Garner v. Louisiana/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

If these cases had arisen in the Pacific Northwest-the area I know best-I could agree with the opinion of the Court. For while many communities north and south, east and west, at times have racial problems, those areas which have never known segregation would not be inflamed or aroused by the presence of a member of a minority race in a restaurant. But in Louisiana racial problems have agitated the people since the days of slavery. The landmark case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1144, 41 L.Ed. 256-the decision that announced in 1896 the now-repudiated doctrine of 'separate but equal' facilities for whites and blacks-came from Louisiana which had enacted in 1890 a statute requiring segregation of the races on railroad trains. In the environment of a segregated community I can understand how the mere presence of a Negro at a white lunch counter might inflame some people as much as fisticuffs would in other places. For the reasons stated by Mr. Justice HARLAN in these cases, I read the Louisiana opinions as meaning that this law includes 'peaceful conduct of a kind that foreseeably may lead to public disturbance'-a kind of 'generally known condition' that may be 'judicially noticed' even in a criminal case.

This does not mean that the police were justified in making these arrests. For the police are supposed to be on the side of the Constitution, not on the side of discrimination. Yet if all constitutional questions are to be put aside and the problem treated merely in terms of disturbing the peace, I would have difficulty in reversing these judgments. I think, however, the constitutional questions must be reached and that they make reversal necessary.

Restaurants, whether in a drugstore, department store, or bus terminal, are a part of the public life of most of our communities. Though they are private enterprises, they are public facilities in which the States may not enforce a policy of racial segregation.

It is, of course, state action that is prohibited by the Fourteenth Amendment, not the actions of individuals. So far as the Fourteenth Amendment is concerned, individuals can be as prejudiced and intolerant as they like. They may as a consequence subject themselves to suits for assault, battery, or trespass. But those actions have no footing in the Federal Constitution. The line of for-bidden conduct marked by the Equal Protection Clause of the Fourteenth Amendment is crossed only when a State makes prejudice or intolerance its policy and enforces it, as held in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Mr. Justice Bradley, speaking for the Court, said: ' * *  * civil rights, such as are guaranteed by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings.' Id., at 17, 3 S.Ct. at 25. (Italics added.)

State policy violative of the Fourteenth Amendment may be expressed in Legislative enactments that permit or require segregation of the races in public places or public facilities (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873) or in residential areas. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149.

It may be expressed through executive action, as where the police or other law enforcement officials act pursuant to, or under color of, state law. See, e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

It may be expressed through the administrative action of state agencies in leasing public facilities. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45.

It may result from judicial action, as where members of a race are systematically excluded from juries (Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866), or where restrictive covenants based on race are enforced by the judiciary (Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586), or where a state court fines or imprisons a person for asserting his federal right to use the facilities of an interstate bus terminal, Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206.

As noted, Mr. Justice Bradley suggested in the Civil Rights Cases, supra, that state policy may be as effectively expressed in customs as informal legislative, executive, or judicial action.

It was indeed held in Baldwin v. Morgan, 5 Cir., 287 F.2d 750, 756, that the 'custom, practice and usage' of a city and its police in arresting four Negroes for using 'white' waiting rooms was state action in violation of the Fourteenth Amendment, even though no ordinance was promulgated and no order issued. In the instant cases such an inference can be drawn from the totality of circumstances permeating the environment where the arrests were made-not an isolated arrest but three arrests; not arrests on account of fisticuffs but arrests because the defendants were Negroes seeking restaurant service at counters and tables reserved for 'whites.'

There is a deep-seated pattern of segregation of the races in Louisiana, going back at least to Plessy v. Ferguson, supra. It was restated in 1960-the year in which petitioners were arrested and charged for sitting in white restaurants-by Act No. 630, which in its preamble states:

'WHEREAS, Louisiana has always maintained a policy of     segregation of the races, and 'WHEREAS, it is the intention of the citizens of this   sovereign state that such a policy be continued.'   La.Acts 1960, p. 1200.

Louisiana requires that all circuses, shows, and tent exhibitions to which the public is invited have one entrance for whites and one for Negroes. LSA-R.S. c. 4, § 5. No dancing, social functions, entertainment, athletic training, games, sports, contests 'and other such activities involving personal and social contacts' may be open to both races. LSA-R.S. c. 4, § 451. Any public entertainment or athletic contest must provide separate seating arrangements and separate sanitary drinking water and 'any other facilities' for the two races. LSA-R.S. c. 4, § 452. Marriage between members of the two races is banned. LSA-R.S. c. 14, § 79. Segregation by race is required in prisons. LSA-R.S. c. 15, § 752. The blind must be segregated. LSA-R.S.. c. 17, § 10. Teachers in public schools are barred from advocating desegregation of the races in the public school system. LSA-R.S. c. 17, §§ 443, 462. So are other state employees. LSA-R.S. c. 17, § 523. Segregation on trains is required. LSA-R.S. c. 45, §§ 528 532. Common carriers of passengers must provide separate waiting rooms and reception room facilities for the two races (LSA-R.S. c. 45, § 1301) and separate toilets and separate facilities for drinking water as well. LSA-R.S. c. 45, § 1303. Employers must provide separate sanitary facilities for the two races. LSA-R.S. 23:971. Employers must also provide separate eating places in separate rooms and separate eating and drinking utensils for members of the two races. LSA-R.S. c. 23, § 972. Persons of one race may not establish their residence in a community of another race without approval of the majority of the other race. LSA-R.S. c. 33, § 5066. Court dockets must reveal the race of the parties in divorce actions. LSA-R.S. c. 13, § 917. And all public parks, recreation centers, playgrounds, community centers and 'other such facilities at which swimming, dancing, golfing, skating or other recreational activities are conducted' must be segregated. LSA-R.S. c. 33, § 4558.1.

Though there may have been no state law or municipal ordinance that in terms required segregation of the races in restaurants, it is plain that the proprietors in the instant cases were segregating blacks from whites pursuant to Louisiana's custom. Segregation is basic to the structure of Louisiana as a community; the custom that maintains it is at least as powerful as any law. If these proprietors also choose segregation, their preference does not make the action 'private,' rather than 'state,' action. If it did, a minuscule of private prejudice would convert state into private action. Moreover, where the segregation policy is the policy of a State, it matters not that the agency to enforce it is a private enterprise. Baldwin v. Morgan, supra; Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531.

It is my view that a State may not constitutionally enforce a policy of segregation in restaurant facilities. Some of the argument assumed that restaurants are 'private' property in the sense that one's home is 'private' property. They are, of course, 'private' property for many purposes of the Constitution. Yet so are street railways, power plants, warehouses, and other types of enterprises which have long been held to be affected with a public interest. Where constitutional rights are involved, the proprietary interests of individuals must give way. Towns, though wholly owned by private interests, perform municipal functions and are held to the same constitutional requirements as ordinary municipalities. Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265. State regulation of private enterprise falls when it discriminates against interstate commerce. Port Richmond Ferry v. Board of Chosen Freeholders of Hudson County, 234 U.S. 317, 34 S.Ct. 821, 58 L.Ed. 1330. State regulation of private enterprise that results in impairment of other constitutional rights should stand on no firmer footing, at least in the area where facilities of a public nature are involved.

Long before Chief Justice Waite wrote the opinion in Munn v. State of Illinois, 94 U.S. 113, 24 L.Ed. 77, holding that the prices charged by grain warehouses could be regulated by the State, a long list of businesses had been held to be 'affected with a public interest.' Among these were ferries, common carriers, hackmen, bakers, millers, wharfingers, and innkeepers. Id., at 125. The test used in Munn v. State of Illinois was stated as follows: 'Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large.' Id., at 126. In reply to the charge that price regulation deprived the warehousemen of property, Chief Justice Waite stated, 'There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner.' Id., at 133.

There was a long span between Munn v. Illinois and Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, which upheld the power of a State to fix the price of milk. A business may have a 'public interest' even though it is not a 'public utility' in the accepted sense, even though it enjoys no franchise from the State, and even though it enjoys no monopoly. Id., at 534, 54 S.Ct. at 514. The examples cover a wide range from price control to prohibition of certain types of business. Id., at 525-529, 54 S.Ct. at 510-512. Various systems or devices designed by States or municipalities to protect the wholesomeness of food in the interests of health are deep-seated as any exercise of the police power. Adams v. City of Milwaukee, 228 U.S. 572, 33 S.Ct. 610, 57 L.Ed. 971.

Years ago Lord Chief Justice Hale stated in De Portibus Maris, 1 Harg. Law Tracts 78, ' * *  * if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected with a public interest.' Those who run a retail establishment under permit from a municipality operate, in my view, a public facility in which there can be no more discrimination based on race than is constitutionally permissible in the more customary types of public facility.

Under Louisiana law, restaurants are a form of private property affected with a public interest. Local boards of health are given broad powers. LSA-R.S. c. 40, § 35; LSA-R.S. c. 33, § 621. The City of Baton Rouge in its City Code requires all restaurants to have a permit. Tit. 6, c. 7, § 601. The Director of Public Health is given broad powers of inspection and permits issued can be suspended. Id. § 603. Permits are not transferable. Id. § 606. One who operates without a permit commits a separate offense each day a violation occurs. Id. § 604. Moreover, detailed provisions are made concerning the equipment that restaurants must have, the protection of ready-to-eat foods and drink, and the storage of food. Id. § 609.

Restaurants, though a species of private property, are in the public domain. Or to paraphrase the opinion in Nebbia v. New York, supra, restaurants in Louisiana have a 'public consequence' and 'affect the community at large.' 291 U.S. 502, 533, 54 S.Ct. 505, 514, 78 L.Ed. 940.

While the concept of a business 'affected with a public interest' normally is used as a measure of a State's police power over it, it also has other consequences. A State may not require segregation of the races in conventional public utilities any more than it can segregate them in ordinary public facilities. As stated by the court in Boman v. Birmingham Transit Co., 5 Cir., 280 F.2d 531, 535, a public utility 'is doing something the state deems useful for the public necessity or convenience.' It was this idea that the first Mr. Justice Harlan, dissenting in Plessy v. Ferguson, supra, advanced. Though a common carrier is private enterprise, 'its work,' he maintained, is public. Id., at 554, 16 S.Ct. at 1144. And there can be no difference, in my view, between one kind of business that is regulated in the public interest and another kind so far as the problem of racial segregation is concerned. I do not believe that a State that licenses a business can license it to serve only whites or only blacks or only yellows or only browns. Race is an impermissible classification when it comes to parks or other municipal facilities by reason of the Equal Protection Clause of the Fourteenth Amendment. By the same token, I do not see how a State can constitutionally exercise its licensing power over business either in terms or in effect to segregate the races in the licensed premises. The authority to license a business for public use is derived from the public. Negroes are as much a part of that public as are whites. A municipality granting a license to operate a business for the public represents Negroes as well as all other races who live there. A license to establish a restaurant is a license to establish a public facility and necessarily imports, in law, equality of use for all members of the public. I see no way whereby licenses issued by a State to serve the public can be distinguished from leases of public facilities (Burton v. Wilmington Parking Authority, supra) for that end.

One can close the doors of his home to anyone he desires. But one who operates an enterprise under a license from the government enjoys a privilege that derives from the people. Whether retail stores, not licensed by the municipality, stand on a different footing is not presented here. But the necessity of a license shows that the public has rights in respect to those premises. The business is not a matter of mere private concern. Those who license enterprises for public use should not have under our Constitution the power to license it for the use of only one race. For there is the overriding constitutional requirement that all state power be exercised so as not to deny equal protection to any group. As the first Mr. Justice Harlan stated in dissent in Plessy v. Ferguson, supra, at 559, 16 S.Ct. at 1146, ' * *  * in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind * *  * .'