These are six consolidated appeals by Negroes convicted of remaining on the premises of the City Pharmacy in Talladega after being requested by one of the owners to leave. Code 1940, T. 14, § 426.
The sole question—but not briefed by the appellants—is whether or not the prosecution of the defendants was private or State action. By "State action" we include such pervasive devices as have been found to bear on or discommode private business so as to contribute to segregation through organs of the State, including its creatures. See Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323, and Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771.
The six appellants are young Negroes, three of each sex, who, on April 10, 1962, entered the City Pharmacy in Talladega and seated themselves at the soda fountain. They asked Orr for a round of cokes.
Orr referred to a sign hanging from a wall that the establishment reserved "the right to refuse service to any person." He told the appellants that it was "a private business, * * * privately owned and privately operated and private property."
Addressing appellant Banks, after reiterating his reservation of being under no correlative duty to furnish the cokes, Orr told her, "I am refusing to serve you, and I would like for you to leave." Someone in the group said, "We prefer to remain."
By this time a crowd of at least two hundred persons had gathered outside the City Pharmacy. The witness adopted the solicitor's characterization of the crowd as being "menacing."
Meanwhile, Sgt. Bishop came into the store. The second time Orr asked the appellants to leave the premises, Bishop was then standing at one end of the soda fountain. Orr testified, "I turned to Sgt. Bishop and I told him that he had heard me ask them to leave in his presence and he had seen their apparent failure to do so and that I would like for him to see if he could make them leave and if he couldn't would he place them under arrest."
Bishop said, "You have heard the proprietor ask you to leave. Now, I am asking you to leave." On the appellants remaining seated and silent, Bishop placed them under arrest.
He needed no warrant to do so because the misdemeanor had been committed in his presence when the appellants refused to heed Orr's request. Code 1940, T. 15, § 154.
That Bishop gave them additional opportunity to comply was merely a matter of grace insofar as his taking them into custody was called for. Had Orr gone to the City Recorder (or other magistrate) and made oath for a warrant of arrest, the arresting officer would not have had to have been present. Bishop's being present dispensed with the need for a warrant prior to arrest.
The defendants filed a written motion to exclude the evidence because they were "peacefully upon the premises of an establishment performing an economic function invested with the public interest, as a customer, visitor, business guest or invitee." The ground cited continues that there is no basis for the charged refusal other than it came from a request motivated solely because of the defendant's race or color.
All the defense elicited from Orr was that he refused to serve the defendants because of self-interest in his economic survival and because the defendants came into his store as part of a program of using private premises as a sounding board for a "demonstration." The gathering of a menacing crowd lends logic to his looking out for himself.
Except for those of Birmingham (Act No. 193, Gen.Laws 1943, p. 183, June 18, 1943), Mobile and Montgomery (Act No. 242, Laws 1961, Sp.Sess., p. 2256, September 15, 1961), municipal ordinances do not come within the realm of judicial notice. Carter v. City of Gadsden, 264 Ala. 544, 88 So.2d 689.
This record is devoid of any attempt by the defense to show that the police department of the City of Talladega, or any other public official to any extent whatsoever had manifested any concern as to whether or not the proprietors of the City Pharmacy served or refused to serve Negroes.
Neither statute, nor pertinent regulation, nor declaration of a public official having authority in or for Talladega County has been called to our attention so as to bring this case under Peterson v. Greenville, supra, or Lombard v. Louisiana, supra, or Robinson v. Florida, supra.
Gober v. City of Birmingham, 41 Ala. App. 313, 133 So.2d 697, was apparently reversed (373 U.S. 374, 83 S.Ct. 1311, 10 L.Ed.2d 419) because of the unrepealed status at the time of Gober's sit-in of § 369 of the General City Code requiring racial separation in restaurants.
That part of what Judge Harwood said in Gober as to the use of private property still stands, indeed seems reinforced by Bell v. Maryland, supra. From the Gober opinion, supra, 41 Ala.App. at p. 317, 133 So.2d at p. 701, we quote:
"As we interpret the argument of counsel for appellant, its tenor may
"It is fundamental, and requires no citation of authority, that the grantor
Apart from the special concurring opinions of Douglas and Goldberg, JJ., in Bell v. Maryland, supra, no member of the present court has gainsaid what Black, J., wrote there for himself and Harlan and White, JJ., in dissent:
Footnote 44: "The opinion of our Brother GOLDBERG characterizes our argument as being that the Constitution `permits' Negroes to be denied access to restaurants on account of their color. We fear that this statement might mislead some readers. Precisely put, our position is that the Constitution of itself does not prohibit discrimination by those who sell goods
The judgments of the circuit court convicting the defendants are due to be
The appellant asks us to take Title II of the Civil Rights Act of 1964 as an act of amnesty.
Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1697, 12 L.Ed.2d 822, refers to the common law doctrine of oblivion. The capacity to forget or forgive presupposes the same lawgiver, e. g., the King in Parliament.
To examine the principle as here sought to be put in effect requires two enquiries:
1. Does the law of Alabama, decisional or statute, contemplate retrospective amnesty when a Federal Act pre-empts?
2. Has the Congress expressed an intent in Title II to make prior violations of otherwise valid State laws innocent?
Code 1940, T. 1, § 11, reads in part as follows:
This wording, by reason of the clause italicized, is explicit where the Maryland Act (1 Md.Code, § 3) in Bell, supra, was vague.
This section clearly establishes the metewand as status quo ante delictum. Moreover, it is no arrogation of a supposed right to exposit the meaning of Federal acts.
Ordinarily the prohibition of ex post facto laws is a one-way street. This section 11, however, requires language to apprise the individual lawmakers of the direction of what will follow enactment. No doubt the same distrust that led to § 45 of the Constitution inspired the adoption of § 11, supra.
In City of Birmingham v. Baranco, 4 Ala.App. 279, 58 So. 944, the decision rejected one level of government's, the State, legislating without express words to forego cases under a later repealed city ordinance. Though effect was given to a general saving clause in the city's by-laws, § 11, supra, was held not to apply to quasi criminal cases for the violation of municipal ordinances.
While the city, under some views, is merely a subordinant creature of the state, certainly the state is a component, and not an offspring, of the United States. Theory aside, we do not consider that even under Code 1940, T. 15, § 90, the Legislature of this State has shown any intention to withdraw nunc pro tunc prosecutions where Congress might legislate.
Similarly, after careful scrutiny of the Civil Rights Act, the Committee Report, and debates, we fail to find any expression that the Congress wished to wipe out prior State prosecutions.
Congress has used "shall" throughout Title II. This we take as normally implying a prospective command.
"Q Do you ordinarily serve cokes at your lunch counter?
"A As a general rule.
"A Yes, sir.
"Q I mean seated?
"A No, they weren't seated.
"A Not to my knowledge.