AVENT v. NORTH CAROLINA

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Argument of Jack Greenberg

Chief Justice Earl Warren: From the calendar, John Thomas Avent, et al., Petitioners, versus North Carolina.

Mr. Greenberg.

Mr. Jack Greenberg: May it please the Court.

This case is here on writ of certiorari to the Supreme Court of North Carolina and presents principally a well-defined and circumscribed issue and that is whether in the particular legal and factual context of these sit-in demonstrations the arrest, conviction and sentence to prison of students, or the petitioners here, denied to them equal protection of the law secured by the Fourteenth Amendment and whether these judgments of conviction should be reversed.

At the outset, before stating the facts and elaborating their legal argument, petitioners would like briefly to outline the principle elements of this case which as we stated circumscribe and define the issues here and those elements are that in this case we have first of all state action in the form of an arrest, trial, conviction and unless these convictions are reversed an actual sentence to prison.

Justice John M. Harlan: What was the sentence?

Mr. Jack Greenberg: Three of the petitioners got 30 days, two of them got 20 days and one of them received 15 days.

And two of them, the young ladies involved, the prayer for judgment was suspended.

Secondly, this state action enforced racial discrimination.

Thirdly, in this case, there has been conceded by the State to exist in North Carolina a statewide custom of racial segregation and we submit this custom has been fostered and infused by a complex network of state segregation laws, including an ordinance of the City of Durham requiring racial segregation in restaurant facilities.

Justice Arthur J. Goldberg: Mr. Greenberg, was that ordinance ever mentioned in the trial below?

Mr. Jack Greenberg: No, it was not, Your Honor and we plan to discuss some of the problems and issues that that may present.

Fourth, the State trial conviction and so forth that I've mentioned protected and asserted property right of Kress' Dime Store.

And this so-called property right upon analysis turns out only to be an asserted right to exclude Negroes and their white companions from a single unseverable portion of an establishment open to the general public in which these very petitioners were welcome to trade except at that particular counter while being seated.

Fifth, the premises in question were extensively licensed and regulated by the State with respect to its service of the public.

And finally, the State of North Carolina contrary to the assumptions made by this Court in the Civil Rights cases does not protect persons against racial discrimination in the premises in question.

Petitioners submit that these very well defined considerations typical to a very substantial extent of almost all of the sit-in cases to find the issues presented to this Court in a way which makes unnecessary for a decision any of the great variety of hypothetical cases imagined by legal writers and opposing counsel.

This case therefore does not involve state enforced racial segregation in private homes or country clubs.

It doesn't involve discrimination against persons because they may be redheads or personally disliked, personal enemies nor does it involve the extent to which the Fourteenth Amendment applies to the law of trusts in the States and so forth and so on.

Such hypothetical cases would call into play countervailing constitutional consideration such as rights of privacy and so forth none of which are involved in the case now at bar.

This case involves only the combination of the legal and factual circumstances of this type of sit-in which I said is typical of virtually all the sit-in cases not only here but throughout the country.

This connection --

Justice John M. Harlan: How many?

How many sit-in cases did you happen to know?

How many sit-in cases?

Mr. Jack Greenberg: I was --

Justice John M. Harlan: [Inaudible]

Mr. Jack Greenberg: There are I think 15 or 16 cases in this Court at this time and I was about to say I particularly checked North Carolina because I thought the question might arise.

There are approximately 162 cases pending in North Carolina in seven different jurisdictions in various stages of trial and appeal, all of which have been stayed by stipulation awaiting the outcome of this case.

And similar stipulations, though I don't have a count, have been made in other jurisdictions, other states awaiting the outcome of these cases.

But in North Carolina I've asked counsel in that State to check and there are 1 -- at least 162 cases in seven different jurisdictions.

Now that --

Justice Potter Stewart: There's a hundred -- 162 convictions?

Mr. Jack Greenberg: Some of them are convictions, some of them are stayed, even pending trials, some of them are in various stages of appeal, and so forth.

I didn't feel it would be useful to classify them --

Justice Potter Stewart: 162 separate prosecutions?

Mr. Jack Greenberg: Yes.

I do have that information if you want them.

I have it checked.

Justice William J. Brennan: Now, wouldn't you say [Inaudible] restrictions, do you mean communities?

Mr. Jack Greenberg: Counties and cities, yes.

The facts of the case can be stated briefly.

In May 6, 19 --

Justice Arthur J. Goldberg: Mr. Greenberg, do they have all ordinances involved, do you know?

Mr. Jack Greenberg: No, they did not.

For example in Rowley there was no ordinance.

In Monroe there is no ordinance.

In Charlotte, I don't believe there was an ordinance.

In fact I think Durham is perhaps the only city in North Carolina that has one, but I could get that precise information too.

I know there are at least a good number that do not have ones.

Justice John M. Harlan: Could I ask you -- I don't want to interrupt you.

How long is this Durham ordinance been in the statute?

Mr. Jack Greenberg: Since 1940 so far I am able to tell.

Justice John M. Harlan: It was [Inaudible]?

Mr. Jack Greenberg: Yes.

On May 6, 1960, the petitioners who are five Negro students from North Carolina College and two white students from Duke University bought some small stationery items at the counter at the first floor of Kress' in Durham.

Kress' as I stated earlier serves Negroes and whites without discrimination throughout its various 50 counters in the store except at a seated service lunch counter.

There is a stand up lunch counter at which Negroes and whites are served without racial discrimination.

There's no racial sign at the entrance of the store nor are there any racial signs in the store indicating this segregation.

There was a sign stating however invited guests and employees only.

Justice John M. Harlan: Could the Durham ordinance before to make the so-called integrated lunch counter illegal?

Mr. Jack Greenberg: I would think so Your Honor.

In discussing the application of the ordinance to this case, I plan to discuss that because our point is the ordinance in this case is not involved in the technical orthodox legal way that an ordinance might be involved in such a case, but more as an expression of community policy as it affected the situation because in fact the manager was not and no one has ever enforced the ordinance at that stand-up lunch counter.

And the manager himself testified that it was the custom of the community he was following and unlike in the Peterson case in South Carolina where both the manager and police stated they were relying on the ordinance and the Gober case out of Birmingham where there was an effort to develop the significance of the ordinance.

In the Durham case, neither the State nor the petitioners view the case as involving the ordinance in the normal -- in its normal legal application because the manager in fact was not obeying it at stand-up counters.

So we feel the ordinance plays a different kind of role in this case than it does in the others.

There was a sign at the lunch counter staying invited guests and employees only but no invitations were sent out as the manager states.

He just said that white persons automatically were considered guests and Negroes were not and Negroes and their white friends were not.

Racial discrimination was the custom of the community in North Carolina and that's why the manager said that he was segregating.

On page 22 of the record, he said that, “It is the policy of our store to wait on customers dependent upon the customs of the community.”

And lower down on that page, it said, “even if Negroes accompanied by white people were orderly at our luncheonette because of the policy of the community, we would not serve them,” and that was our policy prior to May 6 in various other places in the record, page 23 and 44, he said the same thing.

The Negro students who ordered were not served.

One of their white companions, a girl purchased some food and handed it to a Negro companion and she was asked to leave also.

They were all asked to leave.

While they remain seated, the police arrived.

It's not clear who called them, asked the petitioners to leave.

When they did not, they were arrested for trespass.

The petitioners for a long time have been customers of the store.

They were at this time sitting in as part of an informal student organization to protest segregation.

They did not desire to be arrested.

They did not expect to be arrested.

They were hopeful that the policy of the store would change.

They were indicted under a North Carolina statute which appears on page 2 of our brief which states, “Trespass on land after being forbidden.”

If any person after being forbidden to do so shall go -- enter upon the lands of another without a license therefore, he shall be guilty of a misdemeanor and so forth and we plan -- we have argued in our brief and if there's time plan to argue orally that this statute could not possibly get any notice that what these people had done was a crime.

They were sentenced as I said earlier three of the young men got 30 days in prison at labor, one got 20 days at labor, one got 15 and the two young ladies had prayer for judgment suspended.

Justice Arthur J. Goldberg: Well, didn't they know, Mr. Greenberg that Negroes were not served in these luncheon counters before this entry?

Wasn't the purpose of the test to challenge the policy that had existed?

Mr. Jack Greenberg: Yes, it was.

Yes, it was.

They knew Negroes were not served.

They were hopeful that as had occurred in other communities that their sitting there would induce the propriety to serve them as indeed ultimately it has subsequent to these convictions.

I think the record is quite clear on that.

Justice John M. Harlan: You said that the record is not clear unless I misunderstood you as to who called the police.

Mr. Jack Greenberg: Well the manager said --

Justice John M. Harlan: The manager said that he called them.

Mr. Jack Greenberg: Well I -- I'm --

Justice John M. Harlan: Page 21.

Mr. Jack Greenberg: I may be in error.

Justice John M. Harlan: They refused to leave, that is according to petitioner until they were served --

Mr. Jack Greenberg: I fall -- that's correct.

Well, yes, except --

Justice John M. Harlan: [Inaudible]

Mr. Jack Greenberg: That's correct.

On 23, he said I did not seek police protection and I may have that confused but I -- we don't rely on the fact that -- as to who called the police or deny them.

Yes, he did say, you're correct.

Yes, I was looking at page 23.

In addition to the -- we -- this case as I stated involves three issues; one, the petitioners denied equal protection of the laws, did the statute give adequate notice that this conduct was crime and were petitioners denied free speech secured by the Fourteenth Amendment.

First argument, the equal protection argument is that under the well circumscribed issues presented by the facts of this case, the criminal conviction should be reversed as denying equal protection of the law secured by the Fourteenth Amendment.

In Shelley against Kraemer, Barrows against Jackson, and Girard College case all make clear that State enforcement of racial discrimination even when initiated by private persons denies equal protection of the laws.

Indeed this case, we submit is stronger than Shelley against Kraemer because in Shelley, all the State did was hold its courts open to suitors to come in and enforce private agreements and here the State has taken an active initiative in prosecuting sentencing for jail and in fact the state prison system will be employed here unless these convictions are reversed.

Justice Potter Stewart: I am -- I want to be sure I understand the facts, specific facts.

It's true, is it not, that the manager, the record shows that the manager called the police?

Mr. Jack Greenberg: Yes.

Justice Potter Stewart: And then after the police arrived and in the presence of the police, the manager unambiguously told these people to leave.

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: And then it was the police, was it not, (Voice Overlap) --

Mr. Jack Greenberg: Then the police told them --

Justice Potter Stewart: -- without a warrant and -- who arrested them.

Mr. Jack Greenberg: Then the police officer also told them to leave in the presence of the manager and when they did not leave, they were arrested.

I think the actual warrant, the writing of the warrant was taken care of later.

Justice Potter Stewart: By the police and not by the manager?

Mr. Jack Greenberg: Yes.

I don't believe that the manager signed the warrant.

I don't believe so and I may be in error and that I will check that but I (Voice Overlap) --

Justice Potter Stewart: I think you are right --

Mr. Jack Greenberg: The manager signed the warrant.

Pardon?

Unknown Speaker: The warrant is not in the record.

Mr. Jack Greenberg: Mr. Moody said that the warrant is not in the record but I --

Justice Potter Stewart: Alright.

Mr. Jack Greenberg: -- will tell you (Inaudible).

Justice Potter Stewart: And -- you told us you are going to get to it, but as of now, we can assume that there was no reference in the ren -- during the trial or at any time to this municipal ordinance of Durham?

Mr. Jack Greenberg: There was none.

Justice Potter Stewart: And the State Supreme Court stated that there was no law requiring segregation in restaurants, did it not, in its opinion?

Mr. Jack Greenberg: The Supreme Court language on that is -- no statute of North Carolina required the exclusion of Negroes and the white people who are in company with Negroes in restaurants.

And no statute in this State forbids discrimination by the owner of the restaurant of people on account of race or color or of white people in company with Negroes.

That's on page 78 of the record.

Justice Potter Stewart: Yes, in the record.

Alright, thank you, I just wanted the --

Justice John M. Harlan: Does that indicate that the statute [Inaudible] sometimes in state courts?

Mr. Jack Greenberg: Well --

Justice John M. Harlan: [Inaudible]

Mr. Jack Greenberg: I think that the role of the ordinance in this case is as an expression of community custom because in fact he was not obeying it at the stand-up lunch counter that it's just merely one part of a larger mosaic of North Carolina laws as in Louisiana.

This case -- this Court has the same issue in Louisiana where there is no ordinance and it has two cases, one from South Carolina and one from Alabama where there is an ordinance.

Justice John M. Harlan: In other words, you don't place any specific reliance on the statute as such except as a part of this larger [Inaudible] --

Mr. Jack Greenberg: That's correct.

Justice John M. Harlan: Is that it?

Mr. Jack Greenberg: Yes, that's correct.

That's (Voice Overlap) --

Chief Justice Earl Warren: Was the ordinance ever declared unconstitutional?

Mr. Jack Greenberg: No, the ordinance was not in issue.

It was not presented by either the State or the petitioners in any of the courts below and the ordinance never has been declared unconstitutional.

My understanding is there is some talk possibly about repealing it down there but that has not been done.

Chief Justice Earl Warren: Does the Supreme Court of North Carolina take judicial notice of ordinances of the State?

Mr. Jack Greenberg: No, it does not.

No, it does not take judicial notice of city ordinances and it has so held in State v. Claiborne which is the case we cite in our brief when we refer to the ordinance.

Justice William J. Brennan: But in any event [Inaudible]

Mr. Jack Greenberg: That's correct, that's correct.

Law Review of the case however is that in view of the Rowley ordinance placed in the case, in view of the fact that this Court faces virtually identical issue in the Lombard case from New Orleans where there is no ordinance that that is not very material in view of the issues now presented.

It is not related to any questions of avoidance of constitutional issues as the Solicitor has suggested in the footnote in his brief.

Justice John M. Harlan: Mr. Greenberg, do I understand it correctly that right now the services being made to everybody at the sit down counter and the ordinance is not being enforced?

Mr. Jack Greenberg: That's correct.

I've been in that store myself and I've seen it myself, that's correct.

Our case is now however that although Shelley and Barrows v. Jackson and Girard College case all indicate that racial segregation even when initiated by a private person, if enforced by the State violates the Equal Protection Clause.

This case doesn't even present for a decision of that issue because here there is much more.

We have for example the fact that this proprietor acted in furtherance of a community custom and that this custom was generated in part, largest part by state law.

In fact, the North Carolina State Advisory Commission to the United States Commission on Civil Rights which consists of a distinguished group of North Carolinians has made a study of the racial segregation laws and ordinances of the State of North Carolina and the study is cited in our brief.

Justice William J. Brennan: Mr. Greenberg, may I ask, I'm still not quite clear.

Do you want us to give some significance to the ordinance or not?

Mr. Jack Greenberg: We feel this ordinance should be given as much significance as let us say an authoritative work on history which this Court might take a look at and say this indicates what the general situation, general custom, general state pattern in the State of North Carolina.

Justice William J. Brennan: Alright, you don't make any reference to the ordinance at all in your brief, do you, in the collection of other things?

Mr. Jack Greenberg: Yes, we do Your Honor.

Justice William J. Brennan: You do?

Mr. Jack Greenberg: Yes.

Yes, in fact we -- on page 21 at the bottom of the page, it is mentioned, cited and the North --

Justice William J. Brennan: Oh yes.

Mr. Jack Greenberg: Yes.

Justice William J. Brennan: I see.

Well, is this then I gather just one of the many things to which you direct our attention which likewise were (Voice Overlap) --

Mr. Jack Greenberg: That's correct.

Justice William J. Brennan: -- referred to in the record below or in any of the proceedings in the state courts which you ask us take them as part of the pattern of --

Mr. Jack Greenberg: That's correct.

Justice William J. Brennan: -- things as they are in North Carolina?

Mr. Jack Greenberg: That's correct.

We have argued that North Carolina, that the custom of racial discrimination is widespread.

We have an elaborate argument to that effect and the State comes back in its brief and says, “They don't see why we say that.

We're laboring the obvious” and I think perhaps we're laboring the obvious.

But a distinguished body of North Carolinians and North Carolina State Advisory Committee and the United States Commission on Civil Rights has concluded that these state laws caused private individuals to discriminate and segregate on the basis of race and otherwise they might not.

We got that cited in our brief too.

Now, North Carolina as in Louisiana and in other southern states, Negroes are segregated from birth to the grave.

There's an outgrowth of the state public policy set forth in the statutes.

When born, they are born in a segregated hospital.

Their race is recorded on a birth certificate.

When they go to school, despite the repeal of a North Carolina school segregation provisions and the decisions of this Court, they are assigned pursuant to the North Carolina people assignment laws to segregated laws and the United States Commission on Civil Rights has found as we cite in our briefs that under that people assignment law, not a single white child was assigned other than to a white school and a single Negro child into a Negro school as on -- upon that publication since and there have been a few.

But I believe it's correct to say that there are fewer Negroes in white schools in the entire State of North Carolina certainly not many more than in the City of New Orleans.

The state public policy is so well entrenched, the state law is not necessary.

Every school board knows to do it and does it on its own and only after extensive litigation is this pattern will breach the door.

Justice John M. Harlan: Supposing this case has arisen in New York City, you'd be arguing that there was an unconstitutional determination?

Mr. Jack Greenberg: Well, I would first respectfully submit that that would be hypothetical, hypothetical and distinguish New York.

New York like -- I think every other northern state has State Civil Rights statute covering this and so I just don't think the case would arise in that one.

Justice John M. Harlan: Well, I thought that that is a federal constitutional matter.

Mr. Jack Greenberg: Well, I think that the arrest and the conviction would be enough but we don't have to reach that.

I think the Court might decide that it is relevant to make constitutional distinctions between states which -- whose public policy support segregation and states who do not and I don't think that would be a paradox.

Justice John M. Harlan: You're not arguing in other words that there's no state action required in this case?

Mr. Jack Greenberg: Oh there is -- I -- this case rest --

Justice John M. Harlan: Your argument doesn't rest on that?

Mr. Jack Greenberg: No, it rests on state action and I think this is we're infused with state action the arrest, the convictions, to the jail sentence, to the custom that's infused with state law.

This is not a custom in the abstract.

There's a tightly knit network of state law supporting it.

By licensing, we've got -- this is state action from beginning to end.

We --

Justice William O. Douglas: Oh, I suppose when a judge sends a person to jail that's state action.

Mr. Jack Greenberg: Certainly, that's state action.

And -- but that -- even that narrow question is not presented here that we have a question of whether state action in this context of a state custom of racial desegregation --

Justice William J. Brennan: This was only in the context.

You're not asking us -- not arguing are you, that the mere fact that there was an arrest and conviction?

Mr. Jack Greenberg: No I am not arguing that because this case does not involve that alone.

It involved -- it involves much more.

Negro --

Chief Justice Earl Warren: Would you say that the hospital was segregated, is that by law?

Mr. Jack Greenberg: That their states -- some state mental hospitals and some special hospitals are segregated by state statute.

Elsewhere in the state, hos -- municipal hospitals, hospitals owned by authorities, hospitals which receive money under the Federal Hill-Burton Act are, I would say, almost entirely segregated, but one or two exceptions.

And why it -- well, it may not be by state law, it is state action in the sense that these are government officers and government money and government institutions.

Chief Justice Earl Warren: But there's no specific state law, (Voice Overlap) --

Mr. Jack Greenberg: There is for specific classes of hospitals, mental hospitals, I think, institutions for the blind and deaf, tubercular homes.

Chief Justice Earl Warren: You spoke about maternity hospitals, are they, --

Mr. Jack Greenberg: No --

Chief Justice Earl Warren: -- do they require that?

Mr. Jack Greenberg: There's no state statute requiring that but again the United States Commission on Civil Rights had a study of hospitals in North Carolina and anyone familiar with the situation of the general pattern is not only segregation as to patients but as to physicians and their opportunities to practice in the hospitals pending litigation involving that now.

Unknown Speaker: Do you [Inaudible] --

Chief Justice Earl Warren: Municipal hospitals.

Mr. Jack Greenberg: Municipal authority hospitals, yes.

Chief Justice Earl Warren: Yes.

Mr. Jack Greenberg: Yes.

Justice Arthur J. Goldberg: Can I ask you just in reference to Justice Harlan's questions.

Is your position that the arrest [Inaudible] is in of itself sufficient state action [Inaudible]?

Mr. Jack Greenberg: Our position is the latter because we feel that's all that's presented here at this time.

In addition, there is even more state action involved.

There's the expense of licensing of these premises.

We don't have to consider whether anyone or two of these things lead to the result though you have all five or six put together and hoping it's locked up that way, I think that there can be no other result.

Justice Arthur J. Goldberg: The totality.

Mr. Jack Greenberg: The totality, yes and it's not a -- just kind of an ad hoc totality, it is a totality with a rationale.

It's a totality that one often -- that one finds as typical of all of these sit-in cases were faced with.

Justice Potter Stewart: So, certainly so far as your present argument goes as I understand it, you could not make that, this same argument of the -- if this -- if these people had been ejected and arrested under a trespass statute of say Montana or Minnesota or Wyoming.

Mr. Jack Greenberg: No.

I would -- we're not faced with that and you could not make that statement (Voice Overlap) --

Justice Potter Stewart: Well, I just want to make sure I understand your argument.

Mr. Jack Greenberg: Yes, I would just first say that this wouldn't happen in Montana or if it did it would be taken care of by state law.

Justice Potter Stewart: It's conceivable that --

Mr. Jack Greenberg: Yes.

Justice Potter Stewart: -- in Montana some private restaurateur would not want to serve colored people.

Mr. Jack Greenberg: That's correct, yes.

Justice Potter Stewart: And that it's conceivable that Montana like North Carolina has a trespass statute.

Mr. Jack Greenberg: Yes, sir.

Justice Potter Stewart: But you would not be able to make your present argument in that State, would you?

Mr. Jack Greenberg: No it would not be the present, assuming the state law were not enforced in this situation.

You would not be able to make the present argument and I don't think that's a paradox.

I think it -- so, you can make a valid constitutional distinction (Voice Overlap) --

Justice Potter Stewart: I'm not suggesting it's a paradox.

I'm just trying to understand your argument.

Mr. Jack Greenberg: Yes.

That is my argument, yes sir.

Again, going through the entire pattern of segregation that there is in North Carolina where Negroes go to work in plants, factories.

These are segregated by late -- by race and in some respects, that's required by state and municipal law.

And they pay taxes, the tax rules are segregated.

When they marry by constitution, they may marry only members of their own race and race is recorded on the marriage certificate.

Should they attempt to serve their country in the National Guard, they must be segregated.

And indeed there is a specific statute that a Negro may never command a white man.

And if anything, this really indicates the subordinate role which the state law has intend -- intensely placed Negroes in.

Should they unfortunately enough to go to a mental institution, orphanage, school for the blind and deaf, training school or prison, it must be segregated.

Justice Potter Stewart: That's true on almost every state, isn't it, insofar as prisoners go?

Mr. Jack Greenberg: I don't believe that's true, no Your Honor.

I don't believe that's true.

Justice Potter Stewart: [Inaudible]

Mr. Jack Greenberg: At least (Voice Overlap) --

Justice Potter Stewart: -- in California I think.

Mr. Jack Greenberg: Well, when I had occasioned to check a number of years ago, I was told that's not true.

There are some arguments as to whether or not there's voluntary self-segregation and so forth.

I don't know.

Chief Justice Earl Warren: No, there's no law of segregation (Voice Overlap) --

Justice Potter Stewart: I'm mistaken, I am mistaken [Inaudible] [Laughter]

Mr. Jack Greenberg: Should a Negro fall into difficulty with the law as these petitioners did, the indictments, as the indictments in this case note their race.

Should they purchase insurance to a fraternal benefit society that must be a racially segregated one by state law.

And when they die the cemeteries in which they are buried are segregated and one of the reasons I went through this is to show this is precisely the situation that we have in New Orleans and Louisiana.

Perhaps it's a little worse down there in terms of state law but at the same order of magnitude where there is no ordinance and so this ordinance is merely a part of the entire picture.

Chief Justice Earl Warren: Mr. Goldberg, you mentioned a moment ago that there was a law in North Carolina to the effect that no Negro could give an order to a white man.

Mr. Jack Greenberg: In the National Guard.

Chief Justice Earl Warren: Oh!

Just in the National Guard.

Mr. Jack Greenberg: Yes.

Yes, in the National -- may not command, yes.

Chief Justice Earl Warren: I see.

Mr. Jack Greenberg: Moreover, as I pointed out in answer to questions earlier, this is not a private home or a private institution.

It's extensively licensed and regulated by the state and by the municipality and all these licensing regulations statutes as set forth in our brief.

And among other things, the licensing form requires a grading according to the quality of establishment which must take into account racial segregation in toilet facilities in all these various licenses.

Justice Hugo L. Black: Suppose the state would abolish all these licensing laws and collect its taxes by another method, would that change your argument?

Mr. Jack Greenberg: No, that would not change my argument, but this again is part of this totality.

If all that it were licensing, of course it would change the argument but I think you consider the licensing in conjunction with everything else.

Justice Hugo L. Black: To determine whether the merchant can choose his customers.

Mr. Jack Greenberg: I think it is one of the factors to be taken into account along with the others that I've mentioned as to whether these convictions should to be reversed.

Justice Hugo L. Black: You basically get back, do you not, always to the question whether the owner of the store can choose his customers?

Mr. Jack Greenberg: That of course is involved, yes.

And if he can choose them, can he choose on the basis of race and then can he require the State to enforce this by arrest.

Justice Hugo L. Black: And you detract from his right because the State has passed laws which he may or may not be in favor of with reference to segregation in other fields.

Mr. Jack Greenberg: Well, I think that helps determine what his right is to the extent that it can be enforced by the police.

If there were but one or two segregation laws in the State, I mean it is a spectrum in a sliding scale, but when you reach a State which segregates from the cradle to the grave by state statute, constitution, and municipal ordinance, and you have all these other factors involved, I think that is a totality of state action as in another sense it was set forth in the Burton case, the Wilmington Parking Authority case.

Justice Hugo L. Black: Is it your position that assuming that an owner does have a legal right to control who would come into his place and a merchant has a right to chose who would come into his place, that we can't -- that the State is powerless to do anything to insist him in enforcing his legal right?

Mr. Jack Greenberg: Well, I think first of all, this case -- in this case he invited the petitioners into his place.

I don't think this is a case which involves people --

Justice Hugo L. Black: Well, you have a case where the owner wants them there, that's quite a different thing.

I understood you were arguing a different case.

I understood you are arguing on the assumption that the owner did not want those certain customers there.

Mr. Jack Greenberg: Well no.

He invited them into --

Justice Hugo L. Black: And arguing further that the State is without power to protect his right if he has one to choose his customers.

That's the reason I asked you, if you don't always get back.

I'm not sure what the answer is.

Do you not always get back to the kind of question, does a store owner has a right to choose his customers on the basis of color?

Mr. Jack Greenberg: Well, I think that if I may respectfully say so places makes the question too broad and I want -- didn't want to just at this point get to a question of what is the property right involved here because I think that's important.

Justice Tom C. Clark: Well, before you go into that, I wonder if -- I thought your position was that his choice was not the personal choice of the manager and it was based entirely upon the community standards.

Mr. Jack Greenberg: That's correct.

Justice Tom C. Clark: And therefore, the rule as a precedent wouldn't be applicable, is that your position?

Mr. Jack Greenberg: That certainly is our position.

That is another part.

This was the -- this was the choice.

This is a manager of the corporate dime store, it wasn't his choice or it wasn't the choice of the national management.

In fact, if you read all these records and in the other cases pending here, it is uniform throughout and every manager says and apparently instructions were sent out to them, we follow the custom of the community.

Justice William J. Brennan: [Inaudible] prevents any actual voluntary decision on the part of --

Mr. Jack Greenberg: There was no -- certainly there was no -- getting a [Inaudible] questions of free will.

There was no real free will here because this was the custom of the community and this custom could not exist in a vacuum.

This custom was --

Justice Hugo L. Black: Do you mean that a man has a right to do something deprived of that right because the custom of the community is to do that, that he can't act in the Court for the customs of the community to do that which he has a legal right to do to, choose his customers?

Mr. Jack Greenberg: I would say we would even have a different case here if the manager said that, “I am doing this as a matter free choice”.

You would then have a question as to whether or not he could have free choice in such a legal and factual context, but he doesn't even assert that.

He says, “I'm -- I merely reflect the community,” that's all he said.

There's no privacy.

This is not a home -- like a home.

He's invited these people into the store.

He has solicited their trade and many of them traded there a long time before, before this question ever arose.

Justice Tom C. Clark: He had a sign [Inaudible] to this counter.

Mr. Jack Greenberg: Saying invited guests only.

He didn't even have a sign saying, no Negroes.

Justice Tom C. Clark: [Inaudible]

Mr. Jack Greenberg: Pardon me?

Justice Tom C. Clark: But he said these are not invited.

Mr. Jack Greenberg: But then he said he doesn't send out invitations to anybody.

Any white person can sit there and is automatically considered to be invited and any Negro is automatically considered not to be invited and any white person who's a friend of a Negro is automatically uninvited.

Justice William O. Douglas: Of course this question on private property has been quite a long standing argument in this Court, going back to Brown versus Illinois and all of the cases since then that I have a right to do with my property what I want.

Sometimes the answer has been that there is a state law that regulates the rates, other times it's the State, the Federal Constitution prohibits it.

I don't see why you shy away from lawful right up to this problem of private property argument.

Mr. Jack Greenberg: Well, I was just about to get to the property argument at this point and our argument on this point is that it is important first of all to analyze just what is the property right involved in this case.

This manager did not seek to keep all persons out of the store or even Negroes out of the store.

He welcomed their trade.

He merely wanted that an un-severed part of the store to segregate them on the basis of race at this particular lunch counter.

He was willing to serve them standing up.

They didn't want to go into the office where the employees are allowed, or to his private home or his club.

The property right he was asserting in this case simply upon analysis of a property is just a bundle and [Inaudible] -- of rights and privileges as Justice Cardozo said, the property right was the right to discriminate racially against an invited customer at this particular portion of the store.

Now while that may be called a property right is, any relation -- legal relationship among persons with regard to things may be called a property right, we submit that it is not a property right of such dignity.

In fact, it is odious to our institution that it can stand up against the high purposes of the Fourteenth Amendment.

So we think it's im --

Justice Byron R. White: [Inaudible]

Mr. Jack Greenberg: Well, I'm saying --

Justice Byron R. White: -- that he was relying on custom.

He had been asserting his property right.

He might have said, “I'll serve a Negro”.

Mr. Jack Greenberg: Yes, I am -- part of my problems --

Justice Byron R. White: You're really arguing another case.

Mr. Jack Greenberg: Part of this problem I'm arguing is I'm trying to bring all these many things together and when I'm arguing one I don't mean to exclude the others. What he was asserting --

Justice Byron R. White: How long -- how long did the State permitted him to -- they pressed to have it -- to serves Negroes at all the counters in the store?

Mr. Jack Greenberg: At all the counters?

I think several weeks or months after these demonstrations, after these arrests, he just started serving everybody at the -- in fact all the stores got together and apparently came to an agreement.

Justice Byron R. White: But how long did -- had it always been true that the State had permitted him to serve all customers at all counters in the store except in lunch counters?

Mr. Jack Greenberg: Yes.

Yes, that has always been true, yes.

Justice Byron R. White: And so it never had been the custom where the community practiced to exclude Negroes from an establishment like this?

Mr. Jack Greenberg: No.

Only -- the only community custom was the segregation and as is well known to sit down together and eat, that is the anathema and that is the community custom he was enforcing there and he said so.

He said, all --

Justice Byron R. White: A lot of community custom do not segregate and a lot of community customs do segregate.

You say they were segregated from the cradle to the grave.

In certain respects they were, in certain respects they were not, isn't that right?

Mr. Jack Greenberg: That is correct.

Justice Byron R. White: They were not segregated in buying food.

They weren't -- to take home and cook.

They weren't segregated in buying anything in Kress.

Mr. Jack Greenberg: Except food while seated.

Justice Byron R. White: Yes.

Mr. Jack Greenberg: That's correct, yes.

And that of course is one of the symbolic keystones of segregation.

The sitting down together and eating even at the Kress's Dime Store.

Justice Byron R. White: Except that now in this case, Kress said that his property right had been -- in effect that his property right had been infringed by the State.

Mr. Jack Greenberg: Kress?

Justice Byron R. White: Yes, (Voice Overlap) --

Mr. Jack Greenberg: No.

Justice Byron R. White: Except that he was following customs, community customs.

Mr. Jack Greenberg: Well, he never really asserted any private right.

He said the only thing I'm asserting here is something the State is requiring me to do or asking me to do.

That's the only thing I'm asserting.

Justice Hugo L. Black: [Inaudible] from the record, [Inaudible] the question to mean.

Mr. Jack Greenberg: Well I don't want to be misleading.

I didn't -- he -- that isn't his exact words.

Justice Hugo L. Black: [Inaudible]

Mr. Jack Greenberg: No, he didn't --

Justice Hugo L. Black: [Inaudible]

Mr. Jack Greenberg: I'm sorry.

I didn't want to be misleading by that.

On page 22, he said that, “It is the policy of our store to wait on customers depended upon the customs of the community.

It is not the custom of the community to serve Negroes in the basement luncheonette.

Even if Negroes accompany” -- I'm reading 22 and 23.

“Even if Negroes accompanied by white people were orderly at our luncheonette because of the policy of the community, we would not serve them.

White people are considered guests” and on page 44, he told one of the petitioners in this case, “The custom has not been changed and you will have to leave.”

Justice Arthur J. Goldberg: Mr. Greenberg, that's what the man [Inaudible] he was not the owner of the store.

Mr. Jack Greenberg: He was manager of a national corporation.

Justice Arthur J. Goldberg: So, we have a person who was not carrying out his own policy [Inaudible]

Mr. Jack Greenberg: That's correct.

Justice Arthur J. Goldberg: He was carrying out a company policy.

Do I understand from the record that in this case, you don't reach the questions on whether the owner [Inaudible] exercising his own position [Inaudible].

In this case, he asked the [Inaudible] to serve people without discrimination [Inaudible].

That represents [Inaudible] not to serves Negroes here, sitting down [Inaudible]

Mr. Jack Greenberg: That's correct.

That's absolutely correct and so that any assertions of private choice here attenuated twice.

First, it's the custom of the community and second it's the national chain at its headquarters in New York that says that you shall follow the custom of the community and that's all the manager does.

Justice Byron R. White: You mean to say that the -- that you -- you say that the company here, this manager or -- and the company were exercising a free choice of following or not a local custom and at some places they did and in some -- whatever the custom was they followed it.

You're saying this is -- this is what they freely chose to do.

Mr. Jack Greenberg: Well, I don't know how free it was.

I think they felt they had to follow it if they wanted to do business down there.--

Justice John M. Harlan: [Inaudible]

Justice Byron R. White: They were coerced into it.

Mr. Jack Greenberg: They were not coerced in the normal sense of the word, no.

They were not because even that ordinance there was not being followed at the stand up counter.

They're not being coerced in that sense, but I'm trying to say, any consideration --

Justice Byron R. White: You're saying though that -- you are saying though that the company felt that it was not free to exercise its private property right to choose among its customers.

Mr. Jack Greenberg: Well, it did not.

It said, “We are following the custom of the community.”

It didn't say that Kress' feels this way or --

Justice Byron R. White: I know but you feel that they -- that they felt they had to do it, is that right or not?

Mr. Jack Greenberg: Well they did it.

Since they want to do business down there, I assumed they did it because they feel they had to do it.

Their motivations were not explored beyond that but any considerations of privacy that might be involved in a home or even in a corner luncheonette with half a dozen seats so forth are hardly at issue in a case like this where we -- as I say, have a national corporation with the policy made in New York to follow the custom of the community and they follow the custom of the community and even this custom of the community is not something entirely a part from state law.

The scaffolding was the state law and when the concrete hardened, there, we are stuck with it and you just can't completely divide the two.

Justice William J. Brennan: I don't understand then Mr. Greenberg why you're fencing with the question whether there was something in the way of state coercion whether you express it in language of custom.

Doesn't your whole case or does it not rest on the premise that these choices, if they're choices at all are choices compelled by some kind of state action?

Mr. Jack Greenberg: Yes, they are, yes.

Justice William J. Brennan: Is that the premise or not of your argument?

Mr. Jack Greenberg: Yes, that is the premise of their state action in this case from the beginning to end.

Justice William J. Brennan: Well, I must say, some of your answers have confused me here.

Justice Byron R. White: But no, that isn't the same answer you just said, on the factor that state action from beginning to end doesn't answer Justice Brennan's question.

This question was in view of -- you think that the state action was coercive or not.

Mr. Jack Greenberg: Well, of course it was coercive in the sense that they were coerced.

They followed it.

They would not have followed it unless they felt that they had to.

So they were coerced by the state action.

Justice Byron R. White: Well, how does that follow?

They wouldn't have followed enough because they had to.

[Inaudible] to say they followed because they wanted to.

Mr. Jack Greenberg: Well, in this particular case, the Kress' management has announced that is there company policy to follow the custom of the community.

Justice Byron R. White: Not because they want to.

Justice Hugo L. Black: Why?

Mr. Jack Greenberg: Because they --

Justice Hugo L. Black: Because they want to?

Do they have a free choice to do as they please?

Mr. Jack Greenberg: Because the totality of the state law and the custom which that law has induced and infused, if --

Justice Hugo L. Black: Why do you say the law has infused that custom because that will be a lifted viewpoint of this case?

Mr. Jack Greenberg: Well, I think that --

Unknown Speaker: [Inaudible]

Mr. Jack Greenberg: Well, I think of course but that is of course inseparable from everything else that's going on in the community.

Justice Potter Stewart: That this county was -- the reason here I suppose that you're reluctant to strongly urge that there was coercion in this case is that the record simply doesn't bear out on any coercion.

Mr. Jack Greenberg: There -- there were -- of course there is coercion of the petitioners.

I mean they have been arrested and sentenced to jail.

Justice Potter Stewart: I'm talking about coercion upon Kress'.

I'm looking now at page 22 of the record and all that it shows there is the -- as I read it, is the voluntary choice on the part of the management of Kress to follow the various local customs in the communities in which they have their stores, actuated and motivated by what they considered enlightened self interest and the profit motive.

Mr. Jack Greenberg: That's correct but our --

Justice Potter Stewart: Is that right?

Mr. Jack Greenberg: Our argument concerning custom is also addressed to the -- such considerations of private property in the sense of privacy that may be urged in this case.

This is not a private choice as one would make concerning his personal friends or concerning a private home.

This is a community choice that has been imposed upon the man.

Justice Hugo L. Black: [Inaudible]

Mr. Jack Greenberg: Our argument is that we have a totality of state action here from beginning to end of various sorts impinging upon the case in various different ways.

Justice Byron R. White: Would you say that the [Inaudible] in its totality of circumstances, persuasion by the State, participation by the State (Voice Overlap) --

Mr. Jack Greenberg: Certainly this -- I don't think a State has the power to persuade in this area even.

So far as the -- so far as the state parks are concerned in North Carolina the Civil Rights Commission has found in North Carolina states that they don't exclude Negroes in white state parks but they tell them they think they ought to go somewhere else.

I don't think the State has the right to do that. I think it's the same sort of thing.

If you're starting with the arrest and the conviction and you have a licensed premises and you have a proprietor who is not expressing his own choice or indeed the choice of the management down there but policy of the national corporation and you have no privacy involved at all.

Justice John M. Harlan: [Inaudible] your argument, if I understand it, if you brought an action under the Civil Rights Act with damages on this state of facts shown on this record, you would say it should be entitled to recover them, would you?

Mr. Jack Greenberg: An action against whom?

Justice John M. Harlan: An action against the restaurateur or Kress.

Mr. Jack Greenberg: Well, you see in that case there would not be the arrest and the conviction that we have in this particular case and I would urge that result if that would -- I don't feel that's necessary in the context of (Voice Overlap) --

Justice John M. Harlan: No.

What I'm just saying was whether your thesis doesn't suggest that result.

Mr. Jack Greenberg: I don't think it necessarily leads to that result.

I think --

Justice John M. Harlan: Why not?

Mr. Jack Greenberg: Because you would not in -- the restaurateur would not be the man who arrested and convicted them, --

Justice John M. Harlan: No, but your thesis --

Mr. Jack Greenberg: -- put them in jail.

Justice John M. Harlan: -- is independent, isn't it of the arrest?

I understand you don't say it -- you don't regard the arrest itself as constituting the state action.

You say that is simply part and parcel of this broader piece (Voice Overlap) --

Mr. Jack Greenberg: Yes, but it's not independent of it.

In fact, I think the arrest and the conviction are perhaps the most crucial part of the whole thing but we don't have to consider whether that alone makes the case because we have all these other things as well.

Chief Justice Earl Warren: I wonder -- it wouldn't help us a little as you suggest [Inaudible] without arguing these things that constitute the state action that you complain of.

Mr. Jack Greenberg: Yes, we have an arrest, trial, conviction, and we're going to have a prison sentence, unless the conviction is reversed.

Chief Justice Earl Warren: That being to the [Inaudible] --

Mr. Jack Greenberg: We have --

Chief Justice Earl Warren: [Inaudible] to that of course.

Mr. Jack Greenberg: We have a conceded statewide custom of segregation which is induced by state law.

Justice Hugo L. Black: But now --

Chief Justice Earl Warren: Now what law --

Justice Hugo L. Black: -- why do we have that concession -- excuse me.

Chief Justice Earl Warren: Yes.

Justice Hugo L. Black: Why do we have that concession?

Mr. Jack Greenberg: That there is a conceded statewide (Voice Overlap) --

Justice Hugo L. Black: Segregation law that's been part of this country unless you got to have state laws of segregation custom, you have to have state laws in order to get that [Inaudible]

Mr. Jack Greenberg: On page 13 of the brief of the State of North Carolina the respondents faced the charges with following a custom of segregation is indeed emphasizing the obvious and represents an attempt to convert the well known facts of a great discovery.

And on page 14, it is submitted therefore that before we are condemned they're now held up to scorn because we thought we could choose our associates.

It should be remembered in fact it should not be forgotten at all that prior to 1954, we have judicial sanction and approval for our customs and practices in the court of federal and state courts.

And we submit that you just cannot have this tightly knit network of state laws without it affecting private action and indeed the North Carolina Advisory Commission to the United States --

Justice Hugo L. Black: [Inaudible] that of segregate law, for segregation in the south was abolished, there would be no customs?

Mr. Jack Greenberg: I think it would go a long way just to begin the attenuation of that custom.

Justice Hugo L. Black: Of course.

Mr. Jack Greenberg: Yes.

Justice Hugo L. Black: That's quite a different thing.

Mr. Jack Greenberg: Well, but I think the converse also is true.

Justice Hugo L. Black: Are you arguing if the law, state law must such customs?

Mr. Jack Greenberg: Must produce the custom?

Justice Hugo L. Black: Yes.

Is your argument based on that premise?

Mr. Jack Greenberg: Our argument is not based solely on that premise.

Our oral argument includes that premise that state law does induce custom, yes.

Justice Potter Stewart: Produce it the other way, isn't it?

The custom produces the law.

Mr. Jack Greenberg: I think it worked both ways but I think when the law in turn reinforces the customs, yes.

Justice Arthur J. Goldberg: Aren't you -- aren't you armed with the very fact [Inaudible]?

Mr. Jack Greenberg: Well, that was what has happened.

It was the additional incentive that these demonstrations gave him, yes.

I would like to reserve the balance of my time if I may.

Chief Justice Earl Warren: You may, Mr. Goldberg.

Argument of Ralph Moody

Mr. Ralph Moody: May it please this Court.

Chief Justice Earl Warren: Mr. Moody.

Mr. Ralph Moody: We don't think this is primarily a matter of segregation or a segregation case.

We have a general trespass statute and as has been pointed out in Martin against Struthers in which I think Mr. Justice Black wrote the opinion, he appended a note to the opinion in which he pointed it out that some 20 states have general trespass statute and some 12 states have them in a more restrictive manner.

Justice William O. Douglas: In North Carolina, could a Negro get a room in a -- in an inn?

Mr. Ralph Moody: Could do what?

Justice William O. Douglas: A Negro get a room in an inn?

Mr. Ralph Moody: Our statute is a reenactment of the common law and that the innkeepers must take all proper customers who deport themselves with.

Justice William O. Douglas: Well that that's -- those --

Mr. Ralph Moody: I think --

Justice William O. Douglas: Those are some wildcards in that deck you just dealt.[Laughter]

Mr. Ralph Moody: How was that?

I didn't hear Your Honor.

Justice William O. Douglas: Proper -- you said proper persons who deport themselves well.

Mr. Ralph Moody: Well, what I meant was people that --

Justice William O. Douglas: That probably would exclude Negroes?

Mr. Ralph Moody: No.

What I meant was that a fellow came in drunk or something like that. I didn't mean that.

Justice William O. Douglas: But does a custom goes far as to exclude Negroes from getting --

Mr. Ralph Moody: Well, I don't -- I think about the custom is, they just don't go to the hotels as far as I know and as for [Laughter] -- they go to their own hotels.

I don't know about the custom and also --

Justice William O. Douglas: But your private property argument as I read your brief would extend as much to the hotels as it would to the stores.

Mr. Ralph Moody: No sir.

No, I don't want to say that because I say by statute and by common law the innkeepers in our -- in my state are bound to furnish accommodations if they have it and also the same thing would be as to the cabs I believe and gristmills and those ancient things that the common law provided that service had to be furnished.

I think that my state follows those laws.

Justice William O. Douglas: What is the distinction between those common law enterprises that you talk about in a retail store?

I don't understand.

Mr. Ralph Moody: Well, I don't -- the distinction is simply this that -- those rooms grow out separate and apart from stores and cafes and restaurants.

Justice William O. Douglas: Yes, well, we're -- we're still growing up and I assume and the courts fashion these rules (Inaudible) that you talk about as a common law.

Mr. Ralph Moody: Yes it does.

Well -- but I have -- I do not know of any rule though that has been --

Justice William O. Douglas: It is a -- is a private property of a retail store more sacrosanct than private property of a motel or a hotel?

Mr. Ralph Moody: Well, I think they're all private property.

I think they've got a lot --

Justice William O. Douglas: One that you can exclude, in others, you can't.

Mr. Ralph Moody: I think a person and I think it's supported by authority all of when -- in other states, northern as well as southern, I say that a person who owns property can exclude people from interference or coming on that property if he wants to.

Justice William O. Douglas: Except to hotels and motels.

Mr. Ralph Moody: And I would put the old common law we've -- where common law state “the gristmills and the cabs”.

Justice Hugo L. Black: I suppose that if North Carolina wanted to abandon their common law with reference to inns, they could do it.

Justice William O. Douglas: Well, that would depend on the Constitution of the United States, wouldn't it?

Mr. Ralph Moody: How is that sir?

Justice William O. Douglas: You come back then to the Constitution of the United States.

Mr. Ralph Moody: Oh, I'm sorry, I don't --

Justice Hugo L. Black: Do you think the Constitution forbids a state, require the states that's why the -- all hotels to receive anybody to [Inaudible]?

Mr. Ralph Moody: Do I think the Constitution requires that?

Justice Hugo L. Black: Yes.

Your common law, which do you think requires it?

Mr. Ralph Moody: Well, I think that as far as we've been – the way we've been driven by the common law.

The question has never been raised and --

Justice William O. Douglas: We're getting pretty close to raising it right now, aren't we?[Laughter]

Mr. Ralph Moody: Yes sir.

We certainly are but not with the hotel or a motel and not with a -- an inn or a cab.

We're raising it on a piece of private property that people own on which a general trespass statute that's enforced in all over this country says that people can accept such costumers as they want and exclude such costumers and he has not cited the case today which contravenes that right.

Justice Arthur J. Goldberg: Mr. Moody, could you tell us what the general effect in hotels or in motels [Inaudible] in your state?

Mr. Ralph Moody: No, sir I can't tell you one way or the other about it.

Justice Arthur J. Goldberg: You would think they will not -- would you not?

Mr. Ralph Moody: My idea is frankly that they -- that they have not.

As I said in a minute in my brief, we were raised and we were reared in the near view and a pattern of segregation that was handed to us, has passed it on to us.

We -- and as I also want to say, we had legal sanction too.

As you know from Plessy against Ferguson and James against Canada and in Thomas against the Board of Education and that line of cases, we had some judicial sanction for the positions that were -- that we had even from this Court.

Justice Arthur J. Goldberg: You do not have a provision or common law sanction provided into the [Inaudible]

Mr. Ralph Moody: Mr. Justice Goldberg, I don't know of any case that I could point to or where any question has arisen at all.

As a matter of fact I think that colored people have gone to their own hotels and have -- if there had been any that wanted for instance in the [Inaudible] that wanted to go, “Sir Walter, I haven't heard about it in main hotels”.

I just don't know what the attitude would be.

I am saying that innkeepers under our law, statute law which is in cooperation of common law and the -- that there were some exceptions other than the property rule here that I am contending for under a general trespass statute which I say is a valid statute and which I say does not segregate or pick them out as a class or a group at all.

It doesn't pick them out as any class or group and it does not make any arbitrary classification for that matter.

In regard to them, the statute is -- neutrally it applies to all people and if a person as we see it and as we enforce it whether right or wrong, if people come to the land -- on my land and I don't want them I tell them to get off.

If they come in my store and I don't like them, I tell them to get out.

This perhaps like in the old days, one of the Hatfields would've told the McCoys in one of the feud -- in the feuding days, and as far as I know our statute has been enforced that way as a -- not as a statute passed against colored people.

It's almost 100 years old.

There's no -- the -- he can't go back and generate a discriminatory basis in history for the passage of this statute at all.

As far as I can tell it didn't arise that way at all.

And as you go up through the cases, you only find these are the first ones I know of that color -- the colored people, I think this is sponsored organization by -- he says it's informal.

But they said they had a slogan that Mr. M. L. King had furnished them and I think it's a [Inaudible] is alright, I'm not going to raise any point about that.

But this statute -- they cannot -- any case be made that this statute has been administered, singled out -- colored people have been singled out and it's been administered against them.

It has not.

Justice Potter Stewart: You're talking about the trespass statute?

Mr. Ralph Moody: The trespass statute is --

Justice Potter Stewart: How -- when did that first enacted, Mr. Moody?

Mr. Ralph Moody: About 18 --

Justice Potter Stewart: About 100 years old or so?

Mr. Ralph Moody: Yes, it's 96 I believe to be exact.

I can get that I think for you in a minute.

Justice Potter Stewart: 95 years -- that's -- is this same statute, isn't it that was involved in a case in this Court, Wolfe against North Carolina.

Mr. Ralph Moody: Wolfe against North Carolina was here, the same statute in Wolfe against North Carolina was here, has some aspects like the statute in Marsh against Alabama and of that nature.

And --

Justice William O. Douglas: Your argument would be the same if the persons excluded were Jews.

Mr. Ralph Moody: Yes, redheaded people or myself or anybody else.

I say that if the man owns the property and he has the right to decide who comes on his property, I say he excludes anybody he wants to and for whatever whim, caprice or anything else.

If its -- his brother was killed by a redheaded man, he don't like redheaded people, excludes them from that or any other reasons.

It's his property and I say that he puts -- he arrogates property to just a merely bundle of rights and maybe it is.

But I say that's one right that hasn't destroyed and it's a right I say ought to be protected by the Fourteenth Amendment if we're going to keep property in this country.

Justice Potter Stewart: In New York I think there's a -- at least one place where a bar, the Fillmore Bar, where women are excluded, only -- it's a men's bar.

Mr. Ralph Moody: Yes, I think the -- I believe that's down in -- in the basement of that store or hotel, never have been there.[Laughter]

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: No sir.

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: I do not.

They're -- still they are --

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: No.

I think -- I don't mean to -- I think the -- it's too late to say the statutes -- Civil Right statutes enacted in the police power of the States has presented, I think they are.

But North Carolina has chosen to leave this an open question and it has chosen to let people do as they please.

Now, Mr. Greenberg I think has done some testifying in this case and I'd like to testify too.

As a matter of fact, where I live in Rowley colored people are going -- go into the lunch counter at Wofes, that's a nice food chain, they go into the lunch counter at Wofes, that's a nice food chain.

They're eating in there.

They go into the lunch counter at McClelland's.

Justice William O. Douglas: Are those cases on their way up here too?

Mr. Ralph Moody: No sir. [Laughter] Those are not cases Your Honor.

No.

I -- the -- as -- but I say as a matter of fact my point was North Carolina leaves it to the choice of the people who operate the establishment and these people chose to accept colored people and they are doing so.

Justice William O. Douglas: Well, some states left it to the utilities to determine how much they charge, that was under the guise of property rights.

Mr. Ralph Moody: Yes sir, that's true, but if it is Your Honor's position that a restaurant is a public utility then I mean --

Justice William O. Douglas: I'm just inquiring, I --

Justice Hugo L. Black: Suppose it is a public utility, does the Constitution make it a public utility under the statute being [Inaudible]?

Mr. Ralph Moody: No.

What statute?

You mean this?

Justice Hugo L. Black: Well, if you say the argument that's been raised in this Court that a public utility serves the public is that a constitutional rule that requires the public utility to serve everybody or is it the rule of law?

Mr. Ralph Moody: Well, I [Inaudible] rule now, I think in all -- in view of all of these cases where --

Justice Hugo L. Black: Yes, that they can be regulated.

Mr. Ralph Moody: Yes sir.

Justice Hugo L. Black: But do -- does the Constitution do it?

Mr. Ralph Moody: Well, if I understood the questions on all those line of cases like Morgan against West Virginia and the Bowman case in Alabama and all those, those were public utilities and it was -- it was a valid constitutional right to be segregating in the seating part of the -- on the buses.

Justice Hugo L. Black: Yes, that's state action.

Mr. Ralph Moody: Yes sir.

Justice William O. Douglas: Or putting the man in jail is state action, isn't it?

Mr. Ralph Moody: Yes, it is and we've -- they've been indicted.

Their strings have -- been indicted and put in jail on this very statute at both times and both colors, and in fact we invoked it in favor of as I pointed out to you in my brief in State against Hills, we invoked it in favor of the kindred statute, the forcible trespass which is a much sterner -- a much more aggravated offense, we invoked it for a colored woman where a group of white people went in, cut all of their timber that white people were convicted in the Supreme Court of –-

Justice Hugo L. Black: As I understand it, you admit state action with reference to [Inaudible]

Mr. Ralph Moody: I do.

Justice Hugo L. Black: With reference to the conviction.

Mr. Ralph Moody: Yes sir.

Justice Hugo L. Black: What you claim is that the law is indicted because as you would argue the law, the property owner has a right.

The Constitution doesn't take away from him to choose the customers that are coming to his store and tell him what he wants to and when he wants to.

Mr. Ralph Moody: I say that's --

Justice Hugo L. Black: That's your argument.

Mr. Ralph Moody: And I say that's the basic question.

This, the McCloud issue trying to make a segregation question -- a case out of here just because these defendants happened to be colored people.

Justice Hugo L. Black: Now, the Civil Rights Act which were passed would've protected that by legislation and this Court must stricken them down, would it?

Mr. Ralph Moody: The -- I don't know.

Do you mean the old Civil Rights Act?

Justice Hugo L. Black: Yes, the old Civil Rights --

Mr. Ralph Moody: In the Civil Rights cases, it would have protected them in theaters and things of that nature.

I don't believe that they raised the question there about food or --

Justice Hugo L. Black: That was stricken down on the ground that the law couldn't be passed.

Mr. Ralph Moody: Yes sir.

Justice Hugo L. Black: Because of the Constitution and a converse argument here is the Constitution does it without an act.

Is that it?

Mr. Ralph Moody: The converse argument is that the Constitution does it without an act in the -- yes.

I think he's saying of course now, Mr. Greenberg is hunting for state action.

He's hunting for a state action hook to hang on here and he goes back to our customs and he says our customs are the -- dogmatically the equivalent of state action by a sort of a process of verbal transubstantiation that goes into state action and if that was true --

Justice William O. Douglas: You know our decisions under the restrictive covenant laws, don't you.

Mr. Ralph Moody: I do sir, but I know that you had a statute in that though that a valid federal statute that said that colored people had the right to acquire property in all respects and never as white people did and the Shelley case as I read it to a large extent hangs on that valid statute.

Justice William O. Douglas: You don't think a court could deny a person equal protection of the laws?

Mr. Ralph Moody: I don't -- I think a Court could, yes.

Justice William O. Douglas: Oh, maybe that's the question we have here.

Mr. Ralph Moody: No, I think the Court can, but that -- they were -- in the Shelley case, in the first place, the people there were in agreement.

They were in agreement there, that were the -- the colored people and the white people both in -- I believe they've executed the deeds and they were all in agreement there in the Shelley case and furthermore that's buttressed by this statute that gives them the right, the same as anyone else to negotiate and acquire property.

Now, of course the argument was made well, you can do that for a -- the white for whom -- do the same thing or deny it on for white people.

And this Court said no you can't have equality of discrimination because if it's bad on one, of course it would be bad on the other.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ralph Moody: Yes, I want to -- I'm glad that you got my mind on that Mr. Justice Goldberg.

I want to go into that just a minute if you will allow me to do so here.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ralph Moody: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ralph Moody: I will.

Yes, I will.

Justice Arthur J. Goldberg: About the custom.

Mr. Ralph Moody: There is an old statute on the National Guard that you can have colored troops, but they will be -- they must be commanded by white officers, that's there.

In view of your later line of decisions, I don't think the statute is valid.

But as you know, these statutes were -- lurk on books until some commission comes along, statutes commission and takes them out.

Actually, we'd go in process of that matter.

Chief Justice Earl Warren: How about the ordinance of the city of (Voice Overlap) --

Mr. Ralph Moody: The ordinance of the City of Durham as far as I know is in this shape that it was never enforced.

The city attorney tells me that they are revising their ordinances and that that one is marked on the margin repeals.

Now whether they passed a resolution repealing it or not, I don't know because I want to be candid about it.

Justice Byron R. White: [Inaudible] to this case at all?

Mr. Ralph Moody: No, that --

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: Well, of course I say this isn't in this case at all.

It's not in the state record.

I thought that when a state was brought to this board in answer for its misdeeds that it will have to be on the record.

It was there.

They could have -- in making all these pattern of segregation.

I have no judgment -- judicial notice of our laws we've got on the statute books.

But he's gone in to ordinances and he's going -- he is charging me with the ordinance that Charlotte have down there in which it said we have some colored policeman down there and they fix some bounds where -- in which they would work.

Well, that was nothing in the world but police administration.

Race and racial differences are a fact whether we like them or not.

You can ask the [Inaudible] and the Flemish about that in this last right in Belgium.

And for instance I used to live in San Antonio, Texas and I know that to some extent the Mexican policemen that they have there had some bounds and limits as to where they would operate.

Now, these were good police administration here.

We're charged -- I'm brought here on that ordinance in Charlotte because I don't even know anything about it.

But Mr. Goldberg is getting back to the laws, I mean does that --

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: There is the -- there is that factor about the National Guard.

I don't think statute is valid. Of course if you want to go into the Civil Rights, in the Civil Rights reports, I wouldn't strike the bad ones although [Inaudible] because I will find this is much an offer, the Mason, Dixon line as he'll find in the south.

But -- incidentally, if the last, at this report, Civil Rights report, the district National Guard here hasn't been desegregated here.

Chief Justice Earl Warren: Do you have any white troops that have colored officers in your state?

Mr. Ralph Moody: We do not at all.

Chief Justice Earl Warren: I beg your pardon?

Mr. Ralph Moody: We don't.

Chief Justice Earl Warren: But why do you say that the law is invalid if it's obeyed to that extent?

Mr. Ralph Moody: Well, I -- I don't think we -- under the latest decisions of this Court and the trend of those decisions that we can setup a National Guard that would be separate, that would have separate troops, colored troops (Voice Overlap) --

Chief Justice Earl Warren: I can't hear you.

Mr. Ralph Moody: I am sorry.

I don't think we can setup a National Guard now that would separate troops.

Justice Hugo L. Black: [Inaudible] application on it?

Mr. Ralph Moody: Never had any test case.

If that's -- very few they were applied and want to go into the National Guard.

Now, with all due respect to these people, soldiering is not their great point if we include that by General Mark Clark's book on Calculated Risk about the campaign in Italy and what happened to the 92nd Negro division.

Justice Hugo L. Black: That wouldn't have much to do with this case.

Mr. Ralph Moody: No sir, it wouldn't but the soldiering is not their point.[Laughter]

Chief Justice Earl Warren: You might also read what General Mark Clark said when he first came back to this country after fighting with those people that he would happy to have people of their qualities fighting the way they did.

Mr. Ralph Moody: Well, I read a different passage Your Honor. [Laughter]

Justice John M. Harlan: It has no great bearing on the issues in this case, does it?

Chief Justice Earl Warren: No, except that they're raised and let us now discuss it.

Mr. Ralph Moody: Well --

Justice Tom C. Clark: Do you have [Inaudible]

Mr. Ralph Moody: Yes, some other book.

Justice Tom C. Clark: [Inaudible]

Mr. Ralph Moody: Oh, that's some --

Justice Tom C. Clark: You're an attorney general though?

Mr. Ralph Moody: Yes, I am, yes sir.

Justice Tom C. Clark: [Inaudible]

Mr. Ralph Moody: I've been there a little -- some 15 or 18 years.

Justice Tom C. Clark: Do you have any cases of this type?

Mr. Ralph Moody: Yes sir I do.

Justice Tom C. Clark: [Inaudible]

Mr. Ralph Moody: Yes sir.

Justice Tom C. Clark: Do you have many of these cases?

Mr. Ralph Moody: No sir.

We haven't had many others.

So very many of the case is now -- that -- you're taking to within that scope, the school cases and of themes of that nature.

The (Voice Overlap) --

Justice William O. Douglas: You mean the desegregation law is pretty well enforced?

Mr. Ralph Moody: The segregation laws pretty well enforced?

Justice William O. Douglas: I mean, that means that they are pretty enforced that's why you don't have these cases.

Mr. Ralph Moody: No, it's a -- the case is there.

There cases being brought all the time.

There are cases but the State has gradually assigning pupils.

Now, he had the Civil Rights report about the assignment to pupils that we never voluntarily assign them any pupils.

Well of course, I don't know when that Civil Rights report was collected.

But we do assign them and I have the list and the tabulations of them here.

For instance, in Shuttleworth 50 were assigned.

50 Negro pupils were assigned to predominantly white schools and 26 white pupils were assigned to predominant Negro schools.

Justice Hugo L. Black: [Inaudible]

Mr. Ralph Moody: All they've said is a -- in view of the decisions of this Court that its other -- utterly invalid and that this Court's --

Justice Hugo L. Black: [Inaudible]

Mr. Ralph Moody: No except to the hospitals.

Now he mentioned the hospitals.

The state hospitals and they brought a suit having a little boy made it.

The hospital had told them repeatedly that he had to be on the waiting list and they didn't believe that and so they brought a suit to having him admitted to Murdock School which is a part of the little boy -- sort of Negro -- colored boy suffering from schizophrenia or something of that nature.

I shouldn't made it that he was entitled to be admitted to the hospital.

Chief Justice Earl Warren: We'll recess now.

You may finish after [Inaudible]

Mr. Moody, you may continue please.

Mr. Ralph Moody: Before I get onto the question of Mr. Justice Clark about the school situation, I'd like to call to the Court's attention that the manager didn't give the -- being the customer of the company was not the only reason he gave for not wanting colored people to come (Inaudible) in fact to the luncheonette.

He gave the custom rule that Mr. Greenberg has talked about, if you refer to 20 -- page 22 of the record, he also said --

Justice William J. Brennan: What page?

Mr. Ralph Moody: Page 22.

He also said this, “In the interest of public safety, it is our policy --

Justice William J. Brennan: [Inaudible]

Mr. Ralph Moody: Record 22.

In the interest of public safety, it is our policy to refuse to serve Negroes at the luncheonette downstairs in our seating arrangement and he also said it is the policy of Kress to refuse patronage of white people in the company of Negroes at that counter.

And as you know they had a place to eat, the stand up counter.

Now, you -- we -- I was wondering -- left off, I was talking about schools in Mr. Greenberg's charge that under the Civil Rights court we'd never admitted any voluntarily.

Well now, this is not -- may not be a great number, but this is true as a matter of record.

19 non-white students were -- in Western Salem were assigned to predominantly white schools, 1962-63 school year without a court order.

In Rowley, 47 have been assigned without a court order.

Chief Justice Earl Warren: 1962, 1963, this is the year just coming about --

Mr. Ralph Moody: That's right sir.

Chief Justice Earl Warren: -- this year.

Mr. Ralph Moody: Yes sir.

In Charlotte, 50 have been assigned to predominantly white schools.

26 white pupils assigned predominantly in Negro schools.

Assignments made initially by the Board.

No assignments made as a result of court order.

Now, when you get to Durham, there were assignments made there and I believe I gave you that.

Chief Justice Earl Warren: Was that -- this year too Mr. Moody, the one you just read to us?

Mr. Ralph Moody: The 42 students are brought to attend in Durham.

I think that's this year.

Let me see if I can find Your Honor where it is -- give the date.

It was 1962-1963 school year.

Chief Justice Earl Warren: Yes, that's this --

Mr. Ralph Moody: That's right.

Chief Justice Earl Warren: This term, just started.

Mr. Ralph Moody: That's right and of course Mr. Greenberg's Civil Rights Committee didn't have -- wouldn't have had that -- of that report.

Now, Judge Stanley in the District Court found in the Durham case, he found this.

In his opinion, he said it should again be emphasized we're not dealing with the situation where a school board has a fixed policy of maintaining a totally segregated school system.

A dependent board has assigned Negro children to Durham High School, Broaden junior school, Collar junior high and he gives a list of schools which I not take up the time.

Now he finds that in his order.

So as Mr. Justice Clark they -- there are some suits pending in local units.

There are no suits pending at the state level and you mentioned by being in the Attorney General's office.

I looked after those at the state level.

After several suits at the state level, no more room.

Now, let me answer some of these charges.

I've already dealt with segregation in mental institutions and told you that we admitted they were entitled to go in a lawsuit.

As to the cemeteries, I know of no law that segregates as to the cemeteries.

He cites a statute before a municipality to cover cemetery, if they were predominantly white people in it, they'd follow that, predominantly colored, they'd find -- they would follow that.

And the statute he cites however to maintain his proposition, he doesn't bear that out because the statute he cites if you look at it has simply provided that where prisoners died in the penal institutions and their bodies were not claimed, the bodies of the colored prisoners would be turned over to the colored funeral homes and the bodies of the white to the white funeral homes.

I know of no reason in the world legal or otherwise why a colored person cannot obtain these services.

I see -- I found maybe he has but I found no prohibition why colored persons can't obtain the services of a white funeral home director and vice versa.

Now he should --

Chief Justice Earl Warren: Could they do it as a matter of fact, do you happen to know Mr. Moody -- I don't -- do you happen to know if they do that?

Mr. Ralph Moody: If they do that?

Chief Justice Earl Warren: Yes, if a -- a white --

Mr. Ralph Moody: No sir, I don't know of any case that it's been done but I see no -- there's no state action --

Chief Justice Earl Warren: Or law, well, (Voice Overlap) --

Mr. Ralph Moody: -- that would prevent it sir.

Chief Justice Earl Warren: (Voice Overlap)

Mr. Ralph Moody: So what -- that's the impression I intend to convey to you.

Chief Justice Earl Warren: Yes, I un -- I understood that.

Mr. Ralph Moody: Now, let's take the segregation in the -- as to the toilet facilities in private employment and the Board of Health requires a report on that in rating the cafes too.

Well, one reason we have that frankly is this -- simply is a fair their rate is higher than ours.

And I can't get around the facts.

As to separation of races in front -- in fraternal orders, I don't know anything about that at all whether that is based on mortality tables and longevity or anything like that, I don't -- I know anything -- I don't know anything about that statute or what -- or any enforcement of --

Justice Hugo L. Black: What is that statute?

What – [Inaudible]?

Mr. Ralph Moody: It provides that fraternal orders have to be -- that fraternal order can't operate in the state of North Carolina if it takes both races into the fraternal.

Justice Hugo L. Black: But they don't need any law on that for a large number of fraternal orders, do they?

Mr. Ralph Moody: I wouldn't think so.

We still have the constitutional provision that stand to racial marriages.

Justice Tom C. Clark: [Inaudible]

Justice Hugo L. Black: Has there been a case of that kind?

Mr. Ralph Moody: No sir.

That's not in --

Justice Hugo L. Black: Suppose the -- having them pass this.

Mr. Ralph Moody: How is that sir?

Justice Hugo L. Black: [Inaudible]

Mr. Ralph Moody: Yes.

All I get (Inaudible) -- they -- they've been all been tested out.

As a matter of fact, the true picture of this whole thing is these are lingering along in the statutes.

They will be taken out of the general statutes commission.

And he has presented a picture here that as a matter of practical operation and light doesn't exist.

For instance he -- he's got us charged here with laws about the waiting rooms, in the bus stations, and the railroads.

Well, those laws may still be there.

They've got to come out, but as a matter of practice, there's no segregation that I know of in North Carolina on waiting rooms at all.

I ride the buses and I see them.

I walk by the bus station every morning to work and I see colored people in there with the white people in the waiting room and here are some lawyers from Durham and they know that it's true up there too.

I've got the letter of the Trailway executive vice president, and he says they have obeyed the order ever since it was issued by the Interstate Commerce Commission.

And I ride the buses and I defy them to prove it if that -- there is any seating arrangement that relates to race on the bus because everybody rides where they want to and where they can get a seat and sit down.

Chief Justice Earl Warren: But haven't a lot of these things developed these situations that you're talking about now developed since this case was instituted?

Mr. Ralph Moody: No, I don't think the --

Chief Justice Earl Warren: Now, do you certainly -- the schools (Voice Overlap) --

Mr. Ralph Moody: No I don't think so --

Chief Justice Earl Warren: Certainly the school cases were and certainly before Boynton, there was the Boynton case, they were down there, were they not?

Mr. Ralph Moody: Boynton against Virginia?

Chief Justice Earl Warren: That -- that was in Virginia, was it?

Yes.

Mr. Ralph Moody: Yes, Boynton.

Chief Justice Earl Warren: Yes.

But before the Boynton case, did you have a -- did you permit them to use the facilities of the stations (Voice Overlap)?

Mr. Ralph Moody: Mr. Chief Justice I think what we did was that when the Interstate Commerce Commission issued its order we obeyed it.

We had separate waiting rooms and we've got them both open today and today a large fraction of colored people prefer to go over into other waiting room where they used to go and talk and deal when their served.

The others who want to go into white waiting room can do so.

And they know that and that's so.

Justice Arthur J. Goldberg: Mr. Moody, is there [Inaudible]?

Mr. Ralph Moody: No sir.

I don't contend that at all.

I think some segregation is practiced in North Carolina.

These books here tell me its practice in Michigan and in New York and Cairo, Illinois and all those places.

I've -- Mr. Justice Goldberg, racial antiquities and racial interconnections are a fact, whether they square up with idealistic provisions of concepts of law or this that and the other it's the fact.

Justice Arthur J. Goldberg: I understand your argument therefore [Inaudible]

Mr. Ralph Moody: That's right.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ralph Moody: That's right, exactly.

They've been [Inaudible] and had it on -- if you will, the -- another implication comes from your statement and if you wish me to say so, I'll say it.

Probably it wouldn't have been eliminated at all because that hadn't been the law because we have that way of life and we practice that way of life and it was the thing we were born into and it is the thing we did just as many other groups religiously or otherwise are born into that thing that they practice in to.

I am -- before closing of this amount of time, I wish to deal just a minute with the question that a restaurant as a matter affected with the public interest.

Now I don't know what the -- if a restaurant is affected with a public interest just to this particular reason or not, I do say that under your decisions which I have quoted copiously in my brief, the ordinary occupations in economic life from New State Ice Company against Liebmann, Standard Oil Company will effect and in the terminal taxi cabs and all those, this is not a public facility that you've been dealing with and according to the definations that you've been given which have been exclusively devoted to public service and necessarily it would not be because those have -- most of those have a monopoly.

This thing about restaurants and cafes is a thing that rises and falls in the flux of economic life.

Some institutions grow up and establish chains and new forms of furnishing food come in and drive the others out.

And I -- to me it's not of any -- well, a permanent, enough economic nature to be affected with the public interest.

And if it is may I -- would not the doctor with his office soaking out on the street, wouldn't he be affected with the public interest?

Would not the lawyer be affected with the public interest?

He deals with the public also.

Would he choose -- have no right to choose his clients.

Would a southern family that has an extra room and rents out one or two?

Justice William O. Douglas: I know some bar associate -- under some bar association arrangements with the judiciary, the judges assign lawyers to represent people.

He doesn't pick his clients completely.

Mr. Ralph Moody: Were you speaking of the indigent --

Justice William O. Douglas: Yes.

Mr. Ralph Moody: -- cases?

Justice William O. Douglas: Yes.

Mr. Ralph Moody: Well, yes of course.

I think Mr. Justice Arthur Vanderbilt did that in New Jersey.

Justice William O. Douglas: It's still going on now.

Mr. Ralph Moody: All the time.

He carried them by alphabetical order on down the line.

But I -- to me though lawyers and officers of the court ought to do what the judge says along those lines.

In fact he [Inaudible] -- he better.

[Inaudible] anymore about that but if it is a public facility and if they can come in, constitutionally have to come in, what are the goods in there?

Does -- how -- is the man's right to [Inaudible] -- there is goods as a man's right to charge for the goods taken away also?

It -- do we --

Justice Hugo L. Black: Well, I as -- I understand the public interest is, its like Mann.

Mann had under consideration a statute which is attacked as unconstitutional, fixed prices and the Court said that matters that were fixed for the public interest, that was the words that were used there which have not been wholly credited in some later cases, matters fixed for the public interest could be regulated by Government.

Mr. Ralph Moody: That's right.

Justice Hugo L. Black: Now, is there any of them that holds that the Constitution does the regulating?

Mr. Ralph Moody: Does the --

Justice Hugo L. Black: I don't quite understand your argument about the public interest question.

Mr. Ralph Moody: Well --

Justice Hugo L. Black: I don't understand how that would effect this constitutional interpretation.

Mr. Ralph Moody: Well I am saying this -- I think this and I have been obscure about that but here's what I'm trying to get across.

He is arguing in his brief that these restaurants and cafes and these sandwich shops and everything in a certain sense or impressed this instrumentalities of the Government, they are affected with the public interest and therefore, if that's true, there is the intrusion of the State into it when you get there.

And --

Justice Hugo L. Black: But it would be an intrusion of the State if it regulated them wouldn't it, and that's been sustained.

Mr. Ralph Moody: That's right sir.

But he's saying that when this -- when -- that these are public -- that are affected with the public interest and therefore the State is -- intruded into it and it becomes a state action and in line of cases that you have developed here say that nobody can be excluded from things, where the area, where the state comes into.

He's bringing the State in by the theory of a public interest.

Justice Hugo L. Black: Suppose the State had passed the law which says that the merchant could not serve white people and colored people together, would you -- would argue that that's a good statute?

Mr. Ralph Moody: No.

Not if the State makes the division.

Justice Hugo L. Black: Then you would say that the State regulated that place in a way that offends the Fourteenth Amendment.

Mr. Ralph Moody: I would say that if you hold that a café is a business affected with the public interest that that thereby subjects it to -- into state control and the -- puts it in an area where the State is and there could be no discrimination.

Justice William O. Douglas: Oh, we have many cases and you are familiar with them where -- like the picketing cases, you don't need a statute of the State.

He relies upon his constitutional right and the state judge puts him in prison for doing it, and we say that's violating a -- of the Fourteenth Amendment as it -- as incorporated in the First Amendment, that's state action.

Mr. Ralph Moody: Yes it is.

And there's state action --

Justice William O. Douglas: So we've got the same question here.

Mr. Ralph Moody: It is but what right will --

Justice William O. Douglas: The power enforced of the Constitution (Voice Overlap) --

Mr. Ralph Moody: What is the countervailing Mr. Justice Douglas?

First, let's still ask -- let's us go back to Marsh against Alabama.

There was a trespass statute there but you said the countervailing right as to religion and freedom of speech foreclosed the prosecution under the trespass statute.

What is his countervailing right here?

Justice William O. Douglas: Equal protection.

Mr. Ralph Moody: It's never been established before that equal protection --

Justice William O. Douglas: Well, that's --

Mr. Ralph Moody: -- requires that he can go into any place he wants to or any café.

Justice William O. Douglas: That's -- I know, but that's the issue in the case and that's what we're (Voice Overlap) --

Mr. Ralph Moody: It has nothing -- I know, that's what we're here for.

Justice Hugo L. Black: I want to correct your answer with reference to myself.

Mr. Ralph Moody: Yes sir.

Justice Hugo L. Black: I have never agreed to an opinion yet that said that the Constitution forbids the State to keep people from watching around and around a place.

I have supported decisions that said you can't control the views they express, but I have not agreed an opinion knowingly that said the State or the Federal Government is without power to regulate the conduct of people marching around and around or in front of a place.

Mr. Ralph Moody: And so I -- and that is --

Justice William O. Douglas: Well, we had a unanimous decision in the Thornhill case where we struck down --

Mr. Ralph Moody: Yes, but in Kovacs against Copper and --

Justice William O. Douglas: On ambiguity.

Mr. Ralph Moody: Giboney against Empire, in all those, you said that free speech couldn't be a cloak that -- to --

Justice William O. Douglas: But the Constitution doesn't need legislative implementation to have force and effect, does it?

Mr. Ralph Moody: The Fourteenth Amendment has direct -- it's directed that state action that -- I mean that's sine qua non, isn't it?

Justice William O. Douglas: Well, but the -- our case -- our reports are filled with decisions where's judicial action is sufficient.

Mr. Ralph Moody: Yes.

But what you're dealing Mr. Justice Douglas was statutes in those cases.

You were dealing with state action in statutes too.

Justice William O. Douglas: Well, I know --

Mr. Ralph Moody: There are no statutes here.

Justice Hugo L. Black: I could understand --

Justice William O. Douglas: I don't --

Justice Hugo L. Black: -- your argument better if you just keep yourself to the question, whether owner of property, the Constitution forbids an owner of the property to select his customers whether there's any provision of the Constitution that even say that.

Mr. Ralph Moody: I know of no provision that it -- that has nullified that right.

Justice William O. Douglas: Up to now?

Mr. Ralph Moody: Yes sir.

Unless you do it now.

Chief Justice Earl Warren: Mr. Moody may I ask you if --

Mr. Ralph Moody: Yes sir.

Chief Justice Earl Warren: -- what if any distinction you make between these two hypothetical cases in one the restaurant owner says, “I only want to deal with whites.

I don't want to -- I only want to deal with whites.

I don't want to deal with colored people at all and colored people are not welcome in my establishment and if they come in, I want them put and I'm entitled with the text of the law to get them out.”

On the other hand, you have a store owner like who are worse or some of the rest of these that we're talking about where the colored people are invited in.

They're invited to buy, they do buy and in one part of the store, he says, “Here is a counter where you are prohibited and if you walk in there, I order you out and if you don't I'll have you arrested and the law doesn't arrest me.”

Is there any difference between those situations as you see it?

Mr. Ralph Moody: No sir.

Chief Justice Earl Warren: They're the same?

Mr. Ralph Moody: If a man who owns property can admit to it under my theory and under the theory or -- of property rights that I'm trying to hold to --

Chief Justice Earl Warren: Yes.

Mr. Ralph Moody: -- he could meet partially all, none or any part he can reserve to himself with, the right to use and enjoy his own property.

Justice William O. Douglas: And you could therefore if you're running utility, you could refuse to serve, hook up Negro homes with your electricity?

Mr. Ralph Moody: No sir, but I'm not conceding Mr. Justice Douglas that a café is a utility.

Justice William O. Douglas: Well, isn't that the basic question?

Mr. Ralph Moody: Well, I think it is.

I understand that in the Garner case and the concurring opinion --

Justice William O. Douglas: I don't see it --

Mr. Ralph Moody: -- you take the (Voice Overlap) --

Justice William O. Douglas: I don't see any greater invasion of this sacred property right you're talking about in the -- in this case and in the utility case.

Mr. Ralph Moody: Well, it's -- the -- my only view is that it's a part of a facet of economic life and its -- comes and goes it's not a public utility.

I think [Inaudible] man that operated any little hamburger shop would be greatly surprised to know that he was in a -- operating a public utility and --

Justice William O. Douglas: That his prices have often being fixed by Government, haven't they?

Mr. Ralph Moody: Yes sir.

They've been fixed by a Government but they have been fixed in stores except for the Fair Trade Acts where patented and proprietary things were concerned.

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: No, that's certain.

Justice Byron R. White: You don't suggest that the State without requiring [Inaudible]?

Mr. Ralph Moody: Well, I -- yes sir.

I --

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: I don't -- you mean by state statute?

Justice Byron R. White: Yes.

Mr. Ralph Moody: Well, I don't think so.

Justice Byron R. White: [Inaudible]

Mr. Ralph Moody: I don't think so.

They -- States did that in these cases in my brief in the Ice Company and Standard Oil and all those, and you gentlemen said, “Well, this -- because you (Inaudible) -- the State calls it that -- doesn't mean it is.

We decide independently whether it is or not.”

Justice Hugo L. Black: Which cases were those that you just --

Mr. Ralph Moody: Those are the --

Justice Hugo L. Black: -- we decided?

Mr. Ralph Moody: Yes sir.

Justice Hugo L. Black: Which case have we decided?

We -- who again now?

Mr. Ralph Moody: Oh, I'd -- I when I say you, I mean the whole court and its whole -- back of it and everything.

I didn't -- I don't say you decided that at this present court.

Justice Hugo L. Black: We decided Wickard versus Filburn too, didn't we?

Mr. Ralph Moody: Yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ralph Moody: It is sir.

Justice Arthur J. Goldberg: That has not been changed.

Mr. Ralph Moody: Ordinances that have not been changed.

Ordinances have --

Justice Arthur J. Goldberg: Having been required before the entire court to take notice at the moment.

Mr. Ralph Moody: They introduced it in evidence.

Justice Arthur J. Goldberg: Is that the only means [Inaudible] --

Mr. Ralph Moody: [Inaudible]

Justice Arthur J. Goldberg: -- whether or not judicial [Inaudible]

Mr. Ralph Moody: They introduced it in evidence and make it a part of the record.

Now, just why they take that view and what their motives are, judicial motives are, I don't know.

That is the fact and Mr. Greenberg had said so himself.

Chief Justice Earl Warren: Mr. Greenberg.

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: May it please the Court.

Concerning the Durham schools and school segregation, in North Carolina generally, I respectfully refer to the Court to the recently decided decision of the Fourth Circuit sitting en banc in Wheeler against the School Board of the City of Durham which case went on for a period of over three years until Judge Stanley was unanimously reversed and at this time, approximately 40 some odd children are being admitted to the Durham City schools.

Justice Hugo L. Black: Not by court order, is that --

Mr. Jack Greenberg: It was not by court order but the court order is on the way.

That's true that the court order has not yet -- there has not yet been a hearing on the order, but there has been a unanimous decision of the Fourth Circuit following three years of litigation during which they kept separate school zones and they still have them at this time so far as I know.

Secondly, the main point that I'm afraid that I got away from during the argument was that this is not a case involving redheads or Hatfields or McCoys.

This is a case involving the question of racial segregation and I would like just to read a few sentences from the conclusion of the Shelley opinion which I think is crucial here.

That is that the historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten.

Whatever else the framers sought to achieve, it is clear that the matter of primary concern with the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the states based on considerations of race or color.

75 years ago, this Court announced that the provisions of the amendment are to be construed with this fundamental purpose in mind.

And we submit as we did at the outset that there is more state action here than in Shelley and the state action bites more deeply.

Here the courts have not held themselves open to persons who have agreed to discriminate and said that we will implement your agreement.

Here, the State has taken an active initiative in prosecuting and trying these students and it threatens as I said to send to jail unless these judgments are reversed.

Shelley, I was said involved some sort of a two-party contract in which both parties agree but that is not so.

Shelley was a tripartite or there were more people involved.

Those covenanters were involved in the contract too and they had a property right too and their so-called property right was the right to insist upon racial discrimination on the part of the buyer and the seller.

And it was that that this Court held could not be enforced through the courts and to that extent, Shelley is similar to this and also the statute that supposedly was -- statute was involved in the Shelley speaks of personal property as well as real property as well.

There was a question about the innkeepers' law in North Carolina.

The law of innkeepers in North Carolina State -- in State against Steele at 106, 766 -- North Carolina 766 and racial discrimination is an exception to the innkeeper's rule.

An innkeeper can keep out a person on the grounds of race if he so desires. Guests of a hotel and travelers or other persons entering it with a bona fide intent of the coming guest cannot be lawfully prevented from going in or be put out by force and so from the so on, unless they be persons of bad or suspicious character or a vulgar habit are so objectionable to the patrons of the house on account of the race to which they belong and so forth.

Unknown Speaker: [Inaudible]

Mr. Jack Greenberg: State v. Steele, 106 North Carolina 766.

Chief Justice Earl Warren: What year was that in?

Mr. Jack Greenberg: Pardon me?

Chief Justice Earl Warren: What year was that in?

Mr. Jack Greenberg: 18 -- 1890 --

Unknown Speaker: I would like send a [Inaudible] to the clerk, North Carolina.

Mr. Jack Greenberg: There is a North Carolina statute and the North Carolina statute embodies the rule of State v. Steele which says that it shall apply to persons whom the innkeeper may accept as his guest in his inn or hotel.

And it is annotated -- that statute is annotated to State v. Steele obviously and he may -- need not accept persons on the grounds of race.

Unknown Speaker: There's no race in the statute.

Mr. Jack Greenberg: There's no race in the statute.

That's true, but the case says that he need not accept Negroes as guests.

And we respectfully submit to this Court that for the reasons we have given that this is a case in which there has been an arrest, a conviction.

The courts and police have acted.

This is something that bites deeper and harder than Shelley and there was all these additional state action that we've spoken about involved in the cases as well but for the reasons given, these convictions and the judgment below should be reversed.