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the public, and the court held that though
this was a private proprietor, the more he
opened it up to the public the more the
14th Amendment protections applied. The
court held that, therefore, if that private
property opened up and dedicated to a pub-
lic use was open to the general public, then
that private proprietor could not refuse to
serve any member of the general public
because of that member's race. So here is
an element where you had a private owner-
ship, but the service that was offered was
offered to the public.
However, in Belle v. Maryland, in a de-
cision concurred in by Chief Justice Warren,
Justice Goldberg and Justice Douglas, there
is this statement which came down in 1964:
"Prejudice and bigotry in any form are
regrettable, but it is the constitutional
right of every person to close his home or
private club to any person or to choose his
social intimates and business partners is
solely on the basis of personal prejudices,
including race. These and other rights per-
taining to privacy and private association
are themselves constitutionally protected
liberties/'
"We deal here," and then he was talking
about the restaurant, "however, with the
claim of equal access to public accommoda-
tions. This is not a claim which significantly
impinges upon personal association inter-
ests. The proprietor's interests in private
or unrestricted association is light. The re-
lationship between the modern innkeeper or
restaurant owner and the customer is rela-
tively impersonal and evanescent." Then
it says, "The history and purpose of the
14th Amendment compel the conclusion
that when the proprietor opened up his
private property to the general public, then
the State could not enforce his personal
discrimination, because it was a balancing
of the interests, and the proprietor could
not deny to a substantial section of the
public the equal protection of the laws
which the 13th and 14th and 15th Amend-
ments to the Federal Constitution had al-
ready indicated."
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOSTETTER: At the con-
clusion of your minority report, Delegate
Mitchell, you set forth a basic policy where-
in you list a number of items.
One of the items listed is licensees. A
point of clarification. Are lawyers consid-
ered as licensees and as such operating
under the authority of the State?
THE CHAIRMAN: Delegate Mitchell.
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DELEGATE MITCHELL: There has not
been a case brought to the Supreme Court
in that area, Delegate Hostetter. I would
say that when the Supreme Court has in-
terpreted what is state action, the determi-
nation evolved upon the circumstances of
each case, but I am sure members of the
general public who would want a lawyer's
services would not go to a lawyer who did
not want to represent them.
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOST.ETTER: Would a
corporate charter fall within the scope of
this amendment of the minority?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: In the Belle
Case, the Supreme Court, in the concurring
opinions of Justices Goldberg, Warren and
Douglas, appended a list of the private
proprietors in these public accommodations
who had discriminated. In only one case was
there a purely private and non-corporate
proprietor of a public accommodation. All
the rest of the cases that had flooded into
the Court after the student movement of
1960 to open up were places of public ac-
commodation, all corporations, like the Hot
Shoppes, the various restaurant chains and
the ten cent stores. I would say it depends
upon the facts and circumstances of the
case as to whether corporate charter is
involved.
If the corporation performs a service to
the general public and intends to profit
from the general public, and if it in fact
admits members of the general public who
are white but excludes Negro citizens or
Jewish citizens, or Polish citizens or Indians
or what not, then, that action would fall
under protection of the 14th Amendment.
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOSTETTER: But you do
mean discrimination by the State or state
action to include licensees ?
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Licensees who
perform public functions, as I have said,
who open up their activities to the general
public, and admit to their facilities mem-
bers of the general public, but exclude a
minority because of race, religion or na-
tional origin.
THE CHAIRMAN: Delegate Hostetter.
DELEGATE HOSTETTER: I was look-
ing at the sections from other constitutions
at the end of the minority report here.
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