STATE v. JOHN THOMAS AVENT; STATE v. LACY CARROLE STREETER; STATE v. FRANK McGILL COLEMAN; STATE v. SHIRLEY MAE BROWN; STATE v. DONOVAN PHILLIPS; STATE v. CALLIS NAPOLIS BROWN; and STATE v. JOAN HARRIS NELSON, 262 N.C. 425

PARKER, J. In Peterson v. Greenville, 373 U.S. 244, 10 L. Ed. 2d 323, ten defendants were convicted in the recorder’s court of the city of Greenville, South Carolina, for violating the trespass statute of that State. Each defendant was convicted and sentenced to pay a fine of $100, or in lieu thereof to be confined in jail for 30 days. An appeal to the Greenville county court was dismissed, and the Supreme Court of South Carolina affirmed. 239 S.C. 298, 122 S.E. 2d 826. The Supreme Court of the United States granted certiorari. 370 U.S. 935, 8 L. Ed. 2d 806.

The facts were: The ten defendants, who are Negoes, on 9 August 1960 entered S. H. Kress store in Greenville and seated themselves at the lunch counter for the purpose, as they testified, of being served. The manager of the store did not request the police to arrest defendants; he asked them to leave because integrated service was “contrary to local customs” of segregation at lunch counters and in violation of a Greenville city ordinance requiring separation of the white persons and colored persons in restaurants, hotels, cafes, eating houses, boarding houses, or similar establishments.

Defendants refused to leave and were arrested. Chief Justice Warren in an opinion expressing the views of eight members of the Court that the convictions cannot stand said: “For the convictions had the effect, which the State cannot deny, of enforcing the ordinance passed by the City of Greenville, the agency of the State.

When a state agency passes a law compelling persons to discriminate against other persons because of race, and the State’s criminal processes are employed in a way which enforces the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators.” In Patterson v. Alabama, 294 U.S. 600, 79 L.

Ed. 1082, the Court held: “The Supreme Court may, in recognizing a change in fact or law since the entry of judgment which affects the just disposition of the case, set aside the judgment and remand the case so that the state court may be free to act, although such change affects a non-Federal question.” When the Avent case was argued before us at the Fall Term 1960, there was nothing in'the record, or in the briefs of counsel, or in the oral argument, to show, or even to suggest, that the city of Durham had an ordinance requiring separation of the white and colored races in licensed restaurants and public eating places.

The first mention of the fact in the records of this case that the city of Durham did have such an ordinance appears on page 21 of petitioners’ brief filed in the Supreme Court of the United States at the October Term 1962. In a note on page 21 of this brief it is stated: “The state did not rely on the ordinance at trial, nor was it adverted to on appeal.” Mr. Justice Harlan, concurring in the result in No. 71, and dissenting in whole or in

part in Nos. 58, 66, 11, and 67, in the Peterson v. Greenville case, said this in respect to the Avent case (No. 11): “In this case it turns out that the City of Durham, North Carolina, where these 'sit-ins’ took place, also had a restaurant segregation ordinance. In affirming these convictions the North Carolina Supreme Court evidently proceeded, however, on the erroneous assumption that no such ordinance existed. 253 N.C. 580, 118 S.E. 2d 47. “In these circumstances I agree with the Court that the case should be returned to the State Supreme Court for further consideration. See Patterson v.

Alabama, 294 U.S. 600, 79 L. Ed. 1082, 55 S. Ct. 575. But disagreeing as I do with the premises on which the case will go back under the majority’s opinion in Peterson, 1 must to that extent dissent from the opinion and judgment of the Court.” He attached a footnote to the Avent case as follows: “Code of Durham (1947), c. 13, § 42: ‘In all licensed restaurants, public eating places and “weenie shops” where persons of the white and colored races are permitted to be served with, and eat food, and are allowed to congregate, there shall be provided separate rooms for the separate accommodation of each race.

The partition between such rooms shall be constructed of wood, plaster or brick or like material, and shall reach from floor to the ceiling. Any person violating this

section shall, upon conviction, pay a fine of ten dollars and each day’s violation thereof shall constitute a separate and distinct offense.’ ” We now have before us a certified copy of the Durham city ordinance, which is ipsissimis verbis as quoted by Mr. Justice Harlan. An examination of our opinion in this case, when it was first before us, shows that the facts in this case and in Peterson v. Greenville are substantially identical. It now appears from Mr. Justice Harlan’s dissenting-in-part opinion in Peterson v.

Greenville that the city of Durham had a segregation ordinance similar to the segregation ordinance of the city of Greenville. Consequently, the majority opinion in Peterson v. Greenville expressing the views of eight members of the Court requires that the verdict that all the defendants, and each one of them, are guilty as charged, and that the judgment against each defendant, be vacated, and that a judgment be entered sustaining each defendant’s motion for judgment of compulsory nonsuit, and it is so ordered.

When this opinion is certified down to the superior court of Durham County, a judgment will be entered in accordance with this opinion.

The mandate from the Supreme Court of the United States contains this language: “IT WAS FURTHER ORDERED that John Thomas Avent, et al. recover from the State of North Carolina Six Hundred and IVo Dollars and Nine Cents ($602.09) for their costs herein expended.” Quaere: Does legislation or a municipal ordinance requiring white private owners and operators of restaurants, cafes, boarding houses, and other similar establishments, against their will, to furnish accommodations to, and to labor for in cooking and serving food to members of a race other than their own constitute a violation of the Thirteenth Amendment to the Constitution of the United States prohibiting “involuntary servitude”?

Reversed.