378 U.S.

347
84 S.Ct. 1697
12 L.Ed.2d 894

Simon BOUIE and Talmadge J. Neal, Petitioners,

v.
CITY OF COLUMBIA.
No. 10.
Argued Oct. 14 and 15, 1963.
Decided June 22, 1964.

Jack Greenberg, New York City, Matthew Perry, Columbia, S.C., and
Mrs. Constance B. Motley, New York City, for petitioners.
David W. Robinson, II, and John W. Sholenberger, Columbia, S.C., for
respondent.
Ralph S. Spritzer, Washington, D.C., for United States, as amicus curiae,
by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.

This case arose out of a 'sit-in' demonstration at Eckerd's Drug Store in

Columbia, South Caroli a. In addition to a lunch counter, Eckerd's maintained
several other departments, including those for retail drugs, cosmetics, and
prescriptions. Negroes and whites were invited to purchase and were served
alike in all departments of the store with the exception of the restaurant
department, which was reserved for whites. There was no evidence that any
signs or notices were posted indicating that Negroes would not be served in that
department.

On March 14, 1960, the petitioners, two Negro college students, took seats in a
booth in the restaurant department at Eckerd's and waited to be served. No one
spoke to them or approached them to take their orders for food. After they were
seated, an employee of the store put up a chain with a 'no trespassing' sign
attached. Petitioners continued to sit quietly in the booth. The store manager
then called the city police department and asked the police to come and remove

petitioners. After the police arrived at the store the manager twice asked
petitioners to leave. They did not do so. The Assistant Chief of Police then
asked them to leave. When petitioner Bouie asked 'For what?' the Assistant
Chief replied: 'Because it's a breach of the peace * * *.' Petitioners still refused
to leave, and were then arrested. They were charged with breach of the peace in
violation of 15909, Code of Laws of South Carolina, 1952, but were not
convicted. Petitioner Bouie was also charged with resisting arrest, and was
convicted, but the conviction was reversed by the State Supreme Court for
insufficiency of evidence. Both petitioners were also charged with criminal
trespass in violation of 16386 of the South Carolina Code of 1952 (1960
Cum.Supp.);1 on this charge they were convicted, and their convictions were
affirmed by the State Supreme Court over objections based upon the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. 239 S.C.
570, 124 S.E.2d 332. We granted certiorari to review the judgments affirming
these trespass convictions. 374 U.S. 805, 83 S.Ct. 1690, 10 L.Ed.2d 1030.
3

We do not reach the question presented under the Equal Protection Clause, for
we find merit in petitioners' contention under the Due Process Clause and
reverse the judgments on that ground.

Petitioners claim that they were denied due process of law either because their
convictions under the trespass statute were based on no evidence to support the
charge, see Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654
or because the statute failed to afford fair warning that the conduct for which
they have now been convicted had been made a crime. The terms of the statute
define the prohibited conduct as 'entry upon the lands of another * * * after
notice from the owner or tenant prohibiting such entry * * *.' See note 1, supra.
Petitioners emphasize the conceded fact that they did not commit such conduct;
they received no 'notice * * * prohibiting such entry' either before they entered
Eckerd's Drug Store (where in fact they were invited to enter) or before they
entered the restaurant department of the store and seated themselves in the
booth. Petitioners thus argue that, under the statute as written, their convictions
would have to be reversed for want of evidenc under the Thompson case. The
argument is persuasive but beside the point, for the case in its present posture
does not involve the statute 'as written.' The South Carolina Supreme Court, in
affirming petitioners' convictions, construed the statute to cover not only the act
of entry on the premises of another after receiving notice not to enter, but also
the act of remaining on the premises of another after receiving notice to leave.2
Under the statute as so construed, it is clear that there was evidence to support
petitioners' convictions, for they concededly remained in the lunch counter
booth after being asked to leave. Petitioners contend, however, that by applying
such a construction of the statute to affirm their convictions in this case, the

State has punished them for conduct that was not criminal at the time they
committed it, and hence has violated the requirement of the Due Process Clause
that a criminal statute give fair warning of the conduct which it prohibits. We
agree with this contention.
5

The basic principle that a criminal statute must give fair warning of the conduct
that it makes a crime has often been recognized by this Court. As was said in
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989,

'The constitutional requirement of definiteness is violated by a criminal statute

that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The underlying principle is
that no man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed.'

Thus we have struck down a state criminal statute under the Due Process
Clause where it was not 'sufficiently explicit to inform those who are subject to
it what conduct on their part will render them liable to its penalties.' Connally
v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. We
have recognized in such cases that 'a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates the first
essential of due process of law,' ibid., and that 'No one may be required at peril
of life, liberty or property to speculate as to the meaning of penal statutes. All
are entitled to be informed as to what the State commands or forbids.' Lanzetta
v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.3

It is true that in the Connally and Lanzetta cases, and in other typical
applications of the principle, the uncertainty as to the statute's prohibition
resulted from vague or overbroad language in the statute itself, and the Court
concluded that the statute was 'void for vagueness.' The instant case seems
distinguishable, since on its face the language of 16386 of the South
Carolina Code was admirably narrow and precise; the statute applied only to
'entry upon the lands of another * * * after notice * * * prohibiting such entry *
* *.' The thrust of the distinction, however, is to produce a potentially greater
deprivation of the right to fair notice in this sort of case, where the claim is that
a statute precise on its face has been unforeseeably and retroactively expanded
by judi ial construction, than in the typical 'void for vagueness' situation. When
a statute on its face is vague or overbroad, it at least gives a potential defendant
some notice, by virtue of this very characteristic, that a question may arise as to
its coverage, and that it may be held to cover his contemplated conduct. When
a statute on its face is narrow and precise, however, it lulls the potential

defendant into a false sense of security, giving him no reason even to suspect
that conduct clearly outside the scope of the statute as written will be
retroactively brought within it by an act of judicial construction. If the
Fourteenth Amendment is violated when a person is required 'to speculate as to
the meaning of penal statutes,' as in Lanzetta, or to 'guess at (the statute's)
meaning and differ as to its application,' as in Connally, the violation is that
much greater when, because the uncertainty as to the statute's meaning is itself
not revealed until the court's decision, a person is not even afforded an
opportunity to engage in such speculation before committing the act in
question.
9

There can be no doubt that a deprivation of the right of fair warning can result
not only from vague statutory language but also from an unforeseeable and
retroactive judicial expansion of narrow and precise statutory language. As the
Court recognized in Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237,
239, 'judicial enlargement of a criminal act by interpretation is at war with a
fundamental concept of the common law that crimes must be defined with
appropriate definiteness.' Even where vague statutes are concerned, it has been
pointed out that the vice in such an enactment cannot 'be cured in a given case
by a construction in that very case placing valid limits on the statute,' for

10

'the objection of vagueness is two-fold: inadequate guidance to the individual

whose conduct is regulated, and inadequate guidance to the triers of fact. The
former objection could not be cured retrospectively by a ruling either of the
trial court or the appellate court, though it might be cured for the future by an
authoritative judicial gloss. * * *' Freund, The Supreme Court and Civil
Liberties, 4 Vand.L.Rev. 533, 541 (1951).

11

See Amsterdam, Note, 109 U.Pa.L.Rev. 67, 7374, n. 34.

12

If this view is valid in the case of a judicial construction which adds a

'clarifying gloss' to a vague statute, id., at 73, making it narrower or more
definite than its language indicates, it must be a fortiori so where the
construction unexpectedly broadens a statute which on its face had been
definite and precise. Indeed, an unforeseeable judicial enlargement of a
criminal statute, applied retroactively, operates precisely like an ex post facto
law, such as Art. I, 10, of the Constitution forbids. An ex post facto law has
been defined by this Court as one 'that makes an action done before the passing
of the law, and which was innocent when done, criminal; and punishes such
action,' or 'that aggravates a crime, or makes it greater than it was, when
committed.' Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648.4 If a state legislature
is barred by the Ex Post Facto Clause from passing such a law, it must follow

that a State Supreme Court is barred by the Due Process Clause from achieving
precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283
U.S. 553, 565, 51 S.Ct. 582, 586, 75 L.Ed. 1264. The fundamental principle
that 'the required criminal law must have existed when the conduct in issue
occurred,' Hall, General Principles of Criminal Law (2d ed. 1960), at 5859,
must apply to bar retroactive criminal prohibitions emanating from courts as
well as from legislatures. If a judicial construction of a criminal statute is
'unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue,' it must not be given retroactive effect. Id., at 61.
13

The basic due process concept involved is the same as that which the Court has
often applied in holding that an unforeseeable and unsupported state-court
decision on a question of state procedure does not constitute an adequate ground
to preclude this Court's review of a federal question. See, e.g., Wright v.
Georgia, 373 U.S. 284, 291, 83 S.Ct. 1240, 1245, 10 L.Ed.2d 349; N.A.A.C.P.
v. Alabama, 357 U.S. 449, 456458, 78 S.Ct. 1163, 1168 1169, 2 L.Ed.2d
1488; Barr v. City of Columbia, 378 U.S. 146, 84 S.Ct. 1734. The standards of
state decisional consistency applicable in judging the adequacy of a state
ground are also applicable, we think, in determining whether a state court's
construction of a criminal statute was so unforeseeable as to deprive the
defendant of the fair warning to which the Constitution entitles him. In both
situations, 'a federal right turns upon the status of state law as of a given
moment in the pastor, more exactly, the appearance to the individual of the
status of state law as of that moment * * *.' 109 U.Pa.L.Rev., supra, at 74, n. 34.
When a state court overrules a consistent line of procedural decisions with the
retroactive effect of denying a litigant a hearing in a pending case, it thereby
deprives him of due process of law 'in its primary sense of an opportunity to be
heard and to defend (his) substantive right.' Brinkerhoff-Faris Trust & Sav. Co.
v. Hill, 281 U.S. 673, 678, 50 S.Ct. 451, 453, 74 L.Ed. 1107. When a similarly
unforeseeable state-court construction of a criminal statute is applied
retroactively to subject a person to criminal liability for past conduct, the effect
is to deprive him of due process of law in the sense of fair warning that his
contemplated conduct constitutes a crime. Applicable to either situation is this
Court's statement in Brinkerhoff-Faris, supra, that '(i)f the result above stated
were attained by an exercise of the state's legislative power, the transgression of
the due process clause of the Fourteenth Amendment would be obvious,' and
'The violation is none the less clear when that result is accomplished by the
state judiciary in the course of construing an otherwise valid * * * state statute.'
Id., 281 U.S. at 679680, 50 S.Ct. at 454.

14

Applying those principles to this case, we agree with petitioners that 16386
of the South Carolina Code did not give them fair warning, at the time of their

conduct in Eckerd's Drug Store in 1960, that the act for which they now stand
convicted was rendered criminal by the statute. By its terms, the statute
prohibited only 'entry upon the lands of another * * * after notice from the
owner * * * prohibiting such entry * * *.' There was nothing in the statute to
indicate that it also prohibited the different act of remaining on the premises
after being asked to leave. Petitioners did not violate the statute as it was
written; they received no notice before entering either the drugstore or the
restaurant department. Indeed, they knew they would not receive any such
notice. Before entering the store, for they were invited to purchase everything
except food there. So far as the words of the statute were concerned, petitioners
were given not only no 'fair warning,' but no warning whatever, and their
conduct in Eckerd's Drug Store would violate the statute.5
15

The interpretation given the statute by the South Carolina Supreme Court in the
Mitchell case, note 2, supra, so clearly at variance with the statutory language,
has not the slightest support in prior South Carolina decisions. Far from
equating entry after notice not to enter with remaining on the premises after
notice to leave, those decisions emphasized that proof of notice before entry
was necessary to sustain a conviction under 16386. Thus in State v. Green,
35 S.C. 266, 14 S.E. 619 (1892), the defendant was apparently in possession of
the land when he was told to leave. Yet the prosecution was not for remaining
on the land after such notice but for returning later, and the court said, 'under
the view we take of this provision of our laws, when the owner or tenant in
possession of land forbids entry thereon, any person with notice who afterwards
enters such premises, is liable to punishment.' 35 S.C., at 268, 14 S.E., at 620.
In State v. Cockfield, 15 Rich.Law (S.C.) 53, 55 (1867), the court after quoting
the statute's provision (as it then read) that 'Every entry on the inclosed or
uninclosed lands of another, after notice from the owner or tenant, prohibiting
the same, shall be deemed a misdemeanor,' stated that this language 'will not
permit the Court to suppose that it was intended to have any other than the
ordinary acceptation.' See also State v. Mays, 24 S.C. 190 (1885); State v.
Tenny, 58 S.C. 215, 36 S.E. 555 (1900); State v. Olasov, 133 S.C. 139, 130
S.E. 514 (1925). In sum, in the 95 years between the enactment of the statute in
1866 and the 1961 decision in the Mitchell case, the South Carolina cases
construing the statute uniformly emphasized the notice-before-entry
requirement, and gave not the slightest indication that that requirement could be
satisfied by proof of the different act of remaining on the land after being told
to leave.

16

In holding in Mitchell that 'entry * * * after notice' includes remaining after

being asked to leave, the South Carolina Supreme Court did not cite any of the
cases in which it had previously construed the same statute. The only two South

Carolina cases it did cite were simply irrelevant; they had nothing whatever to
do with the statute, and nothing to do even with the general field of criminal
trespass, involving instead the law of civil trespasswhich has always been
recognized, by the common law in general and by South Carolina law in
particular, as a field quite distinct and separate from criminal trespass. Shramek
v. Walker, 152 S.C. 88, 149 S.E. 331 (1929), was an action for damages for an
assault and battery committed by a storekeeper upon a customer who refused to
leave the store after being told to do so; the defense was that the storekeeper
was entitled to use reasonable force to eject an undesirable customer. The
validity of such a defense was recognized, the court stating that 'while the entry
by one person on the premises of another may be lawful, by reason of express
or implied invitation to enter, his failure to depart, on the request of the owner,
will make him a trespasser and justify the owner in using reasonable force to
eject him.' 152 S.C., at 99100, 149 S.E., at 336. State v. Williams, 76 S.C.
135, 56 S.E. 783 (1907), was a murder prosecution in which the defense was
similarly raised that the victim was a trespasser against whom the defendant
was entitled to use force, and the court approved the trial judge's instruction
that a person remaining on another's premises after being told to leave is a
trespasser and may be ejected by reasonable force. 76 S.C., at 14 , 56 S.E., at
785.
17

Both cases thus turned wholly upon tort principles. For that reason they had no
relevance whatever, under South Carolina law prior to the Mitchell case, to 16
386 in particular or to criminal trespass in general. It is one thing to say that a
person remaining on another's land after being told to leave may be ejected
with reasonable force or sued in a civil action, and quite another to say he may
be convicted and punished as a criminal. The clear distinction between civil and
criminal trespass is well recognized in the common law. Thus it is stated, in 1
Bishop, Criminal Law, 208 (9th ed. 1923) that

18

'In civil jurisprudence, when a man does a thing by permission and not by
license, and, after proceeding lawfully part way, abuses the liberty the law had
given him, he shall be deemed a trespasser from the beginning by reason of this
subsequent abuse. But this doctrine does not prevail in our criminal
jurisprudence; for no man is punishable criminally for what was not criminal
when done, even though he afterward adds either the act or the intent, yet not
the two together.'

19

Unless a trespass is 'committed under such circumstances as to constitute an

actual breach of the peace, it is not indictable at common law, but it to be
redressed by a civil action only.' Clark and Marshall, Crimes (5th ed. 1952), at
607.6 There is no reason to doubt that, until the Mitchell case, this basic

distinction was recognized in South Carolina itself. In State v. Cargill, 2 Brev.

445 (1810), the South Carolina Supreme Court reversed a conviction for
forcible entry, saying
20

'If the prosecutor had a better right to the possession than the defendant, he
might have availed himself of his civil remedy. The law will not punish,
criminally, a private injury of this nature.

21

There must be, at least, some appearance of force by acts, words, or gestures, to
constitute the offence charged.' Id., 2 Brev. at 445. (Italics added.)

22

Under pre-existing South Carolina law the two cases relied on by the State
Supreme Court were thus completely unrelated, not only to this particular
statute, but to the entire field of criminal trespass. The pre-existing law gave
petitioners no warning whatever that this criminal statute would be construed,
despite its clear language and consistent judicial interpretation to the contrary,
as incorporating a doctrine found only in civil trespass cases.7

23

The Sou h Carolina Supreme Court in Mitchell also cited North Carolina
decisions in support of its construction of the statute. It would be a rare
situation in which the meaning of a statute of another State sufficed to afford a
person 'fair warning' that his own State's statute meant something quite
different from what its words said. No such situation is presented here. The
meaning ascribed by the North Carolina Supreme Court to the North Carolina
criminal trespass statutealso a ruling first announced in a 'sit-in' case of
recent vintagewas expressly based on what criminal trespass cases in North
Carolina had 'repeatedly held.' State v. Clyburn, 247 N.C. 455, 462, 101 S.E.2d
295, 300 (1958). As was demonstrated above, South Carolina's criminal
trespass decisions prior to Mitchell had 'repeatedly held' no such thing, nor had
they even intimated the attribution of such a meaning to the words 'entry * * *
after notice' in 16386. Moreover, if the law of other States is indeed to be
consulted, it is the prior law of South Carolina, not the law first announced in
Mitchell, that is consonant with the traditional interpretation of similar 'entry *
* * after notice' statutes by other state courts. Thus in Goldsmith v. State, 86
Ala. 55, 5 So. 480 (1889), the Alabama court construed 3874 of the Alabama
Code of 1887, imposing criminal penalties on one who 'enters * * * after
having been warned * * * not to do so,' and held that

24

'There must be a warning first, and an entry afterwards. One already in

possession, even though a trespasser, or there by that implied permission which
obtains in society, cannot, by a warning then given, be converted into a violator

of the statute we are construing, although he may violate some other law, civil
or criminal.' 86 Ala., at 57, 5 So., at 480481. 8
25

In Martin v. City of Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 865, 87 L.Ed.
313, this Court noted that 'Traditionally the American law punishes persons
who enter onto the property of another after having been warned by the owner
to keep off.' Section 16386 of the South Carolina Code is simply an example
of this 'traditional American law.' In construing such statutes, other state courts
have recognized that they apply only to 'entry onto' the property of another after
notice not to enter, and have not interpreted them to cover also the distinct act
of remaining on the property after notice to leave. The South Carolina Supreme
Court's retroactive application of such a construction here is no less inconsistent
with the law of other States than it is with the prior case law of South Carolina
and, of course, with the language of the statute itself.

26

Our conclusion that petitioners had no fair warning of the criminal prohibition
under which they now stand convicted is confirmed by the opinion held in
South Carolina itself as to the scope of the statute. The state legislature was
evidently aware of no South Carolina authority to the effect that remaining on
the premises after notice to leave was included within the 'entry after notice'
language of 16386. On May 16, 1960, shortly after the 'sit-in'
demonstration in this case and prior to the State Supreme Court's decision in
Mitchell, the legislature enacted 16 388 of the South Carolina Code,
expressly making criminal the act of failing and refusing 'to leave immediately
upon being ordered or requested to do so.' Similarly, it evidently did not occur
to the Assistant Chief of Police who arrested petitioners in Eckerd's Drug Store
that their conduct violated 16386, for when they asked him why they had
to leave the store, he answered, 'Because it's a breach of the peace * * *.' And
when he was asked further whether he was assisting the drugstore manager in
ousting petitione s, he answered that he was not, but rather that 'My purpose
was that they were creating a disturbance there in the store, a breach of the
peace in my presence, and that was my purpose.' It thus appears that neither the
South Carolina Legislature nor the South Carolina police anticipated the present
construction of the statute.

27

We think it clear that the South Carolina Supreme Court, in applying its new
construction of the statute to affirm these convictions, has deprived petitioners
of rights guaranteed to them by the Due Process Clause. If South Carolina had
applied to this case its new statute prohibiting the act of remaining on the
premises of another after being asked to leave, the constitutional proscription of
ex post facto laws would clearly invalidate the convictions. The Due Process
Clause compels the same result here, where the State has sought to achieve

precisely the same effect by judicial construction of the statute. While such a
construction is of course valid for the future, it may not be applied
retroactively, an more than a legislative enactment may be, to impose criminal
penalties for conduct committed at a time when it was not fairly stated to be
criminal. Application of this rule is particularly compelling where, as here, the
petitioners' conduct cannot be deemed improper or immoral. Compare
McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340.9
28

In the last analysis the case is controlled, we think, by the principle which
Chief Justice Marshall stated for the Court in United States v. Wiltberger, 5
Wheat. 76, 96, 5 L.Ed. 37:

29

'The case must be a strong one indeed, which would justify a Court in departing
from the plain meaning of words, especially in a penal act, in search of an
intention which the words themselves did not suggest. To determine that a case
is within the intention of a statute, its language must authorise us to say so. It
would be dangerous, indeed, to carry the principle, that a case which is within
the reason or mischief of a statute, is within its provisions, so far as to punish a
crime not enumerated in the statute, because it is of equal atrocity, or of kindred
character, with those which are enumerated. * * * '

30

The crime for which these petitioners stand convicted was 'not enumerated in
the statute' at the time of their conduct. It follows that they have been deprived
of liberty and property without due process of law in contravention of the
Fourteenth Amendment.

31

Reversed.

32

Mr. Justice GOLDBERG, with whom THE CHIEF JUSTICE joins, would,
while joining in the opinion and judgment of the Court, also reverse for the
reasons stated in the concurring opinion of Mr. Justice GOLDBERG in Bell v.
Maryland, 378 U.S. 286, 84 S.Ct. 1847.

33

Mr. Justice DOUGLAS would reverse for the reasons stated in his opinion in
Bell v. Maryland, 378 U.S. 242, 84 S.Ct. 1823.

34

Mr. Justice BLACK, with whom Mr. Justice HARLAN and Mr. Justice
WHITE join, dissenting.

35

This case arose out of a 'sit-in' demonstration which took place at Eckerd's Drug

Store in Columbia, South Carolina. The petitioners, two Negro college students,
went to the store, took seats in a booth in the restaurant department, and waited
to be served. The store's policy was to sell to Negroes as well as whites in all
departments except the restaurant. After petitioners sat down, a store employee
put up a chain with a 'no trespassing' sign attached. Petitioners nevertheless
continued to sit quietly in the booth. The store manager then called the city
police department and asked the police to come and remov petitioners. After
the police arrived at the store the manager twice asked petitioners to leave.
They did not do so. The Chief of Police then twice asked them to leave. When
they again refused, he arrested them both. They were charged with criminal
trespass in violation of 16386 of the South Carolina Code,1 tried in
Recorder's Court, and found guilty.2 On appeal the County Court in an
unreported opinion affirmed the convictions. Petitioners then appealed to the
Supreme Court of South Carolina, which likewise affirmed over petitioners'
objections that by convicting them the State was denying them due process of
law and equal protection of the laws as guaranteed by the Fourteenth
Amendment. 239 S.C. 570, 124 S.E.2d 332. This Court granted certiorari to
consider these questions. 374 U.S. 805, 83 S.Ct. 1690, 10 L.Ed.2d 1030.
36

It is not contradicted that the store manager denied petitioners service and asked
them to leave only because of the store's acknowledged policy of not serving
Negroes in its restaurant. Apart from the fact that they remained in the
restaurant after having been ordered to leave, petitioners' conduct while there
was peaceful and orderly. They simply claimed that they had a right to be
served; the manager insisted, as the State now insists, that he had a legal right
to choose his own customers and to have petitioners removed from the
restaurant after they refused to leave at his request. We have stated today in
Bell v. Maryland, 378 U.S. 318, 84 S.Ct. 1814, our belief that the Fourteenth
Amendment does not of its own force compel a restaurant owner to accept
customers he does not want to serve, even though his reason for refusing to
serve them may be his racial prejudice, adherence to local custom, or what he
conceives to be his economic self-interest, and that the arrest and conviction of
a person for trespassing in a restaurant under such circumstances is not the kind
of 'state action' forbidden by the Fourteenth Amendment. Here as in the Bell
case there was, so far as has been pointed out to us, no city ordinance, official
utterance, or state law of any kind tending to prevent Eckerd's from serving
these petitioners had it chosen to do so. Compare Robinson v. Florida, 378 U.S.
153, 84 S.Ct. 1693, Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10
L.Ed.2d 338; Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10
L.Ed.2d 323. On the first question here raised, therefore, our opinion in Bell v.
Maryland is for us controlling.

37

Petitioners also contend that they were denied due process of law either
because their conviction under the trespass statute was based on no evidence to
support the charge, cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct.
624, 4 L.Ed.2d 654, or because that statute as applied was so vague and
indefinite that it failed to urnish fair warning that it prohibited a person who
entered the property of another without notice not to do so from remaining after
being asked to leave, cf. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct.
680, 9 L.Ed.2d 697; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84
L.Ed. 1213; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.
Under the State Supreme Court's construction of the statute, it is clear that there
was evidence to support the conviction. There remains to be considered,
therefore, only the vagueness contention, which rests on the argument that
since the statutory language forbids only 'entry upon the lands of another * * *
after notice * * * prohibiting such entry,' the statute cannot fairly be construed
as prohibiting a person from remaining on property after notice to leave. We
voted to sustain a Maryland trespass statute3 against an identical challenge in
Bell v. Maryland, supra. While there is some difference in the language of the
South Carolina and Maryland statutesthe Maryland statute prohibited
entering or crossing over the lands of another after notice not to do so, while
South Carolina's statute speaks only of entry and not of crossing over this
distinction has no relevance to the statute's prohibition against remaining after
being asked to leave. In holding that the South Carolina statute forbids
remaining after having been asked to leave as well as entry after notice not to
do so, the South Carolina courts relied in part on the fact that it has long been
accepted as the common law of that State that a person who enters upon the
property of another by invitation becomes a trespasser if he refuses to leave
when asked to do so. See, e.g., Shramek v. Walker, 152 S.C. 88, 149 S.E. 331
(1929); State v. Williams, 76 S.C. 135, 142, 56 S.E. 783, 785 (1907); State v.
Lazarus, 1 Mill Const. 34 (1817). We cannot believe that either the petitioners4
or anyone else could have been misled by the language of this statute into
believing that it would permit them to stay on the property of another over the
owner's protest without being guilty of trespass.

38

We would affirm.

That section provides: 'Entry on lands of another after notice prohibiting same.
Every entry upon the lands of another where any horse, mule, cow, hog or any
other livestock is pastured, or any other lands of another, after notice from the
owner or tenant prohibiting such entry, shall be a misdemeanor and be punished
by a fine not to exceed one hundred dollars, or by imprisonment with hard labor

on the public works of the county for not exceeding thirty days. When any
owner or tenant of any lands shall post a notice in four conspicuous places on
the borders of such land prohibiting entry thereon, a proof of the posting shall
be deemed and taken as notice conclusive against the person making entry as
aforesaid for the purpose of trespassing.'
2

This construction of the statute was first announced by the South Carolina
Supreme in City of Charleston v. Mitchell, 239 S.C. 376, 123 S.E.2d 512,
decided on December 13, 1961, certiorari granted and judgment reversed, 378
U.S. 551, 84 S.Ct. 1901. In the instant case and in City of Columbia v. Barr,
239 S.C. 395, 123 S.E.2d 521, reversed, 378 U.S. 146, 84 S.Ct. 1734, the South
Carolina Supreme Court simply relied on its ruling in Mitchell.

See also McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75
L.Ed. 816; United States v. Cardiff, 344 U.S. 174, 176177, 73 S.Ct. 189, 190,
97 L.Ed. 200; Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 239, 86
L.Ed. 226.

Thus, it has been said that 'No one can be criminally punished in this country,
ex ept according to a law prescribed for his government by the sovereign
authority before the imputed offence was committed, and which existed as a
law at the time.' Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27
L.Ed. 506. See Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162; Cummings v.
Missouri, 4 Wall. 277, 325326, 18 L.Ed. 356.

We think it irrelevant that petitioners at one point testified that they had
intended to be arrested. The determination whether a criminal statute provides
fair warning of its prohibitions must be made on the basis of the statute itself
and the other pertinent law, rather than on the basis of an ad hoc appraisal of
the subjective expectations of particular defendants. But apart from that, he
record is silent as to what petitioners intended to be arrested for, and in fact
what they were arrested for was not trespass but breach of the peaceon which
charge they were not convicted. Hence there is no basis for an inference that
petitioners intended to be arrested for violating this statute, either by remaining
on the premises after being asked to leave or by an other conduct.

Accord, Krauss v. State, 216 Md. 369, 140 A.2d 653 (1958); 2 Wharton,
Criminal Law and Procedure, 868 (1957); Hochheimer, Law of Crimes and
Criminal Procedure, 327329 (2d ed.).

Indeed, it appears that far from being understood to incorporate a doctrine of

civil trespass, 16386 is considered in South Carolina not to incorporate any
common law of trespass, either criminal or civilin other words, not to be a
'trespass' statute at all. South Carolina has long had on its books, side by side

with 16386, a statute that does deal eo nomine with 'trespass'; 16382
makes it unlawful to 'wilfully, unlawfully and maliciously * * * commit any * *
* trespass upon real property in the possession of another * * *.' When South
Carolina in 1960 enacted legislation dealing specifically with a refusal to leave
upon request (thus filling the gap which the South Carolina Supreme Court has
filled by judicial construction in Mitchell and in this case), it apparently gave
express recognition to the distinction between the two statutes, declaring that
'The provisions of this section shall be construed as being in addition to, and not
as superseding, any other statutes of the State relating to trespass or entry on
lands of another.' South Carolina Code of 1962, 16388. Thus it would seem
that 16386 is regarded by state law as dealing not with 'trespass,' but rather
with the distinct offense of 'entry on lands of another' after notice not to enter.
The contention that the statute was understood to incorporate a doctrine of civil
trespass law is therefore all the more untenable.
8

See Pennsylvania R. Co. v. Fucello, 91 N.J.L. 476, 477, 103 A. 988 (1918);
Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678, 146 A.L.R. 648
(1943); Brunson v. State, 140 Ala. 201, 203, 37 So. 197, 198 (1904).

See Freund, 4 Vand.L.Rev., supra, at 540: 'In applying the rule against
vagueness or overbroadness something * * * should depend on the moral
quality of the conduct. In order not to chill conduct within the protection of the
Constitution and having a genuine social utility, it may be necessary to throw
the mantle of protection beyond the constitutional periphery, where the statute
does not make the boundary clear.'

Section 16386, Code of Laws of South Carolina, 1952 (1960 Supp.),

provides:
'Entry on lands of another after notice prohibiting same. Every entry upon the
lands of another where any horse, mule, cow, hog or any other livestock is
pastured, or any other lands of another, after notice from the owner or tenant
prohibiting such entry, shall be a misdemeanor and be punished by a fine not to
to exceed one hundred dollars, or by imprisonment with hard labor on the
public works of the county for not exceeding thirty days. When any owner or
tenant of any lands shall post a notice in four conspicious places on the borders
of such land prohibiting entry thereon, a proof of the posting shall be deemed
and taken as notice conclusive against the person making entry as aforesaid for
the purpose of trespassing.'

Both petitioners were also charged with breach of the peace in violation of 15
909, Code of Laws of South Carolina, 1952, but were not convicted.
Petitioner Bouie in addition was charged with and convicted of resisting arrest;

that conviction was affirmed by the County Court but reversed by the State
Supreme Court for insufficiency of evidence.
3

Md.Code, Art. 27, 577.

The petitioners testified that they had agreed the day before to 'sit in' at the
drugstore restaurant. One petitioner said that he had intended to be arrested; the
other said that he had the same purpose 'if it took that.'