Drews v. State

• Decision Date: 18 January 1961
• Docket Number: No. 113,113
• Citation: 167 A.2d 341,224 Md. 186
• Parties: Dale H. DREWS et al. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 186

224 Md. 186

167 A.2d 341

Dale H. DREWS et al. v. STATE of Maryland.

No. 113.

Court of Appeals of Maryland.

Jan. 18, 1961.

Francis D. Murnaghan, Jr., Baltimore (Robert B. Watts, Robert J. Martineau, Venable, Baetjer & Howard, Baltimore, on the brief), for appellants.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Frank H. Newell, 3rd, State's Atty., for Baltimore County, Towson, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The four appellants were convicted by the court sitting without a jury of violating Code (1957), Art. 27, Sec. 123, by 'acting in a disorderly manner to the disturbance of the public peace' in a 'place of public resort or amusement.' Two of appellants are white men, one is a white woman, and the other a Negress. Accompanied by a Negro who was not tried, they had gone as a group to Gwynn Oak Amusement Park in Baltimore County, which as a business policy does not admit Negroes, and were arrested when they refused to leave after being asked to do so.

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

There is no direct statement in the record that the Park is a place of public resort or amusement but we think the evidence clearly permitted the finding the trial court made that it is. There was testimony which showed, or permitted the inference, that the Park is owned by a private corporation, that it has been in operation each summer for many years, that among its attractions are a miniature golf course and a cafeteria, that appellants' conduct occurred on 'All Nations Day' which usually attracts a large crowd, that on that day the Park was so crowded there was but elbow room to walk, and that the Park's policy was to welcome everyone but Negroes. The trial court properly could have concluded the Park is a place resorted to by the general public for amusement. Cf. Iozzi v. State, Md., 166 A.2d 257.

A lawmaking body is presumed by the Courts to have used words in a statute to convey the meaning ordinarily attributed to them. In recognition of this plain precept the Courts, in construing zoning, licensing, tax and anti-discrimination statutes, have held that the term place of public resort or amusement included dance halls, swimming pools, bowling alleys, miniature golf courses, roller skating rinks and a dancing pavilion in an amusement park (because it was an integral part of the amusement park), saying that amusement may be derived from participation as well as observation. Amos v. Prom, Inc., D.C., 117 F.Supp. 615; Askew v. Parker, 151 Cal.App.2d 759, 312 P.2d 342; Jaffarian v. Building Com'r, 275 Mass. 267, 175 N.E. 641; Jones v. Broadway Roller Rink Co., 136 Wis. 595, 118 N.W. 170, 171, 19 L.R.A.,N.S., 907; Johnson v. Auburn & Syracuse Electric R. Co., 222 N.Y. 443, 119 N.E. 72, L.R.A.1918F, 824. Section 123 of Art. 27 proscribes conduct which disturbs the public peace at a place where a number of people are likely to congregate, whether it is on governmental property or on property privately owned. This is made clear by the prohibition of offensive conduct not only on any public street or highway but in any store during business hours, and in any elevator, lobby or corridor of an office building or apartment house having more than three dwelling units, as well as in any place of public worship or any place of public resort or amusement. We read the statute as including an amusement park in the category of a place of public resort or amusement.

We find no substance in the somewhat bootstrap argument that the regular exclusion of Negroes from the Park kept it from being within the ambit of the statute. Early in the common law the duty to serve the public without discrimination apparently was imposed on many callings. Later this duty was confined to exceptional callings as to which an urgent public need called for its continuance, such as innkeepers and common carriers. Operators of most enterprises, including places of amusement, did not and do not have any such common law obligation, and in the absence of a statute forbidding discrimination, can pick and choose their patrons for any reason they decide upon, including the color of their skin. Early and recent authorities on the point are collected, and exhaustively discussed, in the opinion of the Supreme Court of New Jersey in Garifine v. Monmouth Park Jockey Club, 29 N.J. 47, 148 A.2d 1. See also Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A.2d 335; Good Citizens Community Protective Ass'n v. Board of Liquor License Commissioners, 217 Md. 129, 131, 141 A.2d 744; Slack v. Atlantic White Tower System, Inc., D.C., 181 F.Supp. 124; Williams v. Howard Johnson's Restaurant, 4 Cir., 268 F.2d 845.

It has been noted in the cases that places of public accommodation, resort or amusement properly can exclude would-be patrons on the grounds of improper dress or uncleanliness, Amos v. Prom, Inc., supra (at page 629 of 117 F.S upp.); because they are under a certain age, are men or are women, or are unescorted women, Collister v. Hayman, 183 N.Y. 250, 76 N.E. 20; or because for some other reason they are undesirables in the eyes of the establishment. Greenfeld v. Maryland Jockey Club; Good Citizens Community Protective Ass'n v. Board of Liquor License Commissioners; Slack v. Atlantic White Tower System, Inc., all supra. See 86 C.J.S. Theaters and Shows §§ 31 and 34 to 36. We have found no decision holding that a policy of excluding certain limited kinds or classes of people prevents an enterprise from being a place of public resort or amusement, and can see no sound reason why it should.

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

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

The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as...