Imágenes de páginas
PDF
EPUB

that, under the Interstate Commerce Act and the Motor Carrier Act, it has a precedent.

Senator ERVIN. When you are talking about the Interstate Commerce Act, you are talking about instrumentalities of interstate commerce, such as trains and busses which travel from one State to another, and of course, Congress has the power to regulate interstate travel. That is not what this bill tries to do.

Attorney General KENNEDY. That is not the complete situation. Certainly restaurants are covered, too, are they not?

Senator ERVIN. Only in case those restaurants are operated as a part of the apparatus of the interstate commerce.

Attorney General KENNEDY. But, Senator, restaurants are covered, are they not?

Senator ERVIN. This is true only in case of restaurants which constitute a part of the apparatus of interstate commerce. To be sure, if a railroad which is transporting interstate passengers maintains a restaurant for the purpose of facilitating its transportation of such passengers, its conduct in so doing is subject to congressional regulation. This is true because the restaurant in such case is an instrumentality of interstate commerce like the train which actually hauls the passengers from one State to the other. But this is not what this bill attempts to do.

Attorney General KENNEDY. But, Senator, the restaurants are covered under the ICC and under the Motor Carrier Act.

Senator ERVIN. Yes; but they are covered because they are a part of the railroad or bus line, which are engaged in running vehicles for the purpose of transporting persons in interstate

commerce.

Attorney General KENNEDY. Therefore, Senator, it affects persons, individuals; and Congress has had the authority to pass it; and the court has upheld that right. You wanted some precedents for this kind of action, and I have given them to you.

The individuals who are traveling in interstate commerce, on trains or busses, stop and want to go to a restaurant connected with the bus or railroad station. They can not be discriminated against. Now we are saying also that other restaurants which have an effect on interstate commerce should be covered. That is why I wanted to explain to you what the effect has been on interstate commerce of this kind of discrimination.

Senator ERVIN. The connection with interstate commerce under (i) would be that interstate travelers may stop and interrupt their interstate travel to get meals. The food they eat does not have to move in interstate commerce under this. If Congress can regulate the furnishing of services, the sale of goods, and the operation of places of public accommodation on the basis set out on lines 14 to 17 of page 14, then all Congress could get some people traveling in interstate commerce to go around and deal with everybody. Then Congress could regulate everything.

Attorney General KENNEDY. Oh, no.

Senator ERVIN. Oh, yes.

Attorney General KENNEDY. I don't believe that, Senator. That is why I think it would be important if I could explain to you the effect of this kind of discrimination on interstate commerce.

Senator ERVIN. You keep wanting to talk about discrimination. I want to talk about the constitutional basis for the bill.

Attorney General KENNEDY. I want to do that too, Senator. That is why the question of discrimination is important. You say Congress has the right under the Interstate Commerce Act and the Motor Carrier Act to deal with individuals traveling in interstate commerce. Since discrimination against persons traveling in interstate commerce has an adverse effect on interstate commerce, Congress has the authority and the right to pass legislation to control this situation. They have the authority and right to pass legislation, as I say, dealing with oleomargarine. I think therefore that they have the right to pass a law to protect all persons in the United States when they are traveling in interstate commerce. I do not understand the other position.

Senator ERVIN. The point you are making was presented to the Court by the plaintiff, Charles E. Williams, in the case of Williams v. Howard Johnson's Restaurant, which was decided by the U.S. Court of Appeals for the Fourth Circuit on July 16, 1959, and which is reported in 268 F. 2d 845. The point was expressly rejected in the portion of the opinion which begins on page 848:

The plaintiff makes the additional contention based on the allegations that the defendant restaurant is engaged in interstate commerce because it is located beside an interstate highway and serves interstate travelers. He suggests that a Federal policy has been developed in numerous decisions which requires the elimination of racial restrictions on transportation in interstate commerce and the admission of Negroes to railroad cars, sleeping cars, and dining cars without discrimination as to color; and he argues that the commerce clause of the Constitution (art. I, sec. 8, clause 3), which empowers Congress to regulate commerce among the States, is self-executing so that even without a prohibitory statute no person engaged in interstate commerce may place undue restrictions upon it.

The cases upon which the plaintiff relies in each instance disclosed discriminatory action against persons of the colored race by carriers engaged in the transportation of passengers in interstate commerce. In some instances the carrier's action was taken in accordance with its own regulations, which were declared illegal as a violation of paragraph 1, section 2, of the Interstate Commerce Act (49 U.S.C.A., sec. 3(1)), which forbids a carrier to subject any person to undue or unreasonable prejudice or disadvantage in any respect, as in Mitchell v. U.S. (313 U.S. 80, 61 S. Ct. 873, 85 L. Ed. 1201) and Henderson v. United States (338 U.S. 816, 70 S. Ct. 843, 94 L. Ed. 1302).

In other instances, the carrier's action was taken in accordance with a State statute or State custom requiring the segregation of the races by public carriers and was declared unlawful as creating an undue burden on interstate commerce in violation of the commerce clause of the Constitution, as in Morgan v. Commission of Virginia.

I will not read those citations.
Here is what the court says:

In every instance the conduct condemned was that of an organization directly engaged in interstate commerce and the line of authority would be persuasive in the determination of the present controversy if it could be said that the defendant restaurant was so engaged. We think, however, that the cases cited are not applicable because we do not find that a restaurant is engaged in interstate commerce merely because in the course of its business of furnishing accommodations to the general public it serves persons who are traveling from State to State. As an instrument of local commerce, the restaurant is not subject to the constitutional and statutory provisions discussed above and, thus, is at liberty to deal with such persons as it may select.

Mr. Chairman, I ask unanimous consent to have this entire decision printed in the record at this point.

The CHAIRMAN. It may be printed in the record.

(The document referred to follows:)

CHARLES E. WILLIAMS, APPELLANT, v. HOWARD JOHNSON'S RESTURANT, RUSSELL V. KEYS AND MARY BARNES, APPELLEES

No. 7867.

United States Court of Appeals Fourth Circuit.

Argued June 15, 1959. Decided July 16, 1959.

Action complaining that defendant, operating private restaurant in state of Virginia, violated plaintiff's federal rights in refusing to serve him because he was a Negro. The United States District Court for the Eastern District of Virginia at Alexandria, Albert V. Bryan, J., dismissed the action and plaintiff appealed. The Court of Appeals, Soper, Circuit Judge, held, inter alia, that a privately operated restaurant, as an instrument of local commerce, was at liberty to deal with such persons as it might select and that the commerce clause and the 13th and 14th Amendments of the Federal Constitution did not operate to prevent proprietors from excluding Negroes

[blocks in formation]

The Civil Rights Act of 1875, insofar as it is constitutional, creates no cause of action against privately owned restaurant based on its refusal to serve persons assertedly because they are Negroes. Act March 1, 1875, §§ 1, 2, 18 Stat. 335.

[blocks in formation]

Customs of people of state do not constitute state action within prohibition of 14th Amendment to United States Constitution. U.S.C.A. Const. Amend. 14. 3. Constitutional Law

216

Where statutes of state did not require private restaurant operators to exclude Negroes from their establishments, no acquiescence of state in exclusionary practices would amount to state action within condemnation of 14th Amendment to Federal Constitution. U.S.C.A. Const. Amend. 14; Code Va. 1950 §§ 18-327, 18-328, 35-26, 56–196, 56-325, 56–326, 56–490, 56–396.

4. Commerce 16

A restaurant was not engaged in interstate commerce merely because, in course of its business, it furnished accommodations to general public and served persons travelling from state to state. U.S.C.A. Const. art. 1, § 8, cl. 3; Interstate Commerce Act, § 3(1), 49 U.S.C.A. § 3(1).

[blocks in formation]

A privately operated restaurant, as an instrument of local commerce, was at liberty to deal with such persons as it might select, and the commerce clause and the 13th and 14th Amendments of the Federal Constitution did not operate to prevent its proprietor from excluding Negroes. U.S.C.A. Const. art. 1, § 8, cl. 3; Amends. 13, 14.

Charles E. Williams, Lexington, Va., pro se.

James H. Simmonds, Arlington, Va. (Howard M. Murphy, Arlington, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

Charles E. Williams, an attorney in the Internal Revenue Service of the United States, brings this suit on his own behalf and on behalf of all others similarly situated against Howard Johnson's Restaurant in the City of Alexandria, Virginia, complaining that he was wrongfully refused service by the restaurant on the morning of April 20, 1958, because he is a Negro. He seeks a declaratory judgment that his exclusion on racial grounds amounted to disrimination against a person moving in interstate commerce and also interference with the free flow of commerce in violation of the Constitution of the United States, as well as a violation of the Civil Rights Acts of 1875, 18 Stat. 335. He prays for an injunction restraining the defendant from denying him

and persons similarly situated access to the restaurant and also a money penalty for the infraction of the statute. On motion of the defendant his suit was dismissed by the District Court. Notwithstanding the substantial inconvenience and embarrassment to which persons of the Negro race are subject in the denial to them of the right to be served in public restaurants, the dismissal of the suit was in accord with the decisions of the Supreme Court of the United States and other Federal courts.

[1] Sections 1 and 2 of the Civil Rights Act of 1875, upon which the plaintiff's position is based in part, provided that all persons in the United States should be entitled to the full and equal enjoyment of accommodations, advantages, facilities and privileges of inns, public conveyances and places of amusement, and that any person who should violate this provision by denying to any citizen the full enjoyment of any of the enumerated accommodations, facilities or privileges should for every such offense forfeit and pay the sum of $500 to the person aggrieved. The Supreme Court of the United States, however, held in Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, that these sections of the Act were unconstitutional and were not authorized by either the Thirteenth or Fourteenth Amendments of the Constitution. The Court pointed out that the Fourteenth Amendment was prohibitory upon the states only, so as to invalidate all state statutes which abridge the privileges or immunities of citizens of the United States or deprive them of life, liberty or property without due process of law, or deny to any person the equal protection of the laws; but that the amendment did not invest Congress with power to legislate upon the actions of individuals, which are within the domain of state legislation. The Court also held that the question whether Congress might pass such a law in the exercise of its power to regulate commerce was not before it, as the provisions of the statute were not conceived in any such view (109 U.S. 19, 3 S.Ct. 27). With respect to the Thirteenth Amendment, the Court held that the denial of equal accommodations in inns, public conveyances and places of amusement does not impose the badge of slavery or servitude upon the individual but, at most, infringes rights protected by the Fourteenth Amendment from state aggression. It is obvious, in view of this decision, that the present suit cannot be sustained by reference to the Civil Rights Act of 1875.1

The plaintiff concedes that no statute of Virginia requires the exclusion of Negroes from public restaurants and hence it would seem that he does not rely upon the provisions of the Fourteenth Amendment which prohibit the states from making or enforcing any law abridging the privileges and immunities of citizens of the United States or denying to any person the equal protection of the law. He points, however, to statutes of the state which require the segregation of the races in the facilities furnished by carriers and by persons engaged in the operation of places of public assemblage; 2 he emphasizes the long established local custom of excluding Negroes from public restaurants and he contends that the acquiescence of the state in these practices amounts to discriminatory state action which falls within the condemnation of the Constitution. The essence of the argument is that the state licenses restaurants to serve the public and thereby is burdened with the positive duty to prohibit unjust discrimination in the use and enjoyment of the facilities.

[2, 3] This argument fails to observe the important distinction between activities that are required by the state and those which are carried out by voluntary choice and without compulsion by the people of the state in accordance with their own desires and social practices. Unless these actions

1 Even if the Act of March 1, 1875, were valid, it would not support the plaintiff's case since it covers only inns, public conveyances and places of amusement. It has been held in Virginia, Alpaugh v. Wolverton, 184 Va. 943, 36 S.E. 2d 906, in a case which did not involve race relations, that a restaurant owner is not an innkeeper charged with the common-law duty to serve everyone who applies. The Court said at page 948 of 184 Va., at page 908 of 36 S.E. 2d. :

"A restaurant, on the other hand, is an establishment where meals and refreshments are served. 28 Am. Jur., Innkeepers, § 10, p. 545; 43 C.J.S., Innkeepers, § 1, subsec. b, p. 1132. "The proprietor of a restaurant is not subject to the same duties and responsibilities as those of an innkeeper, nor is he entitled to the privileges of the latter. 28 Am. Jur., Innkeepers § 120, p. 623; 43 C.J.S., Innkeepers, $20 subsec. b, p. 1169. His rights and responsibilities are more like those of a shopkeeper. Davidson v. Chinese Republic Restaurant Co., 201 Mich. 389, 167 N.W. 967, 969, L.R.A.1918E, 704. He is under no commonlaw duty to serve everyone who applies to him. In the absence of statute, he may accept some customers and reject others on purely personal grounds. Nance v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773, 776; Noble v. Higgins, 95 Misc. 328, 158 N.Y.S. 867, 868." 2 See Code of Virginia, 1950, Title 56, §§ 196, 325, 326, 390, 396; Title 18, §§ 327, 328.

are performed in obedience to some positive provision of state law they do not furnish a basis for the pending complaint. The license laws of Virginia do not fill the void. Section 35-26 of the Code of Virginia, 1950, makes it unlawful for any person to operate a restaurant in the state without an unrevoked permit from the Commissioner, who is the chief executive officer of the State Board of Health. The statute is obviously designed to protect the health of the community but it does not authorize state officials to control the management of the business or to dictate what persons shall be served. The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment. As stated by the Supreme Court of the United States in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 842, 92 L.Ed. 1161:

"Since the decision of this Court in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." (Emphasis supplied.)

The plaintiff makes the additional contention based on the allegations that the defendant restaurant is engaged in interstate commerce because it is located beside an interstate highway and serves interstate travelers. He suggests that a Federal policy has been developed in numerous decisions which requires the elimination of racial restrictions on transportation in interstate commerce and the admission of Negroes to railroad cars, sleeping cars and dining cars without discrimination as to color; and he argues that the commerce clause of the Constitution (Article I, Section 8, Clause 3), which empowers Congress to regulate commerce among the states, is self-executing so that even without a prohibitory statute no person engaged in interstate commerce may place undue restrictions upon it.

The cases upon which the plaintiff relies in each instance disclosed discriminatory action against persons of the colored race by carriers engaged in the transportation of passengers in interstate commerce. In some instances the carrier's action was taken in accordance with its own regulations, which were declared illegal as a violation of paragraph 1, section 3 of the Interstate Commerce Act, 49 U.S.C.A. § 3(1), which forbids a carrier to subject any person to undue or unreasonable prejudice or disadvantage in any respect, as in Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201, and Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302. In other instances, the carrier's action was taken in accordance with a state statute or state custom requiring the segregation of the races by public carriers and was declared unlawful as creating an undue burden on interstate commerce in violation of the commerce clause of the Constitution, as in Morgan v. Com. of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317; Williams v. Carolina Coach Co., D.C.Va., 111 F.Supp. 329, affirmed 4 Cir., 207 F.2d 408; Flemming v. S. C. Elec. & Gas Co., 4 Cir., 224 F.2d 752; and Chance v. Lambeth, 4 Cir., 186 F.2d 879.

[4, 5] In every instance the conduct condemned was that of an organization directly engaged in interstate commerce and the line of authority would be persuasive in the determination of the present controversy if it could be said that the defendant restaurant was so engaged. We think, however, that the cases cited are not applicable because we do not find that a restaurant is engaged in interstate commerce merely because in the course of its business of furnishing accommodations to the general public it serves persons who are traveling from state to state. As an instrument of local commerce, the restaurant is not subject to the constitutional and statutory provisions discussed above and, thus, is at liberty to deal with such persons as it may select. Our conclusion is, therefore, that the judgment of the District Court must be affirmed.

Affirmed.

Attorney General KENNEDY. May I make a comment on it?
Senator ERVIN. Yes.

Attorney General KENNEDY. First, I think that examination of that decision will show that what the Court was passing on was whether the statutes then in existence, the statutes already in existence, the legislation that had already been passed, dealt with

« AnteriorContinuar »