Bell v. State, 91

• Decision Date: 22 October 1964
• Docket Number: No. 91,91
• Parties: Robert Mack BELL et al. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 356

236 Md. 356

204 A.2d 54

Robert Mack BELL et al. v. STATE of Maryland.

No. 91.

Court of Appeals of Maryland.

Oct. 22, 1964.

James M. Nabrit, III, New York City and Tucker R. Dearing, Baltimore (Juanita Jackson Mitchell, Baltimore, Jack Greenberg, Charles L. Black, Jr., New Haven, Conn., Leroy D. Clark and Ronald R. Davenport, Pittsburgh, Pa., on the brief), for appellants.

Robert C. Murphy, Deputy Atty. Gen. (Thomas B. Finan, Atty. Gen., and William J. O'Donnell, State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

HAMMOND, Judge.

The appellants were convicted in 1961 in the Criminal Court of Baltimore of violation of Code (1957), Art. 27, Sec. 577 (Trespass), which prohibits 'wanton trespass upon the private land of others.' They were civil rights demonstrators who sat in Hooper's restaurant in Baltimore, refusing to leave until the establishment departed from its fixed practice of not serving negroes. The judgments of conviction were affirmed by this Court in January 1962, Bell v. State, 227 Md. 302, 176 A.2d 771, and the appellants sought certiorari from the Supreme Court of the United States, which granted the writ, but not until June 10, 1963. Bell v. Maryland, 374 U.S. 805, 83 S.Ct. 1691, 10 L.Ed.2d 1030. Meanwhile, on March 29, 1963, the General Assembly of Maryland enacted a public accommodations law, applicable to Baltimore City and twelve of Maryland's twenty-three counties, which took effect on June 1, 1963. This law, which is to be found in Code (1964 Supp.), Art. 49B (Interracial Commission) Sec. 11, made it unlawful for the owner or operator of a place of public accommodation, as defined, to refuse or deny the accommodations, facilities or privileges of the place to any person because of his race, creed, color or national origin. ¹ Thus the effect of the 1963 State statute was to make the trespass act inapplicable to places of public accommodation in Baltimore and the covered Counties.

On June 22, 1964, the Justices of the Supreme Court handed down their opinions in the case before us. See Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822. Chief Justice Warren and Justices Clark, Brennan, Stewart, and Goldberg, in an opinion by Mr. Justice Brennan, explained their votes to remand the case to this Court for further consideration, in light of the changes in the statutory law of the State which had been made after the convictions of the appellants in the Criminal Court of Baltimore. Mr. Justice Black in dissent, joined by Justices Harlan and White, urged that the Fourteenth Amendment did not prohibit the owner of a restaurant from refusing service to negroes. Mr. Justice Goldberg and Chief Justice Warren, although joining in the majority opinion, dissented from the dissent, in a separate opinion and Mr. Justice Douglas, with the support of Mr. Justice Goldberg, filed an opinion which gave the reasons for his vote to reach the merits and reverse outright the judgments of conviction.

In the opinion of the majority, Mr. Justice Brennan said the Court did not reach the constitutional issues presented for the reasons: (a) Maryland had, since the convictions, abolished the crime of which the appellants were convicted; (b) an appellate Court will apply the law in effect at the time of final judgment; (c) that the judgments in the present cases were not yet final because they were still on review in the Supreme Court (thus making a case where a change in the law has occurred '* * * pending an appeal on a writ of error from the judgment of an inferior court,' as in Keller v. State, 12 Md. 322, 326); and (d) it would thus seem that the Maryland Court of Appeals would take account of supervening changes in the law and apply the principle that a statutory offense which has ceased to exist is no longer punishable at all, and reverse the convictions of the appellants.

Mr. Justice Brennan reached these conclusions upon an interpretation, as the eyes of a majority of the Supreme Court saw it, of (a) the common law of Maryland, and (b) the effect and operation of Maryland's general savings clause, Code (1957), Art. 1, Sec. 3, which reads as follows:

'The repeal, or the repeal and re-enactment, or the revision, amendment or consolidation of any statute, or of any section or part of a section of any statute, civil or criminal, shall not have the effect to release, extinguish, alter, modify or change, in whole or in part, any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such statute, section or part thereof, unless the repealing, repealing and re-enacting, revising, amending or consolidating act shall expressly so provide; and such statute, section or part thereof, so repealed, repealed and re-enacted, revised, amended or consolidated shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings or prosecutions, civil or criminal, for the enforcement of such penalty, forfeiture or liability * * *.'

As to the common law, Mr. Justice Brennan said (page references will be to 378 U.S.):

'For Maryland follows the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.' (p. 230, 84 S.Ct. p. 1817.) (emphasis supplied)

As to the Maryland savings clause statute, Mr. Justice Brennan said that upon examination of that statute and the relevant Maryland cases the Court was 'far from persuaded' that this Court would hold the savings clause statute applicable to save the convictions. The opinion suggests that since the saving clause refers only to the 'repeal,' 'repeal and re-enactment,' 'revision,' 'amendment' or 'consolidation' of any statute or part thereof, it does not in terms apply to the present situation because '[t]he effect wrought upon the criminal trespass statute by the supervening public accommodations laws would seem to be properly described by none of these terms.' (p. 233, 84 S.Ct. p. 1819.) It was then said:

'The only two that could even arguably apply are 'repeal' and 'amendment.' But neither the city nor the state public accommodations enactment gives the slightest indication that the legislature considered itself to be 'repealing' or 'amending' the trespass law. Neither enactment refers in any way to the trespass law, as is characteristically done when a prior statute is being repealed or amended. This fact alone raises a substantial possibility that the saving clause would be held inapplicable, for the clause might be narrowly construed--especially since it is in derogation of the common law and since this is a criminal case--as requiring that a 'repeal' or 'amendment' be designated as such in the supervening statute itself.' (pp. 233-234, 84 S.Ct. p. 1819.)

Further, Justice Brennan suggested that:

'* * * even if the word 'repeal' or 'amendment' were deemed to make the saving clause prima facie applicable, that would not be the end of the matter. There would remain a substantial possibility that the public accommodations laws would be construed as falling within the clause's exception: 'unless the repealing * * * act shall expressly so provide." (p. 236, 84 S.Ct. p. 1820.)

The Court found support for this possibility in 'public policy considerations' ('[a] legislature that passes a public accommodations law making it unlawful to deny service on account of race probably did not desire that persons should still be prosecuted and punished for the 'crime' of seeking service from a place of public accommodations which denies it on account of race.') (p. 235, 84 S.Ct. p. 1820) and because while most criminal statutes speak in the future tense, and so apply only prospectively, the state enactment speaks in the present tense and provides that '[i]t is unlawful for an owner or operator * * *' (emphasis supplied) and this Court in Beard v. State, 74 Md. 130, 21 A. 700, found the use of the word 'shall' an indication that the statute was prospective and not intended to apply to past cases.

The appellants adopt and urge the suggestions and reasoning of Mr. Justice Brennan's opinion for the majority of the Supreme Court and add the argument that the passage of the Federal Civil Rights Act of 1964 (Public Law 88-352, 78 Stat. 241) on July 2, 1964, after the remand by the Supreme Court, overrides State law and abates the convictions presently under review.

The State takes the position that since the acts of trespass here involved were conducted without violence or outrage, by students with a bona fide belief that their conduct was constitutionally privileged, and the Legislature has made conduct like that of the appellants lawful and the resulting conduct, like that of the owner and operator of Hooper's restaurant, unlawful, 'no real interest of the State would likely suffer were these convictions vitiated,' but that the applicable and controlling State law inexorably requires affirmances, and that no federal law overrides this State law, so that no skirting or ingenious interpretation of the cases or the statute law can be availed to bring about reversal of the judgments of conviction.

There is much to be said for the position of the State that no harm to the general welfare of the State would be done and that a desirable public result would be achieved if the convictions were reversed, as the Supreme Court urges, but we, reading the Maryland law to have the ineluctable meaning that the State argues it has, feel constrained to avoid making bad law because the cases...