Correspondence from Rodney to Karlan; Affidavit of Revius O. Ortique, Jr.; of Paul R. Valteau, Jr.; of Israel M. Augustine, Jr.; of Silas Lee, III
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April 26, 1988
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Brief Collection, LDF Court Filings. Griffin v. Maryland Brief and Record Extract of Appellants, 1960. 339a1bbf-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b06e1312-4638-4ab9-b43f-d6d184393ffb/griffin-v-maryland-brief-and-record-extract-of-appellants. Accessed May 15, 2025.
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IN THE
Court of Appea l s of M a r y l a n d
September Term, 1960
No. 2 4 8
W illiam L . Gr iffin , et al., Appellants,
vs.
S tate of Maryland, Appellee,
and
Cornelia Greene, et al., Appellants,
vs.
S tate of Maryland, Appellee.
Appeal From the Circuit Court for Montgomery County
(James H. Pugh, Judge)
BRIEF AND RECORD EXTRACT OF APPELLANTS
Charles T. D uncan
J oseph H. S harlitt
Claude B. K ahn
8532 Freyman Drive
Chevy Chase, Maryland
Attorneys for Appellants
L ee M. H ydeman
Of Counsel
P ress o f B yro n S. A d a m s , W a s h in g t o n , D . C.
INDEX
TABLE OF CONTENTS
Page
Statement of the Case ............................................... 1
Questions Presented ..................................................... 3
Statement of Facts ....................................................... 4
Summary of Arguments .............................................. 7
Argument ....................................................................... 8
I . T h e R equirements for Conviction U nder A r
ticle 27, S ection 577, of the A nnotated Code
of Maryland (1957 E dition), W ere N ot Met
in T hat A ppellants’ A cts W ere N ot W anton,
A ppellants W ere N ot Given P roper N otice,
and A ppellants W ere A cting U nder A B ona
F ide Claim of R ight ................................................ 8
II. T h e A rrests and Convictions of A ppellants
Constitute an E xercise of S tate P ower T o
E nforce R acial S egregation in V iolation of
R ights P rotected B y th e F ourteenth A mend
ment to the U nited S tates Constitution and
B y 42 U.S.C. §§ 1981 and 1982 ........................ 12
Conclusion ..................................................................... 19
TABLE OF CITATIONS
Cases :
Baltimore Transit Co. v. Faulkner, 179 Md. 598, 20
A.2d 485 (1941) ................................................. 8
Barrows v. Jackson, 346 U.S. 249 (1953) ......... ...15,16
Buchanan v. Warley, 245 U.S. 60, (1917) ................ 9
City of Greensboro v. Simkins, 246 F.2d 425 (4th
Cir. 1957) ............................................................ 13,14
City of Petersburg v. Alsup, 238 F.2d 830 (5th Cir.
1956), cert, denied 353 U.S. 922 ........................
Civil Rights Cases, 109 U.S. 3 (1883) ......................
13
13
11 Index Continued
Cooper v. Aaron, 358 U.S. 1 (1958) ........................... 9
Dawson v. Mayor and City Council of Baltimore, 220
F.2d 386 (4th Cir. 1955), aff’d per curiam 350
U.S. 877 .................................................................. 13
Department of Conservation v. Tate, 231 F.2d 615
(4th Cir. 1956) cert, denied 352 U.S. 838 ........... 13
Dennis v. Baltimore Transit Co., 189 Md. 610, 57
A.2d 813 (1947) ................................................... 8
Drews v. Maryland, — Md. —, No. 113, September
Term, 1960 .......................................................... 14,18
Durkee v. Murphy, 181 Md. 259, 29 A.2d 253 (1942) .. 14
G-reenfeld v. Maryland Jockey Club of Baltimore, 190
Md. 96, 57 A.2d 335 (1948) ................................... 17
Holmes v. City of Atlanta, 223 F.2d 93 (5th Cir.
1955), aff’d per curiam 350 U.S. 879 .................... 13
Interstate Amusement Co. v. Martin, 8 Ala. App. 481,
62 So. 404 (1913) ................................................. 12
Jones v. Marva Theatres, Inc., 180 F. Supp. 49 (D.
Md. 1960) ................................................................ 13
Kansas City, Mo. v. Williams, 205 F.2d 47 (8th Cir.
1953), cert denied 346 U.S. 826 ........................... 13
Marsh v. Alabama, 326 U.S. 501 (1946) ..................... 16
Martin v. Struthers, 319 U.S. 141 (1943) ..................... 16
McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950) ..................................................................... 14
Muir v. Louisville Park Theatrical Ass’n., 202 F.2d
275 (6th Cir. 1953), aff’d per curiam 347 U.S.
971 ........................................................................... 13
New Orleans City Park Improvement Ass’n. v. Detiege,
252 F.2d 122 (5th Cir. 1958), aff’d per curiam 358
U.S. 54 ................................................................... 13
Plessy v. Ferguson, 163 U.S. 537 (1896) .................. 14
Rice v. Arnold, 45 So. 2d 195 (Fla. 1950), vacated 340
U.S. 848 .................................................................. 13
Shelley v. Kraemer, 334 U.S. 1 (1948) ......................15,16
Terry v. Adams, 345 U.S. 461 (1953) ......................... 15
Tonkins v. City of Greensboro, 276 F.2d 890 (4th Cir.
I960) ....................................................................... 13
Valle v. Stengel, 176 F.2d 697 (3rd Cir. 1960) ............. 17
Page
Index Continued iii
Constitution and S tatutes: Page
Constitution of the United States:
Fourteenth Amendment...................................7, 8,13,14,
15,16,18
United States Code:
Title 42, Section 1981 ............................................7,11,17
Title 42, Section 1982 ............................................7,11,17
Annotated Code of Maryland (1957 edition):
Article 27, Section 576 ............................................... 8
Article 27, Section 577 ...................................... 2, 3, 4, 5, 6,
7, 8, 9, 10
Article 27, Section 578 ............................................... 8
Article 27, Section 579 ............................................... 8
Article 27, Section 580 ............................................... 8
APPENDIX
Docket Entries and Judgment Appealed From
Warrants of Arrest (Griffin, et al.) ..................
Warrants of Arrest (Greene, et al.) ................
Proceedings (Griffin, et al.) ...............................
Testimony at Trial:
Francis J. Collins
Direct ..........................................................
Cross ............................................................
Abram Baker
Direct ..........................................................
C ross............................................................
Re-Redireet .................................................
Kay Freeman
Direct ..........................................................
Cross ................................
Page
E. 1
E. 11
E. 12
E. 13
E. 14
E. 18
E. 22
E. 24
E. 26
E. 30
E. 32
IV Index Continued
Opinion of Court (Griffin, et al.) ....................................E. 33
Proceedings (Greene, et al.) .......................................... E. 37
Testimony at Trial:
Francis J. Collins
Direct ......................................................................E. 37
C ross..........................................................................E. 39
Abram Baker
Direct ......................................................................E. 40
C ross....................................................................... E. 41
Redirect ..................................................................E. 44
Recross....................................................................E. 46
Re-Redireet ...................................................... E. 46
Lenord Woronoff
Direct ..................................................................... E. 46
C ross........................................................................E. 47
Ronyl J. Stewart
Direct ............................................... E. 48
Martin A. Schain
Direct ......................................................................E. 51
C ross................................................................. ,E. 51
Abram Baker (Recalled)
Direct ......................................................................E. 52
C ross.......................................................................... E. 53
William Brigfield
Direct ......................................................................E. 59
Opinion of Court (Greene, et al.) ..................................E. 60
State’s Exhibit No. 8 A .....................................................E. 66
State’s Exhibit No. 8 B .....................................................E. 75
Page
IN THE
C o u r t of Appea l s of M a r y l a n d
September Term, 1960
No. 248
W illiam L. Gr iffin , et al., Appellants,
vs.
S tate of Maryland, Appellee,
and
Cornelia Greene, et al., Appellants,
vs.
S tate of Maryland, Appellee.
Appeal From the Circuit Court for Montgomery County
(Jam es H. Pugh, Judge)
BRIEF OF APPELLANTS
STATEM ENT OF THE CASE
Appellants William L. Griffin, Marvous Saunders, Michael
Proctor, Cecil T. Washington, Jr., and Gwendolyn Greene
(hereinafter referred to as Appellants Griffin et al.) were
arrested on June 30, 1960, and charged in warrants issued
by a Justice of the Peace of Montgomery County with
trespassing on June 30, 1960, on the property of Glen
Echo Amusement Park in violation of Article 27, Section
2
577, of the Annotated Code of Maryland (1957 edition).
All of the aforementioned Appellants are members of
the Negro race.
Appellants Cornelia A. Greene, Helene D. Wilson, Mar
tin A. Schain, Bonyl J. Stewart, and Janet A. Lewis
(hereinafter referred to as Appellants Greene et al.) were
arrested on July 2, 1960, and charged in warrants issued
by a Justice of the Peace of Montgomery County with
trespassing on July 2, 1960, on the property of Glen Echo
Amusement Park in violation of the same statute cited
above. Appellants Greene, Stewart, and Lewis are mem
bers of the Negro race and Appellants Wilson and Schain
are members of the Caucasian race.
Article 27, Section 577, of the Annotated Code of Mary
land (1957 edition), provides as follows:
§ 577. Wanton trespass upon private land.
Any person or persons who shall enter upon or cross
over the land, premises or private property of any
person or persons in this State after having been duly
notified by the owner or his agent not to do so shall
be deemed guilty of a misdemeanor, and on conviction
thereof before some justice of the peace in the county
or city where such trespass may have been committed
be fined by said justice of the peace not less than one,
nor more than one hundred dollars, and shall stand
committed to the jail of county or city until such fine
and costs are paid; provided, however, that the person
or persons so convicted shall have the right to appeal
from the judgment of said justice of the peace to the
circuit court for the county or Criminal Court of Balti
more where such trespass was committed, at any time
within ten days after such judgment was rendered;
and, provided, further, that nothing in this section
shall be construed to include within its provisions
the entry upon or crossing over any land when such
entry or crossing is done under a bona fide claim of
3
right or ownership of said land, it being the intention
of this section only to prohibit any wanton trespass
upon the private land of others.
Appellants were arraigned, pleaded not guilty, and waived
a jury trial. The cases of Appellants Griffin et al., were
consolidated for trial, by consent, and tried on September
11, 1960, in the Circuit Court for Montgomery County,
Maryland, before Judge James H. Pugh. The cases of
Appellants Greene et al., similarly were consolidated for
trial and tried on September 11, 1960, in the same Court
and before the same judge.* Each of the Appellants (de
fendants below) was found guilty as charged and fined.
QUESTIONS PRESEN TED
1. Are the following elements of Article 27, Section 577,
of the Annotated Code of Maryland (1957 edition), each of
which is necessary to support a conviction, established by
the record:
a. Were the actions of Appellants wanton within
the meaning of the statute!
b. Was the statutory requirement of due notice by
the owner or his agent not to enter upon or cross
over the land in question met!
c. Were Appellants, who were attempting to assert
constitutional, statutory, or common-law rights, acting
under a bona fide claim of right within the meaning of
the statute!
2. Did the arrest and conviction of Appellants violate
or interfere with the rights secured to them by the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment to the Constitution of the United States or the
provisions of 42 U.S.C. §§1981 and 1982!
* The records of the two consolidated cases were consolidated into one
record on appeal pursuant to a letter, dated November 16, 1960, from the
Chief Deputy Clerk of the Court of Appeals of Maryland to counsel for
the Appellants.
4
STATEM ENT OF FACTS
On June 30, 1960, Appellants Griffin et al. entered onto
the property of Glen Echo Amusement Park (E. 15, 16),
a park operated by Kebar, Inc., a Maryland corporation,
under a lease from Rekab, Inc., also a Maryland corpora
tion and the owner of the property (E. 22, 23). The officers,
stockholders, and directors of both corporations are the
same persons (E. 22, 26). The park is located in Mont
gomery County, Maryland (E. 15). The owners' and oper
ators of the park employ National Detective Agency, a
District of Columbia corporation, to provide a force of
guards at the park (E. 18, 24), and on June 30, 1960,
and at all times pertinent to this action, the aforementioned
guards were under the charge of Francis J. Collins (here
inafter referred to as “ Lt. Collins” ), an employee of Na
tional Detective Agency (E. 14, 18) who also holds a com
mission from the State of Maryland as a Special Deputy
Sheriff for Montgomery County, Maryland (E. 18).
When Appellants Griffin et al. entered the park, they
proceeded to the carrousel which is located within the park
and took seats thereon (E. 16). When an attendant ap
peared, Appellants Griffin et al. tendered valid tickets for
this ride which had been purchased and transferred to
them by others (E. 20, 31). The attendant refused to
accept the tickets and also refused to start the carrousel
(E. 32). After a short time Lt. Collins approached
Appellants Griffin et al. and advised them that the
park was segregated and that Negroes were not per
mitted therein; he further advised that Appellants Griffin
et al. should leave the park or he would cause their arrest
(E. 16, 17, 19). Appellants Griffin et al. refused to
leave, whereupon Lt. Collins arrested them, transported
them to an office located on the park property, and notified
the Montgomery County Police, who came and took Appel
lant to a police station located in Bethesda, Maryland (E.
17), where they were charged with violations of Article 27,
5
Section 577, of the Maryland Code Annotated (1957 edi
tion) (E. 11).
At all times pertinent hereto the conduct of Appellants
Griffin et al. was orderly and peaceable (E. 21, 22, 31);
the policy of the park was to refuse admission to Negroes
solely on account of their race (E. 19, 23, 24, 25); and it was
pursuant to this policy that Appellants Griffin et al. were
refused service and arrested (E. 19, 24). Admission to the
park is free and there is free and open access to the park
through unobstructed entry ways (E. 20); the tickets
which were in the possession of Appellants Griffin et al.
were valid, duly purchased, and without limitation on
transfer (E. 20, 31); said tickets could be purchased
at a number of booths located within the park (E. 20); and
no refund or offer to make good the tickets in any way was
made by the operators of the park to Appellants Griffin
et al. (E. 20).
Glen Echo Amusement Park advertises through various
media, such as press, radio, and television, as to the avail
ability of its facilities to the public and invites the public
generally, without mention of its policies of racial dis
crimination, to come to the park and use the facilities
there provided (E. 25, 31). In addition to the car
rousel the park offers various other facilities (E. 32).
Appellants Greene et al. were arrested on July 2, 1960,
within the confines of a restaurant located in Glen Echo
Amusement Park (E. 38), under circumstances sub
stantially similar to those surrounding the arrest of Ap
pellants Griffin et al. This restaurant was operated by
B & B Catering Co., Inc., under an agreement with Kebar,
Inc. (E. 40, 41).
In order to establish the relationship between these cor
porations, two documents were admitted into evidence (E.
53). The first, dated August 29, 1958, covered the “ 1959
and 1960 Seasons” (E. 75). The second, undated and
consisting of six pages, covered the period commencing on
6
or about April 1, 1957, and ending on or about Labor Day,
September, 1958 (E. 66). Officers of Kebar, Inc., and
B & B Catering Co., Inc., testified that the two documents
constituted the entire agreement between the parties in
effect on the day Appellants Greene et al. were arrested
(E. 53, 59). Appellants objected to the introduction of
the second document (E. 53).
When Appellants Greene et al. entered the restaurant,
the attendants refused to serve them (E. 49, 51) and
closed the counter (E. 51, 52). Shortly thereafter, Lt.
Collins appeared and advised Appellants Greene et al. that
they were undesirable and that if they did not leave, they
would be arrested for trespassing (E. 38, 39, 49).
Appellants Greene et al. refused to leave, whereupon Lt.
Collins arrested them, transported them to an office located
on the park property, and notified the Montgomery County
Police, who took them to a police station located in Bethes-
da, Maryland (E. 39), where Appellants Greene et al. were
charged with violations of Article 27, Section 577, of the
Annotated Code of Maryland (1957 edition) (E. 12). The
arrests were made to implement the policy of the operators
of the park to maintain racial segregation (E. 44, 47).
Appellants’ conduct was peaceful and orderly at all times
pertinent hereto (E. 39, 50). The facts' concerning
ownership and operation of Glen Echo Amusement Park
(E. 40) and its policies of racial exclusion (E. 44, 47),
Francis J. Collins, and the National Detective Agency
guards (E. 37, 38, 39), set forth above, apply equally to
Appellants Greene et al. as they do to Appellants Griffin
et al.
At the trials held on September 11 and 12, 1960, re
spectively, all of the Appellants were found guilty as
charged and fined (E. 36, 65). It is from these convictions
that this appeal is taken.
7
SUMMARY OF ARGUMENTS
The record does not support the convictions of Appel
lants because of failure to meet the requirements of Ar
ticle 27, Section 577, of the Annotated Code of Maryland
(1957 edition), under which they were convicted. First,
the acts of Appellants were not wanton but were at all
times peaceable and orderly and cannot be characterized
as reckless or malicious. Second, Appellants were not
given the statutory notice required, since no notice was
given to them at or prior to the time of entry into the place
of public accommodation involved. Furthermore, Appel
lants Greene et al. were given no notice whatever by duly
authorized agents of the restaurant in which they were
arrested. Third, Appellants entered and remained on the
property in question under a bona fide claim of right and
were acting under that claim when they were arrested.
The arrests and convictions of Appellants constituted
an unlawful interference with the constitutionally pro
tected rights of Appellants under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment
to the Constitution of the United States. Appellants are
protected by the Constitution against the use of state
authority to enforce the private racially discriminatory
policies of a person whose property is open to use by the
public as a place of public service and accommodation.
Further, appellants are entitled under the Constitution
and as specified in 42 U.S.C. §§ 1981 and 1982 to be
free from interference under color of state law with the
making and enforcing of contracts or the purchasing of
personal property on account of race or color. Moreover,
the arrests and convictions of Appellants were not a rea
sonable exercise of the police power of the state necessary
to maintain law and order.
8
I
ARGUM ENT
The R equirem ents for Conviction U nder A rticle 27, Section
577, of the A nnotated Code of M aryland (1957 Edition),
W ere Not M et In T hat A ppellan ts ' Acts W ere Not W anton,
A ppellants W ere Not G iven P roper Notice, and A ppellants
W ere A cting U nder a Bona Fide C laim of R ight.
A prerequisite to violation of Article 27, Section 577, of
the Annotated Code of Maryland (1957 edition), is wanton
ness. The statute is clear on its face in this regard, since
it is entitled “Wanton trespass upon private land.” In
addition, the statute concludes with the statement that it is
“ the intention of this section only to prohibit any wanton
trespass upon the private land of others” (emphasis sup
plied). Moreover, the use of “wanton” in this section is
in contradistinction to other criminal provisions of the
Annotated Code of Maryland relating to criminal trespass
which do not contain this requirement. Article 27, Sections
576, 578, 579, and 580, Annotated Code of Maryland (1957
edition).
“ Wanton” normally means a malicious or destructive
act. While this Court has not construed “ wanton” as used
in Article 27, Section 577, it has construed “wanton” in
other contexts. In Dennis v. Baltimore Transit Co., 189
Md. 610, 617, 56 A.2d 813 (1947), this Court stated. “ [t]he
word wanton means characterized by extreme recklessness
and utter disregard for the rights of others” , citing Balti
more Transit Co. v. Faulkner, 179 Md. 598, 602, 20 A.2d 485
(1941). In recognizing the need for a finding that Appel
lants’ conduct was wanton, the Trial Judge, in his opinion
in one of these cases in the lower court stated that
“ wanton” means “ . . . reckless, heedless, malicious,
characterized by extreme recklessness, foolhardiness and
reckless disregard for the rights or safety of others, or
of other consequences” (E. 33).
9
It is difficult to comprehend the manner in which Appel
lants’ conduct could be deemed wanton for purposes of
conviction under the criminal statute here involved. The
record is clear that the Appellants at all times conducted
themselves in a peaceable and orderly manner. They en
tered a place of public accommodation to which they, as
members of the general public, had been invited through
advertisement; they entered the usual and unobstructed
route of ingress and egress ; and they were attempting to
do no more than make use of the services offered at the
time of their arrest. The act for which they were arrested
was their refusal to leave under the belief that they were
entitled to enjoy these servics free from interference by
the state on account of race or color.
Moreover, they peacefully submitted to arrest. The
Trial Judge, in part, seemed to base the finding of wanton
ness on the possibility that the presence of a Negro in a
place of public accommodation, the proprietors of which
maintain a policy of racial discrimination, might produce
a riot. Not only is this the result of archaic thinking; it
also is contrary to the proposition frequently enunciated by
the Supreme Court of the United States that the rights of
private individuals are not to be sacrificed or yielded to
potential violence and disorder brought about by others.
See Cooper v. Aaron, 358 U.S. 1, 16 (1958); Buchanan v.
Warley, 245 U.S. 60, 81 (1917).
The other basis for this finding of wantonness is the
refusal of Appellants, because of their belief in their right
to enjoy the services offered, to leave the premises upon
being requested to do so. This, in and of itslf, is not a
proper basis for a finding of wantonness, since the activity
of Appellants was not characterized by that extreme reck
lessness or foolhardiness which is required in order to
arrive at a determination of the type of conduct punishable
under the statute.
A second prerequisite to a valid conviction under Article
27, Section 577, of the Annotated Code of Maryland, is due
10
notice by the owner or his agent not to enter upon or cross
over his land, premises, or property. The language of the
statute requires prior notice as a condition of conviction.
It only applies to an entry or crossing “ after having been
duly notified by the owner or his agent not to do so. ’ ’ In the
instant cases, no notice was posted nor was any notice
orally communicated to Appellants prior to their entry
onto the land. Appellants had entered through an unre
stricted means of ingress, open to the public, who were
permitted and, in fact, invited to enter and use the facili
ties of the park. Appellants Griffin et al. received no
communication from anyone connected with the park until
they were on the carrousel, and Appellants Greene et al.
received no communication whatever until they were inside
the restaurant, both of which were well within the bound
aries of the property on which they allegedly trespassed.
This Court is under the normal constraint to construe the
statute narrowly, particularly since it is in derogation of
the common law.
Even if the Court were to construe the statute broadly in
the sense of meaning notice subsequent to entry, as to
Appellants Greene et al., the record does not show that Lt.
Collins was within the category of persons who are author
ized to give notice under the statute, and therefore the pur
ported notice was invalid. These Appellants were in a
restaurant which was leased by Glen Echo Amusement
Park (Kebar, Inc.) to B & B Catering Co., Inc. Appellants
contend that, as a matter of law, the agreement between
Kebar and B & B was contined in its entirety in the docu
ment dated August 29, 1958 (E. 75). It did not purport to
incorporate by reference or otherwise refer to any prior
agreement. It was complete on its face and set forth the
fact that it was “ the agreement” between the parties con
taining the “ terms” thereof. The prior lease (E. 66), by
its terms, expired in September, 1958, and, as a matter of
law, was not and could not have been extended by the agree
ment dated August 29, 1958. The testimony of the corpo
11
rate officers to the contrary (E. 55, 56, 57, 59) is insufficient,
appellants contend, to alter this conclusion. Further, the
fact that the two agreements have overlapping and in some
cases contradictory provisions demonstrates that the agree
ment of August 29, 1958, was not intended as an extension
of or supplement to the prior agreement. Unlike the prior
agreement, the agreement of August 29, 1958, created a
lease rather than a license, and contained no reservation
of control over the operation and conduct of the lessee’s
business beyond a restriction on employment of persons
under eighteen years of age. It follows, if B & B was a
lessee of the restaurant in which the arrests occurred, as
distinguished from a licensee, that the evidence is wholly
insufficient to support the contention that Lt. Collins was
acting as the agent of the lessee when Appellants Greene
et al. were “ notified” and subsequently arrested.
The third basis for setting aside Appellants conviction is
the proviso that the statute does not apply to persons who
are acting under a bona fide claim of right to be upon the
property of another.
All of Appellants were members of the general public,
invited to the park by the operators thereof. This invita
tion was extended to the public, without qualification as
to race or color, particularly to persons residing in the
Washington metropolitan area, by way of advertisements
in newspapers, signs on buses, and by radio and television.
Entry to the park was free and unobstructed and open to
all responding to such invitations. In view of these facts,
Appellants’ bona fide claim of right to enter and cross
over the property seems incontrovertible.
This claim of right is reinforced by the fact that all of
the Appellants were trying to make or to enforce con
tracts, or to purchase personal property, and thus their
activity is given the express sanction of law, 42 TT.S.C.A.
§4 1981, 1982, which give all persons, including Negroes,
12
the same right “ in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens, . .
and an equivalent right to purchase personal property. A
peaceable entry into a place of public business in order to
purchase food, tickets, or other items on sale, or to make use
of tickets duly purchased from the proprietor is certainly
a proper exercise of these federally protected rights and,
Appellants submit, gives rise to a bona fide claim of right,
within the meaning of the statute involved.
In addition, in the case of Appellants Griffin et al., each
of them had valid and duly purchased tickets for admit
tance to the rides in the park. These Appellants, at the
time of their arrest, were on one such ride and had ten
dered the necessary tickets. Therefore, they were acting
under a bona fide claim of right and were thereby excluded
from operation of the statute since a ticket to a place of
public amusement constitutes a contract between the pro
prietor and the holder. Interstate Amusement Co. v. Mar
tin, 8 Ala. App. 481, 62 So. 404 (1913).
II.
The A rrests and Convictions of A ppellan ts C o n stitu te An
E xercise of S ta te Pow er to Enforce R acial Segregation in
V iolation of R ights P ro tected by th e F o u rteen th A m end
m ent to the U nited S ta tes C onstitu tion and B y 42 U.S.C.
§§ 1981 and 1S82.
The arrests and convictions of Appellants implemented
the racially discriminatory policies of Glen Echo Amuse
ment Park, a place of public accommodation. Such arrests
and convictions constituted the use of the state police power
to enforce those policies. Appellants contend that their
federal rights thereby were violated. Although the federal
questions presented here have not been squarely decided
by the Supreme Court of the United States, the principles
on which they rely have been clearly enunciated.
13
These basic principles were first expressed in the Civil
Rights Cases, 109 U.S. 3 (1883), in which the Supreme
Court declared that the Fourteenth Amendment and the
rights and privileges secured thereby “nullifies and makes
void . . . State action of every kind which impairs the priv
ileges and immunities of citizens of the United States, or
which injures them in life, liberty or property without
due process of law, or which denies to any of them the
equal protection of the laws.” Supra at 11. Moreover,
the Court stated that racially discriminatory policies of
individuals are insulated from the proscription of the
Fourteenth Amendment only in so far as they are “ un
supported by State authority in the shape of laws, customs
or judicial or executive proceedings,” or are “ not sanc
tioned in some way by the State.” Supra at 17.
Consistent with these expressions, the doctrine has been
clearly established that state power cannot be used affirma
tively to deny access to or limit use of public recreational
facilities because of race. This doctrine has been applied
to such recreational facilities as swimming pools, Kansas
City, Mo. v. Williams, 205 F.2d 47 (8th Cir. 1953), cert,
denied 346 U.S. 826; Tonkins v. City of Greensboro, 276
F.2d 890 (4th Cir. I960); public beaches and bathhouses,
Dawson v. Mayor and City Council of Baltimore, 220 F.2d
386 (4th Cir. 1955), aff’d per curiam 350 U.S. 877; Depart
ment of Conservation v. Tate, 231 F.2d 615 (4th Cir. 1956),
cert, denied 3o2 U.S. 838; City of St. Petersburg v. Alsup,
238 F.2d 830 (5th Cir. 1956), cert, denied 352 U.S. 922; golf
courses, Rice v. Arnold, 45 So.2d 195, (Fla. 1950), vacated
340 U.S. 848; Holmes v. City of Atlanta, 223 F.2d 93 (5th
Cir. 1955) aff’d per curiam 350 U.S. 879; City of Greens
boro v. Simkins, 246 F.2d 425 (4th Cir. 1957); parks and
recreational facilities, New Orleans City Park Improve
ment Association v. Detiege, 252 F.2d 122 (5th Cir. 1958),
aff’d per curiam 358 U.S. 54; and theatres, Muir v.
Louisville Park Theatrical A ss’n., 202 F.2d 275 (6th Cir.
1953), off d per curiam, 347 U.S. 971; Jones v. Marva
Theatres, Inc., 180 F.Supp. 49 (D. Md. 1960).
14
Particularly pertinent to the instant case is the state
ment contained in the decision of the United States Court
of Appeals for the Fourth Circuit in the Dawson case,
supra at 387:
. . it is obvious that racial segregation in recrea
tional activities can no longer be sustained as a proper
exercise of the police power of the state . . . ”
The Court of Appeals in that case specifically overruled
Durkee v. Murphy, 181 Md. 259, 29 A.2d 253 (1942), which
had espoused the doctrine of separate-but-equal in public
recreational facilities. The Court, of course, based its
view on the fact that Plessy v. Ferguson, 163 U.S. 537
(1896), had in effect been overruled by the Supreme Court
in a series of cases beginning with McLaurin v. Oklahoma
State Regents, 339 U.S. 637 (1950), as applied to educa
tional facilities, and the Court stated that it was equally
inapplicable to any other public facility.
This rule has been followed without distinction between
recreational facilities which are operated by state authori
ties in a “governmental” or “ proprietary” capacity, City
of St. Petersburg v. Alsup, supra, and facilities which
have been leased by state authorities to private operators,
City of Greensboro v. Simkins, supra. The rule therefore
has been applied in an all-inclusive manner.
The distinction between the cases cited above and the
instant case is the fact that the facility here involved is
not operated by or leased from the state, and therefore the
owners or operators of the park are not themselves af
fected by the limitations of the Fourteenth Amendment.
It follows, as has been held by this Court in Drews v.
Maryland, — Md. — (1961), No. 113, September Term,
1960, that a private owner or operator of a place of
public amusement is free to choose his customers on such
bases as he sees fit, including race or color. It is equally
clear, however, that the state can no more lend its legisla
15
tive, executive or judicial power to enforce private policies
of racial discrimination in a place of public accommodation
than it can adopt or enforce such policies in a facility
operated by it directly. If one is an infringement of
Fourteenth Amendment rights and an improper exercise
of the state’s police power, so is the other. Cf. Terry v.
Adams, 345 U.S. 461 (1953).
The Supreme Court also has enunciated the principle
that the powers of the state, whether legislative, judicial,
or executive, cannot he used to enforce racially discrimina
tory policies of private persons relating to the purchase
and sale of real property. In Shelley v. Kraemer, 334 U.S.
1 (1948), the Court held that state courts could not carry
out the racially discriminatory policies of private land
owners through judicial enforcement of racial restrictive
covenants. Moreover, the Court was unwilling to permit
state courts to grant damages against private landowners
for breach of such covenants. Barrows v. Jackson, 346
U.S. 249 (1953). The Court, in holding that judicial en
forcement of racial discrimination violates the Fourteenth
Amendment, made it clear “ that the action of the States
to which the Amendment has reference, includes action of
state courts and state judicial officers.” Shelley v.
Kraemer, supra at 18. The assertion that property rights
of private individuals were paramount was met by the
Court in stating that:
The Constitution confers upon no individual the
right to demand action by the State which results in
the denial of equal protection of the laws to other
individuals. Supra at 22.
We are not here concerned, nor was the Court in Shelley
and Barrows, concerned with the questions whether or not
private citizens are required to sell to Negroes or of the
power of the state to force them so to sell. The question,
here, as in Shelly and Barrows, is whether or not the state,
consistent with the Constitution, can permit the full panoply
of its power to be used to aid, abet, implement, and effec
16
tuate discrimination by private entrepreneurs on account
of race or color. And, in the instant case, the use of state
power is more odious than in Shelly and Barrows because
criminal, rather than civil, sanctions have been imposed.
Furthermore, if individuals are attempting to exercise
federally protected rights, the fact that they are physically
present on private property which has been opened up to
the public is of no consequence and does not justify the
imposition by the state of criminal trespass sanctions.
In Marsh v. Alabama, 326 U.S. 501 (1946), privately
owned land was being used as a “ company town.” The
landowner caused the arrest (by a company employee who
was also a county deputy sheriff) for trespass of a member
of a religious sect who was distributing literature contrary
to the wishes of the owner. It was argued in support of
the arrest that the landowner’s right of control is coexten
sive with the right of the homeowner to regulate the con
duct of his guests. The Court stated:
“We cannot accept that contention. Ownership does
not always mean absolute dominion. The more an
owner, for his advantage, opens up his property for
use by the public in general, the more do his rights be
come circumscribed by the statutory and constitutional
rights of those who use it,” Supra at 505-6.
Obviously, the respective rights of the parties must be
recognized and balanced. It should be noted, however, that
even the homeowner does not have absolute and inviolable
rights, as pointed out by the Court in Martin v. Struthers,
319 U.S. 141 (1943) (ordinance prohibiting door-to-door
distribution of handbills held invalid as applied to ad
vertisement of religious meeting).
Glen Echo Amusement Park has been opened by the
owner as a place of public accommodation, for his finan
cial advantage, and, following Marsh, he has thereby sub
ordinated his rights as a private property owner to the con
stitutional rights of the public who use it.
17
Appellants also rely on 42 U.S.C. §1981, which pro
vides that “ all persons within the jurisdiction of the
United States shall have the same right in every State
and Territory to make and enforce contracts . . . as is en
joyed by white citizens, . . .” , and on 42 U.S.C. § 1982,
which provides that “all citizens . . . shall have the same
right . . . as is enjoyed by white citizens to . . . purchase
. . . personal property.” Appellants entered Glen Echo
Amusement Park for the purpose of making contracts
with the operators of the park to use the facilities located
there and to purchase food, tickets, and other articles of
personal property which were on sale to the public. Ap
pellants Griffin et al, being in lawful possession of valid
tickets, in fact had entered into contractual relations with
the operators of the park (see Greenfeld v. Maryland
Jockey Club of Baltimore, 190 Md. 96, 57 A.2d 335 (1948)),
and were, at the time of their arrest, seeking to enforce
those contracts. Without question, Appellants arrests con
stituted unlawful interference with the exercise of their
statutory rights under the Fourteenth Amendment to the
Constitution.
The arguments advanced hereinabove by Appellants were
urged on the court in Valle v. Stengel, 176 F.2d 697 (3rd
Cir. 1949), involving facts substantially similar to those in
the instant case. In Valle, the court held that the convic
tions of the defendants under the New Jersey trespass
statute were void on the grounds that they constituted state
enforcement of privately imposed racial discrimination in
a place of public amusement in violation of defendants’
rights under the Due Process and Equal Protection Clauses
of the Fourteenth Amendment, and that they constituted
an unconstitutional interference with defendants’ equal
rights to make and enforce contracts and to purchase per
sonal property as set forth in 42 U.S.C. §§ 1981, 1982.
Appellants rely on that case.
The Court might well inquire as to the means available
to the owner of a place of public accommodation to enforce
18
his right to pick and choose his customers and to remove
unwanted persons from his property. Appellants submit
that the owner may resort to his common-law right of
reasonable self-help to remove such persons. If the person
resists to the point of disorderly conduct, or if a breach
of the peace is imminent or ensues, then resort may be
had to state authority to redress or prevent such independ
ent violations of the law. To permit state authorities to
lend their aid by arresting unwanted persons solely on ac
count of race or color in a place of public accommodation,
and to enforce judicially such racially discriminatory poli
cies through criminal prosecution and conviction goes too
far.
Appellants are aware of the holding of this Court in
Drews v. State of Maryland, — Md. — (1961), No. 113,
September Term, 1960. That case is factually distinguish
able on at least two grounds. In the Drews case, which
involved convictions for disorderly conduct, this Court
relied heavily upon the fact as established by the record
that the crowd which gathered around the defendants at
the time of their arrest was angry and on the verge of
getting out of control, which led this Court to conclude
that defendants were “inciting” the crowd by refusing
to obey valid commands of police officers. In addition, it
was found by the trial court that the Drews defendants in
fact acted in a disorderly manner. In the instant case, the
record is entirely barren of evidence that any element of
incitement was present. Further, the record repeatedly
shows that Appellants at all times conducted themselves in
a peaceful and orderly manner. In this case, therefore,
disorder and imminent violence were not present, and it
cannot be said here, as it was said in Drews, that the ar
rests were made to prevent violence or the further com
mission of disorderly acts. Appellants submit that this
case cannot be decided simply by following Drews v. Mary
land, supra.
This Court is called upon to balance conflicting interests.
On the one hand, the private businessman, having invited
19
the general public to come upon his land, nevertheless
seeks to exclude particular members of that public on ac
count of race and color and asks the state to assist him in
so doing. On the other hand, members of the public, hav
ing been invited to use the services offered by the private
businessman, ask only that the state refrain from assist
ing him in effectuating his dicriminatory policies.
In striking this balance, Appellants urge this Court to
take judicial notice of the changes which have occurred in
the State of Maryland in recent years. Discrimination on
account of race is now contrary to the public policy of the
State in all areas of public activity. Bills have been intro
duced in the legislature to outlaw racial discrimination in
privately owned places of public accommodation. At least
one county has established a Human Relations Council to
deal with residual areas of racial friction. In Baltimore,
parts of Montgomery County, and elsewhere in the state,
privately owned hotels, restaurants, bowling alleys and
other places of public accommodation have been desegre
gated by the voluntary action of their owners.
All of these developments stem from the recognition that
racial discrimination is morally wrong, economically un
sound, inconvenient in practice and unnecessary in fact.
In deciding these cases justice can permit but one result.
CONCLUSION
It is respectfully submitted that the judgments below
should be reversed with directions to vacate the convic
tions and to dismiss the proceedings against Appellants.
Charles T. D uncan
J oseph H . S harlitt
Claude B. K ahn
Attorneys for Appellants
L ee M. H ydeman
Of Counsel
RECORD EXTRACT
E l
No. 3881 Criminal
S tate oe Maryland
Docket Entries
vs.
W illiam L. Gr iffin
TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury
Trial &c filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 5.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3882, 3883, 3889 and 3892 Criminal.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything to
say before sentence.
Sep. 12, 1960—Judgment that the Traverser, William L.
Griffin, pay a fine of Fifty and no/100 dollars ($50.00)
current money and costs, and in default in the payment
of said fine and costs, that the Traverser, William L.
Griffin be confined in the Montgomery County Jail until
the fine and costs have been paid or until released by due
process of law.
Sep. 12,1960—Appeal filed, Page No. 6.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed, Page No. 7.
L. T. Kardy—State’s Attorney
J . H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E2
No. 3882 Criminal
S tate of M aryland
Docket Entries
vs.
Michael A. P roctor
TRESPASSING
Ang. 4, 1960—Warrant, Recognizance, Demand for Jury
Trial &e. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 5.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3881, 3883, 3889 and 3892 Criminals.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 12,1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything
to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Michael A.
Proctor, pay a fine of Fifty and no/100 Dollars ($50.00)
and costs, and in default in the payment of said fine and
costs, that the Traverser, Michael A. Proctor, be con
fined in the Montgomery County Jail until the fine and
costs have been paid or until released by due process of
law.
Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—'Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3881 Criminal.
L. T. Kardy—State’s Attorney
J . H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E3
No. 3883 Criminal
S tate of Maryland
Docket Entries
vs.
Cecil T. W ashington, J r.
TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury
Trial &c. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3881, 3882, 3889 and 3892 Criminals.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything to
say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Cecil T.
Washington, Jr., pay a fine of Fifty and no/100 Dollars
($50.00) current money and costs and in default in the
payment of said fine and costs, that the Traverser Cecil
T. Washington, Jr., be confined in the Montgomery
County Jail until the fine and costs have been paid or
until released by due process of law.
Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3881 Criminal.
L. T. Kardy—State’s Attorney
J . H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E4
No. 3889 Criminal
S tate op Maryland
Docket Entries
vs.
Marvous S aunders
TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed,
Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3881, 3882, 3883 and 3892 Criminal.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds the defendant guilty.
Sep. 12, 1960—Defendant was asked if he had anything
to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Marvous
Saunders, pay a fine of Fifty and no/100 Dollars ($50.00)
current money and costs, and in default in the payment of
said fine and costs that the Traverser, Marvous Saunders,
be confined in the Montgomery County Jail until the fine
and costs have been paid or until released by due process
of law.
Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3881 Criminal.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E5
No. 3892 Criminal
S tate oe Maryland
Docket Entries
vs.
Gwendolyn T. Greene
TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed,
Page No. 1.
Sep. 12, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 6.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3881, 3882, 3883 and 3889 and 3892 Crim
inals.
Sep. 12,1960—Plea not guilty.
Sep. 12, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 12, 1960—The Court finds defendant guilty.
Sep. 12, 1960—Defendant was asked if she had anything
to say before sentence.
Sep. 12, 1960—Judgment that the Traverser, Gwendolyn
T. Greene, pay a fine of Fifty and no/100 dollars ($50.00)
current money and costs, and in default in the payment
of said fine and costs, that the Traverser, Gwendolyn T.
Greene, be confined in the Montgomery County Jail until
the fine and costs have been paid or until released by
due process of law.
Sep. 12,1960—Appeal filed in No. 3881 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3881 Criminal.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E6
No. 3878 Criminal
S tate oe Maryland
Docket Entries
vs.
Cornelia A. Greene
TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury
Trial &c. filed, Page No. 1.
Sep. 12, 1960—Motion and leave to consolidate this case
with numbers 3879, 3890, 3891 and 3893 Criminals.
Sep. 13, 1960—Motion and leave to amend warrant and
amendment filed, Page No. 6.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything
to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Cornelia A.
Greene, pay a fine of One hundred and no/100 dollars
($100.00) current money and costs, and in default in the
payment of said fine and costs that the Traverser, Cor
nelia A. Greene, be confined in the Montgomery County
Jail until the fine and costs have been paid or until
released by due process of law.
Sep. 13,1960—Appeal filed, Page No. 7.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including the 15th day of November, 1960, Page No. 8.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E7
No. 3879 Criminal
S tate of M aryland
Docket Entries
vs.
H elene D. W ilson
TRESPASSING
Aug. 4, 1960—Warrant, Recognizance, Demand for Jury
Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3878, 3890, 3891 and 3893 Criminals.
Sep. 13, 1960—Motion and leave to amend warrant and
amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything
to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Helene D.
Wilson, pay a fine of One Hundred and no/100 dollars
($100.00) current money, and costs, and in default in the
payment of said fine and costs that the Traverser, Helene
D. Wilson, be confined in the Montgomery County Jail
until the fine and costs have been paid or until released
by due process of law.
Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3878 Criminal.
L. T. Kardy—State’s Attorney
J . H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E8
No. 3890 Criminal
S tate of Maryland
Docket Entries
vs.
M artin A. S chain
TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3878, 3879, 3891 and 3893 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and
amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if he had anything
to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Martin A.
Schain, pay a fine of One hundred and no/100 dollars
($100.00) current money, and costs, and in default in the
payment of said fine and costs, that the Traverser, Mar
tin A. Schain, be confined in the Montgomery County
Jail until the fine and costs have been paid or until
released by due process of law.
Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to and including November 15,
1960 filed in No. 3878 Criminal.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E9
No. 3891 Criminal
S tate of Maryland
Docket Entries
vs.
R onyl J . S tewart
TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and Leave to consolidate this case
with Numbers 3878, 3879, 3890 and 3893 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and
amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds defendant guilty.
Sep. 13, 1960—Defendant was asked if he had anything to
say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Ronyl J.
Stewart, pay a fine of Fifty and no/100 dollars ($50.00)
current money, and costs, and in default in the payment
of said fine and costs, that the Traverser Ronyl J.
Stewart, be confined in the Montgomery County Jail,
until the fine and costs have been paid or until released
by due process of law.
Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3878 Criminal.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E10
No. 3893 Criminal
S tate of Maryland
Docket Entries
vs.
J anet A. L ewis
TRESPASSING
Aug. 4, 1960—Warrant, Demand for Jury Trial &c. filed.
Sep. 12, 1960—Motion and leave to consolidate this case
with Numbers 3878, 3879, 3890 and 3891 Criminal.
Sep. 13, 1960—Motion and leave to amend warrant and
amendment filed.
Sep. 13,1960—Plea not guilty.
Sep. 13, 1960—Submitted to the Court and trial before
Judge Pugh, Mrs. Slack reporting.
Sep. 13, 1960—The Court finds the defendant guilty.
Sep. 13, 1960—Defendant was asked if she had anything
to say before sentence.
Sep. 13, 1960—Judgment that the Traverser, Janet A.
Lewis, pay a fine of Fifty and no/100 dollars ($50.00)
current money, and costs, and in default in the payment
of said fine and costs, that the Traverser Janet A. Lewis,-
be confined in the Montgomery County Jail until the
fine and costs have been paid or until released by due
process of law.
Sep. 13,1960—Appeal filed in No. 3878 Criminal.
Oct. 13, 1960—Petition and Order of Court extending time
for transmittal of record to Court of Appeals to and
including November 15, 1960 filed in No. 3878 Criminal.
L. T. Kardy—State’s Attorney
J. H. Sharlitt & C. T. Duncan—Attorneys for Defendant
E ll
State Warrant
S tate of Maryland, M ontgomery County, to w it:
To James S. McAuliffe, Superintendent of Police of said
County, Greeting:
W hereas, Complaint hath been made upon the informa
tion and oath of Lt. Francis Collins, Deputy Sheriff in and
for the Glen Echo Park, who charges that William L.
Griffin, late of the said County and State, on the 30th day
of June, 1960, at the County and State aforesaid, did un
lawfully and wantonly enter upon and cross over the land
of Rekab, Inc., a Maryland corporation, in Montgomery
County, Mryland, such land at that time having been leased
to Kebar, Inc. a Maryland corporation, and operated as the
Glen Echo Amusement Park, after having been duly noti
fied by an Agent of Kebar, Inc., not to do so in violation of
Article 27, Section 577 of the Annotated Code of Maryland,
1957 Edition as amended, contrary to the form of the Act
of the General Assembly of Maryland, in such case made
and provided, and against the peace, government and dig
nity of the State.
You are hereby commanded immediately to apprehend
the said .............................—................ and bring ....h._.....
before ... ..... ........................................... ... Judge at _____
............. - ............ — Montgomery County, to be dealt with
according to law. Hereof fail not, and have you there
this Warrant.
Justice of the Peace for Montgomery
County, Maryland
Issued ...............................................19...... .
[Identical warrants were issued against Appellants
Michael A. Proctor, No. 3882 Criminals, Cecil T. Wash
ington, Jr., No. 3883 Criminals, Marvous Saunders, No.
3889 Criminals, and Gwendolyn T. Greene, No. 3892, Crim
inals.]
E12
State Warrant
S tate of Maryland, M ontgomery County, to w it:
To James S. McAuliffe, Superintendent of Police of said
County, Greeting:
W hereas, Complaint hath been made upon the informa
tion and oath of Lt. Francis Collins, Deputy Sheriff in and
for the Glen Echo Park, who charges that Cornelia A.
Greene, late of the said County and State, on the 2nd day
of July, 1960, at the County and State aforesaid, did un
lawfully and wantonly enter upon and cross over the land
of Eekab, Inc., a Maryland corporation, in Montgomery
County, Mryland, such land at that time having been leased
to Kebar, Inc. a Maryland corporation, and operated as the
Glen Echo Amusement Park, after having been duly noti
fied by an Agent of Kebar, Inc., not to do so in violation of
Article 27, Section 577 of the Annotated Code of Maryland,
1957 Edition as amended, contrary to the form of the Act
of the General Assembly of Maryland, in such case made
and provided, and against the peace, government and dig
nity of the State.
You are hereb)7- commanded immediately to apprehend
the said ...... ..................... —.............. . and bring ....h.......
before .............. .... ........................ ....... . Judge at _____
................... ..... ..... Montgomery County, to be dealt with
according to law. Hereof fail not, and have you there
this Warrant.
Justice of the Peace for Montgomery
County, Maryland
Issued .............................. - .......- .....19-----
[Identical warrants were issued against Appellants
Helene D. Wilson, No. 3879 Criminals, Martin A. Sehain,
No. 3890 Criminals, Ronyl J. Stewart, No. 3891 Criminals,
and Janet A. Lewis, No. 3893 Criminals.]
E13
2 Excerpts from Transcript of Proceedings (Griffin, et al.)
The above-entitled cause came on regularly for hearing,
pursuant to notice, on September 12, 1960, at 10:00 o’clock
a.m. before The Honorable James H. Pugh, Judge of said
Court, when and where the following counsel were present
on behalf of the respective parties, and the following pro
ceedings were had and the f ollowing testimony was adduced.
By Mr. McAuliffe: Your Honor, the State will move to
amend the warrants in all five oases, and I have prepared
copies of the amendment that we would ask that the Court
make to these warrants, and I would ask that in each case
the copy which I have prepared be attached to the original
warrant, as an amendment to it, and the amendment we
desire to make is the same amendment in each ease and
would read as follows:
By Judge Pugh: Have the defense lawyers seen it?
By Mr. Duncan: I would like to see it, your Honor. (Mr.
McAuliffe hands a copy of the proposed amendment to
defense attorneys). Defense counsel makes no objection to
the motion for leave to amend the warrants, your Honor.
By Judge Pugh: The motion is granted.
* * # # * * # # # #
3 By Judge Pugh: The pleas are “ not guilty?”
By Mr. Duncan: Yes, your Honor.
# * = & # # * # # # #
6 By Mr. Duncan: I would like, with the Court’s
leave, to reserve the opening statement on behalf of
the defendants, and I would like to move to dismiss and
quash the warrants. The prosecutor has stated that the ar
rests in this case were made by a State officer for the pur
pose of enforcing a policy of private segregation, put into
effect and maintained by the owner and lessee of the prem
ises involved. I submit to the Court that such use of State
power is unconstitutional. That the application of the
statute in this case is unconstitutional. The argument
being that the State may not discriminate against citizens
E14
on the ground of race and color. It may not do so directly,
and it cannot do so indirectly. I further move to dismiss
the warrants—
By Judge Pugh: The Court is not allowed to direct a
verdict on opening statements. If the Court sits without
a jury, it is sitting as a jury, and then the Court is the
Judge of the law and the facts, so, on opening statements
we do not recognize motions for a directed verdict. The
motion is over-ruled.
Whereupon,
Francis J. Collins
a witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified as follows, upon
7 Direct Examination
By Mr. McAuliffe:
Q. Lieutenant, will you identify yourself to the Court?
A. Francis J. Collins; 1207 E. Capitol Street, Washing
ton, D. C.
Q. Lieutenant, by whom are you employed, and in what
capacity? A. I am employed by the National Detective
Agency and we are under contract to Kebar, Inc., and
Rekab, Inc.,
# # # # * * * # * *
Q. By whom are you employed, Lieutenant Collins?
A. National Detective Agency.
Q. And where are you stationed, pursuant to your em
ployment with the National Detective Agency? A. My
present assignment is Glen Echo Amusement Park.
Q. And at Glen Echo Amusement Park from whom
8 do you receive your instructions? A. From the
Park Manager, Mr. Woronoff.
Q. And for how long have you been so assigned at the
Glen Echo Amusement Park? A. Since April 2nd, 1960.
E15
Q. What is your connection and capacity with respect
to the park special police force there? A. I am the head
of the special police force at the park.
Q. What instructions have you received from Mr.
Woronoff, the Park Manager, with respect to the operation
of the park and your duties in connection therewith?
# # # # # # # # # #
Q. Now then, Lieutenant, directing your attention to
the date June 30, 1960, did you have occasion to he at the
Glen Echo Park at that time? A. I was on duty on that
date.
Q. And the Glen Echo Amusement Park is located in
what County and State? A. Montgomery County, Mary
land.
Q. Directing your attention again to June 30,
9 1960, at a time when you were on duty at Glen
Echo Amusement Park, did you have occasion to see
the five defendants in this case on that date? A. I did.
Q. Will you relate to the Court the circumstances under
which you first observed these five defendants at the Glen
Echo Amusement Park?
10 Q. Now, Lieutenant, what first communication, or
contact, did you have with the five defendants here,
and what were they doing at that time?
By Mr. Duncan: I object, your Honor. That is the
same question, if I understand it correctly.
By Judge Pugh: The objection is over-ruled.
A. The defendants broke from the picket line and went
from the picket line—
By Judge Pugh: (interrupting the witness)
Just tell when they came on to the private property of
the Glen Echo Amusement Park.
A. Approximately 8 :15.
By Judge Pugh: All five of them?
11 A. Yes, sir.
E16
Q. What, if anything, occurred then?
By Judge Pugh: On the property of Glen Echo Amuse
ment Park.
A. The five defendants went down through the park to
the carousel and got on to the ride, on the horses and the
different animals. I then went up to Mr. Woronoff and
asked him what he wanted me to do. He said they were
trespassing and he wanted them arrested for trespassing,
if they didn’t get off the property.
Q. What did you tell them to do? A. I went to the
12 defendants, individually, and gave them five minutes
to get off the property.
By Mr. Duncan: I object and move to have that answer
stricken. I t is not relevant.
By Judge Pugh: The objection is over-ruled.
Q. Then, Lieutenant, will you relate the circumstances
under which you went to the carousel, and what you did
when you arrived there with respect to these five defend
ants? A. I went to each defendant and told them—
Q. (interrupting the witness) First of all, tell us what
you found when you arrived there. Where they were,
and what they were doing. A. Each defendant was either
on a horse, or one of the other animals. I went to each
defendant and told them it was private property and it
was the policy of the park not to have colored people on
the rides, or in the park.
Q. Now, will you look upon each of the five defendants
and can you now state and identify each of the five de
fendants' seated here as being the five that you have just
referred to? A. These are the five defendants that I just
referred to.
By Mr. Duncan: I would object to that and ask that he
be required to identify each defendant individually. These
are five separate warrants.
By Judge Pugh: Can you identify each one of these
defendants individually?
A. Yes.13
E17
By Judge Pugh:
Q. Did you tell them to get off the property! A. Yes.
Q. What did each one of them say when you told them
that! A. They declined to leave.
Q. What did they say! A. They said they declined to
leave the property. They said they declined to leave and
that they had tickets.
* # # # * = * * # # *
18 Q. During the five minute period that you testi
fied to after you warned each of the five defendants
to leave the park premises, what, if anything, did you do!
A. I went to each defendant and told them that the time
was up and they were under arrest for trespassing. I
then escorted them up to our office, with a crowd milling
around there, to wait for transportation from the Mont
gomery County Police, to take them to Bethesda to swear
out the warrants.
By Mr. Duncan: At this point I renew my Motion to
quash the warrants.
By Judge Pugh: The motion is denied.
By Mr. Duncan: May I state what the grounds are,
your Honor!
By Judge Pugh: You can state that at the end of the
case.
By Mr. Duncan: I am required to state this at the
beginning.
By Judge Pugh: You have stated your Motion and the
Court has ruled on it. You may argue it to the Court of
Appeals.
20 Mr. McAuliffe Resumes Examination of the Witness:
Q. Lieutenant, how were you dressed at the time you
approached the defendants and when you warned them!
A. I was in uniform.
Q. What uniform was that! A. Of the National Detec
E18
tive Agency; blue pants, white shirt, black tie and white
coat and wearing a Special Deputy Sheriff’s badge.
Q. What is your position, or capacity, with re-
21 spect to being a Deputy Sheriff? Are you, in fact,
a Deputy Sheriff of Montgomery County? A. I am
a Special Deputy Sheriff of Montgomery County, State
of Maryland.
Q. And specifically by what two organizations are you
employed? A. Rekab, Inc., and Kebar, Inc.
By Mr. McAuliffe: You may cross-examine.
By Mr. Duncan: Is it my understanding that this
witness’s duties have been admitted, subject to proof?
By Judge Pugh: Subject to agency. Agency has not
been established yet. I sustained the objection on that
proffer.
Cross-Examination
By Mr. Duncan:
Q. You just said you are employed by Rekab, Inc., and
Kebar, Inc., is that correct? A. I am employed by the
National Detective Agency and they have a contract with
Kebar, Inc., and Rekab, Inc.
Q. Who pays your salary? A. The National Detective
Agency.
Q. And do you have any other income from any other
source. A. No, sir.
Q. Do you receive any money directly from Rekab,
22 Inc., or Kebar, Inc.? A. No, sir.
Q. Your salary, in fact, is paid by the National
Detective Agency; is that correct? A. Yes.
Q. What kind of agency is that? A. A private detective
agency.
Q. Is it incorporated? A. Yes, sir.
Q. In what State? A. The District of Columbia.
Q. Are you an officer of that corporation? A. No, sir.
Q. Are you an officer of either Rekab, Inc., or Kebar,
Inc.? A. No, sir.
E19
Q. Mr. Collins, yon testified that you saw these defend
ants prior to the time they entered the park; is that
correct? A. Yes, sir.
Q. Had you ever seen them before? A. No, sir.
Q. When you saw them inside the park, did you recog
nize them as the persons you had seen outside the park?
A. Yes, sir.
Q. Now you stated that you told them it was the policy
of the park not to admit colored people. Is that, in fact,
the policy of the park? A. Yes.
23 Q. Has1 it always been the policy of the park?
A. As far as I know.
Q. How long had you worked at Glen Echo Park?
A. Since April 2, 1960.
Q. And before that time were you employed by the
National Detective Agency? A. That is right.
Q. But you were assigned to a place other than Glen
Echo? A. That is right.
Q. To your knowledge, had negroes previously ever been
admitted to the park? A. Not to my knowledge.
Q. Now did you arrest these defendants because they
were negroes?
By Mr. McAuliffe: Objection.
By Judge Pugh: Over-ruled.
A. I arrested them on orders of Mr. Woronoff, due to
the fact that the policy of the park was that they catered
just to white people; not to colored people.
Q. I repeat my question. Did you arrest these de
fendants because they were negroes? A. Yes, sir.
Q. Were they in the company of other persons, to your
knowledge? A. Yes, sir.
24 Q. Were they in the company of white persons?
A. Where?
Q. When they were on the carousel. A. There were
white persons on the carousel when they were there.
Q. To your knowledge, were they in the company of
white persons? A. One white person was with one of the
colored people.
E20
Q. With which colored person was the white person
with? A. This gentlemen right here (indicating one of
the defendants).
Q. Do yon know his name? A. No, I don’t know.
Q. Did yon arrest the white person who was in his
company? A. No, sir; I did not.
Q. Why not? A. At the time we got back to the carousel,
she had left. By the time I had these defendants out, she
had gone, as far as I know.
Q. Does this policy of Glen Echo Park extend to all
negroes, no matter who they are?
By Mr. MeAuliffe: Objection.
By Mr. Duncan: I will rephrase it.
25 Q. Does it extend to negroes, without regard to
how they are dressed, or how they conduct them
selves ?
Mr. MeAuliffe: Objection.
By Judge Pugh: Over-ruled.
By Mr. Duncan: Will the Reporter read the question,
please? (the last question was read back).
A. Yes; that is right.
Q. Did it come to your attention, Mr. Collins, that these
defendants had tickets when they were arrested? A. They
showed me tickets.
Q. Did you make any offer to these defendants with re
spect to the tickets which they had? Did you offer to
refund them any money? A. No, sir.
Q. Are you familiar with the manner in which tickets
are acquired and sold at Glen Echo Amusement Park?
A. Yes, sir.
Q. Will you tell the Court how that is? A. They are
sold through ticket booths.
Q. Are the ticket booths' located inside the park, or are
they located at the entrance? A. Inside the park.
Q. Is there any ticket booth at the entrance to the park?
A. No.
26 Q. So the access to the park from the public
highway is not obstructed? A. No, sir.
E21
Q. Now, if yon know, is it customary at the park for one
person to purchase tickets and transfer them to another?
A. I would not know.
Q. Are you ever at the park, Mr. Collins? A. Yes.
Q. Have you ever observed tickets being purchased?
A. Yes. I have.
Q. Have you ever seen a father purchase tickets and
give them to his children? A. Yes.
Q. Then you do know that that is done; is that correct?
A. In that case; yes.
Q. Do you know of any other cases in which it is done?
A. No.
36 Q. Would you say, Mr. Collins, that his conduct
was peaceful and orderly? A. At the time I spoke to him.
Q. He didn’t become disorderly at any time, in fact did
he A. No, sir.
37 Q. There was no loud talking? A. Not that I
know of.
Q. And certainly no one was drunk or intoxicated, or
anything like that? A. I wouldn’t know.
Q. You arrested them, didn’t you? A. You said no one.
Q. No one of these defendants were intoxicated, were
they? A. As far as I know; no.
Q. You had occasion to talk to each one of them, didn’t
you? A. Yes.
Q. Can’t you say whether any of them had been drink
ing or not? A. No.
Q. Have you had occasion to arrest people for being
intoxicated in Glen Echo? A. Yes.
Q. You are a police officer, aren’t you? A. Yes.
Q. Don’t you claim some expert knowledge of such
matters? A. Yes; by their actions.
Q. Based on the actions of these people can’t you say
that -they were not, in fact, intoxicated? A. As far as
I know they were not intoxicated.
* * * * * * * * * *
E22
38 By Judge Pugh: He said they were not intoxi
cated and did not appear to he. The objection is
sustained. Did you smell any ordor of alcohol on any of
them?
A. No, sir.
Mr. Duncan Continues Examination:
Q. You testified that the defendant, Griffiin, was peace
ful and orderly. Was the same true as to all the other
defendants? A. Yes.
Q. At all times throughout? A. Yes, sir.
Q. At the time you arrested them, Mr. Collins, did any
of them ask to speak to the management? A. No, sir.
Q. Did any of them tell you that they wanted to ride on
the merry-go-round? A. Yes, sir.
* * * * * * * * * *
67 Abram Baker
a witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified, upon
Direct Examination
By Mr. McAuliffe:
Q. Mr. Baker, will you state to the Court your name
68 and address? A. Abram Baker, 3315 Wisconsin
Avenue, N. W.
Q. What is your position or capacity in connection with
the Maryland Corporation Rekab, Inc.? A. I am President.
Q. What is your position with the Maryland Corporation
Kebar, Inc.? A. I am President.
Q. For how long have you been President of Rekab,
Inc.? A. Since June 17, 1955.
Q. How long have you been President of Kebar, Inc.?
A. Since June 17, 1955.
Q. What is the relationship of Rekab, Inc., and Kebar,
Inc., to the ownership and operation of the Glen Echo
Amusement Park, here in Montgomery County, Maryland?
E23
A. Rekab, Inc., owns Kebar, Inc., Kebar, Inc., is the
operating company.
Q. Which is the ownership of the land of Glen Echo
Amusement Park? A. Rekab, Inc.
* * * * # * # # * #
72 Q. As President of Rekab, Inc., and Kebar, Inc.,
I ask you whether the two respective corporations
are still in effect, and Maryland corporations! A. They
are.
Q. Mr. Baker, I show you this lease and ask you if you
can identify it? A. Yes, sir.
Q. And what is that instrument? A. This is a lease
on the ground from Rekab, Inc., turning it over to Kebar,
Inc., as an operating company.
Q. Did you sign this lease? A. I sure did.
By Mr. McAuliffe: We offer this lease into evidence as
State’s Exhibit #7.
73 Mr. Duncan: No objection.
Judge Pugh: Admit it in evidence.
Q. Is the carousel site a part of this lease? A. Yes; it
is leased to Kebar, Inc.
Mr. McAuliffe Continues:
Q. Directing your attention to this lease, State’s Ex
hibit #7, Mr. Baker, I ask you whether that lease was in
effect on the date of June 30th of this year? A. Yes, sir;
it was.
Q. Now, as President of Rekab, Inc., and Kebar, Inc.,
will you describe what policy is maintained by the' two
respective corporations' with respect to the admission of
negroes to the Glen Echo Amusement Park? A. I don’t
get your question.
Q. What policy is maintained by Rekab, Inc., and Kebar,
Inc., with respect to the admission of negroes to the
amusement park? A. They are not allowed in the park.
Q. And what instructions and what authority has been
given by Rekab, Inc., and Kebar, Inc., by you as President
E24
of each of these corporations, to Lieutenant Collins with
respect to this park policy! A. To give them all dne
respect and if they do not do what he asks them to do
within a time that he thinks it should have been done,
that he should arrest them.
74 Mr. McAuliffe Continues:
Q. Now then, Mr. Baker, what agency does the
park employ, specifically what agency does Rekab, Inc.,
and Kebar, Inc., employ for purposes of maintaining law
and order on the park property? A. This year it was the
National Detective Agency.
Q. And who, in the National Detective Agency, was
designated as the director or the man in charge of the
police force on the park grounds? A. Lieutenant Collins.
Q. And as such did you have occasion to give Lieutenant
Collins any instructions with respect to a park
75 policy against admitting negroes? A. Yes.
Q. And what specific instructions' did you give
him with respect to authority to order people off of the
park premises? A. Well, he was supposed to stop them
at the gate and tell them that they are not allowed; and if
they come in, within a certain time, five or ten minutes—
whatever he thinks, why he would escort them out.
Q. In the event they didn’t see fit to leave at his warn
ing, did you authorize Lieutenant Collins to have these
people arrested? A. Yes.
Q. On a charge of trespass? A. On a charge of
trespassing.
* * * * * * * * * *
76 Cross-Examination
By Mr. Duncan:
* * * * * * * * * *
84 Q. Would you tell the Court what you told
Lieutenant Collins relating to the racial policies of
E25
the Glen Echo Park? A. We didn’t allow negroes and in
his discretion, if anything happened, in any way, he was
supposed to arrest them, if they went on our property.
Q. Did you specify to him what he was supposed to
arrest them for? A. For trespassing.
Q. You used that word to him? A. Yes; that is right.
Q. And you used the word “ discretion”—what did you
mean by that? A. To give them a chance to walk off; if
they wanted to.
Q. Did you instruct Lieutenant Collins to arrest all
negroes who came on the property, if they did not leave?
A. Yes.
Q. That was your instructions? A. Yes.
Q. And did you instruct him to arrest them be-
85 cause they were negroes? A. Yes.
Q. Did you instruct him to arrest white persons
who came on the park property with colored persons?
A. If they were doing something wrong, they are supposed
to he arrested.
Q. In other words, your instruction as to negroes was to
arrest them if they came into the park, and refused to
leave, because they were negroes; and your instruction
was to arrest white persons if they were doing something
wrong? A. That is right.
92 Mr. Duncan Continues Cross-Examination of the
Witness:
Q. Does Glen Echo, operating through its advertising
agency, advertise in the Washington, D. C. area? A. I
would say so.
93 Q. Does it advertise in the Press? A. What do
you mean “ The Press?”
Q. By newspapers? A. Yes.
Q. By radio? A. Yes.
Q. And by television? A. Yes.
Q. On the back of Capital Transit Busses? A. No.
Q. It does not? A. No, sir.
E26
Q. Do any of the advertisements which the park makes
refer to racial policies of the park'? A. I don’t get that.
Q. Do any of the advertisements which you have referred
to, refer to the racial policies of the park? A. I don’t
think so.
Q. Do any of them state that negroes are not welcome?
A. They didn’t say they were.
Q. Are they addressed to the public generally A. I
would say so.
100 Re-Re-Direct Examination
By Mr. McAuliffe:
Q. Who are the other officers of this corporation? A.
My brother.
Q. What is his position? A. Secretary and Treasurer.
Q. What is his name? A. Sam Baker.
Q. Who is the other officer of the corporation? A. My
wife.
Q. And have you and your brother, and your wife, con
ferred, and are you in agreement with respect to the policy
to be followed at Glen Echo Park? A. We sure are.
101 Q. And who is your General Manager at the Glen
Echo Park? A. Leonard Woronoff.
Q. And is he instructed to carry out all the policies by
you and your brother and your wife, with respect to the
operation of the park, as you see fit? A. He is.
Q. You take the position, Mr. Baker, that as the owner
of this private property, or as President of the corpora
tion, you have the right to determine who shall come on
to your property, and the right to arrest them if they do
not leave A. Yes.
Mr. McAuliffe: I object to that.
By Judge Pugh: Objection sustained.
* * # * * * * # # #
105 By Mr. McAuliffe: If the Court please, the State
rests.
E27
By Mr. Duncan: May it please the Court, at this time
I would like to move to quash the warrants of arrest, or
to move for their dismissal, on a number of grounds which
I would like to urge on the Court, and the first ground
is constitutional grounds, namely, that the application of
the Maryland trespass statute, Section 577, under the cir
cumstances of this case, is unconstitutional and constitutes
a denial of due process of law. Marsh v. Alabama, 326
U. S. 501. The State of Maryland may not assist the
owners of the park here in carrying out a pattern of
private racial discrimination.
The Supreme Court held in 1947 that although the
covenants were valid as private agreements, the State
could not enforce them, so we say here the discrimination
which may exist at Glen Echo Park is a private matter
between the park and the would be negro patrons, but
that Glen Echo cannot call upon the State of Maryland
to enforce and carry out that policy.
106 In this case I think it is quite clear that the
action of the state is resorted to for the purpose of
enforcing racial discrimination. They were excluded from
the park, not because they were trespassers, but because
they were negroes. We contend that these defendants are
entitled to the equal protection of the law.
By Judge Pugh: Are the proxjerty owners entitled to
the equal protection of the law?
Mr. Duncan: Most assuredly. We contend further that
the application of the statute in this way deprives the de
fendants of due process of law, because it results in their
arrest. We advance a second constitutional argument,
your Honor, and that is the interference by the State
officers in this case deprives these defendants of statutory
rights which are secured to them by the laws of the
United States. I refer specifically to Sections 1981, 1982
and 1983 of Title 42 of the United States Code. As your
Honor is aware, Section 1981 provides that every person
within the jurisdiction of the United States shall have
E28
the same right, among other things, to make and enforce
contracts, as is enjoyed by white persons, to purchase,
acquire, hold and sell real property. It is declared to be a
right which everyone shall enjoy. In Section 1983 it is
made actionable for any person, acting under color of
law, to deprive anyone in the exercise of his Section 1981
right. We submit that the action of Lieutenant Collins in
this case, in his capacity as a State police officer,
107 interfered with the equal enjoyment of the right
which these defendants had to attempt to enter into
or make contracts with Glen Echo Amusement Park.
Williams v. Kansas City, 104 Fed. (2nd). So on these two
constitutional grounds we move that the warrants of ar
rest be quashed and dismissed on the ground that the
statute as applied to these facts is unconstitutional.
And then we make the same motion on a number of
State grounds. First, the Maryland statute, Section 577,
begins as follows: “ Any person or persons who shall
enter upon or cross over the premises of private property,
after having been duly notified by the owner, or his agent,
not to do so, shall be deemed guilty of a misdemeanor.”
This section has only been considered one time by the
Court of Appeals of Maryland. Krauss v. State, 216 Md.
369. That was a case involving the entry into a garage,
by employees of a finance company who were undertak
ing to repossess an automobile which was in the garage.
The owner of the garage land had a lien on the automobile
and had had discussions with the defendants prior to their
entry, when he notified the defendants that he had a lien
on the automobile. Notwithstanding this the defendants
entered the land and removed the automobile. Upon
conviction, and appeal to the Court of Appeals, that con
viction wTas reversed on the ground that there was in
sufficiency of notice beforehand. Here we submit, and I
think the testimony is uneontradicted on this point—Mr.
Collins, himself, testified that his first communication was
after they had come on to the land, and I submit to the
E29
Court that the statute cannot be violated. We base
108 our motion to dismiss on the ground that the
statute, by its very terms applies only to wanton
trespass. Beading again from the statute: “ It being the
intention of this section only to prohibit any wanton tres
pass upon the private property of others.” We have
been unable to find a case which defines the phrase “ wanton
trespass.” The Court of Appeals of Maryland, however,
has construed the meaning of the word “ wanton” in other
circumstances, and I cite on that Dennis v. Baltimore
Transit Co., 189 Md. 610, 617, and there, in discussing the
meaning of the word “ wanton” the Court of Appeals said
“ the word ‘wanton’ means characterized by extreme reck
lessness and utter disregard for the rights of others” and
I submit that if this Court were to take that as a test of
wanton trespass, then the evidence would have to show
that these defendants entered Glen Echo Park with ex
treme recklessness and complete disregard of the rights of
others.
Glen Echo advertised to the public generally. Its ad
vertisements' were not restricted as to race and any
member of the public was entitled to respond to this
advertisement and even if it should eventuate that negroes
were excluded wantonness under the statute is further
negated by the fact that all of these defendants had
tickets, and so far it doesn’t appear where they obtained
the tickets, but there is testimony that the tickets were
transferrable. They had tickets on the merry-go-round,
and Mr. Collins testified that he saw the ticket in Mr.
Griffin’s hand. I submit that a person who enters an
amusement park and comes into possession of a ticket,
whether purchased by him or given to him by someone
else, cannot be said to be guilty of wanton trespass.
109 The third ground we base our motion on is that
the statute, section 577, provides that—if I may read
that section—“ and further provided that nothing in this
section shall be construed to include in its provisions the
entry upon or crossing over any land when such entry or
E30
crossing is done under a bona fide claim of right or owner
ship of said land.” Now, we submit that these defendants
were on the land in the exercise of several bona fide rights.
They were publicly invited on the land. Secondly, upon
coming on the land they came into lawful possession of
tickets, which, in the ordinary practice of the park, were
clearly transferable. And it can be urged on their behalf
that they have a constitutionally protected right to be
on the land. If the federal statute gives to them the same
right to make contracts: as white persons, at least they were
on the land in the exercise of this federal statutory right
and they cannot be said to be engaged in a wanton tres
pass or that this was not a bona fide claim of right.
For all of these resons we urge that the warrants in
these cases as against all five defendants should be dis
missed and I move for a finding of not guilty, based on
the insufficiency of the evidence.
By Judge Pugh: The motion for a directed verdict is
denied.
110 Kay Freeman
a witness of lawful age, called for examination by counsel
for the defendants, and having first been duly sworn, ac
cording to law, was examined and testified as follows, upon
Direct Examination
By Mr. Duncan:
Q. For the record, state your name and address. A. Kay
Freeman; 732 Quebec Place, N. W.
Q. Miss Freeman, are you acquainted with the five de
fendants in this case? A. Yes.
Q. Do you know them each by name? A. Yes.
Q. How long have you known them? A. I know some
of them for different lengths of time. I guess' the longest
would be two years.
Q. Did you have occasion to be present at Glen Echo
Amusement Park on the night of June 30th, 1960? A. Yes.
E31
Q. Were you in the company of these defendants, and
other persons'? A. Yes.
Q. Did yon enter the park? A. Yes, I did.
Q. Did yon enter it in company with these defendants?
A. Yes.
Q. Were yon on the merry-go-round at the time
111 they were arrested? A. Yes.
Q. Did you see them arrested? A. Yes.
Q. Were you arrested? A. No.
Q. Did you see each of these defendants arrested? A.
Yes.
Q. Prior to the time they were arrested, did they have
tickets to ride on any of the rides? A. We all had tickets.
Q. Where did you acquire these tickets? A. They were
given to us by friends.
Q. White friends? A. Yes.
Q. And they had made the purchase? A. That is right.
Q. Prior to the time that you entered the premises of
the Glen Echo Amusement Park, did anyone tell you
personally that you should not enter? A. No one did.
Q. I mean anyone representing the park. A. No one.
Q. Did Mr. Woronoff say anything to you? A. No.
Q. Did Mr. Collins say anything to you? A. No.
Q. Were there any signs posted anywhere around there?
A. I didn’t see them.
112 Q. The conduct of these defendants at all times
was proper, wasn’t it?
By Mr. McAuliffe: Objection.
By Mr. Ducan: I will rephrase it.
Q. What was the conduct of these defendants, during
the time they were in the park? A. Their conduct was
orderly.
Q. Have you ever seen any advertisements relating to
Glen Echo Amusement Park? A. Yes every day, on tele
vision, on street oars and on radio.
Q. You say you went to Glen Echo in a group, with these
defendants? A. That is right.
By Mr. Duncan: I have no further questions.
# # * # # # # # # #
E32
113 Cross-Examination
By Mr. McAuliffe:
Q. Miss Freeman, this advertisement that you read, is
that what brought you out to Glen Echo Park on June
30th? A. I wanted to use the facilities and I thought this
would be a good way of doing it.
Q. You thought you would be able to use the facilities
of Glen Echo Park? A. I thought I might.
119 Q. Now, you were on the carousel, or the merry-
go-round, were you not? A. Yes.
Q. Were you riding with these five defendants? A. I
was near them.
Q. Well; how near? A. Perhaps two or three rides away.
Q. And when you saw these five defendants being ar
rested, and taken away, did you remain on the carousel?
A. Yes; I did.
Q. For how long did you remain there? A. I remained
for about thirty minutes.
Q. A half an hour? A. That is right.
120 Did the carousel start up during that time? A. No.
Q. So your best recollection is that it was approximately
half an hour that you sat on the carousel, and the carousel
did not start up? A. No, it did not.
Q. Did it start up after you left? A. I don’t know.
# # * # # * # * # #
128 By Mr. Duncan: We have no further evidence to
offer your Honor, and I would like to renew my
motions.
# # # # ' # # # * # #
129 By Mr. Duncan: I renew my motion for a directed
verdict, and to quash the warrants.
By Judge Pugh: The motion is over-ruled.
E33
130 Judge Pugh's Oral Opinion (Griffin, et al.)
It is very unfortunate that a case of this nature comes
before the criminal court of our State and County. The
nature of the case, basically, is very simple. The charge
is simple trespass. Simple trespass is defined under Sec
tion 577 of Article 27 of the Annotated Laws of Maryland,
which states that “ any person or persons who shall enter
upon or cross over the land, premises, or private property
of any person or persons in this State, after having been
duly notified by the owner or his agent not to do so shall
be deemed guilty of a misdemeanor.” Trespass has been
defined as an unlawful act, committed without violence,
actual or implied, causing injury to the person, property
or relative rights of another. This statute also has a
provision in it which says that it is the intention of the
Legislature as follows: “ It is the intention of this sec
tion only to prohibit any wanton trespass upon the private
land of others.” Wanton has been defined in our
131 legal dictionaries as reckless, heedless, malicious;
characterized by extreme recklessness, foolhardiness
and reckless disregard for the rights or safety of others,
or of other consequences.
There have been many trespass cases in Maryland. As a
matter of fact, there is one case now pending before the
Court of Appeals of Maryland where the racial question has
been injected into a disorderly conduct ease, and that, is
the case of “ State of Maryland versus Dale H. Drews”,
decided some few months ago. In that case, Judge
Menchine filed a lengthy written opinion, in which he
touched upon the rights of a negro to go on private
property, whether it is a semi-public or actually a public
business, and in that case Judge Menchine said as follows:
“ The rights of an owner of property arbitrarily to re
strict its use to invitees of his selection is the established
law of Maryland.” This Court agrees with that opinion,
and unless that case is reversed by the Court of Appeals
E34
of Maryland, at its session this Fall, that will continue to
be the law of Maryland.
That statement by Judge Menchine is based upon author
ities of this State, and not too far back, in the case of
Greenfeld versus the Maryland Jockey Club, 190 Md. 96,
in which the Court of Appeals of this State said: “ The
rule that, except in cases of common carriers, inn-keepers
and similar public callings, one may choose his customers,
is not archaic.”
If the Court of Appeals changes its opinion in the
132 190 Maryland case, then we will have new law in
this State on the question of the right of a negro to
go on private property after he is told not to do so, or
after being on it, he is told to get off.
In this Country, as well as many, many counties in the
United States, we have accepted the decision of integration
that has been promulgated by the Supreme Court in the
school cases, and without and provocation or disputes of any
consequence. There is no reason for this Court to change
that method of accepting integration, but when you are con
fronted with a question of whether or not that policy
can be extended to private property, we are reaching into
the fundamental principles of the foundation of this coun
try.
The Constitution of the United States has many provi
sions, and one of its most important provisions is that of
due process of law. Due process of law applies to the right
of ownership of property—that you cannot take that prop
erty, or you cannot do anything to interfere with that man’s
use of his property, without due process of law.
Now, clearly, in this case, which is really a simple case;
it is a simple case of a group of negroes, forty in all,
getting together in the City of Washington, and coming
into Maryland, with the express intent, by the testimony of
one of the defense witnesses, that they were going to make
a private corporation change its policy of segregation. In
other words, they were going to take the law in their own
E35
hands. Why they didn’t file a civil suit and test out
133 the right of the Glen Echo Park Amusement Com
pany to follow that policy is very difficult for this
Court to understand, yet they chose to expose themselves
to possible harm; to possible riots and to a breach of
the peace. To be exposed to the possibility of a
riot in a place of business, merely because these de
fendants want to impress upon that business their
right to use it, regardless of the policy of the corporation,
should not be tolerated by the Courts. Unless the law of
this State is changed, by the Court of Appeals of Maryland,
this Court will follow the law that has already been adopted
by it, that a man’s property is his castle, whether it be
offered to the public generally, or only to those he desires
to serve.
There have been times in the past, not too many years
back, when an incident of this kind would have caused a
great deal of trouble. It could have caused race riots, and
could have caused bloodshed, but now the Supreme Court,
in the school case in 1954, has decided that public schools
must be integrated, and the people of this County have ac
cepted that decision. They have not quibbled about i t ; They
have gone along with it without incident. We are one of
the leading counties in the United States in accepting that
decision. If the Court of Appeals of Maryland decides
that a negro has the same right to use private property as
was decided in the school cases, as to State or Government
property, or if the Supreme Court of the United States so
decides, you will find that the places of business in
134 this County will accept that decision, in the same
manner, and in the same way that public authorities
and the people of the County did in the School Board
decision, but there is nothing before this Court at this
time except a simple case of criminal trespass. The
evidence shows the defendants have trespassed upon
this Corporation’s property, not by being told not to
come on it, but after being on the property they were
told to get off.
E36
Now it would be a ridiculous thing for this Court to
say that when an individual comes on private property, and
after being on it, either sitting on it or standing on it, and
the owner comes up and says, “ Get off my property”, and
then the party says “ You didn’t tell me to get off the prop
erty before I came on it, and, therefore, you cannot tell
me to get off now” he is not guilty of trespass because he
was not told to stay off of the property. It is a wanton
trespass when he refuses to get off the property, after being
told to get off.
One of the definitions of wanton is “ foolhardy” and this
surely was a foolhardy expedition; there is no question
about that. When forty people get together and come
out there, as they did, serious trouble could start. It is a
simple case of trespass. It is not a breach of the
135 peace, or a case of rioting, but it could very easily
have been, and we can thank the Lord that nothing
did take place of such a serious nature.
It is not up to the Court to tell the Glen Echo Amuse
ment Company what policies they should follow. If they
violate the law, and are found guilty, this Court will sen
tence them.
It is most unfortunate that this matter comes before the
Court in a criminal proceeding. It should have been
brought in an orderly fashion, like the School Board case
was brought, to find out whether or not, civilly, the Glen
Echo Park Amusement Company could follow a policy of
segregation, and then you will get a decision based on the
rights of the property owner, as well as the rights of these
defendants. So, the Court is very sorry that this case has
been brought here in our courts.
It is my opinion that the law of trespass has been vio
lated, and the Court finds all five defendants guilty as
charged.
E37
Excerpts from Transcript of Proceedings (Greene, et al.)
2 The above-entitled cases, having been consolidated
for purposes of trial, by stipulation of counsel, came
on for hearing, pursuant to notice, on September 13, 1960,
at 9:30 o’clock a.m. before The Honorable James H. Pugh,
Judge of said Court, when and where the following counsel
■were present on behalf of the respective parties, and the
following proceedings were had, and the following testi
mony was adduced.
By Mr. McAuliffe: Your Honor, we will call No.
3878, Cornelia A. Greene; No. 3879, Helene D. Wilson;
No. 3890, Martin A. Schain; No. 3891, Ronvl J. Stewart and
No. 3893, Janet A. Lewis, and the State in each of these
cases will move to amend the respective warrants, and I
have prepared copies of the proposed amendments for the
Court and for counsel.
By Judge Pugh: Any objection, Mr. Sharlitt?
By Mr. Sharlitt: No objection.
By Judge Pugh: The motion for leave to amend is
granted. Pile an amended warrant in each case. What
is the plea, Mr. Sharlitt?
By Mr. Sharlitt: Not guilty as to each defendant.
3 By Judge Pugh: Bo you submit it to the Court?
Mr. Sharlitt: In each case, sir.
By Mr. McAuliffe: The State waives opening statement
By Mr. Sharlitt : I will waive it until the close of the
State’s case.
Whereupon,
# # * * * * # # # *
11 Francis J. Collins
A witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified as follows, upon
Direct Examination
By Mr. McAuliffe:
Q. Give us your name and your address. A. Francis
J. Collins, 1207 E. Capitol Street, Washington, D. C.
E38
Q. Where are you employed and in what capacity? A.
I am employed at the National Detective Agency, and as
signed to Glen Echo Amusement Park.
Q. Directing your attention to the date of July 2nd of
this year, 1960, were you so assigned to the Glen Echo
Amusement Park? A. Yes, sir.
Q. At the time you were assigned to the Glen Echo
12 Amusement Park on July 2,1960, from whom did you
receive your instructions with respect to your duties
and responsibilities? A. The park Manager.
Q. Who was that? A. Leonard Woronoff.
Q. Now, Lieutenant, directing your attention to the five
defendants who are seated here at the counsel table, did
you have occasion to see them in and about the Glen Echo
Park, in or about the end of June or the first of July? A.
I did.
* * * * * * * * * *
13 Q. What were the circumstances under which they
[Appellants] entered the Glen Echo Amusement
Park property? A. They broke out of the picket line and
ran from the picket line to the Ranch Restaurant
14 which is located inside the park.
Q. Now, Lieutenant, what, if anything occurred
after they broke from the picket line and ran to the res
taurant? A. They ran up to the counter and requested
service.
Q. And what, if anything, was done then, Lieutenant?
A. I notified the five defendants that they were undesirable
on the park property and I ordered them to leave immedi
ately or be placed under arrest for trespassing.
Q. What occurred then? A. They immediately turned
their backs on me and requested service again.
* * * * * * * * * *
15 Q. They turned their backs on you, Lieutenant,
following your ordering them out of the park? What
occurred then? A. I tapped each one on the shoulder, and
E39
as they turned around, I told them they were under arrest
for trespassing.
Q. And then as you placed them under arrest for tres
passing where did you take them? A. We escorted them
to our office and then we had transportation by Montgomery
County police to Bethesda, where we swore out the war
rants.
Q. Was this restaurant on the property of the Glen Echo
Amusement Park? A. Yes, sir.
16 Q. Now then, Lieutenant—incidentally, what is
your connection with Rekab and Kebar, Incorpo
rated? A. I have charge of the police department, their
officers and guards.
* * # * # # * # # #
17 Cross-Examination
By Mr. Sharlitt:
* * * * * * # » # #
23 Mr. Sharlitt Resumes Examination of the Witness
Q. Mr. Collins, at the time you came up to these defend
ants in the restaurant, and instructed them to leave,
24 what did they do at that point? A. They immedi
ately turned their backs on me and requested service.
Q. Did they each request service? A. I can’t say they
did, but they were talking and requested service from the
attendant there.
Q. It is your testimony that one of them, at least, re
quested service? A. As I observed them; yes.
Q. Then what happened after that? A. I tapped each
one on the shoulder and they turned around and I placed
them under arrest for trespassing.
Q. And I believe you testified you escorted them to the
park office. A. To our office in the park.
Q. And their conduct at that time was peaceful, was it
not, Lieutenant Collins? A. Yes, sir.
E40
Q. And it was peaceful in the restaurant, was it not,
Lieutenant Collins? A. They were quiet.
Q. And it was peaceful until they left the park, was it
not? A. They were.
* # * # * # * # # #
31 Abram Baker
a witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified as follows, upon
Direct Examination
By Mr. McAuliffe:
Q. Mr. Baker, may we have your name and address? A.
Abram Baker, 3315 Wisconsin Avenue, N. W.
Q. What is your position with the corporation,
32 Rekab, Inc? A. President,
Q. What is the relationship of Rekab, Inc., and
Kebar, Inc., to the Glen Echo Amusement Park, here in
Montgomery County, Maryland? A. Rekab, Inc., is the
holding company and Kebar, Inc. is the operating company.
Q. You mean the land is titled in the name of Rekab,
Inc., as owner? A. Yes, sir.
* * # * # # # * * #
33 Q. Now, Mr. Baker, are the corporations, Rekab,
Inc. and Kebar, Inc., presently going corporations,
authorized to do business in this State? A. Yes, they are.
Q. Who are the other officers of the corporation? A.
Sam Baker and Louise Baker.
Q. And are those officers the same for each corporation ?
A. Yes, they are.
* * * * * * * * * *
36 Q. As President of Rekab, Inc., and Kebar, Inc.,
Mr. Baker, do you know who owns the restaurant
on the Glen Echo Amusement Park?
By Mr. Sharlitt: It is the same question.
E41
By Judge Pugh: Objection over-ruled.
A. Rekab, Inc.
Q. And as President of Rekab, Inc., and Kebar, Inc.,
do you know, on July 2, 1960, to whom the restaurant on
the Glen Echo Amusement Park property in Montgomery
County, Maryland, was leased to? A. B. & B. Cater-
37 ing Company.
Q. Do you know who operated the park, and to
whom the lease was in effect; what corporation? A. Kebar,
Inc.
# # # # # # # # # #
By Mr. McAuliffe: Cross-examine him.
Cross-Examination
By Mr. Sharlitt:
Q. Mr. Baker, I believe it was your testimony that
38 as of July 2,1960 that Kebar, Inc., was not operating
this restaurant; is that correct? A. Kebar, Inc.,
leased it out.
Q. Now, just answer my question, please, sir; were they
operating the restaurant? A. No.
Q. Now on July 2nd, were there any employees of Kebar,
Inc. present on the premises of that restaurant? A. I don’t
know; I wasn’t there.
Q. Well, how long is that lease for, between you and
the B. & B.? A. Two years.
Q. And that gives B. & B. the right to occupy the prem
ises alone? A. At my discretion.
Q. Had your discretion been exercised to permit them
to occupy and run the premises on July 2nd of this year?
A. Yes, sir.
Q. So that B. & B. and its servants, and not Kebar and
its servants were in occupancy of the restaurant on that
day; is that correct? A. I can’t tell you. I wasn’t there.
Q. Is there any doubt in your mind that B. & B. were
E42
operating that restaurant under its lease? A. They were
operating i t ; yes, sir.
39 Q. So that Kebar, Inc., wasn’t? A. That is right.
Q. So the patrons of that restaurant were pa
trons of B. & B. and not patrons of Kebar, Inc., isn’t that
so? A. I don’t know. If the lease says so.
Q. Is there any doubt in your mind about that? A. I
didn’t read the lease lately.
Q. The money that comes over the counter at that res
taurant, does that go to B. & B.? Who gets the income
from the restaurant? A. We rent it out.
Q. They pay you rental? A. Yes.
Q. And don’t they get the income from the customers
and then pay you rental from that income? A. Yes.
Q. Who employs the waitresses there? A. B. & B. Cater
ing Company.
Q. Who employs the cooks? A. B. & B. Catering Com
pany.
Q. Who employs the bus boys and clean up people? A.
B. & B.
Q. Are there any other employees on the premises
40 of the restaurant, or were there on July 2nd? A.
I don’t know.
Q. Well you are an officer of Kebar, Inc., aren’t you,
sir? A. That is right.
Q. And Kebar leased these premises to B. & B. did they
not? A. Yes.
Q. And they are on the premises of the park. You have
just testified to that, haven’t you? A. That is right.
Q. You have seen this restaurant in operation, haven’t
you? A. Yes.
Q. You are familiar with the operation of the restaurant,
as well as the operation of the park, aren’t you? A. Yes;
they have a Manager and I have nothing to do with it.
Q. And Kebar, Inc., has nothing to do with it; isn’t
that so? A. I collect the rent.
Q. I am talking about the operation. You said you didn’t
E43
have anything to do with it, and my question is, isn’t it
true that Kebar, Inc., doesn’t have anything to do with the
operation of the restaurant? A. In the lease it says
41 that anything wrong, in any way, that I, in my dis
cretion, can tell them what to do.
Q. Prior to this incident—and is this something that you
personally have the right to do? A. No. The company in
operation.
Q. And prior to July 2nd, had you talked to any of the
officials of B. & B. regarding an interference by you with
their operation of that restaurant? A. Prior to that?
Q. That is right, A. Well, they understood it from the
beginning.
Q. On July 2nd, sir, at any time during that day, did
you have any conversation with any official of B. & B.?
A. I was out of town, sir.
Q. Now under ordinary circumstances— the operation of
B. & B., they are in full control of those premises, are
they not, sir? A. If I say so.
Q. And your testimony was that you would have to talk
to the officials of B. & B. if this would not be the case;
otherwise it is the case, isn’t that true? A. I don’t under
stand you.
Q. The ordinary situation, in the operation by B. & B.
of that restaurant, is in their control unless you tell them
otherwise; isn’t that so? A. That is right.
42 Q. Do you know of any reason at all why that
would not have been the case on July 2nd? A. I
wasn’t there. I don’t know.
Q. So you don’t know of any reason at all why this
would not have been the ease on July 2nd? A. I cannot
answer it.
Q, My question is if you know of any reason why the
operation of that restaurant by B. & B. to the exclusion of
E44
Kebar, Inc., would not have been so on July 2nd. Do yon
know of any reason ? A. No.
43 By Judge Pugh: Did you instruct them with re
spect to any incidents that might be caused by those
in the picket line coming over on the park property? A.
Yes, sir.
Q. All right, tell us about that. A. Like I said before;
on June 30th when we found out from the newspapers that
they were coming out for the first time, I got Mr. Woronoff
and Lieutenant Collins together and we talked it over,
and the idea was that if they came over the picket line, that
within a reasonable time they would be arrested for tres
passing.
44 Q. And you so instructed Lieutenant Collins to
that effect? A. Yes and Mr. Woronoff, if I was not
there.
* # * * = & # * # # #
47 Q. Now this instruction you gave Mr. Woronoff.
This was consistent with all your policies in running
that park, wasn’t it, Mr. Baker? A. Consistent with
running the park?
Q. Yes, sir. A. Well he did whatever I told him to do.
Q. This was to implement your policy of racial segre
gation at that park, was it not?
By Mr. McAuliffe: Objection. There is no indication
of that in the testimony.
By Judge Pugh: Objection over-ruled.
A. What was the question? (The last question was
read back by the reporter). It was.
* # * * # * # # # *
48 Re-Direct Examination
By Mr. McAuliffe:
Q. Mr. Baker, does Lieutenant Collins receive his instruc
tions from Rekab, Inc., and Kebar, Inc.? A. Yes, sir.
E45
Q. And B. & B. Catering Company is just a conces
sionaire there at Glen Echo, is it not? A. That is right.
Q. You have a lot of concessionaires; don’t you? A. I
have two.
Q. In your relationship with B. & B. do you reserve the
right to enforce and maintain whatever policy Glen Echo
has as a whole?
49 By Mr. Sharlitt: I object, your Honor. The lease
will have to speak for itself.
Examination by the Court
By Judge Pugh:
Q. How large is the restaurant? As large as this Court
room, or larger? A. Just about this size, besides an up
stairs.
Q. Well you didn’t tell that company how to operate its
business, do you? A. If they do not serve the right food
to the customers, I have a right to tell them to improve it.
Q. Don’t they lease the building? A. They lease it from
Kebar.
Q. Don’t they have a right to operate the restaurant as
they see fit? A. Yes they do, but it is just the idea—about
the food part of it, if I have complaints in my office which
I have to protect, then I have to go and tell them.
Q. How far is the restaurant from the entrance to the
park? A. About 150 feet.
Q. The park owns that property doesn’t it? A. That is
right.
Mr. McAuliffe Resumes Re-direct Examination:
Q. And with respect to the restaurant and the
50 other concession that you mentioned in Glen Echo,
do the special police enforce law and order there?
A. They do.
Q. And is that by agreement between you and the con
cessionaire? A. That is right.
E46
Re-Cross Examination
By Mr. Sharlitt:
* * * * * * * * * *
51 Q. Do you or anybody else from Kebar, Inc. come
in and supervise anything that goes on inside that
restaurant, as a matter of routine? A. No.
By Mr. Sharlitt: I have no further questions.
Re-Be-Direct Examination
By Mr. McAuliffe:
Q. Mr. Baker, to whom does the concessionaire, B. & B.
look to eject a disorderly person, or any person not desired
in the restaurant?
By Mr. Sharlitt: Objection.
By Judge Pugh: You ought to have the lease. The
written agreement speaks for itself.
By Mr. McAuliffe: There is no question in our minds.
The defense has raised the question.
Judge Pugh: The restaurant had a lease on the prop
erty, and if they did not make a complaint, it would be a
pretty good question whether they would be guilty of
trespass. Do you have a written lease? A. Yes, sir.
52 Q. Where is it? A. It is at the office.
By Judge Pugh: You better get it out here, Mr.
McAuliffe.
* * * * * * * * * *
Leonard Woronoff
a witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified as follows, upon
Direct Examination
By Mr. McAuliffe:
Q. State your name and address. A. Leonard Woronoff,
1678 21st Street North, Arlington, Virginia.
E47
53 Q. What is your position if any, with the Glen
Echo Amusement Park, and specifically with Rekab,
Inc., and Kebar, Inc.? A. I am the General Manager.
Q. Directing your attention to the date of July 2nd,
1960, were you the General Manager at that time? A. Yes,
sir.
55 Cross-Examination
By Mr. Sharlitt:
Q. Mr. Woronoff, you have heard the testimony of Mr.
Baker, that the instructions were that picketers, as well as
negroes, were to be excluded. Were those instructions
repeated by you to Lieutenant Collins on July 2nd? A. I
think so.
Q. Do you know what crime you instructed Lieutenant
Collins to arrest these people for, if they refused to leave?
A. In my discussion with Lieutenant Collins, I would
simply tell him that these people were not wanted in the
park and if, after giving them due notice, they refused to
leave, our only recourse was to arrest them for trespassing.
* * * * * * * * * *
56 By Mr. McAuliffe: Subject to offering the lease;
that will be the State’s case.
By Mr. Sharlitt: To save time I will make my federal
motions and save my others until we read the lease.
By Judge Pugh: You are in a State Court. The Judge
sitting without a jury is the judge of the law and the fact.
By Mr. Sharlitt: We feel, your Honor, that the
57 action here, of these five arrests on July 2, 1960,
involved a violation of these defendants’ rights
under the Fourteenth Amendment of the Constitution of
the United States, both the equal protection clause and
the due process clause, in that the State of Maryland and
its instrumentalities were being used to implement the
policy of race discrimination of Glen Echo Park; and fur
E48
ther, that the instrumentalities of the State of Maryland
were being used to deny these defendants” federal statu
tory rights, under Secs. 1981, 1982 and 1983 of Title 43
of the United States Code, and we support this by refer
ence to the cases of Marks v. Alabama and Shelley v.
Cramer, 334 U. S. 1. I simply make our motion to direct
the verdict on this constitutional ground at this time.
By Judge Pugh: The motion is denied.
By Mr. Sharlitt: Your Honor, Defendants’ case will
attempt to show that Section 577 of Article 27 of the Code
was not violated, in that notice was not given prior to
entry upon the land; and, further, that in this case it is
quite clear that these defendants were on this ground in an
attempt to exercise what they felt to be a right to use the
facilities of this park, and that their trespass, assuming
it was a trespass, should be considered in that light.
58 In this case we have two white defendants, which
we did not have yesterday. Further the statute re
quires^—this is a trespass statute, and the right to prose
cute can be maintained solely by the lessor of the land;
not by the owner. If sole possession has been passed to
B. & B. Catering Company, as we feel is the case, then
it is our contention that these complaining witnesses have
no grounds for bringing a criminal action.
Ronyl J. Siewari
a witness of lawful age, called for examination by counsel
for the defendants, and having first been duly sworn, ac
cording to law, was examined and testified as follows, upon
Direct Examination
By Mr. Sharlitt:
Q. State your name and address. A. Ronyl J. Stewart;
1734 Upshur Street, N. W.
Q. Are you employed, or are you a student? A. A
student.
E49
Q. Where? A. At Goddard College, in Plainfield,
Vermont.
Q. On the night of July 2, 1960, Miss Stewart, were
you in the vicinity of Glen Echo Park, in Montgomery
County? A. I was.
Q. Were you in the restaurant in Glen Echo Park
59 at that time? A. I was.
Q. At that time were you approached by Lieu
tenant Collins, whom you have seen testify here? A. No.
Q. You were not approached by him in the restaurant?
A. I was approached by him as a member of a group; not
personally.
Q. Where were you standing, at the time he approached
this group ? A. I was standing at the counter of the restau
rant, facing him.
Q. Did Lieutenant Collins then say something to the
group? A. He did.
Q. And did he say it in the earshot of all members of
the group? A. He did.
Q. What did Lieutenant Collins say? A. I cannot quote
him exactly.
Q. Give your best recollection. A. The best recollection I
have is that he said “ You know that this park is segre
gated and that you are not welcome here” and I can’t
remember anything else. Oh yes, and “ You will be given
a reasonable length of time to leave the park.”
Q. Then what happened? A. The group turned
60 away from him.
Q. Did you, or any other members of the group,
in your presence, request service from the restaurant? A.
Yes, we did.
Q. Did you? A. Yes.
Q. What did you ask for? A. I asked for a coke.
Q. What happened? A. There was no answer given.
Q. Miss Stewart, had you been on the premises of that
restaurant before that time ? A. I do not understand your
question.
E50
Q. Had you been in that restaurant at an earlier date?
A. No.
Q. What happened after Lieutenant Collins made this
statement to you regarding the park being segregated and
that you weren’t welcome? A. The group as a whole
turned away from him and again attempted to order.
Q. And again what happened? A. Lieutenant Collins
went down the line and tapped each member of the group
on the shoulder and turned him around and he again said
to each member of the group 44 You are under arrest for
trespass.” A question was asked by one of the
61 members of the group—I am not sure which one, I
think Martin Schain—440n what grounds are we be
ing arrested?” and Lieutenant Collins replied 44For tres
passing” and then Lieutenant Collins went down and
pointed to the three negro members of the group and said
“ You are colored; 44you are colored” and “ you are col
ored” and he pointed to the two white members of the group
and he said 44You are undesirable” and “ you are undesir
able. ’ ’
Q. And all your conversation with Lieutenant Collin s
took place in that restaurant; is that correct? A. Yes.
Q. Then what happened, Miss Stewart? A. A conversa
tion was entered upon between Helene and Lieutenant
Collins and I don’t know just the gist of this conversation.
After the conversation we were taken out of the restaurant
and put in police cars and taken to the Montgomery County
police station.
Q. From the time that Lieutenant Collins approached
you to the time you left the park, was there any disorder
what-so-ever ? A. No.
Q. Were you able to observe the conduct of the other
four defendants ? A. I was.
Q. From the time Lieutenant Collins first ap-
62 proached you to the time you left the park? A. Yes.
Q. And was their conduct peaceful in all respects?
A. It was.
* * * * # # # # # #
E51
81 Martin A. Schain
a witness of lawful age, called for examination by counsel
for the defendants, and having first been duly sworn,
according to law, was examined and testified as follows,
upon
Direct Examination
By Mr. Sharlitt:
Q. Mr. Schain, state your name and address. A. Martin
Schain, 2131 0. Street, N. W.
Q. Are you employed, or are you a student? A. I am
a student.
Q. Whereabouts? A. I go to New York University.
Q. On the night of July 2nd, 1960, were you present on
the premises of Glen Echo Park? A. Yes, I was.
Q. Were you present on the premises of the restaurant
at Glen Echo Park? A. Yes, I was.
Q. What was the purpose of your being present
82 at the restaurant in Glen Echo Park? A. On
July 2nd?
Q. Yes. A. I wanted to get served, and I didn’t see
any reason why they wouldn’t serve me.
Q. Were you served? A. No.
Q. Now, had you been present at the restaurant in
Glen Echo Park prior to July 2nd, 1960? A. Yes, I had.
Q. When was that? A. That was the night before;
Friday night.
Q. Were you approached by Lieutenant Collins on the
night earlier and asked to leave? A. No.
= * * * * * # # # # *
84 Cross-Examination
By Mr. McAuliffe:
* * * » # » # # # *
91 Q. Did they serve anybody when they came in?
A. The counter closed; no.
E52
Q. And did it close down almost simultaneously with the
appearance of negroes? A. It closed down a few minutes
afterwards.
* * * * # # * « # #
106 Abram Baker
a witness of lawful age, recalled by counsel for the plaintiff,
and having already been sworn, testified as follows, upon
Direct Examination
By Mr. McAuliffe:
Q. Mr. Baker, I show you this agreement and ask you
if you can identify it? A. Yes, sir.
Q. And what is that agreement? A. That is an agree
ment between B. & B. Catering Company and Kebar, Inc.
Q. And Mr. Baker, when was this agreement in effect?
A. That agreement was in effect from the opening of the
season of 1956 to the opening of the season for 1958.
Q. What did you do in 1958, Mr. Baker? A. I made a
renewal agreement.
107 Q. I show you this and ask you if that is the
renewal agreement?
By Mr. Sharlitt: I object to that characterization “ re
newal agreement” until I have a chance to look at that
second document. (Mr. McAuliffe hands the document to
Mr. Sharlitt, who examines it) Your Honor, I move to
strike that answer, because this cannot purport to be a
renewal agreement, since it doesn’t refer to any lease at
all. It purports to be an agreement of itself.
By Judge Pugh: Let me see it. (Document is handed
to the Court by Mr. McAuliffe). Mr. Baker, what are
they referring to in this paper, this letter dated August
29, 1958, when it states here “ if terms and conditions
meet with your approval?” Is that referring to this
matter? A. It is referring to the lease to B. & B. Catering
Company.
E53
Q. Another lease other than the one Mr. McAuliffe had in
his hand? A. No, sir.
Q. The same lease? In other words, this letter and the
paper Mr. McAuliffe has in his hands, constitutes the trans
action that was in force on July 2nd, 1960? A. That is
right, sir.
108 By Mr. McAuliffe: We offer this letter in evi
dence and ask that it be marked State’s Exhibit #8.
By Mr. Sharlitt: That document is completely un
ambiguous and I don’t see how you can use it.
By Mr. McAuliffe: This recites the agreement and that
recites the fact that this agreement is still in effect, or is
a part of it, and Mr. Baker has testified that these two
instruments together constituted the agreement. The Court
asked Mr. Baker to produce the lease and he has done the
best he could. He has produced these two papers.
By Judge Pugh: Is that all the papers that existed
between you and the B. & B. Catering Company?
A. Yes, sir.
And these are the documents under which the restaurant
was holding the property on July 2nd, 1960? A. Yes, sir.
By Mr. Sharlitt: I object to the inclusion of this docu
ment.
By Judge Pugh: The objection is over-ruled. It will be
admitted in evidence.
# * * * # # * * # #
110 Cross-Examination
By Mr. Sharlitt:
Q. Mr. Baker, is this the original lease? A. I don’t know.
Q. Is there a document that purports to be a lease be
tween you and B. & B. that contains the date? To refresh
your recollection—this does not, sir. A. It starts at the be
ginning of the season and winds up the season; that is all
I know.
Q. If I may, I will ask you just to be responsive. Is there
a document in existence between you and B. & B. that con
E54
tains a date? A. The gentleman at B. & B. may have a
date on his. He has a date on his.
By Mr. McAuliffe: The President of B. & B. is here in
Court and will be our next witness.
Q. Well this lease terminated on or about September 1,
1958, did it not, sir? A. Which one?
Q. This purported document. A. Yes, sir.
111 Q. Now, Mr. Baker, would you read the first sen
tence of this letter dated August 29, 1958! A. (wit
ness reads) “ This will confirm the agreement made with
you for the exclusive privilege of operating—”
Q. (interrupting the witness) What agreement was that
referring to? A. You have the agreement back of you.
Q. But this letter incorporates new provisions, doesn’t it,
sir? Doesn’t this have new and different provisions than
the ones in the original lease ? A. Maybe, of money value.
Q. Isn’t it true that as of August 29, 1958, you had dis
cussions with representatives of the B. & B. about the fu
ture arrangements between the two corporations. A. No,
s ir; not before that letter.
Q. How were the terms in this letter arrived at? A. Well
if you read it all, it says if he agrees he shall sign it, or
otherwise talk to me about it.
Q. Well in effect then, what you were doing was setting
new terms; Avere you not? A. With money, yes.
Q. Well, had you had any conversation Avith Mr. Bergfeld
prior to the time you sent this letter to him? A. Not about
the lease.
Q. So that you were setting new terms in this let-
112 ter? A. I really don’t know. I would have to look
them over. That is September of 1958, you knoAV.
Q. In fact, it is August 29, 1958. It is your testimony is
it not, sir, that there was no conversation between you and
Mr. Bergfeld to the effect that you were merely continuing
the other lease, because you hadn’t talked to him up until
August 29, 1958; isn’t that so? A. We became good friends,
so I didn’t think I had to talk to him.
E55
Q. Yes, but you wrote him about money. A. Well, that
was up to him.
Q. That is a new term in this contract; isn’t it! A. I
could shake hands on a thing like that, if it wasn’t on ac
count of death, or your children.
Q. You couldn’t shake hands on the amount of money,
could you?
By Mr. McAuliffe: Objection; it is argumentative.
Q. The point is, Mr. Baker, that there was no conversa
tion between the two of you as to the continuation of this
lease, when you sent this letter to Mr. Bergfeld; isn’t that
a fact, sir? A. I didn’t think I would have to confer with
him.
Q. So there was no understanding between you and Mr.
Bergfeld that the lease was to be continued? A. I think
there was.
113 Q. You said you didn’t talk to him. A. I didn’t
have to. I said we were good friends.
Q. But you weren’t good enough friends for the change;
is that correct ? A. If it were not on account of deaths in
the family and Kebar, Inc., and Rekab, Inc.
Q. Well, did you have any conversation with Mr. Berg
feld prior to the time that you got this signed copy back;
that is to say, between the time you sent him this letter,
asking for his signature, and the time it came back? A.
He sent that in after I was gone from the Amusement Park;
signed.
Q. Did you have any discussion with him after the time
this was received, about any of the practices of the
114 park, which were not included in this ? A. I had no
discussions at all with him, about anything in the
park.
Q. You thought you could rely on this? A. That; plus
friendship.
Q. So that “ plus friendship” is not this plus any other
written document. A. Plus the lease that went before it.
E56
Q. Isn’t it true that you just felt that you had a general
understanding with him as to all the practices involved
there! That you were just dealing between friends on any
thing except the specific terms contained in this letter ? A.
If we weren’t friends, I would have had to make out another
one just like that.
Q. So it was just a matter of friendship as to anything
that was not included in this letter? A. Yes. We had the
other document to go along with it.
Q. You have testified that you didn’t even discuss the
other document. A. Yes I did.
Q. You did, or you did not discuss it? A. I did not dis
cuss it.
Q. So as of the time you entered into this thing, you had
no detailed understanding with Mr. Bergfeld as to anything
not included in here ? A. Plus the other contract.
115 Q. I thought you said you just went on the basis
of friendship with Mr. Bergfeld, in August of 1958?
A. That is right.
Q. Well did you discuss with him, prior to August 29,
1958, whether he was a lessee or a licensee? A. I didn’t
think I had to.
Q. Did you, or didn’t you? A. No I did not.
Q. Did you discuss who would have control of the patron
age of his restaurant? A. No, I did not.
Q. All those things were just left unsaid? A. That is
right, sir.
Q. The only thing that was said between you was this
letter? A. That is right, sir.
Q. And you felt that no agreement was necessary on
these other things? A. That is right, sir.
# # # * * = * = * # # *
116 Mr. Sharlitt continues:
Q. Why didn’t you renew the lease, on the lease? A. I
can explain that to you.
Q. I don’t think you have. A. I said if it wasn’t for
Kebar, Inc., and Rekab, Inc. and my children, I wouldn’t
E57
even have to have a lease. I would just have a handshake
with the proposition. That is the way I felt about it.
Q. Well, lets take a look at the period after August 29,
1958; were there any changes in the practices and the poli
cies of the restaurant, commencing at the time the agree
ment was made August 29, 1958? A. No, sir.
Q. And prior to that time, the restaurant had been oper
ated by Mr. Bergfeld, fully under his control; isn’t that
true? A. I don’t know.
Q. Well you testified this morning that they hired all the
employees there. A. That is right.
Q. And that went on after this August 29, 1958,
117 agreement; did it not? A. That is right.
Q. Did you ever have any occasion to go in there
and tell him to run his restaurant any differently than the
way he was running it? A. I didn’t have to tell him in the
restaurant. He would come in the office and I would ex
plain to him if there was anything wrong, or wasn’t wrong.
Q. From the time they rented the restaurant, they had
full charge of i t ; isn’t that so ? A. That’s what you say.
Q. I want to know what you say. A. If I saw anything
wrong, in any way, I would explain it to him and try to
change it.
Q. Who brought the fixtures in there? A. B. & B.
Q. They are attached to the property; aren’t they? A.
I really don’t know.
Q. Do you know if at any time whatsoever there was ever
an occasion when any agents or representatives or employ
ees of Kebar, Inc., ever interfered with the patronage at
that restaurant prior to July, 1960? A. The exact date I
wouldn’t know, but there must have been times.
Q. What do you mean? A. We have complaints
118 downstairs, lots of times, and wTe have to get hold of
somebody and straighten them out.
Q. I am just talking about complaints in the restaurant.
When these complaints came up, you took them up with Mr.
Bergfeld, didn’t you? A. Yes, sir.
E58
Q. You didn’t go in and correct them yourself? A. No,
sir.
Q. Was there ever a time that you went in and told them,
or, in fact, did pick and choose their customers? A. No,
I did not.
Q. That was their decision, was it not? A. They knew
who they wanted in and who they didn’t.
w ty* W w -A- -*V -V W w
119 By Judge Pugh: If the lease has a provision say
ing that B. & B. has control over who shall go into
the property and who shall not, read it to him.
By Mr. Sharlitt: We feel this portion is relevant: “ Wit
nessed, that the said. Park Company, for and in considera
tion (and so forth) and the performance by the said Con
cessionaire of all the covenants and agreements here-
120 in expressed, the prompt performance of all the cove
nants herein contained being a condition precedent,
the Park company hereby extends to the Concessionaire,
the exclusive privilege of maintaining and conducting at
Glen Echo Park, situate in the County of Montgomery,
State of Maryland, all concessions for the purpose of sell
ing food and beverages.” We think that is exclusive, not
only as to all other concessionaires but exclusive as to their
own facility.
By Judge Pugh: We have been waiting here to get the
original lease and have it in evidence, and now you are
going into the parole evidence rule. You can argue the
lease, but having this witness interpret the terms of a lease
that is in writing, I can’t see how you can expect him to do
that. He says the two papers together constitute the agree
ment under which the B. & B. opened the restaurant in July,
1960.
By Mr. Sharlitt: Nothing further.
* * * * # # # # » #
E59
121 William Birgfeld
a witness of lawful age, called for examination by counsel
for the plaintiff, and having first been duly sworn, accord
ing to law, was examined and testified as follows, upon
Direct Examination
By Mr. McAuliffe:
Q. Mr. Birgfeld, state your name and address. A. Wil
liam Birgfield, 5107 Maryland Drive, Sumner, Maryland.
Q. What is your employment? A. 1 am an officer of
B. & B. Catering Service.
* * * * * * * * * *
By Judge Pugh: Are you holding under the paper that
has been introduced in evidence? Were you holding pos
session of this restaurant on July 2, 1960, under
122 these two papers? Have you seen the papers? A.
I am fairly familiar with all the facts involved in
this. This was apparently a previous lease wherein certain
addendums were made by a letter I received.
By Judge Pugh:
Q. Do those two papers constitute your legal right to oc
cupy the restaurant? A. Number one, this is the longer
lease, which has the technical terms in it, and we are au
thorized to operate under certain circumstances, and there
were addendums made at a later date.
By Judge Pugh:
Q. Were the additions made in that letter? A. Yes, sir.
This was a slight change in the rental and combined the
advertising and promotion and rental, putting them all into
one category, and Kebar, Inc., thought we should not hire
anyone under the age of eighteen.
Q. I show you State’s Exhibits 8A and 8B and ask you,
are they the papers under which you conduct and operate
the restaurant in Glen Echo Amusement Park, and did on
July 2nd, 1960? A. Yes, sir.
E60
Q. Are there any other papers that have anything to do
with your occupancy of those premises! A. No, sir;
123 no other papers.
Mr. McAuliffe Resumes Direct Examination:
Q. And does your agreement as of July 2, 1960, between
B. & B. and Kebar, consist of both of those documents,
State’s Exhibits 8A and 8B! A. Yes, sir; this is the agree
ment and this is the addition to and in change thereof.
Q. What is your position with the B. & B. Catering Cor
poration! A. I am President, sir.
133 By Mr. Sharlitt: Your Honor, I renew my motion
for a directed verdict on constitutional grounds at
this point for insufficiency of evidence.
By Judge Pugh: The motion for a directed verdict is
denied.
139 Judge Pugh's Oral Opinion (Greene, ei al.)
As I stated yesterday, in a somewhat similar case, it
is most unfortunate that these parties have used the
method that they are attempting to use, in order to estab
lish what they believe to be their constitutional rights, or
whatever rights they may call them. To come out into
this County, in large groups of thirty-five and forty people,
and try to force a change of policy on the part of a private
business is really unthinkable. That is the nearest thing
to taking the law in your own hands that I can think of.
If you want to litigate what you believe to be your rights,
then litigate them civilly and in an atmosphere where
the legal principles and the constitutional principles may
be passed upon, without the fear or without the possibility,
of stamping the individuals guilty of some misdemeanor.
It is a fundamental principle of this country, as I under
stand the Constitution, that a man in business has a right
to do business with anybody that he sees fit, whether they
E61
be black, white, yellow, or whatever color he might be,
and for any reason that he may deem sufficient in his
opinion. If that were not the law, then the man would not
stay in business long. His idea of how he should transact
business must be the controlling influence. If a man in
business cannot run it the way he sees fit, he would
140 soon be out of business. If he is required to con
duct his business on the ideas and fancies of groups
of people, it will no longer be Ms business. It may be
that if he would listen to these groups of people, he might
get more business, but that is not the question. He is
responsible for his own livelihood and he has to make a
living out of the business, and if he decides to exclude
certain people, for any reason he sees fit, and he goes
bankrupt, that is his hard luck. If the business firms of
this County cannot stay in business in the way they desire
to transact it with the public, they might as well close
up all private business and let the government take it over
and run it, under the rules of segregation as decided in
the school cases. So I say, in private business a man
has a right to transact business the way he sees fit, whether
it be arbitrary, capricious, unreasonable, or whatnot. The
test as to whether or not he remains in business is whether
or not the public wants to do business with him. If the
public doesn’t want to do business with him, because he
advocates certain racial policies, he will soon be out of
business and then he is through. He will then no longer
be making a livelihood out of his business. He will then
have to do something else, or be put on public relief.
There is not a great deal of difference between this case
and the case tried yesterday. This morning when we heard
the testimony about the restaurant, I was a little in
141 doubt as to whether or not the lessees of the restau
rant did desire or would refuse to serve these de
fendants, had they had the authority or the opportunity
to do so. While that question has been satisfactorily
removed from this case by proof of the lease, there is no
evidence that this Catering Company refused, or actually
E62
told them the get off of their restaurant property. There
is evidence in this case that these defendants deliberately
went on the property of the Glen Echo Park Amusement
Company; that they ran across its property for the pur
pose of going to this restaurant, and they did it after
getting away from the policeman who was there watching
the picketing outside of the grounds of the amusement
park.
When you are running, and a policeman is behind you,
it is a clear indication that you are doing wrong. If you
are not doing wrong, then you have no business to run
when you know there is a uniformed policeman behind
you. It is plain from the evidence in this case that these
defendants went out there for one purpose—for the pur
pose of trying to force on the management of Glen Echo
Park Amusement Company their asserted right to impress
on the Amusement Company that it was wrong in maintain
ing its policy of segregation. That is not within their
authority. They did not have that right, in the opinion
of this Court. Under the law of this State, as it stands
today, if anyone decides he desires not to serve negroes,
because they are negroes, they have a right to refuse
142 to do so. Whether that is right or wrong will prob
ably have to be determined by the Court of Appeals,
but as of this time no decision has been cited; no authority
has been cited in this State, where a man who operates
a private business does not have the complete and absolute
control of it.
Now getting into the question of Avhether or not you
can use the facilities of the State to enforce a policy of
that kind. I might say that we are now trying these de
fendants under the law of trespass. By way of compar-
sion, in answering the arguments of Mr. Sharlitt, wouldn’t
it be a nice state of affairs if you owned a piece of prop
erty out here in Rockville and somebody came on your
property and just sat there, and you went out and saw
him sitting there, and assuming, for the sake of argument,
it is two or three o’clock in the morning, and you go out
E63
there and tell him to get off your property, and he refuses
to get off, and then you still insist that he get off and you
give him five minutes to leave and you tell him if he doesn’t
get off that you are going to have him arrested for tres
passing—wouldn’t it be a ridiculous state of affairs if
the owner of this land could not secure a trespass warrant
and have the use of the facilities of the police department
to have that man arrested for remaining on your property!
If that were the law, very clearly the people who own
property would take the law in their own hands. In the
rural sections of this County I can see some of the
143 farmers going into the house and getting a shotgun
and using it, and in my judgment, if the law did not
protect him in his right to be secure in the ownership of
his property and enjoy it, he would have a right to do so.
I am not condoning shooting people for trespassing, but
I am saying if the police department did not help the
citizens of this County in the protection of their property,
we would be in a sad state of affairs.
This situation in the Glen Echo Amusement Park is
not exactly similar to that, but we are dealing with the
law of trespass, and whether or not it is a wmnton tres
pass. It is wanton when you are told to get off and you
don’t get off. How many times you have to tell them
that, I am not in a position to say, but in my own judg
ment when a man comes on your property and you tell
him to get off, and he doesn’t get off and remains there,
it is time for the owner of the property to kick him off,
or for the police department to come in and arrest that
man for trespassing. This is the law today, and we are
trying these defendants under that law. That is the law
of trespass of this State, and if it were not we would be in
a state of chaos with reference to the ownership and oc
cupancy of our homes.
Wouldn’t it be a sad state of affairs if a man knocked
at my door and I let him in, and after he entered the house
he became boisterous and loud, and he tried to tell
E64
144 me this and that and I say, “ Get out of my house;
you are ordered off my property” and then he re
fused to get off the property and I call the police and
then the defense is that I didn’t tell him not to come on
the property; I invited him into my house and, therefore,
it is not a wanton trespass?
In this case it is a wanton trespass when a group of
people stand out in front of a man’s place of business and
attempt to harass him or keep people away, and prevent
them from doing business with him. The law seems to
condone the fact that they can parade up and down out
side, or pocket him. I do not condone that practice, but
the law says they have that right—that picketing is proper.
Still, I do not agree with that practice, but I have to abide
by the Court’s decisions. When a man owns a business
and there are a lot of people out there picketing, and try
ing to keep possible customers from doing business with
him, it is an interference with his right to do business.
Now that is what these defendants were doing in this
case, and the evidence shows conclusively that they came
out there to picket and harass the Amusement Park owners.
The law says it is all right to picket, but why did they
break the line and go on the private property of the com
pany? They knew they didn’t have any right on the prop
erty. They knew it by virtue of the fact that the papers
were full of it, and two or three days before that it
145 had been all over the newspapers that there was a
segregation policy in effect in Glen Echo Amusement
Park.
We are not trying the segregation question here. We
are not trying the right of these defendants to test the
policy of a private corporation to establish a segregation
policy. In other words, the law of this State is, at this
time, that he can select his own patrons and I dare say
if that decision is changed, it will be a new revolution
in the laws of this State and this Country.
So I say to you people that I have been very liberal
with you, and very patient with you, and yesterday’s
E65
case was only the first of a series of cases that are to be
tried in this Court. We are only bound by the law as
established today. The Court finds each of you guilty
of trespass and sentences each of you to pay a fine of One
Hundred Dollars, and costs. Yesterday I gave the defend
ants a lesser fine than the maximum allowed by the law.
Frankly, I think your case is more aggravated. You were
parading up and down outside of this park; you college
students, one from New York, and the other college students
from here in Washington, trying to force your ideas upon
a private business in this manner. I cannot understand
how you can get into the frame of mind to think that
you can force your ideas upon them as to the way it should
run its business. I dare say if you were in business, you
would run it the way you wanted to, or you would
146 close the door. So I say in this case it is really a
wonder that you haven’t been charged with attempt
ing to incite a riot. If there had been any disorder, or any
bloodshed out there, because of your actions, and you
came in here and were convicted of rioting, you would
go to jail as quick as lighting, and I say you had better
not cause any rioting; you better stay within your bounds
and listen to your lawyers. You should go ahead and
litigate your cases, the same way the school case was
litigated—civilly, and in the proper courts, and advance
your ideas there. If the Court agrees with you, that is
one thing, and if the Court doesn’t agree with you, you
must accept it, just like the people in this County have
accepted school integration and the business men of this
County would accept any change, once their doors are open
to everyone.
Under the evidence in this case, the State has estab
lished beyond a reasonable doubt that the defendants are
guilty of wanton trespass, and the Court so finds you all
guilty as charged.
E66
State's Exhibit No. 8A
THIS AGREEMENT
Made and concluded this day of A.D., 1956,
by and between K ebab, Inc., a corporation organized and
existing under the laws of the State of Maryland, herein
after designated as the Park Company, as party of the
first part, and B & B Industrial Catering Service, Inc.,
a corporation organized and existing under the laws of the
State of Maryland, hereinafter designated as the Conces
sionaire, as party of the second part:
W itnesseth , That the said Park Company, for and in
consideration of the sum of One D ollar, in hand paid,
receipt of which before the execution hereof is hereby
acknowledged, and the performance by the said Conces
sionaire of all the covenants and agreements herein ex
pressed, the prompt performance of all the covenants
herein contained being a condition precedent, the Park
Company hereby extends to the Concessionaire, the exclu
sive privilege of maintaining and conducting at Glen Echo
Park, situate in the County of Montgomery, State of
Maryland, all concessions for the purpose of selling food
and beverages.
All fixtures, appliances, supplies, and services required
to operate the foregoing concessions are to be furnished
by the Concessionaire, and all prices of goods or other
matter sold are to be subject to the approval and agree
ment of the Park Company, and none other, for the term
of two summer seasons, said term to begin on or about the
1st day of April, 1957, and to terminate on or about
Labor Day, September, 1958. The concessions and licenses
specified in this contract are to be used and exercised
daily except when otherwise required by the Park Com
pany; and the Concessionaire hereby agrees to maintain
and conduct said concessions for the period named, for
which the Concessionaire agrees to pay and provide in
services to the Park Company:
E67
(1) The total rental for the 1957 and 1958 seasons shall
be $85,000.00 based on $42,500.00 per season, payable
in equal bi-annual installments on December 15, 1956,
June 15, 1957, December 15, 1957 and June 15, 1958.
(2) Twenty-five percentum (25%) of the gross receipts
from the operation of the Ballroom Refreshment
Stand, payable once each week.
(3) Twenty-five hundred dollars ($2,500.00) per season
for advertising and promotion to be paid in five (5)
monthly installments on the 15th Day of May, June,
July, August and on the last Wednesday of the
seasons.
(4) One hundred twenty-five dollars ($125.00) per season
for share of the cost of Montgomery County licens
ing, said sum, however, to be adjusted proportion
ately to any changes in the Montgomery County
licensing charges.
(5) A daily full course meal for the Park Company em
ployees to consist of appetizer, meat, two vegetables,
desert, and coffee, the menu and price subject to
approval of the Park Company.
(6) The Concessionaire shall handle its own money.
It Is F urther A greed, that the space, buildings or struc
tures used by the Concessionaire in the performance of
this contract is not leased to the Concessionaire; that he
is a licensee, not a lessee thereof; and his rights under this
contract shall continue only so long as he strictly and
promptly complies with the convenants, agreements and
conditions herein expressed. The Concessionaire shall not
sell, mortage, or assign or in any manner dispose of this
contract or concessions, nor any interest herein, nor have
the right or authority to allow any other person or party
to have any interest in this concession, or the premises
occupied, for any purpose, without the written consent of
the Park Company.
E68
I t Is F urther A greed, That the Park Company, by its
proper officers or agents, shall have the right at all times
to enter upon said space, buildings, or structures, for the
purpose of preserving and carrying out all the rules and
regulations of the Park Company, and to determine that all
the conditions of this contract are fulfilled, and to assist
the Park Company in this, the Concessionaire shall furnish
to the General Manager of the Park Company, duplicates
of all keys used by the Concessionaire and necessary to this
end.
It Is F urther A greed, That this contract shall be sub
ject to the following covenants, stipulations and conditions:
F irst— The Manager of the Park Company shall have
the power, during the existence of this contract, to pro
hibit any show or exhibition, or any amusement, under
the Concessionaire, which, in his opinion, shall appear to
be against good morals, public safety, or health. And the
Concessionaire shall, upon the order of the Manager, im
mediately stop, or modify, said exhibition; and upon
failure to obey such order, said Manager may summarily
cause the removal of said show or amusement, or any part
thereof, and terminate this contract or concession, and
the Concessionaire forfeits' and reliquishes all claims for
damages or loss occasioned by reason of such removal or
closing and the termination of this contract.
S econd—The Concessionaire shall not allow any form of
gambling, the renting of roms for any immoral purposes,
or the making, manufacture, drinking, sale, or, in any form
or manner whatsoever, disposal of intoxicating liquors,
excepting beer however ; and upon a repition of such
offenses in or upon Park Company premises occupied, the
Park Company, by its proper officers or agents, shall have
the right to seize and destroy any apparatus or device so
used, or intended for such use, to take possession and
close said premises occupied by the Concessionaire, with
out notice to the Concessionaire or redress on his part, to
cancel and terminate this contract, remove the property
E69
and effects of the Concessionaire, and the Concessionaire
hereby waives all claims for damages or loss by reason
of any acts of the Park Company under this section.
T hib.d— The Concessionaire and his employees shall, at
all times, be subject to and strictly comply with the rules
and regulations which shall from time to time be pre
scribed by the Park Company, its officers and agents, and
also to the regulation of admission of any persons or
vehicles therein. The Park Company shall have the right
to approve all employees used by the Concessionaire, and
upon notice that any person employed as aforesaid is
objectionable, such person shall be dismissed at once by the
Concessionaire. The Concessionaire agrees that he shall
not, by himself or agent, sell or peddle anything upon the
grounds under this contract, or within the neighborhood of
said grounds, any commodity, article, or exercise any other
privileges other than within the terms of this contract.
The Concessionaire convenants and agrees not to advertise
his operations in any manner on or about the premises
or outside the Glen Echo Park, or in any newspaper or
otherwise, except by means of such signs or form-s as shall
be approved by the Manager of the Park Company; and
shall not employ any person known as a crier or spieler,
not approved by the Manager of the Park Company.
F ourth—The Concessionaire covenants and agrees that
it will not erect or construct and structure or make any
alterations upon said premises except in accordance with
plans approved in writing by the proper officers of the
Park Company, and then only in such places designated in
writing.
F ift h —The Concessionaire shall be solely responsible
and answerable in damages for all accidents and injuries
to person or property caused by any negligence on his
part, or on the part of his agents or employees; and also
the Concessionaire covenants and agrees to indemnify the
Park Company, its officers and agents, from every claim
for damages made and brought about by reason of such
E70
negligence, and to defend, at Ms own cost, any action or
proceeding brought against the Park Company, its officers
or agents, under such claim, whether the Park Company,
its officers or agents, be sued jointly or with the Conces
sionaire or otherwise. The Park Company shall be further
protected by securing suitable public liability insurance,
the premium of which is to be paid by the Concessionaire.
S ix th—If the Concessionaire cannot do business due to
closing of his stands or stand, due to Park Company
failure, the Concessionaire is to be refunded a daily rent,
computed on a pro rata basis. However, if the closing
of the stand or stands is brought about by failure of the
Concessionaire, no refund is to be made.
S e v en t h—The Concessionaire hereby agrees to indem
nify and save harmless the Park Company, its officers and
agents, against all loss or damage, by action or otherwise,
on account of patents or copyrights, or the infringement
of the same in its operations.
E ig h t h —The Park Company, by i ts officers or agents,
may order the removal of any substances or explosives,
at their option, from the space, buildings or structures
under this contract. The Concessionaire agrees to keep
said concessions and immediate surroundings in a clean
and sanitary condition, free from all rubbish and dirt.
N in t h —It is further agreed that, should the premises
occupied under this contract be so damaged as to be
unihabitable for a period of ten consecutive days, at the
option of the Park Company, by notice in writing to the
Concessionaire, this concession may be conceded, without
recourse for damages as against the Park Company, its
officers or agents.
T e n t h —The Manager of the Park Company shall decide
every dispute which may arise between the Concessionaire
and any other concessionaire, and any dispute between the
Concessionaire and the Park Company, and the decision
shall be final and binding on all parties thereto. Upon
E71
failure to obey such decision, this contract may be termi
nated.
E leventh— Nothing in this contract shall create a co
partnership between the Park Company and the Conces
sionaire, or constitute the Concessionaire an agent of the
Park Company, to bind the Park Company, its officers
or agents, in any way whatsoever.
T w elfth—The Concessionaire further agrees that,
should the carrying out of the purposes of this concession,
or any part therein, be stopped by legal proceedings, then
the said Park Company, by its officers or agents, by written
notice to the Concessionaire, may cancel and terminate this
contract.
T hirteenth— The Concessionaire hereby covenants and
agrees that the Park Company, its officers or agents, shall
not be liable for the loss of or injury to any property,
goods, or affects of the Concessionaire, due to any cause
whatsoever.
F ourteenth—Except for the Montgomery County
license, as to which the Concessionaire pays $125.00 as
his proportionate share as hereinbefore provided, the Con
cessionaire shall procure, at his own expense, all necessary
licenses and official permits necessary for the purpose of
carrying out the provisions of this contract; and they shall
be paid and placed into the custody of the Manager of the
Park Company.
F ifteen th— The Concessionaire shall keep a true and
full record of the receipts from the operation of the Ball
room Refreshment Stand, and said record shall, at any
time, be open to the inspection of the Park Company’s
officers or agents, and for this single operation only, dupli
cate keys to any and all cash registers or other appliances
used for the collection of the receipts shall be placed in
the hands of the proper officers of the Park Company. The
Concessionaire further agrees that the Park Company’s
officers or agents shall have the right to audit directly
E72
from the cashiers, cash registers or appliances receiving
money from this operation and that no adjustment of the
readings of such registers or appliances shall be made
without the approval of the Park Company.
S ixteenth— It is further mutually understood and agreed
by and between the parties hereto that in case of default
in the payments stipulated to be made by the Conces
sionaire or any portion thereof, or in the case of non
performance of any of the provisions herein contained to
be performed by the Concessionaire, at the election of the
Park Company, its successors or assigns, to consider the
agreement at an end, the said Concessionaire, his heirs,
executors or administrators, shall forthwith remove the
paraphernalia and other things of any and every nature,
belonging to the Concessionaire, therewith connected and
concerned, from the Glen Echo Park premises, at his own
cost and expense, and in the event of the failure, default
or neglect of the failure to fully perform the obligations
of this paragraph assumed, then, in that event, the Park
Company, may, at the expense of the Concessionaire, his
heirs, executors or administrators, dismantle and remove
the same from said premises and charge the cost thereof
to the Concessionaire; and should the Concessionaire be
indebted to the Park Company by reason thereof or for
any other matter, cause, or thing whatsoever, at the termi
nation of this contract, the Park Company shall have a
lien upon all the paraphernalia, g'oods, chattels, and money
belonging to the Concessionaire or in which he is interested,
which shall be located in or about Glen Echo Park or in
the possession of the Park Company; and the Park Com
pany shall have the right to satisfy and discharge the said
lien by making sale of the said paraphernalia, goods or
chattels in such manner as shall be satisfactory to it, either
at public or private sale, but shall in any and every such
sale, whether public or private, give at least ten (10)
days notice to the Concessionaire before making sale, unless
for any reason it shall be found to be impracticable, in
E73
which event, either public or private sale may be made
without notice.
Upon termination of this contract the Park Company
agrees to purchase for a price equal to the cost less depre
ciation at the rate of ten percentum (10%) per annum
from the date of purchase, all the capital improvements
and items of equipment used by the Concessionaire in the
performance of this contract.
It is further mutually understood and agreed that each
and every of the terms, conditions, stipulations and agree
ments in this instrument contained, shall be applicable and
binding upon the Concessionaire, his Heirs and personal
representatives; and should the said Concessionaire vio
late any one or more of the covenants, agreements or condi
tions upon his part to be performed, or should he fail to
observe and fully keep each and every of the said cove
nants, agreements and stipulations, then, in that event, the
Park Company shall have the right to forfeit and terminate
this agreement without notice of any kind or character to
the said Concessionaire, and shall also have the right there
upon to dispossess the said Concessionaire either with or
without legal procedings to that end, as it may be deemed
proper and advised; the waiver of one or more breaches
and violations of the hereinbefore recited covenants and
agreements shall not be construed as a waiver of subse
quent violations or breaches of the covenants, agreements
or stipulation itself.
Seventeenth—The personal pronoun used herein as re
ferring to the Concessionaire shall be understood and con
strued as having reference to either a natural person of
either sex, a firm, or a corporation.
E ighteenth—All notices and orders herein provided to
be given to the Concessionaire, may be served by mailing
the same to him at his last known place of residence or
business, outside of Glen Echo Park, or by delivering a
copy thereof to him in person, or by leaving it addressed to
E74
him at his place of business, in said Glen Echo Park, with
any person then in charge of the same.
Nineteenth—In all instances of the agreement providing
for the cancelation of same, and particularly in paragraphs
numbered 1, 2, 6, 9, 10, and 12, but not limited to said
paragraphs, it is mutually understood and agreed that if
the cancelation is not the direct result of any legal miscon
duct on the part of the Concessionaire, or a willful and
continued violation of the conditions of this agreement by
Concessionaire after due written notice by the party of
the first part, then, upon cancellation by the party of the
first part, Concessionaire shall be entitled to a rebate ac
cording to the formula set forth in the sixth paragraph
herein, and any provisions of this agreement to the con
trary, or in conflict with this provision notwithstanding.
I n W itness W hereof, the said parties of the first and
second part have directed their proper officers to execute
these presents in triplicate and to cause the corporate seal
of said corporations to be hereto affixed.
K ebar, I n c .
By Abram Baker
President
Attest:
By (illegible)
General Manager
B & B I ndustrial Catering
Service, I nc.
By H. W. Birgeeld, J r.
President
Secretary
A ttest:
Secretary
E75
State's Exhibit No. 8B
Kebab, Into.
Glen E cho P ark
Playground of the Nations’s Capital
Glen E cho
Montgomery County, Md.
OLiver 2-6743
August 29, 1958.
Mr. William Birgfeld
B & B Catering Co., Inc.
Dear Mr. Birgfeld:
This will confirm the agreement made with me for the
exclusive privilege of operating all the food and drink
stands at Glen Echo Park. If the terms and conditions
meet with your approval, please affix your signature to both
copies and return to me, in order that I may sign them.
The following terms will cover the 1959 and 1960 Seasons:
1. The combined rental, which includes Advertising
and Promotion, plus Montgomery County Operating
License for 1959 and 1960 Seasons will be $126,250.00
payable in four equal installments of $31,562.50, pay
able on December 15, 1958, June 15, 1959, December
15, 1959 and June 15, 1960.
2. No one under 18 years of age should work for
your concern.
3. (25%) of the gross receipts from the operation
of Ballroom Refreshment Stand. It is further under
stood that you will pay the premiums on personal lia
bility insurance secured by Kebar, Inc; that you will be
solely responsible and answerable for all accidents or
injuries, which might occur under these operations,
E76
and that you will indemnify Kebar, Inc. from any
claims.
Very truly yours,
Abram Baker
Abram Baker, President
Kebar, Inc.
I agree with the terms outlined above:
H. W. Birgfeld, J r., Pres.
H. W. Birgfeld, Jr.
B & B Catering Co., Inc.
Sam Baker, Secretary-Treasurer