constitution” (App. p. 
13a).

But from the officer’s orders to depart to the final judg­
ment of the highest state court, this has been the state’s 
cause. Judicial acts of state courts are “state action” un-



13

der the Fourteenth Amendment. Shelley v. Kraemer, 334 
IT. S. I.2 Equally clear, the Amendment reaches conduct of
the police. Cf. Monroe v. Pape, -----  II. S. ----- , 5 L. ed.
2d 492 (1961); Screws v. United States, 325 IT. S. 91. See
also Baldwin v. Morgan,----- F. 2d------(5th Cir. No. 18280,
decided Feb. 17, 1961); Boman v. Birmingham Transit Co., 
280 F. 2d 531, 533, note 1 (5th Cir. 1960); Valle v. Stengel, 
176 F. 2d 697 (3rd Cir. 1949), all of which condemn police 
enforcement of racial segregation in public places.

State action which enforces racial discrimination and 
segregation is condemned by the Fourteenth Amendment’s 
equal protection clause. Buchanan v. Warley, 245 IT. S. 
60; Brown v. Board of Education, 347 IT. S. 483; Shelley 
v. Kraemer, supra; Gayle v. Browder, 352 U. S. 903. More­
over, state inflicted racial discriminations, bearing* no ra­
tional relation to a permissible governmental purpose, 
offend the concept of due process. Bolling v. Sharpe, 347 
U. S. 497; Cooper v. Aaron, 358 IT. S. 1.

For the state to infect the administration of its criminal 
laws by using them to support lunch counter segregation

2 The subject of judicial action as “state action” is treated ex­
haustively in Part II of Chief Justice Vinson’s opinion which 
concludes:

“The short of the matter is that from the time of the adop­
tion of the Fourteenth Amendment until the present, it has 
been the consistent ruling of this Court that the action of the 
States to which the Amendment has reference, includes action 
of state courts and state judicial officials. Although in con­
struing the terms of the Fourteenth Amendment, differences 
have from time to time been expressed as to whether particular 
types of state action may be said to offend the Amendment’s 
prohibitory provisions, it has never been suggested that state 
court action is immunized from the operation of those pro­
visions simply because the act is that of the judicial branch 
of the state government.” (Id. at 18.)

In addition to the many cases cited in Shelley, supra, at 14-18, 
see also: Barrows v. Jackson, 346 U. S. 249; N.A.A.C.P. v. Alabama, 
357 U. S. 449, 463.



14

as an aspect of the “customs” of a segregated society, 
offends the salutary principle that criminal justice must 
be administered “without reference to consideration based 
upon race.” Gibson v. Mississippi, 162 U. S. 565, 591.

Indeed, when the Supreme Court of North Carolina held 
that the state judicial process “enforces the clear, legal 
right of racial discrimination of the owner” (App. p. 12a), 
it “construed this legislative enactment as authorizing dis­
criminatory classification based exclusively on color.” Cf. 
Mr. Justice Stewart, concurring in Burton v. Wilmington 
Parking Authority, 29 U. S. Law Wk. 4317, 4320. And, as 
Mr. Justice Frankfurter wrote, dissenting in the Burton 
case, “for a State to place its authority behind discrimina­
tory treatment based solely on color is indubitably a denial 
by a State of the equal protection of the laws, in violation 
of the Fourteenth Amendment.” (Ibid.)

The Fourteenth Amendment from the beginning has 
reached and prohibited all racial discrimination save that 
“unsupported by State authority in the shape of laws, cus­
toms, or judicial or executive proceedings,” and that which 
is “not sanctioned in some way by the State,” Civil 
Bights Cases, 109 U. S. 3, 17. “State action of every kind 
. . . which denies . . . the equal protection of the laws” 
is prohibited by the Amendment. Id. at 11; cf. Burton v. 
Wilmington Parking Authority, supra. The Fourteenth 
Amendment was “primarily designed” to protect Negroes 
against racial discrimination. Strauder v. West Virginia, 
100 U. ,S. 303, 307. “The words of the Amendment, it is 
true, are prohibitory, but they contain a necessary implica­
tion of a positive immunity, or right, most valuable to the 
colored race—the right to exemption from . . . legal dis­
criminations, implying inferiority in civil society, lessening 
the security of their enjoyment of the rights which others 
enjoy.. . . ” (Ibid.)



15

The fact that a property interest is involved does not 
imply a contrary result. I t is the state’s power to enforce 
such interests that is in issue. For, as the Court said in 
Shelley v. Kraemer, 334 U. S. 1, 22:

“ . . . It would appear beyond question that the power 
of the State to create and enforce property interests 
must be exercised within the boundaries defined by the 
Fourteenth Amendment. Cf. Marsh v. Alabama, 326 
U. S. 501.”

Indeed, as the Court said in Marsh v. Alabama, 326 U. S. 
501, 505-506:

“We do not agree that the corporation’s property 
interests settle the question. The State urges in effect 
that the corporation’s right to control the inhabitants 
of Chickasaw is coextensive with the right of a home- 
owner to regulate the conduct of his guests. We can­
not accept that contention. Ownership does not always 
mean absolute dominion. The more an owner, for his 
advantage, opens up his property for use by the public 
in general, the more do his rights become circumscribed 
by the statutory and constitutional rights of those who 
use it.”

Here, certainly, is the case of “an owner, [who] for his 
advantage, opens up his property for use by the public in 
general.”

Petitioners contend that the states may not, under the 
Fourteenth Amendment, use their police3 and judiciary

3 The arresting officer took full responsibility for the arrest: 
“After Mr. Boger asked these defendants to leave, in my 

presence, and they refused to leave, that constituted trespass­
ing. He did not sign the warrants after the arrest. I did not 
have a warrant with me when we made the arrest. Mr. Boger 
did not sign the warrant before we arrested them” (R. 25).



16

to enforce racial discrimination for a business open to the 
general public. Analyzing the totality of circumstances, 
with regard for the nature of the property interests as­
serted, and the state’s participation in their creation and 
enforcement no property interest of such an enterprise 
warrants departing from the Fourteenth Amendment’s 
clear stricture against racial discrimination. As this Court 
said recently in Burton v. Wilmington Parking Authority, 
29 U. S. Law Week 4317, 4318 (April 17, 1961):

“Because the virtue of the right to equal protection of 
the laws could lie only in the breadth of its applica­
tion, its constitutional assurance was reserved in terms 
whose imprecision was necessary if the right were to 
be enjoyed in the variety of individual-state relation­
ships which the Amendment was designed to embrace. 
For the same reason, to fashion and apply a precise 
formula for recognition of state responsibility under 
the Equal Protection Clause is ‘an impossible task’ 
which ‘this Court has never attempted.’ Kotch v. Pilot 
Comm’rs, 330 U. S. 552, 556. Only by sifting facts and 
weighing circumstances can the nonobvious involve­
ment of the State in private conduct be attributed its 
true significance.”

What is the “property right” involved here? S. H. Kress 
and Company did business in a commercial building opened 
to the public as a whole for the business advantage of the 
owner. There was no practice of selecting customers or 
limiting the classes of persons who may enter. The store 
was not, as some may be, limited to men, women, adults, 
white persons or Negroes. Negroes were accommodated 
throughout the building except the basement lunch counter 
(R. 22). No claim or interest in privacy was exercised by 
the owner in the customary use of this building.



17

The specific area in dispute, the lunch counter, was an 
integral part of this single commercial establishment, and 
like the entire premises was open to the public to do busi­
ness for profit. It was not severed for the owner’s private 
use; nor was it like a stockroom, employees’ working area, 
or a living space connected to a store.

There is no issue concerning protection of property from 
use alien to its normal intended function. Petitioners 
sought only to purchase food. Whatever their motives (a 
frankly acknowledged desire to seek an end to racial dis­
crimination), their actions conformed to those of ordinary 
purchasers of food. Petitioners were not disorderly or 
offensive. The manager’s sole objection was that some of 
them were Negroes and the others accompanied Negroes. 
The sole basis of exclusion, ejection, arrest and conviction 
was race. The “crime” was being Negroes, or being with 
Negroes, at a “white only” lunch counter.

Moreover, the manager testified that the lunch counter 
was segregated “in the interest of public safety” (R. 22), 
and that company policy throughout the country w7as “de­
pendent upon the customs of the community” (R. 22). Ob­
viously then, the asserted right here is related to participa­
tion in, or conformity with, a community custom of segrega­
tion, the maintenance of a segregated society.

Therefore, the asserted “property” right was simply the 
right to discriminate solely on the basis of race, and accord­
ing to the customs of the community, in one integral part 
of a single commercial building open to the general public 
against persons otherwise welcome in all other parts of 
the premises. This, indeed, may be called a “property 
right” but as thus revealed, it is far from the “sacred, nat­
ural, inherent and inalienable” property right (App. p. 
11a) which the generalized language of the court below



18

held to be at stake. For as Mr. Justice Holmes wrote, dis­
senting in Lochner v. New York, 198 U. S. 45, 76, “ [g]en- 
eral propositions do not decide concrete cases.”

The arbitrary quality of the “property right” supported 
by the state’s trespass law here is emphasized by the fact 
that the Kress Company required segregation only for 
customers who sit to eat; those standing to eat in the same 
store were served without any racial discrimination (B. 22). 
Cf. Burton v. Wilmington Parking Authority, supra, term­
ing exclusion of a Negro as offensive in a restaurant and 
his acceptance in other parts of the same building “irony 
amounting to grave injustice.” 29 U. S. L. Week 4317.

This “property interest” hardly need be protected in 
order for our form of constitutional government to survive 
(see App.-pp. 13a, 15a). Obviously, for example, this type 
of “property interest” may be taken away by the states with­
out denying due process of law.4 Indeed, mere reference 
to the common law duty of common carriers and innkeepers 
demonstrates that an owner’s use of his property affects 
the nature of his dominion over it. Cf. Civil Rights Cases, 
109 U. S. 3, 25. This Court has said on several occasions, 
“that dominion over property springing from ownership is 
not absolute and unqualified.” Buchanan v. Warley, 245 
U. S. 60, 74; United States v. Willow River Power Co., 324 
U. S. 499, 510; Marsh v. Alabama, 326 U. S. 501, 506; 
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 417 (Jus­
tice Brandeis’s dissenting opinion). See Munn v. Illinois, 
94 U. S. 113; 5 Powell on Beal Property 493 et seq. (1956).

4 See for example, Western Turf Asso. v. Greenberg, 204 TJ. S. 
359; cf. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28; Railway 
Mail Ass’n v. Corsi, 326 U. S. 88; District of Columbia v. John R. 
Thompson Co., 346 U. S. 100.



19

This case does not involve a claim that the state must 
affirmatively provide a legal remedy against “private” 
racial discrimination. (Cf. Burton v. Wilmington Parking. 
Authority, 29 U. S. Law Week 4317, April 17, 1961). 
Rather, petitioners assert only their immunity from 
criminal prosecution. Nor is there involved judicial en­
forcement of racial discrimination by trespass laws to 
protect an owner’s interest in maintaining privacy in the 
use of his property, such as a home or private club. Coun­
tervailing considerations that may be involved when a state 
acts to protect its citizens’ interest in their privacy, are not 
present. There is no issue as to whether state trespass laws 
may be used to enforce an exclusion for no reason. Finally, 
there is no claim that the Fourteenth Amendment bars 
enforcement of trespass laws generally.

Consequently, the ease involves only this highly im­
portant issue: Whether the state may use its executive 
and judicial machinery (particularly its criminal laws) to 
enforce 'racial discrimination for a business company that 
by its own choice and for its own advantage has opened 
its commercial property to the public. Petitioners submit 
that prior decisions of this Court demonstrate this ques­
tion should be answered No.

This case merits plenary review in this Court because of 
the substantial public importance of the questions relating 
to the extent to which a state may use its criminal laws to 
enforce racial segregation. As indicated to the Court in 
petitions for certiorari filed and granted in Garner, Bris­
coe, and Hoston v. State of Louisiana, Nos. 617, 618 and 
619, October Term 1960, this problem is one which has 
arisen in many different communities and many state courts 
since the spring of 1960. See, Pollitt, “Dime Store Demon-



20

strations: Events and Legal Problems of the First Sixty 
Days,” 1960 Duke Law Journal 315. Review of this case 
will facilitate the proper disposition of many similar crim­
inal prosecutions.

II.
T h e crim inal statute app lied  to  convict p etition ers  

gave no fa ir  and effective w arning that th eir  actions  
w ere proh ib ited ; petition ers’ conduct v io lated  no  
standard required  by the p la in  language o f  the law ; 
thereby their  con v iction  offends the due process clause  
o f  the F ourteenth  A m endm ent and conflicts w ith p rin ­
c ip les announced  by this Court.

Petitioners were convicted under North Carolina Gen­
eral Statute, §14-134, which provides:

If any person after being forbidden to do so, shall 
go or enter upon the lands of another without a license 
therefor, he shall be guilty of a misdemeanor, and on 
conviction, shall be fined not exceeding fifty dollars, 
or imprisoned not more than thirty days.

Although the statute in terms prohibits only going on 
the land of another after being forbidden to do so, the 
Supreme Court of North Carolina has now construed the 
statute to prohibit also remaining on property when 
directed to leave following lawful entry. (See Opinion 
below, App. p. 12a). Stated another way, the statute 
now is applied as if “remain” were substituted for “enter.” 
Expansive judicial interpretation of the statute began by 
a statement in State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 
295 (1958) (a case in which defendants deliberately ig-



21

nored racial signs posted outside an ice cream parlor and 
also refused to leave upon demand),5 92 years after en­
actment of the law.6

The instant case is the first unambiguous holding under 
§14-134 which convicts defendants who went upon property 
with permission and merely refused to leave when directed.

Without a doubt petitioners and all Negroes were wel­
come within the store—apart from the basement lunch 
counter. The arresting officer stated that “The only crime 
committed in my presence, as I saw, it was their failure 
and refusal to leave when they were ordered to do so by 
the Manager” (R. 26). There were no discriminatory signs 
outside the store (R. 23). No sign forbade Negroes and 
white persons who accompany Negroes to sit at the lunch 
counter; the sign said merely “Employees and Invited 
Guests Only” (R. 21). Whatever petitioners’ knowledge 
of the store’s racial policy as it had been practiced, there 
was no suggestion that they had ever been forbidden to 
go to the lunch counter and request service. The Court’s 
conclusory statement that defendants “entered” (tres­
passed) “after having been forbidden to do so” (App. 
19a), was simply a holding that' defendants’ acts in fail­
ing to leave when directed violated the statute.

5 In the Clyburn opinion, and here, the State court explained
construction of §14-134 by reference to analogous construction of 
a statute prohibiting forcible entry and detainer (N. C. Gen. Stat. 
§14-126), which had been construed to apply to peaceful entry 
followed by forcible opposition to a later demand to leave. The 
Court held that “entry” was synonymous with “trespass” in both 
statutes (14-126 and 14-234). (14-134 does not use the word
“entry” ; it states “go or enter upon”.)

The facts of the Clyburn case are summarized in the opinion 
below in this case (App. pp. 8a-9a).

6 The Statute was first enacted in 1866. North Carolina Laws, 
Special Session, Jan., 1866, C. 60.



22

Absent the special expansive interpretation given §14- 
134 by the North Carolina Supreme Court the case would 
plainly fall within the principle of Thompson v. City of 
Louisville, 362 U. S. 199, and would be a denial of due 
process of law as a conviction resting upon no evidence 
of guilt. There was obviously no evidence that petitioners 
entered the premises “after having been forbidden to do 
so,” and the conclusion that they did rests solely upon the 
special construction of the law.

Under familiar principles the construction given a state’s 
statute by its highest court determines its meaning. How­
ever, petitioners submit that this statute has been so 
judicially expanded that it does not give a fair and ef­
fective warning of the acts it now prohibits. Rather, by 
expansive interpretation the statute now reaches more than 
its words fairly and effectively define, and as applied it 
therefore offends the principle that criminal laws must 
give fair and effective notice of the acts they prohibit.

The due process clause of the Fourteenth Amendment 
requires that criminal statutes be sufficiently explicit to 
inform those who are subject to them what conduct on 
their part will render them criminally liable. “All are 
entitled to be informed as to what the State commands or 
forbids”, Lametta v. New Jersey, 306 U. S. 451, 453, and 
cases cited therein in note 2.

Construing and applying federal statutes this Court has 
long adhered to the principle expressed in Pierce v. United 
States, 314 U. S. 306, 311:

. . . judicial enlargement of a criminal act by inter­
pretation is at war with a fundamental concept of 
the common law that crimes must be defined with ap­
propriate definiteness. Cf. Lanzetta v. New Jersey, 306 
U. S. 451, and cases cited.



23

In Pierce, supra, the Court held a statute forbidding false 
personation of an officer or employee of the United States 
inapplicable to one who had impersonated an officer of the
T. V. A. Similarly in United States v. Cardiff, 344 U. S. 
174, this Court held too vague for judicial enforcement a 
criminal provision of the Federal Food, Drug, and Cos­
metic Act which made criminal a refusal to permit entry 
or inspection of business premises “as authorized by” an­
other provision which, in turn, authorized certain officers 
to enter and inspect “after first making request and ob­
taining permission of the owner.” The Court said in Car­
diff, at 344 U. S. 174, 176-177:

The vice of vagueness in criminal statutes is the 
treachery they conceal either in determining what per­
sons are included or what acts are prohibited. Words 
which are vague and fluid (cf. United States v. L. 
Cohen Grocery Co., 255 U. S. 81) may be as much of 
a trap for the innocent as the ancient laws of Caligula. 
We cannot sanction taking a man by the heels for 
refusing to grant the permission which this Act on 
its face apparently gave him the right to withhold. 
That would be making an act criminal without fair 
and effective notice. Cf. Herndon v. Lowry, 301 U. S. 
242.

The Court applied similar principles in McBoyle v. United 
States, 283 U. S. 25, 27; United States v. Weitsel, 246 U. S. 
533, 543, and United States v. Wiltberger, 18 U. S. (5 
Wheat.) 76, 96. Through these cases runs a uniform ap­
plication of the rule expressed by Chief Justice Marshall:

It would be dangerous, indeed, to carry the prin­
ciple, that a case which is within the reason or mis­
chief of a statute, is within its provisions, so far as 
to punish a crime not enumerated in the statute, be-



24

cause it is of equal atrocity, or of kindred character, 
with those which are enumerated (Id. 18 U. S. (5 
Wheat.) at 96.)

The cases discussed above involved federal statutes con­
cerning which this Court applied a rule of construction 
closely aldn to the constitutionally required rule of fair 
and effective notice. This close relationship is indicated 
by the references to cases decided on constitutional grounds. 
The Pierce opinion cited for comparison Lansetta v. New 
Jersey, supra, and “cases cited therein,” while Cardiff 
mentions United States v. L. Cohen Grocery Co., supra, 
and Herndon v. Lowry, supra.

On its face the North Carolina trespass statute warns 
against a single act, i.e., going or entering upon the land 
of another “after” being forbidden to do so. “After” con­
notes a sequence of events which by definition excludes 
going on or entering property “before” being forbidden. 
The sense of the statute in normal usage negates its ap­
plicability to petitioners’ act of going on the premises with 
permission and later failing to leave when directed.

But by judicial interpretation “enter” was held syn­
onymous with “trespass,” and, in effect, also with “remain.” 
Here a legislative casus omissus was corrected by the 
court. But as Mr. Justice Brandeis observed in United 
States v. Weitzel, supra at 543, a casus omissus while not 
unusual, and often undiscovered until much time has 
elapsed, does not justify extension of criminal laws by 
reference to legislative intent.

Moreover, that the indictments specified both that peti­
tioners had entered after having been forbidden and also 
that they refused to leave after being ordered to do so, 
does not correct the unfairness inherent in the statute’s



25

failure specifically to define a refusal to leave as an of­
fense. As this Court said in Lametta v. New Jersey, 
supra:

It is the statute, not the accusation under it, that 
prescribes the rule to govern conduct and warns 
against transgression. See Stromberg v. California, 
283 IT. S. 359, 368; Lovell v. Griffin, 303 U. S. 444.

Petitioners do not contend for an unreasonable degree 
of specificity in legislative drafting. Some state trespass 
laws have specifically recognized as distinct prohibited 
acts the act of going upon property after being forbidden 
and the act of remaining when directed to leave.7

Converting by judicial construction the common English 
word “enter” into a word of art meaning “trespass” or 
“remain,” has transformed the statute from one which 
fairly warns against one act into a law which fails to 
apprise those subject to it “in language that the common 
word will understand, of what the law intends to do if a 
certain line is passed” (McBoyle v. United States, 283 U. S. 
27). Nor does common law usage of the word “enter”

7 See for example the following state statutes which do effectively 
differentiate between “entry” after being forbidden and “remain­
ing” after being forbidden. The wordings of the statutes vary but 
all of them effectively distinguish the situation where a person has 
gone on property after being forbidden to do so, and the situation 
where a person is already on property and refuses to depart after 
being directed to do so, and provide separately for both situations: 
Code of Ala., Title 14, §426; Compiled Laws of Alaska Ann. 1958, 
Cum. Supp. Yol. Ill, §65-5-112; Arkansas Code, §71-1803; Gen. 
Stat. of Conn. (1958 Rev.), §53-103; D. C. Code §22-3102 (Supp. 
VII, 1956); Florida Code, §821.01; Rev. Code of Hawaii, §312-1; 
Illinois Code, §38-565; Indiana Code, §10-4506; Mass. Code Ann. 
C. 266, §120; Michigan Statutes Ann. 1954, Yol. 25, §28.820(1) ; 
Minnesota Statutes Ann. 1947, Vol. 40, §621.57; Mississippi Code 
§2411; Nevada Code, §207.200; Ohio Code, §2909.21; Oregon Code, 
§164.460; Code of Virginia, 1960 Replacement Volume, §18.1-173; 
Wyoming Code, §6-226.



26

support the proposition that it is synonymous with “tres­
pass” or “remaining.” While “enter” in the sense of going 
on and taking possession of land is familiar (Ballantine, 
“Law Dictionary”, (2d Ed. 1948), 436; “Black’s Law 
Dictionary” (4th Ed. 1951), 625), its use to mean “re­
maining on land and refusing to leave it when ordered 
off” is novel.

Judicial construction often has cured criminal statutes 
of the vice of vagueness, but this has been construction 
which confines, not expands, statutory language. Compare 
Chaplinsky v. New Hampshire, 315 U. S. 568, with Herndon 
v. Lowry, 301 U. S. 242.

As construed and applied, the law in question no longer 
informs one what is forbidden in fair terms, and no longer 
warns against transgression. This failure offends the 
standard of fairness expressed by the rule against ex­
pansive construction of criminal laws and embodied in the 
due process clause of the Fourteenth Amendment.

III.

T he decision  below  conflicts w ith decisions o f  this  
Court securing  the F ourteen th  A m endm ent right to  
freed om  o f  expression .

Petitioners were engaged ip the exercise of free ex­
pression by means of verbal requests to the management 
and the requests implicit in seating themselves at the 
counter for nonsegregated lunch counter service. Their 
expression (asking for service) was entirely appropriate 
to the time and place in which it occurred. Certainly the 
invitation to enter an establishment carries with it the 
right to discuss and even argue with the proprietor con­
cerning terms and conditions of service so long as no 
disorder or obstruction of business occurs.



27

Petitioners did not shout, obstruct business, carry picket­
ing signs, give out handbills, or engage in any conduct 
inappropriate to the time, place and circumstances. And, 
as is fully elaborated above in Part I of this petition, there 
was no invasion of privacy involved in this case, since 
the lunch counter was an integral part of commercial prop­
erty open up to the public.

This Court and other courts on numerous occasions have 
held that the right of free speech is not circumscribed by 
the mere fact that it occurs on private property. The ex­
istence of a property interest is but one circumstance to 
be considered among many. In Marsh v. Alabama, supra, 
for example, this Court overturned the trespass conviction 
of Jehovah’s Witnesses who went upon the premises of a 
company town to proselytize holding that such arrest and 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. National Labor Relations Board, 
324 U. S. 793, the Court upheld the validity of the National 
Labor Eelations Board’s ruling that lacking special cir­
cumstances that might make such rules necessary, employer 
regulations forbidding all union solicitation on company 
property regardless of whether the workers were on their 
own or company time, constituted unfair labor practices.8

8 See also N. L, B. B. v. American Pearl Button Go., 149 F. 2d 258 
(8th Cir., 1945) ; United Steelworkers v. N. L. R. B., 243 F. 2d 593, 
598 (D. C. Cir., 1956) (reversed on other grounds) 357 U. S. 357. 
(“Our attention has not been called to any case under the Wagner 
Act or its successor in which it has been held that an employer can 
prohibit either solicitation or distribution of literature by em­
ployees simply because the premises are company property.

Employees are lawfully within the plant, and nonworking time 
is their own time. If Section 7 activities are to be prohibited, 
something more than mere ownership and control must be shown.”) 

Compare N. L. B. B. v. Pansteel Metal Corp., 306 U.S. 240, 252 
(employees seized plant; discharge held valid: “high-handed pro­
ceeding without shadow of legal right”).



28

In Martin v. Struthers, 319 TJ. S. 141, this Court held 
unconstitutional an ordinance which made unlawful ringing 
doorbells of residence for the purpose of distributing hand­
bills, upon considering the free speech values involved— 
“[d]oor to door distribution of circulars is essential to 
the poorly financed causes of little people,” at p. 146 
and that the ordinance precluded individual private house­
holders from deciding whether they desired to receive the 
message. But effecting “an adjustment of constitutional 
rights in the light of the particular living conditions of the 
time and place”, Breard v. Alexandria, 341 U. S. 622, 626, 
the Court, assessing a conviction for door-to-door commer­
cial solicitation of magazines, contrary to a. “Green Biver” 
ordinance, concluded that the community “speak [ing] for 
the citizens,” 341 U. S. 644, might convict for crime in the 
nature of trespass after balancing the “conveniences be­
tween some householders’ desire for privacy and the pub­
lisher’s right to distribute publications in the precise way 
that those soliciting for him think brings the best results.” 
341 TJ. S. at 644. Because, among other things, “ [subscrip­
tion may be made by anyone interested in receiving the 
magazines without the annoyances of house to house can­
vassing,” ibid., the judgment was affirmed.

Similarly, following an appraisal of the speech and 
property considerations involved, a Baltimore City Court, 
State of Maryland v. Williams, 44 Lab. Bel. Bef. Man. 
2357, 2361 (1959), has on Fourteenth Amendment and 
Labor Management Belations Act grounds, decided that 
pickets may patrol property within a privately owned shop­
ping center. See also People v. Barisi, 193 Misc. 934, 86 
N. Y. S. 2d 277, 279 (1948), which held that picketing within 
Pennsylvania Station was not trespass; the owners opened 
it to the public and their property rights were “circum­
scribed by the constitutional rights of those who use it” ;



29

Freeman v. Retail Clerks Union, Washington Superior 
Court, 45 Lab. Rel. Ref. Man. 2334 (1959), which denied 
relief to a shopping center owner against picketers on his 
property, relying on the Fourteenth Amendment.

The liberty secured by the due process clause of the Four­
teenth Amendment insofar as it protects free expression 
is not limited to verbal utterances, though petitioners here 
expressed themselves by speech. The right comprehends 
picketing, Thornhill v. Alabama, 310 U. S. 88; free distri­
bution of handbills, Martin v. Struthers, 319 U. S. 141; 
display of motion pictures, Burstyn v. Wilson, 343 U. S. 
495; joining of associations, N. A. A. C. P. v. Alabama, 357
U. S. 449; the display of a flag or symbol, Stromberg v. 
California, 283 U. S. 359. What has become known as a 
“sit in” is a different but obviously well understood symbol, 
a meaningful method of communication and protest.

In the circumstances of this case, the only apparent state 
interest being preserved was that of maintaining the man­
agement’s rights to exclude Negroes from the lunch counter. 
The management itself sought nothing more. Rut as Justice 
Holmes held in Schenck v. United States, 249 U. S. 47, 52, 
the question is “whether the words used are used in such 
circumstances and are of such a nature as to create a clear 
and present danger that they will bring about the sub­
stantive evil” that the state has a right to prevent.

The state has no interest in preserving such discrimina­
tion and certainly has no valid interest in suppressing 
speech which is entirely appropriate to the time and place 
and does not interfere with privacy, when the speech urges 
an end to racial discrimination imposed in accordance with 
the customs of the community.



30

CONCLUSION

W herefore, fo r  the forego in g  reasons, it  is resp ect­
fu lly  subm itted that the p etition  fo r  a writ o f  certiorari 
should  be granted.

Respectfully submitted,

T hurgood Marshall 
J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

L. C. Berry, J r.
W illiam A. Marsh, J r.
F . B. McK issick

C. 0 . P earson 
W. G. P earson

M. H ugh T hompson 
Durham, North Carolina

Attorneys for Petitioners

E lwood H. Chisolm 
W illiam T. Coleman, J r. 
L ouis H. P ollak 
Charles A. Reich 
Spottswood W. R obinson, III

Of Counsel



Opinion by Mr. Justice Mallard

SUPREME COURT OP NORTH CAROLINA 
Fall Term 1960 

No. 654—Durham

State

J ohn T homas A vent 

State

L acy Carkole S treeter 

State

F rank McGill Coleman 

State

Shirley Mae Brown 

State

Donovan P hillips 

State

Callis Napolis B rown 

State

J oan H arris Nelson



2a

Appeal by defendants from Mallard, J 30 Jnne 1960 
Criminal Term of Durham.

Seven criminal actions, based on seven separate indict­
ments, which were consolidated and tried together.

The indictment in the case of defendant John Thomas 
Avent is as follows: “The Jurors for the State upon their 
oath present, That John Thomas Avent, late of the County 
of Durham, on the 6th day of May, in the year of our Lord 
one thousand nine hundred and sixty, with force and arms, 
at and in the county aforesaid, did unlawfully, willfully 
and intentionally after being forbidden to do so, enter upon 
the land and tenement of S. H. Kress and Company store 
located at 101-103 W. Main Street in Durham, N. C., said 
S. H. Kress and Company, owner, being then and there in 
actual and peaceable possession of said premises, under 
the control of its manager and agent, W. K. Boger, who 
had, as agent and manager, the authority to exercise his 
control over said premises, and said defendant after being 
ordered by said W. K. Boger, agent and manager of said 
owner, S. H. Kress and Company, to leave that part of the 
said store reserved for employees and invited guests, will­
fully and unlawfully refused to do so knowing or having 
reason to know that he the said John Thomas Avent, 
defendant, had no license therefor, against the form of the 
statute in such case made and provided and against the 
peace and dignity of the State.”

The other six indictments are identical, except that each 
indictment names a different defendant.

The State’s evidence tends to show the following facts:
On 6 May 1960 S. H. Kress and Company was operating 

a general variety store on Main Street in the city of Dur­
ham. Its manager, W. K. Boger, had complete control and 
authority over this store. The store has two selling floors



3a

and three stockroom floors, and is operated to make a 
profit. On the first floor the store has a stand-up counter, 
where it serves food and drinks to Negroes and White 
people. The luncheonette department serving food is in 
the rear of the basement on the basement floor. On 6 May 
1960 S. H. Kress and Company had iron railings, with 
chained entrances, separating the luncheonette department 
from other departments in the store, and had signs posted 
over that department stating the luncheonette department 
was operated for employees and invited guests only. Cus­
tomers on that date in the luncheonette department were 
invited guests and employees.

On 6 May 1960 these seven defendants, five of whom are 
Negroes and two of whom (Joan Harris Nelson and Frank 
McGill Coleman) are members of the White race, were in 
the store. Before the seven defendants seated themselves 
in the luncheonette department, and after they seated them­
selves there, W. K. Boger had a conversation with each one 
of them. He told them that the luncheonette department 
was open for employees and invited guests only, and asked 
them not to take seats there. When they seated themselves 
there, he asked them to leave. They refused to leave until 
after they were served. He called an officer of the city 
police department. The officer asked them to leave. They 
did not do so, and he arrested them, and charged them with 
trespassing. The seven defendants were not employees of 
the store. They had no authority or permission to be in the 
luncheonette department.

On cross-examination W. K. Boger testified in substance: 
S. H. Kress and Company has 50 counters in the store, 
and it accepts patronage of Negroes at those 50 counters. 
White people are considered guests. Had the two White 
defendants come into the store on 4 May 1960, I would not 
have served them in the luncheonette department for the



4a

reason they had made every effort to boycott the store. 
He would have served the White woman defendant, but he 
asked her to leave when she gave her food to a Negro. The 
object of operating our store in Durham is definitely to 
make a profit. It is the policy of our store to operate all 
counters dependent upon the customs of the community. It 
is our policy in Durham to refuse to serve Negroes at the 
luncheonette department downstairs in our seating arrange­
ment. It is also our policy there to refuse to serve White 
people in the company of Negroes. We had signs all over 
the luncheonette department to the effect that it was open 
for employees and invited guests.

Captain Cannady of the Durham Police Department tes­
tified in substance: As a result of a call to the department 
he went to S. H. Kress and Company’s store. He saw on 
6 May 1960 all the defendants, except Coleman, seated at 
the counter in the luncheonette department. He heard 
W. K. Boger ask each one of them to leave, and all refused. 
He asked them to leave, and told them they could either 
leave or be arrested for trespassing. They refused to 
leave, and he charged them with trespassing. He knew 
W. K. Boger was manager of the store. He makes an 
arrest when an offense is committed in his presence, and 
the defendants were trespassing in his presence.

When the State rested its case, all seven defendants tes­
tified. The five Negro defendants testified in substance: 
All are students at North Carolina College for Negroes in 
Durham. Prior to 6 May 1960, Negroes, including some 
of the Negro defendants, had been refused service by S. H. 
Kress and Company in its luncheonette department. All 
are members of a student organization, which met on the 
night of 5 May 1960, and planned to go the following day 
to Kress’ store, make a purchase, and then to go to the 
luncheonette department, take seats, and request service.



5a

The following day the five Negro defendants did what they 
planned.

The White woman defendant, Joan Harris Nelson, is a 
student at Duke University. Prior to 6 May 1960 she had 
not attended the meetings at the North Carolina College 
for Negroes for the purpose of securing service at the 
luncheonette department of the Kress store, though she 
has attended some of the meetings since then. She had 
been on the picket lines in front of the store. On 6 May 
1960 she went into the Kress store, bought a ball-point pen, 
went to the luncheonette department, and took a seat. She 
was served, and while eating she offered to buy some food 
for Negroes from the North Carolina College, who were 
sitting on each side of her. When she was served food, 
no Negroes were in the luncheonette department. Mr. 
W. K. Boger asked her to leave because she was not in­
vited, and was antagonizing customers. She did not leave, 
and was arrested.

The White male defendant, Frank McGill Coleman, is a 
student at Duke University. On 6 May 1960 he went into 
the Kress store, bought a mother’s day card, joined his 
friend, Bob Markham, a Negro, and they went to the lunch­
eonette department, and seated themselves. He asked for 
service, and was refused. Mr. W. K. Boger asked them to 
leave, telling them they were not invited guests, and he 
refused to do so, and was arrested. Prior to this date he 
had carried signs in front of the Kress store and other 
stores discouraging people to trade with them.

Some, if not all, of the defendants had been engaged 
previously in picketing the Kress store, and in urging a 
boycott of it, unless their demands for service in the lunch­
eonette department were acceded to.

Jury Verdict: All the defendants, and each one of them, 
are guilty as charged.



6a

From judgments against each defendant, each defendant 
appeals.

T. W. Bruton, Attorney General, and R alph 
Moody, Assistant Attorney General, for the 
State.

W illiam A. Marsh, J r., M. H ugh T hompson, 
C. 0. P earson, W. G. P earson, F. B. Mc- 
K issick and L. C. B erry, J r., for Defen­
dants-Appellants.

Parker, J . Each defendant—five of whom are Negroes 
and two members of the White race—before pleading to 
the indictment against him or her made a motion to quash 
the indictment. The court overruled each motion, and each 
defendant excepted. The motions were made in apt time. 
S. v. Perry, 248 N. C. 334, 103 S. E. 2d 404; Carter v Texas, 
177 U. S. 442, 44 L. Ed. 839; 27 Am. Jur., Indictments and 
Information, §141.

At the close of all the evidence each defendant made a 
motion for judgment of compulsory nonsuit. Each motion 
was overruled, and each defendant excepted.

S. H. Kress and Company is a privately owned corpora­
tion, and in the conduct of its store in Durham is acting 
in a purely private capacity to make a profit for its share­
holders. There is nothing in the evidence before us, or in 
the briefs of counsel to suggest that the store building in 
which it operates is not privately owned. In its basement 
in the luncheonette department it operates a restaurant. 
“While the word ‘restaurant’ has no strictly defined mean­
ing, it seems to be used indiscriminately as a name for all 
places where refreshments can be had, from a mere eating- 
house and cook-shop, to any other place where eatables 
are furnished to be consumed on the premises. Citing 
authority. It has been defined as a place to which a person



7a

resorts for the temporary purpose of obtaining a meal or 
something to eat.” S. v. Shoaf, 179 N. C. 744, 102 8. E. 705. 
To the same effect see, 29 Am. Jur., (1960), Innkeepers, 
§9, p. 12. In Richards v. Washington F. <& M. Ins. Co., 60 
Mich. 420, 27 N. W. 586, the Court said: “A ‘restaurant’ 
has no more defined meaning, (than the English word 
shop), and is used indiscriminately for all places where 
refreshments can be had, from the mere eating-house or 
cookshop to the more common shops or stores, 'where the 
chief business is vending articles of consumption and con­
fectionery, and the furnishing of eatables to be consumed 
on the premises is subordinate.” Quoted with approval in 
Michigan Packing Co. v. Messaris, 257 Mich. 422, 241 N. W, 
236, and restated in substance in 43 C. J. S., Innkeepers, 
§1, subsection b, p. 1132.

No statute of North Carolina requires the exclusion of 
Negroes and of White people in company with Negroes 
from restaurants, and no statute in this State forbids 
discrimination by the owner of a restaurant of people on 
account of race or color, or of White people in company 
with Negroes. In the absence of a statute forbidding dis­
crimination based on race or color in restaurants, the rule 
is well established that an operator of a privately owned 
restaurant privately operated in a privately owned build­
ing has the right to select the clientele he will serve, and 
to make such selection based on color, race, or White 
people in company with Negroes or vice versa, if he so 
desires. He is not an innkeeper. This is the common law. 
S. v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295; Williams v. 
Howard Johnson’s Restaurant, 268 F. 2d 845; Slack v. 
Atlantic White Tower System, Inc., 181 F. Supp. 124, af­
firmed by the U. S. Court of Appeals for the 4th Circuit
27 December 1960,--- - F. 2d----- ; Alpaugh v. Wolverton,
184 Va. 943, 36 S. E. 2d 906; Wilmington Parking Author­
ity v. Burton (Del.), 157 A. 2d 894; Nance v. Mayflower



8a

Restaurant, 106 Utah 517, 150 P. 2d 773. See 10 Am. Jar., 
Civil Eights, §21; Powell v. TJts, 87 F. Supp. 811; and An­
notation 9 Am. & Eng. Ann. Cas. 69—statutes securing 
equal rights in places of public accommodation. We have 
found no case to the contrary after diligent search, and 
counsel for defendants have referred us to none.

In Alpaugh v. Wolverton, supra, the Court said: “The 
proprietor of a restaurant is not subject to the same duties 
and responsibilities as those of an innkeeper, nor is he 
entitled to the privileges of the latter. Citing authority. 
His rights and responsibilities are more like those of a 
shopkeeper. Citing authority. He is under no common-law 
duty to serve every one who applies to him. In the absence 
of statute, he may accept some customers and reject others 
on purely personal grounds. Citing authority.”

In Boynton v. Virginia, 5 December 1960,----- U. S .------ ,
----- L. Ed. ------ , the Court held that a Negro passenger
in transit on a paid Interstate Trailways’ journey had a 
right to food service under the Interstate Commerce Act 
in a Bus Terminal Restaurant situate in the Bus Station, 
and operated under a lease by a company not affiliated 
with the Trailways Bus Company. Then the Court in the 
majority opinion deliberately stated: “We are not hold­
ing that every time a bus stops at a wholly independent 
roadside restaurant the Interstate Commerce Act requires 
that restaurant service be supplied in harmony with the 
provisions of that Act.”

In 8. v. Clyburn, supra, the defendants were tried on 
similar warrants charging that each defendant unlawfully 
entered upon the land of L. A. Coletta and C. V. Poreelli 
after being forbidden to do so and did “unlawfully refuse 
to leave that portion of said premises reserved for mem­
bers of the White Race knowing or having reason to know 
that she had no license therefor.” Coletta and Poreelli 
did business under the trade name of Royal Ice Cream



9a

Company retailing ice cream and sandwiches. The build­
ing in which they did business is separated by partition 
into two parts. One part has a door opening on Dowd 
Street, the other a door opening on Roxboro Street. Each 
portion is equipped with booths, a counter and stools. Over 
the Dowd Street door is a large sign marked Colored, over 
the Roxboro Street door is a similar sign marked White. 
Sales are made to different races only in the portions of 
the building as marked. Defendants, all Negroes, went 
into the building set apart for White patrons, and re­
quested service. Coletta asked them to leave. They re­
fused to do so, and they were arrested by a police officer 
of the city of Durham. All were convicted, and from judg­
ments imposed, all appealed to the Supreme Court. We 
found No Error in the trial. The Court in its opinion said: 
“The right of an operator of a private enterprise to select 
the clientele he will serve and to make such selection based 
on color, if he so desires, has been repeatedly recognized 
by the appellate courts in this nation. Madden v. Queens 
County Jockey Club, 72 N. E. 2d 697 (N. Y .); Terrell Wells 
Swimming Pool v. Rodriguez, 182 S. W. 2d 824 (Tex.); 
Booker v. Grand Rapids Medical College, 120 N. W. 589 
(Mich.); Younger v. Judah, 19 S. W. 1109 (Mo.); Goff v. 
Savage, 210 P. 374 (Wash.); De La Ysla v. Publix Theatres 
Corporation, 26 P. 2d 818 (Utah); Brown v. Meyer Sani­
tary Milk Co., 96 P. 2d 651 (Kan.); Horn v. Illinois Cent. 
R. Co., 64 N. E. 2d 574 (111.); Coleman v. Middlestaff, 
305 P. 2d 1020 (Cal.); Fletcher v. Coney Island, 136 N. E. 
2d 344 (Ohio); Alpaugh v. Wolverton, 36 S. E. 2d 906 
(Va.). The owner-operator’s refusal to serve defendants, 
except in the portion of the building designated by him, 
impaired no rights of defendants.”

In an Annotation in 9 A. L. R., p. 379, it is said: “It 
seems to be well settled that, although the general public



10a

have an implied license to enter a retail store, the pro­
prietor is at liberty to revoke this license at any time as 
to any individual, and to eject such individual from the 
store if he refuses to leave when requested to do so.” 
The Annotation cites cases from eight states supporting 
the statement. See to the same effect, Brookside-Pratt 
Min. Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A. L. E. 417, 
and Annotation in 33 A. L. E. 421.

This is said by Holmes, J., for the Court in Terminal 
Taxicab Co. v. Kutz, 241 U. S. 252, 256, 60 L. Ed. 984, 987, 
a suit to restrain the Public Utilities Commission from 
exercising jurisdiction over the business of a taxicab com­
pany: “It is true that all business, and for the matter of 
that, every life in all its details, has a public aspect, some 
bearing upon the welfare of the community in which it is 
passed. But however it may have been in earlier days as 
to the common callings, it is assumed in our time that an 
invitation to the public to buy does not necessarily entail 
an obligation to sell. It is assumed that an ordinary shop 
keeper may refuse his wares arbitrarily to a customer whom 
he dislikes. . . ”

None of the eases cited in defendants’ brief are ap­
plicable to the situation which obtains in the instant cases. 
For instance, Cooper v. Aaron, 358 U. 8. 1, 3 L. Ed. 2d 
5—public education; Boman v. Birmingham Transit Co., 
280 F. 2d 531—public transportation; Valle v. Stengel, 
176 F. 2d 697—a case in respect to an amusement park in 
the State of New Jersey, which State has a statute, E. S. 
10: 1-3, N. J. S. A., providing that no proprietor of a 
place of public resort or amusement. “ . . . shall directly 
or indirectly refuse, withhold from, or deny to, any per­
son any of the accommodations, advantages, facilities or 
privileges thereof . . .  on account of race, creed or color,”
E. S. 10: 1-6, N. J. S. A.



11a

“The right of property is a fundamental, natural, in­
herent, and inalienable right. It is not ex gratia from the 
legislature, but ex debito from the Constitution. In fact, it 
does not owe its origin to the Constitutions which protect it, 
for it existed before them. It is sometimes characterized 
judicially as a sacred right, the protection of which is one 
of the most important objects of government. The right 
of property is very broad and embraces practically all 
incidents which property may manifest. Within this right 
are included the right to acquire, hold, enjoy, possess, use, 
manage, . . . property.” 11 Am. Jur., Constitutional Law, 
§335.

G. S. 14-134 has been the statute law of this State for 
nearly a hundred years. It reads: “If any person after 
being forbidden to do so, shall go or enter upon the lands 
of another, without a license therefor, he shall be guilty 
of a misdemeanor, and on conviction, shall be fined not 
exceeding fifty dollars, or imprisoned not more than thirty 
days.”/ Then follows a proviso as to obtaining a license 
to go upon land of another to look for estrays. This statute 
is color blind. Its sole purpose is to protect people from 
trespassers on their lands. It is concerned with only three 
questions. One, was the land in either the actual or con­
structive possession of another! Two, did the accused in­
tentionally enter upon the land of another? Three, did 
the accused so enter upon the land of another after being 
forbidden to do so by the person in possession? 8. v. Baker, 
231 N. C. 136, 56 S. E. 2d 424.

G. S. 14-126 has been the statute law of this State for 
many years, and reads: “No one shall make entry into 
any lands and tenements, or term for years, but in case 
where entry is given by law; and in such ease, not with 
strong hand nor with multitude of people, but only in a 
peaceable and easy manner; and if any man do the con­
trary, he shall be guilty of a misdemeanor.” This statute



12a

is also color blind. “Its purpose is to protect possession 
only.” S. v. Baker, supra. We have repeatedly held in 
applying G. S. 14-126 that a person who remains on the 
land of another after being directed to leave is guilty of 
a wrongful entry even though the original entrance was 
peaceful. The word “entry” as used in each of these stat­
utes is synonymous with the word “trespass.” S. v. Cly- 
burn, supra.

The officer of the city of Durham had a right and duty 
to arrest all seven defendants in the luncheonette depart­
ment of the Kress store, because all of them were com­
mitting misdemeanors in his presence. Gf. S. 15-41. There 
is no merit in their contention that this constituted State 
action denying them rights guaranteed to them by the 
14th Amendment to the Federal Constitution and by Article 
I, §17, of the State Constitution. 8. v. Clyburn, supra.

Defendants in essence contend that the indictments 
should be quashed and the cases nonsuited because the 
judicial process here constitutes State action to enforce 
racial segregation in violation of their rights under the due 
process clause and under the equal protection of the laws 
clause of the 14th Amendment to the Federal Constitution, 
and in violation of their rights under Article I, §17, of the 
State Constitution, and further that G. S. 14-134 and G. S. 
14-126 are being unconstitutionally applied for the same 
purpose. Defendants misconceive the purpose of the 
judicial process here. It is to punish defendants for un­
lawfully and intentionally trespassing upon the lands of 
S. H. Kress and Company, and for an unlawful entry 
thereon, even though it enforces the clear legal right of 
racial discrimination of the owner. There is no merit to 
this contention.

The Court said in Shelley v. Kraemer, 334 TJ. S. 1, 92 
L. Ed. 1161, 3 A. L. R. 2d 441: “Since the decision of this 
Court in the Civil Rights Cases, 109 US 3, 27 L ed



13a

835, 3 S Ct 18 (1833), the principle has become firmly 
embedded in our constitutional law that the action in­
hibited by the first section of the Fourteenth Amendment 
is only such action as may fairly be said to be that of the 
States. That Amendment erects no shield against merely 
private conduct, however discriminatory or wrongful.” 
This interpretation has not been modified: Collins v. 
Handyman, 341 U. S. 651, 95 L. Ed. 1253; District of Colum­
bia v. Thompson Co., 346 TJ. S. 100, 97 L. Ed. 1480.

Private rights and privileges in a peaceful society living 
under a constitutional form of government like ours are 
inconceivable without State machinery by which they are 
enforced. Courts must act when parties apply to them—• 
even refusal to act is a positive declaration of law—, and, 
hence, there is a fundamental inconsistency in speaking of 
the rights of an individual who cannot have judicial recog­
nition of his rights. All the State did in these cases was 
to give or create a neutral legal framework in which S. H. 
Kress and Company could protect its private property 
from trespassers upon it in violation of G. S. 14-134 and 
G. S. 14-126. There is a recognizable difference between 
State action that protects the plain legal right of a per­
son to prevent trespassers from going upon his land after 
being forbidden, or remaining upon his land after a de­
mand that they leave, even though it enforces the cleared 
legal right of racial discrimination of the owner, and State 
action enforcing covenants restricting the use or occupancy 
of real property to persons of the Caucasian race. The 
fact that the State provides a system of courts so that 
S. H. Kress and Company can enforce its legal rights 
against trespassers upon its private property in violation 
of G. S. 14-134 and G. S. 14-126, and the acts of its judicial 
officers in their official capacities, cannot fairly be said 
to be State action enforcing racial segregation in violation 
of the 14th Amendment to the Federal Constitution. Such



14a

judicial process violates no rights of the defendants 
guaranteed to them by Article I, §17, of the State Con­
stitution. To rule as contended by defendants would mean 
that S. H. Kress and Company could enforce its rights 
against White trespassers alone, but not against Negro 
trespassers and White and Negro trespassers in company. 
Surely, that would not be an impartial administration of 
the law for it would be a denial to the White race of the 
equal protection of the law. If a land owner or one in 
possession of land cannot protect his natural, inherent and 
constitutional right to have his land free from unlawful 
invasion by Negro and White trespassers in a case like this 
by judicial process as here, because it is State action, then 
he has no other alternative but to eject them with a gentle 
hand if he can, with a strong hand if he must. Annotation 
9 A. L. R., p. 379 quoted above; 4 Am. Jur., Assault and 
Battery, §76, p. 167; 6 C. J. S., Assault and Battery, §20, 
(2). This is said in 4 Am. Jur., Assault and Battery, §76, 
p. 168: “Even though the nature of the business of the 
owner of property is such as impliedly to invite to his 
premises persons seeking to do business with him, he may, 
nevertheless, in most instances refuse to allow a certain 
person to come on his premises, and if such person does 
thereafter enter his premises, he is subject to ejection al­
though his conduct on the particular occasion is not wrong­
ful.” It is further said in the same work, same article, 
§78: “The right lawfully to eject trespassers is not limited 
to the owner or occupier of the premises, but may be 
exercised by his agent in any case where the principal 
might exercise the right.” The motive of the owner of 
land in ejecting trespassers from his premises is immaterial 
so long as he uses no more force than is necessary to ac­
complish his purpose. 6 C. J. S., Assault and Battery, p. 
821. White people also have constitutional rights as well 
as Negroes, which must be protected, if our constitutional



15a

form of government is not to vanish from the face of the 
earth.

This is said in an article designated “The Meaning of 
State Action” by Thomas P. Lewis, Associate Professor 
of Law, University ox Kentucky, and appearing in Colum­
bia Law Review, December 1960, Vol. 60, No. 8, in note 
134, page 1122: “State court recognition of the restau­
rateur’s private discrimination could be in the form of 
denial of any action against him by an aggrieved party. 
A related issue is the ability of the state to enforce through 
arrest and an action for trespass the discrimination of the 
private owner. None of the interpretations of Shelley 
(.Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161) of which 
the writer is aware, except Professor Ming’s, supra note 
92 (Racial Restrictions and the Fourteenth Amendment: 
The Restrictive Covenant Cases, 16 U. Chi. L. Rev. 203 
(1949)) would extend it to this kind of case.”

In Slack v. Atlantic White Tower System, Inc., supra, 
the Court said: “No doubt defendant might have had plain­
tiff arrested if she had made a disturbance or remained 
at a table too long after she -had been told that she would 
only be sold food to carry out to her ear. But that implied 
threat is present whenever the proprietor of a business 
refuses to deal with a customer for any reason, racial or 
other, and does not make his action state action or make 
his business a state agency.”

In S. v. Cooke, 248 N. C. 485, 103 S. E. 2d 846, the de­
fendants were convicted and sentenced on a charge that 
they did “unlawfully and willfully enter and trespass upon 
the premises of Gillespie Park Club, Inc., after having 
been forbidden to enter said premises.” We found no er­
ror. Their appeal was dismissed by a divided court by 
the United States Supreme Court. Wolfe v. North Caro­
lina, 364 U. S. 177, 4 L. Ed. 2d 1650. In neither the major­
ity opinion nor in the minority opinion was the question



16a

of State action referred to. It seems that if the United 
States Supreme Court had thought that the arrest and 
prosecution was State action, it would have reversed our 
decision. It seems further that the action of that Court 
in dismissing the appeal means that a State has the power 
to enforce through arrest and an action for trespass the 
discrimination of a private owner of a private business 
operated on premises privately owned.

There is no merit in defendants’ contention that all the 
cases should be nonsuited, because the demands that they 
leave Kress’ store, their arrest by an officer of the city 
of Durham, and the judicial process here, is an uncon­
stitutional interference with their constitutional rights of 
free speech, and of assembly to advocate and persuade for 
a termination of racial discrimination.

No one questions the exercise of these rights by the de­
fendants, if exercised at a proper place and hour. How­
ever, it is not an absolute right. The answer to this con­
tention is given by the Court in Kovacs v. Cooper, 336 
U. S. 77, 93 L. Ed. 513, 10 A. L. E. 2d 608: “Of course, 
even the fundamental rights of the Bill of Rights are not 
absolute. The Saia Case recognized that in this field by 
stating ‘The hours and place of public discussion can be 
controlled.’ It was said decades ago in an opinion of this 
Court delivered by Mr. Justice Holmes, SchencTc v. United 
States, 249 US 47, 52, 63 L ed 470, 473, 39 S Ct 247, 
that: ‘The most stringent protection of free speech would 
not protect a man in falsely shouting fire in a theatre and 
causing a panic. It does not even protect a man from 
an injunction against uttering words that may have all 
the effect of force.’ Hecklers may be expelled from as­
semblies and religious worship may not be disturbed by 
those anxious to preach a doctrine of atheism. The right 
to speak one’s mind would often be an empty privilege in



17a

a place and at a time beyond the protecting hand of the 
guardians of public order.”

The evidence in these cases shows that the White de­
fendants, and most, if not all, of the Negro defendants 
were freely and without molestation exercising these rights 
upon the streets of the city of Durham. However, they had 
no constitutional right to exercise these rights as tres­
passers in Kress’ store in violation of G. S. 14-134 and 
G. S. 14-126 in Kress’ store.

There is no merit in defendants’ contention that the 
indictments should be quashed, and the cases nonsuited, 
because S. H. Kress and Company is licensed by the city 
of Durham to operate a retail store, and therefore racial 
discrimination in the store cannot be enforced. The license 
is not in the record before us, and there is no suggestion 
by defendants that the license issued to S. H. Kress and 
Company contained any restrictions as to whom S. H. 
Kress and Company should serve. The answer to this 
contention, showing it is without merit, is set forth in 8. v. 
Clyburn, supra, in Slack v. Atlantic White Tower System,, 
Inc., supra, and in Williams v. Howard Johnson’s Restau­
rant, supra, and defendants’ contention is overruled upon 
authority of those cases. In the last case the Court said: 
“The customs of the people of a State do not constitute 
State action within the prohibition of the Fourteenth 
Amendment.”

Defendants further contend that the indictments should 
be quashed, and the cases nonsuited, because G. S. 14-134 
is too indefinite and vague to be enforceable under the due 
process clause of the 14th Amendment and under Article 
I, ^17, of the State Constitution, in that the statute does 
not require the person in charge of the premises to identify 
himself, and in that W. K. Boger did not identify himself 
when he asked them not to enter the luncheonette depart­
ment, and when he asked them to leave after they seated 
themselves. This contention is not tenable.



18a

G. S. 14-134 necessarily means that the person forbid­
ding a person to go or enter upon the lands of another 
shall be the owner or occupier of the premises or his agent, 
and that is an essential element of the offense to be proved 
by the State beyond a reasonable doubt. The statute is 
not too vague and indefinite to be enforceable as challenged 
by defendants, because it does not use the specific words 
that the person forbidding the entry shall identify himself. 
This is a matter of proof.

On a motion for judgment of compulsory nonsuit the 
State’s evidence is to be considered in the light most favor­
able to the State, and the State is entitled to the benefit of 
every reasonable intendment thereon and every reason­
able inference to be drawn therefrom. S. v. Corl, 250 N. C. 
252, 108 S. E. 2d 608. In our opinion, when the State’s 
evidence is so considered, it permits the reasonable in­
ference that all the defendants knew when W. K. Boger 
forbade them to go upon or enter the luncheonette depart­
ment, and requested them to leave after they had seated 
themselves there, he was the agent of S. H. Kress and 
Company in charge of the store, and we so hold.

Defendants contend that all the cases should be non­
suited because the evidence is insufficient to carry the case 
to the jury. All defendants introduced evidence. Having 
done so, they waived their motions for judgment of in­
voluntary nonsuit which they had made at the close of 
the State’s case, and must rely on their similar motions 
made at the close of all the evidence. G. S. 15-173.

Considering the State’s evidence in the light most favor­
able to the State, and not taking defendants’ evidence into 
consideration unless favorable to the State, or except when 
not in conflict with the State’s evidence, it may be used to 
explain or make clear the State’s evidence {S. v. Nall, 239 
N. C. 60, 79 S. E. 2d 354), as we are required to do in pass­
ing upon defendants’ motion made at the close of all the



19a

evidence, it tends to show that all the defendants without 
legal or constitutional right or bona fide claim of right 
entered the luncheonette department of S. H. Kress and 
Company after having been forbidden by W. K. Boger, 
the manager and agent of S. H. Kress and Company there, 
to do so, and after they had been requested by him to leave, 
refused to do so. The fact, that the violations by all de­
fendants of Gr. S. 14-126 and G. S. 14-134 were intentional, 
is shown clearly by their acts, by the two White defendants 
and by most, if not all, of the Negro defendants in urging 
people to boycott the Kress store, and further by the plan 
entered into by the Negro defendants on the night of 5 
May 1960 to go the following day to the Kress store, enter 
the luncheonette department there, take seats, and de­
mand service. The evidence was sufficient to carry the 
cases to the jury, and we so hold.

The motions to quash the indictments raise most, if not 
all, of the constitutional questions raised by the motions 
for judgments of compulsory nonsuit made at the close of 
all the evidence. All these questions have been considered 
by the Court and most, if not all, discussed in the opinion. 
In our opinion, and we so hold, the trial court properly 
overruled the motions to quash the indictments, and cor­
rectly submitted all the cases to the jury.

Defendants’ assignments of error relating to the evidence 
are without merit, and do not justify discussion.

Defendants’ assignment of error to the charge of the 
court to the jury is to the whole charge, without any state­
ment as to what part of it is, as they contend, error. Such 
an assignment of error is too general and indefinite to 
present any question for decision. 8. v. Dillard, 223 N. C. 
446, 27 S. E. 2d 85, and cases there cited. In that case the 
Court said: “Unpointed, broadside exceptions will not be 
considered. Citing authority. The Court will not go on a 
voyage of discovery to ascertain wherein the judge failed



20a

to explain adequately the law in the case. Citing author­
ity. The assignment must particularize and point out spec­
ifically wherein the court failed to change the law arising 
on the evidence.” Further, defendants in their brief make 
no mention of the charge, and no exception to the charge 
appears in the record, except in the assignment of error. 
An assignment of error will be disregarded when it is not 
supported by an exception in the record, but only by an 
exception appearing in the assignment of error. Barnette 
v. Woody, 242 N. C. 424, 88 S. E. 2d 223; Watters v. Par- 
risk, 252 N. C. 787, 115 S. E. 2d 1. The assignment of er­
ror as to the charge as a whole, not being mentioned, in 
defendants’ brief is taken as abandoned by defendants. 
Rules of Practice in the Supreme Court, Rule 28, 221 N. C. 
544; 8. v. Atkins, 242 N. C. 294, 87 S. E. 2d 507. However, 
a reading of the charge, which is in the record, shows that 
the trial judge correctly declared and explained the law 
arising on the evidence given in the cases, as required by 
G. S. 1-180, and in particular instructed the jury to the 
effect that if the defendants entered the luncheonette de­
partment of the Kress store after being forbidden under 
a bona fide claim of right and if they had reasonable 
grounds for such belief, and refused to leave after they 
had been requested to do so under such claim, as they 
contend their evidence tended to show, then there would 
be no criminal responsibility, and it would be the duty of 
the jury to acquit all defendants. S. v. Clyburn, supra; 
8. v. Fisher, 109 N. C. 817, 13 S. E. 878. This Court said in 
8. v. Crawley, 103 N. C. 353, 9 S. E. 409, which was a crim­
inal action for entry upon land after being forbidden: 
“A mere belief on his part that he had such claim would 
not be sufficient—he was bound to prove that he had rea­
sonable ground for such belief, and the jury should so 
find under proper instructions from the court. 8. v. Bryson, 
81 N. C. 595.” This Court said in S. v. Wells, 142 N. C.



21a

590, 55 S. E. 210: “True we have held in several well- 
considered decisions, that when the State proves there has 
been an entry on another’s land, after being forbidden, 
the burden is on the defendant to show that he entered 
under a license from the owner, or under a bona fide claim 
of right. And on the question of bona fides of such claim, 
the defendant must show that he not only believed he had 
a right to enter, but that he had reasonable grounds for 
such belief. S. v. Glenn, 118 N. C., 1194; 8. v. Durham, 121 
N. C., 546. But where there is evidence tending to show 
that the defendant believed and had reasonable ground to 
believe in his right to enter, then in addition to his right, 
the question of his bona fide claim of right must be in 
some proper way considered and passed upon before he 
can be convicted.” Defendants have nothing to complain 
of in respect to the charge, and their counsel evidently 
thought so by not mentioning the charge in their joint 
brief filed with us.

Defendants’ motions in arrest of judgment, which the 
court overruled, and -which defendants assign as error, are 
not mentioned in defendants’ brief, and are taken as 
abandoned by defendants.

All of the assignments of error by the defendants have 
been considered, and all are overruled. Defendants have 
not shown the violation of any of their rights, or of the 
rights of any one of them, as guaranteed by the 14th 
Amendment to the Federal Constitution, and by Article I, 
§17, of the North Carolina Constitution.

No Error.

A True Copy :

/ s /  Adrian J. Newton 
Clerk of Supreme Court of North Carolina.

[Seal]



22a

I n the Supreme Court of the State of 
North Carolina

State

J ohn T homas A  vent, L acy Carrole Streeter, F rank Mo- 
Gill Coleman, Shirley Mae Brown, Donovan P hil­
l i p s , Callis Napolis Brown and J oan H arris Nelson

I, Adrian J. Newton, Clerk of the Supreme Court of 
North Carolina, do hereby certify the foregoing to be a 
full, true and perfect copy of the record and the proceed­
ings in the above entitled case, as the same now appear 
from the originals on file in my office.

I further certify that the rules of this Court prohibit 
filing of petitions to rehear in criminal cases.

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this the 6th day of March, 1961.

Appeal docketed 
Case argued 
Opinion filed 
Final judgment entered

8 November 1960 
29 November 1960 
20 January 1961 
20 January 1961

Adrian J. Newton 
Clerk of the Supreme Court of 

the State of North Carolina



Supreme Court of the United States
October Term, I960

No. 943

JOHN THOMAS AVENT, CALLIS NAPOLIS BROWN 
SHIRLEY MAE BROWN, FRANK McGILL COLEMAN' 
JOAN HARRIS NELSON, DONOVAN PHILLIPS and 
LACY CARROLE STREETER,

Petitioners,
vs.

STATE OF NORTH CAROLINA,
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI

T. W. BRUTON,
Attorney General of North Carolina

RALPH MOODY,
Assistant Attorney General 

Justice Building 
Raleigh, North Carolina 

Counsel for the State of 
North Carolina, Respondent.



INDEX
Opinion Below................................................................................  1
Jurisdiction.................    2
Questions Presented....................................................................   2
Constitutional Provisions and Statutes Involved .......................  2
Respondent’s Statement of the Case............................................. 2
Argument ........................      5

I. The State Prosecution did not Deprive Petitioners of
any Rights Protected by the Fourteenth Amendment......  5

II. The State Statute is not Unconstitutional for Uncer­
tainty and Vagueness ......   11

III. The Statute as Administered does not violate the
Constitutional Protection of Freedom of Speech................  13

IV. Conclusion............................................................................. 16

TABLE OF CASES
American Federation of Labor v. Watson, 327 U.S. 582 .............  10
Armstrong v. Armstrong, 230 N.C. 201, 52 S.E. 2d 362 ................  9
Barrows v. Jackson, 346 U.S. 249 ................................................  6
Beauharnais v. Illinois, 343 U.S. 250 ............................................. 12
Bolling v. Sharpe, 347 U.S. 497 .......................................................  7
Boman v. Birmingham Transit Co., 280 F2d 531 ....................... 6
Bowder v. Gayle, 142 F. Supp. 707, aif’d 352 U.S. 903 ................  6
Boynton v. Virginia, ......... U.S............. . 5 L.ed. 2d 206 ..............  9
Brookside-Pratt Min. Co. v. Booth, 211 Ala. 268 ..........................  10
Brown v. Board of Education, 347 U.S. 483 ...............................  7
Burton v. Wilmington Parking Authority, 29 U.S. Law

Week 4317 ..............................   7
City of Greensboro v. Simkins, 246 F.2d 425 .............................  7
Civil Rights Cases, 109 U.S. 3 ......................................................  16
Cole v. Arkansas, 338 U.S. 345 ...................................................  12
Cooper v. Aaron, 358 U.S. 1 ............................................-...........  7

i



Derrington v. Plummer, 240 F.2d 922 .........................................  7
Dawson v. Baltimore, 220 F.2d 386, aff’d 350 U.S. 877 ................  7
Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 .......... 6
Highland Farms Dairy v. Agnew, 300 U.S. 608 ........................... 10
Kovacs v. Cooper, 336 U.S. 77 .................................................... 14
Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804 ...............................  9
Monroe v. Pape, No. 39, Oct. Term, 1960, Feb. 20, 1961 ..............  6
Milk Wagon Drivers Union v. Meadowmoor Dairies, 312

U.S. 287 ....................................... .......... .........-......................... 14
Marsh v. Alabama, 326 U.S. 501.....................................................  15
Nash v. United States, 229 U.S. 373 .................... -..........................  13
Phillips v. United States, 312 U.S. 246 .........................................  10
Roth v. United States, 354 U.S. 476 .............................................  12
Schenck v. United States, 249 U.S. 47 ...........................................  14
Screws v. United States, 325 U.S. 91 ......................................... 6,12
Shelley v. Kraemer, 334 U.S. 1 ..................................................  6,8
Slack v. Atlantic White Tower System, Inc., 181 F. Supp.

124, aff’d 284 F.2d 746 ..............................................................  10
State v. Avent, et als., 253 N.C. 580, 118 S.E. 2d 47 .................... 1, 7
State v. Baker, 231 N.C. 136, 56 S.E. 2d 424 .................................  9
State v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295 ........... -..........  9,10,11
State v. Cooke et als., 246 N.C. 518, 98 S.E. 2d 885 .......................  9
State v. Goodson, 235 N.C. 177, 69 S.E. 2d 242 ........... .............  9
Terminal Taxicab Co. v. Kutz, 241 U.S. 252 .................................  8
Thornhill v. Alabama, 310 U.S. 88 ........................................-.... 14
United States v. Cruikshank, 92 U.S. 542 ......................................  8
United States v. Harris, 106 U.S. 629 ...........................................  8
United States v. Wurzbach, 280 U.S. 396 ..................................... 12
Valle v. Stengel, 176 F. 2d 697 .....................................................  6
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845 ...........  10
Williams v. United States, 341 U.S. 97 ........      12

ii



CONSTITUTIONAL PROVISIONS AND STATUTES
Constitution of the United States:
First Amendment....... .................................................................... 13
Fourteenth Amendment..................................................2,5, 6,7,8,11
Federal Statutes:
28 U.S.C. 1257 (3) .......................................................................  2
42 U.S.C. 1981 .................................................................................. 6
42 U.S.C. 1982 .................................................................................. 6
18 U.S.C. 242 ...................................................................................  12
State Statutes:
Sec. 14 - 134 of General Statutes of North Carolina ................ 2,9,11
Sec. 14 - 126 of General Statutes of North Carolina.....................  9

LA W  REV IEW  ARTICLES
Race Relations Law Reporter ......................................................  6, 7
47 Virginia Law Review 1 ..........................................................  7
46 Virginia Law Review 123 ........................................................  7
15 U. of Miami Law Review 123 .................................................  7
1960 Duke Law Journal 315 ....................................................... 7
109 U. of Pennsylvania Law Review 67 ....................................  13
62 Harvard Law Review 77............................................................ 13
40 Cornell Law Quarterly 195 .................... -................................. 13

iii



Supreme Court of the United States
October Term, 1960

No. 943

JOHN THOMAS AVENT, CALLIS NAPOLIS BROWN, 
SHIRLEY MAE BROWN, FRANK McGILL COLEMAN, 
JOAN HARRIS NELSON, DONOVAN PHILLIPS, and 
LACY CARROLE STREETER,

Petitioners,
vs.

STATE OF NORTH CAROLINA,
Respondent.

BRIEF OF THE RESPONDENT, STATE OF NORTH 
CAROLINA, IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI.

OPINION BELOW

The opinion of the Supreme Court of North Carolina, in 
this case, is reported as STATE v. AVENT, et als, 253 N.C. 
580 (No. 6, Advance Sheets of North Carolina, issued Feb­
ruary 15, 1961); 118 S.E. 2d 47. The opinion of the Supreme 
Court of North Carolina in this case also appears in the 
Petitioners’ Appendix attached to their Petition and Brief 
at p. la. The Petitioners erroneously attribute the opinion 
of the Supreme Court of North Carolina to “Mr. Justice Mal­
lard,” when the truth of the matter is that Judge Mallard is 
Judge of the Superior Court, which is a court of general 
jurisdiction, and he tried the case in the Court below, at the 
trial stage. The opinion of the Supreme Court of North Caro-



2

lina was written by Mr. Justice Parker, as will appear on p. 
6a of the Petitioners’ Appendix. The Judgment of the Su­
perior Court of Durham County, North Carolina, is not 
officially reported but appears in the State Record certified 
to this Court on p. 15.

JURISD ICTION

The Petitioners invoke the jurisdiction of the Supreme 
Court of the United States pursuant to 28 U.S.C. 1257 (3). 
The Respondent, North Carolina, denies that this Court has 
been presented a sufficient basis in this case for the ex­
ercise of its jurisdiction.

QUESTIONS PRESENTED

The Respondent, North Carolina, will oppose the grant­
ing of the Writ herein sought by the Petitioners and for pur­
poses of argument the Respondent will assume that the 
questions presented by the Petitioners on p. 2 of their 
brief are the questions to be considered.

CONSTITUTIONAL PROVISION AND STATUTE 
INVOLVED

The Petitioners invoke Section 1 of the Fourteenth A- 
mendment to the Constitution of the United States.

The Petitioners also attack Section 14-134 of the General 
Statutes of North Carolina, the pertinent part of which is 
as follows:

“G.S. 14-134. Trespass on land after being forbidden. If 
any person after being forbidden to do so, shall go or enter 
upon the lands of another, without a license therefor, he 
shall be guilty of a misdemeanor, and on conviction, shall be 
fined not exceeding fifty dollars or imprisoned not more 
than thirty days.”

RESPONDENT'S STATEMENT OF THE CASE

The Record of this case before the Supreme Court of 
North Carolina (No. 654—14th District—Fall Term, 1960)



3

has been certified to this Court by the Clerk of the Supreme 
Court of North Carolina, and we will refer to this Record 
(State Record) by the designation SR.

The Petitioners were each indicted by the Grand Jury of 
Durham County for a violation of G.S. 14-134 in that they 
committed a criminal trespass on the land and property of
5. H. Kress & Company, Owner, they having entered unlaw­
fully upon said premises and having willfully and unlaw­
fully refused to leave the premises after being ordered to do 
so by the agent and manager of S. H. Kress & Company. 
The indictments (SR-2) were all consolidated for the pur­
pose of trial (SR-15); the cases were tried and presented to 
the jury, and a verdict of guilty as to each Petitioner was 
returned. (SR-15) The Court pronounced judgment in the 
various cases which are shown on SR-15, and from these 
judgments the Petitioners each appealed to the Supreme 
Court of North Carolina.

This case is another facet of the demonstrations which 
have occurred in various states and which have been spon­
sored by the National Student Association, the Congress of 
Racial Equality (CORE), and the National Association for 
the Advancement of Colored People. The movement was 
dominated and led primarily by students of the colored race 
and some students of the white race and the objective was 
to move into various privately-owned stores and take charge 
of the lunch counters which the owners maintained and 
operated for customers of the white race and prevent the 
white customers from being served at these lunch counters.

According to the evidence of W. K. Boger, Manager of the 
Durham Store of S. H. Kress & Company, (SR-20) on May
6 , 1960, all of the Petitioners came into the store located on 
West Main Street in Durham. The luncheonette was open 
for the purpose of serving invited guests and employees and 
signs were posted over and about the luncheonette depart­
ment stating that the department was operated for employ­
ees and guests only; there were iron railings which sep­
arated this department from the other departments in the



4

store, and the luncheonette department had chained en­
trances. (SR-21) The manager had a conversation with every­
one of the Petitioners, (SR-21) and he explained to them 
the status of the lunch counter and asked the Petitioners to 
leave. Before the Petitioners were seated at the lunch count­
er the manager asked them not to take these seats, and when, 
in spite of his directions and wishes, the Petitioners seated 
themselves at the lunch counter, the manager asked them 
to leave. (SR-21) The manager called an officer of the City 
Police Department and the officer asked the Petitioners to 
leave, and, upon their refusing to do so, each of the Peti­
tioners was arrested for trespassing upon the property.

The Petitioner Frank McGill Coleman is a member of the 
white race, a student at Duke University, and was engaged 
in concerted action with the colored Petitioners. The Peti­
tioner Joan Harris Nelson is a freshman at Duke University 
and is apparently a white person. All of the actions of the 
Petitioners show that they had previously discussed what 
they would do and how they would operate in making this 
demonstration and in creating a situation which would 
afford a test case for the colored Petitioners.

The evidence of the State, as well as the evidence of the 
Petitioners, establishes certain facts, as follows:

(1) That prior to the sit-in demonstrations which re­
sulted in the present arrests and indictments of the Peti­
tioners, the Petitioners had counsel and had consulted 
counsel while the demonstration was in its organizational 
process. (SR-38)

(2) The Petitioners had previously been engaged in 
picketing this store and in urging a boycott unless their 
demands for luncheon service were met. (SR-37, 41, 42, 44, 
48, 49, 50.)

(3) It is clear from the evidence of Callis Napolis Brown 
(SR-46) that there was an organization for this purpose, 
that the organization had leaders, and that a meeting was



5

held on the night before May 6 , 1960, and it was decided and 
planned to make a purchase in some other part of the store 
before going down and attempting to secure lunch counter 
service. (SR-46)

(4) Purchases were made by these defendants according 
to this previously agreed upon design or plan. (SR-36, 40, 
43, 45, 48, 49)

(5) It is plain that the Petitioners expected and anticipat­
ed that they would not be served at the lunch counter and 
that they intended to remain until they were arrested. It is 
also clear that they solicited the aid of the two white stu­
dents for the purpose of having an entering wedge into the 
seats of the lunch counter and for the purpose of confusing 
the situation by having the white students purchase the food 
and give it to the colored students.

(6 ) It is further clear that counsel had been consulted 
and cooperated in all these movements even to the point 
of providing bonds for the Petitioners after they were ar­
rested. (See SR. 39, where Lacy Carrole Streeter testified: 
“I left the matter of a bond to my attorneys. I employed my 
attorneys in February. I started consulting with my attor­
neys in February. I kept them retained until May 6 , I960.”)

ARGUM ENT

1

THE STATE PROSECUTION DID NOT DEPRIVE PETI­
TIONERS OF ANY RIGHTS PROTECTED BY THE 
FOURTEENTH AMENDMENT.

Petitioners in their Brief assert several propositions relat­
ing to race discriminations prohibited by the Fourteenth 
Amendment about which there is no contest and which do 
not come within the ambit of the issues to be resolved in 
this case. Some of these propositions, about which there is 
no controversy, are as follows:



6

(1) The Respondent admits that action by the judicial 
branch of a state government can be such a type of state 
action that offends against the prohibitory provisions of 
the Fourteenth Amendment (SHELLEY v. KRAEMER, 334 
U. S. 1; BARROWS v. JACKSON, 346 U. S. 249; Race Rela­
tions Law Reporter, Vol. 1, No. 3, pp. 613, 622). We still 
think there is such a thing as valid state action by the 
judicial branch of a state government.

(2) The Respondent admits that the provisions of the 
Fourteenth Amendment extend to and reach the conduct of 
state police officers (MONROE v. PAPE, No. 39, Oct. Term, 
1960, Feb. 20, 1961; SCREWS v. UNITED STATES, 325 
U. S. 91). We deny that it extends to and reaches valid 
conduct of state police officers exercised under valid state 
authority.

(3) We admit that there can be unlawful state action by 
a police officer acting under “color of law” where a state 
has enacted a Civil Rights statute which prohibits the denial 
of accommodations or privileges to a person because of color 
in places of amusement or in restaurants. (YALLE v. STEN­
GEL, CCA-3, 176 F. 2d 697, 701). We think the rule can 
be different where a state has no such statute.

(4) We admit that where a state grants a franchise to a 
public utility there cannot be discrimination in the use of 
facilities or services furnished the patrons because of color 
nor can the state enforce such discriminations by delegating 
the power to make rules or by criminal sanctions (BOMAN 
v. BIRMINGHAM TRANSIT CO., CCA-5, 280 F. 2d 531; 
BOWDER v. GAYLE, 142 F. Supp. 707, aff’d 352 U. S. 903; 
FLEMING v. SOUTH CAROLINA ELEC. & GAS CO., CCA- 
4, 224 F. 2d 752). We deny that this rule applies to business 
under private ownership.

(5) We admit that all citizens, white and colored, have 
the right to contract, acquire and own property, are entitled 
to security of person and property, and to inherit, purchase, 
lease, hold and convey real and personal property as set 
forth in R.S. 1977, 42 USC 1981, and R.S. 1978, 42 USC



7

1982. We do not admit that any person, white or colored, 
can be constitutionally forced to sell any private property 
or product to another person, or that one person is forced 
to negotiate with another person in or about any property 
or business transaction.

(6 ) We admit that there is an abundance of legal author­
ity to the effect that a state or a subdivision of a state which 
operates restaurants or other facilities, or operates play­
grounds or parks, or facilities of this nature, cannot by the 
device of a lease to private persons or firms discriminate 
against colored persons who desire to use such facilities, and 
that “the proscriptions of the Fourteenth Amendment must 
be complied with by the lessee as certainly as though they 
were binding covenants written into the agreement itself.” 
(BURTON v. WILMINGTON PARKING AUTHORITY, 29 
U. S. Law Week 4317, No. 164, Oct. Term 1960, April 17, 
1961; DERRINGTON v. PLUMMER, CCA-5, 240 F. 2d 922; 
CITY OF GREENSBORO v. SIMKINS, CCA-4, 246 F. 2d 
425; DAWSON v. BALTIMORE, CCA-4, 220 F. 2d 386, aff’d 
350 U. S. 877).

(7) We don’t think the cases on discrimination in public 
schools have anything to do with this case, but we admit 
there can be no state action which supports racial discrimi­
nation in this field and as set forth in the cases of BROWN 
v. BOARD OF EDUCATION, 347 U. S. 483, BOLLING v. 
SHARPE, 347 U. S. 497, and COOPER v. AARON, 358 U. S. 
1.

Our contentions and the concepts that we believe to be 
sound have been fully stated by Mr. Justice Parker in 
STATE v. AVENT et als., 253 N. C. 580 (N. C. Advance 
Sheets No. 6 , issued Feb. 15, 1961), 118 S. E. 2d 47, Peti­
tioners’ Appendix p. 2a. The matter has been considered 
by the law review writers (47 Virginia Law Review—No. 1, 
Jan. 1961, p. 1; 46 Virginia Law Review - 1960 - p. 123; 15 
U. of Miami Law Review - No. 2 - 123; Race Relations Law 
Reporter, Vol. 5, No. 3 - Fall 1960 - p. 935; 1960 Duke Law 
Journal 315).



8

We assert that private citizens or persons have the right 
to practice private discrimination for or against each other. 
This runs all through the fabric of society and life. Clubs, 
lodges and secret societies will accept some as members and 
reject others. The country club people do not associate with 
the people that live in slum areas and across the railroad 
track. The people of some races will have no dealings with 
people of other races. Discriminations are practiced inside 
the race group. The colored insurance men, doctors and 
bankers do not have social affairs that are open to the cot­
ton and cornfield Negroes. We further assert that any color­
ed citizen can refuse to transact business with a white per­
son or to have him on his business premises and the rule 
applies in reverse. Up to the present time, in private busi­
ness, no man has been compelled to sell his product, goods 
or services to another unless he desired to so do. The rea­
sons or motives that prompt his choice of action are irrele­
vant. The same private rights in the use and enjoyment of 
property are available to all. The protection of these private 
rights is not an “indiscriminate imposition of inequalities”. 
As said by Mr. Justice Holmes (TERMINAL TAXICAB CO. 
v. KUTZ, 241 U. S. 252, 256):

“It is true that all business, and for the matter of that, 
every life in all its details, has a public aspect, some 
bearing on the welfare of the community in which it is 
passed. But however it may have been in earlier days 
as to the common callings, it is assumed in our time 
that an invitation to the public to buy does not neces­
sarily entail an obligation to sell. It is assumed that an 
ordinary shopkeeper may refuse his wares arbitrarily 
to a customer whom he dislikes * * *.”
This court carefully stated (SHELLEY v. KRAEMER, 
334 U. S. 1):

“That Amendment erects no shield against merely priv­
ate conduct, however discriminatory or wrongful.” (cit­
ing in the note: UNITED STATES v. HARRIS, 106 
U. S. 629; UNITED STATES v. CRUIKSHANK, 92 U. S. 
542.)



9

In BOYNTON v. VIRGINIA, 5 L. ed. 2d 206, _____ .
U. S ._____, this Court said:

“We are not holding that every time a bus stops at a 
wholly independent roadside restaurant the Interstate 
Commerce Act requires that restaurant service be sup­
plied in harmony with the provisions of that Act.”

But if there existed another vital, and primary constitu­
tional principle that required that restaurant service be 
supplied by the roadside restaurant to a colored man, then 
there would seem to be no reason why this Court should 
pass it by and not settle the question.

The State Statute here under consideration is an old 
statute and has been passed upon by the Supreme Court 
of North Carolina many times. It appears in the State code 
as G. S. 14 - 134 and we refer the Court to certain cases, as 
follows: STATE v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 
295; STATE v. COOKE et als., 246 N. C. 518, 98 S. E. 2d 885; 
STATE v. GOODSON, 235 N. C. 177, 69 S. E. 2d 242; ARM­
STRONG v. ARMSTRONG, 230 N. C. 201, 52 S. E. 2d 362; 
LEE v. STEWART, 218 N. C. 287, 10 S. E. 2d 804; STATE 
v. BAKER, 231 N. C. 136, 56 S. E. 2d 424. See also cases 
cited in annotation to Sec. 14 - 134 in General Statutes of 
North Carolina, and the 1959 Supplement thereto. A related 
statute is G. S. 14 - 126 which is as follows:

“No one shall make entry into any lands and tenements, 
or term for years, but in case where entry is given by 
law; and in such case, not with strong hand nor with 
multitude of people but only in a peaceable and easy 
manner; and if any man do the contrary, he shall be 
guilty of a misdemeanor.”

This statute was borrowed from English law and in sub­
stance is 5 Richard II, c. 8 , and in fact it would appear that 
this statute and the one under consideration are formulations 
of the common law.



10

The statute now attacked by Petitioners is a neutral sta­
tute and has no connection with the color of persons. We 
challenge the Petitioners to trace the reported decisions and 
show that in its judicial administration it has been applied 
to colored persons and not to white persons. It is available 
to the colored man if a white man will not leave his premises 
when requested to do so.

The implied invitation to the general public to come into 
a shop or store can lawfully be revoked. On this aspect of 
the case the Supreme Court of North Carolina (253 N. C. 
580, 588) said:

“In an Annotation in 9 A.L.R., p. 379, it is said: ‘It 
seems to be well settled that, although the general pub­
lic have an implied license to enter a retail store, the 
proprietor is at liberty to revoke this license at any time 
as to any individual, and to eject such individual from 
the store if he refuses to leave when requested to do 
so.’ The Annotation cites cases from eight states sup­
porting the statement. See to the same effect, BROOK- 
SIDE-PRATT MIN. CO. v. BOOTH, 211 Ala. 268, 100 
So. 240, 33 A.L.R. 417, and Annotations in 33 A.L.R. 421”.

Leaving aside the question of void-for-vagueness, the in­
terpretation of the highest appellate Court of a state should 
be accepted by the Federal Courts (AMERICAN FEDERA­
TION OF LABOR v. WATSON, 327 U. S. 582; PHILLIPS v. 
UNITED STATES, 312 U. S. 246; HIGHLAND FARMS 
DAIRY v. AGNEW, 300 U. S. 608).

The Petitioners have not cited any case dealing with priv­
ate discrimination which supports their position, and indeed 
they cannot do so. Up to the present time the Courts that 
have considered the matter support our position (STATE 
v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 295; WILLIAMS 
v. HOWARD JOHNSON’S RESTAURANT, 268 F. 2d 845; 
SLACK v. ATLANTIC WHITE TOWER SYSTEM, INC., 
181 F. Supp. 124, aff’d 284 F. 2d 746; see also cases cited 
in opinion of Supreme Court of North Carolina in this case, 
and in law review articles cited supra).



11

As we see the matter, up to the present time, wherever 
the prohibitions of the Fourteenth Amendment have been 
invoked there has been a clear, established right to be pro­
tected from state action or from any discrimination aided 
or assisted by state action. Up to the present time in this 
case the Petitioners are starting from a position where they 
have no clear, established right to be protected by constitu­
tional guarantees. They are asking the Court to invent, create 
or conjure up the claimed right and then say it is entitled 
to the protection of the Fourteenth Amendment. If it shall 
be said that the State court cannot exert its power to protect 
the property rights of either race but will leave the parties 
to their own devices, or to the exercise of personal force, 
then the result will be something that neither the white or 
colored race really desires.

II

THE STATE STATUTE IS NOT UNCONSTITUTIONAL 
FOR UNCERTAINTY AND VAGUENESS.

The Petitioners’ next attack on the statute comes under 
the so-called void-for-vagueness doctrine. Here we enter into 
a field of constitutional law which it seems to us is measured 
entirely by subjective tests.

There is one thing sure however—the Petitioners were 
engaged in a previously organized campaign and there is 
strong reason to believe from the evidence that they had 
the advice of counsel. The Supreme Court of North Carolina 
has construed G. S. 14 - 134 many times to include the situ­
ation where a person enters upon lands or premises without 
protest and is later told by the owner or proprietor to leave 
the premises. The case of STATE v. CLYBURN, 247 N. C. 
455, 101 S. E. 2d 295, was decided on January 10, 1958, and 
Petitioners and their counsel had ample warning of this 
construction of the statute. We have heretofore cited above 
many cases in which the Supreme Court of North Carolina 
has construed the statute. This Court has said in substance 
that impossible standards of definition are not required and



12

that it is sufficient if the language “conveys sufficiently 
definite warning as to the proscribed conduct when measur­
ed by common understanding and practices.” On this point, 
see ROTH v. UNITED STATES, 354 U. S. 476, and see an­
notation in 1 L. ed 2nd, p. 1511.

This State statute is certainly no more vague or uncertain 
than 18 USCA 242, which reads as follows:

“Whoever, under color of any law, statute, ordinance, 
regulation, or custom, willfully subjects, or causes to 
be subjected, any inhabitant of any State, Territory, 
or District to the deprivation of any rights, privileges, 
or immunities secured or protected by the Constitution 
and laws of the United States, or to different punish­
ments, pains, or penalties, on account of such inhabitant 
being an alien, or by reason of his color, or race, than 
are prescribed for the punishment of citizens, shall be 
fined not more than $1,000 .00 , or imprisoned not more 
than one year, or both.”

This Court reviewed the statute and its history and up­
held the statute against an attack based on unconstitutional 
vagueness in SCREWS v. UNITED STATES, 325 U. S. 91.

For other causes in which statutes have been upheld 
against such an attack see: BEAUHARNAIS v. ILLINOIS, 
343 U. S. 250, COLE v. ARKANSAS, 338 U. S. 345, WIL­
LIAMS v. UNITED STATES, 341 U. S. 97, UNITED 
STATES v. WURZBACH, 280 U. S. 396.

As a practical matter, an ordinary layman has trouble with 
any statute no matter how precise its standards of conduct 
and no matter how clear it may be in the informational pro­
cess. Statutes really are written for lawyers to read and to 
form opinions and advise clients thereon, and the statute 
now under attack when considered with the constructions 
of the highest appellate Court of the State clearly informs 
Counsel for Petitioners what the consequences could be.

There must be some latitude in statutory language be-



13

cause statutes are drafted for the most part in an attempt 
to take care of unanticipaed situations as well as those that 
may be in contemplation when the drafting process is first 
initiated. In NASH v. UNITED STATES, 229 U. S. 373, Mr. 
Justice Holmes summed up the situation as follows:

“But, apart from the common law as to the restraint of 
trade thus taken up by the statute, the law is full of 
instances where a man’s fate depends on his estimating 
rightly, that is, as the jury subsequently estimates it, 
some matter of degree. If his judgment is wrong, not 
only may he incur a fine or a short imprisonment, as 
here; he may incur the penalty of death.’

This question has also been written about extensively by 
the law review writers and in closing this portion of the 
argument we cite a few of these articles but this is not to 
be construed by the Court as meaning that we approve all 
the criticisms and conclusions of the authors (109 University 
of Pennsylvania Law Review - No. 1, November 1960 - p. 67, 
62 Harvard Law Review 77, 40 Cornell Law Quarterly 195).

Ill

THE STATUTE AS ADMINISTERED DOES NOT VIO­
LATE THE CONSTITUTIONAL PROTECTION OF 
FREEDOM OF SPEECH.

We assume here that the Petitioners are dealing with the 
principles of the First Amendment insofar as they may be 
incorporated in the Fourteenth Amendment. The evidence 
shows that Petitioners exercised their right of free speech 
to the fullest extent. Petitioners and their adherents had 
for days been exercising their right to protest and the right 
of freedom of speech by writings and slogans on placards 
which they carried up and down the streets in front of the 
stores. This was certainly true in the AVENT case and in 
both cases there is no evidence to show that they had been 
restrained in any manner in the exercise of this right. The 
use of the streets and sidewalks of the town and city con-



14

cerned had been utilized by Petitioners in the AVENT case 
and there is no reason to believe that any restraints would 
have been placed upon Petitioners in the exercise of free 
speech in any proper place. Of course, free speech is not a 
mighty shield that insulates a person from liability in all 
types of criminal conduct. Such a logic would extend free 
speech as a protection from the penalty of murder and would 
act as a complete and conclusive defense for the commission 
of all criminal acts. This is explained by a paragraph in 
KOYACS v. COOPER, 336 U. S. 77, where this Court said:

“Of course, even the fundamental rights of the Bill of 
Rights are not absolute. The SAIA case recognized that 
in this field by stating ‘The hours and place of public 
discussion can be controlled.’ It was said decades ago 
in an opinion of this Court delivered by Mr. Justice 
Holmes, SCHENCK v. UNITED STATES, 249 U. S. 47, 
52, 63 L. Ed 470, 473, 39 S Ct 247, that: ‘The most 
stringent protection of free speech would not protect 
a man in falsely shouting fire in a theatre and causing 
a panic. It does not even protect a man from an in­
junction against uttering words that may have all the 
effect of force.’

“Hecklers may be expelled from assemblies and relig­
ious worship may not be disturbed by those anxious 
to preach a doctrine of atheism. The right to speak one’s 
mind would often be an empty privilege in a place and 
at a time beyond the protecting hand of the guardians 
of public order.”

In the case of MILK WAGON DRIVERS UNION v. 
MEADOWMOOR DAIRIES, 312 U. S. 287, 61 S. Ct. 552, 85 
L. ed 836, the Court sustained an injunction against picket­
ing where there was a history of past violence against a 
plea of freedom of speech and distinguished the case from 
that of THORNHILL v. ALABAMA, cited by the Petition­
ers, and said:

“This is precisely the kind of situation which the Thorn­
hill opinion excluded from its scope. ‘We are not now



15

concerned with picketing en masse or otherwise con­
ducted which might occasion such imminent and ag­
gravated danger . . .  as to justify a statute narrowly 
drawn to cover the precise situation giving rise to the 
danger.’ 310 U. S. 105, 84 L. Ed. 1104, 60 S. Ct. 736. We 
would not strike down a statute which authorized the 
courts of Illinois to prohibit picketing when they should 
find that violence had given to the picketing a coersive 
effect whereby it would operate destructively as force 
and intimidation. Such a situation is presented by this 
record. It distorts the meaning of things to generalize 
the terms of an injunction derived from and directed 
towards violent misconduct as though it were an ab­
stract prohibition of all picketing wholly unrelated to 
the violence involved.”

We shall not burden the Court with further citations from 
case law but it is sufficient to say that the injuctions 
sustained by this Court in labor disputes "where violence 
and destruction of property were involved are certainly not 
constitutionally invalid because those who were engaged in 
picketing carried banners and mottoes and other writings 
in the exercise of communications and freedom of speech.

The case of MARSH v. ALABAMA, supra, is no excep­
tion to this rule. The defendants in the MARSH case were 
distributing religious literature and engaged in talking to 
persons on the streets of a company-owned town. They were 
not in stores interfering with the businesses of private pro­
prietors. The Supreme Court of the United States simply 
said that where a company owned the streets and sidewalks 
the people of the town were compelled to use them in com­
munity affairs, that these streets and sidewalks were con­
stitutionally dedicated to the public in the same manner as 
the streets of a municipal corporation.



16

IV

CONCLUSION

This Court in these cases is being asked to take a step 
which has never before been taken with reference to the use 
and enjoyment of property rights. To grant the request of 
the Petitioners opens the door to the socialization of all 
property and would mean that while a proprietor may 
have the privilege of holding the bare legal title yet the 
property would be subjected by the State to so many social 
demands that it would be almost analogous to property 
held in the corporative state organized and administered 
for awhile by Mussolini. Petitioners realize that their logic, 
as derived from their premises, leads to great extremes and 
they try to hedge against these extremes. For example, must 
the Petitioners be given entrance to the office of the man­
ager and must they be allowed to go to the stockroom? 
Suppose the clerks tell Petitioners that they do not have 
certain articles and the Petitioners think they can find some 
of the articles in the stockroom, can they go to the stock- 
room over the p r o t e s t  of the management? Suppose 
private properietors are compelled to sell to Petitioners, at 
what price must they sell? If a private properietor sold 
articles or food to his friends at no cost or at a cheaper 
rate than usual, would this violate Petitioners’ civil rights? 
Under their own theory, why should not Petitioners be 
allowed to enter into any private home they desire so long 
as they say that they are protesting and exercising free 
speech? The Petitioners’ request should not be granted un­
less the Court thinks we should have a completely socialized 
state. There should be left to an individual some property 
rights that he can call his own or else why should we have 
the institution of private property. We ask the Court not 
to take such a step and in this connection we again remind 
the Court of the langauage this Court used in civil rights 
cases (109 U.S. 3) when it said:

“When a man has emerged from slavery, and by the aid
of beneficient legislation has shaken off the inseparable



17

concomitants of that state, there must be some stage 
in the progress of his elevation when he takes the rank 
of a mere citizen, and ceases to be the special favorite of 
the laws, and when his rights, as a citizen or a man, 
are to be protected in the ordinary modes by which other 
men’s rights are protected.”

Respectfully submitted,

T. W. BRUTON
Attorney General of North Carolina

RALPH MOODY 
Assistant Attorney General

Justice Building 
Raleigh, North Carolina

Counsel for the State of North Carolina 
Respondent



In the

nprxmx (Emirt of llniipii Btntxz
October Term, 1961

No.

J ames Gober, J ames Albert Davis, E oy H utchinson, 
E obert J . K in g , E obert P arker, W il l ia m  W est, E gbert 
D. Sanders, E oosevelt W estmoreland, J essie W alker, 
W illie J .  W illis,

Petitioners,

City oe B irmingham

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack Greenberg 
Constance B aker Motley 

10 Columbus Circle 
New York City, New York 

Arthur D. Shores 
P eter A. H all 
Orzell B illingsley, J r.
Oscar W. Adams, J r.
J . R ichmond P earson

Attorneys for Petitioners
L eroy D. Clark 
Michael Meltsner 
J ames M. Nabrit, III

of Counsel



TABLE OF CONTENTS

PAGE

Citations to Opinion Below ........................... ..............- 1

Jurisdiction ....................................... ............................  2

Questions Presented ...... — ........-..... ...... .......... -........  2

Constitutional and Statutory Provisions Involved .... 3

Statement .........................-.............................—-......-.....  1
Gober and Davis........................................................  5
Hutchinson and King ...............................................  8
Parker and West  ............................ —-................ 9
Sanders and Westmoreland ...................................... 10
Walker and Willis .......... ...............-........................  12
Facts in Common ............ .............. - ..................... 12

How the Federal Questions Were Raised and Decided 
Below .........................................................................   11

Reasons for Granting the Writ  .......... -............... —- 18
I. Petitioners were denied due process of law and 

equal protection of the laws by conviction of 
trespass for refusing to leave white dining 
areas where their exclusion was required by 
City ordinance ...................................................  18

II. Petitioners were denied due process and equal 
protection by convictions for trespass for re­
fusal to leave whites-only dining areas of de­
partment stores in which all persons are other­
wise served without discrimination .... ........... - 23



11

PAGE

III. The convictions deny due process of law in that
they rest on an ordinance which fails to specify 
that petitioners should have obeyed commands 
to depart given by persons who did not estab­
lish authority to issue such orders at the time 
given ................................................................... 27

IV. The decision below conflicts with decisions of 
this Court securing the right of freedom of 
expression under the Fourteenth Amendment
to the Constitution of the United S tates..........  30

Conclusion ......................................................................  34

A p p e n d ix  :

Judgment Entry in Gober Case ............................  la
Opinion in the Alabama Court of Appeals (in 

Gober Case) .......................................................... 4a
Order of Affirmance in Gober Case ....................... 13a
Order Denying Application for Rehearing in Gober 

Case .................................................................     14a
Order Denying Petition for Writ of Certiorari to 

the Court of Appeals in Gober Case ...... ...........  15a.
Order Denying Rehearing in Gober Case ...........  16a
Judgment Entry in Roosevelt Westmoreland Case 17a
Order of Affirmance in Roosevelt Westmoreland 

Case ....................................................   20a
Order Denying Rehearing in Roosevelt Westmore­

land Case ..............................................................  21a,



Ill

PAGE

Order Denying Petition for Writ of Certiorari in 
Roosevelt Westmoreland Case ..........................  22a

Order Denying Rehearing in Roosevelt Westmore­
land Case .................................................. -.......... 23a

T able op Cases

Abie State Bank v. Bryan, 282 IT.S. 765 ..................... 8
Abrams v. United States, 250 U.S. 616........................  30
Adams v. Saenger, 303 U.S. 59 ................. ................- 8

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....... 22
Boman v. Birmingham Transit Company, 280 F. 2d

531 (5th Cir. 1960) ............... ...................................  22
Breard v. Alexandria, 341 U.S. 622 ............................  31
Browder v. Gayle, 352 U.S. 903 (1956) ........................  25
Brown v. Board of Education, 347 U.S. 483 .................  22
Buchanan v. Warley, 245 U.S. 60 ............................22, 24
Burton v. Wilmington Parking Authority, 365 U.S.

5 .......................................... 22, 23, 26

Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So.
815 ............................................-----...............- ..... ....... 29

Connally v. General Construction Co., 269 U.S. 385 .... 28
Cooper v. Aaron, 358 U.S. 1 ....... -............. -.......... -........ 33

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949) aff d 
336 U.S. 933 ................................................... -.......  21

Frank v. Maryland, 359 U.S. 360 ...................................  27
Freeman v. Retail Clerks Union, Washington Supeiior 

Court, 45 Lab. Rel. Ref. Man. 2334 (1959) .....-...........  33



IV

PAGE

Garner v. Louisiana, 7 L. ed. 2d 207 .......... 5, 24, 29, 30, 31
Gayle v. Browder, 352 U.S. 903, aff’g 142 F. Supp. 707

(M.D. Ala, 1956) .........................................................  22
Guinn v. United States, 238 U.S. 347 ...................... . 21
Holmes v. City of Atlanta, 350 U.S. 879 ......................... 22
Hudson County Water Co. v. McCarter, 209 U.S. 349 .... 27
Junction R.R. Co. v. Ashland Bank, 12 Wall. (U. S.) 226 8
Lambert v. California, 355 U.S. 225 ............................  28
Lane v. Wilson, 307 U.S. 268 ................................ ....... 21
Lanzetta v. New Jersey, 306 U.S. 451............................  28
Louisiana State University and A. & M. College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 
358 U.S. 819  ............................................................  21

Mapp v. Ohio, 367 U.S. 643 ....................................... . 26
Marsh v. Alabama, 326 U.S. 501 ................................24, 32
Martin v. Struthers, 319 U.S. 141 ................................  31
Mayor and City Council of Baltimore v. Dawson, 350

U.S. 877 ........................................................................  22
McCord v. State, 79 Ala. 269 ........................................ 29
Monk v. Birmingham, 87 F. Supp. 538 (N.D. Ala. 1949)

aff’d 185 F. 2d 859, cert, denied 341 U.S. 940 ....... . 7
Morissette v. United States, 342 U.S. 246 .....................  29
N.A.A.C.P. v. Alabama, 357 U.S. 449 ............................  30
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) .................................................... . 32
N.L.R.B. v. Fansteel Metal Corp., 306 U.S. 240 ..........  32
Owings v. Hull, 9 Peters (U. S.) 607 ............................  8
People v. Barisi, 193 Misc. 934, 86 N.Y.S. 2d 277 (1948) 32
Poe v. Ullman, 367 U.S. 497 ........................................... 27



V

PAGE

Railway Mail Ass’n v. Cor si, 326 U.S. 8 8 ..................... 26
Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793 .... 32

San Diego Bldg. Trades Council v. Garmon, 349 U.S.
236 ..................................... ................................... -....  32

Schenck v. United States, 249 U.S. 47 .......... ............  33
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert.

denied 332 U.S. 851 ................... ..............................  33
Shell Oil v. Edwards, 263 Ala. 4, 88 So. 2d 689 (1955) .. 7
Shelley v. Kraemer, 334 U.S. 1 ................................ — 24
Smiley v. City of Birmingham, 255 Ala. 604, 52 So. 2d

710 (1961) ..................................................................  7
Smith v. California, 361 U.S. 147.................................... 34
State Athletic Commission v. Dorsey, 359 U.S. 533 ....... 22
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357 (1959) ......... ............... 33
Stromberg v. California, 283 U.S. 359 ....— ............... 30

Terminiello v. Chicago, 337 U.S. 1 ................—.............  33
Thompson v. City of Louisville, 326 U.S. 199 ........ ..... 29
Thornhill v. Alabama, 310 U.S. 88 ............................30, 32

United States v. Willow River Power Co., 324 U.S.
499  .............................................................................  24

United Steelworkers v. N.L.R.B., 243 F.2d 593 (D.C.
Cir. 1956), reversed on other grounds, 357 U.S. 357 - 32

West Virginia State Board of Education v. Barnette,
319 U.S. 624 ................................................................  30

Wieman v. Updegraff, 344 U.S. 183 ................ ...........  34
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D.C.

Cir. 1961) ................... ...... .............. ......-........... -.......  22
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 

845 (4th Cir. 1959) 22



VI

Statutes
page

United States Code, Title 28, §1257(3) .....................  2
Alabama Constitution, §102 .........................................  25
Alabama Constitution, §111, amending §256 .............. 25

Code of Alabama, Title 1, §2 .....................................  25
Code of Alabama, Title 7, §429(1) (1940)  ............  7
Code of Alabama, Title 14, §§360-361 .......................... 25
Code of Alabama, Title 14, §426 .................................  29
Code of Alabama, Title 44, §10 ................................... 25
Code of Alabama, Title 45, §4 ..................................... 25
Code of Alabama, Title 45, §§121-123, 52, 183 .............  25
Code of Alabama, Title 45, §248 ................................  25
Code of Alabama, Title 46, §189(19) ..........................  25
Code of Alabama, Title 48, §§186, 196-197, 464 ............ 25
Code of Alabama, Title 48, §301 (31a, b, e) ..............  25
Code of Alabama, Title 51, §244 .................................  25
Code of Alabama, Title 52, §24 ...................................  25
Code of Alabama, Title 52, §§452-455 ..........................  25
Code of Alabama, Title 52, §455(l)-(4) ......................  25
General City Code of Birmingham, §369 (1944) .....3,7,15
General City Code of Birmingham, §1436 (1944) ....3,5,14

Other A uthorities

American Law Institute, Model Penal Code, Tentative 
Draft No. 2, §206.53, Comment ................................  29

Sayre, Public Welfare Offenses, 33 Columbia L. Rev.
55 (1933) ....................................................................  29



1st the

Court of tljr UnttTfc #tafro
October Term, 1961 

No.............

J ames Gober, J ames Albert D avis, R oy H utchinson, 
R obert J . K ing, R obert P arker, W illiam W est, R obert 
D. Sanders, R oosevelt W estmoreland, J essie W alker, 
W illie J .  W illis,

Petitioners,

City oe B irmingham

PETITIO N FOR W RIT OF CERTIORARI TO THE  
COURT OF APPEALS OF ALABAMA

Petitioners pray that writ of certiorari issue to review 
the judgments of the Alabama Court of Appeals entered 
in the above entitled cases as set forth in “Jurisdiction, 
infra.

Citation to Opinion Below*
The opinion of the Alabama Court of Appeals is not re­

ported, and is set forth in the Appendix hereto infra p. 4a. 
The denial of certiorari by the Supreme Court of Alabama 
is unreported and appears in the Appendix, infra, p. 22a.

* The Appendix contains the following opinions and orders in 
Gober: Judgment; Opinion of Alabama Court of Appeals; Judg- 
ment, Alabama Court of Appeals; Denial of Rehearing, Alabama 
Court of Appeals; Denial of Certiorari, Supreme Court or Ala­
bama ; Denial of Rehearing on Petition for Writ of Certiorari, 
Supreme Court of Alabama. All other cases were affirmed on au­
thority of Gober. Pertinent orders and opinions are set forth for 
the Westmoreland case; all the orders and opinions in the other 
cases are identical and, therefore, are omitted.



2

Jurisd iction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Gober 57, Davis 60, Hutchinson 
42, King 42, Parker 45, West 41, Sanders 36, Westmore­
land 33, Walker 36, Willis 33); Appendix p. 13a infra. 
Petitions to the Supreme Court of Alabama for Writs of 
Certiorari were denied on September 14, 1961 (Gober 72, 
Davis 67, Hutchinson 47, King 48, Parker 46, West 50, 
Sanders 42, Westmoreland 38, Walker 43, Willis 39), infra, 
p. 15a.

Applications to the Supreme Court of Alabama for re­
hearing were overruled on November 2, 1961 (Gober 74, 
Davis 69, Hutchinson 49, King 50, Parker 48, West 52, 
Sanders 44, Westmoreland 40, Walker 45, Willis 41), infra, 
p. 16a.

The jurisdiction of this Court is invoked pursuant to 
United States Code 28, Section 1257(3), petitioners having 
asserted below, and asserting here, the deprivation of their 
rights, privileges, and immunities secured by the Consti­
tution of the United States.

Questions Presented

Whether Negro petitioners were denied due process of 
law and equal protection of the laws secured by the Four­
teenth Amendment:

1. When arrested and convicted of trespass for refusing 
to leave department stores’ dining areas where their ex­
clusion was required by an Ordinance of the City of 
Birmingham which orders segregation in eating facilities.

2. By conviction of trespass for refusal to leave whites- 
only dining areas of department stores in which all per­
sons are otherwise served without discrimination.



3. When arrested and convicted of trespass for seeking 
nonsegregated food service at whites-only dining areas 
upon records barren of evidence that any person making 
the requests to leave identified his authority to make the 
request.

4. Whether petitioner sit-in demonstrators were denied 
freedom of expression secured by the Fourteenth Amend­
ment when arrested and convicted for trespass upon re­
fusal to move from whites-only dining areas where the 
managers did not call the police or sign any affidavit or 
warrant demanding prosecution and were apparently will­
ing to endure the controversy without recourse to criminal 
process.

C onstitutional and Statutory Provisions Involved

1 . This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves the following sections of the 
City Code of Birmingham, Alabama:

“Section 1436 (1944), After Warning. Any person who 
enters into the dwelling house, or goes or remains on 
the premises of another, after being warned not to 
do so, shall on conviction, be punished as provided 
in Section 4, provided, that this Section shall not 
apply to police officers in the discharge of official 
duties.
Section 369 (1944), Separation of races. It shall be 
unlawful to conduct a restaurant or other place for 
the serving of food in the city, at which white and 
colored people are served in the same room, unless 
such white and colored persons are effectually sep­
arated by a solid partition extending from the floor



upward to a distance of seven feet or higher, and un­
less a separate entrance from the street is provided 
for each compartment” (1930, Section 5288).

Statement

These are ten sit-in protest cases tried in five separate 
trials.1 The protests—involving common facts relevant to 
the Constitutional issues here presented—occurred the same 
day in five department stores in each of which two peti­
tioners were arrested and charged with commission of the 
same acts; all were sentenced identically in a common 
sentencing proceeding (Gober 52-56, Davis 51-55; Hutchin­
son 34-38, King 34-38; Parker 36-40, West 33-37; Sanders 
28-32, Westmoreland 25-29; Walker 28-32, Willis 25-29)2 
after trials held seriatim with the same judge, prosecution, 
and defense counsel. Identical constitutional and state law 
questions were raised in each case. See infra, pp. 14-18. 
The Alabama Court of Appeals wrote an affirming opinion 
for the first case, Gober v. State of Alabama, see infra, 
p. 4a, affirming all others in brief per curiam orders merely 
citing Gober, see infra, p. 20a. The Supreme Court of 
Alabama denied certiorari in all cases in identical orders.8

1 While there are ten separate records there is a single tran­
script of testimony for each pair of defendants arrested in a single 
establishment (or five transcripts in all) of which a carbon copy 
appears in the record of each one of the pair.

2 The sentencing portion of each of the ten records is identical. 
Record citations are indicated by the name of the defendant and 
the page.

3 A sixth pair of cases, Billups v. State of Alabama and Shuttles- 
worth v. State of Alabama, arose in connection with the same situa­
tion, but presents somewhat different issues in that Billups and 
Shuttlesworth were convicted of having persuaded the petitioners 
bringing this petition to engage in the sit-in protests which are 
the subject of this petition. These two men were sentenced in the 
same proceeding as the instant petitioners. A separate petition for 
certiorari is being filed concerning Billups and Shuttlesworth.



5

See infra, pp. 15a, 22a. Hence, for convenient presentation, 
although each pair of cases differs somewhat, the issues are 
brought here by petition for writ of certiorari in a single 
document. Cf. Garner v. Louisiana, 7 L. ed. 2d 207, 211.

Petitioners were convicted in the Recorder’s Court of 
the City of Birmingham for having trespassed after warn­
ing in violation of City Code of Birmingham, Alabama, 
§1436 (1944):

“Sec. 1436, After Warning. Any person who enters 
into the dwelling house, or goes or remains on the 
premises of another, after being warned not to do so, 
shall on conviction, be punished as provided in Sec­
tion 4, provided, that this Section shall not apply to 
police officers in the discharge of official duties.”

Upon conviction they received trials de novo in the 
Circuit Court of Jefferson County, were again adjudged 
guilty, and sentenced to thirty days hard labor and $100.00 
fine. (Gober 8 , Davis 8-9; King 8-9, Hutchinson 8-9; 
Parker 8-9, West 5-6; Sanders 8-9, Westmoreland 5-6; 
Walker 8-9, Willis 5-6.)

Each complaint charged that petitioner “ . . . did go or 
remain on the premises of another, said premises being 
the area used for eating, drinking and dining purposes 
and located within the building commonly and customarily 
known as [the store in question] after being warned not 
to do so, contrary to and in violation of Section 1436 of 
the General City Code of Birmingham of 1944.” (Gober 2, 
Davis 2; King 2, Hutchinson 2; Parker 2, West 2; Sanders 
2, Westmoreland 2; Walker 2, Willis 2.)

Gober and Davis

The Gober and Davis cases arose from a sit-in protest 
at Pizitz’s Department Store, Birmingham. Davis, on



6

March 31, purchased socks, toothpaste and handkerchiefs 
at Pizitz’s, and with Gober attempted to order at the lunch 
counter, but the waitress refused to approach (Gober 42, 
Davis 43). Without identifying himself a man informed 
them that Negroes could be served elsewhere in the store, 
but did not ask them to leave the store or where they were 
sitting (Gober 19-22, Davis 20-23). No sign indicated a 
segregation policy or that the counter was solely for whites 
(Gober 50, Davis 50).

That morning, Police Officer Martin testified, a superior 
had reported (Gober 17, Davis 18) a disturbance at Pizitz’s 
to him; he went to the dining area, found it closed to cus­
tomers, and saw two Negro males seated conversing to­
gether. No one spoke to them in Martin’s hearing, neither 
did he speak to any person in the store (Gober 15-17, 
Davis 16-18). He arrested them (Gober 17-18, Davis 17-19).

The store’s controller, Gottlinger (Gober 19, Davis 20), 
saw two Negro boys seated in the lunch area, said nothing 
to them, but heard one say “we should call the police” 
(Gober 19, Davis 20).

This witness observed an assistant to the store president 
speak to the boys, asking that they leave the tea room, 
informing them they could be served in the basement Negro 
restaurant because “it would be against the law to serve 
them there” in the tea room area (Gober 22, Davis 23).

Here, in the first case tried, petitioners tried to inter­
rogate concerning the segregation ordinance of the City 
of Birmingham (Gober 22-24; Davis 23-25):

“Mr. Hall: . . .  It is our theory of this case it is 
one based simply on the City’s segregation ordinance 
and Mr. Gottlinger, Mr. Pizitz, the police officers and 
everybody involved acted simply because of the segre­
gation law and not because it was Pizitz policy. . . .

# # # * #



7

“Mr. Hall: As I understand it it is the theory of 
the City’s case, it is trespass after warning. Our con­
tention is that that is not a fact at all, it is simply an 
attempt to enforce the segregation ordinance and we 
are attempting to bring it out.

“The Court: Does the complaint cite some statute!
“Mr. Hall: Trespass after warning. If we went only 

on the complaint it would seem that some private 
property has been abused by these defendants and 
that the owner of this property has instituted this 
prosecution. From the witness’ answers it doesn’t seem 
to be the case. It seems it is predicated on the segre­
gation ordinance of the City of Birmingham rather 
than on the trespass. So what we are trying to bring 
out is whether or not the acts of Pizitz were based on 
the segregation ordinance or something that has to do 
with trespass on the property.”

(And see Parker 25-28, West 22-25.)

The Birmingham Segregation Ordinance to which coun­
sel referred is General City Code of Birmingham §369 
(1944),4 requiring that Negroes and whites be separated

4 “Sec. 369. Separation of races.
It shall be unlawful to conduct a restaurant or other place 

for the serving of food in the city, at which white and colored 
people are served in the same room, unless such white and 
colored persons are effectually separated by a solid partition 
extending from the floor upward to a distance of seven feet 
or higher, and unless a separate entrance from the street is 
provided for each compartment” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
7 Code of Alabama, 1940, §429(1). See Shell Oil v. Edwards, 263 
Ala. 4, 9, 88 So. 2d 689 (1955); Smiley v. City of Birmingham, 
255 Ala. 604, 605, 52 So. 2d 710 (1951). “The act approved June 
18, 1943, requires that all courts of the State take judicial knowl­
edge of the ordinances of the City of Birmingham.” Monk v. 
Birmingham, 87 P. Supp. 538 (N. D. Ala. 1949), aff’d 185 P. 2d 
859, cert, denied 341 U. S. 940. And this Court takes judicial notice



8

in restaurants by solid partition and that they have sep­
arate entrances. The evidence was excluded (Gober 24, 
Davis 25).

Gottlinger did not call the police (Gober 24, Davis 25); 
when asked by the police whether he witnessed the episode, 
petitioners already had been arrested and were being es­
corted out of the store by the police (Gober 24, 25; Davis 
25, 26). It does not appear that any store official summoned 
the police or made a complaint (Gober 24, 25; Davis 25, 26).

H utchinson and K ing

Police Officer Martin proceeded to Loveman’s Depart­
ment Store, Birmingham, along with Officer Holt who told 
him to accompany him on his motorcycle (Hutchinson 17, 
King 17). At the dining area entrance Martin found a 
rope tied from one post to another; a sign stated the area 
was closed. {Ibid.) He saw two Negro boys at a table 
but had no conversation “ . . . other than to tell them that 
they were under arrest”. {Ibid.)

He did not know of his own knowledge that anyone from 
Loveman’s had asked them to leave (Hutchinson 18, King 
18). Apparently at the same time Police Lt. Purvis ap­
proached Mr. Schmid, the dining area concessionnaire, 
stating that “ . . . someone called us that you had two 
people in here that were trying to be served . . . ” Schmid 
pointed to petitioners (Hutchinson 22, King 22).

The Protective Department had been notified because, 
as Mr. Schmid testified, “naturally”, in this case, there was 
a “disturbance of the peace” (Hutchinson 22, King 22). 
The only disturbance, however, was that “ . . . the waiters

of laws~which the highest court of a state may notice. Junction 
B E  Co v. Ashland Bank, 12 Wall. (U. S.) 226, 230; Abie State 
Bank v. Bryan, 282 U. S. 765, 777, 778; Adams v. Saenger, 303 
U. S. 59; Owings v. Hull, 9 Peters (U. S.) 607, 625.



9

left the floor.” {Ibid.) Petitioners were not boisterous or 
disorderly (Hutchinson 28, King 28).

Mr. Kidd of the Protective Department who apparently 
was in charge of the situation at no time spoke to peti­
tioners (Hutchinson 25, King 25). He merely asked the 
white persons there to leave. {Ibid.) Neither did he call 
the police, but was notifying patrons that the restaurant 
was closed when they arrived. So far as he knew’ no one 
called the police (Hutchinson 26, 29, King 26, 29).

Loveman’s invites the general public to trade and sells 
general merchandise (Hutchinson 31, King 31). Its eating 
facilities, however, are for whites only (Hutchinson 24, 
King 24).

Parker and W est

Police Officer Myers received a radio call from head­
quarters to proceed to Newberry’s, Birmingham; visited 
the eating area and found “Two colored males [petitioners 
West and Parker] were sitting at the lunch counter”, 
which was “out of the ordinary” (Parker 16-17, West 
13-14). He did not speak with them nor did they converse 
with any store employee in his presence (Parker 17, West 
14), but he arrested them for trespass after warning, it 
having been his “understanding” that his partner had re­
ceived a complaint from a Mr. Stallings, whose capacity 
at the store the witness did not know, nor did the witness 
know whether he was employed there (Parker 18-19, West 
15-16).

West had met Parker at the store where West had pur­
chased some paper and small comic books (Parker 29, 
West 26). When they seated themselves some white people 
were eating, but petitioners were not served (Parker 30, 
West 27). No sign at the counter indicated service for



10

whites only. (Ibid.) (At a Negro counter elsewhere in the 
store a sign stated “for colored only”. (Parker 24, West 
21).) The officers, upon arrival, ordered the white people 
to get up, but all did not leave (Parker 31, West 28).

Mrs. Gibbs, the store detective, told petitioners they 
could be served at a Negro snack bar on the fourth floor 
but not where they were seated (Parker 21, West 18). 
(Nor could they be served at another lunch counter for 
whites only in the basement (Parker 22, West 19).)

Assistant Store Manager Stallings also asked petitioners 
to patronize the Negroes-only counter. Stallings, however, 
did not call the police, but was informed that “someone” 
did. He made no complaint to the police at the time of 
arrest, nor subsequently, and did not know whether any­
one else did (Parker 23-24, West 20-21).

Newberry’s advertises and sells merchandise to the gen­
eral public. Negroes and whites shop together on the first 
floor (Parker 24-25, West 21-22).

Petitioners’ counsel attempted to establish that the lunch 
counter segregation policy was the City of Birmingham’s, 
not Newberry’s (Parker 25-27, West 22-24). This line of 
inquiry was held incompetent (Parker 27, West 24).

Sanders and W estm oreland

Officer Caldwell of the Birmingham police was called to 
Kress’s five and ten cent store, Birmingham, the same morn­
ing (Sanders 16, Westmoreland 13). Upon arrival he pro­
ceeded to the basement and observed “two black males” 
(ibid.) seated. He heard the manager inform petitioners 
they could not be served, the lights were turned out and 
the counter closed. Caldwell arrested them (Sanders 17, 
18, Westmoreland 14, 15), but did not hear any request



11

that petitioners leave; no one in Kress’s asked him to arrest 
them (ibid.).

When petitioners had seated themselves at a lunch 
counter bay the steward or manager, Pearson, closed it, 
informed them they could not be served, and turned out 
that bay’s lights. They then requested service at a second 
bay. Pearson said: “Boys, you will have to leave because I 
can’t serve you and the bay is closed. We are closing” 
(Sanders 19, Westmoreland 16). A woman already seated 
at the counter, however, remained after “closing” and so 
far as the steward knew, was not arrested and he was not 
called to bear witness against her (Sanders 26, Westmore­
land 23).

One petitioner told him, “Well, we have our rights” 
(Sanders 19, Westmoreland 16); Pearson called the man­
ager who approached the counter and asked Pearson 
whether he had asked them to leave. While the witness at 
this point stated that the manager asked them to leave the 
store (Sanders 20, Westmoreland 17), on cross-examination 
he explained:

“Q. To leave that section, yes. In the store? A. 
The store was not mentioned” (Sanders 21, Westmore­
land 18).

When Pearson and the manager left the bays, the police 
entered, asked petitioners to get up, additional police en­
tered, and the first two officers escorted petitioners from 
the store. Neither Pearson nor the manager called the 
police, neither asked for the arrest, neither signed the 
complaint (Sanders 21-23, Westmoreland 18-20).

Kress’s is a general department store advertising to the 
general public (Sanders 22, Westmoreland 19), but has no 
food service facilities for Negroes (Sanders 23, Westmore­
land 20), although they are solicited to and may buy food



12

to carry out (Sanders 26, Westmoreland 23). Whites and 
Negroes, however, purchase from the same counters at all 
other departments (Sanders 24, Westmoreland 21).

W alker and Willis

The Birmingham Police Department radio dispatched 
Officer Casey to Woolworth’s. There he observed something 
“unusual or out of the ordinary” : two Negro males, peti­
tioners Walker and Willis, at the lunch counter (Walker 
16-18, Willis 13-15). Mrs. Evans, manager of the lunch 
counter, he testified, told petitioners to leave (Walker 19, 
Willis 16). Neither Mrs. Evans, nor anyone from the store, 
instructed him to arrest them, nor did she complain other 
than to say she wanted them to leave the counter—not the 
store (Walker 19, Willis 16). The police informed persons 
connected with the store that “they would have to come 
to headquarters or be contacted to sign a warrant” (Walker 
19-20, Willis 16-17), but Officer Casey did not know whether 
such a warrant was signed (ibid.).

Walker and Willis had purchased various articles and 
then went to the counter (Walker 21, Willis 18). Walker 
denied that Mrs. Evans had spoken to them at all and testi­
fied that only the police asked him to leave (Walker 22, 
Willis 19). He testified also that white persons at the 
counter were served while he was seated. No white person, 
however, was arrested (Walker 22, Willis 19). No signs 
at the counter designated it for whites or Negroes (Walker 
23, Willis 20).

Facts in Com mon

All the cases have salient facts in common. The protest 
demonstrations occurred in department stores open to the 
general public, including Negroes, but whose dining areas 
were segregated (Gober 48-49, Davis 49-50; Hutchinson 24,



13

31, King 24, 31; Parker 21, 24, 25, West 18, 21, 22; Sanders 
22, 23, 24, 26, Westmoreland 19, 20, 21, 23; Walker 21; Willis 
18). Nevertheless, apparently no racial signs were posted 
at any of the “white” dining areas (Gober 50, Davis 50; 
Hutchinson 28, King 28; Parker 27, West 30; Sanders 24, 
Westmoreland 21; Walker 23, Willis 30). In no case is 
there evidence that a person asking petitioners to leave 
identified himself as having authority to do so5 (Gober 
19-22; Davis 20-23; Hutchinson 18, 22, 25; King 18, 22, 25; 
Parker 23; West 20; Sanders 19, 20; Westmoreland 16, 17; 
Walker 18; Willis 15).

In each ease the police immediately arrested petitioners 
without a request from anyone connected with the store 
(Gober 15-18, Davis 16-19; Hutchinson 18, 26, King 18, 
26; Parker 23-24, West 20-21; Sanders 21-23, Westmore­
land 18-20; Walker 19, Willis 16). In no case does it appear 
that anyone connected with the store called the police or 
subsequently signed a complaint, affidavit or warrant 
(Gober 25, 26, Davis 24, 25; Hutchinson 29, King 29; 
Parker 23-24, West 20-21; Sanders 21-23, Westmoreland 
18-20; Walker 18, 19, 20, Willis 15, 16, 17). In no case 
were petitioners requested to leave the store itself as op­
posed to the counter area (Gober 23, Davis 22; Hutchinson 
25, King 25; Parker 21, 22, West 18, 19; Sanders 20, 21, 
Westmoreland 17, 18; Walker 19, Willis 16). In each case 
petitioners were charged that they “did go or remain on 
the premises of another, said premises being the area used 
for eating, drinking and dining purposes . . . after being 
warned not to do so” (Gober 2, Davis 2; Hutchinson 2, 
King 2; Parker 2, West 2; Sanders 2, Westmoreland 2; 
Walker 2, Willis 2).

5 In Parker and West, the store detective testified that he “iden­
tified” himself (Parker 18; West 21) but he nowhere testified that 
he identified himself as a person who had authority to ask them 
to leave the counter or that, in fact, he had such authority or, 
for that matter, as to what about himself he identified.



14

In each case the store management was prohibited from 
serving Negroes and whites in the same dining area by an 
Ordinance of the City of Birmingham which compelled 
racial segregation. See supra pp. 7-8, note 4, p. 7.

How the Federal Questions Were Raised 
and Decided Below

After conviction in the Recorders Court of the City of 
Birmingham petitioners appealed to the Circuit Court of 
the Tenth Judicial Circuit of Alabama for trials de novo, 
prior to which they filed motions to strike the complaints 
and demurrers, alleging that Section 1436 of the General 
City Code of Birmingham was unconstitutionally applied 
to them in that while patronizing stores open to the general 
public they were charged with trespass on account of race 
and color contrary to the equal protection and due process 
clauses of the Fourteenth Amendment; that Section 1436 
denied due process of law secured by the Fourteenth 
Amendment in that it was unconstitutionally vague by not 
requiring that the person making the demand to depart 
identify his authority; that the ordinance was unconstitu­
tionally applied in that they were engaged in sit-in demon­
strations and were denied freedom of assembly and speech 
secured by the Fourteenth Amendment (Gober, Davis; 
Hutchinson, King; Parker, West; Sanders, Westmoreland; 
Walker, Willis, 2-4).

The motions to strike and the demurrers were overruled ; 
exceptions were taken (Gober 7, Davis 8; Hutchinson, King 
8; Parker 8, West 5; Sanders 8, Westmoreland 5; Walker 
8, Willis 5).

During the trial of Gober and Davis, the first trials of the 
series, petitioners attempted to introduce evidence that the 
stores were acting in conformance to General City Code



15

of Birmingham §369 (1944), which requires racial segrega­
tion in establishments serving food. This line of inquiry 
was held incompetent (Gober 22-24, Davis 23-25).

At the close of the State’s evidence, petitioners moved to 
exclude the evidence alleging, among other tilings: that 
the complaints were invalid because the trespasses charged 
were based solely on race, depriving them of due process 
and equal protection of the laws under the Fourteenth 
Amendment; that petitioners were peacefully assembled to 
speak and protest against the custom of racial discrimina­
tion in public establishments and were prosecuted for the 
purpose of denying them freedom of assembly and speech 
guaranteed by the Fourteenth Amendment; that the ordi­
nance was unconstitutionally vague in not requiring that 
the persons requesting petitioners leave produce any evi­
dence of authority to make the demand, whereby petitioners 
would be apprised of the validity of the demands to leave, 
thereby denying the petitioners due process of law under 
the Fourteenth Amendment; that all of the stores involved 
are vitally affected with the public interest and have as­
sumed functions which the state would assume were they 
not in existence, whereby denial to petitioners of equal 
access to all their facilities solely because of race is a denial 
of due process and equal protection under the Fourteenth 
Amendment (Gober, Davis 5-7; Hutchinson, King 5-7; 
Parker 5-7, West 25 (and see Parker 5-7); Sanders 5-7; 
Walker 5-7, Willis 17).

The motions to exclude the evidence were overruled and 
exception taken (Gober, Davis 8; Hutchinson, King 8; 
Parker 8, West 5; Sanders 8, Westmoreland 5; Walker 8, 
Willis 5).

At the end of each trial petitioners moved for new trials 
alleging, among other things, that: the trespass ordinance 
was unconstitutionally applied to deprive them of free



16

speech, equal protection of the laws and other liberties 
guaranteed by the Fourteenth Amendment to the United 
States Constitution; that the Court erred in overruling 
the motions to strike the complaint, the demurrers and the 
motions to exclude evidence (Gober 9-11, Davis 10-12; 
Hutchinson, King 10-12; Parker 10, 11, West 7, 8; Sanders 
10, 11, Westmoreland 7, 8; Walker 10, 11, Willis 7, 8). The 
motions for new trial were overruled (Gober 9, 11, Davis 
9, 12; Hutchinson, King 9, 12; Parker 9, 12, West 6, 9; 
Sanders 9, 12, Westmoreland 6, 9; Walker 9, 12, Willis 6, 
9).

Appeals were taken to the Alabama Court of Appeals and 
Assignments of Errors were filed against the action of the 
trial court in overruling the motions to strike the complaint 
(Assignment 1), the demurrers (Assignment 2), the mo­
tions to exclude the evidence (Assignment 3) and the 
motions for new trial (Assignment 4) (Gober 55, Davis 58; 
Hutchinson, King 41; Parker 43, West 40; Sanders 25, 
Westmoreland 32; Walker 35, Willis 32).

In Gober v. City of Birmingham, 6th Division 797, Ala. 
App. Ms. the Court of Appeals of Alabama wrote a full 
opinion (Gober 58) and all other cases were affirmed on 
the authority of Gober (Gober 58, Davis 60; Hutchinson 42, 
King 42; Parker 45, West 41; Sanders 36, Westmoreland 
33; Walker 36, Willis 33).

While the Court held the motions to strike the complaint 
an improper means to raise a constitutional objection and 
refused to consider the demurrers, it did pass upon all of 
the constitutional questions raised by rejecting, adversely, 
on the merits, the objections to overruling the motions to 
exclude the evidence and the motions for new trial: “We 
find no merit in appellant’s Assignments numbers 3 and 4” 
(Gober 64).

Specifically the court held that petitioners had not been 
denied freedom of speech:



17

“Counsel lias argued, among other matters, various 
phases of constitutional law, particularly as affected 
by the Fourteenth Amendment of the Federal Consti­
tution, such as freedom of speech, in regard to which 
counsel stated: ‘What has become known as a “sit-in” 
is a different, but well understood symbol, meaningful 
method of communication.’ Counsel has also referred 
to cases pertaining to restrictive covenants. We con­
sider such principles entirely inapplicable to the pres­
ent case” (Gober 62).

Further, the court held the petitioners had not been denied 
due process and equal protection of the laws secured by the 
Fourteenth Amendment:

“The right to operate a restaurant on its own prem­
ises under such conditions as it saw fit to impose was 
an inalienable property right possessed by the Pizitz 
store. The appellant would destroy this property right 
by attempting to misapply the Fourteenth Amendment, 
ignoring the provision in that Amendment that grants 
the right to a private property owner to the full use 
of his property, that is: ‘Nor shall any state deprive 
any person of life, liberty or property without due 
process of law’ ” (Gober 63).

Moreover:

“As stated in Williams v. Howard Johnson Restau­
rant (C.C.A. 4), 368 Fed. 2d 845, there is an ‘important 
distinction between activities that are required by the 
State and those which are carried out by voluntary 
choice and without compulsion by the people of the 
State in accordance with their own desires and social 
practices’ ” (Gober 64).



18

Applications for rehearing before the Court of Appeals 
were overruled (Gober 66, Davis 61; Hutchinson, King 43; 
Parker 46, West 42; Sanders 37, Westmoreland 34; Walker 
37, Willis 34). Writs of certiorari, sought in the Supreme 
Court of Alabama, were denied (Gober 72, Davis 67; 
Hutchinson 47, King 48; Parker 46, West 50; Sanders 42, 
Westmoreland 38; Walker 43, Willis 39). Applications for 
rehearing before the Supreme Court of Alabama were over­
ruled (Gober 74, Davis 69; Hutchinson 49, King 50; Parker 
48, West 52; Sanders 44, Westmoreland 40; Walker 45, 
Willis 41).

Reasons for Granting the Writ

The court below decided these cases in conflict with prin­
ciples declared by this Court as is further set forth below:

I.

Petitioners were denied due process of law and equal 
protection of the laws by conviction of trespass for 
refusing to leave white dining areas where their exclu­
sion was required by City ordinance.

Despite the fact that petitioners ostensibly were con­
victed for “trespass after warning” they actually were 
sentenced to jail and fined by Alabama for having violated 
the segregation policy of the City of Birmingham. This 
policy is expressed in the General Code of Birmingham 
§369 (1944) requiring all eating establishments to main­
tain separate facilities for Negroes and whites “ . . . sep­
arated by a solid partition extending from the floor up­
ward to a distance of seven feet or higher . . . ” and re­
quiring that separate entrances be maintained for each 
race. Efforts to establish by evidence that this ordinance 
prevented the managers of the stores from rendering the



19

nonsegregated service sought by petitioners was excluded 
at the trial in the very first of the cases tried (Gober 22-23,® 
Davis 23-24).

Moreover, corollary efforts to inquire concerning whether 
exclusion from the dining areas was demanded pursuant 
to the policy of the stores as distinct from that of the City 
also were rejected. Counsel for petitioners argued to the 
trial court:

“The meat in this coconut is whether or not the New­
berry’s Department Store has complained or the City 
of Birmingham. It is our theory of the case it is nec­
essary for the owner of the premises to be complain­
ing and we are trying to find out if they have com­
plained.”

(And see the remainder of the colloquy (Parker 25-27, 
West 22-24).) But whether the stores desired not to serve 
was held inadmissible' (Ibid.).

Indeed, in the King and Hutchinson cases no one con­
nected with management had expressly asked petitioners— 
as distinct from white patrons—to leave the dining area. 
Rather, it was announced “in general terms that the tea­
room was closed and for everyone please to leave” (King 
20, Hutchinson 20). Yet, twenty-five “whites were still sit­
ting there when the two Negroes were there, when the 
police officers came” (King 23, Hutchinson 23). But, while 
petitioners were arrested summarily, it does not appear 
that any of the whites were arrested (Ibid.). White per­
sons merely were requested to leave.

Further confirmation that the policy of enforcing seg­
regation was the City’s, appears from how the arrests were 
made. The police proceeded to the stores in question and

See pp. 6-8, supra.



20
without requests to arrest by the management (See “Facts 
in Common,” supra p. 12), immediately arrested peti­
tioners. There is no evidence that anyone connected with 
the stores called the police {Ibid.). And petitioners were 
arrested even when police had no knowledge that anyone 
had refused to serve (King 23, Hutchinson 23) or had 
asked them to leave the dining area (Gober 15-17, Davis 
16-18; Parker 16-17, West 13-14). The conduct of the 
stores in these circumstances gives rise to an inference 
that the store managers were willing to tolerate the dem­
onstrations. As Mr. Justice Harlan has written. There was:

“ . . . the reasonable inference . . . that the management 
did not want to risk losing Negro patronage in the 
stores by requesting these petitioners to leave the 
‘white’ lunch counters, preferring to rely on the hope 
that the irritations of white customers or the force 
of custom would drive them away from the counters. 
This view seems the more probable in circumstances 
when, as here, the ‘sitters’ ’ behaviour was entirely 
quiet and courteous, and, for all we know, the counters 
may have been only sparsely, if to any extent, occupied 
by white persons.” Garner v. Louisiana, 30 U. S. L. 
Week 4070, 4082 (Mr. Justice Harlan concurring).

If the stores were willing to cope with the controversy 
within the realm of social and economic give and take, 
Birmingham had no constitutional authority to intervene as 
an enforcer of segregation.

The discriminatory practices in these stores, the de­
mands that petitioners leave and their arrests and convic­
tions, result, therefore, directly from the formally enacted 
policy of the City of Birmingham, Alabama, and not (so 
far as this record indicates) from any individual or cor­
porate decision or preference of the management of the



21
stores to exclude Negroes from the lunch counters. What­
ever the choice of the property owners may have been, here 
the City made the choice to exclude petitioners from the 
property through its segregation ordinance. This city seg­
regation policy was enforced by petitioners’ arrests, con­
victions, and sentences of imprisonment in the Alabama 
courts.

The Alabama Court of Appeals dismisses reference to 
the city segregation ordinance by stating “there is no ques­
tion presented in the record before us, by the pleading, 
of any statute or ordinance requiring the separation of the 
races in restaurants. The prosecution was for a criminal 
trespass on private property” (Gober 63). (All other con­
victions were affirmed on authority of Gober.) But the 
Constitution forbids “sophisticated as well as simple- 
minded modes of discrimination” Lane v. Wilson, 307 U.S. 
268, 275.

By enacting, first, that persons who remain in a restau­
rant when the owner demands that they leave are “tres­
passers,” and then enacting that restaurateurs may not 
permit Negroes to remain in white restaurants, the City 
has very clearly made it a crime (a trespass) for a Negro 
to remain in a white restaurant.7

Exclusion by the trial court of evidence concerning the 
ordinance and the policy of the City of Birmingham does 
not negate the fact that Birmingham is enforcing segrega­
tion. By Alabama statute all courts of the State are “re­
quired” to take judicial notice of the ordinance of the City

7 Racial segregation imposed under another name often has been 
condemned by this Court. Guinn v. U. S., 238 U.S. 347; Lane v. 
Wilson, supra; Davis v. Schnell, 81 P. Supp. 872 (S.D. Ala. 1949) 
aff’d 336 U.S. 933; and see Louisiana State University and A. & M. 
College v. Ludley, 252 P. 2d 372 (5th Cir. 1958), cert, denied 358 
U.S. 819.



22

of Birmingham. This Court can and will judicially notice 
matter that the courts below could notice.8

The case thus presents a plain conflict with numerous 
prior decisions of this Court invalidating state efforts to 
require racial segregation. Buchanan v. Warley, 245 U.S. 
60; Brown v. Board of Education, 347 U.S. 483; Gayle v. 
Browder, 352 U.S. 903, aff’g 142 F. Supp. 707, 712 (M.D. 
Ala. 1956); Holmes v. City of Atlanta, 350 U.S. 879; Mayor 
and City Council of Baltimore v. Dawson, 350 U.S. 877; 
State Athletic Commission v. Dorsey, 359 U.S. 533; Cf. 
Burton v. Wilmington Parking Authority, 365 U.S. 715. 
Note the dissenting opinion of Judges Bazelon and Edger- 
ton in Williams v. Hot Shoppes, Inc., 293 F. 2d 835, 843 
(D.C. Cir. 1961) (dealing primarily with the related issue of 
whether a proprietor excluding a Negro under an errone­
ous belief that this was required by state statute was liable 
for damages under the Civil Rights Acts; the majority ap­
plied the equitable abstention doctrine). Indeed, Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845, 847 (4th 
Cir. 1959), relied upon by the Alabama Court of Appeals 
below, indicated that racial segregation in a restaurant “in 
obedience to some positive provision of state law” would 
be a violation of the Fourteenth Amendment. See also 
Boman v. Birmingham Transit Company, 280 F. 2d 531 
(5th Cir. 1960); Baldwin v. Morgan, 287 F. 2d 750 (5th 
Cir. 1961).

See Note 4, supra.



23

II.
P etition ers w ere den ied  due process and equal pro­

tection  by convictions for  trespass for  refusal to leave  
w liites-only d in in g  areas o f  departm ent stores in  w hich  
a ll persons are otherw ise served w ithout d iscrim ination .

Even should the convictions be viewed as enforcing an 
alleged “inalienable property right” (Opinion of the Ala­
bama Court of Appeals, Gober 63) to order customers about 
within a store the judgments below conflict with principles 
declared by this Court.

The state by arrest and criminal conviction has “place[d] 
its authority behind discriminatory treatment based solely 
on color . . . ” Mr. Justice Frankfurter dissenting in 
Burton v. Wilmington Parking Authority, 365 U.S. 715, 727, 
by enforcing a policy of deploying customers within a store 
on the basis of race. This appears immediately from the 
complaints, all of which describe the premises upon which 
petitioners allegedly trespassed as the “area used for eat­
ing, drinking and dining purposes and located within the 
building commonly and customarily known as . . .  ” (em­
phasis supplied). (See, e.g., Gober 2.) No question arose 
about the legality of petitioners’ presence within the stores 
—indeed, their patronage was actively solicited—but only 
whether for reasons of race they might be convicted for 
failure to move from particular portions of each store 
where they sought sit-down food service. And when peti­
tioners were asked to leave, they were rejected from the. 
dining areas only—not the stores. Moreover, in the cases 
of Hutchinson and King (Hutchinson 2o, King 25) they 
were not even asked to leave the dining areas. We have 
here, therefore, the state racially re-arranging by means 
of a trespass ordinance the customers within a single store.



24

Petitioners submit that the state’s interest in maintain­
ing such a “property” right is hardly sufficient to negate 
the well-established principle that the Fourteenth Amend­
ment forbids government to enforce racial discrimination.

That private property may be involved hardly settles a 
claim that Fourteenth Amendment rights have been denied. 
Marsh v. Alabama, 326 U.S. 501, 506; Buchanan v. Warley, 
245 U.S. 60, 74; United States v. Willow River Power Co., 
324 U.S. 499, 510; Shelley v. Kraemer, 334 U.S. 1. The 
stores were open generally to the public, advertised, and 
solicited it to purchase generally. The stores were “part 
of the public life” of the community. Garner v. Louisiana, 
supra at 7 L. ed. 2d 222 (Mr. Justice Douglas concur­
ring). Negroes and whites were served without distinction 
except at lunch counters where Negroes were served only 
in separate sections or were permitted to purchase food to 
take out. None of the lunch counters contained signs ex­
cluding Negroes. All were integral parts of the establish­
ments into which petitioners were invited. Petitioners 
sought to use the dining areas in their usual, intended 
manner. None of the dining sections were treated by the 
proprietors themselves as private in any sense except that 
upon being seated Negroes were denied service. Thus, the 
“property” right which the state has enforced is a “right” 
to discriminate among patrons on the basis of race in one 
particular aspect of the service of a single establishment.

But beyond this, the record demonstrates that the alleged 
property right being enforced was not in reality being as­
serted by private proprietors—it was a manifestation of 
state policy. This policy is, first of all and most clearly, 
expressed in the Birmingham restaurant segregation Or­
dinance §369. It is manifested also in a massive statutory 
and state constitutional structure which impresses segre-



25

gation on innumerable activities of all of the citizens of 
Alabama.

See, Alabama Constitution §111 amending §256 (nothing 
in the Constitution to be construed as creating a right to 
public education; legislature authorized to provide for 
education taking into account the preservation of “peace 
and order” and may authorize parents to send their chil­
dren to schools “for their own race”). Code of Alabama 
Title 1 §2 (defines “Negro” and “Mulatto”) ; Title 52 §24 
(authorizes appointment of an Advisory Board for Negro 
Educational Institutions); Title 52 §§452-455 (maintenance 
of Alabama A. & M. Institute for Negroes); Title 52 
§455(1)-(4) (maintenance of Tuskegee Institute for 
Negroes only); Title 45 §248 (schools for the mentally 
deficient to be built taking into account separation of the 
races); Title 45 §4 (prisoners in tubercular hospitals to 
be separated on basis of race); Title 14 §§360-361 (mar­
riage, adultery and fornication between Negroes and whites 
a felony; officer issuing license for such a marriage commits 
misdemeanor). Alabama Constitution §102 (legislature 
may never permit interracial marriages). Title 46 §189(19) 
(white women may not act as nurses in any public or 
private hospital where Negro men are patients); Title 44 
§10 (county homes for the poor to be segregated); Title 51 
§244 (a breakdown of the poll tax on the basis of race must 
be taken); Title 45 §§121-123, 52, 183 (white and Negro 
prisoners must be separated); Title 48 §§186, 196-197, 464 
(Negroes and whites must be separated in railroad coaches 
and waiting rooms); Title 48 §301 (31a, b, c) (Negroes 
and whites to be separated on intrastate buses). See Brow­
der v. Gayle, 352 U.S. 903 (1956).

Segregation is all of a piece. When the state decrees 
and enforces it at myriad points it hardly can claim that 
a proprietor who follows massive governmental policy in



26

racially segregating customers is exercising rights of “pri­
vate property.”

Petitioners submit that it is “irony amounting to grave 
injustice that in one part of a single building . . .  all per­
sons have equal rights, while in another portion, also ser­
ving the public, a Negro is a second-class citizen, offensive 
because of his race. . . . ” Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 724. While the excised language 
(replaced by dots) in the quotation from Burton refers to 
a building “erected and maintained with public funds by 
an agency of the States,” 365 U. S. 715, at 724, the legal 
significance of the omitted phrase, petitioners submit, was 
to supply the Fourteenth Amendment element of state ac­
tion. In Burton, where, petitioner was neither arrested nor 
prosecuted, this element was furnished by the facts that, 
inter alia, “the authority, and through it the state has not 
only made itself a party to the refusal of service, but has 
elected to place its power, property and prestige behind the 
admitted discrimination.” 365 U.S. 715, at 725. In the in­
stant suit state participation bites more deeply for peti­
tioners have by Alabama courts been branded criminals 
and relegated to “30 days hard labor for the City.”

The “property” right (racial discrimination in accord­
ance with state custom supported by state law) within a 
single store open to the public which Alabama seeks to 
preserve by applying the Birmingham trespass ordinance, 
is so narrow as to not deserve—in face of the Fourteenth 
Amendment—state protection. Indeed, is the kind of “prop­
erty right” which many states have taken away without, 
this Court has held, denying due process of law. Bailway 
Mail Ass’n v. Corsi, 326 U.S. 88, 93, 94. It is not the sort 
of “property” right involving considerations entitled to 
high constitutional protection as, for example, the right of 
privacy treated in Mapp v. Ohio, 367 U.S. 643 and see Poe



27

v. Ullman, 367 U.S. 497. Cf. Frank v. Maryland, 359 U.S. 
360. Here, indeed, it is a case where the right of private 
property in a store, part of the public life of the community, 
should be “limited by the neighborhood of principles of 
policy which are other than those on which the particular 
right is founded. . . . ” Hudson County Water Co. v. 
McCarter, 209 "U.S. 349, 356. These principles of policy 
are the principles of the Fourteenth Amendment which 
forbid the state to enforce racial discrimination. To make 
policemen ushers within public stores, whose duties are to 
direct the respective races here and there under threat of 
jail sentence, petitioners submit, far exceeds anything the 
Fourteenth Amendment ever has permitted.

III.
T h e convictions deny due process o f  law in  that they  

rest on  an ordinance w hich  fa ils  to sp ecify  that peti­
tioners should  have obeyed com m ands to depart g iven  
by persons w ho did n ot establish  authority to issue  
such orders at the tim e given .

In the courts below petitioners asserted that the ordi­
nance in question as applied to them denied due process 
of law secured by the Fourteenth Amendment to the Con­
stitution of the United States in that it did not require that 
the persons requesting them to leave the dining areas estab­
lished or, indeed, asserted their authority to make the 
demands. In none of the ten records before this court did 
the persons who demanded that petitioners leave, first 
inform petitioners or demonstrate to them that they had 
authority to request that the petitioners leave the areas 
in question. Only in one pair of cases (Parker 18, West 21) 
did the witness say that he “identified” himself. Yet there 
was no evidence that he claimed authority to order peti­
tioners out of the dining area, or indeed, that the witness



28

possessed such authority. No one ordinarily may be ex­
pected to assume that one who tells him to leave a public 
place, into which the proprietor invited him and in which 
he has traded, is authorized to utter such an order when 
no claim of such authority is made.

This is especially true in the case of a Negro seating 
himself in a white dining area, in Birmingham, Alabama— 
obviously a matter of controversy and on which any 
stranger might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when ordered to do so by a person who later turns out to 
have been in authority without a claim of authority at the 
time, it means as a practical matter that one must depart 
from a public place whenever told to do so by anyone; the 
alternative is to risk fine or imprisonment. Such a rule 
might be held a denial of due process. Cf. Lambert v. 
California, 355 U.S. 225. But if such is the rule the statute 
gives no fair warning; absent such notice petitioners surely 
were entitled to assume that one may go about a public 
place under necessity to observe orders only from those 
who claim with some definiteness the right to give them.

Indeed, as a matter of due process of law, if it is the rule 
one must obey all orders of strangers to leave public places 
under penalty of criminal conviction if one uttering the 
order later turns out to have had authority, petitioners are 
entitled to more warning of its harshness than the ordi­
nance’s text affirmed. Connolly v. General Construction Co., 
269 U.S. 385; Lanzetta v. New Jersey, 306 U.S. 451. Other­
wise many persons—like these petitioners—may be held 
guilty of crime without having intended to do wrong. This 
Court has said however, that:

“The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or



29

transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the hu­
man will and a consequent ability and duty of the 
normal individual to choose between good and evil.” 
Morrissette v. U. S., 342 U.S. 246, 250.

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev. 
55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U.S. at 252-260.

Indeed, the ordinance in question is significantly different 
from Code of Alabama, Title 14, §426, which at least ex­
culpates those who enter with “legal cause or good excuse” 
a phrase missing from the Birmingham ordinance. Cf. 
Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So. 815; 
McCord v. State, 79 Ala. 269; American Law Institute, 
Model Penal Code, Tentative Draft No. 2, §206.53, Comment.

On the other hand however, if Alabama were to read a 
scienter provision into this ordinance for the first time— 
which it has failed to do although the issue was squarely 
presented in these ten cases—the lack of the necessary ele­
ment of guilt, notice of authority, patent on the face of all 
ten records, would require reversal under authority of 
Garner v. Louisiana, supra; Thompson v. City of Louisville, 
362 U.S. 199.



30

IV.
T h e d ecision  below  conflicts w ith  decision s o f  th is  

Court securing  the right o f  freed om  o f  exp ression  u n ­
der the F ourteen th  A m endm ent to the C onstitution  o f  
the U n ited  States.

Petitioners were engaged in the exercise of free expres­
sion, by verbal requests to the management for service, 
and nonverbal requests to the management for service, 
and nonverbal requests for nondiscriminatory lunch coun­
ter service, implicit in their continued remaining in the 
dining area when refused service. As Mr. Justice Harlan 
wrote in Garner v. Louisiana: “We would surely have to 
be blind not to recognize that petitioners were sitting at 
these counters, when they knew they would not be served, 
in order to demonstrate that their race was being segre­
gated in dining facilities in this part of the country.” 
7 L. ed. 2d at 235-36. Petitioners’ expression (asking for 
service) was entirely appropriate to the time and place 
at which it occurred. They did not shout or obstruct the 
conduct of business. There were no speeches, picket signs, 
handbills or other forms of expression in the store pos­
sibly inappropriate to the time and place. Kather they 
offered to purchase in a place and at a time set aside for 
such transactions. Their protest demonstration was a part 
of the “free trade in ideas” (Abrams v. United States, 250 
U.S. 616, 630, Holmes, J., dissenting), within the range of 
liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U.S. 359 
(display of red flag) ; Thornhill v. Alabama, 310 U.S. 88 
(picketing); West Virginia State Board of Education v. 
Barnette, 319 U.S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 U.S. 449 (freedom of association).

Questions concerning free speech expression are not 
resolved merely by reference to the fact that private prop-



31

erty is involved. The Fourteenth Amendment right to 
free expression on private property takes contour from 
the circumstances, in part determined by the owner’s pri­
vacy, his use and arrangement of his property. In Breard 
v. Alexandria, 341 U.S. 622, the Court balanced the “house­
holder’s desire for privacy and the publisher’s right to dis­
tribute publications” in the particular manner involved, 
upholding a law limiting the publishers’ right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U.S. 
141 where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of assertion 
and the action of the State, through its officers, its customs 
and its creation of the property interest are to be taken 
into account.

In this constitutional context it is crucial, therefore, that 
the stores implicitly consented to the continuance of the 
protest and did not seek intervention of the criminal law. 
For, this case is like Garner v. Louisiana., supra, where 
Mr. Justice Harlan, concurring, found a protected area of 
free expression on private property on facts regarded as 
involving “the implied consent of the management” for the 
sit-in demonstrators to remain on the property. In none 
of the cases at bar did anyone other than the police request 
petitioners to leave the store. In one pair of cases there 
was not even a request to leave the dining area. The 
pattern of police action, obviously, was to arrest Negroes 
in white dining areas. In no case does it appear that anyone 
connected with the store called the police or subsequently 
signed an affidavit or complaint. In each case the police 
officer proceeded immediately to arrest the petitioners with­
out any request to do so on the part of anyone connected 
with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at these



32

counters and tables, a dispute being resolved by persuasion 
and pressure in a context of economic and social struggle 
between contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U.S. 236.

But even to the extent that the stores may have acqui­
esced in the police action a determination of free expres­
sion rights still requires considering the totality of cir­
cumstances respecting the owner’s use of the property and 
the specific interest which state judicial action supports. 
Marsh v. Alabama, 326 U.S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 U.S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F'. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D.C. Cir. 
1956), reversed on other grounds, 357 U.S. 357, and com­
pare the cases mentioned above with N.L.R.B. v. Fansteel 
Metal Corp., 306 U.S. 240, 252, condemning an employee 
seizure of a plant. In People v. Barisi, 193 Misc. 934, 86 
N.Y.S. 2d 277, 279 (1948) the Court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “circumscribed by the constitutional rights of those 
whose use it.” See also Freeman v. Retail Clerks Union,



33

Washington Superior Court, 45 Lab. Eel. Ref. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Eel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent 
state interest being subserved by these trespass prosecu­
tions is support of the property owner’s discrimination in 
conformity to the State’s segregation custom and policy 
and the express terms of the City Ordinance. This is all 
that the property owner can be found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the state has the right to prevent. 
Schenck v. United States, 249 U.S. 47, 52. The only “sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimination 
of racial discrimination, but this is not an “evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U.S. 1; Terminiello v. Chi­
cago, 337 U.S. 1; Sellers v. Johnson, 163 F. 2d 877 (8th 
Circuit, 1947), cert, denied 332 U.S. 851.

Moreover, if free speech under these circumstances is 
to be curtailed, the least one has a right to expect is rea­
sonable notice in the ordinance under which convictions 
are obtained, to that effect. Here, absent a statutory pro­
vision that the person giving the “warning” have authority 
to do so, and that he be required to communicate that 
authority to the person asked to leave, petitioners were 
convicted on records barren of evidence that such authori­
tative notice was given. In effect they have been convicted 
of crime for refusing to cease their protests at the request 
of persons, who for all the records show, were strangers



34

at the time. The stifling effect of such a rule on free speech 
is obvious; under the Fourteenth Amendment, therefore, 
these convictions are doubly defective in curtailing First 
Amendment rights. See Wieman v. TJpdegraff, 344 U.S. 183; 
Smith v. California, 361 U.S. 147.

W h e r e fo r e , f o r  th e  fo r e g o in g  re a s o n s ,  i t  is  r e s p e c tfu l ly  
s u b m it te d  t h a t  th e  p e t i t io n  f o r  w r i t  o f c e r t i o r a r i  sh o u ld  be 
g r a n te d .

Respectfully submitted,

J ack  Gr een berg  
C o n sta n ce  B a ker  M otley  
10 Columbus Circle 
New York 19, N. Y.
A r t h u r  D . S h o res  
1527 Fifth Avenue, North 
Birmingham, Alabama
P et e r  A . H all 
O r zell  B il l in g s l e y , J r. 
O scar W. A dam s, J r.
J .  R ic h m o n d  P earson

L eroy D . C lark  
M ic h a e l  M eltsn er  
J am es M. N abrit , III 

Of Counsel



APPEN DIX



Judgm ent Entry in  G ober Case

At a regular, adjourned, or special session of 
the Tenth Judicial Circuit of Alabama . . .

T h e  S tate 

C it y  oe B ir m in g h a m

-vs.-

J am es G ober

Appealed from Recorder’s Court 
(Trespass After Warning)

H onorable G eo . L e w is  B a iles , Judge Presiding
This the 10th day of October, 1960, came Wm. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in 
this cause, and the defendant being duly arraigned upon 
said Complaint for this plea thereto says that he is not 
guilty; and defendant files motion to strike, and said mo­
tion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same 
is hereby overruled, to which action of the Court in over­
ruling said motion the defendant hereby duly and legally 
excepts; and the defendant files demurrers, and said 
demurrers being considered by the Court, it is ordered 
and adjudged by the Court that said demurrers be and 
the same are hereby overruled, to which action of the 
Court in overruling said demurrers the defendant hereby 
duly and legally excepts; and the defendant files motion 
to exclude the evidence, and said motion being considered



2a

Judgment Entry in Gober Case

by the Court, it is ordered and adjudged by the Court 
that said motion be and the same is hereby overruled, to 
which action of the Court in overruling said motion, the 
defendant hereby duly and legally excepts; and on this 
the 11th day of October, 1960, the Court finds the defen­
dant guilty as charged in the Complaint and thereupon 
assessed a fine of One Hundred ($100,00) dollars and 
costs against said defendant. It is therefore considered 
by the Court, and it is the judgment of the Court that 
said defendant is guilty as charged in said Complaint, 
and that he pay a fine of One Hundred ($100.00) dollars 
and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $100.00 and the costs 
of $5.00 accrued in the Recorder’s Court of the City of 
Birmingham, or to confess judgment with good and suf­
ficient security for the same, it is therefore considered by 
the Court, and it is ordered and adjudged by the Court, 
and it is the sentence of the Law, that the defendant, the 
said James Gober, perform hard labor for the City of 
Birmingham for fifty-two days, because of his failure to 
pay said fine and costs of $5.00 accrued in said Recorder’s 
Court, or to confess judgment with good and sufficient 
security therefor.

It is further considered by the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law, that the defendant, the said James Gober, perform 
additional hard labor for the City of Birmingham for 
thirty days, as additional punishment in this cause.

And the costs legally taxable against the defendant in this 
cause amounting to forty-eight and 75/100 ($48.75) dollars, 
not being presently paid or secured, and $4.00 of said 
amount being State Trial Tax, $3.00, and Law Library



3a

Judgment Entry in Gober Case

Tax, $1.00, leaving forty-four and 75/100 ($44.75) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for sixty days, at the rate of 75 cents per day to pay 
said costs. It is further ordered by the Court that after 
the sentence for the City of Birmingham has expired, that 
the City authorities return the defendant to the County 
authorities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while 
in jail, for which let execution issue.

And on this the 11th day of October, 1960, the defendant 
files motion for a new trial in this cause, and said, motion 
coming on to be heard and determined by the Court, it is 
ordered by the Court, and it is the judgment of the Court 
that said motion be and the same is hereby overruled.

And notice of appeal being given, and it appearing to 
the Court that, upon the trial of this cause, certain ques­
tions of Law were reserved by the defendant for the con­
sideration of the Court of Appeals of Alabama, it is 
ordered by the Court that the execution of the sentence 
in this cause be and the same is hereby suspended until 
the decision of this cause by said Court of Appeals of 
Alabama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.



4a

Opinion of Harwood, Presiding Judge

T h e  S tate op A labama— J u d icia l  D epa r t m e n t

THE ALABAMA COURT OF APPEALS
October Term, 1960-61 

6 Div. 797

J a m es  G ober

—v.-

C it y  op  B ir m in g h a m

APPEAL PROM JEFFERSON CIRCUIT COURT

H arwood, Presiding Judge

This appellant was first convicted in the Recorder’s 
Court of the City of Birmingham for violating Section 
1436 of the City Code of Birmingham, Alabama, 1944.

Section 1436, supra, is as follows:
“Sec. 1436, After Warning. Any person who enters 

into the dwelling house, or goes or remains on the 
premises of another, after being warned not to do so, 
shall, on conviction, be punished as provided in Section 
4, provided, that this Section shall not apply to police 
officers in the discharge of official duties.”

On his conviction in the Recorder’s Court, the appellant 
perfected an appeal to the Circuit Court of Jefferson 
County, where he was again adjudged guilty, and punish­
ment was imposed.



5a

Opinion of Harwood, Presiding Judge

The complaint filed in the Circuit Court reads:
“Comes the City of Birmingham, Alabama, a munic­

ipal corporation, and complains that James Gober, 
within twelve months before the beginning of this 
prosecution and within the City of Birmingham or the 
police jurisdiction thereof, did go or remain on the 
premises of another, said premises being the area used 
for eating, drinking, and dining purposes and located 
within the building commonly and customarily known 
as Pizitz Department Store, located at 1821 2nd Avenue, 
North, Birmingham, Alabama, after being warned not 
to do so, contrary to and in violation of Section 1436 
of the General City Code of Birmingham of 1944.”

The evidence presented by the City in the trial below 
tends to show that this appellant, together with one James 
Davis, went to the cafeteria or lunch room in the Pizitz 
store and seated themselves at a table. According to the 
appellant, they could not obtain service from the waitresses.

Shortly, Dick Pizitz, assistant to the President of Pizitz, 
arrived and asked the appellant and Davis to leave, and 
told them they could be served downstairs. The appellant 
and Davis refused to leave. Either the appellant or Davis, 
upon refusing to leave, suggested that the police be called.

In response to instructions from a superior officer, a 
police officer of the City of Birmingham went to the 
restaurant. He found the appellant and Davis still seated 
at a table, and placed both under arrest.

This being an appeal from a conviction for violating a 
city ordinance, it is quasi criminal in nature, and subject 
to rules governing civil appeals. Accordingly we will limit 
our review to errors assigned and argued in appellant’s 
brief. Fiorella v. City of Birmingham, 35 Ala. App. 384,



6a

Opinion of Harwood, Presiding Judge

48 So. 2d 761; cert. den. 254 Ala, 515, 48 So. 2d 768; 
cert, den, 71 S. Ct. 506, 340 IT. S. 942, 95 L. Ed. 680; 
Ellis v. City of Sylacauga, 36 Ala. App. 687, 63 So. 2d 33; 
Parks v. City of Montgomery, 38 Ala. App. 681, 92 So. 
2d 683.

In the proceedings below the appellant filed a motion 
to strike the complaint, which motion was overruled. This 
ruling is asserted as error in Assignment of Error No. 1.

A motion to strike is not the proper method of testing 
the sufficiency of a complaint. Taylor v. City of Birming­
ham, 35 Ala. App. 133, 45 So. 2d 53; Byrum v. Pharo, 240 
Ala. 564, 200 So. 622. Assignment of Error No. 1 is there­
fore without merit.

Appellant’s Assignment of Error No. 2 avers that the 
court erred in overruling his demurrer to the complaint.

Ground 1 of the demurrer asserts that the complaint 
does not charge the defendant with any offense under the 
laws or Constitution of the State of Alabama; Ground 2, 
that the complaint is insufficient to support a prosecution 
in that no offense is charged corrigible by the court; 
Ground 3, that the complaint is so vague and uncertain 
as to not apprise the defendant of what he is called upon 
to defend.

Pretermitting other possible defects, it is clear that all 
of the grounds are general in nature, and in no wise point 
out any specific defect in the complaint.

For this reason alone the lower court was justified in 
refusing to examine the complaint for defects therein, and 
could properly overrule the demurrer, Oliveri v. State, 
13 Ala. App. 348, 69 So. 357, and a trial court will not be 
put in error for overruling a demurrer based on general 
grounds which are not sufficiently specific to point out an 
alleged defect in the pleading. Cabiness v. City of Tusca-



7a

Opinion of Harwood, Presiding Judge

loosa, 39 Ala. App. 538, 104 So. 778; Sarber v. Hollon, 
265 Ala. 323, 91 So. 2d 229.

In brief counsel for appellant argues that the complaint 
is insufficient in not setting forth by whom the appellant 
was warned to leave the premises.

No ground of the demurrer raised this point in the 
court below. Even if the complaint be defective in this 
regard, a premise we do not accept, the defect was amend­
able. Sec. 238, Tit. 7, Code of Alabama 1940, provides:

“Either before or after judgment on demurrer, 
the court must permit an amendment of the plead­
ings ; * * * ”

This section is broad and comprehends all pleadings 
except indictments, and authorizes amendment of com­
plaints in prosecutions for violation of city ordinances, 
as though it were a complaint in a civil action. Thomas 
v. State, 58 Ala. 365.

The alleged defect not having been in any wise raised 
in the court below, and not pointed out by demurrer, is 
not available on appeal, and will not be considered. Mc- 
Elhaney v. Singleton, 270 Ala. 162, 117 So. 2d 376; Camp­
bell v. Jackson, 257 Ala. 618, 60 So. 2d 252.

Grounds 4, 5, 6 , 7 and 8 assert the invalidity of the 
ordinance (Sec. 1436, supra) on various constitutional 
grounds, as applied to this defendant. (Italics ours.) No 
unconstitutional application of the ordinance to this defen­
dant appears from any of the pleading. Such unconstitu­
tional application would be a matter of evidence. These 
grounds, setting up a speaking demurrer, necessitated an 
overruling of the demurrer in this aspect. Brown v. City of 
Fairhope, 265 Ala. 596, 93 So. 2d 419; Kolas v. McMahon, 
36 Ala. App. 238, 54 So. 2d 322; United States Fidelity



8a

Opinion of Harwood, Presiding Judge

and Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 
So. 953.

Appellant’s Assignments of Error numbers 3 and 4, 
respectively, are to the effect that the lower court erred in 
overruling appellant’s motion to exclude the evidence, and 
in overruling appellant’s motion for a new trial. Counsel 
has made no attempt to separate these assignments for 
argument in brief, and we will treat them jointly, though 
we wish to observe that the grounds supporting the motion 
to exclude the evidence are faulty in several aspects, partic­
ularly in setting forth erroneous legal principles as their 
bases. All grounds specified in support of the motion were 
defective, and the court properly overruled the motion.

Counsel has argued among other matters, various phases 
of constitutional law, particularly as affected by the Four­
teenth Amendment of the Federal Constitution, such as 
freedom of speech, in regard to which counsel state: “What 
has become known as a ‘sit-in’ is a different, but well un­
derstood symbol, meaningful method of communication.” 
Counsel has also referred to cases pertaining to restrictive 
covenants. We consider such principles entirely inap­
plicable to the present case.

Counsel also state in brief that “ * * * The prosecution 
adduced no evidence to prove that they had no such con­
stitutional right * * * ” that is, to remain in the restaurant 
after having been requested to leave. In this, counsel are 
under a misapprehension as to the burden to be carried 
by the defense. The City having presented evidence tend­
ing to show that the appellant remained upon private 
premises after having been warned by an officer of the 
company owner to leave, it was under no burden to go 
further and offer evidence that the appellant’s act was 
done without lawful excuse. This was defensive matter,



9a

Opinion of Harwood, Presiding Judge

the proof of which rested upon the appellant unless the 
evidence which proved the act also proved the excuse. 
Owens v. State, 74 Ala. 401.

As we interpret the argument of counsel for appellant, 
its tenor may well be illustrated by the following quota­
tions from the brief:

“Due process and equal protection demand that a 
Negro be accorded the right to sit at eating counters 
of privately owned businesses, if he has been a cus­
tomer in other departments of the store.

“That the premises were privately owned should not 
detract from the high constitutional position which 
such free expression deserves.”

We know of no warrant in law validating the principles 
asserted by counsel.

As aptly stated in Browder v. Gayle, 142 F. Supp. 707:
“In their private affairs, in the conduct of their 

private businesses, it is clear that the people them­
selves have the liberty to select their own associates 
and the persons with whom they will do business, un­
impaired by the Fourteenth Amendment. The Civil 
Rights Cases, 109 U. S. 33 S. Ct. 18, 27 L. Ed. 835. 
Indeed we think that such liberty is guaranteed by the 
due process of that Amendment.”

Even so, there is no question presented in the record 
before us, by the pleading, of any statute or ordinance 
requiring the separation of the races in restaurants. The 
prosecution was for a criminal trespass on private prop­
erty.



10a

Opinion of Harwood, Presiding Judge

The Pizitz Department Store is a private business—a 
private enterprise. It has no connection with any govern­
mental agency, federal, State, County or city.

The appellant entered upon the privately owned and 
operated premises of the store as a licensee by implied 
invitation. He had no interest in the premises. While a 
distinction exists between a licensee and an invitee insofar 
as liability for negligence on the part of the owner of the 
premises is concerned, the principles governing appel­
lant’s conduct in the present consideration must be gov­
erned by the rules pertaining to licensees, for in general, 
that is the position he occupied even though on the prem­
ises by an implied invitation.

The Pizitz store, being the owner of its premises, had 
a full right to limit the use of its own premises as it saw 
fit.

By its own choice it could limit the use of any part of 
its premises. It exercised this right to limit the use of 
its restaurant.

In the absence of statute, a restaurant owner may ac­
cept or reject customers on purely personal choice. Nance 
v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773; Noble 
v. Higgins, 158 N. Y. S. 867, 95 Misc. 328.

The right to operate a restaurant on its own premises 
under such conditions as it saw fit to impose was an in­
alienable property right possessed by the Pizitz store. 
The appellant would destroy this property right by at­
tempting to misapply the Fourteenth Amendment, ignoring 
the provision in that Amendment that grants the right to 
a private property owner to the full use of his property, 
that is: “Nor shall any state deprive any person of life, 
liberty, or property, without due process of law.” (Italics 
ours.)



11a

Opinion of Harwood, Presiding Judge

As stated in Williams v. Howard Johnson Restaurant 
(C. C. A. 4), 368 Fed. 2d 845, there is an “important dis­
tinction between activities that are required by the State 
and those which are carried out by voluntary choice and 
without compulsion by the people of the State in accord­
ance with their own desires and social practices.”

It is fundamental, and requires no citation of authority, 
that the grantor of a license, which has not become coupled 
with an interest, may revoke the license at will.

When the appellant was requested to leave the restau­
rant by an official of the Pizitz store, and refused to leave, 
his status as an invited licensee was destroyed, and he 
was thereafter on the premises as a trespasser. As stated 
in Martin v. City of Struthers, 319 U. S. 147, 63 S. Ct. 
862, 87 L. Ed. 1313:

“Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.”

Boynton v. Virginia, 81 S. Ct. 132, relied on by the ap­
pellant, was decided on the basis of the Federal Interstate 
Commerce Act, and is to the effect that said act prohibits 
the exclusion of Negroes from restaurants operated or 
controlled by an interstate carrier as a part of its busi­
ness. This doctrine cannot be said to create a constitu­
tional right to trespass on private property, regardless of 
race.

Likewise, we find the doctrine of Marsh v. State of Ala­
bama, 326 U. S. 501, 90 L. Ed. 265, inapplicable to the 
present case. The Marsh case, supra, concerned the right 
to distribute religious pamphlets on the sidewalk of a 
company owned town. As stated by the court, this town



12a

Opinion of Harwood, Presiding Judge

though owned by a company, had “all the characteristics 
of any other American town” insofar as municipal func­
tions were concerned, and therefore should he subjected 
to constitutional limitations imposed on regular public 
municipalities. Here we are concerned with a private 
owner in the use of his private property.

We find no merit in appellant’s Assignments numbers 
3 and 4.

Assignment of Error number 5 relates to a ruling con­
cerning the admission of certain evidence. Counsel has 
not argued this assignment in brief, and pretermit con­
sideration thereof.

A f f ir m e d .



13a

Order of Affirmance in Gober Case

T h e  S tate of A labama— J ud icia l  D epa r t m e n t  

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 797

J a m es  G ober 

C it y  oe B ir m in g h a m

APPEAL FROM JEFFERSON CIRCUIT COURT

November 2, 1960 
Ce r t ific a t e  F iled

January 30, 1961 
T r a n sc r ipt  F iled

April 18, 1961
Come the parties by attorneys, and argue and submit 

this cause for decision.
May 30, 1961

Come the parties by attorneys, and the record and 
matters therein assigned for errors, being submitted on 
briefs and duly examined and understood by the court, 
it is considered that in the record and proceedings of the 
Circuit Court there is no error. It is therefore considered 
that the judgment of the Circuit Court be in all things 
affirmed. It is also considered that the appellant pay the 
costs of appeal of this court and of the Circuit Court.



14a

Order Denying Application for Rehearing 
in Gober Case

T h e  S tate of A labama— J u d icia l  D epa r t m e n t  

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 797

J am es G ober

—v.—

C ity  of B ir m in g h a m

APPEAL FROM JEFFERSON CIRCUIT COURT

June 14, 1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant Appel­
lant a rehearing in said cause, and to reverse, revise and 
hold for naught its Judgment rendered on, to-wit, the 
30th day of May, 1961, and affirming the Judgment of the 
Circuit Court of Jefferson County, Alabama, and to enter 
an Order, reversing said Judgment.

A r t h u r  D . S h o res  
O rzell  B il l in g s l e y , J r. 
P eter  A . H all 
O scar W . A dam s, J r.
J. R ic h m o n d  P earson  

Attorneys for Appellant
June 20, 1961

It is ordered that the application for rehearing be and 
the same is hereby overruled. Per Curiam.



1 5 a

Order Denying Petition for Writ of Certiorari 
to the Court of Appeals in Gober Case

THE SUPREME COURT OF ALABAMA
Thursday, September 14, 1961

T h e  C ourt M et  in  S pecia l  S essio n  P u rsu a n t  
to A d jo u r n m e n t

Present: All the Justices
6th Div. 762

Ex P arte : J am es G ober 

(R e : J am es G ober

Petitioner

— v s.—

C ity  of  B ir m in g h a m )

JEFFERSON CIRCUIT COURT
Comes the Petitioner in the above styled cause and the 

Petition for Writ of Certiorari to the Court of Appeals 
being Submitted on Briefs and duly examined and under­
stood by the Court,

I t Is O rdered that the Writ of Certiorari be and the 
same is hereby denied and the petition dismissed at the 
cost of the petitioner for which cost let execution issue.

L iv in g st o n , C.J., S im p s o n , G oodwyn a n d  C o lem a n , JJ.,
Concur



16a

Order Denying Rehearing in Gober Case

THE SUPREME COURT OF ALABAMA 
Thursday, November 2,1961 

T he  C ourt M et  P u r su a n t  to A d jo u r n m e n t  

Present: All the Justices 
6 th Div. 762

E x  P arte : J a m es  G ober

Petitioner
(R e : J am es G ober 

—vs.—<

C it y  of B ir m in g h a m )

JEFFERSON CIRCUIT COURT

I t I s H ereby  O rdered that the application for rehearing 
filed in the above cause by the petitioner on September 28, 
1961, be and the same is hereby overruled.

(L iv in g st o n , C.J., S im p s o n  a n d  C o lem a n , JJ., c o n c u r .)



17a

Judgment Entry in Roosevelt Westmoreland Case*

At a regular, adjourned, or special session of 
the Tenth Judicial Circuit of Alabama . . .

T h e  S tate 

C it y  oe B ir m in g h a m :

—vs.—

R oosevelt W estm oreland

Appealed from Recorder’s Court 
(Trespass After Warning)

H onorable G eo . L e w is  B a iles , Judge Presiding
This the 10th day of October, 1960, came Wm. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in 
this cause, and the defendant being duly arraigned upon 
said Complaint for his plea thereto says that he is not 
guilty; and defendant files motion to strike, and said 
motion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same 
is hereby overruled, to which action of the Court in over­
ruling said motion the defendant hereby duly and legally 
excepts; and the defendant files demurrers, and said de-

* The Judgment Entry, Order of Affirmance, Order Denying 
Rehearing Order Denying Petition for Writ of Certiorari, and 
Order Defying Rehearing of Petition for Writ of Certiorari are 
without material difference in all of the other cases except Oooer, 
as to which see pp. la  to 16a supra.



18a

Judgment Entry in Roosevelt Westmoreland Case

murrers being considered by the Court, it is ordered and 
adjudged by the Court that said demurrers be and the 
same are hereby overruled, to which action of the Court 
in overruling said demurrers the defendant hereby duly 
and legally excepts; and the defendant files motion to ex­
clude the evidence, and said motion being considered by 
the Court, it is ordered and adjudged by the Court that 
said motion be and the same is hereby overruled, to which 
action of the Court in overruling said motion, the defen­
dant hereby duly and legally excepts; and on this the 11th 
day of October, 1960, the. Court finds the defendant guilty 
as charged in the Complaint and thereupon assessed a fine 
of One Hundred ($100.00) dollars and costs against said 
defendant. It is therefore considered by the Court, and it 
is the judgment of the Court that said defendant is guilty 
as charged in said Complaint, and that he pay a fine of 
One Hundred ($100.00) dollars and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $100.00 and the costs of 
$5.00 accrued in the Recorder’s Court of the City of Bir­
mingham, or to confess judgment with good and sufficient 
security for the same, it is therefore considered by the 
Court, and it is ordered and adjudged by the Court, and 
it is the sentence of the Law, that the defendant, the said 
Roosevelt Westmoreland, perform hard labor for the City 
of Birmingham for fifty-two days, because of his failure 
to pay said fine and costs of $5.00 accrued in said Re­
corder’s Court, or to confess judgment with good and suf­
ficient security therefor.

It is further considered by the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law, that the defendant, the said Roosevelt Westmoreland, 
perform additional hard labor for the City of Birmingham



19a

Judgment Entry in Roosevelt Westmoreland Case

for thirty days, as additional punishment in this cause.
And the costs legally taxable against the defendant in 

this cause amounting to fifty-two and 55/100 ($52.55) 
dollars, not being presently paid or secured, and $4.00 of 
said amount being State Trial Tax, $3.00, and Law Library 
Tax, $1.00, leaving forty-eight and 55/100 ($48.55) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for sixty-five days, at the rate of 75  ̂ per day to pay said 
costs. It is further ordered by the Court that after the 
sentence for the City of Birmingham has expired, that the 
City authorities return the defendant to the County au­
thorities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while 
in jail, for which let execution issue.

And on this the 11th day of October, 1960, the defendant 
files motion for a new trial in this cause, and said motion 
coming on to be heard and determined by the Court, it is 
ordered by the Court, and it is the judgment of the Court 
that said motion be and the same is hereby overruled.

And notice of appeal being given, and it appearing to 
the Court that, upon the trial of this cause, certain ques­
tions of Law were reserved by the defendant for the con­
sideration of the Court of Appeals of Alabama, it is 
ordered by the Court that the execution of the sentence in 
this cause be and the same is hereby suspended until the 
decision of this cause by said Court of Appeals of Ala­
bama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.



20a

Order of Affirmance in Roosevelt Westmoreland Case*

T h e  S tate  o f  A labama— J u d icia l  D e pa r t m e n t  

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 805

R oosevelt W estm oreland

C it y  o f  B ir m in g h a m

APPEAL FROM JEFFERSON CIRCUIT COURT

November 2, 1960 
Ce r t ific a t e  F iled

January 30, 1961 
T r a n sc r ipt  F iled

April 18, 1961
Come the parties by attorneys, and argue and submit 

this cause for decision.
May 30, 1961

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is 
considered that in the record and proceedings of the Cir­
cuit Court, there is no error. It is therefore considered 
that the judgment of the Circuit Court be in all things 
affirmed, on authority of Gober v. City of Birmingham, 
6th Division 797, Ala. App. Ms. It is also considered that 
the appellant pay the costs of appeal of this court and of 
the Circuit Court.

See note p. 17a, supra.



21a

Order Denying Rehearing in  
Roosevelt Westmoreland Case*

T he S tate  of A labama— J u d icial  D epa r t m e n t  

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 805

R oosevelt W estm oreland  

C it y  o f  B ib m in g h a m

APPEAL FEOM JEFFERSON CIRCUIT COURT

June 14, 1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on, to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an 
Order, reversing said Judgment.

A r t h u r  D . S hores 
O rzell  B il l in g sl e y , J r. 
P eter  A . H all 
O scar W . A dams, J r.
J .  R ic h m o n d  P earson 
Attorneys for Appellant

June 20, 1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Per Curiam.

* See note p. 17a, supra.



22a

Order Denying Petition for Writ of Certiorari in 
Roosevelt Westmoreland Case*

THE SUPREME COURT OF ALABAMA
Thursday, September 14, 1961

T h e  C ourt M et  in  S pe c ia l  S essio n  P u r su a n t  
to A d jo u r n m e n t

Present: All the Justices
6th Div. 753

E x  P arte : R oosevelt W estm oreland

Petitioner

(R e : R oosevelt W estm oreland

—vs.—-

C ity  of  B ir m in g h a m )

JEFFERSON CIRCUIT COURT
Comes the Petitioner in the above styled cause and the 

Petition for Writ of Certiorari to the Court of Appeals 
being Submitted on Briefs and duly examined and under­
stood by the Court,

I t I s O rdered that the Writ of Certiorari be and the 
the same is hereby denied and the petition dismissed at 
the cost of the petitioner for which cost let execution issue.

L ivingston, C.J., Simpson, Goodwyn and Coleman, JJ.,
Concur

* See note p. 17a, supra.



23a

Order Denying Rehearing in 
Roosevelt Westmoreland Case*

THE SUPREME COURT OF ALABAMA 
Thursday, November 2,1961 

T h e  C ourt  M et  P u r su a n t  to A d jo u r n m e n t  

Present: All the Justices 
6th Div. 753

Ex P arte : R oosevelt W estm oreland

Petitioner

(R e : R oosevelt W estm oreland  

— v s .—

C it y  of B ir m in g h a m )

JEFFERSON CIRCUIT COURT
I t I s H ereby  O rdered that the application for rehearing 

filed in the above cause by the petitioner on September 28, 
1961, be and the same is hereby overruled.
(L iv in g sto n , C.J., S im p s o n  a n d  C o lem a n , JJ., c o n c u r .)

See note p. 17a, supra.



; i Cs} l i OV HUTCH if! SOM
! 9 } • ; :

■ d  : u  >■*>r\ orrpr p s f: V'
1 la ID, JESSIE WALKER and WILLIE J. Wi US, 

Pet; Conors,
vs.

CITY OF B I R M I N G H A M ,  
Respondent. .

BRIEF
On Behalf of Respondent to Petition  

for W rit  of Certiorari.

WATTS E. DAVIS,
WILLIAM C. WALKER,
EARL McBEE,

600 City Hall Building, 
Birmingham, Alabama, 

Attorneys for Respondent.



INDEX.
Pago

Questions presented for review ..................... ...........  1

Statement in opposition to constitutional and statu­
tory provisions involved ........................................... 3

Statement in opposition to jurisdiction of the court 3
Statement ............................................................    4
Facts in common.......................................................... 7
How Federal questions were raised and decided below 8i
Argument . .......................................................    9

Re: Lack of jurisdiction of the cou rt.........................  9
Re: Questions presented for review ..........................  11

Cases Cited.

Browder v. Gayle, 142 F. Supp. 707 . ...........................  14
Campbell v. Jackson, 257 Ala. 618, 60 So. 2d 252 ......... 12

Dudley Brothers Lumber Co. v. Long, 109 So. 2d 684,
268 Ala. 565 ................................................................  17,

Garner v. State of Louisiana, 82 S. Ct. 248
(1961) .............................................................11,14,18,19

Gilbert v. Mathews, 1960, 352 P. 2d 58, 186 Kan. 672 16
Lambert v. People of State of California, Cal. 1957, 78 

S. Ct. 240, 355 II. S. 255, 2 L. Ed. 2d 228, rehearing 
denied 78 S. Ct. 410, 355 IT. S. 937, 2 L. Ed. 2d 419.. 15

Local No. 8 -6 , Oil, Chemical and Atomic Workers 
International Union, AFL-CIO, v, Missouri, 805
S. Ct, 391, 361 U. S. 363, 4 L. Ed. 2d 373 .................. 12

Martin v. Struthers, 319 U. S. 147, 63 S. Ct. 862, 87
L. Ed. 1313 ................................................................  14

Mazer v. Brown, 66 So. 2d 563, 259 Ala. 449 ....... . 17



11

Smith v. State, 136 So. 270, 271, 223 Ala. 346 ............. 16
Standard Oil Co. v. City of Marysville, Kan., 1929, 49 

S. Ct. 430, 279 U. S. 582, 73 L. Ed. 856, rehearing 
denied 50 S. Ct. 79, motion denied 51 S. Ct. 38, 282 
U. S. 797, 75 L. Ed. 718................ .............................  16

The Civil Rights Cases, 109 U. S. 3, 3 S. Ct. 18, 27 
L. Ed. 835 ................................................................... 13

Statutes and Rules Cited.
Code of Alabama, Title 7, Section 225 ........................  12
General City Code of Birmingham, Section 369

(1944) ...................................................................... ...3,11
28 U. S. C. A., Supreme Court Rule 21 (1) ..................3,10
28 U. S. C. A., Supreme Court Rule 24 (2) ..................  10
28 U. S. C, A., Supreme Court Rule 33 (1)...................3,10

i



SUPREME COURT OF THE UNITED STATES,

O CTO B ER  T ER M , 1961.

No. 694 .

JAMES GOBER, JAMES ALBERT DAVIS, ROY HUTCHINSON, 
R O B ER T  J. KING, ROBERT PARKER, WILLIAM WEST, 

R O B ER T  D. SANDERS, ROOSEVELT WESTMORE­
LAND, JESSIE WALKER and WILLIE J. WILLIS, 

Petitioners,
vs.

C IT Y  OF BIRMINGHAM,  
Respondent.

BRIEF
On Behalf of Respondent to Petition 

for Writ of Certiorari.

QUESTIONS PRESENTED FOR REVIEW.

Your respondent is not satisfied with the statement con­
tained in the petition for writ of certiorari (pp. 2, 3)* 
setting forth the questions presented for review by this 
Court.

* Page references contained herein and preceded by the letter “p” 
designate pages in petitioners’ Petitions for Writ of Certiorari,



Respondent submits that question number 1 of the peti­
tion is not properly before the Court for consideration. 
The question has to do with a city ordinance separate and 
apart from the ordinance under which petitioners were 
charged below. No ordinance fitting the description of 
the one referred to in question number 2 , having to do 
with segregation in eating facilities, was ever injected into 
the trial below, either by pleadings or by proof, or by any 
identification whatever.

Question number 2, having to do with whether Negroes 
may be excluded from eating areas in stores while being 
served elsewhere in the stores, involves no constitutional 
or federal question, unless the petitioners’ question be 
predicated upon the state or its agency exercising the 
privilege of exclusion on the premises.

Question number 3, which is hypothecated on the sup­
position that petitioners were “ convicted of trespass for 
seeking nonsegregated food service at white-only dining 
areas”, completely evades the trespass ordinance under 
which the petitioners were in fact charged and convicted.

The question further asserts the “ convictions” were 
upon “ records barren of evidence that any person making 
the requests to leave identified his authority to make the 
requests ’ ’.

The question of whether the person making the request 
to leave identify his authority to do so is one involving 
purely the scope a state or local law as to whether the 
identification is required, and is not a federal question.

Question number 4, which petitioners present for re­
view, dealing with the assumed failure of the managers to 
phone the police and demand prosecution, does not present 
a constitutional or federal question, but seeks only a ie- 
view of local procedural law.



— 3 —

STATEMENT IN OPPOSITION TO CONSTITUTIONAL 
AND STATUTORY PROVISIONS INVOLVED.

This case does not involve Section 369 (1944) oi the 
General City Code of Birmingham, as proposed in Petition 
for Writ (pp. 3, 4).

This section of the city code is here raised for the first 
time, has not been a matter for review in any of the state 
courts, and therefore is not properly includable in the 
petition as an ordinance for consideration by the court.

STATEMENT IN OPPOSITION TO 
JURISDICTION OF THE COURT.

I.

Counsel for petitioners has failed to notify the respond­
ent or respondent’s counsel of record, either on a form 
supplied by the Clerk of the Court or otherwise, of the 
date of filing of the petition for certiorari in this case, 
or of the docket number of the case, or of the filing of the 
record with the Court as required by supreme court 
rules. Supreme Court Rule 21 (1), 28 U. S. C. A., Supreme 
Court Rule 33 (1), 28 U. S. C. A.

IT.

That petitioners have not been deprived of rights, privi­
leges, or immunities secured by the Constitution of the 
United States.

III.

If, in fact, there be any jurisdiction in this Court in this 
cause, it is confined to the state appellate courts rulings 
on assignments of errors 3 and 4, having to do with mo-



— 4 —

tions to exclude the evidence and motions for new trial, 
respectively, both of which motions were identical in lan­
guage in each case below, except with reference to desig­
nating the respective stores involved.

Assignments of error 1 and 2, having to do with the 
overruling bv the court of first instance ot motions to 
strike the complaints and demurrers to the complaints, 
were decided upon adequate and independent state grounds 
as opposed to federal grounds.

STATEMENT.
As set forth in petitioners’ statement (p. 5), the peti­

tioners were all convicted below for having trespassed 
after warning in violation of a city code provision (Sec. 
1436).

While a great portion of the record in each of the cases 
is consumed with details concerning the respective peti­
tioners going upon the premises of the various department 
stores, the gravamen of the offense charged in each in­
stance was that the petitioners remained on the premises 
described in the respective complaints after being warned 
not to do so.

Gober and Davis:
City witness Gottlinger, Controller for Pizitz Depart­

ment Store, testified he heard the assistant to the presi­
dent of the store, while conversing with the two petition­
ers, Gober and Davis, ask the petitioners to leave the tea 
room and told them they could be served in the Negro 
restaurant in the basement (Gober 20, Davis 22); that 
the petitioners did not leave, but remained until the offi­
cers arrived (ibid).

Police Officer Pearce testified (Gober 39, Davis 40), with 
reference to a conversation he had with Davis and Gober



the (lav following their arrest, “ they (the petitioners) said 
they were instructed to go into the store and sit down at 
a white lunch counter, and that they would probably be 
or would be asked to leave, and not to leave but to remain 
there until the police arrested them and took them out” .

Police Officer Martin (Gober 17-18, Davis 18-lb) was 
told by a superior officer to go to Pizitz Store because of 
a disturbance there. Upon arrival at Pizitz Store, there 
were people in the store talking to his superior officers, 
and he was ordered by his immediate superior to make 
the arrest.

The petitioners (Davis 43-44, Gober 44-45) did not 
bother to ask the identity of the person who told them 
to leave.

Hutchison and King:

Petitioners’ statement asserts that “ the only disturb­
ance, however, was that ‘ . . . the waiters left the floor’ ’’.

The record (King 28, Hutchison 28) shows a commotion 
was started by all the white patrons “ getting up and 
leaving the area” when the Negroes were seated.

On three occasions the store detective announced within 
three feet of the petitioners that the place was closed and 
asked that the people move, in addition to hanging up a 
sign stating the place was closed (Hutchison 2G, King
26).

Parker and West:
Mrs. Gibbs, store detective at Newberry’s (Parker 21, 

West 18), identified herself to the petitioners and ‘ told 
them they would have to leave” , and testified that peti­
tioners “ said they were not going to leave” (ibid).



— r> —

Mr. Stallings, assistant store manager (Parker 23, West 
20), told the petitioners, “ You know you can’t do this” ; 
that petitioners “ kept sitting there and said, ‘We have 
our rights’ ” (ibid).

Mrs. Gibbs further informed the petitioners (Parker 21, 
West 18) that they could be served on the fourth door, 
and on cross-examination stated that only colored people 
were served on the fourth floor (Parkei 22, W est 19).

Sanders and Westmoreland:
In this instance, the petitioners concede in their state­

ment (p. 1 1) that it was testified that “ the manager asked 
the petitioners to leave the store” (Sanders 20, Westmor­
land 17). Petitioners then state that on cross-examination 
(p. 1 1 ) the witness, who was manager of the luncheon 
counter, explained he had reference only to leaving that 
section” and that the store was not mentioned.

This latter assertion of petitioners is incorrect and out 
of context. The witness was asked, “ . • • what was the 
statement Mr. Braswell (store manager) made to these 
two hoys in your presence?” (Sanders 20, Westmoreland 
17). The answer was, “ He asked them to leave the stoie 
(ibid). On cross-examination the witness (lunch countei 
manager) was asked what he (the witness) told the boys. 
He stated he asked them to leave “ that section” . No 
part of the cross-examination at any time referred to the 
statement of the store manager demanding that the peti­
tioners leave the store,

However, this matter seems only academic and abstract, 
since the complaints filed by respondent dealt specifically 
with petitioners’ remaining “ on the premises of another, 
said premises being the area used for eating,  ̂ drinking 
and dining purposes and located within the building . . .  , 
designating each respective building (Sanders 2, West- 
moreland 2 ).



W alker and Willis:
Mrs. Evans, manager of the luncheon counter at Wool- 

worth, told the boys to leave, that the place was closed, 
and that she would not serve them (Walker 18, Willis 15). 
When the officer arrived, the lights over the luncheon 
counter were turned out and, “ Mrs. Evans was there wait­
ing for the officer” (Walker 17, Willis 14).

Mrs. Evans told the officer that she wanted them out of 
the store, though on cross-examination the words “ lunch­
eon counter” were substituted for the word “ store” .

FACTS IN COMMON.
Respondent takes this occasion to avail itself of the 

privilege of supplying certain corrections and additions 
to the petitioners’ statement under the above topical 
heading.

While the evidence, as stated by petitioners, does not 
in fact show that any of the officials of the various depart­
ment stores stated specifically to any of the petitioners 
that their official positions and capacities with the re­
spective stores carried specific authority, in writing or 
otherwise, to order persons off the promises, neither is it 
shown anywhere in the record that any of the store officials 
lacked such authority. In no instance did the petitioners 
ask for any credentials from the persons ordering them 
to leave, nor did any petitioner, as revealed by the recoid 
question in any manner the authority of the respectiv e 
officials to speak on behalf of the property owners.

While the record does not disclose who reported the 
behavior of the petitioners in the various stores involved, 
to the police, the record is conspicuously absent of any 
attempt on the part of petitioners to question any polico 
official or police records concerning the matter of who, 
in fact, reported the incidents to the police.



-—  8 — -

Petitioners’ conclusion that the management of the 
-various stores was prohibited by an existing city ordinance 
to serve Negroes was in no way raised by the pleadings 
in the trial court, nor is the ordinance anywhere set out 
in the record. No reference whatever was made to any 
such ordinance by way of assignment of error in the state 
appellate court.

The record shows no mention of any such ordinance was 
ever made at the time of the arrest of the respective peti­
tioners, or at any time thereafter.

HOW FEDERAL QUESTIONS WERE RAISED 
AND DECIDED BELOW.

Respondent wishes to call the Court’s attention to cer­
tain inaccuracies in petitioners’ statement under the above 
topical heading (pp. 14, 15) and to supply certain additions 
thereto as follows:

1. The motions to strike the complaint below did not 
contain the following ground as asserted by petitioners, 
namely, “ that section 1436 (city code) denied due process 
of law secured by the 14th amendment in that it was 
unconstitutionally vague by not requiring that the person 
making the demand to depart identify his authority.’’ 
(Emphasis supplied.)

2. No mention of the words “ identify’’ or “ authority’’, 
or words vaguely resembling; same, are to be found any­
where in the motions to strike, each of which motions is 
found on page 2 of the respective records.

Petitioners make the same assertion as to grounds con­
tained in their demurrers. Again, no such language is 
anywhere to be found in any of the grounds for the de­
murrers, which demurrers appear on pages 3 and 4 of the 
respective records.

i



3. The motions to strike and the demurrers were over­
ruled on independent state grounds rather than on any 
federal questions, as shown by opinion of state appellate 
court copied into the petition for writ (pp. 6a, 7a).

4 . No motion to exclude the evidence is shown by the 
record in the case of Roosevelt Westmoreland, conse­
quently, such a motion was not before the state courts.

5. None of the written motions to exclude the evidence 
in the court below, which were all in identical language, 
sought any relief. No prayer for any action on the part 
of the lower court was inserted in the motion. The motion 
to exclude the evidence moved for no action or relief from 
the court. The motions were, in fact, simply a documenta­
tion of supposed law and fact, and the court below had 
nothing before it upon which to afford any relief to the 
petitioners.

ARGUMENT.

Re: Lack of Jurisdiction of the Court.
Respondent insists the Court is without jurisdiction to 

entertain the “ petition for writ of certiorari” in this cause, 
for that the petition was not served upon either of the 
counsel of record for respondent, namely, Watts E. Davis 
or Bill Walker, later referred to as William C. Walker, 
whose names clearly appear upon the face of the title pages 
appearing in each of the respective records now before 
the Court in this cause as the only counsel of record.

The Gober case below is reported in 133 So. 2d 697. The 
other nine petitioners’ cases below immediately follow 
Gober and are reported in sequence. Each of these pub­
lished decisions, both in the Court of Appeals and the 
Supreme Court, shows “ Watts E. Davis and William C. 
Walker for Appellee.”

The proof of service, Form 75 (8-61-10M), as supplied 
by the Clerk and subsequently filed with the Clerk of this



— 10

Court, demonstrates clearly that notice of the filing of the 
petition, the record and proceedings and opinion of the 
Court of Appeals of Alabama and of the Supreme Court 
of Alabama, was served upon “ Hon. MacDonald Gallion, 
Mr. James M. Breckenridge.” Service of the notice, which 
is required by Supreme Court Rule 21 (1), 28 U. S. C. A.,' 
to be made as required by Supreme Court Rule 33 (1), 
28 IT. S. C. A.,2 was attempted to be accomplished by use 
of the mail. Supreme Court Rule 33 (1), 28 I T .  S. C. A., 
requires that service by mail shall be addressed to counsel 
of record (emphasis supplied) at his post office address, 
which, as shown supra, was not done in this case.

It is your respondent’s position that the petitioners’ 
failure to comply with the reasonable rules of this Court 
in the above regard, whether done through carelessness 
or indifference to the rules of this Court, leaves the re­
spondent without notice of the proceedings pending in 
this cause, as required by law, and that the Court is with­
out jurisdiction to proceed without the necessary parties 
to the writ before the Court, and that the petition for writ 
seeking certiorari should be dismissed or denied.

The rules of this Court, Supreme Court Rule 24 (2),:! 
28 U. S. C. A., do not provide for a separate motion to

1 The pertinent provision of Supreme Court Rule 21 (1) reads, 
“Review on writ of certiorari shall be sought by filing with the 
clerk, with proof of service as required by Rule 33. forty printed 
copies of a petition, . .

2 The pertinent provision of Supreme Court Rule 33 reads, 
“Whenever any pleading, motion, notice, brief or other document 
is required by these rules to be served, such service may be made 
personally or by mail on each adverse party. If personal, it shall 
consist of delivery, at the office of counsel of record, to cotinse, or 
a clerk therein. If by mail, it shall consist of depositing the same 
in a United States post office or mail box, with first class postage 
prepaid, addressed to counsel of record at his post office ad­
dress. . . .”

3 “No motion by a respondent to dismiss a petition for writ of 
certiorari will be received. Objections to the jurisdiction of the 
court to grant writs of certiorari may be included in briefs in 
opposition to petitions therefor.



dismiss a petition for writ of certiorari upon any grounds, 
and absent the remedy of any such motion, respondent 
prays that nothing contained in its reply brief shall be 
considered as a waiver of its question presented here to 
the jurisdiction of the Court,

ARGUMENT,

Re: Questions Presented for Review.

I.
Petitioners ask in their petition (p-2, paragraph 1) a 

determination of whether due process was denied them 
when they were arrested and convicted for a trespass, for 
failure to leave a dining area, where their exclusion was 
allegedly required by some other ordinance ordering “ seg­
regation in eating facilities’’.

The ordinance referred to by petitioners, allegedly re­
quiring segregation in eating establishments, is cited as 
appearing in the General City Code of Birmingham, in 
Section 369 (1944).

This question has not heretofore been injected into the 
case, either by pleadings or by proof below, or by assign­
ment of error or argument before the appellate courts of 
Alabama. The record will disclose that no identity of any 
such ordinance was ever suggested in the trial court, nor 
was any request made to the court to take judicial notice 
of any such ordinance. The complaint filed against the 
petitioners in the court of first instance was attacked by 
lengthy pleadings, none of which put in issue the existence 
of any such ordinance. The respondent was never afforded 
any opportunity or right of reply or challenge to same, 
or even the right to dispute same. As in Garner v. State 
of Louisiana, 82 S. Ct. 248 (1961), Mr. Chief Justice War­
ren, in delivering the opinion of the Court, stated: “ There



— 12 —

is nothing in the records to indicate that the trial judge 
did in fact take judicial notice of anything.”

The trial do novo in the County circuit court below, 
although quasi criminal, is tried as are other civil actions, 
and complaints are amendable as in civil actions. Camp­
bell v. Jackson, 257 Ala. 618, 60 So. 2d 252.

Code of Alabama, Title 7, section 225, says in part as 
follows: “ The defendant may plead more pleas than one 
without unnecessary repetition; and, if he does not rely 
solely on a denial of the plaintiff’s cause of action, 
must plead specially the matter of defense” . (Emphasis 
supplied.)

Assuming the existence of such an ordinance, petitioners 
did not seek to avail themselves of its benefits in any 
court below, and cannot avail themselves in this Court of 
some remedy not sought in the state courts. Such a con­
stitutional question as might be raised by the consideration 
now of the ordinance must be dealt with only as it is 
appropriately raised upon the record befoie this Court. 
Local No. 8-6, Oil, Chemical and Atomic Workers Inter­
national Union, AFL-CIO v. Missouri, 805 S. Ct. 391, 301 
U. S. 363, 4 L. Ed. 2d 373.

It should be noted that civil rules of appeal govern 
appeals from a conviction for violating a city ordinance 
to a state appellate court in Alabama, as noted in the opin­
ion below in this case, and as copied into the petition toi 
writ (p-5a), which opinion below cites numerous Alabama 
decisions in support of the rule and states: Accordingly, 
we will limit our review to errors assigned and argued in 
appellants’ (petitioners’) brief.”

The only function which judicial notice can serve is to 
dispense with proof, and it cannot serve to dispense with 
pleadings, as substantiated by the fact the rules relating to 
judicial notice are rules of evidence rather than rules of



pleadings. Since the alleged ordinance was not pleaded 
in the trial court and appears nowhere in the record be­
fore the state appellate courts, it is not appropriate to now 
raise the subject for the first, time in this Court.

IT.

Petitioners’ second question sought to be reviewed by 
this Court, poses the question of whether due process is 
denied when one is convicted of trespass for refusal to leave 
a whites-only dining area in a store, where he is served 
without discrimination elsewhere in the store.

This identical question is argued by petitioners (p. 2-1-27) 
under the topical heading of Reasons for Granting the Writ 
(p. 18), and respondent directs its argument here both to 
the question and to the argument in support of petitioners’ 
reason for granting the writ.

The argument of petitioners is basically encompassed 
within the statements that, “ We have here, therefore, the 
state racially rearranging by means of a trespass ordinance 
the customers within a single store’’ (p. 23); and, “ That 
private property may be involved hardly settles a claim 
that Fourteenth Amendment rights have been denied” 
(P- 24).

The Civil Rights Cases, 109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 
835, should clearly answer both contentions of the peti­
tioners, in stating, “ Individual invasion of individual 
rights is not the subject matter of the ( F o u r t e e n t h )  

Amendment.”

The trespass ordinance complained of by petitioners does 
no more, nor no less, than afford a right to an individual to 
warn persons to leave his premises for whatever purpose 
he may desire. If his warning is regarded by others as 
infringing upon their rights, their remedy is not in the



—  14 —

Fourteenth Amendment to the Constitution. The ordinance 
is simply a codification of a property right already afforded 
the property owner by the Fourteenth Amendment, and 
affords a simple and expeditious manner of enforcing this 
right. This Court aptly stated in Martin v. Struthers, 319 
U. S. 147, 63 S. Ct. 862, 87 L. Ed. 1313, that, “ Traditionally, 
the American law punishes those who enter onto the prop­
erty of another after having been warned to keep off” .

Mr. Justice Douglas emphasized in Garner v. State of 
Louisiana, 82 S. Ct. 248 (1961) that, “ So far as the Four­
teenth Amendment is concerned, individuals can be as 
prejudiced and intolerant as they like.”

The trespass ordinance might well be the subject of 
attack if it were available only for the protection of the 
property of one race or another, but petitioners do not urge 
that Negroes are not entitled to the availability of the 
benefits of the ordinance. Simply, petitioners say it should 
not be used by whites against members of the colored 
race, or perhaps vice versa.

As to rearranging a store racially by application of the 
ordinance, it appears to the respondent that this may be 
done, whether by prejudice or otherwise on the part of the 
store owner. Garner, supra. This proposition finds further 
support in Browder v. Gayle, 142 F. Supp. 707.

The department stores, while paying a license tax, were 
privately owned as opposed to being publicly owned oi 
financed by public funds. The state appellate couit held 
the stores to be “ a private business—a private enterprise 
(p. 10a).

III.

Petitioners seek review of question 3 (p. 3), which, in 
substance, asks whether due process was denied wheie

t



the record was “ barren of any evidence that any person 
making the request to leave identified his authority to 
make the request” .

The question presented is not whether the persons or­
dering the petitioners to leave actually had such authority, 
but, as stated in lead paragraph III of petition (p. 27) 
in a corollary statement of the question, whether the 
failure of the ordinance “ to specify that petitioners should 
have obeyed commands to depart given by persons who 
did not establish authority to issue such orders at the 
time given” , denied petitioners due process of law.

Petitioners are simply arguing that the ordinance should 
contain an additional provision requiring the person mak­
ing the order to leave identify his authority to make such 
order, and that the failure of the ordinance to so provide 
is violative of due process.

Such an argument, in effect, implies that the ordinance 
should provide a means whereby an arsonist, vandalist or 
trespasser must be confronted with a deed to the property, 
and that the validity of the deed must be substantiated 
before the ordinance could be free itself of a denial of 
due process, or in absence of a deed, to spell out the au­
thority for the command in some other fashion satisfactory 
to the trespasser or intruder.

The wisdom of adding such a provision to the trespass 
ordinance is certainly open to grave question, but the 
question of wisdom, propriety, or desirability is one for 
the legislative body of this city to concern itself with, and 
not one for this Court.

“ The principle that of all the powers of local govern­
ment the police power is one of the least limitable is deep 
in our law . . . ” Lambert v. People of State of California, 
Cal. 1957, 78 S. Ct. 240, 355 U. S. 255, 2 L. Ed. 2d 228,



— 16 —

rehearing denied 78 S. ft. 410, 355 IT. S. 937, 2 L. Ed. 2d 
419.

“ Once a subject is found to be within scope of state’s 
police power the only limitations upon exercise of that 
power are that regulations must have reference in fact 
to welfare of society and must be fairly designed to pro­
tect the public against evils which might otherwise occur, 
and within- these limits legislature is sole judge of nature 
and extent of measures necessary to accomplish its pur­
pose.’’ Gilbert v. Mathews, 1960, 352 P. 2d 58, 186 Kan. 
672.

The question of whether the legislative body of the city 
should have placed additional restrictions upon property 
owners in safeguarding their property against trespassers, 
as urged by petitioners, is not properly a question for this 
Court, and has so been decided many times. Such prin­
ciple was affirmed in the following language in the case 
of Standard Oil Co. v. City of Marysville, Kan., 1929, 49 
S. Ct. 430, 279 U. S. 582, 73 L. Ed. 856, rehearing denied 
50 S. Ct. 79, motion denied 51 S. Ct. 38, 282 U. S. 797, 75 
L. Ed. 718, wherein it Avas stated, “ Where legislative ac­
tion is within scope of the police power, fairly debatable 
questions (emphasis supplied) as to its reasonableness, wis­
dom and propriety are not for the determination of courts 
but for that of the legislative body on which rests the 
duty and responsibility of decision.”

Petitioners also argue that a scienter requirement should 
have been laid down in the ordinance. This, too, is the 
province of the legislative body, and has so been ruled 
bv this Court, and in the Alabama Supreme Court. Smith 
v! State, 136 So. 270, 271, 223 Ala. 346, states, “ The doing 
of the inhibited act constitutes the crime, and the moral 
turpitude or purity of the motive by which it was 
prompted and knowledge or ignorance of its criminal char-

I



17 —

acter are immaterial circumstances on the question of 
guilt. Whether or not in a given case a statute is to be 
so construed is to be determined by the court by consider­
ing the subject matter of the prohibition as well as the 
language of the statute (emphasis supplied), and thus as­
certaining the intention of the legislature.”

Petitioners argue that the trespass ordinance gives no 
fair warning of its “ harshness” (p. 28). In light of the 
fact that petitioners in some instances suggested calling 
the police, refused to leave when afforded an opportunity 
to leave, and insisted on their rights to remain, this argu­
ment seems little more than spurious.

Of more importance in considering petitioners’ question 
for review number 3, is the question of how it was as­
serted in the state court. Ground number 5 of the motions 
to exclude the evidence, which were filed in only some of 
the cases below (Gober 5, Davis 5, Hutchison 5, King 5, 
Parker 5, Sanders 5, Walker 5), did in different terms 
raise the question. Only at this point is it raised.

However, in Alabama it is held, “ The rule that in re­
spect to a motion to exclude all of the plaintiff’s evidence 
in a civil case, is that the trial court will not be put. in 
error for refusing the motion, nor will it be put in error 
for granting it if the evidence does not make out a prima 
facie ease. Dudley Brothers Lumber Co. v. Long, 109 So. 
2d 684, 268 Ala. 565. In other words, under Alabama de­
cisions a motion to exclude the evidence is not reviewable 
by the appellate court. The affirmative charge is the only 
way to make it reviewable. Mazer v. Brown, 66 So. 2d 
563, 259 Ala. 449.



— 18 —

IV.

Question number 4, presented by petitioners (p. 3) and 
argued under Reasons for Granting the Writ (pp. 30-34), 
is whether freedom of expression was denied petitioners 
where, as petitioners allege, the managers did not call the 
police or demand prosecution “ and were apparently will­
ing to endure the controversy without recourse to crim­
inal process” .

Petitioners refer to Mr. Justice Harlan’s concurring 
opinion in Garner v. State of Louisiana, 82 S. Ct. 248 
(1961), in which there was found a protected area of free 
expression on private property on facts regarded as in­
volving “ the implied consent of management . . Re­
spondent is in full accord with this recent affirmance of 
established law. Mr. Justice Harlan, in the foregoing 
opinion, affirmed also, “ This is not to say, of course, that 
the Fourteenth Amendment reaches to demonstrations con­
ducted on private property over the objection of the owner 
(as in Briscoe) just as it would not encompass verbal ex­
pression in a private home if the owner has not consented” .

For one reason or another, it appears from the peti­
tioners’ argument that if a demonstration is involved, the 
case for free speech becomes stronger. Whatever may be 
the significance of the word demonstration, the facts in 
these cases do not indicate to your respondent that demon­
strations were involved in these cases.

According to the records, certain things were common 
in each of the cases. None of the petitioners carried plac­
ards or handbills. None of the petitioners made or at­
tempted to make speeches. No one resisted arrest in any 
manner so as to attract attention. None of the usual fan­
fare of photographers and newspaper people were in at­
tendance as is customary for demonstrations. One of the

t



— 19 —

petitioners (Gober 19, Davis 20) suggested that the police 
be called, indicating that his extended presence on the 
premises was not of importance. One of the petitioners 
(Gober 42, Davis 43) stated the nature of his business was 
to “ shop” , and that he purchased socks, toothpaste, and 
a handkerchief (ibid). He stated further he was there for 
“ a snack” (Gober 48, Davis 49). Another of the peti­
tioners (West 26, Parker 25) stated he purchased comic 
books and paper. He further testified (ibid) that he said 
to Parker, “ Let’s go over here and get something to eat.”

The only inference your respondent can fairly draw from 
the behavior of the petitioners in the stores is that their 
mission was to provoke an arrest and not to stage any­
thing in the nature of a demonstration. The tact that 
only two students were involved in each store lends further 
credence to this conclusion. Under the facts as presented 
in the records, it would appear that the petitioners were 
accorded everything they sought in each of the stores, 
and that their right, to precipitate litigation was in no 
way impeded nor denied them, but quite to the contrary. 
It must be assumed, and it is not denied, that the plans 
of the petitioners proceeded as they expected them to.

It is difficult for your respondent to see wherein the 
matter of free speech was in any way involved in the 
incidents which took place in the various stores. Assum­
ing, however, that your respondent is in error in this 
regard, this Court’s recent expression through Mr. Justice 
Harlan, in Gainer, supra, would deny petitioners Four­
teenth Amendment protection while demonstrating on the 
private property of another after being told to leave.

The fact that the store owners may have maintained 
separate eating facilities for Negroes out of prejudice or 
racial intolerance is of no legal significance. As Mr. Jus­
tice Douglas wrote in Garner v. Louisiana, supra, “ So far



—  20

as the Fourteenth Amendment is concerned, individuals 
can be as prejudicial and intolerant as they like.”

Much of petitioners’ argument is directed to the manner 
in which the police made the arrest. Evidently, the peti­
tioners are under the impression that witnesses to a crime 
or punishable offense are to blind themselves to what they 
see and make no report to law enforcement officers. As 
often as not, the victim is preoccupied and hardly in a 
position to make a timely report to the police.

In either event, however, the record is silent as to who 
in fact made the report to the police department, other 
than the testimony that a store detective was waiting for 
the police in one instance, Newberry Store (Parker 23, 
West 20), and at another, an officer made an arrest after 
his superior officers discussed the matter with people in 
the store and he was ordered to make the arrest (Gober 
17-18, Davis 18-19).

Petitioners made no attempt, as shown by the record, to 
avail themselves of any of the records kept in the police 
department of complaints made by phone, nor does the 
record disclose that they attempted to get the information 
as to the source of the complaint by interrogating any of 
the officials of the police department on the subject in the 
trial below.

Where an offense has been committed, as in these in­
stances, where the petitioners had been told to leave the 
dining area and they refused, it is not essentially the prob­
lem of the store owners to establish law enforcement policy 
for the City. After the intruders were told by the owners 
or their agents to leave and the owners were confronted 
with defiance and refusal of their order, an offense had 
been committed, punishable under the city code, and the 
question of then entering upon a “ social and economic 
give and take” between the store owner and the offender 
would necessarily be pre-empted.

t



—  21 — -

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should
be denied.

Respectfully submitted,

WATTS E. DAVIS, 

WILLIAM C. WALKER,

EARL McBEE,
600 City Hall Building, 

Birmingham, Alabama, 
Attorneys for Respondent.



1

>-x.

/

I n t h e

Ihtprpntp CfJmtrt a t tlj? Itntoii B U U b

O ctober T e e m , 19G1 
No. 694

J am es G ober, J am es A lbert  D avis, R oy H u t c h in s o n , 
R obert J. K in g , R obert P arker , W il l ia m  W est , R obert 
D. S anders, R oosevelt W estm oreland , J essie  W alker , 
W il l ie  J. W il l is ,

Petitioners,
—v.—

C ity  of B ir m in g h a m ,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
ALABAMA COURT OF APPEALS

REPLY TO BRIEF IN OPPOSITION 
TO CERTIORARI

L eroy D. C lark  
M ic h a el  M eltsn er  
J am es M. N abrit , III  
L ouis  H . P ollak

of Counsel

J ack G reenberg  
Co nstance  B aker  M otley 

10 Columbus Circle 
New York 19, N. Y.

A r t h u r  D. S hores

1527 Fifth Avenue, North 
Birmingham, Alabama

P eter  A. H all 
Orzell  B illin g sley , J r .
Oscar W. A dams, J r.
J. R ic h m o n d  P earson

Attorneys for Petitioners



1

l

In t h e

(Eauxt nt Xl]t litmteJi ©tales
O ctober T e r m , 1961 

No. 694

- — — — ~     —     —     -------------

J am es  G ober, J am es A lbert  D avis, E oy H u t c h in s o n , 
R obert J. K in g , R obert P a rk er , W il l ia m  W e st , R obert 
D . S anders, R oosevelt W estm oreland , J essie  W alker , 
W il l ie  J. W il l is ,

—v.—
Petitioners,

City of  B ir m in g h a m ,
Respondent.

o n  p e t it io n  for  w r it  of certiorari to t h e

ALABAMA COURT OF APPEALS 

- ............ .... ——  —-------- ------- -

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION 
TO CERTIORARI

Petitioners have received respondent’s Brief in Opposi­
tion to the Petition for Certiorari filed in this case and 
hereby reply pursuant to Rule 24(4) of the Rules of this 
Court.

I.
Adequacy o f service.

Respondent claims (Br. of Respondent, 3, 9, 10) that 
this Court lacks jurisdiction to entertain the Petition be­
cause the Petition and Notice of Filing of the Petition were 
served upon MacDonald Gallion, Attorney General of the



2

State of Alabama, and James M. Breekenridge, ratlier than 
Watts E. Davis and William L. Walker. Messrs. Walker 
and Davis are Assistant City Attorneys of Birmingham; 
Mr. Breekenridge, upon whom service was made, is their 
superior, the City Attorney, as is evidenced by copy of 
the letter accompanying Bespondent’s Brief in Opposition, 
reproduced, infra, p. la. Petitioners submit, therefore, 
that this objection is without merit, see infra, p. la.

II.
Mode of raising constitutional questions.

Respondent implies that petitioners did not properly 
raise constitutional objections in the courts below and 
that petitioners’ constitutional objections were not passed 
tipon by the Alabama Courts.

Specifically, respondent argues that Birmingham’s segre­
gation in eating facilities ordinance was not pleaded in 
the trial court and does not appear in the records and that, 
therefore, this Court should not consider it now. The 
theory of judicial notice is, however, that regarding 
propositions involved in the pleadings, or relevant thereto, 
proof by evidence may be dispensed with. 9 Wigmore, 
§2565, p. 531. As it is beyond question that the Courts of 
Alabama are required to judicially note ordinances of the 
City of Birmington, see Br. of Petitioners, 7, n. 4,1 the 
only possible objection which can be made is that the

1 Title 7, Code of Alabama, 1940, Section 429(1) (Approved 
June 18, 1943) states:

“J u d ic ia l  N otice op t h e  O r d in a n c e s  of Ce r t a in  C it ie s .— All 
courts in or of tbe State of Alabama shall take judicial notice 
of all the ordinances, laws and bylaws of cities of the State of 
Alabama which may now or hereafter have a population of 
200,000 or more people according to the last or any succeeding 
federal census.”



1

3

ordinance is not relevant to questions raised by the plead­
ings. Petitioners, however, clearly raised the contention 
that they were arrested, prosecuted and convicted because 
of state enforcement of segregation (e.g. Gober, 5-7, 9-11). 
Moreover, these contentions were rejected by the Alabama 
Courts (e.g. Gober, 8 , 9, 11, 62, 63, 64). Finally, petitioners 
attempted to interrogate concerning the ordinance (Br. 
of Petitioners, 6 , 7; Gober, 22-24; Davis, 23-25), but the 
evidence was excluded (Gober, 24; Davis, 25).

Respondent argues that no Motion to Exclude the Evi­
dence is shown by the record in the case of Roosevelt West­
moreland. It is true that no Motion to Exclude is in the 
record of the Westmoreland Case, but it is clear from 
the Westmoreland record that such a motion was made 
and denied by the trial court. The judgment entry in 
Westmoreland states that (Westmoreland, 5):

“ . . . and the defendant files motion to exclude the 
evidence, and said motion being considered by the 
Court, it is ordered and adjudged by the Court that 
said motion be and the same is hereby overruled, to 
which action of the Court in overruling said motion, 
the defendant hereby duly and legally excepts.”

Moreover, the Motion for New Trial in the Westmoreland 
Case alleges that the Court refused to grant the Motion to 
Exclude (Westmoreland, 8 ) and the Assignments of Error, 
Assignment 3 alleges error in refusing to grant the Motion 
to Exclude (Westmoreland, 3 2 ) . Finally, the trial court 
ruled that, by stipulation, the motions in all the cases 
would be identical (Hutchinson, 3 3 ).

Respondent argues that the Motions to Exclude the Evi­
dence did not contain a prayer for relief. This objection 
has no merit. The purpose of these motions is clear on their



1

4

face, and the Alabama Courts raised no question as to their 
form.

Respondent argues that the Motions to Strike and the 
demurrers did not specifically raise the question of the 
need for some identification of authority to ask Peti­
tioners to leave the luncheon areas. This issue was, how­
ever, raised properly in the Motions to Exclude and the 
Motions for New Trial (e.g,, Gober, 5-7) and was decided 
adversely to petitioners, on the merits, by the Alabama 
Courts (e.g., Gober, 8 , 62, 63).

It is clear from the face of the records of these cases 
that petitioners raised constitutional questions at every 
opportunity in both the trial and appellate courts and 
that these questions were considered by the Alabama Courts 
and rejected on their merits. The Alabama Court of Ap­
peals stated:

Counsel has argued among other matters, various 
phases of constitutional law, particularly as affected 
by the Fourteenth Amendment of the Federal Constitu­
tion, such as freedom of speech, in regard to which 
counsel state: “What has become known as a ‘sit-in’ 
is a different, but well understood symbol, meaningful 
method of communication.” Counsel has also referred 
to cases pertaining to restrictive covenants. We con­
sider such principles entirely inapplicable to the pres­
ent case. (Emphasis added.) (Br. of Petitioners, 8a.)



1

5

III.
The importance of the issue: reasons why these cases 

should be heard here prior to disposition of other sit-in 
litigation.

Counting the ten convictions embraced by the instant 
certiorari petition, there are now pending before this Court, 
eleven separate certiorari petitions and jurisdictional state­
ments dealing with state court criminal convictions growing- 
out of the “sit-in” movement.2

It seems almost beyond dispute that each of these con­
victions poses constitutional issues of major dimension. 
Cf. Garner v. Louisiana, 7 L. ed. 2d 207. And their humble 
facts only serve to highlight the importance of the issues 
posed. Cf. Tick Wo v. Hopkins, 118 U. S. 35G; Thompson 
v. Louisville, 362 U. S. 199.

But this concentration of cases poses a real problem of 
judicial administration. These multiple convictions merit 
careful review in the light of relevant constitutional princi-

2 Dreivs v. State (Jurisdictional Statement filed 29 U. S. L. Week 
3286, No. 840, 1960 term; renumbered No. 71, 1961 term) ; Wil­
liams v. North Carolina (Petition for Cert, filed 29 U. S. L. Week 
3319, No. 915, 1960 term; renumbered No. 82, 1961 term); Avent 
v. North Carolina (petition for eert. filed 29 U. S. L. Week 3336, 
No. 943, 1960 term; renumbered No. 85, 1961 term ); Fox v. North 
Carolina (petition for cert, filed Id. No. 944, 1960 term; renum­
bered No. 86; 1961 term). Randolph v. Commonwealth of Virginia 
(petition for cert, filed 30 U. S. L. Week 3069, No. 248, 1961 term) ; 
Henry v. Commonwealth of Virginia (petition for cert, filed 30 
U. S. L. Week 312c„ No. 346, 1961 term ); Lombard v. Louisiana 
(petition for cert, filed 30 U. S. L. Week 3234, No. 638, 1961 term ); 
Gober v. City of Birmingham (petition for eert. filed 30 U. S. L. 
Week 3250, No. 694, 1961 term ); Thompson v. Commonwealth of 
Virginia (petition for cert, filed 30 U. S. L. Week 3234, No. 6o5, 
1961 term) : Peterson v. City of Greenville (petition for cert, filed 
30 U. S. L. Week 3274, No. 750, 1961 term). Cf. also Shuttles- 
worth and Billups v. City of Birmingham (petition for cert, filed 
30 U. S. L. Week 3258, No. 721, 1961 term).



pies. And yet it may be, in view of this Court’s manifold 
responsibilities in so many realms of public adjudication, 
that detailed sifting of the scores of somewhat varying 
factual situations underlying these eleven pending ap­
plications for review cannot be forthcoming immediately. 
Institutional limitations counsel recognition that this Court 
may feel compelled to select for initial adjudication from, 
among the pending eleven applications the one or more 
whose facts may best illuminate constitutional judgments 
of widespread application and implication. Just as “wise 
adjudication has its own time for ripeness”, Maryland v. 
Baltimore Radio Store, Inc., 338 U. S. 912, 918, so too it 
may flower best when rooted deep in rich factual soil.

Viewed in this light, the instant petition for certiorari 
presents cases which seem peculiarly apt prototypes of 
the entire corpus of “sit-in” litigation. Another case which 
presents issues in almost the same way as the instant one, 
and to which much of what is said here applies, is Peterson 
v. City of Greenville, No. 750, October Term, 1961. In the 
cases represented by this certiorari petition, (1 ) there was 
a municipal ordinance requiring restaurant segregation; 
(2 ) at least one of the proprietors demonstrably shaped his 
business practices to conform to the segregation ordinance 
(although inquiry into the general impact of the ordinance 
was foreclosed by judicial rulings below); (3) in each case 
the proprietor welcomed Negro patronage in the part of 
his establishment not covered by the ordinance; (4) in none 
of the cases was a defendant ordered from the store by 
the proprietor or his agent; (5) in none of the cases were 
the police summoned by the proprietor or his agent; and 
(6 ) in each of the cases the defendant was arrested for 
and convicted of trespass notwithstanding the non-asser­
tion by the proprietor of whatever theoretical claims he 
may have had to establish a policy of excluding Negroes 
(a) from his premises as a whole or (b) from his restaurant



7

facilities (assuming there had been no segregation ordi­
nance precluding any such discretionary business judgment 
on the proprietor’s part).

In short, the salient facts summarized above illustrate 
with compelling specificity many separately identifiable 
(albeit integrally connected) aspects of state action enforc­
ing racial segregation. Thus, the cases represented in this 
certiorari petition seem particularly apt vehicles for fur­
ther judicial exploration of the problems to which this 
Court first addressed itself in Garner v. Louisiana, supra.I

CONCLUSION

W h e r e fo r e , f o r  th e  fo re g o in g  re a s o n s , i t  is  re sp e c tfu lly  
s u b m it te d  t h a t  th e  p e t i t io n  f o r  w r i t  o f certiorari sh o u ld  be 
granted.

Respectfully s u b m itte d ,

J ack  G reenberg

C onstance  B aker M otley 
10 Columbus Circle 
New York 19, N. Y.

A r t h u r  D . S hores

1527 Fifth Avenue, North 
Birmingham, Alabama

P eter  A. H all

O rzell  B illin g sley , J r .
O scar W. A dams, J r.
J. R ic h m o n d  P earson

Attorneys for Petitioners

L eroy D . C lark  
M ic h a e l  M eltsn er  
J am es M . N a brit , III 
Louis H. P ollak

of Counsel



8

1

(See opposite) §55p



1

JOH N M. B R E C K E N R ID O B  
C IT Y  A T T O R N & Y

C I T Y
l"|!! „

— id!?!

i | H AM
i i'l

I
fc;«'

iffff! | flFi #111 !
*®U^S.. .SLjlLUUlUL, ^a#llw Ear

f* * * * «fflflte
A S S IS T A N T  C IT Y  A T T O R N E Y S

$
W A TTS R .  D AVIS 
WM. A . THOMPSON 
JA M E S  a  .ADAM S. Ill 
WM . C . W A LK ER  
THOMAS J . H A YD EN

February S3, 1962

Mr. Jack Greenberg 
10 Columbus Circle 
New York 19, New York

Re: James Gober, et al
vs. CITY OF BIRMINGHAM

Dear Mr. Greenberg:
Enclosed please find copy of Brief filed on behalf 

of Respondent to Petition for Writ of Certiorari.

Watts E. Davis 
Assistant City Attorney

WED:ng
Enel.AIR MAIL



IN THE

OCTOBER TERM—1961

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE UNITED STATES.

JOHN P. NELSON, JR.,
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

2211 Dryades Street,
New Orleans, Louisiana, 

Attorneys for Petitioners.

M on tg o m ery  fc Co., “T h e B r ie f  S p ec ia lis ts* 11, 430  C h a r t re s  S t.,  N . Q., La.



INDEX.

Page
OPINIONS B ELO W ..............................................  1

JURISDICTION ..................................................  2

QUESTIONS PR ESEN TED ................................  2

STATUTORY AND CONSTITUTIONAL PRO­
VISIONS INVOLVED ................................. 3

STATEMENT ......................................   4

HOW THE FEDERAL QUESTIONS ARE PRE­
SENTED ..........................................................  8

REASONS FOR GRANTING THE W R IT .........  12
I. The Decision Below Conflicts With Deci­

sions of This Court on Important Issues 
Affecting Federal Constitutional Rights 12 

II. The Public Importance of the Issues Pre­
sented ........................................................  22

CONCLUSION ........................................................  26

TABLE OF CASES.
A. F. L. v. Swing, 312 U. S. 321 (1941)............ 14
Allgeyer v. Louisiana, 165 U. S. 578 (1897) 16
Brown v. Board of Education, 347 U. S. 483 25
Buchanan v. Warley, 245 U. S. 60 16
Burstyn v. Wilson, 343 U. S. 495 ....................... 19
Cantwell v. Connecticut, 310 U. S. 296 14



n

TABLE OF CASES— (Continued)

Page
Civil Plights Cases, 109 U. S. 3 .............................  22
Dorsey v. State Athletic Commission, 168 F. Supp.

149, aff’d 359  U. S. 533 .................................  25
Feiner v. New York, 340 U. S. 315 (1951) .......... 20
Gayle v. Browder, 352 U. S. 903 ...........................  25
Giboney v. Empire Storage and Ice Co., 336 U. S.

490 (1949) .....................................  .......... 20

Hurd v. Hodge, 334 U. S. 24 (1948) .....................  16
Marsh v. Alabama, 326 U. S. 501 .........................  18
New Negro Alliance v. Sanitary Grocery Co., 303

U. S. 552 (1938) ........................... .................  20
Orleans Parish School Board v. Bush, 242 F. (2d)

156 (5 th Cir. 1957), cert, denied 354 U. S.
921 ....................................................................  25

Shanks, State Action and the Girard Estate Cast,
105 U. Pa. L. Rev. 213 (1956) .....................  14

Shelley v. Kraemer, 334 U. S. 1 13,14, 16
Schneider v. State, 308 U. S. 147 (1939) ............ 20
Sellers v. Johnson, 163 F. (2d) 877 (8 th Cir. 1947)

cert, denied, 332 U. S. 851 (1948) 21
State v. Goldfinch, et ah, 132 So. (2d) 860 2
Terminiello v. Chicago, 337 U. S. 1 .....................  20
Terry v. Adams, 345 U. S. 461, 73 S. Ct. 809, 97

L. Ed. 1152 ....................................................  12
Thornhill v. Alabama, 310 U. S. 88  19
United States v. McElveen, 180 F. Supp. 10 (E. D.

La., 1960) aff’d sub nom United States v. 
Thomas, 362 U. S. 58 (1960) ........................  13



I l l

TABLE OF CASES— (Continued) 

Valle v. Stengel, 176 F. (2d) 697 (3d Cir.
Page

Williams v. Howard Johnson’s Restaurant, 268 F.
(2d) 845 (4th Cir. 1959) ..............................  14

Statutes:

LSA-R. S. Sections 14-59 ......................................  3
LSA-Civil Code, Article 3 and 21 ......................... 14

O ther A uthorities:

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cor­
nell L. 2. 375 (1958) ......................................  13

“Freedom to Contracts”—A New Civil Right, 59
Yale L. J. 1167 (1950) ..................................  17

Pollitt, “Dime Store Demonstrations: Events and 
Legal Problems of the First Sixty Days,” 1960 
Duke Law Journal 315 (1960) .................... 23

New York Times, August 11 , 1960, p. 14, col. 5
(late city edition) ............................................ 23

New York Times, Oct. 1 8 , 1960, p. 47, col. 5 (late
city edition) ...................................................  23



COURT OF THE UNITED STATES
OCTOBER TERM—1961

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE UNITED STATES.

Petitioners pray that a writ of certiorari issue to 
review the judgment of the Supreme Court of Louisiana 
entered in the above-entitled case on June 29, 1961, 
rehearing denied October 4, 1961.

CITATIONS TO OPINIONS BELOW.
The trial judge for the Criminal District Court 

of Orleans Parish rendered written reasons for over­
ruling the petitioners’ motion to quash. These reasons, 
totaling 44 pages, are found on pages 32 through 76 of 
the transcript. No written or oral reasons were given



2

by the trial judge when he found the defendants guilty. 
The opinion rendered by the Supreme Court of Louisiana 
is reported in 132 So. (2d ) 860, as State v. Goldfinch, et al.

JURISDICTION.
The judgment of the Supreme Court of Louisiana 

was entered on June 29, 1961. The jurisdiction of this 
Court is invoked under 28 U. S, C., § 1257(3), petitioners 
claiming rights, privileges and immunities under the 
Fourteenth Amendment to the Constitution of the United 
States.

QUESTIONS PRESENTED.
Petitioners, three Negro students and one white 

student, acting in concert, sat down and sought food serv­
ice at a lunch counter which served only white people in 
a public establishment which welcomed their trade with­
out racial discrimination at all counters but that lunch 
counter; for that they were arrested and convicted of 
“criminal mischief.” Under the circumstances of the 
arrest and trial were the petitioners deprived of rights 
protected by the

1. Due process clause of the Fourteenth Amendment 
in that they were convicted on a record barren of 
any evidence of guilt;

2. Due process clause of the Fourteenth Amendment 
in that they were convicted under a penal provi­
sion which was so indefinite and vague as to afford 
no ascertainable standard of criminality;

3. Due process and equal protection clauses of the 
Fourteenth Amendment to the United States Con-



3

stitution in that they were arrested and convicted 
to enforce Louisiana’s state policy of racial dis­
crimination ;

4. Due process clause of the Fourteenth Amendment, 
as that clause incorporates First Amendment type 
protection of liberty of speech and expression;

5. Due process clause of the Fourteenth Amendment 
in that the trial judge refused petitioners the right 
to introduce evidence showing that the store owners 
were acting in concert with and/or in behalf of 
municipal and state law enforcement agencies and 
officers ;

Y 6 . Due process clause of the Fourteenth Amendment
in that the trial judge allowed the state to intro­
duce hearsay evidence over defendants’ objection, 
which evidence was used to furnish one of the nec­
essary elements in the alleged crime;

Y 7. Due process clause of the Fourteenth Amendment
in that the trial judge continued to ask state wit­
nesses leading questions dealing with material and 
relevant facts over the objection of defendants.

STATUTORY AND CONSTITUTIONAL 
PROVISIONS INVOLVED.

1. The Fourteenth Amendment to the Constitu­
tion of the United States.

2 . The Louisiana statutory provision involved is 
LSA-R. S. 14:59 (6 ):

“Criminal mischief is the intentional performance 
of any of the following acts: * * *•



4

“ (6 ) taking temporary possession of any part or 
parts of a place of business, or remaining in a place 
of business after the person in charge of said busi­
ness or portion of such business has ordered such 
person to leave the premises and to desist from 
the temporary possession of any part or parts of 
such business.

“Whoever commits the crime of criminal mischief 
shall be fined not more than five hundred dollars, 
or imprisoned for not more than one year, or both.”

STATEMENT.
SEPTEMBER 10, 1960—A group of Negroes con­

ducted a “sit-in” demonstration at Woolworth’s Depart­
ment Store in the City of New Orleans. This was a peace­
ful demonstration and was the first of its kind to take 
place in the city.

SEPTEMBER 10, 1960—Later the same day, Su­
perintendent of Police for the City of New Orleans is­
sued a statement (Appellant II) which was highly pub­
licized in the newspapers. It was also carried on TV 
and radio. The statement read as follows:

“The regrettable sit-in activity today at the lunch 
counter of a Canal St. chain store by several young 
white and Negro persons causes me to issue this 
statement to the citizens of New Orleans.

“We urge every adult and juvenile to read this 
statement carefully, completely and calmly.



5

“First, it is important that all citizens of our com­
munity understand that this sit-in demonstration 
was initiated by a very small group.

“We firmly believe that they do not reflect the sen­
timents of the great majority of responsible citi­
zens, both white and Negro, who make up our 
population.

“We believe it is most important that the mature 
responsible citizens of both races in this city under­
stand that and that they continue the exercise of 
sound, individual judgment, goodwill and a sense 
of personal and community responsibility.

“Members of both the white and Negro groups in 
New Orleans for the most part are aware of the 
individual’s obligation for good conduct—an obli­
gation both to himself and to his community. With 
the exercise of continued, responsible law-abiding 
conduct by all persons, we see no reason for any 
change whatever in the normal, good race-relations 
that have traditionally existed in New Orleans.
“At the same time we wish to say to every adult 
and juvenile in this city that the police department 
intends to maintain peace and order.
“No one should have any concern or question over 
either the intent or the ability of this department 
to keep and preserve peace and order.
“As part of its regular operating program, the New 
Orleans police department is prepared to take 
prompt and effective action against any person or 
group who disturbs the peace or creates disorder 
on public or private property.



6

“We wish to urge the parents of both white and 
Negro students who participated in today’s sit-in 
demonstration to urge upon these young people that 
such actions are not in the community interest.
“Finally, we want everyone to fully understand 
that the police department and its personnel is 
ready and able to enforce the laws of the City of 
New Orleans and the State of Louisiana.”

SEPTEMBER 13, 1960—De Lesseps Morrison, 
then mayor of the City of New Orleans, issued a highly 
publicized statement (Appellant I) setting forth the city’s 
policy of handling these peaceful demonstrations. The 
statement reads in part as follows:

“I have today directed the Superintendent of Po­
lice that no additional sit-in demonstrations or so- 
called peaceful picketing outside retail stores by 
sit-in demonstrators or their sympathizers will be 
permitted.”

*• * * * * *
“It is my determination that the community inter­
est, the public safety, and the economic welfare of 
this City require that such demonstrations cease 
and that henceforth they be prohibited by the Po­
lice Department.”

SEPTEMBER 17, 1960—The defendants, three 
Negroes and one white, acting in concert (Tr. p. 133) in 
an orderly and quiet manner (Tr. pp. 103, 107), at ap­
proximately 10:30 a. m., requested to be served food at 
the “white” refreshment bar in McCrory’s Five and Ten 
Cent Store, 1005 Canal Street, New Orleans, La. Be-



7

cause three were Negroes, all were refused service. (Tr. 
p. 117.)

The continued presence at the “white” counter of 
the defendants, after refusing to move to the “colored” 
counter (Tr. p. 100) was considered by Mr. Graves, res­
taurant manager, as an “unusual circumstance” (Tr. p. 
103), or an “emergency” (Tr. p. 100), hence he ordei’ed 
the counter closed down (Tr. p. 100) and called the police 
(Tr. p. 101).

After the police arrived on the scene, and after a 
conference with Captain Lucien Cutrera of the New Or­
leans Police Department (Tr. p. 125), Mr. Wendell Bar­
rett, in a loud voice, told the defendants that the depart­
ment was closed and requested them to leave the de­
partment (Tr. p. 110). When they did not answer or 
comply with the request, Major Edward Ruther, a mem­
ber of the New Orleans Police Department, gave the 
defendants two minutes within which to leave. (Tr. p. 
115.) After waiting approximately six minutes, the 
defendants were placed under arrest (Tr. p. 122), charged 
and convicted under R. S. 14:59 (6 ).

McCrory’s, at 1005 Canal Street, is part of a na­
tional chain operating in thirty-four states, owned by the 
McCrory Stores, Incorporated. (Tr. p. 22.) It is classified 
as a “variety of merchandise” type store (Tr. p. 109), 
made up of approximately twenty departments (Tr. p. 
119) and open to the general public (Tr. p. 21). Included 
in its services to the public are eating facilities com­
posed of a main restaurant that seats 2 1 0 , a counter that 
seats 53, a refreshment bar that seats 24 and two stand-up



8

counters. (Tr. p. 99). All of the eating facilities are seg­
regated. There are no signs indicating whether service 
at any particular counter is limited to either Negro or 
white. (Tr. pp. 106, 107.)

Mr. Barrett, the manager at McCrory’s for the 
past two and one-half to three years (Tr. p. 21), had pre­
viously served as manager for the McCrory stores in 
Savannah and Valdesta, Georgia. (Tr. p. 21.) He has 
never been employed in a “desegregated” McCrory store. 
(Tr. p. 24.)

The store’s segregation policy is determined by 
local tradition, law and custom, as interpreted by the 
manager. (Tr. p. 24.) The manager, Mr. Barrett, testi­
fied that his decisions relative to segregated lunch count­
ers within the store conform to state policy, practice and 
custom. (Tr. p. 28.) '%

HOW THE FEDERAL QUESTIONS ARE PRESENTED.
The federal questions sought to be reviewed here 

were raised in the court of first instance (the Criminal 
District Court for the Parish of Orleans, Section “E” ) 
on the 17th day of October, 1960, by petitioners’ timely 
motion to quash the information. (Tr. p. 9.) Among 
other allegations, the motion contains the following:

“2. That the said defendants are being de­
prived of their rights under the ‘equal protection 
and due process’ clauses of both the Constitution 
of Louisiana and of the United States of America, 
in that the said law under which the Bill of In­
formation is founded is being enforced against



9

them arbitrarily, capriciously and discriminately, 
in that it is being applied and administered un­
justly and illegally, and only against persons of 
the Negro race and/or white persons who act in 
concert with members of the Negro race.

“7. That the refusal to give service solely 
because of race, the arrest and subsequent charge 
are all unconstitutional acts in violation of the 
Fourteenth Amendment of the United States Con­
stitution, in that the act of the Company’s repre­
sentative was not the free will act of a private 
individual, but rather an act which was encour­
aged, fostered and promoted by state authority in 
support of a custom and policy of enforced segre­
gation of race at lunch counters.

“8. That the arrest, charge and prosecution 
of the defendants are unconstitutional, in that they 
are the result of state and municipal action, the 
practical effect of which is to encourage and foster 
discrimination by private parties.”

The motion was argued, submitted and denied on 
November 28, 1960, to which ruling petitioners objected 
and reserved a formal bill of exception.

Petitioners’ case came on for trial on the seventh 
day of December, 1960. Following the verdict of guilty, 
a motion for a new trial (Tr. p. 76) and a motion in 
arrest of judgment (Tr. p. 80) were filed, which motions 
alleged, inter alia (Tr. p. 77):

“The verdict is contrary to the law in that:



10

“E. The evidence offered against defend­
ants in support of the information charging them 
with violation of L. S. A.-R. S. 14:59(6) estab­
lishes that at the time of arrest and at all times 
covered by the charges, they were in peaceful ex­
ercise of constitutional rights to assemble with 
others for the purpose of’speaking and protesting 
against the practice, custom and usage of racial 
discrimination in McCrory-McLennan Corp., an 
establishment performing an economic function in­
vested with the public interest; that defendants 
were peacefully attempting to obtain service in the 
facilities of McCrory-McLennan Corp., in the man­
ner of white persons similarly situated and at no 
time were defendants defiant or in breach of the 
peace and were at all times upon an area essen­
tially public, wherefore defendants have been de­
nied rights secured by the due process and equal 
protection clauses of the 14th Amendment of the 
United States Constitution;

“F. The evidence establishes that prosecu­
tion of defendants was procured for the purpose of 
preventing them from engaging in peaceful assem­
bly with others for the purpose of speaking and 
otherwise peacefully protecting in public places the 
refusal of the preponderant number of stores, fa­
cilities and accommodations open to the public in 
New Orleans to permit defendants and other mem­
bers of the Negro race from enjoying the access to 
facilities and accommodations afforded members of 
other races; and that by this prosecution, prosecut­
ing witnesses and arresting officers are attempt-



11

ing to employ, the aid of the court to enforce a ra­
cially discriminatory policy contrary to the due 
process and equal protection clause of the 14th 
Amendment to the Constitution of the United 
States.”

The motions for a new trial and to arrest the 
judgment were denied (Tr. p. 4), and petitioners filed 
forthwith a bill of exception, renewing all reservations, 
motions and bills of exception previously taken. (Tr. 
p. 84.)

Thereafter, on January 10, 1961, petitioners ap­
pealed to the Supreme Court of the State of Louisiana, 
and also urged during the course of that appeal that the 
verdict and the sentence deprived the petitioners of the 
equal protection afforded by the 14th Amendment to the 
United States Constitution.

Prior to trial on the merits, certain evidence was 
introduced in support of motion to quash and assertion of 
various constitutional defenses under the Fourteenth 
Amendment to the Constitution of the United States. The 
motion to quash was duly overruled.1

The case was subsequently fixed for trial and all 
petitioners found guilty.2 They were each sentenced to 
pay a fine of $350.00 and imprisonment in Parish Prison 
for sixty (60) days, and in default of the payment of 
fine to imprisonment in Parish Prison for sixty (60)
1 See  pages 32 through 76 o f  the transcrip t fo r  the w ritten judgm ent

o f  trial jud ge settin g  forth  the reasons fo r  overruling the m otion  
to  quash.

2 No w ritten  or oral reasons w ere g iven  by the trial ju d ge  when he
foun d  the petition ers gu ilty .



12

days additional. Motion for new trial was made and 
denied. The matter was appealed to the Supreme Court 
of Louisiana, where the conviction was affirmed and 
rehearing denied. Apjdication for stay of execution for 
sixty (60) days was granted by the Chief Justice of the 
Louisiana Supreme Court on October 6, 1961.

REASONS FOR GRANTING THE WRIT.
I.

T he Decision Below Conflicts W ith  Decisions of 
This Court on Im portan t Issues A ffecting  Federal 

C onstitu tional R ights.
A. The decision below conflicts with prior deci­

sions of this Court which condemn racially discriminatory 
administration of State criminal laws.

1. The person in charge of the place of business, 
in ordering defendants to leave, did not thereby perform 
a purely private act; rather he acted for the state, under 
the terms of the statute, in order to comply with the 
policy of segregation established by the legislative and 
executive officers of the state.

His act is comparable to that of individuals hold­
ing no state office who challenged the voters’ registra­
tion of 1,377 Negroes in Washington Parish, La., under 
provisions of Louisiana statutes. “The individual defend­
ants, in challenging the registration status of voters, 
were acting under color of the laws of Louisiana. Pro­
viding for and supervising the electoral process is a state 
function. Terry v. Adams, 345 U. S. 461, 73 S. Ct. 809, 
97 L. Ed. 1152. The individual defendants participated

t



13

in this state function under express authority of Louisi­
ana law, using state facilities made available to them. 
LSA-R. S. 18:245. Their actions formed the basis of the 
removal of citizens from the registration rolls by the 
defendant Registrar acting in his official capacity. See 
Shelley v. Kraemer, 334 U. S. 1, 20, 68 S. Ct. 836, 92 L. 
Ed. 1161; United States v. McElveen, 180 F. Supp. 10 
(E. D. La., 1960), aff’d sub nom United States v, Thomas, 
362 U. S. 58 (I960).

By analogy, the person in charge of McCrory’s 
acted under express authority of a Louisiana statute 
when he ordered the defendants to move, and thereby par­
ticipated in the state function of maintaining order in 
places where the public gathers. His action formed the 
basis of their arrest. The only facilities used in the 
McElveen case were the files in the registration office. 
In the instant case, the police power was used with its 
facilities. His act was as much under color of law as 
was the act of the individuals enjoined in the McElveen 
case.

2. His act was not a private one for the addi­
tional reason that it was not a free will act of a private 
individual, but rather an act encouraged, fostered and 
promoted by state authority in support of a custom and 
policy of enforced segregation of races at lunch counters.

The state action limited by the Fourteenth Amend­
ment is not only that of public officers or with public 
funds or on public property. It includes private opera­
tions under many circumstances. See Abernathy, Expan­
sion of the State Action Concept Under the Fourteenth



14

Amendment, 43 Cornell L, 2. 375 (1958) ; Shanks, State 
.Action and the Girard Estate Cast, 105 U. Pa. L. Rev. 
213 (1956).

Unlike the situation in Williams v. Howard John­
son's Restaurant, 268 F. (2d) 845 (4th Cir, 1959), the 
state officers did not merely acquiesce in the custom of 
segregation but actually aided and abetted it, thereby 
making the private act take on the character of a public 
one. Shelley v. Kraemer, 334 U. S. 1 (1948); Valle v. 
Stengel, 176 F. (2d) 697 (3d Cir, 1949).

In Louisiana, custom and received usages have the 
force of law. La.. R. C. C. Articles 3 and 21 (1870). 
If the custom is discriminatory and was applied by act of 
the person in charge of the store, then it can be called 
discrimination under the law. This is comparable to the 
attempt by another state to charge a defendant with the 
common law offense of inciting a breach of the peace, 
Cantwell v. Connecticut, 310 U. S. 296 (1940), or the 
application of a common law policy of a state forbidding 
resort to peaceful persuasion through picketing. A. F. L. 
v. Swing, 312 U. S. 321 (1941). Both these cases indi­
cated that such customary activity could constitute state 
action.

The store manager acted not privately, but under 
the influence of the public policy expressed in the statute, 
the widespread custom of segregation in the community, 
and especially the expressed policy of city officials, in 
ordering the defendants to move, thereby denying them 
their constitutionally guaranteed rights.



15
\ rv>

3. The Fourteenth Amendment to the United 
[ States Constitution forbids state action which deprives 
\  persons of equal protection under the law.

As indicated above, state action is clearly present 
in the instant case, first, by the act of the person in 
charge of McCrory’s in acting under authority of a stat­
ute and in acting as encouraged by state policy; second, 
by the act of the police in arresting defendants; third, by 
the act of the district attorney in charging defendants; 
and fourth, by the act of this Honorable Court in trying 
defendants’ guilt.

However, state action is of course permissible un­
less it is wrongly used. It is not permissible under the 
Fourteenth Amendment if it deprives a person of any 
constitutionally protected right, including the right to 

. equal protection under the law, and the right of free 
speech and the right to property.

Hence, if state action, that is, action under the law, 
deprives a person of equal protection, it is a violation of 
the Amendment.

^  The order to move, the arrest, the charge, the 
prosecution, and the trial of defendants constitute state 
action which denied these defendants equal protection as 
there was no reasonable basis for treating them differ­
ently from any other potential customer at the lunch 
counter, the only basis being their race, which is an 
irrelevant basis. True, their race could be sufficient basis 
for private discrimination, but not for state action.



16

b. Even if this broad inequality of treatment were 
not a sufficient deprivation of constitutionally protected 
right, other such rights have been harmed by state action. 
One such right is the right of free speech discussed else­
where.

Another phase of equal protection guaranteed 
y by the Constitution is the right to contract, or at least 
) the right to attempt to enter into a contract in the same 

manner open to other persons similarly situated, which 
right is a necessary corollary of the right of property, 
that is, the right to attempt to acquire property as would 
other persons similarly situated, or, by contract, Valle v. 
Stengel,']176 F. (2d) 697 (3d Cir, 1949). The equal pro­
tection guarantee is the constitutional basis for 42 U. S. C. 
§ 1981 which assures the right to make and enforce con­
tracts and § 1982 which assures the right to purchase and 
otherwise transact concerning real and personal property. 
Id.; Buchanan v. Worley, 245 U. S. 60 (1917); Hurd v. 
Hodge, 334 U. S. 24 (1948). Cf. Allgeyer v. Louisiana, 
165 U. S. 578 (1897).

Judicial enforcement of a discriminatory restric­
tive covenant unconstitutionally deprives a person of the 
equal right to acquire property. Shelley v. Kraemer, 334 
U. S. 1 (1948) . In that case, a third party was not per­
mitted to use judicial power to enforce the restriction 
against two contracting parties, the Negro being a will­
ing purchaser from a willing vendor. In Valle v. Stengel, 
the unwilling vendor was not permitted to use police 
power to prevent the willing buyer of a ticket to a pri­
vately owned swimming pool from making a contract.



f £<*
>

17

Note, Freedom, to Contracts—-A New Civil Right, 59 Yale
L. J. 1167 (1950).

Defendants wanted to buy lunch. True, the mer­
chant was unwilling to contract and cannot be forced to 
do so. However, all other persons were free to attempt 
to contract with the store, but defendants were no longer 
free to offer to contract because of the interference of the 
police and other state action, j  It takes two parties to 
“make” a contract, but the first necessary element of a 
contract is an offer. The Constitution in guaranteeing- 
equal protection and property rights does not guarantee 
that an offer will be accepted and a contract confected, 
but it puts all persons on an equal footing in denying the 
right of a state to interfere with the process of contract­
ing, including the right to make an offer. If a white 
person attempts to buy lunch at McCrory’s counter and 
is refused, along with all other potential customers simi­
larly situated, because the closing hour of the store is 
approaching and waitresses must clean up before leaving 
with the other employees, that white potential customer 
can return at another time of day and make another 
offer, trying again to make a contract. But defend­
ants are deprived forever of the opportunity of making 
an offer to try to make a contract due to State interfer­
ence with their equal right to enter into the contracting- 
procedure preliminary to acquiring property. Property 
rights are constitutionally protected. Defendants’ prop­
erty rights have been harmed.

4. The fact that the limitation on defendants’ free- 
j;  dom occurred on privately owned property does not cause 
; the deprivation of equal protection to be any less uncon-



18

stitutional—first, because as explained, the fact of order­
ing, arresting, charging, prosecution and trying, all con­
stitute State action; second, because the fact that the 
store has been the kind that advertises widely and admits 
the general public without discrimination causes it to be 
a quasi public place.,/ “Ownership does not always mean 
absolute dominion. The more an owner, for his advan­
tage, opens up his property for use by the public in gen­
eral, the more do his rights become circumscribed by 
the statutory and constitutional rights of those who use 
it. Cf. Republic Aviation Corp. v; Labor Board, 324 
U. S. 793, 802 n. 8. Thus, the owners of privately held 
bridges, ferries, turnpikes and railroads may not operate 
them as freely as a farmer does his farm. Since these 
facilities are built and operated primarily to benefit the 
public and since their operation is essentially a public 
function, it is subject to state regulation, and . . . such 
regulation may not result in an operation of these facili­
ties, even by privately owned companies, which uncon­
stitutionally interferes with and discriminates against 
interstate commerce.” Marsh v. Alabama, 326 U. S. 501 
(1946). In that case, the state punished the crime of 
disturbing religious literature contrary to the wishes of 
the owner of town under “Title 14, § 426 of the 1940 Ala­
bama Code which makes it a crime to enter or remain 
on the premises of another after having been warned not 
to do so.” The conviction was reversed and remanded 
as being an unconstitutional deprivation by state action 
of freedom of speech as an element of due process and 
equal protection.

In Valle v. Stengel, 176 F. (2d) 697 (3d Cir. 1949), 
the arrest and eviction took place on a privately owned

t



19

amusement park to which all the public were admitted 
and patronage to which was encouraged through adver­
tising. The negroes and the white person acting in con­
cert with them, after being admitted to the park, were 
refused admission to the pool. The manager was aided 
and abetted by the police whom he called, so that the 
police act was attributed to the corporation and its man­
ager and treated as their own. This state action was 
held to constitute a deprivation of equal protection of 
the right to contract in pursuit of happiness through use 
of property.

This is closely comparable to the situation of de­
fendants, admitted to the store but not to the counter.

B. The decision below conflicts with decisions of 
this Court securing the Fourteenth Amendment right to 
freedom of expression.

1. Defendants’ presence at the lunch counter was 
a form of expression, a mean of communication; in the 
broad sense, it was “speech.”

“Speech” protected by the United States Constitu­
tion includes modes of expression other than by voice or 
by press. It includes “a significant medium for the com- 
.munication of ideas.” Joseph Burstyn, Inc., v. Wilson, 343 
W. S. 495 (1952 h )  It includes activity forbidden by a stat­
ute''making"!!; a misdemeanor to “go near to or loiter 
about the premises or place of business of such other per­
sons . . It includes such activity “in appropriate 
places” even though the picketing was on grounds of a 
privately owned business. Thornhill v. Alabama, 310 U. S. 
88, 106 (1940).



20

Speech in the form of boycotting is protected. 
Giboney v. Empire Storage ancl lee Co., 336 U. S. 490 
(1949). This is true also when it is used to end dis­
criminatory labor practices. Neia Negro Alliance v. Sani­
tary Grocery Co., 303 U. S. 552 (1938).

“Speech” in the form of “unfair” lists, picketing 
to deter showing a certain motion picture, to deter oper­
ating shops on Sunday, and to indicate a shop is not 
Kosher, has been held to be protected free speech by courts 
of other states.

" Defendants’ act did not constitute such speech as 
must be limited; it did not incite to riot as in Feiner v. 
New York, 340 U. S. 315 (1951); rather it was subject 
to protection even had it created dissatisfaction with con­
ditions as they are, as in Terminiello v. Chicago, 337 U. S. 
1 (1949).

Hence defendants’ act in sitting quietly in a place 
of business, for the purpose of expressing disapproval 
of a policy of racial discrimination practiced there, con­
stituted a form of speech. As such it is protected against 
interference by the state.

f  2. “The freedom of speech and of the press secured
/ by the First Amendment against abridgment by the 
' United States is similarly secured to all persons by the 

Fourteenth against abridgment by a state.” Schneider v. 
State, 308 U. S. 147 (1939).

When agents of the state (police officers, the dis­
trict attorney, this Honorable Court) arrested, charged 
and tried defendants under La. R. S. 14:59(6) (1960),

t



21

thereby preventing defendants from continuing their ex­
pression of disapproval of policy of racial discrimination 
by the management of the lunch counter, the State de­
prives defendants of an element of liberty guaranteed to 
them under the Fourteenth Amendment against such state 
action.

Hence, even if it be conceded arguendo that the 
statute might be constitutionally enforced in other cir­
cumstances, it may not be so when its enforcement limits 
a form of communication of ideas, as has been done in 
the present instance.

Rather than being arrested for their expression 
of opinion, defendants had a right to expect police pro­
tection to preserve order. Sellers v. Johnson, 163 F. (2d) 
877 (8th Cir. 1947), cert, denied, 332 U. S. 851 (1948).

C. The decision of the trial judge in refusing the 
petitioners an opportunity to establish actual concert be­
tween the store proprietor and the police violated petition­
ers’ right to a fair and impartial trial as guaranteed by 
the Fourteenth Amendment.

The trial judge refused to allow the petitioners to 
introduce evidence which would tend to show concerted 
action between the State law enforcement officers and 
McCrory’s store manager. (See Bill of Exception No. 2, 
page 85 of transcript.) The highly publicized statement 
of both the Mayor of the City of New Orleans, supra, 
page 6, and the Chief of Police, supra, page 4, form an 
important backdrop within which to decide this issue.

This expression of policy by 
Superintendent of Police of the City

the Mayor and the 
of New Orleans oper-



22

fated as a prohibition to all members of the Negro race 
! from seeking to be served at lunch counters whether 
\ or not the proprietor was willing to serve them./ More 

in point, the pronouncement of policy by the leaders 
of the municipal authority operated to constructively 
coerce the proprietors of business establishments not to 

‘integrate lunch counters at the risk of suffering munici­
pal censure or punishment.

The Supreme Court, in Civil Rights Cases, 109 
U. S. 3, 17, 27 L. Ed. 835, 841, 3 Supreme Court 18, ruled 
that racial discriminations which are merely the wrong­
ful acts of individuals can remain outside the ban of 
the Constitution only so long as they are unsupported by 
state authority in the shape of laws, customs, or judi­
cial or executive proceedings. In order to successfully 
attack the administration of the statute, it was neces­
sary that defendants prove concert between the store 
manager and the police. This was relevant evidence, the 
exclusion of which was prejudicial to the defendants as 
it deprived them of the only means they had to show that 
they were the victims of prohibited state action rather 
than protected personal rights of the proprietor.

vl II.

T he Public  Im portance of the  Issues Presented.
XT This case presents issues posed by numerous 

f similar demonstrations throughout the nation which have 
\  resulted in widespread desegregation and also in many



23

(similar cases now pending in the state and federal courts. 
Petitioners need not multiply citations to demonstrate that 
during the past year thousands of students throughout 
the nation have participated in demonstrations like those 
for which petitioners have been convicted.

A comprehensive description of these “sit-in” pro­
tests appears in Pollitt, Dime Store Demonstration: Events 
and Legal Problems of the First Sixty Days, 1960 Duke 
Law Journal 315 (1960). These .demonstrations have 
occurred in Alabama, Arkansas, Florida, Georgia, Louisi­
ana, North Carolina, South Carolina, Tennessee, Texas, 
Virginia and elsewhere. Pollitt, supra, passim.

In a large number of places this nationwide pro- 
( test has prompted startling changes at lunch counters 
« throughout the South, and service is now afforded in many 
^establishments on a nonsegregated basis. The Attorney 

General of the United States has announced the end of 
segregation at public lunch counters in 69 cities, New 
York Times, August 11, I960, page 14, col. 5 (late city 
edition), and since that announcement the number of such 
cities has risen above 112, Neiv York Times, Oct. 18, 1960, 
page 47, col. 5 (late city edition).

^  """in many instances, however, these demonstrations, 
/a s  in the case at bar, have resulted in arrests and crim- 

I inal prosecutions which, in their various aspects, pre- 
V^ent as a fundamental issue questions posed here,/ that



24

is, may the state use its power to compel racial segre­
gation in private establishments which are open to the 
public and to stifle protests against such segregation. 
Such cases having been presented to the Supreme Court 
of Appeals of Virginia,3 the Supreme Court of North 
Carolina,4 the Supreme Court of Arkansas,5 the Court 
of Criminal Appeals of Texas," the Court of Appeals of 
Alabama,7 the Court of Appeals of Maryland,8 several 
South Carolina appellate courts,0 and the Georgia Court 
of Appeals.10 Numerous other cases are pending at the 
trial level.

It is, therefore, of widespread public importance 
(  that the Court consider the issues here presented so that

3 R a y m o n d  B. R a n d o lp h ,  J r . ,  V. C o m m o n w e a l t h  o f  V a .  (No. 5233, I 9 6 0 ) .
4 S t a t e  o f  N . C. v. F o x  a n d  S a m p s o n  (No. 442, Suprem e Court, F a l l

Term  1960).
5 C h e s t e r  B r ig g s ,  e t  a l . ,  V. S t a t e  o f  A r k a n s a s  (No. 4992) (consolidated

w i t h  S m i t h  v. S t a t e  o f  A r k . ,  No. 4994, and L u p p e r  v. S t a t e  of  
A r k . ,  No. 4997).

6 B r i s c o e  v. s t a t e  o f  T e x a s  (C ourt of Crim. App., 1960, No. 32347)
and  re la ted  cases (decided Dec. 14 ,  1 9 6 0 ;  conviction reversed on 
ground th a t indictm ent charging in a lternative  invalid fo r vague­
ness).

n B e s s ie  C o le  V. C i ty  o f  M o n t g o m e r y  (3 rd  Div. Case No. 57) (together 
w ith seven o ther cases, Case Nos. 5S-64).

8 W i l l i a m  L. G r i f f i n ,  e t  a! .,  V. S t a t e  o f  M a r y l a n d ,  No. 248, Septem ber
Term  1960 (two appeals in one re c o rd ) ; see related  civil action 
Sub nom. G r i f f i n ,  e t  a l . ,  V. C o ll in s ,  e t  a l . ,  187 F. Supp. 149 (D.C. 
D.Md. 1960).

9 C i ty  o f  C h a r l e s t o n  v. M itc h e l l ,  e t  a l . ,  (C ourt of Gen. Sess. fo r Charles­
ton C ounty) (appeal from  R ecorders Ct.) ; S t a t e  v. R a n d o lp h ,  e t  
a l .,  (C ourt of Gen. Sess. fo r , Sum ter County) (appeal from  
M agistrates Ct.) ; C i ty  o f  C o l u m b i a  v. B o u ie ,  e t  a!.,  (C ourt of 
Gen. Sess. fo r R ichland C ounty) (appeal from  R ecorders C t.). 

l« M. L .  K in g ,  J r . ,  v. S t a t e  o f  G e o r g i a  (two appeals: No. 3 8 6 4 8  and 
No. 3 8 7 1 8 ) .

i



25

the lower courts and the public may be guided authorita­
tively with respect to the constitutional limitations on 
state prosecutions for engaging in this type of protest.

B. The holding below, if allowed to stand, will in 
effect undermine numerous decisions of this Court strik­
ing down state enforced racial discrimination. For ex­
ample, the discrimination on buses interdicted by the 
Constitution in Gayle v. Browder, 352 U. S. 903, aff’d 
142 F. Supp. 707, could be revived by convictions for 
disturbing the peace. In the same manner, state en­
forced prohibitions against members of the white and 
colored races participating in the same athletic contests, 
outlawed in Dorsey v. State Athletic Commission, 168 F. 
Supp. 149, aff’d 359 U. S. 533, could be accomplished. 
Indeed, segregation of schools, forbidden by Brown v. 
Board of Education, 347 U. S. 483, and innumerable cases 
decided since that time, especially those affecting Louisi­
ana, e. g., Orleans Parish School Board v. Bush, 242 F. 
(2d) 156 (5th Cir. 1957), cert, denied 354 U. S. 921, 
might also be accomplished by prosecutions for disturb­
ing the peace even though no disturbances in fact occurred.

The holding below, if allowed to stand, would be 
completely subversive of the numerous decisions through­
out the federal judiciary outlawing state-enforced racial 
distinctions. Indeed, the segregation here is perhaps more 
invidious than that accomplished by other means for it is 
not only based upon a vague statute which is enforced by 
the police according to their personal notions of what con-



26

stitutes a violation and then sanctioned by state courts 
but it suppresses freedom of expression as well.

CONCLUSION.
WHEREFORE, for the foregoing reasons, it is 

respectfully submitted that the petition for writ of certio­
rari should be granted.

Respectfully submitted,
JOHN P. NELSON, JR.,

702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLL1NGS,

211 Dryades Street,
New Orleans, Louisiana, 

Attorneys for Petitioners.

i



3̂

m ixliii

a“\  r'-trr
U U  i. U  id

RUDOLPH LOMBARD, cET

versus

AL„
Petitioners,

STATE OF LOUISIANA.

A P P E N D I X  TO  T H E  P E T I T I O N  F O R  W R I T  O F  C E R ­
T I O R A R I  TO  T H E  S U P R E M E  C O U R T  O F  T H E  

S T A T E  O F  L O U I S I A N A .

JOHN P. NELSON, JR.,
702 Gravier Building,

* . 585 Gravier Street,
... - . New Orleans 12,. Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

2211 Dryades Street,
New Orleans, Louisiana, 

Attorneys for Petitioners.

Meatsorowy £  Co., "Tba Brief SpgcSalbta". 430 Cto-farea St.. N. O., ..La-..



APPENDIX TO THE PETITION FOR WRIT OF CER­
TIORARI TO THE SUPREME COURT OF THE 

STATE OF LOUISIANA.



2

SUPREME COURT 
STATE OF LOUISIANA

NO. 45,491

STATE OF LOUISIANA 

VS.

SIDNEY LANGSTON GOLDFINCH, JR., 
RUDOLPH LOMBARD, ET AL.

APPEAL FROM THE CRIMINAL DISTRICT COURT 
PARISH OF ORLEANS

HONORABLE J. BERNARD COCKE, JUDGE 
SUMMERS, Justice

The four defendants herein, a white and three 
Negroes, were jointly charged in a bill of information 
filed by the District Attorney of Orleans Parish with 
criminal mischief in that on September 17, 1960, they 
took possession of the lunch counter at McCrory’s Store, 
and remained there after being ordered to leave by the 
manager in violation of the provisions of Title 14, Section 
59 of the Revised Statutes of the State of Louisiana, the 
pertinent portions of which provide:

“Criminal mischief is the intentional performance 
of any of the following acts:

* » #



3

(6) Taking temporary possession of any part or 
parts of a place of business, or remaining in a place 
of business after the person in charge of such busi­
ness or portion of such business has ordered such 
person to leave the premises and to desist from 
the temporary possession of any part or parts of 
such business.”

The defendants entered McCrory’s store in New 
Orleans on the morning in question and took seats at one 
of the counters therein. McCrory’s is part of a national 
chain operating in thirty-four states, owned by McCrory 
Stores, Incorporated. The New Orleans establishment 
is classified as a “variety merchandise” type store, made 
up of approximately twenty departments and open to the 
general public. Included in its services to the public are 
eating facilities composed of a main restaurant that seats 
210, a counter for colored persons that seats 53, a refresh­
ment bar that seats 24, and two stand-up counters.

The defendants were refused service at the counter 
where they were seated and which was reserved for 
whites, the manager was called, the counter was closed, 
and the defendants were requested to leave - - in accord­
ance with the policy of the store, fixed and determined 
by the manager in catering to the desires of his cus­
tomers - - or to seek service at a counter in the store pro­
viding service for Negroes. Upon their refusal, the police, 
who had been summoned by the manager, arrested them. 
They were subsequently tried and convicted of having 
violated the foregoing statute.



4

Defendants filed a motion to quash, motion for a 
new trial and a motion in arrest of judgment, all of which 
were overruled, and objected to the refusal of the Court 
to permit the inti-oduction of certain evidence to which 
bills of exceptions were reserved.

These motions and bills of exceptions pertain pri­
marily to the contention of defendants that the statute 
under which they were convicted, in its application against 
Negroes, is unconstitutional and discriminatory in that 
it denies to them the guarantees afforded by the Due 
Process and Equal Protection clauses of the Constitution 
of the United States and the Constitution of the State of 
Louisiana, particularly that afforded by the Fourteenth 
Amendment to the Constitution of the United States.

There should be no doubt, and none remains in our 
minds, about the applicability of the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
to the state rather than private persons. The second 
sentence contains the phrases, “No State shall make or 
enforce any law * * and “nor shall any State deprive 
any person * *

Since the decision in the Civil Rights Cases, 109 
U. S. 3, 27 L. Ed. 835, 3 S. Ct. 18, it has been unequivo­
cally understood that the Fourteenth Amendment covers 
state action and not individual action. Mr. Justice Brad­
ley, speaking for the majority in these cases, stated:

“The first section of the Fourteenth Amendment 
(which is the one relied on), after declaring who 
shall be citizens of the United States, and of the 
several States, is prohibitory in its character, and 
prohibitory upon the States * *



5

“It is State action of a particular character 
that is prohibited. Individual invasion of individ­
ual rights is not the subject-matter of the amend­
ment.”

The foregoing concrete language indicates emphati­
cally that positive action by state officers and agencies 
is the contemplated prohibition of the amendment. 43 Cor­
nell L.Q. 375. Mr. Justice Bradley further stated that 
the wrongful act of an individual is not state action “if 
not sanctioned in some way by the State, or not done under 
State authority, * * *.” This proposition has been con­
stantly reiterated by the highest court of our land. In 
Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 
836, it was stated thusly: “Since the decision of this 
Court in the Civil Rights Cases, 109 U. S. 3 (1883), the 
principle has become firmly embedded in our constitu­
tional law that the action inhibited by the first section 
of the Fourteenth Amendment is only such action as 
may fairly be said to be that of the States. That Amend­
ment erects no shield against merely private conduct, 
however discriminatory or wrongful.”

We are, therefore, called upon to determine 
whether the enactment of the questioned statute is such 
action by the State as is prohibited by the Fourteenth 
Amendment. In this connection it is recognized that the 
enactment of a statute which on its face provides for dis­
crimination based upon race or color is a violation of the 
Fourteenth Amendment and constitutes state actions 
which that constitutional amendment prohibits.

A reading of the statute readily discloses that it 
makes no reference to any class, race or group and applies



6

to all persons alike, regardless of race. It confers no 
more rights on members of the white race than are con­
ferred on members of the Negro race, nor does it provide 
more privileges to members of the white race than to 
members of the Negro race. Williams v. Howard John­
son’s Restaur-ant. 268 F. 2d 845. The statute under con­
sideration here stands no differently than does one im­
posing a penalty upon a person who enters without right 
the posted lands of another. It is not such a law as would 
be marked with the characteristic that it has been promul­
gated by our State for a special design against the race 
of persons to which defendants belong. To the contrary 
it is such a law that finds widespread acceptance through­
out America. It is a legislative recognition of rights 
accorded to the owners of property similar to those found 
in almost all states of our nation. Mr. Justice Black 
in Martin v. City of Struthers, 319 U. S. 141, 87 L. Ed. 
1313, 63 S. Ct. 862, referring to a statute of Virginia 
similar in scope to that here involved, said: “Tradi­
tionally the American law punishes persons who enter 
onto the property of another after having been warned 
by the owner to keep off. General trespass after warn­
ing statutes exist in at least twenty states, while similar 
statutes of narrower scope are on the books of at least 
twelve states more.”

Not being impressed with features which would 
make it as discriminatory and a fortiori unconstitutional,'
l B uchanan v. W arley, 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16; Flem ­

ming- v. South C arolina E lectric and Gas Co., 224 F. (2d) 752, 
appeal dismissed, 351 U.S. 901; Brow der v. Gayle, 142 F. Supp. 
707, a ffirm ed , 352 U.S. 903; Evers v. Dwyer, 358 U.S. 202, 3 L. 
E d. (2d ) 222, 79 S. Ct. 178; Dorsey v. S ta te  A thletic Comm., 
168 F . Supp. 149, appeal dismissed and certio rari denied, 359 
U .S. 533.

i



7

we conclude that the constitutionality of the statute must 
be presumed. State v. Winehill & Rosenthal, 147 La. 781, 
86 So. 181, writ of error dismissed 258 U. S. 605; Pana­
ma R. R. Co. v. Johnson, 264 U. S. 375, 68 L. Ed. 748, 
44 S. Ct. 391; Richmond Screw Anchor Co. v. United 
States, 275 U. S. 331, 72 L. Ed. 303, 48 S. Ct. 194; State 
v. Grosjean, 182 La. 298, 161 So. 871; State v. Saia, 212 
La. 868, 33 So. 2d 665; Schwegmann Bros. v. La. Board 
of Alcoholic Beverage Control, 216 La. 148, 43 So. 2d 
248; Olivedell Planting Co. v. Town of Lake Providence, 
217 La. 621, 47 So. 2d 23; Jones v. State Board of Edu­
cation, 219 La. 630, 53 So. 2d 792; State v. Romes, 223 
La. 839, 67 So. 2d 99; State v. McCrory, 237 La. 747, 112 
So. 2d 432; Michon v. La. State Board of Optometry Ex­
aminers, 121 So. 2d 565; 11 Am. Jur., Const. Law, Sec. 97.

Furthermore, courts will not hold a statute uncon­
stitutional because the legislature had an unconstitutional 
intent in enacting the statute which has not been shown 
here. Doyle v. Continental Insurance Co., 94 U. S. 535, 
24 L. Ed. 148; Daniel v. Family Security Life Ins. Co., 
336 U. S. 220, 93 L. Ed. 632, 69 S. Ct. 550; State v. 
County Comm., 224 Ala. 229, 139 So. 243; Morgan v. Ed­
mondson, 238 Ala. 522, 192 So. 274. The courts will test 
a statute as it stands, without considering how it might 
be enforced. James v. Todd. 267 Ala, 495, 103 So. 2d 19, 
appeal dismissed, 358 U. S. 206; Clark v. State, 169 Miss. 
369, 152 So. 820. Courts in considering constitutionality 
of legislation cannot search for motive. Shuttlesworth 
v. Birmingham Board of Education, 162 F . Supp. 372, 
affirmed, 358 U. S. 101.



g

Defendants further assert in their attack upon 
the statute that by content, reference and position of con­
text it is designed to apply to, and be enforced in an arbi­
trary manner against, members of the Negro race and 
those acting in' concert with them. In aid of this assertion 
certain House bills of the Louisiana Legislature for 1960, 
introduced in the same session with the contested statute, 
were offered in evidence.2 All of these bills did not be­
come law, but some did.3 It is declared that this law 
and the others enacted during the same session were de­
signed to apply to and be enforced against, in an arbi­
trary manner, members of the Negro race. We have 
carefully reviewed the provisions of these bills referred 
to which were enacted into law and nowhere in their con­
tent or context do we find that any of them seek to dis­
criminate against any class, group, or race of persons. 
We therefore find no merit in this contention and, accord­
ingly, dismiss it as being unsupported.

But the primary contention here, conceding the 
constitutionality of the statute on its face, has for its basis 
that the statute is unconstitutional in its application and 
the manager and employees of the store were acting in 
conceit with the municipal police officers who made the 
arrest, the district attorney in charging defendants, and 
the court in trying defendants’ guilt; that these acts con­
stitute such state action as is contemplated by the prohi­
bition of the Fourteenth Amendment. We have noted,
* See O fficial Jo u rn a l of the Proceedings of the House of R epresenta­

tives o f th e  S ta te  of Louisiana, 23rd R egular Session, 1960, 
H ouse Bills 343-366, inclusive.

S See Acts 68, 69, 70, 73, 76, 77, 78, 79, and 81, represen ting  the only 
H ouse Bills re fe rre d  to in Footnote 1, which w ere enacted  by 
th e  L egislature.

t



9

however, that in order for state action to constitute an 
unconstitutional denial of equal protection to the defend­
ants here that action must provide for discrimination 
of a nature that is intentional, purposeful, or systematic. 
Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, 64 S. Ct. 
397; Charleston Federal Savings & Loan Assn. v. Alder- 
son, 324 U. S. 182, 89 L. Ed. 857, 65 S. Ct. 624; City of 
Omaha v. Lewis & Smith Drug Co., 156 Neb. 650, 57 
N. W. 2d 269; Zorack v. Clauson, 303 N. Y. 161, 100 
N. E. 2d 463; State v. Anderson, 206 La. 986, 20 So. 2d 
288; City of New Orleans v. Levy, 233 La. 844, 98 So. 2d 
210; 12 Am. Jur., Constitutional Law, Sec. 566. Nor is 
a discriminatory purpose to be presumed. Terrance v. 
Florida, 188 U. S. 519, 47 L. Ed. 572, 23 S. Ct. 402.

The defendants sought to introduce evidence to 
establish. that the action of the manager of McCrory’s 
was provoked or encouraged by the state, its policy, or 
officers, and they would have this Court hold that this 
action of McCrory’s was not its own voluntary action, but 
was influenced by the officers of the state. The conclu­
sion contended for is incompatible with the facts. Rather, 
the testimony supports a finding that the manager of Me- 
Crory’s had for the past several years refused service to 
Negroes, that the policy of the store was established by 
him, that he had set out the policy and followed it con­
sistently; that Negroes had habitually been granted access 
to only one counter within the store and a deliberately 
provoked mischief and disturbance such as the one he 
complained of here had not previously occurred. In the 
past other Negroes who had mistakenly taken seats at 
the counter in question and who were told to move had



10

cooperated and recognized the requests of the McCrory’s 
employees and had sat at the counter set aside for them.

Even under the provision of the questioned statute 
it is apparent that a prosecution is dependent upon the 
will of the proprietor, for only after he has ordered the 
intruder to relinquish possession of his place of business 
does a violation of the statute occur. The state, there­
fore, without the exercise of the proprietor’s will can 
find no basis under the statute to prosecute.

These facts lead us to the conclusion that the exist­
ence of a discriminatory design by the state, its officers 
or agents, or by its established policy, assuming such 
could have been shown, would have had no influence 
upon the actions of McCrory’s. The action of bringing 
about the arrest of the defendants, then, was the inde­
pendent action of the manager of the privately owned 
store, uninfluenced by any governmental action, design, 
or policy - - state or municipal - - and the arrest was accom­
plished in keeping with McCrory’s business practice estab­
lished and maintained long before the occasion which de­
fendants seek to associate with a discriminatory design by 
the state. Furthermore, it is quite clear from the oral 
argument of defense counsel that this prosecution was 
sought after and provoked by the defendants themselves, 
and in reality the conviction they have sustained is the 
result of their own contrivance and mischief and is not 
attributable to state action.

The business practice which McCrory’s had adopted 
was recognized then and is now recognized by us to be a



11

practice based upon rights to which the law gives sanction. 
It has been expressed as follows:

“The right of an operator of a private enterprise 
to select the clientele he will serve and to make such selec­
tion based on. color, if he so desires, has been repeatedly 
recognized by the appellate .courts of this nation * * * The 
owner-operator’s refusal to serve defendants, excent in the 
portion of the building designated by him, impaired no 
rights of defendants.’’ See State v. Clyburn, 247 N. C. 
455, 101 S. E. 2d 295, and authorities therein cited. This 
right of the operator of a private enterprise is a well- 
recognized one as defendants concede. “The rule that, 
except in cases of common carriers, innkeepers and similar 
public callings, one may choose his customers is not ar­
chaic.” Greenfield v. Maryland Jockey Club, 190 Md. 96, 
57 A. 2d 335.

The right to prevent a disturbance on one’s private 
property and the right to summon law enforcement offi­
cers to enforce that right are rights which every pro­
prietor of a business has whenever he refuses to deal 
with a customer for any reason, racial or otherwise, and 
the exercise of those rights does not render his action 
state action or constitute a conspiracy between the pro­
prietor and the peace officer which would result in state 
action. Slack v. Atlantic White Tower System, Inc., 181
F. Supp. 124, affirmed, 284 F. 2d 746.

There is presently no anti-discrimination statute 
in Louisiana, nor is there any legislation compelling the



12

segregation of the races in restaurants or places where 
food is served. There being no law of this State, statu­
tory or decisional, requiring segregation of the races in 
restaurants or places where food is served, the contention 
that the action of the officials here is discriminatory is 
not well-founded for that action is not authorized by 
state law.

The defendants have sought to show through evi­
dence adduced at the trial that there is no integration 
of the races in- eating places in New Orleans and, there­
fore, the custom of the state is one that supports segre­
gation and hence state action is involved. This argu­
ment overlooks the fact that the segregation of the races 
prevailing in eating places in Louisiana is not required 
by any statute or decisional law of the State or other 
governmental body, but is the result of the business choice 
of the individual proprietors, both white and Negro, cater­
ing to the desires and wishes of their customers, regard­
less of what may stimulate and form the basis of the 
desires. Slack v. Atlantic White Tower System, Inc., 
supra.

To the same effect is the language of the Court in 
Williams v. Howard Johnson’s Restaurant, supra, viz.:

“This argument fails to observe the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and so­
cial practices.

* * *



13

“The customs of the people of a state do not 
constitute state action within the prohibition of the 
Fourteenth Amendment.”

The effect of the contentions of defendants is to 
urge us to disregard and ignore certain rights of owners 
and taxpayers in the enjoyment of their property, un­
affected by any public interest, in order that they may 
impose upon the proprietor their own concept of the 
proper use of his property unsupported by any right under 
the law or Constitution to do so. We cannot forsake 
the rights of some citizens and establish rights for others 
not already granted by law to the prejudice of the former; 
this is a legislative function which it is not proper for 
this Court to usurp. Tamalleo v. New Hampshire Jockey 
Club, Inc., 102 N. H. 547, 163 A. 2d 10. The funda­
mental propositions presented here are not novel; we treat 
them as settled and their change is beyond our province.

The conviction and sentence are affirmed.

Rehearing denied, Oct. 4, 1961.

CERTIFICATE OF SERVICE

I hereby certify under Rule 33!3-bi that service 
has been made on the State of Louisiana, respondent, of 
this appendix to petition for certiorari, by serving a copy 
hereof by mailing same to Hon. Jack P. F. Gremillion, 
Attorney General of the State of Louisiana, addressed to 
him at his office in the State Capitol, Baton Rouge, La., 
and deposited first class postage prepaid in the main



14

office of the United States Post Office in the City of 
New Orleans, La.

New Orleans, La.

JOHN P. NELSON, JR.,
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

2211 Dryades Street,
New Orleans, Louisiana,

Attorneys for Petitioners



IN THE

OCTOBER TERM, 1961

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

RESPONSE TO THE PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT 

OF THE UNITED STATES.

JACK P. F. GREMILLION, 
Attorney General,
Capitol Building,
Baton Rouge, La.;

M. E. CULLIGAN,
Assistant Attorney General, 
104 Supreme Court Bldg., 
New Orleans, La.;

RICHARD A. DOWLING, 
District Attorney,
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.;

J. DAVID McNEILL,
Assistant District Attorney, 
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.

M on tgom ery  & Co.. “T h e B r ie f  S p e c ia lis ts " , 480 C h a r t re s  S t.,  N . Q„ L a. < L > »



INDEX.

Page
REASONS FOR DENYING THE WRIT 1-4

CONCLUSION ......................................................... 3-4

APPENDIX “A” 7



2

preme Court and that they have failed to point out 
wherein any finding of fact upon which a conclusion of 
law was based or that any conclusion of law by the Lou­
isiana Supreme Court is in error.

(2)
The questions presented on page two of the peti­

tion, paragraph one, is totally in error for, as shown by 
the second paragraph on page three of the appendix, the 
factual situation shows the record was replete with evi­
dence of their guilt.

(S)

Paragraph two is answered by the statute itself, 
which shows there is nothing vague or indefinite about it.

t t )

Paragraph three of the questions presented is again 
absolutely untrue as the facts and the opinion of the 
Louisiana Supreme Court show that these defendants were 
requested to leave the premises in accordance with the 
policy of the store, fixed and determined by the manager 
in catering to the desire of his customers, and not as any 
part of an alleged policy of the State of Louisiana of 
racial discrimination, there being no such statutes of the 
State of Louisiana.

• (5)
Paragraph four is a conclusion of law of the pleader 

and is not a complete statement of law as freedom of



3

speech and expression, under the decisions of this Court, 
can be limited.

( 6)

Paragraphs five, six and seven have all been fully 
qnswei*ed by the decision of the Louisiana Supreme Court 
and all of which were very fully and completely answered 
by the trial judge, Honorable J. Bernard Cocke, in giving 
his written reasons for overruling the motion to quash 
in pages 32 to 73 of the transcript which we have attached 
in printed form as Appendix “A,” and included in the 
appendix Judge Cocke’s per curiams to all of the bills of 
exceptions taken by the defendants.

(V
On page 23, paragraph two of the application for 

the writ it is stated that “in a large number of places 
this nationwide protest has prompted startling changes at 
lunch counters throughout the South and service is now 
afforded in many establishments on a nonsegregated 
basis.”

As shown on page 11 of the appendix by petitioners, 
the Louisiana Supreme Court points out there is no anti- 
discrimination statute in Louisiana nor is there any leg­
islation compelling the segregation of the races in restau­
rants or places where food is served.

(8)
Inasmuch as we believe that the Louisiana Supreme 

Court has decided all the constitutional issues in this mat­
ter in accordance with the existing jurisprudence of Your



4

Honors, as shown in the opinions cited, the application 
for the writ should be denied.

Respectfully submitted,

JACK P. F. GREMILLION, 
Attorney General,
Capitol Building,
Baton Rouge, La.;

M. E. CULLIGAN,
Assistant Attorney General, 
104 Supreme Court Bldg., 
New Orleans, La.;

RICHARD A. DOWLING, 
District Attorney,
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.;

J. DAVID McNEILL,
Assistant District Attorney, 
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.



5

CERTIFICATE OF SERVICE.
I, M. E. Culligan, Member of the Bar of the Su­

preme Court of the United States, hereby certify that a 
copy of this Response to the Petition for Writ of Cer­
tiorari to the Supreme Court of the United States and 
the appendix thereto, has been mailed by United States 
mail, postage prepaid, to attorneys for the defendants, 
namely, John P. Nelson, Jr., 702 Gravier Building, 535 
Gravier Street, New Orleans 12, Louisiana, and Lolis
E. Elie, Nils R. Douglas, Robert F. Codings, 2211 Dryades 
Street, New Orleans, Louisiana.

Assistant Attorney General.



7

APPENDIX “A”

DISTRICT COURT WRITTEN JUDGMENT ON

STATE OF LOUISIANA NO. 168-520—

J U D G E M E N T
The defendants, Rudolph Lombard, a colored male, 

Oretha Castle, a colored female, Cecil Carter, Jr., a colored 
male, and Sydney L. Goldfinch, Jr., a white male, are 
jointly charged in a bill of information which reads as 
follows:

“* * * that on the 17th. of September, 1960, each 
did wilfully, unlawfully and intentionally take 
temporary possession of the lunch counter and res- . 
taurant of McCrory’s Store, a corporation author­
ized to do business in the State of Louisiana, lo­
cated at 1005 Canal Street, and did wilfully, unlaw­
fully and intentionally remain in and at the lunch 
counter and restaurant in said place of business 
after Wendell Barrett the manager, a person in 
charge of said business, had ordered the said Syd­
ney Langston Goldfinch, Jr., Rudolph Joseph Lom­
bard, Oretha Castle and Cecil Winston Carter, Jr., 
to leave the premises of said lunch counter and 
restaurant, and to desist from the temporary pos­
session of same, contrary, etc.”

MOTION TO QUASH.

VERSUS
SIDNEY L. GOLDFINCH, JR. 

ET. AL.

SECTION “E” 
CRIMINAL DISTRICT

COURT
PARISH OF ORLEANS



8

The particular statute under which defendants are 
charged is L.S.A.-R.S. 14:59 (6) which reads as follows:

“Criminal mischief is the intentional per­
formance of any of the following acts: * * *

“ (6) taking temporary possession of any 
part or parts of a place of business, or remain­
ing in a place of business after the person in 
charge of said business or portion of such busi­
ness has ordered such person to leave the prem­
ises and to desist from the temporary possession 
of any part or parts of such business.”

The defendants moved the Court to quash the bill 
of information.

As cause for quashing the bill, defendants alleged 
“that movers were deprived of the due process of law and 
equal protection of law guaranteed by the Constitution 
and laws of the State of Louisiana and of the United 
States of America as follows:”

“ (1) That the statutes under which the defend­
ants are charged are unconstitutional and in con­
travention of the Fourteenth Amendment of the 
Constitution of the United States of America, and 
in contravention of the Constitution of the State 
of Louisiana, in that they were enacted for the 

.specific purpose and intent to implement and fur­
ther the state’s policy of enforced segregation of 
races.’
“ (2) That the said defendants are being deprived 
of their rights under the “equal protection and due



9

process” clauses of both the Constitution of Louisi­
ana and of the United States of America in that the 
said laws under which the bill of Information is 
being enforced against them arbitrarily, capri­
ciously and diseriminately, in that it is being ap­
plied and administered unjustly and only against 
persons of the Negro race and/or white persons 
who act in concert with members of the Negro 
race.’
“ (3) That the statutes under which the prosecu­
tion is based and the Bill of Information founded 
thereon, are both so vague, indefinite and uncertain 
as not to establish an ascertainable standard of 
guilt.’
“ (4) That the statutes under which the prose­
cution is based, exceed the police power of the 
state in that they have no real, substantial or ra­
tional relation to the public safety, health, morals, 
or general welfare, but have for their purpose and 
object, governmentally sponsored and enforced sep­
aration of races, thus, denying the defendants their 
rights under the first, thirteenth and fourteenth 
Amendment to the United States Constitution and 
art. I Section 2 of the Louisiana Constitution.’
“ (5) That the bill of information on which the 
prosecution is based, does nothing more than set 
forth a conclusion of law, and does not state with 
certainty and sufficient clarity the natui'e of the 
accusation.’
“ (6) That the statutes deprive your defendants of 
equal protection of the law in that it excludes from



10

its pi-ovisions a certain class of citizen, namely those 
who are at the time active with others in further­
ance of certain union activities.’
“ (7) That the' refusal to give service because of 
race, the arrest and subsequent charge are all un­
constitutional acts in violation of the Fourteenth 
Amendment of the United States Constitution in 
that the act of the Company’s representative was 
not the free will act of a private citizen but rather 
an act which was encouraged, fostered and pro­
moted by state authority in support of a custom 
and policy of enforced segregation of races at lunch 
counters.’
“ (8) That the arrest, charge and prosecution of 
defendants are unconstitutional, in that it is the 
result of state and Municipal action, the prac­
tical effect of which is to encourage and foster 
discrimination by private parties.”

In support of their motion to quash, the defendants 
offered the testimony of the following named witnesses, 
deLesseps S. Morrison, Mayor of the City of New Orleans, 
Joseph I. Giarrusso, Superintendent of Police, and Wen­
dell Barrett, Manager of McCrory’s 5 and 10 Cents 
Store.

The Mayor testified in substance as follows:
That the Superintendent of Police serves under his 

direction: that he and the City Government “set the lines 
or direction of policy to the police department.”

That a statement appearing in the Times-Picayune 
dated September 13, 1960, page 7 of Section 1, was an



11

accurate report of a statement issued by him following 
the initial “sit-in” and follow up demonstration at the
F. W. Woolworth Store on September 9, 1960.

The essence of the Mayor’s statement filed in evi­
dence was, that he had directed the superintendent of 
police not to permit any additional sit-in demonstrations 
or so-called peaceful picketing outside retail stores by 
sit-in demonstrators or their sympathizers; that it was his 
determination that the community interest, the public 
safety, and the economic welfare of the city required that 
such demonstrations cease and that they be prohibited 
by the police department.

The Mayor further testified:
That he did not know of any places in the City of 

New Orleans, where whites and negroes were served at 
the same lunch counter.

The Superintendent of Police identified as accu­
rate a statement of his appearing in the Times-Picayune, 
Page 18, Section 1, dated September 10, 1960; that his 
reason for issuing the statement was that a recurrence 
of the sit-in demonstration as had occurred at the Wool- 
worth Store on September 9, 1960, would provoke disorder 
in the community.

In his statement, the Superintendent of Police, 
made known that his department was prepared to take 
prompt and effective action against any person or group 
who disturbed the peace or created disorders on public 
or private property. He also exhorted the parents of 
both white and negro students who participated in the



12

Woolworth Store “sit-in” demonstration to urge upon 
these young people that such actions were not in the com­
munity interest; etc.

He further testified that as a resident of the 
City of New Orleans and as a member of the police de­
partment for 15 years, he did not know of any public 
establishment that catered to both white and negro at 
the same lunch counter.

. Mr. Wendell Barrett testified, that he was and 
had been the Manager of McCrory’s 5 and 10 Cents 
Store in the City of New Orleans for about 3 years; that 
the store was made up of individual departments, and 
catered to the general public.

That the policy of McCrory’s national organization 
as to segregated lunch counters, was to permit the local 
manager discretion to determine same, consideration being 
had for local tradition, customs and law, as interpreted 
by the local manager; that in conformity with this policy, 
he determined whether lunch counters in the local Mc­
Crory’s store would be segregated or not.

That on September 17th., 1960, there was a “sit-in” 
demonstration in the local store of McCrory’s, involving- 
one white man and some negroes; that he was in the store 
at the time.

At the conclusion of the testimony of this witness, 
the defendants offered in evidence, “House bills of the Lou­
isiana Legislature of 1960, 343 through 366, which bills 
were all introduced by Representatives Fields, Lehrman



13

and Triche, and to be specific Numbers 343, 44, 45, 46, 
47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 360, 61, 
62, 63, 64, 65, 66. All of which bills did not pass, but they 
are in the Journal. Also introduced and received in evi­
dence were Acts 69, 73, 77, 78, 79, 70, 76, 81 and 68.

The motion to quash was submitted without argu­
ment.

A consideration of defendants’ motion to quash, as 
well as the factual presentation on the hearing thereof, 
discloses defendants’ position to be, that the enactment 
of L.S.A.-R.S. 14:59(6) by the Louisiana Legislature of 
1960, was part of a “package deal”, wherein and with 
specific purpose and intent, that body sought to imple­
ment and further the state’s policy of enforced segrega­
tion of the races.

In addition, the same pleading and factual presen­
tation, was offered by defendants’ to support their con­
tention, that L.S.A.-R.S. 14:59(6), was enforced against 
them arbitrarily, capriciously and diseriminately in that 
it was being applied and administered unjustly and ille­
gally, and only against persons of the negro race, and/or 
white persons who acted in concert with members of the 
Negro race.

The courts have universally subscribed to the doc­
trine contained in the following citations:

PRESUMPTIONS AND CONSTRUCTION IN FAVOR 
OF CONSTITUTIONALITY

“The constitutionality of every statute is 
presumed, and it is the duty of the court to uphold



14

a statute wherever possible and every considera­
tion of public need and public policy upon which 
Legislature could rationally have based legislation 
should be weighed by the court, and, if statute is 
not clearly arbitrary, unreasonable and capricious 
it should be upheld as constitutional.”

State vs. Rones, 67 So. 2d. 99, 223 La. 839.
Michon vs. La. State Board of Optometry 

Examiners, 121 So. 2d. 565.

“The constitutionality of a statute is pre­
sumed and the burden of proof is on the litigant, 
who asserts to the contrary, to point out with 
utmost clarity wherein the constitution of the state 
or nation has been offended by the terms of the 
statute attacked.”

Olivedell Planting Co. v. Town of Lake 
Providence, 47 So. 2d. 23, 217 La. 621.

“Presumption is in favor of constitutionality 
of a statute, and statute will not be adjudged in­
valid unless its unconstitutionality is clear, com­
plete and unmistakable.”

State ex rel Porterie v. Grosjean, 161 So. 
871, 182 La. 298.

“The courts will not declare an act of the 
legislature unconstitutional unless it is shown that 
it clearly violates terms of articles of constitution.”

Jones v. State Board of Ed. 53 So. 2d. 792, 
219 La. 630P

“A legislative act is presumed to be legal 
until it is shown that it is manifestly unconsti-



15

tutional, and all doubts as to the validity are re­
solved in favor its constitutionality.”

“The rule that a legislative act is presumed 
to be legal until it is shown to be manifestly uncon­
stitutional is strictly observed where legislature 
has enacted a law in exercise of its police powers.” 

Board of Barber Examiners of La. v.
Parker, 182 So. 485, 190 La. 314.

“Where a statute is attacked for discrimi­
nation or unreasonable classification doubts are 
resolved in its favor and it is presumed that the 
Legislature acts from proper motives in classi­
fying for legislative purposes, and its classifica­
tion will not be disturbed unless it is manifestly 
arbitrary and invalid.”

State vs. Winehall & Rosenthal, 86 So. 781, .
147 La. 781, Writ of Error dismissed
(1922). Winehalld & Rosenthal vs.
State Louisiana, 42 S. Ct. 313, 258 U. S.
605, 66 L. Ed. 786.

“In testing validity of a statute the good faith on 
part of Legislature is always presumed.”

State vs. Saia, 33 So. 2d. 665, 212 La. 868.
“There is strong presumption Legislature 

understands and appreciates needs of people, and 
that its discriminations are based on adequate 
grounds.”

Festervand v. Laster, 130 So. 635, 15 La.
App. 159.

“A statute involving governmental matters 
will be construed more liberally in favor of its con-



16

stitutionality than one affecting private interests.” 
State ex rel LaBauve, v. Mitehel, 46 So. 

430, 121 La. 374.

“State is not presumed to act arbitrarily 
in exercising police power.”

State ex rel Porterie, Atty. Gen. v. Walms- 
ley, 162 So. 826, 183 La. 139, Appeal 
dismissed Board of Liquidation v. Board 
of Com’rs. of Port of New Orleans, 56 
St. Ct. 141, 296 U. S. 540, 80 L. Ed. 384, 
rehearing denied Board of Liquidation, 
City Debt of New Orleans v. Board of 
Comrs. of Port of New Orleans, 56 S. Ct. 
246, 296 U. S. 663, 80 L. Ed. 473.

“Where a law is enacted under exercise or 
pretended exercise of police power and appears upon 
its face to be reasonable, burden is upon party 
assailing such law to establish that its provisions 
are so arbitrai-ily and unreasonable as to bring it 
within prohibition of Fourteenth Amendment, 
U.S.C.A. Const. Amend. 14”.

State vs. Saia, 33 So. 2d. 665, 212 La. 868.

“Act of Legislature is presumed to be legal, 
and the judiciary is without right to declare it un­
constitutional unless that is manifest, and such rule 
is strictly observed in cases involving laws enacted 
in the exercise of the state’s police power.”

Schwegmann -Bros. v. Louisiana Bd. of 
Alcohol Beverage Control, 43 So. 2d. 248, 
216 La. 148, 14 A. L. R. 2d. 680.



17

L. S. A. - R. S. 14:59.(6) UNDER. WHICH THE PROSE­
CUTION IS BASED AND THE BILL OF INFORMA­
TION FOUNDED THEREON, ARE SO VAGUE, IN­
DEFINITE AND UNCERTAIN AS NOT TO ESTAB­
LISH AN ASCERTAINABLE STANDARD OF GUILT?

Defendants’ above stated complaint is without
merit.

L.S.A.-R.S. 14:59 (6) under which defendants are 
charged reads as follows:

“Criminal mischief is the intentional per­
formance of any of the following acts: * * *

(6) “Taking temporary possession of any 
part or parts of a place of business, or remaining 
in a place of business after the person in charge 
of said business or portion of such business has 
ordered such person to leave the premises and to 
desist from the temporary possession of any part 
or parts of such business.”

The bill of information alleges:
“* * * that on the 17th. of September, 1960, each 
did wilfully, unlawfully and intentionally take 
temporary possession of the lunch counter and res­
taurant of McCrory’s Store, a corporation author­
ized to do business in the State of Louisiana, lo­
cated at 1005 Canal Street, and did wilfully, un­
lawfully and intentionally remain in and at the 
lunch counter and restaurant in said place of busi­
ness after Wendeli Barrett the manager, a person 
in charge of said business, had ordered the said 
Sydney Langston Goldfinch, Jr., Rudolph Joseph



18

Lombard, Oretha Castle and Cecil Winston Carter,
Jr., to leave the premises of said lunch counter and 
restaurant and to desist from the temporary pos­
session of same,-contrary, etc.”

From the foregoing it will be seen that L.S.A.- 
R.S. 14:59 (6) as well as the bill of information filed 
thereunder, meet the constitutional rule governing the 
situation.

“When the meaning of a statute appears 
doubtful it is well recognized that we should seek 
the discovery of the legislative intent. However, 
lohen the language of a statute is plain and unam­
biguous and conveys a clear and definite meaning, 
there is no need for construction.”

State v. Marsh, et. ah 96 So. 2d. 643,
233 La. 388.

State v. Arkansas Louisiana Gas Co., 78 
So. 2d. 825, 227 La. 179.

“Meaning of statute must be sought in the 
language employed, and if such language be plain 
it is the duty of courts to enforce the law as 
written.”

State ex rel LeBlanc v. Democratic Central 
Committee, 86 So. 2d. 192, 229 La. 556.

Texas Co. v. Cooper, 107 So. 2d. 676, 236 
La. 380.

Beta Xi Chapter, etc. v. City of N. 0., 137 
So. 204, 18 La. App. 130.

Ramey v. Cudahy Packing Co., 200 So. 333.
“Statute, which describes indecent behaviour 

with juveniles , as commission by anyone over 17,



19

of any lewd or lascivious act upon person or in pres­
ence of any child under age of 17, with intention 
of arousing, or gratifying sexual desires of either 
person, which states that lack of knowledge of 
child’s age shall not be a defense, and, which pro­
vides penalty therefor, sufficiently describes acts 
which constitute violation of statute and therefore, 
is constitutional. L. S A. - R. S. 14:81”

State v. Milford, 73 So. 2d. 778, 225 La.
611.

State v. Saibold, 213 La. 415, 34 So. 2d.
909.

State v. Prejean, 216 La. 1072, 45 So. 2d.
627.

“The statute defining the crime of simple 
escape from ‘lawful custody’ of official of state 
penitentiary or from any ‘place where lawfully 
detained’ uses the quoted words in their common 
or ordinary meanings and is not violative of state 
or federal constitutions in failing to define the 
terms. L.S.A.-R.S. 14:110, L.S.A.-Const. Art. 1, 
Sec. 10; U.S.C.A.-Const. Amend. 14”

State v. Marsh, 96 So. 2d. 643, 233 La. 388.

L. S. A. - R. S. 15:227 provides:
“The indictment must state every fact and 

circumstance necessary to constitute the offense, 
but it need do no more, and it is immaterial 
whether the language of the statute creating the 
offense, or words unequivocally conveying the 
meaning of the statute is used.”



20

“Information charging defendant violated 
a specific statute in that he entered without author­
ity a described structure, the property of a named 
person, with the intent to commit a theft therein, 
set forth each and every element of the crime of 
simple burglary and fully informed accused of the 
nature and cause of the accusation, and therefore, 
was sufficient.”

State v. McCrory, 112 So. 2d. 432, 237 La. 
747.

“Where affidavit charged defendant with 
selling beer to miners under 18 years of age in 
the language of the statute, and set all the facts 
and circumstances surrounding the alleged offense, 
so that court was fully informed of the offense 
charged for the proper regulation of evidence 
sought to be introduced, and the accused was in­
formed of the nature and cause of the accusa* 
tion against her, and affidavit was sufficient to 
support a plea of former jeopardy, affidavit was 
sufficient to charge offense.”

State v. Emmerson, 98 So. 2d. 225, 233 
La. 885.

State v. Richardson, 56 So. 2d. 568, 220 
La. 338.

L.S.A.-R.S. 14:59(6) upon which this prosecution 
is based is sufficient in its terms to notify all who may 
fall under its provisions as to what acts constitute a 
violation of the law, and the bill of information meets 
fully the requirements of the law.



21

THE BILL OF INFORMATION ON WHICH THE 
PROSECUTION IS BASED, DOES NOTHING MORE 
THAN SET FORTH A CONCLUSION OF LAW, AND 
DOES NOT STATE WITH CERTAINTY AND SUF­
FICIENT CLARITY THE NATURE OF THE ACCU­
SATION?

There is no merit to this contention.

As has been heretofore shown, the bill of informa­
tion states “facts and circumstances” in compliance with 
the Constitutional mandate, L.S.A.-R.S. 15:227, and the 
decisions of the Supreme Court. The words used in de­
scribing the offense are those of L.S.A.-R.S. 14:59(6), 
and are not conclusions of law by pleader,

“Information for taking excess amount of 
gas from well held not to state mere conclusions, 
where showing amount allowed and amount taken.
Act No. 252, of 1924, sec. 4, subd. 2.”

State v. Carson Carbon Co., I l l  So. 162,
162 La. 781.

L.S.A.-R.S. 14:59 (6) DEPRIVES DEFENDANTS OF 
EQUAL PROTECTION OF THE LAW IN THAT IT 
EXCLUDES FROM ITS PROVISIONS OF A CERTAIN 
CLASS OF CITIZENS, NAMELY THOSE WHO AT 
THE TIME ARE ACTIVE WITH OTHERS IN FUR­
THERANCE OF CERTAIN UNION (LABOR) AC­
TIVITIES?

The court is unable to relate this contention to the 
provisions of L.S.A.-R.S. 14 :59(6), or the bill of informa­
tion filed thereunder.



22

No where in the statute is any reference made to 
labor union activities, nor does the statute make any ex­
ceptions or exclusions as to any persons or class of citizens, 
labor unions, or otherwise. It is probable that defendants 
have erroneously confused these proceedings with a charge 
under L.S.A.-R.S. 14:103 (Disturbance of the Peace.)

THE DEFENDANTS ARE BEING DEPRIVED OF 
THEIR RIGHTS UNDER THE “EQUAL PROTECTION 
AND DUE PROCESS” CLAUSES OF BOTH THE CON­
STITUTION OF LOUISIANA AND OF THE UNITED 
STATES OF AMERICA, IN THAT THE SAID LAW 
UNDER WHICH THE BILL OF INFORMATION IS 
FOUNDED IS BEING ENFORCED AGAINST THEM 
ARBITRARILY, CAPRICIOUSLY AND DISCRIMI- 
NATELY, IN THAT IT IS BEING APPLIED AND 
ADMINISTERED UNJUSTLY AND ILLEGALLY, 
AND ONLY AGAINST PERSONS OF THE NEGRO 
RACE AND/OR W HITE PERSONS WHO ACT IN 
CONCERT WITH MEMBERS OF THE NEGRO RACE?

The prosecution of defendants is in the name of 
the State of Louisiana, through the District Attorney 
for the Parish of Orleans. This officer is vested with 
absolute discretion as is provided by L.S.A.-R.S. 15:17.

It reads as follows:
“The district attorney shall have entire 

charge and control of every criminal prosecution 
instituted or pending in any parish wherein he is 
district attorney, and shall determine whom, when, 
and how he shall prosecute, etc.”



23

In the case of State v. Jourdain, 74 So. 2d. 203, 
225 La. 1030, it was claimed in a motion to quash that 
the narcotic law was being administered by the New 
Orleans Police Department and the District Attorney’s 
Office in a manner calculated to deprive the defendant 
of the equal protection of the law, and in violation of Sec­
tion 1 of the 14th. Amendment of the Constitution of the 
United States, in that these officials were actively prose­
cuting the infraction in this case, whereas they refrained 
from prosecuting other violations of the narcotic act of 
a more serious nature.

In sustaining the trial court’s ruling, Your Honors
said:

“The claim is untenable. Seemingly, it is the 
thought of counsel that the failure of the Police 
Department and the District Attorney to offei ap­
pellant immunity, if he would become an informer, 
operates as a purposeful discrimination against 
him and thus denies him an equal protection of the 
law. But, if we conceded that the police and the 
district attorney have failed to prosecute law vio­
lators who have agreed to become informers, this 
does not either constitute an unlawful administra­
tion of the statute or evidence as intentional or pur­
poseful discrimination against appellant. The mat­
ter of the prosecution of any criminal case is 
within the entii'e control of the district attorney 
(R.S. 15:17) and the fact that not every violator 
has been prosecuted is of no concern of appellant, 
in the absence of an allegation that he is a mem-



24

ber of a class being prosecuted solely because of 
race, religion, color or the like, or that he alone 
is the only person who has been prosecuted under 
the statute. Without such charges his claim can­
not come within that class of unconstitutional dis­
crimination which was found to exist in Yick Wo v. 
Hopkins, 118 U. S. 356, 30 L. Ed. 220, 6 S. Ct. ' 
1064 and McFarland v. American Sugar Ref. Co.,

• 241 U. S. 79, 60 L. Ed. 899, 36 S. Ct. 498. See
Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497,
64 S. Ct. 397, and cases there cited.”

In the case of City of New Orleans versus Dan 
Levy, et. al., 233 La. 844, 98 So. 2d. 210, Justice McCaleb 
in concurring stated:

“I cannot agree that the City of New Or­
leans and the Vieux Carre Commission are or have 
been applying the ordinances involved with “an 
evil eye and an unequal hand, so as to practically 
make unjust and illegal discriminations between 
persons in similar circumstances” (see Yick Wo v. 
Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 1073, 30 
L. Ed. 220) and have thus denied to appellant an 
equal protection of the law in violation of the 
Fourteenth Amendment to the United States Con­
stitution.’

The sum and substance of' appellant’s 
‘charges is that his constitutional rights have been 
violated since many other similar or more severe 
violations of the city ordinances exist and that the 
city officials have permitted such violations by 
not taking any action to enforce the law. These



25

complaints, even if established, would not be suffi­
cient in my opinion to constitute an unconstitu­
tional denial of equal protection to appellant as it 
is the well-settled rule of the Supreme Court of 
the United States and all other state courts of last 
resort that the constitutional prohibition embodied 
in the equal protection clause applies only to dis­
criminations which are shown to be of an inten­
tional, purposeful or systematic nature. Snowden 
v. Hughes, 321 U. S. 1, 9, 64 S. Ct. 397, 88 L, Ed. 
497, 503; Charleston Federal Savings & Loan 
Ass’n. v. Alderson, 324 U. S. 182, 65 S. Ct. 624, 
89 L. Ed. 857; City of Omaha v. Lewis & Smith 
Drug Co., 156 Neb 650, 57 N. W. 2d. 269; Zorach 
v. Clauson, 303 N. Y. 161, 100 N. E. 2d. 463; 12 
Am Jur. Section 566 and State v. Anderson, 206 
La. 986, 20 So. 2d. 288.

In State v. Anderson, this court quoted at 
length from the leading case of Snowden v. Hughes, 
supra, (321 U. S. 1, 9, 64 S. Ct. 401) where the 
Supreme Court of the United States expressed at 
some length the criteria to be used in determining 
whether an ordinance or statute, which is claimed 
to have been unequally administered, transgresses 
constitutional rights. The Supreme Court said:

“The unlawful administration by state offi­
cers of a state statute fair on its face, resulting in its 
unequal application to those who are entitled to be 
treated alike, is not a denial of equal protection 
unless there is shown to be present in it an element 
of intentional or purposeful discrimination. This 
may appear on the face of the action taken with



26

respect to a particular class or person, of McFar­
land v. American Sugar Refining Co., 241 U. S. 
79, 86, 87, 36 S. Ct. 498, 501, 60 L. Ed. 899 (904), 
or it may only be shown by extrinsic evidence show­
ing a discriminatory design to favor one individual 
or class over another not to be inferred from the 
action itself, Yick Wo v. Hopkins, 118 U. S. 356, 
373, 374, 6 S. Ct. 1064, 1072, 1073, 30 L. Ed. 220 
(227, 228). But a discriminatory purpose is not 
presumed. Tarrance v. State of Florida, 188 U. S. 
519, 520, 23 St. Ct. 402, 403, 47 L, Ed. 572 (573) ; 
there must be a showing of ‘clear and intentional 
discrimination’, Gundling v. City of Chicago, 177 
U. S. 183, 186, 20 S. Ct. 633, 635, 44 L. Ed. 725 
(728) ; see Ah Sin v. Wittman, 198 U. S. 500, 507, 
508, 25 S. Ct. 756, 758, 759, 49 L, Ed. 1142 (1145, 
1146) ; Bailey v. State of Alabama, 219 U. S. 
219, 231, 31 S. Ct. 145, 147, 55 L. Ed. 191 
(197). Thus the denial of equal protection by the 
exclusion of negroes from a jury may be shown by 
extrinsic. evidence of a purposeful discriminatory 
administration of a statute fair on its face. Neal 
v. State of Delaware, 103 U. S. 370, 394, 397, 26 
L. Ed. 567 (573, 574) ; Norris v. State of Ala­
bama, 294 U. S. 587, 589, 55 S. Ct. 579, 580, 79 
L. Ed. 1074 (1076) ; Pierre v. State of Louisiana, 
306 U. S. 354, 357, 59 S. Ct, 536, 538, 83 L. Ed. 
757, (759) ; Smith v. State of Texas, 311 U. S. 128, 
130, 131, 61 S. Ct. 164, 165, 85 L. Ed. 84 (86, 87) ; 
Hill v. State of Texas, 316 U. S. 400, 404, 62 S. Ct. 
1159, 1161, 86 L. Ed. 1559 (1562). But a mere 
showing that negroes were not included in a par­
ticular jury is not enough; there must be a showing



27

of actual discrimination because of race. State of 
Va. v. Rives, 100 U. S. 313, 322, 323, 25 L. Ed. 
667, (670, 671) Martin v. State of Texas, 200 U. S. 
316, 320, 321, 26 S. Ct. 338, 339, 50 L. Ed. 497 
(499) ; Thomas v. State of Texas, 212 U. S. 278, 
282, 29 S. Ct. 393, 394, 53 L. Ed. 512 (514); cf. 
Williams v. State of Mississippi, 170 U. S. 213, 
225, 18 S. Ct. 583, 588, 42 L. Ed. 1012 (1016).

“Another familiar example is the failure of 
state taxing officials to assess property for taxa­
tion on a uniform standard of valuation as re­
quired by the assessment laws. It is not enough to 
establish a denial of equal protection that some are 
assessed at a higher valuation than others. The 
difference must be due to a purposeful discrimina­
tion which may be evidenced, for example, by a sys­
tematic under-valuation of the property of some 
taxpayers and a systematic over-valuation of the 
property of others, so that the practical effect of 
the official breach of the law is the same as though 
the discrimination were incorporated in and pro­
claimed by the statute. Coulter v. Louisville &
N. R. Co.,” 196 U. S. 599, 608, 609, 610, 25 St. Ct. 
342, 343, 344, 345, 49 L. Ed. 615 (617, 618); 
Chicago B & Q R Co., v. Babcock, 204 U. S. 585, 
597, 27 St. Ct. 326, 328, 51 L. Ed. 636 (640); Sun­
day Lake Iron Co. v. Wakefield Twp. 247 U. S. 350, 
353, 38 St. Ct. 495, 62 L. Ed. 1154 (1156) ; South­
ern R. Co. v. Watts, 260 U. S. 519, 526, 43 S. Ct. 
192, 195, 67 L. Ed. 375 (387). Such discrimina­
tion may also be shown to be purposeful, and hence 
a denial of equal protection, even though it is



28

neither systematic nor long continued. Cf. McFar­
land v. American Sugar Refining Co. (241 U. S. 79,
36 S. Ct. 498, 60 L. Ed. 899) supra.

“The lack of any allegations in the complaint 
here, tending to show a purposeful discrimina­
tion between persons or classes of persons is not 
supplied by the approbrious epithets ‘willful’ and 
‘malicious’ * * * *” ”

On rehearing in the Levy Case, Mr. Justice Simon, 
speaking for the Court said:

“In the instant case there is no proof that 
in the enforcement of the municipal zoning and 
Vieux Carre ordinances that the City acted with 
a deliberate discriminatory design, intentionally 
favoring one individual or class over another. It 
is well accepted that a discriminatory purpose is 
never presumed and that the enforcement of the 
laws by public authorities vested, as they are with 
a measure of discretion will, as a rule, be upheld.”

Applying the cases herein cited, to the proof ad­
duced by defendants in support of their claim of unjust, 
illegal, and discriminatory administration of L.S.A.- 
R.S. 14:59 (6), defendants have failed to sustain their 
burden.

The claim is without merit.

L.S.A.-R.S. 14:59(6) UN.DER WHICH THE DEFEND­
ANTS ARE CHARGED IS UNCONSTITUTIONAL 
AND IN CONTRAVENTION OF THE 14TH AMEND­
MENT OF THE CONSTITUTION OF THE UNITED



29

STATES, AND IN CONTRAVENTION OF THE CON­
STITUTION OF LOUISIANA, IN THAT IT WAS EN­
ACTED FOR THE SPECIFIC PURPOSE AND IN­
TENT TO IMPLEMENT AND FURTHER THE 
STATE’S POLICY OF ENFORCED SEGREGATION 
OF RACES?

This contention of defendants is without merit.

Certainly under its police power the legislature of 
the state was within its rights to enact L.S.A.-R.S. 
14:59(6).

What motives may have prompted the enactment 
of the statute is of no concern of the courts. As long 
as the legislature complied with the constitutional man­
date concerning legislative powers and authority, this was 
all that was required.

“It has been uniformly held that every rea­
sonable doubt should be resolved in favor of the 
constitutionality of legislative acts. We said in 
State ex rel. Knox v. Board of Supervisors of 
Grenada County, 141 Miss. 701, 105 So. 541, in a 
case involving Section 175 of the Mississippi Con­
stitution, that if systems (acts) of the kind here 
involved are evil, or if they destroy local govern­
ment in the counties and municipalities, that is 
a question to be settled at the ballot boxes between 
the people and the Legislature. And whether the 
law is needed or not, or whether it is wise or not, 
cannot be settled here. Our functions are to decide 
whether the Legislature had the power to act in



3 0

passing the law and not whether it ought to have 
acted in the manner it did. The court will uphold 
the constitution in the fullness of its protection, but 
it will not and -cannot rightfully control the dis­
cretion of the Legislature within the field assigned 
to it by the Constitution.”

State of Mississippi ex rel. Joe T. Patter­
son, Attorney General v. Board of Super­
visors of Prentiss County, Miss. 105 So. 
2d. 154, (Mississippi)

“The state, in the brief of its counsel, ar­
gues: Tf we assume that R. S. 56:131 et sequor 
must be followed----- then there can be no enforce­
ment of the fish and game laws by the criminal 
courts. Only a $25 penalty can be inflicted against 
a person who is apprehended for wilfully killing a 
doe deer. Certainly this small ‘civil’ penalty will 
not deter willful game violators and our deer pop­
ulation will soon be decimated. # # #’ Whether the 
prescribed civil proceeding with its attendant pen­
alty militates against adequate wild life protec­
tion is not for the courts’ determination. The 
question is one of policy which the lawmakers 
must resolve.”

State v. Coston, 232 La. 1019, 95 So. 2d. 
641.

“We should also retain in our thinking the 
proposition that the regulation and control of the 
alcoholic beverage business is peculiarly a legis­
lative function. In this connection, as in all similar 
situations, when the legislative branch of the gov­
ernment exercises a legislative power in the form of



31

a duly enacted statute or ordinance it is not the 
function of a court to explore the wisdom or ad­
visability of the enactment in order t-o bring its 
enforcement into question. To this end the limits 
of the court’s authority is to measure the validity 
of the legislative enactment by the requirements 
of the controlling law. If those standards are 
met the legislation should be upheld. Somlyo v. 
Schott, supra.”

State v. Cochran, 114 So. 2d. 797 (Fla.)
“In Morgan County v. Edmonson, 238 Ala. 

522, 192 So. 274, 276, we said:
‘It is of course a well settled rule that in deter­
mining the validity of an enactment, the judi­
ciary will not inquire into the motives or rea­
sons of the Legislature or the members thereof. 
16 C.J.S., Constitutional Law, pp. 154, p. 487. 
‘The judicial department cannot control legis­
lative discretion, nor inquire into the motives 
of legislators.’ City of Birmingham v. Henry, 
224 Ala. 239, 139 So. 283. See also, State 
ex rel Russum v. Jefferson County Commis­
sion, 224 Ala. 229, 139 So. 243; *****’

It is our solemn duty to uphold a law which 
has received the sanction of the Legislature, unless 
we are convinced beyond a reasonable doubt of its 
unconstitutionality. Yielding v. State ex rel. Wil­
kinson, 232 Ala. 292, 167 So. 580.”

State v. Hester, 72 So. 2d. 61 < Ala.)
“Another factor which fortifies our view is 

this: the act assaulted is a species of social legis-



32

lation, that is, a field in which the legislative power 
is supreme unless some specific provision of organic 
law is transgressed. Absent such transgression it 
is for the legislature and not the courts to deter­
mine what is “unnecessary, unreasonable, arbi­
trary and capricious’. Requiring hotels, motels, 
and other rooming houses to advertise full details 
of room charges if they exercise that medium is 
certainly a legislative prerogative with which the 
courts have no power to interfere. A legislative 
finding that such a requirement is in the public 
interest concludes the matter.”

Adams v. Miami Beach Hotel Association, 
77 So. 2d. 465, (Fla.)

“Statute is not unconstitutional merely be­
cause it offers an opportunity for abuses.”

James v. Todd (Ala) 103 So. 2d. 19. Ap­
peal dismissed 79 S. Ct. 288, 358 U.S. 
206, 3 L. Ed. 2d. 235.

“Validity of law must be determined by its 
terms and provisions, not manner in which it might 
be administered, operated or enforced.”

Clark v. State (Miss) 152 So. 820.
“The state legislature is unrestricted, save 

by the state or federal constitution, and a statute 
passed by it, in the exercise of the powers, the lan­
guage of which is plain, must be enforced, regard­
less of the evil to which it may lead.”

State v. Henry .(Miss) 40 So. 152, 5 L.R.A.
N. S. 340.

“If the power exists in the legislative de­
partment to pass an act, the act must be upheld



33

by the court, even though there may be a possi­
bility of administration abuse.”

Stewart v. Mack (Fla) 66 So. 2d. 811.
“The gravamen of the offense denounced by 

section 3403 is the entry by one upon the enclosed 
land or premises of another occupied by the owner 
or his employees after having been forbidden to 
enter, or not having been previously forbidden 
refusing to' depart therefrom after warned to 
do so.”

* * * * * *

“It is contended that the statute is invalid 
because it is apparent that its terms are for the 
protection of the lessor in the enjoyment of his 
property. Conceding that to be true, we find no 
reason for the deduction that the statute is there­
fore invalid. All statutes against trespass are pri­
marily for the protection of the individual prop­
erty owner, but they are also for the purpose of 
protecting society against breaches of the peace 
which might occur if the owner of the property 
is required to protect his rights by force of arms.” 

Coleman, Sheriff v. State ex rel Carver 
(Fla.) 161 So. 89.

L.S.A.-R.S. 14:59(6) EXCEEDS THE POLICE POWER 
OF THE STATE, IN THAT IT HAS NO REAL, SUB­
STANTIAL OR RATIONAL RELATION TO THE PUB­
LIC SAFETY, HEALTH, MORALS, OR GENERAL 
WELFARE, BUT HAS FOR ITS PURPOSE AND OB­
JECT, GOVERNMENTALLY SPONSORED AND EN­
FORCED SEPARATION OF RACES, THUS DENYING



34

DEFENDANTS THEIR RIGHTS UNDER THE FIRST, 
THIRTEENTH, AND FOURTEENTH AMENDMENTS 
TO THE UNITED STATES CONSTITUTION, AND 
ARTICLE 1, SECTION 2 OF THE LOUISIANA CON­
STITUTION?

THE REFUSAL TO GIVE SERVICE SOLELY BE­
CAUSE OF RACE THE ARREST AND SUBSEQUENT 
CHARGE ARE ALL UNCONSTITUTIONAL ACTS IN 
VIOLATION OF THE 14TH AMENDMENT OF THE 
UNITED STATES CONSTITUTION, IN THAT THE 
ACT OF THE COMPANY’S REPRESENTATIVE WAS 
NOT THE FREE WILL ACT OF A PRIVATE INDI­
VIDUAL, BUT RATHER AN ACT WHICH WAS EN­
COURAGED, FOSTERED AND PROMOTED BY 
STATE AUTHORITY IN SUPPORT OF A CUSTOM 
AND POLICY OF ENFORCED SEGREGATION OF 
RACE AT LUNCH COUNTERS?

THE ARREST, CHARGE AND PROSECUTION OF 
THE’ DEFENDANTS ARE UNCONSTITUTIONAL, 
IN THAT IT IS THE RESULT OF STATE AND MU­
NICIPAL ACTION, THE PRACTICAL EFFECT OF 
WHICH IS TO ENCOURAGE AND FOSTER DIS­
CRIMINATION BY PRIVATE PARTIES?

The Court has grouped together for discussion 
the propositions hereinabove enumerated as they appear 
to-be related to each other in the sum total of defend­
ants complaint of the unconstitutionality of L.S.A.-R.S. 
14:59(6).

There is presently no anti-discrimination statute 
in Louisiana, Sections 3 and 4 of Title 4 of the Revised



35

Statutes having been repealed by Act 194 of 1954. Noi 
is there any legislation compelling the segregation of the 
races in restaurants, or places where food is served.

As authority supporting the constitutionality of 
L.S.A.-R.S. 14:59(6), the following cases are cited:

In the case of State v, Clyburn, et ah, (N.C.) 1958, 
101 S. E. 2d. 295, the defendants, a group of Negroes 
led by a minister, entered a Durham, North Carolina, 
ice cream and sandwich shop which was separated by a 
partition into two parts marked “White” and “Colored . 
They proceeded to the portion set apart for white patrons 
and asked to be served. Service was refused and the pro­
prietor asked them to leave, or to move to the section 
marked “Colored.” The minister asserted religious and 
constitutional bases for remaining. A city police officei 
placed them under arrest. The defendants were tried 
and convicted on warrants charging violation of state 
statutes which impose criminal penalties upon peisons 
interfering with the possession of privately-held pioperty. 
On appeal the Supreme Court of North Carolina affiimed 
the conviction. Finding no “state action” within the pio- 
hibition of the Fourteenth Amendment, the Couit held 
that the Constitutional rights of defendants had not been 
infringed by refusing them service or by their subsequent 
arrest.

In resolving the question, “Must a property owner 
engaged in a private enterprise submit to the use of his 
property to others simply because they are members of 
a different race, “the Supreme Court of North Carolina 
said:



36

“The evidence shows the partitioning of the 
building and provision for serving members of the 
different races in differing portions of the building 
was the act of the owners of the building, operators 
of the establishment. Defendants claim that the 
separation by color for service is a violation of their 
rights guaranteed by the Fourteenth Amendment 
to the Constitution of the United States.”

-x- -X- *  *  -j:* -x-

“Our statutes, G. S. Para. 14-126 and 134, 
impose criminal penalties for interfering with the 
possession or right of possession of real estate pri­
vately held. There statutes place no limitation on 
the right of the person in possession to object to 
a disturbance of his actual or constructive posses­
sion. The possessor may accept or reject whom­
soever he pleases and for whatsoever whim suits his 
fancy. When that possession is wrongfully dis­
turbed it is a misdemeanor. The extent of punish­
ment is dependent upon the character of the posses­
sion, actual or constructive, and the manner in 
which the trespass is committed. Race confers no 
prerogative on the intruder; nor does it impair his 
defense.

The Fourteenth Amendment to the Consti­
tution of the United States created no new privi­
leges. It merely prohibited the abridgment of ex­
isting privileges by state action and secured to all 
citizens the equal protection of the laws.

Speaking with respect to rights then as­
serted, comparable to rights presently claimed, Mr. 
Justice Bradley, in the Civil Rights Cases, 109



37

U. S. 3, 3 S.Ct. 18, 21, 27 L. Ed. 835, after quot­
ing the first section of the Fourteenth Amendment, 
said: ‘It is state action of a particular character 
that is prohibited. Individual invasion of individ­
ual rights is not the subject-matter of the amend­
ment. It has a deeper and broader scope. It nulli­
fies and makes void all state legislation, and state 
action of every kind, which impairs the privileges 
and immunities of citizens of the United States, or 
which injures them in life, liberty or property with­
out due process of law, or which denies to any of 
them the equal protection of the laws. It not only 
does this, but, in order that the national will, thus 
declared, may not be a mere brutum fulmen the 
last section of the amendment invests congress with 
power to enforce it by appropriate legislation. To 
enforce what? To enforce the prohibition. To 
adopt appropriate legislation for correcting the ef­
fects of such prohibited state laws and state acts, 
and thus to render them effectually null, void and 
innocuous. This is the legislative power conferred 
upon congress, and this is the whole of it. It does 
not invest congress with power to legislate upon 
subjects which are within the domain of state 
legislation; but to provide modes of relief against 
state legislation or state action, of the kind referred 
to. It does not authorize congress to create a code 
of municipal law for the regulation of private 
rights: but to provide modes of redress against the 
operation of state laws, and the action of state 
officers executive or judicial, when these are sub­
versive of the fundamental rights specified in the 
amendment. Positive rights and privileges are



38

undoubtedly secured by the fourteenth amendment; 
but they are secured by way of prohibition against 
state laws and state proceedings affecting those 
rights and privileges, and by power given to con­
gress to legislate for the purpose of carrying such 
prohibition into effect; and such legislation must 
necessarily be predicated upon such supposed state 
laws or state proceedings, and be directed to the 
correction of their operation and effect.’

In United States v. Harris, 106 U. S. 629, 
1 S. Ct. 601, 609, 27 L. Ed. 290, the Court, quoting 
from United States v. Cruikshank, 92 U. S. 542, 23 
L. Ed. 588 said: 'The fourteenth amendment pro­
hibits a state from depriving any person of life, 
liberty, or property without due process of law, or 
from denying to any person the equal protection of 
the laws; but this provision does not add anything 
to the rights of one citizen as against another. It 
simply furnishes an additional guaranty against 
any encroachment by the states upon the funda­
mental rights which belong to every citizen as a 
member of society. The duty of protecting all its 
citizens in the enjoyment of an equality of rights 
was originally assumed by the states, and it re­
mains there. The only obligation resting upon the 
United States is to see that the states do not deny 
the right. The power of the national government 

"is limited to this guaranty.’
More than half> a century after these cases 

were decided the Supreme Court of the United 
States said in Shelley v. Kraemer, 334 U. S. 1, 68
S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R. 2d. 441: ‘Since



39

the decision of this Court in the Civil Rights Cases, 
1883, 109 U, S. 3, 3 S. Ct. 18, 27 L. Ed. 835, the 
principle has become firmly embedded in our con­
stitutional law that the action inhibited by the first 
section of the Fourteenth Amendment is only such 
action as may fairly be said to be that of the 
States. That Amendment erects no shield against 
merely private conduct, however discriminatory or 
wrongful.’ This interpretation has not been modi­
fied: Collins v. Hardyman, 341 U. S. 651, 71 S. Ct. 
937, 95 L. Ed. 1253; District of Columbia v. 
Thompson Co., 346 U. S. 100, 73 S. Ct. 1007, 97 L. 
Ed. 1480; Williams v. Yellow Cab Co., 3 Cir. 200 
F. 2d. 302, certiorari denied Dargan v. Yellow Cab 
Co., 346 U. S. 840, 74 S. Ct. 52, 98 L. Ed. 361.

Dorsey v. Stuyvesant Town Corp., 299 N. Y. 
512, 87 N. E. 2d. 541, 14 A. L. R. 2d. 133, pre­
sented the right of a corporation, organized under 
the New York law to provide low cost housing, to 
select its tenants, with the right to reject on ac­
count of race, color, or religion. The New York 
Court of Appeals affirmed the right of the cor­
poration to select its tenants. The Supreme Court 
of the United States denied certiorari, 339 U. S. 
981, 70 S. Ct. 1019, 94 L. Ed. 1385.

The right of an operator of a private enter- 
pxdse to select the clientele he will serve and to 
make such selection based on color, if he so desires, 
has been repeatedly recognized by the appellate 
courts of this nation. Madden v. Queens County 
Jockey Club, 269 N. Y. 249, 72 N. E. 2d. 697, 1 
A. L. R. 2d. 1160; Terrell Wells Swimming Pool



40

v. Rodriguez Tex. Civ. App. 182 S. W. 2d. 824; 
Booker v. Grand Rapids Medical College, 156 Mich. 
95, 120 N. W. 589, 24 L. R. A., N. S. 447; Younger 
v. Judah, 111 Mo. 303, 19 S. W. 1109; Goff v. Sav­
age, 122. Wash. 194, 210 P. 374, De La Ysla v. 
Publix Theatres Corporation, 82 Utah 598, 26 P. 
2d. 818; Brown v. Meyer Sanitary Milk Co., 150 
Kan. 931, 96 P. 2d. 651;

Horn v. Illinois Cent. R. Co., 327 111. App. 498, 
64 N. E. 2d. 574; Coleman v. Middlestaff, 147 
Cal. App. 2d. Supp. 833, 305 P. 2d. 1020; Fletcher 
v. Coney Island, 100 Ohio App. 259, 136 N. E. 2d. 
344; Alpaugh v. Wolverton, 184 Va. 943, 36 S. E. 
2d. 906. The owner-operator’s refusal to serve de­
fendants, except in the portion of the building des­
ignated by him, impaired no rights of defendants.

The fact that the proprietors of the ice 
cream parlor contributed to the support of local 
government and paid a license or privilege tax 
which license contained no restrictions as to whom 
the proprietors could serve cannot be construed to 
justify a trespass, nor is there merit in the sug­
gestion that the complaint on which the warrant of 
arrest issued, signed by an officer charged with 
the duty of enforcing the laws, rather than by the 
injured party, constituted state action denying 
privileges guaranteed to the defendants by the 
Fourteenth Amendment. The crime charged was 
committed in the presence of the officer and after 
a respectful request to desist. He had a right to 
arrest. G. S. Par. 15-41.



41

Screws v. United States, 325 U. S. 91, 65 S.
Ct. 1031, 85 L. Ed. 1368; and State v. Scoggin, 236 
N. C. 19, 72 S. E. 2d. 54, cited and relied upon 
by defendants, appellants, to support their position, 
have no factual analogy to this case. Nothing 
said in those cases in any way supports the position 
taken by defendants in this case.”

In the case of Browning v. Slenderella Systems of 
Seattle, (Wash) (1959), 341 P. 2d. 859, two justices of 
the Supreme Court of Washington dissented in a ruling 
of that court holding a reducing salon came within the 
purview of an Anti-Discrimination Statute of that State.

In their dissent it was said:
“Because respondent is a Negress, the Slen­

derella Systems of Seattle, a private enterprise, 
courteously refused to give her a free reducing 
treatment, as advertised. She thereupon became 
abusive and brought this civil action for the injury 
to her feelings caused by the racial discrimination.

This is the first such action in this state. In 
allowing respondent to maintain her action, the 
majority opinion has stricken down the constitu­
tional right of all private individuals of every race 
to choose with wrhom they will deal and associate 
in their private affairs.

No sanction for this result can be found in 
the recent segregation cases in the United States 
supreme court involving Negro rights in public 
schools and public busses. These decisions were 
predicated upon section 1 of the fourteenth amend-



42

ment to the United States constitution, which 
reads:

'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 
wherein they reside. No State shall make or 
enforce any law which shall abridge the privi­
leges or immunities of citizens of the United 
States: nor shall any State deprive any person 
of life, liberty, or property, without due process 
of law; nor deny to any person within its juris­
diction the equal protection of the laws.” (Italics 
mine.)

In the pre-Warren era, the courts had held 
that the privileges of Negroes under the fourteenth 
amendment, supra, were not abridged if they had 
available to them public services and facilities of 
e q u a l  q u a l i t y  to those enjoyed by white people. 
The Warren antisegregation rule abandoned that 
standard and substituted the unsegregated enjoy­
ment of public services and facilities as the sole 
test of Negro equality before the law in such pub­
lic institutions.

The rights and privileges of the fourteenth 
amendment, supra, as treated in the segregation 
decisions and as understood by everybody, related 

. to public institutions and public utilities for the 
obvious reason that no person, whether white, black, 
red, or yellow, has any right whatever to compel 
another to do business with him in his private af­
fairs.



43

No public institution or public utility is in­
volved in the instant case. The Slenderella enter­
prise was not established by law to serve a public 
purpose. It is not a public utility with monopoly 
prerogatives granted to it by franchise in exchange 
for an unqualified obligation to serve everyone 
alike. Its employees are not public servants or 
officers. It deals in private personal services. Its 
business, like most service trades, is conducted pur­
suant to informal contracts. The fee is the con­
sideration for the service. It is true the contracts 
are neither signed, sealed, nor reduced to writing. 
They are contracts, nevertheless, and, as such, must 
be voluntarily made and are then, and only then, 
mutually enforceable. Since either party can re­
fuse to contract, the respondent had no more right 
to compel service than Slenderella had to compel her 
to patronize its business.

There is a clear distinction between the non­
discrimination enjoined upon a public employee in 
the discharge of his official duties, which are pre­
scribed by laws applicable to all, and his unlimited 
freedom of action in his private affairs. There is 
no analogy between a public housing project oper­
ated in the government’s proprietary capacity, 
wherein Negroes have equal rights, and a private 
home where there are no public rights whatever 
and into which even the King cannot enter.

No one is obliged to rent a room in one’s 
home; but, if one chooses to operate a boarding 
house therein, it can be done with a clientele se­
lected according to the taste or even the whim of



44

the landlord. This right of discrimination in pi i- 
vate businesses is a constitutional one.

“The ninth amendment of the United States 
constitution specifically provides: /

‘The enumeration in the Constitution, of certain 
rights shall not be construed to deny or dis­
parage others retained by the people.’

All persons familiar with the rights of Eng­
lish speaking peoples know that their liberty 
inheres in the scope of the individual s right to 
make uncoerced choices as to what he will think 
and say; to what religion he will adhere; what oc­
cupation he will choose; where, when, how and for 
whom he will work, and generally to be free to 
make his own decisions and chooses his course of 
action in his private civil affairs. These consti­
tutional rights of law-abiding citizens are the every 
essence of American liberties. For instance, they 
far outweigh in importance the -fifth amendment 
to the United States constitution which excuses 
criminals from giving evidence against themselves. 
It was, in fact, an afterthought. Our constitu­
tional forefathers were chiefly concerned with the 
rights of honest men. They would have specified 
their rights with the same particularity that they 
did In regard to criminals if they had foreseen 
that courts would become unfamiliar with them.

Cash registers ring for a Negro’s as well 
as for a white man’s money. Practically all Ameri­
can businesses, excepting a few having social ovei- 
tones or involving personal services, actively seek



45

Negro patronage for that reason. The few that 
do not serve Negroes adopt that policy either be­
cause their clientele insist upon exclusiveness, or 
because of the reluctance of employees to render 
intimate personal service to Negroes. Both the 
clientele and the business operator have a consti­
tutional right to discriminate in their private af­
fairs upon any conceivable basis. The right to ex­
clusiveness, like the right to privacy, is essential 
to freedom. No one is legally aggrieved by its ex­
ercise.

No sanction for destroying our most precious 
heritage can be found in the mminal statute cited 
by the majority opinion. It does not purport to 
create a civil cause of action. The statute refers 
to “places of public resort”. (Italics mine). This 
phrase is without constitutional or legal signifi­
cance. It has no magic to convert a private busi­
ness into a governmental institution. If one man a 
week comes to a tailor shop, it is a place of public 
vesoxt, but that does not make it a public utility or 
public institution, and the tailor still has the right to 
select his private clientele if he chooses to do so. 
As a matter of fact, the statute in question is not 
even valid as a criminal statute. Obviously, this 
is not the occasion, however, to demonstrate its 
unconstitutionality.

The majority opinion violates the thirteenth 
amendment to the United States constitution. It 
provides, inter alia:



46

“Neither slavery nor involuntary servitude * * * 
shall exist within the United States * * *’ (Italics
mine)

/

Negroes should be familiar with this amend­
ment. Since its passage, they have not been com­
pelled to serve any man against their will. When 
a white woman is compelled against her will to give 
a Negress a Swedish massage, that too is involun­
tary servitude. Henderson v. Coleman, 150 Fla.
185, 7 So. 2d. 177.

Through what an arc the pendulum of Negro 
rights has swung since the extreme position of the 
Bred Scott decision: Those rights reached dead cen­
ter when the thirteenth amendment to the United 
States constitution abolished the ancient wrong of 
Negro slavery. This court has now swung to the 
opposite extreme in its opinion subjecting white 
people to “involuntary servitude” to Negroes. I 
dissent.”

In the case of Williams versus Howard Johnson’s 
Restaurant, (Va.) (1959), U. S. C. A. 4th. Cir., F. 2d. 
845, a Negro attorney brought a class action in federal 
court against a restaurant located in Alexandria, Virginia 
seeking a declaratory judgment that a refusal to serve 
him because of race, violated, the Civil Rights Act of 
1875, etc.

On appeal, the Court of Appeals for the Fourth 
Circuit affirmed the lower court’s dismissal for want of 
of jurisdiction and failure to state a cause of action, on 
the ground that defendant’s restaurant, could refuse serv­
ice to anyone, not being a facility of interstate commerce,



47

and that the Civil Rights Act of 1875, did not embrace 
actions of individuals. Further, that as an instrument 
of local commerce, it was at liberty to deal with such per­
sons as it might select.

The court said:
‘‘Section 1 and 2 of the Civil Rights Act of 

1875, upon which the plaintiff’s position is based in 
part, provided that all persons in the United States 
should be entitled to the full and equal enjoyment 
of accommodations, advantages, facilities and privi­
leges of inns, public conveyances and places of 
amusement, and that any person who should vio­
late this provision by denying to any citizen the 
full enjoyment of any of the enumerated accom­
modations, facilities or privileges should for every 
such offense forfeit and pay the sum of $500 to 
the person aggrieved. The Supreme Court of the 
United States, however, held in Civil Rights Cases,
109 U. S. 3, that these sections of the Act were 
unconstitutional and were not authorized by either 
the Thirteenth or Fourteenth Amendments of the 
Constitution. The court pointed out that the Four­
teenth Amendment was prohibitory upon the states 
only, so as to invalidate all state statutes which 
abridge the privileges or immunities of citizens 
of the United States or deprive them of life, lib­
erty or property without due process of law, or deny 
to any person the equal protection of the laws; 
but that the amendment did not invest Congress 
with power to legislate upon the actions of in­
dividuals, which are within the domain of state



48

legislation. The Court also held that the question 
whether Congress might pass such a law in the 
exercise of its power to regulate commerce was not 
before it, as the provisions of the statute were not 
conceived in any such view (109 U. S. 19). With 
respect to the Thirteenth Amendment, the Court 
held that the denial of equal accommodations in_ 
inns, public conveyances and places of amusement 
does not impose the badge of slavery or servitude 
upon the individual but, at most infringes rights 
protected by the Fourteenth Amendment from state 
aggression. It is obvious, in view of that decision, 
that the present suit cannot be sustained by refer­
ence to the Civil Rights Act of 1875.

The plaintiff concedes that no statute of 
Virginia requires the exclusion of Negroes from 
pubic restaurants and hence it would seem that he 
does not r@ly upon the provisions of the Fourteenth 
Amendment which prohibits the states from mak­
ing or enforcing any law abridging the privileges 
and immunities of citizens of the United States 
or denying to any person the equal protection of the 
law. He points, however, to statutes of the state 
which requires the segregation of races in the facili­
ties furnished by. carriers and by persons engaged 
in the operation of places of public assemblage; he 
emphasizes the long established local custom of ex­
cluding Negroes from public restaurants and he 
contends that the acquiescence of the state in these 
practices amounts to discriminatory state action 
which falls within the condemnation of the Con­
stitution. The essence of the argument is that the



49

state licenses restaurants to serve the public and 
thereby is burdened with the positive duty to pro­
hibit unjust discrimination in the use and enjoy­
ment of the facilities.

This argument fails to observe the important 
distinction between activities that are required by 
the state and those which are carried out by vol­
untary choice and without compulsion by the people 
of the state in accordance with their own desires 
and social practices. Unless these actions are per­
formed in obedience to some positive provision of 
state law they do not furnish a basis for the pend­
ing complaint. The license laws of Virginia do not 
fill the void. Section 35-26 of the Code of Virginia, 
1950, makes it unlawful for any person to operate 
a restaurant in the state without an unrevoked 
permit from the Commissioner, who is the chief 
executive officer of the State Board of Health. The 
statute is obviously designed to protect the health 
of the community but it does not authorize state 
officials to control the management of the business 
or to dictate what persons shall be served. The 
customs of the people of the state do not constitute 
state action within the prohibition of the Four­
teenth Amendment. As stated by the Supreme 
Court of the United States in Shelly v. Kraemer, 
334 U. S. 1; 68 S. Ct. 836, 842:

‘Since the decision of this court in the Civil 
Rights Cases, 1883, 109 U. S. 3 * * * the prin­
ciple has become firmly embedded in our consti­
tutional law that the action inhibited by the first 
section of the Fourteenth Amendment is only



50

such action as may fairly be said £o be that of 
the states. That Amendment erects no shield 
against merely private conduct, however dis­
criminatory or wrongful. (Emphasis supplied.)”

In the case of State of Maryland versus ’ Drews, 
Et. Als., Cir. Court for Baltimore Co. (May 6, 1960), 
(Race Relations Law Reporter, Vol. 5, No. 2, Summer— 
1960) five persons, three white and two Negro, were pros­
ecuted in the Baltimore County, Maryland Circuit Court 
on the statutory charge of disturbing the peace. It was 
found that defendants had on the date of their arrest 
entered an amusement park owned by a private corpora­
tion, which unknown to defendants, had a policy of not 
serving colored persons. A special officer employed by 
the corporate owners informed defendants of the policy 
and asked the two colored defendants to leave. When they 
refused, all five defendants were requested to leave, but 
all refused. Baltimore County police who were then mm* 
moned to the area repeated the requests; but defendants 
again refused to leave; that over the physical resistance 
of defendants, they were arrested and removed from the 
premises.

The Court held: (1) that the park owner, though 
corporately chartered by the state and soliciting public 
patronage, could ‘arbitrarily restrict (the park’s) use to 
invitees of his selection’ etc. * * * (3) that such action 
occurred in a ‘place of public resort or amusement’ within 
terms of the statute allegedly violated, the quoted phrase 
clearly applying to all places where some segment of the 
public habitually gathers, and not merely to publicly



51

owned places where all members of the public without 
exception are permitted to congregate.

The Court said:
“The first question which arises in the case 

is the question whether an owner of private prop­
erty to which substantial numbers of persons are 
invited has any right to discriminate with respect 
to persons invited thereon, that is to say, whether 
such owner may exercise his own arbitrary free­
dom of selection in determining who will be ad­
mitted to and who will be permitted to remain upon 
his property under circumstances where such pri­
vate property is being used as a place of resort or 
amusement. This question has been clearly an­
swered in the affirmative by the authorities. In 
Madden v. Queens County Jockey Club, 72 N. E.
2d. 697 (Court of Appeals of New York), it was 
said at Page 698:

‘At common 3awr a person engaged in a public 
calling such as innkeeper or common carrier, 
was held to be under a duty to the general pub­
lic and was obliged to serve, without discrimina­
tion, all who sought service, * * * On the other 
hand, proprietors of private enterprises, such as 
places of amusement and resort, were under no 
such obligation, enjoying an absolute power to 
serve whom they pleased. * * * * *
‘The common-law power of exclusion, noted 
above, continues until changed by legislative 
enactment.’



52

The ruling therein announced was precisely 
adopted in the case of Greenfield v. Mai-yland 
Jockey Club, 190 Md. 96, the Court of Appeals, 
stating at Page-102 of its opinion that:

‘The rule that, except in cases of common- car­
riers, innkeepers and similar public callings, one 
may choose his customers is not archaic.’

The Court of Appeals also carefully pointed 
out in the Greenfeld case that the rule of the com­
mon law is not altered even in the case of a cor­
poration licensed by the State of Maryland. The 
doctrine of the Madden and Greenfeld cases, supra, 
announced as existing under the common law, has 
been held valid, even where the discrimination was 
because of race or color. See Williams v. Howard 
Johnson Restaurant, 268 F. 2d. 845 (restaurant) 
(CCA 4th) ; Slack v. Atlantic White Tower Sys­
tems, Inc,, No, 11073 U.S.D.C. for the District of
Maryland, D. R. et. al. Thomsen, J. (restaurant) ; 
Hackley v. Art Builders, Inc. et al (U.S.D.C.) for 
the District of Maryland, D. R. January 16, 1960 
(real estate development).

The right of an owner of property arbi­
trarily to restrict its use to invitees of his selection 
is the established law of Maryland. Changes in the 
rule of law conferring that right are for the leg- 

• islative and not the judicial branch of government.
We pass then to the second question: Did 

such action occur at a place of public resort or 
amusement? This involves a determination of the 
legislative meaning of the expression “place of



53

public resort or amusement”. If the legislative 
intent was that the words were intended to apply 
only to publicly owned places of resort or amuse­
ment, then, manifestly, the testimony would not 
support a conviction here. By the same token, if 
the expression was intended to apply only to places 
in which all members of the public without excep­
tion were authorized or permitted to congregate, 
again there would be no evidence to support con­
viction here. On the other hand, if the reasonable 
intent and purpose of the quoted phrase was to 
prohibit disorderly conduct in a place where some 
segment of the public habitually gathers and con­
gregates, the evidence would clearly justify a con­
viction.

The first suggested interpretation of the words 
must be rejected, because of the fact that the same 
statute uses the term ‘public worship’, and this fact 
utterly destroys a contention that the word ‘public’ 
has a connotation of public ownership because of 
our constitutional separation of church and state.

The second suggested interpretation is 
equally invalid, because its effect, in the light of 
the rule of law announced in the Greenfeld case, 
supra, would be the precise equivalent of the first 
suggested interpretation of the phrase. Moieovei, 
such an interpretation necessarily would mean that 
the police authorities would be powerless to prevent 
disorder or bring an end to conditions of unrest 
and potential disturbance where large numbers of 
the public may be in congregation. To suggest 
such an interpretation is to refute it.



54

In the opinion of this Court the statute has 
clear application to any privately owned place, 
where crowds of people other than the owner of 
the premises habitually gather and congregate, and 
where, in the interest of public safety, police au­
thorities lawfully may exercise their function of 
preventing disorder. See Askew v. Parker, 312
P. 2d. 342 (California). See also State v. Lanou- 
ette, 216 N.W. 870 (South Dakota).

It is the conclusion of the Court that 
the Defendants are guilty of the misdemeanor 
charged.”

In the case of Henry v. Greenville Airport Com., 
U. S. Dist. Court (1959) 175 F. Supp. 343, an action 
asserting federal jurisdiction on the basis of diversity of 
citizenship, general federal question, and as a class action 
under federal civil rights statutes was brought in a fed­
eral district court by a Negro against the Greenville, S. 0,, 
airport commission, members thereof, and the airport 
manager. The complaint alleged that the manager even 
though informed that plaintiff was an interstate traveler, 
ordered him to use a racially segregated waiting room. 
Plaintiff’s motion for a preliminary injunction to restrain 
defendant from making distinctions based on color relative 
to services at the airport was denied in addition to other 
reasons, because it was not alleged that defendants had de­
nied him any right under color of state law. The allegation 
that defendants received contributions from The Govern­
ment’ to construct and maintain portions of the airport was 
also stricken because it was also held to have nothing to do 
with the claim that he had been deprived of a civil right



55

under state law. Defendant’s motion to dismiss was 
granted because plaintiff not having alleged that any 
thing complained of was done under color of a specified 
state law, failed to state a cause of action under Section 
1343 of Title 28 and it being inferable from the com­
plaint that he went into the waiting room, in order to 
instigate legislation rather than in quest of waiting room 
facilities, he had no cause of action under Section 1981 of 
Title 42 which was said to place duties on Negroes equal 
to those imposed on white persons and to confer no rights 
on Negroes superior to those accorded white persons. It 
was emphasized that activities which are required by the 
state, must be distinguished from those carried out by 
voluntary choice by individuals in accordance with their 
own desires and social practices, the latter kind not being 
state action.

The court said:
The plaintiff speaks of discrimination with­

out unequivocally stating any fact warranting 
an inference of discrimination. The nearest thing 
to an unequivocal statement in his affidavit is the 
asserted fact that the purported manager of the 
Greenville Air Terminal ‘advised him that “we 
have a waiting room for colored folks over there . 
Preceding that statement plaintiff s affidavit con­
tains the bald assertion that the manager ‘ordered 
me out’. However, the only words attributed to 
the manager by the plaintiff hardly wan ant any 
such inference or conclusion. A like comment piop- 
erly should be made concerning the further as­
sertion in plaintiff’s affidavit that he ‘was required



56

to be segregated’. What that loose expression 
means is anyone’s guess. From whom was he segre­
gated? The affidavit does not say. Was he segre­
gated from his family or from his friends, ac­
quaintances or associates, from those who desired 
his company and he theirs? There is nothing in the 
affidavit to indicate such to be true. Was he seg­
regated from people whom he did not know and who 
did not care to know him? The affidavit is silent as 
to that also. But suppose he was segregated from 
people who did not care for his company or asso­
ciation, what civil right of his was thereby in­
vaded? If he was trying to invade the civil rights 
of others, an injunction might be more properly 
invoked against him to protect their civil rights. 
I know of no civil or uncivil right that anyone has, 
be he white or colored, to deliberately make a nui­
sance of himself to the annoyance of others, even 
in an effort to create or stir up litigation. The 
right to equality before the law, to be free from dis­
crimination, invests no one with authority to re­
quire others to accept him as a companion or social 
equal. The Fourteenth Amendment does not reach 
that low level. Even whites, as yet, still have the 
right to choose their own companions and associ­
ates, and to preserve the integrity of the race with 
which God almighty has endowed them.

Neither in the affidavit nor in the com­
plaint of the plaintiff is there any averment or 
allegation that whatever the defendants may have 
done to the plaintiff was done at the direction or 
under color of state law. It is nowhere stated in



57

either what right the plaintiff claims was denied 
him under color of state law. A state law was 
passed in 1928 that ‘created a Commission * * * 
to be known as Greenville Airport Commission’. 
That Commission consists of five members, two se­
lected by the City Council of the City of Green­
ville, two by the Greenville County Legislative 
Delegation, and the fifth member by the majority 
vote of the other four. The Commission so created 
is ‘vested with the power to receive any gifts or 
donations from any source, and also to hold and 
enjoy property, both real and personal, in the 
County of Greenville, * * * for the purpose of estab­
lishing and 'maintaining aeroplane landing fields 
* * * • and to make such rules and regulations as 
may be necessary in the conduct and operation of 
said aeroplane landing fields:’ (Emphasis added). 
Further, the Act authorizes the ‘The City of Green­
ville * * * to appropriate and donate to said Com­
mission such sums of money as it may deem expedi­
ent and necessary for the purpose aforesaid’. There 
is nothing in the Act that requires that Commission 
to maintain waiting rooms of any sort, segregated 
or unsegregated.

There is nothing in the affidavit or com­
plaint of the plaintiff which could be tortured into 
meaning that the defendants had denied the plain­
tiff the use of the authorized airport landing fields. 
He had a ticket which authorized him to board a 
plane there. He was not denied that right. In fact 
there is no clear cut statement of any legal duty 
owed the plaintiff that defendants breached; and



58

there is no showing that the plaintiff was damaged 
in any amount by anything done by the defendants, 
or by any one of them, under color of state law.”

*  *  *  *  *  *  *  *

“The jurisdiction of this court is invoked by 
the plaintiff under Section 1343, Title 28, U. S. 
Code. It is appropriate, therefore, that we con­
sider the extent of the jurisdiction that is therein 
conferred on this court. By it district courts are 
given jurisdiction of civil actions * * to redress 
the deprivation, under color of state law, * * * 
of any right, privilege, or immunity secured by the 
Constitution of the United States or by any Act of 
Congress providing for equal rights of citizens 
* * Hence we must look to the complaint to 
ascertain (1) what right plaintiff claims he has 
been deprived of,. (2) secured by what constitu­
tional provision or Act of Congress providing for 
equal rights of citizens, and (3) under color of what 
state law? It is not enough for the plaintiff to 
allege that he has been deprived of a right or a 
privilege. He must go further and show what right, 
or privilege, he has been deprived of, by what con­
stitutional provision or Act of Congress it is se­
cured, and under color of what state law he has 
been deprived of his stated right. If the plaintiff 
fails to allege any one or more of the specified ele­
ments his action will fail as not being within the 
jurisdiction of this court.

As pointed out hereinabove, there is no alle­
gation in the complaint that anything complained 
of was done under color of a specified state law.



59

The Court lias been pointed to no state law requir­
ing the separation of the races in airport waiting 
rooms, and its own research has developed none. 
Moreover, there is no state law that has been 
brought to the Court’s attention, or that it has 
discovered, which requires the defendants, or any­
one else, to maintain waiting rooms at airports, 
whether segregated or unsegregated. Hence the ad­
vice which it is alleged that the ‘purported man­
ager’ of the Airport gave the plaintiff, saying 
‘we have a waiting room for colored folks over 
there,’ could not have been given under color of a 
state law since there is no state law authorizing 
or commanding such action.

In connection with the tendered issue of the 
court’s jurisdiction, plaintiff claims that he has a 
cause of action arising under Section 1981, Title 
42, U. S. Code. It provides:

“All persons within the jurisdiction of the United 
States shall have the same right in every state 
* * * to the full and equal benefit of all laws 
and proceedings for the security of persons and 
property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, 
taxes, licenses and exactions of every kind * * *’ 
(Emphasis added).

The undoubted purpose of Congress in enact­
ing Section 1981, was to confer on negro citizens 
rights and privileges equal to those enjoyed by white 
citizens and, at the same time, to impose on them 
like duties and responsibilities. The court’s attention



60

has been directed to no law that confers on any 
citizen, white or negro, the right or privilege of 
stirring up racial discord, of instigating strife be­
tween the races, of encouraging the destruction of 
racial integrity, or of provoking litigation, espe­
cially when to do so the provoker must travel a 
great distance at public expense.

It is inferable from the complaint that there 
were waiting room facilities at the airport, but 
whether those accorded the plaintiff and other 
negroes were inferior, equal or superior to those- 
accorded white citizens is not stated. It is also 
inferable from the complaint that the plaintiff 
did not go to the waiting room in quest of waiting 
room facilities, but solely as volunteer for the pur­
pose of instigating litigation which otherwise would 
not have been started. The Court does not and 
should not look with favor on volunteer trouble 
makers or volunteer instigators of strife or litiga­
tion. A significant feature of Section 1981, which 
by some is little noticed and often ignored, is that 
it places squarely on negroes obligations, duties and 
responsibilities equal to those imposed on white citi­
zens, and that said Section does not confer on 
negroes rights and privileges that are superior and 
more abundant than those accorded white citizens.

Williams v. Howard Johnson’s Restaurant, 
et. al. argued before the Fourth Circuit Court of 
Appeals June 15, 1959, is in many respects similar 
to the instant case. As here, the plaintiff had a gov­
ernment job. He went from his place of public em­
ployment into the State of Virginia to demand that



61

he be served in a restaurant known to him to be 
operated by its owner, the defendant, solely for 
white customers. He invoked the jurisdiction of the 
court both on its equity side and on its law side 
for himself and for other negroes similarly sit­
uated. The suit was dismissed by the district court. 
Upon the hearing it was conceded that no statute 
of Virginia required the exclusion of negroes from 
public restaurants. Hence the Fourteenth Amend­
ment didn’t apply. No action was taken by the 
defendant under color of state law. Notwithstand­
ing the absence of a state law applicable to the sit­
uation, the plaintiff argued that the long estab­
lished local custom of excluding negroes from white 
restaurants had been acquiesced in by Virginia for 
so long that it amounted to discriminatory state 
action. The Appellate Court disagreed, and so do I. 
As pointed out in Judge Soper’s opinion in the 
Howard Johnson case. ‘This argument fails to ob­
serve the important distinction between activities 
that are required by the state and those which are 
carried out by voluntary choice and without com­
pulsion by the people of the state in accordance 
with their own desires and social practices.’ Fur­
ther Judge Sopor said:

‘The customs of the people of a state do 
not constitute state action within the prohibition 
of the Fourteenth Amendment. As stated by the 
Supreme Court of the United States in Shelly v. 
Kraemer, 334 U.S. 1, 68 S. Ct. 836, 842 (92 
L.ED. 1161):



62

‘Since the decision of this court in the Civil 
Rights Cases, 1883, 109 U. S. 3 * * * the prin­
ciple has become firmly embedded in our con­
stitutional law that the action inhibited by the 
first section of the Fourteenth Amendment is 
only stick action as may fairly be said to be 
that of the States. That Amendment erects no 
shield against merely private conduct, however 
discriminatory or wrongful.’ ” (Emphasis sup­
plied)

To say that the right of one person ends 
where another’s begins has long been regarded as 
a truism under our system of constitutional gov­
ernment. While the rights and privileges of all 
citizens are declared to be equal by our constitu­
tion there is no constitutional command that they 
be exercised jointly rather than severally; and, if 
there were such a constitutional command, the 
rights and privileges granted by the constitution 
would be by it also destroyed. A constitution so 
written or interpreted would be an anomaly.”

In the case of Wilmington Parking Authority and 
Eagle Coffee Shoppe, Inc. versus Burton, (Del. - 1960) 
157 A. 2d.. 894, a Delaware Negro citizen was refused 
service because of race by a Wilmington restaurant lo­
cated in a leased space in a public parking building 
owned by the Wilmington Parking Authority, a state 
agency. He brought a class action in a state chancery 
court asking for a declaratory judgment that such dis­
crimination violated the Fourteenth Amendment and for 
injunctive relief.



63

On appeal the state supreme court reversed the 
trial court.

The appellate court held the fundamental problem 
to be whether the state, directly or indirectly, ‘in reality’, 
created or maintained the facility at public expense or 
controlled its operation; for only if such was the case the 
Fourteenth Amendment would apply.

The court held that the Authority did not locate 
the restaurant within the building for the convenience 
and service of the public using the parking facilities and 
had not, directly or indirectly, operated nor financially 
enabled it to operate.

It was held the Authority’s only concern in the 
restaurant—the receipt of rent which defrayed part of the 
operating expense of providing the public with off-street 
parking—was insufficient to make the discriminatory act 
that of the state. And the fact that the City of Wilming­
ton had originally ‘advanced’ 15% of the facilities, cost 
(the balance being financed by an Authority bond issue) 
was held not to make the enterprise one created at pub­
lic expense for ‘slight contributions’ were insufficient to 
cause that result.

Finally, it was held the fact that the leasee sold 
alcohol beverages did not make it an inn or tavern, which 
by common law must not deny service to any one asking 
for it; rather, it functioned primarily as a private res­
taurant, which by common law and state statute might 
deny service to anyone offensive to other customers to tne 
injury of its business.



64

“We think the case before us is distinguishable 
from the cases relied on by the plaintiff. In the 
first place, it is quite apparent, nor is there any 
suggestion to the contrary made by the plaintiff, 
that the establishment of a restaurant in the space 
occupied by Eagle is a pure happenstance and was 
not intended as a service to the public using the 
parking facility. As far as the record before 
us indicates, it was immaterial to the Author­
ity what type of business would occupy the 
space now occupied by Eagle. The Authority’s sole 
interest was in the obtaining of money in the form 
of rent. That money is thereafter used by the 
Authority to support the public purpose of sup­
plying off-street parking from which the plaintiff 
and the rest of the public benefit.

It is further clear from this record, and 
from the Ranken case, that at no time did the 
Authority contemplate the establishment of a res­
taurant in the structure for the use of its parking 
patrons. On the contrary, the commercial leases 
entered into by the Authority were given to the 
highest bidders in terms of rent after the solici­
tation of bids by public advertisement. The deci­
sion to lease to a particular lessee was made upon 
the considerations of the applicants’ financial re­
sponsibility and the amount of rent agreed to be 
paid. It is thus apparent that this case completely 
lacks the element of furnishing service to the public 
through the means of a lease to private enterprise. 
The only purpose for this lease is to supply a por­
tion of the additional money required to permit



65

the Authority to furnish the only public service 
it is authorized to furnish, viz., public off-street 
parking.

The plaintiff argues that the use of public 
money to purchase a portion of the land required 
brings this case within the rule of the cited author­
ities. But we think not. At the most, approximately 
15% of the total cost is represented by the public 
‘advance’ of money. To accept the plaintiff’s view 
would require us in all similar cases to measure the 
respective contributions made by public and private 
money and to determine at what point the public 
contribution changes the nature of the enterprise. 
It is obvious that there is no guide for judicial 
speculation upon such a change. If it is said that 
the contribution of any public money is sufficient 
to change the nature of the enterprise, the answer 
is that it has been held that a slight contribution 
is insufficient. Cf. Eaton v. Board of Managers,
D. C. 164 F. Supp. 191.

Fundamentally, the problem is to be resolved 
by considerations of whether or not the public gov­
ernment, either directly or indirectly, in reality, is 
financing and controlling the enterprise which is 
charged with racial discrimination. If such is the 
case, then the Fourteenth Amendment applies; if 
it is not the case, the operators of the enterprise 
are free to discriminate as they will. Shelley v. 
Kraemer, 334 U.S.. 1, 68 S. Ct. 836, 842, 91 L. Ed. 
1161. We neither condemn nor approve such pri­
vate discriminatory practices for the courts are 
not the keepers of the morals of the public. We



66

apply the law, whether or not that law follows the 
current fashion of social philosophy.

Particularly is this true of a state court 
which is called upon in this field to apply rules 
made for us by the Supreme Court of the United 
States which, in the case of this state, have resulted 
in the discard of a large portion of our local law 
dealing with the emotional subject of racial rela­
tions. We are, of course, bound to follow the Fed­
eral decisions, but we think we are equally bound, 
when they erode our local law, not to extend them 
to a point beyond which they have not as yet gone.

We think the Authority and, through it, the 
State of Delaware does not operate, either directly 
or indirectly, the business of Eagle; has not located 
the business of Eagle within the facility for the 
convenience and service of the public using the 
parking service; and has not financially enabled 
the business of Eagle to operate. The only concern 
the Authority has with Eagle is the receipt of rent, 
without which it would be unable to afford the pub­
lic the service of off-street parking. This circum­
stance, we think, is not sufficient to make the dis­
criminatory act of Eagle the act of the State of 
Delaware.

It follows, therefore, that Eagle, in the con­
duct of its business, is acting in a purely private 
capacity. It acts as a restaurant keeper and, as 
such, is not required to serve any and all persons 
entering its place of business, any more than the 
operator of a bookstore, barber shop, or other re-



67

tail business is required to sell its product to every 
one. This is the common law, and the law of Dela­
ware as restated in 24 Del C Par. 1501 with respect 
to restaurant keepers. 10 Am. Jur., Civil Rights 
PP 21, 22; 52 Am Jur. Theatres PP 9; Williams 
v. Howard Johnson’s Restaurant, 4 Cir. 268 F. 2d. 
845. We, accordingly, hold that the operation of 
its restaurant by Eagle does not fall within the 
scope of the prohibitions of the Fourteenth Amend­
ment.

Finally, plaintiff contends that 24 Del. C.
PP 1501, has no application in the case at bar be­
cause Eagle, since it serves alcoholic beverages to 
its patrons, is a tavern or inn and not a restaurant.
It is argued that, at common law, an inn or tav­
ern could deny services to no one asking for it.
We think, however, that Eagle is primarily a res­
taurant and thus subject to the provisions of 24 
Del. C. PP 1501, which does not compel the oper­
ator of a restaurant to give service to all persons 
seeking such.”

In the case of Slack v. Atlantic White Tower Sys­
tem, Inc., (U.S. Dist. Court, Maryland, 1960), 181 F. 
Supp. 124, a Negress, who because of race had been re­
fused food service by a Baltimore, Maryland, lestauiant 
(one of an interstate chain owned by a Delaware Cor­
poration) brought a class action in federal court for de­
claratory judgment and injunctive relief against the coi- 
porate owner claiming that her rights undei the constitu­
tion and laws of the United States had been theieby 
denied.



68

The court held that segregated restaurants in 
Maryland were not required by any state statute or deci­
sional law, but were the result of individual proprietors 
business choice.

The court also rejected plaintiff’s argument that 
defendant as a licensee of the state to operate a public 
restaurant, had no right to exclude plaintiff from service 
on a racial basis; rather, the restaurant’s common law 
right to select its clientele (even on a color basis), was 
still the law of Maryland.

Plaintiff’s further contention that the state’s ad­
mission of this foreign corporation and issuance of a 
restaurant license to it ‘invests the corporation with a pub­
lic interest’ sufficient to make its racially exclusive action 
the equivalent of state action was likewise rejected, the 
court holding that a foreign corporation had the same 
rights as domestic business corporations, and that the 
applicable state license laws were not regulatory. And 
statements in white primary cases, that when individuals 
or groups “move beyond matters of merely private con­
cern’ and ‘act in matters of high public interest” they be­
come “representatives of the State” subject to Fourteenth 
Amendment restraints, were held inapposite to this type 
situation where defendant had not exercised any powers 
similar to those of a state or city.

The Court said:
“Plaintiff seeks to avoid the authority of 

Williams v. Howard Johnson’s Restaurant. 4 Cir.,
268 F. 2d. 845, by raising a number of points not



69

discussed therein, and by arguing that in Maryland 
segregation of the races in restaurants is required 
by the State’s decisional law and policy, whereas, 
she argues, that was not true in Virginia, where 
the Williams case arose. She also contends that the 
Williams case was improperly decided and should 
not be followed by this Court.

* * * * * * * *
Such segregation of the races as persists in 

restaurants in Baltimore is not required by any 
statute or decisional law of Maryland, nor by any 
general custom or practice of segregation in Balti­
more City, but is the result of the business choice 
of the individual proprietors, catering to the de­
sires or prejudices of their customers.

Plaintiff’s next argument is that defend­
ant, as a licensee of the State of Maryland operat­
ing a public restaurant or eating facility, had no 
right to exclude plaintiff from its services on a 
racial basis. She rests her argument on the com­
mon law, and on the Maryland license law.

In the absence of statute, the rule is well 
established that an operator of a restaurant has the 
right to select the clientele he will serve, and to 
make such selection based on color, if he so desires. 
He is not an innkeeper charged with a duty to serve 
everyone who applies. Williams v. Howard John­
son’s Restaurant, 268 F. 2d. at 847; Alpaugh v. 
Wolverton, 184 Va. 943; State v. Clyburn, 101 
S. Ed. 2d. 295; and authorities cited in those cases. 
There is no restaurant case in Maryland, but the



70-

rule is supported by statements of the Court of 
Appeals of Maryland in Grenfeld v. Maryland 
Jockey Club, 190 Md. 96, 102, and in Good Citizens 
Community Protective Association v. Board of 
Liquor License Commissioners, 217 Md. 129, 131.

Art. 56, Secs. 151 et: seq., of the Ann. Code 
of Md., 1939 ed. (163 et seq of the 1957 ed), deals 
with licenses required of persons engaged in all 
sorts of businesses. Secs. 166 (now 178) provides: 
‘Each person, firm or corporation, resident or non­
resident, operating or conducting a restaurant or 
eating place, shall, before doing so take out a license 
therefor, and pay an annual license fee of Ten Dol­
lars ($10.00) for each place of business so oper­
ated except that in incorporated towns and cities 
of 8,000 inhabitants or over, the fee for each place 
of business so operated shall he Twenty-Five Dol­
lars ($25.00)’. The Attorney General of Maryland 
has said that ‘A restaurant is generally understood 
to be a place where food is served at a fixed price 
to all comers, usually at all times.’ This statement 
was made in an opinion distinguishing a restaurant 
from a boarding house for licensing purposes. 5 
Op. Atty. Gen. 303. It was not intended to express 
opinion contrary to the common law right of a 
restaurant owner to choose his customers. The 
Maryland Legislature and the Baltimore City 
Council have repeatedly refused to adopt bills re­
quiring restaurant owners and others to serve all 
comers regardless of race; several such bills are 
now pending. See Annual Report of Commission, 
January 1960, p. 29.



71

Plaintiff contends that defendant is engaged 
in interstate commerce, that its restaurant is an in­
strumentality or facility of interstate commerce 
and thus subject to the constitutional limitations 
imposed by the Commerce Clause (Const. Art. 1 
sec 8) ; and that defendant's refusal to serve plain­
tiff, a traveler in interstate commerce, constituted 
an undue burden on that commerce.

A similar contention was rejected in Wil­
liams v. Howard Johnson’s Restaurant, 2G8 F. 2d. 
at 848. It would be presumptuous for me to en­
large on Judge Soper’s opinion on this point.

‘The action inhibited by the first section of 
the Fourteenth Amendment is only such action as 
may fairly be said to be that of the states. Thai 
Amendment erects no shield against merely private 
conduct, however discriminatory or wi ongful. 
Shelley v. Kraemer, 334 U.S. 1, 13. Plaintiff seeks 
to avoid this limitation by arguing that the admis­
sion by the state of a foreign corporation and the 
issuance to it of a license to operate a restaurant 
‘invests the corporation with a public intei est suf­
ficient to make its action in excluding patrons on 
a racial basis the equivalent of state action.

The fact that defendant is a Delaware cor­
poration is immaterial. Once admitted to do busi­
ness in the State of Maryland, it has the same 
rights and duties as domestic corporations engaged 
in the same business. This factor does not distin­
guish the case from Williams v. Howard Johnson s 
Restaurant, where the state action question was 
discussed at p. 847.



72

The license laws of the State of Maryland 
applicable to restaurants are not regulatory. See 
Maryland Theatrical Corp. v. Brennan, 180 Md. 
377, 381, 382. The City ordinance, No. 1145, No­
vember 27, 1597, adding Sec. 60-14 to Art. 12 of 
the Baltimore City Code, 1950 ed. which was not 
offered in evidence or relied on by plaintiff, is 
obviously designed to protect the health of the com­
munity. Neither the statute ncr the ordinance au­
thorizes State or City officials to control the man­
agement of the business of restaurant or to dictate 
what persons shall be served.

Even in the case of licensees, such as race 
tracks and taverns, where the business is regulated 
by the state, the licensee does not become a state 
agency, subject to the provisions of the Fourteenth 
Amendment, Madden v. Queen’s County Jockey 
Club, 296 N. Y. 243, 72 N. E. 2d. 697, cert. den. 
332 U. S. 761, cited with approval in Greenfeid v. 
Maryland Jockey Club, 190 Md. at 102; Good Citi­
zens Community Protective Association v. Board 
of Liquor License Commissioners 217 Md. 129. No 
doubt defendant might have had plaintiff arrested 
if she had made a disturbance or remained at a 
table too long after she had been told that she 
would only be sold food to carry out to her car. But 
that implied threat is present whenever the pro­
prietor of a business refuses to deal with a cus­
tomer for any reason, racial or other, and does 
not make his action state action or make his busi­
ness a state agency. Plaintiff cites Valle v. Stengel, 
3 Cir. 176 F. 2d. 697. In that case a sheriff’s



73

eviction of a negro from a private amusement 
park was a denial of equal protection of the laws 
because under the New Jersey antidiscrimination 
law the Negro had a legal right to use the park 
facilities.

Plaintiff cites such cases as Nixon v. Con­
don, 286 U. S. 73, and Smith v. Allwright 321 U.S. 
649, for the proposition that when individuals or 
groups ‘move beyond matters of merely private con­
cern’ and ‘act in matters of high public interest’ 
they become ‘representatives of the State’ subject 
to the restraints of the Fourteenth Amendment. 
The distinction between holding a primary election 
and operating a restaurant is obvious, and has al­
ways been recognized by the courts. Defendant has 
not exercised powers similar to those of a state 
or city.

In Kerr v. Enoch Pratt Free Library of 
Baltimore City, 4 Cir. 149 F. 2d. 212, also relied on 
by plaintiff, ‘the Library was completely owned and 
largely supported * * * by the City; * * * in practi­
cal effect its operations were subject to the City’s 
control’, as the Fourth Circuit pointed out in dis­
tinguishing the Library case from Eaton v. Board 
of Managers of the James Walker Memorial Hos­
pital, 4 Cir. 261 F. 2d. 521, 527.

The argument that state inaction in the face 
of uniform discriminatory customs and practices 
in operating restaurants amounts to state action 
was rejected in Williams v. Howard Johnson s Res­
taurant, 4 Cir. 268, F. 2d. 845. Moreover, as we



74

have seen, the factual premise for the argument 
is not found in the instant case.”

In the case of Fletcher versus Coney Island, Ira 
(Ohio 1956), 134 N. E. 2d. 371, a Negro woman sought |  
enjoin the operator of a private amusement park fra  
refusing her admittance because of her race or color.

In holding that defendant’s remedy was to procee 
under the State’s anti-discrimination law, and not b 
way of injunction, the Supreme Court of Ohio said:

“In the case of Madden v. Queens County 
Jockey Club, Inc., 296 N. Y. 249, 253, 72 N. E. 
2d. 697, 698, 1 A. L. R. 2d. 1160, 1162, the generally 
recognized rule is stated as follows:

‘At common law a person engaged in a public- 
calling, such as an inkeeper or common car­
rier, was held to be under a duty to the general 
public and was obliged to serve, without dis­
crimination, all who sought service. * * * On the 
other hand, proprietors of private enterprises 
such as places of amusement and resort, were 
under no such obligation, enjoying an absolute 
power to serve whom they pleased. * * *

“The common-law power of exclusion, rioted 
above, continues until changed by legislative enact­
ment.” (Emphasis supplied.)

“See also Bailey v. Washington Theatre Co., 
218 Ind. 34 N. J. 2d. 17; annotation, 1 A. L. R. 
2d. 1165; and 10 American Jurisprudence 915, Sec­
tion 22.”



75

“It will be thus observed that the owner or 
operator of a private amusement park or place of 
entertainment may arbitrarily and capriciously re­
fuse admittance to whomsoever he pleases, be they 
Africans, Chinese, East Indians, Germans, Italians, 
Poles, Russians or any other racial group, in the 
absence of legislation requiring him to admit them.” 

* * * * * *
“In summary, the decision in this case rests 

squarely on the proposition that at common law 
those who own an'd operate private places of amuse­
ment and entertainment can admit or exclude 
whomsoever they please, and that, since such es­
tablishments are open to all only through legisla­
tive enactments, those enactments govern the sit­
uation, and where as a part of those enactments 
a specific remedy or penalty is prescribed for their 
violation, such remedy or penalty is exclusive. The 
adequacy or appropriateness thereof being a mat­
ter of legislative concern. This decision is limited 
to this precise point and should be so read and ap­
praised.

It should be obvious that the present case 
bears no relation whatsoever to the problem of the 
segregation of pupils in the public schools, or to the 
exclusion of a qualified person from an institution 
of higher learning supported by public funds or a 
person from a publicly owned or operated park or 
recreation facility, because of his race or color.”

In the case of Tamelleo, et al. v. New Hampshire 
Jockey Club, Inc., (N. H. 1960), 163 A. 2d. 10, the plain-



76

tiffs presented themselves at the defendant’s race track 
but were refused admission by the action of one of defend­
ant's agents who ordered them to leave the premises be­
cause in his judgment their presence was inconsistent 
with the orderly and proper conduct of a race meeting. 
The plaintiffs then left the premises and thereafter in­
stituted these proceedings.

The court said:
“It is firmly established that at common law 

proprietors of private enterprises such as theatres, 
race tracks, and the like may admit or exclude any­
one they choose. Woolcott v. Shubert, 217 N. Y. 
212, 222, 111 N. E. 829, L. R. A. 1916 E. 248; Mad­
den v. Queens County Jockey Club, 296 N. Y. 249,
72 N. E. 697, certiorari denied 332 U. S. 761, 68 
S. Ct. 68, 922 Ed. 346; 1 A. L. R. 2d 1165 annota­
tion; 86 C. J. S. Theatres and shows, sec. 31. While 
it is true, as the plaintiffs argue and the defend­
ants concede, that there is no common-law right 
in this state to operate a race track where pari­
mutuel pools are sold, horse racing for a stake or 
price is not gaming or illegal. Opinion of the Jus­
tices, 73 N. H. 625, 631, 63 A. 505.

“However, the fact that there is no common- 
law right to operate a pari-mutuel race track is 
not decisive of the issue before us. The business 
is still a private enterprise since it is affected by 
no such public interest so as to make it a public 
calling as is a railroad for example. Garifine v. 
Monmouth Park Jockey Club, 29 N. J. 47, 148 A.
2d. 1; Madden v. Queens County Jockey Club, su-



77

pra, Regulation by the state does not alter the 
nature of the defendant’s enterprise, nor does 
granting a license to conduct pari-mutuel pools. 
North Hampton Racing and Breeders Association 
v. New Hampshire Racing Commission, 94 N. H. 
156, 159, 48 A. 2d. 472; Greenfeld v. Maryland 
Jockey Club, 190 Md. 96, 57 A. 2d. 335. As the 
North Hampton case points out, regulation is nec­
essary because of the social problem involved. Id., 
94 N. H. 159, 48 A. 2d. 475.

“We have no doubt that this state adheres to 
the general rule that the proprietors of a private 
calling possess the common-law right to admit or 
exclude whomever they choose. In State v. United 
States & C. Express, 60 N. H. 219, after holding 
that a public carrier cannot discriminate, Doe, C. J., 
stated, ‘Others, in other occupations, may sell their 
services to some, and refuse to sell to otners. Id. 
60 N H 261.” (Emphasis supplied.)

“In Batchelder v. Hibbard, 58 N. H. 269, the 
Court states that a license, sofar as future enjoy­
ment is concerned, may be revoked any time. A 
ticket to a race track is a license and it may be 
revoked for anv reason in the absence of a statute 
to the contrary. Marrone v. Washington Jockey 
Ch,b 227  U. S 633, 33 S. Ct. 40!, 61 L. Ed. 670” 

* * * * * *
“The plaintiffs also contend that if this be 

our law, we should change it in view of altered 
social concepts. This argument ignoies altogethei 
certain rights of owners and taxpayers, which still



78

exist in this state, as to their own property. Fur­
thermore, to adopt the plaintiff’s position would re­
quire us to make a drastic change in our public 
policy which, as we have often stated, is not a prop­
er function of this court.

“The plaintiffs take the position that R. S. A. 
284: 39, 40 as inserted by Laws 1959, c. 210, sec. 
14, is invalid as an unconstitution delegation of 
legislative power. We cannot agree. Laws 1959, c. 
210 is entitled: ‘An act relative to Trespassing on 
Land of Another and at Race Tracks and Defining 
Cultivated Lands”. Section 4 (R. S. A. 284:39, un­
der the heading ‘Trespassing’ reads as follows: 
‘Rights of Licensee. Any licensee hereunder shall 
have the right to refuse admission to and to eject 
from the enclosure of any race track where is held 
a race or race meet licensed hereunder any person 
or persons whose presence within said enclosure is 
in the sole judgment of said licensee inconsistent 
with the orderly and proper conduct of a race 
meeting.’ As applied to this case this provision 
is substantially declaratory of the common law 
which permits owners of private enterprises to re­
fuse admission or to eject anyone whom they de­
sire. Garifine v. Monmouth Park Jockey Club, 29 
N. J. 47, 148 A. 2d. 1.

“The penalty provision, section 4 (R. S. A. 
284:40) states: ‘Penalty. Any person or persons 
within said enclosure without right or to whom ad­
mission has been refused or who has previously been 
ejected shall be fined not more than one hundred 
dollars or imprisoned not more than one year or



79

both.’ This provision stands no differently than 
does that imposing a penalty upon one who enters 
without right the cultivated or posted land of an­
other. R. S. A. 572:15 (supp) as amended. One 
charged with either of these offenses or with tres­
pass at a race track would of course have a right 
to trial and the charge against him would have to 
be proved, as- in any other criminal matter. No 
license to pass any law is given to the defendant.
The situation is clearly unlike that condemned in 
Ferretti v. Jackson, 88 N. H. 296, 188 A. 474, and 
Opinion of the Justices, 88 N. H. 497, 190 A. 713, 
upon which the plaintiffs rely, where the milk 
board was given unrestricted and unguided discre­
tion, in effect, to make all manners of laws within 
the field of its activity. It thus appears that there 
is no unlawful delegation of legislative powers in 
the present case.”

In the case of Hall v. Commonwealth, (Va. 1948) 
49 S. E. 2d. 369, Appeal Dismissed, See 69 S. Ct. 240), 
a Jehovah’s Witness, was convicted for trespassing on pri­
vate property. He sought appellate relief on the ground 
that the conviction violated his right to freedom of speech, 
freedom of the press, freedom of assembly, and freedom 
of worship guaranteed to him by the Constitutions of the 
United States and the State of Virginia.

The court said:
“The statute under which the accused was 

prosecuted is Chapter 165, Acts of 1934, sec. 4480a, 
Michie’s 1942 Code, which provides: ‘That if any



80

person shall without authority of law go upon or 
remain upon the lands or premises of another, after 
having been forbidden to do so by the owner, lessee, 
custodian or other person lawfully in charge or pos­
session of such land he shall be deemed guilty of a
misdemeanor, etc. * * * * *

* « * * » *
“Mr. Justice Black in Martin v. City of 

Struthers, 319 U. S. 141, at page 147, 63 S. Ct. 
862, at page 865, 87 L. Ed. 1313, speaking of this 
particular statute and other statutes of similar 
character, said: ‘Traditionally the American Law 
punishes persons who enter onto the property of 
another after having been warned by the owner to 
keep off. General trespass after warning statutes 
exist in at least twenty states, while similar stat­
utes of narrower scope are on the books of at least 
twelve states more.’

“We find nothing in the statute when prop­
erly applied which infringes upon any privilege 
or right guaranteed to the accused by the Federal 
Constitution.”

*  *  *  *  ' *  *

“The most recent expressions of the Supreme
Court of the United States on this subject are found
in Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276,
90 L. Ed. 265, and Tucker v. Texas, 326 U. S.
517, 66 S. Ct. 274, 90 L. Ed. 274, both of which
were decided by a divided court.

* * * * * *
“In concluding the discussion the New York 

court said: ‘Our purpose in thus briefly analyzing



81

those decisions (Marsh v. Alabama and Tucker v. 
Texas) is to show that they do not (nor do any 
others of which we know) go nearly so far as ap­
pellants would have us go here. Parkchester, like 
Chickasaw, Alabama, and the Federal housing com­
munity in Texas, is privately owned, but there the 
similarity as to facts ends. It is undisputed that 
this defendant has never sought in any way to limit 
the Witnesses’ activities on the streets or sidewalks 
of Parkchester some of which are privately and 
some publicly owned. The discrimination which 
this defendant’s regulation inhibits was not on the 
streets, sidewalks or other public or quasi-public . 
places, but inside of and into, the several floors 
and inner hallways of multiple dwellings.’ 

* * * * * *
“We think the Bohnke case, supra, is still 

the law and leaves solid the regulation of door-to- 
door calls along public streets. But regal dless of 
the Bohnke ruling, no case we know of extends the 
reach of the bill of rights so far as to pi esci ibe 
the reasonable regulation by an owner, of conduct 
inside his multiple dwelling. So holding, we need 
not examine the larger question of whether the per­
tinent clauses of the Constitutions have anything 
to do with rules made by any dwelling proprietors, 
governing conduct inside their edifices.

In the case of State versus Hunter, 114 So. 76, 
164 La. 405, 55 A. L. R. 309, Aff. Hunter v. State of La., 
48 S. Ct. 158, 205 U. S. 508, 72 L. Ed. 393, the Supreme 
Court of Louisiana said:



82

“The defendant was convicted of the offense 
of going on the premises of a citizen of the state, in 
the nighttime, without his consent, and moving or 
assisting in moving therefrom a tenant and his 
property or effects. * * * The offense was a vio­
lation of the Act No. 38 of 1926, p. 52; which makes 
it unlawful to go on the premises or plantation of 
a citizen of this state, in the nighttime or between 
sunset and sunrise, without his consent, and to move 
or assist in moving therefrom any laborer or ten­
ant. The act declares that it does not apply to what 
is done in the discharge of a civil or militaiy 
order.” * * * * * *

“The defendant pleaded that the statute was 
violative of the guaranty in the second section of 
Article 4 of the Constitution of the United States 
that the citizens of each state shall be entitled to all 
privileges and immunities of citizens in the sevei al 
states, and was violative also of the provision in 
the Fourteenth Amendment that no state shall make 
or enforce any law which shall abridge the privi­
leges or immunities of citizens of the Uniteci States, 
and violative of the due process clause and the equal
protection clause of the f ourteenth Amendment. 

« . » * * * *

“On the occasion referred to in the bill of 
information he, (defendant) went upon the plan­
tation of one T. D. Connell, a citizen of Louisiana, 
in the nighttime and without Connell s consent and 
moved from the plantation to the state of Aikansas 
a tenant of Connell and the tenant’s property or



83

effects. The defendant was employed by Connell’s 
tenant to do the hauling, and was not discharging 
any civil or military order. Some of the planta­
tions in that vicinity were owned by citizens of Lou­
isiana and some by persons not citizens of Louisi­
ana. For several months previous to the occasion 
complained of the defendant was engaged in haul­
ing persons and their property and effects, in the 
ordinary course of his business, and regardless of 
whether any of the persons moved were laborers 
or tenants on premises owned by a citizen of Lou­
isiana or by a citizen of another state.

“The statute is not an unreasonable exercise 
of the police power of the state. It merely forbids 
a person having no right to be on the premises of 
another to go there in the nighttime and without
the proprietor’s consent ------ and therefore as a
trespasser ------ and to move or assist in moving
from the premises a laborer or tenant or his prop­
erty or effects. The purpose of the statute, mani­
festly, is to preserve the right of every landlord or 
employer of farm labor to be informed of the re­
moval from his premises of any personal property 
or effects. Without a statute on the subject it 
would be unconventional in the rural districts, to 
say the least, for an outsider to take the liberty of 
going upon the premises of another in the nighttime 
to cart away personal property or effects, without 
the landowner’s consent. The statute does not dis­
criminate with regard to those who may or may not 
commit the act. It forbids all alike. The discrimi­
nation is in what is forbidden. It is not foi bidden



84

-----  by this particular statute ----- - to trespass
upon the land of one who is not a citizen of the 
state, by going upon his premises in the nighttime 
without his consent. Perhaps the Legislature used 
the word “citizen” not in its technical or political 
sense but as meaning a resident of the state, and 
perhaps the Legislature thought the law would be 
too harsh if it forbade those engaged in the trans­
fer business to go upon premises belonging to a 
non-resident----- - even in the nighttime----- with­
out first obtaining his consent. The discrimina­
tion, therefore, is not arbitrary or beyond all pos­
sible reason. The defendant has no cause to com­
plain that the Legislature did not go further, in 
enacting the law, and forbid a similar act of tres­
pass upon the premises of a citizen of another 
state. If he had the right to complain of such 
discrimination, we would hold that the statute does 
not deprive the citizens of other states, owning land 
in this state, of any privilege or immunity guar­
anteed to the landowners who are citizens of this 
state. The privileges and immunities referred to 
in the second section of Article 4 of the Constitu­
tion of the United States are only those funda­
mental rights which all individuals enjoy alike, ex­
cept insofar as they are all restrained alike. White 
v. Walker, 136 La. 464, 67 So. 332; Central Loan 
& Trust Co. v. Campbell Commission Co., 173 U. S. 
84, 19 S. Ct. 346, 43 L. Ed. 623. If the trespass 
committed by the defendant in this case had been 
committed on land belonging to a citizen of an­
other state, there would have been no violation of



85

the Act No. 38 of 1926; and in that event the citi­
zen of the other state would have had no means of 
compelling the Legislature of this state to make the 
law applicable to his case, or right to demand that 
the courts should declare the law null because not 
applicable to his case. All of which merely dem­
onstrates that the statute in question is not viola­
tive of the second section of Article 4 of the Con­
stitution of the United States or of the due process 
clause or equal protection clause of the 14th. 
Amendment.”

“These guarantees of freedom of religious 
worship, and freedom of speech and of the press, 
do not sanction trespass in the name of freedom.
We must remember that personal liberty ends when 
the rights of others begin. The constitutional in­
hibition against the making of a law respecting an 
establishment of religion, or prohibiting the free 
exercise thereof, or abridging the freedom of speech 
or of the press does not conflict with the law which 
forbids a person to trespass upon the property of 
another.”

State v. Martin, et. als. 5 So. 2d. 377, 199
La. 39.

In support of their plea of unconstitutionality, de­
fendants cite the cases of Shelley v. Kraemer, 334 U. S. 1, 
20, 68 S. Ct. 836, 92 L. Ed. 1161, Marsh v. Alabama, 
326 U. S. 501, Valle v. Stengel, 176 F. 2d. 697 (3rd. Cir. 
1949), and other citations contained in their brief.

The State’s freedom of action in protecting the 
peaceful possession of private property outweighs a ties-



86

passer’s right not to have the state enforce private dis-s 
criminations. Only when this means of protecting prop-; 
erty interests impairs a preferred fundamental right such 
as freedom of speech, press or religion in a context ofi 
great public interest have the courts been inclined to ques-t 
tion the constitutionality of a statute. The present state;' 
of the law not only recognizes a man’s home to be his' 
castle, but allows the state to police his gate and coercively; 
enforce his racial discriminations.

Assuming that arresting the defendants constituted:, 
state action (which is denied), the privileges and immu­
nities clause of the 14th. Amendment was not violated:, 
because unlike the right to own property (Shelley v. Krae-- 
mer) which is defined by statute, there is no specific: 
right or privilege to enter the premises of another and 1 
remain there after being asked to depart. In fact the: 
civil and criminal laws of trespass and real property,, 
put the privilege of peaceful possession in the owner. An i 
extension of the doctrine of Shelley v. Kraemer one step » 
further would mean a holding that the enforcement of 1 
a criminal statute, in itself non-discriminatory, could be­
come discriminatory when the complainant prosecutes for 
discriminatory reasons and thus finding state action that 
discriminates because of race, creed or color.

For the reasons assigned in the authorities sup­
porting the constitutionality of statutes similar to L. S. A.- 
R. S. 14:59(6), the Court holds defendants citations to be 
inapplicable to the factual and legal situation present in 
the case at bar.

Defendants’ contentions are without merit.



87

The Court holds L. S. A.-R. S. 14:59(6) constitu­
tional, and the bill of information filed thereunder good 
and sufficient in law.

The motion to quash is overruled and denied.

New Orleans, Louisiana, 28th day of Novem­
ber, 1960.

~ /Sgd/ ,/.Bernard CockeT Judge. 
J U D G E

FILED: Nov. 28/60— (Sgdl E. A. Mouras, Min. Clk.



86

passer’s right not to have the state enforce private dis 
criminations. Only when this means of protecting proj 
erty interests impairs a preferred fundamental right sue 
as freedom of speech, press or religion in a context o 
great public interest have the courts been inclined to ques' 
tion the constitutionality of a statute. The present s ta t ' 
of the law not only recognizes a man’s home to be hi 
castle, but allows the state to police his gate and coercively 
enforce his racial discriminations.

Assuming that arresting the defendants constitutes:, 
state action (which is denied), the privileges and immn 
nities clause of the 14th. Amendment was not violatec, 
because unlike the right to own property (Shelley v. Krae- 
mer) which is defined by statute, there is no specific 
right or privilege to enter the premises of another andi 
remain there after being asked to depart. In fact thel 
civil and criminal laws of trespass and real property,] 
put the privilege of peaceful possession in the owner. An 
extension of the doctrine of Shelley v. Kraemer one step 
further would mean a holding that the enforcement of' 
a criminal statute, in itself non-discriminatory, could be­
come discriminatory when the complainant prosecutes for 
discriminatory reasons and thus finding state action that 
discriminates because of race, creed or color.

For the reasons assigned in the authorities sup­
porting the constitutionality of statutes similar to L. S. A.- 
R. S. 14:59(6), the Court holds defendants citations to be 
inapplicable to the factual and legal situation present in 
the case at bar.

Defendants’ contentions are without merit.



87

The Court holds L. S. A.-R. S. 14:59(6) constitu­
tional, and the bill of information filed thereunder good 
and sufficient in law.

The motion to quash is overruled and denied.

New Orleans, .Louisiana, 28th day of Novem­
ber, 1960.

~7Sgd/ J. Bernard Cocke, Judge. 
J U D G E

FILED: Nov. 28/60— (Sgd) E. A. Mouras, Min. Clk.



88

STATE OF LOUISIANA 
VERSUS

NO. 168-520— 
SECTION “E” 

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT 

ET. ALS. PARISH OF ORLEAN

PER CURIAM TO BILL OF EXCEPTION NO. 1
This bill was reserved to the denial of the motio 

to quash the bill of information.

The motion addresses itself to the constitutionalit; 
of L. S. A.-R. S. 14:59(6), the Criminal Mischief statut 
under which defendants are charged, as well as certaii 
supposed infirmities present in the bill of information.

In passing upon defendants’ contentions, the Couri 
filed written reasons upholding the constitutionality ol 
L. S. A.-R. S. 14:59(6), and refusing to quash the bill 
of information.

The Court makes part of this per curiam the writ­
ten reasons for judgment.

There is no merit to the bill.

New Orleans, Louisiana, 10th day of January, 1961.

(Sgd) J. Bernard Cocke, Judge.
J U D G E

FILED: Jan. 10/61—(Sgd) E. A. Mouras, Min. Clk.



89

STATE OF LOUISIANA 

VERSUS

NO. 168-520— 
SECTION “E” 

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT

PER CURIAM TO BILL OF EXCEPTION NO. 2
As will be seen from a reading of the statute 

under which defendants were prosecuted (L. S. A.-R. S. 
14:59(6)), the inquiry sought to be established by defend­
ants was irrelevant and immaterial to any of the issues 
presented by the bill of information and the chai ge con­
tained therein.

L. S. A.-R. S. 15:435 provides;
“The evidence must be relevant to the ma­

terial issues.”

L. S. A.-R. S. 15:441 reads in part as follows:
“Relevant evidence is that tending to show 

the commission of the offense and the intent, or 
tending to negative the commission of the offense 
and the intent.”

L. S. A.-R. S. 15:442 states, in part:
“The relevancy of evidence must be deter­

mined by the purpose for which it is offered.
“A trial judge must be accorded a wide dis­

cretion whether particular evidence sought to be 
introduced in criminal prosecution is relevant to
case. L. S. A.-R. S. 15:441.’

State v. Murphy, 234 La. 909, 102 So. 2d.) 61.

ET. ALS. PARISH OF ORLEANS



90

“Exclusion of testimony on grounds of ir­
relevancy rests largely on discretion of trial judge.”

State v. Martinez, 220 La. 899, 57 So. 2d. 888.
“In order to be admissible, evidence must be 

both (1) relevant or material, and (2) competent.
Evidence is competent when it comes from 

such a source and in such form that it is held 
proper to admit it.

Evidence is relevant when it is persuasive or 
indicative that a fact in controversy did or did not 
exist because the conclusion in question may be 
logically inferred from the evidence. The criterion 
of relevancy is whether or not the evidence adduced 
tends to cast any light upon the subject of the in­
quiry.” etc.

Wharton’s Crim. Ev. (12th. Ed.) Vol. 1, p. 283, 
Sec. 148.

The bill is without merit.

New Orleans, Louisiana, 10th day of January, 1961.

(Sgd) J. Bernard Cocke, Judge.
~ T T T d g e ~

FILED: Jan. 10/61—(Sgd) E. A. Mouras, Min. Clk.

t



91

STATE OF LOUISIANA 

VERSUS

NO. 168-520— 
SECTION “E” 

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT

PER CURIAM TO BILL OF EXCEPTION NO. 3
The bill was reserved to the denial of defendants’ 

motion to a new trial.

Insofar as the written reasons for denying the 
motion to quash are applicable to defendants’ motion for 
a new trial the Court submits same as its reasons for deny­
ing the said motion.

A reading of the statute under which defendants 
were prosecuted (L. S. A.-R. S. 14:59(6)), is sufficient 
refutation to the other allegations of the motion for a new 
trial, as the matters contended for were irrelevant and 
immaterial to any of the issues present in the proceedings.

As no request was made of the Court to charge 
itself on the legal questions raised by defendants in the 
motion for a new trial, defendants cannot be heaid to com­
plain.

The Court was convinced beyond all reasonable 
doubt, that each and every element necessary for convic­
tion was abundantly proved.

The appellate court is without jurisdiction to pass 
upon the sufficiency of proof.

ET. ALS. PARISH OF ORLEANS



92

New Orleans, Louisiana, 10th day of January, 1961

(Sgd) J, Bernard Cocke, Judge. 
J U D G E

FILED: Jan. 10/61— (Sgd) E. A. Mouras, Min. Clk.



93

STATE OF LOUISIANA

VERSUS

NO. 168-520— 
SECTION “E” 

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT

PER CURIAM TO BILL OF EXCEPTION NO. 4
This bill was reserved to the denial of defendants’ 

motion in arrest of judgment.

Insofar as the written reasons for denying the mo­
tion to quash are applicable to defendants’ motion in arrest, 
the court submits same as its reasons for denying the 
motion in arrest of judgment.

The remaining contentions of defendants have no 
place in a motion in arrest of judgment, and were mat­
ters of defense.

There is no merit to defendants’ bill.

New Orleans, Louisiana, 10th day of January, 1961.

ET. ALS. PARISH OF ORLEANS

(Sgd) J. Bernard Cocke, Judge.
J U D G E

FILED: Jan. 10/61—(Sgd) E. A. Mouras, Min, Clk.



IN THE

SUPREME COURT OF THE UNITEU STATES

OCTOBER TERM, 1961

No.

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T. WASHINGTON,
JR., and GWENDOLYN GREENE, Petitioners,

v.
STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

To the Honorable Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the 
United States:
Petitioners pray that a writ of certiorari issue to review 

the judgment of the Court of Appeals of Maryland entered 
in this case on June 8, 1961.

Opinions Below
The opinions of the Circuit Court for Montgomery 

County and of the Court of Appeals of Maryland have not 
yet been reported. They are printed in Appendix A, infra, 
pp. 19 to 29.

( 1 )



2

Jurisdiction

The ju d g m e n t of the  C o u rt o f  A p p ea ls  o f M ary lan d  w as 
entered on J u n e  8, 1961. T h e  ju risd ic tio n  of th is  C o u rt is 
invoked u n d e r  28 U .S .C . § 1 2 5 7 (3 ), p e titio n e rs  h av in g  a s ­
serted below  a n d  u rg in g  h e re  d en ia l o f r ig h ts  secu red  by 
the F o u r te e n th  A m endm en t to  the  C o n stitu tio n .

Question Presented

Whether, consistent with the F o u r te e n th  A m endm ent, 
the State of M ary lan d  m ay  u tilize  p o w ers  o f police en­
forcement, arrest, accusa tion , p ro secu tio n  a n d  conviction 
to administer a n d  enfo rce  the  rac ia l d isc rim in a tio n  o f a 
business advertising and  c a te rin g  to  the  g en e ra l public.

Statutes Involved

This case involves Section  1 of the F o u r te e n th  A m end­
ment to the Constitution of the U n ited  S ta te s , and  A rtic le  
27, §577 of the M ary lan d  Code (1957) w hich p ro v id e s :

“ A ny p e rso n  . . . who sha ll e n te r  upon  o r cross over 
the land, p rem ises  o r p r iv a te  p ro p e r ty  o f an y  perso n  
. . . after h av in g  been duly  notified by the ow ner or 
his agent n o t to  do so sha ll be deem ed g u ilty  of a m is­
demeanor . . . p ro v id ed  [how ever] th a t  n o th in g  in th is  
section shall be co n stru ed  to include w ith in  its  p ro v i­
sions the e n try  o r c ro ss in g  over any  lan d  w hen such 
entry or c ro ss in g  is done u n d e r  a bona fide claim  of 
right or o w nersh ip  of sa id  land , it being  the in ten tio n  
of this section  only to  p ro h ib it an y  w anton  tre s p a ss  
upon the p riv a te  lan d  of o th e rs .”

Statement

The instant case p re se n ts  unique and  im p o rta n t a sp ec ts  
of the legal issues w hich have a r ise n  fro m  the  a tte m p t of 
Negro citizens to  o b ta in  equal tre a tm e n t w ith  th a t  a ffo rd ed



3

to  w h ites in  such pub lic  accom m odations as food, t r a n s p o r ­
ta tio n , e n te r ta in m e n t an d  rec rea tio n . T he sequence of 
even ts  which gave rise  to  p e t i t io n e rs ’ ac tions cu lm in a tin g  
in  th e ir  conviction by the S ta te  o f M ary lan d , has  its  o rig in  
in  G reensboro , N o rth  C aro lin a , on F e b ru a ry  1, 1960. On 
th a t  day  fo u r  N egro  s tu d en ts  a t  the N o rth  C aro lin a  A. & T. 
College, who had  g row n in creas in g ly  im p a tie n t w ith  p re ­
v a ilin g  p rac tic e s  u n d e r w hich N egro  s tu d e n ts  could no t 
ob ta in  food and  re fre sh m e n t se rv ed  a t  lo ca l s to res , de­
te rm in ed  to seek service a t  a local lunch co u n te r in G reen s­
boro. T h is m odest in ciden t m ark ed  the beg in n in g  of w ide­
sp re a d  effo rts , includ ing  those of p re se n t p e titio n e rs , to 
open service to  N egroes in places of public accom m odation. 
See P o llitt, Dime Store Demonstrations, 1960 Duke L. J . 315.

Glen E cho A m usem ent P a rk , the m a jo r  am usem en t fac il­
ity  se rv in g  the D is tr ic t of C olum bia and  its  su b u rb s, is 
located  in M ontgom ery  C ounty , M ary lan d  an d  h as  t r a d i ­
tio n a lly  been p a tro n ized  by w hite  cu stom ers (T r. 93-95).1 
On Ju n e  30, 1960, a nu m b er of p e rso n s  g a th e red  ou tsid e  the 
m ain  en tran ce  of the  P a rk  to u rg e  th a t  N egro  p a tro n s  be 
p e rm itted  to use the P a r k ’s fac ilitie s  an d  to seek service 
fo r  N egro  p a tro n s  by p a tie n t, p e rs is te n t and  peaceable 
e ffo rts  to ob ta in  such serv ice  (T r . 110-128). No tick e ts  of 
adm ission  w ere req u ired  fo r e n try  in to  the  P a r k  (R .20) 
an d  p e titio n e rs , young  N egro  s tu d en ts  p a r tic ip a tin g  in the 
Glen Echo p ro te s t, en te red  the P a rk  th ro u g h  the open m ain  
g a te s  a t about 8:15 p.m. (R . 15). H av in g  been a d m itted  
to  the  P a rk  w ithou t difficulty, p e titio n e rs  so u g h t to  en joy  
a  m erry -go -round  rid e  and  took sea ts  on the ca ro u se l (R . 
16) fo r  w hich th ey  h ad  in th e ir  possession  valid  tick e ts  of 
adm ission  (R . 20, T r . 111).

1 “ T r.” references in this B rief indicate the pagination of the official 
tran scrip t o f tria l filed as a p a r t of the record in this Court, “R .” re fe r­
ences indicate pages of the p rin ted  record below, nine copies of which 
have been filed with the Clerk of this Court.



4

P e tit io n e rs  w ere  ho p efu l th a t  the  P a r k  w ould  n o t re fu se  
th em  the  serv ice  w hich i t  a d v e rtis e d  an d  re n d e re d  to  the 
g e n e ra l pub lic  (see T r . 114-116, 125-126). T h e ir  a tte m p ts  
a t  serv ice w ere not u n reaso n ab le , co n s id e rin g  th a t  no tick e ts  
w ere  req u ired  fo r ad m ission  to the  P a r k  its e lf  (R . 20), 
th a t  none o f the signs a ro u n d  the  P a rk  in d ica ted  a n y  d is ­
c rim in a tio n  ag a in s t N egro  p a tro n s  (T r. I l l ) ,  an d  th a t  in all 
its p ress , rad io , and  te lev ision  a d v e rtis in g  in  th e  D is tr ic t 
of C olum bia a re a  the m an ag em en t in v ited  “ the  pub lic  g en ­
e ra l ly ”  w ith o u t d istin c tio n  of race  o r co lo r (R . 25-26).

I t  soon developed, how ever, th a t  p e titio n e rs  w ere  n o t g o ­
in g  to  be able to rid e  the carouse l on w hich th ey  h a d  taken  
th e ir  p laces. F ra n c is  J .  Collins, em ployed  by  th e  G len 
E cho  m anagem en t as a “ specia l p o licem an ”  u n d e r  a r r a n g e ­
m en t w ith  the N a tio n a l D etective  A gency  (R . 14, 18) and  
d ep u tized  as a S pecia l D epu ty  S h e riff  of M ontgom ery  
C ounty  on the req u es t of the  P a rk  m an ag em en t (R . 18), 
p ro m p tly  ap p ro ach ed  p e titio n e rs  (R . 16).2 H e w as d ressed  
in  the un ifo rm  of the N a tio n a l D etective  A gency  and  w as 
w ea rin g  the  Special D epu ty  S h e r if f ’s b adge  re p re se n tin g  
h is  s ta te  a u th o r ity  (R . 17-18). On the o rd e rs  o f an d  on 
b eh a lf  o f the  m anagem en t (T r. 104), D ep u ty  S h e riff  C ollins 
d irec ted  p e titio n e rs  to  leave the P a rk  w ith in  five m in u tes  
because it w as “ the policy o f the p a rk  n o t to  h av e  co lored 
people on the rides, o r  in the  p a r k ”  (R . 16). P e tit io n e rs  
declined to obey C o llin s’ d irec tio n , rem a in in g  on the  c a r ro u ­
sel fo r  w hich they  ten d ered  tick e ts  of ad m issio n  (R . 17, 
20).3 H av in g  unsuccessfu lly  d irec ted  p e ti tio n e rs  to leave

2 Collins was head of the private police force a t the P ark  among whom 
a t least two of the employees were deputized as Special D eputy Sheriffs 
(T r. 105), pu rsuan t to M ontgomery County Code (1055) Sec. 2-91.

8 Friends of the petitioners had purchased these tickets and had given 
them to petitioners (Tr. I l l ,  118-119). There is no suggestion th a t the 
management placed any restriction upon the tran sfe r of tickets to friends 
and re latives; indeed, it was conceded by an agent o f the P a rk  th a t tran s­
fers frequently  occurred in his presence (R . 21). No offer to refund  the 
purchase price was made to petitioners (R. 20).



5

the. p rem ises , tin d er color of h is a u th o r ity  as a Special 
D ep u ty  S h e riff  o f M ontgom ery  C ounty  C ollins now  a r ­
re s te d  p e titio n e rs  (R . 17, 18) fo r  w an to n ly  tre s p a ss in g  in  
v io la tio n  o f a  M ary lan d  s ta tu te  (C ode, A rt. 27, Sec. 577) 
m ak in g  i t  illeg a l to “ e n te r  o r c ross o v e r”  the  p ro p e r ty  
o f an o th e r  “ a f te r  h av in g  been du ly  notified by the  ow ner 
o r  h is ag en t no t to  do so .”  T h e re  w as no sug g estio n  th a t  
p e titio n e rs  “ w ere d iso rd e rly  in  an y  m a n n e r”  (see p. 23, 
infra). A t the su b sequen t tr ia l,  D ep u ty  S heriffijC o llin s 
affirm ed th a t he a rre s te d  p e titio n e rs  “ because they were 
negroes,’’ and  exp la ined  th a t  “ I arrested them on orders 
of Mr. Woronoff [Park Manager], due to the fact that 
the policy of the park was that they catered just to ivhite 
people . . .” (R . 19).

A t the M ontgom ery  C ounty  Police p rec in ct house, w here  
p e titio n e rs  w ere taken  a f te r  th e ir  a r r e s t  (R . 17), C ollins 
p re fe r re d  sw orn charg es fo r tre sp a ss  a g a in s t the p e ti­
t io n e rs  (R . 11, T r. 41), lead ing  to th e ir  t r ia l  u n d e r the 
M ary lan d  w an ton  tre sp a ss  s ta tu te  in the  C ircu it C o u rt 
fo r  M ontgom ery  C ounty  on S ep t. 12, 1960. A t the  tr ia l,  
P a r k  co-ow ner A bram  B ak er cand id ly  d escribed  h is  use 
o f D ep u ty  S h e riff  C ollins to enforce  rac ia l d is c r im in a tio n :

“ Q. W ould  you tell the C o u rt w hat you to ld  L ieu ten an t 
Collins re la tin g  to the rac ia l policies of the  Glen 
E cho  P ark !- A. W e d id n ’t allow  negroes and  in 
h is d isc re tion , if  an y th in g  h appened , in  any  w ay, 
he w as supposed  to a r r e s t  them , if  th ey  w ent on 
o u r p ro p e rty .

Q. D id you specify  to him  w hat he w as supposed  
to  a r r e s t  them  fo r?  A. F o r  tre sp a ss in g .

Q. You used  th a t  w ord  to him ? A. Y es ; th a t  is 
r ig h t.

Q. A n d  you used  the w ord  ‘d isc re tio n ’— w h at d id  
you m ean by th a t?  A . T o  give them  a  chance 
to  w alk  o f f ; if  they  w an ted  to.



6

Q. D id  you in s tru c t L ie u te n a n t C ollins to  a r r e s t  f 
n eg ro es who cam e on th e  p ro p e r ty , if  th ey  d 
n o t leav e !  A . Yes.

Q. T h a t w as y o u r in s tru c tio n s !  A. Yes.
Q. A nd  d id  you in s tru c t h im  to  a r r e s t  them  becau 

th ey  w ere  n e g ro e s!  A. Y e s ”  (R . 24-25).

P e t i t io n e r s ’ co n s titu tio n a l ob jec tio n s to  the  S t a te ’s pa 
tic ip a tio n  in  an d  su p p o rt o f rac ia l d isc rim in a tio n , we 
re p e a te d ly  re je c te d  hy  the  t r ia l  co u rt (R . 13-14, 17, 27-.' 

32, 33-36) .  P e tit io n e rs  w ere  convicted  an d  fined fo r  w an t 
tre s p a s s  u n d e r  the  M ary lan d  s ta tu te  (R . 1-5, p. 19, infrc 
T h e  M ary lan d  C o u rt of A p p ea ls  affirm ed the  convictio i 
h o ld in g  the  p e t i t io n e rs ’ re fu sa l to  leave the  p rem ise s  up 
in s tru c tio n s  of m anagem en t ag en t C ollins, to  co n s titi 
u n law fu lly  “ e n te r in g  o r c ro ssin g  o v e r”  the o w n e rs ’ pro 
e rty , w ith in  the m ean ing  of A rt. 27, Sec. 577. T he Cor 
d ism issed  the  ob jections u n d e r  the F o u r te e n th  Am endm e 
an d  u n d e r  42 U .S .C . 1981 an d  1982 to  S ta te  su p p o rt 
rac ia l d isc rim in a tio n  by a  pub lic  com m ercial e n te rp r i  
find ing  the  case to be “ one s tep  rem oved  fro m  S ta te  6 
fo rcem en t of a policy of s e g re g a tio n ”  {infra, pp . 27-28).

T h e  question  th u s p re se n ted  is w h e th e r the  ru lin g  beh 
can  s tan d , co n sis ten t w ith  the  equal p ro tec tio n  and  d 
p ro cess  g u a ra n tee s  of the F o u r te e n th  A m endm ent, in  c 
cu m stances w here the S ta te ’s d irec tio n  to  leave, the  a r r e  
th e  accusa tion , the  p ro secu tio n  and  th e  c rim in a l convicti 
su p p o rte d  and en fo rced  d isc rim in a tio n  a g a in s t  peaceal 
N eg ro  p a tro n s  b y  a com m ercial e n te rp r is e  a d v e rtis in g  a 
c a te rin g  to  the  g en e ra l public.



7

Reasons for Granting the W rit

This Case Presents for Review a Compelling Record of 
State Participation In and Support to “ Private” Racial 
Discrimination and Provides Important Illumination on a 
Constitutional Issue Presently Pending before the Court

A t its  p re s e n t  te rm  th is  C o u rt w ill rev iew  the  use of a 
L o u is ian a  b reach  o f the  peace s ta tu te  in  a  m an n er which 
p ro v id ed  th e  su p p o rt of the  S ta te  to  the rac ia lly  d iscrim i­
n a to ry  p rac tic e s  of b usinesses c a te r in g  to th e  public. See 
N os. 26, 27 an d  28, Garner, Briscoe an d  Eoston v. Louisiana. 
T h ere  a re  also  p en d in g  ap p lica tio n s  fo r  rev iew  from  V ir­
g in ia , N o rth  C aro lin a  an d  M ary lan d  invo lv ing  convictions 
fo r  “ t r e s p a s s ”  a n d  “ d iso rd e rly  co n d u c t”  o f N egroes 
seek ing  food, rec rea tio n  an d  s im ila r  public  serv ices a t 
bu sin ess  e s tab lish m en ts  d isc rim in a tin g  a g a in s t N egro  cus­
tom ers. See No. 248, Randolph v. Virginia; No. 71, Drews 
v. Maryland; No. 85, Avent v. North Carolina. T h is  C o u r t’s 
rev iew  is especially  w a rra n te d  in  the in s ta n t case, fo r  it 
p re se n ts  a  un ique deg ree  o f S ta te  involvem ent in  a n d  su p ­
p o r t  to  rac ia l d isc rim in a tio n  a g a in s t o rd e rly  N egro  p a tro n s  
by the  la rg e s t  am usem en t fac ility  c a te rin g  to  the  public 
in  the D is tr ic t of C olum bia a rea . In  ad d ition , co n cu rren t 
rev iew  of th is  p ro ceed in g  w ill p ro v id e  im p o r ta n t illu m in a­
tio n  upon fu n d am en ta l issues p resen ted  in the L o u is ian a  
cases and  the  pend ing  ap p lica tio n s  fo r  rev iew  fro m  V ir ­
g in ia , N o rth  C aro lin a  and  M ary land .

T he p rem ise  o f the challenge a g a in s t the c rim in a l p ro ­
ceedings involved in  th e  p en d in g  cases is th a t  such m an i­
fe s ta tio n s  o f s ta te  pow er in  su p p o rt of the rac ia lly  d is ­
c rim in a to ry  p rac tices  of e n te rp rise s  se rv in g  th e  public, 
co n s titu te  “ s ta te  a c tio n ”  fo rb id d en  by  the  F o u r te e n th  
A m endm ent. W h a t the  s ta te s  have done in  a ll these  
cases fa lls  well w ith in  the  a re a  o f im perm issib le  s ta te  
ac tion  se t fo r th  in  th is  C o u r t’s ru lin g s  in  Shelley v.



8

Kraemer, 334 U .S . 1, Barrows v. Jackson, 346 U .S . 249, 
an d  Marsh v. Alabama, 326 U .S . 501. In d eed , in the  in s ta n t 
case  th e re  is  an  even  c loser in te rp la y  betw een  p r iv a te  
d isc r im in a tio n  an d  its  en fo rcem en t by v a rio u s  pow ers of 
th e  S ta te  th a n  ex isted  in  Shelley, Barrows an d  Marsh. 
F o r  h ere , n o t only  the  p ro secu to ry  an d  ju d ic ia l pow er of 
th e  S ta te  h ave  been em ployed  to enfo rce  d isc rim in a tio n , 
but th e  S ta te ’s police a u th o r ity  w as han d ed  to the  Glen 
E ch o  m an ag em en t on a  fo rm alized  b as is  fo r  the con­
tin u in g  a d m in is tra tio n  and  en fo rcem en t of i ts  d isc rim i­
n a to ry  policy. D ep u ty  S h eriff  C ollins, n o t upon  the  re ­
q u es t b u t upon  the  o rd e rs  o f the  p r iv a te  m anagem en t 
w hich  em ployed  him , and  w ea rin g  the badge of h is public 
office, in fo rm ed  an d  in s tru c te d  p e titio n e rs  th a t  because 
th ey  w ere  N eg ro es th ey  w ould have to  leave the p rem ises. 
I t  w as C ollins an d  his a sso c ia tes  who w ere  th u s  ad m in is­
te r in g  the  P a r k ’s policy o f rac ia l d isc rim in a tio n  on a  day  
to  d ay  basis  an d  C o llin s’ d irec tio n  to  the p e titio n e rs  to 
leave the  p rem ises  consum m ated  the  u n co n stitu tio n a l in ­
vo lvem ent o f the  S ta te  in the  “ p r iv a te ”  p rac tice  o f d is ­
crim ination .*  T hen , to  ad d  in ju ry  to in su lt, s till  follow ing 
th e  o rd e rs  of h is em ployers an d  in h is cap ac ity  as an 
officer of the  S ta te , Collins a r re s te d  p e titio n e rs  and  filed 
a  w a r ra n t  u n d e r  oa th  ag a in s t them , b r in g in g  in to  p lay  the 
p ro se c u to ria l m ach in ery  of the S ta te . T he significance 
of th e  case a t  b a r  is th u s found  in  the  fac t, d irec tly  con­
t r a r y  to  th e  ru lin g  below th a t  S ta te  ac tion  h e re  w as 
“ one s tep  rem oved  from  S ta te  en fo rcem en t of a policy 
of s e g re g a tio n ,”  th a t  th e re  w as ab so lu te ly  no severance 
a t  a n y  tim e betw een public  an d  p r iv a te  a u th o r ity  a t Glen 
E ch o  P a rk . What this case adds to tho.se presently before

* Indeed, D eputy Sheriff Collins “made the crime” of which petitioners 
were convicted. Collins’ direction to leave was a  necessary prerequisite 
o f the trespass charge, fo r petitioners could not have been so charged 
(and  were adm ittedly law fully on the prem ises) until Collins, a state 
officer, directed them to leave.



9

the Court is that the Park’s policy of racial discrimination 
was at all times being administered and enforced by the 
State through Deputy Sheriff Collins and his colleagues. 
H ere  the  S ta te  of M ary lan d  w as no t m ere ly  en forcing  
th e  C o m p an y ’s rac ia l d isc rim in a tio n  th ro u g h  p rosecu tion  
in  th e  co u rts , b u t w as its e lf  a d m in is te rin g  th a t  d isc rim in a ­
tio n  on the  p rem ises  o f the  la rg e s t  pub lic  am usem en t fa ­
c ility  in  the D is tr ic t of C olum bia a re a . Cf. Pennsylvania 
v. Board of Trusts, 353 U .S . 230.

A s th is  C o u rt recen tly  p h rase d  the  p re se n tly  app licab le  
p rin c ip le  in  Burton v. Wilmington Parking Authority, 
365 U .S . 715, 722, the  equal p ro tec tio n  c lause is invoked 
w hen “ to some significant extent the statein any of its mani­
festations has been found to become involved’’ in p r iv a te  
conduct a b rid g in g  ind iv id u al r ig h ts . T he ap p licab ility  of 
th is  ru le  w hen the s ta te  lends its  su p p o rt to d isc rim in a tio n , 
th ro u g h  its  police pow ers of d irec tio n  to leave p rem ises, 
a r re s t,  accusation , p ro secu tio n  an d  conviction, c e rta in ly  
p re se n ts  an  im p o rta n t q uestion  fo r rev iew ; th is  C o u rt 
ch a rac te rized  the analogous issue p resen ted  in Shelley v. 
Kraemer as involv ing  “ basic  co n stitu tio n a l issues o f ob­
vious im p o rta n c e ’’ (334 U. S. a t p. 4 ).

S ignifican tly , the U n ited  S ta te s  as am icus cu riae  in  
Boynton v. Virginia (No. 7, O ctober T erm , 1960) recen tly  
u rg ed  rev e rsa l of a V irg in ia  tre sp a ss  conviction upon  the 
g ro u n d  be ing  u rg ed  in the p en d in g  case, th a t  the F o u r ­
tee n th  A m endm ent p rec ludes a  s ta t e ’s p ro secu to ria l en ­
fo rcem en t of rac ia l d isc rim in a tio n  by a bu sin ess  c a te rin g  
to  the  public.5 In  the  G o v ern m en t’s B r ie f  befo re  th is

5 This Court decided the B o y n to n  case (364 U.S. 454) on the independ­
ent in terstate commerce point also urged by the Government. B ut, fo r 
p resent purposes, it should be emphasized tha t in the Government’s view, 
invocation of V irgin ia’s criminal trespass authority  to support the racially 
discrim inatory policy of the private res tau ran t there involved, constituted 
a complete and independent ground fo r reversal under the Fourteen th  
Amendment.



10\ -

Court (at p. 17), the Solicitor General em p hasized  th a t  
“ The application o f a general, n o n d isc rim in a to ry , an d  o th ­
erwise v a lid  law  to e ffec tua te  a  rac ia lly  d isc r im in a to ry  
policy of a  p r iv a te  agency , an d  th e  en fo rcem en t of such 
a  discriminatory policy by  s ta te  g o v ern m en ta l o rg an s , has 
been held  rep ea ted ly  to  be a d en ia l by  s ta te  ac tio n  of 
rights secu red  by the  F o u r te e n th  A m en d m en t.”  P e r tin e n t  
judicial ru lin g s , the  B r ie f  fo r  the U n ited  S ta te s  su g gested , 
demonstrate that “ where the s ta te  en fo rces  o r su p p o rts  
racial d isc rim in a tio n  in  a  p lace open  fo r  th e  use  o f the 
general public  . . .  i t  in fr in g e s  F o u r te e n th  A m endm ent 
rights n o tw ith s tan d in g  th e  p r iv a te  o rig in  o f th e  d isc rim ­
in a to ry  co n d u c t”  ( a t  p. 20). T he S o lic ito r  G eneral con­
cluded th a t  the  conviction  fo r  “ t r e s p a s s ”  of a  N egro  seek­
ing serv ice  a t  a R ichm ond, V irg in ia , r e s ta u ra n t  co n sti­
tuted un law fu l s ta te  su p p o rt to p r iv a te  d isc rim in a tio n , 
and th a t

“ W hen  a  s ta te  ab e ts  o r  san ctio n s d isc rim in a tio n  
a g a in s t  a  co lored c itizen  who seeks to  p a tro n ize  a 
bu sin ess  es tab lish m en t open to  the  g en e ra l public, the 
co lo red  c itizen  is th e reb y  den ied  th e  r ig h t ‘to m ake 
an d  enfo rce  c o n tra c ts ’ an d  ‘ to p u rch ase  p e rso n a l p ro p ­
e r t y ’ g u a ra n tee d  by 42 U .S .C . 1981 an d  1982 a g a in s t 
d e p riv a tio n  on rac ia l g ro u n d s ”  ( a t  p. 28).

C learly , th e  p en d in g  s ta te  p ro secu tio n s fo r  “ t r e s p a s s ” , 
“ b reach  o f p e a ce ”  and  “ d iso rd e rly  co n d u c t” , en fo rc ing  
th e  rac ia l p rac tic e s  o f businesses c a te r in g  to the  gen era l 
public , offend the  m an d a te  o f the  F o u r te e n th  A m endm ent 
u n d e r  th e  a u th o r ita tiv e  ru lin g s  of th is  C o u rt an d  p resen t 
an im p o r ta n t issue  fo r  review.® Y et, the  m an ifes t a p p li­
cab ility  of th is  C o u r t’s ru lin g s  a g a in s t  s ta te  su p p o rt to

* The S tate  action involved in  the in s tan t case no t only offends the 
Constitution bu t equally transgresses 42 U.S.C. $4 1981 and 1982. These 
s ta tu to ry  prohibitions also provide significant and contem porary illum ina­
tion  on the intended scope o f the F ourteen th  A m endm ent itself.



11

private discrimination does not obscure the fact that a 
number of unresolved questions inhere in the adjudica­
tion of the pending constitutional issue. We recognize 
that the Court will desire carefully to examine certain re­
curring questions involved in state support to private 
practices of racial discrimination, and we respectfully sug­
gest that the instant case particularly lends itself to the 
examination of four of these questions, to which we now 
turn: T

1. What degree of state participation in private dis-, 
crimination constitutes “ state action’’ forbidden by the 
Fourteenth Amendment?

In its recent Wilmington Parking Authority decision, 
365 U. S. 715, 722, this Court stated that the Fourteenth 
Amendment is violated when state support to private dis­
crimination has been given “ to some significant extent.’ ’ 
This Court will certainly be called upon in the pending 
cases to determine whether a “ significant extent’’ of state 
support to discrimination inheres in the arrest, accusa­
tion, prosecution and conviction (taken separately or to­
gether), of Negro customers peaceably seeking to obtain 
services provided by business establishments catering to 
the general public.

We submit that state prosecution and conviction which 
enforces the racial discrimination of a business proprietor 
constitutes significant state aid to discrimination in viola­
tion of the Fourteenth Amendment.8 But in the instant

T A fifth question fo r this C ourt’s consideration may be whether in this 
ease the highest court of M aryland has construed the M aryland enact­
ment “as authorizing discrim inatory classifications based exclusively on 
eolor.” See concurring opinion of Mr. Justice  S tew art in Burton v. 
W ilm in g to n  P a r k in g  A u th o r i t y ,  365 U.S. 715. W hile the M aryland s ta t­
ute is neutral on its face, as construed below it requires the conviction 
of one who, “a fte r having been duly notified by the owner or agent not 
to do so” because  he is  a N e g ro , enters o r crosses over h is p roperty .

8 This, indeed, is the holding qf the Third Circuit, one directly con­
tra ry  to  the ru ling  below, under sim ilar factual circumstances. See 
Valle v. Stengel, 176 F . 2d 697.



12

ease we have far more state action than prosecution and 
conviction. Here the Deputy Sheriffs were the Omnipres­
ent administrators and enforcers of the owners’ racial 
discrimination; here on orders of the private management 
the officer of the State, wearing his badge as a Deputy 
Sheriff, demanded that petitioners leave the premises be­
cause they were Negroes, thereafter arrested them “ be­
cause they were Negroes”, and filed sworn complaints 
which initiated the State prosecutions. The entire sequence 
of events demonstrates Maryland’s inextricable and con­
tinuous involvement in the administration and enforcement 
of the racially discriminatory policy of Glen Echo Park.

2. Is the Fourteenth Amendment transgressed in the ah-
X  *

sence of a shotting that it has been the state’s purpose to 
enforce racial discrimination, when the state’s authority 
'has served to administer and enforce such discrimination?

The court below ruled that the arrest and conviction of 
petitioners “ as a result of the enforcement by the operator 
of the park of its lawful policy of segregation” , could not 
“ fairly be said to be” the action of the State. In so do­
ing, the court below apparently accepted a major conten­
tion of the State, that prosecution and conviction is es­
sentially a neutral manifestation of Maryland’s general 
interest in enforcing “ property rights,” devoid of any 
racial connotation. This contention does not question that 
the manifestation of the State’s power has the effect of 
supporting the practice of racial discrimination; rather, 
it suggests that, unless the State’s purpose is to give sup­
port to discrimination, the Fourteenth Amendment is not 
violated.

But discriminatory “ motivation” by the state can hardly 
he the sine qua non of the Fourteenth Amendment’s ap­
plicability when as a matter of fact the exercise of the



13

state’s power supports and abets the practice of racial 
discrimination. Nowhere in the restrictive covenant de-

- cisions or in the recent formulation in Wilmington Park­
ing Authority is a motive requirement suggested; recently, 
in Gomillion v. Lightfoot, 364 U.S. 339, this Court re­
jected a similarly confining motivational interpretation 
of the Fourteenth Amendment’s equality guarantee. In­
deed, the very contention that the State is “ neutrally” 
enforcing property rights rather than intending to assist 
discrimination, was rejected in Shelley v. Kraemer, this 
Court emphasizing that “ the power of the State to create 
and enforce property interests must be exercised within 
the boundaries defined by the Fourteenth Amendment”
(p. 22).

* In any event, in the instant case it is clear that not only 
the effect hut the purpose of the State’s action has been 
to give support to Glen Echo’s racial policy. The State 
surrendered its police authority to the use and control 
of a private corporation for its enforcement of racial dis­
crimination. Armed with police authority, Deputy Sheriff 
Collins obeyed the orders of his employers in seeking to 
expel and thereafter in arresting and charging petitioners 
for trespass. Collins, acting under color of law, had as 
his sole purpose the administration of discrimination 
against Negroes. Having put its authority under the 
orders and control of the Park for its enforcement of racial 
discrimination, the State cannot now be heard to say that 
the owners’ purpose was not its purpose as well.

3. To what extent is the resolution of the constitutional 
issue affected by the consideration that the “ property 
rights”  being enforced are those of business establishments 
catering to the general public rather than homeowners or 
others seeking personal privacy?

In Marsh v. Alabama, 326 U.S. 501, this Court ruled 
that the exertion of state criminal authority on behalf of



14

a proprietor’s restriction on the liberties of a member of 
the general public on his premises was precluded by the 
Fourteenth Amendment. The Court pointed out (at 505- 
506): “ The State urges in effect that the corpoi-ation’s right 
to control the inhabitants of Chickasaw is coextensive with 
the right of a homeowner to regulate the conduct of his 
guests. We cannot accept that contention. Ownership does 
not always mean absolute dominion. The more an owner, 
for his advantage, opens up his property for use by the 
public in general, the more do his rights become circum­
scribed by the statutory and constitutional rights of those 
who use it.” (Emphasis supplied). The Marsh case thus 
highlights the significance attaching to the fact that in the 
pending case racial discrimination is being enforced by the 
State on behalf of a public establishment rather than on be­
half o f individuals, homeowners or associations seeking pro­
tection of rights of personal property or privacy. As the 
Government’s brief affirmed with respect to a similar tres­
pass prosecution in last term’s Boynton case (at p. 20, 22), 
the Fourteenth Amendment is infringed where the state 
“enforces or supports racial discrimination in a place open 
for the use of the general public,”  for the issue

“ is not whether the right, for example, of a home- 
owner to choose his guests should prevail over peti­
tioner’s constitutional right to be free from the state 
enforcement of a policy of racial discrimination, but 
rather whether the interest of a proprietor who has 
opened up his business property for use by the gen­
eral public—in particular, by passengers travelling 
in interstate commerce on a federally-regulated car­
rier—should so prevail.”

Glen Echo Amusement Park is a licensed business enter­
prise owned and operated by corporations chartered by 
the State of Maryland. It caters to the general public as



15

the major amusement park in the District of Columbia area 
and none of its numerous advertisements through various 
means of public communication reflected any discrimina­
tion against Negro members of the public. No tickets of 
admission were required for entrance to the Park through 
its open gates, and no signs around the Park proclaimed 
any restriction upon the custom of Negro patrons. These 
factors underline the critical consideration in the pending 
case that the State’s power is being invoked to enforce 
not personal privacy, but rather to assist a business cater­
ing to the general public in its refusal of service to Negro 
members of the public. We suggest that in the disposi­
tion of the pending issue, a vital constitutional difference 
inheres in the distinction between state enforcement of 
raeial discrimination at places of public accommodation, 
and state protection (where there has been no dedication 
of the property to the general public) of individual, resi­
dential or associational privacy.9

4. What ivould he the impact of■ a ruling by this Court 
that state power may not he invoked to assist business 
establishments in their discrimination against Negro cus­
tomersf

In its public school desegregation decisions this Court 
evidenced its concern with the impact of a constitutional 
ruling requiring widespread changes in local customs and

* I t  cannot be too strongly emphasized tha t there is involved here, not 
the righ t of an individual to determ ine the people he will receive and 
en terta in  in his home or private estate, or to select the beneficiaries of 
bis private  benevolence. Compare P e n n s y lv a n ia  v. B o a rd  o f  T r u s ts ,  357 
U.S. 570, with P e n n s y lv a n ia  v. B o a rd  o f  T r u s ts ,  353 U.S. 230. The righ t 
o f the individual to the aid of the state in enforcing his own discrim ina­
to ry  ideas outside his strictly  private o r personal domain is another m at­
ter. And it  is here tha t the Fourteenth  Amendment forbids the state to 
intervene to support racially discrim inatory practices. P rivate  corpora­
tions cannot invite the general public to patronize their businesses and then 
call upon the state to exclude members o f the public solely because of 
th e ir  race.



16

practices. In the pending cases this Court will doubtless 
consider the suggestion that, if denied state enforcement 
of racial practices, proprietors will widely resort to forc­
ible self-help.10 On this score, we submit that the public 
record demonstrates the unlikelihood of any substantial 
discord or danger attendant upon the removal of state 
support to the discriminatory practices of enterprises 
serving the public. It is not the habit of establishments 
seeking the trade of the public to engage in the unpleasant 
work of self-help ousters of racial minorities; rather they 
seek the police to make the ousters for them. The recent 
abandonment of racial practices by business communities 
in many Southern localities demonstrates that these prac­
tices are not the product of public attitudes or business 
necessity but only the vestigial remains of former condi­
tions, succored by the willingness of public authorities to 
enforce the written and unwritten law of segregation.
' Prior to February, 1960, lunch counters throughout the 
South denied normal service to Negroes. Six months later, 
lunch counters in 69 cities had ended their discriminatory 
practices (N. Y. Times, Aug. 11, 1960, p. 14, col. 5); by 
October the number of desegregated municipalities had 
mounted to more than one hundred (N. Y. Times, Oct. 
18, 1960, p. 47, col. 5) and has since continued to increase 
without apparent incident.

There is more evidence that removal of legal sanctions 
supporting segregation in public places effectively obviates

10 As the Suprem e C ourt of N orth Carolina pu t the suggestion in A v e n t  
V. N o r th  C a ro lin a  (petition  pending. No. 85 this T erm ), if an owner 
cannot bar Negroes “by judicial process as here, because it is S tate action, 
then he has no o ther a lternative but to eject them with a gentle hand if 
he can, w ith a strong hand if he m ust.” This contention is not, of course, 
legally relevant to the constitutional validity of S tate action in support 
o f discrim ination. W hat we suggest in the tex t here is that, the conten­
tion is not only legally irrelevant but factually  tenuous. Indeed, in D ur­
ham, N orth  Carolina, where A v e n t  arose, the dime stores have since quietly 
abandoned discrim ination.



17

further conflict or difficulty. WheiL state segregation laws 
were struck down, public libraries in Danville, Virginia 
and Greenville, South Carolina were closed to avoid de­
segregation; they reopened a short time later, first on a 
“ stand up only” basis and then bn a normal basis, all 
without incident. Then, too, when public swimming pools 
were judicially ordered to desegregate, San Antonio, 
Corpus Christi, Austin, and others integrated without 
disorder or difficulty. See Pollitt, The President’s Powers 
in Areas of Race Relations, 39 N.C.L. Rev. 238, 275. Sim­
ilarly, Miami Beach, Houston, Dallas and others inte­
grated their public golf courses without incident. Ibid. 
Again, while the in terrorem argument against desegre­
gation was suggested in cases involving pullman cars 
(Mitchell v. United States, 313 U.S. 81), dining cars {Hen­
derson v. United States, 339 U.S. 816), buses (Morgan v. 
Virginia, 328 U.S. 373), and air travel and terminal service 
(Fitzgerald v. Pan American World Airways, 229 F. 2d 
499; Nash v. Air Terminal Services, 85 F. Supp. 545), 
experience has disproved the predictions of violence.

In the instant case no possible difficulty could arise from 
this Court’s invalidation of State support for segregation 
at Glen Echo Amusement Park, the Park having aban­
doned its prior racial practices in March of this year (see 
Washington Post, March 15, 1961, p. 1, col. 2). Unques­
tionably, an element in the management’s abandonment of 
discrimination was petitioners’ challenge to the State’s 
enforcement of that discrimination. The national evidence 
equally demonstrates that state enforcement of segregation 
constitutes the last remaining cornerstone for racial prac­
tices at places of public service and accommodation.



18

Conclusion

The instant case, involving prosecutions for trespass, 
presents in sharp focus constitutional questions related to 
those the Court has agreed to review in the Louisiana 
cases, arising from prosecutions for breach of the peace. 
In a like setting, this Court has indicated the desirability 
of its concurrent review over cases presenting related 
aspects of a constitutional question of national importance. 
Brown v. Board of Education, 344 U.S. 1, 3. It is sub­
mitted that the grant of certiorari in this case is justified 
both by the compelling record of Maryland’s administra­
tion of and support to the “ private” practice of racial 
discrimination, and by the illumination this record fur­
nishes upon material aspects of a pending constitutional 
issue of nationwide importance.

Respectfully submitted,
J oseph L. Rauh, J r.,
J ohn S ilard,

1631 K  Street, N. W .,
Washington 6, D. C. 

J oseph H. Sharlitt,
L ee M. H ydeman,
Claude B. K ahn,

1632 K Street, N.W., 
Washington 6, D. C.

, Attorneys for Petitioners.Of Counsel:
T hurgood M arshall ,
J ack Greenberg,
J ames M. Nabrit, III,

10 Columbus Circle,
New Y o rk  19, New York.



I n  The

Supreme Court of the United States

O ctober  T e r m , 1961

No. 287

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T. WASHINGTON, 

JR., a n d  GWENDOLYNE GREENE,
Petitioners,

v.

STATE OF MARYLAND,
Respondent.

O n  P e t it io n  fo r  W r it  o f  C ertio ra ri to  t h e  
Court of A p pe a l s  o f  M aryland

B R IE F  IN  O P P O S IT IO N

Thom as B. F in a n ,
Attorney General,

Clayton A. D ie t r ic h ,
Assistant Attorney General, 

1201 Mathieson Building, 
Baltimore 2, Maryland,

F o r  Respondent.

The Daily Record Co., Baltim ore 3, Md.



I N D E X

T a ble  o f  C o n ten ts

page

O p in io n  B e l o w  ............................................................................  1

J u r isd ic t io n  ..............................   2

Q u e s t io n  P resen ted  ..................................................................  2

S t a t e m e n t  .................................................................................... 2

A r g u m e n t :

This petition does not present any unique fac­
tual situation nor any legal proposition which 
has not been fairly included in cases recently 
before this Honorable Court 4

C o n c l u sio n  .........................................................................  9

T a ble  o f  C it a t io n s  

Cases
Alpaugh v. Wolverton, 36 S.E. 2d 906 (Virginia) 9
Boynton v. Virginia, 364 U.S. 454 4, 5, 8,9,10
Brown v. Board of Education of Topeka, 344 U.S. 1,

347 U.S. 483 8
Burton v. Wilmington Parking Authority, 365 U.S.

715 ............................. 4,5,8
Coleman v. Middlestaff, 305 P. 2d 1020 (California) 9
De La Ysla v. Publix Theatres Corporation, 26 P. 2d

818 (Utah) 9
Drews v. State, 224 Md. 186 9
Drews v. State, Motion to Dismiss or Affirm, No. 71,

October Term, 1961, U.S. S. Ct............................  4
Fletcher v. Coney Island, 136 N.E. 2d 344 (Onio) .... 9
Goff v. Savage, 210 P. 374 (Washington) 8
Good Citizens Assoc, v. Board, 217 Md. 129 9
Greenfeld v. Maryland Jockey Club, 190 Md. 96...... 9



11

PAGE

Griffin & Greene v. State, 225 Md. 422, 171 A. 2d 717 1
Horn v. Illinois Central Railroad, 64 N.E. 2d 574

(Illino is) ...............................................................................  9
Madden v. Queens County Jockey Club, 72 N.E. 2d

697 (New York) ................................................  8
Slack v. Atlantic White Tower System, Inc., 181 F.

Supp. 124 ............................................................  9
Terminal Taxicab Co. v. Kutz, 241 U.S. 252 9
Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.

2d 824 (Texas) ...................................................  8
United States v. United Mine Workers of America,

330 U.S. 258 ....................................................... 5
Williams v. Howard Johnson's Restaurant, 268 F. 2d

845 ( 4th Circuit) ................................................  9
Wolfe v. North Carolina, 364 U.S. 177.......................  5
Younger v. Judah, 19 S.W. 1109 (Missouri) .............  8

Statutes
Constitution of the United States, Fourteenth

A m endm ent....................................................................  9

Miscellaneous
28 U.S.C.A., Section 1257 (3) .....................................  2
U. S. S. Ct. Rules, Revised Rule 19 ...........................  2

I n d e x  t o  A p p e n d i x

Testimony:
Francis J. Collins—

Direct ......................................................................  *
Cross ........................................................................  1
Redirect ................................... -............. ...............  2



Ill

PAGE
Abram Baker—

Cross ............................................................  3
Redirect ........................   3
Recross .................................................   3

Kay Freeman—
Direct 
Cross
Examination by the Court......... .................  5



In The

O ctober T e e m , 1961

No. 287

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T. WASHINGTON,
, JR., and  GWENDOLYNS GREENE,

Petitioners,

STATE OF MARYLAND,
Respondent.

On P e t it io n  fo r  W r it  of C ertiorari to  th e  
C ourt  of  A ppe a l s  of  M aryland

BRIEF IN OPPOSITION

OPINION BELOW
The opinion of the Court of Appeals of Maryland is fully 

set out on pages 22 through 29 of the Appendix to the 
Petition for Writ of Certiorari (hereinafter referred to as 
“A”) and is now reported in the Advance Sheets, 225 Md. 
422 and 171 A. 2d 717.



2

JURISDICTION
The judgment of the Court of Appeals of Maryland was 

entered on June 8, 1961. The Respondent denies that 28 
U.S.C.A., Section 1257(3) or Revised Rule 19 of this 
Honorable Court provides jurisdiction for consideration 
of the instant Petition for Writ of Certiorari.

QUESTION PRESENTED
The Respondent accepts the substance of the Petitioners’ 

question but submits that it should be rephrased, to delete 
characterizations and conclusions, as follows:

May the State of Maryland, under a general statute pro­
hibiting trespass on private property and on the complaint 
of the owner of a privately-owned and operated amusement 
park, convict persons who picket and enter upon such 
amusement park and who, after demand by the agent of 
the owner, refuse to leave such amusement park?

STATEMENT
This is a Petition for Writ of Certiorari to review the 

judgment of the Court of Appeals of Maryland affirming 
the conviction of the Petitioners for violation of the 
general statute prohibiting trespass on private property.

The Court of Appeals affirmed the conviction of these 
five Petitioners and reversed the conviction of five other 
persons in a companion case. The Court of Appeals dis­
tinguished between the two cases on the basis that these 
Petitioners had been duly notified by the agent of the 
owner to leave the private amusement park, whereas in 
the companion case the authority of the guard giving the 
notice was not established. Although the same guard gave 
the notice in both cases, the evidence in the companion 
case did not clearly establish that the guard was acting



3

on behalf of the concessionaire who operated the res­
taurant in the amusement park.

These Petitioners were a part of a group of about forty 
people who left the District of Columbia and entered the 
State of Maryland on June 30, 1980. The group proceeded 
to the area of the privately-owned amusement park for 
the purpose of protesting the park’s known policy of ad­
mitting to the premises and providing service to white 
people only. See Appendix hereto (hereinafter referred 
to as “Apx.”), pages 4 and 5. The group, including these 
five Petitioners, staged a picket line for an hour near the 
entrance to the amusement park, displaying prepared signs 
and placards which protested racial segregation (Apx. 5). 
After surreptitiously receiving tickets for amusements 
within the park (Apx. 4, 5), these five Petitioners left the 
picket line and entered the private property of the amuse­
ment park, placed themselves upon the carousel and re­
fused to leave the premises when requested to do so by the 
park’s agent (Apx. 2).

The park’s agent at the time was Lieutenant Collins, 
who was an employee of the National Detective Agency, a 
private organization authorized to provide guard service 
to its clients. Under the State law such guards do not have 
police power. The public local laws authorized the par­
ticular county to deputize agents of the owners of private 
property and businesses for the purpose of permitting 
them to obtain police protection without cost to the tax­
payers generally. Such special deputies are restricted in 
their authority to the premises of the applicant and do not 
have the county-wide authority of a regular deputy sheriff. 
Lieutenant Collins had been assigned under the guard 
contract between the National Detective Agency and the 
amusement park to be the senior guard with the title of 
lieutenant.



4

Lieutenant Collins wore the uniform of the National 
Detective Agency, his employer, and as guard on the pri­
vate amusement park property, he was to execute the 
orders of the owner and operator as its agent. Under the 
instructions of the owner and operator, he arrested the 
Petitioners because they were trespassers (Apx. 3). The 
trespass incident caused a milling crowd to become dis­
orderly (Apx. 2, 5).

In the companion case, which was reversed by the Court 
of Appeals of Maryland, two of the arrestees were white.

This is one of several actions, involving claims of civil 
rights against private property, which have been developed 
through the criminal and appellate courts of the states 
to be pressed upon the attention of this Honorable Court. 
Compare Respondent’s Motion to Dismiss or Affirm in Dale 
H. Drews v. State oj Maryland, No. 71, October Term, 1961.

ARGUMENT
This Petition Does Not Present Any Unique Factual 

Situation Nor Any Legal Proposition Which Has Not Been 
Fairly Included In Cases Recently Before This Honorable 
Court.

The proposition tendered by the Petitioners is essen­
tially the same as the one presented originally in Boynton v. 
Virginia, 364 U.S. 454. The Petitioners in the Boynton 
case and the Solicitor General, by a brief amicus curiae, 
urged this Honorable Court to consider the same proposi­
tion which is again being tendered by these Petitioners, 
but this Honorable Court, in its wisdom, decided the case 
on another basis. Undoubtedly, this Honorable Court was 
following the concept contained in the last sentence in 
the recent dissent by Mr. Justice Harlan in Burton v. 
Wilmington Parking Authority, 365 U.S. 715.



5

“It seems to me both unnecessary and unwise to reach 
issues of such broad constitutional significance as those 
now decided by the Court, before the necessity for 
deciding them has become apparent.”

Evidently, counsel for the Petitioners is not satisfied with 
the position taken by this Honorable Court in the Boynton 
case, since he quotes and urges again the arguments of the 
Solicitor General which this Honorable Court had pre­
viously considered and rejected.

The Petitioners refer to other applications for certiorari 
currently pending before this Honorable Court from 
Virginia, North Carolina and Louisiana. This curious con­
dition tends to indicate that there is a concerted deter­
mination that this Honorable Court must continually be 
presented for decision each term the fringe questions in 
the field of civil rights and be vigorously pressed forward 
each year into new areas even prematurely. There has 
been no lack of opportunity in the last several years for 
this Honorable Court, if it had seen fit, to consider the 
question urged by the Petitioners. Compare Wolfe v. North 
Carolina, 364 U.S. 177; Boynton v. United States, 364 U.S. 
454, supra; and Burton v. Wilmington Parking Authority, 
365 U.S. 715, supra. The sudden appearance of many crim­
inal cases involving claims of discrimination in the last 
several years is not consistent with normal coincidence. 
Compare United States v. United Mine Workers of America, 
330 U.S. 258. It is pertinent to observe the comment of 
the trial Judge below in his oral opinion (A. 20):

“Why they didn’t file a civil suit and test out the right 
of the Glen Echo Amusement Park Company to fol­
low that policy is very difficult for this Court to under­
stand, yet they chose to expose themselves to possible 
harm; to possible riots and to a breach of the peace.



6

To grant certiorari to these Petitioners, and perhaps to 
the petitioners in the other cases referred to by these 
Petitioners, is to encourage public violence and the use 
of the criminal law rather than the civil law for the loca­
tion and determination of the extent of particular civil 
rights. The civil law should not be evolved in the criminal 
courts of the nation, and the creation of artificial crises 
should not be encouraged.

The Petitioners, in order to supply an air of uniqueness 
to their position, have somewhat distorted the evidence in 
the case in the trial court. The Petitioners continually 
refer to the private detective agency guard as “Deputy 
Sheriff Collins”, whereas everyone in the trial court recog­
nized his true status by referring to him as “Lieutenant”. 
There is nothing in the record to support the assertion that 
Collins was hired by the amusement park for the sole 
purpose of excluding Negroes. The usual reason an owner 
or businessman engages uniformed guards is to maintain 
peace and to protect property from damage or theft. There 
is nothing in the record to indicate that Collins was hired 
for any other reason.

The Petitioners have conveniently overlooked the fact 
that the Court of Appeals reversed the companion case 
against Greene and others where the same guard gave the 
same instruction to leave the restaurant in the amusement 
park but where there was a failure in the record to clearly 
establish that Collins had the concessionaire’s authority as 
private owner to give such a notice. The opinion of the 
Court of Appeals clearly indicates that Collins was not 
executing any State authority by virtue of his special 
deputy sheriff’s commission but was acting solely as the 
agent of the private property owner in directing the Peti­
tioners to leave the private amusement park premises. It 
will be noted that although Lieutenant Collins arrested

i



7

the Petitioners, nevertheless he went through the same 
procedure as any ordinary citizen in obtaining an arrest 
warrant from a justice of the peace for Montgomery County 
directed to the county superintendent of police (Record 
Extract, page 11).

It is difficult to reconcile the characterization that the 
private amusement park was open to the general public 
with the fact that these Petitioners admittedly believed the 
park to be restricted to white people, actually protested 
the supposed segregation policy by picketing prior to entry, 
surreptitiously obtained carousel tickets through white 
people and concede in their instant petition that the amuse­
ment park “has traditionally been patronized by white 
customers” on page 3.

The thrust of the Petitioners’ argument is that the right 
of the owner of a private business to determine who his 
customers will be is lost whenever this discretion is based 
on his disinclination to serve a particular racial group and 
that the ordinary trespass law, which insures peaceful 
possession, is nugatory when the owner’s motivation is 
based on race. The Petitioners seek to strip the private 
property owner of his right to determine his invitees and 
to relegate such owner to violent self-help, when the mem­
bers of a race with whom he is not inclined to do business 
take the law into their own hands and trespass on his 
private property. Although the Petitioners have taken 
liberties with the record and have enjoyed excursions into 
the hearsay of newspapers, which were not admitted into 
evidence below, to theorize on the impact which the de­
struction of long-established private property law con­
cepts might produce, nevertheless, the Petitioners have 
not indicated whether they should be entitled to have the 
State defend them while trespassing if the private owner 
should resort to violent self-help. A petition for a writ



8

of certiorari should be addressed to the law as it is and 
not to speculative theorizing as to what the law could be 
based on hearsay.

The Petitioners were not satisfied to raise their legal 
theories concerning the rights of a private property owner 
by a deliberative civil proceeding but took the law into 
their own hands and forced the issue into the criminal 
courts. The Petitioners refer to their trespass as peace­
able but it is difficult to reconcile an invasion of another’s 
private property against his known wish with the use of 
that word.

The Petitioners have referred to other cases which this 
Honorable Court has considered. In pertinent cases there 
has been a public ownership element. It was either a 
public school, a public recreational facility or a publicly- 
owned utility. The taxpayers, through the State or munici­
pality, either owned or operated it or they profited from a 
lessee thereof. The public ownership element has been 
present in every case, from Brown v. Board of Education 
of Topeka, 344 U.S. 1 and 347 U.S. 483 to and including 
Burton v. Wilmington Parking Authority, 365 U.S. 715, 
supra. In the only case which involved private ownership 
this Honorable Court decided to consider the matter from a 
federal statutory aspect. Boynton v. Virginia, 364 U.S. 
454, supra.

The common law has been well settled that the owner 
or operator of a private enterprise has the right to select 
his clientele and to make such selection based on color if 
he so desires. A few of the noteworthy case are: Madden 
v. Queens County Jockey Club, 72 N.E. 2d 697, 698 (New 
York) ; Terrell "Wells Swimming Pool v. Rodiiguez, 182
S.W. 2d 824, 825 (Texas); Younger v. Judah, 19 S.W. 1109, 
1111 (Missouri); Goff v. Savage, 210 P. 374 (Washington);



9

De La Ysla v. Publix Theatres Corporation, 26 P. 2d 818, 
820 (Utah); Horn v. Illinois Central Railroad, 64 N.E. 2d 
574, 578 (Illinois); Coleman v. Middlestaff, 305 P. 2d 1020, 
1022 (California); Fletcher v. Coney Island, 136 N.E. 2d 
344, 350 (Ohio); Alpaugh v. Wolverton, 36 S.E. 2d 906, 908 
(Virginia); Greenfeld v. Maryland Jockey Club, 190 Md. 
96, 102; Good Citizens Assoc, v. Board, 217 Md. 129, 131; 
Drews v. State, 224 Md. 186, 191, 193, 194; Slack v. Atlantic 
White Tower System, Inc., 181 F. Supp. 124, 127; and 
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845 
(4th Circuit).

This Court has used language consistent in Terminal 
Taxicab Co. v. Kutz, 241 U.S. 252, 256, and Boynton v. 
Virginia, 364 U.S. 454, supra, where it stated that:

“We are not holding that every time a bus stops at a 
wholly independent roadside restaurant the Interstate 
Commerce Act requires that restaurant service be 
supplied in harmony with the provision of that Act.”

The Petitioners are in the anomalous position of recog­
nizing that the Congress of the United States cannot enact 
a  federal equal rights statute under the Fourteenth Amend­
ment (Civil Rights Cases, 109 U.S. 3), nevertheless assert­
ing that this Honorable Court by judicial decision can ac­
complish the same result by now holding that the same 
Fourteenth Amendment created a new limitation on the 
use of private property as developed in the common law. 
For this proposition the Petitioners cite no authority.

CONCLUSION
The Petitioners’ essential proposition is that a person 

c a n n o t be convicted of trespass if the private owner’s ex­
clusion is based on racial discrimination. This same propo­
sitio n  was presented and urged by the Solicitor General



10

in the Boynton case, but this Honorable Court declined to 
decide the Boynton case on that issue. The same proposition 
has been available to the Court in several other recent 
cases. There is nothing new or unique about the Petitioners’ 
proposition. This petition is addressed to a desire for legis­
lative relief rather than support in existing law and is 
another phase of the concerted action to press for an im­
mediate determination of a new front in the civil rights 
crusade.

The contention that violent self-help is the only remedy 
available to a private property owner or that the aggressive 
trespasser alone can receive State aid to preserve his as­
serted right presents little logic to a jurisprudence based 
on  reconciling conflicting rights and developing peaceful 
remedies.

T h is  petition for a writ of certiorari is premature as 
a n  abstract proposition and this Honorable Court has con­
s is te n tly  recognized that the essence of this complaint does 
n o t in v o lv e  a substantial federal question. This petition 
sh o u ld  b e  den ied .

Respectfully submitted,

T h o m a s  B. F in a n ,
A tto rn e y  General,

C la yton  A. D ie t r ic h ,

A ssis tan t A tto rn e y  G en era l, 
1201 M ath ieson  B uild ing , 
B a ltim o re  2, M ary land ,

F o r  R esponden t.

4



Ap x . 1

APPENDIX TO BRIEF IN OPPOSITION NO. 287

September 12, 1960 
Vol. 1

(Transcript of testimony 6-7):
FRANCIS J. COLLINS, a witness of lawful age, called 

for examination by counsel for the plaintiff, and having 
first been duly sworn, according to law, was examined and 
testified as follows, upon

DIRECT EXAMINATION
By Mr. McAuliffe:

*  *  *  *  *  *

(T. 18):
Q. During the five minute period that you testified to 

after you warned each of the five defendants to leave the 
park premises, what, if anything, did you do? A. I went 
to each defendant and told them that the time was up and 
that they were under arrest for trespassing. I then es­
corted them up to our office, with a crowd milling around 
there, to wait for transportation from the Montgomery 
County Police, to take them to Bethesda to swear out the 
warrants.

* * * * * *

(T. 21):
CROSS EXAMINATION

By Mr. Duncan:
* * * * * *

(T. 38-39):
Q. Lets take Mr. Washington, here on the end. Tell me 

the conversation you had with him at the time you arrested 
him and what he said to you. A. As far as I recall there 
was no conversation between any of us, only I told them



A p x . 2

about the policy of the park and they answered me that 
they weren't going to leave the park.

* * * * * *

(T. 42):
REDIRECT EXAMINATION

By Mr. McAuliffe:
* * * * * *

(T. 48-49):
By Judge Pugh:

Q. Did these defendants have any other people with 
them? A. There was a large crowd around them from the 
carousel up to the office.

Mr. McAuliffe continues:
Q. And prior to the arrest, during this five minute inter­

val that you gave them as a warning period, was there a 
crowd gathering at that time? A. Yes, sir.

Q. And what was the condition, or orderliness, of that 
crowd as it gathered there?

(Mr. Duncan) I object to that question, your Honor. Mr. 
Collins has testified that he arrested these persons for no 
other reason than that they were negroes, and gave them 
five minutes to get off the property.

Q. (Judge Pugh) Was there any disorder? A. It started 
a disorder because people started to heckling.

* * * * * *

(T. 67):
ABRAM BAKER, a witness of lawful age, called for ex­

amination by counsel for the plaintiff, and having first 
been duly sworn, according to law, was examined and 
testified, upon

* * * * * *

t



A px . 3

(T . 7 6 ):
CROSS EXAMINATION

B y Mr. Duncan:
*  *  *  *  *  *

(T . 8 5 ):
Q. What did you mean when you told Lieutenant Collins 

to arrest white persons who came into the park property, 
if they were doing something wrong?

(Mi'. McAuliffe) Objection.
(Judge Pugh) Read .the question back. (Last question 

was read by the reporter.) Objection overruled.
A. Well if they were in the picket line and then ran out 

into the park and we told them to leave and they refused, 
why shouldn’t you arrest them?

* * * * * *
(T . 9 6 ):

REDIRECT EXAMINATION
B y Mr. McAuliffe:

* * * * * *
(T . 9 7 ):

Q. Did you instruct Lieutenant Collins that he was to 
arrest negroes because they were negroes, or because they 
were trespassing? A. Because they were trespassing.

* * * * * *

(T. 98):
RECROSS EXAMINATION 

By Mr. Duncan:
Q. Did you instruct Lieutenant Collins to arrest any other 

persons who trespassed, other than negroes? A. I went 
over that once before with you. I told him if they came 
out of that picket line to come on to the property, to give 
them  due notice and to arrest them if they didn’t leave; 
white or colored.

* * * * * *



Apx . 4

(T. 110):
KAY FREEMAN,

a witness of lawful age, called for examination by counsel 
for the defendants, and having first been duly sworn, ac­
cording to lav/, was examined and testified as follows, upon

DIRECT EXAMINATION
By Mr. Duncan:

 ̂ * * * * *
Q. Prior to the time they were arrested, did they have 

tickets to ride on any of the rides? A. We all had tickets.
Q. Where did you acquire these tickets? A. They were 

given to us by friends.
Q. White friends? A. Yes.
Q. And they had made the purchase? A. That is right. 

* * * * * *
(T . 113):

CROSS EXAMINATION
By Mr. McAuliffe:

* * * * * *
(T . 114-115):

Q. Did you go out with these five defendants? A. Yes.
Q. Did you go out with any others? A. Yes.
Q. How many? A. Thirty-five or forty.
Q. And you all expected to use the facilities there at 

Glen Echo Park, in accordance with those advertisements? 
A. I expected to use them.

Q. Did you have any signs with you when you went out 
there? A. Yes.

Q. What did these signs say? A. They protested the 
segregation policy that we thought might exist out there.

*  *  *  *  *  *

t



A p x . 5

Q. Did these five defendants have signs? A. I don’t 
know. I think we all had signs, at one time or another.

* * * * * *
(T. 116):

Q. What did these five defendants do and other persons 
do? A. We had a picket line.

* * * * * *
Q. Why did you do that if you didn’t know the park was 

segregated? A. Because we thought it was segregated.
__ * * * * * *
(T. 118):

Q. Now you say after you got on the park property, 
tickets were given you by some white friends; is that right? 
A. That is right.

* * * * * *
(T. 120):

Q. Was there a crowd around there? A. Yes.
Q. Did you hear any heckling? A. Yes.

* * * * * *
(T. 123):

Q. How long did you march in this definite circle, with 
these five defendants, with these signs, protesting the park’s 
segregation policy, before the five defendants and you en­
tered Glen Echo Park? A. I don’t know.

Q. Would you give us your best estimate on that, please? 
A. Maybe an hour or maybe longer.

Hi * * * * *
(T. 125):

EXAMINATION BY THE COURT 
By Judge Pugh:

Q. Was the heckling a loud noise? A. Yes.
Q. How many people were in it? A. I don’t know, but 

the merry-go-round was almost surrounded.
* * * * * *



Apx . 6

(T. 126):
Q. Why didn’t you go with one or two people, instead 

of forty? What was the idea of going out there in large 
numbers? A. There was a possibility that it was segre­
gated.

Q. Well you all anticipated that there would be some 
trouble; didn’t you? A. Yes.

* * * * * *

*



I n  t h e

Ihtpmttp (Emir! of tljp Hufteft Utafpo
October T erm, 1961 

No................
% --------  ------- - o —--- --- -----——

F. L. Shuttlesworth and Charles B illups,

Petitioners,
—v.—

City of B irmingham.

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack Greenberg 
Constance Baker Motley 

10 Columbus Circle 
New York 19, N. Y.

Arthur D. Shores 
Orzell B illingsley 
P eter A. H all 
Oscar Adams 
J . R ichmond P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners
Leroy D. Clark 
J ames M. Nabrit, III 

Of Counsel



TABLE OF CONTENTS
PAGE

Citation to Opinions Below ..........................................  1

Jurisdiction ............................................ -..................... 1

Questions Presented ....................................................  2

Constitutional and Statutory Provisions Involved ....  3

Statement of tlie Case .................................................  3

How the Federal Questions Were Baised and Decided 
Below ........................................................................  5

Seasons for Granting the Writ ..................................  7

Conclusion ......................................................................  12

T able of Authorities Cited

Cases
Abie State Bank v. Bryan, 282 U. S. 765, 777, 778 ......  10
Adams v. Saenger, 303 U. S. 59................................... 10

Briscoe v. State of Texas, 341 So. 2d 432 ..................... 9
Burstyn v. Wilson, 343 U. S. 495 ....................................  11

Chaplinsky v. New Hampshire, 315 U. S. 568 .............  11
Connally v. General Construction Co., 269 U. S. 385 .... 11 
Cox v. New Hampshire, 312 U. S. 569 ........................  7

Garner v. Louisiana, 7 L. ed. 207 (1961) ..................... 9

Johnson v. State of Texas, 341 So. 2d 434 ................... 9
Junction R.R. Co. v. Ashland Bank, 12 Wall. (U. S.)

226,  230 ..................................................................................................................... 10



PAGE
King v. City of Montgomery, ——  A la.----- , 128 So.

2d 341 ........................................................................  9
Kovacs v. Cooper, 336 U. S. 77....................................  7

Monk v. Birmingham, 87 F. Supp. 538 (N. D. Ala. 1949), 
aff’d 185 F. 2d 859, cert, denied 341 U. S. 940 ..........  10

Railway Mail Ass’n v. Corsi, 326 U. S. 88, 98 (Justice
Frankfurter’s concurring opinion) .............................. 10

Rucker v. State of Texas, 341 So. 2d 434 ........ ............  9

Saia v. New York, 334 U. S. 558 ................................... 11
Schenck v. United States, 249 U. S. 47 ........................ 7,11
Shell Oil v. Edwards, 263 Ala. 4, 9, 88 So. 2d 689 (1955) 10
Smiley v. City of Birmingham, 255 Ala. 604, 605, 52 

So. 2d 710 (1951) ......................................................  10

Terminiello v. Chicago, 337 U. S. 1, 4 ..........................  7
Thompson v. City of Louisville, 326 U. S. 199.............. 8
Tucker v. State of Texas, 341 So. 2d 433 ..................... 9

Winters v. New York, 333 U. S. 507 ..............................  11

Statutes
Fourteenth Amendment to the Constitution of the 

United States, Section 1 .......................................... 3
United States Code, Title 28, §1257(3) ........................  2
General Code of Birmingham of 1944 ...........................  3
General City Code of Birmingham

§824 ........................................................................... 5
§1436 ......................................................................  5, 8

Other Authorities
Pollitt, Duke L. J., Dime Store Demonstrations: Events 

and Legal Problems of First Sixty Days, 315 (1960) .. 8, 9



I l l

INDEX TO APPENDIX
PAGE

Opinion of Cates, Presiding Judge ............................ la

Order of Affirmance in Skuttlesworth Case.................  3a

Order Denying Application for Rehearing in Shuttles- 
wortk Case.................................................................. 4a

Order of Filing in Skuttlesworth Case ......................  6a

Order Denying Petition for Writ of Certiorari to the 
Court of Appeals in Skuttlesworth Case.................. 7a

Opinion of Price, Presiding Judge in Billups Case..... 8a

Opinion in Billups Case.............................  .................. 9a

Order Denying Application for Rehearing in Billups 
Case ............................................................................  10a

Order of Filing in Billups Case...................... ............  Ha

Order Denying Petition for Writ of Certiorari to the 
Court of Appeals in Billups Case ............................ 12a

Extracts From Transcript of Proceedings ................... 13a



I s  THE

Supreme (Emirt nf %  Hntfrii BtaUs
October T erm, 1961 

No................

—------ ------------------ ---- ------- -
F. L. Shuttlesworth and Charles B illups,

Petitioners,

City of B irmingham.
j ........—.----- -— —  ——-------——-

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioners pray that a writ of certiorari issue to re­
view the judgments of the Court of Appeals of Alabama, 
rendered on May 30,1961.

Citation to O pinions Below

The opinions of the Alabama Court of Appeals are re­
ported in 134 So. 2d 213 and 134 So. 2d 215 and are set 
forth in the Appendix hereto infra, pp. la, 2a and 8a. The 
denial of certiorari by the Supreme Court of Alabama is 
reported at 134 So. 2d 214 and 134 So. 2d 215.

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30,1961 (R. 44).* Appendix pp. 3a, 9a, infra.

* There are separate records for the Shuttlesworth and Billups 
cases. References to both records were made by a single citation 
where the page numbers are the same.



2

Application for rehearing before the Court of Appeals of 
Alabama was denied on June 20, 1961 (Shuttlesworth R. 
48, 49; Billups R. 47). A petition to the Supreme Court of 
Alabama for Writ of Certiorari was denied on September 
25, 1961, and application for rehearing was overruled on 
November 16, 1961 (Shuttlesworth page following R. 49; 
Billups, page following R. 47). The jurisdiction of this 
Court is invoked pursuant to 28 United States Code, §1257 
(3), petitioners having asserted below, and asserting here, 
the deprivation of his rights, privileges and immunities 
secured by the Constitution of the United States.

Question Presented

Alabama has convicted petitioners of “ineit[ing] or aid- 
ting] or abet [ting] another person to go or remain on 
the premises of another after being warned . . . ”. The 
record showed essentially that petitioner Shuttlesworth 
“asked for volunteers to participate in the sit-down demon­
strations” and that petitioner Billups was present at this 
request. There was no evidence that either persuaded any­
one to violate any law, or that anyone following petitioners’ 
suggestions did violate any law, valid under the Fourteenth 
Amendment to the United States Constitution. A Birming­
ham ordinance requires racial segregation in restaurants.

In convicting and sentencing petitioners respectively to 
180 and 30 days hard labor, plus fines, has Alabama denied 
liberty, including freedom of speech, secured by the due 
process clause of the Fourteenth Amendment?



3

Constitutional and Statutory Provisions Involved

This case involves the following constitutional provision:
Section 1 of the Fourteenth Amendment to the Constitu­

tion of the United States.
The case also involves the following provisions of the 

General Code of Birmingham of 1944:
“Section 824. It shall be unlawful for any person to 

incite, or aid or abet in, the violation of any law or 
ordinance of the city, or any provision of state law, 
the violation of which is a misdemeanor.”

“Section 1436 (1944), After Warning. Any person 
who enters into the dwelling house, or goes or remains 
on the premises of another, after being warned not to 
do so, shall on conviction, be punished as provided m 
Section 4, provided, that this Section shall not apply 
to police officers in the discharge of official duties.” 

“Section 369 (1944), Separation of races. It shall 
be unlawful to conduct a restaurant or other place for 
the serving of food in the city, at which white and 
colored people are served in the same room, unless 
such white and colored persons are effectually sepa­
rated by a solid partition extending from the floor 
upward to a distance of seven feet or higher, and un-

• Jess a separate entrance from the street is piovided 
for each compartment” (1930, Section 52bS).

Statem ent o f  the Case

These cases were tried in the Circuit Court of Jefferson 
County sitting without a jury (ft. 13) on evidence given 
by a City of Birmingham detective who testified concerning 
what had been placed in evidence at the trial of petitioner



4

Shuttlesworth for this alleged crime in the City Recorder’s 
Court, April 1, 1960. The record of the proceedings (R. 
13-34) is for the greatest part taken up by objections to 
the hearsay nature of the evidence and objections to com­
pelling testimony from defendants in the trespass eases 
themselves. (The former objections were overruled; the 
latter sustained.) The relevant testimony admitted into 
evidence is, however, extremely brief.

In summary, the evidence upon which petitioners Shut­
tlesworth and Billups were convicted of inciting, aiding or 
abetting another to go or remain on the premises of another 
after being warned not to do so was that one, James Gober 
and one, Albert Davis went to petitioner Rev. Shuttles- 
worth’s house on March 30, 1960 (R. 25-26, 28-29), that 
petitioner Billups drove Davis there (R. 28), and that peti­
tioner Billups was present (R. 28), that petitioner Shut­
tlesworth asked for volunteers to participate in sit-down 
demonstrations (R. 25-26, 28-29), that a list, not otherwise 
described, was made (R. 28-29), that Shuttlesworth an­
nounced he would get them out of jail (R. 29), that Gober 
and Davis participated in sit-down demonstrations on 
March 31 (R. 30), and that others who attended the meeting 
at Shuttlesworth’s house participated in sit-down demon­
strations (R. 30-31). The record contains nothing more.*

On this record petitioner Shuttlesworth was found guilty 
as charged and sentenced to 180 days hard labor for the 
city, plus $100.00 fine. Petitioner Billups was found guilty 
as charged and sentenced to 30 days hard labor for the 
city and $25.00 fine.

* Extracts from the transcript are set forth verbatim in the 
Appendix, infra.



\

5

How the Federal Questions Were Raised 
and Decided Below

After conviction in the Recorder’s Court of the City of 
Birmingham, petitioners appealed to the Circuit Court of 
Jefferson County for trials de novo, prior to which they 
filed motions to strike the complaint and demurrers al­
leging that §824 and §1436 of the General City Code of 
Birmingham were applied to deprive them of freedom of 
assembly and speech under the Fourteenth Amendment; 
that as applied the ordinances were an enforcement of 
racial segregation and, therefore, a denial of due process 
and equal protection of laws, in violation of the Fourteenth 
Amendment; that the ordinances as applied were so vague 
as to constitute denial of due process of law in violation 
of the Fourteenth Amendment (R. 2-4).

The motions to strike and the demurrers were overruled; 
exceptions were taken (R. 7).

At the close of the State’s evidence, petitioners moved 
to exclude the evidence alleging, among other things, that 
the trespass convictions (which petitioners allegedly had 
initiated) were invalid as based solely on race and, there­
fore, the complaint in this case was a denial of equal pro­
tection of the laws and the right of free speech and assembly 
secured by the Fourteenth Amendment; that the introduc­
tion of the proceedings in Recorder’s Court through hearsay 
evidence constituted a violation of the petitioner’s rights 
under the Fourteenth Amendment (R. 5, 6).

The motions to exclude the evidence were overruled and 
exception taken (R. 7).

At the end of the trial petitioners moved for new trials 
alleging, among other things, that: the ordinance under 
which they were convicted had been applied to deny free-



6

dom of speech, due process and equal protection of the laws 
in violation of the Fourteenth Amendment; that the Court 
erred in overruling the motion to strike the complaint, the 
demurrer, and the motion to exclude the evidence (R. 9-10).

The motions for new trial were overruled (R. 7-8).
Appeals were taken to the Alabama Court of Appeals 

and Assignments of Errors were filed against the action 
of the trial court in overruling the motion to strike the 
complaint (Assignment 1), the demurrers (Assignment 2), 
the motion to exclude the evidence (Assignment 3) and 
the motion for new trial (Assignment 4) (R. 42).

A full opinion was written by the Court of Appeals in 
Sfiuttlesworth v. City of Birmingham, 6 Division 802, 
(Shuttlesworth 45-47). In Billups’ case after a brief ref­
erence to testimony thought to implicate him, his conviction 
was affirmed on the authority of Shuttlesivorth (Billups 
45, 46).

The Court ruled adversely to all constitutional issues 
raised by petitioners:

“There is no question of the restriction of any right 
of free speech or other assimilated right derived from 
the Fourteenth Amendment, since the appellant coun­
seled the college students not merely to ask service in 
a restaurant, but urged, convinced and arranged for 
them to remain on the premises presumably for an 
indefinite period of time. There is a great deal of 
analogy to the sit-down strikes in the automobile in­
dustry referred to in National Labor Relations Board 
v. Fansteel Metallurgical Corp., 306 U. S. 240.

“As presented by the appellant’s assignments of 
error and brief, the judgment below is due to be

Affirmed.”

ii



7

Applications for rehearing before the Court of Appeals 
were overruled (Shuttlesworth 4S; Billups 47), Writs of 
Certiorari, sought in the Supreme Court of Alabama were 
denied (Shuttlesworth page after 49, Billups page after 
47). Application for rehearing before the Supreme Court 
of Alabama were overruled (Shuttlesworth 55, Billups 53).

Reasons for Granting the Writ

The court below decided federal constitutional proposi­
tions in conflict with decisions of this Court.

The conviction of petitioners and judgments sentencing 
them to hard labor in jail for 180 and 30 days respectively, 
denied them liberty secured by the due process clause of 
the Fourteenth Amendment to the United States Consti­
tution. This liberty has been taken away solely because 
petitioners exercised Fourteenth Amendment rights of free 
speech and assembly. “ . . . [Fjreedom of speech, though 
not absolute, Chaplinsky v. New Hampshire . . . , is never­
theless protected against censorship or punishment, unless 
shown likely to produce a clear and present danger of a 
serious substantive evil that rises far above public incon­
venience, annoyance, or unrest.” Terminiello v. Chicago, 
337 U. S. 1, 4. Petitioners are not charged with having 
conducted a meeting in an unlawful manner, e.g., by sound 
truck (Kovacs v. Cooper, 336 U. S. 77) or without a permit 
where one was required, Cox v. New Hampshire, 312 U. S. 
569, o r  under circumstances dangerous to public safety, 
e.g., Feiner v. New York, 349 U. S. 315, but cf. Terminiello 
v. City of Chicago, 337 U. S. 1, or to have spoken or 
m et in  a manner otherwise illegal. Neither have they been 
punished for crime for having created a clear and present 
d a n g e r  o f a  substantive evil which the state has the power 
to  p rev en t. Cf. Schenck v. United States, 249 U. S. 47.



8

In this case the record demonstrates merely that peti­
tioner Shuttlesworth “asked for volunteers and that there 
were some volunteers to take part in ‘sit-down’ demonstra­
tions ; Shuttlesworth promised to get them out of jail” 
(Opinion of Alabama Court of Appeals, Shuttlesworth v. 
City of Birmingham, App. la). In the case of Billups, 
the record shows only that Billups drove a student to Shut- 
tlesworth’s home and attended the meeting at which Shut­
tlesworth made the request for “volunteers” (Opinion of 
Alabama Court of Appeals, Billups v. City of Birmingham, 
App. 6a). There is no evidence at all that Shuttlesworth 
requested anyone to perform an unlawful act. The Ala­
bama Court of Appeals states that “the appellant counseled 
the college students not merely to ask service in a restau­
rant, but urged, convinced and arranged for them to remain 
on the premises presumably for an indefinite period of 
time” (App. la  (emphasis supplied)). The Alabama Court 
of Appeals also held that a “sit-down” demonstration being 
a form of trespass after warning, denotes violation of 
State law and especially of §1436 of the City Code, supra 
(ibid.).

But the record does not at all support these conclusions. 
See Thompson v. City of Louisville, 326 U. S. 199.

Petitioner Shuttlesworth’s request for volunteers to par­
ticipate in sit-down demonstrations does not on this record 
in any sense at all support a conclusion that he “urged, 
convinced and arranged for them to remain on the prem­
ises presumably for an indefinite period of time.” Nor does 
it support at all a conclusion that he asked them to engage 
in “trespass after warning.” A “sit-down” demonstration 
may take many forms. See Pollitt, Duke L. J., Dime Store 
Demonstrations: Events and Legal Problems of First Sixty 
Days, 315 (1960). Such demonstrations are not at all nec­
essarily a crime as this Court demonstrated by its decision



9

in Garner v. Louisiana, 7 L. ed. 207 (1961). Moreover, 
state courts under varying sets of facts have acquitted or 
reversed the convictions of participants in such demon­
strations.

See Pollitt, op. cit. supra, at p. 350 (trespass convictions 
of students convicted in Raleigh, N. C. dismissed); King
v. City of Montgomery, - ---- Ala. ----- 128 So. 2d 341
(trespass convictions for sit-in in private hotel reversed); 
Briscoe v. State of Texas, 341 So. 2d 432; Rucher v. State 
of Texas, 341 So. 2d 434; Tucker v. State of Texas, 341 
So. 2d 433; Johnson v. State of Texas, 341 So. 2d 434 
(convictions of sit-ins for unlawful assembly reversed).
i

There is no evidence in this record concerning precisely 
the activities petitioners are supposed to have counseled, 
and no evidence concerning the activities in which students 
are supposed to have engaged following petitioners’ advice 
when they participated in sit-ins. But even if one were 
to notice, arguendo, the convictions of Gober, et al., now 
here in No. 694 on Petition for Writ of Certiorari, it is 
respectfully submitted that the demonstrators in those 
cases committed no crimes but were engaged in activities 
protected by the Fourteenth Amendment to the United 
States Constitution. The request for nonsegregated service 
in the face of the Birmingham segregation ordinance did 
not constitute illegal activity by those students when viewed 
in the light of the Fourteenth Amendment to the United 
States Constitution1 for the proprietors were compelled to 
refrain from serving those petitioners by the Ordinance.2

1 Additional reasons demonstrating the unconstitutionality of 
the convictions in Gober are set forth in the petition in No. 694 
to which petitioners here respectfully refer the Court.

* “ ‘See. 369. Separation of races.
It shall be unlawful to conduct a restaurant or other place 

for serving of food in the city, at which white and colored



10

Consequently any “trespass” that occurred stemmed di­
rectly from the segregation law. Such convictions obvi­
ously were unconstitutional.

Petitioners having met and expressed themselves in a 
manner which was entirely legal and having counseled ac­
tivities which were entirely legal and concerning which 
there is no evidence whatsoever of illegality, were engaged 
in constitutionally protected free expression. Indeed, as 
Mr. Justice Harlan pointed out in his concurring opinion 
in Garner, a lawfully conducted sit-in protest is an exer­
cise of First Amendment and (as against the states) Four­
teenth Amendment rights. Counseling another to engage 
in such activity absent any evidence that illegal conduct is 
sought by the counsellor is a fortiori the exercise of free 
speech.3 Here petitioners did not seek to achieve a sub­

people are served in the same room, unless such white and 
colored persons are effectually separated by a solid partition 
extending from the floor upward to a distance of seven feet 
or higher, and unless a separate entrance from the street is 
provided for each compartment’” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
7 Code of Alabama, 1940, §429(1). See Shell Oil v. Edwards, 263 
Ala. 4, 9, 88 So. 2d 689 (1955) ; Smiley v. City of Birmingham, 255 
Ala. 604, 605, 52 So. 2d 710 (1951). “ ‘The act approved June 18, 
1943, requires that all courts of the State take judicial knowledge 
of the ordinances of the City of Birmingham.’ ” Monk v. Birming­
ham, 87 F. Supp. 538 (N. D. Ala. 1949), aff’d 185 F. 2d 859, cert, 
denied 341 U. S. 940. And this Court takes judicial notice of laws 
which the highest court of a state may notice. Junction R.R. Co. 
v. Ashland Bank, 12 Wall. (U. S.) 226, 230; Abie State Bank v. 
Bryan, 282 U. S, 765, 777, 778; Adams v. Saenger, 303 U. S. 59; 
Owings v. Hull, 9 Peters (U. S.) 607, 625.

3 Compare Fiske v. Kansas, 274 U. S. 38, where the criminal 
syndicalism act was held to have been applied unconstitutionally 
where it was not shown that defendants had advocated unlawful 
methods to obtain their goals. In the case now at bar petitioners’ 
goals were consonant with those of the high aspirations of the 
Fourteenth Amendment. Cf. Railway Mail Ass’n v. Corsi, 326 U. S. 
88, 98 (Justice Frankfurter’s concurring opinion).



11

stantive evil which the state has a right to prevent, see 
iSchenck v. United States, 249 U. S. 47; rather, they sought 
nonsegregated food service in the face of an obviously un­
constitutional facial segregation ordinance in the City of 
Birmingham which asserted a power the state does not 
possess.

Conviction of petitioners under the “inciting” ordinance 
is even further offensive to the Fourteenth Amendment 
because this ordinance does not reasonably apprise any­
one that to advocate a sit-in protest is a crime. A statute 
must give fair warning to a defendant of what acts are 

i prohibited, Connolly v. General Construction Co., 269 U. S. 
385 and -where it trenches upon free expression the statute 
must be even more specific. Winters v. New York, 333 
U. S. 507; Burstyn v. Wilson, 343 U. S. 495; Saia v. New 
York, 334 U. S. 558; Chaplinsky v. New Hampshire, 315 
U. S. 568.



12

W herefore, fo r the foregoing reasons, it is respectfully 
submitted tha t the petition fo r writ of certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 

10 Columbus Circle 
New York 19, N. Y.

Arthur D. Shores 
Orzell B illingsley 
P eter A. H all 
Oscar Adams 
J . R ichmond P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners

Leroy D. Clark 
J ames M. Nabrit, III 

Of Counsel



APPENDIX

Opinion of Cates, Presiding Judge

T he State of Alabama-—J udicial Department

THE ALABAMA COUKT OF APPEALS 
October Term, 1960-61 

6 Div. 802

. "     — —       —    —
P. L. Shuttlesworth

City of B irmingham

Appeal from Jefferson Circuit Court 
Cates, Judge,:

Appellant was convicted in the Circuit Court of Jefferson 
County of violating § 824 of the General City Code of Bir­
mingham of 1944, which reads as follows:

“I t  shall be unlawful for any person to incite, or aid 
o r  abet in, the violation of any law or ordinance of 
th e  city, or any provision of state law, the violation 
o f  which is a misdemeanor.”

T h e  particular corollary crime of which he was accused 
of in c itin g  others to commit is found in § 1436 of the C>ty 
Code. This section makes it an offense to remain on the 
p rem ise s  o f another after a warning. See James Gober v.
City of Birmingham, 6 Div. 797 (Ms.), -----  Ala. App.
■-----, this day decided.

We can only consider one point raised by the assign­
m en ts  of e r ro r  and the propositions of law and argument, 
i.e., th e  sufficiency of the evidence to show a  violation of 
% 824, su p ra .



2a

Opinion of Cates, Presiding Judge

The statement of the case set forth in appellant’s brief 
(which we are entitled to rely upon without regard to the 
record itself in civil cases) is that Slmttlesworth asked for 
volunteers, and that there were some volunteers to take 
part in, ‘sit-down’ demonstrations; Slmttlesworth promised 
to get them out of jail.

The appellant’s argument on this point deliberately 
evades the effect of the word “incite” in the city ordinance, 
and deals solely with the joint responsibility of an aider 
and abetter. It is sufficient to answer this argument by a 
quotation from Jowitt’s Dictionary of English Law, p. 953:

“Everyone who incites any person to commit a crime 
is guilty of a common law misdemeanor, even though 
the crime is not committed. If the crime is actually 
committed, he is an accessory before the fact in the 
case of felony, and equally guilty, in the case of treason 
or misdemeanor, with the person who commits the 
crime.”

A sit-down demonstration being a form of trespass after 
warning, denotes a violation of both State law and especially 
of § 1436 of the City Code, supra.

There is no question of the restriction of any right of 
free speech or other assimilated right derived from the 
Fourteenth Amendment, since the appellant counseled the 
college students not merely to ask service in a restaurant, 
but urged, convinced and arranged for them to remain on 
the premises presumably for an indefinite period of time. 
There is a great deal of analogy to the sit-down strikes in 
the automobile industry referred to in National Labor Rela­
tions Board v. Fansteel Metallurgical Corp., 306 U. S. 240.

As presented by the appellant’s assignments of error and 
brief, the judgment below is due to be

Affirmed.



3a

Order o f  Affirm ance in  Slm ttlesworth Case

T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS 
October Torm, 1960-61 

6 Div. 802
— ------------------------------------------— -----------------------------------------------------------------

F. L. Shuttlesworth

---V.---

City of B irmingham

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate F iled

January 26,1961 • i"
T ranscript F iled

April 18,1961
Come the parties by attorneys, and argue and submit this 

cause for decision.
May 30,1961

Come the parties by attorneys, and the record and matters 
therein assigned for errors being submitted on briefs and 
duly  examined and understood by the court, it is considered 
th a t  in  the record and proceedings of the Circuit Court there 
is  no error. It is therefore considered that the judgment of 
th e  Circuit Court be in all things affirmed. It is also con­
s id e red  that the appellant pay the costs of appeal of this 
co u rt an d  o f the Circuit Court.



4a

Order Denying Application for Rehearing 
in Shuttlesworth Case

T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 802
■... . i ......... - ............................ . ........ . " .....

F. L. Shuttlesworth

—v,—

City of B irmingham

Appeal from Jefferson Circuit Court 

June 14,1961
Now comes appellant, in the above styled cause, and re­

spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

Arthur D. Shores 
Orzell B illingsley, J r. 
P eter A. H ail 
Oscar W. Adams, J r.
J. R ichmond P earson

Attorneys for Appellant

June 20,1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Cates, Judge.



5a

Order Denying Application for Rehearing in 
Shuttlesworth Case

June 20,1961

On R ehearing

Cates, Judge:
The application for rehearing in this case is supported 

by a brief which contains two propositions of law, both of 
which are predicated on the appellant’s having been con­
victed under § 1436 of the General City Code of Birming­
ham.

This appellant was convicted of inciting others to violate 
§ 1436. The propositions accordingly have no bearing on 
the facts.

Application Overruled.



6a

Order of Filing in Shuttlesworth Case

S ixth Division 
No. 764

Ex P akte F. L. Shuttlesworth

IN THE SUPREME COURT OF ALABAMA

——-       — ------- ■■
F. L. Shuttlesworth

City of Birmingham

Appellant

Appellee

Arthur D. Shores 
P eter A. H all 
Orzell B illingsley, J r.
J, R ichmond P earson 
Oscar W. Adams, J r.

Attorneys for Appellant

July 5,1961
Submitted on Briefs

September 25,1961
Writ Denied: No Opinion

October 4,1961
Application for R ehearing F iled 

Application for R ehearing Overruled

November 16,1961

i



7a

O rder D enying P etition  for W rit o f  Certiorari to 
the Court o f  Appeals in Shuttlesw orth Case

THE SUPREME COURT OP ALABAMA 
Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 
(Lawson’s Division Sitting)

Ex Parte:

6th Div. 764

------— — —

F. L. Shuttlesworth,
Petitioner.

P etition for W rit of Certiorari to the Court of Appeals

(Re: F. L. Shuttlesworth v. City of B irmingham) 
Jefferson Circuit Court

It is hereby ordered that the application for rehearing 
filed on October 4, 1961, he and the same is hereby over­
ruled.

L i v i n g s t o n ,  C.J., L awson, Stakely and Merrill, JJ., 
concur.



8a

Opinion of Price, Presiding Judge in Billups Case 

May 30,1961
T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795
... ,   -  —   n a ^ jgw-   ------------ —  — ..

Charles Billups 

— V / —

City of B irmingham 
—............ ...... ..............-......... —-------

Appeal from Jefferson Circuit Court 
P rice, Judge:

This is a companion case to that of F. L. Shuttlesworth 
v. City of Birmingham, 6 Div. 802.

The facts set out in the Shuttlesworth ease are adopted 
as the facts of this case, with this additional statement: 
“On March 30, 1960, Rev. Billups went to Daniel Payne 
College in a car, where he picked up one James Albert 
Davis, a student, and carried him to the home of Rev. F. L. 
Shuttlesworth, where several people had gathered, among 
them Rev. Shuttlesworth, his wife, and several other stu­
dents from Daniel Payne College. Rev. Billups was also 
at said meeting.” Under this testimony the jury was fully 
justified in finding that this defendant was part and parcel 
of the entire scheme.

On the authority of Shuttlesworth v. City of Birming­
ham, supra, the judgment is due to be, and hereby is, af­
firmed.

Affirmed.



9a

Opinion in Billups Case

T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795

— —■  ---------------------------------..........................- .................................. ...........

Charles B illups

—v.—
, City of B irmingham

-------------------- ------ -----—— --------------------- ------------

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate F iled

January 26,1961 
T ranscript F iled

April 18,1961
Come the parties by attorneys, and argue and submit 

this cause for decision.

May 30,1961
Come the parties by attorneys, and the record and mat­

ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that 
the judgment of the Circuit Court be in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.



10a

O rder D enying A pplication fo r  R ehearing  
in  B illups Case

T he State of Alabama—J udicial Department

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795
_______ _____ _—------—flggS®--------------- —------ ----- —

Charles B illups 

—v.—
City of B irmingham

Appeal from Jefferson Circuit Court 

June 14,1961
Now comes appellant, in the above styled cause, and re­

spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on, to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

Arthur D. Shores 
Orzell B illingsley, J r. 
P eter A. H all 
Oscar W. A dams, J r.
J. R ichmond P earson

Attorneys for Appellant

June 20,1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.

P er Curiam.



11a

Order of Filing in Billups Case

S ixth Division 

No. 763

Ex P arte: Charles B illups

IN THE SUPREME COURT OP ALABAMA

.................... ............................. - ........ ----------------------------------------------------

Charles B illups
Appellant

—vs.—

City of B irmingham
Appellee

— „—  -------------------------------------------------------— -—  ----- —

Arthur D. Shores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. Adams 
J. R ichmond P earson

Attorneys for Appellant.

July 5,1961,—Submitted on Briefs
Sept. 25,1961,—Writ denied: No opinion
Oct. 4,1961,—Application for Rehearing filed
Nov. 16,1961,—Application for Rehearing Overruled



12a

Order Denying Petition for Writ of Certiorari to 
the Court of Appeals in Billups Case

THE SUPREME COURT OF ALABAMA 
Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 
(Lawson’s Division Sitting)

6th Div. 763 

—----------------- ------------

Ex Parte:
Charles B illups,

Petitioner

P etition for W rit of Certiorari to the Court of Appeals

(Re: Charles B illups v. City of B irmingham) 
Jefferson Circuit Court

I t is hereby ordered that the application for rehearing 
filed on October 4, 1961, be and the same is hereby over­
ruled.

L ivingston, C.J., L awson, Stakely and Merrill, J J 
concur.

I



13a

E x tra c ts  F r o m  T r a n s c r ip t  o f  P ro c e e d in g s *

“Q. Mr. [detective] Pierce, were you present in the 
City’s Recorder’s Court, the Honorable William Con­
way presiding, on the evening of April 1,1960 at which 
time Rev. F. L. Shuttlesworth, or F. L. Shuttlesworth, 
wras on trial for violation of a City Ordinance?

“A. Yes, sir, I was there.
“Q. On that occasion did a James Gober make any 

statement under oath and in the presence of the de­
fendant Shuttlesworth, in the presence and hearing 
of the defendant Shuttlesworth, and in the presence 
and hearing of his counsel on that occasion?

“A. Yes sir, he did” (R. 17-18).
# # «= # #

“The Court: May I inquire whether the witness 
heard James Gober in the presence of defendant Shut­
tlesworth say anything about where he had been the 
afternoon before or two days before, whether it was 
the 30th or 31st or the 1st of April” (R. 21)!

#  *  * • *

“A. I  heard him testify that he was a student at 
Daniel Payne College” (R. 21).

«  *  *  ' *  #

“Q. Did he say where that place was on March 30th 
he went (R. 25) ?

“A. He said he went to Rev. Shuttlesworth’s house.
“Q. Did he make any remarks as to who was present 

when he arrived at Rev. Shuttlesworth’s house?

* This constitutes all of the testimony introduced in evidence 
except for material which is repetitive or introductory.



14a

Extracts From Transcript of Proceedings

“A. He said there were several people present. He 
named Rev. Shuttlesworth and the Rev. Billups. Said 

''"they were there.
“Q. Did he mention that either Rev. Shuttlesworth 

or Rev. Billups made any statement there on that 
occasion?”

#  # #  #  *

“A. He testified that the sit-down demonstrations 
was discussed at the meeting.

“Q. Did he state whether or not Rev. Shuttlesworth 
participated in that discussion of the sit down demon­
stration?

“A. He testified the meeting was in the living room 
of Rev. Shuttlesworth’s house and that Rev. Shuttles­
worth participated in the discussion about the sit-down 
demonstrations” (R. 25-26).

* * * * *
“Q. Did the witness say that Shuttlesworth sought 

volunteers for this demonstration, this sit in demon­
stration?”

* * * * *
“A. He testified that Rev. Shuttlesworth asked for 

volunteers to participate in the sit-down demonstra­
tions (R. 26).

“Q. Did I understand you correct, Mr. Pierce, to say 
that he stated Rev. Billups was there at this meeting 
also?”

• * * * *

“A. He stated that Rev. Billups was there in the 
meeting (R. 27).

“Q. Did he make any reference to any list being 
made at this meeting held at Rev. Shuttlesworth’s 
house?

“A. He did.”
• • • t  •

I



15a

Extracts From Transcript of Proceedings

“A. He testified that there was a list made but he 
didn’t know who made the list.”

*  *  #  * *

“Q. I will ask you, Mr.. Pierce, if on this same evening 
of April, 1960 in the presence and hearing of Rev. 
Shuttlesworth and Rev. Billups if James Albert Davis, 
while under oath, made any statements concerning this 
meeting held at Rev. Shuttles worth’s house” (R. 28) ® 

* * * * *
“A. He did.
“Q. Will you tell the Court what, if anything, he 

said on this occasion that took place at the house of 
Rev. Shuttlesworth at this hearing or discussion where­
in both Rev. Shuttlesworth and Rev. Billups were 
present.”

* * * * *
“A. He testified that Rev. Billups came to his school, 

Daniel Payne College, in a car and carried him to 
Rev. Shuttlesworth’s house. He further testified that 
when he arrived there there were several people there, 
among which wras Rev. Shuttlesworth and Rev. Shut­
tlesworth’s wife and a number of other students from 
Daniel Payne College. He testified that in response to 
Rev. Shuttlesworth asking for volunteers to participate 
in the sit-down strikes that he volunteered to go to 
Pizitz at 10:30 and take part in the sit-down demon­
strations. He further testified that a list was made 
but he didn’t know who made the list. He thought the 
list was compiled by—” (R. 28-29).

•  *  *  *  *

“A. He said he didn’t know or wasn’t sure who made 
the list and he testified that Rev. Shuttlesworth didn’t 
say that he would furnish Counsel but told him or made



16a

Extracts From Transcript of Proceedings

the announcement at that time that he would get them 
out of jail.”

* * * * *
“Q. Do you know it to be a fact that a number of 

boys—or I will put it this way. Do you know it to be 
a fact that James Gober and James Albert Davis did 
participate in sit-down or sit-in demonstrations on the 
day of March 31,1960 (R. 30) ?

“A. Yes sir, they did.
“Q. Do you know of your own knowledge that other 

colored boys on that same date participated in sit-in 
demonstrations in down town stores in the City of 
Birmingham?”

# * * * ’*
“Q. Let me put it this way. Other boys who at­

tended the meeting at Rev. Shuttles worth’s house?” 
* * * * *

“A. Yes” (R. 30).
* * * * *

“Q, Did either Gober or Davis while at that Court 
hearing and under the conditions we have previously 
outlined state that other persons were present—I am 
speaking of in the Court room now—did they state that 
other persons were present who did participate in 
these demonstrations at Rev. Shuttlesworth’s house on 
March 30, 1960?

“A. Yes sir” (R. 31).



F ,  L .  S H U T T L •oivnoi'ii ,
.w  »• v v/ii 1 1 i -C

Petitioners,
f'l-5 A  - 
u i l r u BILLUPS,

v s .
CITY O F  B I R M I N G H A M ,  

Respondent

' BRIEF
On Behalf. of Respondent to Petition for 

Writ of Certiorari.

WATTS E. DAVIS,
WILLIAM G. WALKER,
EARL McBEE,

600 City Hall Building, 
Birmingham, Alabama, 

A t t o r n e y s  f o r  R e s p o n d e n t .



INDEX.

Page
Statement in opposition to question presented for re­

view ...........................................................................  1
Statement in opposition to constitutional and statutory 

i provisions involved ................................    3
Statement in opposition to petitioners’ statement of. 

the case ....................................  3
Argument:

Re: Lack of jurisdiction of the Court .....................  4
Re: Constitutional and statutory provisions involved •">
Re: Question presented ............................................. 8
Re: Petitioners’ reasons for granting the w r i t .......  16

Certificate of service ..................................................  19

Cases Cited.

Allen-Bradley Local, etc., v. Wisconsin Employment 
Relations Board, 315 U. S. 740, at page 746, 62 
S. Ct. 820, at page 824, 86 L. Ed. 1154 ................. . 6

Browder v. Gayle, 142 F. Supp. 707 ........................... If
Bullock v. U. S., 265 F. 2d 683, cert, denied 79 S. Ct. 

1294, 1452, 360 U. S. 909, 932, 3 L. Ed. 2d 1260, re­
hearing denied 80 S. Ct. 46, 361 U. S. 855, 4 L. Ed.
2d 95 .........................................................................  3'

Crane v. Pearson, 26 Ala. App. 571, 163 So. 821...........  6
Davis v. State, 36 Ala. App. 573, 62 So. 2d 224 ......... 11
Dudley Brothers Lumber Company v. Long, 109 So. 2d 

684, 268 Ala. 565 .....................................................  15



IX

Garner v. State of Louisiana, 82 S. Ct. (1961) .7, 8,10,15,18
Gibson v. Mississippi, 16 S. Ct. 904, 162 IT. S. 565, 40 

L. Ed. 1075 ................................................................  7
Hollo v. Brooks, 209 Ala. 486, 96 So. 341 ................  6
Jones v. State, 174 Ala. 53, 57 So. 31, 3 2 ...................  11
Local No. 8-6, Oil, Chemical and Atomic Workers In­

ternational Union, AFL-CIO v. Missouri, 80 S. Ct.
391, 361 U. S. 363, 4 L. Ed. 2d 373 ........................... 6

Martin v. Strothers, 319 U. S. 147, 63 S. Ct. 862, 87
L. Ed. 1313 .......................................................  17

McNulty v. California, 13 S. Ct. 959, 149 IT. S. 645, 37 
L. Ed. 882 ................................................................  6

National Labor Relations Board v. Fanstcel Metal­
lurgical Corp., 306 IT. S. 240 .................................... 10,14

Ohio Bell Telephone Co. v. Public Utilities Commis­
sion, 301 U. S. 292, 302, 57 S. Ct. 724, 729, 81 U. Ed.
1093 ...........................................................................  7>8

O’Neil v. Vermont, 12 S. Ct. 693, 144 U. S. 323, 36 
L. Ed. 450 ..............................................................  6,7

Parsons v. State, 33 Ala. App. 309, 33 So. 2d 164 . . . .  11
Pruett v. State, 33 Ala. App. 491, 35 So. 2d 115.......  11
Schenck v. United States, 249 U. S. 47 ................... 16,18
Swinea v. Florence, 28 Ala. App. 332, 183 So. 686 ---- 6
Thompson v. City of Louisville, 80 S. Ct. 624, 625

(1960) .......................................................................13>15
Thorington v. Montgomery, 13 S. Ct. 394, 147 U. S.

490, 37 L. Ed. 252 ....................................................  6
Williams v. Howard Johnson, 268 F. 2d 845 ............  17

Statutes and Rules Cited.

Alabama Supreme Court Rule 1, Code of Alabama 
(1940), Title 7, Appendix .................. ....................



ill

City Code of Birmingham (1944):
Section 369 ............................................................. 3,5,13
Section 824 ...................................   10,11,15
Section 1436 ............................................................10,11

Code of Alabama (1940), Title 7, Section 225 .........  7
Code of Alabama (1940), Title 14, Section 1 4 ............ 11
Supreme Court Buie 21 (1), 28 U. S. C, A...................  4
Supreme Court Buie 24 (2), 28 U. S. C. A...................  5
Supreme Court Buie 33 (1), 28 U. S. C. A . ................. 4,5

i



O C TO B ER  T ER M , 1961,

No, 721.

F. L. S H U T T L E S W O R T H  and CHARLES B ILL U P S ,
Petitioners,

vs,
CITY OF BIRMINGHAM,

Respondent,

BRIEF
On B eh a lf of R esponden t to  P e titio n  fo r 

W r i t  of C ertio ra ri.

STATEMENT IN OPPOSITION TO QUESTION 
PRESENTED FOR REVIEW.

Petitioners present a single question for the review of 
this Court (p. 2).*

* Page references contained herein and preceded by the letter 
“p” designate pages in petitioners’ Petitions for Writ of Certiorari.

Page references contained herein and preceded by the letter “R” 
refer to pages in the Records of the proceedings below, which Rec­
ords have common page numbers.



This question is predicated upon the supposition that 
“ Alabama has convicted petitioners” of inciting or aid­
ing or abetting another to go or remain on the premises 
of another after being warned not to do so.

Petitioners then propose for review by the Court the 
question of whether, in convicting and sentencing the pe­
titioners, “ has Alabama denied liberty, including free 
speech, secured by the due process clause of the Four­
teenth Amendment?”

The State of Alabama is not a named party in the case, 
and so far as City of Birmingham, the respondent named 
in this cause, is aware, no effort has been exerted at any 
time to make the State of Alabama a party. Since “ Ala­
bama” was not a party to the case below, and is not a 
named party before this Court, the sole question presented 
here for review seems entirely and completely moot and 
ungermane, leaving thereby no question related to any 
events taking place in the courts below for review by this 
Court. The case below was a quasi-criminal proceeding 
wherein the City of Birmingham sought to enforce one of 
its local ordinances.

Petitioners take occasion to also predicate their ques­
tion presented for review (p. 2) upon the hypothesis that 
“ a Birmingham ordinance requires racial segregation in 
restaurants.”

The petitioners’ reference to such an alleged ordinance 
is mentioned here before this Court for the very first time 
since the initial filing of the complaint by respondent in 
the county circuit court below, and is not an appropriate 
matter to be considered here under a petition seeking writ 
of certiorari.



STATEMENT IN OPPOSITION TO CONSTITUTIONAL 
AND STATUTORY PROVISIONS INVOLVED.

Petitioners contend that a section 369 of the 1944 Gen­
eral Code of City of Birmingham is one of three ordinances 
involved in this proceeding.

As mentioned above, this alleged ordinance has been 
injected into this case for its first and only time in the 
petition for writ now before this Court, and is not a proper 
subject for consideration by the Court. The petition for 
writ of certiorari should seek only a review of what has 
transpired below and is not properly an arena for intro­
ducing new defenses which were not exhausted in the state 
courts.

STATEMENT IN OPPOSITION TO PETITIONERS’ 
STATEMENT OF THE CASE.

Respondent wishes to supplement petitioners’ statement 
of the case by pointing out to the Court additional perti­
nent testimony which, though brief, is not in petitionei’s’ 
statement:

“ . . . Rev. Billups came to his school, Daniel Payne 
College, in a car and carried him (Davis) to Rev. 
Shuttlesworth’s house” (R, 28).

The record further shows “ that in response to Rev. 
Shuttlesworth asking for volunteers to participate in the 
sit down strikes that he (Davis) volunteered to go to 
Pizitz at 10:30 and take part in the sit down demonstra­
tions” (R, 29).

As noted by petitioners, Billups was present at the meet­
ing and others in attendance at the meeting at Rev. Shut- 
tlesworth’s house participated in sit down demonstrations 
the day following the meeting (p. 4).



— 4 —

ARGUMENT.

Re: Lack of Jurisdiction of the Court.
Respondent insists the Court is without jurisdiction to 

entertain the “ petition for writ of certiorari” in this 
cause, for that the petition was not served upon either of 
the counsel of record for respondent, namely, Watts E. 
Davis or Bill Walker, later referred to as William C. 
Walker, whose names clearly appear upon the face of the 
title pages appearing in each of the respective records now 
before the Court in this cause as the only counsel of 
record.

These two cases below, before the Alabama Court of Ap­
peals, are reported respectively in 134 So. 2d 213 and 134 
So. 2d 215; and, before the Supreme Court of Alabama, in 
134 So. 2d 214 and 134 So. 2d 215. Each of the four re­
ported cases show “ Watts E. Davis and William C. Walker 
for Appellee” .

The proof of service, Form 75 (8-61-10M), as supplied 
by the Clerk and subsequently filed with the Clerk of this 
Court, demonstrates clearly that notice of the filing of the 
petition, the record and proceedings and opinion of the 
Court of Appeals of Alabama and of the Supreme Court 
of Alabama, was served upon “ Hon. MacDonald Gallion, 
Mr. James M. Breckenridge” . Service of the notice, which 
is required by Supreme Court Rule 21 (1), 28 U. S. C. A.,1 
to be made as required by Supreme Court Rule 33 (1), 28 
U. S. 0. A.,2 was attempted to be accomplished by use of

1 The pertinent provision of Supreme Court Rule 21 (1) reads, 
“Review on writ of certiorari shall be sought by filing with the 
clerk, with proof of service as required by Rule 33. forty printed 
copies of a petition, . . ."

2 The pertinent provision of Supreme Court Rule 33 reads, 
“Whenever any pleading, motion, notice, brief or other document is 
required by these rules to be served, such service may be made per-

<



— 5—-

the mail. Supreme Court Rule 33 (1), 28 U. S. C. A., re­
quires that service by mail shall be addressed to counsel
of record (emphasis supplied) at his postoffice address, 
which, as shown supra, was not done in this case.

It is your respondent’s position that the petitioners’ 
failure to comply with the reasonable rules of this Court 
in the above regard, whether done through carelessness 
or indifference to the rules of this Court, leaves the re­
spondent without notice of the proceedings pending in this 
cause, as required by law, and that the Court is without 
jurisdiction to proceed without the necessary parties to 
the writ before the Court. The petition for writ seeking 
certiorari should therefore be dismissed or denied.

The rules of this Court, Supreme Court Rule 24 (2),:i 
28 II. S. C. A., do not provide for a separate motion to dis­
miss a petition for writ of certiorari, and absent the rem­
edy of any such motion, respondent prays that nothing 
contained in its reply brief shall be considered as a waiver 
of its objection presented here to the jurisdiction of the 
Court.

ARGUMENT.

Re: Constitutional and Statutory Provisions Involved.
It is contended by petitioners that “ Section 369 (1944)” 

of the respondent’s city code is involved in the case now 
before the Court.

sonally or by mail on each adverse party. If personal, it shall con­
sist of delivery, at the office of counsel of record, to counsel or a 
clerk therein. If by mail, it shall consist of depositing the same 
in a United States post office or mail box, with first class postage 
prepaid, addressed to counsel of record at his post office address

:i “No motion by a respondent to dismiss a petition for writ of 
certiorari will be received. Objections to the jurisdiction of the 
court to grant writs of certiorari may be included :n briefs in opposi­
tion to petitions therefor.”



—  6 —

Petitioners contend that the ordinance requires the sepa­
ration of white and colored persons in eating establish­
ments.

Assuming such to he true, the propriety of suggesting 
the ordinance for the first time in this Court is completely 
out of harmony with past decisions of this Court. In the 
case of Local No. 8-6, Oil, Chemical and Atomic Workers 
International Union, AFL-CIO v. Missouri, 80 S. Ct. 391, 
361 U. S. 363, 4 L. Ed. 2d 373, this Court said, “ Constitu­
tional questions will not be dealt with abstractly. * 
They will be dealt with only as they are appropriately 
raised upon a record before us. * * * Nor will we assume 
in advance that a State will so construe its law as to bring 
it into conflict with the federal Constitution or an act of 
Congress.” The foregoing quote was adopted from the 
earlier case decided by this Court in Allen-Bradley Local, 
etc. v. Wisconsin Employment Relations Board, 315 U. S. 
740, at page 746, 62 S. Ct. 820, at page 824, 86 L. Ed. 1154.

It has been stated under Alabama Supreme Court Rule 1, 
Code of Alabama (1940), Title 7, Appendix, in assigning 
error on appeal, “ it shall be sufficient to state concisely, 
in writing, in what the error consists” .

It has been uniformly held under Alabama Supreme 
Court decisions that “ no question is reserved for decision 
which is not embraced in a due assignment of error”. 
Holle v. Brooks, 209 Ala. 486, 96 So. 341; Swinea v. Flor­
ence, 28 Ala. App. 332, 183 So. 686; Crane v. Pearson, 26 
Ala. App. 571, 163 So. 821.

This Court has many times repeated its established 
doctrine that, “ A decision of a state court resting on 
grounds of state procedure does not present a federal ques­
tion.” Thorington v. Montgomery, 13 S. Ct. 394, 147 U. S. 
490, 37 L. Ed. 252; McNulty v. California, 13 S. Ct. 959, 
349 IT. S. 645, 37 L. Ed. 882; O’Neil v. Vermont, 12 S. Ct.

i



693, 144 U. S. 323, 36 L. Ed. 450; Gibson v. Mississippi, 16 
S. Ct. 904, 162 U. S. 565, 40 L. Ed. 1075,

The records before this Court clearly show that peti­
tioners have never placed before the state courts the mat­
ter of any such ordinance requiring separation of the 
races although lengthy and detailed pleadings were inter­
spersed throughout all of the student sit-in cases (Gober 
et al., now here in No. 694), as well as the instant case.

At best, as argued in the Gober case, the question of 
judicial notice by the court below might conceivably find 
its way into the controversy.

Bearing in mind that judicial notice is a rule of evidence 
rather than a rule of pleading, the suggested ordinance, 
to have served some defensive purpose (see Code of Ala­
bama (1940), Title 7, Section 225), would of necessity have 
had to be incorporated into a plea or answer to the com­
plaint. If then, after the supposed ordinance was properly 
made an issue in the trial below petitioners sought judi­
cial notice by the Court, rules of evidence making it un­
necessary to prove by evidence the existence of such an 
ordinance would have been entirely applicable. The record 
before the Court clearly demonstrates, of course, that pe­
titioners did not place the question of such ordinance be­
fore the lower court, nor was any assignment of error di­
rected to the proposition before the state appellate court.

This question is not a new one for this Court. In the 
recent case of Garner v. State of Louisiana, 82 S. Ct. 
(1961), Mr. Chief Justice Warren, in delivering this 
Court’s opinion, stated, “ There is nothing in the records 
to indicate that the trial judge did in fact take judicial 
notice of anything. To extend the doctrine of judicial 
notice to the length pressed by respondent * would be 
‘to turn the doctrine into a pretext for dispensing with a 
trial’ ” , citing Ohio Bell Telephone Co. v. Public Utilities



Commission, 301 U. S. 292, 302, 57 S, Ct. 724, 729, 81 L. Ed. 
1093. The foregoing opinion further recited the inherent 
danger of a court taking upon itself the prerogative of 
unsolicited judicial notice in the absence of inserting same 
into the record by saying a party, “ * * * is deprived of 
an opportunity to challenge the deductions drawn from 
such notice or to dispute the notoriety or truth of the facts 
allegedly relied upon.”

In light of the Garner opinion, supra, and in light of 
the fact that the record discloses nowhere that the court 
below, either upon solicitation of counsel or otherwise, 
took or refused to take judicial notice of any such ordi­
nance, and further, that no assignment of error before 
the state appellate court makes any reference whatever 
to the existence of such an ordinance, thereby affording 
the state appellate court an opportunity to rule on any 
question related to the ordinance, your respondent re­
spectfully urges that no constitutional or other questions 
dependent upon such an ordinance are properly present­
able before this Court for review.

ARGUMENT.

Re: Question Presented.
Petitioners submit one question for review (p. 2) by 

this Court.
The question is predicated upon the assumption of fact 

that “ Alabama has convicted petitioners” for inciting, 
aiding or abetting another person to remain upon the 
premises of another after being warned not to do so; and 
upon the further assumption of fact that there was no 
evidence that either of the petitioners “ persuaded anyone 
to violate any law” (ibid).

Following the foregoing assumptions of fact, petitioners 
present for review the following question:



— 9 —

“ In convicting and sentencing petitioners respec­
tively to 180 and 30 days hard labor, plus fines, has 
Alabama denied liberty, including freedom of speech, 
secured by the due process clause of the Fourteenth 
Amendment?”

The City of Birmingham was the plaintiff in the trial 
court below (R. 2). The City handled the prosecution of 
the petitioners in the trial court and represented the city 
in the appellate courts of Alabama. So far as the record 
discloses, and so far as the respondent is aware, the State 
of Alabama has never been a party to any phase of this 
proceeding nor has the State of Alabama at any time 
interceded in the matter in any manner disclosed by the 
record.‘it would therefore appear that the only question 
presented to this Court for review is a moot one.

As to the proposition that there was “ no evidence” 
(p. 2) to support the conviction of petitioners, your re­
spondent is unwilling to concede this to be true.

The testimony offered by respondents in the trial below 
was neither disputed by petitioners nor was same sub­
jected to any cross-examination (R. 31).

Petitioners present extracts of the testimony below in 
Appendix to their petition (pp. 13a-lfia). In brief, the 
evidence is shown to be as follows: A student (Gober) 
went to Rev. Shuttlesworth’s house on March 30th (p. 
13a); a student (Davis) went to the house with Rev. 
Billups, who came to his school in a car and carried him 
there (p. 15a); Rev. Shuttlesworth and Rev. Billups were 
both present at Rev. Shuttlesworth’s house (p. 14a); that 
there was a meeting in the living room and that Rev. 
Shuttlesworth participated in the discussion about sit- 
down demonstrations and Rev. Billups was at this meet­
ing also (ibid); that when the student (Davis) arrived 
at the meeting there were several people there including



—  10

Rev. Shuttlesworth and a number of other students (p. 
15a); Rev. Shuttlesworth asked for volunteers to par­
ticipate in the sit-down strikes (ibid); a student (Davis) 
volunteered to go to Pizitz (a department store in the 
City of Birmingham) at 10:30 and take part in the sit- 
down demonstrations (ibid); that Rev. Shuttlesworth an­
nounced at that time that he would get them out of jail 
(pp. 15a, 16a); both James Albert Davis and James Gober 
did participate in sit-down demonstrations on March 31, 
1960, as well as other students who attended the meeting 
at Rev. Shuttlesworth’s house on March 30, 1960 (p. 16a).

The foregoing is the evidence contained in the record 
before the Alabama Court of Appeals, and in the petition 
under consideration.

The opinion of the state court of appeals (pp. la, 2a) 
stated (p. 2a), “ A sit-down demonstration being a form 
of trespass after warning, denotes a violation of both 
State law and especially of Section 1436 of the City Code, 
supra. * # * There is a great deal of analogy to the sit- 
down strikes in the automobile industry referred to in 
National Labor Relations Board v. Fansteel Metallurgical 
Corp., 306 XL S. 240.”

Mr. Chief Justice Warren, in the Court’s opinion in 
Garner v. State of Louisiana, 82 S. Ct. 248, 253 (1961), 
stated, “ We of course are bound by a state’s interpreta­
tion of its own statute and will not substitute our judg­
ment for that of the state’s when it becomes necessary to 
analyze the evidence for the purpose of determining 
whether that evidence supports the findings of a state 
court.”

The gravamen of the offense (City Code, Section 824) 
charged against petitioners was that petitioners incited, 
aided or abetted another to violate the city law or ordi­
nance. The law or ordinance which petitioners were



11 —

charged with inciting another to violate was Section 143(5 
of the City Code, which latter section makes it unlawful 
to remain on the premises of another after warning not 
to do so.

The evident objective of Section 824 of the City Code 
was the curtailment of City law violations by making it 
unlawful to incite or assist others to violate city laws.

While there has been no occasion for the Alabama ap­
pellate courts to interpret Section S24 of the City’s Code, 
a very similar state statute, Section 14 of Title 14, Code 
of Alabama, 1940, contains an aiding and abetting statute 
very similar to the city’s law, which says in part as fol­
lows: “ * * * And all persons concerned in the commission 
of a crime, whether they directly commit the act consti­
tuting the offense, or aid or abet (emphasis supplied) its 
commission, though not present, must hereafter be in­
dicted, tried and punished as principals, as in the case of 
misdemeanors.”

The foregoing state statute has been construed by the 
state courts on many occasions. Davis v. State, 36 Ala. 
App. 573, 62 So. 2d 224, states, “ The words ‘aid and 
abet’ comprehend all assistance rendered by acts or words 
of encouragement or support. . . . Nor is it necessary to 
show prearrangement to do the specific wrong complained 
of.” (Emphasis supplied.)

In Pruett v. State, 33 Ala. App. 491, 35 So. 2d 115, the 
court said, “ Aid and abet comprehend all assistance ren­
dered by acts or words of encouragement * # #”, citing 
Jones v. State, 174 Ala. 53, 57 So. 31, 32.

Alabama has further ruled, “ The participation in a 
crime and the community of purpose of the perpetrators 
need not be proved by direct or positive testimony, but 
may be inferred from circumstantial evidence.” Parsons v. 
State, 33 Ala. App. 309, 33 So. 2d 164.



—  12

While the state statute differs from the city law pri­
marily in the fact that the word “ incite” is not found in 
the state statute, the net effect of the inclusion of the 
word “ incite” in the city law could do no less than 
strengthen and enlarge the scope of the city’s law.

The salient features of the state decisions, supra, are 
that acts or words of encouragement are sufficient to bring 
an offender within the scope of the statute; that it is not 
necessary to show prearrangement to do the specific wrong 
complained of; and, that the community of purpose may he 
inferred from circumstantial evidence.

As to whether there is any evidence in the record to dis­
close that petitioners did incite or aid others to violate a 
city law, the petition admits in a summary of the evidence 
(p. 4), and in appendix (p. 14a), that a meeting was held 
at the home of Rev. Shuttlesworth; that Rev. Billups had 
driven one student to the meeting and was present during 
the meeting (p. 15a), at which meeting other students were 
in attendance, and that after one student volunteered to 
go to Pizit7. at a certain hour, a list was made (ibid). The 
sit-downs were discussed at the meeting (p. 14a); Rev. 
Shuttlesworth made the announcement “ that he would get 
them out of jail” (p. 16a), and that other students at the 
meeting participated in the sit-downs (ibid).

It is most difficult in view of the foregoing evidence to 
agree with petitioners’ predicate of fact, upon which they 
base their one question for review by this Court (p. 2), 
namely, that there was “ no evidence” upon which to rest 
the convictions of the petitioners in the trial court below. 
Every conceivable element of the offense of inciting the 
students to go upon the premises of another and partici­
pate in sit-downs is established by the evidence as admit­
ted in the petition (supra) and as shown in the record. 
The sit-downs were prearranged, volunteers were sought, 
and the volunteers were promised they would be released

t



1.3

from jail. No other rational inference could be drawn from 
the promise of release from jail than that the volunteers 
were to continue their sit-downs on the premises of others 
until they were arrested for trespass, for under the re­
spondent’s general City Code there was no other punitive 
provision in the code under which they could he arrested 
and jailed. Petitioners assert the respondent has a segre­
gation ordinance, which is copied into their petition as 
Section 369 (144) (p. .3), which has already been discussed 
here at length, which petitioners say requires restaurant 
owners or operators to make certain provisions for sepa­
ration of the races in their eating establishments. Cer­
tainly the students could not have been arrested under 
any such ordinance as this, for, as shown in the petition 
(ibid), it only proposes a burden upon the person who 
“ conducts” the restaurant and imposes no sanction or pen­
alty upon would be customers in the eating establishments. 
There is no evidence in the record that the students were 
boisterous or obtrusive in their conduct so as to create a 
breach of the peace.

The solicitation of Rev. Shuttlesworth for volunteers for 
the sit-downs and the promise to get them out of jail 
(supra) left the state court no alternate but to reason­
ably conclude from the evidence that the sit-down demon­
strators were to trespass and be arrested.

In Thompson v. City of Louisville, 80 S. Ct. 624, 625 
(1960), cited by petitioners, this Court said, “ Decision on 
this question turns not on the sufficiency of the evidence, 
but on whether this conviction rests upon any evidence at 
all.”

In view of the evidence above outlined, the attempt by 
petitioners to parallel the instant case with the Thompson 
case, supra, appears highly incongruous.

It must also bo remembered that the same trial court 
which rendered judgment against these two petitioners had



— 14

before it for consideration and the rendition of judgment, 
ten cases involving trespasses committed by the sit-down 
demonstrators who were counseled by Rev. Shuttlesworth, 
all of whom were sentenced together with these petitioners 
in a common sentencing proceeding (R. 35-39). The ten 
cases (Gober et ah, now here in No. 694), involving tres­
pass after warning, together with the two instant cases, 
all involved common counsel and developed out of near 
identical circumstances occurring in different stores. If, 
indeed, the trial court had no knowledge or concept of the 
meaning of the term “ sit-down demonstration”, after hav­
ing just completed hearing ten cases involving nothing but 
“ sit-down” cases, it would of necessity have to be assumed 
that the trial judge was something more than naive. In 
context with the promised release from jail (pp. 4, 15a, 
16a), there was only one inescapable interpretation which 
the trial court could place upon the term “ sit-down dem­
onstrations” and that was—a device of remaining on an­
other’s premises after being told to leave, as in Fansteel, 
supra.

Not to be overlooked is the matter of how the question 
of the sufficiency of the evidence was raised in the state 
court. Petitioners’ motion to exclude the evidence, ground 
No. 4 (R. 6), in attacking the sufficiency of the evidence, 
alleged as follows:

“ 4. The evidence against the defendant, a Negro, 
in support of the charge of his violation of 824 the 
General City Code of Birmingham of 1944, clearly in­
dicates (emphasis supplied) that those persons al­
leged to have acted as a result of the aiding and abet­
ting of the defendant, had accepted an invitation to 
enter and purchase articles in the various department 
stores in the City of Birmingham, stores open to the 
public, but had not been allowed to obtain food service 
on the same basis as that offered white persons, be-

«



— 15 —

cause of their race or color; and, that in furtherance 
of this racially discriminatory practice of the various 
department stores (emphasis supplied) in the City of 
Birmingham, the defendant was arrested. * * *”

In the foregoing motion to exclude the evidence (R. 6), 
which motion is not reviewable by the state appellate 
court, Dudley Brothers Lumber Company v. Long, 109 
So. 2d 684, 268 Ala. 565, the petitioners themselves have 
interpreted the evidence in the trial below as being in­
clusive of the activities of the demonstrators in the de­
partment stores, in adopting the language (R. 6), “ The 
evidence against the defendant(s), a Negro, in support 
of the charge of violation of 824 the General City Code 
of Birmingham of 1944, clearly indicates (emphasis sup­
plied) that those persons alleged to have acted as a re­
sult of the aiding and abetting of the defendant(s) had 
accepted an invitation to enter and purchase articles in 
the various department stores * * etc., and proceeds 
then to state that because of the discrimination of the 
“ various department stores’’ the defendants were subse­
quently arrested (ibid).

In conclusion, on the subject of whether there was “ any 
evidence’’, Gamer and Thompson, supra, to support the 
state court’s finding of guilt, your respondent strongly 
urges that every element of the offense of violating Section 
824 of the General City Code of Birmingham of 1944 has 
been more than adequately substantiated by the evidence 
presented below as shown in the record and petition. 
To hold that there was no evidence, as contended by 
petitioners, to support the conviction would, as stated by 
Mr. Justice Harlan in Gamer v. State of Louisiana, 82 S. Ct. 
248, 265, “ * * * in effect attribute(s) to the (Louisiana) 
Supreme Court a deliberately unconstitutional decision
* * # y i



— 16 —

ARGUMENT.

Re: Petitioners’ Reasons for Granting the Writ,

Petitioners’ argument concerning reasons for granting 
the writ should, of course, be confined to their “ Question 
Presented” (p. 2) for the review of the Court, the sub­
stance of which is, “ * * * has Alabama denied liberty, 
including freedom of speech, secured by the due process 
clause of the Fourteenth Amendment!”

For very obvious reasons, petitioners have not elabo­
rated upon the rights of property owners as guaranteed 
under the Fifth and Fourteenth Amendments to the Con­
stitution.

Petitioners concede that the doctrine of free speech 
protection has many limitations and cite well known au­
thority in support thereof (p. 7), perhaps the most famous 
of which is Schenck v. United States, 249 U. S. 47. As 
the Court well knows, the defendant in this case was con­
victed for mailing circulars during World War I, which 
circulars were found to be detrimental to this country’s 
war effort. On the circular, among other things, were the 
words, “ Assert Your Eights” , and described arguments 
in support of the war effort “ as coming from cunning 
politicians.” The right of free speech was not upheld by 
this Court because a danger to the substantive rights of 
others was involved.

In the instant cases, petitioners claim they were assert­
ing their rights in seeking volunteers to test the sub­
stantive rights of private property owners, or, as they 
express it, to perform “ sit-down demonstrations” (p. 8), 
which are commonly known to be a sitting upon the 
premises of another and refusing to leave until they 
become trespassers and are arrested. Kev. Shuttles-



17

worth’s promise to free the demonstrators from jail con­
clusively establishes this fact. Attention is also invited 
to this fact as borne out in the ten cases involving the 
demonstrators now here in Gober, et al., before the Court 
under No. 694. The demonstrators in Gober (Parker, It. 
21; West, It. 18) said “ they were not going to leave” ; a 
demonstrator (Gober, R. 39; Davis, R. 40) was quoted as 
saying “ they were instructed to go into the store and sit 
down at a white lunch counter, and that they would 
probably be or would be asked to leave, and not to leave 
but remain there until the police arrested them and took 
them out” ; an assistant store manager (Parker, R, 23; 
West, R. 20) quoted demonstrators as saying, “ We have 
our rights,” when told to leave.

The inciting of this type of demeanor is what petitioners 
refer to as “ constitutionally protected free expression”
(p. 10).

This Court made it clear in Martin v. Struthers, 319 
U. S. 147, 63 S. Ct. 862, 87 L. Ed. 1313, that, “ Tradition­
ally the American law punishes persons who enter onto 
the property of another after having been warned to keep 
off.”

In B ro w d er v. G ayle, 142 F. Supp. 707, it is clearly stated 
that individuals may elect persons with whom they will do 
business unimpaired by the Fourteenth Amendment.

The case of Williams v. Howard Johnson, 268 F. 2d 845, 
states clearly that restaurants not involved in interstate 
commerce are “ at liberty to deal only with such persons 
as it may elect.”

In the ease of B ullock  v. U. S., 265 F. 2d 683; cert, den ied  
79 S. Ct. 1294, 1452, 360 U. S. 909, 932, 3 L. Ed. 2d 1260; 
re h e a r in g  den ied , 80 S. Ct. 46, 361 U. S. 855, 4 L. Ed. 2d 95, 
it was emphasized that, “ The right of free speech is not 
absolute and th is  am en d m en t to  th e  F e d e ra l C o n stitu tio n



— 1 8 -

does not confer the right to persuade others to violate the
law.” (Emphasis supplied.)

The evident intent in the meeting sponsored and par­
ticipated in by Rev. Billups and Rev. Shuttlesworth was 
to determine whether private ownership and control of 
property was to endure in this country or whether the 
power of a large minority political block could overrule 
this traditional heritage of a free enterprise system.

Protection of one’s property under the Fifth and Four­
teenth Amendments are “ substantive” rights and any 
threat to this substantive right presents a “ clear and 
present danger,” Schenck v. United States, supra.

Whatever may or may not be morally right in the use 
of one’s own property, sit-down demonstrations have no 
place there if not consented to by the owner, as stated in 
Garner, supra, in the opinion delivered by Mr. Justice 
Harlan; and whether the act involves racial intolerance, 
prejudice or bias is not of concern under the Fourteenth 
Amendment, where the property is private. See Mr. Jus­
tice Douglas’ concurring opinion in Garner, supra.

In conclusion, and for the foregoing reasons, it is re­
spectfully submitted that the petition for writ of certio­
rari should be denied.

Respectfully submitted,

WATTS E. DAVIS,

WILT JAM C. WALKER,

EARL McBEE,
(100 City Hall Building, 

Birmingham, Alabama, 
Attorneys for Respondent.



SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1961.

F. L. SHUTTLESWORTH and CHARLES 
BILLUPS,

vs.
Petitioners,

"\

> No. 721.

CITY OF BIRMINGHAM,
Respondent. -

Certificate of Service.
I, Earl McBee, one of the Attorneys for Respondent, 

City of Birmingham, and a member of the Bar of The 
Supreme Cj^urt of the United States, hereby certify that 
on the . $ .T. day of March, 1962, I served a copy of Brief 
on behalf of respondent to Petition for Writ of Certiorari, 
in the above styled and numbered cause, on Jack Green­
berg and on Constance Baker Motley, Attorneys for 
Petitioners, by depositing the same in a United States Post 
Office or mail box, with air mail postage prepaid, ad­
dressed to them at their post office address, namely, 10 
Columbus Circle, New York 19, New York; and on the 
following respective Attorneys of Record for Petitioners 
whose addresses are known to Respondent by depositing 
the same in a United States Post Office or mail box, with 
first class postage prepaid, addressed to Arthur D. Shores, 
1527 5th Avenue, North, Birmingham, Alabama; Orzell 
Billingsley, Jr., 1630 4th Avenue, North, Birmingham, 
Alabama; Peter A. Hall, Masonic Temple Building, Bir­
mingham, Alabama; Oscar W. Adams, Jr., 1630 4th 
Avenue, North, Birmingham, Alabama; and J. Richmond 
Pearson, 415 North 16th Street, Birmingham, Alabama.

Earl McBee,
Attorney for Respondent.



I n  t h e

tour! nf % lit !Ub States
October Term, 1961 

No.............

J ames R ichard P eterson, Yvonne J oan E ddy, H elen 
A ngela E vans, David R alph Strawder, H arold J ames 
F owler, F rank G. S mith, R obert Crockett, J ames 
Carter, Doris Delores W right and R ose Marie Collins,

Petitioners,
—v.—

City oe Greenville,
Respondent.

V PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack Greenberg 
Constance Baker Motley 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J . P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia 1, South Carolina

W illie T. Smith
Greenville, South Carolina

Attorneys for Petitioners



TABLE OF CONTENTS
PAGE

Citation to Opinions Below....................................... 1

Jurisdiction ................................................................ 2

Questions Presented .................................................  2

Constitutional and Statutory Provisions Involved .... 3

Statement ...................................................................  4

How the Federal Questions Were Raised and De­
cided Below ..........................................................  9

Reasons for Granting the Writ ...............................  14
I. Petitioners were denied due process of law 

and equal protection of the laws by conviction 
of trespass in refusing to leave white lunch 
counter where their exclusion was required by 
City Ordinance ................................................ 14

II. The decision below conflicts with decisions of 
this Court securing the right of freedom of 
expression under the Fourteenth Amendment 
to the Constitution of the United S tates....... 19
A. The enforcement of the State and City

segregation policy and the interference of 
the police violated petitioners’ right to free­
dom of expression ..................................... 19

B. The convictions deny petitioners’ right to
freedom of expression in that they rest on 
a statute which fails to require proof that 
petitioners were requested to leave by a 
person who had established authority to 
issue such request at the time given.......  23

Conclusion .................................................................  26



11

T able oe Cases

page

Abrams v. United States, 250 U. S. 616................ 19

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) —. 18
Boman v. Birmingham Transit Company, 280 F. 2d

531 (5th Cir. 1960) ................................................ 18
Breard v. Alexandria, 341 U. S. 622 ........................  20
Brown v. Board of Education, 347 U. S. 483 .............  18
Buchanan v. Warley, 245 U. S. 60 ............................  18
Burstyn v. Wilson, 343 U. S. 495 ...............................  25
Burton v. Wilmington Parking Authority, 365 U. S.

715 ........................................................................... 17,18

Chaplinsky v. New Hampshire, 315 U. S. 568 ..........  25
Connally v. General Construction Co., 269 U. S. 385 .. 25
Cooper v. Aaron, 358 U. S. 1 ...................................  22

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
afiE’d 336 U. S. 933 .................................................  17

Freeman v. Retail Clerks Union, Washington Su­
perior Court, 45 Lab. Rel. Ref. Man. 2334 (1959) 22

Garner v. Louisiana, 7 L. ed. 2d 207 ................. 19, 20, 24, 26
Gayle v. Browder, 352 U. S. 903, aff’g 142 F. Supp.

707, 712 (M. D. Ala. 1956)....................................... 18
Guinn v. U. S., 238 U. S. 347 ...................................  17

Holmes v. City of Atlanta, 350 U. S. 879 .................  18

Lambert v. California, 355 U. S. 225 ........................  25
Lane v. Wilson, 307 U. S. 268 ...................................  17
Lanzetta v. New Jersey, 306 U. S. 451..................... 25
Louisiana State University and A & M College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 
358 U. S. 819.......................................................... 17



Ill
PAGE

Marsh v. Alabama, 326 U. S. 501.............................. 21
Martin v. Struthers, 319 U. S. 141............... ............  20
Mayor and City Council of Baltimore v. Dawson,

350 U. 8. 877 ........................... ...............................  18
Morrissette v. U. S., 342 U. S. 246 ............................ 25, 26

N.A.A.C.P. v. Alabama, 357 U. S. 449 ............... ..... 20
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ................................'......................  21
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240........  21

People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 
(1948) .....................................................................  21

Republic Aviation Corp. v. N.L.R.B., 324 U, S. 793 .... 21

Saia v. New York, 334 U. S. 558 ...............................  25
San Diego Bldg. Trades Council v. Garmon, 349 IT. S.

236 ...................    21
Schenck v. United States, 249 U. S. 4 7 ..................... 22
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947),

cert, denied 332 U. S. 851 ....................................... 22
Smith v. California, 361 U. S. 147............................ 23
State Athletic Commission v. Dorsey, 359 U. S. 533 18
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357 (1959) ......... .............  22
State of North Carolina v. Nelson, 118 S. E. 2 d ......  11
Stromberg v. California, 283 U. S. 359 ..................... 19

Terminiello v. Chicago, 337 U. S. 1 ......................... 22
Thompson v. City of Louisville, 362 U. S. 199........  26
Thornhill v. Alabama, 310 U. S. 88............................ 19, 21

United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.
Cir. 1956), reversed on other grounds, 357 U. S. 357 21



IV
PAGE

West Virginia State Board of Education v. Barnette,
319 U. S. 624 ................ ........................................... 19

Wieman v. Updegraff, 344 U. S. 183........................  23
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D. C.

Cir. 1961) ................................................................  18
Williams v. Howard Johnson’s Restaurant, 268 F.

2d 845 (4th Cir. 1959) ..........................................  11,18
Winters v. New York, 333 U. S. 507 ......................... 23, 25

Statutes and Ordinances

A. & J. R. 1955 (49) 85 .......................-..................  16
Code of Greenville, 1953, as amended 1958 Cumula­

tive Supplement, §31-8 ................................3,4,7,11,14
S. C. A. & J. R. 1956 No. 917 ...................................  16
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)

1695 repealing S. C. Const. Art. 11, §5 (1895) ......  16
South Carolina Code Ann. Tit. 58, §§714-720 (1952) 16
South Carolina Code, 1952, §16-388, as amended 1960

(A. & J. R., 1960, R. 896, H. 2135) ........................ 3, 4,13
South Carolina Code

§§21-761 to 779 ........   16
§21-2.....................................................................  16
§21-230(7) ..........................................................  16
§21-238 (1957 Supp.) ......................................... 16
§40-452 (1952) ...................................................  16
§§51-1, 2.1-2.4 (1957 Supp.) ................................ 16
§51-181 ................................................................  16
§5-19 ...................................................................  16

United States Code, §1257(3), Title 2 8 ..................... 2

Other Authorities

Public Welfare Offenses, 33 Columbia L. Rev. 55 
(1933) .....................................................................  25



V

INDEX TO APPENDIX
PAGE

Opinion of the Greenville County Court ................  la

Opinion and Judgment of the Supreme Court of
South Carolina .................     5a

Denial of Eehearing by the Supreme Court of South
Carolina .................................................................  11a



I n  t h e

Bupvmt (Emtrt of tin Imteft States
October Term, 1961 

No.............

J ames R ichard P eterson, Yvonne J oan E ddy, H elen 
A ngela E vans, David Ralph Strawder, H arold J ames 
F owler, F rank G. Smith, R obert Crockett, J ames 
Carter, Doris Delores W right and R ose Marie Collins,

— v .—
Petitioners,

City of Greenville,
Respondent.

PETITION FOR WRIT OF CERTIORARI T O  T H E  
SUPREME COURT O F  SOUTH C A R O LIN A

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on November 10, 1961, 
rehearing of which was denied November 30, 1961.

Citation to O pinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is re­
ported at 122 S. E. 2d 826 (1961) and is set forth in the 
appendix hereto, infra pp. 5a-10a. The opinion of the Green­
ville County Court is unreported and is set forth in the 
appendix hereto, infra pp. la-4a.



2

Jurisd iction

The Judgment of the Supreme Court of South Carolina 
was entered November 10, 1961, infra pp. 5a-10a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on November 30, 1961, infra p. 11a.

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code Section 1257(3), petitioners 
having asserted below, and asserting here, deprivation of 
rights, privileges and immunities secured by the Constitu­
tion of the United States.

Q uestions Presented

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter where the 
store’s policy of excluding Negroes was made pursuant to 
local custom and a segregation Ordinance of the City of 
Greenville.

2. Whether petitioner sit-in demonstrators were denied 
freedom of expression secured by the Fourteenth Amend­
ment when convicted of trespass upon refusal to move from 
a white-only lunch counter when (a) the manager did not 
request arrest or prosecution and was apparently willing 
to endure the controversy without recourse to the criminal 
process and exclusion from the counter was required by a 
City Ordinance commanding segregation in eating facilities, 
and (b) the convictions rest on a statute which fails to re-



3

quire proof that petitioners were requested to leave by a 
person who had established authority to issue such request 
at the time given.

Constitutional and Statutory 
Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case involves Section 16-388, Code of Laws of 
South Carolina, 1952, as amended 1960:

Any person:

(1) Who without legal cause or good excuse enters 
into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or
(2) who, having entered into the dwelling house, place 
of business or on the premises of another person with­
out having been warned within six months not to do so, 
and fails and refuses, without good cause or excuse, 
to leave immediately upon being ordered or requested 
to do so by the person in possession, or his agent or 
representative,
Shall, on conviction, be fined not more than one hun­
dred dollars, or be imprisoned for not more than thirty 
days.

3. This case involves Section 31-8, Code of Greenville, 
1953, as amended by 1958 Cumulative Supplement (E. 56, 
57):

It shall be unlawful for any person owning, manag­
ing or controlling any hotel, restaurant, cafe, eating



4

house, boarding house or similar establishment to fur­
nish meals to white persons and colored persons in the 
same room, or at the same table, or at the same counter; 
provided, however, that meals may be served to white 
persons and colored persons in the same room where 
separate facilities are furnished. Separate facilities 
shall be interpreted to mean:

a) Separate eating utensils and separate dishes 
for the serving of food, all of which shall be distinctly 
marked by some appropriate color scheme or other­
wise;

b) Separate tables, counters or booths;
c) A distance of at least thirty-five feet shall be 

maintained between the area where white and colored 
persons are served;

d) The area referred to in subsection (c) above 
shall not be vacant but shall be occupied by the usual 
display counters and merchandise found in a business 
concern of a similar nature;

e) A separate facility shall be maintained and used 
for the cleaning of eating utensils and dishes fur­
nished the two races.

Statement

Petitioners, ten Negro students, were arrested for staging 
a sit-in demonstration at the lunch counter of the S. H. 
Kress and Company department store on August 9, 1960 
(R. 3), in Greenville, South Carolina, a City which by 
Ordinance requires segregation in eating facilities (R. 56, 
57) and were convicted of trespass in violation of Section 
16-388, Code of Laws of South Carolina, 1952, as amended



5

1960 and sentenced to pay a fine of one hundred dollars 
($100.00) or serve thirty (30) days in jail (E. 54).

After informing the S. H. Kress and Company depart­
ment store in Greenville of their desire to be served at the 
store’s lunch counter and learning that the manager would 
not press charges against them if they sought service (R. 
43), petitioners, at about eleven A.M., seated themselves 
at the lunch counter and requested service (R. 40, 41). 
White persons were seated at the counter at the time (R. 
19, 20, 41). Petitioners were told, “I ’m sorry, we don’t 
serve Negroes” (R. 41).

Also at about eleven A.M., Captain Bramlette of the 
Greenville Police Department received a call to go to the 
Kress store (R. 5). He did not know where the call came 
from (R. 5). He was told that there were colored young 
boys and girls at the lunch counter (R. 9) and he knew that 
the City of Greenville had an Ordinance prohibiting col­
ored and white persons being seated at the same lunch 
counter (R. 9). He arrived at the store with several city 
policemen and found two agents of the South Carolina Law 
Enforcement Department already present at the lunch 
counter (R. 6). He noticed the ten petitioners seated at 
the lunch counter (R. 6) which could accommodate almost 
fifty-nine persons (R. 27). The petitioners were orderly 
and inoffensive in demeanor (R. 12, 25, 26).

In the presence of the police officers the counter lights 
were turned out (R. 19) and G. W. West, manager of 
the store requested “ . . . everybody to leave, that the lunch 
counter was closed” (R. 19). At the trial, petitioners’ coun­
sel was denied permission to ascertain whether this re­
quest followed arrangement or agreement with the Police 
(R. 23, 24, 26). Neither Mr. West, the manager, nor the 
police officers, testified that West identified himself or his 
authority to the petitioners either before or after making



6

this announcement.1 When petitioners made no attempt to 
leave the lunch counter, Captain Bramlette placed them 
under arrest (R. 20).2

Store manager West at no time requested that defen­
dants he arrested (R. 26):

Q. And you at no time requested Captain Bramlette 
and the other officers to place these defendants under 
arrest, did you? A. No, I did not.

Q. That was a matter, I believe, entirely up to the 
law enforcement officers? A. Yes, sir.

White persons were seated at the counter when the an­
nouncement to close was made (R. 20, 33, 34) but no white 
person was arrested (R. 34). As soon as petitioners were 
removed by the police, the lunch counter was reopened 
(R. 24, 34).

West testified that one of the store’s employees called 
the police (R. 23) but when petitioners’ counsel attempted 
to bring out any arrangements or agreements between the 
store and the police, the Court denied permission to pro­
ceed (R. 23-24, 26). But West testified that- he closed the 
lunch counter because of the Greenville City Ordinance 
requiring racial segregation in eating facilities and local 
custom:

1 There is evidence that one of the petitioners, Doris Wright, had 
spoken with the store manager prior to the demonstration (R. 43), 
but the record is without evidence that any of the other petitioners 
were informed or had reason to know that the person who re­
quested them to leave had authority to do so. Doris Wright, more­
over, testified that the request to leave was made by the Police and 
not by manager West who “ . . . was coming from the back at the 
time . . . the arrests were being made” (R. 42, 47).

2 Four other Negro demonstrators were arrested but their cases 
were disposed of by the juvenile authorities (R. 6).



7

Q. Mr. West, why did you order your lunch counter 
closed? A. I t’s contrary to local custom and it’s also 
the Ordinance that has been discussed (E. 25).

On cross examination, Captain Bramlette, the arresting 
officer, evidenced confusion as to whether defendants were 
arrested because they violated Greenville’s Ordinance re­
quiring segregation in eating facilities or the State of South 
Carolina’s trespass statute (E. 16, 17):

Q. Did the manager of Kress’, did he ask you to 
place these defendants under arrest, Captain Bram­
lette? A. He did not.

Q. He did not? A. No.
Q. Then why did you place them under arrest? A. 

Because we have an Ordinance against it.
Q. An Ordinance? A. That’s right.
Q. But you just now testified that you did not have 

the Ordinance in mind when you went over there? 
A. State law in mind when I went up there.

Q. And that isn’t the Ordinance of the City of Green­
ville, is it? A. This supersedes the order for the City 
of Greenville.

Q. In other words, you believe you referred to an 
ordinance, but I believe you had the State statute in 
mind? A. You asked me have I, did I have knowledge 
of the City Ordinance in mind when I went up there 
and I answered I did not have it particularly in my 
mind, I said I had the State Ordinance in my mind.

Q. I see and so far this City Ordinance which re­
quires segregation of the races in restaurants, you at 
no time had it in mind, as you went about answering 
the call to Kress’ and placing these people under ar­
rest? A. In my opinion the state law was passed re­
cently supersedes our City Ordinance.



8

This “State Law” is the trespass statute petitioners were 
charged with violating. Previously, Captain Bramlette had 
testified that he thought the State’s trespass statute pro­
hibited “sit-ins.” He later admitted that the statute did 
not mention “sit-ins” (R. 14).

Kress and Company is a large nationwide chain (R. 21) 
which operates junior department stores (R. 21). The 
Greenville branch has fifteen to twenty departments, sells 
over 10,000 items and is open to the general public (R. 21, 
22). Negroes and whites are invited to purchase and are 
served alike with the exception that Negroes are not served 
at the lunch counter which is reserved for whites (R. 22). 
Kress’s national policy is “to follow local customs” with 
regard to serving Negroes and whites at its lunch counters 
(R. 22, 23).

Petitioners were tried and convicted in the Recorder’s 
Court of Greenville before the City Recorder, sitting with­
out a jury, and sentenced to pay a fine of one hundred 
dollars ($100.00) or serve thirty (30) days in the City jail 
(R. 2, 54).

Petitioners appealed the judgment of Recorder’s Court 
to the Greenville County Court, which Court dismissed the 
appeal on March 17,1961 (R. 57-60).

The Supreme Court of South Carolina entered its judg­
ment, affirming the judgment and sentences below on No­
vember 10, 1961, infra pp. 5a-10a, and denied rehearing on 
November 30, 1961, infra p. 11a.



9

How the Federal Questions Were Raised

At the commencement of the trial in the Recorder’s Court 
of the City of Greenville, petitioners moved to quash the 
informations and dismiss the warrants on the ground that 
the charge was too uncertain and indefinite to apprise peti­
tioners of the charge against them, in violation of the due 
process clause of the Fourteenth Amendment to the Con­
stitution of the United States (R. 2, 3). The motion was 
denied by the Court (R. 3).

At the close of the prosecution’s case, petitioners moved 
to dismiss the warrants against them:

“The evidence presented on the charge showTs conclu­
sively that by arresting the defendants the officers were 
aiding and assisting the owners and managers of 
Kress’ Five and Ten Cent Store, in maintaining their 
policies of segregating or excluding service to Negroes 
at its lunch counter . . .  in violation of defendants’ 
rights to due process of law, and equal protection of 
the laws, under the 14th Amendment to the United 
States Constitution” (R. 28, 29);

“that the warrant which charges them with trespass 
after warning, the designation of the act being set 
forth as invalid, in that the evidence establishes merely 
that defendants were peacefully upon the premises of 
S. H. Kress & Company, which establishment is per­
forming an economic function invested with the public 
interest as customers, visitors, business guests or in­
vitees and there is no basis for the charge recited by 
the warrants other than an effort to exclude these de­
fendants from the lunch counters of Kress’ Five and 
Ten Cent Store, because of their race and color . . . 
thereby depriving them of liberty without due process



10

of law and equal protection of the laws secured to them 
by the 14th Amendment to the United States Consti­
tution” (R. 29, 30) ;

“The designation of the act being set forth in the war­
rant under which all these defendants, who are 
Negroes, were arrested and charged is on the evidence 
unconstitutional as applied to the defendants, in that 
it makes it a crime to be on property open to the public 
after being asked to leave because of race and color 
in violation of the defendants’ rights under the due 
process and equal protection clauses of the 14th Amend­
ment to the United States Constitution” (R. 30).

These motions were denied by the Court (R. 29, 30).
Petitioners further moved for a dismissal on the ground 

that the City had not established a prima facie case (R. 30). 
This motion was denied (R. 30).

At the close of the trial, petitioners renewed all motions 
for dismissal made at the conclusion of the City’s case 
(R. 52). These motions were again denied (R. 52). Fur­
ther, petitioners moved for dismissal of the cases on the 
ground that:

“ . . . the Negro defendants, were arrested and charged 
under a statute which is itself unconstitutional on 
its face, by making it a crime to be on public property 
after being asked to leave by an individual, at such 
individual’s whim. In that, such statute does not re­
quire that the person making the demand to leave, pre­
sent documents or other evidence of possessing a right 
sufficient to apprise the defendants of the validity of 
the demand to leave. All of which renders the statute 
so vague and uncertain, as applied to the defendants, 
as to violate their rights under the due process clause



11

of the 14th Amendment to the United States Consti­
tution . . . ”

This motion was denied by the Court (R. 53).
At the close of petitioners’ trial, but before judgment, 

petitioners’ counsel moved to place Greenville’s segrega­
tion in eating facilities Ordinance in evidence for considera­
tion in regard to the judgment (R. 53). The Court denied 
this motion (R. 54) but the Ordinance was placed in record 
on appeal (R. 56).

Subsequent to judgment, petitioners renewed all motions 
made prior thereto by moving for arrest of judgment or, 
in the alternative, a new trial (R. 54). The motion was not 
granted (R. 54,55).

After considering petitioners’ exceptions (R. 60), the 
Greenville County Court, on appeal held:

“ . . . the appeal should be dismissed because the prose­
cution was conducted under a valid constitutional stat­
ute and in addition the appeal should be dismissed upon 
the ground that S. H. Kress and Company has a right 
to control its own business. We think this position is 
fully sustained under the recent case of Williams v. 
Johnson, Res. 344, 268 Fed. (2d) 845 and the North 
Carolina case of State v. Nelson decided January 20, 
1961 and reported in 118 S. E. (2d) at page 47” (R. 60).

In appealing to the Supreme Court of South Carolina, 
petitioners set forth the following exceptions to the judg­
ment below (R. 61-63) :

“1. The Court erred in refusing to hold that the 
warrant is vague, indefinite and uncertain and does 
not plainly and substantially set forth the offense 
charged, thus failing to provide appellants with suffi-



12

cient information to meet the charges against them as 
is required by the laws of the State of South Carolina, 
in violation of appellants’ rights to due process of law, 
secured by the Fourteenth Amendment to the United 
States Constitution.

2. The Court erred in refusing to hold that the 
State failed to establish the corpus delicti.

3. The Court erred in refusing to hold that the 
State failed to prove a prima facie case.

4. The Court erred in refusing to hold that the evi­
dence of the State shows conclusively that by arresting 
appellants the officers were aiding and assisting the 
owners and managers of S. H. Kress and Company in 
maintaining their policies of segregating or excluding 
service to Negroes at their lunch counters on the ground 
of race or color, in violation of appellants’ right to due 
process of law and equal protection of the laws, se­
cured by the Fourteenth Amendment of the United 
States Constitution.

5. The Court erred in refusing to hold that the evi­
dence establishes merely that the appellants were 
peacefully upon the premises of S. FI. Kress and Com­
pany, an establishment performing an economic func­
tion invested with the public interest as customers, 
visitors, business guests or invitees, and that there is 
no basis for the charge recited by. the warrants other 
than an effort to exclude appellants from the lunch 
counter of said business establishment because of their 
race and color, thereby depriving appellants of liberty 
without due process of law and equal protection of 
the laws, secured by the Fourteenth Amendment to 
the United States Constitution.



13

6. The Court erred in refusing to hold that the stat­
ute appellants are alleged to have violated, to wit, Act 
No. 743 of the Acts and Joint Resolutions of the Gen­
eral Assembly of South Carolina for 1960 (R. 896, 
H. 2135), is unconstitutional on its face by making it 
a crime to be on public property after being asked to 
leave by an individual at such individual’s whim and 
does not require that the person making the demand to 
leave present documents or other evidence of pos­
sessory right sufficient to apprise appellants of the 
validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to ap­
pellants as to violate their rights under the due process 
clause of the Fourteenth Amendment to the United 
States Constitution.

7. The Court erred in refusing to permit defendants’ 
counsel to elicit relevant testimony concerning coopera­
tion of Store Managers and Police in the City of Green­
ville, South Carolina in pursuing the store managers’ 
policies, customs and practices of segregating or ex­
cluding Negroes from their lunch counters.”

In disposing of petitioners’ constitutional objections, the 
Supreme Court of South Carolina held that the charge in 
the warrant was “definite, clear and unambiguous” infra 
p. 7a; that “the act makes no reference to race or color 
and is clearly for the purposes of protecting the rights of 
the owners or those in control of private property. Irrespec­
tive of the reason for closing the counter, the evidence is 
conclusive that defendants were arrested because they chose 
to remain upon the premises after being requested to leave 
by the manager . . . and their constitutional rights were 
not violated when they were arrested for trespass,” infra 
pp. 8a, 9a.



14

The Court disposed of Greenville’s Ordinance requiring 
segregation in eating facilities as follows:

“Upon cross-examination of Capt. G. 0. Bramlette 
of the Greenville City Police Department, it was 
brought out that the City of Greenville has an ordi­
nance making it unlawful for any person owning, man­
aging, or controlling any hotel, restaurant, cafe, etc., 
to furnish meals to white persons and colored persons 
except under certain conditions; and Defendants con­
tend that they were prosecuted under this ordinance; 
however, the warrant does not so charge and there is 
nothing in the record to substantiate this contention. 
The ordinance was made a part of the record upon 
request of defendants’ counsel but defendants were 
not charged with having violated any of its provisions. 
The question of the validity of this ordinance was not 
before the trial Court and therefore not before this 
Court on appeal.”

R easons for  Granting the W rit

The Court below decided this case in conflict with prin­
ciples declared by this Court as is further set forth below:

I.
Petitioners were denied due process o f  law and equal 

protection  o f  the laws by conviction  o f  trespass in  re­
fu sin g  to leave w hite lunch  counter where their exclu ­
sion  was required by City O rdinance.

Although formally charged with violation of South Caro­
lina’s trespass statute, petitioners were actually convicted 
of having violated the segregation policy of the City of 
Greenville. This policy is expressed in Section 31-8, Code



15

of Greenville, 1953, as amended 1958 Cumulative Supple­
ment, see supra p. 3, making it unlawful “ . . .  to furnish 
meals to white persons and colored persons in the same 
room, or the same table, or at the same counter . . . ” 
(R. 56-57).

G. W. West, the Manager of the department store, and 
a Kress employee for fifteen years3 (R. 20) testified ex­
plicitly that exclusion of Negroes from the lunch counter 
and the closing of the counter when petitioners sought 
service, was caused by the City Ordinance requiring seg­
regation in eating facilities (R. 25).

Confirmation that the police were enforcing segregation 
is indicated by the fact that some whites seated at the 
lunch counter during the demonstration remained seated 
and were not arrested (R. 34) although the announcement 
to leave was made in general terms (R. 19) and at least 
five policemen were present (R. 5, 6). Moreover, the coun­
ter was reopened as soon as petitioners were removed by 
the police (R. 25).

Further confirmation that the policy of enforcing segre­
gation was the City’s appears from how the arrests were 
made. The police proceeded to Department Store without 
requests to arrest by the management (R. 5), and arrested 
petitioners without a request from the management (R. 26). 
The manager of the store testified that arrest was entirely 
the decision of the police (R. 26) and it does not appear 
that the management signed any complaint against peti­
tioners.

Prior to the demonstration, a representative of peti- 
tioers had discussed the question of service with the man-

3 West came to live in Greenville on February 3, 1960, the day 
he became Manager of the Kress Store. Prior to this he worked 
for Kress in other Cities (R. 20, 21).



16

ager and had been told that the criminal process would 
not be invoked by the store (R. 43). This was not the first 
demonstration petitioners had held in Kress’s (R. 44). 
When petitioners’ counsel attempted to question the man­
ager as to any agreement or arrangement he had made with 
the police prior to the closing of the lunch counter, the 
Court denied permission to proceed (R. 23, 24, 26).

On this record it is clear that Kress and Company would 
have been willing to cope with the controversy within the 
realm of social and economic give and take absent the Ordi­
nance of the City of Greenville requiring segregation and 
the force of local customs supported by the City and the 
State of South Carolina.4 If, as the manager testified, 
Kress & Company maintained the policy of segregation 
because of the Ordinance, then there can be no other con­
clusion than that the City, by the Ordinance and by arrest 
and criminal conviction, has “place [d] its authority behind 
discriminatory treatment based solely on color . . . ” Mr.

4 There can be little doubt that segregation of the races had 
been and is the official policy of the State of South Carolina. Cf. 
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 re­
pealing S. C. Const. Art. 11, §5 (1895) (which required legislature 
to maintain free public schools). S. C. Code §§21-761 to 779 (regu­
lar school attendance) repealed by A. & J. R. 1955 (49) 85; §21-2 
(appropriations cut off to any school from which or to which any 
pupil transferred because of court order; §21-230(7) (local trustees 
may or may not operate schools); §21-238 (1957 Supp.) (school 
officials may sell or lease school property whenever they deem it 
expedient) ; S. C. Code §40-452 (1952) (unlawful for cotton textile 
manufacturer to permit different races to work together in same 
room, use same exits, bathrooms, etc., $100 penalty and/or im­
prisonment at hard labor up to 30 days; S. C. A. & J. R. 1956 
No. 917 (closing park involved in desegregation suit) ; S. C. Code 
§§51-1, 2.1-2.4 (1957 Supp.) (providing for separate State Parks) 
§51-181 (separate recreational facilities in cities with population 
in excess of 60,000) ; §5-19 (separate entrances at circus) ; S. C. 
Code Ann. Tit. 58, §§714-720 (1952) (segregation in travel 
facilities).



17

Justice Frankfurter dissenting in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 727. The City Ordinance 
is no abstract exhortation but obligatory by its terms, to 
which were attached criminal sanctions, and it is uncon­
tradicted that one of the reasons Kress & Company chose 
a policy of racial segregation was because of the Ordinance.

The discriminatory practice of Kress, the request that 
petitioners leave and their arrest and conviction, result, 
therefore, directly from the formally enacted policy of the 
City of Greenville, South Carolina, and not (so far as 
this record indicates) from any individual or corporate 
business decision or preference of the management of the 
store to exclude Negroes from the lunch counter. Whatever 
the choice of the property owner may have been, here the 
City made the choice to exclude petitioners from the prop­
erty through its segregation Ordinance. This City segrega­
tion policy was enforced by petitioners’ arrests, convictions 
and sentences in the South Carolina courts.

The Supreme Court of South Carolina dismisses ref­
erence to the City segregation Ordinance by stating “The 
Ordinance was made a part of the record upon request of 
defendants’ counsel but defendants were not charged with 
having violated any of its provisions.” But the Constitu­
tion forbids “sophisticated as well as simple-minded modes 
of discrimination.” Lane v. Wilson, 307 U. S. 268, 275.5

By enacting, first, that persons who remain in a restau­
rant when the owner demands that they leave are “tres­
passers,” and then enacting that restaurateurs may not

5 Racial segregation imposed under another name often has been 
condemned by this Court. Guinn v. U. S., 238 U. S. 347; Lane v. 
Wilson, supra; Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933; and see Louisiana State University and A. <& 
M. College v. Ludley, 252 F. 2d (5th Cir. 1958) cert, denied 358 
U. S. 819.



18

permit Negroes to remain in white restaurants, South 
Carolina has very clearly made it a crime (a trespass) for 
a Negro to remain in a white restaurant. The manager 
of Kress’s admits as much when he testified that the lunch 
counter was closed and petitioners asked to leave because 
of the Ordinance (R. 25).

This case thus presents a plain conflict with numerous 
prior decisions of this Court invalidating state efforts to 
require racial segregation. Buchanan v. Warley, 245 U. S. 
60; Brown v. Board of Education, 347 XJ. S. 483; Gayle v. 
Browder, 352 U. S. 903 aff’g 142 F. Supp. 707, 712 (M. D. 
Ala.. 1956); Holmes v. City of Atlanta, 350 U. S. 879; Mayor 
and City Council of Baltimore v. Dawson, 350 U. S. 877; 
State Athletic Commission v. Dorsey, 359 U. S. 533; cf. 
Burton v. Wilmington Parlcing Authority, 365 U. S. 715. 
Note the dissenting opinion of Judges Bazelon and Edger- 
ton in Williams v. Hot Shoppes, Inc., 293 F. 2d 835, 843 
(D. C. Cir. 1961) (dealing primarily with the related issue 
of whether a proprietor excluding a Negro under an er­
roneous belief that this was required by state statute was 
liable for damages under the Civil Rights Act; the majority 
applied the equitable abstention doctrine). Indeed, Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845, 847 (4th 
Cir. 1959) relied upon by the Supreme Court of South Caro­
lina below, indicated that racial segregation in a restau­
rant “in obedience to some positive provision of State law” 
would be a violation of the Fourteenth Amendment. See 
also Boman v. Birmingham Transit Company, 280 F. 2d 
531 (5th Cir. 1960) ; Baldwin v. Morgan, 287 F. 2d 750 
(5th Cir. 1961).



19

II.

The decision below conflicts with, decisions of this 
Court securing the right of freedom of expression under 
the Fourteenth Amendment to the Constitution of the 
United States.

A. The Enforcem ent of the State and City Segregation  
Policy and the Interference of the Police Violated 
Petitioners’ R ight to Freedom of Expression.

Petitioners were engaged in the exercise of free ex­
pression, by verbal and nonverbal requests to the manage­
ment for service, and nonverbal requests for nondiscrimina- 
tory lunch counter service, implicit in their continued 
remaining in the dining area when refused service. As Mr. 
Justice Harlan wrote in Garner v. Louisiana: “We would 
surely have to be blind not to recognize that petitioners 
were sitting at these counters, when they knew they would 
not be served, in order to demonstrate that their race was 
being segregated in dining facilities in this part of the 
country.” 7 L. ed. 2d at 235-36. Petitioners’ expression 
(asking for service) was entirely appropriate to the time 
and place at which it occurred. They did not shout or 
obstruct the conduct of business. There were no speeches, 
picket signs, handbills or other forms of expression in the 
store possibly inappropriate to the time and place. Rather 
they offered to purchase in a place and at a time set aside 
for such transactions. Their protest demonstration was a 
part of the “free trade in ideas” (Abrams v. United States, 
250 U. S. 616, 630, Holmes, J dissenting), within the range 
of liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U. S. 359 
(display of red flag); Thornhill v. Alabama, 310 U. S. 88 
(picketing); West Virginia State Board of Education v.



20

Barnette, 319 U. S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 U. S. 449 (freedom of association).

Questions concerning freedom of expression are not re­
solved merely by reference to the fact that private property 
is involved. The Fourteenth Amendment right to free ex­
pression on private property takes contour from the cir­
cumstances, in part determined by the owner’s privacy, 
his use and arrangement of his property. In Breard v. 
Alexandria, 341 U. S. 622, the Court balanced the “house­
holder’s desire for privacy and the publisher’s right to 
distribute publications” in the particular manner involved, 
upholding a law limiting the publisher’s right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U. S. 
141 where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of asser­
tion and the action of the State, through its officers, its 
customs and its creation of the property interest are to be 
taken into account.

In this constitutional context it is crucial, therefore, 
that the stores implicitly consented to the protest and did 
not seek intervention of the criminal law. For this case 
is like Garner v. Louisiana, supra, where Mr. Justice Har­
lan, concurring, found a protected area of free expression 
on private property on facts regarded as involving “the 
implied consent of the management” for the sit-in demon­
strators to remain on the property. Petitioners informed 
the management that there would be a protest and received 
assurance that the management would not resort to the 
criminal process. Petitioners were not asked to leave the 
counter until the police arrived and the manager talked 
with the police. It does not appear that anyone connected 
with the store signed an affidavit or complaint against 
petitioners. The police officer proceeded immediately to



21

arrest the petitioners without any request to do so on 
the part of anyone connected with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at this 
lunch counter, a dispute being resolved by persuasion and 
pressure in a context of economic and social struggle be­
tween contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U. S. 236.

But even to the extent that the store may have acquiesced 
in the police action a determination of free expression 
rights still requires considering the totality of circum­
stances respecting the owner’s use of the property and the 
specific interest which state judicial action supports. Marsh 
v. Alabama, 326 U. S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 U. S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir. 
1956), reversed on other grounds, 357 U. S. 357, and com­
pare the cases mentioned above with N.L.R.B. v. Fansteel 
Metal Corp., 306 U. S. 240, 252, condemning an employee 
seizure of a plant. In People v. Barisi, 193 Misc. 934, 86



22

N. Y. S. 2d 277, 279 (1948) the Court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “circumscribed by the constitutional rights of those 
who use it.” See also Freeman v. Retail Clerks Union, 
Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent state 
interest being subserved by these trespass prosecutions is 
support of the property owner’s discrimination, a policy 
which the manager testified was caused by the State’s seg­
regation custom and policy and the express terms of the 
City Ordinance. This is the most that the property owner 
can be found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the State has the right to prevent. 
Sckenck v. United States, 249 U. S. 47, 62. The only “sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimina­
tion of racial discrimination, but this is not an “evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v. 
Chicago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877 
(8th Circuit, 1957), cert, denied 332 U. S. 851.



23

B. The Convictions Deny Petitioners’ Right to Freedom  
of Expression in That They Rest on a Statute W hich 
Fails to Require Proof That Petitioners Were Re­
quested to Leave by a Person Who Had Established 
Authority to Issue Such Request at the Time Given.

In the courts below petitioners asserted that the statute 
in question denied due process of law secured by the Four­
teenth Amendment to the Constitution of the United States 
in that it did not require that the person requesting them 
to leave the lunch counter establish his authority to make 
the demand. Although raised and pressed below by peti­
tioners, the Supreme Court of South Carolina failed to 
construe the statute to require proof that the person who 
requested them to leave establish his authority.

If in the circumstances of this case free speech is to be 
curtailed, the least one has a right to expect is reasonable 
notice in the statute under which convictions are obtained, 
to that effect. Winters v. New York, 333 U. S. 507. Here, 
absent a statutory provision that the person making the 
request to leave be required to communicate that authority 
to the person asked to leave, petitioners, in effect, have 
been convicted of crime for refusing to cease their pro­
tests at the request of a person who could have been a 
stranger. The stifling effect of such a rule on free speech 
is obvious. See Wieman v. Updegraff, 344 U. S. 183; Smith 
v. California, 361 U. S. 147.

The vice of lack of fair notice was compounded where, 
as here, petitioners were convicted under a statute which 
designated two separate crimes, see supra p. 3, and a 
warrant which failed to specify under which section the 
prosecution proceeded (R. 2). Moreover, the warrant and 
the trial court stated that petitioners were charged with 
“trespass after warning” (R. 2) (Section (1) of the Stat­
ute speaks of being “warned” ; Section (2) “without having 
been warned”), but the prosecution offered no proof that



24

petitioners had been “warned” within six months as re­
quired by Section (1) and apparently proceeded on the 
theory that Section (2) of the statute was involved.

This record is barren of any attempt by the City of 
Greenville to prove that the person who requested peti­
tioners to leave identified his authority to do so to petition­
ers, and the courts of South Carolina, although urged by 
petitioners, failed to require such proof. While one of the 
petitioners brought out, when questioned by her own coun­
sel, that she had spoken to the manager previously,6 there 
is no evidence that the other petitioners knew the authority 
of the person who gave the order to leave. With rights 
to freedom of expression at stake, the City should be re­
quired to provide clear and unambiguous proof of all the 
elements of the crime. Identification of authority to make 
the request to leave is all the more important because of 
the active role played by the police in this case, for if the 
police were enforcing segregation clearly petitioners had 
a right to remain at the counter. Garner v. Louisiana, 
supra.

No one ordinarily may be expected to assume that one 
who tells him to leave a public place, into which the pro­
prietor invited him and in which he has traded, is authorized 
to utter an order to leave when no claim of such authority 
is made. This is especially true in the case of a Negro seat­
ing himself in a white dining area in Greenville, South 
Carolina—obviously a matter of controversy and one which 
any stranger, or the police of a city with a segregation 
ordinance, might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when so ordered to do so by a person who later turns

6 She also testified that the police, not the manager, gave the 
order for petitioners to leave. See Note 1, s u p r a .



25

out to have been in authority without a claim of authority 
at the time, it means as a practical matter, that one must 
depart from public places whenever told to do so by any­
one; the alternative is to risk fine or imprisonment. Such 
a rule might be held a denial of due process. Cf. Lambert v. 
California, 33o U. S. 225. But if such is the rule the statute 
gives no fair warning, Winters v. New York, supra; Burstyn 
v. Wilson, 343 U. S. 495; Saia v. New York, 334 IT. S. 558; 
Chaplinsky v. New Hampshire, 315 U. S. 568. Absent such 
notice, petitioners surely were entitled to assume that one 
may go about a public place under necessity to observe 
orders only from those who claim with some definiteness 
the right to give them.

Indeed, as a matter of due process of law, if it is the 
rule one must obey all orders of strangers to leave public 
places under penalty of criminal conviction if one uttering 
the order later turns out to have had authority, petitioners 
are entitled to more warning of its harshness than the stat­
ute s text affirmed. Cf. Connolly v. General Construction 
Co., 269 IT. 8. 385; Lansetta v. New Jersey, 306 IT. S. 451. 
Otherwise many persons—like these petitioners—may be 
held guilty of crime without having intended to do wrong. 
This Court has said, however, that:

The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the 
human will and a consequent ability and duty of the 
normal individual to choose between good and evil. 
Morrissette v. IT. 8., 342 IT. S. 246, 250.

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Bev.



26

55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U. S. at 252-260.

On the other hand, however, if South Carolina were to 
read a scienter provision into this ordinance for the first 
time—which it has failed to do although the issue was 
squarely presented in this case—the lack of the necessary 
element of guilt, notice of authority, would require reversal 
under authority of Garner v. Louisiana, supra; Thompson 
v. City of Louisville, 362 U. S. 199.

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should 
be granted.

Respectfully submitted,

J ack  G reenberg  
C onstance  B a ker  M otley 
J am es M. N abrit , III 
M ic h a e l  M e l t sn e r

10 Columbus Circle 
New York 19, New York

M a t t h e w  J .  P erry 
L in c o l n  C. J e n k in s , J r.

1107% Washington Street 
Columbia 1, South Carolina

W il l ie  T. S m it h

Greenville, South Carolina
Attorneys for Petitioners



la

APPENDIX

O r d e r

I n  t h e

GREENVILLE COUNTY COURT 

J am es R ichard  P eterso n , et  a l .,

— v.—

C ity  oe Gr e e n v il l e .

APPEAL PROM THE RECORDER’S COURT 
OF THE CITY OF GREENVILLE

This is an appeal to this Court from the Recorder’s 
Court of the City of Greenville.

The Defendants were tried on August 11, 1960, in the 
Greenville City Recorder’s Court before the Recorder, 
John V. Jester, upon a charge of violating the Act of 
May 20, 1960, which in substance makes any person a tres­
passer who refuses to leave the premises of another im­
mediately upon being requested to leave.

The Act is very simple and plain in its language.
It appears that on August 9, 1960, the ten Defendants, 

who are making this appeal, with four other young Negro 
youths went to the store of S. H. Kress and Company and 
seated themselves at the lunch counter at the store. At the 
trial there seemed to be some attempt to minimize the evi­
dence of the officers involved as to whether or not the 
Defendants, now Appellants, refused to leave the premises 
immediately upon the request of the store manager that



2a

Order of Greenville County Court

they should leave. However, in the argument of the chief 
counsel for the Appellants, all question of doubt in this 
respect is resolved in favor of the City. According to the 
written Brief of the Defendants, the Defendants now 
“seated themselves at the lunch counter where they sought 
to be served. They were not served and, in fact, were 
told by the management that they could not be served and 
would have to leave. The Defendants refused to leave and 
remained seated at the lunch counter.”

The act clearly makes it a criminal offense for any 
person situated as the Defendants were to refuse or fail 
to “immediately” depart upon request or demand.

Therefore, the main question before this Court is whether 
or not the Appellants were lawfully tried on a charge of 
violating this Act by refusing to leave the lunch counter 
immedately when requested to do so.

In the oral argument counsel for the Appellants seemed 
to reply in a vague manner upon an “unconstitutional ap­
plication” of the Statute.

As the Court views the statute it was merely a statutory 
enlargement and re-enactment of the common law in South 
Carolina which has been recognized for more than a half 
century to the effect that when a property owner, whether 
it be a dwelling house or place of business, has the right 
to order any person from the premises whether they be an 
invitee or an uninvited person. This principle of law was 
fully and clearly reaffirmed by the Supreme Court of South 
Carolina in the recent case of State v. Starner, et al., 49 
S. E. (2d) 209.

For scores of years South Carolina has had a number 
of Statutes with reference to the law of trespass. They 
are now embodied as Article 5, Code of 1952, embracing 
Sections 16-381 to 16-394. Section 17-286 particularly refers 
to trespasses after notice.



3a

Order of Greenville County Court

Therefore, the Act of May 20, 1960, now designated in 
the 1952 Code as Sec. 17-388 is the controlling factor here. 
There can he no doubt that the field into which the Legisla­
ture entered by the enactment of this particular law was 
a well recognized portion of the law of the State of South 
Carolina. The Constitutionality of the Act cannot be ques­
tioned.

Every presumption will be made in favor of the Con­
stitutionality of a statute. There are more than fifty de­
cisions by the Supreme Court of South Carolina to this 
effect. The LTnited States Supreme Court in many eases 
has recognized that there is a presumption in favor of the 
constitutionality of an Act of Congress or of a State or 
Municipal legislative body. In the case of Davis v. Depart­
ment of Labor, 317 U. S. 255, 87 Law Ed. 250, the United 
States Supreme Court held that there is a presumption 
of constitutionality in favor of State statutes. Time and 
time again the Supreme Court of South Carolina has held 
“the law is well settled that the burden is on the person 
claiming the Act to be unconstitutional to prove and show 
that it is unconstitutional beyond a reasonable doubt”. 
McCollum v. Snipes, 49 S. E. 12, 213 S. C. 254.

In 16 C. J. S. 388, we find this language, “Statutes are 
presumed to be valid and a party attacking a statute as 
unconstitutional has the burden of proof”. Over five hun­
dred decisions from all over the United States are cited 
to support this statement of the law.

The argument of counsel for the Appellants failed to 
raise a single serious question as to the constitutionality 
of the statute.

Counsel for Appellants insisted upon the right of the 
Defendants to adduce evidence of some alleged conspiracy 
or plan on the part of the officers of the law and store



4a

Order of Greenville County Court

management to bring about this prosecution. We think 
the sole issue in the Recorder’s Court was whether or not 
the Defendants were guilty of violating the Act in ques­
tion. They now boldly admit through counsel that they 
defied the management of the store and refused to leave 
when requested. Had they departed from the store im­
mediately, as the law requires they should have, there 
would have been no arrest, but apparently in accordance 
with a preconceived plan they all kept their seats and 
defied the management and refused to leave the premises.

Evidence of any other motive on the part of the manage­
ment would have thrown no light on this case.

In my opinion the appeal should be dismissed because 
the prosecution was conducted under a valid constitu­
tional statute and in addition the appeal should be dis­
missed upon the ground that S. H. Kress and Company 
had a right to control its own business. We think this 
position is fully sustained under the recent case of Wil­
liam v. Johnson, Res. 344, 268 Fed. (2d) 845, and the North 
Carolina case of State v. Nelson, decided January 20, 1961, 
and reported in 118 S. E. (2d) at page 47.

I carefully considered all the exceptions made by the 
Appellants and I am unable to sustain any of them. It is, 
therefore,

Ordered , adjudged  and decreed that the Appeal be dis­
missed.

J am es H . P r ic e , 
Special Judge, 

Greenville County Court.

March 17, 1961.



5a

Opinion

THE STATE OF SOUTH CAROLINA 
I n  t h e  S u pr e m e  C ourt

C ity  op Gr e e n v il l e , 

—v.—
Respondent,

J ames R ichard P eterson, Yvonne J oan E ddy, H elen 
A ngela E vans, David R alph Strawder, H arold J ames 
F owler, F rank G. Smith , R obert Crockett, J ames 
Carter, Doris Delores W right and R ose Marie Collins,

Appellants.

Appeal From Greenville County 
James H. Price, Special County Judge

Case No. 4761 
Opinion No. 17845 

Filed November 10, 1961

T aylor, C.J.: Defendants were convicted of the charge 
of trespass after notice in violation of Section 16-388, 
Code of Laws of South Carolina, 1952, as amended, and 
appeal. By agreement of counsel, all bail bonds were con­
tinued in effect pending disposition of this appeal.

On August 9, 1960, in response to a call, law enforce­
ment officers were dispatched to the S. H. Kress Store in 
Greenville, South Carolina, a member of a large chain of



6a

Opinion, South Carolina Supreme Court

stores operated throughout the United States and described 
as a junior department store. Upon arrival they found 
the ten defendants and four others who were under six­
teen years of age, all Negroes, seated at the lunch counter. 
There is testimony to the effect that because of the local 
custom to serve white persons only at the lunch counter 
the manager of the store announced that the lunch counter 
was closed, the lights were extinguished, and all persons 
were requested to leave. The white persons present left, 
but all Negroes refused to leave; and those above the age 
of sixteen were thereupon charged with trespass after 
notice as provided in the aforementioned section of the 
Code, which provides:

“Any person:
“ (1) Who without legal cause or good excuse enters 

into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

“ (2) Who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not 
to do so, and fails and refuses, without good cause or 
excuse, to leave immediately upon being ordered or 
requested to do so by the person in possession, or his 
agent or representative,

“Shall, on conviction, be fined not more than one 
hundred dollars or be imprisoned for not more than 
thirty days.”

D e fe n d a n ts  c o n te n d , f ir s t ,  e r r o r  in  r e fu s in g  to  d ism iss  
th e  w a r r a n t  u p o n  th e  g ro u n d  th a t  th e  c h a rg e  c o n ta in e d  
th e re in  w a s  to o  in d e fin ite  a n d  u n c e r ta in  a s  to  a p p r is e  th e



7 a

Opinion, South Carolina Supreme Court

defendants as to what they were actually being charged 
with.

Defendants were arrested in the act of committing the 
offense charged, they refused the manager’s request to 
leave after the lunch counter had been closed and the lights 
extinguished, and there could have been no question in 
defendants’ minds as to what they were charged with. 
Further, there was at that time no claim of lack of suffi­
cient information, and upon trial there was no motion to 
require the prosecution to make the charge more definite 
and certain. Defendants rely upon State v. Randolph,
et al.,-----S. C .------ , 121 S. E. (2d) 349, where this Court
held that it was error to refuse defendants’ motion to 
make the charge more definite and certain in a warrant 
charging breach of the peace. It was pointed out in that 
case that breach of the peace embraces a variety of con­
duct and defendants were entitled to be given such in­
formation as would enable them to understand the nature 
of the offense. This is not true in instant ease where the 
charges were definite, clear and unambiguous; further, no 
motion was made to require the prosecution to make the 
charge more definite and certain. There is no merit in this 
contention.

Defendants next contend that their arrest and convic­
tion was in furtherance of a custom of racial segregation 
in violation of the Fourteenth Amendment to the Consti­
tution of the United States.

Defendants entered the place of business of the S. H. 
Kress Store and seated themselves at the lunch counter, 
they contend, for the purpose of being served, although 
four of them had no money and there is no testimony 
that such service was to be paid for by others.

The testimony reveals that the lunch counter was closed 
because it was the custom of the S. H. Kress Store in



8a

Opinion, South Carolina Supreme Court

Greenville, South Carolina, to serve whites only and after 
all persons had left or been removed the lunch counter 
was reopened for business. The statute with no reference 
to segregation of the races applies to “Any person: * * * 
Who fails and refuses without cause or good excuse * * * 
to leave immediately upon being ordered or requested to 
do so by the person in possession or his agent or repre­
sentative, * * * ” The act makes no reference to race or 
color and is clearly for the purpose of protecting the rights 
of the owners or those in control of private property. Ir­
respective of the reason for closing the counter, the evi­
dence is conclusive that defendants were arrested because 
they chose to remain upon the premises after being re­
quested to leave by the manager.

Defendants do not attack the statute as being uncon­
stitutional but contend that their constitutional rights were 
abridged in its application in that they were invitees and 
had been refused service because of their race. The cases 
cited do not support this contention while there are a 
number of cases holding to the contrary. See Hall v. Com­
monwealth, 188 Ya. 72, 49 S. E. (2d) 369, 335 U. S. 875, 
69 S. Ct. 240, 93 L. Ed. 418; Henderson v. Trailway Bus 
Company, D. C. Va., 194 F. Supp. 423; State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295; State v. Avent, 253 N. C. 
580, 118 S. E. (2d) 47; Williams v. Howard Johnson 
Restaurant, 4 Cir., 268 F. (2d) 845; Slack v. Atlantic White 
Tower System, Inc., D. C. Md., 181 F. Supp. 124, 4 Cir., 
284 F. (2d) 746; Griffin v. Collins, D. C. Md., 187 F. Supp. 
149; Wilmington Parking Authority v. Burton, Del., 157
A. (2d) 894; Randolph v. Commonwealth, -----Va. ------ ,
119 S. E. (2d) 817. The Fourteenth Amendment erects 
no shield against merely private conduct, however dis­
criminatory or wrongful, Shelley v. Kraemer, 334 U. S. 1,



9a

Opinion, South Carolina Supreme Court

68 S. Ct. 836, 92 L. Ed. 1161, 3 A. L. R. (2d) 441; and the 
operator of a privately owned business may accept some 
customers and reject others on purely personal grounds 
in the absence of a statute to the contrary, Alpaugh v. 
Wolverton, 184 Va. 943, 136 S. E. (2d) 906. In the absence 
of a statute forbidding discrimination based on race or 
color, the operator of a privately owned place of business 
has the right to select the clientele he will serve irrespec­
tive of color, State v. Avent, 253 N. C. 580, 118 S. E. (2d) 
47. Although the general public has an implied license to 
enter any retail store the proprietor or his agent is at 
liberty to revoke this license at any time and to eject 
such individual if he refuses to leave when requested to 
do so, Annotation 9 A. L. R. 379; Annotation 33 A. L. R. 
421; Brookshide-Pratt Mining Co. v. Booth, 211 Ala. 268, 
100 So. 240, 33 A. L. R. 417; and may lawfully forbid any 
and all persons, regardless of reason, race or religion, to 
enter or remain upon any part of his premises which are 
not devoted to public use, Henderson v. Trailway Bus 
Company, 194 F. Supp. 426.

The lunch counter was closed, the lights extinguished, 
and all persons requested to quit the premises. Defen­
dants refused and their constitutional rights were not 
violated when they were arrested for trespass.

Upon cross-examination of Capt. G. O. Bramlette of 
the Greenville City Police Department, it was brought out 
that the City of Greenville has an ordinance making it 
unlawful for any person owning, managing, or controlling 
any hotel, restaurant, cafe, etc., to furnish meals to white 
persons and colored person except under certain condi­
tions; and Defendants contend that they were prosecuted 
under this ordinance; however, the warrant does not so 
charge and there is nothing in the record to substantiate



10a

Opinion, South Carolina Supreme Court

this contention. The ordinance was made a part of the 
record upon request of defendants’ counsel but defendants 
were not charged with having violated any of its provi­
sions. The question of the validity of this ordinance was 
not before the trial Court and therefore not before this 
Court on appeal.

Defendants further contention that the prosecution failed 
to establish the corpus delicti is disposed of by what has 
already been said.

We are of opinion that the judgment and sentences ap­
pealed from should be affirmed; and I t I s So Ordered. 
Affirmed.

Oxner, L egge, Moss and L ewis, JJ., concur.



11a

Certificate

THE STATE OF SOUTH CAROLINA 
I n the Supreme Court 

Case No. 6032

City oe Greenville, 

—against—
Respondent,

J ames R ichard P eterson, Yvonne J oan E ddy, H elen 
Angela E vans, David Ralph Strawder, H arold J ames 
F owler, P rank G. Smith , R obert Crockett, J ames 
Carter, Doris Delores W right and R ose Marie Collins,

Appellants.

I, Harold R. Bonlware, hereby certify that I am a 
practicing attorney of this Court and am in no way con­
nected with the within case. I further certify that I am 
familiar with the record of this case and have read the 
opinion of this Court which was filed November 10, 1961, 
and in my opinion there is merit in the Petition for 
Rehearing.

/ s /  H arold R. Boulware

The Court neither overlooked nor misapprehended any 
of the facts set forth herein. Therefore the Petition is 
denied.

/s /  C. A. Taylor, C.J.
/s /  G. Dewey Oxner, A.J.
/s /  L ionel K. Legge, A.J. 
/ s /  J oseph R. Moss, A.J.
/ s /  J . W oodrow L ewis, A.J.

Columbia, South Carolina 
November 16, 1961.



Supreme Court of the United States
OCTOBER TERM, 19G1

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT and ROSE MA­
RIE COLLINS, P e t it io n e e s ,

versus
CITY OF GREENVILLE, R espo n d en t

BRIEF OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

THOMAS A. WOFFORD, 
THEODORE A. SNYDER, JR., 

200 Masonic Temple, 
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.

Tfcs R. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Jurisdiction ....................................................................  1

Questions Presented ...................................     2

Constitutional and Statutory Provisions Involved . . . .  2

Respondent’s Statement of the Case ...........................  3

Argument:
I. The petitioners were not deprived of the due

process of law and equal protection of the laws se­
cured to them by the Fourteenth Amendment in 
their trial and conviction for trespass................... 4

II. The decision of the Supreme Court of South
Carolina is in accord with the decisions of this 
Court securing the right of freedom of speech under 
the Fourteenth Amendment.....................................  14

A. The conviction of petitioners of tres­
pass after their refusal to move from a lunch 
counter in a private store did not interfere with 
their right of freedom of speech.................... 14

B. The petitioners wTere not denied free­
dom of speech in being convicted under a tres­
pass statute which does not expressly require 
proof that the person ordering them to leave 
establish his authority at the time of making 
the request ........................    17

Conclusion .........................................................................  20

( i )



TABLE OF CASES— Continued
P a g e

State v. Clyburn, 247 N, C. 455, 101 S. E. (2d) 295 . . . .  6
State v. Fallback, 40 S. C. 298, 18 S. E. 919....... . 18
State v. Lightsey, 43 S. C. 114, 20 S. E. 975 ....... 10, 11, 12
State v. Tenney, 58 S. C. 215, 36 S. E. 555 .............. 18
State v. Williams, 76 S. C. 135, 56 S. E. 783 ................ 10
Sumner v. Beeler, 50 Ind. 341 ......... ............................  8
Teamsters Union v. Hanke, 339 U. S'. 470 .................... 17
Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 256 .........  7
Thornhill v. Alabama, 310 U. S. 8 8 ................ ......... 15, 16
Tucker v. Texas, 326 U. S. 517.....................................  15
Watchtower Bible & Tract Society v. Metropolitan Life

Insurance Co., 279 N. Y. 339, 79 N. E. (2d) 433 .........  15
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 (4th Cir.) ............................................................. 7

STATUTES AND CONSTITUTIONAL PROVISIONS
Act No. 743, 1960 South Carolina General Assembly,

R 896, H 2135...........................................................3, 11
Civil Rights Act of 1875 .............. ................................  8
Code of City of Greenville, 1953, as Amended, Section

31-8 ............................................................................. 8
Constitution of the United States, Amendment I . . . . ----2

14, 17, 20
South Carolina Code of Laws, 1952, Section 16-382 - 11
South Carolina Code of Laws, 1952, Section 16-386 . . . .  11
South Carolina Code of Laws, 1952, Section 16-388 - 20
United States Code, Title 28, Section 1257(3)..........   1
United States Code, Title 42, Section 1983 ....... .. 7

OTHER A U T H O R IT IE S

Annotation, 1 A. L. R. 1165.................. ....................  6
Annotation, 9 A. L. R. 379 . . . . . . ----------. . . . . . . . . . .  12



TABLE OF CASES
P age

Beauharnais v. Illinois, 343 U. S. 250 .......................... 15
Brookside-Pratt Mining Co. v. Booth, 211 Ala, 268, 100

So. 240 ....................................................................... 12
Boynton v. Virginia, 364 U. S. 454 ..............................  9
Breard v. Alexandria, 341 IT. S. 622 ............................. 16
Civil Rights Cases, 109 U. S. 3 ...................................... 8
Commonwealth v. Richardson, 313 Mass. 632, 48 N. E. 

(2d) 678 .................................................................. . 16
Fiske v. Kansas, 274 U. S. 380 ...................................... 14
Garner v. Louisiana, 368 IT. S. 157, 164 and Footnote 11 4 
Giboney v. Empire Storage & Ice Co., 336 IT. S. 490 .. 17
Gitlow v. New York, 268 IT. S. 652 ................................  14
Griffin v. Collins, 187 F. Supp. 149 (Md.) .................. 13
Grhnke v. Brandon, 1 Nott & McCord 356 (10 S. C. Law) 9 
Gross v. Rice, 71 Maine 241 .........................................  8
Hague v. C. I. O., 307 U. S. 496 .................................... 15
Hall v. Commonwealth, 188 Va. 72, 49 S. E. (2d) 369, 

App, Dismissed, 335 IT. S. 875, Reh. Den., 335 U. S.
912 ......................................................................... 13, 15

Henderson v. Trailways Bus Company, 194 F. Supp.
423 (E. D. Va.) ...........................................................  13

Lyles v. Fellers, 138 S. C. 31, 136 S. E. 1 8 .................... 9
Marsh v. Alabama, 326 U. S. 501....................... ......... 15
Martin v. City of Struthers, 319 U. S. 141.........13, 14, 16
Meyers v. Anderson, 238 H. S. 368 ..............................  8
Saia v. New York, 334 U. S. 558 .......................  15
Schneider v. State, 308 U. S. 147..................................  15
Shelley v. Kraemer, 334 IT. S. 1 ..................................  8
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331............. 10
Slack v. Atlantic White Tower System, Inc., 181 F.

Supp. 124 (Md.) .........................................................  7
State v. Bodie, 33 S. C. 117, 11 S. E. 624 .....................  10
State v. Bradley, 126 S. C. 528, 120 S. E. 248 .. .10, 11, 12 
State v. Brooks, 79 S. C. 144, 60 S. E. 518............ ; . . .  10

(Hi)



Supreme Court: of the United States'
OCTOBER TERM, 1961.

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK 
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT a nd  ROSE MA­
RIE COLLINS, P e t it io n e r s ,

versus
CITY OF GREENVILLE, R e s p o n d e n t

BRIEF "OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF 

CERTIORARI

JURISDICTION
The petitioners invoke the jurisdiction of the Supreme 

Court of the United States pursuant to Title 28 U. S. Code, 
Section 1257 (3), upon the ground of deprivation of rights, 
privileges and immunities claimed by them under the Con­
stitution of the United States. The respondent, City of 
Greenville, objects to the jurisdiction of this Court on the 
ground that no substantial Federal question was presented 
at any stage of the proceedings below and upon the ground 
that the issues below involved property rights only and 
the petitioners were not deprived of any rights, privileges 
or immunities secured by the Constitution of the United 
States.



2 P eterson et at., P etitioners, v . City  of Greenville, Respondent

QUESTIONS PRESENTED
The respondent, City of Greenville, denies that the 

petitioners have been deprived of any rights secured to 
them by the United States Constitution. However, for the 
purpose of argument, the respondent will assume that the 
questions to be considered are those presented by the peti­
tioners as modified below’.

The respondent, subject to its reservations, submits 
that the questions presented are as follows:

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment to the Constitution of the United 
States:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter after demand 
was made for them to depart by the manager of the store.

2. Whether petitioners, as “sit-in” demonstrators, were 
denied their First Amendment freedom of speech right as 
secured by the Fourteenth Amendment when (a) convicted 
of trespass upon refusal to move from a lunch counter 
which wras reserved for the use of white persons and (b) 
when the convictions rest on a statute which does not spe­
cifically require proof that petitioners were requested to 
leave by a person who had established his authority to issue 
such request at the time of making the request.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

In addition to the Constitutional and statutory pro­
visions cited by the petitioners on page 3 of the Petition 
this case involves the First Amendment to the Constitution 
of the United States.



P eterson et al., P etitioners, v. City  of Greenville, Respondent 3

RESPONDENT’S STATEMENT OF THE CASE
The petitioners were each tried and convicted in the 

Recorder’s Court of the City of Greenville, South Carolina. 
They were charged with violating Act No. 743 of the 1960 
South Carolina General Assembly, R 896, II 2135, now 
Section 16-388, Code of Laws of South Carolina, 1952. The 
statute, in pertinent part, provides that: “Any person: 
* * * (2) who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not to do 
so, and fails and refuses without good cause or excuse, to 
leave immediately upon being ordered or requested to do 
so by the person in possession or his agent or represen­
tative, shall, on conviction, be fined not more than one 
hundred dollars, or be imprisoned for not more than thirty 
days.” This Act was approved by the Governor on the 16th 
day of May, 1960 and took effect 30 days later, or the 15th 
day of June, 1960. On August 9, 1960 at approximately 
11:00 A. M. the petitioners entered the S. H. Kress & Com­
pany department store in the City of Greenville and took 
seats at the lunch counter in that store (R. 5). Only one 
of the petitioners testified as to placing any order for serv­
ice (R. 41). Four of the petitioners had no money at all 
in their possession (R. 7, 8) and the one who did place 
an order refused to state that any of the others had placed 
an order (R. 46). It is apparent that the real purpose of 
the petitioners in being in the Kress store was to put pres­
sure on the manager by way of a demonstration (R. 43). 
One of the Petitioners testified that this was only one of 
several demonstrations in the same store and lunch counter 
(R. 44). There is no evidence that any of the petitioners 
had previously been served at this particular lunch counter 
on any occasion. The only reasonable inference is that on 
the occasion of the prior demonstrations service had been 
refused them.



4 P eterson e t  a l . ,  P etitioners, v . City  of Greenville, Respondent

On the date of the commission of the offenses herein 
complained of the petitioners seated themselves at a lunch 
counter which had space for fifty-nine persons. The peti­
tioners were advised that Negroes were not served at that 
counter (R. 41). The lights were extinguished and C. W. 
West, the manager of the store, requested that everyone 
leave (R. 19). All the white people who had been present 
left pursuant to this request, leaving behind the petitioners 
herein (R. 20). The petitioners did not leave and after a 
wait of approximately five minutes (R. 20), they were ar­
rested and charged with violation of the trespass after 
notice statute which has been referred to. Their convictions 
subsequently were reviewed by the Supreme Court of South 
Carolina and from the decision of that Court sustaining 
the convictions, they petition this Court for a Writ of 
Certiorari.

ARGUMENT
I

The Petitioners were not deprived of the due process 
of law and equal protection of the laws secured to them by 
the Fourteenth Amendment in their trial and conviction 
for trespass.

The real issue in this case is whether or not a land­
owner has a right by virtue of his property ownership to 
say who may and who may not come upon or remain upon 
Ms premises. We reach the question left open in Garner v. 
Louisiana, 368 U. S. 157, 164 and footnote 11, the question 
“whether or not a private property owner and proprietor 
of a private establishment has the right to serve only those 
whom he chooses and to refuse to serve those whom he 
desires not to serve for whatever reason he may deter­
mine.”

The S. H. Kress & Company operates a variety or 
junior department store in the City of Greenville. In the



P eterson e t  a t ,  P etitioners, v . City  of Greenville, Respondent  5

building housing the store there have been set up some fif­
teen to twenty departments, including a lunch counter. 
In these departments are sold approximately ten thousand 
items (R. 21, 22). The decision as to what items are to be 
offered for sale is the result of a business judgment, made 
by a trained and experienced management. These decisions 
are made with the calculated business purpose in view of 
earning a profit. Some items sold are offered because there 
is an existing demand for them. As to other items the man­
agement seeks to create a demand by display and advertis­
ing. It has no monopoly and no one is required to buy any­
thing from it. Nor is S. II. Kress & Company a public util­
ity. It was not required to obtain a certificate of public 
convenience before opening the doors of its store in Green­
ville. It requires the consent of no one if it desires to close 
its doors and move away. The only license it is dependent 
Upon is the continued good will of the buying public. No 
one can complain if its clerks are obnoxious, or if it refuses 
to sell certain items or insists on selling certain others.

Likewise, a private business such as the S. II. Kress 
& Company may regulate its opening and closing hours for 
daily business. Whether as lessee or as owner in fee simple, 
the private proprietor has the right to exclude everyone 
when the store is closed. His dominion over the premises 
is absolute.

Thus it will be seen that the proprietor has two rights 
in the situation presented in the case at bar. He has the 
right to do business with whom he pleases, and he has the 
right to control and possession of the premises whereon he 
conducts his business.

The right to select business clients.
The necessary parties to any private business selling 

transaction are a willing buyer and a willing seller. If one 
of the parties is unwilling, no measure of willingness on



6 P eterson e t  al .,  P etitioners, v . City  op Greenville, Respondent

the other side can make up the deficiency and force the 
sale. No law compels either party to go through with the 
transaction. The general rule of the common law, which is 
in effect in South Carolina, is that properietors of private 
enterprises ai-e under no obligation to serve without dis­
crimination all who seek service, but. on the contrary enjoy 
an absolute power to serve whom they please. This was 
expressly held below to be the law of South Carolina, there 
being no statute to the contrary. (Petitioners’ appendix, 
9a.) The right of a proprietor, other than an innkeeper or 
common carrier, to do business with whom he pleases, and 
to refuse to do business with others, for any reason, or 
for no reason at all, has been consistently and uniformly 
held by the courts of this country, in the absence of legisla­
tion to the contrary. Annotation, 1 A. L. R. (2d) 1165. 
The refusal of a proprietor to do business with any prospec­
tive customer can be based on the rankest of discrimination, 
either of race, color or creed, or on some whim unreason­
able or even fanciful. As was said in State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295:

“The right of an operator of a private enterprise 
to select the clientile he will serve and to make such 
selection based on color, if he so desires, has been re­
peatedly recognized by the appellate courts of this na­
tion. Madden v. Queens County Jockey Club, 269 N. Y. 
249, 72 N. E. _(2d) 697, 1 A. L. R. (2d) 1160; Terrell 
Wells Swimming Pool v. Rodriguez, Tex. Civ. App. 
182 S. W. (2d) 824; Booker v. Grand Rapids Medical 
College, 156 Mich. 95, 120 N. W. 589, 24 L. R. A., NS 
447; Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 
16 L. R. A. 558; Goff v. Savage, 122 Wash 194, 210 
P. 374; DeLaYsla v. Publix Theatres Corporation, 82 
Utah 598, 26 P. (2d) 818; Brown v. Meyer Sanitary 
Milk Co., 150 Kan. 931, 96 P. (2d) 651; Horn v. Illinois 
Cent. R. Co., 327 111. App. 498, 64 N. E. (2d) 574; Cole­
man v. Middlestaff, 147 Cal. App. (2d) Supp. 833, 305 
P. (2d) 1020; Fletcher v. Coney Island, 100 Ohio App.



P eterson e t  a l ,  P etitioners, v . City  of Greenville, Respondent 7

259, 136 N. E. (2d) 344; Alpaugh v. Wolverton, 184 
Va. 943, 36 S. E. (2d) 906.”
Mr. Justice Holmes recognized the principle in Ter­

minal Taxicab Co. v. Kutz, 241 TJ. S. 252, 256, where he 
said:

“It is true that all business, and for the matter of 
that, every life in all its details, has a public aspect, 
some bearing on the welfare of the community in which 
it is passed. But, however it may have been in earlier 
days as to the common callings, it is assumed in our 
time that an invitation to the public to buy does not 
necessarily entail an obligation to sell. It is assumed 
that an ordinary shopkeeper may refuse his wares arbi­
trarily to a customer whom he dislikes * *
The refusal of a restaurateur to serve a prospective 

patron because of his color has been held in several recent 
decisions to deprive a Negro of none of the rights, privi­
leges or immunities secured to a citizen by the Constitution 
of the United States, and protected from the infringement 
by the Civil Rights Act, Title 42, United States Code, Sec­
tion 1983. Williams v. Howard Johnson’s Restaurant, 268 
P. (2d) 845 (4th Cir.); Slack v. Atlantic White Tower 
System, Inc., 181 F. Supp. 124 (D. C. Md.), affd., 284 F. 
(2d) 746 (4th Cir.). In the Williams v. Howard Johnson’s 
case the Fourth Circuit Court held there was a distinction 
between activities that are required by the state and those 
which are carried out by voluntary choice and without com­
pulsion by the people of a state in accordance with their 
own desires and social practices. The latter, it was held, 
deprived no one of any civil rights. That permissible area 
of voluntary selection of customers is what is presented by 
the facts of the instant case. The manager of the store tes­
tified that the practice of serving only white persons was 
in conformity with a policy of the company to follow local 
customs. The policy was made at the company’s head-



8 P eterson e t  a t ,  P etitioners, v . City of Greenville, Respondent

quarters, and was obviously dictated by business reasons. 
(R. 22, 23, 25.) 1

Since the manager of Kress’ store was acting for it 
enforcing its voluntarily imposed policy, he had an absolute 
right to refuse to serve the petitioners herein.

Indeed, in the Civil Rights Cases, 109 TJ. S. 3, this 
Court held unconstitutional the section of the Civil Rights 
Act of 1875 providing that all persons within the jurisdic­
tion of the United States should be entitled to the full and 
equal enjoyment of the accommodations, advantages, fa­
cilities, and privileges of inns, public conveyances, theaters 
and other places of public amusement, with penalty for one 
who denied same to a citizen. One of the vices in the statute 
was that it laid down rules for the conduct of individuals 
in society towards each other, and imposed sanctions for 
the enforcement of those rules, without referring in any 
manner to any supposed action of the state or its author­
ities. The person supposedly injured, it was said, would 
be left to his state remedy. And in the instant case, as we 
have stated, the common law is in effect and gives no right 
to the petitioners or anyone else to be served without the 
consent of the restaurateur or proprietor of a business.

The Court has continued to recognize that individuals 
have the right in their purely private day to day dealings 
to associate and discriminate as they see fit, for whatever 
reason is to their own minds satisfactory. The court spe­
cifically stated in Shelley v. Kraemer, 334 U. S. 1:

• I t  is equally clear th a t  the ordinance of the C ity of Greenville 
req u irin g  segregation  in ea ting  places (R . 56, 57) had no bearing  on 
the in s ta n t case. The valid ity  of th is ordinance has never been tested. 
I t  is clear, how ever, th a t  if  i t  is unconstitu tional, any  action taken 
p u rs u a n t to  its  m andate  would be personal, and taken  a t  the risk  of 
personal liab ility  on the p a r t  of the person so acting. G ro ss  v . R ic e ,  
71 M aine 241; S u m n e r  v . B e e le r ,  50 Ind. 341; M e y e r s  v . A n d e r s o n ,  
238 U. S. 368. The police cap ta in  who m ade the a rre s ts  testified he did 
ho t have the  ordinance in  m ind (R. 1 0 ); in  fa c t he w as of the opinion 
i t  had  been superseded (R. 17), and w as not then  in  effect.



P eterson e t  a l.,  P etitioners, v . City op Greenville, Respondent 9

“Since the decision of this Court in the Civil Rights 
cases, . . .  the principle has become embedded in 
our constitutional law that the action inhibited by the 
first section of the I  ourteenth amendment is only such 
action as may fairly be said to be that of the States. 
That Amendment erects no shield against merely pri­
vate conduct, however discriminatory or wrongful.”
Similarly, in Boynton v. Virginia, 364 U. S. 454, this 

Court held that a bus station restaurant was required to 
serve all who sought service without discrimination, under 
the Interstate Commerce Act, where the restaurant was an 
integral part of a bus company’s interstate transportation 
service. The Court made this reservation:

“We are not holding that every time a bus stops 
at a wholly independent roadside restaurant the Inter­
state Commerce Act requires that restaurant service 
be supplied in harmony with the provisions of that act.”
The instant case falls squarely within the reservation. 

The S. H. Kress & Company in Greenville, South Carolina, 
provides only a local restaurant service. Its facilities are 
not connected'to or with any business affected with a public 
interest. As a purely private business venture, it is and 
was legally entitled to refuse service to the petitioners 
herein.
The right to exclusive possession of business premises.

Ownership of real estate, whether a fee simple, a life 
estate, or a term for years is basically a right to its posses­
sion. From the right of possession follows the right of the 
owner to make whatever use of the premises that suits his 
fancy. Anyone who enters without his permission is a tres­
passer. The civil action for damages for trespass quare 
clausum fregit is founded on plaintiff’s possession, and it 
is for injury to that possession that damages are awarded. 
Grirnke v. Brandon, 1 Nott & McCord 356 (10 S. C. Law); 
Lyles v. Fellers, 138 S. C. 31, 136 S. E. 18.



10 P eterson e t  al . ,  P etitioners, v . City  of Greenville, Respondent

It lias always been the law that a person in possession 
is entitled to maintain that possession, even by force if 
necessary.

“A man who attempts to force himself into an­
other’s dwelling, or who, being in the dwelling by in­
vitation or license refuses to leave when the owner 
makes that demand, is a trespasser, and the law per­
mits the owner to use as much force, even to the taking 
of his life, as may be reasonably necessary to prevent 
the obtrusion or to accomplish the explusion,” State 
v. Bradley, 126 S. C. 528, 120 S. E. 248.
Of course, away from the dwelling, the right to kill 

in ejecting a trespasser does not exist. Still, it is the law 
of South Carolina that any person in the rightful pos­
session of land may approach any person wrongfully there­
on, and order him to leave or quit the land, and in the event 
of a refusal to do so, may use such force as may be neces­
sary to eject such trespasser. State v. Bodie, 33 S. C. 117,
11 S. E. 624; State v. Williams, 76 S. C. 135, 56 S. E. 783; 
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331. In ejecting 
such trespassers gentle force must be used, State v. Brooks, 
79 S. C. 144, 60 S. E. 518.

The policy of the law does not favor the use of force 
and firearms by persons in possession of land who seek 
to remove trespassers. The charge in State v. Lightsey, 43 
S. C. 114, 20 S. E. 975 expresses it thus:

“But I charge you a man has no right to take his 
gun and run a man off his place. That is simply taking 
the law into his own hands.”
As a substitute for the strong armed ejectment by the 

person in possession, the law of this state has for many 
years provided a calm judicial mode of ejectment, employ­
ing the more even temperaments of impartial law enforce­
ment officers and judges. Thus the law has provided for 
many years that malicious injury to real property should



P eterson e t  al .,  P etitioners, v . City  of Greenville, Respondent  11

be a misdemeanor. Code of Laws of South Carolina, 1952, 
Section 16-382. Since 1866 our State lias made entry on 
lands of another after notice prohibiting such entry a mis­
demeanor. Code of Laws of South Carolina, 1952, Section 
16-386. It has never been suggested that these laws were 
intended other than for the protection and preservation of 
property rights. The opinions of our Court in South Caro­
lina have strongly intimated that a person in possession 
of property should not take the law in his own hands in 
removing trespassers, but on the contrary they are exhorted 
to seek the aid and protection of the courts, by prosecuting 
the trespasser for these misdemeanors. State v. Lightsey, 
supra.

It may be objected that the statutory law of South 
Carolina until 1960 provided only for prosecutions for entry 
after notice. But the court in State v. Bradley, supra, indi­
cated otherwise. There, quoting State v. Liglitsey, supra, 
the court said that if a man warns another off his place, 
and that man comes on it, or refuses to leave, he is guilty 
of a crime, a misdemeanor, and for that misdemeanor he 
may be tried in court. The 1960 Act, under which petitioners 
were tried and convicted, adds nothing to the substance 
of the existing law. It merely clarifies and provides ex­
pressly for the misdemeanor of trespass by one who refuses 
to leave on being requested to do so. It made positive what 
the court had held in State v. Bradley, supra, was impliedly 
a part of the law prohibiting entry after notice.

With respect to country and farm lands, no one may 
enter them without permission. With respect to a store 
building, or business premises, the proprietor or operator 
expects and invites prospective customers to enter. This 
is a sort of permission which renders the original entry 
rightful and not a trespass. Business invitees are often 
spoken of as licensees, license being nothing more than a 
mere grant of permission. Ordinarily it is implied from



12 P eterson et al., P etitioners, v . City  of Greenville, Respondent

the opening of the doors of a business establishment. Such 
a license is always revocable, and when revoked the licensee 
becomes a trespasser if he does not immediately depart. 
In the annotation, 9 A. L. E. 379, it is put as follows:

“It seems to be well settled that although the gen­
eral public have an implied license to enter a retail 
store, the proprietor is at liberty to revoke this license 
at any time as to any individual, and to eject such in­
dividual from the store if he refuses to leave when 
requested to do so.”
In Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 

100 So. 240, the Court held that the proprietor of a 
store would not be liable for damages for assault and bat­
tery in ejecting a prospective patron from his store, when 
he did not desire to transact business with the person, and 
he had notified him to leave but was met with a refusal to 
do so, after giving him a reasonable time in which to depart.

The petitioners in this case found themselves in the 
identical situation. The manager of the store revoked their 
license or privilege to be there, and directed them to leave. 
(E. 19, 20.) After five minutes had passed, the petitioners 
still had not moved, although other persons originally 
present had departed when requested to leave. (E. 20.) 
At the end of that interval, the S. H. Kress & Company 
had a right to remove the petitioners by force. It is not 
contended that the petitioners were not given a reasonable 
time in which to depart, and the finding of the courts below 
on that element of the offense is conclusive. But our law 
does not favor persons in possession of property taking 
the law into their hands to eject trespassers. State v. Brad­
ley, supra; State v. Lightsey, supra. The law made the 
conduct of the petitioners a misdemeanor. The law favors 
their removal by the forces of law and trial by the orderly 
processes of a court of justice.



P eterson e t  al .,  P etitioners, v . City  of Greenville, Respondent 13

The only purpose of the law in this case is to protect 
the rights of the owners or those in lawful control of private 
property. It protects the right of the person in possession 
to forbid entrance to those he is unwilling to receive and 
to exclude them if, having entered, he sees fit to command 
them to leave. Hall v. Commonwealth, 188 Va. 72, 49 S.
E. (2d) 369, app. dismissed, 335 U. S. 875, Reh. den. 335 
U. S. 912. As Mr. Justice Black said in Martin v. City of 
Struthers, 319 U. S. 141:

“Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.”

Of course, the police officers had a right and a duty to ar­
rest for the misdemeanor committed in their presence.

The petitioners contend that their arrest and trial by 
the city police and in the city court was state action which 
deprived them of Fourteenth Amendment rights. There is 
no inference that the law involved or the other trespass 
laws have been applied to Negroes as a class or to these 
petitioners to the exclusion of other offenders. Certainly 
they were not deprived of any rights in being removed 
from the Kress store, a place where they had no right to 
remain under the law, after being requested to leave. 
Granted the right of a proprietor to choose his customers 
and to eject trespassers, it can hardly be the law, as peti­
tioners contend, that the proprietor may use such force 
as  he and his employees possess, but may not call on a 
peace officer to protect his rights. Griffin v. Collins, 187 F. 
Supp. 149 (D. C. Md.); Henderson v. Trailways Bus Com- 
pany, 194 F. Supp. 423 (E. D. Va.). A right which cannot 
he protected and enforced through the judicial machinery 
is  a  non-existent right.

I n  th is  th e re  is no conflict with any prior decisions of 
th is  C o u rt, The cases cited by petitioners all involve state



14 P eterson e t  al .,  P etitioners, v . City  of Greenville, Respondent

action on state owned or operated premises, state-furnished 
services, and common carriers. None of them involve purely 
private action taken in respect of property rights to private 
property. We submit that the only constitutional right in­
volved in this case is the right of a property owner to the 
free and untrammelled use of his premises in whatever 
manner he sees fit.

II
The decision of Supreme Court of South Carolina is in 

accord with the decision of this Court securing the right of 
freedom of speech under the Fourteenth Amendment.

A. The conviction of petitioners of trespass after their 
refusal to move from a lunch counter in a private store did 
not interfere with their freedom of speech.

When the petitioners use the term “freedom of ex­
pression” we assume they have in mind freedom of speech, 
which is protected from abridgment by Congress by the 
First Amendment to the Constitution of the United States. 
Since 1925, the First Amendment freedom of speech has 
been regarded as an aspect of “liberty” which under the 
Fourteenth Amendment the States are prohibited from tak­
ing away without due process of law. Gitlow v. New York, 
268 U. S. 652; Fislce v. Kansas, 274 U. S. 380.

Freedom to expound one’s views and distribute infor­
mation to every citizen wherever he desires to receive it 
is clearly vital to the preservation of a free society. Martin 
v. Struthers, 319 U. S. 141. This freedom gives the right to 
the person who would speak to try and convince others of 
the correctness of his ideas and opinions. The title to streets 
and parks has immemorially been held in trust for the use 
of the public, and time out of mind have been used for 
purposes of assembly, communicating thoughts between 
citizens, and discussing public questions. The streets are 
natural and proper places for the dissemination of infor-



Peterson e t  a t ,  P etitioners, v . City  op Greenville , Respondent  15

mation and opinion. Schneider v. State, 308 U. S. 147; 
Hague v. C. I. 0., 307 U. S. 496; Thornhill v. Alabama, 310 
IJ. S. 88. Even where the streets and parks are privately 
owned, as in company towns, citizens have a right to go 
upon them to communicate information, unimpeded by tres­
pass statutes. Marsh v. Alabama, 326 U. S. 501; Tucker 
v. Texas, 326 U. S. 517. Even freedom of speech on the 
public streets is subject to some control. Saia v. New York,
334 U. S. 558. In Beauharnais v. Illinois, 343 U. S. 250, this 
Court held that a person expressing his honest convictions 
on the streets could be prosecuted under a state group libel 
statute.

When we leave the streets, and consider the right to 
freedom of speech on private property, we find that the 
courts have unanimously held that the right of freedom 
of speech must yield to the property right of the landowner 
to eject trespassers. In Hall v. Commonwealth, 118 Va. 
72, 49 S. E. (2d) 369; app. dism. 335 U. S. 875; reh. den.
335 U. S. 912, the conviction of a member of a religious 
sect for trespass under a statute similar to the one here 
was upheld. The right of the individual to freedom of speech 
had to yield, it was held, to the property rights of the owner 
of an apartment building and its tenants. There was no 
right for anyone, over their objection, to insist on using 
the inner hallways to distribute their views and informa­
tion. The refusal of those persons to depart after being 
requested to do so, was held to justify their conviction for 
trespass. The court stated that inner hallways of apart­
ment houses were not to be regarded in the same light as 
public roads; they emphatically do not constitute places of 
public assembly, or for communicating thoughts one to 
another, or for the discussion of public questions. The First 
Amendment has never been held to inhibit action by indi­
viduals in respect to their property. Watclitower Bible & 
Tract Society v. Metropolitan Life Insurance Company,



16 Peterson  e t  a t ,  P etitioners, v . City  op Greenville, Respondent

279 N. Y. 339, 79 N. E. (2d) 4.33; Commonwealth v. Richard­
son, 313 Mass. 632, 48 N. E. (2d) 678. The petitioners in 
this case had the right to express their opinions on the 
streets. They had the privilege to enter the Kress store in 
Greenville. But, when they refused to leave on being re­
quested to do so, they no longer had a right to give vent 
to their thoughts on the premises of the Kress store. They 
cannot complaint of their conviction for trespass where 
they insisted on remaining in a place they had no right to 
be. They cannot be permitted to arm themselves with an 
acceptable principle, such as freedom of speech, and pro­
ceed to use it as an iron standard to smooth their path 
by crushing the rights of others to the possession of their 
property. Breard v. Alexandria, 341 IJ. S. 622.

The petitioners cite a number of labor relations and 
particularly picketing cases. Undoubtedly peaceful picket­
ing may be carried out on the public streets and sidewalks. 
Picketers have the right to publicize their dispute under 
the First Amendment. What is protected in picketing is 
the liberty to discuss publicly and truthfully all matters of 
public concern. Thornhill v. Alabama, 310 U. S. 88. The 
important thing about picketing is that it is used to inform 
members of the public of the existing state of affairs. Its 
purpose is not to inform the employer; assumedly he knows 
of the dispute, and at least one side of the argument. In 
the instant case the petitioners were not attempting to pass 
on information to the public. They were attempting by 
demonstration and coercion to force a private person to 
make a use of his property not in accord with his desires. 
Here there was no gentle persuasion. Nor was the S. H. 
Kress & Company the proper object of their instruction. 
A private person cannot be forced, on his owm property, 
to listen to the arguments of anyone, whether he agrees 
with the sentiments expressed or not. Martin v. Struthers, 
supra. Even the listener on the street can turn away. A



P eterson  et a t ,  P etitioners, v. City op Greenville , Respondent  17

listener on Ms own land should not be required to retreat, 
he should be able to require the speaker to turn away, and 
prosecute him for trespass if he does not.

Peaceful picketing, even when conducted on the streets, 
is not absolutely protected by the First Amendment. Picket­
ing cannot be used in connection with a conspiracy to re­
strain trade, to prevent union drivers from crossing picket 
lines. Giboney v. Empire Storage & Ice Co., 336 U. S. 490. 
Kor is picketing lawful where it interferes with the free 
ingress and egress of customers into a place of business. 
Teamsters Union v. Hanke, 339 U. S. 470. The conduct of 
the petitioners in this case, if  it can be analogized to picket­
ing, was unlawful. They sought not to appeal to the reason 
of the public. They sought rather to obstruct the business 
o f  S. H. Kress & Company by squatting on its property and 
refusing to move. They sought to prevent its doing business 
with others unless it did business with them, by taking 
steps to effectively prevent the entrance of others. Their 
conduct clearly exceeded the bounds of freedom of speech 
a n d  of peaceful picketing. They were properly arrested 
a n d  convicted of trespassing.

B . T h e  p e ti t io n e rs  w e re  n o t d e n ie d  freed o m  o f sp eech  
in  b e in g  co n v ic ted  tin d e r  a  tre s p a s s  s ta tu te  w h ich  does n o t  
ex p re ss ly  re q u ire  p ro o f  t h a t  th e  p e rs o n  o rd e r in g  th em  to  
leav e  e s ta b lish  h is  a u th o r i ty  a t  th e  t im e  of m ak in g  th e  
req u e s t.

T h e  p e ti tio n e rs  m oved  in  th e  t r i a l  c o u r t  for d ism issa l 
o f th e  w a r ra n ts  on th e  g ro u n d  th e y  w e re  ind efin ite  an d  u n ­
c e rta in . T h e  f a c ts  o f  th e  ease show  o th erw ise . T h ey  w ere  
a r r e s te d  in  th e  a c t  o f  co m m ittin g  th e  o ffen se  ch arg ed , th ey  
re fu se d  th e  m a n a g e r 's  re q u e s t to  leave  a f t e r  th e  lunch  coun­
t e r  h a d  been  d o s e d  a n d  th e  l ig h ts  ex tin g u ish ed . T h e re  could  
h ave  been  no d o u b t in  th e ir  m in d s a s  to  w h a t th e y  w e re  
ch a rg ed  w ith . W a r r a n ts  d raw n  such a s  th e  ones in  th e  in -



18 P eterson e t  a l ,  P etitioners, v . City of Greenville, Respondent

slant case have been passed on before and held sufficient. 
In State v. Hallbach, 40 S. C. 28, IS S. E. 919, the warrant 
was held sufficiently certain which alleged “that Jerry Hall- 
back did commit a trespass after notice.” Of like effect is 
State v. Tenney, 58 S. C. 215, 36 S. E. 555. The petitioners’ 
attorneys realized they were being charged with trespass. 
(R. 2.) And from the warrant they had a citation to the 
law, with particulars as to the date, time and place of the 
arrest. And it is noteworthy of comment that the petitioners 
did not make a motion to make the charge more definite 
and certain, which they had a right to do.

The petitioners claim that the statute is unconstitu­
tional because it does not expressly require the landowner 
or person in possession to identify himself. The statute 
necessarily means that the person forbidding a person to 
remain in the premises of another shall be the person in 
possession, or his agent or representative, and that is an 
essential element of the offense to be proved by the State 
beyond a reasonable doubt. The manager of the store tes­
tified positively that he was the manager and that he re­
quested the petitioners to leave. (R. 19.) The only one of 
the petitioners to testify at the trial knew Mr. West was 
the manager as she had spoken to him over the telephone 
before (R. 43), and she recognized him at the store at 
the time of the demonstration (R. 42, 47).

If the person ordering them out had no such authority, 
that would be a defense, to be proved in Court. But here 
the evidence supports the inference that the petitioners 
knew that the person who ordered them to leave had au­
thority to do so. They did not question his authority. They 
did not so much as ask his name, so they could later inves­
tigate the extent of his authority. The petitioners knew 
they were not authorized and they could presume that any­
one who undertook to exercise control over the premises 
was lawfully in control.

M



P eterson e t  al . ,  P etitioners, v . City  of Greenville, Respondent  19

The cases cited by petitioners are not relevant here at 
all. They require scienter in cases involving matters of 
opinion based on value judgments. The authority of the 
person ordering them to leave the S. H. Kress Company 
store does not involve such a judgment. It cannot be con­
tended that petitioners should be entitled to spar with the 
person in possession requiring proof of authority to their 
satisfaction. Could they require a landowner to produce 
his deed, or a lessee his lease! Can they argue with him 
over the extent of his implied authority and all the nice 
technicalities of the law of agency! We submit that the 
authority of the person in possession is apparent from his 
direction to another to leave the premises, that he cannot 
be required to prove his authority to the satisfaction of 
the trespasser there or anywhere, except in a court when 
he is tried for the trespass. The petitioners never ques­
tioned the authority of the manager and his authority hav­
ing been proved in court beyond a reasonable doubt, they 
should not now be heard to complain.



20  P eterson e t  a l ,, P etitioners, v . City  o p  Greenville, Respondent

CONCLUSION
For the foregoing reasons the respondent submits that 

Section 16-388 of the Code of Laws of South Carolina, 1952, 
as applied to the petitioners, presents no question what­
ever in conflict with the Fourteenth and First Amendments 
to the Constitution of the United States, or the decisions 
of this Court, and that the petition for Writ of Certiorari 
in this case should be denied.

Respectfully submitted,
THOMAS A. WOFFORD,
THEODORE A. SNYDER, JR., 

200 Masonic Temple, 
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.



In  t h e

l̂ uprptnr Court uf tljr Ifttitr̂  Blatm
October Term, 1961 

No.............

N a t h a n ie l  W e ig h t , C h a rles  L. S m art , E asco W h it e , 
J am es W . T h o m a s , B e n ja m in  C arter , J tjdson F ord,

Petitioners,
— v .—

S tate  of G eorgia ,
Respondent.

REPLY TO BRIEF IN OPPOSITION TO PETITION 
FOR WRIT OF CERTIORARI

J ack  Greenberg  
C onstance  B a ker  M otley  
L eroy D . Clark

10 Columbus Circle 
New York 19, New York

B . Clarence  M a yfield  
E. H. Gadsen

Attorneys for Petitioners



1st the

Court of %  Imtpfc ^tatro
October Term, 1961 

No.............

Nathaniel W eight, Charles L. Smart, R asco W hite, 
J ames W. T homas, Benjamin Carter, J udson F ord,

—v.-
Petitioners,

State of Georgia,
Respondent.

on petition eor a writ of certiorari to the
SUPREME COURT OF GEORGIA

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION  
TO PETITION FOR W RIT OF CERTIORARI

Petitioners have received respondent’s Brief in Opposi­
tion to the Petition for Writ of Certiorari filed in this case 
and hereby reply pursuant to Rule 24(4) of the Buies of 
this Court.

I.

M ode o f  R aising C onstitutional Q uestions

Respondent argues that where a state court has declined 
to pass upon a constitutional question for alleged failure 
to raise the question properly this Court may pass upon 
it only where the state has applied the procedural rule in­
consistently. But this Court has in many instances found 
such refusal unreasonable for reasons other than incon-



2

sistent application. Terre Haute I. B. Co. v. Indiana, 194 
U. S. 579, 589; Union P. R. Co. v. Public Service Commis­
sion, 248 U. S. 67 and Staub v. Baxley, 355 U. S. 313.

As in Staub, the mode of avoiding the constitutional 
question here presented also fails to meet a bare minimum 
of intrinsic fairness and reasonableness. This Court never 
has been precluded from examining the particular appli­
cation of a state procedural rule to assure that it is not 
in essence an evasion of the federal questions on frivolous 
grounds. Rogers v. Alabama, 192 TJ. S. 226, 230 and Van 
Dalia R. R. Co. v. Indiana, ex rel. South Bend, 207 U. S. 
359, 367.

Statem ent o f  the Facts

Despite State efforts to characterize the arrests as having 
nothing to do with the race of the petitioners, the fact 
remains that the arresting officer testified “one reason [for 
the arrest] was because they were Negroes” (R. 53). More­
over, respondent also concedes squarely in its brief the 
very fact it claims was not made out by the record, that 
the race of petitioners was the material factor in the arrest:

The fact that these defendants were adult Negro men 
on a children’s playground in a white residential area 
and that cars were beginning to assemble all contrib­
uted to a fear that there would be a breach of the 
peace if the defendants continued to use the play­
ground. (Brief in Opposition, p. 10.)

The fact that it is a crime in Georgia for Negroes to 
play on a white basketball court, although the statute gives 
no fair warning thereof, is what—in this context—renders 
the law vague. Petitioners were not warned in any manner 
of potential differential treatment solely because of race.



3

Respondent alleges another cause for the arrests: that 
petitioners violated the Recreational Department’s rules. 
This allegation distorts the record. The arresting officer 
did not “know the rules of the city’s recreational depart­
ment” (R. 52). He came to the basketball court solely be­
cause he was told by a “white lady” that some “colored 
people were playing in the basketball court” (R. 52). He 
had no information at that point that any infraction of 
playground rules was occurring (R. 52) nor did he testify 
that he saw any such infraction upon arriving at the scene.

Respondent states that the testimony of the superin­
tendent of the recreational department shows that peti­
tioners were arrested because they were “grown men” on a 
“children’s playground” and were dressed in street clothes.1 
This witness’s testimony is to the contrary. He testified 
that under the rules of the Recreation Department the 
basketball courts could be used by adults (R. 56) (and, 
therefore, the petitioners were not on a playground exclu­
sively for children), and that it would not be improper to 
wear street clothes in unsupervised play (R. 56). He fur­
ther testified that although the school used the area during 
school days, the courts could be used by anyone if children 
were not actually there (R. 58). The arrests were made at 
2:00 in the afternoon when the children were not present 
but were in school (R. 53). Mr. Hager’s general comments 
that the Recreation Department might employ a non­
discrimination policy could not change the character of the 
arrests as attempts to enforce segregation because his office 
had intervened in no way (He learned of the arrests after 
they had been made [R. 54]), and the arresting officer was 
not aware of the Recreation Department’s rules (R. 52).

1 Respondent’s brief, p. 10, 2nd paragraph and see p. 13, 2nd 
paragraph.



4

Even if the respondent had been able to establish that 
the one ground for the arrests was violation of playground 
rules, this could not sustain the judgment below in the face 
of clear rulings by this Court for one basis of the convic­
tion was race. And as stated in Williams v. North Carolina, 
317 U. S. 287, 292, “ [I]f one of the grounds for conviction 
is invalid under the Federal Constitution, the conviction 
would not be sustained.”

CONCLUSION

W herefore, fo r the foregoing reasons, it is respectfully 
submitted tha t the petition fo r w rit of certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
Leroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners



IN THE

OCTOBER TERM, 1961. 

No, 729.

JUDSON FORD, 
Petitioners,

VSb
STATE OF GEORGIA. 

BRIEF

Court of Georgia,

EUGENE COOK,
Attorney General of Georgia, 

G. HUGH EL HARRISON, 
Assistant Attorney General of

132 State Judicial Building, 
Atlanta 3 , Georgia,

AN D REW  J, RYAN, JR ., 
Solicitor General, Eastern Ju­

dicial C ircu it of Georgia, 
SYLVAN A. G A R FU N K EL, 

Assistant Solicitor General, 
Eastern Judicial C ircuit of 
Georgia,

NATHANIEL WRIGHT, CHARLES L. SMART, RASCO WHITE, 
JAMES W, THOMAS, BENJAMIN CARTER,

Of Respondent in Opposition to Granting of Writ of 
Certiorari to Review Judgment of Supreme

P. 0 , Address: Georgia,

P. 0 , Address:
Room 3 0 5 , Court House, 

Chatham County, 
Savannah, Georgia.

Attorneys for Respondent,

S t . L o u i s  L a w  P r i n t i n g  Co., I n c ., 415 N. E ighth Street, C Entral 1-4477.



TABLE OF OASES CITED.
Page

Cantwell v. Connecticut, 310 U. S. 300, 84 L. Ed. 1213-
1220 ......................................................................................................  12

Edelman v. California, 344 U. S. 357 ............................  11
Garner v. Louisiana, 7 Law. Ed. (2) 207, 216 ............  11
Henderson v. Lott, 163 Ga. 326 (2) (136 S. E. 403) . . .  10
Herndon v. Georgia, 295 U. S. 441 ..............................  11
Michel v. Louisiana, 350 U. S. 9 1 .................................. 11
Parker v. Illinois 333 U. S. 571 ............................ . 11
Staub v. City of Baxley, 355 U. S. 313.........................  11
Wolfe v. North Carolina, 364 U. S. 177.......................  11



IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1961.

No. 729 .

NATHANIEL WRIGHT, CHARLES L. SMART, RASCO WHITE, 
, JAMES W. THOMAS, BENJAMIN CARTER,

JUDSON FORD,
Petitioners,

VSi
STATE OF GEORGIA.

BRIEF
Of Respondent in Opposition to Granting of Writ of 

Certiorari to Review Judgment of Supreme 
Court of Georgia.

Respondent respectfully contests the statement of the 
question presented and the statement of facts as outlined 
by the petitioners. The petitioners have not given a suf­
ficiently complete resume of the record of the Brief of 
Evidence for the Court to determine the question of dis­
crimination on account of race.

We respectfully bring to the Court’s attention the testi­
mony of the Police Officer who made the arrest (R. 51). 
“ as a result of the conversation with this white lady we 
rode over to this Basket Ball Court we found around 
seven colored boys playing basket ball there on the Basket



__2 ___

Ball Court . . .  As to their dress, they were pretty well 
dressed at that time; some of them had on dress shirts, 
some of them had on coats—not a dress coat, but a jacket. 
I didn’t notice what particular type shoes they had on, 
as far as I know they didn’t have ‘tennis shoes’ on. I am 
familiar with the type of shoes that people wear when 
they play basket ball, they didn’t have that type of shoes 
on as well as I remember.

“ I think that these defendants ranged in age from 
23 to 32.

“ There is a school nearby this Basket Ball Court, 
it is located at Washington Avenue and Bee Road, I 
mean, at Washington Avenue and Waters. There is 
another school on 44th Street—there are two schools 
nearby; I believe they are both ‘grammar’ schools. 
I patrol that area and the children from these schools 
play there, they come there every day I believe, I be­
lieve they come there every afternoon when they get 
out of school, and I believe they come there during 
recess. The school, I believe, gets out about 2:30 in 
the afternoon, and this was around 2:00 o’clock.

“ When I came up to these defendants I asked them 
to leave; I spoke to all of them as a group when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an op­
portunity to leave. One of them, I don t know which 
one it was, came up and asked me who gave me orders 
to come out there and by what authority I came out 
there, and I told him that I didn’t need any orders to 
come out there, I believe the one that asked me that 

‘ is the third one there, sitting at the table in the Court
' Room here, the one there with the coat on, with the
1 red button on it. The children from the schools,

would have been out there shortly after that. The 
, purpose of asking them to leave was to keep down

i



trouble, which looked like to me might start—there 
were five or six cars driving around the park at the 
time, white people. They left only after they were 
put under arrest, they were put under arrest approx­
imately 5 to 10 minutes after I told them to leave— 
Officer Hillis is the one who put them under arrest— 
we called the police cruiser and it came and we put 
them in that. It seemed like to me that they were wel­
coming the arrests, because all of them piled into the 
car, Officer Hillis’ ear, at the time, and he had to stop 
them—Officer Hillis’ car did not carry any of them, 
the cruiser carried them in, they waited in the ear 
until the cruiser came, all seven of them, it was seven 
of them.”

The State questioned the bona-fides of these defendants 
playing basket ball or whether they were there to try 
and create an incident. Further examination of the ar­
resting officer revealed the following (R. 53):

“ I believe that most of them had on dress pants, 
as far as I can remember. I  have seen people playing 
basket ball, but I have never seen them come out 
dressed like that to play basket ball.”

In regard to whether these defendants were arrested 
solely because they were negroes playing in a park in a 
white area, the arresting officer testified as follows (R. 
53):

“ There have been colored children in Daffin Park, 
but I did not arrest those children, but I arrested 
these people because we were afraid of what was 
going to happen. Colored children have played in 
Daffin Park, and they have fished there.”

In order to develop what is the park playground policy, 
Carl Hager who identified himself as Superintendent of



4

the Recreational Department of the City of Savannah, 
was sworn and testified. We quote from the brief of his 
testimony (R. 54 and 55):

“ As superintendent I am over all of the playgrounds 
in the City of Savannah, Chatham County, Georgia; 
that includes Baffin Park and all the other parks that 
have playgrounds. These playgrounds are mostly in 
neighborhood areas. There are neighborhood areas 
where colored families live, and neighborhood areas 
where white people live, we try to establish them in 
that manner, and, then, there are certain areas where 
they are mixed to a certain extent. We have a play­
ground in the Park Extension, and that is a mixed 
area for white and colored—a white section and a 
colored section—-it is mostly white, but there are sev­
eral colored sections within several blocks, and they 
are much closer now than they used to he. Wells 
Park is what we call a border-area and that is a 
mixed area—one side is colored and one side is white. 
The Baffin Park area, mostly around that area is 
mostly white. It has occurred, from time to time, 
that colored children would play in the Baffin Park 
area and in the Park Extension area, hut no action 
has been taken, because it is legal, it is allowed, and 
nobody has said anything about it. I am familiar 
with the Baffin Park playground area, in fact, the of­
fice of the Recreational Department is in Baffin Park. 
That basket ball court is about a block from the of­
fice. I was advised that an arrest bad been made, but 
they had all gone when I was told about it and I 
did know why the arrests had been made. The play­
ground areas are basically for young children, say 15 
to 16 and under, along that age group, we give prior­
ity to the playground to the younger children over 
the grownups, it made no difference as to whether

t



they were white or colored. Any time that we re­
quested anyone to do something and they refused we 
would ask the police to step in, if we would ask them 
to leave and they did not we would ask the police to 
step in. We have had reports that colored children 
have played in the Park Extension but they were 
never arrested or told to leave.

“ We have had grown people to come out to Daffin 
Park and play soft-hall; we have soft-ball diamonds 
and also younger people play on them, but we try to 
regulate the times for playing on the diamonds so 
that there wall not be a conflict between the older peo­
ple and the younger ones, and we issue permits in all 
cases where we think there will be conflict, we try to 
regulate them. We do not have the Tennis Courts 
regulated at the present time, they are now on first 
come first serve basis, but we plan to regulate these.”

On cross-examination Mr. Hager said (R. 55):

“ I testified that if there was a conflict between the 
younger people and the older people using the park 
facilities the preference would be for the younger 
people to use them, but we have no objections to older 
people using the facilities if there are no younger 
people imesent or if they are not scheduled to be used 
by the younger people.”

He was also questioned as to whether they would allow 
colored citizens to play in a park in a white area. His 
answer was as follows (R. 56):

“ It has been the custom to use the parks separately 
for the different races. I couldn’t say whether or not 

. a permit would or would not be issued to a person 
of color if that person came to the office of the Recre- 

1 ational Department and requested a permit to play



—  6 —

on the courts, but I am of the opinion that it would 
have been, we have never refused one, the request 
never has been made.”

On further cross-examination he explained their rule 
in regard to age limits on basketball courts (R. 57):

“ There is no minimum or maximum age limit for 
the use of basketball courts, however, at the present 
time we have established a minimum—a maximum 
age limit of 16 years for any playground area. Pro­
gramming is not so readily understood by lay people, 
by age grouping is taken into consideration in pro­
gramming because we don’t want the older people 
competing with the younger people, and we don’t like 
to have them associating because we don’t think that 
a younger person should learn too much from the 
older person or vice versa, we don’t think it conducive 
to good community relations, the building of char­
acter and the proper traits for younger people, and 
I think the school systems have followed somewhat 
the same procedure in segregating them in age groups, 
such as the younger school groups, the junior highs, 
and the high schools, and it is for the same purpose 
that we regulate our programs according to age 
groups and, sometimes, sexes also, and all of this is 
in accordance with, basically, a planned program.”

On further redirect examination Mr. Hager explained 
the use of this particular playground at the particular 
time when the arrest was made (R. 57):

“ On school days these courts and the playground 
area at Daflin Park are available for only certain age 
groups and they are only used at that time of day 
by the schools in that vicinity, it is, more or less, left 
available for them, that is the way we have our rec­
reation set up.”



7

Mr. Hager then on further redirect examination ex­
plained the pattern of arranging playground areas in 
various neighborhoods (It. 57):

“ Most of our playground areas are arranged ac­
cording to the families living in that particular area, 
playgrounds where there are white families and play­
grounds where there are colored families—most of 
them are arranged in that manner according to the 
areas. We do feel this, that the playgrounds are 
established within a distance of one mile of the people 
who are expected to use them, and normally when 
we find that when a playground is established with 
that in mind that people who live within one mile of 
it will use it, so if we put one in a predominantly 
negro neighborhood, then, predominantly negroes 
would use it, and the same would be true for the 
whites, but, of course, we can’t always control that 
because we do not have the choice of locations where 
we would like to have them, and that is the reason 
why some could very easily become mixed areas, such 
as Park Extension, because that is within a mile of 
both white and colored, and that is the reason why 
both play in that area.

“ I don’t know whether or not we have a planned 
program arranged for the day that these arrests were 
made, I would have to check my records. We do not 
have parks in colored areas that are comparable in 
size or comparable in facilities to Daffin Park, but 
colored boys do fish in the pond at Daffin Park. The 
size of the facilities would be determined by the area. 
Cann Park is probably cur most complete area that 
is in a colored neighborhood, and on that we have 
a tennis court—and we use that court for basketball, 
we have swings, slides, soft ball field, a small practice 
field, which is also used for football, and it also has



a concrete spray pool, picnic tabic, ami a few other 
odds and ends of equipment, and it has a drinking 
fountain, and things of that nature, which would make 
it about as well equipped as any playground we have 
except for size.”

The key question was then asked on recross-examination 
by defendants’ attorney (B. 58), the question being “ If 
your planned program did not have the 23rd of January 
1961 set aside for any particular activity would it have 
been permissible to use this basketball court in Baffin Park 
in the absence of children ?” The answer being as follows:

“ I can’t very well answer that question because you 
have several questions in one. First, I would like to 
say that normally we would not schedule anything for 
that time of the day because of the schools using the 
total area there and, second, I would not know whether 
we had something scheduled without referring to my 
records. Now if the schools were not there and were 
not using it and we had no program planned we cer­
tainly would not have been concerned about other 
people using it. The schools use the area during 
school hours. The Parochial School uses it during 
recess and lunch periods and also for sport, as also 
the Lutheran School, and the public schools bring 
their students out there by bus and at various times 
during school hours all day long, we never know when 
they are coming, and they use Cann Park the same 
way, I  might add.

“ If it was compatible to our program we would 
grant a permit for the use of the basketball court in 
Daffin Park to anyone regardless of race, creed or 
color, however, at that time of day it would not be 
compatible to our program. If that basketball court 
was not scheduled it would be compatible with our

t



— 9 —

program for them to use it, and we would not mind 
them using it. If there was a permit issued there 
would be no objections as to race, creed or color.”

Officer 0. W. Hillis, who was also with Officer Thompson, 
the arresting officer, at the time of the arrest, corroborated 
the statement of Officer Thompson (R. 60) as follows:

‘‘I was on duty around two o’clock on the afternoon 
of the date in the vicinity of Baffin Park, here in 
Savannah, Chatham County, Georgia, at around that 
time I received some information from a white lady, 
as a result of that information I went with Officer 
Thompson, in a police automobile, to the basketball 
court in Daffin Park, here in Savannah, Chatham 
County, Georgia. When I arrived there I saw the 
defendants, they were playing basketball. Officer 
Thompson talked to them first, and then I talked to 
them. I asked them to leave, Officer Thompson had 
already asked them, I heard him ask them. They did 
not leave, and they did not stop playing until I told 
them they were under arrest. We called the wagon 
(cruiser). Officer Thompson told them that they would 
have to leave, he told them that at first, and they did 
have an opportunity to leave after he told them that. 
He asked them twice to leave, and then I asked them 
to leave after I saw they wasn’t going to stop playing, 
and when I asked them to leave one of them made 
a sarcastic remark, saying: ‘What did he say, I didn't 
hear him’, he was trying to be sarcastic. When I told 
them to leave there was one of them who was writing 
with a pencil and looking at our badge numbers. They 
all had an opportunity to leave before I arrested them, 
plenty of time to have left, but I told them to leave, 
they wouldn’t leave and I put them under arrest.”



i n

There was no evidence introduced by the petitioners 
that the testimony of the State’s witnesses was incorrect 
or false. The question presented to the Court by the peti­
tioners does not express a proper state of the record since 
the record shows that the defendants were not arrested 
solely for being negroes peacefully playing basketball in a 
public park customarily reserved for white persons.

The defendants were grown men ranging in age from 23 
to 32 years of age who went upon a playground in a public 
park during school hours, dressed in dress shirts, dress 
pants and wearing leather shoes. At this time, the ]olace 
was reserved for and had been used and was scheduled to 
be used by grammer school children from two nearby 
schools as part of their physical education program. The 
fact that these defendants were adult negro men on a 
children’s playground in a white residential area and 
that cars were beginning to assemble all contributed to a 
fear that there would be a breach of the peace if the de­
fendants continued to use the playground.

They were requested to leave, given every opportunity 
to do so but continued to play and to all appearances 
welcomed the arrests.

The petitioners give as the first reason for granting the 
writ that the Court below unreasonably refused to decide 
Federal questions which are properly reviewable by the 
Supreme Court. The Georgia Supreme Court held that 
under their rules the assignment of error on the judgment 
sentencing each defendant and on denial of their motion 
for a new trial which are the third and fourth grounds of 
the Bill of Exceptions were abandoned under the rule 
laid down in Henderson v. Lott, 163 Ga. 326 (2) (136 
S. E. 403) and other cases cited in their decision. The 
petitioners argue that the point was properly raised and 
briefed. It has been hold many times by this Supreme

<



11 —

Court that a State Court has the power to decide the 
proper method of preserving Federal questions and this 
determination will bind this Supreme Court. Herndon v. 
Georgia, 295 U. S. 441; Parker v. Illinois, 333 U. S. 571; 
Edelman v. California, 344 U. S. 357; Michel v. Louisiana, 
350 U. S. 91. In all of these eases this Court deferred to 
a state court’s determination of its own procedural rules.

We recognize that this Supreme Court will inquire into 
the adequacy of a decision on state procedural grounds 
to determine whether the procedural application involved 
was inconsistent with prior decided cases. We respect­
fully sho-w that this was the question that was decided in 
Staub v. City of Baxley, 355 U. S. 313 which is cited by 
the petitioners. In that case the petitioner was able to 
show the Court that in other cases the Georgia Supreme 
Court had ruled differently in regard to the procedural 
rule that it used in the Staub case, the petition thus in­
voked a question of discrimination against Staub. In the 
recent case of Wolfe v. North Carolina, 364 U. S. 177, this 
Court again affirmed the doctrine.

Petitioners have not cited to this Court one Georgia 
case to show that the rule laid down in Henderson v. Lott, 
supra, has been inconsistently applied. We therefore feel 
that under the rules of this Court, this question has been 
finally disposed of in the Supreme Court of Georgia.

In sub-paragraph B, on reasons for granting the writ, 
petitioners state the Statute is in violation of rights 
granted by the Fourteenth Amendment on the grounds it 
was too vague to put them on notice that the acts par­
ticipated in were criminal.

In the recent case of Garner v. Louisiana, 7 Law. Ed. 
(2) 207, 216 this Supreme Court held that: “ We are 
aware that the Louisiana Courts have final authority to 
interpret and where they see fit, to reinterpret that state’s



—  12

legislation.” However, in that ease the Supreme Court 
of Louisiana had not finally determined the question in­
volved. That case also involved the interpretation of a 
breach of the peace statute. The Supreme Court also 
said at page 215: “ We, of course are bound by a state’s 
interpretation of its own statute and will not substitute 
our judgment for that of the state’s when it becomes 
necessary to analyze the evidence for the purpose of de­
termining whether that evidence supports the findings of 
a state court.”

To be guilty of violation of the Georgia Statute, three 
things are necessary: (1) There must be two or more per­
sons assembled; (2) the purpose must be for disturbing 
the public peace or committing any unlawful act; (3) they 
shall not disperse on being commanded to do so by a 
Judge, peace officer, etc.

This Supreme Court has also held in Cantwell v. Con­
necticut, 310 U. S. 300, 84 L. Ed. 1213-1220 that:

“ One may be guilty of the common law offense of 
breach of the peace if he commits acts or makes state­
ments likely to provoke violence and disturbance of 
good order, even though no such eventuality be in­
tended.”

Thus it is not necessary to show whether the petitioners 
actually intended to create a threat of the breach of the 
peace to convict them. But it was necessary for the prose­
cution to show that more than one person was involved; 
that there was a threatened breach of the peace or an 
assembly for the commission of any unlawful act, and 
that they refused to disperse upon being requested to do 
so by the police officer. To make this act criminal under 
the Georgia Statute, all three of these facts must be pies- 
ent. The fact that they shall be given the opportunity to

i



— 13

disperse is an additional safe-guard to prevent a person 
from being arrested at the whim of a police officer.

We have quoted extensively from the Brief of Evidence 
in order to thoroughly show the Court the circumstances 
under which these arrests were made.

The petitioners have consistently tried to argue that 
the sole reason for their arrests was because they were 
negroes, and that no negroes would be allowed in the 
park. The uncontradicted evidence of the police officers 
showed that negro children had played in the park and 
had not been disturbed. The Superintendent of the Recrea­
tional Department of the city testified that negro children 
have played in Baffin Park and in the Park Extension 
and were never arrested or told to leave on the grounds 
they were colored. The recreational superintendent fur­
ther stated the grounds for asking these defendants to 
leave was because they were adults and that priority for 
use of the playground was given to children over grown­
ups, and it made no differences whether they were white 
or they were colored. The superintendent also stated if 
the basketball court was not scheduled, it would be com­
patible with their program for them to use it, and they 
would not mind them using it and there would be no ob­
jection raised as to race, creed or color. Yet in view of 
this sworn testimony, without a thread of evidence to prove 
that the witnesses were not telling the truth, these peti­
tioners would have this Court believe that they were being 
denied the right to use this park because of their race.

What these petitioners would have this Court find is 
that they constitute a special group entitled to special 
privileges which other people, similarly situated, would 
not have. This Court has held that no one can be denied 
use of a public park because of his race, but certainly 
restrictions as to age without regard to race with a reason-



— 14 —

able explanation why such rules have been promulgated, 
can be enforced against these defendants in the same man­
ner as they could have been enforced against any other 
adults who may have come upon the playground at the 
same time of day and refused to leave when requested to 
do so by police officers.

We respectfully request that the writ of certiorari be 
denied.

Respectfully submitted,

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON, 
Assistant Attorney General of 

Georgia,
P. 0. Address:

132 State Judicial Building, 
Atlanta 3, Georgia,

ANDREW J. RYAN, JR,, 
Solicitor General, Eastern Ju­

dicial Circuit of Georgia,

SYLVAN A. GARFUNKEL, 
Assistant Solicitor General, 

Eastern Judicial Circuit of 
Georgia,

Attorneys for Respondent.
P. 0. Address:

Room 305 Court House, 
Chatham County, 

Savannah, Georgia.

t



I n  t h e

Ihtpmne (Emtrt nf tit? llniuh Blntzs.
O ctober  T e r m , 1961 

N o .....................

.     ---------- -— .... ... ®

N a t h a n ie l  W r ig h t , C h a r les  L. S m art , R asco W h it e , 
J am es W . T h o m a s , B e n ja m in  C arter , J udson  F ord,

Petitioners,
— v .—

f State of G eorgia .

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
Constance Baker Motley 
L eroy- D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners



TABLE OF CONTENTS
PAGE

Citations to Opinion Below ..........................................  1

Jurisdiction .....................................   1

Questions Presented .....................................................  2

Constitutional and Statutory Provisions Involved ..... 2

Statement ................................................    2

How the Federal Questions Were Raised and Decided 
Below ...........................................................................  5

Reasons for Granting the Writ ...................................  7
A. Federal Questions Which the Court Below Un­

reasonably Refused to Decide Are Properly 
Reviewable by This Court ................................ 7

B. Petitioners Were Denied Rights Guaranteed by
the Fourteenth Amendment Because They Were 
Not Put on Notice by the Statute That the Acts 
They Participated in Were Criminal .............. 7

C. Petitioners’ Convictions Denied Due Process
of Law in That There Was No Evidence of the 
Essential Elements of the Crime Charged......  12

Con clu sio n  ..........................................................................................  13

Appendix :

Opinion in the Supreme Court of Georgia (in 
Gober Case) ......................................................... la

Judgment ................................................................ 9a
Order Denying Application for Rehearing ..........  10a



11

Table of Cases
page

Cantwell v. Connecticut, 310 IT. S. 296 ..................... 11
Central U. Telegraph Co. v. Edwardsville, 269 IT. S.

190 ..............................................................................  9
Connally v. General Construction Co., 269 U. S. 385 .... 10
Detige v. New Orleans City Park Improvement Assn.,

358 U. S. 54 ............................................................... 11
First Natl Bank v. Anderson, 269 U. S. 341.................  7
Garner v. Louisiana, 7 L. Ed. 207 (1961) ..................... 12
Hague v. Committee for Industrial Organ., 307 U. S.

496 .......................................................................    11
Kunz v. New York, 340 U. S. 290 ...............................  11
Lawrence v. Mississippi, 286 U. S. 276 ........................  7
Lovell v. Georgia, 303 IT. S. 444 ...................................  11
Mayor and City Council of Baltimore v. Dawson, 350 

U. S. 877 .....................................................................  11
Nash v. U. S., 229 U. S. 373 ..........................................  10
Saia v. New York, 334 U. S. 558 ...............................  11
Seaboard Airline By. v. Watson, 287 IT. S. 86 ............... 9
Sessions v. State, 3 Ga. App. 13, 59 S. E. 196 ............  8
Staub v. Baxley, 355 U. S. 313......................................  9
Thompson v. City of Louisville, 326 IT. S. 199.............. 12
U. S. v. Clark Brewer, 139 U. S. 278 .......................... 11
Winters v. New York, 333 U. S. 507 .......................... 10

Statute

Code of Georgia, Section 26-5301 .................................  2

1



I n the

Ih tiin w  (Emtrt nf tip lUutrd Hiatus
October T erm, 19G1 

No...............

----------  ------------------------— — -----------------------------------------*

Nathaniel W right, Charles L, Smart, Rasco W hite, 
J ames W. T homas, Benjamin Carter, J udson F ord,

Petitioners,
— v . —

State of Georgia.
-------------- ------------------------------------------------------------ -~>

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia entered 
on November 9, 1961,

Citation to Opinion Below

The opinion of the Supreme Court of Georgia is reported 
in 122 S. E. 2d 737, and is set forth in the Appendix hereto, 
infra p. la, rehearing of which was denied, November 21, 
1961.

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered on November 9, 1961 (R. 75); Appendix p. 9a, 
infra. Rehearing was denied November 21, 1961 (R. 80); 
Appendix p. 10a, infra. Jurisdiction of this Court is in­
voked pursuant to 28 U. S. C. §1257(3), petitioners having 
asserted below and claiming here, denial of rights, privi­
leges, and immunities secured by the Fourteenth Amend­
ment to the Constitution of the United States.



2

Question Presented

Whether the conviction of the petitioners for unlawful 
assembly denied to them due process of law under the 
Fourteenth Amendment where they were convicted for be­
ing Negro and peacefully playing basketball in a munic­
ipally owned park customarily reserved for white persons, 
and the criminal statute under which they were convicted 
gave no notice that this constituted the crime of unlawful 
assembly.

C onstitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves Code of Georgia, Section 
26-5301:

“Unlawful Assemblies—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, 
justice, sheriff, constable, coroner or other peace of­
ficer, shall be guilty of a misdemeanor.”

Statem ent

Petitioners, six Negro young men, were arrested for 
“unlawful assembly”—assembling “for the purpose of dis­
turbing the public peace or committing any unlawful act 
and . . . not dispers(ing) on being commanded . . .”—in 
the course of peacefully playing basketball in Daffin Park, 
Savannah, Georgia, a park in a “white” area (R. 56). 
“One reason [for the arrest] was because they were

t



3

Negroes” (R. 53). “It has been the custom to use the parks 
separately for the different races” (Ibid.). Colored chil­
dren have played in Baffin Park, but not basketball (R. 53). 
There was no basketball court, as such, in any Negro park 
area until January 23, 1960 (R. 58). An arresting officer 
testified: “the defendants were playing basketball. They 
were not necessarily creating any disorder, they were just 
‘shooting at the goal’, that’s all they were doing, they 
wasn’t disturbing anything” (R. 61).

The case first came to police “attention when this white 
lady had this conversation with us, the lady who told us 
that colored people were playing in the Basket Ball Court 
down ‘there at Daffin Park, and that is the reason I went 
there, because some colored people were playing in the 
park. I did not ask this white lady how old these people 
were. As soon as I found out these were colored people 
I immediately went there” (R. 52). The officer “ . , . ar­
rested these people for playing basket ball in Baffin Park. 
One reason was because they were negroes” (R. 53). At 
the time “ [t]hey were doing nothing besides playing basket 
ball, they were just normally playing basket ball . .
(R. 53). “Under ordinary circumstances I [the officer] 
would not arrest boys for playing basketball in a public 
park” (R. 52).

Upon arrival the police first requested petitioners to 
leave. A petitioner asked who had ordered the police to 
the park (R. 51), to which an officer replied that they 
needed no orders (Ibid.). The purpose of the police in 
asking petitioners to leave was “to keep down trouble 
which looked to me [an officer] might start—there were 
five or six cars driving around the park at the time, white 
people” (R. 52) which was, however, “ . . . not . . . unusual 
traffic for that time of day” (R. 53).



4

The Superintendent of the Recreational Department of 
Savannah testified that “we issue permits in all cases where 
we think there will be conflict, we try to regulate them” 
(E. 55), and that “if there was a conflict between the 
younger people and the older people using the park facil­
ities the preference would be for the younger people to use 
them, but we have no objections to older people using the 
facilities if there are no younger people present or if they 
are not scheduled to be used by the younger people” 
(It. 55). But “there is no regulation for playing on a Court 
when it is not in use and there is no one around” (R. 57).

The evidence demonstrated no “conflict” (R. 55), and 
that there was “no one around” (R. 57). Grownups do use 
Daffm Park at certain times and under certain conditions. 
“[Gjrownups could use [the basketball courts] if there was 
no other need for them” (R. 56). “ [N]one of the children 
from the schools were there at that particular time” (R. 53).

Persons playing basketball would not have to wear any 
particular uniform if playing in an unregulated, unsuper­
vised program; it would be consistent with Park Depart­
ment policy to allow persons to wear ordinary clothing on 
the courts if they so chose (R. 56). Petitioners were well 
dressed in street clothing (R. 60).

While the Superintendent did not know whether the 
Department “had a planned program arranged for the day 
that these arrests were made, . . . normally they would 
not schedule anything for that time of the day because of 
the schools using the totals area there . . . ” However, 
“if the schools were not there and were not using it and 
we had no program planned we certainly would not have 
been concerned about other people using it” (R. 58). In 
any event, the arrest and order to disperse were, in fact, 
not made because of some violation of the rules of the 
City Recreational Department because the arresting of-

i



ficer testified he didn’t “know the rules of the City Rec­
reational Department” (R. 52).

How the Federal Questions Were Raised 
and Decided Below

Prior to trial petitioners interposed a general demurrer 
in the City Court of Savannah raising four constitutional 
issues: Section 26-5301 of the Code of Georgia was so 
vague that they were not put on notice of what criminal 
act they had committed; that the statute did not sufficiently 
define disturbing the peace; and that as construed it was 
so vague as to place unlimited authority in the hands of 
police officers to arbitrarily designate acts to be held as 
criminal (R. 19-21) all in violation of the due process clause 
of the Fourteenth Amendment; and that the statute wTas 
applied to petitioners to enforce racial discrimination on 
governmentally owned facilities contrary to the equal pro­
tection clause of the Fourteenth Amendment to the United 
States Constitution. The trial judge overruled the demurrer 
on each and every ground (R. 21),

After the trial judge sentenced each of the petitioners, 
motion for new trial was filed (R. 26-27) in which the peti­
tioners again objected that they were not fairly and ef­
fectively warned in Section 26-5301 Code of Georgia that 
their acts were prohibited, that the statute as construed 
was a delegation of arbitrary and capricious power to peace 
officers in violation of the due process clause of the Four­
teenth Amendment.

The tidal judge also overruled the motion for new trial 
on each and every ground (R. 29).

Petitioners on appeal to the Supreme Court of Georgia 
assigned as error in the bill of exceptions the overruling of 
the general demurrer and the motion for new trial (R. 1-8).



6

The Supreme Court of Georgia refused to consider the 
constitutional issues raised by objection to the overruling 
of the motion for new trial, because it deemed such ob­
jection abandoned:

“In their hill of exceptions the defendants assign 
error on the judgment sentencing each defendant 
(fourth ground) and. on the denial of their motion 
for a new trial (third ground). However, in their brief 
to this court they completely omitted the fourth ground 
and merely referred to the third ground by asking: 
‘Did the court commit error in overruling plaintiff’s 
in error motion for new trial V There was no argument, 
citation of authority, or statement that such grounds 
were still relied upon. Therefore, the applicable rule, 
as laid down in Henderson v. Lott, 1G3 Ga. 326(2) 
(136 SE 403), is: ‘Assignments of error not insisted 
upon by counsel in their briefs or otherwise will be 
treated by this court as abandoned’” (R. 70).

The general demurrer also was held to be the improper 
means to raise two contentions that the statute had been 
applied to reinforce racial segregation of government facil­
ities in violation of the equal protection clause of the Four­
teenth Amendment (R..71).

Under the demurrer the court below passed upon the 
only constitutional issue it held properly preserved, and 
ruled that the statute was not so vague as to deprive the 
petitioners of any constitutional rights under the I our- 
teenth Amendment:

“The United States Supreme Court has held that 
a statute is not unconscionably vague where its pro­
visions employ words with a well-settled common-law 
meaning” (R. 72).

“Here the term ‘disturbing the public peace’ is of 
generic common-law origin” (R. 72).



7

“The language of the Code section in question is 
pronounced in terms so lucid and unambiguous that 
a person of common intelligence would discern its 
meaning and apprehend with what violation he was 
charged” (E. 73).

Nor was there held to be any unconstitutional delegation 
of authority to a peace officer:

“The last contention (5) assigned, that the Code 
section confers untrammelled and arbitrary authority 
upon the arresting officer, has no merit since we have

i determined that the statute has a clear-cut standard 
to apprise one of what constitutes a criminal act and 
thus to guide the conduct of such officer” (R. 74).

The judgment was affirmed.

Reasons for Granting the Writ

A. Federal Questions Which the Court Below Unreasonably 
Refused to Decide Are Properly Reviewable by This Court.

The question of whether the statute involved was so 
vague as not reasonably to apprise petitioners that their 
acts constituted an unlawful assembly in violation of the 
due process clause of the Fourteenth Amendment was 
properly before the Court below and, in affirming, the Su­
preme Court of Georgia disposed of petitioners’ conten­
tions adversely in a manner which presents them properly 
to this Court for review. Whether a Federal question was 
sufficiently and properly raised in the state court is itself 
a federal question, and this Court is not concluded by the 
view7 taken below. First National Bank v. Anderson, 269 
U. S. 341. Federal rights are denied as well by a refusal 
of a state court to decide questions as erroneous decision 
of them. Lawrence v. Mississippi, 286 U. S. 276.



8

The question of vagueness presented by this petition 
was presented and pressed at successive stages of the litiga­
tion below, on demurrer, on motion for new trial, and mo­
tion for acquittal. While the State Supreme Court held 
that the issue as presented by demurrer was limited to 
the statute and accusations on their face, this, of course, 
cannot be alleged in connection with the motion for new 
trial which is designed to bring before the court the evi­
dence at trial. Sessions v. State, 3 Ga. App. 13, 59 S. E. 196. 
The issue as raised by the motion for new trial, however, 
was held by the court below to have been waived because 
of the manner in which the point was briefed. Petitioners, 
however, have filed here certified copies of all briefs in the 
Supreme Court of Georgia which make it clear that the 
issue of vagueness as raised by the motion for new trial 
was in fact squarely presented to the Supreme Court of 
Georgia. See Brief of Plaintiffs in Error, p. 6 (“Issues 
of Law . . .  (3) Did the Court Commit Error in Overruling 
Plaintiffs-in-Error Motion for New Trial!”). A common 
argument was submitted in support of the vagueness ob­
jection as it was raised in various stages of the case. (Id. 
at pp. 7-10). The brief was constructed in the form re­
quired by the Rules of the Georgia Supreme Court, Ga. 
Code Ann. 24-4515. While the brief commenced by stating 
“the principal question raised is whether or not the trial 
judge committed error in overruling the general demurrer,” 
this was not claimed to be the only question raised. The 
attack on vagueness as raised under the motion for new 
trial was presented in the argument with clarity and 
specificity. The evidence was discussed in plaintiff-in­
error’s brief. The brief of defendant in error, a certified 
copy of which has also been filed here, is replete writh dis­
cussion of the evidence and met plaintiff-in-error’s argu­
ments head on.



9

The essential purpose of the requirement that federal 
questions be raised in accordance with state procedure is 
to “enable the court as well as opposing counsel, readily 
to perceive what points are relied on”, Seaboard Air Line 
Ry. v. Watson, 287 U. S. 86, The Georgia courts, both trial 
and appellate, and opposing counsel, were certainly ap­
prised in. due time with particularity of the petitioners’ 
constitutional objections. It is only by a most restrictive 
and unreasonably strained construction that formal “judi­
cial ignorance” can be made out. A construction of the 
state court as to the proper method of preserving federal 
questions will bind the Supreme Court “unless so unfair 
or unreasonable in its application to those asserting a 
Federal right as to obstruct it.” Central U. Telegraph Co. 
Edwardsville, 269 U. S. 190, 195. As Mr. Justice Whittaker 
stated in Stanb v. Baxley, 355 IT. S. 313, 320, the finding 
of waiver of federal questions may not be based on Avholly 
inadequate state grounds which would “force resort to 
an arid ritual of meaningless form.” The decision below 
would make a greater fetish of the ritual of form than was 
demanded in Staub.

B. Petitioners Were Denied Rights Guaranteed, by the Four­
teenth Amendment Because They W ere Not Put on Notice 
by  the Statute That the Acts They Participated in Were 
Criminal.

This case involves the substantial question of whether 
a state may coerce conformity to a state pattern of segrega­
tion of the races on governmentally owned and operated 
recreational facilities by construing a broad and ambiguous 
criminal statute so as to make the use of these facilities 
by Negroes on the same basis as whites, a criminal act.

A statute, and any construction of it, must meet a mini­
mum standard of prior warning of what is criminal con­
duct to avoid a charge of denial of due process of law



10

through vagueness. The applicable rule is stated in Con­
nolly v. General Construction Company, 2G9 U. S. 385, 391:

“The dividing line between what is lawful and un­
lawful cannot be left to conjecture. The citizen cannot 
be held to answer charges based upon penal statutes 
whose mandates are so uncertain that they will rea­
sonably admit of different constructions. A criminal 
statute cannot rest upon an uncertain foundation. The 
crime and the element constituting it, must be so clearly 
expressed that the ordinary person can intelligently 
choose, in advance, what course it is lawful for him to 
pursue. Penal statutes prohibiting the doing of certain 
things, and providing a punishment for their violation, 
should not. admit of a double meaning that the citizen 
may act upon one conception of its requirements and 
the Courts upon another.”

Further, the standards of certainty in criminal cases 
must of necessity be higher than in those depending prima­
rily upon civil sanctions for enforcement, Winters v. New 
York, 333 U. S. 507. In the instant case, petitioners could 
not possibly have anticipated that as Negroes, peacefully 
playing basketball in a municipally owned park is a crim­
inal assembly to disturb the peace, as defined in the statute. 
The court below rejects the vagueness argument because 
the statute employs words with a well-settled common law 
meaning. However, in all of the cases cited to support 
this proposition the defendants’ acts were at least reason­
ably within the long-established meaning of the statute. 
The only question in these cases was one of degree, the 
law is full of instances where a man’s fate depends on
his estimating rightly, that is, as the jury subsequently 
estimates it, some matter of degree.” Nash v. U. 8., 229 
U. S. 373, 377. That Negroes would be charged with a 
criminal act for participating in the same activity deemed



11

lawful for whites on government property is not a question 
of degree, for it is not even colorably predictable by read­
ing the statute under which petitioners were convicted.

A statute which does not lay down recognizable standards 
against which the discretion of those who administer it may 
be measured is unconstitutional and void. Lovell v. Georgia, 
303 U. S. 444. As the Georgia Court has construed the 
statute, a police officer has unlimited power to designate 
any peaceful gathering as tending to disturb the peace. 
In this case he so chose to designate the act of Negroes 
playing basketball on a publicly owned court usually re­
served for whites. Where in fact rankly unequal admin­
istration is sanctioned under the authority of a statute, 
such statute is vague on it's face or as applied for lack of 
guide lines to prevent such arbitrary enforcement. Hague 
v. Committee for Industrial Organization, 307 U. S. 496.

Petitioners had a right under the Fourteenth Amendment 
to utilize government facilities on the same basis as other 
citizens. They reasonably should have anticipated that the 
constitution would have been followed, rather than an un­
anticipated construction of Georgia law. Cf. Mayor and 
City Council of Baltimore v. Dawson, 350 U. S. 877. They 
could not have been deprived of access to any part of the 
municipal park even by a direct statute proscribing segre­
gated areas. Deliege v. New Orleans City Park Improve­
ment Association, 358 U. S. 54. This court has in many 
instances held that a statute is even more amenable to an 
attack of vagueness where its construction creates a danger 
of encroachment on constitutional rights and threatens to 
deter the exercise of these rights. Saia v. New York, 334 
U. S. 558; Cantwell v. Connecticut, 310 U. S. 296; Kunz v. 
New York, 340 U. S. 290.

As was said in U. S. v. Clark Brewer, 139 U. S. 278, 
“If the language of a statute is so general and indefinite



as to embrace not only acts properly and legally punishable 
but others not 'punishable, it will be voided for uncertainty.” 
Here, the State of Georgia not only denies a constitutional 
right but attaches criminal sanctions to its exercise. This 
is accomplished through a novel construction of broad 
statute which in no wise gives prior warning that the 
recreational activities of Negroes in areas reserved for 
whites by the government are criminal acts.

C. Petitioners’’ Convictions Denied Due Process of Law in That 
There Was No Evidence of the Essential Elements of the 
Crime Charged.

The question presented below and brought to this Court, 
i.e., whether the statute under which petitioners were con­
victed is unconstitutionally vague in that it did not apprise 
them that being Negro and playing basketball in a white 
park constituted unlawful assembly is but another way of 
presenting the constitutional objection to this conviction 
under the doctrine of Thompson v. City of Louisville, 326 
TJ. S. 199. In Thompson as in Garner v. Louisiana, 7 L. ed. 
207 (1961), and any other case making the due process 
objection found in those cases, one convicted of crime 
without a shred of evidence that his activities were crim­
inal under a statute always possesses a corollary con­
stitutional objection that the statute did not and could not 
put him on notice that his conduct was criminal. Thus of 
necessity the judgments below complained of in this case 
are also constitutionally faulty for other reasons—dis­
cussed in Thompson—well established in the jurisprudence 
of our Constitution.

It is essential that this court grant certiorari to insure 
that its previous decisions prohibiting racially discrim­
inatory action in violation of the due process and equal 
protection clauses of the Fourteenth Amendment will not 
be indirectly undermined or subverted.



13

CONCLUSION

W herefore, for the foregoing reasons, it is respectfully 
submitted that the petition for w rit of certiorari should be 
granted.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners



—67—
APPENDIX

SUPREME COURT OF GEORGIA
Case No. 21430

-------- --- ---------------------- — ----------- ---------------- — — ----------- —

W eight e t  al.,

-v.-

T h e  State.
---------------------------------------------------------- .*^§35*.--------------------------------------------------------

Decided November 9, 1961.

By the Court:

1. A mere recital in the brief of the defendants of the 
existence of an assignment of error, without argument or 
citation of authorities in its support, and without a state­
ment that it is insisted upon by counsel, is insufficient to 
save it from being treated as abandoned.

2. It is not error in a criminal case for the trial judge to 
refuse to direct a verdict of acquittal.

3. A demurrer which seeks to add facts not apparent 
on the face of the accusation must fail as a speaking de­
murrer.

4. A Code section utilizing terms with an established 
common-law meaning, and which is itself of common-law 
origin, is sufficiently definite to apprise a person of com­
mon intelligence with a standard which he may use in 
determining its command; this more than satisfies the re­
quirements of due process.



2a

5. An officer is not vested with arbitrary authority when 
he only makes an arrest, and it is left to judicial processes 
to ascertain if the described components of a criminal act 
are present.

Submitted October 9, 1961—Decided November 9, 1961—- 
Rehearing denied November 21, 1961.

Unlawful assembly; constitutional question. Savannah 
City Court. Before Judge Alexander.

— 68—

The defendants, Nathaniel Wright, Charles L. Smart, 
Roseo (ef) White, James W. Thomas, Benjamin Carter, 
and Judson Ford, were brought to trial in the City Court 
of Savannah for violation of Code § 26-5301 which reads: 
“Unlawful assemblies.—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not dis­
perse on being commanded to do so by a judge, justice, 
sheriff, constable, coroner, or other peace officer, shall be 
guilty of a misdemeanor.” The gravamen of the offense, 
as detailed in the accusation, was: “In that the said de­
fendants did assemble at Baffin Park for the purpose of 
disturbing the public peace and refused to disburse (sic) 
on being commanded to do so by sheriff, constable, and 
peace officer, to wit: W. H. Thompson and G. W. Hillis.”

Before their arraignment and before pleading to the 
accusation, the defendants filed a general demurrer to the 
accusation, contending that for five enumerated reasons the 
Code section above cited is unconstitutional. The trial 
judge overruled the general demurrer, and evidence was 
then introduced by the State at the conclusion of which 
counsel for the defendants made a motion to acquit. After 
the argument of counsel, in the absence of the jury, the



3a

trial judge denied the motion to acquit. The jury was re­
called and, after argument of counsel and the charge of the 
court, returned a verdict of guilty. Whereupon the trial 
judge sentenced each defendant to pay a fine of $100 or 
to serve five months imprisonment, with the exception of 
the defendant Wright, who was sentenced to pay a fine 
of $125 or to serve six months imprisonment.

The defendants filed a motion for new trial which was 
subsequently overruled on each and every ground. The

—6 9 -
trial judge then issued an order permitting the defendants’ 
cases to be consolidated since all the cases were predicated 
upon identical circumstances and facts, and involved the 
same defensive pleas and the same questions of law.

The defendants excepted and assign error on the overrul­
ing of their general demurrer, the refusal by the trial judge 
to direct a verdict of acquittal, the denial of their motion 
for a new trial, and on the judgment sentencing the de­
fendants. Each of these assignments of error will be 
considered in order inverse from that in which it is above 
presented.

E. H. Gadsden, B. Clarence Mayfield, for plaintiffs in 
error.

Andrew J. Ryan, Solicitor-General, Sylvan A. Gar- 
funkel, contra.

—70—
Q uilliajst, Justice: 1. In their bill of exceptions the de­

fendants assign error on the judgment sentencing each de­
fendant (fourth ground) and on the denial of their motion 
for a new trial (third ground). However, in their brief 
to this court they completely omitted the fourth ground 
and merely referred to the third ground by asking: “Did 
the court commit error in overruling plaintiff’s in error



4a

motion for new trial!” There was no argument, citation 
of authority, or statement that such grounds were still 
relied upon. Therefore, the applicable rule, as laid down in 
Henderson v. Lott, 1G3 Ga. 326 (2) (136 SE 403), is: 
“Assignments of error not insisted upon by counsel in 
their briefs or otherwise will be. treated by this court as 
abandoned. A mere, recital in briefs of the existence of an 
assignment of error, without argument or citation of au­
thorities in .its support, and without a statement that it is 
insisted upon by counsel, is insufficient to save it from be­
ing treated as abandoned.” Almand v. Pate, 143 Ga. 711 
(1) (85 SE 909); Head v. Lee, 203 Ga. 191, 202 (45 SE 2d 
666); The B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE 2d 
790).

2. The second ground upon which the defendants rely is 
that the trial judge erred in failing to direct a verdict of 
acquittal for the defendants at the conclusion of the State’s 
evidence. It is not error in a criminal case to refuse to 
direct a verdict of not guilty. Winford v. State, 213 Ga. 
3S6, 397 (99 SE 2d 120); Williams v. State, 206 .Ga. 107 
(10) (55 SE 2d 589); Coleman v. State, 211 Ga. 704 (2) 
(88 SE 2d 381); Baugh v. State, 211 Ga. 863 (1) (89 SE 
2d 504).

3. The first ground in the bill of exceptions is that the 
trial judge erred in overruling their general demurrers to 
the accusation. The defendants urge five contentions as to 
why Code § 26-5301, per se and as applied, violates rights

—71—
secured to them by the Constitutions of the United States 
and of Georgia. Contentions (3) and (4) attack the Code 
section in question as unconstitutional as applied, since 
it was used to enforce racial discrimination, and as uncon-



5a

stitutional in that the arrest was pursuant to the policy, 
custom, and usage of the State of Georgia, which compels 
segregation of the races.

Neither of these two contentions can be ascertained from 
an examination of the accusation. A demurrer may prop­
erly attack only those defects which appear on the face of 
the petition, indictment, or, in this ease, accusation. A 
demurrer which seeks to add facts not so apparent or to 
supply extrinsic matters must fail as a speaking demurrer. 
Jackson v. State, 64 Ga. 344; Arthur v. State, 146 Ga. 827 
(92 SE 637). See also Walters v. State, 90 Ga. App. 360, 
365 (83 SE 2d 48).

4. Contentions (1) and (2) attack the Code section, on 
its face, as violative of due process of law guaranteed by 
the Fourteenth Amendment to the United States Con­
stitution and by the Georgia Constitution, arguing that 
said Code section is so vague that the defendants are not 
placed on notice as to what criminal act they have allegedly 
committed, rendering it impossible to answer the charge 
or to make legal defense, and unconscionably vague in that 
nowhere in the statute does there appear a definition of 
disturbing the public peace or committing any unlawful 
act.

Since the defendants were charged only with “disturbing 
the public peace,” the alleged vagueness of “committing 
any unlawful act” need not be considered. Chaplinskv 
v. New Hampshire, 315 U. S. 568, 572 (62 S. Ct. 766, 86 
LE 1031); Whittle v. Jones, 198 Ga. 538, 544 (32 SE 2d 
94); Kryder v. State, 212 Ga. 272, 274 (91 SE 2d 612).

—72—
Neither does the defendants’ purported attack on the Code 
section under the Georgia Constitution raise any meritori­
ous issue. In order to raise a question as to the constitu-



6 a

tionality of a statute, the provision of the Constitution 
alleged to have been violated must be clearly specified and 
designated, reference being made to the part, paragraph, 
or section. Clements v. Powell, 155 Ga. 278, 280.(8) (166 
SE 624); Inlaw v. State, 168 Ga. 377 (1) (147 SE 881); 
Johns v. State, ISO Ga. 187, 188 (3) (178 SE 707); Manu­
facturers Trust Co. v. Wilby-Kincey Service Corp., 204 Ga. 
273, 274 (49 SE 2d 514); Krasner v. Rutledge, 204 Ga. 380, 
382 (49 SE 2d 864).

The United States Supreme Court has held that a 
statute is not unconscionably vague where its provisons 
employ words with a well-settled common-law meaning 
(Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 108-111, 29
S. Ct. 220, 53 LE 417); Nash v. United States, 229 U. S. 
373, 376-378, 33 S. Ct. 7S0, 57 LE 1232; Hygrade Pro­
vision Co. v. Sherman, 266 U. S. 497, 502, 45 S. Ct. 141, 69 
LE 402), approved in Connally v. General Const. Co., 269 
U. S. 385, 391 (46 S. Ct. 126, 70 LE 322); or is not couched 
in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its ap­
plication. Whitney v. California, 274 U. S. 357, 368 (47 
S. Ct. 641, 71 LE 1095); Fox v. Washington, 236 U. S. 
273, 276-278 (35 S. Ct. 383, 59 LE 573); Miller v. Strahl, 
239 U. S. 426,434 (36 S. Ct. 147, 60 LE 364); Omaeehevarria 
v. Idaho, 246 U. S. 343, 348 (38 S. Ct. 323, 62 LE 763); 
United States v. Alford, 274 U. S. 264, 267 (47 S. Ct. 591, 
71 LE 1040).

Here the term ‘‘disturbing the public peace” is of generic 
common-law origin. Faulkner v. State, 166 Ga. 645, 665 
(144 SE 193); 11 C. J. S. 817, § 1. “Disturbing the peace” 
or its synonym “breach of peace,” has long been inherently 
encompassed in our law and is prevalent in the various



—7 3 -
jurisdictions. 11 C. J. S. 817 et seq., § 2 et seq.; 8 Am. Jur. 
834 et seq., § 3 et seq.

Further, the crime of unlawful assembly is itself of 
common-law origin, Reg. v. Pugh (1704), 87 Eng. Reprint 
900, Rex v. Birt (1831), 172 Eng. Reprint 919, 91 C .  J. S. 
495, § 1; 46 Am. Jur. 126, § 2; is described in slightly vary­
ing forms in the vast majority of jurisdictions (Annot., 71 
ALR 2d 875); and in our own State was codified in the 
Penal Code of 1816 (Ga. L. 1816, p. 178; Lamar’s Comp, 
p. 592).

“The uncertainty in a statute which will amount to a 
denial of due process of law is not the difficulty of ascer­
taining whether close cases fall within or without the 
prohibition of the statute, but whether the standard estab­
lished by the statute is so uncertain that it cannot be de­
termined with reasonable definiteness that any particular 
act is disapproved; and a criminal statute is sufficiently 
definite if its terms furnish a test based on knowable criteria 
which men of common intelligence who come in contact 
with the statute may use with reasonable safety in deter­
mining its command.” 163 A. L. R. 1108, Annotating Min­
nesota v. Lanesboro Produce Co., 221 Minn. 246 (21 NW 2d 
792) (citing Nash v. United States, supra, United States v. 
Wurzbaeh, 280 U. S. 396, 50 S. Ct. 167, 74 LE 508, and 
Collins v. Com. of Kentucky, 234 U. S. 634, 34 S. Ct. 924, 
58 LE 1510). The language of the Code section in question 
is pronounced in terms so lucid and unambiguous that a 
person of common intelligence would discern its meaning 
and apprehend with what violation he was charged. F arrar 
v. State, 187 Ga. 401 (200 SE 803); Fowler v. State, 189 
Ga. 733 (8 SE 2d 77); Watson v. State, 192 Ga. 679 (16 SE 
2d 426).



8a

5. The last contention (5) assigned, that the Code sec-
— 74—

tion confers untrammelled and arbitrary authority upon the 
arresting officer, has no merit since we have determined 
that the statute has a clear-cut standard to apprise one 
of what constitutes a criminal act and thus to guide the 
conduct of such officer. There is no usurpation of judicial 
authority, nor the improper delegation of judicial discre­
tion, since the officer involved only makes the arrest when, 
in his discretion, he believes a crime to have been per­
petrated. The innocence or guilt, beyond a reasonable 
doubt, of the accused must still be determined by judicial 
process.

This is a case of first impression in this State, and our 
research has failed to reveal any full-bench decisions from 
other jurisdictions on the exact question of the constitution­
ality of a similar unlawful-assembly statute. Nevertheless, 
see Code v. Arkansas, 338 U. S. 345 (70 S. Ct. 172, 94 LE 
155). However, by applying the well-recognized principles 
and applicable tests above stated, we find no deprivation of 
the defendants’ constitutional rights under the Fourteenth 
Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.



9a

SUPREME COURT OF GEORGIA 
21430

■75

A tla n ta , November 9,1961

The Honorable Supreme Court met pursuant to adjourn­
ment.
The following judgment was rendered:

N a t h a n ie l  W e ig h t  e t a l.,

T h e  S tate .

----------—--- —— ---------- —   
This ease came before this court upon a writ of error 

from the City Court of Savannah; and, after argument 
had, .it is considered and adjudged that the judgment of 
the court below be affirmed.

All the Justices concur.



10a

—80—
SUPREME COURT OF GEORGIA 

21430

A tla n ta , November 21,1961

The Honorable Supreme Court met pursuant to adjourn­
ment.
The following order was passed:

-----------------............ ... .......................
N a t h a n ie l  W e ig h t  et al.,

T h e  S tate .

■----------------------------------------------- -— ------------------------------------------ -

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it be hereby denied.



g>ufiraiu> (Court of %  Imtrfi States
October Term, 1961 

No............

J a m es  E dwards, J r ., and 186 Others,

Petitioners,

S tate  op S o u t h  C arolina .

PETITIO N FOR W RIT OF CERTIORARI TO THE  
SUPREME COURT OF SOUTH CAROLINA

J ack  Green berg  
C o n stance  B a ker  M otley  
J am es M. N abrit , III 
M ic h a e l  M eltsn br  

10 Columbus Circle 
New York 19, New York

M a t t h e w  J .  P erry  
L in c o l n  C. J e n k in s , J r .

1107% Washington Street 
Columbia 1, South Carolina

D onald J am es S a m pson

Greenville, South Carolina
Attorneys for Petitioners



I N D E X
PAGE

Citations to Opinions Below........................................ . 1

Jurisdiction ... ................................................................. 1

Questions Presented .....................................................  2

Constitutional Provisions Involved ...............................  2

Statement .......................  ................................................  2

How the Federal Questions Were Raised and Decided .. 8

Reasons for Granting the Writ .................................... 10
I. Petitioners’ conviction on warrants charging that 

their conduct “tended directly to immediate vio­
lence and breach of the peace” is unconstitu­
tional in that it rests on no evidence of violence 
or threatened violence .......................................  11

II. Petitioners’ convictions were obtained in viola­
tion of their rights to freedom of speech, assem­
bly and petition for redress of grievances in 
that they were convicted because their protected 
expression tended to lead to violence and breach 
of the peace on the part of others ..................... 16

C o n c l u s io n ...................................................................... 20

Appendix .......................................................................  l a

Opinion of the Richland County Court .............. ......----- la

Opinion of the Supreme Court of South Carolina......  la

Denial of Petition for Rehearing ................................ 16a



11

T able oe Cases
page

Beatty v. Gillbanks (1882) L. R. 9 Q. B. Div. 308 .... 19
Cantwell v. Connecticut, 310 U. S. 296 ..........11,12,15,17,18
Cole v. Arkansas, 333 U. S. 196 ...................................  11
Cooper y . Aaron, 358 U. S. 1 ....................................—- 19
De Jonge v. Oregon, 299 U. S. 353 ............................ 11,15
Feiner y . New York, 300 N. Y. 391, 91 N. E. 2d 319...... 3,10
Feiner y . New York, 340 U. S. 315 .................................12,18
Garner v. Louisiana, 7 L. ed. 2d 207 ..............11,12,14,16
Hague y . C. I. 0., 307 U. S. 496 .....................12,15,16,17,18
Runs y . New York, 340 U. S. 290 ..................................... 18
RobesonY. Fanelli, 94 F. Supp. 62 (S. D. N. Y. 1950) —. 17 
Rockwell y . Morris, 10 N. Y. 721 (1961) cert, denied 

7 L. ed. 2d 131.....................................................15,18,19
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947) cert.

denied 332 U. S. 851 ................................12,15,17,18,19
State v. Langston, 195 S. C. 190, 11 S. E. (2d) 1 ..........  14
Strutivear Knitting Co. y . Olsen, 13 F. Snpp. 384 (D. C. 

Minn. 1936) ................................................................  19
Terminiello v. Chicago, 337 U. S. 1 ....... ......—-....-.....12,19
Thompson y . Louisville, 362 U. S. 199............................ 11,16
Thornhill y . Alabama, 310 U. S. 88 .............................. -  18
United States v. Cruikshank, 92 U. S. 542 .....................  16
Whitney y . California, 274 U. S. 357 ...............................-15,16

Other A uthority

8 American Jurisprudence 834 et seq. 14



1st the

0 n'jJiWi£ Otourt of tire Irntob
October Term, 1961 

No............

J ames E dwards, J r., and 186 Others,
Petitioners,

— Y .—

State oe South Carolina.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina 
entered in the above entitled case on December 5, 1961, 
rehearing of which was denied on December 27, 1961.

Citation To Opinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is as yet 
unreported and is set forth in the appendix hereto, infra 
pp. 10a-15a. The opinion of the Richland County Court is 
unreported and is set forth in the appendix hereto, infra 
pp. la-9a.

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered December 5, 1961, infra pp. 10a-15a. Petition



2

for Rehearing was denied by the Supreme Court of South 
Carolina on December 27, 1961, infra p. 16a.

The Jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257(3), petitioners 
having asserted below and asserting here, deprivation of 
rights, privileges and immunities secured by the Constitu­
tion of the United States.

Q uestions P resented

Whether petitioners were denied due process of law as 
secured by the Fourteenth Amendment to the Constitution 
of the United States:

1. When convicted of charges that their conduct, which 
was an assembly to express opposition to racial segregation 
on the State House grounds, “tended directly to immediate 
violence and breach of the peace” on a record containing no 
evidence of threatened, imminent, or actual violence.

2. When convicted of the common law crime of breach of 
the peace because exercise of their rights of free speech and 
assembly to petition for a redress of grievances allegedly 
“tended” to result in unlawful conduct on the part of other 
persons opposing petitioners’ views.

C onstitutional P rov isions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Statem ent

Warrants issued against petitioners charged them with 
common law breach of the peace on March 2, 1961 at the



3

South Carolina State Capitol grounds. The warrants al­
leged inter alia that they:

“ • • • did commit a breach of the peace in that they, 
together with a large group of people, did assemble 
and impede the normal traffic, singing and parading 
with placards, failed to disperse upon lawful orders of 
police officers, all of which tended directly to immediate 
violence and breach of the peace in view of existing 
conditions” (E. 3). (Emphasis supplied.)

The City Manager of Columbia who was supervising the 
police department at the time (E. 18-19) testified that “My 
official reason for dispersing the crowd was to avoid pos­
sible conflict, riot and dangers to the general public. . . . ” 
(E. 16-17).

The Chief of Police testified that he took action “[t]o 
keep down any type of violence or injury to anyone” (E. 
46; and see B. 53, 100, 101, 106, to the same effect).

The trial court sitting without a jury found petitioners 
guilty of common law breach of the peace. The Court 
imposed fines of $100 or 30 days in jail in most eases; in 
many of these cases one-half of the fine was suspended. 
In a few cases the defendants were given $10 fines or five 
days in jail (E. 78; 155; 217-218; 229-230).

The Eichland County Court affirmed, principally upon 
authority of People v. Feiner, 300 N. Y. 391, 91 N. E. 2d 
319, concluding there was a “dangerous” (E. 238) situation 
and actions which a “reasonable thinking citizen knows or 
should know would stir up passions and create incidents 
of disorder” (E. 239).

The Supreme Court of South Carolina affirmed on the 
ground tha t:

“The orders of the police officers under all of the 
facts and circumstances were reasonable and motivated



4

solely by a proper concern for the preservation of 
order and prevention of further interference with traf­
fic upon the public streets and sidewalks.”

In fact, the record furnishes no evidence of violence or 
even a threat of violence either by or against petitioners. 
Nor, indeed, does the record demonstrate that the peti­
tioners, who were carrying their placards and walking about 
wholly within the State House grounds, had themselves 
stopped the sidewalks or traffic; only that bystanders were 
attracted who moved on at police request, and that traffic 
was somewhat slowed, a condition which did not presage 
violence. Either after arrest, or after the police order to 
disperse, petitioners sang hymns and patriotic songs in a 
singing, chanting, shouting response, as one might find 
in a religious atmosphere. All of these facts are developed 
at greater length, with appropriate record citations, below.

The genesis of this criminal prosecution lies in a decision 
of various high school and college students in Columbia, 
South Carolina to protest to the State Legislature and 
government officials against racial segregation:

“To protest to the citizens of South Carolina, along 
with the Legislative Bodies of South Carolina, our 
feelings and our dissatisfaction with the present con­
dition of discriminatory actions against Negroes, in 
general, and to let them know that we were dissatisfied 
and that we would like for the laws which prohibited 
Negro privileges in this State to be removed” (R. 138).

The State House is occupied by the State Legislature 
which was in session at the time (R. 37).

The Police Chief recognized that the demonstration was 
part of “a widespread student movement which is designed 
to possibly bring about a change in the structure of racial 
segregation laws and custom” (R. 49).



5

The petitioner who testified to this, James Jerome Kit- 
ron, a third year student at Benedict College (R. 142), 
stated that the petitioners had met at Zion Baptist Church 
on March 2, 1961, divided into groups of 15 to 18 persons 
(R. 135), and proceeded to the State House grounds which 
occupy two square blocks (R. 168). They are in a horse­
shoe shaped area, bounded by a driveway and parking lot 
which is “used primarily for the parking of State officials’ 
cars” (R. 159). There is some passage in and out of this 
area by vehicular traffic and by people leaving and enter­
ing the State building. In addition, there are main side­
walk areas leading into the State Capitol on either side of 
the horseshoe area (R. 159). The horseshoe area “is not 
really a thoroughfare” (R. 123). It is an entrance and 
exit for those having business in the State House (R. 123). 
During the time of the demonstration no traffic was blocked 
going in and out of the horseshoe area; no vehicle made any 
effort to enter (R. 119).

The students proceeded from the church to the parking 
area in these small groups which were, as petitioner Kitron 
put it, approximately a half block apart, or as Chief Camp­
bell put it, about a third of a block apart (R. 107), although 
at various times they moved closer together (R. 107, 169). 
But, “there never was at any time any one grouping of 
all of these persons together” (R. 111).

The police informed petitioners “that they had a right, 
as a citizen, to go through the State House grounds as any 
other citizen has, as long as they were peaceful” (R. 43, 
47, 104, 162). Their permission, however, was limited to 
being “allowed to go through the State House grounds one 
time for purposes of observation” (R. 162). This took 
about half an hour (R. 163). As they went through the 
State House grounds they carried signs, such as “I am 
proud to be a Negro,” and “Down with Segregation” (R. 
141). The general feeling of the group was that segrega-



6

tion in South Carolina was against general principles of 
humanity and that it should be abolished (R. 138).

There is dispute in the record whether it was before 
or after arrest (Compare R. 38 with R. 139) that petition­
ers commenced singing religious songs, the “Star Spangled 
Banner” and otherwise vocally expressing themselves, but 
there is agreement that none of this occurred until at 
least after the police ordered petitioners to disperse (see
R. 38, 92). As the City Manager described it, this was 
“a singing, chanting, shouting response, such as one would 
get in a religious atmosphere . . . ” (R. 92). Thereafter the 
students were lined up and marched to the City Jail and 
the County Jail (R. 18).

The students were at all times well demeaned, well 
dressed, orderly (R, 29). The City Manager disagreed 
with this designation only to the extent that petitioners 
engaged in the religious and patriotic singing described 
above (R. 29).

Nowhere in the record, however, can any evidence he 
found that violence occurred, or that violence was threat­
ened. The City Manager testified that among the onlookers 
he “recognized possible trouble makers” (R. 33), but “took 
no official action against [the potential trouble makers] 
because there was none to be taken. They were not creating 
a disturbance, those particular people were not at the time 
doing anything to make trouble, but they could have been.” 
He did not even “talk to the trouble makers” (R. 34). When 
onlookers were “told to move on from the sidewalks” they 
complied (R. 38). None refused (R. 38).

The City Manager stated that thirty to thirty-five officers 
were present (R. 22). The Police Chief of Columbia had 
fifteen men in addition to whom were State Highway Patrol­
men, South Carolina Law Enforcement officers, and three 
Deputy Sheriffs (R. 50). This was, in the City Manager’s



7

words “ample policemen” (R. 168). But lie believed that 
“Simply because we had ample policemen there for their 
protection and the protection of others, is no reason for 
not placing them under arrest when they refused a lawful 
request to move on” (R. 168).

The police had no particular “trouble makers in mind,” 
merely that “you don’t know what might occur and what is 
in the mind of the people” (R. 50). Asked “You were afraid 
trouble might occur; from what source?” the Chief replied 
“You can’t always tell” (R. 54). Asked “Are you able, sir, 
to say where the trouble was?” he replied, “I don’t know” 
(R. 54). None of the potential “trouble makers” was ar­
rested and pedestrians ordered to “move on at [the Chief’s] 
command” did so (R. 114).

So far as obstruction of the street or sidewalks is con­
cerned, there is a similar absence of evidence. The City 
Manager testified that the onlookers blocked “the side­
walks, not the streets” (R. 32). But they cleared the side­
walks when so ordered (R. 34). While petitioners “prob­
ably did” (R. 109, 111) slow traffic in crossing the streets on 
the way to the grounds (R. 109), once there, they were 
wholly within the grounds (R. 188). They did not, as stated 
above, block traffic within the grounds (R. 53), no vehicle 
having made an effort to enter the parking area during this 
period of time. Their singing, however, was said by the 
City Manager to have slowed traffic (R. 92). And the 
noise, he said, was disrespectful to him (R. 99).

Columbia has an ordinance forbidding the blocking of 
sidewalks and petitioners were not charged under this ordi­
nance (R. 54). Pedestrians within the grounds could move 
to their destinations (R. 48, 52,195). Onlookers moved along 
when ordered to by the police (R. 34). There is no evidence 
at all, as stated in the charge that traffic congestion tended 
to any violence at all.



8

H ow the F ederal Q uestions W ere R aised  
and D ecided  B elow

The petitioners were tried before the Columbia City 
Magistrate of Richland County in four separate trials on 
the 7th, 13th, 16th and 27th of March, 1961. At the close 
of the prosecution’s case on the 7th of March, petitioners 
moved to dismiss the case against them:

“ . . .  on the ground that the evidence shows that 
by arresting and prosecuting the defendants, the offi­
cers of the State of South Carolina and of the City of 
Columbia were using the police power of the State of 
South Carolina for the purpose of depriving these 
defendants of rights secured them under the First and 
Fourteenth Amendments of the United States Consti­
tution. I  particularly make reference to freedom of 
assembly and freedom of speech” (R. 76).

This motion was denied (R. 76). Following judgment 
of conviction petitioners moved for arrest of judgment or 
in the alternative a new trial relying, inter alia, on the 
denial of petitioners’ rights to freedom of speech and as­
sembly guaranteed by the Fourteenth Amendment to the 
Constitution of the United States (R. 79, 80). The motions 
were denied (R. 80).

Similar motions to dismiss and for arrest of judgment 
or in the alternative a new trial all claiming protection of 
petitioners’ rights, under the Constitution of the United 
States, to freedom of speech and assembly in that the evi­
dence showed petitioners “were included in a peaceful and 
lawful assemblage of persons, orderly in every respect 
upon the public streets of the State of South Carolina” 
(R. 134, 201) were made at the trials on the 13th (R. 134, 
152, 155), the 16th (R. 201, 214, 218) and the 27th (R, 228,



9

229, 230). These motions were all denied by the trial Court 
(E. 135, 152, 155, 201, 214, 218, 228, 229, 230).

Petitioners appealed to the Richland County Court where, 
by stipulation, the appeals were treated as one “since the 
facts and applicable law were substantially the same in 
each case” (R. 232).

The Richland County Court, upon the authority of Feiner 
v. New York, 300 N. Y. 391, 91 N. E. 2d 319 (R, 236, 237, 
238) held:

“While it is a constitutional right to assemble in a hall 
to espouse any cause, no person has a right to organize 
demonstrations which any ordinary and reasonable 
thinking citizen knows or reasonably should know would 
stir up passions and create incidents of disorder.”

Petitioners appealed to the Supreme Court of the State 
of South Carolina, excepting to the judgment below as 
follows:

“4. The Court erred in refusing to hold that the 
evidence shows conclusively that by the arrest and 
prosecution of appellants, the police powers of the 
State of South Carolina are being used to deprive 
appellants of the rights of freedom of assembly and 
freedom of speech, guaranteed them by the First 
Amendment to the United States Constitution, and fur­
ther secured to them under the equal protection and 
due process clauses of the Fourteenth Amendment to 
the Constitution of the United States” (R. 240).

The Supreme Court of South Carolina, in treating peti­
tioners constitutional objections, stated (infra pp. lla-12a):

“While the appellants have argued that their arrest and 
conviction deprived them of their constitutional rights



10

of freedom of speech and assembly . . .  it is conceded 
in argument before us that whether or not any consti­
tutional right was denied to them is dependent upon 
their guilt or innocence of the crime charged under the 
facts presented to the trial Court. If their acts con­
stituted a breach of the peace, the power of the State to 
punish is obvious. Feiner v. New York, 71 S. Ct. 303, 
340 U. S. 315, 95 L. ed. 295.”

The Supreme Court of South Carolina then proceeded to 
define breach of the peace generally and found it to include 
“an act of violence or an act likely to produce violence”, 
infra p. 14a, and held that “the orders of the police officers 
under all of the facts and circumstances were reasonable 
and motivated solely by a proper concern for the preserva­
tion of order and prevention of further interference with 
traffic upon the public streets and sidewalks”, infra p. 15a.

R easons fo r  G ranting the W rit

This case raises a question of recurring importance to a 
democratic society—the extent to which a state may limit 
public expression on issues of national importance and 
concern on the ground that such expression may lead to 
violence although none in fact has occurred or even been 
threatened—answered in the Courts below in a manner con­
trary to principles enunciated by this Court.



11

I
Petitioners’ conviction on warrants charging that their 

conduct “tended directly to immediate violence and 
breach of the peace” is unconstitutional in that it rests 
on  no evidence of violence or threatened violence.

It is settled that this Court cannot he concerned with 
whether this record proves the commission of some crime 
other than that with which petitioners were charged. Con­
viction of an accused for a charge that was never made is a 
violation of due process. Cole v. Arkansas, 333 U. S. 196; 
De Jonge v. Oregon, 299 U. S. 353, 362. It is equally true 
that an accused cannot be convicted “upon a charge for 
which there is no evidence.” Garner v. Louisiana, 7 L. ed. 
2d 207, 214; Thompson v. Louisville, 362 U. S. 199, 206.

Petitioners were convicted of common law breach of the 
peace, for expressing their disapproval of the racial policies 
of the State of South Carolina, upon warrants (E. 2, 3, 156, 
157, 225, 226) charging that:

“On March 2, 1961, on State Capitol grounds, on 
adjacent sidewalks and streets, did commit a breach 
of the peace in that they, together with a large group 
of people, did assemble and impede normal traffic sing­
ing and parading with placards, failed to disperse upon 
lawful orders of police officers, all of which tended 
directly to violence and breach of the peace in view of 
existing conditions” (E. 2, 3, 157, 226). (Emphasis 
added.)

To sustain conviction on such a charge the Constitution 
requires proof of a substantial evil that rises far above 
public inconvenience, annoyance and unrest and a clear 
and present danger that that evil will occur, Cantwell v.



12

Connecticut, 310 U. 8. 296, 311. The Supreme Court of 
South Carolina equated this constitutional standard with 
the offense charged, infra pp. 10a, 11a. These warrants 
charge petitioners with conduct which “tended directly to 
immediate violence and breach of the peace”, and, there­
fore, they cannot be convicted on proof of less.

This record is, however, without proof of violence or 
threatened violence on the part of either the petitioners or 
the onlookers to their demonstration. The very most that 
may be said of petitioners’ conduct is that they sang the 
“Star Spangled Banner,” “America” and religious hymns 
loudly, though not in a contemptuous manner (B. 39) and 
stomped their feet when told to disperse. There is no 
testimony of any kind that any of the demonstrators or the 
onlookers made any remark or action or, indeed, gesture 
which could be considered a prelude to violence. Those who 
watched the demonstration appear to have been curious 
and nothing more.

When asked why he thought there was a possiblity of 
violence, the City Manager who ordered the arrests, testi­
fied he noticed some “possible troublemakers” among the 
bystanders (R. 33-36). But these “possible troublemakers”, 
who were not identified, did nothing, said nothing and moved 
on when so requested by the police (R. 33-36, 38, 54, 175). 
Petitioners cannot be convicted on the totally unsubstanti­
ated opinion of the police of possible disorder. Garner v. 
Louisiana, 7 L. ed. 2d 207. Cf. Hague v. C. I. 0., 307 U. S. 
496, 516. Compared to the body contact and threats in 
Feiner v. New York, 340 U. S. 315, 317, 318; the riotous 
circumstances of Terminiello v. Chicago, 337 U. S. 1, 3 and 
the mob action in Sellers v. Johnson, 163 P. 2d 877 (8th 
Cir. 1947) cert, denied 332 U. S. 851, this record hardly indi­
cates even a remote threat to public order.



13

Although the police testified that petitioners’ demonstra­
tion was stopped because the situation had become “poten­
tially dangerous” and not because of traffic problems (R. 
16-17, 46, 53, 100-101, 186), and petitioners were charged 
with conduct which “tended directly to immediate violence 
and breach of the peace”, the Supreme Court of South Caro­
lina considered interference with traffic as an element of 
petitioners’ offense, infra p. 15a. Even if causing inter­
ference with traffic alone could uphold these convictions, the 
conclusory language of the Supreme Court of South Caro­
lina concerning “impeding traffic” does not bear analysis.

The City Manager and various police officers testified 
that vehicular traffic was slowed on the city street in front 
of the State House Building by those attracted by the dem­
onstration; that the lanes leading to the dead-end parking 
area directly in front of the legislative building were occa­
sionally obstructed; that the sidewalk near the horseshoe 
area (and part of the State House grounds) where the 
demonstration took place was crowded; and that the side­
walk on the other side of the city street from the horseshoe 
was crowded with onlookers. On the uncontradicted testi­
mony of the City Manager and the police officers, however, 
no one attempted to use the lanes leading to the parking 
area (R. 119, 123) ; while vehicular traffic on the city street 
was slowed, a police officer was dispatched and kept it mov­
ing (R. 45, 48); and the curious who had congregated to 
watch the demonstration moved on promptly when re­
quested by the police (R. 38). Passage of pedestrians was 
not blocked on any sidewalk (R. 48, 52, 195). The police 
were in complete control of any traffic problems (R. 34, 48, 
168, 22).

These facts do not permit an inference of violence or 
threatened violence. Petitioners were not charged with 
obstructing traffic (although there is a specific South Caro-



14

lina statute prohibiting obstruction of traffic on the State 
House Grounds, §1-417, Cumulative Supplement, 1952 Code 
of Laws, see infra p. 12a (R. 54)) but rather with conduct 
which “tended directly to immediate violence and breach 
of the peace.” Without evidence of verbal threats, dis­
obedience of police orders to move on, surging and milling 
or body contact, any conclusion that a group of bystanders, 
observing a demonstration in front of the State House 
would turn immediately violent, while at least 30 policemen 
were in attendance, is purely speculative.

Nor can a conclusion that petitioners’ demonstration 
caused some slowing of vehicular and pedestrian traffic in 
and of itself be used to uphold these convictions. Peti­
tioners were charged with the broad offense of common 
law breach of the peace. The Supreme Court of South 
Carolina adopted the general definition of breach of the 
peace found in 8 Am. Jur. 834, infra p. 14a, which definition 
extends to an act “of violence or an act likely to produce 
violence.” Neither the general definition quoted by the 
Supreme Court of South Carolina or the remainder of the 
section on Breach of the Peace, 8 Am. Jur. 835, 836, 837, 
delineates as breach of the peace, the holding of a non­
violent demonstration which causes slower traffic on streets 
and sidewalks. Petitioners have been unable to locate any 
South Carolina decision applying breach of the peace to 
any such situation or related situation.1 In this regard, Mr. 
Justice Harlan’s words in Garner v. Louisiana, supra at 
p. 236, are here relevant:

1 Compare the South Carolina cases cited by the Supreme Court 
of South Carolina, infra p. 14a, all but one of which deal with 
repossessing goods sold on the installment plan. State v. Langston, 
195 S. C. 190, 11 S. E. (2d) 1, the other case, upheld the con­
viction of a Jehovah’s Witness who played phonograph records on 
the porches of private homes and used a soundtruck.



15

“But when a State seeks to subject to criminal sanc­
tions conduct which, except for a demonstrated para­
mount state interest, would be within the range of 
freedom of expression as assured by the Fourteenth 
Amendment, it cannot do so by means of a general and 
all-inclusive breach of the peace prohibition. It must 
bring the activity sought to be proscribed within the 
ambit of a statute or clause ‘narrowly drawn to define 
and punish specific conduct as constituting a clear and 
present danger to a substantial interest of the State.’ ”

To convict petitioners because a byproduct of their expres­
sion was interference with traffic would be to open South 
Carolina’s use of common law breach of the peace to the 
vice of vagueness. Cantwell v. Connecticut, 310 U. S. 296, 
307, 308.

One of the purposes of rights of freedom of speech, as­
sembly and petition for redress of grievances is to influence 
public opinion and persuade others to one’s own point of 
view. Be Jonge v. Oregon, 299 TJ. S. 353, 365; Sellers v. 
Johnson, 163 F. 2d 877, 881 (8th Cir. 1947) cert, denied 
332 IT. S. 851; Cantwell v. Connecticut, 310 IT. S. 296, 310; 
Whitney v. California, 274 IT. S. 357, 375 (Mr. Justice 
Brandeis concurring). Cf. Rockivell v. Morris, 10 N. Y. 721 
(1960) cert, denied 7 L. ed. 2d 131. The exercise of these 
rights on controversial issues will inevitably lead to situa­
tions where numbers of persons hostile to the views ex­
pressed are in attendance. If it were otherwise, the salutory 
function of these rights would be lost and, ironically, suc­
cessful attraction of others to hear and see your views 
would result in the denial of the right to express those 
views. To allow the police to use the very fact that there 
are other persons besides the demonstrators in attendance 
as the basis for a conclusion as to the likelihood of violence 
would be to subject these rights “to arbitrary suppression 
of free expression.” Hague v. C. I. O., supra at 516.



16

II
P etition ers’ convictions were obtained  in  v io la tion  o f  

their rights to freed om  o f  speech , assem bly and peti­
tion  fo r  redress o f  grievances in  that they w ere con ­
victed  because th eir  protected  expression  a lleged ly  
tended to  lead  to v io len ce  and breach o f  the peace on  
the part o f  others.

Mr. Justice Brandeis has written, W h itn e y  v. C a lifo r n ia ,  
274 U. S. 357, 378, concurring opinion, that:

“ . . . the fact that speech is likely to result in some 
violence or in destruction of property is not enough 
to justify its suppression. There must he the prob­
ability of serious injury to the State. Among free men, 
the deterrents ordinarily to be applied to prevent crime 
are education and punishment for violations of the 
law, not abridgement of the rights of free speech and 
assembly.”

Petitioners demonstrated their desire for reform of the 
racially discriminatory policies of the State of South Caro­
lina on the grounds of the State Legislative Building while 
the Legislature of the State of South Carolina was in ses­
sion. It would be difficult to conceive of a more appro­
priate time and place to exercise the rights of freedom of 
expression. Cf. H a g u e  v. C. I .  0 . ,  307 U. S. 496, 515; U n ite d  
S ta te s  v. C r u ik s h a n k , 92 U. S. 542.

Petitioners have argued that this record is barren of any 
evidence of conduct which was violent or threatened dis­
order. But even if this Court should hold that the evidence 
is adequate to avoid the rule of T h o m p s o n  v. L o u is v i l le ,  
s u p r a , and G a rn e r  v. L o u is ia n a , s u p r a , such a determination 
still does not overcome the flaw in the convictions here. 
For these convictions were sustained below on the ground



17

that petitioners’ conduct threatened violence and breach of 
the peace on the part of those who observed the demonstra­
tion. In the circumstances of this case, however, the duty 
of the police was to protect petitioners from the unlawful 
conduct of others, not to silence freedom of expression. 
This is especially true when the disorder is not actual and 
imminent but (as testified by the officers) “possible”, and 
where, as here, large numbers of policemen are present 
and in control of the situation. H a g u e  v. C. I .  0 . ,  307 U. S. 
at 516; S e l le r s  v. J o h n s o n , 163 F. 2d 877, 881 cert, denied 
332 U. S. 851. Cf. R o b e s o n  v. F a n e lli , 94 F. Supp. 62, 69, 
70 (S. D. N. Y. 1950).

If this is the duty of the police when there are potential 
threats of violence it must a fo r t io r i  be the duty of the 
police when traffic adjustment is involved. The minor in­
conveniences necessitated by traffic control and asking by­
standers to move on cannot be enlarged into a justification 
for abridging the freedoms of expression so fundamental 
to the health of the democratic process. Petitioners have 
not been convicted pursuant to a statute evincing a legisla­
tive judgment that their expression should be limited in 
the interests of some other societal value, but under a 
generalized conception of common law breach of the peace. 
C a n tw e ll  v. C o n n e c tic u t, 310 U. S. at 307. Here as in the 
C a n tw e ll case, there has been no such specific declaration 
of state policy which “would weigh heavily in any challenge 
of the law as infringing constitutional limitations” (310 
U. S. at 308). Petitioners were not charged with violating 
§1-417, Cum. Supp. 1952 Code of Laws of South Carolina, 
in which the Legislature did address itself to the problem 
of traffic control in the State House area.2 In the absence

2 §1-417 provides as follows:
“It shall be unlawful for any person:

1. Except State officers and employees and persons having 
lawful business in the buildings, to use any of the driveways,



18

of a state statute, narrowly drawn, South Carolina cannot 
punish expression which only leads to minor interference 
with traffic. Petitioners’ “communication, considered in the 
light of the constitutional guarantees, raised no such clear 
and present menace to public peace and order as to render 
[them] liable to conviction of the common law offense in 
question” C a n tw e ll v. C o n n e c tic u t , 310 U. S. 296, 311; cf. 
T h o r n h i l l  v. A la b a m a , 310 U. S. 88,105,106. See Statement, 
sw p ra , p. 7.

This Court has found the interests of the State insuffi­
cient to justify restriction of freedom of speech and assem­
bly in circumstances far more incendiary than these. T e r -  
m in ie llo  v. C h ica g o , 337 U. S. 1; H a g u e  v. C. I .  0 . ,  307 U. S. 
496; R u n s  v. N e w  Y o r k ,  340 U. S. 290. Cf. S e lle r s  v. J o h n ­
so n , 163 F. 2d 877 (8th Cir. 1947) cert, denied 332 U. S. 
851; R o c k w e ll  v. M o r r is , 10 N. Y. 721 (1961) cert, denied 
7 L. ed. 2d 131. In this case there is no indication of immi­
nent violence as in F e in e r  v. N e w  Y o r k ,  340 U. S. 315, 318, 
where a “pushing, milling and shoving crowd” was “moving 
forward.”

The right to assemble peacefully to express views on 
issues of public importance must encompass security 
against being assaulted for having exercised it. Otherwise, 
the exercise of First and Fourteenth Amendment freedoms 
would be contingent upon the unlawful conduct of those

alleys or parking spaces upon any of the property of the 
State, bounded by Assembly, Gervais, Bull and Pendleton 
Streets in Columbia upon any regular weekday, Saturdays and 
holidays excepted, between the hours of 8 :30 A.M., and 5 :30 
P.M., whenever the buildings are open for business; or 

2. To park any vehicle except in spaces and manner marked 
and designated by the State Budget and Control Board, in 
cooperation with the Highway Department, or to block or 
impede traffic through the alleys and driveways.”



19

opposed to the views expressed.3 Such a result would only 
serve to provoke threats of unlawful and violent opposition 
as a convenient method to silence minority expression. Such 
a result should not be sanctioned when important consti­
tutional rights are at stake. C o o p e r  v. A a r o n , 358 U. S. 
1, 14; T e r m m ie l lo  v. C h ica g o , 337 U. S. 1; S e lle r s  v. J o h n ­
so n , s u p r a ;  R o c k w e ll  v. M o r r is , su p ra . “Carried to its 
logical conclusion, th[is] rule would result in civil authori­
ties suppressing lawlessness by compelling the surrender 
of the intended victims of lawlessness. The banks could 
be closed and emptied of their cash to prevent bank rob­
beries; the post office locked to prevent the mails being 
robbed; the citizens kept off the streets to prevent holdups; 
and a person accused of murder could be properly sur­
rendered to the mob which threatened to attack the jail in 
which he was confined.” S tr u tw e a r  K n i t t i n g  Co. v. O lsen , 
13 F. Supp. 384, 391 (D. C. Minn. 1936).

3 See Beatty v. Gillbanks (1882) L. R. 9 Q. B. Div. (Eng) 
holding street paraders not guilty of breach of the peace for 
parade they knew would cause violent opposition.



20

CONCLUSION

W herefore, fo r the foregoing reasons, it is respectfully 
subm itted th a t the petition fo r w rit of certio rari should be 
granted.

Respectfully submitted,

J ack Greenberg 
Constance Baker Motley 
J ames M. Nabrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J . P erry 
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia 1, South Carolina 

Donald J ames Sampson
Greenville, South Carolina

A t to r n e y s  f o r  P e t i t io n e r s



A P P E N D IX



A P P E N D IX

I n the R ichland County Court

T he State 

—v.~—

J ames E dwards, J r., e t al.

ORDER

This is an appeal from conviction in magistrate’s court 
of the common law crime of breach of the peace. There 
are almost 200 appellants, who were convicted by the 
magistrate, City of Columbia, Richland County, in four 
trials, trial by jury having been waived by the appellants 
in each case. By stipulation between counsel for the ap­
pellants and the counsel for the State, the appeals will be 
treated here as one since the facts and applicable law 
were substantially the same in each case. The trial Magis­
trate imposed fines upon each of the appellants ranging 
from $10.00 to $100.00. Due and timely notice of appeal 
from conviction was served and oral arguments were heard 
before me in open court. At my suggestion and with the 
agreement of counsel for both sides, written briefs were 
filed.

The appellants except to the finding of the Magis­
trate’s Court and the fines imposed as a result of such 
finding of guilt upon the grounds that the State by the 
evidence failed to establish the c o rp u s  d e lic ti, that the 
State failed to prove a p r im a  fa c ie  case, that the evidence 
showed that the police powers of the State of South Caro­
lina were used against the appellants to deprive them of



2a

Order

the right of freedom of speech guaranteed by the Consti­
tution of the United States and the Constitution of South 
Carolina, and that the evidence presented before the Magis­
trate showed only that the appellants at the time of their 
arrests were engaged in a peaceful and lawful assemblage 
of persons, orderly in every respect upon the public streets 
of the State of South Carolina.

Testimony before the Magistrate sets out the following 
series of events which culminated in the arrest of the 
appellants and the issuance of warrants charging them 
with breach of the peace. Shortly before noon on the third 
day of March, 1961, the appellants, acting in concert and 
with what appeared to be a preconceived and definite plan, 
proceeded on foot along public sidewalks from Zion Baptist 
Church in the City of Columbia to the State House grounds, 
a distance of approximately six city blocks. They walked 
in groups of twelve to fifteen each, the groups being sepa­
rated by a few feet. Testimony shows that the purpose of 
this assemblage and movement of students was to walk 
in and about the grounds of the State House protesting, 
partly by the use of numerous placards, against the segre­
gation laws of this State. The General Assembly was in 
session at the time.

Upon their approach to an area in front of and im­
mediately adjacent to the State House building, known 
as the “horseshoe”, the Negro students were met by police 
authorities of the State and the City of Columbia. After 
brief conversation between the leader of the students and 
police officers, the students proceeded to walk in and about 
the State House grounds displaying placards, some of 
which, at least, might be termed inflammatory in nature. 
There is some evidence also that a few groups of students 
were singing during this period. Such activity continued



3a

O r d e r

for approximately 45 minutes during which the students 
met with no interference from anyone. Testimony from 
city and state authorities was to the effect that during 
this period of time, while the students were marching in 
and about the grounds without hindrance from officers, 
large numbers of onlookers, evidently attracted by the 
activity of the students, had gathered in the “horseshoe” 
area, entirely blocking the vehicular traffic lane and inter­
fering materially with the movement of pedestrian traffic 
on the sidewalks in the area and on city sidewalks im­
mediately adjacent. Testimony of city and state authorities 
was that vehicular traffic on the busy downtown streets of 
Gervais and Main, one running alongside the grounds and 
the other “dead-ending” at the State House, was noticeably 
and adversely affected by the large assemblage of students 
and onlookers which had tilled the “horseshoe” area and 
overflowed into Gervais and Main Streets. Some testi­
mony disclosed that in and about the “horseshoe” area it 
was necessary for the police to issue increasingly frequent 
orders to keep pedestrian traffic moving, even at a slow 
rate.

The Chief of Police of the City of Columbia and the 
City Manager of the City of Columbia testified that they 
recognized in the crowd of onlookers persons whom they 
knew to be potential troublemakers. It was at this time 
that the police authorities decided that the situation had 
become potentially dangerous and that the activities of 
the students should be stopped. The recognized and ad­
mitted leader of the students was approached by city au­
thorities and informed that the activities of the students 
had created a situation which in the opinion of the officers 
was potentially dangerous and that such activities should 
cease in the interest of the public peace and safety. The



4a

Order

students were told through their leader that they must 
disperse in 15 minutes. The leader of the students, ac­
companied by the City Manager of Columbia, went from 
one group of students to the other, informing them of the 
decision and orders of the police authorities.

The City Manager testified that the leader of the students 
refused to instruct or advise them to desist and disperse 
but that instead he “harangued” the students, whipping 
them into what was described by the City Manager as a 
semi-religious fervor. He testified that the students, in 
response to the so-called harangue by their leader, began 
to sing, clap their hands and stamp their feet, refusing to 
stop the activity in which they were engaged and refusing 
to disperse. After 15 minutes of this activity the students 
were arrested by state and city officers and were charged 
with the crime of breach of the peace.

With regard to the position taken by the appellants 
that their activities in the circumstances set forth did 
not constitute a crime, the attention of the Court has been 
directed to several of our South Carolina cases upon this 
point, one of them being the case of S ta te  v. L a n g s to n ,  
195 S. C. 190, 11 S. E. (2d) 1. The defendant in that case 
was a member of a religious sect known as Jehovah’s Wit­
nesses. He, with others, went on a Sunday to the homes of 
other persons in the community and played records on 
the porches announcing his religious beliefs to anyone who 
would listen. He also employed a loud speaker mounted on 
a motor vehicle to go about the streets for the same pur­
pose. Crowds of persons were attracted by this activity. 
No violence of any kind occurred. Upon his refusal to 
obey orders of police officers to cease such activity, the 
defendant was arrested and convicted for breach of the 
peace. The Court in upholding the conviction said:



5a

O r d e r

“It certainly cannot be said that there is not in this 
State an absolute freedom of religion. A man may 
believe what kind of religion he pleases or no religion, 
and as long as he practices his belief without a breach 
of the peace, he will not be disturbed.

“In general terms, a breach of the peace is a viola­
tion of public order, the disturbance of public tran­
quility, by any act or conduct inciting to violence.

“It is not necessary that the peace be actually 
broken to lay the foundation of prosecution for this 
offense. If what is done is unjustifiable, tending with 
sufficient directness to break the peace, no more is 
required.”

With further reference to the argument advanced by the 
appellants that they had a constitutional right to engage 
in the activities for which they were eventually charged 
with the crime of breach of the peace, regardless of the situ­
ation which was apparently created as a result of such 
activities, this Court takes notice of the New York State 
case of P e o p le  v. F e in e r , 300 N. Y. 391, 91 N. E. (2d) 319. 
In that case the Court of Appeals of the State of New7 York 
wrote an exhaustive opinion in a case which arose in that 
State in 1950, the factual situation being similar in many 
respects to the cases presently before this Court upon ap­
peal.

Feiner, a University student, stationed himself upon one 
of the city streets of the City of Syracuse and proceeded 
to address his remarks to all those who would listen. The 
general tenor of his talk was designed to arouse Negro 
people to fight for equal rights, which he told them they 
did not have. Crowds attracted by Feiner began to fill up 
the sidewalks and overflow into the street. There was no



6a

Order

disorder, but in the opinion of police authorities there was 
real danger of a disturbance of public order or breach of 
the peace. Feiner was requested by police to desist. He 
refused. The arrest was then made and Feiner was charged 
and convicted of disorderly conduct.

In upholding the conviction, the New York Court quoting 
from C a n tw e ll  v. S t a te  o f  C o n n e c tic u t, 310 U. S. 296, 60
S. Ct. 900, 84 L. Ed. 1213, 128 A. L. B. 1352, said:

“The offense known as breach of the peace embraces 
a great variety of conduct destroying or menacing 
public order and tranquility. It includes not only vio­
lent acts, but acts and words likely to produce violence 
in others. No one would have the hardihood to suggest 
that the principle of freedom of speech sanctions incite­
ment to riot or that religious liberty connotes the privi­
lege to exhort others to physical attack upon those be­
longing to another sect. When clear and present danger 
of riot, disorder, interference with traffic upon the 
public streets or other immediate threat to public 
safety, peace or order appears, the power of the State 
to prevent or punish is obvious.”

The appellants in the present case have emphasized re­
peatedly in the trials and in their arguments before the 
Court and in their Brief that no one of them individually 
committed any single act which was a violation of law. 
It is their contention that they had a right to assemble and 
act as they did so long as they did no other act which was 
in itself unlawful. Apparently they reject the proposition 
that an act which is lawful in some circumstances might be 
unlawful in others. The New York Court in answering a 
similar contention made by the defendant in the F e in e r  

case said:



7a

O r d e r

“We are well aware of the caution with which the 
courts should proceed in these matters. The intolerance 
of a hostile audience may not in the name of order be 
permitted to silence unpopular opinions. The Consti­
tution does not discriminate between those whose ideas 
are popular and those whose beliefs arouse opposition 
or dislike or hatred'—guaranteeing the right of free­
dom of speech to the former and withholding it from 
the latter. We recognize, however, that the State must 
protect and preserve its existence and unfortunate 
as it may be, the hostility and intolerance of street 
audiences and the substantive evils which may follow 
therefrom are practical facts of which the Courts and 
the law enforcement officers of the State must take 
notice. Where, as here, we have a combination of an 
aroused audience divided into hostile camps, an inter­
ference with traffic and a speaker who is deliberately 
agitating and goading the crowd and the police officers 
to action, we think a proper case has been made out 
under our State and Federal Constitutions for punish­
ment.”

In the present case the appellants were not prevented 
from engaging in their demonstration for a period of ap­
proximately an hour, nor wrere they hindered in any way. 
After such activity had gone on for approximately 45 
minutes, police officers saw that streets and sidewalks had 
been blocked by a combination of students and a crow7d of 
200 or 300 onlookers which had been attracted by their 
activities. They recognized potential troublemakers in the 
crowd of onlookers which was increasing by the minute. 
State and city authorities testified that in their opinions 
the situation which had been created by the students had



O rd e r

readied a point where it was potentially dangerous to the 
peace of the community. Instead of taking precipitous 
action even at this point, police authorities ordered the 
students to cease their activities and disperse, giving them 
the reasons for such order. The students were told that 
they must cease their activities in 15 minutes. The students 
refused to desist or to disperse. There is no indication 
whatever in this case that the acts of the police officers 
were taken as a subterfuge or excuse for the suppression 
of the appellants’ views and opinions. The evidence is clear 
that the officers were motivated solely by a proper concern 
for the preservation of order and the protection of the 
general welfare in the face of an actual interference with 
traffic and an imminently threatened disturbance of the 
peace of the community.

Petitioning through the orderly procedures of the Courts 
for the protection of any rights, either invaded or denied, 
has been followed by the American people for many years. 
It is the proper and the correct course to pursue if one is 
sincerely seeking relief from oppression or denial of rights. 
While it is a constitutional right to assemble in a hall to 
espouse any cause, no person has a right to organize demon­
strations which any ordinary and reasonable thinking citi­
zen knows or reasonably should know would stir up passions 
and create incidents of disorder.

The State of South Carolina, the City of Columbia, and 
the County of Richland in the exercise of their general 
police powers of necessity have the authority to act in 
situations such as are detailed in the evidence in these cases 
and if the conduct of their duly appointed officers of the 
law is not arbitrary, capricious and the result of prejudice 
but is founded upon clear, convincing and common sense 
reasoning, there is no denial of any right.



9a

O rder1

All exceptions of the appellants are overruled and the 
convictions and sentences are affii'med.

/ s /  Legare Bates,
S e n io r  J u d g e ,  R ic h la n d  C o u n ty  

C o u r t.

Columbia, South Carolina, 
July 10th, 1961.



10a

Opinion of the Supreme Court of South Carolina

THE STATE OF SOUTH CAROLINA 

I n T he Supreme Court

T he State,

— v . —

J ames E dwards, Jr., e t al.,

R e s p o n d e n t ,

A p p e l la n ts .

APPEAL PROM RICHLAND COUNTY, LEGARE BATES, COUNTY JUDGE
A ffirmed

L ewis, A .J . :

The appellants, one hundred eighty seven in number, 
were convicted in the Magistrate’s Court of the common 
law crime of breach of the peace. The charges arose out 
of certain activities in which the appellants were engaged 
in and about the State House grounds in the City of 
Columbia on March 2, 1961. The only question involved 
in their appeal to this Court is whether or not the evidence 
presented to the trial Court was sufficient to sustain their 
conviction. Conviction was sustained by the Richland 
County Court, from which this appeal comes. While the 
appellants have argued that their arrest and conviction 
deprived them of their constitutional rights of freedom of 
speech and assembly, guaranteed to them by both the 
State and Federal Constitutions, it is conceded in argu­
ment before us that whether or not any constitutional right 
was denied to them is dependent upon their guilt or in­
nocence of the crime charged under the facts presented



11a

O p in io n  o f  th e  S u p r e m e  C o u r t  o f  S o u th  C a ro lin a

to the trial Court. If their acts constituted a breach of the 
peace, the power of the State to punish is obvious. Feiner 
v. New York, 71 S. Ct. 303, 340 U. S. 315, 95 L. Ed. 295.

It is well settled that the trial Court must be affirmed 
if there is any competent evidence to sustain the charges 
and, in determining such question, the evidence and the 
reasonable inferences to he drawn therefrom must he 
viewed in the light most favorable to the State.

The testimony discloses the following events which re­
sulted in the arrest of the appellants and the issuance of 
warrants charging them with breach of the peace.

Shortly before noon on March 2, 1961, a group of ap­
proximately 200 Negro students, after attending a meet­
ing at the Zion Baptist Church in the City of Columbia, 
walked in groups of approximately fifteen each from the 
church along public sidewalks to the State House grounds, 
a distance of approximately six blocks. The purpose of 
the movement of the group to the State House was to 
parade about the grounds in protest to the General As­
sembly and the general public against the laws and cus­
toms of the State relative to segregation of the races, 
such demonstration to continue until, as the testimony 
shows, their conscience told them that the demonstration 
had lasted long enough. The General Assembly was in 
session at the time.

As they reached the State House grounds, the group 
was met by police authorities of the State and the City 
of Columbia. After a brief conference between their leader 
and police officers, the group proceeded to parade about 
the State House grounds. They continued to parade around 
the State House for approximately forty-five minutes 
during which time they met with no interference. Dur­
ing this forty-five minute period a crowd, evidently at-



12a

O p in io n  o f  th e  S u p r e m e  C o u r t  o f  S o u th  C a ro lin a

tracted by the activities of the paraders, began gathering 
in the area in front of the State House, known as the 
“horseshoe”, blocking the lanes for vehicular traffic through 
such area and materially interfering with the movement of 
pedestrian traffic on the sidewalks in the area and on side­
walks immediately adjacent. Vehicular traffic on the ad­
jacent city streets was noticeably and adversely affected by 
the large assemblage of paraders and the crowd which had 
overflowed the horseshoe area into the adjacent streets.

The traffic situation can best be understood in relation 
to the area involved. Columbia is the State Capitol. Main 
and Gervais Streets in Columbia intersect in front of the 
State House. Gervais Street runs in an east-west direc­
tion, along the northern side of the State House grounds. 
Main Street, running north and south, intersects Gervais 
Street in front of the State House, where it dead-ends. The 
area referred to as the “horseshoe” is in effect a continua­
tion of Main Street into the State House grounds. It is 
about % block in length and about the width of Main 
Street. Situated at the center of the entrance to the “horse­
shoe” is a monument, with space on each side for vehicular 
traffic to enter and leave the area. It is reserved for park­
ing of vehicles and, on the occasion in question, was filled 
with automobiles. It is a violation of law to block or im­
pede traffic in the area. Section 1-417, Cumulative Supple­
ment, 1952 Code of Laws. Sidewalks are located around 
the area for use by pedestrians.

The intersection of Main and Gervais Streets in front 
of the State House in Columbia is, by common knowledge, 
one of the busiest intersections in the State of South Caro­
lina, both from the standpoint of vehicular and pedestrian 
traffic.



13a

O p in io n  o f  th e  S u p r e m e  C o u r t  o f  S o u th  C a ro lin a

On.the occasion in question, in addition to the approxi­
mately 200 paraders in the area, there had gathered ap­
proximately 350 onlookers and the crowd was increasing. 
With the paraders and the increasingly large number of 
onlookers congregated in the above area seriously affect­
ing the flow of pedestrian and. vehicular traffic, the officers 
approached the admitted leader of the paraders and in­
formed him that the situation had reached the point where 
the activities of , the group should cease. They were told 
through their leader that they must disperse within fifteen 
minutes. The parade leader, accompanied by the police 
authorities, went among the paraders and informed them 
of the decision and orders of the police. The leader of the 
group refused to instruct or advise them to disperse but 
instead began a , fervent speech to the group and in re­
sponse they began to sing, shout, clap their hands and 
stamp their feet, refusing to disperse. After about fifteen 
minutes of this noisy demonstration, the appellants, who 
were engaging in the demonstration, were arrested by 
State and City officers and charged with the crime of 
breach of the peace. Upon the trial, all of the appellants 
were identified as participants in the parade and activities 
out of which the charge arose.

The warrants issued against appellants charge that they 
“on March 2, 1961, on the State Capitol grounds, on ad­
jacent sidewalks and streets, did commit a breach of the 
peace in that they, together with a large group of people, 
did assemble and impede the normal traffic, singing and 
parading with placards, failed to disperse upon lawful 
orders of police officers, all of which tended directly to 
immediate violence and breach of the peace in view of 
existing conditions.”



14a

O p in io n  o f  th e  S u p r e m e  C o u r t  o f  S o u th  C a ro lin a

“Breach of the peace is a common law offense which is 
not susceptible to exact definition. It is a generic term, 
embracing ‘a great variety of conduct destroying or men­
acing public order and tranquility’. Cantwell v. State of 
Connecticut, 310 U. S. 296, 60 S. Ct. 900, 905, 84 L. Ed. 1213, 
128 A. L. R. 1352.” State v. Randolph, 239 S. C. 79, 121 
S. E. (2d) 349.

The general definition of the offense of breach of the 
peace approved in our decisions is that found in 8 Am. Jur. 
834, Section 3 as follows: “In general terms, a breach of 
the peace is a violation of public order, a disturbance of 
the public tranquillity, by any act or conduct inciting to 
violence . . . , it includes any violation of any law enacted 
to preserve peace and good order. It may consist of an 
act of violence or an act likely to produce violence. It 
is not necessary that the peace be actually broken to lay 
the foundation for a prosecution for this offense. If what 
is done is unjustifiable and unlawful, tending with suffi­
cient directness to break the peace, no more is required. 
Nor is actual personal violence an essential element in 
the offense. . . .

“By ‘peace,’ as used in the law in this connection, is 
meant the tranquillity enjoyed by citizens of a municipality 
or community where good order reigns among its mem­
bers, which is the natural right of all persons in political 
society.”

See: Soulios v. Mills Novelty Co., 198 S. C. 355, 17 S. E. 
(2d) 869; State v. Langston, 195 S. C. 190, 11 S. E. (2d) 
1; Childers v. Judson Mills Store, 189 S. C. 224, 200 S. E. 
770; Webber v. Farmers Chevrolet Co., 186 S. C. I l l ,  195 
S. E. 139; Lyda v. Cooper, 169 S. C. 451, 169 S. E. 236.

In determining whether the acts of the appellants con­
stituted a breach of the peace, we must keep in mind that



15a

O p in io n  o f  th e  S u p r e m e  C o u r t  o f  S o u th  C a ro lin a

the right of the appellants to hold a parade to give expres­
sion to their views is not in question. They were not ar­
rested for merely holding a parade, nor were they arrested 
for the views which they held and were giving expression. 
Rather, appellants were arrested because the police au­
thorities concluded that a breach of the peace had been 
committed.

The parade was conducted upon the State House grounds 
for approximately forty-five minutes. It was not until 
the appellants and the crowTd, attracted by their activities, 
were impeding vehicular and pedestrian traffic upon the ad­
jacent streets and sidewalks that the officers intervened in 
the interest of public order to stop the activities of the ap­
pellants at the time and place. Notice was given to appel­
lants by the officers that the situation had reached the point 
where they must cease their demonstration. They were 
given fifteen minutes in which to disperse. The orders of 
the police officers under all of the facts and circumstances 
were reasonable and motivated solely by a proper concern 
for the preservation of order and prevention of further 
interference with traffic upon the public streets and side­
walks. The appellants not only refused to heed and obey 
the reasonable orders of the police, but engaged in a fiftten 
minute noisy demonstration in defiance of such orders.

The acts of the appellants under all the facts and circum­
stances clearly constituted a breach of the peace.

Affirmed.

Taylob, C .J ., Oxner, L egge and Moss, J J . ,  concur.



16a

D en ia l o f  P etition  fo r  R ehearing

IN THE SUPREME COURT OF SOUTH CAROLINA

T he State, 

—against—
R e s p o n d e n t ,

J ames E dwards, Jr., e t a l.,
A p p e l la n ts .

C E R T IF IC A T E

I, Harold R. Bonlware, hereby certify that I am a prac­
ticing attorney of this Court and am in no way connected 
with the within case. I further certify that I am familiar 
with the record of this case and have read the opinion of 
this Court which was filed December 5, 1961, and in my 
opinion there is merit in the Petition for Rehearing.

/ s /  H arold R. B oulware 
Harold R. Boulware

Columbia, South Carolina 
December 13,1961

(Indorsed on back of this document):

Petition denied.

s /  C. A. T aylor 

s /  G. Dewey Oxner 

s /  L ionel K. Legge 

s /  J oseph R. Moss 

s /  J . W oodrow L ewis



1 ■ •'

Supreme Court of the United States

October'T erm, 1961

No

JAMES EDWARDS, JR., and 186 Others, P etitioners,

versus

STATE OF SOUTH CAROLINA

B R IE F  IN OPPOSITION

DANIEL R. McLEOD,
Attorney General of S. C.,

J. C. COLEMAN, JR.,
EVERETT N. BRANDON, 

Assistant Attorney General, 
Wade Hampton Building, 

Columbia, South Carolina, 
Attorneys for Respondent.

Tha Ft. L. Bryan Company, Legal Printers, Columbia, S. C.



INDEX
P age

Question Presented ...........................................    1

Statement ...........    1

Argument ...............................................................................  2

Conclusion .............................   4

( i )



TABLE OF CASES
P age

Feiner v. New York, 340 U. S. 315 3

( i i i )



Supreme Court of the United States

O ctober T e r m , 1961

No

JAMES EDWARDS, JR., and 1S6 O t h e r s , P e t it io n e r s ,

v e r s u s

STATE OF SOUTH CAROLINA

BRIEF IN OPPOSITION

QUESTION PRESENTED
Where there was sufficient evidence before the trial 

court to sustain conviction of petitioners of the common 
law crime of breach of the peace, even though the acts out 
of which the charges arose were done in the course of the 
exercise of petitioners’ constitutional right to assemble and 
petition for redress of grievances.

STATEMENT
Petitioners, approximately two hundred strong, ap­

proached the State House grounds in the City of Columbia 
and announced that they intended to march in and about 
the grounds for the purpose of protesting certain laws of



2 J a m e s  E d w a r d s , J r ., et al,, P e t i t i o n e r s ,  v. S t a t e  o f  S .  C .

the State with which they were not in agreement (E. S3, 
R. 138). They proceeded to walk in and about the grounds 
in organized groups for approximately forty-five minutes 
without hindrance from anyone (R. 85).

Police officers had been stationed in the area for the 
purpose of maintaining order, and both the City Manager 
and the Chief of Police of the City of Columbia were pres­
ent during the entire episode (R. 50). Not only were peti­
tioners permitted to demonstrate for nearly an hour with­
out interference (R. 43), but they did so under protection 
of police officers. It was not until a breach of public order 
had actually occurred, caused by the activities of petition­
ers, that police authorities ordered petitioners to desist. A 
crowd of 300-350 onlookers, attracted by the activities of 
petitioners, had gathered, blocking sidewalks and streets, 
and adversely affecting traffic on adjacent streets (R. 44). 
Potential “troublemakers”, known to police, were seen in 
the crowd attracted to the scene by the petitioners (R. 33). 
In the opinion of responsible City authorities, a situation 
had developed which was potentially dangerous (R. 105).

Upon receiving instructions by the City Manager to 
disperse, petitioners refused to do so, expressing their de­
fiance by loud singing, shouting, chanting and stamping of 
feet (R. 40, R. 166), deliberately making a bad situation 
worse. It was not until after all these events had taken 
place that the arrests of petitioners were effected.

ARGUMENT
There is no conflict in the decision of the State Court 

with any principle enunciated by this Court.
The opinion of the State Court, set forth in the peti­

tion, pp. 10a-15a, appendix, does not hold, as is inferred by 
petitioners in the second question presented, p. 2, petition, 
that the convictions of petitioners could be affirmed be-



J a m e s  E d w a r d s , J r . ,  et al., P e t i t i o n e r s , v. S t a t e  o f  S .  C . 3

cause their activities “tended” to result in unlawful con­
duct on the part of other persons opposing petitioners’ 
views. The two concluding paragraphs of the opinion set 
forth with clarity the Court’s reasons for affirming the con­
victions :

• STATEMENT
“The parade was conducted upon the State House 

grounds for approximately forty-five minutes. It was 
not until the appellants and the crowd, attracted by 
their activities, were impeding vehicular and pedes­
trian traffic upon the adjacent streets and sidewalks 
that the officers intervened in the interest of public 
order to stop the activities of the appellants at the 

« time and place. Notice was given to appellants by the 
.officers that the situation had reached the point where 
they must cease their demonstration. They were given 
fifteen minutes in which to disperse. The orders of the 
police officers under all of the facts and circumstances 
were reasonable and motivated solely by a proper con­
cern for the preservation of order and prevention of 
further interference with traffic upon the public streets 
and sidewalks. The appellants not only refused to heed 
and obey the reasonable orders of the police, but en­
gaged in a fifteen-minute noisy demonstration in de­
fiance of such orders.

“The acts of the appellants under all the facts 
and circumstances clearly constituted a breach of the 
peace.”
The opinion of the Supreme Court of South Carolina 

is in accord with principles enunciated by this Court in 
F e in e r  v. N e w  Y o r k , 340 U. S. 315.



4 J a m e s  E d w a r d s , J r ., et a l ,  P e t i t i o n e r s , v . S t a t e  o f  S .  C .

CONCLUSION
WHEREFORE, for the foregoing reasons, it is re­

spectfully submitted that the petition for writ of certiorari 
should be denied.

Respectfully submitted,

DANIEL R. McLEOD,
Attorney General of S. C.,

J. C. COLEMAN, JR.,
EVERETT N. BRANDON, 

Assistant Attorney General, 
Wade Hampton Building, 

Columbia, South Carolina, 
Attorneys for Respondent.