The opinion
JOHNSON, Judge
(dissenting).
The complaint filed in the circuit court by the City’s attorney charges that appellant “did take part or participate in a parade or procession on the streets of the City without having secured a permit therefor from the commission, contrary to and in violation of Sec. 1159 of the General City Code of Birmingham of 1944.”
The evidence, as introduced by the City, tended to show that during the afternoon of Friday, April 12, 1963, approximately 52 persons, most of whom were Negroes, departed from a church in the 1400 block of 6th Avenue North in Birmingham, grouped “in formation” on the sidewalk in front of the church, and then walked “in formation” along the sidewalks for several blocks. Their route followed east from the church along 6th Avenue North to 17th Street, then south along 17th Street one block to 5th Avenue North, and then east again along 5th Avenue North towards 18th Street. They were stopped by a policeman in the middle of the block between 17th and 18th Streets. “Spectators” lining the route fell in behind and followed the group in formation as they passed by. This crowd of “spectators” — consisting of several hundred persons — did not walk in formation and ■ had no discernible organization. There were also a number of photographers present. The appellant, who is a preacher, left the church with the people who walked in ' formation. He was observed entering the church wearing a business suit, and when he left the church he was wearing a black shirt and “bluejean” trousers. Rev. Martin Luther King and Rev. A. B. Abernathy led the group in formation. They were dressed in attire similar to that worn by appellant. The group in formation sang and clapped hands as they proceeded along the sidewalk, but were otherwise orderly. No permit was issued for a parade or procession to be held on April 12,1963. There is no evidence concerning whether anyone applied for such permit.
Police Officer R. N. Higginbotham, a witness for the City, was at 5th Avenue North and 18th Street when he first observed the alleged parade or procession. He testified that the group in formation turned on to 5th Avenue from 17th Street • and proceeded east on the sidewalk on the north side of 5th Avenue, that this group was marching four to six abreast “all the way across the sidewalk”, and that he stopped them in the middle of the block between 17th and 18th Streets. He stated that the crowd following the group in formation was in the center of the street, and also that he observed appellant in the group in formation, in the “third or fourth row back.”
Police Officer Edward Ratigan, a witness for the City, testified that he followed the alleged parade or procession from the church on 6th Avenue to where it was stopped on 5th Avenue; that the group in formation consisted of 52 persons marching two abreast, approximately forty inches apart; and that this formation persisted until the group was stopped. He further stated that appellant was at no time in line with a partner in the marching group but was walking along side the group talking to' them, and giving them encouragement. Police Officer Herman Evers testified that appellant was “bounding from the front to the rear” of the marching group “waving *98 his arms tó come on, telling them to come on.”
Appellant’s evidence consists of the testimony of five witnesses, including himself. His evidence tends to. show that approxi.mately 52 persons left the church on 6th Avenue North and walked two abreast on the sidewalks for several blocks; that appellant left the church with the group and walked a few block’s in the same direction; that he was not walking with a partner- in this group but was walking at times beside the group, counseling them to be quiet and orderly; that he also tried to prevent bystanders or spectators from joining the marching group; and that he left the scene before any of the group in formation was arrested. Appellant referred to the group in formation as “marchers.”
Appellant contends that the court erred in overruling his motion to exclude the City’s evidence because (1) there is no evidence of a parade or procession, (2) assuming arguendo there was a parade or procession, it occurred on the sidewalk and not in the streets as alleged in the complaint, and (3) there is no evidence that appellant took part or participated in such parade or procession.
The statute does not attempt to define a parade or procession. Parade is defined in Webster’s New International Dictionary, Second Edition, as follows:
“Any march or procession; esp. a formal public procession; the movement of any body marshalled in something like military order; as, a parade of firemen; a circus parade.”
Procession is defined in Webster’s New International Dictionary, Second Edition, as follows:
“A group, esp. of persons or of vehicles containing persons, moving onward in an orderly, ceremonious, or solemn parade; as a religious procession; to go in procession to the capítol; to form a procession.”
In Cox v. State of New Hampshire, 312 U.S. 569 , 61 S.Ct. 762 , 85 L.Ed. 1049 , the Supreme Court of the United States had before it the question of whether a group of fifteen to twenty members of a religious sect marching along the sidewalk in single file carrying placards constituted a “parade or procession” within the meaning of a New Hampshire Statute prohibiting a parade or procession without a license. The question was answered in the affirmative by a unanimous court. Chief Justice Hughes, speaking for the court, stated:
“There appears to be no ground for _ challenging the ruling of the state court that appellants were in fact engaged in a parade or procession upon the public streets. As the state court observed: ‘It was a march in formation, and its advertising and informatory purpose did -not make it otherwise. * *• * It is immaterial that its tactics were ■ few and simple. It is enough that it proceeded in an ordered and close file as a collective body of persons on the . city streets’(Emphasis added.)
Here, the City’s evidence establishes that a substantial number of persons, upon leaving the same church at the same time, gathered in formation in front of that church and while maintaining formation marched on the sidewalks along the streets for several blocks, two to six abreast. They were singing and clapping • their hands. The group was led and directed by ministers or preachers. The marchers attracted a crowd of spectators, and some photographers. This evidence established, in my opinion, a common intent to march on the streets as an organized, collective body of persons. It was a movement of a body of persons marshalled in something like military order. It was a “parade or procession” within the meaning of Section 1159, supra.
Appellant’s contention that the parade or procession did not occur in the street is without merit. A look at Section 2 of the General City Code of Birmingham of 1944 *99 discloses an intent to treat sidewalks as part of the streets. Section 2 reads in part:
“Sec. 2. Definitions and rules of construction.
“In the construction of this code and of all ordinances, the following definitions and rules shall be observed, unless the context clearly requires otherwise.
“Sidewalk: The term ‘sidewalk’ shall mean that portion of a street between the curb line and adjacent property line.”
In common parlance, a “sidewalk” is the part of a street assigned to the use of the pedestrians. Smith v. City of Birmingham, 42 Ala.App. 467 , 168 So.2d 35 .
A parade or procession may be held on the sidewalk as well as that part of the street set aside for vehicular traffic. See Cox v. State of New Hampshire, supra. Sec. 1159, supra, prohibits a parade or procession on any portion of the street, including the sidewalk.
The evidence clearly establishes that appellant took part or participated in the parade or procession. If we reject the testimony of Officer Higginbotham to the effect that appellant was in the group in formation, which I do not, the testimony of other police officers to the effect that appellant walked beside the marching group giving them instructions is sufficient to establish that he participated in the parade or procession. One who assumes duties similar to a drill sergeant in a military parade, as did appellant, takes part or participates in a parade or procession.
Appellant contends that Section 1159 “vests in the commission the power to restrain free expression without establishing reasonable standards for the use of such power,” and therefore violates the First Amendment to the United States Constitution, which is'protected against state action by the Fourteenth Amendment.
Although the right to engage in a parade is one phase of the exercise of the fundamental right of free speech and assembly, such right is subject to reasonable and non-discriminating regulation and limitation.
In Cox v. State of New Hampshire, supra, Chief Justice Hughes wrote:
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintain public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where'a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. * * * As regulation of the use of the streets for parades and processions is a tradi- . tional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.”
In Kuntz v. People of State of New York, 340 U.S. 290 , 71 S.Ct. 312 , 95 L.Ed. 28 , Mr. Justice Jackson wrote that “[cjities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes.” Ordinances of this character have been in effect in most municipalities of *100 Alabama for many years. The authority to enact such ordinances is given by Section 455, Title 37, and Section 654, Title 62, Code of Alabama 1940.
It is the duty of this Court not to strike down a city ordinance as unconstitutional if by a reasonable construction it can be given a field of operation within constitutional limits. See City of Mobile v. Coffin, 28 Ala.App. 243 , 181 So. 795 . Where an ordinance is susceptible of two constructions, one of which will defeat the ordinance and the other will support it, the latter construction will be adopted. Birmingham Ry., Light & Power Co. v. Kyser, 203 Ala. 121 , 82 So. 151 . A municipal ordinance must be construed with a view towards the purpose for which it was adopted. City of Birmingham v. Mauzey, 214 Ala. 476 , 108 So. 382 .
I think it is obvious that this ordinance— Section 1159 — was not designed to suppress in any manner freedom of speech or assembly, but to reasonably regulate the use of the streets in the public interest. It does not seek to control what may be said on the streets, and is applicable only to organize formations of persons, vehicles, etc., using the streets and not to individuals or groups not engaged in a parade or procession. The requirement that the applicant for a permit state the course to be travelled, the probable number of persons, vehicles and animals, and the purpose of the parade is for the purpose of assisting municipal authorities in deciding whether or not the issuance of a permit is consistent with traffic conditions. Thus, .the required information is related to .the proper regulation of the use of the streets, and the fact that such information is required indicates that the power given the licensing authority was not to be exercised arbitrarily or for some purpose of its own. The requirement that the applicant state the purpose of the parade or procession does not indicate an intent to permit the Commission to act capriciously or arbitrarily. The purpose may have a bearing on precautions which should be taken by municipal authorities to protect parades or the general public.
Section 1159, supra, provides that the Commission shall issue a permit “unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.” I do not construe this as vesting in the Commission an unfettered discretion in granting or denying permits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfort and convenience in the use of the streets by the general public. The standard to be applied is obvious from the purpose of the ordinance. .It would be of little or no value to state that the standard by which the Commission should be guided is safety, comfort and convenience of persons using the streets, and, due to varying traffic conditions and the complex problems presented in maintaining an orderly flow of traffic over the streets, it would be practically impossible to formulate in an ordinance a uniform plan or system relating to every conceivable parade or procession. The members of the Commission may not act as censors of what is to be said or displayed in any parade. If they should act arbitrarily, resort may be had to the courts. It is reasonable to assume from the facts in this case that the Commission would have granted appellant a permit to engage in the parade if such permit had been sought. A denial would have been warranted only if after a required investigation it was found that the convenience of the public in the use of the streets at the time and place set out in the application would be unduly disturbed.
My conclusions are fully sustained by the decision in State v. Cox, 91 N.H. 137 , 16 A.2d 508 . In that case the court was called upon to determine the constitutionality of a state statute prohibiting a parade or procession on the streets without a permit from local authorities. The statute did not set out a standard for granting or refusing the permit. The court overruled the de *101 fendant’s contention that the statute vested unfettered control in the licensing authorities. In answering this contention, the court said:
“[T]he act is implicit in its requirement that the licensing authority act reasonably in granting or denying licenses, and with reference to the object of public order on the public ways. If it does not in express terms ‘make comfort or convenience in the use of streets * * * the standard of official action’ (Hague v. Committee for Industrial Organization, 307 U.S. 496, 516 , 59 S.Ct. 954, 964 , 83 L.Ed. 1423 ), the necessary inference is that it does, based upon the presumption in favor of the validity of legislation as reenforced by the expqress provision of the act bestowing ‘delegated powers’ upon the authority, as a grant intended to be only of due legislative power which may properly be delegated. The discretion thus vested in the authority is limited in its exercise by the bounds of reason, in uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways is the statutory mandate. The licensing authority has no delegation of power in excess of that which the legislature granting the power has, and the legislature attempted to delegate no power it did not possess.”
The United States Supreme Court, in a unanimous decision, held that the statute, as construed by the Supreme Court of New Hampshire, violated no federal constitutional rights of the defendants. Cox v. State of New Hampshire, supra.
The construction adopted by the Supreme Court of New Hampshire is sound. I would place the same construction upon the ordinance here for review.
There is nothing in the record before us tending to show that the ordinance has been applied in other than a fair and nondiscriminatory manner. I cannot agree that this case, coupled with Primm v. City of Birmingham, 42 Ala.App. 657 , 177 So.2d 236 , and the two cases decided on authority of Primm constitutes a pattern of enforcement. No violation of Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 , has been argued, nor does such violation appear from the record or extrinsically.
So evanescent are the issues in the majority opinion, I most respectfully dissent.