# Burton v. Wilmington Parking Authority/Dissent Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinion Frankfurter
United States Supreme Court
365 U.S. 715
Burton v. Wilmington Parking Authority
Argued: Feb. 21 and 23, 1961. --- Decided: April 17, 1961
Mr. Justice FRANKFURTER, dissenting.
According to my brother STEWART, the Supreme Court of Delaware has held that one of its statutes, 24 Del.Code § 1501, sanctions a restaurateur denying service to a person solely because of his color. If my brother is correct in so reading the decision of the Delaware Supreme Court, his conclusion inevitably follows. For a State to place its authority behind discriminatory treatment based solely on color is indubitably a denial by a State of the equal protection of the laws, in violation of the Fourteenth Amendment. Mr. brother HARLAN also would find the claim of invalidity of the statute decisive if he could read the state court's construction of it as our brother STEWART reads it. But for him the state court's view of its statute is so ambiguous that he deems it necessary to secure a clarification from the state court of how in fact it did construe the statute.
I certainly do not find the clarity that my brother STEWART finds in the views expressed by the Supreme Court of Delaware regarding 24 Del.Code, § 1501. If I were forced to construe that court's construction, I should find the balance of considerations leading to the opposite conclusion from his, namely, that it was merely declaratory of the common law and did not give state sanction to refusing service to a person merely because he is colored. The Court takes no position regarding the statutory meaning which divides my brothers HARLAN and STEWART. Clearly it does not take Mr. Justice STEWART'S view of what the Supreme Court of Delaware decided. If it did, it would undoubtedly take his easy route to decision and not reach the same result by its much more circuitous route.
Since the pronouncement of the Supreme Court of Delaware thus lends itself to three views, none of which is patently irrational, why is not my brother HARLAN'S suggestion for solving this conflict the most appropriate solution? Were we to be duly advised by the Supreme Court of Delaware that Mr. Justice STEWART is correct in his reading of what it said, there would be an easy end to our problem. There would be no need for resolving the problems in state-federal relations with which the Court's opinion deals. If, on the other hand, the Delaware court did not mean to give such an invalidating construction to its statute, we would be confronted with the problems which the Court now entertains for decision, unembarrassed by disregard of a simpler issue. This would involve some delay in adjudication. But the time would be well spent, because the Court would not be deciding serious questions of constitutional law any earlier than due regard for the appropriate process of constitutional adjudication requires.
Accordingly, I join in Mr. Justice HARLAN'S proposed disposition of the case without intimating any view regarding the question, prematurely considered by the Court, as to what constitutes state action.
Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
The Court's opinion, by a process of first undiscriminatingly throwing together various factual bits and pieces and then undermining the resulting structure by an equally vague disclaimer, seems to me to leave completely at sea just what it is in this record that satisfies the requirement of 'state action.' I find it unnecessary, however, to inquire into the matter at this stage, for it seems to me apparent that before passing on the far-reaching constitutional questions that may, or may not, be lurking in this judgment, the case should first be sent back to the state court for clarification as to the precise basis of its decision. In deciding this case the Delaware Supreme Court, among other things, said:
'It (Eagle) acts as a restaurant keeper and, as such, is not required to serve any and all persons entering its place of business, any more than the operator of a bookstore, barber shop, or other retail business is required to sell its product to every one. This is the common law, and the law of Delaware as restated in 24 Del.C. § 1501 with respect to restaurant keepers. 10 Am.Jur., Civil Rights, §§ 21, 22; 52 Am.Jur., Theatres, § 9; Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845. We, accordingly, hold that the operation of its restaurant by Eagle does not fall within the scope of the prohibitions of the Fourteenth Amendment.' 157 A.2d 894, 902.
If in the context of this record this means, as my Brother STEWART suggests, that the Delaware court construed this state statute 'as authorizing discriminatory classification based exclusively on color,' I would certainly agree, without more, that the enactment is offensive to the Fourteenth Amendment. It would then be quite unnecessary to reach the much broader questions dealt with in the Court's opinion. If, on the other hand, the state court meant no more than that under the statute, as at common law, Eagle was free to serve only those whom it pleased, then, and only then, would the question of 'state action' be presented in full-blown form.
I think that sound principles of constitutional adjudication dictate that we should first ascertain the exact basis of this state judgment, and for that purpose I would either remand the case to the Delaware Supreme Court, see Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562; cf. Harrison v. N.A.A.C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, or hold the case pending application to the state court for clarification. See Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789. It seems to me both unnecessary and unwise to reach issues of such broad constitutional significance as those now decided by the Court, before the necessity for deciding them has become apparent.

## Notes

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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