Avent v. North Carolina Records and Briefs

    R E C O R D S
AND

B R I E F S















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.

T. W . BRUTON,
Attorney^ Genera I of North Carolina

RALPH MOODY,
Assistant Attorney General 

Justice Building 
Raleigh, North Carolina 

Counsel for the State of 
North Carolina, Respondent.





INDEX

Jurisdiction----------------------...------------------------------------------— 2
Questions Presented----------------------------------     — 2
Constitutional Provisions and Statutes Involved ------------------  2
Respondent’s Statement of the C ase------------------- ----------------- 2
Argument ---------------------------------------------------- i ---------------  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, ail’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. Aveni, 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. 9 7 ............................................  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 .............................. ................................................ ......... !2
State Statutes:
Sec. 14 - 134 of General Statutes of North Carolina ................. 2,9,11
Sec. 14 • 12G of General Statutes of North Carolina....................... 9

LAW REVIEW  ARTICLES
Race Relations Law R eporter............................................................6,7
47 Virginia Law Review 1 .............................. - ............................. 7
46 Virginia Law Review 123 ............................................................ 7
15 U. of Miami Law Review 123 ................................... - ...............  7
I960 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, CALL1S 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.

JURISDICTION

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)



■



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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.”)

ARGUMENT

I

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. (VALLE 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 concept 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. 240; 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

cemed 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 
KOVACS v. COOPER, 33G 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, GO 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



"



I n  t h e

Supreme (Hmurt nf thp Mniteii States
October Term, 1960

No. 943

J ohn T homas A vent, Callis N apolis B rown, S hirley Mae 
B rown, F rank McGill Coleman, J oan H arris N elson, 
D onovan P hillips, and L acy Carrole S treeter,

Petitioners,
-v.—

S tate of N orth Carolina.

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

T hurgood Marshall 
J ack Greenberg 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

L. C. B erry, J r.
W illiam A. Marsh, J r.
F. B. M cK 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. R eich 
S pottswood 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 Granting the W rit .....................................  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 ta tes.....................................................................  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 C ourt.....................................  20

III—The decision below conflicts with decisions of 
this Court securing the Fourteenth Amend­
ment right to freedom of expression ..............  26

Conclusio n .........................................................................  30

A ppendix la



11

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 U. 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 v. Wilmington Parking Authority, 29 U. S. L. 

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

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

District of Columbia v. John R. Thompson Co., 346
U. 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. 4 5 .................................  18

•

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

PAGE



I ll

Martin v. Struthers, 319 U. S. 141.................................  29
Maryland, v. Williams, 44 Lab. Rel. Ref. Alan. 2357

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

PAGE

Pennsylvania Coal Co. v. Mahon, 260 U. 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

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

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

S tatutes

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

I l l ,  §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

PAGE



V

PAGE

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

Wyoming Code, §6-226 ......................................................  25

28 U. S. C. §1257(3) ........................................................ 2

Other A uthorities

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

(tart nf thr Muitrfc ^tatrs
October Term, 1960 

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

J ohn T homas A vent, Callis N apolis B rown, S hirley Mae 
B rown, F rank McGill Coleman, J oan H arris N elson, 
D onovan P hillips, and L acy Carrole S treeter,

— v .—
Petitioners,

S tate of N orth Carolina.

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

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.

Questions Presented

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 Constitutional 
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 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 Kress’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 (B. 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 (B. 24), or at a stand-up counter upstairs 
(E. 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 Guests and Employees Only’ ” 
(E. 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 
(E. 21). Upon refusal the officer arrested them for tres­
passing (E. 21, 4). Petitioners were 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. H. 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.” (E. 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 “W F” (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 were 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).

i

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).

How the Federal Questions 
Were Raised and Decided

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 (K. 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 a rre st; 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 Rights 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 (R. 
30).

Similar motions filed on behalf of the white petitioners 
alleged that they had been denied these rights because of 
association with Negroes (R. 30-33). These motions were 
denied and exception was taken thereto (R. 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 (E. 3-1-35).

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 (E. 51).

Assignments of E rror were filed against the action of 
the Court in overruling the Motion to Quash (Assignments 
1 and 2, E. 70), in overruling the motion for judgment as 
of nonsuit (Assignments 4, 5, 6 and 7, E. 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, E. 71).



10

The Supreme Court of North Carolina disposed ad­
versely of these constitutional claims. I t 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 th a t:
“In the absence of a statute forbidding discrimina­

tion based on race or color in restaurants, th6 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 th a t:
“ ‘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 below 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.)

Reasons for Granting the Writ

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.
The State of North Carolina has enforced racial dis­

crimination contrary to the equal protection and due 
process clauses of the Fourteenth Amendment to the 
Constitution of the United 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 
U. S. 1.* Equally clear, the Amendment reaches conduct of
the police. Cf. Monroe v. P ape,----- U. S. -------, 5 L. ed.
2d 492 (1961); Screws v. United States, 325 U. 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 U. S. 
60; Brown v. Board of Education, 347 U. 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 U. S. 1.

For the state to infect the administration of its criminal 
laws by using them to support lunch counter segregation 2

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.” ( I d .  at 18.)

In addition to the many cases cited in S h e l le y ,  s u p r a ,  at 14-18, 
see also: B a r r o w s  v. J a c k s o n ,  346 U. S. 249; N . A . A . C . P . v. A l a b a m a ,  
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 
Rights 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. It 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).



1 6

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 wTere 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.’ Kotcli 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 was “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



1 8

held to be at stake. For as Mr. Justice Holmes wrote, dis­
senting in Lochner v. New York, 198 U. S. 45, 76, “ [g e n ­
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 ea t; those standing to eat in the same 
store were served without any racial discrimination (R. 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 Real Property 493 et seq. (1956).

4 See for example, W e s t e r n  T u r f  Asso. v. G re e n b e r g ,  204 U. S. 
359; cf. B o b -L o  E x c u r s io n  Co. v. M ic h ig a n ,  333 U. S. 28; R a i l w a y  
M a il  A s s ’n  v. C o rs i ,  326 U. S. 88; D i s t r i c t  o f  C o l u m b ia  v. J o h n  R .  
T h o m p s o n  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 case 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.
The criminal statute applied to convict petitioners 

gave no fair and effective warning that their actions 
were prohibited; petitioners’ conduct violated no 
standard required by the plain language of the law; 
thereby their conviction offends the due process clause 
of the Fourteenth Amendment and conflicts with prin­
ciples 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),0 92 years after en­
actment of the law.5 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 C l y b u m  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” m 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 C l y b u m  case are summarized m 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. Weitzel, 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 akin 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 Lametta 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 U. 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” * VII,

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. Suppi Vol. I ll ,  §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, Vol. 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.



2 6

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.
The decision below conflicts with decisions of this 

Court securing the Fourteenth Amendment right to 
freedom of 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 Kelations 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 .  R .  B .  v. A m e r i c a n  P e a r l  B u t t o n  Co., 149 F. 2d 258 
(8th Cir., 1945) ; U n i te d  S t e e lw o r k e r s  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 .  R .  B .  v. F a n s te e l  M e ta l  C o r p . ,  306 U.S. 240, 252 
(employees seized plant; discharge held valid: “high-handed pro­
ceeding without shadow of legal right”).



2 8

In Martin v. Struthers, 319 U. 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— 
“ [djoor 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 River” 
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 U. S. at 644. Because, among other things, “ [sjubscrip- 
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. Rel. Ref. Man. 
2357, 2361 (1959), has on Fourteenth Amendment and 
Labor Management Relations 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, AVashington 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. But as Justice 
Holmes held in Sclienck 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

Wherefore, for the foregoing reasons, it is respect­
fully submitted that the petition for a writ of certiorari 
should be granted.

Respectfully submitted,

T hurgood Marshall,
J ack Greenberg 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

L. C. B erry, 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. R eich 
S pottswood W. R obinson, III

Of Counsel



Opinion by Mr. Justice Mallard

SUPREME COURT OF NORTH CAROLINA 

Fall Term 1960 

No. 654—Durham

S tate

— v.—
J ohn T homas A vent

S tate

— v.—
L acy Carrole S treeter

S tate 

— y .—

F rank McGill Coleman 

S tate

S hirley Mae B rown

S tate

— v.—
D onovan P hillips

S tate

— v.—
Callis N apolis B rown

S tate

—v.—
J oan H arris N elson



2a

Appeal by defendants from Mallard, J 30 June 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-np 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. I t 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. I t 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 wTas 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 . B ruton, 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 tAvo 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. II. 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. I t 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 S. 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. 2 d ------ ; 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. Jur., 
Civil Eights, §21; Powell v. Utz, 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 Boyntonv. 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 Eestaurant 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 S. 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. Porcelli 
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 Porcelli 
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 (W ash.); De La Ysla v. Publix Theatres 
Corporation, 26 P. 2d 818 (U tah); Brown v. Meyer Sani­
tary Milk Co., 96 P. 2d 651 (K an.); 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. R. 417, 
and Annotation in 33 A. L. R. 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 cases cited in defendants’ brief are ap­
plicable to the situation which obtains in the instant cases. 
For instance, Cooper v. Aaron, 358 U. S. 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, R. 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,”
R. 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. I t 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? S. v. Baker, 
231N. 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 case, 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. G. 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. S. 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 U. 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.
Hardyman, 341 U. S. 651, 95 L. Ed. 1253; District of Colum­
bia v. Thompson Co., 346 U. 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 
Gr. 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 Gr. 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 of 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 car. 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, Schenck 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. I t 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 S. 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 G08. 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 withont 
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 G. 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. S. 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
rish, 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; S. 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
S. 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. S. 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; S. 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.

A T rue Copy :

No Error.

[Seal]

/ s /  A drian J. N ewton 
Clerk of Supreme Court of North Carolina.



22a

I n the S upreme Court of the S tate of 
N orth Carolina

S tate

J ohn T homas A vent, L acy Carrole S treeter, F rank Mc­
Gill Coleman, S hirley Mae B rown, D onovan P h il­
lips, Callis N apolis B rown and J oan H arris N elson

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

A drian J. N ewton 
Clerk of the Supreme Court of 

the State of North Carolina















I n  the

g>npxmt (Emirt nf tip
October Term, 1962 

No. 11

J ohn T homas A vent, et al.,
Petitioners,

— y .—

N orth Carolina.

ON WRIT OE CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF NORTH CAROLINA

BRIEF FOR PETITIONERS

-

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

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

Durham, North Carolina

Derrick B ell 
Leroy Clark 
W illiam T. Coleman, J r. 
Michael Meltsner 
W illiam R. Ming, J r. 
Louis H. P ollak 
J oseph L. R auh 
Herbert 0. R eid 

Of Counsel

Attorneys for Petitioners

;
J





INDEX

Opinion Below...................................................................  1

Jurisdiction.........................................................................  1

Constitutional and Statutory Provisions Involved....... 2

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

Statement ...........................................................................  4

Summary of A rgum ent....................................................  8

A rgument

I. North Carolina in Enforcing What Its Highest 
Court Has Denominated a “Clear Legal Eight 
of Racial Discrimination” Has Denied to Peti­
tioners the Equal Protection of the Laws Se­
cured by the Fourteenth Amendment ................. 12

A. Arrest, Conviction, and Sentence to Prison
for Trespass for Plaving Violated the S. H. 
Kress Co.’s Requirement of Racial Segrega­
tion at Its Public Lunch Counter Deny Peti­
tioners the Equal Protection of the Laws 
Secured by the Fourteenth Amendment....... 12

B. Certainly, at Least, the State May Not by
Its Police and Courts Enforce Such Segre­
gation When It Stems Prom a Community 
Custom of Segregation Which Has Been 
Generated by State L aw ...................................  17

PAGE



11

C. A Fortiori, the State May Not Arrest and
Convict Petitioners for Having Violated a 
Segregation Rule Which Stems From a State 
Generated, Community Custom of Segrega­
tion in Premises in Which the State Is 
Deeply Involved Through Its Licensing and 
Regulatory Pow ers......................................... 24

D. No Essential Property of S. H. Kress and
Co. Is Here at Issue; the Right to Make 
Racial Distinctions at a Single Counter in 
a Store Open to the Public Does Not Out­
weigh the High Purposes of the Fourteenth 
Amendment......................................................  27

E. In Any Event the Convictions Below Must
Fall When, in Addition to the Foregoing, 
North Carolina Has Failed to Protect Negro 
Citizens in the Right to Equal Access to 
Public Accommodations ...............................  35

II. The Criminal Statute Applied to Convict Peti­
tioners Gave No Fair and Effective Warning 
That Their Actions Were Prohibited: Peti­
tioners’ Conduct Violated No Standard Re­
quired by the Plain Language of the Law; 
Thereby Their Conviction Offends the Due 
Process Clause of the Fourteenth Amendment 
and Conflicts With Principles Announced by

PAGE

This Court.............................................................. 39

III. The Decision Below Conflicts With Decisions of 
This Court Securing the Fourteenth Amend­
ment Right to Freedom of Expression..............  47

Conclusion 51



I ll

T able of Cases

page

Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ..... 30

Bailey v. Patterson, 369 U. S. 3 1 ...................................  13
Baker v. Carr, 369 U. S. 186, 285-86 .............................  34
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....... 13
Barrows v. Jackson, 346 U. S. 249 .................................  30
Betts v. Easley, 161 Kan. 459 ......................................... 26
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 2 8 ..........  27
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) .....................................................................13, 25
Breard v. Alexandria, 341 U. S. 622 ............................. 16,48
Brown v. Board of Education, 347 U. S. 483 ..............  12
Buchanan v. Warley, 245 U. S. 60 .................................  13
Burks v. Poppy Constr. Co., 30 U. S. L. W. 2467 (Cal.

1962) ..............................................................................
Burstyn v. Wilson, 343 U. S. 495 ..................................... 49
Burton v. Wilmington Parking Authority, 365 U. S.

715 ..........................................................12,13,14,27,35,38

Cantwell v. Connecticut, 310 U. S. 296 .......................... 46
In Re Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680

(Surr. Ct. 1931) ..........................................................  29
Catlette v. United States, 132 F. 2d 902 (4th Cir.

1943) ....................................................................... 35
Chaplinsky v. New Hampshire, 315 U. S. 568 .............. 41-42
Child Labor Tax Case, 259 U. S. 20 .............................  17
Civil Rights Cases, 109 U. S. 3 .............. 14,18, 35, 36, 37, 38
Cooper v. Aaron, 358 U. S. 1 ........................................... 12
Corporation Comms. v. Transportation Committee, 198

N. C. 317, 151 S. E. 648 (1930) ..................................  20
Cruger v. Phelps, 21 Misc. 252, 47 N. Y. S. 61 (Sup. Ct. 

1897) .......................................................................  29



IV

PAGE

D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63, 43 A. 2d
169 (Ch. 1945) ...............................................................  30

Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2 A.
2d 285 (Ch. 1938) ........................................................ 29

Derrington v. Plummer, 240 P. 2d 922 (5th Cir. 1956) 
cert. den. sub nom. Casey v. Plummer, 353 U. S.
924 ..................................................................................  13

District of Columbia v. John R. Thompson Co., 346
IT. S. 100 ....................................................................... 27

Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 
1934) ..............................................................................  29

Engel v. Vitale, 370 U. S. 421......................................... 24
Evers v. Dwyer, 358 U. S. 202 ...................................... 13

Fay v. New York, 332 IT. S. 261.....................................  15
In Re Forte’s Will, 149 Misc. 327, 267 N. Y. S. 603

(Surr. Ct. 1933) ............................................................ 29
Freeman v. Retail Clerks Union, Wash. Sup. Ct., 45 

Lab. Rel. Ref. Man. 2334 (1959) ...................................  49

Garner v. Louisiana, 368 U. S. 157 ........................18, 24, 25
Gayle v. Browder, 352 U. S. 903 ................................. 13, 20
Gilbert v. Minnesota, 254 U. S. 325 .............................  17

In Re Haight’s Will, 51 App. Div. 310, 64 N. Y. S. 1029
(2d Dept. 1900) .............................................................  29

Harmon v. Tyler, 273 U. S. 668 .....................................  13
Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422 (1890) .... 29
Henneford v. Silas Mason Co., 300 U. S. 577 ..............  28
Henry v. Greenville Airport Comm’n, 284 F. 2d 631

(4th Cir. 1960) ............................................................ 13
Herndon v. Lowry, 301 U. S. 242 ............................. 42,43, 44
Hirabayashi v. United States, 320 U. S. 8 1 ..................  14



V

Holmes v. Atlanta, 350 U. S. 879 .....................................  12
Holmes v. Connecticut Trust & Safe Deposit Co., 92

Conn. 507, 103 Atl. 640 (1918) ...................................  29
Hudson County Water Co. v. McCarter, 209 U. S.

345 ..................................................................................  34

Klor’s Inc. v. Broadway-Hale Stores, 359 U. S. 207
(1959) ............................................................................. 31

Kovacs v. Cooper, 336 U. S. 77 .....................................  16
Kunz v. New York, 340 U. S. 290 .................................  46

Lane v. Cotton, 1 Ld. Raym. 646, 1 Salk. 18, 12 Mod.
472, 485 ......................................................................... 32

Lanzetta v. New Jersey, 306 U. S. 451 .................. 41, 42, 44
Levitt & Sons, Inc. v. Division Against Discrimination,

31 N. J. 514, 158 A. 2d 177 (1960) ............................ 31
Lorain Journal Co. v. United States, 342 U. S. 143

(1951) ............................................................................. 31
Lovell v. Griffin, 303 U. S. 444 ......................................... 44
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) .... 35

Maddox v. Maddox, Admr., 52 Va. 804 (1954) ............  29
Mapp v. Ohio, 367 U. S. 643 .............................................. 17
Marsh v. Alabama, 326 U. S. 501 ......................... 28, 34, 47
Martin v. Struthers, 319 U. S. 141 ......................... 16, 48, 49
Massachusetts Comm’n Against Discrimination v. Col-

angelo, 30 U. S. L. W. 2608 (Mass. 1962) ..................  31
Mayor, etc. of Baltimore v. Dawson, 350 U. S. 877 ..... 12
McBoyle v. United States, 283 U. S. 25 ..................... 43,45
Miller v. Schoene, 276 U. S. 272 (1928) .................... 32
Monroe v. Pape, 365 U. S. 167......................................... 13
Morgan v. Virginia, 328 U. S. 373 .................................  20
Muir v. Louisville Park Theatrical Assn., 347 U. S. 971, 

vacating and remanding, 202 F. 2d 275 ......................  13

PAGE



VI

PAGE

NAACP v. Alabama, 357 U. S. 449 ..........................24, 42, 49
Nashville C. & St. L. Ry. v. Browning, 310 U. S. 362 .... 18 
New Orleans City Park Improvement Assn. v. Detiege,

358 U. S. 5 4 ...................................................................  12
N. Y. State Comm’n Against Discrimination v. Pelham 

Hall Apts. Inc., 10 Misc. 2d 334, 170 N. Y. S. 2d 750
(Sup. Ct. 1958)...............................................................  31

Nixon v. Condon, 286 U. S. 73 ..................................... 26
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ...............................................................  48
N.L.R.B. v. Babcock & Wilcox Co., 351 U. S. 105 (1955) 33
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240 .........  48

People v. Barisi, 193 Misc. 934 (1948) .......................... 49
Pierce v. United States, 314 U. S. 306 .......................... 42
Poe v. Ullman, 367 U. S. 497 ......................................... 18
Pollock v. Williams, 322 U. S. 4 ..................................... 23
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 30
Public Utilities Commission v. Poliak, 343 U. S.

451.................................................................................. 17, 26

Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 32

Railway Mail Ass’n v. Corsi, 326 U. S. 88 ......................  27
In Re Ranney’s Estate, 161 Misc. 626, 292 N. Y. S. 476

(Surr. Ct. 1936) ............................................................ 29
Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 

(1945) ................................................................. 28,33,47-48

Saia v. New York, 334 U. S. 558 .....................................  46
St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.

269 (1919) .......................................................................  33
Schenck v. United States, 249 U. S. 4 7 .........................  50
Schmidinger v. Chicago, 226 U. S. 578............................... 33



Vll

Screws v. United States, 325 U. S. 9 1 .............................  13
Semler v. Oregon State Board of Dental Examiners,

294 U. S. 608 (1935) ....................................................  33
Shelley v. Kraemer, 334 U. S. 1 .............. 12,14, 28, 30, 33, 35
Smith v. California, 361 U. S. 147.....................................  46
State Athletic Comm’n v. Dorsey, 359 U. S. 533 .............. 13
State Comm’n Against Discrimination v. Pelham Hall 

Apartments, 10 Misc. 2d 334,170 N. Y. S. 2d 750 (Sup.
Ct. 1958) ......................................................................... 31

State of Maryland v. Williams, 44 Lab. Rel. Ref. Man.
2357 (1959) .....................................................................  49

State v. Clyburn, 247 N. C. 455, 101 S. E. 2d 295
(1958)............................................................................ 21,40

State v. Johnson, 229 N. C. 701, 51 S. E. 2d 186 (1949) 21
Staub v. Baxley, 355 U. S. 313.......................................... 42
Steele v. Louisville and Nashville R.R. Co., 323 U. S.

192....................................................................................  26
Stromberg v. Calif., 283 U. S. 359 ................................. 44, 49

PAGE

Taylor v. Louisiana, 370 U. S. 154.................................  13
Terry v. Adams, 345 U. S. 461......................................... 35
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917) 33
Thompson v. City of Louisville, 362 U. S. 199..............  41
Thornhill v. Alabama, 310 U. S. 8 8 .................................  49
Truax v. Corrigan, 257 U. S. 312.....................................  35
Turner v. Memphis, 369 U. S. 350.....................................  13

United States v. Addyston Pipe & Steel Co., 85 Fed. 271
(6th Cir. 1898) aff’d 175 U. S. 211 (1899) ..................  30

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) .... 33
United States v. Cardiff, 344 U. S. 174 ......................42, 43
United States v. Colgate, 250 U. S. 300 (1919) ..............  31
United States v. Hall, 26 Fed. Cas. 79 .......................... 36
United States v. L. Cohen Grocery Co., 255 U. S. 81 ....43, 44



V ll l

U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960) ........... 31
United States v. Weitzel, 246 U. S. 533 ......................43, 44
United States v. Wiltberger, 18 U. S. (5 Wheat.) 76 .... 43 
United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.

Cir., 1956) (Reversed on other grounds), 357 U. S. 357 48

Watchtower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948) ........... 16

Western Turf Assn. v. Greenberg, 204 U. S. 359 ........... 27
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d

661 (1945) ....................................................................... 29
Wolf v. Colorado, 338 U. S. 25 ......................................... 17

F ederal S tatutes

Civil Rights Act of 1866, 14 Stat. 2 7 .............................  16
Civil Rights Act of 1875 ................................................  37
Civil Rights Act of 1875, 18 Stat. 335 .......................... 16
Clayton Act, 15 U. S. C. §12, et seq................................  30
Miller-Tvdings Act amendment of §1 of the Sherman 

Act, 15 U. S. C. § 1 ........................................................ 30
Robinson-Patman Act, 15 U. S. C. §13 et seq................. 30

Sherman Anti-Trust Act, 15 U. S. C. §1 et seq.............  30

United States Code, Title 28, §1257(3) .......................... 1
United States Code, Title 42, §1981 .............................  15
United States Code, Title 42, §1982 .............................  15

S tate S tatutes

Ark. Code Sec. 71-1803 ....................................................  45
Cal. Civil Code, §51 (Supp. 1961) .................................  31
Cal. Civ. Code, sections 51-52 (Supp. 1961) ..................  31

PAGE



IX

Cal. Health & Safety Code (Sec. 35740) ...................... 31
Code of Ala., Title 14, Sec. 426 .....................................  45
Code of Virginia, 1960 Replacement Volume, Sec. 18.1-

173 ..................................................................................  45
Colo. Rev. Stat. Ann. sections 25—1—1 (1953)..............  31
Colo. Rev. Stat. Ann. sections 69-7-1 (Supp. 1960) ....... 31
Conn. Gen. Stat. Rev. §53-35 (Supp. 1960) ..................  31
Conn. Gen. Stat. Rev. sec. 53-35 (Supp. 1961) ..............  31
Conn. Gen. Stat. Rev. sections 53—35-36 ......................  31
Conn. Stat. Rev. §53-35-35 ................................................  31
Conn. Gen. Stat. (1958 Rev.) sec. 53-103 ......................  45
Constitution of North Carolina, Art. XIV, sec. 8 

(1868) ............................................................................  21
D. C. Code, sec. 22-3102 (Supp. VII, 1956) ................. 45
D. C. Code Ann. sections 47—2901-04 (Supp. 1960) .... 31

Florida Code, sec. 821.01 ................................................  45
Hawaii Rev. Code, sec. 312-1 ......................................... 45

Illinois Code, sec. 38-565 ..................................................  45
Indiana Code, sec. 10-4506 ............................................. 45
Indiana Stat., secs. 10-901, 10-902 (Supp. 1962) ........... 31
Iowa Code Ann. sections 735.1-02 (1950) ......................  31
Kansas Gen. Stat. Ann. sections 21-2424 (1949) ........... 31

Laws of Alaska Ann. 1958 (compiled), Cum. Supp.
Vol. I l l ,  sec. 65-5-112....................................................  45

Mass. Code Ann. c. 266, sec. 120 .................................  45
Mass. G. L. c. 151B, §§1, 4, 6 (Supp. 1961) ..................  31
Mass. G. L. (Ter. Ed.) c. 272, sections 92A, 98 (1956),

c. 151B, sections 1-10................................................... 31
Mich. Stat. Ann. 1954, Vol. 25, Sec. 28.820(1) ............  45
Mich. Stat. Ann. §28-343 (Supp. 1959).............................  31

PAGE



X

Minn. Stat. Ann. section 327.09 (1947) .......................... 31
Minn. Stat. Ann., 1947, Vol. 40, sec. 621.57 ..................  45
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,

c. 428 to become effective 12/31/62 .......................... 31
Mississippi Code, sec. 2411 ............................................  45
Montana Rev. Codes Ann. section 64-211 (Snpp. 1961) 31
Neb. Rev. Stat. sections 20-101, 102 (1943) ..................  31
Nevada Code, sec. 207.200 ..............................................  45
N. H. Rev. Stat. Ann. §§354.1-4, as amended by L. 1961,

c. 219 ........................................................................  31
N. C. Gen. Stat., sec. 14-126............................................  40
N. C. Gen. Stats., sec. 14-134 ................................. 2,4, 39,40
N. C. Gen. Stat. sec. 14-234 ............................................  40
N. C. G. S. 14-181...............................................................  21
N. C. G. S. 51-3 ................................................................  21
N. C. G. S. §55-79 ............................................................  25
North Carolina General Statutes, sec. 55-140 ..............  25
N. C. G. S. 58-267 ...........................................................  21
G. S. 60-94 to 9 7 ...............................................................  20
N. C. G. S. 60-135 to 137 ................................................  20
N. C. G. S. 60-139 ............................................................  21
N. C. G. S. 62-44 ..............................................................  20
N. C. G. S. 62-127.71 ........................................................  20
N. C. G. S. 65-37 ..............................................................  19
N. C. G. S. 72-46 ..............................................................  21
N. C. G. S. 90-212 .............................................................. 20
N. C. G. S. 95-48 ..............................................................  21
N. C. G. S. §105-62 ...........................................................  25
N. C. G. S. §105-82 ...........................................................  25
N. C. G. S. §105-98 ........................................................  25
N. C. G. S. §105-164.4-6 ...................................................  25
N. C. G. S. 105-323 ...........................................................  19
N. C. G. S. 116-109...........................................................  19

PAGE



XI

N. C. G. S. 116-120...........................................................  19
N. C. G. S. 116-124...........................................................  19
N. C. G. S. 116-138 to 142................................................  19
N. C. G. S. 122-3-6...........................................................  19
N. C. G. S. 127-6...............................................................  19
N. C. G. S. 134-79 to 8 4 ....................................................  19
N. C. G. S. 134-84.1 to 84.9 ............................................  19
N. C. G. S. 148-43 ...........................................................  19
N. C. Gen. Laws, Ch. 130 (1957) ..................................... 25
N. D. Cent. Code, section 12-22-30 (Supp. 1961) ..............  31
N. J. Stat. Ann. sections 10:1—2-7, section 18:25—5

(Supp. 1960) .................................................................  31
N. J. Stat. Ann. sec. 18:25-4 (Supp. 1961) ....................  31
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ......... 31
N. Y. Civil Rights Law, section 40-41 (1948), Execu­

tive Law, sections 292(9), 296(2) (Supp. 1962) ....... 31
N. Y. Executive Law, §§290-99 as amended by L. 1961, 

c. 414 ._...........................................................................  31
Ohio Code, sec. 2909.21 ..................................................  45
Ohio Rev. Code, sec. 4112.02(G) (Supp. 1961) ..........  32
Oregon Code, sec. 164.460 ................................................  45
Ore. Rev. Stat. sections 30.670-680, as amended by Sen­

ate Bill 75 of the 1961 Oregon Legislature ..............  32
Ore. Rev. Stat. sec. 659.033 (1959) .................................  31

Pa. Stat. Ann. Tit. 18, section 4654, as amended by 
Act No. 19 of the 1961 Session of Pa. Gen. Assembly 32 

Pa. Stat. Ann. Titl. 43, §§951-63, as amended by Acts 
1961, No. 19 ...................................................................  31

R. I. Gen. Laws Ann. sections 11-24-1 to 11-24-1-6 
(1956) ............................................................................. 32

Vermont Stat. Ann. tit. 13, Sections 1451-52 (1958) .... 32

PAGE



xn

Wash. Rev. Code §49.60.030 (1957) .................................  31
WTash. Rev. Code, Section 49.60.040 (1957) ..................  31
Wash. Rev. Code, Sections 49.60.040, 49.60.215 (1962) 32 
Wis. Stat. Ann. Section 942.04 (1958) as amended

(S u p p . 1962) ................................................................... 32
Wyoming Code, Sec. 6-226 ................................................  45
Wyoming Stat., Sections 6-83.1, 6-83.2 (Supp. 1961) .... 32

City  Ordinances

Burlington Code, Sec. 8-1 ................................................  20

Charlotte City Code, Article I, Sec. 5 ..........................  20
Charlotte City Code, Ch. 7, Sec. 7-9, 7-56........................ 20

Lumberton Code, Sec. 7-19 ............................................  20

Winston-Salem Code, Sec. 6-42....................................... 20

E nglish  S tatutes

Statute of Labourers, 25 Ed. I l l ,  Stat. I (1350) ..........  32
(1464), 4 Ed. IV., c. 7 ........................................................  32
(1433), 11 H. VI, c. 1 2 ....................................................  32
(1357), 31 Ed. I ll, c. 10 ....................................................  32
(1360), 35 Ed. I l l  ............................................................ 32

Oth er  A uthorities

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cornell L. Q.
375 ..................................................................................  38

Adler, Business Jurisprudence, 28 Harv. L. Rev. 135 
(1914) ............................................................................  32

PAGE



X l l l

PAGE

A. L. I., Restatement of the Law of Property, Div. 4, 
Social Restrictions Imposed Upon the Creation of
Property Interests (1944), p. 2121 ...................... 29,30

A. L. I., Restatement of Torts, §867 (1939) ................  17
Ballentine, “Law Dictionary’’ 436 (2d Ed. 1948) ......... 45
Beale, The Law of Innkeepers and Hotels (1906) ....... 32
“Black’s Law Dictionary” (4th Ed. 1951) 625 ..............  45
4 Blackstone’s Commentaries, Ch. 13, sec. 5(6) Wen­

dell’s Ed. 1850 ...............................................................  17
Blodgett, Comparative Economic Systems 24 (1944) .... 28 
Browder, Illegal Conditions and Limitations: Miscel­

laneous Provisions, 1 Okla. L. Rev. 237 (1948) ....... 30
Cong. Globe, 41st Cong. 2d Sess. p. 3611 (1870) ........... 37
Cong. Globe, 42d Congress, 1st Sess., p. 459 ..............  37
Cong. Globe, 42d Congress, 1st Sess., p. 483 (1871) .... 36
Cong. Globe, 42d Cong., 2d Sess., 383 .............................  17
Appendix to the Cong. Globe, 42d Congress, 1st Sess.

p. 8 5 ................................................................................  37
Cong. Rec., 43d Cong., 1st Sess. 412 (1874) ..................  37
County of Durham Sanitary Code................................. 25

Equal Protection of the Laws Concerning Medical 
Care in North Carolina, Subcommittee on Medical 
Care of the North Carolina Advisory Committee to 
the United States Commission on Civil Rights (un­
dated) .......................................................................... 19, 20

Gray, Restraints on the Alienation of Property, 2d ed. 
1895, §259 .......................................................................  30

Gray, The Rule Against Perpetuities, §201, 4th ed.,
1942 ................................................................................  30

Hale, Force and the State: A Comparison of “Politi­
cal” and “Economic” Compulsion, 35 Colum. L. Rev.
149 (1935) .....................................................................  38



XIV

PAGE

Konvitz & Leskes, A Century of Civil Rights, 150 
(1961) .......................................................................... 27,38

Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 
(1938) ............................................................................  30

Mund, “The Right to Buy—And Its Denial to Small 
Business,” Senate Document #32, 85th Cong. 1st 
Sess., Select Committee on Small Business (1957) .. 32

North Carolina Advisory Committee Report 1 8 .......... 21
North Carolina Advisory Committee to the United 

States Commission on Civil Rights, Statutes and 
Ordinances Requiring Segregation by Race, 23 
(March 9, 1962) ........................................................... 18, 21

Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 
(1959)..............................................................................  38

6 Powell, Real Property, 11851, Restatement of Prop­
erty, §424 (1944) ...........................................................  29

Rankin, The Parke, Davis Case, 1961 Antitrust Law 
Symposium, New York State Bar Association Sec­
tion on Antitrust Law 63 (1961) ...............................  31

State Board of Health Laws, Rules and Regulations .. 25
United States Commission on Civil Rights, “The Fifty 

States Report” 477 (1961) .....................L.................  19

Woodward, The Strange Career of Jim Crow 47 
(1955) ........................................................1................. 22,23



In the

jyaprm? (Hour! of iljp States
October Term, 1962

No. 11

J ohn T homas A vent, et a l.,
Petitioners,

— v.—

N orth Carolina.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF NORTH CAROLINA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of North Carolina 
(R. 73) is reported at 253 N. C. 580, 118 S. E. 2d 47 (1961).

Jurisdiction

The judgment of the Supreme Court of North Carolina 
was entered January 20, 1961 (R. 90). On April 4, 1961, 
time for filing a petition for writ of certiorari was extended 
by the Chief Justice to and including May 4, 1961 (R. 91). 
The petition was filed on that date. June 25, 1962, the peti­
tion for writ of certiorari was granted (R. 92). Jurisdiction 
of this Court is invoked pursuant to Title 28 United States 
Code Section 1257(3), petitioners having asserted below



2

and claiming here, denial of rights, privileges, and immuni­
ties secured by the Fourteenth Amendment to the Consti­
tution of the United States.

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 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.

Questions Presented

Petitioners have been arrested, convicted, and sentenced 
to prison for refusal to obey an order to leave the lunch 
counter in a store open to the public, including Negroes. 
This order was given to enforce a custom of the community, 
generated by a massive body of state segregation law. The 
premises are extensively licensed and regulated by the 
State of North Carolina and the City of Durham. North 
Carolina has failed to accord Negroes the right of equal 
access to public accommodations.

I.
A. May North Carolina, compatibly with the Fourteenth 

Amendment, make petitioners the target of a prosecution 
under its trespass laws when the articulated rationale of



3

the prosecution is, according to North Carolina’s highest 
court, to enforce “the clear legal right of racial discrimina­
tion” of the S. H. Kress Corporation?

B. Are not these criminal trespass prosecutions, in any 
event, incompatible with the Fourteenth Amendment be­
cause they constitute purposeful state enforcement of a 
custom of racial discrimination—a custom which is itself 
the carefully nurtured fruit of decades of segregation re­
quired by state law?

C. Is not the degree of supervision and control which 
the State of North Carolina and the City of Durham ex­
ercise over the S. Ii. Kress lunch counter business so ex­
tensive a form of state involvement that, given the circum­
stances of A and B, supra, North Carolina has failed in 
its obligation to afford equal protection of the laws?

D. In addition to considerations set forth above, is not 
the property right which S. II. Kress and Co. has asserted 
—the right to discriminate racially in a single portion of a 
store open to the general public—so inconsequential to the 
main core of its proprietary interest, that the State may 
not compatibly with the Fourteenth Amendment, enforce 
that right by its criminal laws?

E. In view of the fact that North Carolina denies pro­
tection to Negroes against racial discrimination in public 
accommodations, do not the circumstances set forth above 
establish a denial of equal protection of the laws?

II.

The trespass statute under which petitioners were con­
victed forbids only entry without license. Petitioners were 
invited to do business in the store and were ordered to



4

leave only because they sought nonsegregated service at 
the lunch counter, the only racially segregated counter in 
the store. The North Carolina Supreme Court has for the 
first time unambiguously held that the statute under which 
petitioners were convicted makes criminal refusal to leave 
after an invitation to enter. Does not this conviction, there­
fore, violate the due process clause of the Fourteenth 
Amendment in that the statute upon which it rests gave 
petitioners no fair and effective warning that their actions 
were prohibited ?

III.

Is not North Carolina denying petitioners freedom of 
speech secured by the Fourteenth Amendment by using 
its criminal trespass laws as a device to stop petitioners 
from urging S. H. Kress and Company to abandon its 
discrimination practices ?

Statement

Petitioners, five Negro students from North Carolina 
College and two white Duke University students, were 
arrested for a “sit-in” demonstration at the S. H. Kress 
Department store lunch counter in Durham, North Carolina 
(K. 20-21). They were charged with trespass under North 
Carolina General Statutes, Chapter 14, Section 134, which 
prohibits going or entering upon land after being forbidden 
to do so (E. 1-10).

On May 6, 1960, petitioners, some of whom in the past 
had been regular customers, bought small stationery items 
at counters on the first floor of the Kress Department Store 
(R. 35, 39, 41-43, 46, 47, 48). Negroes and whites were 
served without discrimination in all fifty departments ex-



5

eept at the lunch counter portion where patrons sit (R. 22- 
23). There Negroes were barred, although a “stand-up” 
section serviced whites and Negroes together (R. 22-23). 
After making their purchases, petitioners proceeded to the 
basement through the normal passageway bordered by an 
iron railing, and took seats at the lunch counter (R. 37, 40, 
42, 44, 46, 47, 48). No signs at any entranceway or counter 
barred or limited Negro patronage (R. 22-23). A sign in 
the basement luncheonette limited it to “Invited Guests 
and Employees Only” (R. 23). No further writing eluci­
dated its meaning; but the manager testified that while 
invitations were not sent out, white persons automatically 
were considered guests, but Negroes and whites accom­
panied by them were not (R. 22).

The racial distinction was based solely on the custom 
of the community: The manager testified, “It is the policy 
of our store to wait on customers dependent upon the 
custom of the community . . .  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 Guests and 
Employees Only’” (R. 23). He further stated that if 
Negroes wanted service, they might obtain it at the back 
of the store or at a stand-up counter upstairs (R. 22).

As petitioners took seats, the manager approached and 
asked them to leave (R. 21). One petitioner, Joan Nelson 
Trumpower, a white student, had already received and 
paid for an order of food (R. 42). When she attempted to 
share it with Negroes on either side of her, the manager 
asked her to leave (R. 23, 42). He never identified himself, 
however, as fhe manager or as a person with authority 
to ask them to leave (R. 42).

While petitioners remained seated awaiting service, the 
manager called the police to enforce his demand (R. 21).



6

An officer promptly arrived and asked them to leave (R. 
21). Upon refusal the officer arrested them for trespass 
(R. 21). At all times petitioners were orderly and, when 
arrested, offered no resistance (R. 22, 26).

Petitioners were members of an informal student group 
with a program of protesting segregation (R. 36, 41, 43, 
44). They had organized and led picketing at the store to 
protest its policy of fully accepting the business of Negro 
patrons while refusing them service at the sit-down lunch 
counter (R. 36, 40-41, 44-45). The picketing occurred at 
various times from February 1960 until the arrest on 
May 6,1960 (R. 44). Some of the petitioners had requested 
and had been denied service on previous occasions at the 
lunch counter, and on the day of the arrests, they con­
tinued to request service in hope that their protests would 
be successful (R. 37, 40-41, 49). On the previous day peti­
tioners attended a meeting to discuss the sit-in demonstra­
tions, where it was agreed that they would trade in the 
store as customers as in the past, and then seek service 
on the same equal basis at the lunch counter (R. 49).

They were indicted for trespass in the Superior Court 
of Durham County, the indictments stating that each peti­
tioner

“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. H. Kress



7

and Co., to leave that part to 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.”

Each indictment identified each petitioner as “CM” (colored 
male), “WM” (white male), “CF” (colored female), or 
“WF” (white female) (R. 2, 3, 5, 6, 7, 9, 10). Petitioners 
made motions to quash the indictments raising defenses 
under the Fourteenth Amendment to the United States 
Constitution. These were denied (R. 11-15). To the in­
dictments they entered pleas of not guilty (R. 15).

Various federal constitutional defenses were made 
throughout and at the close of trial, but were overruled 
(R. 12, 15, 26-34, 50, 66-67). Petitioners were found guilty 
(R. 15-16). Petitioners Coleman, Phillips, and Callis Napo- 
lis Brown were sentenced to 30 days imprisonment in the 
common jail of Durham County to work under the super­
vision of the State Prison Department (R. 17-18). Peti­
tioner Streeter was sentenced similarly to 20 days (R. 19). 
Petitioner Avent was sentenced to 15 days in the Durham 
County jail (R. 16). Prayer for judgment was continued 
in the cases of Shirley Mae Brown and Joan Harris Nelson 
Trumpower (R. 16, 17).

Error was assigned again raising and preserving federal 
constitutional defenses (R. 67-69), and the case was heard 
by the Supreme Court of North Carolina, which affirmed 
the convictions on January 20, 1961 (Clerk’s Certificate 
following Court’s Opinion).



8

Summary of Argument

I.

The court below held that it was enforcing “the clear legal 
right of racial discrimination of the owner.” But, while in 
some circumstances there may be a personal privilege to 
make racial distinctions, its limit is reached when the 
person exercising it turns to the state for assistance. Judi­
cial and police action are no less forbidden State action 
when invoked to enforce discrimination initiated by an indi­
vidual. Any suggestion that private rights, in the sense 
that they invoke considerations of privacy, are involved is 
farfetched. Kress’s has been open to the public in general. 
The management did not assert the corporation’s own pref­
erence for a segregation policy, but rather the custom of 
the community. While considerations of privacy may be 
meaningful in determining the reach of some constitutional 
liberties, in this case the right to freedom from State im­
posed racial discrimination is not in competition with any 
interest the State might have in protecting privacy.

At the very least, however, the State may not enforce 
racial discrimination which expresses deep-rooted public 
policy. The record here conclusively shows that this is what 
happened in this case. Such customs are a form of State 
action. But beyond this the segregation customs in this 
case were generated by a host of State segregation laws. 
The North Carolina Advisory Committee to the United 
States Commission on Civil Rights has concluded that, “so 
long as these compulsory statutes are on the books, some 
private citizens are more than likely to take it upon them­
selves to try to enforce segregation.” Scholarship estab­
lishes the crucial role which government, politics, and law 
have played in creating segregation customs.



9

But the State-enforced, State-created community custom 
of segregation in this case is even more invidious because 
it has taken place in an establishment in which the State 
has been deeply involved by requiring extensive licensing 
and regulation. State involvement in such an enterprise 
precludes State enforcement of segregation therein by 
means of arrests and prosecutions for trespass.

The holding below that the State merely was in a neutral 
fashion enforcing an inalienable, sacred, property right is 
clearly incorrect. States can, and have, constitutionally 
forbidden property owners to discriminate on the basis of 
race in public accommodations. North Carolina has not 
inhibited itself from requiring racial segregation on private 
property. The more an owner for his advantage opens his 
property for use by the public in general, the more do his 
rights become circumscribed by the constitutional and stat­
utory rights of those who use it.

Property is a bundle of rights and privileges granted by 
the State. That portion of the rights which constitute 
Kress’s property, which Kress asserts here, and which the 
State has enforced is to control the conduct and association 
of others. This type of property right historically has never 
been unrestrained throughout the whole range of efforts 
to assert it. Restraints on that power are but a manifesta­
tion of the fact that laAV regularly limits or shapes property 
rights where they may have harmful public consequences. 
Other characteristics of the asserted right to racially dis­
criminate in this case are that no claim of privacy has been 
intruded upon; that petitioners sought only to use the prem­
ises for their intended function; that segregation was re­
quired only in a single part of an establishment open to the 
general public, to which petitioners were admitted and in 
which they were invited to trade freely except at the lunch 
counter in question. This separable sliver in the entire



10

complex of powers and privileges which constitutes Kress’s 
property is hardly entitled to legal protection when it col­
lides with the Equal Protection Clause of the Fourteenth 
Amendment, whose purpose was an end of discrimination 
against the Negro.

Moreover, the Civil Rights Cases assumed that the State 
law provided “a right to enjoy equal accommodations and 
privileges . . .  one of the essential rights of the citizen which 
no state can interfere with.” The failure to provide such 
rights can deny the equal protection of the laws. One mem­
ber of the Court which decided the Civil Rights Cases pre­
viously had written that denial included omission to pro­
tect as well as the omission to pass laws for protection. 
Legislators concerned with the scope of the Fourteenth 
Amendment expressed similar views. The Civil Rights 
Cases were decided on the assumption that the States in 
question protected those rights. It is doubtful that the 
result would have been the same if then, as today in North 
Carolina, the States actively interfered with the right of 
equal access to public facilities. No State may abdicate its 
responsibilities by ignoring them; and where a State by its 
inaction has made itself a party to the refusal of service and 
has placed its power and prestige behind discrimination, 
convictions such as those obtained in this case must fall.

II.

The statute applied to convict petitioners was unreason­
ably vague and thereby offends the due process clause of 
the Fourteenth Amendment in that although the statute, 
by terms, prohibits only the act of going on the land of 
another after being forbidden to do so, the court below has 
expansively construed the law to cover petitioners’ act of 
remaining on the property after being directed to leave. 
This strained construction of the plain words of the law



11

converts the common English word “enter” into a word of 
art meaning “trespass” or “remain” and transforms the 
statute from one which fairly warns against one act into a 
law which fails to warn of conduct prohibited. The law is 
invalid as its general terms do not represent a clear legis­
lative determination to cover the specific conduct of peti­
tioners, which is required where laAvs deter the exercise of 
constitutional rights.

III.

The conviction violates petitioners’ right to freedom of 
expression as secured by the due process clause of the 
Fourteenth Amendment against state infringement. Peti­
tioners’ action here, a sit-in, is a well recognized form of 
protest and was entirely appropriate to the circumstances, 
including the use to which the privately owned property in­
volved had been dedicated by the owner. There were no 
speeches, picket signs, handbills, or other forms of expres­
sion which might possibly be inappropriate to the time and 
place. There was merely a request to be permitted to pur­
chase goods in the place provided for such purchases. The 
expression was not in such circumstances or of such a 
nature as to create a clear and present danger of any sub­
stantive evil the State had a right to prevent. The arrests 
improperly stifled a protest against racial discrimination.



12

A R G U M E N T

I.
North Carolina in Enforcing What Its Highest Court 

Has Denominated a “Clear Legal Right of Racial Dis­
crimination” Has Denied to Petitioners the Equal Pro­
tection of the Laws Secured by the Fourteenth Amend­
ment.

A. Arrest, Conviction, and Sentence to Prison for Tres­
pass for Having Violated the S. H. Kress Co.’s Re­
quirement of Racial Segregation at Its Public Lunch 
Counter Deny Petitioners the Equal Protection of 
the Laws Secured by the Fourteenth Amendment.

In affirming the conviction below the North Carolina Su­
preme Court has twice said that it was merely enforcing 
“the clear legal right of racial discrimination of the owner” 
(R. 82, 83). One need turn no further than to Shelley v. 
Kraemer, 334 U. S. 1, to see that it has been plain—if any 
constitutional doctrine can be called plain—that there is 
no “clear legal right of racial discrimination.” To the con­
trary, while in some circumstances there may be a personal 
privilege of making racial distinctions, the limit of that 
privilege certainly is reached when the person exercising 
it turns to state instrumentalities for assistance. Racial 
discrimination is constitutionally inadmissible when “the 
State in any of its manifestations has been found to have 
become involved in it.” Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 722.1 1

1 Segregation has been forbidden in schools, B r o w n  v. B o a r d  o f  
E d u c a t io n ,  347 U. S. 483; C o o p e r  v. A a r o n , 358 U. S. 1; parks and 
recreational facilities, M a y o r , e tc . o f  B a l t im o r e  v. D a w so n , 350 U. S. 
877; H o lm e s  v. A t la n ta ,  350 U. S. 879; N e w  O r le a n s  C i ty  P a r k  
I m p r o v e m e n t  A s s ’n  v. D e tie g e , 358 U. S. 54; and airports, T u r n e r



13

“ [I]t has never been suggested that state court action 
is innnunized from the operation of [the Fourteenth Amend­
ment] . . . simply because the act is that of the judicial 
branch of the state government.” Shelley v. Kraemer, 334 
U. S. at 18. See also Barrows v. Jackson, 346 U.S. 249; 
N.A.A.C.P. v. Alabama, 357 U. S. 499, 463. Police action 
which segregates denies Fourteenth Amendment rights. 
Taylor v. Louisiana, 370 U. S. 154; Baldwin v. Morgan, 287 
F. 2d 750 (5th Cir. 1961); Boman v. Birmingham Transit 
Co., 280 F. 2d 531, 533 n. 1 (5th Cir. 1960); see also Monroe 
v. Pape, 365 U. S. 167; Screws v. United States, 325 U. S. 
91. “Nor is the Amendment ineffective simply because the 
particular pattern of discrimination, which the State has 
enforced, was defined initially by the terms of a prior agree­
ment. State action, as that phrase is understood for the 
purposes of the Fourteenth Amendment, refers to exertions

v. M e m p h is , 369 U. S. 350; H e n r y  v. G re e n v il le  A i r p o r t  C o m m ’n , 
284 F. 2d 631 (4th Cir. 1960).

Segregation requirements have been prohibited in privately 
sponsored athletic contests, S ta te  A th le t ic  C o m m ’n  v. D o r s e y , 359 
U. S. 533; and in connection with privately owned transportation 
facilities, G a y le  v. B r o w d e r ,  352 U. S. 903; E v e r s  v. D w y e r ,  358 
U. S. 202; B a ile y  v. P a tte r s o n ,  369 U. S. 31; T a y lo r  v. L o u is ia n a ,  
370 U. S. 154; B a ld w in  v. M o rg a n , 287 F. 2d 750 (5th Cir. 1961); 
B o m a n  v. B ir m in g h a m  T r a n s i t  C o ., 280 F. 2d 531 (5th Cir. 1960). 
A State law construed to authorize discrimination by privately 
owned restaurants was thought to be “clearly violative of the 
Fourteenth Amendment” by Mr. Justice Stewart, concurring in 
B u r to n  v. W ilm in g to n  P a r k in g  A u th o r i t y ,  365 XJ. S. 715, 727. 
Three dissenting Justices agreed this would follow if that were a 
proper construction of the law, 365 U. S. 715, 727, 729. State laws 
requiring segregation in the use and occupancy of privately owned 
property were invalidated in B u c h a n a n  v. W a r le y ,  245 U. S. 60, 
and H a rm o n  v. T y le r ,  273 U. S. 668.

Among the numerous cases forbidding segregation in publicly 
owned but privately leased facilities, see B u r to n  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; T u r n e r  v. M e m p h is , 369 U. S. 
350; M u ir  v. L o u is v i l le  P a r k  T h e a tr ic a l  A s s ’n , 347 U. S. 971, vacat­
ing and remanding, 202 F. 2d 275; D e r r in g to n  v. P lu m m e r , 240 
F. 2d 922 (5th Cir. 1956), cert. den. su b  n om . C a s e y  v. P lu m m e r ,  
353 U. S. 924.



14

of state power in all forms.” Shelley v. Kraemer, 334 U. S. 
at 20. See also Burton v. Wilmington Parking Authority, 
365 U. S. 715, 722.

In the Civil Rights Cases, 109 U. S. 3, 17, this Court held 
outside the Amendment’s scope individual action “unsup­
ported by State authority in the shape of laws, customs, or 
judicial or executive proceedings” or “not sanctioned in 
some way the State,” 109 U. S. at 17. The opinion re­
ferred to “State action of every kind” inconsistent with 
equal protection of the laws, id. at 11; to “the operation of 
State laws, and the action of State officers executive or 
judicial,” id. at 11. Repeatedly, the opinion held within the 
scope of the Fourteenth Amendment “State laws or State 
proceedings,” id. at 11; “some State action,” id. at 13; “acts 
done under State authority,” id. at 13; “State action of 
some kind,” id. at 13; and the opinion pointed out that 
“States are forbidden to legislate or act in a particular 
way,” id. at 15. The Fourteenth Amendment is “addressed 
to counteract and afford relief against State regulations or 
proceedings,” id. at 23.

Racial discriminations “are by their very nature odious 
to a free people whose institutions are founded upon the 
doctrine of equality.” Iiirabayashi v. United States, 320 
U. S. 81, 100. Certainly in this case the State is more 
deeply implicated in enforcing that racism so odious to our 
Constitution than it was in Shelley v. Kraemer. For here, 
the State has not merely held its courts open to suitors who 
would seek their aid in enforcing discrimination, but has 
taken an active initiative in prosecuting petitioners crimi­
nally and sentencing them to prison terms.

Moreover, petitioners here assert not merely the general­
ized constitutional right found in the equal protection clause 
of the Fourteenth Amendment to be free from racial dis-



15

crimination. 42 U. S. C. 1981 provides: “ ‘All persons 
witliin the jurisdiction of the United States shall have the 
same right in every State and Territory to make and en­
force contracts, * * * and to the full and equal benefit of all 
laws and proceedings for the security of persons and prop­
erty as is enjoyed by white citizens * * * . ’ ” 42 U. S. C. 1982 
provides: “ ‘All citizens of the United States shall have 
the same right, in every State and Territory, as is enjoyed 
by white citizens thereof to * * * purchase * * * real and 
personal property.’ ” Referring to similar statutory provi­
sions involving jury service, this Court has declared: “ ‘For 
us the majestic generalities of the Fourteenth Amendment 
are thus reduced to a concrete statutory command when 
cases involve race or color which is wanting in every other 
case of alleged discrhnination.’ ” Fay v. New York, 332 
U. S. 261, 282-283.

The opinion below stresses that Kress’s is “a privately 
owned corporation” and “in the conduct of its store in 
Durham is acting in a purely private capacity” (R. 77). 
But “private” is a word of several possible meanings. To 
the extent that concepts of privacy play a part in defining 
rights here at issue, Kress’s privacy should be seen as it 
really is. Any suggestion that some exception to the Shelley 
rule should be made for a corporation which has sought 
state aid in enforcing racial discrimination in its enterprise 
open to the general public for profit, because somehow the 
inviolability of a private home may be impaired, is with­
out merit. This prosecution is not asserted to be in aid of 
any interest in privacy of the property owner, for it has 
opened the store to the public in general. Moreover, the 
proprietor has not expressed its preference, rather it has 
sought state aid to enforce the custom of the community. 
Were a state to enforce a trespass law to protect a real 
interest in some private aspect of property a different



1 6

result might be required because of the importance of the 
right of privacy which finds firm support in the decisions 
of this Court. Examples where such countervailing con­
siderations have applied are cases such as Breard v. Alex- 
andria, 341 U. S. 622, 626, 644, and ICovacs v. Cooper, 336 
U. S. 77. On the other hand a case such as Martin v. 
Struthers, 319 U. S. 141, is an instance where even con­
siderations of privacy did not overcome a competing con­
stitutional right like freedom of religion.2 In this case the 
right to freedom from state imposed racial discrimination 
does not compete with any interests the state may have in 
protecting privacy.3

2 And see W a tc h to w e r  B ib le  a n d  T r a c t  S o c . v. M e tr o p o lita n  L if e  
In s . C o ., 297 N. Y. 339, 79 N. E. 2d 433 (1948), in which the New 
York courts distinguished between the right to solicit in the streets 
of a large scale housing project and to go, without invitation, into 
the hallways to visit private apartments.

3 To weigh considerations of privacy in a case involving racial
discrimination would comport with the views of the framers of 
the Fourteenth Amendment. During the debate on the bill to 
amend the C iv i l  R ig h ts  A c t  of 1866, 14 Stat. 27, which served as the 
precursor to the C iv i l  R ig h ts  A c t  of 1875, 18 Stat. 335, Senator 
Sumner distinguished between a man’s home and places and facili­
ties of public accommodation licensed by law : “Each person,
whether Senator or citizen, is always free to choose who shall be his 
friend, his associate, his guest. And does not the ancient proverb 
declare that a man is known by the company he keeps ?_ But this 
assumes that he may choose for himself. His house is his ‘castle’; 
and this very designation, borrowed from the common law, shows 
his absolute independence within its walls; * * * but when he leaves 
his ‘castle’ and goes abroad, this independence is at an end. He 
walks the streets; but he is subject to the prevailing law of E q u a l­
i t y ;  nor can he appropriate the sidewalk to his own exclusive use, 
driving into the gutter all whose skin is less white than his own. 
But nobody pretends that Equality in the highway, whether on 
pavement or sidewalk, is a question of society. And, permit me to 
say that E q u a l i t y  in  a ll  in s t i tu t io n s  c r e a te d  o r r e g u la te d  b y  la w  is 
as little a question of society.” (Emphasis added). After quoting 
Holingshed, Story, Kent, and Parsons on the common law duties 
of innkeepers and common carriers to treat all alike, Sumner then 
said: “As the inn cannot close its doors, or the public conveyance 
refuse a seat to any paying traveler, decent in condition, so must it



17

B. Certainly, at Least, the State May Not by Its Police 
and Courts Enforce Such Segregation When It Stems 
From a Community Custom of Segregation Which 
Has Been Generated by State Law.

Certainly, at the very least, the well established rule— 
that states may not enforce racial discrimination—dis­
cussed in part I, applies where the racial segregation is 
not a matter of private choice, but expresses deep-rooted 
public policy.

That segregation was a “custom of the community” (R. 
22) is stated expressly in the record, although one hardly 
need turn there to learn a fact concerning conditions in 
society so well known. Child Labor Tax Case, 259 U. S. 20, 
27 (Chief Justice Taft). Ivress’s manager, however, made 
clear that the store’s segregation policy was merely that of 
the community.

It is the policy of our store to wait on customers de­
pendent upon the customs of the community. . . .  We 
have a stand-up counter on the first floor, and we serve 
Negroes and whites at that stand-up counter. We also 
serve white people who are accompanied by Negroes 
at the stand-up counter. . . . Even if Negroes accom-

be with the theater and other places of public amusement. Here are 
institutions whose peculiar object is the ‘pursuit of happiness,’ 
which has been placed among the equal rights of all.” Cong. Globe, 
42d Cong., 2d Sess. 382-383 (1872).

It is not unreasonable that considerations of privacy should 
weigh so heavily. The right of privacy against intrusion on one’s 
premises or into one’s personal affairs, 4 Blackstone’s Commentaries 
Ch. 13, §5(6) (Wendell’s ed. 1850), was recognized at common law, 
and is recognized generally in American law. See A. L. I., Restate­
ment of Torts, §867 (1939). This Court has recently reiterated that 
the due process clause protects privacy against intrusion by the 
States. M a p p  v. O h io , 367 U. S. 643, 654, 655; W o lf  v. C o lo ra d o , 
338 U. S. 25, 27-28. Cf. G ilb e r t  v. M in n e so ta , 254 U. S. 325, 336 
(Justice Brandeis dissenting); P u b l ic  U t i l i t ie s  C o m m ’n  v. P o lia k ,  
343 U. S. 451, 464, 468.



1 8

panied by white people were orderly at our luncheon­
ette because of the policy of the community we would 
not serve them, and that was our policy prior to May 
16, 1960. . . .  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 Guests and 
Employees Only” (R. 22-23).

The Civil Bights Cases speak of “customs having the 
force of law,” 109 U. S. 3, 16, as a form of state action.4 
Here, as in Garner v. Louisiana, 368 U. S. 157, “segregation 
is basic to the structure of . . . [the state] as a community; 
the custom that maintains it is at least powerful as any 
law.” (Mr. Justice Douglas concurring, at 181).5

But this custom of North Carolina is not separate from 
law. It has roots in and fills interstices of a complex net­
work of state mandated segregation. The North Carolina 
Advisory Committee to the United States Commission on 
Civil Rights has concluded that “so long as these compul­
sory statutes are on the books, some private citizens are 
more than likely to take it upon themselves to try to en­
force segregation.” 6

Most of this law was enacted about the turn of the 
twentieth century.7 These state and city imposed require-

4 See also 109 U. S. at 21: “long custom, which had the force of 
law . .  . ”

6 This Court has recognized that “ ‘Deeply embedded traditional 
ways of carrying out state policy . . . ’—or not carying it out—‘are 
often tougher and truer law than the dead words of the written 
text’. N a s h v ille  G. &  S t .  L . B . C o. v. B r o w n in g , 310 U. S. 362, 369.” 
P o e  v. G ilm a n , 367 U. S. 497, 502.

6 A discussion and presentation of this legislation may be found 
in North Carolina Advisory Committee to the United States Com­
mission on Civil Rights, S ta tu te s  a n d  O rd in a n c e s  R e q u ir in g  S e g r e ­
g a tio n  h y  R a c e  (March 9, 1962) (mimeographed) (hereafter 
cited as North Carolina Advisory Committee).

7 North Carolina Advisory Committee 23.



19

ments govern not only activities furnished by the state but 
privately-owned facilities as well. The subordinate role to 
which the segregation laws relegate Negroes is well illus­
trated by the national guard statute, N. C. Gen. Stat. §127-6: 
“No organization of Colored Troops shall be permitted 
where White troops are available, and while permitted to 
be organized, colored troops shall be under command of 
white officers.”

While the state has repealed statutes requiring segrega­
tion in the public schools, school segregation continues to 
be enforced by other means.8 Mental institutions,9 orphan­
ages,10 11 12 and schools for the blind and deaf,11 must be segre­
gated as must prisons,1" and training schools.13

Separate tax books must be kept for white, Negro, Indian 
and corporate taxpayers.14

State law requires racial distinctions where municipali­
ties take possession of existing cemeteries.15 Some city

8 Under the North Carolina Pupil Assignment Law “without a 
single exception, the boards have made initial assignment of white 
pupils to previously white schools and Negro children to previously 
Negro schools.” United States Commission on Civil Rights, T h e  
F i f t y  S ta te s  R e p o r t  477 (1961).

9 G. S. 122-3-6.
10 G. S. 116-138 to -142.
11 G. S. 116-109, -120, -124.
12 G. S. 148-43.
13 G. S. 134-79 to -84; G. S. 134-84.1 to -84.9. On the various forms 

of segregation in health care, among patients as well as professional 
personnel, in public as well as private facilities, see Equal Protec­
tion of the Laws Concerning Medical Care in North Carolina, Sub­
committee on Medical Care of the North Carolina Advisory Com­
mittee to the United States Commission on Civil Rights (undated) 
(mimeographed).

14 G. S. 105-323.
15 G. S. 65-37.



20

ordinances designate particular cemeteries for colored per­
sons and specific burial grounds for white citizens ;16 others 
note simply that places of interment are to be marked for 
Negroes or for Caucasians.17 Separate funeral homes must 
be maintained throughout the state.18

Municipalities also have enacted legislation requiring 
segregation. For example, a Charlotte ordinance, Article I, 
Section 5, Charlotte City Code, delineates the metes and 
bounds of the area within which its Negro police have au­
thority. See North Carolina Advisory Committee to the 
United States Commission on Civil Eights, op. cit. supra, 
at 3. The Director of the Department of Conservation and 
Development, while not requiring segregation in state 
parks, discourages Negroes from enjoying white facilities. 
Id. at 8.

North Carolina has also undertaken extensively to regu­
late so-called “private” relationships. There remains on 
the books of North Carolina (although invalid in view of 
decisions of this Court, Morgan v. Virginia, 328 U. S. 373; 
Gayle v. Browder, 352 U. S. 903) a statute requiring racial 
segregation in passenger trains and steam boats. G. S. GO- 
94 to -97. The Utilities Commission is directed by G. S. 
62-44 and G. S. 62-127.71 to require separate waiting rooms. 
Street cars must by statute be boarded white from the 
front and colored from the rear. G. S. 60-135 to -137. The 
Corporation Commission has been upheld in requiring en­
forced segregation on motor buses. Corporation Comm’n 
v. Transportation Committee, 198 N. C. 317, 320, 151 S. E. 
648, 649 (1930). In that opinion Judge Clarkson emphasized

16 Charlotte City Code, ch. 7, see. 7-9, 7-56; Sec. 7-19 of the Lum- 
berton Code; See. 8-1, Burlington Code.

17 Sec. 6-42, Winston-Salem Code; Sec. 7-9, Charlotte City Code.
13 G. S. 90-212.



21

that separation or segregation “has long been the settled 
policy” of North Carolina. See G. S. 60-139; State v. John­
son, 229 N. C. 701, 51 S. E. 2d 186 (1949).

Persons engaged in businesses employing more than two 
males and females must segregate on the basis of race in 
toilet facilities. G. S. 95-48. See G. S. 72-46 (1941). Per­
sons operating restaurants and other food handling estab­
lishments are required to obtain a permit from the State 
Board of Health. G. S. 72-46. The State Board inspector’s 
official form contains as one of the criteria on which res­
taurants are graded the factor of whether toilet facilities 
are “adequate for each sex and race.” North Carolina Ad­
visory Committee Report 18.

Fraternal orders may not be authorized to do business in 
North Carolina if white and colored persons are members 
of the same lodge. G. S. 58-267.

Marriage is forbidden between persons of the Negro and 
white races by the Constitution of North Carolina, Art. 
XIV, §8 (1868); G. S. 14-181 and G. S. 51-3.

Various statutes and ordinances throughout North Caro­
lina require segregation in taxicabs, carnivals, other places 
of amusement, and restaurants. North Carolina Advisory 
Committee Report 15, 17-20. Among these ordinances is 
one of the City of Durham requiring that in public eating 
places where persons of the white and colored races are 
permitted to be served, there shall be private, separate 
rooms for the accommodation of each race. Id. at 18.19

19 The state did not rely on the ordinance at trial, nor was it 
adverted to on appeal. Heretofore, the North Carolina Supreme 
Court has declined to notice municipal ordinances not introduced 
into evidence at trial. See S ta te  v. C ly b u r n , 247 N. C. 455, 101 
S. E. 2d 295 (1958).



22

C. Vann Woodward has written of the relative recency 
of the segregation system in America:

Southerners and other Americans of middle age or 
even older are contemporaries of Jim Crow. They 
grew up along with the system. Unable to remember 
a time when segregation was not the general rule 
and practice, they have naturally assumed that things 
have ‘always been that way.’ Or if not always, then 
‘since slavery times,’ or ‘since The War,’ or ‘since 
Reconstruction.’ Some even think of the system as 
existing along with slavery. Few have any idea of the 
relative recency of the Jim Crow laws, or any clear 
notion of how, when, and why the system arose. Wood­
ward, The Strange Career of Jim Crow, vii-viii (1955).

Even after the end of Reconstruction and during the 
so-called period of “Redemption” beginning around 1877, 
the rigid segregation system characteristic of later years 
had not become the rule. The history of segregation makes 
clear that during the early years after Reconstruction 
Negroes were unsegregated in many public eating estab­
lishments in the South. Id. at 18-24. The Jim Crow or 
segregation system became all-pervasive some years later 
as a part of the aggressive racism of the 1890’s and early 
1900’s, including Jim Crow laws passed at that time, which 
continued until an all-embracing segregation system had 
become the rule. In this way law shaped custom. Id. at 
ch. II.

Professor Woodward writes:

At any rate, the findings of the present investigation 
tend to bear out the testimony of Negroes from various 
parts of the South, as reported by the Swedish writer 
Gunnar Myrdal, to the effect that ‘the Jim Crow stat­
utes were effective means of tightening and freezing—



23

in many eases instigating—segregation and discrimina­
tion.’ The evidence has indicated that under conditions 
prevailing in the earlier part of the period reviewed 
the Negro could and did do many things in the South 
that in the latter part of the period, under different 
conditions, he was prevented from doing. Id. at 90-91. 

# # * # #
It has also been seen that their [Negroes] presence 

on trains upon equal terms with white men was once 
regarded as normal, acceptable, and unobjectionable. 
Whether railways qualify as folkways or stateways, 
black man and white man once rode them together and 
without a partition between them. Later on the state- 
ways apparently changed the folkways—or at any rate 
the railways—for the partitions and Jim Crow cars 
became universal. And the new seating arrangement 
came to seem as normal, unchangeable, and inevitable 
as the old ways. And so it was with the soda fountains, 
eating places, bars, waiting rooms, street cars, and 
circuses. Id. at 91-92.

Thus the system of segregation in places of public ac­
commodations, has from the beginning been a product of 
government, politics, and law.

This Court has recognized how law may work its effect 
in ways other than requiring obedience to statutory text. 
In Pollock v. Williams, 322 U. S. 4, the Court discharged 
the petitioner on a writ of habeas corpus because a statu­
tory presumption had induced a plea of guilty:

The State contends that we must exclude the prima 
facie evidence provision from consideration because 
in fact it played no part in producing this conviction. 
Id. at 13.

*  *  *  *  *



24

We cannot doubt that the presumption provision had 
a coercive effect in producing the plea of guilty. Id. 
at 15.

And see—Engel v. Vitale, 370 U. S. 421, 431 (indirect co­
ercive pressure upon religious minorities). As was said in 
N.A.A.C.P. v. Alabama, 357 U. S. 449, 463, “The crucial 
factor is the interplay of governmental and private action, 
for it is only after the initial exertion of state power . . . 
that private action takes hold.” 20 * * *

Therefore it hardly can be urged that the management 
was acting privately, unsanctioned by the state. Apart from 
state support of management’s decision to segregate, that 
decision itself represented the policy of North Carolina 
induced and nourished by its laws. As Mr. Justice Douglas 
wrote in Garner v. Louisiana, 368 U. S. 157, 181, the pro­
prietor’s “preference does not make the action ‘private,’ 
rather than ‘state,’ action. If it did, a minuscule of private 
prejudice would convert state into private action. More­
over, where the segregation policy is the policy of a state, 
it matters not that the agency to enforce it is a private 
enterprise.”

C. A F ortiori, the State May Not Arrest and Convict Peti­
tioners for Having Violated a Segregation Rule 
Which Stems From a State Generated, Community 
Custom of Segregation in Premises in Which the 
State Is Deeply Involved Through Its Licensing and 
Regulatory Powers.

The nature of the State’s involvement—demonstrated by 
extensive regulation and licensing—in the premises where

20 This Court has struck down state action which would enable
private individuals to seek reprisals against persons opposed to 
racial discrimination, N .A .A .C .P .  v. A la b a m a , 357 U. S. 449. A
f o r t io r i ,  the link between state r e q u ir e m e n ts  of segregation and the
conduct it fosters—not merely permits—should be recognized.



25

petitioners were arrested for violating the state-generated 
community custom shows even further the invalidity of the 
judgment below. This discrimination has been enforced in 
an area of public life with which the State is so intimately 
involved that Kress’s lunch counter business is by law 
required to be extensively licensed and regulated. The 
very publicness of the enterprise is demonstrated not only 
by the fact that Kress serves the general public, but by 
the interest which the State has demonstrated in that ser­
vice. In addition to the detailed regulation of business cor­
porations (including foreign corporations)21 North Carolina 
law requires various licenses,22 imposes taxes,23 and author­
izes state and local health regulation24 of this type of 
business. As Mr. Justice Douglas wrote in Garner v. Louisi­
ana, 368 U. S. at 183-84:

A state may not require segregation of the races on 
conventional public utilities any more than it can seg­
regate them in ordinary public facilities. As stated by 
the court in Boman v Birmingham Transit Co. (CA 
5 Ala) 280 F2d 531, 535, a public utility “is doing some-

21 North Carolina General Statutes, §55-140.
22 A state license is required for the operation of a soda fountain 

G. S. §55-79 or a chain store G. S. §105-98. A license is required for 
all establishments selling prepared food G. S. §105-62. Separate 
licenses are required to sell other items, such as tobacco products, 
G. S. §105-85 or records and radios, G. S. §105-82.

23 Retail stores must collect sales and use taxes for the state to 
keep their licenses to do business (G. S. §105-164.4-6).

24 State law establishes an overlapping pattern of health regula­
tions for restaurants. See N. C. Gen. Laws, Ch. 130 (1957). Section 
13 of this chapter authorizes each county to operate a health de­
partment; local boards of health can make rules and regulations 
“not inconsistent with state law,” Sec. 17 (b). Both the State Board 
of Health and the Durham County Board of Health prescribe rules 
applicable to food service establishments. See State Board of 
Health Laws, Rules and Regulations; County of Durham Sanitary 
Code, Sec. 1.



2 6

thing the state deems useful for the public necessity or 
convenience.” It was this idea that the first Mr. Justice 
Harlan, dissenting in Plessy v Ferguson, . . . ad­
vanced. Though a common carrier is private enter­
prise, “its work” he maintained is public. Id., at 554. 
And there can be no difference, in my view, between one 
kind of business that is regulated in the public interest 
and another kind so far as the problem of racial seg­
regation is concerned. I do not believe that a State 
that licenses a business can license it to serve only 
whites or only blacks or only yellows or only browns. 
Race is an impermissible classification when it comes 
to parks or other municipal facilities by reason of the 
Equal Protection Clause of the Fourteenth Amend­
ment.

In Public Utilities Comm’n v. Poliak, 343 U. S. 451, 
this Court found sufficient governmental responsibility to 
require decision of a Fifth Amendment due process claim 
where the principal governmental involvement was a deci­
sion by a regulatory body to do nothing about private 
activity (radio broadcast on streetcars) it could have pro­
hibited. The lunch counter in this case is also regulated 
by government, although perhaps not so closely as the 
streetcar company in Poliak. But this case has an element 
that the Poliak case did not, i.e., that government has done 
so much to encourage racial segregation in public life that 
it must share responsibility for the discriminatory rule.

And see Steele v. Louisville and Nashville R.R. Co., 323 
U. S. 192; Nixon v. Condon, 286 U. S. 73; Betts v. Easley, 
161 Kan. 459, 169 P. 2d 831. In each of these cases, state 
initiative and licensing in establishing and maintaining the 
enterprise led to a holding or implication that the Fifth 
or Fourteenth Amendments forbid racial discrimination.



27

Here, indeed, is a case where the State “to some sig­
nificant extent” in many meaningful “manifestations has 
been found to have become involved. . . . ” Burton v. 
Wilmington Parking Authority, 365 U. S. 715, 722.

D. No Essential Property of S. H. Kress and Co. Is Here 
at Issue; the Right to Make Racial Distinctions at a 
Single Counter in a Store Open to the Public Does 
Not Outweigh the High Purposes of the Fourteenth 
Amendment.

The highest court of North Carolina has attempted to 
differentiate this case from others which have refused to 
sanction state enforcement of racial discrimination by as­
serting that it was merely neutrally enforcing a “funda­
mental, natural, inherent and inalienable” (R. 81) private 
property right, allegedly “ ‘a sacred right, the protection of 
which is one of the most important objects of government’ ” 
(R. 81). Referring to the claimed right to exclude peti­
tioners the court below held, “white people also have 
constitutional rights as well as Negroes, which must be 
protected, if our constitutional form of government is not 
to vanish from the face of the earth” (R. 84).

This description of the property right cannot withstand 
analysis. First, the court below dealt with the alleged right 
of the property owner to racially discriminate as if it were 
inviolate, tvhen actually, states can prohibit racial discrim­
ination in public eating places without offending any con­
stitutionally protected property rights.25 And though the 
laws violate the Fourteenth Amendment, North Carolina 
has hardly hesitated in imposing the requirement of racial

25 See W e s te r n  T u r f  A s s ’n  v. G re e n b e rg , 204 U. S. 359; R a i lw a y  
M a il A s s ’n  v. C o rs i, 326 U. S. 88; D is t r i c t  o f  C o licm b ia  v. J o h n  R .  
T h o m p so n  C o ., 346 U. S. 100; B o b -L o  E x c u r s io n  C o. v. M ic h ig a n , 
333 U. S. 28; Konvitz & Leskes, A Century of Civil Rights 172-177 
(1961).



2 8

segregation on private property owners.26 * Thus, of course, 
the asserted property right to treat the races as one desires 
on his property is very far indeed from an absolute or an 
inalienable right and has not even been so regarded by 
North Carolina. “ [T]he power of the State to create and 
enforce property interests must be exercised within the 
boundaries defined by the Fourteenth Amendment.” Shelley 
v. Kraemer, 334 U. S. 1, 22, citing Marsh v. Alabama, 326 
U. S. 501. Indeed, the Court said in Marsh v. Alabama, 
supra, at 506, that constitutional control becomes greater 
as property is more public in its use:

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. Cf. Republic 
Aviation Corp. v. Labor Board, 324 U. S. 793, 798, 802, 
n. 8.

Of course, the Fourteenth Amendment does not forbid a 
state to assist in the enforcement of property rights as 
such. Indeed, for an obvious example, the state has an 
obligation not to engage in or assist in the invasion of the 
privacy of the home. Considerations of privacy, discussed 
in more detail, supra, pp. 15-16, offer one useful basis 
for distinguishing between permissible and impermissible 
types of state action.

Since “property or ownership” is, as Mr. Justice Cardozo 
has written, a “bundle of privileges,” Henneford v. Silas 
Mason Co., 300 U. S. 577, 582, or as stated elsewhere, “a 
group or bundle of rights” given by the state, Blodgett, 
Comparative Economic Systems 24 (1944), it matters a

26 See pp. 20 to 21, su p r a , citing North Carolina laws requiring
segregation on private property.



29

great deal which of the rights or privileges constituting 
Kress’s property was enforced in this prosecution. Vai'ious 
characteristics of the property interest demonstrate that 
this case should not depart from the general rule that 
states may not support racial discrimination.

The asserted property interest is hut a claimed right to 
control the conduct and associations of others. But this 
claimed right is clearly separable from other incidents of 
ownership of the property such as fixing prices, choosing 
merchandise for sale, setting hours of business, selling the 
business or closing it down, to name but a few.

The power to regulate the conduct and associations of 
others has never been an unrestrained property right. 
Illustrations include limitations that the law has placed 
on those who would use their property to control the con­
duct of donees, as by requiring divorce or separation,27 or 
with respect to marriage,28 restrictions compelling separa­
tion of a child from its parents,29 and requirements con­
trolling certain personal habits.30

27 Provisions requiring divorce or separation were held void in : 
D w y e r  v. K u c h le r ,  116 N. J. Eq. 426, 174 Atl. 154 (Ch. 1934) ; 
In  B e  H a ig h t’s  W il l ,  51 App. Div. 310, 64 N. Y. S. 1029 (2d Dept. 
1900); D a v id s o n  v. W ilm in g to n  T r u s t  C o ., 23 Del. Ch. 1, 2 A. 2d 
285 (Ch. 1938); W in te r la n d  v. W in te r la n d , 389 111. 384, 59 N. E. 
2d 661 (1945) ; H a w k e  v. E u y h a r t ,  30 Neb. 149, 46 N. W. 422 
(1890); C r u g e r  v. P h e lp s ,  21 Misc. 252, 47 N. Y. S. 61 (Sup. Ct. 
1897).

28 Certain marriage clauses have been held ineffective, 6 Powell, 
B e a l P r o p e r ty  fl851; A. L. I., B e s ta te m e n t  o f  P r o p e r ty ,  §424 
(1944) ; M a d d o x  v. M a d d o x , A d m ’r , 52 Ya. 804 (1954).

29 Restrictions which compel the separation of a minor child from 
its parent have not been viewed with favor, 6 Powell, Real Property 
|f858, at 64; I n  B e  C a r p le ’s E s ta te ,  140 Misc. 459, 250 N. Y. S. 680 
(Surr. Ct. 1931); I n  B e  F o r te ’s W il l ,  149 Misc. 327, 267 N. Y. S. 
603 (Surr. Ct. 1933); I n  B e  B a n n e y ’s E s ta te ,  161 Misc. 626, 292 
N. Y. S. 476 (Surr. Ct. 1936).

30 H o lm e s  v. C o n n e c tic u t T r u s t  &  S a fe  D e p o s i t  C o ., 92 Conn. 507, 
103 Atl. 640 (1918) (condition that eonveyee’s husband abstain



30

The power to impose restraints on alienation has been 
severely limited by courts and legislatures.31 Restrictive 
covenants have been limited by common law.32 Their en­
forcement in courts of equity33 and courts of law34 has been 
forbidden by the Fourteenth Amendment where race was 
the reason for the restriction. And, of course, the rule 
against perpetuities is of ancient lineage.35 * *

A business man is not always free to set his own prices. 
Fair trade acts on the one hand, approved by the Miller- 
Tydings Act amendment of §1 of the Sherman Act, 15 
U. S. C. §1, require some businessmen to sell at fixed prices. 
Anti-trust concepts on the other hand, originating in the 
common law, Apex Hosiery Co. v. Leader, 310 U. S. 469 
(1940); United States v. Addyston Pipe & Steel Co., 85 
Fed. 271 (6th Cir. 1898), aff’d, 175 U. S. 211 (1899), and 
embodied in the statutes of the United States, Robinson- 
Patman Act, 15 U. S. C. §13 et seq.; Clayton Act, 15 U. S. C. 
§12 et seq.; Sherman Anti-Trust Act, 15 U. S. C. §§1 et seq., 
have condemned price discrimination, price fixing, and con­
spiracies to fix resale prices. The right to select customers

from tobacco and liquor held vo id ); cf. D ’A r c a n g e lo  v. D ’A r c a n g e lo ,  
137 N. J. Eq. 63, 43 A. 2d 169 (Ch. 1945) (legatee must employ 
testator’s brother as bus driver, at designated salary for a corpora­
tion in which legatee had received an interest; invalidated).

31 Gray, R e s tr a in ts  on  th e  A l ie n a tio n  o f  P r o p e r ty  §259 (2d ed. 
1895); A. L. I., R e s ta te m e n t  o f  P r o p e r ty ,  Div. 4, Social Restrictions 
Imposed Upon the Creation of Property Interests 2121 (1944); 
Browder, I l le g a l  C o n d itio n s  a n d  L im i ta t io n s : M is ce lla n e o u s  P r o v i ­
s io n s , 1 Okla. L. Rev. 237 (1948).

32 P o r te r  v. B a r r e t t ,  233 Mich. 373, 206 N. W. 532 (1925).
33 S h e lle y  v. K r a e m e r ,  334 U. S. 1.
34 B a r r o w s  v. J a c k s o n , 346 U. S. 249.
35 Gray, T h e  R u le  A g a in s t  P e r p e tu i t ie s  §201 (4th ed. 1942); 6

Powell, R e a l P r o p e r ty ,  flf759-827; Leach, P e r p e tu i t ie s  in  a  N u ts h e ll ,
51 Harv. L. Rev. 638 (1938).



31

has also been curtailed by the antitrust laws,36 as well as 
common law, and even the right of a single trader has 
been greatly limited.37

Numerous statutes limit property holders in their power 
to refuse to sell or rent on grounds of race or color38 or to 
refuse to serve patrons in public accommodations on the 
grounds of race or color.39 Historically, the right to select

36 K lo r ’s v. B r o a d w a y -H a le  S to r e s , 359 U. S. 207 (1959), L o ra in  
J o u rn a l C o. v. V . S ., 342 U. S. 143 (1951).

37 U n ite d  S ta te s  v. C o lg a te , 250 U. S. 300 (1919); See 77. S . v. 
P a rk e , D a v is  &  C o., 362 U. S. 29 (1960); Rankin, T h e  P a r k e , D a v is  
C ase, 1961 Antitrust Law Symposium, New York State Bar Asso­
ciation Section on Antitrust Law 63 (1961).

38 Cal. Health & Safety Code §35740; Mass. G. L. c. 151B, 
§6 (Supp. 1961) ; N. J. Stat. Ann. §18:25-4 (Supp. 1961); Wash. 
Rev. Code §§49.60.030, 49.60.040 (1957); Cal. Civil Code, §51 
(Supp. 1961); Colo. Rev. Stat. Ann. §§69-7-1, to 69-7-7 (Supp.
1960) ; Conn. Stat. Rev. §53-35 (Supp. 1960); Mass. Gen. L. c. 
151B, §4 (Supp. 1961), as amended by Acts, 1961, c. 128; Minn. 
Stat. Ann. §§363.01-.13, as amended by L. 1961, c. 428 to become 
effective in 12/31/62; Ore. Rev. Stat. §659.033 (1959); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. Y. Executive Law, §290 
(Supp. 1962); Pa. Stat. Ann., tit. 43, §953 (Supp. 1961). Cases 
holding some of the ordinances and statutes constitutional are: 
L e v i t t  &  S o n s , In c . v. D iv is io n  A g a in s t  D is c r im in a tio n , 31 N. J. 
514, 158 A. 2d 177 (1960) ; M a ss. C o m m ’n  A g a in s t  D is c r im in a tio n  
v. C o la n g e lo , 30 U. S. L. W. 2608 (Mass. 1962); S ta te  C o m m ’n 
A g a in s t  D is c r im in a tio n  v. P e lh a m  H a ll  A p a r tm e n ts ,  10 Misc. 2d 
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).

39 Cal. Civil Code, §§51-52 (Supp. 1961); Colo. Rev. Stat. Ann. 
25—1—1 e t seq . (1953); Conn. Gen. Stat. Rev. §53-35 (Supp.
1961) ; D. C. Code §47-2901 e t seq . (Supp. 1960) ; Indiana Stat. 
Ann. §§10-901, 10-902 (Supp. 1962); Iowa Code Ann. §735.1
(1950); Kansas Gen. Stat. Ann. §21-2424 (1949); Mass. Gen. L. 
c. 272, §§92A, 98 (1956); Mich. Stat. Ann. §28.343 (Supp. 1959); 
Minn. Stat. Ann. §327.09 (1947) ; Mont. Rev. Codes §64-211 
(Supp. 1961); Neb. Rev. Stat. §§20-101, 102 (1943); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. J. Stat. Ann. §§10:1-2 to 
10:1-7 (1960) ; N. M. Stat. Ann. §§49-8-1 to 49-8-6 (Supp. 1961); 
N. Y. Civil Rights Law §40 (1948), Executive Law, §§292(9), 
296(2) (Supp. 1962); N. D. Cent. Code, §12-22-30 (Supp. 1961);



32

customers has been limited by common law and statute.40 
It is well known that innkeepers and carriers do not have 
freedom arbitrarily to select or reject patrons. Beale, The 
Law of Innkeepers and Hotels (1906).

The foregoing limitations on the power to control the 
conduct and associations of others describe particular ex­
amples of the general principle that “property rights” are 
not “sacred” and “inalienable” in the sense that common 
law, statute, and constitution may not limit or shape them 
where they have harmful public consequences. Further 
examples indicate different aspects of this thoroughly set­
tled, fundamental legal truth. Property owners have been 
compelled to destroy valuable cedar forests which harbored 
fungus threatening neighboring apple orchards,41 to spend 
funds to install fire extinguishing equipment,42 to limit the

Ohio Rev. Code §4112.02(G) (Supp. 1961); Ore. Rev. Stat. 
§§30.670-.680, as amended by L. 1961 c. 247 ■ Pa. Stat. Ann., tit. 18, 
§4654, as amended by Act No. 19 (1961) ; R. I. Gen. Laws §§11-24-1 
to 11-24-6 (1956) ; Vt. Stat. Ann., tit. 13, §§1451, 1452 (1958); 
Wash. Rev. Code, §§49.60.040, 49.60.215 (1962) ; Wis. Stat. Ann. 
§924.04 (1958), as amended (Supp. 1962); Wyo. Stat. §§6-83.1, 
6-83.2 (Supp. 1961).

40 Mund, “The Right to Buy—And Its Denial to Small Business,” 
Senate Document #32 , 85th Cong., 1st Sess., Select Committee on 
Small Business (1957); Adler, B u s in e s s  J u r is p r u d e n c e , 28 Harv. 
L. Rev. 135 (1914) ; Statute of Labourers, 25 Ed. I ll ,  Stat. 1 
(1350) (no one could refuse to practice his calling to whomsoever 
applied). The following statutes penalized a businessman’s refusal 
to serve all comers: (1357), 31 Ed. I l l ,  c. 10 (victualers) ; (1360), 
35 Ed. I l l  (fishermen); (1433), 11 Hen. VI, c. 12 (candlers); 
(1464), 4 Ed. IV, c. 7 (shoemakers); L a n e  v. C o tto n , 1 Ld. Raym. 
646, 655; 1 Salk. 18, 19; 12 Mod. 472, 485 (“If a man takes upon 
himself a public employment, he is bound to serve the public as 
far as the employment extends; and for refusal an action 
l i e s . . . ”).

41 M ille r  v. S ch o en e , 276 U. S. 272 (1928).
42 Q u e en s id e  H i l l s  R e a l t y  C o. v. S a x l, 328 U. S. 80 (1946).



33

size of billboards,43 and to make loaves of bread a certain 
size.44 Moreover, employers have been compelled to allow 
labor organizational activities to be conducted on their 
property.45 And only recently, property holders have been 
forbidden to use their property in a way which would, in 
the course of a program of racial discrimination, intimidate 
their lessees in the exercise of the franchise, United States 
v. Beaty, 288 F. 2d 653 (6th Cir. 1961).

Other facets of the claimed property right to discriminate 
on the basis of race in these circumstances are clearly 
separable from the core of Kress’s interest in its business. 
In addition to the fact that no privacy has been intruded 
upon, the asserted property right did not seek to protect 
the premises from use alien to their intended function. 
Petitioners sought only to purchase and consume food in 
an area provided for such activity. The asserted right to 
exclude expressed only a preference for racial segregation 
and not any objection to petitioners’ demeanor or conduct. 
And this was not a private choice. It expressed community 
custom. The capricious nature of the discrimination was 
highlighted by the fact that this same store served food 
to Negroes and to whites accompanying them if they were 
standing, but not if they were seated (E. 22). As in Shelley 
v. Kraemer, 334 U. S. 1, 10, the restriction did not limit 
the type of use made of the premises, nor the type of per­
son or conduct permitted thereon except to refer to race.

Moreover, the property interest enforced below attempted 
only to achieve discrimination in a store thrown open by

43 S e m le r  v. O reg o n  S ta te  B o a r d  o f  D e n ta l  E x a m in e r s , 294 U. S. 
608 (1935); S t .  L o u is  P o s te r  A d v e r t i s in g  C o. v. S t .  L o u is , 249 U. S. 
269 (1919) ; T h o m a s  C u sa ck  C o. v. C h ica g o , 242 U. S. 526 (1917).

44 S c h m id in g e r  v. C h ica g o , 226 U. S. 578.
45 N .L .R .B . v. B a b c o ck  &  W ilc o x  C o ., 351 U. S. 105 (1955); R e ­

p u b lic  A v ia t io n  C o r p . v. N .L .R .B ., 324 U. S. 793 (1945).



34

the owner to the general public (including Negroes) for his 
own business advantage (Cf. Marsh v. Alabama, 326 U. S. 
501, 506). The specific area within the store in dispute,
i.e., the lunch counter, was a public part of the premises 
and an integral part of a single commercial establishment 
serving the public. Though a sign at the counter stated 
“Invited Guests and Employees Only” (R. 23), in practice 
the category of “Invited guests” was meant to include the 
entire white public, except whites accompanying Negroes 
(R. 22-23).

Consequently, the property interest enforced below is 
simply a claimed right to enforce racial discrimination in 
very particular circumstances. It obviously is not true that 
refusal to enforce this asserted incident of ownership de­
stroys the whole bundle of rights. That result would be 
contrary to the entire genius or our jurisprudence.

The premise that Kress owns the property does not 
lead to the ultimate logical extreme that it may absolutely 
control the conduct and associations of others in the store.

Mr. Justice Holmes has written that “All rights tend 
to declare themselves absolute to their logical extreme. Yet 
all in fact are limited by the neighborhood of principles of 
policy which are other than those on which the particular 
right is founded, and which become strong enough to hold 
their own when a certain point is reached.” Hudson County 
Water Co. v. McCarter, 209 U. S. 345, 355. Only last term, 
Mr. Justice Frankfurter, dissenting, pointed out the in­
dubitable truth that “An end of discrimination against the 
Negro was the compelling motive of the Civil War Amend­
ments. The Fifteenth expresses this in terms and it is no 
less true of the Equal Protection Clause of the Fourteenth.” 
Baker v. Carr, 369 U. S. 186, 285-86. In the case at bar 
Kress’s property is limited by the Fourteenth Amendment



35

and does not reach the constitutionally untenable logical 
extreme that the states may aid the store in upholding 
racism. “The Constitution confers upon no individual the 
right to demand action by the State which results in the 
denial of equal protection of the laws to other individuals.” 
Shelley v. Kraemer, 334 U. S. 1, 22.

E. In Any Event the Convictions Below Must Fall When, 
in Addition to the Foregoing, North Carolina Has 
Failed to Protect Negro Citizens in the Right to 
Equal Access to Public Accommodations.

Here, however, we have more than the elements set forth 
above—State arrest, conviction and prison term; imple­
mentation of a community custom of racial segregation 
generated by state law; enforcement of an odious property 
right of minor consequence to the owner; elaborate state 
initiative and involvement in establishment and mainte­
nance of the enterprise. Here the State has failed to pro­
vide what the Civil Rights Cases assumed the States did 
provide: “a right to enjoy equal accommodation and priv­
ileges,” which this Court termed “one of the essential rights 
of the citizen which no state can interfere with.” 109 U. S. 
at 19.

This Court has recognized that States’ failure or refusal 
to act can deny the equal protection of the laws. Burton 
v. Wilmington Parking Authority, 365 U. S. 715, 725; 
Terry v. Adams, 345 U. S. 461, 469; Truax v. Corrigan, 257 
U. S. 312; see Lynch v. United States, 189 F. 2d 476 (5th 
Cir. 1951); Catlette v. United States, 132 F. 2d 902 (4th 
Cir. 1943).

Indeed, it is questionable whether the verbal concept of 
“state action” in equal protection cases rests on more than 
a misunderstanding,46 for the phrase, no state shall deny

46 See, generally Mr. Justice Harlan dissenting in C iv i l  R ig h ts  
C ases, 109 U. S. 3, 26-62.



36

equal protection refers even more naturally to state inac­
tion than to state action.

Mr. Justice Woods, a member of the majority in the Civil 
Rights Cases, stated in United States v. Hall, 26 Fed. Cas. 
79, 81 (No. 15,282 1871):

Denying includes inaction as well as action, and deny­
ing the equal protection of the laws includes the omis­
sion to protect, as well as the omission to pass laws 
for protection.

His concurrence with the majority in the Civil Rights Cases 
may, therefore, be explained by his agreement with their 
assumption that remedies against the discrimination in 
those cases existed under state law.

This indeed was a view held by some of the legislators 
concerned with the scope of the Amendment at or around 
the time of its passage. For example, Representative Wil­
son of Indiana in debates on the Enforcement Act of April 
20, 1871, 17 Stat. 13, argued that the states were under an 
obligation to assure equality and that failure to do so was 
a denial of equal protection:

1. The provisions ‘no State shall deny’ and ‘Congress 
shall have power to enforce’ mean that equal pro­
tection shall be provided for all persons.

2. That a failure to enact the proper laws for that 
purpose, or a failure to enforce them, is a denial of 
equal protection. (Emphasis added.)

3. That when there is such a denial Congress may 
enact laws to secure equal protection.47

47 Cong. Globe, 42nd Congress, 1st Sess. 483 (1871).



37

Representative Lawrence in debates on the Civil Rights 
Act of 1875 stated:

What the State permits by its sanction, having the 
power to prohibit, it does in effect itself.48

Senator Pool in debates on the Enforcement Act of May 
31, 1870, 16 Stat. 140, argued that:

. . . but to say that it shall not deny to any person the 
equal protection of the law it seems to me opens up 
a different branch of the subject. It shall not deny by 
acts of omission, by a failure to prevent its own citi­
zens from depriving by force any of their fellow- 
citizens of these rights.49 (Emphasis added.)

This view is endorsed by the opinion in the Civil Rights 
Cases, for that decision was based on the assumption that 
the states in question would provide remedies securing to 
their citizens the right of access to places of public accom­
modation without racial discrimination:

We have discussed the question presented by the 
law on the assumption that a right to enjoy equal ac­
commodations and privileges in all inns, public con­
veyances, and places of public amusement, is one of

48 Cong. Rec., 43d Cong., 1st Sess. 412 (1874).
49 Cong. Globe, 41st Cong., 2d Sess. 3611 (1870).
Other contemporary congressmen also suggested that state in­

action may he as culpable as action: In a speech delivered by 
Representative Bingham of Ohio, the framer of the key phrases in 
Section One, it was repeatedly stated that the Fourteenth Amend­
ment granted Congress the power to act on individuals and could 
provide relief against the denial of rights by the states whether by 
“acts of omission or commission.” Appendix to the Cong. Globe, 
42d Congress, 1st Sess. 85. Representative Coburn of Indiana said 
that a state could deny equal protection by failing to punish in­
dividuals violating the rights of others. Cong. Globe, 42d Congress, 
1st Sess. 459.



38

the essential rights of the citizen which no state can 
abridge or interfere with (109 U. S. at 19). (Emphasis 
added.)

#  #  #  *  #

Can the act of a mere individual, the owner of the 
inn, the public conveyance or place of amusement, 
refusing the accommodation, be justly regarded as 
imposing any badge of slavery or servitude upon the 
applicant, or only as inflicting an ordinary civil injury, 
properly cognizable by the laws of the State, and 
presumably subject to redress by those laws until the 
contrary appears? (109 U. S. at 24). (Emphasis 
added.)

Mr. Justice Bradley’s entire opinion was concerned with 
the question whether the Fourteenth Amendment had con­
ferred on Congress the power to regulate the acts of private 
individuals when, as he presumed, the States were exer­
cising their responsibilities toward the goal of eliminating 
racial discrimination. While he concluded in the negative, 
it is extremely doubtful that the result would have been 
the same if a state had been found to be in effect sanction­
ing private discrimination by laxity in this regard. See 
Konvitz & Leskes, A Century of Civil Rights 150 (1961); 
Abernathy, Expansion of the State Action Concept Under 
the Fourteenth Amendment, 433 Cornell L. Q. 375, 376; 
Hale, Force and the State: A Comparison of “Political” 
and “Economic” Compulsion, 35 Colum. L. Rev. 149, 184 
(1935); Poliak, Racial Discrimination and Judicial In­
tegrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 
1, 21 (1959).

This case, therefore, is like Rurton v. Wilmington Park­
ing Authority, 365 U. S. 715, 725:

[T]he Authority could have affirmatively required 
Eagle to discharge the responsibilities under the Four-



39

teenth Amendment imposed upon the private enter­
prise as a consequence of state participation. But no 
State may effectively abdicate its responsibilities by 
either ignoring them or by merely failing to discharge 
them whatever the motive may be. . . . By its inaction 
. . .  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 dis­
crimination.

For here in an area in which the State is deeply involved 
it has both positively and negatively sanctioned the racial 
segregation which gave rise to this case.

n.
The Criminal Statute Applied to Convict Petitioners 

Gave No Fair and Effective Warning That Their Actions 
Were Prohibited: Petitioners’ Conduct Violated No 
Standard Required by the Plain Language of the Law; 
Thereby Their Conviction Offends the Due Process 
Clause of the Fourteenth Amendment and Conflicts With 
Principles Announced by This Court.

Petitioners were convicted under North Carolina General 
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



40

prohibit also remaining on property when directed to leave 
following lawful entry (E. 82). 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 deliber­
ately ignored racial signs posted outside an ice cream parlor 
and also refused to leave upon demand),50 92 years after 
enactment of the law.51

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 welcome 
within the store—-apart from the basement lunch counter. 
The arresting officer stated that, “The only crime committed 
m my presence, as I  saw it, was their failure and refusal to 
leave when they were ordered to do so by the manager” 
(E. 26). There were no discriminatory signs outside the 
store (E. 23). No sign forbade Negroes and white persons 
who accompany Negroes to sit at the lunch counter; the sign 
said merely “Invited Guests and Employees Only” (E. 23). 
Whatever petitioners’ knowledge of the store’s racial policy 
as it had been practiced, there was no suggestion that they

50 In the C ly b u r n  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 fol­
lowed 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 C ly b u r n  case are summarized in the opinion 
below in this case (R. 79).

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



41

had ever been forbidden to go to the lunch counter and 
request service. The Court’s conclusory statement that de­
fendants “entered” (trespassed) “after having been for­
bidden to do so” (R. 88), was simply a holding that defen­
dants’ acts in failing to leave when directed violated the 
statute.

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 proc­
ess 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 con­
struction of the law.

The due process clause of the Fourteenth Amendment 
requires that criminal statutes be sufficiently express 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.” 
Lansetta v. New Jersey, 306 U. S. 451, 453.

The basic function of the proscription against “vague­
ness” is to ensure that a defendant at the time of his acts 
is sufficiently apprised by the state law that these acts are 
forbidden. The whole thrust of the doctrine, therefore, con­
cerns a right to fair warning at a time prior to the state 
court’s interpretation of the statute under which the prose­
cution was had. There must, therefore, be some limits set 
to the range permitted to construction if the right to fair 
warning is not to be seriously curtailed. Judicial construc­
tion often has been permitted to cure criminal statutes of the 
vice of vagueness, but these have been constructions which 
confine, not expand, statutory language. Cf. Chaplinsky v.



42

New Hampshire, 315 U. S. 568, with Herndon v. Lowry, 301 
U. S. 242. The more the construction expands a statute and 
varies from what is reasonably predictable by the plain 
words, the more it should be open to a charge of vagueness 
in the application. In its present posture, the trespass stat­
ute has been so judicially expanded that it could not have 
given fair and effective warning of the acts it now prohibits. 
Rather by expansive interpretation the statute now reaches 
more than its words fairly and effectively define. This 
Court, by adjudging the construction vague in the applica­
tion does not usurp the function of the state court as the 
ultimate arbiter of the meaning of state statutes. It merely 
prevents an ad hoc statement of the posture of state law 
from acting to deprive the defendants of fair notice required 
by the due process clause of the Fourteenth Amendment. 
This Court has in the past exercised such residual control 
over construction of state law which unreasonably threat­
ened defendants with a loss of their constitutional rights. 
N. A. A. C. P. v. Alabama, ex rel. Patterson, 357 U. S. 449; 
Staub v. Baxley, 355 U. S. 313.

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 interpreta­
tion is at war with a fundamental concept of the com­
mon law that crimes must be defined with appropriate 
definiteness. Cf. Lametta v. New Jersey, 306 U. S. 451, 
and cases cited.

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



43

criminal provision of the Federal Food, Drug, and Cosmetic 
Act which made criminal a refusal to permit entry or in­
spection of business premises “as authorized by” another 
provision which, in turn, authorized certain officers to enter 
and inspect “after first making request and obtaining per­
mission of the owner.” The Court said in Cardiff, at 344
U. S. 174,176-177:

The vice of vagueness in criminal statutes is the treach­
ery they conceal either in determining what persons 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 IT. S. 25, 27; United States v. Weitzel, 246 U. S. 
533, 543, and United States v. Wiltherger, 18 U. S. (5 
Wheat.) 76, 96. Through these cases runs a uniform appli­
cation of the rule expressed by Chief Justice Marshall:

It would be dangerous, indeed, to carry the principle, 
that a case which is within the reason or mischief of a 
statute, is within its provisions, so far as to punish 
a crime not enumerated in the statute, because 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 akin to the constitutionally required rule of fair and



44

effective notice. This close relationship is indicated by the 
references to cases decided on constitutional grounds. The 
Pierce opinion cited for comparison Lanzetta v. New Jersey, 
supra, and “cases cited therein,” while Cardiff mentions 
United States v. L. Colien 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” connotes 
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 applicability to 
petitioners’ act of going on the premises with permission 
and later failing to leave when directed.

But by judicial interpretation “enter” was held synony­
mous 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 legis­
lative 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 failure 
specifically to define a refusal to leave as an offense. As 
this Court said in Lanzetta v. New Jersey, supra:

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



45

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.82

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

It must be noted, too, that petitioners’ request for service 
was part of a protest against racial discrimination and as 52

52 See for example the following state statutes which do effec­
tively differentiate between “entry” after being forbidden and 
“remaining” after being forbidden. The wording of the statutes 
varies but all of them effectively distinguish between 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 sepa­
rately for both situations: Code of Ala., Title 14, §426; Compiled 
Laws of Alaska Ann. 1958, Cum. Supp. Vol. I ll ,  §65-5-112; Arkan­
sas 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. 
i954, Vol. 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.



46

such an exercise of free speech. This Court has in many 
instances held a statute more amenable to an attack of 
vagueness where its construction creates a danger of en­
croachment on the right of free speech and threatens to 
deter its legitimate exercise. Saia v. New York, 334 U. S. 
558; Cantwell v. Connecticut, 310 U. S. 296; Kunz v. New 
York, 340 U. S. 290. To avoid an undue restriction on free 
speech, where it is an incident of conduct, the statute must 
clearly define the prohibited activity; consequently, the 
scope of construction must have less latitude. An interpre­
tation completely unpredictable by the plain language of 
the statute, which is used to bring petitioners’ protest with­
in the ambit of prohibited conduct cannot but have such an 
“inhibiting effect on speech.” Smith v. California, 361 U. S. 
147,151.

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 stand­
ard of fairness expressed by the rule against expansive 
construction of criminal laws and embodied in the due 
process clause of the Fourteenth Amendment.



47

III.
The Decision Below Conflicts With Decisions of This 

Court Securing the Fourteenth Amendment Right to 
Freedom of Expression.

Petitioners were engaged in the exercise of free expres­
sion 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 concerning terms and 
conditions of service so long as no disorder or obstruction 
of business occurs.

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, supra, pp. 15-16, there was no 
invasion of privacy involved in this case, since the lunch 
counter was an integral part of commercial property 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,



48

324 U. S. 793, the Court upheld the validity of the National 
Labor Relations 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.53

In Martin v. Strutliers, 319 U. S. 141, this Court held 
unconstitutional an ordinance which made unlawful ringing 
doorbells of residences 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 River” 
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-

53 See also N .L .R .B . v. A m e r ic a n  P e a r l  B u t to n  C o., 149 F. 2d 258 
(8th Cir., 1945) ; U n ite d  S te e lw o r k e r s  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 owm time. If Section 7 activities are to be prohibited, 
something more than mere ownership and control must be shown.”) 

Compare N .L .R .B . v. F a n s te e l  M e ta l C o r y ., 306 U. S. 240, 252 
(employees seized plant; discharge held valid: “high-handed pro­
ceeding without shadow of legal right”).



49

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 U. 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. Rel. Ref. Man. 
2357, 2361 (1959), has on Fourteenth Amendment and 
Labor Management Relations Act grounds, decided that 
pickets may patrol property within a privately owned shop­
ping center. See also People v. Barisi, 193 Misc. 934, 86 
1ST. 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” ; 
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 bv 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.



50

In the circumstances of this case, the only apparent state 
interest being preserved was that of maintaining the man­
agement’s right to exclude Negroes from the lunch counter. 
The management itself sought nothing more. But 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.



51

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgments below should be reversed.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

L. C. B erry, J r.
W illiam A. Marsh, J r.
F . B. M cK issick

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

M. H ugh T hompson

Durham, North Carolina

Attorneys for Petitioners

D errick B ell

Leroy Clark

W illiam T. Coleman, J r.
Michael Meltsner 
W illiam R. Ming, J r.
Louis H. P ollak 
J oseph L. R auh 
Herbert 0 .  R eid 

Of Counsel









t















3 8



Supreme Court of the United States
October Term, 1962 

No. 11

JOHN THOMAS AVENT, et al.f
Petitioners,

vs.
STATE OF NORTH CAROLINA

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF NORTH CAROLINA

BRIEF OF THE STATE OF NORTH CAROLINA

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





INDEX
Opinion B elow --------------------------------------------------------------------  1
Jurisdiction ----------------------------------------------------------------------- 1
Constitutional and Statutory Provisions Involved ------------------- 2
Questions Presented------------------------------------------------------------ 2
Proceedings in the North Carolina Courts .....................................  3
North Carolina’s Statement of the Case---------------------    4
Argument......................................................................   6

I. THE GENERAL TRESPASS STATUTE OF
NORTH CAROLINA ...........................................................  6

II. CONSTITUTIONAL AND STATUTORY
SEGREGATION IN NORTH CAROLINA ......................  10

III. THE FOURTEENTH AMENDMENT DOES NOT 
PROHIBIT THE OPERATOR OF A PRIVATE 
ENTERPRISE FROM SELECTING THE PAT­
RONS, CUSTOMERS OR CLIENTELE HE WILL 
SERVE NOR DOES IT PROHIBIT HIM FROM 
MAKING SUCH SELECTION ON THE BASIS
OF COLOR IF  HE SO DESIRES .................................... 14

A. The Argument of Custom and Usage ....................... 18
B. Invoking the Aid of the Court in Private

Discrimination ...............................................................  21
C. The Attaining of a License from the State to

Operate a R estauran t.................................................... 27
D. The Operation of a Restaurant is Not a Business

Affected with Public Interest or Public Service___  29
E. The Case of Shelley v. Kraemer is Not

Applicable to this Situation .......................................  34

IV. THE GENERAL TRESPASS STATUTE OF NORTH 
CAROLINA DOES NOT VIOLATE THE FOUR­
TEENTH AMENDMENT BECAUSE OF VAGUE­
NESS OR FAILURE TO FURNISH AN ASCER­
TAINABLE STANDARD OF CONDUCT ........................  36

V. THE NORTH CAROLINA STATUTE AS ADMINIS­
TERED DOES NOT VIOLATE FREEDOM OF 
SPEECH AS GUARANTEED BY THE FOUR­
TEENTH AMENDMENT....................................................  44 VI.

VI. CONCLUSION ......................................................................  47

1



TABLE OF CASES
Alpaugh v. Wolverton, 184 Va. 943 ------------------------------------ 15,17
9 ALR 379 .............................................................................. - ............... 22
Armstrong v. Armstrong, 230 N.C. 201, 52 S.E. 2d 326 ...............  7
Armwood v. Francis, 9 Utah 2d 147, 340 P. 2d 8 8 ............................  15

Beauharnais v. Illinois, 343 U.S. 250, 96 L. ed. 919, 72 S. Ct. 725 .... 43
Boman v. Birmingham Transit Co., 5 Cir., 280 F. 2d 531 ................ 25
Booker v. Grand Rapids Medical College, 156 Mich. 95, 120 N.W.

589, 24 L.R.A., N.S., 447 ..................................................................  17
Boyce Motor Lines v. United States, 342 U.S. 337, 72 S. Ct. 329,

96 L. ed. 367 ....................................................................................  43
Boynton v. Virginia, 364 U.S. 454, 5 L. ed. 2d 206, 81 S. Ct. 182........  24
Brame v. Clark, 148 N.C. 364, 62 S.E. 418 .........................................  7
Breard v. Alexandria, 341 U.S. 622, 95 L. ed. 1233, 71 S. Ct. 920 ....25,46 
Brookside-Pratt Min. Co. v. Booth, 211 Ala. 268, 100 So. 240, 33

A.L.R. 421.......................................................................................... 23
Browder v. Gayle, 142 F. Supp. 707, aff’d 352 U.S. 903, 1 L. ed.

2d 114, 77 S. Ct. 145 .................................................................15,25
Brown v. Meyer Sanitary Milk Co., 150 Kan. 931, 96 P. 2d 651 ....... 17
Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. ed. 682 ....... 48
Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. ed.

2d 45, 81 S. Ct. 56 ...........................................................................  25

Carlson v. California, 310 U.S. 106, 84 L. ed. 1104, 60 S. Ct. 746 ....... 47
Carter v. Texas, 177 U.S. 442, 44 L. ed. 839, 20 S. Ct. 687 .................  21
Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. ed. 1031,

62 S. Ct. 766 ......................................................................................  47
City of Greensboro v. Simkins, 4 Cir., 246 F. 2d 425 .......................  26
Civil Rights Cases, 1883, 109 U.S. 3, 3 S. Ct. 18, 27 L. ed.

835 ..........................................................................................16, 48, 49
Cole v. Arkansas, 338 U.S. 345, 94 L. ed. 155, 70 S. Ct. 172.............. 43
Coleman v. Middlestaff, 147 Cal. App. 2d Supp. 833, 305 P. 2d 1020.... 17
Constantian v. Anson County, 244 N.C. 221, 93 S.E. 2d 163.............. 13
Corrigan v. Buckley, 271 U.S. 323, 46 Sup. Ct. 521, 70 L. ed. 969 ....... 49

Dawson v. Baltimore, 4 Cir., 220 F. 2d 386, aff’d. 350 U.S. 877 ......  26
De La Ysla v. Publix Theatres Corp., 82 Utah 598, 26 P. 2d 818..... 17
Derrington v. Plummer, 5 Cir., 240 F. 2d 922 .................................. 26
Drews v. Maryland, 224 Md. 186, 167 A. 2d 341 ..............................  15

Ex Parte Virginia, 100 U.S. 339, 25 L. ed. 676 ................................  49

11



Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 71 L. ed. 893,
52 A.L.R. 163, 47 Sup. Ct. Rep. 506 ..............................................  30

Fleming v. S. C. Elec. & Gas Co., 4 Cir., 224 F. 2d 752 .....................  25
Fletcher v. Coney Island, 100 Ohio App. 259, 136 N.E. 2d 344 ........  17
Fox v. Washington, 236 U.S. 273, 35 S. Ct. 383, 59 L. ed. 573.......42,47
Frost v. Corp. Comm., 278 U.S. 515, 519-521, 73 L. ed. 483, 487,

488, 49 S. Ct. 235 .................................... - ......................................  31

German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 58 L. ed. 1011,
L.R.A. 1915(c), 1189, 34 Sup. Ct. Rep. 612 .................................. 33

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684,
93 L. ed. 834 ....................................................................................  46

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. ed. 1138........  46
Goff v. Savage, 122 Wash. 194, 210 P. 374 ..........................................  17
Goring v. United States, 312 U.S. 19, 61 S. Ct. 429, 85 L. ed. 488 ....... 42
Griffin v. Collins, 187 F. Supp. 149.......................................................  15
Griffin v. Maryland, 225 Md. 442, 171 A. 2d 717 ...............................  15

Henderson v. Trailway Bus Co., 194 F. Supp. 423 .........................15,16
Horn v. Illinois Cent. R. Co., 327 111. App. 498, 64 N.E. 2d 574 ....... 17
Hughes v. Superior Court, 339 U.S. 460, ante., 985, 70 S. Ct. 718 .... 44

International Brotherhood v. Hanke, 339 U.S. 470, 70 S. Ct. 773,
94 L. ed. 995 ..................................................................................... 44

Kovacs v. Cooper, 336 U.S. 77, 69 S. Ct. 448, 93 L. ed. 513.................. 45

Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804 .......................................  7
Lynch v. United States, 5 Cir., 189 F. 2d 902, 1 L.R.A. 1188..........  21

Madden v. Queens Co. Jockey Club, 269 N.Y. 249, 72 N.E. 2d 697,
1 A.L.R. 2d 1160 ........................................................................ 17,28

Marsh v. Alabama, Title 14, Sec. 426 ................................................  25
Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. ed. 1313.......6, 24
Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S.

287, 61 S. Ct. 552, 85 L. ed. 836 ........................................................ 46
Miller v. Strahl, 239 U.S. 426, 434, 60 L. ed. 364, 368, 36 Sup. Ct.

Rep. 147 ........................................................................................ 41,43
Munn v. Illinois, 94 U.S. 113, 24 L. ed. 77 ..................................... 29, 30
Myers v. Memphis, 135 Tenn. 263, ann. cas. 1918c, 856 (272) ..........  26

Nance v. Mayflower Restaurant, 106 Utah 517, 150 P. 2d 773 ........  15
Nash v. United States, 229 U.S. 373, 377, 57 L. ed. 1232, 1235, 33

Sup. Ct. Rep. 780 ............................................................................ 41

111



New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76
L. ed. 747 .......................................................................................... 31

Omaechevarria v. Idaho, 246 U.S. 343, 38 S. Ct. 323, 62 L. ed. 763 ...... 40

Powell v. Utz, 87 F. Supp. 811 .............................................................  15

Randolph v. Commonwealth, 202 Va. 661, 119 S.E. 2d 817.............. 15
Ribnik v. McBride, 277 U.S. 350, 72 L. ed. 913, 56 A.L.R. 1327,

48 Sup. Ct. Rep. 545 .......................................................................... 30
Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. ed.

2d 1498 ...............................................................................................  43

Schenck v. United States, 249 U.S. 47, 52, 63 L. ed. 470, 473,
39 S. Ct. 247 ..................................................................................... 45

Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89
L. ed. 1495 ..................................................................................37,40

Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 842,
92 L. ed. 1161 ............................................................. 16, 18, 24, 34, 35

Slack v. Atlantic White Tower System, Inc., 181 F. Supp. 124,
aff’d. per curiam 4 Cir., 284 F. 2d 746 ................................ 15, 16, 28

State v. Avent, et als., 253 N.C. 580, 118 S.E. 2d 47 ................. 1, 4, 14
State v. Baker, 231 N.C. 136, 56 S.E. 2d 424 .........................................  8
State v. Buckner, 61 N.C. 558 ...............................................................  9
State v. Clyburn, 247 N.C. 455, 101 S.E. 2d 295 .......................7, 15, 36
State v. Cooke, 246 N.C. 518, 98 S.E. 2d 885 .......................................  7
State v. Cooke, 248 N.C. 485, 103 S.E. 2d 846 ..................................  36
State v. Crook, 133 N.C. 672, 45 S.E. 564 ...........................................  9
State v. Crosset, 81 N.C. 579 ................................................................. 8
State v. Davenport, 156 N.C. 596, 72 S.E. 7 .......................................  9
State v. Durham, 120 N.C. 546, 28 S.E. 22 .........................................  8
State v. Edwards, 86 Me. 102, 25 L.R.A. 504, 41 Am. St. Rep.

528, 29 Atl. 947 ...............................................................................  32
State v. Elks, 125 N.C. 603, 34 S.E. 109 ............................................... 9
State v. Faggart, 170 N.C. 737, 87 S.E. 31 .........................................  8
State v. Fisher, 109 N.C. 817, 13 S.E. 878 ...........................................  8
State v. Fleming, 194 N.C. 42, 138 S.E. 342 .......................................  8
State v. Goodson, 235 N.C. 177, 69 S.E. 2d 242 .............................. 7, 8
State v. Gray, 109 N.C. 790 ................................................................... 8
State v. Robbins, 123 N.C. 730 .............................................................  8
State v. Talbot, 97 N.C. 494 ................................................................. 8
State v. Webster, 121 N.C. 586 .............................................................  8

IV



State v. Wells, 142 N.C. 590, 55 S.E. 210 --------------- ------------------- 8
State v. Wilson, 94 N.C. 840 ............................................................... 7

Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 256, 60 L. ed. 94,
36 S. Ct. 583 ...................... - ..................... - ...................... 18, 23, 32, 33

Terrell Wells Swimming Pool v. Rodriguez Tex. Civ. App.,
182 S.E. 2d 824 .................................................................................  17

Thornhill v. Alabama, 310 U.S. 88, 84 L. ed. 1093, 60 S. Ct. 736 ....46, 47 
Tozer v. United States, 4 Inters. Com. Rep., 245, 52 Fed. 917, 919.... 42 
Tyson & Bro.-United Theatre Ticket Offices v. Banton, 271 U.S.

418, 71 L. ed. 724, 58 A.L.R. 1236, 47 Sup. Ct. Rep. 426 .......30,34

United States v. Cruikshank, 92 U.S. 542, 23 L. ed. 588 ..............24, 49
United States v. Harris, 106 U.S. 629, 27 L. ed. 920, 1 S. Ct. 601....... 24
United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. ed. 1877 .... 43 
United States v. Ragan, 314 U.S. 513, 62 S. Ct. 374, 86 L. ed. 383 .... 42 
United States v. Trans-Missouri Freight Asso., 166 U.S. 290,

320, 41 L. ed. 1007, 1020, 17 Sup. Ct. Rep. 540 ......................... 33
United States v. Wurzbach, 280 U.S. 396, 50 S. Ct. 167, 74

L. ed. 508 ..........................................................................................  43

Valle v. Stengal, 3 Cir., 176 F. 2d 697 ................................................  21
Virginia v. Rives, 100 U.S. 313, 25 L. ed. 667 .................................... 49

Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. ed. 1095....... 42
Williams v. Howard Johnson’s Restaurant, 4 Cir., 268 F. 2d 845....15, 27 
Williams v. Standard Oil Co., 278 U.S. 235, 49 S. Ct. 115, 73

L. ed. 287 ..........................................................................................  29
Williams v. United States, 341 U.S. 97, 71 S. Ct. 576, 95 L. ed. 774.... 40 
Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522,

67 L. ed. 1103, 27 A.L.R. 1280, 43 S. Ct. Rep. 630 ..................... 30, 32

Younger v. Judah, 111 Mo. 303, 19 S.W. 1109 .................................. 17
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct.

863, 96 L. ed. 1153 .......................................................................... 34

CONSTITUTIONAL PROVISIONS AND STATUTES
Constitution of North Carolina,

Article I, secs. 3 and 5 ................................................................... 13
Constitution of the United States,

Article VI ........................................................................................  13
Fourteenth Amendment .........................2, 3, 15, 16, 22, 35, 36, 41

v



Federal Statutes:
14 USCA 1983 ...............................    37
18 USC A 201, 202 .............................................................................  37
18 USC A 242 .................................................................................19,40
18 USCA 1952 ................................................................................... 37
28 USCA 1257(3) .............................................................................  2
42 USC 1982 ....................................................................................  18
42 USC 1983 ...................................................................................18.19

Public Laws of 1866, Chapter 60 .........................................................  6
5 Richard II ..........................................................................................7,37

State Statutes:
Sec. 35-26 (1950) Code of V irginia................ ............................16,27
Sec. 14-126 of General Statutes of North Carolina..............7, 8, 37
Sec. 14-134 of General Statutes of

North Carolina .............................................. 2, 3, 6, 7, 8, 23, 36
Sec. 58-267 of General Statutes of North Carolina ....................  12
Sec. 90-212 of General Statutes of North C arolina....................  11
Sec. 127-6 of General Statutes of North Carolina.....................  10

GENERAL TEXT WRITERS
11 Am. Jur. 335 ......................................................................................  26
50 Am. Jur. 486 ......................................................................................  38
82 C.J.S. 108 ........................................................................................... 38
5 R.C.L. 586(10) ...................................................................................  27
6 R.C.L. 268, 269 (sec. 253) note 10 ...................................................... 27
6 R.C.L. 269, 270 (sec. 254) notes 16, 17, 18 .................................... 27

LAW REVIEW ARTICLES
44 California Law Review 733 .............................................................  35
40 Cornell Law Quarterly 195...............................................................  43
62 Harvard Law Review 77 ................................................................  44
21 Michigan Law Review 831 .............................................................  43
30 New York Univ. Law Review 150, 156 .......................................  19
37 North Carolina Law Review 71 ....................................................  9
39 North Carolina Law Review 121....................................................  9
109 University of Pennsylvania Law Review 67 ............................  44
46 Virginia Law Review 128................................................................. 22
30 Yale Law Journal 437 ........................................................................  43

VI



Supreme Court of the United States
October Term, 1962

No. 11

JOHN THOMAS AVENT, et al.,
Petitioners,

vs.
STATE OF NORTH CAROLINA

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF NORTH CAROLINA

BRIEF OF THE STATE OF NORTH CAROLINA

OPINION BELOW

The opinion of the Supreme Court of North Carolina is 
reported as STATE v. AVENT, STREETER, COLEMAN, 
BROWN, PHILLIPS and NELSON, 253 N. C. 580, 118 S. E. 
2d 47. The opinion of the Supreme Court of North Carolina 
was filed on January 20, 1961. The opinion also appears 
in the transcript of record, hereafter referred to as “R”, on 
p. 73. Judgment of the Superior Court of Durham County, 
in which the petitioners were originally convicted, appears 
on R. 15 and is not otherwise officially reported but is re­
corded in the minutes of the Clerk of the Superior Court 
of Durham County.

JURISDICTION

The petitioners obtained an extension of time in which



2

to file petition for certiorari and filed their petition on May 
4, 1961, within the time allowed, and on June 25, 1962, this 
Court granted a writ of certiorari, as appears on R. 92. The 
petitioners invoked the jurisdiction of this Court upon an 
allegation that they have been denied rights guaranteed by 
the Fourteenth Amendment and as provided by 28 USCA 
1257(3).

North Carolina denies that there is any substantial federal 
question presented and further denies that petitioners were 
deprived of any rights, privileges or immunities secured by 
the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS IN­
VOLVED

(a) The petitioners invoke a portion of the Fourteenth 
Amendment of the Constitution of the United States as quot­
ed below:

“Sec. 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citi­
zens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States; nor shall any state deprive any per­
son of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction the 
equal protection of the laws.”

(b) The petitioners were convicted under Sec. 14-134 of 
the General Statutes of North Carolina, which is as follows:

“Sec. 14-134. T re sp a ss  on  la n d  a f te r  b e in g  fo r b id d e n .— 
If any person after being forbidden to do so, shall go or 
enter upon the lands of another, without a license there­
for, he shall be guilty of a misdemeanor, and on convic­
tion, shall be fined not exceeding fifty dollars, or im­
prisoned not more than thirty days.”

QUESTIONS PRESENTED

The State of North Carolina submits the following as the 
questions presented in this case:



3

(1) Does Section 1 of the Fourteenth Amendment prohibit 
the operator of a private enterprise from selecting the pa­
trons, customers or clientele he will serve, and does it pro­
hibit such operator of a private enterprise from making 
such selection based on color if he so desires?

(2) Do the provisions of Section 1 of the Fourteenth 
Amendment prohibit the Courts of North Carolina from 
applying the State’s general trespass statute to the petition­
ers, who are both colored and white, upon the request of 
a proprietor or private owner of a restaurant or luncheonette?

(3) Is the operation of a mercantile establishment, which 
has a luncheonette department, a business affected with the 
public interest so that the owner and operator must serve 
without discrimination all who seek service?

(4) Is Section 14-134 of the General Statutes of North 
Carolina void in that it is vague and indefinite, and, there­
fore, does not set forth an ascertainable standard of conduct?

(5) Under the circumstances of this case were the peti­
tioners denied freedom of speech in violation of Section 1 
of the Fourteenth Amendment?

PROCEEDINGS IN THE NORTH CAROLINA COURTS

Petitioners were indicted in the Superior Court of Durham 
County on separate bills of indictment (R. 1) for a violation 
of the general criminal trespass statute (Sec. 14-134, General 
Statutes of North Carolina). Briefly, it is charged that 
petitioners unlawfully entered upon and refused to leave 
the premises of S. H. Kress & Company after being ordered 
to do so by the agent and manager. The indictments were all 
consolidated for trial (R. 15) and on July 1, 1960, the jury 
returned a verdict of guilty as to each petitioner. The trial 
judge pronounced judgment (R. 16) in the various cases, 
and the petitioners appealed to the Supreme Court of North 
Carolina.



4

After briefs had been filed and oral arguments the Su­
preme Court of North Carolina filed its opinion on January 
20, 1961, in which it affirmed the judgments of the lower 
court (STATE v. AVENT, STREETER, COLEMAN, 
BROWN, PHILLIPS and NELSON, 253 N. C. 580, 118 S. E. 
2d 47). North Carolina does not allow petitions to rehear 
in criminal cases. The petitioners filed application for cer­
tiorari on May 4, 1961, and this Court granted Certiorari on 
June 25, 1962.

NORTH CAROLINA’S STATEMENT OF THE CASE

The State of North Carolina contends that the evidence 
in these cases supports a statement of facts, as follows:

1. Five of the petitioners (Streeter, Phillips, Callis Napolis 
Brown, Shirley Mae Brown and Avent) are persons of the 
colored race, and two of the petitioners (Joan Harris Nelson 
and Frank McGill Coleman) are persons of the white race.

(2) Joan Harris Nelson (Trumpower) gave a Washington 
address of a Negro friend at Howard University. She is a 
member of the white race and her husband is part white 
and part Indian (R. 42, 43). On May 6, 1960, she was a 
student at Duke University and at the time of the trial she 
was living in Alexandria, Virginia.

(3) Frank McGill Coleman is a member of the white race. 
He was born in Vicksburg, Mississippi, now lives in Pitts­
burgh, and at the time of trial was a student at Duke Uni­
versity (R. 45, 46).

(4) The remaining petitioners are colored persons, live 
in the State of North Carolina, and at the time of trial were 
attending North Carolina College at Durham. (R. 36, 39, 43, 
47, 48).

(5) The petitioners had previously been engaged in picket­
ing the Durham Store of S. H. Kress & Company and in 
urging a boycott of the store unless their demands for lunch­
eon service were met (R. 21, 36, 41, 43, 46, 48, 49).



5

(6) It is clear from the evidence that all these demon­
strations and sit-ins were the result of concerted action and 
previous agreements (see evidence of Callis Napolis Brown 
R. 44, 45). The organization had counsel and had consulted 
counsel about these matters (R. 37). It would seem also 
that the matter of furnishing bond had already been con­
sidered and was left to the attorneys (R. 38). This demon­
stration took place on May 6, 1960, but attorneys had been 
consulted as early as February, 1960, (R. 38). It is also clear 
from the evidence that a meeting had been held on the night 
before May 6, 1960, strategy had been planned, and it was 
agreed to make a purchase in some other part of the store 
before going to the lunch counter (R. 37, 40, 44, 45, 48, 49). 
The object, therefore, was to create a test case in the Courts.

(7) S. H. Kress & Company operates a store on West Main 
Street in the City of Durham (R. 20). The Company has 
two selling floors and three stockroom floors (R. 21). On 
the first floor the Company provides a stand-up counter 
where food is served and at this counter both white and 
colored people are served whether they accompany each 
other or not (R. 22, 40). There is a luncheonette department 
at the rear of the basement floor (R. 21). This department 
had signs posted saying that the luncheonette was open for 
the purpose of serving invited guests and employees only. 
There were iron railings separating this department from 
the other departments, and on the date in question there 
were chained entrances (R. 21). Mr. W. K. Boger, Manager 
of the store in Durham had been with the Company for 30 
years (R. 24). He gave evidence that there were two reasons 
for not serving colored people in the luncheonette: (a) The 
store management followed the customs of the community, 
and (b) that it was also in the interest of public safety (R. 
22) .

(8) While some portions of the evidence are conflicting, 
the State of North Carolina contends that the evidence sup­
ports the version of events hereinatfer stated. The petition­
ers, and others as they previously planned, went to the first 
floor and made purchases, keeping their receipts and the



6

articles which were later offered in evidence (R. 35, 37, 39, 
40, 43, 45, 46, 47, 48, 49). There were some 35 to 40 persons 
involved in this demonstration but they did not all go to the 
luncheonette at the same time (R. 37, 49). The Manager (W. 
K. Boger) testified that he asked these petitioners not to be 
seated and told them that the luncheonette department was 
open only to employees and invited guests. After the 
petitioners seated themselves the Manager asked them to 
leave and they refused to leave until they were served. The 
Manager called an officer of the Police Department and this 
officer asked them to leave and they would not. The officer 
then arrested petitioners on a charge of trespass (R. 21). The 
evidence of the police officer is to the same effect except in 
his narrative he says that when he arrived he found Brown 
seated at the lunch counter, arrested him and started back 
to the station but before he got to the street someone shout­
ed: “You had better go back.” He went back downstairs and 
there were 30 or 40 seated; after they were told to leave 
(these petitioners) he made the arrests (R. 26). The other 
officer testified (R. 25) that he asked the petitioners to leave 
and that he heard Mr. Boger ask them to leave (R. 25).

ARGUMENT

THE GENERAL TRESPASS STATUTE OF NORTH CARO­
LINA

Along with many states North Carolina has a general tres­
pass statute which has been a part of the State’s code for 
almost a century. This statute was first enacted in 1866 
(Chap. 60, Public Laws of 1866) and now appears as Section 
14-134 of the General Statutes of North Carolina. In 1943 this 
Court made reference to the fact that general trespass 
statutes existed in at least 30 states, and that similar laws of 
narrower scope were on the books of at least 12 states (MAR­
TIN v. STRUTHERS, 319 U. S. 141, 63 S. Ct. 862, 87 L. ed. 
1313). Closely related is another statute on forcible entry and 
detainer, which reads:



7

“Sec. 14-126. Forcible entry and detainer.—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 misde­
meanor.”

The above statute is in substantially the language of the 
English statute (5 Ric. II, c. 8) and came to this State from 
England, and it is believed that the concept in the general 
trespass statute is expressed in the Common Law. These 
statutes, therefore, existed long before colored people even 
dreamed of taking possession of a luncheonette by means of 
a sit-in demonstration.

In explaining these statutes the Supreme Court of North 
Carolina said (STATE v. CLYBURN, 247 N. C. 455, 101 S. E. 
2d 295):

“Our statutes, G. S. 14-126 and 134, impose criminal 
penalties for interfering with the possession or right of 
possession of real estate privately held. These statutes 
place no limitation on the right of the person in posses­
sion to object to a disturbance of his actual or construc­
tive possession. The possessor may accept or reject 
whomsoever he pleases and for whatsoever whim suits 
his fancy. When that possession is wrongfully disturbed 
it is a misdemeanor. The extent of punishment is de­
pendent upon the character of the possession, 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 Supreme Court of North Carolina as early as 1885 
described a trespasser, and has done so in many cases before 
these petitioners were convicted (STATE v. COOKE, 246 
N. C. 518, 98 S. E. 2d 885; STATE v. GOODSON, 235 N. C. 
177, 69 S. E. 2d 242; ARMSTRONG v. ARMSTRONG, 230 
N. C. 201, 52 S. E. 2d 326; LEE v. STEWART, 218 N. C. 287, 
10 S. E. 2d 804; BRAME v. CLARK, 148 N. C. 364, 62 S. E. 
418; STATE v. WILSON, 94 N. C. 840). The Supreme Court 
of North Carolina also explained the use of the word “enter” 
which appears in the statute (State v. Clyburn, Supra):



8

“What is the meaning of the word ‘enter’ as used in the 
statute defining criminal trespass? The word is used m 
G. S. 14-126 as well as G. S. 14-134. One statute relates 
to an entry with force; the other to a peaceful entry. We 
have repeatedly held, in applying G. S. 14-126, that one 
who remained after being directed to leave is guilty of a 
wrongful entry even though the original entrance was 
peaceful and authorized. S. v. GOODSON, supra, S. v. 
FLEMING, 194 N. C. 42, 138 S. E. 342; S. v. ROBBINS, 
123 N. C. 730; S. v. WEBSTER, 121 N. C. 586; S. v. 
GRAY, 109 N. C. 790; S. v. TALBOT, 97 N. C. 494. The 
word ‘entry’ as used in each of these statutes is synony­
mous with the word ‘trespass’. It means an occupancy or 
possession contrary to the wishes and in derogation of 
the rights of the person having actual or constructive 
possession. Any other interpretation of the word would 
improperly restrict clear legislative intent.”

The essential rights and duties under the trespass statute 
(G. S. 14-134) are explained in STATE v. BAKER, 231 N. C. 
136, 56 S. E. 2d 424. Entry upon the land of another under a 
bon a  fid e  claim of right is not a criminal offense (STATE v. 
CROSSET, 81 N. C. 579), but a mere belief of a claim of right 
is not sufficient for there must be proof of title or evidence of 
a reasonable belief of the existence of the right of entry 
(STATE v. FISHER, 109 N. C. 817, 13 S. E. 878; STATE v. 
DURHAM, 120 N. C. 546, 28 S. E. 22). A bon a  f id e  claim of 
right must be passed upon by a jury (STATE v. WELLS, 142 
N. C. 590, 55 S. E. 210) but a claim of right is not a mere 
abstraction since there must be evidence of such a claim or 
facts giving rise to a reasonable and bon a  f id e  claim (STATE 
v. FAGGART, 170 N. C. 737, 87 S. E. 31).

An assertion by counsel for the plaintiffs to the effect that 
these trespass statutes have been administered solely or for 
the most part against colored persons is utterly untrue, and a 
survey of the decisions of the Supreme Court of North Caro­
lina will support our view. In fact, it is interesting to note 
that in 1899 six white men entered in and upon a small tract 
of land containing 20 acres that was owned by an old colored 
woman and over her protest cut and carried off the timber 
on her land. The white men were convicted for this conduct 
for violating the statute on forcible trespass, and this con­



9

viction was sustained by the Supreme Court of North Caro­
lina (STATE v. ELKS, 125 N. C. 603, 34 S. E. 109).

The owner of property under the laws of North Carolina 
has a right to use sufficient force to remove a trespasser from 
his premises. In 1903, in the case of STATE v. CROOK, 133 
N. C. 672, 45 S. E. 564, the Supreme Court of North Carolina 
corrected the lower court on an instruction on this point, and 
said:

“We think the true rule which should have controlled 
the conduct of Frank upon the evidence on the point was 
that he had a right in the first place to direct Jeff to 
leave his premises; that in case of refusal he might have 
laid his hands on him gently, for the purpose of re­
moving him from his premises; and if that course did 
not bring about the desired result, then he might have 
used sufficient force under all the circumstances to put 
him off. The law would not authorize one to use exces­
sive force in removing a trespasser from one’s premises, 
but the jury should not weigh in golden scales the 
amount of force used for such purpose.”

The law of trespass as interpreted by the North Carolina 
Supreme Court has said that even though a person has a 
right to pass along the way, and that the entry, if peaceable, 
is not even a civil trespass, yet, as soon as such person or 
persons violate the possession of the owner, create disturb­
ance or commit violence, they become trespassers ab  in itio  
(STATE v. BUCKNER, 61 N. C. 558).

The Court will find the subject of trespass discussed in 37 
North Carolina Law Review 71, and the Court will find the 
history of trespass statutes in North Carolina in 39 N. C. Law 
Review 121, as well as STATE v. DAVENPORT, 156 N. C. 
596, 72 S. E. 7. We have discussed the trespass laws to some 
extent, and we have shown from the cases that they have 
been applied in favor of the colored people, against colored 
people, and an examination of the cases will show that they 
have been applied in favor of white people and against white 
people.



10

II

CONSTITUTIONAL AND STATUTORY SEGREGATION 
IN NORTH CAROLINA

In order to create prejudice against the State of North 
Carolina before this Court, counsel for petitioners has re­
ferred to certain segregation laws, some of which are on the 
statute books of the State. We think that some answer should 
be made to these charges.

First of all, it is stated that the various bills of indictment 
(R. 1) are marked “CM” or “CF”, which designate the de­
fendant in the bill as colored male or colored female. It will 
also be seen, for example (R. 5), that the white persons in­
dicted are designated as “WM” or “WF”, which represents 
white male or white female. This is standard practice on bills 
of indictment for the reason that the State keeps criminal 
statistics, and it has a right to make studies to see whether 
or not certain patterns of crime develop along racial lines. 
There are certain tribes of Indians in the State and people 
of other racial descent, and we see no constitutional reason 
why we should not keep such records. We are informed that 
certain colored organizations tried to prohibit all racial de­
signations in the Bureau of Census in the Department of 
Commerce but that the Census Bureau continues to compile 
statistics and make enumerations of population on a racial 
basis. After all, some power created colored people, and this 
is a fact which would still exist even though there was a 
judicial decree to the contrary.

It is true that G. S. 127-6, as to the North Carolina National 
Guard, provides for white troops and colored troops but to 
date scarcely any colored persons have made any application 
for enlistment in the National Guard.

It is said that the statutes as to segregation in our schools 
have been repealed but that school segregation continues to 
be enforced by other means. The charge that without a single 
exception school boards have made initial assignments of



11

white pupils to previously white schools and Negro children 
to previously Negro schools is not true. The Charlotte School 
Board of its own motion assigned some 40 to 50 Negro 
children to white schools, and some assignments have been 
made in Raleigh and Winston-Salem by the school boards 
upon their own motions. We have tried to change a way of 
life which previously existed without arousing any more 
resentment than possible. While North Carolina was asked 
to file a brief a m ic u s  cu r ia e  in the second B r o w n  C ase, 
neither the State nor its units of government have yet been 
brought before this Court on public school matters.

As to mental institutions, orphanages, schools for the blind 
and deaf and training schools, the State recognizes that 
where State action is concerned there can be no discrimina­
tion in the use of facilities. Recently a suit was brought in the 
Federal District Court to compel the admission of a colored 
child into Murdoch School for Mentally Deficient Children. 
The State answered and admitted the right of the child to be 
admitted to the State Institution but alleged that the child 
would have to take its turn on the waiting list, and the 
parents of the child had been given this information prior to 
the suit.

We do keep separate tax books for white, Negro, Indian 
and corporate taxpayers as we have found that this greatly 
facilitates the collection of delinquent taxes. We are not 
aware that it is a violation of the Constitution to show the 
true race of a person on official records. For that matter our 
Bureau of Vital Statistics keeps its birth certificates on a 
racial basis as to all races. There are racial distinctions in 
cemeteries to which situation as far as we know no person 
has raised any question. There are separate funeral homes 
but petitioners do not actually point to any statute which 
prohibits a white person from using the services of a Negro 
funeral home or the reverse. Petitioners to support this as­
sertion cite G. S. 90-212, which deals with the distribution of 
bodies to the various funeral homes where prisoners die and 
their bodies are not claimed by relatives.



12

The Charlotte ordinance which sets the area within which 
Negro police have authority has no doubt been found to be 
the best way of utilizing such police services. We commend 
counsel for petitioners for saying that we do not require 
segregation in State Parks.

Referring to the statutes as to transportation, waiting 
rooms, city buses, and, in fact, in all matters connected with 
transportation, segregation has been abolished for some time. 
Both races use city buses without any seating arrangements. 
Both races use the same waiting room in bus stations, 
although the former colored waiting room in some stations 
is still left open for those colored people who still have some 
pride of race and wish to be with each other. As a matter of 
fact, colored people have their choice of waiting rooms; there 
is no segregation in either intrastate or interstate transporta­
tion.

There are separate rest rooms for the races in the operation 
of private business, and it is true that in the inspection of 
cafes and restaurants the grade forms do contain criteria as 
to the adequacy of rest rooms for each sex and race. We find 
that we have more peace and get along better on this basis.

There is still a statute on the books (G. S. 58-267) which 
prohibits fraternal orders from doing business in the State if 
white and colored persons are members of the same lodge.

The Constitution and statutes of North Carolina do still 
prohibit intermarriage of white persons to Negroes to the 
third generation inclusive. Just as Mr. Justice Holmes 
thought that three generations of mentally deficient people 
were enough we still think that a hybrid race will not im­
prove either race.

We are not familiar with all of the city ordinances that 
remain on the books as a carry-over from the days of absolute 
segregation. We are a Southern State, and we lived formerly 
in that manner; these vestiges will not disappear all at once. 
It is thought that there are even some segregation practices 
in northern states.



13

Wherever there has been State action or an exertion of 
power by governmental units and this has been brought be­
fore the Supreme Court of North Carolina that Court has al­
ways recognized the Constitution of the United States as the 
supreme law of the land. In CONSTANTIAN v. ANSON 
COUNTY, 244 N. C. 221, 93 S. E. 2d 163, the Supreme Court 
of North Carolina said:

“Our deep conviction is that the interpretation now 
placed on the Fourteenth Amendment, in relation to the 
right of a state to determine whether children of dif­
ferent races are to be taught in the same or separate 
public schools, cannot be reconciled with the intent of 
the framers and ratifiers of the Fourteenth Amendment. 
However that may be, the Constitution of the United 
States takes precedence over the Constitution of North 
Carolina. Constitution of North Carolina, Article I, sec­
tion 3 and 5; Constitution of the United States, Article 
VI. In the interpretation of the Constitution of the 
United States, the Supreme Court of the United States is 
the final arbiter. Its decision in the B r o w n  case  is the 
law of the land and will remain so unless reversed or 
altered by constitutional means. Recognizing fully that 
its decision is authoritative in this jurisdiction, any pro­
vision of the Constitution or statutes of North Carolina 
in conflict therewith must be deemed invalid.”

We are all, of course, a product of the environment or 
milieu into which we are born, along with the type of culture, 
customs and entrenched patterns of behavior that prevail at 
the time. To charge us with following a custom of segregation 
is indeed emphasizing the obvious and represents an attempt 
to convert the well-known facts into a great discovery. One 
is reminded of the statements of George Bernard Shaw in re­
gard to certain biologists who set out to prove certain facts 
well-known to mankind. He said that such scientists were 
“solemnly offering us as epoch-making discoveries their 
demonstrations that dogs get weaker and die if you give them 
no food; that intense pain makes mice sweat; and that if you 
cut off a dog’s leg the three-legged dog will have a four­
legged puppy.” (Preface to B a c k  to  M e th u se la h )

It is believed that counsel for the petitioners partake of the



14

environment and customs into which they are born and that 
they, as well as ourselves, have their customs, culture and 
mores spoon-fed and given to them by a process of indoctrina­
tion. It is submitted, therefore, that before we are condemned 
and now held up to scorn because we thought we could 
choose our associates it should be remembered, and, in fact, 
it should not be forgotten at all, that prior to 1954 we had 
judicial sanction and approval for our customs and practices 
on the part of both Federal and State Courts.

Ill

THE FOURTEENTH AMENDMENT DOES NOT PRO­
HIBIT THE OPERATOR OF A PRIVATE ENTER­
PRISE FROM SELECTING THE PATRONS, CUS­
TOMERS OR CLIENTELE HE WILL SERVE NOR 
DOES IT PROHIBIT HIM FROM MAKING SUCH 
SELECTION ON THE BASIS OF COLOR IF HE SO 
DESIRES.

Under this subject we desire to discuss the first two ques­
tions which we have given as the Questions Presented in our 
brief.

Putting to one side the ancient and long accepted rules as 
to innkeepers, cab transportation and grist mills, we submit 
that the Supreme Court of North Carolina is clearly support­
ed by the great weight of authority when it said (State v. 
Avent, et al., Supra):

“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 dis­
crimination 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 own­
ed building has a 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,



15

if he so desires. He is not an innkeeper. This is the com­
mon law.”

To support this proposition there are several cases 
(STATE v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 295; 
WILLIAMS v. HOWARD JOHNSON’S RESTAURANT, 4 
Cir., 268 F. 2d 845; SLACK v. ATLANTIC WHITE TOWER 
SYSTEM, INC., 181 F. Supp. 124, aff’d. per curiam 4 Cir., 284
F. 2d 746; GRIFFIN v. COLLINS, 187 F. Supp. 149; 
DREWS v. MARYLAND, 224 Md. 186, 167 A. 2d 341; RAN­
DOLPH v. COMMONWEALTH, 202 Va. 661, 119 S. E. 2d 
817; GRIFFIN v. MARYLAND, 225 Md. 442, 171 A. 2d 717; 
ALPAUGH v. WOLVERTON, 184 Va. 943, 36 S. E. 2d 906; 
NANCE v. MAYFLOWER RESTAURANT, 106 Utah 517, 
150 P. 2d 773; HENDERSON v. TRAILWAY BUS CO., 194 F. 
Supp. 423; ARMWOOD v. FRANCIS, 9 Utah 2d 147, 340 P. 
2d 88; POWELL v. UTZ, 87 F. Supp. 811; BROWDER v. 
GAYLE, 142 F. Supp. 707, aff’d 352 U. S. 903, 1 L. ed. 2d 114, 
77 S. Ct. 145).

In WILLIAMS v. HOWARD JOHNSON’S RESTAU­
RANT, supra, Judge Soper, writing for the Fourth Circuit 
Court of Appeals, on this subject said:

“The plaintiff concedes that no statute of Virginia re­
quires the exclusion of Negroes from public restaurants 
and hence it would seem that he does not rely upon the 
provisions of the Fourteenth Amendment which pro­
hibit the states from making or enforcing any la w  
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 require the segregation of the races in 
the facilities furnished by carriers and by persons en­
gaged in the operation of places of public assemblage; he 
emphasizes the long established local custom of exclud­
ing Negroes from public restaurants and he contends 
that the acquiescence of the state in these practices 
amounts to discriminatory state action which falls with­
in the condemnation of the Constitution. The essence of 
the argument is that the state licenses restaurants to 
serve the public and thereby is burdened with the posi­
tive duty to prohibit unjust discrimination in the use 
and enjoyment of the facilities.



16

“This argument fails to observe the important distinc­
tion between activities that are required by the state 
and those which are carried out by voluntary choice and 
without compulson by the people of the state in accord­
ance with their own desires and social practices. Unless 
these actions are performed in obedience to some positive 
provision of state law they do not furnish a basis for the 
pending 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 Com­
missioner, 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 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 Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 
836,842,92 L. ed. 1161:

“‘Since 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 
constitutional law that the action inhibited by the 
first section of the Fourteenth Amendment is  o n ly  
su ch  a c tio n  as m a y  fa ir ly  he sa id  to  be th a t  o f  th e  
S ta te s . That Amendment erects no shield against 
merely private conduct, however discriminatory or 
wrongful.’”

In SLACK v. ATLANTIC WHITE TOWER SYSTEM, 
INC., 181 F. Supp. 124, the plaintiff took the position that 
the decisional law of the State of Maryland sanctioned the 
custom, practice and usage of segregating the races in res­
taurants. In answering this contention the Court said:

“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 Baltimore City but is the result of the 
business choice of the individual proprietors, catering to 
the desires or prejudices of their customers.”

In HENDERSON v. TRAILWAY BUS CO., 194 F. Supp.



17

423, Judge Albert V. Bryan, whose record shows him to be 
an objective judge, said:

“But, in any event, the critical factor is that the statutes 
apply only to places where a person goes ‘without au­
thority of law’, meaning property not at the time af­
fected with the public interest. Racial segregation on 
property in private demesne has never in law been con- 
demnable. Indeed, the occupant may lawfully forbid any 
and all persons, regardless of his reason or their race 
or religion, to enter or remain upon any part of his 
premises which are not devoted to a public use. * * * 
After accrediting all of the plaintiffs’ testimony with its 
face value, still no proof appears of discrimination 
against Negroes in the invocation of the statutes. There 
are no instances adduced of differentiation between the 
races in the execution of these laws. Indeed, the evidence 
reveals that both whites and Negroes were arrested for 
the transgressions, as well as persons identified as ‘Moor­
ish Americans’, who are described as being neither white 
nor Negro.”

The right of the owner of a private enterprise, whether the 
same be a restaurant or other form of private business enter­
prise, to make such selection of customers or patrons as he 
desires has been repeatedly upheld by the appellate courts of 
the various states (MADDEN v. Q U E E N S  COUNTY 
JOCKEY CLUB, 269 N .Y. 249, 72 N. E. 2d 697, 1 A. L. R. 2d 
1160; TERRELL WELLS SWIMMING POOL v. ROD­
RIGUEZ TEX. CIV. APP., 182 S. E. 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. SAVAGE, 122 Wash. 194, 
210 P. 374; DE LA YSLA v. PUBLIX THEATRES CORP­
ORATION, 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.).

This rule was recognized by Mr. Justice Holmes in TER-



18

MINAL TAXICAB CO. v. KUTZ, 241 U. S. 252, 256; 60 L. ed. 
984, 36 S. Ct. 583, 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 arbitrarily to a cus­
tomer whom he dislikes * *

A

The Argument of Custom and Usage

The question the Court is actually facing in this argument 
from custom and usage is whether or not by some metaphys­
ical or transcendental process custom and usage is transform­
ed or converted into state action. Petitioners apparently 
argue that this is enough but if it should not be enough, then 
the addition of property affected with public interest, en­
forcement by court action and licensing requirements would 
surely be enough to constitute state action as they allege. Of 
course, the statute giving an action for deprivation of rights 
(42 USC 1983) uses the words “custom, or usage”, but this 
must be construed in connection with the deprivation of de­
finite rights or privileges of a constitutional nature that are 
fixed and established. For example, the same is true in re­
gard to the holding in SHELLEY v. KRAEMER, 334 U. S. 
1, 92 L. ed. 1161, 68 S. Ct. 836, for the Federal statute (42 
USC 1982) guaranteed all persons the same right as is en­
joyed by white citizens “to inherit, purchase, lease, sell, hold, 
and convey real and personal property.” If it is true, there­
fore, that the private action of private owners and operators 
of restaurants and other private enterprises in choosing to 
serve patrons of any one race or in choosing to serve persons 
of any particular national or racial descent becomes state 
action, then there is no area in the choice of companions ac­
cording to personal selection, racial or affinities of blood or 
any other preferences, irrational or illogical though they may



19

be, which will be free from constitutional interference in the 
name of and under the guise of state action.

The limits of the logic used by the petitioners would cer­
tainly be that the Fourteenth Amendment eventually re­
quires every citizen to select his personal friends and as­
sociates according to a racial or ethnic cross section which 
would be made up of persons having different and varied 
ancestries. If the members of a certain racial group wish to 
patronize a certain restaurant to the exclusion of certain 
other groups and the owner of the restaurant agrees, then 
this would violate the Constitution according to this theory. 
If the theory of the petitioners is the correct interpretation of 
the Fourteenth Amendment, then no private club, such as a 
country club, can set up rules of eligibility which would ex­
clude colored people for that very act, as well as the act of 
one who argued in such a club for the exclusion of colored 
people, would be state action. Sometimes white families in 
the Southern States who own large residences will rent rooms 
that are not needed, and if they excluded Negroes in their 
renting procedures they would violate the Constitution. Oc­
casionally such families will furnish meals, and if they cus­
tomarily refuse to serve Negroes while serving white people, 
then under this theory they will be liable for damages under 
42 USC 1983 or could be imprisoned under 18 USC 242. Under 
this theory the Mormon Church would be discriminating 
against colored people by state action, because, we are told, 
they exclude colored people from their membership, and, 
likewise, the regular Masonic lodges organized and operated 
by white persons would also be guilty, because, we are told, 
they also exclude colored people.

The protection which the Fourteenth Amendment extends 
even to white people as a guarantee of some freedom of 
choice and individualism is recognized even by those persons 
who strongly approve of the decision in the Brown Case and 
who are the foes of segregation in all areas where the state 
has the least influence. For example: Professor Edmond 
Cahn, Professor of Law at New York University School of 
Law, in his article on Jurisprudence (30 New York Univer­



20

sity Law Review 150, 156), has this to say:

“But there are limits—even to the just claims of a polit­
ical democracy. It would be ridiculous to contend that 
every citizen ought to select his or her social companions 
from a proportionate cross-section of the ethnic groups 
that make up the American people. If there is any area 
in which personal tastes, affinities, and irrational pre­
ferences may healthfully govern our behavior, it is in the 
process of selecting our social companions. When we re­
solve to observe the principles of the Constitution in 
every activity that is sponsored or controlled by govern­
ment, our ability to do so in a willing and congenial man­
ner may well depend on our being free, spontaneous, 
and unhampered in the remainder of our relationships. 
Somehow, sometime people will consort with whom they 
choose. For this reason, the distinction between official 
and unofficial segregation—a distinction to which the 
Supreme Court has adhered consistently—seems indis­
pensable to furthering harmony among diverse racial 
groups. Discrimination in regard to corporate advantages 
(such as transportation, housing, employment, political 
franchise, or educational opportunity) violates the 
American promise; but discrimination in the choice of 
friends and private associates may furnish the very 
safety valve that many Americans require for psychic 
health. Friendship draws its sustenance from a fund of 
common experiences and inclinations, and in the major­
ity of cases, group culture and affiliation will continue 
to be a primary factor.”

Professor Cahn in the same article (p. 167) is also distrust­
ful of the behavioral sciences. On this point he says:

“In the first place, since the behavioral sciences are so 
very young, imprecise, and changeful, their findings 
have an uncertain expectancy of life. Today’s sanguine 
asservation may be canceled by tomorrow’s new revela­
tion—or new technical fad. It is one thing to use the 
current scientific findings, however ephemeral they may 
be, in order to ascertain whether the legislature has 
acted reasonably in adopting some scheme of social or 
economic regulation; deference here is shown not so 
much to the findings as to the legislature. It would be 
quite another thing to have our fundamental rights rise, 
fall, or change along with the latest fashions of psy­
chological literature. Today the social psychologists—at



21

least the leaders of the discipline—are liberal and 
egalitarian in basic approach. Suppose the generation 
hence, some of their successors, were to revert to the 
ethnic mysticism of the very recent past; suppose they 
were to present us with a collection of racists’ notions 
and label them ‘science’. What then would be the state 
of our constitutional rights?”

B

Invoking the Aid of the Court in Private Discrimination

If the petitioners have a constitutional right to go in and 
upon restaurant property whenever they choose, then cer­
tainly the invoking of the aid of the Court would be state 
action. We certainly recognize that the term “state action” 
includes action through a state legislature, through state 
courts or through executive or administrative officers (CAR­
TER v. TEXAS, 177 U. S. 442, 44 L. ed. 839, 20 S. Ct. 687). 
State action certainly includes state inaction where there is 
a duty to act (LYNCH v. UNITED STATES, 5 Cir., 189 F. 
2d 902). It is not denied that the action of a police officer, if 
he acts contrary to law, is state action (VALLE v. STEN­
GEL, 3 Cir., 176 F. 2d 697). We believe, however, a police 
officer can engage in state action rightfully and that color 
is not an exemption from the application of constitutional 
laws.

We will discuss the question of whether or not the general 
trespass statute of North Carolina under which the petition­
ers were indicted is void by reason of vagueness.

At the beginning of the discussion on this point it should 
be squarely stated that if the petitioners had a constitutional­
ly protected right to go in and upon the property and pre­
mises of the owner of the restaurant in this case, then there 
is no question as to the effect of the state action of the police 
officer, as well as the exertion of the judicial power of the 
North Carolina Courts. We have previously cited several 
cases, both State and Federal, showing that the owner of a 
restaurant has a right to choose his patrons for any reason



22

that pleases him. In addition, we have already cited several 
cases showing that this same rule applies to various forms 
of private enterprises other than restaurants and that absent 
a statute to the contrary the owner controls the patronage 
of his premises and limits the access to his premises under 
such limitations as he chooses. A custom or usage as to what 
races or groups shall eat meals together in accordance with 
the approval of the owner is not invalid unless it violates a 
previously established constitutional right. The question is 
well stated in 46 Virginia Law Review 128, where the author 
of the note says:

“Therefore, to state a cause of action, the victim of 
private discriminations must show that enforcement by 
the state will deprive him of a constitutional or statutory 
right which exists apart from the mere fact that state 
enforcement is present. Although the Fourteenth 
Amendment prohibits any racial discrimination by a 
state activity, it imposes no duty upon the state to pro­
tect an individual from private discrimination.”

A state in enforcing its trespass statutes against trespass­
ers who have been warned to leave the premises is not induc­
ing others to discriminate but is upholding the property 
owner’s rights even if the end result is private discrimina­
tion. As previously pointed out in our Statement of Facts, 
the petitioners were preparing for their case in court, and it 
is admitted that they could enter part of the store and make 
purchases at the various counters, and this is said to give the 
petitioners the right to go anywhere in the store that they 
desire. Great stress is also placed upon an implied invitation 
to come into the store but up to this time such implied invita­
tion or license has always been revocable. We think the 
Supreme Court of North Carolina is supported by the great 
weight of judicial authority in this Nation when it said in 
this case:

“In an Annotation in 9 ALR, p. 379, it is said: ‘It seems 
to be well settled that, although the general 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 individual from the store if



23

he refuses to leave when requested to do so.’ The An­
notation 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 ALR 417, and Annotation in 33 ALR 421.”

This same principle was also stated by Mr. Justice Holmes 
in TERMINAL TAXICAB CO. v. KUTZ, 241 U. S. 252, 256, 
60 L. ed. 984, 987, 36 S. Ct. 583, when writing for the Court 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 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 
shopkeeper may refuse his wares arbitrarily to a custom­
er whom he dislikes * *

The general trespass statute of North Carolina (G. S. 14- 
134) is a neutral statute, and there is not the slightest evi­
dence in the record that this statute nearly a century old was 
directed toward or designed for any racial purposes. There is 
not the slightest evidence in the record that its administra­
tion over the decades in which it has been in effect has been 
directed towards the colored race as being singled out from 
other groups. We have already given an instance in which 
our trespass laws were used to protect an old colored woman 
as against the depredations of six white men in cutting and 
carrying off her timber. In the case before the Court the 
statute was enforced against two white persons along with 
the colored persons. It was not enforced at the instance of the 
State or at the instance of any State officer for it is clear from 
the record that the Manager of the Corporation requested 
the Durham Police to take action. The statute is available for 
the protection of colored people engaged in private enterprise 
as well as white people, and this, therefore, does not repre­
sent a case of State enforcement through indiscriminate im­
position of inequalities. Even though the proprietor of a cafe 
or restaurant may be prompted by the motive of color it is



24

the person who trespasses and who refuses to leave whatever 
may be the color or race.

We have heretofore thought that the lawyer could choose 
his partner or his clients on any basis that he privately 
adopted and that seemed proper to him. We never thought 
that because there was an implied invitation to enter his 
office, which may border on the public street, that a lawyer 
had to accept a colored client under the Fourteenth Amend­
ment if he did not want to do so. The same would be true as 
to doctors, dentists and all skilled and professional people 
who offer their services to the public.

This Court has been careful to say in cases decided where 
state action was concerned that private discrimination was 
not involved. For example: In SHELLEY v. KRAEMER, 334
U. S. 1, 92 L. ed. 1161, 68 S. Ct. 836, involving discriminatory 
covenants held to be in violation of the Fourteenth Amend­
ment in which the courts were resorted to for enforcement, 
this Court said:

“That Amendment erects no shield against merely 
private conduct, however discriminatory or wrongful.” 
(UNITED STATES v. HARRIS, 106 U. S. 629, 27 L. ed. 
920, 1 S. Ct. 601; UNITED STATES v. CRUIKSHANK, 
92 U. S. 542, 23 L. ed. 588)

In BOYNTON v. VIRGINIA, 364 U. S. 454, 5 L. ed. 2d 206, 
81 S. Ct. 182, this Court held that a restaurant in a bus term­
inal could not conduct business in a segregated manner be­
cause of the Interstate Commerce Act; this Court, however, 
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.”

Apparently general trespass statutes have been recognized 
in an indirect manner by this Court as being valid. In MAR­
TIN v. CITY OF STRUTHERS, 319 U. S. 141, 147, 87 L. ed. 
1313, 63 S. Ct. 862, Mr. Justice Black said:



25

“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 20 states, while similar 
statutes of narrower scope are on the books of at least 12 
states more. * * *”.

In MARSH v. ALABAMA, Title 14, Sec. 426 of the Ala­
bama Code, made it a crime to enter or remain on the pre­
mises of another after having been warned not to do so. The 
appellant, a Jehovah’s Witness, came on the sidewalk in the 
company-owned town, stood near the post office and under­
took to distribute religious literature. This Court did not 
in any wise question the validity of the trespass statute but 
simply held that the company-owned town was such a part 
of the functioning community that the channels of com­
munication must remain free and that the results of the 
trespass statute were inapplicable or insulated by reason 
of freedom of press, speech and religion.

In BREARD v. ALEXANDRIA, 341 U. S. 622, 95 L. ed. 
1233, 71 S. Ct. 920, this Court on balancing the rights of the 
parties said it would be a misuse of the great guarantees of 
free speech and free press to use those guarantees to force 
a community to admit the solicitors of publications to the 
home premises of its residents.

There are certain cases relied upon by petitioners which 
we do not think are pertinent or applicable to this situation. 
In this line of cases there were definite constitutional rights 
to be protected, and there was action on the part of the state 
and these cases represent discrimination in areas of govern­
mental activity. They pertain, for example, to situations 
where a state grants a franchise to a public utility (BOMAN 
v. BIRMINGHAM TRANSIT COMPANY, 5 Cir., 280 F. 2d 
531; BROWDER v. GAYLE, 142 F. Supp. 707, aff’d. 353 U. S. 
903; FLEMING v. SOUTH CAROLINA ELEC. & GAS CO., 
4 Cir., 224 F. 2d 752). There is also a line of cases where 
a state or a subdivision of a state operates restaurants, play­
grounds, parks or other facilities, either itself or through 
its lessee, in which there can be no discrimination (BURTON



26

v. WILMINGTON PARKING AUTHORITY, 365 U. S. 715, 
6 L. ed. 2d 45, 81 S. Ct. 56; DERRINGTON v. PLUMMER, 
5 Cir., 240 F. 2d 922; CITY OF GREENSBORO v. SIMKINS, 
4 Cir., 246 F. 2d 425; DAWSON v. BALTIMORE, 4 Cir.,' 220 
P. 2d 386, aff’d. 350 U. S. 877). The same rules also are 
settled in the school cases, such as the Brown Case and the 
Bolling Case.

The right to use, enjoy and manage property, as well as 
to own property, existed before the Constitution of the United 
States was adopted, and while it is true that the use of 
property has been regulated for reasons of health, suppres­
sion of nuisances, fire protection, and in the realm of public 
utilities, this has not destroyed the right of the owner to 
have such persons as he chooses on his property. We quote 
some excerpts as to the rights of property owners, as follows:

“The right of property is a fundamental, natural, in­
herent, and inalienable right. It is not e x  g ra tia  from 
the legislature, but e x  d e b ito  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 protec­
tion 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, Sec. 335)

“It is a part of every man’s civil rights that he be left 
at liberty to refuse business relations with any person 
whomsoever, whether the refusal rests upon reason, 
or the result of whim, caprice, prejudice, or malice. With 
his reasons neither the public nor third persons have 
any legal concern. It is also his right to have business 
relations with any one whom he can make contacts, and 
if he is wrongfully deprived of this right he is entitled 
to redress.” (MYERS v. MEMPHIS, 135 Tenn. 263; Ann. 
Cas. 1918 C, 856 (272))

“Every man has the right to labor or refuse to labor 
for another, and he may base such refusal on any 
grounds he may choose, and even on mere whim, preju­



27

dice or malice. The right to labor or to employ labor 
and to make contracts with respect thereto, upon such 
terms as may be agreed upon, besides being a property 
right, is incident to the freedom of the individual, and 
is as fully protected by law as any other personal or 
private right.” (6 R. C. L. 268, 269 (Sec. 253) note 10)

“Since it is the inherent and inalienable right of every 
man freely to deal, or refuse to deal, with his fellow- 
man, the free and untrammeled right to contract is a 
part of the liberty guaranteed to every citizen, and as 
being within the protection of the fourteenth amend­
ment to the Constitution of the United States.” (6 R. C. 
L. 269, 270 (Sec. 254) notes 16, 17 and 18)

“The invitation may be limited at will. No one has a 
right to demand admission or consideration, and this 
may be denied arbitrarily. Under such circumstances 
discrimination against persons because of their color 
is not a violation of any right recognized by law. Such 
discrimination represents a social distinction, which, 
although arbitrary and sometimes extremely exasperat­
ing, has no remedy under law.” (5 R. C. L. 586(10), 56 
Am. Rep. 355, 1 L.R.A. 1188, 25 N.W. 766)

C

The Attaining of a License from the State to Operate 
a Restaurant

It is the contention of the petitioners that because the 
operator of the luncheonette in this case was required to 
obtain certain State licenses this converts the operator into 
a person who is able to take state action, and, therefore, 
his action in having the petitioners expelled from the prem­
ises is state action. This question was raised in the case 
of WILLIAMS v. HOWARD JOHNSON’S RESTAURANT, 
supra, where the Court said:

“The essence of the argument is that the State licenses 
restaurants to serve the public and thereby is burdened 
with the positive duty to prohibit unjust discrimination 
in the use and enjoyment of the facilities * * * The lic­
ense laws of Virginia do not fill the void. Sec. 35-26 of 
the Code of Virginia, 1950, makes it unlawful for any



28

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 same argument was made in SLACK v. ATLANTIC 
WHITE TOWER SYSTEM, INC., supra, where the Court 
said:

“The license laws of the State of Maryland applicable 
to restaurants are not regulatory * * * The City Ordi­
nance, No. 1145, November 27, 1957, adding Sec. 60-1/2 
to Article 12 of the Baltimore City Code, 1950 Edition., 
which was not offered in evidence or relied on by plain­
tiff, is obviously designed to protect the health of the 
community. Neither the statute nor the ordinance au­
thorizes state or city officials to control the management 
of the business of a restaurant or to dictate what persons 
will be served.

“Even in the case of licensees, such as racetracks 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.”

In the case of MADDEN v. QUEENS COUNTY JOCKEY 
CLUB, 296 N. Y. 249, 72 N. E. 2d 697, the Court said:

“A license . . .  is no more than a permission to exercise 
a pre-existing right which has been subjected to regula­
tion in the interest of the public welfare. The grant of 
a license to promote the public good, in and of itself, 
however, makes neither the purpose a public one nor 
the license a franchise, neither renders the enterprise 
public nor places the licensee under obligations to the 
public * * * Adopting plaintiff’s position, it would be 
equally valid to argue that every licensee, theater man­
ager, cab driver, barber, liquor dealer, dog owner—to 
mention a few—must be regarded as ‘an administrative 
agency of the state’ in the conduct of his everyday busi­
ness simply because he pays a tax or fee for his license.”

It is clear that a license from the Government does not



29

create an area of governmental assistance or convert a priv­
ate business into such a public business that the owner or 
operator is endowed with the capacity of state action. It is 
a form of regulation as to sanitation or adequate food re­
frigeration accompanied in most cases by tax, and anyone 
who meets the requirements can be licensed. Such regulation 
cannot be dogmatically equated with state control or action 
so as to bring into play the operation of the Fourteenth 
Amendment, and state action is not the equivalent of the 
state’s conditions required to operate a restaurant.

D

The Operation of a Restaurant is Not a Business Affected
with Public Interest or Public Service

The petitioners are in a position of persons who have a 
pre-determined objective, and in order to arrive at this 
objective they wish to dispense with the requirement of 
state action in the Fourteenth Amendment, and if this is 
not possible they wish to equate private action with state 
action by transforming all business operations into business­
es affected with the public interest.

It is unnecessary to discuss the public service or public in­
terest concept and trace it from the case of MUNN v. ILLI­
NOIS, 94 U. S. 113, 24 L. ed. 77, because this Court has clear­
ly defined and described the businesses that are affected 
with the public interest, or, more correctly, businesses en­
gaged in the performance of public service. These are usually 
such things as telephone companies, water companies, elec­
trical companies, and transportation companies. This Court 
has further clearly stated that it did not include all businesses 
in these categories, although the businesses may have public 
features and aspects. For example: In WILLIAMS v. 
STANDARD OIL CO., 278 U. S. 235, 49 S. Ct. 115, 73 L. ed. 
287, the State of Tennessee undertook to declare through its 
legislature that the business of selling gasoline was one 
affected with the public interest and to fix the prices for 
which gasoline could be sold within the State. In disposing 
of this argument, this Court said:



30

“It is settled by recent decisions of this court that a 
state legislature is without constitutional power to fix 
prices at which commodities may be sold, services rend­
ered, or property used, unless the business or property 
involved is ‘affected with a public interest.’ Chas. Wolff 
Packing Co. v. Court of Industrial Relations, 262 U. S. 
522, 67 L. ed. 1103, 27 A. L. R. 1280, 43 Sup. Ct. Rep. 
630; Tyson & Bro .-United Theatre Ticket Offices v. 
Banton, supra; Fairmont Creamery Co. v. Minnesota, 274 
U. S. 1, 71 L. ed. 893, 52 A. L. R. 163, 47 Sup. Ct. Rep. 
506; Ribnik v. McBride, 277 U. S. 350, 72 L. ed. 913, 56 
A. L. R. 1327, 48 Sup. Ct. Rep. 545. Nothing is gained 
by reiterating the statement that the phrase is indefinite. 
By repeated decisions of this court, beginning with 
Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77, that phrase, 
however it may be characterized, has become the es­
tablished test by which the legislative power to fix prices 
of commodities, use of property, or services must be 
measured. As applied in particular instances, its mean­
ing may be considered both from an affirmative and a 
negative point of view. Affirmatively, it means that a 
business or property, in order to be affected with a pub­
lic interest, must be such or be so employed as to justify 
the conclusion that it has been d e v o te d  to a public use 
and its use thereby in effect granted to the public. Tyson 
& Bro.-United Theatre Ticket Offices v. Banton, supra, 
p. 434 (71 L. ed. 724, 58 A. L. R. 1236, 47 Sup. Ct. Rep. 
426). Negatively, it does not mean that a business is 
affected with a public interest merely because it is large 
or because the public are warranted in having a feeling 
of concern in respect of its maintenance. Id. p. 430. The 
meaning and application of the phrase are examined 
at length in the Tyson Case, and we see no reason for 
restating what is there said.

“In support of the act under review it is urged that 
gasoline is of widespread use; that enormous quantities 
of it are sold in the state of Tennessee; and that it has 
become necessary and indispensable in carrying on 
commercial and other activities within the state. But 
we are here concerned with the character of the busi­
ness, not with its size or the extent to which the com­
modity is used. Gasoline is one of the ordinary com­
modities of trade, differing, so far as the question here 
is affected, in no essential respect from a great variety 
of other articles commonly bought and sold by mer­
chants and private dealers in the country. The decisions 
referred to above make it perfectly clear that the busi­



31

ness of dealing in such articles, irrespective of its extent, 
does not come within the phrase ‘affected with a public 
interest.’ Those decisions control the present case.”

In the case of NEW STATE ICE CO. v. LIEBMANN, 285 
U. S. 262, 52 S. Ct. 371, 76 L. ed. 747, the State of Oklahoma 
declared that the manufacture, sale and distribution of ice 
was a public business and that no one could be permitted 
to manufacture, sell and distribute ice within the State with­
out first having secured a license. It was further provided 
that there must be a necessity at the place desired, to be 
found by the Corporation Commission, before the license 
would be issued. Action was brought to restrain the defen­
dant, who was operating without a license, and in holding 
that this was not such a business as was affected by the 
public interest and that the defendant was entitled to operate 
his business under the protection of the Fourteenth Amend­
ment, this Court said:

“It must be conceded that all businesses are subject to 
some measure of public regulation. And that the busi­
ness of manufacturing, selling or distributing ice, like 
that of the grocer, the dairyman, the butcher or the 
baker may be subjected to appropriate regulations in 
the interest of the public health cannot be doubted; but 
the question here is whether the business is so charged 
with a public use as to justify the particular restriction 
above stated. If this legislative restriction be within the 
constitutional power of the state legislature, it follows 
that the license or permit, issued to appellant, constitutes 
a franchise, to which a court of equity will afford pro­
tection against one who seeks to carry on the same 
business without obtaining from the commission a li­
cense or permit to do so. Frost v. Corporation Commis­
sion, 278 U. S. 515, 519-521, 73 L. ed. 483, 487, 488, 49 
S. Ct. 235. In that view, engagement in the business is 
a privilege to be exercised only in virtue of a public 
grant, and not a common right to be exercised inde­
pendently (ibid.) by any competent person conformably 
to reasonable regulations equally applicable to all who 
choose to engage therein.

“Here we are dealing with an ordinary business, not 
with a paramount industry, upon which the prosperity 
of the entire state in large measure depends. It is a busi­



32

ness as essentially private in its nature as the business 
of the grocer, the dairyman, the butcher, the baker, the 
shoemaker, or the tailor, each of whom performs a 
service which, to a greater or less extent, the commun­
ity is dependent upon and is interested in having main­
tained; but which bears no such relation to the public 
as to warrant its inclusion in the category of businesses 
charged with a public use.”

In the case of WOLFF PACKING CO. v. COURT OF IN­
DUSTRIAL RELATIONS, 262 U. S. 522, 43 S. Ct. 630, 67 L. 
ed. 1103, the State of Kansas undertook to place a packing 
company under the jurisdiction of the Court of Industrial 
Relations whereby wages could be fixed and other terms 
for the future conduct of the industry. The Wolff Packing 
Company was engaged in slaughtering hogs and cattle and 
preparing the meat for sale and shipment. The Kansas Act 
declared that the business was affected with the public in­
terest. In holding the Kansas Act to be unconstitutional this 
Court said:

“Businesses said to be clothed with a public interest 
justifying some public regulation may be divided into 
three classes:

“ (1) Those which are carried on under the authority 
of a public grant of privileges which either expressly or 
impliedly imposes the affirmative duty of rendering a 
public service demanded by any member of the public. 
Such are the railroads, other common carriers and pub­
lic utilities.

“ (2) Certain occupations, regarded as exceptional, the 
public interest attaching to which, recognized from 
earliest times, has survived the period of arbitrary laws 
by Parliament or colonial legislatures for regulating all 
trades and callings. Such are those of the keepers of 
inns, cabs, and gristmills. State v. Edwards, 86 Me. 102, 
25 L.R.A. 504, 41 Am. St. Rep. 528, 29 Atl. 947; Terminal 
Taxicab Co. v. Kutz, 241 U. S. 252, 254, 60 L. ed. 984, 
986, P.U.R. 1916(D), 972, 36 Sup. Ct. Rep. 583, Ann. 
Cas. 1916(D), 765.

“ (3) Businesses which, though not public at their in­
ception, may be fairly said to have risen to be such, and



33

have become subject in consequence to some govern­
ment regulation. They have come to hold such a peculiar 
relation to the public that this is superimposed upon 
them. In the language of the cases, the owner, by de­
voting his business to the public use, in effect grants 
the public an interest in that use, and subjects himself 
to public regulation to the extent of that interest, al­
though the property continues to belong to its private 
owner, and to be entitled to protection accordingly. (Ci­
tations omitted)

“It is manifest from an examination of the cases cited 
under the third head that the mere declaration by a 
legislature that a business is affected with a public 
interest is not conclusive of the question whether its 
attempted regulation on that ground is justified. The 
circumstances of its alleged change from the status of a 
private business and its freedom from regulation into 
one in which the public have come to have an interest 
are always a subject of judicial inquiry.

“It has never been supposed, since the adoption of the 
Constitution, that the business of the butcher, or the 
baker, the tailor, the wood chopper, the mining operator, 
or the miner was clothed with such a public interest 
that the price of his product or his wages could be fixed 
by state regulation. It is true that in the days of the 
early common law an omnipotent Parliament "did regu­
late prices and wages as it chose, and occasionally a 
colonial legislature sought to exercise the same power; 
but nowadays one does not devote one’s property or 
business to the public use or clothe it with a public 
interest merely because one makes commodities for, and 
sells to, the public in the common callings of which those 
above mentioned are instances.

“An ordinary producer, manufacturer, or shopkeeper 
may sell or not sell, as he likes (United States v. Trans- 
Missouri Freight Asso. 166 U. S. 290, 320, 41 L. ed. 1007, 
1020, 17 Sup. Ct. Rep. 540; Terminal Taxicab Co. v. 
Kutz, 241 U. S. 252, 256, 60 L. ed. 984, 987, P. U. R. 
1916(D), 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916(D), 
765); and while this feature does not necessarily ex­
clude businesses from the class clothed with a public 
interest (German Alliance Ins. Co. v. Lewis, 233 U. S. 
389, 58 L. ed. 1011, L.R.A. 1915(C), 1189, 34 Sup. Ct. 
Rep. 612), it usually distinguishes private from quasi 
public occupations.”



34

See also: TYSON & Bro. v. BANTON, 271 U. S. 418, 47 
S. Ct. 426, 71 L. ed. 718, and cases there cited.

We submit, therefore, that to hold that the operation of 
the restaurant business is a business devoted to public serv­
ice or is a business affected with the public interest would 
have results not desired by the people of this Nation. If this 
logic is carried to its ultimate limits instead of being pro­
tected by the Fourteenth Amendment all businesses would 
be socialized and brought under government control. If this 
position of petitioners is sound, then the cafe owner and 
the merchant cannot fix the prices of their services and 
products but some government agency would be required 
to do so. If this position is sound, then the steel mills should 
be required to produce their cost records, and the President 
should have been allowed to have seized the property of the 
steel companies so as not to imperil the national defense 
(YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 
U. S. 579, 72 S. Ct. 863, 96 L. ed. 1153).

E

The Case oj Shelley v. Kraemer is Not Applicable to this 
Situation.

Ever since the decision in SHELLEY v. KRAEMER, 334 
U. S. 1, 68 S. Ct. 836, 92 L. ed. 1161, a sustained effort has 
been made to apply this doctrine to all inequalities. It is sub­
mitted that the case has no application to this situation at 
all. In the first place the petitioners, who were Negroes, 
acquired the property subjected to the restricted covenant 
by warranty deed; in other words, the sale of the property 
between the parties concerned was by mutual agreement 
and was voluntary. Those who tried to enforce the restric­
tive covenant were third parties. In this case there is no 
agreement between the parties, but, to the contrary, there 
is disagreement in that the owner of the restaurant does 
not desire the presence of petitioners on his property, and 
in exercising his choice of customers he warned them to 
leave. In the second place in refusing to permit judicial



35

action on the part of the state for the enforcement of the 
restrictive covenant this Court was but giving effect to the 
freedom of all people of all races to acquire property without 
being hampered by racial obstructions. This Court was en­
forcing a federal statute which said: “All citizens of the 
United States shall have the same right, in every state and 
territory, as it is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell, hold, and convey real and personal 
property.” This Court was careful to say that “Because of 
the race or color of these petitioners they have been denied 
rights of ownership or occupancy enjoyed as a matter of 
course by other citizens of different race or color”, and that 
“The difference between judicial enforcement and non-en­
forcement of the restrictive covenants is the difference to 
petitioners between being denied rights of property avail­
able to other members of the community and being accorded 
full enjoyment of those' rights on an equal footing.” In the 
Shelley Case, therefore, the petitioners had a constitutional 
and statutory right to be protected and that was the equal 
right with all others to acquire and enjoy property.

The case is not an authority for the theory that all priv­
ate activity enforced by court action is prohibited state 
activity. As said by the author in an article entitled: “The 
Impact of Shelley v. Kraemer on the State Action Concept” 
(44 Calif. Law Review, p. 733):

“If obtaining court aid to carry out ‘private’ activity 
‘converts’ such private action into ‘state’ action, then 
there could never be any private action in any practical 
sense. So entwined are our lives with the law that the 
logical result would be that almost all action, to be ef­
fective, must result in state action. Thus, all private 
activity would be required to ‘conform’ with the stand­
ards of conduct imposed on the states by the Fourteenth 
Amendment. Under the guise of protecting civil rights 
by ‘strengthening’ due process and the equal protection 
of the laws, is it not possible that Shelley creates a means 
of restricting civil liberties, making possible far greater 
government control of individual activity than desired?”

The case simply stands for the proposition that the courts



36

cannot be used to allow a person to commit an act forbidden 
the states by the Fourteenth Amendment. If other rights 
intervene, such as those of the property owner, they, too, 
are entitled to protection under the Fourteenth Amendment 
and court action would be proper.

IV

THE GENERAL TRESPASS STATUTE OF NORTH CARO­
LINA DOES NOT VIOLATE THE FOURTEENTH 
AMENDMENT BECAUSE OF VAGUENESS OR FAIL­
URE TO FURNISH AN ASCERTAINABLE STAND­
ARD OF CONDUCT.

The petitioners attack the general trespass statute of North 
Carolina (G. S. 14-134) under the so-called “void for vague­
ness” rule of constitutional law.

Here again for the convenience of the Court we quote the 
statute, as follows:

“G. S. 14-134. T re sp a ss  on  la n d  a f te r  b e in g  fo r b id d e n .— 
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.”

The petitioners could not have been ignorant of this statute 
or of what constituted prohibited conduct. The petitioners 
had counsel and had consulted counsel about these matters 
(R. 37), and certainly neither petitioners nor their counsel 
were ignorant of the holding of the Supreme Court in STATE 
v. CLYBURN, 247 N. C. 455, 101 S. E. 2d 295, and counsel 
for the petitioners were certainly aware of STATE v. COOKE, 
248 N. C. 485, 103 S. E. 2d 846. The case of STATE v. CLY­
BURN, supra, explains fully the violation of possession or 
what constitutes criminal trespass showing that this inter­
pretation was not a new thing. We have heretofore explain­
ed in this brief that the statute is almost a century old and 
its concepts came from England with the Common Law and



37

that it is allied with or related to G. S. 14-126 on forcible 
entry and detainer, which is almost word for word a copy 
of 5 Richard II, enacted by the British Parliament.

When we get down to the specific examination of statutes 
we find that the North Carolina statute under attack is no 
more vague or indefinite than the statute relied upon by pe­
titioners, such as 14 USCA 1983, which was construed in 
SCREWS v. UNITED STATES, 325 U. S. 91, 65 S. Ct. 1031, 
89 L. ed. 1495. When this federal statute was attacked upon 
the same ground, that is when the Congress did not define 
what it desired to punish but referred the citizen to a compre­
hensive library in order to ascertain what acts were pro­
hibited, this Court upheld the act by reference to its histori­
cal framework and by referring to the fact that this was an 
effort of Congress extending over a period of over 80 years. 
Our statute is no more vague or indefinite than the Sherman 
Antitrust Act and the companion statute referred to as the 
Clayton Act. Our statute is no more vague or indefinite than 
the statute prohibiting interstate transportation in aid of 
racketeering enterprises (18 USCA 1952). Our statute is no 
more vague and indefinite than the federal statute which 
prohibits the asking or receiving of any money by a federal 
officer or employee for the purpose of influencing his deci­
sion on any matter. (18 USCA 201, 202). The General Statute 
of this State on trespass is no more vague and indefinite 
than the laws of any state, or, for that matter, of the Federal 
Government, on punishing for fraud and false pretenses.

As said in the annotation in 96 L. ed. 375:

“Moreover, few words possess the precision of mathe­
matical symbols; most statutes must deal with untold 
and unforeseen variations in factual situations, and the 
practical necessities of discharging the business of gov­
ernment inevitably limit the specificity with which 
legislators can spell out prohibitions. Consequently, no 
more than a reasonable degree of certainty can be de­
manded.”

However, not every statute stated in general terms is held 
to be unconstitutional, and, therefore, invalid under this rule.



38

In 82 C. J. S. (Statutes) p. 108, sec. 68-a, the author says:

“A statute is not rendered uncertain and void merely 
because general terms are used therein, or because of 
the employment of a term, without defining it, where 
such term is one commonly used or understood, or where 
such term is one that has acquired a well defined mean­
ing, is sufficiently known or understandable to enable 
compliance with the statute, or has acquired an estab­
lished meaning through established precedents, techni­
cal knowledge, or the sense and experience of men.

“A statute is not rendered invalid for uncertainty merely 
because of the employment of a term which may be 
judicially noticed, or whose meaning can be determined 
with little difficulty, or can be determined when read in 
connection with the context. The mere fact that a term 
used in a statute might, under some imaginary circum­
stances, be considered ambiguous will not render the 
statute inoperative as regards matters plainly falling 
within the meaning of such term. Ordinarily, where the 
terms used are suitable to the subject matter, they are 
sufficiently certain. The employment of novel and un­
familiar terms, which have not yet acquired any defin­
iteness or certainty, to define a statutory duty sought 
to be imposed may, however, render invalid the statute 
in which they are employed; and the employment of 
terms unknown to the common law and also shown to 
have no well defined meaning in a particular industry 
to which they are directed may invalidate the statute in 
which they are used. Repetition of certain words in a 
section of an act does not render the section void for 
uncertainty where it is manifest from reading the para­
graph that the repetition does not obscure the meaning.

“An act will not be held invalid merely because it might 
have been more explicit in its wording or detailed in its 
provisions, especially where, because of the nature of the 
act, it would be impossible to provide for all the details 
in advance, unless it is so imperfect as to render it im­
possible to execute it.”

In 50 Am. Jur. (Statutes) p. 486, sec. 473, the author 
states:

“Sec. 473.— R e s tr ic t io n s  u p o n  I n v a l id a tio n  fo r  U ncer­
t a in t y .—The basis of the principle that courts will not,



39

in doubtful cases, pronounce a legislative act to be con­
trary to the Constitution, applies with equal force where 
the courts are called upon to declare a statute to be so 
meaningless and unintelligible as to be inoperative, and 
there are many cases in which claims that particular 
statutes or statutory provisions are void for indefinite­
ness have been rejected. This is frequently illustrated 
in the construction of statutes regulating the operation 
of motor vehicles, and motor vehicle carriers, licensing 
of operators and other related matters. The use of such 
terms as ‘reasonable’ or ‘unreasonable’ in defining stand­
ards of conduct or in prescribing charges, allowances and 
the like, and the use of such terms as ‘wilful and wanton 
misconduct’ or ‘gross negligence’, ‘diligent effort’, ‘dis­
honorable conduct’, ‘incompetence’, ‘violation of pro­
fessional duty’, etc., have been held not to render a 
statute invalid for uncertainty and indefiniteness. Other 
applications of the principle are indicated in the foot­
note. From these cases it is evident that absolute or 
mathematical certainty is not required in the framing 
of a statute. A statute is not necessarily void merely 
because it is vague, indefinite, or uncertain, or contains 
terms not susceptible of exact meaning, or is stated in 
general terms, or prescribes a general course of conduct, 
or does not prescribe precise boundaries, or is imperfect 
in its details, or contains errors or omissions, or because 
the intention of the legislature might have been express­
ed in plainer terms, and questions may arise as to its 
applicability, and opinions may differ in respect of what 
falls within its terms, or because the statute is difficult 
to execute. A statute will not be declared void for vague­
ness and uncerainty where the meaning thereof may be 
implied, or where it employs words in common use, or 
words commonly understood, or words previously judi­
cially defined, or having a settled meaning in law, or a 
technical or other special meaning well enough known 
to enable persons within the reach of the statute to ap­
ply them correctly, or an unmistakable significance in 
the connection in which they are employed. In short, 
legislation otherwise valid will not be judicially declared 
null and void on the ground that the same is unintelligi­
ble and meaningless unless it is so imperfect and so 
deficient in its details as to render it impossible of execu­
tion and enforcement, and is susceptible of no reason­
able construction that will support and give it effect, 
and the court finds itself unable to define the purpose 
and intent of the legislature. Moreover, the objection 
that a statute is too vague to be valid is available only 
to one whom it concerns.”



40

In WILLIAMS v. UNITED STATES, 341 U. S. 97, 71 S. 
Ct. 576, 95 L. ed. 774, the Supreme Court of the United States 
had before it an attack upon a Civil Rights Statute (18 USCA 
242) which is perhaps the most indefinite and the vaguest 
statute in the Federal Criminal Code. The statute 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, . . ., shall be fined not more 
than $1,000, or imprisoned not more than one year, or 
both.”

In disposing of this contention the Court said:

“Section 20 would be denied the high service for which 
it was designed if rights so palpably plain were denied 
its protection. Only casuistry could make vague and 
nebulous what our constitutional scheme makes so clear 
and specific.”

In the case of SCREWS v. UNITED STATES, 325 U. S. 
91, 65 S. Ct. 1031, 89 L. ed. 1495, the Supreme Court of the 
United States again upheld this same Civil Rights Statute 
as against the same type of constitutional attack, the Su­
preme Court saying:

“But where the punishment imposed is only for an act 
knowingly done with the purpose of doing that which 
the statute prohibits, the accused cannot be said to 
suffer from lack of warning or knowledge that the act 
which he does is a violation of law.”

In the case of OMAECHEYARRIA v. IDAHO, 246 U. S. 
343, 38 S. Ct. 323, 62 L. ed. 763, the Supreme Court of the 
United States had before it a statute written in very general 
terms and which is quoted in the case as follows:

“Any person owning or having charge of sheep, who 
herds, grazes, or pastures the same, or permits or suf­



41

fers the same to be herded, grazed, or pastured, on any 
cattle range previously occupied by cattle, or upon any 
range usually occupied by any cattle grower, either as 
a spring, summer, or winter range for his cattle, is guilty 
of a misdemeanor; but the priority of possessory right 
between cattle and sheep owners to any range is de­
termined by the priority in the usual and customary 
use of such range, either as a cattle or sheep range.”

In upholding this statute against an attack of void for 
vagueness, the Court said:

“It is also urged that the Idaho statute, being a criminal 
one, is so indefinite in its terms as to violate the guar­
anty by the 14th Amendment of due process of law, 
since it fails to provide for the ascertainment of the 
boundaries of a ‘range’, or for determining what length 
of time is necessary to constitute a prior occupation a 
‘usual’ one within the meaning of the act. Men familiar 
with range conditions and desirous of observing the law 
will have little difficulty in determining what is pro­
hibited by it. Similar expressions are common in the 
criminal statutes of other states. This statute presents 
no greater uncertainty or difficulty, in application to 
necessarily varying facts, than has been repeatedly san­
ctioned by this court. Nash v. United States, 229 U. S. 
373, 377, 57 L. ed. 1232, 1235, 33 Sup. Ct. Rep. 780; Mil­
ler v. Strahl, 239 U. S. 426, 434, 60 L. ed. 364, 368, 36 
Sup. Ct. Rep. 147......... ”

In the case of NASH v. UNITED STATES, 229 U. S. 373, 
57 L. ed. 1232, the Supreme Court of the United States con­
sidered this type of attack upon the Monopoly or Antitrust 
Statute. In upholding the statute Mr. Justice Holmes said:

“And thereupon it is said that the crime thus defined 
by the statute contains in its definition an element of 
degree as to which estimates may differ, with the result 
that a man might find himself in prison because his 
honest judgment did not anticipate that of a jury of 
less competent men. The kindred proposition that ‘the 
criminality of an act cannot depend upon whether a 
jury may think it reasonable or unreasonable. There 
must be some definiteness and certainty,’ is cited from 
the late Mr. Justice Brewer, sitting in the circuit court.



42

Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. 
917, 919.

“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.........”

We could quote from many cases and cite many other 
statutes written in general terms that have been upheld 
but for the sake of brevity we shall merely refer to a few 
more cases and the type of statute considered.

In FOX v. WASHINGTON, 236 U. S. 273, 35 S. Ct. 383, 
59 L. ed. 573, a statute of the State of Washington which 
made it unlawful to print, publish, or knowingly circulate 
any book, paper or document advocating or inciting the com­
mission to any crime, breach of the peace or act of violence, 
was upheld with Mr. Justice Holmes writing the opinion. 
This statute was stated in general terms.

In WHITNEY v. CALIFORNIA, 274 U. S. 357, 47 S. Ct. 
641, 71 L. ed. 1095, the Criminal Syndicalism Act of Califor­
nia, which prohibited teaching or advocating the commis­
sion of crime, sabotage, unlawful acts of force and violence 
or unlawful methods of terrorism as a means of accomplish­
ing a change in industrial ownership or control, or effecting 
any political change, was upheld as against this type of at­
tack.

In GORING v. UNITED STATES, 312 U. S. 19, 61 S. Ct. 
429, 85 L. ed. 488, the Supreme Court had before it on this 
same type of attack the Espionage Act of June 15, 1917. The 
words “intent or reason to believe that the information to 
be obtained is to be used to the injury of the United States, 
or to the advantage of any foreign nation” were said to be 
sufficiently definite for a criminal statute.

In UNITED STATES v. RAGAN, 314 U. S. 513, 62 S. Ct.



43

374, 86 L. ed. 383, the Supreme Court of the United States 
upheld a provision of the Revenue Act of 1932, declaring 
guilty of a felony, simply said: “Any person who willfully 
attempts in any manner to evade or defeat any tax imposed 
by this title or any payment thereof” as not being too vague 
or a delegation of power. As against the same charge the 
clause “a reasonable allowance for salaries or other compen­
sation for personal service actually rendered” was also up­
held. The Court upheld the rule that a successful attack 
based on undue vagueness cannot be made where the sanc­
tions of the statute apply only if intent or scienter is first 
established.

See also on this point the following authorities:

BOYCE MOTOR LINES v. UNITED STATES, 342 U. S. 
337, 72 S. Ct. 329, 96 L. ed. 367;

ROTH v. UNITED STATES, 354 U. S. 476, 77 S. Ct. 
1304, 1 L. ed. 2d 1498;

UNITED STATES v. PETRILLO, 332 U. S. 1, 67 S. Ct. 
1538, 91 L. ed. 1877;

MILLER v. STRAHL, 239 U. S. 426, 36 S. Ct. 147, 60 
L. ed. 364;

BEAUHARNAIS v. ILLINOIS, 343 U. S. 250, 96 L. ed. 
919, 72 S. Ct. 725;

COLE v. ARKANSAS, 338 U. S. 345, 94 L. ed. 155, 70 S. 
Ct. 172;

UNITED STATES v. WURZBACH, 280 U. S. 396, 50 
S. Ct. 167, 74 L. ed. 508.

See also the following Law Review articles:

21 Michigan Law Review 831;

40 Cornell Law Quarterly 195;

30 Yale Law Journal 437;



44

62 Harvard Law Review 77;

109 University of Pennsylvania Law Review 67.

V
THE NORTH CAROLINA STATUTE AS ADMINISTERED 

DOES NOT VIOLATE FREEDOM OF SPEECH AS 
GUARANTEED BY THE FOURTEENTH AMEND­
MENT.

The petitioners’ claim that their constitutional right to 
freedom of speech is violated by the administration of the 
North Carolina statute is the least tenable of all their argu­
ments. The record fully shows that the petitioners and those 
affiliated with them had for days been exercising their right 
of protest and freedom of speech by statements and slogans 
on placards or banners which they carried up and down the 
streets in front of the stores, including the store of S. H. 
Kress & Company.

Freedom of speech is not a protective armor with which 
petitioners can cover themselves and take possession of other 
owners’ property and violate any statute they choose. The 
petitioners can cover themselves with an atmosphere or aura 
of free speech for any of their predetermined objectives and 
this would protect them from the violation of any law. They 
could force their entrance in and upon any property, includ­
ing the home, and so long as they carried a placard with 
printed words and kept talking in support of some cause 
they would be insulated from the application of all criminal 
statutes.

It is submitted that even the right of freedom of speech 
has its reasonable and well justified limitations.

In the case of INTERNATIONAL BROTHERHOOD v. 
HANKE, 339 U. S. 470, 70 S. Ct. 773, 94 L. ed. 995, this Court 
said:

“Here, as in HUGHES v. SUPERIOR COURT, 339 U. S.



45

460, ante., 985, 70 S. Ct. 718, we must start with the fact 
that while picketing has an ingredient of communication 
it cannot dogmatically be equated with the constitution­
ally protective freedom of speech. Our decisions reflect 
recognition that picketing is ‘indeed a hybrid’. * * * The 
effort in the cases has been to strike a balance between 
the constitutional protection of the element of communi­
cation in picketing and ‘the power of the state to set 
the limits of permissible contest open to industrial com­
batants’.”

In this same case this Court further said:

“A State’s judgment on striking such a balance is of 
course subject to the limitations of the Fourteenth 
Amendment. Embracing as such a judgment does, how­
ever, a State’s social and economic policies, which in 
turn depend on knowledge and appraisal of local social 
and economic factors, such judgment on these matters 
comes to this Court bearing a weighty title of respect.”

In KOVACS v. COOPER, 336 U. S. 77, 69 S. Ct. 448, 93 L. 
ed. 513, this Court sustained an ordinance which limited the 
right of communication through loud speakers. In this con­
nection the 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 injunction 
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.”



46

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 picketing 
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, 310 U. S. 88, 84 L. ed. 1093, 60 
S. Ct. 736 cited by the petitioners, and said:

“This is precisely the kind of situation which the Thorn­
hill opinion excluded from its scope. ‘We are not now 
concerned with picketing en masse or otherwise con­
ducted which might occasion such imminent and aggra­
vated 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 abstract 
prohibition of all picketing wholly unrelated to the vio­
lence involved.”

In GITLOW v. NEW YORK, 268 U. S. 652, 45 S. Ct. 625, 
69 L. ed. 1138, this Court sustained a conviction based upon 
the New York statutes, dealing with c r im in a l a n a rc h y , as 
against a defense of freedom of speech.

In BREARD v. CITY OF ALEXANDRIA, 341 U. S. 622, 
71 S. Ct. 920, 95 L. ed. 1233, this Court held constitutional a 
municipal ordinance which prohibited peddlers from calling 
upon occupants of private residences without having been 
requested or invited to do so.

In GIBONEY v. EMPIRE STORAGE & ICE CO., 336 U. S. 
490, 69 S. Ct. 684, 93 L. ed. 834, it was held that the consti­
tutional right of free speech did not preclude an injunction 
against peaceful picketing by an ice peddlers’ union for the 
purpose of coercing a wholesale distributor to agree to refrain 
from selling ice to peddlers not members of the union. In 
this connection this Court said:



47

“It rarely has been suggested that the constitutional 
freedom for speech and press extends its immunity to 
speech and writing used as an integral part of conduct 
in violation of a criminal statute. * * * Neither THORN­
HILL v. ALABAMA, 310 U.S. 88, 84 L. ed. 1093, 60 S. 
Ct. 736, supra, nor CARLSON v. CALIFORNIA, 310 
U. S. 106, 84 L. ed. 1104, 60 S. Ct. 746, both decided the 
same day, supports the contention that conduct other­
wise unlawful is always immune from state regulation 
because an integral part of that conduct is carried on 
by display of placards by peaceful picketers. * * * It is 
true that the agreements and course of conduct here 
were as in most instances brought about through speak­
ing or writing. But it has never been deemed an abridge­
ment of freedom of speech or press to make a course of 
conduct illegal merely because the conduct was in part 
initiated, evidenced, or carried out by means of langu­
age, either spoken, written or printed. See, e. g., FOX v. 
WASHINGTON, 236 U. S. 273, 277, 59 L. ed. 573, 575, 
35 S. Ct. 383; CHAPLINSKY v. NEW HAMPSHIRE, 
315 U. S. 568, 86 L. ed. 1031, 62 S. Ct. 766. Such an 
expansive interpretation of the constitutional guarantees 
of speech and press would make it practically impossible 
ever to enforce laws against agreements in restraint of 
trade, as well as many other agreements and conspir­
acies deemed injurious to society.”

Unless the petitioners had a right, along with their associ­
ates, to come in and take possession of a private owner’s 
property, then this portion of petitioners’ argument could 
not possibly be sustained.

VI

CONCLUSION

It is not the contention of the State of North Carolina that 
property rights cannot be regulated. However, what the 
petitioners demand in this case goes much further towards 
the abridgement of property and indeed towards the sociali­
zation of property than anyone has ever thought proper 
since this Nation secured its independence in the American 
Revolution. If this Court grants the request of petitioners 
then the owner of the bare legal title of property will be



48

subjected to such intense social regulation that it will be 
analogous to property held in the corporative state.

When this Court decided BROWN v. MISSISSIPPI, 297 
U. S. 278, 56 S. Ct. 461, 80 L. ed. 682, the members of this 
Court no doubt never dreamed that a course of action had 
been initiated that would lead to such expansive federal re­
view of state criminal cases. The logic of petitioners in this 
case, if sustained, will not leave any place where people of 
the same tastes, affinities, congenialities and race can meet 
together in a club, in the home, or any other place of assem­
bly because all of these places are to some extent regulated 
by the state.

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 manager 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 stockroom over the protest 
of the management? Suppose private proprietors are com­
pelled to sell to petitioners, at what price must they sell? If 
a private proprietor 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 unless the Court thinks we should have a 
completely socialized state. There should be left to an in­
dividual 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 language 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



49

concomitants of that state, there must be some stage 
in the process 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.”

Under the decisions of this Court it is abundantly clear 
that state action, as contemplated by the Fourteenth Amend­
ment, does not include purely private action. (CIVIL 
RIGHTS CASES, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835; 
UNITED STATES v. CRUIKSHANK, 92 U. S. 542, 23 L. ed. 
588; VIRGINIA v. RIVES, 100 U. S. 313, 25 L. ed. 667; EX 
PARTE VIRGINIA, 100 U.S. 339, 25 L. ed. 676; CORRIGAN 
v. BUCKLEY, 271 U. S. 323, 46 Sup. Ct. 521, 70 L. ed. 969)

We respectfully submit that the Supreme Court of North 
Carolina decided this case in a valid and constitutional man­
ner and should be upheld.

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



■

'



TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 11

JOHN THOMAS AVENT, ET AL., PETITIONERS,

v s .

NORTH CAROLINA.

ON WKIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF NORTH CAROLINA

PETITION FOR CERTIORARI FILED MAY 4, 1961 
CERTIORARI GRANTED JUNE 25, 1962





SUPREME COURT OF THE UNITED STATES

JOHN THOMAS AVENT, ET AL., PETITIONERS,

OCTOBER TERM, 1962

No. 11

v s .
NORTH CAROLINA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF NORTH CAROLINA

I N D E X
Original Print

Record from the Superior Court of Durham County,
State of North Carolina
Indictment (John Thomas Avent) __________ 2 1
Indictment (Lacy Carr ole Streeter) ________  3 2
Indictment (Frank McGill Coleman)_______  4 4
Indictment (Shirley Mae Brown) __________ 5 5
Indictment (Donovan Phillips) ___ _________  6 6
Indictment (Callis Napolis Brown) _________  7 8
Indictment (Joan Harris Nelson) __________ 8 9
Motion to quash indictment and ruling thereon

(Shirley Mae Brown) _________________  10 10
Motion to quash indictment and rulings thereon

(Joan H. Nelson Trumpower) ------------------ 12 13
Plea, jury and verdict ----------------------------  15 15
Judgment and appeal entries --------------------  15 16
Statement of case on appeal_______________  20 20

Record P ress, P rinters, New York, N. Y., August 1, 1962



11 INDEX

Record from the Superior Court of Durham County, 
State of North Carolina—Continued 
State’s evidence:

Testimony of W. K. Boger—
direct --------------------
cross ______________
red irect------------------
recross ____________
redirect ___________

Capt. Cannady—
direct _______ ______
cross ______________
redirect ______ _____

Motion for dismissal as of nonsuit and denial
thereof ____________________________

Motion for dismissal as of nonsuit and denial
thereof ____________________________

Additional motions for dismissal as of nonsuit
and denial thereof ____________________

Defendants’ evidence:
Testimony of Lacy Carrole Streeter—

direct _____________
cross ______________
redirect ___________
recross ________ —----

Donovan Phillips—
direct _____________
cross ______________
redirect ___________

Joan Harris Nelson 
Trumpower—

direct _____________
cross ______________

Callis Napolis Brown-
direct _____________
cross ________ _____
redirect ___________

Prank McGill Coleman—
direct _____________
cross ______________

Original

20
21
23
23
24

24
25
26

26

30

34

35
36 
40 
40

40
41
42

42
44

44
46
46

47 
47

Print

20
21
23
23
24

24
25
26

26

30

33

35
36
38
39

39
40
41

41
43

43
44
45

45
46



INDEX 111

Original Print
Record from the Superior Court of Durham County,

State of North Carolina—Continued 
Defendants’ evidence—Continued 

Testimony of Shirley Mae Brown—
direct ------------------------  48 47
c r o s s _________________  49 47

John Thomas Avent—
d ir e c t ------------------------  49 48
c r o s s _________________  50 49

Renewal of motions and denial thereof-------------  51 50
Charge of the C ourt------------------------------------- 51 50
Motions to set aside verdict, for new trial and

in arrest of Judgment and denials thereof — 69 66
Assignments of erro r -----------------------------------  70 67
Stipulations -------------------------------------------------  72 69
Stipulation as to case on appeal---------------------  74 71

Proceedings in the Supreme Court of the State of
North Carolina--------------------------------------------  76 72

Opinion, Parker, J. -----------------------------------------  76 72
Clerk’s certificate--------------------------------------------- 96 90
Order extending time to file petition for writ of

certiorari ----------------------------------------------------  97 91
Order allowing certiorari — __---------------------------  98 92





1

[fol. 2]
Before Mallard, J., June 30, 1960, Criminal Term, Dur­

ham Superior Court. Defendants Appealed.

IN THE SUPERIOR COURT OF DURHAM COUNTY, 
NORTH CAROLINA

State of North Carolina 
Durham County:

Be It Remembered that a Superior Court duly and regu­
larly begun and held for the County of Durham, at a time 
and place required by law, to wit, at the Courthouse in 
Durham, on the fifteenth Monday after the first Monday 
in March, 1960, before the Honorable Raymond B. Mallard, 
Judge, duly commissioned, authorized and empowered to 
hold said Court. Whereupon the following proceedings 
were had.

I ndictment-—John Thomas Avent:

S uperior Court 

June Criminal Term, A.D. 1960

State of North Carolina 
Durham County.

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 inten­
tionally after being forbidden to do so, enter upon the land 
and tenement of S. H. Kress and Co. store located at 
101-103 W. Main Street in Durham, N.C., said S. H. Kress 
and Co., owner, being then and there in actual and peace­
able possession of said premises, under the control of its 
[fol. 3] 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



2

by said W. K. Boger, agent and manager of said owner, 
S. H. Kress and Co., to leave that part of the said store 
reserved for employees and invited guests, willfully and 
unlawfully refused to do so knowing or having reason to 
know that ho 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.

No. 410 
S tate

v.
J ohn T homas A vent CM Age 20 

Student, Chidley Hall, N.C.C.

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
X W. K. Boger, S. H. Kress 

Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury.

I ndictment—Lacy Carrole Streeter

S uperior Court 

June Term, A.D. 1960

State of North Carolina 
Durham County.

The Jurors for the State upon their oath present, That 
Lacy Carrole Streeter, late of the County of Durham, on 
the 6th day of May, in the year of our Lord one thousand



3

nine hundred and 60, with force and arms, at and in the 
County aforesaid, did unlawfully, willfully and intention­
ally, after being forbidden to do so, enter upon the land 
and tenement of S. H. Kress and Co. store located at 
101-103 W. Main Street in Durham, N. C., said S. H. Kress 
and Co., owner, being then and there in actual and peace­
able possession of said premises, under the control of its 
[fol. 4] manager and agent, W. Iv. 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 Co., to leave that part of the said store 
reserved for employees and invited guests, willfully and 
unlawfully refused to do so knowing or having reason to 
know that he the said Lacy Carrole Streeter, 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.

No. 485 
S tate

v.
L acy Carkole S treeter (CM) 

Age 24 222 NC College

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
W. K. Boger % H. S. Kress 

Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury.



4

I ndictment—Frank McGill Coleman

S uperior Court 

June Criminal Term, A.D. 1960

State of North Carolina 
Durham County.

The Jurors for the State upon their oath present, That 
Frank McGill Coleman, 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 intention­
ally after being forbidden to do so, enter upon the land 
and tenement of S. H. Kress and Co. store located at 
101-103 W. Main Street in Durham, N.C., said S. H. Kress 
[fol. 5] 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. H. Kress and Co., to leave that part of the said store 
reserved for employees and invited guests, willfully and 
unlawfully refused to do so knowing or having reason to 
know that he the said Frank McGill Coleman, 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.



No. 425 
S tate 

v.

5

F rank McGill Coleman (WM) 
Age 22 2219 W. Club Blvd.

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
W. Iv. Boger—S. H. Kress 
A. P. Lockamy, Officer

Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury.

I ndictment— S hirley Mae B rown 

S uperior Court

June Criminal Term, A. D. 1960

State of North Carolina 
Durham County

The Jurors for the State upon their oath present, That 
Shirley Mae Brown, 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 intention­
ally, after being forbidden to do so, enter upon the land 
[fol. 6] and tenement of S. H. Kress and Co. store located 
at 101-103 W. Main Street in Durham, N. C., 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. H. Kress and Co., to leave that part of the said store 
reserved for employees and invited guest, willfully and



6

unlawfully refused to do so knowing or having reason to 
know that he the said Shirley Mae Brown, 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.

No. 418 
S tate

v.
S hirley Mae B rown (CF) Age 19 

Student—206 Pilot St.

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
X W. K. Boger—S. H. Kress 

Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury. 

I ndictment— Donovan Phillips 

S uperior Court

June Criminal Term, A. D. 1960.

State of North Carolina 
Durham County.

The Jurors for the State upon their oath present, That 
Donovan Phillips, 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 intention- 
[fol. 7] ally, after being forbidden to do so, enter upon



7

the land and tenement of S. H. Kress and Co. store lo­
cated at 101-103 W. Main Street in Durham, N. C., said 
S. H. Kress and Co., owner, being then and there in actual 
and peaceable possession of said premises, under the con­
trol 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 owmer, 
S. H. Kress and Co., to leave that part of the said store 
reserved for employees and invited guests, willfully and 
unlawfully refused to do so knowing or having reason to 
know that he the said Donovan Phillips, 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.

No. 472 
S tate

v.
D onovan P hillips (CM) Age 19 

22 N. C. College

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
X W. K. Boger—S. H. Kress

T. B. Seagroves—Officer 
C. J. Brown “
E. S. Batten

Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury.



8

I ndictment—Callis Napolis Brown 

S uperior Court

June Criminal Term, A. D. 1960.

State of North Carolina 
Durham County.

The Jurors for the State upon their oath present, that 
[fol. 8] Callis Napolis Brown, late of the County of Dur­
ham, 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 Co. store located 
at 101-103 W. Main Street in Durham, N. C., 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. H. 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. Iv. Boger, agent and manager of said owner, S. H. 
Kress and Co., to leave that part of the said store re­
served for employees and invited guests, willfully and un­
lawfully refused to do so knowing or having reason to 
know that he the said Callis Napolis Brown, 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.

Murdock, Solicitor.
See Stipulation No. 3, infra.



9

No. 416 
S tate

v.
Callis N apolis B rown (CM) 
Age 21 Student 206 Pilot St.

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses:
T. B. Seagroves—Officer 

X W. K. Boger—S. H. Kress 
Those marked X sworn by the undersigned Foreman, 

and examined before the Grand Jury, and this bill found 
X A True Bill.

G. II. Campbell, Foreman Grand Jury.

I ndictment—Joan Harris Nelson

S uperior Court 

June Criminal Term, A.D. 1960

State of North Carolina 
Durham County.

The Jurors for the State upon their oath present, That 
Joan Harris Nelson, late of the County of Durham, on 
the 6th day of May, in the year of our Lord one thousand 
[fol. 9] 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 Co. store located 
at 101-103 W. Main Street in Durham, N. C., 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. H. 
Kress and Co., to leave that part of the said store reserved



10

for employees and invited guests, willfully and unlawfully 
refused to do so knowing or having reason to know that 
he the said Joan Harris Nelson, 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.

Murdock, Solicitor.
See Stipulation #3, infra.

No. 467 
S tate

v.
J oan H arris N elson WF Age 18 
Student—Southgate Dorm. Room 

230—Duke Univ.

Indictment Various Cases 
Trespass.............. , Pros.

Witnesses: X W. K. Boger—S. H. Kress 
Those marked X sworn by the undersigned Foreman, 
and examined before the Grand Jury, and this bill found 
X A True Bill.

G. H. Campbell, Foreman Grand Jury.

EXCEPTION # 1 :
Defendants except to the Court’s ruling in overruling 

[fol. 10] the following Motion to Quash the Indictments.

In the S uperior Court of D urham County

Motion to Quash I ndictment (Shirley Mae Brown)— 
and Ruling Thereon

Mr. McKissick: Now comes the defendant Shirley Mae 
Brown, being a Negro citizen of Durham County and the 
United States of America, and herein makes the following 
Motion:



11

That the Indictment charging this defendant with simple 
trespass based upon G. S. 14-134 be quashed for the reason 
that G. S. 14-134 is hereby being unconstitutionally applied 
to this defendant, on the following grounds:

1. That this defendant, while using the facilities of the 
S. H. Kress and Company, duly licensed by the City and 
County of Durham for the purpose of carrying on a busi­
ness open to the general public, which this defendant is a 
part of, was charged with trespass, while being in said 
public place, on account of her race and color, which crim­
inal charge is in violation of the Fourteenth Amendment 
to the United States Constitution and Article I, Section 17 
of the Constitution of the State of North Carolina, in that 
this defendant has been denied the equal protection and 
due process of the laws as set forth in the two constitutional 
provisions as hereinbefore set forth.

2. And for the further reason that the S. H. Kress and 
Company has been duly licensed by the City and County 
of Durham, and said license does not grant the owner of 
said Company the privilege to discriminate against citizens 
of the City and County of Durham on account of race and 
color, and the State, by arresting said defendant under 
G. S. 14-134, further violated defendant’s rights as guaran­
teed him under the Fourteenth Amendment to the Con­
stitution of the United States of America, and Article I, 
Section 17 of the Constitution of the State of North Caro­
lina.
[fol. 11] 3. That the provisions of North Carolina Gen­
eral Statutes 14-134 is unconstitutional in that it is vague 
and indefinite because the statute itself does not require 
the possessor or the person in possession to properly iden­
tify himself to the accused. Criminal statutes must be rea­
sonable and clear in order to deprive a person of his liberty 
on the grounds that the accused violated a criminal statute 
and to arrest a person pursuant to an indefinite and vague 
statute is a violation of his constitutional rights guaran­
teed under the due process and equal protection clause, 
Article I, Section 17 of the Constitution of the State of 
North Carolina, and the Fourteenth Amendment to the 
Constitution of the United States.



12

4. That the State of North Carolina, by the use of its 
police power, through an officer of the Durham City Police 
Department, in arresting this Negro defendant pursuant 
to North Carolina Statutes, Chapter 14, Section 134, was 
unconstitutional in that the arrest was a denial of due 
process and equal protection of the laws guaranteed by 
Article I, Section 17 of the Constitution of North Carolina, 
and the Fourteenth Amendment to the Constitution of the 
United States, because the arrest was made in aiding the 
possessor of S. H. Kress and Company, which is open to 
the public, in carrying out possessor’s whims and caprices 
against serving members of the Negro race on the same 
basis as members of other races, all of whom have been 
invited to use said establishment, solely on the basis of 
race and color.

5. That this Negro defendant, who was on the premises 
of S. H. Kress and Company pursuant to an invitation to 
the general public by the establishment, was denied use of 
said establishment on the same basis as other members of 
the public, solely because of his race and color, and having 
been arrested by the State of North Carolina through the 
Durham Police Department under North Carolina G. S. 
14-134  for attempting to exercise his right to equal treat- 
[fol. 12] ment as an invitee of S. H. Kress and Company 
solely because of his race and color was a denial of due 
process and equal protection of the laws as guaranteed by 
Article I, Section 17 of the Constitution of North Carolina, 
and the Fourteenth Amendment to the Constitution of the 
United States.

This 30th day of June, 1960.
Respectfully submitted,

F. B. McKissick, C. 0. Pearson, W. A. Marsh, Jr., 
L. C. Berry, Jr., M. Hugh Thompson, W. G. 
Pearson, II., Counsel for Defendant.

The Court: Motion denied.
Exception: See Stipulation No. 3, infra.

EXCEPTION #1.



13

EXCEPTION # 2 :
Defendants except to the Court’s ruling in overruling 

the following Motion to Quash the Indictments.

I n the S uperior Court of D urham County

Motion to Quash I ndictment (Joan H. Nelson Trumpower) 
—and Denial Thereof

Mr. McKissiek: Now comes the defendant Joan H.
Nelson Trumpower, being a White citizen of Durham 
County and the United States of America, and herein 
makes the following Motion:

That the Indictment charging this defendant with simple 
trespass based on G. S. 14-134 be quashed for the reason 
that G. S. 14-134 is hereby being unconstitutionally applied 
to this defendant on the following grounds:

1. That this defendant, while using the facilities of the 
S. H. Kress and Company, duly licensed by the City and 
County of Durham and the State of North Carolina for 
the purpose of carrying on a business open to the general 
public, which this defendant is a part of, was charged with 
trespass, while being in said public place, on account of 
[fol. 13] her association with members of the Negro race, 
which criminal charge is in violation of the Fourteenth 
Amendment to the United States Constitution and Article 
I, Section 17 of the Constitution of the State of North 
Carolina, in that this defendant has been denied the equal 
protection and due process of the laws as set forth in the 
two constitutional provisions as hereinbefore set forth.

2. And for the further reason that the S. H. Kress and 
Company has been duly licensed by the City and County 
of Durham, and said license does not grant the owner of 
said Company the privilege of discriminating against white 
citizens of the City and County of Durham on account of 
association with Negroes, and the State, by arresting said 
white defendant under G. S. 14-134, further violated defen­
dant’s right as guaranteed her under the Fourteenth 
Amendment to the Constitution of the United States of



14

America and Article I, Section 17 of the Constitution of 
the State of North Carolina.

3. That the provisions of North Carolina General Stat­
utes 14-134 is unconstitutional in that it is vague and 
indefinite, because the statute itself does not require the 
possessor or the person in possession to properly identify 
himself to the accused. Criminal statutes must be reason­
able and clear in order to deprive a person of his or her 
liberty on the grounds that the accused violated a criminal 
statute and to arrest a person pursuant to an indefinite 
and vague statute is a violation of his constitutional rights 
guaranteed under the due process and equal protection 
clause, Article I, Section 17, of the Constitution of the 
State of North Carolina, and the Fourteenth Amendment 
to the United States Constitution.

4. That the State of North Carolina, by the use of its 
police power, through an officer of the Durham County 
Police Department, in arresting this white defendant, who 
[fol. 14] was associating with Negroes, pursuant to North 
Carolina General Statutes, Chapter 14, Section 134, was 
unconstitutional in that the arrest was a denial of due 
process and equal protection of the laws guaranteed by 
Article I, Section 17 of the Constitution of the State of 
North Carolina, and the Fourteenth Amendment to the 
Constitution of the United States, because the arrest was 
made in aiding the possessor of S. H. Kress and Company, 
which is open to the public, in carrying out possessor’s 
whims and caprices against serving members of the white 
race who associated with Negroes on the same basis as 
members of other races, all of whom have been invited 
to use said establishment, solely on the basis of the fact 
that they were associating with Negroes.

5. That this white defendant who was on the premises 
of S. H. Kress and Company pursuant to an invitation 
to the general public by the establishment were denied use 
of said establishment on the same basis as other members 
of the public, solely because she was associated with Negroes 
and having been arrested by the State of North Carolina 
through the Durham County Police Department under



15

North Carolina G. S. 14-134 for attempting to exercise her 
rights to equal treatment as invitee of S. H. Kress and 
Company solely because she was associating with Negroes, 
a denial of due process and equal protection of the laws 
as guaranteed by Article I, Section 17 of the Constitution 
of North Carolina, and the Fourteenth Amendment to the 
Constitution of the United States.

This the 30th day of June, 1960.
Respectfully submitted,

F. B. McKissick, C. 0. Pearson, W. A. Marsh, Jr., 
L. C. Berry, Jr., M. Hugh Thompson, W. G. Pear­
son, II.

Court: Motion denied.
Exception: See Stipulation No. 4, infra.

EXCEPTION #2.

[fol. 15]
l x  the S uperior Court of D urham County 

P lea, J ury and V erdict

John Thomas Avent, Callis Napolis Brown, Shirley Mae 
Brown, Frank McGill Coleman, Joan Harris Nelson, Dono­
van Phillips, and Lacy Carrole Streeter, by and through 
their attorneys F. B. McKissick, C. 0. Pearson, W. G. Pear­
son, William A. Marsh, Jr., L. C. Berry, Jr., and M. Hugh 
Thompson, enter a plea of Not Guilty in each case. The 
cases were consolidated for the purpose of trial.

These cases were called at the June 27, 1960, Term for 
the purpose of trial and the defendants pleaded Not Guilty 
as charged in the Bills of Indictment, and thereupon a Jury 
was properly SAvorn and impaneled.

On the first day of July, 1960, the Jury heretofore chosen, 
sworn and impaneled and sitting together in this case to 
hear the evidence of the State and the evidence of the 
defendants, argument of counsel, and the charge of the 
Court, and said for its verdict that the defendants John 
Thomas Avent, Callis Napolis Brown, Shirley Mae Brown,



16

Frank McGill Coleman, Joan Harris Nelson, Donovan 
Phillips, and Lacy Carrole Streeter, and each of them, are 
Guilty as charged.

I n  the S uperior Court of D urham County

J udgment and A ppeal E ntries

The Court: Case No. 410, John Thomas Avent. Are 
you one of the leaders?

John Thomas Avent: I don’t know what you mean by 
leader.

The Court: Judgment of the Court is that the defendant 
be imprisoned in the common jail of Durham County for 
a period of fifteen (15) days.

Defendant gives notice of appeal to the Supreme Court 
of North Carolina. Notice of appeal given in open court. 
Further notice waived. Appearance bond fixed at $300.00. 
[fol. 16] Appeal bond for cost is fixed at $150.00. Statu­
tory time prevails for the preparation of statement of case 
on appeal unless otherwise agreed to by the Solicitor.

The Court: Case No. 418, Shirley Mae Brown. Are you 
one of the fourteen leaders?

Shirley Mae Brown: I am one of the followers.
The Court: You are one of the followers. Judgment of 

the Court is that the Prayer for Judgment be continued for 
a period of two years.

Defendant gives notice of appeal, in open court, to the 
Supreme Court of North Carolina. Further notice waived. 
Appearance bond fixed at $300.00. Appeal bond for cost is 
fixed at $150.00. Statutory time prevails for the prepara­
tion of statement of case on appeal unless otherwise agreed 
to by the Solicitor.

The Court: Case No. 425, Frank McGill Coleman. Are 
you one of the leaders?

Frank McGill Coleman: Yes, that’s true.
The Court: That’s true. What’s true?
Frank McGill Coleman: That I am one of the leaders.
The Court: You have been connected with all this dis­

turbance down the street since February 8th of this year?



17

Frank McGill Coleman: If you describe it in that man­
ner. Yes, sir, I have been connected.

The Court: Well, whatever it is that has been going on 
down the street in the second block from here to my left?

Frank McGill Coleman: Yes, sir.
The Court: Judgment of the Court is that the defendant 

be imprisoned in the common jail of Durham County for 
a term of thirty (30) days to be assigned to work under 
the supervision of the State Prison Department.

Defendant gives notice of appeal, in open court, to the 
Supreme Court of North Carolina. Further notice waived. 
Appearance bond fixed at $500.00. Appeal bond for cost is 
[fol. 17] fixed at $150.00. Statutory time prevails for the 
preparation of statement of case on appeal unless other­
wise agreed to by the Solicitor.

The Court: Case No. 416, Callis Napolis Brown. I be­
lieve you said you were one of the leaders ?

Callis Napolis Brown: Yes, sir.
The Court: And you have been connected with all this 

disturbance or whatever has been going on in the second 
block to my left since February 8th?

Callis Napolis Brown: If that’s the way you want to put 
it.

The Court: Well, is there any other way you want to 
put it?

Callis Napolis Brown: Yes, sir.
The Court: How do you want to put it ?
Callis Napolis Brown: It is not a disturbance.
The Court: Judgment of the Court is the defendant be 

imprisoned in the common jail of Durham County for a 
term of thirty (30) days to be assigned to work under the 
supervision of the State Prison Department.

Defendant gives notice of appeal, in open court, to the 
Supreme Court of North Carolina. Further notice waived. 
Appearance bond fixed at $500.00. Appeal bond for cost is 
fixed at $150.00. Statutory time prevails for the prepara­
tion of statement of case on appeal unless otherwise agreed 
to by the Solicitor.

The Court: Case No. 467, Joan Harris Nelson. Are you 
one of the leaders?



18

Joan Harris Nelson: No, sir.
The Court: What?
Joan Harris Nelson: No, I am not one of the leaders.
The Court: Prayer for judgment continued for a period 

of two years.
Defendant gives notice of appeal, in open court, to the 

Supreme Court of North Carolina. Further notice waived, 
[fol. 18] Appearance bond fixed at $300.00. Appeal bond for 
cost is fixed at $150.00. Statutory time prevails for the 
preparation of statement of case on appeal unless other­
wise agreed to by the Solicitor.

The Court: Case No. 472, Donovan Phillips. Donovan, 
are you one of the leaders?

Donovan Phillips: Yes, sir.
The Court: Sir?
Donovan Phillips: Yes, sir.
The Court: Are you bragging or ju s t .. .
Donovan Phillips: No, sir.
The Court: Are you one of the same kind of leaders as 

Coleman and Brown?
Donovan Phillips: Yes, sir.
The Court: Equal authority with them for the dis­

turbance that’s been going on up there?
Donovan Phillips: Yes, sir.
The Court: You were in this conspiracy or plan or 

agreement the night before to go and do these things?
Donovan Phillips: Yes, sir.
The Court: You were one of the leaders in the thing?
Donovan Phillips: Yes, sir.
The Court: Your name is Donovan Phillips?
Donovan Phillips: Donovan Phillips.
The Court: Judgment of the Court is that the defendant 

be imprisoned in the common jail of Durham County for a 
term of thirty (30) days to be assigned to work under the 
supervision of the State Prison Department.

Defendant gives notice of appeal, in open court, to the 
Supreme Court of North Carolina. Further notice waived. 
Appearance bond fixed at $500.00. Appeal bond for cost 
is fixed at $150.00. Statutory time prevails for the prepara­



19

tion of statement of case on appeal unless otherwise agreed 
to by the Solicitor.

The Court: Case No. 485, Lacy Carrole Streeter. Are you 
one of the leaders?

Lacy Carrole Streeter: Yes, sir.
[fol. 19] The Court: You boys are different from Avent; 
you have different authority in this group than Avent did, 
didn’t you? . . . Are you one of the fourteen leaders in this 
group?

Lacy Carrole Streeter: Yes, sir.
The Court: Are you one of them that went back and got 

arrested again as soon as you were released down here?
Lacy Carrole Streeter: I have only been arrested once.
The Court: One time . . . And you have been arrested 

twice, haven’t you? (As to Donovan Phillips)
Donovan Phillips: Yes, sir.
The Court: And Brown, you have been arrested twice ?
Callis Napolis Brown: Yes, sir.
The Court: And Coleman, you have been arrested twice?
Frank McGill Coleman: No, sir.
The Court: You have only been arrested once?
Frank McGill Coleman: Yes, sir.
The Court: And Streeter, you say your participation 

and your part of all of this, that that you have been in, 
has been equal to Brown’s and the other two gentlemen, but 
superior to that of Avent?

Lacy Carrole Streeter: No. I t’s been equal to Brown’s 
and Phillips’.

The Court: But superior to that of Avent?
Lacy Carrole Streeter: I  believe so.
The Court: Those who lead have the greater responsi­

bility and the greater punishment. However, you have only 
been arrested one time.

Judgment of the Court is that the defendant be impris­
oned in the common jail of Durham County for a term of 
twenty (20) days.

Defendant gives notice of appeal, in open court, to the 
Supreme Court of North Carolina. Further notice waived. 
Appearance bond fixed at $350.00. Appeal bond for cost



20

is fixed at $150.00. Statutory time prevails for the prep­
aration of statement of case on appeal unless otherwise 
agreed to by the Solicitor.

[fol. 20]
I n the S uperior Court of D urham County

Statement of Case on Appeal
This is a criminal trial on bills of indictment charging 

the defendants with entering and trespassing upon the land 
of another, without license, having been forbidden to do so. 
The cases have been consolidated for trial; said bills of 
indictment appearing in the record proper. The cases were 
tried June 30, and July 1, 1960, before his Honor Raymond
B. Mallard, the Judge presiding at the Criminal Term of 
Superior Court of Durham County, North Carolina, and 
the Jury, and the following proceedings were had.

The following witnesses, being duly sworn, testified as 
follows:

S tate’s E vidence

W. K. B oger :

Direct examination.

By Mr. Murdock:
I live in Durham. I am the manager of the local store 

operated by S. H. Kress & Company. We have but one 
store in Durham. The store is located on the corner of 
Main and Mangum Sts. The address is 101-103 West Main 
Street. On May 6, 1960, I was the manager of this store. 
There was no other official, agent or officer of the com­
pany over me in Durham. I had complete control and 
all of the authority over this store and the property of 
S. H. Kress here in Durham; property located at 101-103 
West Main Street belongs to S. H. Kress & Company.

I was in the store on May 6, 1960, and the defendants 
John Thomas Avent, Callis Napolis Brown, Shirley Mae 
Brown, Frank McGill Coleman, Joan Harris Nelson, Dono­



21

van Phillips, and Lacy Carrole Streeter were also in the 
store on that date. They were in the vicinity of the lunch­
eonette department. That department is located in the 
rear of the basement on the basement floor. We have two 
selling floors and three stockroom floors. In all, there are 
[fol. 21] five floors in the building. On May 6, 1960, the 
luncheonette was open for the purpose of serving customers 
food. Customers on that date were invited guests and em­
ployees. We had signs posted over that department stat­
ing that the department was being operated for employees 
and guests only. We had iron railings separating this 
department from other departments in the store. There 
were chained entrances on that date.

On May 6,1960, these seven defendants were in our store. 
I had conversations with every one of them. I very nicely 
stated that the department was open for employees and 
invited guests, and I said to them that I am sorry, I am 
going to have to ask you to leave. Before they were seated 
at the lunch department, I asked them not to be seated, 
and when they were seated, I asked them to leave the 
premises. They refused to leave until they were served. 
I called an officer of the City Police Department. The 
officer asked them to leave and they still would not leave, 
so he arrested them and charged them with trespassing, 
and that is the charge upon which they are being tried 
today. At that time, I was the manager and in charge 
of the property of the Kress Company, and, under the cir­
cumstances, I did not want them on the premises. Five 
of these defendants are Negro, and two of the defendants 
are white.

Cross examination.

By Mr. C. 0. Pearson:
Mr. Boger: I spell my name B-o-g-e-r. I have worked 

for the Kress Company thirty years. Before coming to 
Durham, I worked in Jacksonville, Florida. When I came 
to Durham, these sit-down demonstrations were in progress. 
The fountain was closed when I came to Durham, but I 
did not come here for the purpose of opening up the foun­



22

tain. I had a conversation with these defendants, both 
white and Negro, and I spoke to them in a nice manner 
and they spoke to me in a nice manner. There was no 
ill feeling on my part, and there was no ill feeling on their 
[fol. 22] part. There was a little loud talking on the part 
of the defendants, but, generally, they were orderly and 
quiet.

Kress Company operates stores all over the country. 
It is the policy of our store to wait on customers dependent 
upon the customs of the community. The object of oper­
ating our store is definitely to make a profit. We have a 
stand-up counter on the first floor, and we serve Negroes 
and whites at that stand-up counter. We also serve white 
people who are accompanied by Negroes at that stand-up 
counter. We did not have a sign over our entrances which 
said in effect that Kress Company does not solicit the 
patronage of Negro people. That has never been necessary. 
Up until that time it was not necessary to forbid any 
Negroes from coming into our store. I  don’t know exactly 
how many counters we have in Ihe store, but I could give 
you a rough estimate. It is the policy of our store to op­
erate all counters in the interest of the customs of the 
community. I think we have 50 counters in the store. It 
it the policy of Kress to accept patronage of Negroes at 
those 50 counters. It is also the policy of Kress to accept 
the patronage of white people accompanied by Negroes 
at those fifty counters.

In the interest of public safety it is our policy to refuse 
to serve Negroes at the luncheonette downstairs in our 
seating arrangement. It is also the policy of Kress to 
refuse the patronage of white people in the company of 
Negroes at that counter. Even if Negroes accompanied by 
white people were orderly at our luncheonette because of 
the policy of the community we would not serve them, and 
that was our policy prior to May 6, 1960. We had signs 
all over the luncheonette to the effect that it was open for 
employees and invited guests. Mr. Pearson, I do not con­
sider you as an invited guest, under the circumstances right 
now. I do consider Mr. Murdock an invited guest under 
the circumstances. White people are considered guests. 
White people accompanied by Negroes are not considered



23

[fol. 23] guests. Our employees did not have that right to 
invite guests to our luncheonette. I was the person who 
invited the guests. I did not send out invitations. It is 
not the custom of the community to serve Negroes in the 
basement luncheonette, and that is why wTe put up the 
signs, “Invited Guests and Employees Only.”

Had these two young people (indicating the white defen­
dants) come into the store on that date alone, under the 
circumstances I would not have served them. Had they 
come into the store on May 4,1960,1 would not have served 
them for the reason that they made every effort to boycott 
my store. I first came to Durham on March 21. I do not 
know all of the white people in Durham, and I do not know 
all the white people at Duke University. I have seen these 
people before May 6, 1960. I would serve this young lady 
(indicating the white female defendant), but I asked her 
to leave when she gave her food to a Negro. She was my 
invited guest at that time, up until the time that I asked 
her to leave. There are two entrances to my store on 
Main Street. I have never put up a sign over either one 
of those entrances to the effect that they would read “For 
Colored People or for White People.”

There were no police in the store at the time these defen­
dants came in. I did not seek police protection.

Redirect examination.

By Mr. Murdock:
These seven defendants were not employees of our store 

on May 6, 1960. They did not have any authority or per­
mission to be in that part of the store that I asked them 
to leave. It was the conduct of the defendant Joan Harris 
Nelson, the white girl, that made me ask her to leave.

Recross examination.

By Mr. C. 0. Pearson:
I asked her to leave because she gave her food to a 

Negro. I told her that I would be glad to give her a refund 
for what she paid for the food. And I told her if she



24

[fol. 24] wanted to feed this person, if she was hungry, I 
could make arrangements for her to go back and feed her, 
but I did not want a disturbance caused at my lunch de­
partment, and she refused to do so; therefore, I had to ask 
her to leave.

Redirect examination.

By Mr. Murdock:
I have been with the S. H. Kress Company for thirty 

years. I was assistant manager in the Durham store for 
three years: 1937, 1938, and 1939. I ran my first store in 
Oklahoma.

Capt. Cannady:

Direct examination.

By Mr. Murdock:
I am Capt. Cannady of the Durham Police Department, 

and I was Captain on May 6, 1960. As a result of a call 
to our Department, I went to S. H. Kress and Company. 
I saw these seven defendants, that is six of them, with 
the exception of Mr. Coleman. They were seated at the 
lunch counter at S. H. Kress. I heard Mr. Boger ask each 
of these defendants to leave and they refused to do so. I 
then advised them that they could either leave or they 
would be arrested for trespassing. They refused to leave 
and as a result I charged them with trespassing.
Exception # 3: Defendants except to the Court’s ruling on 
the following:

Q. You know that Mr. Boger was the manager of the 
store?

A. Yes, sir.
Q. And they knew that he was and had been so told by 

you and by him?
A. Yes, sir.
Q. That he was manager and in charge?
A. Yes, sir.



25

Mr. Marsh: I object. I  can’t hear the questions and I 
can’t hear the answers.

Court: Speak a little louder then, Mr. Solicitor and Mr. 
Witness.

Mr. M arsh: I want her to read back the last questions 
that Mr. Murdock asked.
[fol. 25] Court: Read them to him, Miss Nelda.

Reporter: “Q. You knew that Mr. Boger was the man­
ager of the Store?

A. Yes, sir.
Q. And they knew that he was and had been so told by 

you and by him?”
Mr. Marsh: Now, that I object to as leading the witness.
Court: The objection comes too late. Put in this. The 

objection comes after the witness has answered the ques­
tion and it comes too late.

Mr. Marsh: I couldn’t hear the question, may it please 
the Court.

Court: Well, there are five others sitting there and there 
was no objection made.

Mr. Marsh: Motion to strike the answer relative to the 
last question asked by Mr. Murdock.

Motion denied—Exception #3.

Cross examination.

By Mr. Marsh:
Capt. Cannady: I asked six of these defendants to leave, 

and Mr. Boger asked them to leave in my presence. I have 
been a member of the Durham Police Department for ten 
years. We make an arrest when an offense is committed 
in our presence. After Mr. Boger asked these defendants 
to leave, in my presence, and they refused to leave, that 
constituted trespassing. 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.

Capt. Seagroves and I went to the store, that is Kress’ 
store, after we received the call from the radio operator 
that Mr. Boger stated that there was a disturbance at the



2 6

store. When we arrived, we found Mr. Brown seated at the 
lunch counter. At that time, he was the only one there. 
We arrested Mr. Brown and started back to the station, 
but before we could get back to the street, someone hollered, 
“You had better go back.” So I went back downstairs, and 
it appeared that there were 30 or 40 seated there. After 
Mr. Boger told these defendants to leave, I arrested them 
[fol. 26] for trespassing. Capt. Seagroves and I were the 
only officers to begin with. However, I called for another 
car, and two officers came in that car. The only reason for 
the arrest is that I felt that they were trespassing. Other­
wise, their conduct and deportment was very good.

Redirect examination.

By Mr. Murdock:
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.

I n the S uperior Court of D urham County 

Exception # 4 :

Motion for D ismissal as of N onsuit and D enial T hereof

Mr. McKissick: Now comes the defendant, through his 
or her attorneys, and moves the Court to dismiss this action 
as of nonsuit for the following reasons:

T. That the evidence shows that the defendant is a citi­
zen of the State of North Carolina and of the United States, 
and entered S. H. Kress and Company for the purpose of 
shopping and using the facilities of said Store as are nor­
mally used by persons of the white race; that the defen­
dant was arrested for trespass and when said defendant 
took a seat and requested service at the lunch counter of 
the S. H. Kress and Company Store; that said defendant 
had purchased other articles in said Store and had entered 
upon the premises lawfully and in an orderly manner; that 
said defendant had been trading at said store for a long 
period of time prior to said arrest.



27

II. That this action should be nonsuited in that the Court 
lacks jurisdiction as required under the I  ourteenth Amend­
ment to the United States Constitution to enforce G. S. 
14-134 (Trespass), as here sought to be applied, in that the 
enforcement of G. S. 14-134 constitutes, (a) an arrest by 
the Police Department, which action, being a State action, 
[fol. 27] is in violation of this defendant’s rights as guar­
anteed by the Fourteenth Amendment to the United States 
Constitution.

III. That the enforcement of the Trespass Law, G. S. 
14-134, under the circumstances as presented by the evi­
dence in this case, to wit: The defendant, after being in­
vited on the premises of S. H. Kress and Company gen­
erally, as alleged in the indictment herein, this defendant 
is charged is violative of defendant’s constitutional rights,
(a) under the privilege and immunities clause; (b) equal 
protection of the law clause; and (c) the due process clause 
of the Fourteenth Amendment to the United States Con­
stitution.

IV. That the S. H. Kress and Company is operating its 
lunch counter pursuant to the authority granted by North 
Carolina General Statutes 72-46, and therefore cannot deny 
service to this defendant because of his race and color, 
as said statute has no standard based upon race. That 
by refusing to serve this defendant, said Store has vio­
lated the defendant’s rights to the equal protection of 
laws clause, and the due process clause of the Fourteenth 
Amendment to the United States Constitution in denying 
this defendant service; that the refusal to serve this defen­
dant is in violation of his rights under the Civil Rights 
Act of 1866: “All citizens of the United States shall have 
the same right, in every State and territory, as in enjoyed 
by white citizens thereof to inherit, purchase, lease, sell, 
hold and convey real and personal property,” and that the 
refusal to serve this defendant is violative of the valuable 
property right existing in and belonging to said defendant.

V. That this defendant, while using the facilities of the
S. H. Kress and Company duly licensed by the City of 
Durham and County of Durham for the purpose of carry­



28

ing on a business open to the general public, which this 
defendant is a part of, was charged with trespass, while 
[fob 28] being in said public place, on account of his race 
and color, which criminal charge is in violation of the Four­
teenth Amendment to the United States Constitution and 
Article I, Section 17 of the Constitution of the State of 
North Carolina, in that this defendant has been denied 
the equal protection and due process (clauses) of the laws 
as set forth in the two constitutional provisions as here­
inbefore set forth.

VI. That for the further reason that the S. H. Kress 
and Company has been duly licensed by the City of Dur­
ham, County of Durham, and said license does not grant 
the owner of said Company the privilege of discriminating 
against citizens of the City of Durham, and the County of 
Durham, on account of race and color, and the State, by 
arresting said defendant under Gl. S. 14-134, further vio­
lated defendant’s right as guaranteed him under the Four­
teenth Amendment to the Constitution of the United States 
of America, and Article I, Section 17 of the Constitution 
of the State of North Carolina.

VII. That the provisions of North Carolina General 
Statutes 14-134 is unconstitutional in that it is vague and 
indefinite because the statute itself does not require the 
possessor or the person in possession to properly identify 
himself to the accused. Criminal statutes must be reason­
able and clear in order to deprive a person of his liberty 
on the grounds that the accused violated a criminal statute 
and to arrest a person pursuant to an indefinite and vague 
statute is in violation of his constitutional rights guar­
anteed under the due process and equal protection clause, 
Article I, Section 17 of the Constitution of the State of 
North Carolina, and the Fourteenth Amendment to the 
United States Constitution.

VIII. That the State of North Carolina, by the use of 
its police power, through an officer of the Durham City 
[fol. 29] Police Department, in arresting this Negro de­
fendant pursuant to North Carolina General Statutes, 
Chapter 14, Section 134, was unconstitutional in that the



29

arrest was denial of due process and equal protection of 
the laws guaranteed by Article I, Section 17 of the Con­
stitution of North Carolina, and the Fourteenth Amend­
ment to the Constitution of the United States, because the 
arrest was made in aiding the possessor of S. H. Kress 
and Company, which is open to the public, in carrying out 
possessor’s whims and caprices against serving members 
of the Negro race on the same basis as members of other 
races, all of whom have been invited to use said establish­
ment, solely on the basis of race and color.

IX. That this Negro defendant, who was on the prem­
ises of S. H. Kress and Company pursuant to an invitation 
to the general public by the establishment, was denied use 
of said establishment on the same basis as other members 
of the public, solely because of their race and color and 
having been arrested by the State of North Carolina 
through the Durham City Police Department under North 
Carolina G. S. 14-134 for attempting to exercise his right 
to equal treatment as invitee of S. H. Kress and Company 
solely because of his race and color was a denial of due 
process and equal protection of the laws as guaranteed 
him by Article I, Section 17, of the Constitution of North 
Carolina, and the Fourteenth Amendment to the Constitu­
tion of the United States.

X. That the warrant is fatally defective in that it 
fails to allege sufficient possession in W. Iv. Boger and that 
it fails to identify W. Iv. Boger as being the person with 
the authority to evict this defendant.

This 30th day of June, 1960.
Kespectfully submitted:

F. B. McKissick, C. 0. Pearson, W. A. Marsh, Jr., 
[fol. 30] L. C. Berry, Jr., M. Hugh Thompson, 
iv. G. Pearson, II., Counsel for Defendant.

The Court: Motion denied.
Exception: See Stipulation No. 5, infra.

Exception #4.



30

In the S uperior Court or D urham County 

E xception # 5 :

Motion for D ismissal as of N onsuit and D enial T hereof

Mr. McKissick: Now comes the defendant, through his 
or her attorneys, and moves the Court to dismiss this ac­
tion as of nonsuit for the following reasons:

I. That the evidence shows that the defendant is a citi­
zen of the State of North Carolina and of the United States, 
and entered S. H. Kress and Company for the purpose of 
shopping and using the facilities of said store as are nor­
mally used by persons of the white race; that the defendant 
was arrested for trespass when said defendant took a seat 
and requested service at the lunch counter of the S. H. 
Kress and Company Store; that said defendant had pur­
chased other articles in said store and had entered upon 
the premises lawfully and in an orderly manner; that said 
defendant has been trading at said Store for a long pe­
riod of time prior to said arrest.

II. That this action should be nonsuited in that the 
Court lacks jurisdiction as required under the Fourteenth 
Amendment to the United States Constitution to enforce
G. S. 14-134 (Trespass), as here sought to be applied, in 
that the enforcement of G. S. 14-134 constitutes, (a) an 
arrest by the Police Department, which action, being a 
State action, is in violation of this defendant’s rights as 
guaranteed by the Fourteenth Amendment of the United 
States Constitution.
[fol. 31] III. That the enforcement of the Trespass Law,
G. S. 14-134, under the circumstances as presented by the 
evidence in this case, to wit: The defendant, after being 
invited on the premises of S. H. Kress and Company gen­
erally, as alleged in the indictment herein, this defendant 
is charged in violation of defendant’s constitutional rights, 
(a) under the privilege and immunities clause; (b) equal 
protection of the law clause; and (c) the due process clause 
of the Fourteenth Amendment of the United States Con­
stitution.



31

IV. That the S. H. Kress Company is operating its 
lunch counter pursuant to the authority granted by North 
Carolina General Statutes 72-46, and therefore cannot deny 
service to this defendant because of his or her association 
with members of the Negro race on attempting to use the 
eating facilities of S. H. Kress and Company in Durham, 
North Carolina; that by refusing to serve this defendant, 
said Store has violated the defendant’s rights to the equal 
protection of laws clause, and the due process clause of 
the Fourteenth Amendment to the United States Consti­
tution.

V. That this defendant, while using the facilities of the 
S. H. Kress and Company duly licensed by the City of 
Durham and the County of Durham for the purpose of 
carrying on a business open to the general public, which 
this defendant is a part, was charged with trespass, while 
being in said public place, on account of his or her associa­
tion with members of the Negro race, is in violation of the 
Fourteenth Amendment to the United States Constitution 
and Article I, Section 17 of the Constitution of the State 
of North Carolina, in that this defendant has been denied 
the equal protection and due process laws as set forth in 
the two constitutional provisions as hereinbefore set forth.

VI. That for the further reason that the S. H. Kress and 
Company has been duly licensed by the City of Durham, 
[fob 32] County of Durham, and said license does not grant 
the owner of said Company the privilege of discriminating 
against citizens of the City of Durham, and the County of 
Durham, on account of race and color, and the State, by 
arresting said defendant under G. S. 14-134 for his or her 
association with Negroes in attempting to eat on the prem­
ises of S. H. Kress and Company further violated defen­
dant’s rights as guaranteed him, her, under the Fourteenth 
Amendment to the Constitution of the United States of 
America and Article I, Section 17 of the Constitution of 
the State of North Carolina.

VII. That the provisions of North Carolina General 
Statutes 14-134 is unconstitutional in that it is vague and 
indefinite because the statute itself does not require the



32

possessor or the person in possession to properly identify 
himself to the accused. Criminal statutes must be reason­
able and clear in order to deprive a person of his liberty 
on the grounds that the accused violated a criminal statute 
and to arrest a person pursuant to an indefinite and vague 
statute is in violation of his constitutional rights guaran­
teed under the due process and equal protection clauses, 
Article I, Section 17, of the Constitution of the State of 
North Carolina, and the Fourteenth Amendment to the 
Constitution of the United States.

VIII. That the State of North Carolina, by the use of 
its police power, through an officer of the Durham County 
Police Department, in arresting this white defendant pur­
suant to North Carolina General Statutes, Chapter 14, Sec­
tion 134, was unconstitutional in that the arrest was denial 
of due process and equal protection of the laws guaranteed 
by Article I, Section 17 of the Constitution of North Caro­
lina, and the Fourteenth Amendment to the Constitution 
of the United States, because the arrest was made in aiding 
the possessor of S. H. Kress and Company, which is open 
[fol. 33] to the public, in carrying out possessor’s whims 
and caprices against serving members of the Negro race 
or members of the white race associated with them, all of 
whom have been invited to use said establishment, solely 
on the basis of race and color.

IX. That this white defendant, who was on the prem­
ises of S. H. Kress and Company pursuant to an invita­
tion to the general public by the establishment, was denied 
use of said establishment, on the same basis of other mem­
bers of the public, solely because of his or her association 
with members of the Negro race and, having been arrested 
by the State of North Carolina through the Durham City 
Police Department under North Carolina G. S. 14-134 for 
attempting to exercise his or her right to equal treatment 
as invitee of S. H. Kress and Company solely because of 
his or her association with members of the Negro race 
was a denial of due process and equal protection of the 
laws as guaranteed him of her by Article I, Section 17 of 
the Constitution of North Carolina, and the Fourteenth 
Amendment to the Constitution of the United States.



33

X. That the indictment is fatally defective in that it 
fails to allege sufficient possession with W. K. Boger and 
that it fails to identify W. K. Boger as being the person 
with the authority to evict this defendant.

This 30th day of June, 1960.
F. B. McKissick, C. 0. Pearson, W. A. Marsh, Jr., 

L. C. Berry, Jr., M. Hugh Thompson, W. G. 
Pearson, II., Counsel for Defendants.

The Court: Motion denied.
Exception: See Stipulation No. 6, infra.

Exception #5.

[fol. 34]
I n the S uperior Court of D urham County 

Exception #6.

A dditional Motions for D ismissal as of N onsuit 
and D enial T hereof

Mr. McKissick: The indictment charging the defendant, 
a Negro, with the violation of G. S. 14-134, to wit, an 
alleged trespass upon the land after having been forbidden 
to enter is invalid in that the evidence establishes merely 
that the defendant was peacefully upon the premises of 
S. H. Kress and Company, an establishment performing 
an economic function invested with the public interest as 
a customer, visitor, business guest or invitee, and there 
is no basis for the charge recited by the indictment other 
than an effort to exclude the defendant from S. H. Kress 
and Company because of his race or color. Defendant at 
the same time is excluded from equal service that the pre­
ponderant number of other eating establishments in the 
City of Durham, thereby depriving him of liberty without 
due process of law and of the equal protection of the laws 
secured by the Fourteenth Amendment to the United States 
Constitution.

The Court: Motion denied.
Exception: See Stipulations 5 and 6, infra.
Exception #6.



34

Exception # 7 :
Mr. McKissick: That the evidence offered against the 

defendants in support of the indictment charging him with 
trespass establishes that they were at the time of the ar­
rest, and at all times covered by the charge, in peaceful 
exercise of constitutional rights to assemble with others 
for the purpose of speaking and protesting against the 
practice, custom and usage of racial discrimination in S. H. 
Kress and Company, an establishment performing an eco­
nomic function invested with the public interest. That de­
fendants peacefully were attempting to obtain services at 
the facilities of the S. H. Kress and Company in the manner 
which other white persons similarly situated do. And at 
no time were the defendants defiant or in breach of the 
[fol. 35] peace, and was at all times upon an area essen­
tially public. Wherefore, defendants have been denied 
rights secured by the due process and equal protection 
clauses of the Fourteenth Amendment to the United States 
Constitution.

The Court: Motion denied.
Exception: See Stipulations 5 and 6, infra.
Exception #7 .
Exception #8 .

Mr. McKissick: The evidence established that the prose­
cution of the defendants was procured for the purpose of 
preventing them from engaging in peacefully assembly 
with others for the purpose of speaking and otherwise 
peacefully protesting in public places the refusal of the 
preponderant number of stores, facilities and accommoda­
tions open to the public in the City of Durham to permit 
the defendants and other members of defendants’ race from 
enjoying- the access to certain stores, facilities and accom­
modations afforded members of other races, and that by 
this prosecution prosecuting witnesses and arresting officers 
are attempting to employ the aid of the Court to enforce 
racially discriminatory policies contrary to the due process 
and equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States.

The Court: Motion denied.
Exception: See Stipulations 5 and 6, infra.
Exception #8.



35

I n the S uperior Court of D urham County

D efendants’ E vidence

L acy Carrole S treeter:

Direct examination.

By Mr. McKissick:
I am Lacy Carrole Streeter, age 24, address Box 2727, 

North Carolina College. My permanent address is 1401 
West Third Street, Greenville, North Carolina. I am a 
member of the Negro race. I am a senior at North Carolina 
College. I was in S. Ii. Kress store on May 6, 1960. On 
[fol. 36] that date, I went into the store at the first level 
and made a purchase at the paper counter. After making 
the purchase, I went down to the lunch counter and took 
a seat there, and later I was asked to leave the lunch 
counter before receiving service. I have been in Kress 
Store on many occasions prior to May 6, 1960. I stopped 
at the upstairs counter of Kress and I can identify the 
item that I purchased there. The item was a note pad, 
which on the counter with school supplies and office sup­
plies. I received a receipt with my purchase.

(Note pad was introduced as Defendants’ Exhibit A with­
out objection.)

After I made my purchase, I came back toward the front 
entrance and went downstairs to the basement. I went to 
the lunch counter, took a seat and waited to have my order 
accepted by the waitress. The waitress never accepted my 
order. She never approached me. No one ever asked me 
what I was going to purchase. As I was sitting at the lunch 
counter, Mr. Boger said something to the other defendants 
there, and the officers accompanying him would direct them 
to the door near the rear of the counter. No one ever said 
anything to me. I continued to sit at the counter awaiting 
the waitress to take my order.

After Mr. Boger spoke to several of the other students 
there, the police officer approached me and then directed 
me toward the rear of the lunch counter, and I assumed I



36

was being placed under arrest. No one ever asked me to 
leave the lunch counter, neither Mr. Boger nor Capt. Can- 
nady asked me to leave. The officer made no verbal re­
quest for me to leave. He just directed me toward the 
rear of the lunch counter. He did not tell me why he 
wanted me to move over there with the other students.

Cross examination.

By Mr. Murdock:
I have been at North Carolina College for three years, 

and my senior year is coming up. I have been here since 
[fol. 37] 1958. I have been in Kress’ on other occasions, 
maybe sometimes once every two weeks, sometimes once 
a week. I had the occasion to go to Kress’ between Feb­
ruary, 1960, and May 6, 1960. The purpose was to request 
service at the lunch counter. I recall that I requested ser­
vice at the lunch counter on February 8, 1960. I remember 
that occasion, but I don’t recall any one other than that. 
The lunch counter was closed for a long period of time.

I had no other occasion to go into the store during that 
period other than for the purpose of seeking service at 
the lunch counter. I am not familiar with any boycott of 
the store. I was familiar with the people who were walk­
ing in front of the store with signs on them. There were 
numerous signs that they were carrying, but I don’t recall 
any specific one. The purpose of doing that was to pro­
mote or to encourage the service of Negroes at the lunch 
counter. That was the basic purpose of the movement. The 
purpose of carrying these signs was to encourage people 
to shop at the store if they could receive service at all of the 
counters in the store. We were encouraging people to shop 
at the store if they could receive service in the store.

We had been refused service at the lunch counter earlier 
this year. There was more than one occasion. I did not 
know that I was not welcome at the lunch counter. I knew 
that I had not received service there on prior attempts. 
I continued to try to get service there. There were no at­
tempts made to stop me from entering the door. No one 
objected to my entering. I had not been informed that 
there had been any change in the policy of the Company



37

from February up to May 6. My purpose for carrying the 
signs was to encourage people to be received in all sections 
of the store. I bought these pads because I needed them, 
and, secondly, to see if my services or my patronage would 
be accepted on the first floor. I have never been refused 
[fol. 38] service on the first floor. I have never been re­
fused service in any part of the store except the lunch 
counter. I use them for scratch pads. I bought them to 
see if my patronage would be accepted. We had decided, 
that is the students who were taking part in the movement, 
that we would make a purchase. There had been a general 
agreement reached by these students participating to the 
effect that we would make a purchase to see if our patron­
age would be accepted on the first floor.

We have counsel. I have consulted counsel about these 
matters. I had not consulted counsel on the specific point 
of making a purchase. I have consulted with counsel prior 
to making my decision of going to the lunch counter. It 
was not on the advice of counsel that I did this. I walked 
through the normal passageway to get to the lunch counter. 
There was no chain across it. There were others with me 
at the time I entered. I do not recall the exact number. 
There were five or six who accompanied me. There were 
some students already seated there when I arrived. These 
students agreed to make a purchase before attempting to 
gain service at the lunch counter. There were approxi­
mately 35 or 40. The 35 or 40 went to the lunch counter 
within a margin of 35 or 40 minutes. I don’t recall that 
any of them went under the rail to get in.

I didn’t know at the time whether or not I would be 
arrested for trespassing. I did not want to be arrested for 
trespassing. I didn’t think that I would be arrested for 
trespassing. When I entered the door upstairs I wasn’t 
arrested, and I didn’t think that I would be arrested down­
stairs. I went there for service. I expected to be served. 
I had tried on other occasions to be served, but I was re­
fused service. However, I continued to try, and I did not 
know whether or not I would be served. A police officer 
directed me toward an assembly of students. I was never 
ordered to leave or requested to leave by the manager or 
[fol. 39] any other person in charge of the store. I learned



38

that I had been charged with trespassing at the Police 
Station. I asked if I was under arrest, and I asked the 
officer if he knew what we were being charged with, and 
he said he thinks it would be trespassing. Officer Spangler 
told us this while we were in the store. I had enough 
money on my person to buy more than a glass of water. 
I don’t recall how much money I had in my pocket at that 
time. I had as much as fifty cents.

I don’t know whether any arrangements had been made 
for bond for me in the event that I was arrested. I made 
no arrangements for bond. I left the matter of a bond to 
my attorneys. I employed my attorneys in February. I 
started consulting with my attorneys in February. I kept 
them retained until May 6, 1960. I  did not know whether 
or not I would be arrested. There was a possibility, though, 
of my arrest. However, I did not want to be arrested. I 
was going to request service at the lunch counter, and I 
employed counsel in case there was a possibility of an 
arrest. I didn’t expect to do anything to violate the law.

I was not requested to leave by the management. I in­
tended to stay there until I was served, as long as I was 
orderly. There was a possibility, I felt, that I would be 
arrested, even after having been requested to leave if I 
stayed. That was one of the reasons I retained counsel. 
I took the pads that I bought back to the student meeting 
after having been released from jail. At the student meet­
ing, we decided to keep the pads for the purpose that we 
have used them here today. I was in jail when some of 
the others were arrested, and I don’t know whether all of 
the students made a purchase on that date. But whatever 
we purchased we decided in the meeting after the arrests 
that we would keep the purchase to be used in evidence. 
We were never instructed to do this. We had never been 
advised to do this. But we decided to do this after dis­
cussing the matter with the group.

[fol. 40] Redirect examination.

By Mr. McKissick:
I felt I had a right to seek service at the lunch counter 

in Kress’ when I went there, and after having been served



39

on the first floor, I felt that I had a right to receive ser­
vice at the lunch counter.

Recross examination.

By Mr. Murdock:
I have not been instructed that the law does not give 

me the right to seek service there; moreover, I have not 
been instructed that if I had been refused service and re­
quested to leave and refused to leave, that I would be vio­
lating the law. I left when the officer directed me to leave. 
I had no intentions of remaining after having been in­
structed to leave by the officer.

D onovan P hillips :

Direct examination.

By Mr. McKissick:
I live at 1109 Fayetteville Street, but my permanent 

address is 1309 West Fourth Street, Greenville, North 
Carolina. I am 19 years of age. I attend school at North 
Carolina College. My classification is senior. I know where
S. H. Kress is located. It is located on the corner of Man- 
gum and Main Streets. There is a very large sign indicat­
ing that this is Kress’ Store. The sign is about 50 feet wide 
and 8 feet high. There are two entrances to the S. H. Kress 
Store, and these entrances are located on Main Street. 
There is no sign over either of these entrances saying, 
“For White Only.” There is no sign saying “For Colored 
Only.” I was in S. H. Kress Store on May 6, 1960. I was 
not stopped by anyone when I went into this store. When 
I went into the store, I went to the counter that sold paper 
and school supplies. The counter is about three or four 
counters down in the store. When I went to the school 
supplies counter, I purchased a pad of lineless paper. I 
received a receipt for my purchase.
[fol. 41] (At this point the lineless paper was introduced 
into evidence, without objection, as Defendants’ Exhibit B.)



40

After I made this purchase, I  went downstairs to the 
lunch counter, located in the basement of the store. When 
I got on the basement floor, no one ordered me out. No 
one oi'dered me out of the store until I got to the lunch 
counter. When I took a seat at the lunch counter, I was 
approached by Mr. W. K. Boger, who said, “You are not 
an invited guest, and you are not an employee; so I  am 
asking you to leave.” Before I could ask him who he was, 
the police officer directed me to the back of the store. The 
police officer was Capt. Seagroves. Mr. Boger said noth­
ing more to me than I have already stated. Capt. Sea- 
groves just said, “Get up,” and he pointed to the back of 
the store. After I was arrested, we were taken up the 
back steps of Kress’ and out the back, and we walked to 
the jail. They fingerprinted us after we had been put in 
the cells.

No one read a warrant to me in Kress’ Store. The war­
rant was read to me while I was being fingerprinted at 
the Police Station. I  had been in Kress’ Store approxi­
mately once in two weeks or had just dropped in and 
picked up an occasional article prior to May 6, 1960. There 
is a stand-up lunch counter upstairs, and I have been served 
along with white people. I  have never been refused ser­
vice at the stand-up lunch counter upstairs, and I have 
never been ordered to leave the store while frequenting 
the upstairs lunch counter. I  was a regular customer at 
Kress’ prior to February 8, 1960. I am a member of the 
Negro race.

Cross examination.

By Mr. Murdock:
I was a customer at Kress’ prior to February 8, 1960, 

but I have discontinued my patronage of this store. We 
were encouraging the patronage of this store if all Negroes 
could be served at all counters in the store. Otherwise, 
we were not to patronize the store. I bought the notebook 
[fol. 42] paper because it was the decision of the group 
at a meeting held previously to make a purchase before 
we went downstairs to try to obtain service. I expected



41

to be served at the lunch counter. I did not expect to be 
ordered out. I did not expect to be arrested. I didn’t get 
a chance to leave when Mr. Boger asked me to leave be­
cause I was directed to the back of the store by Capt. 
Seagroves. Had I been given an opportunity to leave, I 
don’t know whether or not I would have left. If the police 
officer had directed me to leave the store, I would have 
left. I would have left at the request of the manager, if 
he had identified himself. I didn’t get a chance to ask him 
who he was.

I marched in the picket line carrying signs. I don’t know 
what was on the sign. I carried several of them. I remem­
ber on one of the signs that this language appeared: 
“Segregation is the Negro’s Burden and America’s Shame,” 
by M. L. King. I remember another one which said, “I t’s 
Spring, Let Democracy Flower.” At the moment, I don’t 
recall any others.

Redirect examination.

By Mr. McKissick:
At the time I went into S. H. Kress’ I believe I had a 

constitutional right to be served at that lunch counter.

J oan H aebis N elson T eumpoweb:

Direct examination.

By Mr. McKissick:
My name is Joan Harris Trumpower. My Washington 

address is c/o Rev. D. R. Diamond, New Men’s Dormitory, 
Howard University; and here it is c/o Rev. Charles John­
son, Presbyterian Chaplain, Duke University. On May 6, 
1960, I was a freshman at Duke University. On this date 
I went into S. H. Kress Company alone. When I went into 
the store, I walked around and looked at the various coun­
ters. There were several things I thought I might like to 
[fol. 43] buy. I went over and bought a ball point pen, as 
I needed one. (At this point the ball point pen was in­



42

troduced into evidence, without objection, as Defendants’ 
Exhibit C.)

I have patronized Kress’ prior to the date that I was 
arrested. I imagine that I have visited this store about half 
a dozen times. I have visited this store with another young 
lady, who is white, but on this occasion I went alone. 
After I made my purchase at the stationery counter, I 
went downstairs to the lunch counter. When I got to the 
lunch counter, a waitress asked me for my order. She 
brought me food, and I was eating it. The lunch counter 
was almost full of customers. There were no Negroes there 
at that time. This man (indicating Mr. Boger) came up 
to me as I  was eating there and said that I was not invited, 
and I said to him that I spent my money upstairs in this 
store and that I could not understand how he determined 
that I was not a guest; and he said that I was antagonizing 
the customers, and then a police officer came, and I asked 
him if I was being arrested, and he said, “Let’s go.” While 
I was there, I ran into several students from Duke, and 
they left, but I had not finished.

Several students from North Carolina College came in 
and sat on either side of me. I talked to those students 
at that time, and I offered to buy some of them some food. 
When I offered them food, some of them were taken off by 
the officers, and it was not right away that the manager 
or police officer came up to me. Mr. Boger had the others 
arrested before he got to me. When he got to me, he said 
that I was not invited and that I would have to leave be­
cause I was antagonizing the customers. I did not leave 
at first because I wanted to know why, and while we were 
in the process of discussing this, the police officer told me, 
“Let’s go.” He did not offer to give me my money back 
and no mention was made of any money. He did not tell 
me that he was the manager of the S. H. Kress Company, 
[fol. 44] He did not say that he was one of the employees 
of the store. He was completely unidentified to me. The 
officer said, “Let’s go.” When I saw the way he was point­
ing, I walked back to the rear of the store. I am a member 
of the white race. I have not eaten at Kress’ lunch counter 
prior to this time.



43

Cross examination.

By Mr. Murdock:
On May 6, 1960, I was a student at Duke University. 

I had not been attending these meetings with the students 
at North Carolina College in regard to the sit-ins. I have 
attended some since then—since May 6, 1960. I met some 
of the students at North Carolina College through some 
friends at Duke University who knew them. I had not met 
with them prior to May 6, 1960. I have been in the picket 
lines carrying signs in front of S. H. Kress Store. I had 
been interested in this movement when I first read of its 
happening in Greensboro. I did not participate in the 
Greensboro movement. I was in the picket line here about 
three times prior to May 6,1960.

I was not instructed or advised to make a purchase in 
some other part of the store before going to the lunch 
counter. I purchased a ball point pen as I needed it. I was 
in the process of having a conversation with Mr. Boger dur­
ing which he requested that I leave. I did not want to be 
arrested on that day. I did not expect to be arrested. I 
am now living in Alexandria, Virginia. I gave my address 
c/o Howard University. We are in the process of moving. 
My husband is not connected with Howard, but I have 
friends there, both white and Negro. The address that I 
gave belongs to a Negro friend. My husband is part white 
and part Indian.

Callis N apolis B rown :

Direct examination.

By Mr. McKissick:
I live at 206 Pilot Street. I am 21 years of age, and 

[fol. 45] I am a senior at North Carolina College. On May 
6, 1960, I went to Kress’ Store and went to the counter that 
sells combs. This is the comb that I purchased, and this is 
the receipt for the purchase.

(At this point the comb was introduced into evidence, 
without objection, as Defendants’ Exhibit D.)



44

Prior to February 8, 1960, I have been in Kress’ Store 
on numerous occasions. I have never been in the section 
of the store where the stand-up lunch counter is located. 
I have never been refused service at any other counter in 
Kress’ Store prior to February 8, 1960. After I made my 
purchase on May 6, 1960, I went downstairs to the lunch 
counter, and at that time I was the only Negro down there. 
Mr. Boger came over to me and said, “The custom has not 
been changed, and you will have to leave.” I turned around 
and asked him if he was the manager; and I don’t recall 
whether he said “yes” or “no.” Capt. Seagroves of the 
Police Department said, “Fellow, the man told you to leave, 
so let’s go.” Capt. Seagroves took me by the belt up the 
back stairs, through Kress’ Store, out the front door down 
Main Street to the Police Station. He did not read a 
warrant to me.

I first had a warrant read to me sometime late in May. 
When I heard that a warrant was out for me, I went to the 
detective’s house and had him read it to me. That was De­
tective Frank McCrea. He lives on Nelson Street. I am 
a member of the Negro race. No warrant was ever read 
to me at the Police Station. They took my fingerprints down 
there. Capt. Seagroves arrested me. Lacy Streeter was 
not arrested at this time. I told Capt. Seagroves that it 
was not necessary for him to hold me by my belt because 
I was not going any place. And he said, “That is true, 
you are not.” Capt. Seagroves was in uniform.

[fol. 46] Cross examination.

By Mr. Murdock:
I did not know Mr. Boger prior to that date. The move­

ment sponsored here in Durham is strictly a student or­
ganization. The attempts to obtain service at the lunch 
counters and the sit-ins are one and the same. The move­
ment is being sponsored and promoted by a student organi­
zation. I am a member of the student movement which 
protests against discrimination. There was an organization 
in existence in February to May, and I am a member of it.



45

I am a leader. There are approximately 14 leaders. There 
is no chief leader. Different people preside at different 
meetings. I preside at some of them. I am not ashamed of 
the fact that I am one of the leaders. We had a meeting 
on the night before May 6, 1960. We planned our strategy 
at that meeting. We planned to make a purchase in some 
other part of the store before going down to attempt to get 
service at the lunch counter. It was also decided that we 
would attempt to get service at the lunch counter. It was 
not decided that we would not leave until we were ar­
rested, if we were requested to leave. However, it was 
discussed and decided that in the event that we were or­
dered to leave, we would remain until we were served. If 
the manager had requested that we leave, we would have 
left, if the manager had identified himself. We decided at 
our meeting if the manager requested us to leave we would 
leave without being served. I deny that we all went there 
for the purpose of being arrested so that we could make 
a test out of this.

Redirect examination.

By Mr. McKissick:
Exception # 9:
Q. At the time that you went to the lunch counter on 

May 6, 1960, did you feel and believe that you had a right 
to service at this lunch counter?

Objection. The Court sustained objection.
Exception #9.

[fol. 47] F rank M cGill Coleman :

Direct examination.

By Mr. McKissick:
My name is Frank Coleman. I live at 2219 Club Boule­

vard. I was born in Vicksburg, Miss., and I now live in 
Pittsburgh, Pa. I am enrolled at Duke University. I am 
in the Graduate School of Liberal Arts and Sciences. I am



46

majoring in political science. I am a member of the white 
race.

T was in Kress’ on May 6, 1960, but had not been there 
prior to this time. When I went into the store, I bought 
a Mother’s Day card. Then I joined my friend Bob Mark­
ham, and he and I went downstairs and seated ourselves at 
the lunch counter. While I was at the lunch counter, I 
asked the waitress if she would serve me and she refused. 
I asked her why, and she said that she did not have to 
explain her reason to me. Mr. Boger approached us. He 
did not identify himself at the time. He asked us to leave, 
and I asked him why. He said that we were not invited 
guests. I asked him how he determined this. I asked him 
if he sent out invitations by mail. I continued to sit there, 
and I again asked the waitress to serve us, and she said, 
“no.”

Mr. Boger returned accompanied by a police officer. Mr. 
Boger would tap the six of us seated in a row and asked 
us if we were going to leave. We answered, “No, not 
until we are served.” Then the police officer would an­
nounce that you are being arrested for trespassing. I con­
tinued to ask Mr. Boger how he could determine whether 
or not I was an invited guest. He did not answer. The 
police officer informed me that, since Mr. Boger had asked 
me to leave, and as I had not left, I was going to be 
arrested for trespassing. My friend Bob Markham is a 
Negro. I had two other friends, who are white, who had 
been served that day.

Cross examination.

By Mr. Murdock:
Mr. Boger, the manager, told me to leave, and I did not 

[fol. 48] leave. I had never attempted to get service in 
Kress’ prior to this date. I have carried signs in front 
of Kress’ and other stores discouraging people to trade 
with them.



47

S hirley Mae B row n:

Direct examination.

By Mr. McKissick:
I live at 206 Pilot Street, here in Durham. I am a Negro. 

I am a sophomore at North Carolina College. I am 19 
years of age. These are rubber bands that I bought in 
Kress’. (At this point, rubber bands were introduced into 
evidence, without objection, as Defendants’ Exhibit E.) 
I bought them at the third counter from the front door. 
After making this purchase, I went downstairs to the lunch 
counter. I have never been there before. I have traded 
often at S. H. Kress Company prior to February 8, 1960. 
I took a seat at the lunch counter on May 6, 1960, after 
one of my friends, a gentleman from Duke University, 
gave me his seat. My friend had purchased a glass of iced 
tea and a sandwich, which he gave to me. One of the wait­
resses at the lunch counter came over and snatched the 
iced tea, the plate, and the napkin. However, I was eating 
the sandwich.

Mr. Boger, the manager of Kress’, who was later identi­
fied to me, said, “This lunch counter is open for invited 
guests and employees of the store. I ’ll have to ask you 
to leave,” and I told him that I would when I finished 
eating my sandwich. At that time, a police officer said, 
“Let’s go,” and pointed his finger to a little room in back 
of the lunch counter. The only conversation I had with 
Mr. Boger was that I told him I would leave when I fin­
ished my sandwich. He did ask me to leave, but he didn’t 
tell me who he was or that he worked at the store. He did 
not tell me he was the manager. He did not tell me he 
was a police officer. A police officer was with him. I do not 
know who he was. He was a tall officer.

[fol. 49] Cross examination.

By Mr. Murdock:
I made this purchase in the store because I needed these 

rubber bands. The purchase was 11 cents. I needed the



48

purchase to go in my hair. I needed the rubber bands. I 
did not make the purchase because I had been instructed 
to do so. It was an agreement for all of us to make a 
purchase. It was not because we made an agreement to 
test the law. I expected to be served because I am a citi­
zen. When we were picketing the store, we were encourag­
ing people to purchase if they could be served. I carried 
lots of signs; one of them read, “Democracy Lies Here.” 
We were encouraging people to trade with Kress’ if they 
could be served, and on May 6, 1960, I expected to be 
served. A white gentleman from Duke made a purchase 
for me. He was served. He was already there when I got 
down there. He is not one of the defendants. I didn’t 
know his name. He came down to the church and I knew 
him. Mr. Boger told me to leave, and I told him that I 
would after I finished eating the sandwich. I  did not ex­
pect to get arrested, and I did not want to be arrested.

J ohn T homas A v e n t :

Direct examination.

By Mr. McKissick:
I am 20 years old. My address is 2605 Chidley Hall, 

North Carolina College. My permanent address is General 
Delivery, Nashville, North Carolina. I went to S. H. Kress 
Company on May 6, 1960. I  am a member of the Negro 
race. The item held is a pencil that I purchased from 
Kress’ on that day. I  have a receipt for my purchase. (At 
this point, the pencil was introduced into evidence, with­
out objection, as Defendants’ Exhibit F.) After I pur­
chased the pencil upstairs, I went downstairs to the lunch 
counter. I  waited a while until I could get a seat. When 
I got a seat, I sat down. While I  was waiting to be served, 
[fol. 50] Mr. Boger, whom I did not know at the time, 
came up to me and said, “I am sorry; I am going to have 
to ask you to leave,” and I asked him why. He said, “This 
counter is open only to invited guests and employees.” 
And he said, “You are not an invited guest.” Then the 
policeman, Mr. Cannady, said, “Let’s go.” He pointed me



49

to the direction of the other students. I  felt at that time 
on May 6, 1960, as a citizen of the United States and as 
a member of the general public that, after I purchased the 
article upstairs, I would be welcomed downstairs.

Cross examination.

By Mr. Murdock:
I felt that I was entitled and had a right to be served 

at the lunch counter. I didn’t know when I went in that 
I would not be served. I was surprised when they refused 
to serve me. I had not been accepted at that store’s lunch 
counter since February. I carried signs in order to en­
courage patronage of the store, if the people were served 
downstairs at the lunch counter. I do not know whether 
any member of my race had been served at the lunch 
counter from February up to May 6, 1960, because I was 
not there every day. I expected to be served on May 6, 
because I had been served upstairs.

There were approximately 38 of us who went to the 
store, but not all at the same time. I was at the meeting 
the night before May 6. I cooperate with the people when 
I can, and on this night I agreed to go in with the people 
and take part. It was agreed that each of us would make 
a purchase in some part of the store before going to the 
lunch counter. I was not expecting to be arrested. When 
Mr. Boger asked me to leave, I did not leave because I 
did not know at that time who Mr. Boger was. I am a 
student, and I can cook. I have never been employed as a 
cook. Perhaps I carried the sign which read, “We Cook 
Here, Why Can’t We Eat Here.” When we said, “We,” 
we were referring to my race. I have been interested in 
this movement since February, and I have been very active.



50

[fol. 51]
I n the S uperior Court of D urham County

R enewal of Motions and D enial T hereof 

Exception #10:
Mr. McKissick: We renew our written motions to quash 

the indictments and also motions for dismissal as of non­
suit.

The Court: Motion denied.
Exception #10.

I n  the  S uperior Court of D urham County 

Exception #11:

Charge of the Court

Gentlemen of the Jury: The defendants, John Thomas 
Avent, Callis Napolis Brown, Shirley Mae Brown, Frank 
McGill Coleman, Joan Harris Nelson, Donovan Phillips, 
and Lacy Streeter Carrole, are each being tried upon a 
separate bill of indictment, each of said bills of indictment 
charging that on the 6th day of May, in the year of our 
Lord one thousand nine hundred and sixty, that such de­
fendant, with force and arms, at and in the County afore­
said, did unlawfully, willfully and intentionally, after being 
forbidden to do so, enter upon the land and tenements of
S. H. Kress and Company Store, located at 101 and 103
W. Main Street in Durham, North Carolina, said S. H. 
Kress and Company, owner, being then and there in actual 
and peaceable possession of said premises, under the con­
trol 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, leave that part of the said 
street reserved for employees and invited guest, willfully 
and unlawfully refused to do so, knowing or having reason 
to know that he, the said defendant, had no license therefor.

The defendants, and each of them, have come into court 
and entered a plea of not guilty. The plea of not guilty



51

thus interposed challenges the credibility of the State’s 
evidence and raises in his or her behalf a presumption of 
innocence. That is the defendant in this, as in all criminal 
[fol. 52] cases, enters upon the trial presumed to be in­
nocent, and this presumption remains with the defendant 
and surrounds him or her throughout the trial, and entitles 
him or her to an acquittal at your hands, unless and until 
the State has by competent evidence satisfied you and each 
of you of his or her guilt beyond a reasonable doubt.

The State has offered evidence which in substances tends 
to show that W. K. Boger is Manager of S. H. Kress and 
Company’s Durham store; that S. H. Kress and Company 
is a corporation; that this store is located at 101 and 103 
on Main Street, at the corner of Main and Mangum Streets 
in the City of Durham; that it has two entrances on Main 
Street. That W. K. Boger, on May 6, 1960, was the Man­
ager and was in control and had authority over the store; 
that the building and premises were owned by S. H. Kress 
and was being operated as a store by S. H. Kress. That he,
W. K. Boger, was in the store on this date, and that the 
defendants John Thomas Avent, Callis Napolis Brown, 
Shirley Mae Brown, Frank McGill Coleman, Joan Harris 
Nelson, Donovan Phillips and Lacy Streeter Carrole were 
in this store on that date; that they were in the vicinity 
of the luncheonette area downstairs; that there are five 
floors to this building—two sellings floors and three floors 
for storage. That on this date the luncheonette was in 
operation to serve customers that were invited and also 
to serve employees; that there were signs posted in the 
store and around the lunch department that the lunch de­
partment was open for invited guest and employees only; 
that there was an iron railing around this department with 
chains on three entrances to it.

That W. K. Boger talked with each of the seven defen­
dants; that he told them that the lunch department was 
open to invited guest and employees; that they were seated 
in the lunch department and that he asked them to leave. 
They stated that they were refusing to leave until they 
were served. That the officers came and the officer asked 
[fol. 53] them to leave; that they still wouldn’t leave, so



52

the officer arrested them. That he, W. K. Boger, as Man­
ager of the S. H. Kress and Company Store and business 
on this occasion, did not want the defendants on the prem­
ises and had asked them to leave, and that they refused to 
do so. That none of the defendants were employees and 
none of the defendants had any authority to be in there 
when he asked them to leave.

State further offered evidence which in substance tends 
to show that Capt. Cannady is a member of the Durham 
Police Department; that on May 6, 1960, he was on duty; 
that as a result of a call he received he went to S. H. Kress 
and Company, and that he saw each of the defendants there 
except the defendant Coleman. That the Manager of the 
store was Mr. Boger, and that he heard Mr. Boger ask 
each of the defendants to leave in the presence of him, 
the officer. That each of the defendants refused to leave. 
That he then, the officer, told them to leave or he would 
have to arrest them. That they again refused to leave and 
that he arrested them. That they had been told by Mr. 
Boger that he was the Manager of S. H. Kress and Com­
pany, and that he told these six defendants, all of the de­
fendants except Coleman, that Mr. Boger was the Manager.

That’s what some of the evidence for the State tends 
to show. What it does show, if anything, is for you to say 
and determine.

The defendants have offered evidence which in substance 
tends to show that Lacy Carrole Streeter is 24 years old; 
that he is a member of the Negro race; that he is a senior 
at North Carolina College; that he entered Kress’ Store 
here in Durham on May 6, 1960, at about 12:30 to make a 
purchase; that he made a purchase and decided to go down 
to the lunch counter to receive service. That he sat down 
at the lunch counter and requested service. That he had 
purchased some note pads before coming down there and 
[fol. 54] had a sales receipt for them; that the sales re­
ceipt is dated incorrectly. That on this date he did not 
have any conversation with Mr. Boger and Mr. Boger did 
not say anything at all to him, and that Mr. Boger nor 
Mr. Cannady did not ask him to leave. That the police 
officer spoke to him and directed him toward the rear of



53

the lunch counter where some others of a group of people 
were standing.

Defendants have further offered evidence which in sub­
stance tends to show that Donovan Phillips is 19 years old; 
that he is a senior at North Carolina College; that he went 
to Kress’ on this date; that there are no signs over the 
entrance to Kress’ Store, here in Durham on Main Street, 
specifying race in any respect or limiting any race. That 
he made a purchase of lineless notebook paper; that after 
he purchased the notebook paper he went downstairs to 
the lunch counter; that nobody had ordered him out until 
he got to the lunch counter. That a man, later identified as 
Mr. Boger, told him he was not an invited guest and that 
he was not an employee, and requested him to leave. That 
before he could do anything he was arrested by the officer 
and told to join a group back there. That he had been to 
Kress’ Store before and had been served at the stand-up 
lunch counter on another floor. That he had never been to 
the downstairs lunch counter prior to the date that he was 
arrested. That he is a member of the Negro race.

Defendants have further offered evidence which in sub­
stance tends to show that Joan H. Nelson, on May 6, 1960, 
was a freshman student at Duke University; that she went 
to Kress’ Store on this date by herself; that she bought 
a ball point pen; that she then went downstairs to the 
lunch counter; that she had patronized Kress’ Store some 
half a dozen times before. That on this occasion at the 
lunch counter she ordered and received food; that she 
began eating; that the counter was almost full; that no 
Negroes were there. That a man came up to her and told 
[fol. 55] her she was not an invited guest and that she 
would have to leave. That he told her she was antagonizing 
customers. That the police said, “Let’s go.” That several 
students at North Carolina College had prior thereto come 
in and were sitting on either side of her; that she had 
offered one of them some food. That Mr. Boger did not 
offer to give her her money back. That she is a member of 
the white race, and had not prior to this occasion eaten 
at the lunch counter.

Defendants have further offered evidence which in sub­
stance tends to show that Callis N. Brown is a senior at



54

North Carolina College; that he went to Kress’ Store on 
this occasion; that he bought a comb. That prior to Febru­
ary 8, 1960, he attended Kress’ Store on many occasions. 
That he had not been to the stand-up luncheon section on 
May 6th—had not been to the stand-up luncheon section. 
That on May 6, after he made a purchase, he went down­
stairs and sat at the lunch counter; that Mr. Boger told 
him to leave, and he, Brown, asked Mr. Boger if he was 
the manager, and he did not answer. And that Captain 
Seagroves then took him to the Police Station. That it 
was late in May before a warrant was read to him. That 
he is a member of the Negro race.

The defendants have further offered evidence which in 
substance tends to show that Frank Coleman is enrolled 
as a graduate student at Duke University; that he is a 
member of the white race. That on May 6th, he went to 
Kress’ Store; that he had not been there prior to this 
date. That he bought a Mother’s Day card and then went 
down to the lunch counter. That he had a friend with him 
by the name of Bob, and that Bob is a Negro. That the 
waitress told him she would not serve him and that she 
didn’t have to explain the reasons when he asked for a rea­
son. That Mr. Boger asked him to leave and told him that 
they were not invited guests, and he asked Mr. Boger how 
they sent out invitations and how they got invitations, 
[fol. 56] That he did not leave, that he sat there. That, 
later, Mr. Boger returned with the police officer; that he 
saw Mr. Boger as he would come up to the others who were 
there, some of the people who were there, and that he saw 
him tap them on the shoulder and he would ask them to 
leave, and that they would tell him they were not going 
to leave until they were served, and that the officer would 
then tell them that they were being arrested for trespass.

Defendants have further offered evidence which in sub­
stance tends to show that Shirley Mae Brown is a member 
of the Negro race and is a sophomore at North Carolina 
College. That on this date she went to Kress’ and made a 
purchase of some rubber bands; that afterwards she went 
downstairs to the lunch counter; that a white man from 
Duke, that she doesn’t know his name, purchased some food



55

and gave it to her; that a waitress snatched it up. That 
Mr. Boger told her that “this lunch counter is open for 
employees and invited guests,” and that she said that she 
would leave as soon as she finished eating the sandwich. 
That he did not tell her that he was the manager or that 
he even worked there.

The defendants have further offered evidence which, in 
substance, tends to show that John Thomas Avent is a 
member of the Negro race, and that he went to Kress’ 
Store on this date; that he bought a pencil. That he then 
went downstairs to the lunch counter and sat down. That 
Mr. Boger came; that he did not know him at that time, 
but Mr. Boger came and said, “I ’m sorry, I ’m going to 
have to ask you to leave. That the counter is only open 
for invited guests, and you are not invited guest.” That 
the policeman came and told him at that time and pointed 
toward the other stiudents, and that he went over there 
where they were.

That’s what some of the evidence for the defendants 
tends to show. What it does show, if anything, is for you 
[fol. 57] to say and determine.

I did not attempt to recapitulate and summarize all the 
evidence in the case, but I instruct you that when you 
retire to your room to consider and make up your verdict 
in the case, that it is your duty to remember and consider 
all of the evidence in the case, whether it has been called 
to your attention by the Court or not. I also instruct you 
that if your recollection of what the evidence was differs 
from what counsel for defendants, Solicitor for the State, 
or even the Court says the evidence was, that it is your 
duty to disregard what the lawyers and the Court say the 
evidence was, and rely upon and be governed entirely and 
solely upon your own recollection of what the evidence in 
the case was.

Gentlemen, we have a statute in this State, the pertinent 
parts thereof read as follows: 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.

To constitute trespass on the lands of another, after 
notice or warning under this statute, three essential in­



56

gredients must co-exist. First, the land must be the land 
of the prosecutor in the sense that it is in either his actual 
or constructive possession. The accused must enter upon 
the land intentionally. And, third, the accused must do this 
after being forbidden to do so by the prosecutor, or some­
one acting for and on behalf of the prosecutor.

Although the State may prove beyond a reasonable doubt, 
in a prosecution under this section, that the accused in­
tentionally entered upon the land in actual or constructive 
possession of the prosecutor, after being forbidden to do 
so by the prosecutor, and thus establish as an ultimate 
fact that the accused entered the locus in quo without legal 
right, the accused may still escape conviction by showing 
as an affirmative defense that he entered under a bona fide 
claim of right. When an accused seeks to excuse an entry 
[fol. 58] without legal right as one taking place under a 
bona fide claim of right he must do two things: First, 
that he believed that he had a right to enter, and, second, 
that he had reasonable grounds for such belief.

I instruct you that if the defendants in this case, or either 
of them, in good faith entered the part of the building of
S. H. Kress and Company, from which they were ordered 
to leave, if they were ordered to leave, for the purpose of 
ordering a meal, and other goods and merchandise sold 
there, and believed in good faith and had reasonable 
grounds to believe that they had a legal right to enter or 
remain and be in that portion of the building for that pur­
pose, then it would be your duty to acquit the defendants 
or such of the defendants as fall within that explanation.

Now, gentlemen, the law that the Court has just read 
to you, or some of it, and all of it, does not mean that the 
burden of proof ever shifts in this case. The burden is 
always upon the State to satisfy you of the guilt of the 
defendants, and each of them, beyond a reasonable doubt. 
But the law does permit the defendants, and each of them, 
to offer evidence either by presenting witnesses or cross 
examination of State’s witnesses as to their good faith 
in claiming a right to enter upon the land. And they do 
not have to establish this beyond a reasonable doubt, if 
they undertake to assert such a defense; they do not 
have to establish it by the greater weight of the evi­



57

dence. It is sufficient if the evidence on this point raises 
in your mind a reasonable doubt as to their guilt.

So, gentlemen, before you may convict these defendants, 
or either of them, the State must satisfy you from the evi­
dence beyond a reasonable doubt of three things: first, it 
must satisfy you beyond a reasonable doubt that the land, 
including the portion of the building referred to in the 
[fob 59] evidence in this case, was on May 6, 1960, the land 
of S. H. Kress and Company in the sense that it was at 
that time in its actual or constructive possession. And I 
instruct you that one is in actual possession of real estate 
when he is present thereon and has the legal right to and 
does exercise dominion and control over the same. One is 
in constructive possession of real estate when he has the 
legal right to exercise dominion and control over the same, 
though absent therefrom.

The State must satisfy you, in the second place, beyond 
a reasonable doubt that the accused, and each of them, 
entered upon the land intentionally. Intent, in law, is the 
exercise of intelligent will, the mind being fully aware of 
the nature and consequences of the act which is about to 
be done, and with such knowledge and with full liberty of 
act, willing and electing to do it. Intent is an act or emotion 
of the mind, seldom if ever capable of direct or positive 
proof, but is arrived at by such just and reasonable deduc­
tion from the acts and facts proven as the guarded judg­
ment of a reasonable, prudent and cautious man would 
ordinarily draw therefrom. It is usually shown only by 
the acts, declarations and circumstances known to the 
party charged with the intent. The word “intentionally” in 
this case embraces the phrase used in the statute “without 
license therefor.” This expression “without license there­
for” means without permission or invitation, express or 
implied; without legal right or without bona fide claim of 
right.

And the State must satisfy you beyond a reasonable 
doubt, in the third place, that the defendants, and each of 
them, entered after having been forbidden to do so by 
one having right of possession of said land. If a person 
with permission or invitation, express or implied, and with­



58

out legal right or bona fide claim of right, intentionally 
enters upon the land of another and, after entering thereon, 
is unconditionally ordered to leave and get off of the 
property by one in the legal possession thereof; and if 
[fol. 60] he refuses to leave and remains on the land, he 
is a trespasser from the beginning, and the statute read 
to you by the Court applies, and he is deemed to have been 
forbidden to enter the property, even though the original 
entrance was peaceful and authorized. However, if a per­
son who enters by permission or invitation does not un­
lawfully, willfully and intentionally refuse to leave, he or 
she would not be guilty. And in this case, if any of thes ■ 
defendants was requested or ordered to leave by a duly 
authorized agent of S. H. Kress and Co., and S. H. Kress 
and Company was in possession of the premises, and or­
dered to leave the premises in question in this case, and 
such defendant did not thereafter have a reasonable time 
and opportunity to leave before being arrested for tres­
pass, he or she would not be guilty of such trespass as 
charged in the bills of indictment herein.

The word “entry,” gentlemen, as used in the statute 
that the Court has read to you is synonymous with the 
word “trespass.” It means an occupancy or possession con­
trary to the wishes and in derogation of the rights of the 
person having actual or constructive possession.

I also instruct you that a person who has the legal right 
to possession of land is not required to explain or to give 
a reason for forbidding another to enter his land, and is 
not required to explain or give a reason for unconditionally 
ordering another to leave and get off of his land. And if 
the other has no license therefor, that is, has no permission 
or invitation, express or implied, has no legal right to 
enter or remain, or does not in good faith claim a right 
to enter or remain, I instruct you that the right to keep 
others off and to order others off of land privately owned 
is part and parcel of the owner’s right to possession, 
dominion and control.

I instruct you, gentlemen, that under the evidence in this 
[fol. 61] case and the law applicable thereto you may, as 
to each of these defendants, return one of two verdicts.



59

You may find him or her guilty or you may find him or her 
not guilty, just as you find the facts to be from all of 
the evidence in the case, applying thereto the law as given 
you by the Court. The State contends that you ought to 
find each of the defendants guilty. The defendants contend, 
and each of them contends, that you ought not to find him 
or her guilty.

I further instruct you, gentlemen, that all persons so 
far as our law is concerned are equal before the law, and 
you are not to consider, though there has been a great 
deal in this case said about race, you will not consider 
the racial extraction of the defendants in arriving at a 
verdict in this case. Our Court makes no distinction be­
tween persons, whether they are rich or poor, or regardless 
of what their race may be, or what their circumstances in 
life are. You are to decide this case strictly upon the evi­
dence and under the rules of law which the Court has given 
to you for your guidance.

Gentlemen, I instruct you that you may convict all of the 
defendants, you may convict one and not convict the other 
six, you can convict any number and acquit the remainder, 
or you may find them all not guilty, just as you find the 
facts to be from all the evidence in the case, applying 
thereto the law as given you by the Court.

Gentlemen, an agent is one who acts for or in the place 
of another by authority from him, one who undertakes to 
transact some business or manage some affairs for another 
by authority and on account of the latter, and to render an 
account of it.

Gentlemen, when you come to consider the evidence and 
the weight you will give to the testimony of the different 
[fob 62] witnesses, the Court instructs you that it is your 
duty to carefully consider and to scrutinize the testimony 
of a defendant when he or she testifies in his or her own 
behalf. And in passing upon the testimony of such, the 
jury ought to take into consideration the interest the wit­
ness has in the result of the action. But the Court instructs 
you that the law requiring to do so does not reject or 
impeach such evidence, and if you believe that such witness 
has sworn to the truth, you would give to his or her testi­



60

mony the same weight you would to that if any disinter­
ested or unbiased witness. In passing upon the testimony 
of anyone, the jury ought to take into consideration the 
intelligence manifested by the witness while on the stand, 
the fairness or want of fairness, the reasonableness or 
unreasonableness, his interest, if any, in the result of the 
action, his bias or prejudice, if any, his means of know­
ing the facts to which he testified, and give to each witness 
such weight as to you he seems entitled to receive. You 
may believe all that a witness has said or none of what a 
witness has said, you may believe part of what a witness 
has said and disbelieve a part of what a witness has said. 
Gentlemen, this is not a question of sympathy for anyone, 
nor is it a question of prejudice against anyone. You are 
sworn jurors with a duty to perform, and that duty is to 
take the evidence as it came from the mouths of the sworn 
witnesses, and to take the law as given you by the Court, 
and find a verdict in this case that speaks the truth.

So, gentlemen, I come to the final portion of the charge, 
and I will have to repeat it as to each of the defendants.

So, I instruct you, gentlemen, that if you find from the 
evidence and beyond a reasonable doubt, the burden being 
on the State to so satisfy you, that on the 6th day of May, 
1960, that S. H. Kress and Company owned the land 
and building in question herein in the sense that it was 
at that time in its actual or constructive possession, and 
[fol. 63] that W. K. Roger was the agent of the said S. H. 
Kress and Company, and that on May 6, 1960, said W. Iv. 
Boger, as such agent, unconditionally ordered the defen­
dant John Thomas Avent to leave the said lands of S. H. 
Kress and Company, and further, that in so doing he was 
acting as the agent of said S. H. Kress and Company, and 
that said W. K. Boger was known by said defendant to 
be the legal agent of the said S. H. Kress and Company, 
and that said defendant entered and remained upon said 
lands intentionally, as that term has been explained to you; 
and further, that the defendant intentionally entered and 
intentionally remained thereon after having been forbidden 
to do so by W. K. Boger and after having been ordered 
by him to leave, and that said W. K. Boger was acting in



61

both instances as the agent of said S. H. Kress and Com­
pany, and that said S. H. Kress and Company was in 
possession of and had legal right of possession of said 
lands, as that has been explained to you, and that said 
defendant John Thomas Avent had no bona fide claim of 
right thereto, then in that event it will be your duty to 
return a verdict of guilty as charged as to the defendant 
John Thomas Avent. If you fail to so find, it will be your 
duty to return a verdict of not guilty, or if upon a fair 
and impartial consideration of all the facts and circum­
stances in the case you have a reasonable doubt as to his 
guilt, it’s your duty to give him the benefit of the doubt 
and acquit him.

Gentlemen, if you find from the evidence and beyond 
a reasonable doubt, the burden being on the State to so 
satisfy you that on the 6th day of May, 1960, that S. H. 
Kress and Company owned the land and building in ques­
tion herein in the sense that it was at that time in its 
actual or constructive possession, and that W. K. Boger 
was the agent of the said S. H. Kress and Company, and 
that on May 6,1960, said IV. K. Boger as such agent uncon- 
[fol. 64] ditionally ordered the defendant Callis Napolis 
Brown to leave the said lands of S. H. Kress and Com­
pany, and further, that in doing so he was acting as the 
agent of said S. H. Kress and Company, and that said 
W. K. Boger was known by said defendant to be the legal 
agent of the said S. H. Kress and Company, and that 
said defendant entered and remained upon said lands in­
tentionally, as that term has been explained to you; and 
further, that the defendant intentionally entered and in­
tentionally remained thereon after having been forbidden 
to do so by W. K. Boger and after having been ordered 
by him to leave, and that said W. Iv. Boger was acting in 
both instances as the agent of said S. H. Kress and Com­
pany, and that said S. H. Kress and Company was in pos­
session of and had the legal right of possession of said 
lands, as that has been explained to you, and that the said 
defendant, Callis Napolis Brown, had no bona fide claim 
of right thereto, then in that (went it will be your duty 
to return a verdict of guilty as to Callis Napolis Brown as



62

charged in the bill of indictment. If yon fail to so find, 
it will be your duty to return a verdict of not guilty, 
or, if upon a fair and impartial consideration of all the 
facts and circumstances in the case, you have a reasonable 
doubt as to his guilt, it’s your duty to give him the benefit 
of the doubt and acquit him.

I further instruct you, gentlemen, that if you find from 
the evidence and beyond a reasonable doubt, the burden 
being on the State to so satisfy you that on the 6th day 
of May, 1960, that S. H. Kress and Company owned the 
land and building in question herein in the sense that it 
was at that time in its actual or constructive possession, 
and that W. K. Boger was the agent of said S. H. Kress 
and Company, and that on May 6, 1960, said W. K. Boger 
as such agent unconditionally ordered the defendant Shirley 
Mae Brown to leave the said lands of S. H. Kress and 
Company, and further, that in doing so he was acting as the 
[fol. 65]' agent of said S. H. Kress and Company, and 
that said W. K. Boger was known by said defendant to be 
the legal agent of the said S. H. Kress and Company, and 
that said defendant entered and remained upon said lands 
intentionally, as that term has been explained to you; and 
further, that the defendant intentionally entered and in­
tentionally remained thereon after having been forbidden 
to do so by W. K. Boger and, after having been ordered 
by him to ieave, and that said W. K. Boger was acting in 
both instances as the agent of said S. H. Kress and Com­
pany, and that said S. H. Kress and Company was in 
possession of and had the legal right of possession of said 
lands, as that has been explained to you, and that said 
defendant, Shirley Mae Brown, had no bona fide claim of 
right thereto, then in that event it will be your duty to 
return a verdict of guilty as to Shirley Mae Brown as 
charged in the hill of indictment. If you fail to so find, it 
will be your duty to return a verdict of not guilty, or, if 
upon a fair and impartial consideration of all the facts and 
circumstances in the case, you have a reasonable doubt as 
to her guilt, it is your duty to give her the benefit of the 
doubt and acquit her.



63

If you find from the evidence, gentlemen, and beyond a 
reasonable doubt, the burden being on the State to so satisfy 
you, that on the 6th day of May, 1960, that S. H. Kress 
and Company owned the land and building in question 
herein in the sense that it was at that time in its actual or 
constructive possession, and that W. K. Boger was the 
agent of said S. H. Kress and Company, and that on May 
6, 1960, said W. K. Boger as such agent unconditionally 
ordered the defendant Frank McGill Coleman to leave the 
said lands of S. H. Kress and Company, and further, that 
in doing so he was acting as the agent of said S. H. Kress 
and Company, and that said W. K. Boger was known by 
said defendant to be the legal agent of said S. H. Kress 
and Company, and that said defendant entered and re- 
[fol. 66] mained upon said lands intentionally, as that term 
has been explained to you; and further, that the defendant 
intentionally entered and intentionally remained thereon 
after having been forbidden to do so by W. K. Boger and 
after having been ordered by him to leave, and that said 
W. K. Boger was acting in both instances as the agent of 
said S. H. Kress and Company, and that said S. H. Kress 
and Company was in possession of and had the legal right 
of possession of said lands, as that has been explained to 
you, and that said defendant, Frank McGill Coleman, had 
no bona fide claim of right thereto, then in that event it 
will be your duty to return a verdict of guilty as to Frank 
McGill Coleman as charged in the bill of indictment. If you 
fail to so find, it will be your duty to return a verdict of 
not guilty, or, if upon a fair and impartial consideration 
of all the facts and circumstances in the case, you have a 
reasonable doubt as to his guilt, it is your duty to give 
him the benefit of the doubt and acquit him.

I also instruct you, gentlemen, that if you find from the 
evidence and beyond a reasonable doubt, the burden being 
on the State to so satisfy you that on the 6th day of May, 
1960, that S. H. Kress and Company owned the land and 
building in question herein in the sense that it was at that 
time in its actual or constructive possession, and that W. Iv. 
Boger was the agent of the said S. H. Kress and Com­
pany, and that on May 6, 1960, said W. K. Boger as such



64

agent unconditionally ordered the defendant Joan Harris 
Nelson to leave the said lands of S. H. Kress and Com­
pany; and further, that in doing so he was acting as the 
agent of said S. H. Kress and Company, and that said 
W. K. Boger was known by said defendant to be the legal 
agent of the said S. H. Kress and Company, and that said 
defendant entered and remained upon said lands inten­
tionally, as that term has been explained to you; and fur­
ther, that the defendant intentionally entered and inten- 
[fol. 67] tionally remained thereon after having been 
forbidden to do so by W. K. Boger and after having been 
ordered by him to leave, and that said W. K. Boger was 
acting in both instances as the agent of said S. H. Kress 
and Company, and that said S. H. Kress and Company 
was in possession of and had the legal right of possession 
of said lands, as that has been explained to you, and that 
said defendant, Joan Harris Nelson, had no bona fide claim 
of right thereto, then in that event it will be your duty to 
return a verdict of guilty as to the defendant Joan Harris 
Nelson, as charged in the bill of indictment. If you fail 
to so find, it will be your duty to return a verdict of not 
guilty, or, if upon a fair and impartial consideration of all 
the facts and circumstances in the case, you have a reason­
able doubt as to her guilt, it is your duty to give her the 
benefit of the doubt and acquit her.

I further instruct you, gentlemen, that if you find from 
the evidence and beyond a reasonable doubt, the burden 
being on the State to so satisfy you, that on the 6th day 
of May, 1960, that S. H. Kress and Company owned the 
land and building in question herein in the sense that it 
was at that time in its actual or constructive possession, 
and that W. K. Boger was the agent of the said S. H. 
Kress and Company, and that on May 6, 1960, said W. K. 
Boger as such agent unconditionally ordered the defendant 
Donovan Phillips to leave the said lands of S. H. Kress 
and Company; and further, that in doing so he was acting 
as the agent of said S. H. Kress and Company, and that 
said W. K. Boger was known by said defendant to be the 
legal agent of the said S. H. Kress and Company, and that 
said defendant entered and remained upon said lands in­



65

tentionally as that term has been explained to you; and 
further, that the defendant intentionally entered and in­
tentionally remained thereon after having been ordered by 
[fol. 68] him to leave, and that said W. K. Boger was act­
ing in both instances as the agent of said S. H. Kress and 
Company, and that said S. H. Kress and Company was in 
possession of and had the legal right of possession of 
said lands, as that has been explained to you, and that 
said defendant, Donovan Phillips, had no bona fide claim 
of right thereto, then in that event it will he your duty to 
return a verdict of guilty as to the defendant Donovan 
Phillips as charged in the bill of indictment. If you fail 
to so find, it will he your duty to return a verdict of not 
guilty, or if, upon a fair and impartial consideration of 
all the facts and circumstances in the case, you have a 
reasonable doubt as to his guilt, it is your duty to give 
him the benefit of the doubt and acquit him.

I further instruct you, gentlemen, that if you find from 
the evidence and beyond a reasonable doubt, the burden 
being on the State to so satisfy you that on the 6th day 
of May, 1960, that S. H. Kress and Company owned the 
land and building in question herein in the sense that it 
was at that time in its actual or constructive possession, 
and that W. K. Boger was the agent of the said S. H. 
Kress and Company, and that on May 6, 1960, said W. K. 
Boger as such agent unconditionally ordered the defendant 
Lacy Carrole Streeter to leave the said lands of S. H. 
Kress and Company; and further, that in doing so he was 
acting as the agent of said S. H. Kress and Company, and 
that said W. K. Boger was known by said defendant to 
be the legal agent of the said S. H. Kress and Company . . .

Gentlemen, it has been called to my attention that I have 
called the defendant Lacy Carrole Streeter, throughout, 
Lacy Streeter Carrole. It is an inadvertence on my part, 
gentlemen. I instruct you that when I have said Lacy 
Streeter Carrole, I was referring and have referred at all 
times and you shall take it to mean the defendant Lacy 
Carrole Streeter.
[fol. 69] . . .  And that said defendant entered and re­
mained upon the said lands intentionally, as that term has



66

been explained to you; and further, that the defendant 
intentionally entered and intentionally remained thereon 
after having been ordered by him to leave, and that said 
W. K. Boger was acting in both instances as the agent of 
said S. H. Ivress and Company, and that said S. H. Kress 
and Company was in possession of and had the legal right 
of possession of said lands, as that has been explained to 
you, and that said defendant, Lacy Carrole Streeter, had 
no bona fide claim of right thereto, then in that event it 
will be your duty to return a verdict of guilty as to the 
defendant Lacy Carrole Streeter as charged in the bill of 
indictment. If you fail to so find, it will be your duty to 
return a verdict of not guilty, or if, upon a fair and im­
partial consideration of all the facts and circumstances in 
the case, you have a reasonable doubt as to his guilt, it is 
your duty to give him the benefit of the doubt and acquit 
him.

You may retire, gentlemen, and say how you find as to 
each defendant.

Exception #11.

I n the S uperior Court of D urham County

Motions to S et A side V erdict, for N ew T rial and in  
A rrest of J udgment and D enials T hereof

Exception #12:
Mr. Marsh: Motion to set aside the verdict as being 

contrary to the weight of the evidence.
Court: Motion overruled.
Defendants and each of them except.

Exception #12.
Exception #13:

Mr. M arsh: We move for new trial for errors committed 
during the trial.

Exception #13.



67

Exception #14:
Mr. Marsh: We make a motion in arrest of judgment. 
Court: Defendants, and each of them, move in arrest of 

judgment. Motion overruled. Defendants and each of them 
except.

Exception #14.

[fol. 70]
I n the S uperior Court of D urham County 

A ssignments of E rror

The defendants assign for error the following:
Assignment of Error 1: The action of the Court, as set 

out in Exception # 1  (R pp 9-12), in overruling Negro 
Defendants’ Motions to Quash.

Assignment of Error 2: The action of the Court, as set 
out in Exception # 2  (R pp 12-14), in overruling white 
defendants’ Motions to Quash.

Assignment of Error 3: The action of the Court, as set 
out in Exception # 3  (R pp 24-25), in permitting Capt.
R. J. Cannady to testify, as follows:

Q. You know that Mr. Boger was the manager of the 
store?

A. Yes, sir.
Q. And they knew that he was and had been so told by 

you and by him ?
A. Yes, sir.
Q. That he was manager and in charge?
A. Yes, sir.
Mr. Marsh: I object. I can’t hear the questions and I 

can’t hear the answers.
Court: Speak a little louder then, Mr. Solicitor and Mr. 

Witness.
Mr. Marsh: I want her to read back the last questions 

that Mr. Murdock asked.
Court: Read them to him, Miss Nelda.



68

Reporter: “Q. You knew that Mr. Boger was the man­
ager of the store? A. Yes, sir. Q. And they knew that 
he was and had been so told by you and by him?”

Mr. Marsh: Now, I object to as leading the witness.
Court: The objection comes too late. Put in this. The 

objection comes after the witness has answered the ques­
tion and it comes too late.

Mr. Marsh: I couldn’t hear the question, may it please 
the Court.
[fol. 71] Court: Well, there are five others sitting there 
and there was no objection made.

Mr. Marsh: Motion to strike the answer relative to the 
last question asked by Mr. Murdock.

Assignment of Error # 4 : The action of the Court, as 
set out in Exception # 4  (R pp 26-30), in overruling Negro 
defendants’ motions for judgment as of nonsuit at the 
close of all of the evidence.

Assignment of Error 5: The action of the Court, as set 
out in Exception #5  (E pp 30-33), in overruling white 
defendants’ motions for judgment as of nonsuit at the 
close of all of the evidence.

Assignment of Error 6: The action of the Court, as set 
out in Exception # 5  (R p 34), in overruling defendants’ 
further motion.

Assignment of Error 7: The action of the Court, as set 
out in Exception # 1  (R pp 34-35), in overruling defen­
dants’ further motion.

Assignment of Error 8: The action of the Court, as set 
out in Exception # 8  (R p 35), in overruling defendants’ 
further motion.

Assignment of E rror 9: The action of the Court, as set 
out in Exception # 9  (R p 46), in refusing to allow defen­
dants’ counsel to ask the following question on direct ex­
amination :

Q. At the time that you went to the lunch counter on 
May 6, 1960, did you feel and believe that you had a 
right to service at this lunch counter?



69

Assignment of Error 10: The action of the Court, as set 
out in Exception #10 (It p 51), in overruling defendants’ 
motion to quash the indictments and motions for dismis­
sal as of nonsuit made at the close of all of the evidence.
[fol. 72] Assignment of Error 11: The action of the 
Court, as set out in Exception #11 (R pp 51-69), in charg­
ing the jury as appears on Record pages 51 through 69.

Assignment of Error 12: The action of the Court, as set 
out in Exception #12 (R p 69), in overruling defendants’ 
motion to set aside the verdict as being contrary to the 
greater weight of the evidence.

Assignment of Error 13: The action of the Court, as set 
out in Exception #13 (R p 69), in overruling defendants’ 
motion for a new trial for errors committed during the 
trial.

Assignment of Error 14: The action of the Court, as set 
out in Exception #14 (R p 69), in overruling defendants’ 
motion in arrest of judgment.

I n the S uperior Court of D urham  County 

S tipulations

I. It is hereby stipulated and agreed by and between 
the Solicitor for the State (Honorable William H. Mur­
dock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson, 
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that the Court was duly and 
properly organized.

II. It is hereby stipulated and agreed by and between 
the Solicitor for the State (Honorable William H. Mur­
dock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson, 
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that before a plea was entered 
as to the Bill of Indictment against each of the Negro 
Defendants, the written motion, as appears on Record page



70

10, to quash the Bill of Indictment, was made separately 
for each of the Negro Defendants.
[fol. 73] III. It is hereby stipulated and agreed by and 
between the Solicitor for the State (Honorable William H. 
Murdock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pear­
son, W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that before the plea was entered 
as to the Bill of Indictment against each of the white de­
fendants, the written motion, as appears on Record page 
12, to quash the Bill of Indictment, was made separately 
for each of the white defendants.

IV. It is hereby stipulated and agreed by and between 
the Solicitor for the State (Honorable William H. Mur­
dock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson, 
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that the written motion for non­
suit, as appears on Record page 26 was made separately, 
as to each of the Negro defendants in the case.

V. It is hereby stipulated and agreed by and between 
the Solicitor for the State (Honorable William H. Mur­
dock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson,
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that the written motion for non­
suit, as appears on Record page 30, was made separately, 
as to each of the white defendants in the case.

VI. It is hereby stipulated and agreed by and between 
the Solicitor for the State (Honorable William H. Mur­
dock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson, 
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that the Exhibits A through F 
constitute purchases made by each defendant who testified 
in the case, as appear in the record.
[fol. 74] VII. It is hereby stipulated and agreed by and 
between the Solicitor for the State (Honorable William H.



71

Murdock), Solicitor for the Tenth Solicitorial District, and 
Counsel for the defendants (F. B. McKissick, C. 0. Pearson, 
W. G. Pearson, William A. Marsh, Jr., L. C. Berry, Jr., 
and M. Hugh Thompson) that the written motions to quash 
the indictments as appears on Becord page 10, et seq., and 
motions for nonsuit, as appears on Record page 26, et seq., 
were made at the close of all the evidence.

VIII. It is hereby stipulated by Counsel for defendants 
that defendants made no oral exception to the Judge’s 
ruling on their motion to strike which ruling constitutes 
exception three (3) of this record; however, defendants 
feel that under our rules an exception was deemed to have 
been made to the Judge’s ruling.

William A. Marsh, Jr., of Counsel for Defendants.

I n the S uperior Court of D urham County

S tipulation as to Case on A ppeal

The foregoing is tendered by the defendants as their 
case on appeal to the Supreme Court. This 3rd day of 
October, 1960.

William A. Marsh, Jr., M. Hugh Thompson, C. 0. 
Pearson, W. G. Pearson II, F. B. McKissick, L. C. 
Berry, Jr., Attorneys for Defendant Appellants.

Service of the foregoing case on appeal and assignments 
of error accepted, this 5 day of October, 1960.

W. H. Murdock, Solicitor.

It is further stipulated that the service of this case on 
appeal and the counter-case on appeal were made in apt 
time.

This 5th day of October, 1960.
William A. Marsh, Jr., M. Hugh Thompson, C. O. 

[fol. 75] Pearson, W. G. Pearson, II, F. B. 
McKissick, L. C. Berry, Jr., Attorneys for De­
fendant Appellants.

W. H. Murdock, Solicitor.



72

It Is Stipulated And Agreed by and between the Solicitor 
for the State of North Carolina, William H. Murdock, and 
the Attorneys for defendants, F. B. McKissick, C. 0. Pear­
son, W. G. Pearson, William A. Marsh, Jr., L. C. Berry, 
Jr., M. Hugh Thompson, that the foregoing 76 pages, to­
gether with this page, shall constitute the case on appeal 
to the Supreme Court in this cause.

W. H. Murdock, Solicitor, William A. Marsh, Jr.,
M. Hugh Thompson, C. 0. Pearson, W. G. Pearson, 
II, F. B. McKissick, L. C. Berry, Jr., Attorneys 
for Defendant Appellants.

[fol. 76] [File endorsement omitted]

In the S upreme Court of N orth Carolina 

Fall Term 1960 
No. 654—Durham

S tate

y .

J ohn T homas A vent

S tate

v.
L acy Carrole S treeter

S tate

v .

F rank McGill Coleman



S tate

v.
S hirley Mae B rown

73

S tate

v.
D onovan P hillips

S tate

v.
Callis N apolis B rown

S tate

v.
J oan H arris N elson

Opinion— January 20,1961
Appeal by defendants from Mallard, J., 30 June 1960 

Criminal Term of Durham.
Seven criminal actions, based on seven separate indict­

ments, which were consolidated and tried together.
[fol. 77] 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,



74

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 au­
thority to exercise 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, willfully 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 
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 
[fol. 78] operated for employees and invited guests only. 
Customers 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 
themselves 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



75

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 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 
arrangement. 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- 
[fol. 79] titled 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. Iv. 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 Avhen an offense is committed in his presence, and 
the defendants were trespassing in his presence.

AYhen 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.



76

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. 
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 bail-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.
[fol. 80] The White male defendant, Frank McGill Cole­
man, 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 luncheonette 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.



77

From judgments against each defendant, each defendant 
appeals.

T. W. Bruton, Attorney General, and Ralph Moody,
Assistant Attorney General, for the State.
William A. Marsh, Jr., M. Hugh Thompson, C. 0.
Pearson, W. G. Pearson, F. B. McKissick and L. C.
Berry, Jr., for Defendants, 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., Indict­
ments 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- 
[fol. 81] tion, and in the conduct of its store in Durham 
is acting in a purely private capacity to make a profit for 
its shareholders. 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 res­
taurant. “While the word ‘restaurant’ has no strictly de­
fined meaning, 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 prem­
ises. Citing authority. It has been defined as a place to 
which a person resorts for the temporary purpose of ob­
taining a meal or something to eat.” S. v. Shoaf, 179
N. C. 744, 102 S. 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



78

eating-house or cookshop to the more common shops or 
stores, where the chief business is vending articles of con­
sumption and confectionery, 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 dis­
crimination by the owner of a restaurant of people on ac­
count of race or color, or of White people in company with 
Negroes. In the absence of a statute forbidding discrim­
ination based on race or color in restaurants, the rule is 
well established that an operator of a privately owned res­
taurant privately operated in a privately owned building 
has the right to select the clientele he will serve, and to 
[fol. 82] 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, 
affirmed by the U. S. Court of Appeals for the 4th Circuit
27 December 1960,-----F. 2 d ------ ; 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 
Tavern, 106 Utah 517, 150 P. 2d 773. See 10 Am. Jur., 
Civil Rights, §21; Powell v. Utz, 87 F. Supp. 811; and 
Annotation 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 ab-



79

senee 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 pas­
senger in transit on a paid Interstate Traihvays’ journey 
had a right to food service under the Interstate Commerce 
Act in a Bus Terminal Restaurant situate in the Bus Sta­
tion, and operated under a lease by a company not affiliated 
with the Traihvays 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 S. v. Clyburn, supra, the defendants were tried on 
similar warrants charging that each defendant unlawfully 
[fol. 83] entered upon the land of L. A. Coletta and C. V. 
Porcelli after being forbidden to do so and did “unlaw­
fully refuse to leave that portion of said premises reserved 
for members of the White Race knowing or having reason 
to know that she had no license therefor.” Coletta and 
Porcelli did business under the trade name of Royal Ice 
Cream Company retailing ice cream and sandwiches. The 
building in which they did business is separated by parti­
tion into twTo 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 refused 
to do so, and they were arrested by a police officer of the 
city of Durham. All were convicted, and from judgments 
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 of this nation. Madden v. Queens



80

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 (W ash.); De La Ysla v. Publix Theatres 
Corporation, 26 P. 2d 818 (U tah); Brown v. Meyer Sanitary 
Milk Co., 96 P. 2d 651 (K an.); 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.”
[fol. 84] In an Annotation in 9 A. L. R., p. 379, it is said: 
“It seems to be well settled that, although the general 
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 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. R. 417, and 
Annotation in 33 A. L. R. 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 cases cited in defendants’ brief are ap­
plicable to the situation which obtains in the instant cases. 
For instance, Cooper v. Aaron, 358 U. S. 1, 3 L. Ed. 2d 5— 
public education; Boman v. Birmingham Transit Co., 280 
F. 2d 531—public transportation; Valle v. Stengel, 176



8 1

F. 2d 697—a case in respect to an amusement park in the 
State of New Jersey, which State has a statute, R. 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 person any 
of the accommodations, advantages, facilities or privileges 
thereof . . .  on account of race, creed or color,” R. S. 10: 
1-6, N. J. S. A.
[fol. 85] “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 sometimes char­
acterized 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 prac­
tically all incidents which property may manifest. Within 
this right are included the right to acquire, hold, enjoy, 
possess, use, manage, . . . property.” 11 Am. Jur., Con­
stitutional 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? S. 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 case, not with strong- 
hand nor with multitude of people, but only in a peaceable



82

and easy manner; and if any man do the contrary, he shall 
be guilty of a misdemeanor.” This statute is also color 
blind. Its purpose is “to protect actual possession only.”
S. v. Baker, supra. We have repeatedly held in applying 
[fol. 86] 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 commit­
ting misdemeanors in his presence. G. 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. S. v. Clyburn, supra.

Defendants in essence contend that the indictments 
should be quashed and the cases nonsuited because the judi­
cial 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 judi­
cial process here. It is 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 discrim­
ination of the owner. There is no merit to this contention.

The Court said in Shelley v. Kramer, 334 U. S. 1, 92 
L. Ed. 1161, 3 A. L. R. 2d 441: “Since the decision of this 
Court in the Civil Rights Cases, 109 U. S. 3, 27 L. ed. 835, 
3 S. Ct. 18 (1883), the principle has become firmly em­
bedded in our constitutional 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



83

conduct, however discriminatory or wrongful.” This in- 
[fol. 87] terpretation has not been modified: Collins v. 
Hardyman, 341 U. S. 651, 95 L. Ed. 1253: District of Colum­
bia v. Thompson Co., 346 U. 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 rec­
ognition 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 prop­
erty 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 person 
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 clear 
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 judicial 
process violates no rights of the defendants guaranteed 
to them by Article I, §17, of the State Constitution. 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 
[fol. 88] to have his land free from unlawful invasion by



84

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 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 seek­
ing 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 prem­
ises, he is subject to ejection although his conduct on the 
particular occasion is not wrongful.” 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 accomplish his purpose. 6 C. J. S., 
Assault and Battery, p. 821. White people also have con­
stitutional rights as well as Negroes, which must be pro­
tected, if our constitutional 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 of Kentucky, and appearing in Columbia 
Law Review, December 1960, Vol. 60, No. 8, in note 134, 
page 1122: “State court recognition of the restaurateur’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. Kramer, 
[fol. 89] 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 Re­
strictive Covenant Cases, 16 U. Chi. L. Rev. 203 (1949)) 
would extend it to this kind of case.”



85

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 car. 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 
error. 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 majority 
opinion nor in the minority opinion was the question of 
State action referred to. It seems that if the United States 
Supreme Court had thought that the arrest and prosecu­
tion was State action, it would have reversed our deci­
sion. 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 dis­
crimination of a private owner of a private business op­
erated 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 
[fol. 90] free speech, and of assembly to advocate and per­
suade 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. R. 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



86

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 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 assemblies 
and religious worship may not be disturbed by those anx­
ious 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.”

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.

There is no merit in defendants’ contention that the in­
dictments should be quashed, and the cases nonsuited, be­
cause S. H. Kress and Company is licensed by the city of 
Durham to operate a retail store, and therefore racial dis­
crimination 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 Com- 
[fol. 91] pany 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 S. 
v. Clyburn, supra, in Slack v. Atlantic White Tower Sys­
tem, Inc., supra, and in Williams v. Howard Johnson’s 
Restaurant, 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 con­
stitute State action within the prohibition of the Four­
teenth Amendment.”

Defendants further contend that the indictments should 
be quashed, and the cases nonsuited, because G. S. 14-134



87

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.

G. S. 14-134 necessarily means that the person forbidding 
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 him­
self. 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 infer­
ence that all the defendants knew when W. Iv. Boger for­
bade them to go upon or enter the luncheonette department, 
and requested them to leave after they had seated them- 
[fol. 92] selves 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



88

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 passing upon defendants’ motions made at the close of 
all the 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 G. S. 14-126 and G. S. 14-134 were intentional, 
is shown clearly by their acts, by the two White defen­
dants 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 demand 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 
[fol. 93] 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 correctly submitted all the cases to the jury.

Defendants’ assignments of error relating to the evi­
dence 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. S. 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 to explain adequately the law in the case. Citing 
authority. The assignment must particularize and point



89

out specifically wherein the court failed to charge 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. Parrish, 252 N. C. 787, 115 S. E. 2d 1. The assignment 
of error 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; S. v. Atkins, 242 N. C. 294, 87 S. E. 2d 507. How­
ever, 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 
[fol. 94] department of the Kress store after being for­
bidden 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; S. v. Fisher, 109 N. C. 817, 13 S. E. 878. 
This Court said in S. v. Crawley, 103 N. C. 353, 9 S. E. 
409, which wTas a criminal 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 hound to prove 
that he had reasonable ground for such belief, and the 
jury should so find under proper instructions from the 
court. S. v. Bryson, 81 N. C. 595.” This Court said in
S. v. Wells, 142 N. C. 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



90

reasonable grounds for such belief. S. v. Glenn, 118 N. C., 
1194; S. 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.
[fol. 95] All of the assignments of error by the defen­
dants 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 guaranteed by the 
14th Amendment to the Federal Constitution, and by Ar­
ticle I, §17, of the North Carolina Constitution.

No Error.

[fol. 96]
I n  the S upreme Court op the S tate of N orth Carolina

S tate

v.
J ohn T homas A vent, L acy Carrole S treeter, F rank 

McGill Coleman, S hirley Mae B rown, D onovan P h il­
lips, Callis N apolis B rown and J oan H arris N elson

Clerk’s Certificate 

Appeal docketed 8 November 1960.
Case argued 29 November 1960.
Opinion filed 20 January 1961.
Final judgment entered 20 January 1961.



91

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.

Adrian J. Newton, Clerk of the Supreme Court of 
the State of North Carolina.

[fol. 97]
S upreme Court of the U nited S tates

Order E xtending T ime to F ile P etition for 
W rit of Certiorari

Upon Consideration of the application of counsel for 
petitioner(s),

It Is Ordered that the time for filing petition for writ of 
certiorari in the above-entitled cause be, and the same is 
hereby, extended to and including May 4th, 1961.

Earl Warren, Chief Justice of the United States. 
Dated this 4th day of April, 1961.



[fol. 98]
S upreme Court of the U nited S tates 

No. 85—October Term, 1961

92

J ohn T homas A vent, et aL, Petitioners,
vs.

N orth Carolina

Order A llowing Certiorari— June 25,1962.
The petition herein for a writ of certiorari to the Su­

preme Court of the State of North Carolina is granted, 
and the case is transferred to the summary calendar.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in 
response to such writ.

Mr. Justice Frankfurter took no part in the considera­
tion or decision of this petition.



Nos. 11, 58, 66, 67, and 71

Jit to  jgujjraito Qjourt of to  Hitrtd j îatea
October Term, 1962

J ohn T homas A vent, et al., petitioners
v.

S tate op N orth Carolina

R udolph L ombard, et al., petitioners
v.

S tate op L ouisiana

J ames Gober, et al., petitioners
v.

City op B irmingham

F. L. S huttlesworth, et al., petitioners

V v.
City op B irmingham

J ames R ichard P eterson, et al., petitioners
' \ i v.

City op Greenville

O N  W R I T S  O F  C E R T I O R A R I  T O  T E E  S U P R E M E  C O U R T S  O F  N O R T H  
C A R O L IN A , L O U I S I A N A , A N D  S O U T H  C A R O L IN A , A N D  T O  T H E  
C O U R T  O F  A P P E A L S  O F  A L A B A M A

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ARCHIBALD COX,
S o l ic i to r  G e n e ra l,  

BURKE MARSHALL,
A s s i s ta n t  A t to r n e y  G e n e ra l,  

RALPH S. SPRITZER,
LOUIS F. CLAIBORNE,

A s s i s ta n t s  to  th e  S o l ic i to r  G e n e ra l,

HAROLD H. GREENE,
HOWARD A  GLICKSTEIN,
RICHARD K. BERG,
ALAN G. MARER,

, \ J A tto r n e y s ,
D e p a r tm e n t  o f  J u s t ic e ,  W a s h in g to n  2 5 , D .C .

—



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I N D E X

Page

Opinions below_________________________________  2
Jurisdiction____________________________________ 3
Question presented______________________________  4
Interest of the United States______________________  5
Statement:

1. A vent v. N orth Carolina, No. 11______________  6
a. Statutes involved____________________ 6
b. The facts__________________________  7

2. Lom bard v. State of Louisiana, No. 58__________ 11
a. Statute involved____________________  11
b. The facts__________________________  11

3. Gober v. C ity  of B irm ingham , No. 66___________ 22
a. Statutes involved____________________ 22
b. The facts__________________________  22

(i) Gober and Davis______________  22
(ii) Hutchinson and King___________  24
(iii) Parker and West_______________ 26
(iv) Sanders and Westmoreland_______ 27
(v) Walker and Willis______________ 28

4. Shuttlesworth v. Birm ingham , No. 67___________ 33
a. Statutes involved____________________ 33
b. The facts__________________________  33

5. Peterson v. C ity  of Greenville, No. 71___________  35
a. Statutes involved____________________ 35
b. The facts__________________________  36

Argument:
Introduction and summary____________________  41

I. The convictions of the petitioners in Avent, Gober, 
Shuttlesworth and Peterson violate the Four­
teenth Amendment because it must be con­
cluded that the force of municipal laws caused
the proprietors to discriminate______________  46

A. A municipal ordinance which requires 
racial segregation in restaurants vio­
lates the Fourteenth Amendment____ 49

658676— 82------ 1
(i)



II

Argument—Continued
Introduction and summary—Continued 

I. The convictions of, etc.—Continued
B. The State is responsible for the decision 

of the owners of a restaurant to dis­
criminate on the basis of race when 
this decision is compelled by State rage
law________________ ________ _______  50

II. Although in the Louisiana case the State ad­
dressed no explicit statutory command to 
restaurateurs, as such, to segregate their cus­
tomers, it appears that the State, by its policies 
and by its laws in closely related areas, effec­
tively induced the proprietor’s acts of dis­
crimination. Since the case does not permit a 
finding that the proprietor was merely making 
a private decision, uninfluenced by official pres­
sure, the State is constitutionally forbidden to 
impose criminal sanctions which implement the
discrimination_______________    59

III. The decision in these cases should not be deter­
mined by considerations pertinent solely to 
rights as between the proprietors and peti­
tioners____________________________________  78

Conclusion_______________________________ _— 83

CITATIONS
Cases:

A sh w an derv . Tennessee V alley A uthority , 297 U.S. 288. 47
B ailey  v. Patterson, 369 U.S. 31---------------------------------49, 62
B aldw in  v. M organ, 251 F. 2d 780------ ---------------------  51
B aldw in  v. M organ, 287 F. 2d 750____________- - - -  49, 50, 63
Barrows v. Jackson, 346 U.S. 249_____________ - —  - - 44, 63
Board o j Supervisors of Louisiana State U. v. Flem ing,

265 F. 2d 736___________________________________  68
Bornan v. B irm ingham  Transit Co., 280 F. 2d 531_____ 51
B oynton  v. V irgin ia , 364 U.S. 454------------------ — -------  56
B rown  v. Board of Education, 347 U.S. 483----------------- 67
Buchanan v. W arley, 245 U.S. 60____________________ 62, 69
Burton  v. W ilm ington P arking A uthority , 365 U.S. 715_ 49,

51, 54, 63, 64



I l l

Cases—Continued
Bush v. Orleans P arish  School Board, 138 F. Supp. 337, 

leave to file mandamus denied, 351 U.S. 948, 
affirmed, 242 F. 2d 156, certiorari denied, 354 U.S.
921, denial of motion to vacate affirmed 252 F. 2d 
253, certiorari denied, 356 U.S. 969, further motion 
to vacate denied, 163 F. Supp. 701, affirmed, 268 F. Page
2d 78_______________ - _________ --_______________  68

Bush v. Orleans P arish  School Board, 187 F. Supp. 42,
stay denied, 364 U.S. 803, affirmed, 365 U.S. 569------ 68

B ush  v. Orleans P arish  School Board, 188 F. Supp.
916, stay denied, 364 U.S. 500, affirmed, 365 U.S.
569___________ , _________________________ ______  68

Bush  v. Orleans P arish  School Board, 190 F. Supp. 861,
affirmed, 366 U.S. 212______________________ _____  68

Bush v. Orleans P arish  School Board, 191 F. Supp. 871,
affirmed, 367 U.S. 908___________________________  69

Bush v. Orleans P arish  School Board, 194 F. Supp. 182,
affirmed, 367 U.S. 907, 368 U.S. 11________________  69

Bush  v. Orleans P arish  School Board, 204 F. Supp. 568, 
modified, 205 F. Supp. 893, modified and affirmed
(C.A. 5), August 6, 1962__________________________ 69

C ity  of Greensboro v. Simfcins, 246 F. 2d 425________  63
C ity  o f St. Petersburg v. A lsu p , 238 F. 2d 830________ 63
C ivil R ights Cases, 109 U.S. 3________________  41, 64, 69, 79
Coke v. C ity  o f A tlan ta , Ga., 184 F. Supp. 579_______  63
Cooper v. A aron, 358 U.S. 1_________________  62, 63, 70-71
D epartm ent of Conservation and Development v. Tate,

231 F. 2d 6 1 5 - . . - ____________  ______ __________  63
Derrington v. Plum m er, 240 F. 2d 922______________  63
D orsey v. State A thletic Com m ission, 168 F. Supp. 149,

affirmed, 359_ U.S. 533___________________________  68
E ast B aton Rouge P arish  School B oard v. D avis, 287 F.

2d 380, certiorari denied, 368 U.S. 831_____________ 68
Eubanks v. L ouisiana, 356 U.S. 584________________ 71
Faubus v. A aron, 361 U.S. 197, affirming 173 F. Supp.

944____________________________________________  62
Flem m ing v. South Carolina Electric and Gas Co., 224

F. 2d 752______________________________________  50
Fulghum  v. Town of Selm a, 238 N.C. 100, 76 S. E. 2d

368____________________________________________  48
Garner v. Louisiana, 368 U.S. 157__________________ 70, 71



IV

Cases—Continued
Gayle v. Browder, 352 U.S. 903, affirming 142 P. Supp. Pag*

707___________________________________ __ 62
H all v. D eCuir, 95 U.S. 485_______________ _ 67
H annah  v. Larche, 363 U.S. 420_____________ _̂__ 71
H arm on v. Tyler, 273 U.S. 668____ ._____________ 69
H om e Tel. da Tel. Co. v . Los Angeles, 227 U.S. 278__  62
Jones v. M arva Theatres, Inc., 180 P. Supp. 49____  63
K err  v. Enoch P ra tt Free L ibrary of Baltim ore C ity, 149

F. 2d 212_________ ______________________  63
Lawrence v. Hancock, 76 P. Supp. 1004.__________ 63
Louisiana  v. N .A .A .C .P ., 366 U.S. 293___________  69
L ou isian a  State B oard o f Education  v. A llen , 287 F. 2d

32, certiorari denied, 368 U.S. 830____________ 68
L udley v. B oard of Supervisors o f L .S .U ., 150 F. Supp.

900, affirmed, 252 F. 2d 372, certiorari denied, 358
U.S. 819_____________________________ 68

M arsh  v. A labam a, 326 U.S. 501______________ _ 44
M onk  v. Birm ingham , 87 F. Supp. 538, affirmed, 185

F. 2d 859, certiorari denied, 341 U.S. 940_____:___ 47
M onroe v. P ape, 365 U.S. 167---------------------------- 62
M organ  v. V irgin ia , 328 U.S. 373_______ ------------ 49
M orrison  v. D avis, 252 F. 2d 102, certiorari denied, 356

U.S. 968, rehearing denied, 357 U.S. 944________ 67-68
M u ir  v. Louisville P ark  Theatrical Association, 347

U.S. 971, reversing and remanding 202 F. 2d 275__ 63
N ational Labor Relations Board v. Rem ington R and

Inc., 94 F. 2d 862______________________ _ 55
N ew  Orleans C ity P a rk  Improvement A s s ’n  v. Detiege,

252 F. 2d 122, affirmed, 358 U.S. 54____________ 68
Niem otko v. M aryland, 340 U.S. 268_____________  62
N ixon  v. Condon, 286 U.S. 73----------------------------  63
Orleans P arish  School Board v. Bush, August 6, 1962

(C.A. 5)_________________________ ________ 65
P ennsylvania  v. B oard of Trusts, 353 U.S. 230_______ 62
Pierre v. Louisiana, 306 U.S. 354------------------------ 69
P lessy  v. Ferguson, 163 U.S. 537________________  69
Poret v. Sigler, 361 U.S. 375-----------------------------  71
P u blic U tilities Comm’n  v. Poliak, 343 U.S. 451_____ 63
Rice v. S ioux C ity  M em orial P a rk  Cemetery, Inc., 349

U.S. 70_____________________________ ____  48



V

Cases—Continued
St. Helena Parish School Board, v. Hall, 287 F. 2d 376,

certiorari denied, 368 U.S. 830, further relief granted, Pm
197 F. Supp. 649, affirmed, 368 U.S. 515................  68

Shell Oil v. Edwards, 263 Ala. 4, 81 So. 2d 535_____  47
Shelley v. Kraemer, 334 U.S. 1_____________ 43, 44, 62, 63
Smiley v. City of Birmingham, 255 Ala. 604, 52 So. 2d

710_____________________________________ 47
Smith v. Allwright, 321 U.S. 649________________  63
Smith v. California, 361 U.S. 147_______________  57
Speiser v. Randall, 357 U.S. 513________________  57
State v. Clybum, 247 N.C. 455, 101 S.E. 2d 295____  48
State y. Goldfinch, 241 La. 958, 139 So. 2d 860_____  19
State Athletic Commission v. Dorsey, 359 U.S. 533,

affirming 168 F. Supp. 149----------------------------- 62
Sterling v. Constantin, 287 U.S. 378______________ 62
Strauder v. West Virginia, 100 U.S. 303----------------  71
Taylor v. Louisiana, 370 U.S. 154_______________  71
Terminiello v. Chicago, 337 U.S. 1_______________  47
Terry v. Adams, 345 U.S. 461________________ 63, 69-70
Thornhill v. Alabama, 310 U.S. 88_______________  57
Truax v. Raich, 239 U.S. 33___________________  62
Tureaud v. Board of Supervisors, 116 F. Supp. 248,

reversed, 207 F. 2d 807, judgment of court of 
appeals stayed, 346 U.S. 881, vacated and re­
manded, 347 U.S. 971, affirmed, 225 F. 2d 434, 
reversed and remanded on rehearing, 226 F. 2d 714, 
affirmed on further rehearing en banc, 228 F. 2d
895, certiorari denied, 351 U.S. 924____________ 67

Turner v. City of Memphis, 369 U.S. 350_________ 49, 62
United States v. Association of Citizens Councils of

Louisiana, 196 F. Supp. 908_________________  71
United States v. Cruikshank, 92 U.S. 542__________ 69
United States v. Manning, 205 F. Supp. 172_______  71
United States v. McElveen, 180 F. Supp. 10, affirmed

sub nom. United States v. Thomas, 362 U.S. 58___  71
Valle v. Stengel, 176 F. 2d 697__________________ 63
Virginia, Ex parte, 100 U.S. 339_____ ,__________ 62, 64
Virginia v. Rives, 100 U.S. 313_________________  62
Wieman v. Updegraff, 344 U.S. 183______________  57
Williams v. Hot Shoppes, Inc., 293 F. 2d 835---------- 51



VI

Cases—Continued
W illiam s v. H ow ard Johnson’s Restaurant, 268 F. 2d Paee

845.____ _______________________________  50
W ilson  v. Board of Supervisors, 92 F. Supp. 986,

affirmed, 340 U.S. 909----------------------------------  67
W inters v. N ew  York, 333 U.S. 507---------------------  57
Y ick Wo v. H opkins, 118 U.S. 356----------------------  62

Constitutions and Statutes:
U.S. Constitution:

First Amendment________________________ 57
Fourteenth Amendment----------------------------- 4,

5, 41, 48, 49, 50, 55, 56, 57, 58, 61, 62, 64, 82
28 U.S.C. 2106________________________----- 48
Alabama Statutes:

7 Code of Alabama (1940), § 429(1)___________ 47
General City Code of Birmingham, Alabama 

(1944):
Sec. 369_________________ -_________ 30,33
Sec. 824____________________________33, 34
Sec. 1436________________________  22,33,34

Louisiana Constitution and Statutes:
Louisiana Constitution 1921, Art. X, § 5.1, as 

added by Act 630 of 1960, adopted November
8, 1960______________________________ 66, 71

Louisiana Act 194 of 1954---------------------------  67
Louisiana Act 630 of 1960, Preamble---------------  69
Louisiana Civil Code, Art. 94---------------------  66
Louisiana Revised Statutes of 1950, as amended:

4:3-4___________________    67
4:451______________________________  65
4:452_______________________________ 65,66
4:5__________      65
9:201______________________________  66
13:917, 13:1219______________________  66
14:59(6), as amended 1960_____________  11,15
14:79______________________________  66
15:422(6)_____   70
15:752, 15:854___________________   66
15:1011, 15:1031_____________________  66
17:10-12___________________________  66
17:107, 17:394.1, 17:395.1-4, 17:2801, et seq., 

17:2901, et seq 65



Constitutions and Statutes—Continued
Louisiana Constitution and Statutes—Continued

Louisiana Revised Statutes of 1950—Continued
17:331-334, 17:341-344 (former sections—re- p»k«

pealed in 1960)-------------------------------  65
17:443, 17:462, 17:493, 17:523------   71
18:195_____________________________  65
18:1174.1_______________ ____ -........ — 65
22:337,22:345________________ ____ —  66
23:971-975_________    65
23:972_____________    66
33:4558.1---------   65
33:4771____________________________  65
33:5066-5068________________________  65
40:244_______________________   65
40:246_____________________________  66
46:181_____________________________  66

New Orleans City Code, §§ 5-2(1), 5-61.1-------  66
- North Carolina Statutes:

North Carolina General Statutes, § 14-134--------  6
Code of Durham, North Carolina (1947), ch. 13,

§ 42--------------------------------------------------  6
South Carolina Statutes:

Code of Greenville, South Carolina, 1953, as
amended in 1958, § 31-8-------------------------- 35

Code of Laws of South Carolina, 1952, as amended
1960, § 16.388_________________________  36

Miscellaneous:
Henkin, Shelley v. Kraemer: Notes for a Revised Opinion,

110 U. of Pa. L. Rev. 473___________________  43
Reporter’s Notes to Louisiana Revised Statutes of

1950, 33:5066_____________________________  69

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' I i ■ 1 . i:



Jtt the Supreme fl-nurt of the In M  States
October T erm, 1962 

No. 11
J ohn T homas A vent, et al., petitioners

v.
S tate op N orth Carolina

No. 58
R udolph L ombard, et al., petitioners

v.
S tate of L ouisiana

No. 66
J ames Gober, et al., petitioners

v.
City of B irmingham

No. 67
F . L. S huttlesworth, et al., petitioners

V .

City of B irmingham

No. 71
J ames R ichard P eterson, et al., petitioners

v.
City of Greenville

ON W R I T S  O F  C E R T I O R A R I  T O  T H E  S U P R E M E  C O U R T S  O F  N O R T H  
C A R O L I N A ,  L O U I S I A N A ,  A N D  S O U T H  C A R O L I N A ,  A N D  T O  T H E  
C O U R T  O F  A P P E A L S  O F  A L A B A M A

(1 )



2

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE1

O PINIO NS BELOW

The opinion of the Supreme Court of N orth Caro­
lina in A v e n t  (A. 72-90) 1 2 is reported a t 253 N.C. 580, 
118 S.E. 2d 47.

The opinion of the Supreme Court of Louisiana in 
L o m b a r d  (L. 141-151) is reported at 241 La. 958, 132 
So. 2d 860. The opinion of the Criminal D istrict 
Court of Orleans P arish  overruling petitioners’ mo­
tion to quash (L. 28-86) is not reported.

The opinion and orders of the Alabama Court of 
Appeals (G. 57-64, 88, 124, 144, 178, 194, 220, 236, 
262, 278) and the orders of the Supreme Court of 
Alabama (G. 69, 92, 128, 144, 182, 194, 224, 236, 266, 
278) in  G o b e r  are reported, in te r  a lia , a t 133 So. 2d 
697-708.

The opinions of the Alabama Court of Appeals 
(S. 42-44, 67) and the orders of the Supreme Court 
of Alabama (S. 46, 69) in  S h u tt le s w o r th  are reported 
a t 134 So. 2d 213.

1 This brief will not consider Wright v. Georgia, No. 68. 
Since that case involves arrests for unlawfully assembling on 
municipal property, it does not present the paramount issue 
considered in the cases discussed in this brief as to the rights of 
private businesses to exclude Negroes from all or a portion of 
their premises. We believe, however, that the convictions in 
Wright should be reversed for reasons advanced by the petitioners 
in that case. The United States, as amicus curiae, is filing a 
separate brief in Griffin v. Maryland, No. 26, this Term.

2 The records in Avent v. North Carolina, No. 11, Lombard 
v. Louisiana, No. 58, Gober v. Birmingham, No. 66, Shuttles­
worth v. Birmingham, No. 67, and Peterson v. Greenville, No. 
71, are referred to as “A.,” “L.,” “G.” “S.,” and “R,” respec­
tively.



3

The opinion of the Supreme Court of South Caro­
lina in  P e te r s o n  (P . 55-59) is reported a t 122 S.E. 
2d 826. The opinion of the Greenville County Court 
(P . 50-52) is not reported.

JU R ISD IC TIO N

The judgm ent of the Supreme Court of North 
Carolina in A v e n t  was entered on Jan u ary  20, 1961 
(A. 90).

The judgm ent of the Supreme Court of Louisiana 
in L o m b a r d  was entered on June  29, 1961 (L. 149).

The judgments of the Alabama Court of Appeals 
in G o b e r  were entered on May 30, 1961 (G. 57, 88, 
124, 144, 178, 194, 220, 236, 262, 278). Petitions to 
the Supreme Court of Alabama for w rits of certiorari 
were denied on September 14, 1961 (G. 69, 92, 128, 
144, 182, 194, 224, 236, 266, 278) ; and applications 
for rehearing were overruled on November 2, 1961 
(G. 71, 92, 128, 144, 182, 194, 224, 236, 266, 278.)

The judgm ents of the Alabama Courts of Appeals 
in S h u tt le s w o r th  were entered on May 30, 1961 (S. 
43, 66). Application fo r rehearing before the Court 
of Appeals of Alabama was denied on June  20, 1961 
(S. 45, 68). A petition to the Supreme Court of 
Alabama for a w rit of certiorari was denied on Sep- 
tember 25, 1961 (S. 46, 69), and application fo r re­
hearing was overruled on November 16, 1961 (S. 51, 
74).

The judgm ent of the Supreme Court of South C ar­
olina in P e te r s o n  was entered on November 10, 1961 
(P . 55), and a petition fo r rehearing was denied on 
November 30,1961 (P . 62).



4

The petitions for w rits of certiorari were granted 
by this Court on June 25, 1962 (370 U.S. 934-935;
A. 92, L. 152, Gr. 279, S. 75, P . 65). The jurisdiction 
of th is Court rests upon 28 TJ.S.C. 1257 (3).

QUESTIONS PR E SE N T E D

Petitioners are Negroes who were invited into de­
partm ent and variety stores as customers. They were 
refused service a t lunch counters or in lunch rooms 
under the p roprie to r’s practice of enforcing racial 
segregation in the sto re’s dining facilities. In  Nos. 
11, 66, 67 and 71, there was little evidence as to 
motive, but the p rop rie to r’s practice of racial dis­
crim ination in fact conformed to current municipal 
ordinances requiring racial segregation in public 
eating places. In  No. 58, although there was no 
ordinance specifically requiring segregation in public 
eating places, the p rop rie to r’s practice of racial dis­
crim ination knowingly conformed to a current and 
pervasive State policy of m aintaining racial segre­
gation expressed in numerous legislative enactments 
and official declarations. Petitioners in each case re­
fused to leave the lunch counters or lunch rooms upon 
being denied service. They were arrested and con­
victed of crim inal trespass or a sim ilar offense.

The questions presented a re :
1. W hether, upon the records in Nos. 11, 66, 67 and 

71, the convictions are sufficiently related to the ordi­
nances requiring racial segregation tha t they should 
be set aside on the ground tha t they result from  a 
denial of equal protection of the laws in violation of 
the Fourteenth Amendment.



2. W hether, upon the record in No. 58, the convic­
tions are sufficiently related to the State laws and 
policies m aintaining racial segregation that they 
should be set aside on the ground tha t they result 
from  a denial of equal protection of the laws in 
violation of the Fourteenth Amendment.

IN T E R E ST  OF T H E  U N IT E D  STATES

The fundam ental constitutional issue in  these cases 
is to what extent the Fourteenth Amendment con­
demns, as a denial of equal protection of the laws, 
enforcement by the States of racial segregation in 
private businesses open to the general public. This 
problem involves not only the power of the States but 
also the constitutional rights of millions of American 
citizens. On the one hand, millions of Negroes (as 
well as some other groups) are subjected to racial 
discrim ination in private businesses open to the 
public. The “sit-in” activities resulting in peti­
tioners’ convictions were p a rt of a widespread peace­
ful protest against this practice. Petitioners claim 
that the involvement of the States in their convic­
tions violates the equal protection clause of the 
Fourteenth Amendment. On the other hand, the 
respondents invoke both the power of the States to 
preserve order and also the freedom and responsi­
bility of individuals to make their own decisions 
concerning the use of private property  and choice 
of associates. Thus, the basic issue in  these cases 
involves the competing claims of large numbers of 
citizens, and of the States, and is of grave importance 
to the country as a whole.



6

The petitions for certiorari in each of these cases 
urge various grounds fo r reversal. Since the prim ary 
interest of the United S tates is in  the fundam ental 
question which is described above, we will confine this 
b rief on behalf of the United States to a discussion 
of that question.

STATEM EN T 3 * *

1. A VENT V. STATE OF NORTH CAROLINA, NO. 11

a. S ta tu te s  I n v o lv e d .—Chapter 13, Section 42, of the 
Code of Durham, N orth Carolina (1947), provides:

In  all licensed restaurants, public eating 
places and ‘weenie shops’ where persons of the 
white and colored races are perm itted to be 
served with, and eat food, and are allowed to 
congregate, there shall be provided separate 
rooms fo r the separate accommodation of each 
race. The partition  between such rooms shall 
be constructed of wood, p laster or brick or like 
m aterial, and shall reach from  floor to the ceil­
ing. Any person violating this section shall, 
upon conviction, pay a fine of ten dollars and 
each day’s violation thereof shall constitute a 
separate and distinct offense.

Petitioners were convicted of violating Section 14-134 
of the N orth Carolina General Statutes, which 
provides:

T r e s p a s s  on la n d  a f t e r  b e in g  fo r b id d e n . * * * 
I f  any person a fte r being forbidden to do so, 
shall go or enter upon the lands of another, with­
out a license therefor, he shall be guilty of a mis­
demeanor and on conviction, shall be fined not

3 We have set forth fully only the facts of each of the cases
that may be relevant to the legal issues that we consider in this
brief.



7

exceeding fifty dollars or imprisoned not more 
than th irty  days * * *.

b. T h e  F a c ts .—On May 6, 1960, petitioners, five Ne­
gro students from  N orth Carolina College and two 
white students from  Duke University, both of which 
are in Durham, North Carolina, entered K ress’ De­
partm ent Store in Durham  (A. 1, 2, 4, 5, 6, 8, 9, 35). 
On the two selling floors of the store, there are ap­
proximately fifty counters (including a “ standup” 
lunch counter) which serve Negroes and whites w ith­
out racial distinction (A. 21, 22). No sign a t the 
store’s entrance barred or conditioned Negro patron­
age (A. 22). Petitioners made various purchases, as 
some of them had in the past, and eventually went to 
the basement lunch counter (A. 21, 35, 39, 41, 43, 46, 
47, 48).4 There a sign stated “ Invited  Guests and 
Employees Only” (A. 23). The m anager testified that, 
although no invitations as such were sent out, white 
persons automatically were considered guests; Ne­
groes, and whites accompanied by Negroes, were not * * * * 36 * * 39 * 41

4 Petitioners were participants in an informal student or­
ganization which opposed racial segregation. They believed
that they had a right to service at Kress’ basement lunch
counter after having been customers in other departments (A.
36, 40, 44-45). Some had previously picketed the store to pro­
test its policy of welcoming Negroes’ business while refusing
them lunch counter service (A. 41, 43, 46, 48, 49). Some of the 
petitioners had requested and had been denied service on pre­
vious occasions at Kress’ lunch counter (A. 37). Some of the 
petitioners testified that they expected to be served at the base­
ment lunch counter because they had been served upstairs (A.
39, 48, 49). Various petitioners testified that they did not
expect to be arrested for trespassing on this occasion (A. 37, 38,
41, 43, 48, 49).



8

(A. 21-23).5 The counter was separated from  other 
departm ents by an iron railing (A. 21). The store 
m anager testified th a t the entrances to the counter 
were chained, but petitioner S treeter denied this (A. 21, 
37).

The manager declined to serve the students and 
asked them to leave (A. 21). He stated th a t if  Ne­
groes wanted service they might obtain i t  a t a  stand- 
up counter upstairs (A. 22). The m anager then 
called the police (A. 21). A fter being asked by the 
police officers to leave, petitioners persisted in their 
refusal and were arrested for trespass (A. 21, 2A-25) .6 * 8

6 The manager testified that “the luncheonette was open for 
the purpose of serving customers food. Customers on that date 
were invited guests and employees” (A. 21). He testified fur­
ther that “We had signs all over the luncheonette to the effect 
that it was open for employees and invited guests. Mr. Pear­
son [petitioners’ Negro attorney], I  do not consider you an in­
vited guest, under the circumstances right now. I  do consider 
Mr. Murdock [the State Solicitor] an invited guest under the 
circumstances” (A. 22). He also testified: “I  would serve this 
young lady (indicating the white female defendant), but I  asked 
her to leave when she gave her food to a Negro. She was my 
invited guest at that time, up until the time that I  asked her to 
leave” (A. 23).

Portions of the record suggest that the police were already 
present at the time the manager first asked the students to 
leave (A. 35, 40, 42, 44, 47, 48). For example, petitioner Phil­
lips testified that “When I  took a seat at the lunch counter, 
I  was approached by Mr. W. K. Boger, who said, ‘You are not 
an invited guest, and you are not an employee; so I  am asking 
you to leave.’ Before I  could ask him who he was, the police 
officer directed me to the back of the store” (A. 40).

8 I t  is not clear whether, after the arrival of the police officer,- 
the manager again asked petitioners to leave (compare A. 21 
with A. 24- 25).

Petitioner Nelson, one of the white students, was asked to 
leave after she offered food to Negroes. The manager told her-



9

The Kress m anager explained his refusal to serve 
the students a t the tria l (A. 22-23) :

* * * I t  is the policy of our store to wait on 
customers dependent upon the customs of the 
community. * * * I t  is the policy of our 
store to operate all counters in the interest of 
the customs of the community. * * * In  the 
interest of public safety it is our policy to re­
fuse to serve Negroes a t the luncheonette down­
stairs in our seating arrangements. I t  is also 
the policy of Kress to refuse the patronage of 
white people in  the company of Negroes a t that 
counter. Even if  Negroes accompanied by 
white people were orderly at our luncheonette 
because of the policy of the community we 
would not serve them, and tha t was our policy 
p rio r to May 6, 1960. * * * I t  is not the cus­
tom of the community to serve Negroes in the 
basement luncheonette, and tha t is why we pu t 
up the signs, “ Invited Guests and Employees 
Only.”

Petitioners were indicted in the Superior Court of 
Durham  County, the indictments stating that each 
petitioner (A. 1-10):

with force and arms, * * * did unlawfully, 
willfully, and intentionally a fte r being for­
bidden to do so, enter upon the land and tene­
m ent of S. H . K ress and Co. store * * * said 
S. H . K ress and Co., owner, being then and 
there in actual and peaceable possession of said 
premises, under the control of its m anager and

that she was “antagonizing the customers” (A. 42). Petitioner 
Brown was told by the manager that “ [t]he custom has not been 
changed, and you will have to leave” (A. 44).

658676— 62------ 2



10

agent, W. K. Boger, who had, as agent and 
manager, the authority  to exercise his control 
over said premises, and said [petitioner] after 
being ordered by said W. K. Boger, agent and 
manager of said owner, S. H. Kress and Co., 
to leave that p a rt of the said store reserved for 
employees and invited guests, willfully and un­
lawfully refused to do so knowing or having 
reason to know tha t * * * [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.7 

Petitioners pleaded not guilty and were tried  by a 
ju ry  on June  30 and Ju ly  1, 1960 (A. 15-16). The 
ju ry  returned a verdict of guilty (A. 16). Three of 
the petitioners received thirty-day sentences, one re­
ceived a twenty-day sentence, one received a fifteen- 
day sentence, and, in two cases, sentence was continued 
fo r two years (A. 16-20).

On Jan u ary  20, 1961, the Supreme Court of North 
Carolina affirmed the convictions (A. 73). In  a 
lengthy opinion, the court emphasized tha t (A. 78) :

No statute of N orth Carolina requires the ex­
clusion of Negroes and of W hite people in com­
pany with Negroes from  restaurants,8 and no 
statute in  this State forbids discrim ination by 
the owner of a restauran t of people on account 
of race or color, or of W hite people in  company 
with Negroes. In  the absence of a statute for-

7 The indictments of all the petitioners carried a racial desig­
nation, v iz ., “CM,,” “WM,” “CF,” and “WF” (A. 2, 3, 5, 6, 7, 
9 , 10) .

8 A municipal ordinance in Durham, however, does require 
segregation in restaurants. See supra , p. 6.



11

bidding discrimination 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 W hite people in  company with 
Negroes or vice versa, if  he so desires. H e is not 
an innkeeper. This is the common law. * * *

2. LOMBARD V. STATE OF LOUISIANA, NO. 58

a. S ta tu te  I n v o lv e d .—The Louisiana statute under 
which petitioners were convicted is La. R.S. 14:59(6), 
as amended 1960, which provides:

Criminal mischief is the intentional perform ­
ance of any of the following a c ts :

* * * * *
(6) Taking tem porary possession of any p a rt 

or parts  of a place of business, or rem aining in 
a place of business a fte r the person in charge 
of such business or portion of such business 
has ordered such person to leave the premises 
and to desist from  the tem porary possession of 
any p a rt or parts  of such business.

The statute states th a t “ [w] ho ever commits the crime 
of crim inal mischief shall be fined not more than 
$500.00, or imprisoned fo r not more than  one year, or 
both.”

b. T h e  F a c ts .—On September 10, 1960, one week 
prio r to the “sit-in” demonstration out of which this 
case arose, a group of Negroes conducted a t Wool- 
w orth’s D epartm ent Store in New Orleans, Louisiana, 
the first “ sit-in” demonstration to occur in th a t city. 
On the same day, the New Orleans Superintendent of



12

Police issued the following statement, which was pub­
lished in the New Orleans T im e s -P ic a y u n e  (L. 17,139- 
140):

The regrettable sit-in activity today at the 
lunch counter of a Canal St. chain store by sev­
eral young white and Negro persons causes me 
to issue this statement to the citizens of New 
Orleans.

W e urge every adult and juvenile to read this 
statement carefully, completely and calmly.

F irst, it is im portant that all citizens of our 
community understand that this sit-in demon­
stration was initiated by a very small group.

W e firmly believe tha t they do not reflect the 
sentiments of the great m ajority  of responsible 
citizens, both white and Negro, who make up our 
population.

W e believe it is most im portant th a t the 
m ature responsible citizens of both races in  this 
city understand that and tha t they continue the 
exercise of sound, individual judgment, good­
will and a sense of personal and community 
responsibility.

Members of both the white and Negro groups 
in New Orleans fo r the most p a rt are aware of 
the individual’s obligation fo r good conduct— 
an obligation both to himself and to his com­
munity. W ith  the exercise of continued, re­
sponsible law-abiding conduct by all persons, 
we see no reason fo r any change whatever in 
the normal, good race-relations tha t have tra ­
ditionally existed in New Orleans.

A t the same time we wish to say to every 
adult and juvenile in  this city tha t the police 
departm ent intends to m aintain peace and or­
der.



13

No one should have any concern or question 
over either the intent or the ability of this de­
partm ent to keep and preserve peace and order.

As p a rt of its regular operating program, the 
New Orleans police departm ent is prepared to 
take prom pt and effective action against any 
person or group who disturbs the peace or 
creates disorder on public or private property.

W e 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 tha t such actions are not in the com­
m unity interest.

F inally, we want everyone to fully under­
stand tha t the police departm ent and its per­
sonnel is ready and able to enforce the laws of 
the city of New Orleans and the state of 
Louisiana.9

On September 13, 1960, four days p rio r to the “ sit- 
in” demonstration out of which this case arose, Mayor 
DeLesseps M orrison also issued a statem ent which was 
prin ted  in the T im e s -P ic a y u n e . The Mayor said (L. 
14, 15,138-139):

I  have today directed the superintendent of 
police tha t no additional sit-in demonstrations 
or so-called peaceful picketing outside retail 
stores by sit-in demonstrators or their sympa­
thizers will be permitted.

The police department, in my judgment, has 
handled the in itial sit-in demonstration F riday

9 At the trial of the petitioners in Lom bard , the Superintend­
ent of Police testified that the reason for his statement was that 
he “was hoping that situations of this kind would not come up 
in the future to provoke any disorder of any kind in the com­
munity” (L. 17).



14

and the follow-up picketing activity Saturday 
in an efficient and creditable manner. This is 
in keeping with the oft-announced policy of the 
New Orleans city government that peace and 
order in our city will be preserved.

I  have carefully reviewed the reports of these 
two initial demonstrations by a small group of 
misguided white and Negro students, or form er 
students. I t  is my considered opinion tha t re­
gardless of the avowed purpose or intent of the 
participants, the effect of such demonstrations 
is not in the public interest of this community.

Act 70 of the 1960 Legislative session rede­
fines disturbing the peace to include “ the com­
mission of any act as would foreseeably disturb 
or alarm  the public.”

Act 70 also provides that persons who seek 
to prevent prospective customers from  entering 
private premises to transact business shall be 
guilty of disorderly conduct and disturbing the 
peace.

Act 80—obstructing public passages—pro­
vides tha t “ no person shall wilfully obstruct 
the free, convenient, and normal use of any 
public sidewalk, street, highway, road, bridge, 
alley or other passage way or the entrance, cor­
ridor or passage of any public building, struc­
ture, w ater c ra ft or fe rry  by impeding, hin­
dering, stifling, retard ing  or restraining traffic 
or passage thereon or therein .”

I t  is my determ ination th a t the community 
interest, the public safety, and the economic 
welfare of this city require th a t such demon­



15

strations cease and that henceforth they be pro­
hibited by the police departm ent.10

On September 17, 1960 (one week a fte r the Super­
intendent’s statem ent and four days a fte r the M ayor’s 
statem ent), the petitioners here, three Negroes and 
one white person, sat down at counter seats a t the 
white refreshm ent counter a t M cCrory’s Five and Ten 
Cents Store in New Orleans. M cCrory’s, which “ ca­
ters to the general public,” is a branch of a national 
chain doing business in th irty-four states (L. 19).

Although no sign indicated any racial restriction 
as to service, the counter where petitioners sat had 
been restricted to white patronage since 1938 (L. 105, 
110). The counter manager (Mr. Graves) advised 
petitioners tha t he could not serve them there and that

10 The Mayor testified at petitioners’ trial that the superin­
tendent of police “serves under [the Mayor’s] direction,” and 
that “ [i]t is the policy of my office and that of the City Govern­
ment to set the line or direction of policy to the police depart­
ment” (L. 13). The Mayor further testified that his statement 
was issued “following the initial sit-in and follow-up demon­
stration the next day, I  believe by picketing in the same area, 
and I  outlined to the police department and the community 
the two acts of the Legislature 70 and 80 which dealt with this 
matter and gave the reasons in the public interest that we 
should carry out the intent and purpose of the law” (L. 14). 
He testified that his statement “encompasse[d] any laws cov­
ering questions of disturbing the peace, of public acts which 
would create a disturbance or confusion, disturbances of the 
peace, and specifically quoted these two acts because they are 
of recent nature and somewhat specific in regard to the ques­
tion, but I  have a feeling that matters of this kind, when per­
sons engage in this type of demonstration as a natural consequence 
will create disturbances of the peace and in many cases set off 
chain reactions that can be much more serious” (L. 16).



16

they could be served at a colored counter in the rear 
of the store (L. 105, 110). The petitioners made no 
reply (L. 105). Although petitioners were not cre­
ating a disturbance or doing anything except sitting 
a t the counter (L. 108), Mr. Graves closed the coun­
te r because Negroes were present (L. 105, 108). P e ti­
tioners nonetheless remained seated. The police were 
called by store personnel (L. 107), and the store m an­
ager, Mr. B arrett, arrived (L. 112). Shortly there­
a fte r several police officers arrived (L. 112). Mr. 
B arre tt informed the police tha t he wanted the Ne­
groes to leave, but an officer inform ed him th a t he 
m ust request them to leave in  the presence of the po­
lice (L. 126). The police then witnessed Mr. B a rre tt’s 
request to the petitioners that they leave the counter 
area (L. 113). W hen petitioners did not leave, a po­
lice officer, M ajor Reuther, informed them tha t they 
were violating the law “ and if  the m anager insisted 
th a t they move we would have to p u t them under 
a rre s t” (L. 129). A fter a short period, the police 
arrested petitioners (L. 129), who were charged with 
crim inal mischief under La. R.S. 14:59(6), s u p r a ,

p. 10.
Testimony was adduced a t a hearing on petitioners’ 

motion to quash the inform ation and a t the tria l on 
the m erits concerning the reasons tha t petitioners 
were not served a t the counter. The store manager 
testified tha t he exercises discretion as to whether Ne­
groes should be served11 (L. 21), and tha t “  [t]he  policy

11 Mr. Barrett testified that he was authorized by the “na­
tional office” of McCrory’s chain to determine the segregation 
policies of the New Orleans store (L. 21). The trial court



17

[as to serving Negroes] is determined by local trad i­
tion, law and custom, as in terpreted by m e”  (L. 21). 
The m anager testified fu rther tha t when, as occasion­
ally happened, Negroes sought service at a white lunch 
counter he “ would tell them  we had a colored counter 
in the back, because they m ight be passing through 
from the N orth and not understand Southern cus­
tom s” (L. 117-118).* 12

W hen asked whether “ in the last 30 to 60 days [he 
had] entered into any conference with other depart­
ment store m anagers here in New Orleans relative to 
sit-in problem s” (L. 22) the m anager replied that 
“ [w]e have spoken of i t ”  (L. 23).

Mayor M orrison and the Superintendent of Police 
testified concerning the custom in New Orleans writh 
respect to segregated eating facilities. The Mayor 
stated tha t to his personal knowledge no lunch coun­
te r in the city served both Negroes and whites to­
gether (L. 15). The Superintendent of Police testi­
fied that, in his experience as a member of the police 
force for fifteen years, and as a resident of New Or­
leans, he had not known of “any public establishments 
that cater to both Negroes and whites a t the same 
lunch counter in  the city of New Orleans” (L. 18).

The tria l court refused to allow a series of questions 
designed to ascertain whether the m anager’s decision

sustained objections to questions designed to reveal the practice 
of McCrory’s stores in other states (L. 19-20, 22) and the 
power of the national office to overrule a manager’s decision 
(L. 22).

12 Mr. Barrett also replied “ [y]es, sir” to counsel’s question 
whether his decision was based on “state policy and practice 
and custom in this area” (L. 25).



18

was dictated or influenced by “state policy.” Thus, 
Mr. B a rre tt was not perm itted to say whether he 
“discussed methods and means to handle these situa­
tions if  they arise in any particu lar departm ent 
sto re” (L. 23), although counsel observed tha t the 
“ purpose of this Y our Honor is a question of conform­
ity  with state policy” (L. 23). Again, the manager 
was not allowed to reply to questions as to whether “ if 
the state policy or practice would be different you 
would exercise your discretion in a different m aim er” 
and whether “ if  there was no custom of segregated 
lunch counters or no state policy, the general atmos­
phere would be different, would you allow Negroes to 
eat a t white lunch counters” (L. 25, 26). Similarly, 
the tr ia l court ruled out a question to Mr. Graves, the 
counter manager, as to “why [he was] not allowed 
to serve them,” despite counsel’s contention tha t the 
question was “ m aterial, because if  Mr. Graves felt 
there was some state policy tha t prevented him from  
serving these defendants this is a clear state action” 
(L. 109-110).13

The tria l court also excluded a series of questions 
designed to ascertain whether the police had been 
actively involved in the m anager’s decision to refuse 
service to petitioners. Captain Cutrera, one of the 
arresting officers, was not perm itted to say whether

13 Petitioners introduced into evidence a series of bills, some of 
which were ultimately enacted into law, of the 1960 session of 
the Louisiana state legislature. Petitioners contended that these 
bills and statutes (including the criminal mischief statute 
under which petitioners were convicted) demonstrated a state 
policy of racial discrimination (see L. 26-27 and the opinion of 
the Louisiana Supreme Court., quoted infra , p. 19).



19

“ there was any plan approved by the police as 
to what [the store personnel] should do in the event 
of a sit-in” (L. 127-128). And Mr. B a rre tt was not 
allowed to reply to the question whether he had “ever 
met with members of the New Orleans Police D epart­
ment and discussed problems of sit-in demonstrations 
and how you or how they should be handled if  they 
arise in  your sto re1?” (L. 23). Similarly, counsel was 
not allowed to determine whether Mr. Graves had 
called the police “ on his own in itiative;” the question 
was asked in  order to learn whether he had “any 
plan * * * with the police” (L. 107).“

Petitioners were convicted of violating the 
“ criminal m ischief” law, sentenced to sixty days in 
jail, and fined $350 each (L. 8). The convictions 
were affirmed by the Supreme Court of Louisiana. 
S ta te  v. G o ld fin ch , 132 So. 2d 860, 241 La. 958 (1961) 
(L. 141-149). The State Supreme Court rejected the 
contention tha t “by content, reference and position 
of context [the statute] is designed to apply to, and 
be enforced in an a rb itrary  m anner against, members 
of the Negro race and those acting in concert w ith 
them ” (L. 145), stating (L. 145-146) :

* * * In  aid of this assertion certain House 
bills of the Louisiana legislature for 1960, in tro ­
duced in the same session with the contested 
statute, were offered in evidence. All of these 
bills did not become law, but some did. I t  is 
declared tha t th is law and the others enacted 14

14 Mr. Graves did testify at another point that he had called 
the police “as a matter of routine procedure,” and that he had 
“no particular plan” for the handling of sit-ins; they were to be 
handled like any other emergency situation (L. 106).



20

during the same session were designed to apply 
to and be enforced against, in  an a rb itrary  
manner, members of the Negro race. W e have 
carefully reviewed the provisions of these bills 
referred  to which were enacted into law and 
nowhere in their content or context do we find 
tha t any of them seek to discriminate against 
any class, group, or race of persons. W e there­
fore find no m erit in  this contention and, ac­
cordingly, dismiss i t  as being unsupported.

The court also considered the contention tha t “ the 
action of the manager of M cCrory’s was provoked or 
encouraged by the state, its policy, or officers, 
and * * * th a t this action of M cCrory’s was not its 
own voluntary action, but was influenced by the offi­
cers of the sta te” (L. 146). I t  held (L. 146-147):

The conclusion contended fo r is incompatible 
with the facts. Rather, the testimony supports 
a finding th a t the m anager of M cCrory’s had 
fo r the past several years refused service to  
Negroes, tha t the policy of the store was estab­
lished by him, th a t he had set out the policy 
and followed it consistently; tha t Negroes had 
habitually been granted access to only one 
counter w ithin the store and a deliberately 
provoked mischief and disturbance such as the 
one he complained of here had not previously 
occurred. * * *

Even under the provision of the questioned 
statute it is apparent th a t a prosecution is 
dependent upon the will of the proprietor, fo r 
only a fte r he has ordered the in tru d e r to re­
linquish possession of his place of business does 
a violation of the statute occur. The state, 

i therefore, w ithout the exercise of the pro-



21

p rie to r’s will can find no basis under the statute 
to prosecute.

These facts lead us to the conclusion tha t the 
existence of a  discrim inatory 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 
M cCrory’s. The action of bringing about the 
arrest of the defendants, then, was the inde­
pendent action of the m anager of the privately 
owned store, uninfluenced by any governmental 
action, design, or policy—state or municipal— 
and the arrest was accomplished in  keeping 
w ith M cCrory’s business practice established 
and m aintained long before the occasion which 
defendants seek to associate with a discrim ina­
tory  design by the state. * * *

The court fu rth er held th a t no constitutional provi­
sion prevented a p roprietor of a restau ran t from  re­
fusing service on the basis of race. I t  said (L. 148) :

The defendants have sought to show through 
evidence adduced a t the tr ia l th a t there is no 
in tegration of the races in  eating places in  
New Orleans and, therefore, the custom of 
the state is one th a t supports segregation and 
hence state action is involved. * * *

In  answer to this contention, the court stated that 
“segregation of the races * * * is not required by 
any * * * law of the State * * * bu t is the result of 
the business choice of the individual proprietors, both 
white and Negro, catering to the desires and wishes of 
their customers, regardless of what may stim ulate and 
form  the basis of the desires” (L. 148).



22

3. GOBER V. CITY OF BIRMINGHAM, NO. 66

a. S ta tu te s  I n v o lv e d .—Section 369 of the General 
City Code of Birmingham, Alabama (1944), provides:

S e p a r a tio n  o f  ra ce s .—I t  shall be unlawful to 
conduct a restauran t or other place fo r the 
serving of food in the city, a t which white and 
colored people are served in the same room, 
unless such white and colored persons are ef­
fectually separated by a solid partition  extend­
ing from  the floor upw ard to a distance of 
seven feet or higher, and unless a separate en­
trance from  the street is provided fo r each com­
partm ent.

Petitioners were convicted of violating Section 1436 
of the General City Code of Birmingham, Alabama 
(1944), which provides:

A f t e r  w a rn in g .—Any person who enters into 
the dwelling house, or goes or remains on the 
premises of another, a fte r being warned not to 
do so, shall on conviction, be punished as pro­
vided in Section 4, provided, th a t this Section 
shall not apply to police officers in the discharge 
of official duties.

1). T h e  F a c ts .—This case involves ten different peti­
tioners. On M arch 31, 1960, the petitioners, in  five 
groups of two, entered five departm ent stores in  the 
City of Birmingham. The facts relating to each of 
the cases are as follows:

(i) G o b e r  and D a v is .—Petitioners entered P iz itz ’s 
D epartm ent Store in Birmingham, Alabama (G. 43, 
50). Petitioner Davis purchased stocks, toothpaste, 
and a handkerchief (G. 43). They then proceeded to 
the mezzanine lunch counter where they attem pted to



23

order, but were ignored by the waitresses (G. 44). 
Although only white persons were seated at the lunch 
counter a t the time, there was no sign indicating that 
the counter was reserved fo r whites (G. 44, 50). 
Petitioners were approached by Mr. Pizitz, assistant 
to the president of the store. Pizitz, who did not 
identify himself to petitioners, told them that Negroes 
were served elsewhere in  the store (G. 23, 44 45). 
They were not directly asked to leave the store or the 
area in which they were sitting (G. 45). Mr. P iz itz ’s 
conversation with petitioners was described as follows 
(G. 23-24):

H e asked the defendants to leave the tea 
room area, told them that they could be served 
in  the Negro restau ran t in the basement. 

* * * * *
H e told them th a t they couldn’t  be served 

there and we had facilities in the basement to 
serve them. * * * H e told them it  would be 
against the law to serve them  there. * * *

Mr. Gottlinger, the controller of P iz itz ’s, testified 
that no official of Pizitz called the police (G. 26). 
He also testified tha t no official of the company filed a 
complaint (G. 27).

Police Officer M artin  of the Birm ingham  Police 
made the arrests (G. 19). H e had received a report 
from  a superior officer tha t there was a disturbance 
at P iz itz’s (G. 19). He went to the dining area, 
found it  closed to customers, and saw two Negro 
men seated and conversing together (G. 18-19). 
M artin heard no one speak to petitioners (G. 19). 
Following the direction of his superior, and without



24

himself warning petitioners, M artin placed them 
under arrest and charged them with trespassing after 
warning (G. 20).

(ii) H u tc h in s o n  and K in g .—Petitioners took seats 
a t tables in the mezzanine dining area a t Loveman’s 
D epartm ent Store (G. 107, 115). Loveman’s is a gen­
eral departm ent store and invites Negro trade in  all 
departm ents with the exception of dining facilities 
(G. 114, 120). The dining room is a concession run  
by the P rice Candy Company but follows Loveman’s 
policies and regulations (G. 114).15

Soon a fte r petitioners were seated, Mr. Kidd, a 
member of the store’s protective department, ap­
peared.16 17 A t the trial, he described what occurred in 
these term s (G. 115) :

There was two colored boys sitting on the 
mezzanine and I  notified the people who were 
milling around, I  notified all of the people, 
white people, to leave as we were closing the 
mezzanine in  their presence—I  did not directly 
speak to the two colored boys who were sitting 
a t a table * * V 7

Mr. K idd announced three times tha t the dining 
area was closed and pu t up signs to tha t effect (G.

15 Mr. Schmid, the dining area concessionaire, testified that 
he knew of no dining facilities in Loveman’s for Negroes 
(G. 113-114). However, Mr. Kidd of Loveman’s protective 
department testified that the store did have separate dining 
facilities for Negroes (G. 119).

18 Apparently, a restaurant employee called the protective 
department (G. 112). According to Mr. Schmid, this had 
been done since, “naturally,” there was a “disturbance of the 
peace” (G. 112). The only actual disturbance described, how­
ever, was that “* * * the waiters went off the floor” (G. 112).

17 Mr. Schmid likewise did not speak to petitioners (G. 110).



25

116).18 19 About forty  or fifty people were seated a t 
the time these announcements were made, and some of 
them apparently stayed and finished their lunches 
(G. 111).

About twenty-five white patrons were seated when 
the police arrived, but none were arrested (G. 113).18

There is nothing in  the record to indicate who called 
the police.20 Police officer M artin, who arrested peti­
tioners, had been told by a motorcycle policeman to go 
to Loveman’s (G. 107). A t the dining area, he ob­
served a rope tied from  one post to another and a sign 
stating tha t the area was closed (G. 107). H e saw 
two Negro men a t a table but had no conversation 
with them “other than to tell them they were under 
a rre s t”  (G. 107). Officer M artin did not know of 
his own personal knowledge that anyone from  Love- 
m an’s had asked petitioners to leave but believed that 
his superior officer knew this (G. 108).21 M artin

18 When asked what caused him to close the lunchroom, Kidd 
testified: “The commotion that was on the mezzanine. I did 
not know what was the cause of the commotion. When I 
began closing the place down then I noticed after the crowd 
had dispersed that the two colored boys were occupying a 
table” (G. 117). The commotion Kidd referred to was the 
people standing up and milling around (G. 117).

19 Mr. Kidd testified, however, that everyone left immediately 
when he announced the closing of the lunch-room (G. 118).

20 Mr. Schmid did not know who called the police and testi­
fied that his secretary and cashier had instructions to call the 
store detective in case of disturbances (G. 112).

21 Apparently at about the time of the arrest, Police Lieu­
tenant Purvis approached Mr. Schmid and stated that “someone 
called us that you had two people in here that were trying to 
be served * * *” (G. 112). Schmid pointed to petitioners (G. 
112).

6586.76— 62.---------3



26

charged petitioners with trespass a fte r warning (G. 
109).

(iii) P a r k e r  and W e s t .—Petitioners entered New­
berry’s, a variety store open to the general public (G. 
158, 165). There are two lunch counters in New­
b erry ’s for white customers—one on the first floor 
where these “sit-ins” occurred and one in the base­
ment (G. 163). There is a Negro lunch counter on 
the fourth  floor which has a “for colored only” sign 
(G, 163, 166).

A t least one of the petitioners made purchases of 
paper and books (G. 170). They then sat a t the lunch 
counter (G. 158-159). No sign a t the lunch counter 
indicated that it was reserved for whites (G. 166, 
171). W hen Mrs. Gibbs, the store detective, saw the 
petitioners, she (G. 162) :

* * * went over to the lunch counter * * * 
and identified myself and told them th a t they 
would have to leave, they couldn’t  be served 
there, but if  they would go to the fourth  floor 
we have a snack bar fo r colored there and they 
would be served on the fourth  floor.

Assistant Store M anager Stallings also spoke with 
petitioners (G. 164):

W ell I  asked them, I  said, “ You know you 
can’t  do th is .”  I  said, “W e have a lunch 
counter up on the fourth  floor fo r colored 
people only. W e would appreciate i t  if  you 
would go up there .”

Mr. Stallings did not call the police, did not make 
a complaint to the police, and did not know whether



27

anybody else d id 22 ($ .1 6 5 ). Police officer Myers was 
directed by a radio call from  police headquarters to 
proceed to Newberry’s (G*. 158-159). Myers under­
stood that a fellow officer had received a complaint 
from  a Mr. Stallings, whose capacity a t the store—or 
even whether he was an employee of Newberry’s— 
Myers did not know (G. 160-161). A t Newberry’s, he 
encountered something “out of the ordinary ,”  v iz . ,  
“ [t]wo colored males were sitting a t the lunch counter” 
(G. 158). Myers did not speak with petitioners nor 
did he witness a conversation among petitioners and 
any store employee (G. 159). Nevertheless, Myers 
arrested petitioners for trespass a fte r warning.23

(iv) S a n d e r s  and W e s tm o r e la n d .—Petitioners en­
tered the Kress dime store in Birmingham, a general 
departm ent store soliciting the trade of the general 
public (G. 214-215). I t  has no food service facilities 
for Negroes (G. 215), who are, however, invited to 
buy food and bakery items to carry  out (G. 218). 
W hite and Negroes purchase from the same counters 
at other departm ents (G. 216).

22 Stallings, when asked “Did any other official at Newberry’s 
call the police?,” replied: “Someone, now I don’t remember 
who this person was, but someone said to me that we called 
the police, I  don’t know who it was. I  don’t remember that” 
(G. 165).

23 Petitioner West testified that when officer Myers arrived on 
the scene he began to motion white people away from the lunch 
counter but all of them did not leave (G. 172). “After he 
started motioning the white people away,” West stated, “we 
started to get up and when we started to get up one got me in 
the back or somewhere in behind. * * * After I  saw him mo­
tioning other people up I said, ‘Let’s go.’ And we started to 
get up” (G. 172).



28

A fter petitioners sat down a t a  bay in the lunch 
counter, K ress’ lunch counter manager told them “ we 
couldn’t serve them and they would have to leave” 
(G. 211). A fter the manager turned out the lights in 
the bay in which petitioners were sitting, petitioners 
moved to another (G. 211). The m anager then closed 
down all the bays and turned out all the lights in the 
bays (G. 212).

Officer Caldwell, upon receiving a call to go to 
K ress’ store, went to the basement and observed that 
the lunchroom was closed and “ two black m ales” were 
“ sitting there” (G. 209). The manager then informed 
the policeman, in the presence of petitioners, tha t 
“ they couldn’t be served and he had turned  the lights 
out and closed the counter” (G. 209).24 Two police­
men entered the bay where petitioners were seated and 
twice asked them to get up (G. 212). A fter addi­
tional policemen entered, officer Caldwell arrested peti­
tioners, although no one had asked liirnMo do so (G. 
209, 210), and the officers escorted petitioners from  
the store (G. 212).25

(v) W a lk e r  and W il l i s .—Petitioner W alker en­
tered W oolworth’s store to purchase handkerchiefs 
and a b irthday g ift for a friend (G. 255). Petitioner 
W illis purchased various non-food items (G. 255).

24 The officer did not hear anyone tell petitioners to leave the 
counter (G. 210). The counter manager had not called the 
police, requested an arrest or signed a complaint. Nor did the 
store manager do any of these things in the counter manager’s 
presence (G. 213-214).

25 A woman already seated at the counter remained after the 
“closing” and, so far as the counter manager knew, was not 
arrested (G. 217-218).



29

They were not refused service at any non-food counter 
(G. 257-258), and W alker testified that he “ really ex­
pected service” a t the lunch counter because he "had  
been served prior to coining to the [lunch] counter” 
(G. 259).

Petitioners proceeded to the lunch counter and sat 
down (G. 255). There were no signs indicating that 
the lunch counter was reserved for whites (G. 257). 
A waitress said to petitioner, “ I ’m sorry I  can’t serve 
you,” but they remained seated at the counter (G. 
256).

Two police officers arrived in response to a call 
from the Birmingham  police radio (G. 252). Mrs. 
Evans, the manager of the lunch counter, informed one 
officer that “ she had told the boys to leave, tha t the 
place was closed, and the second time she directed her 
conversation to the defendants and told them it was 
closed and they would have to leave, she would not 
serve them ” (G. 252-253).26 Officer Casey testified 
that no one directly instructed the police to a rrest pe­
titioners (G. 253-254), but that he understood Mrs. 
E vans’ “ complaint” that “ she wanted the boys out of 
the store” as a request to remove them (G. 253). 
W hen asked “ did you take it upon yourself to make 
these arrests,” officer Casey replied: “ I  did under au­
thority  of the City of B irm ingham ” (G. 253).

26 This was the testimony of police officer Casey. Petitioner 
Walker, on the other hand, testified that no one connected with 
the store management had ever asked petitioners to leave, and 
that he did not see Mrs. Evans at the store at the time of the 
incident (G. 256).



30

Some white customers were o rdered . to leave the 
counter, and one was forced to do so by the police 
but was not arrested (G. 256). F inally  a policeman 
“asked [petitioners] to leave,”  saying, “ L et’s go,”  and 
informed them tha t they w ere . under arrest (G. 257). 
Officer Casey testified that a t the  time of arrest or 
shortly thereafter he informed petitioners that they 
had been arrested for trespass a fte r warning (G. 254).

The complaint against each of the ten petitioners 
charged that he or she “ did go or rem ain 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] a fte r being 
warned not to do so, contrary to and in  violation of 
Section 1436 of the General City Code of B irm ing­
ham of 1944” (G. 2-3, 73-74, 93, 129, 145, 183, 195- 
196, 225, 237, 267). Petitioners were convicted in 
the Recorder’s Court of the City of Birmingham. 
On appeal, they then received successive tr ia ls . d e  
n o vo  in  the Circuit Court of Jefferson County with 
the same judge, prosecutor and defense counsel.

A t the first tr ia l ( G o b e r  and D a v is ) ,  petitioners 
tried  to question a store official concerning the segre­
gation ordinance of the City of Birm ingham  (Section 
369 of the City Code of B irm ingham ) (G. 24-25):

Mr. H all [counsel for petitioners]. * * * I t  
is our theory of this case it is one based simply 
on the C ity’s segregation ordinance and Mr. 
Gottlinger, Mr. Pizitz, the police officers and 
everybody involved acted simply because of the



31

segregation law and not because it was Pizitz 
policy.

* * * * *

Mr. H all. A s I  understand it it is the theory 
of the City’s case, it is trespass a fte r warning. 
Our contention is tha t that is not a fact a t all, 
it is simply an attem pt to enforce the segrega­
tion ordinance and we are attem pting to bring 
it  out.

The Court. Does the complaint cite some 
statute %

Mr. H all. Trespass after warning. I f  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 prop­
erty  has instituted this prosecution. From  
the witness’ answers it doesn’t seem to be the 
case. I t  seems it is predicated on the segre­
gation ordinance of the City of Birmingham  
ra ther than  on the trespass. So what we are 
try ing  to bring out is whether or not the acts 
of P izitz were based on the segregation ordi­
nance or something that has to do with trespass 
on the property.

The court refused to perm it the store official to be 
interrogated about his knowledge of the law, on the 
ground th a t the reason tha t the store excluded peti­
tioners was im m aterial (G. 25-26). During the 
P a r k e r  and W e s t  tria l, petitioners’ counsel likewise 
attem pted to establish tha t petitioners were arrested 
because of the segregation policies of the City of 
Birmingham and not because of any policy of the 
store (G. 166-168). The court again ruled tha t this 
line of inquiry was not “competent” (G. 168).



32

Petitioners were again adjudged guilty in  the C ir­
cuit Court and, in a common sentencing proceeding, 
were fined $100 and given th irty  days’ hard  labor, 
with additional time for failure to pay the fine and 
court costs27 (G. 10-11, 82, 101-102, 137-138, 153, 
188, 203-204, 230, 245-246, 272). The Alabama Court 
of Appeals, affirming the conviction, wrote an opinion 
for the first case, G o b e r  v. S ta te  o f  A la b a m a , and 
affirmed all others in brief p e r  c u r ia m  orders citing 
G o b e r  (G. 57-64, 88, 124, 144, 178, 194, 220, 236, 262, 
278). In  its opinion in G o b e r , the Court of Appeals 
stated that ‘there is no question presented in the rec­
ord before us, by the pleading, of any statute or ordi­
nance requiring the separation of the races in  restau­
rants. The prosecution was fo r a criminal trespass 
on private p roperty” (G. 63). The court noted tha t 
petitioners were licensees and entered the premises by 
implied invitation and that, under such circumstances, 
the owners of the premises had the right to place limi­
tations as they saw fit (G. 63). “ I t  is fundam ental,” 
the court held, “ and requires no citation of authority, 
the grantor of a license, which has not become coupled 
with an interest, may revoke the license a t will” (G. 
64). The Supreme Court of Alabama denied cer­
tio rari in all the cases by identical orders (G. 69, 92, 
128,144, 182, 194, 224, 236, 266, 278).

27 For example, petitioner Gober was sentenced to 52 days of 
hard labor for failure to pay his $100 fine and the $5 costs ac­
crued in the Recorder’s Court, and to an additional 60 days of 
hard labor for failure to pay the costs accrued in the Circuit 
Court. The State of Alabama also was authorized to recover 
from Gober the costs expended for feeding Gober while he was 
in jail (G. 11; see also G. 82, 101-102, 137-138, 153, 188, 203-204, 
230, 245-246, 272).



33

4. SHUTTLESWORTH V. CITY OF BIRMINGHAM, NO. 67

a. S ta tu te s  in v o lv e d .—Petitioners were convicted 
of violating Section 824 of the General City Code of B ir­
mingham, Alabama (1944). Section 824 provides:

I t  shall be unlawful fo r 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.

Sections 369 and 1436 of the Birm ingham  code, which 
are also involved, are set forth  above at page 22.

b. T h e  F a c ts .2*—The record shows that Jam es Gober 
(one of the petitioners in the G o b e r  case (see s u p r a ,  
pp. 22-24) went to petitioner Shuttlesw orth’s home on 
March 30, 1960 (S. 27-28). Shuttlesworth, his wife, 
several students from  Daniel Payne College, and peti­
tioner Billups, who had driven one of the students to 
Shuttlesw orth’s home, were present (S. 28, 31). P e ti­
tioner Shuttlesworth “ asked for volunteers to p a r­
ticipate in the sit down dem onstrations” (S. 29). A 
“ list,” not otherwise described, was prepared (S. 30). 
One student “ volunteered to go to Pizitz [a depart­
ment store] at 10:30 [a.m.] [the next day] and take 
part in the sit down dem onstrations”  (S. 31). Shut­
tlesworth “didn’t  say th a t he would furn ish  Counsel 
but told him or made the announcement at th a t time 
that he would get them out of ja i l” (S. 31-32).

28 The record of the trial court proceedings in this case con­
sists largely of testimony of a city detective in the Circuit 
Court, of Jefferson County describing the evidence adduced at 
an earlier trial of petitioner Shuttlesworth for the offense in 
the city recorder’s court. Objections were regularly made to 
this testimony by the defendants on hearsay grounds (see, e.g.,
S. 24-25).



34

Gober and other students present a t the meeting did 
participate in a “ sit-in” demonstration, not otherwise 
described, on the next day, M arch 31, 1960 (S. 33).

Petitioners Shuttlesworth and Billups were charged 
w ith violating Section 824 of the Code of Birmingham, 
s u p r a , by inciting or aiding or abetting “ another per­
son to go or rem ain on the premises of another a fte r 
being warned not to do so,” in violation of Section 
1436 of the Birm ingham  Code, s u p r a  (S. 2, 53). They 
were convicted by the city recorder’s court. On ap­
peal to the Circuit Court of Jefferson County, they 
were separately tried  d e  n o vo . Petitioners Shuttles­
worth and Billups were again convicted by the court 
sitting without a jury , and sentenced, respectively, to 
180 days hard  labor and a $100 fine, and 30 days’ hard  
labor and a $25 fine (S. 40).

The convictions were affirmed by the Court of Ap­
peals 6f Alabama. The court stated, in the S h u tt le s ­
w o r th  case; tha t “ ‘[e] very one who incites any person 
to commit a crime is guilty of a common law misde­
meanor, even though the crime is not committed’ ”  
(S . 44). I t  also held (S. 44):

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 fo r them to rem ain on 
the premises presumably for an indefinite pe­
riod of time. There is a great deal of analogy 
to the sit-down strikes in the automobile indus­
try  referred  to in  N a tio n a l L a b o r  R e la tio n s  
B o a r d  v. F a n s te e l  M e ta l lu r g ic a l G o rp ., 306 U.S. 

r:. 240.



35

In  the B il lu p s  case, the Court of Appeals simply 
adopted the findings of fact and the legal conclusions 
set forth  in the S h u tt le s w o r th  case (S. 67). On Sep­
tember 25, 1961, the Supreme Court of Alabama 
denied w rits of certiorari in both cases, and on Novem­
ber 16,1961, rehearings were denied (S. 46, 69).

5. PETERSON V. CITY OF GREENVILLE, NO. 71

a. S ta tu te s  I n v o lv e d .—Section 31-8, Code of Green­
ville, South Carolina, 1953, as amended in 1958, 
provides:

I t  shall be unlawful for any person owning, 
managing or controlling any hotel, restaurant, 
cafe, eating house, boarding house or similar 
establishment to furnish meals to white persons 
and colored persons in the same room, or at the 
same table, or a t 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. Sepa­
rate  facilities shall be in terpreted to mean:

(a) Separate eating utensils and separate 
dishes for the serving of food, all of which shall 
he distinctly m arked by some appropriate color 
scheme or otherw ise;

(b) Separate tables, counters or booths;
(c) A distance of a t least thirty-five feet 

shall be m aintained 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 sim ilar n a tu re ;

(e) A separate facility shall be maintained 
and used for the cleaning of eating utensils 
and dishes furnished the two races.



36

Petitioners were convicted of violating Section 16- 
388, Code of Laws of South Carolina, 1952, as amended 
in 1960, 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, a fte r 
having been warned within six months preced­
ing, 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 filled not more than 
one hundred dollars, or be imprisoned for not 
more than th irty  days.

6. T h e  F a c ts .—At about 11:00 a.m. on August 9, 
1960, petitioners, ten Negro students, took seats at the 
lunch counter at the Kress departm ent store in 
Greenville, South Carolina, and requested service (P . 
1, 19, 36). The Kress store in Greenville is open 
to the general public; it has fifteen to twenty depart­
ments and sells over 10,000 items (P . 21). Negroes 
and whites are invited to purchase and are served 
alike, except that Negroes are not served at the lunch 
counter (P . 21).

W hen petitioners requested service at the lunch 
counter, they were told by a Kress employee, “I ’m 
sorry, we don’t serve Negroes” (P . 19, 36). P e ti­
tioners refused to leave, and G. W. W est, the Kress



37

manager, directed tha t the police be called (P . 22).“
Captain Bram lette of the Greenville Police De­

partm ent received the call to proceed to the Kress 
store (P . 7). He was told that there were young 
colored boys and girls seated a t the lunch counter (P . 
10). Captain Bram lette testified tha t he did not 
know the origin of the telephone call (P . 7, 10). 
W hen Captain Bram lette, with several city policemen, 
arrived a t the store, he found two agents of the State 
Law Enforcem ent Division already present at the 
lunch counter (P . 7).29 30 In  the presence of the police 
officers, the lunch counter lights were turned off and 
manager W est requested “ everybody to leave, that 
the lunch counter was closed” (P . 19, 15).31 A t peti­
tioners’ tria l, their counsel was denied permission to 
ascertain whether this request followed arrangem ent 
or agreement with the police (P . 23, 24-25). A fter

29 Doris Wright, one of the petitioners, testified that on an 
earlier occasion she had spoken to the Kress manager about 
the stores’ policy of lunch counter segregation and was assured 
that charges would not be pressed against Negroes who sought 
service (P. 38).

"The South Carolina Law Enforcement Division was oi*- 
ganized to assist local law enforcement officers. Officer Hillyer 
of the Division, present at the time of the incident, testified 
that his immediate superior is Chief J. P. Strom, who is di­
rectly under the authority of the Governor of South Carolina 
(P. 43).

31 Petitioner Wright testified that the request to leave was 
made by the police and not by Mr. West (P. 37). She denied 
that Mr. West asked her or any of the other petitioners to leave 
(P. 41). When asked, “Of course, you are not in position to 
say whether or not Mr. West may have made a request to some 
of the other nine?” she replied, “Yes, I  am, Mr. West, come 
from the back of the store, at the time we were being arrested 
and were told that the lunch counter was closed” (P. 41).



38

about five minutes,32 during which petitioners had 
made no attem pt to leave the lunch counter, Captain 
Bram lette placed them under a rrest for trespassing 
(P . 19).33 Store manager W est did not request tha t 
petitioners be arrested (P . 16, 24).

W hite persons were seated a t the counter when the 
announcement to close was made but none were a r­
rested (P . 19). Mr. W est testified that, when the 
lights went out, the white customers departed (P . 19). 
But a white customer testified that; a t the time of the 
arrests, some white persons' were vstill seated at the 
counter (P . 30-31). A As soon as petitioners were re­
moved by the police, the lunch counter was reopened 
(P . 23).

M anager W est testified that he closed the counter 
because of local custom and because of the Greenville 
city ordinance requiring racial segregation in eating 
facilities (P . 23):

Q. Mr. W est, why did you order your lunch 
counter closed?

A. I t ’s contrary to local custom and i t ’s also 
the ordinance that has been discussed.

Q. Do I  understand then further, tha t you 
are saying tha t the presence of Negroes at your 
lunch counter was contrary to customs?

A. Yes, sir.
Q. And th a t is why you closed your lunch 

counter ?

32 There is some conflict in the record regarding the time 
lapse between the announcement that the counter was closed 
and the arrests (see P. 29, 37, 38, 45).

“ Four other Negroes were also arrested but their cases were 
disposed of by the juvenile authorities (P. 7).



39

A. Yes, sir, th a t’s right.54
The record is conflicting as to whether Captain 

Bramlette thought he was acting im der the Green­
ville segregation ordinance or the State trespass law. 
A t one point, the Captain testified tha t he did not 
have the city ordinance in mind when he went to 
Kress but was thinking of the recently passed State 
trespass statute (P . 11). W hen asked however, why 
he arrested petitioners, he said (P . 15) :

A. U nder the State Law just passed by the 
Governor relative to sit-down lunch counters 
in Greenville, I  enforced this order.

Q. B u t the State Law tha t ju st passed and 
signed by the Governor in May doesn’t  men­
tion anything about Negroes sitting at' lunch 
coimters, does it?

A. I t  mentions sit-ins.
However, a fte r refreshing his recollection, the Cap­

tain conceded tha t the new State law did not mention 
sit-ins (P . 15). H e fu rther testified as follows (P . 
16-17):

Q. Did the m anager of K ress’, did he ask 
you to place these defendants under arrest, 
Captain Bram lette?

A. H e did not.
Q. H e did not?
A. No.
Q. Then why did you place them under 

arrest ?
A. Because we have an ordinance against it/
Q. An ordinance? 34

34 Mr. West testified (P. 21) that the policy of following local 
custom was prescribed by Kress’ headquarters.



40

A. T h at’s right.
Q. B u t you ju st now testified tha t 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 Greenville, is it ?
A. This supersedes the order fo r 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 knowl­
edge of the City ordinance in m ind when I  went 
up there and I  answered I  did not have it p a r­
ticularly in  my mind, I  said I  had the State 
ordinance in my mind.

Q. I  see and so fa r  th is City ordinance which 
requires separation of the races in  restaurants, 
you at no time had it  in mind, as you went about 
answering the call to K ress’ and placing these 
people m ider arrest?

A. In  my opinion the State law was passed 
recently supersedes our City ordinance.35

Petitioners were tried  and convicted in the Re­
corder’s Court of Greenville before the City Recorder, 
sitting without a jury , of violation of the South Caro­
lina trespass law and sentenced to pay a fine of one 
hundred dollars or serve th irty  days in the city ja il 
(P . 47). Petitioners appealed to the Greenville 
County Court, and their appeal was dismissed on

35 Although the trial judge appears to have denied petitioners’ 
motion to make the Greenville segregation ordinance a part of 
the record (P. 46-47), it nevertheless has been incorporated into 
the record (P. 49).



41

March 17, 1961 (P . 50). That court noted that the 
trespass statute was merely a reenactment of the com­
mon law which perm its a property  owner to order 
any person from  his premises whether they be an 
invitee or an uninvited person and that the consti­
tutionality of the statute was unquestioned (P . 50-51). 
The court rejected petitioners’ contention that they 
had a right to be served (P . 52).

On November 10, 1961, the Supreme Court of South 
Carolina affirmed the judgm ent and sentences (P . 55). 
I t  held tha t the operator of a privately owned busi­
ness may accept some customers and reject others on 
purely personal grounds, in the absence of a statute 
to the contrary (P . 58). The court also held that 
there was nothing in the record to substantiate a claim 
that petitioners were actually prosecuted under the 
Greenville segregation ordinance (P . 59). The Su­
preme Court denied rehearing on November 30, 1961 
(P . 62).

A R G U M EN T

INTRODUCTION AND SUMMARY

W e believe i t  im portant a t the outset to define, and 
if  possible limit, the issue in  these cases.

The Fourteenth Amendment provides:
* * * nor shall any State * * * deny to any 
person within its jurisdiction the equal pro­
tection of the laws.

In  the C iv i l  R ig h ts  C a ses , 109 U.S. 3, decided 
shortly a fte r the adoption of the Fourteenth Amend­
ment, th is Court held th a t the Amendment drew a 
fundamental distinction between a S ta te ’s denial of

6 5 8 6 7 6 — 6 a - 4



42

equal protection of the laws and discrimination by 
private individuals, however odious. “ I t  is State 
action of a particu lar character tha t is prohibited. 
Individual invasion of individual rights is not the 
subject-m atter of the Am endment” ( id . ,  p. 11).

F o r a century, this basic postulate has been con­
sistently applied in the courts. This brief does not 
question its validity. On the one hand, a State can­
not constitutionally prohibit association between Ne­
groes and whites, be it in a public restauran t or 
elsewhere. On the other hand, to cite an example, if 
a private landowner should invite all of his neighbors 
to use his swimming pool a t will and then request 
one of the invitees to leave because of his race, creed 
or color, the decision would be private and, however 
unpraiseworthy, not unconstitutional. Furtherm ore, 
we take it th a t there would be no denial of equal pro­
tection if  the State made its police and legal remedies 
available to the owner of the swimming pool against 
any person who came or remained upon his property 
over his objection. For, in a civilized community, 
where legal remedies have been substituted for force, 
private choice necessarily depends upon the support 
of sovereign sanctions. In  such a case, the law would 
be color-blind and it  could not be fairly  said, we 
think, that the State had denied anyone the equal 
protection of its laws.

W ith  respect to these “ sit-in” cases it has been 
argued most broadly th a t the requisite State action 
is to be fomid in  the arrests by the police, the prose­
cutions and the convictions, and tha t since discrimi­



43

nation against Negroes resulted from this State 
action, it violates the constitutional guarantee of 
equal protection of the laws. Cf. Henkin, S h e lle y  v. 
K r a e m e r :  N o te s  f o r  a R e v is e d  O p in io n , 110 U. of Pa. 
L. Rev. 473. Our example of the private residence 
and swimming pool is to be distinguished (the argu­
ment runs) upon the ground that, although tha t case 
too would involve State action and thus raise a fed­
eral constitutional question if  there was an arrest 
and prosecution, nevertheless, the owner’s righ t of 
privacy should outweigh the neighbor’s claim to be free 
from racial discrimination. Against this, the States 
will no doubt argue that the two cases are alike because 
the State does not deny equal protection of the law 
when it indiscriminately offers to support the deci­
sion of the private landowner without regard to the 
landowner’s reasons.

We believe tha t this broad issue need not, and 
should not, be decided in the cases at bar. W e express 
no opinion upon it. W e assume a rg u e n d o  that in the 
absence of other grounds for holding the State respon­
sible the principle invoked by the States is applicable 
to uninvited entrants upon business property, where 
the business is neither subject to a legal duty to serve 
the public (as in the case of inns and common car­
riers) nor owned or managed by one exercising sov­
ereign functions. In  our view, however, the principle 
is not applicable to the present cases.

One significant difference i is that these cases do 
not involve in any substantial sense the landowner’s 
privilege of deciding whom he will bar from  his



44

premises and whom he will invite upon them as social 
guests or business visitors. In  these cases the Ne­
groes were invited into the store and were lawfully 
on the premises. In  the L o m b a r d  case, for example, 
M cCrory’s Five and Ten Cent Store caters to the 
general public, both whites and colored, and even 
a t the lunch counter restricted to white patronage 
there was no sign indicating the restriction. The 
situation was substantially the same in P e te r s o n , 
G o b e r  and S h u tt le s  w o r th . The all-white lunch room 
in A v e n t  was expressly restricted to “ invited guests,” 
which perhaps impliedly excluded the petitioners in 
tha t case, but all other portions of the store were open to 
Negroes and their patronage was solicited without dis­
crimination. The only real restriction, therefore, was 
a policy of refusing to allow white and colored to 
break bread together. Although this restriction can 
be cast in the language of the law of trespass by say­
ing tha t the owner may revoke the consent to enter, 
the terminology cannot conceal the fact th a t the sole 
reason for revocation wTas petitioners’ refusal to ac­
cept a stigma of social inferiority. W hile this cir­
cumstance may not directly bear upon the ques­
tion of the S tates’ responsibility, it plainly shows that 
no substantial claim to constitutional rights in private 
property  is involved in these cases. Cf. M a rsh  v. 
A la b a m a , 326 U.S. 501, 505-507.36

36 Also, Mr. Justice Frankfurter, concurring, said “And 
similarly the technical distinctions on which a finding of ‘tres­
pass’ so often depends are often too tenuous to control [a] de­
cision regarding the scope of the vital liberties guaranteed 
by the Constitution.” 326 U.S. at 511. Cf. S h e lle y  v. K ra em er , 
334 U.S. 1, 22; B a rro w s v. Jackson , 346 U.S. 249, 260.



45

Still more im portant in the cases at bar, the States, 
which instituted the prosecutions, share the responsi­
bility for the invidious discrimination, so that the 
State denial of equal protection does not depend upon 
the arrests and prosecution alone. In  the A v e n t ,  
G o b e r  and P e te r s o n  cases, municipal ordinances re­
quired racial segregation in public eating places. In  
the S h u tt le s w o r th  case, petitioners were convicted of 
aiding and abetting Negroes to sit in lunch counters 
reserved for whites in a city where an ordinance re­
quired segregation in restaurants. In  the L o m b a rd  
case, the S ta te’s laws and policies, effectively and per­
sistently implemented throughout the community, had 
a  sim ilar effect, albeit there was no ordinance in 
terms requiring the exclusion of Negroes from the 
establishment in question.

Accordingly, we submit tha t the only question now 
requiring decision is whether, judged against the 
background of the owner’s willingness to serve Ne­
groes in other parts  of the stores, the S tates’ influence 
upon the owner’s decision to discriminate in serving 
food, through explicit segregation ordinances in four 
cases and through a general policy of promoting ra ­
cial segregation in  the fifth, was sufficient on these 
records to make the S tates’ activities, taken as a whole, 
a denial of equal protection of the laws. I f  so, the 
resulting convictions m ust be reversed.

I t  is one thing for the State to enforce, through the 
laws of trespass, exclusionary practices which rest 
simply upon individual pi’eference, caprice or 
prejudice. I t  is quite another for the State, exercis­



46

ing as it does immeasurable influence over individual 
behavior, to induce racial segregation and then pro­
ceed to implement the acts of exclusion which it has 
brought about. I f  the State, by its laws, actions, and 
policies, causes individual acts of discrimination in 
the conduct of a business open to the public at large, 
the same State, we believe, cannot be heard to sav 
that it is merely enforcing, in even-handed fashion, 
the private and unfettered decisions of the citizen.

To sustain the judgments of conviction in the in­
stant cases in the face of the segregation ordinances 
and official policies, the Court, we believe, would be 
obliged, at a minimum, to find (1) that the acts of 
discrimination were shown not to be a result of the 
State’s laws and policies or of the actions of State 
officials and (2) that the petitioners, when ordered to 
leave the premises in question, were on notice that 
the proprietor was acting to assert his own rights, 
rather than in obedience to the State’s unconstitu­
tional command. In these cases, neither finding can 
be made. For aught that appears, the State, in each 
instance, laid the foundation for the criminal convic­
tion by its own mandates of segregation.

I
THE CONVICTIONS OF THE PETITIONEES IN A v e n t ,  G o b er, 

S h u tt le s w o r th  a n d  P e te r s o n  v io l a te  t h e  f o u r -
TEENTH AMENDMENT BECAUSE IT MUST BE CONCLUDED 
THAT THE FOKCE OF MUNICIPAL LAWS CAUSED THE 
PROPRIETOES TO DISCRIMINATE

While the petitioners in A v e n t ,  G o b er, and P e te r ­
so n  were convicted of trespassing for refusing to 
leave racially segregated lunch counters, these cases



47

cannot be divorced from the fact that the allegedly 
criminal acts occurred in communities which had or­
dinances affirmatively requiring racial segregation at 
establishments where food is served. (The S h u ttle s -  
w o r th  case, involving a charge of aiding and abetting 
the violation of Alabama’s criminal trespass statute, 
turns on the same considerations which govern the 
G oiter  case.) The City of Durham, North Carolina 
(see s u p r a , pp. 6-7),37 the City of Birmingham, Ala­
bama (see su p ra , p. 22), and the City of Greenville, 
South Carolina (see su p r a , pp. 35-36), all had ordi­

37 In the Gober case, the Alabama Supreme Court held that 
the Birmingham ordinance was not properly pleaded and 
therefore was not before the court on appeal. This reasoning 
is plainly insubstantial, since it is'w ell established that the 
Alabama courts can take judicial notice of municipal ordinances. 
See 7 Code of Alabama (1940), § 429(1); Shell Oil v. Edwards, 
263 Ala. 4, 81 So. 2d 535; Smiley v. City of Birmingham, 255 
Ala. 604, 605, 52 So. 2d 710; Monk v. Birmingham, 87 F. Supp. 
538 (N.D. A la.), affirmed, 185 F. 2d 859 (C.A. 5), certiorari 
denied, 341 U.S. 940. Therefore, the ordinance was properly 
before the Alabama courts and may be considered by this 
Court.

We recognize that the existence of the Durham segregation 
ordinance was not called to the attention of the courts below 
and that no argument based on that ordinance was advanced 
in the petition for certiorari in the A vent, case. Nevertheless, 
on occasion, this Court has decided cases on a ground not 
raised below. See, e.g., Terminiello v. Chicago, 337 U.S. 1. 
This practice is particularly appropriate where it furthers this 
Court’s historic refusal to adjudicate far-reaching constitu­
tional questions except where such adjudication is absolutely 
necessary to the decision. See, e.g., the concurring opinion of 
Mr. Justice Brandeis in Ashwander v. Tennessee Valley Au­
thority, 297 U.S. 288, 345-348. Accordingly, should this Coux-t 
conclude that the existence of the segregation ordinances in



48

nances forbidding eating establishments from serving 
whites and Negroes on a nonsegregated basis. We 
submit that the decision of restaurant owners to dis­
criminate under the compulsion of these ordinances 
constitutes State action in violation of the Fourteenth 
Amendment. From that, it necessarily follows that 
the arrest and conviction of persons for refusing to 
obey this decision to discriminate likewise violates 
the command of the Constitution.

Gober and Peterson requires reversal of the convictions in these 
cases, we believe that a similar result should follow in Avent. 
Such a reversal in Avent would avoid consideration of any 
new constitutional issues not already decided in Gober and 
Peterson.

I f  this Court, should conclude that it ought not take judicial 
notice of the Durham ordinance in deciding the case on the merits 
and that the constitutional issues raised, absent the ordinance, 
go substantially beyond anything required to be decided in the 
companion cases, it may wish to consider two other dispositions 
of the Avent cause. One would be to remand the case to the 
Supreme Court of North Carolina for further consideration in 
the light of the decisions in any cases in which the segregation 
ordinances were given decisive significance. That court’s rule 
with respect to judicial notice (see Fulghum v. Town of Selma, 
238 N.C. 100, 76 S.E. 2d 368, 371; State v. Clybum, 247 N.C. 
455, 101 S.E. 2d 295, 300) might properly be affected by 
awareness of possible constitutional implications. And this 
Court has authority to “require such further proceedings to be 
had as may be just under the circumstances.” 28 U.S.C. 2106. 
The other course would be to consider whether the writ was 
providently granted in the Avent case. The well-established 
practice of refusing to decide difficult constitutional issues upon 
an inadequate record or in cases that do not require their decision 
would seem equally applicable to cases in which the constitutional 
issue is raised only because one of the parties failed to take 
advantage of another available defense. Cf. Rice v. Sioux City 
Memonal Park Cemetery. Inc., 349 U.S. 70.



49

A . A  M U N IC IP A L  O R D IN A N C E  W H I C H  R E Q U IR E S R A C IA L  SEG REG ATIO N  

I N  R E S T A U R A N T S  V IO L A T E S  T H E  F O U R T E E N T H  A M E N D M E N T

The municipal ordinances involved in these cases 
are clearly unconstitutional. It is a fundamental 
principle of our constitutional system that the Four­
teenth Amendment prohibits state-sanctioned racial 
segregation. This principle was recently applied to 
restaurants in T u r n e r  v. C ity  o f  M e m p h is , 369 U.S. 
350. There, a statute authorized the State Division 
of Hotel and Restaurant Inspection of the State 
Department of Conservation to issue “such rules and 
regulations * * * as may be necessary pertaining to 
the safety and/or sanitation of hotels and restau­
rants * * *” and made violation of such regulations 
a misdemeanor { id . at 351). The resulting regulation 
provided that “ [rjestaurants catering to both white 
and negro patrons should be arranged so that each 
race is properly segregated” ( ib id .). This Court left 
no doubt that such State-required racial discrimina­
tion was unconstitutional, stating ( id . at 353) :

* * * our decisions have foreclosed any 
possible contention that such a statute or regu­
lation may stand consistently with the Four­
teenth Amendment. B r o w n  v. B o a r d  o f  E d u c a ­
tio n , 347 U.S. 483; M a y o r  &  C i ty  C o u n c il v. 
D a w so n , 350 U.S. 877; H o lm e s  v. C i ty  o f  A t ­
la n ta , 350 U.S. 879; G a y le  v. B r o w d e r , 352 U.S. 
903; N e w  O rle a n s  C i ty  P a r k  I m p r o v e m e n t  
A s s n  v. D e tie g e , 358 U.S. 54. * * *

See also B a i le y  v. P a t te r s o n ,  369 U.S. 31; B u r to n  
v. W ilm in g to n  P a r k in g  A u th o r i ty ,  365 U.S. 715; M o r­
gan  v. V ir g in ia , 328 U.S. 373; B a ld w in  v. M o rg a n , 

287 F. 2d 750 (C.A. 5).



50

B . T H E  S T A T E  IS  R E S P O N S IB L E  FOR T H E  D E C ISIO N  O F T H E  O W N E R S 

O F A  R E S T A U R A N T  TO  D IS C R IM IN A T E  O N  T H E  B A S IS  OF R A C E  W H E N  

T H I S  D E C ISIO N  IS  C O M P E L L E D  B Y  S T A T E  L A W

1. I f  the owner of an establishment requests 
Negroes to leave a lunch counter reserved for whites 
because a State law requires the owner to maintain 
segregation, the prosecution of Negroes for criminal 
trespass for refusing to leave would be an implementa­
tion of the discriminatory State statute and would 
therefore violate the equal protection clause of the 
Fourteenth Amendment. While this Court has ap­
parently never had occasion to pass directly upon the 
question, the lower courts have so held. Thus, in W i l ­
lia m s  v. H o w a r d  J o h n so n ’s R e s ta u r a n t , 268 F. 2d 845, 
847, the Court of Appeals for the Fourth Circuit indi­
cated that “ actions * * * performed in obedience to 
some positive provision of state law” acquire the col­
oration of the State and are governed by the broad 
egalitarian requirements of the Fourteenth Amend­
ment. In F le m m in g  v. S o u th  C a ro lin a  E le c tr ic  an d  
G as C o., 224 F. 2d 752, the Fourth Circuit held that 
the racial segregation of passengers by a bus com­
pany, as required by State law, constituted action 
under color of State law. Similarly, the Court of 
Appeals for the F ifth  Circuit has held that “ [t]he 
very act, of posting and maintaining separate [wait­
ing room] facilities when done bv the [railroad] 
Terminal as commanded by these state orders is action 
by the state.” B a ld w in  v. M o rg a n , 287 F. 2d 750, 
755 (C.A. 5). It declared ( id . at 756):

* * * the State may not use race or color as 
the basis for distinction. It may not do so by 
direct action o r  th r o u g h  th e  m e d iu m  o f  o th e rs



51

w h o  a re  u n d e r  S ta te  c o m p u ls io n  to  do  so. * * * 
(Emphasis added.)

See also the earlier B a ld w in  v. M o rg a n  case, 251 F. 
2d 780, 789-790 (C.A. 5 ); B o m a n  v. B irm in g h a m  
T r a n s it  C o., 280 F. 2d 531 (C.A. 5).38

The rule enunciated in the above decisions, we be­
lieve, is clearly correct. A person who engages in 
racial discrimination under influence of the State’s 
coercive authority is in no sense acting independently. 
Rather, he is acting in compliance with the will of the 
State, and the effect of his action is to carry out the 
State’s policy of discrimination. Consequently, the 
discriminatory action, while performed by a private 
person, is a reflection of the State’s law and policy. 
The State has “insinuated itself” into the private 
decision and “place[d] its authority behind discrimi­
natory treatment based solely on color * * *” in the 
most forceful manner available to it, by the compul­
sion of its penal laws. B u r to n  v. W ilm in g to n  P a r k ­
ing  A u th o r i ty ,  365 U.S. 715, 725, 727.

38 And see W il l ia m s  v. Hot S h o p p e s ,  I n c ., 293 F. 2d 835, 
845, 846 (C.A. D.C.) (Judges Bazelon and Edgerton dissenting) : 

“If a state statute affirmatively required restaurant owners to 
segregate their facilities or exclude Negro patrons, conduct of 
the restaurant owners caused solely by the compulsion of such 
a statute would be state action and would give rise to a claim 
for relief under [42 U.S.C.] § 1983. * * * When otherwise
private persons or institutions are required by law to enforce 
the declared policy of the state against others, their enforce­
ment of that policy is state action no less than would be en­
forcement of that policy by a uniformed officer.”

The majority opinion in Hot Shoppes did not reach this 
question.



52

Indeed, if actions compelled by statute are not con­
sidered State action, decisions of this Court proscrib­
ing State-imposed racial segregation (see s u p r a , p. 
48) may be largely circumvented. For the result is 
that State laws compelling private persons or organ­
izations to discriminate are enforced through parallel 
statutes—like the trespass and criminal mischief stat­
utes involved here. It may be argued that no busi­
nessman is bound to discriminate because, if  he dis­
obeys a State law which commands discrimination, he 
can challenge the constitutionality of the statute under 
which he has been convicted—if need be, in this 
Court. But a criminal law, with the power of the 
State behind it, has, until it is repealed, a powerful 
effect of its own. Ordinary citizens do not know that 
a particular law is not enforced or is unconstitutional, 
and, even if they know, they do not lightly disregard 
it. In any event, regardless of the number of people 
who act under compulsion of a State segregation 
statute which is unconstitutional and therefore 
unenforceable, certainly in the case of those who 
do respond to the compulsion the consequence is an 
implementation of the statutory command. The use 
of the State’s criminal law to arrest and convict Ne­
groes for activities which, except for unconstitutional 
State segregation statutes, would be entirely legal— 
because the restaurateur would not discriminate—is 
surely unconstitutional.

2. We have shown that, if a restaurateur excludes 
Negroes because of a State statute, the State cannot 
convict Negroes for trespass for entering the restau­



53

rant. In none of these cases, we recognize, does the 
record contain an express and specific affirmative 
showing that the coercive force of the segregation 
ordinance was the sole reason for the proprietor’s 
refusal to serve the various petitioners. In P e te r s o n  
the proprietor testified that he refused service because 
of local custom a n d  the segregation ordinance of 
Greenville. In A v e n t  the ordinance is not mentioned 
in the record, but the manager acted in accordance 
with local custom and for reasons of “public safety.” 
The G o b e r  case presents five pairs of convictions. Pe- 
tioners Gober and Davis were excluded because the 
proprietor felt that it would be against the law to 
serve them. The records in the four other trials in 
the G o b e r  case do not record the motivation of the 
various proprietors.39 In S h u tt le s  w o r th , the petition­
ers were convicted of aiding and abetting the viola­
tions of the trespass statute involved in the G o b e r  
case. Under Alabama law, as stated by the Ala­
bama Court of Appeals in this case, the validity

59 In the Gober-Davis trial, petitioners’ attempt to secure fur­
ther evidence concerning the relationship of the ordinance and 
the decision to discriminate was foreclosed by the rulings of the 
trial court that this line of inquiry was incompetent (see the 
Statement, supra, pp. 29-30). Since Gober-Davis was the first of 
a series of five trials before the same state trial judge, fur­
ther efforts in the four later cases to raise the same issue would 
have been futile, as is shown by the court’s ruling in Parker- 
West that a similar line of inquiry was impermissible. Thus, 
while no effort was made in the Hutchinson-King, Sanders- 
Westmoreland, or Walher-Willis trials to raise an issue con­
cerning the segregation ordinance, it is fair to say that all the 
petitioners in Gober were denied an opportunity to show that 
the restaurateurs’ decisions to discriminate were based on the 
Birmingham ordinance.



54

of the convictions depends on whether they were in­
citing persons to commit a crime. There is no evi­
dence in the S h u tt le s  w o r th  record as to the motiva­
tions of the proprietors of the establishments where 
the “sitting-in” occurred.

Upon each of these records the only permissible 
inference is that the local ordinance was such a sub­
stantial factor in the proprietor’s decision that the 
State must share in the responsibility for the discrimi­
nation to the same extent as if  the record showed that 
the decision of the restaurateurs to discriminate was 
based solely upon State law. It is not necessary that 
the discrimination be solely the result of the State’s 
activities. It is enough that the State in any of its 
manifestations has become involved in the discrimina­
tion. See B u r to n  v. W ilm in g to n  P a r k in g  A u th o r i ty ,  
365 U.S. 715, 722. See also pp. 59-63 in f r a .

We base our submission that the only permissible 
inference upon these records is one of substantial 
State responsibility for the proprietor’s discrimina­
tion upon three lines of reasoning.

F ir s t ,  where State law requires racial segregation 
in all eating places and the proprietors uniformly 
comply, the average individual proprietor would never 
reach the question whether he would discriminate if  
left to a judgment uninfluenced by the State; and this 
seems true whether the owner is conscious or uncon­
scious of the reasons for his conduct. The normal 
inference to be drawn from the existence of the ordi­
nance, therefore, is that it caused the discrimination, 
and the State would then have to overcome the infer­



o o

ence by showing that the decisions of the proprietors 
were wholly uninfluenced by the compulsion of an 
existing State law.

S e c o n d , to the extent that the records in these cases 
are unclear as to the motivation of the proprietors, 
the States had the burden of removing the ambiguity 
because the States themselves created it. It is a 
familiar principle of general applicability in our law 
that the party responsible for a wrong must “disen­
tangle the consequences for which it was chargeable” 
or bear the responsibility for the whole. N a tio n a l  
L a b o r  R e la tio n s  B o a r d  v. R e m in g to n  R a n d  I n c ., 94 
F. 2d 862, 872. The question whether the restaura­
teurs were moved to act as they did because of the 
coercive effect of the segregation statutes would not 
exist except for the fact that the States passed and 
retained statutes which compel racial segregation and 
therefore violate the Fourteenth Amendment. I t  is 
clear, as we have seen, that if the proprietor discrimi­
nates as a result of the compulsion of the State, this 
constitutes State action. On the face of it, the deci­
sions of the restaurateurs to discriminate were made 
under compulsion of explicit State statutes. Assum­
ing that a State would be heard to deny the coercive 
effect of its own ordinance, there is no showing in any 
of these cases that the State did not cause the exclu­
sionary act of the proprietor. In  each instance, there­
fore, the State has failed to establish an element essen­
tial to the constitutionality of the conviction.

T h ird , even if the States had shown that the pro­
prietor’s decision to discriminate was not caused 
by the compulsion of the municipal ordinances, these



56

convictions would have to be deemed invalid because 
it was not also made to appear that the petitioners 
knew that the proprietor’s decision was a purely pri­
vate choice. Where discrimination appears on its 
face to be invalid under the Fourteenth Amendment 
because it is compelled by a State law, Negroes should 
not be required to investigate the true motive of the 
restaurateur before entering the premises. In B o y n ­
to n  v. V ir g in ia , 364 U.S. 454, this Court held that the 
Interstate Commerce Act forbids racial segregation 
of a restaurant in a bus terminal. A contention was 
made that there was no proof that the bus company 
owned or controlled the bus terminal or restaurant 
in it. The Court answered that “ where circum­
stances show that the terminal and restaurant oper­
ate as an integral part of the bus carrier’s transporta­
tion service for interstate passengers * * *, an inter­
state passenger need not inquire into documents of 
title or contractual arrangements in order to deter­
mine whether he has a right to be served without 
discrimination.” I d .  at 462—464. Thus, the Court 
held in B o y n to n  that a Negro who is being discrimi­
nated against need not inquire into the precise facts 
when it appears that the discrimination violates the 
Interstate Commerce Act. It follows a  f o r t io r i  that 
where, as in these cases, discrimination against Ne­
groes on its face appears to violate the Fourteenth 
Amendment, the Negro need not ascertain the mo­
tives of the owner at the risk of suffering criminal 
sanctions.



57

If  Negroes were required to ascertain the actual 
motives of the proprietors before seeking service at 
lunch counters or entering lunch rooms, their rights 
under the Fourteenth Amendment would be seriously 
abridged. These motives are frequently difficult, if  
not impossible, to ascertain, at the time the Negro 
desires service in a particular restaurant, especially 
when, as in most of these cases, chain stores are in­
volved.40 The situation is analogous to that in First 
Amendment eases where this Court has held that the 
State cannot pass statutes which, because of vague­
ness, or the burden of proof, or the lack of any re­
quirement of scienter, have the indirect effect of dis­
couraging freedom of speech even though in the 
particular case no protected right may have been 
invaded. E .g ., S m i th  v. C a lifo r n ia , 361 U.S. 147; 
S p e is e r  v. R a n d a ll , 357 U.S. 513; T h o rn h ill v. A la ­
bam a, 310 U.S. 88; W in te r s  v. N e w  Y o r k ,  333 U.S. 
507; W ie m a n  v. U p d e g r a f f , 344 U.S. 183. In these 
cases, too, the effect of the State convictions is to 
discourage the assertion of constitutional rights since 
the petitioners were not given notice of the facts nec­
essary to determine whether their actions were con­
stitutionally protected.

In the present cases it is unnecessary, we think, 
to go farther and consider whether the presumption 
that a State law requiring segregation in eating

40 Negroes, it appears, are invited into these stores, and in 
other respects their trade is solicited on a non-discriminary 
basis.

0584576— 62------5



58

places has played a significant p a rt in the proprie­
to r ’s decision can be overcome by testimony that the 
proprietor would have enforced segregation even if 
there were no current statute or ordinance. I t  can 
be argued with considerable force tha t a private per­
son should not lose a power of choice which is other­
wise his merely because the State or m unicipality 
has acted in  an unconstitutional manner. W e would 
submit, however, if  the question had to be decided, 
that, whatever may be the right of a proprietor to 
assert in private litigation tha t his decision to seg­
regate is the result of private choice ra ther than 
the S ta te ’s command, the State cannot justify  the 
prosecution as consistent with the Fourteenth Amend­
ment upon the ground that its command directing 
segregation had no effective influence upon the pro­
prietor, the police or the public prosecutor. In  a 
criminal prosecution one cannot put the segregation 
statute or ordinance, the p rop rie to r’s decision and the 
prosecution for trespass in separate compartments. 
The order to segregate is too inconsistent with free­
dom of choice and the ways in which its existence may 
influence p roprie to rs’ decisions are too varied and too 
subtle to perm it a State to defend a crim inal prosecu­
tion which enforces racial segregation, upon the 
ground that the segregation resulted from  private 
choice, unless the State has actually left both choices 
entirely open to proprietors.

The segregation ordinances are also related to peti­
tioners’ convictions fo r crim inal trespass by another 
tie. The police norm ally exercise considerable dis­



59

cretion in  their method of handling citizens’ com­
plaints about infractions of m inor criminal laws such 
as the trespass statutes. Prosecutors have and exer­
cise sim ilar latitude in  deciding whether to institute 
criminal proceedings; and the judge has wide discre­
tion in  his disposition of the case. A State which has 
current laws requiring racial segregation in  public 
eating places interjects an official discrim inatory bias 
into all these decisions which is certainly relevant in 
deciding whether a prosecution for criminal trespass 
is so closely related to the discrim inatory ordinances 
as to be p a rt and parcel of the same State denial of 
equal protection of the laws.

I I

ALTHOUGH IN THE LOUISIANA CASE THE STATE ADDRESSED 
NO EXPLICIT STATUTORY COMMAND TO RESTAURATEURS, 
AS SUCH, TO SEGREGATE THEIR CUSTOMERS, IT APPEARS 
THAT THE STATE, BY ITS POLICIES AND BY ITS LAWS IN 
CLOSELY RELATED AREAS, EFFECTIVELY INDUCED THE 
PROPRIETOR’S ACTS OF DISCRIMINATION. SINCE THE 
CASE DOES NOT PERMIT A FINDING THAT THE PRO­
PRIETOR WAS MERELY MAKING A PRIVATE DECISION 
UNINFLUENCED BY OFFICIAL PRESSURE, THE STATE IS 
CONSTITUTIONALLY FORBIDDEN TO IMPOSE CRIMINAL 
SANCTIONS WHICH IMPLEMENT THE DISCRIMINATION.

A. The argum ent ju st concluded advances the prop­
osition that when a State expresses its policy by 
issuing a specific statu tory  command to segregate 
it bears a heavy responsibility for discrim inatory con­
duct which conforms to the S ta te ’s requirem ent and 
cannot be perm itted to compound the injustice by im­
posing criminal sanctions upon the victims of the



60

discrimination. The question presented in L o m b a rd  
v. L o u is ia n a  is whether the same principle governs 
when the S tate’s segregation policy is not embodied in 
an explicit statutory directive in terms requiring the 
proprietor of the particu lar establishment to discrimi­
nate against Negroes, but is, nonetheless, forcibly 
expressed and plainly evident in legislative declara­
tions, laws in closely related areas, statements of 
public officials, and a long standing community-wide 
custom fostered and encouraged by the State.

W e submit the same rule applies. For, in the ab­
sence of any contrary proof, in  the la tte r case like the 
form er it  must be concluded th a t the exclusion of the 
Negro is the result of State policy ra ther than  an 
unfettered individual decision. Notwithstanding 
the unsupported opinion of the Louisiana Supreme 
Court to the contrary (L. 146, 147, 148), an examina­
tion of the State and City policies and laws, together 
with the facts disclosed by the record, leads to the con­
clusion tha t Louisiana induced the acts of discrimina­
tion which support the prosecutions in L o m b a r d ;  
hence we subm it these convictions are as invalid as 
those in the other cases.

To illustrate our point, we need go no fu rther 
than the actual facts. Suppose, if  you will, a State 
which, through its legislature, has proclaimed an 
overriding State policy of segregation; a State which, 
in  pursuance of this policy, has enacted a panoply 
of prohibitions designed to inhibit contact between 
the races; a State which has vigorously and persist­
ently enforced these prohibitions; a State which,



61

through the acts, conduct and statements of its public 
officials, has placed continuing stress upon the proposi­
tion that segregation is the required way of life; a 
State which, by the force of law and policy, brought 
to bear over the 00111*86 of many decades and still con­
tinuing, has established a community-wide custom of 
segregation reaching virtually into every departm ent 
of life. Suppose fu rther that, though no specific en­
actment explicitly requires it, segregation is in  fact 
uniformly practiced in public restaurants, in full 
conformity with the S ta te ’s open and declared policies 
and with its encouragement and support. In  these 
circumstances, does the absence of an express statu­
tory command ju stify  the conclusion that the S ta te ’s 
prosecution of Negroes who seek to be served food 
despite the discrim inatory practices followed by the 
proprietors of such an establishment is neutral and 
“ color-blind’”? Or, a t least in the absence of a strong 
showing to the contrary, is one not driven, rather, to 
the conclusion that the State can not disclaim 
a measure of responsibility for the discrimination 
which it  now seeks to implement through criminal 
sanctions ?

Common sense requires an affirmative answer. Nor 
does this result call fo r the adoption of novel p rin ­
ciples of law.

We begin with one certainty. The absence of an 
explicit statu tory  command does not foreclose the 
search for State action. The Fourteenth Amend­
ment is not so narrow ly confined. Ju s t as the State 
acts in many other ways, so the Amendment looks



62

beyond the formal enactments of the State legislature. 
I t  notices State action in the rulings of judges, E x  
P a r te  V ir g in ia , 100 U.S. 339; S h e lle y  v. K r a e m e r ,  334 
U.S. 1, in the edicts of governors, S te r l in g  v. C o n sta n ­
tin , 287 U.S. 378; C o o p e r  v. A a ro n , 358 U.S. 1; F a u -  
bus  v. A a ro n , 361 U.S. 197, affirming 173 F . Supp. 
944, and in the decisions of all m anner of subordinate 
local officials. V ir g in ia  v. R iv e s ,  100 U.S. 313, 321; 
Y ic k  W o  v. H o p k in s , 118 U.S. 356; H o m e  T e l. A  T el. 
C o. v. L o s  A n g e le s , 227 U.S. 278; N ie m o tk o  v. M a r y ­
la n d , 340 U.S. 268; P e n n s y lv a n ia  v. B o a r d  o f  T r u s ts ,  
353 U.S. 230; C o o p e r  v. A a r o n , s u p ra . And, as the 
cases ju st cited make plain, discrim ination by State 
officers is no less prohibited because it is accomplished 
without, or despite, the command of statu tory  law. 
See M o n ro e  v. P a p e ,  365 U.S. 167,171-172.

B ut the Amendment does not reach “ official” acts 
only. The State is not insulated merely because the 
result is accomplished through persons interposed, 
however, “private” they may claim to be. The State 
can no more dictate discrimination in private insti­
tutions than  it can segregate its own facilities. T ru a x  
v. R a ic h , 239 U.S. 33; B u c h a n a n  v. W a r le y ,  245 U.S. 
60; G a y le  v. B r o w d e r , 352 U.S. 903, affirming 142 F. 
Supp. 707; S ta te  A th le t ic  C o m m iss io n  v. D o r s e y , 359 
U.S. 533, affirming 168 F. Supp. 149; B a i le y  v. P a t ­
te r s o n , 369 U.S. 31, 33; T u r n e r  v. C ity  o f  M e m p h is , 
369 U.S. 350. The constitutional right to equal trea t­
ment “can neither be nullified openly and directly by 
state legislators or state executive or judicial officers, 
nor nullified indirectly * * *” C o o p e r  v. A a r o n , su ­
p r a , 358 U.S. at 17. Nor is it only when the State



63

explicitly dictates discrimination by others tha t their 
conduct “ may fa irly  be said to be tha t of the S tates.” 
S h e lly  v. K r a m e r ,  su p r a , 334 U.S. at 13. See N ix o n  
v. C o n d o n , 286 U.S. 73; S m ith  v. A llw r ig h t ,  321 U.S. 
649; T e r r y  v. A d a m s , 345 U.S. 461. State “ partici­
pation”, “ whether attem pted ‘ingeniously or ingen­
uously, ’ ” or “insinuation” in discrim inatory activity 
is ju st as real when its involvment is “nonobvious.” 
C o o p er  v. A a ro n , s u p r a , 358 U.S. at 4, 17; B u r to n  v. 
W ilm in g to n  P a r k in g  A u th o r i ty ,  365 U.S. 715, 725. 
Cf. P u b lic  U t i l i t i e s  C o m m ’n  v. P o l ia k , 343 U.S. 451.41 
And, again, it does not m atter through what branch 
of government, or whether formally or informally, the 
State encourages segregation by others. C o o p e r  v. 
A a ro n , s u p r a , 358 U.S. at 17; T e r r y  v. A d a m s , s u p r a ,  
345 U.S. a t 475 (opinion of Mr. Justice F ran k ­
fu rter) ; B a r r o w s  v. J a c k so n , 346 U.S. 249, 254. As 
stated by this Court many years ago, “the prohibi­
tions of the Fourteenth Amendment * * * have refer­
ence to actions of the political body denominated a 
State, by whatever instrum ents or in whatever modes

41 See, also, Muw v. Louisville Park Theatrical Association, 
347 U.S. 971, reversing and remanding 202 F. 2d 275; Kerr 
v. Enoch Pratt Free Library of Baltimore City, 149 F. 2d 212 
(C.A. 4); Department of Conservation & Development v. Tate, 
231 F. 2d 615 (C.A. 4) ; City of St. Petersburg v. Alsup, 238 F. 2d 
830 (C.A. 5); Dernngton v. Plummer, 240 F. 2d 922 (C.A. 
5); City of Greensboro v. Simkins, 246 F. 2d 425 (C.A. 4); 
Baldwin v. Morgan, 287 F. 2d 750 (C.A. 5); Lawrence v. 
Hancock, 76 F. Supp. 1004 (S.DAV.Va.); Jones v. Marva The­
atres, Inc., 180 F. Supp. 49 (D.Md.); Coke v. City of Atlanta, 
Ga., 184 F. Supp. 579 (NVD.Ga.). And see Valle v. Stengel, 
176 F. 2d 697 (C.A. 3).



64

that action may he taken.”  E x  P a r te  V ir g in ia , su ­

p r a , 100 U.S. a t 346-347.
The cases ju s t cited, although they do not resolve 

the present issue, show the breadth of the concept of 
State action, which, as Mr. Justice Clark pointed out 
in  B u r to n  v. W ilm in g to n  P a r k in g  A u th o r i ty ,  365 
U.S. 715, 721-722, has from the day of the C iv i l  
R ig h ts  cases until C o o p e r  v. A a ro n  embraced “ State 
action of every kind * * * which denies * * * the 
equal protection of the laws” (109 U.S. a t 11) and 
also “ state participation through any arrangement, 
management, funds or p roperty” (358 U.S. a t 4). 
So long as the State has meaningfully “ place [d] its 
authority  behind discrim inatoiy treatm ent based 
solely on color [it] is indubitably a denial by a State 
of the equal protection of the laws, in violation of the 
Fourteenth Amendment.” B u r to n  v. W ilm in g to n  
P a r k in g  A u th o r i ty ,  s u p r a , 365 U.S. a t 727 (dissenting 
opinion of Mr. Justice F ran k fu rte r).

In  short, the State is not insulated from  respon­
sibility under the Fourteenth Amendment merely 
because a private person commits the final act of in­
vidious discrimination. The question, as Mr. Ju s ­
tice Clark has pointed out fo r the Court, is whether 
the State in any of its m anifestations has, to some 
significant extent, become involved in the discrim ina­
tion. B u r to n  v. W ilm in g to n  P a r k in g  A u th o r i ty ,  
365 U.S. 715, 722.

B. In  light of these principles, we consider whether 
the act of discrim ination which lies a t the base of 
the prosecution of the petitioners in L o m b a r d  can be 
said to be “ p riva te” , ra ther than State-induced.



65

1. The segregationist policy of Louisiana is re­
flected in its laws. The scheme is not haphazard. 
Almost every activity is segregated. Discrimination 
against the Negro literally begins with his birth  and 
continues to his death, and beyond.

A t the outset, the Negro is given a birth  certificate 
which so identifies him. La. R.S. 40:244. He starts 
life on a segregated street. La. 33:5066-5068. See 
also, La. R.S. 33:4771. As a child he is segregated in 
parks, playgrounds, swimming pools, and other rec­
reational activities. La. R.S. 33:4558.1. I f  taken to 
the circus, he must go in by a separate entrance. La.
R.S. 4:5. U ntil very recently, he was relegated to all- 
Negro public schools. Form er La. R.S. 17:331-334, 
17:341-344 (repealed in I960).42 Even now, he may 
attend a segregated school in the upper grades. See 
O rlea n s  P a r is h  S c h o o l B o a r d  v. B u sh , August 6, 1962 
(C.A. 5). Later on, he will be compelled to stay apart 
a t all entertainm ents and athletic contests. La. R.S. 
4 :452. Mixed social functions are absolutely banned. 
La. R.S. 4:451. A t work, he will eat separately and 
use separate sanitary  facilities. La. R.S. 23:971-975. 
His voting registration is separately tabulated. La. 
R.S. 18:195. And, should he become a candidate for 
elective office, he will be identified by race on the bal­
lot. La. R.S. 18:1174.1. He may not m arry  outside

42 Despite the contrary rulings of the federal courts the stat­
ute books of Louisiana are not yet wiped clean of provisions 
designed to forestall effective desegregation of the public 
schools. See, e.g ., La. R.S. 17:107, 17:394.1, 17:395.1-4, 17:2801, 
et seq., 17:2901, e t seq.



66

of his race. La. Civil Code, Art. 94; La. R.S. 9:201. 
See, also, La. R.S. 14:79. I f  he is divorced, the court 
proceedings will reflect his color. La. R.S. 13.917, 
13:1219.

Institu tions for the blind and deaf are segregated. 
La. R.S. 17:10-12. So are homes fo r the aged and in­
firm. La. R.S. 46 :181. And prisons also separate the 
races. La. R.S. 15:752, 15:854. See, also, La. R.S. 
15:1011, 15:1031.

Finally, his death will be attested by a certificate 
identifying him by race. La. R.S. 40 :246. And he 
will be buried, presumably in a segregated cemetery,43 * 45 
perhaps under a funeral policy which has been sepa­
rately administered. La. R.S. 22:337, 22:345.

Significantly, in this pervasive scheme of segrega­
tion, there seems to be special emphasis on separate 
consumption of food and drink. Employers are re­
quired to segregate their employees during meals, even 
to the point of supplying different utensils for each 
race. La. R.S. 23:972. Likewise, a t all places of pub­
lic entertainm ent, separate w ater fountains m ust be 
provided. La. R.S. 4:452. And, in New Orleans at 
least, strict segregation is required in all establish­
ments which serve beverages with more than one-half 
of 1 percent alcohol. New Orleans City Code, §§ 5- 
2(1), 5-61.1. All appearances suggest tha t the leg­

43 While there appears to be no specific statute segregating 
cemeteries, the practice seems to be required, at least in all pub­
licly owned cemeteries, by the recent constitutional provision 
compelling segregation in all State, parochial or municipal in­
stitutions. See La. Const. 1921, Art. X, § 5.1, as added by Act
630 of 1960, adopted November 8, 1960.



67

islative policy of Louisiana includes segregation of 
public restaurants and lunch counters.

The statute books give no false impression. While 
compulsory segregation is fa r  from new in Louisiana, 
neither are the present laws mere vestiges of a for­
gotten past. Many of the statutes are recent. None 
are ignored as obsolete. On the contrary, what re­
mained of a more generous era (see H a ll  v. D e C u ir ,  
95 U.S. 485) was quickly erased from  the books. 
One relevant example is the repeal in 1954, shortly 
after this C ourt’s in itial decision in B r o w n  v. B o a r d  
o f  E d u c a tio n , 347 U.S. 483, of the local “ inkeeper” 
statute and a companion provision specifically ban­
ning “ distinction or discrim ination on account of 
race or color” in licensed “ places of public resort.” 
See form er La. R.S. 4:3-4, repealed by Act 194 of 
1954.

W here the S ta te ’s segregation policy has given 
away, it  has beeii almost invariably under the com­
pulsion of federal court orders, and then only a fte r 
most protracted litigation. See W ils o n  v. B o a r d  o f  
S u p e r v is o r s , 92 F. Supp. 986 (E.D. La.), affirmed, 
340 U.S. 909 (S tate  law school) ; T u re a u d  v. B o a r d  
o f S u p e r v is o r s , 116 F. Supp. 248 (E.D. La.), re­
versed, 207 F. 2d 807, judgm ent of court of appeals 
stayed, 346 U.S. 881, vacated and remanded, 347 U.S. 
971, affirmed, 225 F . 2d 434, reversed and remanded 
on rehearing, 226 F. 2d 714, affirmed on fu rther re­
hearing en la n e ,  228 F . 2d 895, certiorari denied, 351 
U.S. 924 (S tate  undergraduate and law school) ; M o r ­
r iso n  v. D a v is , 252 F. 2d 102 (C.A. 5), certiorari



68

denied, 356 U.S. 968, rehearing denied, 357 U.S. 944 
(Buses and streetcars); N e w  O rlea n s  C i ty  P a r k  I m ­
p r o v e m e n t A s s ’n  v. D e tie g e , 252 F. 2d 122 (C.A. 5), 
affirmed, 358 U.S. 54 (Municipal p a rk ) ; L u d le y  v. 
B o a r d  o f  S u p e r v is o r s  o f  L .S .U ., 150 F. Supp. 900 
(E.D. La.), affirmed, 252 F. 2d 372, certiorari denied, 
358 U.S. 819 (S tate colleges); D o r s e y  v. S ta te  A th ­
le tic  C o m m iss io n , 168 F. Supp. 149 (E.D. La.), 
affirmed, 359 U.S. 533 (In terracial sports contests); 
B o a r d  o f  S u p e r v is o r s  o f  L o u is ia n a  S ta te  U . v. 
F le m in g , 265 F. 2d 736 (C.A. 5 ) ; (S tate  uni­
versity) ; L o u is ia n a  S ta te  B o a r d  o f  E d u c a tio n  v. 
A lle n , 287 F. 2d 32 (C.A. 5), certiorari denied, 368 
U.S. 830 (S tate  trade school); S t .  H e le n a  P a r is h  
S c h o o l B o a r d  v . H a ll , 287 F. 2d 376 (C.A. 5), certio­
ra ri denied, 368 U.S. 830, fu rther relief granted, 197 
F . Supp. 649, affirmed, 368 U.S. 515 (Public schools); 
E a s t  B a to n  R o u g e  P a r is h  S ch o o l B o a r d  v. D a v is , 287 
F. 2d 380 (C.A. 5), certiorari denied, 368 U.S. 831 
(Public schools). This Court is, of course, fam iliar 
with the course of the litigation involving the public 
schools of New Orleans. See B u s h  v. O rlea n s  P a r is h  
S c h o o l B o a r d ,  138 F. Supp. 337 (E.D. L a.), leave to 
tile mandamus denied, 351 U.S. 948, affirmed, 242 F. 
2d 156, certiorari denied, 354 U.S. 921, denial of mo­
tion to vacate affirmed, 252 F. 2d 253, certiorari de­
nied, 356 U.S. 969, fu rther motion to vacate denied, 
163 F. Supp. 701, affirmed, 268 F . 2d 78; id ., 187 F. 
Supp. 42, stay denied, 364 U.S. 803, affirmed, 365 U.S. 
569; id . , 188 F . Supp. 916, stay denied, 364 U.S. 500, 
affirmed, 365 U.S. 569; id . ,  190 F . Supp. 861, affirmed,



69

366 U.S. 212; id ., 191 F. Supp. 871, affirmed, 367 U.S. 
908; id ., 194 F. Supp. 182, affirmed, 367 U.S. 907, 368 
U.S. 11; id ., 204 F. Supp., 568, modified, 205 F. Supp. 
893, modified and affirmed (C.A. 5), August 6, 1962.

As the State Legislature recently proclaimed, not 
only has Louisiana “ always maintained a policy of 
segregation of the races,”  but “ it is the intention of 
the citizens of this sovereign state that such a policy 
be continued.” La. Act 630 of 1960, Preamble.

2. The statute books tell only a p a rt of the story. 
Louisiana has a long tradition of racial discrimina­
tion, as is attested by the cases which have reached 
this Court. See, in addition to the cases already 
cited and those cited, in f r a , p. 70, U n ite d '■ S ta te s  v. 
C ru ik sh a n k , 92 U.S. 542; P le s s y  v. F e rg u so n , 163 
U.S. 537; H a rm o n  v. T y le r , 273 U.S. 668 ;44 P ie r r e  v. 
L o u is ia n a , 306 U.S. 354; L o u is ia n a  v. N .A .A .C .P .,  
366 U.S. 293. Even in areas where there is no spe­
cific statute, the custom of segregation persists. And, 
of course, customs often have a force akin to law. 
C iv il  R ig h ts  C a ses , 109 U.S. 3, 16, 21; T e r r y  v. A d a m s , 44

44 Louisiana’s reluctance to abandon its tradition of segrega­
tion, even where this Court has ruled, is exemplified by the 
retention of the provision banning mixed communities in the 
1950 codification of the laws still in effect, long after this Court’s 
declaration that the statute was unconstitutional in H arm on  v. 
T yler. The Reporter for the revision notes that, since “[t]he 
state supreme court in its opinion [upholding the statute] had 
carefully distinguished or attempted to distinguish, the 
Buchanan case [B uchanan  v. W a rle y , 245 U.S. 60, relied on by 
this Court],” and since this Court’s ruling was “only a memo­
randum decision,” the provision should be retained as still in 
force. See “Reporter’s Notes” to La. R.S. 33:5066.



70

s u p r a , 345 U.S. a t 475 (opinion of Mr. Justice F rank ­
fu rte r). Indeed, the Louisiana crim inal courts are 
expressly enjoined to take judicial notice of extra- 
legal racial customs, presumably because they have 
legal relevance. See La. R.S. 15:422(6).

Specifically, a strict practice of segregation pre­
vails in the service of food. As Mr. Justice Douglas 
noted in G a m e r  v. L o u is ia n a , 368 U.S. 157, 181 (con­
curring opinion) :

Though there may have been no state law or 
municipal ordinance th a t in  te r m s  required 
segregation of the races in restaurants, it  is 
plain that the proprietors in the instant cases 
were segregating blacks from  whites pursuant 
to Louisiana’s custom. Segregation is basic to 
the structure of Louisiana as a community; 
the custom th a t m aintains it  is a t least as pow­
erfu l as any law. * * *

The custom had not changed when the present “ sit-in” 
occurred. Both the Mayor and Police Superintend­
ent of New Orleans frankly  stated tha t they knew of 
no desegregated restaurant in the City.45

B ut segregation in restaurants is no mere p r iv a te  
custom. I f  it were, it would doubtless have long since 
ceased to be the uniform  practice. See C o o p e r  v.

45 We understand that since the granting of the petition in 
L o m b a rd  several department stores in New Orleans have deseg­
regated their lunch counters. Of course, the partial desegre­
gation of eating establishments at the present time does not 
disclose the situation when the discrimination at the base of these 
prosecutions occurred, two years earlier.



71

A a ro n , s u p ra , 358 U.S. at 20-21, 25, 26 (concurring 
opinion of Mr. Justice F ran k fu rte r) . I t  is actively 
supported by the outspoken policies of the State— 
policies so hardened that State employees are en­
joined from  advocating integration under penalty of 
losing their jobs. See La. R.S. 17:443, 17:462, 17:493, 
17:523.

The State itself, apart from the enactment of com­
pulsory legislation, sets the example. I t  segregates 
all of its own facilities. La. Const. 1921, Art. X , as 
amended 1960, § 5.1. I t  continues to discriminate in 
the electoral process. See U n ite d  S ta te s  v. M c E lv e e n ,  
180 F. Supp. 10 (E.D. La.), affirmed su b  n om . U n ite d  
S ta te s  v. T h o m a s, 362 U.S. 58; U n ite d  S ta te s  v. A s s o ­
c ia tio n  o f  C it iz e n s  C o u n c ils  o f  L o u is ia n a , 196 F. Supp. 
908 (W .D. La.) ; U n ite d  S ta te s  v. M a n n in g , 205 F. 
Supp. 172 (W .D. La.). See, also, H a n n a h  v. L a rc h e , 
363 U.S. 420. Despite decisions in this Court, be­
ginning with S tr a u d e r  v. W e s t  V ir g in ia , 100 U.S. 
303, discrim ination in grand ju ry  selection persisted 
in Xew Orleans until a t least 1954. See E u b a n k s  
v. L o u is ia n a , 356 U.S. 584, 586. See, also, P o r e t  v. 
S ig le r , 361 U.S. 375. And efforts by Negroes to chal­
lenge segregation customs have been prom ptly met 
with prosecutions for breach of the peace. G a rn e r  
v. L o u is ia n a , 368 U.S. 157 (lunch coimter customarily 
reserved for whites) ; T a y lo r  v. L ou isian a ,, 370 U.S. 
154 (term inal waiting room customarily reserved for 
whites).

3. As indicated above, the inference tha t the State 
govermnent causes and sustains the practice of segre­



72

gation in Louisiana restaurants seems unavoidable. 
In  this instance, there were additional pressures by 
local officials.

Although the form er New Orleans Mayor and the 
Superintendent of Police are men of moderation, 
whose utterances were restrained, their statements, 
quoted in full a t pp. 12-15, s u p r a , could not but 
harden the opposition to desegregation of lunch coun­
ters in  the City. The tim ing of these official declara­
tions was crucial.

I t  appears that, one week prior to the “ sit-ins" 
here involved, the Superintendent of Police issued a 
public statement { s u p r a , pp. 12-13), reprin ted  in the 
city’s leading newspaper, which, in the context 
of Louisiana’s laws and customs, must have been 
understood to condemn the efforts of the city’s 
Negro citizens to achieve equality of treatm ent at 
lunch counter facilities not only by demonstrations but 
by any means. Terming the first “ sit-ins” to have 
occurred in New Orleans “ regrettable,” the Su­
perintendent claimed they were instigated by a 
“ very small g roup” which did “ not reflect the senti­
ments of the great m ajority  of responsible citizens, 
both white and Negro, who make up our population.” 
The Superintendent appealed to “ m ature responsible 
citizens of both races” to “ exercise * * * sound, in­
dividual judgment, goodwill and a sense of personal 
and community responsibility.” P aren ts of the dem­
onstrators were asked “ to urge upon these young- 
people that such actions are not in the community 
interest. ’ ’ P erhaps most significant, the Superintend­



73

ent saw “no reason for any change whatever in the 
normal, good race-relations tha t have traditionally 
existed in New Orleans.”  In  the existing environ­
ment this exhortation can hardly  have been under­
stood to be confined to illegal demonstrations; it ob­
viously supported the notion that proprietors should 
continue to refuse service to Negroes, for the normal 
traditional pa ttern  of race relations with respect to 
food service, as the Mayor and Superintendent testi­
fied, was tha t proprietors would not serve Negroes on 
an integrated basis.

Four days prio r to the “ sit-ins,” the Superin­
tendent’s statement was buttressed by a statement 
issued by the Mayor { s u p r a , pp. 13-15) also published 
in the press. The Mayor declared th a t he had “ di­
rected the superintendent of police that no additional 
sit-in demonstrations or so-called peaceful picketing 
outside retail stores by sit-in dem onstrators or their 
sympathizers will be perm itted .” This command was 
not restricted to demonstrations involving refusals to 
leave a fte r being requested to do so. I t  acknowledged 
no room fo r free private decisions by the owners of 
lunch coimters, no opportunity fo r Negroes to seek 
service in the hope that the owners would abandon seg­
regation. I t  was also a direct prohibition upon law­
ful peaceful picketing (Cf. T h o rn h ill v. A la b a m a , 310 
U.S. 88) designed to encourage proprietors to serve 
Negroes on an integrated basis. The Mayor stated 
that he would enforce his directions by invoking two 
recent enactments of the State legislature prohibiting 
acts which could “ foreseeably disturb or alarm  the

6 5 8 6 7 6 — 6 2 -----------6



74

public.” Finally, he demanded that “ such demonstra­
tions cease” in the “ community in terest.”

The foregoing statements read in isolation might 
fairly  be construed to deal only w ith “ sit-in” demon­
strations. However, their combined effect in the 
Louisiana context, we submit, was not only to dis­
courage “ sit-ins” but to condemn the goal of equality 
of service and any activity intended to persuade the 
proprietors of public eating-places to cease segrega­
tion. Their impact upon those who might otherwise 
have acceded to the demands fo r equality of treatm ent 
seems plain.

4. W e retu rn  to the question whether the total body 
of State influences—the m anifold current segregation 
laws and contemporaneous declarations of policy, the 
customs stemming therefrom  and the declarations of 
the mayor and chief of police—should be found to 
have played the same decisive role in the p roprieto rs’ 
discrimination against petitioners Lombard e t  a l  as 
the municipal ordinances were seen to play in the 
companion cases previously discussed. See pp. 50-59 
s u p r a . The situations differ in that the Louisiana 
laws did not literally require the segregation. They 
are the same in tha t on this record one can only con­
clude tha t Louisiana’s official actions m ust have been 
effective inducing causes of the p rop rie to r’s choice. 
U nder these circumstances, too, normal hum an experi­
ence teaches tha t the individual proprietor would 
never face the problem of form ing a judgm ent unin­
fluenced by State policy. The State which enacts 
unconstitutionally discrim inatory laws in areas so



75

closely related to segregation in public eating-places 
and which declares generally that racial segregation 
is the policy of the State has the same burden of 
disentangling its influence upon the proprietors7 dis­
crimination from  other factors for which the State 
is not responsible. And there is the same burden to 
show petitioners’ awareness tha t the segregation was 
the result of the proprie to r’s individual choice unin­
fluenced by State action, if indeed that were the 
truth.

In  the present case, we are not left merely to in fer­
ence and presumption. F a r  from  overcoming the con­
clusion tha t the exclusionary practice stemmed from 
the State, the testimony of the store m anager con­
firmed it. Although his testimony on this subject was 
curtailed at the tria l (see su p r a , pp. 17-19), the man­
ager pointedly declared { s u p r a , pp. 16-17) that he re­
fused petitioners service because of “ local tradition, 
law and custom. ’ ’

Louisiana’s official segregation policies are also re­
lated to petitioners’ convictions for crim inal trespass 
by their inevitable effect upon the police, the prosecu­
tors and the S tate courts. Louisiana’s policy, like the 
segregation-in-public-eating-places ordinances dis­
cussed at pages 49-59 s u p r a , interjected an official 
discrim inatory bias into the decisions of the police in 
the handling of complaints, into the decision of the 
prosecutor as to whether to institute crim inal proceed­
ings and, quite possibly, into the sentence. This im­
pact of the segregation policies in the criminal proceed­
ing confirms our conclusion th a t the convictions violate



76

the Fourteenth Amendment because on these records 
they are inseparably paid of the official State policy of 
denying Negroes equal protection of the laws.

In  the present case, it is unnecessary to consider 
just how large a body of State laws would justify  find­
ing, in the absence of contrary proof, tha t the State is 
so involved in the p roprie to r’s decision tha t i t  is barred 
from  in itiating  a prosecution for crim inal trespass. 
Each particu lar case m ust be individually decided by 
making a judgm ent upon the question of degree, and 
the smaller the body of State law the closer the case 
will fall to the dividing line. In  the L o m b a r d  case the 
Louisiana statutes are current and the general State 
policy of segregation was declared by the legislature 
as recently as 1960. The problem tha t would arise if 
the statutes had been repealed and the private discrim­
ination were only the result of community customs 
promoted by earlier S tate laws does not require con­
sideration here. The currency and pervasiveness of 
the body of Louisiana’s segregation laws and the plain­
ness w ith which tha t policy is declared show tha t this 
case is well on the unconstitutional side of the dividing 
line.

5. W e have argued above tha t the record utterly  
fails to overcome the strong inference tha t the proprie­
to r’s acts of discrim ination were brought about by the 
State. Although the Louisiana Supreme Court has 
stated in its opinion (L. 147) that the decision to ex­
clude Negroes was independently made by the store 
owner, we find no supporting evidence for this con­
clusion. The m anager did testify  that, so fa r  as the



77

national chain was concerned, the determination was 
left to him. And, obviously, i t  was he who actually 
established the segregated eating accommodations and 
maintained them separate. B ut the courts below gloss 
over the m anager’s explanation why he acted as he did. 
So fa r  as he was perm itted to explain, he said he was 
following prevailing “ local tradition, law and custom,” 
as he in terpreted it. F u rth e r cross-examination on this 
point was cut off. Clearly, this statement does not 
support the conclusion tha t he made a purely private 
decision.

We think this evidence unambiguous against the 
background already sketched. For, as we have said, 
having intruded so actively and so pervasively in  the 
area of race relations, the State had to overcome the 
presumption th a t it  participated in  the act of discrim­
ination at the base of these prosecutions. And, cer­
tainly, Louisiana has not met tha t burden, a t the tria l 
or elsewhere. B ut the result here would not be differ­
ent if  the Court should disagree and hold tha t the 
shoe was on the other foot. For, if  petitioners bore 
the burden of proving the S tate’s involvement, they 
were a t least entitled to an opportunity to make tha t 
showing. And, if  they have failed to satisfy this 
Court, it  is only because their efforts in this direction 
were summarily cut short.

As the court below confirms, petitioners “ sought to 
introduce evidence to establish that the action of the 
manager of M cCrory’s was provoked or encouraged 
by the state, its policy, or officers * * *” (L. 146). B ut 
the tria l court refused tha t evidence. To cite one 
example, during the questioning of the store manager,



78

petitioners’ counsel asked: “ W ill you tell the court 
why you were not allowed to serve them 1 (L. 109).
A fter an objection by the prosecutor was sustained on 
the ground that the question was not m aterial, defense 
counsel stated the purpose of his inquiry (L. 110) :

I  think it  is m aterial, because if  Mr. Graves 
[the restauran t m anager] felt there was some 
State policy tha t prevented him from  serv­
ing these defendants this is a clear state 
action. * * *

Nor is this an isolated instance. Consistently, during 
the prelim inary hearing on the motion to quash and 
during the tria l itself, the tria l judge prevented in­
quiry as to why the restauran t discriminated (L. 23, 
25, 26, 107, 108, 127-128). The court having imposed 
upon them the burden of proving the S tate’s involve­
ment, this curtailm ent of petitioners’ attem pt to show 
that the store’s decision to discriminate was a ttribu t­
able to the State was clearly improper. I t  follows that 
the L o m b a r d  convictions would have to be reversed 
even if  the burden of showing whether the S tate’s 
active support of segregation actually influenced the 
proprietor was upon the petitioners ra ther than the 
State.

I l l

THE DECISION IN THESE CASES SHOULD NOT BE DETER­
MINED BY CONSIDERATIONS PERTINENT SOLELY TO 
RIGHTS AS BETWEEN THE PROPRIETORS AND PETITIONERS

W e have considered thus fa r  the issues as between 
the petitioners and the States, and have shown that 
upon these records it  must be concluded that the



79

States were sufficiently responsible fo r the discrimina­
tion to make their total action in relation to the peti­
tio n e rs’ sentences—the inducement to discriminate 
plus the prosecution, conviction and sentences—a 
denial of equal protection of the law. In  other words, 
a State may not, consistently with the Fourteenth 
Amendment, both induce a proprietor to engage in 
racial discrimination and prosecute the victims for 
criminal trespass or a sim ilar offense.

The question may be raised, what are the m utual 
rights and duties of the petitioners and proprietors 
in the context of an ordinance requiring, or State 
action strongly encouraging, racial segregation. I t  
may be argued, in  attack upon our position, tha t re­
versal upon the grounds we urge would require hold­
ing the proprietors to a duty to serve Negroes and deny­
ing thetfbprivate righ t to exclude them fo r whatever 
personal reasons they chose, a result inconsistent with 
the preservation of the private freedom of choice, sus­
tained in the C iv i l  R ig h ts  C a ses  and our ensuing con­
stitutional history. The Negroes’ remedy, the argu­
ment would conclude, is by direct attack upon the 
unconstitutional ordinances and official segregation 
policies ra ther than  the proprietors’ private freedom 
to discriminate.

W e believe tha t this line of inquiry need not be 
fully explored because a decision in the present cases 
upon the ground pu t forw ard in this brief need not 
determine the private rights as between proprietors of 
public eating places and Negroes seeking service.



80

In  the first place, there is no need to decide here 
whether even a criminal prosecution would violate the 
Fourteenth Amendment if  it were made to appear as 
a fact that the p roprie to r’s discrim inatory practice 
was not a result of State action but of a personal wish 
to discriminate which would have been indulged in  the 
absence of the State laws. On the records before the 
Court, this is not the fact. Obviously, the decision, 
then, cannot affect rights in private litigation in 
which the fact is made to appear.

Second, the presumption that the State law has in­
fluenced the private decision—a presum ption which 
operates against the State in a crim inal prosecution— 
might not operate in the same fashion against the 
private owner. The State, having adopted unconsti­
tutional segregation lawTs, has a duty to disentangle 
the consequences; it  does not lie in the S ta te ’s mouth, 
a t least in  the absence of clear proof, to say th a t the 
very discrim inatory practices that it ordered or other­
wise sought to induce were actually unrelated to the 
S ta te’s directions or encouragement. This reasoning, 
however, would not run  against the individual pro­
prietor and consequently, as between him and the 
Negro, the outcome of any litigation might be dif­
ferent.

Third, we submit that there is no reason, in the 
circumstances of these cases, why the ability of the 
State to prosecute m ust be exactly the same, both sub­
stantively and procedurally, as the righ t of private 
owners to refuse service and exclude the Negro who



81

insists upon service. I t  is one thing to say that a 
State which enacts a law requiring segregation in 
public eating places is guilty of denying Negroes 
equal protection of the laws not only when it enforces 
that statute against them, but also when it prosecutes 
them for criminal trespass because of the decision of 
those who are apparently obeying the statutory com­
mand. T hat conclusion follows because the segrega­
tion laws cannot be so rigidly separated from  the 
criminal prosecution; the prosecution, at least until 
the contrary is clearly demonstrated, is not only State 
action but a consequence, and therefore p a rt and 
parcel, of the concurrent denial of equal protection 
of the laws. I t  is quite a different thing, however, 
to deprive the owner of any property  rights which 
he may independently wish to exercise, on the ground 
that the State has violated the Fourteenth Amend­
ment. Because of this difference the disposition of 
these criminal cases need not affect the private rights 
of proprietors and those seeking restaurant service, 
and those rights would rem ain to be determined when­
ever the issue may arise.

U nder the facts of these cases, there is no serious 
incongruity in suggesting tha t the proprietors have 
not necessarily lost their righ t of action or defense 
in private suits merely because the State is constitu­
tionally barred from  implementing their discrimina­
tion through the imposition of criminal sanctions. 
The problem, if any, is confined w ithin a narrow  
compass, and it  is curable. W e espouse no broad



82

rule of constitutional law which would, in all cases, 
deny the storeowner who wished to discriminate 
among customers the aid of the State criminal law. 
T hat might be the result if  it  were held that a  State 
violates the Fourteenth Amendment merely by arrest­
ing and prosecuting those who trespass upon segre­
gated premises. B ut we present no such question. 
Our contention is that, in cases like those a t bar, the 
arrests and prosecutions violate the Constitution be­
cause the State itself has been a party  to the under­
lying discrimination. To regain its neutrality  and 
remove the only barrier now urged against its action, 
it suffices if  the State term inates its objectionable 
inducement of discrim inatory practices.

In  summary, we submit that when the State, by its 
current laws, actions, and policies, brings about indi­
vidual acts of discrimination in the conduct of a busi­
ness open to the public at large, it  cannot impose 
crim inal sanctions upon those who have been ex­
cluded, on the theory tha t it is merely implementing 
a private property  right. Americans, both black and 
white, may stand upon a more fundam ental righ t: 
The right that government shall deny to no m an the 
equal protection of the laws.



83

CONCLUSION'

For the foregoing reasons, the judgments of con­
viction in these cases should be reversed.

Respectfully submitted.
A rchibald Cox,

S o lic i to r  G en era l.
B urke M arshall,
A s s is ta n t  A t to r n e y  G en era l. 
R alph S. S pritzer,
L ouis F. Claiborne, 

A s s is ta n ts  to  th e  S o l ic i to r  G en era l.

October 1962.

H arold H . Greene,
H oward A. Glickstein, 
R ichard K. B erg,
A lan G. Maker,

A tto r n e y s .

U.S. GOVERNMENT PRINTING OFFICElIM *



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a-' j '

i





I n  the

Supreme (£mtrl nf %.JlmtrJn Stairs
October T erm, 19G1 

No. 694

J ames Gobrr, J ames A lbert D avis, R oy H utchinson, 
R obert J . K ing, R obert P arker, W illiam W est, R obert 
D. S anders, R oosevelt W estmoreland, J essie W alker, 
W illie J . W illis,

Petitioners,
— v .—

City of B irmingham,
Respondent.

on petition for writ of certiorari to the

ALABAMA COURT OF APPEALS.

REPLY TO BRIEF IIS OPPOSITION 
TO CERTIORARI

'.J
L eroy D. Clark 
Michael Meltsner 
J ames M. N abrit, III 
Louis H . P ollak

J ack Greenberg 
Constance B aker Motley 

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores

1527 Fifth Avenue, North 
Birmingham, Alabama

P eter A. H all 
Orzell B illingsley, J r.
Oscar W . A dams, J r.
J . R ichmond P earson

of Counsel Attorneys for Petitioners





I n  the

Cmtrt nf thr lTuitr£i States
October T erm, 19G1

No. 694

J ames Gobek, J ames A lbert D avis, R oy H utchinson , 
R obert J. K ing, R obert P arker, W illiam W est, R obert 
D. S anders, R oosevelt W estmoreland, J essie W alker, 
W illie J. W illis, •

Petitioners,
—v.—

City of B irmingham,
Respondent.

on petition for writ of certiorari to the

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 of 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. Breckenridge, rather than 
Watts E. Davis and William L. Walker. Messrs. Walker 
and Davis are Assistant City Attorneys of Birmingham; 
Mr. Brecken ridge, up.n whom service was made, is their 
superior, the City Attorney, as is evidenced by copy of 
the letter accompanying Respondent’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 
upon 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 udicial Notice op the Ordinances of Certain Cities.—All 
courts in or of the 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.”





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, S, 9, 11, G2, G3, G4). Finally, petitioners 
attempted to interrogate concerning the ordinance (Br. 
of Petitioners, G, 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, S) and the Assignments of Error, 
Assignment 3 alleges error in refusing to grant the Motion 
to Exclude (Westmoreland, 32). Finally, the trial court 
ruled that, by stipulation, the motions in all the cases 
would be identical (Hutchinson, 33).

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





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, S, 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.)





5

HI.
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 tins 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. Yiek Wo v. Ilopkins, 11S 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 Brews v. S t a t e  (Jurisdictional Statement filed 29 U. S. L. Week 
3286, No. 810, I960 term; renumbered No. 71, 1961 term); W i l ­
l i a m s  v. N o r t h  C a r o l i n a  (Petition for Cert, filed 29 U. S. L. Week 
3319, No. 915, 1960 term; renumbered No. 82, 1961 term); A v e n t  
v. N o r t h  C a r o l i n a  (petition for cert, filed 29 U. S. L. Week 3336, 
No. 943, 1960 term; renumbered No. 85, 1961 term ); F o x  v. N o r t h  
C a r o l i n a  (petition for cert, filed Id. No. 944, 1960 term; renum­
bered No. 86; 1961 term). R a n d o l p h  v. C o m m o n w e a l t h  o f  V i r g i n i a  
(petition for cert, filed 30 U. S. L. Week 3069, No. 248, 1961 term ); 
H e n r y  v. C o m m o n w e a l t h  o f  V i r g i n i a  (petition for cert, filed 30 
U. S. L. Week 3123,, No. 346, 1961 term ); L o m b a r d  v. L o u i s i a n a  
(petition for cert, filed 30 U. S. L. Week 3234, No. 638, 1961 term ); 
G o b e r  v. C i t y  o f  B i r m i n g h a m  (petition for cert, filed 30 U. S. L. 
Week 3250, No. 694, 1961 term ); T h o m p s o n  v. C o m m o n w e a l t h  o f  
V i r g i n i a  (petition for cert, filed 30 U. S. L. Week 3234, No. 655, 
1961 term ); P e t e r s o n  v. C i t y  o f  G r e e n v i l l e  (petition for cert, filed 
30 U. S. L. Week 3274, No. 750, 1961 term). Cf. also S h u t t l c s -  
w o r t h  a n d  B i l l u p s  v. C i t y  o f  B i r m i n g h a m  (petition for cert, filed 
30 U. S. L. Week 3258, No. 721, 1961 term).





6

pics. 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, 91S, 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, 1901. 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 herefore, for the foregoing- reasons, it is respectfully 
submitted that the petition for writ of certiorari should be 
granted.

Respectfully submitted,

J ack Greenberg
Constance B aker Motley 

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores

1527 Fifth Avenue, North 
Birmingham, Alabama

P eter A. H all
Orzell B illingsley, J r.
Oscar W. A dams, J r.
J. R ichmond P earson

Attorneys for Petitioners

L eroy D. Clark 
Michael M eltsner 
J ames M. N abrit, III 
Louis H. P ollak

of Counsel





8

(See opposite)





la

MCCKKNRIOOI  
| CITT AT TO RN iY

February 23# 19^2

A SS IS TAN T C IT Y  A T T O R N E Y S

C A R L  MCDEE 
W AT TS A . DAVIS 
» «  . A . THOMPSON 
JAMES a  .ADAMS. Ill 
WM. C . WALKER 
THOMAS J . HAYDEN

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.
^Yot̂  v ery ^ jjp l^ ,

Watts E. Davis 
Assistant City Attorney

WED:ng
Enel.
AIR MAIL





I n  t h e

Supreme (Enurt of the llntteh States
October T erm, 1962

No. 66

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

Petitioners,
— v .—

City of B irmingham.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

BRIEF FOR PETITIONERS

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. A dams, J r.
J. R ichmond P earson

Birmingham, Alabama
Attorneys for Petitioners

Leroy Clark 
W illiam T. Coleman, J r.
Michael Meltsner 
William R. Ming, J r.
James M. N abrit, III 
Louis H. P ollak 

Of Counsel





INDEX

Opinions Below.................................................................... 1

Jurisdiction...........................................................................  1

Constitutional and Statutory Provisions Involved....... 2

Questions Presented.........................................................  3

Statement of the Case........................................................ 4

Summary of Argum ent.................................................... 16

Argument

I. Alabama’s Judgments in These Cases Are In­
consistent With the Constitutional Mandate of
Equal Protection....................................................  18
A. Petitioners’ Convictions Were Decreed by

Birmingham’s Restaurant Segregation Or­
dinance .............................................................  18

B. Petitioners’ Convictions Were Decreed by
a Massive State Segregation Policy ........... 23

C. State Enforcement of Private Racial Dis­
crimination Is Likewise Proscribed by the 
Fourteenth Amendment.................................  25

D. No Essential Property Bight of the De­
partment Store Is Infringed H e re ..............  29

E. The State May Not Arrest and Convict Peti­
tioners for Having Violated the State’s Seg­
regation Policy in Premises in Which the 
State Is Deeply Involved Through Its Li­
censing and Regulatory Powers ..................  37

PAGE



11

F. These Convictions Must Be Reversed Since, 
in Addition to the Foregoing, Alabama Has 
Failed to Protect Petitioners’ Rights to 
Equal Access to Public Accommodations .... 39

II. The Decision Below Conflicts With Decisions 
of This Court Securing the Right of Freedom 
of Expression Under the Fourteenth Amend­
ment to the Constitution of the United States .... 44
A. The Enforcement of the State and City Seg­

regation Policy and the Interference of the 
Police Violated Petitioners’ Right to Free­
dom of Expression ........................................  44

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 Author­
ity to Issue Such a Request at the Time 
Given ...............................................................  48

Co n clusio n ........................................................................  51

T able of Cases

Abrams v. United States, 250 U. S. 616 ...................... 30
Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ....... 32

Bailey v. Patterson, 369 U. S. 31 .................................  18
Baker v. Carr, 369 U. S. 186 ........................................ 37
Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .... 23
Barrows v. Jackson, 346 U. S. 249 ............................. 18, 32
Betts v. Easley, 161 Kans. 459, 169 P. 2d 831 ..............  39

PAGE



1U

Bob-Lo Excursion Co. v. Michigan, 333 U. S. 2 8 ..........  30
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ......................................................................  23
Boynton v. Virginia, 364 U. S. 454 ...........................  18
Breard v. Alexandria, 341 U. S. 622 ......................... 28, 45
Browder v. Gayle, 142 F. Supp. 707, aff’d 352 U. S.

903 .................................................................................. 24
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 .................................  49
Burton v. Wilmington Parking Authority, 365 U. S.

715 ..................................................   16,18,39,40,43

PAGE

In Ee Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680
(Surr. Ct. 1931) ..........................................................  32

Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943) 40 
Central Iron Co. v. Wright, 20 Ala. App. 82, 101 So.

815 ................    50
Chaplinsky v. New Hampshire, 315 U. S. 568 ..............  49
Civil Rights Cases, 109 U. S. 3 ..........................16, 39, 40, 42
Connally v. General Construction Co., 269 U. S. 385 49
Cooper v. Aaron, 358 U. S. 1 ........................................ 18, 47
Cruger v. Phelps, 21 Misc. 252, 47 N. Y. S. 61 (Sup.

Ct. 1897) ............    31

D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63, 43 A. 2d
169 (Ch. 1945) ...............................................................  32

Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2
A. 2d 285 (Ch. 1938) .................................................... 31

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949)
aff’d 336 U. S. 933 ............... ........................................  18

District of Columbia v. John R. Thompson Co., 346 
U. S. 100 ....................................................................... 30



IV

Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 
1934) ..............................................................................  31

Fay v. New York, 332 U. S. 261 ..................................... 27
In Ee Forte’s Will, 149 Misc. 329, 267 N. Y. S. 603

(Suit. Ct. 1933) ...........................................................  32
Freeman v. Eetail Clerks Union, Washington Superior 

Court, 45 Lab. Eel. Eef. Man. 2334 (1959) ..............  47

Garner v. Louisiana, 368 U. S. 157 .............. 27, 44, 45, 50
Gilbert v. Minnesota, 254 U. S. 325 .............................  29
Green v. State, 58 Ala. 190 ........................................... 24

In Ee Haight’s Will, 51 App. Div. 310, 64 N. Y. S.
1029 (2d Dept. 1900) ....................................................  31

Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422 (1890) .... 31
Henneford v. Silas Mason Co., 300 U. S. 577 ..................  31
Holmes v. Atlanta, 350 U. S. 879 .................................  18
Holmes v. Connecticut Trust & Safe Deposit Co., 92

Conn. 507, 103 Atl. 640 (1918) .................................... 32
Hudson County Water Co. v. McCarter, 209 U. S. 345 36

Klor’s Inc. v. Broadway-Hale Stores, 359 U. S. 207
(1959) ............................................................................  33

Kovacs v. Cooper, 336 U. S. 77 .....................................  28

Lambert v. California, 355 U. S. 255 .............................  49
Lane v. Cotton, 1 Ld. Eaym. 646, 1 Salk. 18, 12 Mod.

472 ..................................................................................  34
Lanzetta v. New Jersey, 306 U. S. 451 ........................  49
Levitt & Sons, Inc. v. Division Against Discrimination,

31 N. J. 514, 158 A. 2d 177 (1960) .............................  33
Lorain Journal Co. v. United States, 342 U. S. 143

(1951)   33
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) 40

PAGE



V

PAGE

Maddox v. Maddox, Admr., 52 Ya. 804 (1954) ..............  31
McCord v. State, 79 Ala. 269 ........................................  50
Mapp v. Ohio, 367 U. S. 643 ........................................  29
Marsh v. Alabama, 326 U. S. 501 ......................16, 30, 36, 46
Martin v. Struthers, 319 TJ. S. 141 ............................. 28, 45
Massachusetts Comm'n Against Discrimination v.

Colangelo, 30 U. S. L. W. 2608 (Mass. 1962) ..............  33
Miller v. Schoene, 276 U. S. 272 (1928) .........................  35
Monk v. City of Birmingham, 87 F. Supp. 538 (N. D.

Ala. 1949), aff’d 185 F. 2d 859, cert. den. 341 U. S.
940 .................................................................................. 23

Monroe v. Pape, 365 U. S. 167 ..................................... 26
Morrissette v. U. S., 342 U. S. 246 ............................. 49, 50

NAACP v. Alabama, 357 IT. S. 449 .................................  45
N. Y. State Comm’n Against Discrimination v. Pelham 

Hall Apts., Inc., 10 Misc. 2d 334, 170 N. Y. S. 2d 750
(Sup. Ct. 1958)...............................................................  33

Nixon v. Condon, 286 U. S. 73........................................  39
N. L. R. B. v. American Pearl Button Co., 149 F. 2d

258 (8th Cir. 1945) ........................................................ 46
N. L. R. B. v. Babcock & Wilcox Co., 351 U. S. 105

(1955) ............................................................................  35
N. L. R. B. v. Fansteel Metal Corp., 306 U. S. 240....... 46

People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 279
(1948) ............................................................................  47

Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 32
Public Utilities Commission v. Poliak, 343 U. S. 451—.29, 39

Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) 35

Railway Mail Ass’n v. Corsi, 326 IT. S. 88........................ 30
In Re Ranney’s Estate, 161 Misc. 626, 292 N. Y. S. 476 

(Surr. Ct. 1936) 32



VI

Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 
(1945) .....................................................................30,35,46

PAGE

Saia v. New York, 334 U. S. 558....................................... 49
St. Louis Poster Advertising Co. v. St. Louis, 249 U. S.

269 (1919) ..................................................................... 35
San Diego Bldg. Trades Council v. Garmon, 349 U. S.

236 .................................................................................. 46
Schenck v. United States, 249 U. S. 47............................ 47
Schmidinger v. Chicago, 226 U. S. 578.......................... 35
Screws v. United States, 325 U. S. 91...........................  26
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), cert.

denied 332 U. S. 851...................................................... 47
Sender v. Oregon State Board of Dental Examiners,

294 U. S. 608 (1935)...................................................... 35
Shelley v. Kraemer, 334 U. S. 1 ....16,18, 25, 28, 30, 32, 36, 37 
Shuttlesworth v. Board of Education, 162 F. Supp. 372

(N. D. Ala. 58 aff’d 358 U. S. 101)...........................  24
Shuttleworth v. Gaylord, 202 F. Supp. 59 (N. D. Ala.

1961) ..............................................................................  23
State Athletic Comm’n v. Dorsey, 359 U. S. 533......... 18
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357, 2361 (1959)..................  47
Steel v. Louisville and Nashville R. R. Co. 323 U. S.

192 ..................................................................................  39
Stromberg v. California, 283 U. S. 359......................  44

Taylor v. Louisiana, 370 U. S. 154.................................  26
Terminiello v. Chicago, 337 U. S. 1.................................  47
Terry v. Adams, 345 U. S. 461......................................... 40
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).... 35
Thompson v. City of Louisville, 362 U. S. 199................  50
Thornhill v. Alabama, 310 U. S. 88.................................44, 46



Truax v. Corrigan, 257 U. S. 312..................................... 40
Turner v. Memphis, 369 U. S. 350............................... 16,18

United States v. Addyston Pipe & Steel Co., 85 Fed.
271 (6th Cir. 1898) aff’d 175 U. S. 211 (1899)......... 33

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961)—. 35
United States v. Colgate, 250 U. S. 300 (1919)..............  33
United States v. Hall, 26 Fed. Cas. 79...........................  40
U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960)..........  33
United Steelworkers v. N. L. E. B. 342 F. 2d 593 (D. C.

Cir. 1956), reversed on other grounds, 357 U. S. 257.. 46

Watchtower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948)........... 28

Western Turf Assn. v. Greenberg, 204 U. S. 359..........  30
West Virginia State Board of Education v. Barnette,

319 U. S. 624................................................................... 44
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d 661

(1945) ............................................................................  31
Winters v. New York, 333 U. S. 507...............................  49
Wolf v. Colorado, 338 U. S. 25 ..................................... 29

F ederal S tatutes

Civil Eights Act of 1866, 14 Stat. 27...............................  28
Civil Eights Act of 1875..................................................  41
Civil Eights Act of 1875, 18 Stat. 335.............................  28
Clayton Act. 15 U. S. C. §12 et seq..................................  33
Enforcement Act of May 31st, 1870, 16 Stat. 140..........  41
Enforcement Act of April 20, 1871, 17 Stat. 13..............  41
Miller-Tydings Act Amendment of §1 of the Sherman 

Act, 15 U. S. C. §1 ........................................................ 32

V ll

PAGE



vm

Robinson-Patman Act, 15 U. S. C. §13 et seq.................  33

Sherman Anti-Trust Act, 15 U. S. C. §1 et seq................  33

28 U. S. C. 1257(3)............................................  2
42 U. S. C. 1981..................................................  27
42 U. S. C. 1982..................................................  27
42 U. S. C. 1983..................................................  27

S tate S tatutes

Alabama Constitution, Art. 14, §256 .............................  24

Cal. Civil Code, §51 ....................................................... 33
Cal. Civ. Code, sections 51-52 (Supp. 1960) ..................  34
Cal. Health & Safety Code §35740 .................................  33
Code of Alabama, Recompiled 1958, Title 7, §429(1) ..6,23 
Code of Alabama, Recompiled 1958, Title 10, §§1 to

263 ..................................................................................  37
Code of Alabama, Recompiled 1958, Title 14-360 ......... 24
Code of Alabama, Recompiled 1958, Title 44-10........... 24
Code of Alabama, Recompiled 1958, Title 45-4 ........... 24
Code of Alabama, Recompiled 1958, Title 45-52 ........... 24
Code of Alabama, Recompiled 1958, Title 45-248 ....... 24
Code of Alabama, Recompiled 1958, Title 48-186 ....... 24
Code of Alabama, Recompiled 1958, Title 48-196-198 .. 24 
Code of Alabama, Recompiled 1958, Title 48-301 (31a)

to (31c) ......................................................................... 24
Code of Alabama, Recompiled 1958, Title 51-244 ....... 24
Code of Alabama, Recompiled 1958, Title 52-613(1) .... 24
Code of Alabama, Recompiled 1958, Title 121-3........... 24
Colo. Rev. Stat. Ann. sections 25—1—1 (1953) ..........  34
Colo. Rev. Stat. Ann. §§69-7-1 to 69-7-7 (Supp. 1960) .. 33
Conn. Gen. Stat. Rev. §53-35 (Supp. 1960)......................  33
Conn. Gen. Stat. Rev. §53-35 (Supp. 1961) .................... 34

PAGE



D. C. Code Ann. sections 47-2901 et seq. (Supp. 1960) .. 34

Indiana Ann. Stat. sections 10—901-02 (Supp. 1962) .... 34 
Iowa Code Ann. sections 735.1 (1950) .......................... 34

Kansas Gen. Stat. Ann. section 21-2424 (1949) ........... 34
Mass. G. L. c. 151B, §§1, 4, 6 (Supp. 1961) ..................  33
Mass. G. L. c. 151B, §§1-10 (Supp. 1961), as amended

by Stat., 1961, cc. 128, 570 ............................................  33
Mass. Gen. L. c. 272, §§92A, 98 (1956) .......................... 34
Mich. Stat. Ann. §28-343 (Supp. 1959) ...................  34
Minn. Stat. Ann. section 327.09 (1947) .................... 34
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,

c. 428 to become effective 12/31/62...........................  33
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 34

Neb. Rev. Stat. sections 20—101—102 (1943) ............  34
N. D. Cent. Code, section 12-22-30 (Supp. 1961) ..........  34
N. H. Rev. Stat. Ann. §354:1 (Supp. 1961) ..............  33, 34
N. J. Stat. Ann. §§10 :l-2 to 10 :l-7 (1960) ......................  34
N. J. Stat. Ann. §18:25-4 (Supp. 1961) .................  33
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) . 34
N. Y. Civil Rights Law §40 (1948); Executive Law,

§§292(9), 296(2) (Supp. 1962) ................................  34
N. Y. Executive Law, §290 (Supp. 1962) ...................... 33
Ohio Rev. Code §4112.02(G) (Supp. 1961) ..................  34
Ore. Rev. Stat. sections 30.670-.680, as amended by L.

1961 c. 247 .....................................................................  34
Ore. Rev. Stat. §659.033 (1959) .....................................  33

Pa. Stat. Ann. Tit. 18, section 4654, as amended by 
Act No. 19 of the 1961 Session of Pa. Gen. Assembly 34 

Pa. Stat. Ann. Titl. 43, §§951-63, as amended by Acts 
1961, No. 19 ...................................................................  33

R. I. Gen. Laws Ann. sections 11—24—1-6 (1956) ... . 34

ix

PAGE



X

PAGE

Vermont Stat. Ann. Tit. 13, sections 1451-52 (1958) .... 34

Wash. Rev. Code $49.60.030 (1957) .................... 33
Wash. Rev. Code, section 49.60.040 (1957) .................  33
Wash. Rev. Code, section 49.60.040 (1962) .................  34
Wash. Rev. Code, section 49.60.215 (1962) .................  34
Wis. Stat. Ann. section 942.04 (1958), as amended

(Supp. 1962) .................................................................  34
Wyo. Stat. $$6-83.1, 6-83.2 (Supp. 1961) ......................  34

City Ordinances

City Code of Birmingham, Alabama, Section 369
(1944) .......................................................................2,18,23

City Code of Birmingham, Alabama, Section 1436
(1944) .........................................................................2,4,25

City Code of Birmingham, Alabama, Section 5288 
(1930) ............................................................................  3

General City Code Birmingham (1944), Ch. 14 .......... 37
General City Code Birmingham (1944) $$348 and 

376(a) ............................................................................  37

Other A uthorities

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cornell L. Q.
375 ..................................................... .......... ..................  43

Adler, Business Jurisprudence, 28 Harv. L. Rev. 135
(1914)..............................................................................  34

A. L. I., Restatement of Property, $424 (1944) ..........  31
A. L. I., Restatement of the Law of Property, Div. 4, 

Social Restrictions Imposed Upon The Creation Of
Property Interests (1944), p. 2121............................  32

A. L. I., Restatement of Torts, $867 (1939) ..................  29



XI

PAGE

Beale, The Law of Innkeepers and Hotels (1906) .... 34 
4 Blaekstone’s Commentaries, Ck. 13, Sec. 5(6) Wen­

dell’s Ed. 1850 ...........................................................  29
Blodgett, Comparative Economic Systems, 24 (1944) 31
Browder, Illegal Conditions and Limitations: Miscel­

laneous Provisions, 1 Okla. L. Rev. 237 (1948) ..........  32
Cong. Globe, 41st Cong. 2d Sess., p. 3611 (1870) ....... 40
Cong. Globe, 42d Congress, 1st Sess., p. 459 ..........  42
Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).... 41
Cong. Globe, 42d Cong., 2d Sess., 382-383 (1872)......... 29
Appendix to the Cong. Globe, 42d Congress, 1st Sess.,

p. 85 ................................................................................  42
Cong. Rec., p. 412, 43d Cong., 1st Sess. (1874)..............  41

E nglish S tatute

Statute of Labourers, 25 Ed. I ll, Stat. I, (1350) ........... 34

Other A uthorities

Gray, Restraints on the Alienation of Property, 2d ed.
1895, §259 .......................................................................  32

Gray, The Rule Against Perpetuities, §201, 4th ed.,
1942 ........    32

Hale, Force and the State: A Comparison of “Politi­
cal” and “Economic” Compulsion, 35 Colum. L. Rev.
149 (1935) .......................................................................  43

Ivonvitz & Leskes, A Century of Civil Rights, 150

Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 
(1938) ............................................................................. 32



Mund, “The Right to Buy—And Its Denial to Small 
Business,” Senate Document #32, 85th Cong. 1st 
Sess., Select Committee on Small Business (1957) .... 34

Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev.
1 (1959) ..........................................................................  43

Powell, Real Property, HH759-827......................................  32
6 Powell, Real Property ff851, Restatement of Property 31 
6 Powell, Real Property fl858 at 64.................................  32
Rankin, The Parke, Davis, Case, 1961 Antitrust Law 

Symposium, New York State Bar Association Sec­

tion on Antitrust Law 63 (1961).................................. 33
Sayre, Public Welfare Offenses, 33 Columbia L. Rev. 55

(1933) ............................................................................  49
Southern School News, August 1960, Vol. 9, No. 2, p. 1.... 24

X II

PAGE



In the

j$>upnmtP dmtrt of tlj? States
October T erm, 1962 

No. 66

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

Petitioners,
—v.—

City of B irmingham.

O N  W R I T  O F  C E R T IO R A R I  T O  T H E  C O U R T  O F  A P P E A L S  O F  A L A B A M A

BRIEF FOR PETITIONERS

Opinions Below

The opinions of the Court of Appeals of Alabama are 
reported at 133 So. 2d 697 (Gober, R. 58); 133 So. 2d 703 
(Davis, R. 88); 133 So. 2d 703 (Hutchinson, R. 124); 133 
So. 2d 704 (King, R. 144); 133 So. 2d 705 (Parker, R. 118); 
133 So. 2d 705 (Sanders, R. 220); 133 So. 2d 706 (Walker,
R. 262); 133 So. 2d 707 (West, R. 194); 133 So. 2d 707 
(Westmoreland, R. 236); 133 So. 2d 708 (Willis, R. 278).

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Gober 64, Davis 88, Hutchinson 
124, King 144, Parker 178, West 194, Sanders 220, West-



2

moreland 236, Walker 262, Willis 278). Petitions to the 
Supreme Court of Alabama for Writs of Certiorari were 
denied on September 14,1961 (Gober 69, Davis 92, Hutchin­
son 128, King 144, Parker 182, West 194, Sanders 224, 
Westmoreland 236, Walker 266, Willis 278).

Applications to the Supreme Court of Alabama for re­
hearing were overruled on November 2, 1961 (Gober 71, 
Davis 92, Hutchinson 128, King 144, Parker 182, West 194, 
Sanders 224, Westmoreland 236, Walker 266, Willis 278).

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

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 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 separated by a solid 
partition extending from the floor upward to a distance



3

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

Questions Presented

Petitioners have been arrested, convicted, and sentenced 
to prison for refusal to obey the request to leave a lunch 
counter in a department store open to the public, including 
Negroes. This request was predicated on a city ordinance 
requiring racial segregation in eating facilities buttressed 
by a massive state policy of segregation. The premises 
are extensively licensed and regulated by the City and 
State. And, Alabama has failed to accord Negroes the 
right of equal access to public accommodations.

I.

A. May these state court convictions stand consistently 
with the Fourteenth Amendment in view of the fact that 
the segregation which gave rise to them was based upon 
a city ordinance requiring racial segregation in eating 
facilities buttressed by a massive state policy of racial 
segregation?

B. May these convictions stand consistent with the equal 
protection clause of the Fourteenth Amendment as en­
forcement of the private determination of department 
stores to exclude Negroes from certain eating facilities?

C. In addition to the foregoing considerations, is not the 
property right which Alabama sought to protect here— 
the right to discriminate racially in a single portion of a 
store open to the general public—so inconsequential to the 
main core of the store’s proprietary interests that the state 
may not, compatibly with the Fourteenth Amendment, en­
force that right by its criminal laws?



4

D. Is not the degree of supervision and control which the 
City and the State exercise over the department store lunch 
counters here, given the circumstances set forth above, so 
extensive a form of state involvement that the State has 
an obligation to afford equal protection?

E. In view of the fact that Alabama denies protection to 
Negroes against racial discrimination in public accom­
modations, do not the circumstances set forth above estab­
lish a denial of equal protection of the laws?

II.
A. Has Alabama denied petitioners freedom of speech 

secured by the Fourteenth Amendment by using its crim­
inal trespass laws as a device to stop petitioners from per­
suading the department stores in Birmingham to abandon 
their policies of discrimination at the lunch counters?

B. Is not freedom of speech impaired by failure to con­
strue the statute under which conviction was obtained to 
require notice that the request to leave the premises was 
given by one who had established authority to issue such 
request at the time given?

Statement of the Case

Petitioners, ten Negro students, were all tried seriatim 
in groups of two and simultaneously convicted on October 
10, 1960 following sit-in demonstrations at department 
store lunch counters serving white customers only in Bir­
mingham, Alabama (R. 9, 81, 100, 136, 152, 187, 202, 229, 
244, 271). Each petitioner was charged with having vio­
lated §1436, General City Code of Birmingham, 1944, which 
provides as follows:

“Any person who enters into the dAvelling house, or goes 
or remains on the premises of another, after being



5

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” (R. 2, 73, 93,129,145,183,195, 225, 237, 267).

Originally tried and convicted in Birmingham’s Re­
corder’s Court, petitioners’ appeals and trials de novo in 
the Circuit Court, Tenth Judicial Circuit of Alabama, ended 
in new convictions and fines of $100 each and 30 days in jail. 
Simultaneous appeals were taken to the Court of Appeals 
of Alabama where the convictions were affirmed (R. 57, 88, 
124, 144, 178, 194, 220, 236, 262, 278) followed by denials of 
petitions for writs of certiorari in the Supreme Court of 
Alabama (R. 65, 92, 128, 144, 182, 194, 224, 236, 266, 278). 
A single petition for writ of certiorari was filed in this 
Court and granted on June 25,1962 (R. 279). (Stipulations 
as to printing of record R. 279.)

Petitioners claimed that their convictions deprived them 
of due process and equal protection guaranteed by the 
Fourteenth Amendment to the Federal Constitution. These 
constitutional claims were first raised by motions to strike 
the complaint (R. 3, 74, 94, 130, 146,184,196, 226, 238, 268); 
demurrers (R. 4, 75, 95, 131, 147, 185, 197, 227, 239, 269); 
motions to exclude the testimony (R. 6, 77, 97, 133, 148, 187, 
199, 229, 241, 271); motions for new trial (R. 12, 83, 103, 
139, 154, 189, 205, 231, 247, 273); assignment of errors (R. 
56, 87, 123, 142, 177, 192, 219, 234, 276) and in the petitions 
for writs of certiorari in the Supreme Court of Alabama 
(R, 66, 89,125,144,179,194, 221, 236, 263, 278).

On appeal to the Court of Appeals a decision was ren­
dered in the first case, Gober, on the basis of which all other 
convictions were affirmed (R. 58-64, 88, 124, 144, 178, 194, 
220, 236, 262, 278). That court upheld the overruling of 
Gober’s motion to strike the complaint on the ground that it



6

was not a proper method of testing the sufficiency of the 
complaint (R. 59-60) and the overruling of grounds 1, 2, 3 
and 4 of the demurrer on the ground that these were too 
general in nature and did not point out any specific defect 
in the complaint (R. 60).

All of the constitutional grounds urged in the demurrer 
were rejected on the ground that “no constitutional applica­
tion of the ordinance . . . appears from any of the pleadings. 
Such unconstitutional application would be a matter of evi­
dence. These grounds, setting up a speaking demurrer, 
necessitated an overruling of the demurrer in this aspect” 
(R. 61). The trial court’s denials of the motion to exclude 
the evidence and for a new trial were also affirmed (R. 61). 
Gober’s free speech and equal protection claims were held 
“entirely inapplicable” (R. 61).

Although petitioners’ counsel on the trial brought out 
the existence of an ordinance requiring segregation in 
restaurants in Birmingham (R. 24-26), the court ruled that 
there was no question raised in the record, by the pleadings, 
of any ordinances requiring segregation in restaurants (R. 
63). However, ordinances of the City of Birmingham are 
judicially noticeable in Alabama (7 Code of Alabama, §429 
(1)). The court then concluded that since the department 
store involved Avas a private enterprise, petitioner entered 
as a licensee \Adiose license was destroyed when petitioner 
was requested to leave the restaurant by an official and re­
fused, making him a trespasser (R. 63-64). The court also 
ruled that since the store oAvned the premises which peti­
tioner refused to leave, the store had “a full right to limit 
the use of its OAvn premises as it saw fit” (R. 63), a right 
which the Alabama Court of Appeals regarded as inviolate 
saying: “The right to operate a restaurant on its OAvn 
premises under such conditions as it saAv fit to impose Avas



7

an inalienable property right possessed by the Pizitz store” 
(R. 63).

All of the petitioners were arrested on March 31, 1960. 
The facts developed on each of the five trials follows:

Gober and Davis

Petitioners Gober and Davis were arrested in Pizitz’s 
Department Store by a police officer who had gone there in 
response to a report of a “disturbance” or “commotion” (R.
18) . On direct examination by the City’s attorney the officer 
was asked:

“Q. When you got to the dining or eating area what 
did you find that was unusual or out of the ordinary? 
A. Well, I found that the cafeteria part was closed to 
all customers and I found two Negro males sitting in 
the eating part of the cafeteria” (R. 18).

When asked what they were doing the officer responded, 
“They were sitting there just talking to one another” (R.
19) . No one said anything to either petitioner in the pres­
ence of the arresting officer (R. 19); and the officer did not 
speak to any personnel connected with the store in the 
presence of petitioners (R. 19). The report pursuant to 
which the officer acted came from his superior (R. 19-20). 
No member of the store requested the officer to arrest peti­
tioners (R. 20).

In addition to the arresting officer, the controller of the 
store testified that he did not make any remark to peti­
tioners (R. 21, 23) although an assistant to the president 
asked petitioners to leave the tea room area (R. 23). The 
president’s assistant told petitioners they could be served 
in the Negro restaurant in the basement (R. 23). “He (the 
assistant to the president) told them it would be against 
the law to serve them there” (R. 24). At this point peti-



8

tioners’ counsel developed the fact that there is an ordinance 
of the City of Birmingham requiring racial segregation in 
eating facilities (R. 24-25). The controller was then asked: 
“Q. Did you or any official at Pizitz’s call the police? A. 
No sir” (R. 26). Once again he was asked: “Q. So far as 
you know, no official at Pizitz’s had filed a complaint with 
the Police Department at that time? A. That is right” (R.
27) .

Petitioner Davis, a student at Daniel Payne College (R.
28) , testified that on the day in question he made purchases 
at Pizitz’s and then attempted to obtain service in the lunch 
area (R. 43-44). The waitresses never came (R. 44). Davis 
and his companion, Gober (R. 50), were told by some un­
identified person that they could be served in a place re­
served for Negroes (R. 44-45). The lunch area was located 
on the mezzanine (R. 44). No sign indicated a racial re­
striction as to service (R. 44). Petitioners were not asked 
to leave the store or the place where they were sitting (R. 
44). On cross-examination, it was established that petitioner 
Davis had gone to Reverend Shuttlesworth’s house to be ad­
vised on March 30, 1960. Petitioner Gober was also there, 
as well as petitioners Hutchinson, King, Parker, Sanders, 
Walker, West, Westmoreland and Willis (R. 46-48).

Q. You went there voluntarily? A. That is right.
Q. Nobody solicited you to come there? A. That 

is right.
Q. Nobody came to Daniel Payne College and asked 

for volunteers to go to the meeting? A. That is right.
Q. How did you know about the meeting? A. We 

went there for advice. We went to his home.
Q. Who did you go there with? A. Reverend Bil­

lups was on the campus and I asked him to take us over 
there if he was going to town and he did so (R. 47).



9

H utchinson and K ing

Petitioners Hutchinson and King were arrested when they 
were sitting alone at a table in the dining area of Loveman’s 
Department Store (K. 107-108). The arresting officer, Mar­
tin, was directed to go to Loveman’s by another officer, Holt 
(R. 107). When Officer Martin arrived, he saw a rope from 
one post to another going up to the mezzanine or eating 
place with a sign marked closed (R. 107). There were no 
signs limiting the use of the facility to whites or Negroes 
(R. 108). There was no conversation with petitioners other 
than to tell them they were under arrest (R. 107). There 
was no disorder (R. 109) and no person connected with the 
store personally informed Martin that petitioners had been 
directed to leave (R. 108).

The concessionaire in charge of the food department who 
observed petitioners in the dining area on the day of their 
arrest had had no conversation with them (R. 109-110) but 
heard Mr. Kidd of the store’s Protection Department tell 
petitioners to leave in the folloAving manner: “He an­
nounced in general terms that the tea room was closed and 
for everyone to leave” (R. 110). According to this witness, 
petitioners remained seated along with other persons, who 
were white, until the police arrived. Lt. Pierce approached 
and asked him if he was the manager and said someone had 
called the police and had told them that there were “two 
people” in Loveman’s “trying to be served,” and he asked, 
“Where are they?” Mr. Schmid, the concessionaire, was 
asked whether there was any disturbance. His reply was, 
“It naturally is you know in this case” (R. 112). However, 
he did not call the police and he didn’t know who called 
(R. 112). The waiters left the floor when petitioners seated 
themselves (R. 112). And when the officer came, the con­
cessionaire left the floor (R. 113). About 25 white customers 
were still eating when the police arrived (R. 113). The store



10

detective, D. V. Kidd, announced to the whites seated on the 
mezzanine in the presence of petitioners that the store was 
being closed but did not speak directly to petitioners (R. 
115). The officer did not arrest petitioners in his presence 
(R. 115). Mr. Kidd testified that in closing the food service 
the store manager hung up a sign saying closed (R. 117), 
but he (Kidd) did not see petitioners until the crowd dis­
persed, the milling crowd being the cause for closing (R. 
117). He, too, admitted that no one connected with Love- 
man’s Department Store called police (R. 118). He did not 
tell the officer anything other than the fact that people were 
milling around and he “found the two colored boys sitting 
there and we had closed the tea area” (R. 118).

The detective testified that there was a place on the 7tli 
floor where Negroes may be served (R. 119); however, the 
policy of Loveman’s regarding service of Negroes at the 
lunch tables was not known to this witness. He testified, 
“ . . . the policy of the store I do not know, I have never 
been informed in regard to that although on all of the oc­
casions I visited the mezzanine I have never seen any 
colored eating on the mezzanine” (R. 121). The detective 
did not sign a complaint or affidavit for the arrest of these 
petitioners (R. 121-122).

On the other hand, the concessionaire testified that Love- 
man’s has no separate accommodations for Negroes (R.
113) . The two eating facilities, one in the basement and 
one in the mezzanine, are for white customers only (R. 113-
114) . Negroes are permitted to trade in the store which 
sells household goods, furnishings, notions, etc. (R. 114).

P arker and W est

Petitioners Parker and West were arrested in Newberry’s 
Department Store. Officer B. R. Myers arrived about 10:30 
A. M. and saw “two colored males” seated at the lunch 
counter. He had no conversation with them or any store



11

official (R. 158-159). Petitioners had no conversation with 
any employees of Newberry’s in the presence of the officer 
(R. 159). The officer arrested petitioners on the strength of 
a call which had been received from police headquarters to 
go to Newberry’s (R. 159). The arresting officer understood 
that the complaint regarding petitioners’ presence in New­
berry’s had been received by officer Stoddard from a man 
named Stallings of the department store (R. 160-161).

The store detective in Newberry’s, Mrs. L. B. Gibbs, tes­
tified that she told petitioners West and Parker to leave 
(R. 162) and to go to the snack bar for colored on the 4th 
floor, but, “They said they were not leaving, that they were 
not violating any law” (R. 163). Newberry’s has three lunch 
counters, one on the first floor and one in the basement for 
white customers only and one on the fourth floor for Ne­
groes (R. 163). Lloyd L. Stallings, Assistant Store Man­
ager, testified that he was called from his office by “some­
one” who said “there was a lot of confusion at the lunch 
counter” and would he come down. When he got down to 
the main floor he saw two colored men seated there (R. 
164). He addressed petitioners as follows: “You know you 
can’t do this . . . we have a lunch counter up on the fourth 
floor for colored people only. We would appreciate it if 
you would go up there” (R. 164). In reply defendants said, 
“We have our rights.” Mr. Stallings testified, however, 
that he did not call the police and doesn’t know who did 
(R. 165). Even after the police arrived he made no com­
plaint to them or subsequently and to his knowledge no one 
else connected with the store did either (R. 165).

Newberry’s is a national chain store engaged in selling 
goods to the public (R. 165). Although the fourth floor lunch 
counter has a sign saying for colored only, the one on the 
first floor has no sign limiting service on racial grounds (R. 
166). Negroes and whites, of course, shop at other depart-



12

ments on the first floor where this lunch counter is located 
(R. 166). When petitioners’ counsel tried to develop the 
fact that Newberry’s policy concerning Negroes is depen­
dent upon the custom of the community, this testimony was 
ruled incompetent by the court and exception taken (R. 167- 
168).

Petitioner West testified that he met petitioner Parker on 
the date in question, made a couple of purchases and then 
invited Parker to go with him and have something to eat. 
They went to the lunch counter on the first floor. Other 
white persons were seated at the counter (R. 171). The 
waitress never came over to take their order and no one 
invited them to leave (R. 171). The arresting officer or­
dered the white people dining at the counter to get up. All 
of them did not leave (R. 172). Petitioner West then got 
up to leave and the arresting officer grabbed him from be­
hind. He told petitioners they were under arrest but did 
not say what for (R. 172-173). This petitioner testified that 
he had expected to get service because he had been served 
at other counters without difficulty (R. 173).

iSanders and W estm oreland

Petitioners Sanders and Westmoreland were arrested as 
they sat alone in the basement lunchroom of Kress’s 5 
& 10  ̂ store (R. 208-209). Officer Caldwell arrived pur­
suant to a call from police headquarters (R. 208-209). 
The officer testified that the manager told him in the 
presence of petitioners that petitioners could not be served 
where they were seated and then turned out the lights and 
closed the counter (R. 209). Thereupon this officer arrested 
petitioners although the manager did not request the arrest 
or tell petitioners to leave the counter (R. 209-210). The 
lunch counter manager testified that he approached peti­
tioners and told them they could not be served there and put 
up a closed sign. Petitioners were sitting at a counter in



13

one bay or section thereof when the manager turned off 
the lights. Petitioners then moved to another bay and the 
lights were turned off there (R. 211-212). One youth said, 
“We have our rights.” The lunch counter manager then 
called the manager of the store. The store manager asked 
petitioners to leave but petitioners did not answer (R. 212). 
The police arrived as both managers turned away from the 
petitioners. It was intended only that petitioners leave the 
area, not the store (R. 213). Everyone left the counter when 
it was closed except an elderly woman who finished her 
sandwich. She remained after police arrived but was not 
arrested (R. 217). The lunch counter manager did not 
himself call the police, did not ask them to arrest petitioners, 
and did not sign an affidavit (R. 213).

Kress is also a department store selling to the general 
public (R. 214). No facilities are provided for colored 
customers (R. 215). Lunch counters at Kress are for cus­
tomers who come into the store (R. 215). Negroes are 
served food at the lunch counters to carry out (R. 218), 
and buy equally and without discrimination at all other 
counters (R. 216).

W alker and W illis

Petitioners Walker and Willis were arrested in Wool- 
worth’s. The lunch counter there was on the first floor. The 
arresting officer, Richard Casey, testified that when he a r­
rived the lights were turned out over the counter and Mrs. 
Evans, the manager was waiting for him (R. 251); that 
petitioners were seated at the counter. He had no conversa­
tion with them (R. 252) although Mrs. Evans told him that 
she had asked petitioners to leave, that the place was 
closed; that she then told petitioners the counter was 
closed, that they would have to leave (R. 252-253); and that 
there was no one else seated at the lunch counter at that



14

point (R. 253). The officer admitted that Mrs. Evans did 
not instruct him to arrest petitioners and no one else con­
nected with the store did either (R. 253).

Petitioner Walker testified, on the other hand, that on 
the date in question he went to Woolworth’s to purchase 
handkerchiefs and a birthday gift for a friend. He met 
petitioner Willis there who also made purchases (R. 255). 
They then went to the lunch counter but did not get a chance 
to order anything. They were refused service by the first 
waitress and just sat there until the police arrived (R. 256). 
He never saw the store manager, Mrs. Evans, until his trial 
in the Recorder’s Court (R. 256). He was never asked to 
leave by anyone connected with the store. When the police 
arrived they requested the white customers seated at the 
counter to leave. A white man sitting next to petitioners 
refused to move, but the police required him to do so, al­
though he was not arrested (R. 256). Petitioner Walker 
also testified that he saw officer Casey for the first time when 
he was taken outside of the store to the patrol car and that 
Casey was not the officer who had taken them out of the 
store. The counter contained no sign limiting service to 
“white or colored” (R. 257).

Facts C om m on to Each Case

The following significant facts appear in each of these 
cases:

1. The protest demonstration in each case took place 
in a department store where petitioners and all other mem­
bers of the public were invited to trade, and did, at all 
counters except the lunch counter in question (Gober and 
Davis, R. 43-44, 50; Hutchinson and Davis 114, 119-120; 
Parker and West 165-166, 169, 170; Sanders and West­
moreland 214-216, 218; Walker and Willis 255-256, 257-258).



15

2. All of these petitioners sought to purchase food in 
an area of the premises where any member of the white 
public could make this purchase and where there was no 
sign limiting this purchase to white customers (Gober and 
Davis, R. 44, 50; Hutchinson and King 108, 113; Parker 
and West 163, 166, 171; Sanders and Westmoreland 216, 
218; Walker and Willis 257).

3. In each case it appears that the police arrived at the 
store, not pursuant to any call made by someone connected 
with the store, but pursuant to orders from police head­
quarters or a superior officer, arrested petitioners without 
being requested to make the arrest by any agent of the 
store, and petitioners were prosecuted by the City although 
no one connected with the store signed a complaint or 
affidavit upon which the prosecution was based (Gober and 
Davis, R. 19-20, 26-27; Hutchinson and King 107, 112, 113, 
115, 118, 121-122; Parker and West 159-161, 165; Sanders 
and Westmoreland 210, 213; Walker and Willis 252-253, 
254).

4. In no case is there evidence that the person requesting 
petitioners to leave the lunch area identified himself, or 
stated his authority to make the request, or requested peti­
tioners to leave the store as opposed to the lunch area 
(Gober and Davis, R. 21, 23, 44-45; Hutchinson and King 
110, 115-116; Parker and West 162, 171; Sanders and 
Westmoreland 209-210, 211, 213; Walker and Willis 252- 
253, 256). 5

5. In each case the charge was the same, i.e., petitioners 
“did go or remain on the premises of another, said premises 
being the area used for eating, drinking and dining pur­
poses . . . after being warned not to do so” (Gober, R. 2, 
Davis 73, Hutchinson 93, King 129, Parker 145, West 183, 
Sanders 195, Westmoreland 225, Walker 239, Willis 267).



16

6. Petitioners were at all times orderly (Gober and 
Davis, R. 19-20; Hutchinson and King 109, 117-118; Parker 
and West 158; Sanders and Westmoreland 209).

Summary of Argument

I.

Petitioners’ convictions cannot stand consistently with 
the equal protection and due process imperatives of the 
Fourteenth Amendment. These convictions were, in reality, 
predicated on a city ordinance requiring racial segregation 
in eating facilities, buttressed by a massive state policy 
of racial segregation, the enforcement of which, as demon­
strated by the records in these cases, clearly violates the 
equal protection clause of the Fourteenth Amendment. 
Turner v. City of Memphis, 369 U. S. 350. If the depart­
ment stores’ policy were the sole basis for these convictions, 
these convictions would nevertheless violate the equal pro­
tection clause of the Fourteenth Amendment since enforce­
ment of such private discrimination was dependent upon 
the state’s exertion of the full power of its judicial arm. 
Shelley v. Kraemer, 334 U. S. 1. There is no asserted 
invasion of the right of privacy in these cases. The prem­
ises in question were thrown open to the general public, 
including petitioners. Marsh v. Alabama, 326 U. S. 501. 
The premises are a part of the public life of the community, 
extensively regulated and licensed by the state, making 
state enforcement of racial segregation therein peculiarly 
repugnant to the requirements of equal protection. Burton 
v. Wilmington Parking Authority, 365 U. S. 714. The prop­
erty right asserted, which is a right to control the associa­
tions of customers at a public department store lunch 
counter, when all other counters are free from such control, 
is patently inconsequential when weighed against the high



17

purposes of the Fourteenth Amendment. The state cannot 
claim the right to enforce racial segregation in a public 
department store where the segregation has been generated 
by state policy and the state has failed to protect its citizens, 
for whose benefit the Fourteenth Amendment was adopted, 
with respect to equal access to public accommodations. The 
decision in the Civil Rights Cases, 109 U. S. 3, was predi­
cated on the assumption that the states had provided such 
protection.

II.
The due process guarantees of the Fourteenth Amend­

ment require reversal of these convictions as infringements 
upon freedom of speech. Petitioners here sought peace­
fully to persuade the owners of department stores to serve 
them on the same terms and conditions applicable to white 
customers. Their efforts at persuasion took the form of a 
non-verbal demonstration called a “sit-in”. The protest was 
entirely appropriate to the circumstances, including the use 
to which the property had been dedicated by the owners. 
The owners chose to endure the controversy, rather than 
call the police, demand arrest, or file a formal complaint, 
by letting the petitioners remain seated at the lunch counter 
or by closing it to all customers. Their expression was 
not in such circumstances or of such a nature as to pose 
a clear and present danger of any substantive evil which 
Alabama had a right to proscribe. The ordinance, for vio­
lation of which petitioners were actually convicted, is un­
reasonably vague and, therefore, offends the due process 
clause of the Fourteenth Amendment. The ordinance was 
construed by the Alabama courts to uphold convictions ob­
tained without proof that petitioners were requested to 
leave by a person who had established his or her authority 
to issue the request when same was made. Due process re­
quires more notice that the law will exact a penalty under 
the circumstances of this case.



18

A R G U M E N T

I.

Alabama’s Judgments in These Cases Are Inconsistent 
With the Constitutional Mandate of Equal Protection.

A. Petitioners’ Convictions Were Decreed by Birmingham’s 
Restaurant Segregation Ordinance.

The constitutional command—“No state shall . . . deny 
to any person within its jurisdiction the equal protection of 
the laws”—is an injunction against state decreed exclusion 
of Negroes from eating facilities. Turner v. City of 
Memphis, 369 U. S. 350; Burton v. Wilmington Parking 
Authority, 365 U. S. 715; Boynton v. Virginia, 364 U. S. 454. 
However, notwithstanding these recent decisions by this 
Court, and the frequency with which this Court has invoked 
this prohibition against various other manifestations of 
state enforced racial segregation, Bailey v. Patterson, 369 
U. S. 31; State Athletic Commission v. Dorsey, 359 U. S. 
533; Aaron v. Cooper, 358 U. S. 1; Holmes v. City of 
Atlanta, 350 U. S. 879; Brown v. Board of Education of 
Topeka, 347 U. S. 483; Barrows v. Jackson, 346 U. S. 249; 
Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) aff’d 
336 U. S. 933; Shelley v. Kraemer, 334 U. S. 1; Buchanan 
v. Warley, 245 U. S. 60, petitioners have been convicted 
by the courts of Alabama. Their crime: as Negroes they sat 
at a white department store lunch counter requesting 
service. If petitioners had been white, and their conduct 
identical, they would not have suffered the same fate.

Alabama’s racial policies are a matter of common and 
historical knowledge still clearly defined by statute and 
ordinance. In this case, §369, General Code of Birming­
ham, 1944, makes it “unlawful to conduct a restaurant or



19

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 unless a separate 
entrance from the street is provided for each compartment.”

In apparent compliance with this ordinance, Pizitz’s De­
partment Store provides a food service for its white cus­
tomers on the mezzanine (E. 44) and a separate food 
service for its Negro customers in the basement (R. 24). 
The food concessionaire at Loveman’s Department Store 
testified that there are two food areas in Loveman's, one 
on the mezzanine and one in the basement, both for white 
customers only (R. 114). On the other hand, the store de­
tective testified that on the seventh floor there was a place 
where Negroes “may” be served food (R. 119). Newberry’s 
has two lunch counters for its white customers, one on 
the first floor, the other in the basement (R. 163). Colored 
customers are served on the fourth floor (R. 163). Kress’s 
5 and 10  ̂ Store has a luncheon area in the basement for 
its white customers. Negroes are permitted to purchase 
food at this counter to take out; they are not permitted to 
sit down and eat (R. 218). Woolworth’s has a lunch counter 
on the first floor for white persons only (R. 251, 256).

Consequently, as each arresting officer entered the de­
partment store and saw “two Negro males” seated at a 
lunch counter customarily serving whites only, this, without 
further explanation, was cause for arrest.

The City’s attorney said to the arresting officer in the 
first case:

“Q. When you got to the dining or eating area what 
did you find that was unusual or out of the ordinary? 
A. Well, I found that the cafeteria part was closed



20

to all customers and I found two Negro males seated 
in the eating part of the cafeteria” (R. 18).

In the second case, the police officer who made the arrest 
simply observed as he entered the store that, ‘‘two Negro 
boys” were sitting ‘‘to the right of the Cashier’s cage at 
the tables there where food is served” (R. 107) with whom 
he had no conversation “other than to tell them they were 
under arrest” (R. 107).

Again, in the third case, the arresting officer was asked:

“Q. Did you find anything out of the ordinary there 
at that time?” [when he entered the store] A. Two 
colored males were sitting at the luncheon counter” 
(R. 158).

Similarly, in the fourth case, the officer was queried as 
follows:

“Q. What did you observe if anything unusual on 
that occasion? A. Officer Thompson and I went down­
stairs in the basement. The lunch counter was closed. 
The lights were out. We observed two black males, 
Roosevelt Westmoreland and Robert D. Sanders, sit­
ting there” (R. 209).

And finally, in the last case, the officer was asked:
“Q. Did you observe anything usual or out of the 

ordinary on that occasion? A. The lights were out 
over the luncheon counter and there were two Negro 
males seated at the counter. Mrs. Evans was waiting 
there for the officer” (R. 251).

The records in these cases clearly demonstrate that the 
racial policy being enforced here was that of the City and 
not that of the owners of the premises.



21

The records disclose first that in each instance the police 
arrived pursuant to their own volition and not pursuant to 
any call from the owner of the premises or one of his agents 
(E. 26,112,165, 212-213, 252).

Second, the evidence is uncontradicted that in no case 
was the officer requested by an employee of the store to 
arrest petitioners (R. 26, 121, 165, 213, 253).

Moreover, the prosecutions of petitioners were not predi­
cated on any formal complaint or affidavit filed by any 
person connected with the stores (R. 26, 121-122, 165, 213- 
214, 253).

In the first case, involving Pizitz’s Department Store, 
the assistant to the president in requesting petitioners to 
leave the tea room “told them it would be against the law 
to serve them there” (R. 24). Petitioners’ counsel then ad­
vised the trial court:

“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 segregation law and not 
because of Pizitz’s policy” (R. 24).

The court did not permit the development of this theory 
(R. 24-26).

A similar effort by petitioners’ counsel in another case 
to develop the fact that the exclusion from the dining area 
was not required by the policy of the store, as distinct from 
the policy of the city, also was restrained by the court. 
Petitioners’ counsel queried:

“Q. Does Newberry’s have a policy of serving and 
not serving persons of another race or particular 
color?” (R. 166).



22

This question was objected to as incompetent, irrelevant 
and immaterial (R. 167). In sustaining the objection the 
court said:

“Can we adjudicate cases here on persons or corpo­
rations’ policies?” (R. 167) “ * * * We can’t. I 
pointed that out this morning. We are not dealing with 
policies of stores. We are dealing with a city code” 
(R. 167).

In the case involving Loveman’s department store, the 
store detective who had notified the people to leave the 
dining area when he noticed people were milling around 
(R. 114-115) and after doing so noticed the petitioners in 
that case, Hutchinson and King, sitting at the table (R. 
117), was specifically questioned regarding Loveman’s 
policy of serving Negroes:

“Q. Do you know have they been told not to come 
and eat in the tea room at Loveman’s?”

*  #  *  #  #

“A. Well in my short time I have been there I have 
never, the policy of the store I do not know, I  have 
never been informed in regard to that although on 
all of the occasions I visited the mezzanine I have 
never seen any colored eating on the mezzanine” 
(R. 121).

Perhaps the most significant fact developed by petition­
ers’ counsel relating to the question whether a City seg­
regation ordinance was being adhered to by the owners 
of the premises was the fact that in each of the department 
stores petitioners were accommodated at all counters ex­
cept the food service counters (R. 43-44, 50; 114-119-120; 
165-166, 169-170; 214-216, 218; 255-256, 257-258).



23

The testimony in these cases leaves no doubt that the 
owners of the premises did not demand arrest and prose­
cution of petitioners. Their method of resolving the con­
troversy was simply to close the counters or let petitioners 
just sit there (R. 18, 107, 164, 209, 251). They obviously 
did not desire to incur the risk of losing their Negro trade 
since in each case they requested only that these Negro 
customers leave that particular counter or area, not the 
store (R. 45, 115-116, 162, 213, 253).

Petitioners were therefore arrested, charged, prosecuted, 
convicted, and sentenced by the City of Birmingham in 
order to enforce its unequivocal policy of racial discrimina­
tion in eating facilities set forth in §369 of the City’s Code.*

B. P etition ers’ C onvictions W ere D ecreed  by a M assive  
State S egregation  P olicy .

Birmingham’s racial segregation edicts as expressed by 
ordinance have not been limited to restaurants. Recently, 
in Shuttlesworth v. Gaylord, 202 F. Supp. 59 (N. D. Ala. 
1961) an ordinance requiring racial segregation in recrea­
tional facilities was held constitutionally void on equal pro­
tection grounds. An ordinance restricting the areas in 
which Birmingham Negroes might live earlier met a similar 
demise. Monk v. City of Birmingham, 87 F. Supp. 538 
(N. D. Ala. 1949), aff’d 185 F. 2d 859, cert. den. 341 U. S. 
940. Even in the absence of an ordinance, segregation has 
been enforced as a matter of policy, custom, usage and 
arrest, Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958), 
as well as regulation, Boman v. Birmingham Transit Co., 
280 F. 2d 531 (5th Cir. 1960).

* Ordinances of the City of Birmingham are judicially noticeable 
by the Alabama courts. Code of Alabama, Recompiled 1958, Title 7, 
§429(1).



24

Also operative here was an equally affirmative state 
policy of racial segregation in many other areas clearly 
defined by statute. Alabama is, of course, one of the south­
ern states in which there is still complete racial segrega­
tion at every level of public education, despite the repeal 
of school segregation laws in 1956,1 replaced by a state 
pupil assignment law, see, Shuttlesworth v. Board of Ed­
ucation, 162 F. Supp. 372 (N. D. Ala. 58 aff’d 358 U. S. 
101), which has produced no desegregation.2 There can 
be no intermarriage between the races in Alabama.3 Adul­
tery and fornication between Negroes and whites is a spe­
cial crime.4 State policy requires the segregation of pau­
pers,5 prisoners,0 railroad waiting rooms,7 railroad coaches,8 
motor busses,9 accounts of poll taxes paid by each race,10 
delinquents,11 tubercular patients,12 and residents of mental 
institutions.13

Consequently, involved in this case is the enforcement of 
state policy expressed in a city ordinance and buttressed by 1 2 3 4 5 6 7 8 9 10 11 12 13

1 Ala. Const., Art. 14, §256.
2 Southern School News, August 1960, Vol. 9, No. 2, p. 1.
3 Green v. S ta te , 58 Ala. 190.
4 Ala. Code, Recompiled, 1958, Title 14-360.
5 Id. Title 44-10.
6 Id . Title 45-52 and 121-3.
7 Id . Title 48-186.
8 Id . Title 48-196-198.
9 Id . Title 48-301 (31a) to (31c) held unconstitutional in 

B row der v. Gayle, 142 F. Supp. 707, aff’d 352 U. S. 903.
10 Id . Title 51-244.
11 Id . Title 52-613 (1).
12 Id . Title 45 §4
13 Id. Title 45 §248.



25

a network of state segregation statutes. But if there is 
anything which is proscribed by the equal protection clause 
of the Fourteenth Amendment to the Federal Constitution, 
it is the enforcement of an affirmative state policy of racial 
segregation. And when, as here, it is enforced by the ex­
ecutive and judicial arms of the state, via arrest, prosecu­
tion, conviction and sentence for trespass after warning, 
consisting of refusal to leave a white department store 
lunch counter, the Fourteenth Amendment’s injunction 
clearly applies. Shelley v. Kraemer, 334 U. S. 1.

C. State E n fo rcem en t o f  P rivate R acial D iscrim in ation  Is
L ikew ise P roscrib ed  by the F ou rteen th  A m endm ent.

Birmingham’s segregation ordinance, by its terms, does 
not place any criminal liability on petitioners. The ordi­
nance makes it unlawful to operate a restaurant which is 
nonsegregated. Consequently, in each of these cases, the 
City complained that these petitioners “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
......................, 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 City’s attorney contended on the trial that there 
was nothing more involved here than the enforcement of 
this ordinance. “I want to object to the references to the 
segregation ordinance. This ordinance has nothing to do 
with the matter of segregation and applies to anybody on 
the premises of another who is asked to leave and refuses. 
Segregation is not mentioned in the ordinance” (R. 26).

But in every case, the City introduced evidence to prove 
that petitioners were asked by some employee of the store



26

to leave the dining area reserved for white customers (R. 
21, 115, 162, 211, 252-253).

The record is thus clear that the City was fully aware 
that the enforcement of racial segregation was involved 
in its prosecution of petitioners.

Petitioners’ convictions were affirmed by the Court of 
Appeals of Alabama as against a Fourteenth Amendment 
equal protection claim on the ground that the department 
store had “a full right to limit the use of its own premises 
as it saw fit” (R. 63). But, Shelley v. Kraemer, 334 U. S. 1, 
teaches that although there may, in some circumstances, 
be a personal privilege to discriminate on the grounds of 
race, this privilege may be exercised only so long as it does 
not require the assistance of the state for its effectuation. 
Discrimination on the part of a private individual becomes 
state action at the point at which the state becomes in­
volved. Burton v. Wilmington Parking Authority, 365 U. S. 
715. And the fact that such discrimination is enforced by 
the judicial arm of the state acting as a “neutral” referee 
does not preclude application of the Fourteenth Amend­
ment’s prohibition. Shelley v. Kraemer, supra. See also, 
Barrows v. Jackson, 341 U. S. 524; N.A.A.C.P. v. Alabama, 
357 U. S. 499, 463. The Fourteenth Amendment also has 
been invoked against racial discrimination on the part of 
the police. Taylor v. Louisiana, 370 U. S. 154; Monroe v. 
Pape, 365 U. S. 167; Screws v. United States, 325 U. S. 91. 
The only private discrimination outside the scope of the 
Fourteenth Amendment is that which is “unsupported by 
state authority in the shape of laws, customs or judicial 
or executive proceedings” or “not sanctioned in some way 
by the state.” Civil Rights Cases, 109 U. S. 3, 17. Clearly 
within the scope of that amendment is “state laws or state 
proceedings,” Civil Rights Cases, supra, at pp. 11, 23.



27

These convictions are void not only because they fly in 
the face of the Fourteenth Amendment’s prohibitions, but 
they deprive petitioners of rights secured to them by laws 
enacted by the Congress to enforce the provisions of that 
Amendment. Title 42, United States Code, §§1981, 1982 
and 1983. Section 1981 provides, “All persons within the 
jurisdiction of the United States shall have the same right 
in every state and territory to make and enforce contracts 
* * * and to the full and equal benefit of all laws and pro­
ceedings for the security of persons and property as is en­
joyed by white citizens * * * .” This is a case, therefore, 
where “the majestic generalities of the Fourteenth Amend­
ment are thus reduced to a concrete statutory command 
when cases involve race or color which is wanting in every 
other case of alleged discrimination.” Fay v. New York, 
332 U. S. 261, 282-283.

In any event, the City’s segregation ordinance and the 
massive state racist policy of which that ordinance is a 
part, precludes any suggestion that here the department 
store owners acted privately, unsanctioned by the state. In 
the context of this case, the department store’s “preference 
does not make the action ‘private,’ rather than ‘state,’ ac­
tion. If it did, a minuscule of private prejudice would con­
vert state into private action. Moreover, where the segre­
gation policy is the policy of a state, it matters not that 
the agency to enforce it is a private enterprise.” Garner 
v. Louisiana, 368 U. S. 157, 181 (Mr. Justice Douglas con­
curring).

The Court of Appeals of Alabama ruled that the appel­
lant “would destroy [the department store’s] property 
right by attempting to misapply the Fourteenth Amend­
ment, ignoring the provision in that Amendment that grants 
the right to a private property owner to the full use of his



28

property,. . . ” (R. 63). Significantly enough, the state does 
not claim that it prosecuted petitioners to secure the 
owner’s interest in privacy. Such a claim would be in­
consistent with the obvious fact that the owner of the 
premises here has thrown them open to the public, includ­
ing petitioners, for his own profit. Any suggestion that 
some exception to the Shelley rule should be made for a 
corporation which has sought state aid in enforcing racial 
discrimination in its premises open to the general public 
for profit, because somehow the inviolability of a private 
home may be impaired, is without merit. If this case in­
volved the enforcement of a trespass law to protect a real 
interest in privacy, as opposed to the situation here, ob­
viously a different result might obtain because of the im­
portance of the right of privacy which this Court has pro­
tected in other contexts. Breard v. Alexandria, 341 U. S. 
622, 626, 644; Kovacs v. Cooper, 336 U. S. 77. But in Martin 
v. Struthers, 319 U. S. 141, this Court weighed the privacy 
consideration against the competing constitutional right 
of freedom of religion and ruled in favor of the latter.14 
In these cases, the right to be free from state enforced 
racial segregation such as is evidenced by these records 
is not competing with any other interest which the state 
may have in protecting privacy.15

14 And see W atch tow er B ible and T ract Soc. v. M etropolitan  L ife  
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948), in which the New 
York courts distinguished between the right to solicit in the streets 
of a large scale housing project and to go, without invitation, into 
the hallways to visit private apartments.

15 To weigh considerations of privacy in a case involving racial
discrimination would comport with the views of the framers of 
the Fourteenth Amendment. During the debate on the bill to 
amend the C ivil B ights A c t of 1866, 14 Stat. 27, which served as the 
precursor to the C ivil R igh ts A c t of 1875, 18 Stat. 335, Senator 
Sumner distinguished between a man’s home and places and facili­
ties of public accommodation licensed by law: “Each person,
whether Senator or citizen, is always free to choose who shall be his



29

D. N o E ssentia l P rop erty  R igh t o f  the D epartm ent 
Store Is In fr in ged  H ere.

In affirming the convictions of petitioners the Court of 
Appeals of Alabama ruled that the petitioners’ Fourteenth 
Amendment claims would do violence to the property rights 
of the store owners: “The right to operate a restaurant on 
its own premises under such conditions as it saw fit to im­
pose was an inalienable property right possessed by” the 
department stores (R. 63). The Alabama court would thus 
distinguish these cases from those in which this Court in­
voked the prohibitions of the Fourteenth Amendment

friend, his associate, his guest. And does not the ancient proverb 
declare that a man is known by the company he keeps? But this 
assumes that he may choose for himself. His house is his ‘castle’; 
and this very designation, borrowed from the common law, shows 
his absolute independence within its walls; * * * but when he leaves 
his ‘castle’ and goes abroad, this independence is at an end. He 
walks the streets; but he is subject to the prevailing law o£ E qual­
i ty  j nor can he appropriate the sidewalk to his own exclusive use, 
driving into the gutter all whose skin is less white than his own. 
But nobody pretends that Equality in the highway, whether on 
pavement or sidewalk, is a question of society. And, permit me to 
say that E qu a lity  in  all in stitu tion s created or regulated  by law  
is as little a question of society” (emphasis added). After quoting 
Holingshed, Story, Kent, and Parsons on the common law duties of 
innkeepers and common carriers to treat all alike, Sumner then 
said: “As the inn cannot close its doors, or the public conveyance 
refuse a seat to any paying traveler, decent in condition, so must it 
be with the theater and other places of public amusement. Here 
are institutions whose peculiar object is the ‘pursuit of happiness,’ 
which has been placed among the equal rights of all.” Cong. Globe, 
42d Cong., 2d Sess. 382-383 (1872). It is not unreasonable that 
considerations of privacy should weigh so heavily. The right of 
privacy against intrusion on one’s premises or into one’s personal 
affairs, 4 Blackstone’s Commentaries Ch. 13, §5(6) (Wendell’s Ed. 
1850), was recognized at common law, and is recognized generally 
in American law. See A. L. I., R estatem ent of Torts, §867 (1939). 
This Court has recently reiterated that the due process clause pro­
tects privacy against intrusion by the States. M app v. Ohio, 367 
U. S. 643, 654, 655; W olf v. Colorado, 338 U. S. 25, 27-28. Cf. 
G ilbert v. M innesota, 254 U. S. 325, 336 (Justice Brandeis dissent­
ing) ; P ublic U tilities Comm’n v. Poliak, 343 U. S. 451, 464, 468.



30

against state enforcement of racial segregation by pro­
claiming the rights involved here to be wholly and solely 
the inalienable property rights of the store owners.

For this reason, a reexamination of the property right 
asserted here is required. States can and do prohibit racial 
discrimination in public eating places without offending 
any constitutionally protected property rights.10 Notwith­
standing the prohibitions of the Fourteenth Amendment, 
Alabama has imposed the requirement of racial segrega­
tion on private property owners as evidenced by the res­
taurant segregation ordinance in this case. Consequently, 
the claimed inviolate property right to discriminate as 
one desires on his property is not quite so absolute and 
inalienable as Alabama claims. “ [T]lie power of the state 
to create and enforce property interests must be exercised 
within the boundaries defined by the Fourteenth Amend­
ment.” Shelley v. Kraemer, 334 U. S. 122 citing Marsh v. 
Alabama, 326 U. S. 501. In the Marsh case, supra, at 506 
this Court ruled: “The more an owner for his benefit 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. Cf. Republic 
Aviation Co. v. Labor Board, 324, U. S. 793, 798, 802 n. 8.” 
No claim is made here that the Fourteenth Amendment 
forbids a state to assist in the enforcement of property 
rights, per se. Obviously the state has an obligation not 
to engage in or assist in the invasion of the privacy of the 
home. Considerations of privacy discussed in more detail, 16

16 See W e s te r n  T u r f  A s s ’n  v. G re e n b e rg , 204 U. S. 359; R a i lw a y  
M a il A s s ’n  v. C o rs i, 326 U. S. 88; D is t r i c t  o f  C o lu m b ia  v. J o h n  R . 
T h o m p so n  C o ., 346 U. S. 100; B o b -L o  E x c u r s io n  C o. v. M ic h ig a n ,  
333 U. S. 28; Konvitz & Leskes, A  C e n tu r y  o f  C iv i l  R ig h ts  172-177 
(1961).



31

supra pp. 27-29, afford a basis for distinguishing between 
permissible and impermissible state action in this area.

Since “property or ownership” is, as Mr. Justice Cardozo 
has written, a “bundle of privileges,” Henneford v. Silas 
Mason Co., 300 U. S. 577, 582, or as stated elsewhere, “a 
group or bundle of rights” given by the state, Blodgett, 
Comparative Economic Systems 24 (1944), it matters a 
great deal which of the rights or privileges constituting the 
owner’s property was enforced in this prosecution. Various 
characteristics of the property interest demonstrate that 
this case should not depart from the general rule that states 
may not support racial discrimination.

The asserted property interest is but a claimed right to 
control the conduct and associations of others. But this 
claimed right is clearly separable from other incidents of 
ownership of the property such as fixing prices, choosing 
merchandise for sale, setting hours of business, selling the 
business or closing it down, to name but a few.

The power to regulate the conduct and associations of 
others has never been an unrestrained property right. Il­
lustrations include limitations that the law has placed on 
those who would use their property to control the conduct 
of donees, as by requiring divorce or separation,17 or with 
respect to marriage,18 * * restrictions compelling separation of

17 Provisions requiring divorce or separation were held void in : 
D w yer v. K uchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 1934) ; In  
Be H aigh t’s W ill, 51 App. Div. 310, 64 N. Y. S. 1029 (2d Dept. 
1900) ; D avidson  v. W ilm ington  T ru st Co., 23 Del. Ch. 1, 2 A. 2d 
285 (Ch. 1938); W in terlan d  v. W interland, 389 111. 384, 59 N. E. 
2d 661 (1945) ; H awke v. E u yh art, 30 Neb. 149, 46 N. W. 422 
(1890); C ruger v. Phelps, 21 Misc. 252, 47 N. Y. S. 61 (Sup. Ct. 
1897).

18 Certain marriage clauses have been held ineffective, 6 Powell,
Beal P ro p erty  (|851; A. L. I., B estatem ent of P ro p erty , §424
(1944); M addox v. M addox, A d m ’r, 52 Va. 804 (1954).



32

a child from its parents,19 and requirements controlling cer­
tain personal habits.20

The power to impose restraints on alienation has been 
severely limited by courts and legislatures.21 Restrictive 
covenants have been limited by common law.22 Their en­
forcement in courts of equity23 and courts of law24 has 
been forbidden by the Fourteenth Amendment Avliere race 
was the reason for the restriction. And, of course, the rule 
against perpetuities is of ancient lineage.25

A business man is not always free to set his own prices. 
Fair trade acts on the one hand, approved by the Miller- 
Tydings Act amendment of §1 of the Sherman Act, 15 
U. S. C. §1, require some businessmen to sell at fixed prices.

19 Restrictions which compel the separation of a minor child from 
its parent have not been viewed with favor, 6 Powell, R eal P ro p erty  
1[858, at 64; In  Re C arple’s E sta te , 140 Misc. 459, 250 N. Y. S. 680 
(Surr. Ct. 1931); In  Re F orte’s W ill, 149 Misc. 327, 267 N. Y. S. 
603 (Surr. Ct. 1933) ; In  Re R ann ey’s E sta te , 161 Misc. 626, 292 
N. Y. S. 476 (Surr. Ct. 1936).

20 H olm es v. C onnecticut T ru st & Safe D eposit Co., 92 Conn. 507, 
103 Atl. 640 (1918) (condition that conveyee’s husband abstain 
from tobacco and liquor held void); cf. D ’Arcangelo v. D ’Arcangelo, 
137 N. J. Eq. 63, 43 A. 2d 169 (Ch. 1945) (legatee must employ 
testator’s brother as bus driver, at designated salary for a corpora­
tion in which legatee had received an interest; invalidated).

21 Gray, R estra in ts on the A lienation  of P ro p erty  §259 (2d ed. 
1895); A. L. I., R estatem ent of P ro p erty , Div. 4, Social Restrictions 
Imposed Upon the Creation of Property Interests 2121 (1944); 
Browder, Illegal C onditions and L im ita tions: Miscellaneous P ro­
visions, 1 Okla. L. Rev. 237 (1948).

22 P orter v. B arrett, 233 Mich. 373, 206 N. W. 532 (1925).
23 Shelley v. K raem er, 334 U. S. 1.
24 B arrow s v. Jackson, 346 U. S. 249.
25 Gray, The Rule A gainst P erpe tu ities §201 (4th ed. 1942) ; 6 

Powell, Real P ro p erty , ff[759-827; Leach, P erpe tu ities in  a N utshell, 
51 Harv. L. Rev. 638 (1938).



33

Anti-trust concepts on the other hand, originating in the 
common law, Apex Hosiery Co. v. Leader, 310 U. S. 469 
(1940), United States v. Addyston Pipe <& Steel Co., 85 
Fed. 271 (6th Cir. 1898), aff’d, 175 U. S. 211 (1899), and 
embodied in the statutes of the United States, Robinson- 
Patman Act, 15 U. S. C. §13 et seq.; Clayton Act, 15 U. S. C. 
§12 et seq.; Sherman Anti-Trust Act, 15 U. S. C. §1 et seq., 
have condemned price discrimination, price fixing, and con­
spiracies to fix resale prices. The right to select customers 
has also been curtailed by the antitrust laws,26 as well as 
common law, and even the right of a single trader has been 
greatly limited.27

Numerous statutes and ordinances limit property holders 
in their power to refuse to sell or rent on grounds of race 
or color28 or to refuse to serve patrons in public accom-

26 K lo r’s v. B roadw ay-H ale S tores, 359 U. S. 207 (1959); Lorain  
Journal Co. v. U. S., 342 U. S. 143 (1951).

27 U nited S ta tes v. Colgate, 250 U. S. 300 (1919); See U. S. v. 
Parke, D avis & Co., 362 U. S. 29 (1960) ; Rankin, The P arke , D avis 
Case, 1961 Antitrust Law Symposium, New York State Bar As­
sociation Section on Antitrust Law 63 (1961).

28 Cal. Health & Safety Code §35740; Mass. G. L. c. 151B, 
§6 (Supp. 1961); N. J. Stat. Ann. §18:25-4 (Supp. 1961); Wash. 
Rev. Code §§49.60.030, 49.60.040 (1957); Cal. Civil Code, §51 
(Supp. 1961); Colo. Rev. Stat. Ann. §§69-7-1, to 69-7-7 (Supp. 
1960); Conn. Stat. Rev. §53-35 (Supp. 1960); Mass. Gen. L. c. 
151B, §4 (Supp. 1961), as amended by Acts, 1961, c. 128; Minn. 
Stat. Ann §§363.01-.13, as amended by L. 1961, e. 428 to become 
effective in 12/31/62; Ore. Rev. Stat. §659.033 (1959); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. Y. Executive Law, §290 
(Supp. 1962); Pa. Stat. Ann., tit. 43, §953 (Supp. 1961). Cases 
holding some of the ordinances and statutes constitutional are: 
L ev itt &  Sons, Inc. v. D ivision  A gainst D iscrim ination, 31 N. J. 
514, 158 A. 2d 177 (1960) ; Mass. Comm’n A gainst D iscrim ination  
v. Colangelo, 30 U. S. L. W. 2608 (Mass. 1962); S ta te  Comm’n 
A gainst D iscrim ination  v. Pelham  H all A partm en ts, 10 Misc. 2d 
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).



34

modations on tlie grounds of race or color.29 Historically, 
the right to select customers has been limited by common 
law and statute.30 It is well known that innkeepers and car­
riers do not have freedom arbitrarily to select or reject 
patrons. Beale, The Law of Innkeepers and Hotels (1906).

The foregoing limitations on the power to control the 
conduct and associations of others describe particular ex­
amples of the general principle that “property rights” are 
not “sacred” and “inalienable” in the sense that common 
law, statute, and constitution may not limit or shape them 
where they have harmful public consequences. Further

29 Cal. Civil Code, §§51-52 (Supp. 1960) ; Colo. Rev. Stat. Ann. 
25—1—1 et seq. (1953) ; Conn. Gen. Stat. Rev. §53-35 (Supp. 
1961); D. C. Code §47-2901 et seq. (Supp. 1960); Indiana Stat. 
Ann §§10-901, 10-902 (Supp. 1962); Iowa Code Ann. §735.1 
(1950) ; Kansas Gen. Stat. Ann. §21-2424 (1949) ; Mass. Gen. L. 
e. 272, §§92A, 98 (1956); Mich. Stat. Ann. §28.343 (Supp. 1959); 
Minn. Stat. Ann. §327.09 (1947); Mont. Rev. Codes §64-211 
(Supp. 1961); Neb. Rev. Stat. §§20-101, 102 (1943); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. J. Stat. Ann. §§10:1-2 to 
10:1-7 (1960); N. M. Stat. Ann. §§49-8-1 to 49-8-6 (Supp. 1961); 
N. Y. Civil Rights Law §40 (1948); Executive Law, §§292(9), 
296(2) (Supp. 1962); N. D. Cent. Code, §12-22-30 (Supp. 1961); 
Ohio Rev. Code §4112.02(G) (Supp. 1961); Ore. Rev. Stat. 
§§30.670-.680, as amended by L. 1961 c. 247; Pa. Stat. Ann., tit. 18, 
§4654, as amended by Act No. 19 (1961); R. I. Gen. Laws §§11-24-1 
to 11-24-6 (1956); Vt. Stat. Ann., tit. 13, §§1451, 1452 (1958); 
Wash. Rev. Code, §§49.60.040, 49.60.215 (1962); Wis. Stat. Ann. 
§924.04 (1958), as amended (Supp. 1962) ; Wyo. Stat. §§6-83.1, 
6-83.2 (Supp. 1961).

30 Mund, “The Right to Buy—And Its Denial to Small Business,” 
Senate Document #32, 85th Cong., 1st Sess., Select Committee on 
Small Business (1957); Adler, Business Jurisprudence, 28 Harv. 
L. Rev. 135 (1914); Statute of Labourers, 25 Ed. Ill, Stat. 1 
(1350) (no one could refuse to practice his calling to whomsoever 
applied). The following statutes penalized a businessman’s refusal 
to serve all comers: (1357), 31 Ed. Ill, c. 10 (vietualers) ; (1360), 
35 Ed. Ill (fishermen); (1433), 11 Hen. VI, c. 12 (chandlers); 
(1464), 4 Ed. IV, c. 7 (shoemakers); Lane v. Cotton, 1 Ld. Raym. 
646, 655; 1 Salk. 18, 19; 12 Mod. 472, 485 (“If a man takes upon 
himself a public employment, he is bound to serve the public as far 
as the employment extends; and for refusal an action lies . . . ”).



35

examples indicate different aspects of this thoroughly set­
tled, fundamental legal truth. Property owners have been 
compelled to destroy valuable cedar forests which har­
bored fungus threatening neighboring apple orchards,31 to 
spend funds to install fire extinguishing equipment,32 to 
limit the size of billboards,33 and to make loaves of bread 
a certain size.34 Moreover, employers have been compelled 
to allow labor organizational activities to be conducted on 
their property.35

And only recently property owners have been forbidden 
to use their property in a way which would intimidate 
Negro lessees in the exercise of the right to vote. United 
States v. Beaty, 288 F. 2d 653 (5th Cir. 1961).

Other facets of the claimed property right to discrimina­
tion on the basis of race in these circumstances are clearly 
separable from the core of the owner’s interest in its busi­
ness. In addition to the fact that no privacy has been 
intruded upon, the asserted property right did not seek 
to protect the premises from a use alien to their intended 
function. Petitioners sought only to use the premises and 
consume food in an area provided for such activity. The 
asserted right to exclude expressed only a preference for 
racial segregation and not any objection to petitioners 
demeanor or conduct. The capricious nature of discrim­
ination is highlighted by the fact that in one store, Kress’ 
5 & 10, there is a luncheonette in the basement where

31 M iller v. Schoene, 276 U. S. 272 (1928).
32 Queenside H ills R ea lty  Co. v. Saxl, 328 U. S. 80 (1946).
33 Sender v. Oregon S ta te  B oard of D ental E xam iners, 294 U. S. 

608 (1935); S t. Louis P oster A d vertis in g  Co. v. S t. Louis, 249 U. S. 
269 (1919); Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917).

34 Schm idinger v. Chicago, 226 U. S. 578.
35 N .L.R .B. v. Babcock & W ilcox Co., 351 U. S. 105 (1955); R e­

public A via tion  Corp. v. N .L.R .B ., 324 U. S. 793 (1945).



36

Negroes are permitted to purchase food to take out but 
are not permitted to sit down and eat (R. 218).

As in Shelley v. Kraemer, 334 U. S. 1, 10, the restaurant 
did not limit the type of use made of the premises, nor 
the type of persons or conduct permitted thereon. The 
restriction referred only to race. Moreover, the property 
interest enforced below attempted only to achieve discrim­
ination in premises thrown open by the owner to the gen­
eral public, including petitioners, for his own business 
advantage. Cf. Marsh v. Alabama, 326 U. S. 501, 506. The 
specific area within the store in dispute, i.e., the lunch 
counter, was a public part of the premises and an integral 
part of a single commercial establishment serving the 
public. Consequently, the property interest enforced below 
is simply a claimed right to enforce racial discrimination 
in very particular circumstances. It obviously is not true 
that refusal to enforce this asserted incident of ownership 
destroys the whole bundle of rights. That result would be 
contrary to the entire genius of our jurisprudence. The 
premise that the stores own the property does not lead 
to the ultimate logical extreme that they may absolutely 
control the conduct and association of others in the store. 
Mr. Justice Holmes has written that, “All rights tend to 
declare themselves absolute to their logical extreme yet 
all in fact are limited by the neighborhood of principles 
of policy which are other than those on which the particular 
right is founded and which become strong enough to hold 
their own when a certain point is reached.” Hudson County 
Water Co. v. McCarter, 209 U. S. 345, 355. Only last term 
Mr. Justice Frankfurter, dissenting, pointed out the in­
dubitable truth, “That an end of discrimination against 
the Negro was the compelling motive of the Civil War 
Amendments. The Fifteenth expresses this in terms and 
it is no less true of the Equal Protection Clause of the



37

Fourteenth.” Baker v. Carr, 369 U. S. 186, 285-86. In 
these cases the department stores property rights are 
limited by the Fourteenth Amendment and do not reach 
the constitutionally untenable, logical extreme that the 
states may aid the stores in upholding racism. “The Con­
stitution confers upon no individual the right to demand 
action by the state which results in the denial of equal 
protection of other individuals.” Shelley v. Kraemer, 324 
IT. S. 1, 22.

E. The State May Not Arrest and Convict Petitioners for 
Having Violated the State’s Segregation Policy in 
Premises in Which the State Is Deeply Involved 
Through Its Licensing and Regulatory Powers.

The all pervading nature of the state’s involvement— 
evidenced by extensive regulation and licensing—in the 
premises where petitioners were arrested for violating the 
state’s racial segregation policy demonstrates even further 
the necessity for invalidating the judgments below. Dis­
crimination here has been enforced in an area of public life 
with which the state is so intimately involved that the 
department stores lunch counters are by law extensively 
licensed and regulated. The extensive public character of 
the enterprise is revealed not only by the fact that the stores 
serve the general public hut by the interest which the state 
has demonstrated in that service. There is detailed regu­
lation of business corporations of the type involved here 
under Alabama law.36 Dispensing of food in Birmingham 
also is extensively regulated,37 including inspection of prem­
ises and the issuing of permits by the Health Department.38

36 Code of Alabama, Recompiled 1958, Title 10, §§1 to 263.
37 General City Code Birmingham, 1944, Ch. 14.
38 Id. §§348 and 376(a).



38

Alabama imposes a restaurant license tax,39 requires a 
soft drink retailer’s license,40 stores generally must be 
licensed,41 and of course there are health laws and regu­
lations for the operation of food handling establishments 
under state laws.42 As Mr. Justice Douglas wrote in Garner 
v. Louisiana, 368 U. S. at 183-84:

A state may not require segregation of the races on 
conventional public utilities any more than it can seg­
regate them in ordinary public facilities. As stated by 
the court in Boman v. Birmingham Transit Co. (C. A. 
5 Ala.), 280 F. 2d 531, 535, a public utility “is doing 
something the state deems useful for the public neces­
sity or convenience.” It was this idea that the first 
Mr. Justice Harlan, dissenting in Plessy v. Ferguson,
. . . advanced. Though a common carrier is private 
enterprise, “its work” he maintained is public. Id. 163 
U. S. at 554. And there can be no difference, in my 
view, between one kind of business that is regulated 
in the public interest and another kind so far as the 
problem of racial segregation is concerned. I do not 
believe that a State that licenses a business can license 
it to serve only whites or only blacks or only yellows 
or only browns. Race is an impermissible classifica­
tion when it comes to parks or other municipal facil­
ities by reason of the Equal Protection Clause of the 
Fourteenth Amendment.

In Public Utilities Comm’n v. Poliak, 343 U. S. 451, this 
Court found sufficient governmental responsibility to re-

39 Code of Alabama, Recompiled 1958, Title 51, §582.
40 Id . Title 51, Section 482.
41 Id . Title 51, Sections 620-629.
42 Id . Title 22, Section 85.



39

quire decision of a Fifth Amendment due process claim 
where the principal governmental involvement was a deci­
sion by a regulatory body to do nothing about private 
activity (i-adio broadcast on streetcars) it could have pro­
hibited. The lunch counter in this case is also regulated by 
government, although perhaps not so closely as the street­
car company in Poliak. But this case has an element that 
the Poliak case did not, i.e., that government has done so 
much to encourage racial segregation in public life that 
it must share responsibility for the discriminatory rule.

And see Steele v. Louisville and Nashville R.R. Co., 323 
U. S. 192; Nixon v. Condon, 286 U. S. 73; Retts v. Easley, 
161 Kans. 459, 169 P. 2d 831. In each of these cases, State 
initiative and licensing in establishing and maintaining 
the enterprise led to a holding or implication that the Fifth 
or Fourteenth Amendments forbid racial discrimination.

Here, indeed, is a case where the State “to some sig­
nificant extent” in many meaningful “manifestations has 
been found to have become involved. . . . ” Rurton v. 
Wilmington Parking Authority, 365 U. S. 715, 722.

F. These Convictions Must Be Reversed Since, in 
Addition to the Foregoing, Alabama Has Failed 
to Protect Petitioners’ Rights to Equal Access 
to Public Accommodations.

In the preceding sections of this brief, petitioners have 
established a basis for reversal of their convictions on 
several grounds: enforcement of a city ordinance requiring 
racial segregation, buttressed by a massive state segrega­
tion policy, state enforcement of private racial discrimina­
tion, enforcement of an arbitrary property claim, and 
elaborate state initiative and involvement in the enter­
prise and its maintenance. To these grounds for re­
versal should be added the states’ failure to provide equal



40

protection of the laws to petitioners in their right to equal 
access to public accommodations. Alabama has failed to 
provide what the Civil Rights Cases assumed the states did 
provide: “a right to enjoy equal accommodations and priv­
ileges” which this Court termed “one of the essential rights 
of the citizen which no state can interfere with.” 109 U. S. 
at 19.

This Court has recognized that failure or refusal of a 
state to act can deny the equal protection of the laws. 
Burton v. Wilmington Parking Authority, 365 U. S. 715, 
725; Terry v. Adams, 345 U. S. 461, 469; Truax v. Corrigan, 
257 U. S. 312; see Lynch v. United States, 189 F. 2d 476 
(5th Cir. 1951); Catlette v. United States, 132 F. 2d 902 
(4th Cir. 1943).

Indeed, it is questionable whether the verbal concept of 
“state action” in equal protection cases rests on more than 
a misunderstanding,43 for the phrase, no state shall deny 
equal protection, refers even more naturally to state in­
action than to state action.

Mr. Justice Woods, a member of the majority of the Civil 
Rights Cases, stated in United States v. Hall, 26 Fed. Cas. 
79, 81 (No. 15,282 1871):

Denying includes inaction as well as action, and deny­
ing the equal protection of the laws includes the omis­
sion to protect, as well as the omission to pass laws 
for protection.

His concurrence with the majority in the Civil Rights Cases 
may, therefore, be explained by his agreement with their

43 See, generally, Mr. Justice Harlan dissenting in C ivil R ights  
Cases, 109 U. S. 3, 26-62.



41

assumption that remedies against the discrimination in 
those cases existed under state law.

This indeed was a view held by some of the legislators 
concerned with the scope of the Amendment at or around 
the time of its passage. For example, Representative 
Wilson of Indiana in debates on the Enforcement Act of 
April 20, 1871, 17 Stat. 13, argued that the states were 
under an obligation to assure equality and that failure to 
do so was a denial of equal protection:

1. The provisions ‘no State shall deny’ and ‘Congress 
shall have power to enforce’ mean that equal protec­
tion shall be provided for all persons.

2. That a failure to enact the proper laws for that pur­
pose, or a failure to enforce them, is a denial of equal 
protection. (Emphasis added.)

3. That when there is such a denial Congress may enact 
laws to secure equal protection.44

Representative Lawrence in debates on the Civil Rights 
Act of 1875 stated:

What the State permits by its sanction, having the 
power to prohibit, it does in effect itself.45

Senator Pool in debates on the Enforcement Act of 
May 31, 1870, 16 Stat. 140, argued that:

. . . but to say that it shall not deny to any person the 
equal protection of the law it seems to me opens up a 
different branch of the subject. It shall not deny by 
acts of omission, by a failure to prevent its own citizens

44 Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).
45Cong. Rec., 43d Cong., 1st Sess. 412 (1874).



42

from depriving by force any of their fellow-citizens of 
these rights.46 (Emphasis added.)

This view is endorsed by the opinion in the Civil Rights 
Cases, for that decision was based on the assumption that 
the states in question would provide remedies securing 
to their citizens the right of access to places of public 
accommodation without racial discrimination:

We have discussed the question presented by the law 
on the assumption that a right to enjoy equal accom­
modations and privileges in all inns, public conveyances, 
and places of public amusement, is one of the essential 
rights of the citizen which no state can abridge or 
interfere with (109 U. S. at 19). (Emphasis added.) 

* * # * *
Can the act of a mere individual, the owner of the inn, 
the public conveyance or place of amusement, refusing 
the accommodation, be justly regarded as imposing any 
badge of slavery or servitude upon the applicant, or 
only as inflicting an ordinary civil injury, properly 
cognizable by the laws of the State, and presumably 
subject to redress by those laws until the contrary 
appears? (109 U. S. at 24). (Emphasis added.)

46 Cong. Globe, 41st Cong., 2d Sess. 3611 (1870).
Other contemporary congressmen also suggested that state in­

action may be as culpable as action: In a speech delivered by Rep­
resentative Bingham of Ohio, the framer of the key phrases in 
Section One, it was repeatedly stated that the Fourteenth Amend­
ment granted Congress the power to act on individuals and could 
provide relief against the denial of rights by the states whether by 
“acts of omission or commission.” Appendix to the Cong. Globe, 
42d Congress, 1st Sess. 85. Representative Coburn of Indiana said 
that a state could deny equal protection by failing to punish in­
dividuals violating the rights of others. Cong. Globe, 42d Congress, 
1st Sess. 459.



43

Mr. Justice Bradley’s entire opinion was concerned with 
the question whether the Fourteenth Amendment had con­
ferred on Congress the power to regulate the acts of private 
individuals when, as he presumed, the States were exercis­
ing their responsibilities toward the goal of eliminating 
racial discrimination. While he concluded in the negative, 
it is extremely doubtful that the result would have been 
the same if a state had been found to be in effect sanction­
ing private discrimination by laxity in this regard. See 
Konvitz & Leskes, A Century of Civil Rights 150 (1961); 
Abernathy, Expansion of the State Action Concept Under 
the Fourteenth Amendment, 43 Cornell L. Q. 375, 376; Hale, 
Force and the State: A Comparison of “Political” and 
“Economic” Compulsion, 35 Coluin. L. Rev. 149, 184 (1935); 
Poliak, Racial Discrimination and Judicial Integrity: A 
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1, 21 
(1959).

This case, therefore, is like Burton v. Wilmington Park­
ing Authority, 365 U. S. 715, 725:

[T]he Authority could have affirmatively required 
Eagle to discharge the responsibilities under the Four­
teenth Amendment imposed upon the private enter­
prise as a consequence of state participation. But no 
State may effectively abdicate its responsibilities by 
either ignoring them or by merely failing to discharge 
them whatever the motive may be. . . . By its inaction 
. . .  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 discrim­
ination.

For here in an area in which the State is deeply involved 
it has both positively and negatively sanctioned the racial 
segregation which gave rise to this case.



44

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 Enforcement of the State and City Segregation 
Policy and the Interference of the Police Violated 
Petitioners’ Right to Freedom of Expression.

Petitioners were engaged in the exercise of free expres­
sion, by verbal and nonverbal requests to the management 
for service, and nonverbal requests for nondiscriminatory 
lunch counter service, implicit in their continued presence 
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.” 368 U. S. at 201. The manner of petitioners’ 
expression was entirely appropriate to the time and place 
at which it occurred. Petitioners did not shout or obstruct 
the conduct of business. There were no speeches, picket 
signs, handbills or other possibly inappropriate forms of 
expression in the store. 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 pro­
tected by the Fourteenth Amendment, even though non­
verbal. 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,



45

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
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, 644, the Court balanced the 
“householders’ desire for privacy and the publisher’s right 
to distribute publications” in the particular manner in­
volved, upholding a law limiting the publishers’ right to 
solicit on a door-to-door basis. But cf. Martin v. Struthers, 
319 U. S. 141 Avliere different kinds of interests led to a 
corresponding 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, must 
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



46

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 
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. Com­
pare the cases mentioned above with N.L.R.B. v. Fansteel



47

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 oi those 
whose 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 ease 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 he 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 
Cir. 1947), cert, denied 332 U. S. 851.



48

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 Re­
quested to Leave by a Person Who Had Established 
Authority to Issue Such a Request at the Time 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 162, West 192) 
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 
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, or the police of a city with a segregation Ordi­
nance, 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



49

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. Winters v. New York, 333 U. S. 
507; Burstyn v. Wilson, 343 U. S. 495; Said v. New York, 
334 U. S. 558; Cliaplinsky 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 
that 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; Lametta 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, th a t:

“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 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.



50

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. Wriglit, 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.



51

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgments below should be reversed.

Respectfully submitted,

Leroy Clark 
W illiam T. Coleman, J r. 
Michael Meltsner 
W illiam R. Ming, J r. 
J ames M. N abrit, III 
Louis H. P ollak 

Of Counsel

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W. A dams, J r.
J. R ichmond P earson

Birmingham, Alabama

Attorneys for Petitioners







a  a



SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM , 1962.

No. 66.

JAMES GOBER, JAMES ALBERT DAVIS, ROY HUTCHINSON, 
ROBERT J. KING, ROBERT PARKER, WILLIAM W ES T, 
ROBERT D. SANDERS, ROOSEVELT WESTMORELAND, 

JESSIE WALKER, W ILLIE J. WILLIS,
Petitioners,

vs.
C ITY OF BIRMINGHAM, 

Respondent.

On W rit of Certiorari to the Court of Appeals of Alabama.

BRIEF FOR RESPONDENT.

W A TTS  E. DAVIS,
WILLIAM C. WALKER,
EARL McBEE,

600 City Hall Building, 
Birmingham, Alabama, 

Attorneys for Respondent.

Bt. Louis L aw  P rinting Co., I nc., 415 N. Eighth Street CEntral 1-4477.





INDEX.

Page
Statement ................................................................................ 1

Facts common to each case ..............................................  5

Summary of argument ..................................................

Argument ................................................................................
I. S tatutory provisions involved ..............................

II. Constitutional rights were not denied petitioners
in State Courts ........................................................
A. Constitutional objections raised by motion

to strike the complaint were properly over­
ruled by State Court ........................................

B. Demurrers filed by petitioners were properly
overruled in State Court ................................

C. Constitutional objections raised by motion to
exclude evidence were properly overruled by 
State C o u r t ..........................................................

D. State Court did not commit error in over­
ruling motion for new trial to the denial of 
petitioners’ constitutional r ig h t s ....................

III. Fourteenth Amendment not involved in this
controversy ................................................................

Conclusion ..............................................................................

6

9
9

11

11

14

10

29

33

Cases Cited.

Alabama v. Adams, Rowe & Norman, 216 Ala. 403, 113
So. 265 ............................ .................................................... 27

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 ................................  9



■



11

k

American Surety Co. v. Hooker, 36 Ala. App. 39, 58 
So. 2d 469 ......................................................................28,29

Browder v. Gayle, 142 F. Supp. 707 .................. 7,21,23,24
Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 14 
Butler v. Pennsylvania, 10 Howard 402, 414, 13 L. Ed.

472 ...................................................................................... 13
Byrum v. Pkaro, 240 Ala. 564, 200 So. 622 ..................  12

Deslandes v. Scales, 187 Ala. 25, 28, 65 So. 393 ..........  15
Dorough v. Alabama Great So. R. Co., 222 Ala. 305,

128 So. 602 ......................................................................  17

Ellis v. City of Sylacauga, 36 Ala. App. 687, 63 So.
2d 3 3 .................................................................................... 17

Ex Parte Messer, 228 Ala. 113, 152 So. 244, 245 ..........  17

Fiorella v. City of Birmingham, 35 Ala. App. 384, 48 
So. 2d 761, cert, den., 254 Ala. 515, 48 So. 2d 768, 
cert, den., 71 S. Ct. 506, 340 U. S. 942, 95 L. Ed.
680 ......................................................................................17,27

Garner v. Louisiana, 368 U. S. 157 ...............................  19
Garner v. State of Louisiana, 82 S. Ct. 248

(1961)      6,7,10,11,33
Gulf, M. & N. R. Co. v. Weldv, 8 So. 2d 249, 193 Miss.

59, 144 A. L. R. 930 ......................................................  10

Hill v. Mendenhall, 21 Wall. 453, 88 U. S. 453, 22 L. Ed.
616 .......................................................................................  20

Jackson v. City of Mobile, 33 Ala. App. 95, 30 So. 2d 40 17

Kalas v. McMahon, 36 Ala. App. 238, 54 So. 2d 322.. 14

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.............................. 9,30

Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561, 565 ........  17
Mitchell v. "Wright, C. C. A. Ala., 154 Fed. 2d 924, 926,

927, cert, den., 67 S. Ct. 96, 329 U. S. 733, 91 L. Ed.
633 .......................................................................................  20





Ill

Ohio Boll Telephone Co. v. Public Utilities Commis­
sion, 301 U. S. 292, 302, 57 S. Ct. 724, 729, 81 L. Ed.
1093 .....................................................................................  10

Smith v. State, 13 Ala. App. 411, 69 So. 406 ................  17
Snow v. Allen, 227 Ala. 615, 151 So. 468 ......................  17
Southern Indemnity A ss’n v. Hoffman, 16 Ala. App.

274, 77 So. 224 .................................................................. 15
Standard Oil Co. v. City of Marysville, Kan., 279 U. S.

582, rehearing denied, 282 U. S. 797 ..........................  22
State v. Howze, 247 Ala. 564, 25 So. 2d 433 ..............  16

Taylor v. City of Birmingham, 35 Ala. App. 133, 45 So.
2d 53 .................................................................................. 13

Union Central Life Insurance Co. v. Griffin, 232 Ala.
254, 167 So. 321 ................................................................  15

United States Fidelity and Guaranty Co. v. Town of 
Dothan, 174 Ala. 480, 56 So. 953..................................  14

Williams v. Howard Johnson, 268 F. 2d 845.......... 7,21,24
W yatt v. Birmingham, 37 Ala. App. 579, 72 So. 2d

735 .................................... .................................................28,29

Statutes and Rules Cited.

Code of Alabama, 1940:
Title 7, Section 225 ........................................................10,19
Title 7, Section 236 ....................................................6,15,16

Code of the City of Birmingham:
Section 369 .......................   6,9
Section 824 .......................................................................13,14
Section 1436 .......................................................................1,21

Rules of Practice in Supreme Court, Rule 9 (10), 
Title 7, Appendix ...........................................................28,29

Textbook Cited. 
20 Am. Jur., Sec. 799 .......................... 27





IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962.

No. 66.

JAMES GOBER, JAMES ALBERT DAVIS, ROY HUTCHINSON, 
ROBERT J. KING, ROBERT PARKER, WILLIAM W EST, 
ROBERT D. SANDERS, ROOSEVELT WESTMORELAND, 

JESSIE WALKER, W ILLIE J. WILLIS,
Petitioners,

vs.
C ITY OF BIRMINGHAM, 

Respondent.

On Writ of Certiorari to the Court of Appeals of Alabama.

BRIEF FOR RESPONDENT.

STATEMENT.
As set forth in petitioners’ statement (pp. 4, 5), the pe­

titioners were all charged and convicted below for having 
trespassed after warning in violation of a city code pro­
vision (Sec. 1436).

While a great portion of the record in each of the cases 
is consumed with details concerning the respective peti-





— 2 —

tioners going upon the premises of the various depart­
ment stores, the gravamen of the offense charged in each 
instance was that the petitioners remained on the prem­
ises described in the respective complaints after being 
warned not to do so.

Gober and Davis:

Mr. Gottlinger, Controller for Pizitz department store, 
testified (R. 21, 23) that he was present and heard Mr. 
Dick Pizitz, who was the assistant to the president of the 
store, converse with the two petitioners, Gober and Davis. 
They were told by Mr. Pizitz that they could not be 
served. One of petitioners made “a statement to the effect 
that we should call the police” (ibid); they did not leave 
when Mr. Pizitz asked them to leave (R. 23) and “re­
mained until the officers came” (R. 24).

Detective C. L. Pierce testified for the City that he had 
a conversation with Davis and Gober the day following 
their arrest (R. 28). He testified he was told by one of 
the petitioners that both of them had attended a meeting 
at Rev. Shuttlesworth’s house; that “volunteers were 
asked for and both Davis and Gober said they volunteered 
to participate in the sit-down demonstration and that they 
were assigned stores to go to at a certain time and they 
said they did agree” (R. 40). Both vo1 mteered and were 
assigned to go to Pizitz; and that they remained there 
until the officers arrested them (ibid); that they “made 
no effort and did not intend to leave until they were ar­
rested, and that the purpose of that thing was to stay 
there until they were arrested. And they stated when they 
sat down they were denied service there and asked to 
leave” (ibid).

Police Officer Martin was told by a superior officer to 
go to Pizitz store because of a disturbance there (R. 20).





—  3 —

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 (R. 20).

Petitioners did not ask the identity of the person who 
told them to leave (R. 45).

Hutchinson and King:

Officer Martin received a call to go to Loveman’s de­
partment store (R. 107). On arrival he noticed a rope 
had been tied from one post to another post at the eating 
place with a sign on it “ stating closed”  (ibid). He was 
told by Officer J . L. Holt to go with him to Loveman’s 
(ibid). Someone from Loveman’s informed his superior 
officers that the two boys had been told to leave (R. 108).

A disturbance was caused because the two Negroes were 
sitting there (R. 113).

On three occasions the store detective announced within 
three feet of the petitioners that the place was closed. 
The manager of the cafeteria hung a sign up indicating 
“ the place was closed”  (R. 117). The petitioners re­
mained until the police arrived, which was about five 
minutes later (ibid). The petitioners remained seated and 
all of the white people got up and left (R. 118).

Parker and West:

Mrs. Gibbs, store detective at Newberry’s, identified her­
self to these two petitioners and “ told them they would 
have to leave (R. 162). They said they were not leaving, 
that they were not violating any law ”  (R. 163).

Mr. Stallings, assistant store manager, told the peti­
tioners, “ You know you can’t do th is”  (R. 164). One of 
them said, “ Well, we have our rig h ts”  (ibid). The peti­
tioners kept sitting there (ibid).





— 4 —

Sanders and Westmoreland:

Officer Caldwell testified for the City that he had orders 
or received a call to go to Kress on the morning of March 
31, 1960 (R. 209). He observed that the lunch room was 
closed and that the lights were out (ibid); he observed 
Westmoreland and Sanders “ sitting there”  (ib id); the 
manager of the lunch counter told the officer he had 
turned the lights out and closed the counter, and “ that 
they couldn’t he served”  (ibid).

The manager of the luncheon counter approached the 
two petitioners and informed the boys that the place was 
closed; he put up a closed sign and told them, “ we 
couldn’t serve them and they would have to leave”  (R. 
211). The hoys moved to another bay or area of the 
luncheon counter (ibid). He approached them again and 
said, “ Boys, you will have to leave * • * the bay is 
closed. We are closing”  (R. 212). One of the boys said, 
“ Well, we have our righ ts.”

The luncheon counter manager summoned the manager 
of the store, who “ asked them to leave the store”  (ibid).

Walker and Willis:

Officer Casey received a call over his radio to go to 
W oolworth’s store (R, 252). He contacted Mrs. Evans, 
the manager of the lunch room counter (ibid) and she 
stated she “ had told the hoys to leave, that the place was 
closed” , and a second time-she directed her conversation 
to the defendants and “ told them it was closed and that 
they would have to leave, she would not serve them ”  (R. 
252, 253).

The officer “ took the complaint from Mrs. Evans that 
she wanted the hoys out of the store, that the lunch room 
was closed,”  and arrested them (ihid).





— . )  —

FACTS COMMON TO EACH CASE.

Petitioners, under this topical heading of their brief, 
paragraph three (p. 15), charge that “ it appears”  that 
petitioners were arrested without the request of any agent 
of the stores.

It might be noted at this point that no issue was raised 
by petitioners’ pleadings as to how the arrests were ini­
tiated. The plea of the defendants was “ not guilty”  (see 
Gober-Davis, R. 10). Since the manner of the arrest was 
not in issue in the controversy under the pleadings, the 
respondent here was neither called upon nor prepared to 
negative this matter, which is raised for the first time in 
the entire proceedings before this Court.

In paragraph four, petitioners state that there is no 
evidence “ that the person requesting petitioners to leave 
the lunch area identified himself” . This, too, was not 
an issue in the trial below for the reason stated immedi­
ately above.

W hat, in fact, the petitioners are' proposing in both 
paragraph three and four is that this Court substitute 
itself for the trial court and permit the petitioners to 
re-try the case under a different set of pleadings and 
issues. The m atters complained of here were not injected 
into the trial below, nor was any assignment of error in 
the state appellate court predicated upon the propositions 
now asserted by petitioners.

I





SUMMARY OF ARGUMENT.

I.

Petitioners cannot retry  their cases before this Court.

The only issue before the state trial court was whether 
or not the petitioners had trespassed as charged in the 
complaint filed by the respondent. Petitioners’ motions 
to strike the complaint were held to be inapplicable. The 
demurrers filed in each case were overruled on the basis 
that each of same was too general in nature, as prohibited 
by Section 236 of Title 7, Code of Alabama, 1940. Those 
grounds assigning Constitutional questions were ruled to 
be speaking demurrers. Evidence was then taken on the 
issue of whether or not petitioners had committed the 
trespass as charged.

The alleged Section 369 of respondent’s Code, which 
purports to require restaurant operators to construct 
certain partitions and entrances, was in no way involved 
in the controversy as charged by petitioners. Petitioners 
did not request the court to take judicial notice of any such 
ordinance, no such ordinance was identified by petitioners, 
no such ordinance was introduced in evidence, no excep­
tion was taken to the ruling of the trial court preventing 
an employee of a store from testifying as to whether he 
had knowledge of the ordinance, and no assignment of 
error before the state appellate court in any way related 
to the existence of such alleged ordinance. Nothing in 
the pleadings before the trial court raised any issue rele­
vant to the alleged ordinance. As noted in Garner v. 
State of Louisiana, 82 S. Ct. 248, Mr. Chief Justice W arren 
emphasized that the taking of judicial notice of the ordi­
nance would be “ to turn the doctrine into a pretext for 
dispensing with a tria l.”  To rule otherwise would place 
a burden upon the trial court of acting as counsel for the

— 6 —



■



person in whose favor an ordinance might operate, by 
causing it to be alert at all times to all laws and ordinances 
and to invoke them on any occasion where same might be 
of benefit to parties in litigation.

n.
The pleadings filed by petitioners in the cases before the 

court here, as heretofore outlined, were properly due to 
be overruled under both the applicable sections of the 
Alabama Code and the decisions of A labam a’s Supreme 
Court interpreting the statutes.

Upon completion of the evidence in each of the cases, 
petitioners filed similar motions to exclude the evidence. 
None of the grounds of the motions to exclude the evi­
dence attacked the sufficiency of the evidence, but instead 
dealt with the propositions that the various stores in­
volved were public property or operated by the public; 
that thereby the stores became an arm of the state and 
therefore, as such, could not partially segregate them­
selves. The Alabama Court of Appeals ruled that, under 
Browder v. Gayle, 142 F. Supp. 707, the Fourteenth 
Amendment guaranteed the stores this right, and fu rther 
noted that Williams v. Howard Johnson, 268 F. 2d 845, 
was authority for the fact that the stores could deny their 
eating facilities to members of the Negro race, where the 
restaurant was not a part of interstate commerce.

The petitioners emphasized repeatedly in their motions 
to exclude the evidence that racial discrimination “ was 
in accordance with a policy, custom and usage”  of thp 
various stores.

Your respondent submits that in keeping with admis­
sions of petitioners and the issues in controversy as estab­
lished by the pleadings, the trial court was not in error 
in its conviction of petitioners.





—  8  —

Counsel for the petitioners conceded that the only issue 
involved was whether “ some trespass after w arning”  had 
been committed (R. 25, 26).

m ,

Respondent submits that no Constitutional rights were 
denied to petitioners by the state court. The Fourteenth 
Amendment does not reach to demonstrations conducted 
on private property over the objection of the owner, as 
noted by Mr. Justice Harlan in Gamer, supra.

The actions of the petitioners in the various stores did 
not encompass the question of free speech. Their actions, 
as shown by the record, clearly indicate that they sought 
only one objective, namely, that of being arrested in order 
to precipitate litigation over the question of the custom 
and policy of the various stores. The privilege of resort 
to litigation was fully accorded petitioners.

I





ARGUMENT.

L

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.

The alleged ordinance requires a restaurant operator to 
maintain certain partitions and entrances for white and 
colored persons in eating establishments (pp. 2, 10 ).

Assuming such to be 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 
i t 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 decision of 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.

The record before this Court clearly shows that peti­
tioners have never placed in issue before the state courts 
the m atter of any such ordinance requiring separation 
of the races, nor addressed themselves to the question in 
any manner before the state appellate court.

Petitioners argue here, but never below, that an Ala­
bama statute requires that ordinances of the City of Bir-





—  1 0  —

mingham bo judicially recognized (p. 23*). Respondent 
agrees that its ordinances are judicially noticeable, but 
only in appropriate instances.

Bearing in mind that judicial notice is a rule of evi­
dence rather than a rule of pleading, Gulf, M. & N. R. Co. 
v. Weldy, 8 So. 2d 249, 193 Miss. 59, 144 A. L. R. 930, the 
suggested ordinance, to have served some defensive pur­
pose (see Code of Alabama (1940), Title 7, Section 225) 
would of necessity have had to be incorporated into a 
plea or answer to the complaint. If  then, after the sup­
posed ordinance was properly made an issue in the trial 
below petitioners sought judicial notice by the Court, 
rules of evidence making it unnecessary to prove by evi­
dence the existence of such an ordinance, would have been 
entirely applicable. The record before the Court clearly 
demonstrates, of course, that petitioners did not place tho 
question of such ordinance before the lower court, nor 
was any assignment of error directed to the proposition 
before the state appellate court (R. 41, 42).

This question is not a new one for this Court. In the 
recent case of Garner v. State of Louisiana, 82 S. Ct. 248 
(1961), Mr. Chief Justice W arren, 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 tr ia l’ ” , 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 in­
herent danger of a court taking upon itself the preroga­
tive of unsolicited judicial notice in the absence of in­
serting 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.”





— II —

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 made any reference whatever 
to the existence of such an ordinance, thereby affording 
the state appellate court an opportunity to rule on any 
question relating to the validity of the ordinance, your 
respondent respectfully urges that no constitutional or 
other questions dependent upon such an ordinance are 
properly before this Court for review. To rule otherwise 
would completely dispense with the need for filing plead­
ings since the Court would be required, under petitioners’ 
theory, to at all times be alert to every ordinance of the 
City of Birmingham and to place them in issue whenever 
same might be applicable, thereby placing the burden 
upon the Court to, in effect act as counsel for the person 
in whose favor the ordinance might operate.

II.

CONSTITUTIONAL RIGHTS W ERE NOT DENIED 
PETITIONERS IN STATE COURTS.

A. Constitutional Objections Raised by Motion to Strike 
the Complaint Were Properly Overruled by State Court.

The sole question in the instant case is whether the 
state court erred so as to deprive the petitioners of certain 
of their Constitutional rights. The petitioners filed ex­
tensive pleadings in the state court, stating in detail the 
Constitutional questions which they contended were at 
issue in the case. The pleadings in each case were similar, 
with one exception.1 The overruling of all of the plead-

1 No written motions to exclude the evidence were filed on behalf 
of William West. Roosevelt Westmoreland and Willie J. Willis.





12 —

ings filed by petitioners, by the trial court, constituted 
the first four of the five errors assigned by petitioners 
to the Alabama Court of Appeals (R. 56, 87, 123, 142, 177, 
192, 219, 234, 261, 276). The fifth error assigned dealt 
with the admissibility of evidence and in no way dealt 
with a Constitutional question. As noted in the opinion 
of the lower court (see Gober case, R. 64, last paragraph), 
petitioners did not argue this assignment of error (5), 
and consideration of same was therefore preterm itted by 
the state court of appeals.

Petitioners’ pleadings consisted of a motion to strike 
the complaint (R. 3, 74, 94, 130, 146, 184, 196, 226, 238,
268) ; demurrer (R. 4, 75, 95, 131, 147, 185, 197, 227, 239,
269) ; motion to exclude the evidence (R. 6, 77, 97, 133, 148, 
199, 241) [no motion to exclude the evidence was filed on 
behalf of William W est, Roosevelt Westmoreland and

1 Willie J . W illis]; and, motion for new trial (R. 12, 83, 
103, 139, 154, 189, 205, 231, 247, 273).

The motion to strike contains six grounds, numbered 1 
through 6 , in support of the motion. The overruling of 
the motion was assigned as error 1 by petitioners on 
appeal in the state court. Grounds 3, 4 and 5 are the only 
grounds which endeavored to raise Constitutional points. 
Ground 3 says, in substance, tha t the trespass after warn­
ing ordinance of the City of Birmingham is “ an abridge­
ment of the freedom of assembly, speech and liberties
• * t

Foregoing for the moment the fact that a motion to 
strike is not a proper method of testing the validity or 

j| legal sufficiency of the C ity’s complaint, Taylor v. City of 
Birmingham, 35 Ala. App. 133, 45 So. 2d 53; Byrum v. 
Pharo, 240 Ala. 564, 200 So. 622, the Constitutional point 
raised is hardly well taken.

This Court, in Butler v. Pennsylvania, 10 Howard 402, 
414, 13 L. Ed. 472, stated, “ Accordingly it has been repeat-



.



— 13 —

edly said by this court tha t to pronounce a law of one of 
^the sovereign states of this union to be a violation of the 
^constitution is a solemn function, demanding the gravest 

and most deliberate consideration; and that a law of one 
of the states should never be denominated if it can upon 
any other principle be correctly explained.”

Since the Fourteenth Amendment protects one in his 
ownership of property, it hardly seems consistent for peti­
tioners to argue that a state or a municipal body politic 
is doing an unconstitutional act when it affords one a 
local remedy for the protection of his property. Peti­
tioners’ argument that the trespass ordinance violates 
free speech protection afforded by the Fourteenth Amend­
ment would strike down all laws having to do with 
holding one for ransom, extortion, blackmail, bad checks, 

kplus an abundance of other offenses. Their argument as 
to free assembly, if sustained, would make lawful all riots, 
all conspiracies to commit a crime, and all crimes com­
mitted wherein more than one person participates, since 
each requires an assembly of persons. Such a contention 
as urged here by petitioners could well lead to endless 
absurdities as well as a condition of complete chaos.

Ground 4 of the motion to strike contends that the 
trespass ordinance “ as applied to the defendant, consti­
tutes an abridgement of privileges and immunities guar­
anteed defendant”  in violation of the Fourteenth Amend­
ment.

The motion to strike does not specify the “ privileges 
J^and immunities”  contemplated, and respondent does not 

deem it appropriate to enter upon conjecture on the sub­
ject.

Ground No. 5 of the motion to strike asserts that Sec­
tion 824 of respondent’s code “ as applied to this defend­
ant, a Negro citizen of the United States, constitutes a





— 14 —

denial of due process and equal protection of the law ”  
in violation of the Fourteenth Amendment. Section 824 
of the City Code deals with aiding, abetting or inciting 
another to violate a law or ordinance of the City, and is 
in no way involved in the instant case involving trespass.

B. Demurrers Filed by Petitioners Were Properly Over­
ruled in State Court.

Petitioners filed a similar demurrer in each case, each 
containing eight grounds. The demurrer in each case was 
overruled and the overruling of same was assigned as 
error 2 in each case on appeal to the Alabama Court of 
Appeals (see Gober, R. 56).

Only grounds numbered 4, 5, 6, 7 and 8 endeavored to 
raise federal Constitutional questions.

Ground 4 of the demurrers says, in substance, that the 
trespass ordinance “ as applied to this defendant is in­
valid”  and violates the F irst and Fourteenth Amendments 
to the Constitution of the United States; ground 5 says 
the same ordinance “ as applied to this defendant”  de­
prived petitioner of free speech and free assembly. These 
grounds raise the identical points raised by petitioners' 
motion to strike the complaint in grounds 3 and 4 re­
spectively, which have already been discussed, except tha t 
in demurrers petitioners say that the trespass ordinance 
is defective “ as applied to this defendant.”

It necessarily follows that since the ordinance did not 
show on its face its unconstitutional effect, if any, upon 
“ this defendant” , the dem urrer became a speaking de­
murrer, and thereby due to be overruled by the trial court. 
Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419; 
Kalas v. McMahon, 36 Ala. App. 238, 54 So. 2d 322; United 
States Fidelity and Guaranty Co. v. Town of Dothan, 174 
Ala. 480, 56 So. 953.





— 15 —

Ground 6 of the demurrers says the ordinance set forth 
in the C ity’s complaint “ as applied to this defendant”  
deprived him of due process because “ * • * it is so vague 
• * groun(j 7 Gf the demurrers urges that “ as applied 
to this defendant”  the ordinance is an abridgement of 
privileges and immunities protected by the Fourteenth 
Amendment. Neither ground 6 nor 7, or any other ground 
of the demurrers for that matter, purported to enlighten 
the court as to how the ordinance on its face deprived 
petitioners of their Constitutional guaranties. Ground 8 
asserted that the trespass ordinance denied equal protec­
tion “ as applied to this defendant” , and was due to he 
overruled as a speaking demurrer.

By way of summary, the Constitutional defects in the 
trespass ordinance are asserted to be that the ordinance 
“ violates”  the Fourteenth Amendment (ground 4); that 
it abridges free speech and assembly (ground 5); that the 
ordinance is unconstitutionally vague (ground 6 ); that it 
constitutes an “ abridgement of privileges and immunities”  
(ground 7); and that the ordinance deprives the defendant 
of due process (ground 8 ).

The Code of Alabama 1940, Section 236 of Title 7, states 
that, “ No dem urrer in pleading can be allowed except as 
to matters of substance, which the party  demurring spe­
cifies (emphasis supplied); and no objection can be taken 
or allowed which is not distinctly stated in the dem urrer.”  
The foregoing code section has been uniformly held to be 
one “ designed to prevent vague and indefinite grounds 
of dem urrer” . “ The Supreme Court has long maintained 
and enforced a very strict observance of the rule an­
nounced in this section.”  Deslandes v. Scales, 187 Ala. 
25, 28, 65 So. 393; Union Central Life Insurance Co. v. 
Grifim, 232 Ala. 254, 167 So. 321; Southern Indemnity 
Ass’n v. Hoffman, 36 Ala. App. 274, 77 So. 224.





— 16 —

State v. Howze, 247 Ala. 564, 25 So. 2d 433, states that 
“ this (Code) section does away with a general demurrer 
at law .”

The dem urrers make not the slightest pretense at re­
vealing how the ordinance in question denied Constitu­
tional guaranties to the petitioners. Notwithstanding that 
general dem urrers are not sustainable under Alabama law, 
it is difficult to appreciate petitioners’ theory that one 
may use the premises of another as an arena for a public 
pronouncement of his cause, over the protest of the owner. 
The trespass ordinance is in no way concerned with the 
righ t to assemble or to speak freely, any more so than 
are laws th a t punish riots and unlawful conspiracies. 
Likewise, nothing on the face of the ordinance tends in 
any m anner to indicate that one accused of its violation 
will be deprived of due process or equal protection. If 
such be a fact, petitioners did not see fit to specify the 
matter of substance in the ordinance which deprived them 
of their Constitutional guaranties as required by Title 7, 
Section 236, Code of Alabama, 1940.

C. Constitutional Objections Raised by Motion to Ex­
clude Evidence Were Properly Overruled by State Court.

Following the overruling by the trial court of petition­
e rs’ dem urrers in each case, evidence was heard, and upon 
the completion of same petitioner filed similar written mo­
tions to exclude the evidence (see Gober, R. 6 ) in each 
case except tha t of William West, Roosevelt W estmore­
land and Willie J . Willis. The motions were overruled 
in each of the cases filed, and the overruling of same was 
assigned as error to the state appellate court as ground 3 .

Of course, the first question to be determined is whether 
a motion to exclude the evidence is reviewable on appeal 
to the Alabama Appellate Court.





— 17 —

“ I t  is well settled that the rules and principles of the 
law of evidence applicable to civil proceedings are ap- 

1 plicable to quasi criminal proceedings.”  Ex Parte  Messer, 
228 Ala. 113, 152 So. 244, 245; Smith v. State, 13 Ala. App. 
411, 69 So. 406.

It is uniformly held in Alabama that ‘‘an appeal from 
a conviction for violation of a city ordinance is quasi 
criminal, and subject to the rules governing civil appeals. 
Fiorella v. City of Birmingham, 35 Ala. App. 384, 48 So. 
2d 761; cert, den., 254 Ala. 515, 48 So. 2d 768; cert den., 
71 S. Ct. 506, 340 U. S. 942, 95 L. Ed. 680; Ellis v. City 
of Sylacauga, 36 Ala. App. 687, 63 So. 2d 33; Jackson v. 
City of Mobile, 33 Ala. App. 95, 30 So. 2d 40.

It has also been uniformly ruled in Alabama that, “ In 
civil cases, such a motion (to exclude the evidence) has 

I been condemned by this Court in so many cases here de­
cided that we deem it unnecessary to collate same. The 
trial court will not be reversed for refusing such a mo­
tion.”  Snow v. Allen, 227 Ala. 615, 151 So. 468; Dorough 
v. Alabama Great So. R. Co., 222 Ala. 305, 128 So. 602. 
Motion for the affirmative charge is the “ proper method 
and the motion to exclude the evidence * * * is inappro­
priate in a civil case as this court has held many tim es” . 
Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561,.565.

I t cannot but be apparent from the foregoing decisions 
that on appeal from the C ity’s Recorders Court to the 
Circuit Court the sit-down cases were quasi-criminal; that 
they were subject to civil rules as distinguished from 
criminal rules; and, a motion to exclude the evidence is 

* not the proper method to attack the evidence, but, to the 
contrary, a motion for the affirmative charge is the only 
means by which the evidence or lack of evidence may be 
impugned on appeal to the s ta te ’s appellate courts.

Your respondent feels it worthy of this C ourt’s atten­
tion to note that the so-called “ motion (s) to exclude the





— 18

evidence”  are not in fact what their title would indicate. 
They do not move the court to afford petitioners any 
relief whatever; they seek no action or remedy from the 
court. They contain simply a documentation of supposed 
law and fact, and never once suggest that the evidence 
is not sufficient to sustain the verdict, assuming, for the 
sake of argument, these to be proper cases for the filing 
of such a motion.

Assuming for the moment that a motion to exclude the 
evidence has not been condemned in so many Alabama 
decisions tha t the Alabama Supreme Court “ deem(s) it 
unnecessary to collate same” , what, if any, merit is found 
in the motion?

The first ground attacks the “ com plaint”  (see Gober, 
R. 6), and not the evidence, by stating the complaint “ is 
invalid”  (ibid). Only a demurrer could serve this func­
tion.

Ground 2 asserts substantially that the evidence offered 
against the defendant established that defendant was “ in 
peaceful exercise of Constitutional rights to assemble 
with others for the purpose of speaking and protesting 
against the practice, custom and usage of racial discrim­
ination in P iz itz” 2 (R. 7).

The petitioners contend in this ground that they may 
assemble upon the premises of another over his protest 
for purposes of making known their dislike of the owner’s 
racial policy. Your respondent sees little legal merit in 
the fact that the property owner’s racial policy may be 
the subject of petitioners’ distaste. While the subject of 
racial discrimination in many areas has great emotional 
appeal, your respondent does not feel that a cause with

2 In the motion to exclude the evidence in the Gober case (R. 6. 
7, 8), '•Pizitz" department store is charged with exercising ra­
cially discriminatory practices. The names of the different stores 
involved are substituted in the remaining cases.





considerable appeal justifies a trespass any more than one 
with little or no appeal. As was pointed out by Mr. Ju s­
tice Harlan, in Garner v. Louisiana, 368 U. S. 157, “ This 
is not to say, of course, that the Fourteenth Amendment 
reaches to demonstrations conducted on private property 
over the objection of the owner (as in Briscoe) just as it 
would not encompass verbal expression in a private home 
if the owner has not consented.”

However, notwithstanding the merits or demerits of the 
foregoing proposition, this ground of the motion to ex­
clude the evidence in no way attacks the sufficiency of 
the evidence, nor does it relate to any m atter defined 
within the pleadings of the instant case.

Ground 3 of the motion to exclude the evidence, in brief, 
states that the defendant and others sought to protest 
“ in public places the refusal of the preponderant number 
of stores, facilities and accommodations open to the public 
in Birmingham, Alabama to permit defendant, a Negro” , 
to enjoy access to said stores as afforded members of other 
races; also, that prosecuting witnesses and arresting of­
ficers were attem pting to enforce this discriminatory 
policy of the stores (R. 7).

It must be remembered that petitioners filed no special 
plea to the complaint filed by the City. The Alabama Code 
of 1940, 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 spe­
cially the matter of defense” (Emphasis supplied). A 
search of the record will reveal that no plea was filed by 
petitioners setting forth any m atter of defense as perm it­
ted by the foregoing section of the state code. The issue 
in each case, in the absence of a plea, became a simple 
denial. Petitioners, for reasons best known to them, 
elected not to have the issues framed along the line of





—  2 0  —

state action or other Constitutional grounds now urged 
before this Court. State action, not being an issue de­
fined by the pleadings in the case, could net be a proper 
ground upon which to attack the sufficiency of the evi­
dence either in a motion for the affirmative charge, or a 
motion to exclude the evidence when filed under appro­
priate circumstances. I t is fundamental that the issues 
to he tried by a court are those which the pleadings leave 
in dispute. As noted in Mitchell v. Wright, C. C. A. Ala., 
154 Fed. 2d 924, 926, 927, cert, den., 67 S. Ct. 96, 329 U. S. 
733, 91 L. Ed. 633, the court stated, “ The office of plead­
ing is to inform the court and the parties of the facts in 
issue; the court, that it may declare the law; and the 
parties, that they may know what to meet by their proof.”  
This principle is laid down in keeping with the decision 
of this Court in Hill v. Mende: .all, 21 Wall. 453, 88 U. S. 
453, 22 L. Ed. 616.

In the instant cases the only issue in dispute before the 
trial court was whether or not the defendant below had 
committed the act charged in the complaint. A fter the 
evidence was fully presented, there still was no other 
issue before the court. The plaintiff under the state of 
pleadings in the trial court, could not conceivably have 
been called upon to anticipate and negative by proof all 
of the matters which defendants below might subsequently 
raise in the nature of a defense to the complaint charged. 
Petitioners had every opportunity to formulate the issues 
to be tried. This privilege was exclusively theirs and it 
must he assumed they exercised it after due deliberation. 
Petitioners were represented by five able counsel who 
were particularly expert in m atters akin to those in the 
instant cases. If their choice of issues was unwise, and 
it is not suggested that it was, the responsibility can 
hardly he laid upon the state court.

In any event, the respondent claims no responsibility 
for the discriminatory practices of the “ preponderant



■

'



number of stores * * *”  (R. 7) situated in its City; nor, 
was the City required (or prepared) under the pleadings 
to substantiate by affirmative evidence that this was true 
or that the action of its police officers was in response 
to information received by telephone or otherwise, from 
persons witnessing the offenses.

Ground 4 of the motion to exclude the evidence (R. 7, 
8), similarly to most other grounds set forth in same, re­
iterates that the complaint filed by respondent charges 
the defendant with “ trespass upon land after being for­
bidden to en ter” , and neglects to note that the trespass 
after warning feature of the ordinance is the gravamen of 
the offense, as a most casual review of the record will re­
veal. W hat is hoped to be gained by petitioners in this 
respect is not known, but your respondent deems it useful 
to note.

This ground (R. 7, 8), as many others likewise do, 
points out that “Pizitz” had a “racially discriminatory 
practice”, and that “under color of law” the defendant 
was arrested “to enforce this racially discriminatory 
policy” in violation of the Fourteenth Amendment.

W hether Pizitz had a right to consider racial involve­
ments in its policy has been previously decided affirma­
tively in Browder v. Gayle, 142 F. Supp. 707; and in 
Williams v. Howard Johnson, 268 F. 2d 845, unless it be 
established that the eating facility was one engaged in 
interstate commerce.

As to the proposition of the City acting under “ color 
of law” , it appears to your respondent that Section 1436 
of respondent’s Code has not been shown by the record 
to be other than a duly adopted law of the respondent 
eitv.

As to the proposition that the arrest was made to assist 
Pizitz in its racial policy, from aught that appears in the





record in these cases the respondent endeavors to enforce 
its trespass ordinance whether or not it may in some 
instances coincide with the policy of certain stores.

Ground 5 of the motion (R. 8) states that the trespass 
ordinance “ is unconstitutional on its face by making it a 
crime to be on public property (emphasis supplied) after 
being asked to leave”  at the whim of some individual 
“ in that said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise defendant 
of the validity of the demand to leave * *

Respondent suspects that petitioners are aware tha t the 
record is barren of any evidence that the stores involved 
were property belonging to the “ public” .

I t  needs not repeating tha t an attack upon what appears 
on the face of the ordinance, should properly be served 
hv appropriate demurrer addressed to the complaint.

I t  would appear that the only “ document”  which might 
meet petitioners’ criterion for sufficiently apprising a 
trespasser of a valid demand to leave would be an ab­
stract of title to the land involved, in addition to a copy 
of the contract between the owner or lessee of the prop­
erty and his agents or officials. Your respondent feels 
that this is a m atter properly lying within the discretion 
of the legislative body enacting the ordinance. In Stand­
ard Oil Co. v. City of Marysville, Kan., 279 U. S. 582, 
rehearing denied, 282 U. S. 797, this Court stated: “ Where 
legislative action is within scope of the police power, 
fairly debatable questions as to its reasonableness, wisdom 
and propriety are not for the determination of courts, hut 
for that of the legislative body on which rests the duty 
and responsibility of decision.”

I t  might well he argued, if a person other than an agent 
or official of the store involved had in fact made the re-





- 2 3 -

quest to leave, that the ordinance had not been violated;
, but petitioners make no such contention, and this, pre-
* sumably, because in each case the evidence was clear that-

an official of the store, and not some stranger with a 
“ whim” , made the request.

Ground 6 of the motion simply states that the trespass 
ordinance (Section 1436) is unconstitutional because “ it 
makes it a crime to be on property open to the public after 
being asked to leave, because of race or color.”

The state appellate court’s opinion (R. 64) states, “ 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 w ill” ; also, 
“ As stated in M artin v. Struthers, 319 U. S. 147, 63 S. Ct. 
862, 87 L. Ed. 1313: ‘Traditionally the American law 

H punishes persons who enter onto the property of another 
after having been warned to keep off.’ ”

The state appellate court cited Browder v. Gayle, 142
F. Supp. 707, wherein the court said with reference to the 
right of one to decide with whom he wished to do business, 
“ Indeed we think that such liberty is guaranteed by the 
due process of that (14th) Amendment.”

Are not the petitioners now saying that the shoe has 
shifted to the other foot? Are they not saying that prop­
erty owners have a choice of electing to do business with 
members of the Negro race, but that property owners have 
no right to elect not to do business with them? Petitioners’ 
position on the subject is simply that if the property 

^  owners’ election meets petitioners’ approval, the election 
is valid under the Constitution; but if the election of the 
property owners meets with their disapproval, then it 
becomes an abuse of the Constitution.

Petitioners go further and say, in substance, that prop­
erty owners cannot do some business with them and then





elect to refrain from doing other business with them. 
Your respondent urges that this entire m atter is just that 
simple. Petitioners say deal with us all the way or not 
at all. Of course, petitioners may conduct their economic 
affairs in this fashion if they see fit to do so, and in fact 
are at the present time to a great extent doing exactly 
that in the respondent city. The Fourteenth Amendment 
requires that they have this liberty, but by the same token 
the business owner is entitled to the free exercise of the 
same choice, or any modification of same, he desires. To 
contend, as do petitioners, that his business is in a public 
place, can in no way take away his Constitutional guar­
anties, though it is not exactly clear to respondent what 
petitioners mean by the term “ public place” . Certainly 
it is not public property as petitioners have earlier as­
serted; a t least the record nowhere reveals that the public 
purchased or paid for the property, or claims any right 
of control over it, other than routine police powers and 
the exaction of taxes through various forms.

Based upon Browder v. Gayle, supra, Williams v. How­
ard Johnson, supra, and freedom of the right to contract 
protected by the F ifth  and Fourteenth Amendments to 
the Constitution, your respondent submits that the store 
owners could contract with petitioners on whatever basis 
was conductive to the culmination of an accord between 
the two of them.

Ground 7 of the motion to exclude the evidence (R. 8) 
says that defendant was a member of the public attem pt­
ing to use “ a publicly owned facility (emphasis supplied), 
to-wit: Pizitz * * “ that such denial was in accordance 
with a policy, custom and usage of Pizitz (emphasis sup­
plied) of operating such facilities and services on a ra ­
cially segregated basis, which policy, custom and usage 
violates the due process and equal protection clauses





— 25

Petitioners repeat in this ground of their motion to ex­
clude the evidence, as they have done over and over, that 
their denial of Constitutional protection “ was in accord­
ance w ith a policy, custom and usage of P izitz”  (empha­
sis supplied), or such other store as might he involved 
in each of the respective cases here.

The Fourteenth Amendment bars state action, not “ Pi- 
zitz”  action, nor privately owned store action. It is, by 
the repeated assertion of counsel for petitioners in the 
state court, the policy and custom of the stores that have 
offended them. Under the state of the pleadings before 
the state court and the evidence adduced, plus the re­
peated admission of counsel for petitioners that it was 
Pizitz’ custom or policy, or that of other stores, which 
denied petitioners their Constitutional rights, was there 

| anything in the record before the state court which made 
it mandatory upon it to conclude that state action was the 
compelling force in the enforcement of the C ity’s ordi­
nance!

The sole reference to state action prior to completing 
the evidence in each of the cases, occurred in the Gober 
and Davis cases. Counsel for James Gober and James 
Albert Davis, in cross-examining an employee of Pizitz 
who had previously testified (R. 24) that Mr. Pizitz, in 
addressing the two defendants, had “ used the term ‘we 
cannot serve you here,’ ”  asked the employee if he “ as- 
sume(d) that he meant it was against the law.”  The 
employee answered, “ I assumed (emphasis supplied) th a t” 
(ibid). Then counsel for defendants asked if the witness 

|  knew “ of his own knowledge that there is such a regula­
tion of the City of Birmingham.”  Whereupon, counsel 
for the City objected (ibid). The court inquired, “ Would 
any witness’ knowledge of the law be m aterial?”  (ibid). 
Counsel for the two defendants then informed the court 
that “ our theory of this case (is) it is one based simply





—  26 —

on the segregation ordinance * * *”  (ibid), and subse­
quently remarked that from the witness’ answer, “ It 
seems it is predicated on the segregation ordinance of the 
City of Birmingham rather than on the trespass’’ (R. 25). 
Then counsel for the two defendants addressed the court 
as follows: “ If  your honor pleases, may I say this. W e 
are not arguing with the court. What I say (is) unless 
Mr. Pizitz had ordered these men out of the restaurant 
facilities they would not have been arrested and could not 
have been under the statu te”  (R. 25). At this point the 
record reads:

“ The Court: Is there any divergence between you 
and the City on that theory ?

Mr. Hall: I  don’t know, sir.
The Court: Unless they failed to comply with some 

trespass, some trespass after warning. Isn ’t that what 
it is?

Mr. Hall: I  suppose so.
The Court: Is that the issue. Is that the thing 

wThich is germane?
Mr. Hall: I t certainly is, your Honor”  (R. 25, 26).

The trial court ruled again upon another question to 
the same witness regarding his being aware of a segrega­
tion ordinance, saying, “ I don’t believe the witness' 
knowledge of the law is competent” ; and counsel with­
drew the question (R. 26).

W hat provisions the ordinance contained was not put 
in the record; no effort was made on the part of counsel 
to identify the ordinance he had in mind; counsel for pe­
titioners had not made an issue of the ordinance by any 
pleading; he did not seek to introduce a copy of the ordi­
nance in evidence; he did not ask the court to take judicial 
notice of whatever ordinance he had in mind. The trial 
court would have been remiss had it permitted a witness





— 27 —

to testify as to whether he was familiar with some city 
ordinance or had knowledge on the subject.

20 Am. Jur., Sec. 799, supported by abundant citation 
of authority, states: “ It may be laid down as a general 
rule that a witness is never permitted to give his opinion 
on a question of law or upon matters which involve a 
question of law. This rule is applicable to both expert and 
non-expert witnesses.”  See, also, Alabama v. Adams, 
Rowe & Norman, 216 Ala. 403, 113 So. 265; Fionella v. 
City of Birmingham, 35 Ala. App. 384, 48 So. 2d 761; cert, 
den., 254 Ala. 515, 48 So. 2d 768, cert, den., 340 U. S. 942.

Respondent submits that the effort of petitioners in the 
Gober and Davis cases to elicit information from an em­
ployee of a store concerning some unidentified ordinance, 
without reserving an exception to the trial court’s sustain­
ing objection to same, plus brief comment of counsel about 
a theory based upon same, falls considerably short of hav­
ing properly made out a case of “state action’’ which de­
prived these two petitioners of their privileges under the 
Federal Constitution.

Ground 8 of the motion to exclude the evidence (R. 9) 
says in essence that if Pizitz and other like facilities 
were to cease doing business, its services “would have to , 
be provided by the state”, and therefore Pizitz may not 
segregate its store.

The only fault your respondent finds with this proposi­
tion is that Pizitz is presently providing its services and 
the state, as yet, is not. Until such time as the state takes 
over, the store is privately owned and privately operated.

D. State Court Did Not Commit Error in Overruling 
Motion for New Trial to the Denial of Petitioners’ Con­
stitutional Rights.

Similar motions for new trials were filed in each of the 
sit-down cases here involved. Their overruling by the





— 28 —

trial court was incorporated as ground 4 in the assign- 
|  ment of error filed in the Alabama Court of Appeals (see 

Gober case, R. 56).

The great majority of the grounds assigned had no re­
lationship to Constitutional questions, and those that did 
have such relationship have already been discussed at 
some length.

As noted in the opinion of the state court of appeals 
(R. 61), “Assignments of Error Numbers 3 and 4, respec­
tively, are to the effect that the lower court erred in over­
ruling appellant’s motion to exclude the evidence, and in 
overruling appellant’s motion for a new trial. Counsel has 
made no attem pt to separate these assignments for argu­
ment in brief, and we will treat them jointly, though we 

|  wrish to observe that the grounds supporting the motion 
to exclude the evidence are faulty in several aspects, par­
ticularly in setting forth erroneous legal principles as 
their bases. All grounds specified in the motion were de­
fective, and the court properly overruled the motion.” The 
opinion made no further reference to the motion for new 
trial, but proceeded to discuss certain arguments made in 
appellant’s brief which the court held to be erroneous (R. 
61, 62, 63, 64).

The above mentioned statement of the state appellate 
court had obvious reference to Rules of Practice in Su­
preme Court, Rule 9 (10), Alabama Code, 1940, Title 7, 
Appendix, relating to the argument in brief of appellant, 
of each error assigned. The foregoing Supreme Court 
Rule has been construed many times. American Surety 
Co. v. Hooker, 36 Ala. App. 39, 58 So. 2d 469, and Wyatt 
v. Birmingham, 37 Ala. App. 579, 72 So. 2d 735, both as­
sert: “W here assignments of error are argued in groups 
in appellant’s brief, if any one of said assignments is w ith­
out merit a review of the others will be preterm itted.”



'



— 29 —

The net effect of this part of the appellate court’s opin­
ion is that since the motion to exclude the evidence was 
based upon “erroneous legal principles” (R. 61), the Court 
would, under its Rule 9 (10), not consider the motion for 
the new trial which was assigned as error number 4.

By the petitioners’ election not to argue assignments 
of error number 3 and number 4 separately, petitioners 
based their hope of reversing the lower court upon the 
joint validity of both propositions assigned. The adverse 
finding of the appellate court as to error number 3 ren­
dered unnecessary any consideration as to error num­
ber 4,3 under authority of American Surety Co. v. Hooker, 
supra, and Wyatt v. Birmingham, supra.

IIT.
I

FOURTEENTH AMENDMENT NOT INVOLVED IN 
THIS CONTROVERSY.

Each of the sit down cases were tried under similar 
complaints, except for the names of the defendants and 
the respective stores involved (see Gober, R. 2, 3), which 
complaints charged that the defendant “ did go or remain 
on the premises of another, said premises being the area 
used for eating, drinking, and dining purposes and lo­
cated within the building commonly and customarily 
known as (name of store), located at (address), after being 
warned not to do so * *

Lengthy identical demurrers were filed (see Gober, R.
 ̂ 4, 5, 6), preceded by identical motions to strike (see Gober,

R. 3, 4). 3

3 Assignment of error number 5 was not argued at all in appel­
lants’ brief. See opinion of Alabama Court of Appeals (R. 64); 
court “pretermit(ed) consideration thereof", under authority of 
Supreme Court Rule 9 (10). (d).





— 30 —

None of the demurrers was sustained, as has been earlier 
|  noted. No ground of the demurrers properly charged any 

defect apparent upon the face of the complaint so as to 
afford plaintiff an occasion to amend same if need be. As 
noted by the Alabama Court of Appeals (R. 60), “ it is 
clear that all of the grounds (of the demurrers) are gen­
eral in nature, and in no wise point out any specific defect 
in the complaint’’.

The motion to strike was held inapplicable by the ap­
pellate court, with authority cited (R. 60).

The cases proceeded to trial on the question of whether 
or not the offense charged in the complaints had been 
committed by petitioners.

Petitioners in their brief before this Court now contend 
| for the first time, tha t a segregation ordinance is involved 

in each case (p. 18); that a state segregation policy is 
involved (p. 23); that state enforcement of private racial 
discrimination is involved (p. 25). As noted herein earlier, 
after the completion of each of the trials below, the peti­
tioners filed motions to exclude the evidence, contending 
in some half of their grounds that the individual stores 
practiced a usage and policy of segregation (R. 7, 8), 
and tha t because the stores were either publicly owned 
(see Gober, R. 8), or performing a public function (R. 9), 
the stores could not segregate their facilities. Before this 
Court their position changes from the theory that the 
stores are publicly owned, to that of being subjugated 
by state policy.

I The respondent feels that it is not committed by the
Court’s rules to the task of defending all of the incon­
sistent positions of petitioners which were not properly 
placed in issue before the trial court.

As noted in the case of Local No. 8-6, Oil, Chemical and 
Atomic Workers International Union, AFL-CIO v. Mis-



I



— 31 —

souri, 361 U. S. 363, “ Constitutional questions will not 
be dealt with abstractly. * * * They will be dealt w ith 
only as they are appropriately raised (emphasis supplied) 
upon a record before us. * * * Nor will we assume in ad­
vance that a State will so construe its law as to bring it 
into conflict with the federal Constitution or an act of 
Congress.”

For the purpose of correcting the record alone, your 
respondent notes that petitioners’ brief (pp. 23, 26) con­
tains the following: “ But in every case, the City in tro ­
duced evidence to prove that petitioners were asked by 
some employee of the store to leave the dining area re­
served for white customers (emphasis supplied) (R. 21, 
115, 162, 211, 252-253).”  Your respondent has carefully 
reviewed each of the foregoing numbered pages of the 
Record and fails to find one mention of a “ dining area 
reserved for white customers” . The Court’s review of 
same is invited. I t will possibly be of some aid to the 
Court to note, however, that petitioners concede that in 
each case a store employee asked the defendants to leave 
the dining area.

Petitioners argue in their brief (pp. 44-47) that free 
speech is involved and make reference to the opinion of 
Mr. Justice Harlan, in Garner, supra, that sit-downs are 
a p a rt of “ free trade in ideas.”  Mr. Justice Harlan, in 
the foregoing opinion, affirmed also, “ This is not to sav, 
of course, that the Fourteenth Amendment reaches to 
demonstrations conducted on private property over the 
objection of the owner (as in Briscoe) just as it would 
not encompass verbal expression in a private home if 
the owner has not consented.”

For one reason or another, it appears that if a demon­
stration is involved, the case for free speech becomes 
stronger. W hatever may be the significance of the word 
demonstration, the facts in these cases do not indicate to



I



— 32 —

your respondent that demonstrations were involved in 
these cases.

According to the record, certain things were common 
in each of the cases. None of the petitioners carried 
placards or handbills. None of the petitioners made or 
attempted to make speeches. No one resisted arrest in 
any manner so as to attract attention. None of the usual 
fanfare of photographers and newspaper people were in 
attendance as is customary for demonstrations. One of 
the petitioners (R. 21) suggested that the police be called, 
indicating that his extended presence on the premises was 
not of importance. One of the petitioners stated the nature 
of his business was to “ shop’’, and that he purchased 
socks, toothpaste, and a handkerchief (R. 43). He stated 
further he was there for “ a snack”  (R. 49). Another of 
the petitioners (R. 170) stated he purchased comic hooks 
and paper. He further testified (ibid) that he said to 
Parker, “ L et’s go over here and get something to ea t.”

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 fact tha t 
only two students were involved in each store lends further 
credence to this conclusion. Under the facts as presented 
in the record, 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. I t  
must be assumed, and it is not denied, that the plans of 
the petitioners proceeded as they expected them to.

I t is difficult for your respondent to see wherein the 
m atter 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



1



— 33 —

Harlan, in Gamer, supra, would deny petitioners Four­
teenth Amendment protection while demonstrating on the 
private property of another after being told to leave.

CONCLUSION.

Wherefore, for the foregoing reasons, it is respectfully 
submitted tha t the conviction of the petitioners below 
should be affirmed.

Respectfully submitted,

WATTS E. DAVIS,

WILLIAM C. WALKER,

EARL McBEE,
600 City Hall Building, 

Birmingham, Alabama,
Attorneys for Respondent.

Supreme Court of the United States. 

October Term, 1962.

James Gober et al.,
Petitioners,

vs. „ No. 66.

City of Birmingham,

I Respondent.

Certificate of Service. I,

I, Earl McBee, one of the Attorneys for Respondent, City 
of Birmingham, and a member of the Bar of the Supreme 
Court of the United States, hereby certify that on the





— 34 —

............ day of October, 1962, I served a copy of Brief for
Respondent in the above-styled and numbered cause on 
Jack Greenberg and on Constance Baker Motley, Attorneys 
for Petitioners, by depositing same in a United States Post 
Office or mail box, with air-mail postage prepaid, addressed 
to them a t their post office address, namely, 10 Columbus 
Circle, New York 19, New York, and on the following re­
spective Attorneys of Record for Petitioners, whose ad­
dresses are known to Respondent, by depositing the same 
in a United States Post Office or mail box, with first-class 
postage prepaid, addressed to A rthur D. Shores, 1527 5th 
Avenue North, Birmingham, Alabama; Orzell Billingsley, 
Jr., 1630 4th Avenue North, Birmingham, Alabama; Peter 
A. Hall, Masonic Temple Building, Birmingham, 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



-



IN  TH E

i>upmu£ (Emtrt nf tlje United ^tatrs
October Term, 1962

No. 58

EUDOLPH LOMBAED, et al.,
Petitioners,

vs.

LOUISIANA,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF LOUISIANA

BRIEF FOR PETITIONERS

Carl Bachlin ,
280 Broadway,
New York 7, N. Y.,

J ohn P. N elson,
535 Gravier Street, 
New Orleans, La.,

L olis E. Elie,
2211 Dryades Street, 
New Orleans, La., 

Attorneys for Petitioners.
J udith P. V ladeck,
B obert F . Collins,
N ils E . D ouglas,
J anet M. E iley, 1
Charles Oldham, 'J

of Counsel.





I N D E X

PAGE

Opinion B e l o w __________________________________________1

J u r isd ic tio n_________________________________________ 2

Questions P resented_________________________________  2

S tatutory and Constitutional P rovisions I nvolved__ 3

S tatement

A. Facts ______________________________________  3

B. Actions Below _______________________________  5

S ummary of A rgument _________________    6

A rgument

P oint I —State action has denied petitioners equal 
protection under the law through the acts of the 
manager of McCrory’s, the police, the prosecutors, 
and the courts, and through the mayor, the legisla­
ture and custom _____ ________________________  8

A. The Principle of S h e lley  v. K r a e m e r  applies in
this case _________________________________! 8

B. The State Actively Intervened Herein, in That
I t  Encouraged and Adopted Unto Itself the 
Acts of Discrimination D escribed___________ 9

C. Louisiana Avoided the Obligation of a State
to Preserve Im partial A dm inistration of Law 12

t P oint I I —Evidence adduced at the trial was not such
as to sustain a conviction under the United States 
Constitution __________________________________  13

P oint I I I—The use of the public force to protect 
property is limited by tbe equal protection clause 
of the Fourteenth Amendment -------------------------- 16



• ■



11 I N D E X

PAGE

P oint IV — The Constitutional right of petitioners 
freely to assert opposition to segregation is a right 
that should have been protected by the State in 
the case at b a r ________________________________ 20

P oint V—Restaurants are a business affected with a 
public interest wherein segregation may not be en-

P oint V I—Refusal by trial judge to admit evidence 
to establish actual concert between McCrory’s and 
the police violated petitioners’ right to a fa ir and 
im partial trial as guaranteed by the Fourteenth 
Amendment __________________________________  24

Conclusion _____ 25

A uthorities Cited 

Cases:

Burton v. Wilmington Parking Authority, 365 U. S.
721 (1961) _________________________ _________  15,17

Civil Rights Cases, 109 U. S. 3 (1883)______________ 8, 25

Garner v. Louisiana, 36S U. S. 157 (1961) _________11,23

Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952) — 20

Marsh v. Alabama, 326 U. S. 501 (1946) __________23,24

Schenck v. U. S., 249 U. S. 47 (1919) _______________ 22

Schneider v. State, 308 U. S. 147 (1939) _______ 20,21,22

Sellers v. Johnson, 163 F . 2d 877 (CCA 8th, 1947), 
cert. den. 332 U. S. 851 (1948) 21





I N D E X 111

PAGE

Shelley v. Kraem er, 334 U. S. 1 (1948) _ 8, 9,12,13,17,18,19

State v. Goldfinch, 241 La. 958,132 So. 2d 860-------------  1

Thomas v. Collins, 323 U. S. 516 (1944)----------------  21,22
Thornhill v. Alabama, 310 U. S. 88 (1940)__________20, 21

W. Va. State Bd. of Education v. Barnette, 319 U. S.
624 (1 9 4 3 )_____________________________________  21

Yick Wo v. Hopkins, 118 U. S. 356 (1886)------------------ 15

Statutes:
28 U. S. C. §1257 ( 3 ) ______________________________  2

L. S. A.-R. S. 14:59(6) _______________________3,4,16, 21

La. R. S. 40:32, 35 ________________________________ 23

La. R, S. 47:353, 362 _______ _______________________ 23

Ordinances:

New Orleans City Code, 1956, §29-55, 56 ------------ ------- 23

Miscellaneous:

Holmes, T he Common L a w ---------------------------------- 16,17

M. R. Cohen, L aw and the S ocial Order___________16,17





I N T HE

j5>uprm? Glmtrt n f  tip l ln itP ii  Stairs
October Term, 1962

No. 58

R udolph L ombard, et al.,

vs.

L o u i s i a n a ,

P e ti t io n e rs ,

R esp o n d en t.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF LOUISIANA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Louisiana is re­
ported at 241 La. 958, 132 So. 2d 860, under the name of 
S ta te  v. Goldfinch, et al. The judgment of the Criminal 
District Court, Parish  of Orleans, overruling the peti­
tioners’ motion to quash is in the printed transcript at page 
28. No written or oral reasons were given by the trial judge 
when he found the defendants guilty.





2

Jurisdiction

The judgment of the Supreme Court of Louisiana was 
entered on June 29, 1961. Rehearing was refused on Oc­
tober 4, 1961. The petition for a writ of certiorari was 
filed on December 29, 1961, and was granted on June 25, 
1962. The jurisdiction of this Court rests on 28 U. S. C. 
§1257(3), petitioners claiming rights, privileges and immu­
nities under the Fourteenth Amendment to the Constitution 
of the United States.

Questions Presented

1. W hether petitioners were deprived, because of vari­
ous acts of the state described below, of equal protection of 
the laws guaranteed by the fourteenth amendment.

2. W hether the conviction of petitioners herein violated 
due process.

3. W hether the decision of the Supreme Court of 
Louisiana as to the Louisiana statute should be reversed 
and the conviction of petitioners be set aside.

4. W hether the conviction of petitioners herein denied 
them the guarantees of free speech provided in the four­
teenth and first amendments. 5

5. W hether the right of a private property holder to 
call upon the public force is limited by the fourteenth 
amendment.





3

Statutory and Constitutional Provisions Involved

1. The Fourteenth Amendment to the Constitution 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: * * *
“ (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.
“ 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
A: Facts:

On September 17, 1960, the petitioners, three Negroes 
and one white, in an orderly and quiet manner (R. 105, 108), 
at approximately 10:30 a.m., requested that they be served 
at a refreshment bar hitherto reserved for whites in 
McCrory’s Five and Ten Cent Store, New Orleans, Louisi­
ana. Because three were Negroes, all were refused service 
at the bar (R. 105,113).

The continued presence at the “ white” counter of the 
petitioners, after being informed that there was a “ colored” 
counter (R. I l l )  was considered by Mr. Graves, restaurant 
manager, as an “ unusual circumstance” (R. 105), or an



>



4

“ emergency” (R. 105, 106); hence he ordered the counter 
closed down (R. 105) and called the police (R. 106). At no 
time did he ask petitioners to leave the store (R. 135, 136, 
137).

After the police arrived on the scene, Captain Lucien 
Cutrera of the New Orleans Police Department advised 
Mr. Wendell Barrett, the store manager, to tell the peti­
tioners in his presence that the department was closed and 
to request them to leave the department; Barrett followed 
the Captain’s advice (R. 113, 126). When they did not 
answer or comply wTith the request, Major Edward Reuther, 
of the New Orleans Police Department, ordered petitioners 
to leave the store within one minute (R. 129).

Reuther testified that first he interrogated the petition­
ers as to the reason for their presence, and asked “ who 
was the leader?” . After being told that they were going to 
sit there until they were served (R. 116), the petitioners 
were placed under arrest (R. 129), charged and convicted 
under LSA-R.S. 14:59 (6). They were each sentenced to 
pay a fine of $350.00 and to imprisonment in Parish Prison 
for sixty days and upon default of the payment of fine to 
imprisonment for an additional sixty days.

McCrory’s is made up of approximately twenty de­
partments (R. 120) and open to the general public (R. 19). 
Included in its services to the public are eating facilities 
composed of a main restaurant that seats 210, a counter 
that seats 53, a refreshment bar that seats 24 and two stand- 
up counters (R. 104). All of the eating facilities are segre­
gated. There are no signs indicating whether service at any 
particular counter is limited to either Negro or white (R. 
110).



■



5

The store’s segregation policy is determined by local 
tradition, law and custom, as interpreted by the manager 
(R. 21). The manager, Mr. Barrett, testified that his deci­
sions relative to segregated lunch counters within the store 
conform to state policy, practice and custom (R. 25).

One week prior to the arrests herein, the Superintendent 
of Police of New Orleans stated that his department would 
“ take prompt and effective action” against persons in­
volved in any such activity as described above (R. 139- 
140).

Four days before petitioners wore arrested, the Mayor 
of the City of New Orleans made known that he had in­
structed the Superintendent of Police that no such acts 
would “ be permitted” , and directed that they be prohibited 
by the police department (R. 138-139).

B. T h e  A c tio n s  B e lo w :

The case was prosecuted in the Criminal District Court 
for the Parish of Orleans.

Upon the trial, of the five witnesses for the prosecution, 
three were police officers. The Court refused to- permit 
introduction of testimony, however, as to the cooperation 
of the store officials and the police officers (R. 23, 24, 127).

At the conclusion of the trial petitioners were found 
guilty and sentenced; no opinion was filed.

Motions for a new trial were made and denied. The 
matter was appealed to the Supreme Court of Louisiana, 
where the convictions were affirmed and rehearing denied. 
Application for stay of execution for sixty (60) days was 
granted by the Chief Justice of the Louisiana Supreme 
Court on October 6, 1961.





6

Summary of Argument

I. Petitioners, three Negroes and one white, were ar­
rested and convicted of the crime of “ criminal mischief’’ 
by the State of Louisiana for participating in a protest 
against discriminatory treatment by retail establishments 
which permitted Negroes to spend their money freely at all 
but the “ white” lunch counters. The arrests followed 
efforts of petitioners to obtain service at the white counter 
and their refusal to move to the food counter reserved for 
Negroes.

The officials of the City of New Orleans, the police of 
that City and the Courts, all cooperated in an effort to con­
vert a lawful act into a crime. Whatever their avowed pur­
pose, their intent was clear—to perpetuate the local custom 
of segregation of Negroes.

As a result of the involvement of the state, through its 
various agencies, it is clear that there is no validity in a 
claim that the state merely acted in aid of a private prop­
erty owner in the protection of his property rights.

II. It is urged that this Court reverse the decision of 
the Courts below. The opinion of the Supreme Court of 
Louisiana is based upon an unconstitutional interpretation 
of the statute which formed the basis for the charges 
against petitioners. By its decision, the Supreme Court of 
Louisiana imputed to the Legislature of Louisiana state 
support and encouragement for acts of improper discrimi­
nation. Nothing in the statute warrants such an interpre­
tation. Since it has been read into the statute by the Courts 
below, and since no evidence upon which petitioners could 
have been convicted under a reading of the statute con-



-



7

sistent with the Constitution of tlie United States was ad­
duced at the trial, the decision must be reversed.

III. The public force was called herein, presumably 
in aid of a private property right. The Courts below erred 
in not finding that such public force had been used to an 
extent not permissible under the Fourteenth Amendment. 
While property rights arc created and enforced by the 
State, protection of property interests by the State may 
not be for a purpose in violation of the equal protection 
clause.

IV. The acts of petitioners, peaceful, but meaningful, 
were an act of silent speech, a protest against segregation 
of Negroes.

Petitioners were protesting on property open to the 
public. Since they were in no way disorderly, the arrests 
by the police constituted an improper inhibition upon 
speech in violation of the Fourteenth and First Amend­
ments.

V. Under Louisiana law, restaurants are a business 
requiring a license and thus are affected with a public inter­
est. At no time were petitioners disorderly; admittedly, the 
only act from which their arrests stemmed was a refusal 
to move on to the Negro counter. In businesses affected 
with such a public purpose, although they are labelled 
“ private property” it is improper for the state to enforce 
segregation of Negroes.

VI. Petitioners endeavored, upon trial, to offer testi­
mony showing the concert of action between the store pro­
prietor and public officials in Louisiana. Such testimony 
would have tended to show direct state participation in the 
acts of discrimination. That testimony was refused by the 
Court, thus denying due process of law to petitioners.





ARGUMENT

P O I N T  I

Slate action has denied petitioners equal protection 
under the law through the acts of the manager of Mc- 
Crory’s, the police, the prosecutors, and the courts, and 
through the mayor, the legislature and custom.

A . T h e  P r in c ip le  o f  S h e l l e y  v. K r a e m e r  a p p lie s  in th is  case .

Tbe law as enunciated in Shelley v. Kraemer, 334 U. S. 
1, is applicable to tbe case at bar.

In that case the aid of the Missouri and Michigan 
courts was sought to enforce a restrictive covenant dis­
criminating against Negroes. In its opinion, judicial func­
tions were described as action of the state by this Court; 
accordingly, the interventions by the state courts upholding 
such covenants through injunctive relief were set aside as 
being a denial of equal protection of the laws.

As in Shelley, in the case at bar, the assistance of the 
state has been sought to maintain a whites only policy and 
to prevent Negroes from receiving equal treatment.

Affirmed in the Shelley case, supra, was the view ex­
pressed in the Civil Rights Cases 109 U. S. 3, that private 
acts of discrimination were not inhibited by the Fourteenth 
Amendment, the Court specifically saying that voluntary 
adherence to the restrictive covenants did not violate the 
Fourteenth Amendment. But the intervention of the state 
judiciary was sufficiently the act of the state to set aside 
enforcement of the covenant relied upon its purported bene­
ficiaries.





9

As applied to the case at bar the voluntary adherence 
doctrine referred to in the Shelley case, would presumably 
be limited to the act of MeCrorv’s in setting up its discrimi­
natory pattern of food service, and asking its customers, 
in effect, to accept this pattern.

But such are not the facts before us. As in Shelley, the 
assistance of the state has been sought to maintain a whites 
only policy and to prevent Negroes from receiving equal 
service, a policy announced, fostered and protected by the 
state. The concern is not with the right of McCrory’s to set 
up voluntarily a -whites only counter; it is with the state 
participation in its maintenance, and in forcing the public 
to accept the pattern.

That the seeker of legal relief in Shelley was, in a cer­
tain sense, a stranger to the immediate sale and purchase 
of land, whereas before us, the owner of the facility, Mc­
Crory’s, sought the relief, is of little moment. In each case 
the aid of the state was sought; in fact, as the record 
demonstrates, the state participation was greater in the 
case before us than in Shelley v. Kraemer. It is the action 
of the State in support of private discrimination which 
makes for the violation of the Fourteenth Amendment and. 
not the name or character of the litigants involved. We 
submit that state action to deny due process and equal 
protection was present in the instant case in several forms.

B . T h e  S ta te  A c tiv e ly  In terv en ed  H erein , in T h at It
E n co u ra g ed  an d  A d o p te d  U n to  I tse lf  th e  A c ts  o f
D iscr im in a tio n  D escr ib ed .

(1) One -week prior to the arrests herein, the Superin­
tendent of Police of New Orleans, and four days prior 
thereto, the Mayor of New Orleans, each made clear the





10

intention of the City of New Orleans to protect acts of dis­
crimination against Negroes.* In fact the Mayor went so far 
as to give instructions to arrest persons who peacefully 
sought, and hopefully awaited, service at retail stores (R. 
138). At the trial, petitioner sought to introduce evidence 
concerning the nature of the interaction and cooperation 
between these public officials and the retail store owners, 
particularly McCrory’s. The Court refused to admit tes­
timony on this point (R. 23-27, 127).

While voluntary private adherence to a discriminatory 
pattern may not he violative of the Fourteenth Amendment, 
the act of the state, through the New Orleans officials, in 
advising storekeepers in advance that the Police would not 
permit peaceful acts such as were engaged in by petitioners, 
we urge is such a violation. The City tells such store owners 
that they should seek the assistance of the police in main­
taining inequality; this thereby becomes not a matter be­
tween private parties. Both during and immediately before 
the acts of the petitioners, the full weight of the state was 
invoked in favor of discriminatory treatment of Negroes.

Had not the public authorities expressed themselves and 
intervened, what action McCrory’s would have taken is 
speculative; but not unreasonably, so; one of the possibili­
ties, because of the peaceful nature of the acts of peti­
tioners involved, is that no call to the police would have 
been made, and accordingly, no arrests made.

* These statements conformed to official state policy as expressed 
in Louisiana Act 630 of 1960, which in its preamble states:

“Whereas, Louisiana has always maintained a policy of 
segregation of the races, and

Whereas, it is the intention of the citizens of the sovereign 
state that such a policy be continued.”





11

As Mr. Justice Frankfurter said in his concurring opin­
ion in Garner v. Louisiana, 368 U. S. 157 “ It is not fanciful 
speculation, however, that a proprietor who invites trade in 
most parts of his establishment and restricts it in another 
may change his policy when non-violently challenged.” *

(2) When petitioners sought service at the white 
counter, the counter immediately was closed and the police 
called. Shortly thereafter, various policemen arrived and 
advised the store manager, “ That we must witness his 
statement to them that he didn’t want them in the place” 
(R. 125-126). The manager was thus instructed by the 
police to order petitioners away in their presence.

The police were called to assist and enforce McCrory’s 
efforts to maintain segregation in food service (it is to be 
remembered that the practice related only to food service, 
and not other departments of the store). The police insisted 
on being official witnesses; after hearing the manager order 
petitioner to leave the department (E. 113), the police then 
ordered them from the store (R. 123). Thus not only were 
the New Orleans Police official witnesses to a private act 
of discrimination, but, in fact, became, by their direct inter­
vention and order to petitioners to leave the store, principal 
parties to an act of discrimination. This was followed by 
the arrest of petitioners and the charge of violation of the 
criminal statute referred to placed against them.

(3) The prosecution of the case against petitioners was 
conducted under the aegis of the District Attorney of the 
Parish of Orleans.

* The accuracy of this position is borne out by fact. The New 
York Times, Sept. 13, 1962, on p. 41 reported that McCrory’s, among 
other New Orleans retail establishments, desegregated its lunch 
counters.





12

(4) While the hearing of the case by the Court, of 
course, does not throw the weight of the state behind the 
acts denying equal protection of the law to petitioners, the 
conviction by the judge, sitting without a jury, no less than 
the injunction in Shelley v. Kraemer, supra, becomes the 
act of the state. Incarceration in a jail maintained by 
Louisiana (which awaits petitioners if their conviction 
should he affirmed by this Court) is similarly no less an act 
of the state than the injunction in the Shelley case. The 
power to punish is the ultimate expression of state inter­
vention.

C. L o u isia n a  A v o id ed  th e  O b lig a tio n  o f  a  S ta te  to  
P reserv e  Im p artia l A d m in istra tio n  o f  L aw .

WTiile it may be true, as the Court below asserts, that 
without the will of the proprietor the state “ can find no 
basis under the statute to prosecute” , it is no less true that 
without the state to advise the proprietor, to arrest, to 
prosecute, to judge and finally to incarcerate petitioners the 
so-called “ will” of the proprietor might not have been made 
known overtly in any fashion. It is also suggested that 
without the actions of the state, this so-called “ will” , de­
scribed by the Court below, may reasonably have been non­
existent; the problem for which petitioners presently seek 
relief from this Court would also be non-existent.

We urge that it is specious to suggest that in the case 
at bar the state is playing the role of a referee in a battle 
between private litigants. No disorder occurred warrant­
ing the intervention of the state. By its intervention, the 
state prevented a negotiated, or freely arrived at con­
tractual solution of the problem. It is not far fetched to 
say that the offer to purchase made by petitioners to





13

McCrory’s might eventually have been accepted if the state 
had not acted to prevent just such an acceptance.

W hether that would have occurred in this case is not 
known, but clearly, intervention by the state prevented a 
peaceful solution, and made impossible a freely arrived at 
agreement in support of social progress. The acts of the 
state not only inhibited a peaceful concurrence but actually 
were in aid of social disintegration.

To pretend that the state was, as Louisiana has sug­
gested, a neutral party  in this m atter is either to indulge in 
fantasy, or to attem pt to create an a ir of subterfuge through 
which the “ gam e”  of segregation is still “ played”  even 
though the characters wear slightly different masks. The 
proprietor of the store plays only a small role in this 
charade; the main parts belong to the State. In any event 
the victim is the same and same jail is used.

F o r all the reasons we have urged, we respectfully sug­
gest that the doctrines enunciated in She l ley  v. K r a e m e r  
are directly applicable to this proceeding and the convic­
tions should accordingly be reversed and set aside.

P O I N T  II

Evidence adduced at the trial was not such as to sus­
tain a conviction under the United States Constitution.

This Court has historically sought to find interpretations 
which uphold the constitutionality of statutes. We suggest 
that the Court below in affirming the convictions of peti­
tioners, so read the statute involved here as to require that 
it be found unconstitutional. For, in affirming the convic­
tions the Supreme Court of Louisiana implicitly deter-





14

mined that the legislature authorized in advance and sup­
ported, private acts of discrimination.

The Louisiana statute is entitled “ Criminal Mischief.”  
In  applying the facts of the instant case to that statute, it 
is patent from the record that no criminal mischief was in 
fact involved; petitioners were quiet and orderly, no evi­
dence of any disorder by them or any others in the premises 
was even offered. Solely because three of the petitioners 
were Negroes, a lunch counter, maintained by the McCrory 
chain, was closed at an unusual time so as to avoid serving 
petitioners at a “ whites only”  counter. No reason was 
given for this action by the McCrory store other than the 
skin color of some of petitioners.

No reference appears in a reading of the statute, as the 
Court below noted, to support segregation violative of the 
Constitution; accordingly none should be assumed. But, 
the interpretation of the lower Courts, say, in effect, that 
the Louisiana Legislature authorized acts which were be­
yond its competence under the Fourteenth Amendment, 
namely the commission of acts of discrimination against 
negroes.

I f  the state cannot commit acts of discrimination under 
the equal pi’otection clause of the Fourteenth Amendment, 
how can it then authorize by statute the commission of such 
acts? We are not concerned here with a mere private right 
of private persons, but an affirmative act of legislation 
which the Court below would have us believe authorized the 
acts of discrimination.

Petitioners were arrested at a “ white”  counter. Cer­
tainly, Louisiana could not enact legislation directly making 
criminal the acts of petitioners here; it could not say that





15

negroes Lad no right to sit at the lunch counter in question. 
The Court below would have us believe, however, that de­
spite this limitation, the Legislature could and did authorize 
and support by criminal penalties a subterfuge to do this 
very act.

This Court has ruled on several occasions that legisla­
tion enacted to maintain segregation is unconstitutional. 
This is so whether it is in a public facility or involves a 
private activity. Bu rton  v. W ilm ington  Pa rk ing  A u th o r i t y ,  
365 TJ. S. 721.

I f  the Court below is correct, this Court is being urged 
to perm it subterfuge to justify and uphold the performance 
of activity which clearly is otherwise illegal. For whether 
by legislation that says “ no negroes may sit at white lunch 
counters” , or by interpreting a statute so as to cause it to 
read as i f  it said that, the result is exactly the same, seg­
regation is maintained and persons are convicted of com­
mitting a crime, without engaging in any act other than 
sitting peacefully at a lunch counter.

We suggest that the improper interpretation of the 
statute of the Court below requires a setting aside of the 
convictions herein on the grounds that there is nothing in 
the legislation in question which authorized the convictions 
or their affirmance.

The often-quoted language in Tick W o  v. Hopkins ,  118 
U. S. 356, 373, 374 is particularly apropos h e re :

“ Though the law itself be fa ir on its face and im­
partial in appearance, yet, if it is applied and admin­
istered by public authority with an evil eye and an 
unequal hand so as practically to make unjust and 
illegal discriminations between persons in similar 
circumstances, material to their rights, the denial





16

of equal justice is still within the prohibition of the 
Constitution. This principle of interpretation has 
been sanctioned by this court in H en derson  v. M a y o r  
etc. of  Neiv  Y ork ,  92 U. S. 259 (Bk. 23, L. ed. 543); 
C h y  L u n y  v. F reem an ,  92 U. S. 275 (Bk. 23, L. ed. 
550); E x  p a r t e  Va.  100 U. S. 339 (Bk. 25, L. ed. 676); 
N e a l  v. Delaivare,  103 U. S. 370 (Bk. 26, L. ed. 267); 
and Soon H ing  v. C r o w le y  ( s u p r a ) . ”

La. R. S. 14:59(6), even if it is constitutional, has been 
arbitrarily , capriciously and discriminatorilv applied and 
administered unjustly and illegally, and only against per­
sons of the Negro race or white persons acting with mem­
bers of the Negro race. Such unequal application of the 
law cannot be excused by a pretense that the law, as 
written, does not require unequal treatment.

P O I N T  I I I

The use of the public force to protect property is 
limited by the equal protection clause of the Fourteenth 
Amendment.

The Fourteenth and F ifth  Amendments protect private 
property so that it may not be taken without due process 
of law. In them, limitation is set on the exercise of both 
the federal and state power.

Much has been written as to the nature and philosophy 
of property and possession. Justice Oliver Wendell Holmes 
in the chapter on possession in his renowned volume on the 
Common L aw and Professor Morris R. Cohen in L aw and 
the S ocial Order are amongst our finest commentators as 
to the nature of property and its limited uses.





17

Professor Cohen in the essay on property in Law and 
the S ocial Ordek discusses property as being a legal right 
granted to an individual to exclude others from its use.

Justice Holmes at page 214 of the 45th edition to the 
Common L aw stated it in these terms. “ A legal right is 
nothing but a permission to exercise certain natural powers, 
and upon certain conditions to obtain protection, restitution 
or compensation by the aid of the public force. Ju s t so fa r 
as the aid of the public force is given a man, he has a legal 
right . . . ”

M cCrory’s, possessing the legal right to the use of 
property, chose voluntarily to open its property at busy 
Canal and Burgundy Streets to the public for the sale 
of numerous kinds of goods and services. I t could have 
excluded, by virtue of its right, all persons from that prop­
erty ; it chose rather to put it to a business use. Now it calls 
upon the public force to aid it in effectuating an admitted 
act of discrimination and segregation, an act which if com­
mitted by the state directly would clearly violate the Four­
teenth Amendment. Bu rton  v. W ilm in g to n  P a r k in g  A u ­
th o r i t y ,  supra.

A t this point the issue is not whether private acts of 
discrimination violate the Fourteenth Amendment, but 
whether the public force may be used to maintain and sup­
port acts of segregation. Certainly the public force may 
not directly impose segregation and many cases to that 
effect have been decided by this Court. Then wherein lies 
the difference, unless we presume a blind and deaf public 
power.

The Court in She l le y  v. K r a e m e r  stated at page 22, 
“ The Constitution confers upon no individual the right to





18

demand action by the State which results in the denial of 
equal protection of the laws to other individuals. And 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 Amend­
ment.”

In  this case the issue is not whether McCrory’s must 
or must not serve petitioners, not whether they may or may 
not select clientele, but whether or not they may ask the 
public force to assist them in a refusal to serve persons 
based upon their color. As we perceive it, the issue is not 
the private right of McCrory’s, but the use of the public 
force “ which results in the denial of equal protection of the 
laws to other individuals.”

Justice Holmes stated that the legal right resulting 
from the possession of property bears the related right to 
call upon the public force; but the use of that force is 
limited by the restrictions of the Fourteenth Amendment 
and the equal protection clause. This is a reasonable infer­
ence to be drawn from the statem ent from Shelley v. 
K r a e m e r ,  supra ,  quoted above.

There is no neutral protection of property rights in such 
a m atter as before this Court. We are not concerned with 
the traditional duty of the police to maintain order, to pro­
tect people in their homes or to direct the flow of traffic. 
This property located a t Canal and Burgundy Streets in the 
heart of downtown New Orleans was no person’s home, nor 
was there any showing of any public disorder. The only 
untoward act occurred with the closing of the lunch counter 
at 10:30 A. M. by the manager of the department duo to the 
presence of Negroes.





19

Pretense, sham and subterfuge do not create respect for 
the law, and do not obtain compliance with the law. To 
pretend the police merely protected a property right, one 
must pretend that no more was involved in the arrest of 
petitioners. Laws must be based on honesty and reality, 
not deception and inequality. Property  rights were not the 
subject of protection by the police though the pretense was 
such, but rather the unequal, immoral, degrading institution 
of segregation was the beneficiary of the law’s bounty.

I t  is no derogation of the right of private property to 
say it cannot call upon the public force to protect it from a 
use in violation of the United States Constitution. In  many 
ways the uses of private property are limited. F o r ex­
ample, zoning ordinances clearly limit the freedom of use 
of property.

In  Louisiana, Civil Code Articles expressly limit prop­
erty rights, as for example:

Article 490. Ownership is divided into perfect and 
imperfect. . .  .

Article 491. Perfect ownership gives the right to 
use, to enjoy and to dispose of one’s property in the 
most unlimited manner, provided it is not used in 
any way prohibited by laws or ordinances. . . .

Article 667. Although a proprietor may do with his 
estate whatever he pleases, still he can not make any 
work on it, which may deprive his neighbor of the 
liberty of enjoying his own, or which may he the 
cause of any damage to him.

We respectfully urge as the Court stated in She l le y  v. 
K r a e m e r  ( su p r a ) ,  that a private owner cannot call upon





2 0

the public force to maintain an inequality in the protection 
of the laws; similarly it is violative of the Fourteenth 
Amendment for the public force to respond in support of 
such improper call. Accordingly, we urge the setting aside 
of the convictions for this reason.

P O I N T  IV

The Constitutional right of petitioners freely to assert 
opposition to segregation is a right that should have 
been protected by the State in the case at bar.

Petitioners’ presence at the lunch counter was a fox-m 
of expression, a means of communication; in the broad 
sense, it was “ speech.”

“ Speech” protected by the United States Constitution 
includes modes of expression other than by voice or by 
press. J o s e p h  B u r s t y n ,  Inc. v. Wilson,  343 U. S. 495, 
Thornhi l l  v. A la b a m a ,  310 U. S. 88, 106.

Petitioners’ act in sitting quietly in a place of business, 
for the purpose of expressing disapproval of a policy of 
racial discrimination practiced there constituted a form of 
speech. As such, it is protected against interference by the 
State.

“ The freedom of speech and of the press secured by the 
F irs t Amendment against abridgment by the United States 
is similarly secured to all persons by the Fourteenth against 
abridgment by a state .”  Schne id er  v. S t a t e ,  308 U. S. 147.

When agents of the state (police officers, the District 
Attorney, the D istrict Judge) arrested, charged and tried





2 1

petitioners under La. R. S. 14:59(6), thereby preventing 
them from continuing their expression of disapproval of 
racial discrimination by the management of the lunch 
counter, the state deprived them 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 circumstances, 
it may not be so when its enforcement limits a fonn of com­
munication of ideas, as has been done in the present in­
stance. Rather than being arrested for their expression of 
opinion, petitioners had a right to expect police protection 
to preserve oi’der. Sellers v. Johnson, 163 F. 2d 877 (8th 
Cir.) cert, denied, 332 U. S. 851.

Complex as our society is, it is inevitable that various 
interests will come into conflict. I t  is not unusual for this 
Honorable Court to consider a right such as free speech 
weighed against other rights. Schneider v. State, 308 U. S. 
147; Thomas v. Collins, 323 U. S. 516.

Freedom of speech was inhibited by the state herein. 
I t  can hardly be denied that the act of petitioners was an 
act of speech, asserting the right of equality for all citizens, 
black or white. The act of the state in limiting this asser­
tion must be examined by the Court to see what interest of 
the state needed protection to warrant the interference with 
speech. TF. Va. State Bd. of Education v. Barnette, 319 
U. S. 624, 639.

There was no imminent danger to the state which re­
quired protection, and which demanded the limitation of 
speech. Thornhill v. Ala., supra. In passing the statute



(



2 2

under which petitioners were charged, there was no sub­
stantive evil threatened requiring the denial of the right 
to peaceful, free assertion or speech. Scl ienck  v. U. S. ,  
249 U. S. 47.

I t  has always been the view that rights under the F irs t 
Amendment (and protected from infringement by the state 
under the Fourteenth) are preferred rights, and the usual 
presumption in favor of validity of legislation is not present 
with respect to laws limiting such rights. T h o m a s  v. Collins ,  
313 U. S. 516; Schne id er  v. S ta te ,  308 U. S. 147.

No right of the state at all is alleged; at most, merely 
the right to refuse service to Negroes by privately owned 
storekeepers is involved. Not only was no disorder shown 
to have existed, no assertion of any loss to M cCrory’s was 
made. Weighed against the peaceful exercise of speech by 
petitioners is an act of discrimination not only immoral in 
itself, but legally de minimis, and almost frivolous as com­
pared with the right of protest against such discrimination.

The state was not presented with a street brawl where 
its duty would be to maintain order neutrally, but rather 
with two assertions of right. However it acted, one right 
or the other had to be subordinated. When such are the 
conditions, the choice must support the highly protected 
Constitutional right of freedom of speech.





23

P O I N T  V

Restaurants are a business affected with a public in­
terest wherein segregation may not be enforced.

In  G arner  v. Louis iana,  368 U. S. 157, Mr. Justice 
Douglas, in his concurring opinion, pointed out that Louisi­
ana restaurants are required to have a license. La. R. S. 
47:353, 362. Local Boards of Health may provide means 
for public health. La. R. S. 40:32, 35. Ordinances of the 
City of New Orleans include the requirement that persons 
selling food must have a permit. New Orleans City Code, 
1956, §29-55, 56. Thus the State has more than a casual 
concern in such m atters in order to protect the public 
interest.

W hatever the issues are in other businesses, the state 
has shown its special interest in restaurants by licensing 
them. Almost by definition this becomes a business affected 
with a public interest.

“ 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 statu tory  and constitu­
tional rights of those who use it (M arsh  v. A l a b a m a ,  326 
U. S. 501).

W ith McCrory’s open to the public in the manner it is, 
we urge that it has become so affected with a public interest 
as to require the application of the Fourteenth Amendment.

Nor can the protections of that Amendment be by­
passed by resort to charging some members of the public 
with trespass when they enter the open doors of such an 
establishment. The concept of trespass in a publicly



I

I



24

licensed business operated in the open m anner in which this 
store functions is almost self-contradictory.

The absurdity of the idea of trespass by these petitioners 
becomes more apparent when we examine the testimony and 
find that Negroes are welcomed a t all counters hut the one 
in question.

Since the events herein took place in a publicly licensed 
restaurant opened to the public at large, the acts of dis­
crimination were committed by a business affected with a 
public interest; such being the case the limitations and 
obligations of the Fourteenth Amendment apply (Marsh  
v. Ala . ,  s u p r a ) ,  and the convictions should be reversed as a 
denial of equal protection.

P O I N T  VI

Refusal by trial judge to admit evidence to establish 
actual concert between McCrory’s and the police violated 
petitioners’ right to a fair and impartial trial as guaran­
teed by the Fourteenth Amendment.

The refusal of the trial judge to admit testimony show­
ing actual concert between the store proprietor an<j the 
police violated petitioners’ right to due process of law 
guaranteed by the Fourteenth Amendment (R. 22-25).

The expression of policy by the Mayor and the Superin­
tendent of Police of the City of New Orleans (R. 138-9) 
operated as a warning to all members of the Negro race 
not to seek service at lunch counters whether or not the pro­
prietor was willing to serve them. The pronouncement of 
policy by the leaders of the municipal authority  operated 
also as notice to proprietors of business establishments not



'



25

to serve Negroes at “ w hite”  counters at the risk of suffer­
ing municipal censure or punishment.

Under the Civi l  R ig h t s  cases, supra ,  to show state par­
ticipation it was important that defendants prove concert 
between the store manager and the police. This was rele­
vant evidence, the exclusion of which was prejudicial to the 
petitioners as it limited their right to show that they were 
the victims of prohibited state action rather than of a 
protected personal act of the proprietor.

Conclusion

For all of the reasons set forth above, we respectfully 
urge that the convictions of petitioners, and the affirmance 
thereof, he reversed and set aside.

Respectfully submitted,

Carl R achlin,
280 Broadway,
New York 7, N. Y.,

J ohn P. N elson,
535 Gravier Street, 
New Orleans, La.,

L olis E . E lie,
2211 Dryades Street, 
New Orleans, La., 

A t t o r n e y s  f o r  Pe t i t ioners .
J udith P. V ladeck,
R obert F. Collins,
N ils R. D ouglas,
J anet M. R iley,
Charles Oldham,

of  Counsel .



I

!



TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 66

JAM ES GOBER, ET AL., PETITIO N ER S,

vs.

CITY OF BIRMINGHAM.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE 
STATE OF ALABAMA

PETITION FOR CERTIORARI FILED JANUARY 31, 1962 

CERTIORARI GRANTED JUNE 23, 1962



(

I

i



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

N o .  6 6

JAMES GOBER, ET AL., PETITIONERS,
vs.

CITY OF BIRMINGHAM.

O N  W R I T  O F  C E R T IO R A R I  T O  T H E  C O U R T  O F  A P P E A L S  O F  T H E  

S T A T E  O F  A L A B A M A

I N D E X
O r ig in a l P r in t

I

Record from the Circuit Court of the Tenth Judi­
cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. James Gober, No. 20780 ------  1 1
Appeal bond -----------------------------------------------  1 1
Complaint _________________________________ 2 2
Motion to strike ____________________________  2 3
Demurrers --------------------------------------------------  3 4
Motion to exclude the evidence  — .............. — 5 6
Judgment entry ------------------------------------------  7 9
Motion for a new trial and order overruling__  9 12
Appeal bond to Court of Appeals------ -------- —~ 12 15
Transcript of evidence ----------------------------------  13 16

Appearances ---------------------------------------------   13 17
Testimony of E. K. Martin—

direct -------------------  15 18
cross -----------------------------  17 19

R e c o r d  P r e s s , P r i n t e r s , N e w  Y o r k , N .  Y . ,  A u g u s t  1, 1962





IX INDEX

Original Print
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham 
v. James Gober, No. 20780—Continued 
Transcript of evidence—Continued 

Testimony of John I. Gottlinger—
d ir e c t_______________  18 21
c r o ss ________________  22 24
r e d ir e c t--------------------- 25 27
r ecro ss----------------------  25 27

C. L. Pierce—
d ir e c t_______________  26 28

Examination on voir dire ----   28 30
Testimony of James Edward Gober—

direct _______________  30 32
cross ________________  31 34

C. L. Pierce—
(recalled)—

direct _______________  36 37
cross ________________  39 41

James Albert Davis—
direct _________ 1_____  41 43
cross ________________  43 45
redirect _____________  48 50

Transcript of sentencing --------------------------- 50 50
Reporter’s certificate (omitted in printing) ____  53 55
Clerk’s certificate ----------------------------------------  54 55

Proceedings in the Court of Appeals of the State
of Alabama, Judicial Department, 6 Div. 797 55 56

Assignment of errors......... ..........     55 56
Order of affirmance ----------------------------------------  57 57
Opinion, Harwood, J ------ --------------------------------- 58 58
Application for rehearing and order overruling _ 66 65
Proceedings in the Supreme Court of Alabama, 6

Div. 762 __________________________________  67 66
Petition for certiorari -------------------------------------  67 66
Order denying petition for writ of certiorari ___  72 69
Application for rehearing ---------------------   73 70
Order overruling application for rehearing ____  74 71
Clerk’s certificate (omitted in printing) -------------  75 71



*

e

*

1



INDEX 111

Original Print
Proceedings on petition for certiorari --------------  75a 72
Clerk’s certificate (omitted in printing) ------------ 76 72

II
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. James Albert Davis, No. 20779 ....................   1 73
Appeal bond (omitted in printing)--------------  1 73
Complaint ______________________________ 2 73
Motion to strike-------------------------------------- 2 74
Demurrers ______________________________ 3 75
Motion to exclude the evidence -----   5 77
Judgment entry --------------------------------------  8 81
Motion for a new trial and order overruling---- 10 83
Appeal bond to Court of Appeals (omitted in

printing) ___________ __ _______________ 12 86
Transcript of evidence (omitted in printing) — 14 86

Transcript of sentencing (omitted in printing) 51 t 86
Reporter’s and clerk’s certificates (omitted in

printing) -------------------------------------------- 56 86
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 796 58 87
Assignment of errors ----------------------------------  58 87
Order of affirmance ----------------------------   60 88
Application for rehearing and order overruling ... 61 89
Proceedings in the Supreme Court of Alabama, 6

Div. 761 _________________ —------------------  61a 89
Proceedings on petition for certiorari (omitted in

printing) ----------------------------------------------  61a 89
Petition for certiorari ---------------------------------- 62 89
Order denying petition for writ of certiorari (omit­

ted in printing) --------------------------    67 92
Application for rehearing (omitted in printing) 68 92
Order overruling application for rehearing (omit­

ted in printing)......... ...... ....................... ........... 69 92
Clerks’ certificates (omitted in printing) ----------  70 92





IV INDEX

Original Print
III

Record from the Circuit Court of the Tenth Judi­
cial Circuit of Alabama in aud for Jefferson 
Couuty in the case of The City of Birmingham
v. Roy Hutchinson, No. 20781 ---------------------  1 93
Appeal bond (omitted in printing) -----  1 93
Complaint ________________________________  2 93
Motion to strike------------------------------------------ 2 94
Demurrers________________________________  3 95
Motion to exclude the evidence ------------------------  5 97
Judgment entry -------------------------------------- 8 100
Motion for a new trial and order overruling----- 10 103
Appeal bond to Court of Appeals (omitted in

printing) _______________________________  12 105
Transcript of evidence ---------------------------------  14 106

Appearances ---------------------------   14 106
Testimony of Elwood K. Martin—

direct________________  16 107
cross _________________  17 108

Carl A. Schmid—
direct ________________  19 109
cross _______________  21 111

D. V. Kidd-
direct ________________   24 114
cross _________________  27 117
redirect -------------------1 31 120
recross _______________  32 121

Transcript of sentencing (omitted in printing) 34 122
Reporter’s and clerk’s certificates (omitted in

printing) -------------------------—----------------  39 122
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 798 . . 41 123
Assignment of errors _______________      41 123
Order of affirmance . ................................      42 124
Application for rehearing and order overruling

(omitted in printing) .................................    43 124
Proceedings in the Supreme Court of Alabama, 6

Div. 754 ................. ......................... ................... 43a 124
Proceedings on petition for certiorari (omitted in 

printing) ............................. ........ .....................  43a 124





INDEX V

Original Print
Petition for certiorari ___  44 12b
Order denying petition for writ of certiorari (omit­

ted in printing) --------------------    47 128
Application for rehearing (omitted in printing) .. 48 128
Order overruling application for rehearing (omit­

ted in printing) ______      49 —̂ H?8
Clerks’ certificates (omitted in printing) ......... —  50 128

IV
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. Robert J. King, No. 20783 .---  — 1 129
Appeal bond (omitted in printing) _________ , 1 129
Complaint____________ ______—---------------  2 129
Motion to strike ------------    2 130
Demurrers __________________________   3 131
Motion to exclude the evidence ____________ 5 133
Judgment entry ------     8 136
Motion for a new trial and order overruling---  10 139
Appeal bond to Court of Appeals (omitted in

printing) --------------------------------      12 141
Transcript of evidence (omitted in printing) ... 14 142

Transcript of sentencing (omitted in printing) 34 142
Reporter’s and clerk’s certificates (omitted in

printing) -----  — 39 142
Proceedings in the Court of Appeals of the State 

of Alabama, Judicial Department, 6 Div. 799 41 142
Assignment of errors ...........— ...................... .....  41 142
Order of affirmance . — ..............—.......................   42 144
Application for rehearing and order overruling .... 43 144
Proceedings in the Supreme Court of Alabama, 6

Div. 757 ______ ___ _______ -__________ --  43a 144
Proceedings on petition for certiorari (omitted in

printing) _________________________     43a 144
Petition for certiorari (omitted in printing) ............  44 144
Order denying petition for writ of certiorari (omit­

ted in printing) . . — ........ .....................  48 144
Application for rehearing (omitted in printing) 49 144
Order overruling application for rehearing (omit­

ted in printing) ___________________________  50 144
Clerks’ certificates (omitted in printing) --------------  51 144



(



VI INDEX

Original Print
V

Record from the Circuit Court of the Tenth Judi­
cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. Robert L. Parker, Jr., No. 20784 -----------------  1 145
Appeal bond (omitted in printing) ------------------- 1 145
Complaint _______________________________   2 145
Motion to strike------------------------------------------ 2 146
Demurrers------------------------------------------------- 3 147
Motion to exclude the evidence ----------------   5 148
Judgment entry --------------------------      8 152
Motion for a new trial and order overruling---  10 154
Appeal bond to Court of Appeals (omitted in

printing) ----------------------------------------------- 12 157
Transcript of evidence --------------------------------- 14 157

Appearances -------------------------     14 157
Testimony of B. R. Myers—

direct________________  16 158
cross _________________  17 159

Mrs. L. B. Gibbs—
direct ______________  20 162
cross _________________  21 163

Lloyd L. Stallings—
direct ________________  22 164
cross _________________  23 165
redirect ______________  27 168
recross _ _̂____________ 27 169

William West—
direct ________________  28 170
cross _________________  32 173

Transcript of sentencing (omitted in printing) 36 176
Reporter’s and clerk’s certificates (omitted in

printing) ______ .___ _______________  41 176
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 800 43 177
Assignment of errors _________________    43 177
Order of affirmance _________________    45 178
Application for rehearing and order overruling

(omitted in printing) ....................................    46 178





Original Print
Proceedings in the Supreme Court of Alabama, 6

Div. 756 __________________________________  46a 178
Proceedings on petitions for certiorari (omitted in

printing)----------------------------------------------------- 46a 178
Petition for certiorari---------------------------------- 47 179
Order denying petition for writ of certiorari (omit­

ted in printing)--------------------------------------  50 182
Application for rehearing (omitted in printing) „ 51 182
Order overruling application for rehearing (omit­

ted in printing) ----------- --------------------------  52 182
Clerks’ certificates (omitted in printing) ----------  53 182

VI
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. William West, No. 20791 ---------------------------  1 183
Appeal bond (omitted in printing) .....................   1 183
Complaint -------------------------------------------------  2 183
Motion to strike ------------------------------------------  2 184
Demurrers-------------------------------------    3 185
Judgment entry ------------------ -— --------------- 5, 187
Motion for a new trial and order overruling 7 189
Appeal bond to Court of Appeals (omitted in

printing) ------------------------------------------------ 9 192
Transcript of evidence (omitted in printing) 11 192

Transcript of sentencing (omitted in printing) 33 192
Reporter’s and clerk’s certificates (omitted in

printing) ----------------------------    38 192
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 804 40 192
Assignment of errors ......... ...........—............. - ...........  40 192
Order of affirmance ...... ............ .........-.......-..........  41 194
Application for rehearing and order overruling

(omitted in printing) ....... —------ ------------- --- 42 194
Proceedings in the Supreme Court of Alabama, 6

Div. 758 __________________________________  42a 194
Proceedings on petition for certiorari (omitted in

printing) .................... - ------- -------------- -------  42a 194
Petition for certiorari (omitted in printing) ............. 43 194
Order denying petition for writ of certiorari (omit­

ted in printing) ------------------------   46 194

INDEX v i i



I



van INDEX

Original Print
Application for rehearing (omitted in printing) .. 47 194
Order overruling application for rehearing (omit­

ted in printing)-------------------------------------- 48 194
Clerks’ certificates (omitted in printing) ----------  49 194

VII
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. Robert D. Sanders, No. 20787 ........................   1 195
Appeal bond (omitted in printing) ------------------- 1 195
Complaint ------------------------------------------------- 2 195
Motion to strike ------------------------------------------ 2 196
Demurrers ---------------     3 197
Motion to exelude the evidence ________________  5 199
Judgment entry_______    8 202
Motion for a new trial and order overruling..... 10 205
Appeal bond to Court of Appeals (omitted in

printing) _____ _ ______._______________ 12 207
Transcript of evidence - ..........................       14 208

Appearances __________________    14 208
Testimony of J. P. Caldwell—

direct ______________  16 208
cross _______________  17 210

Albert J. Pearson—
direct ______________  18 210
cross _______________  20 213

Transcript of sentencing (omitted in printing) 28 218
Reporter’s and clerk’s certificates (omitted in

printing) — ,....................................       33 218
Proceedings in the Court of Appeals of the State 

of Alabama, Judicial Department, 6 Div. 801 .... 35 219
Assignment of errors_________    35 219
Order of affirmance _______________      36 220
Application for rehearing and order overruling

(omitted in printing) ____   37 220
Proceedings in the Supreme Court of Alabama, 6

Div. 755 ........... _..........—............................. ......  37a 220
Proceedings on petition for certiorari (omitted in

printing) ----------------------------------------------  37a 220





INDEX IX

Original Print
Petition for certiorari---------------------------------  38 221
Order denying petition for writ of certiorari (omit­

ted in printing) -------------------   42 224
Application for rehearing (omitted in printing) .. 43 224
Order overruling application for rehearing (omit­

ted in printing) -------    44 224
Clerks’ certificates (omitted in printing) ......  45 224

VIII
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. Roosevelt Westmoreland, No. 20792 .....   1 225
Appeal bond (omitted in printing) ----------   1 225
Complaint ________________________________  2 225
Motion to strike ------------------------------------------  2 226
Demurrers -------------------------------------   3 227
Judgment entry --------------------------------    5 229
Motion for a new trial and order overruling ..... 7 231
Appeal bond to Court of Appeals (omitted in

printing) ________________________    9 234
Transcript of evidence (omitted in printing) . . 11 234

Transcript of sentencing (omitted in printing) 25 234
Reporter’s and clerk’s certificates (omitted in

printing)------- --     30 234
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 805 32 234
Assignment of errors----------------------------    32 234
Order of affirmance .................................       33 236
Application for rehearing and order overruling

(omitted in printing) ..........................     34 236
Proceedings in the Supreme Court of Alabama, 6

Div. 753 .......- ..... .............................. -..........  34a 236
Proceedings on petition for certiorari (omitted in

printing) .......—  — ..............  ........................... 34a 236
Petition for certiorari (omitted in printing) 35 236
Order denying petition for writ of certiorari (omit­

ted in printing) ....................................      38 236
Application for rehearing (omitted in printing) 39 236
Order overruling application for rehearing (omit­

ted in printing) — --------------------- ------ - ....  40 236
Clerk’s certificates (omitted in printing) --------------  41 236



_



X INDEX

Original Print

IX
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in aud for Jefferson 
County in the case of The City of Birmingham
v. Jessie Walker, No. 20790 -------------------------   1 237
Appeal bond (omitted in printing) -----------------   1 237
Complaint ______________________________   2 237
Motion to strike -----------------------------------------  2 238
Demurrers ________________________________  2 239
Motion to exclude the evidence ------------------------  5 241
Judgment entry------------------------------- ------ 8 244
Motion for a new trial and order overruling .........  10 247
Appeal bond to Court of Appeals (omitted in

printing) ____________________________  12 249
Transcript of evidence-----------------------------  14 250

Appearances ----------   14 250
Testimony of Richard C. Casey—

direct ______________  16 251
cross _______________  17 252

Jesse H. Walker—
direct ______________  20 255
cross _______________  23 258

Transcript of sentencing (omitted in printing) 28 261
Reporter’s and clerk’s certificates (omitted in

printing) ........ ..... ............. .........- ..................  33 261
Proceedings in the Court of Appeals of the State 

of Alabama, Judicial Department, 6 Div. 803 35 261
Assignment of errors ---------- ---•---------------- ---- 35 261
Order of affirmance ......     36 262
Application for rehearing and order overruling

(omitted in printing) ....... ........... ...... —....... 37 263
Proceedings in the Supreme Court of Alabama, 6

Div. 759 ........................... ................................ . 37a 263
Proceedings on petition for certiorari (omitted in

printing) ---------------------------------------------- 37a 263
Petition for certiorari -------------- ------------------- 38 263
Order denying petition for writ of certiorari (omit­

ted in printing) .—  ................. _ ........... ......  43 266
Application for rehearing (omitted in printing) 44 266





INDEX XI

Original Print
Order overruling application for rehearing (omit­

ted in printing) -------------------------------------- 45 266
Clerks’ certificates (omitted in printing)----------  46 266

X
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of The City of Birmingham
v. Willie J. Willis, No. 20793  _____________ 1 267
Appeal bond (omitted in printing) --------------  • 1 267
Complaint _____________________________  2 267
Motion to strike_________________________  2 268
Demurrers ________________________________  3 269
Judgment entry ------------------------------------------ 5 271
Motion for a new trial and order overruling..... 7 273
Appeal bond to Court of Appeals (omitted in

printing) _______________________________  9 276
Transcript of evidence (omitted in printing) — 11 276

Transcript of sentencing (omitted in printing) 25 276
Reporter’s and clerk’s certificates (omitted in

printing) -----------------------------------   30 276
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 806 32 276
Assignment of errors ----------------------   32 276
Order of affirmance ----------- ----- ------ ------------  33 278
Application for rehearing and order overruling

(omitted in printing) ----------------------------------  34 278
Proceedings in the Supreme Court of Alabama, 6

Div. 760 -----------------------------     34a 278
Proceedings on petition for certiorari (omitted in

printing) ........................................   34a 278
Petition for certiorari (omitted in printing) . 35 278
Order denying petition for certiorari (omitted in

printing) ............—....—........... —----------------  39 278
Application for rehearing (omitted in printing) 40 278
Order overruling application for rehearing (omit­

ted in printing) ............. .........-.....................----- 41 278
Clerks’ certificates (omitted in printing) ....   42 278
Order allowing certiorari -......................... -- 44 279
Stipulation as to printing of the record ............ 45 279





1

[fol. 11 [File endorsement omitted]

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 
CIRCUIT OF ALABAMA, IN AND FOR 

JEFFERSON COUNTY
No. 20780

T he City of B irmingham,

vs.
J ames Gober.

A ppeal B ond—Filed May 4, I960

The State of Alabama )
) City of Birmingham 

Jefferson County )
We, James Gober, principal and Jas Esdale sureties, 

acknowledge ourselves indebted to the City of Birmingham, 
a municipal corporation, in the sum of Three Hundred 
Dollars, for the payment of which, well and truly to be made, 
we bind ourselves, our administrators, and executors. But 
the condition of the above obligation is such, that whereas 
the above bounden principal was tried and convicted on the 
charge of

Count 1. Trespass After Warning Sec 1436 GCC and 
has prayed and obtained an appeal to the Circuit Court of 
Jefferson County, Alabama, from the judgment of the Re­
corder’s Court of the City of Birmingham, adjudging him 
to pay a fine of One Hundred no/100 Dollars, Costs Five 
Dollars; and to perform hard labor for ISO Days rendered 
the 4 day of April I960.

Now, if the said principal shall appear at present Term 
of the Circuit Court of Jefferson County, Alabama, and 
from term to term thereafter until discharged by law, then 
this obligation to be void, otherwise to remain in full force 
and effect. And as against this obligation we waive all





2

right under the laws of Alabama to claim any personal prop­
erty as exempt from levy and sale.

Witness out hand and seals this 4th day of April, 19G0.
James Gober (L.S.), 226 Johnson St., Jas Esdale 

(L.S.), 809 Xo 21st., By Lacey Alexander (L.S.), 
Atty In fact.

Approved 4 day of April, I960.
William Conway, Recorder of the City of Birming­

ham.

Counsel’s Note R e R ecord

The appeal bond in the Circuit Court printed in the 
Gober case is identical to the appeal bonds in the cases of 
the other 9 petitioners except for the names and addresses 
of the petitioners involved.

[fol. 2] [File endorsement omitted]

I n th e  C ircuit Court of the  
T en th  J udicial C ircuit of A labama

No. 20780

City of B irm ingham , a Municipal Corporation, Plaintiff,
vs.

J ames Goder, Defendant.

Complaint—Filed October 10, I960
Comes the City of Birmingham, Alabama, a municipal 

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





3

dining purposes and located within the building commonly 
and customarily known as Pizitz Department Store, lo­
cated at 1821 2nd Avenue, North, Birmingham, Alabama, 
after being warned not to do so, contrary to and in viola­
tion of Section 143G of the General City Code of Birming­
ham of 1944.

Watts E. Davis, Attorney for City of Birmingham.

I n t h e  Circuit Court of the  
T e n t h  J udicial C ircuit of A labama

No. 20780

City of B irmingham , 

vs.
J ames Gober.

M otion to S trike—Filed October 10, I960

Comes now James Gober, defendant in this cause, and 
moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following,^.sep­
arately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so 

vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend,

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, as 
a citizen of the State of Alabama, and of the United States, 
constitutes an abridgment of the freedom of assembly, 
speech and liberties secured to the Defendant, by the Con­
stitution and laws of the State of Alabama and the Four- 
[fol. 3] teenth Amendment of the Constitution of the United 
States of America.





4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, as 
applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section S24 of the General City Code of the 
City of Birmingham, as applied to this defendant, a Negro 
citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmond Pearson, Orzell Bill­
ingsley, Jr., Peter A. Hall, Oscar W. Adams, Jr., 
Attorneys for Defendant.

[File endorsement omitted]______

I n th e  C ircuit Court of th e  
T en th  J udicial Circuit of A labama

No. 20780

City of B irmingham ,

vs.
J ames Gober.

D emurrers—Filed October 10, I960
Comes now James Gober, defendant in this cause, and 

demurs to the complaint in this cause, and to each and every 
count thereof, separately and severally, and as grounds for 
such demurrer sets out and assigns the following, separately 
and severally:





1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu- 
[fol. 4] tion of this cause, in that no offense is charged which 
is cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this de­
fendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United 
States of America.

5. That Section 1436 of the 1944 General Citv Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this de­
fendant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech and 
assembly violative of rights and liberties secured the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
in (sic) unconstitutional on its face in that it is so vague as 
to constitute a deprivation of liberty without due process 
of law in violation of the provisions of the Fourteenth 
Amendment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of priv­
ileges and immunities guaranteed defendant as a citizen 
of the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, con­
stitutes a denial of equal protection of the laws in violation



.



6

of the Fourteenth Amendment to the Constitution of the 
United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar A\. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]

[fol. 5]
I n the  C ircuit Court of the  T en th  J udicial C ircuit 

o f  A labama

No. 20780

City of B irmingham , Plaintiff, 
versus

J ames Gober, Defendant.

M otion to E xclude the  E vidence—Filed October 10, I960
1. The complaint charging defendant, a Negro, with 

violation of 1436 of the General City Code of Birmingham 
of 1944, to-wit, an alleged trespass upon land after being 
forbidden to enter or remain after told to leave is invalid 
in that the evidence establishes merely that defendant 
was peacefully upon the premises of Pizitz, an establish­
ment performing an economic function invested with the 
public interest, as a customer, visitor, business guest or 
invitee, and there is no basis for the charge recited by 
the complaint other than an effort to exclude defendant 
from Pizitz Cafe because of his race or color; defendant, 
at the same time is excluded from equal service at the 
preponderant number of other similar eating establish­
ments in Birmingham, Alabama; thereby depriving him of 
liberty without due process of law and of the equal pro­
tection of the laws secured by the 14th Amendment of 
the United States Constitution.





7

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speak­
ing and protesting against the practice, custom and usage 
of racial discrimination in Pizitz, an establishment per­
forming an economic function invested with the public 
interest; that defendant peacefully was attempting to ob­
tain service in the facilities of Pizitz in the manner of white 
persons similarly situated, and at no time was defendant 
defiant or in breach of the peace and was at all times upon 
an area essentially public, wherefore defendant has been 
denied rights secured by the due process and equal protec­
tion clauses of the 14th Amendment of the United States 
Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Bir- 
[fol. 6] mingham, x\labama to permit defendant, a Negro, 
and other members of defendant’s race from enjoying the 
access to such stores, facilities and accommodations af­
forded members of other races; and that by this prose­
cution, prosecuting witnesses and arresting officers are 
attempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to the 
Constitution of the United States.

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Pizitz, a store 
open to the public, but had not been allowed to obtain food 
service on the same basis as that offered white persons, 
because of defendant’s race or color; and, that in fur-





8

i

%

therance of this racially discriminatory practice of Pizitz, 
defendant was arrested on the basis of race or color, under 
color of law, to enforce Pizitz’s racially discriminatory 
policy, thereby violating defendant’s rights under the equal 
protection and due process clauses of the 14th Amendment 
of the United States Constitution.

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a 
Negro, was arrested and charged 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, in that said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise defendant 
of the validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to defendant 
as to violate his rights under the due process clause of the 
14th Amendment of the United States Constitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to be on 
property open to the public after being asked to leave, 
because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
[fol.7] complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: Pizitz 
and from which defendant was barred because of his race 
or color; that such denial was in accordance with a policy, 
custom and usage of Pizitz, of operating such facilities 
and services on a racially segregated basis, which policy, 
custom and usage violates the due process and equal pro­
tection clauses of the 14th Amendment of the Constitution 
of the United States.





9

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempt­
ing to use a facility, Pizitz, open to the public, which was 
denied to him solely because of race or color; that Pizitz, 
was and is offering, for a price, to serve all members of 
the public with food; that this public facility Pizitz, is, 
along with others of a similar nature, performing a neces­
sary service for the public, which in fact, would have to be 
provided by the state if Pizitz and other like facilities were 
all to withdraw said service; that having determined to 
offer said valuable service to the public, Pizitz is required 
to provide such service in the manner of state operated 
facilities of a like nature, to-wit: That Pizitz may not 
segregate or exclude defendant on the ground of race or 
color, in violation of the due process and equal protection 
clauses of the 14th Amendment of the United States Con­
stitution.

Arthur D. Shores, Oscar W. Adams, Jr., J. Rich­
mond Pearson, Orzell Billingsley, Jr., Peter A. 
Hall, Attorneys for Defendant.

[File endorsement omitted]

I n  th e  C ircuit Court of th e  T en th  J udicial C ircuit 
of A labama

Appealed from Recorder’s Court 
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

City of B irm ingham , 

vs.
J ames Gober.

J udgment E ntry—October 10, I960

This the 10th day of October, 19G0, came Wm. C. Walker, 
who prosecutes for the City of Birmingham, and also came





10

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 
[fol. 8] 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
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 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 ac­
tion 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 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 
Birmingham, or to confess judgment with good and suffi­
cient 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.





11

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, perforin 
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 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 
[fol. 9] 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 lltli day of October, 19C0, 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.



.



12

I n the  Circuit Court of the  T e n t h  J udicial Circuit 
of A labama

No. 20780

City of B irmingham , a Municipal Corporation, Plaintiff,
vs.

J ames Gober, Defendant.

M otion for a N ew T rial— Filed October 11, 1960
Now conies the defendant, in the above styled cause, and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judg­
ment rendered on to-wit, the 11th day of October, 1960, 
and that this Honorable Court will grant the defendant 
a new trial, and as grounds for said Motion sets out and 
assigns the following, separately and severally:

1. That the Judgment of the Court in said cause is con­
trary to the law.

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
[fol. 10] law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the Judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, 

by the defendant to the introduction of evidence offered 
on behalf of the City of Birmingham, Alabama, in this case.



.



13

9. For the Court erred in overruling objections by tilt* 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

11. The Court erred in overruling defendant’s demurrers 
filed in this cause.

12. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

13. The Court erred in finding the defendant guilty of
violating the laws or ordinances of the City of Birmingham, ^
Alabama, in that the laws or ordinances, under which this -'V 
defendant was charged and convicted, and as applied to /  > ‘ 
this defendant, constituted an abridgment of freedom of 
speech violative of rights and liberties secured to the 
defendant by the First and Fourteenth Amendments to 
the Constitution of the United States of America.

14. That the Court erred in refusing to find .that the 
ordinance under which this defendant was being tried, as ' o 
applied to this defendant, constituted a denial of the equal , k 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
[fol. 11] Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion to 
exclude the evidence in this case.

C
K





17. That it appeared from the evidence that no owner 
of the premises involved, had caused the arrest and prose­
cution of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, with­
out first having a complaint from such owner, or other 
person in charge of such premises.

18. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant for trespass on private 
property.

20. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in the store.

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, J. Richmond Pearson, Oscar W. Adams, Jr., 
Attorneys for Defendant.

1/

Order Overruling

The foregoing Motion being presented in open court, 
this the 11th day of October, 1960; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.

Geo. Lewis Bailes, Circuit Judge.

[File endorsement omitted]





15

[fol. 12]
I n  th e  Circuit Court of t h e  T en th  J udicial Circuit 

o f  A labama

A ppeal B ond to Court of A ppeals—
Filed October 11, 1960

The State of Alabama )
)

Jefferson County )
Know All Men By These Presents, That we James Gober 
principal, and James Esdale & Willie Esdale as sureties, 
are held and firmly bound unto the State of Alabama in 
the sum of Three Hundred Dollars, for the payment of 
which well and truly to be made, we bind ourselves, our 
heirs, executors and administrators, jointly and severally, 
firmly by these presents; and we and each of us waive our 
rights of exemption under the Constitution and laws of 
the State of Alabama as against this bond.

The Condition of the Above Obligation Is Such, That 
whereas, the above bounden James Gober was on the day 
of Oct 11 1960, convicted in the Circuit Court of Jefferson 
County, Alabama, for the offense of Trespassing After 
Warning and had assessed against him a fine of One 
Hundred Dollars, together with the cost of this prosecution, 
and on the 11 day of October, 1960, on failure to pay fine 
was sentenced to perform hard labor for the County for
..........  days, and an additional term for the cost, at the
rate of seventy-five cents per day, and as additional punish­
ment imposed the defendant was sentenced to perform hard 
labor for the County for 30 days, from which sentence the
said ...........................................  has this day prayed and
obtained an appeal to the Court of Appeals of Alabama.

Now, if the Said James Gober shall appear and abide 
such judgment as may be rendered by the Court of Appeals, 
and if the judgment of conviction is affirmed, or the appeal 
is dismissed, the said James Gober shall surrender him­
self to the Sheriff of Jefferson County, at the County Jail, 
within fifteen days from the date of such affirmation or





16

dismissal, then this obligation to be null and void, otherwise 
to remain in full force and effect.

Given under our hands and seals, this the 11 day of Oct. 
1960.

James Gober (L.S.), James Esdale (L.S.), Willie Es- 
dale (L.S.), By A. E. Brooks (L.S.) Atty In Fact.

Approved: Julian Swift, Clerk of the Circuit Court of 
Jefferson County.

[File endorsement omitted]

Counsel’s N ote B e R ecord

The appeal bond to the Alabama Court of Appeals, 
printed in the G o b e r  case, is identical to the appeal bonds 
in the cases of the other 9 petitioners except for the names 
and addresses of the petitioners.

[fol. 13]
In th e  C ircuit Court of the  

T enth  J udicial Circuit of A labama

I n and for J efferson County

No. 20780

City of B irmingham , 

versus
J ames Gober.

Transcript of Evidence—October 10, 1960
I

Birmingham, Alabama 
Before: Honorable George L. Bailes, Judge.





17

A ppearances :

For the City, Mr. Watts E. Davis.
For the Defendants, Messrs. A. D. Shores, Oscar Bill­

ingsley, Jr., Peter A. Hall, Oscar W. Adams, Jr., J. Rich­
mond Pearson.

[fol. 15]
P ro ceed in g s

The Court: Are the defendants ready!
Mr. Shores: We are ready, Your Honor.
Mr. Billingsley: Your Honor, here is a motion to strike.
The Court: Are they identical ?
Mr. Billingsley: Y"es, sir.
The Court: The charges are identical and the motions are 

identical, is that right!
Mr. Billingsley: Y"es, sir.
The Court: I take it that a copy of the complaint has 

been served upon counsel for defendants ?
Mr. Davis: Yres, YTour Honor.
The Court: I take it that the motion to strike by the 

defendants has been served upon the Solicitor for the City?
Mr. Davis: Yes, sir.
The Court: Please let the motion to strike be overruled.
Mr. Billingsley: We take an exception, Your Honor. 

And next we have some demurrers we would like to file in 
each case.

The Court: All right, please let the demurrers be over­
ruled.

Mr. Billingsley: We would like to take exceptions.
Mr. Davis: If the Court pleases, we would like to invoke 

the rule.
(Witness Placed Under the Rule)



'



E. K. M a r t in , c a l le d  a s  a  w it n e s s ,  h a v in g  b een  f ir s t  d u ly  
s w o r n , t e s t if ie d  a s  f o l l o w s :

Direct examination.

By Mr. Davis:
Q. Will you state your name ?
A. E. K. Martin.
Q. Mr. Martin, by whom are you employed and in what 

capacity!
A. I am employed by the City of Birmingham as a Police 

Officer.
Q. And were vou employed bv the City of Birmingham 

[fol. 16] on March 31,1960,'sir? '
A. Yes, sir, I was.
Q. Did you have occasion on the morning of March 31, 

of this year, to visit the Pizitz Department Store?
A. Yes, sir, I did.
Q. Is that located in the City of Birmingham?
A. Yes, sir.
Q. I believe it is at Second Avenue and 19th Street, 

North?
A. Yes, sir.
Q. At about what time did you visit the store, Mr. 

Martin ?
A. It was approximately 10:50.
Q. Had you had a report of any disturbance or a com­

motion there at the store?
A. Yes, sir, we had.
Q. You went there in the performance of official duty 

then ?
A. Yes, sir.
Q. Did you have occasion to go to the Cafeteria or the 

eating or dining area there at Pizitz ?
A. Yes, sir, I did.
Q. When you got to the dining or eating area what did 

you find that was unusual or out of the ordinary?
A. Well, I found that the cafeteria part was closed to all 

customers and I found two Negro males sitting in the eat­
ing part of the cafeteria.

18





19

Q. Do you know tlie name of the two Negroes that were 
there ?

A. James Davis and James Gober.
Q. Do you see them in the Courtroom?
A. Yes, sir, that is them sitting behind Arthur Shores.
Q. What were they doing there, if anything, Ofiicer Mar­

tin?
A. They were sitting there just talking to one another.
Q. Did anyone say anything to either of these two defen­

dants in your presence or hearing there on that occasion?
A. No, sir, they did not.
Q. Did you place them under arrest?

[fol. 17] A. Yes, sir.
Q. Did you talk with any of the personnel of the Pizitz 

Store there in their presence or hearing that morning?
A. Not in their presence or hearing I did not, no, sir.
Q. I believe you testified here, did you, that you put 

them under arrest ?
A. Yes, sir.
Mr. Davis: I believe that is all.

Cross examination.

By Mr. Shores:
Q. Officer, I believe you said you were informed or you 

received a report that there was a disturbance at Pizitz?
A. Yes, I did.
Q. Are you a patrolman or were you at headquarters or 

in a squad car?
A. No, I am in the Traffic Department and I was working 

the corner of Second Avenue and 19th Street.
Q. Who made this report to you ?
A. It came from a superior officer.
Q. Was the superior officer there at Pizitz?
A. Yes, he was.
Q. Was he, where were you stationed when you received 

this report?
A. I was stationed at Second and 19th.
Q. You were not in Pizitz when you received the report?
A. No, I was not.





20

Q. How did you receive the report!
A. I received it by mouth from a superior officer.
Q. He just came by and told you that there was a dis­

turbance at Pizitz?
A. That is correct.
Q. And did he request you to go and check on the dis­

turbance ?
A. He ordered me to do so.
Q. Did any individual connected with the store request 

[fol. 18] you to do anything after you got there ?
A. They didn’t request me personally. They were talking 

to superior officers and none of them requested me to do 
anything.

Q. Who requested you to make these arrests ?
A. My immediate superior officer.
Q. What is your superior officer’s name?
A. Sergeant Dan Purvis.
Q. Did you observe any disturbance going on ?
A. I noticed James Gober and James Davis sitting there 

at the lunch counter in a booth.
Q. I believe you stated they were just talking to each 

other.
A. That is correct.
Q. Did you approach them and place them under arrest ?
A. Not immediately I did not. I remained at the cashier’s 

cage you might say until I was ordered to go back and do 
so.

Q. You were ordered by your superior officer?
A. That is correct.
Q. What charge did you place against the defendants?
A. Trespassing after warning.
Q. Did you warn them?
A. Did I warn them?
Q. Yes.
A. No, I did not.
Mr. Shores: That is all.
Mr. Davis: That is all, Mr. Martin.
(Witness excused)
Mr.Davis: Mr. Gottlinger.





21

J ohn I. Gottlinger, called as a witness, having been first 
duly sworn, testified as follows:

Direct examination.

By Mr. Davis:
Q. State your full name?
A. John I. Gottlinger.
Q. Mr. Gottlinger, by whom and in what capacity are 

you employed ?
[fol. 19] A. I am employed by Pizitz. I am Controller of 
the store.

Q. On March 31, 19G0, about 10 or 10:30 in the morning 
did you have occasion to observe two Negro boys seated in 
the lunch area or the eating area at Pizitz store?

A. Yes, sir.
Q. Did you have any conversation or make any statements 

or remarks to either of these two boys ?
A. I didn’t make any remarks to them.
Q. Did you hear any remarks or statements made by 

either of the defendants? 1
A. Yes, sir.
Q. What were those remarks or statements?
A. They were told that they could not be served in that 

area.
Mr. Hall: If Your Honor pleases we object. It is not 

responsive. The question was any remarks or statement 
made by the defendants.

The Witness: I am sorry I misunderstood him.
Q. Did you hear any remarks made or statements made 

by either of the defendants Davis or Gober?
A. One of them, a statement to the effect that we should 

call the police.
Q. Did anyone in your presence and hearing tell them 

they would have to leave the store, they couldn’t be served 
or words to that effect ?

Mr. Shores: I object to that, purely hearsay as to what 
someone told him unless he can connect it up properly.

The Court: Read the question.





22

(Question read)
The Court: I overrule the objection.
Mr. Hall: Judge, we would like to object further whether 

anyone, unless it is shown that anyone had the authority to 
tell them that. It might have been a customer.

Mr. Davis: I will amend that question.
The Court: I think that is correct.
Q. Did an employee of Pizitz Store have any eonversa. 

[fol. 20] tion in your presence ?
A. Yes, sir.
Q. With the two defendants ?
A. Pardon?
Q. With the two defendants?
A. Yes, sir.
Q. What was that conversation?
A. They were asked—
Mr. Hall: If Your Honor pleases, we would like to 

object to the question unless it is shown who the employee 
might be and whether they had some authority to say what 
was said or unless it is shown what the conversation was. 
Otherwise, I think it is irrelevant and immaterial and we 
object to it without a showing that any employee who 
might have said anything to these defendants in Mr. Gott- 
linger’s presence was an employee with some authority to 
say something pertinent to the issues involved here and 
what was said was pertinent to the issues involved. Other­
wise it is irrelevant and immaterial.

The Court: Did the person who spoke to the two defen­
dants work for the store?

The Witness: Yes, sir.
The Court: And were they authorized to serve or not 

serve the people in that part of the store ?
The Witness: Well the employee was not a waiter or 

waitress in the restaurant.
Mr. Davis: If the Court pleases, could I interject another 

question at this point.
Q. The person or persons that you heard have a conver­

sation with the two defendants was this person an employee 
of the store and was the conversation with reference to





23

whether or not they would receive service or whether or not 
they might or might not have to leave the premises or the 
area?

Mr. Hall: If Your Honor pleases, we object to any 
answer to chat question unless it can be shown that who- 
[fol. 21] ever this person was, whether or not he was an 
employee of this store had the right to speak for Pizitz on 
whatever the issues are involved here and if whatever was 
said is pertinent to the issues. As I understand it, Pizitz 
is a department store with employees of any number of 
departments and employees in one department have abso­
lutely no authority over other employees. You have some 
lease departments, don’t you?

The Witness: Yes, sir.
Mr. Hall: So just an employee of Pizitz would not have 

the authority to speak or to say anything in another de­
partment necessarily.

Mr. Davis: I withdraw the question.
Q. Who did you observe having a conversation on this 

occasion with the two defendants ? 1
A. Dick Pizitz.
Q. I beg your pardon?
A. Dick Pizitz.
Q. Dick Pizitz.
A. Yes.
Q. What is his affiliation with the company?
A. He is Assistant to the President.
Q. Assistant to the President ?
A. Yes, sir.
Q. What statement, if any, did he make to either or both 

the defendants?
A. He asked the defendants to leave the tea room area, 

told them that they could be served in the Negro restaurant 
in the basement.

I Q. And I believe 1 understand you to say that you made
no statement whatever to them ?

A. No, sir.
Q. That is all—one other question—did they leave when 

Mr. Pizitz asked them to leave?
A. No, sir.





24

Q. And do you know whether both remained there until 
[fol. 22] the officers arrived?

A. They remained until the officers came.

Cross examination.

By Mr. Hall:
Q. Did Mr. Pizitz simply ask them to leave the tea room 

area and tell them they might be served in the basement or 
did he order them—

A. He told them that they couldn’t be served there and 
we had facilities in the basement to serve them.

Q. Did he tell them—
A. He told them it would be against the law to serve 

them there.
Q. He told them it would be against the law to serve them 

there. What law did he have in mind, do you know!
A. I don’t know.
Q. He didn’t say it was against Pizitz policy to serve 

them there ?
A. He used the term “we cannot serve you here.”
Q. And you assume that he meant it was against the 

law?
A. I assumed that.
Q. Is that because you know that there is a law of the 

City of Birmingham requiring separate facilities?
Mr. Davis: We object to that, calls for a conclusion.
The Court: I would leave it out.
Q. Do you know of your own knowledge that there is 

such a regulation of the City of Birmingham?
Mr. Davis: We object to that, if the Court pleases.
The Court: Would any witnesses knowledge of the law be 

material?
Mr. Hall: Possibly, Your Honor. It is our theory of this 

case it is one based simply on the City’s segregation or­
dinance 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.





25

[fol. 23] The Court: Aren’t we dealing with laws instead 
of policies ?

Mr. Hall: As I understand it it is the theory of the City’s 
case, it is trespass after warning. Our contention 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 segregation 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.

The Court: The action of Pizitz is not material as I 
conceive it.

Mr. Hall: Our theory of the case, we assume that Pizitz 
action was very material and any justification these men 
have would be based on their right.

The Court: I didn’t mean factually, I meant as a matter 
of policy. I heard you use the word policy, Mr. Pizitz policy 
would not be material as I conceive this.

Mr. Hall: If Your Honor pleases, may I say this. We 
are not arguing with the Court. What I say unless Mr. 
Pizitz had ordered these men out of the restaurant facilities 
they would not have been arrested and could not have been 
prosecuted under the statute.

The Court: Is there any divergence between you and the 
City on that theory?

Mr. Hall: I don’t know, sir.
The Court: Unless they had failed to comply with some 

trespass, some warning after trespass. Isn’t that what it 
is?

Mr. Hall: I suppose so.
The Court: Is that the issue. Is that the thing which is 

[fol. 24] germane?





2 6

Mr. Hall: It certainly is, Your Honor.
Mr. Davis: I want to object to the references to the 

segregation ordinance. This ordinance has nothing to do 
with the matter of segregation and applies to anybody on 
the premises of another who is asked to leave and re­
fuses. Segregation is not mentioned in the ordinance.

The Court: 'Wouldn't it apply equally to everybody. I 
overrule the objection.

Mr. Hall: Did you say you overruled the objection and 
may I continue ?

The Court: Yes.
Q. Are you aware of the ordinance?
A. I have heard of it.
Mr. Davis: I am not sure I understand. He is to testify 

as to what the ordinance is ?
The Court: I don’t believe the witness’ knowledge of the 

law involved is competent.
Mr. Hall: Well we withdraw that question.
Q. Did you or any official at Pizitz call the police?
A. No, sir.
Q. Did you subsequently make a complaint to the Police 

Department?
A. I was called, a policeman came up to me and asked 

me if I had witnessed the affair and I don’t know if I was 
complaining or what. He asked me my name and who wit­
nessed it and I was the one.

Q. So you didn’t call him, he called you ?
A. He didn’t call me. He came in there.
Q. Called you and asked you if you saw it ?
A. Yes, sir.
Q. At this time had the defendant been put under arrest?
A. What was the question ?
Q. At this time had the two young Negro boys been ar­

rested?
A. Yes, sir.
Q. They had already been arrested ?

[fol. 25] A. I don’t know. They were taking them out of 
the restaurant.





27

Q. That was before the policeman talked to you about 
whether or not you witnessed i t ?

A. Yes.
Q. So far as you know no official at Pizitz had filed a 

complaint with the Police Department at that time?
A. That is right.
Mr. Hall: Thank you.

Redirect examination.

By Mr. Davis:
Q. Mr. Gottlinger, do you have any knowledge on the 

subject of whether anyone else called the police in this 
case?

A. No, I don’t know.
Q. Can you say as a fact you know no official at Pizitz 

called the police ?
A. I could say it is a fact to my knowledge no official at 

Pizitz called the police.
Q. You would not say they did not?
A. I couldn’t say they did not.
Mr. Davis: That is all.

Recross examination.

By Mr. Hall:
Q. One other question. Have you since learned that ayy 

official at Pizitz did make such a complaint?
A. No, I haven’t.
Mr. Hall: Thank you.
Mr. Davis: Mr. Pierce.
The Court: Is that all for Mr. Gottlinger?
Mr. Davis: Yes, sir. May he he excused?
The Court: Yes, you may be excused.
(Witness excused.)





2 8

[fol. 2G] C. L. P ierce, called as a w itness, having been 
first duly sworn, testified as follows:

Direct examination.

By Mr. Davis:
Q. Are you Detective C. L. Pierce?
A. Yes, sir.
Q. Are you with the City of Birmingham?
A. Yes, sir.
Q. Were you with the City of Birmingham on April 1, 

I960?
A. Yes, I was.
Q. I will ask you if on April 1, 1960 you had occasion to 

talk with either or both the following, James Gober, James 
Albert Davis?

A. I did, yes, sir.
Q. 'Where did that conversation take place?
A. At the City Hall.
Q. Was that about ten or 10:20 in the morning of that 

day?
A. It was.
Q. Was James Albert Davis’ father present on that occa­

sion?
A. He was.
Q. Is he a Minister here in the City?
A. He is.
Q. I will ask you if on that occasion you asked James 

Albert Davis if he was arrested in company with anyone 
else on March 31, I960 and if he answered yes, James 
Gober.

A. That is right.
Q. I will ask you if you asked him if he was a student, 

that is asked James if he was a student at Daniel Payne 
College and he answered yes, sir. I will ask you if you 
asked him?

A. That is right.
Q. I will ask you if you asked him if they had had a 

meeting at the home of Reverend Shuttlesworth?
Mr. Shores: Your Honor, we want to object to that line 

of questioning. He is asking about a conversation he had





29

with the defendant on April 1, and this incident occurred 
on March 31. He is not asking any questions with respect 
to trespass.
[fol. 27] The Court: Would it be the day following?

Mr. Davis: The day following, they had a discussion with 
the defendant about what took place, if the Court pleases, 
on the prior day, and what arrangements they had made. 
It all sheds light on what took place leading up to the 
sequence of events regarding the corpus delicti.

The Court: I assume anything Officer Pierce said to 
James Albert or to James Gober and that they said to him 
on the day following the arrest might be in close enough 
proximity to be competent.

Mr. Hall: If Your Honor pleases, if what Detective 
Pierce is about to testify to is in the nature of some con­
fession or something else we would like to examine the 
detective on Voir Dire before it comes in. We don’t know 
what he is going to talk about and we don’t know whether 
it is admissible.

Mr. Davis: He is perfectly entitled to that. I neglected 
to lay a predicate. I will be happy to do it.

Q. On the occasion of this statement which Janies Gober 
and James Albert Davis made in your presence and in the 
presence of James Albert Davis’1 father at the City Hall 
on April 1, 1960 was there any threat of bodily harm if 
they did make a statement or did not make a statement or 
any promise of reward or hope of reward if they did so. 
Were they told it would be better if they did or worse for 
them if they did not make a statement on that occasion?

A. No, sir.
Q. On this occasion did James Albert Davis or James 

Gober tell you that they had a meeting prior to their 
going to Pizitz?

Air. Hall: If Your Honor pleases, we object. We haven’t 
established that this is admissible yet. Counsel has asked 
if there was any threats. 1 didn’t hear Mr. Pierce’s an­
swer.

Mr. Davis: He said there was not.
Mr. Hall: We would like to go further and offer some­

thing in refutation.





30

[fol. 28] Examination on voir dire.

By Mr. Hall:
Q. Detective Pierce, you had placed them under arrest?
A. They were under arrest. I hadn’t arrested them.
Q. Had they been allowed bond or bail at that time!
A. No, I don’t think they had.
Q. Isn’t it a fact that arrangements had been made to 

bond them out but they were not released, had not been 
released at that time?

A. I can’t say that. I can’t answer that.
Q. They were not at the City Jail but at the City Hall?
A. That is right.
Q. They had been in jail overnight, is that true?
A. They had.
Q. And you are not aware, you don’t know whether a 

bonding company or official of a bonding company had 
been attempting to bail them out for the past twelve hours’ 
prior to that time?

A. I couldn’t say.
Q. Did you tell them that they were seriously involved in 

some infraction of the law and cooperation with the City 
was necessary for them to get free, to be able to get free 
and go back to school?

A. No, I didn’t. Reverend Davis had talked to them.
Q. You hadn’t done that yourself?
A. He talked to them. What he said I don’t know.
Q. Had you talked to Reverend Davis and told him they 

were seriously involved?
A. I stated to him what they were charged with and I 

told him I would like for them to tell me the truth about 
what happened.

Q. At this time did they have a lawyer present?
A. Not at the time they made the statements.
Q. They didn’t have a lawyer present at all?
A. No.
Mr. Hall: If Your Honor pleases, I would like to put 

one of the defendants on the stand for the purpose of 
[fol. 29] putting in a little rebuttal testimony with refer-



.



31

ence to the voluntariness of whatever they may have said 
before it is admitted.

The Court: Any objection on the part of the City!
Mr. Davis: I think there is a proper place for that and 

not on Voir Dire. I think he should put his witnesses on 
the stand at the proper time. We have this witness to 
testify as to what the facts are.

Mr. Hall: If Your Honor please, in this instance the 
Voir Dire is to decide whether or not this confession can 
come to the Court or Jury, if we had one. Once what is 
alleged to have been said is given to the Court or Jury 
it would make no difference later on if we showed it was 
voluntary or involuntary. As I understand the purpose 
the Voir Dire is to be done out of the presence of the 
Jury if you have one, the testimony for and against is put 
at that time before the Court in order to ascertain whether 
or not whatever is alleged to have been said was voluntary. 
Most of the Alabama cases where there has been a refusal 
to allow a defendant to testify on that one point and that, 
one point only has been cited as error rather than offer 
the defendant generally and subject him to general cross- 
examination. So the only thing we are attempting to as­
certain now as I understand it, I don’t know what he is 
going to bring out here but whatever the nature of the 
confession is we want to know whether it was done under 
duress, whether or not there was any promise. The detec­
tive says there was not. AVe want the defendants to say 
whether or not there were any promises or threats and 
the Court can decide whether or not whatever they said was 
voluntary or involuntary.

Mr. Davis: AVe withdraw any objection if he wants to 
take them now.

The Court: Do you want to finish with the Captain 
first?

Mr. Davis: AA'hatever he wants is agreeable with the 
City.

(AATtness temporarily withdrawn.)





32

[fol. 30] J ames E dward Gober, called as a w itness, having  
been first duly sworn, testified as follows:

Direct examination.

By Mr. Hall:
Q. What is your name?
A. James Edward Gober.
Q. Are you a defendant in this case?
A. Yes, sir.
Q. Did you on April 1, last talk to Detective C. L. Pierce 

you see sitting there?
A. Yes, sir.
Q. Before talking with him what had occurred, that is 

what happened on March 31. "Will you tell us what hap­
pened on that date?

A. I was arrested on the 31st and taken from the jail and 
taken to the City Hall.

Q. You were taken to the jail March 31, what time?
A. I can’t exactly tell.
Q. Was it in the morning?
A. In the morning.
Q. In the morning of March 31?
A. Yes, sir. >
Q. Did you know of anyone at that time attempting to 

get you out on bail ?
Mr. Davis: We object to the bail procedure.
The Court: I believe that would be incompetent.
Mr. Hall: If Your Honor pleases we take an exception 

to that ruling because it is our contention that the mere 
holding in jail unnecessarily is a form of intimidation and 
the cases have so held.

The Court: Let the ruling stand.
Mr. Hall: Exception.
Q. On April 1 you talked with Detective Pierce. Was 

that the first time?
A. That was the second time.





33

[fol. 31] Q. That was the second time, when was the first 
time?

A. It was after we had been arrested.
Mr. Davis: Will you talk a little louder.
The Witness: After we had been arrested.
Q. On the day that you were arrested?
A. Yes, sir.
Q. On that day did he threaten you?
A. Xo.
Q. Did he tell you anything about the seriousness of 

whatever offense you were alleged to have perpetrated?
A. Xo, not on that day.
Q. Did he make you any promise if you would tell him 

anything ?
A. On the day of arrest, the first time I spoke to him?
Q. Yes.
A. Xo, he didn’t.
Q. On the second occasion April 1, did he threaten you 

or make you any promises?
Mr. Davis: I am going to object if the Court pleases to 

the leading question. I think he can accomplish it without 
putting the words in the witnesses mouth.

The Court: Wouldn’t it be better to allow the witness to 
say what his words were and what Officer Pierce’s words 
were?

Q. We will rephrase the question. Will you tell the 
Court what did happen, what Officer Pierce said to you on 
April 1?

A. On April 1, we were taken in and questioned one-by- 
one and I think 1 was the first one that was in jail at the 
time, and he asked us to tell the truth and if we did tell 
the truth that we would be, if we pleaded guilty they 
would try to help us, they would ask the Judge to let us 
off. In other words, it was a promise if we pleaded guilty  
they would try to help us.

Mr. Hall: That is all.





34

Cross examination.»
By Mr. Davis:

Q. What time did you arrive at jail on March 31? 
[fol. 32] A. I can’t exactly tell the time.

Q. Was it about lunchtime?
A. It was in the morning.
Q. And what time did you go to the City Hall?
A. The following day, the City Hall. We didn’t go on 

the 31st at the time we were arrested.
Q. I am talking about the next day?
A. On the 1st?
Q. When you had the conversation with Mr. Pierce.
A. On the 1st of April it was in the morning also. I can’t 

say exactly, tell the time. I believe it was in the morning.
Q. You know Reverend Davis, don’t you?
A. Yes, sir, I do.
Q. I believe he is the father of the boy that went with 

you to Pizitz, isn’t he?
A. Yes, sir.
Q. Didn’t, hadn’t you counselled with Reverend Davis, 

hadn’t you and your cohort on this occasion, his son, dis­
cussed the matter with Reverend Davis?

A. Us two individuals?
Q. You and Davis?
A. Us two individuals, no.
Q. You had not seen him prior to the time you went to 

the City Hall on the second day ?
A. I didn’t see him until we were released.
Q. Do I understand you to say you talked to Mr. Pierce 

one-by-one on the first day of April ?
A. Yes, I was taken first and then the others. I think 

the others, I don’t know whether they were together there 
but I was by myself talking to Mr. Pierce.

Q. Who was present in the room?
A. Reverend Davis and another detective, I think, I 

assume he was a detective.
Q. Reverend Davis is a colored man, isn’t he?
A. Yes, sir.





35

[fol. 33] Q. Now you say that Detective Pierce said if 
you pleaded guilty he would try to help you.

A. He said they would try to help us.
Q. Who is they?
A. I don’t know. He used the word they. In other words 

we, he said we will try to help you.
Q. Did he say he could get you off on this thing?
A. He just said he would ask the Judge.
Q. What did he say he would ask the Judge to do?
A. In other words, he said he would ask the Judge, in 

other words drop the case if we would plead guilty.
Q. Did he use those words, “Drop the case?”
A. No, sir, the exact words I can’t tell you. Bat, in my 

words that is how I took it.
Q. Now what did Reverend Davis say to you on that 

occasion?
A. Reverend Davis I don’t think he said anything. All 

he asked us was to tell the truth about the situation.
Q. To tell the truth about the situation and what did 

you tell the Reverend, you were going to tell the truth?
A. I told him that I was.
Q. That is when you first came in the room, wasn’t it?
A. Yes, it was.
Q. The first person you talked with was Reverend Davis?
A. At the jail.
Q. At the City Hall when you went in the room?
A. No, the first person I talked with when I went in the 

room was Detective Pierce.
Q. Did he walk out of the room and leave you and the 

Reverend in there alone for awhile?
A. No, he didn’t.

, Q. Where were you sitting at a table?
A. I was sitting at the door.
Q. Was there a table there?
A. I think there is several tables.
Q. You spoke to the Reverend, didn’t you?

[fol. 34] A. No, not personally I didn’t.
Q. He asked you to tell the truth. Was that after Mr. 

Pierce had talked to y o u ?

A. No.
Q. That was before Mr. Pierce talked to you?





36

A. He told all of us to tell the truth.
Q. “Where did all of you meet with Reverend Davis?
A. He met with us in jail.
Q. Over at the southside?
A. No, in the City Hall.
Q. Was that the morning of April 1?
A. The morning of April 1, yes, sir.
Q. Didn’t he talk with you in a room together?
A. No, nine of us.
Q. AYere you in a room together?
A. Yes, sir.
Q. And the nine of you and Reverend Davis sat around 

and had a conference?
A. I wouldn’t exactly call it a conference.
Q. You sat and discussed the matter, conferred?
A. Yes, sir.
Q. He advised each one of you to tell the truth?
A. Yes, he did.
Q. It was after the meeting with the nine of you with 

Reverend Davis that you went in and talked to Detective 
Pierce?

A. Reverend Davis left afterwards, and one of the de­
tectives came in and he said he would like to question us 
about it and he told me, in fact he wanted to talk to me 
first and he chose me first, not voluntarily. He told me to 
come first and I went in.

Q. Why did he want to talk to you first? Did he figure 
you were the most honest one in the crowd?

A. I don’t know. I kind of thought of that myself.
Q. The nine of you and Reverend Davis met and then 

you went and talked to Detective Pierce and Reverend 
Davis went with you, did he not?
[fob 35] A. He was already in there. One of them said 
he had already left. And five to ten minutes later they 
came and got us individually and after they questioned me 
they took me back to the cell.

Q. AVho was it that later asked you to change your testi­
mony?

A. Asked me to change it?
Q. Yes, before you come to Court?





37

Mr. Hall: If Your Honor pleases, we object to that ques- 
tion. It has not been established anybody asked him to 
change any testimony.

Mr. Davis: I withdraw the question.
Q. Who-all was present with you when Detective Pierce 

promised you in your words which you don’t remember 
exactly that lie would help you if you pleaded guilty?

A. I think Reverend Davis and the other detective was 
the only ones.

Q. Did he threaten to make it any worse for you if you 
failed to make a statement?

A. No. In other words it was up to me voluntarily to 
do what I wanted to do in other words.

Q. You volunteered to come clean and make a clean 
breast of it?

A. That is the idea he gave me, if I wanted to do it 
I did it, and if I didn’t I didn’t have to. He made the sug­
gestion it was a promise if I pleaded guilty.

Mr. Davis: That is all. Thank you.
The Court: Thank you, James, you may go.
Mr. Hall: If Your Honor pleases it is clearly shown that 

there was a promise made if they would tell the truth about 
whatever it is Detective Pierce wanted them to tell the 
truth that the City of Birmingham in the person of Detec­
tive Pierce would intercede and try to get the Judge to 
go easy on them and dismiss the charges. So there was 
a promise held out for whatever they are trying to in­
troduce and we insist and submit to Your Honor that 
whatever it is was involuntary in nature and clearly in­
admissible.
[fol. 36] The Court: In the light of James’ language that 
it was left up to me I will let the officer say what James 
said.

Mr. Hall: We want to except to Your Honor’s ruling.

C. L. P ierce , recalled as a witness, having been pre­
viously duly sworn, testified further as follows:

The Court: What they both said of course.





38

Direct examination (continued).

By Mr. Davis:
Q. Officer Pierce, did you at any time did you tell James 

Gober that you would intercede in his behalf or words 
to that effect or that you thought it would go easier on 
him if he made a clean breast of this thing and told the 
truth about it?

A. No.
Q. Never did at any time?
A. No.
Q. Have you at any time helped them or interceded with 

the Court?
A. No.
Q. Or anyone else in his behalf to help him out?
A. I let Reverend Davis sign his bond.
Q. On this occasion did Gober or Davis or either in the 

presence of the other tell you that they had had a meeting 
at Reverend Shuttlesworth’s house?

Mr. Hall: If Your Honor pleases, we object to the phras­
ing of this question. This is direct examination and it is 
clearly leading.

Mr. Davis: I will rephrase the question.
Q. Did either Gober or Davis make any statement or 

remarks concerning a meeting held where they were in' 
attendance prior to this demonstration, the day prior to 
the demonstration or the sit-ins?

A. They did.
[fol. 37] Mr. Hall: We object to that question and to that 
answer, Your Honor.

The Court: Leave it in.
Mr. Hall: It is immaterial. Our objection is predicated 

on the fact that the question and answer are both clearly 
immaterial. The only issue involved here is whether or 
not this man is guilty of trespass after warning and a meet­
ing at anybody’s house at no time has any materiality.

The Court: Please leave the question and answer in the 
record.





39

Mr. Hall: We want an exception to that.
Q. Did they state or either of them state that they had 

received instructions as to what to do when they arrived 
at certain downtown stores on the demonstration?

Mr. Hall: If Your Honor pleases, we object to the ques­
tion, not only to the question and the way it is phrased 
it is leading and suggestive and it is immaterial and irrele­
vant and has no bearing on this issue.

The Court: How would it do to let the officer now say 
what he said and what the defendant said, if anything.

Mr. Davis: That is quite all right.
Mr. Hall: Well we object to any question with reference 

to what meeting, what instructions any time, any place. 
The only issue in this case so far as this defendant is con­
cerned is whether or not he was on the premises of Mr. 
Pizitz in this instance and refused to leave after warning.

The Court: Well the Court thinks, with all deference to 
all parties that if this officer and those two defendants had 
a conversation that every word either one of the three of 
them said at that time and place is competent and rele­
vant. Now that is what the Court thinks. It could he 
wrong but I will let it be put in the record.

Mr. Hall: We want an exception, Your Honor.
Q. Did either of them on this occasion and in each other’s 

presence tell you that the day prior to these sit-ins—
[fol. 38] Mr. Hall: If Your Honor please.

The Court: AYe are getting away from a repetition of 
the conversation. You have laid a predicate. You have 
put in the record in fact that the two defendants made state­
ments to this witness and that this witness did nothing 
either positive or negative to cause them to make a state­
ment. Now the next question is what did he say to them 
and what did they say to him? Will you tell the Court 
what you said to these two defendants on the occasion at the 
City Hall?

A. I talked to them separately. I think, my best recollec­
tion is that I talked to James Davis fust. He came into 
the room and I asked him if he wanted to make a state­
ment and answer my questions and tell what happened





40

and he said he did. And I then asked him if he had been, 
or -where he went to school and he said he went to Daniel 
Payne College. And he told me that on Friday night he 
went from Daniel Payne College to Reverend Shuttles- 
worth’s house and when he arrived there there were several 
other people there, and named other defendants in the 
case. He said that Reverend Billups was there, Reverend 
Shuttlesworth and Reverend Shuttlesworth’s wife and that 
he was carried from Payne College to Reverend Shuttles­
worth’s house by either Reverend Sliuttleswortli’s wife or 
Reverend Billups—I believe he said Reverend Billups. 
There was two cars. On arriving there there was a sit- 
down demonstration which was considered or discussed at 
that meeting that night and volunteers were asked for and 
both Davis and Gober both said they volunteered to par­
ticipate in the sit-down demonstration and that they were 
assigned stores to go to at a certain time and they said 
they did agree.

He stated, they both stated they were assigned and 
volunteered to go to Pizitz and that on the time agreed 
upon they did go to Pizitz and sat down at a lunch counter 
and that they remained there until the officers came in 
and arrested them, and that they made no effort and did 
not intend to leave until they were arrested, and that the 
purpose of that thing was to stay there until they were 
arrested. And they stated when they sat down they were 
[fol. 39] denied service there and asked to leave.

Q. Did they state whether or not they had instructions 
to do certain things after they arrived at the store or 
when they were to leave or anything on the subject?

Mr. Hall: If Your Honor pleases, for the record we 
object.

The Court: Excuse me a minute. It might be a little 
leading. If we could get back to the framework of having 
the witness say what he said and what each of the defen­
dants said I believe we would be clearer.

Q. Did you ask either of the defendants if they had 
any specific instructions as to the length of time they were 
supposed to stay in the store?





41

A. Both defendants said they were supposed to stay in 
the store and did stay until the officers arrested them and 
carried them out.

Q. Did they indicate that they had any instructions as to 
what to do in the event they were asked to leave?

Mr. Hall: If Your Honor pleases we object to these 
leading questions.

Mr. Davis: I just asked if they said they had any in­
structions as to what to do.

The Court: Let him answer.
Mr. Hall: We except.
A. They 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.

Mr. Davis: That is all.

Cross examination.

By Mr. Hall:
Q. Detective Pierce, they were arrested at a white lunch 

counter, were they not?
A. That is right I assume they were.
Q. There are colored lunch counters in the store?
A. I can’t answer for that particular store. I am not 

sure.
Q. You don’t know whether they were arrested at a 

[fol. 40] white lunch counter or not ?
A. I didn’t arrest them. So I assume they were arrested 

there. 1 don’t know.
Mr. Hall: That is all. If Your Honor pleases we move 

to exclude all of this witness’ testimony as being irrelevant, 
immaterial and as being absolutely outside of the issues 
in this case.

The Court: Overruled.
Mr. Hall: We want to take an exception, Your Honor.





42

The Court: Anything further from Captain Pierce? If 
not, you are excused, sir.

Mr. Davis: If the Court pleases the City rests.
The Court: The hour being what it is what would be 

the pleasure of counsel?
Mr. Adams: I have a motion to file with the Court. T 

would like to let the City Attorney look at this because I 
do not have copies and then I will file it with the Court.

Judge, this is a motion to exclude the evidence against 
these two defendants Gober and Davis on the ground that 
the City has not made out a case against them under the 
ordinance of the City of Birmingham for that the evidence 
indicates clearly that these people, these defendants were 
on the premises of Pizitz, that they were peacefully sitting 
at the so-called white lunch counter, and that the laws 
of the United States and Constitution do not forbid people 
to peacefully assemble and demonstrate to gain their rights; 
that the defendants were customers of Pizitz, that they 
had a right to enjoy the facilities of Pizitz on an equal 
basis with white persons; that there was no disorderly 
conduct involved here.

Furthermore, looking at the face of the Statute itself 
there can be no violation of this Statute because on the 
face of the Statute it allows a person to be guilty thereof 
by the warning of any individual. It doesn’t specify that 
the warning has to come from the owner or his agents 
operating the store. To be guilty of a criminal violation 
of Section 1436 of the General City Code of Birmingham 
[fol. 41] merely upon the warning of anybody to move or 
to leave certainly is the height of unconstitutionality and 
there is no basis upon which to figure any charge of that 
nature.

The contention of the defendants in this case is simply 
that they were rightfully on the premises, that it was a 
public place, Pizitz, and that they went there asking for 
services which Pizitz did afford to members of the public, 
and that the only reason they were told to leave was be­
cause of their color, and that therefore the defendants 
could not be guilty of violation of the City Statute, trespass 
after warning, for the Constitutional grounds as well as 
for the inadequacy of the City Ordinance itself.





43

Furthermore, there is no showing in this case, Your 
Honor, that there was any warning by any official of 
Pizitz Store in his official capacity to do the particular 
thing it is claimed that they did do. So, therefore, we 
contend that there could not be a violation of the City 
Ordinance which is unconstitutional on its face and it is 
unconstitutional in its application and therefore these de­
fendants should be discharged.

The Court: I overrule the motion to exclude the evi­
dence.

Mr. Shores: We except, Your Honor.

J ames A lbert  D avis, called as a witness, having been 
first duly sworn, testified as follows:

Direct examination.

By Mr. Adams:
Q. State your name and address?
A. James Albert Davis, 208 West Court, Birmingham, 

Alabama.
Q. What is your race?
A. Negro.
Q. Negro? 1 
A. Yes, sir.
Q. Did you on March 31, have occasion to visit a depart­

ment store in the City of Birmingham?
A. Yes, I did.
Q. What was the name of the said store?

[fol.42] A. Pizitz.
Q. What was the nature of your business?
A. I went to shop.
Q. Did you shop?
A. Yes, I did.
Q. What did you purchase?
A. Socks and toothpaste, handkerchief.
Q. Socks and toothpaste and a handkerchief?
A. Yes, sir.





44

Q. At this time did you make other purchases or attempt 
to make other purchases in Pizitz Department Store?

A. I did attempt to make some. I attempted to go up 
and eat.

Q. You attempted to go up and eat?
A. That is right.
Q. Where did you go?
A. I went up on the mezzanine.
Q. Did you see any signs that said, “White and Colored?” 
A. No, I didn’t.
Q. When you reached the mezzanine what did you do? 
A. I sat down.
Q. Were there other people sitting at this time?
A. Yes, there were.
Q. What was the race of the other people?
A. They were white.
Q. White?
A. That is right.
Q. Did you attempt to order or did you order?
A. We attempted to but we didn’t.
Q. Why didn’t you?
A. Well the waitresses they would not come over to us 

so we could order anything.
Q. Did anybody ever come over where you were sitting? 
A. One man came over, yes.

[fol. 43] Q. Did he identify himself?
A. No, he didn’t.
Q. He didn’t identify himself at all?
A. No, he didn’t.
Q. Did he tell you his capacity, his position ?
A. No, he didn’t tell us anything.
Q. He didn’t tell you anything?
A. Nothing about his position.
Q. Yv hat did he say?
A. He told us that there was a place where Negroes 

could be served.
Q. That there was a place where Negroes could be served ? 
A. That is right.
Q. And this was at Pizitz?
A. That is right.
Q. Did he say whereabouts?





45

A. No, lie didn’t.
Q. Just downstairs?
A. Downstairs.
Q. In the same store you were at that time?
A. In the same store we were at that time, yes, sir.
Q. Let me ask you a question. You said he didn’t identify 

himself?
A. No, he didn’t.
Q. Did he ask you to leave the store?
A. No, he didn’t ask me to leave the store.
Q. Did he ask you to leave where you were sitting?
A. No, he didn’t ask me to leave where I was sitting. 

He just said they had a place downstairs where they would 
serve me.

Mr. Adams: That is all.

Cross examination.

By Mr. Davis:
Q. Did you ask the man that asked you to go elsewhere 

what his identity was or what his position with the com­
pany was ? i
[fol. 44] A. No, I didn’t.

Q. You didn’t bother to do that?
A. No, I didn’t.
Q. "Who told you to go to Pizitz?
A. Didn’t anyone tell me to go.
Q. Well to whom did you report that you were willing 

and would volunteer to go to Pizitz?
A. I didn’t tell anybody. I usually go to their establish­

ment so I just figured I would go there that day for the 
same thing.

Q. You had a meeting and you discussed this with some—
Mr. Hall: We object to this cross-examination. It is 

outside of the issues brought out on direct. It has no bear­
ing on what this witness has testified to or the issues in­
volved in the case.

The Court: In the light of the officer’s testimony about 
what the conversation was I think it is competent.





46

Mr. Hall: We take an exception.
Q. Did you have a meeting on March 30, wherein this 

trip and this visit was discussed?
A. Well I wouldn’t exactly call it a meeting.
Q. I didn’t ask you what you would call it. T said did 

you have a meeting?
A. No, we didn’t have a meeting, no meeting.
Q. You didn’t talk to anybody on that occasion in a 

group?
A. We talked to somebody on the occasion but it was 

not a meeting. We went there to be advised.
Q. How many were there in the group?
A. Well I don’t exactly know.
Q. I didn’t ask you exactly how many were there, but 

you know the names of everybody present, don’t you?
A. I don’t know exactly.
Mr. Hall: We object to the questions and the manner in 

which they are asked.
The Court: He says he doesn’t know exactly how many 

were there.
[fol. 45] Q. Well, you recall Reverend Billups was there?

A. Yes, sir, I do.
Q. You know you were there and you know James Gober 

was there ?
A. That is right.
Q. You know Roy Hutchison was there?
A. That is right.
Q. You know R. J. King was there?
A. Yes, sir.
Q. You know Robert L. Parker, Jr., was there?
A. Yes, sir.
Q. You know R. D. Sanders was there?
A. That is right.
Q. You know Reverend Shuttlesworth was there?
A. That is right.
Q. You know J esse Walker was there ?
A. I don’t know him.
Q. You know William West was there ?
A. William West, yes.





47

Q. You know there was a boy you didn’t know from 
another college, Miles College ?

A. Yes.
Q. You know Roosevelt Westmoreland was there?
A. Yes.
Q. You know W. J. Willis was there?
A. That is right.
Q. You know Reverend Shuttleswortli’s wife was there?
A. I didn’t see her.
Q. Did you all sit around and drink tea or did you have 

a discussion there of something you purported to do on 
the following day ?

A. No, we talked about the demonstrations that had been 
going around the country. We went there to ask for advice.

Q. You went there voluntarily ?
A. That is right.
Q. Nobody solicited you to come there ?

[fol. 46] A. That is right.
Q. Nobody came to Daniel Payne College and asked for 

volunteers to go to the meeting ?
A. That is right. *
Q. How did you know about the meeting?
A. We went there for advice. We went to his home.
Q. Who did you go there with?
A. Reverend Billups was on the campus and I asked him 

to take us over there if he was going to town and he did so.
Q. Who else went with you ?
A. I don’t exactly remember who was in the car with me 

at that time.
Q. How many were in the car?
A. There was six.
Q. Six of you?
A. That is right.
Q. How did you decide to go to Reverend Shuttlesworth’s 

house ?
A. Well I have known Reverend Shuttlesworth, he is a 

pretty outstanding man in the City I think and I figured he 
should know something about it.

Q. He was waiting for you when you got there?
A. Well I wouldn’t say waiting.
Q. Well he was at home?



.



48

A. He was at home, yes.
Q. All of you got together and you sat down and dis­

cussed the thing and there were others present for the dis­
cussion?

A. Well I wouldn’t know about that.
Q. You heard the conversation?
A. I said I didn’t know what they were there for.
Q. Did they talk about anything else except sit-ins while 

you were there?
A. Yes, we discussed things besides sit-ins, yes.
Q. What else?
A. About the schools and different things, different guys 

talking about football teams and different things.
[fol. 47] Mr. Hall: If Your Honor pleases, for the record 
I would like to again object. It seems that the City is more 
interested in the meeting and Reverend Shuttlesworth and 
Mrs. Shuttlesworth and Reverend Billups. I was under the 
impression that we are here representing defendants for 
trespassing on property after warning. This has no ma­
teriality at all.

Mr. Davis: For the sake of the record I would like to say 
for impeachment purposes this witness said they didn’t 
have a meeting and I am trying to find out whether it was 
one or not.

Mr. H all: Whether or not the City Attorney’s definition 
of a meeting is the same as the witness’ definition is im­
material. The witness said he didn’t call it a meeting. But 
assume it was, what has that got to do with whether or not 
he is guilty of trespass after warning. That is all he is 
tried for.

The Court: Leave the record as it is.
Mr. Hall: We take an exception on the basis of the 14th 

Amendment.
Q. You say you purchased some items at Pizitz, socks, 

handkerchiefs and what else?
A. Toothpaste.
Q. Was that discussed at the gathering you had the 

prior day that you boys were to make certain purchases 
other than the purchase at the lunch counter?

A. It was not.





49

Q. It was not discussed f
A. No.
Q. You didn’t hear anybody ask Reverend Shuttlesworth 

if they were supposed to buy anything else ?
A. No, sir.
Q. You didn’t tell Officer Pierce that that is what you 

were told to do?
Mr. Hall: If Your Honor pleases, we object to this 

question. What has that got to do with it?
Mr. Davis: If we had a little time I wouldn’t mind tell­

ing counsel.
[fol. 48] Mr. Hall: If you are going to try him for tres­
pass after warning I think you should hold the issues within 
that charge.

The Court: Well is there anything before the Court.
Mr. Hall: We object to the last question as to who told 

him to buy the toothpaste.
The Court: Leave it in.
Mr. Hall: We except.
Q. You know that we have perjury laws in Alabama, do 

you not ?
A. Sure.
Q. I see. And you say that no one suggested or told you 

to buv any other articles than food.
A. No.
Q. Now you don’t remember the topics they discussed, 

you don’t remember at this time ?
A. Like I said, I don’t remember.
Q. You just don’t have any recollection on the subject 

whatever it is, do you?
A. (No response)
Q. Did you go to the basement to buy food ?
A. No, I didn’t.
Q. What was this to be breakfast or lunch?
A. Well I would call it a snack.
Q. A snack?
A. That is right.
Mr. Davis: That is all.



■

.



50

R e d ire c t ex am in a tio n .

By Mr. Adams:
Q. Have you ever seen the lunchroom, the lunch counter 

for Negroes in Pizitz Basement?
A. No, I haven’t.
Q. Have you shopped in Pizitz Basement?
A. I was shopping on the first floor.
Q. Was Gober with you on this occasion ?
A. Yes, he was.
Q. Did lie buy any articles in the store?

[fol. 49] A. Yes, he did.
Q. Do you recall what he bought?
A. Weil I think he bought some socks or something. I 

don’t know exactly.
Q. Is the lunch counter on the mezzanine clearly visible 

from Pizitz first floor?
A. Yes, it is.
Q. You could see the persons there eating?
A. Yes, sir.
Q. Did you see a sign saying whether or not it was a 

white or colored lunch counter?
A. No.
Q. But there is a sign saying lunch counter or something 

to that effect ?
A. That is right.
Mr. Adams: That is our case, Your Honor.
Mr. Davis: We have nothing further.
The Court: Does counsel care to argue the case?
Mr. Hall: Yes, sir.
The Court: All right, at two o’clock.

[fo l. 50] T ranscript of S en ten cin g

The Court: May I ask if James Albert Davis is present?
A Voice: Yes.
The Court: James Gober. Roy Hutchinson. Robert J. 

King. Robert L. Parker, Jr. Robert D. Sanders. Jessie 
Walker.

A Voice: Here.





51

The Court: William West.
A Voice: Here.
The Court: Roosevelt Westmoreland and Willie J.

Willis. Anyone whose name I didn’t call among the stu­
dents? Charles Billups.

A Voice: Here.
The Court: F. L. Shuttlesworth.
A Voice: Here.
The Court: Taking the Charge of Trespass After Warn­

ing as applied to each of the names just called, there was 
a slight change in the previous sentence. The Court finds 
the defendant and each of those called, finds the defendant 
guilty as charged in the complaint and fixes the punishment 
and fine at $100.00 and 30 days hard labor for the City. 
I have indicated that appeal bond will probably be filed.

Mr. Shores: Yes sir. But, Your Honor, before these 
appeal bonds are filed we would like for you to suspend the 
sentence to give us a chance to file a motion for a new trial 
and continue them under the same bond.

The Court: What do you say to that, Mr. Walker?
Mr. Walker: I have no objection to it. In other words, 

he has a right to file a motion for new trial. I have no 
objection to it. In other words, if they want to be free on 
the same bond and if that is agreeable to the Court, it is 
agreeable with me.

The Court: Mr. Davis, a motion was just made in each 
of the Trespass After Warning cases that—if you will, 
restate the motion, please.

Mr. Shores: That the sentence in each case be suspended 
and the defendants be continued under the same bond until 
we file and have a motion for a new trial determined.

Mr. Davis: Judge, I think we prefer things to go in their 
normal course.
[fob 50a] The Court: If there is to be appeal bonds in 
each case, 1 do not see how any hardship or prejudice would 
result from letting it be done forthwith.

Mr. Shores: Well, Your Honor, we are in a position to 
file it forthwith, but, as Counsel knows, those are quasi­
criminal cases and to file an appeal bond now this Court 
would really lose jurisdiction, and if His Honor doesn’t





52

see fit to suspend the sentence, we would beg permission 
to file a motion for a new' trial and let the motion be entered 
as filed and Your Honor can enter his ruling and give us a 
chance to file the motions within the next day or two and 
wTe will perfect the appeals today.

The Court: Would you mind giving the Court the benefit 
of your thought about any advantage or any favorable 
result or any profit to the defendants by doing that?

Mr. Shores: In a motion for a new trial we feel we would 
re-raise several points that were not really raised during 
the trial and indicate them as error in this motion for a new' 
trial. In other words, if Your Honor would entertain them, 
we would make a motion for a newr trial at this time and beg 
leave of the Court for time to specify the grounds for a 
new trial and let the record show that the motion for a 
new trial wras filed immediately after the sentence and 
that the bond would be filed after—let it be showm the 
bond is filed after the motion for a new' trial is ruled upon.

Mr. Adams: Judge, I think one of the thoughts in mind 
here is it is almost axiomatic for lawyers that a motion 
for a new' trial should be filed after the sentence of the 
defendant, and it might be considered negligence if such 
a motion w'ere not filed regardless of w'liat the Court’s 
decision may be on it. And we also are in this position in 
these cases. It is my understanding that the motion for 
newr trial does not necessarily suspend the running of 
time in w'hich the record must be on file with the Court of 
Appeals and, therefore, in order to save the time in 
which we have to perfect the appeal and not let the time 
[fol. 51] just passing when the motion is before Your Honor 
consume the time we have to file our record on appeal, we 
are asking that the motion be allowed to be filed before we 
file the notice of appeal, and if the Court rules against us 
on the motion wre will file immediately our appeal.

Now, in the event that the Court sees fit to want to dispose 
of the thing immediately, we would like to file now a motion 
orally after sentencing, which has been done, sentence has 
been given, we would file our motion orally and subse­
quently put it in writing, and the Judge may rule, if he 
is so disposed, now', as to how he feels about it. But wre



■



53

think, as officers of the Court and lawyers, that a motion 
for a new trial certainly is consistent with good practice 
and may be considered error on the part of Counsel if 
such were not filed. That is our thought about it.

The Court: All right. You want the execution of sentence 
held in abeyance until such time as your motion for new 
trials can be formally presented!

Mr. Shores: That is our motion, Your Honor.
The Court: Would there be anything—would there by 

any advantage to the defendants to put that motion in writ­
ing formally?

Mr. Shores: We would have to designate, and it would 
take some time to spell out the various grounds that we 
feel on which we are entitled to a new hearing or a new 
trial. We could have it done by Monday.

The Court: I won’t be here Monday.
Mr. Shores: Well, the following Monday or any date 

Your Honor sees fit. As 1 say, it is not going to jeopardize 
the City to grant this little stay.

The Court: If there is any good or any advantage to be 
had, the Court wants it had. I just didn’t see how there 
was to be any. Now, suppose we do it this way, then. As 
I understand the law, I can suspend the judgment of sen­
tence for 24 hours, and I am doubtful about being able to 
do it longer in City appeal cases. Would this time tomor­
row be too soon?

It seems to be that you have here the ten students and 
the Court thinks they were misused and misled into a 
violation of a City Ordinance and has so ruled. Nov/, if 
ffol. 51a] there would be any stronger position before the 
Court of Appeals to have also a denied motion for a new 
trial, I would want them to have that.

Mr. Shores: We feel they would, Your Honor. Could 
Your Honor do this ? As indicated, we have made our 
motion for a new trial and would Your Honor give us 
leave—j mean you can rule on the motion and deny the 
motion now and give us leave to put it in writing for the 
record?

The Court: Sure.
Mr. Shores: Then we would immediately make our appeal 

bonds and the sequence of the record would show a motion





54

for a new trial, the motion overruled, and the appeal 
perfected.

The Court: What says the City!
Mr. Davis: I am not sure I see what he is trying to 

accomplish other than the fact he would like to clutter 
this record further, but I Avould prefer not to yield on any 
point on this thing. Of course, they are entitled to file their 
motion. I have no objection to giving them several days to 
file their motion, but other than that, I wouldn’t want to be 
agreeable to any extensions or waivers as to bonds or 
things of that description.

Mr. Shores: We will file the bond today. We are asking 
we be permitted to spell out the oral motion we have 
already made.

The Court: After your appeal bond is filed ?
Mr. Shores: That’s right.
The Court: I think that is all right.
Well, it was the same judgment and sentence in each of 

the student cases.
That brings us, I believe, to three other cases, the case 

of Charles Billups charged with aiding and abetting. The 
Court finds the defendant guilty as charged in the com­
plaint and fixes his punishment and fine in the sum of 
$25.00 and 30 days hard labor for the City of Birmingham.

In the case of F. L. Shuttlesworth, charged with aiding 
and abetting, the Court finds the defendant guilty as charged 
[fol. 52] in the complaint and fixes his punishment at a 
fine in the sum of $100.00 and 180 days hard labor for the 
City.

The case of F. L. Shuttlesworth, charged with false 
information, the defendant moved for a dismissal and the 
motion was granted.

Mr. Shores: Your Honor, as to those last two cases we 
would like to move orally for a motion for a new trial 
with leave to file written motion within a reasonable time.

The Court: With the appeal bonds forthwith made!
Mr. Shores: That’s right.
The Court: All right.
Mr. Shores: How long will Your Honor give us to write 

those motions up since the bonds will have already been 
filed ? May we have a couple weeks!



.



55

The Court: Well, haven’t we conscientiously canvassed 
the issues?

Mr. Shores: We have.
The Court: Is there anything to he gained by thrashing 

the straw again?
Mr. Shores: We would just like to have it ruled on. Let 

the record show that the motion is denied.
The Court: All right, so ordered.
Mr. Shores: Then, we will make note of an appeal in 

each case separately and severally and will forthwith file 
the appeal bond. What will that bond be, Your Honor?

The Court: $300.00 I believe is mentioned in each case.
The foregoing was all the testimony and oral proceedings.

C ou nsel’s N ote R e R ecord

The transcript of the sentencing of the petitioners as 
printed in the Gober record appears in identical form in 
each of the 10 cases.
[fol. 53] Reporter’s Certificate to foregoing transcript 
(omitted in printing).

1 ----------
[fol. 54]

T h e  C ircu it  Court of t h e  T e n t h  J udicial C ircuit  
of A labama

The State of Alabama,
Jefferson County.

C l e r k ’s C ertificate

I, Julian Swift, Clerk of the Circuit Court of the Tenth 
Judical Circuit of Alabama, in and for said County and 
State, do hereby certify that the foregoing pages, num­
bered from 1 through 12 both inclusive, contain a full, true 
and complete transcript of the records and proceedings 
in this Court (except such parts as are not necessary to 
be contained therein); that pages numbered from 13 
through 53 both inclusive, contain a transcript of evidence 
together with all proceedings therein as filed in this office, 
all being in a cause wherein the City of Birmingham is 
plaintiff, and James Gober is defendant, which said cause





56

was tried and determined in this Court on the 11th day of 
October, 1960, and an appeal was taken from the judgment 
therein to the Court of Appeals of Alabama. Defendants 
gave bond to answer said appeal.

W itness my hand and the seal of this Court, this the 
27th day of January, 1961.

Julian Swift, Clerk of the Circuit Court of the Tenth 
Judicial Cixcuit of Alabama.

[fol. 55]
I n  t h e  C ourt of A ppeals of A labama

J ames Gober, Appellant, 
vs.

T h e  City  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest e rro r in the 
foregoing Transcript of the Eecord of the proceedings, 
had and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error assigns each of the following separately 
and severally:

1. The Court erred in overruling Appellant’s Motion to 
Strike the Complaint in this cause, to which ruling Appel­
lant took exception. (Tr. 2, 3, 8 & 16)

2. The Court erred in overruling Defendant’s Demurrers 
filed in this cause, to which ruling appellant took exception. 
(Tr. 3, 4, 8 & 16)

3. The Court erred in overruling A ppellant’s Motion to 
Exclude the Evidence. (Tr. 5, 7, 8, 41 & 42)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9, 10, 12 & 55) 5

5. The Court erred in allowing Detective C. L. Pierce 
to testify relative to an alleged conversation had on April 
1, with Jam es Edward Gober and Jam es Albert Davis,



'



57

with reference to certain admissions of Appellant, in the 
nature of confession, over Appellant’s objections, to which 
ruling Appellant took exception. (Tr. 37)

A rthur D. Shores, Peter A. Hall, Orzell Billingsley, 
J r ., Oscar AY. Adams, Jr., J . Richmond Pearson, 
Attorneys for Appellant.

[fol. 56] Certificate of Service (omitted in printing).

[fol. 57]
I n  t h e  Court of A ppeals of t h e  S tate of A labama

.................. J udicial D epartm ent

October Term, 1960-61
6 Div. 797

J ames G ober,

v.
C ity  of B irm in g h a m .

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January  30, 1961 
Transcript Filed

April 18, 1961

Como the parties by attorneys, and argue and submit 
this cause for decision.

O rder of A ffirm ance— 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



■



58

the judgment of the Circuit Court he in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.

[fol. 58]
I n t h e  Court of A ppeals of t h e  S tate of A labama

..................J udicial D epartm ent

October Term, 19G0-61
6 Div. 797

J ames Gober,

v.
C ity of B ir m in g h a m .

Appeal from Jefferson Circuit Court

Op in io n — May 30, 1961 

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, A f t e r  Warnin g.  Any person who enters 

into the dwelling house, or goes or remains on the 
premises of anoilier, 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.”

[fol. 59] 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 
punishment was imposed.

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

nicipal corporation, and complains that James Gober,





59

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. E ither 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 restau­
rant. 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, 
48 So. 2d 761; cert. den. 254 Ala. 515, 48 So. 2d 768; cert, 
den. 71 S. Ct. 506, 340 U.S. 942, 95 L. Ed. 680; Ellis v. 
City of Sylacauga, 36 Ala. App. 6S7, 63 So. 2d 33; Parke 
v. City of Montgomery, 38 Ala. App. 681, 92 So. 2d 683.

| [fob 60] 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 E rro r 
No. 1.





60

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 E rro r No. 1 is there­
fore without merit.

Appellant’s Assignment of E rro r No. 2 avers that the 
court erred in overruling his dem urrer to the complaint.

Ground 1 of the dem urrer 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.

Preterm itting 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.

F or 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. 34S, 69 So. 357, and a trial court will not be put 
in error for overruling a dem urrer based on general grounds 
which are not sufficiently specific to point out an alleged 
defect in the pleading. Cahiness v. City of Tuscaloosa, 39 
Ala. App. 538, 104 So. 778; Sarher 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 dem urrer 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:

[fol. 61] “E ither before or afte r judgment on demur­
rer, the court must permit an amendment of the plead­
ings ; * * * ”

This section is broad and comprehends all pleadings 
except indictments, and authorizes amendment of complaints



'



61

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. McElhaney 
v. Singleton, 270 Ala. 162, 117 So. 2d 375; Campbell v. 
Jackson, 257 Ala. 61S, 60 So. 2d 252.

Grounds 4, 5, 6, 7 and S 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 
defendant appears from any of the pleading. Such un­
constitutional application would be a m atter of evidence. 
These grounds, setting up a speaking demurrer, necessi­
tated an overruling of the dem urrer in this aspect. Broun 
v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419; Kalas v. 
McMahon, 36 Ala. App. 23S, 54 So. 2d 322; United States 
Fidelity and Guaranty Co. v. Town of Dothan, 174 Ala. 
4S0, 56 So. 953.

Appellant’s Assignments of E rro r 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, p a r­
ticularly 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 m atters, various phases 
of constitutional law, particularly as affected by the 
[fol. 62] Fourteenth Amendment of the Federal Constitu­
tion, such as freedom of speech, in regard to which counsel 
s ta te : “What has become known as a ‘sit-in’ is a different, 
but well understood symbol, meaningful method of com­
munication.” Counsel has also referred to cases pertaining 
to restrictive covenants. We consider such principles en­
tirely inapplicable to the present case.





62

Counsel also stated in brief that “ * * * The prosecution 
adduced no evidence to prove that they had no such 
constitutional right * * * ” that is, to remain in the restau­
rant 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, 
the proof of which rested upon the appellant unless the 
evidence which proved the act also proved the excuse. 
Owen s  v. S ta te ,  74 Ala. 401.

As we interpret the argument of counsel for appellant, 
its tenor may well be illustrated by the following quotations 
from the b rie f:

“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 customer 
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 Broivcler v. Gayle ,  142 F. Supp. 707:
“In their private affairs, in the conduct of their 

private businesses, it is clear that the people themselves 
have the liberty to select their own associates and 
the persons with whom they will do business, unim­
paired 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.”





63

[fol. 63] Even so, there is no question presented in the 
record before us, by the pleading, of any statute or or* 
dinance requiring the separation of the races in restaurants. 
The prosecution was for a criminal trespass on private 
property.

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 promises. While a 
distinction exists between a licensee and an invitee in so 
far 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 governed 
by the rules pertaining to licensees, for in general, that is 
the position lie occupied even though on the premises 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. t

In the absence of statute, a restaurant owner may accept 
or reject customers on purely personal choice. Nance v. 
Mayflatcer Tavern, 106 Utah 517, 150 P. 2d 773; Noble v. 
Hiyyins, 15S X. Y. S. S67, 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 attempting 
to misapply the Fourteenth Amendment, ignoring the pro­
vision 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.) 
[fol. 64] As stated in Williams v. Howard Johnson Res­
taurant, (C.C.A. 4) 36S 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





64

without compulsion by the people of the State in accordance 
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 
M ar t in  v. C i ty  of  S t m t h e r s ,  319 U. S. 147, 63 S. Ct. S62, 
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.”

Boyn ton  v. Virginia,  81 S. Ct. 182, relied on by the appel­
lant, 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 con­
trolled by an interstate carrier as a part of its business. 
This doctrine cannot be said to create a constitutional right 
to trespass on private property, regardless of race.

Likewise, we find the doctrine of M arsh  v. S t a t e  of  
Alaba m a,  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 com­
pany owned town. As stated by the court, this town though 
owned by a company, had “all the characteristics of any 
other American town” in so far as municipal functions wrere 
concerned, and therefore should be subjected to constitu­
tional 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.
[fol. 65] Assignment of E rro r number 5 relates to a rul­
ing concerning the admission of certain evidence. Counsel 
has not argued this assignment in brief, and preterm it con­
sideration thereof.

Affirmed.





65

[fol. 66]
I n t h e  Court of A ppeals of t h e  S tate of A labama

...... ...........  J udicial D epartm ent

October Term, 1960-61
6 Div. 797

J ames G ober,

v.
C ity of B ir m in g h a m .

Appeal from Jefferson Circuit Court

A pplication  for R ehearing—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 rthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, Oscar W. Adams, Jr., J . Richmond Pearson, 
Attorneys for Appellant.

O rder O verruling A pplication  for R ehearing  
—June 20,1961

It  is ordered that the application for rehearing he and 
the same is hereby overruled. P er Curiam.

C ounsel’s N ote R e R ecord

The application for rehearing in the Alabama Court of 
Appeals and that Court’s order overruling the application 
in the Gober  record, is identical to the similar applications 
and orders filed in the other 9 cases except for the captions.





6 6

[fol. 67] 
No. 762

[File endorsement omitted]
Sixth Division

Ex P a rte : Jam es Gober 

I n t h e  S uprem e  C ourt of A labama

J ames G ober, Appellant,
vs.

C ity  of B ir m in g h a m , Appellee.

P etition for Certiorari— Filed July 3,1961

[fol. 68] To the Honorable Chief Justice and Associate
Justices of the Supreme Court of Alabama
1. Comes the Appellant, by and through his Attorneys, 

A rthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J . Richmond Pearson, and re­
spectfully petitions this Honorable Court to review, revise, 
reverse and hold for naught that certain Judgm ent of the 
Court of Appeals, on to-wit: May 30, 1961, wherein James 
Gober was Appellant and the City of Birmingham was 
Appellee, which Judgment affirms the Judgment of the 
Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a Rehearing of said cause and Brief in 
support thereof were duly filed by your petitioner within 
the time required by law, and that said application for 
rehearing was overruled by said Court of Appeals on the 
20th day of June, 1961. 3

3. Your petitioner respectfully shows unto the Court 
that this cause arose from a complaint filed by the City 
of Birmingham, charging your petitioner with violating 
§1436 of the General City Code of Birmingham, viz:

“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



*

.



67

punished as provided in §4, provided that this Section 
shall not apply to police officers in discharge of official 
duties.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the 
Complaint was so vague and indefinite as not to apprise 
the Appellant of what he was called upon to defend, and 
further, that the ordinance which formed the basis of the 
[fol. 69] prosecution, as applied to appellant, constituted 
an abridgement of the privileges and immunities guaran­
teed by the Constitution of the United States and that the 
ordinance was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the 
Demurrers whereupon petitioner was tried without a jury, 
and was found guilty of Trespass after W arning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced 
to a term of Thirty (30) Days of hard labor for the City 
of Birmingham.

6. Your petitioner filed a Motion to Exc]ude__the_ Evi­
dence, at the close of the City’s case, which Motion was 
denied. A fter judgment and sentence, petitioner filed a 
Motion for a New Trial, which Motion was denied, and 
petitioner perfected Ins appeal.

7. Your petitioner further shows unto Your Honors that 
the Court of Appeals erred in affirming and failing to 
reverse said cause, in the following ways, to-wit: The 
Court based its judgment in this cause upon the opinion 
judgment rendered in the case of James Gober vs. City of 
Birmingham, Sixth Division—797, decided May 30, 1961.

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in viola­
tion of the Fourteenth Amendment to the United States 
Constitution.





B. That the Ordinance and Complaint, the basis of the 
«'v prosecution, as applied to petitioner, constitute an abridge­

ment of the privileges and immunities, and a denial oi the 
equal protection of the laws, all in violation of the Four- 

x c. teenth Amendment to the L nited States Constitution.
The Court of Appeals erred in failing to rule that the 

conviction of petitioner was a violation of due process of 
. >'' law, an abridgement of the privileges and immunities of 

the petitioner, in that the petitioner was denied equal 
1 protection of the law, all in violation of the Fourteenta 

Amendment to the Constitution of the I nited States.
[fol. 70] W herefore, Your petitioner most respectfully 
prays that a W rit of Certiorari be issued out of and 
under the seal of this Court, directed to the Court of 
Appeals of Alabama, commanding and requiring said Court 
to cert if v and send to this Court, on a day certain to be 
designated by this Court, a full and complete transcript 
of record, and all proceedings of said Court of Appeals 
of Alabama, in the Cause numbered and entitled afore­
said, to the end that this cause may be reviewed and 
determined by this Honorable Court, as provided by law 
and the rules and practice of this Court, and that this 
Court thereupon proceed to review and correct the c iio rs  
complained of and to reverse the Judgment of the Court 
of Appeals or render such Judgm ent as said Court should 
have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certificate 
of Affirmance of said cause, during the pendency of this 
petition.

And petitioner prays for such other, further and addi­
tional relief in the premises, as to this Court may seem 
appropriate, and to which he may be entitled, and } oui 
petitioner will ever pray.

Respectfully submitted,
A rthur D. Shores, Peter A. Hall, Orzell B illingsle), 

Jr., Oscar W. Adams, Jr ., J . Richmond Pearson, 
By Oscar W. Adams, Jr ., Attorneys for Appellant.

68





69

[fol. 71] D u ly  sw o rn  to by  Oscar  IF. A d a m s ,  Jr . ,  ju ra t  
o m it te d  in pr int ing.

Certificate of Service (omitted in printing).

[fol. 72]
I n  t h e  S uprem e  C ourt of A labama 

The Court met in Special Session pursuant to adjournment 
Present: All the Justices

6th Div. 762
Ex P a r te : J ames G ober, Petitioner 

P etitio n  for W rit of C ertiorari to t h e  C ourt of A ppeals 

(Re: James Gober vs. City of Birmingham) 
Jefferson Circuit Court

O rder D enying  P etition  for W rit of C ertiorari 
—September 14,1961

Comes the Petitioner in the above styled cause and the 
Petition for W rit of Certiorari to the Court of Appeals 
being Submitted on Briefs and duly examined and under­
stood by the Court,

I t Is Ordered that the W rit of Certiorari be and the 
same is hereby denied and the petition dism'ssed at the 
cost of the petitioner for which cost let execution issue.

Livingston, C.J., Simpson, Goodwyn and Coleman, J J ., 
Concur.

C o u nsel’s N ote R e R ecord

The order of the Supreme Court of Alabama denying 
the writ of certiorari in the G ober  record is identical 
to those in the records pertaining to the other 9 petitioners 
except for the captions.



.



70

[fol. 73]
N0 7g2 Sixth Division

Ex P arte : J ames G ober

I n t h e  S uprem e C ourt of A labama

J ames G ober, Appellant, 
vs.

C i t y o f  B i r m i n g h a m , Appellee.

A pplication  for R ehearing—Filed September 28,19G1
Now comes Appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant Appel­
lant a Rehearing in said cause, and reverse, revise and 
hold for naught its Judgment rendered on to-wit, the 14th 
day of September, 1961, denying appellant the Writ of 
Certiorari and dismissing the petition, and to enter an 
Order reinstating appellant’s petition, and directing that 
a Writ of Certiorari be issued out of and under the Seal 
of this Court, to the Court of Appeals of Alabama, to 
the end that this cause may be reviewed and determined 
by this Honorable Court.

Appellant further moves the Court to grant a Stay of 
Execution in this cause, during the pendency of this Ap­
plication for a Rehearing.

Submitted herewith is a Brief and Argument, in support 
of said Motion.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, J. Richmond Pearson, At­
torneys for Appellant, By Oscar W. Adams.

C o u nsel’s N ote R e R ecord

The application for rehearing of the denial of the writ 
of certiorari, printed in the Gober record, is identical to 
that appearing in the records pertaining to the other 9 
petitioners except for the captions.





71

[fol. 74]
I n  t h e  S uprem e  C ourt of A labama 

The Court met pursuant to adjournment 
Present: All the Justices

6th Div. 762
Ex Parte: J ames Uober, Petitioner 

P etitio n  for AVrit of C ertiorari to t h e  C ourt of A ppeals 

(Re: James Gober vs. City of Birmingham) 
Jefferson Circuit Court

O rder Overruling  A pplication  for R ehearing  
—November 2,1961

It Is Hereby Ordered that the application for rehearing 
filed in the above cause by the petitioner on September 28, 
1961, be and the same is hereby overruled.

(Livingston, C.J., Simpson and Coleman, JJ., concur.) 

Counsel’s N ote R e R ecord

The order of the Supreme Court of Alabama overruling 
the application for rehearing in the Gober record is 
identical to the corresponding orders in the records per­
taining to the other 9, petitioners except for the captions.
[fol. 75] Clerk's Certificate to foregoing transcript 
(omitted in printing).





72

[fol. 75a] [File endorsement omitted]
No. 762 Sixth Division

E x P a b t e : J ames Gober

I n t h e  S u pr em e  Court of A labama

J ames Gober, Appellant, 
vs.

C ity  of B ir m in g h a m , Appellee.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., J. Richmond Pearson, Oscar W. Adams, Jr., 
Attorneys for Appellant.

P roceedings on P etitio n  for C ertiorari 

July 3,1961 Submitted on Briefs 
September 14,1961 Writ Denied: No Opinion 
September 28,1961 Application for Rehearing Filed 
November 2,1961 Application for Rehearing Overruled

C ou nsel’s N ote R e R ecord

The page in the Gober record which lists the proceedings 
in the Supreme Court of Alabama on the petition for 
certiorari and gives the dates of rulings, etc., is identical 
to the corresponding page in the records pertaining to the 
other 9 petitioners except for the captions.
[fol. 76] Clerk’s Certificate to foregoing transcript 
(omitted in printing).





73

[fol. 1]
I n  t h e  C ircu it  Court of t h e  T e n t h  J udicial C ircuit 

o f  A labama, in  and for J efferson  County

No. 20779

T h e  C ity  of B ir m in g h a m , 

vs.
J ames A lbert  D avis.

A ppeal  B ond [o m itte d  in  p r in t in g ] .

[fol. 2]
I n  t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama 

No. 20779

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

J ames A lbert D avis, Defendant.

C om plaint—Filed October 10,1960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that James Albert Davis, 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





74

Section 143G of the General City Code of Birmingham of 
1944.

Watts E. Davis, Attorney for City of Birmingham. 
[File endorsement omitted]

I n t h e  C ir c u it  C ourt of t h e  
T e n t h  J udicial C ir c u it  of A labama

No. 20779

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

vs.
J ames A lbert  D avis.

M otion  to S t r ik e—Filed October 10,19G0
Conies now James Albert Davis, defendant in this cause, 

and moves to strike the complaint in this cause, and as 
grounds for said Motion, sets out and assigns the following, 
separately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so vague 

and indefinite, as not to apprise this defendant of what he 
is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, 
as a citizen of the State of Alabama, and of the United 
States, constitutes an abridgment of the freedom of assem- 
[fol. 3] bly, speech and liberties secured to the Defendant, 
by the Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America. 4

4. That the said oidinance or statute which is the basis 
for the affidavit, information or complaint in this cause,





75

as applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section S24 of the General City Code of the City 
of Birmingham, as applied to this defendant, a Negro 
citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmond Pearson, Orzell Bil­
lingsley, Jr., Peter A. Hall, Oscar W. Adams, Jr., 
Attorneys for Defendant.

[File endorsement omitted]

I n t h e  C ircu it  Court of t h e  
T e n t h  J udicial C ir c u it  of A labama

No. 20779
i

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

vs.
J ames A lbert D avis.

D emurrers—Filed October 10,19G0
Comes now James Albert Davis, defendant in this cause, 

and demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the fol­
lowing, separately and severally:





76

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
[fol. 4] cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this 
defendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United 
States of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this defen­
dant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech and 
assembly violative of rights and liberties secured the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
in (sic) unconstitutional on its face in that it is so vague as 
to constitute a deprivation of liberty without due process of 
law in violation of the pi'ovisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, 
constitutes a denial of equal protection of the laws in





77

violation of the Fourteenth Amendment to the Constitution 
of the United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]

[fol. 5]
I n t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama

No. 20779

C ity  of B ir m in g h a m , Plaintiff, 
versus

J ames A lbert D avis, Defendant.

M otion to E xclude t h e  E vidence—Filed October 10, I960
1. The complaint charging defendant, a Negro, with vio­

lation of 1436 of the General City Code of Birmingham of 
1944, to-wit, an alieged trespass upon land after being 
forbidden to enter or remain after told to leave is invalid 
in that the evidence establishes merely that defendant was 
peacefully upon the premises of Pizitz eating facilities, an 
establishment performing an economic function invested 
with the public interest, as a customer, visitor, business 
guest or invitee, and there is no basis for the charge recited 
by the complaint other than an effort to exclude defendant 
from Pizitz eating facilities because of his race or color; 
defendant, at the same time is excluded from equal service 
at the preponderant number of other similar eating estab­
lishments in Birmingham, Alabama; thereby depriving him 
of liberty without due process of law and of the equal 
protection of the laws secured by the 14th Amendment of 
the United States Constitution.





78

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speaking 
and protesting against the practice, custom and usage of 
racial discrimination in Pizitz eating facilities, an establish­
ment performing an economic function invested with the 
public interest; that defendant peacefully was attempting 
to obtain service in the facilities of Pizitz eating facilities 
in the manner of white persons similarly situated, and at 
no time was defendant defiant or in breach of the peace 
and was at all times upon an area essentially public, where­
fore defendant has been denied rights secured by the due 
process and equal protection clauses of the 14th Amendment 
of the United States Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Bir­
mingham, Alabama to permit defendant, a Negro, and other 
[fol. 6] members of defendant’s race from enjoying the 
access to such stores, facilities and accommodations afforded 
members of other races; and that by this prosecution, 
prosecuting witnesses and arresting, officers are attempting 
to employ the aid of the Court to enforce a racially dis­
criminatory policy contrary to the due process and equal 
protection clauses of the 14th Amendment to the Constitu­
tion of the United States.

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Pizitz’s Eating 
Facilities, a store open to the public, but had not been 
allowed to obtain food service on the same basis as that 
offered white persons, because of defendant’s race or color;





79

and, that in furtherance of this racially discriminatory 
practice of Pizitz eating facilities, defendant was arrested 
on the basis of race or color, under color of law, to enforce 
Pizitz’s eating facilities racially discriminatory policy, 
thereby violating defendant’s rights under the equal pro­
tection and due process clauses of the 14th Amendment of 
the United States Constitution.

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a 
Negro, was arrested and charged 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, in that said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right suflicient to apprise defendant 
of the validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to defendant 
as to violate his rights under the due process clause of the 
14tli Amendment of the United States Constitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to be on 
property open to the public after being asked to leave, 
because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
[fol. 7] complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: 
and from which defendant was barred because of his race 
or color; that such denial was in accordance with a policy, 
custom and usage of Pizitz’s eating facilities, of operating 
such facilities and services on a racially segregated basis, 
which policy, custom and usage violates the due process 
and equal protection clauses of the 14th Amendment of the 
Constitution of the United States.





8 0

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempting 
to use a facility, Pizitz’s eating facilities, open to the pub­
lic, which was denied to him solely because of race or color; 
that Pizitz’s eating facilities, was and is offering, for a 
price, to serve all members of the public with food; that 
this public facility Pizitz’s eating facilities, is, along with 
others of a similar nature, performing a necessary service 
for the public, which in fact, would have to be provided by 
the state if Pizitz’s eating facilities and other like facilities 
were all to withdraw said service; that having determined 
to offer said valuable service to the public, Pizitz’s eating 
facilities is required to provide such service in the manner 
of state operated facilities of a like nature, to w it: That 
Pizitz’s eating facilities may not segregate or exclude 
defendant on the ground of race or color, in violation of 
the due process and equal protection clauses of the 14th 
Amendment of the United States Constitution.

Oscar W. Adams, Jr., Arthur D. Shores, J. Kichmond 
Pearson, Orzell Billingsley, Jr., Peter A. Hall, 
Attorneys for Defendant.

[File endorsement omitted]



-



81

[fol. 8]
In t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama

Appealed from Recorder’s Court
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

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

y s .

J ames A lbert D avis.

J udgm ent E ntry—October 10,1960
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 overruling 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 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 on this the lltli day of October, 1960, the 
Court finds the defendant guilty as charged in the Corn-





82

plaint 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 
James Albert Davis, 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 Albert Davis, 
[fol. 9] perform additional hard labor for the City of Bir­
mingham for thirty days, as additional punishment in this 
cause.

And the costs legally taxable against the defendant in 
this cause amounting to fifty-one and 75/100 ($51.75) dol­
lars, 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-seven and 75/100 ($47.75) dollars tax­
able for sentence, it is ordered by the Court that said de­
fendant perform additional hard labor for the County for 
sixty-four 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 author­
ities 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.





83

And on this the 11th day of October, 19G0, 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.

[fol. 10]
I n t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama

No. 20779

C ity of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

J ames Albert  D avis, Defendant.

M otion for a N ew  T rial—Filed October 11, I960
Now comes the defendant, in the above styled cause, and 

with leave of the Court first had and obtained, and moves 
tills Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the 11th day of October, 1900, and that 
tills Honorable Court will grant the defendant a new trial, 
and as grounds for said Motion sets out and assigns the 
following, separately and severally:

1. That the Judgment of the Court in said case is 
contrary to the law.





84

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as to 
constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in over-ruling objections, by 

the defendant to the introduction of evidence on behalf of 
the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

11. The Court erred in overruling defendant’s demurrers 
filed in this cause.
[fol. 11] 12. The Court erred in overruling the defendant’s
Motion to Strike the Complaint in this cause.

13. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham, 
Alabama, in that the laws or ordinances, under which this 
defendant was charged and convicted, and as applied to 
this defendant, constituted an abridgement of freedom of 
speech violative of rights and liberties secured to the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

14. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as





85

applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty, 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion to 
exclude the evidence in this case.

17. That it appeared from the evidence that no owner 
of the premises involved, had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured by 
the officials of the City of Birmingham, Alabama, without 
first having a complaint from such owner, or other person 
in charge of such premises.

18. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant, for trespass on private 
property.

20. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in the store.

[fol. 12] Arthur D. Shores, Orzell Billingsley, Jr., 
Peter A. Hall, J. Richmond Pearson, Oscar W. 
Adams, Jr., Attorneys for Defendant.





86

O rder O verruling

The foregoing Motion being presented in open court, this 
the 11th day of October, I960; the same being considered 
and understood, the Court is of the opinion that the same 
should be overruled.

George Lewis Bailes, Circuit Judge.
[File endorsement omitted]

ArPEAL B ond to Court of ArrEALS (omitted in printing).

[fol. 14]
Transcript of Evidence—October 10, 1960 

(omitted in printing)

Counsel’s N ote R e R ecord

The parties stipulate that the trial transcript in the Davis 
case is identical to that in the Gober case.

[fol. 51]
T ranscript of S entencing (om itted in printing).

[fol. 56]
R eporter’s and Clerk’s Certificates to F oregoing 

Transcript (om itted in printing).





87

[fol. 58]
In t h e  C ourt of A ppeals  of A labama

J ames A lbert D avis, Appellant, 
vs.

T h e  C ity  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error assigns each of the following separately 
and severally:

1. The Court erred in overruling Appellant’s Motion to 
Strike the Complaint in this cause, to which ruling Appel­
lant took exception. (Tr. 2, 3, 8 & 16)

2. The Court erred in overruling Defendant’s Demurrers 
filed in this cause, to which ruling appellant took exception. 
(Tr. 3, 4, 8 & 16)

3. The Court erred in overruling Appellant’s Motion to 
Exclude the Evidence. (Tr. 5, 7, 8, 41 & 42)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9, 10, 12 & 55)

5. The Court erred in allowing Detective C. L. Pierce 
to testify relative to an alleged conversation had on April 
1, with James Edward Gober and James Albert Davis, 
with reference to certain admissions of Appellant, in the 
nature of confession, over Appellant’s objections, to which 
ruling Appellant took exception. (Tr. 37)

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

[fol. 59]
Certificate  of S ervice (omitted in printing)



'

-



88

[fol. 60]
I n  t h e  C ourt of A ppeals  of t h e  S tate of A labama

..................  J udicial D epartm ent

October Term, 1960-61
6 Div. 796

J ames A lbert D avis,

v.
C ity  of B ir m in g h a m .

Appeal from Jefferson Circuit Court

November 2,1960
C ertificate  F iled

January 30,1961
T ranscript F iled

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

cause for decision.

Order of A ffirm a n ce— 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, 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.





89

[fol. 61]
A pplica tio n  for R eh ea rin g  and Order O verruling  

(omitted in printing)

[fol. 61a]
P roceedings on P etitio n  for C ertiorari 

(omitted in printing)

[fol. 62] [File Endorsement Omitted]

I n t h e  S u pr em e  C ourt of A labama 

No. 761 Sixth Division
Ex Parte : James Albert Davis

J ames A lbert D avis, Appellant, 
vs.

C ity  of B ir m in g h a m , Appellee.

P etitio n  for C ertiorari— Filed July 3,1961
[fol. 63] To the Hon orab le  Ch ief  Jus t ice  and Assoc ia te

Chief  Jus t ic e s  o f  the  S u p r e m e  Court  o f  A labam a

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J. Richmond Pearson, and re­
spectfully petitions this Honorable Court to review, revise, 
reverse and hold for naught that certain Judgment of the 
Court of Appeals, on to-wit: May 30, 1961, wherein James 
Albert Davis was Appellant and" the City of Birmingham 
was Appellee, which Judgment affirms the Judgment of the 
Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court of 
Appeals for a Rehearing of said cause and Brief in support 
thereof were duly filed by your petitioner within the time 
required by law, and that said application for rehearing



.

■



90

was overruled by said Court of Appeals on the 20th day of 
June, 1961.

3. Your petitioner respectfully shows unto the Court that 
this cause arose from a complaint filed by the City ot Bir­
mingham, charging your petitioner with violating Sec. 1436 
of the General City Code of Birmingham, viz:

“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. 4, provided that this Section shall 
not apply to police officers in discharge of official 
duties.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the Com­
plaint was so vague and indefinite as not to apprise the 
Appellant of what he was called upon to defend, and 
further, that the ordinance which formed the basis of the 
[fol. 64] prosecution, as applied to appellant, constituted 
an abridgement of the privileges and immunities guaran­
teed by the Constitution of the United States and that the 
ordinance was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the 
Demurrers whereupon petitioner was tried without a jury, 
and was found guilty of Trespass after Warning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced 
to a term of Thirty (30) Days of hard labor for the City 
of Birmingham.

6. Your petitioner filed a Motion to Exclude the Evidence, 
at the close of the City’s case, which Motion was denied. 
After judgment and sentences, petitioner filed a Motion 
for a New Trial, which Motion was denied, and petitioner 
perfected his appeal.

7. Your petitioner further shows unto Your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause upon the opinion judgment 
Birmingham, Sixth Division—797, decided May 30, 1961. 
rendered in the case of James Albert Davis vs. City of



■



91

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in viola­
tion of the Fourteenth Amendment to the United States 
Constitution.

b. That the Ordinance and Complaint, the basis of the 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of the 
equal protection of the laws, all in violation of the Four­
teenth Amendment to the United States Constitution.

The Court of Appeals erred in failing to rule that the 
conviction of petitioner was a violation of due process of 
law, an abridgement of the privileges and immunities of 
the petitioner, in that the petitioner was denied equal pro­
tection of the law, all in violation of the Fourteenth Amend­
ment to the Constitution of the United States.
[fol. 65] Wherefore, Your petitioner most respectfully 
prays that a Writ of Certiorari be issued out of and under 
the seal of this Court, directed to the Court of Appeals of 
Alabama, commanding and requiring said Court to certify 
and send to this Court, on a day certain to be designated by 
this Court, a full and complete transcript of record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that 
this cause may be reviewed and determined by this Honor­
able Court, as provided by law and the rules and practice 
of this Court, and that this Court thereupon proceed to 
review and correct the errors complained of and to reverse 
the Judgment of the Court of Appeals or render such 
Judgment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi­
cate of Affirmance of said cause, during the pendency of 
this petition.





92

And petitioner prays for such other, further and addi­
tional relief in the premises as to this Court may seem 
appropriate, and to which he may be entitled, and your 
petitioner will ever pray.

Respectfully submitted,
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

[fol. 66] D u l y  s w o r n  to b y  O s c a r  TP. A d a m s ,  J r . ,  j u r a t  
o m i t t e d  in p r in t i n g .

Certificate of S ervice (om itted in printing)

[fol. 67]
Order D enying P etition for W rit of Certiorari 

(omitted in printing)

[fol. 68]
A pplica tio n  for R eh ea rin g  (o m itte d  in  p r in t in g )

[fol. 69]
Order O verruling  A pplication  for R ehearing  

(om itted in printing)

[fol. 70]
Clerks’ Certificates to F oregoing T ranscript 

(om itted in printing)





93

[fol. 1]
I n t h e  C ircu it  Court o f  t h e  T e n t h  J udicial C ircu it  o f  

A labama in  and for J efferson  C ounty

No. 20781

T h e  C ity  of B ir m in g h a m , 

vs.
R oy H u t c h in s o n .

A ppea l  B ond (o m itte d  in  p r in t in g )

[fol. 2]
In t h e  C ircu it  C ourt of t h e  T e n t h  

J udicial C ircu it  of A labama

No. 20781

C ity of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

R oy H u t c h in s o n , Defendant.

C o m pla in t—'Filed October 10, I960
Comes the City of Birmingham, A'ahama, a municipal 

corporation, and complains that Roy Hutchinson, 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 Loveinan’s Department Store, 
located at 216 North 19th Street, Birmingham, Alabama, 
after being warned not to do so, contrary to and in viola­
tion of Section 1436 of the General City Code of Bir­
mingham of 1944.

Watts E. Davis, Attorney for City of Birmingham.

[File endorsement omitted]





94

I n  t h e  C ir c u it  C ourt of t h e  T e n th  
J udicial C ircu it  of A labama

No. 20781

C ity  of B irm in g h a m ,

vs.
R oy H u t c h in so n .

Motion to S trike—Filed October 1 0 ,19G0

Comes now Roy Hutchinson, defendant in this cause, and 
moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sepa­
rately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so 

vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, as 
a citizen of the State of Alabama, and of the United States, 
constitutes an abridgment of the freedom of assembly, 
speech and liberties secured to the Defendant, by the 
[fol. 3] Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, 
as applied to the defendant, constitutes an abridgment 
of privileges and immunities guaranteed defendant, as a 
citizen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution. 5

5. That Section 824 of the Geneial City Code of the City 
of Birmingham, as applied to this defendant, a Negro





95

citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmond Pearson, Orzell 
Billingsley, Jr., Peter A. Hall, Attorneys for 
Defendant.

[File endorsement omitted]

I n t h e  C ircu it  Court of t h e  T e n t h  
J udicial C ircu it  of A labama

No. 20781

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

vs.
R oy H u t c h in so n .

D emurrers— Failed October 10,1960
Comes now Roy Hutchinson, defendant in this cause, and 

demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.
[fol. 4] 2. That the complaint, affidavit or information
upon which this cause is based is insufficient to support 
prosecution of this cause, in that no offense is charged 
which is cognizable by this Honorable Court.





96

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this 
defendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United States 
of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this de­
fendant, a citizen of the State of Alabama and of the 
United States, constitutes an abridgment of freedom of 
speech and assembly violative of rights and liberties se­
cured the defendant by the First and Fourteenth Amend­
ments to the Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen 
of the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, 
constitutes a denial of equal protection of the laws in viola­
tion of the Fourteenth Amendment to the Constitution of 
the United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Ilall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]



'



[fol. 5]
I n t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama

No. 20781

97

C ity of B ir m in g h a m , Plaintiff, 
versus

R oy'  H u t c h in s o n , Defendant.

M otion to E xclude t h e  E vidence—Filed October 10, 1960
1. The complaint charging defendant, a Negro, with 

violation of 1436 of the General City Code of Birming­
ham of 1944, to-wit, an alleged trespass upon land after 
being forbidden to enter or remain after told to leave 
is invalid in that the evidence establishes merely that 
defendant was peacefully upon the premises of Loveman’s, 
an establishment performing an economic function in­
vested with the public interest, as a customer, visitor, busi­
ness guest or invitee, and there is no basis for the charge 
recited by the complaint other than an effort to exclude 
defendant from Loveman’s Eating Facilities because of 
his race or color; defendant, at the same time is excluded 
from equal service at the preponderant number of other 
similar eating establishments in Birmingham, Alabama; 
thereby depriving him of liberty without due process of 
law and of the equal protection of the laws secured by the 
14th Amendment of the United States Constitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speaking 
and protesting against the practice, custom and usage of 
racial discrimination in Loveman’s, an establishment per­
forming an economic function invested with the public 
interest; that defendant peacefully was attempting to ob-





98

tain service in the facilities of Loveman’s in the manner 
of white persons similarly situated, and at no time was 
defendant defiant or in breach of the peace and was at all 
times upon an area essentially public, wherefore defen­
dant has been denied rights secured by the due process 
and equal protection clauses of the 14th Amendment of 
the United States Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Birming- 
[fol. 6] ham, Alabama to permit defendant, a Xegro, and 
other members of defendant’s race from enjoying the 
access to such stores, facilities and accommodations af­
forded members of other races; and that by this prosecu­
tion, prosecuting witnesses and arresting officers are at­
tempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to 
the Constitution of the United States.

4. The evidence against defendant, a Xegro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Loveman’s, a 
store open to the public, but had not been allowed to obtain 
food service on the same basis as that offered white per­
sons, because of defendant’s race or color; and, that in 
furtherance of this racially discriminatory practice of 
Loveman’s, defendant was arrested on the basis of race 
or color, under color of law, to enforce racially discrim­
inatory policy, thereby violating defendant’s rights under 
the equal protection and due process clauses of the 14th 
Amendment of the United States Constitution. 5

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a 
Xegro, was arrested and charged is unconstitutional on its





99

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 said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise defendant 
of the validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to defendant 
as to violate his rights under the due process clause of the 
14th Amendment of the United States Constitution.

6. Section 1436 of the General City Code of Birming­
ham of 1944 under which defendant, a Xegro, was arrested 
and charged with violation of trespass upon land after 
being forbidden to enter is on the evidence unconstitutional 
as applied to defendant in that it makes it a crime to be 
on property open to the public after being asked to leave, 
because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
[fol. 7] complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: Love- 
man’s and from which defendant was barred because of his 
race or color; that such denial was in accordance with a 
policy, custom and usage of Loveman's, of operating such 
facilities and services on a racially segregated basis, which 
policy, custom and usage violates the due process and 
equal protection clauses of the 14th Amendment of the 
Constitution of the United States.

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempting 
to use a facility, Loveman’s, open to the public, which was
denied to him solely because of race or color; th a t.............. ,
was and is offering, for a price, to serve all members of 
the public with food; that this public facility Loveman’s, 
is, along with others of a similar nature, performing a 
necessary service for the public, which in fact, would have 
to be provided by the state i f .......... and other like facilities





1 0 0

were all to withdraw said service; that having determined 
to offer said valuable service to the public,..................is re­
quired to provide such service in the manner of state 
operated facilities of a like nature, to-wit: That Love- 
man’s may not segregate or exclude defendant on the 
ground of race or color, in violation of the due process 
and equal protection clauses of the 14th Amendment of 
the United States Constitution.

Arthur D. Shores, J. Richmond Pearson, Orzell 
Billingsley, Jr., Attorneys for Defendant.

[File endorsement omitted]

[fol. 8]
I n t h e  C ircuit  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama

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

vs.
R oy H u tc h in so n .

Appealed from Recorder’s Court 
(Trespass After "Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

J udgment E ntry— Filed October 10,1900
This the 10th day of October, 1900, came Win. 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 mo­
tion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same





1 0 1

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 
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 defen­
dant is guilty as charged in said Complaint, and that he 
pay a fine of One Hundred ($100.00) dollars and costs of 
this cause.

J

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 suffi­
cient 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 Roy Hutchinson, 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.
[fol. 9] 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 Roy Hutchinson, 
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)





1 0 2

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-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  ̂ 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 deci­
sion 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.





[fol. 10]
I n  t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircuit  of A labama

No. 20781

103

C ity  of B ir m in g h a m , r Municipal Corporation, Plaintiff,
vs.

R oy H u t c h in so n , Defendant.

M otion for a N ew  T rial—Filed October 11,1900
Now comes the defendant, in the above styled cause, and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit the 11th day of October, 1900, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said Motion sets out and assigns the 
following separately and severally:

1. That the Judgment of the Court in said case, is 
contrary to the law.

2. For that the Judgment of the Court is contrary to the 
facts.

3. For that the Judgment of the Court is contrary to the 
law in the case.

4. In that the Judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the Judgment of the Court is so unfair, as to 
constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in over-ruling objections, by 

the defendant to the introduction of evidence on behalf of 
the City of Birmingham, Alabama, in this case.





104

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

11. The Court erred in overruling defendant’s demurrers 
filed in this cause.

12. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

13. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham, 
Alabama, in that the laws or ordinances, under which this 
[fol. 11] defendant was charged and convicted, and as 
applied to this defendant, constituted an abridgement of 
freedom of speech violative of rights and liberties secured 
to the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

14. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty, with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this cause.





105

17. That it appeared from the evidence that no owner 
of the premises involved had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured by 
the officials of the City of Birmingham, Alabama, without 
first having a complaint from such owner, or other person 
in charge of such premises.

18. For that it appears from the evidence that the defen­
dant was not prosecuted by the owner of private property, 
as provided for by the pertinent laws or ordinances of the 
City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant for trespass on private 
property.
' 20. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in the store.

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
[fob 12] Hall, J. Richmond Pearson, Oscar W. 
Adams, Jr., Attorneys for Defendant.

Order Overruling

The foregoing Motion being presented in open court, this 
the 11th day of October, 1960; the same being considered 
and understood, the Court is of the opinion that the same 
should be overruled.

George Lewis Bailes, Circuit Judge.

[File endorsement omitted]

A ppea l  B ond to Court of A ppeals  (o m itte d  in  p r in t in g ) .





106

[fol. 14]
I n  t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircu it  

o f  A labama in  and for J efferson  C ounty

No. 20781

T h e  C ity  of B ir m in g h a m , a Municipal Corporation,
versus

R oy H u t c h in so n .

Birmingham, Alabama 
Transcript of Evidence—October 10, 1960 

Before: Honorable George L. B ailes, Judge.

A ppearances :

For the City, Mr. Watts E. Davis.
For the Defendant, Messrs. A. D. Shores, Orzell Billings­

ley, Jr., Peter A. Hall, Oscar W. Adams, Jr., J. Richmond 
Pearson.

[fol. 16] Proceedings
The Court: Let the record show that there is a stipula­

tion that Robert Kind and Roy Hutchinson were both pres­
ent in Court and tried together. Let the record show that.

Mr. Billingsley: Your Honor, we filed the same motions 
as in the other cases with the understanding that we will 
have the same rulings and an exception.

Mr. Davis: If the Court pleases, I believe there are some 
witnesses in this case in the Courtroom and they have 
asked for the rule in each of the cases.

(Witnesses placed under the Rule.)
Mr. Davis: Mr. Martin.





107

E lwood K. M artin , ca lled  a s  a  w itn ess , h a v in g  been  f irs t 
d u ly  sw o rn , te s tif ied  a s  fo llo w s:

Direct examination.

By Mr. Davis:
Q. Will you state your full name, please, sir?
A. Elwood K. Martin.
Q. You are employed by the City of Birmingham as a 

police officer?
A. Yes, sir.
Q. Were you so employed on March 31,1960 ?
A. Yes, sir.
Q. Mr. Martin, on March 31, of this year did you receive 

a call or an order to go to Loveman’s Department Store?
A. Yes, sir.
Q. Is that in the City of Birmingham?
A. Yes, sir.
Q. Third Avenue and 19th Street North?
A. Yes, sir.
Q. Did you go to the dining or eating area inside of 

[fol. 17] Loveman’s?
A. Yes, sir, I did.
Q. What did you observe taking place in and about near 

or at the eating place when you arrived there?
A. I noticed that a rope had been tied from one post to 

another post going up to the mezzanine or the eating place 
of Loveman’s with a sign on it stating closed. I went over 
that and went up to the cashier’s cage there at Loveman’s. 
I noticed two Negro boys sitting to the right of the 
Cashiers’ cage at the tables there where food is served.

Q. Did you have any conversation yourself with these 
boys ?

A. With the boys?
Q. Yes, sir.
A. None other than to tell them they were under arrest.
Q. Was there any conversation—I withdraw that—how 

did you receive word to go to Loveman’s ?
A. A three-wheeled motor cycle came up, Officer J. L. 

Holt, and told me to get on his motor cycle and go with 
him to Loveman’s.





108

Mr. Davis: I believe that is all.

Cross examination.

By Mr. Adams:
Q. Officer Martin, is there any sign where these two 

defendants were sitting indicating whether this was white 
or Negro eating facilities?

A. I did not observe any signs other than the closed sign.
Q. "Were the lights turned off ?
A. I can’t recall.
Q. Was there anybody else seated at the counter besides 

these two defendants?
A. There was no one seated at any table. There is no 

counter there the best I can remember. They are all tables. 
I believe there was no one else seated at any table.

Q. Did anybody from Loveman’s inform you that they 
had told these two hoys to leave?
[fol. 18] A. They did not inform me personally. They 
informed one of my superior officers.

Q. Do you know that of your own personal knowledge?
A. I don’t know that of my own personal knowledge.
Q. Who was it that informed him ?
A. I do not know what capacity he was but his name 

was either Schultz or Smith. I forget which one his name 
was. Schultz I believe or Smith. I forget which one it was.

Q. Did you issue a warrant for the arrest of these two 
boys ?

A. Did I issue a warrant?
Q. Yes.
A. No, I did not.
Q. Did you have a warrant for their arrest?
A. I did not.
Q. Did anyone on the premises when you arrived on the 

premises inform you that they had told these boys to 
leave ?

A. They did not tell me personally that they had told 
them to leave. They told my superior officer.

Q. Is Loveman’s a store that is offering merchandise to 
the public generally?



.



109

A. I am under tlie assumption they do. I do not know 
personally.

Q. Do you know whether or not they have separate 
lunch counters for Negroes and for whites?

A. I  do not know that.
Q. Were these two defendants boisterous when you 

arrived at the scene ?
A. No, they were not.
Q. Was there any disorder at the lunch table ?
A. There was no disorder other than the fact that they 

were sitting at the table. As far as their, as far as them 
being disorderly they were not disorderly.

Q. What charge did you place against these defendants, 
[fol. 19] Officer Martin?

A. Trespassing after warning.
Mr. Adams: That is all.
Mr. Davis: No further questions. Mr. Schmid.

C arl A. S c h m id , ca lled  a s  a  w itn e ss , h a v in g  been  f irs t  
d u ly  sw orn , te s tified  a s  fo llo w s :

Direct examination.
i

By Mr. Davis:
Q. Will you state your full name?
A. Carl A. Schmid.
Q. By whom are you employed, Mr. Schmid ?
A. I personally am employed by Price Candy Company 

of Kansas City.
Q. Were you employed by Price Candy Company on 

March 31, of this year, sir ?
A. Yes.
Q. Did you have a concession in Loveman’s ?
A. Yes.
Q. What is their concession ?
A. All of the food departments, candy factory and retail 

candy departments.
Q. I will ask you if on the morning of March 31, of this 

year if two colored boys came and sat down in the dining 
area at Loveman’s ?





110

A. Yes, sir.
Q. I believe that is on the mezzanine ?
A. That is right.
Q. Did you have occasion to talk to these two boys on 

that occasion!
A. No, I did not.
Q. Did anyone employed by your company or by Love- 

man’s ask either of these boys to move?
A. Yes.

[fol. 20] Mr. Hall: If Your Honor please, we object to 
that answer unless—he said did anyone ask them to move 
without saying it was in his presence.

The Court: Did he hear anyone suggest to the two 
lads that they moved?

Mr. Hall: It was not asked that way. He asked did any­
one tell them to move.

The Court: Did you hear them?
The Witness: Yes.
Mr. Hall: If he heard it that is different.
Q. Did anyone in your hearing tell either or both of 

these two boys to move?
A. Yes.
Q. Who was that?
A. Mr. Kidd.
Q. Mr. Kidd?
A. Mr. Kidd, yes.
Q. What is his capacity or connection there?
A. He is in the Protection Department.
Q. Is that the store detective?
A. Store detective.
Q. Who is he employed by ?
A. Loveman’s.
Q. Now the conversation he had with these two hoys 

was in your presence?
A. I was present, yes.
Q. What did he tell them to do ?
A. He announced in general terms that the tearoom was 

closed and for everyone please to leave.
Q. Did everyone leave?
A. Most of them. I mean quite a few people left. Of





I ll

course some of them started to eat and tried to finish their 
luncheon naturally.

Q. Were the two colored boys eating?
[fol. 21] A. No.

Q. Did they make any remarks or statement to Mr. Kidd 
in your presence?

A. No.
Q. And did they get up and leave ?
A. No.
Q. Did they remain seated until the police arrived?
A. Yes.
Mr. Davis: That is all.

Cross examination.

By Mr. Adams:
Q. How do vou spell your name?
A. S-C-II-M-I-D.
Q. When these two defendants were seated there, this 

was at Loveman’s?
A. Yes.
Q. How many whites were also seated there?
A. Oh, it was early in the morning and I don’t think 

there were more than maybe 40 or 50 there.
Q. "What was the name of the person who made the 

statement, you made the statement in your words in gen­
eral terms that the lunchroom was closed. Who was that?

A. Mr. Kidd.
Q. Now when he did that how many whites left and how 

many were left sitting there after that statement was made?
A. Well, as I said, they gradually moved out. Some of 

them that just had coffee or Coca-Cola left immediately, 
but some of them had light luncheons or regular luncheons 
did not leave.

Q. They stayed there?
A. Until they finished their luncheon, yes.
Q. Were you there when Officer Klwood Martin came?
A. Well I am not sure about the name, but the Lieutenant 

in the case was Mr. Purvis. He came to see me and asked, 
“Are you Mr. Schmid?” And I said, yes.





112

[fol. 22] Q. That is all right. When the officer did come 
the two defendants were still seated in the lunchroom, is 
that correct?

A. Uh-huh.
Q. Now what happened when he arrived and they were 

still seated there?
A. Mr. Purvis came to me and he said, ‘‘Are you the 

Manager?” And I said, “Yes.” lie said someone called us 
that you had two people in here that were trying to be 
served and I said, “Yes,” and he said, “Where are they?” 
And I said, over there.

Q. Did he say two people or did he say two Negroes?
A. Two people.
Q. Do you in Loveman’s call the police department when 

two people try to be served?
A. As far as I am concerned at Loveman’s if there is 

any difficulty regardless of what they are, disturbance of 
the peace, or anything, we call the protective department.

Q. Was there any disturbance of the peace?
A. It naturally is you know in this case.
Q. What happened?
A. Well immediately the waiters went off the floor. They 

didn’t want to wait on anyone. The waiters were leaving.
Q. They left the premises?
A. They left the floor immediately.
Q. That is when you called the police?
A. I didn’t call them. I don’t know who called but my 

secretary and the cashier had strict instructions if any­
thing should come up like that, any disturbance to call 
the detective. Now who called, I don’t know.

Q. What was the disturbance, Mr. Schmid?
A. Just the natural thing, it was an unusual thing to 

happen.
Q. What was it that was unusual?
A. When the waiters left the floor.
Q. And someone called the police officers because the 

waiters left the floor?
[fol. 23] A. I don’t know who called the police. I know 
someone called the Protective Department in the store. 
I was not on the floor at the time myself.

Q. Now, Mr. Schmid, isn’t there, what you are saying





113

isn’t it that the police officers were called because two 
Negroes were sitting there. Isn’t that what you are trying 
to say?

A. No, I wouldn’t know.
Q. Isn’t that unusual?
A. Oh, it is very unusual, I think, yes.
Q. Is that what caused the disturbance?
A. In my opinion it did.
Q. Now when the police officer came did he put these two 

Negroes under arrest?
A. I don’t know.
Q. Did you see the police officers take the two Negroes- 

out?
A. I don’t think I was there right at the time when he 

took them out if he did take them out.
Q. When did you find out that they were gone?
A. Well I don’t know. My office is back in the corner. 

I was not right there when they took them out.
Q. When the officers came you left, is that right?
A. Heft.
Q. In the midst of the disturbance you left? Now how 

many whites were still sitting there when the two Negroes 
were there,;when the police officers came?

A. Oh, I would say probably 40, to start, and there was 
probably about 25 there.

Q. Twenty-five there ?
A. Yes.
Q. Did they take any of them out?
A. No, not that I know of.
Q. Did they arrest any of the whites?
A. If they did I don’t know anything about it.

[fob 24] Q. You never heard anything about it?
A. No.
Q. You have not been called on to testify about any of 

them ?
A. No.
Q. Do you have a sign on the place for whites only?
A. No.
Q. Do you have any separate accommodations for 

Negroes at Loveman’s?
A. Not to my knowledge.



.



114

Q. You just have one eating facility?
A. We have two, one in the basement.
Q. Is that for whites only?
A. Yes.
O. And the one upstairs is for whites only, too ?
A. Yes.
Q. Mr. Schmid, Loveman’s is a Department Store serv­

ing general households, furnishings, notions and general 
goods to the public, is that correct?

A. I presume so, yes.
Q. Is your company so far as you know authorized to 

have an operation in Loveman’s?
A. Uh-huh.
Q. Your position is what, Mr. Schmid?
A. I am the Manager.
Q. You work under I think the Price Candy Company?
A. But we follow Loveman’s regulations and policies.
Mr. Adams: That is all.
Mr. Davis: No further questions. Would you tell Mr. 

Kidd to come in.

D. V. K idd, ca lled  as a  w itn ess , h a v in g  been f irs t  du ly  
sw orn , te s tified  a s  fo llo w s :

[fol. 25] Direct examination.

By Mr. Davis:
Q. Will you state your full name, please, sir?
A. D. V. Kidd.
Q. Are you now and were you employed on March 31, 

1960 with Loveman’s Department Store?
A. I was.
Q. It is in the City of Birmingham?
A. Yes.
Q. Mr. Kidd, in what capacity were you then affiliated 

with Loveman’s, March 31?
A. Store Detective, store protection as it is referred to.
Q. Do you recall any unusual situation existing on the 

morning of March 31, I960 in and around the mezzanine 
eating area at Loveman’s?





115

A. There was two colored boys sitting on the mezzanine 
and I notified the people who were milling around, I noti­
fied all of the people, white people, to leave as we were 
closing the mezzanine in their presence,—I did not directly 
speak to the two colored hoys who were sitting at a table, 
but they overheard what I told the white people that we 
were closing the lunch room.

Mr. Hall: If Your Honor please, we object to Mr. Kidd’s 
conclusion that the defendants overheard anything and 
ask it be stricken.

The Court: All right.
Q. They were seated at tables on the mezzanine?
A. Yes, sir.
Q. There are no counters?
A. It was at tables spaced approximately three feet 

apart in either direction from wall-to-wall.
Q. Do you know the names of these two boys, Mr. Kidd?
A. No, sir, I do not.

[fol. 26] Q. Do you see either one of them in the Court­
room here?

A. Well, I did not pay any attention to who they were 
because their backs were to me and I was notifying the 
people in the adjacent area.

Q. Did the police officer arrest them in your presence?
A. No, sir, I was in the back of the mezzanine inviting, 

notifying people we were closing the mezzanine at the time 
when the officers came in and I seen them leaving going 
downstairs to the first floor.

Q. And there were only two colored boys there that 
morning seated in the eating area?

A. Yes, sir.
Q. The table these two boys were seated at was near or 

adjacent to a table occupied by white people?
A. It was.
Q. Did you see, did you say in their presence that the 

place was closed, in their presence and hearing?
A. Yes, sir, that we were closing the place and would 

they please—
Q. Excuse me, go ahead.





116

A. That we were closing the place and would they please 
move.

Q. How many times did you announce that in the eating 
area?

A. Three times.
Q. Three times?
A. At three different tables adjacent to the table they 

were occupying.
Q. Did you announce the place was closed?
Is that the way you put it?
A. Yes, sir, closed.
Q. Did you hang up a sign of some sort in the area in­

dicating the place was closed?
A. Yes, sir, we did.
Q. Did these boys ask for service after the whites had 

gone out?
[fol. 27] A. That I do not recall, because I was only on 
the mezzanine area back near the wall. I could not see 
them or hear what they had to say.

Q. How near were you to them when you announced 
the place was closed on the occasion you were close to 
them?

A. Three feet.
Q. Three feet?
A. Three feet on either side on three different sides 

which was three different tables that bordered the table 
they were occupying.

Q. Did they make any reply whatever to you?
A. No, sir.
Q. Did they move at all?
A. No, sir, they remained seated.
Q. How long did they remain seated after you announced 

the place was closed?
A. They were there I would say about five minutes. By 

that time the officers had arrived and were going down 
the stairway with them.

Mr. Davis: I believe that is all.





117

Cross examination.

By Mr. Adams:
Q. What was your reason for closing the place?
A. Mr. Schmid had ordered the place to be closed. Mr. 

Schmid is the Manager for the cafeteria or eating room, 
tearoom as it is referred to by the company.

Q. Would your statement be the same if I informed you, 
Mr. Schmid’s testimony was to the effect that he did not 
order these boys to leave, he did not close the place down 
but it was your instructions that the place be closed.

A. Mr. Schmid placed a sign up when I announced the • 
place was closed.

Q. In other words, he did it after you made your state- 
[fol. 28] ment that the place was closed ?

A. Yes, sir.
Q. Well it was your statement that closed the place 

down ?
A. That we were closing the place.
Q. You were the one that made that statement. Now 

what was it Mr. Kidd that caused you to close the place 
down ?

A. The commotion that was on the mezzanine. I did not 
know what was the cause of the commotion. When I began 
closing the place down then I noticed after the crowd had 
dispersed that the two colored boys were occupying a table.

Q. What was the commotion you referred to?
A. The people were standing up milling around.
Q. Don’t people stand up and mill around frequently?
A. Not in that order.
Q. Mr. Kidd, if people had been standing up milling 

around, would you have closed the place down, if there 
had been no Negroes sitting there?

Mr. Davis: We object to that as speculative and calls 
for a mental operation incompetent, irrelevant, immaterial.

The Court: I would leave that out.
Mr. Adams: We except.
Q. Were these Negroes who were seated there boisterous, 

rude or anything of the nature?



.



118

A. No, they just remained seated.
Q. And did quite a few of the white patrons still remain 

seated while they were seated there!
A. Definitely not. That is the way the commotion started 

by the people getting up and leaving the area.
Q. All of the white people got up when these Negroes 

were seated there!
A. They did.
Q. They left their food!
A. Left their food.
Q. Didn’t finish their plates or anything!

[fol. 29] A. They did not.
Q. Well now isn’t it a fact some of them did move and 

Mr. Kidd didn’t some of them stay there and finish their 
meals !

A. They did not.
Q. All of them got up and left?
A. Eight.
Q. Everyone?
A. Eight.
Q. Did you see the police officers arrest the two defen­

dants?
A. I seen them coming down the stairway from the 

mezzanine to the first floor with them.
Q. Did you call the City of Birmingham?
A. I did not.
Q. Do you know who called the City of Birmingham?
A. I do not.
Q. So far as you know didn’t anybody call them, is that 

right?
A. That is right.
Q. Did you tell any officer what had happened when he 

got there?
A. To the best of my knowledge I don’t recall having 

offhand a conversation outside that I had noticed the 
people were milling around and I had found the two colored 
boys sitting there and we had closed the tea area.

Q. When the officers came where was Mr. Schmid?
A. He was on the mezzanine.
Q. Was he there when the officers took the two Negro 

defendants away?



.



119

A. That I wouldn’t say because I was in the back of the 
mezzanine and the pillars of the mezzanine obstructed my 
view.

Q. Do Negroes trade at other departments in Loveman’s ?
A. They do.
Q. Do they have separate accommodations in any other 

department at Loveman’s T 
[fol. 30] A. That I do not recall.

Q. You have never seen any, have you!
A. No.
Q. Do you have any separate accommodations at all for 

Negroes and whites in Loveman’s!
A. We do up on the seventh floor, a place that we may . 

be able to serve colored.
Q. Food!
A. Yes.
Q. And that is for Negroes!
A. Well the colored use that area, that particular area.
Q. Can whites use it!
A. Well 1 have never been in the place. I wouldn’t recall 

whether they have any signs or not.
Q. Do you know whether they do serve Negroes there!
A. They do serve them.
Q. Do they serve Negroes in the place where these two 

Negroes were arrested!
1 A. I don’t recall ever seeing any colored served in the 

tearoom.
Q. Do you know whether or not they would be served!
A. I don’t know what the store policy is.
Mr. Davis: We object to that. It is all incompetent, ir­

relevant and immaterial. I have tried to be patient and 
tolerant.

Mr. Adams: Judge, I think it is quite relevant. Our 
theory of the case is that Loveman’s is a public department 
store, invites people and the public generally to purchase 
goods for their comfort and well-being and they invite 
them to come in. People are invitees in Loveman’s and 
they have no policies so far as separation or discrimination 
in any place except their lunchroom and tearoom. And 
we contend that policy and the law which permits it vio-





120

lates these defendants’ rights. So therefore I think all 
that I have said is material, whether you agree with that 
[fol. 31] position or not, it is certainly material on the 
issues raised in this case.

The Court: I am ashamed to admit I didn’t get the last 
question.

(Question read as follows: Do you know whether or not 
they would be served?)

The Court: I don’t think you could ask what would 
happen in the subjunctive mood. I don’t think you can do 
that, but leave it in.

Q. I wanted to ask him—do you know whether Love- 
man’s is a store which invites people and the public gen­
erally to purchase goods there?

A. They do.
Mr. Davis: What was your answer?
The Witness: They do.
Q. Colored and white? Do Negroes and white come into 

Loveman’s and purchase goods?
A. They do.
Q. Frequently?
A. They do.
Mr. Adams: That is all.

Redirect examination.

By Mr. Davis:
Q. I believe you were asked the question in substance 

so far as you know no one ’phoned the police. Do you have 
any personal knowledge on the subject of who, if anyone, 
did call the police?

A. No, I do not.
Q. You have no personal knowledge whatever on the 

subject?
A. No, sir, I do not have.
Q. He was talking about members of both races being 

invited into the store. Is it your information that members 
of both races are invited to eat on the mezzanine?





121

A. Not that I know of.
[fol. 32] Mr. Davis: That is all.

Recross examination.

By Mr. Adams:
Q. Do you know have they been told not to come and 

eat in the tearoom in Loveman’s?
Mr. Davis: We object to that as incompetent, irrelevant, 

and it wouldn’t make any difference what they have done 
in the past, but on this occasion.

Mr. Adams: Counsel asked if Loveman’s had invited 
them to come and eat together on the mezzanine and I 
asked whether they have been told not to come and eat.

Mr. Davis: They were invited not to on this occasion 
at least.

The Court: Well let him answer it if he knows.
Q. Have they been invited not to eat there!
A. Well in my short time T have been there I have never, 

the policy of the store I do not know, I have never been 
informed in regard to that although on all of the occasions 
I visited the mezzanine I have never seen any colored eat­
ing on the mezzanine.

Q. You don’t know if anybody at Loveman’s called the 
City of Birmingham?

A. I do not know.
Q. Did you sign any complaint or any warrant for the 

arrest of these two defendants?
A. Not that I recall did I sign any.
Q. Your position is what?
A. Store protection or store detective in other words.
Q. That would come in your department?
A. Well to a certain extent, it would.
Q. You would be the person to do so?
Mr. Davis: We object to that.
The Court: To do what?
Mr. Adams: To sign a complaint or warrant or charge 

against anybody.





122

[fol. 33] The Court: He couldn’t sign a warrant I  am 
sure unless he has a deputy’s commission.

Mr. Adams: Not as a police officer.
The Court: Not as anybody. He just is without authority 

to sign a warrant.
Mr. Adams: Could he sign an affidavit?
The Court: Oh, anybody can do that.
Q. You did not sign an affidavit, did you?
A. I have not.
Mr. Adams: That is all.
Mr. Davis: That is all. The City rests if the Court 

pleases.
Mr. Shores: We rest and Your Honor we would like to 

file motions in both cases, motions to exclude. I want to 
point out in these two motions in addition to the other 
grounds there is no testimony that anybody warned the 
parties to move and that they remained after warning. 
Did Your Honor overrule the motion to exclude?

The Court: Yes, I thought we had stipulated we would 
have the same motions and the same demurrers in all 
of the cases.

Mr. Shores: You didn’t stipulate the same ruling.
The Court: And the same ruling.
Mr. Adams: In some of the cases the evidence is not 

exactly the same and we reserve the right to make observa­
tions where it is not.

The Court: Of course you have a perfect right to do that 
but the stipulation is that the ruling will be the same in 
each of them up to now.

[fol. 34] Transcript of Sentencing (omitted in printing).

[fol. 39] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).





123

[fol. 41]
I n t h e  C ourt of A ppea ls  of A labama 

N o.........................

Roy H u t c h in s o n , Appellant, 
vs.

T h e  C ity  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, 
had and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this ap­
pellant, and for error, assigns each the following separately 
and severally:

1. The Court erred in over-ruling Appellant’s Motion to 
Strike the Complaint fded in this cause, to which ruling 
the Appellant took exceptions. (Tr. 2, 3, 8 & 16).

2. The Court erred in over-ruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took 
exceptions. (Tr. 3, 4, 8 & 16).

3. The Court erred in over-ruling the Appellant’s Mo­
tion to Exclude the Evidence filed in this cause, to which 
ruling Appellant took exceptions. (Tr. 5, 7, 8 & 19).

4. The Court erred in over-ruling Appellant’s Motion 
for a New Trial. (Tr. 9,10,12 & 38).

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar IV. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Certificate of Service (omitted in printing).





124

[fol. 42]
I n t h e  C ourt of A ppeals  of t h e  S tate of A labama

_______ ____ J udicial  D epa rtm en t

October Term, 1960-61
6 Div. 798

R oy H u t c h in s o n ,

v.

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

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January 30, 1961 
Transcript Filed

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

this cause for decision.

Order of A ffirm a n ce— 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, 
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.
[fol. 43] Application for Rehearing and Order Overruling 
(omitted in printing).
[fol. 43a] Proceedings on Petition for Certiorari (omitted 
in printing).





[fol. 44]
In  t h e  S u pr em e  C ourt of A labama 

Sixth Division

125

No................
Ex Parte: Roy Hutchinson

R oy H u t c h in s o n , Appellant, 
vs.

C ity  of B ir m in g h a m , Appellee.

P etitio n  for C ertiorari—Filed July 3,1961

To  the H onorab le  Chief  Jus t ic e  and  A s s o c ia t e  J u s t i c e s  of  
the  S u p r e m e  Court  of  A la b a m a

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J. Richmond Pearson, and re­
spectfully petitions this Honorable Court to review, revise, 
reverse and hold for naught that certain Judgment of the 
Court of Appeals, on to-wit: May 30, 1961, wherein Roy 
Hutchinson was Appellant and the City of Birmingham 
was Appellee, which Judgment affirms the Judgment of the 
Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a Rehearing of said cause and Brief in sup­
port thereof were duly filed by your petitioner within the 
time required by law, and that said application for rehear­
ing was overruled by said Court of Appeals on the 20th day 
of June, 1961.

3. Your petitioner respectfully shows unto the Court 
that this cause arose from a complaint filed by the City of 
Birmingham, charging your petitioner with violating Sec­
tion 1436 of the General City Code of Birmingham 1944,
viz:





126

“ 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 discharge of official 
duties.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the Com­
plaint was so vague and indefinite as not to apprise the 
Appellant of what he was called upon to defend, and fur­
ther, that the ordinance which formed the basis of the 
prosecution, as applied to appellant, constituted an abridge­
ment of the privileges and immunities guaranteed by the 
Constitution of the United States and that the ordinance 
was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the 
Demurrers, whereupon petitioner was tried without a jury, 
and was found guilty of Trespass after Warning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced to 
a term of Thirty (30) days of hard labor for the City of 
Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence, at the close of the city’s case, which Motion was 
[fol. 45] denied. After Judgment and_sentence, petitioner 
filed a Motion for a New Trial, which Motion was denied, 
and petitioner perfected his appeal.

7. Your petitioner further shows unto your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause, upon the opinion judg­
ment rendered in the case of James Gober vs. City of Bir­
mingham, Sixth Division-797, decided May 30, 1961, which 
case had a different factual situation from petitioner’s case; 
and there was a different Proposition of Law involved in 
petitioner’s case, not involved in case of Gober vs. City of 
Birmingham.

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:





127

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in viola­
tion of the Fourteenth Amendment to the United States 
Constitution.

B. That the Ordinance and Complaint, the basis of the 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of the 
equal protection of the Laws, all in violation of the Four­
teenth Amendment to the United States Constitution.

C. That to warrant a conviction, the evidence must iden­
tify the accused, as the person who committed the crime.

The Court of Appeals erred in failing to rule that the 
conviction of petitioner was a violation of due process of 
law, an abridgement of the privileges and immunities, equal 
protection of the law, and a violation of the Fourteenth 
Amendment to the Constitution of the United States.

The Court of Appeals erred in failing to rule that to 
warrant a conviction, the evidence must identify the ac­
cused as the person who committed the crime.

Wherefore, your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the Seal 
of this Court directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete Transcript of Record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that this 
cause may be reviewed and determined by this Honorable 
Court, as provided by law and the rules and practice of this 
Court, and that this Court thereupon proceed to review and 
correct the errors complained of and to reverse the Judg­
ment of the Court of Appeals or render such Judgment as 
said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Cer­
tificate of Affirmance of said cause, during the pendency of 
this petition.





128

[fol. 46] And petitioner prays for such other, further and 
additional relief in the premises, as to this Court may seem 
appropriate, and to which he may be entitled, and your 
petitioner will ever pray.

Respectfully submitted,
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar IV. Adams, J. Richmond Pearson, By 
Arthur D. Shores, Attorneys for Appellant.

D u ly  sworn  to b y  A r t h u r  D. Shores ,  ju r a t  o m it te d  in 
prin t ing.

Certificate of Service (omitted in printing).

[fol. 47] Order Denying Petition for Writ of Certiorari 
(omitted in printing).

[fol. 48] Application for Rehearing (omitted in printing).

[fol. 49] Order Overruling Application for Rehearing 
(omitted in printing).

[fol. 50] Clerks’ Certificates to foregoing transcript 
(omitted in printing).





129

[ f o l .1 ]
I n  t h e  C ircu it  C oubt of t h e  T e n t h  J udicial C ircuit 

of A labama, in  and for J efferson  County

No. 20783

T h e  C ity  of B ir m in g h a m , 

vs.

R obert J. K in o .

A ppeal  B ond (o m itte d  in  p r in t in g )

[fol. 2]
I n  t h e  C ircu it  C ourt of t h e  T e n th  J udicial C ircuit  

o f  A labama

No. 20783

C ity  of B irm in g h a m , a Municipal Corporation, Plaintiff,
vs.

R obert J .  K in g , Defendant.

C om plaint— Filed October 10, 19G0
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that Robert J. King, 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 Loveman’s Department Store, 
located at 216 North 19th Street, 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.

Watts E. Davis, Attorney for City of Birmingham.

[File endorsement omitted]





130

I n t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircu it  
of A labama

No. 20783

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

vs.
K obert J .  K in g .

M otion  to S t r ik e— Filed October 10, 1960
Comes now Robert J. King, defendant in this cause, and 

moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sepa­
rately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so vague 

and indefinite, as not to apprise this defendant of what 
he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, 
[fol. 3] as a citizen of the State of Alabama, and of the 
United States, constitutes an abridgment of the freedom 
of assembly, speech and liberties secured to the Defendant, 
by the Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, 
as applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution. 5

5. That Section 824 of the General City Code of the 
City of Birmingham, as applied to this defendant, a Negro 
citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the





131

Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmon Pearson, Orzell Bill­
ingsley, Jr., Peter A. Hall, Attorneys for Defen­
dant.

[File endorsement omitted]

I n  t h e  C ir c u it  C ourt of t h e  T e n t h  J udicial C ircu it  
of A labama

No. 20783

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

vs.
R obert J .  K in g .

D em urrers— Filed October 10, 1960
Comes now Robert J. King, defendant in this cause, and 

demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com- 
[fol. 4] plaint in this cause, does not charge defendant 
with any offense under the Constitution and laws of the 
State of Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prose­
cution of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.





132

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this 
defendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the I nited States 
of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this defen­
dant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech 
and assembly violative of rights and liberties secured the 
defendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of priv­
ileges and immunities guaranteed defendant as a citizen 
of the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, con­
stitutes a denial of equal protection of the laws in violation 
of the Fourteenth Amendment to the Constitution of the 
United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Bieh- 
mond Pearson, Peter A. Hall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]





133

[fol. 5]
I n t h e  C ircu it  Court of t h e  T e n t h  J udicial C ircu it  

o f  A l a b a m a

No. 20783

C ity  of B ir m in g h a m , Plaintiff, 
versus

R obert J .  K in g , Defendant.

M otion to E xclude t h e  E vidence— Filed October 10, 1960
1. The complaint charging defendant, a Negro, with 

violation of 1436 of the General City Code of Birming­
ham of 1944, to-wit, an alleged trespass upon land after 
being forbidden to enter or remain after told to leave is 
invalid in that the evidence establishes merely that defen­
dant was peacefully upon the premises of Loveman’s, an 
establishment performing an economic function invested 
with the public interest, as a customer, visitor, business 
guest or invitee, and there is no basis for the charge re­
cited by the complaint other than an effort to exclude 
defendant from Loveman’s Eating Facilities because of 
his race or color; defendant, at the same time is excluded 
from equal service at the preponderant number of other 
similar eating establishments in Birmingham, Alabama; 
thereby depriving him of liberty without due process of 
law and of the equal protection of the laws secured by the 
14th Amendment of the United States Constitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speak­
ing and protesting against the practice, custom and usage 
of racial discrimination in Loveman’s, an establishment 
performing an economic function invested with the public





134

interest; that defendant peacefully was attempting to ob­
tain service in the facilities of Loveman’s in the manner 
of white persons similarly situated, and at no time was 
defendant defiant or in breach of the peace and was at 
all times upon an area essentially public, wherefore defen­
dant has been denied rights secured by the due process and 
equal protection clauses of the 14th Amendment of the 
United States Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the pur­
pose of speaking and otherwise peacefully protesting in 
public places the refusal of the preponderant number of 
stores, facilities and accommodations open to the public in 
[fol. 6] Birmingham, Alabama to permit defendant, a 
Negro, and other members of defendant’s race from enjoy­
ing the access to such stores, facilities and accommodations 
afforded members of other races; and that by this prose­
cution, prosecuting witnesses and arresting officers are 
attempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to the 
Constitution of the United States. 4 5

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Loveman’s, a 
store open to the public, but had not been allowed to obtain 
food service on the same basis as that offered white per­
sons, because of defendant’s race or color; and, that in 
furtherance of this racially discriminatory practice of 
Loveman’s, defendant was arrested on the basis of race 
or color, under color of law, to enforce racially discrimina­
tory policy, thereby violating defendant’s rights under 
the equal protection and due process clauses of the 14th 
Amendment of the United States Constitution.

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a





135

Negro, was arrested and charged 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 in­
dividual’s whim, in that said statute does not require that 
the person making the demand to leave present documents 
or other evidence of possessory right sufficient to apprise 
defendant of the validity of the demand to leave, all of 
which renders the statute so vague and uncertain as applied 
to defendant as to violate his rights under the due process 
clause of the 14th Amendment of the United States Con­
stitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to be on 
property open to the public after being asked to leave, 
because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
[fol. 7] complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: and 
from which defendant wafe barred because of his race or 
color; that such denial was in accordance with a policy, 
custom and usage of Loveinan’s, of operating such facilities 
and services on a racially segregated basis, which policy, 
custom and usage violates the due process and equal pro­
tection clauses of the 14th Amendment of the Constitution 
of the United States.

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempting 
to use a facility, Uoveman’s, open to the public, which 
was denied to him solely because of race or color; that 
Loveman’s, was and is offering, for a price, to serve all 
members of the public with food; that this public facility 
Loveman’s, is, along with others of a similar nature, per-





136 i

forming a necessary service for the public, which in fact, 
would have to be provided by the state if Loveman’s and 
other like facilities were all to withdraw said services; 
that having determined to offer said valuable service to 
the public, Loveman’s is required to provide such service 
in the manner of state operated facilities of a like nature,
to-wit: That ....................................  may not segregate or
exclude defendant on the ground of race or color, in vio­
lation of the due process and equal protection clauses 
of the 14th Amendment of the United States Constitution.

Arthur D. Shores, J. Richmond Pearson, Orzell Bill­
ingsley, Jr., Attorneys for Defendant.

[File endorsement omitted]

[fol. 8]
I n t h e  C ircu it  C ourt of t iie  T e n t h  J udicial C ircuit 

of A labama

Appealed from Recorder’s Court 
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

C ity  of B ir m in g h a m ,
1

VS.

R obert J .  K in g .

J udgm ent  E ntry— October 10, I960
This the 10th day of October, I960, 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 mo­
tion being considered by the Court, it is ordered and ad-





137

judged 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
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 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 ac­
tion 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 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 
Birmingham, or to confess judgment with good and suffi­
cient 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 Robert J. King, 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.
[fol. 9] 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 Robert J. King, 
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 ($IS.75)



'if!-



138

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-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.





139

[fol. 10]
I n t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircu it  

of A labama

No. 20783

C ity of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

R obert J .  K in g , Defendant.

M otion  for a N ew  T rial—Filed November 28, 1960
Now comes the defendant, in the above styled cause, and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to wit the 11th day of October, I960, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said Motion sets out and assigns the 
following separately and severally:

1. That the Judgment of the Court in said case, is con­
trary to the law.

2. For that the Judgment of the Court is contrary to 
the facts.

3. For that the Judgment of the Court is contrary to 
the law in the case.

4. In that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the Judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in over-ruling objections, 

by the defendant to the introduction of evidence on behalf 
of the City of Birmingham, Alabama, in this case.





140

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

11. The Court erred in overruling defendant’s demurrers 
filed in this cause.

12. The Court erred in overruling the defendant’s Motion 
to Strike the Complaint in this cause.
[fol. 11] 13. The Court erred in finding the defendant
guilty of violating the laws or ordinances of the City of 
Birmingham, Alabama, in that the laws or ordinances, 
under which this defendant was charged and convicted, 
and as applied to this defendant, constituted an abridge­
ment of freedom of speech violative of rights and liberties 
secured to the defendant by the First and Fourteenth 
Amendments to the Constitution of the United States of 
America.

14. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty, 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this case.





141

17. That it appeared from the evidence that no owner 
of the premises involved, had caused the arrest and prose­
cution of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, with­
out first having a complaint from such owner, or other 
person in charge of such premises.

18. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant for trespass on private 
property.

20. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in the store.

[fol. 12] Arthur D. Shores, Orzell Billingsley, Jr., 
Peter A. Hall, J. Richmond Pearson, Oscar W. 
Adams, Jr., Attorneys for Defendant.

Order O verruling

The foregoing Motion being presented in open court, 
this the 11th day of October, 19G0; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.

Geo. Lewis Bailes, Circuit Judge.

[File endorsement omitted]

Appeal Bond to Court of Appeals (omitted in printing).



.



142

[fol. 14]
T ranscript of E vidence—October 10,1960 

(omitted in printing)

C o u n sel’s N ote R e R ecord

The parties stipulate that the trial transcript in the 
King case is identical to that in the Hutchinson case.

[fol. 34]
T ranscript of S e n te n c in g  (o m itte d  in  p r in t in g )

[fol. 39] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 41]
I n t h e  C ourt of A ppea ls  of A labama

R obert J. K in g , Appellant, 
vs.

T h e  C ity  of B ir m in g h a m , Appellee.

A ssig n m e n t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this ap­
pellant, and for error, assigns each of the following sepa­
rately and severally:

1. The Court erred in overruling Appellant’s Motion to 
Strike the Complaint filed in this cause, to which ruling the 
Appellant took exceptions. (Tr. 2, 3, 8 & 16)

2. The Court erred in overruling the Appellant’s De­
murrers filed in this cause, to which the appellant took 
exceptions. (Tr. 3, 4, 8 & 16)



* J f l B l f - j q q /  9 d t l m



143

3. The Court erred in overruling the Appellant’s Motion 
to Exclude the Evidence filed in this cause, to which ruling 
Appellant took exceptions. (Tr. 5, 7, 8 & 19)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9, 10, 12 & 38)

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar AY. Adams, J. Richmond Pearson, At­
torneys for Appellant.

Certificate of Service (omitted in printing).

[fol. 42]
I n t h e  C ourt of A ppea ls  of t h e  S tate of A labama

....................... J udicial D epa rtm en t

October Term, 1960-61
6 Div. 799

R obert J. K in g ,

v.
C ity  of B ir m in g h a m .

1

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January 30, 1961 
Transcript Filed

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

cause for decision.





144

O bder of A ffir m a n c e— 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, 
on authority of Gober v. City of Birmingham, 6th Divi­
sion 797, Ala. App. Ms. It is also considered that the 
appellant pay the costs of appeal of this court and of the 
Circuit Court.

[fol. 43] Application for Rehearing and Order Overruling 
(omitted in printing).

[fol. 43a] Proceedings on Petition for Certiorari (omitted 
in printing).
[fol. 44] Petition for Certiorari (omitted in printing).

C o u n se l ’s N ote R e R ecord

The parties stipulate that the petition filed in the Ala­
bama Supreme Court in the King case is identical to that 
filed in the Hutchinson case.

[fol. 48] Order Denying Petition for Writ of Certiorari 
(omitted in printing).

[fol. 49] Application for Rehearing (omitted in printing).

[fol. 50] Order Overruling Application for Rehearing 
(omitted in printing).

[fol. 51] Clerks’ Certificates to foregoing transcript 
(omitted in printing).



■



145

[fol. 1]
l x  t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama 
I n  and for J efferson  C ounty

No. 20784

T h e  C ity  of B irm in g h a m

vs.
R obert L. P arker , J r .

Appeal Bond (omitted in printing).

[fol. 2] [File endorsement omitted]
I n t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial C ir c u it  of A labama

No. 207S4

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

R obert L. P arker , J il, Defendant.
i  .i ' -----------

C o m pla int—Filed October 10,19G0
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that Robert L. Parker, Jr., 
within twelve months before the beginning of this prosecu­
tion 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 build­
ing commonly and customarily known as J. J. Newberry 
Co., 200 North 10th Street, Birmingham, Alabama, after 
being warned not to do so, contrary to and in violation of 
Section 143G of the General City Code of Birmingham of 
1944.

Watts E. Davis, Attorney for City of Birmingham.



■



146

I n t h e  C ir c u it  C ourt of t h e  
T e n t h  J udicial C ir c u it  of A labama

No. 20784

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

vs.
R obert L. P arker .

M otion  to S t r ik e—Filed October 10,1960
Comes now Robert L. Parker, defendant in this cause, 

and moves to strike the complaint in this cause, and as 
grounds for said Motion, sets out and assigns the follow­
ing, separately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so vague 

and indefinite, as not to apprise this defendant of what he 
is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, as 
a citizen of the State of Alabama, and of the United States, 
constitutes an abridgment of the freedom of assembly, 
speech and liberties secured to the Defendant, by the Con- 
[fol. 3] stitution and laws of the State of Alabama ar.d the 
Fourteenth Amendment of the Constitution of the United 
States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, as 
applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section 824 of the General City Code of the City 
of Birmingham, as applied to this defendant, a Negro citi­
zen of the United States, constitutes a denial of due process 
and equal protection of law, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.





147

6. That the said affidavit, information or complaint, docs 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmond Pearson, Orzell Bil­
lingsley, Jr., Peter A. Hall, Attorneys for Defen­
dant.

[File endorsement omitted]

I n  t h e  C ir c u it  C ourt of t h e  
T e n t h  J udicial C ircu it  of A labama

No. 20784

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

vs.
R obert L . P arker .

D em urrers—Filed October 10, I960
Comes now Robert L. Parker, defendant in this cause, 

and demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.
[fol. 4] 3. That the allegations of the complaint and each
count thereof are so vague and indefinite as not to apprise 
this defendant of what he is called upon to defend.

4. That the ordinance, Section 1430 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this de­
fendant, is invalid in that it violates Section 4, Article 1, of 
the Constitution of Alabama, and the First and Fourteenth 
Amendments to the Constitution of the United States of 
America.



.

.



148

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this defen­
dant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech and 
assembly violative of rights and liberties secured the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen 
of the United States, in violation of the Fourteenth xYmcnd- 
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, con­
stitutes a denial of equal protection of the laws in violation 
of the Fourteenth Amendment to the Constitution of the 
United States of America.

Arthur D. Shores, Orzcll Billingsley, Jr., J. Richmond 
Pearson, Peter A. Hall, Oscar W. Adams, Jr., At­
torneys for Defendant.

[File endorsement omitted]

[fol. 5]
I n  t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial  C ircu it  of A labama

No. 20784

C ity  of B ir m in g h a m , P la in tif f ,  

versus
R obert L. P arker , Defendant.

M otion to E xclude t h e  E vidence—Filed October 10, I960
1. The complaint charging defendant, a Negro, with 

violation of 1436 of the General City Code of Birmingham



■



149

of 1944, to-wit, an alleged trespass upon land after being 
forbidden to enter or remain after told to leave is invalid 
in that the evidence establishes merely that defendant was 
peacefully upon the premises of Newberry’s, an establish­
ment performing an economic function invested with the 
public interest, as a customer, visitor, business guest or 
invitee, and there is no basis for the charge recited by the 
complaint other than an effort to exclude defendant from 
Newberry’s First P’loor Eating Facilities because of his 
race or color; defendant, at the same time is excluded from 
equal service at the preponderant number of other similar 
eating establishments in Birmingham, Alabama; thereby 
depriving him of liberty without due process of law and of 
the equal protection of the laws secured by the 14th Amend­
ment of the United States Constitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speaking 
and protesting against the practice, custom and usage of 
racial discrimination in Newberry’s, an establishment per­
forming an economic function invested with the public in­
terest; that defendant peacefully was attempting to obtain 
service in the facilities of Newberry’s in the manner of 
white persons similarly situated, ana at no time was defen­
dant defiant or in breach of the peace and was at all times 
upon an area essentially public, wherefore defendant has 
been denied rights secured by the due process and equal 
protection clauses of the 14th Amendment of the United 
States Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Bir- 
[fol. G] mingham, Alabama to permit defendant, a Negro, 
and other members of defendant’s race from enjoying the





150

access to such stores, facilities anti accommodations af­
forded members of other races; and that by this prosecu­
tion, prosecuting witnesses and arresting officers are at­
tempting to employ the aid of the Court to enforce a racialh 
discriminatory policy contrary to the due process and equal 
protection clauses of the 14th Amendment to the Constitu­
tion of the United States.

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Newberry’s, a 
store open to the public, but had not been allowed to obtain 
food service on the same basis as that offered white persons, 
because of defendant’s race or color; and, that in further­
ance of this racially discriminatory practice of Newberry’s, 
defendant was arrested on the basis of race or color, under 
color of law, to enforce racially discriminatory policy, there­
by violating defendant’s rights under the equal protection 
and due process clauses of the 14th Amendment of the 
United States Constitution.

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a 
Negro, was arrested and charged 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, in that said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise defendant 
of the validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to defendant 
as to violate his rights under the due process clause of the 
14th Amendment of the United States Constitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to be on 
property open to the public after being asked to leave,





151

because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
[fol. 7] complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: New­
berry’s and from which defendant was barred because of 
his race or color; that such denial was in accordance with 
a policy, custom and usage of Newberry’s, of operating 
such facilities and services on a racially segregated basis, 
which policy, custom and usage violates the due process and 
equal protection clauses of the 14th Amendment of the Con­
stitution of the United States.

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempting 
to use a facility, Newberry’s, open to the public, which was 
denied to him solely because of race or color; that New­
berry’s, was and is offering, for a price, to serve all mem­
bers of the public with food; that this public facility New­
berry’s, is, along with others of a similar nature, perform­
ing a necessary service for the public, which in fact, would 
have to be provided by the state if Newberry’s and other 
like facilities were all to withdraw said service; that having 
determined to offer said value service to the public, New­
berry’s is required to provide such service in the manner 
of state operated facilities of a like nature, to-wit: That 
Newberry’s may not segregate or exclude defendant on the 
ground of race or color, in violation of the due process and 
equal protection clauses of the 14th Amendment of the 
United States Constitution.

Arthur D. Shores, Oscar AV. Adams, Jr., Orzell Bill­
ingsley, Jr., Peter A. Hall, Attorneys for Defen­
dant.

[File endorsement omitted]





152

[fol. 8]
I n t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama

Appealed from Recorder’s Court
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

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

vs.
R obert L. P arker J r.

J udgm ent  E ntry—October 10,19G0
This the 10th day of October, I960, came Wm. C. AValker, 

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, and 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 duly and legally excepts; and the de­
fendant files demurrers,1 and said demurrers being con­
sidered 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 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 lltli day of October, 1900, the Court finds 
the defendant guilty as charged in the Complaint and there­
upon assessed a fine of One Hundred ($100.00) dollars and



■



153

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 
Robert L. Parker Jr., 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.
[fol. 9] 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 Robert L. Parker, 
Jr., perform additional hard labor for the City of Bir­
mingham for thirty days, as additional punishment in this 
cause.

And the costs legally taxable against the defendant in this 
cause amounting to fifty and 25/100 ($50.25) 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-six and 25/100 ($46.25) dollars taxable for 
sentence, it is ordered by the Court that said defendant 
perform additional hard labor for the County for sixty- 
two 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 authori­
ties return the defendant to the County authorities to exe­
cute 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.





154

And on this the 11th day of October, 19G0, 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 questions of 
Law were reserved by the defendant for the consideration 
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.

[fol. 10]
I n t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial, C ir c u it  of A labama

No. 20784

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

B obert L. P arker , Defendant.

M otion  for a N ew  T rial—Filed October 11,1960
Now comes the defendant, in the above styled cause and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the 11th day of October, 1960, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said motion sets out and assigns the 
following, separately and severally: 1

1. That the judgment of the Court in said case is con­
trary to the law.



'



155

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the judgment of tire Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as to 
constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The court erred in overruling defendant’s demurrers 
filed in this cause.

11. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
[fol. 11] violating the laws or ordinances of the City of 
Birmingham, Alabama, in that the laws or ordinances, under 
which this defendant was charged and convicted, and as 
applied to this defendant, constituted an abridgement of 
freedom of speech violative of rights and liberties secured 
to the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

13. That the Co"rt erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.



■



156

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
Amendment to the United States Constitution.

15. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this cause.

16. That it appeared from the evidence that no owner 
of the premises involved had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured by 
the officials of the City of Birmingham, Alabama, without 
first having a complaint from such owner, or other person 
in charge of such premises.

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against the defendant for trespass on pri­
vate property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bill- 
[fol. 12] ingsley, Jr., J. Richmond Pearson, Peter 
A. Hall, Attorneys for Defendant.

O rder O verruling

The foregoing Motion being presented in open Court, 
this the 11th day of October, 1960; the same being con­
sidered and understood, the Court is of the opinion that the 
same should be overruled.





157

It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge. 

[File endorsement omitted]

Appeal Bond to Court of Appeals (omitted in printing), 

[fol. 14]
I n t h e  C ir c u it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama

I n and for J efferson  C ounty

No. 20784

T h e  C ity  of B ir m in g h a m , a Municipal Corporation,
versus

K obert L. P arker , J r.

Birmingham, Alabama 

Transcript of Evidence—October 10, 1960

B e fo r e : Honorable George L. Bailes, Judge.

A ppea ra n ces :

Mr. Watts E. Davis, for the City.
Messrs. A. D. Shores, Orzell Billingsley, Jr., Peter A. 

Hall, Oscar W. Adams, Jr., J. Richmond Pearson, for the 
Defendant.

[fol. 16] Proceedings
Mr. Billingsley: Your Honor, we file the same motion 

to strike for the defendants and demurrer with the stipula-





158

tion we will have the same ruling as in the first cases and 
an exception.

The Court: Yes, that will take care of it.
Mr. Davis: Mr. Myers.

B. R. M y e r s , c a l le d  a s  a  w it n e s s ,  h a v in g  b een  f ir s t  d u ly  
s w o r n , t e s t i f ie d  a s  f o l l o w s :

Direct examination.

By Mr. Davis:
Q. Will you please state your full name?
A. B. R. Myers.
Q. By whom are you employed, Mr. Myers?
A. The City of Birmingham.
Q. Are you a Police Officer?
A. Yes, sir.
Q. And were you a police officer on March 31, 1960?
A. Yes, sir.
Q. At or about 10:30 on the morning of March 31, did 

you have occasion to go to Newberry’s Store?
A. I did.
Q. Is that in the City of Birmingham?
A. Yes, sir.
Q. Second Avenue and 19tli Street, is that correct?
A. Yes, sir.
Q. What part of the store did you go to, Mr. Myers?
A. First floor. ,
Q. Did you visit the eating area?
A. Yes, sir.
Q. Did you find anything out of the ordinary there at 

the time?
[fol. 17] A. Two colored males were sitting at the lunch 
counter.

Q. Do you recall who those two males were?
A. William West and Robert Parker.
Q. Do you see them here in the Courtroom?
A. Yes, sir.
Q. Would you point to them, please, sir?



.



159

A. William West with the green coat and Parker in the 
dark coat, behind the attorneys.

Q. Those are the two boys sitting between counsel at 
the counsel table!

A. Yes, sir.
Q. Did you have any conversation with either of these 

two defendants on that occasion!
A. No conversation, no, sir.
Q. Did they have any conversation with anyone em­

ployed by Newberry’s Store in your presence there on that 
occasion!

A. Not in my presence, no, sir.
Q. Did you place them under arrest!
A. I did.
Q. AVere they told what they were arrested for!
A. They were.
Mr. Davis: That is all.

Cross examination.

By Mr. Hall:
Q. AVhat caused you to go to Loveman’s on the morning 

of 31st of March!
A. It was not Loveman’s, Newberry’s.
Q. I am sorry.
A. I received a call on the radio.
Q. That came from headquarters!
A. Yes, sir.
Q. AA'hen you got to the store you proceeded immediately 

to the eating counter!
A. Through the front door. The lunch counter is right at 

[fol. 18] the front door.
Q. Did you consult with any of the store officials at all!
A. I did not personally.
Q. Did you have occasion to talk with any of the store 

officials there at Newberry’s!
A. I did not.
Mr. Davis: I didn’t hear you.
The AATtness: I did not.





160

Q. What occasioned the arrest of these two boys Parker 
and West, why did you arrest them ?

A. Trespassing after warning.
Q. Why did you do it? Did you decide they were tres­

passing after warning?
A. I did not.
Q. Who did?
A. It was my understanding my partner had received a 

complaint from Mr. Stallings.
Q. I want to know who you received one from?
A. I didn’t receive one personally.
Q. What occasioned the arrest? You did place them 

under arrest, didn’t you at that time?
A. Yes.
Q. Why?
A. Because they had been warned to leave the lunch 

counter.
Q. How do you know7?
Mr. Davis: We object to that, if the Court pleases, to 

arguing with the witness. He has already answered.
Mr. Hall: If Your Honor pleases, wre are not arguing. 

W e are trying to get a material aspect of the case. I under­
stand that somebody who owned some property claims this 
defendant refused to leave after they were warned to do 
so and an official of the City of Birmingham then arrested 
them and they are being tried. The officer has stated nobody 
complained to him. I w7ant to know7 who did complain and 
where ?
[fol. 19] Mr. Davis: I believe the record did show he 
received a report by radio to go to Newberry’s to make an 
arrest.

Mr. Hall: If Your Honor pleases counsel is testifying. 
The officer didn’t testify to that. He said he got an order 
on the radio to go down to Newberry's. Now if he did get 
a complaint by radio w7e would like for him to say so on 
the stand. We want to know why he arrested the two boys 
at the time that he did.

The Court: I don’t think you can properly go into mental 
processes, but you can ask him what he said and what was 
said to him.





161

Q. Xo official at Newberry’s Store—
The Court: I don’t know that.
Mr. Hall: If Your Honor pleases, that was addressed 

to the witness.
Q. Officer Myers, did I understand you to say that no 

official at Newberry’s complained to you?
A. I did not receive the complaint personally.
Q. But you were the arresting officer?
A. One of the arresting officers.
Q. Did you know of any complaint at that time?
A. I did.
Q. You did?
A. Yes.
Q. How did you know that ?
A. Officer Stoddard had received a complaint.
Q. From whom?
A. Mr. Stallings.
Q. Who is' Stallings?
A. At Newberry’s Department Store.
Q. I beg your pardon?
A. At Newberry’s Department Store.
Q. Is he the Manager there?
A. I don’t know what his capacity is.
Q. You don’t know he is employed there?

[fol. 20] A. It was my understanding that he was.
Q. You don’t know whether he is employed or not?
A. I don’t know.
Mr. Hall: That is all.
Mr. Davis: Mrs. Gibbs.
Mr. Shores: Your Honor, I believe we asked for the 

rule when we started?
Mr. Davis: That was in another case.
Mr. Shores: We would like to have it.
The Court: You may invoke the rule.
(Witnesses placed under the rule.)
Mr. Hall: If Your Honor please, may we at this time 

ask for the rule in all of the cases? We were under the 
impression that the rule had been invoked in all of the 
cases.

The Court: All right.





162

Mrs. L. B. G ibbs, called as a witness, having been first 
duly sworn, testified as follows:

Direct examination.

By Mr. Davis:
Q. Will you please state your full name!
A. Mrs. L. B. Gibbs.
Q. By whom are you employed or by whom wrere you 

employed on March 31, 1960?
A. J. J. Newberry Company.
Q. Are you still employed there?
A. Yes, I am.
Q. Do you recall the occasion about the middle of the 

morning on March 31, some disturbance or commotion 
there at the store?

A. Yes, sir.
Q. Did two colored boys come in and have a seat at the 

luncheonette or dining area in the store?
A. Yes, they did.

[fol. 21] Q. What is your position with the store, Mrs. 
Gibbs?

A. I am a Store Detective.
Q. Who were the two boys, if you remember on that 

occasion?
A. William West and Robert Parker.
Q. Do you see them in the Courtroom?
A. Yes, sir.
Q. Can you point them out?
A. I think that is West with the green jacket or green 

coat and Parker in the dark coat I believe.
Q. Those are the two boys sitting behind their attorneys?
A. Yes, sir.
Q. What conversation, if any, did you have v îth the two 

defendants on that occasion?
A. I wTent over to the lunch counter when I saw them 

sitting there and identified myself and told them that they 
wTould have to leave, they couldn’t be served there, but if 
they would go to the fourth floor we have a snack bar for 
colored there and they would be served on the fourth floor.



'



163

Q. What did they say, if anything!
A. They said they were not leaving, that they were not 

violating any law.
Mr. Davis: I believe that is all.

Cross examination.

By Mr. Hall:
Q. Mrs. Gibbs, are you still employed by Newberry’s!
A. I am.
Q. The lunch counter, were they seated at the time you 

saw them?
A. The luncheonette on the first floor.
Q. Is that lunch counter open to Newberry’s customers?
A. It is open to white customers.
Q. Only to white customers?
A. That is right.

[fol. 22] Q. You have another lunch counter on the prem­
ises?

A. We have another luncheonette in the basement of the 
store and then we have this for colored people on the 
fourth floor.

Q. A luncheonette in the basement of the store. Is that 
open to Newberry’s customers also?

A. White customers.
Q. AYhite customers only?
A. Yes, sir.
Q. That is the only requirement that they be white?
A. Yes.
Q. And the fourth floor, you have another luncheonette 

which is open to Newberry’s customers if they are colored?
A. Yes, sir.
Q. Do you serve only colored people at that luncheonette 

or do you serve all?
A. Only colored.
Q. That is true today?
A. Yes.
Mr. Hall: That is all.
Mr. Davis: Mr. Stallings.



■



164

L loyd L . S t a l l in g s , c a l le d  a s  a  w it n e s s ,  h a v in g  b e e n  f ir s t  
d u ly  s w o r n , t e s t i f ie d  a s  f o l lo w s :

Direct examination.

By Mr. Davis:
Q. Will you state your full name, please, sir!
A. Lloyd L. Stallings.
Q. By whom are you employed, Mr. Stallings?
A. J. J. Newberry Company.
Q. In what capacity?
A. Assistant Store Manager.
Q. Were you so employed on March 31, 1960?
A. I was, yes, sir.
Q. About the middle of the morning did you have oc- 

[fol. 23] casion to visit the area of the luncheonette or 
soda fountain on the first floor of Newberry’s?

A. I did.
Q. Was there anything unusual there at the time, sir?
A. There was two, well I was called down there, someone 

called me from the office and said there was a lot of con­
fusion at the lunch counter, would I come down. And so 
I came down and two colored men were sitting there.

Q. Did you have any conversation with them relative to 
it?

A. Well I asked them, I said, “You know you can’t do 
this.” I said, “We have a lunch counter up on the fourth 
floor for colored people only. We would appreciate it. if 
you would go up there.”

Q. What was their response to that, Mr. Stallings?
A. Well one of them, I don’t know which one said, “Well 

we have our rights.”
Q. Did they indicate they were not going to leave?
A. I saw they were not going to leave. AVell they didn’t 

say they were not going to leave, but they kept sitting there 
and said, “We have our rights.” That was the answer that 
they gave.

Mr. Davis: That is all.



<



165

Cross examination.

By Mr. Hall:
Q. Mr. Stallings, did you call the police?
A. I did not.
Q. Did any other official at Newberry’s call the police?
A. Someone, now I don’t remember who this person was, 

but someone said to me that we called the police. I don t 
know who it was. I don’t remember that.

Q. You were there when the police came in, were you 
not?

A. Yes, I was.
Q. Did you make a complaint to the police?
A. I didn’t, no.
Q. Did anyone make a complaint in your presence for 

Newberry’s ?
A. I don’t remember if they did, no, sir.
Q. Are you still employed by Newberry’s?

[fol. 24] A. I am.
Q. Subsequent to that time prior to the first trial in 

City Court did you make a complaint to the City of Bir­
mingham against these two defendants?

A. I didn’t no. ‘
Q. Do you know that anyone representing J. J. New­

berry’s has!
A. I don’t know whether they have or not.
Q. Mr. Stallings, is Newberry a National chain organi­

zation?
A. Yes, it is.

Davis: TVe object to that if the c-ourt pleases.
The Court: That is all right. Leave it in.
Q. Is it engaged in selling merchandise both hard goods 

and soft and otherwise to the public generally?
A. Yes sir.
Q. Do you customarily take full-page advertising in local 

newspapers and other advertising media?
A. I don’t understand the question.
Q. Do you usually or ordinarily advertise your mer­

chandise for sale in newspapers to the public generally?



.



166

A. Yes, sir.
Q. On those occasions do you also advertise your lunch­

room?
A. No, generally we don’t.
Q. Have you ever advertised your lunch counter?
A. Maybe we have at some time or another. I don’t 

know. But we don’t make a practice. I don’t remember a 
specific time of doing that.

Q. Do you have signs at your lunch counter advertising 
specials and prices?

A. Yes, w'e do.
Q. Is there any sign at your lunch counter which indi­

cates wThetlier or not it is for white or colored?
A. I don’t believe there is a sign that says for white 

only. We have one at the colored luncheonette that says 
for colored only.

Q. Where is that?
[fol. 25] A. On the fourth floor.

Q. On the fourth floor?
A. Yes.
Q. And this occurred on the first floor?
A. That is right.
Q. Are there other departments on the first floor besides 

the luncheonette?
A. Oh, yes.
Q. Merchandise generally?
A. Yes.
Q. And white and colored persons generally shop on the 

first floor?
A. Yes.
Q. That is done ordinarily, is that true?
A. Yes.
Q. On the part of the buying public?
A. Yes.
Q. Have you worked at Newberry’s Store at any other 

place other than Birmingham?
A. I have not.
Q. Have you visited any other J. J. Newberry Stores?
A. Oh, a time or two I have, yes, sir.
Q. Does Newberry have a policy of serving and not serv­

ing persons of another race or particular color?



.



167

A. 1 don’t have anything to do with thejnaking of the 
policies of Xewberry Company.

Mr. Davis: We object as incompetent, irrelevant and 
immaterial as to what policy they may have in other parts 
of the country.

Mr. Hall: If Your Honor pleases, I think it is very 
material. The meat in this coconut is whether or not New­
berry’s Department Store has complained or the City of 
Birmingham. It is our theory of the case it is necessary 
for the owner of the premises to be complaining and we 
are trying to find out if they have complained. Mr. Stallings 
who is Assistant Manager says he has not complained, 
[fol. 26] Mrs. Gibbs didn’t testify to any complaint. The 
only person the officer knows of no complaint except he 
thinks some other officer might have had one by radio. Now 
we want to know who is prosecuting these defendants. If 
it is Newberry’s policy to serve persons at different coun­
ters we would like to know if, I think it is material.

The Court: Can we adjudicate cases here on persons or 
corporations’ policies?

Mr. Hall: Well I don’t know sir.
The Court: I do. We can’t. I pointed that out this 

morning. We are not dealing with policies of stores. We 
are dealing with a City Code.

Mr. Hall: If Your Honor pleases, as we understand the 
ordinance involved, in order for it to be brought to bear 
on a defendant our theory was it would be necessary for 
some private persons to bring in the City Police ordinarily 
under the circumstances. It is not one of those ordinances 
which is against the peace and dignity of the State.

The Court: What would we do with Mrs. Gibbs’ testi­
mony?

Mr. Hall: I don’t know, sir. Mrs. Gibbs testified she 
told them they couldn’t be served there, but that does not 
necessarily mean they were told to leave.

The Court: I think she was very smart because when 
they said they were not leaving she didn’t tell them to leave.

Mr. Hall: I don’t recall that, but I was trying to get 
into what the situation is. As I understand the particular 
ordinance, it is possible I am misinformed and don’t know





168

what it means, but as I understand it, if a person is on 
my premises ordinarily a policeman cannot decide whether 
or not they should be arrested unless I make a complaint. 
Now if they come on at my invitation and I tell them to 
leave and they don’t and I summon the police I should 
come to Court and say I did, that I invited them and then 
I withdrew my invitation. Mr. Stallings has testified to 
newspaper advertisements inviting the general public to 
Newberry’s Store and there is no basis of color in the ad­
vertisements. Now colored and white people shop in New­
berry’s, in the various departments as he testified to and 
[fol. 27] there is no racial discrimination, racial designa­
tion on the first floor. We are trying to find at what point 
the invitation was withdrawn, on whose complaints were 
these men arrested and whose prosecution they are being 
prosecuted. Now if we are proceeding under the Trespass 
Ordinance, that is the way we understand it. If it is one 
of the ordinances where the policeman himself can decide 
that is a different matter.

The Court: Is there any question before the Court now?
Mr. Hall: If Your Honor pleases we had asked Mr. 

Stallings about Newberry’s policy.
The Court: That is not competent.
Mr. H all: We want an exception. That is all Your Honor.
The Court: Anything further?

Redirect examination.

By Mr. Davis:
Q. They didn’t turn out any lights on this occasion, did 

they Mr. Stallings?
A. I don’t remember that we did, no.
Q. They asked you about advertising. They didn’t ad­

vertise that the white and colored sat at the same tables 
and counters in their advertising when they did advertise 
their luncheonettes did they? Would you answer that for 
the record, please, sir!

A. No, we did not.
Mr. Davis: That is all.





169

Uncross examination.

By Mr. Hall:
Q. Mr. Stallings, you didn’t advertise that white and 

colored are served at the name notions counter, did you!
A. No.
Q. But you did servo them nt the same counter?
A. We did.
Q. You have been doing it since you have been at New­

berry’s?
A. Yes, sir.
Q. You do it today?
A. Yes, sir.

[fol. 28] Q. No Negro has been arrested for buying at a 
notion counter alongside a white person, have they?

A. Not that I know of.
Mr. Hall: That is all.
Mr. Davis: That is our case.
Mr. Adams: Judge, we would like to make a motion to 

exclude in the case of Robert Parker, a written motion 
in his particular case, and oral motion being the same as 
a written motion in the case of Robert Parker in the case 
of William West, and the basis of our motion being the 
same as previous, and also in this particular case the fact 
that there was invitation to the public generally to trade 
at Newberry’s, that the eating facilities that the defen­
dants were sitting in had no signs indicating that there 
was any segregation of the races, and furthermore, in 
addition to that, there is no proof coming from anybody 
in any official capacity at Newberry’s that they were warned 
to leave and that they would be guilty of a crime if they 
stayed. There is no evidence in the record to the effect 
that the warning was given. I think the Judge observed 
after they said they were going to stay that Mrs. Gibbs tact­
fully did not state for them to go after they said they were 
going to stay, so I do not believe that the establishment has 
been made. There was some vague reference to what Mr. 
Stallings would testify to but when he got on the witness 
stand he didn’t testify. He didn’t call for the police officer to 
arrest the people. S*o the case falls down on just the lack 
of proof of violation of the ordinance as well as falling





170

down on the Constitutional grounds also. So therefore in 
these two defendants’ cases the City hasn’t made out a 
case and they should he discharged obviously.

The Court: Same ruling as in the other cases.
Mr. Adams: We except.

W il l ia m  W est, called as a w itness, having been first duly 
sworn, testified as follow s:

[fol. 29] Direct examination.

By Mr. Shores:
Q. Will you state your full name?
A. My name is William West.
Q. William did you accompany Parker to Newberry’s on 

this date of March 31?
A. No, sir.
Q. Did you happen to go to Newberry’s on that particular 

date?
A. I did.
Q. Who did you meet after you got there?
A. I met Parker, Robert Parker.
Q. Robert Parker. You met Robert Parker there?
A. Yes, sir.
Q. Did you make any purchases while you were at New­

berry’s?
A. I did.
Q. What did you purchase?
A. I bought some paper and some small comic books.
Q. Small comic books?
A. The novel type is what I mean.
Q. After you made the purchases what did you do?
A. Well by that time Parker and I was walking around 

in the store and I said, “Let’s go over here and get some­
thing to eat.”

Q. Did Parker buy anything?
A. I don’t know. I saw him with a package. I don’t 

know what was in it.
Q. In other words, you met him there in the store?
A. In the store.





171

Q. You didn’t go together!
A. No, sir.
Q. You didn’t go shopping together!
A. No, sir.
Q. He was in the store when you first met him!
A. When I met him he was.
Q. You invited him to go with you to get something to 

eat!
A. To get something to eat, yes, sir.
Q. Where did you go?

[fol. 30] A. We went to the lunch counter.
Q. Did this lunch counter have any designation as to 

race!
A. Well I didn’t see any sign or anything that would 

indicate it.
Q. Was anybody else sitting at the lunch counter!
A. Yes, sir, there was several white people, ladies and 

gentlemen that were sitting there.
Q. Y’ou and AYest, I mean Parker are Negroes!
A. That is right.
Q. AA'ere the white people eating!
A. They were. Some of them were drinking coffee.
Q. Did you order anything while you were sitting there!
A. No, sir. The waitress never did come and see what 

we wanted.
Q. Did anybody ever come and invite you to leave!
A. No, sir.
Q. Did anybody ever tell you to leave!
A. No, sir.
Q. Did any person in connection with the store tell you 

that you could be served elsewhere in the store!
A. Yes, sir.
Q. Do you recall just what conversation took place at 

that time?
A. No, not exactly, but a lady came up to us and said, 

“A\~e have a lunch counter for colored people in some other 
department of the store.”

Q. But did she tell you to leave that lunch counter?
A. No, sir, she didn’t or I don’t recall it.
Mr. Davis: I didn’t hear you.
A. I said she didn’t or I don’t recall it.





172

Q. Do you recall whether or not the white people ordered 
anything and were served while you were sitting there!

A. Well I don’t recall but I do remember some of them 
were eating and drinking.

Q. Eating and drinking?
[fol. 31] A. Yes, sir.

Q. Did you see the waitress waiting on anybody?
A. No, i  didn’t.
Q. When did you first notice or were first approached 

by a police officer?
A. Well it was after the lady had talked to us and an­

other gentleman. After he finished talking to us we prob­
ably stayed there about well, three or four minutes and I 
happened to look around and saw some officers coming.

Q. Did the officers make any statements to you when they 
first approached you?

A. No, sir.
Q. Did they arrest you?
A. Well after they had gotten the people up they did.
Q. He ordered the other people up?
A. He was doing his hand that way. I assumed he was 

doing it for them to get up.
Q. He was making motions towards the white people?
A. That is right. He did like that.
Q. Did he motion you up?
A. No.
Q. After he had motioned the white people away did all 

of them leave?
A. No, all of them didn’t leave.
Q. Now what did the officer say to you, if anything?
A. After he started motioning the white people away we 

started to get up and when we started to get up one got me 
in the back or somewhere in behind.

Q. Before the officer caught you in the back had any 
official or any officer in the store ordered you to leave that 
counter?

A. Not to leave.
Q. After the officer motioned the other people to leave 

you attempted to leave?
A. After I saw him motioning other people up I said, 

[fol. 32] “Let’s go.” And we started to get up.





173

Q. And when you attempted to get up that is the time 
that the officer caught you?

A. Yes, sir.
Q. Caught you in your pants?
A. Somewhere behind. I don't know exactly.
Q. Did he make anv statement when he caught vou?
A. No.
Q. Did he say you were under arrest?
A. Well, yes.
Q. When did he tell you you were under arrest?
A. After we had gotten outside of the store.
Q. Did he tell you what you were being arrested for?
A. If he did I didn’t hear it.
Mr. Shores: That is all.

Cross examination.

By Mr. Davis:
Q. You expected to be arrested when you went there, 

didn’t you Parker?
A. I am not Parker.
Q. Pardon, West.
A. No, I didn’t. 1 expected to get served because they 

had served at some counters.
Q. That was not what they told you at the meeting the 

day before.
Mr. H all: If Your Honor pleases, we object to any refer­

ence to any meeting.
The Court: Leave it out.
Q. I believe you say you just happened to meet Parker 

down there?
A. That is right.
Q. Parker didn’t know you were coming and you didn’t 

know Parker was coming?
A. I didn’t.

[fol. 33] Q. I beg your pardon?
A. I didn’t know it.
Q. What time were you supposed to meet there?
A. I didn’t know whether Parker would be there or not.





174

Q. You all talked about it the day before, didn’t you?
A. Talked about what?
Q. About the thing you were going to do at Newberry’s, 

is that right?
Mr. Hall: .We object to that, Your Honor.
The Court: I think in the light of his statement it would 

be competent to ask him if they had said anything about it 
the day before.

Q. You were at Reverend Shuttlesworth's house the day 
before?

Mr. Hall: We object to whether he was at Reverend 
Shuttlesworth’s house or at any other place the day before.

The Court: Let him answer whether he was there at 
Shuttlesworth’s the day before.

Mr. Hall: If Your Honor pleases, we want an exception 
to the ruling. Our objection is predicated on the fact that 
the question is incompetent and irrelevant.

The Court: Let the ruling stand.
Q. The day before you were arrested were you at Shut­

tlesworth’s house?
A. Well I have been to Reverend Shuttlesworth’s church 

several times.
Q. Did I ask you that. Did I ask you how many times 

you had been there ?
A. Been where?
Mr. Davis: Would it be asking the Court too much to 

ask the witness to answer the question.
The Court: Reshape it.
Mr. Davis: I beg your pardon?
The Court: Recast the question.

[fol. 34] Q. Were you at Reverend Shuttlesworth’s house 
on March 30, 19G0?

A. March 30, 19G0?
Q. The day before this incident?
A. No, I was not there the day before.
Q. Do you understand we have got a perjury law here?
Mr. Billingsley: Your Honor, we are going to object 

to that.





175

Q. I have some statements and I am going to ask him 
if he was not at Reverend Shuttlesworth’s house the day 
before. Is that your statement. You were not at this house 
on March 30, 1960?

A. In the daytime?
Q. In the daytime or nighttime!
A. I was there that night.
Q. There is 24-hours in the day.
A. I was there that night.
Mr. Hall: If Your Honor pleases, we are going to ob­

ject to the way counsel is carrying on his cross-examination 
as argumentative and it is intimidating the witness.

The Court: The Court thinks this lad has been intimi­
dated elsewhere, and made a tool elsewhere, made a dupe of 
elsewhere under this evidence.

Q. Was it not prearranged at Shuttlesworth’s house on 
March 30, I960 that you were to meet Parker at Newberry’s 
Store at a given time on March 31, 19G0?

Mr. Hall: If Your Honor pleases, we would like to 
object for the record.

The Court: Let him answer it. Overruled.
Mr. Hall: We except.
The Witness: Repeat the question.
The Court: Read the question.
(Question read as follows: Was it not prearranged at 

Shuttlesworth’s house on March 30, 19G0 that you were to 
meet Parker at Newberry’s Store at a given time on 
[fol.35] March 31, I960?)*

A. Well, I don’t recall any such.
Q. Whereabouts in the store did you run into Parker, 

West?
A. I believe it was, I believe it was on the first floor. I 

am not sure.
Q. Somebody wrote on a piece of paper the name of 

every store you boys were to go to. Is that not correct? 
At tliis meeting you attended?

Mr. Hall: We object to that on the same grounds.





176

A. Well, I didn’t see any paper.
Q. I didn’t ask you if you saw it. I said somebody wrote 

on a piece of paper where each one of you were to go, isn’t 
that correct?

A. I didn’t see that there.
Q. Did you tell Detective Pierce that you did?
A. Tell him that somebody wrote on a piece of paper?
Mr. Hall: We object to that. Proper predicate has not 

been laid.
The Court: That is a predicate itself.
Mr. Hall: We object to the question, we take an excep­

tion.
The Court: Will you answer the question.
A. I don’t remember telling him.
Q. Do you remember talking to Detective Pierce the day 

after the sit-ins?
A. Yes, sir.
Q. After you had been in jail?
A. I do.
Mr. Davis: That is all.
Mr. Shores: That is all, come down. We rest, Your 

Honor.
Mr. Davis: That is all for the City.

[fol. 36] Transcript of Sentencing (omitted in printing).

[fol. 41] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).





177

[fol. 43]
I n t h e  C ourt of A ppeals  of A labama 

No________

R obert L. P arker, J r., Appellant, 
vs.

T h e  C ity of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns each of the following, separately 
and severally: ,

1. The Court erred in over-ruling Appellant’s Motion 
to Strike the Complaint filed in this cause, to which ruling 
the Appellant took exceptions. (Tr. 2, 3, 8 & 1G).

2. The Court erred in over-ruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took 
exceptions. (Tr. 3, 4, 8 & 16).

3. The Court erred in over-ruling the Appellant’s Motion 
to Exclude the Evidence filed in this cause, to which ruling 
the Appellant took exceptions. (Tr. 5, 7 & 28).

4. The Court erred in over-ruling Appellant’s Motion 
for a New Trial. (Tr. 9, 10, 12 & 40).

5. The Court erred in refusing to permit the witness, 
Lloyd L. Stalling, Assistant store manager of J. J. New­
berry Company, to testify as to the racial policies of afore­
said company, in service for persons of different races, to 
which ruling Appellant took exceptions. (Tr. 23-27).

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

[fol. 44] Certificate of Service (omitted in printing).





178

[fol. 45]
I n t h e  C ourt of A ppeals of t h e  S tate of A labama

..................J udicial D epartm ent

October Term, 1960-61
6 Div. 800

R obert L. P arker, J r.

v.
C ity  of B irm in g h a m .

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate Filed

January 30, 1961 
Transcript Filed

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

cause for decision.

Order of A ffirm a n ce—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, 
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.
[fol. 46] Application for Rehearing and Order Overruling 
(omitted in printing).
[fol. 46a] Proceedings on Petition for Certiorari (omitted 
in printing).





179

[fol. 47]
I n t h e  S u pr em e  C ourt of A labama

No. 756 Sixth Division
E x P a r t e : R obert L. P arker, J r.

R obert L. P arker, J r., Appellant, 
vs.

C ity  of B ir m in g h a m , Appellee.

P etitio n  for C ertiorari—Filed July 3, 1961
To the H onorab le  Ch ief  J u s t ic e  and  A s s o c ia t e  Jus t ic e s  of  

the  S u p r e m e  C o u r t  o f  A la b a m a

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr. and J. Richmond Pearson and re­
spectfully petitions this Honorable Court to review, revise 
and reverse and hold for naught that certain judgment of 
the Court of Appeals, on to-wit: May 30, 1961, wherein 
Petitioner was Appellant and the City of Birmingham was 
Appellee, which Judgment affirms the Judgment of the Cir­
cuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a rehearing of said cause and Brief in sup­
port thereof were duly filed by your petitioner within the 
time required by law, and that said application for rehear­
ing was overruled by said Court of Appeals on the 20th 
day of June, 1961.

3. Your petitioner respectfully shows unto the Court 
that this cause arose from a complaint filed by the City 
of Birmingham, charging your petitioner with violating 
Section 1436 of the General City Code of Birmingham, viz:

“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





180

as provided in Section 4, provided that this Section 
shall not apply to police officers in discharge of official 
duties.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the Com­
plaint was so vague and indefinite as not to apprise the 
Appellant of what he was called upon to defend, and fur­
ther, that the ordinance which formed the basis of the 
prosecution, as applied to Appellant, constituted an 
[fol. 48] abridgement of the privileges and immunities 
guaranteed by the Constitution of the United States and 
that the ordinance was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the De­
murrers whereupon petitioner was tried without a jury, and 
was found guilty of Trespass after Warning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced 
to a term of Thirty (30) days of hard labor for the City 
of Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence at the close of the city’s case, which Motion was 
denied. After Judgment and sentence, petitioner filed a 
Motion for a New Trial, which Motion was denied, and 
petitioner perfected his appeal.

7. Your petitioner further shows unto your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause, upon the opinion judg­
ment rendered in the case of James Gober vs. City of 
Birmingham, Sixth Division 797, decided May 30, 1961, 
which case had a different factual situation from peti­
tioner’s case; and there was a different proposition of law 
involved in petitioner’s case, not involved in case of Gober 
vs. City of Birmingham.

8. That the Proposition of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:



.



181

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in vio­
lation of the Fourteenth Amendment to the United States 
Constitution.

B. That the Ordinance and Complaint, the basis of the 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of the 
equal protection of the Law. all in violation ot the Four­
teenth Amendment to the United States Constitution.

C. That to warrant a conviction, the evidence must iden­
tify the accused, as the person who committed the crime.

The Court of Appeals erred in failing to rule that the 
conviction of petitioner was a violation of due process of 
law, an abridgement of the priviliges (sic) and immunities, 
equal protection of the law, and a violation of the Four­
teenth Amendment to the Constitution of the United States.

The Court of Appeals erred in failing to rule that to 
warrant a conviction, the evidence must identify the accused 
as the person who committed the crime.

Wherefore, Your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the Seal of 
this Court directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete Transcript of Record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that 
[fol. 49] this cause may be reviewed and determined by 
this Honorable Court, as provided by law and the rules 
and practice of this Court, and that this Court thereupon 
proceed to review and correct the errors complained of 
and to reverse the Judgment of the Court of Appeals or 
Judgment as should have been rendered by the Court of 
Appeals.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi-



'



182

cate of Affirmance of said cause, during the pendency of 
this petition.

And petitioner prays for sucli other, further and addi­
tional relief in the premises, as to this Court may seem 
appropriate, and to which he may be entitled, and your 
petitioner will ever pray.

Respectfully submitted.
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar W. Adams, J. Richmond Pearson, By 
J. Richmond Pearson, Attorneys for Appellant.

D u ly  s w o r n  to b y  J .  Rich mon d P earson ,  ju r a t  om it te d  in 
prin t ing.

Certificate of Service (omitted in printing).
[fol. 50] Order Denying Petition for Writ of Certiorari 
(omitted in printing).
[fol. 51] Application for Rehearing (omitted in printing).
[fol. 52] Order Overruling x\pplication for Rehearsing 
(omitted in printing).
[fol. 53] Clerks’ Certificates to foregoing transcript (omit­
ted in printing).





183

[fol. 1]
I n t h e  C ircu it  Court of t h e  T e n t h  J udicial C ircuit 

of A labama in  and for J efferson  County

No. 20791

T h e  C ity  of B ir m in g h a m ,

vs.

W illia m  W est.

A ppea l  B ond (o m itte d  in  p r in t in g ) .

[fo l. 2]
In t h e  C ir c u it  C ourt of t h e  T e n t h  J udicial C ircuit 

o f  A labama

No. 20791

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
i

vs.

W illiam  W est, Defendant.

C o m pla in t— Filed October 10, 1960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that William West, 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 J. J. Newberry Co., 200 North 
19th Street, 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.

Watts E. Davis, Attorney for City of Birmingham.
[File endorsement omitted]





184

I n  t h e  C ir c u it  C ourt of t h e  T e n t h  J udicial C ircuit  
of A labama

No. 20791

C ity  of B irm in g h a m , 

vs.
W illiam  W est .

M otion to S trik e— Filed October 10, 1960
Comes now William West, defendant in this cause, and 

moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sepa­
rately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so 

vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, as 
a citizen of the State of Alabama, and of the United States, 
constitutes an abridgment of the freedom of assembly, 
[fol. 3] speech and liberties secured to the Defendant, by 
the Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, as 
applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.



.



185

5. That Section 824 of the General City Code of the 
City of Birmingham, as applied to this defendant, a Negro 
citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this Court.

Arthur D. Shores, J. Richmond Pearson, Orze'll 
Billingsley, Jr., Peter A. Hall, Attorneys for De­
fendant.

[File endorsement omitted]

I n  t h e  C ircu it  C ourt of t h e  
T e n t h  J udicial C ircu it  of A labama

No. 20791

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

vs.
W illiam  W e st .

D em urrers—Filed October 10,19G0
Comes now William West, defendant in this cause, and 

demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.
[fol. 4] 2. That the complaint, affidavit or information
upon which this cause is based is insufficient to support



.



186

prosecution of this cause, in that no offense is charged 
which is cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this 
defendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United 
States of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this 
defendant, a citizen of the State of Alabama and of the 
United States, constitutes an abridgment of freedom of 
speech and assembly violative of rights and liberties 
secured the defendant by the First and Fourteenth Amend­
ments to the Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, 
constitutes a denial of equal protection of the laws in 
violation of the Fourteenth Amendment to the Constitu­
tion of the United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]





187

[fol. 5]
In t h e  C ircu it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama

Appealed from Recorder’s Court
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

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

vs.

W illiam  W est.

J udgm en t  E ntry— October 10, I960
This the 10th day of October, 1900, came Win. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 

I 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 overruling 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 makes oral 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; and on this the 11th day of 
October, 19C0, the Court finds the defendant guilty as 
charged in the Complaint and thereupon assessed a fine





1 8 8

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 hav­
ing 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 suffi­
cient 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 William West, 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.
[fol. 6] 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 William West, 
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 fifty-two and 10/100 ($52.10) dol­
lars, 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 10/100 ($48.10) dollars tax­
able for sentence, it is ordered by the Court that said de­
fendant perform additional hard labor for the County for 
sixty-four days, at the rate of 75  ̂per day to pay said costs. 
It is therefore 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, 1900, the defendant 
files motion for a new trial in this cause, and said motion





189

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 
consideration 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.

[fol. 7]
I n  t h e  C ir c u it  C ourt of t h e  T e n t h  J udicial C ircuit 

of A labama

No. 20791

C it y u f  B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

W illiam  W est , Defendant.

M otion for a N ew  T rial— Filed October 11, 1960
Now conies the defendant, in the above styled cause 

and with leave of the Court, first had and obtained, and 
moves this Honorable Court to set aside the verdict and 
judgment rendered on to-wit, the lltli day of October, 
I960, and that this Honorable Court will grant the defen­
dant a new trial, and as grounds for said motion sets out 
and assigns the following, separately and severally:

1. That the judgment of the Court in said case is con­
trary to the law.

2. For that the judgment of the Court is contrary to 
the facts.



■

.



190

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The Court erred in overruling defendant’s demur­
rers filed in this cause.
, 11. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances, under which 
this defendant was charged and convicted, and as applied 
[fol. 8] to this defendant, constituted an abridgement of 
freedom of speech violative of rights and liberties secured 
to the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

13. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.





191

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

15. The Court erred in overruling defendant’s Motion to 
exclude the evidence in this cause.

16. That it appeared from the evidence that no owner of 
the premises involved had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, with­
out first having a complaint from such owner, or other 
person in charge of such premises.

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against the defendant for trespass on private 
property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bil­
lingsley, Jr., J. Richmond Pearson, Peter A. Hall, 
Attorneys for Defendant.

[fol. 9]
Order O verruling

The foregoing Motion being presented in open Court, 
this the 11th day of October, I960; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.





192

It is therefore, Ordered, Adjudged and Decreed that 
the said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge.
A ppea l  B ond to C ourt of A ppeals (o m itte d  in  p r in t in g ) .

[fol. 11] Transcript of Evidence—October 10, 1960 (omit­
ted in printing).

Co u nsel’s N ote B e R ecord

The parties stipulate that the transcript of the trial 
proceedings in the West ease is identical to the transcript 
in the Parker case.
[fol. 33] Transcript of Sentencing (omitted in printing).
[fol. 3S] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 40]
I n t h e  C ourt of A ppeals of A labama 

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

W illiam W est, Appellant, 

vs.
T he City of B irm in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns eacli of the following separately 
and severally:

1. The Court erred in over-ruling Appellant’s Motion 
to Strike the Complaint filed in this cause, to which ruling 
the Appellant took exceptions. (Tr. 2, 3, 5 & 13).

2. The Court erred in over-ruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took

.exceptions. (Tr. 3, 4, 5 & 13).



.



193

3. The Court erred in over-ruling the Appellant’s Mo­
tion to Exclude the Evidence filed in this cause, to which 
ruling Appellant took exceptions. (Tr. 5 & 25).

4. The Court erred in over-ruling Appellant’s Motion 
for a New Trial. (Tr. 6, 7, 9 & 37).

5. The Court erred in refusing to permit the witness, 
Lloyd L. Stalling, Assistant Store Manager of J. J. New­
berry Company, to testify as to the racial policies of afore­
said Company, in service of persons of different races to 
which ruling the defendant took exceptions. (Tr. 22 & 24).

Oscar W. Adam, Jr., Arthur D. Shores, J. Richmond 
Pearson, Peter A. Hall, Orzell Billingsley, Jr., 
Attorneys for Appellant.

Certificate of Service (omitted in printing).

[fol. 41]
I n t h e  C ourt of A ppeals  of t h e  S tate of A laisama

.......................J udicial D epa rtm en t

October Term, 19G0-G1
6 Div. S04

W illia m  W est ,

v.
C ity  of B ir m in g h a m .

Appeal from Jefferson Circuit Court

November 2 ,19G0 
Certificate Filed

January 30, 19G1 
Transcript Filed

\ April IS, 19G1
Come the parties by attorneys, and argue and submit 

this cause for decision.





194

Order of A ffirm a n ce—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, 
on authority of Gober v. City of Birmingham, 6th Division 
797, Ala. App. Ms. It is also considered that the appel­
lant pay the costs of appeal of this court and of the Circuit 
Court. *
[fol. 42] Application for Rehearing and Order Overruling 
(omitted in printing).
[fol. 42a] Proceedings on Petition for Certiorari (omitted 
in printing).
[fol. 43] Petition for Certiorari (omitted in printing).

C o u nsel’s N ote R e R ecord

The parties stipulate that the petition fded in the Ala­
bama Supreme Court in the TFesf case is identical to that 
filed in the Parker case.
[fol. 46] Order Denying Petition for Writ of Certiorari 
(omitted in printing).
[fol. 47] Application for Rehearing (omitting in print­
ing)-
[fol. 48] Order Overruling Application for Rehearing 
(omitted in printing).
[fol. 49] Clerks’ Certificates to foregoing transcript 
(omitted in printing).





195

[fol. 1]
I n  t h e  C ircu it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama 
in  and for J efferson  County

No. 20787

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

vs.

R obert D. S anders.

A ppea l  B ond (o m itte d  in  p r in t in g ) .

[fol. 2]
I n  t h e  C ircu it  Court of t h e  

T e n t h  J udicial C ircu it  of A labama 

No. 20787

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,

R obert D. S anders, Defendant.

Co m pla in t—Filed October 10,19G0
Comes the City of Birmingham, Alabama, a municipal 

corporation and complains that Robert D. Sanders, 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 S. H. Kress & Co. 1900 3rd 
Avenue, North, Birmingham, Alabama, after being warned





196

not to do so, contrary to and in violation of Section 1436 
of the General City Code of Birmingham of 1944.

Watts E. Davis, Attorney for City of Birmingham. 

[File endorsement omitted]

I n  t h e  C ircuit  C ourt of t h e  
T e n t h  J udicial C ircu it  of A labama

No. 207S7

C ity  of B irm in g h a m , 

vs.
R obert D. S anders.

M otion  to S trik e—Filed October 11, I960
Comes now Robert D. Sanders, defendant in this case, 

and moves to strike the complaint in this cause, and as 
grounds for said Motion, sets out and assigns the follow­
ing, separately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so vague 

and indefinite, as not to apprise this defendant of what 
he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, 
as a citizen of the State of Alabama, and of the United 
States, constitutes an abridgment of the freedom of as­
sembly, speech and liberties secured to the Defendant, by 
[fol. 3] the Constitution and laws of the State of Alabama 
and the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, 
as applied to the defendant, constitutes an abridgment of 
privileges and immunities guaranteed defendant, as a citi-



.



197

zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section 824 of the General City Code of the 
City of Birmingham, as applied to this defendant, a Negro 
citizen of the United States, constitutes a denial of due 
process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this court.

Arthur D. Shores, J. Richmond Pearson, Orzell Bil­
lingsley, Jr., Peter A. Hall, Attorneys for Defen­
dant.

[File endorsement omitted]

I n  t h e  C ircu it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama 

No. 20787

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

vs.
R obert D. S anders.

D em urrers—Filed October 10,19G0
Comes now Robert D. Sanders, defendant in this cause, 

and demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.
[fob 4] 2. That the complaint, affidavit or information
upon, which this cause is based is insufficient to support



■

■

■



198

prosecution of this cause, in that no offense is charged 
which is cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 143G of the 1944 General 
City Code of Birmingham, Alabama, as applied to this 
defendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United States 
of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this 
defendant, a citizen of the State of Alabama and of the 
United States, constitutes an abridgment of freedom of 
speech and assembly violative of rights and liberties se­
cured the defendant by the First and Fourteenth Amend­
ments to the Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

S. That the said Ordinance, as applied to defendant, 
constitutes a denial of equal protection of the laws in 
violation of the Fourteenth Amendment to the Constitution 
of the United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]





[fol. 5]
I n  t h e  C ircu it  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama

No. 20787

199

C ity  of B ir m in g h a m , Plaintiff,
versus

B obert D. S anders, Defendant.

M otion  to E xclude t h e  E vidence—Filed October 10,19G0
1. The complaint charging defendant, a Negro, with vio­

lation of 1436 of the General City Code of Birmingham of 
1944, to-wit, an alleged trespass upon land after being 
forbidden to enter or remain after told to leave is invalid 
in that the evidence establishes merely that defendant was 
peacefully upon the premises of Kress, an establishment 
performing an economic function invested with the public 
interest, as a customer, visitor, business guest or invitee, 
and there is no basis for the charge recited by the com­
plaint other than an effort to exclude defendant from 
Kress’ Eating Facilities because of his race or color; de­
fendant, at the same time is excluded from equal service at 
the preponderant number of other similar eating establish­
ments in Birmingham, Alabama; thereby depriving him of 
liberty without due process of law and of the equal protec­
tion of the laws secured by the 14th Amendment of the 
United States Constitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitutional 
rights to assemble with others for the purpose of speaking 
and protesting against the practice, custom and usage of 
racial discrimination in Kress, an establishment perform­
ing an economic function invested with the public interest;



■ t.



200

that defendant peacefully was attempting to obtain service 
in the facilities of Kress in the manner of white persons 
similarly situated, and at no time was defendant defiant 
or in breach of the peace and was at all times upon an area 
essentially public, wherefore defendant has been denied 
rights secured by the due process and ecpial protection 
clauses of the 14th Amendment of the United States Con­
stitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Bir­
mingham, Alabama, to permit defendant, a Negro, and 
[fol. 6] other members of defendant’s race from enjoying 
the access to such stores, facilities and accommodations 
afforded members of other races; and that by this prosecu­
tion, prosecuting witnesses and arresting officers are at­
tempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to 
the Constitution of the United States.

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted an 
invitation to enter and purchase articles in Kress, a store 
open to the public, but had not been allowed to obtain food 
service on the same basis as that offered white persons, 
because of defendant’s race or color; and, that in further­
ance of this racially discriminatory practice of Kress, de­
fendant was arrested on the basis of race or color, under 
color of law, to enforce racially discriminatory policy, 
thereby violating defendant’s rights under the equal pro­
tection and due process clauses of the 14th Amendment of 
the United States Constitution.

5. The statute or ordinance (143G of the General City 
Code of Birmingham of 1944) under which defendant, a





201

Negro, was arrested and charged 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 indi­
vidual’s whim, in that said statute does not require that 
the person making the demand to leave present documents 
or other evidence of possessory right sufficient to apprise 
defendant of the validity of the demand to leave, all of 
which renders the statute so vague and uncertain as applied 
to defendant as to violate his rights under the due process 
clause of the 14th Amendment of the United States Con­
stitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to be on 
property open to the public after being asked to leave, be­
cause of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.

7. The evidence against defendant, a Negro, establishes 
that he, at the time of arrest and all times covered by the 
complaint, was a member of the public, peaceably attempt­
ing to use a publicly owned facility, to-wit: Kress and from 
[fol. 7] which defendant was barred because of his race or 
color; that such denial was in accordance with a policy, 
custom and usage of Kress, of operating such facilities and 
services on a racially segregated basis, which policy, custom 
and usage violates the due process and equal protection 
clauses of the 14th Amendment of the Constitution of the 
United States.

S. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempting 
to use a facility, Kress, open to the public, which was denied
to him solely because of race or color; that ..................... ,
was and is offering, for a price, to serve all members of 
the public with food; that this public facility Kress, is,





202

along with others of a similar nature, performing a neces­
sary service for the public, which in fact, would have to be 
provided by the state i f ..................... and other like facil­
ities were all to withdraw said service; that having deter­
mined to offer said valuable service to the public, Kress is 
required to provide such service in the manner of state 
operated facilities of a like nature, to-wit: That Kress 
mav not segregate or exclude defendant on the ground of 
race or color, in violation of the due process and equal 
protection clauses of the 14th Amendment of the Lnited 
States Constitution.

Arthur D. Shores, J. Richmond Pearson, Peter A. 
Hall, Orzell Billingsley, Jr., Attorneys for De­
fendant.

[File endorsement omitted]

[fob 8]
I n  the Circuit Court of the 

T enth J udicial Circuit of Alabama

Appealed from Recorder’s Court
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding.

i City of B irmingham,

vs.
R obert D. Sanders.

J udgment E ntry—October 10,1960
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





203

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 over­
ruled, to which action of the Court in overruling said motion 
the defendant hereby duly and legally excepts; and the 
defendant files demurrers, and said demurrers being con­
sidered 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 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 overrul­
ing said motion, the defendant hereby duly and legally ex­
cepts; and on this the lltli day of October, 19G0, 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 
Robert D. Sanders, 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.
[fol. 9] 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 Robert D. Sanders, 
perform additional hard labor for the City of Birmingham 
for thirty days, as additional punishment in this cause.



-



204

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 
Tax, $1.00, leaving forty-four and 75/100 ($44.75) dollars 
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? 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 author­
ities 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, I960, 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 Bend 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as Required by Law.





[fol. 10]
In  the Circuit Court of the 

T enth  J udicial Circuit of Alabama

No. 20787

205

C ity of B irmingham, a Municipal Corporation, Plaintiff,
vs.

Robert D. S anders, Defendant.

Motion for a New T rial—Filed October 11, I960
Now comes the defendant, in the above styled cause and 

with leave of the Court, first had an obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the lltli day of October, 1960, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said motion sets out and assigns the 
following, separately and severally:

1. That the judgment of the Court in said case is contrary 
to the law.

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as to 
constitute a gross miscarriage of justice.

I 7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.



■



206

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The Court erred in overruling defendant’s demur­
rers filed in this cause.

11. The Court erred in overruling the defendant’s Motion 
to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances, under 
[fol. 11] which this defendant was charged and convicted, 
and as applied to this defendant, constituted an abridge­
ment of freedom of speech violative of rights and liberties 
secured to the defendant by the First and Fourteenth 
Amendments to the Constitution of the United States of 
America.

13. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

15. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this cause.

16. That it appeared from the evidence that no owner 
of the premises involved had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured by 
the officials of the City of Birmingham, Alabama, without





207

first having a complaint from such owner, or other person 
in charge of such premises.

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against the defendant for trespass on private 
property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bil­
lingsley, Jr., J. Richmond Pearson, Peter A. Hall, 
Attorneys for Defendant.

[fol. 12]
Order Overruling

The foregoing Motion being presented in open court, 
this the 11th day of October, 19G0; the same being con­
sidered and understood, the Court is of the opinion that the 
same should be overruled.

It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge.

[File endorsement omitted]

Appeal B ond to Court of A ppeals (omitted in printing). 

[File endorsement omitted]





[fol. 14]
I n t h e  C ircuit  C ourt of t h e  

T e n t h  J udicial C ircu it  of A labama 
I n and for J efferson  C ounty

N o. 20787

2 0 8

T h e  C ity  of B ir m in g h a m , a Municipal Corporation,
versus

R obert D. S anders.

Birmingham, Alabama

Transcript of Evidence—October 10, 1960
B e fo r e : Honorable George L. Bailes, Judge.

A ppearances :

For the City, Mr. Watts E. Davis.
For the Defendant, Messrs. A. D. Shores, Orzell Billings­

ley, Jr., Peter A. Hall, Oscar W. Adams, Jr., J. Richmond 
Pearson.
[fol. 16]

P roceedings

Mr. Davis: Mr. Caldwell.
I

J. P. C aldw ell, ca lled  a s  a  w itn ess , h a v in g  been  firs t 
d u ly  sw o rn , te s tified  as fo llo w s :

Direct examination.

By Mr. Davis:
Q. Will you state your full name?
A. J. P. Caldwell.
Q. By whom are you employed?
A. City of Birmingham.





209

Q. Were you so employed on March 31,1960?
A. Yes, sir.
Q. I will ask you if you had orders or received a call to 

go to the Kress 5 and 10  ̂ Store on the morning of March 
31,I960!

A. Yes, sir.
Q. When you arrived there did you go near the eating 

area or luncheonette area?
A. In the basement, yes, sir.
Q. What did you observe, if anything unusual on that 

occasion there?
A. Officer Thompson and I went downstairs in the base­

ment. The lunchroom was closed. The lights were out. 
We observed two black males Roosevelt Westmoreland and 
Robert D. Sanders sitting there.

Q. Did you on that occasion put the two boys under 
arrest?

A. Yes, sir.
Q. Do you see those two boys in the Courtroom?
A. Yes, sir.
Q. Are they the defendants sitting between counsel here 

at my right ?
A. Yes, sir.
Q. Was any statement made by any person employed 

[fol. 17] by Kress’ in the presence and hearing of these two 
defendants that morning?

A. There was by Mr. Braswell.
Q. Who is he ?
A. He is Manager of the lunch counter, Kress’ lunch 

counter, and there was another gentleman in his presence 
also. I didn’t get his name.

Q. What, if anything, did you hear Mr. Braswell say 
to the two defendants on this occasion?

A. Mr. Braswell told us in the presence of the defendants 
here that they couldn’t be served and he had turned the 
lights out and closed the counter.

Q. You then put them under arrest ?
A. Yes, sir.
Q. Was this in the City of Birmingham ?
A. Yes, sir.
Q. Second Avenue between 19th and 20th Street.





2 1 0

A. Third Avenue.
Q. That is on the corner  of Third Avenue and 19tli Street 

North!
A. Yes, sir.
Mr. Davis: That is all. Thank you.

Cross examination.

By Mr. Hall:
Q. Officer Caldwell, did Mr. Braswell tell the defendants 

to leave the lunch counter ?
A. He told them they couldn’t be served, that the counter 

was closed.
Q. Did he tell them to leave the lunch counter!
A. I don’t know whether he did or not.
Q. You didn’t hear him say that!
A. No, I didn’t.
Q. Did he ask you to arrest them ?
A. No, he didn’t.
Q. Did anyone in Kress’ ask you to put them under

arregt|
[fol. 18] A. No, they didn’t.

Q. Did you hear anyone at Kress’ ask them to leave the 
lunch counter!

A. No, I didn’t.
Mr. Hall: That is all.
Mr. Davis: Mr. Pearson.
I

Albert O'. P earson, called as a witness, having been first 
duly sworn, testified as follows:

Direct examination.

By Mr. Davis:
Q. Will you state to the Court your full name!
A. Albert J. Pearson.
Q. Are you employed by S. II. Kress & Company!
A. Yes, sir.





211

Q. Were you employed on March 31, of this year?
A. Yes.
Q. In what capacity were you employed then Mr. Pear­

son?
A. Steward or Manager.
Q. Are your services concerned directly with the lunch 

counter or the eating counter ?
A. Yes, sir.
Q. I)o your duties involve over all supervision of the 

counter, purchasing and personnel problems and so forth?
A. Yes, sir.
Q. Would you say that was equivalent to being Manager 

in that department?
A. Yes, sir.
Q. On the morning of March 31. of this year did you 

have occasion to observe two colored boys present in the 
eating area?

A. Yes, sir.
Q. Were they seated?
A. Yes, sir.

[fol. 19] Q. Did you have any conversation with either or 
both of these boys?

A. Yes, sir.
Q. What was that conversation, Mr. Pearson?
A. I approached them from the inside of the bay that 

they were sitting and informed the boys that the bay was 
closed and I put up a closed sign and told them we couldn't 
serve them and they would have to leave.

Q. When you say bay, is the counter shaped in a series 
of arcs or different sections?

A. Yes, sir.
Q. When you say bay you are speaking of one section ?
A. One section.
Q. You say you turned off the light in the bay in which 

they were sitting?
A. Yes, sir.
Q. What did they do after the light was turned off and 

you heard the first conversation with them ?
A. After placing the closed signs in that bay I went to 

the back and cut the light out and as J came back out the 
boys had moved from that bay and sat down in bay num­
ber two.





212

Q. What did you do at that time!
A. I approachod them again and said, “Boys you will 

have to leave because I can’t serve you and the bay is 
closed. We are closing.” And I proceeded as I told them 
that I was putting up closed signs on that bay.

Q. What did they do after that conversation f
A. Which one it was as I turned I don’t remember but 

one of the boys said, “Well, we have our rights.” And with 
that I proceeded to call the Manager of the store.

Q. Did he have any conversation, the Manager, with 
these boys in your presence?

A. When he came down the lunch department is in the 
basement, when he came down and approached the counter, 
[fol. 20] he asked me had I asked them to leave.

Q. Did he say anything to these two boys ?
A. Yes, sir.
Q. Whatwrasit?
Mr. Billingsley: I am going to object to that as purely 

hearsay.
Mr. Davis: 1 am talking about a statement made in this 

man’s presence to the two defendants. What was the 
statement Mr. Braswell made to these two boys in your 
presence?

— A. He asked them to leave the store.
Q. Did they respond in any way?
A. No, sir.
Q. Did the police ultimately come and place the boys 

under arrest?
A. As I turned around, the Manager and I turned around 

to walk away from the boys, the police came in and asked 
them to get up and I think the first time they asked them 
that they still didn’t get up and then they told the boys 
to please get up and with that three or four more policemen 
come between us and the two officers who approached the 
boys and they carried them out of the store.

Q. When you say carried you mean lifted them up?
A. No, escorted them out. I am sorry.
Mr. Davis: That is all.





213

Cross examination.

By Mr. Hall:
Q. Mr. Braswell is the General Manager of the Kress 

Store?
A. That is right.
Q. And you had told the boys to leave?
A. Yes, sir.
Q. Did you mean to leave the store?
A. To leave the area. The lunch department is enclosed 

in a railing, they would have to leave that section.
[fol. 21] Q. To leave that section yes. Not the store?

— A. The store was not mentioned.
Q. How many bays are there in the lunch facilities?
A. Four.
Q. Did you close all of the bays?
A. Yes, sir.
Q. Yon closed the entire lunchroom area?
A. After the boys moved to the second bay and I closed 

the lights for that bay and I also closed down the other 
three bays.

Q. And this was because they would not leave, is that 
why you closed the lunchroom area ?

A. I closed on orders of the Manager.
Q. You had already talked with the Manager?
A. That is right.
Q. Did you call the police ?
A. I personally, no.
Q. Did Mr. Braswell call them in your presence?
A. Not in my presence.
Q. Did you ask the police to arrest these boys ?
A. Not personally.
Q. Did Mr. Braswell request it in your presence?
A. Not in my presence.
Q. Did you sign a complaint or affidavit against these 

boys down at the Police Department ?
A. No.
Q. You have not signed one at all ?
A. No.
Q. Do you know if Mr. Braswell signed one ?
A. I can’t answer that truthfully, I don't know.





214

Q. Did Mr. Braswell sign one on the occasion in your 
presence ?

A. In my presence, nothing was signed.
Q. So far as you know he has not signed one since or 

requested arrest!
A. Whether he signed or hasn’t signed I couldn’t tell you. 

[fol. 22] Q. You don’t know?
A. No.
Q. Is Mr. Braswell here today?
A. In the Courtroom ?
Q. In the Courtroom?
A. No.
Q. Is he here as a witness?
A. I can’t answer that.
Q. You haven’t seen him here?
A. Not in the Courtroom.
Q. Did you testify in the previous hearing in the City 

Court?
A. No—for this case?
Q. Yes.
A. No.
Q. This is the first time that you have testified?
A. Yes.
Q. Are you still employed by Kress’?
A. Yes.
Q. In the same capacity?
A. Yes.
Q. Tell us is the Kress store a general department store 

selling merchandise to the buying public?
‘A. Yes.
Q. Do they advertise in local newspapers and other 

media?
A. They do some advertising. To what extent I don’t 

really keep up with.
Q. The advertising you have seen some advertising?
A. For Kress’ yes.
Q. Is that advertising beamed to the general buying 

public?
A. I would assume so.
Q. Does it request or invite persons to come into Kress’ 

Store and buy merchandise?



■



[fol. 23] A. I wouldn't say it invites. It advertises that 
the merchandise is there for sale.

Q. You wouldn't say that that is an invitation to come 
to buy?

A. Well that is a fine point if I might quote an opinion 
as to inviting somebody.

Q. The whole purpose is to invite the buying public to 
come in and buy ?

A. I would assume so.
Q. You understand that to be the case!
Mr. Davis: We object to that.
Mr. Hall: We withdraw the question.
Q. As Manager of the lunch counter have you had any 

advertising in the local newspapers with reference to what 
you have to sell ?

A. About three ads in nine years.
Q. About three ads in nine years. Do you recall those 

ads? Do you recall generally? They advertised food or 
sundries of some type for sale at Kress’ luncheonette?

A. That is right.
Q. Advertisements placed in the local newspapers is 

that so?
A. Yes.
Q. Do you have any facilities in your store for colored 

customers alone?
A. Xo.
Q. Is your lunch facilities at Kress’ for the customers 

who come in Kress’ ?
A. Yes.
Q. When you advertise do you advertise for white cus­

tomers to come in and buy sundries and food or just 
advertise generally?

A. We advertise generally.
Q. You don't specifically, don't specify whether it is 

white or colored?
A. Xo.

[fol. 24] Q. Well now does Kress have white and colored 
customers.ordinarily, not in the lunchroom but generally?

A. Yes.





2 1 6

Q. Do you observe colored and white persons at the 
candy counters in Kress’ buying candy?

A. Yes.
Q. Do they buy from the same counter?
A. Yes.
Q. And they buy generally at the other departments, at 

the notions. Is that right?
A. Well that is placing me in a lot of departments in 

the store out of my own. When I walk through the store 
they are purchasing. Whether I stop and see that they 
make the actual purchases, I don’t.

Q. But you have seen colored and white customers trad­
ing at Kress’ together?

A. Yes.
Q. For how many years have you worked for the local 

Kress Store?
A. Nine years.
Q. And during that nine-year period you have seen white 

and colored customers trading together at Kress’ Store?
A. That is right.
Q. And you do advertise in the local newspaper at least 

three or four times a year you say?
A. No, about three times in nine years.
Q. When you do advertise you advertise your lunch­

eonette or your business?
A. No, the last time I just advertised apple pies at the 

bakery counter.
Q. Apple pies at the bakery counter. Have you adver­

tised malted milks for 15(* on some occasion?
A. Just on the opening day.
Q. When you do there is no racial tag on it?

[fol. 25] A. No.
Q. It is beamed to the general buying public?
A. Right.
Q. Have you had occasion to close down your luncheon 

facilities before?
A. Yes.
Q. This was not the first time you did it?
A. No.



■



217

Q. On this occasion you closed them down immediately 
after you observed the two boys sitting at the counter, is 
that true?

A. That is right. I didn’t close it until after I told them 
they couldn’t be served and then I closed.

Q. You asked them to leave?
A. Eight.
Q. They would not leave and so then you closed the 

facilities?
A. Right.
Q. How long did they stay there before the police came?
A. "Well I closed down one section and as I was walking 

back from the dish room to the last lunch area I observed 
them having moved from one bay to the second bay and 
I again approached the boys and told them we had closed, 
we couldn’t serve them and they would have to leave and 
I went back to cut out the lights not only for the second 
bay but all of the other bays.

Q. How long did they stay there then?
A. Until the police arrived.
Q. Do you have an opinion as to the length of time?
A. No because my kitchen was calling me for preparation 

of food and it was between fifteen and twenty-five minutes 
I guess. Time with me escapes.

Q. Just prior to closing your counter were there other 
persons seated there?

A. At that particular counter?
Q. Within the rail at the closed facility?

[fol. 26] ■ A. I would say between three and five people . 
in the whole department.

Q. And when the boys sat down there were other persons 
there before you closed up, is that true?

A. They were eating, yes, sir, or having coffee.
Q. Did everyone leave when you closed except these two 

boys?
A. Everyone I think except for an elderly woman who 

^ finished her sandwich and left.
Q. Was she sitting there when the police came?
A. I don’t recall whether she was sitting or walking oat.
Q. But she did remain after you closed the facilities?
A. Yes.



'



218

Q. Was she arrested!
A. I couldn’t answer that. I don’t know.
Q. So far as you know she was not, is that true!
A. As far as I know she was not. I don’t know whether 

she was.
Q. You haven’t been called upon to hear witness against 

her, have you!
A. No.
Q. Is there a luncheonette on the first floor!
A. I beg your pardon!
Q. Is there a luncheonette on the first floor!
A. No.
Q. The entire facilities is in the basement!
A. Right.
Q. At the bakery counter you do serve colored persons, 

is that true!
A. Yes, to take out.
Q. Do you have charge also of the candy!
A. No.
Q. Have you had occasion to sell colored persons any 

food at all at the luncheon counter to carry out!
A. We have a carry-out service.

[fol. 27] Q. You have a carry-out service!
A. Sure, a delivery boy.
Q. Assume that some colored person would come in 

and purchase to carry out food, do you solicit that!
A. Yes, to carry out.
Q. To carry out!
A. Yes.
Q. But you do not sell colored persons to sit and eat 

is that true!
A. No.
Mr. H all: That is all.
Mr. Davis: That is all.

[fol. 28] Transcript of Sentencing (omitted in printing).
[fol. 33] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).





219

[fol. 35]
I n  t h e  C ourt of A ppeals of A labama

R obert D. S anders, Appellant, 
vs.

T h e  C ity  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, 
had and done in the Honorable Circuit Court of JelTerson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns each of the following separately 
and severally:

1. The Court erred in overruling Appellant’s Motion 
to Strike the Complaint filed in this cause, to which ruling 
the appellant took exceptions. (Tr. 2, 3 & 8)

2. The Court erred in overruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took 
exceptions. (Tr. 3, 4 & 8)

3. The Court erred in overruling the Appellant’s Motion 
to Exclude the Evidence filed in this cause, to which ruling 
Appellant took exceptions. (Tr. 5, 7 & 8)

i

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9,10 & 12)

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Certificate of Service (omitted in printing).



■

'



220

[fol. 36]
I n t h e  Court of A ppeals  of t h e  S tate of A labama

_________ J udicial D epa rtm en t

October Term, 1960-61
6 Div. 801

R obert D. S anders,

v.
C ity  of B ir m in g h a m .

Appeal from Jefferson Circuit Court
November 2, 1960 

Certificate Filed
January 30, 1961 

Transcript Filed
April 18, 1961

Come the parties by attorneys, and argue and submit 
this cause for decision.

Order of A ffirm a n ce— 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, 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.

[fol. 37] Application for Rehearing and Order Over­
ruling (omitted in printing).

[fol. 37a] Proceedings on Petition for Certiorari (omitted 
in printing).





221

[fol. 38]
I n t h e  S u prem e  Court of A labama 

No. 755 Sixth Division
Ex P arte : R obert D. S anders

R obert D. S anders, Appellant, 
vs.

C ity  of B irm in g h a m , Appellee.

P etitio n  for C ertiorari—Filed July 3, 1961
To the H onorable  C h ief  Ju s t ice  and A sso c ia te  J u s t ic e s  

of the S u p rem e  Court of  Alabama.

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, and J. Richmond Pearson, and respect­
fully petitions this Honorable Court to review, revise, re­
verse and hold for naught that certain Judgment of the 
Court of Appeals, on to-wit: May 30, 1961, wherein Robert
D. Sanders was Appellant and the City of Birmingham 
was Appellee, which Judgment affirms the Judgment of the 
Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a Rehearing of said cause and Brief in 
Support thereof were duly filed by your petitioner within 
the time required by law, and that said application for 
rehearing was overruled by said Court of Appeals on the 
20th day of June, 1961.

3. Your petitioner respectfully shertv-s unto the Court that 
this cause arose from a complaint filed by the City of Bir­
mingham, charging your petitioner with violating Section 
1436 of the General City Code of Birmingham, viz:

“Any person who enters into the dwelling house or goes 
or remains on the premises of another, after being



-

■



222

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 discharge of official 
duties.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the 
Complaint was so vague and indefinite as not to apprise 
the Appellant of what he was called upon to defend, and 
further, that the ordinance which formed the basis of prose- 
[fol. 39] cution, as applied to appellant, constituted an 
abridgement of the privileges and immunities guaranteed 
by the Constitution of the United States and that the ordi­
nance was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the 
Demurrers whereupon petitioner was tried without a jury, 
and was found guilty of Trespass after Warning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced 
to a term of Thirty (30) days of hard labor for the City of 
Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence, at the close of the City’s case, which Motion was 
denied. After judgment and sentence, petitioner filed a 
Motion for a New Trial, which Motion was denied, and 
petitioner perfected his appeal.

7. Your petitioner further shows unto Your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause upon the opinion judgment 
rendered in the case of James Gober vs. City of Birming­
ham, Sixth Division—797, decided May 30, 1961, which 
case had a different factual situation from petitioner’s case; 
and there was a different proposition of law involved in 
petitioner’s case, not involved in case of Gober v. City of 
Birmingham.

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:



.



223

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in vio­
lation of the Fourteenth Amendment to the United States 
Constitution.

B. That the Ordinance and Complaint, the basis of the 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of the 
equal protection of the laws, all in violation of the Four­
teenth Amendment to the United States Constitution.

C. That to warrant a conviction, the evidence must iden­
tify the accused, as the person who committed the crime.
[fol. 40] The Court of Appeals erred in failing to rule 
that the conviction of petitioner was a violation of due 
process of law, an abridgement of the privileges and im­
munities, equal protection of the law, and a violation of 
the Fourteenth Amendment to the Constitution of the 
United States.

Wherefore, Your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the seal 
of this Court, directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete transcript of record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that this 
cause may be reviewed and determined by this Honorable 
Court, as provided by law and the rules and practice of 
this Court, and that this Court thereupon proceed to review 
and correct the errors complained of and to reverse the 
Judgment of the Court of Appeals or render such Judg­
ment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi­
cate of Affirmance of said cause, during the pendency of 
this petition.





224

And petitioner prays for such other, further and addi­
tional relief in the premises, as to this Court may seem 
appropriate, and to which he may he entitled, and your 
petitioner will ever pray.

Respectfully submitted,
Arthur D. Shores, Peter A. Hall, Orzoll Billingsley, 

Jr., Oscar W. Adams, J. Richmond Pearson, By 
Arthur D. Shores, Attorneys for Appellant.

[fol. 41] Duly stcorn to by Arthur D. Shores, jurat omit­
ted in printing.

Certificate of Service (omitted in printing).

[fol. 42] Order Denying Petition for Writ of Certiorari 
(omitted in printing).

[fol. 43] Application for Rehearing (omitted in printing).

[fol. 44] Order Overruling Application for Rehearing 
(omitted in printing).

[fol. 45] Clerks’ Certificates to foregoing transcript 
(omitted in printing).





225

[fol. 1]
I n t h e  C ircu it  C ourt of t h e  T e n t h  J udicial, C ircuit 

of A labama in  and for J efferson  C ounty

No. 20792

T h e  C ity  of B irm in g h a m ,

vs.

R oosevelt W estmoreland.

A ppea l  B ond (o m itte d  in  p r in t in g )

[fol. 2]
I n t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircuit

of A labama

No. 20792

C ity of B ir m in g h a m , a  Municipal Corporation, Plaintiff,
vs.

R oosevelt W estmoreland , Defendant.

Co m pla in t— Filed October 10,19G0 
Comes the City of Birmingham, Alabama, a municipal 

corporation and complains that Roosevelt Westmoreland, 
within twelve months before the beginning of this prosecu­
tion and within the City of Birmingham or the police juris­
diction thereof, did go or remain on the premises of 
another, said premises being the area used for eating, drink­
ing, and dining purposes and located within the building 
commonly and customarily known as S. II. Kress & Co., 
1900 3rd Avenue, North, Birmingham, Alabama, after 
being warned not to do so, contrary to and in violation of 
Section 143G of the General City Code of Birmingham of 
1944.

Watts E. Davis, Attorney for City of Birmingham.

[File endorsement omitted]



■



2 2 6

I n  t h e  C ircuit Court of t h e  T e n t h  J udicial C ircu it  
of A labama

No. 20792

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

vs.
R oosevelt W est M oreland.

M otion to S trik e— Filed October 10, 1960
Comes now Roosevelt West Moreland, defendant in this 

cause, and moves to strike the complaint in this cause, 
and as grounds for said Motion, sets out and assigns the 
following, separately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so 

vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, 
as a citizen of the State of Alabama, and of the United 
[fol. 3] States, constitutes an abridgment of the freedom 
of assembly, speech and liberties secured to the Defendant, 
by the Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, 
as applied to the defendant, constitutes an abridgment of 
privileges and immunities, guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section 824 of the General City Code of the City 
of Birmingham, as applied to this defendant, a Negro citi-



'



227

zen of the United States, constitutes a denial of due process 
and equal protection of law, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this Court.

Arthur D. Shores, J. Richmond Pearson, Orzell 
Billingsley, Jr., Peter A. Hall, Attorneys for De­
fendant.

[File endorsement omitted]

I n the Circuit Court of the T enth J udicial Circuit 
of A labama

No. 20792

City of B irmingham,

vs.
R oosevelt W est Moreland.

D emurrers—Filed October 10, 19G0
Comes now Roosevelt West Moreland, defendant in this 

cause, and demurs to the complaint in this cause, and to 
each and every count thereof, separately and severally, 
and as grounds for such demurrer sets out and assigns the 
following, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
[fol.4] offense under the Constitution and laws of the 
State of Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.





2 2 8

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
deefndant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this de­
fendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United States 
of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this de­
fendant, a citizen of the State of Alabama and of the 
United States, constitutes an abridgment of freedom of 
speech and assembly violative of rights and liberties se­
cured the defendant by the First and Fourteenth Amend­
ments to the Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, 
constitutes a denial of equal protection of the laws in vio­
lation of the Fourteenth Amendment to the Constitution 
of the United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar W. Adams, 
Jr., Attorneys for Defendant.

[File endorsement omitted]



■



229

[fol. 5]
I n  the Circuit Court of the T enth J udicial Circuit

of A labama

City of B irmingham, 

vs.
Roosevelt W estmoreland.

Appealed from Recorder’s Court 
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

J udgment E ntry—October 10, I960
This the 10th day of October, I960, came Win. 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 mo­
tion being considered by the Court, it is ordered and ad­
judged 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
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, 19f>0, the Court finds the defendant guilty 
as "charged in the Complaint and thereupon assessed a fine





200

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 Recorder’s 
Court, or to confess judgment with good and sufficient se­
curity therefor.

It is further considered by the Court, and it is ordered 
[fob G] and adjudged by the Court, and it is the sentence 
of the Law, that the defendant, the said Roosevelt "West­
moreland, 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 fifty-two 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 tax­
able for sentence, it is ordered by the Court that said de­
fendant 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 au­
thorities 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.





231

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 questions 
of Law were reserved by the defendant for the considera­
tion 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.

[fol. 7]
In the Circuit Court of the 

T enth J udicial Circuit of A labama

No. 20792

City of B irmingham, a Municipal Corporation, Plaintiff,
versus

R oosevelt W est Moreland, Defendant.

Motion for a N ew T rial—Filed October 11, I960
Now comes the defendant, in the above styled cause and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the 11th day of October, 19G0, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said motion sets out and assigns the fol­
lowing, separately and severally:

1. That the judgment of the Court in said case is con­
trary to the law.

2. For that the judgment of the Court is contrary to the 
facts.



.

'



232

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The Court erred in overruling defendant’s demurrers 
filed in this cause.

11. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham, 
Alabama, in that the laws or ordinances, under which this 
defendant was charged and convicted, and as applied to 
[fol. S] this defendant, constituted an abridgement of free­
dom of speech violative of rights and liberties secured to 
the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

13. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Binning-





233

ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
Amendment to the United States Constitution.

15. The Court erred in overruling defendant’s Motion to 
exclude the evidence in this cause.

16. That it appeared from the evidence that no owner of 
the premises involved had caused the arrest and prosecution 
of the defendant, but that such arrest was procured by the 
officials of the City of Birmingham, Alabama, without first 
having a complaint from such owner, or other person in 
charge of such premises.

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances of 
the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises in­
volved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against the defendant for trespass on private 
property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bill- 
[fol. 9] ingsley, Jr., J. Richmond Pearson, Peter 
A. Hall, Attorneys for Defendant.

O rder Overruling

The foregoing Motion being presented in open Court, this 
the 11 tli day of October, I960; the same being considered 
and understood, the Court is of the opinion that the same 
should be overruled.



.



It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge.

[File endorsement omitted]

Appeal Bond to Court of Appeals (omitted in printing).

234

[fo l. 11] T ranscript of E vidence— October 10, 1960 (omit­
ted in printing).

Cou nsel’s N ote B e B ecord

The parties stipulate that the trial transcript in the 
Westmoreland case is identical to that in the Sanders case.

[fol. 25] Transcript of Sentencing (omitted in printing).

[fol. 30] Beporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 32]
I n  t h e  Court of A ppeals of A labama

B oosevelt W estmoreland, Appellant, 
vs.

T h e  C ity  of B irm in g h a m , Appellee.

A ssign m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Becord of the proceedings, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns each of the following separately 
and severally:





235

1. The Court erred in overruling Appellant’s Motion to 
Strike the Complaint filed in this cause, to which ruling the 
Appellant took exceptions (Tr. 2,3 & 8)

2. The Court erred in overruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took ex­
ceptions. (Tr. 3,4&8)

3. The Court erred in overruling the Appellant’s Motion 
to Exclude the Evidence filed in this cause, to which ruling 
Appellant took exceptions. (Tr. 5, 7 & 8)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9 ,10&12)

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Certificate of Service (omitted in printing).

[fol. 33]
I n  t h e  C ourt of A ppeals of t h e  S tate of A labama

...................... J udicial D epartm ent

October Term, 1960-G1
6 Div. 805

R oosevelt W estmoreland,

v.
C ity of B irm in g h a m .

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate Filed

January 30,1961 
Transcript Filed

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

cause for decision.





236

Order of A ffirm a n ce—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, 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.

[fol. 34] Application for Rehearing and Order Overrul­
ing (omitted in printing).

[fol. 34a] Proceedings on Petition for Certiorari (omitted 
in printing).

[fol. 35]
P etitio n  for C ertiorari (omitted in printing)

Counsel’s N ote R e R ecord

The parties stipulate that the petition filed in the Alabama 
Supreme Court in the Westmoreland case is identical to 
that filed in the Sanders case.

[fol. 38] Order Denying Petition for Writ of Certiorari 
(omitted in printing).

[fol. 39] Application for Rehearing (omitted in printing).

[fol. 40] Order Overruling Application for Rehearing 
(omitted in printing).
[fol. 41] Clerks’ Certificates to foregoing transcript 
(omitted in printing).



'



237

[fo l. 1]

I n  t h e  C ircuit  Court of t h e  T e n th  J udicial C ircuit 
of A labama in  and for J efferson  C ounty

No. 20790

T h e  C ity of B irm in g h a m ,

vs.
J essie  W alker .

Appeal Bond (omitted in printing).

[fo l. 2] [File endorsement omitted]

I n  t h e  C ircu it  C ourt of t h e  
T e n t h  J udicial C ircuit of A labama

No. 20790

C ity  of B ir m in g h a m , a  Municipal Corporation, Plaintiff,
vs.

J essie  W alker , Defendant.

C o m pla in t—Filed October 10,1960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that Jessie Malker, 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 F. \\ . A\ oolworth Co., 219 North 
19th Street, Birmingham, Alabama, after being warned 
not to do so, contrary to and in violation of Section 1-136 
of the General City Code of Birmingham of 1944.

Watts E. Davis, Attorney for City of Birmingham.





238

I n  t h e  C ircu it  C ourt of t h e  
T e n t h  J udicial, C ircu it  of A labama

No. 20790

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

vs.
J esse W a lker .

M otion to S trik e—Filed October 10,1960
Comes now Jesse Walker, defendant in this cause, and 

moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sep­
arately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so vague 

and indefinite, as not to apprise this defendant of what he 
is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, 
as a citizen of the State of Alabama, and of the United 
States, constitutes an abridgment of the freedom of as- 
[fol. 3] sembly, speech and liberties secured to the Defen­
dant, by the Constitution and laws of the State of Alabama 
and the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, as 
applied to the defendant, constitutes an abridgment of 
privileges and immunities, guaranteed defendant, as a 
citizen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section 824 of the General City Code of the City 
of Birmingham, as applied to this defendant, a Negro citi­
zen of the United States, constitutes a denial of due process



iit& aiiua'i uli io  bits W ;>mig M i lo n'tf& fmtf.



239

and equal protection of law, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this Court.

Arthur D. Shores, J. Richmond Pearson, Peter A. 
Hall, Oscar W. Adams, Jr., Orzell Billingsley, Jr., 
Attorneys for Defendant.

[File endorsement omitted]

I n t h e  C ircuit  C ourt of t h e  
T e n t h  J udicial C ircuit of A labama

No. 20790

C ity  of B irm in g h a m ,

vs.
J esse W alker.

D emurrers—Filed October 10, I960
Comes now Jesse Walker, defendant in this cause, and 

demurs to the complaint in this cause, and to each and every 
count thereof, separately and severally, and as grounds for 
such demurrer sets out and assigns the following, separately 
and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
[fol. 4] offense under the Constitution and laws of the State 
of Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.





240

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this de­
fendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United 
States of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this de­
fendant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech and 
assembly violative of rights and liberties secured the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
is unconstitutional on its face in that it is so vague as to 
constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, con­
stitutes a denial of equal protection of the laws in violation 
of the Fourteenth Amendment to the Constitution of the 
United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Richard 
Pearson, Peter A. Hall, Oscar W. Adams, Jr., At­
torneys for Defendant.

[File endorsement omitted]



-Jm to



241

[fol. 5]
I n  t h e  C ircuit  C ourt of t h e  T e n t h  J udicial C ircuit  

o f  A labama

No. 20790

C ity  of B ir m in g h a m , Plaintiff, 
versus

J e s s e 'Walker, Defendant.

M otion  to E xclude t h e  E vidence— Filed October 10, 19G0
1. The complaint charging defendant, a Negro, with 

violation of 1436 of the General City Code of Birmingham 
of 1944, to-wit, an alleged trespass upon land after being 
forbidden to enter or remain after told to leave is invalid 
in that the evidence establishes merely that defendant 
was peacefully upon the premises of Woolworth Eating 
Facilities, an establishment performing an economic func­
tion invested with the public interest, as a customer, 
visitor, business guest or invitee, and there is no basis 
for the charge recited by the complaint other than an effort 
to exclude defendant from 'Woolworth’s Eating Facilities 
because of his race or color; defendant, at the same time 
is excluded from equal service at the preponderant number 
of other similar eating establishments in Birmingham, 
Alabama; thereby depriving him of liberty without due 
process of law and of the equal protection of the laws 
secured by the 14th Amendment of the United States Con­
stitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
trespass upon land after being forbidden to enter estab­
lishes that he was, at the time of arrest and at all times 
covered by the charge, in peaceful exercise of constitu­
tional rights to assemble with others for the purpose of 
speaking and protesting against the practice, custom and 
usage of racial discrimination in Moolwoiths Eating I'a-



II - 'its ■ Sfti ■ d I tl



242

cilities, an establishment performing an economic function 
invested with the public interest; that defendant peace­
fully was attempting to obtain service in the facilities 
of Woolworth’s Eating Facilities in the manner of white 
persons similarly situated, and at no time was defendant 
defiant or in breach of the peace and was at all times 
upon an area essentially public, wherefore defendant has 
been denied rights secured by the due process and equal 
protection clauses of the 14th Amendment of the United 
States Constitution.

3. The evidence establishes that prosecution of defen­
dant was procured for the purpose of preventing him from 
engaging in peaceful assembly with others for the purpose 
of speaking and otherwise peacefully protesting in public- 
places the refusal of the preponderant number of stores, 
facilities and accommodations open to the public in Bir- 
[fol. 6] mingham, Alabama to permit defendant, a Negro, 
and other members of defendant’s race from enjoying the 
access to such stores, facilities and accommodations af­
forded members of other races; and that by this prose­
cution, prosecuting witnesses and arresting officers are 
attempting to employ the aid of the Court to enforce a 
racially discriminatory policy contrary to the due process 
and equal protection clauses of the 14th Amendment to 
the Constitution of the United States.

4. The evidence against defendant, a Negro, in support 
of the complaint charging him with violation of trespass 
upon land after being forbidden to enter clearly indicates 
that defendant at the time of his arrest, had accepted 
an invitation to enter and purchase articles in Woolworth’s 
Eating Facilities, a store open to the public, but had not 
been allowed to obtain food service on the same basis as 
that offered white persons, because of defendant’s race or 
color; and, that in furtherance of this racially discrimi­
natory practice of Woolworth’s Eating Facilities, defen­
dant was arrested on the basis of race or color, under 
color of law, to enforce Woolworth’s Eating Facilities 
racially discriminatory policy, thereby violating defen­
dant’s rights under the equal protection and due process



'



243

clauses of the 14th Amendment of the United States Con­
stitution.

5. The statute or ordinance (1436 of the General City 
Code of Birmingham of 1944) under which defendant, a 
Negro, was arrested and charged 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, in that said statute does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise defen­
dant of the validity of the demand to leave, all of which 
renders the statute so vague and uncertain as applied to 
defendant as to violate his rights under the due process 
clause of the 14th Amendment of the United States Con­
stitution.

6. Section 1436 of the General City Code of Birmingham 
of 1944 under which defendant, a Negro, was arrested and 
charged with violation of trespass upon land after being 
forbidden to enter is on the evidence unconstitutional as 
applied to defendant in that it makes it a crime to b<* 
on property open to the public after being asked to leave, 
because of race or color, in violation of defendant’s rights 
under the due process and equal protection clauses of the 
14th Amendment of the United States Constitution.
[fol. 7] 7. The evidence against defendant, a Negro, es­
tablishes that he, at the time of arrest and all times covered 
by the complaint, was a member of the public, peaceably 
attempting to use a publicly owned facility, to-wit: Wool- 
worth’s Eating Facilities and from which defendant was 
barred because of his race or color; that such denial was 
in accordance with a policy, custom and usage of Wool- 
worth’s Eating Facilities, of operating such facilities and 
services on a racially segregated basis, which policy, cus­
tom and usage violates the due process and equal protec­
tion clauses of the 14th Amendment of the Constitution of 
the United States.

8. The evidence offered against the defendant, a Negro, 
establishes that at the time of arrest and all times covered 
by the complaint he was a member of the public, attempt-



§§



244

ing to use a facility, Woolworth’s Eating Facilities, open 
to the public, which was denied to him solely because of 
race or color; that Woolworth’s eating facilities, was and 
is offering, for a price, to serve all members of the public 
with food; that this public facility, Woolworth’s Eating 
Facilities is, along with others of a similar nature, perform­
ing a necessary service for the public, which in fact, would 
have to be provided by the state if W oolworth s Eating 
Facilities and other like facilities were all to withdraw 
said service; that having determined to offer said valuable 
service to the public, Woolworth’s Eating Facilities is 
required to provide such service in the manner of state 
operated facilities of a like nature, to-wit: That Wool­
worth’s Eating Facilities may not segregate or exclude 
defendant on the ground of race or color, in violation of 
the due process and equal protection clauses of the 14th 
Amendment of the United States Constitution.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Attorneys for Defendant.

[File endorsement omitted]

[fol. 8]
In t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircuit  

of A labama

Appealed from Recorder’s Court 
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

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

vs.
J essie  W a lker .

J udgm ent E ntry—October 10, 19G0
This the 10th day of October, 1960, came Win. C. Walker, 

who prosecutes for the City of Birmingham, and also came





245

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 mo­
tion being considered by the Court, it is ordered and ad­
judged 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
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 
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 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 
Birmingham, or to confess judgment with good and suffi­
cient 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 Jessie Walker, 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.





246

It is further considered hy the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of tin* 
[fol. 9] Law, that the defendant, the said Jessie Walker, 
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 fifty and 85/100 ($50.85) dol­
lars, 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-six and 85/100 ($46.85) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for sixty-three 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 
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 lltli 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.





247

I n t h e  C ircu it  Court of t h e  T e n t h  J udicial C ircuit 
of A labama

No. 20790

[fol. 10]

C ity  of B irm in g h a m , a Municipal Corporation, PlaintilT,
vs.

J essie W alker , Defendant.

M otion for a N ew  T rial— Filed October 11, 1960
Now comes the defendant, in the above styled cause and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the lltli day of October, 1960, and 
that this Honorable Court will grant the defendant a new 
trial, and as grounds for said motion sets out and assigns 
the following, separately and severally:

1. That the judgment of the Court in said case is con­
trary to the law.

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.



,



248

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The Court erred in overruling defendant’s demurrers 
filed in this cause.

11. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham, 
[fol. 11] Alabama, in that the laws or ordinances, under 
which this defendant was charged and convicted, and as 
applied to this defendant, constituted an abridgement of 
freedom of speech violative of rights and liberties secured 
to the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

13. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

15. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this cause.

16. That it appeared from the evidence that no owner 
of the premises involved had caused the arrest and prose­
cution of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, with­
out first having a complaint from such owner, or other 
person in charge of such premises.



■i



249

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owrner or other person in charge of the premises 
involved, or otherwise, having authority to do so, pro­
cured the arrest of the defendant or signed a complaint 
or swore out a warrant against the defendant for trespass 
on private property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bil­
lingsley, Jr., J. Richmond Pearson, Peter A. Hall, 
Attorneys for Defendant.

[fol. 12]
O rder O verruling

The foregoing Motion being presented in open court, 
this the 11th day of October, 1960; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.

It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge.

[File endorsement omitted]

Appeal Bond to the Court of Appeals of Alabama 
(omitted in printing).



'



250

[fol. 14]
I n  t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircu it  

of A labama

I n  and for J efferson  C ounty  

No. 20790

The C ity o f  B ir m in g h a m , a  Municipal Corporation,
versus

J esse W a lker .

Birmingham, Alabama

Transcript of Evidence—October 10, 1960
B e fo r e : Honorable George L. Bailes, Judge.

A ppearances :

For the City, Mr. Watts E. Davis.
For the Defendant, Messrs. A. D. Shores, Orzell Bil­

lingsley, Jr., Peter A. Hall, Oscar W. Adams, Jr., J. Rich­
mond Pearson.

[fol. 16] Proceedings
Mr. Davis: If Your Honor pleases, these are two cases 

that took place at Woolworth’s on the same date we had in 
the Davis and Gober cases.

Mr. Shores: Your Honor, we propose to file demurrers 
and motions to strike in these two cases and I guess the 
ruling will be the same and you will give us an exception.

Mr. Davis: If Your Honor pleases, that is agreeable 
with counsel.

Mr. Adams: Just a minute, Mr. Davis.
(Counsels confer)
Mr. Davis: Mr. Casey will you take the stand.





251

R ichard C. Casey, ca lled  a s  a  w itn ess , h a v in g  been  f irs t  
d u ly  sw o rn , te s tified  a s  fo llo w s:

Direct examination.

By Mr. Davis:
Q. Will you please state your full name?
A. Richard C. Casey.
Q. Mr. Casey, are you employed as a police officer with 

the City of Birmingham?
A. Yes, sir, I am.
Q. Were you so employed on March 31, 1960?
A. Yes, sir.
Q. On the morning of March 31, 1960 at or about 10:45 

a.m., did you have occasion to go to the Woolworth’s store?
A. Yes, sir, I did.
Q. Is that in the City of Birmingham?
A. Yes, sir.
Q. What part of the store did you go to?
A. I went to the lunch counter on the first floor.
Q. Did you observe anything unusual or out of the ordi­

nary on that occasion?
A. Yes, sir.

[fol. 17] Q. Tell the Court what you observed.
A. The lights were turned out over the lunch counter 

and there were two Negro males seated at the counter. 
Mrs. Evans was there waiting for the officer.

Q. Have you since learned who these two colored boys 
were?

A. Yes, sir.
Q. Was one of them Jesse Walker and the other Willie 

Willis?
A. Yes, sir.
Q. Do you see them in the Court here today?
A. Yes, sir.
Q. Can you point them out?
A. Walker and Willis, Walker to my right and Willis 

to my left.
Q. The two boys seated between counsel at the counsel 

table ?
A. Yes, sir.



I

'r



252

Q. Did you have any conversation with the boys your­
self!

A. No, sir, not at that time.
Q. Was anybody else or did anybody else have any con­

versation with them in your presence ?
A. Yes, sir.
Q. Who was that!
A. Mrs. Evans.
Q. What conversation did you hear between her and 

these two defendants!
A. She told the defendants that the lunch room was 

closed and they would have to leave.
Q. Did they leave!
A. After we placed them under arrest, yes, sir.
Mr. Davis: That is all.

Cross examination.

By Mr. Shores:
Q. Officer Evans, how did you happen to go to Wool- 

worth’s!
A. The name is Casey.
Q. Officer Casey.

[fol. 18] A. I received the call over the radio.
Q. You received the call over the radio?
A. Yes*sir.
Q. You were in a radio patrol car?
A. I was in the motor, 3-wheeled motor.
Q. From whom did you receive the call?
A. Dispatcher for the City of Birmingham Police De­

partment.
Q. You were instructed to go to Woolworth’s?
A. That is right.
Q. Whom did you first contact after you arrived at Wool- 

worth’s ?
A. Mrs. Evans. We went inmmediately to the lunch 

counter where we contacted Mrs. Evans.
Q. Was there a conversation between you and Mrs. 

Evans?
A. No other than the fact that she did state that she





253

had told the boys to leave, that the place was closed, and 
the second time she directed her conversation to the de­
fendants and told them it was closed and they would have 
to leave, she would not serve them.

Q. Was there anyone else seated at the lunch counter!
A. There was no one else there at all.
Q. Did Mrs. Evans instruct you to place the defendants 

under arrest ?
A. No.
Q. Did anyone ever make a complaint to you from the 

store ?
A. Other than Mrs. Evans, no.
Q. And she didn’t instruct you to arrest the boys?
A. No.
Q. Did anybody instruct you to arrest them?
A. At the time ?
Q. At the time.
A. No.
Q. In other words, did you take it upon yourself to 

make these arrests?
A. I did under authority of the City of Birmingham.
Q. What charge did you place? You say you did arrest 

[fol. 19] them under the authority of the City of Bir­
mingham ?

A. That is right.
Q. But not under any instructions from the store?
A. I took the complaint from Mrs. Evans that she wanted 

the boys out of the store, that the lunchroom was closed.
Q. In other words she stated to you that she wanted the 

•boys out of the store?
A. She told them that they would have to leave, yes.
Q. Did she say the store?
A. The lunch counter.
Q. She didn’t order them out of the store?
A. No, she said they would have to leave the lunch 

counter, it was closed.
Q. Do you know who Mrs. Evans is?
A. She is Manager or was Manager of the lunch counter.
Q. Do you know whether she is still employed there?
A. That I don’t.



-



254

Q. What charge did you place against them when you 
arrested them!

A. Trespassing after warning.
Q. Did you notify them at the time that that was the 

charge being placed against them?
A. I did, and later on a second time at the time we placed 

them in the car.
Q. Did anybody from Woohvorth’s ever make any com­

plaint that these boys were trespassing?
A. I couldn’t say. I don’t know.
Q. In other words you were not instructed by the store 

or anybody connected with the store to make an arrest?
Mr. Davis: If the Court pleases, we have been over this 

several times. I don’t know whether the answer is satis­
factory or not but it is repetition.

The Court: Let him answer.
A. As directly asking us to place them under arrest, no. 

[fol. 20] We told them they would have to come to head­
quarters or be contacted to sign a warrant.

Q. Did they ever sign a warrant ?
A. I couldn’t say that. I don’t know.
Mr. Shores: That is all.
Mr. Davis: That is all. The City rests, Your Honor.
Mr. Adams: I would like to file a motion to exclude the 

evidence in the case of Jesse Walker and I would like to 
make and place a written motion in the place of oral mo­
tion and include the same grounds as in Jesse Walker’s 
case, ,to exclude the evidence against Willie Willis also, 
and the grounds specified are the same grounds specified 
in the motions in the other two cases, that there is no evi­
dence that there was any disorderly conduct involved in 
the defendants sitting in the eating facilities at Wool- 
worth’s. The Statute as specified is unconstitutional both 
by State Statutes as well as Federal Statutes in that it 
doesn’t specify that the owner of the place or someone in 
charge of the place would make the warning, meaning that 
anybody could make the warning and the defendants would 
be in violation of the Statute. And it violates the defen­
dants’ constitutional right to assemble and peacefully



,



255

demonstrate for what they believe are their rights, and on 
the basis of the Statute and its application to the defen­
dants I think the evidence would not justify a conviction. 

The Court: Overruled.
Mr. Adams: We except.
Mr. Shores: All right, Jesse, take the stand.

J esse H. W alker , ca lled  a s  a  w itn e ss , h a v in g  been f irs t 
d u ly  sw orn , te s tified  a s  fo llo w s:

Direct examination.

By Mr. Shores:
Q. State you name?
A. Jesse H. Walker.

[fol. 21] Q. Jesse, on this occasion of March 31, did you 
go to Woolworth’s store?

A. I did.
Q. For what purpose did you go?
A. I went to make a purchase of handkerchiefs and birth­

day gift for a friend of mine and a birthday card and 
while there—

Mr. Davis: We object if that is the end of the purpose.
Q. While you were there did anybody accompany you?
A. I did meet a fellow in the store but I went to the 

store alone.
Q. Who did you meet in the store?
A. Willie Willis.
Q. Did Willis make a purchase?
A. He did.
Q. Where did you go after you made the purchase?
A. To the lunch counter.
Q. Did Willis accompany you to the lunch counter?
A. He did.
Q. You are a Negro, aren’t you?
A. I am.
Q. Did you make any order while you were at the lunch 

counter, did you order anything?
A. We didn’t get a chance to.





256

Q. Tell the Court just what happened after you seated 
yourselves at the lunch counter?

A. Well we sat down and waited for a waitress to serve 
us and one came up and said, “I ’m sorry I can’t serve you.” 
There were several waitresses behind the counter so we 
waited until another one came up and offered to serve us 
and that is all.

Q. Were you ever served?
A. We were never served.
Q. Did anybody come up and ask you to leave?
A. No one ever asked us to leave.
Q. Did this Mrs. Evans speak to you at all?

[fol. 22] A. Well I have never seen her until the night 
of the last trial was the first time I saw her.

Q. Well did anybody ask you to leave? Did anybody in 
connection with the store ask you to leave?

A. Not unless some of the policemen were connected with 
the store.

Q. Were any white persons seated at the lunch counter?
A. There were several.
Q. Were they eating?
A. They were.
Q. Were they being served?
A. They were being served until we came and then they 

began to close the counter and ordered these white people 
away and one refused to leave and then he was forced by 
the policeman to leave his seat. He was sitting directly 
next to us. Most of them remained until they were ordered 
away or finished their food.

1 Q. Do you know whether or not this white man that re­
mained was arrested?

A. He was not.
Mr. Davis: We object to that as incompetent, irrelevant 

and immaterial.
The Court: Well if he could know, all right.
Q. Did you see any white people arrested?
A. There were none arrested to my knowledge.
Q. Now did you see Officer Casey the officer that testified? 
A. I did.





257

Q. When did you first see him?
A. When we were taken to the patrol ear on the outside 

of the store. He was at the patrol car and he began to 
question us, asking our name and so on and at the time 
we asked him what we were charged with and he made 
statements to the effect we just had to do it and something 
of a similar nature.

Q. WTas he the officer that accosted you in the store?
A. No, he was not the officer that approached us in the 

[fol. 23] store. The officer that approached us in the store 
in my way of thinking probably was a superior officer be­
cause he had two bars on his shoulder, something similar 
to a Captain in the Army or Armed Services, and lie was 
the one that approached us and he asked us to leave and 
said in this respect, “Let’s go,” and I asked him whether 
or not we were under arrest and he said, “Yes, you are 
under arrest,” and before we could say anything else some­
one had grabbed us in back of the pants and was pushing 
us out of the store.

Q. Did he tell you at that time what you were being 
arrested for!

A. Well I didn’t get a chance to ask him.
Q. But you were told when you were placed in the patrol 

car?
A. I was told by Officer Casey. He was in the patrol car. 

I think that is his name, the officer that was on the stand 
preceding me.

Q. Were there any signs designating whether or not this 
lunch counter was for white or colored?

A. No, the only signs I could visualize or saw were signs 
more or less of an inviting nature, such as banana splits 
twenty-five cents, hamburgers, the price of the food that 
you were able to purchase at the counter. There were no 
signs designated any color or any special type of customers.

Q. Were you refused, did anybody refuse to sell you any­
thing at these other counters when you attempted to make 
other purchases?

Mr. Davis: We object to that as incompetent, irrelevant 
and immaterial.

The Court: That is all right, he can answer.





258

A. No, we were not refused at any of the other counters.
Mr. Shores: That is all.

Cross examination.

By Mr. Davis:
Q. You had been told to expect the arrest, hadn’t you!
A. No, sir.

[fol. 24] Q. The day prior to this occasion?
Mr. Pearson: Your Honor, we object as immaterial, ir­

relevant and outside of all of the issues.
The Court: He said he was not.
Q. Well you had been told to stay there until you were 

arrested?
A. I had not been told to stay there and I had not been 

told to be arrested.
Mr. Pearson: We object to that.
Q. What was the answer?
A. I had not been told to stay there nor had I been told 

to stay there until I was arrested.
Q. Why didn’t you leave when they told you to get out 

of the place or that you would not be served ?
A. Well 1 couldn’t leave. The officers had hold of me. If 

I had run probably they would have shot me.
Q. You say the waitress came up and told you you 

couldn’t be served and you sat there waiting for some 
other waitress to come up and serve you.

Mr. Pearson: If Your Honor pleases, we object. The 
witness has not testified to anything that counsel said. He 
said one waitress told him that she couldn’t serve him.

The Court: Well the record speaks for itself.
Mr. Pearson: But this is an argumentative method of 

cross-examination and wo object to that.
Q. I will ask you if I understood you correctly to say that 

a waitress came to your table and said, “I am sorry but I 
can’t serve you,” did you testify to that?

A. I said that a waitress came to where we were sitting





259

at the counter, and not the table, and said, “I am sorry 
I can’t serve you,” not “we” but “I ”.

Q. What did you take that to mean, that someone else 
was going to serve you!

A. I really expected service. I had been served prior to 
[fol. 25] coming to the counter.

Q. You didn’t expect that the day before when you all 
were at Shuttlesworth’s house?

A. Are you referring to more than one?
Q. Were you present at Shuttlesworth’s house with the 

other defendant on the day before?
A. When you say the other—who are you referring to?
Mr. Hall: If Your Honor pleases, we object to bringing 

anybody else into this. Jesse Walker is charged under the 
count here of trespass after warning and no others are 
involved and any question as to others not before the Court 
at this time is irrelevant and immaterial.

The Court: Leave it out.
Q. Hid you meet with a group of other defendants on 

March 30 at Reverend Shuttlesworth’s?
Mr. Hall: If Your Honor pleases, we object. Jesse 

Walker is charged with an offense cognizable under the 
laws of the City of Birmingham and no others involved. 
He has admitted he was at the place.

The Court: Let him answer.
Mr. Hall: We take an exception.
A. I did not meet with any group of boys at any other 

place.
Q. You were present this morning when Gober and Davis 

testified that there was a meeting. You were not at that 
meeting?

Mr. Hall: Your Honor, we are going to object to that. 
He is going into another case which we have tried for 
purpose of impeachment.

Q. I withdraw the question and ask you this. Did you 
at any time meet with Reverend Shuttlesworth, Reverend 
Billups and in the same room during the discussion were 
James A. Davis, Roy Hutchinson, R. L. Parker and others?





260

Mr. Hall: If Your Honor pleases, we object to any ques­
tions about a meeting. We don’t see where it is material, 
Your Honor, under the charge and under the prosecution, 
[fol. 26] under the facts, any meeting is immaterial to the 
issues involved here. The only question is did this man 
go on somebody else’s premises and remain there after 
he was told to leave, and if he did whether or not he was 
justified in doing it under the law and under our Constitu­
tion. No meeting has any material bearing on the issues 
here.

Mr. Davis: If the Court pleases I might be able to re­
solve the question. This witness has testified that he did 
not expect to be arrested. Supposedly at a meeting on a 
day prior they were told they would be arrested and I 
just want to know his story. I think it is within the proper 
scope of cross-examination.

Mr. Hall: If Your Honor pleases if this man is guilty 
of an infraction of the law whether or not he expected to 
be arrested would be immaterial, as ignorance of the law 
wmuld be no excuse. Whether he was told to go or not 
told to go is not material to the issues here, relating to 
something outside of the issues involved in this case of 
the City of Birmingham against Jesse Walker. The only 
thing involved is whether he went to Woolworth’s and 
stayed there after they closed the counter and refused to 
leave when the lady told him to leave, and if she had the 
authority to tell him to leave, and if in doing that he is 
guilty of a crime. No meeting is material.

The Court: Sustain the objection.
Q. How many officers came into the store?
A. In number?
Q. Yes.
A. There were at least I would say ten. I do not know 

the exact or definite number.
Q. Now you say Officer Casey was not one of the ten 

that came in?
A. I said I did not see Officer Casey or he did not come 

in contact with me personally until I had left the store 
and was on the outside in a patrol car.

Q. Well as I understand it you don’t know whether





261

[fol. 27] Officer Casey was inside talking to Mrs. Evans 
or not!

A. There is a possibility he could have been somewhere 
in the store talking to Mrs. Evans.

Mr. Davis: That is all.
Mr. Shores: That is all. Thank you. That is our case, 

Your Honor, we rest.
The Court: Are you going to defer summations until 

later?
Mr. Shores: Yes, sir.

[fol. 28] Transcript of Sentencing (omitted in printing).
[fol. 33] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 35]
I n t h e  C ourt of A ppeals  of A labama

J esse W alker , Appellant, 
vs.

T h e  C ity  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceedings, 
had and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns each of the following separately 
and severally:

1. The Court erred in overruling Appellant’s motion to 
Strike the Complaint filed in this cause, to which ruling 
the Appellant took exceptions. (Tr. 2, 3, 8 & 16)

2. The Court erred in overruling Appellant’s Demurrers 
filed in this cause, to which the Appellant took exceptions. 
(Tr. 3, 4, 8 & 16)





262

3. The Court erred in overruling the Appellant’s Mo­
tion to Exclude the Evidence filed in this case, to which 
ruling Appellant took exceptions. (Tr. 5, 7, 8 & 20)

4. The Court erred in overruling Appellant’s motion 
for a New' Trial. (Tr. 9, 10, 11 & 32)

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Certificate of Service (omitted in printing).

[fol. 36]
I n t h e  C ourt of A ppea ls  of t h e  S tate of A labama

..................  J udicial D epa rtm en t

October Term, 1960-61
6 Div. 803

J essie  W alker ,

v.
C ity  of B ir m in g h a m .

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January 30, 1961 
Transcript Filed

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

cause for decision.

Order of A ffirmance— 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



.



263

Circuit 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.

[fol. 37] Application for Rehearing and Order Overruling 
(omitted in printing).

[fol. 37a] Proceedings on Petition for Certiorari (omitted 
in printing).

[fol. 38] [File endorsement omitted]

I n t h e  S u pr em e  Court op A labama 

No. 759 Sixth Division
Ex Parte : J esse H. W alker

J esse II. W a lker , Appellant, 
vs.

C ity  of B ir m in g h a m , Appellee.

P etitio n  for C ertiorari— Filed July 3, 1961 
[fol. 39]
To the Honorable Chief Justice and Associate Justices of 

the Supreme Court of Alabama
1. Comes the Appellant, by and through his Attorneys, 

Arthur D. Shores, Peter A. Ilall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J. Richmond Pearson, and 
respectfully petitions this Honorable Court to review, re­
vise, reverse and hold for naught that certain Judgment 
of the Court of Appeals, on to-wit: May 30, 1961, wherein 
Jesse II. Walker was Appellant and the City of Binning-





264

ham was Appellee, which Judgment affirms the Judgment 
of the Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a Rehearing of said Cause and Brief in 
support thereof were duly filed by your petitioner within 
the time required by law, and that said application for 
rehearing was overruled by said Court of Appeals on the 
20th day of June, 1961.

3. Your petitioner respectfully shows unto the Court 
that the cause arose from a complaint filed by the City 
of Birmingham, charging your petitioner with violating 
Section 1436 of the General City Code of Birmingham 1944, 
viz:

“Any person who enters into the dwelling house or 
goes or remains on the premises of another, after be­
ing warned not to do so, shall on conviction, be pun­
ished as provided in Section 4, provided that this 
Section shall not apply to police officers in Discharge 
of official duties.”

[fol. 40] 4. Your petitioner filed a Motion to Quash the
Complaint and Demurrers to the Complaint, on grounds 
that the Complaint was so vague and indefinite as not 
to apprise the Appellant of what he was called upon to 
defend, and further, that the ordinance which formed the 
basis of the prosecution, as applied to appellant, consti- 

‘ tuted an abridgement of the privileges and immunities 
guaranteed by the Constitution of the United States and 
that the ordinance was unconstitutional on its face.

5. The Court overruled the Motion to Quash and the 
Demurrers, whereupon petitioner was tried without a jury, 
and was found guilty of Trespass after Warning, and fined 
One Hundred ($100.00) Dollars and costs, and sentenced 
to a term of Thirty (30) days of hard labor for the City of 
Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence, at the close of the City’s case, which Motion was 
denied. After Judgment and sentence, Petitioner filed a





265

Motion for a New Trial, which Motion was denied, and 
petitioner perfected his appeal.

7. Your petitioner further shows unto your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause, upon the opinion judg­
ment rendered in the case of James Gober vs. City of 
Birmingham, Sixth Division—797, decided May 30, 1961, 
which case had a different factual situation from peti­
tioner’s case; and there was a different Proposition of Law 
involved in petitioner’s case, not involved in case of Gober 
vs. City of Birmingham.

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:

A. That the Ordinance and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in viola­
tion of the Fourteenth Amendment to the United States 
Constitution.
[fol. 41] B. That the Ordinance and Complaint, the basis 
of the Prosecution, as applied to petitioner, a Negro Citizen 
of the State of Alabama and of the United States, consti­
tute an abridgement of his privileges and immunities, and a 
denial of the equal protection of the Laws, all in violation 
of the Fourteenth Amendment to the United States Con­
stitution.

C. That to warrant conviction commission of a viola­
tion of the ordinance must be clearly proved.

The Court of Appeals erred in failing to rule that the 
Conviction of petitioner was a violation of due process of 
law, and abridgement of his privileges and immunities and 
a denial of equal protection of the law, all in violation of 
the Laws and Constitution of Alabama and the Fourteenth 
Amendment to the Constitution of the United States.

The Court of Appeals erred in failing to rule that to war­
rant a conviction, the evidence must clearly show a viola­
tion of the ordinance involved.





2 6 6

Wherefore, your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the Seal 
of this Court directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete Transcript of Record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that 
this cause my be reviewed and determined by this Honor­
able Court, as provided by law and the rules and practice 
of this Court, and that this Court thereupon proceed to 
review and correct the errors complained of and to reverse 
the Judgment of the Court of Appeals or render such 
Judgment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi­
cate of Affirmance of said cause, during the pendency of 
this petition.
[fol. 42] And petitioner prays for such other, further and 
additional relief in the premises, as to this Court may seem 
appropriate, and to which he may be entitled, and your 
petitioner will ever pray.

Respectfully submitted,
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
By Peter A. Hall, Attorneys for Appellant.

D u ly  s w o r n  to by  P e t e r  A .  Hal l ,  ju r a t  o m i t t e d  in p r in t ­
ing.

Certificate of Service (omitted in printing).

[fol. 43] Order Denying Petition for Writ of Certiorari 
(omitted in printing).

[fol. 44] Application for Rehearing (omitted in printing).

[fol. 45] Order Overruling Application for Rehearing 
(omitted in printing).
[fol. 46] Clerks’ Certificates to foregoing transcript 
(omitted in printing).





267

[fol. 1]
I k  t h e  C ircuit C ourt of t h e  T e k th  J udicial C ircuit 

of A labama ik  and for J efferson  County

No. 20793

T h e  C ity  of B irm in g h a m , 

vs.

W il l ie  J. W il l is .

A ppea l  B ond (o m itte d  in  p r in tin g )

[fo l. 2]
I n  t h e  C ircuit C ourt of t h e  T e n t h  J udicial C ircuit 

of A labama

No. 20793

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

W ill ie  J. W ill is , Defendant.

C om plaint— Filed October 10, I960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that Willie J. Willis, 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 F. W. Woolworth Co., 219 North 
19th Street, 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.

Watts E. Davis, Attorney for City of Birmingham.

[File endorsement omitted]



.



268

I n  t h e  C ircu it  C ourt of t h e  T e n t h  J udicial C ircu it
of A labama

No. 20793

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

vs.
W il l ie  J .  W il l is .

M otion to S t r ik e— Filed October 10, 1960
Comes now Willie J. Willis, defendant in this cause, and 

moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sepa­
rately and severally:

1. That the complaint, affidavit, etc., is not sworn to.
2. That the allegations of the said complaint are so 

vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinance or statute upon which is founded 
the complaint in this cause, as applied to this defendant, as 
[fol. 3] a citizen of the State of Alabama, and of the 
United States, constitutes an abridgment of the freedom of 
assembly, speech and liberties secured to the Defendant, 
by the Constitution and laws of the State of Alabama and 
the Fourteenth Amendment of the Constitution of the 
United States of America.

4. That the said ordinance or statute which is the basis 
for the affidavit, information or complaint in this cause, as 
applied to the defendant, constitutes and abridgment of 
privileges and immunities guaranteed defendant, as a citi­
zen of the United States, in violation of the Constitution 
and laws of the State of Alabama, and of the Fourteenth 
Amendment of the United States Constitution.

5. That Section 824 of the General City Code of the City 
of Birmingham, as applied to this defendant, a Negro citi-





269

zen of the United States, constitutes a denial of due process 
and equal protection of law, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this Court.

Arthur D. Shores, J. Richmond Pearson, Orzell Bill­
ingsley, Jr., Peter A. Hall, Oscar W. Adams, Jr., 
Attorneys for Defendant.

I n  t h e  C ircuit  C ourt of t h e  T e n t h  J udicial C ircu it  
of A labama

No. 20793

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

vs.
W il l ie  J .  W il l is .

D emurrers—Filed October 10,1960
Comes now Willie J. Willis, defendant in this cause, and 

demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
[fol. 4] offense under the Constitution and laws of the 
State of Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.





270

4. That the ordinance, Section 1436 of the 1944 General 
City Code of Birmingham, Alabama, as applied to this de­
fendant, is invalid in that it violates Section 4, Article 1, 
of the Constitution of Alabama, and the First and Four­
teenth Amendments to the Constitution of the United 
States of America.

5. That Section 1436 of the 1944 General City Code of 
Birmingham, Alabama, which supports the complaint, affi­
davit or information in this cause, as applied to this de­
fendant, a citizen of the State of Alabama and of the United 
States, constitutes an abridgment of freedom of speech 
and assembly violative of rights and liberties secured the 
defendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

6. That the aforesaid ordinance as applied to defendant, 
in (sic) unconstitutional on its face in that it is so vague as 
to constitute a deprivation of liberty without due process of 
law in violation of the provisions of the Fourteenth Amend­
ment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitutes an abridgment of privi­
leges and immunities guaranteed defendant as a citizen of 
the United States, in violation of the Fourteenth Amend­
ment to the United States Constitution.

8. That the said Ordinance, as applied to defendant, con­
stitutes a denial of equal protection of the laws in violation

1 of the Fourteenth Amendment to the Constitution of the 
United States of America.

Arthur D. Shores, Orzell Billingsley, Jr., J. Rich­
mond Pearson, Peter A. Hall, Oscar W. Adams, Jr., 
Attorneys for Defendant.

[File endorsement omitted]



.



271

[fol. 5]
I n t h e  C ircuit  Court of t h e  T e n t h  J udicial C ircuit 

of A labama

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

vs.
W il l ie  J .  W il l is .

Appealed from Recorder’s Court 
(Trespass After Warning)

Honorable Geo. Lewis Bailes, Judge Presiding

J udgment E ntry—October 10, I960
This the 10th day of October, 19G0, came Win. C. Walker, 

who proseutes 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, and 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 
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 makes oral motion to exclude the evi­
dence, 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; and on this the 11th day of October, 
19G0, the Court finds the defendant guilty as charged in the 
Complaint and thereupon assessed a fine of One Hundred





272

($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 suffi­
cient 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 Willie J. Willis, 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 se­
curity therefor.
[fol. 6] 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 Willie J. Willis, 
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 fifty-one ($51.00) 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, leav­
ing forty-seven ($47.00) dollars taxable for sentence, it is 
ordered by the Court that said defendant perform addi­
tional hard labor for the County for sixty-three 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 re­
turn 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, 19G0, 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





273

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.

[fol. 7]
I n t h e  C ircu it  C ourt of t h e  

T e n t h  J udicial C ircuit  of A labama

No. 20783

C ity  of B ir m in g h a m , a Municipal Corporation, Plaintiff,
vs.

W il l ie  J. W il l is , Defendant.

M otion for a N ew  T rial— Filed October 11, 1960
Now comes the defendant, in the above styled cause and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judg­
ment rendered on to-wit, the 11th day of October, 1960, 
and that this Honorable Court will grant the defendant a 
new trial, and as grounds for said motion sets out and 
assigns the following, separately and severally:

1. That the judgment of the Court in said case is con­
trary to the law.

2. For that the judgment of the Court is contrary to 
the facts.



'



274

3. For that the judgment of the Court is contrary to 
the law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in overruling objections, by 

the defendant to the introduction of evidence offered on 
behalf of the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. The Court erred in overruling defendant’s demurrers 
filed in this cause.

11. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

12. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham, 
[fol. 8] Alabama, in that the laws or ordinances, under 
which this defendant was charged and convicted, and as 
applied to this defendant, constituted an abridgement of 
freedom of speech violative of rights and liberties secured 
to the defendant by the First and Fourteenth Amendments 
to the Constitution of the United States of America.

13. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tided, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

14. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming-

\





275

ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
Amendment to the United States Constitution.

15. The Court erred in overruling defendant's Motion 
to exclude the evidence in this cause.

16. That it appeared from the evidence that no owner 
of the premises involved had caused the arrest and prosecu­
tion of the defendant, but that such arrest was procured by 
the officials of the City of Birmingham, Alabama, without 
first having a complaint from such owner, or other person 
in charge of such premises.

17. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

18. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, pro­
cured the arrest of the defendant or signed a complaint or 
swore out a warrant against the defendant for trespass 
on private property.

19. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in said store.

Oscar W. Adams, Jr., Arthur D. Shores, Orzell Bill- 
[fol. 9] ingsley, Jr., Peter A. Hall, J. Richmond 
Pearson, Attorneys for Defendant.

Order O verruling

The foregoing Motion being presented in open Court, 
this the 11th day of October, I960; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.





276

It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

Geo. Lewis Bailes, Circuit Judge. 

[File endorsement omitted.]

Appeal Bond to Court of Appeals (omitted in printing).

[fol. 11]
T ranscript of E videncf.—October 10, I960 

(omitted in printing.)

C o u n sel’s N ote R e R ecord

The parties stipulate that the trial transcript in the 
Willis case is identical to that in the Walker case.

[fol. 25] Transcript of Sentencing (omitted in printing).
[fol. 30] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 32]
I n t h e  C ourt of A ppea ls  of A labama

W ill ie  W il l is , Appellant, 
vs.

T i ie  C ity  of B ir m in g h a m , Appellee.

A ssig n m en t  of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the Record of the proceeding, had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error, assigns each of the following separately 
and severally:





277

1. The Court erred in overruling Appellant’s Motion to 
Strike the Complaint filed in this cause, to which ruling the 
Appellant took exceptions. (Tr. 2, 3, 5, & 13)

2. The Court erred in overruling the Appellant’s De­
murrers filed in this cause, to which the Appellant took 
exceptions^ (Tr. 3,4, 5 & 13)

3. The Court erred in overruling the Appellant’s Motion 
to Exclude the Evidence filed in this cause, to which ruling 
Appellant took exceptions. (Tr. 5 & 17)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr.6,9&29)

Oscar W. Adams, Jr., Arthur D. Shores, J. Richmond 
Pearson, Peter A. Hall, Orzell Billingsley, Jr., 
Attorneys for Appellant.

Certificate of Service (omitted in printing).

[fol. 33]
I n t h e  C ourt of A ppeals of t h e  S tate of A labama

............. J udicial D epartm ent

October Term, 1960-61
6 Div. 806

W il l ie  J .  W illis  

v.
C ity  of B irm in gh a m  

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January 30,1961 
Transcript Filed

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

this cause for decision.





278

O rder of A ffirm a n ce— 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, 
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.

[fol. 34] Application for Rehearing and Order Overruling 
(omitted in printing).

[fol. 34a] Proceedings on Petition for Certiorari (omitted 
in printing).

[fo l. 35] P etitio n  for C ertiorari (o m itte d  in  p r in t in g ) .

C o u n sel’s N ote R e R ecord

The parties stipulate that the petition filed in the Ala­
bama Supreme Court in the Willis case is identical to that 
filed in the Walker case.

[fol. 39] Order Denying Petition for Certiorari (omitted 
in printing).

[fol. 40] Application for Rehearing (omitted in printing).
[fol. 41] Order Overruling Application for Rehearing 
(omitted in printing).
[fol. 42] Clerks’ Certificates to foregoing transcript 
(omitted in printing).





279

[fol. 44]
S u pr em e  C ourt of t h e  U nited  S tates 

No. 694, October Term, 1961

J ames G ober, et al., Petitioners, 
vs.

C ity  of B irm in g h a m .

O rder A llow ing  C ertiorari— June 25,1962
The petition herein for a writ of certiorari to the Court 

of Appeals of the State of Alabama is granted, and the 
case is transferred to the summary calendar. The case is 
set for argument to follow No. 638.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though tiled in 
response to such writ.

Mr. Justice Frankfurter took no part in the consideration 
or decision of this petition.

[fol. 45]
I n  t h e  S u pr em e  C ourt of t h e  U nited  S tates 

October Term, 1962 
No. 66

J ames G ober, et al., Petitioners,
v .

C ity  of B ir m in g h a m , Respondent.

S tipu latio n  as to P rin tin g  of t h e  R ecord—
Filed July 17,1962

The parties to the above-entitled cause hereby stipulate 
that the following parts of the record should be printed by





280

the Clerk of the Supreme Court and the following nota­
tions as to identical items may be noted by the Clerk to 
avoid unnecessary duplication in printing:

1. Print the entire record of the proceedings in the Ala­
bama courts in the case of J a m e s  G o b e r  v.  C i t y  o f  B i r m i n g ­
ham.

2. It is hereby stipulated between the parties that the 
Clerk may cause the following notations to be printed in 
appropriate places in printing the record in the G o b er  case:

a. The appeal bond in the Circuit Court printed in the 
Gober  case is identical to the appeal bonds in the cases 
of the other 9 petitioners except for the names and ad­
dresses of the petitioners involved.

b. The appeal bond to the Alabama Court of Appeals, 
printed in the G ober  case, is identical to the appeal bonds 
in the cases of the other 9 petitioners except for the names 
and addresses of the petitioners.
[fol. 46] c. The transcript of the sentencing of the peti­
tioners as printed in the Gober  record, pp. 50-52 (note that 
in this portion of the Gober  record some pages are not 
numbered), appears in identical form in each of the 10 
cases.

d. The application for rehearing in the Alabama Court 
of Appeals and that Court’s order overruling the applica­
tion in the Gober  record, p. 66, is identical to the similar 
applications and orders filed in the other 9 cases except 
for the captions.

e. The unnumbered page following page 75 in the Gober  
record which lists the proceedings in the Supreme Court 
of Alabama on the petition for certiorari and gives the 
dates of rulings, etc., is identical to the corresponding page 
in the records pertaining to the other 9 petitioners except 
for the captions.

f. The order of the Supreme Court of Alabama denying 
the writ of certiorari in the G ober  record, p. 72, is iden­
tical to those in the records pertaining to the other 9 peti­
tioners except for the captions.



'



281

g. The application for rehearing of the denial of the 
writ of certiorari, printed in the Gober  record at p. 73, is 
identical to that appearing in the records pertaining to the 
other 9 petitioners except for the captions.

h. The order of the Supreme Court of Alabama over­
ruling the application for rehearing in the Gober  record at 
p. 74 is identical to the corresponding orders in the records 
pertaining to the other 9 petitioners except for the captions.

3. Print the entire record of the proceedings in the 
Alabama courts in the case of J a m e s  A lb er t  D a v i s  v. C i t y  
of  B irm in g h a m ,  except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
[fol. 47] b. The transcript of the trial in the D a v i s  case, 
pp. 16 through 50 may be omitted. (The Clerk will please 
print a notation to the effect that the parties stipulate that 
the trial transcript in the D a v is  case is identical to that 
in the Gob er  case.)

4. Print the entire record of the proceedings in the
Alabama courts in the case of R o y  Hutchinson v.  C i t y  of  
B irm ingham ,  except that the following items may be
omitted:

a. The items listed in paragraph 2a through 2h above.
5. Print the entire record of the proceedings in the

Alabama courts in the case of R o b er t  J .  K i n g  v. C i t y  of  
B irm ingham ,  except that the following items may be
omitted:

a. The items listed in paragraph 2a through 2h above.
b. The trial transcript, pp. 16 through 33. (The Clerk 

will please print a notation to the effect that the parties 
stipulate that the trial transcript in the K i n g  case is iden­
tical to that in the Hutchinson case.)

c. The petition for a writ of certiorari .filed in the Su­
preme Court of Alabama may be omitted. (The Clerk will 
please print a notation to the effect that the parties stipu­
late that the petition filed in the Alabama Supreme Court





282

in the K i n g  case is identical to that filed in the Hutchinson  
case.)

6. Print the entire record of the proceedings in the 
Alabama courts in the case of R o b er t  P a r k e r  v. C i t y  of  
B irm ing ha m ,  except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
7. Print the entire record of the proceedings in the 

Alabama courts in the case of 11 i ll iam W e s t  v. C i t y  o f  
B irm ing ha m ,  except that the following items may he 
omitted:

a. The items listed in paragraph 2a through 2h above.
b. The trial transcript in the IPesf case, pp. 13 through 

[fol. 48] 32, may be omitted. (The Clerk will please print 
a notation to the effect that the parties stipulate that the 
transcript of the trial proceedings in the W e s t  case is iden­
tical to the transcript in the P a r k e r  case.)

c. The petition for a writ of certiorari filed in the Su­
preme Court of Alabama may be omitted. (The Clerk will 
please print a notation that the parties stipulate that the 
petition filed in the Alabama Supreme Court in the W e s t  
case is identical to that filed in the P a r k e r  case.)

8. Print the entire record of the proceedings in the 
Alabama courts in the case of R o b e r t  I k  S a n d e r s  v. C i t y  of  
Birm in g h a m ,  except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
9. Print the entire record of the proceedings in the 

Alabama courts in the case of R o o seve l t  W e s t m o r e l a n d  v. 
C i t y  of  B i rm ingham ,  except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
b. The trial transcript, pp. 13 through 24, may be omit­

ted. (The Clerk will please print a notation that the 
parties stipulate that the trial transcript in the W e s t ­
m ore land  case is identical to that in the S a n d e r s  case.)





283

c. The petition for a writ of certiorari filed in the Su­
preme Court of Alabama may be omitted. (The Clerk will 
please make a notation that the parties stipulate that the 
petition filed in the Alabama Supreme Court in the JFest- 
moreland case is identical to that filed in the Sanders case.)

10. Print the entire record of the proceedings in the 
Alabama courts in the case of Jessie Walker v. City of 
Birmingham, except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
[fol. 49] 11. Print the entire record of the proceedings
in the Alabama courts in the case of Willie J. Willis v. 
City of Birmingham, except that the following items may be 
omitted:

a. The items listed in paragraph 2a through 2h above.
b. The trial transcript, pp. 13 through 24, may be omit­

ted. (The Clerk will please print a notation to the effect 
that the parties stipulate that the trial transcript in the 
Willis case is identical to that in the Walker case.)

c. The petition for a writ of certiorari filed in the Su­
preme Court of Alabama may be omitted. (The Clerk will 
please make a notation that the parties stipulate that the 
petition filed in the Alabama Supreme Court in the Willis 
case is identical to that filed in the Walker case.)

12. Print this stipulation.
Jack Greenberg, James M. Nabrit, III, Attorneys for 

Petitioners.
Watts E. Davis, Earl McBee, Attorneys for Respon­

dents.





In  The

Supreme Court of the United States

October Term , 1961

No. 287

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICH EL PROCTOR, CECIL T. WASHINGTON, 

JR., and GWENDOLINE GREENE,
Petitioners,

v.

STATE OF MARYLAND,
Respondent.

On  P etition for W rit of Certiorari to the 
Court of Appeals of Maryland

BRIEF IN OPPOSITION

Thomas B. F inan ,
Attorney General,

Clayton A. D ietrich, 
Assistant Attorney General, 

1201 Mathieson Building, 
Baltimore 2, Maryland,

For Respondent.

The Daily Record Co., Baltimore 3, Md.



.



I N D E X

Table of Contents

PAGE
Opinion  B elow 1

J urisdiction ...................................................................   2

Question P resented 2

S tatement 2

A rgument :

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

Conclusion 9

Table of Citations 

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 (Ohio) 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





PAGE
Griffin & Greene v. State, 225 Md. 422, 171 A. 2d 717 1
Horn v. Illinois Central Railroad, 64 N.E. 2d 574

(Illinois) ..............................................   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

Amendment............................................................  9

Miscellaneous
28 U.S.C.A., Section 1257 (3) ........................................  2
U. S. S. Ct. Rules, Revised Rule 1 9 ..............................  2

Index to Appendix

Testimony:
Francis J. Collins—

Direct ................................................ ,............. 1
Cross ................................................................  1
Redirect ................................................. 2

11



.



PAGE
Abram Baker—

Cross ...............................................................  3
Redirect ..........................................................  3
Recross ............................................................ 3

Kay Freeman—
Direct .............................................................. 4
Cross ..................................................,............  4
Examination by the C ourt............................  5

I ll





In The

Supreme Court of the United States

October Term , 1961

No. 287

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T. WASHINGTON, 
i JR., and GWENDOLYNE GREENE,

Petitioners,

v.

STATE OF MARYLAND,
Respondent.

On P etition for W rit of Certiorari to the 
Court of A ppeals of Maryland

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, 1960. 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 Mot .un to Dismiss or Affirm in Dale
H. Drews v. State o/ 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 Boy nton 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 seem:; 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 below7 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 encouragpd.

The Petitioners, in order to supply an air of uniqueness 
to their position, have somewhat distorted the evidence in 
the case in the tidal 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





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. Rodriguez, 182
S.W. 2d 824, 825 (Texas); Younger v. Judah, 19 S.W. 1109, 
1111 (Missouri); Goff v. Savage, 210 P. 374 (Washington);





9

D e  L a  Y s la  v .  P u b l ix  T h ea tres  C orpora tion ,  26 P. 2d 818, 
820 (Utah); H orn v . I llinois C en tra l  R ailroad , 64 N.E. 2d 
574, 578 (Illinois); C o lem a n  v . M id d les ta ff , 305 P. 2d 1020, 
1022 (California); F le tch er  v .  C o n ey  Island, 136 N.E. 2d 
344, 350 (Ohio); A lp a u g h  v :  W o lv e r to n ,  36 S.E. 2d 906, 908 
(Virginia); G re e n fe ld  v .  M a ry la n d  J o c k e y  C lub , 190 Md. 
96, 102; G o o d  C it ize n s  A ssoc , v .  B oard ,  217 Md. 129, 131; 
D r e w s  v . S ta te ,  224 Md. 186, 191, 193, 194; S lack  v. A t la n t ic  
W h ite  T o w e r  S y s te m ,  Inc., 181 F. Supp. 124, 127; and 
W il l ia m s  v .  H o w a rd  J oh n son ’s R es ta u ra n t,  268 F. 2d 845 
(4th Circuit).

This Court has used language consistent in T erm in a l  
T a x ica b  Co. v .  K u tz ,  241 U.S. 252, 256, and B o yn to n  v.  
V irg in ia ,  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 

cannot be convicted of trespass if the private owner’s ex­
clusion is based on racial discrimination. This same propo­
sition 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 ~r 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.

This petition for a writ of certiorari is premature as 
an abstract proposition and this Honorable Court has con­
sistently recognized that the essence of this complaint does 
not involve a substantial federal question. This petition 
should be denied.

Respectfully submitted,

Thomas B. F inan,
Attorney General,

Clayton A. D ietrich,
Assistant Attorney General, 

1201 Mathieson Building, 
Baltimore 2, Maryland,

For Respondent.



.



A px . i

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 px . 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

* * * * * *





A p x . 3

(T. 7.6):
CROSS EXAMINATION

By Mr. Duncan:
*  *  *  • *  *  *

(T. 85):
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?

(Mr. 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. 96):

REDIRECT EXAMINATION
By Mr. McAuliffe:

* * * * * *

(T. 97):
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.

* * * * * *



.



A p x . 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 law, 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 px . 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 parks 
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.

* * * * * *
(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.

* * * * * *

s





TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 26

WILLIAM L. GRIFFIN, ET AL., PETITIONERS,

vs.

MARYLAND.

t

ON WKIT OF CERTIORARI TO TRIE COURT OF APPEALS 
OF THE STATE OF MARYLAND

PETITION FOR CERTIORARI FILED AUGUST 4, 1961 
CERTIORARI GRANTED JUNE 23, 1962



.



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 26

WILLIAM L. GRIFFIN, ET AL., PETITIONERS,
vs.

MARYLAND.

O N  W R I T  O F  C E R T IO R A R I T O  T H E  C O U R T  O F  A P P E A L S  

O F  T H E  S T A T E  O F  M A R Y L A N D

I N D E X
O r ig in a l P r in t

Record from the Circuit Court for Montgomery 
County, State of Maryland
Application for warrant by police officer against

William L. Griffin________________________  A A
State warrant against "William L. Griffin ______• C B
Amended state warrant against William L.

Griffin___________________________________  E C
Docket entries in the People’s Court of Mont­

gomery County, Maryland, at Bethesda _____ G D
Docket entries in No. 3881 (Criminal) ________ I E
Transcript of hearing of September 12, 1960 .....  1 1

Appearances _____________________________  1 1
Colloquy_________________________________ 2 1
Opening statement by Mr. McAuliffe ________ 3 2
Motion to dismiss the warrants and overruling

thereof ________________________________  6 4
Testimony of Francis J. Collins—

direct ________________ 6 7
c r o s s _________________ 21 14
redirect ______________ 42 29
recross _______________ 49 34

Record P ress, P rinters, New Ycrk, N. Y., J uly 30, 1962





11 INDEX

Original Print
Record from the Circuit Court for Montgomery 

County, State of Maryland—Continued 
Transcript of hearing of September 12, 1960—

Continued
Testimony of Abram Baker—

d irect________________  67 35
cross_________________  80 36

Examination by court ________  96 48
redirect----------------------  96 49
recross________________ 98 50
re-redirect ___________ 100 51

Francis J. Collins—
(recalled)—

d irect________________  101 52
cross_______________  102 53

Leonard Woronoff—
d irect______________  102 53
cross_________________  104 55

State rests------------------------------------------  105 55
Motion to quash the warrants of arrest, etc.,

and statement thereon ---------------------------  105 55
Denial of motion for a directed verdict ..............  109 58
Testimony of Kay Freeman—

direct ______________  110 59
Examination by court ______  112 61

cross_________________  113 61
. Examination by court ------------  117 64

cross--------------------------  117 64
redirect ______________  124 68

Examination by court ................  125 69
Judge Pugh’s oral opinion .....................   130 72

Reporter’s certificate (omitted in printing) -------- 136 75
Proceedings in the Court of Appeals of Maryland 137 76
Opinion, Hornay, J---- --------------------------    137 76
Judgment --------------------------------------------------- 148 84
Order allowing certiorari .......................................  149 84



-4



[fol. A] [File endorsement omitted]

A pplica tio n  for W arrant by P olice Offic e r—
Filed August 4, 1960

State of Maryland, Montgomery County:
Francis J. Collins, being first duly sworn, on oath doth 

depose and say: That lie is a member of the Montgomery 
deputy sheriff
Gounty Police Department and as such, on the 30th day 
of June, 1960, at about the hour of 8:45 P.M. he did ob­
serve the defendant William L. Griffin in Glen Echo Park 
which is private property on order of Kebar Inc. owners 
of Glen Echo Park the def. was asked to leave the park" 
and after giving him reasonable time to comply the def. re­
fused to leave he was placed under arrest for trespassing

your affiant further makes oath that he has personal knowl­
edge of additional facts and evidence which are not in­
corporated in this affidavit, but which have been discussed 
before and given to the Justice of the Peace before whom 
the request for issuance of a warrant was made.

Whereas, Francis J. Collins doth further depose and 
say that he, as a member of the Montgomery County Police
Department believes that ................................. is violating
Sec. 577 Article 27 of the Annotated Code of Maryland.

Francis J. Collins
Subscribed and sworn to before me, in Montgomery 

County, State of Maryland, th is .......... day of Jun 30 1960.
Edward W. Cashman, Justice of the Peace for 

Montgomery County, Maryland.





B

[fol. B] No. 3881 Crim.

[fol. C] [File endorsement omitted]

S t a t e  W a r r a n t —Filed August 4, 1960 
State of Maryland, Montgomery County, to wit:

To James S McAuliffe, Supt. of Police of said County, 
Greeting:

Whereas, Complaint hath been made upon the informa­
tion and oath of Lt Collins Deputy Sheriff in and for 
Glen Echo Park (KEBAR), who charges William L Griffin 
late of the County and State on the 30th of June I960 at 
the County and State aforesaid did unlawfully violate 
Article 27 section 577 of the Annotated Code of Maryland 
1957 edition to wit: Did enter upon and pass over the 
land and premises of Glen Echo Park (KEBAR) after 
having been told by the Deputy Sheriff for Glen Echo 
Park, to leave the Property, and after giving him a reason­
able time to comply, he did not leave .................................
contrary to the form of the Act of the General Assembly 
of Maryland, in such case made and provided, and against 
the peace, government and dignity of the State.

You are hereby commanded immediately to apprehend 
the said William L Griffin and bring him before The Judge 
of the Peoples Court at Bethesda Montgomery County, to 
be dealt with according to law. Hereof fail not, and "have 
you there this Warrant.

Edward W. Cashman, Justice of the Peace for 
Montgomery County, Maryland.

Issued June 30 1960

I





[fol.D]

C

No. 3881 Crim.
Cepi Joseph Snow, Jr. 

Date 6/30/60

[fol. E]
A m e n d e d  S t a t e  W a r r a n t —Filed September 12, 1960 

State of Maryland, Montgomery County, to wit:
To James S. McAuliffe, Superintendent of Police of said 

County, Greeting:
Whereas, Complaint hath been made upon the informa­

tion and oath of Lt. Francis Collins, Deputy Sheriff in and 
for the Glen Echo Park, who charges that William L. 
Griffin, late of the said County and State, on the 30th day 
of June, 1960, at the County and State aforesaid, did un­
lawfully and wantonly enter upon and cross over the land 
of Rekab, Inc., a Maryland corporation, in Montgomery 
County, Maryland, such land at that time having been 
leased to Kebar, Inc., a Maryland corporation, and oprated 
as the Glen Echo Amusement Park, after having been 
duly notified by an Agent of Kebar, Inc., not to do so in 
violation of Article 27, Section 577 of the Annotated Code 
of Maryland, 1957 Edition as amended, contrary to the 
form of the Act of the General Assembly of Maryland, in 
such case made and provided, and against the peace, gov­
ernment and dignity of the State.

You are hereby commanded immediately to apprehend
the sa id ........................................ and bring ....h........  before
_...................................... Judge at .........................................
Montgomery County, to be dealt with according to law. 
Hereof fail not, and have you there this Warrant.

........................................ . Justice of the Peace for
Montgomery County, Maryland.

Filed 9-12-1960

[fol. F] 3881





D

[fol. G] [File endorsement omitted]
No. 18112

In t h e  P e o p l e ’s  C o u r t  o f  M o n t g o m e r y  C o u n t y ’, M a r y l a n d

a t  B e t h e s d a

Warrant issued June 30, 1960 
By Edward W. Cashman, Justice of the Peace.
To James S. McAuliffe, Supt. of Police.

S t a t e  o f  M a r y l a n d , 

vs.
W i l l i a m  L. G r i f f i n , Defendant.

Upon the information of Lt. Collins, Deputy Sheriff in 
and for Glen Echo Park, who charges that William L. 
Griffin on the said 30th day of June, 1960, did unlawfully 
enter upon and pass over the land and premises of Glen 
Echo Park, after having been told by the Deputy Sheriff 
for Glen Echo Park, to leave the property and after giv­
ing him a reasonable time to comply, he did not leave 
contrary to the form of the Act of the General Assembly 
of Maryland and against the peace, government and dignity 
of the State.
Return............. .............................
Commitment......................for a hearing or trial before the
Judge at Bethesda on the 26 day of July, A. D., 1960, with 
Bond posted as sureties.
Continued to 7/26/60
Trial on the 26th day of July A. D., 1960
Defendant asked the right of trial by Jury. Bond $100.00
Set for Sept. 12, 1960

Original papers, bond and Docket Entries sent to Circuit 
Court 8/1/60

Copy of Docket Entries sent to State’s Atty.
Deft’s Atty: Sharlitt

Samuel Gordon, Judge, People’s Court of Mont­
gomery County, Maryland.





E

I hereby certify that the foregoing is a true copy of the 
Docket Entries in the above entitled case.

Given under my hand and seal this 1st day of August, 
A. D., 1960.

Louise S. Harding, Clerk, People’s Court. Bethesda.

[fol. H] No. 3881 Crim.

State of Maryland, 
vs.

William L. Griffin.

[fol. I]
I n  the Circuit Court for Montgomery County, Maryland

Docket Entries 

No. 3881 Criminal

State of Maryland, 
vs.

William L. Griffin. ‘

Trespassing
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury 

Trial &c. filed. Page No. 1
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed. Page No. 5
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 38S2, 3883, 3889 and 3892 
Criminals.

Sep. 12, 1960—Plea not guilty.





F

Sep. 12, 1960—Submitted to the Court and trial before 
Judge Pugh, Mrs. Slack reporting.

Sep. 12, 1960—The Court find defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything to 

say before sentence.
Sep. 12, 1960—Judgment that the Traverser, William L.

Griffin, pay a fine of Fifty and no/100 
dollars ($50.00) current money and costs, 
and in default in the payment of said fine 
and costs, that the Traverser, William L. 
Griffin be confined in the Montgomery 
County Jail until the fine and costs have 
been paid or until released by due process 
o f  law.

Oct. 13, 1960—Petition and Order of Court extending
time for transmittal of record to Court of 
Appeals to and including November 15,

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant

Sep. 12, 1960—Appeal filed. Page No. 6

1960 filed.
Nov. 15, 1960—Testimony filed.

Page No. 7 
Page No. 9



■



1

[fol. 1] [File endorsement omitted]

\ IN THE CIRCUIT COURT FOR
MONTGOMERY COUNTY, MARYLAND

S tate of M aryland, Plaintiff,
vs.

W illia m  L. G r if f in , 
M ich a el  A . P roctor,
C ecil  T. W a sh in g to n , J r ., 
M arvous S aunders and 
G w endolyn  T. G r e e n e , 

Defendants.

No. 3881 Criminals 
No. 3882 Criminals 
No. 3883 Criminals 
No. 38S9 Criminals 
No. 3892 Criminals

Transcript of Hearing—September 12, 1960
I Appea ra n ces :

Charles T. Duncan, Esq., Joseph Sharlitt, Esq., At­
torneys for the Defendants.

James S. McAuliffe, Jr., Assistant State’s Attorney, 
Attorney for the Plaintiff.

[fol. 2]
C olloquy

1

The above-entitled cause came on regularly for hearing, 
pursuant to notice, on September 12, I960, at 10:00 o’clock 
a.m. before The Honorable James H. Pugh, Judge of said 
Court, when and where the following counsel were present 
on behalf of the respective parties, and the following pro­
ceedings were had and the following testimony was adduced.

k Mr. McAuliffe: Your Honor, the State will move to 
" amend the warrants in all five cases, and I have prepared 

copies of the amendment that we would ask that the Court 
make to these warrants, and I would ask that in each case 
the copy which I have prepared be attached to the original 
warrant, as an amendment to it, and the amendment we 
desire to make is the same amendment in each case and 
would read as follows:



'



2

Judge Pugh: Have the defense lawyers seen it!
Mr. Duncan: I would like to see it, your Honor. (Mr. 

McAuliffe hands a copy of the proposed amendment to 
defense attorneys.) Defense counsel makes no objection 
to the motion for leave to amend the warrants, your 
Honor.

Judge Pugh: The motion is granted. Do you desire to 
make an opening statement ?

Mr. McAuliffe: Yes, your Honor.
[fol. 3] Judge Pugh: The pleas are “not guilty?”

Mr. Duncan: Yes, your Honor.

O p e n in g  S ta tem en t  by M r . M cA u l if f e

If the Court please, the defendants in this case are 
William L. Griffin, Michael A. Proctor, Cecil T. Washing­
ton, Jr., Marvous Saunders and Gwendolyn T. Greene. 
The State will show that on the date of June 30th of this 
year the five named defendants, in the company of others, 
came to the Glen Echo Amusement Park, located here in 
Montgomery County, Maryland. That upon arriving at 
the park a representative of the defendants conferred with 
Lieutenant Collins, who is the man in charge of the park’s 
special police force there, and after that conferral that 
the five defendants, in the company of others, having 
brought with them certain signs primarily aimed at the 
policy of Glen Echo to segregate, and to exclude colored 
persons, proceeded to set up a picket line and proceeded 
to walk this picket line with these signs. These signs pro­
claimed the policy of the park and objected to it and asked, 
in effect, that persons who were using the park facilities 
—that they not use the park facilities, unless the park 
would see fit to integrate. A short time after this picket 
line had been formed, in which the five defendants in this 
[fol. 4] case participated—after they had all been informed, 
through their representative, that the park did have a 
policy of not admitting colored persons, the five defendants 
went on to the park property and went to the carousel, 
which is located approximately in the heart of the Glen 
Echo Amusement Park, and proceeded to get on the amuse­
ment rides, some of them having obtained tickets from





3

white persons, who had purchased them from ticket sellers 
within the park.

Thereafter Lieutenant Collins approached the scene 
where the five defendants were on the carousel, and spoke 
to each of the defendants and again informed them that it 
was the park policy not to admit colored persons to the 
private property owned by the park and operated by the 
park, and that if they did not leave that he would arrest 
them for trespass. He then proceeded to give them ap­
proximately five minutes, in which time they were asked 
to leave. At the end of that time he announced to each 
of the defendants—they all remaining where they had 
been on the carousel and in the vicinity of the carousel, 
in the heart of this private property, Glen Echo Amuse­
ment Park—he then proceeded to place the defendants 
under arrest for trespass, under Article 27, Section 577 of 
the Maryland Code. The defendants after being placed 
under arrest by Lieutenant Collins, who is a special deputy 
and sworn in as a Deputy Sheriff of Montgomery County, 
were brought to the Bethesda station.
[fol. 5] Now, we will show you further that the Glen Echo 
property and the Glen Echo park, upon which these de­
fendants went, is private property. That it is owned by a 
corporation, Rekab, Inc. That it is leased by that corpora­
tion to another corporation, Kebar, Inc., which operates 
Glen Echo Park, and we will show you that Lieutenant 
Collins, as a member of the detective agency, is the em­
ployee and agent of both Eekab, Inc., and Kebar, Inc., 
and especially in this case the warrant alleges, and we will 
show, that he is the agent of Kebar, Inc. That he had 
received full authority from the President and the General 
Manager of the corporation with respect to enforcing the 
policy of the park, with respect to segregation, and that 
he had the full authority to maintain order there and to 
order off any persons which he, in his discretion and judg- 

|  ment, thought should not be present on the park property, 
and upon this showing and upon the further showing that 
Rekab, Inc., and Kebar, Inc., are Maryland corporations, 
licensed and doing business here in the State of Maryland, 
and upon showing you that this property upon which the 
defendants entered, and upon being requested to leave,





4

refused to leave, is in fact private property, owned by 
Rekab, Inc., and leased to Kebar, Inc., and upon that state­
ment of facts, upon showing that to the Court, we will ask 
that the Court find these defendants guilty as charged.
[fob 6]
M otion to D ism iss  t h e  W arrants and Overruling  T hereof

Mr. Duncan: I would like, with the Court’s leave, to re­
serve the opening statement on behalf of the defendants, 
and I would like to move to dismiss and quash the war­
rants. The prosecutor has stated that the arrests in this 
case were made by a State officer for the purpose of en­
forcing a policy of private segregation, put into effect 
and maintained by the owner and lessee of the premises 
involved. I submit to the Court that such use of State 
power is unconstitutional. That the application of the 
statute in this case is unconstitutional. The argument being 
that the State may not discriminate against citizens on the 
ground of race and color. It may not do so directly, and 
it cannot do so indirectly. I further move to dismiss the 
warrants—

Judge Pugh: The Court is not allowed to direct a ver­
dict on opening statements. If the Court sits without a 
jury, it is sitting as a jury, and then the Court is the Judge 
of the law and the facts, so, on opening statements we do 
not recognize motions for a directed verdict. The motion 
is over-ruled.

Whereupon, F rancis J. C o llin s , a witness of lawful age, 
called for examination by counsel for the plaintiff, and 
having first been duly sworn, according to law, was ex­
amined and testified as follows, upon

[fol. 7] Direct examination.

By Mr. McAuliffe:
Q. Lieutenant, will you identify yourself to the Court? 
A. Francis J. Collins; 1207 E. Capitol Street, Washing­

ton, D. C.
Q. Lieutenant, by whom are you employed, and in what 

capacity?





5

A. I am employed by the National Detective Agency and 
we are under contract to Kebar, Inc., and Rekab, Inc.

Mr. Duncan: I object to that answer, and move to have 
it stricken.

Judge Pugh: On what ground?
Mr. Duncan: That this witness is not competent to testify 

as to the contents of the contract. The contract itself is the 
best evidence.

Judge Pugh: Objection sustained.
Q. By whom are you employed, Lieutenant Collins?
A. National Detective Agency.
Q. And where are you stationed, pursuant to your em­

ployment with the National Detective Agency?
A. My present assignment is Glen Echo Amusement 

Park.
Q. And at Glen Echo Amusement Park from whom do 

[fol. 8] you receive your instructions?
A. From the Park Manager, Mr. WoronofF.
Q. And for how long have you been so assigned at the 

Glen Echo Amusement Park?
A. Since April 2nd, 1960.
Q. What is your connection and capacity with respect 

to the park special police force there?
A. I am the head of the special police force at the park.
Q. What instructions have you received from Mr. Woro­

nofF, the Park Manager, with respect to the operation of 
the park and your duties in connection therewith?

Mr. Duncan: Objection. The authority of an agent can­
not be established by the testimony of the witness.

Judge Pugh: Objection sustained.
Q. Now then, Lieutenant, directing your attention to the 

date June 30, I960, did you have occasion to be at the 
Glen Echo Park at that time?

A. I was on duty on that date.
Q. And the Glen Echo Amusement Park is located in 

what County and State?
A. Montgomery County, Maryland.
Q. Directing your attention again to June 30, I960, at 

[fol. 9] a time when you were on duty at Glen Echo Amuse-





6

ment Park, did you have occasion to see the five defendants 
in this case on that date?

A. I did.
Q. Will you relate to the Court the circumstances under 

which you first observed these five defendants at the Glen 
Echo Amusement Park?

Mr. Duncan: I object to that question, on the ground 
that it is irrelevant, until the agency of this witness has 
been established.

Judge Pugh: Do you proffer to show that?
Mr. McAuliffe: We proffer to show agency.
Judge Pugh: On the proffer the objection is over-ruled.
A. I did observe the defendant in the picket line, carry­

ing signs.
Q. When was this picket line first established, Lieutenant, 

and under what circumstances?
Mr. Duncan: I object to that question, on the ground 

that it is not relevant, in my opinion. What went on out­
side the park has nothing to do with the issues involved 
here.
[fol. 10] Judge Pugh: Was this picket line on the property 
of the Glen Echo Amusement Park?

A. No, sir, it was on the right of way.
Judge Pugh: It wasn’t on private property?
A. No, sir.
Judge Pugh: Objection sustained.
Q. Now, Lieutenant, what first communication, or con­

tact, did you have with the five defendants here, and what 
were they doing at that time?

Mr. Duncan: I object, your Honor. That is the same 
question, if I understand it correctly.

 ̂ Judge Pugh: The objection is over-ruled.
A. The defendants broke from the picket line and went 

from the picket line—
Judge Pugh (interrupting the witness): Just tell when 

they came on to the private property of the Glen Echo 
Amusement Park.





7

A. Approximately 8:15.
Judge Pugh: All five of them!

[fol. 11] A. Yes, sir.
Judge Pugh: All right. Start from there.
Mr. McAuliffe: The warrant in this case charges a wanton 

trespass and, for purposes of showing that, I think the 
State should be permitted to show that they did, in fact, 
carry signs, proclaiming the policy of the park, and that 
they were aware of the policy of the park.

Judge Pugh: There is no law against carrying signs; is 
there?

Mr. McAuliffe: AVe have a right, I think, to show that 
they knew the policy of the park with respect to segrega­
tion at the time.

Judge Pugh: I just want to know if there was any tres­
pass under the statute.

Q. What, if anything, occurred then?
Judge Pugh: On the property of Glen Echo Amusement 

Park.
A. The five defendants went down through the park to 

the carousel and got on to the ride, on the horses and the 
different animals. I then went up to Mr. Woronoff and 
asked him what he wanted me to do. He said they were 
trespassing and he wanted them arrested for trespassing, 
if they didn’t get off the property.

Q. What did you tell them to do!
A. I went to the defendants, individually, and gave 

[fol. 12] them five minutes to get off the property.
Mr. Duncan: I object and move to have that answer 

stricken. It is not relevant.
Judge Pugh: The objection is over-ruled.
Q. Then, Lieutenant, will you relate the circumstances 

under which you went to the carousel, and what you did 
when you arrived there with respect to these five defen­
dants?

A. I went to each defendant and told them—





8

Q. (interrupting the witness) First of all, tell us what 
you found when you arrived there. Where they were, and 
what they were doing.

A. Each defendant was either on a horse, or one of the 
other animals. I went to each defendant and told them it 
was private property and it was the policy of the park 
not to have colored people on the rides, or in the park.

Q. Now, will you look upon each of the five defendants 
and can you now state and identify each of the five defen­
dants seated here as being the five that you have just re­
ferred to?

A. These are the five defendants that I just referred to.
Mr. Duncan: I would object to that and ask that he be 

required to identify each defendant individually. These 
are five separate warrants.

Judge Pugh: Can you identify each one of these de­
fendants individually?
[fol. 13] A. Yes.

By Judge Pugh:
Q. Did you tell them to get off the property?
A. Yes.
Q. What did each one of them say when you told them 

that?
A. They declined to leave.
Q. What did they say?
A. They said they declined to leave the property. They 

said they declined to leave and that they had tickets.
Mr. Duncan: I renew my objection. There has been no 

individual identification of these defendants.
Judge Pugh: He recognizes these defendants. He didn’t 

know their names at the time. The objection is over-ruled.

Direct examination (continued).

By Mr. McAuliffe:
Q. Lieutenant, will you step down there and point to 

each of the defendants that you recognize as being one of





9

the five persons you saw there that night. (The witness 
leaves the witness stand and approaches defendants’ table.)

A. This gentleman here.
Mr. McAuliffe: Can we stipulate as to that, or may he 

rise and give his name? Can we have the record show 
that the Lieutenant is now pointing to the first of the five 
defendants seated here?
[fol. 14] (The witness continues) Also this gentleman 
here; this gentleman here; this one here, and this one 
here.

Mr. McAuliffe: Let the record show, if the Court please, 
that Lieutenant Collins has pointed to each of the five de­
fendants seated here, and pointed them out.

Mr. Duncan: I would like to object to that procedure, 
and again move that it be stricken. We did not oppose 
the State’s motion to consolidate these cases, and for that 
reason the five defendants are here, seated at the table, 
and it is very easy for the witness to say “Oh, yes, these 
are the five I arrested”, but I submit in a proceeding—

Judge Pugh (interrupting counsel): Lieutenant Collins, 
is there any doubt in your mind that these five defendants 
are the five persons that you ordered off the Glen Echo 
property ?

A. No doubt whatsoever.
Judge Pugh: Objection over-ruled.

Examination of the witness (resumed).

By Mr. McAuliffe:
Q. How long did you wait after ordering the five defen­

dants off the property, before taking any further action?
A. Exactly five minutes
Q. During that time what, if anything, occurred?
A. I walked outside the carousel and the five defendants 

remained on the ride, and the ride didn’t move.
Judge Pugh: Did you ask them who purchased the tickets 

[fol. 15] to that carousel?



'



10

A. They told me they had tickets that had been pur­
chased by white people.

By Judge Pugh:
Q. Who—which one told you that?
A. Saunders. The man with the glasses.

By Mr. McAuliffe (continued):
Q. Lieutenant, I show you this photograph and ask you 

if you recognize that picture?
A. I do.
Q. And what is that picture?
Mr. Duncan: I object to that, your Honor. I don’t see the 

relevancy of it.
Judge Pugh: He has just asked him what it is. You may 

object to it when he offers it in evidence.
A. This is a picture of me, warning Saunders about the 

park’s policy.
Q. When was that taken?
A. At 8:15 p.m. on the carousel.
Judge Pugh: W7ho took the picture?
A. A Star newspaper reporter.

By Mr. McAuliffe:
Q. And is that picture a fair and reasonable representa­

tion of the scene that you have just testified to, when you 
warned the defendant, Saunders?
[fol. 16] A. It is.

Mr. McAuliffe: We offer this into evidence as State’s 
Exhibit Number One.

Mr. Duncan: Your Honor, I object to this. This is a 
photograph of two individuals, one of whom apparently is 
Lieutenant Collins, and the other, apparently, the defen­
dant, Saunders. Lieutenant Collins testifies that this is a 
photograph of him, while he was warning the defendant,





11

and I submit the photograph does not support any state­
ment of warning whatsoever.

Judge Pugh: Lieutenant, did you ask any of these de­
fendants whether or not they saw the signs before they 
came on the property?

A. No, sir.
Q. You don’t know whether they saw the sign or not?
A. I didn’t ask them.
Q. Is the sign in a conspicuous place, where anybody 

going into the park property can see it?
A. Yes, sir.
Q. Where is it?
A. There are eight signs at the different entrances.
Mr. Duncan: I object to your Honor’s statement. I do 

not believe there has been any testimony that any signs 
were present. My objection is that the picture is not rele­
vant, for the reason that if it is offered to show that a 

t  warning was given, that picture doesn’t show it. One ean- 
r [fol. 17] not tell from that picture whether Saunders is talk­

ing to Collins, or Collins is talking to Saunders. Whether 
they are having a pleasant conversation or not.

Judge Pugh: Was this taken on the property of the 
Glen Echo Amusement Park?

A. Yes.
Q. Was it at the time of your notification to get off the 

property?
A. Yes.
Q. Who took the picture?
A. The Star Reporter. I didn’t know the picture was 

being taken.
Q. How did you get it?
A. They sent it to me.
Judge Pugh: The objection is over-ruled. Admit it in 

^  evidence as State’s Exhibit Number One.





12

Examination of the witness (resumed).

By Mr. McAulifTe:
Q. Lieutenant, during the five minutes that you testified 

you waited after warning the defendants, and they re­
mained on the amusement facilities, what, if anything, oc­
curred with respect to other people in the park?

Mr. Duncan: Objection, your Honor; that is not relevant.
Judge Pugh: What is the purpose of it?
Mr. McAulifTe: To show that the Lieutenant’s actions 

[fol. 18] were completely reasonable under the circum­
stances.

Judge Pugh: Objection susfained.
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 escorted them up to our office, with a crowd milling 
around there, to wait for transportation from the Mont­
gomery County Police, to take them to Betliesda to swear 
out the warrants.

Mr. Duncan: At this point I renew my Motion to quash 
the warrants.

Judge Pugh: The motion is denied.
Mr. Duncan: May I state what the grounds are, your 

Honor?
Judge Pugh: You can state that at the end of the case.
Mr. Duncan: I am required to state this at the beginning.
Judge Pugh: You have stated your Motion and the 

Court has ruled on it. You may argue it to the Court of 
Appeals.

Examination of the witness (resumed).

By Mr. McAulifTe:
Q. Lieutenant, I show you this plat, and ask you if you 

know what that plat is?





13

[fol. 19] A. This is a plat of the property that Glen Echo 
occupies in Montgomery County.

Q. Is that the Glen Echo Amusement Park that you refer 
toT

A .  Yes, sir.
Mr. McAuliffe: May we have this plat marked for 

identification as State’s Exhibit Number Two?
Judge Pugh: It may be marked for identification.
Q. Lieutenant, referring to that plat, State’s Exhibit Two 

for identification, can you point to the spot, or establish 
on that plat the spot where the defendants were at the 
thne you referred to when they were on the carousel ?

Mr. Duncan: I object to that, your Honor. The plat has 
not been offered into evidence.

Mr. McAuliffe: AYe proffer to offer the plat in evidence, 
but we do not seek to show the markings to the Court at 
this time. We will call our next witness to establish the 

I authenticity of the plat.
Mr. Duncan: I object, your Honor.
Judge Pugh: Pass over that question at the present 

time and call him back after the survey has been introduced.

By Mr. McAuliffe (continued):
[fol. 20] Q. Lieutenant, immediately prior to the time that 
these five defendants entered on to the property of the 
Glen Echo Park, what signs were they carrying?

Mr. Duncan: I object to that, on the same ground. What 
they were doing on a public street is not relevant.

Judge Pugh: Did they carry the signs on the property 
of the Glen Echo Park?

A. No, sir.
k Mr. McAuliffe: The warrants have charged a wanton 
" trespass. If the defendants intend to claim that the defen­

dants were not aware of the policy of the park—
Judge Pugh (interrupting counsel): \\Te are trying a 

simple trespass case. AATe do not care what signs they 
carried off the property. We are not trying a racial case. 
We are trying a simple trespass case under the statute. 
The objection is sustained.





14

Examination of the witness (resumed).

By Mr. McAuliffe:
Q. Lieutenant, how were you dressed at the time you 

approached the defendants and when you warned them?
A. I was in uniform.
Q. What uniform was that?
A. Of the National Detective Agency; blue pants, white 

shirt, black tie and white coat and wearing a Special 
Deputy Sheriff’s badge.

Q. What is your position, or capacity, with respect to 
[fol. 21] being a Deputy Sheriff ? Are you, in fact, a Deputy 
Sheriff of Montgomery County?

A. I am a Special Deputy Sheriff of Montgomery County, 
State of Maryland.

Q. And specifically by what two organizations are you 
employed ?

A. Rekab, Inc., and Ivebar, Inc.
Mr. McAuliffe: You may cross-examine.
Mr. Duncan: Is it my understanding that this witness’ 

duties have been admitted, subject to proof ?
Judge Pugh: Subject to agency. Agency has not been 

established yet. I sustained the objection on that proffer.

Cross examination.

By Mr. Duncan:
Q. You just said you are- employed by Rekab, Inc., and 

Kehar, Inc:, is that correct?
A. I am employed by the National Detective Agency and 

they have a contract with Kebar, Inc., and Rekab, Inc.
Q. Who pays your salary ?
A. The National Detective Agency.
Q. And do you have any other income from any other 

 ̂ source ?
A. No, sir.
Q. Do you receive any money directly from Rekab, Inc., 

or Kehar, Inc.?



'



15

[fol. 22] A. No, sir.
Q. Your salary, in fact, is paid by the National Detective 

Agency; is that correct?
A. Yes.
Q. What kind of agency is that!
A. A private detective agency.
Q. Is it incorporated?
A. Yes, sir.
Q. In what State?
A. The District of Columbia.
Q. Are you an officer of that corporation?
A. No, sir.
Q. Are you an officer of either Rekab, Inc., or Kebar, 

Inc.?
A. No, sir.
Q. Mr. Collins, you testified that you saw these defen­

dants prior to the time they entered the park; is that 
correct ?

A. Yes, sir.
Q. Had you ever seen them before?
A. No, sir.
Q. When you saw them inside the park, did you recog­

nize them as the persons you had seen outside the park?
A. Yes, sir.
Q. Now you stated that you told them it was the policy 

of the park not to admit colored people. Is that, in fact, the 
policy of the park?

A. Yes.
[fol. 23] Q. Has it always been the policy of the park?

A. As far as I know.
Q. How long had you worked at Glen Echo Park?
A. Since April 2, 1960.
Q. And before that time were you employed by the Na­

tional Detective Agency?
A. That is right.
Q. But you were assigned to a place other than Glen 

Echo?
A. That is right.
Q. To your knowledge, had negroes previously ever been 

admitted to the park?
A. Not to my knowledge.





16

Q. Now did you arrest these defendants because they 
were negroes!

Mr. McAuliffe: Objection.
Judge Pugh: Over-ruled.
A. I arrested them on orders of Mr. Woronoff, due to the 

fact that the policy of the park was that they catered just 
to white people; not to colored people.

Q. I  repeat my question. Did you arrest these defendants 
because they were negroes?

A. Yes, sir.
Q. Were they in the company of other persons, to your 

knowledge ?
A. Yes, sir.

[fol. 24] Q. Were they in the company of white persons!
A. Where!
Q. When they were on the carousel.
A. There were white persons on the carousel when they 

were there.
Q. To your knowledge, were they in the company of 

white persons!
A. One white person was with one of the colored people.
Q. With which colored person was the white person with?
A. This gentleman right here (indicating one of the de­

fendants).
Q. Do you know his name ?
A. No, I don’t know.
0. Did you arrest the white person who was in his com­

pany!
A. No, sir; I did not.
Q. Why not?
A. At the time we got back to the carousel, she had left. 

By the time I had these defendants out, she had gone, as 
far as I know.

Q. Does this policy of Glen Echo Park extend to all 
negroes, no matter who they are!

Mr. McAuliffe: Objection.
Mr. Duncan: I will rephrase it.

[fol. 25] Q. Does it extend to negroes, without regard to 
how they are dressed, or how they conduct themselves?





17

Mr. McAuliffe: Objection.
Judge Pugh: Over-ruled.
Mr. Duncan: Will the Reporter read the question, please? 

(the last question was read back).
A. Yes; that is right.
Q. Did it come to your attention, Mr. Collins, that these 

defendants had tickets when they were arrested?
A. They showed me tickets.
Q. Did you make any offer to these defendants with re­

spect to the tickets which they had ? Did you offer to refund 
them any money?

A. No, sir.
Q. Are you familiar with the manner in which tickets are 

acquired and sold at Glen Echo Amusement Park?
A. Yes, sir.
Q. Will you tell the Court how that is?
A. They are sold through ticket booths.
Q. Are the ticket booths located inside the park, or are 

they located at the entrance?
A. Inside the park.
Q. Is there any ticket booth at the entrance to the park?
A. No.

[fol. 26] Q. So the access to the park from the public high­
way is not obstructed?

A. No, sir.
Q. Now, if you know, is it customary at the park for one 

person to purchase tickets and transfer them to another?
A. I would not know.
Q. Are you ever at the park, Mr. Collins?
A. Yes.
Q. Have you ever observed tickets being purchased?
A. Yes. I have.
Q. Have you ever seen a father purchase tickets and give 

them to his children?
A. Yes.

I Q. Then you do know that that is done; is that correct ?
A. In that case; yes.
Q. Do you know of any other cases in which it is done?
A. No.





18

Q. Mr. Collins, you testified that you recognized these 
defendants as being the persons you arrested.

A. That is right.
Q. Do you know the name of any one of them?
A. Yes.
Q. "Which ones do you know by name ?
A. Marvin Saunders.
Q. What is his name ?
A. Marvin Saunders.
Q. I am asking you what you know of your own knowl­

edge.
A. Right now one is all I know.

[fol. 27] Q. And you know him as Marvin Saunders; is 
that your answer?

A. Yes, sir.
Q. At the time you arrested Mr. Saunders, did you know 

his name ?
A. No.
Q. Had you ever seen him before?
A. Yes, sir.
Q. Where?
A. In the picket line.
Q. You don’t know the names of any of the other defen­

dants who are seated at this table?
A. Not sitting right here, but I have the facts in my brief­

case here. i
Q. My question is, do you know the names of any of the 

other defendants who are seated at this table?
A. Only Saunders.
Q. Since you don’t know Mr. Griffin, on the end there, 

you don’t know whether or not he has a brother; is that 
correct?

A. I don’t know.
Q. Are you positive it was Mr. Griffin you arrested, and 

not some other person?
A. Yes, sir.
Q. How do you know Mr. Griffin was on the carousel?
A. I saw him there.
Q. How do you remember that you saw this person? 

There were a lot of people in the park, weren’t there?
[fol. 28] A. I was concentrating on these people here at 
the time.





19

Q. Were there other people on the carousel?
A. Not colored people.
Q. Were these the only five people in the immediate 

vicinity?
A. No.
Q. There were other people in the immediate vicinity?
A. Yes.
Q. I want you to tell the Court how you know that Mr. 

Griffin was on the carousel?
A. I went up to him and told him what the situation was, 

and I looked at him, and I could see that it was him.
Q. How do you know that it was this man here?
Mr. McAuliffe: I object to this.
Judge Pugh: It is proper cross-examination. Objection 

over-ruled.
Q. How do you know it was this person here?
A. I recognize him as being the man that was on the 

carousel.
Q. Were there any negroes on the carousel who were 

not arrested?
A. Not to my knowledge.
Q. Are you sure?
A. If they were on there, I didn’t see them.
Q. If you had seen them, would you have arrested them?
A. Yes, sir.
Judge Pugh: Do you mean just because they were 

negroes ?
[fol. 29] A. Due to the fact that the park is operated on 
a segregated policy.

Judge Pugh: Would you tell them to get off the prop­
erty?

A. No. I would notify them they were on private prop- 
^ erty, and it was not the policy of the park to have negroes 

in the park.



■



20

Cross examination (continued).

By Mr. Duncan:
Q. The next gentleman here now, Mr. Proctor—how do 

you know Mr. Proctor was on the carousel?
A. Because I talked to him.
Q. And because you talked to him, you know he is the 

same person who is seated here?
A. Yes.
Q. Was there something distinguishing about his face 

that made you remember him?
A. No.
Q. Have you talked with him since?
A. No.
Q. Why did you ask this defendant to leave the carousel?
A. Because he was on private property, and the park is 

segregated.
Q. You said the park was segregated against negroes; is 

that correct ?
A. Yes.
Q. Did you ask him if he was a negro?
A. No, sir.
Q. How did you know he was a negro?

[fol. 30] A. He has the appearance, and all.
Q. Can you say he is not a Romanian?
A. I can’t say.
Q. Can you say he is not a Filipino?
Mr. McAulitTe: I object to this. I don’t think it is proper. 

He was warned and he didn’t leave.
Judge Pugh: He said he arrested these defendants be­

cause they were negroes. In view of that answer I will 
allow the question.

Q. Did you ask him if he were a negro ?
A. No.
Q. Do you now know what his race is ?
A. I believe he is a negro.
Q. Why do you believe that ?
A. Outward appearance.
Q. Could his outward appearance purport his being a 

member of any other race, Mr. Collins?





21

A. I would not know.
Q. Well then, you couldn't say that he was a negro 

seated there, could you? Have you ever seen a person from 
the Philippine Islands!

A. Yes.
Q. From Hawaii?
A. Yes.
Q. From Pakistan?
A. Yes.
Q. Have you ever seen anyone from any of those coun- 

[fol. 31] tries who looked like this person here?
A. I don’t know what you mean.
Q. I want to find out what your policy is in determining 

negroes by sight.
A. I don’t get your question.
Q. You stated to me, Mr. Collins, that you did not ask 

Michael Proctor whether he was a negro or not.
A. Yes.
Q. You further testified that you arrested him because 

he was a negro.
A. Yes.
Q. And I asked you how you knew he was a negro.
A. He didn’t deny it.
Q. Did you ask him?
A. No, sir.
Q. You further testified that you thought he was a negro 

because of his outward appearance; is that correct?
A. Yes.
Q. I am asking you on what basis you concluded, on the 

strength of his appearance, that he was a negro and not an 
Armenian, a Tunisian, an Arabian, an Egyptian, or a native 
of some other country?

A. When I told him of the policy of the park—that 
negroes were not allowed in the park—he didn’t deny it.

Q. Did he say anything?
A. He declined to leave the park.
Q. Did he say anything with respect to his racial identity? 

[fol. 32] A. No, sir.
Q. Are you now prepared to say that he is a negro?
A. He didn’t deny that he was a negro.
Q. I didn’t ask you that. I asked you if you are now pre­

pared to say that Michael Proctor is a negro ?





22

A. In my estimation, he is.
Q. In your opinion he is a negro?
A. In my opinion, yes.
Q. But you are not sure, are you Mr. Collins?
A. I am sure of my opinion.
Q.. But you are not sure of his race, are you?
Mr. McAuliffe: I object.
Judge Pugh: The objection is over-ruled.
A. I cannot prove that he is.
Q. You can’t prove that he is a negro?
Judge Pugh: He didn’t deny that he was a negro?
A. No, he didn’t.
Mr. Duncan: Your Honor, I hope we are not at the point 

where we are under duty to deny being a negro, if such a 
statement is made.

Q. Mr. Collins, at the time that you first spoke to these 
defendants, did each one of them tell you that they were 
holding tickets to ride the device you took them off of ?

A. No, sir.
[fol. 33] Q. Did Mr. Griffin tell you that he had a ticket ? 

A. No, s ir ; he did not.
Q. Did Mr. Proctor tell you that he had a ticket ?
A. He had one in his hand.
Q. Did he offer it to you, or extend it?
A. No.
Q. How did you know he had it?
A. I saw it in his hand.
Q. What about Mr. Saunders? Did he tell you he had a 

ticket?
A. I didn’t see a ticket.
Q. What about Miss Greene, did—
A. I didn’t see her ticket.
Q. Let me finish my question, please. Did she say any­

thing to you about having a ticket?
A. No, sir.
Judge Pugh: What kind of ticket was it?
A. An admission to the ride ticket.





23

Judge Pugh: You mean on the carousel!
A. Yes, sir.
Judge Pugh: You got on the carousel and they were 

seated on it!
A. Yes, sir.
Judge Pugh: And they had a ticket in their hands!
A. No, sir.

[fol.34] Judge Pugh: Was the ticket taken up by the 
ticket collector?

A. No, sir.

Examination of the witness (resumed).

By Mr. Duncan:
Q. How about Mr. Washington? Did you see him with a 

ticket, or talk to him about a ticket?
A. No.
Q. Is it your testimony that the only ticket you saw was 

the one held by Mr. Proctor?
A. Yes.
Q. Is it your testimony that only Mr. Proctor had a 

ticket?
A. As I recall it.
Q. Is there some question in your mind? You were very 

definite about the identification.
A. He had a ticket in his hand. He may have had more 

than one ticket. He was holding it up on the rail and I was 
standing on the ground.

Q. You didn’t see tickets in the hands of any of the 
others?

A. I didn’t notice them.
Q. But it is your testimony that they did not tell you 

they had tickets?
A. They did not.
Q. Describe the conduct of the defendant, Griffin; the 

gentleman sitting next to you, from the time you first saw 
him in the Glen Echo property until the time you placed him 
under arrest.





24

[fol. 35] A. When I saw him on Glen Echo property, he 
was on the carousel.

Q. That was the first time you saw him?
A. On Glen Echo property, yes.
Q. How was he dressed ?
A. That I do not recall.
Q. You don’t recall how he was dressed?
A. Not exactly.
Q. Did he have on a suit?
A. I don’t recall.
Q. Shirt and tie ?
A. I don’t recall.
Q. Sport shirt?
A. I don’t recall that.
Q. But you recall that it was this person; is that right?
A. Yes.
Q. Tell me what he was doing when you first saw him, sir. 
A. When I first saw him he was on the carousel.
Q. Tell me what he was doing. Was he standing, holding 

the railing, or sitting on a horse ?
A. He was seated on one of the animals.
Q. Which animal; what type?
A. I don’t recall.
Q. You don’t recall how he was dressed, but you recall 

him; is that right ?
A. Yes, sir.

[fol. 36] Q. Was this a moving horse, or a stationary 
horse?

A. It was stationary at the time.
Q. The question was, was it a device that moved, up and 

down, when the carousel was in motion?
A. Most of them do move when the carousel is in opera­

tion.
Q. Was he seated astride the horse?
A. I didn’t say horse; he was astride one of the animals. 
Q. Was he talking to anyone?
A. I believe he was talking to a white girl who was seated 

opposite him; on the horse beside him.
Q. Did you overhear that conversation?
A. No.
Q. How far away were you?





25

A. Three feet, probably.
Q. And you couldn’t overhear the conversation! He was 

apparently talking softly then?
A. The music was going.
Q. Did he have anything in his possession other than the 

ticket you say you saw?
A. Not that I recall.
Q. Would you say, Mr. Collins, that his conduct was 

peaceful and orderly?
A. At the time I spoke to him.
Q. He didn’t become disorderly at any time, in fact, did 

he?
A. No, sir.

[fol. 37] Q. There was no loud talking?
A. Not that I know of.
Q. And certainly no one was drunk or intoxicated, or 

anything like that ?
A. I wouldn’t know.
Q. You arrested them, didn’t you?
A. You said no one.
Q. No one of these defendants were intoxicated, were 

they?
A. As far as I know; no.
Q. You had occasion to talk to each one of them, didn’t 

you?
A. Yes.
Q. Can't you say whether any of them had been drinking 

or not?
A. No.
Q. Have you had occasion to arrest people for being 

intoxicated in Glen Echo?
A. Yes.
Q. You are a police officer, aren’t you?
A. Yes.
Q. Don’t you claim some expert knowledge of such mat­

ters?
A. Yes; by their actions.
Q. Based on the actions of these people can’t you say that 

they were not, in fact, intoxicated?
A. As far as I know they were not intoxicated.





26

[fol. 38] Q. You were very quick to judge this gentleman’s 
race by his appearance. I would like your opinion as to his 
state of sobriety.

Mr. McAuliffe: Objection.
Judge Pugh: He said they were not intoxicated and did 

not appear to be. The objection is sustained. Did you 
smell any odor of alcohol on any of them?

A. No, sir.

Examination continues.

By Mr. Duncan:
Q. You testified that the defendant, Griffin, was peace­

ful and orderly. Was the same true as to all the other de­
fendants?

A. Yes.
Q. At all times throughout?
A. Yes, sir.
Q. At the time you arrested them, Mr. Collins, did any 

of them ask to speak to the management?
A. No, sir.
Q. Did any of them tell you that they wanted to ride on 

the merry-go-round?
A. Yes, sir.
Q. Let’s take Mr. Washington, here on the end. Tell me 

the conversation you had with him at the time you arrested 
[fol. 39] 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 about the policy of the park and 
they answered me that they weren’t going to leave the park.

Q. I am talking about Mr. Washington here on the end. 
I want to know what you told Mr. Washington.

A. I told him that he was on private property and it was 
the policy of the park not to cater to negroes and I ordered 
him off the park property.

Q. Where was he at the time you told him that?
A. On one of the animals on the carousel.
Q. What did he say to you ?
A. After five minutes he refused to leave.



.



27

Q. He said to you after five minutes that he refused to 
leave! Is that your answer! I don’t want to confuse you. 
I want to know what he said to you in response to your 
statement to him.

A. He said he wouldn’t leave.
Q. Did he make any statement to you!
A. No.
Q. He remained mute; is that correct ?
A. He told me he wasn’t getting off the animal; whatever 

animal he was on.
Q. I repeat my question. Will you tell me what Mr. 

Washington said to you in response to your initial state­
ment to him?
[fol. 40] A. As far as I recall, he just told me that he 
wasn’t going to get off the carousel.

Q. Did he say anything else?
A. Not that I recall.
Q. Did he tell you that he wasn’t going to get off the 

carousel?
A. Yes.
Q. How was he dressed?
A. I believe he had a sport shirt on.
Q. Let’s take Miss Greene; where was she when you talked 

to her?
A. She was on the carousel.
Q. Do you recall where?
A. Yes; on one of the animals.
Q. What did you say to her, Mr. Collins?
A. I told her the policy of the park, and ordered her 

off the carousel, and off the property.
Q. And what did she say to you?
A. I believe she said she had a ticket. I don’t recall 

what else.
Q. What about Mr. Saunders? Where was he at the 

time you arrested him?
A. On the carousel, on one of the animals.
Q. What did you say to him ?
A. I told him the policy of the park and ordered him off 

[fol. 41] the property.
Q. And what did he say?





2 8

A. He refused to get off the animal, and I told him I 
would give him five minutes to do it.

Q. What did he say, Mr. Collins ?
A. He said “I am not getting off.”
Q. They all said pretty much the same thing; is that 

right ?
A. Yes; as far as I know.
Judge Pugh: How did you get him off the animal ?
A. I told him he was under arrest and he got down. 
Judge Pugh: Did you grab him by the arm !
A. I didn’t have to ; he got off.
Judge Pugh: And then did you take them to the office? 
A. To our office to await transportation.
Judge Pugh: Is that where you swore out the warrant? 
A. No; at the sub-station in Bethesda.

The examination (continued).

By Mr. Duncan:
Q. You testified that you saw each of these five individ­

uals before they entered the park; is that correct?
A. Yes.

[fol. 42] Q. On the 30th of June, 1960, where did you have 
your first conversation with the defendant, Griffin?

A. On the carousel.
Q. Did you have any conversation with any of the other 

four defendants prior to your conversation on the carousel? 
A. No, sir.
Q. No doubt about that then?
A. No, sir.
Mr. Duncan: I have no further questions.





29

Redirect examination.

By Mr. McAnliffe:
Q. Did you have any conversation with anyone who 

identified himself as being the representative of the other 
five defendants!

Mr. Duncan: Objection.
Judge Pugh: Was that in the presence of these five 

defendants?
Mr. McAuliffe: It was very close to these defendants.
Judge Pugh: Did someone appear in behalf of these five 

defendants, who were not individually present at the time 
you had the conversation with him?

A. Yes, sir.
Judge Pugh: Was it in the hearing of these five defen­

dants?
A. They were walking and he was standing still.
Judge Pugh: Where were they walking to? To the office 

[fol. 43] where you placed them under arrest ?
A. No, the situation is this—
Judge Pugh (interrupting the witness): Was it before 

or after the arrest?
A. Before the arrest.
Judge Pugh: On the park property?
A. I was on park property and this other individual was 

on government property.
Judge Pugh: The objection will be sustained. He was off 

the property.

Examination of the witness (continued).

By Mr. McAuliffe:
Q. Referring to this gentleman seated on the end. What 

characteristics that he possesses, in your opinion, led you to 
believe that he was a negro ?

A. His color.





30

Q. What is his color!
A. Black.
Q. And are there any other characteristics that he has 

which led you to believe that he is a negro ?
A. His eyes.
Q. What about his eyes?
A. They are black.
Q. What about his hair ?
A. Curly. Kinky.

[fol. 44] Q. Now then, Lieutenant, you warned these de­
fendants, because they were negroes, to leave the park; 
is that correct?

A. Yes.
Q. Did you arrest them because they were negroes, or be­

cause they refused to heed your warning to leave the park?
Mr. Duncan: I object to that. He has already testified 

that he arrested them because they were negroes.
Judge Pugh: It is a leading question; objection sustained.
Q. Exactly why did you arrest these five defendants?
Mr. Duncan: Objection. That question has been answered 

before.
Judge Pugh: Objection over-ruled.
A. They were trespassing and refused to leave the prop­

erty.
Judge Pugh: Not because they were negroes? I thought 

you testified, on cross-examination, that you arrested them 
because they were negroes. Is that why you arrested them.

A. They were negroes and refused to leave the property.
Judge Pugh: Do you want to change your testimony on 

cross-examination no\v?
[fol. 45] A. No, sir.

Judge Pugh: Well, what did you mean when I asked you 
if you arrested them just because they were negroes? Is 
that the sole reason?

A. No, s ir ; they wouldn’t leave the property.
Judge Pugh: There were other reasons then?
A. Yes.





31

By Judge Pugh:
Q. What were the other reasons ?
A. They would not leave the property.
Mr. Duncan: I wonder if that answer should not be 

stricken; on the grounds that it seems to me the prosecutor 
is now impeaching his own witness.

Judge Pugh: Over-ruled.

Examination of the witness (resumed).

By Mr. McAuliffe:
Q. Are you familiar with the policy of the ticket sellers 

at Glen Echo on Glen Echo property with respect to selling 
to negroes?

A. Yes.
Q. What is that policy?
A. They do not sell to negroes.
Judge Pugh: We are not trying a racial case.

[fol. 46] Q. Did you ascertain whether either one of these 
five defendants had, in fact, purchased a ticket for a ride 
on the carousel on June 30th?'

A. They did not purchase them, as far as I know.
Judge Pugh: What did they do with the tickets they had 

in their hand ?
A. They kept them.
Q. You didn’t take them up?
A. No.
Q. How m u c h  were t h e y  A v o r th ?
A. I think five cents apiece.

Examination of the witness (continued).

By Mr. McAuliffe:
Q. At any time did you note the names of the five per­

sons you arrested?
A. Yes, sir.
Q. When did you do that, Lieutenant ?





32

A. At Bethesda.
Q. And on what did you note these names!
A. First on the warrants and then on our arrest cards.
Q. Do you have the arrest cards with you that were 

prepared in connection with these defendants?
A. Yes, sir.
Q. By referring to the cards, can you identify them by 

name?
A. Yes, sir.

[fol. 47] Q. What are their names?
Mr. Duncan: Could we see what he has in his hand?
Judge Pugh: Is that the record that you made?
A. The clerk did.
Q. Was it made under your direction?
A. Yes.
Q. Was it made at the time you arrested them?
A. Yes.
Judge Pugh: You may look at it. (Defense counsel takes 

the paper from witness and examines it.) Is it necessary 
for you to look at that piece of paper in order to refresh 
your recollection?

A. Yes, sir, it is.
Mr. Duncan: Your Honor, these cards contain certain 

information. May I ask the witness where that informa­
tion came from?

Judge Pugh: They aren’t going into evidence. The wit­
ness is using them for the purpose of refreshing his recol­
lection.

Examination of the witness (resumed).

By Mr. McAuliffe:
Q. Having refreshed your recollection as to the names 

of these defendants that were arrested on June 30th, what 
are their names?
[fol. 48] A. Cecil T. Washington, Jr., Michael A. Proctor, 
William L. Griffin, Gwendolyn T. Greene and Marvous 
Saunders.





33

Q. You testified on cross-examination, Lieutenant, that 
these defendants were peaceful and orderly while they were 
on the carousel, after you had warned them and during 
that five minute interval that you gave them before arrest­
ing them. Were there any persons admitted to the park 
and in the immediate vicinity of these five defendants, who 
were not peaceful and orderly at the time?

Mr. Duncan: We object.
Judge Pugh: Did these defendants have any other people 

with them?
A. There was a large crowd around them from the 

carousel up to the office.

By Mr. McAuliffe (continued).
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 
[fol. 49] other reason than that they were negroes, and 
gave them five minutes to get off the property.

Judge Pugh: Was there any disorder?
A. It started a disorder because people started to heck­

ling.
Judge Pugh: They weren’t connected with these defen­

dants, were they?
A. No, sir.
Judge Pugh: Objection sustained.
Mr. McAuliffe: That concludes our examination of

Lieutenant Collins, subject to a right to recall him for pur­
poses of identifying the location on the plat.





34

Recross examination.

By Mr. Duncan:
Q. You said you were able to identify Mr. Griffin by his 

appearance, which you described as “black”, “black eyes 
and kinky hair;” is that the way you tell negroes?

A. Either that or ask them.
Q. One of those two ways?
A. Yes.
Q. And by your definition, all negroes look pretty much 

[fol. 50] alike to you, don’t they?
A. Pretty near.
Q. Mr. Collins, do you hold any degrees from any college 

or university?
A. No, sir; I don’t.
Q. Have you ever taken any courses of study from any 

colleges or universities in the field of sociology or anthro­
pology?

A. No, sir.
Q. Have you ever done any reading on those subjects, 

as a hobby or vocation ?
A. No, sir.
Q. In light of your answer to Mr. McAuliffe, that you 

knew that Mr. Griffin was a negro for the reasons that you 
gave, how did you know that Mr. Proctor was a negro?

A. He didn’t deny it.
Mr. Duncan: I have no further questions.
Mr. McAuliffe: That is all I have.
(Short recess.)

* * * • # * #

[fol. 67] A bram B \ k er , a w itn e ss  o f law fu l age , ca lled  fo r  
ex am in a tio n  b y  co u n se l f o r  th e  p la in tif f ,  a n d  h a v in g  firs t 
been d u ly  sw o rn , a c c o rd in g  to  law , w as  ex am in ed  a n d  te s t i ­
fied, u p o n





35

[fol. 73] Direct examination.

By Mr. McAuliffe (continued):
Q. Directing your attention to this lease, State’s Exhibit 

#7, Mr. Baker, I ask you whether that lease was in effect 
on the date of June 30th of this year!

A. Yes, sir; it was.
Q. Now, as President of Rekab, Inc., and Ivebar, Inc., 

will you describe what policy is maintained by the two 
respective corporations with respect to the admission of 
negroes to the Glen Echo Amusement Park?

A. I don’t get your question.
Q. What policy is maintained by Rekab, Inc., and Ivebar, 

Inc., with respect to the admission of negroes to the amuse­
ment park?

A. They are not allowed in the park.
Q. And what instructions and what authority has been 

given by Rekab, Inc., and Kebar, Inc., by you as President 
of each of these corporations, to Lieutenant Collins with 
respect to this park policy?

A. To give them all due respect and if they do not do 
what he asks them to do within a time that he thinks it 
should have been done, that he should arrest them.
[fol. 74] Mx\ Duncan: Your Honor, I move to strike that 
answer on the ground that Mr. Collins testified he was 
employed by National Detective Agency.

Judge Pugh: Did you give Lieutenant Collins any in­
structions yourself?

A. He used to ask for instructions almost every day on 
something or other in the park.

Judge Pugh: Proceed.
Mr. Duncan: I renew my objection.
Judge Pugh: Over-ruled.

By Mr. McAuliffe (continued):
Q. Now then, Mr. Baker, what agency does the park em­

ploy, specifically what agency does Rekab, Inc., and Kebar, 
Inc., employ for purposes of maintaining law and order on 
the park property?





36

A. This year it was the National Detective Agency.
Q. And who, in the National Detective Agency, was desig­

nated as the director or the man in charge of the police 
force on the park grounds*

A. Lieutenant Collins.
Q. And as such did you have occasion to give Lieutenant 

Collins any instructions with respect to a park policy 
[fol. 75] against admitting negroes?

A. Yes.
Q. And what specific instructions did you give him with 

respect to authority to order people off of the park prem­
ises?

A. Well, he was supposed to stop them at the gate and 
tell them that they are not allowed; and if they come in, 
within a certain time, five or ten minutes—whatever he 
thinks, why he would escort them out.

Q. In the event they didn’t see fit to leave at his warning, 
did you authorize Lieutenant Collins to have these people 
arrested?

A. Yes.
Q. On a charge of trespass?
A. On a charge of trespassing.

* * * * * * *

[fol. 80] Judge Pugh: Ask another question.

Cross examination of the witness (resumed).

By Mr. Duncan:
Q. Has your corporation, either Rekab, Inc., or Ivebar, 

Inc., entered into any contractual relationship with the 
National Detective Agency for the purpose of providing 
service at the park?

A. AVe have an agreement.
Q. A written agreement?
A. Yes.
Q. Do you have a copy of that agreement?
A. I do not have one with me.
Q. Did you pay the salary of Lieutenant Collins, you or 

the corporation?
A. AA'e pay the National Detective Agency by check, and 

they take care of their men.





37

Q. Do you pay them a lump sum per month, or per year?
A. A lump sum weekly.
Q. For all the services they render to you?
A. That is right.
Q. It is not broken down?
A. It is down in their office.
Q. In other words, you pay them a flat weekly rate?
A. We send the time schedules to their office and 

[fol. 81] doublecheck with them and then we pay them what­
ever we owe them for the week.

Q. How is that determined ? Do they bill you ?
A. Between the auditor in their office and the auditor 

in our office—that we have the right amount; that the time 
schedules are correct.

Q. Does the contract to which you have testified relate 
the duties which the guards in the park have to perform?

A. Yes.
Q. Have you ever had any conversation with Lieutenant 

Collins, relating to the racial policies of the park?
A. Yes.
Q. When did you first talk to him about your policies?
A. He knew the policy right from the beginning.
Q. I asked you when did you first have occasion to talk 

to him about that.
A. When he first took over.
Q. When was that ?
A. April 2nd, I think, 1960.
Q. Now you talked with him personally?
A. Well if I didn’t, my brother did. 1 can’t go back 

that far. If I didn’t, my brother did.
Q. Did you talk with him, personally?
A. I have many times.
Q. I mean, in April I960, when Mr. Collins took over, 

did you talk with him, personally, relating to the racial 
policies of the park?

A. I don’t know if it was that day or not, hut I did 
[fol. 82] talk to him.

Q. Have you ever talked with him about the racial policy 
of the park?

A. Yes.





38

Q. When, according to your best recollection, did you 
first talk with him about that?

A. I don’t know. I would say it would be April 2nd, but 
I am not sure. April 2nd, I960.

Q. Is it your testimony that you talked with him, or 
your brother talked with him on April 2nd?

A. We both talked to him. If one is there, he talks to 
him, and—

Q. I want to know what conversation you, Abram Baker, 
had with Lieutenant Collins.

A. It is all according to what he asked me.
Q. When did you first have occasion to talk with him 

about the racial policy of the park?
A. We had him sit down, and talked it over the first day.
Q. Were you present at that conversation ?
A. That I can’t tell you.
Q. You don’t know whether you were there or not ?
A. I don’t know if I was there April 2nd, or whether my 

brother talked to him.
Q. Will you pick a day, please, when you were there?
A. I don’t know.
Q. You have no recollection of talking to him as to the 

racial policy of the park?
[fol. 83] A. I did; many times.

Q. Well do you think you talked to him in the month 
of April?

A. I would say so.
Q. Do you mean by that, that you did talk to him during 

the month of April about that subject ?
A. I think so.
Q. Are you in doubt as to whether you did talk to him 

in the month of April?
A. Well if something didn’t come up, why I didn’t have 

to talk to him about it.
Mr. Duncan: Your Honor, 1 am going to ask the Court’s 

assistance in trying to fix a date.
Judge Pugh: Cross-examine him.





39

By Mr. Duncan (continued):
Q. Did you have any conversation with Lieutenant Col­

lins, in the month of May, 1960, regarding the racial poli­
cies of the park!

A. I may have.
Q. And you may not have!
A. If nothing turned up, I may not have had to talk to 

him about it.
Q. Did you have any conversation with him in the month 

of June, 1960, about the racial policies of the park?
A. Yes.
Q. When was that ?

[fol. 84] A. June 30th.
Q. And where did that conversation take place?
A. In my brother’s office.
Q. Were you present ?
A. Yes.
Q. You, yourself, were present?
A. Yes.
Q. Would you tell the Court what you told Lieutenant 

Collins relating to the racial policies of the Glen Echo 
Park?

A. We didn’t allow negroes and in his discretion, if any­
thing happened, in any way. he was supposed to arrest 
them, if they went on our property.

Q. Did you specify to him what lie was supposed to 
arrest them for!

A. For trespassing.
Q. You used that word to him?
A. Yes; that is right.
Q. And you used the word “discretion”—what did you 

mean by that?
A. To give them a chance to walk off; if they wanted to.
Q. Did you instruct Lieutenant Collins to arrest all 

negroes who came on the propertv, if they did not leave?
A. Yes.
Q. That was your instructions?
A. Yes.
Q. And did you instruct him to arrest them because they 

were negroes ?



'



40

[fol. 85] A. Yes.
Q. Did you instruct him to arrest white persons who 

came on the park property with colored persons?
A. If they were doing something wrong, they are sup­

posed to be arrested.
Q. In other words, your instruction as to negroes was 

to arrest them if they came into the park, and refused to 
leave, because they were negroes; and your instruction was 
to arrest white persons if they were doing something 
wrong?

A. That is right.
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?

Mr. McAuliffe: Objection.
Judge Pugh: Read the question back. (Last question 

was read by the reporter) Objection over-ruled.
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?

Q. So, doing something wrong includes associating with 
negroes for the purpose of going into the park; is that 
correct ?

A. I don’t understand.
Q. You testified that your instructions to Lieutenant 

Collins, in respect to white people, was to arrest them if 
they were doing something wrong.

A. That is correct.
[fol. 86] Q. I am trying to find out what you meant by 
“something wrong”, and I asked you whether or not asso­
ciating with negroes who were in the park would be what 
you meant.

Mr. McAuliffe: Objection; we are not trying a racial 
case.

Judge Pugh: Objection over-ruled; answer the question.
A. I still say, if they were in the picket line—I gave him 

orders if they came out of the picket line on to my private 
property, I wanted them arrested.





41

Q. This is as to white persons?
A. That is right.
Q. As to negroes, did you give Lieutenant Collins any 

further instructions, other than to arrest them if they came 
on to the premises?

A. What is that ?
Q. As to negroes, other than instructing Lieutenant Col­

lins to arrest them if they came into the park, did you 
tell Lieutenant Collins anything else as to what his duties 
were, or should be, with respect to negroes who came on 
park property?

A. He knows what he is supposed to do.
Q. I am sure of that, but I am trying to find out what 

you told him to do.
A. I told him to give them sufficient time to walk off, or 

otherwise they would be arrested.
Q. Did you instruct him as to how he should determine 

who was a negro and who was not ?
[fol.87] A. No.

Q. You left that up to him? That was within his dis­
cretion; is that correct?

A. Yes.
Q. Did you make any exceptions to those instructions 

you gave him ?
A. No.
Q. So you instructed him, for instance, to arrest a negro 

maid, if she came on with white children ?
A. They usually call up—a white person would ask if 

it would be all right for them to bring the children in, if 
they didn’t do anything in the park, and we would say 
“It is all right.”

Q. You would allow it?
A. Yes.
Q. Have negroes ever attended Glen Echo Park prior to 

June 30,1960, as patrons ?
Mr. MeAuliffe: Objection.
Judge Pugh: Objection over-ruled. You may answer it.
A. Not to my knowledge.
(Lunch recess.)





42

1 :45 p.m.
Examination of the witness (resumed).

By Mr. Duncan:
Q. Before we adjourned for lunch, I was asking you 

about instructions you gave Lieutenant Collins with ref­
erence to excluding negroes from the park. Did you in- 
[fol. 88] struct Lieutenant Collins to exclude all negroes 
who appeared there ?

A. Yes, sir.
Q. Without regard to the way they conduct themselves?
A. Yes.
Q. Without regard to how they were dressed?
A. That is right.
Q. Mr. Baker, we have established that you had a con­

ference with Lieutenant Collins, on or about the 30th of 
June, 1960; I believe it was also your testimony that he 
came into your employ on or about the 2nd of April, 1960. 
I would like to ask whether, between the time he began 
working at Glen Echo and the time this occurrence hap­
pened, did you, yourself, have any conversation with Lieu­
tenant Collins, relating to his duties if negroes came to 
the park as patrons. Between April 2, 1960 and June 30, 
1960—between those two dates, did you have any conversa­
tion with Lieutenant Collins in which you gave him instruc­
tions as to what he should do in the event negroes presented 
themselves at the park as patrons?

A. He would come to me if anything happened, first.
Q. Let’s go back to the time when he first came into your 

employ. Did you meet with him to instruct him generally 
about your policies?

A. That is right.
Q. Didwou, vourself, meet with him ?
A. Yes.
Q. Can you give the approximate time?
A. The park opened April 2nd; I don’t know.
Q. Would you say that sometime around April 2nd you 

[fol. 89] had a conversation with Lieutenant Collins?
A. I would say so.





43

Q. Now in that conversation did you give him instruc­
tions relating to the treatment to be accorded negroes?

A. To everybody.
Q. Did you give him instructions about the treatment to 

be accorded to negroes specifically ?
A. Not that I know of.
Q. When did you first give him instructions after April 

2nd, 1960, relating to the treatment to be accorded to 
negroes!

A. I didn’t have to. That has been the policy of the 
park ever since it started.

Q. Is it your testimony that you did not, prior to June 
30th, give him that instruction ?

A. He got his instructions at the beginning of the season. 
He knew what to do.

Q. From whom did he get his instructions ?
A. From me and the Manager.
Q. All right. What instructions did you give him?
Judge Pugh: Haven’t you been all over that ?
Mr. Duncan: 1 took it through, month by month, and the 

first time he stated he gave any instructions was on the 
30th of June and that is the date of the arrest.

Judge Pugh: He lias now said that policy has been in 
effect since the park started. He said just before the arrest 
in this case Lieutenant Collins reported to him that there 
were negroes in the park and he told him to exclude them, 
[fol. 90] Tell them to get off the property.

By Mr. Duncan (continued):
Q. You testified you told Lieutenant Collins to arrest 

these negroes, if they didn’t leave, for trespass. Is that 
correct?

A. Within a reasonable time.
Q. And you said you used the word “trespass” ; is that 

correct?
A. Yes.
Q. Did you give him any instructions which section of 

the statute to make the arrest under?
A. I didn’t know of any section.





44

Q. Did you draw any distinction in your instruction 
between trespassing and wanton trespassing?

A. I really don’t know the difference.
Q. Do you recall ever having used the term “wanton 

trespass” to Lieutenant Collins?
A. No, I do not.
Q. You were relying on his knowledge, as a police officer, 

as to the mechanics of the matter?
A. That is right.
Q. As President of these two corporations, are you 

familiar with their advertising policies?
A. We have an agency.
Q. What agency is that ?
A. The advertising agency advertising the park. Do I 

have to answer that?
Judge Pugh: You just use the newspapers, don’t you?

[fol. 91] The Witness: We have an advertising agency.
Mr. Duncan: One of the specific defenses in the statute, 

in Section 5770 says “that nothing in this section shall be 
construed to include within its provisions the entry or 
crossing over such land unless such entry or crossing is 
done under a bona fide right.” We are trying to establish 
that the park advertised publicly, and did not exclude 
negroes in its advertising.

Judge Pugh: Objection over-ruled.

Cross examination (continued).

By Mr. Duncan:
Q. What is the name of that advertising agency?
A. Kal Ehrlich.
Q. Have you had any conferences with any representa- \ 

tives of that agency, relating to the advertising program 
which they would engage in on your behalf?

Mr. McAuliffe: I object to this line of questioning.
Judge Pugh: I think you are going too far afield, Mr. 

Duncan.
Mr. Duncan: One defense to the statute is that I think 

if I can show that the park invited the public, generally,





45

to come use these facilities, without any mention being 
made of race—

Judge Pugh: The advertising didn’t say anything about 
negroes!

Mr. Duncan: No.
[fob 92] Mr. McAuliffe: Of course the State attempted to 
introduce evidence to show that these five defendants were 
on a picket line and had full knowledge of the park policy, so 
the advertising would be completely irrelevant. The evi­
dence is that they came right off the picket line and went 
into the park, so the evidence is clear that they were not 
misled, but that they had full knowledge of the park policy 
when they went in, and on that basis we object to tins as 
being irrelevant.

Mr. Duncan: Mr. McAuliffe’s recollection is different 
from mine.

Judge Pugh: I don’t know what your defense is. Your 
plea up to now is “not guilty.” You didn’t make an opening 
statement. I don’t know exactly what your defense is.

Mr. Duncan : They were there under a claim of right, and 
one of the defenses is that they were invited to come there 
and I am trying to establish the fact that the park does 
advertising, without mentioning race. I proffer, through 
this witness and through witnesses I will recall, to show 
that.

Judge Pugh: On that proffer the objection will be over­
ruled.

Cross examination of the witness (continued).

By Mr. Duncan:
Q. Does Glen Echo, operating through its advertising 

agency, advertise in the Washington, D. C. area ?
A. I would say so.
Q. Does it advertise in the Press!

[fol. 93] A. What do you mean “Tin* Press!”
Q. By newspapers!
A. Yes.
Q. By radio!
A. Yes.





46

Q. And by television!
A. Yes.
Q. On the back of Capital Transit Busses?
A. No.
Q. It does not?
A. No, sir.
Q. Do any of the advertisements which the park makes 

refer to racial policies of the park?
A. I don’t get that.
Q. Do any of the advertisements which you have referred 

to, refer to the racial policies of the park ?
A. I don’t think so.
Q. Do any of them state that negroes are not welcome?
A. They didn’t say they were.
Q. Are they addressed to the public generally?
A. I would say so.
Q. Do you happen to know what your advertising budget 

is for the year?
Mr. McAuliffe: Objection.
Judge Pugh: What is the question? (Last question read 

by the reporter). Objection sustained. Who determines the 
policy of the Glen Echo Park, of which you are President, 
[fol. 94] Is that also determined by some act of the cor­
poration?

A. Its just been that way for years and years; that’s 
all.

Judge Pugh: You mean it is just handed down by 
custom?

A. Yes.
Judge Pugh: Do you admit Chinese?
A. Yes.
Judge Pugh: Filipinos?
A. Yes.
Judge Pugh: And somebody from India; do you admit 

them ?
A. Yes.





47

Judge Pugh: And the only ones you exclude are the 
negroes?

A. Yes.
Judge Pugh: There is no official act of the corporation 

that bears that out; it is just handed down from year to 
year?

A. That is right.

Cross examination (resumed).

By Mr. Duncan:
Q. Who in the corporate hierarchy determines that 

policy?
A. Who what ?
Q. Who in the corporation determines that that policy 

shall continue in effect?
A. We all do.
Q. Are you referring to officers or stockholders?
A. Whoever is in charge at that time. They know that 

that is the way it is supposed to be.
Q. Is this a closely held corporation?
A. Yes, sir.

[fol. 95] Q. How many stockholders are there ?
A. Three.
Q. How many different persons serve as officers?
A. Three.
Q. Are they the same three who are the stockholders?
A. Yes.
Q. And you say that this has always been the policy of 

the park?
A. That is right.
Judge Pugh: Has your corporation filed any civil suits, 

or asked the Court for any injunction to prohibit colored 
people from coming on your property?

A. No, sir.
Q. It never has done that?
A. No, your Honor.





48

By Mr. Duncan (continued):
Q. Mr. Baker, at any time in the past five years has 

there ever been a meeting of the Board of Directors, at 
which the racial policies of the park were considered and 
discussed?

A. No, sir.
Q. Not in the past five years?
A. No, sir.
Q. On the night of June 30th, did Lieutenant Collins 

speak to you about these specific defendants?
A. I wasn’t there.
Q. You were not where, sir?
A. I wasn’t at the park on the night of June 30th.

[fol. 96] Q. Did you have a discussion with Lieutenant 
Collins on the 30th of June, I960, about the racial policy 
of the park?

A. I don’t remember.
Mr. Duncan: I have no further questions.

Examination by the Court.

By Judge Pugh:
Q. I think you testified, on direct, or cross examination, 

that your corporation had deputy sheriffs, or somebody 
similar to Lieutenant Collins' position, at the gate of the 
Glen Echo Amusement Park ; is that correct ?

A. Yes.
Q. On this particular night did you have such a person 

at the entrance to the park, so far as you know?
A. They were supposed to be there.
Q. Is that officer directed to tell the negroes not to come 

in?
A. I left the General Manager there to oversee every­

thing.
Q. Is he here in Court today?
A. Yes.





49

Redirect examination.

By Mr. McAuliffe:
Q. Did you have a conversation with Lieutenant Collins 

on the 30th day of June, at any time or any place?
A. When the newspaper people came out and said that 

there was going to be something going on that night, I told 
[fol. 97] him to continue the policy.

Q. Where were you when you spoke to him at that time?
A. That was in the daytime, in my office.
Q. And was that at the Glen Echo Amusement Park?
A. Yes; it was.
Q. And that is when you had this conversation that 

you related to the Court, in which you instructed Lieutenant 
Collins as to how this situation was to be handled?

A. I don’t get that.
Q. Is that when you had this conversation, which you 

previously related, in which you instructed Lieutenant Col­
lins how the situation with respect to negroes was to be 
handled?

A. That is right.
Q. And that was prior to the time the five defendants 

in this case came on to the property and were arrested by 
Lieutenant Collins? •

A. That is right.
Q. Do you know how long the Glen Echo Amusement 

Park lias been in existence, and how long it has maintained 
a policy of segregation ?

A. Fifty-one years.
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.
Mr. McAuliffe: That is all.



t



50

[fol. 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.

Q. Did you, on the 30th of June, 1960, see Lieutenant 
Collins at all, anywhere ?

A. I saw him in the afternoon.
Q. What time in the afternoon; approximately?
A. Three thirty or four o’clock.
Q. Where did you see him ?
A. When he came into the office and told me about the 

reporters.
Q. What office did he come into?
A. My office.
Q. Located where?
A. At the entrance to the park.
Q. On park property?
A. Yes.
Q. Did you have a conversation with him at that time?
A. Yes.
Q. Will you tell the Court, please, what conversation 

you had with Lieutenant Collins at that time ?
Judge Pugh: Haven’t you testified to that before ?

[fol. 99] A. As far as I know.
Mr. Duncan: In response to the question I put, he said 

he didn’t talk to Lieutenant Collins on the 30th of June.
Judge Pugh: All light. Go ahead, answer it.
A. When the reporters came that afternoon, when they 

heard about it, he came in and told me that there would be 
trouble that night, and we went over the same thing.

Q. Did you talk to him subsequently, at the time these 
defendants were arrested?

A. No.



■



51

Q. Do you know what time they were arrested?
A. No.
Q. So Lieutenant Collins did not consult you prior to 

the time they were arrested?
A. No. My General Manager took care of that.
Q. In your instructions to Lieutenant Collins to arrest 

negroes for trespassing, were they arrested for any other 
reason than that they were negroes?

A. You asked me before about anybody else and I told 
you yes.

Q. Well, were negroes to be arrested for trespassing— 
was that determination made on the basis of the fact that 
they were negroes? You wouldn’t arrest anybody else that 
just walked into the park, would you, Mr. Baker?

A. If they were picketing and they came out of the line, 
white or colored, we are supposed to give them due notice 
and—
[fol. 100] Q. (interrupting the witness) Well, suppose a 
negro wasn’t picketing, but just came out there and walked 
into the park, would your instructions apply to him?

A. Lieutenant Collins would get in touch with the gentle­
man, and tell him that he wasn’t wanted in the park.

Q. And he wasn’t wanted solely because he was a negro, 
isn’t that correct ?

A. So far as I know.
Q. You determine the policy of this corporation, don’t 

you?
A. Yes.
Q. Well, is there any doubt in your mind that that is 

why you told him he wasn’t wanted?
A. No.

Re-redireet examination.

By Mr. McAuliffe:
Q. Who are the other officers of this corporation?
A. My brother.
Q. What is his position?
A. Secretary and Treasurer.
Q. What is his name ?
A. Sam Baker.





52

Q. Who is the other officer of the corporation?
A. My wife.
Q. And have you and your brother, and your wife, con­

ferred, and are you in agreement with respect to the policy 
to be followed at Glen Echo Park?

A. We sure are.
[fol. 101] Q. And who is your General Manager at the 
Glen Echo Park ?

A. Leonard Woronoff.
Q. And is he instructed to carry out all the policies 

by you and your brother and your wife, with respect to the 
operation of the park, as you see fit ?

A. He is.
Q. You take the position, Mr. Baker, that as the owner 

of this private property, or as President of the corporation, 
you have the right to determine who shall come on to your 
property, and the right to arrest them if they do not leave?

A. Yes.
Mr. McAuliffe: I object to that.
Judge Pugh: Objection sustained.

F rancis J. C o llin s , recalled to the stand for further 
examination by counsel for the plaintiff, testified

Direct examination.

By Mr. McAuliffe:
Q. Directing your attention to State’s Exhibit #2 , will 

you take this pen which I hand you and mark on there 
with an “X”, and circle that X, in the approximate area 
where the five defendants were at the time that you talked 
with them and had occasion subsequently to arrest them, 
some five minutes later. Make a large “X” and a circle, 
so we can see it. (The witness complies).
[fol. 102] Mr. McAuliffe: You may cross-examine him.



'



53

Cross examination.

By Mr. Duncan:
Q. Have you ever seen this plat before, Mr. Collins? 
A. Yes, sir.
Q. Where did you see it, Mr. Collins ?
A. In the State’s Attorney’s office.
Q. When?
A. Thursday of last week.
Q. Was that the first time you had seen it ?
A. Yes, sir.
Mr. Duncan: I have nothing- further.

L eonard W oronoff, 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 testi­
fied upon

Direct examination.

By Mr. McAuliffe:
Q. What is your name, and what is your address ?
A. Leonard Woronoff, 1678 North 21st Street, Arlington, 

Virginia.
Q. What is your position, if any, with Rekab, Inc., and 

Kebar, Inc.?
A. General Manager of Glen Echo Amusement Park.
Q. And as General Manager what are your duties and 

[fol. 103] responsibilities?
A. My duties are to execute the policies as set forth 

by the officers of the corporation, the owners of the amuse­
ment park.

Q. What are those policies with respect to the admission 
of negroes to the park as patrons?

A. The policy has been and is to maintain the park on 
a segregated basis.

Q. What are your duties and responsibilities with re­
spect to the special police who are on duty and hired by 
Rekab, Inc., and Kebar, Inc., at Glen Echo Amusement 
Park?





54

A. Well I issue instructions. The officers there, our 
security force, report to me, and I am responsible for their 
conduct.

Q. Directing your attention to the date of June 30th, 
prior to the arrest of the five defendants in this case, did 
you have occasion to discuss with Lieutenant Collins what 
action, if any, he should take with respect to the five defen­
dants in this case?

A. Yes, sir.
Q. And when was%that discussion held, Mr. Woronoff ?
A. That was held when I was notified in the office that 

these defendants had, in fact, gone into the park and were 
at that time on the carousel.

Q. From whom did you receive such notification?
A. By Lieutenant Collins.
Q. As the result of gaining that information, what did 

you do, as the General Manager of Glen Echo Amusement 
[fol. 104] Park and what instructions did you give to 
Lieutenant Collins?

A. I instructed Lieutenant Collins to notify them that 
they were not welcome in the park, and we didn’t want them 
there, and to ask them to leave, and if they refused to leave, 
within a reasonable length of time, then they were to be 
arrested for trespass.

Q. Are you familiar with Glen Echo Park?
A. Yes, sir.
Q. And on whose property is the carousel located in 

Glen Echo Park?
Mr. Duncan : I object to that.
Mr. McAulifTe: I will withdraw the question.
Q. Is the Glen Echo Park in Montgomery County, Mary­

land?
A. Yes, sir.
Mr. McAulifTe: Cross-examine him.





55

Cross examination.

By Mr. Duncan:
Q. Mr. Woronoff, you said, as General Manager of the 

park, you were responsible for the conduct of the National 
Detective Agency officers; is that right?

A. Yes; while they are in our employ at the park.
Q. Does the National Detective Agency make their em­

ployees available to you, and you direct them as you see 
fit?

A. That is correct.
[fol. 105] Q. How many of those officers are also Deputy 
Sheriffs of Montgomery County?

A. At the present time there are two.
Q. Who, in addition to Mr. Collins!
A. James E. Honniger.
Mr. Duncan: I have no further questions.
Mr. McAuliffe: If the Court please, the State rests.

M otion  to Q uash  t h e  W arrants of A rrest , etc . 
and S ta tem en t  T hereon

Mr. Duncan: May it please the Court, at this time I 
would like to move to quash the warrants of arrest, or to 
move for their dismissal, on a number of grounds which I 
would like to urge on the Court, and the first ground is 
constitutional grounds, namely, that the application of the 
Maryland trespass statute, Section 577, under the circum­
stances of this case, is unconstitutional and constitutes a 
denial of due process of law. Marsh v. Alabama, 326 U. S. 
501. The State of Maryland may not assist the owners 
of the park here in carrying out a pattern of private racial 
discrimination.

The Supreme Court held in 1947 that although the cove­
nants were valid as private agreements, the State could 
not enforce them, so we say here the discrimination which 
may exist at Glen Echo Park is a private matter between 
the park and the would be negro patrons, but that Glen





56

Echo cannot call upon the State of Maryland to enforce 
and carry out that policy.
[fol. 106] In this case I think it is quite clear that the 
action of the state is resorted to for the purpose of en­
forcing racial discrimination. They were excluded from 
the park, not because they were trespassers, but because 
they were negroes. We contend that these defendants are 
entitled to the equal protection of the law.

Judge Pugh: Are the property owners entitled to the 
equal protection of the lawf

Mr. Duncan: Most assuredly. We contend further that 
the application of the statute in this way deprives the 
defendants of due process of law, because it results in their 
arrest. We advance a second constitutional argument, your 
Honor, and that is the interference by the State officers 
in this case deprives these defendants of statutory rights 
which are secured to them by the laws of the United States. 
I refer specifically to Sections 1981, 1982 and 1983 of Title 
42 of the United States Code. As your Honor is aware, 
Section 1981 provides that every person within the jurisdic­
tion of the United States shall have the same right, among 
other things, to make and enforce contracts, as is enjoyed 
by white persons, to purchase, acquire, hold and sell real 
property. It is declared to be a right which everyone shall 
enjoy. In Section 1983 it is made actionable for any person, 
acting under color of law, to deprive anyone in the exercise 
of his Section 1981 right. We submit that the action of 
Lieutenant Collins in this case, in his capacity as a State 
police officer, interfered with the equal enjoyment of the 
[fol. 107] right which these defendants had to attempt to 
enter into or make contracts with Glen Echo Amusement 
Park. Williams v. Kansas City, 104 Fed. (2nd). So on 
these two constitutional grounds we move that the warrants 
of arrest be quashed and dismissed on the ground that the 
statute as applied to these facts is unconstitutional.

And then we make the same motion on a number of 
State grounds. First, the Maryland statute, Section 577, 
begins as follows: “Any person or persons who shall enter 
upon or cross over the premises of private property, after 
having been duly notified by the owner, or his agent, not 
to do so, shall be deemed guilty of a misdemeanor.” This





57

section has only been considered one time by the Court 
of Appeals of Maryland. Krauss v. State, 216 Md. 369. 
That was a case involving the entry into a garage, by em­
ployees of a finance, company who were undertaking to 
repossess an automobile which was in the garage. The 
owner of the garage land had a lien on the automobile 
and had had discussions with the defendants prior to their 
entry, when he notified the defendants that he had a lien 
on the automobile. Notwithstanding this the defendants 
entered the land and removed the automobile. Upon con­
viction, and appeal to the Court of Appeals, that conviction 
was reversed on the ground that there was insufficiency 
of notice beforehand. Here we submit, and T think the testi­
mony is uncontradicted on this point—Mr. Collins, himself, 
testified that his first communication was after they had 
come on to the land, and T submit to the Court that the 
statute cannot be violated. We base our motion to dismiss 
[fol. 108] on the ground that the statute, by its very terms 
applies only to wanton trespass. Reading again from the 
statute: “It being the intention of this section only to pro­
hibit any wanton trespass upon the private property of 
others.” We have been unable to find a case which defines 
the phrase “wanton trespass.” The Court of Appeals of 
Maryland, however, has construed the meaning of the word 
“wanton” in other circumstances, and I cite on that Dennis 
v. Baltimore Transit Co., 189 Md. 610, 617, and there, in 
discussing the meaning of the word “wanton” the Court 
of Appeals said “the word ‘wanton’ means characterized 
by extreme recklessness and utter disregard for the rights 
of others” and T submit that if this Court were to take that 
as a test of wanton trespass, then the evidence would have 
to show that these defendants entered Glen Echo Park 
with extreme recklessness and complete disregard of the 
rights of others.

Glen Echo advertised to the public generally. Its ad­
vertisements were not restricted as to race and any member 
of the public was entitled to respond to this advertisement 
and even if it should eventuate that negroes were excluded 
wantonness under the statute is further negated by the 
fact that all of these defendants had tickets, and so far 
it doesn’t appear where they obtained the tickets, but there





58

is testimony that the tickets were transferable. They had 
tickets on the merry-go-round, and Mr. Collins testified 
that he saw the ticket in Mr. Griffin’s hand. I submit that 
a person who enters an amusement park and comes into 
possession of a ticket, whether purchased by him or given 
to him by someone else, cannot be said to be guilty of 
wanton trespass.
[fol. 109] The third ground we base our motion on is that 
the statute, section 577, provides that—if I may read that 
section—“and further provided that nothing in this section 
shall be construed to include in its provisions the entry 
upon or crossing over any land when such entry or crossing 
is done under a bona fide claim of right or ownership of 
said land.” Now, we submit that these defendants were on 
the land in the exercise of several bona fide rights. They 
were publicly invited on the land. Secondly, upon coming 
on the land they came into lawful possession of tickets, 
which, in the ordinary practice of the park, were clearly 
transferable. And it can be urged on their behalf that they 
have a constitutionally protected right to be on the land. 
If the federal statute gives to them the same right to make 
contracts as white persons, at least they were on the land 
in the exercise of this federal statutory right and they 
cannot be said to be engaged in a wanton trespass or that 
this was not a bona fide claim of right.

For all of these reasons we urge that the warrants in 
these cases as against all five defendants should be dis­
missed and I move for a finding of not guilty, based on 
the insufficiency of the evidence.

D en ia l  of M otion  for a D irected  V erdict

Judge Pugh: The motion for a directed verdict is denied.





59

[fol. 110] K ay F reem an , a witness of lawful age, called 
for examination by counsel for the defendants, and having 

i first been duly sworn, according to law, was examined and 
testified as follows, upon

Direct examination.

By Mr. Duncan:
Q. For the record, state your name and address.
A. Kay Freeman; 732 Quebec Place, N. W.
Q. Miss Freeman, are you acquainted with the five de­

fendants in this case?
A. Yes.
Q. Do you know them each by name ?
A. Yes.
Q. How long have you known them ?
A. I know some of them for different lengths of time. 

I guess the longest would be two years.
Q. Did you have occasion to be present at Glen Echo 

Amusement Park on the night of June 30th, 1960?
A. Yes. •
Q. Were you in the company of these defendants, and 

other persons?
A. Yes.
Q. Did you enter the park?
A. Yes, I did.
Q. Did you enter it in company with these defendants?
A. Yes.
Q. Were you on the merry-go-round at the time they 

were arrested ?
[fol. I l l ]  A. Yes.

Q. Did you see them arrested?
A. Yes.'
Q. Were you arrested?
A. No.
Q. Did you see each of these defendants arrested?
A. Yes.
Q. Prior to the time they were arrested, did they have 

tickets to ride on any of the rides?
A. We all had tickets.



■



60

Q. Where did you acquire these tickets?
A. They were given to us by friends.
Q. W7hite friends?
A. Yes.
Q. And they had made the purchase?
A. That is right.
Q. Prior to the time that you entered the premises of 

the Glen Echo Amusement Park, did anyone tell you 
personally that you should not enter?

A. No one did.
Q. I mean anyone representing the park.
A. No one.
Q. Did Mr. Woronoff say anything to you!
A. No.
Q. Did Mr. Collins say anything to you ?
A. No.
Q. Were there any signs posted anywhere around there?
A. I didn’t see them.

[fol. 112] Q. The conduct of these defendants at all times 
was proper, wasn’t it?

Mr. McAuliffe: Objection.
Mr. Duncan: I will rephrase it.
Q. What was the conduct of these defendants, during 

the time they were in the park ?
A. Their conduct was orderly.
Q. Have you ever seen any advertisements relating to 

Glen Echo Amusement Park?
A. Yes every day, on television, on street cars and on 

radio.
Q. You say you went to Glen Echo in a group, with these 

defendants?
A. That is right.
Mr. Duncan: I have no further questions.





61

Examination by the Court.

By J  udge Pugh:
Q. Were you told to get out of the park?
A. Yes, I was asked to leave.
Q. They told you to leave?
A. That is right.
Q. And you left ?
A. No; I didn’t leave.
Q. Were you on the merry-go-round?
A. Yes; I was.

[fol. 113] Q. And Lieutenant Collins asked you to leave?
A. Yes; he asked me to leave.
Q. Did you go along with the other five when they were 

taken to the office ?
A. No; they did not ask me.
Q. You stayed on the merrv-go-round?
A. Yes.
Q. And you stayed on there and rode?
A. I did not - ride. They did not start the merry-go- 

round up until after I left.
Q. And then you left the park?
A. Yes.

Cross examination.

By Mr. McAuliffe:
Q. Miss Freeman, this advertisement that you read, is 

that what brought you out to Glen Echo Park on June 
30th?

A. I wanted to use the facilities and I thought this 
would be a good way of doing it.

Q. You thought you would be able to use the facilities 
of Glen Echo Park?

A. I thought I might.
Q. Were you led out there by those advertisements ?
A. It had been rumored.
Q. What had been rumored?

[fol. 114] A. The segregation policy.
Q. So you knew about the segregation policy ?





62

A. I didn’t know. I was told about it.
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.
Q. They protested with respect to a segregation policy 

that you thought might exist in the park?
A. That is right.
Q. You weren’t sure it existed, but you were taking 

signs along, just in case it did exist; is that correct?
A. That is right.
Q. How many signs did you have ?
A. I don’t know.
Q. Did these five defendants have signs ?

[fol. 115] A. I don’t know. I think we all had signs, at 
one time or another.

Q. You mean these five defendants then, don’t you?
A. I cannot speak for them.
Q. They knew you had signs; didn’t they ?
A. Yes.
Q. You all came out there, in a group, and you had 

these signs which protested against the segregation policy 
of Glen Echo Amusement Park; isn’t that right, Miss 
Freeman?

A. They protested the policy that we thought existed. 
It was not a fact until we were arrested.

Q. When you got out there to Glen Echo, wasn’t Mr. 
Henry with you?

A. He was in the group.





63

Q. Do you know Mr. Laurence Henry?
A. Yes.
Q. Didn’t he confer with Lieutenant Collins shortly after 

you arrived on the scene ?
A. 1 don’t know. I wasn’t near him then.
Q. When you arrived at the Glen Echo Amusement Park, 

what did you do; put your signs to one side and start to 
walk in ?

A. Some of us carried signs; others didn’t.
Q. What did you do?
A. I walked around in a circle.

[fol. 116] Q. Walked around in a circle?
A. That’s right.
Q. Since you came there, expecting to go into Glen Echo 

Amusement Park, and were lead on ,by these advertise­
ments, why didn’t you just walk right into the park?

A. Because everybody else didn’t just walk right into 
the park immediately.

Q. Do you mean these five defendants?
A. And other persons.
Q. What did these five defendants do and other persons 

do?'
A. We had a picket line.
Q. Didn’t you try to enter Glen Echo Park before you 

set up the picket lines ?
A. No.
Q. Then you knew the policy of Glen Echo Park was 

segregated, didn’t you ?
A. No; we didn’t know that until we were arrested.
Q. You mean you set up a picket line before you knew 

the park was segregated ?
A. That is right.
Q. Why did you do that if you didn’t know the park was 

segregated ?
A. Because we thought it was segregated.
Q. But you didn’t bother to find out before you set up 

[fol. 117] the picket line?
A. No, we did not.
Q. Wasn’t Mr. Henry your so-called Leader?





64

Mr. Duncan: I object to that, your Honor.
Judge Pugh: The objection is sustained.

Examination by the Court.

By Judge Pugh:
Q. How many car loads of you came out there that night? 
A. Five or six.
Q. Did you have all these signs with you ?
A. Yes, we did.
Q. Did you go out there to try to make them change 

their policy?
A. I went to try to use the facilities of the park.
Q. Were you paid anything to go out there ?
A. I was not.

Cross examination (continued).

By Mr. McAuliffe:
Q. Do you know of anyone who did receive pay for going 

out there to Glen Echo Park?
A. No, I do not.
Q. Who contacted you, Miss Freeman, to ask you to go 

out to Glen Echo Park?
[fol. 118] Mr. Duncan: Objection.

Judge Pugh: The objection is sustained.
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.
Q. Since you weren’t sure of the policy of the park, why 

didn’t you try to buy a ticket yourself?
A. It wasn’t necessary for me to try to buy a ticket, if 

somebody had already bought them for us.
Q. And they paid for them ?
A. That is right.
Q. Did you reimburse them ?
A. I didn’t personally reimburse anybody.
Q. Who reimbursed them, Miss Freeman, for your ride? 
A. I didn’t pay for a ride.
Q. You paid for a ticket, didn’t you ?





65

A. I did not personally pay for a ticket.
Q. Who paid for your ticket ?
A. I think Paul Dietrich paid for it.
Q. He just gratuitously paid for your ticket ?
A. That is right.
Q. And you didn’t go up to the ticket booth and try to 

[fol. 119] purchase any tickets yourself?
A. No, I did not.
Q. And you didn’t know whether they would sell you a 

ticket or not. You just decided it would, be better to have 
Paul Dietrich to get you a ticket; is that right!

A. He offered his services and I didn’t see why I should 
have to pay for a ticket if somebody is going to buy it for 
me.

Q. And Paul Dietrich is a white person; is that right?
A. Yes; he is.
Q. Now, you were on the carousel, or the merry-go-round, 

were you not ?
A. Yes.
Q. Were you riding with these five defendants?
A. I was near them.
Q. Well; how near!
A. Perhaps two or three rides away.
Q. And when you saw these five defendants being ar­

rested, and taken away, did you remain on the carousel?
A. Yes; I did.
Q. For how long did you remain there ?
A. I remained for about thirty minutes.
Q. A half an hour?
A. That is right.
Q. Did the carousel start up during that time?

[fol. 120] A. No.
Q. Was there a crowd around there?
A. Yes.
Q. Did you hear any heckling ?
A. Yes.
Q. And did you see any park policemen around there?
A. Yes.
Q. Did you talk with anyone?
A. Lieutenant Collins.
Q. And did he tell vou about the policy of the park ?
A. Yes.





6 6

Q. Did he warn you to leave the park property!
A. Yes.
Q. At the end of thirty minutes, did you leave the park 

property!
A. I left after the defendants had been arrested.
Q. So your best recollection is that it was approximately 

half an hour that you sat on that carousel, and the carousel 
did not start up!

A. No, it did not.
Q. Did it start up after you left!
A. I don’t know.
Q. And you just walked out, with some other friends of 

yours; is that right!
A. That is right.

[fol. 121] Q. Since you weren’t arrested—incidentally, you 
went back in the picket line, didn’t you, Miss Freeman?

A. Yes, I did.
Q. Since you weren’t arrested, you just walked out of 

the park and took a place in the picket line; is that right?
A. Yes.
Q. And no one told you you should not enter Glen Echo 

Park?
A. No.
Q. And you didn’t bother to ask anybody before you set 

up that picket line ?
A. I didn’t set up the picket line.
Q. Before you took part in it. Before you started walk­

ing in this circle.
A. Yes.
Q. Who told you were to walk in this circle ?
A. Well, we couldn’t—
Q. (interrupting the witness) Y/ait a minute. How did 

you know where to walk?
A. Picket lines are usually set up—
Q. (interrupting the witness) I want to know how you 

knew where to walk.
A. I knew where the entrance to the park was.
Q. The entrance to the park was a short distance away 

from where you were walking; wasn’t it ?
[fol. 122] A. Yes.





67

Q. I want to know how you know whore to walk in this 
circle ?

A. What do you moan!
Q. Didn’t somebody toll you to walk there?
A. It was a spontaneous act.
Q. A spontaneous perfect circle?
A. It was not a perfect circle.
Q. And you looked on no one as your leader out there?
A. We were acting, for the most part, as individuals.
Q. It is that little least part that we are interested in. 

In that little part, who told you what to do? You say 
“for the most part you acted as individuals” indicating that 
there was a slight part that you didn’t and in that slight 
part, who told you what to do ?

A. No specific individual.
Q. You had no established leader ?
A. No.
Q. And you didn’t consider Mr. Laurence Henry to be 

your leader ?
' A. No.

Q. Nor anyone else there to be your leader?
A. There were those who, perhaps—I can’t say that we 

had one specific leader. I can’t say that.
Q. You had several persons who were in a capacity of 

[fol. 123] leadership; is that what you started to say?
A. Well, certain people said certain things, and if we 

agreed we went along with it, but there were no definite 
persons who did everything.

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.
Q. Your best estimate now would be that it was at least 

an hour?
A. About an hour.
Q. Do you now recognize each of the five defendants 

seated at this counsel table as being in that line, which 
carried signs protesting against the park’s segregation





68

policy, which line protested lv.. an hour before these defen­
dants entered into the park?

Mr. Duncan: I object to that. I am not sure what its 
relevancy is.

Judge Pugh: Well, you put her on the stand. It is proper 
cross-examination. Objection over-ruled.

Q. Do you recognize eadh of these five defendants, seated 
[fol. 124] at the counsel table, as being in that picket line, 
that circle of pickets which you have described as being 
there for about an hour, carrying placards protesting the 
segregation policy of Glen Echo Park? Do you recognize 
these five defendants as being in that line and having been 
there for approximately an hour prior to the time that you 
and they entered the park?

A. I think that most of them were. I am not positive. It 
was a rather large line. I cannot be specific and say that 
each and every one was in the line.

Q. To the best of your knowledge and recollection, they 
were all there; is that correct ?

A. Perhaps.

Redirect examination.

By Mr. Duncan:
Q. Miss Freeman, to your knowledge, have any of your 

friends, or any persons known by you, ever used the park 
prior to this arrest?

Mr. McAuliffe: Objection.
Judge Pugh: Objection over-ruled.
A. No.
Q. You said that there was some heckling. Who was 

[fol. 125] heckling whom?
A. Well the defendants and other persons who were on 

the merry-go-round were being heckled by the patrons of 
Glen Echo, and also by some of the people who were work­
ing there.



.



69

Examination by the Court.

By Judge Pugh:
Q. "Was the heckling a loud noise!
A. Yes.
Q. How many people were in i t !
A. I don’t know, but the merry-go-round was almost sur­

rounded.
Q. In other words, it looked like anything might break 

out there; a fight ?
A. It wasn’t that kind of heckling.
Q. How many people would you say were surrounding 

the merry-go-round when this incident took place!
A. Perhaps forty or so.
Q. You people all knew, when you left "Washington, that 

this park was segregated; didn’t you ?
A. We didn’t know it for a fact.
Q. What did you carry the signs for?
A. We were under the impression that it was segregated.
Q. And you went out there to impress upon them that it 

[fol. 126] shouldn’t be segregated ? 
shouldn’t be segregated?

A. I went to see if I could get in.
Q. What did you get together with a crowd for? Why 

didn’t you go by yourself?
A. I would never go to any amusement park alone.
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 segregated.
Q. Well you all anticipated that there would be some 

trouble; didn’t you ?
A. Yes.
Q. How many men were in the party?
A. It was pretty well mixed.
Q. Well all these were grown men, weren’t they!
A. There weren’t so many grown men.
Q. You went out there looking for trouble; didn’t you ?
A. Not trouble; no.
Q. You went out there to try to force them to allow you 

to go into the park; didn’t you ?





70

A. Not to force them to do anything.
Q. Why didn’t you stay out of the park, instead of going 

in there?
A. I wanted to know exactly what would happen.

By Mr. McAuliffe:
Q. You found out what would happen; didn’t you ?

[fol 1273 A- Yes.

Examination (continued).

By Mr. Duncan:
Q. You weren’t arrested, were you?
A. No.
Q. You were in the park, weren’t you?
A. Yes.
Q. How old are you?
A. Nineteen.
Q. Do you know how old Miss Greene is?
A. I think Miss Greene is eighteen.
Q. Do you know how old Mr. Saunders is?
A. Twenty-two.
Q. How old is Mr. Washington?
A. I don’t know.
Q. How old is Mr. Proctor?
A. I think he is either nineteen or twenty.
Q. Are you a student at any University of learning in 

this city?
A. Yes, I go to Howard University.
Q. The Court asked you if you anticipated trouble when 

you went to the park.
A. No, not trouble.
Q. Did you intend to cause any trouble?
A. No.
Q. Did you intend to be disorderly?

[fol. 12S] A. No.
Q. Did you intend to force your way in anywhere?
A. No.
Q. Had you discussed what you would do if there were 

trouble?





71

A. We didn’t expect any real trouble, as far as physical 
violence is concerned.

Q. Would you say that most of the people that were 
in the group that accompanied you were the same age as 
yourself and these young people here!

A. Yes.
Q. Now have you, or anyone with whom you were asso­

ciated, made any efforts to contact the ownership and 
management of the park for the purpose of gaining ad­
mission, prior to the 30tli of June?

A. I have not myself.
Mr. Duncan: We have no further evidence to offer, your 

Honor, and I would like to renew my motions.
Judge Pugh: We will take a short recess.
(Recess.)
Mr. McAuliffe: Your Honor, for purposes of the

record, may we have it shown on the record that State’s 
[fol. 129] Exhibit 3 is the deed, which would be Liber 2072 
folio 448, and further for purposes of the record, that the 
corporation record of Montgomery County, Liber 3G CIvW 
folio 216, the Articles of Incorporation of Rekab, Inc., 
would be identified as State’s Exhibit 4A and that the 
Montgomery County official corporate record, Liber 36 
CKW folio 208, the Articles of Incorporation of Kebar, 
Inc. would be identified as State’s Exhibit 4B. All of 
them have been admitted in evidence.

Judge Pugh: Y7ou just want to change the numbers?
Mr. McAuliffe: Yes.
Judge Pugh: Any objection?
Mr. Duncan: No, your Honor.
Judge Pugh: Change the numbers Miss Reporter. (Ex­

hibit numbers were changed in accordance with Mr. 
McAuliffe’s request.)

Mr. Duncan: I renew my motion for a directed verdict, 
and to quash the warrants.

Judge Pugh: The motion is over-ruled.





72

[fol. 130]
ORAL ARGUMENT BY MR. McAULIFFE

ORAL ARGUMENT BY MR. DUNCAN

REBUTTAL ARGUMENT BY MR. McAULIFFE

J udge P u g h ’s Oral Op in io n

It is very unfortunate that a case of this nature comes 
before the criminal court of our State and County. The 
nature of the case, basically, is very simple. The charge 
is simple trespass. Simple trespass is defined under Sec­
tion 577 of Ar’.iele 27 of the Annotated Laws of Maryland, 
which states that “any person or persons who shall enter 
upon or cross over the land, premises, or private property 
of any person or persons in this State, after having been 
duly notified by the owner or his agent not to do so shall 
be deemed guilty of a misdemeanor.” Trespass has been 
defined as an unlawful act, committed without violence, 
actual or implied, causing injury to the person, property 
or relative rights of another. This statute also has a pro­
vision in it which says that it is the intention of the Legis­
lature as follows: “It is the intention of this section only 
to prohibit any 'wanton trespass upon the private land of 
others.” Wanton has been defined in our legal dictionaries 
[fol. 131] as reckless, heedless, malicious; characterized 
by extreme recklessness, foolhardiness and reckless dis­
regard for the rights or safety of others, or of other con­
sequences.

There have been many trespass cases in Maryland. As 
a matter of fact, there is one case now pending before the 
Court of Appeals of Maryland where the racial question 
has been injected into a disorderly conduct case, and that 
is the case of “State of Maryland versus Dale H. Drews”, 
decided some few months ago. In that case, Judge Men- 
chine filed a lengthy written opinion, in which he touched 
upon the rights of a negro to go on private property,





73

whether it is a semi-public or actually a public business, 
and in that case Judge Menchine said as follows:

“The rights of an owner of property arbitrarily to re­
strict its use to invitees of his selection is the established 
law of Maryland.” This Court agrees with that opinion, 
and unless that case is reversed by the Court of Appeals of 
Maryland, at its session this Fall", that will continue to be 
the law of Maryland.

That statement by Judge Menchine is based upon au­
thorities of this State, and not too far back, in the ease 
of Greenfeld versus the Maryland Jockey Club, 190 Md. 
96, in which the Court of Appeals of this State said: “The 
rule that, except in cases of common carriers, inn-keepers 
and similar public callings, one may choose his customers, 
is not archaic.”

If the Court of Appeals changes its opinion in the 
[fob 132] 190 Maryland case, then we will have new law 
in this State on the question of the right of a negro to go 
on private property after he is told not to do so, or after 
being on it, he is told to get off.

In this County, as well as many, many counties in the 
United States, we have accepted the decision of integra­
tion that has been promulgated by the Supreme Court 
in the school cases, and without any provocations or dis­
putes of any consequence. There is no reason for this 
Court to change that method of accepting integration, but 
when you are confronted with a question of whether oi 
not that policy can be extended to private property, we 
are reaching into the fundamental principles of the founda­
tion of this country.

The Constitution of the United States has many provi­
sions, and one of its most important provisions is that of 
due process of law. Due process of law applies to the right 
of ownership of property—that you cannot take that prop­
erty, or you cannot do anything to interfere with that 
man’s use of his property, without due process of lav.

Now, clearly, in this case, which is really a simple case; 
it is a simple case of a group of negroes, forty in all, get­
ting together in the City of Washington, and coming into 
Maryland, with the express intent, by the testimony of





74

one of the defense witnesses, that they were going to 
make a private corporation change its policy of segrega­
tion. In other words, they were going to take the law in 
their own hands. Why they didn’t file a civil suit and 
[fol. 133] test out the right of the Glen Echo Park Amuse­
ment Company to follow that policy is very difficult for this 
Court to understand, yet they chose to expose themselves 
to possible harm; to possible riots and to a breach of the 
peace. To be exposed to the possibility of a riot in a place 
of business, merely because these defendants want to im­
press upon that business their right to use it, regardless 
of the policy of the corporation, should not be tolerated 
by the Courts. Unless the law of this State is changed, 
by the Court of Appeals of Maryland, this Court will 
follow the law that has already been adopted by it, that a 
man’s property is his castle, whether it be offered to the 
public generally, or only to those he desires to serve.

There have been times in the past, not too many years 
back, when an incident of this kind would have caused a 
great deal of trouble. It could have caused race riots, 
and could have caused bloodshed, but now the Supreme 
Court, in the school case in 1954, has decided that public 
schools must be integrated, and the people of this County 
have accepted that decision. They have not quibbled about 
it; they have gone along with it without incident. We are 
one of the leading counties in the United States in accept­
ing that decision. If the Court of Appeals of Maryland 
decides that a negro has the same right to use private 
property as was decided in the school cases, as to State 
or Government property, or if the Supreme Court of the 
United States so decides, you will find that the places of 
[fol. 134] business in this County will accept that decision, 
in the same manner, and in the same way that public au­
thorities and the people of the County did in the School 
Board decision, but there is nothing before this Court at 
this time except a simple case of criminal trespass. The 
evidence shows the defendants have trespassed upon this 
Corporation’s property, not by being told not to come on 
it, but after being on the property they were told to get off.

Now it would be a ridiculous thing for this Court to 
say that when an individual comes on private property,





75

and after being on it, either sitting on it or standing on it, 
and the owner comes up and says, “Get off my property”, 
and then the party says “You didn’t tell me to get off the 
property before I came on it, and, therefore, you cannot tell 
me to get off now” he is not guilty of trespass because he 
was not told to stay off of the property. It is a wanton 
trespass when he refuses to get off of the property, after 
being told to get off.

One of the definitions of wanton is “foolhardy” and this 
surely was a foolhardy expedition; there is no question 
about that. When forty people get together and come 
out there, as they did, serious trouble could start. It is 
a simple case of trespass. It is not a breach of the peace, 
[fol. 135] or a case of rioting, but it could very easily have 
been, and we can thank the Lord that nothing did take 
place of such a serious nature.

It is not up to the Court to tell the Glen Echo Amuse­
ment Company what policies they should follow. If they 
violate the law, and are found guilty, this Court will sen­
tence them.

It is most unfortunate that this matter comes before 
the Court in a criminal proceeding. It should have been 
brought in an orderly fashion, like the School Board case 
was brought, to find out whether or not, civilly, the Glen 
Echo Park Amusement Company could follow a policy 
of segregation, and then you will get a decision based on 
the rights of the property .owner, as well as the rights of 
these defendants. So, the Court is very sorry that this 
case has been brought here in our courts.

It is my opinion that the law of trespass has been vio­
lated, and the Court finds all five defendants guilty as 
charged.

[fol. 136] Reporter’s Certificate to foregoing transcript 
(omitted in printing).



'



[fol.137]
In t h e  C ourt of A ppea ls  of M aryland 

No. 248
September Term, 1960

76

W illia m  L. G r if f in , et al. 
v.

S tate of M aryland

Henderson
Hammond
Prescott
Horney
Marbury,

JJ.

Opinion by Horney, J.—Filed June 8, 1961
[fol. 138] This is a consolidated appeal from ten judg­
ments and sentences to pay fines of one hundred dollars 
each, entered by the Circuit Court for Montgomery County 
after separate trials, each involving five defendants, on 
warrants issued for wanton trespass upon private prop­
erty in violation of Code (1957), Art. 27, §577.

The first group of defendants, William L. Griffin, Mar- 
vous Saunders, Michael Proctor, Cecil T. Washington, Jr., 
and Gwendolyn Greene (hereinafter called “the Griffin 
appellants” or “the Griffins”) all of whom are Negroes, 
were arrested and charged with criminal trespass on June 
30, 1960, on property owned by Rekab, Inc., and operated 
by Kebar, Inc., as the Glen Echo Amusement Park (Glen 
Echo or park). The second group of defendants, Cornelia 
A. Greene, Helene D. Wilson, Martin A. Scliain, Ronyl J. 
Stewart and Janet A. Lewis (hereinafter called “the 
Greene appellants” or “the Greenes”), two of whom are 
Caucasians, were arrested on July 2, 1960, also in Glen 
Echo, and were also charged with criminal trespass.





77

The Griffins were a part of a group of thirty-five to forty 
young colored students who gathered at the entrance to 
Glen Echo to protest “the segregation policy that we thought 
might exist out there.” The students were equipped with 
signs indicating their disapproval of the admission policy 
of the park operator, and a picket line was formed to 
[fol. 139] further implement the protest. After about an 
hour of picketing, the five Griffins left the larger group, 
entered the park and crossed over it to the carrousel. 
These appellants had tickets (previously purchased for 
them by a white person) which the park attendant refused 
to honor. At the time of this incident, Rekab and Kebar 
had a “protection” contract with the National Detective 
Agency (agency), one of whose employees, Lt. Francis J. 
Collins (park officer), who is also a special deputy sheriff 
for Montgomery County, told the Griffins that they were 
not welcome in the park and asked them to leave. They 
refused, and after an interval during which the park 
officer conferred with Leonard AYoronoff (park manager), 
the appellants were advised by the park officer that they 
were under arrest. They were taken to an office on the 
park grounds and then to Betliesda, where the trespass 
warrants were sworn out. At the time the arrests were 
made, the park officer had on the uniform of the agency, 
and he testified that he arrested the appellants under the 
established policy of Kebar of not allowing Negroes in 
the park. There was no testimony to indicate that any 
of the Griffins were disorderly in any manner, and it seems 
to be conceded that the park officer gave them ample time 
to heed the warning to leave the park had they wanted 
to do so.

The Greene appellants entered the park three days after 
the first incident and crossed over it and into a restaurant 
[fol. 140] operated by the B & B Industrial Catering Ser­
vice, Inc., under an agreement between Kebar and B & B. 
These appellants asked for service at the counter, wen* 
refused, and were advised by the park officer that they 
were not welcome and were ordered to leave. They refused 
to comply by turning their backs on him and he placed 
them under arrest for trespassing. Abram Baker (presi-





78

dent of both Kekab and Kebar) testified that it was the 
policy of the park owner and operator to exclude Negroes 
and that the park officer had been instructed to ask Negro 
customers to leave, and that if they did not, the officer 
had orders to arrest them. There was no evidence to show 
that the operator of the restaurant had told the Greenes 
they were not welcome or to leave; nor was there any evi­
dence that the park officer was an agent of the restaurant 
operator. And while a prior formal agreement1 covering 
the 1957 and 1958 seasons had provided that the restaurant 
operator was subject to and should comply with the rules 
and regulations concerning the persons to be admitted 
to the park and that Kebar had reserved the right to en­
force them, the letter confirming the agreement for the 
1959 and 1960 seasons fixed the rentals for that period 
[fol. 141] and alluded to other matters, but made no ref­
erence whatsoever, either directly or indirectly, to the 
prior formal agreement—though there was testimony, ad­
mitted over objection, to the effect that the letter was in­
tended as a renewal of the prior lease—and was silent as 
to a reservation by Kebar of the right to police the restau­
rant premises during the 1959 and 1960 seasons.

On this set of facts, both groups of appellants make the 
same contentions on this appeal: (i) that the requirements 
for conviction under Art. 27, §577, were not met; and 
(ii) that the arrest and conviction of the appellants consti­
tuted an exercise of the power of the State of Maryland 
in enforcing a policy of racial segregation in violation of 
the Fourteenth Amendment to the Constitution of the 
United States.

Trespass to private property is not a crime at common 
law unless it is accompanied by, or tends to create, a 
breach of the peace. See Krauss v. State, 216 Md. 369, 
140 A. 2d 653 (1958), and the authorities therein cited. 
And it was not until the enactment of §21A of Art. 27 (as a

1 The document was called an “agreement” ; the operator of the 
restaurant was referred to therein as a “concessionaire” and was 
described in the agreement as a “licensee” and not a “lessee” ; yet 
the agreement called for the payment of rent (payable bi-annu- 
ally) as well as a portion of the gross receipts and a part of the 
county licensing fees and certain other items of expense.





79

part of the Code of 188S) by Chapter (56 of the Acts of 
1900 that a “wilful trespass” (see House Journal for 1900, 
p. 322) upon private property was made a misdemeanor. 
That statute, which has remained unchanged in phraseology 
since it was originally enacted, is now §577 of Art. 27 (in 
the Code of 1957), entitled “wanton trespass upon private 
land,” and reads in pertinent p a rt:

[fol. 142] “Any person * * * who shall enter upon or 
cross over the land, premises or private property of 
any person * * * after having been duly notified by the 
owner or his agent not to do so shall be deemed guilty 
of a misdemeanor * * * ; provided [however] that noth­
ing in this section shall be construed to include * * * the 
entry upon of crossing over any land when such entry 
or crossing is done under a bona tide claim of right or 
ownership * * *, it being the intention of this section 
only to prohibit any wanton trespass upon the private 
land of others.”

The Case Against The Griffin Appellants

(i)
The claim that the requirements for conviction were not 

met is threefold: (a) that due notice not to enter upon or 
cross over the land in question was not given to the appel­
lants by the owner or its agent; (b) that the action of the 
appellants in doing what they did was not wanton within 
the meaning of the statute; and (c‘) that what the appellants 
did was done under a bona fide claim of right.

There was due notice so far as the Griffins were con­
cerned. Since there was evidence that these appellants had 
gathered at the entrance of Glen Echo to protest the segre­
gation policy they thought existed there, it would not be 
unreasonable to infer that they had received actual notice 
not to trespass on the park premises even though it had not 
been given by the operator of the park or its agent. But, 
even if we assume that the Griffins had not previously had 
the notice contemplated by the statute which was required 
to make their entry and crossing unlawful, the record is 
[fol. 143] clear that after they had seated themselves on the





80

carrousel, these appellants were not only told they were un­
welcome, but were then and there clearly notified by the 
agent of the operator of the park to leave and deliberately 
chose to stay. That notice was due  notice to these appellants 
to depart from the park premises forthwith, and their re­
fusal to do so when requested constituted an unlawful tres­
pass under the statute. Having been duly notified to leave, 
these appellants had no right to remain on the premises and 
their refusal to withdraw was a clear violation of the statute 
under the circumstances even though the original entry and 
crossing over the premises had not been unlawful. S ta te  v. 
Fox, 118 S. E. 2d 5S (N. C. 1961). Cf. C o m m o n w ea lth  v. 
Richardson, 48 N. E. 2d 678 (Mass. 1943). Words such as 
“enter upon” or “cross over” as used in $577, su p ra ,  have 
been held to be synonymous with the word “trespass.” See 
State  v. A v e n t ,  li8  S. E. 2d 47 (N. C. 1961).

The trespass was wanton within the meaning of the 
statute. Since the evidence supports a reasonable inference 
that the Griffins entered the park premises and crossed over 
it well knowing that they were violating the property rights 
of another, their conduct in so doing was clearly wanton. 
Although there are almost as many legal definitions of the 
word “wanton” as there are appellate courts, we think the 
Maryland definition, which is in line with the general defini­
tion of the word in other jurisdictions, is as good as any. 
[fol. 144] In D en n is  v. B a l t im o re  T ra n s i t  Co., 189 Md. 610, 
56 A.2d 813 (1948), as well as in B a lt im o re  T r a n s i t  Co. v. 
Faulkner, 179 Md. 598, 20 A.2d 485 (1941), it was said that 
the word “wanton” means “characterized by extreme reck­
lessness and utter disregard for the rights of others.” We 
see no reason why the refusal of these appellants to leave 
the premises after having been requested to do so was not 
wanton in that their conduct was in “utter disregard of the 
rights of others.” Even though their remaining may have 
been no more than an aggravating incident, it was never­
theless wanton within the meaning of this criminal trespass 
statute. See E x  P a r t e  B irm in g h a m  R e a l ty  Co., 63 So. 67 
(Ala. 1913).

Since it was admitted that the carrousel tickets were ob­
tained surreptitiously in an attempt to “integrate” the





81

amusement part, we think the claim that these appellants 
had taken seats on the carrousel under a bona fide claim of 
right is without merit. While the statute specifically ex­
cludes the “entry upon or crossing over” privately owned 
property by a person having a license or permission to do 
so, these appellants do not come within the statutory excep­
tion. In a case such as this where the operator of the amuse­
ment park—who had a right to contract only with those 
persons it choose to deal with—had not knowingly sold car­
rousel tickets to these appellants, it is apparent that they 
had no bona fide claim of right to a ride thereon, and, absent 
a valid right, the refusal to accept the tickets was not a 
[fol. 145] violation of any legal right of these appellants.

( i i )

We come now to the consideration of the second conten­
tion of the Griffin appellants that their arrest and convic­
tion constituted an unconstitutional exercise of state power 
to enforce racial segregation. We do not agree. It is true, 
of course, that the park officer—in addition to being an 
employee of the detective agency then under contract to 
protect and enforce, among other things, the lawful racial 
segregation policy of the operator of the amusement park 
—was also a special deputy sheriff, but that dual capacity 
did not alter his status as an agent or employee of the 
operator of the park. As a special deputy sheriff, though 
he was appointed by the county sheriff on the application 
of the operator of the park “for duty in connection with 
the property” of such operator, he was paid wholly by the 
person on whose account the appointment was made and 
his power and authority as a special deputy was limited to 
the area of the amusement park. See Montgomery County 
Code (1955), §2-91. As we see it, our decision in Drews v. 
State, 224 Md. 186, 1G7 A. 2d 341 (1961), is controlling here. 
The appellants in that case—in the course of participating 
in a protest against the racial segregation policy of the 
owner of an amusement park—were arrested for disorderly 
conduct committed in the presence of regular Baltimore 
County police who had been called to eject them from the 
[fol. 146] park. Under similar circumstances, the appellants





82

in this case—in the progress of an invasion of another 
amusement park as a protest against the lawful segregation 
policy of the operator of the park—were arrested for crim­
inal trespass committed in the presence of a special deputy 
sheriff of Montgomery County (who was also the agent of 
the park operator) after they had been duly notified to 
leave but refused to do so. It follows—since the offense for 
which these appellants Avere arrested was a misdemeanor 
committed in the presence of the park officer who had a right 
to arrest them, either in his private capacity as an agent or 
employee of the operator of the park or in his limited capac­
ity as a special deputy sheriff in the amusement park (see 
Kauffman, T h e  L a iv  o f  A r r e s t  in M a ry la n d ,  5 Md. L. Rev. 
125, 149)—the arrest of these appellants for a criminal 
trespass in this manner was no more than if a regular police 
officer had been called upon to make the arrest for a crime 
committed in his presence, as was done in the D r e w s  case. 
As we see it, the arrest and conviction of these appellants 
for a criminal trespass as a result of the enforcement by 
the operator of the park of its lawful policy of segregation, 
did not constitute such action as may fairly be said to be 
that of the State. The action in this case, as in D r e w s ,  was 
also “one step removed from State enforcement of a policy 
of segregation and violated no constitutional right of ap­
pellants.”

The judgments as to the Griffin appellants will be 
affirmed.
[fol. 147]

T he C ase  A g a in s t  the G reene  A p p e l la n ts

There is not enough in the record to show that the 
Greenes were duly notified to leave the restaurant by the 
only persons who were authorized by the statute to give 
notice. The record discloses that these appellants entered 
the park and crossed over it into the restaurant on the 
premises, but there was no evidence that the operator or 
lessee of the restaurant or an agent of his either advised 
these appellants that they were unwelcome or warned them 
to leave. There was evidence that the park officer had 
ordered these appellants to leave, but it is not shown that





83

he was authorized to do so by the lessee, and a new written 
agreement for the 1959 and 19G0 seasons having been sub­
stituted for the former agreement covering the 1957 and 
1958 seasons, the state of the record is such that it is not 
clear that the lessor had reserved the right to continue 
policing the leased premises as had been the case during 
the 1957-1958 period. Under these circumstances, it appears 
that the notice given by the park officer was ineffective. 
There is little doubt that these appellants must have known 
of the racial segregation policy of the operator of the park 
and that they were not welcome anywhere therein, but 
where notice for a definite purpose is required, as was the 
case here, knowledge is not an acceptable notice where the 
required notification is incident to the infliction of a crim­
inal penalty. 1 Merrill, N o tice ,  §509. See also W o o d ru ff  v. 
State, 54 So. 240 (Ala. 1911), where it was held (at p. 240) 
[fol. 148] that “ [i]n order to constitute the offense of tres­
pass after warning, it is necessary to show that the warning 
was given by the person in possession or his duly author­
ized agent.” And see P a y n e  v. S ta te ,  12 S. TV. 2d 528 (Tenn. 
1928), [a court cannot convict a person of a crime upon 
notice different from that expressly provided in the stat­
ute]. Since the notice to the Greene appellants was in­
adequate the* should not have been convicted of trespassing 
on private property, and the judgments as to them must be 
reversed.

The ju d g m en ts  a g a in s t  the Griffin a p p e l la n ts  are  affirmed;  
the ju d g m en ts  a g a in s t  the G reene a p p e l la n ts  are  r e v e r s e d ;  
the Griffin a p p e lla n ts  shall  p a y  one-half  o f  the c o s ts ;  and  
M ontgom ery C o u n ty  sha ll  p a y  the o th e r  one-half.





[fol. 149]
S u pr e m e  Court of t h e  U n it e d  S tates 

No. 287, October Term, 1961

84

W illia m  L. G r if f in , et al., Petitioners, 
vs.

M aryland

Order A llowing Certiorari—June 25,1962
The petition herein for a writ of certiorari to the Court 

of Appeals of the State of Maryland is granted, and the 
case is transferred to the summary calendar. The case 
is set for argument to follow No. 85.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in 
response to such writ.

Mr. Justice Frankfurter took no part in the considera­
tion or decision of this petition.

1





\
No. 26

| n  to  $fojrrme flfaurt af the Wimted States
Octobek Teem , 1962

W illiam L. Griffin , et al., petitioners

v.
S tate of Maryland

ON W R I T  O F  C E R T I O R A R I  T O  T H E  C O U R T  O F  A P P E A L S  O F  T H E  
S T A T E  O F  M A R Y L A N D

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

A R C H IB A LD  COX,
S o l ic i to r  G e n e ra l,

B U R K E  M A RSH ALL,
A s s i s ta n t  A t to r n e y  G e n e ra l,

LOUIS F . CLAIBORNE,
A s s i s ta n t  to  th e  S o l ic i to r  G e n e ra l, 

HAROLD H . G R EEN E,
A t to r n e y ,

D e p a r tm e n t  o f  J u s tic e ,
W a s h in g to n  25, D .C .





I N D E X

Page

Opinions below______________________ ________ 1
Jurisdiction---------------------------------------------------  1
Question presented___________________________  2
Interest of the United States----------------------------  2
Statement___________________________________  3

A. Statute involved______________________  3
B. The facts_____________________________ 3, 4

Argument------------------------------------------------------  8

CITATIONS
Cases:

N ation a l Labor R elations B oard  v. Jones &
Laughlin  Steel C orp., 331 U.S. 416_________ 9

W illiam s  v. U nited  States, 341 U.S. 97_______  9
Statute:

Maryland Code (1957), Article 27, Section 577_ 3,4
Miscellaneous:

Frankfurter and Greene, The Labor In ju n c­
tio n ___________________________________  11

in

661808— 62





J t t  tilt Supreme C^urt of the United plates
October Term , 1962

No. 26

W illiam  L. Griffin , et al., petitioners

v.
S tate of Maryland

O N  W R I T  O F  C E R T I O R A R I  T O  T E E  C O U R T  O F  A P P E A L S  O F  T E E  
S T A T E  O F  M A R Y L A N D

R-RTF.F f o r  t h e  u n i t e d  s t a t e s  a s  a m ic u s  c u r i a e

O PIN IO NS BELOW

The opinion of the Court of Appeals of M aryland 
(R. 76-83) is reported a t 225 Md. 422, 171 A. 2d 717. 
The opinion of the C ircuit Court fo r Montgomery 
County (R. 72-75) is not reported.

JU R ISD IC TIO N

The judgm ent of the Court of Appeals of M aryland 
was entered on Ju n e  8,1961 (R. 76). The petition for 
a writ of certiorari was granted on June  25,1962 (370 
U.S. 935; R. 84). The jurisdiction of th is Court rests 
upon 28 U.S.C. 1257(3).

(i)



2

QUESTION PR E SE N T E D

Petitioners were arrested and convicted for trespass 
because of a refusal to leave a private amusement park 
which pursued a policy of racial discrimination. The 
direction to leave the premises was issued, and the 
a rrest was made, by an officer in the employ of the 
proprieto r and clothed with the authority  of the State 
as a Special Deputy Sheriff.

The question presented is whether, in the circum­
stances, the State was so closely identified w ith the act 
of discrim ination tha t the conviction should be set 
aside as involving a denial of equal protection of the 
law in  violation of the Fourteenth  Amendment.

IN T E R E ST  OP T H E  U N IT E D  STATES

This case has been set down fo r argum ent with a 
num ber of other cases involving so-called “sit-in” 
demonstrations. Like the other cases, it  involves the 
rights of Negroes subjected to racial discrimination 
by private businesses open to the public—a m atter of 
grave concern to the polity of the Nation. See the 
brief of the U nited States in  Nos. 11, 58, 66, 67, and 
71. Because the circumstances differ, however, we are 
filing a separate brief a m ic u s  c u r ia e  in  this case. In 
obedience to the precept th a t the Court ought not 
reach broad constitutional questions if  there is a nar­
rower ground of decision, our argum ent herein is con­
fined to the question set fo rth  immediately above.

m



3

STATEMENT

A. STATUTE DEVOLVED

Petitioners were convicted of violating Article 27, 
Section 577, of the M aryland Code (1957) which pro­
vides:

Any person * * * who shall enter upon or 
cross over the land, premises or private prop­
erty  of any person * * * a fte r having been 
duly notified by the owner or his agent not to 
do so shall be deemed guilty of a misdemeanor 
* * * provided [however] that nothing in  this 
section shall be construed to include w ithin its 
provisions the entry  upon or crossing over any 
land when such entry or crossing is done under 
a bona fide claim of righ t or ownership of said 
land, it being the intention of this section only 
to prohibit any wanton trespass upon the p r i­
vate land of others.

B. THE PACTS

This case involves a “sit-in” demonstration a t Glen 
Echo Amusement P a rk  in Montgomery County, M ary­
land. On June 30, 1960, petitioners, young Negro 
students, entered the P a rk  through the m ain gates (R. 
6-7; 59). No tickets of admission were required fo r 
entry (R. 1 7 1). Petitioners, w ith valid tickets th a t 
had been purchased fo r them by white supporters, 
took seats on the carousel (R . 7-8; 17; 59-60). The 
carousel was not pu t in  operation and petitioners were 
approached by one F rancis J . Collins (R. 8-9; 61).

tickets are purchased at individual concessions within the 
Park (E. 17).



4

Collins was employed by the Glen Echo management 
as a “special policeman” under arrangem ents with the 
National Detective Agency. A t the request of the 
P a rk  management, Collins had been deputized as a 
Special Deputy Sheriff of Montgomery County (R. 
14-15). H e was dressed in  the uniform  of the Na­
tional Detective Agency and was wearing his Mont­
gomery County Special Deputy Sheriff’s badge (R. 
14). Collins directed petitioners to leave the Park 
w ithin five minutes, explaining th a t it was “the policy 
of the park  not to have colored people on the rides or 
in  the p a rk ” (R. 7-8). Petitioners declined to obey 
Collins’ direction and remained on the carousel for 
which they tendered tickets of admission (R. 8, 17). 
Collins then arrested petitioners for trespass in  viola­
tion of Article 27, Section 577, of the M aryland Code 
(R. 12).

Collins took th is action under the instructions of his 
employer. H e testified that, a fte r seeing the students 
on the rides, he “ went up to Mr. W oronoff [the Park 
m anager] and asked him what he wanted me to do. 
H e said they were trespassing and he wanted them 
arrested fo r trespassing, if  they d idn’t  get off the 
property” (R. 7). Mr. W oronoff testified th a t he “in­
structed L ieutenant Collins to notify them  tha t they 
were not welcome in the park, and we d idn’t  want 
them there, and to ask them to leave, and if  they 
refused to leave, w ithin a reasonable length of time, 
then they were to be arrested fo r trespass” (R. 54).

A t the Montgomery County Police precinct house, 
where petitioners were taken a fte r their arrest, Collins 
p referred  sworn charges fo r trespass against petition-



5

ers by executing an “ Application fo r W arran t by 
Police Officer”  (R.A., 12). U pon Collins’ charge, a 
“ State W a rra n t” was issued by the Justice of the Peace 
(R. 13) .2 Petitioners were tried  in the Circuit Court of 
Mongomery County on September 12, 1960.

At petitioners’ tria l, Glen Echo co-owner Abram 
Baker described his directions to Collins in these 
words (R. 36):

Q. And what specific instructions did you 
give him with respect to authority  to order 
people off the park  premises?

A. Well, he was supposed to stop them a t the 
gate and tell them th a t they are not allowed; 
and if  they came in, w ithin a certain time, five 
or ten minutes—whatever he thinks, why he 
would escort them out.

Q. In  the event they d idn’t  see fit to leave 
a t his warning, did you authorize L ieutenant 
Collins to have these people arrested?

A. Yes.
Q. On a charge of trespass?
A. On a charge of trespass.

Baker also testified (R. 39-40) :
Q. W ould you tell the Court what you told 

L ieutenant Collins relating to the racial policies 
of the Glen Echo P a rk ?

A. W e d idn’t  allow negroes and in his dis­
cretion, if  anything happened, in  any way, he

2 The original State Warrant, filed on August 4, 1960 (R.B.), 
alleged that petitioners had refused to leave the Park “after 
having been told by the Deputy Sheriff for Glen Echo Park” 
to leave the property. This was replaced by an amended State 
Warrant of September 12, 1960 (R.C.) which alleged that peti­
tioners had refused to leave “after having been duly notified 
by an agent of Kebar, Inc.” not to remain on the property.



6

was supposed to arrest them if they went on our 
property.

Q. Did you specify to him what he was sup­
posed to a rrest them fo r ?

A. F o r trespassing.
Q. You used th a t word to him?
A. Y es; tha t is right.
Q. And you used the word ‘* discretion’ ’—what 

did you mean by tha t ?
A. To give them a chance to walk off; if they 

wanted to.
Q. Did you instruct L ieutenant Collins to 

a rrest all negroes who came on the property, 
if  they did not leave ?

A. Yes.
Q. T hat was your instructions?
A. Yes.
Q. And did you instruct him to arrest them 

because they were negroes'?
A. Yes.
Q. D id you instruct him to arrest white per­

sons who came on the park  property  with 
colored persons?

A. I f  they were doing something wrong, they 
are supposed to be arrested.

Q. I n  other words, your instructions as to 
negroes was to arrest them  if  they came into 
the park, and refused to leave, because they 
were negroes; and your instruction was to 
a rrest white persons if  they were doing some­
thing wrong ?

A. T hat is right.



7

P ark  Manager Woronoff testified tha t he was re­
sponsible fo r the conduct of Glen Echo’s special police 
force (R. 54). H e stated (R. 55) :

Q. Mr. Woronoff, you said, as General Man­
ager of the P a rk , you were responsible for the 
conduct of the National Detective Agency of­
ficers; is tha t right?

A. Yes; while they are in our employ a t the 
park.

Q. Does the National Detective Agency make 
their employees available to you, and you direct 
them as you see fit?

A. T hat is correct.
Petitioners were convicted of wanton trespass and 

ordered to pay a fine (R .F., 72-75). The convictions 
were affirmed by the M aryland Court of Appeals 
which rejected petitioners’ argum ents regarding the 
applicability of the M aryland statute and found tha t 
petitioners’ a rrest by officer Collins in  his dual ca­
pacity as agent of Glen Echo and Deputy Sheriff of 
Montgomery County did not violate the Fourteenth  
Amendment. On the la tte r issue, the court said (R. 
81-82):

I t  is true, of course, tha t the park  officer—in 
addition to being an employee of the detective 
agency then under contract to protect and en­
force among other things, the lawful racial 
segregation policy of the operator of the 
amusement park—was also a special deputy 
sheriff, but tha t dual capacity did not a lter his 
status as an agent or employee of the operator



8

of the park. As a special deputy sheriff, 
though he was appointed by the county sheriff 
on the application of the operator of the park 
“ for duty in  connection w ith the p roperty” of 
such operator, he was paid  wholly by the person 
on whose account the appointm ent was made 
and his power and authority  as a special deputy 
was limited to the area of the amusement park. 

* * * * *
I t  follows—since the offense fo r which these 
appellants were arrested was a misdemeanor 
committed in  the presence of the park  officer 
who had a righ t to a rrest them, either in  his 
private capacity as an agent or employee of the 
operator of the park  or in  his lim ited capacity 
as a special deputy sheriff in the amusement 
park  (see Kauffman, T h e  L a w  o f  A r r e s t  in 
M a r y la n d , 5 Md. L. Rev. 125, 149)—the arrest 
of these appellants fo r a crim inal trespass in 
this m anner was no more than  if  a regular po­
lice officer had been called upon to make the 
a rrest fo r a crime committed in  his pres­
ence * * *.

ARGUMENT

W e submit th a t the convictions should be reversed.
W e base this conclusion squarely upon the proposi­

tion th a t when a State delegates its police power to a 
private business firm the S tate  is responsible under 
the Fourteenth  Amendment fo r the way in  which 
the private firm exercises the delegated power. Here 
the police power of M aryland was delegated to Col­
lins, an employee of the Glen Echo Amusement Park, 
who was paid  by the P a rk , acted fo r its benefit and 
was subject to its direction. Clothed w ith the State’s



9

police power, the proprietors of Glen Echo, acting 
through Collins, used the police power to enforce a 
policy of racial segregation. H ad  the State confined its 
police authority to law officers acting independently as 
public officials, the arrests might or might not have been 
made; but, in  either event, the State would be in ter­
vening fo r the first time a fte r the decision to trea t 
petitioners as trespassers had been made and its 
action, whatever the ultim ate effect, m ight then have 
been viewed as color-blind. W e pass the question 
whether arrest and prosecution, under such circum­
stances, would violate the Fourteenth  Amendment 
because, here, the State surrendered its independence 
of judgment to a private firm and pu t it  into that 
firm’s power to use the S ta te ’s authority  much as it 
pleased in support of the firm ’s policies of racial dis­
crimination. O ur position is simply th a t when the 
decision to segregate and the decision to exercise the 
delegated police power are joined in the same private 
hands, the S tate cannot deny responsibility fo r either.

1. The attem pted eviction of petitioners, their 
arrests, and the institu tion of the prosecution were 
acts of the S tate  of M aryland because Collins, the 
Park policeman who took these steps, was acting as a 
public officer of the S tate of M aryland. See W il l ia m s  
v. U n ite d  S ta te s ,  341 U.S. 97; N a tio n a l  L a b o r  R e la ­
tions B o a r d  v. J o n e s  &  L a u g h lin  S te e l  C o rp ., 331 U .S. 
416, 429. Collins was in  uniform  and wearing an 
official badge when he directed petitioners to leave 
the amusement park . Collins made the arrests as an 
officer exercising S tate  police power. W hether a 
private citizen could have requested petitioners to



10

leave and made the arrests is irrelevant. I t  was Col­
lins who took the action, and he was acting within the 
scope of his official duties.

2. Simultaneously Collins was acting as an  employee 
and under the direction of the P ark . I t  was Woron- 
off, the P a rk ’s manager, to Whom Collins turned for 
guidance when petitioners were seen on the carousel. 
I t  was on W oronoff’s orders th a t petitioners were ar­
rested. Collins was paid by the P ark . I t  was to the 
P a rk , therefore, th a t he owed his p rim ary  loyalty and 
the P a rk ’s interests and wishes would naturally  guide 
him in situations where public officers m ight exercise 
discretion.

I t  is no answer to say that since the P a rk  might 
have requested petitioners to leave and then sum­
moned police officers from  a neighboring police sta­
tion, Collins’ action was no different than  any police 
officer m ight have taken. There are worlds of differ­
ence, in  both principle and practice, between State 
officers who are im partial public servants, obedient 
only to the law and safeguarding only the public in­
terest, and private policemen paid  to do the bidding 
of private m asters in  pursu it of the ir private interests. 
The essential difference in  loyalties and points of view 
has m any practical consequences but there is no better 
example than the history of industrial relations. For 
several decades large employers subsidized private de­
tectives and other deputies armed w ith the authority 
of the State to execute the employers’ wishes during 
campaigns fo r union organization, strikes and labor 
disputes. The conduct of these private policemen is 
notably different from  the conduct of municipal or



11

State police during labor disputes in subsequent 
decades. Of the form er it  was said, “As a class they 
are overzealous, through their desire to prove to the 
detective bureaus th a t they are efficient, and to the 
railway company th a t they are indispensable. ’ ’ F ran k ­
furter and Greene, T h e  L a b o r  I n ju n c t io n , p. 72, quoting 
Judge Amidon in  G r e a t N o r th e r n  B y .  C o. v. B ro sse a u ,  
286 Fed. 414, 416. See also, id ., a t pp. 120-121. In  
recent years State and municipal police forces have 
found very different ways of preserving the peace, 
protecting private property  and enforcing legal obli­
gations.

Quite different ways of dealing with petitioner's’ 
protests against the P a r k ’s discrim inatory practices 
might well have been followed if  the sovereign author­
ity of M aryland and the duty of serving the interests 
of his private employer had not been combined in  the 
person of Special Officer Collins. As a practical m at­
ter, State and m unicipal police authorities have and 
exercise wide discretion in  dealing w ith petty  crim inal 
offenses th a t are essentially private quarrels, especially 
where public intervention is likely to involve the gov­
ernment in controversial questions essentially unre­
lated to the preservation of peace and order. I t  is for 
the public officials to determine when to resort to arrest, 
and when to leave the owner to private remedies. The 
police may file a  crim inal complaint o r they may re­
fuse and insist th a t any complaint be filed by the in­
terested party . Collins, however, did not seek the 
guidance of public officials, and the police authority  
of Maryland was brought to bear without independent 
public judgment. H ad  Collins consulted a S tate or 
municipal official, a different solution to the “ sit-in”



12

problem m ight have followed. Collins m ight have 
been advised to attem pt to conciliate the parties by 
some action short of arrest and criminal prosecution. 
H e m ight have tried  to persuade the petitioners to 
leave the premises of the ir own volition, or to con­
vince the management tha t m aking an  a rrest was in 
neither the public nor its private interest. Public 
officials m ight have sought to reason w ith the Park 
before m aking the police available. I f  the officer’s 
only loyalty had been to the State, he would, at a 
minimum, we assume, have cast upon the proprietors 
the onus of directing petitioners to leave the premises 
instead of identifying the S ta te’s authority  with the 
invidious discrim ination by himself directing Negroes 
to leave an establishment open generally to the public.

3. W hen the sovereign power of a S tate is thus 
combined w ith the landow ner’s norm al righ t to decide 
what licensees m ay enter his premises and the com­
bined authority  is thus exercised to m aintain a policy 
of racial segregation, the S tate cannot disentangle it­
self from  the discrimination. H aving disclaimed the 
opportunity  fo r independent judgment, the State can­
not be heard  to say—indeed, no one can know—what 
the State would have done had it  retained that oppor­
tunity. In  this case, the m otivation fo r the exercise 
of S tate power was m anifestly the P a r k ’s motivation. 
Since the P a rk  was discrim inating on grounds of race, 
S tate power was being used fo r reasons of race, 
directly and immediately, w ithout other intervention. 
The order to leave the P a rk  addressed to petitioners 
by the deputized officer cannot be separated from his 
em ployer’s direction to give the order. The arrest



13

cannot be divorced from  the direction to arrest. The 
racial motive fo r the direction to leave cannot He 
divorced from  the motive fo r the direction to arrest. 
And nothing is clearer than  th a t the exercise of State 
power on grounds of race or color is a denial of the 
equal protection of the laws.

Respectfully submitted.

October 1962.

Archibald Cox,
Solicitor General. 

B urke M arshall, 
Assistant Attorney General. 

Louis F . Claiborne, 
Assistant to the Solicitor General. 

H arold H . Greene,
Attorney.

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In  The

Supreme Court of the United States

October Term , 1962

N o. 26

WILLIAM L. GRIFFIN, et al.,
Petitioners,

v.
STATE OF MARYLAND,

Respondent.

On Writ of Certiorari to the Court of Appeals 
of the State of Maryland

BRIEF OF RESPONDENT

Thomas B. F inan ,
Attorney General,

J oseph S Kaufman ,
Deputy Attorney General,

Robert C. Murphy,
Assistant Attorney General,

10 Light Street,
Baltimore 2, Md.,

Attorneys for State of Maryland.

The Daily Record Co., Baltimore 3, Md.





I N D E X

Table of Contents

page
Opinions B elow ................................................................  1

Jurisdiction .........................   1

Question P r esen ted ............................................................... 2

Statutes Involved ................................................................  2

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

Summary of A rgument ......................................  . 6

Argument :

Conviction of Petitioners under M aryland’s Gen­
eral S tatu te  prohibiting w anton trespass on 
private property  did not contravene the Equal 
Protection Clause of the Fourteen th  Am end­
ment to the Federal Constitution 8

I. A private am usem ent park, though licensed 
by the State, m ay constitutionally refuse 
service to Negroes solely because of their 
race ........................................................................  8

II. The arrest and conviction of Petitioners 
did not, under the particu lar circum stances 
of this case, constitute an unconstitutional 
exertion of state  power to enforce racial 
segregation in the p rivate am usem ent park  10

Conclusion 15

Table of Citations 

Cases

Alpaugh v. W olverton, 36 S.E. 2d 906 (V irginia) 9
B. & O. Railroad Co. v. Cain, 81 Md. 87, 31 A. 801 15



■



11
PAGE

Bernstein v. Real Estate Commission of Md., 221 Md.
221, 156 A. 2d 657 (Appeal dismissed 363 U.S.
419) 7

Boynton v. Virginia, 364 U.S. 454 9
Burton v. W ilmington Parking Authority, 365 U.S.

715 .................................................................................. 9,12
Civil Rights Cases, 109 U.S. 3 6, 10
Coleman v. Middlestaff, 305 P. 2d 1020 (Calif.) 9
De La Ysla v. Publix  Theatres Corp., 26 P. 2d 818

(U tah) ............................   9
Drews v. State, 224 Md. 186, 167 A. 2d 341 9
Fletcher v. Coney Island, 136 N.E. 2d 344 (Ohio) 9
Garfine v. Monmouth P ark  Jockey Club, 148 A. 2d 1

(N .J.) ............................................................................  9
Goff v. Savage, 210 P. 374 (W ash.) 9
Good Citizens Assoc, v. Board, 217 Md. 129, 141 A.

2d 744 ............................................................................ 9
Greenfeld v. M aryland Jockey Club, 190 Md. 96, 57

A. 2d 335 9
Griffin v. Collins, 187 F. Supp. 149 1, 7, 8, 10
Griffin v. State, 225 Md. 422, 171 A. 2d 717 1
Horn v. Illinois Cent. R.R., 64 N.E. 2d 574 (111.) 9
Madden v. Queens County Jockey Club, 72 N.E. 2d

697 (N.Y.) 9,10
M artin v. S tru thers, 319 U.S. 141 7
Shelley v. K raem er, 334 U.S. 1 6, 9
Slack v. A tlantic W hite Tower Systems, Inc., 181 F.

Supp. 124, aff. 284 F. 2d 746 7, 8, 10,13
State v. Clyburn, 101 S.E. 2d 295 (N.C.) 9,10
Terminal Taxicab Co. v. Kutz, 241 U.S. 252 9
Terrell Wells Swim m ing Pool v. Rodriquez, 182 S.W.

2d 824 (T exas) 9
Turner v. Holtzman, 54 Md. 148 3
Williams v. Howard Johnson’s Restaurant, 268 F. 2d

845 ( 4th Cir.) 6 ,8 ,10
Younger v. Judah, 19 S.W. 1109 (M issouri) 9





Ill

Statutes
PAGE

Annotated Code of M aryland (1957 E d .) :
Article 27—

Sec. 577   2
A rticle 5 6 -

Secs. 75-92   15

Laws of M aryland:
1900 — C hapter 66 ...................................................  2
1939 — C hapter 491 3
1961 — C hapter 616 3

Montgomery County Code—
Section 2-91   3

Montgomery County Ordinances—
4-120 ..............................................................................  8

28 U.S.C. 1257(3)................................................................ 1





In T he

Supreme Court of the United States

O ctober T e r m , 1962

No. 26

W ILLIAM L. GRIFFIN, et  a l .,
Petitioners,

v.
STATE OF MARYLAND,

Respondent.

On W r it  o f  C ertiora ri to  t h e  C ou rt  o f  A ppe a l s  
o f  t h e  S ta te  o f  M aryland

BRIEF OF RESPONDENT
i

OPINIONS BELOW
The opinion of the Court of Appeals of M aryland appears 

at R. 76-83 and is reported a t 225 Md. 422, 171 A. 2d 717. 
The opinion of the Circuit Court for M ontgomery County 
appears at R. 72-75, but is otherwise not reported.

A ttention is also invited to Griffin v . C o llins ,  187 F. Supp. 
149, a civil case arising out of substantially the same factual 
situation as is now before this Honorable Court.

JURISDICTION
The judgm ent of the Court of Appeals was entered on 

June 8, 1961. The Petition for W rit of Certiorari was 
granted on June  25, 1962. The jurisdiction of this Court 
rests upon 28 U.S.C. 1257(3).





2

QUESTION PRESENTED
W hether, consistent w ith the Fourteenth Amendment, 

the State of Maryland, under its general statu te  prohibiting 
trespass on private property, and acting on the complaint 
of the owner of a privately-owned and operated amuse­
ment park, may convict persons who enter upon such 
amusement park and who, after demand by the agent of 
the owner of such private facility, refuse to leave such 
amusement park?

STATUTES INVOLVED
The Petitioners were convicted of violating Chapter 66 

of the Laws of M aryland of 1900, codified as Section 577 
of Article 27 of the Annotated Code of M aryland (1957 
Ed.), which provides:

“Any person or persons who shall en ter upon or 
cross over the land, premises or private property of 
any person or persons in this S tate after having been 
duly notified by the owner or his agent not to do so 
shall be deemed guilty of a misdemeanor, and on con­
viction thereof before some justice of the peace in the 
county or city where such trespass may have been 

. com m itted be fined by said justice of the peace not 
less than one, nor more than one hundred dollars, and 
shall stand committed to the jail of county or city 
until such fine and costs are paid; provided, however, 
that the person or persons so convicted shall have the 
right to appeal from the judgm ent of said justice of 
the peace to the circuit court for the county or Crim­
inal Court of Baltimore where such trespass was com­
mitted, at any time w ithin ten days after such judg­
ment was rendered; and, provided, further, that noth­
ing in this section shall be construed to include within 
its provisions the entry  upon or crossing over any 
land when such entry or crossing is done under a bona 
fide claim of right or ownership of said land, it being





3

the intention of this section only to prohibit any 
wanton trespass upon the private land of others.”'

The direction to Petitioners to leave the premises was 
issued on behalf of the owner by one of its agents, a 
uniformed guard in the employ of a private detective 
agency under contract to the private owner. The guard, 
Lieutenant Francis J. Collins, also held an appointm ent as 
a Special Deputy Sheriff under the provisions of Chapter 
491 of the Laws of M aryland of 1939 (a Public Local Law 
relating solely to Montgomery County), codified as Sec­
tion 2-91 of the Montgomery County Code (1955 Ed.), 
which reads as follows:

“The sheriff of the county, on application of any 
corporation or individual, may appoint special deputy 
sheriffs for duty in connection with the property of, 
or under the charge of, such corporation or individual; 
such special deputy sheriffs to be paid wholly by the 
corporation or person on whose account their appoint­
ments are made. Such special deputy sheriffs shall 
hold office a t the pleasure of the sheriff and shall have 
the same power and authority  as deputy sheriffs 
possess w ithin the area to which they are appointed 
and in no other area.”1 2

STATEMENT
The facts of the case were fairly and adequately sum­

marized by the court below, as follows (R. 76-77):
“* * * W illiam L. Griffin, Marvous Saunders, 

Michael Proctor, Cecil T. W ashington, Jr., and Gwen-

1 This statute was amended by Chapter 616 of the Laws of Mary­
land of 1961 (effective June 1,’ 1961). The amendment eliminated 
“or citv” following “county” in two places and eliminated “or Crim­
inal Court of Baltimore" immediately preceding the words "where 
such trespass”.

2 The office of Sheriff in Maryland still carries with it the common 
law powers of a conservator of the peace. Deputy Sheriffs have such 
authority as the Sheriff himself could exercise. Hence, the powers 
of the “Special Deputy Sheriff” under this statute would appear to 
include the power of arrest. See T u r n e r  v .  H o l t z m a n ,  54 Md. 148.





4

dolyn Greene (hereinafter called ‘the Griffin appel­
lants’ or ‘the Griffins’) all of whom are Negroes, w ere 
arrested and charged w ith criminal trespass on Ju n e  
30, 1960, on property owned by Rekab, Inc., and oper­
ated by Kebar, Inc., as the Glen Echo Am usem ent 
Park  (Glen Echo or park).

“The Griffins were a part of a group of thirty-five 
to forty young colored students who gathered a t the 
entrance to Glen Echo to protest ‘the segregation 
policy that we thought m ight exist out there.’ The 
students were equipped with signs indicating their 
disapproval of the admission policy of the park oper­
ator, and a picket line was formed to fu rther imple­
m ent the protest. A fter about an hour of picketing, 
the five Griffins left the larger group, entered the park 
and crossed over it to the carrousel. These appellants 
had tickets (previously purchased for them by a w hite 
person) which the park  attendant refused to honor. 
At the tim e of this incident, Rekab and K ebar had 
a ‘protection’ contract w ith the National Detective 
Agency (agency), one of whose employees, Lt. F ran ­
cis J. Collins (park  officer), who is also a special 
deputy sheriff for Montgomery County, told the 
Griffins tha t they w ere not welcome in the park  and 
asked them  to leave. They refused, and after an 
interval during which the park officer conferred w ith 
Leonard Woronoff (park m anager), the appellants 
were advised by the park  officer that they w ere under 
arrest. They were taken to an office on the park  
grounds and then to Bethesda, where the trespass 
w arrants were sworn out. A t the time the arrests 
were made, the park officer had on the uniform  of the 
agency, and he testified th a t he arrested the appellants 
under the established policy of K ebar of not allowing 
Negroes in the park. There was no testim ony to in­
dicate tha t any of the Griffins were disorderly in any 
manner, and it seems to be conceded tha t the park  
officer gave them  ample time to heed the warning to 
leave the park had they wanted to do so.”





5

Upon these facts, and after ruling that there was sufficient 
proof to establish the statu tory  elem ents of “due notice” 
and “wantonness,” the court considered the rem aining ques­
tion advanced by Petitioners, viz, w hether their a rrest 
and conviction “constituted an unconstitutional exercise 
of state power to enforce racial segregation” (R. 81). In  
concluding tha t there was no such unconstitutional exer­
cise of state power, and in affirming the judgm ents of con­
viction, the court below said (R. 81-82):

“* * * I t  is true, of course, tha t the park officer — in 
addition to being an employee of the detective agency 
then under contract to protect and enforce, among 
other things, the lawful I'acial segregation policy of 
the operator of the am usem ent park — was also a 
special deputy sheriff, but tha t dual capacity did not 
alter his status as an agent or employee of the  operator 
of the park. As a special deputy sheriff, though he was 
appointed by the  county sheriff on the application of 
the operator of the park ‘for duty in connection w ith  
the property’ of such operator, he was paid wholly by 
the person on whose account the appointm ent was 
made and his power and authority  as a special deputy 
was lim ited to the area of the am usem ent park. See 
Montgomery County Code (1955), §2-91. As we see 
it, our decision in D r e w s  v .  S ta te ,  224 Md. 186, 167 A. 
2d 341 (1961), is controlling here. The appellants in 
that case — in the course of participating in a protest 
against the racial segregation policy of the  ow ner of 
an amusement park  — w ere arrested  for disorderly 
conduct committed in the presence of regu lar B alti­
more County police who had been called to eject them  
from the park. Under sim ilar circumstances, the appel­
lants in this case — in the progress of an invasion of 
another am usem ent park as a protest against the law ­
ful segregation policy of the operator of the park  — 
were arrested for criminal trespass com m itted in the 
presence of a special deputy sheriff of M ontgomery 
County (who was also the agent of the park operator)





6

after they had been duly notified to leave bu t refused 
to do so. It follows — since the offense for which these 
appellants w ere arrested  was a m isdem eanor com­
m itted  in the presence of the park  officer who had a 
righ t to arrest them , either in his private capacity as 
an agent or employee of the operator of the park  or in 
his lim ited capacity as a special deputy sheriff in the 
am usem ent park (see Kauffman, The Law oj Arrest in 
Maryland, 5 Md. L. Rev. 125, 149)—the a rrest of these 
appellants for a crim inal trespass in this m anner was 
no more than  if a regular police officer had been called 
upon to m ake the arrest for a crim e com m itted in his 
presence, as was done in the Drews case. As we see it, 
the a rrest and conviction of these appellants for a 
crim inal trespass as a result of the enforcem ent by the  
operator of the park of its lawful policy of segregation, 
did not constitute such action as m ay fairly  be said to 
be th a t of the State. The action in this case, as in 
Drews, was also “one step removed from  S ta te  enforce­
m ent of a policy of segregation and violated no constitu­
tional righ t of appellants.”

SUMMARY OF ARGUMENT
The action inhibited by the Fourteenth  A m endm ent is 

only such action as may fairly be said to be th a t of the 
states. The Am endm ent erects no shield against m erely 
private conduct, however discrim inatory or wrongful. In ­
dividual invasion of individual rights is not the subject 
m atter of the Amendment. Shelley v. Kraemer, 334 U.S. 
1, 13; Civil Rights Cases, 109 U.S. 3, 11.

A private property owner, such as the  operator of a 
private am usem ent park, may, consistent w ith the Four­
teenth Amendment, a rb itrarily  discrim inate as to invitees. 
He has the right, even though he operates his private 
facility under license from the State, to select his clientele 
and to m ake such selection based on color, if he so desires. 
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845





7

(4th C ir.); S la ck  v. A t la n t ic  W h i te  T o w e r  S y s t e m ,  Inc., 181
F. Supp. 124, aff. 284 F. 2d 746.

Individuals have no constitutional righ t to en ter or re­
main upon private property contrary to the  will of the 
owner. The private owner, on the other hand, is entitled 
to equal protection of law in m aintaining his peaceful 
possession. This Court, in M a r t in  v .  S t r u th e r s ,  319 U.S. 
141, 147, referring to state crim inal trespass laws, and 
making specific reference to the M aryland sta tu te  here in­
volved, observed:

“Traditionally the American law punishes persons 
who enter onto the property of another a fter having 
been w arned by the owner to keep off. G eneral tres­
pass after warning statu tes exist in a t least tw enty 
states, w hile sim ilar statu tes of narrow er scope are 
on the books of at least twelve states m ore . .

The S tate’s general laws m ust be applied to all w ith 
equal force, regardless of their race, and violation thereof 
cannot be shielded from state action on account of race. 
Bernstein v . R ea l E s ta te  C o m m iss io n  o f  M a r y la n d ,  221 Md. 
221, app. dismissed 363 U.S. 419. The non-discrim inatory 
application and enforcem ent of M aryland’s crim inal tres­
pass law in the present case cannot be considered a type 
of state action proscribed by the F ourteenth  Amendment, 
even though the private owner’s sole reason for excluding 
negroes from the amusement park m ay have been because 
they were negroes. Griffin v . C o ll in s , 187 F. Supp. 149. The 
Park’s business policy of excluding negroes was neither 
induced, dictated, or required by any S ta te  or local law, 
policy or custom; nor was it in any way knowingly aided 
by any action tha t could fairly be said to be tha t of the 
State. Petitioners’ arrest and conviction for crim inal tres­
pass was not due to or because the S ta te  of M aryland de­
sired or intended to m aintain this facility as a segregated





8

place of amusement. I t was not only the right, but the 
duty of the S tate  of M aryland, upon complaint being made 
to it by the private owner, to act thereon to protect and 
provide against unlaw ful entry. In  so doing the S tate  was 
merely allowing the use of its legal rem edies as a substitu te 
for force in a civilized community; it was not inducing 
others to discriminate, nor substitu ting its judgm ent for the 
judgment of the individual proprietor.3

ARGUMENT
Conviction of Petitioners under M aryland’s General 

Statute Prohibiting W anton Trespass on Private Property  
Did Not Contravene the Equal Protection Clause of the 
Fourteenth Am endm ent to the Federal Constitution.

I .

A P rivate A m u s e m e n t  P a r k , T h o u g h  L ic en sed  by t h e  
S ta te , M ay  C o n st it u t io n a l l y  R e f u s e  S ervice to 

N egroes S olely  B e c a u se  o f  T h e ir  R ace .

At common law, a person engaged in a public calling, 
such as inn-keeper or common carrier, was held to be under 
a duty to the general public and was obliged to serve, 
without discrimination, all who sought service. Equally 
well settled, on the other hand, is the proposition tha t op­
erators of other private enterprises, including places of 
amusement, are under no such common law obligation; and, 
in the absence of a s ta tu te  forbidding discrimination, may 
select their clientele based on color, if they so desire. 
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845 
(4th C ir.); Slack v. Atlantic White Tower System, Inc., 
181 F. Supp. 124, aff. 284 F. 2d 746; Griffin v. Collins, 187

3 The private owner abandoned its policy of not serving Negroes 
shortly after the conclusion of this case in the lower court. It should 
also be noted that subsequently thereto the Montgomery County 
Council enacted an equal accommodations law for Montgomery 
County. Ordinance 4-120, effective January 16, 1962.





9

F. Supp. 149; Madden v. Queens County Jockey Club, 72 
N.E. 2d 697 (New Y ork), cert, denied, 332 U.S. 761; Terrell 
Wells Swimming Pool v. Rodriquez, 182 S.W. 2d 824 
(Texas); Younger v. Judah, 19 S.W. 1109 (M issouri); Goff 
v. Savage, 210 P. 374 (W ashington); De La Ysla v. Publix 
Theatres Corporation, 26 P. 2d 818 (U ta h ); Horn v. Illinois 
Central Railroad, 64 N.E. 2d 574 (Illinois); Coleman v. 
Middlestaff, 305 P. 2d 1020 (C alifo rn ia); Fletcher v. Coney 
Island, 136 N.E. 2d 344 (O hio); Alpaugh v. Wolverton, 36
S.E. 2d 906 (V irginia); Greenfeld v. Maryland Jockey 
Club, 190 Md. 96; Good Citizens Assoc, v. Board, 217 Md. 
129; and Drews v. State, 224 Md. 186; Garffne v. Monmouth 
Park Jockey Club, 148 A. 2d 1 (N .J .) ; and State v. Clybum, 
101 S.E. 2d 295 (N.C.).

This Court, in Boynton v. Virginia, 364 U.S. 454 clearly 
recognized the validity of the foregoing principles when it 
said tha t every tim e a bus stops at a wholly independent 
roadside restaurant, the In tersta te  Commerce Act does not 
require tha t restau ran t service be supplied in harm ony 
with the provisions of th a t Act. In fact, this Court has 
refused to hold th a t w here a privately-owned restauran t 
is involved, in the absence of the general taxpaying public’s 
ownership of the facility, or in tersta te  commerce, th a t it 
will extend federal protection against racial discrim ina­
tion on the basis of the Fourteenth  Amendment. Burton 
v. Wilmington Parking Authority, 365 U.S. 715; Boynton 
v. Virginia, supra. These recent pronouncements indicate 
reaffirmance of the long established law that the owner of 
private property may be arb itra ry  and capricious in his 
choice of invitees, notw ithstanding the Fourteenth Amend­
ment; and tha t tha t Amendm ent “erects no shield against 
merely private conduct, however discrim inatory or wrong­
ful.” Shelley v. Kraemer, stLpra, at page 13. See also 
Terminal Taxicab Co. v. Kutz, 241 U.S. 252.





10

It being established by the  Civil Rights Cases, 109 U.S. 3 
th a t the  Congress is w ithout power to legislate against 
such private discrim ination as was involved in the  present 
case, this Court cannot (w ithout overruling its prior 
precedents) accomplish the same result by now holding 
that the  F ourteenth  Am endm ent created a new lim itation 
on the use of p rivate property  as developed in the common 
law. The fact th a t the private am usem ent park was re­
quired to have a license from  Montgomery County in order 
to operate does not, as contended by Petitioners, prohibit 
discrimination by the p rivate owner in its use and enjoy­
ment of the  licensed facility; nor does the requirem ent of 
such license convert the private facility into a public one. 
Williams v. Howard Johnson's Restaurant, supra; Slack v. 
Atlantic 'White Tower System, Inc., supra; Madden v. 
Queens County Jockey Club, Inc., supra; State v. Clyburn. 
See also Griffin v. Collins. II.

II.
T h e  A rrest  and  C o n v ic t io n  o f  P e t it io n e r s  D id  N o t , 

U nder t h e  P a r tic u la r  C ir c u m s t a n c e s  o f  T h is  C a s e , 
C o n st it u t e  a n  U n c o n s t it u t io n a l  E x e r t io n  o f  S t a te  
P o w er  to  E n fo rc e  R a cia l  S egregation  in  t h e  P rivate  
A m u s e m e n t  P a r k .

Petitioners broadly contend tha t even if the private pro­
prietor had a righ t to exclude them  from the premises 
solely on account of their race, the State of M aryland 
crossed the line of forbidden conduct m arked by the Four­
teenth Am endm ent by arresting, prosecuting and convict­
ing them under the crim inal trespass statute. V irtually 
the same argum ent was advanced and rejected in Griffin 
v. Collins, supra, the court there holding:

“Plaintiffs have cited no authority  holding tha t in the 
ordinary case, w here the proprietor of a store, restau ­
ran t or am usem ent park, himself or through his own





11

employees, notifies the Negro of the policy and orders 
him to leave the premises, the calling in of a peace 
officer to enforce the  proprietor’s adm itted right would 
am ount to deprivation by the state of any rights, 
privileges or im m unities secured to the Negro by the 
Constitution or laws. Granted the right of the proprie­
tor to choose his customers and to eject trespassers, 
it can hardly he the law, as plaintiffs contend, that the 
proprietor may use such force as he and his employees 
possess hut may not call on a peace officer to enforce 
his rights.” ( Em phasis supplied.)

Though readily  conceding tha t State-imposed racial segre­
gation in the field of recreational activity is proscribed by 
the Fourteenth A m endm ent, it is the position of the State 
of M aryland th a t “state  power" is not being coercibly, and 
hence unconstitutionally, applied to enforce and abet racial 
discrimination sim ply by its exercise to arrest, prosecute 
and convict under the circumstances of this case. We sub­
mit, rather, tha t the search for unconstitutional state action 
in this area m ust be made against the following back­
ground, as ably set forth  by the United States in its brief 
amicus curiae in companion cases, nos. 11, 58, 66, 67, and 71 
(this te rm ), a t pages 42 and 45:

“ . . . a S ta te  cannot constitutionally prohibit associa­
tion betw een Negroes and whites, be it in a public 
restauran t or elsewhere. On the other hand, to cite an 
example, if a p rivate landowner should invite all of 
his neighbors to use his swimming pool a t will and 
then request one of the invitees to leave because of his 
race, creed or color, the decision would be private and, 
however unpraisew orthy, not unconstitutional. F u r­
therm ore, we take it tha t there would be no denial of 
equal protection if the State made its police and legal 
remedies available to the owner of the swimming pool 
against any person who came or rem ained upon his 
property over his objection. For, in a civilized com­
munity, where legal remedies have been substituted





12

for jorce, private choice necessarily depends upon the 
support oj sovereign sanctions. In  such a case, the law 
would be color-blind and it could not be fairly  said, we 
think, th a t the S tate  had denied anyone the equal pro­
tections of its laws. (Em phasis supplied.)

* * * * * *

“It is one thing for the S tate  to enforce, through 
the laws of trespass, exclusionary practices which rest 
simply upon individual preference, caprice or p re ju ­
dice. I t is quite another for the State, exercising as 
it does im m easurable influence over individual be­
havior, to induce racial segregation and then proceed 
to im plem ent the acts of exclusion which it has 
brought about. If the State, by its laws, actions, and 
policies, causes individual acts of discrim ination in 
the conduct of a business open to the public a t large, 
the same State, we believe, cannot be heard to say tha t 
it is m erely enforcing, in even-handed fashion, the 
private and unfettered  decisions of the citizen.”

As otherw ise stated  in Burton v. Wilmington Parking 
Authority, 365 U.S. 715, 722, private conduct abridging 
individual rights does no violence to the equal protection 
clause unless “to some significant ex ten t” the S tate  “in any 
of its m anifestations” has become involved in it. This court 
there recognized th a t to fashion and apply a precise form ­
ula for recognition of S tate  responsibility under the equal 
protection clause would be an “impossible task;” and th a t 
only by “sifting facts” and “weighing circum stances” could 
the involvem ent of a S tate  in private discrim inatory con­
duct, if such existed, be a ttribu ted  its true  significance.

It is not seriously contended tha t the discrim inatory 
practices of the am usem ent park  were perform ed in obedi­
ence to any positive provision of state  law, or induced, 
required or dictated by any state  policy or custom. On the 
contrary, all of the evidence in the case indicated th a t the





13

practice of segregation in the Park was solely the result of 
the business choice of the private proprietor, catering to 
the desires and prejudices of his customers. See Slack v. 
Atlantic White Tower System, Inc., supra. We submit, 
therefore, that the only real issue for decision (and so 
recognized by the United States in its brief amicus curiae 
filed in this proceeding) is whether the arrest of the Peti­
tioners by Lieutenant Collins, in response to the request 
of the private amusement park for assistance in enforcing 
its policy of excluding negroes, constituted state action in 
violation of the Fourteenth Amendment.

The court below found as a fact from the evidence that 
Lieutenant Collins was not executing any State authority 
by virtue of his status as a special deputy sheriff, but was 
acting solely as the agent of the private property owner 
in directing petitioners to leave the private amusement 
park premises. It is nevertheless urged upon this Court 
on behalf of Petitioners that Collins necessarily acted in 
his capacity as special deputy sheriff in making the arrests, 
seemingly reasoning that such must have been so because 
(a) he was specially appointed a special deputy sheriff 
upon application of the park management, (b) he was paid 
by the park, (c) he was in uniform and wearing his state 
badge at the time he made the arrests, and (d) the applica­
tion for warrants which he executed after the arrests were 
on a form entitled “Application for Warrant by Police 
Officer.” We submit that these conclusions are both mis­
leading and inaccurate. Collins was an employee of the 
National Detective Agency, a private organization in­
corporated under the laws of the District of Columbia 
and authorized to provide guard service to its clients. He 
had been assigned under the guard contract between his 
employer and the amusement park to be the senior guard





14

with the title of Lieutenant. That Collins deemed his em­
ployer to be the Detective Agency, and not the State of 
Maryland, or the Park, is abundantly plain from a review 
of the record. It is equally plain that there is nothing in 
the evidence to indicate that Collins was engaged at the 
Park for any reason other than to maintain peace or pro­
tect property from damage or theft; and particularly 
there is nothing in the record to support even a weak in­
ference that he was hired by the amusement park for the 
sole purpose of excluding Negroes. The only testimony 
concerning Collins’ status as a Special Deputy Sheriff con­
sists solely in the statement, volunteered by Collins, that 
“I am a Special Deputy Sheriff of Montgomery County, 
State of Maryland” (R. 14). The record does not disclose 
upon whose application Collins was deputized. Consistent 
with the provisions of the statute it could have been at his 
own request, or at the request of his employer, National 
Detective Agency, or at the request of the Park manage­
ment. That Collins was not paid by the Park, but was paid 
solely by his employer, National Detective Agency, is cer­
tain (R. 14). Collins received no pay from the Park 
or from anyone else for being special deputy sheriff (R. 
15). Collins wore the white-coat uniform of the National 
Detective Agency (and not a uniform of the State of Mary­
land), and his only indicia of State authority was that he 
wore, presumably on his uniform, his deputy badge; al­
though there is absolutely nothing in the record to indicate 
that the Petitioners observed the badge, or knew that 
Collins was a special deputy sheriff when he arrested 
them. It is to be noted that Collins, in effecting the arrests, 
pursued the same procedures as any ordinary citizen in 
obtaining an arrest warrant from a magistrate, thus indi­
cating that Collins was not exercising the powers of special





IN THE

Court oi A ppeals oi M aryland
September Term, 1960

No. 248

William L. Griffin, et al., Appellants, 
vs.

State of Maryland, Appellee, 
and

Cornelia Greene, et al., Appellants, 
vs.

State of Maryland, Appellee.

Appeal From the Circuit Court for Montgomery County 
(James H. Pugh, Judge)

BRIEF AND RECORD EXTRACT OF APPELLANTS

Lee M. Hydeman 
Of Counsel

/

Charles T. Duncan 
J oseph H. Sharlitt 
Claude B. Kahn 

8532 Freyman Drive 
Chevy Chase, Maryland 
Attorneys for Appellants

P ress of B yron  S . A d a m s . W a shingto n , D . C.



*



INDEX

TABLE OF CONTENTS
Page

Statement of the Case ................................................. 1
Questions Presented ......................................................  3
Statement of Facts .......................................................  4
Summary of Arguments .............................................. 7
Argument .........................................................................  8

I. The Requirements for Conviction Under Ar­
ticle 27, Section 577, of the Annotated Code 
of Maryland (1957 E dition), Were Not Met 
in That Appellants’ Acts Were Not Wanton, 
Appellants Were Not Given Proper Notice, 
and Appellants Were Acting Under A Bona 
F ide Claim of R ight .........................................  8

II. The Arrests and Convictions of Appellants 
Constitute an Exercise of State P ower To 
Enforce Racial Segregation in Violation of 
Rights P rotected By the F ourteenth Amend­
ment to the United States Constitution and
By 42 U.S.C. §§ 1981 and 1982 ........................  12

Conclusion .......................................................................  19

TABLE OF CITATIONS
Cases :
Baltimore Transit Co. v. Faulkner, 179 Md. 598, 20

A.2d 485 (1941) .....................................................  8
Barrows v. Jackson, 346 U.S. 249 (1953) ............... 15,16
Buchanan v. Warley, 245 U.S. 60, (1917) .................  9
City of Greensboro v. Simkins, 246 F.2d 425 (4th

Cir. 1957) ...............................................................13,14
City of Petersburg v. Alsup, 238 F.2d 830 (5th Cir.

1956), cert, denied 353 U.S. 922 .......................  13
Civil Rights Cases, 109 U.S. 3 (1883) ....................... 13



11 Index Continued

Page
Cooper v. Aaron, 358 U.S. 1 (1958) ............................ 9
Dawson v. Mayor and City Council of Baltimore, 220 

F.2d 386 (4th Cir. 1955), aff’d per curiam 350
U.S. 877 ...................................................................  13

Department of Conservation v. Tate, 231 F.2d 615
(4th Cir. 1956) cert, denied 352 U.S. 838 ........... 13

Dennis v. Baltimore Transit Co., 189 Md. 610, 57
A.2d 813 (1947) ................................................   8

Drews v. Maryland, — Md. —, No. 113, September
Term, 1960 ............................................................ 14,18

Durkee v. Murphy, 181 Md. 259, 29 A.2d 253 (1942) .. 14 
Greenfeld v. Maryland Jockey Club of Baltimore, 190

Md. 96, 57 A.2d 335 (1948) ...................................  17
Holmes v. City of Atlanta, 223 F.2d 93 (5th Cir.

1955), aff’d per curiam 350 U.S. 879 ....................  13
Interstate Amusement Co. v. Martin, 8 Ala. App. 481,

62 So. 404 (1913) ..................................................  12
Jones v. Marva Theatres, Inc., 180 F. Supp. 49 (D.

Md. 1960) .................................................................  13
Kansas City, Mo. v. Williams, 205 F.2d 47 (8th Cir.

1953), cert deni&d 346 U.S. 826 ............................ 13
Marsh v. Alabama, 326 U.S. 501 (1946) .....................  16
Martin v. Struthers, 319 U.S. 141 (1943) .....................  16
McLaurin v. Oklahoma State Regents, 339 U.S. 637

(1950)   14
Muir v. Louisville Park Theatrical Ass’n., 202 F.2d 

275 (6th Cir. 1953), aff’d per curiam 347 U.S.
971 ............................................................................. 13

New Orleans City Park Improvement Ass’n. v. Detiege,
252 F.2d 122 (5th Cir. 1958), aff’d per curiam 358
U.S. 54 .....................................................................  13

Plessy v. Ferguson, 163 U.S. 537 (1896) ..................  14
Rice v. Arnold, 45 So. 2d 195 (Fla. 1950), vacated 340

U.S. 848 ...................................................................  13
Shelley v. Kraemer, 334 U.S. 1 (1948) .......................15,16
Terry v. Adams, 345 U.S. 461 (1953) .......................... 15
Tonkins v. City of Greensboro, 276 F.2d 890 (4th Cir.

1960) .........................................................................  13
Valle v. Stengel, 176 F.2d 697 (3rd Cir. 1960) ............  17



Constitution and Statutes: Page
Constitution of the United States:

Fourteenth Amendment....................................7, 8,13,14,
15,16,18

United States Code:
Title 42, Section 1981 ............................................. 7,11,17
Title 42, Section 1982 ............................................. 7,11,17

Annotated Code of Maryland (1957 edition):
Article 27, Section 576 ................................................. 8
Article 27, Section 577 ....................................... 2, 3, 4, 5, 6 ,

7, 8 , 9,10
Article 27, Section 578 ................................................. 8
Article 27, Section 579 ................................................. 8
Article 27, Section 580 .................................................  8

Index Continued iii

APPENDIX
Page

Docket Entries and Judgment Appealed F ro m ............ E. 1
Warrants of Arrest (Griffin, et al.) .............................. E. 11
Warrants of Arrest (Greene, et al.) ..............................E. 12
Proceedings (Griffin, et a l . ) .............................................E. 13
Testimony at T ria l:

Francis J. Collins
Direct ........................................................................ E. 14
C ross......................................................................... .E. 18

Abram Baker
Direct ........................................................................ E. 22
C ross.......................................................................... E. 24
Re-Redirect ...............................................................E. 26

Kay Freeman
Direct ........................................................................ E. 30
C ross...........................................................................E. 32



IV Index Continued

Opinion of Court (Griffin, et al.) ............................... E. 33

Proceedings (Greene, et al.) .........................................E. 37

Testimony at Trial:
Francis J. Collins

Direct .......................................................................E. 37
C ro ss........................................................................ E. 39

Abram Baker
Direct .......................................................................E. 40
C ro ss........................................................................ E. 41
Redirect ................................................................... E. 44
R ecross.....................................................................E. 46
Re-Redirect ..............................................................E. 46

Lenord Woronoff
Direct ....................................................................... E. 46
C ro ss .........................................................................E. 47

Ronyl J. Stewart
Direct ....................................................................... E. 48

Martin A. Schain
Direct ....................................................................... E. 51
C ro ss .........................................................................E. 51

Abram Baker (Recalled)
Direct ....................................................................... E. 52
C ro ss .........................................................................E. 53

William Brigfield
Direct ....................................................................... E. 59

Opinion of Court (Greene, et al.) ................................E .60
State’s Exhibit No. 8A .................................................. E.66

State’s Exhibit No. 8B .................................................. E.75

Page



IN THE

Court oi A ppeals oi M aryland
September Term, 1960

No. 248

William L. Griffin, et al., Appellants, 
vs.

State of Maryland, Appellee, 
and

Cornelia Greene, et al., Appellants, 
vs.

State of Maryland, Appellee.

Appeal From the Circuit Court for Montgomery County 
(James H. Pugh. Judge)

BRIEF OF APPELLANTS

STATEMENT OF THE CASE

Appellants William L. Griffin, Marvous Saunders, Michael 
Proctor, Cecil T. Washington, Jr., and Gwendolyn Greene 
(hereinafter referred to as Appellants Griffin et al.) were 
arrested on June 30, 1960, and charged in warrants issued 
by a Justice of the Peace of Montgomery County with 
trespassing on June 30, 1960, on the property of Glen 
Echo Amusement Park in violation of Article 27, Section



2

577, of the Annotated Code of Maryland (1957 edition). 
All of the aforementioned Appellants are members of 
the Negro race.

Appellants Cornelia A. Greene, Helene D. Wilson, Mar­
tin A. Schain, Ronyl J. Stewart, and Janet A. Lewis 
(hereinafter referred to as Appellants Greene et al.) were 
arrested on July 2, 1960, and charged in warrants issued 
by a Justice of the Peace of Montgomery County with 
trespassing on July 2, 1960, on the property of Glen Echo 
Amusement Park in violation of the same statute cited 
above. Appellants Greene, Stewart, and Lewis are mem­
bers of the Negro race and Appellants Wilson and Schain 
are members of the Caucasian race.

Article 27, Section 577, of the Annotated Code of Mary­
land (1957 edition), provides as follows:

§ 577. Wanton trespass upon private land.

Any person or persons who shall enter upon or cross 
over the land, premises or private property of any 
person or persons in this State after having been duly 
notified by the owner or his agent not to do so shall 
be deemed guilty of a misdemeanor, and on conviction 
thereof before some justice of the peace in the county 
or city where such trespass may have been committed 
be fined by said justice of the peace not less than one, 
nor more than one hundred dollars, and shall stand 
committed to the jail of county or city until such fine 
and costs are paid; provided, however, that the person 
or persons so convicted shall have the right to appeal 
from the judgment of said justice of the peace to the 
circuit court for the county or Criminal Court of Balti­
more where such trespass was committed, at any time 
within ten days after such judgment was rendered; 
and, provided, further, that nothing in this section 
shall be construed to include within its provisions 
the entry upon or crossing over any land when such 
entry or crossing is done under a bona fide claim of



3

right or ownership of said land, it being the intention 
of this section only to prohibit any wanton trespass 
upon the private land of others.

Appellants were arraigned, pleaded not guilty, and waived 
a jury trial. The cases of Appellants Griffin et al., were 
consolidated for trial, by consent, and tried on September 
11, 1960, in the Circuit Court for Montgomery County, 
Maryland, before Judge James H. Pugh. The cases of 
Appellants Greene et al., similarly were consolidated for 
trial and tried on September 11 , 1960, in the same Court 
and before the same judge.* Each of the Appellants (de­
fendants below) was found guilty as charged and fined.

QUESTIONS PRESENTED

1. Are the following elements of Article 27, Section 5 7 7 , 
of the Annotated Code of Maryland (1957 edition), each of 
which is necessary to support a conviction, established by 
the record:

a. Were the actions of Appellants wanton within 
the meaning of the statute?

h. Was the statutory requirement of due notice by 
the owner or his agent not to enter upon or cross 
over the land in question met?

c. Were Appellants, who were attempting to assert 
constitutional, statutory, or common-law rights, acting 
under a bona fide claim of right within the meaning of 
the statute ?

2. Did the arrest and conviction of Appellants violate 
or interfere with the rights secured to them by the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment to the Constitution of the United States or the 
provisions of 42 U.S.C. §§1981 and 1982?

* The records of the two consolidated cases were consolidated into one 
record on appeal pursuant to a letter, dated November 16, 1960, from the 
Chief Deputy Clerk of the Court o f Appeals of Maryland to counsel for 
the Appellants.



4

STATEMENT OF FACTS

On June 30, 1960, Appellants Griffin et al. entered onto 
the property of Glen Echo Amusement Park (E. 15, 16), 
a park operated by Kebar, Inc., a Maryland corporation, 
under a lease from Rekab, Inc., also a Maryland corpora­
tion and the owner of the property (E. 22, 23). The officers, 
stockholders, and directors of both corporations are the 
same persons (E. 2 2 , 26). The park is located in Mont­
gomery County, Maryland (E. 15). The owners and oper­
ators of the park employ National Detective Agency, a 
District of Columbia corporation, to provide a force of 
guards at the park (E. 18, 24), and on June 30, 1960, 
and at all times pertinent to this action, the aforementioned 
guards were under the charge of Francis J. Collins (here­
inafter referred to as “ Lt. Collins” ), an employee of Na­
tional Detective Agency (E. 14, 18) who also holds a com­
mission from the State of Maryland as a Special Deputy 
Sheriff for Montgomery County, Maryland (E. 18).

When Appellants Griffin et al. entered the park, they 
proceeded to the carrousel which is located within the park 
and took seats thereon (E. 16). When an attendant ap­
peared, Appellants Griffin et al. tendered valid tickets for 
this ride which had been purchased and transferred to 
them by others (E. 20, 31). The attendant refused to 
accept the tickets and also refused to start the carrousel 
(E. 32). After a short time Lt, Collins approached 
Appellants Griffin et al. and advised them that the 
park was segregated and that Negroes were not per­
mitted therein; he further advised that Appellants Griffin 
et al. should leave the park or he would cause their arrest 
(E. 16, 17, 19). Appellants Griffin et al. refused to 
leave, whereupon Lt. Collins arrested them, transported 
them to an office located on the park property, and notified 
the Montgomery County Police, who came and took Appel­
lant to a police station located in Bethesda, Maryland (E. 
17), where they were charged with violations of Article 27,



5

Section 577, of the Maryland Code Annotated (1957 edi­
tion) (E. 11).

At all times pertinent hereto the conduct of Appellants 
Griffin et al. was orderly and peaceable (E. 21, 22, 31); 
the policy of the park was to refuse admission to Negroes 
solely on account of their race (E. 19, 23, 24, 25); and it was 
pursuant to this policy that Appellants Griffin et al. were 
refused service and arrested (E. 19, 24). Admission to the 
park is free and there is free and open access to the park 
through unobstructed entry ways (E. 20); the tickets 
which were in the possession of Appellants Griffin et al. 
were valid, duly purchased, and without limitation on 
transfer (E. 20, 31); said tickets could be purchased 
at a number of booths located within the park (E. 20); and 
no refund or offer to make good the tickets in any way was 
made by the operators of the park to Appellants Griffin 
et al. (E. 20).

Glen Echo Amusement Park advertises through various 
media, such as press, radio, and television, as to the avail­
ability of its facilities to the public and invites the public 
generally, without mention of its policies of racial dis­
crimination, to come to the park and use the facilities 
there provided (E. 25, 31). In addition to the car­
rousel the park offers various other facilities (E. 32).

Appellants Greene et al. were arrested on July 2, 1960, 
within the confines of a restaurant located in Glen Echo 
Amusement Park (E. 38), under circumstances sub­
stantially similar to those surrounding the arrest of Ap­
pellants Griffin et al. This restaurant was operated by 
B & B Catering Co., Inc., under an agreement with Kebar, 
Inc. (E. 40, 41).

In order to establish the relationship between these cor­
porations, two documents were admitted into evidence (E. 
53). The first, dated August 29, 1958, covered the “ 1959 
and 1960 Seasons” (E. 75). The second, undated and 
consisting of six pages, covered the period commencing on



6

or about April 1, 1957, and ending on or about Labor Day, 
September, 1958 (E. 6 6 ). Officers of Kebar, Inc., and 
B & B Catering Co., Inc., testified that the two documents 
constituted the entire agreement between the parties in 
effect on the day Appellants Greene et al. were arrested 
(E. 53, 59). Appellants objected to the introduction of 
the second document (E. 53).

When Appellants Greene et al. entered the restaurant, 
the attendants refused to serve them (E. 49, 51) and 
closed the counter (E. 51, 52). Shortly thereafter, Lt. 
Collins appeared and advised Appellants Greene et al. that 
they were undesirable and that if they did not leave, they 
would be arrested for trespassing (E. 38, 39, 49). 
Appellants Greene et al. refused to leave, whereupon Lt. 
Collins arrested them, transported them to an office located 
on the park property, and notified the Montgomery County 
Police, who took them to a police station located in Bethes- 
da, Maryland (E. 39), where Appellants Greene et al. were 
charged with violations of Article 27, Section 577, of the 
Annotated Code of Maryland (1957 edition) (E. 12). The 
arrests were made to implement the policy of the operators 
of the park to maintain racial segregation (E. 44, 47). 
Appellants’ conduct was peaceful and orderly at all times 
pertinent hereto (E. 39, 50). The facts concerning 
ownership and operation of Glen Echo Amusement Park 
(E. 40) and its policies of racial exclusion (E. 44, 47), 
Francis J. Collins, and the National Detective Agency 
guards (E. 37, 38, 39), set forth above, apply equally to 
Appellants Greene et al. as they do to Appellants Griffin 
e t  al.

At the trials held on September 11 and 12, 1960, re­
spectively, all of the Appellants were found guilty as 
charged and fined (E. 36, 65). I t  is from these convictions 
that this appeal is taken.



7

SUMMARY OF ARGUMENTS

The record does not support the convictions of Appel­
lants because of failure to meet the requirements of Ar­
ticle 27, Section 577, of the Annotated Code of Maryland 
(1957 edition), under which they were convicted. First, 
the acts of Appellants were not wanton but were at all 
times peaceable and orderly and cannot be characterized 
as reckless or malicious. Second, Appellants were not 
given the statutory notice required, since no notice was 
given to them at or prior to the time of entry into the place 
of public accommodation involved. Furthermore, Appel­
lants Greene et al. were given no notice whatever by duly 
authorized agents of the restaurant in which they were 
arrested. Third, Appellants entered and remained on the 
property in question under a bona fide claim of right and 
were acting under that claim when they were arrested.

The arrests and convictions of Appellants constituted 
an unlawful interference with the constitutionally pro­
tected rights of Appellants under the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
to the Constitution of the United States. Appellants are 
protected by the Constitution against the use of state 
authority to enforce the private racially discriminatory 
policies of a person whose property is open to use by the 
public as a place of public service and accommodation. 
Further, appellants are entitled under the Constitution 
and as specified in 42 U.S.C. §§ 1981 and 1982 to be 
free from interference under color of state law with the 
making and enforcing of contracts or the purchasing of 
personal property on account of race or color. Moreover, 
the arrests and convictions of Appellants were not a rea­
sonable exercise of the police power of the state necessary 
to maintain law and order.



8

I

ARGUMENT

The Requirements for Conviction Under Article 27, Section 
577, of the Annotated Code of Maryland (1957 Edition), 
Were Not Met In That Appellants' Acts Were Not Wanton, 
Appellants Were Not Given Proper Notice, and Appellants 
Were Acting Under a Bona Fide Claim of Right.

A prerequisite to violation of Article 27, Section 577, of 
the Annotated Code of Maryland (1957 edition), is wanton­
ness. The statute is clear on its face in this regard, since 
it is entitled “Wanton trespass upon private land.” In 
addition, the statute concludes with the statement that it is 
“ the intention of this section only to prohibit any wanton 
trespass upon the private land of others” (emphasis sup­
plied). Moreover, the use of “wanton” in this section is 
in contradistinction to other criminal provisions of the 
Annotated Code of Maryland relating to criminal trespass 
which do not contain this requirement. Article 27, Sections 
576, 578, 579, and 580, Annotated Code of Maryland (1957 
edition).

“ Wanton” normally means a malicious or destructive 
act. ’While this Court has not construed “ wanton” as used 
in Article 27, Section 577, it has construed “wanton” in 
other contexts. In Dennis v. Baltimore Transit Co., 189 
Md. 610, 617, 56 A.2d 813 (1947), this Court stated. “ [t]he 
word wanton means characterized by extreme recklessness 
and utter disregard for the rights of others” , citing Balti­
more Transit Co. v. Faulkner, 179 Md. 598, 602, 20 A.2d 485 
(1941). In recognizing the need for a finding that Appel­
lants’ conduct was wanton, the Trial Judge, in his opinion 
in one of these cases in the lower court stated that 
“ wanton” means “ . . . reckless, heedless, malicious, 
characterized by extreme recklessness, foolhardiness and 
reckless disregard for the rights or safety of others, or 
of other consequences” (E. 33).



9

It is difficult to comprehend the manner in which Appel­
lants’ conduct could be deemed wanton for purposes of 
conviction under the criminal statute here involved. The 
record is clear that the Appellants at all times conducted 
themselves in a peaceable and orderly manner. They en­
tered a place of public accommodation to which they, as 
members of the general public, had been invited through 
advertisement; they entered the usual and unobstructed 
route of ingress and egress; and they were attempting to 
do no more than make use of the services offered at the 
time of their arrest. The act for which they were arrested 
was their refusal to leave under the belief that they were 
entitled to enjoy these servics free from interference by 
the state on account of race or color.

Moreover, they peacefully submitted to arrest. The 
Trial Judge, in part, seemed to base the finding of wanton­
ness on the possibility that the presence of a Negro in a 
place of public accommodation, the proprietors of which 
maintain a policy of racial discrimination, might produce 
a riot. Not only is this the result of archaic thinking; it 
also is contrary to the proposition frequently enunciated by 
the Supreme Court of the United States that the rights of 
private individuals are not to be sacrificed or yielded to 
potential violence and disorder brought about by others. 
See Cooper v. Aaron, 358 U.S. 1, 16 (1958); Buchanan v. 
Warley, 245 U.S. 60, 81 (1917).

The other basis for this finding of wantonness is the 
refusal of Appellants, because of their belief in their right 
to enjoy the services offered, to leave the premises upon 
being requested to do so. This, in and of itslf, is not a 
proper basis for a finding of wantonness, since the activity 
of Appellants was not characterized by that extreme reck­
lessness or foolhardiness which is required in order to 
arrive at a determination of the type of conduct punishable 
under the statute.

A second prerequisite to a valid conviction under Article 
27, Section 577, of the Annotated Code of Maryland, is due



10

notice by the owner or his agent not to enter upon or cross 
over his land, premises, or property. The language of the 
statute requires prior notice as a condition of conviction. 
It only applies to an entry or crossing “ after having been 
duly notified by the owner or his agent not to do so. ’ ’ In the 
instant cases, no notice was posted nor was any notice 
orally communicated to Appellants prior to their entry 
onto the land. Appellants had entered through an unre­
stricted means of ingress, open to the public, who were 
permitted and, in fact, invited to enter and use the facili­
ties of the park. Appellants Griffin et al. received no 
communication from anyone connected with the park until 
they were on the carrousel, and Appellants Greene et al. 
received no communication whatever until they were inside 
the restaurant, both of which were well within the bound­
aries of the property on which they allegedly trespassed. 
This Court is under the normal constraint to construe the 
statute narrowly, particularly since it is in derogation of 
the common law.

Even if the Court were to construe the statute broadly in 
the sense of meaning notice subsequent to entry, as to 
Appellants Greene et al., the record does not show that Lt. 
Collins was within the category of persons who are author­
ized to give notice under the statute, and therefore the pur­
ported notice was invalid. These Appellants were in a 
restaurant which was leased by Glen Echo Amusement 
Park (Kebar, Inc.) to B & B Catering Co., Inc. Appellants 
contend that, as a matter of law, the agreement between 
Kebar and B & B was contined in its entirety in the docu­
ment dated August 29, 1958 (E. 75). I t did not purport to 
incorporate by reference or otherwise refer to any prior 
agreement. I t was complete on its face and set forth the 
fact that it was “ the agreement” between the parties con­
taining the “ terms” thereof. The prior lease (E. 66), by 
its terms, expired in September, 1958, and, as a matter of 
law, was not and could not have been extended by the agree­
ment dated August 29, 1958. The testimony of the corpo­



11

rate officers to the contrary (E. 55, 56, 57, 59) is insufficient, 
appellants contend, to alter this conclusion. Further, the 
fact that the two agreements have overlapping and in some 
cases contradictory provisions demonstrates that the agree­
ment of August 29, 1958, was not intended as an extension 
of or supplement to the prior agreement. Unlike the prior 
agreement, the agreement of August 29, 1958, created a 
lease rather than a license, and contained no reservation 
of control over the operation and conduct of the lessee’s 
business beyond a restriction on employment of persons 
under eighteen years of age. It follows, if B & B was a 
lessee of the restaurant in which the arrests occurred, as 
distinguished from a licensee, that the evidence is wholly 
insufficient to support the contention that Lt. Collins was 
acting as the agent of the lessee when Appellants Greene 
et al. were “ notified” and subsequently arrested.

The third basis for setting aside Appellants conviction is 
the proviso that the statute does not apply to persons who 
are acting under a bona fide claim of right to be upon the 
property of another.

All of Appellants were members of the general public, 
invited to the park by the operators thereof. This invita­
tion was extended to the public, without qualification as 
to race or color, particularly to persons residing in the 
Washington metropolitan area, by way of advertisements 
in newspapers, signs on buses, and by radio and television. 
Entry to the park \Vas free and unobstructed and open to 
all responding to such invitations. In view of these facts, 
Appellants’ bona fide claim of right to enter and cross 
over the property seems incontrovertible.

This claim of right is reinforced by the fact that all of 
the Appellants were trying to make or to enforce con­
tracts, or to purchase personal property, and thus their 
activity is given the express sanction of law, 42 U.S.C.A. 
§§ 1981, 1982, which give all persons, including Negroes,



12

the same right “ in every State and Territory to make and 
enforce contracts . . .  as is enjoyed by white citizens, . . . ’’ 
and an equivalent right to purchase personal property. A 
peaceable entry into a place of public business in order to 
purchase food, tickets, or other items on sale, or to make use 
of tickets duly purchased from the proprietor is certainly 
a proper exercise of these federally protected rights and, 
Appellants submit, gives rise to a bona fide claim of right, 
within the meaning of the statute involved.

In addition, in the case of Appellants Griffin et al., each 
of them had valid and duly purchased tickets for admit­
tance to the rides in the park. These Appellants, at the 
time of their arrest, were on one such ride and had ten­
dered the necessary tickets. Therefore, they were acting 
under a bona fide claim of right and were thereby excluded 
from operation of the statute since a ticket to a place of 
public amusement constitutes a contract between the pro­
prietor and the holder. Interstate Amusement Co. v. Mar­
tin, 8 Ala. App. 481, 62 So. 404 (1913).

II.

T he A rrests and C on v iction s of A p p ellan ts C on stitu te  An  
E xerc ise  of S ta te  P o w er  to E nforce R acia l S egregation  in  
V io la tion  of R ig h ts  P ro tected  b y  th e  F ou rteen th  A m en d ­
m en t to  th e  U n ited  S ta tes  C on stitu tion  and B y  42 U.S.C. 
§§ 1981 and 1982.

The arrests and convictions of Appellants implemented 
the racially discriminatory policies of Glen Echo Amuse­
ment Park, a place of public accommodation. Such arrests 
and convictions constituted the use of the state police power 
to enforce those policies. Appellants contend that their 
federal rights thereby were violated. Although the federal 
questions presented here have not been squarely decided 
by the Supreme Court of the United States, the principles 
on which they rely have been clearly enunciated.



13

These basic principles were first expressed in the Civil 
Rights Cases, 109 U.S. 3 (1883), in which the Supreme 
Court declared that the Fourteenth Amendment and the 
rights and privileges secured thereby “ nullifies and makes 
void . . . State action of every kind which impairs the priv­
ileges and immunities of citizens of the United States, or 
which injures them in life, liberty or property without 
due process of law, or which denies to any of them the 
equal protection of the laws.” Supra at 11. Moreover, 
the Court stated that racially discriminatory policies of 
individuals are insulated from the proscription of the 
Fourteenth Amendment only in so far as they are “ un­
supported by State authority in the shape of laws, customs 
or judicial or executive proceedings,” or are “ not sanc­
tioned in some way by the State.” Supra at 17.

Consistent with these expressions, the doctrine has been 
clearly established that state power cannot be used affirma­
tively to deny access to or limit use of public recreational 
facilities because of race. This doctrine has been applied 
to such recreational facilities as swimming pools, Kansas 
City, Mo. v. Williams, 205 F.2d 47 (8th Cir. 1953), cert, 
denied 346 U.S. 826; Tonkins v. City of Greensboro, 276 
F.2d 890 (4th Cir. 1960); public beaches and bathhouses, 
Daivson v. Mayor and City Council of Baltimore, 220 F.2d 
386 (4th Cir. 1955), aff’d per curiam 350 U.S. 877; Depart­
ment of Conservation v. Tate, 231 F.2d 615 (4th Cir. 1956), 
cert, denied 352 U.S. 838; City of St. Petersburg v. Alsup, 
238 F.2d 830 (5th Cir. 1956), cert, denied 352 U.S. 922; golf 
courses, Rice v. Arnold, 45 So.2d 195, (Fla. 1950), vacated 
340 U.S. 848; Holmes v. City of Atlanta, 223 F.2d 93 (5th 
Cir. 1955) aff’d per curiam 350 U.S. 879; City of Greens­
boro v. Simkins, 246 F.2d 425 (4th Cir. 1957); parks and 
recreational facilities, Neiv Orleans City Park Improve­
ment Association v. Detiege, 252 F.2d 122 (5th Cir. 1958), 
aff’d per curiam 358 U.S. 54; and theatres, Muir v. 
Louisville Park Theatrical Ass’n., 202 F.2d 275 (6th Cir. 
1953), aff’d per curiam, 347 U.S. 971; Jones v. Marva 
Theatres, Inc., 180 F.Supp. 49 (D. Md. 1960).



14

Particularly pertinent to the instant case is the state­
ment contained in the decision of the United States Court 
of Appeals for the Fourth Circuit in the Dawson case, 
supra at 387:

. it is obvious that racial segregation in recrea­
tional activities can no longer be sustained as a proper 
exercise of the police power of the state . . . ”

The Court of Appeals in that case specifically overruled 
Durkee v. Murpliy, 181 Md. 259, 29 A.2d 253 (1942), which 
had espoused the doctrine of separate-but-equal in public 
recreational facilities. The Court, of course, based its 
view on the fact that Plessy v. Ferguson, 163 U.S. 537 
(1896), had in effect been overruled by the Supreme Court 
in a series of cases beginning with McLaurin v. Oklahoma 
State Regents, 339 U.S. 637 (1950), as applied to educa­
tional facilities, and the Court stated that it was equally 
inapplicable to any other public facility.

This rule has been followed without distinction between 
recreational facilities which are operated by state authori­
ties in a “ governmental” or “ proprietary” capacity, City 
of St. Petersburg v. Alsup, supra, and facilities which 
have been leased by state authorities to private operators, 
City of Greensboro v. Simkins, supra. The rule therefore 
has been applied in an all-inclusive manner.

The distinction between the cases cited above and the 
instant case is the fact that the facility here involved is 
not operated by or leased from the state, and therefore the 
owners or operators of the park are not themselves af­
fected by the limitations of the Fourteenth Amendment. 
It follows, as has been held by this Court in Drews v. 
Maryland, — Md. — (1961), No. 113, September Term, 
1960, that a private owner or operator of a place of 
public amusement is free to choose his customers on such 
bases as he sees fit, including race or color. I t is equally 
clear, however, that the state can no more lend its legisla­



15

tive, executive or judicial power to enforce private policies 
of racial discrimination in a place of public accommodation 
than it can adopt or enforce such policies in a facility 
operated by it directly. If one is an infringement of 
Fourteenth Amendment rights and an improper exercise 
of the state’s police power, so is the other. Cf. Terry v. 
Adams, 345 U.S. 461 (1953).

The Supreme Court also has enunciated the principle 
that the powers of the state, whether legislative, judicial, 
or executive, cannot be used to enforce racially discrimina­
tory policies of private persons relating to the purchase 
and sale of real property. In Shelley v. Kraemer, 334 U.S. 
1 (1948), the Court held that state courts could not carry 
out the racially discriminatory policies of private land 
owners through judicial enforcement of racial restrictive 
covenants. Moreover, the Court was unwilling to permit 
state courts to grant damages against private landowners 
for breach of such covenants. Barrows v. Jackson, 346 
U.S. 249 (1953). The Court, in holding that judicial en­
forcement of racial discrimination violates the Fourteenth 
Amendment, made it clear “ that the action of the States 
to which the Amendment has reference, includes action of 
state courts and state judicial officers.” Shelley v. 
Kraemer, supra at 18. The assertion that property rights 
of private individuals were paramount was met by the 
Court in stating that:

The Constitution confers upon no individual the 
right to demand action by the State which results in 
the denial of equal protection of the laws to other 
individuals. Supra at 22.

We are not here concerned, nor was the Court in Shelley 
and Barrows, concerned with the questions whether or not 
private citizens are required to sell to Negroes or of the 
power of the state to force them so to sell. The question, 
here, as in Shelly and Barrows, is whether or not the state, 
consistent with the Constitution, can permit the full panoply 
of its power to be used to aid, abet, implement, and effec­



16

tuate discrimination by private entrepreneurs on account 
of race or color. And, in the instant case, the use of state 
power is more odious than in Shelly and Barrows because 
criminal, rather than civil, sanctions have been imposed.

Furthermore, if individuals are attempting to exercise 
federally protected rights, the fact that they are physically 
present on private property which has been opened up to 
the public is of no consequence and does not justify the 
imposition by the state of criminal trespass sanctions.

In Marsh v. Alabama, 326 U.S. 501 (1946), privately 
owned land was being used as a “ company town.” The 
landowner caused the arrest (by a company employee who 
was also a county deputy sheriff) for trespass of a member 
of a religious sect who was distributing literature contrary 
to the wishes of the owner. I t was argued in support of 
the arrest that the landowner’s right of control is coexten­
sive with the right of the homeowner to regulate the con­
duct of his guests. The Court stated:

“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 be­
come circumscribed by the statutory and constitutional 
rights of those who use it.” Supra at 505-6.

Obviously, the respective rights of the parties must be 
recognized and balanced. I t should be noted, however, that 
even the homeowner does not have absolute and inviolable 
rights, as pointed out by the Court in Martin v. Struthers, 
319 U.S. 141 (1943) (ordinance prohibiting door-to-door 
distribution of handbills held invalid as applied to ad­
vertisement of religious meeting).

Glen Echo Amusement Park has been opened by the 
owner as a place of public accommodation, for his finan­
cial advantage, and, following Marsh, he has thereby sub­
ordinated his rights as a private property owner to the con­
stitutional rights of the public who use it.



17

Appellants also rely on 42 U.S.C. § 1981, which pro­
vides that “ all persons within the jurisdiction of the 
United States shall have the same right in every State 
and Territory to make and enforce contracts . . .  as is en­
joyed by white citizens, . . .” , and on 42 U.S.C. § 1982, 
which provides that “all citizens . . . shall have the same 
right . . .  as is enjoyed by white citizens to . . . purchase 
. . . personal property.” Appellants entered Glen Echo 
Amusement Park for the purpose of making contracts 
with the operators of the park to use the facilities located 
there and to purchase food, tickets, and other articles of 
personal property which were on sale to the public. Ap­
pellants Griffin et al., being in lawful possession of valid 
tickets, in fact had entered into contractual relations with 
the operators of the park (see Greenfeld v. Maryland 
Jockey Club of Baltimore, 190 Md. 96, 57 A.2d 335 (1948)), 
and were, at the time of their arrest, seeking to enforce 
those contracts. Without question, Appellants arrests con­
stituted unlawful interference with the exercise of their 
statutory rights under the Fourteenth Amendment to the 
Constitution.

The arguments advanced hereinabove by Appellants were 
urged on the court in Valle v. Stengel, 176 F.2d 697 (3rd 
Cir. 1949), involving facts substantially similar to those in 
the instant case. In Valle, the court held that the convic­
tions of the defendants under the New Jersey trespass 
statute were void on the grounds that they constituted state 
enforcement of privately imposed racial discrimination in 
a place of public amusement in violation of defendants’ 
rights under the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment, and that they constituted 
an unconstitutional interference with defendants’ equal 
rights to make and enforce contracts and to purchase per­
sonal property as set forth in 42 U.S.C. §§ 1981, 1982. 
Appellants rely on that case.

The Court might well inquire as to the means available 
to the owner of a place of public accommodation to enforce



18

his right to pick and choose his customers and to remove 
unwanted persons from his property. Appellants submit 
that the owner may resort to his common-law right of 
reasonable self-help to remove such persons. If the person 
resists to the point of disorderly conduct, or if a breach 
of the peace is imminent or ensues, then resort may be 
had to state authority to redress or prevent such independ­
ent violations of the law. To permit state authorities to 
lend their aid by arresting unwanted persons solely on ac­
count of race or color in a place of public accommodation, 
and to enforce judicially such racially discriminatory poli­
cies through criminal prosecution and conviction goes too 
far.

Appellants are aware of the holding of this Court in 
Drews v. State of Maryland, — Md. — (1961), No. 113, 
September Term, 1960. That case is factually distinguish­
able on at least two grounds. In the Drews case, which 
involved convictions for disorderly conduct, this Court 
relied heavily upon the fact as established by the record 
that the crowd which gathered around the defendants at 
the time of their arrest was angry and on the verge of 
getting out of control, which led this Court to conclude 
that defendants were “ inciting” the crowd by refusing 
to obey valid commands of police officers. In addition, it 
was found by the trial court that the Drews defendants in 
fact acted in a disorderly manner. In the instant case, the 
record is entirely barren of evidence that any element of 
incitement was present. Further, the record repeatedly 
shows that Appellants at all times conducted themselves in 
a peaceful and orderly manner. In this case, therefore, 
disorder and imminent violence were not present, and it 
cannot be said here, as it was said in Drews, that the ar­
rests were made to prevent violence or the further com­
mission of disorderly acts. Appellants submit that this 
case cannot be decided simply by following Drews v. Mary­
land, supra.

This Court is called upon to balance conflicting interests. 
On the one hand, the private businessman, having invited



19

the general public to come upon his land, nevertheless 
seeks to exclude particular members of that public on ac­
count of race and color and asks the state to assist him in 
so doing. On the other hand, members of the public, hav­
ing been invited to use the services offered by the private 
businessman, ask only that the state refrain from assist­
ing him in effectuating his dicriminatory policies.

In striking this balance, Appellants urge this Court to 
take judicial notice of the changes which have occurred in 
the State of Maryland in recent years. Discrimination on 
account of race is now contrary to the public policy of the 
State in all areas of public activity. Bills have been intro­
duced in the legislature to outlaw racial discrimination in 
privately owned places of public accommodation. At least 
one county has established a Human Relations Council to 
deal with residual areas of racial friction. In Baltimore, 
parts of Montgomery County, and elsewhere in the state, 
privately owned hotels, restaurants, bowling alleys and 
other places of public accommodation have been desegre­
gated by the voluntary action of their owners.

All of these developments stem from the recognition that 
racial discrimination is morally wrong, economically un­
sound, inconvenient in practice and unnecessary in fact.

In deciding these cases justice can permit but one result.

C O N C L U SIO N

I t is respectfully submitted that the judgments below 
should be reversed with directions to vacate the convic­
tions and to dismiss the proceedings against Appellants.

C harles  T. D u n ca n  
J o seph  H. S h a r litt  
C laude B. K a h n  

Attorneys for Appellants
L ee  M. H ydem an

Of Counsel





RECORD EXTRACT





E l

No. 3881 Criminal 
S tate of M aryland

Docket Entries

vs.
W illiam L. Griffin  

TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury- 

Trial &c filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 5.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3882, 3883, 3889 and 3892 Criminal.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything to 

say before sentence.
Sep. 12, 1960—Judgment that the Traverser, William L. 

Griffin, pay a fine of Fifty and no/100 dollars ($50.00) 
current money and costs, and in default in the payment 
of said fine and costs, that the Traverser, William L. 
Griffin be confined in the Montgomery County Jail until 
the fine and costs have been paid or until released by due 
process of law.

Sep. 12,1960—Appeal filed, Page No. 6.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed, Page No. 7.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. D u n c a n — Attorneys for Defendant



E2

No. 3882 Criminal 
S tate of M aryland

Docket Entries

y s .

M ic h a e l  A. P roctor 

TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury 

Trial &c. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 5.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3881, 3883, 3889 and 3892 Criminals.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 12,1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything 

to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Michael A. 

Proctor, pay a fine of Fifty and no/100 Dollars ($50.00) 
and costs, and in default in the payment of said fine and 
costs, that the Traverser, Michael A. Proctor, be con­
fined in the Montgomery County Jail until the fine and 
costs have been paid or until released by due process of 
law.

Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3881 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E3

No. 3883 Criminal 
S tate of M aryland

Docket Entries

vs.
C e c il  T. W a sh in g t o n , J r.

TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury 

Trial &c. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3881, 3882, 3889 and 3892 Criminals.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything to 

say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Cecil T. 

Washington, Jr., pay a fine of Fifty and no/100 Dollars 
($50.00) current money and costs and in default in the 
payment of said fine and costs, that the Traverser Cecil
T. Washington, Jr., be confined in the Montgomery 
County Jail until the fine and costs have been paid or 
until released by due process of law.

Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3881 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E4

No. 3889 Criminal 
S tate of M aryland

Docket Entries

vs.

M arvous S aunders 

TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed, 

Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3881, 3882, 3883 and 3892 Criminal.
Sep. 12, I960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds the defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything 

to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Marvous 

Saunders, pay a fine of Fifty and no/100 Dollars ($50.00) 
current money and costs, and in default in the payment of 
said fine and costs that the Traverser, Marvous Saunders, 
be confined in the Montgomery County Jail until the fine 
and costs have been paid or until released by due process 
of law.

Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3881 Criminal.

L. T. Kardy— State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E5

No. 3892 Criminal 
S tate of M aryland

Docket Entries

vs.
Gw en d o ly n  T. G r een e  

TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed, 

Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3881, 3882, 3883 and 3889 and 3892 Crim­
inals.

Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if she had anything 

to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Gwendolyn

T. Greene, pay a fine of Fifty and no/100 dollars ($50.00) 
current money and costs, and in default in the payment 
of said fine and costs, that the Traverser, Gwendolyn T. 
Greene, be confined in the Montgomery County Jail until 
the fine and costs have been paid or until released by 
due process of law.

Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3881 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E6

No. 3878 Criminal 
S tate of M aryland

Docket Entries

vs.
Co rnelia  A. Gr e e n e  

TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury 

Trial &c. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to consolidate this case 

with numbers 3879, 3890, 3891 and 3893 Criminals.
Sep. 13, 1960—Motion and leave to amend warrant and 

amendment filed, Page No. 6.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything 

to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Cornelia A. 

Greene, pay a fine of One hundred and no/100 dollars 
($100.00) current money and costs, and in default in the 
payment of said fine and costs that the Traverser, Cor­
nelia A. Greene, be confined in the Montgomery7 County 
Jail until the fine and costs have been paid or until 
released by due process of law.

Sep. 13,1960—Appeal filed, Page No. 7.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including the 15th day of November, 1960, Page No. 8.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E7

No. 3879 Criminal 
S tate of M aryland

Docket Entries

vs.
H e l e n e  D. W ilson  

TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury 

Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3878, 3890, 3891 and 3893 Criminals.
Sep. 13, 1960—Motion and leave to amend warrant and 

amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 13, I960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything 

to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Helene D. 

Wilson, pay a fine of One Hundred and no/100 dollars 
($100.00) current money, and costs, and in default in the 
payment of said fine and costs that the Traverser, Helene
D. Wilson, be confined in the Montgomery County Jail 
until the fine and costs have been paid or until released 
by due process of law.

Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3878 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E8

No. 3890 Criminal 
S tate of M aryland

Docket Entries

vs.
M a rtin  A. S c h a in  

TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3878, 3879, 3891 and 3893 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and 

amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if he had anything 

to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Martin A. 

Schain, pay a fine of One hundred and no/100 dollars 
($100.00) current money, and costs, and in default in the 
payment of said fine and costs, that the Traverser, Mar­
tin A. Schain, be confined in the Montgomery County 
Jail until the fine and costs have been paid or until 
released by due process of law.

Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to and including November 15, 
1960 filed in No. 3878 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E9

No. 3891 Criminal 
S tate of M aryland

Docket Entries

vs.
R onyl J .  S tew art 

TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and Leave to consolidate this case 

with Numbers 3878, 3879, 3890 and 3893 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and 

amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if he had anything to 

say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Ronyl J. 

Stewart, pay a fine of Fifty and no/100 dollars ($50.00) 
current money, and costs, and in default in the payment 
of said fine and costs, that the Traverser Ronyl J. 
Stewart, be confined in the Montgomery County Jail, 
until the fine and costs have been paid or until released 
by due process of law.

Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3878 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E10

No. 3893 Criminal 
S tate of M akyland

Docket Entries

ys.

J anet A. L ewis 

TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case 

with Numbers 3878, 3879, 3890 and 3891 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and 

amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before 

Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds the defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything 

to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Janet A. 

Lewis, pay a fine of Fifty and no/100 dollars ($50.00) 
current money, and costs, and in default in the payment 
of said fine and costs, that the Traverser Janet A. Lewis,- 
be confined in the Montgomery County Jail until the 
fine and costs have been paid or until released by due 
process of laiv.

Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time 

for transmittal of record to Court of Appeals to and 
including November 15, 1960 filed in No. 3878 Criminal.

L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant



E ll

Stale Warrant

S tate of M aryland , M ontgomery  C o u n ty , to w it:
To James S. McAuliffe, Superintendent of Police of said 

County, Greeting:
W h erea s , Complaint hath been made upon the informa­

tion and oath of Lt. Francis Collins, Deputy Sheriff in and 
for the Glen Echo Park, who charges that William L. 
Griffin, late of the said County and State, on the 30th day 
of June, 1960, at the County and State aforesaid, did un­
lawfully and wantonly enter upon and cross over the land 
of Rekab, Inc., a Maryland corporation, in Montgomery 
County, Mryland, such land at that time having been leased 
to Kebar, Inc. a Maryland corporation, and operated as the 
Glen Echo Amusement Park, after having been duly noti­
fied by an Agent of Kebar, Inc., not to do so in violation of 
Article 27, Section 577 of the Annotated Code of Maryland, 
1957 Edition as amended, contrary to the form of the Act 
of the General Assembly of Maryland, in such case made 
and provided, and against the peace, government and dig­
nity of the State.

You are hereby connnanded immediately to apprehend
the said ............................. —..................  and bring ....h.......
before .......................................................  Judge at ...........
...............................  Montgomery County, to be dealt with
according to law. Hereof fail not, and have you there 
this Warrant.

Justice of the Peace for Montgomery 
County, Maryland

Issued ................................................ 19.......
[Identical warrants were issued against Appellants 

Michael A. Proctor, No. 3882 Criminals, Cecil T. Wash­
ington, Jr., No. 3883 Criminals, Marvous Saunders, No. 
3889 Criminals, and Gwendolyn T. Greene, No. 3892, Crim­
inals.]



E12

Stale Warrant

S tate of M aryland , M ontgomeby  C o u n t y , to  w i t :

To James S. McAuliffe, Superintendent of Police of said 
County, Greeting:

Wttf.rf.as, Complaint hath been made upon the informa­
tion and oath of Lt. Francis Collins, Deputy Sheriff in and 
for the Glen Echo Park, who charges that Cornelia A. 
Greene, late of the said County and State, on the 2nd day 
of July, I960, at the County and State aforesaid, did un­
lawfully and wantonly enter upon and cross over the land 
of Rekab, Inc., a Maryland corporation, in Montgomery 
County, Mryland, such land at that time having been leased 
to Kebar, Inc. a Maryland corporation, and operated as the 
Glen Echo Amusement Park, after having been duly noti­
fied by an Agent of Kebar, Inc., not to do so in violation of 
Article 27, Section 577 of the Annotated Code of Maryland, 
1957 Edition as amended, contrary to the form of the Act 
of the General Assembly of Maryland, in such case made 
and provided, and against the peace, government and dig­
nity of the State.

You are hereby commanded immediately to apprehend
the sa id ............................. —.................. and bring ....h........
before ........................................................ Judge at ..........
............. .................. Montgomery County, to be dealt with
according to law. Hereof fail not, and have you there 
this Warrant.

Justice of the Peace for Montgomery 
County, Maryland

Issued ................................................ 19.......
[Identical warrants were issued against Appellants 

Helene D. Wilson, No. 3879 Criminals, Martin A. Schain, 
No. 3890 Criminals, Ronyl J. Stewart, No. 3891 Criminals, 
and Janet A. Lewis, No. 3893 Criminals.]



E13

2 Excerpts from Transcript of Proceedings (Griffin, et al.)

The above-entitled cause came on regularly for hearing, 
pursuant to notice, on September 12, 1960, at 10:00 o’clock 
a.m. before The Honorable James H. Pugh, Judge of said 
Court, when and where the following counsel were present 
on behalf of the respective parties, and the following pro­
ceedings were had and the following testimony was adduced.

By Mr. McAuliffe: Your Honor, the State will move to 
amend the warrants in all five oases, and I have prepared 
copies of the amendment that we would ask that the Court 
make to these warrants, and I would ask that in each case 
the copy which I have prepared be attached to the original 
warrant, as an amendment to it, and the amendment we 
desire to make is the same amendment in each case and 
would read as follows:

By Judge Pugh: Have the defense lawyers seen it?
By Mr. Duncan: I would like to see it, your Honor. (Mr. 

McAuliffe hands a copy of the proposed amendment to 
defense attorneys). Defense counsel makes no objection to 
the motion for leave to amend the warrants, your Honor.

By Judge Pugh: The motion is granted.
# # # # # # # # # #
3 By Judge Pugh: The pleas are “ not guilty?”

By Mr. Duncan: Yes, your Honor.
* * * * * * * * * *  
6 By Mr. Duncan: I would like, with the Court’s

leave, to reserve the opening statement on behalf of 
the defendants, and I would like to move to dismiss and 
quash the warrants. The prosecutor has stated that the ar­
rests in this case were made by a State officer for the pur­
pose of enforcing a policy of private segregation, put into 
effect and maintained by the owner and lessee of the prem­
ises involved. I submit to the Court that such use of State 
power is unconstitutional. That the application of the 
statute in this case is unconstitutional. The argument 
being that the State may not discriminate against citizens



E14

on the ground of race and color. I t may not do so directly, 
and it cannot do so indirectly. I further move to dismiss 
the warrants—

By Judge Pugh: The Court is not allowed to direct a 
verdict on opening statements. If  the Court sits without 
a jury, it is sitting as a jury, and then the Court is the 
Judge of the law and the facts, so, on opening statements 
we do not recognize motions for a directed verdict. The 
motion is over-ruled.
Whereupon,

Francis J. Collins

a witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified as follows, upon
7 Direct Examination

By Mr. McAuliffe:
Q. Lieutenant, will you identify yourself to the Court? 

A. Francis J. Collins; 1207 E. Capitol Street, Washing­
ton, D. C.

Q. Lieutenant, by whom are you employed, and in what 
capacity? A. I am employed by the National Detective 
Agency and we are under contract to Kebar, Inc., and 
Rekab, Inc.,
# # # # # # # # # #  

Q. By whom are you employed, Lieutenant Collins? 
A. National Detective Agency.

Q. And where are you stationed, pursuant to your em­
ployment with the National Detective Agency? A. My 
present assignment is Glen Echo Amusement Park.

Q. And at Glen Echo Amusement Park from whom
8 do you receive your instructions? A. From the 

Park Manager, Mr. Woronoff.
Q. And for how long have you been so assigned at the 

Glen Echo Amusement Park? A. Since April 2nd, 1960.



E15

Q. What is your connection and capacity with respect 
to the park special police force there! A. I  am the head 
of the special police force at the park.

Q. What instructions have you received from Mr. 
Woronoff, the Park Manager, with respect to the operation 
of the park and your duties in connection therewith! 
* * * * * * * * * *

Q. Now then, Lieutenant, directing your attention to 
the date June 30, 1960, did you have occasion to he at the 
Glen Echo Park at that time! A. I was on duty on that 
date.

Q. And the Glen Echo Amusement Park is located in 
what County and State! A. Montgomery County, Mary­
land.

Q. Directing your attention again to June 30,
9 1960, at a time when you were on duty at Glen 

Echo Amusement Park, did you have occasion to see
the five defendants in this case on that date! A. I did.

Q. Will you relate to the Court the circumstances under 
which you first observed these five defendants at the Glen 
Echo Amusement Park!
* * * * * * * * * *

10 Q. Now, Lieutenant, what first communication, or 
contact, did you have with the five defendants here,

and wdiat were they doing at that time?
By Mr. Duncan: I  object, your Honor. That is the

same question, if I understand it correctly.
By Judge Pugh: The objection is over-ruled.
A. The defendants broke from the picket line and went 

from the picket line—
By Judge Pugh: (interrupting the witness)
Just tell when they came on to the private property of 

the Glen Echo Amusement Park.
A. Approximately 8:15.

By Judge Pugh: All five of them!
11 A. Yes, sir.
* * * * * * * * * *



E16

Q. What, if anything, occurred then?
By Judge Pugh: On the property of Glen Echo Amuse­

ment Park.
A. The five defendants went down through the park to 

the carousel and got on to the ride, on the horses and the 
different animals. I then went up to Mr. Woronoff and 
asked him what he wanted me to do. He said they were 
trespassing and he wanted them arrested for trespassing, 
if they didn’t get off the property.

Q. What did you tell them to do? A. I went to the 
12 defendants, individually, and gave them five minutes 

to get off the property.
By Mr. Duncan: I object and move to have that answer 

stricken. I t  is not relevant.
By Judge Pugh: The objection is over-ruled.
Q. Then, Lieutenant, will you relate the circumstances 

under which you went to the carousel, and what you did 
when you arrived there "with respect to these five defend­
ants? A. I  went to each defendant and told them—-

Q. (interrupting the witness) F irst of all, tell us what 
you found when you arrived there. Where they were, 
and what they were doing. A. Each defendant was either 
on a horse, or one of the other animals. I went to each 
defendant and told them it was private property and it 
was the policy of the park not to have colored people on 
the rides, or in the park.

Q. Now, will you look upon each of the five defendants 
and can you now state and identify each of the five de­
fendants seated here as being the five that you have just 
referred to? A. These are the five defendants that I just 
referred to.

By Mr. Duncan: I would object to that and ask that he 
be required to identify each defendant individually. These 
are five separate warrants.

By Judge Pugh: Can you identify each one of these
defendants individually?

A. Yes.13



E17

By Judge Pugh:
Q. Did you tell them to get off the property? A. Yes.
Q. What did each one of them say when you told them 

that? A. They declined to leave.
Q. What did they say? A. They said they declined to 

leave the property. They said they declined to leave and 
that they had tickets.

18 Q. During the five minute period that you testi­
fied 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 they were under arrest for trespassing. I  
then escorted them up to our office, with a crowd milling 
around there, to wait for transportation from the Mont­
gomery County Police, to take them to Bethesda to swear 
out the warrants.

By Mr. Duncan: At this point I  renew my Motion to 
quash the warrants.

By Judge Pugh: The motion is denied.
By Mr. Duncan: May I state what the grounds are,

your Honor?
By Judge Pugh: 

case.
By Mr. Duncan 

beginning.
By Judge Pugh:

Court has ruled on it.
Appeals.

You can state that at the end of the

I am required to state this at the

You have stated your Motion and the 
You may argue it to the Court of

20 Mr. McAuliffe Resumes Examination of the W itness:
Q. Lieutenant, how were you dressed at the time you 

approached the defendants and when you warned them? 
A. I  was in uniform.

Q. What uniform was that? A. Of the National Detec­



E18

tive Agency; blue pants, white shirt, black tie and white 
coat and wearing a Special Deputy Sheriff’s badge.

Q. What is your position, or capacity, with re-
21 spect to being a Deputy Sheriff? Are you, in fact, 

a Deputy Sheriff of Montgomery County? A. I am
a Special Deputy Sheriff of Montgomery County, State 
of Maryland.

Q. And specifically by what two organizations are you 
employed? A. Rekab, Inc., and Kebar, Inc.

By Mr. McAuliffe: You may cross-examine.
By Mr. Duncan: Is it my understanding that this

witness’s duties have been admitted, subject to proof?
By Judge Pugh: Subject to agency. Agency has not

been established yet. I  sustained the objection on that 
proffer.

Cross-Examination 
By Mr. Duncan:

Q. You just said you are employed by Rekab, Inc., and 
Kebar, Inc., is that correct? A. I am employed by the 
National Detective Agency and they have a contract with 
Kebar, Inc., and Rekab, Inc.

Q. Who pays your salary? A. The National Detective 
Agency.

Q. And do you have any other income from any other 
source. A. No, sir.

Q. Do you receive any money directly from Rekab,
22 Inc., or Kebar, Inc.? A. No, sir.

Q. Your salary, in fact, is paid by the National 
Detective Agency; is that correct? A. Yes.

Q. What kind of agency is thaf? A. A private detective 
agency.

Q. Is it incorporated? A. Yes, sir.
Q. In what State? A. The District of Columbia.
Q. Are you an officer of that corporation? A. No, sir. 
Q. Are you an officer of either Rekab, Inc., or Kebar, 

Inc.? A. No, sir.



E19

Q. Mr. Collins, you testified that you saw these defend­
ants prior to the time they entered the park; is that 
correct ? A. Yes, sir.

Q. Had you ever seen them before? A. No, sir.
Q. When you saw them inside the park, did you recog­

nize them as the persons you had seen outside the park? 
A. Yes, sir.

Q. Now you stated that you told them it was the policy 
of the park not to admit colored people. Is that, in fact, 

the policy of the park? A. Yes.
23 Q. Has it always been the policy of the park? 

A. As far as I know.
Q. How long had you worked at Glen Echo Park? 

A. Since April 2, 1960.
Q. And before that time were you employed by the 

National Detective Agency? A. That is right.
Q. But you were assigned to a place other than Glen 

Echo? A. That is right.
Q. To your knowledge, had negroes previously ever been 

admitted to the park? A. Not to my knowledge.
Q. Now did you arrest these defendants because they 

were negroes?
By Mr. McAuliffe: Objection.
By Judge Pugh: Over-ruled.
A. I  arrested them on orders of Mr. Woronoff, due to 

the fact that the policy of the park was that they catered 
just to white people; not to colored people.

Q. I  repeat my question. Did you arrest these de­
fendants because they were negroes? A. Yes, sir.

Q. Were they in the company of other persons, to your 
knowledge? A. Yes, sir.

24 Q. Were they in the company of white persons? 
A. Where?

Q. When they were on the carousel. A. There were 
white persons on the carousel when they were there.

Q. To your knowledge, were they in the company of 
white persons? A. One white person was with one of the 
colored people.



E20

Q. With which colored person was the white person 
with! A. This gentlemen right here (indicating one of 
the defendants).

Q. Do you know his name? A. No, I don’t know.
Q. Did you arrest the white person who was in his 

company? A. No, sir; I  did not.
Q. Why not? A. At the time we got back to the carousel, 

she had left. By the time I had these defendants out, she 
had gone, as far as I  know.

Q. Does this policy of Glen Echo Park extend to all 
negroes, no matter who they are?

By Mr. McAuliffe: Objection.
By Mr. Duncan: I  will rephrase it.

25 Q. Does it extend to negroes, without regard to 
how they are dressed, or how they conduct them­

selves ?
Mr. McAuliffe: Objection.
By Judge Pugh: Over-ruled.
By Mr. Duncan: Will the Reporter read the question, 

please? (the last question was read back).
A. Yes; that is right.
Q. Did it come to your attention, Mr. Collins, that these 

defendants had tickets when they were arrested ? A. They 
showed me tickets.

Q. Did you make any offer to these defendants with re­
spect to the tickets which they had? Did you offer to 
refund them any money? A. No, sir.

Q. Are you familiar with the manner in which tickets 
are acquired and sold at Glen Echo Amusement Park? 
A. Yes, sir.

Q. Will you tell the Court how that is? A. They are 
sold through ticket booths.

Q. Are the ticket booths located inside the park, or are 
they located at the entrance? A. Inside the park.

Q. Is there any ticket booth at the entrance to the park? 
A. No.

26 Q. So the access to the park from the public 
highway is not obstructed? A. No, sir.



E21

Q. Now, if you know, is it customary at the park for one 
person to purchase tickets and transfer them to another? 
A. I would not know.

Q. Are you ever at the park, Mr. Collins? A. Yes.
Q. Have you ever observed tickets being purchased? 

A. Yes. I have.
Q. Have you ever seen a father purchase tickets and 

give them to his children? A. Yes.
Q. Then you do know that that is done; is that correct? 

A. In that case; yes.
Q. Do you know of any other cases in which it is done? 

A. No.
# # * # * * # # # #
36 Q. Would you say, Mr. Collins, that his conduct 
was peaceful and orderly? A. At the time I spoke to him.

Q. He didn’t become disorderly at any time, in fact did 
he A. No, sir.

37 Q. There was no loud talking? A. Not that I 
know of.

Q. And certainly no one was drunk or intoxicated, or 
anything like that? A. I  wouldn’t know.

Q. You arrested them, didn’t you? A. You said no one. 
Q. No one of these defendants were intoxicated, were 

they? A. As far as I know; no.
Q. You had occasion to talk to each one of them, didn’t 

you? A. Yes.
Q. Can’t you say whether any of them had been drink­

ing or not? A. No.
Q. Have you had occasion to arrest people for being 

intoxicated in Glen Echo? A. Yes.
Q. You are a police officer, aren’t you? A. Yes.
Q. Don’t you claim some expert knowledge of such 

matters? A. Yes; by their actions.
Q. Based on the actions of these people can’t you say 

that they were not, in fact, intoxicated? A. As far as 
I know they were not intoxicated. 
* # * * # # # * # *



E22

38 By Judge Pugh: He said they were not intoxi­
cated and did not appear to be. The objection is 

sustained. Did you smell any ordor of alcohol on any of 
them?

A. No, sir.
Mr. Duncan Continues Examination:

Q. You testified that the defendant, Griffiin, was peace­
ful and orderly. Was the same true as to all the other 
defendants? A. Yes.

Q. At all times throughout? A. Yes, sir.
Q. At the time you arrested them, Mr. Collins, did any 

of them ask to speak to the management? A. No, sir. 
Q. Did any of them tell you that they wanted to ride on

the merry-go-round? A. Yes, sir. 
* # # # # # * * * *
67 Abram Baker

a witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified, upon

Direct Examination
By Mr. McAuliffe:

Q. Mr. Baker, will you state to the Court your name
68 and address? A. Abram Baker, 3315 Wisconsin 

Avenue, N. W.
Q. What is your position or capacity in connection with 

the Maryland Corporation Rekab, Inc. ? A. I am President.
Q. What is your position with the Maryland Corporation 

Kebar, Inc.? A. I  am President.
Q. For how long have you been President of Rekab, 

Inc.? A. Since June 17, 1955.
Q. How long have you been President of Kebar, Inc.? 

A. Since June 17, 1955.
Q. What is the relationship of Rekab, Inc., and Kebar, 

Inc., to the ownership and operation of the Glen Echo 
Amusement Park, here in Montgomery County, Maryland?



E23

A. Rekab, Inc., owns Kebar, Inc., Kebar, Inc., is the 
operating company.

Q. Which is the ownership of the land of Glen Echo 
Amusement Park? A. Rekab, Inc. 
* * * * * * * * * *
72 Q. As President of Rekab, Inc., and Kebar, Inc., 

I ask you whether the two respective corporations
are still in effect, and Maryland corporations? A. They 
are.

Q. Mr. Baker, I show you this lease and ask you if you 
can identify it? A. Yes, sir.

Q. And what is that instrument? A. This is a lease 
on the ground from Rekab, Inc., turning it over to Kebar, 
Inc., as an operating company.

Q. Did you sign this lease? A. I sure did.
By Mr. McAuliffe: We offer this lease into evidence as 

State’s Exhibit #7.
73 Mr. Duncan: No objection.

Judge Pugh: Admit it in evidence.
Q. Is the carousel site a part of this lease? A. Yes; it 

is leased to Kebar, Inc.
Mr. McAuliffe Continues:

Q. Directing your attention to this lease, State’s Ex­
hibit #7 , Mr. Baker, I  ask you whether that lease was in 
effect on the date of June 30th of this year? A. Yes, sir; 
it was.

Q. Now, as President of Rekab, Inc., and Kebar, Inc., 
will you describe what policy is maintained by the two 
respective corporations with respect to the admission of 
negroes to the Glen Echo Amusement Park? A. I don’t 
get your question.

Q. What policy is maintained by Rekab, Inc., and Kebar, 
Inc., with respect to the admission of negroes to the 
amusement park? A. They are not allowed in the park.

Q. And what instructions and what authority has been 
given by Rekab, Inc., and Kebar, Inc., by you as President



E24

of each of these corporations, to Lieutenant Collins with 
respect to this park policy? A. To give them all due 
respect and if they do not do what he asks them to do 
within a time that he thinks it should have been done, 
that he should arrest them.
* * * * * * * * * *
74 Mr. McAuliffe Continues:

Q. Now then, Mr. Baker, what agency does the 
park employ, specifically what agency does Rekab, Inc., 
and Kebar, Inc., employ for purposes of maintaining law 
and order on the park property? A. This year it was the 
National Detective Agency.

Q. And who, in the National Detective Agency, was 
designated as the director or the man in charge of the 
police force on the park grounds? A. Lieutenant Collins. 

Q. And as such did you have occasion to give Lieutenant 
Collins any instructions with respect to a park

75 policy against admitting negroes? A. Yes.
Q. And what specific instructions did you give 

him with respect to authority to order people off of the 
park premises? A. Well, he was supposed to stop them 
at the gate and tell them that they are not allowed; and if 
they come in, within a certain time, five or ten minutes— 
whatever he thinks, why he would escort them out.

Q. In the event they didn’t see fit to leave at his warn­
ing, did you authorize Lieutenant Collins to have these 
people arrested? A. Yes.

Q. On a charge of trespass? A. On a charge of 
trespassing.
* * * * * * * * * *
76 Cross-Examination

By Mr. Duncan:
* * * * * * * * * *  
84 Q. Would you tell the Court what you told 

Lieutenant Collins relating to the racial policies of



E25

the Glen Echo Park? A. We didn’t allow negroes and in 
his discretion, if anything happened, in any way, he was 
supposed to arrest them, if they went on our property.

Q. Did you specify to him what he was supposed to 
arrest them for? A. For trespassing.

Q. You used that word to him? A. Yes; that is right. 
Q. And you used the word “ discretion”—what did you 

mean by that? A. To give them a chance to walk off; if 
they wanted to.

Q. Did you instruct Lieutenant Collins to arrest all 
negroes who came on the property, if they did not leave? 
A. Yes.

Q. That was your instructions? A. Yes.
Q. And did you instruct him to arrest them be- 

85 cause they were negroes? A. Yes.
Q. Did you instruct him to arrest white persons 

who came on the park property with colored persons? 
A. If  they were doing something wrong, they are supposed 
to be arrested.

Q. In other words, your instruction as to negroes was to 
arrest them if they came into the park, and refused to 
leave, because they were negroes; and your instruction 
was to arrest white persons if they were doing something 
wrong? A. That is right.
* # # * * # # * * *

92 Mr. Duncan Continues Cross-Examination of the 
Witness:

Q. Does Glen Echo, operating through its advertising 
agency, advertise in the Washington, D. C. area? A. I 

would say so.
93 Q. Does it advertise in the Press? A. What do 

you mean “ The Press?”
Q. By newspapers? A. Yes.
Q. By radio? A. Yes.
Q. And by television? A. Yes.
Q. On the back of Capital Transit Busses? A. No. 
Q. I t does not? A. No, sir.



E26

Q. Do any of the advertisements which the park makes 
refer to racial policies of the park? A. I  don’t get that.

Q. Do any of the advertisements which you have referred 
to, refer to the racial policies of the park? A. I don’t 
think so.

Q. Do any of them state that negroes are not welcome? 
A. They didn’t say they were.

Q. Are they addressed to the public generally A. I 
would say so.
# # # # * # * * * *

100 Re-Re-Direct Examination
By Mr. McAuliffe:

Q. Who are the other officers of this corporation? A. 
My brother.

Q. What is his position? A. Secretary and Treasurer. 
Q. What is his name? A. Sam Baker.
Q. 'Who is the other officer of the corporation? A. My 

wife.
Q. And have you and your brother, and your wife, con­

ferred, and are you in agreement with respect to the policy 
to be followed at Glen Echo Park? A. We sure are.

101 Q. And who is your General Manager at the Glen 
Echo Park? A. Leonard Woronoff.

Q. And is he instructed to carry out all the policies by 
you and your brother and your wife, with respect to the 
operation of the park, as you see fit? A. He is.

Q. You take the position, Mr. Baker, that as the owner 
of this private property, or as President of the corpora­
tion, you have the right to determine who shall come on 
to your property, and the right to arrest them if they do 
not leave A. Yes.

Mr. McAuliffe: I object to that.
By Judge Pugh: Objection sustained.

# # # * # # * * * *  
By Mr. McAuliffe: If  the Court please, the State 

rests.
105



E27

By Mr. Duncan: May it please the Court, at this time 
I would like to move to quash the warrants of arrest, or 
to move for their dismissal, on a number of grounds which 
I would like to urge on the Court, and the first ground 
is constitutional grounds, namely, that the application of 
the Maryland trespass statute, Section 577, under the cir­
cumstances of this case, is unconstitutional and constitutes 
a denial of due process of law. Marsh v. Alabama, 326
U. S. 501. The State of Maryland may not assist the 
owners of the park here in carrying out a pattern of 
private racial discrimination.

The Supreme Court held in 1947 that although the 
covenants were valid as private agreements, the State 
could not enforce them, so we say here the discrimination 
which may exist at Glen Echo Park is a private matter 
between the park and the would be negro patrons, but 
that Glen Echo cannot call upon the State of Maryland 

to enforce and carry out that policy.
106 In this case I think it is quite clear that the 

action of the state is resorted to for the purpose of 
enforcing racial discrimination. They were excluded from 
the park, not because they were trespassers, but because 
they were negroes. We contend that these defendants are 
entitled to the equal protection of the law.

By Judge Pugh: Are the property owners entitled to 
the equal protection of the law?

Mr. Duncan: Most assuredly. We contend further that 
the application of the statute in this way deprives the de­
fendants of due process of law, because it results in their 
arrest. We advance a second constitutional argument, 
your Honor, and that is the interference by the State 
officers in this case deprives these defendants of statutory 
rights which are secured to them by the laws of the 
United States. I  refer specifically to Sections 1981, 1982 
and 1983 of Title 42 of the United States Code. As your 
Honor is aware, Section 1981 provides that every person 
within the jurisdiction of the United States shall have



E28

the same right, among other things, to make and enforce 
contracts, as is enjoyed by white persons, to purchase, 
acquire, hold and sell real property. It is declared to be a 
right which everyone shall enjoy. In Section 1983 it is 
made actionable for any person, acting under color of 
law, to deprive anyone in the exercise of his Section 1981 
right. We submit that the action of Lieutenant Collins in 

this case, in his capacity as a State police officer, 
107 interfered with the equal enjoyment of the right 

which these defendants had to attempt to enter into 
or make contracts with Glen Echo Amusement Park. 
Williams v. Kansas City, 104 Fed. (2nd). So on these two 
constitutional grounds we move that the warrants of ar­
rest be quashed and dismissed on the ground that the 
statute as applied to these facts is unconstitutional.

And then we make the same motion on a number of 
State grounds. First, the Maryland statute, Section 577, 
begins as follows: “ Any person or persons who shall
enter upon or cross over the premises of private property, 
after having been duly notified by the owner, or his agent, 
not to do so, shall be deemed guilty of a misdemeanor.” 
This section has only been considered one time by the 
Court of Appeals of Maryland. Krauss v. State, 216 Md. 
369. That was a case involving the entry into a garage, 
by employees of a finance company who were undertak­
ing to repossess an automobile which was in the garage. 
The owner of the garage land had a lien on the automobile 
and had had discussions with the defendants prior to their 
entry, when he notified the defendants that he had a lien 
on the automobile. Notwithstanding this the defendants 
entered the land and removed the automobile. Upon 
conviction, and appeal to the Court of Appeals, that con­
viction was reversed on the ground that there was in­
sufficiency of notice beforehand. Here we submit, and I 
think the testimony is uncontradicted on this point—Mr. 
Collins, himself, testified that his first communication was 
after they had come on to the land, and I submit to the



E29

Court that the statute cannot he violated. We base
108 our motion to dismiss on the ground that the 

statute, by its very terms applies only to wanton
trespass. Reading again from the statute: “ It being the 
intention of this section only to prohibit any wanton tres­
pass upon the private property of others.” We have 
been unable to find a case which defines the phrase “ wanton 
trespass.” The Court of Appeals of Maryland, however, 
has construed the meaning of the word “ wanton” in other 
circumstances, and I cite on that Dennis v. Baltimore 
Transit Co., 189 Md. 610, 617, and there, in discussing the 
meaning of the word “ wanton” the Court of Appeals said 
“ the word ‘wanton’ means characterized by extreme reck­
lessness and utter disregard for the rights of others” and 
I submit that if this Court were to take that as a test of 
wanton trespass, then the evidence would have to show 
that these defendants entered Glen Echo Park with ex­
treme recklessness and complete disregard of the rights of 
others.

Glen Echo advertised to the public generally. Its ad­
vertisements were not restricted as to race and any 
member of the public was entitled to respond to this 
advertisement and even if it should eventuate that negroes 
were excluded wantonness under the statute is further 
negated by the fact that all of these defendants had 
tickets, and so far it doesn’t appear where they obtained 
the tickets, but there is testimony that the tickets were 
transferrable. They had tickets on the merry-go-round, 
and Mr. Collins testified that he saw the ticket in Mr. 
Griffin’s hand. I submit that a person who enters an 
amusement park and comes into possession of a ticket, 
whether purchased by him or given to him by someone 

else, cannot be said to be guilty of wanton trespass.
109 The third ground we base our motion on is that 

the statute, section 577, provides that—if I may read
that section—“ and further provided that nothing in this 
section shall be construed to include in its provisions the 
entry upon or crossing over any land when such entry or



E30

crossing is done under a bona fide claim of right or owner­
ship of said land.” Now, we submit that these defendants 
were on the land in the exercise of several bona fide rights. 
They were publicly invited on the land. Secondly, upon 
coming on the land they came into lawful possession of 
tickets, which, in the ordinary practice of the park, were 
clearly transferable. And it can be urged on their behalf 
that they have a constitutionally protected right to be 
on the land. If  the federal statute gives to them the same 
right to make contracts as white persons, at least they were 
on the land in the exercise of this federal statutory right 
and they cannot be said to be engaged in a wanton tres­
pass or that this was not a bona fide claim of right.

For all of these resons we urge that the warrants in 
these cases as against all five defendants should be dis­
missed and I move for a finding of not guilty, based on 
the insufficiency of the evidence.

By Judge Pugh: The motion for a directed verdict is 
denied.

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 law, was examined and testified as follows, upon

Direct Examination 
By Mr. Duncan:

Q. For the record, state your name and address. A. Kay 
Freeman; 732 Quebec Place, N. W.

Q. Miss Freeman, are you acquainted with the five de­
fendants in this case1? A. Yes.

Q. Do you know them each by name? A. Yes.
Q. How long have you known them? A. I know some 

of them for different lengths of time. I guess the longest 
would be two years.

Q. Did you have occasion to be present at Glen Echo 
Amusement Park on the night of June 30th, 1960? A. Yes.



E31

Q. Were you in the company of these defendants, and 
other persons! A. Yes.

Q. Did you enter the park? A. Yes, I did.
Q. Did you enter it in company with these defendants? 

A. Yes.
Q. Were you on the merry-go-round at the time

111 they were arrested? A. Yes.
Q. Did you see them arrested? A. Yes.

Q. Were you arrested? A. No.
Q. Did you see each of these defendants arrested? A. 

Yes.
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. 
Q. Prior to the time that you entered the premises of 

the Glen Echo Amusement Park, did anyone tell you 
personally that you should not enter? A. No one did.

Q. I mean anyone representing the park. A. No one. 
Q. Did Mr. Woronoff say anything to you? A. No.
Q. Did Mr. Collins say anything to you? A. No.
Q. Were there any signs posted anywhere around there? 

A. I  didn’t see them.
112 Q. The conduct of these defendants at all times 

was proper, wasn’t it?
By Mr. McAuliffe: Objection.
By Mr. Ducan: I will rephrase it.
Q. What was the conduct of these defendants, during 

the time they were in the park? A. Their conduct was 
orderly.

Q. Have you ever seen any advertisements relating to 
Glen Echo Amusement Park? A. Yes every day, on tele­
vision, on street cars and on radio.

Q. You say you went to Glen Echo in a group, with these 
defendants? A. That is right.

By Mr. Duncan: I have no further questions. 
# # * # * * * # * *



E32

113 Cross-Examination
By Mr. McAuliffe:

Q. Miss Freeman, this advertisement that you read, is 
that what brought you out to Glen Echo Park on June 
30th? A. I wanted to use the facilities and I thought this 
would be a good way of doing it.

Q. You thought you would be able to use the facilities 
of Glen Echo Park? A. I  thought I might. 
* * * * * * * * * *
119 Q. Now, you were on the carousel, or the merry- 

go-round, were you not? A. Yes.
Q. Were you riding with these five defendants? A. I 

was near them.
Q. Well; how near? A. Perhaps two or three rides away. 
Q. And when you saw these five defendants being ar­

rested, and taken away, did you remain on the carousel? 
A. Yes; I did.

Q. For how long did you remain there? A. I remained
for about thirty minutes.

Q. A half an hour? A. That is right.
120 Did the carousel start up during that time? A. No.
* * * * * * * * * *  

Q. So your best recollection is that it was approximately 
half an hour that you sat on the carousel, and the carousel 
did not start up? A. No, it did not.

Q. Did it start up after you left? A. I don’t know.
* * * * * * * * * *  
128 By Mr. Duncan: We have no further evidence to 

offer your Honor, and I would like to renew my
motions.

129 By Air. Duncan: I  renew my motion for a directed 
verdict, and to quash the warrants.

By Judge Pugh: The motion is over-ruled.



E33

130 Judge Pugh's Oral Opinion (Griffin, el al.)

It is very unfortunate that a case of this nature comes 
before the criminal court of our State and County. The 
nature of the case, basically, is very simple. The charge 
is simple trespass. Simple trespass is defined under Sec­
tion 577 of Article 27 of the Annotated Laws of Maryland, 
which states that “ any person or persons who shall enter 
upon or cross over the land, premises, or private property 
of any person or persons in this State, after having been 
duly notified by the owner or his agent not to do so shall 
be deemed guilty of a misdemeanor.” Trespass has been 
defined as an unlawful act, committed without violence, 
actual or implied, causing injury to the person, property 
or relative rights of another. This statute also has a 
provision in it which says that it is the intention of the 
Legislature as follows: “ It is the intention of this sec­
tion only to prohibit any wanton trespass upon the private 

land of others.” Wanton has been defined in our
131 legal dictionaries as reckless, heedless, malicious; 

characterized by extreme recklessness, foolhardiness
and reckless disregard for the rights or safety of others, 
or of other consequences.

There have been many trespass cases in Maryland. As a 
matter of fact, there is one case now pending before the 
Court of Appeals of Maryland where the racial question has 
been injected into a disorderly conduct case, and that is 
the case of “ State of Maryland versus Dale H. Drews” , 
decided some few months ago. In that case, Judge 
Menchine filed a lengthy written opinion, in which he 
touched upon the rights of a negro to go on private 
property, whether it is a semi-public or actually a public 
business, and in that case Judge Menchine said as follows:

“ The rights of an owner of property arbitrarily to re­
strict its use to invitees of his selection is the established 
law of Maryland.” This Court agrees with that opinion, 
and unless that case is reversed by the Court of Appeals



E34

of Maryland, at its session this Fall, that will continue to 
be the law of Maryland.

That statement by Judge Menchine is based upon author­
ities of this State, and not too far back, in the case of 
Greenfeld versus the Maryland Jockey Club, 190 Md. 96, 
in which the Court of Appeals of this State said: “ The 
rule that, except in cases of common carriers, inn-keepers 
and similar public callings, one may choose his customers, 
is not archaic.”

If the Court of Appeals changes its opinion in the 
132 190 Maryland case, then we will have new law in

this State on the question of the right of a negro to 
go on private property after he is told not to do so, or 
after being on it, he is told to get off.

In this Country, as well as many, many counties in the 
United States, we have accepted the decision of integration 
that has been promulgated by the Supreme Court in the 
school cases, and without and provocation or disputes of any 
consequence. There is no reason for this Court to change 
that method of accepting integration, but when you are con­
fronted with a question of whether or not that policy 
can be extended to private property, we are reaching into 
the fundamental principles of the foundation of this coun­
try.

The Constitution of the United States has many provi­
sions, and one of its most important provisions is that of 
due process of law. Due process of law applies to the right 
of ownership of property—that you cannot take that prop­
erty", or you cannot do anything to interfere with that man’s 
use of his property, without due process of law.

Now, clearly, in this case, which is really a simple case; 
it is a simple case of a group of negroes, forty in all, 
getting together in the City of Washington, and coming 
into Maryland, with the express intent, by the testimony of 
one of the defense witnesses, that they were going to make 
a private corporation change its policy of segregation. In 
other words, they were going to take the law in their own



E35

hands. Why they didn’t file a civil suit and test out
133 the right of the Glen Echo Park Amusement Com­

pany to follow that policy is very difficult for this
Court to understand, yet they chose to expose themselves 
to possible harm; to possible riots and to a breach of 
the peace. To be exposed to the possibility of a 
riot in a place of business, merely because these de­
fendants want to impress upon that business their 
right to use it, regardless of the policy of the corporation, 
should not be tolerated by the Courts. Unless the law of 
this State is changed, by the Court of Appeals of Maryland, 
this Court will follow the law that has already been adopted 
by it, that a man’s property is his castle, whether it be 
offered to the public generally, or only to those he desires 
to serve.

There have been times in the past, not too many years 
back, when an incident of this kind would have caused a 
great deal of trouble. It could have caused race riots, and 
could have caused bloodshed, but now the Supreme Court, 
in the school case in 1954, has decided that public schools 
must be integrated, and the people of this County have ac­
cepted that decision. They have not quibbled about i t ; They 
have gone along with it without incident. We are one of 
the leading counties in the United States in accepting that 
decision. If the Court of Appeals of Maryland decides 
that a negro has the same right to use private property as 
was decided in the school cases, as to State or Government 
property, or if the Supreme Court of the United States so 

decides, you will find that the places of business in
134 this County will accept that decision, in the same 

manner, and in the same way that public authorities
and the people of the County did in the School Board 
decision, but there is nothing before this Court at this 
time except a simple case of criminal trespass. The 
evidence shows the defendants have trespassed upon 
this Corporation’s property, not by being told not to 
come on it, but after being on the property they were 
told to get off.



E36

Now it would be a ridiculous thing for this Court to 
say that when an individual comes on private property, and 
after being on it, either sitting on it or standing on it, and 
the owner comes up and says, “ Get off my property”, and 
then the party says “ You didn’t tell me to get off the prop­
erty before I came on it, and, therefore, you cannot tell 
me to get off now” he is not guilty of trespass because he 
was not told to stay off of the property. I t is a wanton 
trespass when he refuses to get off the property, after being 
told to get off.

One of the definitions of wanton is “ foolhardy” and this 
surely was a foolhardy expedition; there is no question 
about that. When forty people get together and come 
out there, as they did, serious trouble could start. It is a 

simple case of trespass. It is not a breach of the 
135 peace, or a case of rioting, but it could very easily 

have been, and we can thank the Lord that nothing 
did take place of such a serious nature.

It is not up to the Court to tell the Glen Echo Amuse­
ment Company what policies they should follow. If they 
violate the law, and are found guilty, this Court will sen­
tence them.

It is most unfortunate that this matter comes before the 
Court in a criminal proceeding. It should have been 
brought in an orderly fashion, like the School Board case 
was brought, to find out whether or not, civilly, the Glen 
Echo Park Amusement Company could follow a policy of 
segregation, and then you will get a decision based on the 
rights of the property owner, as well as the rights of these 
defendants. So, the Court is very sorry that this case has 
been brought here in our courts.

It is my opinion that the law of trespass has been vio­
lated, and the Court finds all five defendants guilty as 
charged.



E37

Excerpts from Transcript of Proceedings (Greene, et al.)

2 The above-entitled cases, having been consolidated 
for purposes of trial, by stipulation of counsel, came

on for hearing, pursuant to notice, on September 13, 1960, 
at 9:30 o’clock a.m. before The Honorable James H. Pugh, 
Judge of said Court, when and where the following counsel 
were present on behalf of the respective parties, and the 
following proceedings were had, and the following testi­
mony was adduced.

By Mr. McAuliffe: Your Honor, we will call No. 
3878, Cornelia A. Greene; No. 3879, Helene D. Wilson; 
No. 3890, Martin A. Schain; No. 3891, Ronyl J. Stewart and 
No. 3893, Janet A. Lewis, and the State in each of these 
cases will move to amend the respective warrants, and I 
have prepared copies of the proposed amendments for the 
Court and for counsel.

By Judge Pugh: Any objection, Mr. Sharlitt?
By Mr. Sharlitt: No objection.
By Judge Pugh: The motion for leave to amend is

granted. File an amended warrant in each case. What 
is the plea, Mr. Sharlitt?

By Mr. Sharlitt: Not guilty as to each defendant.
3 By Judge Pugh: Do you submit it to the Court? 

Mr. Sharlitt: In each case, sir.
By Mr. McAuliffe: The State waives opening statement 
By Mr. Sharlitt: I will waive it until the close of the 

State’s case.
Whereupon,
* # # * * # « # * •  

11 Francis J. Collins

A witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified as follows, upon

Direct Examination 
By Mr. McAuliffe:

Q. Give us your name and your address. A. Francis
J. Collins, 1207 E. Capitol Street, Washington, D. C.



E38

Q. Where are you employed and in what capacity? A. 
I am employed at the National Detective Agency, and as­
signed to Glen Echo Amusement Park.

Q. Directing your attention to the date of July 2nd of 
this year, 1960, were you so assigned to the Glen Echo 
Amusement Park? A. Yes, sir.

Q. At the time you were assigned to the Glen Echo
12 Amusement Park on July 2,1960, from whom did you 

receive your instructions with respect to your duties
and responsibilities? A. The park Manager.

Q. Who was that? A. Leonard Woronoff.
Q. Now, Lieutenant, directing your attention to the five 

defendants who are seated here at the counsel table, did 
you have occasion to see them in and about the Glen Echo 
Park, in or about the end of June or the first of July? A. 
I did.
* * * * * * * * * *
13 Q. What were the circumstances under which they 

[Appellants] entered the Glen Echo Amusement
Park property? A. They broke out of the picket line and 

ran from the picket line to the Ranch Restaurant
14 which is located inside the park.

Q. Now, Lieutenant, what, if anything occurred 
after they broke from the picket line and ran to the res­
taurant? A. They ran up to the counter and requested 
service.

Q. And what, if anything, was done then, Lieutenant? 
A. I notified the five defendants that they were undesirable 
on the park property and I ordered them to leave immedi­
ately or be placed under arrest for trespassing.

Q. What occurred then? A. They immediately turned 
their backs on me and requested service again. 
* * * * * * * * * *
15 Q. They turned their backs on you, Lieutenant, 

following your ordering them out of the park? What
occurred then? A. I  tapped each one on the shoulder, and



E39

as they turned around, I told them they were under arrest 
for trespassing.

Q. And then as you placed them under arrest for tres­
passing where did you take them? A. We escorted them 
to our office and then we had transportation by Montgomery 
County police to Bethesda, where we swore out the war­
rants.

Q. Was this restaurant on the property of the Glen Echo 
Amusement Park? A. Yes, sir. 
* * * * * * * * * *
16 Q. Now then, Lieutenant—incidentally, what is 

your connection with Rekab and Kebar, Incorpo­
rated? A. I have charge of the police department, their 
officers and guards.
* * * * * * * * * *
17 Cross-Examination

By Mr. Sharlitt:
* * * * * * * * * *
23 Mr. Sharlitt Resumes Examination of the Witness

Q. Mr. Collins, at the time you came up to these defend­
ants in the restaurant, and instructed them to leave,

24 what did they do at that point? A. They immedi­
ately turned their backs on me and requested service.

Q. Did they each request service? A. I can’t say they 
did, but they were talking and requested service from the 
attendant there.

Q. It is your testimony that one of them, at least, re­
quested service? A. As I observed them; yes.

Q. Then what happened after that? A. I tapped each 
one on the shoulder and they turned around and I placed 
them under arrest for trespassing.

Q. And I believe you testified you escorted them to the 
park office. A. To our office in the park.

Q. And their conduct at that time was peaceful, was it 
not, Lieutenant Collins? A. Yes, sir.



E40

Q. And it was peaceful in the restaurant, was it not, 
Lieutenant Collins? A. They were quiet.

Q. And it was peaceful until they left the park, was it 
not? A. They were.
* * * * * * * * * *
3 1  Abram Baker

a witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified as follows, upon

Direct Examination
By Mr. McAuliffe:

Q. Mr. Baker, may we have your name and address? A. 
Abram Baker, 3315 Wisconsin Avenue, N. W.

Q. What is your position with the corporation,
32 Rekab, Inc? A. President.

Q. What is the relationship of Rekab, Inc., and 
Kebar, Inc., to the Glen Echo Amusement Park, here in 
Montgomery County, Maryland? A. Rekab, Inc., is the 
holding company and Kebar, Inc. is the operating company.

Q. You mean the land is titled in the name of Rekab, 
Inc., as owner? A. Yes, sir. 
* * * * * * * * * *
33 Q. Now, Mr. Baker, are the corporations, Rekab, 

Inc. and Kebar, Inc., presently going corporations,
airthorized to do business in this State? A. Yes, they are.

Q. Who are the other officers of the corporation? A. 
Sam Baker and Louise Baker.

Q. And are those officers the same for each corporation!
A. Yes, they are.
* * * * * * * * * *  
36 Q. As President of Rekab, Inc., and Kebar, Inc., 

Mr. Baker, do you know who owns the restaurant 
on the Glen Echo Amusement Park?

By Mr. Sharlitt: I t is the same question.



E41

By Judge Pugh: Objection over-ruled.
A. Rekab, Inc.
Q. And as President of Rekab, Inc., and Kebar, Inc., 

do you know, on July 2, 1960, to whom the restaurant on 
the Glen Echo Amusement Park property in Montgomery 

County, Maryland, was leased to? A. B. & B. Cater-
37 ing Company.

Q. Do you know who operated the park, and to 
whom the lease was in effect; what corporation? A. Kebar, 
Inc.
* * # # # # * * # #

By Mr. McAuliffe: Cross-examine him. 
Cross-Examination 

By Mr. Sharlitt:
Q. Mr. Baker, I believe it was your testimony that

38 as of July 2,1960 that Kebar, Inc., was not operating 
this restaurant; is that correct? A. Kebar, Inc.,

leased it out.
Q. Now, just answer my question, please, sir; were they 

operating the restaurant? A. No.
Q. Now on July 2nd, were there any employees of Kebar, 

Inc. present on the premises of that restaurant? A. I don’t 
know; I wasn’t there.

Q. Well, how long is that lease for, between you and 
the B. & B.? A. Two years.

Q. And that gives B. & B. the right to occupy the prem­
ises alone? A. At my discretion.

Q. Had your discretion been exercised to permit them 
to occupy and run the premises on July 2nd of this year? 
A. Yes, sir.

Q. So that B. & B. and its servants, and not Kebar and 
its servants were in occupancy of the restaurant on that 
day; is that correct? A. I can’t tell you. I wasn’t there. 

Q. Is there any doubt in your mind that B. & B. were



E42

operating that restaurant under its lease? A. They were 
operating it; yes, sir.

39 Q. So that Kebar, Inc., wasn’t? A. That is right.
Q. So the patrons of that restaurant were pa­

trons of B. & B. and not patrons of Kebar, Inc., isn’t that 
so? A. I don’t know. If the lease says so.

Q. Is there any doubt in your mind about that? A. I 
didn’t read the lease lately.

Q. The money that comes over the counter at that res­
taurant, does that go to B. & B.? Who gets the income 
from the restaurant? A. We rent it out.

Q. They pay you rental? A. Yes.
Q. And don’t they get the income from the customers 

and then pay you rental from that income? A. Yes.
Q. Who employs the waitresses there? A. B. & B. Cater­

ing Company.
Q. Who employs the cooks? A. B. & B. Catering Com­

pany.
Q. Who employs the bus boys and clean up people? A. 

B. & B.
Q. Are there any other employees on the premises

40 of the restaurant, or were there on July 2nd? A. 
I don’t know.

Q. Well you are an officer of Kebar, Inc., aren’t you, 
sir? A. That is right.

Q. And Kebar leased these premises to B. & B. did they 
not? A. Yes.

Q. And they are on the premises of the park. You have 
just testified to that, haven’t you? A. That is right.

Q. You have seen this restaurant in operation, haven’t 
you? A. Yes.

Q. You are familiar with the operation of the restaurant, 
as well as the operation of the park, aren’t you? A. Yes; 
they have a Manager and I have nothing to do with it.

Q. And Kebar, Inc., has nothing to do with it; isn’t 
that so? A. I  collect the rent.

Q. I am talking about the operation. You said you didn’t



E43

have anything to do with it, and my question is, isn’t it 
true that Kebar, Inc., doesn’t have anything to do with the 

operation of the restaurant! A. In the lease it says
41 that anything wrong, in any way, that I, in my dis­

cretion, can tell them what to do.
Q. Prior to this incident—and is this something that you 

personally have the right to do? A. No. The company in 
operation.

Q. And prior to July 2nd, had you talked to any of the 
officials of B. & B. regarding an interference by you with 
their operation of that restaurant? A. Prior to that?

Q. That is right. A. Well, they understood it from the 
beginning.

Q. On July 2nd, sir, at any time during that day, did 
you have any conversation with any official of B. & B.?
A. I was out of town, sir.

Q. Now under ordinary circumstances— the operation of
B. & B., they are in full control of those premises, are 
they not, sir? A. If I say so.

Q. And your testimony was that you would have to talk 
to the officials of B. & B. if this would not be the case; 
otherwise it is the case, isn’t that true? A. I don’t under­
stand you.

Q. The ordinary situation, in the operation by B. & B. 
of that restaurant, is in their control unless you tell them 

otherwise; isn’t that so? A. That is right.
42 Q. Do you know of any reason at all why that 

would not have been the case on July 2nd? A. I
wasn’t there. I don’t know.

Q. So you don’t know of any reason at all why this 
would not have been the case on July 2nd? A. I cannot 
answer it.

Q. My question is if you know of any reason why the 
operation of that restaurant by B. & B. to the exclusion of



E44

Kebar, Inc., would not have been so on July 2nd. Do you 
know of any reason ? A. No.
* * * * * * * * * *
43 By Judge Pugh: Did you instruct them with re­

spect to any incidents that might be caused by those
in the picket line coming over on the park property? A. 
Yes, sir.

Q. All right, tell us about that. A. Like I said before; 
on June 30th when we found out from the newspapers that 
they were coming out for the first time, I got Mr. Woronoff 
and Lieutenant Collins together and we talked it over, 
and the idea was that if they came over the picket line, that 
within a reasonable time they would be arrested for tres­

passing.
44 Q. And you so instructed Lieutenant Collins to 

that effect? A. Yes and Mr. Woronoff, if I was not
there.
* * * * * * * * * *
47 Q. Now this instruction you gave Mr. Woronoff. 

This was consistent with all your policies in running
that park, wasn’t it, Mr. Baker? A. Consistent with 
running the park?

Q. Yes, sir. A. Well he did whatever I  told him to do.
Q. This was to implement your policy of racial segre­

gation at that park, was it not?
By Mr. McAuliffe: Objection. There is no indication

of that in the testimony.
By Judge Pugh: Objection over-ruled.
A. What was the question? (The last question was 

read back by the reporter). It was. 
# # * # # # * * * *
48 Re-Direct Examination

By Mr. McAuliffe:
Q. Mr. Baker, does Lieutenant Collins receive his instruc­

tions from Rekab, Inc., and Kebar, Inc.? A. Yes, sir.



E45

Q. And B. & B. Catering Company is just a conces­
sionaire there at Glen Echo, is it not? A. That is right.

Q. You have a lot of concessionaires; don’t you? A. I 
have two.

Q. In your relationship with B. & B. do you reserve the 
right to enforce and maintain whatever policy Glen Echo 

has as a whole?
49 By Mr. Sharlitt: I object, your Honor. The lease 

will have to speak for itself.
Examination by the Court

By Judge Pugh:
Q. How large is the restaurant? As large as this Court 

room, or larger? A. Just about this size, besides an up­
stairs.

Q. Well you didn’t tell that company how to operate its 
business, do you? A. If they do not serve the right food 
to the customers, I have a right to tell them to improve it.

Q. Don’t they lease the building? A. They lease it from 
Kebar.

Q. Don’t they have a right to operate the restaurant as 
they see fit? A. Yes they do, but it is just the idea—about 
the food part of it, if I have complaints in my office which 
I have to protect, then I have to go and tell them.

Q. How far is the restaurant from the entrance to the 
park? A. About 150 feet.

Q. The park owns that property doesn’t it? A. That is 
right.

Mr. McAuliffe Resumes Re-direct Examination:
Q. And with respect to the restaurant and the

50 other concession that you mentioned in Glen Echo, 
do the special police enforce law and order there?

A. They do.
Q. And is that by agreement between you and the con­

cessionaire? A. That is right.



E46

Re-Cross Examination 
By Mr. Sharlitt:

# # * * # # * * * *

51 Q. Do you or anybody else from Kebar, Inc. come 
in and supervise anything that goes on inside that

restaurant, as a matter of routine? A. No.
By Mr. Sharlitt: I have no further questions.

Re-Re-Direct Examination
By Mr. McAuliffe:

Q. Mr. Baker, to whom does the concessionaire, B. & B. 
look to eject a disorderly person, or any person not desired 
in the restaurant?

By Mr. Sharlitt: Objection.
By Judge Pugh: You ought to have the lease. The

written agreement speaks for itself.
By Mr. McAuliffe: There is no question in our minds. 

The defense has raised the question.
Judge Pugh: The restaurant had a lease on the prop­

erty, and if they did not make a complaint, it would be a 
pretty good question whether they would be guilty of 

trespass. Do you have a written lease? A. Yes, sir.
52 Q. Where is it? A. It is at the office.

By Judge Pugh: You better get it out here, Mr. 
McAuliffe.
* * * * * * * * * *  

Leonard Woronoff

a witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified as follows, upon

Direct Examination
By Mr. McAuliffe:

Q. State your name and address. A. Leonard Woronoff, 
1678 21st Street North, Arlington, Virginia.



E47

53 Q. What is your position if any, -with the Glen 
Echo Amusement Park, and specifically with Rekab, 

Inc., and Kebar, Inc.? A. I am the General Manager.
Q. Directing your attention to the date of July 2nd, 

1960, were you the General Manager at that time? A. Yes, 
sir.
f t * * * # * # * * #
55 Cross-Examination

By Mr. Sharlitt:
Q. Mr. Woronoff, you have heard the testimony of Mr. 

Baker, that the instructions were that picketers, as well as 
negroes, were to be excluded. Were those instructions 
repeated by you to Lieutenant Collins on July 2nd? A. I 
think so.

Q. Do you know what crime you instructed Lieutenant 
Collins to arrest these people for, if they refused to leave? 
A. In my discussion with Lieutenant Collins, I would 
simply tell him that these people were not wanted in the 
park and if, after giving them due notice, they refused to 
leave, our only recourse was to arrest them for trespassing.
f t * # # # # * # # #
56 By Mr. McAuliffe: Subject to offering the lease; 

that will be the State’s case.
By Mr. Sharlitt: To save time I will make my federal 

motions and save my others until we read the lease.
By Judge Pugh: You are in a State Court. The Judge 

sitting without a jury is the judge of the law and the fact. 
By Mr. Sharlitt: We feel, your Honor, that the

57 action here, of these five arrests on July 2, 1960, 
involved a violation of these defendants’ rights

under the Fourteenth Amendment of the Constitution of 
the United States, both the equal protection clause and 
the due process clause, in that the State of Maryland and 
its instrumentalities were being used to implement the 
policy of race discrimination of Glen Echo Park; and fur­



E48

ther, that the instrumentalities of the State of Maryland 
were being used to deny these defendants” federal statu­
tory rights, under Secs. 1981, 1982 and 1983 of Title 43 
of the United States Code, and we support this by refer­
ence to the cases of Marks v. Alabama and Shelley v. 
Cramer, 334 U. S. 1. I simply make our motion to direct 
the verdict on this constitutional ground at this time.

By Judge Pugh: The motion is denied.
By Mr. Sharlitt: Your Honor, Defendants’ case will

attempt to show that Section 577 of Article 27 of the Code 
was not violated, in that notice was not given prior to 
entry upon the land; and, further, that in this case it is 
quite clear that these defendants were on this ground in an 
attempt to exercise what they felt to be a right to use the 
facilities of this park, and that their trespass, assuming 

it was a trespass, should be considered in that light. 
58 In this case we have two white defendants, which 

we did not have yesterday. Further the statute re­
quires—this is a trespass statute, and the right to prose­
cute can be maintained solely by the lessor of the land; 
not by the owner. If sole possession has been passed to 
B. & B. Catering Company, as we feel is the case, then 
it is our contention that these complaining witnesses have 
no grounds for bringing a criminal action.

Ronyl J. Siewart

a witness of lawful age, called for examination by counsel 
for the defendants, and having first been duly sworn, ac­
cording to law, was examined and testified as follows, upon

Direct Examination
By Mr. Sharlitt:

Q. State your name and address. A. Ronyl J. Stewart; 
1734 Upshur Street, N. W.

Q. Are you employed, or are you a student? A. A 
student.



E49

Q. Where? A. At Goddard College, in Plainfield, 
Vermont.

Q. On the night of July 2, 1960, Miss Stewart, were 
you in the vicinity of Glen Echo Park, in Montgomery 
County? A. I was.

Q. Were you in the restaurant in Glen Echo Park
59 at that time? A. I was.

Q. At that time were you approached by Lieu­
tenant Collins, whom you have seen testify here? A. No.

Q. You were not approached by him in the restaurant? 
A. I was approached by him as a member of a group; not 
personally.

Q. Where were you standing, at the time he approached 
this group? A. I was standing at the counter of the restau­
rant, facing him.

Q. Did Lieutenant Collins then say something to the 
group ? A. He did.

Q. And did he say it in the earshot of all members of 
the group? A. He did.

Q. What did Lieutenant Collins say? A. I cannot quote 
him exactly.

Q. Give your best recollection. A. The best recollection I 
have is that he said “ You know that this park is segre­
gated and that you are not welcome here”  and I can’t 
remember anything else. Oh yes, and “ You will be given 
a reasonable length of time to leave the park.”

Q. Then what happened? A. The group turned
60 away from him.

Q. Did you, or any other members of the group, 
in your presence, request service from the restaurant? A. 
Yes, we did.

Q. Did you? A. Yes.
Q. What did you ask for? A. 1 asked for a coke.
Q. What happened? A. There was no answer given.
Q. Miss Stewart, had you been on the premises of that 

restaurant before that time? A. I do not understand your 
question.



E50

Q. Had you been in that restaurant at an earlier date? 
A. No.

Q. What happened after Lieutenant Collins made this 
statement to you regarding the park being segregated and 
that you weren’t welcome? A. The group as a whole 
turned away from him and again attempted to order.

Q. And again what happened? A. Lieutenant Collins 
went down the line and tapped each member of the group 
on the shoulder and turned him around and he again said 
to each member of the group “ You are under arrest for 

trespass.” A question was asked by one of the
61 members of the group—I am not sure which one, I 

think Martin Schain—‘ ‘ On what grounds are we be­
ing arrested?” and Lieutenant Collins replied “ For tres­
passing” and then Lieutenant Collins went down and 
pointed to the three negro members of the group and said 
“ You are colored; “ you are colored” and “ you are col­
ored” and he pointed to the two white members of the group 
and he said “ You are undesirable”  and “ you are undesir­
able. ’ ’

Q. And all your conversation with Lieutenant Collins 
took place in that restaurant; is that correct? A. Yes.

Q. Then what happened, Miss Stewart? A. A conversa­
tion was entered upon between Helene and Lieutenant 
Collins and I don’t know just the gist of this conversation. 
After the conversation we were taken out of the restaurant 
and put in police cars and taken to the Montgomery County 
police station.

Q. From the time that Lieutenant Collins approached 
you to the time you left the park, was there any disorder 
what-so-ever? A. No.

Q. Were you able to observe the conduct of the other 
four defendants? A. I was.

Q. From the time Lieutenant Collins first ap-
62 proached you to the time you left the park? A. Yes.

Q. And was their conduct peaceful in all respects? 
A. It was.
# * * * # # # # * *



E51

81 M artin  A. Schain

a witness of lawful age, called for examination by counsel 
for the defendants, and having first been duly sworn, 
according to law, was examined and testified as follows, 
upon

Direct Examination 
By Mr. Sharlitt:

Q. Mr. Schain, state your name and address. A. Martin 
Schain, 2131 0. Street, N. W.

Q. Are you employed, or are you a student? A. I  am 
a student.

Q. Whereabouts? A. I go to New York University.
Q. On the night of July 2nd, 1960, were you present on 

the premises of Glen Echo Park? A. Yes, I was.
Q. Were you present on the premises of the restaurant 

at Glen Echo Park? A. Yes, I was.
Q. What was the purpose of your being present

82 at the restaurant in Glen Echo Park? A. On 
July 2nd?

Q. Yes. A. I wanted to get served, and I didn’t see 
any reason why they wouldn’t serve me.

Q. Were you served? A. No.
Q. Now, had you been present at the restaurant in 

Glen Echo Park prior to July 2nd, 1960? A. Yes, I  had.
Q. When was that? A. That was the night before; 

Friday night.
Q. Were you approached by Lieutenant Collins on the 

night earlier and asked to leave? A. No. 
* * * * * * * * * *  
84 Cross-Examination

By Mr. McAuliffe:
* * * * * * * * * *

91 Q. Did they serve anybody when they came in? 
A. The counter closed; no.



E52

Q. And did it close down almost simultaneously with the 
appearance of negroes? A. It closed down a few minutes 
afterwards.
* # # # # * * * * *
106 A bram  B aker

a witness of lawful age, recalled by counsel for the plaintiff, 
and having already been sworn, testified as follows, upon

Direct Examination
By Mr. McAuliffe:

Q. Mr. Baker, I show you this agreement and ask you 
if you can identify it? A. Yes, sir.

Q. And what is that agreement? A. That is an agree­
ment between B. & B. Catering Company and Kebar, Inc.

Q. And Mr. Baker, when was this agreement in effect? 
A. That agreement was in effect from the opening of the 
season of 1956 to the opening of the season for 1958.

Q. What did you do in 1958, Mr. Baker? A. I  made a 
renewal agreement.

107 Q. I show you this and ask you if that is the 
renewal agreement?

By Mr. Sharlitt: I  object to that characterization “ re­
newal agreement” until I have a chance to look at that 
second document. (Mr. McAuliffe hands the document to 
Mr. Sharlitt, who examines it) Your Honor, I move to 
strike that answer, because this cannot purport to be a 
renewal agreement, since it doesn’t refer to any lease at 
all. It purports to be an agreement of itself.

By Judge Pugh: Let me see it. (Document is handed 
to the Court by Mr. McAuliffe). Mr. Baker, what are 
they referring to in this paper, this letter dated August 
29, 1958, when it states here “ if terms and conditions 
meet with your approval?” Is that referring to this 
matter? A. It is referring to the lease to B. & B. Catering 
Company.



E53

Q. Another lease other than the one Mr. McAuliffe had in 
his hand! A. No, sir.

Q. The same lease! In other words, this letter and the 
paper Mr. McAuliffe has in his hands, constitutes the trans­
action that was in force on July 2nd, 1960! A. That is 

right, sir.
108 By Mr. McAuliffe: We offer this letter in evi­

dence and ask that it be marked State’s Exhibit #8.
By Mr. Sharlitt: That document is completely un­

ambiguous and I don’t see how you can use it.
By Mr. McAuliffe: This recites the agreement and that 

recites the fact that this agreement is still in effect, or is 
a part of it, and Mr. Baker has testified that these two 
instruments together constituted the agreement. The Court 
asked Mr. Baker to produce the lease and he has done the 
best he could. He has produced these two papers.

By Judge Pugh: Is that all the papers that existed
between you and the B. & B. Catering Company!

A. Yes, sir.
And these are the documents under which the restaurant 

was holding the property on July 2nd, 1960! A. Yes, sir.
By Mr. Sharlitt: I object to the inclusion of this docu­

ment.
By Judge Pugh: The objection is over-ruled. I t will be 

admitted in evidence.
* * * * * * * * * *
110 Cross-Examination 

By Mr. Sharlitt:
Q. Mr. Baker, is this the original lease! A. I don’t know.
Q. Is there a document that purports to be a lease be­

tween you and B. & B. that contains the date! To refresh 
your recollection—this does not, sir. A. It starts at the be­
ginning of the season and winds up the season; that is all 
I know.

Q. If I may, I will ask you just to be responsive. Is there 
a document in existence between you and B. & B. that con­



E54

tains a date? A. The gentleman at B. & B. may have a 
date on his. He has a date on his.

By Mr. McAuliffe: The President of B. & B. is here in 
Court and will be our next witness.

Q. Well this lease terminated on or about September 1, 
1958, did it not, sir? A. Which one?

Q. This purported document. A. Yes, sir.
111 Q. Now, Mr. Baker, would you read the first sen­

tence of this letter dated August 29, 1958? A. (wit­
ness reads) “ This will confirm the agreement made with 
you for the exclusive privilege of operating—”

Q. (interrupting the witness) What agreement was that 
referring to? A. You have the agreement back of you.

Q. But this letter incorporates new provisions, doesn’t it, 
sir? Doesn’t this have new and different provisions than 
the ones in the original lease? A. Maybe, of money value.

Q. Isn’t it true that as of August 29, 1958, you had dis­
cussions with representatives of the B. & B. about the fu­
ture arrangements between the two corporations. A. bio, 
s ir ; not before that letter.

Q. How were the terms in this letter arrived at? A. Well 
if you read it all, it says if he agrees he shall sign it, or 
otherwise talk to me about it.

Q. Well in effect then, what you were doing was setting 
new terms; were you not? A. With money, yes.

Q. Well, had you had any conversation with Mr. Bergfeld 
prior to the time you sent this letter to him? A. Not about 
the lease.

Q. So that you were setting new terms in this let-
112 ter? A. I  really don’t know. I  would have to look 

them over. That is September of 1958, you know.
Q. In fact, it is August 29, 1958. I t is your testimony is 

it not, sir, that there was no conversation between you and 
Mr. Bergfeld to the effect that you were merely continuing 
the other lease, because you hadn’t talked to him up until 
August 29, 1958; isn’t that so? A. We became good friends, 
so I didn’t think I had to talk to him.



E55

Q. Yes, but you wrote him about money. A. Well, that 
was up to him.

Q. That is a new term in this contract; isn’t it? A. I 
could shake hands on a thing like that, if it wasn’t on ac­
count of death, or your children.

Q. You couldn’t shake hands on the amount of money, 
could you?

By Mr. McAuliffe: Objection; it is argumentative.
Q. The point is, Mr. Baker, that there was no conversa­

tion between the two of you as to the continuation of this 
lease, when you sent this letter to Mr. Bergfeld; isn’t that 
a fact, sir? A. I didn’t think I would have to confer with 
him.

Q. So there was no understanding between you and Mr. 
Bergfeld that the lease was to be continued? A. I think 

there was.
113 Q. You said you didn’t talk to him. A. I didn’t 

have to. I said we were good friends.
Q. But you weren’t good enough friends for the change; 

is that correct? A. If it were not on account of deaths in 
the family and Kebar, Inc., and Rekab, Inc. 
* # # # # # # # # #

Q. Well, did you have any conversation with Mr. Berg­
feld prior to the time that you got this signed copy back; 
that is to say, between the time you sent him this letter, 
asking for his signature, and the time it came back? A. 
He sent that in after I was gone from the Amusement P ark ; 
signed.

Q. Did you have any discussion with him after the time 
this was received, about any of the practices of the

114 park, which were not included in this? A. I  had no 
discussions at all with him about anything in the

park.
Q. You thought you could rely on this? A. That; plus 

friendship.
Q. So that “ plus friendship” is not this plus any other 

written document. A. Plus the lease that went before it.



E56

Q. Isn’t it true that you just felt that you had a general 
understanding with him as to all the practices involved 
there? That you were just dealing between friends on any­
thing except the specific terms contained in this letter? A. 
If we weren’t friends, I would have had to make out another 
one just like that.

Q. So it was just a matter of friendship as to anything 
that was not included in this letter? A. Yes. We had the 
other document to go along with it.

Q. You have testified that you didn’t even discuss the 
other document. A. Yes I did.

Q. You did, or you did not discuss it? A. I did not dis­
cuss it.

Q. So as of the time you entered into this thing, you had 
no detailed understanding with Mr. Bergfeld as to anything 

not included in here? A. Plus the other contract.
115 Q. I thought you said you just went on the basis 

of friendship with Mr. Bergfeld, in August of 1958?
A. That is right.

Q. Well did you discuss with him, prior to August 29, 
1958, whether he was a lessee or a licensee? A. I didn’t 
think I had to.

Q. Did you, or didn’t you? A. No I did not.
Q. Did you discuss who would have control of the patron­

age of his restaurant? A. No, I did not.
Q. All those things were just left unsaid? A. That is 

right, sir.
Q. The only thing that was said between you was this 

letter? A. That is right, sir.
Q. And you felt that no agreement was necessary on 

these other things? A. That is right, sir. 
* * * * * * * * * *
116 Mr. Sharlitt continues:

Q. Why didn’t you renew the lease, on the lease? A. I 
can explain that to you.

Q. I don’t think you have. A. I said if it wasn’t for 
Kebar, Inc., and Rekab, Inc. and my children, I wouldn’t



E57

even have to have a lease. I would just have a handshake 
with the proposition. That is the way I felt about it.

Q. Well, lets take a look at the period after August 29, 
1958; were there any changes in the practices and the poli­
cies of the restaurant, commencing at the time the agree­
ment was made August 29, 1958? A. No, sir.

Q. And prior to that time, the restaurant had been oper­
ated by Mr. Bergfeld, fully under his control; isn’t that 
true? A. I don’t know.

Q. Well you testified this morning that they hired all the 
employees there. A. That is right.

Q. And that went on after this August 29, 1958,
117 agreement; did it not ? A. That is right.

Q. Did you ever have any occasion to go in there 
and tell him to run his restaurant any differently than the 
way he was running it? A. I didn’t have to tell him in the 
restaurant. He would come in the office and I would ex­
plain to him if there was anything wrong, or wasn’t wrong.

Q. From the time they rented the restaurant, they had 
full charge of it; isn’t that so? A. That’s what you say.

Q. I want to know what you say. A. If I saw anything 
wrong, in any way, I would explain it to him and try to 
change it.

Q. Who brought the fixtures in there ? A. B. & B.
Q. They are attached to the property; aren’t they? A. 

I really don’t know.
Q. Do you know if at any time whatsoever there was ever 

an occasion when any agents or representatives or employ­
ees of Ivebar, Inc,, ever interfered with the patronage at 
that restaurant prior to July, 1960? A. The exact date I 
wouldn’t know, but there must have been times.

Q. What do you mean? A. We have complaints
118 downstairs, lots of times, and we have to get hold of 

somebody and straighten them out.
Q. I am just talking about complaints in the restaurant. 

When these complaints came up, you took them up with Mr. 
Bergfeld, didn’t you? A. Yes, sir.



E58

Q. You didn’t go in and correct them yourself? A. No, 
sir.

Q. Was there ever a time that you went in and told them, 
or, in fact, did pick and choose their customers? A. No, 
I did not.

Q. That was their decision, was it not? A. They knew 
who they wanted in and wTho they didn’t. 
* * * * * * * * * *
119 By Judge Pugh: If the lease has a provision say­

ing that B. & B. has control over who shall go into
the property and who shall not, read it to him.

By Mr. Sharlitt: We feel this portion is relevant: “ Wit­
nessed, that the said Park Company, for and in considera­
tion (and so forth) and the performance by the said Con­

cessionaire of all the covenants and agreements liere-
120 in expressed, the prompt performance of all the cove­

nants herein contained being a condition precedent,
the Park company hereby extends to the Concessionaire, 
the exclusive privilege of maintaining and conducting at 
Glen Echo Park, situate in the County of Montgomery, 
State of Maryland, all concessions for the purpose of sell­
ing food and beverages.” We think that is exclusive, not 
only as to all other concessionaires but exclusive as to their 
own facility.

By Judge Pugh: We have been waiting here to get the 
original lease and have it in evidence, and now you are 
going into the parole evidence rule. You can argue the 
lease, but having this witness interpret the terms of a lease 
that is in writing, I can’t see how you can expect him to do 
that. He says the two papers together constitute the agree­
ment under which the B. & B. opened the restaurant in July, 
1960.

By Mr. Sharlitt: Nothing further. 
* * * * * * * * * *



E59

121 W illiam  B irg fe ld

a witness of lawful age, called for examination by counsel 
for the plaintiff, and having first been duly sworn, accord­
ing to law, was examined and testified as follows, upon

Direct Examination
By Mr. McAuliffe:

Q. Mr. Birgfeld, state your name and address. A. Wil­
liam Birgfield, 5107 Maryland Drive, Sumner, Maryland.

Q. What is your employment? A. I am an officer of 
B. & B. Catering Service.
# * * * * * # # # #

By Judge Pugh: Are you holding under the paper that 
has been introduced in evidence? Were you holding pos­

session of this restaurant on July 2, 1960, under
122 these two papers? Have you seen the papers? A. 

I am fairly familiar with all the facts involved in
this. This was apparently a previous lease wherein certain 
addendums were made by a letter I received.

By Judge Pugh:
Q. Do those two papers constitute your legal right to oc­

cupy the restaurant? A. Number one, this is the longer 
lease, which has the technical terms in it, and we are au­
thorized to operate under certain circumstances, and there 
were addendums made at a later date.

By Judge Pugh:
Q. Were the additions made in that letter? A. Yes, sir. 

This was a slight change in the rental and combined the 
advertising and promotion and rental, putting them all into 
one category, and Kebar, Inc., thought we should not hire 
anyone under the age of eighteen.

Q. I show you State’s Exhibits 8A and 8B and ask you, 
are they the papers under which you conduct and operate 
the restaurant in Glen Echo Amusement Park, and did on 
July 2nd, 1960? A. Yes, sir.



E60

Q. Are there any other papers that have anything to do 
with your occupancy of those premises? A. No, sir; 

123 no other papers.
Mr. McAuliffe Resumes Direct Examination:

Q. And does your agreement as of July 2, 1960, between 
B. & B. and Kebar, consist of both of those documents, 
State’s Exhibits 8A and 8B? A. Yes, sir; this is the agree­
ment and this is the addition to and in change thereof.

Q. What is your position with the B. & B. Catering Cor­
poration? A. I am President, sir. 
* # * # # * * « » *  
133 By Mr. Sharlitt: Your Honor, I renew my motion 

for a directed verdict on constitutional grounds at 
this point for insufficiency of evidence.

By Judge Pugh: The motion for a directed verdict is 
denied.
* * * # # # # # * *  

139 Ju d ge P ugh 's Oral O pin ion  (G reene, e i  al.)

As I stated yesterday, in a somewhat similar case, it 
is most unfortunate that these parties have used the 
method that they are attempting to use, in order to estab­
lish what they believe to be their constitutional rights, or 
whatever rights they may call them. To come out into 
this County, in large groups of thirty-five and forty people, 
and try to force a change of policy on the part of a private 
business is really unthinkable. That is the nearest thing 
to taking the law in your own hands that I can think of. 
If you want to litigate what you believe to be your rights, 
then litigate them civilly and in an atmosphere where 
the legal principles and the constitutional principles may 
be passed upon, without the fear or without the possibility, 
of stamping the individuals guilty of some misdemeanor.

It is a fundamental principle of this country, as I  under­
stand the Constitution, that a man in business has a right 
to do business with anybody that he sees fit, whether they



E61

be black, white, yellow, or whatever color he might be, 
and for any reason that he may deem sufficient in his 
opinion. If that were not the law, then the man would not 
stay in business long. His idea of how he should transact 
business must be the controlling influence. If a man in 

business cannot run it the way he sees fit, he would
140 soon be out of business. If he is required to con­

duct his business on the ideas and fancies of groups
of people, it will no longer be his business. It may be 
that if he would listen to these groups of people, he might 
get more business, but that is not the question. He is 
responsible for his own livelihood and he has to make a 
living out of the business, and if he decides to exclude 
certain people, for any reason he sees fit, and he goes 
bankrupt, that is his hard luck. If the business firms of 
this County cannot stay in business in the way they desire 
to transact it with the public, they might as well close 
up all private business and let the government take it over 
and run it, under the rules of segregation as decided in 
the school cases. So I say, in private business a man 
has a right to transact business the way he sees fit, whether 
it be arbitrary, capricious, unreasonable, or whatnot. The 
test as to whether or not he remains in business is whether 
or not the public wants to do business with him. If the 
public doesn’t want to do business with him, because he 
advocates certain racial policies, he will soon be out of 
business and then he is through. He will then no longer 
be making a livelihood out of his business. He will then 
have to do something else, or be put on public relief.

There is not a great deal of difference between this case 
and the case tried yesterday. This morning when we heard 

the testimony about the restaurant, I was a little in
141 doubt as to whether or not the lessees of the restau­

rant did desire or would refuse to serve these de­
fendants, had they had the authority or the opportunity 
to do so. While that question has been satisfactorily 
removed from this case by proof of the lease, there is no 
evidence that this Catering Company refused, or actually



E62

told them the get off of their restaurant property. There 
is evidence in this case that these defendants deliberately 
went on the property of the Glen Echo Park Amusement 
Company; that they ran across its property for the pur­
pose of going to this restaurant, and they did it after 
getting away from the policeman who was there watching 
the picketing outside of the grounds of the amusement 
park.

When you are running, and a policeman is behind you, 
it is a clear indication that you are doing wrong. If you 
are not doing wrong, then you have no business to run 
when you know there is a uniformed policeman behind 
you. It is plain from the evidence in this case that these 
defendants went out there for one purpose—for the pur­
pose of trying to force on the management of Glen Echo 
Park Amusement Company their asserted right to impress 
on the Amusement Company that it was wrong in maintain­
ing its policy of segregation. That is not within their 
authority. They did not have that right, in the opinion 
of this Court. Under the law of this State, as it stands 
today, if anyone decides he desires not to serve negroes, 

because they are negroes, they have a right to refuse 
142 to do so. Whether that is right or wrong will prob­

ably have to be determined by the Court of Appeals, 
but as of this time no decision has been cited; no authority 
has been cited in this State, where a man who operates 
a private business does not have the complete and absolute 
control of it.

Now getting into the question of whether or not you 
can use the facilities of the State to enforce a policy of 
that kind. I might say that we are now trying these de­
fendants under the laAV of trespass. By way of compar- 
sion, in answering the arguments of Mr. Sharlitt, wouldn’t 
it be a nice state of affairs if you owned a piece of prop­
erty out here in Rockville and somebody came on your 
property and just sat there, and you went out and saw 
him sitting there, and assuming, for the sake of argument, 
it is two or three o’clock in the morning, and you go out



E63

there and tell him to get off your property, and he refuses 
to get off, and then you still insist that he get off and you 
give him five minutes to leave and you tell him if he doesn’t 
get off that you are going to have him arrested for tres­
passing—wouldn’t it be a ridiculous state of affairs if 
the owner of this land could not secure a trespass warrant 
and have the use of the facilities of the police department 
to have that man arrested for remaining on your property? 
If that were the law, very clearly the people who own 
property would take the law in their own hands. In the 

rural sections of this County I can see some of the 
143 farmers going into the house and getting a shotgun 

and using it, and in my judgment, if the law did not 
protect him in his right to be secure in the ownership of 
his property and enjoy it, he would have a right to do so. 
I am not condoning shooting people for trespassing, but 
I am saying if the police department did not help the 
citizens of this County in the protection of their property, 
we would be in a sad state of affairs.

This situation in the Glen Echo Amusement Park is 
not exactly similar to that, but we are dealing with the 
law of trespass, and whether or not it is a wanton tres­
pass. It is wanton when you are told to get off and you 
don’t get off. How many times you have to tell them 
that, I am not in a position to say, but in my own judg­
ment when a man comes on your property and you tell 
him to get off, and he doesn’t get off and remains there, 
it is time for the owner of the property to kick him off, 
or for the police department to come in and arrest that 
man for trespassing. This is the law today, and we are 
trying these defendants under that law. That is the law 
of trespass of this State, and if it were not we would be in 
a state of chaos with reference to the ownership and oc­
cupancy of our homes.

Wouldn’t it be a sad state of affairs if a man knocked 
at my door and I let him in, and after he entered the house 
he became boisterous and loud, and he tried to tell



E64

144 me this and that and I say, “ Get out of my house; 
you are ordered off my property” and then he re­

fused to get off the property and I call the police and 
then the defense is that I  didn’t tell him not to come on 
the property; I invited him into my house and, therefore, 
it is not a wanton trespass?

In this case it is a wanton trespass when a group of 
people stand out in front of a man’s place of business and 
attempt to harass him or keep people away, and prevent 
them from doing business with him. The law seems to 
condone the fact that they can parade up and down out­
side, or pocket him. I do not condone that practice, but 
the law says they have that right—that picketing is proper. 
Still, I do not agree with that practice, but I have to abide 
by the Court’s decisions. When a man owns a business 
and there are a lot of people out there picketing, and try­
ing to keep possible customers from doing business with 
him, it is an interference with his right to do business.

Now that is what these defendants were doing in this 
case, and the evidence shows conclusively that they came 
out there to picket and harass the Amusement Park owners. 
The law says it is all right to picket, but why did they 
break the line and go on the private property of the com­
pany? They knew they didn’t have any right on the prop­
erty. They knew it by virtue of the fact that the papers 

were full of it, and two or three days before that it
145 had been all over the newspapers that there was a 

segregation policy in effect in Glen Echo Amusement
Park.

We are not trying the segregation question here. We 
are not trying the right of these defendants to test the 
policy of a private corporation to establish a segregation 
policy. In other words, the law of this State is, at this 
time, that he can select his own patrons and I dare say 
if that decision is changed, it will be a new revolution 
in the laws of this State and this Country.

So I say to you people that I have been very liberal 
with you, and very patient with you, and yesterday’s



E65

case was only the first of a series of eases that are to be 
tried in this Court. We are only bound by the law as 
established today. The Court finds each of you guilty 
of trespass and sentences each of you to pay a fine of One 
Hundred Dollars, and costs. Yesterday I gave the defend­
ants a lesser fine than the maximum allowed by the law. 
Frankly, I think your case is more aggravated. You were 
parading up and down outside of this park; you college 
students, one from New York, and the other college students 
from here in Washington, trying to force your ideas upon 
a private business in this manner. I cannot understand 
how you can get into the frame of mind to think that 
you can force your ideas upon them as to the way it should 
run its business. I dare say if you were in business, you 

would run it the way you wanted to, or you would 
146 close the door. So I say in this case it is really a 

wonder that you haven’t been charged with attempt­
ing to incite a riot. If there had been any disorder, or any 
bloodshed out there, because of your actions, and you 
came in here and were convicted of rioting, you would 
go to jail as quick as lighting, and I say you had better 
not cause any rioting; you better stay within your bounds 
and listen to your lawyers. You should go ahead and 
litigate your cases, the same way the school case was 
litigated—civilly, and in the proper courts, and advance 
your ideas there. If the Court agrees with you, that is 
one thing, and if the Court doesn’t agree with you, you 
must accept it, just like the people in this County have 
accepted school integration and the business men of this 
County would accept any change, once their doors are open 
to everyone.

Under the evidence in this case, the State has estab­
lished beyond a reasonable doubt that the defendants are 
guilty of wanton trespass, and the Court so finds you all 
guilty as charged.



E66

State's Exhibit No. 8A

THIS AGREEMENT
Made and concluded this day of A.D., 1956, 

by and between Kebar, I nc., a corporation organized and 
existing under the laws of the State of Maryland, herein­
after designated as the Park Company, as party of the 
first part, and B & B Industrial Catering Service, Inc., 
a corporation organized and existing under the laws of the 
State of Maryland, hereinafter designated as the Conces­
sionaire, as party of the second part:

W it n e s s e t h , That the said Park Company, for and in 
consideration of the sum of One Dollar, in hand paid, 
receipt of which before the execution hereof is hereby 
acknowledged, and the performance by the said Conces­
sionaire of all the covenants and agreements herein ex­
pressed, the prompt performance of all the covenants 
herein contained being a condition precedent, the Park 
Company hereby extends to the Concessionaire, the exclu­
sive privilege of maintaining and conducting at Glen Echo 
Park, situate in the County of Montgomery, State of 
Maryland, all concessions for the purpose of selling food 
and beverages.

All fixtures, appliances, supplies, and services required 
to operate the foregoing concessions are to be furnished 
by the Concessionaire, and all prices of goods or other 
matter sold are to be subject to the approval and agree­
ment of the Park Company, and none other, for the term 
of two summer seasons, said term to begin on or about the 
1st day of April, 1957, and to terminate on or about 
Labor Day, September, 1958. The concessions and licenses 
specified in this contract are to be used and exercised 
daily except when otherwise required by the Park Com­
pany; and the Concessionaire hereby agrees to maintain 
and conduct said concessions for the period named, for 
which the Concessionaire agrees to pay and provide in 
services to the Park Company:



E67

(1) The total rental for the 1957 and 1958 seasons shall 
be $85,000.00 based on $42,500.00 per season, payable 
in equal bi-annual installments on December 15, 1956, 
June 15, 1957, December 15, 1957 and June 15, 1958.

(2) Twenty-five percentum (25%) of the gross receipts 
from the operation of the Ballroom Refreshment 
Stand, payable once each week.

(3) Twenty-five hundred dollars ($2,500.00) per season 
for advertising and promotion to be paid in five (5) 
monthly installments on the 15th Day of May, June, 
July, August and on the last Wednesday of the 
seasons.

(4) One hundred twenty-five dollars ($125.00) per season 
for share of the cost of Montgomery County licens­
ing, said sum, however, to be adjusted proportion­
ately to any changes in the Montgomery County 
licensing charges.

(5) A daily full course meal for the Park Company em­
ployees to consist of appetizer, meat, two vegetables, 
desert, and coffee, the menu and price subject to 
approval of the Park Company.

(6) The Concessionaire shall handle its own money.

It Is F urther Agreed, that the space, buildings or struc­
tures used by the Concessionaire in the performance of 
this contract is not leased to the Concessionaire; that he 
is a licensee, not a lessee thereof; and his rights under this 
contract shall continue only so long as he strictly and 
promptly complies with the convenants, agreements and 
conditions herein expressed. The Concessionaire shall not 
sell, mortage, or assign or in any manner dispose of this 
contract or concessions, nor any interest herein, nor have 
the right or authority to allow any other person or party 
to have any interest in this concession, or the premises 
occupied, for any purpose, without the written consent of 
the Park Company.



E68

I t Is F urther Agreed, That the Park Company, by its 
proper officers or agents, shall have the right at all times 
to enter upon said space, buildings, or structures, for the 
purpose of preserving and carrying out all the rules and 
regulations of the Park Company, and to determine that all 
the conditions of this contract are fulfilled, and to assist 
the Park Company in this, the Concessionaire shall furnish 
to the General Manager of the Park Company, duplicates 
of all keys used by the Concessionaire and necessary to this 
end.

I t Is F urther Agreed, That this contract shall be sub­
ject to the following covenants, stipulations and conditions:

F irst—The Manager of the Park Company shall have 
the power, during the existence of this contract, to pro­
hibit any show or exhibition, or any amusement, under 
the Concessionaire, which, in his opinion, shall appear to 
be against good morals, public safety, or health. And the 
Concessionaire shall, upon the order of the Manager, im­
mediately stop, or modify, said exhibition; and upon 
failure to obey such order, said Manager may summarily 
cause the removal of said show or amusement, or any part 
thereof, and terminate this contract or concession, and 
the Concessionaire forfeits and reliquishes all claims for 
damages or loss occasioned by reason of such removal or 
closing and the termination of this contract.

Second—The Concessionaire shall not allow any form of 
gambling, the renting of roms for any immoral purposes, 
or the making, manufacture, drinking, sale, or, in any form 
or manner whatsoever, disposal of intoxicating liquors, 
excepting beer however; and upon a repition of such 
offenses in or upon Park Company premises occupied, the 
Park Company, by its proper officers or agents, shall have 
the right to seize and destroy any apparatus or device so 
used, or intended for such use, to take possession and 
close said premises occupied by the Concessionaire, with­
out notice to the Concessionaire or redress on his part, to 
cancel and terminate this contract, remove the property



E69

and effects of the Concessionaire, and the Concessionaire 
hereby waives all claims for damages or loss by reason 
of any acts of the Park Company under this section.

T h i r d—The Concessionaire and his employees shall, at 
all times, be subject to and strictly comply -with the rules 
and regulations which shall from time to time be pre­
scribed by the Park Company, its officers and agents, and 
also to the regulation of admission of any persons or 
vehicles therein. The Park Company shall have the right 
to approve all employees used by the Concessionaire, and 
upon notice that any person employed as aforesaid is 
objectionable, such person shall be dismissed at once by the 
Concessionaire. The Concessionaire agrees that he shall 
not, by himself or agent, sell or peddle anything upon the 
grounds under this contract, or within the neighborhood of 
said grounds, any commodity, article, or exercise any other 
privileges other than within the terms of this contract. 
The Concessionaire convenants and agrees not to advertise 
his operations in any manner on or about the premises 
or outside the Glen Echo Park, or in any newspaper or 
otherwise, except by means of such signs or forms as shall 
be approved by the Manager of the Park Company; and 
shall not employ any person known as a crier or spieler, 
not approved by the Manager of the Park Company.

F ourth—The Concessionaire covenants and agrees that 
it will not erect or construct and structure or make any 
alterations upon said premises except in accordance with 
plans approved in writing by the proper officers of the 
Park Company, and then only in such places designated in 
writing.

F ifth—The Concessionaire shall be solely responsible 
and answerable in damages for all accidents and injuries 
to person or property caused by any negligence on his 
part, or on the part of his agents or employees; and also 
the Concessionaire covenants and agrees to indemnify the 
Park Company, its officers and agents, from every claim 
for damages made and brought about by reason of such



E70

negligence, and to defend, at his own cost, any action or 
proceeding brought against the Park Company, its officers 
or agents, under such claim, whether the Park Company, 
its officers or agents, be sued jointly or with the Conces­
sionaire or otherwise. The Park Company shall be further 
protected by securing suitable public liability insurance, 
the premium of which is to be paid by the Concessionaire.

S ix t h —If the Concessionaire cannot do business due to 
closing of his stands or stand, due to Park Company 
failure, the Concessionaire is to be refunded a daily rent, 
computed on a pro rata basis. However, if the closing 
of the stand or stands is brought about by failure of the 
Concessionaire, no refund is to be made.

S e v e n t h —The Concessionaire hereby agrees to indem­
nify and save harmless the Park Company, its officers and 
agents, against all loss or damage, by action or otherwise, 
on account of patents or copyrights, or the infringement 
of the same in its operations.

E ig h t h —The Park Company, by its officers or agents, 
may order the removal of any substances or explosives, 
at their option, from the space, buildings or structures 
under this contract. The Concessionaire agrees to keep 
said concessions and immediate surroundings in a clean 
and sanitary condition, free from all rubbish and dirt.

N in t h —It is further agreed that, should the premises 
occupied under this contract be so damaged as to be 
unihabitable for a period of ten consecutive days, at the 
option of the Park Company, by notice in writing to the 
Concessionaire, this concession may be conceded, without 
recourse for damages as against the Park Company, its 
officers or agents.

T e n t h —The Manager of the Park Company shall decide 
every dispute which may arise between the Concessionaire 
and any other concessionaire, and any dispute between the 
Concessionaire and the Park Company, and the decision 
shall be final and binding on all parties thereto. Upon



E71

failure to obey such decision, this contract may be termi­
nated.

Eleventh—Nothing in this contract shall create a co­
partnership between the Park Company and the Conces­
sionaire, or constitute the Concessionaire an agent of the 
Park Company, to bind the Park Company, its officers 
or agents, in any way whatsoever.

Twelfth—The Concessionaire further agrees that, 
should the carrying out of the purposes of this concession, 
or any part therein, be stopped by legal proceedings, then 
the said Park Company, by its officers or agents, by written 
notice to the Concessionaire, may cancel and terminate this 
contract.

Thirteenth—The Concessionaire hereby covenants and 
agrees that the Park Company, its officers or agents, shall 
not be liable for the loss of or injury to any property, 
goods, or affects of the Concessionaire, due to any cause 
whatsoever.

Fourteenth—Except for the Montgomery County 
license, as to which the Concessionaire pays $125.00 as 
his proportionate share as hereinbefore provided, the Con­
cessionaire shall procure, at his own expense, all necessary 
licenses and official permits necessary for the purpose of 
carrying out the provisions of this contract; and they shall 
be paid and placed into the custody of the Manager of the 
Park Company.

Fifteenth—The Concessionaire shall keep a true and 
full record of the receipts from the operation of the Ball­
room Refreshment Stand, and said record shall, at any 
time, be open to the inspection of the Park Company’s 
officers or agents, and for this single operation only, dupli­
cate keys to any and all cash registers or other appliances 
used for the collection of the receipts shall be placed in 
the hands of the proper officers of the Park Company. The 
Concessionaire further agrees that the Park Company’s 
officers or agents shall have the right to audit directly



E72

from the cashiers, cash registers or appliances receiving 
money from this operation and that no adjustment of the 
readings of such registers or appliances shall be made 
without the approval of the Park Company.

S ix t e e n t h — It is further mutually understood and agreed 
by and between the parties hereto that in case of default 
in the payments stipulated to be made by the Conces­
sionaire or any portion thereof, or in the case of non­
performance of any of the provisions herein contained to 
be performed by the Concessionaire, at the election of the 
Park Company, its successors or assigns, to consider the 
agreement at an end, the said Concessionaire, his heirs, 
executors or administrators, shall forthwith remove the 
paraphernalia and other things of any and every nature, 
belonging to the Concessionaire, therewith connected and 
concerned, from the Glen Echo Park premises, at his own 
cost and expense, and in the event of the failure, default 
or neglect of the failure to fully perform the obligations 
of this paragraph assumed, then, in that event, the Park 
Company, may, at the expense of the Concessionaire, his 
heirs, executors or administrators, dismantle and remove 
the same from said premises and charge the cost thereof 
to the Concessionaire; and should the Concessionaire be 
indebted to the Park Company by reason thereof or for 
any other matter, cause, or thing whatsoever, at the termi­
nation of this contract, the Park Company shall have a 
lien upon all the paraphernalia, goods, chattels, and money 
belonging to the Concessionaire or in which he is interested, 
which shall be located in or about Glen Echo Park or in 
the possession of the Park Company; and the Park Com­
pany shall have the right to satisfy and discharge the said 
lien by making sale of the said paraphernalia, goods or 
chattels in such manner as shall be satisfactory to it, either 
at public or private sale, but shall in any and every such 
sale, whether public or private, give at least ten (10) 
days notice to the Concessionaire before making sale, unless 
for any reason it shall be found to be impracticable, in



E73

which event, either public or private sale may be made 
without notice.

Upon termination of this contract the Park Company 
agrees to purchase for a price equal to the cost less depre­
ciation at the rate of ten percentum (10%) per annum 
from the date of purchase, all the capital improvements 
and items of equipment used by the Concessionaire in the 
performance of this contract.

It is further mutually understood and agreed that each 
and every of the terms, conditions, stipulations and agree­
ments in this instrument contained, shall be applicable and 
binding upon the Concessionaire, his Heirs and personal 
representatives; and should the said Concessionaire vio­
late any one or more of the covenants, agreements or condi­
tions upon his part to be performed, or should he fail to 
observe and fully keep each and every of the said cove­
nants, agreements and stipulations, then, in that event, the 
Park Company shall have the right to forfeit and terminate 
this agreement without notice of any kind or character to 
the said Concessionaire, and shall also have the right there­
upon to dispossess the said Concessionaire either with or 
without legal procedings to that end, as it may be deemed 
proper and advised; the waiver of one or more breaches 
and violations of the hereinbefore recited covenants and 
agreements shall not be construed as a waiver of subse­
quent violations or breaches of the covenants, agreements 
or stipulation itself.

S e v e n t e e n t h —The personal pronoun used herein as re­
ferring to the Concessionaire shall be understood and con­
strued as having reference to either a natural person of 
either sex, a firm, or a corporation.

E ig h t e e n t h —All notices and orders herein provided to 
be given to the Concessionaire, may be served by mailing 
the same to him at his last known place of residence or 
business, outside of Glen Echo Park, or by delivering a 
copy thereof to him in person, or by leaving it addressed to



E74

him at his place of business, in said Glen Echo Park, with 
any person then in charge of the same.

N ineteenth—In all instances of the agreement providing 
for the cancelation of same, and particularly in paragraphs 
numbered 1, 2, 6, 9, 10, and 12, but not limited to said 
paragraphs, it is mutually understood and agreed that if 
the cancelation is not the direct result of any legal miscon­
duct on the part of the Concessionaire, or a willful and 
continued violation of the conditions of this agreement by 
Concessionaire after due written notice by the party of 
the first part, then, upon cancellation by the party of the 
first part, Concessionaire shall be entitled to a rebate ac­
cording to the formula set forth in the sixth paragraph 
herein, and any provisions of this agreement to the con­
trary, or in conflict with this provision notwithstanding.

I n  W it n e s s  W h e r e o f , the said parties of the first and 
second part have directed their proper officers to execute 
these presents in triplicate and to cause the corporate seal 
of said corporations to be hereto affixed.

Kebar, I nc.
By Abram Baker 

President

A ttest:

By (illegible)
General Manager

B & B Industrial, Catering 
Service, I nc.

By H. W. B irg feld , J r. 
President

Secretary 
Attest :

Secretary



E75

Stale's Exhibit No. 8B

Iyebar, I nc.
Glen E cho Park
Playground of the Nations’s Capital 
Glen E cho
Montgomery County, Md.
OLiver 2-6743

August 29, 1958.
Mr. William Birgfeld 
B & B Catering Co., Inc.
Dear Mr. Birgfeld:

This will confirm the agreement made with me for the 
exclusive privilege of operating all the food and drink 
stands at Glen Echo Park. If the terms and conditions 
meet with your approval, please affix your signature to both 
copies and return to me, in order that I may sign them.

The following terms will cover the 1959 and 1960 Seasons:
1. The combined rental, which includes Advertising 

and Promotion, plus Montgomery County Operating 
License for 1959 and 1960 Seasons will be $126,250.00 
payable in four equal installments of $31,562.50, pay­
able on December 15, 1958, June 15, 1959, December 
15, 1959 and June 15, 1960.

2. No one under 18 years of age should work for 
your concern.

3. (25%) of the gross receipts from the operation 
of Ballroom Refreshment Stand. It is further under­
stood that you will pay the premiums on personal lia­
bility insurance secured by Kebar, Inc; that you will be 
solely responsible and answerable for all accidents or 
injuries, which might occur under these operations,



E76

and that you will indemnify Kebar, Inc. from any 
claims.

Very truly yours,
Abram Baker
Abram Baker, President
Kebar, Inc.

I agree with the terms outlined above:
H. W. Birgfeld, J r., Pres.
H. W. Birgfeld, Jr.
B & B Catering Co., Inc.

Sam Baker, Secretary-Treasurer







t