Evans v. Ross

Decision Date21 September 1959
Docket NumberNo. A--602,A--602
PartiesMelvin S. EVANS and John R. Norwood, Complainants-Respondents, v. Burt J. ROSS, trading as Holly House, Respondent-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Robert E. Gladden, Camden, argued the cause for appellant (Ross, Flowers & Gladden, Camden, attorneys).

Thomas P. Cook, Deputy Atty. Gen., argued the cause for respondents (David D. Furman, Atty. Gen., attorney; Thomas P. Cook, Princeton, of counsel).


The opinion of the court was delivered by


Melvin S. Evans and John R. Norwood filed complaints with the Division Against Discrimination, in the State Department of Education, charging Burt J. Ross, trading as Holly House, with violating the Law Against Discrimination (L.1945, c. 169, as amended; N.J.S.A. 18:25--1 et seq.), and specifically N.J.S.A 18:25--12(f), in that he refused to rent any banquet or meeting room facilities in Holly House to their organization, the Moorestown Civic Club, because it was an all-Negro group. Ross answered and by way of separate defenses alleged, among other things, that (1) although the dining room at Holly House was a place of public accommodation, the banquet and meeting rooms were not, but were private facilities for the use of such specific persons and groups as he might contract with; (2) the Division was without jurisdiction to hear the complaints; and (3) he had not committed any act of unlawful discrimination within the meaning of the statute. Following a full public hearing the Commissioner of Education filed a decision and order in which he found ross guilty of discrimination, as charged, and ordering him 'to cease and desist from discriminating against any and all persons and any and all groups in the rental of banquet and/or meeting facilities or in extending any other service of the Holly House on account of race, creed, color, or national origin.' N.J.S.A. 18:25--17.

Ross thereupon appealed to the County Court. N.J.S.A. 18:25--21. The parties stipulated that the county judge should decide the factual situation upon the transcript taken below. The County Court affirmed the decision of the Commissioner. Ross thereupon appealed to this court. N.J.S.A. 18:25--23.

The complainants, representing the Moorestown Civic Club, went to Holly House on April 24, 1958 and inquired of Ross as to the possibility of having a banquet at his establishment on any Saturday in June. They explained that the club was an all-Negro organization. Ross told them there were no Saturdays available. They made like inquiry as to any Saturday in May, and then July and August. In each case Ross gave them the same answer. They told Ross that it appeared he did not care to rent his facilities to their group, and he said, 'That's right.' These allegations were established by uncontradicted evidence at the hearing; indeed, Ross admitted he told complainants he did not wish to rent out his banquet rooms to a Negro group. He also admitted there were rooms that would have been available to other applicants. The Holly House reservation book showed that beginning with May 24, 1958 there was at least one room available every Saturday evening for the rest of the summer.

The Commissioner of Education found as a fact that the banquet and meeting room facilities of Holly House are operated as places of public accommodation and that Ross unlawfully refused to rent these facilities to the Moorestown Civic Club on account of its Negro membership. He also rejected the argument that the Division had no jurisdiction. The County Court came to the same conclusions.

The first contention on this appeal is that the Division had no jurisdiction to hear the complaints and to enforce those portions of the Law Against Discrimination which deal with public accommodations. The argument made is that under N.J.S.A. 18:25--6 the jurisdiction of the Division to hear complaints is limited to charges of discrimination in employment. Section 6 of the act provides:

'There is created in the State Department of Education a division to be known as 'The Division Against Discrimination' With power to prevent and eliminate discrimination in employment against persons because of race, creed, color, national origin or ancestry or because of their liability for service in the armed forces of the United States, by employers, labor organizations, employment agencies or other persons And to take other actions against discrimination because of race, creed, color, national origin or ancestry or because of their liability for service in the armed forces of the United States, As herein provided; and the division created hereunder is given general jurisdiction and authority for such purposes.' (Italics ours.)

Although recognizing that the Law Against Discrimination has since 1945 been amended in many respects (of which more hereafter), appellant points out that section 6 has not been changed so as to enlarge the original jurisdiction of the Division. Pointing to the above italicized phrase, 'as herein provided,' he contends that the Legislature thereby specifically limited the jurisdiction of the Division to the specific type of complaint set out in that section--discrimination in employment. The argument is transparently without merit.

The Law Against Discrimination, L.1945, c. 169, originally applied only to discrimination in employment. Section 11 (N.J.S.A. 18:25--12), containing subparagraphs (a) through (e), pertained to employers, labor organizations and employment agencies, and persons aiding and abetting the doing of any acts forbidden under the law as promulgated. L.1949, c. 11, extensively broadened the provisions of the act. Thus, section 4 (N.J.S.A. 18:25--4) was amended to provide that 'All persons shall have the opportunity to obtain employment and obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, without discrimination because of race, creed, color, national origin or ancestry * * *.' Section 8 (N.J.S.A. 18:25--8) was amended to employer the Commissioner of Education to organize the Division Against Discrimination into two sections, the first dealing with complaints alleging discrimination in employment and the second with complaints alleging 'other unlawful acts of discrimination.' The 1949 law also contained a whole series of related amendments making other procedural sections apply to 'unlawful discrimination' as well as 'unlawful employment practice'--see, for example, sections 8, 9, 10, 11 and 14 of L.1949, c. 11 (now N.J.S.A. 18:25--13, 14, 15, 17 and 21). Finally, section 11 of the original act (now N.J.S.A. 18:25--12) was amended by adding subparagraph (f), making it an unlawful discrimination 'for any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation directly or indirectly to refuse, withhold from or deny to any person any of the accommodations, advantages, facilities or privileges thereof * * *.' 'Unlawful discrimination' is denied by N.J.S.A. 18:25--5(d) to include those types of discrimination, other than unlawful employment practices, prohibited by N.J.S.A. 18:25--12.

Appellant cites Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 148 A.2d 1 (1959), in support of his argument that the Division was without jurisdiction, noting that the Supreme Court, in commenting on the 1945 act, said that the Division was created with power to eliminate employment discrimination. He fails to observe that the court went on to say that the 1949 amendments 'estended the scope of L.1945, c. 169, to include discriminations in places of public accommodation and amusement based on race, creed, color, national origin or ancestry * * *.' 29 N.J., at page 59, 148 A.2d, at page 7.

The interpretation of the statute contended for by appellant would render the 1949 amendments futile and abortive. Courts will not so construe a statute if that result can possibly be avoided, particularly where one must strain to arrive at such a construction. In construing an enactment we must give effect to the overriding plan or purpose of the Legislature as fairly expressed in its language. We avoid any interpretation that will render any part of the statute inoperative, superfluous or meaningless. O'Rourke v. Board...

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