Gober v. Birmingham

PETITIONER:Gober
RESPONDENT:Birmingham
LOCATION:Beaumont Mills

DOCKET NO.: 66
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State appellate court

CITATION: 373 US 374 (1963)
ARGUED: Nov 06, 1962
DECIDED: May 20, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – November 06, 1962 in Gober v. Birmingham

Earl Warren:

Number 67, F.L. Shuttlesworth et al., Petitioner, versus City of Birmingham.

I beg your pardon.

This is Number 66, James Gober et al. versus City of Birmingham.

Mrs. Motley.

Constance Baker Motley:

Mr. Chief Justice and may it please the Court.

The petitioners in this case are 10 Negro students attending Daniel Payne College in Birmingham, Alabama.

They are here pursuant to Title 28, United States Code Section 1257, seeking a reversal of their convictions for trespass after warning by the Alabama Court.

Now, relying on the Due Process and Equal Protection Clauses of the Fourteenth Amendment, these petitioners repeatedly find the law and assert here that their convictions are constitutionally void because they are the product of state action manifestly prohibited by the Equal Protection Clause of the Fourteenth Amendment.

Now all 10 petitioners were arrested on March 31st, 1960 following sit-in demonstrations in five Birmingham department stores.

They at that time were seeking food service at a lunch counter limited to white persons.

Each petitioner was charged and convicted of violating Section 1436 of the Birmingham Code, a trespass after warning statute which appears on page 2 of our brief.

There are five trials in these cases, one, petitioner was tried and then it was stipulated that the testimony as to that one petitioner would apply to his companion.

You see, two petitioners went into each of these five stores.

And they were first tried in the Recorder’s Court of the City of Birmingham and convicted and then appealed to the Circuit Court, their convictions were — they affirmed and affirmed by the Court of Appeals of Alabama which is the only court that wrote an opinion and certiorari in the Supreme Court of the State was denied.

Now the significant facts in all of these cases are relatively the same.

The first important fact is that Birmingham has a city ordinance which makes it unlawful to serve Negroes and whites in the same room.

That ordinance appears on page 2 of our brief.

Now this ordinance is a part of a massive state policy of racial segregation, is set forth in our brief the Alabama segregation statutes.

All of the petitioners of course are Negroes.

For one successfully sought service in department stores where Negroes are welcomed and served at all counters except the lunch counter where this ordinance requires that there be racial segregation.

Now, in every one of these cases, the petitioners were asked to leave the counter by some representative of the store in the sense that they were told that they could not be served there or we have a counter for Negroes on the fourth floor, in the basement once you go there.

Or in some instances, the counter was closed after the Negroes appeared and were told this and didn’t leave.

Now, the police arrived and the police arrived in some instances when the people were still eating and the police arrived and not pursuant to a call from any member of the store in any case.

And this — that the record is absolutely clear on that that no employee in any one of the five stores called the police.

Moreover —

Potter Stewart:

Does the record show how the police got there?

Why they —

Constance Baker Motley:

Yes sir.

Potter Stewart:

— why they came there?

Constance Baker Motley:

Yes.

Constance Baker Motley:

And every case, the officer testified that he was directed to go there either by a superior officer or by a call over the radio in his car from police headquarters.

Potter Stewart:

It doesn’t show the chain behind that.

Constance Baker Motley:

No, it doesn’t.

But he testified that he was directed by a superior or a call from the police headquarters and every store employee testified that he or she did not call the police —

Potter Stewart:

There’s no —

Constance Baker Motley:

— and that was clear.

Potter Stewart:

No indication in any of the cases that the police were already there when (Voice Overlap) —

Constance Baker Motley:

No sir, I don’t believe there’s any indication to that effect.

Hugo L. Black:

Your case differs from the other then and that as I understand it, if the restaurant owner could not have chosen to serve —

Constance Baker Motley:

Yes, I would say —

Hugo L. Black:

— without making himself a violator of the city law?

Constance Baker Motley:

Oh, I would say in this case like — unlike the others, we have the ordinance which was clearly in the record I think or the Court certainly was required to take judicial notice of it but I want to make it clear that even if they were not an ordinance in this case, the rest of the petitioners and their conviction in this matter in these circumstances would still violate the Equal Protection Clause if this —

Hugo L. Black:

I understand that’s your argument but —

Constance Baker Motley:

Yes.

Hugo L. Black:

— certainly in this case, you have a city law which he would’ve violate — would’ve violated had they served this.

Constance Baker Motley:

That’s right sir.

Hugo L. Black:

And they could not make a choice of their own free will but that’s if — if there’d been the other way without subjecting in there the prosecution and conviction for —

Constance Baker Motley:

Yes sir.

Hugo L. Black:

— of this ordinance.

Constance Baker Motley:

Yes sir.

Byron R. White:

(Inaudible) of law by the — (Inaudible) that’s the constitution?

Constance Baker Motley:

Yes sir, on page 24 of the record, the representative from Kress’ Department Store was on the stand and he was asked what the petitioners have been told.

Answer, on page 24, he told them, “It would be against the law to serve them there”.

Then petitioners counsel asked him about this ordinance which I’ve just referred to and there was an objection by the respondent — by the lawyer for the city and the judge sustained that, he said he didn’t think the witness — his knowledge of the law was material or anything like that and the counsel for the defendants here said, “This is the whole theory of our case”.

And the Court would not permit him to develop that theory of the case.

He said that, “We want to show”, as he says at the bottom, “It is our theory of this case, it is one, they simply on the city segregation ordinance”.

Byron R. White:

Oh, I assume the — I assume that such an ordinance would be unconstitutional.

Constance Baker Motley:

Oh, certainly.

Byron R. White:

And a — but and a — is there anything — is there — there is some evidence in the record that this wasn’t a dead letter of ordinance, it was just a — hadn’t been cleared from the books (Inaudible) but that it really had some teeth in it that it was a meaningful ordinance in this context at this time?

Constance Baker Motley:

Well, as I say that the Court was not — have been to develop it but I think this case shows — this record shows that this ordinance was what was being enforced because each police officer came in to the store and on the stand he was asked, “What did you see unusual as you came in to the store?”

Constance Baker Motley:

And each one replied, “I saw two Negroes sitting on the couch”, and for him that was enough.

Byron R. White:

Isn’t — this didn’t have specific reference to the ordinance now —

Constance Baker Motley:

No, he didn’t refer to — specifically to an ordinance but in one case, he said, “I arrested them under the authority of the City of Birmingham”.

But the police officer, he — in most instances he spoke to no one as he came in.

In one case he said, “Mrs. Evans gave me the complaint”.

The petitioner said, they never saw Mrs. Evans until that — she got to court, the Recorder’s Court so that the testimony in each case says that the police officers went in and did not speak to any employee of the store —

Byron R. White:

It doesn’t simply get a reference to the ordinance as being a factor in the storeowner’s decisions in any of the cases —

Constance Baker Motley:

Well, what I just read —

Byron R. White:

Except that it’s against the law.

Constance Baker Motley:

That’s right.

Byron R. White:

But that’s just in one case.

Constance Baker Motley:

That’s right.

Byron R. White:

And there’s nothing I gather in the other cases.

Constance Baker Motley:

Well, in the other cases, I think the Court made it clear to the lawyer, he wasn’t (Inaudible) — have that testimony.

Byron R. White:

He was — yes.

Constance Baker Motley:

And then in another place, the lawyer for the petitioners wanted to bring out that these people would have been served if it hadn’t been for the ordinance and the Court cuts that off.

William J. Brennan, Jr.:

What page is that Mr. Motley?

Constance Baker Motley:

Yes sir.

It’s — one on page 67 and one on page 168.

The Court said at this point in the middle of that page, “Is there any question before the Court now?”

And Mr. Hall, the lawyer for petitioner said, “If Your Honor pleases, we have asked Mr. Sterling (ph) about new various policy.”

The Court – “That is not competent”.

And then he took an exception.

Byron R. White:

What did the Alabama — what did the appellate court say about that —

Constance Baker Motley:

The appellate —

Byron R. White:

— its evidentiary ruling?

Constance Baker Motley:

Pardon me?

Byron R. White:

What did the appellate court say about this evidentiary ruling?

Constance Baker Motley:

He — they didn’t say anything about that specific ruling.

They ignored all the evidence of the State policy — the State ordinance.

Constance Baker Motley:

And said, the owner here was exercising his right to choose his own customers.

As to the ordinance, they said it has not been pleaded and therefore they wouldn’t pass on that but there is a statute in Alabama which requires the Court to take judicial notice of an ordinance.

William J. Brennan, Jr.:

But the Alabama Supreme Court ruled they didn’t have to.

Constance Baker Motley:

The Court of Appeals of Alabama.

William J. Brennan, Jr.:

Court of Appeals, yes.

Constance Baker Motley:

Well, they said that it should have been pleaded that we should have by some pleading set forth that ordinance.

Well of course, I don’t believe that’s true because number one, you could take judicial notice of it, and number two, the petitioner said my whole defense is there.

And certainly, that was before the Court when it reviewed the case.

Hugo L. Black:

How is the State in a position despite all that?

How was the State in a position to say that this is voluntary action of an owner when he’d be a criminal under that state law if he did?

Constance Baker Motley:

Well, of course they’re not and I — the Court in making its decision just ignored all of the evidence here that the police came in, that the storeowner did not call the police that even after the police arrived, the storeowners did not request the arrest.

And the officer was asked in every case, “Was an arrest requested?”

So it’s clear I think that the State was acting in this case to enforce a state policy regardless of what the owner’s policy might have been.

Earl Warren:

In the absence of an or — of the ordinance, would we have the Garner case here?

Is this Garner?

Constance Baker Motley:

Yes.

I think that here, the — as far as the free speech — are you saying or the donor with respect to no evidence.

Earl Warren:

No evidence.

Constance Baker Motley:

Well, I think that in each of these cases, the petitioners were asked to leave the store by some representative of the store and in that sense, this evidence that they were asked to leave.

Earl Warren:

I see.

Constance Baker Motley:

Now, as to the Garner case, what we say with reference to that is that this situation is like the opinion of Mr. Justice Harlan in Garner that here, the storeowners were apparently willing to endure this controversy.

They did not call the police.

When the police came, they didn’t ask if they’d be arrested.

And so these petitioners were there demonstrating against the state’s policy of enforcing segregation and they demonstrated in this manner by sitting themselves at the counter, quietly asking for service like anyone else who as white does.

And the owner apparently was willing to, as I say, endure this kind of controversy in this manner.

If he was not, he obviously would have called the police.

When the police arrived, he would have said I wanted them arrested.

And there’s no question that they were peaceful.

There were only two in each store.

Arthur J. Goldberg:

Mrs. Motley, do I understand (Inaudible) to say that the (Inaudible) in the application?

Constance Baker Motley:

No sir.

There — Gober was tried and his companion was Davis.

Davis was not separately tried.

The testimony as to Gober was stipulated as a testimony as to Davis.

Arthur J. Goldberg:

Not to other?

Constance Baker Motley:

No sir.

And then the next two came up.

They were in a different store.

One was tried, the testimony as to that — defendant was stipulated as to his companion and so forth.

Arthur J. Goldberg:

Now with reference to the (Inaudible)?

Constance Baker Motley:

That’s right.

After that, he didn’t mention the ordinance again.

But as I say, there’s a state statute which requires the courts to take judicial notice of ordinances in cities of a certain size of which Birmingham certainly is one.

Arthur J. Goldberg:

Yes but I understand that but there is no (Inaudible) by counsel.

Constance Baker Motley:

That’s right.

Arthur J. Goldberg:

Or the defendant in the other case.

Constance Baker Motley:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Constance Baker Motley:

That’s right.

Arthur J. Goldberg:

(Inaudible)

Constance Baker Motley:

Yes sir.

William J. Brennan, Jr.:

And were these cases tried in sequence (Voice Overlap)?

Constance Baker Motley:

Yes, one after the other.

They were —

William J. Brennan, Jr.:

Before the same judge?

Constance Baker Motley:

Before the same judge —

William J. Brennan, Jr.:

Same counsel?

Constance Baker Motley:

Yes sir, same counsel.

William J. Brennan, Jr.:

Same day?

Constance Baker Motley:

They were treated as a whole.

Constance Baker Motley:

The motions were all identical —

William J. Brennan, Jr.:

Filed all in the same day then?

Constance Baker Motley:

Yes, they were.

I believe they were.

And the sentencing was a joint sentencing for all of them.

They were treated as one case.

I don’t think there’s any question about that.

On page 26 Mrs. Motley —

Constance Baker Motley:

Yes sir.

Am I wrong in agreeing to the judge’s ruling as overruling the objection to the inquiries to the segregation ordinances — overruling (Inaudible)?

Constance Baker Motley:

I think that’s some confusion in the record —

(Inaudible)

Constance Baker Motley:

When —

(Inaudible) three times now and it’s the reason to my question.

Constance Baker Motley:

Yes, it’s very —

I advise that — I want to object as to Mr. Davis’ counsel to the State, I want to object to the records, to the segregation ordinance, this ordinance has nothing to do with the manner of segregation.

I think he’d need a trespass statute.

Constance Baker Motley:

That’s right.

And the Court — wouldn’t it apply equally to everybody and I take it that refers to the segregation ordain — ordinance.

I overrule the objection.

Constance Baker Motley:

Yes, but then Mr. Harlan, on — to ask about the ordinance and he then said that wasn’t competent.

And I think that what he intended to say was that he was sustaining the objection of the city’s — city attorney to the introduction of any testimony concerning the ordinance.

It’s very confusing.

I was not at the trial and the way I read it here this is what he was really doing.

He didn’t — no objection, aren’t they?

Constance Baker Motley:

Pardon me?

He did not — would’ve intended that?

Constance Baker Motley:

That’s right.

He did not let him put in that evidence regarding the ordinance.

So what he was doing was sustaining the city’s objection to the introduction of testimony regarding the effect of the ordinance.

William J. Brennan, Jr.:

(Inaudible) confusing to me.

Mr. Hall thought he had an opening —

Constance Baker Motley:

Yes.

William J. Brennan, Jr.:

— and he promptly asked the question, “Are you aware of the ordinance?”

And the witness promptly answered, “I’ve heard of it”.

Constance Baker Motley:

Yes.

William J. Brennan, Jr.:

And then Mr. Davis promptly objected again the judge sustaining objection.

What’s confusing about that?

Constance Baker Motley:

Well, I think that what the Court was saying that he didn’t want any testimony regarding that ordinance in this record.

That’s the way I read it.

William J. Brennan, Jr.:

Well, I wonder, can’t it be read on the other way?

Well, it could be certain if you read it to me, my objections is as to what the judge says as to what the ordinance (Inaudible) use the question of the law to distinguish what effect the ordinance had on the actions of the (Inaudible)?

Constance Baker Motley:

Yes, I think it’s subject to that interpretation, yes.f

(Inaudible)

Constance Baker Motley:

Yes.

(Inaudible)

Tom C. Clark:

I thought the judge had said on the page before though, page 25, and the policy wouldn’t be immaterial anyways if (Inaudible) — was that the manager?

Constance Baker Motley:

Yes.

I think at that point he was talking about Kress’ policy —

Tom C. Clark:

That was (Voice Overlap) —

Constance Baker Motley:

— the man at the storeowner’s policy.

Tom C. Clark:

But on the law, not on the policy.

He was judge — yes, but that was referring to the ordinance rather than the policy of the manager if he said that manager’s policy would not be material.

Constance Baker Motley:

Yes, they were talking about both I think at this point.

He said that the manager’s policy was not material.

He also said that the ordinance was not.

As I understand the trial judge, he didn’t want to hear that this is — would serve these people notwithstanding the ordinance.

He didn’t want to hear that either.

Tom C. Clark:

He was the manager, was he?

Constance Baker Motley:

Well, he was the president or vice president of the business, the person who —

Tom C. Clark:

He’s the one that told them to leave the store.

Constance Baker Motley:

That’s right.

I think I would like to save the remaining portion of my time for the rebuttal.

Hugo L. Black:

May I ask one question?

Constance Baker Motley:

Yes sir.

Hugo L. Black:

Does it show one of those that has now abandoned the old type of —

Constance Baker Motley:

Not that I know of sir.

Hugo L. Black:

It’s not in that group.

Constance Baker Motley:

No sir.

Earl Warren:

Mr. Davis.

Watts E. Davis:

May it please the Court.

First, if I might clarify one or two items that have just gotten into this matter, we’ve been discussing here the unusual circumstances of the Court’s ruling and I think simply it was a slip of the tongue.

You’ll notice Mr. Hall and the judge have been discussing this matter from page 24 through 26.

And I think the judge forgot the frame of the court — the form of the question of the objection at this point.

It was simply going along with the thing and overruling.

When he says overrule, I think he means the “overrule” is a general approach to this thing that you’re getting into the surrounding or — irrelevant matters.

But another thing that I want to mention before I go into what I had in mind, addressing the Court on is the propositions that counsel has said apparently they were willing to tolerate this condition.

And I believe in briefs, they mentioned the proposition of economic give and take.

And I might throw this question out for an answer if they desire to answer it.

Why would the storeowners have turned out the lights if they want them to sit there and tolerate this?

Why did they ask them to leave if they were willing to tolerate this?

Why did they say we cannot serve you here if they’re willing to tolerate it?

Hugo L. Black:

Well, he just said immediately before, he cannot serve them there.

He told them it would be against the law to serve them.

Watts E. Davis:

I would like to go back to that page 24, Mr. Justice Black, and follow that if we may of the language, the comptroller, both Pizitz — I believe his name is Mr. Gotlinger who was testifying at the time and this was cross-examination.

And Mr. Hall is asking Mr. Gotlinger, what some other person said?

What Mr. Pizitz, Dick Pizitz, the assistant — I believe the assistant of the president.

He said, “What did he tell them?”

He told them, “They couldn’t serve there and we had facilities in the basement to serve them”.

He told them that it would be against the law to serve them there.

Watts E. Davis:

He told them it would be against the law to serve them there.

What law did he have in mind, do you know?

Answer – I don’t know.

Question – He didn’t say it was against the (Inaudible) policy to serve them there and this is the key.

He used the term we cannot serve you here.

Question – And you assumed that he meant it that it was against the law?

I assumed that.

So all of these there is —

Hugo L. Black:

Mr. Davis.

Watts E. Davis:

Yes sir.

Hugo L. Black:

Do you suppose that any merchant in Birmingham even if he hadn’t been there as long as he possessed the store there.

He didn’t know it was against the city law to serve white and colored together.

Watts E. Davis:

Mr. Justice Black, it’s my sincere thought on this matter that the ordinance never comes in to the thought process.

Hugo L. Black:

I understand that but is there —

Watts E. Davis:

I can make a confession —

Hugo L. Black:

How can anybody think in Birmingham just live there and knows it but Mr. Pizitz’s store all these years didn’t know that it was against the law to serve them together.

That may be legal.

You may have a right to do it legally but how could anybody be assumed not to know it when it was on the books and that — when its been the practice since time immemorial.

Watts E. Davis:

Well, of course I’ll say this, I believe there are some 40 odd years and I have never heard of it being enforced.

Hugo L. Black:

Well, you’ve only heard of it being enforced because it was obeyed.

Watts E. Davis:

That’s a possibility.

Hugo L. Black:

But certainly it’s not obeyed, its just hadn’t been (Voice Overlap) —

Watts E. Davis:

But I think it was obeyed long before it became an ordinance.

Hugo L. Black:

The merchant wouldn’t dare to break it even if he wanted to, wouldn’t he?

Watts E. Davis:

Well, I think it goes back to the question of which comes first, the chicken or the egg.Wasn’t that the custom existing at the time the ordinance went into effect so there was no occasion for any change.

But I would say this to his honor and I’m a little bit ashamed to admit it, I was only with the city attorney’s office a few months when this case came up.

I didn’t know there was such an ordinance on that book and I didn’t think there was and when Mr. Hall got into this question, he’d been shooting constitutional objections in every direction.

I thought this was another one of these generalized objections that segregation was an issue.

He had no city code on his hand.

He was citing it —

Hugo L. Black:

You hadn’t been a merchant running a restaurant, merchants running a restaurant know who can they serve and who they can’t.

Watts E. Davis:

Well, let’s get back if I may to the basic question that I think is basic in this question — in this whole controversy.

First, what were the issues in this case?

We filed a complaint charging one thing that they trespassed after warning.

They concede that in each case the evidence shows —

Hugo L. Black:

Yes, but it (Voice Overlap) —

Watts E. Davis:

— that they didn’t.

Hugo L. Black:

But they hadn’t trespassed after warning.

They would’ve been — if the man had not warned them, it could’ve been against the law from — to go in there and sit there.

Watts E. Davis:

Well, we have a void ordinance which we concede is void.

I’ve never known of the thing — a case yet —

Hugo L. Black:

Well, the merchant —

Watts E. Davis:

— before (Inaudible) come in.

Hugo L. Black:

A merchant can’t be put at the risk of having — saying that maybe they’ll hold it void for him to set up against the validation.

Watts E. Davis:

I —

Hugo L. Black:

I personally do not see how in this case, it’s possible to say for anybody to reach a conclusion in a matter of this importance that this merchant acted because he wanted to rather than because it was against the law.

As far as I’m concerned, I see no answer to that thing.

Watts E. Davis:

Well, I think there is —

Hugo L. Black:

Now, I see a great difference.

I don’t misunderstand it.

I see a great difference for myself when a merchant deciding he doesn’t want to sell to somebody.

I don’t care what the ground is.

Deciding he won’t sell them and not sell them.

And having a law that tells him he can’t sell them and then say, “Well, because of his own choice he didn’t sell them”.

Watts E. Davis:

Well, Mr. Justice Black, my answer to that is this.

You of course are familiar with the locality of Birmingham and —

Hugo L. Black:

(Voice Overlap)

Watts E. Davis:

You know that there’s an abundance of attorneys down in the City of Birmingham and notwithstanding this whole expression you can’t fight City Hall.

You know that many of them down there do fight City Hall and if they wanted to for a moment —

Hugo L. Black:

Many of them fight City Hall on this issue?

Watts E. Davis:

On this issue?

Hugo L. Black:

On this issue.

Watts E. Davis:

No sir, but many others and if the merchant wanted to bring this thing ahead and see what their rights were, well I think it would’ve been very long ago.

But again, I think it goes back to the question that custom preceded the ordinance and the ordinance didn’t bring on any occasion whereby they should change that custom but we concede that the ordinance was invalid —

Tom C. Clark:

Well, in any case —

Watts E. Davis:

— theres no issue on that.

Tom C. Clark:

In any case, you have the State putting a person in jail.

What was the sentence here?

Was it prison?

Watts E. Davis:

Oh, 30 days —

Tom C. Clark:

(Voice Overlap)

Watts E. Davis:

Yes.

Tom C. Clark:

Any — can either case whether it’s the proprietor doesn’t like Negroes in his store or whether the city ordinance says that he shan’t serve.

In either case you have a state putting a man in prison because he is a Negro shopping in a certain place, isn’t that right?

Watts E. Davis:

Well, no sir.

I don’t think so.

He’s put in jail because he trespassed after he was told he was not to remain there —

Tom C. Clark:

No, that’s a matter as to (Voice Overlap) —

Watts E. Davis:

— which he actually admit, which (Voice Overlap).

Tom C. Clark:

(Inaudible) managed as to —

Watts E. Davis:

But — what the point is, and I don’t think we have yet touched the basic point in that in the City of Birmingham’s case.

Tom C. Clark:

Do you think a retail store is like a man’s home.

Watts E. Davis:

Very definitely.

I think there are some factual differences certainly.

But as far as the law and the powers out of the constitution are concerned, we think private property is private property whether it’s in your home, whether it’s in your office or whether it’s in a small store or big store.

But the prime question that I think is of importance for this case is, what were the issues?

William O. Douglas:

I suppose if you’re right on that then what you do would be to use the constitution to drive the wedges of segregation deep into all of our society.

Watts E. Davis:

No sir.

I construe the constitution as a limitation of power and not some affirmative instrument to use to do positive things but a limitation upon the states not to give anybody —

Tom C. Clark:

(Voice Overlap)

Watts E. Davis:

— positive power.

Tom C. Clark:

But if you can use private property in this way and what you will do would be to use it to — in a constitutional way to engraft segregation as the way it wanted.

Watts E. Davis:

Well, some people use the word segregation, some use the expression of racial discrimination.

I prefer the (Voice Overlap) —

Tom C. Clark:

Constitutional Clause versus Equal Protection.

Watts E. Davis:

Yes, I further think that racial discrimination of a different sense, racial choice or racial selectivity.

I know that an Irish man prefer Irish man or at least I’ve heard that, I’m not Irish.

I know there’s a Chinese community in our hometown.

Tom C. Clark:

But you get a different problem when you go to a judge and say, “Put this man in jail because he violated my prejudice”.

Watts E. Davis:

No sir.

I don’t think its prejudice.

It’s a personal taste.

I’m told by responsible neighbors, they have segregation among themselves in our city.

You say — some people have feeling, I think that the Negroes don’t prosper in the South.

Well, I can assure this Court in my hometown they have beautiful residential districts and I feel right ashamed when I see some of their Cadillac’s, new ones and I have a 10-year-old automobile.

That’s the rule and not the exception to the rule that I make to this Court.

But the issue we’re getting out here is how was this case tried out in the state court?

To me, it was just another lawsuit.

We filed a complaint saying, “Well, you didn’t leave when you were asked to”.

Trespass after warning, a simple city ordinance.

They came along and they filed a motion to strike the complaint.

Supreme Court decided authority and two cases have been in this Court, one is (Inaudible) versus Birmingham and the other, Taylor versus Birmingham.

A motion to strike in this type of action which is a quasi civil action does not serve the purpose to attack the validity or the sufficiency of the complaint.

They don’t say that it does.

They — haven’t taken an issue with that proposition.

The motion to strike went out the window whether they come along with the next, to set demurs in this case.

The Court of Appeals in Alabama said two things, first, they were all general and we have a code section, this issue must file a specific demurs specified forth in the complaint you’re objecting to and not be general.

The Court of Appeals said every one of those were general.

In addition to that, they raised certain constitutional objections, they said, “As applied to this defendant, this press — this ordinance does so and so and so”.

Well, the Court said, “That was a speaking demurrer because it required evidence”.

Watts E. Davis:

It didn’t appear on his face how it was going to affect a particular defendant.

They took evidence.

That was a speaking demurrer.

They haven’t denied that that was — or claimed that that was an erroneous ruling.

So what do we normally come to than a plea of general issue?

There they trespassed after warning.

Isn’t that the only question we had in the trial court?

We’re charged they did, they say, “We didn’t.”

Now they come along and say all but the city was negative state action.

Under what theory are we required to make it if anything?

They drew the boundary lines in this dispute.

They didn’t file a form or any special plea.

They brought up nothing of that nature that the Court could adjudicate.

This Court in Hill versus Mendenhall, about — in 88 U.S., announced the fundamental question of pleadings, pleadings apprise the party on the Court of the facts and issue, the Court that it may declare the law in the parties that they may know what to meet by their proof.

And here, we’re sitting here with the general issue to how they say, “Well, you can take judicial notice”.

They’re asking the lower court to act as counsel.

When they say that — judicial notice is not a substitute for pleading if I may (Voice Overlap) —

Earl Warren:

Do you require pleadings in a criminal case?

Watts E. Davis:

Yes sir, but these are quasi civil.

Earl Warren:

But do you say — yes, but do require pleadings?

Watts E. Davis:

Yes sir.

Earl Warren:

What is — what are the pleadings that you require?

Watts E. Davis:

Pardon?

I think its quasi criminal but —

Earl Warren:

I beg your pardon.

I didn’t —

Watts E. Davis:

Mr. Breckenridge was saying, this is case is quasi criminal and you asked the question what pleadings are required in criminal cases.

Earl Warren:

Well, its criminal when you go to jail, isn’t it?

A violation of the law —

Watts E. Davis:

Not under the Alabama decisions interpreting these matters Your Honor.

Hugo L. Black:

You mean not under the labor legislative?

Watts E. Davis:

Pardon sir?

Hugo L. Black:

You mean not under the labor legislative but these are cases, are they not, if a man can be sent to jail for prison for six months?

Watts E. Davis:

Yes sir.

Hugo L. Black:

And fined how much?

Watts E. Davis:

Yes sir.

A hundred dollars.

Hugo L. Black:

$100.

Watts E. Davis:

$100 and 180 days.

Hugo L. Black:

Tried first in the city policeman.

Watts E. Davis:

I don’t contend that they’re not penal.

They’re punished.

Earl Warren:

They’re not criminal law you say?

Watts E. Davis:

Under the Supreme Court decision in the State of Alabama, they are quasi criminal.

The rules of civil proceedings apply on appeal.

Your civil rules apply.

They must assign error and argue if the Court of Appeals is going to hear it on the Supreme Court.

Earl Warren:

What effect does a plea of not guilty have?

What issues does it brace?

Watts E. Davis:

The general issue is —

Earl Warren:

In a case of —

Watts E. Davis:

— they didn’t do it.

Earl Warren:

In a case of this kind.

Watts E. Davis:

They didn’t do it.

Earl Warren:

Well, they can enter, yes, but what issues can be raised under the plea of not guilty.

Watts E. Davis:

Oh, the question that they didn’t do the act complained of then the complaint —

Hugo L. Black:

What is that — what is required as I understand it, it used to be was that the State or the city proved its case beyond a reasonable doubt every element in it.

One element if you were trying to trespass after warning would be rule beyond a reasonable doubt that the owner of his own choice not because he had a gun in his bag had directed the man to leave, so that would be an issue in the case, wouldn’t it?

Watts E. Davis:

If it were brought up by a plea or a defense what —

Hugo L. Black:

We are not guilty.

Watts E. Davis:

Well —

Hugo L. Black:

Not guilty claims (Inaudible).

Watts E. Davis:

If I may say this, Mr. Justice Black, I think you’re going in — to watch the defense to this trespass saying all we’re involved is, it is proving that he did put the ordinance —

Hugo L. Black:

Yes.

Watts E. Davis:

— that says you must not do.

Hugo L. Black:

But the ordinance is based on the principle I suppose that he was ordered by the owner of his own choice with his own knowledge making up his own mind not to stay there, isn’t it?

Watts E. Davis:

Well, I would assume that someone wants to tell him —

Hugo L. Black:

Suppose they didn’t do that?

Supposed you have to charge —

Watts E. Davis:

Pardon?

Hugo L. Black:

— if you believe from the evidence in this case on the plea of not guilty.

Do you believe from the evidence in this case that the owner did not himself do this because he wanted to do it but because there was a man standing behind him with a gun in his bag?

They asked to charge it then.

There was evidence to that effect, could you convict?

Watts E. Davis:

I think once you prove the simple fact, he was told to leave the premises and didn’t —

Hugo L. Black:

You could —

Watts E. Davis:

— the State has carried its burden and then the defense takes over.

Hugo L. Black:

You could convict even though the evidence showed beyond the shadow of a doubt that the man had a gun in his back when he did it that somebody telling him, “You’ve got to do this”?

Watts E. Davis:

You have to tell him to get off the premises?

Hugo L. Black:

Yes.

Watts E. Davis:

No sir that would not be a voluntary act.

Hugo L. Black:

Well, it’s the same thing is it not, always been recognized if the law tells you that you can’t do something.

Watts E. Davis:

Well, you’re assuming of course that they acted under this invalid law and I am assuming that —

Hugo L. Black:

I’m not assuming.

Watts E. Davis:

(Inaudible) we hadn’t filed a charge.

Hugo L. Black:

I’m assuming that the State has to show that they acted and they exercised their own judgment and their own choice in ordering him to get out.

And what you have here is that there’s a law standing there, they have them in debate that if they don’t order them to get out there, they’ll go to jail themselves.

Watts E. Davis:

Well, as I interpret Your Honor’s question or statement, it looks like that the State in prosecuting any case, somebody shoot somebody else, they don’t have to show that it — they voluntarily did it, they’re going to have to show that they were not insane that the State has got the negative ever defensive element.

Hugo L. Black:

But they get —

Watts E. Davis:

But this is purely defensive I think what is on (Voice Overlap) —

Hugo L. Black:

That’s true beyond a reasonable doubt in every allegation but that doesn’t include that allegation I think to that ordinance.

Watts E. Davis:

Oh, the allegation simply says that he failed to refuse after being warned (Voice Overlap) —

Hugo L. Black:

Well, it would certainly be a bad ordinance wouldn’t it if it was based on the fact that the owner did that because the law told him to.

That would be a bad order, wouldn’t it, void?

Watts E. Davis:

Well, I think the ordinance is telling he’s got to make that election as bad and void, yes sir.

Hugo L. Black:

That would be void?

Watts E. Davis:

Yes sir.

And I think (Voice Overlap) —

Hugo L. Black:

I think that — that’s an essential element as that he did it himself, not because the State made it, I would think.

Watts E. Davis:

Well, if that were the law that in every case and I’m not a prosecutor that you probably guess, I’m a land attorney —

Hugo L. Black:

Well, (Voice Overlap) —

Watts E. Davis:

— in the City of Birmingham.

But I don’t think the law places any burden on the prosecution to come along in negative every possible defense it may creep into a situation.

As I see this, this is a defensive matter and you’ll notice in the discussion plea, Mr. Hall and the Court — Mr. Hall says first, “That if the had not gone in to Pizitz’s store and Mrs. Pizitz have not told them to get out the store”, and that’s on page 24 and 25.

He says, “We wouldn’t be here”.

And the Court says, “Well, is there any (Inaudible) between you and the city on this?”

In other words if Pizitz hadn’t told them to get out, well, they wouldn’t have been prosecuted and he says, “I don’t know”.

Then the Court says this, “In the issue in this thing whether they trespassed after warning”.

And he said, “I think so Mr. Hall”, the petition for counsel — counsel for petitioners.

Then the Court says one other thing, “Well, isn’t that issue, isn’t that the thing that you mean?”

And what did he say, “It certainly is Your Honor”.

So how could we be more doubly sure of what we’re trying in this case?

What the issues were?

How we were to fix the boundary lines of the dispute and not only by the pleadings but by the admission of the counsel himself that the boundary lines are — is — has there been a trespass committed?

Isn’t that the issue?

Isn’t that the thing which is the main –?

Hugo L. Black:

After warning.

Watts E. Davis:

Pardon sir?

Hugo L. Black:

After warning.

Watts E. Davis:

Yes sir.

Byron R. White:

Well, is there a — anything said (Inaudible)?

Are you saying that the rules of procedure applicable to this kind of a proceeding required the defendant to affirmatively — to raise this sort of a defense based on the Constitution?

Watts E. Davis:

Oh, very definitely, very definitely.

Byron R. White:

And that if he raised it in a proper form, are you saying that he had the burden of carrying that defense?

Watts E. Davis:

Well, it’s a matter that he had searched.

He has that burden of proceeding with it at least.

Byron R. White:

And what was the burden on the — what degree of proof is the case subject to in this kind of a proceeding, beyond a reasonable doubt or is it just a preponderance of the evidence or what is it?

Watts E. Davis:

It is beyond a reasonable doubt but may I say this at this point?

They have cited the Thompson versus Louisville case and of course the Garner case and we would like to join them in citing those two cases.

The rule that this Court enunciated and as I recall correctly in Garner was that the test is not the sufficiency of the evidence before the trial court but whether there was any evidence before the trial court.

They concede the evidence is positive in each case.

The employee of a store ordered them the premises.

So we have no issue there really.

Byron R. White:

Did the Court of Appeals get in considering the exclusion of the evidence that was excluded —

Watts E. Davis:

No, it was not argued.

It’s mentioned in the Court’s opinion that they had five assignments of error which they must — if they had to rely on them, assigned as error and argued.

The fifth, what it was, some question about evidence.

I believe it was in the evidence sufficed the prejudice, that’s my recollection but it appears in each case, the assignment of errors.

But they didn’t even argue that.

They didn’t argue any question of evidence, whatever in the case.

They simply argued that demonstrations were — that there were demonstrations, there were symbols of communications or symbols of something rather.

And if you know, the Court took off on one or two of those arguments.

But the only thing they argued before the Court of Appeals was the overruling of the — and they didn’t argue this, they’ve cited this error.

You’re reeling a motion to strike complaint that emerged and they file this motion to exclude the evidence, a motion for new trial.

And that — unless this motion excludes the evidence, may I say this, this question of state action gets into it.

If you’ll notice, there are 8 grounds, grounds 2, 3, 4, 7, and 8 say this if I may point out to the Court and invite your attention to them.

I think on page 6 you’ll find the first one in the Gober case (Inauidble).

In five of those grounds, they say it’s not the policy of the City of Birmingham or the State of Alabama.

They say it’s the policy of the customer and the usage of (Inaudible) or whatever particular department store was involved that has deprived them of their Fourteenth Amendment yearns.

The other three grounds, they don’t attribute to fall through — direct in accusing things as to anyone but that simply was a confirmation as I view it and what the simple issue was in the trial court in the first place, did they or didn’t they trespass after somebody told them to get off the premises.

Watts E. Davis:

And we had no other question and they didn’t bring that up until they got to this Court.

But the local counsel, there were five of them who were experts in this matter.

You will notice that motion to exclude the evidence five times of the eight grounds they assert.

It says it was the policy of the store or the policy custom in usage of the store, or the custom or the preponderant number of department stores in the City of Birmingham that deprived them of their rights.

So we were not arguing any constitutional issues in this thing.

But since they brought them up, I think right here, the local counsels directs them to the policy of the stores themselves as confessed with the State and the city.

It fairly — clearly answers the question.

Earl Warren:

Is your position that the federal questions were not adequately raised below?

Watts E. Davis:

Not raised at all sir.

Well, adequately perhaps is a better way to put it but in the demurrers they were not properly raised in a motion to strike, that doesn’t even lie and there had been two cases from Alabama for this Court, the (Inaudible) versus Birmingham and Taylor versus Birmingham where the petition for certiorari was denied that’s involved.

And then after the evidence was taken now we went to issue on that several question.

After the evidence was there and they come along and filed a motion to exclude the evidence never suggesting that the evidence was sufficient in any way.

They simply say the evidence shows that these stores were exercising these policies.

Arthur J. Goldberg:

(Inaudible)

Watts E. Davis:

Well, I recall that in —

Arthur J. Goldberg:

Is that the motion (Inaudible)?

Watts E. Davis:

Which ground?

Please sir, you —

Arthur J. Goldberg:

Well, look at page 12 of the record.

Watts E. Davis:

Yes sir.

Arthur J. Goldberg:

And the judgment of the Court granted below (Inaudible) each defendants had the evidence in this case, the evidence to go on the specific there is — this ruling, to overrule the objection and then on (Inaudible).

Is that properly raised the issue to (Inaudible) the case?

Watts E. Davis:

I would not think so.

The case had already been tried at this point Your Honor.

Arthur J. Goldberg:

But you didn’t try it yourself.

First, in the (Inaudible) pleadings been demurred and then (Inaudible) into evidence.

And was it to exclude evidence that (Inaudible) reference to constitutional issue?

Watts E. Davis:

Constant reference, yes sir.

Yes sir, they were constantly referring to constitutional proposition but not once did they come in with a formal plea or a special plea as this Court has said in the Mendenhall — Hill versus Mendenhall.

How would any lawyer know how to prepare a case if they were not to have pleadings?

Earl Warren:

You consider — you may finish that answer.

Watts E. Davis:

Yes sir.

Earl Warren:

Mr. Davis, you may continue your arguments.

Watts E. Davis:

Thank you sir.

May it please the Court.

One other question which was injected into the controversy here and I say here because I respect to submit it was never injected under the controversy in the state courts.

Was this question a police action?

As I mentioned earlier in Alabama, you assigned to their appellate courts your errors that you wish the Court to consider.

Now the Supreme Court rules specifically state that if you don’t assign them or don’t argue them they won’t consider those grounds.

But these acts considered — are injected into the thing by appellate counsel and not by a local counsel in the state courts.

But it has been injected under the thing here which I don’t think it’s a proper forum for it without the Court having first had a chance to rule on it.

They bring up the question how the arrest were effectuated and brought about.

Again, I say that the plea was a simple general denial.

Had we known that this was one of the channels that they wanted to proceed on by the pleadings then we would have brought the police records to Court?

We could have mastered up the complaint records.

We could have looked for witnesses to say or to find out who made this report to the police.

The police didn’t come there through some form of mesmerism.

Someone initiated this thing but it was not upon us to explain that situation under a simple general issue in this matter.

Earl Warren:

Well, we’ve had a good many of these sit-in cases where the police did initiate it and we had to reverse it for that reason.

Watts E. Davis:

Well, I think that would be the problem, right.

Earl Warren:

So, it is a mesmerism, that’s a (Voice Overlap) —

Watts E. Davis:

I think that would be a proper action.

But I think this that we’ve got to try the case within the framework of the pleadings.

We can’t shoot mugshot in every direction and hope one will hit here and one will hit there.

Going back to your Hill versus Mendenhall case, the fundamental principle of pleadings is to define the issue so the Court may declare the law and the parties may know what to meet by their proof and agreement.

But in any event, the petitioners themselves, elicited from the officers who were testifying that for us who’s in possessed, when the arresting officer arrived, he or his superior is talking with people in the store presumably witnesses who had seen this thing, getting information and they directed the arresting officer to make the arrest.

They brought it out also that in Laughlin’s, one of the officers through cross-examination, one of his superior officers have been told that two of these volunteers have been told to leave and refused.

So it — there was a duty on him to make an arrest.

An ordinance had been violated.

And in the case of (Inaudible) they — I think as they have brought it out in the trial court, Mrs. Evans, the (Inaudible) manager told the officer she had told the two boys to leave and they refused and that in his presence she told them.

Watts E. Davis:

So in the presence of the officer, the offense was committed.

But I say again and I hope the Court would adhere to its rulings.

It has adopted in the past that these matters which are not before a state court will not come up here for a first hearing.

In other words, not let them come here to try the case.

Earl Warren:

Mr. Davis, may —

Watts E. Davis:

Yes sir.

Earl Warren:

May I ask if in your — if in your brief, you have cited the statute which compels a special pleading in this case to raise these questions?

Watts E. Davis:

Yes sir, its Title VII.

Earl Warren:

It’s in your brief is it?

Watts E. Davis:

Yes sir.

Earl Warren:

Well, if it’s in your brief, that’s all.

Watts E. Davis:

And it relates to civil cases and I also spell out that these are quasi criminal cases that all your rules of evidence that which apply in civil cases apply in quasi criminal cases to appellate rules that apply into civil cases apply in quasi criminal cases.

It is a civil proceeding.

Now the Court of Alabama whether rightly or wrongly is held that an offense against the city ordinance does not rise for the dignity of a crime whether that is its philosophy in this matter, I don’t know.

They don’t go into it.

Earl Warren:

This isn’t an ordinance.

This is a state law, isn’t it?

Watts E. Davis:

Well, this is a city ordinance they were prosecuted on this.

Earl Warren:

Oh yes, yes, I remember.

Watts E. Davis:

City of Birmingham’s ordinance.

Earl Warren:

Yes.

Watts E. Davis:

But in any event, this Court have said —

Hugo L. Black:

That may be the rule —

Watts E. Davis:

(Voice Overlap)

Hugo L. Black:

— to which you referred in your brief, I —

Watts E. Davis:

Pardon sir?

Hugo L. Black:

You said there was rule in your brief about the —

Watts E. Davis:

It’s the code section in volume — in Title VII.

Hugo L. Black:

Well, that is cited in your brief here?

Watts E. Davis:

Yes sir, yes sir.

Hugo L. Black:

Well, if you don’t know, that’s alright, I’ll find it.

Watts E. Davis:

But it is Title VII and I think its 235, let’s see — Court of Alabama, 225.

I copied a portion of it on page 5 —

Hugo L. Black:

Page 5.

Watts E. Davis:

Or at least I make a reference to it at that point.

I think it’s in Shuttlesworth case perhaps it was that I copied part of it.

But —

William O. Douglas:

(Inaudible) the best way to present the evidence that he offers being (Inaudible) at the department store?

Watts E. Davis:

He went into the policy of other stores, I recall and I think the Government suggested that is being tantamount to an attempted to show the city ordinance.

I made the objection that the policy of the other stores would not be involved.

He was going not in Birmingham where this case came up but into other areas and I think the courts there it was and perhaps erroneously I won’t comment on it, that policy had nothing to do with it.

(Inaudible)

Hugo L. Black:

It was suggested, wasn’t it?

Watts E. Davis:

I believe he said, aren’t we trying — a question here whether he violated this ordinance.

But I think they brought nothing before the Court in the nature of a formal plea to suggest these things.

Hugo L. Black:

May I ask you what kind of special plea would have been filed to raise the issue of that — this man did not do this because of his own choice but because the law forced him to do it?

What kind of plea?

I — probably it’s been changed since I was there, that I do not recall.

Watts E. Davis:

Well, it would just be a plea setting up affirmatively these defensive matters for that they exist in the City of Birmingham, an ordinance that define this Section so and so and that it was in compliance with this ordinance as the storeowner operate — made this request to leave or direct them to leave.

And so we’ll put it in issue.

Hugo L. Black:

You mean that the burden of proof would have been put in him on the Alabama law to prove that the man actually gave the order of his own choice?

Watts E. Davis:

I don’t conceive the choice is an issue.

The ordinance says, if a man tells you to get off his property, you must leave.

If you don’t, you violate the ordinance.

If that’s the ordinance as Your Honor is thinking of.

Hugo L. Black:

Well, what you are saying is that a man — whether the man did it because the law compelled him to do it or whether he did it because he wanted to, it would be immaterial to prove any crime.

Watts E. Davis:

What’s the defensive matter, may I submit?

Hugo L. Black:

Defensive matter, that would be — the burden would be put on him.

Watts E. Davis:

That’s right sir.

But he hasn’t even put it in issue.

Watts E. Davis:

Irrespective of whose burden it is, it’s not even an issue in this case.

Hugo L. Black:

Have you cited any cases to that effect with reference to (Voice Overlap) —

Watts E. Davis:

I cite a case to this Court.

Hugo L. Black:

The defendant —

Watts E. Davis:

I cited —

Hugo L. Black:

— affirmatively proving on his part that which is an essential element of the crime if assuming it shows an essential element of the crime.

Watts E. Davis:

Well, Your Honor perhaps I made this mistake.

I assume that it was not a question for the State.

To me, it’s something to a plea of contributory negligence.

I assume this Your Honor on a theory (Voice Overlap) —

Hugo L. Black:

(Voice Overlap)

Watts E. Davis:

— an enemy.

Hugo L. Black:

You don’t plea it contributory negligence down there to cases where the people had —

Watts E. Davis:

No, what I’m — speaking of the same general situation.

Hugo L. Black:

I suppose they’d be sent to jail for six months.

Watts E. Davis:

No sir, but basically you have the affirmative matter and defensive matter.

You’re the defendant in this thing —

Hugo L. Black:

I thought, our court there stopped very tenaciously to the idea that the business of Government whether it’s a city or state to prove guilt beyond a reasonable doubt.

Watts E. Davis:

Proved that he committed the act charged.

Hugo L. Black:

Beyond a reasonable doubt?

Watts E. Davis:

Yes sir, yes sir.

Hugo L. Black:

Well, you wouldn’t just have to prove that he shot somebody.

You’d have to prove he shot him with malice and deliberate — deliberation and so forth.

He wouldn’t have to plead any of that would he, as a defendant?

Watts E. Davis:

Well, I don’t know but I am —

Hugo L. Black:

(Inaudible)

Watts E. Davis:

I don’t know that I’m a 100%, the Court decided on that proposition though it’s not exactly the question here.

Hugo L. Black:

What about an alibi, does he have to plead especially an alibi?

Watts E. Davis:

No sir, because he pleads not guilty which means I didn’t do it and if I can show that I was somewhere else at the time then certainly the jury can assume using his common experience as a common sense but if he was somewhere else he’s sure didn’t do it.

Hugo L. Black:

Well, what he means when pleading guilty — not guilty here of course this might be a state problem but I’m just interest — I have to confess my interest to it, what he is charging is, I’m not guilty of — he may say, I’m not guilty of being there.I’m not guilty of staying there or you may say I’m not guilty of staying there after the defendant — after the owner of the property because he wanted to, not — it’s not because the State made him, ordered me to leave.

Watts E. Davis:

Well, our position is that he simply says, “I’m not guilty of what you say I did”.

Now we say he did on — there were two elements to what we say he did.

Number one, he was on the premises, he was told to leave.

But number two, he refused to leave.

Hugo L. Black:

Supposed he’d been told to leave by a man who came in from the street.

Watts E. Davis:

Well, they don’t say that that was a fact.

They concede that —

Hugo L. Black:

Of course it was.

Watts E. Davis:

— before he did it.

Hugo L. Black:

Suppose it was.

Watts E. Davis:

I think I mentioned in my brief that if that situation existed, I didn’t feel like the ordinance had been violated.

But again —

Hugo L. Black:

You think the ordinance had been violated?

Watts E. Davis:

I would not think so and I mentioned that in my brief.

Hugo L. Black:

Oh, you weren’t — oh, I thought you were.

Watts E. Davis:

Yes sir.

I said that in my brief.

I didn’t think it can be violated but they make no such contention in this case.

Earl Warren:

Mr. Davis, you cite your Alabama Code 1940, Title VII, Section 225 and you quote as follows – “The defendant may plead more pleas than one without unnecessary repetitions.

And if he does, not rely solely on a denial of the various cause of action.

It must plead especially the matter of defense”.

Now that sounds to me more like a civil proceeding than a criminal proceeding —

Watts E. Davis:

Well —

Earl Warren:

Does this specifically apply to criminal cases?

Watts E. Davis:

It is — we might suppose that that particular Code Section applies by its own language to civil cases.

Earl Warren:

To civil cases?

Watts E. Davis:

Yes sir.

In our brief, we have developed its application to this case.

Earl Warren:

Well, what — is there any case that holds that this are — these civil rules apply to criminal cases?

Watts E. Davis:

Rules of evidence.

Watts E. Davis:

We don’t have a whole field of law on —

Earl Warren:

Is there any one case that you cite?

Watts E. Davis:

Not — no sir.

No sir.

But under even criminal law if you wanted to come in and say the defendant was insane, you would put it in a plea of insanity.

But If you want to plea there was an involuntary act where he’s charged with perhaps murder, you want to show this involuntary act.

You’d have to show something.

You admittedly did it, it’s more like a confession and avoidance, really.

You admit you did the act that say you did what?

And then we avoid the act even in criminal law.

Hugo L. Black:

Well, have you have a —

Watts E. Davis:

That this happens to fall in a civil case.

Hugo L. Black:

The elements of first degree murder down there are (Inaudible) — premeditated killing with malice aforethought.

Watts E. Davis:

That’s right sir.

Hugo L. Black:

Do you mean that —

Watts E. Davis:

It’s presumed from the homicide —

Hugo L. Black:

That he does — well, I’m not talking about what’s the inference they could find from evidence that it was done with malice aforethought but do you mean that the burden is on the defendant to show the didn’t do it with malice aforethought?

Watts E. Davis:

Of course, the burden is on him, yes sir.

Well, I’d say this is a presumption.

When I throw a weapon and I fired it to the man, they don’t have to go beyond that and say, “Oh, but in his heart, his heart was black, he intended to do it”, while the evidence speaks for itself but if I want to show that somebody dropped me with something or has turned me into a pinch of insanity through some process, I would come along and set that up as a defense but certainly the State isn’t going to say that all of these various defenses didn’t happen —

Hugo L. Black:

But all of these —

Watts E. Davis:

— because they would never their case.

Hugo L. Black:

If it’s a question — of course, it maybe too far from this but if — but I have as to the — if it’s a question of showing and it was done with deliberation and malice forgetting the words presumption, the Court always charges a jury, doesn’t it?You must find from the evidence that he did it deliberately and with malice aforethought and find it beyond a reasonable doubt —

Watts E. Davis:

I think that’s (Inaudible) —

Hugo L. Black:

— without regard to pleading.

Watts E. Davis:

I think that’s even in the indictment, yes sir.

So I think they have to — they generally will show some motive involved with it.

Hugo L. Black:

My — I would like to come back if I could to my question.

Assuming that you asked for those to file a special plea and assuming that the State’s proof was sufficient to withstand the motion for instructed burden of not guilty, would it be permissible for the defendant in examining — in putting on his testimony to offer the proof that he said he wanted to offer with reference to Mr. Pizitz’s policy.

Watts E. Davis:

Assuming that it was a proper form of plea or injected in to — that in a proper issue, I think so.

Hugo L. Black:

I mean, assuming that he did not raise it by plea at all —

Watts E. Davis:

Yes sir, assuming (Voice Overlap) —

Hugo L. Black:

Just like in cases here.

Watts E. Davis:

Yes sir.

Hugo L. Black:

And that he was supposed to raise it.

The law required him to raise it, you’ll say.

And that your proof or the State’s proof was sufficient to go to the jury, could he in rebutting your proof of trespass on this, I guess you would have to prove that it was a trespass, wouldn’t you?

Watts E. Davis:

Yes sir.

That he remained after he was warned to leave.

Hugo L. Black:

Now assuming that in common colloquy, we told that you met a prima facie proof in a civil action.

Watts E. Davis:

Yes sir.

Hugo L. Black:

I suppose it’s not any such thing as criminal action.

And you went — you were able to go to the jury on that.

Could he request that prima facie proof by offering proof that you tendered as I understand it on page 25 that Mr. Pizitz will assume had no such policy of segregation and that he wanted these people here, indeed he has indicted them to come in.

Watts E. Davis:

I think if he of course have put it in a form of a plea or any pleading as to it.

Hugo L. Black:

I mean suppose he didn’t plead it.

Watts E. Davis:

No sir.

Then I quoted to it.

Hugo L. Black:

The evidence wouldn’t be admissible.

Watts E. Davis:

I’m certain not in Alabama.

Hugo L. Black:

The judge didn’t go off on that ground.

Watts E. Davis:

I beg your pardon.

Hugo L. Black:

The judge didn’t go off on that ground.

He said it was immaterial.

Watts E. Davis:

Well, what he said was as I understood it, it was that the witness who was an employee of a store, his knowledge of the law was not competent really and later on he (Voice Overlap) material.

Hugo L. Black:

Mr. Pizitz’s policies in the Court on 25, Mr. Pizitz’s policy would not be material as I conceive this.

That’s what he said.

Watts E. Davis:

Well —

Hugo L. Black:

If that were true, it looks like to me that he would have said that you didn’t plead this or the evidence is not admissible.

Watts E. Davis:

Well, I think the Court was right in this particular instance where it was not made an issue and they had the right to drew up the boundary lines on this dispute.

Watts E. Davis:

They have (Inaudible) — they had been in more of these cases than I have.

Hugo L. Black:

That wouldn’t be meeting your burden of showing a trespass.

I wouldn’t be trying to meet your burden — I mean trying to counteract your burden, your proof.

Watts E. Davis:

No sir.

We only had two elements to prove.

One, they were told to leave and two, they refused and the only burden on the State — on the city.

Because they didn’t file any plea — they filed all sorts of other things, very extensive pleadings but elected to go to issue on the general denial.

Earl Warren:

Where can we find any discussion in any cases of the Supreme Court of Alabama or in any textbooks on the requirement to file special pleas in criminal cases in your State?

Watts E. Davis:

In criminal cases.

Earl Warren:

In criminal cases, yes.

Watts E. Davis:

Your Honor, we have in the code, forms of pleas to file any criminal cases.

I think they assume that —

Earl Warren:

Well, why don’t you cite them in your brief instead of citing this as a general language such as there is in 25 —

Watts E. Davis:

Well, I stopped to the civil rules which we contend that this case comes under it and the Court of Appeals cited cases.

It’s in the opinion of the lower court, (Inaudible) versus State, that —

Earl Warren:

And that’s the only time that such thing has been discussed in the history of Alabama?

Watts E. Davis:

No sir.

I’ve cited two cases this morning where on appeal, your civil rules apply (Inaudible) versus State came to this Court on petition for certiorari.

Senator Glen Taylors case versus City of Birmingham came to this Court.

The petition for certiorari was denied.

But it said in all of those cases, these things follow civil rules in Alabama, civil rules.

They had another case before this one that came to this Court where the civil rules in the record that didn’t get to certain questions (Inaudible) —

Earl Warren:

And that is because you call it a quasi criminal —

Watts E. Davis:

Well, I never have really liked the word quasi criminal, how much is quasi?

I don’t —

Earl Warren:

Well, that’s what I was wondering because Justice Black was asking you about a first degree murder case and you said that there, there would have to be a special pleading.

So is that under the civil rules too?

Watts E. Davis:

No sir, I’m sure not.

I think you cannot —

Earl Warren:

What set of rules (Voice Overlap) —

Watts E. Davis:

— under said common law rule under the same rule enunciated by an earlier court hearing in Hill versus Mendenhall that — the part of is that it would be applied in what the issues are. The courts got to know it.

Hugo L. Black:

Have you read the case of Leland versus Oregon.

Do you happen to read it in studying this case where we held up the question as to whether they could put the burden of proof on the man to prove insanity in the Court — majority of the Court held that they could in an insanity because it had always been done but pointed to the fact that this Court have held that this Government — Federal Government must prove every essential element of a crime.

Watts E. Davis:

Well, I think we must prove every essential element of the fact.

Hugo L. Black:

You think that — there’s no — is there a difference, maybe I haven’t quite understood.

Is there a difference in your mind the pleadings required on an appeal from the Recorder’s Court which this was, wasn’t it?

Watts E. Davis:

Yes sir, yes, Your Honor.

Hugo L. Black:

Is there a difference in your mind as to the pleadings a defendant is required to put in, in a case in the Recorder’s Court where he’s been convicted of a defense like this —

Watts E. Davis:

Yes sir.

Hugo L. Black:

— to the rules that apply if he was charged with a state crime or misdemeanor?

Watts E. Davis:

I think generally, the same rule is applied but the courts have specifically stated that these cases are a quasi criminal case.

Hugo L. Black:

Well, I understand that because I (Voice Overlap) —

Watts E. Davis:

I agree with you despite —

Hugo L. Black:

I don’t know what that means.

Watts E. Davis:

Yes sir.

I don’t see but two basic differences in making a quasi criminal and not civil.

One is that in civil, of course, the motion exclude the evidence won’t apply it, must be a motion for the affirmative charge.

There’s another time at the time, it slipped through my mind but there’s no real basic difference that I see in our pleadings down there.

Hugo L. Black:

I suppose that he has also proved that it was not a trespass to that.

Watts E. Davis:

Well, they should approve either one or two things.

They weren’t asked to leave or when they were asked, they did leave but they concede that those conditions existed and we met that burden of proof.

Hugo L. Black:

Well, wouldn’t that be true with reference truth and that Mr. Pizitz did not want them to leave.

He was acting under state’s requirement of law.

Watts E. Davis:

Of course Mr. Pizitz himself didn’t ask that somebody who was simply quoting him and saying what he assumed Mr. Pizitz meant in this thing.

Hugo L. Black:

Oh, what I mean, they offered to prove as I understand it (Voice Overlap) —

Watts E. Davis:

But they had put in a plea of state action, certainly, they would have been able to come in and establish that.

Hugo L. Black:

Well, I mean just in meeting your burden.

Your burden must be proved that there was a trespass.

It was up to them to prove there wasn’t a trespass.

That’s what you say.

Watts E. Davis:

In essence, yes sir.

Hugo L. Black:

Now, in trying to prove that there was not a trespass, it would have been appropriate for them to offer proof that Mr. Pizitz instead of ordering them out indeed wanted them to stay.

But — and now read — told them to go out because it was the State law.

Watts E. Davis:

Well, I would’ve said that, it would’ve been a very good false value — it had Mr. Pizitz up there and testified to that and prior to that it could have pleaded to that effect and let the Court know that that was an issue in this case as well as the question did they or were they in fact ever told to leave and did in fact leave after they were told to.

Those were the two issues that were there.

They could have put the other issues in and in fact, I think it would have been advised to bring Mr. Pizitz to say, “Well, I want them to sit at the lunch counter.

I’d like to have them here.”

But this confound the city ordinance which I know is invalid (Inaudible) but that isn’t in this record.

Hugo L. Black:

Well of course, practically speaking, I suppose it would be from a — was on a persuasive argument against construing the ordinance in such a way that the guilt or innocent could be determined in an unknown hidden motive which prompted the man to give the order, wouldn’t it?

That is — that couldn’t be a very satisfactory way, was it?

I’m not saying that you haven’t advocated that.

Watts E. Davis:

No sir.

Hugo L. Black:

I’m just thinking about that as a rule of law.

Watts E. Davis:

I — I’m not completely clear on what His Honor had referenced to —

Hugo L. Black:

What I mean is this.

Suppose it does depend on — so as you have to prove whether he did it for one reason or another.

The only way you could do that would be to prove someway of what was in his mind (Voice Overlap) —

Watts E. Davis:

Proof of mental operation, a mental operation.

Hugo L. Black:

That would be a pretty difficult that —

Watts E. Davis:

I think it would be.

Hugo L. Black:

Sometimes the law resorts to that but not unless it has to do, does it?

Watts E. Davis:

Yes sir.

The mental operations, I think we’d get into a rather dangerous (Inaudible).

Earl Warren:

Well, Mr. Davis, suppose you had a simple assault with a deadly weapon case and the State proved that the defendant used a wrench let’s say and assaulted a person with it and then arrested.

That would incorporate all the things that are ordinarily necessary in order to prove an assault with deadly weapon, wouldn’t it?

Watts E. Davis:

Yes sir.

Earl Warren:

Now, do — if the — suppose if the defendant wants to prove self-defense, is he obliged under your law to file a special pleading?

Watts E. Davis:

Not in writing, it’s my impression in the criminal side.

Earl Warren:

Well, do these rules make a distinction between writing and orally?

Watts E. Davis:

Well, the pleadings must be filed in writing exactly speaking —

Earl Warren:

Well, why didn’t you differentiate between them?

Watts E. Davis:

I don’t know on the criminal level that’s why I went to some extent to point out these things were civil in my brief because I think that rule — we’ve traveled pretty much on the common law in the criminal cases.

We simply prescribed the forms of pleas in criminal cases if you want to put them in issue.

Self-defense I think is just a matter of argument and of course it’s — it would — I don’t think it would even require a plea because the events means that he did it without some provocation.

In other words, its negative in its sense — in itself, the self-defense.

Earl Warren:

But don’t you get right back the same thing here (Voice Overlap)?

Watts E. Davis:

I don’t think so.

Earl Warren:

Will you prove that he was told to leave and he doesn’t leave?

He says there was a reason other than a lawful reason as to why this man put me off his property?

Watts E. Davis:

Well, I —

Earl Warren:

Isn’t that equivalent?

You said a little while back that it was equivalent criminal contributory negligence.

Well now, why isn’t that just as much a plea under the general issue as self-defense?

Watts E. Davis:

Your Honor, I can’t answer your question in all of these fringed areas.

I will just answer — I admit I can’t.

Earl Warren:

That’s fine.

Arthur J. Goldberg:

Mr. Davis ask you this?

You refer to your ordinance which is in the record at page 58, would it not be a violation of your ordinance as agreed on its face or any of these defendants to have refused to leave after being warned by the police independently of what the storeowner said?

Watts E. Davis:

I would not go that far personally sir.

Arthur J. Goldberg:

But doesn’t the State — doesn’t the ordinance say that?

Watts E. Davis:

It said that after being warned, I think we have to assume it comes in our Code out of the chapter heading of trespass and of course trespass assumes that there is a proprietary address and I don’t know how we could assume that the police officer had any proprietary interest.

Arthur J. Goldberg:

Except the —

Watts E. Davis:

Heading of trespass.

Arthur J. Goldberg:

Except the ordinance itself does not require the warning to be by the owner.

Watts E. Davis:

I think by implication, you’d have to construe it that way and its context as a trespass ordinance.

Someone in possession or some agent, designee or a servant of the person in possession or at least Mr. Pizitz’s greater — must be greater than the customer who is directed to leave.

Arthur J. Goldberg:

In other words, what you’re saying here is that the ordinance doesn’t say so but it would have to be construed that way.

Watts E. Davis:

I think he would have.

Arthur J. Goldberg:

But wasn’t the complaint here based upon the ordinance and the complaint itself also didn’t say anything about the owner.

So isn’t the non-guilty plea then putting an issue — all that was put in an issue by the complaint?You refer to the complaint?

Arthur J. Goldberg:

The complaint also doesn’t say who did the warning but just says after being warned not to do so.

Watts E. Davis:

Well, that follow the language of the ordinance after —

Arthur J. Goldberg:

Yes.

Watts E. Davis:

— being warned.

Arthur J. Goldberg:

So from the standpoint of the pleadings going back to the point which we have been discussing, didn’t the not guilty plea put an issue to everything that the complaint alleged.

Watts E. Davis:

That’s right sir, yes sir.

And if someone other than a person in authority had ordered them off, that would be an issue.

We must prove that they were warned and I think it goes without saying that a proprietary address must be involved in that person warning.

Arthur J. Goldberg:

Well, must you prove then that they were warned and in fact ordered off by the defendant and not by the State — by the owner and not by the State?

Watts E. Davis:

No sir.

I think the evidence showed that these were employees which they concede.

They have never denied that.

They don’t raise the issue to some stranger or some policeman ordered them off the premises.

And I don’t think the officers could order them off.

They took the reports after talking with the people there.

Earl Warren:

Very well Mr. Davis.

Watts E. Davis:

Thank you sir.

Earl Warren:

Mrs. Motley.

Constance Baker Motley:

Mr. Chief Justice, I think the controlling consideration is whether the court below or the highest court of the State which could have rendered an opinion or did render an opinion, considered and disposed of the constitutional issues which we are here presenting to this Court.

And on page 61 of the record, the Court in the last paragraph of its opinion says, “Counsel has argued among other matters, various faces of constitutional law particularly as affected by the Fourteenth Amendment of the Federal Constitution such as freedom of speech”, in regard to which counsel state, “What has become known as a sit-in is a different but well-understood symbol, meaningful method of communication”.

And the Court says, “Counsel has also referred to cases pertaining to restrictive covenants.

We consider such principles entirely inapplicable to the present case.”

And on page 60 of the record, they point out that they can consider in this type of proceeding because the civil rules govern on appeal, the matters raised and argued in the brief.

And so —

Earl Warren:

Where does that appear on the — on the page, was it —

Constance Baker Motley:

In brief for counsel — in brief, counsel for appellant argues that the complaint is insufficient — is insufficient and not setting forth — I’m sorry, that’s not it.

Here, it’s on page 59.

Earl Warren:

59.

Constance Baker Motley:

This being an appeal from a conviction for violating a city ordinance.

It is quasi criminal in nature, and subject to rules governing civil appeals.

Constance Baker Motley:

Accordingly, we will limit our review to errors assigned and argued in appellant’s brief.

And of course, this is cited in number of Alabama cases.

Hugo L. Black:

Does that mean that in — I think maybe it does that in criminal cases now, what they call criminal state cases, they’re not required to file assignments of their own.

I’m sure that’s true with capital cases.

Is that the distinction that this opinion is drawing?

Constance Baker Motley:

Well, I really —

Hugo L. Black:

(Voice Overlap)

Constance Baker Motley:

I really don’t know.

Hugo L. Black:

— this is appeal from the Recorder’s Court, they’re not required to assign error?

Constance Baker Motley:

Well, it appears if that’s what they mean that all you have to do is to raise certain — well, accordingly, we will limit our review to errors assigned so that errors were assigned —

Hugo L. Black:

And argued in the brief.

Constance Baker Motley:

— and argued in appellant’s brief.

Byron R. White:

As a matter of fact, (Inaudible)?

Constance Baker Motley:

That’s right.

And these matters and particularly the Fourteenth Amendment questions was certainly assigned as error and argued in our brief and considered by the Court and disposed of by the Court.

William J. Brennan, Jr.:

(Inaudible) that even if by (Inaudible) future points it makes.

And in fact the Supreme Court paid no attention in considering everything that should be raised in the pleadings (Inaudible) where we don’t have the before us.

Constance Baker Motley:

That’s right Your Honor.

William J. Brennan, Jr.:

Procedural right of error.

Constance Baker Motley:

That’s right Your Honor.

William J. Brennan, Jr.:

But that was — the Court said not to consider the — there was no issues as to that (Inaudible).

Constance Baker Motley:

Yes, and on that point, we say you have the statute which says that the Court must take judicial notice —

Byron R. White:

But the court didn’t.

Constance Baker Motley:

— but it didn’t.

But this Court can take judicial notice of —

Byron R. White:

(Inaudible)

Constance Baker Motley:

Yes.

We’ve cite it in our brief.

William J. Brennan, Jr.:

(Inaudible)

Constance Baker Motley:

Yes, I believe it is.

Byron R. White:

Then it wasn’t (Inaudible) in the Court that they entered.

Constance Baker Motley:

Our petition for cert — I’m sorry, I believe —

Byron R. White:

(Inaudible)

Constance Baker Motley:

— in our petition for cert.

Byron R. White:

What would be then (Inaudible)?

Constance Baker Motley:

Yes.

Well, what I’m saying is that here, the Court was required by the State law to take judicial notice of this ordinance and —

Byron R. White:

(Inaudible) like to say that, (Inaudible) Court said that no issue about the ordinance that was made.

An issue has been raised and that the appeal to introduce to the Court (Inaudible) will be required judicial notice to say that issue (Inaudible)?

Constance Baker Motley:

Well, I think really, we did more than that.

We said it to the Court, our whole defense is the ordinance and I think that when we said that, we were saying everything that we were required to with this kind of proceeding to advise the Court and the other side of what our theory was.

William J. Brennan, Jr.:

(Inaudible)

Constance Baker Motley:

And —

William J. Brennan, Jr.:

— into pleadings in the state court of Alabama that you challenge the ordinance?

Constance Baker Motley:

In the brief, I believe they did mention it because the Court itself says that it was not raised by a pleading.

You’re here arguing it but it wasn’t raised by a pleading.

That’s the way they treated it.

William J. Brennan, Jr.:

But did they in fact consider it?

Constance Baker Motley:

Well, they considered it in the sense that they said, “Here, you are arguing it and you didn’t put it in a pleading.

We think it should have been raised by a plea.”

William J. Brennan, Jr.:

(Inaudible)

Constance Baker Motley:

That’s right but then they — as to that ordinance.

But then they went on to decide that this case was not governed by the restrictive covenant cases.

And the only reason we’re assigning the ordinance was to show that there was state action and violation of the Fourteenth Amendment.

But again, even if the ordinance were not involved here, we would still be properly before this Court on Shelley against Kraemer because there was this massive state policy of racial segregation which we say compel the owner to put these people out and the State cannot escape responsibility for that.

I would like to ask you two questions.

From your brief in the Supreme Court, did you raise specifically the exclusion or the alleged exclusion of inquiry respecting the State ordinance, the city ordinance?

Constance Baker Motley:

I don’t recall.

As error, did you raise that as error?

Constance Baker Motley:

Just a moment.

Constance Baker Motley:

I don’t believe it was Your Honor raised as such.

Potter Stewart:

Were they — the assignment of error into the —

Constance Baker Motley:

The exclusion of the test of the evidence after —

That’s — I’m talking about the brief.

Constance Baker Motley:

In the brief?

In the brief.

It was not raised (Voice Overlap) —

Constance Baker Motley:

Now, that I don’t have a copy of — with here so I can’t answer that with definiteness that it was so raised.

I wonder with the permission of the Chief Justice you would leave a copy of the brief in the Supreme Court.

Constance Baker Motley:

Yes, we will.

We’ll try to get a copy of the brief that was presented in the Supreme Court of Alabama.

Now, I wanted to point out with reference to a question asked me earlier by Mr. Justice Goldberg.

There was in the record a stipulation that the rulings made in the first case would apply to all other cases and that appears on page 106 of the record and on page 122 of the record.

Not just the pleadings were to be the same but the rulings which he has made in the first case were the rulings in the other cases and that’s why they didn’t again raise that question as to the ordinance.

(Inaudible)

Constance Baker Motley:

122, 106 and 122.

And as I‘ve said before in closing, this ordinance was just a part of a massive state policy here of racial segregation and the owner was influenced and compelled by this policy to refuse service to these petitioners at this counter.

And the State bears full responsibility for the owner’s exclusion where they specifically relied on the ordinance or not because here was a state policy which compelled them to exclude these people from the counter.

And we say that for this reason, the Fourteenth Amendment is clearly violated here and the State certainly cannot escape responsibility until such time as it takes affirmative action to change that policy such as has been done in other Northern states by the enactment of civil rights laws.

I think the influence of the states designed to set up a segregated society as what is controlling here.

William J. Brennan, Jr.:

(Inaudible) exclusion to fill up (Inaudible) City of Birmingham.

Constance Baker Motley:

Yes they are sir, they are.

They’re not like the other cases where the policy has been abandoned.

Potter Stewart:

I didn’t quite understand your last point.

You — if the State of Alabama and all its municipality should repeal all statutes and ordinances which requires segregation, you’d still be making your arguments.

You’d say the State would have to go further and perhaps pass a suit — pass a legislation requiring integration before you —

Constance Baker Motley:

Well, I think if those laws were repealed with the understanding and a preamble to the repeal that this was done to do away with state enforced segregation —

Potter Stewart:

Right.

Constance Baker Motley:

— we have a different situation.

But as long as the State’s policy is there on the books, this is the thing which we say influences discrimination in a public place of this kind whether the statute or ordinance specifically says department store or drugstore or whatever the situation maybe that the State’s policy is there.

Constance Baker Motley:

And that’s the operative consideration which makes the person exclude you.

And until the State chose some affirmative change in that policy, that influence is still there, we’d say.

Potter Stewart:

But I didn’t get and I still don’t quite Mrs. Motley was your reference to affirmative legislation requiring non-segregation.

Constance Baker Motley:

Well, what I have in mind is that here, Alabama has not.

Potter Stewart:

As there is — of course there’s much to that legislation in the various states, (Voice Overlap)?

Constance Baker Motley:

That’s right.

Alabama in this case has not required equal treatment of Negroes in places of public accommodations as this Court in deciding the civil rights cases assumed that the states would.

I remember the civil rights cases, they said, we assumed that the states would protect you against this.

Well, this isn’t true in Alabama and these other states.

The States of course has done just the opposite and they have done it in a massive way so that the whole society is set up on a segregated basis.

And this influences the determination of businessman in the State.

And we say that the State in order to get away from or escape responsibility for this enforced segregation would have to do something more affirmative than it has now up to this point.

It does not protect us against the policy which it has set up.