# Daniel v. Paul/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinion Black
United States Supreme Court
395 U.S. 298
Doris DANIEL and Rosalyn Kyles, Petitioners, v. Euell PAUL, Jr., etc.
Argued: March 24, 25, 1969. --- Decided: June 2, 1969
Mr. Justice BLACK, dissenting.
I could and would agree with the Court's holding in this case had Congress in the 1964 Civil Rights Act based its power to bar racial discrimination at places of public accommodations upon § 5 of the Fourteenth Amendment. But Congress in enacting this legislation did not choose to invoke this broad Fourteenth Amendment power to protect against racial discrimination; instead it tied the Act and limited its protection to congressional power to regulate commerce among the States. Both courts below found that respondent's swimming and recreational place is covered by the Act if its operations 'affect commerce' within the meaning of § 201(c) of the Act. The Act itself, in § 201(c), provides the test for determining whether this respondent's recreational operations adversely affect interstate commerce. That test is to determine from evidence whether the operation of an establishment like respondent's (a) 'serves or offers to serve interstate travelers' or (b) 'a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce * * *.' In order, therefore, for the Act to be held to apply the test must be shown to be met by evidence and judicial findings, not by guesswork, or assumptions, or 'judicial knowledge' of crucially relevant facts, or by unproved probabilities or possibilities. My trouble with the Court's holding is that it runs roughshod over District Court findings supported by the record and emphatically affirmed by the Court of Appeal. Net us briefly review the facts and findings on the foregoing two separate conditions of the Act's applicability.
(A) Did Lake Nixon serve or offer to serve interstate travelers? There is not a word of evidence showing that such an interstate traveler was ever there or ever invited there or ever dreamed of going there. Nixon Lake can be reached only by country roads. The record fails to show whether these country roads are passable in all kinds of weather. They seem to be at least six to eight miles off the state or interstate roads over which interstate travelers are accustomed to travel. Petitioners did not offer evidence to show whether Lake Nixon is a natural lake, or whether it is simply a small body of water obtained by building a dam across a little creek in a narrow hollow between the hills. The District Court made findings about Lake Nixon and Spring Lake as follows:
'Both are accessible by country roads; neither is located on or near a State or federal highway. There is no evidence that either facility has ever tried to attract interstate travelers as such, and the location of the facilities is such that it would be in the highest degree unlikely that an interstate traveler would break his trip for the purpose of utilizing either establishment.' 263 F.Supp. 412, 418.
The foregoing finding is not impaired by this additional statement of the District Judge:
'Of course, it is probably true that some out-of-State people spending time in or around Little Rock have utilized one or both facilities.' Ibid.
In the first place the court's statement that 'it is probably true' takes this out of the category of a finding of fact; and secondly, 'out-of-State people spending time in or around Little Rock' who happened to visit Lake Nixon would certainly not be the kind of 'interstate travelers' doing the kind of interstate traveling that would 'affect' interstate commerce.
The Court of Appeals, affirming the findings of the District Court, said:
'There is no evidence that any interstate traveler ever patronized this facility, or that it offered to serve interstate travelers * * *.' 395 F.2d 118, 127.
This Court rejects these joint findings of the two courts below in this way. Referring to advertisements of Lake Nixon in a monthly magazine distributed at Little Rock hotels, motels, and restaurants, to radio announcements, and to advertisements in the 'Little Rock Air Force Base,' this Court says:
'Thus, the Lake Nixon Club unquestionably offered to serve out-of-state visitors to the Little Rock area. And it would be unrealistic to assume that none of the 100,000 patrons actually served by the Club each season was an interstate traveler.'
In the above statement this Court jumps from the fact that there were an estimated number of admissions onto the club premises during a season to the conclusion that some one or more of these was an 'interstate traveler' and that the owners of the premises, Mr. and Mrs. Paul, were bound to know that there were interstate travelers present. That conclusion is far too speculative to be used as a means of rejecting the solemn findings of the two courts below. If the facts here are to be left to such 'iffy' conjectures, one familiar with country life and traveling would, it seems to me, far more likely conclude that travelers on interstate journeys would stick to their interstate highways, and not go miles off them by way of what, for all this record shows, may wl l be dusty, unpaved, 'country' roads to go to a purely local swimming hole where the only food they could buy was hamburgers, hot dogs, milk, and soft drinks (but not beer). This is certainly not the pattern of interstate movements I would expect interstate travelers in search of tourist attractions to follow.
(B) The second prong of the test to determine applicability of the Act to Lake Nixon is whether a 'substantial portion' of the hamburgers, milk, and soda pop sold there had previously moved in interstate commerce. The Court's opinion generously concedes that the record is 'not as complete on this point as might be desired * * *.' This is certainly no exaggeration. In fact, I would go further and agree with the two courts below that the record is totally devoid of evidence to show that a 'substantial portion' of the small amount of food sold had previously moved in interstate commerce. The District Court found as follows on this point:
'Food and soft drinks are purchased locally by both establishments. The record before the Court does not disclose where or how the local suppliers obtained the products which they sold to the establishments. The meat products sold by defendants may or may not have come from animals raised, slaughtered, and processed in Arkansas. The bread used by defendants was baked and packaged locally, but judicial notice may be taken of the fact that the principal ingredients going into the bread were produced and processed in other States. The soft drinks were bottled locally, but certain ingredients were probably obtained by the bottlers from out-of-State sources.' 263 F.Supp., at 418.
Fact-findings on serious problems like this one, which involves marking the jurisdictional authority of State and Nation, should not be made on the basis of 'judicial notice' and on probabilities not based on evidence. The Court of Appeals approved this finding of the District Court that a substantial part of the food served at Lake Nixon had not previously moved in interstate commerce. The Court of Appeals said:
'With regard to whether a substantial portion of the food which Lake Nixon serves has moved in commerce, the trial court found that food and soft drinks were purchased locally by the Club but noted that the record before the court did not disclose where or how the local suppliers obtained the products. The court further observed that the meat products sold by the defendants may or may not have come from animals raised, slaughtered, and processed in Arkansas. It also made an observation that the bread used in the sandwiches was baked and packaged locally but took judicial notice that the principal ingredients going into the bread were produced and processed in other states. This observation on the part of the court, however, was entirely voluntary, and the ingredients in the bread would not constitute a substantial part of the food served. We might add that it is a matter of common knowledge that Borden's of Arkansas which the record shows supplied the milk, obtains the unprocessed milk for its local plant from Arkansas dairy farmers.' 395 F.2d, at 124.
Finally, the Court mentions, almost as an afterthought, Lake Nixon's 15 paddle boats leased from an Oklahoma company on a royalty basis. As to these paddle boats the Court of Appeals said: 'It is common knowledge that annually thousands of this type boat are manufactured locally in Arkansas, and there is no evidence whatsoever that any of the equipment moved in interstate commerce.' 395 F.2d, at 125.
The Court's opinion also mentions a juke box leased by Lake Nixon from the juke box's local owner. The Court apparently refers to this juke box on the premise that playing music and dancing makes an establishment the kind of place of 'entertainment' that is covered by 201(b)(3) of the Act. The Court of Appeals pointed out that Senator Magnuson, floor manager of this part of the Act, said that dance studios would be exempt under the Act. 110 Cong.Rec. 7406. Also, Senator Humphrey, a leading proponent of the measure, said:
'The deletion of the coverage of retail establishments generally is illustrative of the moderate nature of this bill and of its intent to deal only with the problems which urgently require solution.' 110 Cong.Rec. 6533.
See also Miller v. Amusement Enterprises, Inc., 5 Cir., 394 F.2d 342.
It seems clear to me that neither the paddle boats nor the locally leased juke box is sufficient to justify a holding that the operation of Lake Nixon affects interstate commerce within the meaning of the Act. While it is the duty of courts to enforce this important Act, we are not called on to hold nor should we hold subject to that Act this country people's recreation center, lying in what may be, so far as we know, a little 'sleepy hollow' between Arkansas hills miles away from any interstate highway. This would be stretching the Commerce Clause so as to give the Federal Government complete control over every little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States. This goes too far for me. I would affirm the judgments of the two courts below.

## Notes

* ↑ 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.' U.S.Const., Amdt. XIV, § 5. See concurring opinion of Mr. Justice Clark, which I joined, in United States v. Guest, 383 U.S. 745, 761, 86 S.Ct. 1170, 1180, 16 L.Ed.2d 239.
* ↑ The District Court held hearings and made findings concerning Lake Nixon and another establishment, Spring Lake, in a single trial. No appeal was taken from the District Court's decision holding that Spring Lake was not covered by the Act.
* ↑ In fact, Mr. Paul testified under oath that no interstate travelers were members of the 'club,' that they had not invited any to join, and that as far as he knew, none had ever used the premises.
* ↑ '(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action:
* ↑ In my opinion in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 268, 85 S.Ct. 348, 363, 13 L.Ed.2d 258, which also applies to Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290, concurring in the Court's decision upholding the application of this Act to an Atlanta, Georgia, motel and a Birmingham, Alabama, restaurant, I said:
'I recognize that every remote, possible, speculative effect on commerce should not be accepted as an adequate constitutional ground to uproot and throw into the discard all our traditional distinctions between what is purely local, and therefore controlled by state laws, and what affects the national interest and is therefore subject to control by federal laws. I recognize too that some isolated and remote lunchroom which sells only to local people and buys almost all its supplies in the locality may possibly be beyond the reach of the power of Congress to regulate commerce, just as such an establishment is not covered by the present Act.' 379 U.S., at 275, 85 S.Ct. at 367.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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