Ex parte Banks

• Citation: 42 Ala.App. 669,178 So.2d 98
• Decision Date: 09 March 1965
• Docket Number: 7 Div. 803
• Parties: Ex parte Constance Dalphne BANKS et al.
• Court: Alabama Court of Appeals

Page 98

178 So.2d 98

42 Ala.App. 669

Ex parte Constance Dalphne BANKS et al.

7 Div. 803.

Court of Appeals of Alabama.

March 9, 1965.

Rehearing Denied March 30, 1965.

Arthur D. Shores, Birmingham, Jack Greenberg and Norman C. Amaker, New York City, for petitioners.

Richmond M. Flowers, Atty. Gen., for the State.

CATES, Judge.

This is an original petition for leave to file with the Circuit Court of Talladega County a petition for writ of error coram nobis. The original appeal has become final and the opinion is reported in 42 Ala.App. 519, 170 So.2d 417.

On rehearing there was presented to us the question of the amnesty effect of Title II of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000a-2000a-6.

In Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, and Lupper v. State of Arkansas, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, the Supreme Court of the United States held that the Civil Rights Act of 1964 had the effect of voiding theretofore unserved convictions under state court judgments where the act of violating a state law (e. g., trespass after warning) came about solely in an attempt to obtain goods or services from an establishment which, after the effective date of the Civil Rights Act of 1964, was required under said Act to render such goods or services without racial discrimination.

The provisions of the instant petition to this court provide in part:

'C. The establishment involved in this case, the City Pharmacy in Talladega, Alabama is one that is within the terms of Title II of the Act, in that it serves or offers to serve interstate travelers and sells food and other products of which a substantial portion have moved in commerce.

'D. The petitioners herein were engaged in a 'nonforcible attempt to gain admittance to or remain in' an establishment covered by the Act, so as to come within the rule of law established by the Supreme Court in the case of Hamm v. City of Rock Hill.'

I.

Interstate Travelers or Effect on Products in Commerce.

In the original trial, no effort was made to show that the establishment in question, the City Pharmacy, which was located on the Courthouse square in Talladega, Alabama, served or offered to serve interstate travelers or that the products or any of the components thereof served at the fountain in the Pharmacy moved in or affected interstate commerce.

No attempt was made, as was done in Heart of Atlanta Motel v. United States et al., 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258, to show that the defendants were traveling.

From the opinion in Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, we consider the question lies in proof, not congressional fiat. Thus we excerpt:

'Section 201(a) of Title II commands that all persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin; and § 201(b) defines establishments as places of public accommodation if their operations affect commerce or segregation by them is supported by state action. Sections 201(b)(2) and (c) place any 'restaurant * * * principally engaged in selling food for consumption on the premises' under the Act 'if * * * it serves or offers to serve interstate travelers or a substantial portion of the food which it serves * * * has moved in commerce.'

'Ollie's Barbecue admits that it is covered by these provisions of the Act. The Government makes no contention that the discrimination at the restaurant was supported by the State of Alabama. There is no claim that interstate travelers frequented the restaurant. The sole question, therefore, narrows down to whether Title II, as applied to a restaurant receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress. * * *

* * *

* * *

'* * * The only remaining question * * * is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce.

* * *

* * *

'* * * Insofar as the section of the Act here relevant is concerned, § 201(b)(2) and (c), Congress prohibited discrimination only in those establishments having a close tie to interstate commerce, i. e., those, like McClung's, serving food that has come from out of the State. We think in so doing that Congress acted well within its power to protect and foster commerce in extending the coverage of Title II only to those restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce.' (Italics added.)

A serious question arises as to the availability of post conviction relief by way of coram nobis. The only question raised on the original trial was a claim of invidious discrimination alleged to violate the Fourteenth Amendment.

Heretofore, in Woodard v. State, Ala.App., 171 So.2d 462 (Ms., Feb. 2, 1965), we have pointed out the similarity between coram nobis and the equitable grounds of revision of judgment secured by reason of surprise, accident, mistake or fraud. Usually, of course, remediable mistake embraces a mistake of fact and not one of law.

Here, we are presented with a rather paradoxical question in that at the time of the trial there was no federal law to preempt the case from the state courts, and hence the defendant's attorney was not entitled under the issues to raise any question of service of interstate travelers or products moving in interstate commerce. The issue was then only one under state law.

This point of reference, or course, is valid only from a fixed point in time. Nevertheless, distinguishable situations arose, such as have occurred in our state courts in consequence of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, in obedience to which our Supreme Court (273 Ala. 504, 142 So.2d 868) granted the writ of coram nobis to afford relief after conviction in violation of a federal self-executing constitutional right which had not been declared until the opinion...