Boynton v. Virginia – Oral Argument – October 12, 1960 (Part 1)

Media for Boynton v. Virginia

Audio Transcription for Oral Argument – October 12, 1960 (Part 2) in Boynton v. Virginia

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Earl Warren:

Number 7, Bruce Boynton, Petitioner, versus Virginia.

Mr. Marshall.

Thurgood Marshall:

Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to review the decision of the Supreme Court of Appeals of Commonwealth of Virginia, which, in turn, had denied petition for writ of error, to review the judgment of the Hustings Court of Richmond, Virginia.

The facts in the case are rather simple and not in dispute.

On December 20, 1958, petitioner, a Negro law student from Howard University here in Washington was en route home to Selma, Alabama on his Christmas vacation.

He boarded the Trailway Bus here in Washington, D.C. and en route to Selma, Alabama the bus made a routine stop at approximately 10:40 p.m. in Richmond, Virginia.

The bus drove up, the Trailways Bus, drove up to the Trailways Bus Terminal in Richmond and announced that there would be a 40-minute layoff.

The petitioner being hungry and anxious to eat before reboarding, he went into the terminal.

There were two restaurants there.

One marked for white persons and one for colored.

The petitioner testified that the colored restaurant appeared to be crowded.

Now, here the Commonwealth disputes that because the testimony of the Assistant Manager was that at some time after when this whole incident was going along, he noticed that it was not crowded.

So the question that I submit is, I think we will show later as immaterial anyhow.

The petitioner testified that after he noticed, it appeared to him that this Negro place was crowded, he proceeded to the other restaurant, which was not crowded, and there’s no dispute on that, the other was not crowded and he took one of the vacant stools, sat down, and one of the waitresses approached him and told him that he should go over to the other restaurant and the petitioner told her that the facilities in other restaurant appeared to be crowded.

He was an interstate commerce passenger and that he should be served in restaurant — this restaurant.

After some discussion, the waitress suggested that he purchase a prepared sandwich.

He therefore ordered one of these prepared sandwiches and a cup of tea.

The waitress returned to him and said, she couldn’t serve him and she had orders not to serve him.

He explained again that he was an interstate passenger and should be served.

The waitress went away again and this time she came back with Assistant Manager who later testified and hearing the petitioner testified, he showed the Assistant Manager his ticket that he had a right to eat there.

The Manager asked him to move out.

There’s no question all along in this that the whole basis of asking him to move and the whole basis of refusing to serve him in this restaurant was because of his race.

At this stage, the manager went out and returned with a policeman.

Then there’s some conflict between the testimony of the Assistant Manager and the petitioner in this case as to exactly what happened.

That is whether the petitioner went out and came back or whether the manager went out with a policeman, but it’s significant that the manager’s testimony says that he reported to the policeman at that point the petitioner was creating a disturbance.

The policeman came in, there’s no question about that.

That the policeman entered in — entered into the discussion, trying to persuade the petitioner to move over to the other restaurant and I emphasize this because later on in this argument, we hope to get to the question of state action.

The state action moves in at this point that the Assistant Manager and the police are jointly trying to persuade petitioner to be segregated.

And the petitioner says, he has a right to eat there and he wants to eat there.

Thurgood Marshall:

The policeman then asked the manager, “Do you want him arrested? Do you want to get a warrant for him?”

The manager says, “Not unless he refuses to go.”

Then he did get the warrant and got — the manager straight got the warrant and the petitioner was arrested and put in jail.

The warrant — the original trial was based on the fact that he was a trespasser, but you’ll notice in the record that this trespass allegation was immediately amended to provide that it was one of these trespass cases where he refused to move after being told.

And the statute which we set forth on page four of our brief, the one under which Boynton was convicted, is if any person shall without authority of law go upon or remain upon the lands or premises of another after having been forbidden to do so by the owner’s, let’s say custodian or other person lawfully in-charge of such land, or having been forbidden to do so by a sign or sign posted on the premises at a place or places where they maybe reasonably seen, he shall be deemed guilty of a misdemeanor and upon conviction there to be punished by a fine of not more than $100 or by confinement in jail not exceeding 30 days or both.

And it’s a theory of the prosecution in this case that he was guilty of violating this statute because in fact he didn’t move when first asked to be moved.

Now, as I see it the facts in this case add up to this.

There was no dispute that the petitioner was an interstate passenger.

As a matter of fact his ticket was tendered in the Court and that he not only was an interstate passenger, but he was actually in passage between Washington and Selma, Alabama.

This was an interrupted passage.

The bus — the Trailways Bus stopped at the Trailways Bus Terminal and all of this were on the property of the Trailways Bus Terminal.

Charles E. Whittaker:

Now, do you mean to say that this (Inaudible) — this warrant is not to be filed (Inaudible)?

Thurgood Marshall:

The record shows in this case that the bus company — the restaurant was owned and operated by the restaurant company under a lease from the Trailways Bus Terminal.

That’s what the record shows.

Charles E. Whittaker:

And do you present that this was the question to be contested Mr. Marshall?

Thurgood Marshall:

I do not claim that on the facts that are in the record, I do not claim that the bus company owned the restaurant or controlled it as such.

But this Court when the petition for certiorari was filed requested the State of Virginia to furnish whatever evidence they had and it’s whether or not judicial notice could be taken to the fact.

And the Commonwealth replied that there was no — there was no documents which the Supreme Court of Virginia should take cognisance of.

However, the United States, as amicus curiae, has produced to this Court, the documents of the Interstate Commerce Commission which do show that control.

I admit quite frankly that so far as the record is concerned, it’s not there, but so far as the present posture of this case is concerned, it is there because it’s certainly in the brief of the United States and if there is any dispute as to it, you have it in here representing the Commonwealth today not only the Assistant Attorney General, but also the lawyer from the restaurant and he knows who controls it.

Charles E. Whittaker:

Well, did you say that the — I heard you say (Inaudible)?

Thurgood Marshall:

The body — the —

Charles E. Whittaker:

By that, do you mean the belief itself or —

Thurgood Marshall:

No sir.

It’s the report — the regular report was acquired by law to be made to the Interstate Commerce Commission and a certified copy of that is there.

I don’t, at this stage and to this point I don’t rely on the brief.

I rely on that which is a regular report filed in the Interstate Commerce Commission and shows that the Trailways Bus Company owns 50% of the share.

Felix Frankfurter:

Mr. Marshall does your case rest on the assumption that this Court must take judicial notice of a document filed with the Interstate Commerce Commission —

Thurgood Marshall:

No sir.

Felix Frankfurter:

— under law, if you’re under law, which was not introduced and it came into the case (Inaudible)?

Thurgood Marshall:

No sir, I certainly do not take that position.

Felix Frankfurter:

Now, I suppose one had a difficulty about taking a judicial notice of that document.

Thurgood Marshall:

If the Court has difficulty —

Felix Frankfurter:

Well that the case in this Court, it’s briefly coupled by getting notice of publicly filed document in a utility hearing without (Inaudible) has violated the due process, that you can’t take notice, judicial notice on that.

Thurgood Marshall:

Well under the, Mr. Justice Frankfurter, the Lilly case, Lilly versus Grand Trunk, which was the one where this Court took notice, despite the fact that the lower courts have not, of ICC regulation but it was a regulation and it’s a lot different —

Felix Frankfurter:

(Voice Overlap)

Thurgood Marshall:

— it’s entirely different.

I take the position sir that as the — obviously from the lawyers of the petitioner, and I would’ve been in an agreement with them, it was their theory that this case was governed more by the Morgan case and under the theory of the Morgan case, which I will get to, it’s not necessary to show that the carrier actually controls.

The difference as I see it is that under the Commerce Clause itself, we would not be obliged to show that the carrier actually controlled the restaurant, if in fact the restaurant can be shown to interfere with the flow of commerce.

Under the Interstate Commerce Act, and particularly the motor carriers division, it does limit into a terminal that is controlled by the carrier, but I see not too much difference between the argument which we could make for the clause or the act for this reason.

I don’t believe that Congress, in saying specifically that we will legislate on terminals controlled by the — or carrier, meant to exclude all other terminals.

For example —

Felix Frankfurter:

And we are not talking without —

Thurgood Marshall:

Yes.

Felix Frankfurter:

— without an application of the Act.

Thurgood Marshall:

Yes sir and I think I have to do that before I get to the clause, because I want —

Felix Frankfurter:

Why — why — I don’t see — quite see that.

Thurgood Marshall:

Well as the —

Felix Frankfurter:

If the Act takes care of you, why do you go to the Clause?

Thurgood Marshall:

Well the Act will only take care of me sir if we have this other document in here.

Felix Frankfurter:

You are having that document presently with the Act, how do you have it for the purpose of the Clause?

Thurgood Marshall:

I don’t need the document for the purpose of the Clause if — if I may just a moment.

I first have to show for the Commerce Clause that either Congress is legislated and I worked with the legislation or that Congress is not legislative.

In the Morgan case, this Court held that Congress is not legislating on the question of separation of the races by the carrier, and then that there should be a national policy or uniformity.

And on this case, the argument as made by the other side is that since this is the Motor Carrier Act said that terminals controlled by the carrier are covered that they meant to exclude other — all other terminals, and if their position is right, then I have difficulty with the — with getting under the clause.

But the point I was trying to make at this stage is that I don’t believe Congress intended, because here’s what you would have —

Felix Frankfurter:

They were intended to restrict.

Thurgood Marshall:

Yes sir.

I don’t think Congress did, because you take in a town like Richmond, Virginia where this occurred, assuming there were two identical bus terminals, one owned by — one owned by Trailway Bus and one with no control, but used solely by Grayhound Bus Company with identical facilities, I don’t think Congress meant that one was controlled and the other was not.

Felix Frankfurter:

I in fact joined in the Morgan opinion.

Felix Frankfurter:

I think I can ask you why the Court said, why opinion says that Congress had not (Inaudible) statute.

Thurgood Marshall:

It’s — it’s said that specifically —

Felix Frankfurter:

I — I know it did and I joined in it, and I would ask you why it did.

Thurgood Marshall:

The only — it’s in the concluding paragraph where the mere statement is made — but if you give me just a moment may it please the Court, it’s spelled here.

Felix Frankfurter:

Morgan came after Mitchell, isn’t it?

Thurgood Marshall:

Yes sir.

Felix Frankfurter:

That’s what I’m asking to clear about it.

Thurgood Marshall:

And in Morgan there was the — the Act was not involved in the — the Fourteenth Amendment was abandoned —

Felix Frankfurter:

By who?

Thurgood Marshall:

I think by the petitioner.

Felix Frankfurter:

Well don’t let it take your time.

Thurgood Marshall:

Let’s spell it.

Felix Frankfurter:

Don’t let it take your time.

Thurgood Marshall:

I think what the — the concluding paragraph —

Felix Frankfurter:

The reason for my question as so explained to you —

Thurgood Marshall:

Yes sir.

Felix Frankfurter:

But no use to you, but I don’t want to — I don’t — I think it’s my duty not to reach the constitutional question but their concern.

Thurgood Marshall:

That’s the only reason I’m arguing the Commerce Clause.

I would prefer to —

Felix Frankfurter:

Why just (Voice Overlap) — statute the way you’ve argued for that thing.

Thurgood Marshall:

The statute I — I — the — the only reason I was arguing the statute was because if the statute covers it I can’t argue the Board Clause.

Felix Frankfurter:

What I’m saying is — I don’t quite appreciate why you have abandoned reference to the statute in your petition for certiorari?

Thurgood Marshall:

The reason we abandoned it was that at the time of petition for certiorari we had a record and we realized that there was nothing in the record which shows the nexus between the terminal and the carrier.

Felix Frankfurter:

Is there yet?

Thurgood Marshall:

Is there yet?

Felix Frankfurter:

Yes.

Thurgood Marshall:

It’s —

Felix Frankfurter:

Between the restaurant and carrier.

Thurgood Marshall:

Between the restaurant and the carrier in the record it is not there.

Felix Frankfurter:

Well leaving as to — assume without this in Court which the amicus was included in its brief, there’s one complete judicial notice, does if applied the (Inaudible) in showing nexus between the carrier and the restaurant as between this from the point.

Thurgood Marshall:

It shows that the carrier owns 50% of the terminal which leases to the restaurant with the controlled lease which is in the record.

Charles E. Whittaker:

What do you mean by controlled lease?

Thurgood Marshall:

It says for example that you, they regulate everything in there that any body could possibly regulate.

Charles E. Whittaker:

(Inaudible)

Thurgood Marshall:

It — it might be an ordinary common type of lease for a bus terminal, but the lease as specifically on page 14 that it must be maintained and an up to date modern bus terminal type.

And then it says a little low, neither the lessee nor its point should be allowed to perform any terminal service.

This is a terminal bus restaurant lease.

It is not the run of the mill lease that you give for an ordinary restaurant in town.

Felix Frankfurter:

If this restaurant had been on independent (Inaudible) if this restaurant were off the terminal ground in a separate building (Inaudible) you would have a different case, I take it?

Thurgood Marshall:

I would have a very different case.

Felix Frankfurter:

You would?

Thurgood Marshall:

Yes sir because the restaurant across the street would not be in the flow of commerce.

Charles E. Whittaker:

Do you mean by that the states in external and not the plaintiff (Inaudible) for the individual plaintiff (Inaudible) than the (Inaudible)

Thurgood Marshall:

Yes sir.

It could be.

But that it could not be open to the public.

Charles E. Whittaker:

By these opponents by section of (Inaudible) I take you that in this case.

Thurgood Marshall:

I don’t know of whether (Inaudible) would be considered as normal in interstate commerce but eating is.

I think sir that the important thing is that eating is a normal result of interstate transportation and has been recognized by this Court as such, but by enclose it would not be.

Charles E. Whittaker:

In other words you as I understand it, that the owner of a transportation (Inaudible) is not denied and its focused by (Inaudible) for the restaurant for one purpose independently after the owner of the —

Thurgood Marshall:

I — I think possibly he could, but my point is not that the terminal alone.

My point which I was trying to get to on this, on Mr. Justice Frankfurter’s question, is that if this restaurant is set up for the purpose of serving food to interstate passengers —

Charles E. Whittaker:

(Inaudible)

Thurgood Marshall:

By anybody.

Charles E. Whittaker:

Well now, by — by anybody.

Thurgood Marshall:

Yes sir and if — if that is the purpose of the facility to facilitate the flow of commerce then it cannot escape the Interstate Commerce Clause.

The restaurant across the street is not for that purpose and I submit that in this case, it’s quite obvious why they’re on the bus terminal is to keep people from going across the street and being out of hand and you can’t keep them there so you — they’ll be there to board in the bus too.

So, if they go across the street and something happens to them, there’s a possibility of suit for injury and they have set this up as a — this is the Trailways Bus Terminal, it’s not the Trailways shopping center or the Trailways restaurant, it’s a bus terminal and I submit that in that bus terminal, that restaurant is on the same basis as the restrooms, the waiting rooms, the ticket window.

Charles E. Whittaker:

In other words, it’s all public bus terminals.

Thurgood Marshall:

Yes sir.

Charles E. Whittaker:

That should be ignored to try and denied section of the facilities if it placed upon dues.

Thurgood Marshall:

I would say that if the — there is a bus terminal which has all of these facilities then in addition, it has something else possibly, I don’t know.

But if it — if it’s not intended to be in commerce, because in this case we’ve got a facility that’s intended if the bus company, if the Trailway Bus Company served sandwiches on that bus they could not segregate point while he ate, so they stopped to give him sandwiches, they can’t segregate.

That’s true.

Charles E. Whittaker:

But are they (Inaudible)?

Thurgood Marshall:

They —

Charles E. Whittaker:

— in the (Inaudible) who has lease the portion of the premises doing it.

Thurgood Marshall:

Mr. Justice Whittaker, the petitioner got on the bus in Washington and he did what Congress has recognized, he began on what he expected to be a normal uninterrupted journey without discrimination.

The bus company dropped him at this bus terminal, he didn’t walk in that, the bus company put in there, and the bus company put him in there and that bus terminal is in just as much interstate commerce of the bus.

The only difference is that all.

Charles E. Whittaker:

Well, I think there must be (Inaudible)

Thurgood Marshall:

I — I just — right there, I don’t see the difference between the bus company saying “We’ll serve you on the bus or off the bus”.

Charles E. Whittaker:

(Inaudible) that the bus terminal has to be bus company?

Thurgood Marshall:

No sir.

I say that the bus terminal — it’s not the name of it is such, but it’s what it actually does.

Earl Warren:

Mr. Marshall this —

Thurgood Marshall:

This sets its — yes sir.

Earl Warren:

Mr. Marshall, isn’t it also a fact that in this situation the — the bus company maintained a control over this — this lease and over the conduct of the — of the restaurant for the purpose of assuring the proper services rendered to its — its travelers.

Thurgood Marshall:

Well Mr. Chief Justice the — the lease is between the restaurant and the —

Earl Warren:

Yes —

Thurgood Marshall:

— bus terminal company.

And that for several pages itemized everything it can’t go out and serve people on the bus, you can’t do this, you can’t do if — it’s all obviously geared around service to the interstate passenger.

The fact that it incidentally serves local people is unimportant that the primary purpose is all I think.

Earl Warren:

And by reason of the 50% ownership of a — of the Trailways —

Thurgood Marshall:

(Voice Overlap)

Earl Warren:

It has control —

Thurgood Marshall:

There’s no any question about it.

Felix Frankfurter:

May I ask you, take some of your time?

Thurgood Marshall:

Yes sir.

Felix Frankfurter:

Mr. Marshall, (Inaudible) of this record is the inward ratio is plain, isn’t it?

Thurgood Marshall:

Absolutely sir.

Felix Frankfurter:

Now, do you say that this is in the case of a restaurant across the street?

Not as the record that you confirmatively indicate that this involved in this dissociated restaurant, dissociated from either the bus company or there’s more them that might have been externally.

Now the bus terminal is that a subject to Interstate Commerce Regulation?

Thurgood Marshall:

The bus terminal if controlled by the carrier it’s — it’s under the Motor Carrier Act.

Felix Frankfurter:

If the — if the — what we have in this record with reference (Inaudible) Court’s relation on page 20 of the record, Mr. Marshall, the witness is in rush that the manager of the bus terminal restaurant was there as the company that operates the restaurant is not affiliated in any way with the bus company is it and the answer was no there was not.

The bus company has no control with the operation of the restaurant none whatsoever.

If I – you can correct me if I’m wrong but I think there’s nothing in the record bearing on any question in narrow arrangement as to the relations from the restaurant in the terminal of other than the fact that there’s a lease.

Thurgood Marshall:

The lease?

Felix Frankfurter:

The lease.

Thurgood Marshall:

Yes.

Felix Frankfurter:

Now, so that we have the connection between the lease, between the terminal company and the restaurant.

Thurgood Marshall:

Yes sir.

Felix Frankfurter:

So that in that way the denial here that the company has no control, the bus company (Inaudible) what controls the terminal company there and the record at least is silent as to the relations between the bus company and the bus terminals, except for the physical fact and the inference of the physical evidence of the conclusion in this record of narrative or physical fact as to the relation that the bus company determined.

Is that right?

Thurgood Marshall:

That’s — well —

Felix Frankfurter:

I mean, we know that has a connection.

Thurgood Marshall:

That has a connection.

Yes sir, yes sir.

Felix Frankfurter:

It’s stated as in complicated way, but it’s true nothing is said as to the relation between the restaurant and the bus company —

Thurgood Marshall:

Company.

Felix Frankfurter:

— except the denial by Mr. Rush, but the record is replete with a lot of inferences to put it mildly of the connection with functionally, between the bus terminal and the bus company.

Thurgood Marshall:

It’s — yes sir.

It’s not only the lease, but there is a testimony that this is the type of terminal which has a normal service.

It’s the only company —

Felix Frankfurter:

So that — so that those are matters that are in the record from which or other which there are the inferences of transportation facts of life can be drawn.

Thurgood Marshall:

I think that there’s no question that the purpose of this bus terminal was to keep this from being just an ordinary stop that this is a bus terminal with all of the facilities normal to a carrier that does not have the facility which he could have on this carrier.

Felix Frankfurter:

On the — on this record if we had no more than this record and the motor carrier (Inaudible), could this terminal separate by white and color?

Thurgood Marshall:

Under the Motor Carriers Act the — the point would be that the Act as to terminals has that provision controlled by, you would have to find that on the basis of this record it’s obvious that the bus terminal was controlled by the bus company.

Felix Frankfurter:

And — and — from what?

Thurgood Marshall:

I think the Court could do that.

Felix Frankfurter:

From what in this record would such an inference be allowed?

Thurgood Marshall:

It’s the fact that the bus company — I — I couldn’t conceive of a bus company driving, buses and there exclusive stop and not having some control on it.

I mean it’s —

Felix Frankfurter:

Well in the Interstate Commerce Commission and this Court likewise has again and again said we can take certain notice of what happen in the transportation world.

Thurgood Marshall:

Well, in the transportation world on a trip from Washington, D.C. to Salem, Alabama it certainly that there are certain things that the passengers have to do and one of these is they have to eat.

And —

Felix Frankfurter:

Control doesn’t — doesn’t have to meet 51 percent or —

Thurgood Marshall:

Plus one other thing, if it please the Court, that there is language in the brief on the Motor Carrier Act which says that these services that they must furnish these carriers and this — this carrier is furnishing that service and he is furnishing at this bus terminal.

Felix Frankfurter:

Well, if under the Act — under duty to furnish those services, I shouldn’t think under Mitchell he could furnish them discriminatorily —

Thurgood Marshall:

That’s right.

Felix Frankfurter:

— because that would not be a compliance with the duty of furnishing.

Thurgood Marshall:

And plus if, Mr. Justice Frankfurter bear in mind that on this trip —

Hugo L. Black:

What act is that they mentioned the duty to comply —

Thurgood Marshall:

It’s in the Government‘s brief.

Hugo L. Black:

Government’s brief.

Thurgood Marshall:

It’s in the Government’s brief on page — it starts on page 5 in —

Tom C. Clark:

That’s (Inaudible) I suppose?

Thurgood Marshall:

Yes it may have a reference to it.

In the performance of any, it’s on the bottom of page seven and runs along.

Earl Warren:

That’s in page seven?

Thurgood Marshall:

Yes sir.

But the other point that I think is even more important is the — this point about not having this information of the connection of the bus terminal and the bus company even though Boyton was a law school student, but if that’s true each place the trade of the — the bus stops, he’s got to have the armed with the corporate papers to find out who owns the bus terminal and that’s only way he can find out what his rights are.

And incidentally, when we got copies of it, it cost us around $70 which is four times his bus traffic, but just as in the Morgan case, there are two things involved.

He goes to the terminal in — in Richmond which is actually owned by the bus company.

So, he would have a right to nonsegregated service under the Commonwealth’s position.

Then he stops in another town, in another state.

That bus company does not own the bus terminal.

When he goes in there, and he’s legally arrested and he goes another place he can have four convictions by the time he gets through with his journey.

Two of them would be sustained and two of them would be thrown out and that is the opposite of Congress’ purpose in the flowing of — of commerce and I don’t think anybody can dispute that.

Potter Stewart:

Well now, Mr. Marshall you’re familiar of course with Interstate Commerce Commission decision in 1955 in the case of National Association for the Advancement of Colored People against St. Louis San Francisco Railway Company —

Thurgood Marshall:

I know it’s —

Potter Stewart:

(Voice Overlap) – you were the counsel on record in it and they didn’t say that that was Congress’ purpose that a luncheon in the Richmond, Virginia Railway (Inaudible)

Thurgood Marshall:

Well, Mr. Justice Stewart we have one interesting distinguishing point.

The restaurant was based on the fact that the restaurant could not have been essential to interstate commerce because it had previously been closed for some 40 years or (Inaudible).

That was the basis of the restaurant, but difference —

Potter Stewart:

Yes.

Thurgood Marshall:

— the interesting thing is that the record shows in this case that the restaurant was built simultaneously with the terminal.

Potter Stewart:

Yes.

Do you think that’s the sole basis of the decision as for the distinction of the Interstate Commerce Commission made between the restaurant and waiting room?

Thurgood Marshall:

I think in that — that is my basic point.

I — I frankly didn’t agree with any of the reasoning on that particular point, but that seem to me to be underlying.

Potter Stewart:

The Commission says in concluding its opinion that they further find that the operation by a lessee non carrier has separate lunchroom facilities for white and colored persons in the railway station of Richmond, constitutes a function or service which is not within the jurisdiction of this Commission.

Thurgood Marshall:

We — I say quite frankly, I don’t know (Voice Overlap) —

Potter Stewart:

At least — at least to that it can be a difference of opinion as to what Congress’ intent was with respect of the lessee operation of a lunchroom?

Thurgood Marshall:

Oh, I think so and I — I think —

Potter Stewart:

The body with expertise charged with the administration of the Interstate Commerce Act is held that it was not Congress’ intention.

Thurgood Marshall:

Well, I think the Interstate Commerce Commission I would be willing to agree that they did say that and I — I submit that they’re wrong.

Potter Stewart:

That case involved the railroad trains?

Thurgood Marshall:

Railroad trains with dining cars.

Potter Stewart:

With that in dining cars.

Thurgood Marshall:

With dining cars.

Potter Stewart:

— involved the Richmond, Virginia Railway Terminal.

Thurgood Marshall:

Yes sir.

Potter Stewart:

And the operation of the lunchroom by a lessee in that term.

Thurgood Marshall:

And he said it wasn’t essential.

It was not essential on restaurant in a terminal was not essential to transportation — to the train transportation.

But I submit that a restaurant in a bus terminal for a — a 24-hour trip at least speak for myself eating would be essential.

In the dining in a train, I can eat in the dining car, or I could get a sandwich from the newsstand what have you been on — on the bus.

Your only place is in the terminal and I think that that’s the difference.

Thurgood Marshall:

In fact, I don’t want to say I agree with the Interstate Commerce Commission point on argument.

Potter Stewart:

(Inaudible)?

Thurgood Marshall:

Yes.

Potter Stewart:

It’s pointing out you state as a (Inaudible) in the Commerce Clause and I’m pointing out maybe distinguished (Inaudible) but at least in the respect of the railway terminal in the same city of Richmond the Interstate Commerce Commission said that Congress has intended.

Thurgood Marshall:

I — I think that that’s it but I — I still think the underlying factor was that it has been closed.

Felix Frankfurter:

Are you saying that in defining your answer to Justice Stewart that for the bus company itself deal with own restaurant or the facilities it makes available providing the food on the such a journey is the facility in which the bus company must serve as part of (Inaudible) bus company?

Thurgood Marshall:

I —

Felix Frankfurter:

I think —

Thurgood Marshall:

I don’t have to get to that but I — because Mr. Justice Frankfurter my point is that if they furnish, it’s whether if you have to or not, but if they furnish it as an essential service then they have to do it without regard to race and color.

Felix Frankfurter:

That’s — that’s necessary — a necessary conclusion, that is the (Inaudible) of many, but if the — if for example they need not furnish, they can make provisions that they regard as satisfying that local situation.

Thurgood Marshall:

Well except for —

Felix Frankfurter:

And then the (Inaudible) from this.

Thurgood Marshall:

Well, except on the Anderson they can do it —

Felix Frankfurter:

Pardon me?

Thurgood Marshall:

In the Anderson case they can’t do it.

Felix Frankfurter:

That’s the (Inaudible)

Thurgood Marshall:

Well the —

Felix Frankfurter:

— in the Anderson case — in the Anderson case.

If they — if they have hold themselves out — if they hold themselves back as part of the train travel that what the Anderson case —

Thurgood Marshall:

Yes sir.

Felix Frankfurter:

Well part of train travel (Inaudible), they must then treat the law equally and assume they do on racial (Inaudible).

But if that isn’t necessary, if they didn’t provide any kind of — which makes no racial discrimination or anything else, assume that is so, I wonder there is gap — my reason — my reason about it even if they furnish it then they must disregard or not be able to require.

Thurgood Marshall:

Well, my point was — Mr. Justice Frankfurter is that, I — I just have great difficulty seeing the difference between a — the end of the bus being set up as a small table dining car then I think the Anderson case is right there — right — right on the nub.

Well, I don’t see any difference between the bus companies dropping you out of place where they are at the same table.

Felix Frankfurter:

So, what you’re saying is that in fact, when somebody (Inaudible) facilities accommodating thereof (Inaudible) of the Court in accommodating as part of this trip — as part of what the bus company was doing.

Thurgood Marshall:

I —

Felix Frankfurter:

They don’t care how it was done.

But that — if no ownership — or partnership that stipulates the bus company held itself out from the old — the old terminology of the Court.

Thurgood Marshall:

Yes.

Felix Frankfurter:

It held itself out with furnishing of food.

Thurgood Marshall:

They gave him a blue check stub so that throughout the trip they would know that he was an interstate passenger on that bus.

Potter Stewart:

Mr. Marshall, we have – you and I have traveled on busses, we know that a large number of their stops, perhaps most of their stops, so called rest stops not made at the terminals, they are made at private places along the way, with all the private restaurants that are on the roadside, we have the same case if this place — that kind of a place are this (Inaudible) of terminals.

Thurgood Marshall:

I — I think there — Mr. Justice Stewart we — we get into the matter of degree.

In the first place, I think there’s no question of the duty of the bus company to see to it that he is put in a safe place etcetera, etcetera, etcetera, but on the other hand as to the joining to a little small place at the — at the gas station and incidentally has a little sandwich counter, as to whether that sandwich counter is in the same position as the — the Richmond terminal bus and all those things aside but obviously not.

Potter Stewart:

Well, except — except in viewing the record certainly if — if — that if that’s on this record it shows — it shows no more.

Thurgood Marshall:

Well, Mr. Justice Stewart I — I don’t agree.

I think that this restaurant was set up for the purpose of serving passengers of the Trailways Bus Company.

Potter Stewart:

Where is that — where is that in the record?

Thurgood Marshall:

The lease says it must be maintained as an adequate bus terminal —

Potter Stewart:

Yes, but that’s the lease between the — between the terminal company and the restaurant.

There’s nothing in the record shows any connection with the terminal company and the carrier.

Thurgood Marshall:

Well, I wasn’t trying to assume that I was — I was trying to talk about the difference in the two places.

The — the little place side on the road that is a gas station with a lunch counter, it’s primarily a gas station to serve local people.

This one is primarily to serve interstate commerce, and because it’s set up for that purpose.

Potter Stewart:

The restaurant along the roadway is perhaps the — there are no (Inaudible) primarily to serve interstate commerce.

Thurgood Marshall:

If — if that is true, then my argument would apply to it.

Potter Stewart:

Well, that’s what I was asking.

Thurgood Marshall:

But it would not apply to a place that just incidentally had one bus stop by every other day.

Potter Stewart:

No, this is the place the regular bus stop and there was boarding place.

Thurgood Marshall:

Well, there are more than few that was left, sir.

Potter Stewart:

Now, I’ll stop on that brief.[Laughter]

Thurgood Marshall:

Well, there’s still a part few left this witness [Laughter] — as the witness of fact that this terminal —

Potter Stewart:

Well I start for this period.

Thurgood Marshall:

— these terminals are being built all up and down the road and I — I think the — there’s a need to show that this has been gone, and I think it’s the bus company’s duty to see to it that this man’s trip is not interrupted.

And here we have the bus company put him in the place where he ended up, not just interrupt him, he ended up in jail with the full panoply of the state government on it.

Potter Stewart:

When was the statute enacted by?

Thurgood Marshall:

In Virginia —

Potter Stewart:

Well is it a –it’s not a rendered statute.

Thurgood Marshall:

Oh no.

No, no sir.

Thurgood Marshall:

No sir, its — its way back as I remember a research of the codification of the — the oldest.

It’s at — it’s not out of the ordinary statute.

I think that since I — I was trying to save some time, I would like to say that while I agree fully and I — I consider it my duty to argue to this Court the points that could decide in this case without getting to the constitutional question, we still have brief and we are prepared to argue it that if those points are not being sufficient, we are also relying upon the fact that it is a violation of the Fourteenth Amendment, but I don’t think that the Court has to get to the Fourteenth Amendment at all.

It merely says that if necessary, we still think that the refusal to serve Boynton be put aside that the action of the state government in arresting him not for trespass, not for refusal to leave, but with the full knowledge of the police and the magistrate that the sole reason for his refusal to move was that — I mean the sole reason for the request for him to move was race or color that we do have sufficient state action and we rely on our notes in our brief on Shelly and Kramer (Inaudible) Jackson —

John M. Harlan II:

Did I understand you to say that the bus ticket — bus content (Voice Overlap) stating and that’s titled in to moot on one or another.

Thurgood Marshall:

Alright.

The — there are services that said that where the services are offered, they must be offered alike.

John M. Harlan II:

Is there —

Thurgood Marshall:

— it’s almost the same as the —

John M. Harlan II:

Is there a copy of the ticket in your record?

Thurgood Marshall:

It was introduced but it — but it’s not in the record.

John M. Harlan II:

Well is it here in the Court?

Thurgood Marshall:

I don’t think so.

John M. Harlan II:

Well this —

Felix Frankfurter:

You’re asking to (Inaudible) to such a provision is on the ticket?

Thurgood Marshall:

Oh, no sir.

I said it’s in the Motor Carrier Act.

Felix Frankfurter:

The Motor Carrier Act (Inaudible)

Thurgood Marshall:

Oh, no sir.

I’m sorry, maybe I did.

I — I said, the Motor Carrier Act provides that when services are rendered they must be rendered indiscriminatorily —

John M. Harlan II:

I don’t think I understood your argument.

I thought you said in the —

Felix Frankfurter:

And what you —

Thurgood Marshall:

Oh, no sir.

Felix Frankfurter:

And what you’re saying is, although they are not compelled by the act of furnishing services they may give more elegant services (Inaudible) and it’s legal whatever it is if they offered service within the general circle of transportation service for which they’re engaged, which they’re offered, then they must offer on a nonsegregated basis statute.

Thurgood Marshall:

I think that — oh, yes there is no question Mr. Justice Frankfurter, that’s not the point.

Felix Frankfurter:

Although they couldn’t be compelled, although the — although, they didn’t see things not from that (Inaudible)

Thurgood Marshall:

I think that the — the — I think that that’s correct and I think we take the position and as a matter of fact I know we take the position that once these services are offered one way or the other, they’ve got to be — there’s no question after the starting with the Mitchell case on down to the present, there’s no question about that, it seems to me and the decision to this Court.

Now, they — the — the Commonwealth is trying to say that this is a little private institution.

Thurgood Marshall:

Well, we take the position that it’s not, it’s actually in interstate commerce and we make our position clear.

We believe that under the Commerce Clause, the action in refusing to serve in and in fact having him arrested, leaving just one point that he was only there for 40 minutes when they refused to serve him and he’d said, “Well I’m going to insist on it,” they could’ve waited 40 minutes and let him get on his bus, but they didn’t, they had him arrested.

And therefore integrated with the flow of commerce at least insofar as Boynton was concerned.

And on that basis we think that not only as it’s an interference with Commerce under the Commerce Clause, we also take the position that if necessary, if the Court finds that it has to get to the point that we think it’s a violation to the Fourteenth Amendment.

Hugo L. Black:

What — what could the Court can do if we review on all those and put in the record (Inaudible) to make it quite different with the questions in total which is known by the Court, give result to the (Inaudible)

Thurgood Marshall:

No sir.

In — in most instances in most states, I think the procedure there would be the same to fact to the State Court of Virginia.

I know there’s no way for — for Virginia to do it.

This — that’s what I — as I read the Virginia.

They say it’s the way to the New York case.

But I — I want to make it clear, Mr. Justice Black, that I don’t — while I admit that for technical reasons the Interstate Commerce Act might be held not to apply because of the lack of this piece of evidence, I don’t take the position that he cannot, as a matter of fact I say emphatically, that this Court can decide the case under the Board’s Commerce Powers without reaching the Act as such.

Hugo L. Black:

It seems to me that the case probably wouldn’t have anything to do with this under both for the principle, that this is decided on Sinclair against the Missouri Pacific (Inaudible) but we held that operational facilities required (Inaudible) the railroad be liable for negligence that those operational facilities were turned over to independent contractor, a person wholly disconnected with the railroad, there was nevertheless be – it didn’t have to be (Inaudible) so as the part of the view.

As I understand it that’s what he’s been arguing here.

Thurgood Marshall:

I think —

Hugo L. Black:

(Voice Overlap) — part of the transportation under this case.

Thurgood Marshall:

That’s our position.

Charles E. Whittaker:

(Inaudible) — that there is a bus that may not be reflection of the (Inaudible) in the district operation (Inaudible) by the purposes.

Thurgood Marshall:

I say —

Charles E. Whittaker:

— It’s non-delegable as in the Sinclair case.

Thurgood Marshall:

Mr. Justice Whittaker, I say that it’s an abstract proposition —

Charles E. Whittaker:

I beg your pardon?

Thurgood Marshall:

It’s an abstract proposition signed to the (Inaudible), but if they lease a facility that is essential to interstate commerce which they are operating on, they cannot escape the responsibility by doing it.

No more so than a railroad could escape it by leasing its dining car to somebody else.

Charles E. Whittaker:

I presume this may be (Inaudible) the bus company or the carrier because insofar, this (Inaudible)

May I ask you this, the day the bus company (Inaudible) the question of the breach should not do it?

Thurgood Marshall:

Breaching?

Charles E. Whittaker:

Breaching.

Thurgood Marshall:

If it’s there duty?

Charles E. Whittaker:

Yes.

Thurgood Marshall:

No sir.

Charles E. Whittaker:

Is that which?

Thurgood Marshall:

I shouldn’t be —

Charles E. Whittaker:

Well then, is this unlawfully made a contract of (Inaudible) a portion of the premises to somebody to do any property of —

Thurgood Marshall:

Not if it’s in the bus terminal and it’s the only one there.

You see, I mean — I mean, I — I think Mr. Justice Whittaker that if the facility that they lease is the one facility of that kind that is needed for — to facilitate interstate commerce which they have a duty or responsibility, or it’s norm, they cannot lease that to a private individual and get it there for out of this flow of commerce.

Charles E. Whittaker:

You’re talking about (Inaudible)?

Thurgood Marshall:

Yes sir.

That’s — that’s —

Charles E. Whittaker:

Well, of course that’s a different proposition that I have in mind.

I have in mind that this brief (Inaudible) to me that happens to be under your (Inaudible) and I then have the right I should think to do this in my state to the exclusion of the landlord for any lawful person.

Thurgood Marshall:

I — I think sir that would be true, but it would not be true if a restaurant that is essential to interstate commerce.

Charles E. Whittaker:

Well, I could understand.

John M. Harlan II:

Do you think the — as you said in this record in the interstate commerce presents and puts to the Supreme Court.

Thurgood Marshall:

The interstate commerce was — yes sir, it was raised not the Act.

The Act was raised in the first — the motion of dismiss the warrant.

It appears on page six raised the Act as well as the Clause I think and —

Felix Frankfurter:

As far as this record is concerned, there will always be a fair way.

Thurgood Marshall:

Well so —

Felix Frankfurter:

(Inaudible)

Thurgood Marshall:

— evidentially yes.

Felix Frankfurter:

No, no.

As — as claims —

Thurgood Marshall:

Oh.

Felix Frankfurter:

Claims that were made or coordinately made under the Interstate Commerce Act, in the Commerce Clause, and the Fourteenth Amendment.

Thurgood Marshall:

It’s — for example it says on page five —

Felix Frankfurter:

All entertained way, no more, no less?

Thurgood Marshall:

No more, no less.

Potter Stewart:

That’s the federal statute, isn’t that right?

Thurgood Marshall:

Yes, the statute was raised in one specifically, and then in the assignment of errors on page five it says the Court erred in refused to dismiss the ;prosecution on the ground that the statute apply, has applied on constituted attempts during that time.

Potter Stewart:

What about the federal court, I’m talking about the Interstate Commerce Act.

Thurgood Marshall:

That’s what there talking about.

Potter Stewart:

Now, here on the ground of the statute as applied that’s obviously referring to the statute of the Commonwealth of Virginia.

Thurgood Marshall:

Yes sir.

Potter Stewart:

I’m talking about the Interstate Commerce Act.

Thurgood Marshall:

Mr. Justice Stewart, it says the Court erred in refusing to dismiss the prosecution.

They mean inadvertent on interstate commerce.

The motion to dismiss the warrant is on the following page, it’s on page six.

Potter Stewart:

Yes.

Thurgood Marshall:

And in that one, they say specifically —

Potter Stewart:

Where is it?

Felix Frankfurter:

(Inaudible)

John M. Harlan II:

Paragraph one.

That is applied on the statute of the opinion.

Felix Frankfurter:

Yes.

But it goes on, on the —

Thurgood Marshall:

(Voice Overlap) — it says, it says that in the violation of the (Inaudible)

Felix Frankfurter:

Commerce Act —

Thurgood Marshall:

I think when you read the two together, frankly it is rather broad language we confess but I think —

Potter Stewart:

I see.

Thurgood Marshall:

— but I think that it — it does covers.

Felix Frankfurter:

Covers it — it invokes both in the same way no more, no less.

Thurgood Marshall:

That I — I agree sir.

Earl Warren:

We’ll recess now.