Slack v. Atlantic White Tower System, Inc.

• Citation: 181 F. Supp. 124
• Decision Date: 16 February 1960
• Docket Number: Civ. No. 11073.
• Parties: Sara SLACK v. ATLANTIC WHITE TOWER SYSTEM, INC.
• Court: U.S. District Court — District of Maryland

181 F. Supp. 124

Sara SLACK v. ATLANTIC WHITE TOWER SYSTEM, INC.

Civ. No. 11073.

United States District Court D. Maryland.

February 16, 1960.

Joseph L. McLemore, Lawrence R. Bailey, Alexander A. Farrelly, Godfrey R. de Castro, New York City, and Charles P. Howard, Jr., Baltimore, Md., for plaintiff.

J. Cookman Boyd, Jr., and Walter S. Levin, Baltimore, Md., for defendant.

THOMSEN, Chief Judge.

Plaintiff brings this suit against Atlantic White Tower System, Inc., on her own behalf and on behalf of all others similarly situated, complaining that she was wrongfully refused service in its restaurant at Pulaski Highway (U.S. 40) and Highland Avenue, in Baltimore City, on June 8, 1957, because she is a Negro. She prays a declaratory judgment that the denial of such service violates her rights secured by the Constitution and laws of the United States, an injunction restraining such discrimination at any eating establishment under defendant's ownership, management or control, and other and further relief.

Facts.

The parties filed the following agreed statement of facts:

"Plaintiff, a Negro, is a resident of New York City, New York.

"Defendant is a Delaware Corporation operating and maintaining restaurants in the City of Baltimore, Maryland, and in cities of the State of Pennsylvania and in the District of Columbia.

"Plaintiff is a newspaper reporter by occupation and is employed by a newspaper having national circulation.

"On June 8, 1957 Plaintiff was returning from Washington, D. C. to New York City by automobile after have (sic) completed a reporting assignment in Washington, D. C. At about 9:25 in the morning of said date, Plaintiff entered a public eating establishment owned and operated by Defendant located in the City of Baltimore, State of Maryland, on U.S. Highway 40, near Highland Avenue. The Defendant's premises * * * consist of a building, housing the eating establishment, and a parking area on which there was located a sign reading `Parking—Only While Eating in White Tower—Trespassers will be Prosecuted.' * * *

"Plaintiff entered the White Tower and ordered two (2) large hamburgers to go. Then a few minutes later, Plaintiff ordered apple pie and coffee. The counter girl started to fix the pie to be taken out and Plaintiff told her that she wanted to eat it in the restaurant. Following the custom of the area the counter girl refused to serve the food to Plaintiff for consumption on the premises because Plaintiff was a member of the Negro race. At that time, there were vacant seats and accommodation for the use and service of patrons.

"Defendant has restaurants only in the State of Maryland and Pennsylvania and in the District of Columbia. It owns no commissary in any of these areas. Purchases or transportation or delivery across state lines, made by or to said Restaurants, if any, are not substantial."

The court will take judicial notice of the Annual Reports of the Commission on Interracial Problems and Relations¹ to the Governor and General Assembly of Maryland. Those reports show that in June 1957 it was not the uniform "custom of the area" to refuse to serve both Negroes and whites in the same restaurant, as indicated by the agreed statement of facts.

The Report dated January 1958 states that in 1957 Negroes were excluded or segregated in 75% of the restaurants in Baltimore, but accepted (unqualified) in 25%. The list of establishments accepting both races included the Howard Johnson's Restaurant on Route 40 in Baltimore City, a short distance from defendant's restaurant, hotel dining rooms, stores with counter service, and eating places of all types, in all sections of the city, many located on important through routes. A similar list was published for areas in Montgomery County, adjacent to the District of Columbia.

Discussion.

Plaintiff seeks to avoid the authority of Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845, by raising a number of points not discussed therein, and by arguing that in Maryland segregation of the races in restaurants is required by the State's decisional law and policy, whereas, she argues, that was not true in Virginia, where the Williams case arose. She also contends that the Williams case was improperly decided and should not be followed by this court.

The State's Policy and Decisions on Segregation.

As a basis for her contention that the alleged custom, practice and usage of segregating the races in restaurants in Maryland is in obedience to the decisional law of Maryland, she cites Williams v. Zimmerman, 1937, 172 Md. 563, 192 A. 353, 355, a school case, where the Court of Appeals said "Separation of the races is normal treatment in this state", and Durkee v. Murphy, 1942, 181 Md. 259, 29 A.2d 253, 256, a public park case. In the latter case the court said: "There can be no question that, unreasonable as such antipathies may be, they are prominent sources of conflict, and are always to be reckoned with. Many statutory provisions recognize this need, and the fact needs no illustration. `Separation of the races is normal treatment in this state.' * * * No additional ordinance was required to authorize the Board to apply this normal treatment; the authority would be an implied incident of power expressly given." See also Boyer v. Garrett, D.C.D.Md. 1949, 88 F.Supp. 353, affirmed, 4 Cir., 183 F.2d 582.

Much water has gone under the bridge since those cases were decided. By ch. 22 of the Acts of 1951, Maryland repealed its Jim Crow laws, Ann.Code, 1939 ed., art. 27, secs. 510 to 526.² At the same session the Commission on Interracial Problems and Relations was created. A month after the first opinion in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the Board of School Commissioners of Baltimore City abolished segregation in the Baltimore public schools. Shortly after the second Brown opinion, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the Attorney General of Maryland advised the State Superintendent of Schools that all constitutional and legislative acts of Maryland requiring segregation in Maryland public schools are unconstitutional and must be treated as nullities. The Attorney General referred to "the legal compulsion presently existing on the appropriate school authorities of the State of Maryland to make `* * * a prompt and reasonable start' toward the ultimate elimination of racial discrimination in public education." Varying progress has been made in the several counties. See e. g. Moore v. Board of Education of Harford County, D.C.D. Md., 152 F.Supp. 114, affirmed Slade v. Board of Education of Harford County, 4 Cir., 252 F.2d 291, certiorari denied 357 U.S. 906, 78 S.Ct. 1151, 2 L.Ed.2d 1157; Groves v. Board of Education of St. Mary's County, D.C.D.Md., 164 F. Supp. 621, affirmed 4 Cir., 261 F.2d 527; Annual Reports of the Commission, January 1958, p. 21, January 1960, p. 20.

In Dawson v. Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774, segregation in public parks and bathing beaches was held unconstitutional. The City and the State promptly desegregated all park facilities which had not already been desegregated. So far as this court is aware, no State or City facilities of any kind are now segregated, except certain places of Reformation and Punishment, Ann.Code, 1957 ed., art. 27, secs. 646 to 726. And the January 1956 Annual Report of the Commission, p. 12, notes that fifteen colored girls had been transferred from Crownsville State Hospital to Rosewood Training School, theretofore an all white institution.

The Court of Appeals of Maryland has not specifically overruled Williams v. Zimmerman or Durkee v. Murphy, but they are not regarded as law by the Maryland courts or by anyone else in the State. See Heintz v. Board of Education of Howard County, 1957, 213 Md. 340, 131 A.2d 869; Burr v. Sondheim, 1954, Sup.Ct. of Baltimore City, Race Rel.L.Rep., Vol. 1, No. 2, p. 309.

Such segregation of the races as persists in restaurants in Baltimore is not required by any statute or decisional law of Maryland, nor by any general custom or practice of segregation in Baltimore City, but is the result of the business choice of the individual proprietors, catering to the desires or prejudices of their customers.

Common Law and Statutory Duties of a Restaurant Owner in Maryland.

Plaintiff's next argument is that defendant, as a licensee of the State of Maryland operating a public restaurant or eating facility, had no right to exclude plaintiff from its services on a racial basis. She rests her argument on the common law, and on the Maryland license laws.

In the absence of statute, the rule is well established that an operator of a restaurant has the right to select the clientele he will serve, and to make such selection based on color, if he so desires. He is not an innkeeper charged with a duty to serve everyone who applies. Williams v. Howard Johnson's Restaurant, 268 F.2d at page 847; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906; State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295; and authorities cited in those cases. There is no restaurant case in Maryland, but the rule is supported by statements of the Court of Appeals of Maryland in Greenfeld v. Maryland Jockey Club, 190 Md. 96, 102, 57 A.2d 335, and in Good Citizens Community Protective Ass'n v. Board of Liquor License Commissioners, 217 Md. 129, 131, 141 A.2d 744.³

Art. 56, secs. 151 et seq., of the Ann. Code of Md., 1939 ed. (163 et seq. of the 1957 ed.), deals with licenses required of persons engaging in all sorts of businesses. Sec. 166 (now 178) provides: "Each person, firm or corporation, resident or nonresident, operating or conducting a restaurant or eating place, shall, before doing so, take out a license therefor, and pay an annual license fee of ten dollars ($10.00) for each place of business so operated except that in incorporated towns and cities of 8,000 inhabitants or...