GEORGE C. YOUNG, District Judge.
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was filed on November 5, 1964, pursuant to Title II of Public Law 88-352 (The Civil Rights Act of 1964). Plaintiffs John V. Twitty and Yvonne M. Twitty, Negroes, claimed the defendants, Vogue Theatre Corporation and its manager, William C. Carroll, on August 1, 1964, refused to admit the plaintiffs to the Vogue Theatre because of a policy of discriminating against Negroes. The complainant sought an injunction to restrain the defendants from continuing or maintaining a policy of discrimination against either the plaintiffs or members of the class for which the suit was brought. Attorney's fee and costs were also sought.
Motions to dismiss were filed on behalf of both defendants on December 4, 1964; on December 5, 1964, this Court noticed the motions for hearing on December 18, 1964.
On December 11, 1964, plaintiffs' counsel moved for postponement of the hearing set for December 18; that day the motion was granted and the hearing reset for January 6, 1965.
On December 28, 1964, plaintiffs' counsel filed a "Suggestion for Correction of Defendant's Name", so as to change the name of the corporate defendant in the cause from Vogue Theatre Corporation to Vogue Theatre, Inc. of Orlando.
After hearing on January 6, 1965, this Court entered an Order changing the name of the corporate defendant; counsel for defendants advised the Court that the defendants had no objection to the granting of the suggestion of the name change. The Motion to Dismiss was denied and the defendants given ten days to file their answers and five days to comply with Rule 15 of the Civil Rules of the District Court for the Middle District of Florida if they wished to raise a question of constitutionality of the provisions of the Civil Rights Act of 1964 under which this case was brought. The Court refused to hear constitutional arguments on the Motion to Dismiss since Rule 15 of the local rules had not been theretofore followed by the defendants.
On January 11, 1965, the defendants' counsel filed "Notice of Intent to Challenge the Constitutionality of an Act of Congress."
On January 13, 1965, this Court, pursuant to Section 2403, Title 28, U.S.
On January 15, 1965, an answer was filed by Vogue Theatre Inc. of Orlando and William C. Carroll; on January 20, 1965, this Court noticed the case for non-jury trial on February 16, 1965.
On February 15, 1965, an Order was entered granting the application of the United States of America for leave to intervene as a party; the trial was held on February 16 and 17, 1965.
The Vogue Theatre involved in this case is a neighborhood motion picture house located in an area of Orlando, Florida, outside the downtown section. It is independently owned; that is, it is not a part of any chain.
The Vogue Theatre is a "21 day theatre" which means in film distribution parlance that it is in line to get a film 21 days after the film's first run at a "first run theatre" in Orlando.
There are approximately 60 theatres in the Orlando area (within one hour's drive in any direction); 20 of those 60 are "first run theatres".
Defendants raise a number of issues as follows:
CHANGE OF CORPORATE NAME
Defense trial counsel contended only "Vogue Theatre Corporation" was ever served and that no service of process was ever made on the corporate defendant by its correct name, Vogue Theatre Inc. of Orlando. This argument is without merit because trial counsel's associate consented to the change of defendant's name on January 6, 1965, and this Court entered an Order accordingly.
Although in its answer filed January 15, 1965, Vogue Theatre Inc. of Orlando, in Paragraph 2 thereof, maintained that it had not been served with process and thus was not subject to the jurisdiction of this Court, I construe that the failure to object to the granting of the suggestion of name change as incorporated in the Order of this Court on January 6, 1965, constituted a waiver by defense counsel of this defense and that, therefore, Vogue Theatre Inc. of Orlando is properly before this Court.
WAS DISCRIMINATION SHOWN?
Defendants — who offered no evidence — next contend that plaintiffs' evidence failed to establish any discrimination by either of the defendants against the plaintiffs. Each of the plaintiffs testified in open court and the deposition of defendant, William C. Carroll, was read which deposition contained the following questions and answers by Carroll:
From the evidence adduced I find the plaintiffs were denied admission to the Vogue Theatre on August 1, 1964, because of their race and pursuant to a policy of that theatre not to admit Negroes. Such action was "discrimination" within the meaning of Section 201 (a) of Title II, Civil Rights Act of 1964. I further find that such denial was performed by Vogue Theatre Inc. of Orlando and William C. Carroll as the operator and manager, respectively, of the Vogue Theatre.
Defendants also argue that there is no basis for plaintiffs bringing their complaint as a class action. This contention is without merit, also, for there are common questions of law and fact affecting the several rights of all Negroes in the Orlando area. Obviously the number of persons constituting the class (Negroes in Orlando area) are so numerous as to make it impracticable to bring them all before the Court. Rule 23, F.R. Civ.P.; Potts v. Flax, 5 Cir., 313 F.2d 284 (1963).
The defendants next attack the constitutionality of Section 201(c) (3) of Title II of the Act.
As pertinent here, and in brief, Section 201(a) of the Act provides that all persons shall be entitled to full and equal enjoyment of places of public accommodation without discrimination on the ground of race, color, religion or national origin; Section 201(b) (3) defines any motion picture house as a place of public accommodation within the meaning of Title II "if its operations affect commerce". In Section 201(c) (3) Congress has provided that the operations of a motion picture house affect commerce if "it customarily presents films * * * which move in commerce."
In the case of McClung v. Katzenbach, 233 F.Supp. 815 (Ala.1964), that three judge district court stated in reference to Title II as applied to restaurants:
However, on December 14, 1964, the Supreme Court of the United States reversed the aforesaid McClung v. Katzenbach in the case of Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L. Ed.2d 290 and on the same day rendered its decision and opinions in the case of Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258. Whereas the McClung cases dealt with Sub-section 201(c) (2) of Title II (pertaining to restaurants), the Heart of Atlanta Motel case dealt with Sub-section 201(c) (1) of Title II of the Act (pertaining to a motel which provides lodging to transit guests). Although the Sub-section under scrutiny in the case at bar—201(c) (3)—is different than those specifically passed on in the McClung and Heart of Atlanta Motel cases, the Supreme Court decisions and the reasonings therefore are both binding on this Court and determinative of the issue of constitutionality.
In Heart of Atlanta Motel, Mr. Justice Clark, in speaking for the Court, found that the Act did not deprive the appellant there of liberty or property under the Fifth Amendment nor was it a taking of property without just compensation nor did it constitute "involuntary servitude" as prohibited by the Thirteenth Amendment, all as argued by defendants here.
Defendants next contend the conclusive presumption that all moving picture houses meeting the criteria set out in the Act "affect commerce" is an unconstitutional exercise by Congress of its power to legislate under the Commerce Clause. In this respect, Mr. Justice Clark in Heart of Atlanta Motel said:
In the same case, Mr. Justice Black in a concurring opinion stated:
To determine whether Congress had a "rational basis" for finding that racial discrimination by motels affected commerce the Supreme Court in Heart of Atlanta Motel reviewed the basis for the Congressional action and specifically referred to various hearings before Congressional Committees and the Court concluded its review with the following statement:
and in the McClung case, Mr. Justice Clark speaking for the Court, said:
In the case at bar this Court requested Government counsel to provide the Court with a copy of those portions of the transcript of the various hearings before Congress on the Act which related to motion picture theatres. The acting Assistant Attorney General of the Civil Rights Division, acting through the Chief of Appeals and Research Section, forwarded that information which is attached hereto as Appendix "A". A covering letter from the Chief of the Appeals and Research Section stated:
If, in fact, Appendix "A" does constitute all of the significant statements concerning theatres, such material falls far short of the "voluminous evidence" referred to by the Supreme Court in the Heart of Atlanta Motel case concerning motels.
However, while the Supreme Court referred to the voluminous Congressional hearings, it does not appear that any volume of testimony or evidence was necessarily required for a finding by that Court that the Congress acted "rationally". In his concurring opinion in Heart of Atlanta, Mr. Justice Black also said:
So in using the rationale of the Heart of Atlanta Motel and McClung cases as a yard stick with which to measure the merits of the defendants' contentions of unconstitutionality of Sub-section 201 (c) (3), it cannot now be said that Congress acted irrationally in the enactment of the criteria set forth therein and the contention of unconstitutionality of the sub-section fails.
FILMS IN COMMERCE?
The defendants next contend that even if the Act is constitutional as
Jacksonville Film Services, Inc., is a corporation located in Jacksonville, Florida, which receives films from all (except three) of the film producers in a different form than that in which subsequently shipped throughout Florida for showing. After receipt, Jacksonville Film Services Inc. processes the film and mounts it on shipping reels. Instructions for shipping to various theatres throughout Florida are received from the local agency representing the producing company, such as, Metro-Goldwyn-Mayer, Warner Brothers or Columbia Pictures. Films are shown by a theatre and then returned by that theatre either to Jacksonville or to the next theatre in Florida which has been scheduled for the next subsequent showing of that particular film. In some rare cases the film is sent by a Florida theatre to an area outside Florida where for some reason a film is urgently required.
The films produced outside Florida are unquestionably in interstate commerce from the time they are shipped from the production laboratory to Jacksonville Film Services, Inc. Defendants contend that upon reaching the latter location in Jacksonville the films come to rest and that the subsequent movements in Florida are solely intrastate commerce and not movements "in commerce" within the contemplation of Sub-section 201(c) (3).
The defendants are correct in their contention that the films are not "in commerce" in their movements only from Jacksonville to points in Florida and from such points to other Florida points or back to Jacksonville — but the Act does not restrict the time for determining the nature of the movement of the film — the test is whether the film moves in commerce as a part of its usual distribution throughout the country. Here all the films moved in commerce to and from Florida. In the Heart of Atlanta case the Supreme Court held that Congress under the Commerce Clause may regulate a local activity which Congress has found affects interstate commerce. There Mr. Justice Black said:
and in the McClung case, Mr. Justice Clark stated:
The Interstate shipments to and from Florida of the films customarily presented by the Vogue Theatre were movements "in commerce" as contemplated by Section 201(c) (3) of the Act, and, for the quoted reasons set forth above from the cited Supreme Court opinions, are sufficient to permit federal regulation of a "local activity" where Congress has not irrationally found that the operations of such activity "affect commerce". So defendants' argument on this point also fails and the plaintiffs are entitled under the law to the relief sought by their Complaint.
The plaintiffs seek an allowance of a reasonable attorney's fee as a part of the costs as permitted, in the discretion of the Court, by Section 204(b), Title II of the Act. A reasonable attorney's fee for the services rendered by plaintiffs' counsel would be the amount of $500.00. However, the allowance of all or any part thereof is a matter within the discretion of the Court.
The occasion giving rise to this suit occurred just one month after the Civil Rights Act of 1964 became law and at a time when some respectable authorities believed that at least some portions of the Civil Rights Act of 1964 were unconstitutional (for example, the three judge district court in case of McClung v. Katzenbach, D.C., 233 F.Supp. 815, cited on page 284 of these Findings of Fact and Conclusions of Law).
On August 1, 1964, the Supreme Court had not yet decided Katzenbach v. McClung and Heart of Atlanta Motel, Inc. v. United States, which controlled the basic issues in this case. Furthermore, until this suit, so far as this Court knows, there has been no reported decision involving Section 201(c) (3) of the Act.
There is no reason to assume that the defendants have acted for any reason other than because of a good faith belief that the Act was unconstitutional as applied to their operation. Consequently,
Therefore, of the reasonable attorney's fee of $500.00, only the sum of $100.00 should be taxed as costs.
In accordance with these Findings of Fact and Conclusions of Law, in the form of a Memorandum Opinion, an Order granting the Petition for Injunction will be entered including an allowance for costs incurred and a reasonable attorney's fee of $100.00.
APPENDIX A TABLE III. — Average family expenditure for admissions, food eaten away from home, and automobile operations, for 3 income classes, large northern and southern cities, by race, 1950 ------------------------------------------------------------------------------------------------------------------ | Admissions | Food eaten away from | Automobile operation | | home | |----------------------------|----------------------------|-------------------------- Income class and | | | Negroes | | | Negroes | | | Negroes region | Negro | White | percent | Negro | White | percent | Negro | White | percent | | | of | | | of | | | of | | | whites | | | whites | | | whites -----------------------------|--------|--------|----------|--------|--------|----------|--------|--------|--------- $2,000 to $3,000: | | | | | | | | | Large northern cities .... | $31 | $29 | 107 | $148 | $184 | 80 | $52 | $86 | 60 Large southern cities .... | $23 | $36 | 64 | $113 | $194 | 58 | $52 | $95 | 55 Northern expenditures | | | | | | | | | as percent of southern .. | 135 | 81 | ....... | 131 | 95 | ....... | 100 | 91 | ....... $3,000 to $4,000: | | | | | | | | | Large northern cities .... | $45 | $37 | 122 | $138 | $170 | 81 | $67 | $158 | 42 Large southern cities .... | $37 | $39 | 95 | $117 | $180 | 65 | $86 | $170 | 51 Northern expenditures | | | | | | | | | as percent of southern .. | 122 | 95 | ....... | 118 | 94 | ....... | 78 | 93 | ....... $4,000 to $5,000: | | | | | | | | | Large northern cities .... | $57 | $48 | 119 | $182 | $234 | 78 | $148 | $220 | 67 Large southern cities .... | $39 | $45 | 87 | $166 | $257 | 65 | $136 | $225 | 60 Northern expenditures | | | | | | | | | as percent of southern .. | 146 | 107 | ....... | 110 | 91 | ....... | 109 | 98 | ....... --------------------------------------------------------------------------------------------------------------------- Source: "Study of Consumer Expenditure Income and Saving," tabulated by Bureau of Labor Statistics, U.S. Department of Labor, for Wharton School of Finance and Commerce, University of Pennsylvania, Philadelphia, Pa., 1956-57. Copied from Hearings Before The Committee on Commerce, United States Senate Eighty-Eighth Congress, First Session on S. 1732, Part 2, Serial 27.
Materials from the Legislative History of the Civil Rights Act of 1964 Relating to Motion Picture Theaters
The Under Secretary of Commerce told the committee that discriminatory practices in places of entertainment or amusement not only artificially restrict the demand for entertainment, but also that—