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However, as the second example I want to mention will illustrate, it isn't only Congress which has been inconsistent. The executive branch has produced some equally bewildering examples of inconsistency, such as the regulations issued by the Administrator of the Area Redevelopment Agency. These regulations do require that housing and related facilities financed under the act be made available on a nondiscriminatory basis. The regulations, however, specifically exempt from this requirement “transient or hotel facilities or parts thereof which are intended for occupancy for a period of less than 30 days."

I have carefully studied the statutes applicable to such grants and find nothing which suggests any such distinction. This is not an insignificant matter since one-fourth of all the loans under the Area Redevelopment Agency have gone into the construction of public accommodations, such as hotels and motels, but the Administrator still refuses to apply a nondiscrimination standard to this program, even though he has done so for residential construction.

The President in his first civil rights message to Congress early this year indicated that “legalistic evasions" designed to thwart civil rights would not be tolerated. I agree with this statement and would add that neither can we tolerate legislative or executive evasions of the issues confronting us. What is involved here fundamentally is the question of whether we are going to enforce all the provisions of the Constitution. In my judgment the commands of the Constitution have a firm moral as well as legal foundation and cannot be ignored I am confident that a majority of the Congress is ready to fulfill its responsibilities and whatever is necessary must be done to make certain that Congress is not denied that privilege and opportunity.

(Whereupon, at 12 o'clock noon, the committee recessed, to reconvene at 10.30 a.m., July 17, 1963.)




Washington, D.C. The committee met, pursuant to recess, at 10:40 o'clock_a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Johnston, Ervin, Dodd, Hart, Kennedy, Hruska, and Keating.

Also present: Joseph A. Davis, Chief Clerk; L. P. B. Lipscomb, and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.
Senator Ervin, proceed.



Senator Ervin. Mr. Chairman, yesterday I was asked a question by the able and distinguished senior Senator from Connecticut, Mr. Dodd, as to why a State could not be held responsible under the 14th amendment for the acts of persons operating so-called public accommodations under laws which required them to pay a State license tax.

The answer to that question is given in many decisions of the Supreme Court, and particularly in the Civil Rights cases of 1883.

The CHAIRMAN. Just a minute. I am not going to permit pictures to be taken while the witness is testifying. You may take them before or after he testifies.

Senator Ervin. On page 13 of the Civil Rights cases of 1883, Judge Bradley says this:

And so in the present case, until some State law has been passed, or some State action, through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the 14th amendment, no legislation of the United States under said amendment nor any proceedings under such legislation can be called into activity for the prohibitions of the amendment are against State laws and acts done under state authority.

A man is not acting under State authority when he has to pay a license fee for conducting his business. As for example, in North Carolina a gypsy's engaging in fortune telling.

On page 18 of the same opinion, Judge Bradley answers that question a second time. He states:

This abrogation and denial of rights, for which the States alone were or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for,



the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Senator JOHNSTON. In other words, you could no more hold them for these acts than you could for adultery or murder or anything else, hold a State for it. That is what it means, does it not?

Senator ERVIN. Yes, sir.

And, again, on page 23 Judge Bradley answers that question a third time:

Under the 14th, as we have already shown, itthat is, the legislation of Congressmust necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings.

And then a very fine answer to Senator Dodd's question is also to be found in the opinion of Justice Harlan in the case of Peterson v. the City of Greenville, which was handed down on May 20 of this year. He says:

The ultimate substantive question is whether there has been “State action of a particular character" (Civil Rights cases, supra at 11), whether the character of the State's involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.

In other words, the 14th amendment only applies if the State itself is responsible for the discrimination.

The State says to a citizen, "You must pay a license to engage in certain businesses, but when you engage in those businesses you may use your property as you see fit and select your customers as you see fit.” If that individual practices what is popularly called discrimination, the State is not involved in that discrimination any more than would be the State involved in a murder if the State granted a man a license to buy a revolver and he goes out and shoots somebody.

Senator HRUSKA. Would the Senator yield?
Senator ERVIN. Yes.

Senator HRUSKA. Since the Senator's testimony yesterday, it was suggested to me that if the license fees are construed as taxes, which I understand you say they are

Senator ERVIN. Yes. Senator HRUSKA. That everything in the State would be the result of State action, because a man cannot own a home or a business building nor even a farm without paying taxes. Senator ERVIN. Yes.

Senator HRUSKA. On that basis, it was suggested to me that if that proposition is correct, then everything would be the result of State action, and, therefore, subject for Federal legislation.

Is there any validity to that argument that was advanced to me?

Senator Ervin. That argument would be sound if the theory of this bill were sound. I have prepared a list of all the people who have to pay a license tax under the law of North Carolina, which I would like to have printed in full in the record. And it shows how absurd that theory is.

Senator HRUSKA. Of course, my question was directed to whether regular taxes could not be construed in that same fashion-inasmuch as the purpose of these license fees is to yield revenue.

Senator ERVIN. If the fantastic theory of the State being responsible for the action of all people who pay license taxes were adopted, it would apply to all forms of taxation. Then the Federal Government could regulate everything that goes on in the average dwelling house throughout the United States, because people have to pay taxes on their homes.

The Federal Government could regulate everything that goes on on all farms and in every privately owned forest in the United States. In North Carolina, Congress could regulate outdoor theaters, amusement parks, vaudeville shows, wild West shows, dog shows, pony shows, circuses, menageries, and carnival companies. It could regulate how attorneys at law should practice their profession, and how doctors should practice their profession. It could regulate the practice of veterinarians, surgeons, osteopaths, chiropractors, chiropodists, dentists, oculists, optometrists, and all people professing the healing art for fee or reward.

There is only one exception to that. If a person relies on prayer to heal in North Carolina, he doesn't have to pay a license tax. He is almost the only person who can do anything in North Carolina without paying a license tax according to our Revenue Code. And I suppose that this exception was in anticipation of the fact that praying would be decided to be somewhat unconstitutional and illegal, and, therefore, should not be sanctioned by a State tax.

Licenses are required of engineers, land surveyors, architects, landscape architects, photographers, canvassers for photographers, agents of photographers, members of partnerships, corporations engaged in real estate business, public accountants, morticians, embalmers, bondsmen, detectives, people conducting real estate auction sales, coal and coke dealers, collection agents, undertakers and retail dealers in coffins, horse traders, mule traders, phrenologists, itinerant photographers, agents and employees of itinerant photographers, bicycle dealers, pawnbrokers, people who sell cash registers or adding machines or typewriters or refrigerating or washing machines or coal stokers or vacuum cleaners or sewing machines, peddlers of spices or flavoring extracts or toilet articles or soaps or insecticides or proprietary medicines, peddlers of fruits, vegetables, and products of the farm, unless they are grown by them, contractors and construction companies, people who install elevators and automatic sprinkler systems, people who repair and service elevators, mercantile agencies, and gypsy fortunetellers.

It would be strange to say that a gypsy fortuneteller is exercising a public function and is an agent of the State.

Also included are lightning rod agents, hotels, tourist homes, and

Notice especially that Mrs. Murphy would have to pay a license tax in North Carolina to operate her tourist home.

And, while I am on that point, I would like to put in the record some extracts from the case of Purdy v. Moise, a case originating in Sumter, S.C., which was reported in 75 Southeastern Reporter, second series, at page 605. This case involved the question whether a person could build a tourist court or a motor court in an area which was zoned for hotels.

tourist camps.

The court held in that case that the words “tourist court or motor court” was included by the word "hotel." I have not found any

decision anywhere in the United States to the contrary.

So, under this decision, if Mrs. Murphy ran a tourist home or tourist court or motor court, she would be included within the meaning of the word "hotel" as used in this act.

And, at the same time, I would like to put in the record at this point an extract from the decision of the Supreme Judicial Court of Maine, Camp Walden v. Johnson, reported in 163 Atlantic Reporter, second series, at page 356, which defines a tourist home as a residence in which temporary guests are received for the purpose of a temporary


(The extracts referred to are as follows:)


((S.C.–1953) 75 S.E. 2d 605) "In determining the first question, we are confronted with a dearth of decisions on the subject by reason of the fact that 'motor courts' or 'tourist courts' are relatively modern terms not found in the law dictionaries but used to denominate such institutions or places of business herein described and exist by reason of the demand by the transient public, who utilize the automobile principally as a means of transportation and therefore have need for convenient, temporary lodging."

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"It is argued by appellants that under the generally accepted meaning of the words 'tourist court' and 'motor court' one could not have under consideration a hotel. The generally accepted meaning of words used in statutes or ordinances are to be accepted unless such words have a well recognized meaning in law; if so, they are presumed to have been used in that sense, Coakley v. Tidewater Construction Corp., 194 S.C. 284, 9 S.E. 2d 724; Powers v. Fidelity & Deposit Co. of Maryland, 180 S.C. 501, 186 S.E. 523. The word 'hotel does have a well recognized meaning in law which under its terms are such as to encompass that of 'tourist court' or 'motor court.' The services rendered to the public may be of wide variances but such variances are in the method of quality rather than the character of such services."


((1960_Maine) 163 A. 2d 356) "Does the term 'tourist camp' have a common and accepted meaning among people of this state? It undoubtedly has such a meaning. The state of Maine with its varied scenery and recreational facilities has for many years attracted tourists from all parts of the country. The increase in automobile transportation and the improvement of our highways has made our lakes, seashore, and countryside more accessible not only to our own citizens but also to myriads of visitors from other states. Many enterprising citizens, recognizing the require ment of living or housing accommodations on the part of those temporarily away from home, have found it profitable to construct so-called camps or cabins to provide such accommodations. Structures of this type were erected in many parts of the state, some more elaborate than others. Some owners provided but one cabin or camp, others provided many. The main purpose of these camps or cabins is to provide temporary sleeping or housing accommodations, and any other service rendered to the guest is merely incidental thereto. The terms 'tourist camp,' 'tourist cabin,' 'overnight camp,' and 'overnight cabin' have been interchangeably used by the public as the accepted designation of the type of building used for such a purpose. A group of such buildings is generally spoken of as a 'tourist camp. Likewise, a residence in which temporary guests are received for the same purpose is commonly known as a “tourist home."

Senator ERVIN. I will go back to the people who are covered by the North Carolina license tax law.

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