Newman v. Piggie Park Enterprises Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

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William Turner Oral History

    I n  t h e

i>upnmu> (Umtrt of tlii> lluittb States
October T erm, 1967 

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

A nne P. New m an , S haron W. Neal and 
John M ungin ,

Petitioners,
v.

P iggie P ark E nterprises, I nc., a Corporation, 
and L. M aurice B essinger.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

M atthew  J. Perry 
L incoln C. Jenkins, J r . 

H emphill P. Pride, II
1107% Washington Street 
Columbia, South Carolina

Jack Greenberg 
James M. N abrit, III 
M ichael M eltsner

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



I N D E X

Citation to Opinions B elow .............................................. 1

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

Question Presented ...........................................................  2

Statutory Provisions Involved ........................................ 2

Statement ...........................................................................  2

Reasons for Granting the Writ ......................................  6

Introduction ......................................................................... 6

The Court of Appeals incorrectly construed Title 
II of the Civil Rights Act of 1964 to permit 
recovery of counsel fees only upon a showing 
of subjective bad faith ..........................................  8

Conclusion ...........................................................................  14

A ppendix—

Opinion of the United States Court of Appeals 
for the Fourth Circuit ..........................................  la

Opinion and Order of District Court ..................... 11a

T able of Cases

Bates v. Bonner Private Club, No. 1222 (S.D. Ga.) ..... 7
Bell v. School Board of Powhatan County, 321 F.2d

494 (4th Cir. 1963) .......................................................... 13
Braxton v. Jeanette, No. 505 (E.D. N.C.) ..................... 7

Epps v. Krystal Co., No. 66-648 (N.D. Ala.) ................... 7

PAGE



11

Georgia v. Rachel, 384 U.S. 780 (1966) .....................  10
Goode v. Acme Cafe, No. 4357-66 (S.D. Ala.) ............... 7
Goode v. Johnny’s Drive-in Restaurant, No. 4358-66

(S.D. Ala.) .......................................................................  7
Goodwill v. Fletcher’s Bar-B-Que, No. 4362-66 (S.D.

Ala.) ................................................................................. 7
Goodwill v. Presto Restaurant, No. 4359-66 (S.D. Ala.) 7 
Gregory v. Myer, appeal docketed, No. 32948 (U.S. Ct. 

of App. 5th Cir.) ...........................................................  7

Hamm v. City of Rock Hill, 379 U.S. 306 (1964) ....... 10

Heart of Atlanta Motel v. United States, 379 U.S.
241 (1964) .......................................................................  10

Hughes v. Falgut, No. 66-741 (N.D. Ala.; injunction 
entered April 13, 1967) .................................................. 7

Johnson v. Larry’s Restaurant, No. 4363-66 (S.D. Ala.) 7

Katzenbach v. McClung, 371 U.S. 291 (Dec. 14,1964) .... 12 
Kyles v. Paul, appeal docketed, No. 18824 (U.S. Ct. 

App. 8th Cir.) .................................................................  7

Lawson v. Tito’s Restaurant, No. 4361-66 (S.D. Ala.) 7 
LeFlore v. Butlers Chick-a-Teria, No. 4360-66 (S.D.

Ala.) ................................................................................. 7
LeShore v. Carter, No. 3614-65 (S.D. Ala.) ..................  7
Little v. Sedgefield Inn, No. C-180-G-65 (M.D. N.C.) .... 7

Miller v. Amusement Enterprises, Inc., appeal dock­
eted, No. 24,259 (U.S. Ct. App. 5th Cir.) ..................  7

Mitchell v. Krystal Co., No. 65-579 (S.D. Ala.) ......... 7

Nesmith v. Raleigh YMCA, No. 1768 (M.D. N.C.) .....

PAGE

7



Ill

Rax v. Piper, No. 11,307 (W.D. La.) ............................  7
Rolax v. Atlantic Coastline Railroad Co., 186 F.2d 473 

(4th Cir. 1951) ...............................................................  13

Stout v. YMCA of Bessemer, No. 66-715 (S.D. Ala.) 7

Wooten v. Moore, No. 631 (E.D. N.C.) ........................  7

S tatutes

28 U.S.C. §1254(1) ............................................................  2

42 U.S.C. §2000a-(a) .........................................................  10

42 U.S.C. §2000a-2 .............................................................  10

42 U.S.C. §2000a-3(a) .......................................................  10
42 U.S.C. §2000a-3(b) ................................ 2, 6, 8, 9,10,13,14

42 U.S.C. §2000a-(c) (2) .................................................... 3,12

42 U.S.C. §2000a-3(e) .....................................................  12

42 U.S.C. §2000a-5 .............................................................. 10

Other A uthorities

110 Cong. Rec. 14201 (June 17, 1964) ......................11,12

110 Cong. Rec. 14213 (June 17, 1964) ........................ 11

110 Cong. Rec. 14214 (June 17, 1964) ......................11,12

New York Times (“Integration in South: Erratic 
Pattern” ) May 29, 1967 ................................................  7

PAGE



I n  t h e

&ttpr£ttt£ (Emtrt of thr llnttefr Stairs
October T erm, 1967 

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

A nne P. New m an , S haron W. Neal and 
John M ungin ,

Petitioners,
v.

P iggie P ark E nterprises, I nc., a Corporation, 
and L. M aurice B essinger.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to 
review the judgment of the United States Court of Ap­
peals for the Fourth Circuit entered in the above-entitled 
case on April 24, 1967.

Citation to Opinions Below

The opinion of the United States Court of Appeals 
for the Fourth Circuit is not yet reported, and is set forth 
in the appendix hereto, infra p. la. The decision of the 
United States district court for the district of South 
Carolina is reported at 256 F. Supp. 941, and appears in 
appendix infra p. 11a and in the record at pp. 206a 
et seq.



2

Jurisdiction

The judgment of the United States Court of Appeals 
for the Fourth Circuit was entered on April 24, 1967. 
Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 
§1254(1).

Question Presented

Whether the Court of Appeals correctly construed Title 
II of the Civil Rights Act of 1964 as denying recovery 
of counsel fees by Negroes excluded from places of public 
accommodation unless a showing is made that a restau­
rateur’s patently frivolous defenses and obstructive tactics 
were the product of dishonesty and bad faith.

Statutory Provisions Involved

This case involves Title II of the Civil Rights Act of 
1964, 42 U.S.C. §§2000a et seq., and more particularly, 
42 U.S.C. §2000a-3(b):

In any action commenced pursuant to this subchapter, 
the court, in its discretion, may allow the prevailing- 
party, other than the United States, a reasonable 
attorney’s fee as part of the costs . . . .

Statement

Negro plaintiffs instituted this class action December 18, 
1964 against the corporate operator of a chain of six 
restaurants and its president and principal stockholder, 
seeking injunctive relief prohibiting exclusion of Negroes 
and recovery of counsel fees pursuant to the Civil Rights 
Act of 1964, 42 U.S.C. §§2000a et seq. The complaint 
alleged, in summary, that at various locations in South



3

Carolina the corporation operates restaurants which affect 
commerce and where Negroes are refused service (R. 
la-7a).

Defendants answered by denying Negroes were refused 
service; that operation of the restaurants affected com­
merce ; and that the restaurants were places of “public 
accommodation” as that term is defined in the Civil Rights 
Act of 1964.1 Defendants asserted that Title II is uncon­
stitutional in violation of the Commerce Clause (Art. I, 
§8); the Privileges and Immunities Clause (Art. IV, §2); 
the Due Process and Equal Protection Clauses of the 
Fourteenth Amendment; and the Thirteenth Amendment 
to the Constitution of the United States. In addition, the 
corporation president alleged that service of food to 
Negroes, as required by Title II, violated his freedom 
of religion as protected by the First Amendment (R. 8a- 
10a; lla-13a; 17a-20a).

At a trial, April 4-5, 1966 (R. 21a-205a), the facts as 
found by the district court were not materially disputed. 
The corporation operates six eating places, five of which 
are drive-ins located on major highways (R. 211a-212a). 
The sixth, Little Joe’s Sandwich Shop, is in downtown 
Columbia, South Carolina with tables and chairs for 
approximately sixty customers (R. 212a). The district 
court found “ at least” forty percent of the food purchased 
by the restaurants each year moved in commerce (R. 221a) 
and that the restaurants served many interstate travelers 
(R. 215a-216a). It concluded that the operation of the 
six restaurants affected commerce within the meaning of 
Title II, 42 U.S.C. §2000a-(c) (2).

1 Defendants filed an answer February 5, 1965, an amended answer 
August 23, 1965 and were permitted by the district court to file a second 
amended answer March 19, 1966. A ll generally denied the allegations of 
the complaint.



4

Despite denials of Negro exclusion in the pleadings, 
the president of the corporation, a corporation book­
keeper, and a waitress testified that Negroes were served 
only on a kitchen door take-out basis (R. 160a, 169a, 172a, 
189a). The district court found also that two plaintiffs 
had been denied service at one of the restaurants because 
of race (R. 214a-214a).

Although the district court found discrimination, and 
that operation of the six restaurants affected commerce, 
it excluded the five drive-ins from coverage on the ground 
that Congress had not intended Title II to apply to drive- 
ins. It entered an order enjoining racial discrimination 
at the Sandwich Shop only, awarded Negro plaintiffs their 
costs, but refused to award counsel fees, infra p. 34a (R. 
229a).

Plaintiffs appealed to the United States Court of Ap­
peals for the Fourth Circuit; the United States filed a 
brief Amicus Curiae supporting plaintiffs’ position that 
the drive-in restaurants were covered by the Act. The 
Court of Appeals, sitting en banc, agreed holding that 
the district court should have enjoined racial discrimina­
tion at all restaurants operated by the defendants.

The Court of Appeals further instructed the district 
court “ to consider the allowance of counsel fees, whether 
in whole or in part,” and set forth the “ subjective” test 
which district courts should apply to determine whether 
to permit recovery of counsel fees, infra p. 7a:

In exercising its discretion, the district court may 
properly consider whether any of the numerous de­
fenses interposed by defendants were presented for 
purposes of delay and not in good faith. But the test 
should be a subjective one, for no litigant ought to 
be punished under the guise of an award of counsel 
fees (or in any other manner) from taking a position



5

Judge Winter, with whom Judge Sobeloff joined, dis­
agreed with the majority conclusion that “good faith, 
standing alone,” should “ immunize a defendant from an 
award against him.” Judge Winter examined the rela­
tionship of the provision for recovery of counsel fees to 
enforcement of Title II, and concluded that a “ subjective” 
test would frustrate compliance, infra p. 9a:

In providing for counsel fees, the manifest pur­
poses of the Act are to discourage violations, to en­
courage complaints by those subjected to discrimina­
tion and to provide a speedy and efficient remedy for 
those discriminated against. I f counsel fees are with­
held or grudgingly granted, violators feel no sanctions, 
victims are frustrated and instances of unquestionably 
illegal discrimination may well go without effective 
remedy. To immunize defendants from an award of 
counsel fees, honest beliefs should bear some reason­
able relation to reality; never should frivolity go 
unrecognized.

Petitioners are represented by retained private counsel 
of Columbia, South Carolina, who have been assisted by 
salaried attorneys of a nonprofit civil rights organization. 
The award of counsel fees is sought only by the retained 
South Carolina counsel for their services, and not for 
others.

in court in which he honestly believes—however lack­
ing in merit that position may be.



6

REASONS FOR GRANTING THE WRIT 

Introduction

This is a case of first impression in this Court. The 
Court of Appeals has construed the counsel fees provi­
sion of the public accommodation Title of the Civil Rights 
Act of 1964 to authorize an award only when under a 
“ subjective” test, a litigant takes a position “not in good 
faith.” Unless a district court finds such a state of mind, 
a prevailing party is not entitled to recover counsel fees 
“however lacking in merit” the position taken or tactics 
employed by a discriminator.

We believe that such a construction of $2000a-3(b) 
seriously impairs the acknowledged congressional purpose 
“to assure rapid and effective compliance” with Title II, 
infra p. 7a; that limitation of an award to cases where 
bad faith is shown injects an element of culpability into 
the counsel fee provision unrelated to the purposes of 
Title I I ; and that the Court of Appeals, by limiting awards 
to occasions when a court of the United States would 
have been authorized to award a fee without statutory 
authority, has seriously misread the intent of Congress.

The counsel fee provision of Title II is an important 
means of promoting widespread compliance with the Act 
by placing restaurateurs on notice that frivolous refusal 
to comply promptly may lead to judicial proceedings in 
which the burden of expenses may be on the restaurant, 
not the wronged plaintiff, if the defendant resists on 
frivolous grounds or is dilatory in his defense. If restau­
rateurs are permitted to avoid an award of counsel fees 
on the basis that they honestly believe in a position, how-



7

We call the Court’s attention to the fact that discrimina­
tion in public accommodations remains a serious problem 
once a Negro leaves well-travelled interstate highways.2 
As a recent survey by the New York Times (“ Integration 
in South: Erratic Pattern” ) put it:

It is possible to motor through the green valleys 
of Virginia, veer through the cotton fields in Alabama 
and Mississippi, and end up in Texas cattle country 
with the conviction that racial segregation and dis­
crimination are gone at last.

You could get that impression if you dined at chain 
restaurants like Howard Johnson’s, slept in chain 
motels such as the Holiday Inns, . . . .

A  different itinerary might leave you convinced 
that the South has not changed at all. Asking for a 
night’s lodging in an obscure motel can be risky for

2 W hile appellants have been unable to ascertain the precise number of 
Title I I  actions involving restaurants presently pending before the federal 
courts, the number of cases known to petitioners suggests that the total 
is large. See, Little v. Sedgefield Inn, No. C-180-G -65 (M .D . N .C .) ; 
LeShore v. Carter, No. 3614-65 (S .D . A la .) ; LeFlore v. Butlers Chick-a- 
Teria, No. 4360-66 (S .D . A la .) ; Lawson v. Tito’s Restaurant, No. 4361-66 
(S .D . A la .) ;  Johnson v. Larry’s Restaurant, No. 4363-66 (S .D . A la .) ;  
Hughes v. Falgut, No. 66-741 (N .D . A la .; injunction entered April 13, 
1 9 6 7 ); Gregory v. Myer, appeal docketed, No. 32948 (U .S . Ct. of A p p . 
5th C ir .) ; Goodwill v. Presto Restaurant, No. 4359-66 (S .D . A la .) ; Good­
will v. Fletcher’s Bar-B-Q.ue, No. 4362-66 (S .D . A l a .) ; Goode v. Johnny’s 
Drive-in Restaurant, No. 4358-66 (S .D . A la .) ; Goode v. Acme Cafe, No. 
4357-66 (S .D . A la .) ;  Epps v. Krystal Co., No. 66-648 (N .D . A la .) ;  
Braxton v. Jeanette, No. 505 (E .D . N .C .) ; Bates v. Bonner Private Club, 
No. 1222 (S .D . G a .) ; Mitchell v. Krystal Co., No. 65-579 (S .D . A la .) ;  
Nesmith v. Raleigh YM CA, No. 1768 (M .D . N .C .) ; Wooten v. Moore, 
No. 631 (E .D . N .C .) ; Stout v. YMCA of Bessemer, No. 66-715 (S .D . A l a .) ; 
Rax v. Piper, No. 11,307 (W .D . L a .) ; Miller v. Amusement Enterprises, 
Inc., appeal docketed, No. 24,259 (U .S . Ct. A p p . 5th C ir .) ; Kyles v. Paul, 
appeal docketed, No. 18824 (U .S . Ct. A p p . 8th Cir.)

ever lacking in merit that position may be, the incentive
to comply promptly will be significantly reduced.



8

a Negro who wants to avoid embarrassment. And in 
countless small towns, independent restaurants cater 
mainly to an all-white clientele, and Negroes still 
watch movies from segregated balconies.

(N. Y. Times, May 29, 1967, P. 1, Col. 1)

In enacting Title II Congress labored long to fashion a 
scheme which would assure prompt compliance by nearly 
all eating facilities because it is scant consolation to the 
Negro interstate traveler that many restaurants are deseg­
regated if the one he enters continues to discriminate. 
Commerce is burdened by the very uncertainty that all 
eating facilities are not desegregated. As it limits appli­
cation of the counsel fee provision to the unusual case 
where the elusive concept of manifest insincerity is demon­
strated, the construction given §2000a-3(b) by a majority 
of the court of appeals only serves to stiffen resistance 
to the elimination of discrimination in public accommoda­
tions.

The Court of Appeals incorrectly construed Title II 
of the Civil Rights Act of 1964 to permit recovery 
of counsel fees only upon a showing of subjective 
bad faith

In actions brought to desegregate public accommoda­
tions, the Civil Rights Act of 1964 provides that a prevail­
ing party may recover reasonable attorney’s fee (42 U.S.C. 
§2000a-3(b)) :

In any action commenced pursuant to this subchapter, 
the court, in its discretion, may allow the prevailing 
party, other than the United States, a reasonable 
attorney’s fee as part of the costs . . . .



9

“In exercising its discretion, the district court may 
properly consider whether any of the numerous de­
fenses interposed by defendants were presented for 
purposes of delay and not in good faith. But the test 
should be a subjective one, for no litigant ought to 
be punished under the guise of an award of counsel 
fees (or in any other manner) from taking a position 
in court in which he honestly believes—however lack­
ing in merit that position may be.”

The court below, therefore, has construed §2000a-3(b) 
to make the vagrant notion of good faith a complete de­
fense to recovery of counsel fees regardless of how patently 
frivolous or how obstructive the tactics employed. Such 
a construction is a variance with the congressional purpose 
in enacting §2000a-3. As Judges Winter and Sobeloff 
put it, infra p. 9a:

In providing for counsel fees the manifest purposes 
of the Act are to discourage violations, to encourage 
complaints by those subjected to discrimination and 
to provide a speedy and efficient remedy for those 
discriminated against. I f counsel fees are withheld 
or grudgingly granted, violators feel no sanctions, 
victims are frustrated and instances of unquestionably 
illegal discrimination may well go without effective 
remedy. To immunize defendants from an award of 
counsel fees, honest beliefs should bear some reason­
able relation to reality; never should frivolity go 
unrecognized.

The soundness of Judge Winter’s construction of the 
section is demonstrated by the legislative history of Title II

The court of appeals, sitting en banc, directed the dis­
trict court to exercise its discretion to award counsel fees
only if it found subjective bad faith, infra p. 7a:



10

as a whole and §2000a-3(b) in particular. Title II demon­
strates a plain desire to deter any substantial or prolonged 
litigation which is inconsistent with the narrow construc­
tion below of §2000a-3(b). For example, 42 U.S.C. 
§2000a-3(a) permits intervention by the Attorney General 
in privately initiated public accommodation suits, appoint­
ment of counsel for a person aggrieved, and “ the com­
mencement of the civil action without the payment of fees, 
costs or security.” 42 U.S.C. §2000a-5 authorizes the At­
torney General to commence litigation where there is “ a 
pattern or practice of resistance to the full enjoyment” 
of Title II rights. 42 U.S.C. §2000a-2 broadly prohibits 
any attempt to punish, deprive, or interfere with rights 
to equal public accommodations. See Georgia v. Rachel, 
384 U.S. 780 (1966); Hamm v. City of Rock Hill, 379 U.S. 
306 (1964). “The Act as finally adopted was most com­
prehensive, undertaking to prevent through peaceful and 
voluntary settlement discrimination in . . . public facilities” 
Heart of Atlanta Motel v. United States, 379 U.S. 241, 246 
(1964). The counsel fee provision of 42 U.S.C. §2000a-3(b) 
is part of the congressional plan for deterring evasion 
and resistance to the “ full and equal enjoyment of the 
goods, services, facilities, privileges, advantages and ac­
commodations of any place of public accommodation,” 
42 U.S.C. §2000a-(a). Although the court below found that 
in enacting Title II “ Congress intended to assure rapid 
and effective compliance with its terms,” infra p. 7a, it 
construed §2000a-3(b) in a manner which makes “ rapid 
and effective compliance” more, not less, difficult.

The legislative record is scanty, but such debate as re­
lates to §2000a-3 evidences intent to induce compliance 
by penalizing the assertion of frivolous claims. On the 
other hand, there is no support in the legislative history 
for the notion that frivolity must be combined with a



11

subjective mental state evincing bad motives. In fact, 
when Senator Ervin sought to eliminate the provision 
from the Act on the ground that it would make those 
benefiting from it special favorites of the law and would 
encourage “ambulance chasing” his amendment was 
rejected, 110 Cong. Rec. 14201, 14213-14 (June 17, 1964). 
Senator Pastore made a brief statement in defense of 
the provision stating that its purpose was deterrence of 
frivolous suits and “ . . . the court within its discretion 
is given power to order payment of attorneys’ fees to the 
prevailing party. . . .  It is not favoritism towards one 
party as against the other,” 110 Cong. Rec. 14214 (June 17, 
1964).3 Senator Miller emphasized the deterrence of 
frivolous litigation. He saw no need to delete the section 
because attorneys would be compensated only if they 
raised positions with merit:

. . .  I believe that this is the answer to the Senator 
from North Carolina, that if we are concerned about 
ambulance chasing, we had better realize that the 
ambulance chasers are not about to be in the busi­
ness if there is no profit in it for them. They will be 
in the business only if they can make a profit. They

3 Senator Pastore stated:
The purpose of this provision in the modified substitute is to dis­
courage frivolous suits. Here, the court within its discretion is given 
power to order payment of attorneys’ fees to the prevailing party. 
First of all, it is within the discretion of the eourt. It is not favor­
itism towards one party as against the other. W hen a person realizes 
that he takes the chance of having attorneys’ fees assessed against him 
if he does not prevail, he will deliberate before he brings suit. H e  
will make certain that he is not on frivolous ground. (110 Cong. 
Rec. 14214, June 17, 1964).

Senator Pastore’s emphasis on frivolous suits is clearly explained by the 
character of the challenges raised to the section by Senator Ervin. The 
only construction o f Senator Pastore’s remarks consistent with their 
context and the language employed in the statute is that the provision 
was meant to penalize the assertion o f frivolous claims by either party.



12

are not going to make such profit out of any cases 
except those which are meritorious, so I believe that 
the point is exaggerated, and I believe the amendment 
is inadvisable (110 Cong. Rec. 14214, June 17, 1964).

Thus, the Senators concerned spoke of the counsel fee 
provision as if its application turned on merit or lack 
of it, not good or bad faith.4 But, as the record here 
demonstrates, to limit recovery of counsel fees to occa­
sions of subjectively determined bad faith makes the 
application of §2000a-3(b) turn on a principle which has 
only fortuitous relation to the deterrence of extended 
noncompliance and frivolous litigation. The facts of this 
case show tactics and frivolous defenses which unjustifiably 
delayed compliance and complicated petitioners burden of 
proof, but, unless one chooses to infer bad faith, they 
do not demonstrate any state of mind.

The defendant corporation in this case pursued various 
claims that 42 U.S.C. §2000a-(c) (2) was unconstitutional 
years after that question had been definitively resolved 
by this Court in Katsenbach v. McClung, 371 U.S. 291 
(December 14, 1964). Indeed, it filed a second amended 
answer raising such defenses March 30, 1966 after “care­
fully reviewing the pleadings heretofore filed” (R. 16a). 
Defendants also denied their activities affected commerce 
forcing petitioners to offer lengthy proof. But after trial, 
the district court, which erroneously excluded the drive-in 
facilities on another ground, had no trouble determining 
that all six facilities were clearly covered by the Act both

4 A  construction o f §2000a-3(b) which makes an award o f fees turn 
on objective factors is not inconsistent with the discretion it lodges in the 
district courts. That discretion is appropriately exercised to determine the 
application of objective standards and the amount of counsel fees which 
should be awarded, not to determine whether or not petitioners shall re­
ceive any counsel fees solely because a restaurateur may honestly believe 
that frivolous or dilatory tactics are justifiable.



13

because a substantial portion of the corporation’s food 
moved in commerce and because it served or offered to 
serve interstate travelers. Either circumstance satisfies 
the “ affect commerce” standard of the Act. Likewise, 
“ The fact that the defendants had discriminated both at 
Piggie Park’s drive-ins and at Little Joe’s Sandwich Shop 
was of course known to them, yet they denied the fact 
and made it necessary for the plaintiffs to offer proof, 
and the defendants could not and did not undertake at 
the trial to support their denials,” infra p. 10a. Finally, 
defendants contended the Act was invalid because it “ con­
travenes the will of God” and constitutes an interference 
with the “ free exercise of the Defendant’s religion,” infra 
p. 10a.

These defendants have done, therefore, just what Con­
gress sought to deter. “ The district judge should be told 
that in awarding counsel fees, he should include an amount 
which fully compensates plaintiffs for the time, effort 
and expenses of counsel in overcoming these elements 
of expense needlessly imposed on them” without a showing 
of bad faith, infra p. 10a.

Federal equity courts have inherent power to grant 
counsel fees in a narrow class of cases where manifest 
insincerity and bad faith have been shown. Rolax v. At­
lantic Coastline Railroad Co., 186 F.2d 473 (4th Cir. 
1951); Bell v. School Board of Powhatan County, 321 
F.2d 494, 500 (4tli Cir. 1963). In §2000a-3(b), however, 
Congress plainly intended something more than statutory 
codification of an already existing equitable authority for 
Congress authorized payment of a reasonable fee to the 
prevailing party in the face of objections that such a 
provision was unusual and did so in the context of a 
comprehensive and delicate scheme for achieving prompt



14

change in the discriminatory practices of numerous 
restaurateurs. This Court should not conclude, as did the 
Court of Appeals, that Congress meant to add nothing to 
the power of the federal courts by passage of §2000a-3(b).

CONCLUSION

W herefore, petitioners pray that the petition for writ 
of certiorari be granted.

Respectfully submitted,

M atthew  J. Perry 
L incoln C. Jenkins, Jr. 
H emphill P. Pride, II

1107% Washington Street 
Columbia, South Carolina

Jack Greenberg 
James M. N abrit, III 
M ichael M eltsner

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



A P P E N D I X



A P P E N D I X

Opinion of the United States Court of Appeals
For the Fourth Circuit

No. 10,860.

Anne P. Newman, Sharon W. Neal 
and John Mungin, 

Appellants,

versus

Piggie Park Enterprises, Inc., a Corporation 
and L. Maurice Bessinger, 

Appellees.

A ppeal prom the U nited States D istrict Court for 
the D istrict of S outh Carolina, at Columbia. Charles 

E. Simons, Jr., D istrict Judge.

(Argued February 6, 1967. Decided April 24, 1967.)

Before H aynsworth, Chief Judge, and S obeloff, B ore- 
man , B ryan, B ell, W inter and Craven, Circuit Judges.



2a

Craven, Circuit Judge:

This is a class action brought to obtain injunctive relief 
and the award of counsel fees under Title II of the Civil 
Rights Act of 1964, 42 U.S.C.A. §§2000a to a-6. Plaintiffs 
appeal from the decision of the district court holding that 
Negro citizens may be barred on account of their race and 
color from buying and eating barbecue at certain drive-in 
restaurants in South Carolina. We disagree and reverse.*

The facts as found by the district court are not in dispute. 
Briefly stated,* 1 Piggy Park Enterprises, Inc. (L. Maurice 
Bessinger is the principal stockholder and general man­
ager) owns and operates five eating establishments spe­
cializing in southern style barbecue, all of which are lo­
cated on or near interstate highways.2

All of Piggy Park’s eating places are of the drive-in type. 
In order to be served, a customer drives upon the premises 
in his automobile and places his order through an intercom. 
When he pushes a button, his order is taken by an employee 
inside the building who is usually out of sight of the cus­
tomer. A curb attendant delivers the food or beverage to 
the customer’s car and collects for the same. Orders are 
served in disposable paper plates and cups. The food is 
served in such a way that it is ready for consumption. Half 
the customers eat in their automobiles while parked on the

Opinion of the United States Court of Appeals
For the Fourth Circuit

* Judge J. Spencer Bell voted in conference with the other members of 
the court to reverse. H is untimely death on March 19, 1967, prevented his 
participation in the preparation of this opinion.

1 For a detailed statement see Newman v. Piggy Park Enterprises, Inc., 
256 F . Supp. 941 (D .S .C . 1966).

2 There was a sixth place, known as Little J oe’s Sandwich Shop, held by 
the district court to be within 42 U .S .C .A . §2000a(b) (2 ). Injunctive relief 
was granted and no appeal was taken.



3a

premises. There are no tables, chairs, counters, bars, or 
stools at any of the drive-ins sufficient to accommodate any 
appreciable number of patrons.

Although Piggy Park and Bessinger denied in their An­
swer and two amended Answers that plaintiffs had been 
denied service at one or more of Piggy Park’s drive-ins, it 
was uncontested at the trial that Piggy Park denied full and 
equal service to Negroes because of their race at all of its 
eating places.3

The district court erroneously concluded that Piggy 
Park’s drive-ins were not covered by the federal public ac­
commodations law contained in the Civil Rights Act of 
1964.4 The court reasoned that the statute would not apply

3 The few Negro customers who have been served took their places and 
picked up their orders at the kitchen windows. They were not permitted 
to consume their purchases on the premises.

4 The pertinent provisions of the Act a re :
“ 52000a. Prohibition against discrimination or segregation in places of 

public accommodation— Equal access 
“ (a) A ll persons shall be entitled to the full and equal enjoyment of 

the goods, services, facilities, privileges, advantages, and accom­
modations o f any place of public accommodation, as defined in this 
section, without discrimination or segregation on the ground of race, 
color, religion, or national origin.

“ (b) Each of the following establishments which serves the public is 
a place o f public accommodation within the meaning of this sub­
chapter if its operations affect commerce, or if discrimination or 
segregation by it is supported by State action:

“ (2) any restaurant, cafeteria, lunchroom, lunch counter, soda 
fountain, or other facility, principally engaged in selling food 
for consumption on the premises, including, but not limited tq, 
any such facility located on the premises of any real establish­
ment; or any gasoline station;

“ (3 ) . . .  ; and
“ ( 4 ) . . .

“ (c) The operations of an establishment affect commerce within the 
meaning of this subchapter if (1 ) . . .  (2 ) in the case of an establish-

Opinion of the United States Court of Appeals
For the Fourth Circuit



4a

to a drive-in eating place unless a majority of the prepared 
food sold was actually consumed by the customers on the 
premises. It found from the testimony of Mr. Bessinger 
that fifty percent of his food volume was consumed on the 
premises and fifty percent off the premises, and from that 
finding of fact concluded that the drive-ins were not facil­
ities “principally engaged in selling food for consumption 
on the premises.”

Such a construction, we think, finds no support in con­
gressional history. The Congress did not intend coverage 
of the Act to depend upon a head count of how many people 
eat on the premises or a computation of poundage or vol­
ume of food eaten. I f it had so intended, it would have 
been a simple matter to change the questioned phrase “ for 
consumption on the premises” to read “actually consumed 
on the premises.”

During the House hearings,5 the Attorney General said 
“ the areas of coverage should be clear to both the proprie­
tors and the public.” If the “commerce” tests6 are the prin­
cipal criteria, and we think they are, clarity of coverage is 
promoted. A traveler can then intelligently assume that an 
eating place on an interstate highway is covered. Under

Opinion of the United States Court of Appeals
For the Fourth Circuit

ment described in paragraph (2) o f subsection (b) of this section, 
it serves or offers to serve interstate travelers or a substantial por­
tion of the food which it serves, or gasoline or other products which 
it sells, has moved in commerce; . . 42 U .S .C .A . $2 00 0a (a )-(e ).

B Hearings on H.R. 7152 Before the House Committee on the Judiciary, 
88th Cong., 1st Sess., pt. 4, at 2655 (1963).

6 There are two in the disjunctive:
“ (c) The operations of an establishment affect commerce . . .  i f  . . .  it 

serves or offers to serve interstate travelers or a substantial portion 
of the food which it serves . . .  has moved in commerce.” 42 U .S .C .A . 
§2000a(c).



5a

the district court’s fifty percent test of actual consumption 
on the premises, prospective Negro customers would have 
no idea whether or not they might be served and would con­
tinue to occupy the intolerable position—at least with re­
spect to drive-ins—in which they found themselves prior to 
passage of the Act with respect to interstate travel.7 In a 
mobile society, the ready availability of prepared, ready-to- 
eat food is a practical necessity—not a luxury.

In our view, the emphasis in the phrase “principally en­
gaged in selling food for consumption on the premises” is 
properly on the word “ food” . The term “ principally” did 
not appear in the bill as introduced. It was added by the 
House Judiciary Committee and retained in the same form 
when the House version of the coverage provisions was 
ultimately adopted in the Senate. Its inclusion was not in­
tended to have any bearing upon the percentage of food 
consumed on the premises, but was intended only to ex­
clude from coverage places where food service was inci­
dental to some other business, e.g., bars and “Mrs. Murphy” 
tourist homes serving breakfast as a matter of convenience 
to overnite lodgers. Given the intention of Congress to 
eliminate bars,8 * * II the meaning of “principally” comes into

Opinion of the United States Court of Appeals
For the Fourth Circuit

7 That the test is absurdly impractical is illustrated by Bessinger’s testi­
mony that consumption on premises varied with the weather. On such a 
hypohesis, a given drive-in might be covered one day, week, or month, and 
not at other times.

8 See statement o f Senator Magnuson, Chairman o f the Senate Commit­
tee on Commerce and principal floor spokesman in the Senate for Title I I ,
that “a bar in the strict sense of that word would not be covered by Title
I I  since it is not ‘principally engaged in selling food for consumption on 
the premises’ .” 110 Cong. Rec. 7406 (1964).

W e  find no legislative history suggesting that “ principally”  was inserted 
to eliminate eating places doing a predominantly carry-out service.



6a

clear focus. Nothing in the 1964 Act as introduced or in 
any revision made before its enactment except for the addi­
tion of the word “principally” would exclude bars (and 
other places such as howling alleys and pool rooms) serv­
ing food as an incident to other business.

The words in the statute “ for consumption on the prem­
ises” modify the prior word “ food” and describe the kind of 
food sold by other facilities that are covered similar to res­
taurants, cafeterias, lunchrooms, lunch counters, and soda 
fountains. The Congress clearly meant to extend its power 
beyond the ordinary sit-down restaurant and just as clearly 
did not undertake to legislate with respect to grocery type 
food stores which would have been covered hut for the 
modifying phrase “ for consumption on the premises.” 
Thus, food stores are not covered, hut stores (or facilities) 
that sell food of a particular type, i.e., ready for consump­
tion on the premises, are covered. What the customers ac­
tually do with the ready-to-eat food was not the concern 
of the Congress—whether they eat it then and there or 
subsequently and elsewhere.

The sense of this plan of coverage is apparent. Retail 
stores, food markets, and the like were excluded from the 
Act for the policy reason that there was little, if any, dis­
crimination in the operation of them. Negroes have long 
been welcomed as customers in such stores. See 110 Cong. 
Rec. 6533 (1964) (remarks of Senator Humphrey).

Discrimination with respect to ready-to-eat food service 
facilities ivas a problem. When a substantial minority of 
American citizens are denied restaurant facilities—whether 
sit-down or drive-in—that are open to the public, unques­
tionably interstate commerce is burdened. Katsenbach v. 
McClung, 379 U.S. 294 (1964). It was this evil the Congress

Opinion of the United States Court of Appeals
For the Fourth Circuit



7a

sought to eliminate to the end that all citizens might freely 
and not inconveniently travel between the states. We think 
the Congress plainly meant to include within the coverage 
of the Act all restaurants, cafeterias, lunchrooms, lunch 
counters, soda foutains, and all other facilities similarly en­
gaged as a main part of their business in selling food ready 
for consumption on the premises. We are further of the 
opinion that the statutory language accomplished that pur­
pose.

C o u n s e l  F e e s

Title II as a whole demonstrates that the Congress in­
tended to assure rapid and effective compliance with its 
terms.9 42 U.S.C.A. Section 2000a-3(b) authorizes the court, 
in its discretion, to allow the prevailing party (other than 
the United States) a reasonable attorney’s fee as part of 
the costs. By reason of our reversal of the district court, 
the plaintiffs now become the “ prevailing party” , and on 
remand we instruct the district court to consider the al­
lowance of counsel fees, whether in whole or in part.

In exercising its discretion, the district court may prop­
erly consider whether any of the numerous defenses in­
terposed by defendants were presented for purposes of 
delay and not in good faith. But the test should be a sub­
jective one, for no litigant ought to be punished under the * 42

9 Thus, 42 U .S .C .A . §2000a-3(a) permits intervention by the Attorney 
General in privately initiated public accommodation suits, appointment of 
counsel for a person aggrieved, and “the commencement of the civil action 
without the payment of fees, costs or security.”  42 U .S .C .A . §2000a-5 
authorizes the Attorney General to commence litigation where there is “a 
pattern or practice of resistance to the full enjoyment” of Title I I  rights.
42 U .S .C .A . §2000a-2 broadly prohibits any attempt to punish, deprive, 
or interfere with rights to equal public accommodations. See Georgia 
v. Rachel, 384 U .S. 780 (1966).

Opinion of the United States Court of Appeals
For the Fourth Circuit



8a

guise of an award of counsel fees (or in any other manner) 
from taking a position in court in which he honestly be­
lieves—however lacking in merit that position may be.

The court may also consider whether the defendants 
acted in good faith in denying discrimination against 
Negroes and thus requiring proof of what was subsequently 
conceded to be true. A  litigant who increases the burden 
upon opposing counsel by such tactics ought ordinarily 
bear the cost of unnecessary trial preparation. The so- 
called “general denial” is not countenanced by the Federal 
Rules of Civil Procedure.

Opinion of the United States Court of Appeals
For the Fourth Circuit

Reversed and Remanded for 
Consideration of the Award 
of Counsel Fees.



9a

W inter, Circuit Judge, with whom S obeloff, Circuit 
Judge, joins, concurring specially:

Wholeheartedly I agree that Title II of the Civil Rights 
Act of 1964, 42 U.S.C.A. §2000a, et seq., is applicable to 
Piggie Park’s drive-in type facilities, and I join in the rea­
sons advanced for that conclusion. I agree also that the 
case should be remanded for consideration of an award of 
counsel fees, but I conclude that good faith, standing alone, 
should not always immunize a defendant from an award 
against him. Specifically, in this ease, defendants are not 
entitled to the defense of good faith in regard to the major 
portion of their defenses.

The district judge is told that in exercising his discretion 
he should “ consider whether any of the numerous defenses 
interposed by defendants were presented for purposes of 
delay and not in good faith” because no defendant ought to 
be punished for “ taking a position in court in which he 
honestly believes— however lacking in merit that position 
mag be.” (emphasis supplied) In this case, defendants inter­
posed defenses patently frivolous, and I would not permit 
them to avoid the costs of overcoming such defenses on a 
purely subjective test of good faith.

In providing for counsel fees, the manifest purposes of 
the Act are to discourage violations, to encourage com­
plaints by those subjected to discrimination and to provide 
a speedy and efficient remedy for those discriminated 
against. I f counsel fees are withheld or grudgingly 
granted, violators feel no sanctions, victims are frustrated 
and instances of unquestionably illegal discrimination may 
well go without effective remedy. To immunize defendants 
from an award of counsel fees, honest beliefs should bear 
some reasonable relation to reality; never should frivolity 
go unrecognized.

Opinion of the United States Court of Appeals
For the Fourth Circuit



10a

While the threat of an award of counsel fees ought not 
be used to discourage non-frivolous defenses asserted in 
good faith, the district court should be instructed to make 
an allowance in regard to some of defendants’ defenses and, 
in its discretion, to consider an allowance for the remainder 
of defendants’ defenses depending upon its determination 
of defendants’ good faith and honest belief. Those clearly 
compensable are defendants’ assertion that their “Little 
Joe’s Sandwich Shop,” a sit-down facility shown over­
whelmingly by the proof to be a place where service was 
refused to Negro citizens, was not subject to the Act. The 
fact that the defendants had discriminated both at Piggie 
Park’s drive-ins and at Little Joe’s Sandwich Shop was of 
course known to them, yet they denied the fact and made 
it necessary for the plaintiffs to offer proof, and the de­
fendants could not and did not undertake at the trial to 
support their denials. Includable in the same category are 
defendants’ contention, twice pleaded after the decision in 
Katzenbach v. McClung, 379 U.S. 294 (1964), that the Act 
was unconstitutional on the very grounds foreclosed by 
McClung; and defendants’ contention that the Act was in­
valid because it “ contravenes the will of God” and con­
stitutes an interference with the “ free exercise of the De­
fendant’s religion.” The district judge should be told that, 
in awarding counsel fees, he should include an amount 
which fully compensates plaintiffs for the time, effort and 
expenses of counsel in overcoming these elements of ex­
pense needlessly imposed on them.

Only as to the remaining defenses do I think that de­
fendants’ good faith is the issue. If good faith is found not 
to have existed as to them, an additional award of counsel 
fees on a like basis should be made.

Opinion of the United States Court of Appeals
For the Fourth Circuit



11a

Opinion and Order of District Court

A nne P. New m an , S haeon W. Neal and 
J ohn M ungin ,

Plaintiffs,
v.

P iggxe Pakk E nterprises, I nc., a Corporation, 
and L. M aurice B essinger,

Defendants.

Civ. A. No. AC-1605

UNITED STATES DISTRICT COURT 
D. South Carolina, Columbia Division 

July 28, 1966

O R D E R

Simons, District Judge.

This suit was commenced December 18, 1964 by plain­
tiffs, who are Negro citizens and residents of South Caro­
lina and of the United States, on behalf of themselves 
and others similarly situated, pursuant to Rule 23(a) (3) 
of the Federal Rules of Civil Procedure. Jurisdiction of 
this court is expressly conferred by Title II, Section 207 
of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a-6.1

1 “ §2000a-6. Jurisdiction; exhaustion of other remedies; exclusiveness 
of remedies; assertion of rights based on other Federal or State laws and 
pursuant of remedies for enforcement of such rights

“ (a) The district courts of the United States shall have jurisdiction 
o f proceedings instituted pursuant to this subchapter and shall exer­
cise the same without regard to whether the aggrieved party shall



12a

The gravamen of plaintiffs’ complaint is that corporate 
defendant operates several restaurants in Columbia and 
elsewhere in South Carolina which are places of public 
accommodation within the purview of the Civil Rights 
Act of 1964; and that defendant violated said Act by 
denying service to plaintiffs at certain of its restaurants 
on July 3rd and August 12th, 1964 solely upon the ground 
that they were Negroes. The complaint further specifically 
alleges that in their restaurants defendants serve and 
offer to serve interstate travelers; that a substantial por­
tion of the goods which they serve move in interstate 
commerce; and that defendants’ operations affect com­
merce between the states. Plaintiffs ask that defendants 
be temporarily and permanently enjoined from discrim­
inating against plaintiffs and the class of persons they 
represent upon the ground of race, color, religion and 
national origin.

Defendants admit jurisdiction of the court under Sec­
tion 2000a-6, supra, generally deny the material allega­
tions of plaintiffs’ complaint, and specifically deny the 
allegations of the complaint which allege that their estab­
lishments are places of public accommodation as defined 
in the Civil Rights Act of 1964. Although defendants 
concede that they cater to white trade only and refuse to

Opinion and Order of District Court

have exhausted any administrative or other remedies that may be 
provided by law.

“ (b) The remedies provided in this subchapter shall be the exclusive 
means o f enforcing the rights based on this subchapter, but nothing 
in this subchapter shall preclude any individual or any State or local 
agency from asserting any right based on any other Federal or State 
law not inconsistent with this subchapter, including any statute or 
ordinance requiring nondiscrimination in public establishments or 
accommodations, or from pursuing any remedy, civil or criminal, 
which may be available for the vindication or enforcement of such 
right. Pub. L. 88-352, Title I I , §207, July 2, 1964, 78 Stat. 245.”



13a

serve members of the Negro race at their restaurants 
for on-the-premises consumption of food, they stoutly main­
tain that they do not come within the coverage of Section 
2000a(b) (2) and (c) (2) of the Act, infra note 2, because
(1) they do not serve the public as required by the Act;
(2) they are not principally engaged in selling food for 
consumption on the premises; (3) they do not serve or 
offer to serve interstate travelers; and (4) they do not 
serve food, a substantial portion of which has moved in 
commerce.

Defendants further contend that all foodstuffs served 
by them which are processed in this state, including cattle 
and hogs slaughtered in South Carolina, although shipped 
in commerce from another State to this State, cannot be 
considered as moving in interstate commerce under the 
Act; that the Act denies defendants “due process of law 
and/or equal protection of the law” as guaranteed by the 
Fourteenth Amendment; that the phrase “ substantial por­
tion of the food which it serves * * * has moved in com­
merce” is so vague and indefinite as to be impossible to 
determine whether a business operation comes within the 
Act; and further, that the Act violates defendants’ “prop­
erty right and right of liberty protected by the Fifth 
Amendment.”

Defendant Bessinger further contends that the Act vio­
lates his freedom of religion under the First Amendment 
“ since his religious beliefs compel him to oppose any 
integration of the races whatever.”

The constitutionality of the public accommodations sec­
tion, Title II of the Civil Rights Act of 1964, 42 U.S.C. 
Section 2000a, has been fully considered and determined 
by the United States Supreme Court in Heart of Atlanta

Opinion and Order of District Court



14a

Motel, Inc. v. United States, et al., 379 U.S. 241, 85 S.Ct. 
348, 13 L.Ed.2d 258 (1964); Katzenbacli v. McClung, 379 
U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); see also 
Willis v. Pickrick Restaurant, D.C., 231 F.Supp. 396 (1964), 
appeal dismissed, Maddox v. Willis, 382 U.S. 18, 86 S.Ct. 
72, 15 L.Ed.2d 13 (1965).

The constitutional questions posed by defendants herein 
were before the Supreme Court in McClung and Atlanta 
Motel, supra, and were decided adversely to defendant’s 
contentions. Consequently, defendant’s defenses founded 
upon the due process and equal protection clauses of 
the Fourteenth Amendment, the Fifth Amendment, and 
the Commerce Clause of the Constitution are found by 
the court to be without merit in view of the McClung and 
Atlanta Motel cases, supra. It is noted that in McClung, 
Atlanta Motel and Pickrick Restaurant the motel and 
restaurants involved were admittedly places of public ac­
commodation under the Act, there being no factual issue 
as to whether they came within the purview of same. 
Neither was any question raised that the restaurants in­
volved therein were not principally engaged in selling- 
food for consumption on the premises. The sole considera­
tion before the lower court and the Supreme Court in 
those cases was the question of the constitutionality of 
the public accommodations provisions of the Act (Section 
2000a).

[2, 3] Neither is the court impressed by defendant Bes- 
singer’s contention that the judicial enforcement of the 
public accommodations provisions of the Civil Rights Act 
of 1964 upon which this suit is predicated violates the 
free exercise of his religious beliefs in contravention of 
the First Amendment to the Constitution. It is unques-

Opinion and Order of District Court



15a

tioned that the First Amendment prohibits compulsion 
by law of any creed or the practice of any form of religion, 
but it also safeguards the free exercise of one’s chosen 
religion. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 
8 L.Ed.2d 601 (1962). The free exercise of one’s beliefs, 
however, as distinguished from the absolute right to a 
belief, is subject to regulation when religious acts require 
accommodation to society. United States v. Ballard, 322 
U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (Mails to 
defraud); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 
244 (1878) (polygamy conviction); Prince v. Common­
wealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 
L.Ed. 645 (1943) (minor in company of ward distributing 
religious literature in violation of statute). Undoubtedly 
defendant Bessinger has a constitutional right to espouse 
the religious beliefs of his own choosing, however, he does 
not have the absolute right to exercise and practice such 
beliefs in utter disregard of the clear constitutional rights 
of other citizens. This court refuses to lend credence 
or support to his position that he has a constitutional right 
to refuse to serve members of the Negro race in his busi­
ness establishments upon the ground that to do so would 
violate his sacred religious beliefs.

The sole question for determination under the circum­
stances of instant case is whether any or all of defendants’ 
eating establishments are places of public accommodation 
within the meaning and purview of Section 201 of Title II 
of the Civil Rights Act of 1964 (Section 2000a).2 In ar-

2 “ §2000a. Prohibition against discrimination or segregation in places 
of public accommodation— Equal access

“ (a) A ll persons shall be entitled to the full and equal enjoyment of 
the goods, services, facilities, privileges, advantages, and accommoda­
tions o f any place of public accommodation, as defined in this section,

Opinion and Order of District Court



16a

riving at this determination the court is primarily con­
cerned with the following factual and legal questions, which 
will he considered in inverse order hereinafter: (1) Is
corporate defendant’s establishments, or any of them, “prin­
cipally engaged in selling food for consumption on the 
premises” ; (2) Does said defendant at its establishments 
serve or offer “ to serve interstate travelers” ; and (3) has 
“a substantial portion of the food which it serves, * * * * 
or other products which it sells * * * moved in commerce’”?

Should the court’s answer to question # 1  be in the 
affirmative, and either questions #2  or # 3  in the alter­
native in the affirmative, then such of defendants’ estab­
lishments are places of public accommodation within the

Opinion and Order of District Court

without discrimination or segregation on the ground of race, color, 
religion, or national origin.

“Establishments affecting interstate commerce or supported in their 
activities by State action as places of public accommodation;  lodg­
ings;  facilities principally engaged in selling food for consumption 
on the premises; gasoline stations;  places of exhibition or entertain­
ment; other covered establishments

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

«^2 ) * * *

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

“ (3) » * * ; and
*  *  *

“ (e) The operations of an establishment affect commerce within the 
meaning of this subchapter if  (1) * * 0 (2 ) in the case of an estab­
lishment described in paragraph (2) o f subsection (b) of this section, 
it serves or offers to serve interstate travelers or a substantial por­
tion of the food which it serves, or gasoline or other products which 
it sells, has moved in commerce; * * * ”



17a

purview of the Act, and plaintiffs are entitled to the 
requested relief as to these establishments.

The cause was heard by the court on April 4th and 5tli, 
1966. Subsequently excellent briefs and arguments have 
been filed by counsel for the parties. After a careful 
consideration of the evidence and the law and pursuant 
to Rule 52(a) of Federal Rules of Civil Procedure the 
court makes its findings of fact and conclusions of law.

F indings of F act

1. Defendant Piggie Park Enterprises, Inc., hereinafter 
designated as Piggie Park, is a South Carolina corporation 
with its principal office in Columbia, South Carolina. De­
fendant L. Maurice Bessinger, hereinafter designated as 
Bessinger, is the principal stockholder and general man­
ager of the corporate defendant.

2. Piggie Park owns, operates, or franchises six eating 
establishments specializing in Southern style barbecue 
which are located as follows:3 l)P iggie Park No. 1, 1601 
Charleston Highway, also being designated as U. S. High­
ways Nos. 21, 176 and 321 at the intersection of S. C. 
Highway No. 215, in West Columbia, South Carolina; 2) 
Piggie Park No. 2 on the Sumter Highway, also being 
designated as U. S. Highways Nos. 76 and 378 in Columbia, 
South Carolina; 3) Piggie Park No. 3 on the Camden 
Highway, also being designated as U. S. Highway No. 1, 
in Columbia, S. C .; 4) Piggie Park No. 4 on Broad Street 
Extension, which is also designated as U. S. Highways 
Nos. 76, 378 and 521 in Sumter, South Carolina; 5) Piggie

3 The official South Carolina State Highway Department Primary Sys­
tem Map for 1965-66 has been used in determining the United States and 
State Highway designations.

Opinion and Order of District Court



18a

Park No. 6 on Highway No. 291 By-Pass North, which 
connects U. S. Highways Nos. 25, 29, and Interstate High­
ways Nos. 85 and 385 in Greenville, South Carolina; and 
6) Piggie Park No. 7, also known as “Little Joe’s Sandwich 
Shop,” at 1430 Main Street in Columbia, South Carolina. 
All of Piggie Park’s eating places are of the drive-in type 
with the exception of Piggie Park No. 7 also known as 
“Little Joe’s Sandwich Shop” in downtown Columbia. 
In order to be served at one of the drive-ins a customer 
drives upon the premises in his automobile and places his 
order through an intercom located on the teletray imme­
diately adjacent to and left of his parked position. After 
pushing a button located on the teletray his order is taken 
by an employee inside the building who is generally out 
of sight of the customer. When the order is prepared a 
curb girl then delivers the food or beverage to the cus­
tomers’ car and collects for same. This is generally the 
only contact which any of defendant’s employees has with 
any customer unless additional service is desired. The orders 
are served in disposable paper plates and cups, and may 
be consumed by the customer in his automobile on the 
premises or after he drives away, solely at his option,. 
There are no tables and chairs, or counters, bars or stools 
at any of the drive-ins sufficient to accommodate any ap­
preciable number of patrons. The service is geared to ser­
vice in the customers’ cars. Piggie Park claims the distinc­
tion of operating the first drive-in specializing in barbecue 
although it sells other types of short orders. The barbecue 
meat and hash comprising a substantial majority of its 
sales are sold in bulk by the pound or the quart, as well 
as in individual orders. Customers are encouraged to con­
sume the food off the premises by its service in disposable

Opinion and Order of District Court



19a

containers, with no chinaware or silver eating utensils be­
ing used. At the five drive-ins the carry-out business for 
off-the-premises consumption averages fifty percent during 
the year, depending upon the season and the weather.4

3. Piggie Park No. 7, or “Little Joe’s Sandwich Shop” , 
in downtown Columbia is the one exception to the drive-in 
type operation. Defendant operates this establishment as 
a cafeteria type sandwich shop offering three-minute ser­
vice, also specializing in barbecue, with table and chair 
seating capacity for sixty customers and where the food is 
primarily consumed on the premises. It is located in the 
prime shopping area of Columbia’s Main Street; ninety 
percent of its business is between 11:00 a.m. and 2 :30 p.m., 
with the majority of its customers being office workers, 
clerks and downtown shoppers. Its business hours corre­
spond generally with those of the surrounding retail stores.

4 The uncontradicted testimony of defendant Bessinger at pp. 222-223 
of Tr. was as follows:

“ Q. Mr. Bessinger, with reference to the total volume of your busi­
ness, do you know how much of your business is carry out, or take 
away business from your drive-ins?

“ A . Yes. O f course, as I  said, we try to encourage this to the 
maximum degree. This would average 5 0 % . Carry out would aver­
age 5 0 % . I  say average, because in the real cold temperature it 
would jump up to eighty to ninety percent; in the real hot tempera­
ture it would also jump up to eighty to ninety percent. So it will 
have an overall percentage o f my business that I  know for a fact is 
carried back to the office or carried back home or carried on a picnic, 
what have you.

“ Q. Do you in fact have facilities for bulk carrying out?
“ A . Yes we sell a lot of barbecue by the pound. W e  sell a lot of 

quarts o f hash by the quart, and slaw by the quarts, and rice by the 
quarts. W e  built up quite a big business on that.

“ Q. Carry off?
“ A . Oh absolutely, and July 4th we sell several tons o f barbecue.”

It is noted that plaintiff’s counsel did not cross-examine Bessinger to 
any extent in reference to the above testimony and no evidence was offered 
to counter or rebut the same.

Opinion and Order of District Court



20a

4. Two of the Negro plaintiffs were denied service by 
Piggie Park No. 2 on the Sumter Highway in Columbia on 
August 12, 1964 when they drove upon the premises in 
their automobile. At first a waitress who came out seeing 
that they were colored went back into the building with­
out taking their order or saying anything to them. Shortly 
a man with an order pad came to their car, he also refused 
to take their order, and gave no reason or excuse for this 
denial of service, although other white customers were be­
ing served there at that time. The fact that Piggie Park 
at all six of its eating places denies full and equal service 
to Negroes because of their race is uncontested and com­
pletely established by the evidence. The limited Negro cus­
tomers who are served must place and pick up their orders 
at the kitchen windows and are not permitted to consume 
their purchases on the premises. Thus, Negroes because 
of race are being denied full service and are victims of dis­
crimination at all of Piggie Park’s eating establishments.

5. No effort is made by defendant to determine whether 
a Negro customer who purchases food on a take-out basis 
is an interstate traveler.

6. Piggie Park displays on each of its establishments 
one modest sign located generally in the front window ad­
vising that it does not serve interstate travelers. In its 
newspaper advertisements is included a notice in small 
print at the bottom of the ad advising that “we do not serve 
interstate travelers” .5 No mention of this practice is in­
cluded in any of its radio advertisements for business. Al­
though some testimony and business records indicate that

Opinion and Order of District Court

5 See defendant’s Exhibit “ G” .



21a

defendant has refused to serve a very limited number of in­
terstate travelers in the past, the inescapable conclusion 
demanded by all of the circumstances before the court is 
that many interstate travelers do obtain service at all of 
its locations. Except for the small sign in the window no 
steps are taken by defendant at “Little Joe’s Sandwich 
Shop” to determine whether or not a customer is an inter­
state traveler, and at its drive-ins no attempt to determine 
a customer’s travel status is claimed to be made until after 
his order is prepared and actually delivered to his auto­
mobile. If the curb girl who serves the order notices that 
a customer’s car hears an out-of-state license, she is in­
structed to inquire whether such customer is an interstate 
traveler or is residing in South Carolina. There is testi­
mony to the effect that if the customer admits that he is 
an interstate tourist service is denied to him although the 
food has been especially prepared to his order. No inquiry 
whatever is ever made of any customers who are riding- 
in an automobile with South Carolina license plates. In­
asmuch as all five of defendant’s drive-ins are located at 
most strategic positions upon main and much traveled inter­
state highways and especially in view of the limited action 
taken by defendant to determine the travel status of its 
customers the court can only conclude that defendant does 
serve interstate travelers at all of its locations.6

6 The only direct evidence adduced by plaintiffs tending to establish 
service to interstate travelers was the testimony o f their witness, Sharon

A . Miles, a white woman who entered “ Little Joe’s Sandwich Shop”  on 
April 2, 1966 and obtained service without any question. Upon cross- 
examination she admitted that she and her husband who is the Columbia 
Director for the South Carolina Board of Voter Education Project had 
resided in this state for one and one-half years. Apparently plaintiffs 
made no attempt to conduct any surveys at defendant’s drive-in establish­
ments to show that customers in out-of-state automobiles were actually 
being served at any o f defendant’s locations.

Opinion and Order of District Court



22a

7. Several employees of wholesale food companies which 
regularly sell foodstuffs and other merchandise to Piggie 
Park testified that the bulk of the food and related prod­
ucts sold by their firms to defendant was and is obtained 
by them from producers and suppliers beyond the State of 
South Carolina as follows:

(a) Greenwood Packing Company, a large supplier 
of meat products, purchases two-thirds of its merchan­
dise from suppliers outside of South Carolina. They 
sell primarily pork shoulders, spareribs and Boston 
Butt (a cut off the shoulder). All hogs are live when 
purchased by it. They are thereafter slaughtered, cut­
up, processed and packed within the State of South 
Carolina. Its total sales to defendant during the fiscal 
year 1964-65 was $39,663.91 and $15,148.24 from June 
1 through December 12, 1965. Its sales to defendant 
are made without keeping records to indicate which of 
its meat is produced or slaughtered in South Carolina 
as contrasted to that which is purchased by it from out- 
of-state already processed and ready for sale to de­
fendant.

(b) Dreher Packing Company of Columbia, South 
Carolina, a wholesale distributor of luncheon meats, 
pork sausage, beef and ground beef patties regularly 
sells meat products to defendant. Approximately 
eighty percent of the meat products sold by it to 
Piggie Park is acquired from suppliers from outside 
of South Carolina, and no records are maintained to 
distinguish the in-state from the out-of-state items. 
However, all of its meat products is processed in 
some manner by it within the state before sale and

Opinion and Order of District Court



23a

delivery to defendant. It considers defendant as one 
of its good customers.

(c) Holly Farms Poultry Industry, which secures 
eighty-five percent to ninety percent of its chickens 
from a North Carolina supplier, sells a small quantity 
of meat each month to defendant.

(d) Piggie Park no longer sells beer at any of its 
locations, its licenses having expired in June 1965. 
Prior to that time substantial quantities of beer were 
purchased from Schafer Distributing Company of 
Columbia, none of which was brewed in South Caro­
lina. It also purchased beer from Acme Distributing 
Company, distributors of Pabst Blue Ribbon beer 
which was shipped into the state from Peoria, Illinois.

(e) Defendant purchases pepsi-cola syrup by the 
gallon from Pepsi-Cola Bottling Company of Colum­
bia. The ingredients which go into this syrup are 
shipped into South Carolina from New York, Ken­
tucky and Georgia. During 1965 defendant purchased 
1,374 gallons of the syrup at $2.75 per gallon, includ­
ing tax.

(f) Defendant regularly buys fresh, frozen and 
canned foods from Pearce-Young-Angel of Columbia, 
a large wholesaler. With the exception of its eggs all 
items regularly sold to defendant, including limes, 
onions, beef patties, cabbage, lettuce, tomatoes, french 
fried potatoes, bell peppers, shrimp and cheese are 
produced out of South Carolina. Defendant’s pur­
chases from this firm during the fiscal year 1964-65 
amounted to $41,255.45, most of which had moved into 
the state in commerce.

Opinion and Order of District Court



24a

(g) Thomas and Howard Company of Columbia, a 
large wholesale distributor of food and related prod­
ucts, regularly sells merchandise to defendant such 
as coca-cola syrup, sugar and salt. Altogether it 
handles approximately 7,000 items with about sixty 
percent or more being food items, mostly produced or 
manufactured in states other than South Carolina. 
Thus a large quantity and variety of the products 
purchased by defendant from this company have 
moved in commerce. Although only about sixty per­
cent of the items purchased from it are foodstuffs 
the remaining forty percent of the items as herein 
enumerated are necessary and related to either the 
preparation of defendant’s food for sale or its service 
of same.

(h) Epes-Fitzgerald Company sells to defendant 
paper products consisting of cups, plates, napkins, 
waxed paper, paper bags and boxes. Of these items 
all are manufactured outside of South Carolina except 
the paper cups and the paper boxes.

(i) Trusdale Wholesale Meat Company of Columbia 
sold a substantial quantity of meat products to de­
fendant up until August 1965. Since that time they 
have made no sales to the defendant. This supplier 
received less than five percent of its products from 
outside of South Carolina.

(j) Roddey Packing Company of Columbia also 
supplies meat products to defendant. Approximately 
twenty percent of its hogs are purchased live out-of- 
state and then slaughtered and processed in South 
Carolina before sale to its customers.

Opinion and Order of District Court



25a

(k) Southeastern Poultry Company of Columbia is 
another supplier of chickens to defendant. All of its 
chickens are grown and processed in South Carolina. 
During 1964 its sales to defendant totalled $6,895.82 
and in 1965 totalled $13,757.48.

8. Mrs. Merle Brigman, defendant’s bookkeeper and 
chief buyer of its merchandise, testified that she had made 
a compilation from defendant’s records which she keeps 
to determine what percentage of food served by defen­
dant was either produced, grown or processed in South 
Carolina. In arriving at her percentages she did not in­
clude as out-of-state foods such items as live hogs and 
cows purchased out-of-state by their suppliers when 
slaughtering or any processing were done in the state 
prior to delivery to defendant. Neither did she include 
pepsi-cola syrup concentrate purchased from the Pepsi­
Cola Bottling Company as an out-of-state product since 
it was mixed and processed within the state. Not included 
in her percentages were any of the ancillary or related 
items purchased by defendant’s suppliers from out-of-state 
such as salt, sugar, paper products, spices, etc. She con­
cluded that twenty-five percent of the “ food” purchased 
by defendant during fiscal years 1963-64 and 1964-65 was 
“processed and/or manufactured” outside of South Caro­
lina, and seventy-five percent was produced and/or manu­
factured into “ food” within South Carolina. She further 
testified that eighteen percent of defendant’s “ food” pur­
chased during the period of June 1, 1965 through Decem­
ber 12, 1965 was “ processed and/or manufactured” into 
“ food” out-of-state.7 Defendant’s bookkeeper also testified

7 See defendant’s Exhibit “E ” , witness’s compilation of in-state and out- 
of-state foods.

Opinion and Order of District Court



26a

that defendant’s expenditures for food and related items 
for fiscal year 1963-64 totaled $240,565.58 and for fiscal 
year 1964-65 totaled $222,845.25. Its expenditures for 
May 31, 1965 through December 12, 1965 were $122,724.13.

Considering defendant’s admission that from eighteen 
percent to twenty-five percent of its “ food” in a finished 
and ready-for-use form for the years 1963 through 1965 
moved in commerce into the state from another state; also 
the large quantities of live cattle, hogs and chickens pur­
chased by defendant’s suppliers from outside of the State 
and slaughtered and processed within the State before 
delivery to defendant, which were not included by defen­
dant in its out-of-state percentages, along with other food­
stuffs purchased by it which were shipped into the State 
and processed herein, together with such related items as 
sugar, salt, pepper, spices and sauces which admittedly 
moved in commerce, it is obvious that considerably more 
than twenty-five percent of the total food products served 
by defendant came from outside of the State. The court 
is persuaded and therefore finds that at least forty per­
cent of the food served by defendant during the years in 
question “moved in commerce” .

Conclusions of L aw

By Section 2000a(c) Congress has determined that an 
establishment described in paragraph (2) of Subsection 
(b) of Section 2000a affects commerce within the meaning 
of the public accommodations subchapter of the Act if 
“ it serves or offers to serve interstate travelers or a sub­
stantial portion of the food which it serves * * * , has 
moved in commerce” . As was stated by the Three-Judge

Opinion and Order of District Court



27a

Court in Willis v. Pickrick Restaurant, 231 F.Supp. 396 at 
page 399 (N.D. Ga. 1964):

“ [T]he application of the Civil Rights Act to these 
defendants depends upon the resolution of issues of 
fact, for a restaurant is not brought within the defi­
nition of interstate commerce unless it meets one of 
the tests enumerated in subparagraph (c) of Section 
201. These tests are in the alternative. Either it must 
serve or offer to serve interstate travelers, or a sub­
stantial portion of the food which it serves or other 
products which it sells must have moved in interstate 
commerce.”  (Emphasis added.)

Moreover, the Supreme Court in McClung, supra, in up­
holding the constitutionality of the public accommodations 
section of the Act indicated that Congress has made suffi­
cient findings of discrimination to be conclusive and acted 
within its constitutional right granted by the Commerce 
Clause of the United States Constitution. Thus it is not 
necessary in this or any other individual case to deter­
mine that defendant’s acts in actuality affect commerce 
in and of itself; but it is necessary to determine whether 
defendant in the operation of its eating establishments 
serves a substantial portion of food which has moved in 
interstate commerce, or whether it serves or offers to 
serve interstate travelers. I f it is determined that defen­
dant’s establishments meet either of these tests in the 
alternative, then under the Act they affect commerce.

Has a substantial portion of the food which defendant 
serves in its six eating establishments moved in inter­
state commerce? In line with the factual determinations

Opinion and Order of District Court



28a

hereinabove arrived at the answer is yes. Although the 
Act does not specifically define “ substantial” the court 
construes it in the light of its usual and customary mean­
ing : That is, something of real worth and importance; of 
considerable value; valuable; something worthwhile as 
distinguished from something without value or merely 
nominal.8

Under defendant’s own admission that twenty-five per­
cent of the foods it served in the years 1963-64 and 1964- 
65 and eighteen percent for the first six months of fiscal 
1965-66 moved in commerce, the court has no hesitancy in 
concluding as a matter of fact and law that a “ substantial” 
portion of the food which it serves has moved in inter­
state commerce.

Neither can the court agree with defendant’s contention 
that all foodstuffs, including hogs, beef and chickens, to­
gether with other related items, which are slaughtered or 
processed within the State after having been shipped in 
from another state, should be considered as in-state goods 
which have not moved in commerce on the basis that they 
came to rest in this state and thereby became intrastate 
in character. Such contention was overruled by McClung, 
supra, 379 U.S. at page 302, 85 S.Ct. at page 383 where the 
Court stated:

“Nor are the cases holding that interstate commerce 
ends when goods come to rest in the State of destina­
tion apposite here. That line of cases has been ap­
plied with reference to state taxation or regulation 
but not in the field of federal regulation.”

8 Definition of “ substantial” contained in Black’s Law Dictionary, Fourth 
Edition, 1951.

Opinion and Order of District Court



29a

From the foregoing this court has a mandate from 
the Supreme Court to conclude that all products sold to 
defendant as food by its producers which have moved in 
interstate commerce into this state in some form, even 
though they may have been slaughtered or othenvise proc­
essed after arrival here, are to be considered as food which 
has moved in commerce, as that phrase is used in Section 
2000a(c) (2) of the Act. Therefore, by including all food­
stuffs served by the defendant during the periods under 
consideration which have moved in interstate commerce 
the court has concluded that at least forty percent of the 
same has moved in commerce and unquestionably consti­
tutes a “ substantial” portion of the total food which it 
serves in all of its six locations.

Does the defendant serve or offer to serve interstate 
travelers? As hereinabove pointed out, the direct evi­
dence produced by plaintiffs that defendant serves or 
offers to serve interstate travelers is slight, unimpressive 
and inconclusive; however, from all the circumstances be­
fore the court there is no doubt but that defendant has 
served and is serving interstate travelers. This is appar­
ent from the testimony of a witness who testified that upon 
presenting herself for service at “Little Joe’s Sandwich 
Shop” no inquiry whatever w?as made as to her place of 
residence. Probably of more import is the fact that all 
five of defendant’s drive-ins are located upon much trav­
eled interstate and federal highways with large signs at 
and about each location advertising its products. Defen­
dant also advertises for business in daily newspapers and 
over the radio. Moreover, it employs no reasonably effec­
tive means of determining whether its customers are inter-

Opinion and Order of District Court



30a

or intra-state travelers. The court, therefore, concludes 
that defendant serves or offers to serve interstate travel­
ers at all of its locations.

Having concluded that all of defendant’s establishments 
“affect commerce” within the provisions of Section 2000a 
(c) (2) of the Act, the third and last question for deter­
mination arises from the construction to be given to sub­
section (b) (2) of said section of the Act which provides 
that “ any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in 
selling food for consumption on the premises” [emphasis 
added] is a place of public accommodation within the 
meaning of the Act.

Do defendants’ drive-ins and sandwich shop come within 
the ambit of the Act as intended by Congress? The court 
has no difficulty in deciding that “Little Joe’s Sandwich 
Shop” is within the coverage of the Act. It comes within 
the usual and customary definition of a restaurant, lunch­
room, lunch counter, or other eating establishment mainly 
engaged in serving food for on-the-premises consump­
tion. It caters to walk-in customers who are furnished 
tables and chairs, including a balcony, where they may, 
and generally do, sit down and consume their orders 
within the building. Its facilities, operation, and clientele 
are entirely different to those of the five drive-ins, which 
have no such accommodations for diners to walk into 
buildings to be served and to eat inside. They cater entirely 
to motorized customers who do not alight from their auto­
mobiles to order or eat, whose orders are served in dis­
posable containers, and fifty percent of all foods served 
to them is consumed off the premises.

Opinion and Order of District Court



31a

By limiting the scope of places of public accommoda­
tion to restaurants, cafeterias, lunchrooms, soda foun­
tains, and other facilities principally engaged in serving 
food for consumption on the premises, it is only reason­
able to assume that Congress did not intend to include 
within coverage of the Act such eating places as defendant’s 
drive-ins, which do not in the main provide its patrons 
with facilities to be seated so that their orders may be 
and generally are eaten on the premises. None of the 
reported cases dealing with eating houses has considered 
this aspect of the Act. Both McClung and Pickrick Res­
taurant, supra, involved conventional type restaurants 
which served their customers while seated at tables and 
who consumed the food entirely on the premises. Surely 
if Congress had intended to include within the public 
accommodations provisions of the Act all public eating 
establishments which it determined “affect commerce” if 
they meet either of the alternate tests of Section 2000(a) 
(c) (2), then its including in Subsection (b) (2) of said 
Section the phrase “ or other facility principally engaged 
in selling food for consumption on the premises” would 
be totally futile and meaningless. Our review of the Act’s 
legislative history, committee reports, and congressional 
debates has failed to indicate a contrary motivation. The 
court must assume from its verbiage that Congress in­
tended to limit the coverage of the Act to those eating 
places primarily engaged in serving food for on-the- 
premises consumption.9

Opinion and Order of District Court

9 Whether “principally engaged in the sale o f food for consumption on 
the premises” qualifies “ any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain” or only “other facility”  has opposing persuasions.



32a

Indeed this court has no motive, intent or purpose to 
extend by judicial fiat any of the provisions of the Civil 
Rights Act of 1964 beyond the scope clearly enunciated 
and adopted by Congress.

Although it has been stated that the term restaurant 
has no definite legal meaning unless defined by statute, 
Congress was well aware that an eating place or a restau­
rant in the generally accepted sense is defined as follows: 
“A public place where food is sold casual guests to be 
eaten upon the premises; a house where cooked provisions 
are sold, to be eaten on the premises; a house where food 
is sold to customers; a place of resort for meals” . 28 C.J.S. 
pp. 825-826. In State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 
9 A.L.R. 426 (1920), the Supreme Court of North Carolina 
in applying a Sunday law stated:

“The terms ‘restaurant’ and ‘cafe,’ in common par­
lance * * * are substantially synonymous. A restau­
rant is generally understood to be a place where re­
freshments, food, and drink are served * * * While

Opinion and Order of District Court

The House Report of the Committee on the Judiciary, 2 U .S . Cong. & 
Admin. News 1964, pp. 2391, 2395 reads as follow s:

“Section 201(b) defines certain establishments to be places of public 
accommodation if  their operations affect commerce 0 6 9  These estab­
lishments are * * * (2) restaurants, lunch counters, and similar es­
tablishments, including those located in a retail store; and gasoline 
stations.” (Emphasis added.) By this statement the inference could 
be drawn that the disjunctive “ or” in Section 2 0 1 (b ), as enacted, 
limited the qualifying phrase to “ other facility” . In  other words, 
“ or other facility principally engaged in selling food for consumption 
on the premises”  means only “and similar establishments” . The 
court, however, is persuaded in that “ other” as used in its primary 
sense of “ one of two or more”  requires the qualifying phrase to be 
read with “ any restaurant, cafeteria, lunchroom, lunch counter, soda 
fountain” or at least required to be used to define “restaurant, lunch­
room, lunch counter, soda fountain.”



33a

the word ‘restaurant’ has no strictly defined meaning, 
it seems to be used indiscriminately as a name for 
all places where refreshments can he had, from a mere 
eating house and cookshop to any other place where 
eatables are furnished to be consumed on the prem­
ises.”  (Emphasis added.) See also the annotation in 
122 A.L.R. page 1399.

Even if defendant’s drive-ins were found to be restau­
rants or eating places within the popular and usual defini­
tion, they should not he considered as facilities “prin­
cipally engaged in selling food for consumption on the 
premises” . The adverb “principally” is defined as “pri­
marily; chiefly, mainly, in the principal manner, in the 
chief place or degree” . Webster’s International Dictionary, 
Second Edition. Under the plain meaning of the phrase 
one who serves fifty percent or less of its food which is 
taken away and eaten off the premises cannot be held to 
be principally engaged in selling food for consumption on 
the premises. The uncontradicted evidence before the 
court is that only fifty percent of the food served at de­
fendant’s drive-ins is consumed off the premises, and all 
of its patrons are encouraged to take their orders elsewhere 
for consumption.

The court therefore concludes that defendant’s five drive- 
in establishments are not principally engaged in serving 
food for on the premises consumption, and are not places 
of public accommodation within the meaning and purview 
of the Civil Rights Act of 1964; thus, plaintiffs are not 
entitled to the demanded relief as to them. On the other 
hand it is concluded that “Little Joe’s Sandwich Shop” is 
principally engaged in selling food for consumption on 
the premises, and is therefore a place of public accommo­

Opinion and Order of District Court



34a

dation with the Act. As to it, plaintiffs have established 
their right to the requested relief. It is, therefore,

Ordered that an injunction will issue in the following 
terms:

(a) The defendants, Piggie Park Enterprises, Inc., and 
L. Maurice Bessinger, their agents, employees, successors, 
and all persons acting in concert with them, and at their 
direction, are enjoined from refusing to admit Negroes 
to the premises of Piggie Park No. 7, also known as 
“Little Joe’s Sandwich Shop” , located at 1430 Main Street, 
Columbia, South Carolina, upon the same basis and upon 
the same conditions that non-Negro members of the gen­
eral public are admitted to said establishment;

(b) They ars also enjoined from failing or refusing to 
sell food, meals, or other merchandise and to provide 
services, facilities, privileges, advantages and accommo­
dations to Negro patrons at said establishment upon the 
same basis and upon the same conditions that they are 
made available to patrons and customers of other races.

In order that the defendants may have an opportunity 
to appeal, and if they so desire to seek a stay of this 
order until such appeal is consummated, it is ordered 
that the foregoing injunction shall become effective thirty 
days from the date hereof, to wit, on the 27th day of 
August, 1966. Court costs exclusive of attorneys’ fees are 
hereby awarded to plaintiffs. Let judgment be entered 
accordingly.

Opinion and Order of District Court



MEIIEN PRESS INC. —  N. Y. C. 2)9