Bell v. Maryland Brief of Appellants

    I s r  t h e

( ta rt nt Apprals of ila rg lta
S e pt e m b e r  T e r m , 1961 

No. 91

R obert M ack  B e l l , L ovellen  P .  B r o w n , A r im e n t h a  D . 
B u llo c k , R osetta  G a in e y , A n n e t t e  G r e e n , R obert M . 
J o h n so n , R ichard  M cK oy, A l ic e t e e n  E. M a n g u m , J o h n  
R. Q u arles , S r., M u r ie l  B. Q u arles , L a w ren ce  M. 
P arker  and B arbara F. W h it t a k e r ,

Appellants,
---- V .----

M aryland ,
Appellee.

A PPEA LS PRO M  T H E  C R IM IN A L  CO U RT OP B A LTIM O RE 

( J O S E P H  R . B Y R N ES, JU D G E ) AND ON R EM A N D  PRO M  

T H E  S U P R E M E  COU RT O P T H E  U N IT E D  STA TES

BRIEF OF APPELLANTS

J u a n ita  J ackson  M it c h e l l  
1239 Druid Hill Avenue 
Baltimore, Maryland 

T u c k e r  R . B earing

627 Aisquith Street 
Baltimore, Maryland 

J ack  G reenberg  
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellants
C harles  L. B la ck , Jr.
L eroy D. Clark

R onald R . D avenport

Of Counsel



I N D E X

PAGE

Statement of the Case .............. -........... -....-....---------  1

Questions in Controversy ....... ....—- .......... .............. — 2

Statement of F acts.............. -------- ----------------------- 3

A r g u m en t  ...... — ..... ................................---------- ---------------------  ^

I. The Conviction of Appellants for Trespass 
Cannot Be Sustained Because Their Conduct 
No Longer Constitutes a Crime Under Present 
State and Local Law ................. .....—........—  4

II. By the Passage of the Civil Rights Act of 
1964, Congress Has Removed the Taint of 
Criminality From Petitioners’ Conduct, and 
Federal Law Requires the Dismissal of 1 ur- 
ther Proceedings -----------------------------------  12

C on clu sio n  ...... ........-................. -.........- ............... -......... ............. -  26

T able of C ases

Awolin v. Atlas Exchange Bank, 295 U. S. 209 ...... . 14

Beard v. State, 74 Md. 130, 24 Atl. 700 (1891) ------- 7, 8, 11
Bell v. Maryland, 378 IT. S. 226,12 L. Ed. 2d 822 ....5, 8, 9,10,

11,13,15,16, 20
Board of Comm’s v. LTnited States, 308 U. S. 343 .........- 14

Deitrick v. Greaney, 309 U. S. 190 ........ —----- ------ --- H



11

PAGE

Erie R. Co. v. Tompkins, 304 U. S. 64 ........ ...............- 14

Gibbons v. Ogden, 22 U. S. (9 Wheaton) 1 --------- --- 13
Green v. State, 170 Md. 134, 183 Atl. 526 (1936) ___  9

Hauenstein v. Lynham, 100 U. S. 483 ............................  13

Keller v. State, 12 Md. 322 (1858) ...........................-6,7,8

Louisville & Nashville R.R. v. Mottley, 211 U. S. 149 ....18,19

Maryland v. Baltimore & Ohio R. Co., 44 U. S. (3 How.)
534 ....... .............................. .........-................... ..........  15

Massey v. United States, 291 U. S. 608 ......................— 16

NLRB v. Carlisle Lumber, 94 F. 2d 138 (9th Cir. 1937), 
cert. den. 304 U. S. 575 (1938), cert. den. 306 U. S.
646 (1939) ......................... ........................ -..............  19

O’Brien v. Western Union Telegraph Co., 113 F. 2d 
539 (1st Cir. 1940) .....................................................  14

Phelps Dodge v. NLRB, 113 F. 2d 202 (2d Cir. 1940), 
modified and remanded on other grounds, 313 U. S.
177 (1941) ......................... ........ ......... .......... ..........  19

Prudence Corp. v. Geist, 316 U. S. 89............................  14

Royal Indemnity Co. v. United States, 313 U. S. 289 .... 14

Smith v. Maryland, 45 Md. 49 (1876) .... .............. .....  8
Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173 ....13,14
Sperry v. Florida, 373 U. S. 379 .......... .................. ...13,14
State v. American Bonding Co., 128 Md. 268, 97 Atl.

529 (1916) 9



Ill

PAGE

State y. Clifton, 177 Md. 572, 10 A. 2d 703 (1940) ....6, 9,10
State v. Gambrill, 115 Md. 506, 81 Atl. 10 (1911) ..... 8
State v. Kennerly, 204 Md. 412,104 A. 2d 632 (1955) ....9,10

United States v. Chambers, 291II. S. 217.....       16
United States v. Reisinger, 128 U. S. 398 .................  15
United States v. Schooner Peggy, U. S. (1 Cranch) 103 15 
United States v. Tynen, 78 U. S. (11 Wall.) 8 8 ..........  15

Yeaton v. United States, 9 U. S. (5 Cranch) 281 ....   15

F ederal S tatutes

Civil Rights Act of 1964, 78 Stat. 241 .......... 12,13,14,16,
17,18,19, 20

National Labor Relations Act (Wagner-Connery Act) 
§8(a) (1) and (a)(3), 49 Stat. 452 (1935), 29 U. S. C. 
§158(a)(l) and (a)(3) ......... ........................ ........... 19

1 U. S. C. §109 ................................ ........... ...............16,17

S tate C o n stitu tio n a l  and S tatutory  P rovisions

Md. Const. Art. XVI .............. .................... ................  5
1 Md. Code §3 (1957) ..................................................... 9,16
27 Md. Code §577 (1957) ........................... ......... ...... 4
49B Md. Code §11 (1963) ............... ......................... . 5
Baltimore City Code, No. 1249, Article 14A, §10A 

(1950) .................. ......................- ........... ......... .....-  5



IV

PAGE

O t h e r  A u t h o r it ie s

Baltimore Sun, May 31, 1964, p. 22, col. 1 ..................... 5
Cong. Globe, 41st Cong., 2d Sess. 2464 (1870) ....... ...... 17
Cong. Globe, 41st Cong., 3rd Sess. 775 (1871) -------  17
110 Cong. Bee. 9162-3 (daily ed. May 1, 1964) ............. 13
110 Cong. Bee. 12999 (daily ed. June 11, 1964) ..........  17
House Judiciary Committee Beport on the Civil Bights 

Act, H. B. Beport No. 914, 88th Cong., 1st Sess. 
(1963) ............... ......... .............................. ................. 17

Million, Expiration or Bepeal of a Federal or Oregon 
Statute as a Bar to Prosecution for Violations There­
under, 24 Ore. L. Bev. 25 (1944) ............................  17



I n  t h e

(Emtrt of Appeals of Maryland
S e pt e m b e r  T e r m , 1961 

No. 91

R obert M ack  B e l l , L ovellen  P. B r o w n , A r im e n t h a  D. 
B u llo c k , R osetta Ga in e y , A n n e t t e  G r e e n , R obert M. 
J o h n so n , R ichard  M cK oy, A l ic e t e e n  E . M a n g u m , J o h n  
R . Q u arles , S r., M u r ie l  B . Q u arles , L a w ren ce  M . 
P arker  a n d  B arbara P .  W h it t a k e r ,

Appellants,

— v.—

M aryland ,
Appellee.

A PPEA LS PR O M  T H E  C R IM IN A L  COURT OP BA LTIM O RE 

( J O S E P H  R. B Y R N E S, JU D G E ) AND ON R EM A N D  PRO M  

T PIE  S U P R E M E  COURT O F T H E  U N IT E D  STATES

BRIEF OF APPELLANTS

Statement of the Case

On July 12, 1960, appellants, students attending local 
schools were indicted by the Baltimore City Grand Jury 
for trespassing on the premises of Hooper’s Restaurant at 
the southwest corner of Payette and Charles Streets in 
Baltimore City. They were tried before Judge Byrnes on 
November 10, 1960, and on March 24, 1961, were found 
guilty of violating Article 27, section 577 of the Maryland 
Code, 1957 Edition. Each appellant was given a suspended 
fine of $10.00 and order to pay costs of Court. On appeal,



2

this Court affirmed those judgments. On writ of certiorari 
the Supreme Court of the United States vacated the judg­
ments and remanded the cases for consideration by this 
Court.

Questions in Controversy

1. Whether the passage of public accommodations laws 
by the City of Baltimore and the State of Maryland, while 
the case at bar was on appeal, requires the reversal of 
appellants’ convictions.

2. Whether the passage of the Federal Civil Rights 
Act of 1964 prior to the final termination of the proceed­
ings of the instant case requires the reversal of appellants’ 
convictions.

Statement o f  Facts

Hooper’s Restaurant is a privately-owned conventional 
restaurant located at the southwest corner of Fayette and 
Charles Streets in the City of Baltimore. It is one of sev­
eral restaurants owned and operated by Gr. Carroll Hooper. 
It, along with the other restaurants operated by Mr. 
Hooper, holds itself open to the public. It is not a private 
club and there are no signs restricting patronage to mem­
bers of any particular group or class. Each appellant is a 
member of the Negro race and a student in Baltimore 
schools.

On or about June 17, 1960, appellants entered the res­
taurant while it was open for business and, in the customary 
fashion of white persons, requested the hostess, Ella Mae 
Dunlap, to assign them seats at tables for the purpose of 
being served. Miss Dunlap informed appellants that it was 
not the policy of the restaurant to serve Negroes, that she 
could not seat or serve any of the appellants, and asked



3

appellants to leave. She explained to them that she was 
following instructions of the owner. Appellants, despite the 
refusal to serve, persisted in their demands. They moved 
past Miss Dunlap and took seats at various tables on the 
main floor and in the basement. Appellants were not served 
and continued to sit at the tables.

The manager, Albert R. Warfel, and the owner, G. Carrol 
Hooper, were both called to the scene. They declared that 
the policy of the restaurant was not to serve any Negroes 
and requested that appellants leave. Appellants again 
refused to leave, protesting the discrimination policy of the 
restaurant, and persisted in their demand for food service. 
Police officers were called and appeared on the scene. The 
trespass statute, Article 27, Section 577, of the Maryland 
Code (1957 Edition) was read to appellants. They were 
told that they were trespassers, and were asked to leave. 
Appellants again refused to leave. Mr. Warfel was advised 
by the police that in order to have appellants ejected by the 
Baltimore City Police Department it would be necessary for 
him to obtain warrants for their arrest for trespassing. 
The police thereupon secured the appellants’ names and 
addresses. Warrants for their arrests were obtained by 
Mr. Hooper.

The Magistrate at the Central Police Station issued war­
rants for their arrest and called Robert B. Watts, attorney 
for appellants in the court below, and advised him that 
warrants had been issued for their arrest. An agreement 
was made to produce the appellants in Court several days 
later. Appellants appeared in Magistrate’s Court at the 
appointed time. Preliminary hearings were waived. Ap­
pellants in due course were indicted by the Grand Jury of 
Baltimore City. Each appellant posted bail bond of $100.00 
and by the customary and regular procedure each appel­
lant was brought to trial before Judge Byrnes in the Crim­
inal Court of Baltimore.



4

Appellants, by Motions for a Directed Verdict, oral 
arguments and written briefs, raised defenses under the 
Fourteenth Amendment to the United States Constitution. 
The motions were overruled. All defenses were denied. 
Judge Byrnes found that the defendants were “not law 
breaking people and their action was one of principle rather 
than any intentional attempt to violate the law.” Never­
theless, he found each of the appellants guilty of violating 
Section 577 of Article 27 of the Maryland Code (1957 Edi­
tion).

Appellants’ convictions were affirmed by this Court. On 
June 8, 1962, a petition for writ of certiorari was filed with 
the Supreme Court of the United States. Also on June 8, 
1962, the City of Baltimore enacted Ordinance No. 1249, 
adding §10 A to Art. 14A of the Baltimore City Code (1950 
Ed.). On March 29, 1963 the state adopted 49B Md. Code 
§11 (1963 Supp.), which went into effect on June 1, 1963. 
Each of the Statutes prohibits a restaurateur from denying 
service because of race. The Supreme Court granted cer­
tiorari and the case was argued. On June 22, 1964, the 
Supreme Court reversed and remanded the case to this 
Court. On July 2, 1964, the President signed the Civil 
Rights Act of 1964, which similarly prohibits the type of 
discrimination practiced in these cases.

I.

The Conviction of the Appellants for Trespass Cannot 
Be Sustained Because Their Conduct No Longer Consti­
tutes a Crime Under Present State and Local Law.

Appellants were arrested and convicted of violating 
Maryland’s criminal trespass law, §577 of Article 27 of the 
Maryland Code, 1957 Edition, which makes it a misde­
meanor to “enter upon or cross over the land, premises or 
private property of any person or persons in this State 
after having been duly notified by the owner or his agent



5

not to do so.” Although this statute remains in effect in 
Maryland, it is no longer applicable to the conduct for 
which the appellants were convicted. Therefore in keeping 
with previous decisions of this Court the convictions of 
appellants must he reversed.

It is undisputed the the sole reason for the arrest of the 
appellants is that they were Negroes attempting to eat at 
a “white” restaurant. The hostess at Hooper’s, Edna Mae 
Dunlap, admitted that appellants were properly dressed, 
that they wmre not disorderly, and that had they been white 
she would have allowed them to enter. Albert R. Warfel, 
the manager of Hooper’s stated that they were refused 
service solely on the basis of their color. G. Carroll Hooper 
the president of Hooper Food, Inc., stated that it was the 
preference of his customers that determined his policy not 
to serve Negroes. He admitted that appellants were peace­
ful and that they had a right to peaceful protest.

Since the arrest of the appellants the City of Baltimore 
has enacted ordinance No. 1249, adding section 10A to 
Article 14A of the Baltimore City Code (1950 edition). 
This ordinance prohibits owners and operators of Balti­
more places of public accommodation, including restau­
rants, from denying their service or facilities to any per­
son because of race. A similar public accommodations law 
was enacted by the State on March 29, 1963.1 The State 
law, although not applicable to all counties, is applicable

1 “Another public accommodations law was enacted by the Mary­
land Legislature on March 14, 1964, and signed by the Governor 
on April 7, 1964. This statute re-enacts the quoted provision from 
the 1963 enactment and gives it statewide application, eliminating 
the county exclusions. The new statute was scheduled to go into 
effect on June 1, 1964, but its operation has apparently been sus­
pended by the filing of petitions seeking a referendum. See Md. 
Const., Art. X V I; Baltimore Sun, May 31, 1964, p. 22, col. 1. How­
ever, the Baltimore City ordinance and the 1963 state law, both of 
which are applicable to Baltimore City, where Hooper’s restaurant
is located, remain in effect.” Bell v. Maryland, 378 U. S. 226,----- ,
12 L. Ed. 822, 825, n. 1.



6

to Baltimore City and Baltimore County. This statute pro­
vides :

It is unlawful for an owner or operator of a place of 
public accommodation or agent or employee of said 
owner or operator because of the race, creed, color, or 
national origin of any person, to refuse, withhold from, 
or deny to such person any of the accommodations, 
advantages, facilities and privileges of such place of 
public accommodations. For the purpose of this sub 
title, a place of public accommodation means any hotel, 
restaurant, inn, motel, or an establishment commonly 
known or recognized as regularly engaged in the busi­
ness of providing sleeping accommodations, or serving 
food, or both, for a consideration and which is open to 
the general public . . . ” (49B Md. Code Sec. 11 (1963 
Suppl.)).2

It is clear that the above ordinance and statute remove 
the criminal taint from appellants’ activities. Thus if the 
appellants were now to go to Hooper’s and were to be de­
nied service solely on the basis of race, not only wmuld they 
not be subject to criminal sanctions, but the restaurant 
itself would be in clear violation of both local and State 
law. Therefore, the question is whether appellants’ con­
victions may stand when, during the process of appeal, the 
conduct previously labeled criminal is unequivocally made 
lawful.

The decisions of this Court have historically followed the 
common law rule “that after a statute creating a crime has 
been repealed, no punishment can be imposed for any vio­
lation of it committed while it was in force.” State v. Clif­
ton, 177 Md. 572, 574, 10 A. 2d 703, 704 (1940). In Keller v.

2 This statute went into effect on June 1, 1963, as provided by 
Sec. 4 of the Act, Acts 1963 c. 227.



7

State, 12 Md. 322 (1858) the defendant was indicted and 
convicted and tiled an appeal. After the case was argued 
before the Court of Appeals the legislature passed an act 
repealing the act under which the indictment was framed. 
Although, the former law was not brought to notice of the 
court until after the defendant’s conviction was affirmed, 
this Court held:

It is well settled, that a party can not be convicted, 
after the law under which he may be prosecuted has 
been repealed, although the offence may have been 
committed before the repeal. The same principle ap­
plies where the law is repealed, or expires pending an 
appeal on a writ of error from the judgment of an 
inferior court.

In Beard v. State, 74 Md. 130, 24 Atl. 700 (1891), the 
defendant was convicted of keeping a disorderly house. The 
defendant filed an appeal and the conviction was affirmed. 
He fled to avoid sentencing. During the period between his 
fleeing and his capture the legislature passed an act in­
creasing the common lawT penalty for keeping a disorderly 
house. Defendant argued that this amendment of the act 
created a “new” crime thereby barring continuance of his 
conviction had under the Act prior to this revision. The 
court rejected the contention holding:

It will be observed that the act of 1890 does not create, 
define, enlarge, or diminish, or in any way alter or 
change, the common law offense. It leaves the offense 
precisely as it found it and deals only with the punish­
ment, it is confined exclusively to the future, and ex­
pressly declared that any person who shall keep—that 
is to say, who shall after the passage of that act keep— 
a disorderly house shall be liable to the penalties pro-



8

vided by the act. The obvious intention of the legisla­
ture in passing it was not to interfere with past of­
fenses, but merely to fix a penalty for future ones. 
The language employed plainly indicates that the gen­
eral assembly had references to prospective, and not to 
consummated offenses ; and it is not to be assumed that 
the legislature purposely enacted the law with a view 
to release from all punishment a convicted offender, 
who was at that very time a fugitive from justice. (Id. 
at 133, 701.)

If merely, the penalty had been altered (or increased) as in 
Beard, appellants might have been deprived of a claim that 
the “crime” no longer existed, but here the substantive 
crime has been abolished. Thus, the common law rule fol­
lows that “the judgment will be reversed, because the deci­
sion must be in accordance with the law at the time of final 
judgment.” Keller v. State, 12 Md. 322, 326, Smith v. Mary­
land, 45 Md. 49 (1876).

Maryland has a savings clause “which in certain circum­
stances ‘saves’ state convictions from the common law effect 
of supervening enactments.” Bell v. Maryland, 378 U. S. 
226, 12 L. ed. 2d 822, 827. This statute provides:

The repeal, or the repeal and re-enactment, or the 
revision, amendment or consolidation of any statute, 
or of any section or part of a section of any statute, 
civil or criminal, shall not have the effect to release, 
extinguish, alter, modify or change, in whole or in part, 
any penalty, forfeiture or liability, either civil or crim­
inal, which shall have been incurred under such stat-



9

ute, section or part thereof, unless the repealing, 
repealing and re-enacting, revising, amending or con­
solidating act shall expressly so provide; and such 
statute, section or part thereof, so repealed, repealed 
and re-enacted, revised, amended or consolidated, shall 
be treated and held as still remaining in force for the 
purpose of sustaining any and all proper actions, suits, 
proceedings or prosecutions, civil or criminal, for the 
enforcement of such penalty, forfeiture or liability, as 
well as for the purpose of sustaining any judgment, 
decree or order which can or may be rendered, entered 
or made in such actions, suits, proceedings, or prosecu­
tions imposing, inflicting or declaring such penalty, 
forfeiture or liability (1 Md. Code Sec. 3 (1957)).

The Supreme Court of the United States, in remanding to 
this Court stated that the above statute is not necessarily 
applicable to appellants’ convictions:

The Maryland case law under the saving clause is 
meager and sheds little if any light on the present ques­
tion. The clause has been construed only twice since 
its enactment in 1912, and neither case seems directly 
relevant here. State v. Clifton, 177 Md. 572, 10 A. 2d 
703 (1940); State v. Kennedy, 204 Md. 412, 104 A. 2d 
632 (1955). In two other cases, the clause was ignored. 
State v. American Bonding Co., 128 Md. 268, 97 A. 529 
(1916); Green v. State, 170 Md. 134, 183 A. 526 (1936). 
The failure to apply the clause in these cases was ex­
plained by the Court of Appeals in the Clifton case, 
■supra, 177 Md., at 576-577, 10 A. 2d at 705, on the basis 
that “in neither of those proceedings did it appear that 
any penalty, forfeiting or liability had actually been in­
curred.” This may indicate a narrow construction of



10

the clause, since the language of the clause would seem 
to have applied to both cases. Also indicative of a 
narrow construction is the statement of the Court of 
Appeals in the Kennerly case, supra, that the saving- 
clause is “merely an aid to interpretation, stating the 
general rule against repeals by implication in more 
specific form.” 204 Md., at 417,104 A. 2d, at 634. Thus, 
if the case law has any pertinence, it supports a narrow 
construction of the saving clause and hence a conclusion 
that the clause is inapplicable here. Bell v. Maryland, 
supra, 378 U. S. 226, 12 L. ed. 822, 828.

The savings clause does not apply to appellants’ convic­
tions because it is concerned with “the repeal, or the repeal 
and re-enactment, or the revision, amendment or consolida­
tion of any statute or any section or part of a section of any 
statute.” This language does not cover the case at bar for 
the following reasons. First, in remanding, Justice Brennan 
noted that as the enactment of the statute was a “unique 
phenomenon” in legislation, “it would consequently seem 
unlikely that the legislature intended the saving clause to 
apply in this situation, where the results of its application 
would be the conviction and punishment of persons -whose 
‘crime’ has been not only erased from the statute books but 
officially vindicated by the new enactments.” Bell v. Mary­
land, supra, 12 L. ed. at 829.

Secondly, barring the owner of a place of public accom­
modation from discriminating racially obviously does not 
constitute a “repeal” of the trespass statute, nor does it 
constitute an amendment, as that term is normally used. 
The acts in no way refer to the trespass statute “as is char­
acteristically done when a prior statute is being repealed or



11

amended.” Bell v. Maryland, supra, 12 L. ed. 827, 828. The 
trespass statute is still in effect, although it cannot be ap­
plied to enforce racial discrimination in places of public 
accommodation. In any event, the terms of the statute never 
required racial segregation, and therefore the public ac­
commodations law does not “repeal” or “amend” those 
terms.

Even assuming the applicability of the saving statute, 
that statute makes it possible for a legislature to “provide” 
that pending prosecution shall be voided. Justice Brennan 
noted that the wording of the Maryland public accommo­
dations law was in the present tense (as opposed to most 
criminal statutes which use the future tense). In light of 
Maryland law, this indicates an intent to have the statute 
apply to present as well as future conduct. Bell v. Mary­
land, supra, Beard v. State, 74 Md. 130, 21 A. 700.

Further evidence that the public accommodations laws 
were intended to apply to past as well as future conduct is 
the social context in which these laws were enacted. The 
legislatures were attempting to deal justiciably with wide­
spread protest in many Negro communities in the state. 
Moreover appellants’ conduct was not made non-criminal 
because of a judgment that it could not or should not be 
controlled by criminal sanctions (e . g removing criminal 
penalties from a failure to pay debt), rather, the legisla­
tures were attempting to correct a social evil and bring back 
harmony in race relations. Surely the healing of racial con­
flict would best be served by a negation of all prior con­
victions.

For the many reasons above, the Maryland common law 
rule of abatement voids these convictions, and the “savings 
clause” is inapplicable in this case.



12

II
By the Passage of the Civil Rights Act of 1964, Con­

gress Has Removed the Taint of Criminality from Peti­
tioners’ Conduct, and Federal Law Now Requires the 
Abatement of These Prosecutions.

Oil July 2, 1964, subsequent to petitioners’ convictions 
and to the remand by the United States Supreme Court of 
these convictions to this Court, the President signed the 
Civil Rights Act of 1964. That Act, paramount in authority, 
has removed the taint of criminality from actions formerly 
offenses. Title II of the Civil Rights Act provides:

Sec. 201. (a) All persons shall be entitled to the full 
and equal enjoyment of the goods, services, facilities, 
privileges, advantages, and accommodations of any 
place of public accommodation, as defined in this sec­
tion, without discrimination or segregation on the 
ground of race, color, religion, or national origin.

(b) Each of the following establishments which 
serves the public is a place of public accommodation 
within the meaning of this title if its operations affect 
commerce, or if discrimination or segregation by it is 
supported by State action: . . .

#  *  #  #  *

(2) any restaurant . . .
#  #  *  #  #

(c) The operations of an establishment affect com­
merce within the meaning of this title if . . . (2) in the 
case of an establishment described in paragraph (2) of 
subsection (b), it serves or offers to serve interstate 
travelers or a substantial portion of the food which it 
serves, or gasoline or other products which it sells, has 
moved in commerce; . . .



13

(d) Discrimination or segregation by an establish­
ment is supported by State action within the meaning 
of this title if such discrimination or segregation (1) is 
carried on under color of any law, statute, ordinance, or 
regulation; or (2) is carried on under color of any cus­
tom or usage required or enforced by officials of the 
State or political subdivision thereof; or (3) is required 
by action of the State or political subdivision thereof. 
78 Stat. 243.

The terms of the Act and its legislative history clearly 
establish that a defendant can assert the Act as a defense 
in a criminal trespass action of the type herein prosecuted. 
Section 203, 78 Stat. 244 specifically provides that:

No person shall . . . (c) punish or attempt to punish 
any person for exercising or attempting to exercise any 
right or privilege secured by section 201 or 202.

Senator Humphrey, floor manager for the Senate, read into 
the record a Justice Department statement explaining 
§203(e).

“This [§203(c)] plainly means that defendant in a crim­
inal trespass, breach of the peace, or other similar case 
can assert the rights created by 201 and 202 and that 
state courts must entertain defenses grounded upon 
these provisions.” Cong. Record, 88th Cong., 1st Sess. 
9162-3 (May 1, 1964).

Appellants submit that the Civil Rights Act of 1964, par­
ticularly §203(c), as set in the tradition of federal common 
law expounded in Bell v. Maryland, 378 U. S. 226, 12 L. ed. 
2d 822, abates these prosecutions. The text of the Act and 
all its implications are part of federal law, overriding con­
tradictory state law. Gibbons v. Ogden, 22 U. S. (9 
Wheaton) 1; Hauenstein v. Lynham, 100 IT. S. 483; Sola 
Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173; Sperry v.



14

Florida, 373 U. S. 379. The encompassing nature of the 
Civil Eights Act of 1964 requires that the problems of these 
cases be decided under the framework of the federal com­
mon-law. It would be inconsistent with the pervasive na­
tional policies of this Act to allow the continuation of these 
types of prosecutions depend upon differing policies of 
separate states. In the Sola case, the Supreme Court said, 
at p. 176:

It is familiar doctrine that the prohibition of a fed­
eral statute may not be set at naught, or its benefits 
denied, by state statutes or state common law rules. 
In such a case our decision is not controlled by Erie 
R. Co. v. Tompkins, 304 U. S. 64. There we followed 
state law because it was the law to be applied in the 
federal courts. But the doctrine of that case is in­
applicable to those areas of judicial decision within 
which the policy of the law is so dominated by the sweep 
of federal statutes that legal relations which they af­
fect must be deemed governed by federal law having 
its source in those statutes, rather than by local law. 
Royal Indemnity Co. v. United States, 313 U. S. 289, 
296; Prudence Corp. v. Geist, 316 IT. S. 89, 95 ; Board of 
Comm’s v. United States, 308 U. S. 343, 349-50; cf. 
O’Brien v. Western Union Telegraph Co., 113 F. 2d 
539, 541. When a federal statute condemns an act as 
unlawful, the extent and nature of the legal conse­
quences of the condemnation, though left by the statute 
to judicial determination, are nevertheless federal ques­
tions, the answers to which are to be derived from the 
statute and the federal policy which it has adopted. 
To the federal statute and policy, conflicting state law 
and policy must yield. Constitution, Art. VI, cl. 2; 
Awolin v. Atlas Exchange Bank, 295 U. S. 209; Deitrick 
v. Greaney, 309 U. S. 190, 200-01.



15

In Bell v. Maryland, supra, the Supreme Court stated that 
the universal common-law rule is

. . . that when the legislature repeals a criminal stat­
ute or otherwise removes the State’s condemnation 
from conduct that was formerly deemed criminal, this 
action requires the dismissal of a pending criminal 
proceeding charging such conduct at 12 L. ed. 2d 826.

Justice Brennan clearly noted the consistent application of 
this rule to federal enactments.

The rule has also been consistently recognized and 
applied by this Court. Thus in United States v. 
Schooner Peggy, 1 Cranch 103, 110, 2 L. ed. 49, 51, 
Chief Justice Marshall held:

“It is [in] the general true that the province of 
an appellate court is only to enquire whether a judg­
ment when rendered was erroneous or not. But if 
subsequent to the judgment and before the decision 
of the appellate court, a law intervenes and posi­
tively changes the rule which governs, the law must 
be obeyed, or its obligation denied. If the law be 
constitutional, . . .  I know of no court which can con­
test its obligation. . . .  In such a case the court must 
decide according to existing laws, and if it be neces­
sary to set aside a judgment, rightful when rendered, 
but which cannot be affirmed but in violation of law, 
the judgment must be set aside.”

See also Yeaton v. United Stales, 5 Cranch 281, 283, 
3 L. ed. 101, 102; Maryland v. Baltimore <& 0. R. Co., 
3 How. 534, 442, 11 L. ed. 714, 722; United States v. 
Tynen, 11 Wall. 88, 95, 20 L. ed. 153,155; United States 
v. Reisinger, 128 U. S. 398, 401, 32 L. ed. 480, 481, 9



16

S. Ct. 99; United States v. Chambers, 291 II. S. 217, 
222-223; 78 L. ed. 763, 765, 54 S. Ct. 434, 89 ALE 1510; 
Massey v. United States, 291 U. S. 608, 78 L. ed. 1019, 
54 S. Ct. 532. (Bell v. Maryland, supra, 12 L. ed. 2d 
at 826-27, n. 2.)

A case involving the exact question of the abating effect 
of a federal statute upon a state proceeding has apparently 
never arisen, but since national authority is paramount, 
the rule cannot be different from that in a federal prose­
cution. The Civil Eights Act, specifically aimed at state 
proceedings, renders lawful in the name of the national au­
thority that which was at one time unlawful under the state 
authority and renders unlawful the actions and claims of the 
proprietors, whose interests were protected by the state’s 
prosecution, cf. Bell v. Maryland, supra, at 12 L. ed. 2d at 
825. The effect of the Civil Eights Act of 1964, therefore, 
absent any saving clause, must be to abate these prosecu­
tions.

The only relevant statutory provision is the first senence 
of the Act of February 25, 1871, E. S. 13, now codified in 
1 U. S. C. §109, in the following terms:

§109. Repeal of statutes as affecting existing liabilities.
The repeal of any statute shall not have the effect to 

release or extinguish any penalty, forfeiture, or liability 
incurred under such statute, unless the repealing Act 
shall so expressly provide, and such statute shall be 
treated as still remaining in force for the purpose of 
sustaining any proper action or prosecution for the en­
forcement of such penalty, forfeiture, or liability.

This statute is inapplicable to the present case. More nar­
rowly drawn than the Maryland saving clause, it is to be 
distinguished for the same reasons, see supra, pp. 10, 11; 
Bell v. Maryland, supra, 12 L. ed. 2d 828-829.



17

Secondly, 1 U. S. C. §109 is inapplicable in the present 
context because that enactment has never referred to the 
saving of a state proceeding. The context of the 1871 en­
actment was one dealing with the repeal of federal statutes 
only. See Cong. Globe, 41st Cong., 2d Sess. 2464 (1870); 
id., 3rd Sess. 775 (1871); Million, Expiration Or Repeal of a 
Federal or Oregon Statute as a Bar to Prosecution for 
Violations Thereunder, 24 Ore. L. Rev. 25, 31, 32 (1944). 
Properly construed, therefore, the word “statute” as it ap­
pears in 1 U. S. C. §109 does not refer to a state enactment.

Finally, the saving clause is inapplicable because the 
Civil Rights Act contains an express mandate against con­
tinued prosecution §203(c), discussed supra, p. 13, pro­
hibits punishing or attempting to punish any person “for 
exercising or attempting to exercise any right or privilege 
secured by section 201 or 202.” [Emphasis added.] The 
word “secure,” in light of its ordinary dictionary meaning 
and the legislative context of the Act, is an apt synonym 
for “making safe that which already independently exists.” 
See, House Judiciary Committee Report on the Civil 
Rights Act, H. R. Report No. 914, 88th Cong., 1st Sess. 18, 
20 (1963) ; 110 Cong. Rec. 12999 (daily ed. June 11, 1964). 
The “existence” of these rights prior to July 2, 1964, as 
understood by the framers of the Act, results in the literal 
applicability of §203 (c) to these prosecutions.

That §203(c) is properly construed to apply to these 
cases is also shown by the constitutional underpinnings of 
the Civil Rights Act. First, in §201 (a) and (b), the Act 
proscribes racial discrimination directly required by ‘ state 
action,” which has long been construed as prohibited by the 
Fourteenth Amendment. A “right” against such state 
action was clearly present before July 2, 1964. The Act does 
not distinguish between this traditional concept of racially 
discriminatory “state action” {e.g. segregation statute)



18

and those situations in which a private person has invoked 
a state trespass law. Congress certainly did not wish to 
present every court disposing of a residual prosecution 
with the task of disentangling those “rights” which ante­
dated the Act in some strict sense from all the rights 
secured by §203(c).

Similarly, in the Civil Eights Act of 1964, Congress has 
made judgments concerning “interstate commerce.” Section 
201(c) (2) defines certain establishments covered by the Act 
as those which “affect commerce.” The average public res­
taurant which “offers to serve interstate travelers” has an 
undesirable effect on commerce when refusing to serve Ne­
groes. This judgment by Congress that the refusal of ser­
vice to Negroes is an undesirable burden on interstate 
travel must have been found to be the case before as after 
the passage of the bill. These constitutional considerations 
support the conclusion that Congress “secured” rights 
which antedated July 2, 1964.

These tightly drawn considerations are necessary when 
considering criminal liabilities. The arguments are quite 
sound and their rejection would result in the affirmance of 
convictions in these cases and numerous others of persons 
for peacefully claiming rights which Congress has now, 
overwhelmingly, in one of the great legislative enactments 
of our history, declared it to be in the national interest to 
“secure” against invasion.

Although the identical case in federal-state relationships, 
has not been found, there are several rulings in federal 
courts in analogous situations. In Louisville and Nash­
ville R.R. Co. v. Mottley, 211 U. S. 149, contract rights, 
perfect under state law and arising out of transactions 
long antedating the federal enactment, were held not en-



19

forcible where the enforcement contravened the new fed­
eral statute.

In a series of cases under the Wagner-Connery Act, 
employers have been held guilty of unfair labor practices 
for refusing to reinstate workers who had been discharged 
prior to the effective date of the Act. Phelps Dodge v. 
NLRB, 113 F. 2d 202 (2d Cir. 1940), modified and remanded 
on other grounds, 313 IT. S. 177 (1941); NLRB v. Carlisle 
Lumber, 94 F. 2d 138 (9th Cir. 1937), cert. den. 304 U. S. 
575 (1938), cert. den. 306 U. S. 646 (1939). In effect, these 
cases held that the Wagner-Connery Act required the re­
sumption of the relationship terminated because of activi­
ties occurring prior to the passage of the Act but favored 
and fostered subsequently by the Act. The Act achieved 
this result by language less decisive than that contained 
in the Civil Eights Act, particularly in §203 (c). In the 
Wagner Act, employers were forbidden to “interfere with, 
restrain, or coerce employees in the exercise of rights guar­
anteed in Section 7 . . .  ” and “ . . .  by discrimination in 
regard to hire and tenure . . .  to encourage or discourage 
membership in any labor organization.” National Labor 
Relations Act (Wagner-Connery Act) §8(a)(l) and (a)(3), 
49 Stat. 452 (1935), 29 U. S. C. §158(a)(l) and (a)(3). 
(Emphasis added.) The language of §203(c) of the Federal 
Civil Eights Act makes these cases striking parallels to 
the case at bar.

Finally, all state and private interests in the continued 
processing of these convictions are absent. The deterrence 
of petitioners, and others, from insisting on service, and 
the protection of the wishes of restaurateurs to practice 
racial discrimination are now illegitimate, directly con­
travening law and policy at federal, state, and city levels. 
On the other side of the balance, petitioners now have the 
affirmative right to that conduct upon which these convic-



20

tions were grounded. In light of this unique reversal of 
rights and duties, the Civil Rights Act of 1964, as con­
strued in the federal common law tradition, requires the 
dismissal of these proceedings. See Bell v. Maryland, supra, 
at 12 L. Ed. 2d 828, 829.

CONCLUSION

W h e r e fo r e , for the foregoing reasons, the appellants 
pray that their convictions be reversed. With the deepest 
respect, appellants also pray reconsideration of their argu­
ments presented on direct appeal before this Court,

J u a n ita  J ackson  M it c h e l l  
1239 Druid Hill Avenue 
Baltimore, Maryland

T u c k er  R . D earing

627 Aisquith Street 
Baltimore, Maryland

J ack  G reenberg  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

C h a rles  L. B la ck , J r.
L eroy D . Clark  
R onald R . D avenport 

Of Counsel



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