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Anyway, Mr. Chairman, it is my contention, and that of Senator Cooper, and those who joined us, that when a State grants a permit to operate when a State or a subdivision certifies, through issuing a license, that a business meets the requirements of State law, and is observing the regulations and requirements of local law-that this brings the State sufficiently into the act of discrimination to place such action under the 14th amendment.

And the question as such is not covered by the Supreme Court decision of 1883.

Also, I think the argument that a public accommodations bill will be an infringement on private property and individual rights is not valid.

A store, a movie house, a motel, a restaurant, or any other such facility, in my view, is not private property in the same sense that a man's home is private property.

When I open for public business a restaurant or a motel, I think I abandon much of my right to privacy. I think I subject myself and my business to all kinds of regulations and controls. I operate under a public license, with all that implies. My public business does not stand on all fours with my private home. By no means does it stand in the same posture.

I think my property assumes a public character, a public purpose, and a public function. And, because of this, I and the employees of my establishment are not unconditionally free to do as I or they wish. I think they have certain responsibilities to meet in the exercise of the duties connected with my business, the employees do, and I have. And I think my actions and those of my employees are limited, both by the Constitution of the United States and by appropriate Federal, State, and local statutes.

For the life of me, the contention that a man who owns a movie theater has the same right to determine who shall or shall not enter as he does in the case of his private home is incredible. I don't understand how one can argue this.

I think it is important to point out here, too, that 32 States have prohibited, by legislative action or executive order, or by some other means, discrimination in public facilities, and that these various measures have not been declared unconstitutional, either.

Now, there is another argument that has been made in opposition to these public accommodation bills, an irresponsible argument-I say this, I hope, with grace to my friend. Some witnesses have stated that the law cannot be enforced without turning this Nation into a police state, and that troops would have to be withdrawn from all over the world to patrol our own streets.

And that the President's proposals have brought us to the brink of civil war.

Well, I am sure the Senator from North Carolina doesn't feel this way. I am confident he doesn't. But I think it is a sad thing that this sort of testimony should be given before our committee, or any other congressional committee.

And I point out that these statements have been made by officials who once made similar threats about the unenforcibility of school desegregation orders in their own States.

If one thing has been proven by various civil rights incidents in recent months, I think it is that the Federal law and Federal court orders will be upheld. They will be upheld with a minimum of difficulty, regardless of the efforts of some people to the contrary.

I think it is important to say this. I find it distasteful to say. But candor and duty compels me to say so.

I know there are different approaches. Different approaches have been taken by the administration, by others, and as far as I am concerned by myself and Senator Cooper and those who have joined us. As we all know, the administration premises its posture or position on the interstate commerce clause. And we premise ours on the 14th amendment.

I, of course, will support the administration bill. But I believe that our bill is a better bill. Our bill is more direct and more comprehensive. And generally I think it is more desirable.

There is no doubt, of course, as to the constitutionality of basing a public accommodations bill on the commerce clause. I don't question its constitutional situation. It is clearly within the powers of Congress to prohibit, as the administration bill would do, discrimination in business which affects interstate commerce.

As I understand the Constitution, I don't think there is any doubt about that.

But I believe, and Senator Cooper believes, that it is equally constitutional, and much more effective, and much more meaningful, to deal with discrimination directly-as a matter of equal rights and due processes rather than to attack it indirectly as a burden on interstate commerce.

But the most important distinction I think between our bill and the administration bill is that this is primarily a moral question. And this is important. It is primarily a moral question, a constitutional question, à question of rights, not of commerce or of economics.

We are concerned with insuring that all citizens have the right to equal access to goods and services and facilities held out for public use. And our bill is based on the proper situation that discrimination by businesses licensed by a State denies the privilege and immunities and protections guaranteed by the 14th amendment.

And it is stronger and more far reaching than the administration bill.

Now, finally, I would say that what we are seeking in our bill is not only a worthy goal-we seek a legislative vehicle that is worthy of that goal, we seek to guarantee these precious rights, and this guarantee, we think, should rest not on the sections of the Constitution dealing with matters of business and commerce, but upon those sections dealing with the rights of man.

For these reasons, I believe that the 14th amendment approach is more satisfactory.

It is my firm belief that the Supreme Court would find such a statute constitutional and enforciable because I hope this bill will be approved.

But I will, of course, support the administration bill.

But, Senator, I say again that I felt it was important to make this statement at this time. I am sorry I wasn't able to be here this morning.

It was reported to me what you had to say about my views, referring to what I said yesterday.

So I wanted it to be made a matter of record, and I wanted you to hear it.

Senator ERVIN. Well, I am delighted to hear the expression of your views. I would like to avail myself of this opportunity to say that you and I have worked together on many problems. You are a Senator whose devotion to his country and whose sincerity I never question. And I usually find that your views are a little sounder than they are on this particular proposition.

But I would say that the Civil Rights Act held-that inns and restaurants were involved in that. And inns have been regulated by the laws of States from the very beginning of this Nation.

And the inns involved in the interstate-I mean, in the--the inns involved in the Civil Rights cases in 1883 were regulated by the States involved there.

And furthermore, if I am correct in my date, in 1960 they had this very question presented in a case over here in the Federal court in Alexandria-a Negro sued the Howard Johnson over there for service. And the court went into all of this question-Howard Johnson was licensed. And the Circuit Court of Appeals for the Fourth Circuit held in that case that the plaintiff did not have a civil right to demand that he be served a meal by the Howard Johnson.

There is some discussion of this subject there.

And so at the present time the interpretation of the 14th amendment sustains my views rather than yours.

Senator DODD. I know. But wasn't it because in that case again, it was not shown that State action was involved?

Senator ERVIN. Well, that is where you and I part company. Judge Harlan said in order for the 14th amendment to apply, that the State had to be involved in the very discrimination.

Senator DODD. Well, isn't it?

Senator ERVIN. No. No more than when the State licenses a fellow to purchase a pistol. That is, it is no more involved in the case of denial of service in a restaurant that has been licensed than it is in a murder committed by the fellow with a pistol for which he received a license from the State to buy.

Senator DODD. Wait a minute. Let's analyze that.

I don't contend that the licensing of pistol owners or a fortune teller, makes the State responsible for every act, every misdeed, every violation of law committed by the licensee.

But I do say that within the licensing power the individual takes on the character to that extent of the State.

And I don't see how you can argue it otherwise.

For example, let's take the case of the pistol carrier.

I don't have in mind, I am not familiar with the license forms or pistol permits in the several States. But I am sure it requires that it be used for only certain purposes.

Now, if the individual exceeds the purport-no one can argue that the State is responsible, because he has exceeded, when he commits a crime, the authority transferred to him in the form of a license of the State.

As long as he conforms to the framework of the license, then he is acting with the authority of the State. I don't allege, however, that the individual who goes beyond it involves the State.

Senator ERVIN. The specific question involved is illustrated by the case where they tried to get the court to hold that the attorney for the defendant who denied a man a civil right under the civil rights statute was acting for the State, because he was licensed by the State and was an officer of the court. And the court held that the actions of the attorney for the defense, although licensed by the State, and although an officer of the court, did not represent State action, even though he was acting in the courthouse.

So, I think that answers your argument. I would like to insert two cases in the record at this time, Givens v. Moll (177 F. 2d 765), and Kenney v. Fox (232 F.2d 288).

Senator DODD. I am sorry you think so.

Anyway, thank you.

Mr. Chairman, I wanted to get this on the record.

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Charles A. Givens sued Herman H. Moll and others to set aside a judgment of a state court, for an accounting, and other relief.

The United States District Court for the Southern District of Alabama, John McDuffie, J., dismissed suit for lack of jurisdiction, and plaintiff appealed.

The Court of Appeals, Hutcheson, Circuit Judge, affirmed judgment, holding that complaint showed lack of diversity of citizenship, and failed to allege a federal question.

1. Courts 308, 317

Federal district court properly dismissed suit for want of jurisdiction on ground of diversity of citizenship where complaint did not claim or suggest requisite diversity, and named a co-citizen of state with plaintiff as a “real respondent", and named as nominal parties defendant, but in fact real parties plaintiff, plaintiff's co-claimants, who were co-citizens of state with those named by plaintiff as real defendants.

2. Courts 282.2 (1)

Charge that defendants by obtaining judgments in state court thus used state power to deprive plaintiff and co-claimants of property without due process of law did not confer original jurisdiction upon federal district court of suit to set aside a judgment of state court, and for other relief, on ground that a federal question was involved. U.S.C.A. Const. Amend. 14.

3. Courts 282.2 (25)

The claim that a judgment of state court is erroneous raises no federal question on which jurisdiction of federal courts can be based.

4. Courts 282.2(1)

Charged acts of a lawyer were not acts of a state, so that suit against lawyer for wrongs lawyer allegedly did depriving plaintiff and co-claimants of property without due process of law did not present federal question conferring original jurisdiction upon federal district court. U.S.C.A. Const. Amend. 14.

J. Terry Reynolds, Jr., Mobile, Ala., Henry C. Vosbein, New Orleans, La., for appellant.

Hugh M. Caffey, Leon G. Brooks, Brewton, Ala., for appellees.
Before HUTCHESON, MCCORD, and RUSSELL, Circuit Judges.

HUTCHESON, Circuit Judge.

Appealing from a judgment dismissing his suit for want of jurisdiction, appellant, a citizen of Florida, is here insisting that his complaint showed both the requisite diversity of citizenship and the existence of a federal question, and the judgment must be reversed.

[1] We cannot at all agree. Nowhere in the course of the lengthy complaint is the requisite diversity claimed or even suggested.1 On the contrary, the complaint, in naming as a "real respondent" W. E. Duggan, a co-citizen with plaintiff of Florida, on its face deprives the suit of the requisite diversity. In addition, it names as nominal parties defendant' but in fact real parties plaintiff, his brothers and sisters, co-heirs with him and co-claimants in the cause of action, all of whom are co-citizens of Alabama with Caffey et al., named by plaintiff as the real defendants.

When it comes to the federal question ground of jurisdiction, that the suit arises under the Constitution and laws of the United States, while it is clear that plaintiff's reliance for jurisdiction is on that ground, it is equally clear that the complaint signally fails to present such a ground. The only reference in the long complaint, with its mass of attached exhibits, to either the Federal Constitution or the statutes is the reference in paragraph 1, on page 3 of the transcript: "*** depriving your complainant of his lawful inheritance without due process of law and in violation of the Fourteenth Amendment of the Constitution of the United States, to-wit: 'Nor shall any State deprive any person of life, liberty or property, without due process of law; not deny any person within its jurisdiction the equal protection of the Laws."

Assuming, without deciding, that this generalization, if supported by pleaded facts, would be a sufficient claim of federal jurisdiction on the ground of a federal question, we find no allegation of fact whatever which shows or tends to show the existence of a federal question in this case.

Stripped of the involvements, the intricacies, the particularities, the redundancies with which the complaint abounds, what it comes down at last to is a claim that Caffey, as solicitor and advisor of the Givens Estate, aided and abetted by other defendants named and unnamed, by and with the aid of court proceedings and court judgments in Alabama,3 conceived, engineered, and carried out a scheme to defraud the James Alexander Givens Estate and plaintiff and his co-heirs, the owners thereof, and that as a result of the taking and foreclosure of mortgages and other acts and proceedings in and out of court, the defendants have wronged plaintiff and his co-heirs.

The prayer is for an accounting and for an injunction against waste, for restoration of the title to the estate of Givens, for the setting aside of the judgment of foreclosure and that a special administrator be appointed to bring about a division in kind among the rightful heirs of James Givens.

Here claiming: that Duggan is neither an indispensable nor a necessary party and instead of dismissing the complaint for his joinder, he should be dismissed from it; and keeping silent altogether about his co-heirs and co-claimants, cocitizens with the Alabama defendants, the appellant puts his main reliance on his contention that the suit involves a federal question under the 14th Amendment, and that by state action violating the due process clause, he has been deprived of his rights. In support of this contention, he urges upon us: (1) that his complaint is a charge that the defendants by obtaining judgments in the state court have thus used state power to deprive him and his co-claimants of property without due process of law; and (2) that it is a charge that some of the defendants are lawyers and, therefore, officers of the state courts, and as such they must be regarded as officers and instrumentalities of the state and their actions in deprivation of plaintiff's property as state action.

[2, 3] That there is no merit whatever in either of these contentions, the most casual examination of the authorities and a consideration of the fantastic results which would follow maintaining them, will at once make clear. If appellant were right, every case brought to judgment in a state court could be made the basis of a suit in the federal court upon the ground of a federal question by the mere allegation that the state court judgment was obtained in violation

1 Cf. 35 C.J.S., Federal Courts, § 77, p. 905; Chase Nat. Bank v. Citizens Gas Co., 314 U.S. 63, 62 S. Ct. 15, 86 L. Ed. 47; Alexander v. Hillman, 296 U.S. 222, 56 S. Ct. 204, 80 L. Ed. 192; Dawson v. Columbia Ave. Savings Fund, 197 U.S. 178, 25 S. Ct. 420, 49 L. Ed. 713.

2 The complaint, after naming as respondents heirs and coheirs with complainant of his deceased father, James Givens, proceeds: "The foregoing named respondents are so made in this cause in order to avoid delay in the bringing of this action by appearing as complainants, who, upon motion made by them to be joined as co-complainants in this cause, your complainant would embrace as conducive to complete equity."

3 Wiggins Ect. Co. v. Jeffrey, 246 Ala. 183, 19 So. 2d 769.

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