SIMONS, District Judge.
This suit was commenced December 18, 1964 by plaintiffs, who are Negro citizens and residents of South Carolina and of the United States, on behalf of themselves and others similarly situated, pursuant to Rule 23(a) (3) of the Federal Rules of Civil Procedure. Jurisdiction of this court is expressly conferred by Title II, Section 207 of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a-6.
The gravamen of plaintiffs' complaint is that corporate defendant operates several restaurants in Columbia and elsewhere in South Carolina which are places
Defendants admit jurisdiction of the court under Section 2000a-6, supra, generally deny the material allegations of plaintiffs' complaint, and specifically deny the allegations of the complaint which allege that their establishments are places of public accommodation as defined in the Civil Rights Act of 1964. Although defendants concede that they cater to white trade only and refuse to serve members of the Negro race at their restaurants for on-the-premises consumption of food, they stoutly maintain that they do not come within the coverage of Section 2000a(b) (2) and (c) (2) of the Act, infra note 2, because (1) they do not serve the public as required by the Act; (2) they are not principally engaged in selling food for consumption on the premises; (3) they do not serve or offer to serve interstate travelers; and (4) they do not serve food, a substantial portion of which has moved in commerce.
Defendants further contend that all foodstuffs served by them which are processed in this state, including cattle and hogs slaughtered in South Carolina, although shipped in commerce from another State to this State, cannot be considered as moving in interstate commerce under the Act; that the Act denies defendants "due process of law and/or equal protection of the law" as guaranteed by the Fourteenth Amendment; that the phrase "substantial portion of the food which it serves * * * has moved in commerce" is so vague and indefinite as to be impossible to determine whether a business operation comes within the Act; and further, that the Act violates defendants' "property right and right of liberty protected by the Fifth Amendment."
Defendant Bessinger further contends that the Act violates his freedom of religion under the First Amendment "since his religious beliefs compel him to oppose any integration of the races whatever."
The constitutionality of the public accommodations section, Title II of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a, has been fully considered and determined by the United States Supreme Court in Heart of Atlanta Motel, Inc. v. United States, et al., 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); see also Willis v. Pickrick Restaurant, D.C., 231 F.Supp. 396 (1964), appeal dismissed, Maddox v. Willis, 382 U.S. 18, 86 S.Ct. 72, 15 L.Ed.2d 13 (1965).
The constitutional questions posed by defendants herein were before the Supreme Court in McClung and Atlanta Motel, supra, and were decided adversely to defendant's contentions. Consequently, defendant's defenses founded upon the due process and equal protection clauses of the Fourteenth Amendment, the Fifth Amendment, and the Commerce Clause of the Constitution are found by the court to be without merit in view of the McClung and Atlanta Motel cases, supra. It is noted that in McClung, Atlanta Motel and Pickrick Restaurant the motel and restaurants involved were admittedly places of public accommodation under the Act, there being no factual issue as to whether they came within the purview of same. Neither was any question raised that the restaurants involved therein were not principally engaged in selling food for consumption on the premises. The sole consideration before the lower courts and the Supreme Court in those
Neither is the court impressed by defendant Bessinger's contention that the judicial enforcement of the public accommodations provisions of the Civil Rights Act of 1964 upon which this suit is predicated violates the free exercise of his religious beliefs in contravention of the First Amendment to the Constitution. It is unquestioned that the First Amendment prohibits compulsion by law of any creed or the practice of any form of religion, but it also safeguards the free exercise of one's chosen religion. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). The free exercise of one's beliefs, however, as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to society. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (Mails to defraud); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (polygamy conviction); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1943) (minor in company of ward distributing religious literature in violation of statute). Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.
The sole question for determination under the circumstances of instant case is whether any or all of defendants' eating establishments are places of public accommodation within the meaning and purview of Section 201 of Title II of the Civil Rights Act of 1964 (Section 2000a).
Should the court's answer to question #1 be in the affirmative, and either questions # 2 or # 3 in the alternative in the affirmative, then such of defendants' establishments are places of public accommodation within the purview of the Act, and plaintiffs are entitled to the requested relief as to these establishments.
The cause was heard by the court on April 4th and 5th, 1966. Subsequently excellent briefs and arguments have been filed by counsel for the parties. After a careful consideration of the evidence and the law and pursuant to Rule 52(a) of Federal Rules of Civil Procedure the court makes its findings of fact and conclusions of law.
FINDINGS OF FACT
1. Defendant Piggie Park Enterprises, Inc., hereinafter designated as Piggie Park, is a South Carolina corporation with its principal office in Columbia, South Carolina. Defendant L. Maurice Bessinger, hereinafter designated as Bessinger, is the principal stockholder and general manager of the corporate defendant.
2. Piggie Park owns, operates, or franchises six eating establishments specializing in Southern style barbecue which are located as follows:
3. Piggie Park No. 7, or "Little Joe's Sandwich Shop", in downtown Columbia is the one exception to the drive-in type operation. Defendant operates this establishment as a cafeteria type sandwich shop offering three-minute service, also specializing in barbecue, with table and chair seating capacity for sixty customers and where the food is primarily consumed on the premises. It is located in the prime shopping area of Columbia's Main Street; ninety percent of its business is between 11:00 a.m. and 2:30 p.m., with the majority of its customers being office workers, clerks and downtown shoppers. Its business hours correspond generally with those of the surrounding retail stores.
4. Two of the Negro plaintiffs were denied service by Piggie Park No. 2 on the Sumter Highway in Columbia on August 12, 1964 when they drove upon the premises in their automobile. At first a waitress who came out seeing that they were colored went back into the building without taking their order or saying anything to them. Shortly a man with an order pad came to their car, he also refused to take their order, and gave no reason or excuse for this denial of service, although other white customers were being served there at that time. The fact that Piggie Park at all six of its eating places denies full and equal service to Negroes because of their race is uncontested and completely established by the evidence. The limited Negro customers who are served must place and pick up their orders at the kitchen windows and are not permitted to consume their purchases on the premises. Thus, Negroes because of race are being denied full service and are victims of discrimination at all of Piggie Park's eating establishments.
5. No effort is made by defendant to determine whether a Negro customer who purchases food on a take-out basis is an interstate traveler.
6. Piggie Park displays on each of its establishments one modest sign located generally in the front window advising that it does not serve interstate travelers. In its newspaper advertisements is included a notice in small print at the bottom of the ad advising that "we do not serve interstate travelers".
7. Several employees of wholesale food companies which regularly sell foodstuffs and other merchandise to Piggie Park testified that the bulk of the food and related products sold by their firms to defendant was and is obtained by them from producers and suppliers beyond the State of South Carolina as follows:
8. Mrs. Merle Brigman, defendant's bookkeeper and chief buyer of its merchandise, testified that she had made a compilation from defendant's records which she keeps to determine what percentage of food served by defendant was either produced, grown or processed in South Carolina. In arriving at her percentages she did not include as out-of-state foods such items as live hogs and cows purchased out-of-state by their suppliers when slaughtering or any processing were done in the state prior to delivery to defendant. Neither did she include pepsi-cola syrup concentrate purchased from the Pepsi-Cola Bottling Company as an out-of-state product since it was mixed and processed within the state. Not included in her percentages were any of the ancillary or related items purchased by defendant's suppliers from out-of-state such as salt, sugar, paper products, spices, etc. She concluded that twenty-five percent of the "food" purchased by defendant during fiscal years 1963-64 and 1964-65 was "processed and/or manufactured" outside of South Carolina, and seventy-five percent was produced and/or manufactured into "food" within South Carolina.
Considering defendant's admission that from eighteen percent to twenty-five percent of its "food" in a finished and ready-for-use form for the years 1963 through 1965 moved in commerce into the state from another state; also the large quantities of live cattle, hogs and chickens purchased by defendant's suppliers from outside of the State and slaughtered and processed within the State before delivery to defendant, which were not included by defendant in its out-of-state percentages, along with other foodstuffs purchased by it which were shipped into the State and processed herein, together with such related items as sugar, salt, pepper, spices and sauces which admittedly moved in commerce, it is obvious that considerably more than twenty-five percent of the total food products served by defendant came from outside of the State. The court is persuaded and therefore finds that at least forty percent of the food served by defendant during the years in question "moved in commerce".
CONCLUSIONS OF LAW
By Section 2000a(c) Congress has determined that an establishment described in paragraph (2) of Subsection (b) of Section 2000a affects commerce within the meaning of the public accommodations subchapter of the Act if "it serves or offers to serve interstate travelers or a substantial portion of the food which it serves * * *, has moved in commerce". As was stated by the Three-Judge Court in Willis v. Pickrick Restaurant, 231 F.Supp. 396 at page 399 (N.D. Ga. 1964):
Moreover, the Supreme Court in McClung, supra, in upholding the constitutionality of the public accommodations section of the Act indicated that Congress has made sufficient findings of discrimination to be conclusive and acted within its constitutional right granted by the Commerce Clause of the United States Constitution. Thus it is not necessary in this or any other individual case to determine that defendant's acts in actuality affect commerce in and of itself; but it is necessary to determine whether defendant in the operation of its eating establishments serves a substantial portion of food which has moved in interstate commerce, or whether it serves or offers to serve interstate travelers. If it is determined that defendant's establishments meet either of these tests in the alternative, then under the Act they affect commerce.
Has a substantial portion of the food which defendant serves in its six eating establishments moved in interstate commerce? In line with the factual determinations hereinabove arrived at the answer is yes. Although the Act does not specifically define "substantial" the court construes it in the light of its usual and customary meaning: That is, something of real worth and importance; of considerable value; valuable; something worthwhile as distinguished
Under defendant's own admission that twenty-five percent of the foods it served in the years 1963-64 and 1964-65 and eighteen percent for the first six months of fiscal year 1965-66 moved in commerce, the court has no hesitancy in concluding as a matter of fact and law that a "substantial" portion of the food which it serves has moved in interstate commerce.
Neither can the court agree with defendant's contention that all foodstuffs, including hogs, beef and chickens, together with other related items, which are slaughtered or processed within the State after having been shipped in from another state, should be considered as instate goods which have not moved in commerce on the basis that they came to rest in this state and thereby became intrastate in character. Such contention was overruled by McClung, supra, 379 U.S. at page 302, 85 S.Ct. at page 383 where the Court stated:
From the foregoing this court has a mandate from the Supreme Court to conclude that all products sold to defendant as food by its producers which have moved in interstate commerce into this state in some form, even though they may have been slaughtered or otherwise processed after arrival here, are to be considered as food which has moved in commerce, as that phrase is used in Section 2000a(c) (2) of the Act. Therefore, by including all foodstuffs served by the defendant during the periods under consideration which have moved in interstate commerce the court has concluded that at least forty percent of the same has moved in commerce and unquestionably constitutes a "substantial" portion of the total food which it serves in all of its six locations.
Does the defendant serve or offer to serve interstate travelers? As hereinabove pointed out, the direct evidence produced by plaintiffs that defendant serves or offers to serve interstate travelers is slight, unimpressive and inconclusive; however, from all the circumstances before the court there is no doubt but that defendant has served and is serving interstate travelers. This is apparent from the testimony of a witness who testified that upon presenting herself for service at "Little Joe's Sandwich Shop" no inquiry whatever was made as to her place of residence. Probably of more import is the fact that all five of defendant's drive-ins are located upon much traveled interstate and federal highways with large signs at and about each location advertising its products. Defendant also advertises for business in daily newspapers and over the radio. Moreover, it employs no reasonably effective means of determining whether its customers are inter- or intra-state travelers. The court, therefore, concludes that defendant serves or offers to serve interstate travelers at all of its locations.
Having concluded that all of defendant's establishments "affect commerce" within the provisions of Section 2000a(c) (2) of the Act, the third and last question for determination arises from the construction to be given to subsection (b) (2) of said section of the Act which provides that "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises" [emphasis added] is a place of public accommodation within the meaning of the Act.
Do defendants' drive-ins and sandwich shop come within the ambit of the Act as intended by Congress? The court has no difficulty in deciding that "Little Joe's Sandwich Shop" is within
By limiting the scope of places of public accommodation to restaurants, cafeterias, lunchrooms, soda fountains, and other facilities principally engaged in serving food for consumption on the premises, it is only reasonable to assume that Congress did not intend to include within coverage of the Act such eating places as defendant's drive-ins, which do not in the main provide its patrons with facilities to be seated so that their orders may be and generally are eaten on the premises. None of the reported cases dealing with eating houses has considered this aspect of the Act. Both McClung and Pickrick Restaurant, supra, involved conventional type restaurants which served their customers while seated at tables and who consumed the food entirely on the premises. Surely if Congress had intended to include within the public accommodations provisions of the Act all public eating establishments which it determined "affect commerce" if they meet either of the alternate tests of Section 2000a(c) (2), then its including in Subsection (b) (2) of said Section the phrase "or other facility principally engaged in selling food for consumption on the premises" would be totally futile and meaningless. Our review of the Act's legislative history, committee reports, and congressional debates has failed to indicate a contrary motivation. The court must assume from its verbiage that Congress intended to limit the coverage of the Act to those eating places primarily engaged in serving food for on-the-premises consumption.
Indeed this court has no motive, intent or purpose to extend by judicial fiat any of the provisions of the Civil Rights Act of 1964 beyond the scope clearly enunciated and adopted by Congress.
Although it has been stated that the term restaurant has no definite legal meaning unless defined by statute, Congress was well aware that an eating place or a restaurant in the generally accepted sense is defined as follows: "A public place where food is sold casual guests to be eaten upon the premises; a house where cooked provisions are sold, to be eaten on the premises; a house where food is sold to customers; a place of resort
Even if defendant's drive-ins were found to be restaurants or eating places within the popular and usual definition, they should not be considered as facilities "principally engaged in selling food for consumption on the premises". The adverb "principally" is defined as "primarily; chiefly, mainly, in the principal manner, in the chief place or degree". Webster's International Dictionary, Second Edition. Under the plain meaning of the phrase one who serves fifty percent or less of its food which is taken away and eaten off the premises cannot be held to be principally engaged in selling food for consumption on the premises. The uncontradicted evidence before the court is that only fifty percent of the food served at defendant's drive-ins is consumed off the premises, and all of its patrons are encouraged to take their orders elsewhere for consumption.
The court therefore concludes that defendant's five drive-in establishments are not principally engaged in serving food for on the premises consumption, and are not places of public accommodation within the meaning and purview of the Civil Rights Act of 1964; thus, plaintiffs are not entitled to the demanded relief as to them. On the other hand it is concluded that "Little Joe's Sandwich Shop" is principally engaged in selling food for consumption on the premises, and is therefore a place of public accommodation with the Act. As to it, plaintiffs have established their right to the requested relief. It is, therefore,
Ordered that an injuction will issue in the following terms:
(a) The defendants, Piggie Park Enterprises, Inc., and L. Maurice Bessinger, their agents, employees, successors, and all persons acting in concert with them, and at their direction, are enjoined from refusing to admit Negroes to the premises of Piggie Park No. 7, also known as "Little Joe's Sandwich Shop", located at 1430 Main Street, Columbia, South Carolina, upon the same basis and upon the same conditions that non-Negro members of the general public are admitted to said establishment;
(b) They are also enjoined from failing or refusing to sell food, meals, or other merchandise and to provide services, facilities, privileges, advantages and accommodations to Negro patrons at said establishment upon the same basis and upon the same conditions that they are made available to patrons and customers of other races.
In order that the defendants may have an opportunity to appeal, and if they so desire to seek a stay of this order until such appeal is consummated, it is ordered that the foregoing injunction shall become effective thirty days from the date hereof, to wit, on the 27th day of August, 1966. Court costs exclusive of attorneys' fees are hereby awarded to plaintiffs. Let judgment be entered accordingly.
"(a) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subchapter and shall exercise the same without regard to whether the aggrieved party shall have exhausted any administrative or other remedies that may be provided by law.
"(b) The remedies provided in this subchapter shall be the exclusive means of enforcing the rights based on this subchapter, but nothing in this subchapter shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this subchapter, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right. Pub.L. 88-352, Title II, § 207, July 2, 1964, 78 Stat. 245."
"(a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.
"Establishments affecting interstate commerce or supported in their activities by State action as places of public accommodation; lodgings; facilities principally engaged in selling food for consumption on the premises; gasoline stations; places of exhibition or entertainment; other covered establishments
"(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
"(c) The operations of an establishment affect commerce within the meaning of this subchapter if (1) * * * (2) in the case of an establishment described in paragraph (2) of subsection (b) of this section, it serves or offers to serve interstate travelers or a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce; * * *"
"Q Mr. Bessinger, with reference to the total volume of your business, do you know how much of your business is carry out, or take away business from your drive-ins?
"A Yes. Of course, as I said, we try to encourage this to the maximum degree. This would average 50%. Carry out would average 50%. I say average, because in the real cold temperature it would jump up to eighty to ninety percent; in the real hot temperature it would also jump up to eighty to ninety percent. So it will have an overall percentage of my business that I know for a fact is carried back to the office or carried back home or carried on a picnic, what have you.
"Q Do you in fact have facilities for bulk carrying out?
"A Yes we sell a lot of barbecue by the pound. We sell a lot of quarts of hash by the quart, and slaw by the quarts, and rice by the quarts. We built up quite a big business on that.
"Q Carry off?
"A Oh absolutely, and July 4th we sell several tons of barbecue."
It is noted that plaintiff's counsel did not cross-examine Bessinger to any extent in reference to the above testimony and no evidence was offered to counter or rebut the same.
"Section 201(b) defines certain establishments to be places of public accommodation if their operations affect commerce * * * These establishments are * * * (2) restaurants, lunch counters, and similar establishments, including those located in a retail store; and gasoline stations." (Emphasis added.) By this statement the inference could be drawn that the disjunctive "or" in Section 201(b), as enacted, limited the qualifying phrase to "other facility". In other words, "or other facility principally engaged in selling food for consumption on the premises" means only "and similar establishments". The court, however, is persuaded in that "other" as used in its primary sense of "one of two or more" requires the qualifying phrase to be read with "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain" or at least required to be used to define "restaurant, lunchroom, lunch counter, soda fountain."