Derrington v. Plummer

• Citation: 240 F.2d 922
• Decision Date: 01 April 1957
• Docket Number: No. 16151.,16151.
• Parties: W. F. (Dee) DERRINGTON and Harris County, Texas, acting herein by its County Judge and Commissioners, Appellants, v. M. W. PLUMMER et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

240 F.2d 922 (1956)

W. F. (Dee) DERRINGTON and Harris County, Texas, acting herein by its County Judge and Commissioners, Appellants, v. M. W. PLUMMER et al., Appellees.

No. 16151.

United States Court of Appeals Fifth Circuit.

December 19, 1956.

Writ of Certiorari Denied April 1, 1957.

Madison Rayburn, Asst. County Atty., Sam R. Merrill, Burke Holman, County Atty., Houston, Tex., Frank L. Merrill, Fort Worth, Tex., for appellants.

Henry E. Doyle, Francis L. Williams, Houston, Tex., for appellees.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

Writ of Certiorari Denied April 1, 1957. See 77 S.Ct. 680.

RIVES, Circuit Judge.

The district court, upon a thoughtfully considered memorandum opinion,¹ permanently enjoined Harris County, Texas,

"from renewing or extending the present lease, or from executing a new lease, or otherwise divesting itself of management and control of the premises comprising the Courthouse cafeteria without specific assurances that facilities will be made available for the use of colored persons under circumstances and conditions substantially equal to those afforded members of the white race,"

and further enjoined the lessee Derrington,

"after ninety (90) days from December 29, 1955, from excluding members of the colored race from patronage in the said cafeteria solely by reason of their race or color under the circumstances here prevailing."

From that decree both Harris County and its lessee Derrington appeal.

The facts are mostly stipulated and entirely undisputed. A new courthouse for Harris County was completed in the summer of 1953. A part of the basement was planned for operation as a restaurant or cafeteria and was furnished and equipped by the County for such purpose. As the building neared completion, the County advertised for bids for the lease of such space. Derrington was the successful bidder.

The County leased to Derrington for a term beginning June 10, 1953 and ending December 31, 1954,²

"* * * all of that certain space in the basement of the Harris County Court House in Houston, Harris County, Texas, known as the cafeteria space and being the room which is appropriately furnished and equipped for the operation of a cafeteria, together with the small rooms adjoining it which were built to be used in conjunction therewith."

The rental was admittedly adequate, 20% of the gross sales of the cafeteria or not less than $750.00 per month. The County agreed to provide water service, lighting, heating and air conditioning of the premises, and such water and electricity as is reasonably necessary to the conduct of the cafeteria business by Derrington. On his part, Derrington agreed to "operate a first class cafeteria", to "keep this cafeteria open at all such times as the Court House is open," to "abide by all Federal or State regulations as to policy, limitations on meals, food stuffs, drinks, etc., sold in this restaurant," and not to

"permit in the demised premises any disorderly conduct or any conduct or practice in violation of any ordinance of the City of Houston or of any State or Federal Law, or of a sort likely to bring discredit upon Harris County or its Court House."

Employees of Harris County were to be given a 10% reduction in the price of foods and drinks "through the use of coupons or meal tickets or other means as may be determined by the Commissioners Court of Harris County."

The district court found and we agree that the original lease agreement "was in all respects a bona fide and arms length transaction, and entered into in compliance with all requirements of law."

On the trial, the County's attorney stated,

"* * * that under Paragraph XIV of the lease as stipulated, that there is a renewal and optional agreement in there that would enable this man on five days\' notice to renew and extend this particular lease."

It was in fact stipulated that before the execution of the renewal lease covering the term from January 1, 1955 through December 31, 1956.

"* * * the said * * * Derrington had * * * timely and in the manner provided in said lease given said County notice of his intention to exercise his option to continue and renew said lease upon the same terms and provisions contained in the original lease."

The same paragraph XIV is contained in the second lease.³

There are numerous cafes and eating places for white people and for negroes within a five block radius of the courthouse.

During the original period of the lease, appellees undertook to purchase food in the cafeteria and Derrington refused them permission solely because they were negroes. This class suit followed. Subsequently, the renewal lease was executed with knowledge on the part of both the County and Derrington that the suit raised issues of alleged violation of appellees' civil rights by reason of the denial to them of the use and benefit of the cafeteria. It was further stipulated that if the appellees or any other negroes were again to present themselves for service at the cafeteria,

"Derrington would contend it to be his right to refuse to serve plaintiffs and such members of the Negro race in a like manner for any reason, and would probably refuse to serve members of the Negro or colored race for the sole reason that they were members of the Negro or colored race."

The acts of racial discrimination, both those committed and those immediately in prospect, are the acts of Derrington, the lessee. Derrington's second lease expiring December 31, 1956, before our mandate can become effective, it might be, though it is not, contended that the case would thereby become moot. If Derrington does not have an option to renew his lease (see footnote 3, supra), it may be renewed by mutual agreement, or the County may lease to another who will practice like discrimination. Even if there had been a voluntary cessation of the alleged illegal conduct, the public interest in having the...