Attorney General KENNEDY (continuing). In hotels and motels and other kinds of establishments which together have a cumulative effect on interstate commerce. I might call your attention to Baldwin v. Morgan, decided in 1961, which dealt with regulations that were put in the railroad terminal, in Birmingham, Ala. Signs were maintained designating the facilities as being for colored intrastate passengers or "interstate and white intrastate passengers." The Court held: Negroes are entitled to be free of that discrimination at the hands of State, city, and police officials. The city has, to be sure, recognized that as to interstate passengers it may not enforce its prior practices. But in the very execution of that policy, by the demand for examination of the tickets, it inescapably violates the demands of the Constitution that a Negro traveler sitting in the waiting room be treated as would a white traveler on the next bench. So the point is that if you try to distinguish between people stopping at a hotel as to whether they are traveling intrastate, and should therefore be treated in one way, or whether they are traveling interstate, that would be illegal under this case. Senator ERVIN. What court held that? That was a carrier. Attorney General KENNEDY. It is the Fifth Circuit. Attorney General KENNEDY. The Fifth Circuit. Senator ERVIN. That was somebody engaged in the operation of a railroad which transported passengers from one State to another. Attorney General KENNEDY. It wasn't a carrier, Senator. Senator ERVIN. Was it a local ordinance? If so, it involved State action and was a correct ruling. I don't think that has any application to this bill. Attorney General KENNEDY. I think it does, Senator, because I think it indicates the kind of burden which is imposed where you try to distinguish between intrastate and interstate. Based on that case, and also the fact of the cumulative effect that these motels and hotels have Excuse me? Senator ERVIN. I would like to have the citation, because if it was a railroad engaged in interstate commerce or if it was done pursuant to a town ordinance it has no relation to what we are discussing. Attorney General KENNEDY. 287 F.2d 750, decided in 1961. Senator ERVIN. 750? Attorney General KENNEDY. By the Fifth Circuit. (NOTE. Concerning the case of Baldwin v. Morgan, 287 F. 2d 750, inserted by Senator Ervin pursuant to leave of the Chairman of the Committee subsequent to the testimony of the Attorney General concerning such case :) Senator ERVIN. After the adjournment of the committee, I read the case of Baldwin v. Morgan, 287 F. 2d 750. In my judgment, the ruling in such case has no relation to the public accommodations provisions of the bill. The case involved the posting of certain notices in the railroad terminal station at Birmingham, Ala., which was a part of the apparatus of interstate commerce used by railroads engaged in the interstate transportation of passengers. Moreover, the notices in question were posted pursuant to orders issued by the State Public Service Commission of Alabama acting under an Alabama statute, and the rulings embodied in such notices were enforced by policemen of the city of Birmingham acting under color of their offices. These things being true, the case involved both an instrumentality of interstate commerce and State action, and has no relevancy to the public accommodations provisions of the pending bill, which undertakes to regulate the use of privately owned propety and activities of individuals within the borders of a State. The second group of transients which a hotel, or motel, or other public place engaged in furnishing lodging to tourist guests would have to receive and furnish accommodations, includes "guests from other States." If I construe this provision aright, the operator of a hotel or motel or other public place engaged in furnishing lodging to transient guests would have to receive visitors from another State even though they had put an end to their interstate travel and had stayed for an indefinite period of time within the borders of the State in which the hotel, or motel, or other public place is located. Attorney General KENNEDY. That is correct. May I just give you another example? If an individual went into a restaurant in a bus terminal, even though he might never have been out of the city, was clearly intrastate, he would still have to be received. Still there could be no discrimination against him. Senator ERVIN. You are dealing with acts of Congress which govern the actions of railroad and bus companies engaged in interstate commerce. A restaurant in a bus station is maintained as a part of the facilities of interstate commerce just as much as a dining car on a train is. That is quite different from local businesses. I will not argue with you further on that point. Now with reference to Mrs. Murphy, wouldn't she be covered by subsubsection ii of subsection 3, of section 202 as set out on page 14, if the other conditions enumerated existed? Attorney General KENNEDY. No, she would not. in her house She is a woman who rents a few rooms Attorney General KENNEDY. She is covered over here in section 202 (a) (1). That is the first point. The second point is that subsection refers to establishments that are primarily in the business of selling goods, not services. She would be providing services. Senator ERVIN. She would be renting goods, too. She would be renting a bed. She would be renting the use of towels, soap, and plumbing. She would be renting the use of a mattress, sheets, blankets, and other furniture. Consequently, she would be covered. Attorney General KENNEDY. No, I don't believe she would, Senator. Senator ERVIN. Well, don't you consider furniture goods? Attorney General KENNEDY. Now Senator, again we go back to the same discussion we had yesterday. I think it is clear from reading this whole section that that kind of establishment would not be covered. I would be happy, however, if there is any confusion in your mind, to add appropriate wording to make it clear that subsection (ii) applies to those establishments that are primarily utilized in the sale of goods. Senator ERVIN. Let's go back to subsubsection (i) then. That would get Mrs. Murphy who certainly renders service. I think she is also renting goods. I think when she rents a bed for a guest to sleep in and chairs for a guest to sit in she is renting goods. But to go back to subsection (i) on page 14, if she provides these accommodations in any substantial degree to interstate travelers Attorney General KENNEDY. I think, Senator, the determination of whether she would or would not be covered is over here in 202 (a) (1). It seems to me that makes much more sense. Senator ERVIN. I am just asking though whether she is covered by the bill. Attorney General KENNEDY. Tell me about Mrs. Murphy and I will tell you. Senator ERVIN. I am talking about Mrs. Murphy, Senator, George Aiken's imaginary constituent. She is a widow who rents a few bedrooms in her dwelling house to tourists and puts out a little sign saying "tourist home" or "overnight guests accepted.' Wouldn't she be covered if she rented three rooms to tourists and one-third of the tourists renting them were interstate travelers? Attorney General KENNEDY. I don't believe she would, Senator. Senator ERVIN. You don't? Attorney General KENNEDY. Senator, I don't think she would be covered. It was not our intention to cover that kind of establishment where there is almost a personal relationship rather than a financial arrangement, where Mrs. Murphy or whoever it is, the proprietor, lives in the quarters and then perhaps rents out one or two rooms. It was not our intention to cover such places. I have also said to the other committees that if they feel that that is not clear from my testimony, we would be glad to work with the committee to try to clarify the matter. Senator ERVIN. I think it is very clear that if Mrs. Murphy rents rooms in her dwelling house to tourists and a third of her guests were interstate travelers, she would be covered by sub-subsection (i) on page 14. Attorney General KENNEDY. But Senator Senator ERVIN. Mr. Attorney General, I have inserted in the record extracts from two judicial decisions. One of these decisions, the Camp Walden case, which was decided by the Supreme Judicial Court of Maine, defines what a tourist home is. It states that a person is engaged in operating a tourist home when he rents out rooms in his dwelling house to temporary guests. The second case is Purdy v. Moise, which is a decision of the Supreme Court of South Carolina. That case involved the question as to the meaning of the word "hotel" used in a zoning ordinance. The South Carolina Supreme Court expressly held that the word "hotel" as used in such ordinance included "a tourist court" and "a motor court." I respectfully submit that if the word "hotel" can be construed to cover a "tourist court" or a "motor court," it can likewise be construed to include a "tourist home." Indeed I think that such construction is sound and that the word "hotel," as used in subsection (1) of section 202 (a) on page 13 of this bill, is sufficient to bring Mrs. Murphy's tourist home under Federal regulation, if the tourists renting rooms in Mrs. Murphy's dwelling are "to a substantial degree" interstate travelers or if "a substantial portion" of the furniture in the rooms she rents to tourists has moved in interstate commerce at any time in the past. How would a man who operates a small restaurant in my hometown know whether he is covered by the public accommodations provisions of this bill? He could not possibly know whether he is brought under coverage under subsection (i) on page 14 unless he assigns employees to the task of crossexamining all of his customers to find out where they come from and where they are going. He could not possibly know whether he is brought under coverage by subsubsection (ii) on page 14 unless he spends his energy and his time in determining where the food he serves comes from. Attorney General KENNEDY. Well, I think if he ran a restaurant, Senator, he would be covered, under (3) (ii), so I don't think it would be very difficult. Subsection (3) (ii) covers establishments where "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." What we intend to cover are hotels, motels, department stores, restaurants, variety stores and similar places. Senator ERVIN. When you say this, you put the poor man in even a worse fix. I think he is in enough of a quandry to determine whether he is covered by subsubsection (i) on lines 14 to 17 on page 14, which requires him to know whence his customers come and whither they go, and subsubsection (ii) on lines 18 to 21 on page 14, which requires him to know the original source of the food he cooks and serves, and how it came to him. Now you require him to ascertain and know whether or not his cooking and serving of ham and eggs and other food "substantially" affects the totality of interstate travel or interstate movement of goods. How would this poor fellow have a substantial effect on the totality of interstate travel and commerce by cooking and serving vegetable soup, eggs, and the like which he has obtained from local wholesalers and retailers? Attorney General KENNEDY. Senator, I think that generally a restaurant would have to feel that they are covered because a substantial Senator ERVIN. In other words, a man Attorney General KENNEDY. Could I just finish, please? Attorney General KENNEDY (continuing). Because in an establishment of that kind, the goods would ordinarily move in interstate commerce. I think they would have an effect on interstate commerce and that the establishment to which you refer would be covered, period. Senator ERVIN. I am inquiring about a fellow who operates a restaurant in my hometown. He has a small clientele and serves them country ham produced in North Carolina and eggs laid by hens in North Carolina, and a few other items which he obtains from his local store. This poor fellow is a layman who doesn't understand any of these legal intricacies upon which lawyers like you and I are unable to agree. How is that poor fellow going to know that he is substantially affecting interstate commerce when he serves ham and eggs to some stranger when he doesn't know where the stranger comes from? Attorney General KENNEDY. He doesn't have to know where he is from, Senator. He doesn't have to know where he is from. Senator ERVIN. He would have to know what the word "substantial" means. Attorney General KENNEDY. Yes. He doesn't have to know where he is from. Number 1, Senator, this poor fellow that you talk about is going to have to decide he is going to discriminate. He has got to make that decision first. Senator ERVIN. No, he has made Attorney General KENNEDY. He has decided that he wants to discriminate. Senator ERVIN. No. Attorney General KENNEDY. Then he wants to know whether he is going to get into difficulty with the law. Senator ERVIN. I doubt if you are in possession of all of the truth. That fellow goes into business for the purpose of making a living for himself and his family and not for the purpose of putting into effect social reforms which may be deemed wise by the Attorney General of the United States or anybody else. He has a perfect right to select his own customers under existing law. I can't accept your thesis this is discrimination. I think you have to make a choice between conflicting claims. Do you favor so-called equality coerced by law, or are you in favor of the freedom of the individual to use his own property and to select his own customers? I don't think all of the righteousness is on one side of that question. If I must take a choice between equality coerced by law and the preservation of individual freedoms, the right of one to use his property as he sees fit and to render service only to those whom he selects, I am going to take my stand on the side of liberty. I think in so doing I am just about as righteous as the man who stands on the other side. A man goes into the restaurant business to make a livelihood for his family. That is his sole motive and he is not an evil man merely because he claims his freedom to use his property and to select his customers in his own way. Under the public accommodations provision of this bill, he will have to ascertain where the food he cooks and the customers he serves come from. Attorney General KENNEDY. No, he doesn't, Senator. Senator ERVIN. Yes, he would. To find out whether he comes under subsection (i), he would have to find out whether the people who come into his place of business for service are to a substantial degree interstate travelers. When he makes inquiry of them as to the facts necessary to learn this, they are likely to tell him that it is none of his business. To ascertain whether or not he comes under subsection (ii), he will have to ascertain whether the food he cooks and serves has moved in interstate commerce or consists of products of communities situated within the State. In addition to this, he will have to determine whether or not he comes under subsection (iii), which appears on lines 22 to 25 on page 14. To do this, he will have to know whether as matters of fact and law his activities "substantially" affect interstate travel or interstate transportation. Since you and I as two lawyers can't agree on what the meaning of that word "substantial" is, I don't know how that poor devil would understand what it means. Attorney General KENNEDY. Senator, first, as I say, he is going to have to decide that he is going to discriminate. Now, you say that he is making his decision as to whether he is going to exercise his God-given rights. What he is going to have to decide right at the beginning before even making a determination |