McCain v. Davis

WEST, District Judge

(concurring).

I concur with the majority opinion in this case only to the extent that it holds the statute in question to be unconstitutional. I strongly disagree, however, with the reasons given or suggested in the majority opinion for so holding, and I emphatically disagree with the suggestions contained in the majority opinion as to the effect of this ruling.

The only issue presented in this case is whether or not a state, by legislative enactment, may force a hotel owner or operator to refuse accommodations to a Negro when the hotel is already in whole or in part in occupancy by white people. The issue thus presented is not whether or not a Negro has a right to be granted occupancy in a so-called white hotel, but only whether or not the owner and operator of a privately owned and operated hotel can be forced by legislative fiat to segregate his hotel.

Just as I believe that the federal government may not legally force the owner or operator of a private business to integrate, so do I believe that the state or local government may not compel the owner or operator of a private business to segregate. Such continued and extended interference by state and federal government into the operations of purely private business will surely spell doom to our long cherished system of free enterprise. In our zeal to protect the fundamental rights of minority groups, let us not forget that a hotel owner, just as the owner of any other private business enterprise, also has certain constitutionally guaranteed rights. One of these rights is the right to own and operate his business without undue interference by either the state or national government. Where, such as in the case of hotels, the business is not a state or federally franchised, monopolistic enterprise, the right of freedom to choose those with whom the owner or operator wishes to do business is just as fundamental as any of the so-called civil rights of which we lately hear so much.

The issues presented in this case call for no dissertation on the relative prices of hotel rooms, nor on the suitability of hotel accommodations available to members of the various races. It merely requires a determination of whether or not a state statute, which requires, under penalty of law, an owner or operator of a privately-owned hotel to refrain from renting rooms to members of the white and Negro race simultaneously is unconstitutional. It does not involve the right of the Negro to obtain accommodations at any particular hotel. It only involves his right not to be denied such accommodations solely on the ground that the state laws prohibit the hotel owner from making such accommodations available to him. It is only state-imposed separation of the races that is unconstitutional. As stated in the majority opinion, purely private action is insulated from the operation of the Fourteenth Amendment.

I have some doubt as to whether these plaintiffs are even proper parties in this suit. In my opinion, the only right involved is the right of the hotel owner to conduct his business without undue governmental interference, rather than the right of the Negro to be admitted to the hotels in question. However, inasmuch as the plaintiffs here claim that they were wrongfully denied accommodations solely on account of the statute in question, leaving at least an inference that had there been no such state statute, the hotel operators would have granted them the accommodations requested, I do, with some hesitation, agree that the question as to the constitutionality of the statute involved is properly before the Court. I further unhesitatingly agree that the statute involved does include hotels within its provisions.

I do not agree that this decision necessarily “dooms a long-standing state-wide custom”, nor do I agree that this decision necessarily “opens doors closed to Negroes in Louisiana since Reconstruction”. Whether or not such results flow from this decision will depend entirely upon the will of the owners and operators of private hotels and other private business enterprises. By this decision the owners or operators of hotels or other establishments covered by the statute are merely no longer required by state law to segregate. They may “open the doors” or close them, as they see fit and as they deem expedient in the day to day operation of their business.

There is nothing in the issues presented to this Court, in this case, which require a holding or even an intimation such as is contained in the majority opinion that hotels are of such a public nature as to bring them within the ambit of the Fourteenth Amendment. The hotels involved in this litigation are privately owned and operated and are thus, in my opinion, clearly not within the ambit of the Fourteenth Amendment.

The majority opinion states that “[pjurely private action is insulated from the Fourteenth Amendment”. With this I thoroughly agree. But it then goes on to say that when private persons discriminate because of state law, “even such private persons come within the ambit of the Fourteenth Amendment”. With this I emphatically disagree. In such an event, it is the state law which requires the discrimination complained of that is brought within the ambit of the Fourteenth Amendment and not the private person involved. It is the discriminatory law itself which must then be held unconstitutional, and not the acts of the private person. After the discriminatory law complained of is held unconstitutional, and therefore no longer effective, the same private persons may continue, with complete immunity, to voluntarily discriminate to their hearts’ content in the conduct of their private affairs.

The many cases cited in the majority opinion are apropros only insofar as they stand for the proposition that state imposed separation of the races is unconstitutional. None of these cited cases in any way support the conclusion that a Negro’s rights have been violated when the owner or operator of a private hotel refuses him accommodations if the refusal is the voluntary, private act of the hotel operator. It is only when such refusal is made under compulsion of state law that the person refused may complain of illegal discrimination. For instance, when the law forbidding a person living in a white subdivision to sell his property to a Negro was held unconstitutional, there was certainly no ruling contained therein requiring the property owner to sell to a Negro. When the law forbidding boxing matches between white boxers and colored boxers was held unconstitutional, there was no ruling contained therein requiring a white boxer to fight a colored boxer. By the same token, to hold that this statute forbidding the operator of a so-called white hotel to rent a room to a Negro is unconstitutional should in no way be construed to mean that such a hotel operator is required to rent a room to a Negro.

From the many gratuitous comments contained in the majority opinion, which, in my opinion are unnecessary to a decision of the issues presented, I fear the conclusion may be drawn that this decision stands for the proposition that it is a violation of a person’s constitutional rights to be denied accommodations in a hotel purely on the basis of race or color, even though such denial is made under no compulsion of law but as a purely private act. If such a conclusion is intended, I must respectfully record my non-concurrence. I agree that the statute is unconstitutional for the reasons which I have heretofore stated. As far as I am concerned, this decision merely gives greater latitude to a hotel operator and other persons covered under the statute in question in the management of their business. It does not substitute a mandate requiring him to integrate his hotel for a prior mandate requiring him to segregate it. It eliminates both mandates. It permits him to operate his own private business without unwarranted governmental interference.

The right of a person to operate his privately owned business as he sees fit is just as sacred a right as any other civil right. I am not willing to assist in driving the final nail in the coffin of free enterprise. To hold the statute here involved unconstitutional on any other grounds than those suggested in this concurring opinion will do just that.