56 Del. 571 | Del. Super. Ct. | 1963
Lead Opinion
On June 12, 1963, defendant, a Negro, entered the premises of the Deer Park Hotel in Newark, Delaware, and requested service of food. The Deer Park Hotel is a privately owned establishment which provides food, drink, and lodging, but the restaurant is separate from the hotel facilities. The proprietor, relying upon 24 Del. C. Sec. 1501, requested the defendant to leave after denying him service solely because of his race, and, upon his refusal to leave, obtained a warrant for his arrest for violation of the criminal trespass statute of this State, 11 Del. C. § 871, which was executed by the Newark Police.
In order to secure a prompt disposition of the Constitutional questions presented, defendant agreed to the immediate filing of this matter in the Superior Court and joined with the Attorney General in petitioning that court to certify the following question to this court:
“May the Judiciary of this State constitutionally entertain a trespass prosecution against a person who is denied service and requested to leave (refusing to do so) a restaurant or other place of public accommodation, which denial of service and requested exclusion are based solely upon the ground that the defendant is colored without ascertainment of his offensiveness to the major part of the customers of the place of public accommodations and injury to business and which action the keeper of such public place of public accommodation is based solely upon the purported authority granted under 24 Del. C. Sec. 1501?”
The question so certified requires us to determine the correlative rights and duties of the owners of public accommodations who seek to deny service to patrons exclusively
• Included within these questions is a request that we determine the common law obligations of owners of places of public accommodation. At common law, the obligation of an innkeeper to serve the general public was materially different from the duties imposed upon owners of other places of public accommodation. The Attorney - General argues that an exposition of this dichotomy is unnecessary since it is clear that defendant was not seeking lodging in the hotel section of the premises in question. However, since the question has been accepted for certification and because of the relationship between the common law and 24 Del. C. § 1501, discussed infra, we deem it necessary to delineate the common law rule.
At common law, an innkeeper was the subject of extensive regulation and legal disabilities. As stated in Halsbury’s, Laws of England (3d Ed.), Sec. 938: ■
'“An innkeeper, that is to say at the present 'day, a hotel proprietor in his capacity as an innkeeper, is bound by the common law or custom of the realm to receive'and lodge in his inn all comers who are travellers and to entertain them at reasonable prices without any special or previous contract unless he has some reasonable' ground of refusal.” Accord: 29 Am.Jur., Innkeepers, Sec;■ 48.
It is clear, therefore, that at common law an innkeeper had a positive duty to receive all travellers who conducted themselves with propriety and had the-ability
Apart from the above-cited limited category of public establishments, it is clear that at common law the owner of a restaurant or other place of public refreshment,, amusement, or entertainment was free to select patrons, upon any basis deemed satisfactory to him. See Halsbury’s, Laws of England (3d Ed.), Sec. 941; 29 Am.Jur., Innkeepers, Sec. 9; Alpaugh v. Wolverton, cited supra; Slack v. Atlantic White Tower System, Inc., 181 F.Supp. 124 (U.S.D.C.D.Md., 1960). As was stated in State v. Avent,,
“In the absence of a statute forbidding discrimination based on race or color in restaurants, the rule is well established that an operator of a privately owned restaurant privately operated in a privately owned building has the right to select the clientele he will serve, and to make such selection based on color, race, or White people in company with Negroes or vice versa, if he so desires. He is not an innkeeper. This is the common law.”
Having considered the requirements of the common law, we are called upon to construe 24 Del. C: § 1501, which provides:
“No keeper of an inn, tavern, hotel, or restaurant, or other place of public entertainment or refreshment of travelers, guests, or customers shall be obliged, by law, to furnish entertainment or refreshment to persons whose reception or entertainment by him would be offensive to the major part of his customers, and would injure his business.”
“As used in this section, ‘customers’ includes all who have occasion for entertainment or refreshment.”
Defendant argues that the purpose of this statute was the promulgation of a legislative policy favoring the exclusion of Negroes from places of public accommodations. If the statute is so construed, it must be declared an unconstitutional exercise of legislative power by this court. See Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962).
■ It is a basic rule of statutory construction, previously applied by the courts of this State, that the legislature is presumed to have acted within its constitutional powers. See Delaware Steeplechase and Race Asso
In attempting to meet this burden, defendant does not cite any legislative history nor does he draw upon any words from the body of the statute. Reliance is placed upon the fact that the predecessor of the statute was passed in the Reconstruction Era following the Civil War and the opinion of two scholars who believe that the statute was designed to exclude Negroes from places of public accommodation.
We are of the opinion that such facts fall far short of the quantum of proof required to declare a statute invalid. This is especially true since the statute in question was re-enacted by the Legislature in 1953, and it is presumed that the Legislature considered any changes in constitutional law which had occurred subsequent to the passage of the original statute. See Mayor and Comvcil of Wilmington v. Saint Stanislaus Kostka Church, 10 Terry 5, 49 Del. 5, 108 A.2d 581 (1954).
We are now called upon to determine whether or not the statute in question modifies the common law duty of an innkeeper to serve all guests who are orderly and in a position to pay for the requested services. It is time that statutes in derogation of the common law must be strictly construed. See 50 Am.Jur., Statutes, Sec. 402. However, we are required to give weight to all words used in a legislative enactment. We note that the Legislature lias utilized both the words “inn” and “hotel.” Both of the cited words were used by the common law to describe
With respect to owners of other places of public accommodation, entertainment, refreshment, and amusement, we hold that it was the intent and purpose of 24 Del. C. § 1501 to codify partially their common law right to choose whom they will serve. We hold, therefore, again applying the rule that statutes in derogation of the common law are to be strictly construed, that the Legislature, by enacting 24 Del. C. § 1501, did not intend to abrogate the common law right of an owner of a place of public accommodation, other than an inn, to select those patrons whom he will serve.
We specifically hold that this statute does not indicate a public policy favoring discrimination. Defendant, however, urges that the discriminatory purpose need not be apparent upon the face of the statute, citing Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). In Gomillion, the court merely allowed the petitioners to present proof upon the question of improper purpose and noted that the respondent had presented no countervailing evidence of a proper legislative design. In
Having thus construed 24 Del. C. § 1501, we must now consider whether or not refusal of service and subsequent expulsion of a patron predicated upon either 24 Del. C. § 1501 or the common law is consistent with the requirements of constitutional law. Such a question, of necessity, involves consideration of the Fourteenth Amendment to the Federal Constitution. It is well settled by the terms of the Amendment itself that no state may constitutionally deny to any citizen the equal protection ■of the laws. It is equally well settled that a private act of discrimination is not prohibited by the Fourteenth Amendment. See Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) ; Turner v. City of .Memphis, cited supra; Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963).
It is equally well settled that a state may not escape the prohibitions of the Fourteenth Amendment, by ■delegating a governmental function to an allegedly private instrumentality. See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) ; and Turner v. City of Memphis, cited supra. Therefore, any owners or managers of . places of public lodging, entertainment, or refreshment who, because of public ownership, financial support, or control, are within the rationale . of the Burton decision may not constitutionally refuse service to patrons based upon racial classification.
However, an entirely different problem is presented by the owner or operator of the typical private restaurant, hotel, or other place of public entertainment
Accordingly, we are of the opinion that, with the exceptions noted above, the owner or manager of a privately owned place of public accommodation, entertainment, or refreshment may constitutionally refuse service to patrons because of discrimination predicated upon a racial classification.
Once the decision to refuse service has been made, 24 Del. C. § 1501 is no longer relevant. That statute, as we have previously held, merely modifies and codifies the common law right of a private owner of public accommodation to choose his patron. If the patron then leaves, no further problem is presented. If, however, he refuses to leave, as did the defendant, the owner then must rely upon 11 Del. C. § 871, the criminal trespass statute of this State; expel the patron by force; or fail to enforce his right to select his patrons.
The question presented is whether the State may, at the request of a private owner of public accommodation, arrest, prosecute, and convict one who refuses to leave after being denied service because of his race and after being requested to leave by the owner. In other words, the question presented is whether judicial action expressed in this manner contravenes the requirements of the Fourteenth Amendment to the Federal Constitution.
Both parties, in considering this issue, rely heavily upon the recent cases of Peterson v. Greenville, cited supra, and Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10
.We believe a proper disposition of this matter is controlled by Shelley v. Kraemer, cited supra, and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586. Rehearing denied 346 U.S. 841, 74 S.Ct. 19, 98 L.Ed. 361. Shelley, clearly established the principle that judicial action fostering racial discrimination contravenes the requirements of the Fourteenth Amendment. In Shelley, the court denied equitable relief to white property owners who wished to restrain a Negro purchaser from taking possession of property in violation of a common restrictive covenant. The court, in denying relief, stated:
(After citing previous cases.)
“These are not cases, as has been suggested, in, which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the .grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially
It' has been argued, however, that the Shelley rationale is inapplicable to the instant case, since the Shelley court was concerned with a voluntary acceptance by buyer and seller; whereas the instant case postulates an owner or proprietor who is unwilling to allow the Negro patron to remain on the premises. The validity of such a distinction, however, was substantially eroded by Barrows v. Jackson, cited supra. In Barrows, the court held that one white property owner could not recover damages from another white property owner for breach of a restrictive covenant. In denying relief, the court stated:
“To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry out her covenant, she is coerced to continue to use her property.. in a discriminatory manner, which in essence is the purpose of the covenant.” (At Page 254 of 346 U.S., at page 1033 of 73 S.Ct., 97 L.Ed. 1586.)
In the instant case, as in Barrows, judicial action by the State to prosecute and convict defendant for trespass would constitute an encouragement of the actions of the proprietor in excluding defendant upon racially discriminatory grounds. This the State cannot do. As we have previously held, the owner or proprietor of a place of public accommodation, with the exceptions noted, may not be compelled by the State to accept patrons who are
Finally, we note the recent decision of the Supreme Court in Turner v. City of Memphis, cited supra. In that case, the restaurant in question interposed a state trespass statute, similar to the one now before this court, as a justification for its action in refusing service to a Negro patron. The court indicated that the state trespass statute would be relevant only if it reflected an affirmative state policy favoring discrimination. The court further noted that if the statute was so construed, it would be unconstitutional in light of Burton v. Wilmington Parking Authority, cited supra. In the instant case, the trespass statute, as applied, results in judicial sanction of a policy of racial discrimination. Therefore, just as the State, in Turner, may not enact a statute which supports racial discrimination, the courts may not apply a statute which results in the fostering of racial discrimination. Therefore, the argument advanced in snch cases as State v. Avent, cited supra, and Griffin v. State, 225 Md. 422, 171 A.2d 717 (1961), cert, granted 370 U.S. 935, 82 S.Ct. 1577, 8 L.Ed. 2d 805 (1962), that a trespass prosecution is merely a neutral framework for a vindication of a private property right is untenable. The State, by intervening on the side of private discrimination, cannot be considered to be acting in a neutral or indifferent manner.
The Attorney General then argues that if the State is disabled from prosecuting defendant for trespass, the owner or proprietor will have, only his common law right of self-help and, accordingly, violence will ensue. We are not disposed to dispute the validity of this argument that, in some cases, the proprietor, after failing in efforts at
“Desirable as this is (avoidance of violence), and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.”
In summary, we therefore hold, first, with the exceptions noted, that the private actions of the owners or proprietors of a place of public accommodation in refusing service to a patron which are predicated upon racially discriminatory grounds do not contravene the requirements of the Fourteenth Amendment to the Federal Constitution. In so doing, we do not express any opinion upon the moral or ethical validity of such action. As stated in State v. Cannon, 5 Storey 587, 190 A.2d 514 (1963) :
“Therefore, our answer to the question before us may not be taken in any sense as an expression of individual opinion of any or all of the members of this Court upon the broad policy question.”
Secondly, we hold that such owner or proprietor may not call upon the State to assist him in enforcing his private policy of racial discrimination. If the State acts in such a manner, the judicial power would be placed behind and in favor of racial discrimination, and such action is forbidden by the Fourteenth Amendment.
The certified question is answered in the negative.
Concurrence Opinion
WOLCOTT, Justice (concurring).
The process of certification under Rule 20 is intended to provide a speedy final determination of a question of law upon which the decision in a pending case depends and nothing more. It is not designed, nor intended, as a substitute for an appeal from a final disposition of á case. Yet, the majority, in my opinion, has transformed this certification, into something in the nature of an appeal and has answered not only the question of law certified, but several additional questions of law not raised by the certification. This, I believe, to be an unfortunate expansion of the entire process of certification.
In my opinion, the actual question certified to us is susceptible of a short answer. Basically, the question, itself, and the undisputed facts related in the certification narrow themselves to this: May the proprietor of a restaurant, privately owned and operated, refuse service to a Negro solely because of his race and solely in reliance upon a State statute interpreted and believed by the proprietor to authorize such discrimination?
It is thus apparent that racial discrimination has taken place in reliance upon and under color of a . statute of the State of Delaware. It does not serve to construe the statute, as the majority does, as neither authorizing nor requiring discrimination. The State through its Legislature has acted and, in reliance upon that act, a private person has discriminated solely upon racial grounds. These facts, it seems to me, would lead the Supreme Court of the United. States to hold that Delaware has become involved in the act of discrimination “to a significant ex
The foregoing, in my opinion, answers fully the certified question. Accordingly, the further questions considered and decided by the majority are not necessary to the answer to the certified question, and should not have been. considered and decided. To do so is to change the entire theory of certification of questions of law, and to leave in doubt for the future what, if any, limitations are imposed upon it.
