United States v. Richberg

• Decision Date: 01 August 1968
• Docket Number: No. 24493.,24493.
• Citation: 398 F.2d 523
• Parties: UNITED STATES of America, Appellant, v. A. W. RICHBERG, d/b/a Richberg's Cafe, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 523 (1968)

UNITED STATES of America, Appellant, v. A. W. RICHBERG, d/b/a Richberg's Cafe, Appellee.

No. 24493.

United States Court of Appeals Fifth Circuit.

July 12, 1968.

As Modified on Denial of Rehearing August 1, 1968.

Robert E. Hauberg, Jackson, Miss., David L. Norman, Michael Flicker, Washington, D. C., for appellant.

Gene Brown, R. Dan Coit, Meridian, Miss., for appellee.

Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District Judge.

GOLDBERG, Circuit Judge:

The Civil Rights Act of 1964 with its public accommodation section¹ became the law on July 2, 1964. On April 14, 1966, this action was filed in the federal district court below pursuant to Section 206(a) of the Act. 42 U.S.C. § 2000a-5 (a). The complaint alleged that the policy and practice of Richberg's Cafe was to segregate its customers by race, and to refuse service whenever customers failed to abide by this policy. Injunctive relief was sought. The district court found that Richberg's Cafe was covered by the Act, but it dismissed the suit, determining that the cafe was now a private club within the meaning of 42 U.S.C. § 2000a(e),² and that all of the alleged acts of discrimination occurred prior to the club's creation. The United States has appealed the district court's denial of injunctive relief. We reverse.

Richberg's Cafe is situated along U. S. Highway 11, a main thoroughfare between Meridian, Mississippi, and New Orleans, Louisiana. The trial court found that the cafe was constructed in "southern style." In the present context this meant that the merchandise was displayed in the center along a partition which separated the Negro section, containing four or five stools on the west side, from four or five stools on the east side of this wall for white patrons only. Separate doors were provided for the two races at the front of the building.

Adjoining the cafe were gasoline pumps where Sinclair gas was dispensed to interstate travelers. These travelers sometimes dined in the cafe which was found by the district court to have bought and sold substantial quantities of food originating in interstate commerce. This finding was based on uncontradicted evidence that Richberg's Cafe made meat purchases in significant dollar amounts from a local packing company that acquired approximately 40% of its meat outside Mississippi, and on evidence showing that bread, soft drinks and pastry purchased by the cafe either originated out of state or were made with ingredients that had moved in interstate commerce. These facts, so clearly supported by the record, leave no doubt that Richberg's Cafe falls within the ambit of the 1964 Civil Rights Act.³ What remains to be determined is whether the Dixie Diner Club, hastily established on the premises of Richberg's Cafe subsequent to the initiation of this action, is a bona fide club excepted from the Act by section 201(e).

The facts which determine the nature and characteristics of the Dixie Diner Club have been set out by the district court, and with these limited findings we take no issue. The club is found to have officers, by-laws, rules and regulations. Only members are allowed in the club area, and guests must be and according to the trial court have been accompanied at all times by a member. On the basis of these few facts the district court determined that the Dixie Diner Club "is a club established in good faith for the purpose of complying with this Act." These findings are insufficient.

Whether or not an institution is a "club" within the meaning of section 201(e) is a question of law once the underlying facts have been determined. Such a determination is not an inference discoverable from "experience with the mainsprings of human conduct." Lundgren v. Freeman, 9 Cir. 1962, 307 F.2d 104, 115, but an applicable legal standard whose dimensions must conform to the legislative purpose that prevailed at its inception. Were this not so, the meaning of "club" might change with each new case, and the body of the Act fall victim to its own protean exception.

This is not to say that necessity has bred clarity and that the meaning of the term "club" in section 201(e) is plain for all to see. But in determining whether the facts as found by the district court transformed Richberg's Cafe into a "club" within the meaning of the Act, we are not constrained by the clearly erroneous rule. Rather the correct approach is that of Duquesne Club v. Bell, 3 Cir. 1942, 127 F.2d 363, 364, cert. den., 317 U.S. 638, 63 S.Ct. 30, 87 L.Ed. 514, where the meaning of the term "social club" within the Revenue Act of 1928 was held to be a question of law free from the strictures of Rule 52(a):

"* * * The sole question in this case is whether the Duquesne Club is a social club within the meaning of the statute, there being no claim that it is either athletic or sporting. The suggestion was made at argument that the question is one of fact and that the determination thereof by the trial judge was entitled to the same consideration under Federal Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, given to other findings of fact. This point is not well taken. Findings or stipulations with regard to the use made of club property, the nature of that property, the number of members, etc., are findings of evidential facts, and we accept them, as the rule provides, unless clearly erroneous. But whether, upon facts so found, plaintiff is a social club within the meaning of the taxing statute is a finding not within the rule and is reviewable by this Court. The term `social\' when used in a statute imposing a tax, necessarily becomes a term of art, even though an elusive one. While we make no pretense of being able to give it a definition which will be self-operative to settle other cases, we must, nevertheless, determine as best we can whether the facts bring this club within the term used in the statute. The facts we take from the trial court; the conclusion upon them must be our own."

In other contexts, the existence of a "club" within a statutory scheme has been held to be a question of law, Jeffery v. Planning and Zoning Bd. of Appeals etc., 1967, Conn., 232 A.2d 497, and in Baldwin v. Morgan, 5 Cir. 1951, 287 F.2d 750, 752, Judge Brown said in a segregation case involving injunctive relief: "The fact findings after a full trial come here with the insulation of F.R.Civ. P. 52(a), 28 U.S.C.A. While we reach a conclusion contrary to that of the District Court, we do so on the basis of the facts which are substantially without controversy." This too is our procedure. "We resort to the record not to contradict the trial court's findings of fact, as distinguished from its conclusory `findings,' but to supplement the court's factual findings and to assist us in determining whether they support the court's ultimate legal conclusion * * *." United States v. General Motors Corp., 384 U.S. 127, 141 n. 16, 86 S.Ct. 1321, 1329, 16 L.Ed.2d 415, 424.

Turning to the record we note that the precise natal day of the Dixie Diner Club is uncertain. Although a government witness testified that she thought the "clubroom" was partitioned off about three months prior to trial, Richberg himself testified that the first membership card was not issued until May, 1966 (about one month after suit was filed), and that a card was a prerequisite to membership status. Such cards are apparently issued upon request (with little or no investigation) by any one of several individuals, even though the by-laws require unanimous approval by the Board of Directors. The by-laws also require that officers of the "club" be members of the organization. Yet, Richberg, who styles himself as treasurer, insists he is not a member. Furthermore, several avowed members were even less cognizant of the club's characteristics than Richberg, for they were ignorant not only of the manner in which new members were selected, but of the very name of the club itself. Such stunning dedication among the membership to an organization of which they claim to be a part may arise from the fact that the "club" has never held a meeting.

The Dixie Diner Club, is devoted, in the words of its by-laws, to "The creation of an atmosphere conducive to the development of connoisseurs of discriminating taste and epicurean pleasures and the strengthening of a fraternal fellowship among the members." Given these high purposes, and assuming for the sake of argument that the club was genuine, we would not expect to find, as the record conclusively shows, that the club has maintained the same food, menu, prices and serving personnel as formerly characterized the operations of Richberg's Cafe, and as still characterize the cafe's operations today. In plain words, the clubroom is identical to the cafe in all matters pertaining to food and service. The only material difference between the two relates to their terms of access; physically the club is attainable only by entrance at the door which formerly was for whites only.

Under these circumstances we may appropriately ask whether the club members have fulfilled or at least actively pursued the club's stated objectives. We find the following: In the interest of fellowship they have held no meetings, established no committees, planned no enterprises; in pursuit of culinary excellence, their food is the same as in its pre-club days; in their passion for privacy, they are indifferent to their own by-laws and the method by which new members are chosen; and in their concern for efficiency, they have turned over all of the club's profits and all of its operations to one man. The Dixie Diner Club has no lease, pays no rent, keeps no bank account, elects no officers. The membership fee is one dollar. All indications point to the fact that the club exists only by and through the sufference of Richberg. We cannot close our eyes to these facts. A cafe cannot, by drafting itself a set of by-laws, become an exempt...