BOYNTON v. VIRGINIA

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Argument of Thurgood Marshall

Chief Justice Earl Warren: Number 7, Bruce Boynton, Petitioner, versus Virginia.

Mr. Marshall.

Mr. Thurgood Marshall: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to review the decision of the Supreme Court of Appeals of Commonwealth of Virginia, which, in turn, had denied petition for writ of error, to review the judgment of the Hustings Court of Richmond, Virginia.

The facts in the case are rather simple and not in dispute.

On December 20, 1958, petitioner, a Negro law student from Howard University here in Washington was en route home to Selma, Alabama on his Christmas vacation.

He boarded the Trailway Bus here in Washington, D.C. and en route to Selma, Alabama the bus made a routine stop at approximately 10:40 p.m. in Richmond, Virginia.

The bus drove up, the Trailways Bus, drove up to the Trailways Bus Terminal in Richmond and announced that there would be a 40-minute layoff.

The petitioner being hungry and anxious to eat before reboarding, he went into the terminal.

There were two restaurants there.

One marked for white persons and one for colored.

The petitioner testified that the colored restaurant appeared to be crowded.

Now, here the Commonwealth disputes that because the testimony of the Assistant Manager was that at some time after when this whole incident was going along, he noticed that it was not crowded.

So the question that I submit is, I think we will show later as immaterial anyhow.

The petitioner testified that after he noticed, it appeared to him that this Negro place was crowded, he proceeded to the other restaurant, which was not crowded, and there's no dispute on that, the other was not crowded and he took one of the vacant stools, sat down, and one of the waitresses approached him and told him that he should go over to the other restaurant and the petitioner told her that the facilities in other restaurant appeared to be crowded.

He was an interstate commerce passenger and that he should be served in restaurant -- this restaurant.

After some discussion, the waitress suggested that he purchase a prepared sandwich.

He therefore ordered one of these prepared sandwiches and a cup of tea.

The waitress returned to him and said, she couldn't serve him and she had orders not to serve him.

He explained again that he was an interstate passenger and should be served.

The waitress went away again and this time she came back with Assistant Manager who later testified and hearing the petitioner testified, he showed the Assistant Manager his ticket that he had a right to eat there.

The Manager asked him to move out.

There's no question all along in this that the whole basis of asking him to move and the whole basis of refusing to serve him in this restaurant was because of his race.

At this stage, the manager went out and returned with a policeman.

Then there's some conflict between the testimony of the Assistant Manager and the petitioner in this case as to exactly what happened.

That is whether the petitioner went out and came back or whether the manager went out with a policeman, but it's significant that the manager's testimony says that he reported to the policeman at that point the petitioner was creating a disturbance.

The policeman came in, there's no question about that.

That the policeman entered in -- entered into the discussion, trying to persuade the petitioner to move over to the other restaurant and I emphasize this because later on in this argument, we hope to get to the question of state action.

The state action moves in at this point that the Assistant Manager and the police are jointly trying to persuade petitioner to be segregated.

And the petitioner says, he has a right to eat there and he wants to eat there.

The policeman then asked the manager, “Do you want him arrested? Do you want to get a warrant for him?”

The manager says, “Not unless he refuses to go.”

Then he did get the warrant and got -- the manager straight got the warrant and the petitioner was arrested and put in jail.

The warrant -- the original trial was based on the fact that he was a trespasser, but you'll notice in the record that this trespass allegation was immediately amended to provide that it was one of these trespass cases where he refused to move after being told.

And the statute which we set forth on page four of our brief, the one under which Boynton was convicted, is if any person shall without authority of law go upon or remain upon the lands or premises of another after having been forbidden to do so by the owner's, let's say custodian or other person lawfully in-charge of such land, or having been forbidden to do so by a sign or sign posted on the premises at a place or places where they maybe reasonably seen, he shall be deemed guilty of a misdemeanor and upon conviction there to be punished by a fine of not more than $100 or by confinement in jail not exceeding 30 days or both.

And it's a theory of the prosecution in this case that he was guilty of violating this statute because in fact he didn't move when first asked to be moved.

Now, as I see it the facts in this case add up to this.

There was no dispute that the petitioner was an interstate passenger.

As a matter of fact his ticket was tendered in the Court and that he not only was an interstate passenger, but he was actually in passage between Washington and Selma, Alabama.

This was an interrupted passage.

The bus -- the Trailways Bus stopped at the Trailways Bus Terminal and all of this were on the property of the Trailways Bus Terminal.

Justice Charles E. Whittaker: Now, do you mean to say that this (Inaudible) -- this warrant is not to be filed (Inaudible)?

Mr. Thurgood Marshall: The record shows in this case that the bus company -- the restaurant was owned and operated by the restaurant company under a lease from the Trailways Bus Terminal.

That's what the record shows.

Justice Charles E. Whittaker: And do you present that this was the question to be contested Mr. Marshall?

Mr. Thurgood Marshall: I do not claim that on the facts that are in the record, I do not claim that the bus company owned the restaurant or controlled it as such.

But this Court when the petition for certiorari was filed requested the State of Virginia to furnish whatever evidence they had and it's whether or not judicial notice could be taken to the fact.

And the Commonwealth replied that there was no -- there was no documents which the Supreme Court of Virginia should take cognisance of.

However, the United States, as amicus curiae, has produced to this Court, the documents of the Interstate Commerce Commission which do show that control.

I admit quite frankly that so far as the record is concerned, it's not there, but so far as the present posture of this case is concerned, it is there because it's certainly in the brief of the United States and if there is any dispute as to it, you have it in here representing the Commonwealth today not only the Assistant Attorney General, but also the lawyer from the restaurant and he knows who controls it.

Justice Charles E. Whittaker: Well, did you say that the -- I heard you say (Inaudible)?

Mr. Thurgood Marshall: The body -- the --

Justice Charles E. Whittaker: By that, do you mean the belief itself or --

Mr. Thurgood Marshall: No sir.

It's the report -- the regular report was acquired by law to be made to the Interstate Commerce Commission and a certified copy of that is there.

I don't, at this stage and to this point I don't rely on the brief.

I rely on that which is a regular report filed in the Interstate Commerce Commission and shows that the Trailways Bus Company owns 50% of the share.

Justice Felix Frankfurter: Mr. Marshall does your case rest on the assumption that this Court must take judicial notice of a document filed with the Interstate Commerce Commission --

Mr. Thurgood Marshall: No sir.

Justice Felix Frankfurter: -- under law, if you're under law, which was not introduced and it came into the case (Inaudible)?

Mr. Thurgood Marshall: No sir, I certainly do not take that position.

Justice Felix Frankfurter: Now, I suppose one had a difficulty about taking a judicial notice of that document.

Mr. Thurgood Marshall: If the Court has difficulty --

Justice Felix Frankfurter: Well that the case in this Court, it's briefly coupled by getting notice of publicly filed document in a utility hearing without (Inaudible) has violated the due process, that you can't take notice, judicial notice on that.

Mr. Thurgood Marshall: Well under the, Mr. Justice Frankfurter, the Lilly case, Lilly versus Grand Trunk, which was the one where this Court took notice, despite the fact that the lower courts have not, of ICC regulation but it was a regulation and it's a lot different --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Thurgood Marshall: -- it's entirely different.

I take the position sir that as the -- obviously from the lawyers of the petitioner, and I would've been in an agreement with them, it was their theory that this case was governed more by the Morgan case and under the theory of the Morgan case, which I will get to, it's not necessary to show that the carrier actually controls.

The difference as I see it is that under the Commerce Clause itself, we would not be obliged to show that the carrier actually controlled the restaurant, if in fact the restaurant can be shown to interfere with the flow of commerce.

Under the Interstate Commerce Act, and particularly the motor carriers division, it does limit into a terminal that is controlled by the carrier, but I see not too much difference between the argument which we could make for the clause or the act for this reason.

I don't believe that Congress, in saying specifically that we will legislate on terminals controlled by the -- or carrier, meant to exclude all other terminals.

For example --

Justice Felix Frankfurter: And we are not talking without --

Mr. Thurgood Marshall: Yes.

Justice Felix Frankfurter: -- without an application of the Act.

Mr. Thurgood Marshall: Yes sir and I think I have to do that before I get to the clause, because I want --

Justice Felix Frankfurter: Why -- why -- I don't see -- quite see that.

Mr. Thurgood Marshall: Well as the --

Justice Felix Frankfurter: If the Act takes care of you, why do you go to the Clause?

Mr. Thurgood Marshall: Well the Act will only take care of me sir if we have this other document in here.

Justice Felix Frankfurter: You are having that document presently with the Act, how do you have it for the purpose of the Clause?

Mr. Thurgood Marshall: I don't need the document for the purpose of the Clause if -- if I may just a moment.

I first have to show for the Commerce Clause that either Congress is legislated and I worked with the legislation or that Congress is not legislative.

In the Morgan case, this Court held that Congress is not legislating on the question of separation of the races by the carrier, and then that there should be a national policy or uniformity.

And on this case, the argument as made by the other side is that since this is the Motor Carrier Act said that terminals controlled by the carrier are covered that they meant to exclude other -- all other terminals, and if their position is right, then I have difficulty with the -- with getting under the clause.

But the point I was trying to make at this stage is that I don't believe Congress intended, because here's what you would have --

Justice Felix Frankfurter: They were intended to restrict.

Mr. Thurgood Marshall: Yes sir.

I don't think Congress did, because you take in a town like Richmond, Virginia where this occurred, assuming there were two identical bus terminals, one owned by -- one owned by Trailway Bus and one with no control, but used solely by Grayhound Bus Company with identical facilities, I don't think Congress meant that one was controlled and the other was not.

Justice Felix Frankfurter: I in fact joined in the Morgan opinion.

I think I can ask you why the Court said, why opinion says that Congress had not (Inaudible) statute.

Mr. Thurgood Marshall: It's -- it's said that specifically --

Justice Felix Frankfurter: I -- I know it did and I joined in it, and I would ask you why it did.

Mr. Thurgood Marshall: The only -- it's in the concluding paragraph where the mere statement is made -- but if you give me just a moment may it please the Court, it's spelled here.

Justice Felix Frankfurter: Morgan came after Mitchell, isn't it?

Mr. Thurgood Marshall: Yes sir.

Justice Felix Frankfurter: That's what I'm asking to clear about it.

Mr. Thurgood Marshall: And in Morgan there was the -- the Act was not involved in the -- the Fourteenth Amendment was abandoned --

Justice Felix Frankfurter: By who?

Mr. Thurgood Marshall: I think by the petitioner.

Justice Felix Frankfurter: Well don't let it take your time.

Mr. Thurgood Marshall: Let's spell it.

Justice Felix Frankfurter: Don't let it take your time.

Mr. Thurgood Marshall: I think what the -- the concluding paragraph --

Justice Felix Frankfurter: The reason for my question as so explained to you --

Mr. Thurgood Marshall: Yes sir.

Justice Felix Frankfurter: But no use to you, but I don't want to -- I don't -- I think it's my duty not to reach the constitutional question but their concern.

Mr. Thurgood Marshall: That's the only reason I'm arguing the Commerce Clause.

I would prefer to --

Justice Felix Frankfurter: Why just (Voice Overlap) -- statute the way you've argued for that thing.

Mr. Thurgood Marshall: The statute I -- I -- the -- the only reason I was arguing the statute was because if the statute covers it I can't argue the Board Clause.

Justice Felix Frankfurter: What I'm saying is -- I don't quite appreciate why you have abandoned reference to the statute in your petition for certiorari?

Mr. Thurgood Marshall: The reason we abandoned it was that at the time of petition for certiorari we had a record and we realized that there was nothing in the record which shows the nexus between the terminal and the carrier.

Justice Felix Frankfurter: Is there yet?

Mr. Thurgood Marshall: Is there yet?

Justice Felix Frankfurter: Yes.

Mr. Thurgood Marshall: It's --

Justice Felix Frankfurter: Between the restaurant and carrier.

Mr. Thurgood Marshall: Between the restaurant and the carrier in the record it is not there.

Justice Felix Frankfurter: Well leaving as to -- assume without this in Court which the amicus was included in its brief, there's one complete judicial notice, does if applied the (Inaudible) in showing nexus between the carrier and the restaurant as between this from the point.

Mr. Thurgood Marshall: It shows that the carrier owns 50% of the terminal which leases to the restaurant with the controlled lease which is in the record.

Justice Charles E. Whittaker: What do you mean by controlled lease?

Mr. Thurgood Marshall: It says for example that you, they regulate everything in there that any body could possibly regulate.

Justice Charles E. Whittaker: (Inaudible)

Mr. Thurgood Marshall: It -- it might be an ordinary common type of lease for a bus terminal, but the lease as specifically on page 14 that it must be maintained and an up to date modern bus terminal type.

And then it says a little low, neither the lessee nor its point should be allowed to perform any terminal service.

This is a terminal bus restaurant lease.

It is not the run of the mill lease that you give for an ordinary restaurant in town.

Justice Felix Frankfurter: If this restaurant had been on independent (Inaudible) if this restaurant were off the terminal ground in a separate building (Inaudible) you would have a different case, I take it?

Mr. Thurgood Marshall: I would have a very different case.

Justice Felix Frankfurter: You would?

Mr. Thurgood Marshall: Yes sir because the restaurant across the street would not be in the flow of commerce.

Justice Charles E. Whittaker: Do you mean by that the states in external and not the plaintiff (Inaudible) for the individual plaintiff (Inaudible) than the (Inaudible)

Mr. Thurgood Marshall: Yes sir.

It could be.

It could be.

But that it could not be open to the public.

Justice Charles E. Whittaker: By these opponents by section of (Inaudible) I take you that in this case.

Mr. Thurgood Marshall: I don't know of whether (Inaudible) would be considered as normal in interstate commerce but eating is.

I think sir that the important thing is that eating is a normal result of interstate transportation and has been recognized by this Court as such, but by enclose it would not be.

Justice Charles E. Whittaker: In other words you as I understand it, that the owner of a transportation (Inaudible) is not denied and its focused by (Inaudible) for the restaurant for one purpose independently after the owner of the --

Mr. Thurgood Marshall: I -- I think possibly he could, but my point is not that the terminal alone.

My point which I was trying to get to on this, on Mr. Justice Frankfurter's question, is that if this restaurant is set up for the purpose of serving food to interstate passengers --

Justice Charles E. Whittaker: (Inaudible)

Mr. Thurgood Marshall: By anybody.

Justice Charles E. Whittaker: Well now, by -- by anybody.

Mr. Thurgood Marshall: Yes sir and if -- if that is the purpose of the facility to facilitate the flow of commerce then it cannot escape the Interstate Commerce Clause.

The restaurant across the street is not for that purpose and I submit that in this case, it's quite obvious why they're on the bus terminal is to keep people from going across the street and being out of hand and you can't keep them there so you -- they'll be there to board in the bus too.

So, if they go across the street and something happens to them, there's a possibility of suit for injury and they have set this up as a -- this is the Trailways Bus Terminal, it's not the Trailways shopping center or the Trailways restaurant, it's a bus terminal and I submit that in that bus terminal, that restaurant is on the same basis as the restrooms, the waiting rooms, the ticket window.

Justice Charles E. Whittaker: In other words, it's all public bus terminals.

Mr. Thurgood Marshall: Yes sir.

Justice Charles E. Whittaker: That should be ignored to try and denied section of the facilities if it placed upon dues.

Mr. Thurgood Marshall: I would say that if the -- there is a bus terminal which has all of these facilities then in addition, it has something else possibly, I don't know.

But if it -- if it's not intended to be in commerce, because in this case we've got a facility that's intended if the bus company, if the Trailway Bus Company served sandwiches on that bus they could not segregate point while he ate, so they stopped to give him sandwiches, they can't segregate.

That's true.

Justice Charles E. Whittaker: But are they (Inaudible)?

Mr. Thurgood Marshall: They --

Justice Charles E. Whittaker: -- in the (Inaudible) who has lease the portion of the premises doing it.

Mr. Thurgood Marshall: Mr. Justice Whittaker, the petitioner got on the bus in Washington and he did what Congress has recognized, he began on what he expected to be a normal uninterrupted journey without discrimination.

The bus company dropped him at this bus terminal, he didn't walk in that, the bus company put in there, and the bus company put him in there and that bus terminal is in just as much interstate commerce of the bus.

The only difference is that all.

Justice Charles E. Whittaker: Well, I think there must be (Inaudible)

Mr. Thurgood Marshall: I -- I just -- right there, I don't see the difference between the bus company saying “We'll serve you on the bus or off the bus”.

Justice Charles E. Whittaker: (Inaudible) that the bus terminal has to be bus company?

Mr. Thurgood Marshall: No sir.

I say that the bus terminal -- it's not the name of it is such, but it's what it actually does.

Chief Justice Earl Warren: Mr. Marshall this --

Mr. Thurgood Marshall: This sets its -- yes sir.

Chief Justice Earl Warren: Mr. Marshall, isn't it also a fact that in this situation the --- the bus company maintained a control over this -- this lease and over the conduct of the -- of the restaurant for the purpose of assuring the proper services rendered to its -- its travelers.

Mr. Thurgood Marshall: Well Mr. Chief Justice the -- the lease is between the restaurant and the --

Chief Justice Earl Warren: Yes --

Mr. Thurgood Marshall: -- bus terminal company.

And that for several pages itemized everything it can't go out and serve people on the bus, you can't do this, you can't do if -- it's all obviously geared around service to the interstate passenger.

The fact that it incidentally serves local people is unimportant that the primary purpose is all I think.

Chief Justice Earl Warren: And by reason of the 50% ownership of a -- of the Trailways --

Mr. Thurgood Marshall: (Voice Overlap)

Chief Justice Earl Warren: It has control --

Mr. Thurgood Marshall: There's no any question about it.

Justice Hugo L. Black: May I ask you, take some of your time?

Mr. Thurgood Marshall: Yes sir.

Justice Hugo L. Black: Mr. Marshall, (Inaudible) of this record is the inward ratio is plain, isn't it?

Mr. Thurgood Marshall: Absolutely sir.

Justice Hugo L. Black: Now, do you say that this is in the case of a restaurant across the street?

Not as the record that you confirmatively indicate that this involved in this dissociated restaurant, dissociated from either the bus company or there's more them that might have been externally.

Now the bus terminal is that a subject to Interstate Commerce Regulation?

Mr. Thurgood Marshall: The bus terminal if controlled by the carrier it's -- it's under the Motor Carrier Act.

Justice Felix Frankfurter: If the -- if the -- what we have in this record with reference (Inaudible) Court's relation on page 20 of the record, Mr. Marshall, the witness is in rush that the manager of the bus terminal restaurant was there as the company that operates the restaurant is not affiliated in any way with the bus company is it and the answer was no there was not.

The bus company has no control with the operation of the restaurant none whatsoever.

If I – you can correct me if I'm wrong but I think there's nothing in the record bearing on any question in narrow arrangement as to the relations from the restaurant in the terminal of other than the fact that there's a lease.

Mr. Thurgood Marshall: The lease?

Justice Felix Frankfurter: The lease.

Mr. Thurgood Marshall: Yes.

Justice Felix Frankfurter: Now, so that we have the connection between the lease, between the terminal company and the restaurant.

Mr. Thurgood Marshall: Yes sir.

Justice Felix Frankfurter: So that in that way the denial here that the company has no control, the bus company (Inaudible) what controls the terminal company there and the record at least is silent as to the relations between the bus company and the bus terminals, except for the physical fact and the inference of the physical evidence of the conclusion in this record of narrative or physical fact as to the relation that the bus company determined.

Is that right?

Mr. Thurgood Marshall: That's -- well --

Justice Felix Frankfurter: I mean, we know that has a connection.

Mr. Thurgood Marshall: That has a connection.

Yes sir, yes sir.

Justice Felix Frankfurter: It's stated as in complicated way, but it's true nothing is said as to the relation between the restaurant and the bus company --

Mr. Thurgood Marshall: Company.

Justice Felix Frankfurter: -- except the denial by Mr. Rush, but the record is replete with a lot of inferences to put it mildly of the connection with functionally, between the bus terminal and the bus company.

Mr. Thurgood Marshall: It's -- yes sir.

It's not only the lease, but there is a testimony that this is the type of terminal which has a normal service.

It's the only company --

Justice Felix Frankfurter: So that -- so that those are matters that are in the record from which or other which there are the inferences of transportation facts of life can be drawn.

Mr. Thurgood Marshall: I think that there's no question that the purpose of this bus terminal was to keep this from being just an ordinary stop that this is a bus terminal with all of the facilities normal to a carrier that does not have the facility which he could have on this carrier.

Justice Felix Frankfurter: On the -- on this record if we had no more than this record and the motor carrier (Inaudible), could this terminal separate by white and color?

Mr. Thurgood Marshall: Under the Motor Carriers Act the -- the point would be that the Act as to terminals has that provision controlled by, you would have to find that on the basis of this record it's obvious that the bus terminal was controlled by the bus company.

Justice Felix Frankfurter: And -- and -- from what?

Mr. Thurgood Marshall: I think the Court could do that.

Justice Felix Frankfurter: From what in this record would such an inference be allowed?

Mr. Thurgood Marshall: It's the fact that the bus company -- I -- I couldn't conceive of a bus company driving, buses and there exclusive stop and not having some control on it.

I mean it's --

Justice Felix Frankfurter: Well in the Interstate Commerce Commission and this Court likewise has again and again said we can take certain notice of what happen in the transportation world.

Mr. Thurgood Marshall: Well, in the transportation world on a trip from Washington, D.C. to Salem, Alabama it certainly that there are certain things that the passengers have to do and one of these is they have to eat.

And --

Justice Felix Frankfurter: Control doesn't -- doesn't have to meet 51 percent or --

Mr. Thurgood Marshall: Plus one other thing, if it please the Court, that there is language in the brief on the Motor Carrier Act which says that these services that they must furnish these carriers and this -- this carrier is furnishing that service and he is furnishing at this bus terminal.

Justice Felix Frankfurter: Well, if under the Act -- under duty to furnish those services, I shouldn't think under Mitchell he could furnish them discriminatorily --

Mr. Thurgood Marshall: That's right.

Justice Felix Frankfurter: -- because that would not be a compliance with the duty of furnishing.

Mr. Thurgood Marshall: And plus if, Mr. Justice Frankfurter bear in mind that on this trip --

Justice Hugo L. Black: What act is that they mentioned the duty to comply --

Mr. Thurgood Marshall: It's in the Government‘s brief.

Justice Hugo L. Black: Government's brief.

Mr. Thurgood Marshall: It's in the Government's brief on page -- it starts on page 5 in --

Justice Tom C. Clark: That's (Inaudible) I suppose?

Mr. Thurgood Marshall: Yes it may have a reference to it.

In the performance of any, it's on the bottom of page seven and runs along.

Chief Justice Earl Warren: That's in page seven?

Mr. Thurgood Marshall: Yes sir.

But the other point that I think is even more important is the -- this point about not having this information of the connection of the bus terminal and the bus company even though Boyton was a law school student, but if that's true each place the trade of the -- the bus stops, he's got to have the armed with the corporate papers to find out who owns the bus terminal and that's only way he can find out what his rights are.

And incidentally, when we got copies of it, it cost us around $70 which is four times his bus traffic, but just as in the Morgan case, there are two things involved.

He goes to the terminal in -- in Richmond which is actually owned by the bus company.

So, he would have a right to nonsegregated service under the Commonwealth's position.

Then he stops in another town, in another state.

That bus company does not own the bus terminal.

When he goes in there, and he's legally arrested and he goes another place he can have four convictions by the time he gets through with his journey.

Two of them would be sustained and two of them would be thrown out and that is the opposite of Congress' purpose in the flowing of -- of commerce and I don't think anybody can dispute that.

Justice Potter Stewart: Well now, Mr. Marshall you're familiar of course with Interstate Commerce Commission decision in 1955 in the case of National Association for the Advancement of Colored People against St. Louis San Francisco Railway Company --

Mr. Thurgood Marshall: I know it's --

Justice Potter Stewart: (Voice Overlap) – you were the counsel on record in it and they didn't say that that was Congress' purpose that a luncheon in the Richmond, Virginia Railway (Inaudible)

Mr. Thurgood Marshall: Well, Mr. Justice Stewart we have one interesting distinguishing point.

The restaurant was based on the fact that the restaurant could not have been essential to interstate commerce because it had previously been closed for some 40 years or (Inaudible).

That was the basis of the restaurant, but difference --

Justice Potter Stewart: Yes.

Mr. Thurgood Marshall: -- the interesting thing is that the record shows in this case that the restaurant was built simultaneously with the terminal.

Justice Potter Stewart: Yes.

Do you think that's the sole basis of the decision as for the distinction of the Interstate Commerce Commission made between the restaurant and waiting room?

Mr. Thurgood Marshall: I think in that -- that is my basic point.

I -- I frankly didn't agree with any of the reasoning on that particular point, but that seem to me to be underlying.

Justice Potter Stewart: The Commission says in concluding its opinion that they further find that the operation by a lessee non carrier has separate lunchroom facilities for white and colored persons in the railway station of Richmond, constitutes a function or service which is not within the jurisdiction of this Commission.

Mr. Thurgood Marshall: We -- I say quite frankly, I don't know (Voice Overlap) --

Justice Potter Stewart: At least -- at least to that it can be a difference of opinion as to what Congress' intent was with respect of the lessee operation of a lunchroom?

Mr. Thurgood Marshall: Oh, I think so and I -- I think --

Justice Potter Stewart: The body with expertise charged with the administration of the Interstate Commerce Act is held that it was not Congress' intention.

Mr. Thurgood Marshall: Well, I think the Interstate Commerce Commission I would be willing to agree that they did say that and I -- I submit that they're wrong.

Justice Potter Stewart: That case involved the railroad trains?

Mr. Thurgood Marshall: Railroad trains with dining cars.

Justice Potter Stewart: With that in dining cars.

Mr. Thurgood Marshall: With dining cars.

Justice Potter Stewart: -- involved the Richmond, Virginia Railway Terminal.

Mr. Thurgood Marshall: Yes sir.

Justice Potter Stewart: And the operation of the lunchroom by a lessee in that term.

Mr. Thurgood Marshall: And he said it wasn't essential.

It was not essential on restaurant in a terminal was not essential to transportation -- to the train transportation.

But I submit that a restaurant in a bus terminal for a -- a 24-hour trip at least speak for myself eating would be essential.

In the dining in a train, I can eat in the dining car, or I could get a sandwich from the newsstand what have you been on -- on the bus.

Your only place is in the terminal and I think that that's the difference.

In fact, I don't want to say I agree with the Interstate Commerce Commission point on argument.

Justice Potter Stewart: (Inaudible)?

Mr. Thurgood Marshall: Yes.

Justice Potter Stewart: It's pointing out you state as a (Inaudible) in the Commerce Clause and I'm pointing out maybe distinguished (Inaudible) but at least in the respect of the railway terminal in the same city of Richmond the Interstate Commerce Commission said that Congress has intended.

Mr. Thurgood Marshall: I -- I think that that's it but I -- I still think the underlying factor was that it has been closed.

Justice Felix Frankfurter: Are you saying that in defining your answer to Justice Stewart that for the bus company itself deal with own restaurant or the facilities it makes available providing the food on the such a journey is the facility in which the bus company must serve as part of (Inaudible) bus company?

Mr. Thurgood Marshall: I --

Justice Felix Frankfurter: I think --

Mr. Thurgood Marshall: I don't have to get to that but I -- because Mr. Justice Frankfurter my point is that if they furnish, it's whether if you have to or not, but if they furnish it as an essential service then they have to do it without regard to race and color.

Justice Felix Frankfurter: That's -- that's necessary -- a necessary conclusion, that is the (Inaudible) of many, but if the -- if for example they need not furnish, they can make provisions that they regard as satisfying that local situation.

Mr. Thurgood Marshall: Well except for --

Justice Felix Frankfurter: And then the (Inaudible) from this.

Mr. Thurgood Marshall: Well, except on the Anderson they can do it --

Justice Felix Frankfurter: Pardon me?

Mr. Thurgood Marshall: In the Anderson case they can't do it.

Justice Felix Frankfurter: That's the (Inaudible)

Mr. Thurgood Marshall: Well the --

Justice Felix Frankfurter: -- in the Anderson case -- in the Anderson case.

If they -- if they have hold themselves out -- if they hold themselves back as part of the train travel that what the Anderson case --

Mr. Thurgood Marshall: Yes sir.

Justice Felix Frankfurter: Well part of train travel (Inaudible), they must then treat the law equally and assume they do on racial (Inaudible).

But if that isn't necessary, if they didn't provide any kind of -- which makes no racial discrimination or anything else, assume that is so, I wonder there is gap -- my reason -- my reason about it even if they furnish it then they must disregard or not be able to require.

Mr. Thurgood Marshall: Well, my point was -- Mr. Justice Frankfurter is that, I -- I just have great difficulty seeing the difference between a -- the end of the bus being set up as a small table dining car then I think the Anderson case is right there -- right -- right on the nub.

Well, I don't see any difference between the bus companies dropping you out of place where they are at the same table.

Justice Felix Frankfurter: So, what you're saying is that in fact, when somebody (Inaudible) facilities accommodating thereof (Inaudible) of the Court in accommodating as part of this trip -- as part of what the bus company was doing.

Mr. Thurgood Marshall: I --

Justice Felix Frankfurter: They don't care how it was done.

But that -- if no ownership -- or partnership that stipulates the bus company held itself out from the old -- the old terminology of the Court.

Mr. Thurgood Marshall: Yes.

Justice Felix Frankfurter: It held itself out with furnishing of food.

Mr. Thurgood Marshall: They gave him a blue check stub so that throughout the trip they would know that he was an interstate passenger on that bus.

Justice Potter Stewart: Mr. Marshall, we have – you and I have traveled on busses, we know that a large number of their stops, perhaps most of their stops, so called rest stops not made at the terminals, they are made at private places along the way, with all the private restaurants that are on the roadside, we have the same case if this place -- that kind of a place are this (Inaudible) of terminals.

Mr. Thurgood Marshall: I -- I think there -- Mr. Justice Stewart we -- we get into the matter of degree.

In the first place, I think there's no question of the duty of the bus company to see to it that he is put in a safe place etcetera, etcetera, etcetera, but on the other hand as to the joining to a little small place at the -- at the gas station and incidentally has a little sandwich counter, as to whether that sandwich counter is in the same position as the -- the Richmond terminal bus and all those things aside but obviously not.

Justice Potter Stewart: Well, except -- except in viewing the record certainly if -- if -- that if that's on this record it shows -- it shows no more.

Mr. Thurgood Marshall: Well, Mr. Justice Stewart I -- I don't agree.

I think that this restaurant was set up for the purpose of serving passengers of the Trailways Bus Company.

Justice Potter Stewart: Where is that -- where is that in the record?

Mr. Thurgood Marshall: The lease says it must be maintained as an adequate bus terminal --

Justice Potter Stewart: Yes, but that's the lease between the -- between the terminal company and the restaurant.

There's nothing in the record shows any connection with the terminal company and the carrier.

Mr. Thurgood Marshall: Well, I wasn't trying to assume that I was -- I was trying to talk about the difference in the two places.

The -- the little place side on the road that is a gas station with a lunch counter, it's primarily a gas station to serve local people.

This one is primarily to serve interstate commerce, and because it's set up for that purpose.

Justice Potter Stewart: The restaurant along the roadway is perhaps the -- there are no (Inaudible) primarily to serve interstate commerce.

Mr. Thurgood Marshall: If -- if that is true, then my argument would apply to it.

Justice Potter Stewart: Well, that's what I was asking.

Mr. Thurgood Marshall: But it would not apply to a place that just incidentally had one bus stop by every other day.

Justice Potter Stewart: No, this is the place the regular bus stop and there was boarding place.

Mr. Thurgood Marshall: Well, there are more than few that was left, sir.

Justice Potter Stewart: Now, I'll stop on that brief.[Laughter]

Mr. Thurgood Marshall: Well, there's still a part few left this witness [Laughter] -- as the witness of fact that this terminal --

Justice Potter Stewart: Well I start for this period.

Mr. Thurgood Marshall: -- these terminals are being built all up and down the road and I -- I think the -- there's a need to show that this has been gone, and I think it's the bus company's duty to see to it that this man's trip is not interrupted.

And here we have the bus company put him in the place where he ended up, not just interrupt him, he ended up in jail with the full panoply of the state government on it.

Justice Potter Stewart: When was the statute enacted by?

Mr. Thurgood Marshall: In Virginia --

Justice Potter Stewart: Well is it a --it's not a rendered statute.

Mr. Thurgood Marshall: Oh no.

No, no sir.

No sir, its -- its way back as I remember a research of the codification of the -- the oldest.

It's at -- it's not out of the ordinary statute.

I think that since I -- I was trying to save some time, I would like to say that while I agree fully and I -- I consider it my duty to argue to this Court the points that could decide in this case without getting to the constitutional question, we still have brief and we are prepared to argue it that if those points are not being sufficient, we are also relying upon the fact that it is a violation of the Fourteenth Amendment, but I don't think that the Court has to get to the Fourteenth Amendment at all.

It merely says that if necessary, we still think that the refusal to serve Boynton be put aside that the action of the state government in arresting him not for trespass, not for refusal to leave, but with the full knowledge of the police and the magistrate that the sole reason for his refusal to move was that -- I mean the sole reason for the request for him to move was race or color that we do have sufficient state action and we rely on our notes in our brief on Shelly and Kramer (Inaudible) Jackson --

Justice John M. Harlan: Did I understand you to say that the bus ticket -- bus content (Voice Overlap) stating and that's titled in to moot on one or another.

Mr. Thurgood Marshall: Alright.

The -- there are services that said that where the services are offered, they must be offered alike.

Justice John M. Harlan: Is there --

Mr. Thurgood Marshall: -- it's almost the same as the --

Justice John M. Harlan: Is there a copy of the ticket in your record?

Mr. Thurgood Marshall: It was introduced but it -- but it's not in the record.

Justice John M. Harlan: Well is it here in the Court?

Mr. Thurgood Marshall: I don't think so.

Justice John M. Harlan: Well this --

Justice Felix Frankfurter: You're asking to (Inaudible) to such a provision is on the ticket?

Mr. Thurgood Marshall: Oh, no sir.

I said it's in the Motor Carrier Act.

Justice Felix Frankfurter: The Motor Carrier Act (Inaudible)

Mr. Thurgood Marshall: Oh, no sir.

I'm sorry, maybe I did.

I -- I said, the Motor Carrier Act provides that when services are rendered they must be rendered indiscriminatorily --

Justice John M. Harlan: I don't think I understood your argument.

I thought you said in the --

Justice Felix Frankfurter: And what you --

Mr. Thurgood Marshall: Oh, no sir.

Justice Felix Frankfurter: And what you're saying is, although they are not compelled by the act of furnishing services they may give more elegant services (Inaudible) and it's legal whatever it is if they offered service within the general circle of transportation service for which they're engaged, which they're offered, then they must offer on a nonsegregated basis statute.

Mr. Thurgood Marshall: I think that -- oh, yes there is no question Mr. Justice Frankfurter, that's not the point.

Justice Felix Frankfurter: Although they couldn't be compelled, although the -- although, they didn't see things not from that (Inaudible)

Mr. Thurgood Marshall: I think that the -- the -- I think that that's correct and I think we take the position and as a matter of fact I know we take the position that once these services are offered one way or the other, they've got to be -- there's no question after the starting with the Mitchell case on down to the present, there's no question about that, it seems to me and the decision to this Court.

Now, they -- the -- the Commonwealth is trying to say that this is a little private institution.

Well, we take the position that it's not, it's actually in interstate commerce and we make our position clear.

We believe that under the Commerce Clause, the action in refusing to serve in and in fact having him arrested, leaving just one point that he was only there for 40 minutes when they refused to serve him and he'd said, "Well I'm going to insist on it," they could've waited 40 minutes and let him get on his bus, but they didn't, they had him arrested.

And therefore integrated with the flow of commerce at least insofar as Boynton was concerned.

And on that basis we think that not only as it's an interference with Commerce under the Commerce Clause, we also take the position that if necessary, if the Court finds that it has to get to the point that we think it's a violation to the Fourteenth Amendment.

Justice Hugo L. Black: What -- what could the Court can do if we review on all those and put in the record (Inaudible) to make it quite different with the questions in total which is known by the Court, give result to the (Inaudible)

Mr. Thurgood Marshall: No sir.

In -- in most instances in most states, I think the procedure there would be the same to fact to the State Court of Virginia.

I know there's no way for -- for Virginia to do it.

This -- that's what I -- as I read the Virginia.

They say it's the way to the New York case.

But I -- I want to make it clear, Mr. Justice Black, that I don't -- while I admit that for technical reasons the Interstate Commerce Act might be held not to apply because of the lack of this piece of evidence, I don't take the position that he cannot, as a matter of fact I say emphatically, that this Court can decide the case under the Board's Commerce Powers without reaching the Act as such.

Justice Hugo L. Black: It seems to me that the case probably wouldn't have anything to do with this under both for the principle, that this is decided on Sinclair against the Missouri Pacific (Inaudible) but we held that operational facilities required (Inaudible) the railroad be liable for negligence that those operational facilities were turned over to independent contractor, a person wholly disconnected with the railroad, there was nevertheless be – it didn't have to be (Inaudible) so as the part of the view.

As I understand it that's what he's been arguing here.

Mr. Thurgood Marshall: I think --

Justice Hugo L. Black: (Voice Overlap) -- part of the transportation under this case.

Mr. Thurgood Marshall: That's our position.

Justice Charles E. Whittaker: (Inaudible) -- that there is a bus that may not be reflection of the (Inaudible) in the district operation (Inaudible) by the purposes.

Mr. Thurgood Marshall: I say --

Justice Charles E. Whittaker: -- It's non-delegable as in the Sinclair case.

Mr. Thurgood Marshall: Mr. Justice Whittaker, I say that it's an abstract proposition --

Justice Charles E. Whittaker: I beg your pardon?

Mr. Thurgood Marshall: It's an abstract proposition signed to the (Inaudible), but if they lease a facility that is essential to interstate commerce which they are operating on, they cannot escape the responsibility by doing it.

No more so than a railroad could escape it by leasing its dining car to somebody else.

Justice Charles E. Whittaker: I presume this may be (Inaudible) the bus company or the carrier because insofar, this (Inaudible)

May I ask you this, the day the bus company (Inaudible) the question of the breach should not do it?

Mr. Thurgood Marshall: Breaching?

Justice Charles E. Whittaker: Breaching.

Mr. Thurgood Marshall: If it's there duty?

Justice Charles E. Whittaker: Yes.

Mr. Thurgood Marshall: No sir.

Justice Charles E. Whittaker: Is that which?

Mr. Thurgood Marshall: I shouldn't be --

Justice Charles E. Whittaker: Well then, is this unlawfully made a contract of (Inaudible) a portion of the premises to somebody to do any property of --

Mr. Thurgood Marshall: Not if it's in the bus terminal and it's the only one there.

You see, I mean -- I mean, I -- I think Mr. Justice Whittaker that if the facility that they lease is the one facility of that kind that is needed for -- to facilitate interstate commerce which they have a duty or responsibility, or it's norm, they cannot lease that to a private individual and get it there for out of this flow of commerce.

Justice Charles E. Whittaker: You're talking about (Inaudible)?

Mr. Thurgood Marshall: Yes sir.

That's -- that's --

Justice Charles E. Whittaker: Well, of course that's a different proposition that I have in mind.

I have in mind that this brief (Inaudible) to me that happens to be under your (Inaudible) and I then have the right I should think to do this in my state to the exclusion of the landlord for any lawful person.

Mr. Thurgood Marshall: I -- I think sir that would be true, but it would not be true if a restaurant that is essential to interstate commerce.

Justice Charles E. Whittaker: Well, I could understand.

Justice John M. Harlan: Do you think the -- as you said in this record in the interstate commerce presents and puts to the Supreme Court.

Justice Charles E. Whittaker: The interstate commerce was -- yes sir, it was raised not the Act.

The Act was raised in the first -- the motion of dismiss the warrant.

It appears on page six raised the Act as well as the Clause I think and --

Justice Felix Frankfurter: As far as this record is concerned, there will always be a fair way.

Justice Charles E. Whittaker: Well so --

Justice Felix Frankfurter: (Inaudible)

Justice Charles E. Whittaker: -- evidentially yes.

Justice Felix Frankfurter: No, no.

As -- as claims --

Justice Charles E. Whittaker: Oh.

Justice Felix Frankfurter: Claims that were made or coordinately made under the Interstate Commerce Act, in the Commerce Clause, and the Fourteenth Amendment.

Justice Charles E. Whittaker: It's -- for example it says on page five --

Justice Felix Frankfurter: All entertained way, no more, no less?

Justice Charles E. Whittaker: No more, no less.

Justice Potter Stewart: That's the federal statute, isn't that right?

Mr. Thurgood Marshall: Yes, the statute was raised in one specifically, and then in the assignment of errors on page five it says the Court erred in refused to dismiss the ;prosecution on the ground that the statute apply, has applied on constituted attempts during that time.

Justice Potter Stewart: What about the federal court, I'm talking about the Interstate Commerce Act.

Mr. Thurgood Marshall: That's what there talking about.

Justice Potter Stewart: Now, here on the ground of the statute as applied that's obviously referring to the statute of the Commonwealth of Virginia.

Mr. Thurgood Marshall: Yes sir.

Justice Potter Stewart: I'm talking about the Interstate Commerce Act.

Mr. Thurgood Marshall: Mr. Justice Stewart, it says the Court erred in refusing to dismiss the prosecution.

They mean inadvertent on interstate commerce.

The motion to dismiss the warrant is on the following page, it's on page six.

Justice Potter Stewart: Yes.

Mr. Thurgood Marshall: And in that one, they say specifically --

Justice Potter Stewart: Where is it?

Justice Felix Frankfurter: (Inaudible)

Justice John M. Harlan: Paragraph one.

That is applied on the statute of the opinion.

Justice Felix Frankfurter: Yes.

But it goes on, on the --

Mr. Thurgood Marshall: (Voice Overlap) -- it says, it says that in the violation of the (Inaudible)

Justice Felix Frankfurter: Commerce Act --

Mr. Thurgood Marshall: I think when you read the two together, frankly it is rather broad language we confess but I think --

Justice Potter Stewart: I see.

Mr. Thurgood Marshall: -- but I think that it -- it does covers.

Justice Felix Frankfurter: Covers it -- it invokes both in the same way no more, no less.

Mr. Thurgood Marshall: That I -- I agree sir.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Thurgood Marshall

Mr. Thurgood Marshall: May it please the Court, I would like, if possible, to reserve some time for rebuttal.

Chief Justice Earl Warren: Mr. Rogers.

Argument of Walter E. Rogers

Mr. Walter E. Rogers: Mr. Chief Justice, may it please the Court.

I think that this Court has very clear conception of the facts in this case.

There are two I think I might mention.

It is clear that the petitioner was a passenger in interstate commerce.

His traveling in interstate commerce would've been in Richmond (Inaudible).

He left the bus and came into a private owned and operated restaurant located in the terminal building in Richmond.

That privately owned restaurant operated separate facilities for members of each race.

The testimony is specifically clear that the restaurant is in no way affiliated with or controlled by the bus company.

It operates under a lease, just as a lease of any other business establishments at such of its term at least it's on the record but the policies of the restaurant with those other restaurant.

Petitioner came into the section which is reserved for white patrons and was informed that he could not be served there, and that he would have to go into the other portion of the restaurant which is reserved for Negroes.

He refused to leave the premises and when he refused to do so, he was directly arrested for trespass after warning.

The Virginia statue is quoted at page 4 of the brief on behalf of the Commonwealth.

And it simply provides that it is not a segregation statute at all.

It is a statute which provides that if any person shall without any authority law go upon or remain upon the grounds of premises of another, after having been forbidden to do so by the owner or the person in control, then he shall be deemed guilty of a misdemeanor.

That statute has been on the statute books of Virginia since 1934.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: 1934, it was enacted as Chapter 165 of the Acts of the Government (Inaudible) in 1934.

There have been one or two amendments since that time.

The provision for sign was included after the warning by signs and anyone who is familiar with the legislative history of that statute as to where the fact of that provision was put in there to deal with these unattended parking lots where automobiles were driven in a private property where there was no attendants so that happen to be the reason why that was inserted in.

The statute does no more than impose criminal sanctions -- criminal actions for continued trespass after the party is instructed to leave without authority -- if he is --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That is true.

That is true.

If he had any right either by contract with the party or anything of that sort or -- if he was proceeding as a peace officer or if this is a matter involving interstate commerce where he derives some way to go there as being an interstate passenger then he is there with authority of law and would not be guilty of trespass when refuses to leave but he has first got the authority whereby -- which he is owned the private property.

Sir?

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, I think it would.

Well, the owner has the record --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, in Virginia, privately owned property, the owner has a control, that the owner directs a party to leave and he refuses to do so, the offense is committed unless the party himself can bring forward something to show his authority for being there.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, I think it is implicit in any situation where a person owns property, whether it be my home, my store or my facility and I direct somebody to leave and I have it –-

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: And he has no authority of law to stay there.

He's guilty.

I would say it's upon him to show it.

It's a defense to his actions in the premises because I think you can say.

Though, I don't think absolutely it's not evidence.

This is an affirmative defense if he is going to show that he carries a search warrant or that he has some right to be there.

The only right this man asserted in this case was, "I am an interstate passenger.

Here's a ticket I'm using to ride on the bus."

That was the elements of his contention that as why we was lawfully there.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That's -- that's -- that he is -- if I 'm on somebody else's property, and the owner of the property directs me to leave, he's got to show his right to remain.

That was not shown here and if our position be correct in the present situation.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, I know of no right that a person has to remain at somebody else's property after he has been ordered to leave.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: And, they offer as their evidence to support their right this ticket that he used when he was travelling in interstate commerce and that's all that he offers and that's all this case is about as to whether that give him the right, each claims no other right.

He offered no other proof of it and that was why he was there.

The evidence is to why he was there is clear.

He came in claiming the right to be served in that restaurant.

So, the question of why he is -- is present in this case certainly is before this Court and has been before every Court that has considered this case.

The question is --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That's it, because of proof for the purpose that he was there and that's the only purpose that he was there, all the purposes he pretended to be there and if that gives him authority of law, he has it, but if that doesn't (Inaudible), he doesn't have.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: In that situation our (Inaudible) is this.

All of the evidence here at page 20 of this transcript is that this restaurant was not in any way controlled, affiliated with or operated by the bus company.

The lease, purely a private lease between an owner of a piece of property, Richmond Bus Terminal, Inc.

Richmond Bus Terminal, Inc. is the owner of this building and Richmond Bus Terminal Inc. leased this property.

The lease is in the record at 14 through --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Page 9 through 17.

There is no evidence in this record as to who owns the Bus Terminal, Inc.

There was --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I -- you want me to testify as to what I have heard or I may know?

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I will be frank enough to say this that the evidence, certified copies of the records of ICC of the application that were filed by two companies, Carolina, Richmond, I believe, (Inaudible) showed us all the time that report was filed that the Bus Terminal, Inc. was owned 50% by two operating carriers.

They were the Carolina Coach Company and Virginia Stage Lines.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I don't know Your Honor.

The testimony in that is that he came in on a Trailways Bus and it's my understanding, this is not factual evidence either, but it's my understanding that Trailways is the name that designates a number of different bus companies all over the country that are not necessarily affiliated at all.

It's more or less a trade name under which they -- they operate.

I don't know whether it was Carolina Coach Company Bus or a Trailways Bus Company.

Virginia Stage Lines Bus Company that this man came into this town (Inaudible) or not or where there were some other carrier that may or may not have been -- it was a carrier operating in interstate commerce because it came from Washington, and was going to the South, but frankly I do not know.

I -- I just don't have the information.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I wouldn't think that the unusual (Inaudible)

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: No, I don't consider it important.

I'll deal with the question, Your Honor this -- in this way.

If we assume for the moment that this man is travelling on a Carolina Coach line, one of the two companies, that the record of gas and receipt noted the time of (Inaudible) owned Richmond Bus Terminal, Inc, 50-50.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: There is still no evidence that Richmond Bus Terminal, Inc. controlled or operated this restaurant.

I might say this first, as far as the assignments of error are concerned, and really what was considered by the courts below, in this case, first originated on the motion to dismiss the warrant, it's found on page 6, the petitioner relied on two rights.

One right afforded him by the Interstate Commerce Act, and the other, by the Interstate Commerce Clause itself.

The provision as far as the Act I believe seems to be above except on the basis of this evidence that is tendered here for the first time.

The evidence, it was not considered by any of the courts below.

They haven't considered the effect of that one way or the other and these certified copies of the ICC that is tendered by the amicus curiae.

That has not been before the Virginia Courts, either the Supreme Court or the lower court.

That evidence had been introduced below what kind of evidence would have been offered regarding the history of these companies I don't know in meeting that question, but the warrant -- the most when they dismissed the warrant, they did raise Interstate Commerce Act.

They apparently abandoned it early in the game.

It was not made a basis of an assignment of error to the Virginia Supreme Court.

The assignments of error appear on page 5 and the contention on that score is that the Court erred in refusing to dismiss the prosecution on the ground which the statute has applied, that is the Virginia Statute, unconstitutionally attempts to regulate commerce.

That I take it, it presents a constitutional question not a statutory question.

The petition for writ certiorari to this Court does not make this point that the Interstate Commerce Act, it's -- I mean, the Interstate Commerce Act itself gives this right.

It affirmed this rule and as an after thought here that --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: I beg your pardon, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: By motion to dismiss in the --

Justice Felix Frankfurter: The warrant.

Mr. Walter E. Rogers: -- motion to dismiss the warrant, in the Hustings Court of the City of Richmond.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Well, possibly so.

It -- it was before the Hustings Court.

The issue was not before the -- the Virginia Supreme Court by the assignments of error and carried out that.

Apparently --

Justice Potter Stewart: Mr. -- Mr. Rogers, the initial trial in Richmond in the police court.

Mr. Walter E. Rogers: That's correct.

Justice Potter Stewart: And then, was there a trial de novo in the --

Mr. Walter E. Rogers: Yes, Your Honor.

Justice Potter Stewart: -- Hustings Court?

Mr. Walter E. Rogers: Yes, sir.

Justice Potter Stewart: What is the Hustings Court?

Was it a general jurisdiction?

Mr. Walter E. Rogers: That's the Court on general jurisdiction as of the court of record where he would have then entitled to a trial by jury if he had requested that he was tried by the jury by the Court.

Justice Potter Stewart: It isn't a trial de novo --

Mr. Walter E. Rogers: Trial de novo completely, the proceedings in the police court have no standing one, evidentiary value or anything of that sort in the Court of records.

It is the Court just next below the Virginia Supreme Court in line of the jurisdiction.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I believe that --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I believe that federal statutes of -- Virginia Statutes of federal decision amount us a judicial notice.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That's right.

The restaurant is operated as one as a -- in the terminal building but it says, local train as well as passengers that may come in to the terminal, whether in intestate commerce or otherwise, The -- the white restaurant is in one section, the colored restaurant in another.

The petitioner could've been served there, it was not crowded, the evidence shows that.

So that is the status of the record on that point here.

The Interstate Commerce Act, the reason I think that counsel has not pressed the Interstate Commerce Act question is the fact that counsel of record here was also counsel of record in N.A.A.C.P. versus St. Louis and San Francisco Railway which involved a hearing before the Interstate Commerce Commission as to the practices of a number of operating railroads, the railroad terminal building at Broad Street in Richmond, Virginia and also a leased restaurant facility within that building operated by I believe the Union News.

The ICC, the agency which Congress had set up to carry out the Interstate Commerce Act and enforce the policies and declaration of policies of Congress had the question as to whether a lessee non-carrier concern operating a restaurant in a terminal building was required to serve without discrimination.

The ICC held I believe in 1955 and 1956 that the Interstate Commerce Act did not apply to such privately owned and operated lessee non-carrier concern in the operation of its restaurant facility in the railroad terminal station in Richmond, Virginia.

So far as I'm aware, Congress has not taken any further steps to extend its noted power to regulate interstate commerce to specifically say that such a closely related facility should be operated on a nondiscriminatory basis.

Now in that case, the ICC had evidence that the terminal corporation there was in fact owned and controlled by operating carriers in an interstate commerce, evidence that we do not have here except as -- has been offered here by a (Inaudible).

The --

Justice Potter Stewart: It's true is it not that there is a difference between that case and this in that there, they were finding the restaurant was not an essential part of -- of the transportation business carried on by the railroad in that terminal?

Mr. Walter E. Rogers: That is true.

It may well be true here.

Justice Potter Stewart: Here, there is no finding one way or the other.

Mr. Walter E. Rogers: There's no finding.

No -- no finding about the Court one way or the other but if the Act had been pressed and this question of operating control had been shown, what the evidence would've been as developed as to how many years this particular carrier had been operating in the City of Richmond, you got a terminal facility which it didn't even know how to control and operate.

Well, they have -- it ever had a restaurant before that for 19 years or 30 years, it might well have been developed.

That is why I think it is improper at this stage to begin to consider evidence dealing with the -- with the control.

Conceivably, you might have an entirely different -- if the court below had considered that, and if the litigants had developed that phase of the -- of the question.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, I think -- I think the difficulty with that of course obviously a person has to eat.

It isn't in the question, but that it takes -- you can take judicial notice of that without any question.

But as to how, that service is pressed, I myself wouldn't let -- I don't know if it is a matter of such a common law as Mr. Justice Stewart has pointed out that a lot of these places, they pull up the side of filling station on the road where the operation, the feeding operation is furnished by somebody that has no relationship with interstate commerce.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: How those terminals are operated?

Well, they're operated only in control by the carriers themselves whether they are owned and controlled by the person who furnishes a place for the buses to come in, whether the restaurants in them are operated directly by the bus company, I don't think it's a matter of which we could take judicial notice without proof of what the particular facts were.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, I think as far as this, we have evidence here that there was a terminal building that served interstate buses, that it did have a restaurant in it, that it did have a restaurant in which some of the interstate passengers --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes.

Well (Inaudible) a State as well as local and we have the actual lease that exists between the two corporations, but we have here --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I would assume so.

I think the -- if I'm not mistaken, the evidence show that it was 40-minute layoff and whether it's a 40-minute layoff we go to -- so we can step across the street and eat in a restaurant operated by me whether he's going to eat in this restaurant or whether this restaurant serves many people or few people in interstate commerce or otherwise, they -- to get to the act --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That is correct.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: No, they are made by the operator of the restaurant.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: There are actually two rooms.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Two rooms.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I would say this, the restaurant facility, when the building was built, the restaurant facility was -- the rooms for it were built at the same time.

I mean it was part of the investment.

Now, what has --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: The terminal company built the buildings -- built the building --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I -- I think so, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, he may have Your Honor.

I am not --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: The owner of the restaurant facilities under the lease were to be put in by the restaurant.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I don't know Your Honor.

I think of such.

I don't think there is any evidence on that as this to how much of the construction whether they turn certain space over.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That there ought to be two separately operating restaurants?

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: The lease of course is here.

Well, I saw here by leases itemizes under the lessee subject to the terms and condition hereof all the term that the room space.

The space then said Trailways Bus Station or used by lessee as a restaurant, lunch room or sort of that and then used that which space is more particularly and described as follows.

That certain space in the basement and on the ground floor of Trailways Bus Terminal to be constructed at Northwest Corner Broad Street in the City of Richmond and assume (Inaudible) on two diagrams he had to attached and made a part here that's on the lease of Exhibit A and B and I don't -- they were not introduced by in evidence.

And frankly about that it was a certain space in the building.

That was to be designed by the restaurant company or that I don't know.

And --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I'd rather think they were.

It's what I -- if we ought to speculate on it.

That's -- that's my opinion because I imagine when they constructed the building, they constructed (Inaudible) that went into the building and things of that sort although I don't know.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, sir.

I think it maybe an open space of the counter or table arrangement that separates them of whether they are actually two separate rooms and that I don't know, nothing in the record the one lease -- one lease for the total space.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Nor did the lease say that you should segregate or not segregate.

Justice Potter Stewart: But you understand that this lease covers both restaurant operations?

Mr. Walter E. Rogers: Yes, sir.

Justice Potter Stewart: That the single lessee of --

Mr. Walter E. Rogers: Single lessee operating two restaurant spaces within the same building as based (Inaudible) to dining room facilities, lunch counter facilities whatever they are --

Justice Charles E. Whittaker: (Inaudible)

Mr. Walter E. Rogers: A restaurant?

The lease -- the lease is paid or used by the lessee as a restaurant, lunchroom, photo shop and newsstand which said space is described that was described by the few (Inaudible) part of this exhibit that was introduced.

The lessee was to provide all of the facilities as far as stalls and restaurant equipment and the things of that sort.

And it set it in what the terminal building specified in the way of rental although what matter of operation but on this score as to have these restaurants that would be operated, that was a matter less to this private concern using the space in the building.

Justice John M. Harlan: It could not sell anything (Inaudible) without the lessor's permission in its commodity that is not usually sell to a stall on a bus terminal (Inaudible)

Mr. Walter E. Rogers: You're reading from Section 7 --

Justice John M. Harlan: -- paragraph seven on page 11 as you said to the lease.

Do I read that correctly?

Mr. Walter E. Rogers: That's correct, yes.

Justice John M. Harlan: If it wanted to sell food, which might be of interest to local inhabitants.

It's not customarily sold to the bus terminal -- it could not do so without the consent of the lessor.

Mr. Walter E. Rogers: That is correct.

Unknown Speaker: Then it would be true if --

Mr. Walter E. Rogers: That will be true.

They started selling whiskey by the drink in the operator or the lessor object that he has a right to say it so.

But the extent of the control between the two companies is not specified in this brief which is on the record.

The Interstate Commerce Act, the same language of viewing into section which was substantially the same in Section 4931 dealing with common carriers and railroad section I believe.

And in the Chapter 300 chapter in Section 316 (d), with 4931 was on the book pro--prohibiting the carriers.

It prohibits carriers as it prohibit anybody thus performing any function and have a closely all -- distantly related to interstate commerce.

It regulates carriers and regulate restaurant after all.

It regulates carriers.

316 (d) again regulates carriers by motivators and it prohibits discrimination in any form by them.

Now, the evidence here as far as this terminal is concerned, the terminal itself as distinguished from the rest which under the control of the terminal corporation.

If the consideration be given to any ownership or control of that corporation, the terminal facilities where there was no policy of segregation in any of its facilities, it's restaurant and the like, were there was no requirements, the evidence in this -- and this right that it there was no segregation at all in connection with the operation of the terms.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Of the lease --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: You're reading from the top of page 14 --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Neither the lessee nor its employees shall be allowed to perform any terminal service other than that pertaining to the operations outlined in this contract or shall the lessee or its employees sell transportation of any kind or give information pertaining to schedules, rates of transportation matter that's where referrals and certain groups for the properties of the lessor.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: To -- in -- in the operation of this restaurant and you -- you do nothing else for us but operate this restaurant.

That -- that's what you are suggesting then.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: I think that's subject to -- to that interpretation.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: There again there's an indication that the terminal operator, the lessor wanted the modern-up-to-date restaurant in its terminal.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: I think that -- I think that is true.

It's obviously that people do eat, they'd run in the terminal, they don't have a restaurant.

We don't have the operation and control except that we specify here over to you, you do.

We're not there.

You operate this.

That if this was the -- it's --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: No.

I think you have to look at there to the Interstate Commerce Act.

If the Interstate Commerce Act in the regulation of motor carriers required motor carriers to provide restaurant service, then I think they would be performing a transportation function under the Interstate Commerce Act whether the -- they directed themselves a little bit through at least operation or otherwise, but if it is just a -- an operation which is not required and if the terminal building of the bus company wants to engage in some function outside if the field of interstate commerce then I don't think it's an interstate commerce's function.

Justice Charles E. Whittaker: Do you deny that it was within the power of the Commission by regulation to require the bus company to personally operate such a -- an eating facility at every terminal?

Mr. Walter E. Rogers: I don't know, Your Honor.

I am not aware of any provision in Motor Transportation Act.

Justice Charles E. Whittaker: No, I understand it's your argument but that has not been done.

I wondered if you care to comment on whether it could be.

Mr. Walter E. Rogers: Under the Act as written today as I -- I did not know of any -- any kind.

I do not deny that the Interstate Commerce Commission may have such regulatory power.

You conclude that the furnishing of meals in connection with bus transportation is essential just like in -- in connection with the Railroad Act where a person is on a train and he stays on the train all the way across the country.

They can be very much in order mandated with that provision of the Interstate Commerce Act, which would give the Commission power to pass a regulation stating that that is a part of the essential service which he may perform.

In some of provisions maybe in the Act regulating carriers by Motor, I'm not aware of it.

I don't -- it certainly wouldn't be beyond the -- it certainly would be improper for Congress to conclude that bus transportation travel should do it, and to give that power to the Commission.

And if the Commission has exercised that power, and the bus companies were required, then I think it's a service of -- they will have to perform even direct or through some agency where the lease operation all the while.

Justice Charles E. Whittaker: You used the word agency in the type that it would have to be the bus company's own facility.

Mr. Walter E. Rogers: Possibly so, but it's possible they could not delegate it to a non -- a non-carrier concern.

Justice Charles E. Whittaker: It's non-delegable.

Mr. Walter E. Rogers: Non-delegable function, but just as counsel for the petitioner suggested here, he says this restaurant could've done nothing but let this man sit for forty minutes until his bus left and he doesn't get up and leave.

He concedes here that there was certainly no obligation on this restaurant or the bus company or anybody else to provide him the food.

He is asserting in that connection that the State has interrupted his interstate commerce here by stepping into the picture but --

Justice Charles E. Whittaker: But that is true in every situation.

Mr. Walter E. Rogers: Where you threw a rock through a window.

Justice Charles E. Whittaker: At the time when every trespasser would leave --

Mr. Walter E. Rogers: Sir?

Justice Charles E. Whittaker: -- on break time when every trespasser would have to leave.

Mr. Walter E. Rogers: That's right.

And certainly if he threw a brick through the window, at the back that he might be arrested and put in jail over the weekend or for 10 years.

It wouldn't be a question of the State interrupting his interstate commerce journey he would've interrupted by his criminal act.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That is -- that is -- that of course is based on --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I think so.

I think there were actually separate roads there that doesn't (Inaudible)

Justice Potter Stewart: Get an example of page 21 of the records to the plain -- portion of the restaurant.

Mr. Walter E. Rogers: Yes.

Justice Potter Stewart: Which -- which would've defined the other on a good point.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Yes.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: I frankly don't remember Your Honor.

I have been in the -- I have been in the restaurant and I have seem to recall that there are separate -- there are separate counters, there are separate rooms but I'm not sure that you can't see over an open space either over the counter from one to the other.

It maybe that I have in mind the last petition, but I frankly don't --don't remember.

I have been there and it -- to the best of my recollection -- to the best of my recollection, there are two separate rooms and that's -- that's what I think of the -- but I make this comment in this record, there were few comments have been made a bit the Negro state of the record on the -- on the issue that was presented here as to the offense, the testimony that this was a privately operated restaurant.

The lease was introduced.

The directions to leave, his presence, his direction to leave and he refused to leave.

That constituted the case as far as the common law is concerned.

If any of these other factors that we have been struggling with here are important, I am certain that able counsel for the petitioner could have presented them and presented them to the court below.

Now, on that scope, certainly I'm not – criticizing, I think they have that position, he took his position that has in interstate carrier, he had a constitutional right to come into the white section and eat, and that was his point.

He made it in the restaurant at the time and that's all it was stood.

And that's why I say this question of -- of controlling anything, he says that's because it's in this building.

And because these buses come in here and I am being in the interstate commerce, I've got a right to eat without being required to go into this section or that section.

Now, if -- if he would have flashed ticket on a bus company to the restaurant across the street, insofar as he was concerned, the principle would be the same and that's -- that's why we're here in this state of the -- the record.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I would say if the bus company were operating this restaurant, the bus company line here, not a lessee of the bus company or not a lessee of the terminal company were operating these restaurants, they will not only own the transport here, but we will as a related function provide a place to eat.

We will not do in some bus companies do.

We will just let you off and give you time to seek your meal somewhere else as some, they didn't.

But we will -- we will provide it ourselves and if the bus company, the carrier that is operating is subject to regulation under the Act did that, then, I think it has to provide it without any discrimination in giving the service to its patrons.

And I think that if the bus company were operating this restaurant and the man came in to get a service which regards to whether the manager told him to get out, and he had a right under the Interstate Commerce Act to be there, then you couldn't bring in by your State statute, it wouldn't be trespass because he would be lawfully there.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Yes, I think we could.

I think the -- if it is not a service which is required in the interstate –-

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: If it is not a service which is required by the Act or by the commission passing an appropriate regulation, but the company of its own --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: It isn't required as far as interstate commerce is concerned.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: We have to have the responsibility there first.

It is not avoiding responsibility because the bus company may decide to erect an office building in the City of Richmond and have on the ground floor its terminal.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: I don't know if that is -- that would've been construed here to mean that a bus company has to go into the restaurant business.

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Not if it not be a transportation matter.

If it --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Rogers: Eating may be, but in many cases, a person will bring their buses to towns with no eating facility.

They stop because eating is necessary and they go across the street to Howard Johnson or to some other restaurant and eat a particular food and they get back on.

It's not essential as far as the way the buses operate, that is a distinction between --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, I would certainly think that if they didn't have to set up the terminal, they have terminal (Inaudible), some place that they don't have a terminal.

And they don't set it up and then suppose somebody comes along and said, let's do it anyway.

Let's do it anyway.

Let's set up the terminal anyway.

The terminal is built.

I'll set it up, or you the bus company set it up and lease it.

If it were not an essential closely related function to interstate commerce, then the action of that private concern would not be there I think with the carrier.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I would say it is -- it is related, yes, Your Honor it is.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, certainly on a long bus trip, you got to eat three times a day.

I think we would consider that and that you would -- during your passage you would certainly expect the bus company to at least stop, give you an opportunity to eat.

Then, the bus company may set up a restaurant to -- to feed and it -- it is in that sense closely related to demonstrate commerce, it maybe a function that they don't have to perform and I make that -- that is a distinction I am making.

It is -- if it is one that isn't required if they then, when they engaged in that part, then, the private operator can do as he pleases.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: If the bus company did it?

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes and it is -- I mean, I'm doubt about it if the bus company --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, I think it does.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I think of course he's got a matter of degree.

He said if he could come to a (Inaudible) where they're setting the -- they could say, provide this building, provide the stalls, provide all of the plates --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: And hire in the agents that you're running of.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I don't believe they went that far they could, no.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: You're obviously getting much closer.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: They may have Your Honor and other --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That of course --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, that's true.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, sir.

They do have certain elements of control as far as this equipment and as far as in some place it can be so.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That is certainly one of the view of it Your Honor.

It certainly is.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, he did.

Justice Potter Stewart: But your basic answer isn't -- isn't that Mr. Rogers that there is no evidence at all if the lessor was the bus company?

Mr. Walter E. Rogers: That's correct.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: That is not --

Mr. Walter E. Rogers: -- either from (Inaudible).

Justice Potter Stewart: Because that's your basic answer, didn't you?

Mr. Walter E. Rogers: If you assume that the bus company (Inaudible) one and the same, the bus company made this lease, instead of the terminal, then you have the question that you're speaking of here.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: No, no power it has once it gets a record had been made up.

And it comes to it on evidence that's been heard by the trial court and it passes on that evidence as a reviewing court.

Then if the man didn't kill the individual involved, it's discovered later it did -- his remedy is independent so far as I am aware one of the executive premises not of judicial review at the appellate level.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: No, I have not said that.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I know of no trial as in the Court has.

In fact, I'm satisfied it does not (Inaudible)

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That's true.

They -- the access of reviewing Court to consider the record as it comes to that.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: No, on that -- that's right.

The question has been presented at all.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: The one year (Inaudible) that I can mention to the Court is the case of (Inaudible) I believe against somebody.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: There would be brought because I think the -- there maybe other section dealing with the criminal appeals so that is the title of --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I beg your pardon, sir.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: If I --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Both provisions, yes, the same type of thing that was involved in the Maine case where the question of possible consideration of other elements and the court held that it had no power to remand the case at that stage of the proceeding for the taking of additional evidence.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: If they have the evidence in the record before them, yes, but if it is not -- if it's not on that it's presented, it holds the record.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Well, of course, we have the rule in Virginia of after discovery and evidence that this governed by time limitations and things of that sort but it would not be available after the case has got to the -- got to the appellate level.

And the rules relating to that must be evidence it wasn't available at the time.

And in no way of anybody presenting it at that time, a person can make certain motions in the trial court, the trier of facts can order a new trial on the grounds of after the discover and evidence following the crowd before that Court loses jurisdiction of the case.

But --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That is it.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: That can be presented to the Supreme Court or remand.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: There are provisions for applying the writ of coram nobis in Virginia and --

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: I think there are some situations in which under certain rules, that procedure is available.

Frankly, I'm not first on that point right here now but I -- I do know of the procedure and I do know that in some case, it has been used and I think it is in some situation have been applied in the case of after discovered evidence.

So just put the second part that I'm unable to advise the Court at this time.

Unknown Speaker: (Inaudible)

Mr. Walter E. Rogers: Yes, I do have, Your Honor.

In fact, there are number of restaurants in Virginia that have desegregated their facilities in a matter of recent months.

And in fact, this particular restaurant is one that has -- that goes of course to the question of the Virginia statute that is involved here being -- it is not a segregation statute at all.

There is no compulsion on the part of the State.

There is no effort being made in Virginia and introduced places who have voluntarily chosen the course of desegregation to make them change their policies and the police don't come in and try to seize if any action is enforced.

It's a matter that is left on this score to the individual action by -- and that he says I will serve both for these to do so.

Justice Potter Stewart: What is that?

Mr. Walter E. Rogers: Be in the policy of separation and during at that way, then if he enforces that, then, in those cases, by doing the crime in which the statute is both but not as a matter of State policy.

That is true, Your Honor.

I see my time is up.

I haven't touched on all phases of this review with the matters that are covered by the brief.

I think that the counsel for the opposition of -- I give too much consideration in the Fourteenth Amendment question but we think it's controlled by the reason on this lower court level in Maryland decision.

And if that very issue was involved and by this action in Paul against Virginia involving this very statute that was considered by the Court there and its rulings of -- on that in refusing to consider the case.

I want to call your attention to one typographical error on page 16 of our brief.

At the end of the fourth line the word "eventuary" should be "evidentiary," evidence.

Justice Potter Stewart: What page?

Mr. Walter E. Rogers: 16, the fourth line, the last word.

That should be evidentiary, not eventuary.

Rebuttal of Thurgood Marshall

Mr. Thurgood Marshall: Mr. Chief Justice, may it please the Court.

I'd like to start with few moments I have with the answer to Mr. Justice Brennan's question.

I think it should also be added that although this public statement has been made and indeed in facts, Negroes are being served in the bus terminal involved in this, the signs are still up and I submit now, we really got a situation.

Boynton has not only got to find out who owns that terminal, he's going to have to find out just what is the whim of the manager on the day he gets there.

Because as it appears with the sign still up, and he was served and I assume that they would serve today and tomorrow they should be back.

And I think that's the other point that I've been trying to get clear about this different system as it moves along which is the opposite of what the Congress intends in its commerce power that it be uniform throughout.

On the question as to these rooms in the restaurant itself, I find out from associate who have tried this case that the two -- it's -- it's a long one wall and there is a wall between the white section and the colored section.

There is a wall there with doors coming out.

And it -- it's not a temporary wall or what have you, but for all intents and purposes it's the same restaurant but for the wall and here, we have the same situation of making somebody move from one to the other.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: I would say this so that insofar as the trial in the lower court, I guess it was pretty fast.

I think it normally the -- when it is tried again that -- I mean, this is the only record we have actually is the magistrate court.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: The question that Mr. Justice Stewart asked by the trial de novo.

It was a trial de novo but the practice appears to be in this record and indeed it was done is you put in the transcript in the magistrate's court.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Well, I think that we -- we would've had a better case but this is by agreement as I understand which is that it's the normal procedure.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: My argument say is -- is that I agree fully with that but I still say we have enough in this record to come under the Morgan case.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Oh, yes, sir.

I -- under the Morgan case, I think that it's perfectly clear that -- and from the argument that's been made here by Mr. Rogers that there is no question that the bus company put Boynton in this bus terminal.

They pulled up, they'd let him off in the bus terminal and that whether it's owned or operated by whomsoever, it pleases, it is an essential part.

The only thing in the bus terminal are the ticket counters, restrooms, a waiting room, and the lunch counter, I mean the restaurant and certainly, that restaurant is just a significant part of that is that, if they have separate counters to buy tickets or separate restrooms, he wouldn't have any trouble.

I think you had also -- while we're on this lease.

We're trying to figure out what paragraph 24 on page 16 says because it requires them, the restaurant to administer -- to run this building according to the rules and regulations of any governmental agency having jurisdiction thereof, then it says that having down below, the lessor should apply with the ordinance of the City of Richmond and the laws of the United States in the State of Virginia.

And I would submit that I think I know what they were driving at that this was to be a terminal restaurant as represented up in the beginning where they're required to run the terminal facilities.

Justice Charles E. Whittaker: I wonder if you have a (Inaudible) a long-term lease that didn't have that (Inaudible)

Mr. Thurgood Marshall: Yes, sir.

Justice Charles E. Whittaker: You have?

Mr. Thurgood Marshall: Yes, sir.

In Texas.

Justice Charles E. Whittaker: But isn't to come everyday (Inaudible) long-term lease.

Mr. Thurgood Marshall: I would think so.

Justice Charles E. Whittaker: To the power of all the ordinances of this facility in laws of the State?

Mr. Thurgood Marshall: And the United States --

Justice Charles E. Whittaker: And United States.

Mr. Thurgood Marshall: And the regulations of agencies, yes, sir.

I've seen through the record.

And I submit I've never seen -- I frankly, the one type of lease I have never seen is one which says that you must run a bus terminal.

No, I've never seen one of -- this is the first one on the bus terminal.

And I was reading in relation to that state.

That was the section I was reading in the legislature because I -- I think Mr. Justice Whittaker, in complete honesty that this is obviously a lease that has a combination.

It looks to me like the lease that the -- the regular sections would be for the restaurant as mentioned by Mr. Rogers across the street.

But the fact that those of us know when we run across leases that that time on provision is entirely different.

You don't have that in a normal lease.

You would have for example in the -- the lease in the gas company that you would run it to serve our employees, etcetera, etcetera or in the shopping center would be like a shopping center.

And the reason I make that this goes obvious this was not to be as Mr. Rogers have you to believe, a -- a restaurant like the one across the street.

That was the -- my whole point on the brief.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: I --

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: No sir.

I haven't abandoned it.

I say that this Court can what the -- I admit Mr. Rogers is right.

On our way up, we lift it up because technically, we knew it was not then in the record, but this Court has for the information and the States have -- they couldn't give it and then, the Federal Government gave it and I think if this Court wants to, this Court can consider it as a part of the whole commerce argument.

But I would rather put my basic weight on the Morgan case because I think the Morgan case is sufficient and the Morgan case was on the general commerce power rather than the Motor Carrier Act.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: You had a statute that said --

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: It mentioned white and colored passengers they didn't have -- it didn't have.

And this statute, if this statute it said that any Negro who remains on property have to be told to move would be guilty of a crime, would be automatically unconstitutional.

This statute as the Morgan Statute --

Justice Felix Frankfurter: (Inaudible)

Mr. Thurgood Marshall: Then we -- except for the --

Justice Felix Frankfurter: (Inaudible)

Mr. Thurgood Marshall: That -- that's what I was --

Justice Felix Frankfurter: (Inaudible)

Mr. Thurgood Marshall: That's what I was getting to Mr. Justice Frankfurter was that when the private individual decide that he is going to use race, then State cannot come in and become a party too.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: No, sir.

We did not raise it in the petition.

The last place it was raised was in the Hustings Court.

Bear in mind that we didn't have to be -- not have an argument in the Supreme Court of Appeals, they denied our petition for writ of error.

Justice Potter Stewart: Because when -- but you didn't -- in your petition for writ of error, you didn't rely on (Inaudible)

Mr. Thurgood Marshall: The petition for writ of error, the petition itself is -- in Virginia, it's like a brief and it did have everything in it.

It have the Act, the Clause, it has everything in it.

Because that's not a part of the record, it never is.

Justice Potter Stewart: (Inaudible)

Mr. Thurgood Marshall: Yes, sir.

Because they printed -- the assignments of error, Mr. Justice Stewart is in here.

And I think that the -- the Virginia rule is that your basis of appeal is limited to the assignments of error which is in the record.

But the question you're asking in our petition didn't we go further, we did -- we covered all of these but that's not a part of the record which you --

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: It was before the Supreme Court --

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: We raised it in the petition.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Yes, sir.

And that was there and they refused to give us the -- the writ of error.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: The petition here -- yes, sir.

We did not mentioned as I remember it didn't used the Motor Carrier Act Clause at all.

Unknown Speaker: (Inaudible)

Mr. Thurgood Marshall: Thank you, sir.

Unknown Speaker: (Inaudible)