State v. Brown

• Decision Date: 06 November 1963
• Citation: 56 Del. 571,195 A.2d 379,6 Storey 571
• Court: United States State Supreme Court of Delaware
• Parties: , 56 Del. 571 STATE of Delaware v. George F. BROWN.

Page 379

195 A.2d 379

6 Storey 571, 56 Del. 571

STATE of Delaware v. George F. BROWN.

Supreme Court of Delaware.

Nov. 6, 1963.

E. Norman Veasey, Chief Deputy Atty. Gen., and G. Francis Autman, Jr., Deputy Atty. Gen., for the State.

Louis L. Redding, Wilmington, for defendant.

TERRY, C. J., and WOLCOTT and CAREY, JJ., sitting.

TERRY, Chief Justice.

On June 12, 1963, defendant, a Negro, entered the premises of the Deer Park Hotel in Newark, Delaware, and requested service of food. The Deer Park Hotel is a privately owned establishment which provides food, drink, and lodging, but the restaurant is separate from the hotel facilities. The proprietor, relying upon 24 Del.C. Sec. 1501, requested the defendant to leave after denying him service solely because of his race, and, upon his refusal to leave, obtained a warrant for his arrest for violation of the criminal trespass statute of this State, 11 Del.C. § 871, which was executed by the Newark Police.

In order to secure a prompt disposition of the Constitutional questions presented, defendant agreed to the immediate filing of this matter in the Superior Court and joined with the Attorney General in petitioning that court to certify the following question to this court:

'May the Judiciary of this State constitutionally entertain a trespass prosecution against a person who is denied service and requested to leave (refusing to do so) a restaurant or other place of public accommodation, which denial of service and requested exclusion are based solely upon the ground that the defendant is colored without ascertainment of his offensiveness to the major part of the customers of the place of public accommodations and injury to business and which action the keeper of such public place of public accommodation is based solely upon the purported authority granted under 24 Del.C. Sec. 1501?'

The question so certified requires us to determine the correlative rights and duties of the owners of public accommodations who seek to deny service to patrons exclusively upon racial grounds and of those patrons who refuse to leave such places upon request by the owner or proprietor. In addition, we are asked to determine whether or not the Judiciary of this State may constitutionally entertain a criminal trespass action against one who refuses to leave a place of public accommodation when such request to leave is predicated exclusively upon the ground that the patron is a Negro.

Included within these questions is a request that we determine the common law obligations of owners of places of public accommodation. At common law, the obligation of an innkeeper to serve the general public was materially different from the duties imposed upon owners of other places of public accommodation. The Attorney General argues that an exposition of this dichotomy is unnecessary since it is clear that defendant was not seeking lodging in the hotel section of the premises in question. However, since the question has been accepted for certification and because of the relationship between the common law and 24 Del.C. § 1501, discussed infra, we deem it necessary to delineate the common law rule.

At common law, an innkeeper was the subject of extensive regulation and legal disabilities. As stated in Halsbury's, Laws of England (3d Ed.), Sec. 938:

'An innkeeper, that is to say at the present day, a hotel proprietor in his capacity as an innkeeper, is bound by the common law or custom of the realm to receive and lodge in his inn all comers who are travellers and to entertain them at reasonable prices without any special or previous contract unless he has some reasonable ground of refusal.' Accord: 29 Am.Jur., Innkeepers, Sec. 48.

It is clear, therefore, that at common law an innkeeper had a positive duty to receive all travellers who conducted themselves with propriety and had the ability to pay for a meal and lodging. It is important, however, to note that this rule of non-discrimination was applied at common law only when an innkeeper-guest relationship arose. An inn or a hotel was defined as 'an establishment held out by the proprietor as offering sleeping accommodations, and, if so required, food and drink, without special contract to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who was in a fit state to be received.' (Halsbury's Laws of England (3d Ed.), Sec. 931.) To be considered a guest, the person was required to be in a transient status and not a resident of the locality immediately surrounding the inn. In addition, the patron must have requested service within the inn or hotel portion of the public facility; the privilege is not available to one who seeks service in a restaurant or tavern owned by the innkeeper but operated as a separate facility. See R. v. Rymer (1877), 2 Q.B.D. 136. It is true that the requirement that the guest be a traveller has been somewhat eroded in more modern cases considering the common law rule. See Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906 (Ct. of Appl., 1946). Therefore, in the instant case, defendant would not come within the innkeeper-guest relationship, since service was not requested within the hotel portion of the Deer Park Hotel.

Apart from the above-cited limited category of public establishments, it is clear that at common law the owner of a restaurant or other place of public refreshment, amusement, or entertainment was free to select patrons upon any basis deemed satisfactory to him. See Halsbury's, Laws of England (3d Ed.), Sec. 941; 29 Am.Jur., Innkeepers, Sec. 9; Alpaugh v. Wolverton, 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 (1963):

'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.'

Having considered the requirements of the common law, we are called upon to construe 24 Del.C. § 1501, which provides:

'No keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travellers, guests, or customers shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers, and would injure his business.'

'As used in this section, 'customers' includes all who have occasion for entertainment or refreshment.'

Defendant argues that the purpose of this statute was the promulgation of a legislative policy favoring the exclusion of Negroes from places of public accommodations. If the statute is so construed, it must be declared an unconstitutional exercise of legislative power by this court. See Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962).

It is a basic rule of statutory construction, previously applied by the courts of this State, that the legislature is presumed to have acted within its constitutional powers. See Delaware Steeplechase and Race Association v. Wise, 2 Terry 587, 41 Del. 587, 27 A.2d 357 (1942); McClelland v. Mayor and Council of Wilmington, 159 A.2d 596 (Del.Ch., 1960); and 16 C.J.S. Constitutional Law, § 99. Accordingly, defendant has the burden of proof of showing the invalidity of the statute. See Philadelphia, B. & W. R. Co. v. Mayor and Council of Wilmington, 30 Del.Ch. 213, 57 A.2d 759 (1948).

In attempting to meet this burden, defendant does not cite any legislative history nor does he draw upon any words from the body of the statute. Reliance is placed upon the fact that the predecessor of the statute was passed in the Reconstruction Era following the Civil War and the opinion of two scholars who believe that the statute was designed to exclude Negroes from places of public accommodation.

We are of the opinion that such facts fall far short of the quantum of proof required to declare a statute invalid. This is especially true since the statute in question was re-enacted by the Legislature in 1953, and it is presumed that the Legislature considered any changes in constitutional law which had occurred subsequent to the passage of the original statute. See Mayor and Council of Wilmington v. Saint Stanislaus Kostka Church, 10 Terry 5, 49 Del. 5, 108 A.2d 581 (1954).

We are now called upon to determine whether or not the statute in question modifies the common law duty of an innkeeper to serve all guests who are orderly and in a position to pay for the requested services. It is true that statutes in derogation of the common law must be strictly construed. See 50 Am.Jur., Statutes, Sec. 402. However, we are required to give weight to all words used in a legislative enactment. We note that the Legislature has utilized both the words 'inn' and 'hotel.' Both of the cited words were used by the common law to describe that establishment which had a common law duty to serve all who entered as guests. See Halsbury's, Laws of England (3d Ed.), Sec. 931, 938. Accordingly, we hold that it was the intention of the Legislature to modify the common law rule requiring an innkeeper to serve all guests, by specifying a limited ground upon which service to a guest could be refused. Since the statute and not the common law is the only source of authority for the actions of an innkeeper in denying service, the terms of the statute thus furnish both the source and the limitation of that power. An innkeeper, therefore, may refuse service to a guest when, in his judgment, the service to such guest would be...