State v. Avent, 654
Decision Date | 20 January 1961 |
Docket Number | No. 654,654 |
Citation | 253 N.C. 580,118 S.E.2d 47 |
Parties | STATE, 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. |
Court | North 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.
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. '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:
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:
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:
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.
...
To continue reading
Request your trial-
State v. Brown
...cited supra; Slack v. Atlantic White Tower System, Inc., 181 F.Supp. 124 (U.S.D.C.D.Md., 1960). As was stated in State v. Avent, 253 N.C. 580, 118 S.E.2d 47 (1961), vacated on other grounds, 373 U.S. 375, 83 S.Ct. 1311, 9 L.Ed.2d 97 'In the absence of a statute forbidding discrimination bas......
-
City of Charleston v. Mitchell, 17856
...possession. Any other interpretation of the word would improperly restrict clear legislative intent.' In the case of State v. Avent, 253 N.C. 580, 118 S.E.2d 47, it appears that the appellants entered the store of S. H. Kress & Company, in the City of Durham, North Carolina, and seated them......
-
Peterson v. City of Greenville Lombard v. State of Louisiana Gober v. City of Birmingham Avent v. State of North Carolina Shuttlesworth v. City of Birmingham
...the North Carolina Supreme Court evidently proceeded, however, on the erroneous assumption that no such ordinance existed. 253 N.C. 580, 118 S.E.2d 47. In these circumstances I agree with the Court that the case should be returned to the State Supreme Court for further consideration. See Pa......
-
Gaston Bd. of Realtors, Inc. v. Harrison, 8227SC642
...in which Art. I, § 19 has been interpreted to bind private citizens in their relations with one another. See e.g. State v. Avent, 253 N.C. 580, 118 S.E.2d 47 (1961), vacated on other grounds, 373 U.S. 375, 83 S.Ct. 1311, 10 L.Ed.2d 420 (1963). Moreover, in the case of private associations, ......
-
CRIMINAL TRESPASS AND COMPUTER CRIME.
...511. (450.) State v. Goldfinch, 132 So. 2d 860, 861 (La. 1961), rev'd sub nom. Lombard v. Louisiana, 373 U.S. 267 (1963); State v. Avent, 118 S.E.2d 47, 57 (N.C. 1961), vacated, 373 U.S. 375 (1963); Peterson, 122 S.E.2d at 828; Randolph v. Commonwealth, 119 S.E.2d 817 (Va. 1961), vacated, 3......