C. E. LIGHT, Plаintiff and Appellee, v. Robert P. ELLIOTT, Individually and d/b/a Lewis & Clark Marina, Defendant and Appellant, and Department of Game, Fish & Parks, a Department of the State of South Dakota, Defendant.
No. 12559.
Supreme Court of South Dakota.
September 3, 1980
295 N.W.2d 724
Considered on Briefs May 16, 1979. On Reassignment Sept. 3, 1980.
James R. Feyder of Simons, Gibbs, Feyder & Myers, Sioux Falls, for defendant and appellant.
DUNN, Justice (on reassignment).
Appellant Elliott appeals from a judgment of the circuit court permitting appellee Light to rent boat-docking facilities for the 1978 season. We reverse.
Appellant operates and manages Lewis and Clark Marina as lessee from the State of South Dakota. Appellee sought to rent marina slip space for his boat, as he had done since 1967. Appellant refused to rent him slip space, claiming appelleе had not paid his previous year‘s bill in full, owing $5.68. Appellee contested this charge in writing, whereupon appellant made no effort to settle or close appellee‘s account, nor to resolve the dispute over the $5.68 charge. It is questionable whether appellant ever billed appellee for this amount after receiving written challenge of that charge.
Appellee sought and obtained a temporary injunction restraining appellant from renting this dock space to anyone other than appellee pending further court order. An interlocutory injunction was later obtained, which continued the effect of the tempоrary injunction throughout the pendency of the action on the merits.
The trial court found that the marina was a public concession controlled by the State of South Dakota, that appellant had followed precedent by giving preference to previous renters of dock space, and that appellee hаd rented space during the 1976 and 1977 seasons without incident. The court also found that in April of 1977, appellee, an attorney, began representing a former employee of appellant in legal proceedings against him.
The court concluded that because appellee tendered full payment for dock spаce during the 1978 season, and because the
Appellee has failed to exhaust his administrative remedies and thus should not be heard by this court.
It is imperativе for appellee to have presented his grievance to the State Commission on Human Rights before the trial court passed upon the merits. Failure to exhaust administrative remedies should have prompted the trial court to send the matter back for an administrative hearing.
The judgment of the trial court is reversed.
MORGAN and FOSHEIM, JJ., concur.
WOLLMAN, C. J., concurs specially.
HENDERSON, J., dissents.
WOLLMAN, Chief Justice (concurring specially).
I join in the reversal of the judgment of the circuit court, but for a different reason.
It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to аny person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and rеpair.
The intent of
HENDERSON, Justice (dissenting).
It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancеstry, or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or
unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.
Appellee C. E. Light is a “person” under
Appellee, a lawyer, is being discriminated against in a public accommodation for his apparent audacity to bring suit on behalf of his client against appellant. The concession results from a lease granted by the State of South Dakota to appellant. The Secretary of the Army granted a lease covering approximately 1,407.62 acres of land and water, commonly known as the Lewis and Clark area, to the State of South Dakota for public park and recreational purposes. The U.S. Government lease to South Dakota provides, paragraph thrеe:
The lessee [South Dakota] shall provide the facilities and services necessary to meet the public demand for the use of the area for public park and recreational purposes either directly or through concession agreements. All concession agreements shall expressly state that they are granted subjeсt to all the terms and conditions of this lease and that the concession agreement will not be effective until the terms and conditions thereof are approved by the District Engineer. (Emphasis supplied).
Thus, appellee cannot be refused access to the use and benefit of the services and facilities of such public аccommodations. He desires to use, and is entitled to use, a public park for a recreational purpose Appellant‘s actions constituted an adverse, unlawful, and unequal treatment prohibited by
I read
There appears to be no just or fair reason for the appellant to deny appellee the renting of a boat dock or slip. Appellant‘s refusal arises out of spite due to appellee‘s legal representation of a former employee. The Lewis and Clark Marina is a public marina and appellant does not have the right to unilaterally ignore appellee‘s right to rent a boat dock or slip. If appellant-appellee‘s relationship is characterized as a personal feud, appellant could not usе his concession for the operation of a public accommodation as a vehicle in which to vent his personal feelings against appellee. Appellant‘s action is vindictive, without good cause, and contrary to the lease of the United States and the State of South Dakota.
Appellee‘s federаl constitutional rights are being violated, particularly the rights afforded to him under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The dock and slip in question here are located on real estate and water owned by the United States. The appellant is a concessionaire of the State оf South Dakota, is an instrumentality of South Dakota, and hence is subject to the duties and requirements of the equal protection of the laws imposed upon South Dakota by the Fourteenth Amendment to the United States Constitution. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1959).
One of the purposes behind the equal protection clause of the Fourteenth Amendment is to secure to every person within the state‘s jurisdiction a protection against actual discrimination arising from the method
For ten years, appellee had rented a boat dock or slip in this public accommodation. The only area available for dockage where large boats could be launched was this area where аppellant refused appellee access. The state adopted a public rental policy to give preference to a class of persons who had purchased large boats, made sizeable investments, and rented year after year. Appellant singled out the appellee as a member of that class and discriminated against him because the appellee was a lawyer who undertook representation of a former employee of appellant. Under our system of government, citizens should be protected against discriminatory practices which deny them the same use and enjoyment of public arеas furnished to other citizens in the same class. The trial court correctly concluded that appellant‘s refusal to lease unto appellee was not justified and that the appellant had failed to establish any just or equitable reason for his actions.
In this case, discriminatory application of an existing public policy by appellant acting as an instrumentality of the State of South Dakota was tantamount to improper or discriminatory application of a state statute or regulation. The appellant‘s actions here are reprehensible, unconstitutional, and in total defiance to the State of South Dakota‘s order. Undеr the majority decision, this defiance shall prevail over law and good reason.
State v. Prudential Insurance Co., 273 N.W.2d 111 (S.D.1978), is distinguishable. There, we were adjudicating with reference to a life and health insurer engaged in the business of selling insurance privately. This court held that Prudential Insurance Company was not a covered public accommodation under this Act. Here, we are concerned with a public recreational area of 1,047.62 acres of land owned by the United States which, through its lessees, rents a public boat dock and slips.
If the letter, intent and spirit of
The majority concludes that appellee must present his grievance to the State Commission on Human Rights before the circuit court can decide the case on its merits. Pursuant to Article V, § 5 of the South Dakota Constitution, the circuit court granted an interlocutory injunсtion during
By this language the power of the circuit courts to issue remedial writs and hеar and determine the same in all cases according to the practice of our law as it existed at the date of the adoption of the Constitution was embedded in the Constitution, and such power, authority, and jurisdiction of the circuit courts is not subject to be impaired, diminished, or destroyed by the Legislature.
This principle was reiterated in Camp Crook Independеnt School District No. 1, Harding County v. Shevling, 65 S.D. 14, 24, 270 N.W. 518, 523 (1936), which stated:
The equity jurisdiction thus vested in the circuit courts by the Constitution cannot be abrogated, impaired, or circumscribed by subsequent legislative act.
There can be no doubt that the circuit judge, statutorily and constitutionally, had a right to grant an interlocutory injunction. The majority opinion concedes this premise. I do nоt believe that it is mandatory to file a complaint with the Human Rights Commission once this case commenced in equity and jurisdiction became vested in the circuit court. Further, at no time did appellant ever question the jurisdiction of the circuit court. The jurisdiction question never arose in the circuit court and was not urged or briefed by these parties at the appellate level. The failure to exhaust an administrative remedy was never before the lower court and was not addressed to this Court. Whereof, therefore, do we speak? Would we have the trial court grant a motion never made? Would we have the trial court don an advocate‘s role?
One impоrtant difference exists between the cases cited in the footnote of the majority decision and this case. The dismissal of the plaintiff‘s cause of action in both Gottschalk and Rowen on the ground of failure to exhaust administrative means of relief was in response to motions by the respective defendants at the trial court level. The majority raised the issue in this case and then ruled upon it. I believe this distinction is pertinent, if not crucial.
This case was founded in equitable jurisdiction in our state courts and appellee should not be denied access to a trial court because he “may” file a complaint with the Human Rights Commission. Jurisdiction is like pregnancy: either you have it or you don‘t. Thе circuit court in this case had jurisdiction and never lost it.