GEWIN, Circuit Judge:
A panel of this court rendered a decision in this cause on September 6, 1967 (No. 24259), 391 F.2d 86,
Fun Fair Park, incorporated under Louisiana law as Amusement Enterprises, Inc., is a privately owned amusement park which ostensibly offers its facilities to the general public. The amusement park is located in Baton Rouge, Louisiana, approximately 150 yards from Airline Highway, which runs between Baton Rouge and New Orleans, Louisiana. The park covers about two and three-quarters acres of land in a business and residential area. Fun Fair operates eleven major mechanical rides for children, namely, the Train Ride, Roto-Whip, Ferris Wheel, Zoom Ride, Roller Coaster, Bumper Car Ride, Swinging Jim, Caterpillar Ride, Boat Ride, Track Turnpike, and Merry-go-round. In addition, it operates an ice skating rink during the months of November, December, January and February and maintains an ice skate rental service. Located on the premises is a small concession stand from which refreshments such as cold drinks, hot dogs, popcorn, cotton candy, snowcones, ice cream, assorted sandwiches and coffee may be purchased. Fun Fair's advertisements over radio and television solicit the business of the public generally with no expressed restriction or reservation as to race or interstate travel. However, the manager stated in his deposition that the facilities are only open to those of the public who are white, properly attired and who properly conduct themselves. The manager further stated that it is the policy of Fun Fair to exclude Negroes and that no change in policy is contemplated.
Mrs. Miller, in response to Fun Fair's advertisement that "Everybody come," took her two children, Daniel age 12 and Denise age 9, to the park to ice skate. At the skate rental counter she asked for skates for Denise, who has a fair or light complexion, and the attendant thinking the little girl was white, promptly handed Mrs. Miller a pair of skates. Daniel, dark-complexioned, who had been sent back to the Miller car for heavy socks, then joined his mother and sister. The rented skates were soon discovered to be too small and Mrs. Miller returned to the rental stand and placed the skates on the counter. In the meantime the attendant had discovered that the child was Negro and he had left the skate room to inform the manager of the situation. As the manager approached the counter, Mrs. Miller stated to him that the skates did not fit. The manager snatched the skates off the counter and announced to Mrs. Miller that Fun Fair did not "serve colored". The people standing in line waiting to rent skates began to giggle, and Denise, frightened and disappointed at not being allowed to skate, started crying. As Denise stood there crying others in line appeared to be amused. Mrs. Miller and her children quickly left the park.
Mrs. Miller, individually and on behalf of her minor children, Denise and Daniel Miller (appellants), brought this action in the United States District Court for the Eastern District of Louisiana pursuant to Title II of the Civil Rights Act of 1964, §§ 201(b) (3) and (c) (3), 42 U.S.C. §§ 2000a(b) (3) and (c) (3), to enjoin Amusement Enterprises, Inc., d/b/a Fun Fair Park (Fun Fair) from denying Negroes access to its amusement park. At the pre-trial conference it was stipulated by the parties that appellants were making no claim that Fun Fair was operating in violation of §§ 201(b) (2), (c) (2), (b) (4) or (c) (4), 42 U.S.C. §§ 2000a(b) (2), (c) (2), (b) (4) or (c) (4)
Subsequent to appellants' petition for rehearing in this case, the United States filed with this court a memorandum as amicus curiae on appellants' petition.
Neither party has asked to be relieved of the stipulation. Appellants' answer to the Government's memorandum takes issue with the Government's assertion that the stipulation renders appellants' cause of action a mere hypothetical question and contends, primarily, that the Government's request is contrary to and does violence to Rule 16, Federal Rules of Civil Procedure.
We uphold the stipulation voluntarily agreed upon by the parties involved. The stipulation does not create a situation which does not in fact exist. The stipulation does not exclude any of the facts involved in this case, but, in effect, specifically reserves for consideration by the court, in particular, the facts pertaining to the concession stand operated by Fun Fair at its amusement park. The stipulation does no more than state that appellant has agreed not to present a claim under certain sections of the Civil Rights Act. Thus, the parties are not presenting to us a hypothetical situation, nor are we asked to render an advisory opinion because the facts in this case as found in the record make it abundantly clear that a "case or controversy" actually exists between adverse litigants. We, therefore, honor the stipulation. Associated Beverages Co. v. P. Ballantine & Sons, 287 F.2d 261 (5 Cir. 1961); Laird v. Air Carrier Engine Service, 263 F.2d 948 (5 Cir. 1959). However, we refrain from deciding the question, posed by the Government in its brief on rehearing, of whether the parties can, by stipulation, bind the court as to a theory of law thereby restricting the court in its application of the law to the facts presented. In view of our decision holding Fun Fair to be a covered establishment under §§ 201 (b) (3) and (c) (3) of the Act, it is not necessary for us to consider this issue.
Sections 201(a), (b) (3) and (c) (3) provide:
There is no claim or evidence that the discrimination complained of is supported by State action. Therefore our inquiry is narrowed to the question of whether Fun Fair is a "place of * * * entertainment" which "customarily presents
The district court held that Fun Fair is not a place of entertainment as described in § 201(b) (3) and does not affect commerce as that term is specifically defined in § 201(c) (3) of the Act. The court was of the opinion that the term entertainment referred to in § 201(b) (3) is limited by the language of the section and by the application of the old and accepted rule of statutory construction known as ejusdem generis to such entertainment which is exhibitive and not participative. The court further stated that even if it were to find an amusement park to be a place of public accommodation under § 201(b) (3), it still could not be held to affect commerce under § 201(c) (3). In so concluding the court again applied the ejusdem generis rule in defining the term entertainment as used in § 201(c) (3) and, additionally, placed particular emphasis on the phrase "which move in commerce" concluding that the mechanical rides at Fun Fair which are permanently affixed do not "move".
On appeal to this court the Government was requested to file with the court a brief setting forth the legislative history of the applicable provisions of the Civil Rights Act to the extent that such history might be pertinent to the issues involved.
We are unable to agree with those concepts which would prefer, or those which would demand, that the Civil Rights Act be narrowly construed, i. e. the establishments referred to in § 201 (b) (3) must be places of entertainment which present exhibitions for spectators and that such exhibitions must move in interstate commerce. However, while not necessary to our decision, as will be seen by a further reading of this opinion, we find that Fun Fair is covered by the literal terms of the Act. Although it may be that the types of exhibition establishments listed in § 201(b) (3) are those which most commonly come to mind, no one would dispute the proposition that such list is not complete or exhaustive. Therefore, any establishment which presents a performance for the amusement or interest of a viewing public would be included. In our view Fun Fair is such an establishment. The amusement park presents a performance of small children riding on various mechanical "kiddie" rides plus a performance of ice skating. It is obvious to us that many of the people who assemble at the park come there to be entertained by watching others, particularly their own children, participate in the activities available. In fact Mrs. Miller's presence at the park
Our reading, study and careful consideration of the Civil Rights Act and its legislative history compels us to conclude that the general intent and overriding purpose of the act was to end discrimination in certain facilities open to the general public. We agree with the view of the Government, expressed in its memorandum to this court, that the legislative history of §§ 201(a), (b) (3) and (c) (3) is "inconclusive" and the opinion of the dissenting judge in this case that such legislative history is "obscure" on the precise question of whether recreational facilities such as those under consideration were intended by Congress to be covered by the Act. Even the majority opinion of the original panel which heard this case recognized the fact that such history could support differing interpretations of the statute. In view of the "inconclusive nature" of the legislative history and in light of the overriding purpose of the Act, we hold that Fun Fair Park is a place of public accommodation under §§ 201(b) (3) and (c) (3) of the Civil Rights Act.
We do not read §§ 201(b) (3) and (c) (3) with narrowed eye but with open minds attuned to the clear and strong purpose of the Act, namely, to secure for all citizens the full enjoyment of facilities described in the Act which are open to the general public. That Title II of the Civil Rights Act is to be liberally construed and broadly read we find to be well established.
We find that the phrase "place of entertainment" as used in § 201 (b) (3) includes both establishments which present shows, performances and exhibitions to a passive audience and those establishments which provide recreational or other activities for the amusement or enjoyment of its patrons. Although we recognize that ejusdem generis is an old and accepted rule of statutory construction, we do not believe that it compels us to accord words and phrases embodied in the statute a definition or interpretation different from their common and ordinary meaning; or that the rule requires us to interpret the statute in such a narrow fashion as to defeat what we conceive to be its obvious and dominating general purpose. In Borough of Hanover v. Criswell, 205 Pa.Super. 65, 66 (1965), 208 A.2d 39, the Pennsylvania court dealt with the principle of ejusdem generis and reached a conclusion similar to the one we have reached here.
Webster's Third New International Dictionary defines entertainment as the act of diverting, amusing, or causing someone's time to pass agreeably; amusement. Synonyms for entertainment as found in various sources
We also conclude that the operations and activities conducted and sponsored by Fun Fair affect commerce within the internment of the Act. To conclude otherwise would be to ignore those very operations and activities. Fun Fair is located on a major artery of both intrastate and interstate transportation; it advertises over radio and television stations; its advertisements solicit the business of the public generally with no restriction as to interstate travel; ten of its eleven mechanical rides admittedly were purchased from sources outside Louisiana; and although the items sold in the concession stand are listed in the record as having been purchased from businesses within the State, the record does not show whether the products sold by Fun Fair actually originated in Louisiana. The emphasis placed on the term "move" as used in § 201(c) (3) by the district court in the instant case and by the district court in Kyles v. Paul, supra, is misplaced. Such reasoning is like pulling a straw from a haystack and then judicially declaring that the entire stack has collapsed. Obviously in doing so the court would be ignoring reality. The use of the present tense, move, was not meant to exclude the word's other verb tenses, moving, moved, or has, had or have moved. As stated in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, "We can not derive so much from so little." The "draftsman's choice of tense" should not control our decision.
Additionally, in Twitty v. Vogue Theatre Corp., 242 F.Supp. 281 (M.D.Fla.1965) the defendant movie theater contended that its establishment did not affect commerce within the meaning of § 201(c) (3) because the films it presented had come to rest in Florida and therefore did not move in commerce. It submitted that even though the films were produced outside Florida, they had been shipped to a Florida corporation for distribution within the State, which corporation had then forwarded the films to defendant. This contention was rejected by the court. Although the court recognized that the movement of the films between Florida corporations located within the state was purely intrastate and not movement in interstate commerce, the court stated, "* * * but the Act does not restrict the time for determining the nature of the movement of the film * * *." Consequently, considering all of the facts, circumstances and factors which we have discussed brings us to the firm conclusion that the operations and activities conducted by Fun Fair come within that category of activities which affect commerce as that term is defined in § 201(c) (3).
Moreover, the facts clearly demonstrate that Fun Fair had numerous direct and indirect contacts with interstate commerce. The authority to regulate purely local activities operating within a single state has been held to be vested in the Congress if such activities burden the flow of commerce among the states. As Justice Black stated in his separate opinion in the Atlanta Motel case, supra, and in Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, the Supreme Court has long recognized "[t]hat Congress could not fully carry out its responsibility to protect interstate commerce were its Constitutional power to regulate that commerce to be strictly limited to prescribing the rules for controlling the things actually moving in such commerce or the contracts, transactions, and other activities, immediately concerning them." (Emphasis added) He went on to conclude:
The Civil Rights Act was enacted with a spirit of justice and equality in order to remove racial discrimination from certain facilities which are open to the general public. On January 28, 1963,
We do no more, today, than abide by this spirit embodied in law. We do no injustice to the language employed to reduce this spirit to writing. In fact to do otherwise would be an injustice, and would be to pay homage to that same inequality which the laws of our land, the Congress in enacting them, the courts in interpreting them, and the executive branch in its enforcement efforts have strived to eradicate.
Finally, to allow an amusement park such as Fun Fair to open its doors to all and invite the patronage of the public generally and then permit it to exclude Negroes under the facts presented by this record would violate the clear purpose and intent of the quoted sections of the Civil Rights Act of 1964. One of the purposes of that legislation was to eliminate the inconvenience, unfairness and humiliation of racial discrimination. This case demonstrates the evils of such discriminatory practices especially when imposed upon a child of tender years during the formative period of her life, which practices, no doubt, generate permanent attitudes which become evident and active later. The venom of hate and prejudice should not be generated and cultivated at any time, especially during the early years of childhood. Once such attitudes have originated and are then fed and nurtured to maturity, they become permanent and explosive. We refuse to register our acceptance of the conduct here involved. To do so would shock our conscience and disturb our mind.
We are not only dealing with the language of the statute, but we must look as well to the logic of Congress and the broad national policy which was evidenced by its enactment. Our system does not favor mechanical jurisprudence; it seeks to find the purpose and spirit of a statute and the intention of its makers. Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226, 228; National Woodwork Manufacturers Asso. v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, 364.
For the various and several reasons heretofore discussed, we hold Fun Fair Park to be an establishment covered by §§ 201(b) (3) and (c) (3) of the Civil Rights Act. The judgment of the district court is, therefore, reversed.
RIVES, Circuit Judge, with whom Circuit Judges DYER and SIMPSON join (dissenting):
The judicial function is to determine not what the law should be, but what Congress, after hearings, conflict, compromise and change, finally enacted into law. That decision should be influenced neither by the appealing facts of this particular case nor by other factual situations in which the Congress may have had reason to believe that forced association in participant amusements might arouse antagonism or conflict, for the same statute must apply to the broad spectrum of cases which includes both extremes. The law which Congress intended to enact seems to me to be carefully and correctly stated in the able
CLAYTON, Circuit Judge:
I dissent, not for the purpose of saying that the majority has reached an undesirable result, since that is not the question. The problem, as I see it, is one of law, not emotion, nor sociology, nor even philosophy. I recognize, as I must, that the facts which started this case on its journey to this court have a strong appeal to our sympathies — mistreatment of a small child, too young to know, or even care whether there is any real difference between a place for the entertainment of spectators only and a place for the entertainment of spectators and participants also. There may well be no such difference. But on the facts here, when viewed objectively, Congress made a difference which we have no right to disregard.
From the bills as introduced in both houses to the law as passed, legislative metamorphosis, which is normal with respect to all proposed legislation of a controversial nature, in this instance, as it has in others, may have resulted in a law less sweeping, less inclusive than many may have hoped. However, courts should take statutes as written, not as proposed nor as they might have been.
I agree with the fine objective opinion of Judge Rives, who wrote for the majority on original hearing. I also agree with the conclusions reached by the district court as reported in 259 F.Supp. 523 under the same style as the case here. Amusement parks, such as the one here, which offer no exhibitions for the entertainment of spectators are not places of entertainment as contemplated by Section 201(b) (3) of the Civil Rights Act of 1964.
I would affirm the judgment of the district court.
COLEMAN, Circuit Judge:
Judge Clayton has exactly stated the views I entertain with reference to this case. I therefore join in his dissent.
Section 201(b) (2): "any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises * * *"
Section 201(b) (4): "any establishment * * * within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment."
Section 201(c) (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 * * * has moved in commerce."
Section 201(c) (4): "in the case of an establishment described in paragraph (4) of subsection (b) of this section, there is physically located within its premises, an establishment the operation of which affect commerce within the meaning of this subsection."
We deem it appropriate to quote from a Presidential message to Congress with respect to legislation of great national concern. In Hamm v. City of Rock Hill, 379 U.S. 306, 315, 85 S.Ct. 384, 391, 13 L.Ed. 2d 300, 307, the Supreme Court stated: