Katzenbach v. McClung Jurisdictional Statement

    O ctober T erm , 1964

N icholas deB. K atzenbach, as A cting A ttorney 
General of th e  U nited S tates, et al., appellants

v.
Ollie  M cClung, S r., et al., appellees

A PP E A L FROM  TH E  U N ITED  S T A T E S  D IS T R IC T  COURT FO R TH E  
N O R T H E R N  D IS T R IC T  OF A LA B A M A

JURISDICTIONAL STATEMENT

A R C H IB A L D  COX.
Solicitor General,

D epartm ent o f Justice, W ashington, D.C., 20530.



J tt  M^itp ettte  fljjmtrt o f the S u ited  S ta tes
October T erm , 1964

No. 543
N icholas deB . K atzenbach, as A cting A ttorney 

General of th e  U nited S tates, et al., appellants

v.
Ollte M cClijng, S r., et al., appellees

A P P E A L FRO M  TH E  U N ITED  S T A T E S  D IS T R IC T  COURT F O R  TH E  
N O R T H E R N  D IS T R IC T  OF A L A B A M A

JURISDICTIONAL STATEMENT

O PIN IO N  BELOW

The opinion of the United States District Court 
for the Northern District of Alabama (Appendix A, 
infra) is not yet reported.

j u r i s d i c t i o n

On September 17, 1964, the three-judge district 
court declared unconstitutional that part of the Civil 
Rights Act of 1964 (P.L. 88-352, 78 Stat. 241) which 
prohibits racial discrimination by any restaurant “if 
a substantial portion of the food which it serves * * * 
has moved in commerce” (sections 201(a), (b)(2), 
(c)(2)), and enjoined the Attorney General and his

(i)
745- 696— 64------ 1



2

subordinates from enforcing the Act against appellees1 
restaurant. A notice of appeal to this Court was filed 
on September 17, 1964. By order of Mr, Justice 
Black, dated September 23, 1964, the injunction has 
been stayed.

The jurisdiction of this Court to review the decision 
of the district court is conferred by 28 U.S.C. 1252 
and 1253.1

CO N STITU TIO N A L A ND  STA TU TO R Y  PR O V ISIO N S IN V O LV ED

The Commerce Clause of the United States Con­
stitution, Article I, sec. 8, cl. 3, and Section 201 of 
Title I I  of the Civil Rights Act of 1964 (P.L. 88-352, 
78 Stat. 243) are reproduced in Appendix B, infra.

QUESTIONS PR E SE N T E D

1. Whether the complaint should be dismissed for 
want of equity jurisdiction.

2. Whether Title I I  of the Civil Rights Act of 1964 
is constitutional insofar as it prohibits racial dis­
crimination by a restaurant “if * * * a substantial 
portion of the food which it serves * * * has moved 
in commerce.”

STA TEM EN T

On July 31, 1964, appellees, who operate a restau­
rant located in Birmingham, Alabama, filed a complaint

1 Section 1252 authorizes a direct appeal from an interlocutory 
or final judgment holding an act of Congress unconstitutional. 
Section 1253 authorizes an appeal to this Court from an inter­
locutory or permanent injunction entered by a three-judge court. 
The decree herein is an interlocutory judgment or injunction, 
rather than a temporary restraining order; it is not limited to 
ten days (see F.R. Civ. Proc., Rule 65(b)), but is to continue in 
effect until further order of the district court.



3

in the district court challenging the constitutionality 
of the Civil Rights Act of 1964 insofar as it prohibits 
racial discrimination or segregation by restaurants. 
The complaint sought an injunction restraining the 
Attorney General and his subordinates from enforcing 
the Act against appellees’ establishment. On August 
4, 1964, pursuant to 28 U.S.C. 2282, a three-judge dis­
trict court was designated to hear and determine the 
ease. Appellants moved to dismiss on August 19, 
1964, and the case was heard on September 1, 1964 
On September 17, 1964, the court denied the Govern­
ment’s motion to dismiss, declared the challenged pro­
visions unconstitutional as applied to appellees’ res­
taurant, and granted appellees’ prayer for a pre­
liminary injunction.

The gravamen of the complaint is that appellees’ 
business is “essentially local in character. ” Appellees 
alleged that all of their food purchases are made 
“within the State of Alabama;” that the operation of 
the restaurant “in no way affects commerce” despite 
the fact that “some of the food served by [their res­
taurant] probably originates in some form outside the 
State of Alabama;” and that the restaurant does not 
serve interstate travelers. The complaint claimed that, 
as applied to appellees, the Act was unconstitutional, 
in that it exceeded the power of Congress to regulate 
commerce among the several states; deprived appellees 
of property without due process of law contrary to 
the Fifth Amendment; subjected them to involuntary 
servitude prohibited by the Thirteenth Amendment; 
was “in contravention of natural law;” and violated



4

the Tenth Amendment. An amendment to the com­
plaint raised the additional objection that the statute 
contravened appellees’ rights guaranteed by the First 
Amendment. I t  was further claimed that a genuine 
threat existed that, unless enjoined and restrained, the 
Attorney General would seek to enforce the Act 
against appellants to their irreparable and serious 
injury, in an amount far in excess of $10,000.

The government’s motion to dismiss asserted that 
no “ case or controversy” was presented within the 
meaning of Article I I I  of the Constitution; that ap­
pellees were not threatened with any injury suffi­
cient to justify the exercise of equity jurisdiction; 
that appellees had an adequate remedy at law by 
way of a defense to any enforcement proceeding 
which might be brought against t hem under Title I I  
of the 1964 Act; and that, in any event, the Act is 
constitutional.

The holding of the district court that the challenged 
provision was invalid was premised upon its view 
that, although a substantial portion of the food served 
by the restaurant is obtained through interstate chan­
nels, it comes to rest before being sold by the restau­
rant and hence is no longer subject to federal regula­
tion under the Commerce Clause.

T H E  QUESTIONS A B E  SU B STA N TIA E

The issues presented by this appeal are of obvious 
importance.

The threshold issue is whether equity jurisdiction 
may be invoked in the absence of enforcement pro­
ceedings to draw in question the validity of this



5

federal statute at the instance of any proprietor who 
might be covered by its terms, despite the fact that 
neither criminal prosecution nor money damages are 
provided for in the Act and there is accordingly no 
threat of any legal injury.

The second issue is the constitutionality of a statute 
which has undeniable significance for the Nation and 
was enacted at “ the culmination of one of the most 
thorough debates in the history of Congress.” Mr. 
Justice Black, opinion denying application for a stay, 
Heart of Atlanta Motel v. United States, O.T. 1964, 
August 10, 1964.

In granting a stay of the district court’s injunc­
tion entered in the instant case, Mr. Justice Black 
declared that the issues are “ important” and that 
“ their final determination should not be unnecessarily 
delayed.” He also indicated that the Court is pre­
pared to set the case down for argument immediately 
following the related Heart of Atlanta case, which is 
scheduled to be heard on October 5, 1964. We be­
lieve it unnecessary in these circumstances to labor 
the obvious proposition that the case is one of high 
importance' and merits plenary consideration.

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that probable jurisdiction should be noted.

Archibald Cox, 
Solicitor General.

October 1964.





APPENDIX A

In  the United States District Court for the Northern 
District of Alabama, Southern Division

Civil Action No. 61-448

Ollie  M cClung, Sr., and Ollie M cC lung, J r.,
PLAINTIFFS

V S .

N icholas deB . K atzenbach , as A cting A ttorney 
General of the  U nited S tates of A merica, et al.,

DEFENDANTS

In  conformity with the per curiam opinion of this 
court, contemporaneously entered herewith:

I t  is Ordered, A djudged and D ecreed by the court 
that the defendant, Nicholas deB. Katzenbach, as Act­
ing Attorney General of the United States of Amer­
ica, and his agents, servants, employees, successors in 
office and those in concert with him who shall receive 
notice of this order, be and they are hereby tem­
porarily restrained and enjoined from enforcing the 
provisions of title I I  of the Civil Rights Act of 1964 
against plaintiffs, Ollie McClung, Sr. and Ollie Mc- 
Clung, Jr., as partners operating a restaurant under 
the trade name “Ollie’s Barbecue” at 902 7th Avenue 
South, in Birmingham, until further order of this 
court.

(7)



8

Done, this the 17th day of September 1964.
W alter P. Gravin',

Circuit Judge. 
Seybourn H . L ynne ,

District Judge. 
H. H. Grooms,

District Judge.

[Caption omitted]
In  conformity Avith the per curiam opinion of this 

court, contemporaneously entered herewith:
I t  is Ordered, Adjudged and  D ecreed by the court 

that the  m otion in  behalf of defendan ts to  dism iss the 
complaint h ere in  be and  the same is hereby overruled .

Done, this the 17th day of September 1964.
W alter P. Geavin,

Circuit Judge.
Seybourn H. L ynne ,

District Judge.
H. H. Grooms,

District Judge.



9

[Caption omitted]

Before (Jewin ', Circuit Judge, and  L ynne and  
Grooms, District Judges.

P er Cu r ia m : This is a suit by the owners and 
operators of a restaurant business in Birmingham, 
Alabama, seeking to enjoin the enforcement of the 
provisions of title I I  of the Civil Rights Act of 19641 
on the ground that they are unconstitutional. A stat­
utory three-judge court was convened pursuant to 28 
U.S.C.A. § 2282, and the case was set down for hear­
ing on September 1, 1964, on plaintiffs’ prayer for a 
temporary injunction. P rio r . to the hearing the 
defendants moved to dismiss the complaint on the 
separate grounds that (1) the court lacks jurisdiction 
over defendant Robert F. Kennedy2 as Attorney Gen­
eral of the United States, because of insufficient 
service of process; (2) since defendant Robert F. 
Kennedy is an indispensable party, the insufficiency 
of service of process upon him renders co-defendant 
Macon L. Weaver, United States Attorney for the 
Northern District of Alabama, an improper party 
defendant; (3) the complaint fails to state a claim 
upon which relief can be granted; and, (4) the court 
lacks equitable jurisdiction because plaintiffs have an 
adequate remedy at law. This motion was heard by 
and submitted to the full court on briefs and oral 
argument of counsel on September 1, 1964, and was 
taken along with plaintiff’s prayer for a temporary 
injunction.

1 Public Law 88-352; 78 Stat. 241.
2 Since Robert F. Kennedy tendered his resignation as Attor­

ney General of the United States, which was accepted after 
submission of this case to the court and since Nicholas deB. 
Katzenbach has been appointed Acting Attorney General of 
the United States, the said Katzenbach is hereby substituted, 
in his official capacity, for the said Kennedy as a party de­
fendant, as provided by Rule 25(d) (1) Fed. R. Civ. P.

745- 696— 64---------- 2



10

T H E  M OTION TO D ISM ISS

The first two grounds for dismissal, both based upon 
the theory that service of process upon the Attorney 
General was defective, are no longer in issue. Service 
of process upon the Attorney General was made 
initially by certified mail in accordance with the pro­
visions of 28 U.S.C.A. § 1391(e), and defendants con­
tended that because fictitious parties were joined as 
defendants the provisions of section 1391(e) were in­
applicable. Thereafter, plaintiffs amended their com­
plaint by striking and dismissing therefrom the un­
served fictitious parties and caused the complaint as 
amended to be re-served upon the Attorney General 
under section 1391(e). I t  was conceded by counsel 
for defendants on argument that the first two grounds 
in their motion to dismiss were thereby eliminated 
and accordingly are considered abandoned.

Defendants have also insisted in their brief and oral 
argument that the complaint does not present an 
actual controversy between the parties and that the 
adequacy of legal remedies deprives this court of 
equitable jurisdiction. These grounds were argued 
in the hearing on plaintiffs’ prayer for temporary in­
junction at which evidence was adduced developing 
the undisputed facts set out below.3

31. Plaintiffs are partners operating a restaurant under the 
trade style “Ollie’s Barbecue” at 902 Seventh Avenue South, 
in Birmingham.

2. The plaintiffs’ family has operated such restaurant under 
the same name and at the same location since 1927.

3. Plaintiffs’ restaurant specializes in barbecued meats and 
homemade pies; approximately 90 to 95 per cent of its sales 
consist of such items and nonalcoholic beverages.

4. Plaintiffs’ restaurant, when filled to capacity, will seat 
approximately 220 persons; its trade is derived from local 
regular customers who are for the most part known to the



11

Contending that there has not been a sufficient show­
ing of a specific threat of immediate enforcement of 
title I I  of the act as to the plaintiffs, defendants insist

plaintiffs; its trade is predominantly composed of white col­
lar business people and family groups. Plaintiffs feature in 
their restaurant a wholesome atmosphere in which no profanity 
or consumption of alcoholic beverages is allowed. The restau­
rant is closed on Sunday. Plaintiffs have in the past declined 
service to persons who have been profane and have given the 
appearance of drinking alcoholic beverages.

5. Plaintiffs’ restaurant is located in an area of Birming­
ham in which are located primarily residences occupied by 
Negroes and light industrial development; in the nearby vi­
cinity are several Negro churches and schools attended by 
Negro children.

6. The restaurant is eleven blocks from the nearest inter­
state highway, a somewhat greater distance from the nearest 
railroad station and bus station and between six and eight 
miles from the nearest airport.

7. Plaintiffs seek no transient trade and do no advertising 
of any kind except for the maintenance of a sign on their 
own premises. To their knowledge plaintiffs serve no inter­
state travelers.

8. In  the twelve months preceding the passage of the Civil 
Bights Act of 1964, plaintiffs purchased approximately $150,- 
000 worth of food, all locally. Approximately 55 per cent 
of this was for meat and between 80 and 90 per cent of the 
meat purchases were from George A. Hormel & Company, at 
its Birmingham branch. Its  purchases from Hormel for that 
period were shown to be $69,788. All of the meat purchased 
from Hormel was shipped to its Birmingham branch from out­
side the State of Alabama.

9. Plaintiffs employ 36 persons a t their restaurant, approxi­
mately two-thirds of whom are Negro. Plaintiffs personally 
prepare food and serve customers. Plaintiffs and some of their 
employees would not voluntarily serve meals to Negroes.

10. Since July 2, 1964, plaintiffs have not complied with the 
Civil Bights Act of 1964; they have, in fact, on more than one 
occasion, refused service to Negroes on an equal basis with



12

alternatively that it is not alleged that defendants 
either have instituted enforcement proceedings against 
the plaintiffs or have conducted an investigation to de­
termine whether plaintiffs have violated the act, and 
that insufficient facts are alleged to bring the plain­
tiffs within the coverage of the act.

In  urging that the allegations are insufficient to 
show coverage, defendants point first to averments in 
the complaint respecting the remoteness of plaintiffs’ 
business from any place normally frequented by inter­
state travelers, the absence of any advertising by 
them and the averment that to their knowledge they 
serve no “interstate travelers” as that term is used 
in the act. I t  is true that these allegations, substan­
tiated by evidence at the hearing, tend strongly to 
indicate an absence of coverage under title I I  insofar 
as it relates to a restaurant which “serves or offers to 
serve interstate travelers,” and defendants have made 
no contention that they are covered by virtue of that 
part of the act.

Defendants then seize upon the averment that 
“some” of the food served in plaintiffs’ restaurant 
originated in some form outside of Alabama. This 
use of the word “ some”, say defendants, is insufficient 
because the act uses the term “substantial” in defin­
ing the portion of a restaurant’s food which must 
move in commerce in order that it be within the al-
white customers and on such occasions plaintiffs have been 
in actual violation of the act.

11. Because of their location and the manner of conducting 
their business, plaintiffs would lose a substantial amount of 
business if forced to serve Negroes in their restaurant. From 
its beginning, plaintiffs’ restaurant has served only white trade.

12. A substantial portion of the food served in plaintiffs’ 
restaurant has moved in commerce and plaintiffs have, since 
July 2, been in violation of the Civil Rights Act of 1964.



13

ternative criterion of coverage prescribed by section 
201(e)(2). We are of the opinion that the meaning 
of the term “ substantial” as there used must and 
can only be determined judicially, and we conclude 
as a matter of law, on the basis of objective evidence, 
that a “ substantial” portion of the food served by 
plaintiffs has moved in commerce within the meaning 
of the act.

As defendants note, the complaint avers neither 
that enforcement proceedings have been instituted 
against plaintiffs nor that their restaurant was investi­
gated by defendants prior to the commencement of 
the action. Plaintiffs do aver that prior to its filing 
they had violated the provisions of title I I  applicable 
to their restaurant by refusing to provide service to 
Negroes on the same basis as they provide to their 
other customers, and the evidence shows that since 
its commencement they have consistently continued 
and will continue thus to violate the act. In  this re­
spect alone the circumstances of this case are quite 
different from those existing in the cases urged by 
defendants in support of their position that this suit 
presents no justiciable controversy.

One of the plaintiffs testified further that he was 
caused in large part to institute this action by the 
fact that the defendants two days previously had 
filed in this court an enforcement suit against other 
persons operating restaurants of a similar character, 
and it appears from the complaint in that su it4 that 
the act’s coverage was invoked in part upon the basis 
that a substantial part of their food had moved in 
commerce. And plainly the Attorney General has 
indicated an intention to enforce the provisions of 
title I I  as against its violators. We cannot say, in 
these circumstances, that enforcement against plain­

4 Civil Action No. 64-443, Northern District of Alabama.



14

tiffs was not reasonably imminent when this action 
was commenced, and no case cited by defendants or 
found by us has held under comparable circumstances 
that for this reason an actual controversy did not 
exist.

There are, moreover, many instances in which a 
threat of imminent enforcement of a law has not 
been considered requisite to the existence of a justici­
able controversy or the exercise by federal courts of 
equitable jurisdiction in similar suits seeking antici­
patory relief from the operation and enforcement 
of the law.

In  their complaint plaintiffs attack the validity of 
title I I  of the act in its entirety. The act requires in 
positive terms that the plaintiffs, in the operation of 
their restaurant, afford to all persons “ the full and 
equal enjoyment of the goods, services [and] facili­
ties.” Consequently, as to the plaintiffs, title I I  
creates a mandatory duty to which it commands im­
mediate obedience. As against this, the plaintiffs 
contend, and it is the object of this suit to determine, 
that they have a constitutional right to operate their 
business free of the restrictions now imposed upon it 
by the act. They aver, and have shown by evidence, 
that these requirements of title I I  will cause sub­
stantial and irreparable injury to their business. 
Thus, the substance of the allegations and proof is 
that the provisions of title I I  and the duty it imposes 
constitute a present injurious inpingement upon the 
plaintiffs’ property rights. The existence of a justi­
ciable controversy as well as the equitable jurisdiction 
of the federal courts and the right to injunctive relief 
have been unheld often under similar circumstances. 
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; 
Pennsylvania v. West Virginia, 262 U.S. 553 (1923) ; 
Carter v. Carter Coal Co., 298 U.S. 238 (1936); Pub-



15

lie Utilities Comm’n of California v. United States, 
355 U.S. 534 (1958) ; Adler v. Board of Education, 342 
U.S. 485 (1952) ; Pierce v. Society of Sisters, 268 U.S. 
510 (1925); Currin v. Wallace, 306 U.S. 1 (1939); 
Terrace v. Thompson, 263 U.S. 197 (1923) ; Wickard 
y. Filburn, 317 U.S. I l l  (1942). I t  is our considered 
opinion that these decisions are controlling upon the 
present case and that defendants’ motion to dismiss 
the complaint therefore should be overruled.

T H E  M E R IT S

Having negotiated the procedural hurdles, we pro­
ceed to an examination of title I I  of the Civil Rights 
Act of 1964:

Section 201. (a) All persons shall be entitled 
to the full and equal enjoyment of the goods, 
services, facilities, privileges, advantages, and 
accommodations of any place of public accom­
modation, as defined in this section, without 
discrimination or segregation on the ground of 
race, color, religion, or national origin.

(b) Each of the following establishments 
which serves the public is a place of public 
accommodation within the meaning of this title 
if its operations affect commerce, or if discrimi­
nation or segregation by it is supported by 
State action: * * *

* * * * *

(2) any restaurant, cafeteria, lunchroom, 
lunch counter, soda fountain, or other fa­
cility principally engaged in selling food 
for consumption on the premises, including, 
but not limited to, any such facility located 
on the premises of any retail establishment; 
or any gasoline station ;

* * * * *

(c) The operations of an establishment affect 
commerce within the meaning of this title if 
* * * (2) in the case of an establishment de-



16

scribed in paragraph (2) of subsection (b), it 
serves or offers to serve interstate travelers or 
a substantial portion of the food which it serves, 
or gasoline or other products which it sells, has 
moved in commerce. * * *

(Emphasis supplied.)
Contending that the foregoing portions of the act, 

as applied to the local business which they operate, 
are unconstitutional, plaintiffs insist that when private 
establishments within the confines of the respective 
states, in the lawful and legitimate exercise of their 
private discretion, wish to select their customers there 
is no power, under the Constitution, or any of its 
amendments, granted to the federal government to 
regulate such private accommodations.

The heart of the federal compact beats in the tenth 
amendment of the Constitution: “The powers not dele­
gated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the 
States respectively, or to the people. ’ ’ Thus it is to the 
Constitution and its amendments that we must look 
to determine whether Congress possesses the power 
it has in this instance sought to exercise.

Insofar as we can determine from a review of the 
legislative history of the ac t5 and the extensive de­
bates in the Senate relevant to title II,6 the only 
three suggested sources of congressional power were

511 U.S. Code Cong. & Ad. News 1727-1891, 88th Cong., 2d 
Sess. (July 20, 1964).

6 V Cong. Rec. 4757, 4593-4598, 4643^1655, 4680-4681, 4833- 
4835, 4906, 5066-5072, 5091-5104; VI Cong. Rec. 5454-5458, 
5539-5543, 5690-5693, 5770-5771, 5851-5855, 5865-5871, 5879-5889, 
6003, 6212-6214, 6234-6240; V II Cong. Rec. 6307, 6334-6344, 
7039-7041; V III Cong. Rec. 7552-7558, 7677-7684, 7816-7825, 
7837-7854, 7966-7967, 8029, 8092, 8371, 8805-8806; IX  Cong. Rec. 
8849. (1964).



17

the thirteenth amendment, the fourteenth amendment, 
and the commerce clause.

At oral argument counsel for defendants forth­
rightly stated their opinion that the thirteenth amend­
ment was neither authority for nor prohibitory of this 
legislation. We agree, thereby rejecting the argu­
ment of plaintiffs that the effect of such act is to 
impose upon them a condition of involuntary servi­
tude in violation of such amendment.7

I t cannot be successfully contended that the above 
quoted portions of the act may be constitutionally 
applied to these plaintiffs under the grant of legis­
lative power contained in the fourteenth amendment8 
since it was conceded at oral argument that the State 
of Alabama, in none of its manifestations, has been 
involved in the private conduct of plaintiffs in refus­
ing to serve food to Negroes for consumption on the 
premises. Civil Rights Gases, 109 U.S. 3 (1883) ; 
Peterson v. Greenville, 373 U.S. 244 (1963).

In any discussion of the commerce clause as a grant 
of power to the national government to regulate ac­
tivities commonly described as private and local we 
keep in mind the admitted fact that a majority of 
sincere and conscientious members of Congress be­
lieved this legislation to be in the national interest 
and necessary to end practices which they consider 
debasing to human dignity. Of course, we express

7 Compare: Butler v. Perry, 240 U.S. 328 (1916) ; Brown 
Holding Co. v. Feldman, 256 U.S. 170 (1921); State v. 
Sprague, 32 U.S.L.Week 2610 (New Hampshire Sup. Ct. 
1964); Scheiber, The Thirteenth Amendment and F re e d o m  of 
Choice m  Personal Service Occupations: A  Reappraisal, 49 Cor­
nell U.Q. 508 (1964).

8 Section 5 thereof reads as follows: “The Congress shall
have power to enforce, by appropriate legislation, the provisions 
of this article.” !



18

no opinion as to the wisdom of the legislation and 
confine our consideration to the constitutionality of 
the provisions with which we are concerned.

The commerce clause, appearing in article 1, sec­
tion 8 of the Constitution, reads as follows:

“The Congress shall have Power * * * 
* * * * *

“ To regulate Commerce with foreign Na­
tions, and among the several States, and with 
the Indian Tribes;

* * * * *

* * *—And to make all Laws which shall he 
necessary and proper for carrying into Execu­
tion the foregoing Powers * *

The language is simple and unadorned. I t  has re­
mained unchanged since 1789. With reference to it, 
to allay popular misgivings as to the nature and ex­
tent of powers vested in the Union by the new Consti­
tution, James Madison wrote, “The regulation of 
commerce, it is true, is a new power; but that seems 
to be an addition which few oppose, and from which 
no apprehensions are entertained.” 9 And Alexander 
Hamilton made it clear that the commerce clause was 
intended to restrain the “interfering and unneigh- 
borly regulations of some states.” 10 11 In  spite of its 
simplicity and clarity and because of the constantly 
increasing “ interpenetrations of modem society,” 11 
it has spawned thousands of eases.

In  Civil Rights Cases, 109 U.S. 3 (1883), at page 
10, Mr. Justice Bradley characterized section 1 of the 
Civil Rights Act of 1875: “Its effect is to declare, that 
in all inns, public conveyances and places of amuse­
ment, colored citizens, whether formerly slaves or not,

9The Federalist No. 45 (Madison).
10 The Federalist No. 22 (Hamilton).
11 Polish Alliance v. Labor Board, 322 U.S. 643, 650 (1944).



19

and citizens of other races, shall have the same accom­
modations and privileges in all inns, public convey­
ances, and places of amusement as are enjoyed by 
white citizens; and vice versa.” Thereafter, he posed 
and answered a question: “ Has Congress constitu­
tional power to make such a law? Of course, no one 
will contend that the power to pass it was contained 
in the Constitution before the adoption of the last 
three amendments [thirteenth, fourteenth and fif­
teenth].” Since the commerce clause had been in the 
Constitution for almost one hundred years and since 
we are advised that the Solicitor General in brief had 
urged upon the court the sufficiency of its grant of 
power to sustain the challenged legislation, Mr. Jus­
tice Bradley’s pronouncement is, to say the least, 
highly intriguing and might be accorded more than 
persuasive authority but for the subsequent statement 
in Butts v. Merchants Transp’n Co., 230 U.S. 126 
(1913), at page 132:

“The question of the constitutional validity of 
those sections came before this court in Civil 
Bights Cases, 109 TI.S. 3, and upon full con­
sideration it was held (a) that they received 
no support from the power of Congress to regu­
late interstate commerce because, as is shown 
by the preamble and by their terms, they were 
not enacted in the exertion of that power * *

While we shall not attempt the impossible task of a 
precise delineation of the contours of the power to 
regulate interstate commerce granted the Congress or 
the Herculean labor of analyzing the multitudinous 
cases dealing with various aspects of what may be 
termed primary and implied power, we shall make an 
effort to distill from the decided eases a definitive 
statement of such power which may be applied to this 
case only.



20

Some presuppositions are permissible; indeed they 
are required by the teaching of Wickard v. Filburn, 
317 U.S. 111, 120, “At the beginning Chief Justice 
Marshall described the federal commerce power with 
a breadth never yet exceeded. Gibbons v. Ogden, 9 
Wheat. 1, 194-195.” ; of Swift v. United States, 196 
U.S. 375, 398, “* * * commerce among the States is 
not a technical legal conception, but a practical one, 
drawn from the course of business.” ; of The Pipe 
Line Cases, 234 U.S. 548, 560-61, “The control of 
Congress over commerce among the States cannot be 
made a means of exercising powers not entrusted to 
it by the Constitution * * and, of Labor Board v. 
Jones be, Laughlin, 301 U.S. 1, 30, “The authority of 
the federal government may not be pushed to such 
an extreme as to destroy the distinction, which the 
commerce clause itself establishes, between commerce 
‘among the several States’ and the internal concerns 
of a State. That distinction between what is national 
and what is local in the activities of commerce is vital 
to the maintenance of our federal system.”

Proceeding to explicate our understanding of the 
nature and extent of the power with which we are 
concerned, it is quite unnecessary to labor the obvious, 
that the commerce clause constitutes an express grant 
of power to Congress to regulate interstate commerce, 
which consists of the movement of persons, goods or 
information from one State to another. The eases are 
legion sustaining its exercise in this area.12 Its power

12 E.g. United States v. International Boxing Club, 348 U.S. 
236 (1955); United States v. Shubert, 348 U.S. 222 (1955); 
Radovieh v. National Football League, 352 U.S. 445, 455 
(1957); United States v. Frank ford Distilleries, 324 U.S. 293 
(1945).



21

is not restricted, however, to the regulation of inter­
state commerce. Congress is further invested with 
the power to regulate intrastate activities, but only to 
the extent that action on its part is necessary or ap­
propriate to the effective execution of its expressly 
granted power to regulate interstate commerce.

The power of Congress to regulate wholly intra­
state activities is brought into play only when those 
activities have such a close and substantial relation 
to interstate commerce that their control is essential 
or appropriate to protect that commerce from prac­
tices within a State which burden its freedom or ob­
struct its flow.13 14 The exercise of such power must 
necessarily be prospective, for the reason, that, unlike 
Tennyson’s brook, interstate commerce does not run 
on forever. At some time it must come to an end 
within the boundaries of some State.11

This century has witnessed a dynamic expansion of 
federal control not only of the movements of com­
merce between the states but also of intrastate activ­
ities which have been found to burden its freedom or 
obstruct its flow. Thus Congress has exercised its 
power granted by the commerce clause to enact the

13 United States v.. Wrightwood Dairy Go., 315 U.S. 110 
(1942); Bethlehem Steel Go. v. New York State Labor Rela­
tions Board, 330 U.S. 767 (1947) ; Santa. Cruz Co. y. NLRB, 
303 U.S. 453 (1938); Labor Board v. Jones <& Laughlin, 301 
U.S. 1 (1937); Edison Go. v. Labor Board, 305 U.S. 197 
(1938); Labor Board v. Fainblatt, 306 U.S. 601 (1939); United 
States y. Darby, 312 U.S. 100 (1941).

14 Gibbons y. Ogden, 9 Wheat. 1 (1824); Scheater Corp. v. 
United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co., 
298 U.S. 238 (1936); Welton v. Missouri, 91 U.S. 275 (1875); 
Bowman y. Chicago <$> N. Ry., 125 U.S. 465 (1888); Packer 
Corporation v. Utah, 285 U.S. 105 (1932); Florida v. United 
States, 282 U.S- 194 (1931); Yonkers v. United States, 320 U.S. 
685 (1944); Palmer v. Massachusetts, 308 U.S. 79 (1939).



22

Robinson-Patman Act/5 the Federal Food, Drug and 
Cosmetic Act/6 the White Slave Laws/7 the Gambling 
Devices Transportation Act/8 the Agricultural Ad­
justment Act of 1938/3 the Fair Labor Standards 
Act/0 and the National Labor Relations Act/1 among 
others.

Concededly, the latter three, in broad extension of 
federal control, have immediate, direct, and practical 
impacts upon activities which were at one time con­
sidered wholly intrastate in nature thus resting in the 
domain of state control.

La each instance Congress cautiously made clear 
legislative findings that the regulation of the intra­
state practices dealt with was necessary or appropri­
ate to the effective execution of its expressly granted 
power to regulate interstate commerce. In the Na­
tional Labor Relations Act such findings are set forth 
in 29 U.S.C.A. § 151. Moreover, assurance was given 
that regulation of essentially local matters would ap­
ply only where there was an actual effect on inter­
state commerce by requiring that this be determined 
administratively or judicially on a record in each 
individual case. 29 U.S.C.A. §§ 159(c) and 160(a). 
In  the Agricultural Adjustment Act Congress made 
elaborate findings to establish an effect on commerce 
of the intrastate activities sought to be regulated. 7 
U.S.C.A. §§ 1311, 1321, 1331,1341, 1351, 1357, 1379(a), 
and 1380.

The Fair Labor Standards Act contains a built-in 
limitation on its enforcement by requiring a judicial

15 52 Stat. 446 15 U.S.C.A. § 13(c).
10 52 Stat. 1040, as amended, 21 U.S.C.A. §§ 301-392.
17 36 Stat. 825, as amended, 18 U.S.C.A. §§ 2421-2424.
18 64 Stat. 1134,15 U.S.C.A. §§ 1171-1177.
18 52 Stat. 31, as amended, 7 U.S.C.A. §§ 1281-1407.
20 52 Stat. 1060, as amended, 29 U.S.C.A. §§ 201-219.
2149 Stat. 449, as amended, 29 U.S.C.A. §§ 151-159.



23

determination of the ultimate fact that acts of em­
ployers or employees actually affect such commerce 
on a case by case basis.

The Civil Rights Act of 1964 contains no legislative 
findings and we proceed to a critical examination of 
its provisions to determine whether it may neverthe­
less successfully survive the constitutional challenge. 
I t  is our opinion that neither of the three above- 
mentioned acts is an apposite analogy and that the 
cases arising thereunder afford scant persuasive au­
thority beyond the broad principles enunciated 
therein.2*

The duty of this court is classically defined in 
United States v. Butler, 297 U.S. at pages 62 and 63:

“ There should be no misunderstanding as to 
the function of this court in such a case. I t  is 
sometimes said that the court assumes a power 
to overrule or control the action of the people’s 
representatives. This is a misconception. The 
Constitution is the supreme law of the land

22 That the National Labor Relations Act may not be analo­
gized to the Civil Rights Act of 1964 and that the power of 
Congress is not plenary with respect to the regulation of activi­
ties not themselves interstate commerce is made crystal clear by 
Mr. Justice Black’s concurring opinion in Polish Alliance v. 
Labor Board, 322 U.S. 643, 652:

“The doctrine that Congress may provide for regulation of 
activities not themselves interstate commerce, but merely ‘af­
fecting’ such commerce, rests on the premise that in certain 
fact situations the federal government may find that regulation 
of purely local and intrastate commerce is ‘necessary and 
proper’ to prevent injury to interstate commerce * * *. In  ap­
plying this doctrine to particular situations this Court prop­
erly has been cautious, and has required clear findings before 
subjecting local business to paramount federal regulation * * *. 
I t  has insisted upon ‘suitable regard to the principle that 
whenever the federal power is exerted within what would 
otherwise be the domain of state power, the justification of the 
exercise of the federal power must clearly appear.’ * *



24

ordained and established by the people. All 
legislation must conform to the principles it 
lays down. When an act of Congress is ap­
propriately challenged in the courts as not 
conforming to the constitutional mandate the 
judicial branch of the Government has only 
one duty,—to lay the article of the Constitu­
tion which is invoked beside the statute which 
is challenged and to decide whether the latter 
squares with the former. All the court does, 
or can do, is to announce its considered judg­
ment upon the question. The only power it 
has, if such it may be called, is the power of 
judgment. This court neither approves no[r] 
condemns any legislative policy. Its delicate 
and difficult office is to ascertain and declare 
whether the legislation is in accordance with, 
or in contravention of, the provisions of the 
Constitution; and having done that, its duty 
ends.

‘ ‘ The question is not what power the Federal 
Government ought to have but what powers in 
fact have been given by the people. I t  hardly 
seems necessary to reiterate that ours is a dual 
form of government; that in every state there 
are two governments,—the state and the United 
States. Each State has all governmental pow­
ers save such as the people, by their Constitu­
tion, have conferred upon the United States, 
denied to the States, or reserved to themselves. 
The federal union is a government of delegated 
powers. I t  has only such as are expressly 
conferred upon it and such as are reasonably 
to be implied from those granted. In this re­
spect we differ radically from nations where 
all legislative power, without restriction or 
limitation, is vested in a parliament or other 
legislative body subject to no restrictions except 
the discretion of its members.”

Paraphrased, for clarity of discussion, title I I  of 
the act declares that no restaurant may refuse service 
to any person because of his race, color, religion, or



25

national origin either if it serves or offers to serve 
interstate travelers or a substantial portion of the 
food which it serves has moved in commerce.

No case has been called to our attention, we have 
found none, which has held that the national govern­
ment has the power to control the conduct of people 
on the local level because they may happen to trade 
sporadically with persons who may be traveling in 
interstate commerce. To the contrary, see Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845 (4th 
Cir. 1959) ; Elizabeth Hospital, Inc. V. Richardson, 
269 F. 2d 167 (8th Cir. 1959) ; United States v. Yellow 
Cab Co., 332 TJ.S. 218 (1947).

On the authority of the cases collected in footnote 
14, infra, we believe it to be a settled rule of consti­
tutional law that goods cease to constitute a part of 
interstate commerce, and become a part of the general 
property in a state, and amenable to its laws, when 
they are sent into a state, either for the purpose of 
sale or in consequence of a sale. The simple truth 
of the matter is that Congress has sought to put an 
end to racial discrimination in all restaurants wher­
ever situated regardless of whether there is any 
demonstrable causal connection between the activity of 
the particular restaurant against which enforcement 
of the act is sought and interstate commerce.

If  our premise is correct, Congress sought to 
achieve its end by the sophisticated means of first 
declaring a restaurant is a place of public accommo­
dation if its operations affect commerce and by there­
after abandoning the “affect commerce” requirement 
by legislating what is tantamount to a conclusive pre­
sumption that its operations do affect commerce if it 
is proved either that it serves or offers to serve inter­
state travelers or that a substantial portion of the 
food which it serves has at some time, however re-



26

mote, moved in commerce. The courts will not sus­
tain a presumption when there is “no rational con­
nection between the fact proved and the ultimate fact 
presumed, if the inference of the one from proof of 
the other is arbitrary because of lack of connection 
between the two in common experience.’7 Tot v. 
United States, 319 U.S. 463, at 6j^-6ji8. The issues 
presented in the instant case require our considera­
tion of only that portion of the statute relating to res­
taurants which serve food “ a substantial portion” of 
which “has moved in commerce.”

If  Congress has the naked power to do what it has 
attempted in title I I  of this act, there is no facet of 
human behavior which it may not control by mere leg­
islative ipse dixit that conduct “affeet[s] commerce” 
when in fact it does not do so at all, and rights of the 
individual to liberty and property are in dire peril.

We conclude that title I I  of the Civil Rights Act of 
1964, as applied to the business operated by these 
plaintiffs, was beyond the competence of Congress to 
enact and that its enforcement against plaintiffs 
under the circumstances of this case would be viola­
tive of the fifth amendment of the Constitution of the 
United States, in pertinent part reading: “Ro person 
shall be * * * deprived of * * *, liberty, or prop­
erty, without due process of law; * * *” Accord­
ingly, they are entitled to the relief for which they 
pray.

This 17th day of September, 1964.
W alter P. Ge w in ,

Circuit Judge.
S eybourn H. L ynne ,

District Judge.
H . H . Grooms,

District Judge.



APPENDIX B
Article I, Sec. 8, cl. 3 of the Constitution provides:

The Congress shall have power * * * To 
regulate commerce * * * among the several 
states.

Section 201 of Title I I  of the Civil Rights Act of 
1964, P.L. 88-352, 78 Stat. 241, 243, provides:

(a) All persons shall be entitled to the full 
and equal enjoyment of the goods, services, 
facilities, privileges, advantages, and accommo­
dations of any place of public accommodation, 
as defined in this section, without discrimina­
tion or segregation on the ground of race, color, 
religion, or national origin.

(b) Each of the following establishments 
which serves the public is a place of public ac­
commodation within the meaning of this title 
if its operations affect commerce, or if discrim­
ination or segregation by it is supported by 
State action:

(1) any inn, hotel, motel, or other estab­
lishment which provides lodging to transi­
ent guests, other than an establishment lo­
cated within a building which contains not 
more than five rooms for rent or hire and 
which is actually occupied by the proprie­
tor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, 
lunch counter, soda fountain, or other fa­
cility principally engaged in selling food 
for consumption on the premises, including, 
but not limited to, any such facility located 
on the premises of any retail establishment; 
or any gasoline station -

(27)



28

(3) any motion picture house, theater, 
concert hall, sports arena, stadium or other 
place of exhibition or entertainment; and

(4) any establishment (A) (i) which is 
physically located within the premises of 
any establishment otherwise covered by 
this subsection, or (ii) within the premises 
of which is physically located any such 
covered establishment, and (B) which 
holds itself out as serving patrons of such 
covered establishment.

r(c) The operations of an establishment affect 
commerce within the meaning of this title if 
(1) it is one of the establishments described 
in paragraph (1) of subsection (b) ; (2) in the 
case of an establishment described in para­
graph (2) of subsection (b), it serves or offers 
to serve interstate travelers or a substantial 
portion of the food which it serves, or gasoline 
or other products which it sells, has moved in 
commerce; (3) in the case of an establishment 
described in paragraph (3) of subsection (b), 
it customarily presents films, performances, 
athletic teams, exhibitions, or other sources of 
entertainment which move in commerce; and 
(4) in the case of an establishment described 
in paragraph (4) of subsection (b), it is physi­
cally located within the premises of, or there 
is physically located within its premises, an 
establishment the operations of which affect 
commerce within the meaning of this subsec­
tion. For purposes of this section, “ com­
merce” means travel, trade, traffic, commerce, 
transportation, or communication among the 
several States, or between the District of 
Columbia and any State, or between any for­
eign country or any territory or possession and 
any State or the District of Columbia, or be­
tween points in the same State but through any 
other State or the District of Columbia or a 
foreign country.

U .S . GOVERNMENT PRINTING OFFSCEi 1S&4