The petitioners, who are Negroes, were convicted for violations
of state trespass statutes for participating in "sit-ins" at lunch
counters of retail stores. It was conceded that the lunch counter
operations would probably come within the coverage of the Civil
Rights Act of 1964, which was passed subsequent to the convictions
and the affirmances thereof in the state courts.
Held:
1. The Act creates federal statutory rights which, under the
Supremacy Clause, must prevail over any conflicting state laws. Pp.
379 U. S.
310-312.
2. These convictions, being on direct review at the time the Act
made the conduct no longer unlawful, must abate. Pp.
379 U. S.
312-317.
(a) Had these been federal convictions, they would have abated,
Congress presumably having intended to avoid punishment no longer
furthering a legislative purpose, and the general federal saving
statute being applicable to a statute like this which substitutes a
right for what was previously criminal. Pp.
379 U. S.
312-314.
(b) Though these were state convictions, their abatement is
likewise required not only under the Supremacy Clause, and because
the pending convictions are contrary to the legislative purpose of
the Act, but also because abatement is a necessary part of every
statute which repeals criminal legislation. Pp.
379 U. S.
314-317.
241 S.C. 420,
128
S.E.2d 907; 236 Ark. 596, 367 S.W.2d 750, judgments vacated and
charges ordered dismissed.
Page 379 U. S. 307
MR. JUSTICE CLARK delivered the opinion of the Court.
These are "sit-in" cases that came here from the highest courts
of South Carolina and Arkansas, respectively. Each of those courts
affirmed convictions based upon state trespass statutes against
petitioners, who are Negroes, for participating in "sit-in"
demonstrations in the luncheon facilities of retail stores in their
respective States. We granted certiorari in each of the cases, 377
U.S. 988, 989, and consolidated them for argument. The petitioners
asserted both in the state courts and here the denial of rights,
privileges, and immunities secured by the Fourteenth Amendment; in
addition, they claim here that the Civil Rights Act of 1964, 78
Stat. 241, passed subsequent to their convictions and the
affirmances thereof in the state courts, abated these actions.
1.
The Facts.
In No. 2,
Hamm v. Rock Hill, the petitioner, and a
companion who is now deceased, entered McCrory's variety store at
Rock Hill, South Carolina. After making purchases in other parts of
the store, they proceeded to the lunch counter and sought service.
It was refused. The manager asked the petitioner and his associate
to leave, and, when they refused, he called the police. They were
prosecuted and convicted under § 16-388 of the S.C. Code of Laws,
making it an offense for anyone to enter a place of business after
having been warned not to do so
Page 379 U. S. 308
or to refuse to leave immediately after having entered therein.
Petitioner's companion died subsequently. The conviction of
petitioner was affirmed by both the Court of General Sessions and
the Supreme Court of South Carolina, 241 S.C. 420,
128 S.E.2d
907 (1962).
Lupper v. Arkansas, No. 5, involves a group of Negroes
who entered the department store of Gus Blass Company in Little
Rock. The group went to the mezzanine tea room of the store at the
busy luncheon hour, seated themselves, and requested service which
was refused. Within a few minutes, the group, including
petitioners, was advised that Blass reserved the right to refuse
service to anyone, and was not prepared to serve them at that time.
Upon being requested to leave, the petitioners refused. The police
officers who were summoned located petitioners on the first floor
of the store and arrested them. The officers' testimony that
petitioners admitted the whole affair was denied. The prosecutions
in the Little Rock Municipal Court resulted in convictions of
petitioners based upon § 41-1433, Ark.Stat.Ann. (1964 Repl. Vol.),
which prohibits a person from remaining on the premises of a
business establishment after having been requested to leave by the
owner or manager thereof. On appeal to the Pulaski Circuit Court, a
trial
de novo resulted in verdicts of guilty, and the
Arkansas Supreme Court affirmed, 236 Ark. 596, 367 S.W.2d 750
(1963),
sub nom. Briggs v. State.
We hold that the convictions must be vacated and the
prosecutions dismissed. The Civil Rights Act of 1964 forbids
discrimination in places of public accommodation, and removes
peaceful attempts to be served on an equal basis from the category
of punishable activities. Although the conduct in the present cases
occurred prior to enactment of the Act, the still-pending
convictions are abated by its passage.
Page 379 U. S. 309
2.
Application of Title II of the Civil Rights Act of
1964
to the Facts Here
We treat these cases as involving places of public accommodation
covered by the Civil Rights Act of 1964. Under that statute, a
place of public accommodation is defined to include one which
serves or offers to serve interstate travelers. Applying the rules
of §§ 201(b)(2), (c), [
Footnote
1] we find that each of them offers to serve interstate
travelers. In
Hamm, it is not denied that the lunch
counter was in a McCrory's 5-and-10-cent store, a large variety
store at Rock Hill belonging to a national chain, which offers to
sell thousands of items to the public; that it invites all members
of the public into its premises to do business, and offers to serve
all persons except at its lunch counter, which is restricted to
white persons only. There is no contention here that it does not
come within the Act. Likewise in
Lupper, the lunch counter
area, called a tea room, is located within and operated by the Gus
Blass Company's department store at Little Rock. It is a large
department store dealing extensively in interstate commerce. It
appears from the record that it also offered to serve all persons
coming into its store, but limited its lunch counter service to
white persons. On argument, it was frankly admitted that the
Page 379 U. S. 310
lunch counter operation "probably would" come under the Act.
Finally, neither respondent asks for a remand to determine the
facts as to coverage of the respective lunch counters. [
Footnote 2] In the light of such a
record and the legislative history indicating that Congress
intended to cover retail store lunch counters,
see 110
Cong.Rec. 1519-1520, we hold that the Act covers both the McCrory
and the Blass lunch counter operations.
3.
The Provisions of the Act.
Under the Civil Rights Act, petitioners' conduct could not be
the subject of trespass prosecutions, federal or state, if it had
occurred after the enactment of the statute.
Title II includes several sections, some of which are relevant
here, that create federal statutory rights. [
Footnote 3] The first is § 201(a), declaring
that
"[a]ll persons shall be entitled to the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation,"
which as we have found includes the establishments here
involved. Next, § 203 provides:
"No person shall (a) withhold, deny, or attempt to withhold or
deny, or deprive or attempt to deprive, any person of any right or
privilege secured by section 201 or 202, or (b) intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce
any person with the purpose of interfering with any right or
Page 379 U. S. 311
privilege secured by section 201 or 202, or (c)
punish or
attempt to punish any person for exercising or attempting to
exercise any right or privilege secured by section 201 or
202."
(Emphasis supplied.)
On its face, this language prohibits prosecution of any person
for seeking service in a covered establishment, because of his race
or color. It has been argued, however, that victims of
discrimination must make use of the exclusive statutory mechanisms
for the redress of grievances, and not resort to extralegal means.
Although we agree that the law generally condemns self-help, the
language of § 203(c) supports a conclusion that nonforcible
attempts to gain admittance to or remain in establishments covered
by the Act, are immunized from prosecution, for the statute speaks
of exercising or attempting to exercise a "right or privilege"
secured by its earlier provisions. The availability of the Act as a
defense against punishment is not limited solely to those who
pursue the statutory remedies. The legislative history specifically
notes that the Act would be a defense to criminal trespass, breach
of the peace, and similar prosecutions. Senator Humphrey, floor
manager of the bill in the Senate, said in explaining the bill:
"This plainly means that a defendant in a criminal trespass,
breach of the peace, or other similar case can assert the rights
created by 201 and 202, and that State Courts must entertain
defenses grounded upon these provisions. . . ."
110 Cong.Rec. 9767. In effect, the Act prohibits the application
of state laws in a way that would deprive any person of the rights
granted under the Act. The Supremacy Clause, Art. VI, cl. 2,
requires this result where "there is a clear collision" between
state and federal law,
Kesler v. Department of Safety,
369 U. S. 153,
369 U. S. 172
(1962), or a conflict between
Page 379 U. S. 312
federal law and the application of an otherwise valid state
enactment,
Hill v. Florida, 325 U.
S. 538 (1945). There can be no question that this was
the intended result here in light of § 203(c). The present
convictions and the command of the Civil Rights Act of 1964 are
clearly in direct conflict. The only remaining question is the
effect of the Act on judgments rendered, but not finalized, before
its passage.
4.
Effect of the Act upon the Prosecutions.
Last Term, in
Bell v. Maryland, 378 U.
S. 226, we noted the existence of a body of federal and
state law to the effect that convictions on direct review at the
time the conduct in question is rendered no longer unlawful by
statute, must abate. We consider first the effect the Civil Rights
Act would have on petitioners' convictions if they had been federal
convictions, and then the import of the fact that these are state,
and not federal, convictions. We think it is clear that the
convictions, if federal, would abate.
The doctrine found its earliest expression in Chief Justice
Marshall's opinion in
United States v. Schooner
Peggy, 1 Cranch 103,
5
U. S. 110 (1801):
"But if, subsequent to the judgment and before the decision of
the appellate court, a law intervenes and positively changes the
rule which governs, the law must be obeyed or its obligation
denied. If the law be constitutional . . . , I know of no court
which can contest its obligation. It is true that, in mere private
cases between individuals, a court will and ought to struggle hard
against a construction which will, by a retrospective operation,
affect the rights of parties, but in great national concerns . . .
, [the law] ought always to receive a construction conforming to
its manifest import. . . . In such a case, the court must decide
according to existing laws, and if it
Page 379 U. S. 313
be necessary to set aside a judgment, rightful when rendered,
but which cannot be affirmed but in violation of law, the judgment
must be set aside."
Although the decision in that case arguably rested on the
premise that appeals in admiralty were trials
de novo, and
that prize litigation applied the law of the time of trial,
See Yeaton v. United
States, 5 Cranch 281,
9 U. S. 283
(1809);
Maryland v. Baltimore & O.
R. Co., 3 How. 534,
44 U. S. 552
(1845);
United States v.
Tynen, 11 Wall. 88,
78 U. S. 95
(1871);
United States v. Reisinger, 128 U.
S. 398,
128 U. S. 401
(1888);
United States v. Chambers, 291 U.
S. 217,
291 U. S.
222-223 (1934);
Massey v. United States,
291 U. S. 608
(1934), the later cases applied the rule in quite different
contexts,
see United States v. Tynen, supra; United States v.
Reisinger, supra. The reason for the rule was stated by Chief
Justice Hughes in
United States v. Chambers:
"Prosecution for crimes is but an application or enforcement of
the law, and, if the prosecution continues, the law must continue
to vivify it."
291 U. S. 291 U.S.
217 at
291 U. S. 226.
Although Chambers specifically left open the question of the effect
of its rule on cases where final judgment was rendered prior to
ratification of the Twenty-first Amendment and petition for
certiorari sought thereafter, such an extension of the rule was
taken for granted in the per curiam decision in
Massey v.
United States, supra, handed down shortly after
Chambers.
It is apparent that the rule exemplified by
Chambers
does not depend on the imputation of a specific intention to
Congress in any particular statute. None of the cases cited drew on
any reference to the problem in the legislative history or the
language of the statute. Rather, the principle takes the more
general form of imputing to Congress an intention to avoid
inflicting punishment at a time when it can no longer further any
legislative purpose, and would be unnecessarily vindictive. This
general principle expressed in the rule is to be read wherever
Page 379 U. S. 314
applicable as part of the background against which Congress
acts. Thus, we deem it irrelevant that Congress made no allusion to
the problem in enacting the Civil Rights Act.
Nor do we believe that the provisions of the federal saving
statute, 61 Stat. 635, 1 U.S.C. § 109 (1958 ed.), would nullify
abatement of a federal conviction. In
Chambers, a case
where the cause for punishment was removed by a repeal of the
constitutional basis for the punitive statute, the Court was quite
certain as to this.
See 291 U.S. at
291 U. S. 224
and n. 2, involving the identical statute. The federal saving
statute was originally enacted in 1871, 16 Stat. 432. It was meant
to obviate mere technical abatement such as that illustrated by the
application of the rule in
Tynen, decided in 1871. There,
a substitution of a new statute with a greater schedule of
penalties was held to abate the previous prosecution. In contrast,
the Civil Rights Act works no such technical abatement. It
substitutes a right for a crime. So drastic a change is well beyond
the narrow language of amendment and repeal. It is clear therefore
that, if the convictions were under a federal statute, they would
be abated.
We believe the fact that the convictions were under state
statutes is, in these cases, a distinction without a difference.
[
Footnote 4] We cannot believe
the Congress, in enacting such a far-reaching and comprehensive
scheme, intended the Act to operate less effectively than the "run
of
Page 379 U. S. 315
the mill" repealer. Since the provisions of the Act would abate
all federal prosecutions, it follows that the same rule must
prevail under the Supremacy Clause, which requires that a contrary
state practice or state statute must give way. Here, the Act
intervened before either of the judgments under attack was
finalized. Just as in federal cases, abatement must follow in these
state prosecutions. Rather than a retroactive intrusion into state
criminal law, this is but the application of a longstanding 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
preenactment 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.
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,
369 U. S. 172
(1962);
Hill v. Florida, 325 U. S. 538
(1945). Future state prosecutions under the Act being
unconstitutional, and there being no saving clause in the Act
itself, convictions for preenactment violations would be equally
unconstitutional, and abatement necessarily follows.
Nor do we find persuasive reasons for imputing to the Congress
an intent to insulate such prosecutions. As we have said, Congress,
as well as the two Presidents who recommended the legislation,
clearly intended to eradicate an unhappy chapter in our history.
The peaceful conduct for which petitioners were prosecuted was on
behalf
Page 379 U. S. 316
of a principle since embodied in the law of the land. The
convictions were based on the theory that the rights of a property
owner had been violated. However, the supposed right to
discriminate on the basis of race, at least in covered
establishments, was nullified by the statute. Under such
circumstances, the actionable nature of the acts in question must
be viewed in the light of the statute and its legislative
purpose.
We find yet another reason for applying the
Chambers
rule of construction. In our view, Congress clearly had the power
to extend immunity to pending prosecutions. Some might say that to
permit these convictions to stand would have no effect on
interstate commerce, which we have held justified the adoption of
the Act. But, even if this be true, the principle of abatement is
so firmly imbedded in our jurisprudence as to be a necessary and
proper part of every statute working a repealer of criminal
legislation. Where Congress sets out to regulate a situation within
its power, the Constitution affords it a wide choice of remedies.
This being true, the only question remaining is whether Congress
exercised its power in the Act to abate the prosecutions here. If
we held that it did not, we would then have to pass on the
constitutional question of whether the Fourteenth Amendment,
without the benefit of the Civil Rights Act, operates of its own
force to bar criminal trespass convictions where, as here, they are
used to enforce a pattern of racial discrimination. As we have
noted, some of the Justices joining this opinion believe that the
Fourteenth Amendment does so operate; others are of the contrary
opinion. Since this point is not free from doubt, and since as we
have found Congress has ample power to extend the statute to
pending convictions, we avoid that question by favoring an
interpretation of the statute which renders a constitutional
decision unnecessary.
Page 379 U. S. 317
In short, now that Congress has exercised its constitutional
power in enacting the Civil Rights Act of 1964 and declared that
the public policy of our country is to prohibit discrimination in
public accommodations as therein defined, there is no public
interest to be served in the further prosecution of the
petitioners. And, in accordance with the long established rule of
our cases, they must be abated, and the judgment in each is
therefore vacated, and the charges are ordered dismissed.
It is so ordered.
* Together with No. 5, @Lupper et al. v. Arkansas, on certiorari
to the Supreme Court of Arkansas.
[
Footnote 1]
Section 201:
"(b) Each of the following establishments which serves the
public is a place of public accommodation within the meaning of
this title if its operations affect commerce . . ."
"
* * * *"
"(2) any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, or other facility principally engaged in selling food for
consumption on the premises, including, but not limited to, any
such facility located on the premises of any retail establishment .
. ."
"
* * * *"
"(c) The operations of an establishment affect commerce within
the meaning of this title if . . . it serves or offers to serve
interstate travelers. . . ."
[
Footnote 2]
In
Lupper, the State's brief says, "a remand of these
cases would not reap any . . . benefits." At 13.
3. The Provisions of the Act.
[
Footnote 3]
Some of us believe that the substantive rights granted by the
Act here,
i.e., freedom from discrimination in places of
public accommodation, are also included in the guarantees of the
Fourteenth Amendment,
see concurring opinions in
Bell
v. Maryland, 378 U. S. 226;
others take the position that the Amendment creates no such
substantive rights,
see dissenting opinion in
Bell v.
Maryland,supra. No such question is involved here, and we do
not pass upon it in any manner. We deal only with the statutory
rights created in the Act.
[
Footnote 4]
In
Bell v. Maryland, supra, we dealt with the problem
arising when a state enactment intervened prior to the finalizing
of state criminal trespass convictions. Because we were dealing
with the effect of a state statute on a state conviction prior to
the Act's passage, we felt that the state courts should be allowed
to pass on the question. Here we have an intervening federal
statute, and, in attempting to judge its effect on a state
conviction, we are faced with a federal, not a state, question.
Because of this distinction, we do not feel that remand is required
or desirable.
MR. JUSTICE DOUGLAS, whom MR. JUSTICE GOLDBERG joins,
concurring.
Some of my Brethren raise constitutional doubts about the power
of Congress to nullify the convictions of sit-in demonstrators for
violation of state trespass laws prior to the passage of the Civil
Rights Act of 1964. My Brother HARLAN observes that it is difficult
to see, in the absence of any evidence in the legislative record of
the Act, how "giving effect to past state trespass convictions
would result in placing any burden on present interstate commerce,"
post, p.
379 U. S. 325.
I merely note here that, in joining the opinion of the Court, I am
faced with no such difficulty. That is because, as my Brother
GOLDBERG and I said in our respective concurring opinions in
Heart of Atlanta Motel, Inc. v. United States,ante, pp.
379 U. S. 291,
379 U. S. 279,
Congress has, in passing this Act, not merely sought to remove
burdens from interstate commerce; it has also sought to protect and
enforce the Fourteenth Amendment right to be free of discriminatory
treatment, based on race, in places of public accommodation. It is
certainly not difficult to see how Congress could appropriately
conclude that all state interference with the exercise of this
right should come to a halt on the passage of the Act, that the
States should not be permitted to insist on punishing one whose
only "crime" was assertion of a constitutional
Page 379 U. S. 318
right, albeit prior to the enactment of the present legislation,
and that this Court should not put its imprimatur on such state
prosecutions, whenever they arose.
MR. JUSTICE BLACK, dissenting.
The Civil Rights Act of 1964, validly, I think, [
Footnote 2/1] made it unlawful for certain
restaurants thereafter to refuse to serve food to colored people
because of their color. The Court now interprets the Act as a
command making it unlawful for the States to prosecute and convict
"sit-in" demonstrators who had violated valid state trespass laws
prior to passage of the federal Act. The idea that Congress has
power to accomplish such a result has no precedent, so far as I
know, in the nearly 200 years that Congress has been in
existence.
The record shows that the two petitioners in
Lupper,
No. 5, were part of a group of persons who went to a department
store tea room, seated themselves at tables and at the counter as
part of a "sit-in" demonstration, and refused to leave when asked
to do so. The Court says that this conduct "could not be the
subject of trespass prosecutions, federal or state, if it had
occurred after the enactment of the statute." I do not understand
from what the Court says that it interprets those provisions of the
Civil Rights Act which give a right to be served without
discrimination in an establishment which the Act covers [
Footnote 2/2]as also authorizing persons
who are unlawfully refused service a "right" to take the law into
their own hands by sitting down and occupying the premises for as
long as they choose to stay. I think one of the chief purposes of
the 1964 Civil Rights Act was to take such disputes
Page 379 U. S. 319
out of the streets and restaurants and into the courts, which
Congress has granted power to provide an adequate and orderly
judicial remedy.
Even assuming, however, that the Civil Rights Act was intended
to let people who enter restaurants take the law into their own
hands by forcibly remaining when service is refused them, this
would be no basis for holding that Congress also meant to compel
States to abate convictions like these for lawless conduct
occurring before the Act was passed.
See Bell v. Maryland,
378 U. S. 226,
378 U. S. 318
(dissenting opinion). The judge-made "common law rule" of
construction on which the Court relies has been applied heretofore
only where there was a repeal of one statute by another -- not, as
my Brother HARLAN points out, where as here a later law passed by
Congress places certain restrictions on the operation of the still
valid law of a State. But, even if the old common law rule of
construction, taken alone, would otherwise have abated these
convictions, Congress, nearly a century ago, passed a "saving"
statute, 1 U.S.C. § 109 (1958 ed.), to keep courts from imputing to
it an intent to abate cases retroactively, unless such an intent
was expressly stated in the law it passed. That statute says:
"The repeal of any statute shall not have the effect to release
or extinguish any penalty, forfeiture, or liability incurred under
such statute unless the repealing Act shall so expressly provide,
and such statute shall be treated as still remaining in force for
the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability. . . ."
The purpose of this statute is plain on its face -- it was to
prevent courts from imputing to Congress an intent which Congress
never entertained. This was broad, remedial legislation,
See Great Northern R. Co. v.
United
Page 379 U. S. 320
States, 208 U. S. 452;
United States v. Reisinger, 128 U.
S. 398;
United States v. Ulrici, 3 Dillon 532,
28 Fed.Cas. 328 (No. 16,594) (C.C.E.D.Mo.) (opinion of Mr. Justice
Miller on circuit), and, by any fair reading, it is broad enough to
wipe out any and every application of the common law rule which it
was designed to do away with, unless judge-made rules of
construction have some sort of superiority over congressionally
enacted statutes. [
Footnote 2/3] In
United States v. Chambers, 291 U.
S. 217, and
Massey v. United States,
291 U. S. 608, the
only cases which the Court cites as authority for disregarding the
federal saving statute, this Court made clear that the saving
statute was not involved in any way, since the abatement there was
by force of the Twenty-first Amendment, and, of course, an
amendment to the Constitution supersedes an Act of Congress.
See 291 U.S. at
291 U. S.
223-224. By today's discovery of a "long established
rule of our cases," the Court has now put back on Congress the
burden of spelling out expressly, statute by statute, in laws
passed hereafter that it does not want to upset convictions for
past crimes, a burden which Congress renounced nearly 100 years
ago, and which it did not know it had when it passed the 1964
Act.
Furthermore, I have grave doubt about the power of Congress,
acting under the Commerce Clause and the Necessary and Proper
Clause, to take the unprecedented step of abating these past state
convictions. Yet the
Page 379 U. S. 321
Court judicially declares that "there is no public interest to
be served" in upholding the convictions of these trespassers, a
conclusion of policy which I had thought was only for legislative
bodies to decide.
See Ferguson v. Skrupa, 372 U.
S. 726.
In the early days of this country, this Court did not so lightly
intrude upon the criminal laws of a State. In
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S. 443,
decided in 1821, Chief Justice John Marshall speaking for the Court
said:
"To interfere with the penal laws of a State, where they are not
leveled against the legitimate powers of the Union, but have for
their sole object the internal government of the country, is a very
serious measure which Congress cannot be supposed to adopt lightly,
or inconsiderately. The motives for it must be serious and weighty.
It would be taken deliberately, and the intention would be clearly
and unequivocally expressed."
"An act, such as that under consideration ought not, we think,
to be so construed as to imply this intention unless its provisions
were such as to render the construction inevitable."
Nothing in the language or history of the 1964 Act makes the
Court's reading into it of a purpose to interfere with state laws
"inevitable," or even supportable, nor in any way justifies the
Court's off-hand assertion that it is carrying out the "legislative
purpose." For I do not find one paragraph, one sentence, one
clause, or one word in the 1964 Act on which the most strained
efforts of the most fertile imagination could support such a
conclusion. And, in what is perhaps the most extensive and careful
legislative history ever compiled, dealing with one of the most
thoroughly discussed and debated bills ever passed by Congress, a
history including millions and millions of words written on tens of
thousands of pages contained in
Page 379 U. S. 322
volumes weighing well over half a hundred pounds, in which every
conceivable aspect and application of the 1964 Act were discussed
ad infinitum, not even once did a single sponsor,
proponent. or opponent of the Act intimate a hope or express a fear
that the Act was intended to have the effect which the Court gives
it today.
[
Footnote 2/1]
See my concurring opinion in
Heart of Atlanta
Motel, Inc. v. United States, ante, p.
379 U. S.
268.
[
Footnote 2/2]
Sections 201-203, 78 Stat. 243-244, 42 U.S.C. §§ 2000a to
2000a-2 (1964 ed.).
[
Footnote 2/3]
The Court says that:
"The federal saving statute was originally enacted in 1871, 16
Stat. 432. It was meant to obviate mere technical abatement such as
that illustrated by the application of the rule in
Tynen,
decided in 1871. There, a substitution of a new statute with a
greater schedule of penalties was held to abate the previous
prosecution."
Ante, p.
379 U. S. 314.
There is no support for this statement in the language of the
statute, in its legislative history, or in subsequent decisions
under it.
MR. JUSTICE HARLAN, dissenting.
The Court holds that these state trespass convictions, occurring
before the passage of the Civil Rights Act of 1964, must be set
aside by virtue of the federal doctrine of criminal abatement. This
remarkable conclusion finds no support in reason or authority.
The common law rule of abatement is basically a canon of
construction conceived by the courts as a yardstick for determining
whether a legislature which has enacted a statute making conduct
noncriminal which was proscribed by an earlier criminal statute
also intended to put an end to nonfinal convictions under the
former legislation. In effect, the doctrine of abatement
establishes a presumption that such was the purpose of the
legislature in the absence of a demonstrated contrary intent, as
evidenced, for example, in the case of congressional enactments by
the federal saving statute, [
Footnote
3/1]
See United
States
Page 379 U. S. 323
v. Reisinger, 128 U. S. 398. As
was said in
United States v.
Tynen, 11 Wall. 88,
78 U. S. 95:
"By the repeal of the 13th section of the act of 1813, all
criminal proceedings taken under it fell. There can be no legal
conviction, nor any valid judgment pronounced upon conviction,
unless the law creating the offence be at the time in existence. By
the repeal, the legislative will is expressed that no further
proceedings be had under the act repealed."
The doctrine has its origins in the English common law,
see,
e.g., Rex v. Cator, 4 Burr. 2026, 98 Eng.Rep. 56;
King v.
Davis, 1 Leach Crown Cases 306 (3d ed), 168 Eng.Rep. 238, and
has been embraced in American state and federal jurisprudence.
The abatement doctrine serves a useful and appropriate purpose
in a framework of the legislation of a single political
sovereignty. The doctrine strikes a jarring note, however, when it
is applied so as to affect the legislation of a different
sovereignty, as the federal doctrine is now used to abate these
state convictions. Our federal system tolerates wide differences
between state and federal legislative policies, [
Footnote 3/2] and the presumption of retroactive
exculpation
Page 379 U. S. 324
that readily attaches to a federal criminal statute which
unreservedly repeals earlier federal legislation cannot, in my
opinion, be automatically thought to embrace exoneration from
earlier wrongdoing under a state statute. [
Footnote 3/3]
I know of no case which suggests that the doctrine of abatement
can be applied to affect the existing legislation of another
jurisdiction. Until today the doctrine has always been applied only
with respect to legislation of the same sovereignty,
e.g., Rex
v. Cator, supra; King v. Davis, supra; United States v. Tynen,
supra; 9 U. S. United
States, 5 Cranch 281. And all of the cases relied on by the
Court are of that character.
The Supremacy Clause cannot serve as a vehicle for extending the
federal doctrine of abatement beyond proper bounds. That provision
of the Constitution would come into play only if it appeared from
the Civil Rights Act itself or from its legislative history and
setting that Congress' purpose was to displace past, as well as
prospective, applications of state laws touching upon the matters
with which the federal statute is concerned. For me, this would
have to be made to appear in unmistakable terms, for such a purpose
would represent an exercise of federal legislative power wholly
unprecedented in our history.
I entirely agree with my Brother BLACK's poignant observations
on this score; there is not a scintilla of evidence which remotely
suggests that Congress had any such revolutionary course in mind.
Section 1104 of the Civil Rights Act indeed provides that nothing
in the statute is to be
"construed as invalidating any provision of State law unless . .
. inconsistent with any of the purposes
Page 379 U. S. 325
of this Act, or any provision thereof."
Whether or not state trespass laws as applied to "racial
trespasses" occurring after the effective date of the Civil Rights
Act are to be deemed inconsistent with the provisions of § 203(c)
of the Act, [
Footnote 3/4] a
question which I find unnecessary to decide at this juncture, there
is certainly no such plain inconsistency between § 203(c) and state
trespass laws as applied in those situations arising before the
passage of the Civil Rights Act as would justify this Court's
attributing to Congress a purpose to preempt state law in such
instances.
Moreover, the contrary conclusion would confront us with
constitutional questions of the gravest import, for the legislative
record is barren of any evidence showing that giving effect to
past state trespass convictions would result in placing
any burden on
present interstate commerce. [
Footnote 3/5] Such evidence, at the very
least, would be a prerequisite to the validity of any purported
exercise of the Commerce power in this regard.
See Heart of
Atlanta Motel, Inc. v. United States, ante, p.
379 U. S. 241;
Katzenbach v. McClung, 379 U. S. 294.
There is, indeed, nothing to indicate that Congress even adverted
to such a question.
Finally, the Court's decision cannot be justified under the rule
of avoidance of constitutional questions,
see Court's
opinion,
ante, p.
379 U. S. 316. That rule does not reach to the extent of
enabling this Court to fabricate nonconstitutional grounds of
decision out of whole cloth.
"'A statute must be construed, if fairly possible, so as to
avoid not only the conclusion that it is unconstitutional, but also
grave doubts upon that score.'
United States v. Jin Fuey Moy,
supra [
241 U.S.
394,
241 U. S. 401]. But
avoidance of a difficulty will not
Page 379 U. S. 326
be pressed to the point of disingenuous evasion."
Moore Ice Cream Co. v. Rose, 289 U.
S. 373,
289 U. S. 379
(Cardozo, J.). [
Footnote 3/6]
Concluding that these trespass convictions are not abated, I
would affirm the judgments in both of these cases for the reasons
given by MR. JUSTICE Black in his dissenting opinion in
Bell v.
Maryland, 378 U. S. 226,
378 U. S. 318,
in which I joined.
[
Footnote 3/1]
1 U.S.C. § 109 (1958 ed.):
"The repeal of any statute shall not have the effect to release
or extinguish any penalty, forfeiture, or liability incurred under
such statute unless the repealing Act shall so expressly provide,
and such statute shall be treated as still remaining in force for
the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability. The
expiration of a temporary statute shall not have the effect to
release or extinguish any penalty, forfeiture, or liability
incurred under such statute unless the temporary statute shall so
expressly provide, and such statute shall be treated as still
remaining in force for the purpose of sustaining any proper action
or prosecution for the enforcement of such penalty, forfeiture, or
liability."
I accept the Court's conclusion that this section has no
application here, but only because there has been no repeal or
amendment of an existing federal statute.
[
Footnote 3/2]
Arkansas, for example, has a saving clause, Ark.Stat.Ann. §§
1-103, 1-104, similar to 1 U.S.C. § 109, which expresses a state
policy to save the conviction of Lupper.
See Mack v.
Connor, 220 Ga. 450,
139 S.E.2d 286
(Ga.Sup.Ct.1964).
Cf. Bell v. Maryland, 378 U.
S. 226,
conviction affirmed on remand, 236 Md.
356, 204 A.2d 54;
rehearing granted and argument deferred
"awaiting the outcome of similar issues now pending before the
United States Supreme Court," quite obviously referring to these
cases.
[
Footnote 3/3]
See Cohens v.
Virginia, 6 Wheat. 264,
19 U. S. 443,
quoted in my Brother BLACK's opinion,
ante, p.
379 U. S.
321.
[
Footnote 3/4]
Quoted in the Court's opinion,
ante, pp.
379 U. S.
310-311.
[
Footnote 3/5]
No attempt is made by the Court to justify the retroactive
application of the Civil Rights Act under the Fourteenth
Amendment.
[
Footnote 3/6]
See also International Association of Machinists v.
Street, 367 U. S. 740,
367 U. S. 797
(Frankfurter, J., dissenting).
MR. JUSTICE STEWART, dissenting.
The chief difference between these cases and
Bell v.
Maryland, 378 U. S. 226, is
that here federal, rather than state, legislation has intervened
while the convictions were under review. As I understand the
Court's opinion, it first asserts that, if these had been federal
convictions, the passage of the Civil Rights Act would have abated
them under principles of federal decisional law. It then proceeds
to apply those asserted principles to these state convictions
through the Supremacy Clause of the Constitution. If I thought that
Congress had provided that such nonfinal state convictions are to
be abated, I would find no constitutional difficulty in joining the
Court's disposition of these cases under the Supremacy Clause. But
Congress was silent on the subject, and I am unable to subscribe to
the Court's reasoning.
In
Bell v. Maryland, we said that a State's abatement
policy was for the State to determine. Arkansas and South Carolina
might hold that this supervening federal legislation provides a
compelling reason to abate these proceedings, but I can find
nothing in the legislation or in the Constitution which requires
these States to do so.
We found in
Bell that the law of Maryland was "open and
arguable" on the issue of abatement. The law of
Page 379 U. S. 327
Arkansas and South Carolina is no clearer. Like Maryland,
Arkansas has a saving statute similar to the federal counterpart.
And like Maryland, South Carolina apparently has a policy favoring
abatement when state criminal statutes are repealed while
prosecutions are pending.
See State v. Spencer, 177 S.C.
346, 181 S.E. 217.
For the reasons stated in the Court's opinion in
Bell v.
Maryland, I would vacate the judgments and remand the cases to
the state courts for reconsideration in the light of the
supervening federal legislation.
MR. JUSTICE WHITE, dissenting.
Absent the Civil Rights Act, there was, in my view, no
constitutional infirmity in the state court convictions.
Bell
v. Maryland, 378 U. S. 226,
378 U. S. 318
(dissenting opinion of MR. JUSTICE BLACK). And if Congress had the
power to abate these convictions, I am confident it had no intent
of exercising it by passing the new law. There is nothing but
silence to indicate that Congress meant to void outstanding
judgments of state courts. I would not, for several reasons, read
so much into nothing as the Court attempts to do.
It is wrong to impute to the silence of Congress an unusual and
unprecedented step which, at the very least, poses constitutional
problems of some import. By the time the Act was passed,
Bell
v. Maryland, supra, had forcefully raised the whole question
of the status of previous convictions after a change in the law. I
cannot believe, with that case on the books, remitting the matter
to the state courts as it did, Congress would have left unstated
its intention to erase all state court trespass judgments then on
appeal in the courts. Moreover, the common law presumption of
abatement was reversed by 1 U.S.C. § 109 (1958 ed.), which stands
as the most relevant indicator of congressional intention in
situations like this. Congressional silence in these
circumstances
Page 379 U. S. 328
seems to me to point to the conclusion exactly opposite to that
reached by the Court.
Finally, had Congress intended to ratify massive disobedience to
the law, so often attended by violence, I feel sure it would have
said so in unmistakable language. The truth is that it is only
judicial rhetoric to blame this result upon Congress. Given a
discernable congressional decision, I would be happy to follow it,
as it is our task to do, absent constitutional limitations. But,
without it, we have another case. Whether persons or groups should
engage in nonviolent disobedience to laws with which they disagree
perhaps defies any categorical answer for the guidance of every
individual in every circumstance. But whether a court should give
it wholesale sanction is a wholly different question which calls
for only one answer.