Willis v. Pickrick Restaurant , 231 F. Supp. 396 ( 1964 )

HOOPER, District Judge

(specially concurring).

It must be kept in mind that the instant case while raising serious constitutional questions is now before this Court only for purposes of a temporary injunction. As the evidence shows without dispute that defendant, The Pickrick, a Corporation, through its president Lester G. Maddox, did, pursuant to a deliberate policy, refuse to serve several Negroes at the restaurant in question, and since defendants offered no testimony at this hearing this Court must decide (1) whether the restaurant in question comes within the purview of the Civil Rights Act of 1964, and if so, (2) whether Congress had the power under the Interstate Commerce Clause of the United States Constitution to require this particular restaurant to serve all proposed guests without discrimination as to race or col- or.

The courts will not lightly declare Acts of Congress unconstitutional, particularly on the hearing of a temporary injunction which is tried almost immediately after the filing of the complaint, and without adequate opportunity for a careful study. The Courts should construe the statute in question if possible, in a manner that will render it constitutional and not otherwise, and will not impute to Congress the intent to violate the Constitution unless that intent is manifest from the language of the Act.

(i) The so-called “Public Accommodations” section of the Act is contained in Sec. 201 of Title II, which expressly covers among other establishments, “any restaurant, * * * selling food for consumption on the premises.” It provides that “[t]he operations of an establishment affect commerce” within the meaning of Title II if “it serves or offers serve interstate travelers, or a substantial portion of the food which it serves * * * has moved in commerce.”

In the instant case it appears that defendants come within the above provisions for they did in fact “offer to serve interstate travelers.” The restaurant is located on U. S. Highway 41, a well-traveled street through the City of Atlanta, and defendants have erected on the highway a sign directing all travelers to the restaurant. These facts would show a particular invitation to travelers, more specific than the general invitation which all restaurants hold out to the public for customers. There is some evidence that a relatively small number of cars were found on defendants’ premises bearing out of the state license tags, and I agree with the majority opinion that this evidence is weak as going to support the contention that interstate travelers f re-quented the restaurant. The offer to serve them, however, is clear, and it would be unthinkable that no interstate travelers did patronize defendants’ restaurant as it had an attractive appear-anee and ample parking facilities on the interstate highway.

(2) The majority opinion rules in effeet that segregation in this particular restaurant affects commerce because of the fact that “a substantial portion of the food which it serves * * * has moved in commerce.” On that point I am not prepared to express an official opinion for reasons now to be stated,

As to the effect on commerce by reason of the unwillingness of restaurants along interstate highways to serve the Negro race much evidence was adduced before the Congressional Committees. Under Secretary of Commerce Franklin D. Roosevelt, Jr., testified that Negroes, traveling from Washington, D. C. to Florida (and between other points) “would have an extremely slender choice in attempting to find overnight accommodations in hotels and motels serving white travelers along the same routes.” He stated they needed a guidebook published for Negro travelers which describes places which will serve Negroes. Evidence was adduced to the effect that a Negro traveling from Washington, D. C. to Miami, a distance of 1125 miles, would be unable for an average of 141 miles to find reasonable sleeping accommodations. On a trip from Washington, D. C. to New Orleans, a distance of 1217 miles, this average would be 174 miles. Of course, this means that there were many intervals of much greater distance than the above averages and anyone can imagine the plight of a Negro with his family attempting to make such a journey without adequate facilities for food, rest rooms, and sleeping accommodations along the way. Therefore, little doubt should exist as to the power of Congress to legislate concerning such facilities along interstate highways (where interstate travel may be presumed to exist, or even on throughways over which interstate traffic may pass). If, however, the language of Title II is given a literal interpretation wherein there is brought within its provisions all restaurants as to which “a substantial portion of the food which it serves * * * has moved in commerce” this Court can almost take judicial cognizance of the fact that it will cover all restaurants in this state. The able Assistant Attorneys General of the United States have presented this case with clarity, ability and tact, and have filed with the Court an excellent brief of some fifty pages which greatly assists this Court. The brief cites inter alia the case of Mabee v. White Plains Publishing Company, 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607, applying the Fair Labor Standards Act to a newspaper whose circulation was about 9,000 copies, only 45, or about % of one per cent, were mailed out of state (see P. 14 of brief). Practically every restaurant buys and sells a considerable amount of food products which “have moved in commerce”, including coffee, sugar, condiments, tea, canned goods, citrus fruits (in most states), vegetables, and in many states all grain products including cereals, also cigars, cigarettes, candies, etc. There are many restaurants on roads and highways never traversed by interstate travelers, some of them located in the backwoods and on dirt roads, but still a substantial portion of their food has moved in interstate commerce.

In the immediate future all of the district judges in this country will be met with cases raising difficult questions of interpretation as to this Act. Our courts face a solemn duty to properly interpret, and enforce the statute so as to carry out its lawful purposes. At the same time the courts should bear in mind that they are deciding only one case at a time and not by way of obiter and generalization tend to confuse rather than to clarify the legal questions involved.

Counsel for defendants have just filed a brief with the Court, citing a number of cases and quoting the following language from National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893, to-wit:

“The scope of the power of Congress over interstate commerce may not be so extended as to embrace effects upon interstate commerce so indirect, and remote that to embrace them would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.”

In other cases the United States Supreme Court has pointed out that the question whether

“ * * * the conduct of an enterprise affects commerce among the States is a matter of practical judgment, not to be determined by abstract notions.” See Polish National Alliance v. National Labor Relations Board, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509.

Congress may,

“by appropriate legislation regulate intrastate activities where they have a substantial effect on interstate commerce.” United States v. Darby, 312 U.S. 100, at p. 119, 61 S.Ct. 451, at p. 459, 85 L.Ed. 609.

The brief filed by defense counsel contains this language: “This is the first time, insofar as counsel for defendants can ascertain, that any statute passed by Congress has used, as a basis to support its power to regulate commerce among the states, transactions in goods which have already moved in interstate commerce, never again to enter into it.”

Counsel for the Government insist, however, that while certain individual restaurants might not otherwise conduct a business affecting commerce, that the aggregate of their total business might do so. That is an approved principle of law, as pointed out in a case involving agriculture, ruling that a farmer with eleven acres of land planted in wheat for his own consumption does affect the flow of wheat in commerce when taken in the aggregate with all other small farmers in a state. No evidence has been adduced in this case, nor do I personally know whether or not the aggregate effect of many restaurants in Georgia (not located on interstate highways) refusing to serve Negroes will increase or decrease the aggregate amount of food products shipped into the state. As far as I know that question was not explored by the Congress and it was not explored in the trial of this case, and it remains an open question.

By way of summary of this hastily drawn concurrence let it be said concerning restaurants, it is my present opinion that all restaurants reasonably accessible to interstate travelers are prohibited from discriminating against Negroes in the service of food, but in order to extend such prohibition to all restaurants where a substantial portion of the food which it serves has moved in commerce there must be some showing that the discrimination does in fact affect commerce. Furthermore, that restaurants off of the main avenues of interstate travel which are offering only in a general way to serve the public cannot be said to be offering “to selve interstate travelers” within the meaning of the Act, but that The Piekrick restaurant located on an interstate highway did in fact offer to serve interstate travelers, and therefore a temporary injunction should be issued against the corporation and against Lester G. Maddox, its president, who actively engineered the discrimination.