“As to the argument based upon the 'custom or usage' language of the statute,, we join with the unanimous decision of the Fourth Circuit in. support of the proposition that — ‘The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment-,’ ” quoting from Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845, 848 (C. A. 4th Cir. 1959)
How later courts described this case
- “As to the argument based upon the 'custom or usage' language of the statute,, we join with the unanimous decision of the Fourth Circuit in. support of the proposition that — ‘The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment-,’ ” quoting from Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845, 848 (C. A. 4th Cir. 1959)
- Bazelon and Edgerton, JJ. dissenting
Written by the judges who cited it.
The opinion
FAHY, Circuit Judge.
I concur in vacating the judgment and remanding the case to the District Court. This will afford the parties opportunity to obtain a ruling of the Virginia courts on the question of the applicability to restaurants of section 18-327 of the Virginia Code. I would require the District Court, however, to retain jurisdiction so that it may itself decide the case after such opportunity has been afforded, taking into consideration the decision of the Virginia courts if obtained, or if not obtained within a reasonable time then redeciding the case itself. The Supreme Court has approved this procedure in comparable circumstances, saying,
“By retaining the case the District Court, of course, reserves power to take such steps as may be necessary for the just disposition of the litigation should anything prevent a prompt state court determination.”
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 31 , 79 S.Ct. 1070, 1074 , 3 L.Ed.2d 1058 .