State v. Clyburn

• Decision Date: 10 January 1958
• Docket Number: No. 650,650
• Citation: 101 S.E.2d 295,247 N.C. 455
• Parties: STATE, v. Mary Elizabeth CLYBURN STATE v. Claud Edward GLENN. STATE v. Jesse Willard GRAY. STATE v. Vivian Elaine JONES. STATE v. Douglas Elaine MOORE. STATE v. Melvin Haywood WILLIS. STATE v. Virginia Lee WILLIAMS.
• Court: North Carolina Supreme Court

Page 295

101 S.E.2d 295

247 N.C. 455

STATE, v. Mary Elizabeth CLYBURN

STATE v. Claud Edward GLENN.

STATE v. Jesse Willard GRAY.

STATE v. Vivian Elaine JONES.

STATE v. Douglas Elaine MOORE.

STATE v. Melvin Haywood WILLIS.

STATE v. Virginia Lee WILLIAMS.

No. 650

Supreme Court of North Carolina.

Jan. 10, 1958

Atty. Gen. George B. Patton and Asst. Atty. Gen. Ralph Moody for the State.

William A. Marsh, Jr., M. Hugh Thompson, C. O. Pearson, and F. B. McKissick, Durham, for defendant appellants.

RODMAN, Justice.

The questions propounded by appellants as arising on the assignments of error may be stated as follows: (1) Must a property owner engaged in a private enterprise submit to the use of his property by others simply because they are members of a different race? (2) Was there error in the charge as to what sufficed to constitute a violation of G.S. § 14-134?

The questions are stated in the order of priority selected by appellants and are accordingly so treated.

There is no substantial dispute with respect to the facts. L. A. Coletta, with his partner, owned a building at the corner of Roxboro and Dowd Streets in Durham. There they did business under the name of Royal Ice Cream Company, retailing ice cream and sandwiches. The building is separated by partition into two parts. One part has a door opening on Dowd Street; the other portion has a door opening on Roxboro Street. Each portion is equipped with booths, a counter, and stools. Over the Roxboro Street door is a large sign marked 'White,' and over the Dowd Street door is a similar sign marked 'Colored.' Sales are made to members of the different races only in the portions of the building as marked.

Defendant Moore is pastor of Asbury Temple, a Methodist Church located on Braswell Street, a mile or mile and a half from the business conducted by Royal Ice Cream Company. Defendants gathered at the church to discuss the 'plight of employment of qualified Negro young people.'

Led by defendant Moore, they went from the church to the Royal Ice Cream Company, parked their car to the rear of the establishment and proceeded through the back door to the portion of the store set apart for white patrons. Defendant Moore gave orders to the clerk for each of the defendants. The clerk refused to serve defendants and called the manager.

Moore testified: 'Then Mr. Coletta talked to me and said he did not want to cause any trouble but he wanted us to leave, but I said, as a Christian, I cannot possibly leave, that we wanted to be served as American citizens and above all, as persons who believe in the Lord Jesus Christ. * * * We spoke in voices so that other people could hear, that is, other people in the room. Mr. Barnhill (a police officer) told me that I was under arrest. However, he said if we would leave he would not arrest us, but I told him, as a Christian, and believing that the power of the Church is above the State, and that's where the State gets its ultimate power, and that as American citizens, that we could not leave without doing damage to the Constitution. I could not leave. Mr. Coletta told us that he would serve us on the colored side but not on the white side.'

The evidence shows the partitioning of the building and provision for serving members of the different races in differing portions of the building was the act of the owners of the building, operators of the establishment. Defendants claim that this, separation by color for service, is a violation of their rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Defendants, by motion first made in the Superior Court, sought to quash the warrant. This motion, made after conviction and while the cases were pending on appeal, was addressed to the discretion of the court. The court did not abuse its discretion in overruling the motion. State v. St. Clair, 246 N.C. 183, 97 S.E.2d 840; State v. Gales, 240 N.C. 319, 82 S.E.2d 80; Miller v. State, 237 N.C. 29, 74 S.E.2d 513 (certiorari denied 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1360); State v. Suddreth, 223 N.C 610, 27 S.E.2d 623; State v. Beard, 207 N. C. 673, 178 S.E. 242.

While defendants did not properly preserve their right to assert constitutional protection by the motion to quash, nevertheless, if the evidence, as defendants claim, establishes that defendants were merely exercising their constitutional rights, punishment for so acting should not be inflicted and defendants' motion to nonsuit should have been allowed.

Our Statutes, G.S. §§ 14-126 and 134, impose criminal penalties for interfering with the possession or right of possession of real estate privately held. These statutes place no limitation on the right of the person in possession to object to a disturbance of his actual or constructive possession. The possessor may accept or reject whomsoever he pleases and for whatsoever whim suits his fancy. When that possession is wrongfully disturbed it is a misdemeanor. The extent of punishment is dependent upon the character of the possession, actual or constructive, and the manner in which the trespass is committed. Race confers no prerogative on the intruder; nor does it impair his defense.

The Fourteenth Amendment to the Constitution of the United States created no new privileges. It merely prohibited the abridgment of existing privileges by state action and secured to all citizens the equal protection of the laws.

Speaking with respect to rights then asserted, comparable to rights presently claimed, Mr. Justice Bradley, in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 21, 27 L.Ed. 835, after quoting the first section of the Fourteenth Amendment, said: 'It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state laws and state acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon congress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation or state action, of the kind referred to. It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of state officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the fourteenth amendment; but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect.'

In United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 609, 27 L.Ed. 290, the Court, quoting from United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 said: 'The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, and no more. The power of the national government is limited to this guaranty.'

More than half a century after these cases were decided the Supreme Court of the United States said in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 842, 92 L.Ed. 1161, 3 A.L.R.2d 441: 'Since the decision of this Court in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.' This interpretation has not been modified: Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; District of Columbia v. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; Williams v. Yellow Cab Co., 3 Cir., 200 F.2d 302, certiorari denied Dargan v. Yellow Cab Co., 346 U.S. 840, 74 S.Ct. 52, 98 L.Ed. 361.

Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, 14 A.L.R.2d 133, presented the right of a corporation, organized under the New York law to provide low cost housing, to select its tenants, with the right to reject on account of race, color, or religion. The New York Court of Appeals affirmed the right of the corporation to select its tenants. The Supreme Court of the United States denied certiorari, 339 U.S....