State v. Goldfinch, 45491

• Decision Date: 29 June 1961
• Docket Number: No. 45491,45491
• Citation: 132 So.2d 860,241 La. 958
• Parties: STATE of Louisiana v. Sidney Langston GOLDFINCH, Jr., et al.
• Court: Louisiana Supreme Court

Page 860

132 So.2d 860

241 La. 958

STATE of Louisiana v. Sidney Langston GOLDFINCH, Jr., et al.

No. 45491.

Supreme Court of Louisiana.

June 29, 1961.

Rehearing Denied Oct. 4, 1961.

John P. Nelson, Jr., Lolis E. Elie, Nils R. Douglas, Robert F. Collins, New Orleans, for defendants-appellants.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., Robert J. Zibilich, Asst. Dist. Atty., New Orleans, for appellee.

SUMMERS, Justice.

The four defendants herein, a white and three Negroes, were jointly charged in a bill of information filed by the District Attorney of Orleans Parish with criminal mischief in that on September 17, 1960, they took possession of the lunch counter at McCrory's Store, and remained there after being ordered to leave by the manager in violation of the provisions of Title 14, section 59 of the LSA-Revised Statutes of the State of Louisiana, the pertinent portions of which provide:

'Criminal mischief is the intentional performance of any of the following acts:

(6) Taking temporary possession of any part or parts of a place of business, or remaining in a place of business after the person in charge of such business or portion of such business has ordered such person to leave the premises and to desist from the temporary possession of any part or parts of such business.'

The defendants entered McCrory's store in New Orleans on the morning in question and took seats at one of the counters therein. McCrory's is part of a national chain operating in thirty-four states, owned by McCrory Stores, Incorporated. The New Orleans establishment is classified as a 'variety merchandise' type store, made up of approximately twenty departments and open to the general public. Included in its services to the public are eating facilities composed of a main restaurant that seats 210, a counter for colored persons that seats 53, a refreshment bar that seats 24, and two stand-up counters.

The defendants were refused service at the counter where they were seated and which was reserved for whites, the manager was called, the counter was closed, and the defendants were requested to leave--in accordance with the policy of the store, fixed and determined by the manager in catering to the desires of his customers--or to seek service at a counter in the store providing service for Negroes. Upon their refusal, the police, who had been summoned by the manager, arrested them. They were subsequently tried and convicted of having violated the foregoing statute.

Defendants filed a motion to quash, motion for a new trial and a motion in arrest of judgment, all of which were overruled, and objected to the refusal of the Court to permit the introduction of certain evidence to which bills of exceptions were reserved.

These motions and bills of exceptions pertain primarily to the contention of defendants that the statute under which they were convicted, in its application against Negroes, is unconstitutional and discriminatory in that it denies to them the guarantees afforded by the Due Process and Equal Protection Clauses of the Constitution of the United States and the Constitution of the State of Louisiana, particularly that afforded by the Fourteenth Amendment to the Constitution of the United States.

There should be no doubt, and none remains in our minds, about the applicability of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the state rather than private persons. The second sentence contains the phrases, 'No State shall make or enforce any law * * *' and 'nor shall any State deprive any person * * *; nor deny to any person * * *.'

Since the decision in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 21, 27 L.Ed. 835, it has been unequivocally understood that the Fourteenth Amendment covers state action and not individual action. Mr. Justice Bradley, speaking for the majority in these cases, stated:

'The first section of the fourteenth amendment,--which is the one relied on,--after declaring who shall be citizens of the United States, and of the several states, is prohibitory in its character, and prohibitory upon the states. * * *

'It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.'

The foregoing concrete language indicates emphatically that positive action by state officers and agencies is the contemplated prohibition of the amendment. 43 Cornell L.Q. 375. Mr. Justice Bradley further stated that the wrongful act of an individual is not state action 'if not sanctioned in some way by the state, or not done under state authority, * * *.' This proposition has been constantly reiterated by the highest court of our land. In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 842, 92 L.Ed. 1161, it was stated thusly: '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.'

We are, therefore, called upon to determine whether the enactment of the questioned statute is such action by the State as is prohibited by the Fourteenth Amendment. In this connection it is recognized that the enactment of a statute which on its face provides for discrimination based upon race or color is a violation of the Fourteenth Amendment and constitutes state actions which that constitutional amendment prohibits.

A reading of the statute readily discloses that it makes no reference to any class, race or group and applies to all persons alike, regardless of race. It confers no more rights on members of the white race than are conferred on members of the Negro race, nor does it provide more privileges to members of the white race than to members of the Negro race. Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845. The statute under consideration here stands no differently than does one imposing a penalty upon a person who enters without right the posted lands of another. It is not such a lwa as would be marked with the characteristic that it has been promulgated by our State for a special design against the race of persons to which defendants belong. To the contrary it is such a law that finds widespread acceptance throughout America. It is a legislative recognition of rights accorded to the owners of property similar to those found in almost all states of our nation. Mr. Justice Black in Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 865, 87 L.Ed. 1313, referring to a statute of Virginia similar in scope to that here involved, said: 'Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more.'

Not being impressed with features which would mark it as discriminatory and A fortiori unconstitutional, ¹ we conclude that the constitutionality of the statute must be presumed. State v. Winehill & Rosenthal, 147 La. 781, 86 So. 181, writ of error dismissed, 258 U.S. 605, 42 S.Ct. 313, 66 L.Ed. 786; Panama R.R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748; Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303; State ex rel. Porterie v. Grosjean, 182 La. 298, 161 So. 871; State v. Saia, 212 La. 868, 33 So.2d 665; Schwegmann Bros. v. La. Board of Alcoholic Beverage Control, 216 La. 148, 43 So.2d 248, 14 A.L.R.2d 680; Olivedell Planting Co. v. Town of Lake Providence, 217 La. 621, 47 So.2d 23; Jones v. State Board of Education, 219 La. 630, 53 So.2d 792; State v. Rones, 223 La. 839, 67 So.2d 99; State v. McCrory, 237 La. 747, 112 So.2d 432; Michon v. La. State Board of Optometry Examiners, La.App., 121 So.2d 565; 11 Am.Jur., Const.Law, Sec. 97.

Furthermore, courts will not hold a statute unconstitutional because the legislature had an unconstitutional intent in enacting the statute which has not been shown here. Doyle v. Continental Insurance Co., 94 U.S. 535, 24 L.Ed. 148; Daniel v. Family Security Life Ins. Co., 336 U.S. 220, 69 S.Ct 550, 93 L.Ed. 632; State ex rel. Russum v. Jefferson County Comm., 224 Ala. 229, 139 So. 243; Morgan County v. Edmondson, 238 Ala. 522, 192 So. 274. The courts will test a statute as it stands, without considering how it might be enforced. James v. Todd, 267 Ala. 495, 103 So.2d 19, appeal dismissed 358 U.S. 206, 79 S.Ct. 288, 3 L.Ed.2d 235; Clark v. State, 169 Miss. 369, 152 So. 820. Courts in considering constitutionality of legislation cannot search for motive. Shuttlesworth v. Birmingham Board of Education, D.C., 162 F. [241 La. 968] Supp. 372, affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145.

Defendants further assert in their attack upon the statute that by content, reference and position of context it is designed to apply to, and be enforced in an arbitrary manner against, members of the Negro race and those acting in concert with them. In aid of this assertion certain House bills of the Louisiana Legislature for 1960, introduced in the same session with the contested statute were offered in evidence. ² All of these bills did not become law but some did. ³ It is declared that this law and the others enacted during the same session were designed to apply to and be enforced against, in an arbitrary manner, members of the Negro race. We have carefully reviewed the provisions of these bills referred to which were enacted into law and nowhere in their content or context do we find that any of them seek to discriminate against any class, group, or race of persons. We therefore find no...