This case, appellants contend, is an attempt to convict them of crime, for exercising rights under the Constitution of the United States. The State in effect contends that, if this is true, then existing Maryland criminal procedure has put the facts as to exercise of constitutional rights in a sealed package, branded with a false label "conspiracy to assemble riotously to disturb the peace", and does not permit us to break the seal, but destroys our right and duty to prevent this violation of the constitution and to examine the facts as fully as necessary to this end.
The facts make it clear that appellants have been convicted for exercising their constitutional rights, viz., (1) the right of equal protection of the laws and of personal liberty under the due process clause, to play interracial tennis on a public park tennis court, upon compliance with all formal requirements, in the absence of any valid segregation law, rule or regulation — or in this case any at all, and (2) the right of freedom of speech and of the press and the right of peaceable assembly, to invite attendance of others at the tennis tournament and to distribute the circular for that purpose. On July 11, 1948 a number of the tennis players (including two of the *Page 18 appellants) and spectators (including four of the appellants) were arrested, and three days later indicted, for violating a rule and segregation "policy" of the Park Board. Buchman was not arrested or indicted. Later four of the appellants (not including Buchman) were indicted for violating a Park Board rule by disorderly conduct and by disturbing the peace. Two months after the arrests the State, evidently realizing that it could not obtain a conviction of violating a nonexistent segregation rule or a disembodied "policy", obtained another indictment of appellants (including Buchman) and fifteen other persons for riot and for conspiracy to assemble riotously to disturb the peace. As to appellants' constitutional right to play interracial tennis, the opinions of the judge at the trial and of the majority of the Supreme Bench on motion for new trial, apparently do not question — and the evidence does not warrant questioning — the statement and conclusion in the dissenting opinion of Judges Niles and Sherbow: "The basic fact is that there was no law, rule, or regulation of the Park Board prohibiting interracial tennis; there was only a minute in its records adopting a `policy' of segregation. The defendants therefore in planning the tennis match did not conspire to commit an unlawful act, nor in playing tennis did they commit an unlawful act. * * * We do not question the right of the Park Board to make proper rules and regulations for the recreational facilities in the parks; nor do we substitute our judgment for theirs. They had made no rule, and their own officials had issued permits to the players." Neither the "minute" referred to, nor its contents, were offered in evidence. On the contrary, the State's evidence shows that the segregation "policy" has not forbidden and does not forbid interracial athletics at the Stadium.
The opinions of the majority of the Supreme Bench and of the trial judge show that appellants were convicted for exercising not only one constitutional right, to play interracial tennis, but several constitutional rights, viz., the right to play interracial tennis and also *Page 19 the right of freedom of speech and the press and the right of peaceable assembly, in distributing the circular and otherwise inviting attendance at the tennis tournament. In those opinions the burden of the condemnation of appellants was (a) distribution of the circular, (b) invitation of spectators, (c) exercise of the constitutional right by more than two players (one white, one colored), the minimum number, sufficient (if they were arrested) to furnish a basis for a judicial "test" of the right, and (d) the exercise of the right at all without first establishing it by suit for injunction or mandamus — all after "warning" that "trouble might arise from the gathering if they attempted to play tennis". Distribution of the circular was an exercise of the freedom of speech and the press and the right of peaceable assembly. The circular had no tendency to — much less showed any intention or created any "clear and present danger" of — "defiance of law and order" or assembly to disturb the peace. It does not incite to, or suggest, resort to force or violence but only legal or political action to a legal and political end. The fact that the purpose of assembling was political as well as recreational only emphasizes the right of peaceable assembly and freedom of speech and the press. This was not the first time political action was ever taken on a tennis court — as was known before the First Amendment was ratified or proposed.
A prohibition of breach of the peace cannot constitutionally be applied to cover speech which "stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance." Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 895. No one is under obligation to apply for an injunction against criminal prosecution — or for mandamus to compel recognition of a constitutional right. There is no right to such an injunction except in special circumstances of irreparable injury. The normal way to "test" such a disputed right is to exercise it and take the risk of criminal prosecution. Beal v.Missouri Pacific R. Co., 312 U.S. 45, 49, *Page 20 61 S.Ct. 418, 85 L.Ed. 577; Douglas v. Jannette, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324, 146 A.L.R. 81. In Thomas v.Collins, 322 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, exercise of freedom of speech was sustained notwithstanding a previous injunction against it. As Judges Niles and Sherbow say: "Submission to arrest to test the validity of a law or regulation is a time-honored method. It was followed thirty years ago by proponents of Sunday amateur baseball. Hiller v. State,124 Md. 385, 92 A. 842. See also the opinion of Judge Sloan in Local No.36 etc. v. Mayor and City Council of Cumberland (14,392 Equity) decided October 19, 1938, in the Circuit Court for Allegany County, involving an ordinance relating to picketing, where the court held that the validity of the law should be tested by submission to arrest for its violation." A right that cannot be exercised is not a right. A constitutional right that can be exercised, by unpopular persons in an unpopular cause, not at all or only in silence and in solitude, is a mockery of the Constitution and of free government.
Notwithstanding general statements in the majority opinion of the Supreme Bench, there was no actual disorder or disturbance of the peace — at least none that could be recognized as such at a baseball game at the Stadium. Most of the appellants did not participate in any of the specific acts of so-called disorder mentioned in the opinion. The Supreme Bench holds that there is no evidence of riot because no one was terrified. No one has been convicted or tried though four of the appellants were indicted, for disorderly conduct or disturbing the peace. There is no evidence of "conspiracy to assemble riotously to disturb the peace." As Judges Niles and Sherbow say, "Nor do we believe that the defendants conspired to commit a lawful act in an unlawful manner. The tennis players and the spectators acted in an orderly manner, and there was no disturbance of any kind until the police came on the scene and began making arrests. There was no order given *Page 21 to the onlookers to disband. * * * Whether a cause be popular or unpopular the law remains the same. Viewed in its proper perspective we have here a group of persons who had permits to play tennis and who invited arrest to test the validity of a `policy' they contended was invalid. The evidence does not, in our opinion, show that they were guilty of causing a riot, or of conspiracy to create a riot, or of conspiracy to disturb the public peace or act in a disorderly manner".
The charge of conspiracy is a sham, belatedly devised to obtain and cover a conviction for exercising constitutional rights.
This court has held, too frequently and too recently to require citation of instances, that under existing Maryland criminal procedure it cannot review on appeal either the weight or the legal sufficiency of the evidence of guilt. In Slansky v.State, 192 Md. 94, 63 A.2d 599, it was held that this procedure in itself is not a denial of due process under the Fourteenth Amendment, i.e., is not lacking in any of the fundamentals of a fair trial which are essentials of due process. The Supreme Court has never held otherwise. Slansky had been convicted of bigamy. He contended that he had been deprived of two rights under the Constitution of the United States, (1) the right to a fair trial under the due process clause and (2) the right to marry in Maryland under the full faith and credit clause and a Nevada divorce decree. Slansky did not testify, but rested his defense on the Nevada decree. The decree did not recite personal service on the wife in Nevada or appearance by her, but recited a finding that Slansky was "a bona fide resident." Testimony of the wife at the Maryland trial, including a letter received by her from Slansky from Reno, was amply sufficient, not to say conclusive, to overcome the prima facie showing of jurisdiction in the decree itself. This court, reviewing the recitals in the decree and the other evidence just referred to, held that the jury "were entitled to find, as they did," that Slansky "did not acquire domicil *Page 22 in Nevada, and therefore the Nevada court lacked the power" to make its decree binding in Maryland. This court concluded, "As we have found nothing in the record in this case to show that appellant was denied any right guaranteed by the Constitution of the United States, the judgment of conviction will be affirmed".192 Md. 94, 111, 63 A.2d 606.
The State contends that what this court actually did in theSlansky case, viz., examine the record to find whether the defendant had been convicted for exercising a constitutional right or for committing a criminal wrong, this court now cannot do, but must shut its eyes to the facts and blindly affirm a judgment of conviction for exercising constitutional rights.
When, as applied to a particular case, state procedure, not in itself invalid, comes into collision with the Constitution of the United States, which must yield to the other? The State answers, That authority which is supreme must yield to that over which it is supreme. The Constitution answers, That which is not supreme must yield to that which is supreme. McCulloch v. Maryland, 4 Wheat. 316, 426, 4 L.Ed. 579.
The answer of the Constitution is the answer of the Supreme Court in every field of conflict, in none more clearly than in matters of state procedure and review of facts. The situation with respect to these matters was not always clear. The State of Virginia long and bitterly denied the right of the Supreme Court on writ of error to review state court decisions at all. Cohensv. Virginia, 6 Wheat. 264, 5 L.Ed. 257. In Martin v. Hunter, 1 Wheat. 304, 4 L.Ed. 97, the Supreme Court of Virginia refused to obey the mandate of reversal on the first writ of error. After the South Carolina Ordinance of Nullification had declared it unlawful for officers of the United States to collect customs duties in South Carolina, Congress by the Act of 1833 authorized removal, from a state court to a federal court, of any prosecution against an officer of the United States for *Page 23 any act done under the customs revenue laws of the United States. A similar act of 1815 had been in force for six years. This right of removal was extended in 1864 and 1866 to internal revenue officers and later to prohibition agents. This legislation reflects no doubt as to the right or scope of review on writ of error, but determination to protect United States officers against local prejudice from the beginning, not only at the end, of a prosecution for performing their duties. State of Tennesseev. Davis, 100 U.S. 257, 25 L.Ed. 648; State of Maryland v.Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449. At common law facts were not reviewable on writ of error. For many years the Supreme Court followed the general rule that on writ of error (to state or federal courts) only questions of law, not facts, are reviewed. As law itself became more factual, the distinction between law and fact less clear, and the art of hiding questions of law in questions of fact more advanced, an exception to the general rule was recognized when it was necessary to review facts in order to decide a question of law. Eventually the exception outgrew the rule. In 1928 writs of error were abolished and appeals substituted, but (except in name) differences between writ of error and appeal had already disappeared.
In Cresswill v. Grand Lodge Knights of Pythias, 225 U.S. 246, 261, 32 S.Ct. 822, 827, 56 L.Ed. 1074, the court, by Chief Justice White, stated, as "propositions which are as well settled as the rule itself," "that where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to cause it to be essentially necessary, for the purpose of passing upon the Federal question, to analyze and dissect the facts, to the extent necessary to do so the power exists as a necessary incident to a decision upon the claim of denial of the Federal right." Twenty-two years later in Norris v. Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074 the court, by Chief Justice Hughes, citing the Cresswill case and later cases, restated this proposition somewhat more broadly and generally: "When a federal right has been *Page 24 specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured." The performance of the duty to make that examination of evidence "cannot be foreclosed by the finding of a court, or the verdict of a jury, or both." Lisenba v. California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290, 86 L.Ed. 166; Ashcraft v.Tennessee, 322 U.S. 143, 147-148, 64 S.Ct. 921, 88 L.Ed. 1192. A state court of general jurisdiction cannot refuse to entertain a suit under an act of Congress, Second Employees Liability Cases (Mondou v. New York, N.H. H.R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A., N.S., 44; Lambros v. Brown,184 Md. 350, 41 A.2d 78, but in the trial of such a case in a state court, "the kind or amount of evidence required to establish it [e.g., to take it to the jury] is not subject to the control of the several states." Chicago, M. St. P. Ry. Co. v. Coogan,271 U.S. 474, 478, 46 S.Ct. 564, 565, 70 L.Ed. 1041. In such cases state courts should not follow the views of the state supreme court rather than those of the United States Supreme Court. Chesapeake Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 47, 52 S.Ct. 45, 76 L.Ed. 157. A state "Prima Facie Act" cannot be applied to such a case. New Orleans N.E.R.R. Co. v. Harris,247 U.S. 367, 370-371, 38 S.Ct. 535, 62 L.Ed. 1167; New Orleans N.E.R.R. Co. v. Scarlet, 249 U.S. 528, 529-530, 39 S.Ct. 369, 63 L.Ed. 752.
In Davis v. Wechsler, 263 U.S. 22, 24-25, 44 S.Ct. 13, 14, 68 L.Ed. 143 (cited in Norris v. Alabama, supra), the court, by Mr. Justice Holmes, gave the answer of the *Page 25 Constitution with respect to conflicts with state procedure: "Whatever springs the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. * * * The state courts may deal with that as they think proper in local matters but they cannot treat it as defeating a plain assertion of Federal right. The principle is general and necessary. Ward v. Love County,253 U.S. 17, 22, 40 S.Ct. 419, 64 L.Ed. 751. If the Constitution and laws of the United States are to be enforced, this Court cannot accept as final the decision of the state tribunal as to what are the facts alleged to give rise to the right or to bar the assertion of it even upon local grounds. Cresswill v. GrandLodge Knights of Pythias, 225 U.S. 246, 32 S.Ct. 822, 56 L.Ed. 1074. This is familiar as to the substantive law and for the same reasons it is necessary to see that local practice shall not be allowed to put unreasonable obstacles in the way."
It is not suggested in the opinion of this court, but seems to be implied in some of the reasoning, that though the Supreme Court can and must obey the Constitution and, so far as necessary, examine the facts and the evidence to that end, this court cannot and should not do so. Such a suggestion could hardly be taken seriously. Any court or judge charged with the duty of administering justice under law necessarily has power (until checked) to do injustice in disregard of law. But might is not right. By Article VI of the Constitution of the United States and Article 2 of the Maryland Declaration of Rights, and by his oath of office, every judge of this state is obligated to support the Constitution of the United States and is bound thereby, "anything in the Constitution or Laws of this State to the contrary notwithstanding." In this respect the obligations of every state judge and every federal judge are the same. Such defiance of the Constitution would be demoralizing and also, in its logical and practical results, would be absurd *Page 26 and futile. If this court cannot, but the Supreme Court can and must, examine the facts in order to support the Constitution, then after such a reversal by the Supreme Court and a second conviction this court would again be similarly impotent and the Supreme Court would be forced to compel compliance. Martin v.Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97. If it be said that trial judges or juries would not defy the Supreme Court by a second conviction, this court would be put in the still more ridiculous position of claiming an exclusive right to violate the Constitution and trusting the Supreme Court and the trial judges to perform the duty that we refuse to perform.
The opinion of this court adopts the State's contention intoto without discussing the real constitutional question involved and without giving adequate recognition to the differences between state and federal rights, between different federal rights and between rights and remedies. The main theme is (a) reiteration of what was decided in the Slansky case and is not questioned in the instant case, viz., that existing Maryland criminal procedure, anomalous as it is, is not per se lacking in such fundamentals of a fair trial as are essentials of due process and (b) insistence upon the "fairness" of appellants' trial. It is said that no "such unfairness is affirmatively shown * * * as to justify us in declaring the judgment a nullity"; that "the trial judge, and a majority of the judges of the Supreme Bench who reviewed the evidence, acted in good faith and in the exercise of an honest judgment, even if we were disposed to disagree with their conclusion"; that "the mere existence of error, open to review in another forum [?], does not amount to a deprivation of constitutional rights". On direct appeal from a judgment of conviction, not a proceeding to set aside a judgment, valid on its face, long after expiration of time for appeal (Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955), there is no occasion to declare the judgment "void" and "a nullity". Manifestly, "the mere existence of error does *Page 27 amount to a deprivation of constitutional rights", when the error itself is deprivation of constitutional rights by conviction of crime for exercising them. There is no such thing as a "fair" method of depriving a person of constitutional rights, even if it is done "in good faith and in the exercise of an honest judgment." A conviction in violation of constitutional rights cannot stand, "whether accomplished ingeniously or ingenuously".Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85 L.Ed. 84; Patton v. Mississippi, 332 U.S. 463, 465-466, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286.
It has been suggested, in justification of appellants' conviction, that nothing could be more serious than deprivation of life and that by good old Maryland practice men are hanged without review, on appeal, of the weight or sufficiency of the evidence of guilt. Murder and rape are not constitutional rights — though conviction of a federal officer of murder, for a lawful killing in the necessary performance of his duty, would be a violation of his constitutional rights. Tennessee v. Davis,supra; Maryland v. Soper, supra. As long as Maryland does not take the possibility of hanging a man without evidence seriously enough to give the same review on appeal in a capital case as it gives in a $101 civil case, the Constitution of the United States would not prevent Maryland from trying capital cases before a justice of the peace (with a jury, when desired) with no appeal at all. In that event the justice of the peace would be bound, just as this court now is bound, by the Constitution of the United States, and the accused would have the same right of review by the Supreme Court of the decision of the justice of the peace as it now has in respect of a decision of this court. The Supreme Court may review, on appeal or certiorari, only "final judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S.C.A. § 1257, Act of 1948, former Judicial Code, § 237, (a) (b). So far as the Constitution of the United States is concerned, Maryland need not provide any appeal at all. But if and *Page 28 when it does provide an appeal, the appellate court and judges, like all other Maryland courts and judges, are bound by the Constitution of the United States, "anything in the Constitution or Laws of this State to the contrary notwithstanding." Declaration of Rights, art. 2. Maryland cannot exempt them from this obligation.
In the opinion of this court Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 1719, 91 L.Ed. 1955, is quoted as holding that claims of denial of due process "must be raised by whatever procedure Illinois may provide, or, in default of relief by appropriate Illinois proceedings, by a new claim of denial of due process for want of such relief." The Foster case was "an original proceeding in the Supreme Court of Illinois by way of writ of error to test the validity of sentences of imprisonment following pleas of guilty." Eleven years after sentence the petitioners asked the Supreme Court of Illinois for their discharge, claiming denial of due process in that they did not have the benefit of counsel. Raymond v. State, 192 Md. 602,65 A.2d 285, was a similar proceeding by habeas corpus. In the instant case appellants are not suing to annul a judgment, valid on its face and ripe with years. They are haled into court, charged with crime. They are not seeking a judicial remedy but are asserting their constitutional rights in defense of the charge.
The judgments should be reversed.
It is to be regretted that Maryland should add to the list of cases in various states (many of them involving racial matters) in which a prosecution has succeeded, against law and justice, by manipulation of procedural devices, in attaining conviction and escaping correction in the state courts. *Page 29