Opinion

State v. Brown

  • 56 Del. 571
  • 6 Storey 571
  • 195 A.2d 379
  • 1963 Del. LEXIS 164
Court
Superior Court of Delaware
Filed
Nov 6, 1963
Status
Published
On the bench
Terry
Cited by
22 cases
Authority
More cited than 12.3%

The opinion

WOLCOTT, Justice (concurring).

*586 I concur in the conclusion reached by the majority that the certified question should be answered in the- negative, but for different reasons. In my opinion the majority has considered and decided questions not raised or permitted to be raised by the certification before us.

The process of certification under Rule 20 is intended to provide a speedy final determination of a question of law upon which the decision in a pending case depends and nothing more. It is not designed, nor intended, as a substitute for an appeal from a final disposition of á case. Yet, the majority, in my opinion, has transformed this certification, into something in the nature of an appeal and has answered not only the question of law certified, but several additional questions of law not raised by the certification. This, I believe, to be an unfortunate expansion of the entire process of certification.

In my opinion, the actual question certified to us is susceptible of a short answer. Basically, the question, itself, and the undisputed facts related in the certification narrow themselves to this: May the proprietor of a restaurant, privately owned and operated, refuse service to a Negro solely because of his race and solely in reliance upon a State statute interpreted and believed by the proprietor to authorize such discrimination?

It is thus apparent that racial discrimination has taken place in reliance upon and under color of a . statute of the State of Delaware. It does not serve to construe the statute, as the majority does, as neither authorizing nor requiring discrimination. The State through its Legislature has acted and, in reliance upon that act, a private person has discriminated solely upon racial grounds. These facts, it seems to me, would lead the Supreme Court of the United. States to hold that Delaware has become involved in the act of discrimination “to a significant ex *587 tent,” and that, accordingly, the act is prohibited by the 14th Amendment. Cf. Peterson v. Greenville, 373 U.S. 244 , 83 S.Ct. 1119 , 10 L.Ed.2d 323 , and Lombard v. Louisiana, 373 U.S. 267 , 83 S.Ct. 1122 , 10 L.Ed.2d 338 . The act of discrimination being constitutionally prohibited, it follows that the State courts must dismiss a criminal trespass prosecution growing out of it.

The foregoing, in my opinion, answers fully the certified question. Accordingly, the further questions considered and decided by the majority are not necessary to the answer to the certified question, and should not have been. considered and decided. To do so is to change the entire theory of certification of questions of law, and to leave in doubt for the future what, if any, limitations are imposed upon it.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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