Drews v. Maryland Jurisdictional Statement

    In The

Supreme Court of the United States

October Term , 1964

No. JOLCL

DALE H. DREWS, et al.,
Appellants,

v.

STATE OF MARYLAND,
Appellee.

On A ppeal from the Court of A ppeals of Maryland

JURISDICTIONAL STATEMENT

Francis D. Murnaghan, Jr.,
Paul S. Sarbanes,

1400 Mercantile Trust Building, 
Baltimore, Maryland 21202 

Attorneys for Appellants.

The Daily Record Co., Baltimore, Md. 21203



I N D E X

Table of Contents

page

Opinions Below ................................................................  1

Jurisdiction ......................................................................... 2
1. Proceedings below ............................................... 2
2. Basis of Jurisdiction of this Court.....................  2

Constitutional and Statutory Provisions Involved 3

Questions Presented........................................................  3

Statement of the Ca s e ....................................................  5

How the Federal Questions are Presented...............  8

The Federal Questions are Substantial:
1. The arrest and conviction of the appellants are

the use of State action to enforce private dis­
crimination, and, therefore, constitute viola­
tions of the right of the appellants under the 
Fourteenth Amendment .................................... 9

2. The arrest and conviction of the appellants are
the denial of the rights of the appellants to 
freedom of speech and freedom of assembly .... 14

3. The arrest and conviction of the appellants
without any evidence that the appellants acted 
in any way in a disorderly manner to the dis­
turbance of the public peace are a denial of 
the rights of the appellants under the Four­
teenth Amendment ............................................. 15

4. The arrest and conviction of the appellants for
disorderly conduct in face of the failure of the 
State to arrest and convict members of the 
crowd who' were actually engaged in disorderly 
conduct are a denial to the appellants of equal 
protection of the laws .......................................  17



PAGE
5. The singling out of appellants for prosecution

and conviction while the State has proceeded to 
discontinue and dismiss prosecutions in ap­
proximately 200 other cases arising out of 
demonstrations at the same place of public re­
sort or amusement is a denial to appellants of 
due process and equal protection of the laws 
under the Fourteenth Amendment ...................  17

6. The Federal Civil Rights Act of 1964, 78 Stat.
241, requires the abatement of the pending con­
victions and the dismissal of the prosecutions
of the appellants..................................................  18

Conclusion ................................................................... 21
A ppendix A — Opinion of the Court of Appeals of 

Maryland on Remand from the Supreme Court 
of the United States (October 22, 1964) .............. la

A ppendix B — Opinion of the Court of Appeals of
Maryland (January 18, 1961) ............................ 6a

A ppendix C —  Memorandum Opinion of the Circuit 
Court for Baltimore County, Maryland (May 6,
1960) ......................................................................  13a

A ppendix D — Relevant Constitutional and Statu­
tory Provisions...................................................... 19a

Table of Citations 
Cases

Barr v. City of Columbia, 378 U.S. 146 (1964) ..........  16
Barrows v. Jackson, 346 U.S. 249 (1953) .................  10
Bell v. Maryland, 378 U.S. 226 (1964) ................. 2, 7, 14, 19
Buchanan v. Warley, 245 U.S. 60 (1917) .................  10
Civil Rights Cases, 109 U.S. 3 (1883) ........................  11,12
Drews v. Maryland, 378 U.S. 547 (1964) .....................  3
Edwards v. South Carolina, 372 U.S. 229 (1963) ......  16
Frank v. Maryland, 359 U.S. 360 (1959) .....................  3

ii



PAGE

Garner v. Louisiana, 368 U.S. 157 (1961) .................  16
Gayle v. Browder, 352 U.S. 903 (1956) ..................... 10
Griffin v. Maryland, 378 U.S. 130 (1964) ...................2, 7,19
Hamm v. Rock Hill, 379 U.S. 306 (1964) .................  9,19
Heart of Atlanta Motel, Inc. v. United States, 379 U.S.

241 (1964) .............................................................  14
Henry v. City of Rock Hill, 376 U.S. 776 (1964) ......  16
Hillsborough v. Cromwell, 326 U.S. 620 (1946) ......  18
Holmes v. City of Atlanta, 350 U.S. 879 (1955) ......  10
Katzenbach v. McClung, 379 U.S. 294 (1964) .......... 14
Louisville & N. R. Co. v. United States, 282 U.S. 740

(1931) ..................................................................... 17
Marsh v. Alabama, 326 U.S. 501 (1946) ..................... 14,15
Maryland v. Baltimore & O. R. Co., 3 How. 534 (1845) 19
Massey v. United States, 291 U.S. 608 (1934) .......... 19
McCollum v. Board of Education, 333 U.S. 203 (1948) 3
Niemotko v. Maryland, 340 U.S. 268 (1951) .............  3,16
Niemotko v. State, 194 Md. 247, 71 A. 2d 9 (1950) 17
Pace v. Alabama, 106 U.S. 583 (1882) .......................  17
Shelley v. Kraemer, 334 U.S. 1 (1948) .....................10,13,22
Snowden v. Snowden, 1 Bland (Md. Chan.) 550

(1829) ....................................................................  17
State v. Brown,.... D el......., 195 A. 2d 379 (1963) 10
State Athletic Commission v. Dorsey, 359 U.S. 533

(1959) ....................................................................  10
Taylor v. Louisiana, 370 U.S. 154 (1962) .................  16
Terminiello v. Chicago, 337 U.S. 1 (1949) .................  15,16
Thompson v. City of Louisville, 362 U.S. 199 (1960) 16
United States v. Chambers, 291 U.S. 217 (1934) ......  19
United States v. Reisinger, 128 U.S. 398 (1888) ......  19
United States v. Schooner Peggy, 1 Cranch 103 (1801) 19
United States v. Tynen, 11 Wall 88 (1870) .............  19
Wright v. Georgia, 373 U.S. 284 (1963) 16
Yeaton v. United States, 5 Cranch 281 (1809) .......... 19
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................  18

Ill



IV

Constitutional Provisions and Statutes
PAGE

Article 27, Section 123, Annotated Code of Maryland
(1957 edition) ........................................................  2, 3, 7

Civil Rights Act of 1964 ....................................3, 5, 9,18,19,
20, 21, 22

Civil Rights Act of 1875 ............................................... 11
Constitution of the United States:

Amendment 1 ........................................................ 3
Amendment XIV ................................3, 4, 5, 8, 9,10,11,

13,15, 17, 18
Title 28, United States Code, Section 1257 (2) .......... 3

Miscellaneous
deTocqueville, Democracy in America (Oxford

University Press, 1947) .......................................  13



In  T he

Supreme Court of the United States

October Term , 1964

No.

DALE H. DREWS, et al.,

v.
Appellants,

STATE OF MARYLAND,
Appellee.

O n  A ppeal from the Court of A ppeals of Maryland

JURISDICTIONAL STATEMENT

Appellants appeal from the decision of the Court of Ap­
peals of Maryland entered on October 22, 1964, reinstating 
and reaffirming judgments of the Circuit Court for Balti­
more County, Maryland, which had previously been af­
firmed by the Court of Appeals of Maryland on January 18, 
1961 and vacated by the Supreme Court of the United States 
on June 22, 1964, and submit this Statement to show that 
the Supreme Court of the United States has jurisdiction 
of the appeal and that a substantial federal question is 
presented.

OPINIONS BELOW
The opinion of the Court of Appeals of Maryland setting 

forth the decision and judgment from which this appeal is



2

taken and the dissenting opinion of Judge Oppenheimer 
are reported in 236 Md. 349, 204 A. 2d 64, and are attached 
hereto as Appendix A. The earlier opinion of the Court of 
Appeals of Maryland which was reviewed by the Supreme 
Court of the United States (378 U.S. 547) is reported in 
224 Md. 186, 167 A. 2d 341, and is attached hereto as Appen­
dix B. The memorandum opinion of the Circuit Court for 
Baltimore County, Maryland, setting out the judgments of 
conviction now on appeal is unreported and is attached 
hereto as Appendix C.

JURISDICTION
1. This prosecution was begun by the filing of a criminal 

information by the State’s Attorney for Baltimore County, 
Maryland, against the appellants under Section 123 of 
Article 27 of the Annotated Code of Maryland (1957 edi­
tion). Appellants were convicted of the charge of acting 
in a disorderly manner to the disturbance of the public 
peace on May 6, 1960 by the Circuit Court for Baltimore 
County, Maryland. The decision of the Court of Appeals 
of Maryland affirming the convictions was filed on January 
18, 1961; that judgment was subsequently vacated by the 
Supreme Court of the United States on June 22, 1964 and 
the case remanded to the Court of Appeals of Maryland 
for consideration in light of Griffin v. Maryland, 378 U.S. 
130, and Bell v. Maryland, 378 U.S. 226. The decision of the 
Court of Appeals of Maryland reinstating and reaffirming 
the judgment previously entered by it was filed on October 
22,1964. Notice of appeal in this case was filed on January 20, 
1965 in the Circuit Court for Baltimore County, Maryland, 
to which the record in the case had been returned after the 
entry of judgment by the Court of Appeals of Maryland.

2. The jurisdiction of the Supreme Court of the United 
States to review this decision by direct appeal is conferred



3

by Title 28, United States Code, Section 1257(2). Appel­
lants question the validity of Section 123 of Article 27 of 
the Annotated Code of Maryland (1957 edition) as inter­
preted by the Court of Appeals of Maryland in its decisions 
of January 18, 1961 and October 22, 1964, on the ground 
that, as so interpreted, it is repugnant to the Constitution 
and laws of the United States, and the decision of the high­
est court of the State was in favor of its validity as so 
interpreted. The following cases sustain the jurisdiction of 
the Supreme Court of the United States to review the de­
cision of the Court of Appeals of Maryland on direct appeal. 
Drews v. Maryland, 378 U.S. 547 (1964); Frank v. Mary­
land, 359 U.S. 360 (1959); Niemotko v. Maryland, 340 U.S. 
268 (1951); McCollum v. Board of Education, 333 U.S. 203 
(1948).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The relevant portions of Amendments I and XIV to the 
Constitution of the United States, Section 123 of Article 27 
of the Annotated Code of Maryland (1957 edition), and 
Title II of the Federal Civil Rights Act of 1964, 78 Stat. 241, 
are set forth in Appendix D hereto.

QUESTIONS PRESENTED
Appellants, two white males, one white female and one 

Negro female, were convicted of violating a statute making 
it a criminal offense to act in a disorderly manner to the 
disturbance of the public peace at any place of public 
resort or amusement. The basis for the convictions was 
the refusal of the appellants to leave a public amusement 
park, owned by a private corporation. The Negro appellant 
and another Negro were asked to leave the park because 
the owner had a policy of not admitting Negroes. The 
white persons were requested to leave because they were



4

in the same group as the two Negroes. The appellants at 
all times acted in a courteous and peaceful manner, and 
their only conduct which was found to be disorderly was 
their refusal to leave the amusement park when requested. 
Under these circumstances were the appellants:

1. Denied their rights under the privileges and immuni­
ties, equal protection and due process clauses of the Four­
teenth Amendment of the Constitution of the United States 
in that they were arrested and convicted, upon the request 
of a private owner, under a statute which was interpreted 
by the highest court of the State to make a criminal offense 
the refusal to leave a place of public resort and amusement 
when the request to leave was based solely on the ground 
that the presence of the appellants conflicted with the 
owner’s policy that members of the Negro race should be 
excluded;

2. Denied their rights under the due process clause of 
the Fourteenth Amendment in that they were arrested and 
convicted for exercising their rights to freedom of expres­
sion and association;

3. Denied their rights under the equal protection and due 
process clauses of the Fourteenth Amendment in that they 
were arrested and convicted without any evidence that the 
appellants acted in a disorderly manner to the disturbance 
of the public peace;

4. Denied their rights under the equal protection clause 
of the Fourteenth Amendment in that they were arrested 
and convicted of acting in a disorderly manner to the dis­
turbance of the public peace although the evidence clearly 
showed that others were the only persons acting in a dis­
orderly manner and such other persons were not proceeded 
against by the State;



5

5. Denied their rights under the equal protection and due 
process clauses of the Fourteenth Amendment in that they 
have been convicted for acts arising out of sit-in demonstra­
tions at a place of public resort or amusement, whereas the 
State’s Attorney of Baltimore County is proceeding to dis­
continue and dismiss the prosecutions in approximately 
200 other cases arising out of such demonstrations at the 
same place of public resort or amusement;

6. Exercising rights now established, protected and con­
firmed by the Federal Civil Rights Act of 1964, 78 Stat. 241, 
thereby requiring the abatement of the pending convictions 
and dismissal of the prosecutions of appellants.

STATEMENT OF THE CASE
On Sunday, September 6, 1959, the appellants, three 

whites and one Negro, together with another Negro, went 
to Gwynn Oak Park, a public amusement park in Balti­
more County, Maryland owned by a private corporation. 
All Nations Day was being celebrated at the park on that 
particular day (R. 33-34, E. 15)d About 3:00 P.M. the five 
individuals were standing approximately in the center of 
the park. They were in a group by themselves and had 
attracted no attention from others present on the park 
premises (R. 34, 36, E. 15, 17). A private park guard ap­
proached them and told them that the park was closed to 
colored persons and that they would have to leave (R. 19, 
35, E. 7, 16). There was no evidence that appellants had 
prior knowledge of such an exclusionary policy (See p. 
14a, Appendix C). The initial direction to leave was given 
to the two Negroes. When they remained, all five persons 
were asked to leave, but they refused (R. 22, E. 9). Appel-

1 “ R .” references are to the transcript of testimony at the trial. 
“ E.”  references are to the Record Extract printed as part of appel­
lants’ brief in the Court of Appeals in the initial appeal.



6

lants were very polite to the guard; one stated that he was 
enjoying himself and was going to stay and look around a 
little bit more (R. 22-23, E. 8, 9). Although the park was 
crowded (R. 48, E. 23), there was no particular congrega­
tion around the appellants until they were approached and 
asked to leave by the park guard (R. 33-36, E. 15-17),

Upon the refusal of the appellants to leave the park, the 
guard summoned the Baltimore County police (R. 23, E. 
8). After requesting the appellants to leave (R. 35. 40-42, 
E. 16, 19, 20), the police arrested the appellants on the 
specific request of a park official (R. 43, 49-50, E. 20, 24). 
The park official ordered the arrest in furtherance of the 
amusement park’s policy of excluding Negroes (R. 19-22, 
49-51, E. 7, 8, 24). During the period between the time the 
appellants were first requested to leave by the park police 
and their arrest by the County police, a crowd gathered 
around the appellants and the police, and its members ap­
peared to become angry and engaged in certain unruly and 
disorderly activities, including spitting at and kicking the 
appellants and using improper language in speaking to 
them (R. 23-24, 26, 28, E. 9, 11, 12). There was no attempt 
by the park officials or by the County police to exclude 
from the park or to arrest any of those who engaged in the 
disorderly conduct (R. 37, 51, 67, E. 17, 24, 33).

When arrested, appellants locked arms (R. 43, E. 20). 
Appellants Drews and Sheehan, in a further show of pas­
sive resistance, proceeded to lie on the ground at which 
time the joining of arms with the other two appellants 
ceased (R. 38, 45, 51, 54, E. 17, 21, 22, 26). Appellants 
Joyner and Brown left the park in the custody of the police 
but under their own power (R. 46, 53, E. 22, 26). The others 
were carried out (R. 38, E. 18). None of the appellants 
offered positive resistance and they made no remarks other 
than a plea by Drews for forgiveness of someone who was



7

mistreating him (R. 26, 29, 47, 61, 63, E. 11, 13, 22, 30, 31). 
The appellants were then taken to a police station where an 
employee of the park swore out a warrant against them.

On April 5, 1960, the appellants were charged in an 
amended criminal information with “acting in a disorderly 
manner, to the disturbance of the public peace, in or on 
Gwynn Oak Amusement Park, Inc., a body corporate, a 
place of public resort and amusement in Baltimore County” 
contrary to Section 123 of Article 27 of the Annotated Code 
of Maryland (1957 edition). On April 8, 1960, appellants 
were arraigned, pleaded not guilty and waived a jury trial. 
The trial then took place on this same day. At the trial, 
the officer who arrested the appellants testified that, had 
it not been for the request of the park official that appel­
lants be arrested, he would not have arrested them (R. 52, 
E. 25). At the conclusion of the State’s case, appellants 
moved for a directed verdict, which motion was taken 
under advisement by the Court. On May 6, 1960, the Court 
denied appellants’ motion for a directed verdict. Appel­
lants introduced no testimony and renewed their motion 
for a directed verdict. The Court thereupon entered a ver­
dict of guilty against each of the appellants and imposed a 
sentence of $25.00 plus costs on each. On June 2, 1960, an 
appeal to the Court of Appeals of Maryland was filed. On 
January 18, 1961, the Court of Appeals of Maryland af­
firmed the judgments rendered against the appellants and 
a notice of appeal to the Supreme Court of the United 
States was filed with the Court of Appeals on February 13, 
1961. On June 22, 1964 the Supreme Court vacated the 
judgment and remanded the case to the Court of Appeals 
of Maryland for consideration in light of Griffin v. Mary­
land, 378 U.S. 130 and Bell v. Maryland, 378 U.S. 226. Fol­
lowing such consideration the Court of Appeals of Mary­
land on October 22, 1964 reinstated and reaffirmed the prior



8

judgment of conviction. Appellants filed a notice of appeal 
from this decision on January 20, 1965.

HOW THE FEDERAL QUESTIONS 
ARE PRESENTED

The first four questions set out above for review in this 
Court were raised in the Court of first instance, the Cir­
cuit Court for Baltimore County, Maryland, generally by 
pleas of not guilty entered on April 8, 1960. On the same 
day at the end of the presentation of the State’s evidence, 
the appellants requested a directed verdict of not guilty 
on the grounds, inter alia, that, if appellants were con­
victed, they would be denied their constitutional rights 
under the Fourteenth Amendment to the Constitution of 
the United States. These contentions were originally made 
in oral argument. A reference to the record cannot be made 
since there is no transcript of the oral arguments. In the 
memorandum filed by appellants in support of their motion 
for a directed verdict of not guilty, each of the constitu­
tional arguments raised by the first four questions pre­
sented here for review were advanced and argued. How­
ever, the Circuit Court judge, in his memorandum opin­
ion, did not specifically pass on any of these constitutional 
arguments. The same constitutional contentions were pre­
sented to the Court of Appeals of Maryland in appellants’ 
brief and in oral argument. That Court ruled on Question 
One on pages lla-12a of Appendix B, Question No. 3 on 
pages 9a-10a, Questions Nos. 2 and 4 were not specifically 
ruled upon by the Court of Appeals but were rejected by 
the affirmance of the judgments of the Circuit Court.

The fifth question set out above for review by this Court 
grew out of occurrences subsequent to conviction of Ap­
pellants, and the original affirmance of their convictions by 
the Court of Appeals of Maryland. The question was raised



9

in the brief of appellants in the Court of Appeals following 
remand of this case by the Supreme Court. The Court of 
Appeals ruled on this question on page 5a of Appendix A.

The sixth question presented for review by this Court 
concerns the effect of the Federal Civil Rights Act of 1964 
upon the convictions of appellants. The convictions in this 
case, their original affirmance by the Court of Appeals of 
Maryland, and the remand of the case by this Court all 
took place prior to the enactment of the Federal Civil 
Rights Act of 1964. The order of the Court of Appeals set­
ting the case for rehearing specified that it should be in 
accordance with the remand and consequently matters 
arising from the enactment of the Federal Civil Rights Act 
of 1964 have not heretofore been considered in this pro­
ceeding. Appellants respectfully submit that the matters 
raised by question six are properly before this court for 
review. Hamm v. Rock Hill, 379 U.S. 306 (1964).

THE FEDERAL QUESTIONS ARE SUBSTANTIAL 
1. The arrest and conviction of the appellants are the use 

of State action to enforce private discrimination, and, 
therefore, constitute violations of the rights of the ap­
pellants under the Fourteenth Amendment.

The State of Maryland, by the decision in this case, has 
made the act of refusing to leave an amusement park open 
to the public but owned by a private corporation, when the 
request to leave arises solely from the policy of the park 
owner to exclude Negroes, a criminal offense. This case 
raises therefore the important constitutional question of 
whether a state can, without violating the Fourteenth 
Amendment, support by the use of its criminal laws, poli­
cies of racial discrimination adopted by owners of places 
of public resort or amusement. Alternatively stated, has 
the State of Maryland complied with the duty imposed on



10

it by the Fourteenth Amendment to enforce equal treat­
ment of all persons similarly situated in a place of public 
resort or amusement?

It has of course long been the law that a state cannot, 
under the Fourteenth Amendment, adopt and enforce a 
policy of racial segregation directly through the use of its 
criminal laws. Buchanan v. Warley, 245 U.S. 60 (1917); 
Holmes v. City of Atlanta, 350 U.S. 879 (1955) ; Gayle v. 
Browder, 352 U.S. 903 (1956); State Athletic Commission v. 
Dorsey, 359 U.S. 533 (1959). Moreover, as Shelley v. Krae- 
mer, 334 U.S. 1 (1948) and Barrows v. Jackson, 346 U.S. 249 
(1953) clearly indicate, the thrust of the Fourteenth 
Amendment has not been limited solely to those laws or 
state actions which enforce racial segregation policies di­
rectly adopted or supported by the state. In those cases, 
judicial enforcement of a discriminatory policy based upon 
a private agreement was held to be state action and hence 
within the prohibition set forth in the Fourteenth Amend­
ment. These decisions have been read to mean that a State 
may not apply its criminal trespass laws to compel a Negro 
patron to leave a place of public accommodation since this 
would be to place the weight of State power behind the 
discriminatory action of the owner or proprietor. As the
Supreme Court of Delaware noted in State v. Brown, ....
Del...... , 195 A. 2d 379, 386 (1963).

“In the instant case, the trespass statute, as applied, 
results in judicial sanction of a policy of racial dis­
crimination. Therefore, just as the State, in Turner 
[Turner v. City of Memphis, 369 U.S. 350 (1962)] may 
not enact a statute which supports racial discrimina­
tion, the courts may not apply a statute which results 
in the fostering of racial discrimination. Therefore, the 
argument advanced in such cases as [citations omitted], 
that a trespass prosecution is merely a neutral frame­
work for a vindication of a private property right is



11

untenable. The State, by intervening on the side of 
private discrimination, cannot be considered to be 
acting in a neutral or indifferent manner.”

Since the adoption of the Fourteenth Amendment, it has 
never, we submit, been the law that the owner of a place 
of business open to the public has the right to discriminate 
on the basis of race. When, in the Civil Rights Cases, 109 
U.S. 3 (1883), the Civil Rights Act of 1875 was held uncon­
stitutional, to the extent that it sought to regulate private 
action, this Court held only that the refusal to any persons 
of the accommodations of an inn, public conveyance or 
place of public amusement by an individual without any 
sanction or support from any state law or regulation did 
not violate the Fourteenth Amendment, because the Four­
teenth Amendment relates only to state action. The Civil 
Rights Cases further decided that the Thirteenth Amend­
ment did not sustain the Act since the private discrimina­
tion, even though unlawful, did not amount to slavery or 
involuntary servitude. The Court said, 109 U.S. at p. 24:

“Now, conceding, for the sake of the argument, that 
the admission to an inn, a public conveyance, or a 
place of public amusement, on equal terms with all 
other citizens, is the right of every man and all classes 
of men, is it any more than one of those rights which 
the states by the Fourteenth Amendment are forbidden 
to deny to any person? And is the Constitution vio­
lated until the denial of the right has some State sanc­
tion or authority? Can the act of a mere individual, the 
owner of the inn, the public conveyance or place of 
amusement, refusing the accommodation, be justly 
regarded as imposing any badge of slavery or servitude 
upon the applicant, or only as inflicting an ordinary 
civil injury, properly cognizable by the laws of the 
State, and presumably subject to redress by those laws 
until the contrary appears?

“After giving to these questions all the consideration 
which their importance demands, we are forced to the



12

conclusion that such an act of refusal has nothing to 
do with slavery or involuntary servitude, and that if 
it is violative of any right of the party, his redress is 
to be sought under the laws of the State; or if those 
laws are adverse to his rights and do not protect him, 
his remedy will be found in the corrective legislation 
which Congress has adopted, or may adopt, for counter­
acting the effect of State laws, or State action, pro­
hibited by the Fourteenth Amendment . .

This Court, thus, did not hold that the owner of an inn, 
public conveyance or place of public amusement had a 
constitutional right to discriminate on the basis of race. 
On the contrary, this Court assumed that there was a 
right in all citizens to frequent such places without dis­
crimination on grounds of race or color. See also 109 U.S. 
at pp. 19, 21, 23, and Justice Harlan’s dissent, 109 U.S. 
at 41-43. This Court merely held that the Federal Govern­
ment was without power to impose sanctions for violation 
of the federally created right against the private persons 
who were the owners of such places of business. Several 
of the states have remedied the situation in which Federal 
law creates a right, which is, nevertheless, imperiled by 
lack of an adequate remedy, through the passage of civil 
rights acts patterned on the Federal statute. That Mary­
land did not have such a civil rights act at the time of the 
events with which we are here concerned meant no more 
than that the federally created right not to be discriminated 
against in a place of public amusement did not have, in 
Maryland, adequate enforcement machinery against purely 
private discrimination.2 This did not mean, however, that 
the owner of a place of public amusement had a right to 
discriminate. A fortiori, it did not mean that he could call

_ 2 Accustomed as we now are to enforcement of federally created 
rights by direct federal action, we should not lose sight of the fact 
that such a technique for a federal government marked a great inno-



13

on the State of Maryland for aid in discriminating. As was 
said in Shelley v. Kraemer, supra, 334 U.S. at 22:

“It would appear beyond question that the power of 
the State to create and enforce property interests must 
be exercised within the boundaries defined by the 
Fourteenth Amendment.”

For a state to create and enforce a “right” of an owner of 
a business open to the public to discriminate on the basis 
of race would be state action within the meaning of the 
Fourteenth Amendment, and, therefore, subject to the re­
strictions of that amendment. And even though it be as­
sumed that the owner of purely private property has a 
constitutional right to the enjoyment of his property with­
out interference from others, it must be remembered that 
the property here involved has been thrown open to public 
use. The statute under which appellants were convicted 
required an express determination that the amusement

vation when adopted in 1789. As that acute observer of the American 
political system, Alexis deTocqueville, pointed out with respect to 
the Constitution:

“ This Constitution, which may at first sight be confounded 
with the Federal constitutions which preceded it, rests upon a 
novel theory, which may be considered as a great invention in 
modern political science. In all the confederations which had 
been formed before the American Constitution of 1789 the allied 
States agreed to obey the injunctions of a Federal Government; 
but they reserved to themselves the right of ordaining and en­
forcing the execution of the laws of the Union. The American 
States which combined in 1789 agreed that the Federal Govern­
ment should not only dictate the laws but that it should execute 
its own enactments. In both cases the right is the same, but 
the exercise of the right is different; and this alteration pro­
duced the most momentous consequences.” deTocqueville, D e­
mocracy in America (Oxford University Press, 1947), pages 
88-89.

Adoption of the Fourteenth Amendment represented a return, in 
one limited instance, to the earlier general practice of committing 
enforcement of a federally created right to the several states. That 
a state might fail in its obligation to enforce such a right does not 
create a “ right” in those who thereupon flaunt the federal right.



14

park was a place of public resort or amusement. The effect 
of the conduct by the owner of a business open to the public 
must be considered. This Court in Marsh v. Alabama, 326 
U.S. 501, 506 (1946), pointed out that:

“Ownership does not always mean absolute domin­
ion. The more the owner, for his advantage, opens 
up his property for use by the public in general, the 
more do his rights become circumscribed by the statu­
tory and constitutional rights of those who use it . .

It is apparent, therefore, that the basic premises of the 
Maryland Court of Appeals in the instant case concern­
ing the supposed rights of the owner of a business to dis­
criminate on the basis of race — and to seek state assistance 
in such discrimination — have never been supported by 
this Court.

This issue was the subject under discussion in the con­
curring and dissenting opinions of members of this Court 
in Bell v. Maryland, 378 U.S. 226, 242, 286, 318 (1964). The 
views expressed in that case on this issue were reaffirmed 
in the various concurring opinions of members of this Court 
in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 
241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964). 
Appellants respectfully submit that the constitutional issue 
raised by this question is not only of substantial merit but 
also of great national importance meriting therefore plen­
ary consideration by this Court with briefs on the merits 
and oral argument. 2

2. The arrest and conviction of the appellants are the denial 
of the rights of the appellants to freedom of speech 
and freedom of assembly.

The attendance of the white and Negro appellants to­
gether at a celebration named “All Nations Day” was more 
than merely an attempt to enjoy a public amusement park.



15

Their very association together symbolized the idea ex­
pressed by an “All Nations Day” celebration. They were, 
therefore, exercising their rights of freedom of speech and 
freedom of association, and the arrest and conviction of the 
appellants for disorderly conduct for exercising these rights 
is in contravention of the Fourteenth Amendment. If the 
appellants were, when arrested, carrying signs proclaiming 
the idea expressed by their association together, they would 
clearly be protected from arrest and conviction by the in­
terpretation given the Fourteenth Amendment in Marsh 
v. Alabama, supra, and in Terminiello v. Chicago, 337 U.S. 
1 (1949). Yet no placard could have expressed with greater 
eloquence the point of view which appellants displayed by 
appearing together in public despite their difference in 
color. The effect of the Marsh decision is that, where a 
private property owner invites the general public onto his 
property for his own benefit, the owner relinquishes his 
right to exclude members of the public at will where their 
activities are peaceful and in furtherance of the rights of 
freedom of speech and assembly. In the instant case, the 
owner of the amusement park, by admitting members of 
the public at large (except for Negroes) relinquished his 
right to exclude the appellants while they, by their very 
act of associating together, exercised the right of free 
speech to advocate the breaking down of artificial barriers 
based upon race. 3

3. The arrest and conviction of the appellants without any 
evidence that the appellants acted in any way in a dis­
orderly manner to the disturbance of the public peace 
are a denial of the rights of the appellants under the 
Fourteenth Amendment.

The record in this case is clear that appellants, prior to 
their arrest for acting in a disorderly manner, did no more 
than politely refuse to leave a public amusement park when



16

asked to leave as a result of the owner’s policy to exclude 
Negroes. Appellants did nothing that was in any way dis­
orderly and the hostile crowd did not assemble until after 
the park officials themselves had created a scene by calling 
attention to the appellants and by seeking to put the 
owner’s discriminatory policy into effect.

To allow individuals who have behaved in a peaceful 
manner to be convicted of acting in a disorderly manner 
because of the effect of their peaceful conduct on a crowd 
of hostile onlookers would make a mockery of our con­
cepts of criminal conduct. One is reminded of the hapless 
soul who, upon being strangled, is told by his assailant that 
unless he removes his neck from the assailant’s hands, the 
assailant will not be responsible for the consequences. 
Their convictions clearly run counter to the decision in 
Barr v. City of Columbia, 378 U.S. 146 (1964), where this 
Court was reluctant to assume that a State breach-of-peace 
statute would be applicable in view of the frequent occa­
sions on which the Court had reversed under the Four­
teenth Amendment convictions of peaceful individuals who 
were convicted of breach of the peace because of the acts 
of hostile onlookers. Henry v. City of Rock Hill, 376 U.S. 
776 (1964); Wright v. Georgia, 373 U.S. 284 (1963); Ed­
wards v. South Carolina, 372 U.S. 229 (1963); Taylor v. 
Louisiana, 370 U.S. 154 (1962); Garner v. Louisiana, 368 
U.S. 157 (1961); Terminiello v. Chicago, supra.

It is clear from the record here that there is no evidence 
of disorderly conduct on the part of appellants. The con­
victions should therefore not stand. Barr v. City of Colum­
bia, supra; Thompson v. City of Louisville, 362 U.S. 199 
(1960). Cf. Niemotko v. Maryland, supra, which upset a 
conviction under the same criminal statute here involved. 
There the defendants’ actions were taken in the face of



17

police orders and threats of arrest if the orders were dis­
obeyed. See Niemotko v. State, 194 Md. 247, 250, 71 A. 2d 
9, 10 (1950).

4. The arrest and conviction of the appellants for dis­
orderly conduct in face of the failure of the State to 
arrest and convict members of the crowd who were 
actually engaged in disorderly conduct are a denial to 
the appellants of equal protection of the laws.

The evidence clearly shows that the members of the 
crowd which surrounded the appellants and the police 
actually engaged in the only disorderly conduct which took 
place. The crowd spat, kicked and used improper language. 
The appellants were polite and mannerly at all times. 
Neither the park owner nor the police made any attempt 
to quell the disorder or to arrest any of the members of the 
crowd engaged in such conduct. The arrest and conviction 
of the appellants under such circumstances denied appel­
lants equal protection of the law. Pace v. Alabama, 106 
U.S. 583 (1882). 5

5. The singling out of appellants for prosecution and con­
viction while the State has proceeded to discontinue and 
dismiss prosecutions in approximately 200 other cases 
arising out of demonstrations at the same place of pub­
lic resort or amusement is a denial to appellants of due 
process and equal protection of the laws under the 
Fourteenth Amendment.

The manner in which a law is enforced may render an 
otherwise constitutionally valid measure invalid. While a 
statute may not be rendered ineffective solely through 
non-use, e.g., Louisville & N. R. Co. v. United States, 282 
U.S. 740, 759 (1931); Snowden v. Snowden, 1 Bland (Md. 
Chan.) 550, 556-58 (1829), it may not be applied discrim-



18

inatorily to members of the same class. The Fourteenth 
Amendment prevents the unequal enforcement of valid 
laws as well as any enforcement of invalid laws. Yick Wo 
v. Hopkins, 118 U.S. 356 (1886). See also Hillsborough v. 
Cromwell, 326 U.S. 620, 623 (1946), and the cases cited 
therein.

Gwynn Oak Park, the scene of the alleged offenses of 
appellants, was the subject of a number of sit-in demon­
strations in the summer of 1963. The demonstrations 
achieved their objective, for the park abandoned its seg­
regation policy. In the course of the demonstrations ap­
proximately 200 arrests were made. The State’s Attorney 
of Baltimore County has done nothing about bringing these 
other cases on for trial, and has proceeded to discontinue 
and dismiss said prosecutions. Considerations of due pro­
cess and equal protection under the Fourteenth Amend­
ment should prohibit the continuation of the convictions 
of Appellants. 6

6. The Federal Civil Rights Act of 1964, 78 Stat. 241, re­
quires the abatement of the pending convictions and 
the dismissal of the prosecutions of the appellants.

Appellants were convicted in the Circuit Court for Bal­
timore County, Maryland on May 6, 1960, and those con­
victions were originally affirmed by the Court of Appeals 
of Maryland on January 18, 1961. Both the convictions and 
the affirmance took place well prior to the enactment of 
the Federal Civil Rights Act of 1964 which was signed into 
law on July 2, 1964. The case was, however, on appeal to 
this Court or on remand to the Maryland Court of Appeals 
throughout the intervening period.

On June 22, 1964, this Honorable Court vacated the judg­
ment entered by the Court of Appeals of Maryland on Jan­
uary 18,1961 and remanded the case to the Court of Appeals



19

for consideration in light of Griffin v. Maryland, 378 U.S. 
130 and Bell v. Maryland, 378 U.S. 226. On July 31, 1964, 
the Court of Appeals ordered the case set for hearing upon 
the matters to be considered in accordance with the remand. 
In view of the terms of the remand and the order of the 
Court of Appeals, matters arising from the enactment of 
the Federal Civil Rights Act have not heretofore been con­
sidered in this proceeding.

However, it is clear that the judgments in this case are 
not yet final, Bell v. Maryland, supra, and that these con­
victions which are now on direct review must abate since 
the conduct in question is rendered no longer unlawful by 
the Civil Rights Act of 1964. Hamm v. Rock Hill, 379 U.S. 
306 (1964). As Chief Justice Hughes noted in United States 
v. Chambers, 291 U.S. 217, 226 (1934):

“Prosecution for crimes is but an application or en­
forcement of the law, and if the prosecution continues 
the law must continue to vivify it.”

See also United States v. Schooner Peggy, 1 Cranch 103 
(1801); Yeaton v. United States, 5 Cranch 281 (1809); 
Maryland v. Baltimore & O. R. Co., 3 How. 534 (1845); 
United States v. Tynen, 11 Wall. 88 (1870); United States 
v. Reisinger, 128 U.S. 398 (1888); Massey v. United States, 
291 U.S. 608 (1934).

Appellants assert that there are a number of incontro­
vertible facts establishing that the Gwynn Oak public 
amusement park is covered by the Federal Civil Rights 
Act of 1964, 78 Stat. 241:

1. The operations of the cafeteria on the premises of the 
amusement park (a cafeteria being an establishment de­
scribed in paragraph (2) of section 201(b) of the Act) 
affect commerce in that a substantial portion of the food



20

which it serves has moved in commerce (as provided in 
Sec. 201(c)(2)).

Given that the cafeteria is a covered establishment, the 
amusement park is also covered under the provisions of 
Sec. 201(b) (4) and (c)(4) since there is physically located 
within the premises of the amusement park a covered 
establishment, the cafeteria, and since the amusement park 
holds itself out as serving the patrons of such covered 
establishment.

2. The amusement park is a covered establishment since 
it is an “other place of exhibition or entertainment” re­
ferred to in Sec. 201(b) (3) and its operations affect com­
merce since it customarily presents performances, exhi­
bitions, or other sources of entertainment which move in 
commerce as provided in Sec. 201(c)(3) of the Act.

Alternatively, if the view is taken that the amusement 
park is not a covered establishment as indicated above be­
cause the operations discussed do not affect commerce, it 
is asserted that it nevertheless would have been a covered 
establishment at the time of the events with which we are 
here concerned on the following grounds:

1. Discrimination or segregation by the cafeteria was 
supported by State action (as provided in Section 201(b) 
and (d ) ) since such discrimination or segregation was car­
ried on under color of a custom or usage required or en­
forced by officials of the State or political subdivision 
thereof. In this case, the discriminatory custom or usage 
was enforced by the police officers of Baltimore County, 
Maryland and by the courts of the State of Maryland.

Since state action enforced discrimination by the cafe­
teria, thereby making it a covered establishment, the 
amusement park was also a covered establishment since



21

there was physically located within its premises a covered 
establishment and since it held itself out as serving the 
patrons of said covered establishment (as provided in Sec. 
201(b)(4)).

2. The amusement park itself was an “other place of ex­
hibition or entertainment” under Section 201(b) (3) of the 
Act and was a place of public accommodation thereunder 
since discrimination or segregation by it was supported by 
State action.

Said discrimination or segregation by the amusement park 
was supported by State action within the meaning of the 
Act in that such discrimination or segregation was carried 
on under color of a custom or usage required or enforced by 
officials of the State or a political subdivision thereof (as 
provided by Sec. 201(d)).

CONCLUSION
It is submitted that the decisions of the Court of Appeals 

of Maryland fail to recognize the limitations imposed by 
the Fourteenth Amendment upon the State’s power 1) to 
enforce discrimination in places of public resort or amuse­
ment through the use of its criminal laws; 2) to punish, 
through the use of its criminal laws, exercises of the right 
to freedom of speech and freedom of assembly; 3) to con­
vict a person for a violation of a criminal statute without 
any evidence of the substantial elements of the crime; 4) 
to arrest and convict a person of violation of a criminal 
statute when the evidence clearly shows that others were 
the only persons in violation of said statute and such per­
sons were not proceeded against in any way; 5) to prose­
cute and convict a person under the criminal laws for acts 
arising out of sit-in demonstrations when prosecutions in 
approximately 200 other cases arising out of such demon­



22

strations at the same place of public resort or amusement 
are being discontinued and dismissed; and 6) that said deci­
sions fail to give due consideration to the effect upon the 
prosecutions and pending convictions of the appellants of 
the enactment of the Civil Rights Act of 1964.

We believe that the questions presented by this appeal 
are substantial and are of public importance. As this Court 
noted in Shelley v. Kraemer, 334 U.S. 1, 22 (1948):

“The problem of defining the scope of the restric­
tions which the Federal Constitution imposes upon 
exertions of power by the States has given rise to many 
of the most persistent and fundamental issues which 
this Court has been called upon to consider.”

Respectfully submitted,

Francis D. Murnaghan, Jr.,
Paul S. Sarbanes,

1400 Mercantile Trust Building, 
Baltimore, Maryland 21202 

Attorneys for Appellants.



la

APPENDIX A
Opinion of Court of A ppeals of Maryland on Remand 

from the Supreme Court of the United States

(Decided October 22,1964)
236 Md, 349, 204 A. 2d 64

Horney, J. (Dissenting Opinion by Oppenheimer, J.)—
The appellants were convicted in 1960 of violating Code 

(1957), Art. 27, § 123, by “acting in a disorderly manner to 
the disturbance of the public peace” in a place of “public 
resort or amusement.” On the appeal to this Court, the 
convictions were affirmed in Drews v. State, 224 Md. 186, 
167 A. 2d 341 (1961). Having found that Gwynn Oak 
Amusement Park in Baltimore County was a place of public 
resort or amusement within the meaning of the statute, we 
held that the conduct of the appellants — two of whom 
were white men, one a white woman, and the other a 
colored woman — during the course of a demonstration 
protesting the segregation policy of the park, by joining 
arms and dropping to the ground after they had refused to 
obey a lawful request to leave the privately owned park, 
was disorderly in that it “disturbed the public peace and 
incited a crowd.” We also held that the action taken by the 
county police, in arresting the appellants for disorderly 
conduct (after the police at the request of the park man­
ager had asked them to leave and again they refused), did 
not constitute state enforcement of racial discrimination in 
violation of the Fourteenth Amendment of the United 
States. A direct appeal was thereafter taken to the Su­
preme Court of the United States, which, in a per curiam 
filed June 22, 1964, in Drews v. Maryland, 378 U.S. 547, va­
cated the judgments and remanded the case to this Court 
“for consideration in light of Griffin v. Maryland [378 U.S. 
130] and Bell v. Maryland [378 U.S. 226],” decided on the 
same day as Drews.

In Griffin v. State, 225 Md. 422, 171 A. 2d 717 (1961), 
where the park officer was authorized to make arrests



2a

either as a paid employee of a detective agency then under 
contract to protect and enforce the racial segregation policy 
of the operator of Glen Echo Amusement Park in Mont­
gomery County or as a nonsalaried special deputy sheriff 
of the county, we affirmed the conviction of the appellants 
for trespassing on private property in violation of Code 
(1957), Art. 27, § 577, when they refused to leave the prem­
ises after having been notified to do so. But the Supreme 
Court in Griffin v. Maryland, supra, held that the arrest of 
the appellants by the park officer was state action in that 
he was possessed of state authority and purported to act 
under that authority, and reversed the judgment. In Bell 
v. State, 227 Md. 302, 176 A. 2d 771 (1962), where the ap­
pellants had entered the private premises of a restaurant 
in Baltimore City in protest against racial segregation, sat 
down and refused to leave when asked to do so on the 
theory that their action in remaining on the premises 
amounted to a permissible verbal or symbolic protest 
against the discriminatory practice of the owner, we af­
firmed the convictions for criminal trespass for the reason 
that the right to speak freely and to make public protest 
did not import a right to invade or remain on privately 
owned property so long as the owner retained the right to 
choose his guests or customers. The Supreme Court granted 
certiorari. In the interim between the decision of this 
Court and the decision of the Supreme Court, both the city 
and state enacted “public accommodation laws.” When the 
Supreme Court decided Bell v. Maryland, supra, it reversed 
the judgment of this Court and remanded the case for a 
determination by us of the effect of the subsequently en­
acted public accommodation laws on pending criminal 
trespass convictions.1

On the remand of this Drews case, the appellants raise 
two questions. In effect they contend: (i) that their arrest 
and conviction constitutes state action in the light of the 
decision in Griffin v. Maryland, supra; and (ii) that to up­
hold their conviction now for acts arising out of sit-in dem­

(1 ) See Bell v. State, 236 Md. 356, 204 A. 2d 54 (1964), decided 
on the remand on or about the same time as this case.



3a

onstrations at Gwynn Oak Amusement Park would be to 
deny them due process and equal protection because the 
State’s Attorney for Baltimore County has failed to prose­
cute approximately two hundred other cases charging the 
same offense.

(i)
In reconsidering the convictions of the “Drews” appel­

lants in the light of Griffin v. Maryland, supra, we find 
nothing therein which compels or requires a reversal of our 
decision in Drews v. State (224 Md. 186). Significantly, the 
question as to whether the same result would have been 
reached by the Supreme Court had the arrests in Griffin 
been made by a regular police officer, as in the Drews case, 
was not decided. The arrests and subsequent convictions of 
the appellants for criminal trespass were held in Griffin 
to constitute state action because the arresting officer, a 
park employee, was also a special deputy sheriff. In Drews, 
however, the appellants not only refused to leave the 
amusement park peacefully after they had been requested 
to do so, but acted in a disorderly manner when the arrest­
ing officers, who were county police officers, not park em­
ployees, undertook to eject them. The record in Drews 
does not show, nor has it ever been contended, that the 
park employee, who assisted the arresting officers, had 
power (as was the case in Griffin) to make arrests. By 
reversing Griffin and remanding Drews, the Supreme 
Court must have had some doubt as to whether the two 
cases were distinguishable. We think there are important 
differences in the two cases between the reasons or causes 
for the arrests and the type of police personnel that made 
the arrests, and that such distinctions are controlling.

In Drews, where the trespassers conducted themselves 
in a disorderly manner when the police undertook to for­
cibly eject them from the amusement park in an effort to 
prevent them from further inciting the gathering crowd by 
remaining in the park after they had been requested to 
leave by the park manager as well as the county police, 
the arrests were made by policemen who were not em­
ployed by the park, who were not paid by the park, and



4a

who were under no orders of any park official. The very 
fact that the police made no move to eject the trespasser 
from the park until they were requested to do so by the 
manager shows the complete absence of any cooperative 
state action. Nor was there any evidence that the State 
desired or intended to maintain the amusement park as 
a segregated place of amusement. In these circumstances, 
it seems clear to us that the arrest of the Drews appellants 
(who were both white and colored) for disorderly con­
duct did not constitute state enforcement of racial dis­
crimination. To hold otherwise would, we think, not only 
deny the park owners equal protection of the laws, but 
could seriously hamper the power of the State to maintain 
peace and order and, when imminent as was the case here, 
to forestall mob violence or riots.

We deem it unnecessary to elaborately discuss the only 
two cases cited by the appellants — State v. Brown, 195 
A. 2d 379 (Del. 1963), and Wright v. Georgia, 373 U.S. 284 
(1963). Neither is apposite here and, assuming they are, 
both are clearly distinguishable on the facts. Even if the 
arrest of the Drews appellants for disorderly conduct was 
the result of or arose out of their ejection from the park 
for trespassing on private property, there was no violation 
of a constitutional guarantee. We reiterate what was re­
cently said in In Matter of Cromwell, 232 Md. 409, 413. 194 
A. 2d 88 (1963), that “we find no violation of the Four­
teenth Amendment in the assertion of a private proprietor’s 
right to choose his customers, or to eject those who are dis­
orderly.” We see no reason to reverse the convictions in 
this case.

The reason for the remand of the case for consideration 
in the light of Bell v. Maryland, supra, is not clear. The 
judgments in Bell were vacated and the case remanded to 
enable this Court to pass upon the effect of supervening 
public accommodation laws on the criminal trespass law. 
Since there is no provision in the public accommodation 
law enacted by the State (Code, 1964 Supp., Art. 49B, § 11) 
with respect to amusement parks, we need not decide the 
effect of the supervening legislative enactment on the 
convictions in this case.



5a

(ii)
The second contention of the appellants — that the fail­

ure of the State to prosecute others for the same or similar 
offenses is a denial of due process or equal protection — is 
without merit and has no bearing on the convictions in this 
case. Guilt or innocence cannot be made to depend on the 
question of whether other parties have not been prosecuted 
for similar acts. Callan v. State, 156 Md. 459, 466, 144 Atl. 
350 (1929). Nor is the exercise of some selectivity in the 
enforcement of a criminal statute, absent a showing of un­
justifiable discrimination, violative of constitutional guar­
antees. Oyler v. Boles, 368 U.S. 448 (1962). See also Moss 
v. Hornig, 314 F. 2d 89 (C.A. 2d 1963).

Judgments reinstated and reaffirmed; appellants to pay 
the costs.

Oppenheimer, J. (dissenting)—
In Griffin v. Maryland, 378 U.S. 130 (1964), the Supreme 

Court of the United States reversed the judgments against 
the defendants affirmed by us in Griffin v. State, 225 Md. 
422, 171 A. 2d 717 (1961) on the ground that the arrests 
were the products of State action taken because the de­
fendants were Negroes, and therefore racial discrimination 
in violation of the Equal Protection Clause of the Four­
teenth Amendment. In Griffin, the arresting officer, Collins, 
was a deputy sheriff of Montgomery County employed by 
and subject to the direction and control of the amusement 
park. The record shows that in this case the special police­
man, Officer Wood, was in the employ of the amusement 
park but it does not show whether or not he had been 
deputized by Baltimore County. Pursuant to the instruc­
tions of the park’s management, Wood told the defendants 
the park was closed to Negroes, ordered them to leave and, 
when they did not, sent for the Baltimore County police. 
He and the county police together removed the defendants 
from the park.

If Wood, the “special officer” in this case, had virtually 
the same authority from Baltimore County that Collins had



6a

from Montgomery County, it seems to me immaterial that 
he called in the Baltimore County police to help him evict 
the defendants. He was the proximate cause of the arrests. 
If his authority stemmed from the State, then under Griffin 
v. Maryland, supra, the State was a joint participant in the 
discriminatory action.

On the facts, it also seems immaterial that the convictions 
here were for disorderly conduct rather than for trespass 
as in Griffin. In resisting the command of the officers to 
leave the park, the defendants used no force against the 
officers or anyone else; they held back or fell to the ground. 
Such failure to obey the command, if the command itself 
was violative of the Constitution, would not sustain the 
convictions. Wright v. Georgia, 373 U.S. 284, 291, 292 
(1963).

The Baltimore County Code authorizes the county to ap­
point special police officers to serve for private persons or 
corporations. Baltimore County Code, Sections 24-13 and 
35-3 (1958). I would remand this case to the Circuit Court 
for Baltimore County for the taking of additional testimony 
to determine whether or not Wood was appointed by Bal­
timore County under these sections of its Code. If he was, 
the convictions should be reversed.

APPENDIX B
Opinion of Court of A ppeals of Maryland 

(Decided January 18,1961)
224 Md. 186,167 A. 2d 341

Hammond, J.:
The four appellants were convicted by the court sitting 

without a jury of violating Code (1957), Art. 27, Sec. 123, 
by “acting in a disorderly manner to the disturbance of 
the public peace” in a “place of public resort or amuse­
ment.” Two of appellants are white men, one is a white 
woman, and the other a Negress. Accompanied by a 
Negro who was not tried, they had gone as a group to



7a

Gwynn Oak Amusement Park in Baltimore County, which 
as a business policy does not admit Negroes, and were 
arrested when they refused to leave after being asked to 
do so.

Appellants claim that there was no evidence that the 
Park is a place of public resort or amusement, that if 
there were such evidence the systematic exclusion of 
Negroes prevents the Park from being regarded as such 
a public place, that they were not guilty of disorderly 
conduct and, finally, if the Park is a place of public resort 
or amusement their presence there was in the exercise 
of a constitutional right, and their arrest and prosecution 
amounted to State action to enforce segregation in violation 
of the Constitution of the United States.

There is no direct statement in the record that the Park 
is a place of public resort or amusement but we think the 
evidence clearly permitted the finding the trial court made 
that it is. There was testimony which showed, or permitted 
the inference, that the Park is owned by a private corpora­
tion, that it has been in operation each summer for many 
years, that among its attractions are a miniature golf course 
and a cafeteria, that appellants’ conduct occurred on “All 
Nations Day” which usually attracts a large crowd, that on 
that day the Park was so crowded there was but elbow 
room to walk, and that the Park’s policy was to welcome 
everyone but Negroes. The trial court properly could have 
concluded the Park is a place resorted to by the general 
public for amusement. Cf. Iozzi v. State, 224 Md. 42.

A lawmaking body is presumed by the Courts to have 
used words in a statute to convey the meaning ordinarily 
attributed to them. In recognition of this plain precept 
the Courts, in construing zoning, licensing, tax and anti- 
discrimination statutes, have held that the term place of 
public resort or amusement included dance halls, swim­
ming pools, bowling alleys, miniature golf courses, roller 
skating rinks and a dancing pavilion in an amusement 
park (because it was an integral part of the amusement 
park), saying that amusement may be derived from 
participation as well as observation. Amos v. Prom, Inc.,



8a

117 F. Supp. 615; Askew v. Parker (Cal. App.), 312 P. 2d 
342; Jaffarian v. Building Com’r (Mass.), 175 N.E. 641; 
Jones v. Broadway R,oller Rink Co. (Wis.), 118 N.W. 170, 
171; Johnson v. Auburn & Syracuse Electric R. Co. (N.Y.), 
119 N.E. 72. Section 123 of Art. 27 proscribes conduct 
which disturbs the public peace at a place where a number 
of people are likely to congregate, whether it is on gov­
ernmental property or on property privately owned. This 
is made clear by the prohibition of offensive conduct not 
only on any public street or highway but in any store 
during business hours, and in any elevator, lobby or cor­
ridor of an office building or apartment house having more 
than three dwelling units, as well as in any place of public 
worship or any place of public resort or amusement. We 
read the statute as including an amusement park in the 
category of a place of public resort or amusement.

We find no substance in the somewhat bootstrap argu­
ment that the regular exclusion of Negroes from the Park 
kept it from being within the ambit of the statute. Early 
in the common law the duty to serve the public without 
discrimination apparently was imposed on many callings. 
Later this duty was confined to exceptional callings, as 
to which an urgent public need called for its continuance, 
such as innkeepers and common carriers. Operators of 
most enterprises, including places of amusement, did not 
and do not have any such common law obligation, and in 
the absence of a statute forbidding discrimination, can 
pick and choose their patrons for any reason they decide 
upon, including the color of their skin. Early and recent 
authorities on the point are collected, and exhaustively 
discussed, in the opinion of the Supreme Court of New 
Jersey in Garifine v. Monmouth Park Jockey Club, 148 A. 
2d 1. See also Greenfeld v. Maryland Jockey Club, 190 Md. 
96; Good Citizens Community Protective Assoc, v. Board 
of Liquor License Commissoners, 217 Md. 129, 131; Slack 
v. Atlantic White Tower System, Inc., 181 F. Supp. 124; 
Williams v. Howard Johnson’s Restaurant, 268 F. 2d 845.

It has been noted in the cases that places of public ac­
commodation, resort or amusement properly can exclude 
would-be patrons on the grounds of improper dress or



9a

uncleanliness, Amos v. Prom, Inc., supra (at page 629 of 
117 F. Supp.); because they are under a certain age, are 
men or are women, or are unescorted women, Collister 
v. Hayman (N.Y.), 76 N.E. 20; or because for some other 
reason they are undesirables in the eyes of the establish­
ment. Greenfeld v. Maryland Jockey Club; Good Citizens 
Protective Assoc, v. Board of Liquor License Commis­
sioners; Slack v. Atlantic White Tower System, Inc., all 
supra. See 86 C.J.S. Theaters and Shows Secs. 31 and 34 
to 36. We have found no decision holding that a policy 
of excluding certain limited kinds or classes of people 
prevents an enterprise from being a public resort or amuse­
ment, and can see no sound reason why it should.

Appellants’ argument that they were not disorderly is 
that neither the mere infringement of the rules of a pri­
vate establishment nor a simple polite trespass constitutes 
either a breach of the peace or disorderly conduct. We 
find here more than either of these, enough to have per­
mitted the trier of fact to have determined as he did that 
the conduct of appellants was disorderly.

It is said that there was no common law crime of dis­
orderly conduct. Nevertheless, it was a crime at common 
law to do many of the things that constitute disorderly 
conduct under present day statutes, such as making loud 
noises so as to disturb the peace of the neighborhood, col­
lecting a crowd in a public place by means of loud or 
unseemly noises or language, or disturbing a meeting as­
sembled for religious worship or any other lawful purpose. 
Hochheimer on Crimes and Criminal Procedure, Sec. 392 
(2nd Ed.); 1 Bishop on Criminal Law, Sec. 542 (9th Ed.); 
Campbell v. The Commonwealth, 59 Pa. St. Rep. 266.

The gist of the crime of disorderly conduct under Sec. 
123 of Art. 27, as it was in the cases of common law 
predecessor crimes, is the doing or saying, or both, of that 
which offends, disturbs, incites, or tends to incite, a num­
ber of people gathered in the same area. 3 Underhill, 
Criminal Evidence, Sec. 850 (5th Ed.), adopts as one defini­
tion of the crime the statement that it is conduct “of such 
a nature as to affect the peace and quiet of persons who



10a

may witness the same and who may be disturbed or pro­
voked to resentment thereby.” Also, it has been held that 
failure to obey a policeman’s command to move on when 
not to do so may endanger the public peace, amounts to 
disorderly conduct. Bennett v. City of Dalton (Ga. App.), 
25 S.E. 2d 726, appeal dismissed, 320 U.S. 712, 88 L. Ed. 
418. In People v. Galpern (N.Y.), 181 N.E. 572, 574, it was 
said, under a New York statute making it unlawful to con­
gregate with others on a public street and refuse to move 
on when ordered by the police, that refusal to obey an 
order of a police officer, not exceeding his authority, to 
move on “even though conscientious — may interfere with 
the public order and lead to a breach of the peace,” and 
that such a refusal “can be justified only where the cir­
cumstances show conclusively that the police officer’s di­
rection was purely arbitrary and was not calculated in any 
way to promote the public order.” See also In re Neal, 164 
N.Y.S. 2d 549 (where the refusal of a school girl to leave 
a school bus when ordered to do so by the authorities was 
held to be disorderly conduct, largely because of its effect 
on the other children); Underhill, in the passage cited 
above, concludes that “failure to obey a lawful order of 
the police, however, such as an order to move on, may 
amount to disorderly conduct.” See also People v. Nixon 
(N.Y.), 161 N.E. 463; 27 C.J.S. Disorderly Conduct, Sec. 
1(4) f; annotation 65 A.L.R. 2d 1152; compare People v. 
Carcel (N.Y.), 144 N.E. 2d 81; and People v. Arko, 199 
N.Y.S. 402.

Appellants refused to leave the Park although requested 
to do so many times. A large crowd gathered around them 
and the Park employee who was making the requests, 
and seemed to “mill in and close in” so that the employee 
sent for the Baltimore County police. The police, at the 
express direction of the manager of the Park, asked the 
appellants to leave and again they refused, even when 
told they would be arrested if they did not. Admittedly 
they were then deliberately trespassing. That they in­
tended to continue to trespass until they were forcibly 
ejected is made evident by their conduct when told they 
were under arrest. The five joined arms as a symbol of



11a

united defiance and then two of the men dropped to the 
ground. Two of the appellants had to be carried from 
the Park, the other three had to be pushed and shoved 
through the crowd. The effect of the appellants’ behavior 
on the crowd is shown by the testimony that its mem­
bers spit and kicked and shouted threats and imprecations, 
and that the Park employees feared a mob scene was about 
to erupt. The conduct of appellants in refusing to obey 
a lawful request to leave private property disturbed the 
public peace and incited a crowd. This was enough to 
sustain the verdict reached by Judge Menchine.

We turn to appellants’ argument that the arrest by the 
County police constituted State action to enforce a policy 
of segregation in violation of the ban of the Equal Protec­
tion and Due Process clauses of the Fourteenth Amendment 
against State-imposed racial discrimination. The Supreme 
Court said in the racial covenant case of Shelley v. Krae- 
mer, 334 U.S. 1, 13, 92 L. Ed. 1161, 1180: “The action in­
hibited by the first section of the Fourteenth Amendment 
is only such action as may fairly be said to be that of the 
States. That Amendment erects no shield against merely 
private conduct, however discriminatory or wrongful” . 
The Park had a legal right to maintain a business policy of 
excluding Negroes. This was a private policy which the 
State neither required nor assisted by legislation or admin­
istrative practice. The arrest of appellants was not because 
the State desired or intended to maintain the Park as a 
segregated place of amusement; it was because the appel­
lants were inciting the crowd by refusing to obey valid 
commands to move from a place where they had no lawful 
right to be. Both white and colored people acted in a dis­
orderly manner and the State, without discrimination, 
arrested and prosecuted all who were so acting.

While there can be little doubt that the Park could 
have used its own employees to eject appellants after they 
refused to leave, if it had attempted to do so there would 
have been real danger the crowd would explode into riotous 
action. As Judge Thomsen said in Griffin v. Collins, 187 F. 
Supp. 149, 153, in denying a preliminary injunction and



12a

a summary judgment in a suit brought to end the segre­
gation policy of the Glen Echo Amusement Park near 
Washington: “Plaintiffs have cited no authority holding 
that in the ordinary case, where the proprietor of a store, 
restaurant, or amusement park, himself or through his 
own employees, notifies the Negro of the policy and orders 
him to leave the premises, the calling in of a peace officer 
to enforce the proprietor’s admitted right would amount 
to deprivation by the state of any rights, privileges or 
immunities secured to the Negro by the Constitution or 
laws. Granted the right of the proprietor to choose his 
customers and to eject trespassers, it can hardly be the 
law, as plaintiffs contend, that the proprietor may use 
such force as he and his employees possess but may not 
call on a peace officer to enforce his rights.”

The Supreme Court has not spoken on the point since 
Judge Thomsen’s opinion. The issue was squarely pre­
sented for decision in Boynton v. Virginia, 364 U.S. 454, 
5 L. Ed. 2d 206, but the Court chose to decide the case on 
the basis that the conviction of a Negro for unlawfully 
remaining in a segregated bus terminal restaurant vio­
lated the Interstate Commerce Act, which uses broad 
language to forbid a carrier from discriminating against 
a passenger. In the absence of controlling authority to 
the contrary, it is our opinion that the arresting and con­
victing of appellants on warrants sworn out by the Park 
for disorderly conduct, which resulted from the Park en­
forcing its private, lawful policy of segregation, did not 
constitute “such action as may fairly be said to be that of 
the States.” It was at least one step removed from State 
enforcement of a policy of segregation and violated no 
constitutional right of appellants.

Judgments A ffirmed, W ith Costs.



13a

APPENDIX C
Memorandum Opinion of Circuit Court for 

Baltimore County

(Filed May 6,1960)
Unreported

The facts of the case are not in serious dispute. On 
Sunday, September 6, 1959, at the Gwynn Oak Amusement 
Park, located in Baltimore County, “All Nations Day” was 
being celebrated. It was a “right crowdy day * * *. There 
was just more or less elbow room when you walked any­
where in the park” (Tr. 48). The Park is privately owned 
by a corporation, known as Gwynn Oak, Incorporated. 
There is no evidence that there was any sign or signs to 
indicate that any particular segment of the population 
would not be welcome, so that for the purpose of this case 
it is assumed by the Court that there were no such signs.

At about 3 o’clock in the afternoon, a special officer em­
ployed by Gwynn Oak Park, Incorporated observed five 
persons in approximately the center of the Park, near 
the cafeteria and miniature golf course. This employee 
approached the group, consisting of three white and two 
colored persons, and advised them that the Park was closed 
to colored people, and that the colored people would have 
to leave (Tr. 19). It was explained that the management 
of the Park had a policy opposing the use of the Park by 
colored persons. The request that the colored persons leave 
was repeated four or five times (Tr. 21). All five persons 
were very polite (Tr. 22), but, in response to the request 
that they leave, one of the members of the group stated 
that he was enjoying himself, and that he thought he would 
stay and look around. The first request to leave was di­
rected to the two colored people, but when they refused 
to leave the whole group of five persons was asked to go, 
but all refused (Tr. 22).

There was no crowd surrounding the group at the time 
of the initial observation by the special officer, but the 
crowd began to congregate after the five persons were



14a

asked to leave the Park by the special officer (Tr. 37). The 
special officer sought the assistance of the Baltimore County 
Police, who were stationed at the entrance to the Park, 
after first confirming with the management of the latter’s 
desire to forbid the continued presence of colored persons 
upon the property. Upon such confirmation, the Baltimore 
County Police were summoned to the area where the five 
persons were and by the time of the arrival of the Balti­
more County Police a crowd had gathered (Tr. 47). The 
Baltimore County Police requested the group of five per­
sons to leave the Park two or three times before the arrest 
(Tr. 35). The period of time between the time of the initial 
request to leave and the time of actual arrest covered a 
period of about ten or fifteen minutes (Tr. 36).

Prior to the actual arrest, a good sized crowd gathered 
around and seemed to mill in and close in on the group 
and the police. The crowd was milling around and seemed 
very angry (Tr. 23), and seemed at the point where it 
would get out of control and became a mob scene (Tr. 26 
and 27).

In spite of the requests by the employee of the manage­
ment and the two or three requests by Baltimore County 
Police that the group leave the Park, the five persons stead­
fastly refused to move. They were thereupon placed under 
arrest and at that time joined their arms together. Two 
men in the group dropped to the ground in a prone or semi- 
prone position. All were escorted from the premises by the 
police with a degree of resistance. The resistance took 
the form in two instances of requiring the police physically 
to carry them; the resistance as to the other three took the 
form of merely holding back as they were being walked 
out of the Park.

On these facts the State has elected to bring this prosecu­
tion by way of criminal information on the statutory charge 
of disturbing the peace under Article 27, Section 123.

The reasonable inference exists that the group was not 
aware that the management had adopted a policy of bar­
ring persons because of color at the time of their entry



15a

upon the property. The evidence is clear, however, that 
this management policy became known to the accused 
through statements to them by an employee of the cor­
poration, and by the Baltimore County Police, before the 
arrest was made.

The first question which arises in the case is the ques­
tion whether an owner of private property to which sub­
stantial numbers of persons are invited has any right to 
discriminate with respect to persons invited thereon, that 
is to say, whether such owner may exercise his own arbi­
trary freedom of selection in determining who will be ad­
mitted to and who will be permitted to remain upon his 
property under circumstances where such private property 
is being used as a place of resort or amusement. This ques­
tion has been clearly answered in the affirmative by the 
authorities. In Madden v. Queens County Jockey Club, 72 
N.E. 2d 697 (Court of Appeals of New York), it was said 
at page 698:

“At common law a person engaged in a public call­
ing, such as innkeeper or common carrier, was held to 
be under a duty to the general public and was obliged 
to serve, without discrimination, all who sought serv­
ice. * * * On the other hand, proprietors of private en­
terprises, such as places of amusement and resort, were 
under no such obligation, enjoying an absolute power 
to serve when they please. * * *

“The common-law power of exclusion, noted above, 
continues until changed by legislative enactment.”

The ruling therein announced was precisely adopted in 
the case of Greenfeld v. Maryland Jockey Club, 190 Md. 96, 
the Court of Appeals, stating at Page 102 of its opinion 
that:

“The rule that, except in cases of common carriers, 
innkeepers and similar public callings, one may choose 
his customers is not archaic.”

The Court of Appeals also carefully pointed out in the 
Greenfeld case that the rule of the common law is not



16a

altered even in the case of a corporation licensed by the 
State of Maryland. The doctrine of the Madden and Green- 
feld cases, supra, announced as existing under the common 
law, has been held valid, even where the discrimination 
was because of race or color. See Williams v. Howard 
Johnson Restaurant, 268 F. 2d 845 (restaurant) (CCA 4th); 
Slack v. Atlantic White Tower Systems, Inc., No. 11073 
U.S.D.C. for the District of Maryland, Thomsen, J. (restau­
rant) ; Hackley v. Art Builders, Inc., et al. (U.S.D.C. for the 
District of Maryland, D.R. January 16, 1960 (real estate 
development)).

The right of an owner of property arbitrarily to restrict 
its use to invitees of his selection is the established law 
of Maryland. Changes in the rule of law conferring that 
right are for the legislative and not the judicial branch 
of government.

The question next arises as to whether or not the State 
has proved its case under the criminal information on 
which it elected to proceed. It is a fundamental of our law 
that the burden rests upon the State to establish guilt 
beyond a reasonable doubt and to a moral certainty, and 
this requirement extends to every element of the crime 
charged. Basically, therefore, consideration must be given 
to a determination of two questions: (1) Has the State 
proved beyond a reasonable doubt that the Defendants 
were acting in a disorderly manner to the disturbance of 
the public peace? (3) If the answer to the first question 
is in the affirmative, has the State proved beyond a reason­
able doubt that such actions occurred at a place of public 
resort or amusement?

As to the first question — an able discussion of whether 
a refusal to comply with directions given by a police officer 
could be held to be disorderly conduct appears in the case 
of People v. Arko, 199 N.Y.S. 402, in which it was said at 
page 405:

“At times even a mere refusal to comply with the 
directions of a policeman, who may act in an arbitrary 
and unjustifiable way, does not constitute ‘disorderly



17a

conduct’. Mere disobedience of an officer is not always 
an offense punishable by law, any more than his com­
mand is not always the law. There must be, upon the 
whole case, something more than a mere whimsical 
or capricious judgment on the part of the public au­
thorities. * * * The case must present proof of some 
definite and unmistakable misbehavior, which might 
stir if allowed to go unchecked, the public to anger or 
invite dispute, or bring about a condition of unrest and 
create a disturbance.”

In the case of People v. Nixon, 161 N.E. 463 (N.Y.), it 
was said at page 466:

“Police officers are guardians of the public order. 
Their duty is not merely to arrest offenders, but to 
protect persons from threatened wrong and to prevent 
disorder. In the performance of their duties they may 
give reasonable directions.”

In the case of People v. Galpern, 181 N.E. 572 (N.Y.), it 
was said at page 572:

“Failure, even though conscientious, to obey direc­
tions of a police officer, not exceeding his authority, 
may interfere with the public order and lead to a 
breach of the peace.”

And, at page 574, went on to say:
“A refusal to obey (a police order to leave) can be 

justified only where the circumstances show conclu­
sively that the police officer’s direction was purely 
arbitrary and not calculated in any way to promote 
the public order.”

The facts and circumstances hereinbefore stated offer 
clear and convincing proof that public disorder reasonably 
could be expected to follow if the five persons remained in 
the Park. The order of the police to leave, therefore, was 
not arbitrary. The refusal of the Defendants to leave upon 
request of the police, under the circumstances described



18a

in the evidence, constituted acting in a disorderly manner 
to the disturbance of the public peace.

We pass then to the second question: Did such action 
occur at a place of public resort or amusement? This in­
volves a determination of the legislative meaning of the 
expression “place of public resort or amusement” . If the 
legislative intent was that the words were intended to apply 
only to publicly owned places of resort or amusement, then, 
manifestly, the testimony would not support a conviction 
here. By the same token, if the expression was intended 
to apply only to places in which all members of the public 
without exception were authorized or permitted to con­
gregate, again there would be no evidence to support con­
viction here. On the other hand, if the reasonable intent 
and purpose of the quoted phrase was to prohibit disorderly 
conduct in a place where some segment of the public habit­
ually gathers and congregates, the evidence would clearly 
justify a conviction.

The first suggested interpretation of the words must be 
rejected, because of the fact that the same statute uses 
the term “public worship” , and this fact utterly destroys 
a contention that the word “public” has a connotation of 
public ownership because of our constitutional separation 
of church and state.

The second suggested interpretation is equally invalid, 
because its effect, in the light of the rule of law announced 
in the Greenjeld case, supra, would be the precise equiva­
lent of the first suggested interpretation of the phrase. 
Moreover, such an interpretation necessarily would mean 
that the police authorities would be powerless to prevent 
disorder or bring an end to conditions of unrest and poten­
tial disturbance where large numbers of the public may be 
in congregation. To suggest such an interpretation is to 
refute it.

In the opinion of this Court the statute has clear applica­
tion to any privately owned place, where crowds of persons 
other than the owner of the premises habitually gather and 
congregate, and where, in the interest of public safety,



19a

police authorities lawfully may exercise their function of 
preventing disorder. See Askew v. Parker, 312 P. 2d 342 
(California). See also State v. Lanouette, 216 N.W. 870 
(South Dakota).

It is the conclusion of the Court that the Defendants are 
guilty of the misdemeanor charged.

W. A lbert Menchine, 
Judge.

Towson, Maryland 
May 6,1960

APPENDIX D

Relevant Constitutional and Statutory Provisions 

Amendment I of the United States Constitution:
“Congress shall make no law respecting an estab­

lishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble, 
and to petition the Government for a redress of griev­
ances.”

Amendment XIV of the United States Constitution:
“Section 1. All persons born or naturalized in the 

United States and subject to the jurisdiction thereof, 
are citizens of the United States and of the State where­
in they reside. No State shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

* * * * * *



20a

“ Section 5. The Congress shall have power to en­
force, by appropriate legislation, the provisions of this 
article.”

Section 123 of Article 27 of the Annotated Code of Mary­
land (1957 edition):

“Every person who shall be found drunk, or acting 
in a disorderly manner to the disturbance of the public 
peace, upon any public street or highway, in any city, 
town or county in this State, or at any place of public 
worship or public resort or amusement in any city, 
town or county of this State, or in any store during 
business hours, or in any elevator, lobby or corridor 
of any office building or apartment house having more 
than three separate dwelling units in any city, town 
or county of this State, shall be deemed guilty of a 
misdemeanor; and, upon conviction thereof, shall be 
subject to a fine of not more than fifty dollars, or be 
confined in jail for a period of not more than sixty 
days or be both fined and imprisoned in the discretion 
of the court; . .

Title II of the Federal Civil Rights Act of 1964, 78 Stat. 
241:

“Section 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 section, 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:

“ (1) any inn, hotel, motel, or other establishment 
which provides lodging to transient guests, other 
than an establishment located within a building



21a

which contains not more than five rooms for rent or 
hire and which is actually occupied by the pro­
prietor of such establishment as his residence;

“ (2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility principally 
engaged in selling food for consumption on the 
premises, including, but not limited to, any such 
facility located on the premises of any retail estab­
lishment; or any gasoline station;

“ (3) any motion picture house, theater, concert 
hall, sports arena, stadium or other place of ex­
hibition or entertainment; and

“ (4) any establishment (A) (i) which is physi­
cally located within the premises of any establish­
ment otherwise covered by this subsection, or (ii) 
within the premises of which is physically located 
any such covered establishment, and (B) which 
holds itself out as serving patrons of such covered 
establishment.

“ (c) The operations of an establishment affect com­
merce within the meaning of this title if (1) it is one of 
the establishments described in paragraph (1) of sub­
section (b);  (2) in the case of an establishment de­
scribed in paragraph (2) of subsection (b ), it serves or 
offers to serve interstate travelers or a substantial por­
tion of the food which it serves, or gasoline or other 
products which it sells, has moved in commerce; (3) 
in the case of an establishment described in paragraph 
(3) of subsection (b), it customarily presents films, 
performances, athletic teams, exhibitions, or other 
sources of entertainment which move in commerce; 
and (4) in the case of an establishment described in 
paragraph (4) of subsection (b), it is physically lo­
cated within the premises of, or there is physically 
located within its premises, an establishment the op­
erations of which affect commerce within the meaning 
of this subsection. For purposes of this section, “com­
merce” means travel, trade, traffic, commerce, trans­



22a

portation, or communication among the several States, 
or between the District of Columbia and any State, or 
between any foreign country or any territory or pos­
session and any State or the District of Columbia, or 
between points in the same State but through any other 
State or the District of Columbia or a foreign country.

“ (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 
custom 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.

“ (e) The provisions of this title shall not apply to a 
private club or other establishment not in fact open to 
the public, except to the extent that the facilities of 
such establishment are made available to the customers 
or patrons of an establishment within the scope of sub­
section (b).

“ Sec. 202. All persons shall be entitled to be free, at 
any establishment or place, from discrimination or 
segregation of any kind on the ground of race, color, 
religion, or national origin, if such discrimination or 
segregation is or purports to be required by any law, 
statute, ordinance, regulation, rule, or order of a State 
or any agency or political subdivision thereof.

“ Sec. 203. No person shall (a) withhold, deny, or 
attempt to withhold or deny, or deprive or attempt to 
deprive, any person of any right or privilege secured 
by section 201 or 202, or (b) intimidate, threaten, or 
coerce, or attempt to intimidate, threaten, or coerce 
any person with the purpose of interfering with any 
right or privilege secured by section 201 or 202, or (c ) 
punish or attempt to punish any person for exercising 
or attempting to exercise any right or privilege se­
cured by section 201 or 202.”