379 U.S.

306
85 S.Ct. 384
13 L.Ed.2d 300

Arthur HAMM, Jr., Petitioner,

v.
CITY OF ROCK HILL. Frank James LUPPER et al.,
Petitioners, v. STATE OF ARKANSAS.
Nos. 2, 5.
Argued Oct. 12, 1964.
Decided Dec. 14, 1964.
Rehearing Denied Jan. 25, 1965.

See 379 U.S. 995, 85 S.Ct. 698.

No. 2:
Jack Greenberg, New York City, for petitioner.
Constance B. Motley, New York City, for petitioners.
Daniel R. McLeod, Columbia, S.C., for respondent.
No. 5:
Jack L. Lessenberry, Little Rock, Ark., for respondent.
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, 84 S.Ct. 1902, 12 L.Ed.2d 1042 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.
21. The Facts.
3

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 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.

62. 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)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 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 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.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.

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.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:

10

'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
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.

11

On its face, this language prohibits prosecution of any person for seeking

11

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:

12

'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.

13

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, 172, 82 S.Ct.
807, 818, 7 L.Ed.2d 641 (1962), or a conflict between federal law and the
application of an otherwise valid state enactment, Hill v. Florida, 325 U.S. 538,
65 S.Ct. 1373, 89 L.Ed. 1782 (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.

14
15

Last Term, in Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822,
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.

16

The doctrine found its earliest expression in Chief Justice Marshall's opinion in

16

United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801):

17

'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 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.'

18

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, 3 L.Ed. 101
(1809); Maryland, for Use of Washington County v. Baltimore & O.R. Co., 3
How. 534, 552, 11 L.Ed. 714 (1845); United States v. Tynen, 11 Wall. 88, 95,
20 L.Ed. 153 (1871); United States v. Reisinger, 128 U.S. 398, 401, 9 S.Ct. 99,
32 L.Ed. 480 (1888); United States v. Chambers, 291 U.S. 217, 222-223, 54
S.Ct. 434, 435, 78 L.Ed. 763 (1934); Massey v. United States, 291 U.S. 608, 54
S.Ct. 532, 78 L.Ed. 1019 (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, 54 S.Ct. at 436. 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.

19

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 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.
20

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, 54 S.Ct. at 434 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.

21

We believe the fact that the convictions were under state statutes is in these
cases a distinction without a difference.4 We cannot believe the Congress, in
enacting such a far-reaching and comprehensive scheme, intended the Act to
operate less effectively then the run-ofthe-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.

22

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. 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.
23

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 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.

24

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.

25

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.

26

Judgments vacated and charges ordered dismissed.

27

Mr. Justice DOUGLAS, whom Mr. Justice GOLDBERG joins, concurring.

28

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. 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, 379 U.S. 291, 279, 85 S.Ct. 375, 369, 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 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.

29

Mr. Justice BLACK, dissenting.

30

The Civil Rights Act of 1964, validly, I think,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.

31

The record shows that the two petitioners in Lupper, No. 5, were part of a group
of persons who went to a department store tearoom, 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 covers2 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 out of the streets and restaurants and into the courts,
which Congress has granted power to provide an adequate and orderly judicial
remedy.
32

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, 318,
84 S.Ct. 1814, 12 L.Ed.2d 822 (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 anothernot, 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:

33

'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. * * *'

34

The purpose of this statute is plain on its faceit 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 States, 208
U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567; United States v. Reisinger, 128 U.S. 398,
9 S.Ct. 99, 32 L.Ed. 480; 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.3 In United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed.
763, and Massey v. United States, 291 U.S. 608, 54 S.Ct. 532, 78 L.Ed. 1019,
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 223-224, 54 S.Ct. at 435. 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.
35

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 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, 83
S.Ct. 1028, 10 L.Ed.2d 93.

36

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, 443, 5 L.Ed. 257,
decided in 1821, Chief Justice John Marshall speaking for the Court said:

37

'To interfere with the penal laws of a State, where they are not levelled 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.

38

'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.'

39

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 offhand 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 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.
40

Mr. Justice HARLAN, dissenting.

41

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.

42

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,1 see United
States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480. As was said in
United States v. Tynen, 11 Wall. 88, 95, 20 L.Ed. 153:

43

'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.'

44

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.

45

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,2 and the presumption of retroactive exculpation 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.3
46

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; Yeaton v. United States, 5 Cranch 281, 3 L.Ed. 101. And all of
the cases relied on by the Court are of that character.

47

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.

48

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 revoluntionary 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 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,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 pre-empt state law in such
instances.

49

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.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, 379 U.S. 241, 85 S.Ct. 348; Katzenbach v. McClung, 379 U.S.

294, 8k S.Ct. 377. There is, indeed, nothing to indicate that Congress even
adverted to such a question.
50

Finally, the Court's decision cannot be justified under the rule of avoidance of
constitutional questions, see Court's opinion, ante, p. 316. That rule does not
reach to the extent of enabling this Court to fabricate nonconstitutional grounds
of decision out of whole cloth.

51

"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, 401, 36 S.Ct. 658, 659, 60
L.Ed. 1061). But avoidance of a difficulty will not be pressed to the point of
disingenuous evasion.' Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53
S.Ct. 620, 622, 77 L.Ed. 1265 (Cardozo, J.).6

52

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, 318, 84 S.Ct. 1814,
1864, 12 L.Ed.2d 822, in which I joined.

53

Mr. Justice STEWART, dissenting.

54

The chief difference between these cases and Bell v. Maryland, 378 U.S. 226,
84 S.Ct. 1814, 12 L.Ed.2d 822 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.

55

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.

56

We found in Bell that the law of Maryland was 'open and arguable' on the issue

of abatement. The law of 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.
57

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.

58

Mr. Justice WHITE, dissenting.

59

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, 318, 84 S.Ct.
1814, 12 L.Ed.2d 822 (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.

60

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 commonlaw 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 seems to me to
point to the conclusion exactly opposite to that reached by the Court.

61

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 categorial
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.

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.
3. The Provisions of the Act.

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, 84 S.Ct. 1814, 12 L.Ed.2d 822; 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.

See my concurring opinion in Heart of Atlanta Motel, Inc. v. United States, 379
U.S., p. 268, 85 S.Ct., p. 363.

Sections 201-203, 78 Stat. 243-244, 42 U.S.C. 2000a to 2000a-2 (1964 ed.).

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. 314. There is no support for this statement in the
language of the statute, in its legislative history, or in subsequent decisions
under it.

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.

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, 84 S.Ct. 1814, 12
L.Ed.2d 822, 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.

See Cohens v. Virginia, 6 Wheat. 264, 443, 5 L.Ed. 257, quoted in my Brother
BLACK'S opinion, ante, p. 321.

Quoted in the Court's opinion, ante, pp. 310-311.

No attempt is made by the Court to justify the retroactive application of the

Civil Rights Act under the Fourteenth Amendment.

See also International Association of Machinists v. Street, 367 U.S. 740, 797,
81 S.Ct. 1784, 1814, 6 L.Ed.2d 1141 (Frankfurter, J., dissenting).