Willis v. Pickrick Restaurant

• Decision Date: 04 September 1964
• Docket Number: Civ. A. No. 9028.
• Citation: 234 F. Supp. 179
• Parties: George WILLIS, Jr., Woodrow T. Lewis, and Albert L. Dunn, Plaintiffs, Robert F. Kennedy, Attorney General, Intervenor v. The PICKRICK RESTAURANT, a Corporation, and Lester G. Maddox, Defendants.
• Court: U.S. District Court — Northern District of Georgia

234 F. Supp. 179

George WILLIS, Jr., Woodrow T. Lewis, and Albert L. Dunn, Plaintiffs Robert F. Kennedy, Attorney General, Intervenor v. The PICKRICK RESTAURANT, a Corporation, and Lester G. Maddox, Defendants.

Civ. A. No. 9028.

United States District Court N. D. Georgia, Atlanta Division.

September 4, 1964.

William H. Alexander, Atlanta, Ga., Jack Greenberg, Constance Baker Motley, and Michael Meltsner, New York City, for plaintiffs.

Charles L. Goodson, U. S. Atty., Atlanta, Ga., St. John Barrett, Justice Dept., Washington, D. C., for the Attorney General.

Sidney T. Schell and William G. McRae, Atlanta, Ga., for defendants.

ORDER DISSOLVING THREE-JUDGE COURT IN CONTEMPT PROCEEDING

No statutory basis appearing for the convening of a three-judge district court to hear civil contempt proceedings ancillary to suits prosecuted under the Civil Rights Act of 1964, 78 Stat. 241, it is accordingly ORDERED and ADJUDGED that the three-judge district court convened for the purpose of hearing the motions to show cause why the defendants in the within matter should not be adjudged in civil contempt for allegedly violating the order heretofore entered in the main case under date of July 22, 1964, D.C., 231 F.Supp. 396, be and the same is hereby dissolved, with all further proceedings as they relate to the civil contempt proceeding to be heard by the district court in due and normal course in its ordinary jurisdiction. See Pendergast v. United States, 1941, 314 U.S. 574, 62 S.Ct. 116, 86 L.Ed. 465, dismissing an appeal from 39 F.Supp. 189 (D.Mo., 1941). cf. Public Service Comm. of State of Missouri v. Brashear Freight Lines, 1941, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083; Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; and Allen v. Prince Edward County, 4 Cir., 1957, 249 F.2d 462, cert. den. 355 U.S. 953, 78 S.Ct. 539, 2 L.Ed.2d 530.

This the 25th day of August, 1964.

(s) Griffin B. Bell Judge, United States Court of Appeals Fifth Judicial Circuit (s) Frank A. Hooper Judge, United States District Court Northern District of Georgia (s) Lewis R. Morgan Judge, United States District Court Northern District of Georgia

ORDER CONTINUING HEARING ON CIVIL CONTEMPT CITATION

For good cause shown, the hearing set on the motions of plaintiffs and the intervenor in the within matter requiring the defendants to show cause why they should not be held in civil contempt for alleged violation of the order entered in this matter on July 22, 1964, is continued, pending further order of this Court.

This the 25th day of August, 1964.

(s) Frank A. Hooper Judge, United States District Court Northern District of Georgia

ORDER DENYING MOTION TO DISSOLVE INTERLOCUTORY INJUNCTION OR, IN THE ALTERNATIVE, TO STAY THE EFFECTIVE DATE THEREOF

After argument, the separate motions of the defendants to dissolve the interlocutory injunction entered in the within matter on July 22, 1964; or, in the alternative, to stay the effective date of the interlocutory injunction entered under date of July 22, 1964, and the effective date of the permanent injunction entered under date of Sept. 4, 1964, are hereby Denied. (Opinion of Judge Bell attached.)

This the 4th day of September, 1964.

(s) Griffin B. Bell Judge, United States Court of Appeals Fifth Judicial Circuit (s) Frank A. Hooper Judge, United States District Court Northern District of Georgia (s) Lewis R. Morgan Judge, United States District Court Northern District of Georgia

GRIFFIN B. BELL, Circuit Judge (specially concurring):

I join in the order denying the within motions but for a reason different from that stated in the opinion of the majority of the Three-Judge District Court which entered the injunction in this case.¹

My views are somewhat similar to those of Judge Hooper as set out then in his specially concurring opinion. As he stated, defendants are bound by that provision of the Civil Rights Act which prohibits discrimination in restaurants offering to serve interstate travelers. In my judgment this was as far as the court needed to go. However, the majority opinion seems to rest largely on that section of the Act, § 201(c), which proscribes discrimination in restaurants where "a substantial portion of the food which it serves * * * has moved in commerce." Because that section of the Act, as applied in this case where there was no proof that the discrimination based on race affected interstate commerce, would seem to embrace every restaurant — no matter how small or remotely located, and no matter that it serves or offers to serve only local customers, this caveat or dissent seems to me appropriate.

A national public accommodations law based on the Fourteenth Amendment was declared unconstitutional in 1883 in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. The Supreme Court was of the view that the Fourteenth Amendment, which is directed at state action, did not reach private enterprise. No question of the law being authorized by the commerce clause of the Constitution was specifically posed. Butts v. Merchants and Miners Transp. Co., 1913, 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422. However, Congress in enacting the Civil Rights Act of 1964 expressly relied on its power to regulate interstate commerce. This power was delegated to Congress by the states. Art. I, § 8, Cl. 3, United States Constitution.

In the course of the past seventy five years Congress has seen fit to regulate private enterprise in several ways and in varying degrees under this power. Examples familiar to all are the antitrust laws, 15 U.S.C.A. § 1 et seq.; labor laws, 29 U.S.C.A. § 151, et seq.; minimum wages and fair labor standards laws, 29 U.S.C.A. § 201 et seq.; and the farm marketing regulations, 7 U.S.C.A. § 1281 et seq. These laws were upheld, respectively, by the Supreme Court in the following cases: Standard Oil Co. of New Jersey v. United States, 1911, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834; N. L. R. B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122.

The theory of regulation by the Congress was said by the Supreme Court in 1922 in the case of Stafford v. Wallace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735, 743, 23 A.L.R. 229, to be:

"* * * Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent."

And it has been settled for many years that the power of Congress to regulate interstate commerce extends to intrastate activities and facilities which affect interstate commerce. N. L. R. B. v. Jones & Laughlin Steel Corp., supra. No doubt the continued use by the Congress of this clause of the Constitution as a repository of power from which it may pass legislation to meet new problems as they arise in our national life stems from the teaching of Chief Justice Marshall who said in 1819 in the case of McCullough v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579, 602-04, that:

"* * * we must never forget that it is a constitution which we are expounding * * *. The Constitution was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." (Emphasis in original.)

But, as the Supreme Court made clear in N. L. R. B. v. Jones & Laughlin Steel Corp., supra, where it recognized the limitation upon the federal power which inheres in the constitutional grant under the commerce clause, and the reservation of power under the Tenth Amendment:

"The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce `among the several States' and the internal concerns of a state. The distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal system. * * *"

Congress, in the exercise of its function under our Federal system, has now barred discrimination based on race or color in restaurants serving or offering to serve interstate travelers. This appears to be well within its power to protect interstate commerce as it relates to interstate travel. Moreover, a substantial argument can be made that it is not unreasonable to extend the reach of that power to others seeking restaurant service at the same restaurant. This would follow from the line of cases recognizing such power where it is not feasible to separate interstate from intrastate activities. Thornton v. United States, 1926, 271 U.S. 414, 46 S.Ct. 585, 70 L.Ed. 1013; Currin v. Wallace, 1930, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; and Southern Railway Company v. United States, 1911, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72.

But what of the local restaurant — one that neither serves nor specifically offers to serve interstate travelers. This is the nub of the constitutional question presented, and the point of difference with the majority of the court entering the injunction. In the second category of coverage, Congress barred discrimination in any restaurant where a substantial portion of the food served has moved in commerce. Judge Hooper stated that the court could take judicial notice of the fact that this would include every restaurant within this state. I agree. Georgia produces no coffee, tea or pepper. It mines no salt, and this is only the beginning of items necessary to restaurant operation. Citrus products, among others, could...