In this action for declaratory and injunctive relief it is admitted that the Eagle Coffee Shoppe, Inc., a restaurant located within an off-street automobile parking building in Wilmington, Delaware, has refused to serve appellant food or drink solely because he is a Negro. The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the Authority's lessee. Appellant claims that such refusal abridges his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court of Delaware has held that Eagle was acting in 'a purely private capacity' (157 A.2d 902) under its lease; that its action was not that of the Authority and was not, therefore, state action within the contemplation of the prohibitions contained in that Amendment. It also held that under 24 Del.Code s 1501, Eagle was a restaurant, not an inn, and that as such it 'is not required (under Delaware law) to serve any and all persons entering its place of business.' Del.1960, 157 A.2d 894, 902. On appeal here from the judgment as having been based upon a statute construed unconstitutionally, we postponed consideration of the question of jurisdiction under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2), to the hearing on the merits. 364 U.S. 810, 81 S.Ct. 52, 5 L.Ed.2d 40. We agree with the respondents that the appeal should be dismissed and accordingly the motion to dismiss is granted. However, since the action of Eagle in excluding appellant raises an important constitutional question, the papers whereon the appeal was taken are treated as a petition for a writ of certiorari, 28 U.S.C. § 2103, 28 U.S.C.A. § 2103, and the writ is granted. 28 U.S.C. § 1257(3), 28 U.S.C.A. § 1257(3). On the merits we have concluded that the exclusion of appellant under the circumstances shown to be present here was discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.
The Authority was created by the City of Wilmington pursuant to 22 Del.Code, §§ 501-515. It is 'a public body corporate and politic, exercising public powers of the State as an agency thereof.' § 504. Its statutory purpose is to provide adequate parking facilities for the convenience of the public and thereby relieve the 'parking crisis, which threatens the welfare of the community * * *.' § 501(7), (8) and (9). To this end the Authority is granted wide powers including that of constructing or acquiring by lease, purchase or condemnation, lands and facilities, and that of leasing 'portions of any of its garage buildings or structures for commercial ues by the lessee, where, in the opinion of the Authority, such leasing is necessary and feasible for the financing and operation of such facilities.' § 504(a). The Act provides that the rates and charges for its facilities must be reasonable and are to be determined exclusively by the Authority 'for the purposes of providing for the payment of the expenses of the Authority, the construction, improvement, repair, maintenance, and operation of its facilities and properties, the payment of the principal of and interest on its obligations, and to fulfill the terms and provisions of any agreements made with the purchasers or holders of any such obligations or with the city.' § 504(b)(8). The Authority has no power to pledge the credit of the State of Delaware but may issue its own revenue bonds which are tax exempt. Any and all property owned or used by the Authority is likewise exempt from state taxation.