author: Per Curiam. Mr. Justice Harlan,

text:
    JORDAN, SECRETARY OF STATE OF CALIFORNIA, et al. v. SILVER.
    No. 935.
    Decided June 1, 1965.

      Thomas C. Lynch, Attorney General of California, Charles E. Corker and Charles A. Barrett, Assistant Attorneys General, Sanford N. Gruskin, Deputy Attorney General, and Herman F. Selvin for appellants.

      Phill Silver, appellee, pro se.

   Per Curiam.

The motion of the appellant the Senate of the Legislature of California to take judicial notice of official judicial records is denied. The motion to strike the motion to dismiss or affirm is also denied. The motion to affirm is granted and the judgment is affirmed.

Mr. Justice Harlan,

whom Mr. Justice Clark and Mr. Justice Stewart join,

concurring.

The California Constitution reserves to the people of the State the initiative power to propose constitutional amendments by filing a petition with the Secretary of State. If the petition is signed by 8% of the persons who voted in the preceding gubernatorial election, the proposed amendment will be submitted to the people at the next general election, and only a bare majority vote of the people is required in order to pass the amendment.

Prior to 1926 the California Constitution, Art. IV, § 6, provided that both houses of the legislature would be apportioned on the basis of population. In 1926 an initiative measure, known as Proposition 28, was submitted to the voters which deleted the requirement that the Senate be apportioned on a strict population basis, leaving the method of apportioning the Assembly unaffected. The statements accompanying the measure, which were distributed to all voters, described the proposition as an attempt to provide a federal-type plan for California, similar to the apportionment of the United States Congress, and summarized the arguments pro and eon the proposal. Proposition 28 was approved by a popular vote of 437,003 to 363,208 in the November 1926 election, and the following year the legislature adopted apportionment statutes to effectuate the constitutional amendment. This legislation was submitted to the people as required by state law, and was approved by them in the 1928 election. The amendment provided that the Senate would be composed of 40 members, to be elected from senatorial districts; the districts would be based on population, but no county could contain more than one district, and no district could consist of more than three counties.

Since the adoption of these changes, various initiative measures have been submitted to the voters on more than one occasion in an attempt to change this apportionment system for the Senate. In 1948 such a proposition was defeated by a vote of 2,250,937 to 1,069,899. In 1960 such a proposition was defeated by a vote of 3,408,090 to 1,876,185. And in 1962 another such proposition was defeated by a vote of 2,495,440 to 2,181,758.

The Court today summarily affirms the decree of the District Court holding this senatorial apportionment, consistently approved by a majority of the people of California voting in general elections, to be invalid under the decisions of this Court in Reynolds v. Sims, 377 U. S. 533, and companion cases. Were I able to detect in any of those cases the slightest basis for optimism that the Court might consider last Term's reapportionment pronouncements to leave room for the people of a State to choose for themselves the kind of legislative structure they wish to have — at least when the democratic processes employed are as straightforward and flexible as those of California — I would vote to “Note” and hear this case. Finding, however, that the judgment of the District Court is squarely required by Lucas v. Forty-fourth General Assembly, 377 U. S. 713, I reluctantly acquiesce in the Court’s summary affirmance.

       Calif. Const., Art. IV, § 1.

       “For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts, as nearly equal in population as may be, and composed of contiguous territory, to be called senatorial and assembly districts.” Calif. Const, of 1879, Art. IV, § 6, in Calif. Laws 1925, p. xi.

       “For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts to be called senatorial and assembly districts. Such districts shall be composed of contiguous territory, and assembly districts shall be as nearly equal in population as may be. Each senatorial district shall choose one senator and each assembly district shall choose one member of assembly. . . . [I]n the formation of senatorial districts no county or city and county shall contain more than one senatorial district, and the counties of small population shall be grouped in districts of not to exceed three counties in any one senatorial district . . . .” Calif. Laws 1927, p. Ixxxv.
      Another measure, Proposition 20, was also submitted to the voters in the 1926 election, which would have preserved the apportionment, of both houses on a strict population basis. This proposition was defeated by a vote of 492,923 to 319,456. Record 37.

       “Argument in Favor of Legislative Reapportionment Initiative Measure.
      “ 'federal plan/
      “This proposed constitutional amendment will take the place of section 6, article 4, of the constitution of California, which now provides that the state shall be divided into forty senatorial districts and eighty assembly districts ‘as nearly equal in population as may be, and composed of contiguous territory/
      “The growth of city population in California, and particularly the unprecedented development of the two great urban regions of the state, will have the effect, if representation is reapportioned according to present law, of consolidating political power in the inhabitants of 3 per cent of the area of the state to the prejudice of the representative rights of the balance of the population who inhabit 97 per cent of the area of the state. The state legislature, foreseeing disadvantages to the general interests of the state, has repeatedly declined, since the publication of the last federal census, to reapportion representation on the basis of the existing law.
      “The present amendment would alter the constitution so as to enable the legislature to find a solution to the difficulty that will protect the right of the great bulk of the state to fair representation.
      “The plan is called the 'Federal Plan’ because its provisions resemble those of the federal constitution with respect to representation in the United States congress. It rests upon a principle widely recognized in American government and other governments that representation in a public assembly is equitably apportioned not according to population alone but according to two factors — population and territory.
      “The measure will preserve to rural California and the great agricultural producing areas which comprise it, the control of one house of the state legislature, namely: the senate. The measure makes no change in assembly districts. It does not increase the members of the legislature. It can not, in any way, add to state expense.
      “Under this plan no county or city and county has more than one senator. The small counties are grouped, but are given at least one senator to each three counties. There are fifty-eight counties in the state and forty senators. To illustrate the working of the plan, twenty-seven of these counties might, by reason of superior population, each elect one senator; sixteen counties grouped in twos might elect eight; and fifteen counties grouped in threes might elect five. Every large homogeneous geographical area of the state is assured one representative in the senate.
      “Twenty-nine states of the Union have based their legislative representation in some form upon this principle, and these states include, among others, New York, Pennsylvania, Massachusetts, Iowa, and Ohio. The principle was submitted to a popular election in Ohio in 1903, and was overwhelmingly adopted by 731,000 votes for it and only 26,479 votes against the principle. This amendment is sponsored by the California Farm Bureau Federation, the State Grange, the Farmers Union, and the Agricultural Legislative Committee. But it is also supported by chambers of commerce, women’s clubs, and civic organizations generally throughout the state. It will create a well-balanced legislature in which neither the cities nor the countryside may predominate. It is a just and wholesome provision. It will give the state a better legislature than is possible under present law, and will be a fair determination of a controversy disturbing to the best interests of California.
      “Vote YES on this amendment. p_ BARRom
      “Argument Against Legislative Reapportionment Initiative Measure.
      “The proposed amendment is unfair and impractical so far as it relates to senatorial districts.
      “The provision that no county or city and county shall contain more than one senatorial district would limit Alameda, Los Angeles and San Francisco to one senator each. These three combined have 200,000 more than half of the population of the state, so the result would be that the majority would have only three senators, and the minority would be represented by thirty-seven senators. There is nq good reason for the discrimination.
      “The agricultural and commercial interests are so closely allied and interwoven that neither one as such should have the greater power in legislation. The only fair way is to base the representation on population, in accordance with the fundamental principles of our government that the majority shall rule.
      “The amendment prescribes no method of determining how the senatorial districts shall be formed. It merely provides that counties of small population shall be grouped in districts of not more than three counties in one district. It is left to the legislature or reapportionment commission to determine arbitrarily and without restriction how it shall be done. Many of the counties of small population are contiguous, so it will follow that sparsely settled districts must be formed, and even the agricultural sections will not have equal representation in the senate as among themselves.
      “The populous counties pay the greater share of taxes, and should have the controlling voice in the expenditure of the state’s funds.
      “If the citizens of these centers should vote for this amendment they would help to disfranchise themselves.
      “Vote NO and preserve American principles.
      Record 54. “DANA R- WELLER.”

       Record 37. The vote was 692, 347 in favor, and 570,120 opposed.

       The gleam of a distinction between that case and this, which is suggested by what the Court said at p. 731 of its Lucas opinion, is wholly dissipated by what appears shortly thereafter at pp. 736-737.

       This affirmance does not of course touch the .propriety of any relief that the District Court may later grant, or the extent to which provisions of the California Constitution are still binding on the State Legislature in drafting apportionment legislation, see Forty-fourth General Assembly v. Lucas, 379 U. S. 693.

       Calif. Const., Art. IV, § 6. The present effect of this apportionment is that Los Angeles County, with a population of over 6,000,000, has one Senator, and the three smallest counties, which together have a population of 14,294, also have one Senator. There is no claim made, however, that the Assembly is not apportioned solely on the basis of population.

       Proposition 13 on the 1948 ballot. Record 37-38.

       Proposition 15 on the 1960 ballot. Record 38.

       Proposition 23 on the 1962 ballot. Record 78.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HEARNE et al. v. SMYLIE, GOVERNOR OF IDAHO, et al.
    No. 617.
    Decided June 1, 1965.

      Herman J. McDevitt for appellants.

      Allan G. Shepard, Attorney General of Idaho, and M. AUyn Dingel, Jr., Assistant Attorney General, for Williams et al., appellees.
   Per Curiam.

The appeal in this case concerns an order of the United States District Court for the District of Idaho staying this reapportionment suit until 30 days after the adjournment of the 1965 Session of the Idaho Legislature. The Idaho Legislature, after adopting a new reapportionment plan, adjourned on March 25, 1965. The stay order now having expired by its own terms and the District Court and the parties now being in a position to proceed promptly with this litigation, the motions to dismiss are granted and the appeal is dismissed.


author: Per Curiam. Mr. Chief Justice Warren,

text:
    DREWS et al. v. MARYLAND.
    No. 1010.
    Decided June 1, 1965.

      Francis D. Mumaghan, Jr., for appellants.

      Thomas B. Finan, Attorney General of Maryland, and Robert C. Murphy, Deputy Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.

Mr. Chief Justice Warren,

with whom Mr. Justice Douglas joins,

dissenting from the denial of certiorari.

On Sunday, September 6, 1959, Juretha Joyner and James L. Lacey, who are Negroes, and Helen W. Brown, Dale H. Drews and Joseph C. Sheeham, who are white, went to Gwynn Oak Park, an amusement park in Baltimore County, Maryland. Ironically, the park was celebrating “All Nations Day.” Shortly after 3 p. m. they were standing in a group by themselves and had, a park guard testified, attracted no attention from other patrons. The guard approached the group and told them that “we are very sorry but the park was closed to colored, and that the colored people would have to leave the premises ... Mr. Lacey answered that he was enjoying himself and would like to look around some more, and neither he nor Miss Joyner complied with the request to leave. The guard then asked all five to leave, but they refused. He testified, however, that they “were all very polite.” During this interchange between the guard and petitioners, other patrons of the park began to gather around.

Upon the refusal of petitioners to leave, the guard summoned the Baltimore County police, who, after asking petitioners to leave, placed them under arrest. Meanwhile, the crowd surrounding the petitioners grew larger and more hostile, even going so far as to kick, spit, and yell “Lynch them!” Neither the park officials nor the county police made any attempt to exclude from the park or arrest any of those who engaged in such conduct. Upon being informed of their arrest, the five joined arms briefly, and the three men then dropped to the ground and assumed a prostrate position. Petitioners Joyner and Brown remained on their feet. The police placed handcuffs on Miss Joyner, and escorted her and Miss Brown from the park. Though the police encountered some difficulty in pulling the women through the crowd, they left under their own power. The men, on the other hand, had to be carried out, but offered no active resistance. The only remark by any of the petitioners was made by one of the men, who, responding to mistreatment by someone in the crowd, said “. . . forgive him, he doesn't know what he is doing . . . .”

On April 5, 1960, petitioners Brown, Joyner, Drews and Sheeham were charged with “acting in a disorderly manner, to the disturbance of the public peace, at, in or on Gwynn Oak Amusement Park, Inc., a body corporate, a place of public resort and amusement in Baltimore County” in violation of Md. Code Ann. Art. 27, § 123 (1957 ed.). Mr. Lacey was not prosecuted. Petitioners waived jury trial, were found guilty by the court, and each was fined $25 plus costs. On January 18,1961, the Maryland Court of Appeals, defining disorderly conduct as “the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area,” affirmed the convictions. 224 Md. 186, 192, 167 A. 2d 341, 343-344. On June 22, 1964, this Court vacated the judgments and remanded the case to the Court of Appeals for consideration in light of Griffin v. Maryland, 378 U. S. 130, and Bell v. Maryland, 378 U. S. 226. 378 U. S. 547. On remand, the Court of Appeals, purporting to distinguish Griffin and Bell, reinstated and reaffirmed the prior judgments of conviction, Judge Oppenheimer dissenting. 236 Md. 349, 204 A. 2d 64.

1 cannot concur in the Court’s refusal to review this case. (1) There is in my mind serious question as to whether the conduct of petitioners can constitutionally be punished under a disorderly conduct statute. (2) It seems to me apparent from the record that petitioners’ conduct is protected under the Civil Rights Act of 1964, 78 Stat. 241, and that, under our decision in Hamm v. City of Bock Hill and Lupper v. Arkansas, 379 U. S. 306, the passage of the Act must be deemed to have abated the convictions.

I.

In Thompson v. Louisville, 362 U. S. 199, the only evidence supporting the petitioner’s disorderly conduct conviction was to the effect that, after being arrested on another charge, he was “very argumentative” with the arresting officers. We set aside the conviction on the ground that it was “so totally devoid- of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment.” Ibid. Thompson was followed in Garner v. Louisiana, 368 U. S. 157, where the evidence showed that the petitioners, who were Negroes, had taken seats at a lunch counter where only white people were served, and had refused to leave upon request. For this they were convicted of, disturbing the peace. For purposes of our decision, we gave the statute under which the petitioners were convicted its broadest possible readings, and assumed that it outlawed even peaceful and orderly conduct which foreseeably might cause a public commotion, id., at 169. Nonetheless, we found the petitioners’ conduct constitutionally insufficient to support the conviction. And in Barr v. City of Columbia, 378 U. S. 146, we reversed a breach of the peace conviction based on conduct similar to that involved in Garner. In doing so, we observed that

“because of the frequent occasions on which we have reversed under the Fourteenth Amendment convictions of peaceful individuals who were convicted of breach of the peace because of the acts of hostile onlookers, we are reluctant to assume that the breach-of-peace statute covers petitioners’ conduct here. . . . Since there was no evidence to support the breach-of-peace convictions, they should not stand.” Id., at 150-151.

I do not find this case meaningfully distinguishable from Garner and Barr. Clearly, nothing petitioners did prior to being placed under arrest could be called disorderly conduct: their only “sins” up to that point were being Negro or being in the company of Negroes, and politely refusing to leave the park. Nonetheless, they were arrested. Then all five members of the group briefly linked arms, and, in a further show of passive resistance, the three men dropped to the ground. They did hot, the police officers testified, offer anything in the way of active resistance to either arrest or ejection. As Judge Oppenheimer observed: “In resisting the command of the officers to leave the park, the defendants used no force against the officers or anyone else; they held back or fell to the ground.” 236 Md., at 355, 204 A. 2d, at 68. Nor did they argue with the police, cf. Thompson v. Louisville, supra, or use profanity, cf. Sharpe v. State, 231 Md. 401, 190 A. 2d 628, cert. denied, 375 U. S. 946; indeed, the only words spoken were in the nature of a plea for forgiveness of one of the mob. All they did was refuse to assist in their own ejection from a segregated amusement park.

The two women did not even lie down. The only bit of testimony from which the trial judge could possibly have inferred disorderly behavior is the following:

“Q. Now, Officer, do you always place handcuffs on persons whom you have arrested?
“A. When I have a little trouble getting them through the Park or any — when I have a little trouble with them, yes.
“Q. What trouble did you have with Juretha Joyner?
“A. By refusing to leave.
“Q. Did you place handcuffs on any of the other Defendants?
“A. No, I don’t recall.
“Q. Did you or did you not?
“A. No, sir.
“Q. Now, did the two female Defendants leave the Park, did they leave under their own power?
“A. I had to pull them through the crowd.
“Q. They walked out?
“A. They walked out, but I had to pull them through.
“The Court: Why did you have to pull them through?
“A. Because they didn’t want to leave voluntarily.
“Q. They came when you pulled?
“A. They did, yes, sir.”

There is undoubtedly some truth to the officer’s surmise; I am sure neither woman liked being ejected from the park solely because of her race or the race of her friend. I suspect that their reluctance also resulted in no small measure from a fear of being pulled through a shouting, spitting, kicking mob.

Even if it be assumed that the arrest of petitioners was lawful,1 have great difficulty distinguishing the conduct of the women, and, to a lesser extent, that of the men, from the refusals to leave segregated establishments which were before us in Garner and Barr. I cannot see how a statute outlawing “drunkenness and disorderly conduct” can be said to have given petitioners fair warning, cf. Bouie v. City of Columbia, 378 U. S. 347, that the conduct (or, in the case of the women, lack of conduct) in which they engaged was criminally punishable. I cannot, at least not without argument and full consideration by the Court, join in letting stand a decision which holds that police can arrest persons who are doing nothing remotely disorderly, secure in the knowledge that if the persons refuse wholeheartedly to cooperate in their own arrest and removal to a waiting squad car, their conviction for disorderly conduct will be forthcoming.

II.

In Hamm v. City of Bock Hill and Lupper v. Arkansas, 379 U. S. 306, 308, we held:

“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.”

The convictions in this case did not become final until today. That the amusement park is an establishment covered by § 201 of the Civil Rights Act, 78 Stat. 241, 243, seems clear. I take it, therefore, that the Court does not regard petitioners’ conduct as a “peaceful attempt to be served on an equal basis.” I cannot agree. Surely the attempt to be served was completely orderly, and, as I indicated above, I think petitioners’ post-arrest conduct amounted to no more than a natural and fully understandable reaction to their arbitrary exclusion from the park.

In two recent decisions, we have, rightly in my opinion, recognized that people denied service because of their race are likely to react with .less than wholehearted cooperation. Today, I fear, the Court forgets that elemental principle of human conduct, and demands, on pain of criminal penalty, the patience of Job. In Blow v. North Carolina, 379 U. S. 684, the evidence adduced at trial showed that the petitioners, two Negroes, were refused service in a restaurant, whereupon one proceeded to sit down on the floor mat outside the door, and the other stood near the door. They were convicted under a statute making it a crime to enter upon the lands of another without a license after being forbidden to do so. We held that the Civil Rights Act abated their convictions. In McKinnie v. Tennessee, 380 U. S. 449, the petitioners, eight Negroes, entered the vestibule of a restaurant, were refused entrance into the restaurant proper, whereupon they remained in the vestibule, which measured 6' x 6' 4", for approximately 20 minutes. There was testimony that the petitioners had engaged in some pushing and shoving, but the evidence was unclear as to whether the pushing was initiated by the Negroes or was attributable to white people who, during the 20 minutes, entered the restaurant through the vestibule. Again, we held that the convictions (for conspiracy to injure trade or commerce) had been abated by the passage of the Civil Rights Act. In each case we concluded that the conduct of the petitioners constituted no more than a peaceful refusal to acquiesce in a denial of their federal rights. I think we should draw the same conclusion here.

In dissenting, I of course do not suggest that a civil rights demonstrator, or anybody else, has a right to block traffic, or bar access to a man’s home or place of business. I fully concur in the Court’s observation in Cox v. Louisiana, 379 U. S. 536, 554-555:

“The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.”

But such examples are a far cry from what happened here. Juretha Joyner, a Negro, went with some friends to celebrate “All Nations Day” at Gwynn Oak Park. Despite the facts that she behaved with complete order and dignity, and that her right to be at the park is protected by federal law, she was asked to leave, solely because of her race. She refused and, upon being handcuffed, displayed some reluctance (though no active resistance) to being pulled through an actively hostile mob. For this she was convicted of “acting in a disorderly manner, to the disturbance of the public peace.” Today the Court declines to review her conviction, and the convictions of her three companions. I cannot join.

       I agree with appellee that this is not a proper appeal. However, in 28 U. S. C. § 2103 (1958 ed., Supp. V), Congress has provided, in pertinent part:
      “If an appeal to the Supreme Court is improvidently taken from the decision of the highest court of a State, or of a United States court of appeals, in a ease where the proper mode of a review is by petition for certiorari, this alone shall not be ground for dismissal; but the papers whereon the appeal was taken shall be regarded and acted on as a petition for writ of certiorari and as if duly presented to the Supreme Court at the time the appeal was taken.”

       Section 123 provides, in pertinent part:
      “Drunkenness and disorderly conduct generally; habitual offenders.
      “Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace, [in any of a number of specified locations, including places of public resort or amusement] shall be deemed guilty of a misdemeanor; and, upon conviction thereof, shall be subject to a fine of not more than fifty dollars, or be confined in jail for a period of not more than sixty days or be both fined and imprisoned in the discretion of the court. . . .”

       This Court has never (and I hope it never does) let the fact that the criminal penalty is relatively small stand in the way of reviewing a case presenting important constitutional questions. E. g., Thompson v. Louisville, 362 U. S. 199, 203-204 ($10 fine); Yick Wo v. Hopkins, 118 U. S. 356 ($10 fine).

       Compare Cox v. Louisiana, 379 U. S. 536, 551-552.

       In Garner the Court noted that the record did not support the allegation that the trial judge had taken judicial notice of the fact that the petitioners’ presence in a segregated establishment was likely to cause a disturbance. 368 U. S., at 173. Neither the trial transcript in the instant case nor the trial judge’s memorandum opinion indicates that he took that sort of notice here.

       It is far from clear that the arrest was lawful. In view of the fact that §24^13 of the Baltimore County Code (1958) authorizes the appointment of special police officers “for the proper protection of persons and property in the county,” it may well be that the guard who asked petitioners to leave the park enjoyed the same status as the officer involved in Griffin v. Maryland, 378 U. S. 130. When this case was here the first time, we remanded it for consideration in light of
        Griffin. However, only Judge Oppenheimer, dissenting, drew from our remand the meaning that, until today, I too had thought it was supposed to carry, and voted to remand the case to the trial court for an investigation of the relation between the guard and the county:
      “If Wood, the ‘special officer’ in this case, had virtually the same authority from Baltimore County that Collins [the' guard involved in Griffin] had from Montgomery County . . . then under Griffin v. Maryland, supra, the State was a joint participant in the discriminatory action.
      “The Baltimore County Code authorizes the county to appoint special police officers to serve for private persons or corporations. Baltimore County Code, Sections 24-13 and 35-3 (1958). I would remand this case to the Circuit Court for Baltimore County for the taking of additional testimony to determine whether or not Wood was appointed by Baltimore County under these sections of its Code. If he was, the convictions should be reversed.” 236 Md., at 355; 204 A. 2d, at 68 (Oppenheimer, J., dissenting).
      Thus we still do not know whether the guard’s action constituted state action, thereby rendering his command to leave the park unconstitutional. Yet it is axiomatic that “one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.” Wright v. Georgia, 373 U. S. 284, 291— 292. Moreover, a strong argument can be made that, under Maryland law, resisting an unlawful arrest does not constitute disorderly conduct. See Sharpe v. State, 231 Md. 401, 403, 404, 190 A. 2d 628, 630, cert. denied, 375 U. S. 946.

       With the conduct of petitioners herein, compare that of the defendants in Sharpe v. State, supra, note 6, and In re Cromwell, 232 Md. 409, 194 A. 2d 88. Also, compare Niemotko v. State, 194 Md. 247, 250, 71 A. 2d 9, 10, with Niemotko v. Maryland, 340 U. S. 268, 271.

       Whether or not petitioners’ conduct would support a conviction for something other than-disturbing the peace I do not know. Nor do I inquire, for “ [c] onviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U. S. 353, 362. See also Garner v. Louisiana, 368 U. S. 157, 164; Thompson v. Louisville, 362 U. S. 199, 206; Cole v. Arkansas, 333 U. S. 196, 201.

       It seems to me that the persons who were in fact guilty of disorderly conduct were the members of the crowd; however, none of them was prosecuted.

       There is a restaurant at Gwynn Oak Park; indeed, petitioners were standing next to it when they were arrested. If a substantial portion of the food served in that restaurant has moved in interstate commerce, the entire amusement park is a place of public accommodation under the Act. §§ 201 (b) (2), 201 (b) (.4), 201 (c). See also § 201 (b) (3). If the Court were unwilling to assume that the restaurant serves a substantial portion of such food, the proper course would be to remand the case for a hearing on the issue. Since the Court denies certiorari, I assume that it is for some other reason that it regards petitioners’ conduct as not protected by the Act. I further assume that the fact that three of the petitioners are white is not the decisive factor, cf. Walker v. Georgia, ante, p. 355, since certiorari is denied, .as to .the Negro petitioner too.


text:
    TRAVIA et al. v. LOMENZO, SECRETARY OF STATE OF NEW YORK, et al.
    No. 1218.
    Decided June 1, 1965.

      Simon H. Rijkind and Edward N. Costikyan for appellants.

      Louis J. Lejkowitz, Attorney General of New York, Daniel M. Cohen and George D. Zuckerman, Assistant Attorneys General, Donald Zimmerman, Special Assistant Attorney General, and Orrin G. Judd for Lomenzo et al.; and Leonard B. Sand and Max Gross for WMCA, Inc., et al., appellees.
   Per Curiam.

The motion to accelerate the appeal is denied. The application for a stay, addressed to Mr. Justice Harlan as Circuit Justice and referred by him to the Court for consideration under Rule 50 (6), is denied.

Mr. Justice Harlan,

dissenting.

An application has been made to me, as Circuit Justice, for a stay pending appeal from an order of a three-judge District Court, dated May 24,1965, ordering New York to hold a special legislative election on November 2, 1965, under the electoral scheme embodied in reapportionment “Plan A” passed by the New York Legislature, signed by the Governor, and held unconstitutional under the State Constitution by the New York Court of Appeals. The stay application was accompanied by a motion, addressed to the Court, asking for an acceleration and immediate hearing of the appeal, to which the relief sought from me is incident. Because the stay and acceleration questions were in my opinion inextricably related and involved issues of far-reaching importance, I referred the stay application to the full Court for determination (see Sup. Ct. Rule 50 (6)) in conjunction with the motion to accelerate the appeal. The Court now denies both the stay and motion to accelerate, and I respectfully dissent.

“Plan A” was one of four alternative reapportionment plans passed by the New York Legislature under the impact of an order of the District Court, dated July 27,1964, entered pursuant to this Court’s decision in WMCA, Inc. v. Lomenzo, 377 U. S. 633, which held New York’s then-existing method of legislative apportionment violative of the Fourteenth Amendment. The District' Court order provided by way of interim relief that (1) the November 1964 legislative elections could proceed under the invalidated apportionment system, but the legislators would be permitted to serve for only a one-year period, instead of the two-year term provided in the State Constitution; (2) a special November 1965 election must be held under a constitutionally valid apportionment plan to be enacted by the New York Legislature and submitted to the District Court for approval not later than April 1,1965 (later extended to May 5, 1965), the legislators so elected again to serve for only one year; and (3) the regularly scheduled November 1966 election, for a normal two-year term, would be held under the same or some other court-approved reapportionment plan. This Court summarily affirmed the District Court’s order. Hughes v. WMCA, Inc., 379 U. S. 694. Two dissenting Justices would have set the case for plenary consideration, and two concurring Justices expressly noted that the Court’s action did not foreclose the District Court from modifying its interim order in light of subsequent developments.

In December 1964 the 1964 Legislature, meeting in special session, passed and the Governor signed four alternative reapportionment plans, one of which, “Plan A,” is involved in the matter now before us. On January 26, 1965, the three-judge District Court found that “Plan A” satisfied federal constitutional requirements, but that each of the other plans did not.' 238 F. Supp. 916. On April 14, 1965, the New York Court of Appeals held all four plans invalid under the State Constitution, in that each provided for an Assembly of more than 150 members, thus exceeding the membership limit prescribed by the New York Constitution, Art. 3, § 2. In re Orans, 15 N. Y. 2d 339, 206 N. E. 2d 854.

Ignoring the New York Court of Appeals’ holding that Plan A violated the State Constitution, a majority of the District Court, on May 18, 1965, ordered the November 1965 state legislative election to proceed under that plan. One judge dissented, considering that a more appropriate, though admittedly not wholly satisfactory, “interim” solution would be to permit the November 1965 election to go forward under the old reapportionment formula, with the legislators thus elected being accorded “weighted votes” in the legislature based on population.

On May 24, 1965, the State Legislature passed three bills, the substantial effects of which were (1) to adopt the dissenting district judge’s weighted voting formula for the 1966 legislative session, without holding an election this fall; (2) to create a bi-partisan commission to devise a new reapportionment formula for the 1966 election, meeting both. federal and state constitutional requirements; and (3) to issue a call for a constitutional convention to promulgate a permanent reapportionment plan to govern the 1968 and subsequent elections. The Speaker of the Assembly and the President pro tem of the State Senate (the intervenors-appellants here) thereupon sought leave to intervene in the district court proceedings and to persuade the court to modify the interim relief in accordance with these legislative proposals. Their application for leave to intervene was granted, but the District Court refused to modify its earlier order. These applications for a stay and accelerated appeal followed immediately.

These matters bristle with difficult and important questions that touch the nerve centers of the sound operation of our federal and state judicial and political systems. They involve, among other things, the right of a federal court to order that one house of a state legislature shall temporarily be of greater size than is permitted by the State Constitution. Surely such questions are deserving of plenary consideration and reasoned explication. By denying a stay and refusing to accelerate this appeal, the Court, instead, has in effect decided them not only summarily but also sub silentio. For while the denial of a stay does not technically moot the appeal, it is manifest that such is the practical effect of the Court’s action, since in normal course the appeal will not even be heard until after the presently ordered November election has taken place.

Without prejudging the question, the propriety of a federal court’s ordering a state election to proceed under a plan which the highest court of the State has found to violate the State Constitution in respects not claimed to be violative of the Federal Constitution, when a number of alternatives are available, raises what I consider to be very serious federal questions which this Court should at least hear. All parties have shown themselves willing to argue the case promptly. I would set the case for immediate argument, and would have the Court render its decision on the stay promptly thereafter, with opinions on the merits of the controversy to follow in due course. Compare Cooper v. Aaron, 358 U. S. 1.

I am wholly at a loss to understand the Court’s casual way of disposing of this matter and I can find no considerations of any kind which justify it. The Court should be willing to face up articulately to these difficult problems which have followed as a not unnatural aftermath of its reapportionment decisions of last Term.

       New York Laws 1964, c. 976. At the same time the Legislature passed three successive amendments to c. 976: New York Laws 1964, cc. 977-978 (Plan “B”), c. 979 (Plan “C”), and c. 981 (Plan “D”). These four acts have been referred to throughout the proceedings as Plans A, B, C, apd D.

       New York Assembly Intro. 6051, Print. 7067, vetoed by the Governor on May 27, 1965.

       New York Assembly Intro. 6050, Print. 7066, vetoed by the Governor on May 27, 1965.

       New York Assembly Intro. 5695, Print. 5988.

       The necessity for a prompt disposition is evidenced by the fact that the State’s primary machinery must be set in motion today if an election next November is to take place.


text:
    MOTOR CONVOY, INC., et al. v. UNITED STATES et al.
    No. 987.
    Decided June 1, 1965.

      Paul M. Daniell, Robert E. Born and Martin Sack for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Robert W. Ginnane and Betty Jo Christian for the United States et al.; George S. Dixon for National Automobile Transporters Association; and Nelson M. Harris, Jr., for Dixie Transport Co., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    FOX v. UNITED STATES.
    No. 1032.
    Decided June 1, 1965.

      Sidney W. Provensal, Jr., for appellant.

      Solicitor General Cox for the United States.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.