Hawkins v. Town of Shaw, MS Appellants' Supplemental Brief on Rehearing En Banc

    TRANSCRIPT OF RECORD

Supreme C ourt of the U nited States
OCTOBER TERM, 1964

HEART OF ATLANTA MOTEL, INC, A GEORGIA 
CORPORATION, PLAINTIFF,

vs.

THE UNITED STATES OF AMERICA AND ROBERT 
F. KENNEDY AS THE ATTORNEY GENERAL OF 
THE UNITED STATES OF AMERICA.



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1964

HEART OF ATLANTA MOTEL, INC., A GEORGIA 
CORPORATION, PLAINTIFF,

vs.

THE UNITED STATES OF AMERICA AND ROBERT 
F. KENNEDY AS THE ATTORNEY GENERAL OF 
THE UNITED STATES OF AMERICA.

I N D E X

Record from the United States District Court for 
the Northern District of Georgia, Atlanta Divi­
sion
Docket entries _____________________________
Complaint for declaratory judgment _________
Order to show cause ____________________ _
Summons and return ______________________
Amendment to complaint for declaratory judg­

ment ___________________________________
Order allowing amendment to complaint _____
Plaintiff’s statement of issues ______________
Stipulation of facts ________________________
Defendants’ notice of motion and motion for pre­

liminary injunction ______________________
Defendants’ notice of motion and motion to dis­

miss ____________________________________
Certificate and request for three-judge court __
Answer and counterclaims __________________
Answer to counterclaims and response to motion

for preliminary injunction ________________
Motion to dismiss second counterclaim and order 

allowing ________________________________

Original Print

1 1
4 5

11 10
12 11

13 13
15 15
17 15
20 17

22 18

25 19
27 20
28 21

34 24

39 27

Record P ress, P rinters, New  York, N. Y., A ugust 26, 1964



11 INDEX

Original Print
Record from the United States District Court for 

the Northern District of Georgia, Atlanta Divi­
sion—Continued
Transcript of proceedings, July 17, 1964______  42 29

Appearances ____________________________  42 29
Stipulation of counsel ___________________  48 32
Testimony of Albert Richard Sam pson-

direct -----------------------  49 33
cross ------------------------- 53 35

Charles Edward Wells—•
direct _______________  56 37
cross ------------------------- 59 39

Argument on behalf of plaintiff by Mr. Rolles-
ton -----------------------------------------------------  62 41

Argument on behalf of defendant by Mr. Mar­
shall ______________    86 56

Closing argument on behalf of plaintiff by Mr.
Rolleston _____________________________  110 71

Reporter’s certificate (omitted in printing) ___  114 73
Opinion of the Court and order ____________ 115 74
Permanent injunction ______________________  121 79
Notice of appeal___________________________  123 80
Amended notice of appeal __________________  125 81
Amendment to notice of appeal as amended____  130 84
Clerk’s certificate (omitted in printing) ______  132 84



1

[fol. 1]
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF GEORGIA
3-Judge Case 

9017
(Tuttle, Hooper & Morgan)

Jury Trial Demanded 
Docket Closed

H eart oe A tlanta  M o tel , Inc., a Georgia Corporation,
vs.

T h e  U n ited  S tates of A m erica  and R obert F. K e n n e d y , 
as the Attorney General of the United States of America.

Basis of action:
Complaint for declaratory judgment, for temporary 
and permanent injunction—Civil Rights Act of 1964 

Jury trial claimed by Plaintiff on July 7, 1964
For Plaintiff:

Moreton Rolleston, Jr.
1103 C & S Nat’l Bk Bldg.
Atlanta, Ga. 30303 
(JA 3-1566)

For Defendant:
Chas. L. Goodson, U'.S. Atty.
Robert F. Kennedy, Atty. Gen.
Burke Marshall, Asst. Atty. Gen.
St. John Barrett, Atty.,

Depart, of Justice

J.S. 5 Card—7-2-64 
J.S. 6 Card—7-22-64

7-22-64 Opinion denying complaint and issuing injunction 
in favor of deft.



2

[fol. 2]
D ocket  E n tr ies

utjry T bial  D em anded  
Closed

DATE EILIN GS---PROCEEDINGS
July 2, 1964 Complaint filed.
July 6, 1964 Summons issued and delivered to U.S. 

Marshal.
July 6, 1964 Order that defendant Robert F . Kennedy 

show cause on 7-17-64 at 10 :00 A.M., filed. 
Served with complaint. Notice to JSW.

July 6, 1964 Per FAH, set for hearing on Friday, July 
17, 1964 at 10:00 A.M., counsel and par­
ties advised by notice.

July 7, 1964 Letter to Judge Hooper advising this is a
three judge case. (Per Judge Tuttle)

Order of Hon. Elbert P. Tuttle, Chief 
Judge of the Fifth Circuit, U.S.C.A., 
designating three judge court composed 
of Judges Tuttle, and Hooper and Mor­
gan, U.S. District Judges—filed. Copy of 
order and complaint to three judges.

Pltf’s. D em a n d  fo e  J ury  T bial— filed. 
Copy to 3 judges.

July 8, 1964 Marshal’s return on service of complaint 
executed 7-7-64 as to both defts., filed.

July 10,1964 Defts.’notice of motion and motion for pre­
liminary injunction, notice of motion and 
motion to dismiss, with memorandum of 
points and authorities in support of 
above two motions; certificate and re­
quest for three-judge court; A n sw e r , in­
cluding first and second counterclaims— 
filed. Marshal’s return of service of



B

DATE FILIN G S----PROCEEDINGS

above notice, 2 motions, certificate and 
answer on pltf.—filed. (Copy of above 
to 3 judges)

Order that each party herein file with 
Clerk before 4:30 P.M. on 7-15-64 a brief 
statement containing such party’s under­
standing of the issues of fact that will be 
involved in hearing for injunction set for 
9:30 A.M. 7-17-64; suggesting that deft, 
file response to motion for injunction at 
same time—filed. Copy to counsel. Copy 
to 3 judges.

July 15, 1964 Statement of issues of fact by defts., pur­
suant to order of 7-10-64—filed. Copy 
to 3 judges.

Motion of clefts, to dismiss S econd  C o u n ­
terclaim  in its answer—filed. To FAH 
by counsel (Milano) for order.

Amendment to complaint, and order allow­
ing same, subject to objections—filed. 
Copy to 3 judges.

Pltf’s. answer to counterclaims and re­
sponse to motion for preliminary injunc­
tion—filed. Copy to 3 judges.

Pltf’s. statement of issues, pursuant to or­
der of 7-10-64—filed. Copy to 3 judges.

July 16, 1964 Order by Judges Tuttle, Hooper and Mor­
gan allowing defts. to withdraw second 
counterclaim and Paragraph (c) of its 
prayer for relief—filed. Copy to coun­
sel. Copy to 3 judges.

Brief of pltf. in support of complaint and 
prayers and in opposition to defts.’ mo­
tion to dismiss complaint—filed, (copy 
to 3 judges by Mr. Rolleston).

July 27, 1964 Came on for hearing pursuant to Rule Nisi 
on preliminary injunction. Stipulation 
of facts, filed. Memo of law of the deft.,



4

DATE

July 20, 1964 

July 22, 1964 

July 22, 1964

[fol. 3]
July 22, 1964 

July 23, 1964

July 24, 1964 

July 30, 1964 

July 31, 1964

filed. Court took the matter under con­
sideration for a permanent injunction.

Supplemental statement of plaintiff, filed. 
(Copy to 3 judges by plft)

Deft’s supplemental memorandum of law, 
filed. Copy to 3 judges.

Opinion of court and order enjoining plfts. 
from refusing to accept Negroes as guests 
in the motel by reason of their race and 
make available the goods, services, facili­
ties, privileges and advantages to the 
guests of the motel; the injunction shall 
become effective 20 days from hereof, to- 
wit, August 11,1964, filed.

Plaintiff’s notice of appeal, filed. Copies to 
counsel and Supreme Court.

Order that plft. is enjoined from refusing 
to accept Negroes as guests and making 
any distinction upon the basis of race or 
color in the availability of goods, ser­
vices, facilities, privileges, advantages or 
accommodations offered or made avail­
able to the guests; this injunction shall 
become effective 20 days from 7-22-64, 
to-wit, 8-11-64, filed. Copies to counsel.

Transcript of proceedings of July 17, 1964, 
filed.

Plaintiff’s amended notice of appeal, filed. 
Copy to counsel.

Amendment to notice of appeal as 
amended, filed. Copy to counsel.

PILINGS----PROCEEDINGS



5

Aug. 12, 1964 Certified copy of opinion rendered 8-10-64 
by Mr. Justice Black denying applica­
tions for stay—received.

A T r u e  Cer tified  C opy

August 12,1964
B. G. N a s h , Clerk
By: S am m y  G odsey 

Deputy Clerk
(Seal)

[fol. 4] [Handwritten notation—Filed in Clerk’s Office 
July 2nd, 1964. 8.55 P.M. by B. G. Nash, Clerk]

I n t h e  U n it e d  S tates D istr ic t  C ourt

F or t h e  N o r th er n  D istr ic t  of G eorgia

A tlanta  D iv isio n

Civil Action No. 9017

DATE FIL IN G S— PROCEEDINGS

H eart of A tlanta  M otel , I n c ., a Georgia 
Corporation, Plaintiff,

vs.
T h e  U n it e d  S tates of A m erica  and R obert F. K e n n e d y , 

as the Attorney General of the United States of Amer­
ica, Defendants.

C o m pla in t  for D eclaratory J u d g m en t— Filed July 2, 1964 
Jurisdiction and Venue

1. Plaintiff is a Georgia Corporation whose only place 
of business is in Fulton County, State of Georgia. This 
action is for a declaratory judgment pursuant to the pro­
visions of the Declaratory Judgment Act set forth in 28 
UiSCA Sections 2201 and 2202. This is also an action seek­
ing a temporary and permanent injunction to prevent the 
Attorney General from exercising the powers granted unto



6

him under Section 2004 of the Revised Statutes (42 U.S.C. 
1971), as amended in 1957 and 1960 and as further amended 
by the “Civil Rights Act of 1964”, Section 206 (a).

Nature of Plaintiff’s Business
2. Plaintiff corporation owns and operates a motel which 

has facilities for sleeping, eating, drinking, swimming and 
other activities usually carried on in a motel. The name of 
said motel is Heart of Atlanta Motel and it is located in 
the city block bounded by Courtland Street, Harris Street, 
[fol. 5] Piedmont Avenue and Baker Street in Fulton 
County, Atlanta, Georgia. Plaintiff corporation operates 
no other business except at this location and owns all of 
the land on which said motel is built. Said motel’s activity 
is so intermingled with wholly local business and so essen­
tially local in character as to be outside the stream of in­
terstate commerce.

3. Heart of Atlanta Motel rents sleeping accommoda­
tions to persons desiring them. Some of the guests of 
Heart of Atlanta Motel live in Georgia and rent sleeping 
accommodations from said motel when they come to At­
lanta. Some of the guests of Heart of Atlanta Motel live 
in other states and rent sleeping accommodations from 
said motel when they visit Atlanta.

4. When Heart of Atlanta Motel rents sleeping accom­
modations to a guest who has come from another state, 
that guest has literally and legally “come to rest” ; Ms 
interstate movement is completed by the time he reaches 
the premises of the Motel; and he has ceased to be in the 
stream of interstate commerce when he crosses the threshold 
of Heart of Atlanta Motel.

5. Heart of Atlanta Motel has refused and intends to 
refuse to rent sleeping accommodations to persons desiring 
said accommodations, for several different reasons, one of 
which is based on the ground of race, unless ordered by 
this Court to comply with the provisions of the Civil Rights 
Act of 1964.



7

Controversy
6, Heart of Atlanta Motel has never rented sleeping 

accommodations to members of the Negro race, is not now 
renting sleeping accommodations to members of the Negro 
[fol. 6] race and does not intend to do so unless ordered 
by this Court to comply with the provisions of the Civil 
Rights Act of 1964. Plaintiff contends and shows to this 
Court that said Civil Rights Act of 1964 is unconstitu­
tional and that, even if said Civil Rights Act of 1964 be 
held to be constitutional, plaintiff corporation is not en­
gaged in interstate commerce and its operations do not 
affect interstate commerce.

7. Section 206 (a) of said Civil Rights Act of 1964 pro­
vides as follows:

“Whenever the Attorney General has reasonable cause 
to believe that any person or group of persons is en­
gaged in a pattern or practice of resistance to the full 
enjoyment of any of the rights secured by this title, 
and that the pattern or practice is of such a nature 
and is intended to deny the full exercise of the rights 
herein described, the Attorney General may bring a 
civil action in the appropriate district court of the 
United States by filing with it a complaint (1) signed 
by him (or in his absence the Acting Attorney Gen­
eral), (2) setting forth facts pertaining to such pat­
tern or practice, and (3) requesting such preventive 
relief, including an application for a permanent or 
temporary injunction, restraining order or other order 
against the person or persons responsible for such pat­
tern or practice, as he deems necessary to insure the 
full enjoyment of the rights herein described.”

Plaintiff corporation shows to the Court that the Presi­
dent of the United States has stated that the Civil Rights 
Act of 1964 shall be enforced by the United States and 
that unless the Attorney General of the United States, one 
[fol. 7] of the defendants herein, is restrained and enjoined 
from enforcing said unconstitutional act and from inter­
fering with plaintiff’s trade and business, plaintiff cor­
poration will suffer irreparable damages.



_ 8. Before the Civil Rights Act of 1964 became law, plain­
tiff corporation owned the fee simple title to Heart of At­
lanta Motel and the land upon which it is located. Before 
the adoption of said Act, plaintiff corporation operated 
its motel in any way it deemed fit, provided it complied with 
local ordinances and statutes of the State of Georgia per­
taining to the protection of the health of the guests of said 
motel. Before the adoption of said Act, plaintiff corpora­
tion made use of its land in any way it saw fit in its own 
discretion, subject only to local laws pertaining to health 
and pertaining to zoning. Before the adoption of said Act, 
plaintiff corporation picked and chose its guests from 
those people it considered to be compatible with the other 
guests of said motel and excluded Negro guests because 
plaintiff corporation determined that such exclusion was 
in the best interest of plaintiff’s business and was necessary 
to protect plaintiff’s property, trade, profits and reputa­
tion.

9. The Civil Rights Act of 1964 prohibits plaintiff corpo­
ration from exercising and enjoying the full rights inherent 
in the private ownership of private property in that said Act 
prohibits plaintiff corporation from doing now those 
things enumerated hereinabove in paragraph eight which 
it_ had the right to do before said Act became law. Said 
Civil Rights Act of 1964 deprives plaintiff corporation of 
liberty and property without due process of law, in viola­
tion of the Fifth Amendment to The Constitution of the 
United States., Defendant United States of America has 
taken for public use part of the rights of plaintiff corpora­
tion in and to its private property, without any compensa- 
[fol. 8] tion, in violation of the Fifth Amendment to The 
Constitution of the United States, which reads in part as 
follows:

“ • • • nor (shall any person) be deprived of life, liberty 
or property, without due process of law; nor shall 
private property be taken for public use, without just 
compensation.”



9

10. Section 201 (a) of tlie Civil Eights Act of 1964 ap­
propriates and takes for public use by all persons part of 
the private rights of plaintiff corporation in and to its 
private property, the Heart of Atlanta Motel. Said Sec­
tion 201 (a) reads as follows:

“All persons shall be entitled to the full and equal en­
joyment of the goods, services, facilities, privileges, 
advantages, and accommodations of any place of public 
accommodation, as defined in this section, without dis­
crimination or segregation on the ground of race, color, 
religion, or national origin.”

11. The Civil Rights Act of 1964, Section 201 (b) pro­
vides that said Act applies to any motel “if its operations 
affect commerce”. Section 201 (c) defines an establishment 
whose operations affect commerce as being, among other 
types of business, “any motel”. Taking both of said sec­
tions together, said Act declares that the operations of any 
motel affect commerce and in doing so said Act unconstitu­
tionally exceeds the grant to Congress by Article I, Section 
8, Clause 3 of the Constitution of the United States of 
America, which is set forth hereinafter, of the power to 
regulate commerce among the several states, to wit:

“Powers of Congress. The Congress shall have Power.
3. Commerce. To regulate Commerce with foreign Na­
tions, and among the several States, and with the In­
dian Tribes

[fob 9] 12. The value of the liberty taken by the defen­
dant United States of America from plaintiff corporation 
is priceless, but this plaintiff corporation shows that it 
should be compensated in an amount of not less than Ten 
Million ($10,000,000.00) Dollars. The value of the rights 
of plaintiff corporation in and to its private property, 
which have been taken by the United States of America, 
without any compensation, is One Million ($1,000,000.00) 
Dollars.

13. More than ninety-five (95%) percent of all the past 
guests of Heart of Atlanta Motel prefer not to rent sleep­
ing accommodations at said motel if members of the Negro



10

race also rent sleeping accommodations at said motel. A 
majority of the guests at said motel, who account for more 
than fifty (50%) percent of the income to said motel, are 
guests who have previously rented sleeping accommoda­
tions at said motel, said guests being referred to as “re­
peat guests”. Plaintiff corporation shows and contends 
that if the Attorney General of the United States, one of 
the defendants herein, is permitted to enforce the provi­
sions of the Civil Rights Act of 1964 as to the plaintiff 
corporation and its motel, plaintiff corporation will lose a 
large percentage of its customers, income and good will 
and will suffer irreparable damages.

Wherefore, Plaintiff prays and demands:
1. That Robert F. Kennedy, as the Attorney General 

of the United States of America, be temporarily and per­
manently restrained and enjoined from enforcing said Civil 
Rights Act of 1964 against plaintiff corporation, Heart of 
Atlanta Motel, Inc.
[fol. 10] 2. Judgment in the sum of Eleven Million ($11,-
000,000.00) Dollars against the United States of America, 
together with reasonable attorney fees for the prosecution 
of this action, and all costs.

Moreton Rolleston, Jr., 1103 Cit. & Sou. National 
Bank Building, Atlanta, Georgia 30303, JAckson 
3-1566, Attorney for Plaintiff.

[fol. 11] [File endorsement omitted]

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  of G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017 
[Title omitted]

O rder to S h o w  Cause—July 6, 1964
The petition in the above and foregoing complaint hav­

ing been read and considered, it is hereby ordered that



11

(Stfeefe F. Kennedy, as fee Attenney General fen fee 
United Staten ef feffierie&, -be and be is bene-by restrained 
feena eeJerebig fee provisions of the Civil Rights feet of 
1964 against Heart et -A i laiila Motel, fee. ontil feather 
order el feie Heart; and feat) said Robert F. Kennedy, as 
the .Attorney General of the United States of America, is 
hereby ordered to show cause before me on the 17th day of 
July at 10:00 A.M., 1964 why the prayers of the plaintiff 
corporation for permanent injunction should not be granted.

This 6th day of July, 1964.
Frank A. Hoojjer, Judge, United States District 

Court for the Northern District of Georgia.

[fol. 12]
I n  t h e  U n it e d  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istr ic t  of G eorgia 

A tlanta  D iv isio n  

Civil Action File No. 9017

H eart of A tlanta  M otel , I n c ., 
a Georgia Corporation, Plaintiff,

v.
T h e  U n ited  S tates of A m erica  and R obert F. K e n n e d y , 

as the Attorney General of the United States of America, 
Defendants.

S u m m o n s  and Order to S h o w  Cause 

To the above named Defendants:
You are hereby summoned and required to serve upon 

Moreton Rolleston, Jr. plaintiff’s attorney, whose address 
is 1103 C & S National Bank Building, Atlanta, Georgia 
an answer to the complaint which is herewith served upon 
you, within 60 days after service of this summons upon you, 
exclusive of the day of service. If you fail to do so,



12

judgment by default will be taken against you for the relief 
demanded in the complaint.

B. G. Nash, Clerk of Court, Forrest L. Martin, Dep­
uty Clerk.

[Seal of the Court]
Date: July 6th, 1964

Note.—This summons is issued pursuant to Buie 4 of the 
Federal Buies of Civil Procedure.

[fol. 12a]
I hereby certify and return that I have this July 7th, 

1964 mailed by certified mail a copy of the within Summons 
& Complaint and Order to the Attorney General, Wash­
ington, D. C.

W. J. Andrews, U. S. Marshal, By: Bosalie Bich.
Be turn on 'Service of Writ

I hereby certify and return, that on the 7th day of July 
1964, I received this summons and served it together with 
the complaint and order herein as follows:

and on July 7th 1964 I served United States of America 
and Bobert F. Kennedy as the Attorney General of the 
United States of America by handing to and leaving with 
Gus Wood Assistant U. S. Attorney a true copy of the 
within Summons and Complaint and order at his office 
in Federal Bldg., Atlanta, Ga. this 7th day of July 1964.

W. J. Andrews, United States Marshal, By Joe M.
Allen, Deputy United States Marshal.

Marshal’s Fee
Travel .............. $.......
Service ............ 6.00

$6.00
Subscribed and sworn to before me, a ..................... this

..................  day of ....................., 19....
[Seal]



13

[Stamp—Filed in Clerk’s Office, July 8, 1964, B. G. Nash, 
Clerk, By: S G Deputy Clerk]

By: S G Deputy Clerk.
8436

Note.—Affidavit required only if service is made by a 
person other than a United States Marshal or his Deputy.

[fol. 13] [File endorsement omitted]
I n  t h e  U n ited  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  oe G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

H eart of A tlanta  M o tel , I n c ., 
a Georgia corporation, Plaintiff,

vs.
T h e  U n it e d  S tates of A m erica  and R obert F. K e n n e d y , 

as the Attorney General of the United States of America, 
Defendants.

A m e n d m e n t  to C o m pla in t  for D eclaratory J u d g m en t—  
Filed July 15,1964

Now Comes Heart of Atlanta Motel, Inc., the corporate 
plaintiff in the above styled case, and with leave of Court 
having first been obtained, amends its Complaint hereto­
fore filed in the following manner:

1.
By adding the following paragraph which shall be known 

as Paragraph 14, as follows:
The Civil Rights Act of 1964 is unconstitutional in 

that it imposes involuntary servitude upon the cor­
porate plaintiff in violation of the thirteenth amend­
ment to the Constitution of the United States which 
reads as follows:



14

“Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the 
United States, or any place subject to their juris­
diction.”

[fol. 14] 2.
By adding the following paragraph which shall be known 

as Paragraph 15, as follows:
The Civil Bights Act of 1964 is unconstitutional in 

that it deprives the plaintiff corporation of its free­
dom to contract in violation of that portion of the 
Fifth amendment to the Constitution of the United 
States which is quoted hereinabove in paragraph 9 of 
the original complaint.

Wherefore, Plaintiff prays:

1 .

That this amendment be allowed, subject to the objections 
of the defendants.

2.
That the Civil Bights Act of 1964 be declared uncon­

stitutional.
Moreton Bolleston, Jr., 1103 Cit. & Sou. Bank Build­

ing, Atlanta, Georgia 30303, JAckson 3-1566, At­
torney for Plaintiff.



15

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o rth ern  D istr ic t  oe G eorgia 

A tlanta  D ivision  

Civil Action No. 9017

[Title omitted]

Order A llo w in g  A m e n d m e n t  to C o m pla in t—
July 15, 1964

The foregoing amendment to the original Complaint 
filed in the above styled case is hereby allowed, subject to 
the objections of the defendants.

This 15th day of July, 1964.
Frank A. Hooper, Judge, United States District 

Court for the Northern District of Georgia, At­
lanta Division.

[fol. 16] Certificate of Service (omitted in printing).

[fol. 17] [File endorsement omitted]

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  oe G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

P l a in t if f ’s S t a tem en t  of I ssues—Filed July 15, 1964
In response to the Order of this Court, dated July 10, 

1964, that the parties file a brief statement of the issues 
of fact that will be involved in the hearing for injunction 
now set for 9:30 o’clock AM, July 17, 1964, the corporate 
plaintiff respectfully submits the following:

[fol. 15] [File endorsement omitted]



16

The answer of the defendants, by paragraph 3, admitted 
all well pleaded allegations of fact contained in the Com­
plaint, except the following sentence set forth in paragraph 
2 of the complaint:

“Said motel’s activity is so intermingled with wholly 
local ‘business and so essentially local in character 
as to be outside the stream of interstate commerce.”

and the following portion of paragraph 9 of the Complaint:
“Defendant United States of America has taken for 
public use part of the rights of plaintiff corporation 
in and to its private property.”

[fol. 18] 2.
Plaintiff corporation intends to show that there is located 

within the Heart of Atlanta Motel a restaurant, which is 
owned and operated by Interstate Hosts, Inc. whose ad­
dress is 11255 West Olympic Boulevard, Los Angeles 64, 
California, and that it is not the policy and practice of 
this restaurant to refuse to sell food and provide service 
in the restaurant to Negroes because of their race and 
color and that, since the Civil Bights Act of 1964 became 
law, this restaurant has served all Negroes who have asked 
for service. Furthermore, plaintiff corporation intends to 
show that it leases the restaurant space to Interstate Hosts, 
Inc. and has no legal control over whom the restaurant shall 
serve and that it has agreed in principle with Interstate 
Hosts, Inc. that Negroes shall be served in the restaurant.

Moreton Bolleston, Jr., 1103 Citizens & Southern 
Nat’l Bk. Bldg., Atlanta, Georgia 30303, JAckson 
3-1566, Attorney for Plaintiff.

[fol. 19] Certificate of Service (omitted in printing).

1 .



17

I n  t h e  U n ited  S tates D ist e ic t  C ourt 

F oe t h e  N o r th er n  D istr ic t  of G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[fol. 20] [File endorsement omitted]

[Title omitted]

S t ipu l a t io n  of F acts—Filed July 17,1964
It is stipulated by and between the Plaintiff and the 

Defendants that:
1.

Plaintiff owns and operates the Heart of Atlanta Motel 
in Atlanta, Georgia. The motel has 216 rooms for lease or 
hire to transient guests.

2.

Through various national advertising media, including 
magazines having national circulation, the Plaintiff solicits 
patronage for the motel from outside the State of Georgia.

3.
The Plaintiff accepts convention trade from outside the 

State of Georgia.
4.

Approximately 75% of the total number of guests who 
register at the motel are from outside the State of Georgia.

[fol. 21] 5.
Plaintiff maintains over fifty billboards and highway 

signs advertising the motel on highways in Georgia.
Signed: This 16th day of July, 1964, By: Moreton 

Bolleston, Jr., On Behalf of Plaintiff.
Signed: This 16th day of July, 1964, By: St. John 

Barrett, On Behalf of Defendants.



18

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  oe G eorgia 

A tla n ta  D iv isio n  

Civil Action No. 9017

[Title omitted]

D e fe n d a n t s’ N otice  op M otion  and  M otion  por 
P r e l im in a r y  I n ju n c t io n —Filed July 10, 1964

To Heart of Atlanta Motel, Inc., Plaintiff, and Moreten 
Rolleston, Jr., Attorney for Plaintiff:

Please take notice that on July 17, 1964, at 10:00 a.m., or 
as soon thereafter as counsel may be heard, in the court­
room of the United States District Court for the Northern 
District of Georgia in the United States Post Office and 
Courthouse, Atlanta, Georgia, the defendants will move the 
Court for a preliminary injunction, pending the trial upon 
their first and second counterclaims, enjoining the Heart of 
Atlanta Motel, Inc., its successors, officers, attorneys, 
[fol. 23] agents and employees, together with all persons 
in active concert or participation with them, from:

(a) Refusing to accept Negroes as guests in the 
motel by reason of their race or color;

(b) Making any distinction whatever upon the basis 
of race or color in the availability of the goods, ser­
vices, facilities, privileges, advantages or accommoda­
tions offered or made available to the guests of the 
motel or to the general public within or upon any of 
the premises of the Heart of Atlanta Motel; and

(c) Failing or refusing to sell food and meals in the 
restaurant or to provide service to Negroes in the res­
taurant upon the same basis and in the same manner 
as food, meals and service are made available to white 
patrons; and,

[fol. 22] [File endorsement omitted]



19

(d) Otherwise violating in any manner or by any 
means the provision of Title II of the Civil Rights Act 
of 1964 with respect to the operation of the motel or 
of any facilities located within the premises of the 
motel.

This motion will be based upon all of the pleadings and 
other documents on file in this case and upon oral testimony 
and other evidence to be offered at the hearing.

[fol. 24] United States of America and Robert F. 
Kennedy, Attorney General of the United States, 
Defendants, By: Burke Marshall, Assistant At­
torney General, Charles L. Goodson, United States 
Attorney.

[fol. 25] [File endorsement omitted]

I n  t h e  U n it e d  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istrict  of G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

H eart of A tlanta  M otel , I n c ., 
a Georgia Corporation, Plaintiff,

v.
T ile U n ited  S tates of A m erica  and R obert F. K en n ed y , 

as the Attorney General of the United States of America, 
Defendants.

D efe n d a n t s’ N otice of  M otion  and M otion  to 
D ism iss—Filed July 10, 1964

To Heart of Atlanta Motel, Inc., Plaintiff and Moreten 
Rolleston, Jr., Attorney for Plaintiff:

Please take notice that on July 17, 1964, at 10:00 a.m., or 
as soon thereafter as counsel may be heard, in the court­



20

room of the United States District Court for the Northern 
District of Georgia, in the United States Post Office and 
Courthouse, Atlanta, Georgia, the defendants will move 
the Court for an order dismissing the complaint in this 
case upon the following grounds:
[fol. 26] 1. The complaint fails to state facts upon which
relief can he granted.

2. The United States of America has not consented to 
he sued.

3. The Court lacks jurisdiction of a claim against the 
United States in excess of $10,000.

United States of America and Robert P. Kennedy, 
Attorney General of the United States, Defen­
dants, By: Burke Marshall, Assistant Attorney 
General, Charles L. Goodson, United States At­
torney.

[fol. 27] [Pile endorsement omitted]

l x  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  oe Georgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

Cer tific a te  and  R equest  for T h r e e - J udge C ourt—  
Piled July 10,1964

Robert F. Kennedy, Attorney General of the United 
States, requests, pursuant to Section 206(h) of the Civil 
Rights Act of 1964, that a court of three judges be con­
vened to hear and determine the above-captioned case.

The Attorney General of the United States certifies 
that in his opinion the above-captioned case is one of gen­
eral public importance.

Robert F. Kennedy, Attorney General of the United 
States.



21

I n t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  of G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

A n sw er  and C ountercla im s—Filed July 10, 1964
The United States of America and Robert F. Kennedy, 

defendants, answer the complaint as follows:
1. The defendants deny the allegation contained in the 

last sentence of paragraph 2 of the complaint that the ac­
tivity of the Heart of Atlanta Motel is so intermingled 
with solely local business and so essentially local in charac­
ter as to be outside the strain of interstate commerce.

2. The defendants deny the allegation contained in 
paragraph 9 of the complaint that the United States of 
America has taken for public use part of the rights of the 
plaintiff in and to its private property.

3. The defendants admit all other well pleaded al­
legations of fact contained in the complaint.

[fol. 29] First Defense
The complaint fails to state a claim against the defen­

dants upon which relief can be granted.

Second Defense
The United States has not consented to be sued by the 

plaintiff.
Third Defense

This Court lacks jurisdiction to entertain the plaintiff’s 
claim for damages against the United States in excess of 
$10,000.

[fol. 28] [File endorsement omitted]



22

First Counterclaim
The United States of America and Robert F. Kennedy 

allege as a counterclaim against the plaintiff:
1. This counterclaim is asserted by the Attorney Gen­

eral and the United States pursuant to Section 206(a) 
of the Civil Rights Act of 1964 and Rule 13 of the Rules 
of Civil Procedure.

2. This Court has jurisdiction of this counterclaim under 
Section 207(a) of the Civil Rights Act of 1964 and under 
28 U..S.C. 1345.
[fol. 30] 3. The Heart of Atlanta Motel, which is owned
and operated by the plaintiff as alleged in paragraph 2 
of the complaint, provides lodging for transients and has 
over two hundred rooms for rent or hire. It is a place 
of public accommodation within the meaning of Section 
201(b) of the Civil Rights Act of 1964 and its operations 
affect commerce within the meaning of Section 201(c) of 
the Act.

4. Plaintiff has refused, is refusing and has announced 
that, unless enjoined by this Court, it will continue to 
pursue its policy of refusing accommodations in the Heart 
of Atlanta Motel to Negroes on account of their race or 
color.

5. The acts and practices set forth in the preceding para­
graph constitute a pattern and practice of resistance to 
the full enjoyment by Negroes of the right, secured by 
Title II of the Civil Rights Act of 1964, to the full and 
equal enjoyment of the goods, services, facilities, privi­
leges, advantages, and accommodations of the Heart of 
Atlanta Motel, without discrimination or segregation on 
the ground of race or color, and such pattern or practice 
is of such a nature and is intended to deny the full exercise 
of such right.
[fol. 31] Second Counterclaim

The United States of America and Robert F. Kennedy 
allege as a second and further counterclaim against the 
plaintiff:



23

6. The defendants re-allege each of the facts and mat­
ters set forth in paragraphs 1 through 5 of their first 
counterclaim.

7. Physically located within the premises of the Heart 
of Atlanta Motel is a restaurant, owned and operated 
by the plaintiff, which serves the public and holds itself 
out as serving patrons of the Heart of Atlanta Motel.

8. The restaurant described in paragraph 7 herein is 
principally engaged in selling food for consumption on 
its premises and it serves and offers to serve interstate 
travelers and a substantial portion of the food and other 
products which it sells has moved in commerce.

9. The restaurant described in paragraphs 7 and 8 is 
a place of public accommodation within the meaning of Sec­
tion 201(b) of the Civil Eights Act of 1964, and its 
operations affect commerce within the meaning of Sec­
tion 201(c) of the Act.

10. It is the policy and practice of the plaintiff to refuse 
to sell food and provide service in the restaurant to Negroes 
because of their race and color.

11. The acts and practices set forth in the preceding 
paragraph constitute a pattern and practice of resistance 
to the full enjoyment by Negroes of the right, secured 
by Title II of the Civil Eights Act of 1964, to the full 
[fol. 32] and equal enjoyment of the goods, services, facili­
ties, privileges, advantages, and accommodations of the 
Heart of Atlanta Motel, without discrimination or segre­
gation on the ground of race or color, and such pattern or 
practice is of such a nature and is intended to deny the full 
exercise of such right.

Wherefore, the defendants pray that this Court enter 
an order enjoining the Heart of Atlanta Motel, Inc., its 
successors, officers, attorneys, agents and employees, to­
gether with all persons in active concert or participation 
with them, from:

(a) Refusing to accept Negroes as guests in the motel 
by reason of their race or color;

(b) Making any distinction whatever upon the basis of 
race or color in the availability of the goods, services,



24

facilities, privileges, advantages, or accommodations 
offered or made available to the guests of the motel 
or to the general public within or upon any of the 
premises of the Heart of Atlanta Motel;

(c) Failing or refusing to sell food and meals in the 
restaurant or to provide service to Negroes in the 
restaurant upon the same basis and in the same 
manner as food, meals and service are made avail­
able to white patrons; and,

[fol. 33] (d) Otherwise violating in any manner or by 
any means the provision of Title II of the Civil 
Rights Act of 1964 with respect to the operation of 
the motel or of any facilities located within the 
premises of the motel.

Plaintiffs further pray for their costs of suit and for 
such further and additional relief as the interest of jus­
tice may require.

United States of America, and Robert F. Kennedy, 
Attorney General of the United States, Defen­
dants, By: Robert F. Kennedy, Attorney General, 
Burke Marshall, Assistant Attorney General, 
Charles Goodson, United States Attorney, St. 
John Barrett, Attorney, Department of Justice.

[fol. 34] [File endorsement omitted]

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  of G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

A n sw er  to C o u n tercla im s  and R espo n se  to M otion  for 
P r elim in a r y  I n ju n c t io n — Filed July 15, 1964

Heart of Atlanta Motel, Inc., plaintiff, answers the First 
Counterclaim of the defendants as follows:



25

The allegations of paragraphs 1 and 2 of the First 
Counterclaim are denied and plaintiff further shows that 
this honorable Court has already acquired jurisdiction by 
virtue of the Complaint filed by the plaintiff.

2.

Plaintiff denies the allegations of paragraph 3 of the 
First Counterclaim which reads as follows:

“It is a place of public accommodation within the mean­
ing of Section 201(b) of the Civil Eights Act of 1964 
and its operations affect commerce within the meaning 
of Section 201(c) of the Act.”

[fob 35] 3.
Plaintiff denies the allegations contained in paragraph 4 

of the First Counterclaim where it is alleged that “the 
plaintiff is refusing” accommodations to Negroes on ac­
count of their race or color.

1 .

4.
Plaintiff admits the allegations of paragraph 5 of the 

First Counterclaim except the reference to that portion 
of paragraph 4 of said First Counterclaim pertaining to 
“is refusing” and except that plaintiff also denies that 
Title II of the Civil Eights Act of 1964 secures to Negroes 
the right to use any of the goods, services, facilities, privi­
leges, advantages and accommodations of Heart of Atlanta 
Motel. Plaintiff further denies that the restaurant located 
within Heart of Atlanta Motel, if construed to be a facility 
of Heart of Atlanta Motel, is refusing to serve Negroes 
on the grounds of race or color.

Answer to Second Counterclaim
5.

The plaintiff denies the allegations of paragraph 6 of the 
Second Counterclaim in the same manner, and verbatim, 
as it denied the allegations of paragraphs 1, 2, 3, 4 and 5 
of the First Counterclaim.



26

Plaintiff denies that it owns and operates a restaurant 
in Heart of Atlanta Motel and shows to the Court that said 
restaurant is owned and operated, under a lease from plain­
tiff corporation, by Interstate Hosts, Inc., whose address 
is 11255 West Olympic Boulevard, Los Angeles 64, Cali­
fornia.

6.

7.
Plaintiff admits the allegations of paragraph 8 of the 

[fol. 36] Second Counterclaim except it shows to the Court 
that it can neither admit nor deny, for lack of informa­
tion, the following quoted portion of said paragraph 8:

“ . . .  it serves and offers to serve interstate travelers 
and a substantial portion of the food and other prod­
ucts which it sells has moved in commerce.”

8.
Plaintiff denies the allegations of paragraphs 9,10 and 11 

and plaintiff further shows to the Court that said restau­
rant has served all Negroes, being three in number upon 
information and belief, who have applied for service since 
the Civil Eights Act of 1964 became law.

First Defense
The First and Second Counterclaims fail to state a claim 

against the plaintiff upon which relief can be granted in 
that the Civil Eights Act of 1964 is unconstitutional and 
violates the Fifth and Thirteenth Amendments to the 
Constitution of the United States as well as Article I, 
Section 8, Clause 3 of the Constitution of the United States 
of America.

In Eesponse to the Motion for Preliminary Injunction 
Plaintiff Shows to the Court as Follows:

9.
Defendants are entitled to no injunction of any kind 

against the operation of the restaurant in Heart of Atlanta



27

Motel, even if tlie Civil Eights Act of 1964 is constitutional, 
in that the restaurant is not refusing service to Negroes 
and has in fact served Negroes on an equal basis with 
other guests,

[fol. 37] 10.
Defendants are not entitled to a preliminary injunction 

against the plaintiff corporation because the Civil Rights 
Act of 1964, upon which the defendants rely, is uncon­
stitutional.

Wherefore, plaintiff prays:
1.

That the First Counterclaim and the Second Counter­
claim of the defendants be dismissed.

.2.

That the Motion of the defendants for a Preliminary In­
junction be denied.

Moreton Rolleston, .Jr., 1103 Cit. & Sou. Bank Build­
ing, Atlanta, Georgia 30303, JAckson 3-1566, At­
torney for Plaintiff.

[fob 38] Certificate of Service (omitted in printing).

[fob 39] [File endorsement omitted]
I n  t h e  U n it e d  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istr ic t  oe G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017 
[Title omitted]

M otion  to D ism iss  S econd  C o u n tercla im —•
Filed July 15,1964

The United States of America and Robert F. Kennedy 
move to dismiss their second counterclaim in the above en­



28

titled case and to withdraw its prayer for relief in Para­
graph (c) of its answer and counterclaim.

United States of America, and Robert F. Kennedy, 
Attorney General of the United States, Defen­
dants, By: Charles L. Goodson, United States 
Attorney.

[fol. 40] [File endorsement omitted]

Order—Filed July 16, 1964
This Court having read and considered the attached 

motion of the United States of America and Robert F. 
Kennedy to withdraw its second counterclaim and Para­
graph (c) of its prayer for relief, that motion is hereby 
granted and it is Ordered that the second counterclaim of 
the defendants be dismissed.

'This the ......  day of July, 1964.
Elbert P. Tuttle, Frank A. Hooper, Dist. Judge, 

Lewis R. Morgan.
[fol. 41] Certificate of Service (omitted in printing)..



29

[fol. 42]
I n  t h e  U n it e d  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istr ic t  of G eorgia 

A tlanta  D ivision  

Civil Action No. 9017

H eart of A tlanta  M o tel , I n c ., 

vs.
T h e  U n it e d  S tates oe A m erica  and R obert F. K e n n e d y , 
as The Attorney General of The United States of America.

Transcript of Proceedings—Atlanta, Georgia; July 17, 1964
Before Honorable Elbert P. Tuttle, Honorable Frank A. 

Hooper, Honorable Lewis R. Morgan, Judges.

A p p e a r a n c e s :

For the Plaintiff: Moreton Rolleston, Jr., 255 Courtland 
Street, N.E., Atlanta, Georgia.

For the Defendants: Burke Marshall, St. John Barrett, 
Harold Green, Department of Justice, Washington 25, D. C.; 
Charles L. Goodson, U. S. Attorney, Atlanta, Georgia.
[fol. 44] Judge Tuttle: The Court will call two cases this 
morning to get responses as to whether the parties are 
ready to proceed. The first case is Moreton Rolleston, 
Junior—excuse me—-Heart, of Atlanta Motel, Incorporated, 
against The United States and Kennedy, Attorney General. 
Are you ready to proceed?

Mr. Rolleston: Plaintiff’s ready, Your Honor.
Mr. Goodson: If it please the Court, the Attorney Gen­

eral and the Government will be represented in this case by 
Mr. Burke Marshall, the Assistant Attorney General in 
charge of the Civil Rights Division, and Mr. St. John Bar­
rett of the Civil Rights Division of the Justice Department. 

Judge Tuttle: Glad to have you here, Mr. Marshall.
Mr. Marshall: The Government is ready, Your Honnr.



30

Judge Tuttle: The next case set to be heard this morning 
is George Willis, Jr., and others against Pickrick Corpora­
tion and Lester Maddox, and Attorney General of the 
United States, Intervenor. Are you ready for the plaintiffs 
in that case?

Mr. Alexander: The plaintiffs are ready, Your Honor. 
The plaintiffs will be represented by Mr. Jack Greenberg, 
Mrs. Connie Baker Motley and myself, William Alexander.

Mr. Marshall: The intervenors are ready.
Judge Tuttle: The defendant, Pickrick Corporation, 

[fol. 45] Mr. Maddox, represented in Court?
Mr. Schell: Yes, sir.
Judge Tuttle: We were just calling your case, Mr. 

Schell.
Mr. Schell: We’re ready, sir.
Judge Tuttle: For the convenience of the parties and 

counsel, it would appear that there’ll be some element of 
time, some element of delay before the second case is 
reached. I t’s impossible for me to tell now unless—I ’ll call 
on the parties in the first case and maybe they can give me 
an indication. Mr. McRae, we just called the case. I guess 
we were a minute early.

Mr. McRae: Well, we had a little trouble getting in. 
There was a kind of blockade and they were separating the 
wheat from the chaff, so to speak, and—

Judge Tuttle: You mean the lawyers and the parties from 
those who are not in the case?

Mr. McRae: Yes, sir; that’s right. They had a blockade 
out there.

Judge Tuttle: Yes, sir. You are ready for the plaintiff?
Mr. McRae: We are ready, Your Honor.
Judge Tuttle: In the first case, Mr. Rolleston, will you 

give us an estimate of about how long you think it neces­
sary for you to take? Are the facts—
[fol. 46] Mr. Rolleston: Your Honor, the facts have been 
stipulated and I think the government has two witnesses, 
and I don’t anticipate my argument to last over a half hour. 
I have no witnesses.

Judge Tuttle: Right. Mr. Barrett?
Mr. Barrett: I don’t believe that the testimony will take 

more than twenty or thirty minutes, and perhaps twenty



31

minutes for argument. I would say forty-five minutes for 
—to an hour for the government’s case.

Judge Tuttle: Let’s see. That’s 9:30 to 11:30. Counsel’s 
estimates are usually rather optimistic. The Court will run 
through till 12:00 o’clock and take a recess for lunch; and 
then proceed in the second case. The second case may be 
excused until one-thirty.

Mr. Barrett: Thank you, sir.
Mr. McRae: Thank you, sir.
Mr. Greenberg: Excuse me, Your Honor. May we be 

permitted to sit here? Since this is the first case under the 
Act, I think we might—

Judge Tuttle: Oh, yes. Yes.
Mr. Greenberg: —be able to profit by it.
Judge Tuttle: Yes. Of course. You may proceed then 

with the first case. Mr. Rolleston, you are the moving party.
Mr. Rolleston: I did want to inquire of the Court if 

[fob 47] I am the moving party since they had a motion to 
dismiss pending. It doesn’t make any difference to me.

Judge Tuttle: We take it as the Court normally does as 
a motion for preliminary injunction and let the movant for 
the injunction proceed, and then we’ll hear from the other 
side.

Mr. Rolleston: Thank you. If it please the Court, in this 
case the government has filed an answer in which they have 
admitted all of the actual facts pleaded in the complaint. 
They have denied what amounts to two conclusions, legal 
conclusions in the petition, so in view of that admission, we 
have no evidence to offer to the Court at this time.

Mr. Barrett: If the Court please, I have a written—
Judge Tuttle: Excuse me a minute, Mr. Barrett.
Mr. Barrett: Yes, sir.
Judge Tuttle: Of course, this doesn’t go at all to your 

contention to being entitled to damages against the United 
States, does it?

Mr. Rolleston: No, sir; I take it that the real issue before 
the Court—

Judge Tuttle: Yes.
Mr. Rolleston: —is the legal question of the constitu­

tionality.
J udge Tuttle: All right.



32

[fol. 48] S t ipu l a t io n  op C o u n sel

Mr. Barrett: If the Court please, I have a written stip­
ulation that has been entered into by counsel on both sides.

Judge Tuttle: Will you read it in the record or have it 
read in the record, please?

Mr. Barrett: Yes ; if I may.
It is stipulated by and between the plaintiff and the 

defendants that,
One, Plaintiff owns and operates the Heart of Atlanta 

Motel in Atlanta, Georgia. The Motel has 216 rooms for 
lease or hire for transient guests.

Two, Through various national advertising media, in­
cluding magazines having national circulation, the plain­
tiff solicits patronage for the Motel from outside the State 
of Georgia.

Three, Plaintiff accepts convention trade from outside 
the State of Georgia.

Four, Approximately 75% of the total number of guests 
who register at the hotel are from outside the State of 
Gergia.

Five, Plaintiff maintains over fifty billboards and high­
way signs advertising the Motel on highways in Georgia.

If I may, I will file the original with the clerk and pass 
the Court a copy. If the Court please, in view of the 
defendants by reason of the stipulation, the only issue 
[fol. 49] of fact remaining as raised by the pleadings is 
whether or not the plaintiff is refusing accommodations to 
Negroes; and the testimony which we will offer will be 
directed solely to that issue.

Judge Tuttle: I understood that Mr. Rolleston asserted 
that, alleged that in his complaint. Do you conceive that 
there is still an issue of fact with respect to that matter?

Mr. Barrett: Yes, Your Honor. As I understand the 
position of the plaintiff, he concedes that it his purpose to 
refuse accommodations to Negroes; but that he is not refus­
ing and has not refused Negroes on the basis of their race 
since the enactment of the statute. And inasmuch as that 
could have a bearing on whether or not there is a pattern 
or practice of resistance in terms of the Act, we believe 
that evidence is appropriate on that point.

Judge Tuttle: Well, you may put on your evidence.



33

Mr. Barrett: The defendants will call Albert Richard 
Sampson.

Albert R ichard Sampson, having first been duly sworn 
and called as a witness in behalf of the defendants, testified 
as follows:

Direct examination.

By Mr. Barrett:
Q. Would you state your full name, please?

[fob 50] A. Albert Richard Sampson.
Q. Where do you live, Mr. Sampson?
A. 339 Holly Street, Apartment 2-B, Northwest, Atlanta, 

Georgia.
Q. What is your occupation?
A. Executive Secretary of the Atlanta Branch of the 

NAACP; Associate Editor of the ATLANTA ENQUIRER 
NEWSPAPER.

Q. Are you a Negro, Mr. Sampson?
A. Yes, I am.
Q. Mr. Sampson, on July 7th of this year, did you take 

anv steps to make a hotel reservation?
A. Yes, I did.
Q. Would you tell the Court what you did?
A. Well, on July 7tli in the afternoon, I telephoned the 

Heart of Atlanta Motel and made a reservation for Wednes­
day evening commitment. I then drove to South Carolina 
with some friends of mine who had to take a car to the 
Naval Base in Charleston, South Carolina to ship it over­
seas. I left Atlanta that Tuesday evening and I went to 
Charleston. And while in Charleston, I wired twelve dol­
lars and thirty-six cents because the man on the phone told 
me that that’s what the price of the room was. I wired it 
from a Western Union office, twelve dollars and thirty-six 
cents.

Q. Do you have any receipt for that wire?
A. Yes, I do.
Q. May I see it, please ?

[fol. 51] A. From—



34

Mr. Barrett: If—pardon me—if the Court please, may 
this be marked for identification?

Clerk: Respondent’s Exhibit Number 1 marked for iden­
tification is a receipt to Western Union Telegraph Com­
pany.

By Mr. Barrett:
Q. Mr. Sampson, I ’ll show you Respondent’s Exhibit 

Number 1 for identification and ask you if that is the re­
ceipt you received from the Western Union—

A. That’s correct.
Q. —Telegraph Company?
A. Yes; in Charleston, South Carolina.
Q. Did you return—•
A. There was a message on the telegram, “Arriving at 

seven o’clock.”
Q. Did you return to Atlanta?
A. Yes. I flew—
Q. How did you return?
A. I flew in on a Delta Flight 450—I mean at 4 :50, Flight 

620. This is my baggage stub.
Q. Where did you go when you got into the Atlanta Air­

port?
A. I got on a shuttle bus and the shuttle bus took us to 

several hotels, and my ultimate, my final destination was 
the Heart of Atlanta Motel.
[fol. 52] Q. Did you go in?

A. Yes.
Q. Did you go to the desk?
A. That’s correct.
Q. Who was at the desk?
A. A dark haired fellow and a light haired fellow. I 

don’t know their names. I just know that they were at the 
registration desk.

Q. Will you tell the Court what happened when you got 
to the desk, what you said and what the men at the desk 
said?

A. When I got to the desk, I said, “I ’m here for the, for 
the express purpose of getting my room reservation. I 
wired the money ahead of time.” And so they went, and 
they were looking for my wire. Then the dark haired fel­



35

low came out and he said to me, “I’m very sorry; but I 
don’t have your wire.” Meanwhile, the light haired fellow 
was taking someone else’s reservation, and at that time 
I saw my name on the list, and I said, “There’s my name.” 
And the light haired fellow snatched it away. And then 
the dark haired fellow saw the Western Union telegram, 
and at that time he told me that he wouldn’t be able to 
accommodate me because of the fact that they have a suit 
pending before the courts on this basic issue. And I 
pointed out to him that “you don’t have an argument with 
me; you have an argument with the Federal Government, 
[fol. 53] The only thing I know is that I confirmed the res­
ervation you took over the phone, and you have my re­
ceipt.” And at that point, he said, “I ’m very sorry. We 
can’t accommodate you.” And I said, “Will you give me my 
money back?” And he said, “No, I ’m not qualified to give 
you your money back.” He said, “I just can’t give it to you 
over the counter.” And I said, “I’m not leaving until I  get 
it.” I said, “I ’ll have to call the police because of the fact 
I ’ve paid you and I think you should give me my money 
back.” So at that time, this gentleman came in and—

Q. Who do you mean when you say “this gentleman!”
A. Mr. Rolleston. He came in and he pointed out to me— 

he checked both the guest list, my telegram receipt, and he 
took me over to the side and he pointed out to me that they 
had, that he had a suit against the Federal Government on 
this same basic situation and he said that if the courts 
decide for me to open up, I ’ll open up ; but until then, I 
can’t accommodate any Negroes. And at that time, he gave 
me my money back and I left the hotel.

Mr. Barrett: No further questions.

Cross examination.

By Mr. Rolleston:
Q. Mr. Sampson, were you treated in a polite, courteous 

manner when you were there ?
[fol. 54] A. Yes.

Q. When you got there, you talked to two men who were 
in red coats, did you not, who were on the front desk?



36

A. No—one of them had on a red coat. The other one 
did not. The light—the dark skinned fellow had on a red 
coat.

Q. And when I got there, I asked you your name and 
address, did I not?

A. That’s correct.
Q. And what did you tell me?
A. I told you my name was Albert Richard Sampson.
Q. Where did you say you were from?
A. I was from Massachusetts.
Q. But you are from Atlanta ?
A. No, I ’m from Massachusetts.
Q. Well, where do you live in Atlanta?
A. I live at 339 Holly Street. See, I ’m a—1 was a student 

here in Atlanta. Because of financial difficulties, I ’m not 
able to return to school. But my permanent address has 
always been in Massachusetts.

Q. You were born and raised in Massachusetts?
A. Born and raised, and I maintain my permanent ad­

dress there. My voter registration is in Massachusetts.
Q. But you are now living in Atlanta?
A. I reside here in Atlanta.

[fob 55] Q. Was it not also explained to you by myself 
that we had two policies, Number 1, that as a general rule 
we took no people of any kind or class who lived in Atlanta; 
and the other policy which you were explained, that we 
would not take members of the Negro race until this suit 
was disposed of?

A. You—your latter statement is correct ; but your form­
er statement isn’t.

Q. You don’t remember me telling you—
A. No.
Q. —that we didn’t take people from Atlanta ?
A. No, for the simple reason that I didn’t tell you I was 

from Atlanta, because I came in from Charleston, and I 
was from Massachusetts.

Q. But you didn’t tell me you were from Atlanta?
A. You didn’t ask me where I was from.
Q. All right.
A. You asked me where I resided. I am from Massachu­

setts. If you want, I can show you my identification.



37

Q. I just wanted to know where you were from. 
A. Thank you.
Mr. Rolleston: That’s all.
Judge Tuttle: You may step down.
Mr. Barrett: Charles Wells.

[fol. 56] Charles E dward Wells, having first been duly 
sworn and called as a witness in behalf of the defendants, 
testified as follows:

Direct examination.
By Mr. Barrett:

Q. Would you state your full name, please?
A. Charles Edward Wells, Senior.
Q. Where do you live, Reverend Wells ?
A. I live at 1096 Main Street, Macon, Georgia.
Q. Where are you living at the present time? Where 

are you residing?
A. Presently I am residing at 641 Beckwith Street.
Q. In Atlanta?
A. That’s correct.
Q. But Macon is your permanent address, permanent 

residence?
A. That’s correct.
Q. Are you employed?
A. Yes, I am employed.
Q. By whom?
A. I ’m employed by the United States Post Office.
Q. In what capacity ?
A. I ’m employed as a clerk.
Q. Are you also a minister?
A. That’s correct.
Q. What education have you had, Reverend Wells?
A. I ’m a graduate of West Virginia State College, re- 

[fol. 57] ceiving a Bachelor of Arts Degree in Psychology 
and Sociology; presently pursuing a Bachelor of Divinity 
Degree.

Q. Reverend Wells, I ’d like to call your attention to July 
11th of this year and ask you if you went to the Heart of 
Atlanta Motel here in Atlanta on that day?



A. Yes, I did.
Q. Was anyone with yon ?
A. Yes, a minister friend of mine was with me.
Q. What is his name ?
A. The Reverend John H. G-illison.
Q. About what time did yon go to the motel?
A. Approximately one o’clock.
Q. What was your purpose in going there?
A. The purpose for going to the motel was to seek ac­

commodations in the motel; a room.
Q-. Did you go to the desk?
A. Yes, I  did.
Q. Two of you together at that time?
A. That’s correct.
Q. Would you just tell the Court what happened when 

you went to the desk, what you said and what others said 
while you were there?

A. Well, I went to the desk. I believe I approached the 
clerk first. And I asked him if he had any vacancies. He 
told me he would not be able to rent me a room. And I 
asked him why, and I believe he told me that it was the 
[fol. 58] policy of the motel not to rent rooms to Negroes 
until such time as a decision was made on the suit which 
was pending in the Federal Courts. I  then asked to see 
the manager, and asked him the same question. He gave 
me the same answer. At that time, the, I assumed it was 
the owner, appeared and I asked him about the matter and 
he told me that the motel had adopted a policy not to serve 
Negro guests until such time—not to rent rooms to Negro 
guests until such time as a decision was made , on the suit 
that was pending in the Federal Courts. I then asked him 
if he was telling me that he was failing to comply with the 
civil rights law that had been passed, and he told me that 
he wasn’t—he told me that the only thing that he was saying 
is what he had said before, and he repeated that he wasn’t 
renting guests—renting rooms to Negro guests until such 
time as a decision had been made on the suit that was pend­
ing in, in Federal Court.

Q. Have you since learned the name of the person that 
you spoke to on that occasion?



39

A. I believe Ms name is Mr. Morty Eolleston, or some­
thing of that nature.

Q. The plaintiff in this case who is seated here at the 
table ?

A. That’s correct.
Mr. Eolleston: If it please the Court, I would like to 

correct counsel. The plaintiff is a corporation.
Mr. Barrett: Yes. I beg your pardon. Yes.

[fol. 59] Judge Tuttle: You don’t object to his assump­
tion that you are president of the corporation, do you?

Mr. Eolleston: No, sir.
Judge Tuttle: I believe you allege that, don’t you?
Mr. Eolleston: No, sir; I didn’t allege that.
Judge Tuttle: You didn’t allege that.
Mr. Barrett: No further questions.

Cross examination.

By Mr. Eolleston:
Q. Beverend Wells, when you came to the motel, who 

else was with you?
A. I believe I answered that question before. The Bev­

erend John H. Gillison.
Q. And when I was talking to you two gentlemen, were 

you treated courteously and politely?
A. Yes, we were.
Q. Did I not ask each of you your names and addresses 

and write them down on a piece of paper?
A. Yes, you did.
Q. And you gave me your name and address as 1096 

Main Street, Macon; and Beverend Gillison gave his ad­
dress as 671 Beckwith Street, Atlanta?

A. That’s correct.
Q. After I got your names and addresses, isn’t it true 

I told Beverend Gillison that it was a policy of the motel 
[fol. 60] not to accept people in general of any race from 
Atlanta for previous reasons of policy of the motel, and 
that since he said he was from Atlanta, he would be turned 
down on that basis ?



40

A. I don’t believe that was the exact wording of your 
statement.

Q. What did you understand I said?
A. My understanding of what you said was that “as 

far as you are concerned, Reverend Gillison, it’s the policy 
of the motel not to rent rooms to any resident of Atlanta.” 
You didn’t mention the word “race.”

Q. No resident of Atlanta we would rent rooms to?
A. That’s correct.
Q. And I turned him down on the basis of him being a 

resident?
A. That was your—that was the reason you stated.
Q. Now you were turned dowrn on the basis that you 

mentioned, that we had a suit pending in Federal Court 
and we wanted to await the outcome of that suit?

A. That’s the reason you gave.
Q. Now Reverend Wells, how long have you lived in 

Atlanta?
A. How long have I lived where ?
Q. In Atlanta.
A. My home is Macon, Georgia. I ’ve lived in Macon, 

Georgia, for seven years.
Q. I ’ll ask you another way. How long have you worked 

[fol. 61] with the United States Post Offiee Department in 
Atlanta ?

A. I have been in the United States Post Office approxi­
mately fourteen months.

Q. While you are working for the Post Office Depart­
ment, you stay in Atlanta, I presume?

A. Yes. I ’m—
Q. You don’t commute every day, do you?
A. I ’m in transit from Macon to Atlanta. My home is 

there. My church is there. My family is there.
Q. I ask you again, do you commute every day from 

Macon to Atlanta ?
A. No, I don’t commute every day from Macon to At­

lanta.
Q. As a matter of fact, the day you came to the motel, 

you went to work for the Post Office Department about 4 :30 
that afternoon, didn’t you?

A. That’s correct.



41

Q. And you went to work for the Post Office Department 
at—the next day on Sunday about 4:30, didn’t you?

A. That is incorrect. I don’t work on Sundays. I ’m a 
minister.

Q. You don’t work Sunday?
A. I ’m a minister. I don’t work Sundays.
Q. If your job requires you to work on Sunday, do you 

work?
A. My job does not require me to work on Sundays. I ’m 

a minister.
[fol. 62] Q. But you worked Saturday three hours after 
you came to the motel, didn’t you?

A. That’s correct.
Mr. Bolleston: That’s all.
Judge Tuttle: You may go down. Any other witnesses, 

Mr. Barrett?
Mr. Barrett: No further witnesses.
Judge Tuttle: You may proceed with your argument, 

Mr. Bolleston. I understood you to say you had no wit­
nesses.

Argument on Behalf of P laintiff by Mb. B olleston

Mr. Bolleston: No witnesses.
May it please the Court, of course we filed a brief in this 

case and I certainly don’t intend to go through the whole 
brief, in accordance with the rules of Court. I would like to 
state briefly our position without even arguing it as far as 
their motion is concerned. We have brought this suit in 
court under the declaratory judgment act, and under that 
act we believe the provisions are broad enough to include 
all of the prayers in the petition because the act says that 
in the case of an actual controversy—and we submit there 
is a controversy because of nothing else, regardless of the 
testimony, because of our announced intention—within this 
jurisdiction except in the case of federal taxes any court of 
the United States upon the filing of appropriate pleadings 
may declare the rights and other legal relations of any 
[fol. 63] interested party seeking such declaration whether 
or not further relief is or could be sought. And the fact 
that they have brought in their motion to dismiss the ques­



42

tion of the amount of damages we sought and limit of ten 
thousand dollars, should go to the Court of Claims, is one 
basis of their argument I ’m sure, and they say we have no 
controversy.

Judge Tuttle: Let me—let me—
Mr. Eolleston: Yes, sir.
Judge Tuttle: —clarify one point. Of course, their mo­

tion to dismiss does go to the point of your including or 
undertaking to include a suit against the United States for 
damages. You don’t, I believe, reach that point in your, in 
your brief that you filed.

Mr. Eolleston: No, s ir; I didn’t even touch on it.
Judge Tuttle: Well, it may help you to get a little—at 

least in my thinking on the matter it does appear to me 
that you cannot join a suit against the United States for 
damages on any theory with your suit for injunction be­
cause it’s perfectly clear that even though your theory be 
right that your property is taken without just compensa­
tion, the Tucker Act does limit the District Court’s juris­
diction to ten thousand dollars. You might file written 
briefs on that if you will, because I would hardly think it 
necessary to have further oral argument on that.
[fol. 64] Mr. Eolleston: Yes, sir. Of course, the other part 
of the act says that if the court takes jurisdiction and makes 
a decision in the declaratory judgment suit, they can ren­
der such other relief that is necessary. And that is the 
basis on which we are travelling. Of course, they have 
raised the point of sovereignty immunity. On that particu­
lar issue I ’ll simply state that if there has been a taking of 
property without just compensation, we don’t have to ask 
permission of the United States Government to sue them 
because they are violating the Constitution, if they are.

Judge Tuttle: The Government is giving you that per­
mission by giving you the right to sue in the Court of 
Claims if it exceeds ten thousand dollars.

Mr. Eolleston: As to the facts, Your Honor, before I get 
to the legal end of it—

Judge Tuttle: Yes.
Mr. Eolleston: —it is our position, and I ’d like to state 

it very clearly, Number 1, whatever the order of this Court



43

or any other court is, Federal, State or any other court, 
this plaintiff corporation will obey.

Number 2, our policy had been to exclude Negroes on 
the basis of race from this motel before the passage and 
before the Act became law. Our policy since that time, 
we announced that, our policy since that time, we have 
announced that we would not take guests, because we filed 
[fol. 65] a suit within two hours after the law was signed 
into law, and on the theory that even though we recognize 
that any law is valid and, until declared to the contrary, 
once the matter is in the breast of the court, it was our in­
terpretation that we could stand on whatever the court de­
cided, and there was an early hearing set, and that was what 
we were standing on.

As far as the testimony of these witnesses, both of them 
actually live in Atlanta, Georgia. They may maintain their 
domicile somewhere else, but they are living in Atlanta, 
Georgia.

Judge Tuttle: Of course, you didn’t take the witness 
stand to testify that you don’t accept Atlanta residents in 
your motel; so this fact issue that you asked them about, 
one of them denied and the other said yes, as to one man it 
applied.

Mr. Rolleston: Yes.
Judge Tuttle: Does this become an issue in the case?
Mr. Rolleston: No, sir; but I want to make the point 

that, and I, it’s important to me as a lawyer, that in my 
opinion the plaintiff corporation hasn’t as yet been con­
fronted with a situation where it had to make the choice 
whether it was obeying the law at this time because these 
people wouldn’t have qualified anyway. We don’t take 
white people from Atlanta except under very unusual 
[fol. 66] circumstances.

Judge Tuttle: Now isn’t it undisputed evidence, and 
this is all there is so far, that one of the witnesses, that is, 
the first witness, that he was not asked—stated by you 
anything about the Atlanta policy. That’s his testimony.

Mr. Rolleston: His testimony; yes, sir.
Judge Tuttle: That’s undisputed.
Mr. Rolleston: But the other witness said that was made 

to him. That that statement was made to him.



44

Judge Tuttle: Yes, he did.
Mr. Rolleston: So you’ve got two witnesses; at least 

one heard it.
Judge Tuttle: Not testifying about the same situation, 

though.
Mr. Rolleston: Well, all—the only point I want to make, 

Your Honor, is I think we have been complying with the 
law up until now and just haven’t had to be in the embar­
rassing position to make a decision.

As to the law in the case, and this is the important thing, 
the constitutionality of the Civil Rights Act of 1964 is, is 
really the only and the basic issue that this Court really 
needs to decide.

Judge Tuttle: This is why I ’m wondering if you really 
just don’t state that and say that the facts do bring you 
[fol. 67] within it and therefore the legal question is all 
we have to decide. You don’t go quite that far as I under­
stand it.

Mr. Rolleston: I think—I had hoped our petition brought 
us within the actual controversy part of the declaratory 
judgment act and I would like to state that that is our 
position so there won’t be any conflict in the record.

Judge Tuttle: All right.
Mr. Rolleston: Of course, this act was put forth by the 

executive part of our government, two administrations. 
I t’s been debated at least by a number of really good law­
yers who represent us in Congress. It is now the act of 
Congress; the legislative branch has passed on i t ; and the 
real question now is whether or not those two departments 
of the government have acted wisely and in accordance with 
the Constitution in passing this law.

Judge Tuttle: We don’t deal with whether it’s—■
Judge Morgan: Whether it’s wise?
Judge Tuttle: —wise or not, do we ?
Mr. Rolleston: Well, I will go further and say “accu­

rate and just,” and a judicial interpretation has got to be 
put on it by the third party, this judicial branch of the 
government. No, they—they have the question of determin­
ing whether it’s wise or not. This Court, I ’ll submit, has 
[fol. 68] only one question to determine, and that is whether 
it’s in accordance with the law. But the courts can best



45

effect justice for all people by carefully preserving and 
observing our legal processes.

Really, there’s only one issue that I’m—would rely on 
today, although I would like to discuss it briefly—discuss 
briefly all of the issues, and that is that where a United 
States Supreme Court decision on a subject has been 
handed down and still valid and unreversed, no court, 
State, local or any other, has the right under our Anglo- 
Saxon jurisprudence and judicial proceedings to reverse 
that other decision of the United States Supreme ex­
cept the United States Supreme Court itself. That’s really 
the basis. Of course, there’s a lot of things been changed in 
the law. But when I was in law school, and every freshman 
law school man now, I think every member of the bar right 
now, and most every court, knows of that simple principle, 
that no court can reverse the United States Supreme Court 
except the Supreme Court itself, if, if it’s a decision that 
is valid and fits the facts of the case before the court.

There’s an old principle that we lawyers hear about, or 
adage anyway, “Beware of a man that comes into court 
with one case.” I ’m really here with one case.

Judge Tuttle: What you call a “white horse” case.
Mr. Rolleston: A “white horse” case. Whatever you wTant 

to call it. But I ’m riding this “white horse,” and that’s 
[fol. 69] the civil rights case decided 109 U.S. Page 3 in 
1883 involving the Civil Rights Act of 1875. I submit that 
this Court, regardless of how it will decide the constitu­
tionality of the present law, is bound by that case.

Judge Tuttle: I think I should make it plain, when I 
said “white horse” case, of course lawyers know what I 
meant by it. The law students speak of a “white horse” 
case as a ease that fits the facts and the law precisely.

Mr. Rolleston: Yes, sir. Yes, sir. You don’t come in on 
a black horse, as the fellow said, on the front or back of it; 
you come in on a wdrole “white horse.”

And this Court can’t presume either, I submit, that the 
United States Supreme Court will reverse itself. That’s 
up to them, whatever they want to do about it.

Now our act, if I may read just one paragraph of that 
previous act, previous Act of 1875 had only two sections 
and the second section, the penal section was about, if—if



46

it had been passed today it would really be a subject of 
controversy because it was a strong penal section. But the 
first section of the act is almost verbatim, the hundred 
some-odd years apart, to the act that was passed in the 
present Congress. And it reads that “all persons within 
the jurisdiction of the United States shall be entitled to the 
full and equal enjoyment of accommodations, advantages, 
[fol. 70] facilities and privileges of inns, public convey­
ances on land or water, theatres and other places of public 
amusement subject only to the conditions and limitations 
established by law and applicable alike to citizens of every 
race and color, regardless of any previous condition of 
servitude.” And that’s my one “white horse” case, because 
they have decided the same issue exactly which is presented 
by the Civil Bights Act of 1964.

Judge Tuttle: Now, of course, if you read that opinion 
carefully as I know you have, you’ll find this language or 
something like this in it, “Neither party contends that this 
Act may be sustained by anything other than the Four­
teenth Amendment to the Constitution,” which of course 
means the court there stated that no one then contended 
that it could be sustained by the commerce clause. Now 
what has the Supreme Court of the United States done with 
the commerce clause since that time?

Mr. Rolleston: They have distorted it, may it please the 
Court.

Judge Tuttle: So that without doing violence to that de­
cision, the court has now made it really inapplicable for 
anyone to argue that this Act, which is ostensibly placed, 
based on the commerce clause cannot be supported by the 
commerce clause rather than the Fourteenth Amendment.

Mr. Rolleston: Well, I have read the whole case, of 
[fol. 71] course, and I ’ve cited a good portion of the deci­
sion in my brief,—

Judge Tuttle: You don’t—
Mr. Rolleston: —but I—
Judge Tuttle: You don’t recall that language?
Mr. Rolleston: Oh, yes; I recall the language referring 

to the commerce clause. As a matter of fact, the court in 
that part of the decision said, “We’re not saying that it 
could not be decided on the commerce clause,” but the deci­



47

sion held, the first part of it asked the question, “Has 
Congress constitutional power to make such a law!” And 
they made this statement, “Of course”—using the words 
“of course”—of course, this is a long time ago—“no one 
will contend that the power to pass it was contained in the 
Constitution before the adoption of the last three amend­
ments”—meaning the Thirteenth, Fourteenth and Fifteenth 
Amendments. The commerce clause was in the Constitu­
tion and the Fifth Amendment was in the Constitution at 
that time.

Judge Tuttle: So the Court there did not pass on whether 
it could be sustained under the commerce clause. It said 
no one has contended it was supported under the commerce 
clause.

Mr. Bolleston: But here’s the interesting part of the 
language which is the basis for what is said in the decision. 
“Such legislation cannot properly cover the whole domain 
[fol. 72] of rights appertaining to life, liberty and prop­
erty, defining them and providing for their vindication. 
That would he to establish a code of municipal law regula­
tive of all private rights between man and man in society. 
It would be to make Congress take the place of the State 
legislatures and to supersede them.” And we say that this 
really is the basis of this, of this Act. But the Court is not 
responsible for the consequences of its judgment, as to wdiat 
happens to what you decide. I t’s only responsible it seems 
to me to uphold our judicial processes.

Now the commerce clause which is now the basis of the 
present act is the interesting thing, because this is an 
innocuous and simple little clause and all it said rvas, in the 
third clause, it says, “Congress shall have the power to 
regulate commerce with foreign nations among the several 
states and with the Indian tribes.” That’s all it said, and 
on that one little sentence we are about to change the gov­
ernment of the United States. We have a Fifth Amend­
ment in the Constitution which guarantees that no person 
shall be deprived of life, liberty or property without due 
process. We have a Thirteenth Amendment in the Consti­
tution that says there will he no slavery or involuntary 
servitude. We have a Fourteenth Amendment in the Con­
stitution that says no state shall pass a law abridging the



48

equal rights of people of any color for any reason. And 
[fol. 73] yet, the Congress didn’t rely on any of these 
amendments to the Constitution in passing this bill. It 
specifically relies on interstate commerce.

Judge Morgan: Don’t you think a motel such as yours is 
in interstate commerce, Mr. Eolleston?

Mr. Eolleston: No, sir, I don’t; and I’ll proceed to say 
why. As a matter of fact, this bill—

Judge Morgan: Under the decisions of the Supreme 
Court?

Mr. Eolleston: Well, I ’ve got three decisions in here that 
say to the contrary. This bill really, instead of being called 
the Civil Eights Act of 1964 should really have been called, 
named—and it’s the biggest misnomer in history—The Ex­
tension of the Interstate Commerce Clause to eradicate 
State Legislatures. What commerce is now and what it was 
way back yonder are entirely different. But there are 
three cases cited in our brief. One involves taxicabs. One 
involves the Howard Johnson Eestaurant. And one in­
volves a bowling alley.

In the taxicab case, the facts were that people from out 
of the state—whether they were domiciled in Massachu­
setts and lived in Atlanta or not—people from out of the 
state came to the railroad station in Chicago, got off the 
train, got in a taxicab and either went to a hotel, office 
building or home. And the other part of the facts were the 
[fol. 74] very reverse, they started at their homes and office 
buildings and hotels, and went to the railroad station. And 
under the Anti-Trust Act which they were tried under, they 
held that the taxicab transporting that man to the railroad 
station or going vice versa, the taxicab company was not 
in interstate commerce. In the Howard—this was some 
time ago—but in the Howard Johnson Case, which was de­
cided in the Fourth Circuit Court of Appeals, it’s not the 
United States Supreme Court—and my theory, may it 
please the Court, as far as the controlling case on this issue 
in my first legal theory, of course, doesn’t apply to inter­
state commerce or these other parts of my argument. But 
in the Howard Johnson case in 1959, they brought, a Negro 
attorney for the Internal Office—Internal Eevenue Office 
brought a suit against Howard Johnson and said, “You



49

serve—yon sit here on an interstate highway; you serve 
guests who are travelling in interstate commerce; and 
therefore you are in interstate commerce.” And they held 
that the Howard Johnson Restaurant was not in interstate 
commerce.

Judge Tuttle: Of course, there’s no congressional act 
there being construed by the court.

Mr. Rolleston: No, sir; but Judge asked me did I think 
we were in interstate commerce. We’ve got other decisions 
on similar facts—

Judge Morgan: What I based it on, isn’t there a number 
[fol. 75] of NLRB cases that have gone to the courts hold­
ing that hotels or motels except those residential motels 
were under the, subject to the NLRB wage and hour—

Mr. Rolleston: I don’t remember whether they have gone 
to the Supreme Court or not, Judge Morgan. Of course, 
you can find a case on any subject.

Judge Morgan: One went from the circuit court of ap­
peals I believe to the Supreme Court, and certiorari, it was 
sent back to the court of appeals,—

Mr. Rolleston: Yes, sir.
Judge Morgan: —and since that time it’s been accepted, 

hadn’t it!
Mr. Rolleston: I ’m sure you can find cases in the circuit 

court and in the Supreme Court to the contrary of these 
cases. There’s no question about it. But here are these 
cases, too.

Judge Morgan: All right. You go ahead. I didn’t mean—
Mr. Rolleston: Then there’s a case decided in 1963 in 

the State of New York by the Supreme Court of New York 
regarding a bowling alley. And in that case the bowling 
alley drew trade from interstate commerce; they advertised 
in interstate commerce, which they stipulated in the facts 
as we have; and they received equipment in interstate 
commerce. And they held that just because interstate trav­
ellers went to that bowling alley, the bowling alley was not 
[fol. 76] in interstate commerce. And the Howard Johnson 
Restaurant was not in interstate commerce. And the hotels 
that the people went to by taxicabs was not, could not be in 
my opinion in interstate commerce, if the man in the taxi- 
cab had ceased to be in interstate commerce when he got



50

in the taxicabs. That’s the substance of it. But the trouble 
about this thing, and the reason I ’m talking about interstate 
commerce so much is that what is the final conclusion if 
you are adopting the theory that Congress has now put on 
the word “commerce among the states?”

I will give you my example again. Suppose a man comes 
to Atlanta by airplane. That’s the usual means of trans­
portation now. He catches a cab into Atlanta; goes to the 
First National Bank and arranges for a construction loan. 
He goes to a local real estate company and signs a contract 
to buy a piece of land to build a building for his company 
on. The right usual thing happening today. He goes to a 
local contractor that doesn’t ever step out of Fulton County 
hardly and makes a contract to build the building. He goes 
to the Commerce Club down the street and eats lunch. 
He is entertained at the Driving Club. At night he goes to 
the Wits End, and finally he gets to the Heart of Atlanta 
Motel. Do you mean to tell me that every one of those local 
businesses, except the First National Bank of Atlanta, 
every one of those local businesses has now become in inter- 
[fol. 77] state commerce because of the stretching of the 
word “commerce among the states?” I call it interstate 
commerce by infection, because it’s just like a malaria 
mosquito jumping from one man to the next one; every vic­
tim is infected. And the logical conclusion—

Judge Tuttle: I think the malaria mosquito has one bite 
and then he dies.

Mr. Rolleston: I wish this man had just one bite. He 
would have bitten somebody long before he got to me. But 
in this case, if you drag that out to its conclusion, that be­
cause he is a man in interstate commerce, a traveller, if you 
can say the restaurant is in interstate commerce and the 
bowling alley and the taxicab and our motel, you can take 
every corner drugstore and put him in interstate commerce. 
You can take every lawyer who buys a pencil to run his 
business with, and he can’t run his business without one; 
you can take every doctor who buys an instrument from 
Connecticut. You can take anybody who buys anything 
from another part of the country. That’s what they are try­
ing to do with “interstate commerce.” And they’ll put them 
all in interstate commerce. And the legislature might as



51

well go home and forget about reapportionment and don’t 
ever come back because whatever they pass would be of no 
value and no good, if Congress has appropriated that field 
of legislation. As long as they don’t, they haven’t. But why 
[fol. 78] would you expect Congress not to ? Has any gov­
ernment in our history ever had power to exert over legal 
situations and abandoned that power and given it up? If 
they ever got it, they keep on taking more.

Judge Tuttle: Since you asked that question, let me 
answer it for you. Congress in the Fair Labor Standards 
Act expressly saved out of the operation of the Fair Labor 
Standards Act retail establishments, local retail establish­
ments, which is of course complete congressional restraint. 
The large retail establishments undoubtedly under decisions 
of the Supreme Court could be held by Congress to be with­
in the stream of interstate commerce. But they have kept 
out of that by exempting local retail establishments.

Mr. Rolleston: Well, there’s another case of it, Tour 
Honor. Congress has kindly kept the hotel and restaurant 
industry out of the wage and hour law too, so far. But every 
time Congress meets—

Judge Tuttle: Not Congress, but the Labor Board.
Mr. Rolleston: Well, I was going to say every time Con­

gress gets—every time Congress meets, Tour Honor, they 
have a law, and have one pending right now, to put these 
other industries under wage and hour. And the only reason 
we are not there now, frankly, is that they bring in a great 
big act that covers everybody, and whoever puts up the 
biggest opposition they drop them out one time, and pass 
[fol. 79] the law. And next year, they’ve only got those 
two to work on and they get one of them; and then the next 
year, they get the last one, and finally they’ve got all of 
them, in interstate commerce, and under the wage and hour 
law, and under the Sherman Anti-Trust Law, and under 
NLRB; and then they’ve got everything that used to be 
private rights. This is really the gravamen of the case. 
This is the guts of it. This is really the reason we brought 
the lawsuit. We could get along with Negro guests. They 
would hurt our business as we’ve alleged, and it’s true. We 
could get along with them. But the next step after this act, 
there may just be one more step, that’s taking over all legis­



52

lation by Congress, so setting up the stage for a dictator­
ship in this country. I ’m telling you, this extension of the 
commerce act to every man, woman and child in this room 
and in the United States, business and personal affairs, is 
not authorized by the Constitution.

The Fifth Amendment we’ve claimed is violated also. 
The Fifth Amendment says you can’t take a man’s liberty or 
property without due process; and you can’t take it, his 
property without just compensation. Have they taken our 
liberty at the Heart of Atlanta Motel? We used to could 
say who could come there and who could not come there and 
we would turn them away for whatever reason we wanted. 
We don’t have that liberty under the prohibitions of this 
[fol. 80] act if the act is good. We say that the taking of 
our liberty has been done by an act of Congress. I t’s the 
same liberty any other local individual has to run his busi­
ness.

Judge Tuttle: Does the innkeeper traditionally have that 
same privilege?

Mr. Rolleston: Under, Your Honor, under the common 
law, the innkeeper did not have it, that privilege. But 
where the common law has been changed by statute—

Judge Tuttle: He had to take them all, did he not ?
Mr. Rolleston: That’s right. Under the common law he 

had to take everyone. But where the common law, as the 
Court know, prevails unless changed by statute. In Geor­
gia the statute has changed the common law. In the 52nd— 
Chapter 52-101 defines what an inn is, and they say, “An 
inn includes all taverns, hotels” and so forth, and then the 
next chapter, it says, “Persons entertaining only a few 
individuals are not”—“Persons entertaining only a few 
individuals, or simply for the accommodation of travellers” 
—and the stipulation of facts in this case are that we take 
transient guests—“are not innkeepers, but depositaries 
for hire, bound to ordinary diligence.” And then in another 
code section, Chapter 52-3 under “Tourist Courts” they 
define, it says, “This Chapter shall not apply to hotels and 
inns within the definition of” the previous chapter, and that 
[fol. 81] “Every person, firm or corporation engaged in the 
business of operating outside the corporate limits of any 
city or town in this State a tourist court, cabin, tourist



53

home, roadhouse, public dancehall or other similar estab­
lishment by whatever name called, where travellers and 
transient guests are entertained are not innkeepers.” And 
they have another chapter, which says that a—52-401, which 
says that a tourist court shall include among other things 
motor hotels. And then they have a penal section in this 
chapter which says that motor hotels, for failing to do 
so and so about health are subject to penal things. All 
through this whole chapter motels and motor hotels are 
treated differently; they have to get a different license; 
there are different penal sections; and they are taken out 
of the definition of the innkeeper because the very act 
says so.

As to the Fifth Amendment, not only has our liberty been 
taken we claim, but part of our property rights. Any pro­
prietary interest in the ownership of private property if 
interfered with where the owner can thereafter not exercise 
their right, if it is the result of a taking by a government, 
it is a taking of property under the law. The Fifth Amend­
ment says property cannot be taken without due process. 
Certainly this Circuit Court, Fifth Circuit Court of Ap­
peals has defined the due process just recently in the 
Hornsby Case this year and set up, as the Court is very 
[fol. 82] familiar with, that there must be a responsible 
hearing, based on evidence taken at a hearing where notice 
is given, witnesses there and witnesses to be cross exam­
ined, and only based on the evidence adduced at the trial. 
Has there been a hearing on the taking of our property, if 
there has been a taking ?

Judge Tuttle: Well, you are talking about procedural 
due process and of course the passage by Congress of a con­
stitutional law is due process. You are speaking of proce­
dural due process in an administrative procedure, which is 
quite a different thing. You would not—

Mr. Eolleston: Your Honor,—
Judge Tuttle: You would not argue against the proposi­

tion that a statute which is constitutional complies with due 
process, substantive due process.

Mr. Eolleston: That is true. But I would say that a 
statute could be unconstitutional because it violates the



54

Fifth Amendment by taking private property without pro­
cedural due process. There’s no procedural due process 
set up in the statute, and therefore it’s void.

The other part of the statute says that property shall 
not be taken without just compensation. Of course, there’s 
no compensation set up in the statute for the taking, if 
there is a taking. And I cite recent cases to the Court in 
the decisions, one of them from the—they are not Supreme 
Court cases, but in 1961 the Supreme Court of the State 
[fol. 83] of Washington, way out on the West Coast, held 
“this constitutional right of the individual not to be domi­
nated as a private affair is predicated upon the theory that 
the greatest good for the greatest number can be best 
achieved by permitting the individual to choose his own 
course of action, conforming of course to the reciprocal 
rights of others.” And in the other case, decided in 1959 in 
Washington, in the Cinderella Case, no truer words were 
ever spoken than these in that case when it says, “In deal­
ings between men, both cannot be free unless each acts vol­
untarily; otherwise, one is subjugated to the will of the 
other.

As to the Thirteenth Amendment which we have attacked 
by amendment, the Thirteenth Amendment provided there 
be no slavery and no involuntary servitude. In our case, 
how can we say that we are subject to involuntary servi­
tude? We say that we had the right to run the motel like 
we wanted to before the act was passed. We now have the 
right to run the motel like the Government says. Sure, we 
have the alternative of quitting and giving up a four million 
dollar business; but can that be required of a business by 
law? In the Hodges versus United States in 1906, some 
time ago, they held concerning the Thirteenth Amendment 
that slavery and involuntary servitude is denounced by 
the Thirteenth Amendment, meaning a condition of en­
forcement of compulsory service one to another. And while 
[fol. 84] the cause in citing that amendment was the eman­
cipation of the colored race, it reaches every individual and 
every race.

In this Fifth Circuit Court of Appeals in 1944 in the 
Heflin Case, they say, Well, if you got paid for it, that’s 
all right; that takes it out of the Thirteenth Amendment.



55

The case held whether the parent was paid little or nothing 
is not the question. It is not uncompensated service but 
involuntary servitude which is prohibited by the Thirteenth 
Amendment. Compensation for service may cause consent, 
but unless it does, unless it does, it is no justification for 
forced labor.

And the United States Supreme Court has held it re­
quires no argument to show that the right to work for a liv­
ing is, in the common occupation of the community, is the 
very essence of the personal freedom and opportunity that 
it was the purpose of the Fourteenth Amendment to secure.

May it please the Court, our legal position is that there 
has been a case decided which is controlling on facts that 
are in this case and on a law which is almost exactly the 
same, and that the Court is bound in following our legal 
procedures to follow it and throw this ease to the United 
States Supreme Court to do what they may. But at this 
stage of the game, it ought to go up there. And we claim, of 
course, that it violates the Fifth Amendment by the taking 
[fol. 85] of property and liberty without due process of 
law and without compensation; violates the Thirteenth 
Amendment involving involuntary servitude.

I would like to say one other thing, may it please the 
Court. The name of Kennedy will be, go down in history 
of all times regarding civil rights.

Judge Tuttle: Mr. Rolleston,—
Mr. Rolleston: John F. Kennedy—
Judge Tuttle: —is this proper argument!
Mr. Rolleston: Yes, sir; I think so. Just—
Judge Tuttle: We are not disposed to cut you off, but 

actually, what—what’s proper about it!
Mr. Rolleston: Well, sometimes in the affairs of men it 

takes more than one individual to express a thing, and I 
want to quote a man. Mr. Robert Kennedy, the defendant 
in this case, wrote in the prefaced word to the Memorial 
Edition of the PROFILES IK COURAGE that the one 
thing that President Kennedy admired was courage. It 
took courage to pass this law. It took a little courage maybe 
to file a suit against the Federal Government. And I know 
this Court will follow the motto over the Supreme Court of 
Georgia’s bench which says in Latin, when translated, “Let



56

justice be done though the heavens may fall.” And I know 
this Court, if it agrees with our legal interpretation will do 
that in spite of the consequences which could arise out of 
[fol. 86] such a decision. And I thank you.

A r g u m e n t  on  B e h a l f  of D e fe n d a n t  by  M r . M arshall  

Judge Tuttle: Mr. Marshall.
Mr. Marshall: May it please the Court, the United States 

has prepared a memorandum on the constitutional—
Judge Tuttle: I think you might almost call it a brief 

without exaggerating.
Mr. Marshall: Memorandum of points and cases. I ’ve 

given a copy to Mr. Rolleston. We captioned the brief in 
the case involving Pickrick Restaurant as well as in this 
case for the sake of convenience.

Clerk: Have you got an extra copy, sir ?
Mr. Marshall: Yes, sir. I think I can be relatively brief 

about this, may it please the Court.
The first point made by Mr. Rolleston turns on the civil 

rights cases which involve the constitutionality of a bill 
passed in 1875. As you mentioned, Judge Tuttle, it shows 
on the face of those cases that they were not deciding any 
question about the power of Congress to pass a law under 
the commerce clause. In addition to the language which 
you referred to, I would like to call the Court’s attention to 
the later case of Butts against Merchant and Miners Trans­
portation Company, which is 230 U.S. 126. It involved a 
private suit for damages under the 1875 Act, and it was 
based—argued that, that the act was unconstitutional under 
the commerce clause. The Supreme Court said in that case 
[fol. 87] that the civil rights act had not been passed under 
the commerce clause. The question of the constitutional 
validity of those sections was passed on only under the 
Fourteenth Amendment, and that it was held, they say, that 
the act received no support from the power of Congress to 
regulate interstate commerce because as is shown by the 
preamble and by their terms, they were not enacted in the 
exertion of that power. That case is cited in the brief. 
There are a number of leading—

Judge Tuttle: Do you deduce from that, the statement by 
the Supreme Court that an act may or may not be found



57

valid by it according to the theory or basis on which Con­
gress sees fit to enact it?

Mr. Marshall: Well, Your Honor, I think under the com­
merce clause, Congress has to be regulating interstate 
commerce.

Judge Tuttle: Because that’s the power that the Consti­
tution gives to Congress, to regulate commerce.

Mr. Marshall. To regulate; that’s right.
Judge Tuttle: Unless the Congress is actually seeking 

to regulate commerce, then it can’t be said that the act 
would fit under that commerce clause.

Mr. Marshall: That’s right. I think that’s what the court 
meant, that Congress wasn’t seeking to do that; therefore, 
the act couldn’t be sustained under whatever power Con­
gress had in attempting to do that. The 1875 acts were 
[fol. 88] based solely on the Fourteenth Amendment and 
to some extent on the Thirteenth and Fifteenth Amend­
ments.

Judge Morgan: This civil rights act for this year is based 
on the commerce clause.

Mr. Marshall: There are provisions of it, Judge Morgan, 
which are not involved in this case, that are based on the 
Fourteenth Amendment.

Judge Morgan: Well, I was actually referring to these 
provisions,—•

Judge Tuttle: Title II.
Judge Morgan: —public accommodations.
Mr. Marshall: No, not Title II. There are parts—
Judge Tuttle: Or both.
Mr. Marshall: —that are based on the Fourteenth 

Amendment. If you look at 201-B of the Act, you’ll see 
that it says each of the following establishments which 
serves the public, if its operations affect commerce or if the 
discrimination or segregation by it is supported by State 
action, that was an exercise of power under the Fourteenth 
Amendment in terms of the sit-in cases where the Supreme 
Court has held that if the State requires segregation by 
private establishments,—

Judge Tuttle: I don’t mean—I don’t understand you to 
say that any part of it is not, is not based on the commerce



58

clause, but it is also in certain respects sought to be based 
[fol. 89] on the Fourteenth Amendment. Is that what— 

Mr. Marshall: That’s right, Judge Tuttle. But that’s a 
very limited application. I t’s an application which is really 
designed to eliminate state compulsory segregation. The 
cases which I would refer the Court to that held generally 
on the power of the Congress under the commerce clause are 
four. There are others that are cited in our brief, but I 
think that four cases, starting in 1936, really set the bounds 
of the power of Congress to regulate commerce. One is 
the Jones and Laughlin Steel Corporation Case, 301 U.S. 
1, decided in 1936 upholding the Wagner Act which in 
many ways had similarities to this piece of legislation in the 
sense that it was intended to deal with a national problem 
that had been marked by a good deal of emotion and con­
troversy and even violence in the streets. The court said in 
that case that to regulate, in the course of regulation of 
commerce the Congress was not limited just to the regula­
tion of institutions which are in the stream of commerce 
or which themselves move in commerce, like railroads and 
buses, and that kind of thing, but that it can regulate and 
pass legislation to eliminate burdens and obstructions due 
to injurious actions springing from other sources. That 
the Wagner Act of course regulated the relationships be­
tween employers and their employees within the plants 
where the plants, the operations of the plants affected eom- 
[fol. 90] merce. And that, as you noted, Judge Morgan, 
has been recently in many cases applied to hotels, retail 
stores and other establishments that are local in the same 
sense that the Heart of Atlanta Motel is local.

Judge Tuttle: The Jones-Laughlin Case was the first 
decision by the Supreme Court that went so far as to hold 
that what had theretofore been considered purely local, 
like manufacturing, mining and farming and the like, might 
still be under congressional regulation. Is that—

Mr. Marshall: Well, Judge Tuttle, you say the first case. 
I think that the history of the commerce clause goes back 
to Gibbons against Ogden. I think that the decision in Jones 
and Laughlin and the following ones after that were in the 
keeping of the spirit and the view of congressional power 
which goes back to Justice Marshall’s opinion in Gibbons 
against Ogden. There was a case in 1922 involving the



59

Packers and Stockyards Act which related to regulation of 
the stockyards in Chicago, and of course, that was local in 
a sense that it all happened in Chicago. The hogs came in 
and meat went out. But what was regulated was local 
activity.

There are three cases which held also that Congress also 
has the power to regulate intrastate activity if that is neces­
sary to complete regulation of interstate commerce. Those 
are United States against Rock Roval Corporation, 307 
U.S. 533. The United States against Darby, 312 U.S. 100, 
[fol. 91] involving the Fair Labor Standards Act. And 
Wickard against Filburn, involving the Agricultural Ad­
justment Act. The last case, if you will recall, involved the 
regulation of a farmer who grew wheat on his own farm 
for consumption on his own farm, and the Supreme Court 
held that Congress had the power to reach that operation 
because of its involvement with the problem of wheat sur­
pluses generally.

Judge Morgan: Wasn’t it the old Schecter Case, wasn’t 
that the Schecter Case and the court has been more or less 
distinguishing or, as you say, whittling at the doctrine laid 
down in 1935 or ’36 in the Schecter Case since that time?

Mr. Marshall: I would say, Judge Morgan,—
Judge Tuttle: The Wickard Case—
Mr. Marshall: Wickard against Filburn. Also the Jones 

and Laughlin Case narrowed the Schecter Case very much; 
and there was a milk case I think involving Wrightwood 
Dairy, which referred to the Schecter Case and said some­
thing to the effect that its continuing validity was in doubt.

Judge Tuttle: The Schecter Case—
Mr. Marshall: I wrnuld say the Schecter Case is effec­

tively overruled.
Judge Tuttle: I went—
Mr. Marshall: And I think also—

[fol. 92] Judge Tuttle: It went largely as I recall it on 
the Supreme Court’s decision that Congress was illegally 
giving legislative power to, to an administrative board.

Mr. Marshall: That’s right, Judge Tuttle. It held that 
the—

Judge Tuttle: But in Butler—



60

Mr. Marshall: That the NIRA was an unlawful delega­
tion of legislative power, which is also a doctrine which 
has been abandoned.

Judge Tuttle: I think every student recognizes that 
about 1936 in January after the Butler Case where they 
knocked out the Agricultural Adjustment Act, there was 
really a complete turn-around from that point on, the 
erosion if you would like to speak of it that way, was very 
effectively commenced. And this Jones-Laughlin Case was 
the first important decision after the United States lost 
the Butler Case.

Mr. Marshall: That’s right, Judge Tuttle. I believe with 
the exception of the Jones and Laughlin Case, the other- 
cases that I referred to as basic decisions, the Darby 
Case, the Rock Royal Case and Wickard and—Wickard 
against Filburn were unanimous. And of course in recent 
years since then there have been a number of decisions 
under the National Labor Relations Act and the Labor- 
Management Relations Act which have been unanimous; 
and—and mostly per curiam, upholding exertions of 
[fol. 93] jurisdiction by the National Labor Relations Board 
over what are effectively local businesses because what 
happens to these local businesses affects the interstate 
commerce.

Judge Morgan: The case I was referring to was the—I 
believe it was the Floridian Case. I don’t know whether 
that went to the Supreme Court, but it was in regard to 
the Fair Labor Standards Act, and then went up, is my 
recollection.

Mr. Marshall: Is that case cited in your opinion?
Judge Morgan: I don’t believe it’s cited in any of the 

briefs. I read it recently.
Mr. Marshall: These cases hold that Congress has the 

power to regulate commerce not only in the sense that they 
can regulate things that move in interstate commerce 
generally, but that they can pass legislation that deals 
with problems that affect interstate commerce. Our brief 
sets forth four—and there may be more—but it sets 
forth four ways in which the problem dealt with in Title 
II could reasonably be considered by Congress to have 
affected interstate commerce so that it required congres­



61

sional action. And of course, as yon noted, Judge Tuttle, 
it is not for this Court to decide whether Congress was 
wise in making that decision. I t’s a question of whether 
it had the power to make that decision.

Judge Hooper: Mr. Marshall, to what extent do the 
courts have the right to say when Congress has said a 
[fol. 94] certain act does affect commerce, what right do 
the courts have or do not have to say whether that factual 
assumption is correct? Now in the Jones and Laughlin 
Case, the court said this, among other things: Undoubtedly 
the scope of this power must be considered in the light of 
our dual system of government and may not be extended 
so as to embrace effects upon interstate commerce so in­
direct and remote that to embrace them in view of our com­
plex society would effectually obliterate the distinction be­
tween what is national and what is local and create a com­
pletely centralized government.

Now what I ’m interested in is whether under the Civil 
Eights Act, Congress says that a certain thing does affect 
commerce, is that conclusive on the court or is it, is it not?

Mr. Marshall: Judge Hooper, I do not think that any 
constitutional opinion of Congress is conclusive on the 
court. I t’s the responsibility of the courts to repass on 
the constitutionality of statutes the Congress thinks are 
constitutional. But I think that the findings of Congress 
in a matter like this are entitled to very very great weight, 
and that at least—

Judge Tuttle: Substantial fact findings.
Mr. Marshall: That’s right, Judge Tuttle. It is fact 

findings, and they are based on the record and hearings. 
The matter was under consideration by Congress for over 
[fol. 95] a year. It was debated at great length. It is an 
issue and a problem that involves great emotions. There 
are great political problems with it. And all of that went 
into the determination by the Congress to deal with it, 
Judge Hooper. The decision of Congress on that was made 
by men that included very conservative men as well as very 
liberal men. And I think that that kind of a decision is 
entitled to great weight and has been given great weight 
by the Supreme Court except for a very brief period really 
extending maybe ten years from around 1925 to 1935.



62

Judge Hooper: Well, you see, in the instant case it’s 
stipulated that the Heart of Atlanta, 75% of its business is 
transient, which is right substantial. But suppose you later 
have a case where it’s almost negligible, the number of 
people who are in commerce who go there is almost negli­
gible. In that type of case—I was just thinking about the 
precedent of this case—in that kind of a case, where would 
the courts draw a line between what is substantial and 
what is not substantial!

Mr. Marshall: Judge Hooper, the—in dealing with a 
hotel, which this case does, the Aet does not require the 
court to draw that. Congress has made that determination. 
It defines the hotels covered by that Act in Section 201-B-l 
and 201-C Subsection 1. And it includes all inns, hotels, 
motels or other establishments which provide lodgings to 
[fol. 96] transient guests. All of them. I t is not a ques­
tion substantially under the Act. Now the question is, 
can Congress do that! Can Congress make that factual 
determination that in order to deal with the problem they 
have to regulate all hotels,—

Judge Hooper: Sir, do not all hotels furnish lodgings 
to transient guests!

Mr. Marshall: I would think so, Judge Hooper, or vir­
tually all of them.

Judge Tuttle: Do you have ready reference to any Su­
preme Court Case that I think states this proposition, some­
thing along these lines, that when a determination is made 
by Congress on—of this nature, the courts are required to 
support it if there’s any reasonable relation to the deter­
mination by Congress to the problem that it seeks to legis­
late on!

Mr. Marshall: I think that’s right, Judge Tuttle. I 
think that—•

Judge Tuttle: I think that’s the principle. I don’t have 
the case.

Mr. Marshall: I think the principle goes gack to Gibbons 
against Ogden. I  think—

Judge Tuttle: So that what—
Mr. Marshall: I think that language can be found in 

Gibbons against Ogden.



63

Judge Tuttle: So that what we are required to do is 
[fol. 97] to determine whether there was any reasonable 
basis for Congress to ascertain that the hotel industry 
reasonably affects interstate commerce.

Mr. Marshall: Yes. And this problem I think, Judge 
Tuttle, not only the hotel industry, but this problem within 
the hotel industry of racial discrimination,—

Judge Tuttle: Yes.
Mr. Marshall: —could Congress reasonably have made 

that determination. I think that’s the question.
Judge Tuttle: That this would be and have an adverse 

effect on interstate commerce.
Mr. Marshall: That’s right. In the Darby Case, Judge 

Hooper—no, I ’m sorry. I t’s in Wickard against Filburn, 
where there is no question but that the activities of the 
farmer who was regulated, that particular farmer, were 
intrastate. He grew wheat on his own farm for consump­
tion on his own farm. He grew more wheat than the quota 
that was allowed him under the Agricultural Adjustment 
Act. The question was whether Congress had the power 
to regulate that farmer, that particular farmer and the 
court held unanimously that he did—that Congress did. 
And among other things, it said, the court pointed out, 
citing Gibbons against Ogden, that effective restraints 
on the exercise of this power must proceed from political 
rather than from judicial process. I think our system 
works that way. If Congress is arbitrary and unreasonable 
[fol. 98] and the court can make that determination that 
there is an arbitrary or unreasonable relationship between 
what Congress was trying to do and some, some commercial 
problem affecting interstate commerce, then I think it 
would be the court’s duty to strike down the act. But un­
less it can make that determination, I think it’s up to 
Congress to—

Judge Hooper: You are saying that it is not necessary 
under this statute as to hotels to show that they take any 
transients moving in commerce, in interstate commerce.

Mr. Marshall: It has to be shown they take transients, 
Judge Hooper.

Judge Hooper: Transients.



64

Mr. Marshall: But it does not have to be shown that 
the transients in a particular case moved in interstate 
commerce.

Judge Hooper: Oh, no. We are not talking about the 
same thing. I realize that, but—

Mr. Marshall: But transients, Judge Hooper,—
Judge Tuttle: Because the definition in this act—
Mr. Marshall: In this act.
Judge Tuttle: —-is interstate commerce.
Mr. Marshall: In this act.
Judge Hooper: Any number, any amount of transients.
Mr. Marshall: Yes, that’s right.

[fol. 99] Judge Hooper: Transients, that means people 
who are moving in interstate commerce.

Mr. Marshall: No, Judge Hooper. Not necessarily. It 
means people that are moving, it means that the hotel is, 
the hotel caters to transients. That is, it isn’t a residential- 
hotel. The people that stay there don’t live there as resi­
dents. It takes in people that usually come from some other 
place, but the some other place does not under the Act, 
Judge Hooper, have to be shown to have been another state.

Now as I said, these cases, the Darby Case, the Rock 
Royal Case, and Wiekard against Filburn expressly hold 
that Congress has the power to reach some activities that 
are completely intrastate if they have to do that in order 
to control a problem, deal with a problem that they properly 
can deal with under the commerce clause. And those hold­
ings of those cases in turn go back to the Shreveport Rate 
Cases in 1914 where the question of the validity of an order 
of the Interstate Commerce Commission over purely intra­
state rates in Texas was involved. And that was upheld 
by the Supreme Court in the Rate Cases in 1914. And these 
cases carry that on, Judge Hooper.

Our brief sets forth and suggests four ways in which 
Congress could reasonably have made a determination that 
this was a commercial problem that they should deal with 
under their power to regulate interstate commerce. One is 
'[fol. 100] simply the burden on Negro travellers. This is 
a problem that Congress has dealt with before, dealt with it 
in the Interstate Commerce Act and dealt with it in the 
Federal Aviation Act. And those have been upheld unani­



65

mously. This Court upheld the, the validity of Interstate 
Commerce Commission rules that were to deal just with 
that problem in restaurants in bus stations. The problem 
of the discrimination against Negro travellers moving 
through the country. So that is one thing by itself that 
I think Congress had the legitimate, reasonable power to 
deal with and to determine that in order to deal with that 
they had to deal with all hotels.

Judge Tuttle: Let’s say then, do you take the position 
then on that point that if it is, if we find that Congress 
could have determined that the mere interference with the 
travel of Negroes by reason of these restrictions, it would 
be sufficient to sustain the Act on that ground?

Mr. Marshall: I think so, Judge Tuttle.
Judge Tuttle: And that is because the courts have held, 

including this court, or three-judge court I guess, it’s a 
local—

Judge Morgan: Same court.
Judge Tuttle: I t’s a local district court,—
Mr. Marshall: I think it was this court.
Judge Morgan: Same court.
Mr. Marshall: I think it’s the same court.

[fol. 101] Judge Tuttle: That the, that the interstate com­
merce rule prohibiting discrimination between white and 
Negro passengers in a bus station, and including the restau­
rant, would in no—would be justified—

Mr. Marshall: That’s right.
Judge Tuttle: —because that would be a burden on inter­

state commerce.
Mr. Marshall: Judge Tuttle, you will recall those rules 

weren’t limited to interstate travellers.
Judge Tuttle: That’s right.
Mr. Marshall: In fact, the court had that, the Fifth Cir­

cuit had that up in Baldwin against Morgan involving the 
Birmingham—

Judge Tuttle: Involving the Birmingham railroad sta­
tion.

Mr. Marshall: It applied to anyone that comes into the 
bus station, and it was reasonable for Congress to feel 
that that was the way they had to deal with bus stations



in order to deal with the problem of discrimination against 
Negro travellers.

Judge Morgan: Of course, in that—in those cases we 
dealt with the franchise—I mean the bus companies and 
so forth had a franchise. I know the principle was intra­
state affected interstate. I think that’s the way the State 
of Georgia brought the petition, as I recall.

Mr. Marshall: That’s right, Judge Morgan. I mean this 
[fob 102] is different, but this goes further; but the type 
of regulation by Congress going back to 1887 is exactly the 
same. It was the prohibiting of discrimination in local 
restaurants because the local restaurants were connected 
with an interstate bus system and therefore served at least 
some interstate travellers.

Judge Morgan: That’s right.
Mr. Marshall: Another reason that Congress couldn’t 

—could choose to deal with this under its interstate power, 
interstate commerce power is to move artificial, remove 
artificial restrictions on markets. And it has regulated 
essentially local businesses for that reason before. One 
that occurred to me is in the, under the antitrust laws. 
There have been a number of cases involving movie theatres 
and the question of movie threatres allocating runs between 
themselves and fixing admission prices on tickets. Now 
that’s a, an artificial restriction on who can see a movie 
when in the local theatre. The movie goes—moves through 
interstate commerce. So that these restrictions in hotels 
and in this case in restaurants, and in theatres, is something 
which restricts the market for goods that move in inter­
state commerce. 'The food that goes into a restaurant, if 
the market is limited to white, that restricts the market 
artificially. Same thing with a film that moves in interstate 
commerce. If it is shown in the theatres and Negroes are 
[fob 103] not permitted in the theatre, that is an artificial 
restriction on the market for that commodity that moved in 
interstate commerce. As I say, under the anti-trust laws, 
under the Federal Trade Commission Act, Congress has 
dealt, regulated with this sort of artificial restriction on 
markets. In this case, in terms of race, but it’s the power 
of Congress to deal with it.



67

Another one which I think is analogous as I said before 
to the Wagner Act is to deal with the causes of disputes that 
affect interstate commerce. The hearings before the Com­
merce Committee of the Senate included a great deal of 
material on the economic effect of disputes over discrimina­
tion in places of public accommodations. The City of Bir­
mingham, even here in Atlanta, in many many cities while 
Congress was considering this, there were economic effects 
on the business generally in those cities developing from 
the disputes over this. And Congress chose to deal with 
that through law, through regulation in the same way that 
it chose to deal with labor disputes under the Wagner Act 
in the Thirties.

And finally, and it’s sort of a corollary point, I think 
that these disputes and the discrimination generally could 
reasonably be decided by Congress to have affected arbi­
trarily in some adverse system against Southern States 
particularly, the allocation of resources within the country, 
the decision of where to put industrial plants, the decision 
[fob 104] of where to locate hotels, that kind of decision 
which affects the commerce of the United States very deeply 
and particularly in some of the states in the United States; 
it’s also a problem I think Congress felt it had to deal 
with and reasonably felt that it should deal with.

There are a couple of specific cases I wanted to call the 
Court’s attention to by the Supreme Court on this question 
of regulating local business. One is the Sullivan Case, 332 
U.S. 689. That held a drugstore violated the Food, Drug 
and Cosmetics Act by taking pills out of one box and putting 
them into other boxes, inside the store, and then selling 
these other boxes without the labels, properly. That was 
a very local operation. He bought the pills, and they 
stopped in the store, and they were reboxed in the store 
and then they were sold, all in the store. And that—

Judge Tuttle: The Food and Drug Act is entirely depen­
dent upon the commerce clause, isn’t it!

Mr. Marshall: Yes, it is, Judge Tuttle. I think in one of 
these cases, I believe it’s in the Darby Case, that—that the 
courts, court said that Congress may exercise the commerce 
power to prevent injuries to the public health, morals or 
welfare. That the fact that they are doing something else,



that they are advancing the canse of justice or meeting a 
[fol. 105] problem of health, morality or public welfare 
by regulating commerce doesn’t make the regulation invalid.

Judge Hooper: Well, has the Supreme Court said on 
several occasions that the general welfare clause is a 
matter of state law and not the federal law; that the wel­
fare clause has to be construed in the light of the specific 
powers which are given to Congress?

Mr. Marshall: Well, Judge Hooper, I did not intend to 
put any emphasis on the separate power of Congress under 
the general welfare clause. I said that in regulating com­
merce, in regulating commerce and in their exercise of that 
power, their purpose—this is what they said in Darby— 
could include such purposes as to promote public health, 
promote—

Judge Hooper: Oh, surely.
Mr. Marshall: —public morals or promote public wel­

fare.
Judge Hooper: Eight.
Mr. Marshall: And the fact is that a great deal of 

legislation passed under the commerce clause does that. 
The Pood and Drug Act, that’s mainly a health measure. 
I mean it’s done by regulation of commerce, but it is dealing 
with the problem of health. The Meat Inspection Act; the 
Poultry Products Inspection Act; the Plant Quarantine 
Act; Packers and Stockyards Act as I mentioned before 
which was held up—upheld in 1922; Pair Labor Standards 
[fol. 106] Act; the whole Wagner Act; and of course, the 
Mann Act and other things that are more direct, on that 
sort.

The—I think that these cases, the other two cases I 
particularly wanted to call the Court’s attention to on this 
question of local businesses was the Chevrolet Dealer Case, 
which is an NLRB case, which is cited in our brief, regula­
tion of a Chevrolet dealer who bought his cars from a 
plant inside the same state; and the Reliance Fuel Oil 
’Corporation Case, which is a recent case, unanimous case 
by the Supreme Court in 371 U.S. 224. Shubert Case under 
the anti-trust laws which regulates legitimate theatres 
through anti-trust laws, but it’s local cases. There are 
others, but—and there are others cited in our brief in­



69

eluding a number of cases that deal with regulation of 
hotels and this kind of establishments, hotels and restau­
rants.

That brings me to the question of whether there’s some 
limitation in the Fifth Amendment or the Thirteenth 
Amendment on this power of Congress under the commerce 
clause, I think it’s really the same question, that if Con­
gress has the power under the commerce clause to regulate 
and the regulation doesn’t involve the taking under the 
Fifth Amendment and isn’t prohibited by the Thirteenth 
Amendment, the, I just want to suggest to the Court some 
of the implications of the argument that this is a taking, 
[fol. 107] In the first place, it seems to me that the same 
argument would apply to the ICC rules, to the Boynton 
Case, to the Federal Aviation Act, to all the regulation 
under those statutes which have already been passed on.

Judge Morgan: The Food and Drug Act.
Mr. Marshall: The Food and Drug Act. But these are 

the same kind, Judge Morgan, is my point. The Boynton 
Case involves exactly the same kind of regulation. If it’s 
a taking of the Heart of Atlanta, it must be a taking of that 
restaurant in Virginia that was involved in the Boynton 
Case. The same thing is true of a restaurant in an airport. 
That’s regulated in the same fashion under the Federal 
Aviation Act and I don’t see how you could make the dis­
tinction based on the Fifth Amendment between that and 
this. And, you could say maybe commerce power doesn’t 
extend to this and it does to that, but that’s a different 
argument. This is that the Fifth Amendment itself is a 
limitation.

The Thompson Restaurant Case in the District of Colum­
bia, if the Fifth Amendment prohibits this sort of regula­
tion by the Federal Government, then the Thompson Res­
taurant Case which was unanimously decided by the Su­
preme Court upholding a prohibition against racial dis­
crimination in restaurants and hotels in the District of 
Columbia must have been wrongly decided. The Fifth 
Amendment is applicable in the District of Columbia. The 
[fol. 108] practice prohibited or regulated by Congress is 
exactly the same. The kinds of establishments covered are 
exactly the same. The cases that deal with this are mostly



70

cited in our brief, but the point I wanted to make, in addi­
tion to that there are thirty states that have laws that im­
pose this sort of regulation.

The Fourteenth Amendment also prohibits the taking 
of property without due process, and if it is a taking under 
the Fifth Amendment, it seems to me that the argument 
goes to all of these state laws.

Judge Tuttle: Have any of the state supreme courts 
held invalid this kind of open, open accommodations stat­
utes under the Fourteenth Amendment except the Washing­
ton decision?

Mr. Marshall: Well, Judge Tuttle, the Washington de­
cision dealt with an open occupancy housing statute.

Judge Tuttle: I understand.
Mr. Marshall: I believe that the, the opinion that is 

cited in the plaintiff’s brief is a concurring opinion that 
the—

Judge Tuttle: But they did—
Mr.. Marshall: —decision—
Judge Tuttle: —knock out the statute ?
Mr. Marshall: They did, Judge Tuttle; but I think it 

was in terms of the distinction made in the statute be­
tween publicly financed housing and other housing.
[fob 109] Judge Tuttle: Do you know of any supreme 
court in—any supreme court in any of the states of the 
United States that have held unconstitutional open accom­
modation statutes ?

Mr. Marshall: No, I do not, Judge Tuttle. A number 
of them have been upheld, and there’s a decision by the 
Supreme Court of the United States, unanimous, that 
upholds the validity of the Michigan Statute. That’s the 
Bob-Lo Excursion Company, which is in 333 U.S.

In addition, this point that I have been making about 
the Fifth Amendment not being an additional limitation 
but sort of the other side of the coin is made in the case 
called Bowles against Willingham which involves the price 
regulation, which was argued in the taking of property 
under the Fifth Amendment. In that case, the court said 
this: A member of the class which is regulated may suffer 
economic losses not shared by others. His property may



71

lose the utility and depreciate in value as a result—as a 
consequence of regulation; but that has never been a bar­
rier to the exercise of the police power, citing some state 
cases, and the restraints imposed on the national govern­
ment in this regard by the Fifth Amendment are no greater 
than those imposed on the States by the Fourteenth Amend­
ment. And then they cite some other cases involving fed­
eral regulations.

Our brief also cites a case called Central Eureka Min- 
[fol. 110] ing Company decided in 1958 in which the argu­
ment was made that the closing of a gold mine under regula­
tions on the sale and use of gold in this country was a 
taking, and the court held that that closing of the mine 
was not a taking under the Fifth Amendment, in view of 
the power of the Congress to deal with the problem.

That’s all.

Clo sin g  A r g u m en t  on B e h a l f  of P l a in t if f  
by  Mr. R olleston

Judge Tuttle: Mr. Rolleston?
Mr. Rolleston: If the Court please, I believe I have the 

closing,—
Judge Tuttle: Yes, sir.
Mr. Rolleston: —and I ’ll be very brief.
Judge Tuttle: Yes, sir.
Mr. Rolleston: Judge Hooper asked about the Act and 

what is really said. I ’d like to point this out, that the 
Title II says that the Act covers any described establish­
ment if it affects commerce. And then it says in the next 
wording, it says any of the ones listed in these subpara­
graphs One through Four affect commerce. So you have to 
look at the subsection, and it says any inn, hotel or motel 
or other establishment which provides lodging for transient 
guests. So under that interpretation I would say that any 
motel in the United States that takes a transient guest is 
covered by the Act.

Judge Tuttle: Unless it has less than five.
Mr. Rolleston: Unless it has less than five. Yes, sir. 

[fol. 111] Now the facts in the case stipulated that the Heart 
of Atlanta Motel takes transient guests, and seventy-five 
percent of them, Judge Hooper, come from outside of



72

Georgia; and that the rest of the transients, they can be 
transients even in Georgia if they come from Savannah 
to Atlanta,

Judge Tuttle: So more than 75% are transients.
Mr. Rolleston: You can almost say under our announced 

policy practically a hundred percent of them are transients. 
But 75%, the part that we are trying to stipulate, came from 
outside of Georgia. So this Act then must be, must be taken 
to mean that any motel except the one the man lives in and 
has only five rooms, which isn’t a motel; that’s just a house 
where they take lodgers; that any motel as such or any 
hotel—and there are sixty thousand motels in the United 
States, if they take one transient guest, they are covered 
by this Act, And I ’m, I ’ll state to the court, and I ’m, I ’m 
sure the Court will almost take judicial notice, there isn’t 
a motel or hotel in the United States that doesn’t take 
transient guests, so they are all covered by the Act. What 
it amounts to.

Now I would like to call the Court’s attention also, it 
says for the purposes of this Act, which is Section II, 
commerce, in quotes, means travel, trade, traffic, commerce, 
transportation and communication among the several states, 
[fol. 112] Taken literally, that could mean that the Con­
gress of the United States can control communications of 
individuals between the States. You say that’s a far-fetched 
conclusion? When the commerce clause historically was 
put in the Constitution, it was put there because under the 
confederation that this government operated under for 
twelve years after the War of Independence before the 
Congress adopted—before the Constitution was adopted 
in the Constitutional Convention, for twelve years there 
was practically no trade between these States that had 
any order, and that is the reason the commerce clause was, 
as I understand it, put in the Constitution, to regulate 
trade between the States. That’s the history of it. Now 
we have seen the commerce clause by all the cases I have 
cited and other counsel have cited for the Government 
in the various ways they have nibbled and nibbled and 
nibbled until they have taken the whole piece of cheese. 
And this is the last step. There isn’t anything left of inter-



73

-—intrastate commerce if this Act can be valid and en­
forced to the full extent, and it will be literally followed, 
I ’ll urge on the Court.

The one other point, counsel mentioned that the United 
States Supreme Court has recently upheld a Michigan de­
cision upholding the Michigan public accommodations law. 
They did so, though, on the grounds that a state may pass 
such legislation, pass such valid law', but not the Congress, 
[fol. 113] Under the Fourteenth Amendment—-it follows 
the ruling in the civil rights case which said the Fourteenth 
Amendment didn’t prohibit a state from doing it, but the 
Congress couldn’t do it.

'Thank you.
•Judge Tuttle: Anything further on either side? Well, 

for once counsel were not overly optimistic. We have a 
little time to spare. But we’ve announced the next case will 
be called at one o’clock—

Judge Morgan: One-thirty.
Judge Tuttle: Did we say one-thirty?
Judge Morgan: I believe so.
Judge Tuttle: One-thirty. The Court will take this case 

under advisement and announce the decision as promptly 
as possible. I ’ll ask this question, although this is a mo­
tion I guess for preliminary injunction, is there anything 
further to be proved or further argument to be made? 
Could this not be considered a final motion and trial on 
the permanent injunction? What do counsel have to say 
about that?

Mr. Rolleston: As far as the plaintiff is concerned, 
there’s nothing else, Your Honor.

Mr. Marshall: We are in agreement on that, Judge 
Tuttle. I think the whole case is before the Court now.

Judge Tuttle: The Court will stand in recess until one- 
thirty.

[fol. 114] (Whereupon, Court was recessed at 11:10 a.m.)

Reporter’s Certificate to foregoing transcript (omitted 
in printing).



74

[fol. 115] [File endorsement omitted]

I n  t h e  U n ited  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istr ic t  oe G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

H eart oe A tlanta  M o tel , I n c ., a Georgia corporation,
Plaintiff,

—versus—

T h e  U n ited  S tates oe A m erica  and R obert F. K en n ed y  
as the Attorney General of the United States, Defendant.

Op in io n —July 22, 1964
This is a complaint filed by Heart of Atlanta Motel, a 

large downtown motel in the city of Atlanta, regularly 
catering to out of state guests, praying for a declaratory 
judgment and injunction to prevent the Attorney General 
of the United States from exercising powers granted to him 
under the Civil Rights Act of 1964, 42 U. S. C. A., Section 
1971, as amended. The suit also attempts to obtain recovery 
from the United States for substantial damages alleged to 
result from a partial taking of the complainant’s property 
without just compensation.

Conceding, as it does, that it is regularly engaged in 
renting sleeping accommodations to out of town guests, 
seventy-five percent of whom come from without the state 
of Georgia, and that it “has refused and intends to refuse to 
rent sleeping accommodations to persons desiring said 
accommodations, for several different reasons, one of which 
is based on the grounds of race, unless ordered by this Court 
to comply with the provisions of the Civil Rights Act of 
1964,” the suit attacks the constitutionality of the public 
accommodations sections of the Civil Rights Act as applied 
to such a motel.



75

Since this is a suit seeking an injunction against the en­
forcement of a Federal statute on the alleged grounds that 
it is in violation of the United States Constitution, a three- 
judge court was convened as provided for in 28 U. S. C, A., 
Section 2282.
[fol. 116] The Attorney General filed a counterclaim seek­
ing, on behalf of the United States, a temporary and perma­
nent injunction against future violation of the Civil Rights 
Act by the plaintiff. The case was set down for hearing, 
and after the introduction of oral testimony on behalf of 
the United States, the signing of stipulations between the 
parties, and oral statements made by counsel for the plain­
tiff in open court, it appeared that no factual issues re­
mained. The parties also conceded in open court that the 
matter might be treated as a hearing on the petition for 
the final permanent injunction.

In the first place, the claim of the plaintiff for damages 
against the United States on the alleged ground of depri­
vation of property without just compensation alleges no 
grounds for relief, entirely aside from the question whether 
such alleged deprivation would be justified by reason of 
the power of Congress to enact this particular legislation. 
This is so, because such a claim for damages or recovery 
for value of property taken by the Federal Government 
must be asserted in the United States Court of Claims 
unless the amount sought is not in excess of $10,000. How­
ever, in the view we take of the law, such a suit is not main­
tainable in any event.

The real question presented by this complaint and coun­
terclaim is whether Section 201(a), (b), (1) and (c) is 
constitutional.1

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

“ (b) Each of the following establishments which serves the 
public is a place of public accommodation within the meaning



76

[fol. 117] In substance, this section of Title II declares 
the right of every person to full and equal enjoyment of the 
goods, services and facilities of any hotel or motel which 
provides lodging to transient guests if it contains more than 
five rooms for rent or hire. The section is a congressional 
ascertainment and declaration of the fact that such “an 
establishment affect (s) commerce within the meaning of 
this Title.”

Article I, Section 8, of the Constitution provides:
“Clause 1: The Congress shall have power . . . Clause 3: 
to regulate commerce with foreign nations and among 
the several states, and with the Indian tribes;” and 
Clause 18 “to make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers . . . . ”

In United States v. Darby, 312 U.S. 100, 118, the Supreme 
Court said:

“The power of Congress over interstate commerce 
is not confined to the regulation of commerce among 
the states. It extends to those activities intrastate 
which su affect interstate commerce or the exercise 
of the power of Congress over it as to make regulation 
of them appropriate means to the attainment of a legit­
imate end, the exercise of the grant of power of Con­
gress to regulate interstate commerce. See McCullough 
v. Maryland, 4 Wheat 316, 421.” 1
of this title if its operations affect commerce, or if discrimina­
tion or segregation by it is supported by State action:

(1) any inn, hotel, motel, or other establishment which 
provides lodging to transient guests, other than an estab­
lishment located within a building which contains not more 
than five rooms for rent or hire and which is actually oc­
cupied by the proprietor of such establishment as his resi­
dence; ...........
“ (c) The operations of an establishment affect commerce 

within the meaning of this title if (1) it is one of the estab­
lishments described in paragraph (1) of subsection (b)



77

Thus, it need not be decided whether the outlawing of 
racial discrimination by a hotel accepting transient guests 
may be justified on the ground that it is actually in the 
stream of commerce. The power of Congress, when that 
body seeks to occupy the full extent of its powers under 
the Constitution, “extends to those activities intrastate which 
so affect interstate commerce . . .  as to make regulation 
of them appropriate means to . . . the exercise of the granted 
power of Congress to regulate interstate commerce.” Of 
course, the initial determination of whether the challenged 
regulation is such “appropriate means” is for Congress. 
Courts may not overturn such determination unless they 
conclude that under no reasonable theory could Congress 
find them “appropriate to the attainment” of its power to 
regulate commerce.

This Court, as recently as July 10, 1964, in the case of 
Marriott Hotels of Atlanta, Inc. v. Heart of Atlanta Motel, 
Inc., C.A. No. 8832, held that the operations of Heart of 
Atlanta Motel (1) are in the stream of commerce, and that, 
in any event, (2) such operations affect commerce so as to 
[fol. 118] subject it to Congressional regulation under the 
Sherman Antitrust Act. It being undisputed that in the 
adoption of the Civil Eights Act of 1964, Congress has seen 
fit to exercise its full power as granted it under the Con­
stitution the scope of its operation in this field must, there­
fore, be taken to be at least as broad as that which it exer­
cised in the adoption of the Sherman Act. Its scope is, 
therefore, also as broad as in the legislation affecting labor 
relations under the National Labor Kelations Act. It is 
broader that that exercised by Congress in its regulation 
of wages and hours of services under the Wage and Hour 
laws.

In the specific field of hotel operations, the Supreme 
Court has ruled that the National Labor Kelations Board 
could not lawfully follow a policy of refusing to take juris­
diction over unfair labor practices and other labor disputes 
in hotels and motels as a class. Hotels Employees Local 
No. 255 v. Leedom, 358 H.S. 99. Following that decision, 
the Court of Appeals of this judicial circuit in N.L.R.B. v. 
Citizens Hotel Co., 5 Cir., 313 F. 2d 708, overruled a con­



78

tention by the Citizens Hotel Company, operator of the 
Texas Hotel in Forth Worth, Texas, that its operations did 
not fall within the constitutional reach of the National 
Labor Relations Act because it was not either engaged in 
commerce, nor did its operations affect commerce. In ar­
riving at that decision the court referred to the Supreme 
Court’s opinion in National Labor Relations Board v. Re­
liance Fuel Oil Corp., 371 U.S. 224. That case dealt with 
an attack by the local fuel oil corporation on the jurisdic­
tion of the Labor Board because, while most of the prod­
ucts sold by Reliance had been acquired from Gulf Oil Cor­
poration and had been delivered to it from without the state 
of New York, they nevertheless had been received and 
stored in the state before sales were made to Reliance. It 
was thus contended that Reliance was not engaged in com­
merce nor were its operations such as to affect commerce 
within the constitutional sense. The Supreme Court said:

“That activities such as those of Reliance affect com­
merce and are within the constitutional reach of Con­
gress is beyond doubt. See e.g. Wickard v. Filburn, 
317 U.S. 111.”

The opinion also significantly quoted from the court’s ear­
lier decision in Polish Alliance v. Labor Board, 322 U.S. 
where, at page 648, it had said:

[fol. 119] “Congress has explicitly regulated not 
merely transactions or goods in interstate commerce 
but activities which in isolation might be deemed to 
be merely local, but in the interlacings of business 
across state lines adversely affect such commerce.”

It is clear that the attack by the complainant on the con­
stitutionality of these sections of the Civil Rights Act must 
fail. It is equally clear that the United States is entitled 
to the injunction prayed for by it in its counterclaim. An 
injunction will issue in the following terms:

[fol. 120] Order—July 22,1964
The plaintiff, Heart of Atlanta Motel, Inc., a corporation, 

its successors, officers, attorneys, agents and employees,



79

together with all persons in active concert or participation 
with them, are hereby enjoined from:

(a) Refusing to accept Negroes as guests in the motel 
by reason of their race or color;

(b) Making any distinction whatever upon the basis of 
race or color in the availability of the goods, services, facil­
ities, privileges, advantages or accommodations offered or 
made available to the guests of the motel, or to the general 
public, within or upon any of the premises of the Heart of 
Atlanta Motel, Inc.

So that the plaintiff may have an opportunity to prepare 
its record for appeal and, if so advised, seek a stay of this 
order, it is Ordered that the foregoing injunction shall be­
come effective twenty (20) days from the date hereof, on, 
to-wit, the 11th day of August, 1964.

This 22nd day of July, 1964.

Elbert P. Tuttle, United States Circuit Judge, Frank 
A. Hooper, United States District Judge, Lewis R. 
Morgan, United States District Judge.

[fol. 121] [File endorsement omitted]

I n  t h e  U n ited  S tates D istrict  C ourt 

F or t h e  N o r th er n  D istr ic t  oe G eorgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

P er m a n e n t  I n ju n c t io n —July 23, 1964
Pursuant to Order and Directions by the Three-Judge 

Court in the above stated case, and pursuant to Rule 58 of 
the Rules of Civil Procedure as amended January 21, 1963, 
the following Order in the above stated case on the prayers 
for temporary injunction is hereby entered.



80

Order

The plaintiff, Heart of Atlanta Motel, Inc., a corporation, 
its successors, officers, attorneys, agents and employees, 
together with all persons in active concert or participation 
with them, are hereby enjoined from:

(a) Refusing to accept Negroes as guests in the motel by 
reason of their race or color;

(b) Making any distinction whatever upon the basis of 
race or color in the availability of the goods, services, facil­
ities, privileges, advantages or accommodations offered or 
made available to the guests of the motel, or to the general 
[fol. 122] public, within or upon any of the premises of the 
Heart of Atlanta Motel, Inc.

So that the plaintiff may have an opportunity prepare 
its record for appeal and, if so advised, seek a stay of this 
Order, it is Ordered that the foregoing injunction shall be­
come effective twenty (20) days from July 22, 1964, to-wit, 
the 11th day of August, 1964.

This the 23rd day of July, 1964.

B. Gr. Nash, Clerk of Court.

[fol. 123] [File endorsement omitted]

U n ited  S tates D istr ic t  Court 

F or t h e  N o r th er n  D istr ic t  oe Georgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

N otice oe A ppe a l—Filed July 22, 1964
Notice of Appeal of the decision of this Court in the 

above styled case dated July 22,1964, to the Supreme Court 
of the United States is hereby given.



81

This 22nd day of July, 1964.

Moreton Rolleston, Jr., Attorney for Plaintiff, 
[fol. 124] Certificate of Service (omitted in printing).

[fol. 125] [File endorsement omitted]

I n  t h e  U n ited  S tates D istrict  C ourt 

F or t h e  N o r th er n  D istr ic t  oe Georgia 

A tlanta  D iv isio n  

Civil Action No. 9017

[Title omitted]

A m ended  N otice of A ppe a l—Filed July 30, 1964
On July 22, 1964, plaintiff in the above styled case filed a 

Notice of Appeal. Plaintiff amends said notice as follows:

A.
1. Heart of Atlanta Motel, Inc., plaintiff in the above 

styled case, is the party taking the appeal.
2. On July 22, 1964, the three-judge court consisting of 

Judge Elbert P. Tuttle, Judge Frank A. Hooper and Judge 
Lewis R. Morgan, rendered a judgment in the above styled 
case and said judgment was entered of record on July 23, 
1964 by B. G. Nash, Clerk of Court. This appeal of the 
plaintiff in the above styled case is from said judgment of 
said Court.

3. This appeal to the Supreme Court of the United 
States is taken under the statute known as the Civil Rights 
[fol. 126] Act of 1964. Section 101, sub-section (h) provides 
as follows:

“An appeal from the final judgment of such Court (a 
three-judge court referred to in said sub-section), will 
lie to the Supreme Court” (parentheses added).



82

B.
4. The following portions of the record should be certi­

fied by the Clerk of the U.S. District Court, Northern Dis­
trict of Georgia, Atlanta Division, as necessary for this 
appeal:

(1) The Complaint for Declaratory Judgment, filed by 
the plaintiff on July 2,1964.
(2) Amendment to Complaint for Declaratory Judg­
ment, filed by the plaintiff on July 15, 1964,
(3) Statement of Issues, filed by plaintiff on July 15, 
1964.
(4) Stipulation of Facts, agreed to by attorneys for 
plaintiff and defendants on July 16,1964 and submitted 
to the Court at the hearing on July 17, 1964.
(5) Answer of the defendants, including Defenses and 
Counter-claims.
(6) Answer to Counter-claims and Response to Motion 
for Preliminary Injunction, filed by plaintiff on July 
15, 1964.
(7) Certificate and Request for Three-Judge Court, 
filed by defendants.
(8) Notice of Motion and Motion for Preliminary In­
junction, filed by defendants.
(9) Motion to Dismiss Second Counter-claim, filed by 
defendants.
(10) Notice of Motion and Motion to Dismiss, filed by 
defendants.
[fol. 127] (11) Judgment of the Court, dated July 22, 
1964.
(12) Transcript of the hearing on July 17, 1964 from 
the fifteenth line on page 31, beginning with “Judge 
Tuttle”, through the 17th line on page 41, said tran­
script containing all of the evidence presented to the 
Court at that hearing.



c .

5. The sole question presented by the appeal is the con­
stitutionality of the Civil Rights Act of 1964. The Com­
plaint, the Amendment to the Complaint, the Answer of 
the defendants, the Stipulation of Facts and the testimony 
of two witnesses, set forth hereinabove as part of the rec­
ord, clearly describe the existing controversy and the con­
tentions of the plaintiff. Briefly, the plaintiff contends that 
the Civil Rights Act of 1964 is unconstitutional because:

(1) Said Act violates the Thirteenth Amendment to the 
Constitution of the United States, in that, by requiring 
plaintiff to serve Negroes at plaintiff’s motel against 
plaintiff’s will, it subjects plaintiff to involuntary servi­
tude, which is expressly prohibited by the Thirteenth 
Amendment.
(2) Said Act violates the Fifth Amendment to the Con­
stitution of the United States in that it results in a 
taking of liberty and property without due process 
and for public use without just compensation, because 
it deprives plaintiff of its right to choose its customers 
and to operate its business as it sees fit, which was the 
right of the plaintiff possessed prior to the effective 
date of said Act.
[fob 128] (3) Said Act exceeds the power to regulate 
commerce granted to Congress by Article I, Section 8, 
Clause 3, of the Constitution of the United States.

This 30th day of July, 1964.

Moreton Rolleston, Jr., 1103 Citizens & Southern 
Bank Bldg., Atlanta, Georgia 30303, Area 404 
523-1566, Attorney for Plaintiff.

[fol. 129] Acknowledgment of Service (omitted in print­
ing).



84

[fol. 130] [File endorsement omitted]

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  N o r th er n  D istrict  oe Georgia 

A tlanta  D iv isio n  

Civil Action No. 9017

H eart oe A tlanta  M o tel , I n c ., a Georgia 
Corporation, Plaintiff,

vs.

T h e  U n it e d  S tates of A m erica  and R obert F. K e n n e d y , as 
the Attorney General of the United States of America, 
Defendants.

A m e n d m e n t  to N otice  of A pp e a l , as A m ended—  
Filed July 31, 1964

The Notice of Appeal, as previously amended on July 
30, 1964, is further amended by deleting from paragraph 
A sub-paragraph 3 of the Amended Notice the words “Sec­
tion 101, sub-section (h)” and substituting therefor “Sec­
tion 206 (b)”.

Moreton Rolleston, Jr., 1103 Citizens & Southern 
Bank Bldg., Atlanta 3, Georgia, JAckson 3-1566, 
Attorney for Plaintiff.

[fol. 131] Affidavit of Service (omitted in printing).

[fol. 132] Clerk’s Certificate to foregoing transcript 
(omitted in printing).



5