State v. Sprague

• Decision Date: 30 April 1964
• Citation: 105 N.H. 355,200 A.2d 206
• Parties: STATE v. Charles C. SPRAGUE.
• Court: New Hampshire Supreme Court

Page 206

200 A.2d 206

105 N.H. 355

STATE v. Charles C. SPRAGUE.

Supreme Court of New Hampshire.

Argued Feb. 4, 1964.

Decided April 30, 1964.

William Maynard, Atty. Gen., and Alexander J. Kalinski, Asst. Atty. Gen., for the State.

John C. Driscoll, City Solicitor and Keesler H. Montgomery, Boston, Mass., on the brief, for city of Portsmouth.

Griffin, Harrington, Brigham & Taylor, Alvin E. Taylor, Portsmouth, for defendant.

Gordon M. Tiffany, Concord, on the brief, amicus curiae.

KENISON, Chief Justice.

Discriminatory advertising relating to places of public accommodation, including barber shops, has been prohibited in this state and made a penal offense since 1919. RSA ch. 354; Laws 1919, c. 27. By amendatory legislation in 1961 (Laws 1961, c. 219) this statute was broadened and extended to prohibit discrimination in places of public accommodation including barber shops and in certain rental housing. RSA ch. 354 (supp). The criminal penalty for violation is a fine 'not less than ten nor more than one hundred dollars.' RSA 354:4 (supp). Conviction of discrimination 'may not be used as evidence in a civil action for damages or as a basis for such a civil action in any manner whatsoever.' RSA 354:5 (supp).

The statute upon which the criminal complaint is founded reads as follows: 'Discrimination. No person shall directly or indirectly discriminate against persons of any race, creed, color, ancestry or national origin, as such, in the matter of board, lodging or accommodations, privilege or convenience offered to the general public at places of public accommodation or in the matter of rental or occupancy of a dwelling in a building containing more than one dwelling.' RSA 354:1 (supp). The definition of a place of public accommodation includes a barber shop. 'Definition. A place of public accommodation, within the meaning hereof, shall include any inn, tavern or hotel, whether conducted for entertainment, the housing or lodging of transient guests, or for the benefit, use or accommodation of those seeking health, recreation or rest, and restaurant, eating house, public conveyance on land or water, bathhouse, barber shop, theater, and music or other public hall.' RSA 354:2.

For the purposes of this case only, in considering the defendant's motion to quash the complaint, the parties have assumed the facts stated in the criminal complaint to be true. The fundamental issue presented by the defendant's preliminary motion is whether the State may constitutionally forbid discrimination in places of public accommodation, since the motion to quash does not question that the barber shop is a place of public accommodation. Our consideration of the issue presented is accordingly restricted to determination of whether the statute may constitutionally be applied to a barber shop which is concededly a 'place of public accommodation' as the term is commonly understood. Markham v. Brown, 8 N.H. 523; Civil Rights Cases, 109 U.S. 3, 40, 3 S.Ct. 18, 27 L.Ed. 835 (dissenting opinion). See Arterburn, The Origin and First Test of Public Callings, 75 U.Pa.L.Rev. 411. In this case it is unnecessary to determine whether the statute may constitutionally be applied to other places included in the statutory 'definition' (RSA 354:2) or to multiple dwelling rental housing. RSA 354:1 (supp).

While a state may not be required to enact a statute forbidding discrimination in privately owned places of public accommodation, it unquestionably has the power to do so. Railway Mail Ass'n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed 2072; District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; Greenberg, Race Relations and American Law, 101-107 (1959). 'Nor does there remain much basis for questioning the constitutionality of statutes applying to public accommodations * * *.' Note, The Right to Equal Treatment: Administrative Enforcement of Anti-discrimination Legislation, 74 Harv.L.Rev. 526, 586 (1961). The defendant's contention that the New Hampshire statute (RSA 354:1, 2 (supp)) prohibiting discrimination in places of public accommodation including barber shops violates the due process clause of the Fourteenth Amendment has been rejected by the rationale of the authorities cited above as well as a majority of the cases of an earlier vintage. People v. King, 110 N.Y. 418, 18 N.E. 245, 1 L.R.A. 293; Pickett v. Kuchan, 323 Ill. 138, 153 N.E. 667, 49 A.L.R. 499; Bolden v. Grand Rapids Operating Corp., 239 Mich. 318, 214 N.W. 241, 53 A.L.R. 183; Annot. 49 A.L.R. 505; 87 A.L.R.2d 120, 165.

The defendant claims a violation of the equal protection clause of the Fourteenth Amendment because it applies to barber shops but not expressly to certain other businesses. Historically barber shops have been equated with places of public accommodation from an early date. Messenger v. State, 25 Neb. 674, 41 N.W. 638 (1889); 4 Hart, Commonwealth History of Massachusetts 584 (1930); Fox, Discrimination and Anti-Discrimination in Massachusetts Law, 44 B.U.L.Rev. 30, 59 (1964); Annot. 87 A.L.R.2d 120, 165. 'There is no constitutional requirement that regulation must reach every class to which it might be applied--that the Legislature must regulate all or none. * * * The state is not bound to cover the whole field of possible abuses.' H. P. Welch Co. v. State, 89 N.H. 428, 432, 199 A. 886, 889, 120 A.L.R. 282. The Legislature may hit the evils it considers ripe for correction without enumerating the lesser ones if there is a rational basis for the regulatory classification. Manchester Fed. Sav. & Loan Ass'n v. State Tax Commission, 105 N.H. 17, 191 A.2d 529. It is unlikely that any rational and bona fide legislative attempt to reduce discrimination would be declared in violation of the Fourteenth Amendment. Compare Colorado Anti-Discrim. Comm. v. Continental Air Lines, 372 U.S. 714, 721, 83 S.Ct. 1022, 1026, 10 L.Ed.2d 84: '[A]ny state or federal law requiring applicants for any job to be turned away because of their color would be invalid under the Due Process Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.' While this case involved interstate commerce, it indicated a hospitable attitude in favor of a state statute prohibiting discrimination in the hiring of pilots by an interstate air carrier. We see no violation of the equal protection clause of the Fourteenth Amendment in the provisions of RSA ch. 354 (supp). Comment, Equal Protection and Discrimination in Public Accommodations, 32 Fordham L.Rev. 327 (1963).

The defendant argues that the statute prohibiting discrimination by barbers on account of race subjects him to forced labor and constitutes involuntary servitude under the Thirteenth Amendment. There is some support for this view in occasional dicta, dissenting opinions and comment. Browning v. Slenderella Systems, 54 Wash.2d 440, 454-457, 341 P.2d 859 (dissenting opinion); Avins, Freedom of Choice in Personal Service Occupation: Thirteenth Amendment Limitations on Antidiscrimination Legislation, 49 Cornell L.Q. 228 (1964). We have discovered little...