Bell v. State

Oppenheimer, J., filed the following dissenting opinion. The only difference between the majority of the Court and myself is on the issue of whether the convictions of the appel ³⁷⁰ lants for acts which, under the Maryland public accommodations law would today be legal, are to be upheld because of the saving clause statute. I agree with my brethren that the passage of the 1963 public accommodations law brought about a fundamental change in the criminal trespass statute; that, in the situations specified in the public accommodations law, the two enactments are repugnant and are in irreconcilable conflict; and that the common law of Maryland is that our decision must accord with the law as it is at the time of final judgment. It is undisputed that, because of the remand of the cases to us by the Supreme Court of the United States, after our affirmance of the convictions in Bell v. State, 227 Md. 302 , 176 A. 2d 771 (1962), and after the passage of the public accommodations law, the judgments of conviction have not become final.

It is implicit in the opinion of the majority, and is clearly the law, that, apart from the operation of the saving clause statute, the convictions could not now stand. The majority holds, however, that, while the public accommodations law does not in terms amend or repeal the criminal trespass statute, the saving clause statute is nevertheless operative. With all due deference to the views of my brethren, I disagree. The question is one of statutory construction, of phraseology and inferences, but as in other cases in which the Court must determine the meaning of legislative enactments, we must look to the nature and purpose of the statutes.

Darnall v. Connor, 161 Md. 210 , 155 Atl. 894 (1931) ; Shut v. Simpson, 196 Md. 177 , 76 A. 2d 332 (1950). The public accommodations law deals with important rights of the individual. In essence, it not only negates the criminal nature of certain acts which formerly constituted trespasses but it restricts the very property rights which the criminal trespass statute was designed, in part at least, to protect. The effect of the public accommodations law includes the removal of a property right which formerly existed and the substitution of an affirmative personal right.

This is a positive and basic change in the rule which governs the law. The saving clause statute has the effect of continuing a prior criminal statute in force for the purpose of punishing offenses committed prior to a change in law which makes the same acts legal in the future. State v. Clifton, 177 Md. 572, 576 , 10 A. 2d 703 (1940). ³⁷¹ While the saving clause statute does not of itself impose a criminal penalty, it continues in effect penalties which, but for it, would be abolished, and therefore, in my opinion, should be subject to the same strict construction which applies to laws which impose the penalties in the first instance. The rights and liberties of the individual against the State are directly involved in both cases.

See State v. Fleming, 173 Md. 192 , 195 Atl. 392 (1937); Wanzer v. State, 202 Md. 601, 611 , 97 A. 2d 914 (1953). The saving clause statute, by its terms, applies only to the “repeal, or the repeal and re-enactment, or the revision, amendment or consolidation of any statute, or of any section or part of a section of any statute.” Code (1957) Article 1, Section 3. When there is such repeal or amendment, the act has the effect of continuing the repealed or amended statute in force for the purposes of punishing the offenses committed prior to the amendment or repeal. Where it is applicable, it affects a change in the common law.

The common law principle which the saving clause statute affects, when it is applicable, was stated by Chief Justice Marshall in these words: “It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. 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 * * * 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.” United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). This language was cited with approval in Keller v. State, 12 Md. 322 , 71 Am.

Dec. (1858). In most of the decisions applying the principle, the subsequent legislation repealed or amended ³⁷² the prior act under which there was a conviction. The rule applies also, however, where there is no repeal or amendment but where the effect of the prior law is abrogated or destroyed. 1 Sutherland, Statutory Construction, § 2043 (3d ed. 1943) ; Berger v. Berger, 104 Wis. 282 , 80 S. W. 585 (1899). The majority opinion holds, in effect, that whenever the principle enunciated by Marshall and followed by us in Keller and subsequent cases comes into effect, it does so because the prior rule or statute has been repealed or amended, and that when, as in this case, the subsequent act contains no language of repeal or amendment, the repeal or amendment is to be implied, and therefore, the saving clause statute becomes operative.

This reasoning, to me, disregards the distinction between invalidity of prior convictions because of subsequent legislative repeal or amendment and invalidity because of a fundamental change in the law —