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the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration.

Senator JOHNSTON. In other words, you could no more hold them for these acts than you could for adultery or murder or anything else, hold a State for it. That is what it means, does it not?

Senator ERVIN. Yes, sir.

And, again, on page 23 Judge Bradley answers that question a third time:

Under the 14th, as we have already shown, it—

that is, the legislation of Congress—

must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings.

And then a very fine answer to Senator Dodd's question is also to be found in the opinion of Justice Harlan in the case of Peterson v. the City of Greenville, which was handed down on May 20 of this year. He says:

The ultimate substantive question is whether there has been "State action of a particular character" (Civil Rights cases, supra at 11), whether the character of the State's involvement in an arbitrary discrimination is such that it should be held responsible for the discrimination.

In other words, the 14th amendment only applies if the State itself is responsible for the discrimination.

The State says to a citizen, "You must pay a license to engage in certain businesses, but when you engage in those businesses you may use your property as you see fit and select your customers as you see fit." If that individual practices what is popularly called discrimination, the State is not involved in that discrimination any more than would be the State involved in a murder if the State granted a man a license to buy a revolver and he goes out and shoots somebody. Senator HRUSKA. Would the Senator yield?

Senator ERVIN. Yes.

Senator HRUSKA. Since the Senator's testimony yesterday, it was suggested to me that if the license fees are construed as taxes, which I understand you say they are

Senator ERVIN. Yes.

Senator HRUSKA. That everything in the State would be the result of State action, because a man cannot own a home or a business building nor even a farm without paying taxes.

Senator ERVIN. Yes.

Senator HRUSKA. On that basis, it was suggested to me that if that proposition is correct, then everything would be the result of State action, and, therefore, subject for Federal legislation.

Is there any validity to that argument that was advanced to me? Senator ERVIN. That argument would be sound if the theory of this bill were sound. I have prepared a list of all the people who have to pay a license tax under the law of North Carolina, which I would like to have printed in full in the record. And it shows how absurd that theory is.

Senator HRUSKA. Of course, my question was directed to whether regular taxes could not be construed in that same fashion-inasmuch as the purpose of these license fees is to yield revenue.

Senator ERVIN. If the fantastic theory of the State being responsible for the action of all people who pay license taxes were adopted, it would apply to all forms of taxation. Then the Federal Government could regulate everything that goes on in the average dwelling house throughout the United States, because people have to pay taxes on their homes.

The Federal Government could regulate everything that goes on on all farms and in every privately owned forest in the United States. In North Carolina, Congress could regulate outdoor theaters, amusement parks, vaudeville shows, wild West shows, dog shows, pony shows, circuses, menageries, and carnival companies. It could regulate how attorneys at law should practice their profession, and how doctors should practice their profession. It could regulate the practice of veterinarians, surgeons, osteopaths, chiropractors, chiropodists, dentists, oculists, optometrists, and all people professing the healing art for fee or reward.

There is only one exception to that. If a person relies on prayer to heal in North Carolina, he doesn't have to pay a license tax. He is almost the only person who can do anything in North Carolina without paying a license tax according to our Revenue Code. And I suppose that this exception was in anticipation of the fact that praying would be decided to be somewhat unconstitutional and illegal, and, therefore, should not be sanctioned by a State tax.

Licenses are required of engineers, land surveyors, architects, landscape architects, photographers, canvassers for photographers, agents of photographers, members of partnerships, corporations engaged in real estate business, public accountants, morticians, embalmers, bondsmen, detectives, people conducting real estate auction sales, coal and coke dealers, collection agents, undertakers and retail dealers in coffins, horse traders, mule traders, phrenologists, itinerant photographers, agents and employees of itinerant photographers, bicycle dealers, pawnbrokers, people who sell cash registers or adding machines or typewriters or refrigerating or washing machines or coal stokers or vacuum cleaners or sewing machines, peddlers of spices or flavoring extracts or toilet articles or soaps or insecticides or proprietary medicines, peddlers of fruits, vegetables, and products of the farm, unless they are grown by them, contractors and construction companies, people who install elevators and automatic sprinkler systems, people who repair and service elevators, mercantile agencies, and gypsy fortunetellers.

It would be strange to say that a gypsy fortuneteller is exercising a public function and is an agent of the State.

Also included are lightning rod agents, hotels, tourist homes, and tourist camps.

Notice especially that Mrs. Murphy would have to pay a license tax in North Carolina to operate her tourist home.

And, while I am on that point, I would like to put in the record some extracts from the case of Purdy v. Moise, a case originating in Sumter, S.C., which was reported in 75 Southeastern Reporter, second series, at page 605. This case involved the question whether a person could build a tourist court or a motor court in an area which was zoned for hotels.

The court held in that case that the words "tourist court or motor court" was included by the word "hotel." I have not found any decision anywhere in the United States to the contrary.

So, under this decision, if Mrs. Murphy ran a tourist home or tourist court or motor court, she would be included within the meaning of the word "hotel" as used in this act.

And, at the same time, I would like to put in the record at this point an extract from the decision of the Supreme Judicial Court of Maine, Camp Walden v. Johnson, reported in 163 Atlantic Reporter, second series, at page 356, which defines a tourist home as a residence in which temporary guests are received for the purpose of a temporary stay.

(The extracts referred to are as follows:)

PURDY V. MOISE

((S.C.-1953) 75 S.E. 2d 605)

"In determining the first question, we are confronted with a dearth of decisions on the subject by reason of the fact that 'motor courts' or 'tourist courts' are relatively modern terms not found in the law dictionaries but used to denominate such institutions or places of business herein described and exist by reason of the demand by the transient public, who utilize the automobile principally as a means of transportation and therefore have need for convenient, temporary lodging."

*

"It is argued by appellants that under the generally accepted meaning of the words 'tourist court' and 'motor court' one could not have under consideration a hotel. The generally accepted meaning of words used in statutes or ordinances are to be accepted unless such words have a well recognized meaning in law; if so, they are presumed to have been used in that sense, Coakley v. Tidewater Construction Corp., 194 S.C. 284, 9 S.E. 2d 724; Powers v. Fidelity & Deposit Co. of Maryland, 180 S.C. 501, 186 S.E. 523. The word 'hotel' does have a well recognized meaning in law which under its terms are such as to encompass that of 'tourist court' or 'motor court.' The services rendered to the public may be of wide variances but such variances are in the method of quality rather than the character of such services."

CAMP WALDEN v. JOHNSON

((1960-Maine) 163 A. 2d 356)

"Does the term 'tourist camp' have a common and accepted meaning among people of this state? It undoubtedly has such a meaning. The state of Maine with its varied scenery and recreational facilities has for many years attracted tourists from all parts of the country. The increase in automobile transportation and the improvement of our highways has made our lakes, seashore, and countryside more accessible not only to our own citizens but also to myriads of visitors from other states. Many enterprising citizens, recognizing the requirement of living or housing accommodations on the part of those temporarily away from home, have found it profitable to construct so-called camps or cabins to provide such accommodations. Structures of this type were erected in many parts of the state, some more elaborate than others. Some owners provided but one cabin or camp, others provided many. The main purpose of these camps or cabins is to provide temporary sleeping or housing accommodations, and any other service rendered to the guest is merely incidental thereto. The terms 'tourist camp,' 'tourist cabin,' 'overnight camp,' and 'overnight cabin' have been interchangeably used by the public as the accepted designation of the type of building used for such a purpose. A group of such buildings is generally spoken of as a 'tourist camp.' Likewise, a residence in which temporary guests are received for the same purpose is commonly known as a 'tourist home." "

Senator ERVIN. I will go back to the people who are covered by the North Carolina license tax law.

In addition to those already named are restaurants, people who operate cotton compressors to compress cotton into bales, people who operate places where billiard and pool tables are used, and people who operate bowling alleys. Even people who operate music machines would be exercising the powers of government under this strange theory. The same observation applies to people who operate bagatelle tables and merry-go-rounds. Under this theory, the Congress could pass a law to require a merry-go-round to alter its course and go in the opposite direction from that in which it is accustomed to go. That shows how ridiculous this theory is.

Others who pay license taxes are manufacturers and producers and bottlers and distributors of soft drinks, cotton buyers, people who sell cotton on commission, people who operate packinghouses, newspapers which engage in newspaper popularity contests, persons in dry cleaning plants, hat blockers, operators of barbershops and shoeshine parlors, newsdealers on trains, people who operate soda fountains and soft drink stands, people who sell pistols, people who sell pianos or organs or radios, people who deal in installment paper, and tobacco and cigarette retailers and jobbers, launderers, people who engage in outdoor advertising, people who advertise on motor vehicles, people who make loans, brokers who negotiate loans, automobile salesmen, wholesale supply dealers, people who operate service stations, people who sell motorcycles, emigrant employment agents, people who solicit labor for employment, plumbers, heating contractors, electricians, and people who are engaged in the business of issuing or selling or delivering trading stamps.

North Carolina even puts a process tax in the form of a license fee on people who are convicted of crimes in the courts of the State. And so the criminals who are convicted would be exercising a part of the power of the State under this strange theory.

License taxes are also collected in North Carolina from people who have marble yards, people who manufacture ice cream, people who run branch or chain stores, people who are wholesale distributors of motor fuels, people who use patent rights and formulas in thir business, and junk dealers. I think that a junkyard is a proper place to leave the theory that the State is responsible for the action of everybody who is taxed by the State-be it a State license tax or a franchise tax or an ad valorem tax.

I would like this list to be printed at this point in the record. (The list referred to follows:)

TAXATION-LICENSE TAXES-STATE OF NORTH CAROLINA

General Statutes of North Carolina, 105-33. Taxes under this article.-(a) Taxes in this article or schedule shall be imposed as State license taxes for the privilege of carrying on the business, exercising the privilege, or doing the act named, and nothing in this article shall be construed to relieve any person, firm, or corporation from the payment of the tax prescribed in this article or schedule: Provided, the obtaining of a license required by this article shall not of itself authorize the practice of a profession, business, or trade for which a State qualification license is required.

105-34. Amusement parks.

105-35. Amusements-traveling theatrical companies, etc.

105-36. Amusements-manufacturing, selling, leasing, or distributing moving picture films or checking attendance at moving picture shows.

105-36.1. Amusements-outdoor theaters.

105-37. Amusements-moving pictures or vaudeville shows-admission. 105-37.1. Amusement-forms of amusement not otherwise taxed.

105-38. Amusements-circuses, menageries, wild west, dog and/or pony shows,

etc.

105-39. Amusements-carnival companies, etc.

105-40. Amusements-certain exhibitions, performances, and entertainments exempt from license tax.

105-41. Attorneys at law and other professionals (physician, veterinary, surgeon, osteopath, chiropractor, chiropodist, dentist, oculist, optician, optometrist, any person practicing any professional art of healing for a fee or reward, engineer, land surveyor, architect and landscape architect, photographer, canvasser for any photographer, agent of a photographer, members of partnerships, corporations engaged in real estate, public accountants, mortician, embalmer) but exempts persons engaged in healing who confine their practices to prayer or spiritual

means.

105-41.1. Bondsmen.

105-42. Detectives.

105-43. Real estate auction sales.

105-44. Coal and coke dealers. This applies to dealers or peddlers in coal who sell in quantities of not more than 100 pounds.

105-45. Collecting agencies.

105-46. Undertakers and retail dealers in coffins.

105-47. Dealers in horses and/or mules.

105-48. Phrenologists.

105-48.1. Itinerant photographers, their agents and employees.

105-49. Bicycle dealers.

105-50. Pawnbrokers.

105-51. Cash registers, adding machines, typewriters, refrigerating machines, washing machines, etc. (lists 17 specific types of machines including vacuum cleaners and coal stokers).

105-52. Sales of sewing machines.

105-53. Peddlers of spices, flavoring extracts, toilet articles, soaps, insecticide, proprietary medicine and household remedies, peddlers of fruits, vegetables, or products of the farm, except certain foods produced by the individual vendor. 105-54. Contractors and construction companies.

105-55. Installing elevators and automatic sprinkler systems.

105-56. Repairing and servicing elevators and automatic sprinkler systems. 105-57. Merchantile agencies.

105-58. Gypsies and fortunetellers.

105-59. Lightning rod agents.

105-60. Hotels.

105-61. Tourist homes and tourist camps.

105-62. Restaurants.

105-63. Cotton compresses.

105-64. Billiard and pool tables.

105-64.1. Bowling alleys.

105-65. Music machines.

105-65.1. Merchandising dispensers and weighing machines.

105-66. Bagatelle tables, merry-go-rounds, etc. This regulates also those oper-ating hobby horses, shooting galleries, skating rinks, and swimming pools. 105-67. Security dealers.

105-68. Cotton buyers and sellers on commission.

105-69. Manufacturers, producer, bottlers, and distributors of soft drinks.

105-70. Packinghouses.

105-71. Newspaper contests.

105-72. Persons, firms, or corporations selling certain oils.

105–74. Pressing clubs, drycleaning plants, and hat blockers (105-73, repealed). 105-75. Barbershops.

105-76. Shoeshine parlors.

105-77. Tobacco warehouses.

105-78. Newsdealers on trains.

105-79. Soda fountains, soft drink stands.

105-80. Dealers in pistols, etc. (105-81, repealed).

105-82. Pianos, organs, victrolas, records, radios, accessories.

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