DANIEL v. PAUL

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Case Basics

Docket No.

488

Petitioner

Daniel

Respondent

Paul

Decided By

Warren Court (1967-1969)

Opinion

395 U.S. 298 (1969)

Argued

March 24-25, 1969

Decided

Monday, June 2, 1969

Term:

1960-1969
- 1968

Facts of the Case

None

Question

None

Argument

Daniel v. Paul - Oral Argument

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Daniel v. Paul - Oral Argument, Part 1

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Daniel v. Paul - Oral Argument, Part 2

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Conclusion

Decision: 7 votes for Daniel, 1 vote(s) against
Legal provision: Civil Rights Act of 1964, Title II

None

Print this transcript Transcript:

Argument of James W. Gallman

Chief Justice Earl Warren: Doris Daniel and Rosaline Kyles, Petitioners, versus Euell Paul Jr., etcetera.

Mr. Gallman, you may continue with your argument.

Mr. James W. Gallman: Mr. Chief Justice and may it please the Court. Yesterday, we were discussing the Nixon Farm which under the calls was improved and became a more of a place of business as we've observed from the record.

The -- with the advent of the Civil Rights Act of 1964, the Paul chose to operate their establishment under the guise of the private club as this evidence from the record here.

This was rejected out of hand by the District Court and does not even a serious question in the District Court.

It does have one surprising effect of the case though that I think is followed it all the way through.

If we look at the record in the commencement of the case, we see that it counsel for the plaintiff or for Mrs. Daniel and Mrs. Kyles intended the trial based upon the private club exception of the 1964 Act.

Now, this fell flat a gain in point in this regard, and that after, I think the record reflects at adequate proof was not brought in concerning the connection of this business with the commerce so that the Act apply.

Now, the District Court in view that number one, that there was no coverage under the Act because this is not a place of entertainment.

It considered it a place of participation or exercise or such as that and not one where the one is entertained.

And it assumed that perhaps some of the items at the place of business had moved in interstate commerce.

Justice Potter Stewart: Mr. Gallman, do I understand that to be your position as amicus representing the position --

Mr. James W. Gallman: Yes.

Justice Potter Stewart: -- of respondent in this case that the private club exemption of the 1964 Act does not apply here.

Mr. James W. Gallman: That's correct.

Justice Potter Stewart: You -- that's how was a finding of the District Court affirmed by the Court of Appeals and made no confession at all that that planning is erroneous.

Mr. James W. Gallman: That's correct.

Justice Potter Stewart: So, that is out of this case.

Mr. James W. Gallman: I believe so.

There was further the question of what connection the so-called lunch stand, snack bar or what have you here had this -- with the establishment.

That is would it be come under 201 (b) (4) or 201 (b) (2) restaurant and cafeteria and lunch counters sold about so, principally it gave in selling food for consumption on the premises.

The lower court felt that this business of swimming and sun bathing and so on, and that the food that was strictly incidental and not a major enterprise of the business.

It also rejected the idea that there were two establishments here and so as to say that under subsection 4 that there was no covered establishment that would rankly entire establishment for that the cover of the Act.

When this case got to the Court of Appeals, the reasoning was the same.

There, the Court of Appeals looked at the two requirements or coverage under the '64 Act, namely the commerce connection or the offer to serve interstate travelers.

Now again, I'd advert to the fact the record below was not developed with respect to the offer to sell/serve interstate travelers.

There simply no questioning about it.

It is true that it could be inferred from the testimony of Mr. Paul that they would serve any white person without inquiring about their origin.

But there is no searching inquiry at all as to whether they would restrict their service to dam sealers of the area, that is would leave the interstate traveler go elsewhere.

This really is considering the geography of the matter, a remote and isolated lunch room if that's what we're talking about.

It's some 12 miles from the city.

It's hard to get to as I explained yesterday hard to find.

The Court of Appeals then approached it from the standpoint of what did the record show with respect to commerce, and I know that Court had in mind just as the Assistant Attorney General have here that common sense wise, the business must have some connection with interstate commerce.

But are we dealing with the question of whether there is sufficient connection in the area for Congress to legislate?

Are we dealing with the question of whether under the provisions of the Act, a substantial part of the food served at the lunch room which it serves as moot in interstate commerce?

Now, there were four items mentioned.

Hamburgers, hotdogs, softdrinks, and milk.

It's argued by petitioners here that three of the four items had interstate arguments.

There was no evidence about it.

The District Court without any evidentiary support at all said that he suppose that some of the ingredients for the hamburgers, I suppose the flour had interstate origin.

The drink I think he laid aside because of the legislative history of the Act indicating that it's the inquiry about the food, not about the drink.

He said that there's some of the ingredients obviously came from out of state I'm sure, as a matter of common knowledge, but it's not in the record.

I'm satisfied or I feel my common sense tells me that this establishment sold cigarettes, that it sold candy, that it sold some other items, gum, mints, item such as these, but it's not in the record.

As a matter of fact, the record indicates the absent.

So, I think this is what they get to when we look for coverage under the Act.

We find that it was thought of as a case where there would be a serious contest over private or public exemption, and then law and behold, that fell through.

And I've that the same experience myself that you think your case true, but did not go ahead and introduce a necessary evidence to show coverage under the Civil Rights Act of 1964.

Justice Potter Stewart: Does the record show what kind of beverages were sold, what were they softdrinks?

Mr. James W. Gallman: No.

Justice Potter Stewart: Doesn't show anything?

Mr. James W. Gallman: They were softdrinks.

I think it reflects that too.

Justice Potter Stewart: Didn't have a liquor license?

Mr. James W. Gallman: No.

No, there's no liquor --the -- it's indicated that no beer was sold.

Of course, Arkansas is a --

Justice Potter Stewart: More or less dry state is.

Mr. James W. Gallman: -- package type of state you cannot dispense liquor buy to drink.

But this place is always been noted for no alcoholic beverages of any kind.

So, the Court of Appeals approach is this.

Now, Judge Henny does dissented in the Court of Appeals.

He was quite so sure that Judge Mahaphy, the majority judge, was wrong about this lack of evidence concerning movement of the food in commerce.

He wanted to look at some Arkansas statutes that permitted or might be use to prevent so-called integration or admissions of Negroes to the so-called place.

As saying well, there is an ominous enforcement act in Arkansas that might be use to prevent this sort of thing so we can say that this practice, this discriminatory practice of the falls resulted from state action.

So, he but his disagreement only with this conclusion and contended of course all the while that there was sufficient evidence that interstate commerce had furnished the so-called lunch room.

Now, the other question I think it deserves comment here is the question of what about this place of entertainment?

Basically, this is a participant type amusement park, if we could call it that.

I'd rather call it the farm but the record doesn't reflect that.

But it doesn't have rights, it doesn't have the things that you had in the Fifth Circuit case of milk, where you have 11 or 12 complicated rights manufactured out of state and brought in without any question.

Here, our record concerning the equipment used for boating and boating only that the evidence do is not clear is to where that came from.

Now, there is some indication that they have about a dozen boats that called puddle boats.

I don't know what they are exactly, except I think of a kind where children get only have some wheels, some pedals, they push and the puddle in the rear of the boat makes it go.

Now, I think that's what it is and I'm not sure they have yatch whatever that is.

Now, this is a very minor part of the activities as I understand the record.

It suggested that these where perhaps purchased out of state.

Judge Mahaphy in his opinion said that it was common knowledge, boats was made in Arkansas.

There was a reference to an Oklahoma boat company to whom the Paul's paid a royalty.

But it is not clear whether if one ends in -- at one point, the question is from whom did you purchase the boats or did you purchase a yatch?

They say the same company, meaning the same company to whom the pay the royalties.

But there's not testimony about rather boats was made, where the sale was made, where the boat came from, did it come from Oklahoma and Arkansas, there's nothing about it.

Now, assume that the briefs that this indicate some interstate contact with reference to that and for that reason, we ought to say that the entertainment here, these boats, move in commerce, and that therefore, this activity ought to be a covered under subsubsection 4 of the Act of two or one of the Act.

We suggest that it's not anywhere near like the Miller case that Judge Mahaphy in his opinion was correct that the evidence concerning movement with reference to amusement and entertainment movement in interstate commerce is not there.

Now, the Court of Appeals did not have authority and has not have a possibility of drilling on the applicability of the Title 42 Section 1981 and 1982.

Justice Thurgood Marshall: What about the jukeboxes Mr. Gallman?

Mr. James W. Gallman: A -- Again, Mr. Paul was asked where was the jukebox made and he said, “I don't know.”

I think the testimony into that.

Justice Thurgood Marshall: But when you assume that it's a possibility that one of the records in that jukebox came in interstate commerce?

Mr. James W. Gallman: In my common knowledge, I know that everyone of them perhaps came through interstate commerce and I know the jukeboxes made elsewhere.

I don't have any doubt about it.

I think that's true.

I think --

Justice Hugo L. Black: What where they used for it?

Mr. James W. Gallman: The jukebox to play and listen to I suppose.

Justice Hugo L. Black: Where there any dancing then?

Mr. James W. Gallman: Yes, sir.

On a Friday night perhaps a Saturday night between the last day of May and perhaps Labor Day or one of those two nights, the establishment would have a dance.

The testimony is that a local band would play for that dance and we would not have entertainers who has move from another state to Arkansas to present the performers.

These were so-called amateurs or local musicians.

Of course, if you want to know what I know about, that would say that the jukebox played in intermission when the band quit.

But that's not in the record.

Justice Thurgood Marshall: Where was the dance held?

Mr. James W. Gallman: I believe they have a pavilion Your Honor that -- I would judge what it would put in, something of that sort.

Justice Thurgood Marshall: And you said yesterday, the only building was the lunch counter or I didn't I understand you correctly?

Mr. James W. Gallman: No.

I didn't mean to say that.

There is a dressing room next to it there's a lunch counter.

As I recall when the Paul's came in, they put some more drafts down the edge of this little lake in the shallow water, and down there, erected a floor, an outdoor type cover where this dancing took place.

Justice Thurgood Marshall: For the purpose of entertainment --

Mr. James W. Gallman: Well --

Justice Thurgood Marshall: -- admittedly so.

Mr. James W. Gallman: -- I think the people danced.

I think the record shows that two nights a week events.

I think the contention was that it wasn't for watching others dance, it was for people to dance now.

I would --

Justice Byron R. White: So, you do raise a question of the outset about whether this is a place of entertainment at all --

Mr. James W. Gallman: Yes.

Justice Byron R. White: -- by the Act.

Mr. James W. Gallman: The District Court did and I think the Court of Appeals said perhaps this but still we don't have any interstate connection as where you know --

Justice Byron R. White: Yes.

But what's your position?

Mr. James W. Gallman: What is mine?

I have to agree with the Court of Appeals that the evidence --

Justice Byron R. White: It wasn't place of entertainment or you or do you --

Mr. James W. Gallman: Well, I think we can assemble some place of entertainment and then, look for the necessary connection as acquired by 201 (b) (4) or (3), excuse me.

Now, it's --

Justice Hugo L. Black: Does he knew --

Mr. James W. Gallman: -- well, I might refer to this, the reference to excise taxes for example where the cabaret tax applied to a 20% tax, we used to have.

Justice Hugo L. Black: But there no evidence whatever as to the -- what music was furnished for the dancing?

Mr. James W. Gallman: They referred to the names of the band Your Honor as the Jinx, Pacers, names of this sort.

I took it from those names that it would be rock and roll music.

Justice Hugo L. Black: And no evidence about the jukeboxes playing at all?

Mr. James W. Gallman: No, sir.

To return to the question of Mr. Justice White, the cabaret tax was applied and it speaks of entertainment was applied to places where a jukebox furnished the music for dancing.

And there was no performance as such and those cases do exist that I know of.

As I've said, the question of the application of the 1981 was not before the Court of Appeals.

It appears in the language brought enough to prohibit all discriminatory contract, all discriminatory action concerning contracts.

The Government I think raises some very searching questions in its brief concerning the impediments that might exist to holding that 1981 or Section 1 of the 1866 Act, might it itself be sufficient here.

I noticed that they caution the Court that perhaps this should be characterized here as a sort of public contract and that the 1866 Act if it has liability ought to be looked at as referring to so-called public title contract.

Justice Potter Stewart: Did I -- excuse me.

Justice Thurgood Marshall: Direct the attention to page 29, Mr. Paul said there were two jukeboxes and I mean persons who put their nickels and dimes at any time during the day to get music and dance or whatever they want to do and answer, “Yes”, right?

That was Mr. Paul himself.

Mr. James W. Gallman: Sir.

Justice Thurgood Marshall: Mr.Paul himself said there were two jukeboxes and they were constantly going.

Mr. James W. Gallman: Oh, yes Your Honor.

I knew that the Court understand to say there were not jukeboxes there.

Justice Thurgood Marshall: No.

But this because I understand this, it says that.

One, there were two jukeboxes.

Two, they were used all during the day and night and they were used for the purpose of people dancing or whatever else they wanted to do, which I would submit could be entertainment, couldn't it?

Mr. James W. Gallman: Oh, yes.

I believe it, it could be it.

Chief Justice Earl Warren: And they did have a dance permit the day for that?

Mr. James W. Gallman: This without the country you wouldn't need a permit for the dancing.

Chief Justice Earl Warren: I -- I say -- I thought you said they have some kind of a permit to as I mistaken in that?

Mr. James W. Gallman: No, Your Honor.

I didn't mean to --

Chief Justice Earl Warren: I guess, I mistaken.

Mr. James W. Gallman: And I know they had no permit.

They got no license.

I think they did have a periodic inspection by the health department that I point yesterday this post the problem because sometimes, their water didn't -- water supply wasn't sufficient to keep the pool there clean, it couldn't be chlorinated.

So, there is one point I must raise and I may have been missed in this Your Honors.

The -- I had assumed when I was invited to appear here that it was perfectly evident that the reason because where not in the case was that they have disposed of this property.

I found that though arriving here and checking the opposing counsel that they were under the apprehension that the Paul's in fact still own the property but it is my information that they do not.

That they dispose of it September 26, 1968 through a sale, that they reserve 2.75 acres namely the tree home sites own this property for themselves but otherwise disposed of the property.

Now, I give that to you because I think you ought to know.

Justice Hugo L. Black: You got this -- as far as I could -- I can't speak for my --

Justice Potter Stewart: I can't speak for my colleagues, but so far as I'm concern, this is news to me.

It's just suggestion that this moots the case or?

Mr. James W. Gallman: Well, it suggests from either we might have some effect on that area.

I do not know what the plans or the new orders are, if they intend operate it perfectly.

I can see utility in there in the city.

Justice Potter Stewart: You know who the purchaser was?

Mr. James W. Gallman: Yes, it's a group of 10 individuals.

They -- I'm told that they have a connection with a church.

I believe they form a private corporation to acquire this.

They call it the Lake Nixon Incorporated and that's as much as I know.

Chief Justice Earl Warren: Mr. Gallman, I -- my recollection of it is that we were either told or at least it was our understanding that Mr. Paul said that he just didn't want to pursue it any farther and if the court ruled against him, why he just closed it up.

Mr. James W. Gallman: Yes.

Chief Justice Earl Warren: I think that's what you're told from -- when we took the case and that's -- that's why we asked you to serve.

And incidentally Mr. Gallman, I want to say that the Court appreciates your -- in willing to take this assignment from us because otherwise, we would have just one side of the case for it.

Mr. James W. Gallman: Thank you Your Honor, it's a pleasure to be --

Chief Justice Earl Warren: -- also we deeply appreciated.

Mr. Harper?

Argument of Conrad K. Harper

Mr. Conrad K. Harper: Mr. Chief Justice and may it please Court.

With reference to Mr. Gallman's last point concerning the disposition of the Lake Nixon property.

Rumor came to our attention sometime in December after this Court had granted certiorari that the property had been disposed of.

Where upon I call the former attorney for the Paul, Mr. Robinson, I believe his name was.

He indicated he was not then their attorney, he's understanding was that they did not wish to pursue this case.

However, he recommended and since he didn't know anything more, I might talk with Mrs. Paul and Mr. Paul.

So, I took this extraordinary step of calling Mrs. Paul directly and asked her whether she had in fact disposed of the property.

Her answer was “no”, that the thought it was under contract but the deal had not been consummated.

And that is as much of I know and that was of as of late December, 1968.

With reference to the other principal question, I'd like address myself to now, that is the food that was served at Lake Nixon.

I think it's efficient for this Court if it wishes to --

Chief Justice Earl Warren: Would you speak a little a louder --

Mr. Conrad K. Harper: I'm sorry.

Chief Justice Earl Warren: Mr. --

Mr. Conrad K. Harper: I think it is sufficient for this Court if it wishes to undertake to look at this case the way it look to the case as Hamm versus Rock Hill.

There, there was no evidence as to the origin of the food involved and yet, this Court in a divided opinion or a divided court undertook to say that the facilities in Hamm as well as a companion case where in fact opened to the public.

They were located neither or five and dime in South Carolina or department store in Arkansas.

And that was sufficient that court felt to demonstrate that in the ordinary course interstate connections could be shown as to the origin of the food.

We think that situation is particularly at here because the District Court seating at Little Rock very close to Lake Nixon undertook to say that as far as he was concerned, there was sufficient -- a connection with interstate commerce to demonstrate that some of the food at least had originated outside the state.

Therefore, our position of course is the case is not moot and the complaint I might mention inclusion, those run against successors in addition to the Paul's, who believe that might get situation here.

I have no further comments unless the Court has some questions.

Justice Hugo L. Black: Did the district judges conclusion that it was -- did involve interstate commerce to allow evidence under to rely on common knowledge?

Mr. Conrad K. Harper: With reference to the food, there was no evidence, what the court found was that some of the ingredients in the bread had originated outside of the state as far as he was concern, and that ingredients in the softdrinks are similarly originated outside of the state.

But there was no testimony with reference --

Justice Hugo L. Black: Now, which ingredients?

Mr. Conrad K. Harper: He did not specify which ingredients.

Although, I might indicate that on file with the court are some 20 photographs of Lake Nixon.

Some of which show Coca-Cola signs and it may have been had that in mind when he said some of the ingredients of softdrinks originate outside of Arkansas.

Thank you.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript:

Argument of Conrad K. Harper

Chief Justice Earl Warren: Number 488, Doris Daniel and Rosalyn Kyles, Petitioners, versus Euell Paul Jr., etcetera.

Unknown Speaker: May it please the Court.

I move the admission of Mr. Conrad K. Harper of New York for the purpose of arguing in this case.

I'm satisfied, he has the necessary qualification.

Chief Justice Earl Warren: Motion is granted.

Mr. Harper?

Mr. Conrad K. Harper: Mr. Chief Justice and may it please the Court.

This case concerns two black ladies who were refuse service at the recreational facility called Lake Nixon Club located just outside the Little Rock, Arkansas.

The respondents are the owners of Lake Nixon Club, Mr. and Mrs. Paul.

Following the refusal of that facility to serve, the petitioners, black ladies, they brought class action in a District Court sitting in Little Rock for injunction -- injunctive relief.

The District Court following that trial held that Lake Nixon was not a facility subject to Title II of the 1964 Civil Rights Act.

Specifically holding that the food facilities at Lake Nixon were no embraced within the statute and also that Lake Nixon was not a place of entertainment or exhibition within the ambit of the statute.

The District Court hold also summarily rejected the claim made by respondents below that Lake Nixon Club was a bonafide private club.

On appeal, the Eighth Circuit affirmed on all grounds with one judge dissenting.

This Court grant a certiorari not only to determine questions relating to cover John to Title II of the 1964 Act, but additionally, on the question whether the 1866 Civil Rights Act now portionally cutified as 42 U.S.C. Sections 1981 and 1982 acted to bar discrimination in this facility.

The petitioners make two -- I should say three principal arguments.

First, that Lake Nixon food facilities where such as to bring the whole of Lake Nixon within the ambit of Title II, second, that Lake Nixon in its entire tables of place of entertainment or exhibition within the terms of Title II, and thirdly, that 1981 and 1982 insofar as a granted an equal right to contract and have an interest in property, granted petitioners the right to have access to Lake Nixon.

The facts in this case are relatively simple and not in dispute.

Lake Nixon is a 232-acre site located not far from the Lit Rock, Arkansas which has facilities for boating and swimming and picnicking and miniature golf.

It also has a snack bar which serves sandwiches and softdrinks and milk, and it also has in that snack bar a jukebox.

Lake Nixon also advertises its facility.

Specifically, the record shows that during its normal season which runs from May until September of every year, Lake Nixon ran in 1966, three advertisements every week on a radio station Little Rock as well as utilized the facilities of another Little Rock radio station for similar kind of announcement.

Those announcements incidentally, the record reflects were addressed to all members of Lake Nixon, and one could purchase on membership so-called in this facilities simply by paying a quarter for each season.

Lake Nixon also advertise --

Chief Justice Earl Warren: A quarter for each time they come there, each time they -- with just a quarter for --

Mr. Conrad K. Harper: Quarter for the entire season Your Honor; in other words, for May until September.

And after obtaining this admission card, one then had to pay an additional money if he wanted to buy something at snack bar, but he might not pay anything if you want simply to get picnicking or swimming.

Lake Nixon also advertise its facilities in a magazine distributed locally showing facilities open called Little Rock Today, that was done once the record shows in 1966, and also once in 1966 Lake Nixon distributed an advertisement in a publication which was distributed at the air force base located in Jacksonville, Arkansas.

Justice Potter Stewart: Are those advertisements in the appendix, the text to the advertisement?

Mr. Conrad K. Harper: No Your Honor.

What is on file for the court but not printed is a copy of a radio copy used in the radio announcements.

The announcements with reference to the magazines are not printed in the appendix or not a part of the record in this case, simply testimony that such will run.

Justice Potter Stewart: Does the record indicate whether or not those ads, the one in the military magazine, the publication and the one in the publication distributed by the Chamber of Commerce or it was in the hotels where also purportedly addressed at quote “members”?

Mr. Conrad K. Harper: There's not specific testimony on that, what there is it's a general statement by Mr. Paul as I recall which says that all advertisements are addressed to all members of Lake Nixon.

Now, Title II has a comprehensive scheme for coverage of public accommodations as defined, specifically with regard to the food facilities.

It says that a food facility maybe covered if it serves or offers to serve in a state travelers or a substantial portion of the food which it serves move in commerce.

The evidence shows here as we've just been talking that Lake Nixon during 1966 advertised its facilities and the evidence fairly show -- also shows that Lake Nixon was opened to the general white public.

Having advertised its facilities to the public and general, it seems clear to us that Lake Nixon was in fact offering it services to members of the interstate public, and therefore for purposes of Title II, Lake Nixon's food facilities were opened to persons in the general public.

That being so that statute then provides that all other facilities which are opened to the people patronizing the food facility are opened pursuant to Title II.

The District Court took a different view in this particular question.

The District Court found that there had been no offer to serve interstate travelers as such.

We believe that's a misconstruction of the statute.

Congress had in mind simply an offer to serve people in general and if there were not any evidence of a prohibition on interstate travelers or in this case, no inquiry even as to where people came from.

Indeed, Mr. Paul didn't even know how many members there were, although he estimated about a 100,000.

We think that sufficient to bring this lunch counter, and therefore the hold of Lake Nixon in the ambit of the statute.

Also with regard to food facilities, there is the test that a substantial portion of the food moved in commerce.

The evidence on this issue was simply that Lake Nixon and its snack bar serve hamburgers, hotdogs, softdrinks and milk.

The District Court made a specific finding that the ingredients used in the softdrinks and ingredients used in the bread were such as at moved in interstate commerce.

However, he deemed that insufficient for coverage under Title II.

The Eighth Circuit not disturbing that finding made an additional finding that in its view, the milk at least was locally produced.

We submit that since Lake Nixon sole only four principal items, three of which, that is the hamburgers, hotdogs and softdrinks contained out of state ingredients.

This was sufficient to meet any kind of reasonable substantiality test, and therefore, Lake Nixon as a whole was covered by Title II.

The District Court took the view that that was not the case and the Eighth Circuit similarly took a view.

In part, said that District Court, Lake Nixon was a whole facility, not principally engage in selling food for consumption on the premises.

We of course disagree with that on the grounds that Lake Nixon's snack bar at least principally was engaged in serving food for consumption on that premises, and therefore the hold of Lake Nixon was covered.

An additional ground of Title II is the claim that Lake Nixon was an entertainment or -- a facility or place engaged in giving exhibitions.

We specifically note here that the jukeboxes were found by the District Court to have been acquired for outside State of Arkansas.

That being the case, it seems to us the jukeboxes nationally source of entertainment for persons who may listen or perhaps dance to it, and therefore, this was sufficient for purposes of coverage to say that Lake Nixon was placed, that had entertainment or exhibitions, which in moved in commerce.

Additionally however, the evidence shows that Lake Nixon had so-called surf boards or yachts which were purchased from an Oklahoma company.

And furthermore that from the same Oklahoma company, Lake Nixon had least certain paddle boats.

We think this is sufficient again to show that Lake Nixon's sources of entertainment had affected commerce, and therefore, Lake Nixon as a whole was subject to the ambit or Title II.

And what we've mentioned here as another and further ground for showing that Lake Nixon was a place of entertainment or exhibition, that local people might well come there to be entertained either by their family or by their friends or exhibiting their prows in any given area of Lake Nixon's facilities.

For the Fifth Circuit seating on bunk in the Miller case, this kind of activity was sufficient to define a place of entertainment and we submit the same was true here.

Justice Potter Stewart: Wasn't there a -- it didn't -- on the advertisements indicate there an orchestra there, music --

Mr. Conrad K. Harper: That --

Justice Potter Stewart: -- at least on the weekends?

Mr. Conrad K. Harper: That's right.

Dances were given every Friday or Saturday at Lake Nixon.

The evidence however does show further that the musicians who played live at those dances apparently were only from Pulaski County, and therefore, were not in commerce within the meaning of the statute.

Justice Potter Stewart: No, I'm just thinking about whether or not it was place an entertainment, I --

Mr. Conrad K. Harper: Oh, yes.

We certainly ask some additional source for showing a place of entertainment.

That being so with regard to Title II, we turn into possible coverage under the 1866 Civil Rights Act.

1981 was specifically pleaded in this case in the complaint, now that the courts below passed upon it because this Court's decision in Jones versus Meyer Company did was not handed down to that of the Eighth Circuit denied rehearing in this case.

We think it manifest that this was an ordinary kind of contractual arrangement, one paid money and in return had the option for bailing himself of services located at Lake Nixon, and the evidence is uncontroverted that the petitioners in this case were denied that right, that contractual right if you will on the grounds have raise.

We think nothing could be clearer as violative in 1981.

With regards to 1982 which provides for equal property rights and no denial thereof on ground of raise, we think could clear also that what really was involved here was, one, have the opportunity to use the property of Lake Nixon, either its jukeboxes or its miniature golf or its swimming facilities, and therefore, the rational of the Jones case would indicated that this kind of property should not be denied to persons on grounds or breaks.

Justice Potter Stewart: 1982 is not they relied on in the pleadings, wasn't it?

Mr. Conrad K. Harper: That's right, it was not pleaded below and none of the courts below ruled upon the issue.

However, this Court granted certiorari and we think that there's ample authority for this Court to dispose of the case on that ground if it wishes.

Justice Byron R. White: Well, it would be enough I suppose to get your result just to claim that you had that negroes had the right to buy a food in this refreshment stand.

Mr. Conrad K. Harper: Under Title II you mean or under 1981?

Justice Byron R. White: 1981.

Mr. Conrad K. Harper: Oh yes, or any of the facilities, but that's true.

Justice Byron R. White: At least you have the right to buy personal property right there, the other people.

Mr. Conrad K. Harper: That's right, that's our position.

Justice Byron R. White: And you also think you have -- under that statute, you have the right to buy whatever it is you can sell --

Mr. Conrad K. Harper: Which open to the general public, except Negroes, that's right.

There are no further questions, I shall reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Leonard?

Argument of Jerris Leonard

Mr. Jerris Leonard: Mr. Chief Justice and may it please the Court.

I suppose that the first question that would come to anyone's mind in our appearance here is why the central Government should be interested in the case which might appeared be of relatively minor importance.

May well be that on the facts as such it is that there are three very important reasons why the federal Government is concerned about not only the issues in this case but the case itself.

First of all, Little Rock, Arkansas has an air force base located there in which there are some 15,000 military civilian personnel and the dependence of those people.

In a county, the size of Pulaski County which is roughly 285,000 according to the census figures, this is a rather substantial population and it gives to the federal Government or rather substantial interest in seeing to it that the people at work for the federal Government are in fact recorded all of their due according to federal law if in fact federal law applied.

So, we have that kind of an interest in our employees.

Secondly, Title II specifically Section 204 of the Act of '64 gives some unusual obligations to the Attorney General with respect to the question of public accommodations.

And we are therefore interested in the case because of that admonition in Title II.

And thirdly, we are concerned and interested because we believe that the principal in this case is one on which we would like to have some settlement, some opinion, a decision by this Court so that we will get some guide to future action in this kind of case.

We feel very strongly that our nation has made and is making great progress and the area of bringing equal voting, equal employment, equal housing, and other equal opportunities to our Negro citizens.

Negroes in greater numbers than ever before, all be it.

There are still too few in number are beginning to share the fruits of our free economy.

But first class citizenship doesn't mean just a good job or the right to votes or sending your youngster to a desegregated school.

We think that first class citizenship means much more than that.

It means the sharing of in all the fruits of our free society.

It means taking mama out to dinner on Sunday and be able to seat in any place in the restaurant, or go to any restaurant, or taking the kids for a swim on a hot Sunday, or taking your daughter out to begin the teacher the basics of golf at the Lake Nixon miniature golf course.

So, from the philosophical point of view, we have a very deep interest in what the court decides in this particular case.

Let me just briefly analyze what our feeling is with respect to the opinions below.

The District Court we feel got hang up so to speak on the issue of a single enterprise.

The fact that these were not the enterprises at the Lake Nixon were not separate units that the snack bar was not owned by someone else, the swimming facilities and so on.

We would submit to the court that that's immaterial to the customer.

He doesn't care whether one person owns all the facilities or whether a group of people own each one of the separate and individual facilities.

And that further that that concept, it finds no rational basis in Section 201 of the Act.

There's nothing in there that indicates that Congress said that intent, and if did, it could have put some verbiage in it which would a very easily delineated that intention such as principally engaged in this or under separate ownership or some verbiage that would have given a clue that one could come to the kind of conclusion that the District Court came to.

And thus, we feel the District Court was an error in a way it apply the law to these particular facts.

The circuit Court of Appeals, it used the hook that there was no effect on interstate commerce.

Well, I would submit to the Court that this runs contrary to common knowledge and common understanding.

Little Rock, Arkansas is not a sleepy little hamlet back out in the woods some place.

It has a major military installation in, it is the hub of a great state, it is on traffic routes, both north and south and east and west, so it isn't very back in the woods.

And the issue whether is whether or not there was an offer to serve, any of these facilities assuming that they are covered under the provisions of Section 201 (b), but the circuit Court of Appeals took to view that it wasn't like consider that question because it did not feel there was any effect on commerce and that it labored over the issue of what percentage of the ingredients in the food or the soda water, whatever else might come on -- might have come to Lake Nixon under pursuant to interstate commerce.

We would ask the Court to reject that idea.

There's ample evidence.

This Court can used its knowledge, its common sense, things that are of common knowledge to come to a very ready conclusion that advertising three nights a week on the radio station in Little Rock, Arkansas with 15,000 people just that the military installation alone plus the travels that there were bound to be people who were attracted by the ad.

Common knowledge also would tell you that a family staying in a motel might well ask the motel proprietor whether or not his motel has any arrangement with Lake Nixon to use its facilities and certainly it became knowledge, common knowledge are on the air force base that trans inter, if you are white, you could use the facilities at Lake Nixon, but if you were black, you couldn't.

And I submit to this Court that now, common knowledge tells us that there were -- that most of the people who were at Little Rock Air Force Base were transits, not in the sense that they were there for a few days, but in the sense that they were residence of another state.

And they are just as much in interstate commerce as are the people who are driving through -- the truck driver, the family on vacation; the salesman would have not, and they are entitled just as much for the protection of the law and the constitution.

Now, then, let's get to the more difficult issue, the issue of whether or not we can in fact find coverage in Section (b) in either three under the entertainment and exhibition provision, or under four as what I term a combine enterprise.

I believe this Court can find justification in this case under both these theories, and I would urge the court to consider the possibility of finding its decision on both of these theories because both will then become useful.

Look at the decisions in the Evans case which the circuit Court of Appeals below used to rule against the plaintiffs.

I would point out to you that the Evans case, that Fazzio, that the Miller case are amusement cases and what they in effect say is that Congress wanted -- enacted this section and use that particular as specific verbiage in 201 (b) (3), or other place of exhibition or entertainment meant that a roller-skating ring was a place of entertainment, that a bowling alley was a place of entertainment, that a golf course was a place of entertainment, and when one looks at the Evans decision particularly, the District Court said, I find that because that this is a place of entertainment and that because a team comes once a year from Washington D.C. to Virginia to play golf, that that brought it within the per view of the Act.

What I say that the District Court was really saying and really doing was saying that a golf course is a place of entertainment because it seems to me not logical to assume that there's going to be very many people who come to watch an amateur golf team play the -- its counterpart from the rural golf club.

That's not going to attract any droves unto any of the fairways except maybe some of their friends who may be waiting at the 18th hole.

So I say that that's not an exhibition in the term that we ordinarily think of a football game, a basket game and the like.

And that Section 201 (b) (3) specifically assumed and those cases clearly indicate this kind of entertainment, entertainment one gets out or participate as suppose to exhibit.

I will urge the court to consider also finding that the provisions o 201 (b) (4), the combined establishment theory clearly apply here.

The Congress could have used different verbiage if it didn't mean that you have one of the facilities that are covered under two in four, the whole thing is covered, and that make sense.

I think that's reasonable to believe that Congress wanted to do that, at least say a whole line of cases whether it be department stores or bowling alleys or what it is.

So on that theory also, we believe that there is coverage.

Mr. Harper went into the issue of the coverage under the 1866 Act, we should -- would simply urge the court to consider that as --

Justice Byron R. White: (Voice Overlap) make the same argument that there was just a vending machine there, vending candy bars.

Mr. Jerris Leonard: Well, I don't see Your Honor how you make a contract with the vending machine, the way you do with a -- the way you do with somebody selling hotdogs or --

Justice Byron R. White: I know but (Voice Overlap) --

Justice William O. Douglas: Suppose you don't get you dime back.

Mr. Jerris Leonard: Well, I suppose they have a right to sue.

Justice Byron R. White: But you think the volume of merchandise of the lunch counter sole is wholly irrelevant issue?

Mr. Jerris Leonard: I think it's an either or a situation --

Justice Byron R. White: (Voice Overlap) consider enterprise of --

Mr. Jerris Leonard: It's irrelevant where (Voice Overlap) to serve.

Justice Byron R. White: -- instead of solve the 100 to 1% of the total gross when you still make this argument.

Mr. Jerris Leonard: Yes, I would because you either have to sell merchandise which move in interstate commerce so you have to serve people.

Justice Byron R. White: Well, this was a theory that lower court wasn't it that the eating establishment didn't really amount too much in terms of the overall gross as it?

Mr. Jerris Leonard: The overall gross was 23%, but the District Court did not attempt to find nor was there evidence offered at District Court at level with respect to what percentage of that actually move in interstate commerce.

Justice Byron R. White: I know, I'm thinking about -- didn't make a point that the eating establishment really didn't wasn't very important in terms of the overall operation --

Mr. Jerris Leonard: If Your Honor please, I'd like to point out two important statements that the trial court judge said that this was a necessary adjunct to this business.

Mr. Paul himself testified at page 85 of the appendix -- no, I'm sorry, it's in the District Court record.

He said that this -- that the lunch counter was a necessity.

Now, what -- there was --

Justice Byron R. White: Did the Court of Appeals say this was a covered establishment under Section 4?

Mr. Jerris Leonard: The Court of Appeals didn't answer that question because they simply said there was, it had no affect on commerce, it did not offer a serve interstate travelers, and therefore, it wasn't necessary to decide whether --

Justice Byron R. White: How about the District Court?

Mr. Jerris Leonard: District Court said that it was not a covered establishment under either category three or four, or category two.

The lunch counter itself was not covered, so it never got to the issue of whether or not there was an effect in interstate commerce, but it said, the District Court said let us recall that -- that it is of -- at page 57 of course, it is probably true that some out of state people spending time in and around Little Rock have utilized one or both facilities.

I think that combined with the air force base, combined for that the nature of Little Rock, the nature of the advertising, and by the way, I'd like to just close on that point.

The court if anything should use the air that seems to me against the defendant because of the fact that they had the audacity to advertise this member situation knowing full well it was a sham.

It was arouse and a sham and they admitted under oath that it was arouse and a sham.

They didn't put it into effect until after the time the '64 Act came into be.

Thank you Your Honor.

Chief Justice Earl Warren: Mr. Gallman?

Argument of James W. Gallman

Mr. James W. Gallman: Mr. Chief Justice and may it please the Court.

Lake Nixon used to be called the Nixon Farm.

It's 223 acres, mostly of hillside.

You get to it by following a street called 12th Street at Little Rock which becomes a country road, pave and at a point if you know exactly of where it is, you can turn right without a help of a sign, you can climb a steep hill and you can come down and you can find Lake Nixon.

The 232 acres as I say --

Justice Hugo L. Black: (Voice Overlap) to the lake Mr. Gallman?

Mr. James W. Gallman: Sir, (Voice Overlap) no sir.

It's made by a dam put in a small creek which doesn't run the year around and the road way, traverses the top of the dam.

And this is how you arrive at the Nixon Farm.

Justice Potter Stewart: There's no sign on the --

Mr. James W. Gallman: Not on the highway.

Justice Potter Stewart: -- on the highway.

Mr. James W. Gallman: There is a way to come in from the back and perhaps that road is paved now.

The last time I was there, you could not get in from the rear, that is from the west and north because the road was too rocky and it would -- you just couldn't be sure you make it.

Now, this mere little valley two hills comes down to the small lake which I would guess the swimming area is perhaps two acres.

I wouldn't stick with that, but it is a relatively small area.

There are some shallow back water to the south and west from the where the creek comes that has -- now, it is usually kind of green and lousy and not attractive.

And after you go over, after you come in on the dam, you can turn right and go out to what's about authority or 50-acre pasture I would guess where Mr. Nixon used to keep his cows and where I used to shoot birds.

Now, Mr. Nixon disposed of this I learn from the record about 1962.

Since then, it's been operated by Mr. and Mrs. Paul.

If as I say is a shallow little lake, it has a place where you drafts rather small little building.

This lunch counter or dining room we're talking about is I guess 8 by 12 feet perhaps.

It has -- I've never seen the miniature golf course if they have that, and I assume it does.

But mostly, there is a little spit of land that runs out into these 2 acres of water on which people sung and from which they can top off and get wet.

Now, except near the dam, the water is not to my knowledge over your head.

As I say it is a shallow lake, it's particularly unattractive in the late summer because of health reasons and because of lack of fresh water coming into it.

Justice Abe Fortas: Is there any estimate of how many people go there during the --

Mr. James W. Gallman: The record says a 100,000 which surprises me.

I haven't seen it since the Paul's have had it.

Justice Abe Fortas: How to get there in there, by helicopter?

Mr. James W. Gallman: They sure would have to come in there bumper to bumper because I'd been in there I think in the years in the five months time.

It only operates from sometime in May until school starts about Labor Day of that thing.

I think what we're dealing with here is an incidentally, I have little apprehension that Little Rock Air Force Base would find this place, I don't think they could.

First place is 15 miles in the city limits of Little Rock, you go through Little Rock and then you go northwest of Little Rock some 15 miles further to get to the Little Rock Air Force Base which should make somewhere near 45 to 50 miles before you get from the air force base to this little farm.

Justice Potter Stewart: It was advertised in the publication over there.

Mr. James W. Gallman: I understand that from the record that it appeared at least in once a year in the air force magazine at the -- or the newspaper at the air base.

I understand it appeared once in Little Rock Today, I understand --

Justice Thurgood Marshall: What the Negroes on 9th Street, they don't know where he talks to you, don't they?

Mr. James W. Gallman: Yes sir, they do.

Justice Thurgood Marshall: They can find their way.

Mr. James W. Gallman: I believe they could.

I didn't say they could.

Chief Justice Earl Warren: We'll recess now Mr. Gallman.