# Hamm v. City of Rock Hill/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
* Dissenting Opinions Black Harlan Stewart White
* Linked case(s):
* 236 Ark. 596 379 U.S. 306
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 [p308] 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 tearoom 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. [p309]

## 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) 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 tearoom, 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 [p310] 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. 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. 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 [p311] 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 [p312] state and federal law, Kesler v. Department of Safety, 369 U.S. 153, 172 (1962), or a conflict between 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, 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 [p313] 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, 283 (1809); Maryland, for Use of Washington County v. Baltimore & O.R. Co., 3 How. 534, 552 (1845); United States v. Tynen, 11 Wall. 88, 95 (1871); United States v. Reisinger, 128 U.S. 398, 401 (1888); United States v. Chambers, 291 U.S. 217, 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. 217, at 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 wher- [p314] ever 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 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. We cannot believe the Congress, in enacting such a far-reaching and comprehensive scheme, intended the Act to operate less effectively then the run-of- [p315] 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 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.
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 (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 pre-enactment 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 [p316] 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.
[p317] 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.
* ↑ 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 . . . ."
* ↑ In Lupper the State's brief says, "a remand of these cases would not reap any . . . benefits." At 13.
* ↑ 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, supra; others take the position that the Amendment creates no such substantive rights, see dissenting opinion in Bell v. Maryland, 378 U.S. 226; 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.
* ↑ 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.