State v. Avent, 654

Decision Date20 January 1961
Docket NumberNo. 654,654
Citation253 N.C. 580,118 S.E.2d 47
PartiesSTATE, v. John Thomas AVENT. STATE v. Lacy Carrole STREETER. STATE v. Frank McGill COLEMAN. STATE v. Shirley Mae BROWN. STATE v. Donovan PHILLIPS. STATE v. Callis Napolis BROWN. STATE v. Joan Harris NELSON.
CourtNorth Carolina Supreme Court

T. W. Bruton, Atty. Gen., and Ralph Moody, Asst. Atty. Gen., for the State.

William A. Marsh, Jr., M. Hugh Thompson, C. O. Pearson, W. G. Pearson, F. B. McKissick and L. C. Berry, Jr., Durham, for defendants, appellants.

PARKER, Justice.

Each defendant--five of whom are Negroes and two members of the White race--before pleading to the indictment against him or her made a motion to quash the indictment. The court overruled each motion, and each defendant excepted. The motions were made in apt time. State v. Perry, 248 N.C. 334, 103 S.E.2d 404; Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; 27 Am.Jur., Indictments and Information, § 141.

At the close of all the evidence each defendant made a motion for judgment of compulsory nonsuit. Each motion was overruled, and each defendant excepted.

S. H. Kress and Company is a privately owned corporation, and in the conduct of its store in Durham is acting in a purely private capacity to make a profit for its shareholders. There is nothing in the evidence before us, or in the briefs of counsel to suggest that the store building in which it operates is not privately owned. In its basement in the luncheonette department it operates a restaurant. 'While the word 'restaurant' has no strictly defined meaning, it seems to be used indiscriminately as a name for all places where refreshments can be had, from a mere eating house and cookshop, to any other place where eatables are furnished to be consumed on the premises. Citing authority. It has been defined as a place to which a person resorts for the temporary purpose of obtaining a meal or something to eat. ' State v. Shoaf, 179 N.C. 744, 102 S.E. 705, 9 A.L.R. 426. To the same effect see, 29 Am.Jur., (1960), Innkeepers, § 9, p. 12. In Richards v. Washington F. & M. Ins. Co., 60 Mich. 420, 27 N.W. 586, 588, the Court said: 'A 'restaurant' has no more defined meaning, (than the English word shop), and is used indiscriminately for all places where refreshments can be had, from the mere eating-house or cookshop to the more common shops or stores, where the chief business is vending articles of consumption and confectionery, and the furnishing of eatables to be consumed on the premises is subordinate. ' Quoted with approval in Michigan Packing Co. v. Messaris, 257 Mich. 422, 241 N.W. 236, and restated in substance in 43 C.J.S. Innkeepers § 1, subsection b, p. 1132.

No statute of North Carolina requires the exclusion of Negroes and of White people in company with Negroes from restaurants, and no statute in this State forbids discrimination by the owner of a restaurant of people on account of race or color, or of White people in company with Negreos. In the absence of a statute forbidding discrimination based on race or color in restaurants, the rule is well established that an operator of a privately owned restaurant privately operated in a privately owned building has the right to select the clientele he will serve, and to make such selection based on color, race, or White people in company with Negroes or vice versa, if he so desires. He is not an innkeeper. This is the common law. State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295; Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845; Slack v. Atlantic White Tower System, Inc., D.C., 181 F.Supp. 124, affirmed by the U. S. Court of Appeals for the 4 Cir., 284 F.2d 746; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906; Wilmington Parking Authority v. Burton, Del., 157 A.2d 894; Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773. See 10 Am.Jur., Civil Rights, § 21; Powell v. Utz, D.C., 87 F.Supp. 811; and Annotation 9 Am. & Eng.Ann.Cas. 69--statutes securing equal rights in places of public accommodation. We have found no case to the contrary after diligent search, and counsel for defendants have referred us to none.

In Alpaugh v. Wolverton, supra [184 Va. 943, 36 S.E.2d 908], the Court said: 'The proprietor of a restaurant is not subject to the same duties and responsibilities as those of an innkeeper, nor is he entitled to the privileges of the latter. Citing authority. His rights and responsibilities are more like those of a shopkeeper. Citing authority. He is under no common-law duty to serve every one who applies to him. In the absence of statute, he may accept some customers and reject others on purely personal grounds. Citing authority.'

In Boynton v. Commonwealth of Virginia, 81 S.Ct. 182, 188, the Court held that a Negro passenger in transit on a paid Interstate Trailways' journey had a right to food service under the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., in a Bus Terminal Restaurant situate in the Bus Station, and operated under a lease by a company not affiliated with the Trail-ways Bus Company. Then the Court in the majority opinion deliberately stated: 'We are not holding that every time a bus stops at a wholly independent roadside restaurant the Interstate Commerce Act requires that restaurant service be supplied in harmony with the provisions of that Act.'

In State v. Clyburn, supra [247 N.C. 455, 101 S.E.2d 296], the defendants were tried on similar warrants charging that each defendant unlawfully entered upon the land of L. A. Coletta and C. V. Porcelli after being forbidden to do so and did 'unlawfully refuse to leave that portion of said premises reserved for members of the White Race knowing or having reason to know that she had no license therefor. ' Coletta and Porcelli did business under the trade name of Royal Ice Cream Company retailing ice cream and sandwiches. The building in which they did business is separated by partition into two parts. One part has a door opening on Dowd Street, the other a door opening on Roxboro Street. Each portion is equipped with booths, a counter and stools. Over the Dowd Street door is a large sign marked Colored, over the Roxboro Street door is a similar sign marked White. Sales are made to different races only in the portions of the building as marked. Defendants, all Negroes, went into the building set apart for White patrons, and requested service. Coletta asked them to leave. They refused to do so, and they were arrested by a police officer of the city of Durham. All were convicted, and from judgments imposed, all appealed to the Supreme Court. We found No Error in the trial. The Court in its opinion said: 'The right of an operator of a private enterprise to select the clientele he will serve and to make such selection based on color, if he so desires, has been repeatedly recognized by the appellate courts of this nation. Madden v. Queens County Jockey Club, 296 N. Y. 249, 72 N.E.2d 697, 1 A.L.R.2d 1160; Terrell Wells Swimming Pool v. Rodriguez, Tex.Civ.App., 182 S.W.2d 824; Booker v. Grand Rapids Medical College, 156 Mich. 95, 120 N.W. 589, 24 L.R.A., N.S., 447; Younger v. Judah, 111 Mo. 303, 19 S.W. 1109 ; Goff v. Savage, 122 Wash. 194, 210 P. 374; De La Ysla v. Publix Theatres Corporation, 82 Utah 598, 26 P.2d 818; Brown v. Meyer Sanitary Milk Co., 150 Kan. 931, 96 P.2d 651; Horn v. Illinois Cent. R. Co., 327 Ill. App. 498, 64 N.E.2d 574; Coleman v. Middlestaff, 147 Cal.App.2d Supp. 833, 305 P.2d 1020; Fletcher v. Coney Island, 100 Ohio App. 259, 136 N.E.2d 344; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906. The owner- operator's refusal to serve defendants, except in the portion of the building designated by him, impaired no rights of defendants.'

In an Annotation in 9 A.L.R., p. 379, it is said: 'It seems to be well settled that, although the general public have an implied license to enter a retail store, the proprietor is at liberty to revoke this license at any time as to any individual, and to eject such individual from the store if he refuses to leave when requested to do so. ' The Annotation cites cases from eight states supporting the statement. See to the same effect, Brookside-Pratt Mining Co. v Booth, 211 Ala. 268, 100 So. 240, 33 A.L.R. 417, and Annotation in 33 A.L.R. 421.

This is said by Holmes, J., for the Court in Terminal Taxicab Co. v. Kutz, 241 U.S. 252, 256, 36 S.Ct. 583, 585, 60 L.Ed. 984, 987, a suit to restrain the Public Utilities Commission from exercising jurisdiction over the business of a taxicab company: 'It is true that all business, and, for the matter of that, every life in all its details, has a public aspect, some bearing upon the welfare of the community in which it is passed. But, however it may have been in earlier days as to the common callings, it is assumed in our time that an invitation to the public to buy does not necessarily entail an obligation to sell. It is assumed that an ordinary shop keeper may refuse his wares arbitrarily to a customer whom he dislikes * * *.'

None of the cases cited in defendants' brief are applicable to the situation which obtains in the instant cases. For instance, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5--public education; Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531--public transportation; Valle v. Stengel, 3 Cir., 176 F.2d 697--a case in respect to an amusement park in the State of New Jersey, which State has a statute, R.S. 10:1-3, N.J.S.A., providing that no proprietor of a place of public resort or amusement. '* * * shall directly or indirectly refuse, withhold from, or deny to, any person any of the accommodations, advantages, facilities or privileges, thereof * * * on account of race, creed or color,' R.S. 10:1-6, N.J.S.A.

'The right of property is a fundamental, natural, inherent, and inalienable right. It is not ex gratia from the legislature, but ex debito from the Constitution. In fact, it does not owe its origin to the Constitutions which protect it, for it...

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