Tolg v. Grimes, 21661.

• Citation: 355 F.2d 92
• Decision Date: 24 January 1966
• Docket Number: No. 21661.,21661.
• Parties: Tom Taylor TOLG, Appellant, v. T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellee. T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellant, v. Tom Taylor TOLG, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

355 F.2d 92 (1966)

Tom Taylor TOLG, Appellant, v. T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellee.

T. Ralph GRIMES, Sheriff of Fulton County, Georgia, Appellant, v. Tom Taylor TOLG, Appellee.

No. 21661.

United States Court of Appeals Fifth Circuit.

January 24, 1966.

Donald L. Hollowell, Atlanta, Ga., Jack Greenberg, New York City, James M. Nabrit, III, Derrick Bell, New York City, Howard Moore, Jr., Atlanta, Ga., Sheila Rush, New York City, of counsel, for Tolg.

Albert Sidney Johnson, Asst. Atty. Gen., J. Robert Sparks, Asst. Sol. Gen., Peyton S. Hawes, Jr., Asst. Atty. Gen., Atlanta, Ga., Eugene Cook, Atty. Gen., William T. Boyd, Sol. Gen. Atlanta Judicial Circuit, for Grimes.

Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges.

TUTTLE, Chief Judge:

This appeal presents the question whether the passage of the Civil Rights Act of 1964, given the retroactive effect that was given it by Hamm v. City of Rock Hill, South Carolina, 1964, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, required the invalidation by a Federal Court on petition for habeas corpus of a State Court conviction under an antitrespass statute, invoked by a proprietor for the purpose of preventing access to his restaurant by persons on account of race.

The appeal is from an order denying the petition of appellant for a writ of habeas corpus. United States ex rel. Tolg v. Grimes (No. Dist. of Ga.), 1964, 229 F.Supp. 289. The order was entered prior to the passage of the Civil Rights Act of 1964. However, in denying the writ, the District Court granted appellant a certificate of probable cause and admitted him to bail pending this appeal.

Appellant, who at the time of his arrest, was a 23 year old white graduate teaching assistant at Miami University, Oxford, Ohio, was arrested at Leb's Restaurant in Atlanta, Georgia, when he and thirteen other persons, including eleven Negroes, attempted to enter for lunch. He was one of the same group of persons whose activities resulted in the removal of state prosecutions to the Federal Court and which was discussed by us in Rachel v. State of Georgia, 5 Cir., 342 F.2d 336, cert. granted October 11, 1965, 382 U.S. 808, 86 S.Ct. 39, 15 L.Ed.2d 58. Appellant was indicted and tried upon the charge that he had violated Section 26-3005 of the Georgia Code (Ann.Supp.), Georgia Laws 1960, p. 142.¹

In every way open to him, Tolg attacked the constitutionality of the Georgia Statute, both on its face, and as applied to him and to persons of the Negro race with whom he was participating at the time of his arrest. He contended, that when applied to places of public accommodation, against persons who were denied access on account of race, the act of arrest and prosecution by the state authorities constituted a deprivation by the State of his rights under the Fourteenth Amendment to the Constitution. In making this contention he asserted a ground of relief which the United States Supreme Court pretermitted in arriving at its decision in Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822, but which was fully expounded and urged on the Court by three members.² It was a doctrine that was equally firmly repudiated by three other members of the Court.³

Appellant was convicted by a jury and sentenced by the trial court to serve twelve months of labor on the county public works and to serve six months in jail and to pay a fine of $1000.00. The sentence provided that if, after serving four months, appellant should certify to his intention to obey all of the laws of Georgia and of every other state wherein he might be a resident, the Court would reduce the sentence to the four months served.

Upon conviction and sentencing, Tolg filed a motion in arrest of judgment and a motion for a new trial, by which he again attacked the constitutionality of the statute as applied to him. He was released on bond in the amount of $5,000.00. In due time the motions were overruled, thus commencing a period of thirty days which, under the Georgia statute, was the time in which a bill of exceptions could be filed. It is not clear from the record the exact cause for the failure of counsel to file their bill of exceptions within the thirty day period, but it is clear that, as found by the trial court in the habeas corpus proceeding, such failure was not due to any wilful intent to bypass the appellate procedures in the State of Georgia. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Apparently counsel relied upon receiving a copy of the written order of the trial court which the judge's secretary, according to her best recollection, testified she had mailed but which, it was testified by counsel, they had not received. In any event, under the Georgia statutes this failure foreclosed any right of appeal to Georgia appellate courts.

On April 20, 1964, Tolg was committed to the custody of the Sheriff and he promptly filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Georgia, contending that he was being held in violation of his federally protected constitutional rights.

Appellant did not file a petition for habeas corpus in the state courts prior to the filing of his application in the United States District Court.

The appellee, the Sheriff of Fulton County, Georgia, in his response, took issue on the merits of appellant's contention touching on his asserted constitutional rights, and moved to dismiss the petition on the ground that appellant had not exhausted his state remedies before filing the petition in the United States court, as required by Title 28, Section 2254, U.S.C.A.⁴ The trial court overruled the motion to dismiss, finding that "the unusual circumstances of this case, including the present confinement of the petitioner by the respondent, constitutes such unusual circumstances as to authorize this Court to entertain the writ."

On the merits of the petition, the trial court found that the State statute was neither unconstitutional on its face nor in its application in the case of a restaurant owner who desired to maintain a racially segregated clientele. Nevertheless, the Court issued its certificate of probable cause and continued the appellant at large under $5,000 bond pending this appeal.

While the case has been pending in this Court, two occurrences of great significance have changed the picture as it was presented to the trial court at the time of the hearing. The first of these was the enactment into law by the United States Congress of the Civil Rights Act of 1964, 78 Stat. 241. The second is the decision of the United States Supreme Court in the case of Hamm v. City of Rock Hill, South Carolina, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, decided December 14, 1964. Stated briefly, Section 201 of the Civil Rights Act defines a restaurant such as was here in issue as a place of "public accommodation within the meaning of this title if its operations affect commerce."⁵

Section 203 of the Act prohibits any person from denying any person the right to patronize such a public accommodation.⁶ It also provides that "No person shall * * * punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 * * *."

In cases which were before it on appeal from State courts, the Supreme Court decided in Hamm v. City of Rock Hill, supra, that "the Civil Rights Act intervened before either of the judgments under attack was finalized. * * abatement must follow in these state prosecutions." The Court further said, "Rather than a retroactive intrusion into state criminal law this is but the application of a long-standing federal rule, namely, that since the Civil Rights Act substitutes a right for a crime any state statute, or its application, to the contrary must by virtue of the Supremacy Clause give way under the normal abatement rule covering pending convictions arising out of a pre-enactment activity. The great purpose of the Civil Rights legislation was to obliterate the effect of a distressing chapter of our history. This demands no less than the application of a normal rule of statutory construction to strike down pending convictions inconsistent with the purposes of the Act." 379 U.S. 306, 315, 85 S.Ct. 384, 391.

Thus, in addition to the original ground for attacking the conviction in the state court, appellant now urges the passage of the Federal Statute as giving him an even clearer right to relief. Relying on the fact that Tolg's sentence of imprisonment and fine have not been completed, (in point of fact it had just started at the time of the filing of this petition) the thrust of the appellant's new argument now is that the Supreme Court gave retroactive effect to the Civil Rights Act in the Hamm case because of a constitutional principle; that any further punishment for pre-enactment violations of state anti-trespass laws would be a violation of his constitutional rights as well as a violation of the precise terms of the statute itself. In support of this position the following language from the Supreme Court's opinion in the Hamm case is apposite:

"Far from finding a bar to the application of the rule where a state statute is involved, we find that our construction of the effect of the Civil Rights Act is more than statutory. It is required by the Supremacy Clause of the Constitution. See Kesler v. Department of Safety, 369 U.S. 153, 172 82 S.Ct. 807, 818, 7 L.Ed.2d 641 (1962); Hill v. State of Florida, 325 U.S. 538 65 S.Ct. 1373, 89 L.Ed. 1782 (1945). Future state prosecutions under the Act being unconstitutional and there being no saving clause in the Act itself, convictions for pre-enactment violations would be equally unconstitutional and abatement necessarily follows."

Although the trial court found the exceptional circumstances to exist that it considered "rendered state corrective process ineffective to protect the rights of the...