Bouie v. City of Columbia, 378 U.S. 347 (1964)

MR. JUSTICE BLACK, with whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join, dissenting.

This case arose out of a "sit-in" demonstration which took place at Eckerd’s Drug Store in Columbia, South Carolina. The petitioners, two Negro college students, went to the store, took seats in a booth in the restaurant department, and waited to be served. The store’s policy was to sell to Negroes as well as whites in all departments except the restaurant. After petitioners sat down, a store employee put up a chain with a "no trespassing" sign attached. Petitioners nevertheless continued to sit quietly in the booth. The store manager then called the city police department and asked the police to come and remove petitioners. After the police arrived at the store, the manager twice asked petitioners to leave. They did not do so. The Chief of Police then twice asked them to leave. When they again refused, he arrested them both. They were charged with criminal trespass in violation of § 16-386 of the South Carolina Code,{1} tried in Recorder’s Court, and found guilty.{2} On appeal, the County Court, in an unreported opinion, affirmed the convictions. Petitioners then appealed to the Supreme Court of South Carolina, which likewise affirmed over petitioners’ objections that, by convicting them, the State was denying them due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment. 239 S.C. 570, 124 S.E.2d 332. This Court granted certiorari to consider these questions. 374 U.S. 805.

It is not contradicted that the store manager denied petitioners service and asked them to leave only because of the store’s acknowledged policy of not serving Negroes in its restaurant. Apart from the fact that they remained in the restaurant after having been ordered to leave, petitioners’ conduct while there was peaceful and orderly. They simply claimed that they had a right to be served; the manager insisted, as the State now insists, that he had a legal right to choose his own customers and to have petitioners removed from the restaurant after they refused to leave at his request. We have stated today in Bell v. Maryland, 378 U.S. 318, our belief that the Fourteenth Amendment does not, of its own force, compel a restaurant owner to accept customers he does not want to serve, even though his reason for refusing to serve them may be his racial prejudice, adherence to local custom, or what he conceives to be his economic self-interest, and that the arrest and conviction of a person for trespassing in a restaurant under such circumstances is not the kind of "state action" forbidden by the Fourteenth Amendment. Here, as in the Bell case, there was, so far as has been pointed out to us, no city ordinance, official utterance, or state law of any kind tending to prevent Eckerd’s from serving these petitioners had it chosen to do so. Compare Robinson v. Florida, 378 U.S. 153; Lombard v. Louisiana, 373 U.S. 267; Peterson v. City of Greenville, 373 U.S. 244. On the first question here raised, therefore, our opinion in Bell v. Maryland is, for us, controlling.

Petitioners also contend that they were denied due process of law either because their conviction under the trespass statute was based on no evidence to support the charge, cf. Thompson v. City of Louisville, 362 U.S. 199, or because that statute as applied was so vague and indefinite that it failed to furnish fair warning that it prohibited a person who entered the property of another without notice not to do so from remaining after being asked to leave, cf. Edwards v. South Carolina, 372 U.S. 229; Cantwell v. Connecticut, 310 U.S. 296; Lanzetta v. New Jersey, 306 U.S. 451. Under the State Supreme Court’s construction of the statute, it is clear that there was evidence to support the conviction. There remains to be considered, therefore, only the vagueness contention, which rests on the argument that, since the statutory language forbids only "entry upon the lands of another . . . after notice . . . prohibiting such entry," the statute cannot fairly be construed as prohibiting a person from remaining on property after notice to leave. We voted to sustain a Maryland trespass statute{3} against an identical challenge in Bell v. Maryland, supra. While there is some difference in the language of the South Carolina and Maryland statutes -- the Maryland statute prohibited entering or crossing over the lands of another after notice not to do so, while South Carolina’s statute speaks only of entry, and not of crossing over -- this distinction has no relevance to the statute’s prohibition against remaining after being asked to leave. In holding that the South Carolina statute forbids remaining after having been asked to leave as well as entry after notice not to do so, the South Carolina courts relied in part on the fact that it has long been accepted as the common law of that State that a person who enters upon the property of another by invitation becomes a trespasser if he refuses to leave when asked to do so. See, e.g., Shramek v. Walker, 152 S.C. 88, 149 S.E. 331 (1929); State v. Williams, 76 S.C. 135, 142, 56 S.E. 783, 785 (1907); State v. Lazarus, 1 Mill Const. 34 (1817). We cannot believe that either the petitioners{4} or anyone else could have been misled by the language of this statute into believing that it would permit them to stay on the property of another over the owner’s protest without being guilty of trespass.

We would affirm.

1. Section 16-386, Code of Laws of South Carolina, 1952 (1960 Supp.), provides:

Entry on lands of another after notice prohibiting same. Every entry upon the lands of another where any horse, mule, cow, hog or any other livestock is pastured, or any other lands of another, after notice from the owner or tenant prohibiting such entry, shall be a misdemeanor and be punished by a fine not to to exceed one hundred dollars, or by imprisonment with hard labor on the public works of the county for not exceeding thirty days. When any owner or tenant of any lands shall post a notice in four conspicuous places on the borders of such land prohibiting entry thereon, a proof of the posting shall be deemed and taken as notice conclusive against the person making entry as aforesaid for the purpose of trespassing.

2. Both petitioners were also charged with breach of the peace in violation of § 15-909, Code of Laws of South Carolina, 1952, but were not convicted. Petitioner Bouie in addition was charged with and convicted of resisting arrest; that conviction was affirmed by the County Court, but reversed by the State Supreme Court for insufficiency of evidence.

3. Md.Code, Art. 27, § 577.

4. The petitioners testified that they had agreed the day before to "sit in" at the drugstore restaurant. One petitioner said that he had intended to be arrested; the other said that he had the same purpose "if it took that."