the right of Howard Johnson's Restaurant to discriminate. It did not pass on whether Congress would have the right to pass legislation dealing with this problem.

Also, it dealt with whether there was any constitutional right under the commerce clause to be served by this restaurant.

Senator ERVIN. The case says in as plain words as can be found in the English language that this Howard Johnson Restaurant was not engaged in interstate commerce.

Attorney General KENNEDY. But, Senator, under the Interstate Commerce Act. They had reference to the Interstate Commerce Act. Senator ERVIN. Well, we disagree, Mr. Attorney General. I say the case says in just as plain English as any judge can ever use that this restaurant was not engaged in interstate commerce because it received and served interstate travelers along with its other customers. Listen:

We think, however, that the cases cited are not applicable because we do not find that a restaurant is engaged in interstate commerce merely because in the course of its business of furnishing accommodations to the general public it serves persons who are traveling from State to State.

Attorney General KENNEDY. Let me say, Senator, that Howard Johnson's Restaurant and other Howard Johnson Restaurants have been covered by other legislation that has been passed by Congress under the commerce clause of the Constitution.

Senator ERVIN. What?

Attorney General KENNEDY. Well, for instance, minimum wage, fair employment standards, the oleomargarine act. Let me read you from section 347:

Colored oleomargarine, or colored margarine which is sold in the same State or territory in which it is produced, shall be subject in the same manner and to the same extent to the provisions of this chapter as if it had been introduced in interstate commerce.

I can give you a number of other citations, Senator. That decision had reference to the Interstate Commerce Act, not reference generally to interstate commerce.

Senator ERVIN. The case says in plain English that a restaurant is not engaged in interstate commerce

Attorney General KENNEDY. Senator, they have already put restaurants under interstate commerce under Fair Employment and Minimum Wage legislation.

Senator ERVIN. In an entirely different context.

Attorney General KENNEDY. They have to have an effect on interstate commerce.

Senator ERVIN. This Howard Johnson's Restaurant case said the restaurant was not engaged in interstate commerce merely because it serves interstate travelers.

Attorney General KENNEDY. Let me say there are numerous precedents in which you would cover a Howard Johnson's Restaurant or any other restaurant. If you can tell a restaurant that, if they purchase oleomargarine in the State of Virginia and sell it there, they have to put it in the form of a triangle rather than a square and mark it plainly, certainly you can tell them not to discriminate, certainly you can govern this kind of practice by legislation.

Senator ERVIN. You are talking about the congressional regulation based upon the shipment of goods. I am talking about the contention that congressional regulation may be based upon the mere fact that the interstate travelers may come along and eat in restaurants.

Attorney General KENNEDY. I don't think I go along with that. Senator ERVIN. I assert that subsection (i) of section 201(a) is based upon the theory that those who deal in local transactions with interstate travelers who interrupt their interstate travel to participate in such local transactions can be regulated by Congress. I deny the validity of this theory. You are quoted in the press as claiming that this bill does not cover shoeshine boys. I contend the contrary. When you read subsection (3) of section 202 (a) in conjunction with subsection (ii), a shoeshine boy is covered if a "substantial portion" of the goods he holds out to the public for "use" have moved at any time in interstate commerce. Consequently, a shoeshine boy who operates a place and uses as his sole stock in trade a shoebox, a can of polish, and a rag, which have moved in interstate commerce, would be covered by subsection (ii) because all of the things used by him would certainly constitute a substantial part. He would also be covered by subsection (i) if services are "provided to a substantial degree to interstate travelers." As I construe the bill, any person engaged in any activity enumerated in subsections (i), (ii), (iii), and (iv) of section 202 (a) would be covered by the bill if his activities fell within the descriptions contained in either subsections (i) or (ii) or (iii) or (iv). The conditions described in each one of these subsections are alternatives. They are certainly not expressed in the conjunctive. Do you agree with me on that point?

Attorney General KENNEDY. They are alternatives, Senator.

Senator ERVIN. So anybody would be covered rendering any of these services if "a substantial part of any goods held out to the public by any such place or establishment for sale, use, rent, or hire, has moved in interstate commerce.'

This provision does not require that there be any substantial effect on interstate commerce. It says one is covered if a substantial part of the goods which he sells or uses or rents or hires have moved in interstate commerce.

If a shoeshine boy did not have anything except a can of polish and a rag and a shoebox for his customers to put their shoes on while he shines them, that would be all the equipment he would have and that would certainly be a substantial portion of his equipment.

Certainly 100 percent of anything would be a substantial portion. No one can give any other meaning to subsection (ii), which appears on lines 18 to 21.

Let us go back to Senator Aiken's constituent the imaginary Mrs. Murphy. If Mrs. Murphy posts a sign saying "Tourist Home" or "Overnight Guests Accepted", and rents rooms in her dwelling to transients, she would certainly be covered by the bill if a substantial part of her overnight guests had traveled in interstate commerce or if a substantial part of the furniture in the rooms she rented had moved in interstate commerce.

Attorney General KENNEDY. Could I make a comment now?
Senator ERVIN. Yes.

Attorney General KENNEDY. First, on the question of the shoeshine boy, there are a couple of points that I would make. First, a shoeshine boy is not a retail shop, a department store, a market, a drugstore, a gasoline station or other public place which keeps goods for sale, a restaurant, lunchroom, lunch counter, soda fountain or other public place engaged in selling food for consumption on the premises

Senator ERVIN. Suppose you read down to the line where it says "Rendering service." He is rendering service when he shines shoes. Attorney General KENNEDY. Subsection (ii) applies to (3). Paragraph 3 states what kind of establishments are covered and subsection (ii) then qualifies that.

Now, a shoeshine boy is none of those things. So a shoeshine boy, right at the beginning, if he does not want to shine the shoes, if you are concerned about his shining the shoes of a Negro, he will not have to do it.

Senator ERVIN. Mr. Attorney General, he renders a service, does he not?

Atorney General KENNEDY. But he has to be any one of

Senator ERVIN. Wait a minute. He renders a service?

Attorney General KENNEDY. That is correct.

Senator ERVIN. And in the rendering of that service, he uses polish, does he not?

Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. All right; it says right here that if any person who renders a service

Attorney General KENNEDY. No; it does not, Senator. Where does it say that?

Senator ERVIN. I was going to read it to you.

Attorney General KENNEDY. It does not say any person, Senator. Senator ERVIN. It says any place-any establishment.

Attorney General KENNEDY. Where does it say any place?

Senator ERVIN. Look here. It says "and any other establishment where goods, services, facilities, privileges, advantages, or accommodations are held out to the public for sale, use, rent, or hire, if a substantial portion of any goods held out to the public by any such place or establishment for sale, use, rent, or hire has moved in interstate commerce."

Attorney General KENNEDY. Do you consider a shoeshine boy an establishment, Senator?

Senator ERVIN. I consider he has an establishment if he has a place where he shines shoes, yes.

Attorney General KENNEDY. It says establishment. Do you consider a shoeshine boy an establishment?

Senator ERVIN. I consider where he shines shoes a place.
Attorney General KENNEDY. It says any-

public place engaged in selling food for consumption on the premises and any other establishment where goods, services

And so on. So either you have to say he is a "public place" or an "establishment." I question very much whether a shoeshine boy

Senator ERVIN. I would say a shoeshine boy who works in a shoeshine parlor has an establishment.

Attorney General KENNEDY. That is quite different. I would say he might very well be covered. But that is quite different.

Senator ERVIN. All right. If a shoeshine boy has a place where he shines shoes and the goods he uses consists of one can of polish, one rag, and one shoebox which have moved in interstate commerce, he would be covered.

Attorney General KENNEDY. No; I do not believe he would still be covered. I was going to make two points.

First on the question of the shoeshine boy: I do not think he would be covered. If he was part of an establishment, it might be questionable. Depending on where he was, if for instance he was part of a railroad station, part of an airport, part of a bus station, he might be covered. But I think quite clearly a reading of subsection (ii) refers to goods held out to the public.

First, we have covered services in subsection (i). Subsection (ii) refers only to establishments that hold goods out to the public.

Senator ERVIN. The bill speaks of those who hold goods out to be used. Certainly when a fellow has some polish and puts it on shoes it is being used.

Attorney General KENNEDY. That kind of an establishment is a service establishment. Could I answer, please? A service establishment is quite clearly covered in subsection (i). Subsection (ii) refers only to places that provide goods. In service establishments the shoeshine establishment for instance-we would have to have its accommodations or services provided to a substantial degree in interstate travel. If it was in a bus terminal or a railroad terminal, it would be covered. But if it is just an establishment that uses goods, incidentally, for instance, a barbershop that just puts some stuff on your hair-that kind of establishment would not be covered by (ii), but only by_(i).

Senator ERVIN. I notice your explanation depends on the assumption that only places and establishments do things instead of human beings that have places and establishments.

Attorney General KENNEDY. No.

Senator ERVIN. If you are going to quibble in that way, this bill does not apply to anything, because the word "person" is not mentioned from line 6 on page 14 through line 3 on page 15. Attorney General KENNEDY. I do not understand that, Senator. Senator ERVIN. You are talking about persons. You are making the point that this bill refers to "places and establishments" rather than people.

bill.

Attorney General KENNEDY. I am just reading from what is in the Senator ERVIN. "Places and establishments" would be places and establishments run by people. If a shoeshine boy had any place where he shines shoes, he would have a place and he would be using his polish and if the English language means anything, he would clearly be covered.

Attorney General KENNEDY. Senator, I think there are two reasons why he is not covered. First, I question whether an individual shoeshine boy is a public place or an establishment. If you put him in with others, and have a store, I think then he becomes an establishment. No. 2: I do not think such an establishment would be covered by

subsection (ii) which you read, applying to the goods held out. Subsection (i) applies to services.

Senator ERVIN. Sub-sub-section (ii) speaks of goods to be used. A shoeshine boy certainly has polish to be used, a rag to be used, and a shoebox to be used.

Attorney General KENNEDY. Senator, he is performing a service. Just incidentally, he is also providing some shoeshine material, but he is performing a service. That is covered in subsection (i).

Senator ERVIN. It is also covered in (ii) if a substantial portion of the goods he holds out for use have moved in interstate commerce. Attorney General KENNEDY. Senator, I do not think that reading paragraph (3), (i), (ii), (iii), and (iv), you would reach that conclusion. If it is confusing, we would be glad to clarify subsection (ii).

Senator ERVIN. You have admitted that if shoeshine boys work in a shoeshine parlor, they would be covered.

Attorney General KENNEDY. No; I don't think I am making myself clear. They would not be covered unless they came under subsection (i), which covers places whose services are provided to a substantial degree to interstate travelers.

They would not be covered by subsection (ii) at all. What they are providing is services, not goods.

Senator ERVIN. You said you thought they would be covered if they had an establishment where there were a number of shoeshine boys.

Attorney General KENNEDY. Senator, only under subsection (i). Therefore, in airports, railroad stations they would undoubtedly be covered. They would only be covered if they met the qualifications under subsection (i). They would not be covered under subsection (ii), because what they are offering is services, not goods.

Senator ERVIN. Sub-sub-section (ii) speaks of a substantial portion of any goods held out to the public for use.

He holds out his polish, he holds out his shoeshine rag, and holds out his shoebox to the public for use.

Attorney General KENNEDY. Let me say, Senator, first you cover services specifically in subsection (i). Subsection (ii) refers, I think quite clearly, if you read the whole paragraph, only to the sale of goods. If there is confusion about it, Senator, we would be glad to place in there

Senator ERVIN. I don't think there is any confusion. I think it is clear that sub-sub-section (ii) is a part of subsection (3), which appears on lines 6 to 13 on page 14. Subsection (3) covers "any **establishment where goods, services, facilities, privileges, advantages, or accommodations are held out to the public for sale, use, rent, or hire if*** a substantial portion of any goods held out to the public by any such place or establishment for sale, use, rent, or hire has moved in interstate commerce."

Attorney General KENNEDY. Senator, that would be peripheral sale of goods at best. I do not think the law concerns itself with such minimal transactions. I think it is quite clear, from reading this whole section that we did not intend to cover in subsection (ii) those establishments which just offer goods as a peripheral part of their services. Senator ERVIN. The word "use" cannot mean sale.