State v. Cobb, 581

• Decision Date: 12 June 1964
• Docket Number: No. 581,581
• Citation: 136 S.E.2d 674,262 N.C. 262
• Parties: STATE, v. Anna COBB, Carson Norwood Sutton and Freeman Nick Oates.
• Court: North Carolina Supreme Court

Page 674

136 S.E.2d 674

262 N.C. 262

STATE, v. Anna COBB, Carson Norwood Sutton and Freeman Nick Oates.

No. 581

Supreme Court of North Carolina.

June 12, 1964

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

Arthur L. Lane and Sylvia X. Allen, Fayetteville, for defendants.

SHARP, Justice.

The defendants' assignments of error present only the question of nonsuit. Other purported assignments do not comply with our Rules 19(3) and 21 as they have repeatedly been interpreted by this Court. Gibbs v. Gaimel, 257 N.C. 650, 127 S.E.2d 271; Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597; see also the annotations to the Rules.

The evidence offered by the State tends to establish these undisputed facts: On June 11, 1963, it was the policy and practice of the Colony Theater to seat Negroes in the balcony and white patrons in the orchestra section. In other words, the Colony was a segregated theater. It had a dual ticket office. From its right side, tickets were sold to whites; from its left, to the colored customers. This arrangement, custom, and rule of the business was well known. The first three tickets sold after 4:00 p. m. on June 11th were sold by the manager, E. S. Wray, to a white man whose identity was unknown to him. These tickets were numbered M-380959, M-380960, M-380961 and were to the downstairs section of the theater. That night while a movie was being shown, the three defendants, all Negroes, appeared in the outer lobby between the ticket office and the first set of doors which gave entrance to the orchestra section and tendered tickets numbered M-380959, M-380960, and M-380961. Wray instructed the ticket taker not to accept their tickets and twice requested the defendants not to enter the downstairs section but to go to the balcony reserved for colored patrons. The three defendants ignored the manager's request and remained in the doorway completely blocking the entrance to the auditorium for seven or eight minutes. He then closed these doors and admitted the line of white patrons into the theater through the exit doors. The defendants moved to this line. A police officer of the City of Fayetteville, who was on the scene, identified himself to the defendants and requested them to surrender their tickets to him, and they did so. The manager again told the defendants not to enter the auditorium but they went past him and sat down. He followed and asked them once more to go to the balcony section. They continued to sit without replying. In the presence of the police he again asked the defendants to go to the balcony; the police made the same request. Again the defendants failed to respond in any manner. The manager then requested the police to arrest and remove the defendants. The officers placed defendants under arrest and left the theater with them. The defendants asked for no refund on the tickets and none was tendered.

The decision of this case is controlled by State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295, and State v. Davis, 261 N.C. 463, 135 S.E.2d 14. It is the law in North Carolina today that the proprietor of a private business has the right to select the clientele he will serve and, if he so desires, he may arbitrarily exclude from his premises any individual or group of individuals. Therefore, he may select his customers or patrons upon the basis of sex, color, creed, or caprice.

This power of selection and exclusion is a right which is protected by law and one which has always been regarded as basic to the institution of private property. A violator of this right is punished as provided in G.S. § 14-134. Such a right, without remedy of enforcement by law, would be no right at all--merely an invitation to an invasion by superior force with resulting violence and anarchy. The removal of a trespasser, whether he be white or Negro, from an owner's premises by the police does not constitute state action to enforce segregation and is not prohibited by the Fourteenth Amendment to the Federal Constitution. This contention of the defendants was decided adversely to them in State v. Davis, supra, and State v. Williams, 253 N.C. 804, 117 S.E.2d 824, petition for cert. filed, 29 U.S.L.Week 3319 (U.S. April 20, 1961) (No. 915). The law does not look to the motive of the proprietor, but to the wrongful invasion of his property and to the disturbance of his right to undisputed possession. 37 N.C.L.Rev. 73, 76.

In a similar case in Maryland in which defendants contended that their arrest and conviction for trespass was unconstitutional enforcement by the State of Maryland of racial segregation, the Court of Appeals said:

'As we see it, the arrest and conviction of these appellants for a criminal trespass as a result of the enforcement by the operator of the park of its lawful policy of segregation, did not constitute such action as may fairly be said to be that of the State. The action in this case, as in Drews (Drews v. State, 224 Md. 186, 167 A.2d 341), was also 'one step removed from State enforcement of a policy of segregation and violated no constitutional right of appellants.' ' Griffin v. State, 225 Md 422, 171 A.2d 717, cert. granted, 370 U.S. 935, 82 S.Ct. 1577, 8 L.Ed.2d 805.

The Clyburn, Davis, and Williams cases, cited above, involved a lunch counter, restaurant and soda fountain respectively. However, it is equally well settled that in the control of his own business, the proprietor of a privately owned place of amusement may admit or exclude any person for any reason satisfactory to himself or for no reason whatever. In the absence of civil rights legislation, and North Carolina has none, the law imposes no obligation upon the owner or proprietor of a theater or other public amusement with respect to whom he shall admit or exclude. Unlike a public utility, his business is not affected with a public interest, and he is under no legal obligation to admit every person who applies and is ready to pay the price of admission. 52 Am.Jur., Theaters, Shows, etc. § 6; 10 Am.Jur. Civil Rights § 22; Terrell Wells Swimming Pool v. Rodriguez, Tex. Civ.App., 182 S.W.2d 824. His license to operate is not a franchise for 'with the possible exception of ancient Rome--amusement of the populace has never been regarded as a function or purpose of government.' Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E.2d 697, 1 A.L.R.2d 1160, cert. denied, 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346.

'Historically, apart from 'innkeepers,' 'public carriers,' and the like, the proprietor of a business can deal with his patrons as he likes--denying service to some and not to others. This...