State v. Katz, No. 47425.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HAYS
• Citation: 241 Iowa 115,40 N.W.2d 41
• Parties: STATE v. KATZ.
• Decision Date: 13 December 1949
• Docket Number: No. 47425.

241 Iowa 115
40 N.W.2d 41

STATE
v.
KATZ.

No. 47425.

Supreme Court of Iowa.

Dec. 13, 1949.

M. C. Katz was convicted in Municipal Court, Des Moines, Iowa, Harry B. Grund, J., of violating the Civil Rights Statute by refusing to serve a colored person at a soda fountain in a drug store, and he appealed.

The Supreme Court, Hays, C. J., held that information charged a crime under statute, that evidence to show policy of defendant to refuse service to colored people was admissible, that objection to statement of counsel in argument to jury was properly overruled, and that no error was made in the giving and refusing of instructions, and affirmed the judgment.

[40 N.W.2d 42]

Gamble, Read, Howland, Gamble & Riepe, John H. Martin and C. A. Leland, III, Des Moines, Paul R. Stinson and Dick H. Woods, Kansas City, Missouri, for appellant.

Robert Larson, Attorney General, Edwin S. Thayer, County Attorney, Polk County, Des Moines, Paul C. McDonnell, Assistant County Attorney, Polk County, Des Moines, for appellee.

HAYS, Chief Justice.

The defendant M. C. Katz was accused of the crime of infringement of Civil

[40 N.W.2d 43]

Rights and on a trial to a jury, was found guilty. The information was in substance as follows: ‘That the defendant * * * did unlawfully and willfully and feloniously infringe upon the civil rights of one John Bibbs by refusing to serve him at the soda fountain in violation of Section 735.1, Code of 1946 [I.C.A.]’. Prior to a trial upon a plea of not guilty, a demurrer to the Information and a motion to quash was overruled. The defendant appeals.

Appellant is the manager of the Katz Drug Store in Des Moines, Iowa. This store operates a lunch counter at which food and soft drinks are served to the general public, this being a department of the drug store. On July 7, 1949, three Negroes, John Bibbs, Edna Griffen and Leonard Hudson went to the Katz store, where two of them, Bibbs and Mrs. Griffen, took seats at the soda fountain. The three, as witnesses for the State, testify in substance that, after waiting for a few moments, a waitress took their order and as she started to fill them, a boy whispered something to her and she then informed the witnesses that ‘We don't serve colored’; that they asked to see the manager and a Mr. Gore, fountain manager, came to the fountain. Upon being asked why they were not served, stated ‘that it is the policy of our store that we don't serve colored; we don't have the proper equipment’. The general manager, the defendant M. C. Katz, was called to the fountain and when asked why they were not being served, stated ‘I cater to a large body of white trade and don't have the proper equipment to serve you.’ Both Mrs. Griffen and John Bibbs state that they did request service of either Mr. Gore or Mr. Katz. Mr. Hudson states that he stated to Mr. Katz that he desired a drink at the fountain.

Appellant Katz and Mr. Gore appeared as witnesses for the appellant. They each state that the three Negroes created a disturbance and that in such a situation, when a disturbance is created, whether they be white or black, ‘we don't serve them.’ A fair deduction from the record is to the effect that Negroes have never been served at the fountain in the Katz store. It also is a fair deduction, that the three Negroes, all members of Progressive Party of Iowa, by pre-arrangement went to the Katz store for the purpose of making a test case in the event that they were denied service.

1. Appellant assigns as error the overruling of the demurrer to the information, asserting that the same does not charge a crime. Section 735.1, Code 1946, I.C.A., provides: All persons within this state shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, restaurants, chophouses, eating houses, lunch counters, and all other places where refreshments are served, public conveyances, barber shops, bathhouses, theaters, and all other places of amusement.' Section 735.2, Code of 1946, I.C.A., states: ‘Any person who shall violate the provisions of section 735.1 by denying to any person, except for reasons by law applicable to all persons, the full enjoyment of any of the accommodations, * * *, or by aiding or inciting such denial, shall be guilty of a misdemeanor * * *.’ (The italics supplied.)

It is appellant's claim that an Information which does not negative the exception in the statute, noted above, fails to state a crime. The case of State v. Hall, 72 Iowa 525, 34 N.W. 315, is cited as authority for this position and it holds just that, but appellant overlooks Chapter 266, Acts 43rd G.A. of Iowa, Sections 773.2 to 773.34, incl.,...