Amicus Curiae Brief — Sullivan v. Little Hunting Park, Inc.

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ment, necessarily living in the Washington area, wher

he and his family were refused membership in a com.

munity recreational facility available to all other resi.

dents. In these cireumstances, the United States, as the

largest employer in the region affected, has a more im.

mediate interest in the problem, and, also, a more ob-

vious responsibility for attempting to offer a solution,

STATEMENT

Little Hunting Park, Inc., was incorporated as a non:

stock corporation in 1954 principally for the purpose,

set forth in its certificate of incorporation, of organiz-

ing and maintaining “community park and play-

ground facilities,” including a swimming pool, for

“community recreation purposes’? (A. 24, 120-121),

Currently, swimming, tennis and other recreational

activities are made available to the residents of four

specified subdivisions (Buckne!i Manor, Bucknell

Heights, Beacon Manor and White Oaks) and certain

adjacent areas in Fairfax County, Virginia (A. 28,

121, 143). Subject to a 600-share maximum, the cor-

poration’s bylaws provide that membership shares

entitling the holder, his family and guests to use its

facilities, are available to all adult persons who “re-

side in, or who own, or who have owned housing

units,’’ within the specified geographic areas (A. 28,

121-122).' No other qualification requirement, such

‘The number of persons living within the four specified sub-

divisions who are shareholders varies from 115 out of the 750-

800 families residing in the Bucknell Manor and Bacon Manor

subdivisions to 136 out of the 174 families residing in Bucknell

Heights. There are no statistics on White Oaks (A. 148-149,

163).

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as nomination or recommendation by existing mem-

bers, is mentioned. There are no limits on the number

of shares an individual may hold; shares have been

held by institutions and corporations owning property

in the prescribed areas (A. 28, 46, 121, 123-124, 216-

218). Shares may be acquired either by purchase di-

rectly from the corporation or from a previous holder

(at prices ranging from $150-$230), or by lease from

— alandlord to his tenant (A. 28-29, 45-46, 122-123, 128).

The bylaws provide that the issuance and assignment

of shares is subject to approval of the Board of Di-

rectors of Little Hunting Park, but in the first 12

years of its operation, 1,183 shares were issued and

392 shares assigned without there being any record of

any assignment having been denied approval, prior to

the attempt of Sullivan to assign a share to Freeman

(A. 29, 40-50, 125-128, 148).’

Petitioner Paul E. Sullivan owns two houses within

the geographic areas served by the recreational facili-

ties of Little Hunting Park. From 1962 until 1965, he

held a membership share for each (A. 45-46, 78-79).

During those years he rented one of the houses to

various tenants, including the Little Hunting Park

share for that house as part of the leasehold interest

(A. 46, 49). On February 1, 1965, he leased the house

to Dr. T. R. Freeman, Jr., for a term of one year,

subject to renewal. He included the membership share

in Little Hunting Park as part of the leasehold inter-

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? There was testimony that an assignment of a share was dis-

approved by the Board of Directors in May 1961. Since there

are no records of the incident, details of the transaction and

the reason for any disapproval are not now known. (A. 127).

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est to which the rental fee, $129 per month, applied

(A. 46-47, 177). Dr. Freeman and his family are

Negroes. They moved into the house (and remained

there into 1967), but the assignment of the Little

Hunting Park share membership was not approved by

the Board of Directors. It is clear from the record

that they rejected it solely because Freeman is a

Negro (A. 48, 51-52, 55, 112-113, 130-131, 145-146, 155-

156, 188-189).

Following the Board’s disapproval, Sullivan met

with various members of the Board, other share-

holders, and community leaders in an effort to have

the decision reversed. He organized a members’ peti-

tion to the Board for a membership meeting to hear

Freeman and reconsider the decision to keep him out.

The Board met on June 11, 1965, and decided Sullivan

had. given “due cause”’ for expulsion from the corpo-

ration by his refusal to accept the Board’s decision

and his allegedly intemperate criticism of the Board’s

action (A. 59, 130, 138-139, 190). Neither the Board

nor the membership ever met with Dr. Freeman.

On August 24, 1965, after giving Sullivan a brief

hearing, the Board voted unanimously to expel him

(A. 67, 71-72, 77, 97-98, 143, 157-158). Sullivan was

notified of this action by a letter from the president

of the corporation which also included a check tender-

ing to him the then current sale price of his two

shares (A. 72, 116, 200-201).

Sullivan and Freeman then commenced separate

civil actions against Little Hunting Park and its di-

rectors. Both sought orders declaring the corpora-

tion’s racially discriminatory admission policy invalid

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and requiring it to approve Sullivan’s assignment to

Freeman (A. 5-13, 15-19). Sullivan also sought re-

jnstatement of his membership shares and monetary

damages for his wrongful explusion. Freeman also

| prayed for monetary damages to compensate him for

Little Hunting Park’s unlawful interference with his

contract with Sullivan and for depriving him of the

full enjoyment of his leasehold estate.

The trial court, the Cireuit Court of Fairfax

County, Virginia, dismissed both complaints, holding

Little Hunting Park to be a private social club with

authority to determine the qualifications of those using

its facilities, including the right to deny use on the

basis of race (A. 232, 235). The court found that the

expulsion of Sullivan was permitted by the relevant

provisions of the corporate bylaws and justified by

the evidence (A. 232).

The Virginia Supreme Court of Appeals rejected

the petitions for appeal, citing plaintiffs’ failure to

comply with a state procedural rule (A. 242, 243).

This Court vacated that judgment and remanded the

ease to the Virginia Supreme Court for “further

consideration in light of Jones v. Alfred H. Mayer Co.,

392 U.S. 409” (A. 244). On remand the Virginia

Supreme Court disposed of the case on the same pro-

cedural ground (A. 247-249), and petitioners once

again sought review in this Court.

SUMMARY OF ARGUMENT

I. The central question in this case is whether the

“property” clause of Section 1 of the Civil Rights Act

of 1866, 42 U.S.C. 1982, prohibits a corporate com-

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munity recreational association from discriminating }

with respect to membership on the basis of race, wher }

access to the facilities involved is available to all other

residents in a stated geographic area. The question is

largely settled by Jones v. Mayer Co., 392 U.S. 409,

Under that decision, it seems clear that the developer

of a comprehensive community such as Reston, Vir.

ginia, or the apartment-town house complexes of

Southwest Washington, D.C., would not satisfy the

statute if he sold or leased living quarters to all,

but permitted only whites to use the community’s other

facilities. Even though the corporation here was not

part of a larger development plan and all houses in

the neighborhood concerned were not automatically

members, this case is essentially the same. Little Hunt-

ing Park is not a private social club; except for this

case, membership in it has never been premised on

anything other than living in the area and paying the

necessary fees. There are none of the earmarks of

exclusivity or choice traditionally associated with

the private club; the case in this respect is just like

Daniel v. Paul, 395 U.S. 298, decided last term.

Whether viewed as an incident to real estate, or as

personal property, the membership shares in Little

Hunting Park are subject to the guaranties against

racial discrimination embodied in Section 1982.

Neither enactment of a public accommodations law in

the Civil Rights Act of 1875 nor this Court’s decision

in the Civil Rights Cases, 109 U.S. 3, stands as an ob-

stacle to our conclusion. There can be little doubt that —

the draftsmen of the 1866 Act believed that they were

reaching places of public accommodation. The reach

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of the 1866 Act was clearly shown by its reenactment

in 1870, after adoption of the Fourteenth Amendment

had explicitly guaranteed to Negroes equal protection

_ of the law. If any reason need be found why Congress

again addressed itself to the subject in 1875, we think

it may be found in a desire to provide a more effective

means, through federal enforcement, to vindicate

rights already recognized. The Civil Rights Cases have

been substantially eroded by this Court’s subsequent

decisions, particularly its broad reading of the con-

gressional power to enforce the Thirteenth Amend-

ment in Jones.

Nor does the Public Accommodations Law of 1964

affect the coverage of the 1866 Act. Here, also, Jones

principally answers any question through its rejec-

tion of a comparable argument based on the Fair

Housing Title of the Civil Rights Act of 1968. The

1964 Act indicates nothing of the purpose of legisla-

tors a century earlier; there are substantial differences

between the new laws and the old; and while the 1964

Act has limitations absent from that of 1866, there is no

reason to treat these as a repeal sub silentio of the 1866

Act (see Jones, 392 U.S. at 437). To the contrary, the

1964 Act specifically saves prior legislation to the extent

itis not inconsistent, and we show that this condition is

met.

II. We discuss briefly objections raised to the stand-

ing of the white assignor of membership, Mr. Sulli-

van, and to the damages which both petitioners seek.

Petitioner Sullivan’s standing is settled by Barrows v.

Jackson, 346 U.S. 249, where a white seller was found

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to have standing to assert a Negro’s rights under the

Fourteenth Amendment in resisting a suit for damages

which a co-covenantor claimed had been caused by the

seller’s breach of a racially restrictive covenant. Here,

also, the injury of which Mr. Sullivan complains has

been inflicted upon him as a direct consequence of his

attempt to recognize a Negro’s civil rights and for the

purpose of punishing that attempt. While Section

1982 states no explicit method of enforcement, courts

have ‘‘the power to afford all remedies necessary to

the vindication of federal substantive rights defined in

statutory and constitutional provisions except where

Congress has explicitly indicated that such remedy is

not available.”” Brewer v. Hoxie School District No. 4,

938 F.2d 91, 98 (C.A. 8). No such indication has been

given in this ease, see 28 U.S.C. 1843(4), and the

damages remedy is plainly appropriate, Texas ani

Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39. Both in order

to compensate the Negro for any harm done and to

deter disobedience of the law, this Court should hold

that the damages are recoverable under 42 U.S.C. 1982.

ARGUMENT

I

RACIAL DISCRIMINATION IN THE ASSIGNMENT OF MEMBER-

SHIPS IN LITTLE HUNTING PARK, INC., VIOLATES SEC-

TION 1 OF THE CIVIL RIGHTS ACT OF 1866

The central question in this case is whether the

‘“property” clause of Section 1 of the Civil Rights

Act of 1866, now codified as 42 U.S.C. 1982, prohibits

the respondents’ conduct—conduct which has effec-

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tively denied to the Freemans, on account of their

race, access to the community recreational facilities

available to all other residents as an incident of their

ownership or lease of property in the area. The matter

is largely settled by Jones v. Mayer Co., 392 U.S. 409,

which construed the statute as reaching wholly private

discrimination with respect to the sale of real estate—

a ruling which necessarily applies to all transactions

covered by 42 U.S.C. 1981 and 1982, since both pro-

visions derive from a single clause of S= = 1 of the

Act of 1866.’ In light of Jones, the only ;«~ ~e issue

here is whether the assignment of the membership

share in the Little Hunting Park is a transaction pro-

tected by that section. That is presumably an aspect

®Section 1 of the Civil Rights Act of 1866 (14 Stat. 27)

read as follows:

“That all persons born in the United States and not subject

to any foreign power, excluding Indians not taxed, are hereby

declared to be citizens of the United States; and such citizens,

of every race and color, without regard to any previous con-

dition of slavery or involuntary servitude, except as a punish-

ment for crime whereof the party shall have been duly con-

victed, shall have the same right, in every State and Territory

in the United States, to make and enforce contracts, to sue, be

parties, and give evidence to inherit, purchase, lease, sell, hold,

and convey real and personal property, and to full and equal

benefit of all laws and proceedings for the security of person

and property, as is enjoyed by white citizens, and shall be sub-

ject to like punishment, pains, and penalties, and to none other,

any law, statute, ordinance, regulation, or custom, to the con-

trary notwithstanding.”

The “property” clause became separated when the rest of the

provision, slightly expanded and made applicable to resident

aliens as well, was re-enacted in haec rerba as Section 16 of the

Enforcement Act of May 31, 1870 (16 Stat. 149, 144). The

property guarantee remained available to citizens alone as part

of the 1866 Act, the whole of which was re-enacted (by refer-

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of the question expressly left open by the Court’s opin.

ion in Jones. 392 U.S. at 413-414 n. 10.* Because, in our

view, Section 1982 clearly covers the case, we do not

here invoke Section 1981. See, however, the govern.

ment’s brief amicus curiae in Daniel v. Paul, No. 488,

O.T., 1968, pp. 9-14.

A. SECTION 1982 BARS RESPONDENT'S CONDUCT

1. The share is an incident of real property covered by

Section 1982

We think there could be no doubt that had the

membership shares in Little Hunting Park, Inc., been

part of a unified development plan, as in communities

such as Reston, Virginia, or the apartment-town house

complexes of Southwest Washington, D.C., Section

ence only) by Section 18 of the Enforcement Act of 1870.

This division was formalized in the Revised Statutes of 1878,

the “property clause” being codified as Section 1978, the rest

as Section 1977, and persists today in Sections 1982 and 1981

of Title 42 of the United States Code.

* After pointing out that 42 U.S.C. 1982, unlike the recently

enacted Fair Housing Law, “does not deal specifically with dis-

crimination in the provision of services or facilities in connec-

tion with the sale or rental of a dwelling” (392 U.S. at 413-414),

the Court added, in the margin (n. 10) :

In noting that 42 U.S.C. $1982 differs from the Civil

Rights Act of 1968 in not dealing explicitly and exhaus-

tively with such matters * * *, we intimate no view upon

the question whether ancillary services or facilities of this

sort might in some situations constitute “property” as that

term is employed in § 1982. Nor do we intimate any view

upon the extent to which discrimination in the provision of

such services might be barred by 42 U.S.C. § 1981 * * *.

° Although petitioners did not plead either Section 1982 or

Section 1981 as a ground for relief, their suits were brought be-

fore this Court’s decision in Jones, and the Court therefore may

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1982 would forbid the developer from selling or

leasing quarters to whites with, and to Negroes with-

out, access to the community’s recreational facilities.

The statute guarantees all citizens “the same

right * * * as is enjoyed by white citizens * * *

to * * * purchase, lease * * * real property.’”’ (Em-

phasis added.) Implicit in that guarantee is the right

to the same use and enjoyment of the property and

all its incidents as a white citizen would receive. As

the record shows, community recreational facilities,

especially swimming pools, are a major factor affect-

ing the desirability and value of residential property.

The routine exclusion of Negroes from such facilities

would both discourage them from buying in that com-

munity, and make any purchase they did make a

poorer bargain than that a white citizen could obtain.

“Solely because of their race, non-Caucasians will be

unable to purchase, own [rent] and enjoy property

on the same terms as Caucasians.’’ Barrows v. Jack-

son, 346 U.S. 249, 254. It would be inconsistent with

this Court’s interpretation of § 1982 in Jones for the

statute to be interpreted as meaning that a Negro has

the same right to buy or lease property as a white

citizen but can be precluded from enjoying some of

the incidents thereof on the basis of his race.°

consider issues arising under the statute, United States v. The

Schooner Peggy, 1 Cranch 103, 110, as it recognized by its

prior disposition of this case, 392 U.S. 657. See Curtis Publish-

ing Co. v. Butts, 388 U.S. 130, 142-143: Hamm v. City of Rock

Hill, 379 U.S. 306.

6 Evidence that the contemporary Congress does not distinguish

between discriminating in the leasing of real property and the

incidents thereof may be found in the Civil Rights Act of 1968,

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The legislative history cited by this Court in Jong

makes it reasonably clear that the Congress which

originally enacted § 1982 in an effort to eliminate the

badges of slavery did not intend to preclude discrimni-

nation only in the actual sale or rental of the dwelling

involved, allowing it to continue with reference to the

incidents of ownership or possession. Thus, in his

speech of January 5, 1866, Senator Trumbull said:

This measure is intended to give effect to that

declaration [the Thirteenth Amendment] and

secure to all persons within the United States

practical freedom. There is very little rinpor- &

tance in the general declaration of abstracl

truths and principles unless they can be carried

into effect, unless the persons who are to be af-

fected by them have some means of availing

themselves of their benefits.

Such language negatives any attempt to read the

statute narrowly. So here, there is no reason to sup-

pose that Section 1982 makes an empty promise (see

Jones, 392 U.S. at 443), which is satisfied if N CLTORS

are allowed to buy or rent homes but are, in practical

effect, banned from the neighborhood by being denied

access to a community recreation facility which is,

for white persons, a valuable incident of the POsses-

sion of real property. The present case involves, at

least, an obvious abridgement or dilution of the right

to acquire a home, when the Negro is told: You may

Section 804(b), which makes it unlawful to “discriminate

against any person in the * * * sale or rental of a dwelling,

or in the provision of services or facilities in connection there-

with, because of race, color * * *,”

* Cong. Globe, 39th Cong., Ist Sess., p. 474, quoted at 392 U.S.

at 431-452; emphasis supplied.

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buy or rent a house, but you may not acquire the

right to use any of the community facilities which are

open to your white neighbors. It seems plain that

this result cannot be condoned without breaking the

statutory pledge to the Negro that he shall enjoy ‘‘the

same right * * * as white citizens.”

Section 1982 is no less applicable here because the

facilities are provided by a separate and ostensibly

private membership corporation to which only some

of the houses in the communities served belong, but

which has as its only expressed standard for mem-

bership the geographic location of the house con-

cerned. We cannot accept the trial court’s view that

Little Hunting Park is a private social club, and

therefore free to discriminate on racial grounds in

membership matters. Every adult owning or leasing

a house in the prescribed geographic area is eligible,

without further qualification, recommendation, or

nomination, to become a member. Save for this in-

stance and possibly one other—which for all the record

shows may have been like it—the assignment or sale

of shares from owner to tenant or purchaser has

always been routinely approved ; 322 such assignments

were made between 1955 and 1966 (A. 125-126). Ac-

cess to the pool is simply as aspect of living in the

area, subject only to paying for the privilege.

The case is in this respect much like the situation

this Court confronted last Term in Daniel v. Paul,

395 U.S. 298. The “club’’ involved there was a large

one, serving people from miles around; visitors pur-

chased a low-cost ‘‘membership”’ each season and also

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paid to use certain facilities on each visit ; such member.

ships were routinely issued to all whites who sought

them, but refused to Negroes. Little Hunting Park is

much smaller in size, intended for the use and enjoy-

ment of a limited number of families in a smaller

geographic area; the initial membership charge is

high and yearly fees are assessed so that it may meet

expenses. But the administration of its membership

policies precisely tracks that which characterized

Daniel v. Paul: subject to the availability of member-

ships,’ any white adult living in the community could

join; Negroes could not.

Just as in Daniel v. Paul, such a policy does not

justify characterization of the facility as a private

club. ““Membership’’ which may be conveyed, assigned,

and held by a corporation, and which is based on geog-

raphy alone, aim the very antithesis of the private social

club. Thus, the Fourth Circuit has held that an estab-

lishment’s “serving or offering to serve all members of

the white population within a specified geographical

area is certainly inconsistent with the nature of a truly

private club.’”’ Nesmith v. YMCA of Raleigh, N.C., 391

F.2d 96, 102. See also Rockefeller Center Luncheon

Club, Ine. v. Johnson, 131 F. Supp. 703 (8.D.N.Y.);

United States v. Richberg, 398 F.2d 523 (C.A. 5). The

hallmarks of the private club are missing here : member-

ship is not even personal to any individual; nor is

any attempt made to achieve any sort of compatibility

of background or interest, save geography. There is

*In 1965, the year in question, 36 memberships were avail-

able, Memberships were available in 7 of Little Hunting Park’s

first 12 years (see A. 144).

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thus no more occasion in this case than there was in

Daniel v. Paul to consider whether the Civil Rights

Act of 1866 applies to bona fide private clubs; our

submission is only that when a privilege which for all

others is incident to housing has been denied for rea-

sons of race, the statute is brought into play.

Nor do we think the fact that not all houses in the

eligible community belonged to Little Hunting Park

impeaches our conclusion that the membership Dr.

Freeman was denied was an incident of the real prop-

erty he had leased. For individuals free to join or not

as they chose, the availability of the facilities still

adds value to the land which cannot be realized by

persons barred from membership on racial grounds.

As a matter of regular practice, shares in Little Hunt-

ing Park do run with titles to realty and with lease-

hold interests on houses for which membership shares

are outstanding. The record shows (A. 99-108) that

northern Virginia generally lacks governmentally

owned and operated recreational facilities; there are

only a few privately owned establishments open to the

general public. The record also supports the con-

clusion that a community swimming poo! facility is a

major factor affecting the desirability and value of

residential property.

Moreover, once an individual has purchased mem-

bership in Little Hunting Park, its racially diserim-

inatory membership policy exercises considerable

leverage over his future transactions involving his own

home. The purchase is a considerable investment,

which enhances the value of his home and which he

will wish to protect. Sale of the home to a Negro, who

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could not purchase the share, is distinctly less ad-

vantageous to him than sale to a white.’ Similarly,

since the corporation prohibits assignments to anyone

other than a tenant and requires annual payment of

assessments to keep memberships valid whether or not

they are used, rental of a home to a Negro is less

advantageous than to a white willing to pay the as.

sessment for the privilege of using the facilities,

Given the absence of alternative public facilities,

Negroes are discouraged from living in the commu-

ity. Any Negro who does purchase or rent such a

home must pay a “race tax” for the membership

rights he is forbidden to use. See Contract Buyers

League v. F & F Investment, 300 F. Supp. 210, 215-

216 (N.D. IL).

We conclude that the action of Little Hunting

Park constitutes a violation of § 1982 relative to Dr.

Freeman’s right to rent real property and enjoy the

use of the appurtenance privileges.

2. The share, as personal property, is covered by Section 1982.

In Jones the Court held that Section 1982 not only

proscribed racial discrimination denying the Negro

“the right to live wherever a white man ean live,”

but also conduct denying the Negro “the freedom to

buy whatever a white man can buy.’’ 392 U.S. at 448.

Apart from its intimate connection with real property,

a Little Hunting Park share is a chattel which has an

inherent value, is freely transferable among whites

® Little Hunting Park’s bylaws do not obligate it to repur-

chase membership shares except in cases of expulsion. A. 29,

195.

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py sale or assignment,” and carries with it the privi-

. lege and land benefits incident to its possession, namely

membership in Little Hunting Park. As such, it has

all the attributes generally associated with personal

property and, we submit, should be regarded as per-

sonalty similar to a share of stock in a corporation.

See Hyde v. Woods, 94 U.S. 523; Page v. Edmunds,

187 U.S. 596; Baird v. Tyler, 185 Va. 601, 39 S.E.

9d 642, 645-646 ; ef. Travelers Health Association V.

Commonwealth, 188 Va. 877, 51 S.E. 2d 263, affirmed

on other grounds, 339 U.S. 643 ; Securities and Exchange

Commission Vv. Universal Service A ssociation, 106 F. 2d

932 (C.A. 7) ; Davenport v. United States, 260 F. 2d 591

(C.A. 9).

% Again, the fact that any transfer or assignment must be

“approved” by the Board of Directors before it becomes effec-

tive against the corporation does not, in the circumstances here,

impair the conclusion of free transferability. So far as the

record shows, denial of approval is used only to preserve the

racial homogeneity of Little Hunting Park. A device thus lim-

ited to what the statute forbids is clearly not to be considered

_ js determining whether or not the statute applies.

1 We do not consider dispositive the fact that under Virginia

law a Little Hunting Park share is deemed a security and, as such,

is rerarded as personal property (Code of Virginia, § 13-105

(1950), 13.1-211 (1964) ). In light of Jones, the federal courts will

be called upen to develop a body of law as to what, for example,

constitutes “property” under Section 1982 and “contracts” under

Section 1981. That determination should not be made subject to

the laws of the 50 State jurisdictions. Lrie R. Co. v. Tompkins,

304 U.S. 64, notwithstanding, it is clear that regarding ques-

tions within the area of federal legislative jurisdiction, the

federal courts are authorized to develop federal law, in order

to assure the necessary uniformity of disposition. £.¢.. Clear-

field Trust Co. vy. United States, 318 U.S. 363; Textile Workers

v. Lincoln Mills, 353 U.S. 448, 457; Howard v. Lyons, 360 U.S.

593, 597. See also United States v. Standard Oil Co., 3382 U.S.

301, 307.

20

For the reasons elaborated above, Little Hunting

Park’s refusal to approve Sullivan’s assignment to |

Freeman should be held to be violative of the statute, —

The right to purchase or lease is surely meaningless

unless the statute also reached the conduct of those

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i who have it within their power to prevent the Negro |

§ from enjoying the rights transferred. Otherwise, the

a + ° . :

3 Negro buys nothing. Unless one is prepared to assume

4 that Negroes will continue to buy even when apprised

:

not also the rights that generally run with it, Little

s Hunting Park will be able to subvert the purpose and

intention of the statute. Cf. Barrows v. Jackson, 346

that their money will purchase only a certificate and |

} U.S. 249.

:

¥ B. SUBSEQUENT ENACTMENT OF A PUBLIC ACCOMMODATIONS LAW

3 IN 1875 DOES NOT INDICATE THAT THE RIGHTS CLAIMED HERE

2 WERE BEYOND THE SCOPE OF THE 1866 LEGISLATION

q . ,

F What has been said sufficiently shows that Section 1 of

i the Civil Rights Act of 1866, on its face, reaches the dis-

; eriminatory policy of Little Hunting Park. A question

arises, however, whether the right to equal enjoyment of

facilities like those involved here must be deemed ex-

cepted from the coverage of the 1866 Act because that

matter is governed by special laws dealing with “places

of public accommodation.’’ We confront the issue be-

3 cause it seems to us the facilities of Little Hunting

Park do, indeed, serve the role of places of public

accommodation.

The argument that the Civil Rights Act of 1866

does not embrace places of public accommodation

A ad AR ae

21

would focus initially on the Civil Rights Act of 1875 “

(18 Stat. 335) held unconstitutional in the Civil

Rights Cases, 109 U.S. 3. The suggestion would be

that this roughly contemporaneous statute must be

looked to as exclusively regulating this subject.

1. At the outset, we stress that there can be little

doubt that the draftsmen of the 1866 Act believed

they were reaching places of public accommodation.

The 39th Congress, which passed the First Civil

Rights Act and framed the Fourteenth Amendment.

legislated against a background of common law rules

affording members of the public not suffering from

racial disability a legal right to use public convey-

ances and to obtain service in inns and hotels, See,

eg., Frank and Munro, The Original Understanding

of “Equal Protection of the Laws,’ 5€@ Colum. L.

Rev. 131, 149-153; Civil Rights Cases, 109 U.S. 3,

37-43 (Harlan J., dissenting) ; Bell v. Maryland, 378

U.S. 226, 295-299 (Goldberg, J., coneurring). Ac-

cordingly, it may be supposed that the declaration

of citizenship and of the right to purchase property

and to make and enforce contracts in Section 1 of the

1866 Act was meant, at the least, to confer on Negroes

the “same right’? to the services of public accom-

modations as white citizens had enjoyed. Compare

*%In speaking of the Civil Rights Act of 1875 we refer to

Sections 1 and 2, which dealt exclusively with places of public

accommodation. Section 4 of the Act, outlawing racial discrim-

ination in jury selection, was vindicated in Fax Parte Virginia,

100 U.S. 339, and is today codified as 18 U.S.C. 243. Sections

3 and 5 were jurisdictional provisions, presumably applicable to

the whole of the Act.

aa

22

Ferguson v. Gies, 82 Mich. 358, 365; Donnell v. State, —

48 Miss. 661. Indeed, opponents of the Freedmen’s

Bureau bill and the Civil Rights Act argued, without

contradiction, that those measures would afford Ne-

groes the right to equal treatment in places of publie

accommodation. See Cong. Globe, 39th Cong., 1st Sess,,

O41, 936; id. App. 70, 183 (Representatives Dawson

and Rousseau, Senator Davis); Jones v. Mayer Co,

supra, 392 U.S. at 433, 435 n. 68. Presumably, the pro-

ponents of the Act offered no denial because they ree-

ognized that this was, indeed, one inevitable conse-

quence of granting Negroes equality before the law,

even in the narrowest sense. See Coger v. North West.

Union Packet Co., 37 Towa 145 (1873) ; Flack, The

Adoption of the Fourteenth Amendment 11-54 (1908),

See also Supplemental Brief for the United States as

Amicus Curiae, Nos. 6, 9, 10, 12, and 60, O.T. 1963,

pp. 119-130.

This reach of the 1866 Act was made clearer by the

re-enactment of the measure in 1870, after the adop-

tion of the Fourteenth Amendment, which had con-

firmed the grant of citizenship to Negroes and ex-

plicitly guaranteed “equal protection of the laws.” See

Jones v. Mayer Co., supra, 392 U.S. at 436-437. That

understanding is reflected in the protracted congres-

sional debates on the proposals which culminated in

the Civil Rights Act of 1875, debates premised on the

same concept of “civil” rights which underlay the

declaration of rights in the 1866 Act. See Cong. Globe,

42d Cong., 2d Sess., pp. 381-383 (Senator Sumner) ;

Gressman, The Unhappy History of Civil Rights Leg-

islation, 50 Mich. L. Rev. 1323-1336. There was, in-

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deed, specific reference to an existing duty to afford

Negroes equal treatment in places of public accom-

modation. As the Chairman of the House Judiciary

Committee, Representative Butler of Massachusetts

told his colleagues, the bill which ultimately was en-

acted as the Civil Rights Act of 1875 *—

* * * gives to no man any rights which he has

not by law now, unless some hostile State stat-

ute has been enacted against him. He has no

right by this bill except what * * * every

man * * * has by the common law and civil

law of the country.

2. The question remains: If freedom from racial

discrimination in places of public accommodation was

already a federal right—secured by the Civil Rights

Act of 1866, re-enacted in 1870—why then did Con-

gress address itself to the subject again in 1875?

We might simply offer the short answer given for

the Court by Mr. Justice Holmes in United States v.

Mosley, 238 U.S. 383, 387, rejecting the argument

that 18 U.S.C. 241 should not be read as reaching

interference with voting rights because they were

specifically dealt with elsewhere: ‘*Any overlapping

that there may have been well might have escaped

attention, or if noticed have been approved.”’ Redun-

daney is not rare in legislation of the period. See, e.g.,

the overlap of Sections 241 and 242 of the Criminal

Code as applied to rights protected by the Fourteenth

Amendment, noticed in United States v. Williams, 341

U.S. 70, 78 (opinion of Frankfurter, J.), 88 n. 2

(opinion of Douglas, J.), and condoned in United

82 Cong. Rec. 340.

ae ATS Mic Ae RA A Maile Naa De aR del na Case RRA MLR i edectch ONS Resa tens Sy weap ay

9

24

States v. Price, 383 U.S. 787, 800-806, 802 n. 11. This —

may be no more than another instance of duplication,

But there is another explanation for the Civil Rights

of 1875.

It is most likely, we think, that the 1875 law was

enacted not to afford a new guarantee of equality in

public accommodations, but to provide a more effec-

tive means, through federal enforcement, of vindicat-

ing rights which already had been recognized. The

1866 law provided no specific civil remedy for viola-

tion of the rights enumerated in Section 1, and its

criminal provisions were applicable only to conduct

done “under color of law.’’ See Section 2 of the Act,

now 18 U.S.C. 242. Negroes who were denied equal

treatment in places of public accommodation were

thus forced to seek redress under State law or through

the uncertain remedies which might be available in

the federal courts. See Jones v. Mayer Co., supra, 392

U.S. at 414 n. 13. The debates on the 1875 law dem-

onstrated an awareness of the need for more effective

enforcement of the right: ‘‘the remedy is inadequate

and too expensive, and involves too much loss of time

and patience to pursue it. When a man is traveling,

and far from home, it does not pay to sue every inn-

keeper who, or railroad company which, insults him

by unjust discrimination” (2 Cong. Rec. 4082 (Sen-

ator Pratt)).

The congressional response to this problem was the

dramatically enlarged federal role assumed by Sec-

tion 2 of the 1875 Act. Although earlier laws had con-

fined criminal penalties for interference with civil

rights (other than voting) to official conduct or con-

25

spiracies, Section 2 made it a federal offense (a mis-

demeanor) for any person, even acting privately and

alone, to deny equal treatment in public accommoda-

tions. And Section 3 directed federal officials to ini-

tiate prosecutions under the Act. Section 2 also pro-

_ yided for a fixed penalty of $500 which the aggrieved

person could recover from the violator in a civil

action exclusively in a federal court. In short, the

apparent purpose and effect of the Civil Rights Act

of 1875 was to focus particularly on one of the many

_ rights secured by the 1866 Act which was appropri-

ate for especially stringent federal enforcement. That

is, of course, a fully adequate basis for the enactment

of supplementary legislation.

C. THIS COURT'S DECISION IN THE CIVIL RIGHTS CASES 1S NOT A

VIABLE OBSTACLE TO OUR CONCLUSION

A question remains whether the decision in the

Civil Rights Cases, 109 U.S. 3, does not foreclose our

conclusion that the Civil Rights Act of 1866 outlaws

racial discrimination in places of public accommoda-

tions. There are two possible difficulties: the first

premised on the holding that the Act of 1875 was un-

constitutional; the second on the distinction drawn in

the opinion between the 1875 Act and the Civil Rights

Act of 1866.

1. Insofar as the Civil Rights Cases denied the

power of Congress under the Thirteenth and Four-

teenth Amendments to reach racial discrimination in

privately owned places of public accommodation, we

think it plain that the authority of that ruling has

been eroded by later decisions. The underlying premise

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of the Fourteenth Amendment holding in the Ciyjj

Rights Cases—that legislation enforcing the Equal

Protection Clause can only reach discriminatory cop.

duct by persons invoking the shield of State law—was

rejected by a majority of the Court in United States

Vv. Guest, 383 U.S. 745, 762 (Clark, J., concurring),

781-784 (opinion of Brennan, J.). But, for present

purposes, it is enough to notice that the narrow view |

taken in the Civil Rights Cases with respect to con-—

gressional power under the Thirteenth Amendment js

inconsistent with Jones v. Mayer Co., su pra. |

We recognize that the Court in Jones did not, in

terms, overrule the Thirteenth Amendment holding

of the Civil Rights Cases, there being no occasion to

confront the ruling directly. See 392 U.S. at 441 1,

78. But the Court did expressly hold that Section 2

of the Thirteenth Amendment authorizes legislation

which does more than merely restore legal capacity

to former slaves. Thus, it was stated that “Congress

has the power under the Thirteenth Amendment ra-

tionally to determine what are the badges and the

incidents of slavery, and the authority to translate

that determination into effective legislation” (392

U.S. at 440). Accordingly, the Court expressly over-

ruled Hodges vy. United States, 203 U.S. 1, a decision

holding—on the authority of the Civil Rights Cases—

that Section 1981 could not validly bar racial dis-

crimination affecting a contract of employment (392

U.S. at 441-443 n. 78). And, in language fully appli-

cable here, the Court broadly held (392 U.S. at 443):

Negro citizens North and South, who saw in

the Thirteenth Amendment a promise of free-

Ny ae OG St

27

dom—freedom to “go and come at pleasure”

and to “buy and sell when they please”—would

be left with ‘‘a mere paper guarantee” if Con-

gress were powerless to assure that a dollar in

the hands of a Negro will purchase the same

thing as a dollar in the hands of a white man.

At the very least, the freedom that Congress is

empowered to secure under the Thirteenth

Amendment includes the freedom to buy what-

ever a white man can buy, the right to live

wherever a white man can live. * * * [Notes

omitted. |

The thrust of the Jones opinion, we submit, is that

it is not “running the slavery argument into the

ground”—as the majority in the Civil Rights Cases

supposed (109 U.S. at 24)—to concede congressional

power to attempt to eradicate the vestiges of the

slave system wherever they persist in the public life

of the community. Whatever the validity in 1883 of

viewing admission to places of public accommodations

as a mere matter of “social rights’? (109 U.S. at 22)

and characterizing the discriminatory exclusion by

the proprietor as involving only a discretionary deci-

sion “as to the guests he will entertain” (109 U.S. at

24), that approach does not conform to the present

reality. Cf. the opinion of Mr. Justice Douglas, con-

curring, in Bell v. Maryland, 378 U.S. 226, 245-246,

952-283. In light of the old common law obligation,

imposed on at least some operators of public accom-

modations, it is difficult to appreciate that the privilege

of obtaining entry and service without arbitrary dis-

crimination was ever a mere “social” matter. But, at

all events, it is today more properly deemed a “civil

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28

right.” Cf. Heart of Atlanta Motel vy, United States,

379 US. 241, 251. In stm, we believe the constity.

tional power of Congress under the Thirteent)

Amendment to reach racial discrimination in modery

places of public accommodations is no longer open to

doubt.

2. We have already elaborated our view that the

Congress of 1866 meant to outlaw the kind of dlis-

crimination revealed by this record. Kyen ASSUMing

the constitutionality of sueh an effort, however, the

Civil Rights Cases may be invoked as apparently

reaching the opposite conclusion, as a matter of stat-

utory construction,

The objection, once again, is largely answered by

the decision in Jones vy. Mayer Co. Insofar as the pre-

vailing opinion in the Civil Rights Cases characterizes

the Civil Rights Act of 1866—in contrast to the Act

of 1875—as merely removing legal ‘disabilities’? (co

109 U.S. at 22), without in any way controlling the

freedom of sellers to discriminate on racial grounds,

that view has been squarely rejeeted by the Court.

F.g., 392 U.S. at 418-419, 436. We add only that,

assiming the 1866 Act ean properly be read as im-

pliedly exempting certain personal transactions, and

assuming further there was once a basis for consider-

ing a right of access to a place of recreation as out-

side the scope of the Act, present circumstances would

now justify treating such a transaction as covered,

D. THE PUBLIC ACCOMMODATIONS LAW OF 1964 DOES NOT AFFINT

THE COVERAGE OF THE 1866 ACT

One final objection suggest itself: that enactment

in 1964 of a Publie Accommodations Law as Title I]

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of the Civil Rights Act of that year (42 U.S.C, 2000a

et seq.), iN some way supersedes the provisions of the

1866 Act insofar as they deal with the same subject

matter. Here, too, Jones vy. Mayer Co. indicates the

answer by rejecting a comparable argument premised

on an interpretation of the Fair Housing Title of the

Civil Rights Act of 1968 (42 U.S.C. 3601 ef seq.) as

repealing or qualifying the “property’’ provision of

the 1866 statute.

1, Of course, the understanding of the legislators of

1964 as to the intent of their predecessors a century

earlier is only very remotely relevant. Certainly, it

cannot override the clear indications given in 1866 and

in 1875 that the original Civil Rights Act reached

places of public accommodations. Accordingly, just as

the Court did not look to the drafters of the Fair

Housing Law of 1968 to determine the scope of the

1866 Act with reference to the issues before it in Jones,

here the Court’s construction of the Act should not be

affected by the views prevailing in the 88th Congress.

Nor is it even important to know what those views

were: whether one assumes that the Act’s full scope

was or was not appreciated in 1964, it is clear that

Title IT of the Civil Rights Act of that year was

not intended to repeal or supersede or amend the

old statute.

2. We note first—as the Court did in Jones (392

U.S, at 413-417)—that there are substantial differ-

ences between the new laws and the old. For example,

Title II of the 1964 Act prohibits discrimination on

the basis of ‘‘race, color, religion, or national origin’’

a0

(Seetion 2OL(n)), while the 1866 Aet presumably ‘ip

plies only to race or color diserimination. Althongh

the 1866 Aet, on its face, prohibits all racially moti.

vated denials of the rights it protects, Tithe TI Applies

only to certain types of establishments having some

Hess With interstate commeree CSeetions ZOE),

2Z01Ce)), The T8660 Aet is eonehed in deelaratory

forms, without reference fo any particular mode

of enforcement, whereas Tithe TE embodies a povific

remedy provision (Seetion 204 (1) ), Significantly, the

new law-—unlike the old expressly provides for op.

foreement at the instanee of the Attorney Ceneral

(Section 206), and the 1964 Act also ereated a Com.

munity Relations Service to assist in the private set.

tlement of disputes relating: to diseriminatory prae-

tiees (Tithe X, Seetions 1001 1004, 12 TLS.C, 2000¢

2000¢-3) to which the courts may refer eases brought

under ‘Tithe Tf for the purpose of achieving voluntary

compliance (Section 204(d)).

In many respeets the differences are comparable

to those between the 1866 Act and the 1968 housing

law whieh the Court noticed in Jones. Here, too, the

old law is “a general statute applicable only to racial

discrimination * * * and enforceable only by pri-

Vate parties acting on their own initiative,” while

the new legislation is a “detailed” and specialized

enactment “enforceable by a complete arsenal of fed-

eral authority” (392 U.S. at 417). Accordingly, if

we assume that the Congress of 1964 recognized the

Vitality and applicability of the Civil Rights Act of

Is66—an assumption apparently indulged by the

Court in Jones with respect to the drafters of the

Pete yk > Ses ee tera eT be.

31

1968 housing Jaw--Tithe TL can properly be viewed

as special supplementary legislation, replacing the

nullified Act of 1875, but leaving the 1666 Aet un-

touched.

UY Ttomay be objected that our conclusion is sonnd

| only insefar as it focuses on those provisions of Tithe

fl which add substantive guarantees or remedial

machinery and ignores the fact that the new law in

vme respects relrenches on the broad coverage of

the 1866 Act. The answer is that, confronted with

the same sitiation with respect to the 196% housing

law, the Court in Jones did not on that account find

a pro tanto repeal; the same result is compelled here.

There are of course many possible explanations

for the Jimitations of the 1964 Act. Some were merely

responsive to the Commerce Clause approach of the

legislation and then prevailing constitutional doubts

concerning the seope of congressional power under

the Thirteenth and Fourteenth Amendments. Most

likely, the full reach of the 1866 Act in this area was

not then appreciated.” But it does not follow that

the Act repealed sub silentio, On the contrary, Title

IT expressly preserves pre-existing rights wider

Federal Jaw and that provision must of course be

honored whether or not it was then recognized that

442 U.S.C. 1981 and 19%2 were briefly noted in the hearings

on the Civil Rights Act as at least prohibiting State-sanctioned

diserimination in places of public accommodation ( Hearing. o

S. 1732 before the Senate Committee on Commerce, <8th Cong.

It Sess., p. 154 (Senator Prouty and Attorney General Ken-

nedy)). It does not appear, however, that Congress understood

those infrequently-used statutes to have the reach which ha-

been confirmed by this Court’s construction in Jones,

ite

—_

the 1866 Act was operative with respect to public

accommodations. Cf. Jones y. Mayer, supra, 392 Us

at 437.

4. The savings clause is as follows (Section 207()

of the Act, 42 U.S.C. 2000a-6(b)) :

* * * [Nothing in this title shall preclude any

individual or any State or local agency from

asserting any right based on any other Federal

or State law not inconsistent with this title,

including any statute or ordinance requiring

nondiscrimination in publie establishments or

accommodations, or from pursuing any remedy,

civil or criminal, which may be available for

the vindication or enforcement of such right.

It will be noticed that only rights under laws “not |

inconsistent” with Title IT remain enforceable, That |

is no obstacle here, however. To the extent that the

1866 Act prohibits racial discrimination by establish- |

ments which are not covered by Title IT, it is not |

‘inconsistent’? with the 1964 Act in the ordinary

sense that it contradicts the basic purpose of the new |

law; it obviously is designed to vindicate the same

right. Moreover, the reference to State statutes and

local ordinances makes it clear that a law with a more

senerous coverage was not “‘inconsistent’’ in the sense

used here. For it goes without saying that Congress

did not intend to invalidate State provisions which

reach places of public accommodation left unregulated

hy the new federal law. It would be turning the stat-

ute on its head to read into it a purpose to confer on

owners of non-covered establishments a federal right

to practice racial discrimination, notwithstanding local

legislation prohibiting it.

32

-

The conclusion that the Civil Rights Act of 1866,

which implements the Thirteenth Amendment, was

repealed insofar as it applies to establishments not

covered under Title II can rest only on the premise

that Congress deliberately determined in 1964 that

the Commerce Clause was to be the exclusive basis

for all federal regulation in respect to racial dis-

crimination in public accommodations. There is no

evidence of any such determination. Cf. United States

v. Johnson, 390 U.S. 563, 566-567." Nor is there any

other indication that Congress meant to repeal the

Civil Rights Act of 1866 in this respect. The result

is that the 1866 Act stands unimpaired.

33

II

PETITIONER SULLIVAN HAS STANDING TO SEEK RELIEF

UNDER THE STATUTE IN CONSEQUENCE OF THE INJURIES

HE SUFFERED IN OBEYING IT

We submit that petitioner Sullivan’s standing to

maintain this action is governed by Barrows v. Jack-

son, 346 U.S. 249. In that case a white seller of real

estate was sued by co-covenantors under a racially

restrictive covenant for damages they alleged to have

been caused by her breach of the covenant through

sale to a Negro. She attacked the resulting damage

judgment against her as state action enforcing the

restrictive covenant, and, therefore, denying equal

* We note that our interpretation of Section 207(b), since it

relates to the enforcement by individuals of rights not specifi-

cally provided by Title II, is also fully consistent with the posi-

tion taken in the dissenting opinion in United States v. John-

son, see 390 U.S. at 568 n. 1.

oe cae |

34

protection of the laws to Negroes in violation of the

Fourteenth Amendment. This Court was required to

decide, inter alia, whether the seller had standing to

assert that claim, since the right apparently ran only

to a third party, the Negro purchaser. The holding

was that she did. The Court found the direct pocket.

hook injury to her, and the necessary effect. of ay

award of damages in giving Vitality to the restrictive

covenant through the agency of the state, together

sufficient to support her claim of another's right.

Petitioner Sullivan’s right to rely on the statute |

in this ease is a fortiori. The statute involved is not |

limited in terms to apply to non-white citizens, nor

does it confer protection solely on the person directly

discriminated against. This Court has acted under it

to strike down a zoning ordinanee on the ground,

inter alia, that it offended “the civil right of a white

man to dispose of his property if he saw fit to do so to

a person of color.” Buchanan vy. Warley, 245 U.S. 60, 81,

Here, as the Court emphasized was not the case in

Barrows, the private action involved in refusing to

honor the assignment was itself illegal. To discourage

such activity, relief should be available to all persons

injured by it, or as a consequence of their efforts to

resist it. A contrary holding would put an wnfair

burden on the white man who seeks to deal with the

Negro in conformity to the statutory command, and

ultimately impede Negroes’ ability to enforce their

rights in the marketplace.

35

Lil

PETITIONERS ARE ENTITLED TO COMPENSATORY DAMAGES

AS RELIEF UNDER SECTION 1982

The provisions of Section 1 of the Civil Rights

Aet of 1866 are couched in declaratory terms, stating

no explicit method of enforcement. To the extent in-

- junctive relief on the complaints is still appropriate,

Jones makes clear that it is within the authority of a

federal court to grant it, 392 U.S. at 414 n. 13; since

that is an established federal remedy, it is available in

any state court where protection of the federal right

is sought, if that court is empowered to grant injune-

tive relief generally. See Code of Virginia « 8-610

(1957). Petitioner Freeman, however, limited his

request for injunctive relief to his own particular cir-

cumstances (A. 18-19). Since he is no longer pos-

sessed of the premises, that request now appears to

he moot. It is thus necessary for the Court to reach a

second question which it put aside in Jones, whether

compensatory damages may be had for violation of

the rights guaranteed by the Act.’ 392 U.S. at 414-415

n. 14.

We think it plain that compensatory damages are

available. As a general rule, federal district courts

have jurisdiction over any action to “recover damages

or to secure equitable or other relief under any Act

of Congress providing for the protection of civil

* Here, as in Jones, any question of punitive damages under

the statute is foreclosed: the action complained of predated by

several years the interpretation of the statute announced in

Jones.

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. 7

rights,’’ 28 U.S.C. 1343(4). While this Jurisdictions)

provision does not create a damage remedy, it ind).

cates that Congress anticipated such awards would

be made under the civil rights acts generally. Further

courts have “the power to afford all remedies neces.

sary to the vindication of federal substantive rights

defined in statutory and constitutional provisions ¢y-

cept where Congress has explicitly indicated that suc

remedy is not available.” Brewer y. Ho.rie School

District No. 46, 288 F.2d 91. 98 (C.A. 8); Bell y

Hood, 327 U.S. 678, 684; see also Texas d: N. O. RB. }

Co. v. Ry. Clerks, 281 U.S. 548, 569-570: Porter |

Warner Co., 328 U.S. 395, 398; Mitchell y. DeMariy |

Jewelry, 361 U.S. 288, 291-292: State of Alabama y.

United States, 304 F.2d 583, 590-591 (C.A. 5), af.

firmed, 371 U.S. 37; J. I. Case Co. v. Borak, 377 US.

426, 433. Were the judicial responsibility viewed

otherwise, the courts would “impute to Congress a

futility inconsistent with the great design of this legis-

lation.” United States vy. Republic Stecl Corp., 382

U.S. 482, 492.

In a word, the existence of the statutory right in-

plies the existence of all necessary remedies. Teas ¢

N.O.R. Co. v. Ry. Clerks, supra, 281 U.S. at 569-570,

Thus, if a statute proscribes specified acts and those

acts are nonetheless committed, this Court’s decisions

support the view that the party injured shall have

available all recognized avenues of relief in order that

he be made whole. As this Court explained in T'eras &

Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39:

A disregard of the command of the statute

is a wrongful act, and where it results in dam-

37

age to one of the class for whose especial bene-

fit the statute was enacted, the right to recover

the damages from the party in default is im-

plied, according to a doctrine of the common

law * * *, in these words: ‘‘So, in every case,

where a statute enacts, or prohibits a thing for

the benefit of a person, he shall have a remedy

upon the same statute for the thing enacted for

his advantage, or for the recompense of a wrong

done to him contrary to the said law.’’”

And see 42 U.S.C. 1988.

Both for purposes of realistically compensating the

Negro for any harm done, and for purposes of deter-

ring disobedience of the law, this Court should hold

that damages are recoverable. We suggest that while

the rules governing damage awards under these provi-

sions must be federal rules, not dependent upon the

laws of the various states, see n. 11 supra, p. 19, the

matter should be left for initial resolution to the trial

court. That court should, however, be instructed to

consider the matter within the proper context, 1.e.,

within the context of the overall statutory purpose,

and with an eye to fully vindicating the federally pro-

tected rights without reference to the limitations or

peculiarities of Virginia law.

“In Rigsby the Court held that injury suffered as the result

of the violation of a criminal statute could be redressed in

civil, injunctive proceedings. Accord, J. 7. Case Co. v. Borak,

supra. See also Wyandotte Co. v. United States, 389 U.S. 191,

202. Similarly, the Court has held that when a statute provides

that damage awards to injured parties will be available for

violation of the law, the richt of such persons to seek equitable,

injunctive relief is implied. Deckert vy. Independence Shaves

Corp., 311 U.S. 282.

SD eae oe ee Pee > . 7 m

38

CONCLUSION

For the foregoing reasons, we urge that the judemer |

be reversed anc the ease remanded to the state cour

for the entry of an order granting appropriate relic

the-casetemanded_to the appropriatecourt. for th:

Erwin N. Grisworp,

PEER NEN RIS Gil SER EY Tne Y

; Solicitor Genera, |

; JERRIS LEONARD, :

4 Assistant Attorney General. |

; Louts F. CLarporye, :

; Perer L. Srravss, ‘

: JOsEPH J. CoNNOLLY,

4 Assistants to the Solicitor General,

, Gary J. GREENBERG,

7 Attorney.

g SrPTEMBER 1969.

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U.S. GOVERNMENT PRINTING OFFICE: 1969

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