Hamm v. City of Rock Hill Brief of Petitioners
Public Court Documents
January 1, 1964
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Brief Collection, LDF Court Filings. Hamm v. City of Rock Hill Brief of Petitioners, 1964. 2f72d346-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ad58d911-7c5d-404f-b695-dcff5880144f/hamm-v-city-of-rock-hill-brief-of-petitioners. Accessed April 30, 2025.
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IN THE
n p n m ? (E u u r t a t % I n t t e f c S t a t e s
OCTOBEB TERM, 1964
No. 2
ARTHUR HAMM, JR.,
CITY OF ROCK HILL.
Petitioner,
No. 5
FRANK JAMES LUPPER, et al.,
ARKANSAS.
Petitioners,
ON WRITS OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF
SOUTH CAROLINA AND THE SUPREME COURT OF THE STATE OF ARKANSAS
B R I E F F O R P E T I T I O N E R S
J ack Greenberg
Constance Baker Motley
J ames M. Nabrit, I I I
Suite 2030
10 Columbus Circle
New York 19, New York
Charles L. B lack, J r.
346 Willow Street
New Haven, Connecticut
Matthew J . P erry
L incoln C. J enkins
1107% Washington Street
Columbia, South Carolina
Donald J ames Sampson
W illie T. Smith, J r.
125% Falls Street
Greenville, South Carolina
H arold B. A nderson
205 Century Building
Little Rock, Arkansas
Wiley A. Branton
119 E. Barraque
Pine Bluff, Arkansas
Attorneys for Petitioners
Of Counsel:
Anthony G. A msterdam F rank H eeeron
W illiam T. Coleman, J r. L eroy D. Clark
Marvin E. F rankel George B. Smith
Michael Meltsner
I N D E X
PAGE
Opinions Below ..... ....................... ........... __...._............. . 1
Jurisdiction ....... ...................... ................ ............. .....____ 2
Questions Presented......... ........................... 3
Constitutional Provisions, Statutes and Ordinance
Involved ............................................... 3
Statement ........................................... 7
1. Hamm v. City of Rock Hill .......... ....... ....... 7
2. Lupper et al. v. Arkansas ................................ 11
Summary of Argument ........... ...................................... 14
A rgum ent :
1. The Enactment of the Civil Rights Act of
1964, Subsequent to These Convictions But
While They Were Still Under Direct Review,
Makes Necessary Either Their Outright Re
versal or a Remand to the State Courts for
Consideration of That Act ............................ 18
A. The Civil Rights Act of 1964 Abates
These Prosecutions as a Matter of Fed
eral Law, and These Cases Should Be
Reversed on That Ground ................. . 18
B. The Least Possible Consequence in These
Cases, of the Rule Announced in Bell v.
Maryland Is Their Remand to the State
Courts, for Consideration There of the
Effect of the Enactment of the Federal
Civil Rights Act of 1964 ............................. 41
11
II. Petitioners’ Convictions Enforced Racial Dis
crimination in Violation of the Fourteenth
Amendment to the Constitution of the United
States ........... ..... ............................................ 46
A. The States of Arkansas and South Caro
lina Are Involved in the Acts of Racial
Discrimination Sanctioned in These Cases
Because Such Acts Were Performed in
Obedience to Widespread Custom, Which
in Turn Has Received Massive and Long-
Continued Support From State Law and
Policy................. ................ ........... ........... 46
B. The Employment of the State Judicial
Power, Together With State Police and
Prosecutors, to Enforce the Racial Dis
crimination Here Shown, Constituted
Such Application of State Power as to
Bring to Bear the Guarantees of the
Fourteenth Amendment............................ 51
C. The Obligation of These States Under
the Fourteenth Amendment Is an Affirma
tive One—the Affording of “Equal Pro
tection of the Laws.” That Obligation Is
Breached When, as Here, the State Main
tains a Regime of Law Which Denies to
Petitioners Protection Against Public Ra
cial Discrimination, and Instead, Subordi
nates Their Claim of Equality in the Com
mon and Public Life of the States to a
Narrow Property Claim, Enforcing the
Subordination by the Extreme Sanction
of the Criminal Law ................................ 57
PAGE
Ill
D. None of the Theories of “State Action”
Urged by Petitioners Needs to Result in
the Extension of Fourteenth Amendment
Guarantees to the Genuinely Private Con
cern of Individuals, for a Reasonable In
terpretation of the Substantive Guaran
tees of the Amendment Can and, Ought to
Prevent That Result ................................ 65
III. These Convictions Violate Due Process in
That There Was Inadequate Conformity Be
tween Definite Statutes and the Conduct
Proved.......... .............. 70
A. These Convictions in Both Cases Violated
Due Process of Law, in That They Were
Had Under Statutes Which, in the Pro
cedural and Evidentiary Context, Fail
to Designate as Criminal the Conduct
Proven, With the Clarity Required Under
Decisions of This Court ......................... 70
B. In the Hamm case, the Defendant Was
Denied Due Process of Law by the Re
fusal of the Prosecutor and Trial Judge to
Specify the Law Under Which He Was
Charged, by the Consequent Vagueness of
the Law Set Forth in the Instructions to
the Jury, and by the Variance Between
the Law Charged the Jury and the Law
on the Basis of Which the State Appel
late Courts Sustained Defendant’s Con
viction .................................... .............. 79
PAGE
A p p e n d ix ............................................................................ ................. l a
Civil Rights Act of 1964, Title II ..................... . la
IV
T able of Cases
page
Barr v. Columbia,-----U. S .----- , 12 L. Ed. 2d 766 38
Barrows v. Jackson, 346 U. S. 249 ............................. . 54
Bell v. Maryland,----- U. S .------ , 12 L. Ed. 2d 822 .... 14,
15, 23, 25, 26, 27, 28,
36, 39, 40, 41, 42, 43, 44,
46, 48, 52, 54, 55, 56, 58,
59, 61, 64, 66, 68, 69
Bouie v. Columbia,----- U. S .------ , 12 L. Ed. 2d 894 .... 45,
70, 71, 72, 76,
77, 78, 80, 82
Buchanan v. Warley, 245 U. S. 60 ________ _____ 59
Brown v. Board of Education, 347 U. S. 483 .............. 59
Burton v. Wilmington Parking Authority, 365 U. S.
715 ........................................................................ ....... 64
Cantwell v. Connecticut, 310 U. S. 296 .......... ............ . 83
Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943) 64
Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512
(1961) ______________ ___________ ___________ 82
Civil Rights Cases, 109 U. S. 3 .............................57, 64, 67
Cole v. Arkansas, 333 U. S, 196 .......... ..... ..... ..... ......... 83
Edwards v. South Carolina, 372 U. S. 229 .................. 83
Ex parte Virginia, 100 U. S. 339 ................................ 60
Garner v. Louisiana, 368 U. S. 157 ........... ...... .......77, 78, 83
Gibbons v. Ogden, 22 U. S. (9 Wheaton) 1 .................. 24
Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826
(1961), rev’d, 373 U. S. 244 ....................................49,82
Hauenstein v, Lynham, 100 U. S. 483 .............. .......35, 42, 45
Herndon v. Lowry, 301 U. S. 242 ............... ..... .......... 83
Hurd v. Hodge, 334 U. S. 24 .............. ......................... 53
PAGE
In re Eahrer, 140 U. S. 545 ....... ......................... ....... . 49
Kentucky v. Dennison, 65 U. S. (24 How.) 66 .............. 65
LeRoy Fibre Co. v. Chicago M. & St. P. Ry., 232 U. S.
340 ......... ..... .............................— .................. ........... 69
Louisville & Nashville R.R. v. Mottley, 211 IT. S. 149 .... 39
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951),
cert. den. 342 U. S. 831 ......... ........... ............... ..... .... 64
McCabe v. Atchison, Topeka & S. F. Ry. Co., 235 U. S
151 .......................................
McGhee v. Sipes, 334 U. S. 1............ ...........................
Marsh v. Alabama, 326 U. S. 501 ........... ............... ....
Martin v. Hunter’s Lessee, 14 U. S. (1 Wheat.) 304 ...
Moore v. United States, 85 Fed. 465 (8th Cir. 1898)
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) ...................... ........... ..... ............................. 39
NLRB v. Fainblatt, 306 U. S. 601 ................................ 21
Phelps Dodge v. NLRB, 113 F. 2d 202 (2d Cir. 1940),
modified and remanded on other grounds, 313 U. S.
177 (1941) .................................................................. 39
Peterson v. Greenville, 373 U. S. 244 ..........................49, 82
Robinson v. Florida,-----U. S .------ , 12 L. Ed. 2d 771 ..50, 51
Russell v. United States, 369 U. S. 749 ..................... 84
San Diego Building Trades Council, Millmen’s Union,
Local 2020, Building Material and Dump Drivers,
Local 36 v. Garmon, 359 U. S. 236 ............................ 25
Shelley v. Kraemer, 334 U. S. 1 ................. 16, 51, 52, 53, 54,
55, 56, 57, 65
64
54
59
59
28
V I
Shuttlesworth v. Birmingham, 376 U. S. 940 .......... . 83
Slaughter House Cases, 83 U. S. (16 Wall.) 36 ......... 60
Sola Elec. Co. v. Jefferson Elec. Co., 317 U. S. 173 .... 24
Spartanburg v. Winters, 233 S. C. 526, 105 S. E. 2d
703 (1958) .................................................... ............. 84
Sperry v. Florida, 373 U. S. 379 ................. ....... ........ . 24
State v. Cole, 2 McCord 1 (S. C. 1822) .....................37, 38
State v. Moore, 128 S. C. 192, 122 S. E. 672 (1924) ....43,44
Strauder v. West Virginia, 100 IJ. S. 303 ................. 61
Stromberg v. California, 283 IT. S. 359 ...... .............. 78, 82
Taylor v. Louisiana, 370 U. S. 154.......... ...................... 83
Terminiello v. Chicago, 337 U. S. 1 .............. ................. 83
Terry v. Adams, 345 IT. S. 461 ..................... 52, 59, 63, 64, 67
Testa v. Katt, 330 U. S. 386 .................. ........................ 45
Thornhill v. Alabama, 310 IJ. S. 88 ....... ..... ...... .....78, 83
Thompson v. Louisville, 362 U. S. 199 .......70, 77, 78, 82, 83
United States v. California, 297 U. S. 175 ____ 40
United States v. Chambers, 291 U. S. 217.................... 25
United States v. Cruikshank, 92 U. S. 542 .................... 64
United States v. Darby, 312 U. S. 100 ....................... 21
United States v. Taylor, 123 F. Supp. 920 (S. D. N. Y.
1954) ................. .................................................... ..... 28
United States v. Tynen, 78 U. S. (11 Wall.) 88 .......... 25
Van Beeck v. Sabine Towing Co., 300 U. S. 342 .......... 25
Wickard v. Filburn, 317 U. S. I l l ................................ 21
Williams v. North Carolina, 317 U. S. 287 ............. . 82
Winters v. New York, 333 U. S. 507 ................ ............ 78
Wright v. Georgia, 373 U. S. 284 ........................ .......45, 83
PAGE
Vll
F ederal S tatutes
page
Civil Rights Act of 1964, 78 Stat. 241 ...A,14,18,19, 20, 21,
22, 23, 25, 26, 27, 28,
30, 31, 32, 33, 34, 35,
36, 37, 38, 39, 40, 41,
42, 44, 45, 50, 69
Civil Rights Act of 1866, 14 Stat, 27, 42 IT. S. C. §1982
(1952) .................. ...................... ...............................53,56
National Labor Relations Act, §8(a)(1), 8(a)(3), 49
Stat. 452 (1935), 29 U. S. C. §158 a(l), a(3) (1952) .. 40
1 U. S. C. §§1, 101-104, 108 ........... .............................. 29
1 IT. S. C. §109 ........................................ ....4,14,26,29,33,
35, 36, 38, 41
S tate S tatutes
Ark. Stat. §1-103 (1947) ................. .......... ................. 6,42
Ark. Stat. §1-104 (1947) ............... ...........................6,7,43
Ark. Stat. §41-1432 (Act 226 of 1959) .....................12,13
Ark. Stat. §41-1433 (Act 14 of 1959) .............. 6,13, 71, 73,
75, 76, 77, 78
Ark. Stat. Ann. §73-1218 (1957) ...................... 47
Ark. Stat. Ann. §73-1614 (1957) .............. 47
Ark. Stat. Ann. §73-1747 (1957) ........................... 47
Ark. Stat. Ann. §76-1119 (1957) ........................... 47
Ark. Stat. Ann. §80-509 (1960) .................. 47
Ark. Stat. §80-544 (Acts of 1958, 2d Ex. Sess.) . 47
Ark. Stat. §80-2401 (1960) ...................................... 47
Ark. Stat. §84-2724 (1960) ..................... 47
PAGE
Ark. Stat. Ann. §§144, 145 (1947)
Ark. Stat. Ann. §80-2401 (1960)
City of Rock Hill Code of Laws, §19-12 .....5, 9, 79, 80,
1 Maryland Code §3 (1957) ................................ ......
S. C. Acts and Joint Resolutions 1956, No. 914 ......
S. C. Code §5-19 (1962) ................. ............. ...............
S. C. Code §16-386 (1952 as amended 1954) 4,9,80,
S. C. Code §16-388 (1952 as amended 1960) ......5,9,10,
73, 75, 76, 77,
80, 81, 82, 83,
S. C. Code §21-751 (1962) ............... ..... .....................
S. C. Code §22-3 (1962) _______________________
S. C. Code §40-452 (1962) ................. .......-.................
S. C. Code §51-2.1 (1962) ................................. ...........
S. C. Code §§55-1, 55-2 (1962) ........................ ..........
S. C. Code §58-551 (1962) ........ ..................................
S. C. Code §§58-714, 58-719, 58-720 (1962) ..................
S. C. Code §§58-1331, 58-1340 (1962) ..........................
Ya. Code §18.1-173 (1960) .............. ..................... .......
Ot h er A u tho rities
Brief for Respondents, Shelley v. Ivraemer, 334 U. S. 1
Brief for the United States as Amicus Curiae, Bell
v. Maryland,-----U. S .------ , 12 L. Ed. 2d 822 ......
Cong. Globe, 41st Cong., 2d Sess. 2464 (1870) ..........
Cong. Globe, 41st Cong., 3rd Sess. 775 (1871) ............
viii
47
47
,82
42
47
47
,82
72,
78,
84
48
48
48
48
47
47
47
47
75
54
58
29
29
IX
110 Cong. Rec. 1456-7 (daily ed. Jan. 31, 1964) ........... 21
110 Cong. Rec. 9162-3 (daily ed. May 1, 1964) _____22, 23
110 Cong. Rec. 12999 (daily ed. June 11, 1964) _____ 32
Faubus, Inaugural Address, 4 Race Rel. L. Rep. 179
(1959) ...................................... ..... .............................. 47
Hearings Before Subcommittee No. 5 of the House
Committee on the Judiciary, 88th Cong., 1st Sess.
ser. 4, pt. 1 (1963) .................................................. . 20
Henkin, Shelley v. Kraemer: Notes for a Revised Opin
ion, 110 U. Pa. L. Rev. 473 (1962) .......... ..............66, 67
House Judiciary Committee Report on the Civil Rights
Act, H. R. Report No. 914, 88th Cong., 1st Sess.
(1963) .................... .............................................20,30,31
Million, Expiration or Repeal of a Federal or Oregon
Statute as a Bar to Prosecution for Violations
Thereunder, 24 Ore. L. Rev. 25 (1944) .............. ...... 29
New English Dictionary ...... ............. ..... .......... .......... 30
Note, 109 U. Pa. L. Rev. 67 (1960) ................... ......... 83
Record in McGee v. Sipes, 334 U. S. 1 ...................... . 54
Webster’s New International Dictionary, 2d ed......... 30
PAGE
I n t h e
(£mtt nl H i t I n t t ^ S t a t e s
O ctober T erm , 1964
No. 2
A r t h u r H am m , J r .,
—v.—
C ity of R ock H il l .
Petitioner,
No. 5
F rank J ames L u ppe r , et al.,
—v.
Petitioners,
A rkansas.
o n w r i t s o f c e r t i o r a r i t o t h e s u p r e m e c o u r t o f t h e s t a t e o f
SOUTH CAROLINA AND TH E SUPREM E COURT OF TH E STATE OF ARKANSAS
BRIEF FOR PETITIONERS
O pinions Below
1. Hamm v. Rock Hill. The opinion of the Supreme Court
of South Carolina (R. Hamm 101) is reported at 241 S. C.
446, 128 S. E. 2d 907 (December 6, 1962). The order of the
Sixth Judicial Circuit Court of York County, December
29, 1961, is unreported (R. Hamm 96). The oral sentenc-
2
ing of the defendant in the Rock Hill Recorder’s Court,
June 29, 1960, is unreported (R. Hamm 96).
2. Lupper v. Arkansas. The opinion of the Supreme
Court of Arkansas (R. Lupper 76) is reported a t ----— Ark.
, 367 S. W. 2d 750 (May 13, 1963). The supplemental
opinion denying rehearing of the Supreme Court of Ar
kansas (R. Lupper 89) is reported at ----- A rk .------ , 367
S. W. 2d 760 (June 3, 1963). The Pulaski County Circuit
Court delivered no opinion (R. Lupper 75). The jury fixed
the sentences (R. Lupper 74).
Jurisdiction
1. Hamm v. Rock Hill. The final judgment of the Su
preme Court of South Carolina, which is the order denying
rehearing, was entered on January 11, 1963 (R. Hamm
106). The petition for certiorari was filed April 10, 1963,
and granted June 22, 1964 (R, Hamm 108).
2. Lupper v. Arkansas. The final judgment of the Su
preme Court of Arkansas, which is the order denying re
hearing, was entered June 3, 1963 (R. Lupper 89). The
petition for certiorari was filed September 3, 1963, and
granted June 22, 1964 (R. Lupper 91).
The jurisdiction of this Court in each of these cases is
invoked pursuant to 28 U. S. Code §1257(3), petitioners
having asserted below and here the denial of rights, privi
leges and immunities secured by the Fourteenth Amend
ment to the Constitution of the United States.
Questions Presented
1. Does the Federal Civil Rights Act of 1964 compel the
reversal of these convictions, as a matter of federal law!
2. Must these cases be remanded to the state courts, for
consideration there of the effect of the Federal Civil Rights
Act?
3. Do these convictions result in the enforcement of
racial discrimination against petitioners, with such ad
mixture of state action” as to bring to bear the guarantees
of the Fourteenth Amendment?
4. Can these convictions stand against due process vague
ness objections, in view of the fact that the conduct shown
in the record does not fall within the language of the stat
utes applied?
5. Did the refusal of the trial judge to require the prose
cutor in the Hamm case to specify the law under which the
defendant was charged, the consequent indefinite form of
the jury instructions, and the varying statutory grounds on
which Hamm’s conviction was affirmed by the state appel
late courts, deprive petitioner of due process of law?
Constitutional Provisions, Statutes and
Ordinance Involved
1. This case involves the following provisions of the
Constitution of the United States:
Article 1, Section 8, Clause 3;
Article VI, paragraph 2;
The Fourteenth Amendment.
4
2. This case also involves the following statutes of the
United States:
Civil Rights Act of 1964, Title II, 78 Stat. 243-246, set
forth, infra, at p. l a ;
1 U. S. C. §109, 61 Stat. 635:
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 lia
bility incurred under such statute, unless the repeal
ing 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 enforcement of such penalty, forfeiture, or
liability. The expiration of a temporary statute shall
not have the effect to release or extinguish any pen
alty, forfeiture, or liability incurred under such stat
ute, unless the temporary statute shall so expressly
provide, and such statute shall be treated as still re
maining in force for the purpose of sustaining any
proper action or prosecution for the enforcement of
such penalty, forfeiture, or liability.
3. This case also involves the following South Carolina
Statutes and Ordinance of the City of Rock Hill:
Section 16-386, Code of Laws of South Carolina, 1952,
as amended 1954:
Entry on another’s pasture or other lands after no
tice; posting notice
Every entry upon the lands of another where any
horse, mule, cow, hog or any other livestock is pas
tured, or any other lands of another, after notice from
the owner of tenant prohibiting such entry, shall be a
misdemeanor and be punished by a fine not to exceed
5
one hundred dollars, or by imprisonment with hard
labor on the public works of the county for not ex
ceeding thirty days. When any owner or tenant of any
lands shall post a notice in four conspicuous places on
the borders of such land prohibiting entry thereon, a
proof of the posting shall be deemed and taken as no
tice conclusive against the person making entry, as
aforesaid, for the purpose of trespassing.
Section 16-388, Code of Laws of South Carolina, 1952,
as amended 1960:
Any person:
(1) Who without legal cause or good excuse enters into
the dwelling house, place of business or on the
premises of another person, after having been
warned, within six months preceding, not to do so
or
(2) Who, having entered into the dwelling house, place
of business or on the premises of another person
without having been warned within six months
not to do so, and fails and refuses, without good
cause or excuse, to leave immediately upon being
ordered or requested to do so by the person in
possession, or his agent or representative, shall
on conviction, be fined not more than one hundred
dollars, or be imprisoned for not more than thirty
days.
Section 19-12, Code of Laws of the City of Rock Hill:
Entry on lands of another after notice prohibiting
the same
Every entry upon the lands of another, after notice
from the owner or tenant prohibiting the same, shall
be a misdemeanor. Whenever any owner or tenant of
any lands shall post a notice in four conspicuous places
6
on the border of any land prohibiting entry thereon,
and shall publish once a week for four consecutive
weeks such notice in any newspaper circulating in the
county where such lands situate, a proof of the posting
and publishing of such notice within twelve months
prior to the entry shall be deemed and taken as notice
conclusive against the person making entry as afore
said for hunting and fishing.
4. This case also involves the following Arkansas Stat
utes :
Arkansas Statutes §41-1433 (Act 14 of 1959):
Any person who after having entered the business
premises of any other person, firm or corporation,
other than a common carrier, and who shall refuse to
depart therefrom upon request of the owner or man
ager of such business establishment, shall be deemed
guilty of a misdemeanor and upon conviction shall be
fined not less than fifty dollars ($50.00) nor more than
five hundred dollars ($500.00), or by imprisonment not
to exceed thirty (30) days, or both such fine and im
prisonment.
Arkansas Statutes, §1-103 (1947) :
Repeal of criminal or penal statute—Effect on Of
fenses Committed.-—When any criminal or penal stat
ute shall be repealed, all offenses committed or for
feitures accrued under it while it was in force shall be
punished or enforced as if it were in force, and not
withstanding such repeal, unless otherwise expressly
provided in the repealing statute. [Act Dec. 21, 1846,
§1, p. 93; C. & M. Dig., §9758; Pope’s Dig., 13283.]
Arkansas Statutes, §1-104 (1947):
Existing actions not affected hy repeal.—No action,
plea, prosecution or proceeding, civil or criminal, pend-
7
ing at the time any statutory provision shall be re
pealed, shall be affected by such repeal, but the same
shall proceed in all respects as if such statutory provi
sion had not been repealed, (except that all proceed
ings had after the taking effect of the revised statutes,
shall be conducted according to the provisions of such
statutes, and shall be in all respects, subject to the
provisions thereof, so far as they are applicable).
[Rev. Stat., ch. 129, §31; C. & M. Dig., §9759; Pope’s
Dig., §13284.]
Statement
1. H amm v. City of Rock Hill
Petitioner Hamm, a Negro college student, and Reverend
C. A. Ivory, a Negro minister, were arrested for a sit-in
demonstration at the lunch counter of McCrory’s variety
store in Rock Hill, South Carolina on June 7, 1960. They
were convicted of “trespass” and sentenced to pay a fine
of $100 or spend 30 days in jail (R. Hamm 1, 2). Rev.
Ivory died during the appeal of the convictions (R. Hamm
98).
On June 7, 1960 Hamm and Rev. Ivory entered
McCrory’s Dime Store (R. Hamm 67, 68), a retail national
chain store, open to the public at large (R. Hamm 59, 60,
61, 66, 68). After purchasing several items in the store,
they decided to order coffee at the lunch counter (R. Hamm
69, 70, 76). The lunch counter is one of 20 counters in the
store and is separated from the adjoining counter solely
by an aisle (R. Hamm 58). Hamm seated himself on
a stool, and Rev. Ivory, a cripple, remained in his wheel
chair next to the counter (R. Hamm 12, 13, 28). Although
Hamm and Rev. Ivory were orderly and neatly dressed
(R. Hamm 20, 64, 65, 71, 72) the manager of the store,
8
H. C. Whiteaker, told them that “he could not serve them”
(R. Hamm 63). Mr. Whiteaker, under questioning by de
fendant’s counsel, clearly specified that the store’s policy
was that of not serving Negroes seated at the lunch counter
(R. 59-64):
Q. Now, I believe, is it true that you invite members
of the public to come into your store? A. Yes, it is
for the public.
* # >X< # #
Q. The policy of your store as manager is not to
exclude anybody from coming in and buying these
three thousand items on account of race, nationality
or religion, is that right? A. The only place where
there has been exception, where there is an exception,
is at our lunch counter.
# # * #
Q. I see. Now, sir, if I may ask you, what is the
basis of this policy as to the lunch counter; first, I
want to know as to race, religion and nationality. What
is the basis of it ? A. Since I have been here, which is,
the restaurant has been open nine years, we have not
served a Negro seated at the lunch counter (R. Hamm
59).
Negroes were welcome in all other parts of the store and
could buy food to “take out” at the end of the counter
(R. Hamm 60, 61). This policy of segregation at lunch
counters in places of public accommodation was in conform
ity with the custom of the community (R. Hamm 23, 61).
Q. Oh, I see, but generally speaking, you consider
the American Negro as part of the general public, is
that right, just generally speaking? A. Yes, sir.
Q. You don’t have any objections for him spending
any amount of money he wants to on these 3,000 items
9
do you? A. That’s up to him to spend if he wants to
spend.
Q. This is a custom, as I understand it, this is a
custom instead of a law that causes you not to want
him to ask for service at the lunch counter? A. There
is no law to my knowledge, it is merely a custom in
this community (E. Hamm 61).
After the arrival of two police officers, the manager asked
Hamm and Eev. Ivory to leave the lunch counter (R. Hamm
64). It is not clear whether the manager made the request
with or without the prompting of the police officers (R.
Hamm 71, 77). Rev. Ivory insisted upon a refund for the
purchases that he had made in other parts of the store.
The testimony is conflicting as to whether Rev. Ivory re
fused to leave or whether he merely insisted upon a refund
before leaving and was arrested before the manager indi
cated the place for refund (R. Hamm 14, 15, 22, 29, 30, 31,
32, 71, 79).
Rev. Ivory was tried for trespass in the Recorders Court
in the City of Rock Hill on June 29, 1960. The prosecuting
attorney relied on three state and city “trespass” stat
utes, S.C. Code §16-386, S.C. Code §16-388 (2), Code City
of Rock Hill §19-12, and “any other sections” (R. Hamm 7).
Petitioner Hamm’s case was submitted to the jury on the
Ivory record (R. Hamm 1). Defendants filed timely mo
tions raising Fourteenth Amendment due process and equal
protection objections during and after the trial (R. Hamm
34-53, 80-81). The jury returned a general verdict of guilty
and defendants were sentenced to pay a fine of $100 or
serve 30 days in prison. On December 29, 1961 the con
victions were affirmed along with several breach of the
peace convictions and other trespass convictions in the
Sixth Judicial Circuit Court of York County. The Court
1 0
did not specify which, statute applied to the Hamm case,
but did not distinguish the trespass charge in Hamm’s
case from a trespass charge in a case arising before enact
ment of the 1960 trespass law S.C. Code §16-388 (2).
On December 6,1962, the Supreme Court of South Carolina
affirmed the conviction of Hamm (R. Hamm 101) on the
basis of S.C. Code §16-388 (2) (1960 trespass law). That
Court concluded:
There is nothing substantial in the objection that the
City Recorder refused to require the City of Rock Hill
to elect the particular statute upon which the prosecu
tion was based. The warrant charged a single offense
of trespass and the Recorder submitted to the jury
only the question of whether the appellant was guilty
of trespass as such was defined in the statute here
tofore cited. There was no prejudice to the appellant.
The record shows that the appellant and the Rev.
C. A. Ivory are Negroes. It was the policy of McCrory’s
store not to serve Negroes at its lunch counter. The
appellant asserts by exceptions 3, 4 and 5 that his
arrest by the police officers of the City of Rock Hill
and his conviction of trespass that followed was in
furtherance of an unlawful policy of racial discrimina
tion and constituted State action in violation of his
rights to due process and equal protection of the laws
under the Fourteenth Amendment to the United States
Constitution. Identical contention was made, con
sidered and rejected in the cases of City of Greenville
v. Peterson, et al., 239 S.C. 298, 122 S. E. 2d 826; City
of Charleston v. Mitchell, et al., 239 S.C. 376, 123 S. E.
(2d) 512; City of Columbia v. Barr et al., 239 S.C. 395,
123 S. E. (2d) 521, and City of Columbia v. Bouie,
et al., 239 S.C. 570, 124 S. E. 2d 332, in each of which
1 1
was involved a sit-down demonstration similar to that
disclosed by the nncontradicted evidence here, at a
lunch counter in a place of business privately owned
and operated, as was MeCrory’s in the case at bar
(R. Hamm 105).
Rehearing was denied on January 11, 1963 (R. Hamm 106).
2. L upper et al. v. Arkansas
Petitioners Frank James Luppera and Thomas Robinson
were arrested and convicted of trespass for participation
in a “sit-in” demonstration in the luncheon area of the Blass
Department Store in Little Rock, Arkansas.
On the afternoon of April 13, 1960, police officer Baer
followed a group of Negroes, including petitioner Thomas
Robinson, when he saw them entering the Blass Depart
ment Store (R. Lupper 36, 38). When he observed their
seating themselves in the mezzanine luncheon area he left
the store and reported his observations to police head
quarters (R. Lupper 37). Two other police officers were
sent by headquarters to join officer Baer (R. Lupper 37).
When the three officers were across the street from the
store they were approached by two store managers, whom
they accompanied back to the store upon being told that
“they had some colored boys” (R. Lupper 26, 27). The
petitioners were found on the main floor of the department
store (R. Lupper 32, 33). The managers pointed them out
to the police as two of a group of five or more Negroes
who had sought service in the luncheon area and failed to
a The opinion of the Supreme Court of Arkansas uses the name
“James Frank Lupper.” The brief herein uses the name Frank
James Lupper as that is petitioner’s true name (R. Liipper 53).
1 2
leave after being refused service (R. Lupper 32, 33, 42, 46).b
The officers testified they arrested petitioners after peti
tioners admitted they had refused to leave the luncheon
area upon the manager’s request (R. Lupper 29). None of
the officers had seen the petitioners refuse to leave the
luncheon area, and as one stated, the arrests had been made
solely because the managers had asked to “get them out
from the lunch counter” (R. Lupper 29, 35, 38).
The store was open to the general public0 and the
luncheon area was operating at the hour petitioners were
seeking service (R. Lupper 47). One manager noted that
it was his “busiest time” and he “expected a good many
people” (R. Lupper 47). Negroes who sought service in the
luncheon area, however, were told by the manager, “we are
not prepared to serve you at this time and will you kindly
excuse yourself” (R. Lupper 42). No objection was made
to the demeanor of appellants as the managers testified
that they were not loud, boisterous or disrespectful at any
time and were “neatly dressed” (R. Lupper 42, 48).a
The petitioners, two Negro students at a local college,
were regularly served in areas of the department store
other than the luncheon area, petitioner Lupper testifying
that his mother held a charge account with the store for
some 19 to 20 years (R. Lupper 54, 59, 61, 62). Petitioners
indicated that as they were regular customers in the store
they thought they should be served in the luncheon area
also (R. Lupper 54, 57, 62, 64).
b Petitioner Robinson claimed he had not been told to leave, for
after arriving in the mezzanine he had turned and left when he
saw the other Negro youths leaving (R. Lupper 61, 64-65).
0 In addition to trespass, petitioners were charged under the
breach of the peace statute which covers only a “public place of
business.” Section 41-1432, Arkansas Statutes (Section 1 of Act 226
of 1959).
a This fact dictated reversal of petitioners’ convictions of breach
of the peace by the Supreme Court of Arkansas (R. Lupper 79, 81).
13
Petitioners were charged with breach of the peace in vio
lation of Section 41-1432, Arkansas Statutes (Section 1
of Act 226 of 1959) and with refusal to leave a business
establishment after request in violation of Section 41-1433,
Arkansas Statutes (Section 1 of Act 14 of 1959).
They were tried on April 21, 1960 in the Municipal Court
of Little Rock and convicted on both charges (R. Lupper
1, 2). Thereupon they appealed to the Pulaski County
Circuit Court, where trial was had before a jury on June
17, 1960. Each was again convicted on both charges and
each received a fine of $500.00 and 6 months’ imprisonment
on the Act 226 violation and a fine of $500.00 and 30 days’
imprisonment on the Act 14 violation (R. Lupper 74).
Thereafter, the petitioners took an appeal to the Supreme
Court of Arkansas. This appeal was consolidated for brief
ing with Briggs v. State (No. 4992) and Smith v. State (No.
4994) (R. Lupper 77). On May 13,1963, the Supreme Court
of Arkansas handed down its decision, reversing all the
Act 226 convictions for lack of evidence and affirming the
Act 14 convictions of the petitioners, holding:
It is contended that the Act is so vague as to make
it impossible to determine what conduct might trans
gress the statute. It is said that the Act provides no
ascertainable standard of criminality. With these con
tentions we cannot agree. The Act clearly, specifically
and definitely makes the failure to leave the business
premises of another upon request of the owner or
manager a misdemeanor (R. Lupper 81).
Appellants further assert that the Act has been
unconstitutionally applied in that the enforcement of
such Act amounts to “state action” in violation of the
Fourteenth Amendment to the Federal Constitu
tion. . . .
14
There is no right in these defendants under either
State or Federal law to compel the owners of lunch
counters to serve them. Many states have enacted
so-called “public accommodation” statutes but Arkan
sas is not among them. The Fourteenth Amendment
does not guarantee any such right to the appellants
(R.. Lupper 84).
# # * # #
The petitioners sought rehearing (R. Lupper 88-89)
which was denied (R. Lupper 89-90) on June 3, 1963.
Summary o f Argument
I
The Civil Rights Act of 1964, Title II (Public Accommo
dations), compels the reversal of these eases and their re
mand for dismissal, both under the doctrine expounded in
Bell v. Maryland,----- U. S .------ , 12 L. Ed. 2d 822, and by
virtue of §203 (c) of the Civil Rights Act, forbidding “pun
ishment” of acts such as those here shown to have been
committed. By an action “possibly unique” in national leg
islative history, Bell v. Maryland, supra, at 829, Congress
has declared it to be in the national interest that acts such
as those here sought to be punished be permitted, has out
lawed the interest vindicated by these prosecutions, and has
expressly forbidden the punishment of persons acting as
petitioners have acted. The federal and common-law doc
trine of abatement of criminal prosecution, on removal of
the taint of criminality, here applies, and the federal “sav
ing statute” (1 U. S. C. §109) does not shield these prose
cutions from the effect of that doctrine, for, as a matter
both of its own construction and the effect on it of §203(c)
of the Civil Rights Act, the “saving” statute has no appli
cation here.
15
Though the Court need never reach the point, it is, more
over, entirely clear, under the holding in Bell v. Maryland,
supra, that these cases, if it were not that they must be
reversed as a matter of federal law, must be remanded to
the state courts for consideration there of the abating effect
of the Civil Rights Act, for that Act, besides being para
mount national law, is a part of the law of every state, and
the position, in each state, is therefore the same as the posi
tion in Maryland as shown in Bell.
In the South Carolina case, the absence, in that state, of
any “saving” statute, and the state’s consistent adherence
to the common-law rule of abatement on a legislative aboli
tion of the crime, would make remand unnecessary, even
under the erroneous assumption that state law alone ap
plied, since South Carolina could not refuse to abate these
prosecutions, in the face of the Civil Rights Act, without
effecting a forbidden discrimination against a federal law.
II
These records exhibit the use of state power to effect
racial discrimination, contrary to the equal protection
clause of the Fourteenth Amendment.
South Carolina and Arkansas, as a matter of well-known
history, have lent state power to the support of the custom
of segregation. Neither state has taken any turn in regard
to this question; both, for example, still retain on their
statute-books extensive Jim Crow codes. The custom thus
supported and given moral sanction by law is in turn ex
pressed in the actions taken by proprietors in these cases.
The causal chain is clear and visible; it is impossible that
no causal connection exists between the power of the state
that supports the custom of segregation, and the act of the
proprietor who follows the custom. At the least, the state
itself, in a criminal prosecution, cannot be heard to deny
16
that its own efforts to preserve segregation as a custom
have been efficacious.
Further, under the doctrine of Shelley v. Kraemer, 334
U. S. 1, “state action” is found in the use of the state police,
prosecutorial, and judicial powers, to implement and give
sanction to racial discrimination in the extended public
life of the community, even though the pattern of discrimi
nation is nominally “private” in origin. No suggested dis
tinction of Shelley is successful, and that case must either
be overruled, openly or sub silentio, or applied here.
Thirdly, the states concerned have acted, insofar as “ac
tion” is necessary to the “denial” of “equal protection,”
by maintaining legal regimes in which, in final effect, a
narrow and technical “property” claim is given preference
to the claim of Negroes to be protected against the insult
and inconvenience of public segregation.
None of these theories of “state action,” broad though
they are, need bring the Fourteenth Amendment into the
authentically private life of man, for there are many rea
sonable canons of interpretation, applicable to the sub
stantive guarantees of the Fourteenth Amendment, which
may be invoked if cases arise calling for their invocation.
In the cases at bar, no true private assoeiational interest
exists and the Court need not and ought not, in these cases,
be concerned with the exact location of any lines which
might later have to be drawn. It is enough to note that
sound and equitable considerations exist on the basis of
which such lines may be drawn when needful, so that the
Court need not, in taking note of the plain “state action”
here shown, fear a commitment to the intrusion of the
Fourteenth Amendment into matters genuinely private.
17
III
These convictions violate due process of law, in that the
statutes alleged to be violated do not forbid the conduct
shown on the record, so that the convictions either (1 ) are
without any evidence of the crime charged, or (2) are
under a statute failing entirely to warn.
The statutes concerned in these cases very clearly make
criminal a refusal to leave the “premises” or “place of
business,” after an order to leave the “premises” or “place
of business.” Both records show affirmatively, on the
state’s own testimony, that no such order was given; the
order, in each case, was an order to move away from one
part of the “premises” or “place of business.” Criminal
trespass statutes do not cover the whole field of civil tres
pass; they are special and narrow in their application.
The action of disobeying an order to leave a man’s house
is a very different action from that of disobeying an order
to move away from his piano, in a context of general wel
come elsewhere in the house; the statute criminally penal
izing the first cannot automatically be extended to cover
the second. A statute prescribing a long jail term for re
fusal to leave the “place of business” or being ordered to
leave the “place of business,” cannot, without a violation
of due process, be made the basis of conviction for refus
ing to stand back from the lunch counter.
In the Hamm case, the defendant was denied due process
of law by the refusal of the prosecutor and trial judge to
specify the law under which he was charged, by the con
sequent vagueness of the law set forth in the instructions
to the jury, and by the variance between the law charged
the jury and the law on the basis of which the state appel
late courts sustained defendant’s conviction.
18
A R G U M E N T
I.
The Enactment o f the Civil Rights Act o f 1 9 6 4 , Sub
sequent to These Convictions But W hile They Were
Still Under Direct Review, Makes Necessary Either Their
Outright Reversal or a Remand to the State Courts for
Consideration o f That Act.
A. The Civil Rights Act of 1964 Abates These Prosecutions
as a M atter of Federal Law, and These Cases Should Be
Reversed on That Ground.
On July 2, 1964, the federal Civil Rights Act of 1964,
78 Stat. 241, went into effect, providing, inter alia:
T itle II— I n ju n c t iv e R e l ie f A gainst D iscrim in a tio n
in P laces of P ublic A ccommodation.
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, cafeteria, lunchroom, lunch
counter, soda fountain, or other facility principally
engaged in selling food for consumption on the prem
ises, including, hut not limited to, any such facility
19
located on the premises of any retail establishment;
or any gasoline station; . . .
* * *
(4) Any establishment (A) (i) which is physically
located within the premises of any establishment
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
subsection (b); (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; .. . and
(4) in the case of an establishment described in para
graph (4) of subsection (b), it is physically located
within the premises of, or there is physically located
within its premises, an establishment the operations
of which affect commerce within the meaning of this
subsection. . . .
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
2 0
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 exer
cising or attempting to exercise any right or privilege
secured by section 201 or 202. [Emphasis added.]
It is clear that department store lunch counters, such as
those involved in these cases, fall within the terms of
§201 (c)(2), as quoted.1 The discrimination practiced in
these cases was, on the records, racial (R. Hamm 72-3
et passim. R. Lupper 27, 35, 36, 46, 50-51). Had these al-
1 The retail store lunch counters involved in these cases are
literally covered by the Act, for, being open to the general public
(R. Hamm 59-61, 66, 68; R. Lupper 47, 79), they “offer to serve
interstate travelers . . . ” §201 (b)(2), (c)(2). This statutory
language contains no requirement of “substantiality,” if that term
could have any meaning in this context. The Bill, as originally
introduced in the House by Congressman Celler as H.R. 7152, did
contain such a limiting requirement in Sec. 202 (a) (3) :
. . . (i) the goods, services, facilities, privileges, advantages,
or accommodations offered by any such place or establishment
are provided to a substantial degree to interstate travelers . . .
Hearings Before Subcommittee No. 5 of the House Committee
on the Judiciary, 88th Cong., 1st Sess., ser. 4, pt. 1, at 653
(1963).
This section of the act was changed to its present broader form
after passing through the full House Judiciary Committee. Mi
nority Report, H.R. Rep. No. 914, 88th Cong., 1st Sess. 79 (1963).
The omission of a requirement of “substantiality” cannot have
been inadvertent, for there stands in immediate contiguity the
criterion, in the alternative, that a “substantial portion” of the food
served has moved in interstate commerce. “Offering to serve”
interstate travelers, as an alternative ground to actually serving
them, could hardly contain a “substantiality” requirement. It is
virtually impossible that an establishment which makes a principal
or massive appeal to interstate travelers would never serve one.
Yet, if some “substantiality” requirement be read into the “offer
to serve” criterion, that establishment would be the only one
brought within the Act independently by the “offer to serve” test.
Congress, in adding this language and eliminating the “substan-
2 1
leged offenses occurred after its passage, therefore, the
Civil Rights Act would furnish a complete defense, not
only because it is unthinkable that a state should be per
mitted to punish disobedience to an order the giving of
tiality” requirement, can hardly have meant to designate a class
that would be as good as empty.
This literal interpretation harmonizes completely with other
portions of the coverage section, for Congress obviously intended to
include virtually all hotels, gas stations, and places of amusement,
especially motion picture houses. Congressman Celler’s remarks,
in presenting the bill, state an intent to do, for the nation as a
whole, exactly what was done before in the 30 states having public
accommodation laws 110 Cong. Rec. 1456 (daily ed. Jan. 31, 1964).
He also spoke of the coverage of retail store lunch counters in terms
indicating that their simply being “public” was enough. Id. p. 1457.
This construction is eminently reasonable. It is the aggregate
rather than the individual effect of the prohibited practice that
counts, Wickard v. Filburn, 317 U. S. I l l , 127, 128; NLRB v.
Fairiblatt, 306 U. S. 601, 606, 607; United States v. Darby, 312
U. S. 100, 123; and it cannot be doubted that, if every restaurant
not principally or largely catering to interstate travelers were
segregated, the aggregate effect of the segregation of these thou
sands of restaurants would substantially inconvenience interstate
travel. The Negro interstate traveler wTould still be a second-class
interstate traveler, who could be confident of service only if he kept
blinders on and never left the principal routes of travel to see the
sights, to shop between trains, or to make any other of the depar
tures travelers customarily make from the shortest way.
What Congress seems to have done is to cover every lunch counter
that brings itself within the constitutional power of Congress by
virtue of its making any kind of an offer to serve a public that in
cludes interstate travelers, while leaving it open that some genu
inely eccentric case may present itself and be found outside of the
Act (cf. The ‘intrastate colored” lavatories that briefly flourished
a few years ago in railroad stations). NLRB v. Fainiiatt, supra,
at p. 607. That this is the right construction of the phrase in ques
tion is conclusively shown by the fact that the provision would be
virtually impossible to administer without it; a requirement that
every Negro desiring a meal face an argument about (and finally
the necessity of making an elaborate record on) the degree and
quality of an offer to serve interstate travelers, would as good as
nullify the Act. Particularly is this true of the use of the Act as a
defense in criminal prosecutions, a use whose contemplation by
Congress is proved with rare clarity by the legislative history. See
text, infra, pp. 22, 23.
2 2
which contravenes a federal right, but because such punish
ment is itself explicitly declared unlawful, in §203 (c),
supra. Senator Humphrey, floor manager for the bill in
the Senate, read into the record a Justice Department
statement containing this language:
It need hardly be added, however, that nothing in
section 205 (b) [now §207 (b), making the “remedies”
of the Act exclusive] precludes a defendant in a State
criminal trespass prosecution arising from a “sit in”
at a covered establishment from asserting the non
discrimination requirements of title II as a defense
to the criminal charge. The reference in section 205
(b) to “means of enforcing” the right created by title
II obviously does not deal at all with the question of
whether the right created by that title may be used as
a defense in criminal proceedings. Raising a defense
in a criminal case is not “enforcing” a right by a
“remedy” within the meaning of section 205 (b). That
section is intended to preclude only direct affirmative
action by the Government, or by a person aggrieved
acting as a plaintiff, pursuant to Federal laws other
than the provisions contained in title II. It is not in
tended and should not be read as precluding a plea in
a criminal prosecution, or an action for damages,
against a person availing himself of the Federal right
created by title II, that the criminal or civil action
against him is not well taken. That this is the proper
connotation of the title is made doubly clear by section
203 (c) which prohibits the imposition of punishment
upon any person “for exercising or attempting to exer
cise any right or privilege” secured by section 201 or
202. This plainly means that a defendant in a criminal
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. . . . 110 Cong. Rec. 9162-3 (daily ed. May
1, 1964).
In effect, the “offense” with which petitioners are charged
is now removed, by the paramount federal authority, from
the category of punishable crimes—exactly the thing that
happened with respect to the Maryland “offense,” when
that state passed the public accommodations law that was
the basis of the action taken by this Court in Bell v. Mary
land, ----- U. S. ——, 12 L. Ed. 2d 822, except that the
Civil Rights Act is stronger, since it contains that §203
(c) quoted in the preceding statement proffered by Sen
ator Humphrey, and directly forbidding “punishment” for
an attempt at exercising the named rights.
If these petitioners are now to be punished notwith
standing §203 (c), it will be for having insisted upon some
thing which the national conscience has now most decidedly
declared they are entitled to insist upon, against a refusal
which the national conscience has now declared affirma
tively unlawful. Their punishment can serve no purpose,
for no valid state or private interest can now be admitted
to exist in deterring them or others from doing what they
have done; the only licit deterrence interest now runs the
other way. Their punishment would afford the immoral
spectacle of pointless revenge against those whose claim,
substantially, has been validated by national authority.
Such a result ought to be allowed only if the law un
equivocally commands it. It is petitioners’ submission that
the law actually forbids it—that the Civil Rights Act of
1964 and especially its §203 (c), placed in the setting of
the ancient law expounded in this Court’s opinion in Bell
v. Maryland, supra, abates these prosecutions and forces
their remand for dismissal.
24
Not only the text but all the implications and radiations
of the Civil Eights Act are a part of federal law, overriding-
contradictory state law to their full extent. Gibbons v.
Ogden, 22 U. S. (9 Wheaton) 1; Sola Elec. Co. v. Jefferson
Elec. Co., 317 U. S. 173; Sperry v. Florida, 373 U. S. 379.
In the Sola case, this Court said, at p. 176:
It is familiar doctrine that the prohibition of a
federal 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 inapplicable
to those areas of judicial decision within which the
policy of the law is so dominated by the sweep of fed
eral statutes that legal relations which they affect must
be deemed governed by federal law having its source
in those statutes, rather than by local law. Royal In
demnity Co. v. United States, 313 U. S. 289, 296; Pru
dence Corp. v. Geist, 316 U. 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 consequences of the
condemnation, though left by the statute to judicial
determination, are nevertheless federal questions, 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 IT. S. 209; Deitrick v. Greaney,
309 U. S. 190, 200-01.
This Court, in fitting the statute into the complex web
of federal-state relations, must follow the method set out
25
in San Diego Building Trades Council, Millmen's Union,
Local 2020, Building Material and Dump Drivers, Local 36
v. Garmon, 359 U. S. 236, 239, 240:
The comprehensive regulation of industrial relations
by Congress, novel federal legislation twenty-five years
ago but now an integral part of our economic life, in
evitably gave rise to difficult problems of federal-state
relations. To be sure, in the abstract these problems
came to us as ordinary questions of statutory construc
tion. But they involved a more complicated and per
ceptive process than is conveyed by the delusive phrase,
“ascertaining the intent of the legislature.” Many of
these problems probably could not have been, at all
events were not, foreseen by the Congress. Others were
only dimly perceived and their precise scope only
vaguely defined. This Court was called upon to apply
a new and complicated legislative scheme, the size and
social policy of which were drawn with broad strokes
while the details had to be filled in, to no small extent,
by the judicial process.
(Cf. Van Beech v. Sabine Towing Co., 300 U. S. 342, 351.)
The classic doctrines of the two preceding quotations are
exactly applicable to the question of the abative effect of
the Civil Rights Act of 1964 on these prosecutions.
Apart from statute, the general federal rule is that a
change in the law, prospectively rendering that conduct in
nocent which was formerly criminal, abates prosecution
on charges of having violated the no longer existent law.
See Bell v. Maryland, supra, 12 L. Ed. 2d at p. 826, n. 2;
United States v. Chambers, 291 U. S. 217; United States
v. Tynen, 78 U. S. (11 Wall.) 88.
Though the case has apparently never arisen, there -would
seem to be no reason for the non-application of this rule
2 6
to the operation of a federal statute upon state prosecu
tions, where the federal statute has the effect (as the Civil
Bights Act of 1964 has with respect to these prosecutions)
of rendering lawful, in the name of the national authority
and interest, that which formerly was unlawful, and ren
dering unlawful the actions and claims of the person whose
interests are protected by the state’s prosecution, cf. Bell
v. Maryland, ----- U. S. at ----- , 12 L. Ed. 2d at 825.
Indeed, the case is a fortiori, for the national authority
is supreme.
Unless, therefore, there is statutory warrant for the
contrary conclusion, the effect of the Civil Bights Act of
1964, in its Sections 201 ff., must be to abate these prose
cutions.
The only relevant statutory provision is the first sentence
of the Act of February 25, 1871, B.S. 13, now codified in
1 U. S. C. §109, in the following terms:
§109. Bepeal of statutes as affecting existing liabilities.
The repeal of any statute shall not have the effect
to release or extinguish any penalty, forfeiture, or lia
bility 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
enforcement of such penalty, forfeiture, or liability.
The expiration of a temporary statute shall not have
the effect to release or extinguish any penalty, for
feiture, or liability incurred under such statute, unless
the temporary statute 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 enforcement of such penalty, for
feiture, or liability.
27
Both as a matter of its own construction and because of
the existence of §203(c) of the Civil Rights Act, this statute
does not apply here. To it, first, may be directed, with even
stronger force, the remarks of this Court on the similar
Maryland statute, in Bell v. Maryland, supra, 12 L. Ed. 2d
at pp. 828, 829:
By its terms the clause does not appear to be applicable
at all to the present situation. It applies only to the
“repeal,” “repeal and re-enactment,” “revision,”
“amendment,” or “consolidation” of any statute or
part thereof. The effect wrought upon the criminal
trespass statute by the supervening public accommo
dations laws would seem to be properly described by
none of these terms. The only two that could even
arguably apply are “repeal” and “amendment.” But
neither the city nor the state public accommodations
enactment gives the slightest indication that the legis
lature considered itself to be “repealing” or “amend
ing” the trespass law. Neither enactment refers in any
way to the trespass law, as is characteristically done
when a prior statute is being repealed or amended.
This fact alone raises a substantial possibility that the
saving clause would be held inapplicable, for the clause
might be narrowly construed—especially since it is in
derogation of the common law and since this is a crim
inal case—as requiring that a “repeal” or “amendment”
be designated as such in the supervening statute itself.
The absence of such terms from the public accommo
dations laws becomes more significant vdien it is rec
ognized that the effect of these enactments upon the
trespass statute was quite different from that of an
“amendment” or even a “repeal” in the usual sense.
These enactments do not—in the manner of an ordinary
“repeal,” even one that is substantive rather than only
formal or technical—merely erase the criminal liability
that had formerly attached to persons who entered or
crossed over the premises of a restaurant after being-
notified not to because of their race; they go further
and confer upon such persons an affirmative right to
carry on such conduct, making it unlawful for the res
taurant owner or proprietor to notify them to leave
because of their race. Such a substitution of a right
for a crime, and vice versa, is a possibly unique phe
nomenon in legislation; it thus might well be con
strued as falling outside the routine categories of
“amendment” and “repeal.”
Of the two words here discussed, “amend” and “repeal,”
“amend” is the more nearly apt to describe the effect of the
Civil Rights Act on the trespass laws of the states, though
neither exactly answers, see Bell v. Maryland, supra, 12
L. Ed. 2d at pp. 828, 829. But the federal “saving clause,”
by its own terms, saves rights under the prior statute
only when “repeal” has taken place. While some lower fed
eral courts have held “amendment” tantamount to “repeal,”
in applying this statute, e.g. United States v. Taylor, 123
F. Supp. 920 (S. D. N. Y. 1954), this Court has never so
held. On the other hand, the literal force of “repeal,” was
insisted on, in another context, in Moore v. United States,
85 Fed. 465 (8th Cir. 1898). The word “repeal” cannot, in
any case, be stretched to cover the total reversal of law and
policy which The Civil Rights Act has effected on the per
missible applications of generally valid state trespass stat
utes. What has happened is not “repeal” but the affirmative
utterance of an overriding national judgment, practical
and moral, removing all taint from actions such as peti
tioners’, and declaring it to be a national wrong to deny
them service or to “punish” them for seeking service. This
is a “possibly unique phenomenon in [federal] legislation;”
see Bell v. Maryland, supra, 12 L. Ed. 2d at p. 829.
29
It is further, certain that the word “statute,” three times
used in the here relevant first sentence of 1 U. S. C. §109,
to denote the prior law that is “saved,” does not refer to
state enactments at all. This section now stands, and since
its enactment in 1871 always has stood, in a context dealing
entirely with federal enactments.2 There exists, moreover,
a sound policy reason for this limitation; it is one Congress
might sensibly have wished to make. For where criminal
liabilities are saved, the federal prosecutor, an officer re
sponsible ultimately to national authority, can use his dis
cretion to prevent a harsh application. If state criminal
liabilities were saved, in the face of a national determina
tion that the acts on which they rest ought not to be crim
inal, no such tempering of the rule, by any official respon
sible to the nation as a whole, would be possible. National
executive clemency would likewise be foreclosed.
An entirely independent and most compelling reason
exists for denying 1 IJ. S. C. §109 any application to the
2 The 1871 legislative history of the act from which 1 U. S. C.
§109 descends is wholly silent on this provision, except for a single
recitation of its content, without exegesis or comment. See 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). But the context of the discussion makes it plain that only
federal statutes were in Congress’ mind. The enactment was part
of an Act “Prescribing the form of the enacting and resolving
clauses of the acts and resolutions of Congress, and rules for the
construction thereof.” The other sections of the Act, three in num
ber, deal with form of enacting clauses, routine rules of construc
tion, and non-revival of repealed statutes by repeal of the repealing
Act. (Now 1 U. S. C. §§1 (in part), 101-104, and 108.) The dis
cussion touched on these sections, rather than on the one here of
interest. Cong. Globe, 41st Cong., 2d Sess. 2464 (1870); Id., 3rd
Sess. 775 (1871). The Forty-First Congress, with Mr. Conkling’s
voice so strong in this and other debates, was not one to which it is
reasonable to attribute a latent tenderness to states’ rights. On the
whole record of these debates, it is entirely plain that the applica
tion of the saving provision to state law was never thought of, and
that the whole focus of interest was the internal characteristics of
Acts of Congress, and their mutual relations.
30
present cases. That statute itself provides that the ‘‘pen
alty” shall be “extinguished” if the repealing act “so ex
pressly provide. . . . ” The Civil Rights Act of 1964, in its
Section 203, as seen above, forbids not only the withholding
of service at places of public accommodation, not only the
intimidation and coercion of persons seeking such service,
but also [§203(c)] 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 present prosecutions would clearly fall under
this law, if the acts on which they are based had taken
place after July 2, 1964. They fall under the law, anyway,
if the word “secure” be taken in one of its normal dictionary
meanings (soundly rooted in its etymology and exemplified
in the last words of the Preamble to the Constitution of
the United States), “to put beyond the hazard of losing or
of not receiving.” Webster’s New International Dictionary,
2d ed., s.v. “secure” ; “To render safe, protect or shelter
from, guard against some particular danger . . . To make
secure or certain . . . ” New English Dictionary, s.v. “se
cure.” “Secure” is not an apt synonym for “create,” a
synonym necessary for referring §203(c) solely to the
period after July 2, 1964. It is an apt word for “making
safe that which already or independently exists,” and that
interpretation results in the literal applicability of §203 (c)
to these prosecutions.
The House Committee Report on the Civil Rights Act,
H. R. Report No. 914, 88th Cong., 1st Sess. (1963), con
tains passages that corroborate the judgment that Con
gress, in considering the public accommodations title of
the bill, was thinking not only in terms of “rights” to be
created by it, but of “rights” already existent, at the very
least on the moral plane, which were to be “secured” by it.
The Report at p. 18 says, for example, that:
31
. . . Today, more than 100 years after their formal
emancipation, Negroes, who make np over 10 percent
of our population, are by virtue of one or another type
of discrimination not accorded the rights, privileges,
and opportunities which are considered to be, and must
be, the birthright of all citizens.
In the next paragraph, it is added:
. . . A number of provisions of the Constitution of
the United States clearly supply the means to “secure
these rights,” and H. R, 7152, as amended, resting upon
this authority, is designed as a step toward eradicat
ing significant areas of discrimination on a nationwide
basis. It is general in application and national in scope.
That this language refers, among other things, to the
public accommodations problem is made clear on the same
page, where it is said of the bill:
. . . It would make it possible to remove the daily
affront and humiliation involved in discriminatory de
nials of access to facilities ostensibly open to the gen
eral public . . .
This application is also suggested by specific statement
in the part of the Report at p. 20 dealing with public
accommodations:
Section 201 (a) declares the basic right to equal
access to places of public accommodation, as defined,
without discrimination or segregation on the ground
of race, color, religion, or national origin. [Emphasis
added.]
In the Senate, a textual change, highly significant here,
took place when, in §207(b), the phrase “based on this
title” was substituted for “hereby created,” in application
32
to the rights to public accommodation. Senator Miller of
Iowa, explaining, said:
One can get into a jurisprudential argument as to
whether the title creates rights. Many believe that the
title does not, but that the rights are created by the
Constitution. [Emphasis added.] 110 Cong. Rec. 12999
(daily ed. June 11,1964).
These passages make it plain that the Act was passed in
an atmosphere in which the “right” to non-discrimination
was conceived of, at least in part, as something that ex
isted before the bill, something that was recognized, de
clared, and protected, rather than being created, by the
bill. It is not necessary, and would probably be impossible,
to ascertain just how, in every context, this conception of
“right” functioned with other conceptions, or how it may
finally be fitted into the Act in all its parts. It suffices to
show, and the quoted passages do show, that there is nothing
unnatural in a construction of §203(c) to apply to the
punishment or attempted punishment of the claim of the
right to be free from discrimination, the same right “se
cured” and specially implemented by the law, but conceived
of as existing, at least morally, prior to its passage. On this
view, §203 (c) is tantamount to a specific shield against the
force of 1 U. S. C. §109, even if that section would have
applied in the absence of §203(c).
It is entirely plain that at least some of the “rights”
“secured” by Title II of the Civil Rights Act were neces
sarily conceived as preexisting the Act, as a matter of
strictest law, for Title II proscribes discrimination sup
ported by “state action” [§201(a) and (b)]. It is not con
troversial that such discrimination was unlawful before the
Act. Moreover, among the forms of “state action” said by
the Act to infect discrimination with illegality is state
33
“enforcement” of “custom” (§201(d)(2))—terminology
seemingly applicable to the very cases at bar (see Points
IIA and IIB, infra, pp. 46-57). In §203(e), Congress lumps
together all these “rights” without the slightest suggestion
of there being intended any distinction between them, with
respect to the present lawfulness of “punishing” their
assertion, whenever that assertion took place. It can hardly
be believed that Congress would have wished to present this
Court with the task of unravelling and disentangling those
“rights” which did and those which in some strict sense
did not antedate the Act, merely for the purpose of dis
posing of residual prosecutions for actions now approved.
It is much more reasonable to think that Congress meant
to forbid “punishment” of all actions descriptively similar
to those now shielded by the Act.
In addition to the assistance of the federal common law,
we are aided in the construction of §203(c) and 1 U. S. C.
§109 by the framework of federal constitutional law. The
Fourteenth Amendment guarantees of equal protection of
the laws and due process of law forbid the infliction of
penalties on a discriminatory basis. The action taken by
Congress under the fifth section of that Amendment in en
acting the Civil Eights Act of 1964 places petitioners in a
different juxtaposition to the States today than at the time
that these cases were affirmed in the Supreme Courts of
the states. At that time, consideration of the prohibitions
of the Fourteenth Amendment involved petitioners’ claim
to freedom from state police and judicial enforcement of
racial discrimination as a counterpoise to the restaurateurs’
claim to the use of the States’ police and judicial ma
chinery in the protection of his private property. Today,
there is nothing left to balance against the first of these
claims. The claims and interests of the restaurateur to
racially discriminate in the use of his private property can
no longer receive the protection of law; moreover, conduct
34
by the restaurateur in furtherance of such claims is con
demned by law.
Affirmance of these convictions and the subsequent pun
ishment of these petitioners would stand alone as a last
vestige of state activity in furtherance of racial discrimi
nation. No longer can the state be heard to say that peti
tioners’ release could be grounded only on a non-existent
right to service at lunch counters; that right exists. No
longer can the state insist that release of petitioners is an
abandonment of the rule of law to the rule of self-help;
the rule of law today forbids the restaurateur self-help in
furtherance of racial discrimination. Finally, the state
today cannot maintain that the release of petitioners aban
dons the right of the restaurateur to use his property in a
discriminatory way; the restaurateur does not have that
right.
Also, the power of Congress over interstate commerce,
and the functioning of this Court in judging upon burdens
placed on that commerce by the states, are hereby com
plexly involved. In part, the establishments covered by the
act are defined at those “affecting commerce.” Serving or
offering to serve interstate travelers is one of the defining
criteria, §201 (c) (2). Congress’ decision to put this law into
effect must therefore have rested, in part, on the judgment
that racial discrimination, in establishments offering to
serve interstate travelers, constituted an undesirable bur
den on that commerce. But if that be the fact found by
Congress, it must have been found by Congress to be the
fact as well before as after the passage of the bill. Con
gress could not have passed this section without having
made the judgment that the very practices which were
here lent the extreme sanction of the criminal law were
deleterious to the national interest, even before the Act was
passed. It is not necessary to urge that this consideration
35
alone would justify this Court in striking down these con
victions as transgressing the implications of the Commerce
Clause, though the aid of a judgment by Congress on such
a question is most considerable. Rather, the questions of
construction are illuminated. To deny 1 U. S. C. §109 an
unnatural and unanticipated application here only results
in allowing this practical judgment by Congress to be fully
effective as to the times respecting which it was actually
made. To interpret §203(c) as petitioners urge produces
the same result.
These considerations are necessarily technical, since they
concern the construction of words. But they are not harm
fully technical in view of the context in which they arise.
The result of their rejection would be that many people
suffer terms of imprisonment for peaceably 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.
The objective of avoiding this anomaly would be not a
worthy ground for reversing these convictions, were the
legal underpinning unsound. It is submitted that it is
sound. In the absence of statute, the effect of an Act of
Congress, making innocent that which was a crime, is to
abate prosecution and shield against punishment. It would
be incompatible with the Supremacy Clause to attribute
any less effect than that to a federal Act which wipes out
the criminality of an action made criminal by one of the
states, for a federal law functions in a dual capacity, as
a supreme law of the nation and as a part of the law of
every state. Hauenstein v. Lynham, 100 U. S. 483. The
only statute in question, 1 U. S. C. §109, can be construed
to prevent this salutary effect only by stretching the word
“repeal” to cover something quite outside the customary
meaning of that term, and only by taking the word “stat
ute,” in a context dealing with federal enactments only, to
refer to the laws of the state. If either of these construc
tions is wrong—and it is submitted both are wrong—then
1 U. S. C. §109 has no application. If §203(c) of the Act
be interpreted to mean all it seems to mean, then 1 U. S. C.
§109, by its own affirmative terms, does not apply and, in
deed, could not apply against a later Act of Congress.
On any of these three grounds, no statutory bar prevents
the application of the settled non-statutory rule, and these
prosecutions must be abated, in accordance with that rule.
As this Court said in Bell v. Maryland, —— U. S. a t ----- ,
12 L. Ed. 2d at 829:
The legislative policy embodied in the supervening
enactments here would appear to be much more
strongly opposed to that embodied in the old enactment
than is usually true in the case of an “amendment” or
“repeal.” It would consequently seem unlikely that
the legislature intended the saving clause to apply in
this situation, where the result 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.
A legislature that passes a public accommodations law
making it unlawful to deny services on account of race
probably did not desire that persons should still be
prosecuted and punished for the “crime” of seeking
service from a place of public accommodations which
denies it on account of race. Since the language of
the saving clause raises no barrier to a ruling in ac
cordance with these policy considerations, we should
hesitate long indeed before concluding that the Mary
land Court of Appeals would definitely hold the saving
clause applicable to save these convictions.
This Court should hesitate even longer before conclud
ing, within the area of its own responsibility that, where
the language of the federal saving clause raises no barrier,
where its key words “repeal” and “statute” must be lav
ishly extended to apply, where the non-statutory rule is
clear, where the new statute explicitly forbids “punish
ment,” and where the policy considerations are national in
scope and prime in national importance, these petitioners
may now be jailed for having done what Congress has,
after dramatic struggle and overwhelming national deci
sion, said that it is in the national interest they be allowed
to do.
This application of the Civil Eights Act is not “retro
active” ; this is clearly shown by the reference above to
§203(c), with its prohibition of “punishment”. It is the
;punishment, of these petitioners, in the future, that would
be interdicted, not on the ground (so far as the present
Point is concerned) that their acts were lawful when per
formed, or even that their convictions were unlawful when
had, but on the well settled ground that punishment is in
appropriate, and violates the present conscience of the rele
vant political society, when the legislative authority that
has the power to do so declares that the taint of criminality
ought to be removed from acts previously infected with it.
It would not be out of place to quote the South Carolina
court’s powerful statement of the reasons for this rule:
The reason of the law is obvious; it is not only unwise
and impolitic, but it is unjust to punish a man for the
commission of an act which the law no longer con
siders as an offence. The policy of a country may re
quire the prohibition of certain acts, or the perform
ance of certain duties for a time, after which the acts
may be innocent, and the duties not required. It would
not be less absurd to punish a man for an act which
is not illegal at the time the punishment is inflicted,
than to punish him for one which never has been de
clared illegal; and upon an examination of the author!-
ties relied on by the counsel for the appellant, it will
be found, that they are all embraced within this doc
trine. State v. Cole, 2 McCord 1, 2, 3 (S. C. 1822).
The nature of the statutes concerned here makes these
cases fit the reason of the rule with a singular aptness. The
petitioners, if freed by operation of this rule, would be
the beneficiaries of no subtle gap in the seisin of the law, no
merely technical “repeal” by dubious implication, no lapse
or expiration through inadvertence. What they did would
not have been criminal at all, in the states concerned, be
fore 1959 or 1960, or could be made so only by a construc
tion of prior state law so bizarre as to violate due process,
Barr v. Columbia, ----- U. S. ----- , 12 L. Ed. 2d 766. In
1959 and 1960 respectively, Arkansas and South Carolina
made this conduct criminal (waiving for present purposes
the problems of construction and application in the amend
ing statutes of these years, see Point III, infra). Then
Congress, the legislative authority with power to do it,
squarely and in the amplest equity made these acts non
criminal, made their punishment unlawful, and made un
lawful the very request to leave on disobedience to which
the prosecutions were based. The conscience of the United
States, by overwhelming consensus in both Houses of Con
gress, and by the approval of the President, has said that
it is wrong and against the national interest for acts such
as these to be punished. There never was a clearer case
for the application of the common-law principle of abate
ment on change in the law; there never was a less appeal
ing case for the stretched construction of a “saving” stat
ute. If the convictions as well as the Civil Rights Act had
been federal, and if 1 U. S. C. §109 had been applied, it is
extremely unlikely that prosecutor’s discretion or execu
tive clemency would have left people to suffer who had
been convicted of “offenses” now virtually declared by
Congress to be meritorious, certainly blameless. As mat
ters stand, neither federal prosecutor’s discretion nor fed
eral executive clemency can help these petitioners. But
they can be helped by the application of the settled rule
adverted to in Bell v. Maryland, supra, 12 L. Ed. 2d at
p. 826, and by a natural construction of §203(c).
No vested private rights or even expectations make in
appropriate the application to petitioners’ cases of the
common-law rule. This is therefore, in relevant respects,
a stronger case than Louisville and Nashville R.R. Co. v.
Mottley, 211 U. S. 149. In that ease, a contract between
the railroad and the Mottleys had created a vested contract
right, perfect under state law, and arising out of operative
facts long antedating any federal statutory expression of
policy such as to make obnoxious to a federal interest the
enforcement of the contract. Yet this Court held that the
enforcement of the contract violated federal law, and re
vised a state court judgment ordering specific performance.
A striking parallel is found in the dealings of the Courts
of Appeals of the Second and Ninth Circuits with the prob
lem of pseudo-retroactivity, in cases under the Wagner Act.
The employer has been held guilty of an unfair labor prac
tice when he refused to reinstate employees whom he had
discharged during a strike 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 U. 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 courts held that punish
ment, for activities before the Act in time but favored and
fostered by the Act, was forbidden, though the language of
the Wagner Act was less literally applicable than the “pun
ishment” language of §203(c) of the Civil Rights Act.
Employers were forbidden to “interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in
40
Section 7 . . . ” and “ . . . by discrimination in regard
to hire and tenure . . . to encourage or discourage member
ship 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). If the
policy of the Wagner-Connery Act, without a specific ban
on “punishment,” could reach far enough to force the re
sumption of a terminated relationship, on the ground that,
though the termination was lawful when accomplished, non-
reinstatement countervailed the Act, surely it is unallow
able that imprisonment be suffered now for activities Con
gress has so decisively approved. As these Wagner-Con
nery cases show, this result could be attained without the
specific “punishment” language of §203 (c), but that lan
guage hammers the point home clearly, and also makes
clear the applicability of this principle to the states, the
entities as to which the concept of “punishment” is most
relevant. Cf. United States v. California, 297 U. S. 175.
There is no legitimate state interest, of a public nature,
in punishing these petitioners, now that the Civil Rights
Act is in force. The deterrence of petitioners, and others,
from insisting on service, as against the wishes of the pro
prietors to practice racial discrimination, is now an ille
gitimate object, directly contravening federal law and pol
icy. There is no legitimate private interest left, to be
indirectly protected, for the federal law now explicitly for
bids the selection of clientele on a racial basis.
Finally, petitioners remind the Court that the views here
urged have not to do with a constitutional rule, binding
on Congress in the future. To these cases as to the case of
Bell v. Maryland may be applied, with the substitution of
the words “unlawful act” for “crime”, the words of the
Court in that case: “Such a substitution of a right for a
crime, and vice versa, is a possibly unique phenomenon in
41
legislation . . . ” ----- U. S. at pp. ----- , 12 L. Ed. 2d at
pp. 828, 829. But if Congress anticipates its recurrence,
and desires to prevent the effect of abatement of state
prosecutions where its own authority has made non-criminal
the conduct on which they rest, this can freely he done,
either by a special saving clause in a particular statute, or
by an amendment to the general saving clause, 1 TJ. S. C.
§109. It is not for this Court now to fill this gap by a very
strict construction of the Civil Rights Act and a very large
and liberal construction of an 1871 general saving clause
statute that was clearly passed with no such problem as
this in mind, and with no view to adjusting the relations
between state and federal law. Without such construction,
the Civil Rights Act, under the common-law rule, abates
these prosecutions and they ought to be remanded for dis
missal.
These cases might, it is true, be remanded to the state
courts for consideration even of the federal question here
raised. But petitioners submit that such an action would
be one of only specious comity. The question argued in
the foregoing point is one of uniform national importance;
very many pending cases, in a number of states and at
various stages of procedure, hang on its resolution. The
truly helpful action to the states would be a clearcut de
termination at this time by the court to which the question
will ultimately have to come.
B. The Least Possible Consequence in These Cases, of the
Rule Announced in Bell v. Maryland Is Their Rem and to
the State Courts, fo r Consideration There of the Effect
of the Enactment of the Federal Civil Rights Act of 1964.
In Bell v. Maryland,----- U. S .------ , 12 L. Ed. 2d 822,
decided at the last term of this Court, it was held that
the enactment of a state public accommodations law, subse
quent to the commission of the alleged offenses but while
42
the convictions were still under review, made appropriate
a remand to the state courts, for consideration of the ques
tion whether, within the framework of the state common
and statutory law, such intervening enactment destroyed
the legal basis for prosecution and made dismissal appro
priate. This action was taken by this Court after careful
consideration both of the general common law rule and of
the Maryland general “saving clause,” 1 Md. Code §3
(1957), see Bell v. Maryland, supra, 12 L. Ed. 2d at pp.
826-828, 831, 832.
The federal Civil Eights Act besides being a permanent
federal law, is a part of the law of each state.
It must always be borne in mind that the Consti
tution, laws and treaties of the United States are as
much a part of the law of every State as its own local
laws and Constitution. This is a fundamental prin
ciple in our system of complex national polity. See,
also Shanks v. Dupont, 3 Pet., 242; Foster v. Neilson,
2 Pet., 253; Cherokee Tobacco, 11 Wall., 616; Mr.
Pinkney’s Speech, 3 Elliot’s Const. Deb. 231; People
v. Gerke, 5 Cal., 381. (.Hauenstein v. Lynham, 100 U. S.
483, 490.)
For the narrower application of the Bell holding the posi
tion, therefore, must be taken to be the same as it would
be if Arkansas and South Carolina had, while these prose
cutions were pending, enacted laws exactly equivalent, in
tenor and effect, to the federal Civil Eights Act.
Arkansas has a general “saving clause” statute, Ark.
Stats., 1947, §1-103:
1-103. Eepeal of criminal or penal statute—Effect
on Offenses Comitted.—When any criminal or penal
statute shall be repealed, all offenses committed or for-
43
feitures accrued under it while it was in force shall
be punished or enforced as if it were in force, and
notwithstanding such repeal, unless otherwise expressly
provided in the repealing statute. [Act Dec. 21, 1846,
§1, p. 93; C. & M. Dig., §9758; Pope’s Dig., §13283.]
The application of this statute to the saving of these
prosecutions is even more dubious than that of the Mary
land statute, Maryland v. Bell, supra, for the Arkansas
statute speaks only of “repeal”, where the Maryland stat
ute speaks of “amendment” as well, see Bell v. Maryland,
supra,----- U. S. at p . ------ , 12 L. Ed. 2d 822 at pp. 828-9
(quoted supra herein at pp. 27, 28), and the operation of
a public accommodations statute, forbidding racial dis
crimination, upon a general trespass law, more nearly
resembles “amendment” than “repeal,” though (as the Court
points out in Bell) neither word may be apt.
The same remarks apply to Ark. Stats., §1-104:
1-104. Existing actions not affected by repeal.—No
action, plea, prosecution or proceeding, civil or crimi
nal, pending at the time any statutory provision shall
be repealed, shall be affected by such repeal, but the
same shall proceed in all respects as if such statutory
provision had not been repealed, (except that all pro
ceedings had after the taking effect of the revised stat
utes, shall be conducted according to the provisions of
such statutes, and shall be in all respects, subject to
the provisions thereof, so far as they are applicable).
[Rev. Stat., ch. 129, §31; C. & M. Dig., §9759; Pope’s
Dig., §13284.]
South Carolina has no general “saving clause,” and ap
plies the common-law rule, State v. Moore, 128 S. C. 192,
122 S. E. 672 (1924); see Point I-C, infra for fuller dis
cussion of the position in that state.
44
As to both these states, and as to both these pending
Civil Eights Act is to be taken to be solely a state-law
cases, therefore (even on the assumption, which is contrary
to fact, see Point I-A supra, that the abating effect of the
question), the least effect of Bell must be reversal and
remand for consideration of the question whether the Civil
Eights Act, in its section quoted above, has the effect of
abating these prosecutions.
C. In the Case of Hamm v. City of Rock Hill, This Court
Might Finally Reverse, on the Ground That, Since South
Carolina Has No Saving” Statute and Follows the Common
Law Rule, Any Determ ination by the Courts of That State
That This Prosecution Is Not Abated W ould Be So Out of
Line W ith Its Prior Law as to Constitute a Discrimination
Against a Federally Originated Right.
South Carolina, as pointed out above, differs from most
American states in that it has no statute modifying the
“ . . . universal common-law rule that when the legislature
repeals a criminal statute or otherwise removes the State’s
condemnation from conduct that was formerly deemed crim
inal, this action requires the dismissal of a criminal pro
ceeding charging such conduct.” Bell v. Maryland, supra,
—— U. S. at p .----- , 12 L. Ed. 2d at 826.8
Obedient to this principle, South Carolina has never, so
far as can be discovered, sustained criminal punishment of
an act no longer criminal when the punishment was to be
inflicted. This principle has been applied not only to cases
of total “repeal” but also to cases of modification of the
nature and elements of criminality. State v. Moore, 128
S. C. 192, 122 S. E. 672 (1924), was a case of prosecution
for giving a check without funds to cover, under a statute
in which fraud was not an element. An intervening statute 3 *
3 For the South Carolina court’s early and powerful statement of
the reason for this rule, see supra, pp. 37, 38.
45
added the requirement of fraud, and the conviction was
reversed.
No South Carolina case has been found that could cast
doubt on the proposition that as a matter of the standing
law of that state, the passage by its legislature, on July
2, 1964, of a law in the same terms as the federal Civil
Rights Act, must result in the reversal of these convictions
and the dismissal of the cases. Clearly, South Carolina
must give just that effect to the federal Act. Hauenstein
v. Lynham, 100 U. S. 483. Her failure to do so would, it
is submitted, violate her obligation to apply her law as it
stands to matters concerning federal right, see Testa v.
Katt, 330 U. S. 386; Wright v. Georgia, 373 U. S. 284, 291;
Bouie v. Columbia,----- U. S .------ , 12 L. Ed. 2d 894, 901.
It is submitted, therefore, that the remand of the South
Carolina cases for consideration of the effect of the Civil
Rights Act would be a uselessly delaying procedure, and
that (even on the assumption that the abative effect of that
Act is one of state law) this Court ought now finally to
reverse the Hamm conviction.
46
II.
Petitioners’ Convictions Enforced Racial Discrimina
tion in Violation of the Fourteenth Amendment to the
Constitution of the United States.
A. The States of Arkansas and South Carolina Are Involved
in the Acts of Racial Discrim ination Sanctioned in These
Cases Because Such Acts W ere P erform ed in Obedience to
W idespread Custom, W hich in Turn Has Received Massive
and Long-Continued Support From State Law and Policy.
Petitioners submit that this argument goes to the very
heart of the known historic and present truth about the
connection between the segregation pattern, clearly exem
plified in these cases,4 and the public power of the South
ern states. With the deepest respect, petitioners are con
tent to adopt the language of the dissenting opinion in
Bell v. Maryland,----- U. S. ------, ----- , 12 L. Ed. 2d 822,
860:
This contention rests on a long narrative of histori
cal events, both before and since the Civil War, to
show that in Maryland, and indeed in the whole South,
state laws and state actions have been a part of a
pattern of racial segregation in the conduct of busi
ness, social, religious, and other activities. This pat
tern of segregation hardly needs historical reference
to prove it. [Emphasis added.]
To the familiar history referred to in the emphasized
sentence, it need only be added that (unlike Maryland, see
Bell v. Maryland, supra, 12 L. Ed. 2d at p. 860, n. 21 (dis
senting opinion)) neither Arkansas nor South Carolina
has shown the slightest tendency to attempt to break the
See pp. 8-12, supra.
47
iron chain of causation that links the past with the present.
As late as 1959, the officially stated objective of the gov
ernor of Arkansas was the “continuation of segregated
schools.” Inaugural Address, 4 Race Eel. L. E. 179 (1959).
In 1958, the Arkansas legislature authorized the closing
of schools to prevent compliance with federal court orders
to desegregate. Ark. Stat. 80-544, Acts 1958 (2d Ex. Sess.),
No. 4, §1, p. 2000. Only two years earlier, South Caro
lina’s legislature passed a joint resolution of Interposi
tion and Nullification,5 obviously directed at the decisions
of this Court in the field of segregation. On the statute
books of Arkansas still stand requirements of segrega
tion in railroad6 (including waiting rooms7), streetcars,8
buses,9 schools,10 penal institutions,11 deaf and blind insti
tutes for children,12 chain gangs,13 any “establishment
where gaming is legal,” 14 and other places. Present law
in South Carolina segregates station restaurants,15 rail
roads and steamboats,16 streetcars,17 chain gangs,18 cir
cuses and traveling shows,19 colleges (which must close if 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
5 S. C. Acts and Joint Resolutions 1956, No. 914.
6 Ark. Stat. Ann. §73-1218 (1957).
7 Ibid.
8 Ark. Stat. Ann. §73-1614 (1957).
9 Ark. Stat. Ann. §73-1747 (1957).
10 Ark. Stat. Ann. §80-509 (1960).
11 Ark. Stat. Ann. §§144, 145 (1947).
12 Ark. Stat. Ann. §80-2401 (1960).
13 Ark. Stat. Ann. §76-1119 (1957).
14 Ark. Stat. Ann. §84-2724 (1960).
15 S. C. Code §58-551 (1962).
16 S. C. Code §§58-714, 58-719, 58-720 (1962).
17 S. C. Code §§58-1331, 58-1340 (1962).
18 S. C. Code §§55-1, 55-2 (1962).
19 S. C. Code §5-19 (1962).
48
ordered to desegregate),20 textile factories,21 parks,22 and
schools.23
With these laws on the books, it would outrage good
sense to disregard the causal nexus that binds these states’
segregation custom to their laws and policies, on the ground
that it is politic to treat the past as something best for
gotten. The past is still the official policy of Arkansas and
South Carolina.
But even if that were not so, there is no reason to treat
contemporaneity as the test of causality—to say that the
firmness of the segregation custom can today owe nothing
to the forces of law that surely gave it power for decades
(if they did not partly create it), merely because that
legal support is withdrawn, by the decisions of this Court
if not by state repentance and repeal. The judgment that
past institutions have no causal connection with the present
is never warranted, but it should be particularly obvious
that it is unwarranted in the context of race relations,
where the rule of the past comes from so far back, even
from the days of slavery.
It is not proposed that the present generation of Ar
kansans and South Carolinians be penalized for what their
ancestors did24—if that could be thought factually to the
point, given the present-generation official stance of these
states. It is rather proposed that, where Arkansas and
South Carolina themselves move to send petitioners to jail
for disobeying orders given in conformance with the segre-
20 S. C. Code §22-3 (1962).
21 S. C. Code §40-452 (1962).
22 S. C. Code §51-2.1 (1962).
23 S. C. Code §21-751 (1962).
24 Bell v. Maryland,----- U. S .------ , ----- , 12 L. Ed. 2d 822, 860
(dissenting opinion).
49
gation custom that has for many decades been the keystone
of the public policy of each state, the state not be allowed
to visit this penalty on these petitioners, on the utterly
unrealistic theory that state pov?er is to no extent involved.
The state “ . . . will not be heard to make this contention . . . ”
Peterson v. Greenville, 373 U. S. 244, 248, when the force of
its policy has for so long been directed to maintaining a
segregated society, a society in which store managers would,
predictably in custom, give just such orders as these peti
tioners stand convicted of disobeying.
Nor is it, with the deepest respect, a valid objection to
this argument, that the settled and state-supported custom
of one section of the nation infects with Fourteenth Amend
ment invalidity actions taken in conformity to that state-
supported custom, while the same conditions cannot be
predicted of another section. Here is no question of le
niency, or of two Fourteenth Amendments,25 but of one
Fourteenth Amendment, justly applied to conditions which
in fact do vary. Cf. In re Bahrer, 140 U. S. 545 (1891).
How could it be otherwise? The very question that is
being asked is whether state power bears a causal relation
to the discriminatory act. How could it be that the answer
to this question would be the same, whether or not the
particular state had for three-quarters of a century based
its political and civic life on the proposition that such acts
of discrimination are necessary and wholesome?
It would be most unlenient to the Negro in the South to
close one’s eyes to the fact that massive and long-lasting
state policy has significantly contributed to the discrimina
tion that affects him.
A connected point of less general application may be
made. As shown above, statutes still in force in Arkansas
and South Carolina command extensive segregation, in
26 I U d .
50
schools, transportation, and places of public resort, though
none directly touches restaurants, except station restau
rants, restaurants in waiting rooms, restaurants at certain
places of public amusement, and (presumably) railroad
dining cars.26 These statutes are part of the present in
the strictest sense; they raise no problem about causal con
nection with past policies. Petitioners submit that this
Court may recognize that the custom of segregation is not
a set of isolated phenomena but a general pattern,27 and
that the general custom of restaurant segregation is shored
up and given dignity by the law’s command that some
restaurants, and other public facilities, be segregated.
This connection is emphasized by the fact that Congress,
in Title II of the Civil Rights Act of 1964, has clearly
recognized the intimate connection between travel and the
enjoyment of public accommodations, including those of
the very sort here involved. If the segregation of restau
rants is a clog on travel, is it unreasonable to conclude that
the segregation of travel reacts to reinforce restaurant seg
regation? If law has teaching authority, and if the res
taurant keeper and his white patron know that the authority
of the state’s law teaches that Negroes are unfit to ride a
streetcar in the same seats as whites, is it doubtful that
they will be led, to some degree, to the conclusion that
Negroes are unfit to eat at the same counter as whites?
In Robinson v. Florida,----- U. S .------ , 12 L. Ed. 2d 771,
this Court held that, although no state statute commanded
restaurant segregation, an administrative regulation requir
ing racially separated lavatories in non-segregated restau
rants sufficiently burdened desegregation to amount to for
bidden state action, since it was “ . . . bound to discourage
the serving of the two races together.” 12 L. Ed. 2d at p.
26 See supra, nn. 6-23.
27 See supra, p. 46.
51
773. Surely the knowledge that the state maintains a segre
gation code as to many of the most important concerns of
life amounts to a much greater discouragement. In Ar
kansas and South Carolina, the restaurant keeper who de
segregates does so knowing that he thereby transgresses a
state policy, expressed in many laws, that the races shall be
kept apart. To conclude that the expense of a separate toilet
is a greater discouragement to desegregation than is the
state’s official endorsement of travel, school, racetrack, or
even station restaurant segregation, is to elevate the tangi
ble above the moral. It is worse; it is to elevate the trivially
tangible over the ponderous moral influence of the state’s
solemn judgment that segregation is wise and right, a
judgment standing in its statutes where all may read. It is
even more than that; it is to elevate the only seemingly
tangible above the moral, for the administrative regulation
given this effect in Robinson was obviously invalid, under
the decisions of this Court, and could not in a pinch pre
vail. Like the Arkansas and South Carolina segregation
laws, though on a much smaller scale than these, it could
in the end serve only as an official state endorsement and
espousal of the segregation principle.
B. The E m ploym ent of the State Judicial Power, Together
W ith State Police and Prosecutors, to Enforce the Racial
Discrim ination Here Shown, Constituted Such A pplication
of State Power as to Bring to Bear the Guarantees of the
Fourteenth Am endm ent.
The doctrine of Shelley v. Kraemer, 334 U. S. 1 is here
clearly applicable. That case settled the proposition that
state action, of the kind requisite for invoking the Four
teenth Amendment, is to be found in the use of state ju
dicial machinery to enforce a privately-originated scheme
of racial discrimination. Unless that case is to be over
ruled, or irrationally “distinguished” away, it applies a
52
fortiori, to these cases, where not only the state judicial
powers but also the powers of police, prosecutors, and
attorneys-general have been brought to bear. In these
cases, the police were on the alert, ready to act as formal
witnesses to the “warning” required by the statute. The
judicial proceedings were criminal in nature, carried on
by the public prosecutor at public expense, with the state
appearing as a party in its own interest, in knowing sup
port of the discriminatory scheme, sanctioning the latter
within its own public order, and not merely standing by
to enforce private rights by civil process, as in Shelley
v. Kraemer, supra.
It is submitted, with the utmost respect, that no sug
gested distinction of this case from Shelley is successful.
It is true that covenants at bar in Shelley were func
tionally equivalent to zoning ordinances, or could be so
if adopted on a wide scale, as they doubtless were in many
localities.28 But this is not a ground of distinction of these
cases from Shelley. Instead, the similarity is striking.
Virtually universal, though nominally “private,” discrimi
nation in places of public accommodation, backed up by
alert police and by criminal prosecution, is the exact func
tional equivalent of restaurant segregation imposed by city
ordinances. It makes no difference to a Negro which of
two legal formalities assures his being barred from all the
good restaurants and most of the bad ones in town, any
more than it made a difference to him which doctrinal
route—“zoning” or “private covenant”—-led to his being
unable to live in the neighborhood he liked and could af
ford. Cf. Terry v. Adams, 345 U. S. 461.
28 Bell v. Maryland,----- U. S. —-—, ------ , 12 L. Ed. 2d 822, 857
(dissenting opinion).
53
The “property rights” act of 1866, 14 Stat. 27, 42 U. S. C.
§1982, furnishes no ground of distinction.29 That statute,
which antedated the Fourteenth Amendment, was used by
the Shelley Court only as an aid in establishing that the
right to hold property was within the terms of the Amend
ment. 334 U. S. 10-11. That could hardly have been
doubted. Both Shelley and Hurd v. Hodge, 334 IT. S. 24,
31 explicitly recognize that the statute, like the Fourteenth
Amendment, protects only against governmental action.
The true problem in Shelley v. Kraemer was not whether
the right to hold property and live in it was a protected
right, as in some sense clearly it was, but rather whether
that right was infringed by governmental authority, where
the judicial power was lent to the enforcement of a purely
private contractual scheme which practically frustrated the
enjoyment of the right.
In the present cases, similarly, all must agree that peti
tioners have, in some sense, a “right,” under the Four
teenth Amendment, not to be barred from restaurants.
They have that right just as clearly as they have the right
to purchase and enjoy property. The question is, against
what kind of action, on whose part, does the “right” run?
Shelley very clearly held that the “right” to enjoy prop
erty was infringed by forbidden state action when the judi
cial arm of the state lent its enforcement to a “purely
private” arrangement.
Of course the right claimed here differs from that
claimed in Shelley; one involves a house, the other a sand
wich. The similarity of the cases is located at the very
point at issue here—at the point of determining what de
fines “state action,” not for the purpose of deciding whether
the right is one the state may not invade—for that is ob
vious in both cases—but for the purpose of deciding
29 I b i d .
54
whether the state has invaded it, by judicially supporting
a discriminatory scheme of private origin. On this point,
the cases are not materially distinguishable.
It has been said that a “property” right is being vindi
cated in these cases, and that this distinguishes Shelley.30
It is not clear why this would make any difference. But
in any case a strict “property” right, of great value to the
possessor and adjudicated to be his by state law (the only
law defining property rights) was present in Shelley—the
easement created by the covenant.
The state court in McGhee v. Sipes, companion case to
Shelley, so described it; see Record in U. S. Supreme Court
in McGhee v. Sipes, 334 U. S. 1, No. 87, Oct. Term, 1947,
p. 51. The brief of the respondents, in Shelley, very care
fully argued the point that a property right, in the nature
of a negative easement, was at stake.31 This property right
was appurtenant to and importantly served the most valu
able property right of all, the enjoyment of one’s house.
Yet this Court held that judicial vindication of this prop
erty right, whether in equity or by damages, Barrows v.
Jackson, 346 U. S. 249, was forbidden.
It has been said that Shelley concerned only the willing
buyer and the willing seller.32 This is wrong on the face
of Shelley. The protagonist and chief actor was the most
unwilling neighbor, the covenantee on a solemn obligation
and the possessor of the property right in the nature of
a negative easement, all of which he had acquired by
“purely private” means, irrefragably valid under state
law. The one and only reason for his being, in all prac-
30 Id. at 858.
31 Brief for Respondents, p. 72, Shelley v. Kraemer, 334 U. S. I.
32 Bell v. Maryland,----- U. S .------ , ----- , 12 L. Ed. 2d 822, 858
(dissenting opinion).
55
tical effect, deprived of the benefit of his contractual and
property rights was that judicial action in merely enforc
ing them—not at all in creating them—was held to be for
bidden by the Fourteenth Amendment.
So, in these cases, the restaurant owner has a “property
right.” Absent the Fourteenth Amendment, he could have
the aid of the courts in using that property right to keep
any Negroes from being where he did not want them to
be and where his “property right” said he could keep them
from being—just as, absent the Fourteenth Amendment,
the owner of the valuable easement in Shelley could have
the aid of the courts in keeping Negroes from living where
the easement he held gave him the vested property right
to exclude them. But there is a Fourteenth Amendment,
and the extension of its ban to judicial enforcement of
racial discrimination is as valid in the one case as in the
other.
These cases do not raise the general question whether
the Fourteenth Amendment forbids the prosecution of
crimes against racists and their property.33 Of course it
does not. They raise, instead, the very question so clearly
raised and settled in Shelley—whether the state may lend
its aid to the enforcement of the racism itself, in the pub
lic life of the community. Shelley held that the state could
not recognize and enforce a property right well settled
under state law, where such enforcement gave sanction to a
pattern of racial discrimination, even though the discrimina
tion was “private” in origin. These cases present just that
issue. Neither in Shelley nor here is any attack made on
the right of the racist to be protected generally by the law.
The technical distinctions from Shelley quite fail. Equi
table and prudential considerations powerfully suggest the
33 Id. at p. 856.
56
undesirability of giving undeserved effect to such distinc
tions; on policy and equity, or as strict law, the present
cases are not less but more appealing than Shelley. The
setting up of arrangements to keep one’s neighborhood
white, however unworthy, has about it at least a slight
flavor of the genuinely rather than the fictitiously “private.”
The identity and characteristics of one’s neighbors are sub
stantial matters, next door to the domestic. No reasons of
equity or policy suggest the desirability of searching out
forced distinctions between these cases and Shelley, with
which they are so impressively similar, in that the key
factor in both instances is the knowing use of the judicial
power to enforce racial discrimination.
(It has been suggested34 that the Civil Eights Statute
cited above, 42 U. S. C. §1982, has some inverse application
to cases of this sort, and that, by virtue of its terms, the
owner of premises such as those involved in the present
cases enjoys a “ . . . federally guaranteed right . . . , ” a
“ . . . federal right . . . ” against the entry of unwanted
customers. With the greatest respect, it must be pointed
out that the allowing of any such “ . . . federally guaranteed
. . . ” right would have the effect of invalidating state pub
lic accommodations statutes. The statute, on its face, guar
antees only such rights as are enjoyed by all “white per
sons.” If no such persons may invoke the judicial machinery
to enforce racial discrimination, it would seem that the
statute is fully satisfied.)
Petitioners recognize that the Shelley doctrine might,
unless means of principled limitation are available, lead
to invasion of the purely private life, for the truth is that
“state action” of the Shelley kind often supports or stands
ready to support the authentically private choices of the
individual in his family and social life. Petitioners intend
34 Id. a t 859.
57
to urge upon the Court that the road to avoiding this un
warranted and absurd result lies not in elaborating un
sound distinctions in the realm of “state action”-—which
is obviously present here at least as much as it was in
Shelley—-but rather by the application of a reasonable
canon of interpretation to the substantive guarantees of
the Fourteenth Amendment. See Point II-D, infra.
Finally, under this Point and with reference back to Point
II-A, petitioners argue that, if either of them be thought
insufficient, in coaction they are irresistible. In their well
known social and historical context, these cases are con
victions, procured by the state, with its police, prosecutors,
and judicial machinery, for failure to obey an order given
in compliance with a custom which it has been the dearest
interest of the state to foster, and to which the state now
generally gives moral sanction by a Jim Crow code still
on the books. If these convictions are to stand, on the theory
that there is no state action in any form, Civil Rights
Cases, 109 U. S. 3, 14, then the “state action” concept
has come to be a symbol of futile technicality, lacking rela
tion to life.
C. The Obligation of These States Under the Fourteenth
A m endm ent Is an Affirmative One— the Affording of
“Equal Protection of the Laws.” That Obligation Is
Breached When, as Here, the State Maintains a Regim e of
Law Which Denies to Petitioners Protection Against Public
Racial D iscrimination, and Instead, Subordinates Their
Claim of Equality in the Common and Public Life of the
States to a Narrow P roperty Claim, Enforcing the Subordi
nation by the Extrem e Sanction of the Criminal Law.
On the face of the “equal protection” clause, that clause
imports no requirement of “state action.” “State action”—
a lawyer’s shorthand term nowhere occurring in the Consti
tution—is manifestly inapt to the equal protection clause.
What that clause says is that a state may not deny “equal
58
protection of the laws.” “Denial” may be by inaction alone,
as well as action, or by the subtle combination of inaction
and vigorous action that marks the cases now at bar.
It is submitted that the obligation imposed on the state
is that of maintaining a regime of law in which—without
reference to those barren distinctions between action and
inaction which have proven so useless in other fields of law
—the Negroes, whose protection was the dominating pur
pose of the Fourteenth Amendment, are in fact protected
against gross discrimination in the common public life of
the states.
The historical evidence supporting this view of the Four
teenth Amendment, and especially of its equal protection
clause, has been so recently and so fully presented in this
Court as to make otiose its full review.35 Petitioners believe
that it is of much greater importance—of decisive impor
tance—to be clear about just what it is that one may look
to see established by the historical data so lately canvassed.
Petitioners do not contend that the enormous mass of
historical evidence on the adoption of the Fourteenth
Amendment, and of the statutes tied in time and temper
with that Amendment, establishes, without any contradic
tion and without any countervailing evidence, that two-
thirds of each House of the 39tli Congress, and a majority
of each house of three-quarters of the ratifying state legis
latures would have thought that the Fourteenth Amendment
put the states under an obligation to maintain regimes of
law in which these petitioners would be protected against
public discrimination at lunch counters in establishments
to which they were invited as customers. Where general
language is used, for general purposes, that kind of burden
35 Brief for the United States as Amicus Curiae, pp. I l l ff, Bell
v. Maryland,----- U. S .------ , 12 L. Ed. 2d 822; Bell v. Maryland,
12 L. Ed. at 832.
59
can almost never be maintained. It could not be maintained
as to the Fourteenth Amendment right of Negroes to be
tried by juries selected without racial bias. It could not be
maintained in regard to the holding in Buchanan v. Warley,
245 U. S. 60, or in Brown v. Board of Education, 347 U. S.
483. It assuredly could not be maintained as to the holdings
in Terry v. Adams, 345 IT. S. 461, or in Marsh v. Alabama-,
326 U. S. 501. It could not have been maintained, mutatis
mutandis, as to the holding in Martin v. Hunter’s Lessee,
14 U. S. (1 Wheat.) 304. History rarely, if ever, affords
that kind of aid to the expounding of Constitutions.
On the other hand, nothing remotely approaching a defi
nite negative showing on the same question can be made.
Here petitioners refer, with deep respect, to the dissenting
opinion in Bell v. Maryland,-----U. S .------ , ----- , 12 L. Ed.
2d 822, 850. That opinion, in its Part IV, argues either from
silence or from the irrelevance of evidence elsewhere cited;
nothing positive is cited to establish the affirmative ex
istence of an intent to exclude from the Amendment’s
reach such state actions, and inactions, as these cases
illustrate.36
Petitioners submit, therefore, that nothing in history can
obviate the necessity for this Court’s looking to the general
purposes of the Reconstruction Amendments, and then in
dividuating and making concrete those purposes, in this
year, and in the light of all that is this year known concern
ing the position of the Negro in our society, the public
importance of public accommodations, and the relations
of state power to private power.
Petitioners submit that, for this purpose, the history re
ferred to in Mr. Justice Goldberg’s concurring opinion in
Bell v. Maryland,----- U. S .------ , ----- , 12 L. Ed. 2d 822,
36 See Bell v. Maryland, —
860-865 (dissenting opinion).
U. S. , 12 L. Ed. 2d 822,
60
832, and in the Supplemental Brief as Amicus Curiae tiled
by the United States in that case (at pp. I l l ff.), by a very
heavy preponderance establishes that the guarantee to
Negroes of equal access to places of public accommodation
ought to be taken to be one of the characteristics of the
regime of law which the states are commanded, by the
Fourteenth Amendment, to maintain. The historical data
put forward in those places showT a purpose to require
the maintenance of a society of substantial as well as formal
equality, with respect to the public life of the community.
Beyond this point, and with little more help from his
tory, this Court must proceed as in the earliest cases under
the Amendment:
We repeat, then, in the light of this recapitulation of
events, almost too recent to be called history, but which
are familiar to us all; and on the most casual exam
ination of the language of these amendments, no one
can fail to be impressed with the one pervading pur
pose found in them all, lying at the foundation of each,
and without which none of them would have been even
suggested; we mean the freedom of the slave race, the
security and firm establishment of that freedom, and
the protection of the newly made freemen and citizen
from the oppressions of those who had formerly exer
cised unlimited dominion over him. Slaughter House
Cases, 83 U. S. (16 Wall.) 36, 71.
One great purpose of these Amendments was to raise
the colored race from that condition of inferiority and
servitude in which most of them had previously stood
into perfect equality of civil rights with all other per
sons within the jurisdiction of the States. They were
intended to take away all possibility of oppression by
law because of race or color. Ex parte Virginia, 100
U. S. 339, 344-345.
6 1
What is this but declaring that the law in the States
shall be the same for the black as for the white; that
all persons, whether colored or white, shall stand equal
before the laws of the States and, in regard to the
colored race, for whose protection the Amendment was
primarily designed, that no discrimination shall be
made against them by law because of their color? The
words of the Amendment, it is true, are prohibitory,
but they contain a necessary implication of a positive
immunity, or right, most valuable to the colored race—
the right to exemption from unfriendly legislation
against them distinctively as colored; exemption from
legal discriminations, implying inferiority in civil so
ciety, lessening the security of their enjoyment of the
rights which others enjoy, and discriminations which
are steps towards reducing them to the condition of a
subject race. Strauder v. West Virginia, 100 U. S. 303,
307-308.
The legal systems of Arkansas and South Carolina were
confronted with an unavoidable choice. Two interests are
asserted. One is the interest of the owners of real property,
dedicated to a public business, generally opened to the pub
lic, and opened even to Negroes in all respects but one, in
effecting a racial discrimination with respect to facilities
dispensing the prime necessity of life. The other is the
interest of Negroes in being free from the tangible incon
veniences and moral humiliation of widespread racial dis
crimination in respect to the enjoyment of facilities other
wise altogether public. The choice between these interests
is a real choice.37 It does not lie in the nature of things
that one or the other must prevail. The legal system that
makes the choice is doing something. It is affirmatively
37 Cf. Bell v. Maryland,----- U. S .------ - , ----- , 12 L. Ed. 2d 822,
847-849 (concurring opinion) ; Id. at pp. 873-875 (opinion of
Justice Douglas).
62
electing to deny to Negroes the protection of the laws in
one respect, while granting the laws’ protection to wide
spread racial discrimination against them. Such a decision
is not and cannot be merely neutral; it weighs interests
and selects one for favoring and one for rejection.
In the cases imposing segregation by law under that
name, the state had weighed the interest of Negroes against
the interests of those whites who desired segregation, and
struck a balance in favor of satisfying the desires of the
latter. That decision was nullified by the Fourteenth
Amendment. In these cases, the state has weighed the
interests of the Negroes against the property interests of
store proprietors, and struck a balance in favor of the
latter. But the property claim of a store owner has no
greater dignity than the psychological comfort of white
citizens who want to eat in segregated surroundings and
who implement that preference by successfully supporting
the passage of segregation laws. If the latter interest is
not of sufficient weight to justify the state in supporting-
segregation, why should the former be? If no consideration
of policy can justify the state in choosing to support seg
regation in public places, how can a narrow “property
right,” which as a live interest consists only in the right to
exclude Negroes, have that effect?
“Property” is a part of law, and has its being in law.
American states and foreign nations do in fact balance the
claims of “property” against other claims, including the
claim to be free of racial discrimination. Free access to
places of public accommodation is one of the things our
legal culture commonly regulates, it is something law may
be expected to deal with.
The denial of protection against racial discrimination in
regard to places of public accommodation is a matter of
substance, both tangibly and morally. The regime that
63
denies this protection breaches its affirmative obligation
under the Fourteenth Amendment,
It has long been recognized by this Court that a state,
by merely permitting activity which frustrates a constitu
tional guarantee, may violate the Constitution. The opin
ions in Terry v. Adams, 345 U. S. 461, are instructive:
For a state to permit such a duplication of its elec
tion processes is to permit a flagrant abuse of those
processes to defeat the purposes of the Fifteenth
Amendment. . . . It violates the Fifteenth Amendment
for a state, by such circumvention, to permit within
its borders the use of any device that produces an
equivalent of the prohibited election (Justice Black
(with Justices Douglas and Burton), 345 U. S. at 469).
[Emphasis added.]
The application of the prohibition of the Fifteenth
Amendment to “any State” is translated by legal jargon
to read “State action.” This phrase gives rise to a
false direction in that it implies some impressive ma
chinery or deliberative conduct normally associated
with what orators call a sovereign state. The vital re
quirement is State responsibility—that somewhere,
somehow, to some extent, there be an infusion of con
duct by officials, panoplied with State power, into any
scheme by which colored citizens are denied voting
rights merely because they are colored (Justice Frank
furter, 345 IT. S. at 473).
The evil here is that the State, through the action and
abdication of those whom it has clothed with authority,
has permitted white voters to go through a procedure
which predetermines the legally devised primary (at
345 IT. S. at 477). [Emphasis added.]
Consonant with the broad and lofty aims of its
Framers, the Fifteenth Amendment, as the Fourteenth,
64
“refers to exertions of state power in all forms.” Ac
cordingly, when a state structures its electoral ap
paratus in a form which devolves upon a political
organization, the uncontested choice of public officials,
that organization itself, in whatever disguise, takes on
those attributes of government which draw the Con
stitution’s safeguards into play (Mr. Justice Clark
with Chief Justice Vinson and Justices Reed and
Jackson, 345 U. S. at 484).
The cases at bar are sharper. Here the state not only
permits conduct which frustrates and makes worthless the
Fourteenth Amendment guarantee against segregation by
public power, but also puts the weight of its criminal sanc
tions behind that conduct. Cf. Burton v. Wilmington Park
ing Authority, 365 U. S. 715; McCabe v. Atchison, Topeka
& 8. F. Ry. Co., 235 U. S. 151; Lynch v. United States, 189
F. 2d476 (5th Cir. 1951), cert. den. 342 U. S. 831; Catlette v.
United States, 132 F. 2d 902 (4th Cir. 1943).
It recently has been pointed out that the opinion in the
Civil Rights Cases, 109 U. S. 3, explicitly rested on the as
sumption that a failure by the state to provide equal access
to places of public accommodation would bring the Four
teenth Amendment into play. Mr. Justice Goldberg, con
curring in Bell v. Maryland,----- U. S .------ , ——, 12 L. Ed.
2d 822, 844-45. Cf. United States v. Cruikshank, 92 U. S.
542, 554-555.
Petitioners have contended here that the Fourteenth
Amendment imposes an affirmative obligation on the states
to protect against public racial discrimination. It is clear,
however, that federal judicial enforcement of that obliga
tion, in its affirmative sense, would present difficult prob
lems. Congress has now filled a part of the gap. It may
be that, as an affirmative obligation unsupported by imple
menting statute, this obligation would have to remain partly
65
a moral one; cf. Kentucky v. Dennison, 65 U. S. (24 How.)
66. But these cases raise none of these questions. If the
states, as petitioners here contend, have even so much as
a moral obligation, under the Fourteenth Amendment, to
maintain legal systems such as to make impossible this
gross public racial discrimination, then a fortiori no state
may, as in these cases, set its criminal law enforcement
machinery affirmatively in motion to support and defend
that discrimination.
D. None of the Theories of State Action” Urged by Petitioners
Needs to Result in the Extension o f Fourteenth Am endm ent
Guarantees to the Genuinely Private Concern of Individu
als, for a Reasonable Interpretation of the Substantive
Guarantees of the A m endm ent Can and Ought to Prevent
That Result.
Petitioners have urged that:
1. Where state-supported custom is the matrix of the
nominally private act of discrimination, the requisite “state
action” is found (II-A).
2. Where state judicial and prosecutorial power imple
ments and enforces racial discrimination, the requisite
“state action” is present, under the rule of Shelley v.
Kraemer, 334 U. S. 1 (II-B).
3. Where the state maintains a regime of law giving
legal sanction to widespread racial discrimination in public
places, the state so acts as to “deny” equal protection of
the laws (II-C).
It is submitted that no one of these theories concerning
“state action” is in itself difficult to follow or to accept.
Uneasiness about each of them, and about their coactive
effect, springs, it is respectfully suggested, from the fear
that following their logic to the limit will result in the
6 6
application of Fourteenth Amendment standards to the
truly private life.
Petitioners submit that this result, unwanted and absurd,
is logically to be avoided not by the elaboration of unsound
distinctions in the realm of “state action,” but rather by
the discernment and use of a canon of interpretation of
the Fourteenth Amendment, limiting that Amendment’s
force to the functionally public life. That methodologic
line, broadly warranted both by the history of the Amend
ment and by its placement in the total legal and racial con
text of our civilization, has the great merit of attempting
to draw the line in the place where the line is needed and
wanted. See Henkin, Shelley v. Kraemer: Notes for a
Revised Opinion, 110 IT. Pa. L. Rev. 473 (1962).
In these cases, the records show that no private or per
sonal associational interest is at stake. The “owners,” ulti
mately responsible for the decision to exclude petitioners,
do not personally figure in the events shown by testimony.
Nothing but a palpably fictitious personification can bring
any personal associative interest into these cases at all.
See the opinion of Mr. Justice Douglas in Bell v. Maryland,
----- U. S. ----- , ----- , 12 L. Ed. 2d 822, 867, where the
totally fictitious character of the “personal” associational
interests in these cases is exhaustively shown. It must be
an uncomfortable argument that can make its points only
by systematic metamorphosis of a business corporation
into a human being—by the systematic substitution of “he”
for the correct “it,” of “his” for the correct “its.”
By the same token, these cases concern events in the fully
public life, the part of life where privacy and private choice
are generally irrelevant. No one expects to choose his
surrounding company in a public restaurant, and cus
tomer-by-customer “choice” by proprietors or managers
is as good as unknown. Restaurant racial segregation, on
67
the other hand, is a regional and national public problem.
It defines the public racial character of cities and states.
It is a feature of that part of life to which “citizenship”
is fully relevant, if the “citizenship” granted by the Four
teenth Amendment is more than the right to be called
a “citizen” while being publicly treated as a sub-human.
See Mr. Justice Harlan, dissenting in The Civil Bights
Cases, 109 U. S. 3, 46-47; cf. IT. S. Const., Art. IV, §2.
There is no competing federal constitutional claim, such
as the interest in freedom of religion or freedom from
unauthorized search and seizure, to be weighed against peti
tioners’ claim to immunity from public racial discrimina
tion. Cf. Henkin, op. cit. supra, at pp. 495, 496.
The business places here concerned are abundantly
regulated by law; their conduct is a part of the normal
regulatory regime of modern law. South Carolina right
now has on its books a regulation requiring segregation in
carrier station restaurants; Arkansas, by regulating access
to certain public places, imposes regulation, by necessary
consequence, on the formation of the restaurateur-patron
relationship in those places. How can these states be heard
to assert that “private choice” is relevant to these situa
tions ?
Be facto segregation, by corporate ownership choice in
coaction with state criminal law, is the exact functional
equivalent of that segregation by law which is forbidden
by the Fourteenth Amendment. A minimal and technical
“property” interest is made to support a regime exactly
resembling that segregation which the Fourteenth Amend
ment forbids. Cf. Terry v. Adams, 345 U. S. 461, 466,
470.
None of these considerations, it must be made clear,
literally supplies “state action.” “State action,” rather,
6 8
is to be found in these eases under the theories expressed
in Points II-A to II-C, supra. The considerations just re
hearsed suggest the means for bringing it about that
realistic and clear-sighted views on “state action” not
bring the Fourteenth Amendment into the living-room.
The way to keep it out of the living-room is not to pretend
that state power does not support the choices made in the
living-room—for clearly it does—but rather, to consider
those very factors which make it absurd, within our legal
culture, to suppose that it substantially ought to be inter
preted to reach the living-room. Those factors have to do
not with “state action,” but with genuine as opposed to
fictitious privacy. They are factors which go not to the
presence or absence of “state action,” but to the reason
able interpretation of the substantive guarantees of the
Fourteenth Amendment.
This Court could not now, without violating all the wis
dom of the case-law process, attempt to decide every case
that intellectual curiosity might imagine, along the border
lines suggested by the above considerations. But this Court
can now take note of the fact that amply sufficient considera
tions, resting on the broadest common sense and quite
outside the “state action” field of force, can be invoked,
if the need should ever arise, to keep the Fourteenth Amend
ment out of the authentically private life of man, without
conjuring away the “state action” that so palpably exists
in these cases.
It has been suggested that the acceptance of theories
similar to those urged here would leave the Court helpless to
draw reasonable lines, adapted to keeping the Constitution
out of purely private relations.38 The “state action” con
cept has proven to be very far from a precise tool for this
38 Bell v. Maryland,----- U. S .------ , 12 L. Ed. 2d 867 (dissenting
opinion).
69
purpose. Nor is it true that legislation can or does exempt
the Court from weighing and assessing factors definable
only by degree.39 In administering the new Civil Eights
Act, for example, the courts will have to decide, presum
ably, whether “reasonable cause” exists to believe that a
“pattern or practice” of segregation exists (§206). Nor
is this process of judicial weighing confined to those cases
where the statute clearly invokes it. Whether, for example,
a proprietor “actually occupies” an establishment as his
“residence” (§201 (b)(1)) can very surely, in the border
line cases, call for a court’s assessment of matters of
degree.
Such decisions must always be made by courts. See
Holmes, J'., partially concurring in LeRoy Fibre Co. v.
Chicago M. & St. P. By., 232 U. S. 340, 354. The im
portant thing is to try to locate the line between the
very things it is desired to keep separate. In this context,
the line is needed between discrimination in the public
common life of communities and discrimination in the
private life of individuals. Its location there, with what
ever vagueness at first, at least puts it between the things
that ought to be separated, in consonance with the spirit
and purpose of the Fourteenth Amendment. The “state
action” concept can draw that line only by accident, by
conceptual manipulation; it never can begin to draw it
right. The concept of an opposition between the public,
communal life, and the private life, is a beginning toward
drawing the right line. That beginning once made, these
cases present no problem, for they are a very long way
from the line.
39 Id. at 866, 867.
70
III.
These Convictions Violate D ue Process in That There
Was Inadequate Conformity Between D efinite Statutes
and the Conduct Proved.
A. These Convictions in Both Cases Violated Due Process of
Law, in That They W ere Had Under Statutes Which, in the
Procedural and Evidentiary Context, Fail to Designate as
Criminal the Conduct Proven, W ith the Clarity R equired
Under Decisions of This Court.
In the very recent case of Bouie v. Columbia, ----- U. S.
----- , 12 L. Ed. 2d 894 (1964), this Court had occasion to
apply, to a “criminal trespass” statute of South Carolina,
the settled rule that due process is not afforded where pun
ishment is inflicted under a statute which fails, as a
matter of ordinary language, to designate the conduct
shown by evidence in the case. As that opinion suggests,
----- - U. S. at p p .----- , 12 L. Ed. 2d at pp. 897-98, the ob
jection to such a conviction may be in the alternative,
where the language of the statute is seemingly precise.
On the one hand, a conviction on a record showing con
duct that does not fall at all within the normal meaning
of the statute as written may be repugnant to the rule of
Thompson v. Louisville, 362 U. S. 199, as constituting
conviction without any evidence of commission of the
crime charged. On the other hand, if a judicial fiat of
“construction” stretches the statute to cover, in defiance
of the ordinary meaning of words, then the application of
that construction violates due process.
If the Fourteenth Amendment is violated when a per
son is required “to speculate as to the meaning of
penal statutes,” as in Lanzetta, or to “guess at [a
statute’s] meaning and differ as to its application,”
as in Connally, the violation is that much greater when,
71
because the uncertainty as to the statute’s meaning
is itself not revealed until the court’s decision, a per
son is not even afforded an opportunity to engage in
such speculation before committing the conduct in
question.
There can be no doubt that a deprivation of the
right of fair warning can result not only from vague
statutory language but also from an unforeseeable
and retroactive judicial expansion of narrow and pre
cise statutory language. As the Court recognized in
Pierce v. United States, 314 U. S. 306, 311, 62 S. Ct.
237, 239, “judicial enlargement of a criminal act by
interpretation is at war with a fundamental concept
of the common law that crimes must be defined with
appropriate definiteness.” Borne v. Columbia, ——
U. S. at p. ----- , 12 L. Ed. 2d at p. 899.
The cases at bar fall under one or the other of these
principles. Probably the second is the more applicable.
But in either event the convictions must be reversed.
The Arkansas statute reads as follows:
Any person who after having entered the business
premises of any other person, firm or corporation,
other than a common carrier, and who shall refuse to
depart therefrom upon request of the owner or man
ager of such business establishment, shall be deemed
guilty of a misdemeanor and upon conviction shall be
fined not less than fifty dollars ($50.00) nor more
than five hundred dollars ($500.00), or by imprison
ment not to exceed thirty (30) days, or both such
fine and imprisonment. Acts 1959, No. 14, §1.
The South Carolina situation is more complicated. The
warrant of arrest in the Hamm case designated no statute,
and the prosecutor refused to make election among the
72
statutes under which he might have been thought to be
proceeding (R. Hamm 6, 7). This fact constitutes a sepa
rate ground, though closely involved with the one now im
mediately under scrutiny, for reversal, and will be discussed
in Point III-B. For present purposes, it may be assumed40
that the City’s chief reliance was on Section 16-388 (2),
Code of Laws of South Carolina, 1952, as amended 1960:
Any person:
(1) Who without legal cause or good excuse enters into
the dwelling house, place of business or on the prem
ises of another person, after having been warned,
within six months preceding, not to do so or
(2) Who, having entered into the dwelling house, place
of business or on the premises of another person
without having been warned within six months not
to do so, and fails and refuses, without good cause
or excuse, to leave immediately upon being ordered
or requested to do so by the person in possession, or
his agent or representative, shall on conviction, be
fined not more than one hundred dollars, or be im
prisoned for not more than thirty days.
It is to be observed that both the Arkansas and the South
Carolina statutes are of very recent vintage; neither has
any solid history of judicial construction.
On its face (saving minor and irrelevant differences of
phraseology), each of these statutes requires the following
elements for the establishment of criminality:
1. Entry by defendant into the premises of another
person.
40 If the assumption is denied, then these convictions clearly fall,
for the other two statutes that figured would ground reversal, on
the authority of Bouie v. Columbia,----- U. S. ------ 12 L. Ed. 2d
894. See Point III-B, infra.
73
2. Refusal by defendant to depart from those premises.
(This is spelled out literally, in the Arkansas Statute, by
the word “therefrom”. But the case is no less clear for
South Carolina; it is impossible, in the context, to imagine
any other meaning for “leave” than “leave what has just
been referred to as having been entered into, namely, the
dwelling house, place of business, or . . . premises of an
other person . . . ”).
3. The prior giving, by an authorized person, of an or
der or request to leave the premises or place of business.
(As for the Arkansas statute, the “request” must be a
“request” to do what has just been referred to, “depart
therefrom”—namely, from the “business premises.” As
for the South Carolina statute, the order or request “to do
so” is an order or request to leave the dwelling house, place
of business, or premises; “to do so” has nothing else to
which to refer. If this is not what the language means,
one would have wholly to guess at its meaning.)
It is affirmatively shown, on the clear testimony of the
prosecution’s own principal witnesses in each of these
cases, that the order given was not an order to leave “the
premises,” or the “place of business,” in any normal ac
ceptation of these words, but an order to leave one par
ticular section of “the premises,” one location in the “place
of business.” One may disapprove of that refusal; one
may even think it a civil wrong. But it does not fall within
the terms of the statute.
In Hamm, one need go no further than the Arrest War
rant (R. Hamm 2), where the “unlawful trespass” was “re
maining at the lunch counter,” and “refusing to leave said
counter . . . after the Manager of said store . . . advised
him that he would not be served and specifically requested
him. to leave said lunch counter . . . ” Captain Hunsucker,
the arresting officer, testified that the Manager, in his
74
hearing, told petitioner that “ . . . he would have to ask
them to leave the lunch counter.” The very same order
(“I will ask you to leave the lunch counter”) was then
given by Captain Hunsucker. The same officer testified
that the Manager, at this same time, advised the peti
tioner’s companion that he could go to the check-out counter
to get a refund (R. Hamm 14). This statement is ab
solutely incompatible with an order to “leave” the prem
ises “immediately.” See South Carolina Code §16-386.
On the other hand, all this was against a background of
general welcome to Negroes, as far the rest of the premises
was concerned (R. Hamm 61). The petitioner was welcome
on “the premises” and was never asked to leave “the prem
ises.” This lunch counter was simply one of the depart
ments of the whole store, across an aisle from another de
partment (R. Hamm 58). It is clearly shown that what
was given here was not an order to leave the premises, but
an order to move away from one small section of the
premises, in no way disconnected from the rest, and form
ing, in union with the other “departments” (i.e., counters)
and not in disjunction from them, what would in ordinary
language be called the “premises” or “place of business”
of McCrory’s in Rock Hill.
The Lupper situation is similar. The expression “asked
to leave” occurs several times in testimony, but the am
biguity is resolved in the state’s own testimony. Of the
Manager, Officer Terrell testifies “He told us that he had
two boys that had refused to leave the lunch counter . . . ”
“He had requested our assistance to get them out from
the lunch counter” (R. Lupper 29). To another sit-inner,
one of the store managerial personnel said “ . . . we are
not prepared to serve you at this time and will you kindly
excuse yourself (R. Lupper 42),” a colloquialism for “leave
the table.” This lunch counter, on a mezzanine freely acces
sible by stairs, was simply a part of the “business prem
75
ises,” No order was ever given, clear or unclear, that these
petitioners leave the business premises. The order alleged
to have been given was to move away from one part of the
business premises; nothing suggests that, if they had moved
away from that part they would not have enjoyed the
general permission all Negroes enjoyed to shop in the
Glus Blass Store (R. Lupper 54).
A general construction of these statutes which would
make them fit these cases would have utterly ludicrous re
sults. Such a construction would mean that if a lady came
to the ribbon counter in McCrory’s, and a clerk thereunto
authorized requested her to move away from the ribbon
counter, and she stood there two minutes and a half (R.
Lupper 47—state’s witness said three to five minutes elapsed
from his “request” until his return with officers from across
the street, by which time petitioners had left the lunch coun
ter and were some distance away from it), then she could be
fined a substantial amount of money and sent to jail, though
her behavior was orderly and no damage ensued. It may
be that such a law would be valid. But it would clash so
sharply with all our cultural assumptions that the legis
lature would have to say very clearly that that is what is
meant.41 In these cases, the legislature has said rather
clearly that that is not what is meant. To stretch these
laws to cover these cases, one has to take “business prem
ises” or “place of business” to mean not “the business
establishment as a whole,” but “such section therein as
management may, ad hoc and without saying so, choose to
designate as a separate parcel of land.” Such a construc
tion constitutes exactly the sort of judicial ambush that
41 Such a requirement is not an unreasonable one, cf. Va. Code
§18.1-173 (1960) : “If any person shall without authority of law
go upon the . . . premises of another, or any part, portion or area
thereof . . . he shall be deemed guilty of a misdemeanor . . . ”
[Emphasis added.]
76
was condemned in Bouie v. Columbia, ——• U.S. ----- , 12
L. Ed. 2d 894 (1964).
In that ease, moreover, this Court had occasion to re
affirm the ancient distinction between civil and criminal
trespass. ----- U. S. at pp. ------ , 12 L. Ed. 2d at pp. 902,
903. If a man is standing by the pickles, in a large deli
catessen, and the Manager tells him, “Please move at least
six feet away from the pickles,” and if he stubbornly stays
where he is (in other respects behaving well), then perhaps
he is civilly liable for such damages as can be shown to
have ensued. It may even be that the Manager, using force
to move him, could validly plead manus molliter imposuit,
though one would expect, even on this, that pretty square
corners would have to be cut. But the trespass, if any, is
criminal only if clearly covered by a criminal trespass
statute, and such statutes are not and have never been
anywhere near coterminous in their coverage with the law
of civil trespass.
It is cheerfully admitted that these parallels seem at
first blush fanciful. The reason is simple; it would seem
unnatural and bizarre to bring the criminal law to bear in
the cases imagined, while the employment of that law seems
expectable and natural in the cases at bar, for all too ob
vious a reason. But these statutes must be judged and
construed in their sweeping generality and neutrality; it
is only their appearance of possessing those qualities that
saves them at all. In that sweeping generality, considered
as purely neutral enactments, they must either, as they
seem to do on their face, make criminal only the well-
understood act of failing to leave the “premises” after
being ordered to leave the “premises," in the normal under
standing of the quoted word, or else they make criminal
any disobedience to any order of a proprietor with respect
to the part of the “premises” where a person generally
welcomed may sit or stand for a very short time. In the
first and more natural meaning, no evidence in these rec
ords shows their violation here. {Thompson v. Louisville,
362 U. S. 199.) If the second and grossly strained meaning
be given to them by judicial fiat, these convictions are ob
noxious to the rule of Bouie v. Columbia, supra.
The distinction here is a highly substantial one. A state
might wish to put its criminal law behind the desire of
a proprietor to be altogether rid of certain people, with
out desiring to place the same extreme sanction behind his
orders to them as to where they may sit or stand. Order
ing a man out of your house, and ordering him not to sit
in a certain chair, are two different things. It is the first
of these things, on any normal understanding of English,
that these statutes bring under the extraordinary coverage
of criminal trespass law.
The appropriateness of a strict insistence on the actual
communication of the very order required by the applicable
law is brought out, on different facts, by Mr. Justice
Harlan, concurring in Garner v. Louisiana, 368 U. S. 157,
197, 198:
Nor do I think that any such request is fairly to be
implied from the fact that petitioners were told by
the management that they could not be served food
at such counters. The premises in both instances
housed merchandising establishments, a drug store in
Garner, a department store in Hoston, which solicited
business from all comers to the stores. I think the rea
sonable inference is that the management did not want
to risk losing Negro patronage in the stores by re
questing these petitioners to leave the “white” lunch
counters, preferring to rely on the hope that the ir
ritations of white customers or the force of custom
would drive them away from the counters. This view
7 8
seems the more probable in circumstances when, as
here, the “sitters’ ” behavior was entirely quiet and
courteous, and, for all we know, the counters may have
been only sparsely, if to any extent, occupied by white
persons. [Emphasis supplied.]
This passage incidentally, illustrates the normal usage of
the word “premises.”
These convictions, moreover, penalize actions which were
expressive of claims and of views. Stromberg v. California,
283 U. S. 359; Thornhill v. Alabama, 310 U. S. 88. The
requirements of statutory clarity are in such cases, for
reasons often stated by this Court, higher than in the gen
eral case. Winters v. New York, 333 U. S. 507.
To summarize, these statutes forbid disobedience to an
order to leave the “premises” or “place of business.” No
such order was given here; the order that was given was
an order to move away from one counter on the “premises”
or in the “place of business.” That such an order is not
tantamount to an order to leave the premises or the place
of business is shown with logical rigor by the fact that
one could obey it and still be on the premises and within
the place of business. Petitioners have been convicted of
a highly artificial offense, but the artifice has been unsuc
cessful, because the records show that even that offense
was not committed, and these convictions must fall under
the rule of Bouie v. Columbia,----- TJ. S .------ , 12 L. Ed. 2d
894, or under the rule of Thompson v. Louisville, 362 U. S.
199.
79
B. In the Hamm case, the D efendant Was Denied Due Process
of Laiv by the Refusal of the Prosecutor and Trial Judge
to Specify the Law Under Which He Was Charged, by the
Consequent Vagueness of the Law Set Forth in the Instruc
tions to the Jury, and by the Variance Between the Law
Charged the Jury and the Law on the Basis of W hich the
State A ppellate Courts Sustained D efendant’s Conviction.
There is an independently sufficient ground for outright
reversal of the conviction of petitioner Hamm. The arrest
warrant charged Hamm only with “Trespass,” naming no
statute (R. Hamm 3). The supporting affidavit, incorpo
rated in the warrant, charged that Hamm “did willfully
and unlawfully trespass upon privately owned property by
remaining . . . at the lunch counter in McCrory’s variety
store, which is customarily operated upon a segregated
basis, and refusing to leave said counter . . . [reciting
facts], all of which resulted in and constituted a trespass
by the above-named defendant, contrary to the peace and
dignity of the State of South Carolina, and in violation of
the ordinances of the City of Rock Hill. . . . ” (R. Hamm
2, 3)742 Before trial, defense counsel attempted to have
the judge require the prosecutor to specify the offense
charged, pointing out “that as a matter of due process of
law, . . . there are several criminal statutes on the book,
and we think that we are entitled to know if they are relying
on any ordinance or statutes, specifically which one we are
42 Among the facts recited in the affidavit was that “racial ten
sion was high due to numerous recent prior demonstrations against
segregated lunch counters . . ., both within the City and through
out the South generally, followed by numerous recent trials of
demonstrators before this and other Courts. . . . ” (R. Hamm 2).
The affidavit was amended immediately before trial “to eliminate
the references therein to what we have referred to as the back
ground situation” (statement of Mr. Spencer, the prosecutor, at
R. Hamm 5), although the amended form does not appear in the
record. Obviously the amendment did nothing to clarify the charge,
for the prosecutor thereafter insisted on his right to rely on “all
of the available law.” See succeeding text.
8 0
going to have to defend against” (R. Hamm 6). The prose
cutor took the position that he relied “upon all of the avail
able law that has a proper bearing upon a relationship to
the offense charged” and that “we are not required to
specify or spell out exactly what body or provision of law
we rely upon, but that we are in fact to rely upon any law
which the proof of the facts alleged in the warrant would
bring into force, with reference to the offense charged”
(R. Hamm 6).
Replying to the court’s suggestion that he mention “any
specific section which you are including without limiting
yourself” (R. Hamm. 7), the prosecutor said “amongst
other things” (ibid.) he relied on (a) the 1960 order-to-
leave-the-premises statute, S. C. Code §16-388(2), set out
in part III-A supra, p. 72; (b) the entry-after-notice statute,
S. C. Code §16-386, supra, pp. 4-5, considered by this Court
and held insufficient to permit conviction on similar facts in
Bouie v. Columbia,----- U. S .------, 12 L. Ed. 2d 894; and (c)
a Rock Hill ordinance, §19-12 of the Code of Laws of the
City of Rock Hill, supra, pp. 5, 6, which is on its face
unquestionably subject to the same objections that prevailed
in Bouie v. Columbia with respect to S. C. Code §16-386
(R. Hamm 7). All of this was “without waiving the right
to rely upon other sections” (ibid.), a right in which the
trial judge sustained the prosecution (ibid.).iZ
The judge’s charge did nothing to clear up the matter.
The court began by stating that the defendant was charged
with “the offense of trespass” (R. Hamm 84). “If you want
to know then what is meant by trespass,” the court pro
ceeded to read a portion of the 1960 order-to-leave-the-
premises statute, S. C. Code §16-388(2), which does not 43
43 In arguing motions for directed verdict and judgment of ac
quittal, defense counsel again pointed out that he was hampered
by lack of specificity of the charge, and requested an election by
the prosecution (R. Hamm 38).
8 1
speak of trespass (ibid.). Leaving no doubt that the defen
dant could be convicted outside the statute, the court con
tinued by charging on trespass generally, including ex
amples clearly unrelated to §16-388(2):
“I charge you further that a trespass is the doing of
unlawful act, or of lawful acts in an unlawful manner,
to the injury of another’s person or property, an un
lawful act committed with violence, actual or implied,
causing injury to the person, property, or relative
rights of another, and an injury or misfeasance to the
person, property or rights of another, done with force
and violence, either actual or implied in law.
“It comprehends not only forcible wrongs, but also
acts the consequences of which make them tortious, of
actual violence; an assault and battery is an instance;
of implied, a peaceable but wrongful entry upon a per
son’s land, or the wrongful remaining upon one’s prop
erty after ordered to leave. Trespass to property is a
crime at common law when it is accompanied by or
tends to create a breach of the peace. When a trespass
is attended by circumstances constituting breach of
the peace it becomes a public offense, subject to crim
inal prosecution” (R. Hamm 84, 85).
This was followed by a second statement of the terms of
§16-388(2), including the element of refusing to leave prem
ises after orders to leave “without good cause or good ex
cuse” (R. Hamm 85). The latter phrase was said to mean
a cause or excuse “valid in the eyes of the law” (ibid.), but
no instructions concerning applicable law were given;
rather the “determination of good cause or good excuse is
a question of fact for you, gentlemen of the jury” (ibid.).
The court did not indicate whether a defense of “good
cause or good excuse” was available for any other sort of
trespass than that said to be condemned by §16-388(2).
8 2
The jury found the defendant “guilty” generally (R.
Hamm 92). On appeal to the Sixth Judicial Circuit, Judge
Gregory affirmed the conviction, obviously without reliance
on S. C. Code §16-388(2), since his opinion states that he
finds “no distinguishing features” between Hamm’s case
and another trespass conviction, affirmed in the same opin
ion, involving a trespass “before enactment of the 1960
Trespass Act” (R. Hamm 97).44 The Supreme Court of
South Carolina in turn affirmed, relying exclusively on
§16-388(2) (R. Hamm 101-105) (notwithstanding its later
order on motion for a stay recites that Hamm was convicted
of the common law offense of breach of the peace, R. Hamm
107).
What emerges from this confusing record, in which no
body yet seems to have got straight the offense of which
Hamm was convicted, is this: (A) To the extent that the
jury was permitted to convict on a theory of “peaceable
but wrongful entry” (R. Hamm 85), the charge could be
grounded only upon S. C. Code §16-386 or Rock Hill ordi
nance §19-12. (See the prosecutor’s argument at R. Hamm
49-50.) Conviction so seated is impermissible under Bouie
v. Columbia, supra, and a charge permitting it as one of
several alternatives requires reversal under the principle
of Stromberg v. California, 283 IJ. S. 359, and Williams v.
North Carolina, 317 H. S. 287. (B) To the extent that the
jury was permitted to convict on the theory that Hamm
had done injury to McCrory’s “relative rights” by an act
of “implied” violence (R. Hamm 84), or an act which “tends
to create a breach of the peace” (R. Hamm 85) conviction
was had on no evidence, Thompson v. Louisville, 362 U. S.
44 Judge Gregory relied upon Greenville v. Peterson, 239 S C
298, 122 S. E. 2d 826 (1961), rev’d, 373 U. S. 244, and Charleston
v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512 (1961), rev’d ,___ U. S.
, 12 L. Ed. 2d 1033 (R. Hamm 98). Peterson sustained con
victions under S. C. Code §16-388(1), (2)—probably principally
under subsection (2). Mitchell sustained convictions under §16-386
on a theory of trespass ab initio.
83
199; Garner v, Louisiana, 368 U. S. 157; Taylor v. Louisi
a n a 370 U. S. 154, and, in any event, is forbidden by the
First and Fourteenth Amendments which do not allow a
State to punish peaceful demonstration activity merely be
cause it may “imply” violence, Terminiello v. Chicago, 337
U. S. 1, or anger others into unjustified violence, Cantwell
v. Connecticut, 310 U. S. 296; Edwards v. South Carolina,
372 IT. S. 229; cf. Wright v. Georgia, 373 U. S. 284. (C) To
the extent that the jury was permitted to convict under
§16-388(2), on the theory that Hamm “without good cause
or good excuse” (R. Hamm 85) refused to leave the lunch
counter, conviction is barred by the vagueness doctrine of
Thornhill v. Alabama, 310 U. S. 88, and Herndon v. Lowry,
301 IT. S. 242. The terms in which goodness of cause or
excuse were left to the uncontrolled discretion of the jury
makes this a classic instance where “the equilibrium be
tween the individual’s claims of freedom and society’s de
mands upon him is left to be struck ad hoc on the basis
of a subjective evaluation . . . [so] that there exists the risk
of continuing irregularity with which the vagueness cases
have been concerned.” Note, 109 IT. P a. L. R ev. 67, 93
(1960); see id. at 88-92, 107-109. Any judicial control or
judicial review which might otherwise have been adequate
to protect the defendant against these several separate
impermissibilities was made impossible by the prosecution
of the case from start to finish without definition of the
charge or charges tried.
The requirement of Cole v. Arkansas, 333 U. S. 196, and
Shuttlesworth v. Birmingham, 376 IT. S. 940, is that a crim
inal charge be so defined, and its definition so consistently
maintained throughout the prosecution, that a defendant
can fairly present his case to trial and appellate courts,
make and preserve his points of law and evidence, and
obtain such appellate review as a State’s procedures regu
larly make available. It is little enough to demand of the
prosecution that it name the statute or common-law prin
84
ciple under which it is proceeding in advance of trial and
adhere to forms of regularity thereafter. Cf. Russell v.
United States, 369 U. S. 749, 766-771. In Hamm’s case, all
efforts of defense counsel reasonably to delimit the charge
were resisted. Nothing in the case prior to the close of the
evidence gave defense counsel notice, for example, that the
jury would be charged on theories of trespass involving
a breach-of-the-peace component (E. Hamm 84-85), and
therefore no evidence was presented by the defense for the
purpose of persuading the jury on this issue. On the other
hand, the prosecutor was permitted without objection to
cross-examine the defendant concerning his motives for en
tering the McCrory store in the first instance (E. Hamm
75-77) after objection to cross examination of the defen
dant concerning an N. A. A. C. P. economic boycott of
McCrory’s was overruled on the theory that the defense
had put “intent” in issue (E. Hamm 73). Application of
regular rules of evidence in this posture was impossible,
since neither the court nor defense counsel could have
known what the issue of “intent” was, for want of definition
of the crime charged. The Sixth Judicial Circuit, review7-
ing the jury’s verdict, sustained it apparently under one
statute and the Supreme Court of South Carolina under
another—the two being equally plausible, and equally im
plausible, reconstructions of what the jury had done. The
effect of this was to deprive Hamm of his statutory right
of review by the Sixth Judicial Circuit, for if that court
had viewed the charge as limited to §16-388(2)—as did the
Supreme Court—it might have acquitted the defendant, for
the reason discussed in Part III-A supra, or for insufficient
proof of refusal to leave the premises, or otherwise; and
such an acquittal would have been unreviewable by the
South Carolina Supreme Court. Spartanburg v. Winters,
233 S. C. 526, 105 S. E. 2d 703 (1958) (alternative ground),
and authorities cited. No conviction obtained on such a
record can stand consistently with fundamental fairness.
85
CONCLUSION
W herefore , fo r th e fo re g o in g rea so n s , i t is re sp e c tfu lly
su b m itted th a t th e ju d g m e n ts below shou ld be re v e rsed .
Respectfully submitted,
J ack Greenberg
Constance B aker M otley
J ames M. N abrit, I I I
10 Columbus Circle
New York 19, New York
Charles L. B lack , J r .
346 Willow Street
New Haven, Connecticut
M atth ew J . P erry
L incoln C. J e n k in s , J r.
1107% Washington Street
Columbia, South Carolina
D onald J ames S ampson
W il l ie T. S m it h , J r .
125% Falls Street
Greenville, South Carolina
H arold B. A nderson
205 Century Building
Little Rock, Arkansas
W iley A. B ranton
119 E. Barraque
Pine Bluff, Arkansas
Attorneys for Petitioners
A n th o n y G. A msterdam
W illiam T. Colem an , J r.
M arvin E. F rankel
M ich a el M eltsner
F rank H . H efpron
L eroy D. Clark
George B. S m it h
Of Counsel
APPENDIX
Civil Rights Act o f 1 9 6 4
Title II
- 3 - Pub. Law 8 8 -3 5 2 78 STAT. 243,July 2, 1964
TITLE I I—INJUNCTIVE R ELIEF AGAINST DISCRIMINA
TION IN PLACES OF PUBLIC ACCOMMODATION
Sec. 201. (a) A ll 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 de
fined 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 pro
vides lodging to transient guests,- other than an establishment
located within a building which contains not more than five
rooms for rent or hire and which is actually occupied by the
proprietor 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 facilitv located on the premises of any retail establishment;
or any gasoline station;
(3) any motion picture house, theater, concert hall, sports
arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A) (I) which is physically located
within the premises of any establishment 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 commerce within the
meaning of this title if (1) it is one of the establishments described in
paragraph (1) of subsection (b ) ; (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; (3) in the case of an establishment described in paragraph
(3) of subsection (b), it customarily presents films, performances, ath
letic 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 located within the
premises of, or there is physically located within its premises, an
establishment the operations of which affect commerce within the
meaning of this subsection. For purposes of this section, “commerce”
means travel, trade, traffic, commerce, transportation, or communica
tion 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 establishment is sup
ported by State action within the meaning of this title if such dis
crimination 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
Equal access.
Establishments
a ffec tin g in
te r s ta te com
merce#
Lodgings#
R estaurants, e tc ,
Theaters, s ta
diums, etc#
Other covered
establishm ents.
Operations a f
fec ting com
merce c r i te r ia .
"Commerce#"
Support by S tate
ac tion .
Private estab lish
ments#
P ub. Law 8 8 -3 5 2 - 4 - July 2, 1964
78 STAT. 244,
E ntitlem ent.
In te rfe ren ce .
R estraining
orders, e tc .
A ttorneys1
fees .
N o tifica tion
of S ta te .
Community Re
la tio n s Serv
ic e .
Hearings and
inve s t i gat i ons.
to the customers or patrons of an establishment within the scope of
subsection (b).
S ec. 202. All persons shall be entitled to be free, at any establish
ment or place, from discrimination or segregation of any kind on
the ground of race, color, religion, or national origin, if such discrim
ination 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 with
hold 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 secured by section 201 or 202.
Sec. 204. (a) Whenever any person has engaged or there are
reasonable grounds to believe that any person is about to engage
in any act or practice prohibited by section 203, a civil action for
preventive relief, including an application for a permanent or tem
porary injunction, restraining order, or other order, may be
instituted by the person aggrieved and, upon timely application, the
court may, in its discretion, permit the Attorney General to intervene
in such civil action if he certifies that the case is of general public
importance. Upon application by the complainant and in such cir
cumstances as the court may deem just, the court may appoint an
attorney for such complainant and may authorize the commencement
of the civil action without the payment of fees, costs, or security.
(b) In any action commenced pursuant to this title, the court, in
its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs, and the United
States shall be liable for costs the same as a private person.
(c) In the case of an alleged act or practice prohibited by this title
which occurs in a State, or political subdivision of a State, which has
a State or local law prohibiting such act or practice and establishing
or authorizing a State or local authority to grant or seek relief from
such practice or to institute criminal proceedings with respect thereto
upon receiving notice thereof, no civil action may be brought under
subsection (a) before the expiration of thirty days after written
notice of such alleged act or practice has been given to the appropriate
State or local authority by registered mail or in person, pppvided that
the court may stay proceedings in such civil action pending the
termination of State or local enforcement proceedings.
(d) In the case of an alleged act or practice prohibited by this
title which occurs in a State, or political subdivision of a State, which
has no State or local law prohibiting such act or practice, a civil action
may be brought under subsection (a) : Provided. That the court may
refer the matter to the Community Relations Service established by
title X of this Act for as long as the court believes there is a reasonable
possibility of obtaining voluntary compliance, but for not more than
sixty days: Provided further, That upon expiration of such sixty-day
period, the court may extend such period for an additional period, not
to exceed a cumulative total of one hundred and twenty days, if it
believes there then exists a reasonable possibility of securing voluntary
compliance.
Sec. 205. The Service is authorized to make a full investigation of
any complaint referred to it by the court under section 204(d) and
may hold such hearings with respect thereto as may be necessary.
July 2, 1964 - 5 - Pub. Law 88-352
__________ 78 S T A T , 2 4 5 .
The Service shall conduct any hearings with respect to any such com
plaint in executive session, and shall not release any testimony given
therein except by agreement of all parties involved in the complaint
with the permission of the court, and the Service shall endeavor to
bring about a voluntary settlement between the parties.
Sec. 206. (a) Whenever the Attorney General has reasonable cause Suits by A ttor-
to believe that any person or group of persons is engaged in a pattern ney General,
or practice of resistance to the full enjoyment of any of the rights
secured by this title, and that the pattern or practice is of such a
nature and is intended to deny the full exercise of the rights herein
described, the Attorney General may bring a civil action in the appro
priate district court of the United States by filing with it a complaint
(1) signed by him (or in his absence the Acting Attorney General),
(2) setting forth facts pertaining to such pattern or practice, and
(3) requesting such preventive relief, including an application for a
permanent or temporary injunction, restraining order or other order
against the person or persons responsible for such pattern or prac
tice, as he deems necessai-y to insure the full enjoyment of the rights
herein described.
(b) In any such proceeding the Attorney General may file with the
clerk of such court a request that a court of three judges be convened
to hear and determine the case. Such request by the Attorney Gen
eral shall be accompanied by a certificate that, in his opinion, the
case is of general public importance. A copy of the certificate and
request for a three-judge court shall be immediately furnished by
such clerk to the chief judge of the circuit (or in his absence, the
presiding circuit judge of the circuit) in which the case is pending.
1 pon receipt of the copy of such request it shall be the duty of the Designation of
chief judge of the circuit or the presiding circuit judge, as the case judges,
may be, to designate immediately three judges in such circuit, of
whom at least- one shall be a circuit judge and another of whom shall
l>e a district judge of the court in which the proceeding was insti
tuted, to hear and determine such case, and it shall be the duty of
the judges so designated to assign the case for hearing at the earliest
practicable date, to participate in the hearing and determination
thereof, and to cause the case to be in every way expedited. An Appeals,
appeal from the final judgment of such court will lie to the Supreme
Court. r
In the event the Attorney General fails to file such a request in
any such proceeding, it shall be the duty of the chief judge of the
district (or in his absence, the acting chief judge) in which the case is
pending immediately to designate a judge in such district to hear and
determine the case. In the event that no judge in the district is
available to hear and determine the case, the chief judge of the district,
or the acting chief judge, as the case may be, shall certify this fact
to the chief judge of the circuit (or in his absence, the acting chief
judge) who shall then designate a district or circuit judge of the circuit
to hear and determine the case.
It shall be the duty of the judge designated pursuant to this section
to assign the case for hearing at the earliest practicable date and to
cause the case to be in every way expedited.
Sec. 207. (a) The district courts of the United States shall have D is tr ic t courts,
jurisdiction of proceedings instituted pursuant to this title and shall ju r isd ic tio n ,
exercise the same without regard to whether the aggrieved party shall
have exhausted any administrative or other remedies that may be
provided by law.
- 6 - Ju ly Z, 1964
To STAT,
Enforcement.
Suits by A ttor
ney General*
Costsj fees*
P ub. L aw 8 3 -3 5 2
E46.
(b) The remedies provided in this title shall be the exclusive means
of enforcing the rights based on this title, but nothing in this title
shall preclude any individual or any State or local agency from assert
ing any right based on any other F ederal or State law not inconsistent
with this title, including any statute or ordinance requiring nondis
crimination in public establishments or accommodations, or from pur
suing any remedy, civil or criminal, which may be available for the
vindication or enforcement of such right.
TITLE III—DESEGREGATION OF PUBLIC FACILITIES
S ec. 301. (a) Whenever the Attorney General receives a complaint
in writing signed by an individual to the effect that he is being
deprived of or threatened with the loss of his right to the equal
protection of the laws, on account of his race, color, religion, or
national origin, by being denied equal utilization of any public
facility which is owned, operated, or managed by or on behalf of any
State or subdivision thereof, other than a public school or public
college as defined in section 401 of title IV hereof, and the Attorney
General believes the complaint is meritorious and certifies that the
signer or signers of such complaint are unable, in his judgment, to
initiate and maintain appropriate legal proceedings for relief and
that the institution of an action will materially further the orderly
progress of desegregation in public facilities, the Attorney General is
authorized to institute for or in the name of the United States a civil
action in any appropriate district court of the United States against
such parties and for such relief as may be appropriate, and such court
shall have and shall exercise jurisdiction of proceedings instituted
pursuant to this section. The Attorney General may implead as
defendants such additional parties as are or become necessary to the
grant of effective relief hereunder.
(b) The Attorney General may deem a person or persons unable to
initiate and maintain appropriate legal proceedings within the
meaning of subsection (a) of this section when such person or persons
are unable, either directly or through other interested persons or
organizations, to bear the expense of the litigation or to obtain effec
tive legal representation; or whenever he is satisfied that- the institu
tion of such litigation would jeopardize the personal safety, employ
ment, or economic standing of such person or persons, their families,
or their property.
S ec. 302. In any action or proceeding under this title the United
States shall be liable for costs, including a reasonable attorney’s fee,
the same as a private person.
Sec. 303. Nothing in this title shall affect adversely the rigid of any
person to sue for or obtain relief in any court against discrimination
in any facility covered by this title.
Sec.. 304. A complaint as used in this title is a writing or document
within the meaning of section 1001, title 18, United States Code.62 S ta t . 749.
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