Appendix — Barr v. City of Columbia

Supreme Court brief1964

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_ APPENDIX A :

; A Discussion of Property Rights )

The ‘content of the term “property right” has greatly

changed in the past two centuries. (See Powell: on Real

Property, Par. 746). If one’ looks far encugh backward it

could fairly be said that “he who-owns may do as he pleases

with what he owns.” This is not the. present law. The’

present law of land: has hesitatingly embodied an ingredient

of stewardship; which-has grudgingly, but ste eadily, broad-

ened the recognized and protected scope of social interest .

‘in the utilizAtion of things. A property right no longer

includes a privilege in the individual owner to act. sub-

stantially to the ‘detriment of his fellow citizens.

Felix ‘Cohen, in one. of his essays published in 1960

(The Legal Conscience at 41), refers to “property” as

a “function: of inequality.” The germ of trujh in this has

present relevance for as demonstrated thronghout this Ap-

pendix our law of property has been characterized by gov-

ernmental redress of that inequality in so many instances

that for the state to permit continuation of an inequality

‘is tantamount to spsicehsan it as an expression of —

pclicy.

- So mtch of the American: interposition for the modifica-

tion .of absolute property rights is both so well entrenched.

_- and so long accepted that we sometimes fail: to recognize

- its full Significance. Property consists mainly i in (a) a power

to dispose; and (b) a —_— to use. Sea Blackstone, Comm.

1:138.

Both of these powers have bine significantly ‘curtailed

in‘the centuries which are back of us. Both of these powers .

- dre likely to be further curtailed in the years just-ahead.

* The power to dispose’of owned assets has been outstand-

tt ‘cut-down, bya). the 1 rule — tae ta ( ie the ©

WE ato. A

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76 |

law on illegal dispositions; and (c) the insistence upon for.

-Malities as prerequisites for full efficacy. Powell on: Real

Property 111839- 858. : '

-. Beginning in the late seventeenth century, the rule against

perpetuities took final form after a gestation period of a 3

century anda third as a magnificent judicially manufactured .

ingredient of the law designed to curb the power of the dead -

hand to rule the future. It placed outer limits of time on

the power of the too often assumed all-wisdom of present »

owners. Powell on Real Property 11462. .

Rooted even more anciently in feudal practices, restraints

upon thie alienation of present interests eartied invalidity.

At one time, a feudal tenant could lose the hand,. which

derogated from the overloré’s rights, by presuming to pen

‘a deed of alienation.. Modern thinking has made less drastic

the prohibited forms of alienation and has made milder the

_ penalties for overstepping established barriers; but the

. illegal where the donor

law as to illegal restraints on the alienation of property

bulks large as restrictions upon ‘what the owner of: property -

can do with that which he belieyes ne owns. Restatement

of Property §4§404-423. ~ “THlegality” is broader than the

restriction upon the alienability of property. Whenever. a

proposed provision is judged significantly to interfere with |

the long-time welfare of society, it encounters a stern pro-

hibition. In general, these situations involve efforts by the

‘owner of property to use the bait of wealth to cotrol the

conduct: of his donees. Such attempts have been found

+a. has attempted to control or to preclude ett .

Restatement of Property §§424-427, >

b. has attempted to shape an exercise of the power of

testamentary disposition; Restatement of sho tach

69428-492, oe

‘e. has attempted to iibertere with the religious. behavior

of the recipient ; Restatement of Property $4s4.

-d. has attempted to- cause. ‘departures from “normal

familial relationships ; ‘Restatement of Property §433.

e. has sought to meddle ‘with the education or-life work mn

of " recipients ; Restatement. of Property §436.

| Ng :

Such uses of "a, pti anti-social and tenes

have been fio d deserving of s bstantial curtailment.

‘More iz rtant than the power to dispose is the power

to use. As)one looks back over the centuries and decades

preceding 1963; the ever advancing’ flow of social recesign’

tions on the indiv idual’s exercise of his “privileges of *use”

becomes most impressive. :

_ When the owner of a bites parcel of land conveys an *.\

interior part, it is socially undesirable to have land which

cannot be worked, and hence the conveyor is presumed to

ave granted an easement by necessity for access to and

exit from the conveyed land. ‘Finn v. Williams, 376 Ill. 95,

33 N. E. 2d 226 (1941). The otherwise existent power to

enforce undisturbed possession is negatived, in part, by

an implied easement grounded in social policy.

When Blackacre and: Whiteacre are in the.same locality, |

the owner of Blackacre may not se use his land as to lessen

the reasonable “enjoyment of Whiteacre by its owner or

occupier, The tw elfth century assize of nuisance, (McRae,

“The Dev elopment of Nuisance i im the Karly’ Common Law,” .

1 U. Fla. L. Rev. 27 (1948)), began the curtailment.of the ’

privileges of use which ‘was essential to the maintenance»

‘of a fair standard of neighborliness-as between nearby land

occupiers. Modern. equity since the year 1800, has been

making constantly new applications of the-basic idea: that.

one must so use his own as not to injure others. W. W. ‘Cook,

"Equity in 5 Enc.-of the Social Sciences, 582-586 (1931).

_ The law of waters, whether in streams, or on the surface, ©

in underground springs, or lowering clouds, has’as a back-

drop the facts of nature. The amount and regularity of:

the rainfall, the weologic factors below the surface and the J

topographic “configuration of the surface combine to deter-

mine the total moisture available to the ‘several owners of

affected land. Powell on Real Property 1708. Considera-

. tions of social policy fix the scope of ‘ ‘reasonable use.’

‘ Courts. repeatedly assert that property rights are, and

" always have been, held.subject to the “police power”; that

is the power of the government to do that for which it exists,

namely; to impose réstrictions (without compensation ‘to

‘the owner) upon property owners whenever such restric-

. tions are found to serve the health, the safety,- ‘the morals,

the conservation of resources, or, the general welfare of.

the governed group. On this basis; the “residential” char- é

acter of neighborhoods © has been protected from “mobile

kitchens” (Eleopoulos v. City of Chicago, 3 Ill. 2d 247.

— (1954) ) ; mannfacturing areas have been protected from ex-

cessive noises (Dube v. City 4f Chicago, 7 Ill. 2d 313 (1956}),

‘a statute of Vitginia, compelling the connectidn of a private

home with the city water works system, has been uphéld’ .~

- (Weber City Sanit. Comm. v: Craft, 196 Va. 1140: (1955) ).

> Sanitary legislation began as early as 1389 (Stat. 12 Rich.

II, ec. 13).. Commissioners of sewers were established in

; 1430 (Stat. 8 Henry VI, c. 3). Building regulations received .

a large impetus from the Great Fire of 1666 in London.

The importance of safeguarding “health”- and “safety” .

gained new recognitiogs in the nineteenth century.

' ‘Building Codes are mow. a commonplace in almost every

‘community. By 1951, som¢ 2233 municipalities were listed

. eas having such codes. Building Regulation Systems i in the

United States, 1951, published by the Housing and Home ~ :

Finance Agency of the. Division of Housing Research. See-

also Note, 6 Stanford L. Rey. 104, at 113 (1953). They estab-.

Fon ee Tee at hey Ea eae)

4 os ¥ °

| lish specification’ both as to the construction and use of °

; buildings: Multiple. dwellings and tenements have require-

>» ments as to plumbing, ‘toilet facilities, air space per occu-

pant and ventilation. No property owner is-allowed to in-

dulge his fancy for ‘yard or piazza water closets (City of

Newark v. Chas. R. Co., 17.N. J. Super. 351 (1952))..Fac-..

. tories, in proportion € the number of workers employed,

: have requirements as to plumbirg, ventilation and the mini- go

mizing ‘of fire hazards, plus additional, requirements “die-

tated by the kind of work engaged i in. Powell on Real Prop-

erty 11862. Similarly circumscribed as to permissible utili-

zations of their land are mercantile establishments. Special -

requirements exist as to steam boilers, elevators, fire es-

capes, fire proofing and modes of egress. Powell on Real

. Property 1863.

In the field of morals, there’ has been a similat evolution.

Profitable houses of prostitution are no longer the privilege

of respectable property: owners.’ Note, 24° Wash. ‘L. Rev.

- 67 (1949). Obscene exhibitions ineur remedial social action.

State ex rel. Church v. Brown, 165. Oh. St. 31, 133 N; E. 2d

- 333 (1956). Gambling is generously frowned upon. See,

for example, Iowa, Code (1955) §99.1, injunction against.

gambling; §726.1, penalty for keeping a place for,gambling ;

Mass. Ann. Laws (1955) ¢. 271, §§5A, 7, 8, 18 and 23. The

_ desirabie outer limits on- pélice power regulation with re-

spect te the public morals becomes ‘less clear as’ doubts —

grow concerning the exact content of, morality and the

. efficiency of courts*or legislatures in compelling general

morality. Powell on Real, Property 1864. See also Sym-

posium on Obscenity andthe Arts, 20-Law-and Contem-

porary Problems, 53 531- 688 (1955). The areas in which active

debate is now: observable concern chiefly gambling and

sexual conduct. The fact remains that property-owners have

been, and can be, effectively debarred from any use of their

“

property found to offend public morals and such euetail-

ment of “property rights” calls for no reimbursement of |

the owner so debarred. . :

‘In tle wide open spaces of the West, there. have been _

- comparable developments. Soil consefvation districts have

adppted sometimes quite costly land use regulations whicli

must be observed by all owners in the district. Parks, Soil |

Conservation Districts in Action 13, 147 (1952). Conformity

has been’assisted'by the conditioning of land loans on pre-

scribed, social behavior. (Note, 1950 Wis. L. Rev:.716).. In

- areas devoted to cattle raising, individual owners are pre-

“vented from making short-term gains by overgrazing:

Penny and Clawson, “Admin. of Grazing Distr.,” 29 Land

Econ. 23 (1953), This has been accomplished in some areas

by conditioning permits to use public - lands needed fo

grazing on the applicant having used his privately owndd

land in a manner preserving its. long- term value. (See

Federal Taylor Grazing Ast, 43 M. S. C. A. $315 and the.

Montana Grazing Act, Mont. Rev. Code 1947, $$46- 2382).

_ Thus private ownerships are curtailed in their uses, of their

~ “owned land” so as to assure adequate continuing supplies.

_ of forage. Rural zoning: to preserve timber and ‘to accom-:

plish reforestation of eutover areas not only serve the de-

_ sirable ends of conservation, but also serve the collateral

" purpose of restori ng local tax revenues by returning land. to

the growing of timber and delaying the need for as yet un-

bearable expenses for local roads and_schpol maintenance

(See Washington’s Forestry Practices Act, discussed in /

_State-of Washington vy: Deater, 32 Wash. 2d 551 (1949) ;

Solberg, “Rural Saabid in the United States,” ae In-.

‘form. Bull. No. 59 (1952)):

waar and legislatures have resorted. to the “poliee

“power”—the general welfare of the group—in problems in-

volving ‘renters (41 Stat. 298 (1919), constitutionality sus-

tained in Bish ¥. Block, 256 U. S. 135; N. ¥. Laws 1920 cc.

~ Sieh ita eal ses eats sR 1 ised meinen dy cetacean)

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peak

81 . .

131-139, constitutioriality sustained in New York « ex rel:

Brixton. Qperating Corp. v. La Fetra, 230 N. Y. 429, 130-

N. E. 601, affd. 257 U. S. 665; see also Powell on Real Prop-

_ 9252) and werryrers dana on Real Property TAAT-

474).

The objectives of zoning center on the ‘promotion of the.

welfare of the community. It has become established since ; .

1925 that the “property i. of any lant owner are sub-

. ordinate:

"a. to the citubliahadent of iccsdoniia’ areas in. which -

relaxation and felative tranquility can - -be enjoyed, -

and in which there will be absent the vibration, noise,

smoke, odors, fumes and bustle of industry and com-,

merce; Village of Euclid v. Ambler’ R. Co., 272 U. 8.

365; MeQuillan, Mun. Corp. (3d Ed.) 1950, §§25.0

25.96-25.109; Toll Zoning for Amenities, 2 Law dad

Contemp. Prob. 266 (1955). ns eee

b. to the establishment of areas devo ted to the provision.

. of goods and services without an intermjxture of more

offensive uses ; Bartram vy, Zon. Com. of Bridgeport,

136 Conn, 89, 68 A. 2d 308 ( ); Town of Marblehead

v. Rosenthal, 316 Mass. 124, 05 N. E. 2d 13 (1944),

c. to the social need for controlling densities of popula-

tion so that the publie ‘services of transportation, bs

policing, fire protection, water and power supply and.

wasteremoval can be efficiently rendered. Symposiuim,

20 Law and Contemp. Problents 197, 238, 481 ah Li

These decisions embody a ofeginnte resnmalliation of the

conflicting pulls of the constitutional guarantee that private >

property shall not be taken without ‘compensation and the

underlying police power of any government to serve the |

social welfare. The transitional judicial] thinking on this

- .

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’

subject. is well illustrated by contrasting the District Court

in Schneider y. District’ of Columbia; 117 F. Supp. 705

_ (1953), witli the ultimate decision of es sima-cnne, Berman .

v. Parker, 348 U. S. 26. é :

As early as 1945, Mr. Justice J eer in stPessing the con-

trol of private rights by consideration uf sociu. concern -

. (U: S.v. Willow Rivér Power Co., 324 U. S. 499) had. said:

“Only those economic advantages are. ‘rights’ which

have: the law back of them . .. whetlier it is a property

right i is really the question te be answered »,

“Rights, property. or otherwise, which Re ptr

against all the world are certainly rare, and water’

_ Tights are noteamong them. Whatever rights may be

‘as between equals such as riparian owners, they are

not the measure of riparian rights on a navigable

~ stream relative to the function of the Government in:

improving. navigation. Where these interests conflict _

they are not to be reconciled as between equals, but

’ the private interest must give way to a superior right or

perhaps it would bé more acgurate to say that as against

the Government, such private interest is not a right

“at all.”

And see Cross, “The Diminishing Fee,” 20) Law and Cen

temp. Prob. 517 (1955). :

~ Thus, .the. subjectior of property rights to aaiatnn

claims is irrevocablygembedded in our law. The nature of

the claim.to be free ffom racial segregation is so compelling,

and, today, so clear, that nosproperty owner can be heard to

saw that his “inalienable,” “sacred,” right to discriminate

is somehow immune from this normal process’ and must be

sanctioned ‘and enforced by. law: If anything, an owner

should expect that the element of stewardship with which -

“all property is impressed, carries with it an obligation,

which the’ law will recognize, not to employ one’s public

facilities in a way which injures and humiliates a large

portion of the public. ;

TR ol iy co teal

"Where, alas, has g gone the “liberty” of property éwners to ©

*maintain and to operate structures which smell to high |

_ heaven; which are destructive of the lives, or health, or

safety, or welfare of customers and workers? Just where

it was bound to £0! Into the limbo. By the curtailment of

these “liberties” there has been assured the larger liberty

of society as a whole, eae,

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_ APPENDIX B

Survey of the Law in European and

- Commonwealth Countries

1. ‘France my itt -

Article 184, paragraph 2, of the French Penal . Code, |

the only provision that relates to occurrences showing some

resemblance to sit- ins, declares punishable the entry, with

the aid of threats -or violence, of the domicile of a co-

citizen. It would be inapplicable to conduct involved. in -

the case at bar for two reasons: First, an essential, ele-

’ ment of the crime is the use of threats or violence ; ‘second,

; a -place of public accommodation does not qualify as

“domicile” as that term is used in-article 184(2).

In France, a peaceful sit-in, rather than commit a crime,

has a statutorily protected right tobe served. According a

to Decree No. 58-545 of June 24, 1958 (Journal Officiel of . -

June 25, 1958), every person engaged in commercial ac- _

tivities (commercant) »is pronibited, on penalty of im-.°.

prisonment and/ér fine, from refusing service to a per-

son who in good. faith requests that it be rendered, if the

~commercant is able to render the. service in. accordance.

with normal commercial customs and no lew forbids him

from rendering it. Although, in the absence of practices

of racial discrimination, this provision has never been .

applied to situations similar to those presented in the —

present case, its broad language would appear to make

escape from its prohibitions impossible.

2. Italy

In Italy, as in France, -the penal provision: ‘protecting —

the home against unlawful entry does not cover peaceful

sit-ins in places of public accommodation. Article 614 of

ar:

" privata dimora) against the will of “the

the right of exclusion, and does not a dply to places of ©

ee se

_ the Italian Penal Code makes criminal ‘only’ entry of a

home (abitazione) or other private rée idence (luogo di

person who has

public aecommodatien. aa Alan,

Furthermore, in Italy, the Barr sit-in would have ~

_ aright to be served. Article 1336 of the Italian Civil Code,

entitled “offer to the public at large” (“offerta al pyb-

blico”), provides that unless circumstances or usage. indi-

cate otherwise, an offer to the public at large may be ac-

_ cepted by any member of the public. A term in the offer .

or contract excluding Negroes would ‘be disregarded as

violative of Italian public -policy.: Italy’s: policy against

~ racial discrimination is firmly embedded in Article 3 of

its Constitution, prov iding that all citizens are equal re-

gardless of sex, race, language, religion, political conv ic-

tion, or rena or social standing..

3. ‘Belgium

Article 439 of the Belgian Penal ‘Code’ didhais punish- f

“able the entry of a’ home, apartment, room or lodging

inhabited by someone else against the latter’s will, if-the

entry is made ‘with *the aid of threats or violence against |

persons, or by breaking, climbing in, or with false keys.

‘Article 442 qf the same code stmilarly declares punishable

whoever has entered any of the places specified ir ‘article

439 without the consent of the owner or the tenant and ‘is

found there*. during the night. Neither of these articles

apply to peaceful sit‘ins, since (1)- they are designed to

protect only a person’s homé or residence and not places

of public aecommtodation and (2) peaceful sit-ins do not’

involve nocturnal visits and are, by definition, ‘neither ac-

companied by threats or violence nor effectuated ‘by break- :

ing or climbing i in or by using false keys.

es fs .

86 ae \

It is unclear whether in Belgium a peaceful sit-in would

have the right to be served. The answer would seem to de-

pend in part on whether Article 6 of the Belgian Consti-

tution, whi¢h provides that all Belgians are equal before

the. law, also-dpplies to ihdividual, as distinguished from,

governmental, action. If it does, tad utara would be in -

“the affirmative.

- 4. The Netherlands

_ «Article 138, paragraph 1, of the Dutch Penal Code de-_

dares punishable whoever unlawfully enters the home or

the premises or homestead of someone else or whoever —

unlawfully staying there refuses to leave. Prominent

Dutch authority supports the view that this provision af-

fords protection not only against unlawful invasion of the

home, but also against unlawful entry of other premises, -

including places of public accommodation. See, e.g., 2

* Van Bemmelen d& Van Hattum, Hand-en Leerboek van het

Nederlandse Strafrecht 164-65 (The Hague-Arnhem 1954).

Nevertheless, this article would not outlaw peaceful sit-

ins, since the entry and refusal to leave of sit-ins cannot

be characterized as “unlawful.’?> Every owner of a place

of public accommodation extends an offer of service to -

members of the public. A ternt in his offer limiting it to -

members of a particular racial, group would not. be given

effect as being against public policy: As a result,,;a Negro

accepting the offer would obtain ‘a right . to be served.

Since that right would render his entry and refusal-to

leave tawful, he weuld not come within the ambit of article

138. The operative Dutch public policy is embodied in

Article 14 of the European Convention on Human Rights

to which The Netherlands is a party and which prohibits 3

discrimination on the ground of race.

;

“Since a hens by accepting the offer of. the owner of

the place of public accommodation, in effect concludes a

contract, he would, in Holland, have. a Civilly . ‘Protectéd

right to be served. ; .

5. Norway

' Article 355 of the. istieian Penal Code is similar. to |

* the corresponding Dutch provision in that it outlaws un-

Jawful entry not only of the home but also of a “vessel,

railroad cér, motor vehicle“or aircraft, or a room in any

of these or in any other enclosed place.” As a consequence,.

it would seem to protect against “unlawful” entry of places

of public accommodation. Nev ertheless, for the same rea-_

sons as those elaborated in the discussién of Dutch | law,

the entry and refusal to leave of a Negro sit-in would not

be “unlawful” and therefore not come within the ambit

of article 355.

Furthermor e, in Norway, a 1 peaceful sit-in would have

. a right to be served. Thé existence of this right follows

from general principles of contract law, under which the

person who exploits a place of pulltic accommodatian ex- .

. tends an offer of service to the public at large which may

_ be accepted by a Negro, who may disregard as violative

of public policy an. exclusion based on race embodied in

the offer. Indeed, a person who refuses service solely on

the ground of race of the person who requests it may well °

come within the compass :of Article 246 of the Norwegian’

Penal Code*which declares punishable anyone who unlaw- .

fully, in word or deed, atends another person’s feeling ©

--of personal honor..

ee]

Article 123 of the German Penal Code de¢lares punish-

able unlawful entry not only of the home,.but also of com-

mercial premises (Geschaftsrdume): It similarly makes it

a crime for someone who has no right to be there to refuse

to leave these places upon demand by the person entitled

to their use and possession. ‘There is no doubt that the ~

' broad language of this provision also covers places of public

accommodation. Nevertheless, a peaceful sit-in would not |

come within the compass of its prohibitions.

‘It isfan Qssential element of the crime of article 123 that

lawfully or stays on the,premises without having a right

"to be there.. In the case of & peaceful sit-in, that essential

element would be lacking. Two grounds support this con-

clusion.

Article 3, paragraph: 3, of the German Constitution pro-

vides that nobody may be granted a disadvantage -or ad-

vantage because of his sex, birth, race, ‘language, nationality ~

and origin, belief; or religious.or political .opinions. Al-

though there is a division of. opinion amnong Germany's

legal scholars and the problem has not yet been resolved

explicitly.by the German constitutional court, German schol-

ars of great prominence as well as the first Senate of the

Fedefal Labor Court hold this: constitutional mandate to

- be directed: not only to public officials, but also to private

individuals. See, e.g., Leisner, Grundre chte und Privatrecht

332-53 (Munich 1960) ; Nipperdey” and Boehmer in 2 New-

_ mann, Nipperdey & Scheuner, Die Grundrechte. Handbuch

der Theorie und Praxis der( Grundre ‘chte 20, 422 (Berlin

1934) ; S. H. v. M.L. F., December 3, 1954, ai eee yee

' des Bundesarbeitsgerichts: 185 (1954); Landkreis -U. v

Schwester K., March 23, 1957, 4 Entscheidungen des Bend.

esarbeitsgerichts 240 (1957). If it does cireumscribe the per-

_missible conduct of individuals, there is no doubt that a

rho has entered the premises has done so un-.

refusal of service and a, demand to leave the premises based

_ merely on race is in violation of the German Constitution

and cannot be given the effect of makirtg unlaw ful the sit- ‘in ’s

entry of, and presence on, the premises. - ‘

However, even if the constitutional provision, would not

address itself directly to individuals, the sit-in’s entry, and

B coon would not be unlawful. ‘Although older authority .

seems to support the view that places of public accommoda-

tion cannot be regarded as extending an offer to the public

at large and do no more than invite the public‘to make an

_ offer, consisting of a‘request for service, the modern opin- ©

ion, supported by prominent and most authoritativ e German

scholars, is that the question of. whether a place of public

accommodation extends an offer to the public must be an-

swered in accordance with the circumstances of the indi-

. vidual case.° For the modern view, see 1 Erman, Handkom-

_mentar zum Biiraerlichen Gesetzbuch 217-218 (3d ed. West- -

_ falen 1962) ; Palandt, Biirgeérliches Gesetzbuch 116 (21st

F ed., "Munich and Berlin 1962): 1 S# iudinger, Kommentar

zum Biirge lichen Gesetzbuch mit Finfithrungsgesete und |

Nebengesetzen 818 (11th ed. by Briind| & Coing, ‘Berlin

1957). This opinion, which favors the finding of ,an offer, —

“would clearly give the peaceful sit-in, who y aecepted the offer

by entering and ordering, a contractual right to, remain on

‘the premises and-to be served. Furthermore, even if the -

sit-in’s right to enter, to remain on the premises, and to be

_ served could not be based on f contract, it could be greunded —

on general principles of tort law. According to Article 826

_of the German Civ il Code, evéry act that is ‘contra Bnos

mores (gegen die guten Sitten) constitutes a ‘tort that cre-

ates a claim for compensation of the damages it causes.

There is no doubt that a refusal to give service based on

diserimination against the gustomer’s race alone would vi-_.

olate stahdards of proper conduct generally accepted in

_ Germany agid therefore constitute a tortious act.. Even those

a e

tye .

, 90

who oppose the direct applicability of Article 3, paragraph

3, of the German Constitution-te-private individuals agree

that its provisions make clear to what norms an individual's

conduct in society must conform. Since article 826 imposes —

on the-place of public accommodation the obligation not to.

| refuse s service merely on the basis of the customer’: s race, the

customer would have the corresponding right to enter and

_ remain on the premises... Clearly, thé customer’s ‘entry and

remaining on-the premises would be measures designed to.

protect himself against the unlawful discrimination prac-

ticed by the place of. public ‘accommodation, Since Article

227 of the German Civil Code provides that a méasure that

is necessary to defend oneself against an unlawful act is.

lawful, the customer would undoubtedly be acting law sted :

” by re and Femaining on the ange

7." England and the Comment Countries

In England, a'“sit-in” would seem: to be non- criminal,

hi because the criminal trespass laws there require force.’

In four provinces of Canada, Fair Accommodation Prac-

tices Acts. prohibit racial discriminetion an public accom-

modations,’ In the remaining provinces, it is doubtful

Ww Hether the criminal law would reach this activity.’

In India, racial discrimination in public accommodations

is — by the Constitution.

oft Reldeene. Laws of England, Criminal Law $1100 (3d. ed. -

1955) ; Rex v. Bake, 3 Burr. 1731, 97 Eng. Rep. 1070 (K, B., 1765) ;

\ Rezxv. Wilson, 8 Term Rep: 357, 101 Eng. Rep. 1432 iK B., 1799):

X\ | Rex v. Smuth, ‘5 C & P 201 (1832).

2 Saskatchewan Statutes 1956, c. 68; Ontario Statutes 1954, ¢. 28.

as amended by Statutes 1960- 61, ¢. ‘28; New Brunswick Acts 1959,

c. 6; Manitoba Acts 1900, ¢. 14.

*The closest law would seem to be the Malicious Damage Saiite,

Martin’s Criminal Code (1961), Seetion 372 (1): But the. requisite

elements of damage would seem to be. lacking here.

* Constitution of India, Article 15(2). ”

ene 8 aN

- In Pakistan, ‘the. Panne of the Constitution of 1956

‘by presidential’ proclamation in October, 1958. -apparently |

struck out a constitutional right’ to nondiscriminatory treat-

ment. When the Constitution is fully restored this Right

will be effective. However, a “sit-in” would appear not to_

come within the seope of existing criminal statutes.®

In Australia, there are either no state criminal trespass

Statutes’ or state statutes which would not reach “sit-ins’’.*

In New Zealand; a “sit -in” might be criminal,’ but there.

have been no,reported cases of a factually similar nature.

In Ghana” and Nigeria," freedom from racial discrim-

., ination is a constitutional: right. :

Only in the Union of South. Africa wou be clear that a.

“sit-in” was criminal**—and here, significantly, the racial

- element is a factor in constituting the crime.

® Article 14, Constitution of 1956.»

* The requisite intent would appear to be lacking for a violitient

of the criminal-trespass statute, Pakistan Criminal] Code, s. 441.

Rahmatullah v. State, 1958 P. L. D. Dacca 350.

* Western Australia and Queensland.

The statutes in New South Wales (Inclosed Lands Protect tion

Act, 1901-1939, s: 4) and Southers Australia (Trespassing on

Lands Act 1928) apply only to “inclesed lands”-—a very restric tive,

category. See 23 Australiaf Law Journal 357 (1949)... Victoria’s

statute—Police Offenses Act 1958, s.’ 20(3) (d)—provi ides the de- -

fense of “supposition of right”: See Martin‘ v. Hook, 5 A. L. R. 6

(1899). Tasmania’s statute—Trespass to Lands Act 1862—pro-

vides the defense of “reasonable excuse”; additionally, it may not

- be applicable to an urban setting.

- ®Police Offenses Aét 1927, s. 6A; inserted by Police Offenses

Amendment “Act (No. 2) 1952° s. 3. .

° Constitution of Ghana, Artigle . 13, Declaration of Fundamen-. »

- tal Principles. —

nu Constitution of Nigeria, ‘Chap. III, Fundamental Rights, §. 27.

12 Reservation of Separate Amenities Act, Act No. 49°f. 19538, '

8, Section 2(2), making it qn offense for a person of one race

wilfully to enter apes premises or w public vehicle set aside for

members of another race

da es No. 10.

| CHARLES F. BARR, et al,, Peyrrionzns, |

; 3 ve. ,: Nai ;

oom cep ’

SIMON BOUIE eines is d/NEAL, Perrone ve

“ory. oF COLUMBIA is

Oat Wares on Custionanrso Tae 8 = Cour

shen 3 Swen crea et aprieg A -

“BRIEY FOR RESPONDENT CITY OF COLMA

OC.

en ae JOHN W. SHOLENBERGER

x. EDWARD A.:HARTER, JR.

‘DAVID._W. ROBINSON _

THOMAS T.MOORE -

DAVID W, ROBINSON, II

Columbia, 8. C. ©

Attorneys for the Cityof

‘Colymbia -

es |S:

SE Se a

INDEX

ARGUMENT:

I. The Convictions of the Petitioners for Trespass

and Breach of the Peace by the City of Columbia

' Did Not Deny to the Petitioners the Equal Pro-

tection uf the Laws Because the City did not Par-

Sctpete in the Recision of the Drugstore Owners

Jimit Their Food Counter rvice to Persons

ly ne Race Mi Won EDead Tee. ale

* & The record is free of any evidence of discrimi-

nation by the City in the use of its police pow- -

ers, or the State in the employment of its judi.

cial system, with respect to the Petitioners. .

b. The City’s protection of the rights of Proprie-

tors under its police powers violated none of

the rights preserved for Petitioners under the -

_ . Fourteenth Amendment __.

(1) The private decisions of the Proprietors

“to refuse service to the Petitioners, whe-

ther or not diseriminatory,chie within the

permissive bounds of the’ ‘Fourteenth

Amendment cooeeecneceeerincneetne ccc cence tenes

(2) The use of the City’s aes powers, on a

non-discriminatory basis, to protect the

property rights of its citizens from unlaw-

ful trespass is consistent with the com-.

mands of the Constitution of the United

\ States and the denial of such ‘protection,

_ solely because of a customer’s race, is for-

bidtien by the Fourteenth Amendment _

o ‘3 - Page

STATEMENT __ se Le :

SUMMARY OF ARGUMENT

pee INDEX—Continued

Page"

¢. The convictions i in Barr v. City of Columbia in- °

volves no circumstances of official coercion. _.. 19

‘ II. The South Carolina Supreme Court has not Con-

sidered or Passed upon the Application of the Due

‘Process Clause of the Statutes Involved ........ 22

‘a. This Court, in reviewing a decision of ‘the

_South’ Carolina Supreme Court, has no juris-

_ diction to consider questions not raised or ;

passed upon gf, Ree meen ers 22

b. Whether or not the acts of Petitioners sciahh

them within the prohibitions of the statutes

under which they. were charged was not raised

or briefed to the South Carolina or Court

' and was not decided by that Court _ 27

II. The Records before the South Carolina Sis 2

Court Support Petitioners’ Convictions aaa 30

a. Trespass _ A

b. Breach of t the F Peace. Ct GA a

ee a ieee 34

APPENDIX A: City of Colwmbia,v. Barr, Appellants’ :

‘ Brief ee FA

APPENDIX B: City of Columbia v. Bouie; Appel-

) lants’ Brief _ CD |

TABLE OF VASES

‘

“ hieaai v. Wolverton, (Va. 1946) 184 Va. 943, —

96 S.E. Ond 906 eee

hotties: v. Connolly, 113 U.S. oT | sedeabbatebaati ic ilediens

. Barrows v. Jackson, 346 U.S. 249. :

_. Booker v. Grand: Rapids ities ee | 156

__ Mich. 95, 120 N.W. 589 _ “th

Boynton v. Virginia, 366 U. S. 454 _ :

Brown V. Meyer amataty vilk Co., 150 Kan, 931,

96 P. 2nd 65F - sian sc caer! %

Buchanan v. Warley, 245 U.S/

Burton. v. bibsorstouhins Parkin pathority, 3 365

U.S. 715 -

Cantwell v. Comnaetiout: 310 Uv. S, 296 .

Central Union Tel. v. Edwardsville, 269 U. Ss. 190

City of Greenville v. Peterson, 239.S.C. 298, 122

S.E. 2nd 826 es. ts

-Civil Rights Cases, 109 U.S.3

Coleman v. Middlestaff, 147 Cal. App. “2nd Supp.

833, 305 P. 2nd 1020 _

Columbia v. Barr, 239 S. C. 395, 123 S.E. 2nd 521°

Columbia v. Bouie, 239 S.C. 570, 124 S.E. 2nd

OE ocean

De La Ysla v. Publix Theatres Corp... 82 2 Utah § 598,

26 P. 2nd 818

. Dorrancev. Pennsylvania, 287 U.S. 660 _

“— Printing Frege Co. v. vaeng, 254 U. *

443

Echols v. Seaboard Air Line ssid Co., ‘174

S.C. 587, 178 S.E. 139 _

, Edelman v. California, 344 U. s, 357 ..

Feiner v. N. Y., 340 U.S. 315

Fletcher v. Coney Island, 100 Ohio Appeais 259,

136 ” E: 2nd 344 -

? ti

: TABLE OF CASES—Continued

| 0 : - Page

Garner v. lecidens 368 U. Se cies a 17, 33

Gober v. The City of Birmingham, 373 U.S. 374 _ 11

Goff v. Savage, 122 Wash. 194, 210 P. 374 tee fe

‘Griffin v. ‘Collins, 187 F. Sup. 149 (D. Md. 1960) 10, 15

Hernandes v. Texas, 847'U.S. 475 Sa eal

Hodge. Drive-It-Yourself Co. v. Cincinnati, 284 |

. US. 335 - eK

Horn v. Illinois Central Railroad Co., 327 Tl. App.

- 498, 64 N.E. 2nd 574 - ; 11

: Hucks v. Sellers, 236 S.C. 239, 113 S.E. ‘2nd 153 24

Hulbert v. Chicago, 202 U.S. 275 - a ee

f _ John v. Paullin, 231 US. 583 ks nel | 27

* Liggett Co. v. Baldridge, 278 U. S. 106 - $2." 15 ©

. . Lombard v. Louisiana, 373 U.S. 267 contd 17, 22

Louisiana v. Texas, 176 U.S. ; oe 12

Madder v. Queens County See Club N. i: oe

.. 1947, 296 N.Y. 249, 72 N.E. 2nd 697 - “a 10

Marsh v. Alabama, 326 U.S. 501 _ 17

Marrone v. Washington Jockey Club, 227 U.S. 633. 9, 10

* McGoldrick v. Comragnie General wiliyrierrsengs. -

309 U.S. 430 _.... end REC as eae? 25

Musser v. Utah, 333 Te pelea deane ee)

National Union of van Cooks and Stewards v. _ )

Arnold, 348 U.S Hee oe rat See ne iO ke 8

Ochoa v: os 230 U.S. 189 _. PEA CRe Lb

‘People v. Phillips, 284 N.Y. 235, 30 N.E. 2d 488 _ 33

Peterson v. City of Greenville, 373, U.S. 244 9,11, 17, 22

Priester v. Priester, 131 S.C, 284, 127 S.E. . 24

Queenside Hill a Company v. Saxl, 328 US.

80 . BGM ete 8

Quinlan ' v. Coon County, 205 U. S. 410 aie. 12

R. H. Stearns Company v. U.S., 291 U.S. 54 _.. 12

Seegars v. WIS-TV, 236 S.C. 355, 114 S.E. 2d 502 24

TABLE | OF CASES—Continued .

; Page

Shelley v. Kraemer, 334 U.S. 1 __-. -___.6, 14, 15, 16

Shuttlesworth v. Birmingham, 373 US. __,.10L. ,

SS eC a ace Ea OT 2, ee

Slack v.. Atlantic White Tower System, Inc., 284

F. 2d 746 (4th Cir. 1960) —* 181 F. :

Supp. 124 (D. Md. 1960) - a estas «10.

Slaughterhouse’ Cases, 16 Wall 36 _ : pce aie 13, 17

Sriowden v. Hughes, 321 U.S. 1 __.. Ne DUETS 1,42

' State v. Clyburn, (N.C. 1958) 101 S.E. 2d 295. _ 10

State v. Edwards, 239 S.C. 389, 123'S.E. 2d 247 | 32

State v. Van ‘Allen, 140 Conn. 586,102 A2d 526. — 38

‘Sunday Lake Iron Co.v. Wakefield, 247 U.S. 350 .. 7

‘Terminal Taxicab Co. v. Kutz, 241 U.S.:252 10

Terrell Wells Swimming Pool v. ee (Tex. © .

App.) 182 S.W. 2d 824 _ See cas 10

’. Thompsen v. Louisville, 362 US. Re 17,33

Traux v. Corrigan, 257 U.S. 312 on Tee ge

Turner y. City of Memphis, 369 U.S. 19 lie - 9

Tugner v. Yates, 16 Howard 14 - rent spe 12

United States v. Arredonlo, 6 Pet. 691 . ees 12

United States v. Chemical Foundation, oT Uz S. x; 12

United-States v. Cruikshank, 92 U.S. 542 _ : 9

United States v. seat 213 F. 2d 53 ( 3rd Cir.

2 gk ae ee:

, Western Turf Assn. v. Geslitecs: | 204 U.S. 359°. 8,10

Williams v. Howard Johnson’ s Restaurant, 268 F.

; 2d 845 4th ee ee lee re” 11

-Yakus:v. United States, 321 U.S. 414 a ina 26

- Younger v. Judah, 111 Mo. 303, 19 S.W. 1109 | 10

o STATE STATUTES

Section 15-909, 1952 Code of Laws of. South Caro- ~

—T 3, 32.°

Section 16-386, 1952 Code of Laws of South ‘Caro-

li eek Ss J oe

ce sae | , oS :

a ra ie lll ) eee? eee rr @

\ v .

ee eT ee) ne ee eae

e -

TABLE OF CASES—Continued —

OTHER CC

9 ) 379 Annotated - PO Se tO

CJS 616 - See :

‘Public Ketentacistiins Bill, "eathininny of ‘Rob

- ert F. Kennedy Hearing before the Committee

of Commerce, U.S. Senate, 88th Congress, First

Session on § 1732, Part 1; page 74, July 1, 1963

Supreme Court of South Carolina, Rule 8 §2

Supreme Court of United er Rule 10, —_

graph 2 .. ‘SSA Be se

12.

In The

Supreme Court Of The United States -

OCTOBER TERM, 1963

No. 9

CHARLES F. BARR, et al., PETITIONERS,

V8.

CITY OF COLUMBIA

No. 10 ;

‘ SIMON BOUIE aaa TALMADGE J. N EAL, PETITIONERS,

' U8.

CITY OF COLUMBIA .

ON.WkITs OF CERTIORARI TO THE SUPREME COURT

OF .THE STATE OF SOUTH CAROLINA

-STATEMENT

These cases arise out of convictions of the Petitioners in

the City Recorfier’s: Court in Columbia; South Carolina,

for trespass and breach of the peace in connection with

“sit-in”- demonstrations at the lunch counters of two pri-

vate drug stures. The relevant facts in each case are quite —

‘similar and, for the most part, are fully summarized in the

cpinions of the South Carolina pupee eme Court, from which

we quote. .

t. Barr v. City of Columbia

“The charges grew out of a ‘sit-down’ demonstration

staged by appellants at the lunch. counter: of. the: Taylor

yA . .

: PA) 7 ae

vee

ee en

a ee

. .

ee aa os

. Street Pharmacy in the City of Columbia, a privately owned

business. In addition to.selling articles usually soid in drug

stores, this establishment maintains a lunch counter in the

rear, separated from the front of the store by a partition.

Thé customers sit on stools. The policy of this store is not to

<erve Negroes at the luneh counter although they are per-

.litted to purchase food and eat it elsewhere. In a sign |

' posted the privilege of refusing service to any customer

was reserved...

“Shortly after noon on March 15, 1960, sacle, then

college students, according to a prearranged plan, entered

this drugstore, proceeded to the rear and, sat down at-the —

lunch counier. The management had heard of the’ proposed

demonstration and had notified the officers. To prevent -

violence, three were present when appellants entered. As

* soon as they vook their seats several] of the customer's at the

counter, including a White woman next to whom.one of ap-

pellants sat, stood up. The manager of the store then came

back to the lunch counter. He testified that the situation

was quite tense, that you ‘could have heard a pin drop in

' there’, and that ‘everyone was on pins and needles, more or

less, for fear that it could possibly lead to violence.’ He im-.

mediately told appellants that they would not be served and

_ requested them to leave. They said nothing and continued

Co sit At the suggestion of one of the officers, the manager

then spoke to each of them and again requested that they.

leave. One of them stood up and inquired if he could ask

a question. As this was done, the other four appellants ~

arose. The manager replied that he did not care to enter

into a discussion and a third time told appellants to leave.

Instead of doing.so, they resumed their seats. After wait-

ing several minutes, the officers arrested all of them and :

took them to jail. :

“The foregoing summary is tices from the testimony G

offered by the State. Only two'of the appellants testified.

They denied that the manager of the store requested them

to leave. They testified that an employee at the lunch coun-

. Bie; e. =

ter stated to them, ‘You might as well leave because I ain’t

going to serve you’, which they did not ‘construe as [fol. 66]

a specific request. [Barr R. 26, 29, 32-33] They said after

it became apparent that they were not going to be served,

they voluntarily left the lunch counter and as they pro- ©

ceeded to do so, were arrested. They denied that any of the

White customers got up when they sat down, stating that

‘these customers did so only after the employee at the lunch

: a said: ‘Get up, we will get them out of here.’ [Barr

R. 25]” Columbia v. Barr, 239 S. C: 395, 397, 123 S. E.

(2d)+521, 522, 523.

In addition, the’ two Pétitioners testified that they had

previously made purchases in the store, Barr R: 25, 34,.

_ and one said he had purchased food at the lunch counter to

take out. Barr R. 34. Both stated that on this occasion their

_sole purpose imentering the store was to be: served food-at -

’ the aie"

rr R. 25, 31, 36. .

Based on this evidence, the Petitioners were convicted of

| Trespass under Sec. 16-386 of the 1952 Code.of Laws, of '

South Carolina and Breach of the Peace under Sec. 15- 909

of the 1952 Code of Laws of South Carolina. Each was sen-

tenced to pay a fine of $100.00’ or serve 30 days in jail on

_each charge, with $24.50. of each fine being suspended.

Barr R. 42. The Richland County Court affirmed the con-

viction. Barr R. 46-51. The South Carolina Supreme Court

refused to consider, as too vague, exceptions directed to the

merits of the convictions. Barr R. 55-56. That Court ag-

firmed the lower Court’s decision oni the question of whether

the City’s actions denied Petitioners equal protection under

the Fourteenth Amendment. Barr R. 56. Columbia v. Barr,

239 S. C. 395, 123 S. E. (2d) 521.

-2. Bouie v. City of Columbia

“The appellants Simon Bowie and ‘Valente J. Neal,

Negro college students, were arrésted on March 14, 1960,

and charged with trespass (Code 1952, Séction 16-386 as

amended ) and breach of the peace (Code, 1952, Section

15-909). Bouie was also charged with resisting arrest. On

March 25, 1960, they were tried before the Recorder of the

City of Columbj a, without a jury. Both were found guilty . |

of trespass; Bowie guilty also of resisting arrest. Bouie

- was sentenced to pay a finé’of one hundred -( $100. 00) dol-

lars or to imprisonment for thirty (30) days on each charge,

_ twenty-four and 50/100 ($24.50) of each fine being sus-

pended and the prison sentence to run consecutively. Neal

was sentenced to pay a fine of one hundred ($100.00) dol-

lars, of which twenty-four and 50/100 ($24.50)..was sus-

pended, or to imprisonment for thirty (30) days. On appeal -

to, the Richland County Court the judgment of the Record-

er’s Court affirmed by order dated April 28, 1961,

- from which this appeal comes.

“Eckerd’s, one of Columbia’s larger drugstores, in addi-

tion to selling to the general public drugs, cosmetics and

other articles usually sold in drugstores, maintains a lunch- . ©

eonette department. Its Sage is not to serve Negroes in

that department.

“On March 14, 1960, about noon, the appellants entered

this drugstoré and sat down in a booth in the luncheonette

department for the purpose, according to their testimony, of .

ordering food and being served. Neal testified that it was

his intention to be arrested; | Bouie R. 35] Bouie testified

that he knew ofthe store’s policy not to serve N egroes in

that department, and that it was his purpose also to be ar-

rested ‘if it took that’: [Bouie R. 45] No employee of the

_ store approached them, and they continued to sit in the

beoth for some fifteen minutes, each with an open book ,

before him, When the manager of the store came up, in

company with a. police officer, told them that they would

not -be served, and twice requested them to leave. Upon

their ignoring such request, the police officer asked them

to leave, which request brought no result other than the

query ‘for what’ from Bouie, The police officer then told

them to leave and that they were under arrest. Thereupon

Neal closed his book and got up; Bouie-did not, and the -

officer thereupon caught him by the arm-and lifted him out

of the seat. Bouie’s book being still on the table, he was per- |

mitted to get it; and the officer then seized him by the belt

and proceeded to march him out of the store. Bouie testi- :

_ fied that he made no resistance, but only said to the officer

when the latter had hold of his belt, ‘That’s all right,

- Sheriff, Pll come on’. [Bouie R. 42] The officer testified

_that Bouie said: : ‘Don’t hold me, I’m not going anywhere’,

and that afver they had praceeded a few steps he “started -

pushing back and said “Take your hands off me, you don’t

have to,hold me..’” [Bowie R. 4] Columbia v. Bouie, 239.

S. C. 570, 572, 573, 124 S. E. (2d) 332.

- The South Carolina Supreme Court reversed the convic-

_ tion of Bouie for resisting arrest and affirmed both trespass

convictions. Columbia v. Bouie, 739 8. © 570, 574, 124 S. E.

(2d) 832, 333.

- SUMMARY OF ARGUMENT

Neither the action of the City of Columbia i in arresting -

and convicting the Petitioners for trespass or for breach of >

the peace nor the action of the South Carolina Courts in

affirming these convictions deprived any penne of equal

protection. .

The conduct of the Propr ietors of priv ately owned drug -

stores in limiting service at its lunch counters to members

of one race and in declining counter service to .those of an-

other race “* * * does no violence to the Equal Protection

Clause.” Burton v. Wilmington Parking Authority, 365

U.S. 715, 722. The action of City or State officers in’ar-

resting Petitioners after they have violated the state tres-

pass and breach of peace statutes by refusing to leave pri-

vately owned property, after timely requests from the Pro-

prietors to leave, does not make the state a participant in

‘the Proprietors’ decision not’ to serve the Petitioners at its ©

lunch counters.

~h—-

NVR Ldn Paks I

The use of the judicial machinery of the state in convict-

ing Petitioners of trespass and ‘preach of. the peace does not

constitute state action denying the Petitioners equal protec-

tion within the meaning of Shelley v. Kraemer, because in

. Shelley the state court participated in the deeision to ‘dis-

criminate by choosing to enforce the racial covenant rather

than the Negro plaintiff's property right, while in Barr

and Bouie the decision not'to serve the Petitioners was made

by private individuals.

The commands of the Fourteenth Amendment a not re-"

quire a state to prohibit private ssa aaaig by. its

citizens. _

In order for the Court to concilec! the question of whether tea

a state statute is so vague as to deprive a defendant in a

cr iminal case of due process of law or the question of wheth- —

er the evidence was sufficient to convict the questions must ©

have been raised and preserved in the ‘state court. “This ©

Court is without power to decide whether constitutional °

rights have been violated when the federal questions are

not seasonably raised in accordance with the requirements

of at law.” Edelman v. California, 344 U.S. 357.

"lil -~*

The evidence presented in both Barr and Bouie was suffi-

cient.to support the convictions of each of the ie tpeneceser for’

trespass and for breach of, the peace.

ARGUMENT

| Bare :

THE CONVICTIONS OF THE PETITIONERS FOR

TRESPASS AND BREACH OF THE PEACE BY

' THE CITY OF COLUMBIA DID NOT’ DENY TO

THE PETITIONERS THE EQUAL PROTECTION

. OF THE LAWS BECAUSE THE CITY DID NOT

PARTICIPATE IN THE DECISION OF THE DRUG;

STORE OWNERS TO LIMIT THEIR FOOD COUN-

TER SERVICE TO PERSONS OF ONLY ONE

“RACE. ?

a. The record is free of any evidence of discrimination by: .

the City in the use of its police powers, or the State in the —

employment of its judicial wei with a rye to the

Petitioners... ‘ EF

The record is completely vid. of any evidence of discrim- |

_ ination by the City in the use’ of its police pow ers to enforce

the Trespass Statute. To the contrary, the evidence clear-

ty indicates that Petitioners were arrested because of their

__status as trespassers, not because of their race." .

Certainly, there is no evidence of any deliberate or inten-

tional discrimination against Negroes in enforting the Tres-

pass Law; which this Court has heretofore found necessary

to constitute a denial of equal protection.

The unlawful administration by state officers of a

state statute fair on its-face, resulting in its unequal —

application to those who are entitled to be treated alike,

is not a denial of equal protection unless there is shown

_ to be present in it an element of intentional! or purpose-

- ful discriniiriation . . [A] discriminatory purpose

‘is not presumed | citations omitted]. There .must be—

a showing of “clear and intentional discrimination.” |

. [A] mere showing that Negroes werg not includ-

ed i in a particular j jury is not enough; there must be a |

‘showing of actual discrimination because of race.

Snowden v. Hughes, 321 U.S. 1, 8-9.

In the absence of such a showing, good faith of the police

officers in the administration of their duties is presumed.

Sunday Loke Iron Company v. Wakefield, 247. U. S. 350;

Barbier v. Connolly,°113 U.S. 27. ;

Petitioners have made no showing that the Trespass Law

r admittedly fair on its face, Pet. Br. p. 44) either has been

or would have been enforced differently as to others, regard-

ess of their race, simi! arly situated who refused to leave the

——

*Q. Chief, did you. personally have any objection to these defendants sitting

— they were seated? . ' on gg : ‘

Personally, no. niet

3. So it didn’t make any difference to you where ree sat?

A. No sir, not from a police standpoint. ( Bouie 15)

See also Barr 6, 13, 16.

Awa MRT FA PS RO LE SS BITS CG LPNS LON ONE eT ee eS ee Oe LET LED Ps OO EN me eS

hea -

ve.

premises on the Proprietor’s request. Absent such a show-

ing, neither the statute itself nor the City’s enforcement

can be deemed in violation of Petitioners’ rights under the

Fourteenth Amendment. National Union of Marine Cooks

*»

and Stewards v. Arnold, 848 U. S. 37; Western Turf Assc-

ciation v. Greenberg, 204 US. 359. - -

Nor is there any merit in Petitioners’ suggestion that the

law would .not be equaiiy effective in its operation as to

other similarly situated. (Pet. Br. p. 44) Clearly, a white -

“person in Petitioners’ position would be subject to prosecu-

tion. -In any event, a “claim of repugnancy to the equality

clause cannot | pported. by mere -speculation or conjec- |

ture.” Hodge Drive-it-Yourself: Company v. Cincinnati,

284 U.S. 335, 338. See also Queenside Hills Realty Com- -

‘pany v. Sax!, 328 U.S. 80.

Finally, . there is no evidence of a denial of’ “equal protec-

tion” or “due process” in the prosecution of the charges

- against the Petitioners through thé courts of South Caro-

lina. In each case Petitioners were awatded a complete and

impartial hearing at every level of the State judicial

machinery.

Thus, the record is ieee of any evidence of a denial of

- equal proiection by the City or the State in the entforee-

_ ment of tie South Carolina Trespass Act.

b. The City’ s protection of tRe “rights of Dropristors: un-

der its police powers violated none of the rights preserved’

fer Petition ers under the Fourteenth Amendment.

(1) The private decisions of. the Proprietors to refuse service to

— the Petitioners, whether or not® discriminatory, lie within: the

permissive bounds of. the Fourteenth Amendment.

The decisions of the Proprietors to refuse service to Pe-

_ titioners in their private establishments were made as pri-

vate citizens. Since its enactment, this Court ‘has consist-

, ently. and repeatedly construed the Fourteenth Amendment

as never having been intended to prohibit such private

choices, whether or. not: discriminatory.

Its, {Fourteenth Amendment] sole purpose was to

declare to the several states, that whatever those rights,

.as you grant or establish them to your own citizens, or

as you limit or qualify, or impose restrictions on their

exercise, the same, neither more nor less, shall be the

measure of the rights of the citizens of gther states

within your jurisdiction. Slaughterhouse Cases, 16

Wall-36, 77. [Emphasis added. |"

‘The Fourteenth Amendment prohibits; a State:from.

depriving any person of life, liberty or property, with-

out due process_of law; but this adds mothing to the

rights afin ie against another. U. % v. Cruik- - .

shank, 92 U.S, 542, 554.* [Emphasis added. ] VE

Among its first decisions after the enactment of. the

Fourteenth. Amendment, this Court was faced with the

identical question raised here—the extent of the right of

proprietors of private establisnments, under that Amend-

ment, to discriminate if they saw fit among their customers.

In The Civil Rights Cases, 103 U.S. 3, this Court squarely

decided that proprietors of private establishments had every

right, under the Fourteenth Amendment, to choose their

customers on any. basis they. saw fit, whether or not dis-

criminatory: er wrongful, and, in so holding, said:

‘In this ‘connection “it ‘is proper to state that civil

rights, such as are guaranteed by the constitution .

against state aggreSsion; cannot be, impaired by. the

wrongful acts of individuals, unsupported by state au-

thority/in, the shape of laws, customs or judicia} or exe-

cutive proceelings. The Wrongful act of an individual,

unsupported by any such authority is simply a private

wrong, ora crime of that individual . . . p.17

J Emphasis added.| e

cr See for example has “ab Rights Cases, 109 U.S. 3; Marrone v. Washington

Jockey Club, 227 U.S. 633; Buchanan » Warley, 245 U.S. 60; Burton v. Wil-

_ mington Parking. Authority, 365 0.5. 715; pwns re vu. City of Memphis, 369

U.S. 19; Peterson v- City of Greenville, 373 Uors. 244.

Seka WT CAVIAR NE SACRE AOR BRCET ORG T OLE MENNLE ARS SAL MEL SUA POR BID ES SEF

, i

That this case is controlling of the issues raised as to the

violation of the Petitioners’ “equal protection” rights under

the Fourteenth Amendment is recognized in their request

, that it be overruled as to this holding. However, its contin-

. wing! force and validity was reiterrated as recently as April

1961 when, in the language of Justice Clark, this Court

said: |

The Civil Rights Cases . aie “embedded i in our con-

stituticnal law” the principle that the action inhibited

by the first Section (Equal Protection Clause] “of the

Fourteenth Amendment is only such action as may

fairly be said to be that of the States. That Amendment

a: erects no shield against merely private conduct, how-

ever discriminatory or wrongful . . . Burton v. Wil-

_mingion Parking Authority, 365- U. S: 715, 721.

{Emphasis added.| _~

This right of the private proprietor to determine his.cus-

. tomers has been sustained by this Court on several occa-

sions. Terminal Taxicab C ompany v. Kutz, 241. U. S. 252

(private automobile leasing business per Justice Holmes) :

“

* sha Spats da, en

¥ :

Marrone v. Washington Jockey Club, 227 U. S. 633 (race:

track proprietor) ; Western Turf Association v. Greenberg,

supra (race track proprietor). Likewise, other courts have

“consistently upheld the proprietor’s right, under the Four-

teenth Amendment, to discyiminate among his customers.

Slack v, Atlantic White Tower System, Inc., 284 F, 2d 746

(4th Cir. 1960) affirming 181\F. Supp. 124 (D. Md. 1960) ;

_ Williams v, Howard Johnson's Restaurent, 268 F. 2d 845°

‘(4th Cir. 1959) ; State v. Clybarn, (N. C. 1958), 101 S. E.

2d 295; Modden v. Queens County Jockey Club, (N. Y.

. 1947), 72 N. E. 2d 697; Alpaugh v. Wolberton, (Va. 1946);

36S. E. 2d 906; Griffin v. Collins, 187 F. Supp. 149 {D. Md:

1960). Sée also Terrell Wells Swimming Pool v. Rodriquez,

(Tex.) 182 S.W. 2d 824; Booker v. Grand Rapids Medical

“Colleve, 156 Mich. 95, 120 N.W. 589; Younger v. Judah; 111

Missouri 303, 19 S. W. 1109; Geff v. Savage, 122 Wash. 194,

210 P. 374; De La Yslav. Public Theatres Corporation, ,

82 Utah 598, 26 P. 2d 818; Brown v. Meyer Ditton Milk

Company, 150 Kan. 931, 96 P. 2d 651; Horn v, Illinois Cen-

trai Railroad Company, 327 Tli. App. 498, 64 N. E. 2d 574;

Coleman v. Middlestaff, 147 Cal. App. 2d Supp. 833, 305 P.

_ 2d\1020; F letcher v. Coney Island, 100 Ohio App. 259, 136

N./ E, 2d 344. Annotation, Right to rae Customer from

S ve, 9 ALR 379. :

(- Even in its decisions of the previous term, which extend

| the doctrine of “state action” to its outermost limits, this

\ Court was careful not to infer that the proprietor’s right to

\refuse service was in any way restricted under the Four-

teenth Améndment. Avent v. North Carolina, 373 U. S.

375; Gober v. The City of Birmingham, 373° U.S. 277;

Lombard v. Louisiana, 373 U. S. 267; Peterson v. City of .

Greenville, ‘373 U.S. 244. Instead, the Court was careful,

in| \each‘case, to ground its decision on a state statute, citly

ordinance, or other official action which effectively prevent-

ed the free exercise of private choice. The records here are °

devoid of such state or official restriction. on the private

decisions of the Proprietors.

Petitiéners recognize this fatal shouans of any state or .

7 cfficial coervion ifi these records and seek to. substitute, in

' - lieu thereof, as restricting such free choice, “custom.” (Pet.

Br. 25:33) This “custom” they, would, in turn,’trace to .

state law for its source and origin, thereby finding state.

“coercion” of the Proprietors in their decisions not to serve >

the Petitioners. Examination of this novel doctrine reveals

its weaknesses.

Xu The customs of the wees of a state do hot consti-

tute state action within the prohibition of the Four-

teenth Amendment. Soper, Circuit Judge. Williams v.

Howard Johnson’ 8 Restaurant, 268 F. 2d 845, 848,

Furthermore, ‘her record contains absolutely no stidiinbe

of any widespread “custom” of discrimination at lunch

counters in the City of Columbia- which can be, traced to

r /)

state law.” None of the South Carolina statutes cited by

Petitioners (Pet. Br. p. 30) require such segregation and

no discriminatory requirements can be found in the City of

- Columbia Ordinances.* Nor have Petitioners cited any pre-

existing Acts of the South Carolina Legislature which could

have constituted the origin of’ such “custom.”® In fact, the

record shows that Petitioners were, and had been for some —

time, freely served in other departments of the Proprietors’

stores and had received food at the lunch counters to take

out. (Barr R. 25, 34. Bouie R. 27,43). *

Even if such a “cuistom” did exist, among the basic pre- -

cepts of our jurisprudence are those which recognize that

custom is oue of our principal sources of law, U. S. v. Ar-

- redonlo, 6 Pét. 691, 714-715; 15 CJS 616, and that our

democratic governments and their laws are the products°of

. the choices of our citizens, not vice versa as Petitioners. cén-

" ‘tend. (Pet. Br. p. 28) While Petitioners’ proposition might.

be true in the case of some modern totalitarian systems, the

reverse is not-yet true under our democratic structure. Cer-

tainly, to attribute-to the state, in the absence of any affir-

-Mative State coercion, the Constitutional responsibility for

the private decisions of its citizenry, if concurred in by suf-

cient number to constitute ag “custom” would ‘indeed

* Clearly, the. existence of a City Ordinance in the Town of Greenville, South

Carolina, does not create a “eustom” in Columbia, as Petitioners suggest. (Pet. iris

Br. p. 29-30).

‘ Petitioners’ authoritiese would indicate that no such custom ever existed (Pet. ;

Br. p.

5 In this connection, Petitioners would attribute to the City the responsibility

any pre- existing state legislation on the subject of segregation, even though

no longer in effect. (Pet. Br.-p, 26)

* If such * ‘custom” exists, Petitionets would place the burden on the Proprie-

‘tors to prove that their choice was not because of “custom’— ie., that tlfe

-Proprietors’ preferences were for personal reasons, ‘and ‘not because of the con-

taking, which must necessarily reflect the” preferences of a majority of his ~

presumption of the Constitutionality of the conduct in question. See e.g., Her-+

rrence of the majority of their fellow citizens. But what basis of such a

decision to’refuse ‘Petitioners service, could be inore “personal” to a proprietor:

a restaurant’ or iunch counter than that of the business success of his under-

stomers. In any event, such an approach is in conflict with the long established

nandes v. Texas, 347 U.S. otf Snowden v. Hughes, supra; R. H. ey

Company v. U.S., 291 US 5

U.S. v. Chemical Foundation, 272 U.S.

urner v- Yates, 16 Howard. 14.

, sannseaags v. Green County, 205° U. S. 410, Lowtsiana v., Texas, 176 U.S. re

_ . transfer the, urity and protection of all civil

rights which we have mentioned from the states to the fed-

eral government .. .” and “fetter and degrade the state

‘governments by subjecting them to control of Congress, and

the exercise of powers heretofore universally conceded to

them of the most ordinary and fundamental character

’-and further “ . .. .radically change[s] the whole

theory of the relations of the state and federal governments

“to each other and of both these governments to the people —

” a step which this Court has refused totake. Slaugh- °

‘terhouse Cases, 16 Wall 36, 77-78. =...

However, even if we assume the correctness of the Peti-

tioners’ proposition that the state is responsible for the “cus-

toms” of its people, what Petitioners are really ng is

that if a majority of the citizens of a given locali ncur

in the Proprietors’ private decisions, then those decisions

are not of the Proprietors’ free choice, but are rather the

result of “ -action” (or inaction), and therefore, if —

based on racial considerations, prohibited by the, Four-

teenth Amendment. If, however, those decisions are not con-

curred in by sufficient members of the locality such as to be

deemed a “custom,” even though they be based on eonsider-

-ations of racial discrimination, then they lie within the per-

missible bounds of the Fourteenth Amendment.

_ We respectfully submit that no such result was ever in-

- tended by the framers of the Fourteenth Amendment and

that nothing therein prohibits.the private decisions of“the

’ Proprietors reflected in these records in no way influenced

by the Statt of Sorfth Carolina or the City of Columbia.

(2) The use of the City’s police powers, ona non-discriminatory

basis to protect the property rights of its citizens from unlawful

trespass is consistent with the commands of the Constitution of

. the United States and the denial of such protection, solely be- ‘

cause of a customer’s race, is forbidden by the Fourteenth

J. ; .

sar tl eS te

‘Beyond question, the businesses of the lunch counter pro-

prietors constitute property rights in every sense, entitled

to protection from unlawful,injury or interferencé. Truax

“9.

v. Corrigan, 257 U.S. 312; Duplea Printing Press Company

v. Deering, 254 U.S. 443. The decisions: of the Proprietors

to refuse service to Petitioners, whether or not discrimna-

tory, were inade in the ordinary condtet of their busifiesses .

and constitute, as heretofére shown, lawful exercise of their

property rights in connection with these businesses. —

That the protection of such property rights was one of the

basic purposes of the Fourteenth Amendment has’ frequent- . -

ly been recognized -by this Court,,as has the obvious age

that such protection must necessarily preserve the lawful -

enjoyment of such rights. Ss eas

It cannot be doubted that among + civil rights i in-.

tended’ to’ be protected from discriminatory state action

by the Fourteenth Amendment are. the rights ‘to ac-

quire, enjoy, own and dispose of praperty. Equality in

the enjoyment of property rights was,regarded by the

framers of that Amendment as an essential precondi-

- tion to the realization of other basic civil rights and lib-

; rilag which the Amendment ‘wag intended to guaran-

tee. Shelley v. Kraemer,.334 U.S. 1, 10. :

Property is maze than the mere thing which a person

_ owns. “It is elémentary that it includes, the right to ac-

* quire, use and dispose of it. The Constitution protects

these essential attributes of property: Holden’ v.

Hardy, 169 U. S. 366. Property consists of the free use, _

: enjayment and the disposal of a person’s acquisitions -;

‘without control.or diminution save by the law of’ the

land. Buchanan v. Warley, 245 U.S. 60,74:

Of. course,.such protection of lawful property rights must

~ be just chat. To remove that protection, whether inthe form ,

of police power or judicial remedial rights i is, in.effect, to

deprive the owner of the property itself. This is precisely aan

‘what Petitioners request-of this Court. aoa

While Petitii ) o not question the City’s use of its po-

lice. powers to eject white trespassers on the Proprietors’

‘property, they would deny its use to protect the propérty

from Negro trespassers. In short, because of the customer’s

thus the enjoyment of his property, eventhough, as hereto-

fore shown, the decision to exciude that customer was itself

lawful.’ Is this not a deprivation of the Proprietors’ prop- .

erty for the benefit of the trespassers solely because of the

trespassess’ race? Such is exactly what the “Fourteenth

_Amnedment prohibits. B

Thus, the guaranty was intended to secure equality

of protection not only for all; but against all similariy

situated. Indeed, protection is not protection, unless it

does so. Immunity granted to a class, however limited,

- having the effect to deprive another class, however

,dimited, of a personal or property right, is just as clear-

\ ly adenial of equal protection of the laws to the latter

class as if the immunity were in favor of, -or the depri-

vation of right permitted worked against, a larger

class. Truax v. Corrigan, supra, page 333.

See also Shelley v. Kraemer, supra; Buchanan. | v. Warley, :

supra; Barrows v. Jackson, 346 -U. S. 249; Liggett Co. v.,

Baldridge, 278 U. S. 105; Ochoa v: Morales, 230 Uz S. 139;

Barbier v. Connolly, supra. |

Petitioners would justify this restilt on the theory that

the Proprietors’ décisions, even though lawful, are dis-

. criminatory and that, their eriforcement under’ the police

powers constituyes prohibited “state action,” within. the

meaning of Shelley v. Kraemer, supra. However, the dis-

tinction is clear. In Shelley, the diseriminatory decision was

actually made in part by the state. The state was faced with

me)

7 Presumably, the Proprietors would still be free to refuse service or employ

“self help” to eject the trespasser. Cargighis possibly be deemed adequate pro-

tection from the economic effect on the Proprietor’s business of the presence. of

unwanted customers on her ecustomers’? In any event, it is inconceivable, that

while one may use “self help” ‘to enforce his rights, he may not cali upon a peacés ,

. Officer for the same: purpose. See Griffin v. Collins, 187 F. Supp. 149 (D. Md. ”

—

oe race, the Proprietor loses his right to police protection and.

Ne ae

two choices—whether to deprive a Negro of his property,

lawfully acquired, solely because of his.color by enforcing

a private covenant, or whether to protect the lawful

erty rights of the Negro at the expense of refusing -

force the contractual rights of his neighbors. In choosing

to sustain the former value, the state actually porte

in the amie: to discriminate. =

. ~ The Court cardtully pointed up this distinction :

: The diff@ence between judicial enforcement and

non-enforcagfent of the restrictive covenants is-the dif-

ference to petitioners between being denied rights of

property available to other members of the commu-.

_ nity and being accorded. full enjoyment of those rights

on an equal footing. Shelley v. Kraemer, supra, P. 19.

Here, however, there has been absolutely no siitielgins

tion’ by the. City of. any discriminatory decision. The

lawful decisions to refuse Petitioners service and the re-

quests that they leave the premises, even though based on’

racial consideration, were solely those of the Proprietors,

in which the City played no part... When Petitioners refused

‘to leave,zonly then did they become trespassers and only

then did the City enter the picture. As trespassers, Peti-

_ tioners were subject to police action, regardless of their

color, and the City’s enforcement of the trespass law in no

_ way ifivolved discriminatory conduct or decisions on its

part. The sole effect of the City’s conduct -was to obviate. .

the Proprietors’ rights to use “self. help” in protecting their

property. which could have\. sulted in violence. In short,

_ tlie “state action” involved here is limited ‘to the non-dis-

criminatory exercise of police powers to avoid violenge and

has no connection with et law eee if discriminatory, private |

ere —

decisions of the Proprietors to > request Petitioners to Leave

their premises.* ce

Apparently, Petitioners recognize that these cases involve

no discriminatory conduct on the part of the state prohibit-

ed by the Fourteenth Amendment.. For this reason, they

would abandon the entire concept of “state action”, as it

now exists and would impose upon the states, under. the - :

Fourteenth Amendment, the affirmative duty to prevent all

forms: of “public” discrimination, especially those. which

involve what Petitioners term the “narrow” or “technical”

property rights of others. (Pet. Br. p. 33-48. )* However,

beginning with its first interpretation of the Fourteenth-

Amendment in the Slaughterhouse Cases, 16 Wall 36, this -

‘. Court has consistently held that the Amendment created no

new rights among the private citizens of the state as to each

other, but was designed, solely to prevent actual cima

tion by the states themselves.’°

‘ Nor is this Court faced here with the saniis by Peti-

-tioners of any established constitutianal right which the

egg are required to protect, such as that raised in Marsh

», Alabama, 326 U. S. 501. We know of no constitutional

* This Court must have recogriized this obvious Sitinction from the Shelley

. detision. In none of its recent decisions involving a private establishment has

the Court concluded ‘that’ the mere enforcement of the criminal law, without

more, ‘constituted. prohibited “state action.” See Boynton v. Virginia, 364 U.S

454: Shutilesworth v. Birmingham: 373 U.S. 262; Avent v. North Carolina,

- 373 U.S. 375; Thompson ». Louisvule, 362 U.S. 199; Garner. v. Louisiana;

368 U.S. 157; Peterson &. Greenville, supra; Lombard -v. Louisiana, supra. .

Likewise. the Attorney General of ‘the United States recognized this

difference’ in his testimony regasding the pending “Public Accommodations Bill” :

I wouid point out to you the Fourteenth Amrendment si there has

to be action by ane State...

* * + *

4 You bave to have action by the State under’ the Pourteenth

Am erkdment. If is not just ‘individual action. It has to be action by

the State You can make an argument, for example, that all the State

’ did was give a business‘a liquor license. They didn’t tell them that

they should go ahead and discriminate. The argument would be that

it was not action by the State to ‘permit .them to discriminate.

Testimony of Robert F. Kennedy, Hearings Befpre. the Committee

on Commerce, United States Senate, Eighty-Eighth angremt, First -

Session on S. 1732, Part. 1, ‘page 74: July i, 1963.

"It is noteworthy» that these are the same “narrow’ * or “technical” rights

‘ protected by this Céurt in S helley. a

*° See footnote 2

right to be free of “inconvenience” or “humiliation,” espe- .

cialiy where one enters the private business of another

against the owner’s known wishes for the purpose of pro-

testing the manner in which that. business is run.'! Neither

‘is there any constitutional proh‘bition of discrimination, on

any basis, among ‘private individuals, whether such dis-

crimination occurs in public or in the aie of one’s. living

room. 12

Unquestionably, the state has the right, abolish the pri-

vate discrimination of which Petitioners t mplain. As they

indicate, .ais has been accomplished in many states, (Pet.

Br. p. 37-38) but always by the use of the ballot and the leg-

islative process. If indeed there is a “felt need and appre-

hension” (Pet. Br. p. 58) on the part of Petitioners for re-

~ lief, their 1¢émedy ‘lies in their participation in the elective.

and legislative processes of the state governments, not ina .

distortion cf the United States Constitution which has the

sole effect of placing the federal government, througn its

courts and Aets of Congress, in the business of régulating:

all the-relatioriships and aspects of the private individuals

to each other. In the apt language of this Court:

‘When a man has emerged from slavery, and by the

aid of beneficient legislation has shaken off the insepar-

able concomitants of that state, there must be some

stage in the progress of his elevation when he takes

the rank of a mere citizen, and ceases to be the special

favorite of a cause, and when his rights, as a citizen

or a man, are to be protected in the ardinary modes by

which other men’s rights are protected. Civil eae

Cases, supra, p. 25.

—

* Petitioners testified they had frequented the en involved and they

must therefore have known, of .he Proprietors’ policies against serving Negroes

at the lunch counter. See Barr 25, 34, 30; Bouie 27, 43. In fact, the obvious pur-

pose of their presence was to protest this policy.

** See footnote .2. j é

Petitioner apparently would permit racial discrim:: ation in the living room.

(Pet. Br. p. 56) "But where is the basis for such a distinction? The public

“private” -business property supports the living foom. The ‘latter cannot exist

without the former. Is one a more “narrow” or “technical” viieseasn interest

“ than the other ? .

Clearly, this record presents no case of unconstitutional

conduct on the part of ‘he City.

¢. The convictions in.Barr v. City of ricoriaen involve no

circumstances of official coercion.

Petitioners seek to isolate special circumstances in Barr

v. City of Columbia (No. 9) to justify a- finding of “state -

action” on the part of the arresting offers, They suggest

_ that the proprietor’s decision was, in effect, coerted by the

police, The record will not support such a contention.

. The Pr oprietor testified : Hee

Page17. Q. Had you informed Mr. Stokes [the : bre

- resting officer] prior to ‘the defendants coming in, that

you were not going to serve them, and that you wanted

them to leave?

A. That’s correct. I was informed on i diay that

they would be Tee at 12:35 Tuesday, under their

plans, ete. * iia

Page 20-21 . .» I was informed on Monday, that a .

demonstration was planned for the Taylor Street Phar-

’ Macy at 12:35. Didn’t say what date.

Q. Based upon your information you then asked the me

assistance of the Police ihiagons es and other officers?

A. That’s correct.

Q. And the police officers who were in your storeon |

March 15, 1960, were there at-your request?

A. Well, I would say yes or no. I mean they came

and informed me of the demonstration and we were

working as a- ‘group. I’ll put it that way. I didn’t eall

them to come around and inform me. They informed

_ Me in advance.

Q. When you say working togdthe?—yon: you requested :

their assistance in preventing this demonstration?

A.’ Not necessarily a deménstration. Any ty pe of

violence could erupt or anything, against my store

policy. It could create Violence,

wished the officers to ae you in preventing?

A. That’s correet.

Q. Anjthing against ‘your store renng? then”

Q. So you then rectaatéd their: assistance?

A. ‘I would put it that way, yes. I wanted ‘them

e there. Let’s put it.that way. ys

° Page 28. Q, You told theni to move’ and they re-

fiteedl did you ask them then to arrest them? _

A. We had a previous agreement td: ‘that effect, that

_ if they did not leave, they would be placed, under arrest .

for trespassing.

Q. You had already agreed with: ‘the’ Police De m

partment— |

A; If we had a demonstration, if weshaanied them’

~~ to leave and they refused, then they would be arrested: -

ee @. So in fact you had instxucted the Police Depart-

~ -meht to arrest them if they refused ‘to leave at your

request? ne é

was ah agreement — to ty law entoréement

division. .

. Q. You ‘let the Police Departméxit, ‘know that that:

was your wish? . -#- ic 4S :

A. That-I would not serve theni. ;

. Q Andi if they did not leave when you asked them, —

you wanted them arrested? — pe Pes

A. -That's correct. Pay >

Clearly, the’ decision not to serve Petitioners aiid to re-.

quest their departure was purely: that of the Proprietor.*®

_ Nor is the situation altered by the fact that.the Proprie=

tors requested the presence of the officers in advance of the

’ demonstratidn. Having ‘been alerted of. the exact time of

the demonstration (Barr R: 17, 20-21}, it was. perfectly

: reasonable and proper for the Proprietor to have police help

a ‘This tektinnons ‘was cossatniieted by the police officer who Was present ::

Page 9. A.... Before sthey came in, the manager, or the owner, Mr.

Terry, had told me that he ‘wasn’t going to serve them and that he ‘winted

m out: dhe his store, if they camé back. ,

A. Not scstaitty: I had’ instructed them but that:

nee

> X2 :

‘ ) a « ° w*

Jay SLES ‘

een cree o 21— 2 -

a hand at the time of the aesaniatratent 8 arrival, rather

than awhit their actiial p ce befire calling for police

~ Neither i is. there an Vvidence of the police officers coun-

seling the Proprietor to securé evidence of a:crime. Before

'.) the police inte in any. way, the Proprietor first, on his.

- Own, irl gp to leave. (Barr R. 3-4, 12-14,

_. 17). Only after Petitioners refused his request did the offi-.

cers intervene to ask the Proprietor to instruct each indivi-

‘dual again to make sure that each had _ the request. |

(R.A). | .

- The. arresting atfiver testified :

-“Pages‘14-15. Q. State your reason for oe so?...:

A. Why. I asked them to leave?

Q. Yes?

A. As I stated before, hé*had informed me that he. a

_ Wasn’t going to cerve them and that he wanted them

out of his store. ‘All right, after he had made the state-

ment io’ all of thém, they sat there like maybe they

didn’t hear him. The others had started to get up, the

» White customers stood up, and the reason I asked to tell

_ them again so that they would know that he wasn’t

going to serve them and wanted them to leave.

Q. In fact, you were assistimg him in refusing’ them |

service in asking» them to leave? : °

A. I wouldn't say I was assisting him.

» Q. What was your point in being certain that they

héard him?

A. So that whenever they didn’t leave and’ they had —

been asked to leave, well I heard him ask them to leave

‘and they ignored bim. He’s the owner of the storé and

as I said,»my purpose as there to prevent violence,

but at that particular point they refused‘ to leavé and

it seemed to me another law was being broken.

| Q. What was that law? :

A. They were trespassing. :

_ Q. Are you familiar with thefrespass law?

oe ’ ’

. bs :

f} : : " . .

e ‘ e

’

—

REN

«= FAERIE +

A. No, I don’t say I’m all familiar with it.

Q. It was an ever present factor i in your mind that

day?

A. I wouldn’t say it was ever witeank: I tried to keep

"all the-laws. I don’t say allof them, but I tried t6 keep

most of them in my mind.

: Q. You did however, assist the manager | in refus-

. ing service to these defendants; didn’t*you? . . ~

A. I won’t. say I assisted him ‘in refusing service.

‘The officer’s request for a repetition of the instructions:

was: clearly for Petitioners’ own*benefit—to afford them

every opportunity to avoid being arrested solely because of ‘

.a failure to hear the Proprietor’ s instructions. Only after.

the Petitioners had obviously heard the request to leave and

still deliberately refused: to depart did the officers act.

Clearly, this record refletts no circumstances comparable —

-. to those found in Lombard v, Louisiana, supra, and Peterson

v. Greenville, supra. |

Il.

THE SOUTH CAROLINA SUPREME COURT HAS

: NOT CONSIDERED OR PASSED UPON .THE |

APPLICATION: OF THE DUE. PROCESS CLAUSE ~

' TO THE STATUTES INVOLVED -

The’ Petitioners and the. United States: as Amicus Carinc i

’ take the position tliat the statutes underlying the convic-

tions of Petitioners are unconstitutionally vague as applied

to Pétitioners in this action in that the wording of the afa-

tutes and their interpretation hy the courts of South Caro-

lina gave no notice to the Petitioners that their acts in

these cases were in violation of the statutes, ‘thereby de...

‘priving them of rights guaranteed. by the due process

clause of the Fourteenth Amendment to the Constitution of

the United States. This position is without merit.

a. This Court, in reviewing a decision of the South Caro-

lina Supreme Court, has no jurisdiction to consider ques-

tions not a or renee upon we that Court. -

‘23 - : ; ; 0 o-< ® ;

In the ~— of these cases tie ec eeu tt

- tutionality of.the Trespass Statute, Section 16-386, Code .

of Laws, South.Carolina, 1952, is first raised in the Petition

for -Writ of Certiorari. The question was, not presented

* to the Sduth Carolina Supreme Court and was: not decided.

‘by that Court.

Rule 8, Section 2, of the Rules of the Seoreies Court of :

‘South Carolina states:"* Shaoee ae

The Brief of. Appellant shall be preceded a a state-

ment of the questions involved.

. Ordinarily, no point will be considered which is

- not set forth in the statement of. the questions involved ,

or suggested thereby. . ~v

oe In the Barr case, the pertinent statement was as 5 fol- :

lows (Appendix I-A) :

QUESTIONS INVOLVED

<I. Did the court err in refusing to hold that ander:

the circumstances of ‘this case, the arrest and.convic-

tions of appellants were in furtherance of a custom of

racial segregation, in violation of the Fourteenth |

_* Amendment to the United States Constitution?. (Ex- ~~

- ceptions 3,:4) ° bs

A. Was the enforcement of segregation in this -

case ‘by State Action. within the meaning of the. Four- :

teenth Amendment?

'B.- Were the appellants iieaadiaie senitioed

for exercising their freedom of expression in violation

‘of the Fourteenth Amendment?”

(Appendix 13A) :

QUESTIONS INVOLVED

Did the court err in refusing to hold that under the

’ circumstances of this case the arrest and’ convictions

of appellants were in furtherance of a custom of*racial

we .

— —\* This Court has a rule to the same effect. Supreme Court Rule 10, para- +. - .

Pike. 2. :

nie |

segregation, in violation of the Fourteenth” Amend-

3and4) , A

A. Did the conviction of seellinite of the charge

of trespass constitute State action within the meaning »

- of the Fourteenth Amendment to the United States

Constitution?

*B. Did th plication. of appellants of the tres-

pass statute, ‘ager the circumstances: of this case,

amount to a violation of -appellants’ constitutionally

_ protected right of freedom of expression? pis

No question is raised as to the vagueness of: the statutes

by either of the above statements, nor is ‘any such question

argued or pressed by the hy of the Petitioners (appel-

lants below) which are printgd asan appendix hereto. .

The South Carolina Supreme Ce has consistently held

that questions which are not argued in printed briefs will

not be considered even though the questions have been initi-

ally raiséd by exceptions.

In Priester v. Priester, 131 s. 2 284, 127 S.E. 18, the

Court said: °

No étceptions in the matter of the appeal frei the

order of the Circuit Judge settling the case for appeal

were argued in appellant’ s printed briefs. Any assign-. :

-ment of error in that regard must, therefore, be

deémed abandoned. -

cas In Echols v. Seaboard Air Line Railway Co., 174 S.C.

587, 178 S.E.. 139, the’ Court said:

_ This is the only question which appellant has ar-

_ gued in his printed brief. Therefore, under the rules

and decisions of this Court, all other exceptions are» —

deemed abandoned. Suprene Court Rule.8, Secs. 2 and

4. Priester'v. Priester, 181 S. C. 284, 127 S.E. 18.

See also Hucks v. Sellers, 236 S.C. 239, 113 S.E. (2d)

753 and — v. WIS-TV, 236 s. C. 355, 114 S. E. 4 (2d)

502. ©

In the cases here being seiiowed: the question of the

: constitutionality of the’ statutes had not even been: raised

by the exceptions ‘to the order of the Richland ae

Court.’ (Barr R. 51-52) (Bouie R. 63)

Having established that this qhestion Was not considered-

or passed upon by the South Carolina Supreme Court, it

necessarily follows that this Court cannot now consider its

in reviewing the decision of that Court.

In Hulbert v. Chicago, 202 U.S. 275, this Court in re-

viewing a decision of the Illinois Supreme Court, said:

According to the practice « of the court, an error not _

assigned is not open to review. Berry v. Chicago, 192

Ill. 154, 155, 61 N.E. 498. Errors assigned, but not —

noticed or relied on in the brief or argument of coun-

sel, will be regarded as waived or abandoned, Keys v.

Kimmel, 186 Ill. 109, 114,57 N.E. 851. And such rule °

of practice will be recognized by this court. Erie R. Co. -

v. Purdy, 185 U.S. 148,'153. It follows that this court

has not Jurisdiction of this writ of error. [Citing

cases. |

In McGoldrick v. Compagnie General Transatlantique,

309 U. 8. 430, the Court said:

But it is. also the settled practice of this Court, in

the exercise of its appellate jurisdiction, that. it is only

in exceptional cases, and then only in, cases coming

_ from the Federal Courts, that it copsider questions

urged by a petitioner or appellant not pressed or passed.

‘ upon in the courts below. Blair v: Oesterlein Mach. Co.,

275 U.S. 220, 225; Duignan v. United States, 274

U.S. 195, 200. er added. i

epee the exercise of our appellate jurisdiction to re-

. view the action of state courts we shold hold our-

selves free to set aside or revise their determinations

only so far as they are erroneous and error is not to be

predicated upon their failure to decide questidhs not

- presented. Similarly their erroneous judgments of

_unconstitutionality should not be affirmed here on con-

stitutional grounds which suitors have failed to urge

keoo Se :

oe SS —--9g; : ties ges Aha

9 | before them, or which, in ‘the course of proceedings |

Se have been. euaniee.

In Edelman v. California, 344 U.S. 357, Mr. _ Justibe |

_ speaking for the Court, said:

a | ‘Iti is clear that this Court‘is without power to- decide

whether constitytional rights have been violated. when

the federal questions are-not seasonably raised in ac: °

~~ v. Chicago, 202 U.S. 275; Mutual Life Ins. Co. ‘v.

MeGrew, 188 U. 8. 291, 308.

Mr. Justice Stone speaking for the asi in pace oh

" United States, 321 U.S. 414, 444, anid:

“No procedural alti is more familiar te this

. Court.than thata constitutional right may be forfeited

in criminal as ‘well as civil cases by the failure to make

timely assertion of the right before a tribunal having

jurisdiction to determine it. O’Neil v. Vermont, 144

U. S. 328, 8381; Barbour v. Georgia, 249 U. S. 454,.460;

Whitney v. California, 274, U.S. 357, 360; 362, 380.

Ceurts may for that reason refuse to consider a con-

‘stitutional objection even though a like objection had

previously been sustained ih a case in which it was

properly taken. Seaboard Air Line R. Co. v. Watson;

- 287 -U.S. 86. While this Court in its discretion some-

‘times departs from this rule in cases from lower fed-

eral courts, it invariably adheres to it in cases from..

5" state courts, see Brandeis, J. concurring in Whitney v.

* 8 California, supra (274 U.S. 380, and it could hardly

be maintained that it-is beyond legislative power to — A

- make the rule inflexible i in all cases. Compare Woolsey -

v. Best, 299 U.S. 1, 81 L. Ed. 3,-57 5S. Ct. 2, with Ex

parte Siebold, 100 U. S, 371.

—

lvania, 287 U.S. 660; John v. Paullin, 231 U.S. 583, 585,

Central Union Tel. v. Edwardsville, 269 U.S. 190.

See also Musser. Utah, 833 U. S. 95, Dorrance v. ahaa

le:

_ The conclusion is “inescapable that in these cases, here°

before this Court on Writ of Certiorari to the Supreme

-Court of South Carolina; the constitutionality of = ge: a

tutes involved is not in question. ——._——

b. Whether or not the acts of Petitioners brought them

' within the prohibitions of the statutes under which they

were charged was not raised or briefed to the South Caro-

_ lina Supreme Court and was not decided by that Court.

‘The. position that the Trespass and. Breach of ‘Pence

_ Statutes are void for vagueness requires as its basis a de-

termination that, the South Carolina Supreme Court in its

decisions in- these cases ha§ interpreted the statvtes ‘to

apply to the acts of the Petitioners and that as so inter-

preted the statutes do not conform to the cue process re-

quirements of the Fourteenth Amendment. —

A brief review of these records will show that this very

question was ately abandoned by Petitioners, ap- |

parently in o1 té prevent a decision on this question

favorable to them and to preserve thé “state action” ques-

‘tion for review by this court on -facts which Petitioners

cf considered to be outstandingly favorable to their position.

In the Barr case, the-Petitioners were found guilty of

, trespass and breach of peace (Barr R..42). In the Bouie

case, the Petitioners were found guilty of trespass and

Bouie himself-Was found guilty of resisting arrest (Bouie R.

51). The record does not contain the exceptions upon which

the appea! to the Richland Couhty Court was based and the

arguments there were ‘oral and not reported, but it is evi-

dent from the opinion of Judge Crews (Barr R. 46-51)

(Bouie R. 57-62) who combined the cases.and issued one . 4

opinion, that the question of whether or not the acts of the

Petitioners constituted violations of the trespass statute, the

breach of peace statute, and, in the case of Bouie individuab

ly, resisting arrest, were raised andsargued before him

and he decided adversely to the Petitioners on each count. -

‘ This question was not,preserved by the very general

(1 and 2) exceptions to Judge Crews’ order in the Barr |

case, and it was abandoned entirely by Petitioners failure -

-to argue the point in their brief and by their failure to

sufficiently specify the error complained of both in their

exceptions and in’ their statement of “Questions Involved.”

’ (Appendix 1A-13A). Upon the appeal the South Carclina

_ Supreme Court’said: (Barr R. 55-56) .

We think that Question II is based on saeadtions too

general to be considered. They aré as follows:

- 4. The Court erred i in refusing to hold that the City

failed to prove a prima facie case.

‘2. The Court erred in refusing to held that the City

- failed to establish the corpus delicti.’

“The foregoing exceptions do not comply with rule 4,

_ Section 6 of this Court. They do not point out in what

~~ yespect the City failed fo make out a prima facie case __

- or to establish the corpus delicti. We do not know to .

which of the two offenses involved these exceptions are

directed. We are not aided by appellants’ brief. Only |

_,seant reference is there.made to these two exceptions. .

and apparently the position’ is. taken that their deter-

mination is dependent upon. the disposition of the other

questions which we have held to be without merit.

‘.. It has ‘been held that an exception to the effect that .

-the judgment is.contrary to the law and the evidence

- is too general to be considered. State v. Turner, 18 S.C.

103; Stete v. Cokley, 88 S. C.:197,-65 S.E.-174; State v.

Davis, 121 S. C: 350, 118 S.E. 491. The same coriclu-

sion has been reached with reference to an exception

‘that’ plaintiff. failed to make out a case against de-

fendant.’ Concrete Mix, Inc. v. James, 231 S.C. 416,

98 S.E. ( 2d) 841. Other pertinent cases are reviewed

in Hewitt v. Resérve Lifé’Insurance Co., 235 S. C. 201,

110 S.E. (2d)- 852. It was pointed out in Brady v.

ebaioas 222 S.C. 242, 72 S. BE. (2d) 193, that ‘every.

. "ground of appea! ought to be so distinctly stated that

the Court.may at once see the point which it is called

- upon:to decide without having to “grope in the dark”.

to ascertain the precise point at issue.”

In the Bouie case, the same situation éxisted as to the

trespass statute, but the Petitioner Bouie.did argue the .

failure to prove the charge of resisting arrest and the South

Carolina Supreme Court reversed the Richland County

Court on that charge. The South Carolina Supreme Court,

‘in the Bouie decision, did say that the Petitioners were: _

guilty of trespass but, since that question was not before Jae

them, that statement was dictum.

’ It is important to the understanding of these cases to

. realize that the South Carolina Supreme Court, in deciding

Barr and: Bouie, ‘rélied heavily on ‘its recent decision in

City of Greenville v. Peterson. The Greenville case arose +

under an amendment to the‘trespass statute which was

_ adopted by: the South Carolina General Assembly after the

Barr and Bouie convictions. This fact. was not. called to

the attention of the South Carolina Supreme ( Court by the

Petitioners.

Under our a ie of jurisprudence, state courts have

“the final word, as to interpretation of state laws. This Court

has the final word as to the conformity of state laws, as

interpreted by state courts, to the United States Constitu-.

tion..

This well established doctrine is stated ' in M usser v. Utah,

- 833 U.S. 95:

This triaf was not conducted in federal court nor for

violation of federal law. It is a prosecution by, the:

State, in its courts, to vindicate its own laws. Our sole

. concern with it is to see that no conviction contrary to

‘a valid objection raised under the Fourteenth Amend-

ment is upheld. What the statutes of. a state mean, the -

extent to which any provision may be limited by other

Acts or by other parts of the same Act, are-questions

on which the highest court of the State has the final

eee

‘word. The velit: to san this wil’ is one > which State.

‘courts should jealously maintain and which we should

scrupulously observe. In order that the controversy

“may be restored to the control of the Supreme Court

of Utah, its present judgment is vacated and the cause

_ is remanded for proceedings not inconsistent herewith.

In the Barr and Bouie cases, the Petitioners, by raising

the question of interpretation in the Richland County

Court, abandoning the question before the South Carolina

Supreme Court and then raising it as.a constitutional ques-.-

_ tion before this Court, have attethpted to oust the state .

courts from their. jurisdiction to interpret. the statutes:

under which Barr and Bouie were convicted. «

From. the record, it cannot be said that the South Caro-

Jina Supreme Court has, upon proper presentation and |

proper briefing, held that the acts of the Petitioners are

dearly within the prohibitions of the statutes involved and

. therefore it cannot be said that the statutes are, as inter-

preted by the South Carolina Supreme Court -in their °

ee —— to these Petitioners, void because of vagueness.

THE RECORDS BEFORE THE SOUTH CAROLINA

SUPREME COURT Lee saseigs PETIFIONERY

- CONVICTIONS

a. Trespass. ee. ”

The Petitioners deliberately remained on the premises,

after being told te leave, with the intent to. commit an act .

which would lead to their arrest.

Throughout—these proceedings the Petitioners have at-

pted to a r in two roles. In one they appear as naive

college students who merely stopped in at a lunch counter .

_-in a drugstore to buy some food with no knowledge that

there existed’a policy or custom not to serve members of

their race.’* In this role,, the request to leave and the sub-

sequent ‘arrest upon failure to do so came as a complete

_ surprise. In the cther role, they appear as leaders in a battle

ieee Suatice fers eh

for their: ‘alleged rights to be free from all y EE re TO

' their presence at the lunch counters is stated as béing for

the purpose of asserting those. rights, and they are likened

to Ghandi when he marched to the’sea (Pet. Br. 55).1*

In the former role, their position as to lack of notice .

under the statutes that they were committing a ° misde-. .

. meanor would, if properly before the Courty be entitled to

consideration, but in the latter role it is without merit.

The basis s for the requirement of notice is “that it gives

the actor an opportunity to avoid doing those acts which

will bring him into conflict with the terms of the statute. if

Petitioners were demonstrators intent upon calling atten- °

tion to the fact that the stores would not serve lunch to

them, willing to risk arrest’ in the furtherance of. their

cause and, furthér, seeking to bring the matter into court

in the belief that their cause would be -vindicated, then the.

_. statement to them that they will not be served and thatthe ~

' proprietor wishes them to leave is adequate forewarning to .

* them that their continued-presence will subject them to

arrest for trespass. At the time Petitioners were asked to

_ leave, they were forewarned and their election was clear. |

‘Either to leave promptly or to stay ‘and be arrested for

trespass. As demonstrators, they elected to remain and be

arrested. Having made this election with full intent, they

* cannot now complain that they had no opportunity to avoid.

conflict with the statutes under which they -were convicted.

ad Fe of Richard M. Counts (Barr R..31) 3

Q. State to the Court your reason for going there?

A. Well, I invited a Fraternity Brother of mine, Charles 534 bac come alk

arrested?”

A. I refuse to answer that, sir. - .

Q. Why? ‘Wasn't that your intention, to be SP aiennd? +a

A. I refuse to answer that.

Mr. Jenkins: If your Honor please, I suggest that the Court the,

" witness that he must answer any question put to him by the City A orney.

; a Court: — exactly “—" will nays to answer counsef’s _ques-

“A. Yes. 7

“a

\\ :

. ae 2 < : . . 4

b. ‘Breach of the: Peace (Bare.) a

| / 4: Under Section 15-909 of the 1952 Code of Laws of South

Fpe 59% Carolina, the South Carolina Supreme Court has defined

Sees “breach of the peace” to include: ~

| _A violation of the public order, a disturbance of oi

| public tranquility, by any or conduct inciting to -

: violence... It may consist 9f an act... likely to pro-

: ee ¢ duce violence. It is not necessary - that. the peace be

actually broken to lay the foundation. for a prosecution

1) ae —<for-this offensé. If what is done ais unjustifiable and

unlawful tending, with sufficient: ‘dikectness to break

the peace, no more is required. Nor is actual personal

= here violence: an essential ‘element in tlie offense.... State

Ae. sty v. Edwards, 239 S. C. 339, 344, 123 S.E. 2d 247, 249,""

Beyond question, Petitioners’ conduct falls within this defi- .

nition.

The Petitioners had- previously frequeiited Propridtor’s

- store. (Barr -R. 25, 34) In fact, ‘at least one had theretofore

purchased food from the lunch counter to take-out. (Barr

R. 34) Because of this familiarity ‘with the store. itself,

Petitioners were bound to have known of its policy against —

serving Negroes at the counter.'* In fact, testimony of one

” of the Petitioners indicates that he expected to be requested

to leave. (Barr R. 28-29) They entered the store pursuant

| toa pre-arranged plan for the sole purpose of being served

J es ae at the lunch counter against the kriown yes of the Pro-

ae ‘prietor. (Barr R. 25, 80) Ge ‘eye

The City’s testimony revealed that such a previous “dem-

-* . , onstration” had “stopped everything” in the store. (Barr

’ @ R. 24) “In’ this instance, seyeral lunch counter’ patrons _ -

seated. (Barr R. 4, 11-12, 23-34) The ehtire store was

- This Pe ae of or of tie. Peace is quite simi similar to ‘that propounded

by this Court. Cantwell 2. ‘Connecticut, 310- U.

; get ly must Petitioners, have known of this oe if in fact there was

' such a 1.“custom” as they insist. (Pet. ee. p. 25-

—-- (wo

¥ °

t c. 7

I I TS SE SORTS

i .

age by 33 ° * Gs

_ “on pins and needles.... for fear it could possibly lead to

violence.” (Barr , 23-24)

"Clearly, Petitio ’ insistence in remaining on the prem-.

_ises after ample request to leave, when they knew in ad-

vance 2 they were not wanted and would be refused service,

and. when the obvious result of their refusal was to incite

violence, or an act or conduct “likely to produce violence,

.or inciting to produce violence,” and “...to break the

peace “within the meaning of Section 15- 909. Such has been

+ the conclusion of other courts. See.e.g., Feiner v. New York,

340 U.S. 315; United States v. Kessler, 213 F. 2d 53 (3rd

Cir. 1952) ; State v. ‘Van Allen, 140 Conn, 586, 102 A. 2d —

526; People v. Phillips, 284 N. Y. 235, 30 N-E. 2d 488.

Quite a different situation existed i in Garner v. SE castblacie

supra, and Thompson v. Louisvillé: supra. In the Garner

oon the State Court’s definition “preach of the

peace” was much narrower than that presefted here. (Seg:

pages 165-169) More important, however, there. was no‘ -

-_ evidence there that Petitioners had beengrequested to leave,.

that they had refused to obey any ‘such request to leave, or

that the Petitioners’ conduct had disturbed other customers. wy

"Similarly, the record in the Thompson decision, involving. |

that presented -here. In that case, Petitigner was ; welcomed iS

into the ‘store and had been served by the. Proprietor; ‘who

did net call the «police. The only*evidence offered by the

City was Petitioner’s “argumentative” conduct and atti-

tude toward the police.

Clearly, the doctrines of these cases have no application

to this-record, which amply supports Petitioners’ convic-

tions for breach of the peace. .

: a : °

Ls: m

3 ; Sane Be Beer : ay . a

ee | ae

Tes ee CONCLUSION “8

For the reasons stated the jéd%ment of the Supreme

Court of South Carolina should be affirmed or if the al-

ternative the writ should he dismissed. Ses ;

9 | e - -Respeetfully submitted

‘-«, John W. Sholenberger

me "Edward peer, ‘dr. fy,

; "David W.

o > Thomas \T. “Moore

eo? Sante ee Oe ee David W. Robinson, II >

"°° “Attorneys for the Respondent -

Bu are ‘< City of Columbia ye

: < , : ? ° es y : ah

i f ¢ rage >. &

Q. PEA : .

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.