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POWELL v. UTZ

December 29, 1949

POWELL et ux.
v.
UTZ et ux.



The opinion of the court was delivered by: DRIVER

Defendants have moved to dismiss the complaint on the ground that it does not state a claim against them on which relief can be granted. The basis of this court's jurisdiction, diversity of citizenship of the parties, is sufficiently stated in the complaint. The allegations which set forth plaintiffs' claim to relief may be summarized briefly as follows:

Plaintiffs, husband and wife, are Negroes and citizens of the United States. On February 11, 1949 defendants were operating a restaurant which catered to the public, in Pasco, Washington. At about 1:30 P.M. on that day plaintiff Hazel Powell, better known as Hazel Scott, in company with another lady of the Negro race, entered the restaurant, seated herself at the lunch counter provided for the use of the customers, and requested that she and her companion be served food and drink. Defendants refused to serve them for the sole express reason that they were Negroes. The refusal was in the presence and hearing of others and it caused Mrs. Powell to supper shame, humiliation and mental distress for which plaintiffs seek recovery of damages.

 It is clear from the foregoing summary that plaintiffs have not stated a claim under the Fourteenth Amendment to the Federal Constitution. The prohibitions of that Amendment against deprivation of life, liberty or property without due process of law or denial of the equal protection of the laws, apply only to state action and the invasion of the rights of one person by another who acts as a private individual does not come within its reach. *fn1" If plaintiffs have a right of recovery it must rest upon the civil rights statute of the State of Washington, Chapter 249, Section 434, Laws of 1909, Rem.Rev.Stat Sec. 2686, which in pertinent part reads as follows: 'every person who shall deny to any other person because of race, creed or color, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement, shall be guilty of a misdemeanor.'

 Although penal in form, the foregoing statute has been held by the Washington Supreme Court to be also remedial in effect so that a person deprived of the rights which it safeguards has a civil cause of action for damages against the wrongdoer. *fn2"

 The question for determination, then, comes down to this: Is a restaurant a place of public accommodation within the meaning of the above quoted language of the Washington civil rights statute? An apposite decision of the question by the state Supreme Court would of course be binding on this court, but up to this time there has been no such decision. My task, then, is to conjecture, as best I can, what answer the state court would now give to the question, having in mind the implications of the cases in which that court has had the statute under consideration and the established principles of statutory construction by which the court would be guided.

 My attention has been called to only four cases in which the civil rights statute, in its present form, has been before the state court for consideration. The court has held in two cases, Anderson v. Pantages Theatre Co. and Randall v. Cowlitz Amusements, Inc., cited in footnote 2, that theatres are places of public amusement and hence within the scope of the statute. In each case recovery of damages by a Negro who, after purchasing a ticket had been denied full enjoyment of the facilities of a theatre solely because of his race, was upheld. In Goff v. Savage, 122 Wash. 194, 210 P. 374, however, the court held that a soda fountain and ice cream stand within a drug store was not a place of public accommodation and denied a right of recovery of damages to a person whom the proprietor refused to serve a glass of soda water for the reason that he was a Negro. The fourth case, Finnesey v. Seattle Baseball Club, 122 Wash. 276, 210 P. 679, 680, 30 A.L.R. 948, involved a baseball park. Whether such an establishment was a place of public resort or amusement was not before the court for decision as there was 'no allegation or proof that the (plaintiff's) ejection was because of race, creed, or color', but the court by way of dicta did express the view that the civil rights statute would not apply since the baseball park was a private rather than a public business. Thus the state court has taken the position that a theatre is a place of public amusement but a soda fountain is not a place of public accommodation. In Goff v. Savage the court stressed the requirement of the statute that the establishment must be a 'public' one, and reasoned that since one operating a soda fountain has the right to contract or refuse to contract with prospective customers as he sees fit, the business is private, even though the general public is invited to enter the place where the business is carried on. The court endeavored to distinguish that kind of place from one such as a theatre where the customer buys an admission ticket. I do not see any sound basis for the distinction. A theatre owner, as well as a soda fountain operator, has the right to select his patrons on a proper individual basis and may decline to serve those who are personally objectionable because of uncleanliness, disorderly conduct and the like. The only difference is that as to the theatre the selection is made at the entrance to the establishment whereas in the case of the soda fountain it is exercised after the patron has entered. The civil rights statute does not curtail the right to reject patrons on an individual basis since it applies only where the refusal to serve is because of race, creed or color.

 Moreover, in the Pantages Theatre case the court was called upon to consider the effect of the circumstance that plaintiff Anderson had purchased and was the holder of an admission ticket at the time of his ejection. The contention was made that since Anderson had an admission ticket his action was based upon breach of contract and his recovery should be limited accordingly. It was held, however, that the action was grounded in tort. The court said that the purchase of the admission ticket was immaterial and that Anderson's right of action would not have been affected if he had applied for the purchase of a ticket at the theatre entrance and had been refused. *fn3"

 Anderson v. Pantages was decided in January, 1921 and Goff v. Savage, November, 1922, was a later expression of the court, it is true. However, in March, 1938, in Randall v. Cowlitz Amusements, Inc., cited in footnote 2, without any mention of Goff v. Savage and without qualification or limitation the court followed Anderson v. Pantages.

 Since the decisions of the Washington Supreme Court are not conclusive on the issue under consideration, resort must be had to the civil rights statute to determine whether it was the legislative intent to include within its reach a restaurant open to the general public. In doing so I have in mind that since it is in derogation of the common law and is penal in character the statute should be strictly construed. *fn4" However, while strict construction does not permit the extension of the import of the words of a statute by implication or for equitable considerations and confines its operation to cases clearly within the letter as well as the spirit of the law, it does not mean that its words shall be given their narrowest possible meaning. On the contrary, the words employed should be given their full, fair and sensible meaning in accord with the legislative intent. *fn5"

 What, then, is the full, fair and sensible meaning of the words 'public accommodation' in the Washington civil rights statute? According to Webster's dictionary, accommodation means 'Whatever supplies a want or affords ease, refreshment, or convenience; anything furnished which is desired or needful; often in plural; as, the accommodations- that is, lodgings and food- at an inn.' The same authority has this to say of the meaning of the word 'public': 'Open to common or general use; specific.: a. Open to the use of the public in general for any purpose, as business, pleasure, religious worship, gratification of curiosity, etc. b. Open to the enjoyment of the public under the rights and liabilities belonging to an action, occupation, use, or the like, called public, as a public carriage, a public house, etc.'

 According to the foregoing dictionary definitions, 'public accommodation' clearly includes a restaurant open to the general public. That meaning appears to be in accord with the legislative intent as to the scope of the statute. It may be assumed that the legislature had some purpose in mind when it included in the act the words 'public accommodation.' If it had intended to limit the operation of the law to places of public amusement or resort where tickets of admission are sold, it could easily have so provided in plain words. If the statute were to be construed to exclude any business establishment where at common law and in absence of statutory restrictions the proprietor has the right to govern the terms of his dealings with patrons by private contract, then no privately owned and operated place of business would be included, and the civil rights statute would be a farce and a sham. Manifestly, the legislature did not intend to limit the reach of the act to government owned and operated establishments.

 In the construction of a statute which repeals a former act or contains a revision or codification of an earlier law, resort may be had to the repealed or superseded statute to aid in the discovery of the legislative intent. *fn6"

 The first Washington legislature, after admission to statehood, enacted a civil rights act, Laws of 1889-90, Chap. XVI Miscellaneous, p. 524. It was in two sections. The first granted to all persons 'full and equal enjoyment of the public accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusement and restaurants, subject only to the conditions and limitations established by law and applicable alike to all citizens of whatever race, color or nationality.' The second section of the law provided penalties for denial of the rights granted in the first section. In 1895 Section 1 was amended, Laws of 1895, Chap. XCIX, p. 192, to read as follows: 'all persons within the jurisdiction of the State of Washington shall be entitled to the full and equal enjoyment of the public accommodations and advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theaters and other places of public accommodation and amusement; subject only to the condition and limitations established by law and applicable alike to all citizens.'

 The 1895 Amendment, it should be noted, introduced a new term in the general designation of 'other places,' namely, 'public accommodation.' Also it is significant that, following the enumeration of particular establishments, among which were 'restaurants, 'eating houses' and 'theatres', the legislature used the language 'and other places of public accommodation and amusement,' ...


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