Appendix — Shuttlesworth v. City of Birmingham

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APPENDIX, ~" . *

Opinion of the Supreme Court ‘st Alabama on

THE SUPREME couRT OF ALABAMA

THE Stare OF Axapanta—JUDICUL Paes,

QcropER TERM 1967-68

Noverffher 9, 1967. -

*.6 Div. 91 2. ° oe ee pea

Ex parte City of Birmingham ©

In re Frep L. Suisrtaswonrs

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Crry oF BrmMincHam.

4 | PETITION FOR CERTIORARI TO COURT OF APPEALS

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| Lawsox, Justice. nets) ®

Fred L. Shuttlesworth was convicted in the Woorder’s . .

Court of the City of Birmingham of parading: without: a

permit in violation of §1159 of the General City Code of

Birmingham, hereinafter referred to as $1159, which reads:

“Tt shall‘ be unlawful to’ organize or hold, or to as- ‘

sist in organizing or holding, or to take part of par- °

ticipate in, any parade or procession or other public

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- demonstration on the streets or other public ways of

the city,"unless a permit therefor has been. secured

from the commission. = «~ . | Le ie

“To secure such permit; written application shall be

made .to the commission, setting forth the probable: |

- number of persons, vehicles and animals which will”

be engaged in such parade, procession or other public

demonstration, the purpose \for. which it is to be held:

_ or had, and the streets or‘other public ways over, along

or in which it is desired to/have or hold such parade,

procession or other public demonstration. The com- \_

mission shall grant: a written permit ‘for such parade, :

procession or other public demonstration, prescyibing ~

the streets or other public ways which may be used

therefor, unless in its judgment the public welfare,

peace, safety, health, decency, good order, morals or

convenience require that it be refused. It shall be un-

lawful to use for such purposes any other streets or

- public ways than those set out in said permit. |

“Fhe two preceding paragraphs, —> shall not

apply to funeral processions.” xé

The word Coommission” as.used in §1159 refers to the

governing body of the City of Birmingham. i

Following his ‘conviction in the essence’ Buit :

_ Shuttlesworth appealed to the Circuft Court of J rt of Jefferson

County, where there was a de novo trial before ¢ a jury.:’

' The jury found Shuttlesworth guilty and the trial court,

after rendering a jydgment in accordance with the verdict |

of the jury, sentenced Shuttlesworth to pay a fine of $75

and to perform ninety days hard labor for the City of

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| fkiniGesworth then appealed to the Court of Appeals, of

Alabama which court, in a two-to-one decision, revérsed .

the judgment of the Circuit Court of Jefferson County and’

rendered a ‘judgment ‘discharging Shuttlesworth “sine die.”

Fudge Cates wrote the majority. opinion, in which Presid-

ing Judge Price concurred. Judge J ohnson dissented.— -

Shuttlesworth v. City of Birmingham, 43 Ala. ‘App. 68, 180

So. 2d 114. / “*

The City of Birmifigham filed petition i in this court for a-

writ of certiorari to review and revise. the opinion and

judgment of the Court of Appeals. We granted the writ.

While we are not altogether éertain as to the exact rea- ~

sons why the majority of the Court of Appeals concluded .

that Shuttlesworth’s conviction should be reversed and that

he should be discharged sine die, we will treat that opition’

as holding that §1159 is void on its face because of over-

broad and consequently meaningless standards for the issu-

ance of permits for parades or processions; that said sec-

tion has been enforced. by the City of Birmingham in-suclt

- a way as to make it unconstitutional under the holding of

the Supreme Court. of the United States in Yick Wo vy.

Hépkins, 118 U. S. 356, 6S. Ct. 1064, 30 L. Ed. 220; that

the ‘evidence adduced by the City of Birmingham in the

trial:in the circuit court was insufficient to present a jury

question as to whether Shuttlesworth had, in fact, been

engaged in a parade, procession or other public _demon-

stration-in the streets or other public ws ways of the City of

Birmingham without first alt obtained a permit as re- .

quired by §1159. |

in view of the fact that ies was a a dissenting opinion,

we have gone to the original record to determine the facts. .

The majority opinion of the Court of Appeals does not |

contain a complete statement. of the facts. However, the |

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dissenting inlsion” of Judge-Johnson contains : rather

lengthy recitation of the facts and our examination of the

original record shows that the facts as stated in the dis-

senting opinion are fully supported by the record. :

The dissenting opinion, unlike the majority opinion of

the Court of Appeals, takes cognizance of the rule sogoften

stated by the’ appellate courts of this state, to the effect

that it is the duty of courts not to strike down a city ordi-

_ nance or a statute as unconstitutional, if by. reasonable con-

: struction it can be given a field of eperation within con-

stitutional limits and that where a statute or ordinance is

susceptible of two constructions, one of which will defeat

the ordinance or statute and the other will uphold it, the

latter construction will be adopted.

With that rule in mind, Judge Johnson le to con-

strue §1159, saying: '

“T think it is obvious that this ordinance—Section

1159—was not designed to suppress in any. manner

freedom of speech or assembly, buf to reasonably regu-

late the. use of the streets in the public interest. It

does not seek to control. wh&t may. be said on the.

streets, and is applicable only to organize [sic] for- -

‘mations of persons, vehicles, ete., 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 pur-

_ pose 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 condi-

_tions._ Thus, the required information’ is related to the

proper régulation of the.use of the streets, and the

fact that such information is required indicates that

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' 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 arbi-

trarily. The purpose may have a bearing on precau- .

tions which should be taken by municipal. authorities ,

to protect parades or the general public.

>: “Section 1159, supra, provides that the Ciciadaatis

. Shall issue a permit ‘unless in its judgment the public

welfare, peace, safety, health, decency, good order;

‘morals or convenience<¥equire that it be refused.’ -I do

not construe this as vesting in the Commission an un-

fettered 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 Commis-

sion should be guided is safety} comfort and conven-—

_ lence of persons using’ the streets, and, due to varying ~

. traffic conditions and the complex problems presented

in maintaining an orderly flow ‘of traffic over ‘he

streets, it would be practically impossible to formu-

late in an ordinanee a uniform. plan or system relat. .

ing to every conceivable parade .or procession. The |

. members of the Con ommission 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 té assume from the facts in

this case that the Commission would have iia ai

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ranted only if after a required investigation it was

_ found that the conveniencé of the public in the use

' of ‘the streets at the time and place sét out in the

application would be unduly disturbed” (180 So: 2d,

144). > ,

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_ We agree with and aflopt the construction which J udge

_ Johnson has placed on §1159 and we agree-with his obser-

vations to the effect that such construction finds support

in the case of State v. Cox, 91 N. H. 137, 16 ‘Atl. 2d 508,

which case wag affirmed, in a unanimous decision, by the

United. States Supreme Court.—Cor v. State of New —

-. Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049.

The New Hampshire Supreme Court, as is pointed out

in J udge Johnson’s dissenting opinion, was called upon to

_determine.the constitutionality of a state statute prohibit- -

ing,-among other things, a parade or procession on the

streets without a permit from local authorities. The New

Hampshire statute did not sét out a standard for granting

_ or refusing the permit. The language of the New Hamp-

shire court answering the assertion that-the ‘statute under

consideration vested unwarranted contral. i in the licensing

authorities is quoted in Judge, Johnson’s opinion and will

_ not be repeated ‘here, .

' In the New Hampshire case, the marchers were divided

- . into four or five groups, each composed of about fifteen

to twenty persons. Each group. proceeded to a different

_ part of the business district of the City of Manchester and

_then lined up in a single-file formation and marehed along

‘sidewalks of the city in such a formation. The marchers

-earried banners and “distributed leaflets announcing a

- pellant a permit to engage in the parade if such per- .

- ‘mit had been sought. A denial would have been war-.

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pon ot to be held at a later time where a talk: on govern-

_ marchers had no permit. ‘Despite the fact that the marchers

were carrying banners and distributing leaflets as well as

marching, their conviction ‘of parading without a permit

was affirmed by the Supreme Court of New — —

_ State v. Cox, supra.

In affirming the judgment of the Supreme Court of New

Hampshire, the Supreme Court of the United States in

; Coz v. New Hampshire, supra, said i in part as follows :. i.

“The sole charge against appellants was that: they -

were ‘taking part in a parade or procession’ on public

streets without a permit as the statute required. They

‘ -were not prosecuted for distributing léafiets, or for

conveying information by .placards or otherwise, or

for issuing invitations to a public meeting, or for hold-

ing a public meeting, or for maintaining or express-

ing religious beliefs. .Their right to -do any one of

these things apart from engaging in a-‘parade or pro-

cession’ upon a public street is not here involved and

ment. would be given ‘to the public free of charge. The |

the question of the validity of an ordinance addressed:

to any other sort of conduct: than that: “complained of

is not before us.

“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 pur-

pose did not make it otherwise... . It i is inhmaterial a

that its tactics were few and simple. It is endugh that

it proceeded in an ordered and close file as a collective

. . body of persons on the city streets.’

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| “If a municipality has authority to control the use —

+ -~ of its publie streets for parades or processions, as. it

| undoubtedly has, it cannot be denied authority to give

consideration, without unfair. discrimination, to time,

_ place and manner in relation to the other proper uses

of the streets.. We find it impossible to say that the

limited authority conferred by the licensing provisions

of ‘the statute in question as thus construed by the -

state epurt contravened any constitutional right” —

US., 573-576).

We would like to point out that we do set construe 1159

as conferring upon the “commission” of the City of Bir-

taingham the right to refuse an application for a permit

to carry on a parade, procession or other public demonstra-

tion solely on the ground that such activities might tend

to provoke disorderly conduct. See Edwards v. South Caro-

lina, 372 U. S. 229, 83S. Ct: 680, 9 L. Ed. 2d 697.

_ We-also hold that under §1159 the: Commission is with-

out authority to act in an arbitrary manner or with un-

- fettered discretion in regard to the issuance of permits. Its

_ discretion must be exercised with- 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 streets and sidewalks must ‘be followed. Applica-

‘tions for permits to parade must be granted 7?f, after an’

investigation it is found that the convenience of the public

‘~4n the use of the. streets or sidewalks would not wraaees 4

be unduly disturbed.

‘Since the Court of Appeals of ‘Alabama rendered its deci-

sion and judgment in the case here under review, the Su-

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‘preme Court of the United States rendered a decision in a

case wherein $1159 was involved. See Wyatt Tee Walker

v. City of Birmingham, decided by the Supreme Court of. —

the United States on June 12, 1967, 388 U. S. 307, 87 S. Ct.

1824, —. L. Ed. ‘2d ——. Application: for rehearing was

denied on October 9, 1967. The Walker | case, supra, was in .

the Supreme Court of. the United States on writ of cer-

tiorari to review: the opinion and judgment of this. court

in the.case of Walker et al. v. City of Birmingham, 279 Ala,

53, 181 So. 2d 493, wherein we affirmed the conviction of

Walker and several others, including Shuttlesworth, of

criminal contempt for violating a temporary injunction .

“issued by the Cireuit Court of Jefferson County, in Equity,

which enjoined Walker, Shuttlesworth and others from en-

gaging in, sponsorjig, inciting or encouraging mass, street

parades or mass processions or mass demonstrations. with-’

out a permit. The injunction enjoined the respondents ~

from carrying on other activities which we do not think

necessary to comment on here. In our ‘case of Walker et al.

v. City of Birmingham, 279 Ala. 53, 181 So. 2d 493, we did

not expressly pass on the constitutionality of §1159, al-

though the petitioners, that is, Walker, Shuttlesworth and

others, asserted that said §1159 is void because it violates

the First and Fourteenth Amendments to the Constitution

of the United States. Based on that premise, the said peti-

tioners also argued that the temporary injunctign was void

as a prior restraint on the constitutionally protected rights

of freedom of speech and of assembly.

‘ Our affirmance of the criminal contempt convictions was

based on the principle “that the circuit court had the duty

and authority, in the first instance, to. determine the va-

lidity of the ordinance, and, until the decision, of the circuit -

court is reversed for error: by orderly review, either by the

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circuit court or a higher. court, the orders of -the circuit

court based on its decision are.to be- respected and dis- ~

../ Obedience of them is contempt of its. lawful authority; to

be punished. Howat v. State of Kansas, 258 Uz S. 181, 42

S. Ct.-297, 66 L. Ed, 550.”

As we have heretofore indicated, the Supreme. Court of

the United Statds on June 12, 1967, affirmed our judgment

in Walker et "i v. City of Birmingham, 279 Ala. 53, 181 -

So. 2d 483. The Supreme Court of the United States di- ©

vided five to four. It appears from the Court’s ‘opinion, '

written:by Mr. Justice Stewart, and from the opinions of

the dissenting Justices, that.the petitéoners in the Supreme

- Court of the United States again asserted that etal

_ -yoid on its face. The dissenting J ustices exp d t

* swiew that §1159 i is unconstitutional on its face. © ~

However, the majority of the Court, as then constituted,

‘+ did @bt hold that §1159 is void on its face. The “Court’s

. opinieh contains the following: language:

_ €The_ generality of ‘the language contained in the

Birmingham parade ordinante (§1159] upon which .

the. injunction was based would unquestionably raise

3 substantial constitutional issues concerning some of

its provisions. Schneider y. State, 308 U. S. 147, 60

. &. Ct. 146, 84 L. Ed. 155; Saia v. People of State of

New York, 334 U. S. 558, 68 S. Ct. 1148, 92 L. Ed.

1574; Kunz v. People of State of New York, @ U.S.

290, 71 S. Ct. 312, 95 L. Ed. 280. The petitioners, how-

eyer, did not even attempt to apply to the Algbama

. eourts for-an authoritative construction of the .ordi-

-” "nance. Had they done so, those courts might have given

the licensing authority granted in the ordinance a nar-

row and precise scope,:as did the New Hampshire

- Courts in Cox v. New Hampshire [312 U. S, 579, 71

; ¥

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‘Ct. 762, 85 L. Ed. “10493 énd Pouiloa Nv. New ‘Hamp:

" shire. [345 Uh S- 895, "73 S. Ct. 760, 97 L. Kd. 1105],

-both,gupra. Cf. Shuttlesworth v. City of Birmingham,

382. U. S. 87, 91, 86 S. Ct. 211; 213, 15 L. Ed. 2d 176;

City of Darlington v. ‘Stanley, 239 S. Ct, 139, 122 8. E.

'+2d°207. Here, just as in Cox and Poulos, it could not

be assumed ‘that’ the ordimance was void on its face.”

_CBmphiasis verptet) ed S. ‘Ct., 1830) z 4

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The language which we hive high italicized seems * ab

‘to be in-direct conflict. with the conclusion reached in the .°

a majority | opinion of the alana of Appeals of Alabama here

. under review. ‘

_ We are of the opinion that fhe. construction which Judge.

' Johnson placed on §1159 in his dissenting opinion, which

we have in effect adopted, together’ wit the’ construction

- which we have placed on §1159 in this o inion, requires a

reversal of the judgment ‘of the Court of Appeals Gere

‘under review.—Coz v. New Hampshire, 312 U. S, 569, 61

S. Ct. 762; 85 L. Ed: 049; Walkér et al. v. City of Birming- -

ham, 388 U. S. 307, 87'S. Ct. 1824, —- Ly Ed. 24 —..

We hold that §1159 is ‘not.void on its face and. that under

the construction which we have placed on that section, it °

did not deprive Shuttlesworth of any right°guaranteed to

him under the First and Fourteenth. Amendments - the

Constitution of the United States. ,

. We are also in agcord with the conclusion reached by

J udge- -Johnson in his dissenting opinion to the effect that

‘there is nothing in the record before us tending to show °

that$1159 has been applied i in ‘osher ‘than a fair and non-

‘discriminatory fashgon. The record before us, shows no

violation of Yick Wo v. Hopkins, 118 U. 8. 356, 6 S. Ct

1064, 30 L. Ed: 220. . _

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The petitioners in ier ease of Wyatt Tee Walker et al. ,

v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824, ——

L. Ed 2d , decided by the Supreme Court of the

United States on June 12, 1967, asserted: that .they were

free to disobey the injunction. beeause §1159, on which the

injunction was based, had been administered in an arbi-

trary and discriminatory fashion. In suppart of that. con-

‘tention those petitioners* had sought to introduce evidence |

‘in the trial court to the effect that a few days before the.

injunction issued requests for permits to picket had been

- made to a‘member of the City Commission and one request:

had been rudely refused and that this same official had -

later made it clear that he was without power to grant the

permit alone, since the issuance: of permits was the re- .

sponsibility of the entire Commission. The Supreme Court

of the United States, in answering that contention, said as ,

follows: “Assuming the truth of the proffered evidence,

it does not follow: that the ae ordinance is void on its .

face.” |

We see no occasion to deal at length with’ the holding or

observation contained in the majority opinion of the Court

~ of Appeals of Alabama to the effect that the evidence was

‘insufficient to show that Shuttlesworth had engaged in a

parade on the “streets or other publie ways of the City of

Birmingham. without a permit.” The evidence as delineated

in the dissenting opinion of J udge Johnson, in our opinion,

clearly.shows that such a violation occurred.

We can see no merit in the position apparently taken in

.the majorily opinion of the. Court of Appeals of Alabama |

to the effect that since the marchers paraded on the side-

walks of the City of Birmingham rather than in the streets, —

there had been no violation of said §1159.-

- Section 2 of the General City Code of Birmingham of |

1944 reads in part:

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- “See. 2. Definitions and rules of construction.

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“In the construction of this code and of all ordi-

nances, the following definitions and rules shall be .ob-

served, unless the context clearly requires otherwise.

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¥en

“Sidewalk: The term ‘sidewalk’ shall mean that por-

tion of a street between the curb line and adjacent

preery: line. ms . ~

- £ | ioplendate to note that the statute under con- "'

sideration in the case,of State v. Cow, 91 N. H. 137, 16 Atl.

2d 508, prohibited a parade or prgcession on streets with-

out a permit from local authorities. The parade or pro-

cession in which Cox was involved occurred on the side- ,

walks of ,the city of Manchester. Neither the Supreme

Court of New Hampshire nor the Supreme Court of the

United States took the position that the statute. involved

did not apply to sidewalks as “well as to the portion of +”

_ street generally used by vehicular traffic. Cox’s conve 4

of parading without a permit was upheld by the courts.

We are aware of the fact that ordinances somewhat simi-

lar to §1159 have been declared unconstitutional ‘in two

recent federal cases. See Gayat v. Pierce (U. 8. Court of

Appeals, 5th Cireuit), 372 F. 2d 658; Baker et al.-v. Binder,

‘decided iff the-United States District:Court for the West-

ern District of Kentucky at Louisville. That was a three-

_ judge court, with ‘one 4judge dissenting. No reference was

- made in the opinions delivered. m those ¢ases to Walker

et al. v. City of Birmingham, 388' U. S. 307, 87 S. Ct. 1824,

- L: Ed. 2d: . Perhaps we have placed too much

_~ reliance on Walker et al. v. City of Birmingham, 388 U. S.

307, 87 S. Ct. 1824, —— L. Ed. 2d —~, and on Cox v.

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New Hampshire; 312 U. 8. 569, 61 S. Ct. 762,85 L. Ed.

1049. We may have misinterpreted the opinions in these

cases. If so, we will no doubt be set straight.

In view of the foregoing, the judgment of the Court of

' Appeals is reversed ant the cause is remanded to that |

es our. |

REVERSED AND REMANDED. - ee

- Livingston, C. J., Goodwyn, Merrill, Coleman and Har-

wood, J J, concur.

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Judgment of the Supreme Court of Alabama

THE SUPREME COURT OF ALABAMA

Tue Srarze or AtapamMa—JvpiciaL DEPARTMENT

| ~ Ocroser Term 1967-68

November 9, 1967

6th Div. 291

: C/A 6th Div. 979

‘aliladin

_ Ex parte: City of Birmingham,

a Municipal Corporation

PETITION FOR WRIT OF CERTIORARI TO COURT OF APPEALS

" (Re: Fred L. Shuttlesworth v. City of Birmingham)

—— ——Waerzas, on Ji anuary 20, 1966, the Writ of Certiorari

to the Court of Appeals was granted, and said cause was

set down for submission on briefs or oral argument ;

———-

_ Comes the petitioner, by its attorney, and the Petition

for Writ of Certiorari to the Court of Appeals being sub- ~

mitted on briefs and duly examined and understood by the

Court, it is considered that in the record and proceedings

of the Court of —— there i is mney Age error.

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Iv 1s THEREFORE ORDERED AND ADJUDGED that the totemenk

of the Court of Appeals be reversed and annulled and the

cause remanded to said’ Court for further ikteiins.

therein.

It 1s FURTHER ORDERED AND ADJUDGED that the costs inci-

dent to this .proceeding be taxed against the respondent,

Fred L. Shuftlesworth, for which costs let execution issue.

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Opinién of.the Court of Appeals of Alabama —

THE ALABAMA COURT OF APPEALS’

Tue Strate or ALABAMA—JUDICIAL DEPARTMENT

Ocroser Term, 1965-66

ck , _ November 2, 1965 +

6 Div. .979 '

° : ° —

_ Frep L. Sautritesworts.

v.

City or BimmMiIncHAM

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- APPEAL FROM JEFFERSON CIRCUIT COURT

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Cates, Judge: ; '

This appeal was submitted February 27, 1964, and was

originally assigned to’ JoHnson, J.. ~ 7

Shuttlesworth was convicted by a jury in a circuit court

trial de novo. The City charged him with a breach of its

ordinance against parading without a permit. §1159, Gen-

eral City Code of 19442,

*“Tt shall be unlawful to organize or hold; or to assist in organiz-

* ing or holding, or to take part or participate in, any parade or

procession or other public’ demonstration on the streets or other

public ways of the city, unless a permit therefor has been secured

from.the commission.

“To secure such permit, written application shall be made to the

commission, setting forth the probable number of persons, vehicles

and animals which will be engaged in such parade, procession or

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Pursuant to verdict, the trial judge adjudicated him

guilty, fined him $75.00 and costs, and also sentenced him

to ninety days hard labor for the City.

There are three questions for decision: (1) whether

§1159, supra, denies, on its face, due process of law; (2) °

whether or not the ordinance as applied violates Yick Wo

vy. Hopkins, 118 U. S. 356; and (3) the sufficiency of: the

* evidence.

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Facts

” About two o ‘clock, P. M., Good Friday, April 12, 1963,

some fifty-two persons issued from a church on Sixth pon

nue, North, in Birmingham. They went easterly on the

sidewalk/of Sixth Avenue crossing Fifteenth and Sixteenth

Streets. At Seventeenth Street they turned south, then

at Fifth Avenue east again.

The defendant was one of the first to emerge from the

church. Various city policemen saw him thereafter, some-

times walking along with and ‘sometimes alongside the

others, once bounding from front to rear. |

The group went along sometimes two, sometimes three, .

sometimes four, and at one time a witness saw one rank

of ‘six abreast. This observed bunching ” coincided with

other public demonstration, the purpose for which it is to be held

or had, and the streets or other public ways over, along or in which

it is desired to have or. hold such parade, procession or other public

demonstration. The commission shall grant a written permit for

such parade, procession or other public’ demonstration, prescribing

the streets or other public ways which may be used therefor, unless

in its judgment the public welfare, peace, safety, health,- decency,

good order, morals or convenience require that it be refused. It

shall bé@unlawful to use for such purposes any other streets or

public ways than those set out in said permit. —

“The two preceding paragraphs, however, shall not apply to

funeral processions.” .

°

AO AA ALLA IOL I PMO EL GIL RIN MEME, PE CEIN ADIL EL AIOE ATES FARA (AO OIE RP AE LLL ROE CO LOONIE AIG OAL A po’

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the promenaders being blocked by officers parking police

cars athwart the crossing. at Fifth Avenue and Eighteenth

Street.

There was no evidence that any of the group jaywalked,

or that they got into the vehicular roadway except at des-

. ignated cross walks. Nor did they obstruct cars or pe-

destrians nor disobey any traffic lights, or officers directing

traffic. The only tendency toward showing disorderly con-

duct lay in evidence that some of the group sang and

clapped hands.

The defense adduced no permit for a procession or pa-

rade nor was there. evidence of anyone applying for a

permit. Conversely, the Lity’s proof showed no permit of

_ record for the day in question.

II.

Background

. A procession. has been described as an assembly in mo-

tion. 72 C. J. S., p. 1204, states:

“* * * a group, especially of persons or of vehicles -

containing .persons, moving’ onward in an orderly,

ceremonious, or solemn manners an orderly file or

formation, especially of marchers; a parade.”

_ The essence seems to lie in the group’s having ad hoc.and

pro tempore exclusive sence of all or part of a public

way.

. Early—probably when in the grip of his fondness for

referring to the public as the “Mob”—Holmes, J., in Com-

-monwealth v. Davis, 162 Mass. 510, 39 N. E. 113, spawned

what Judge Conway of the New York Court of Appeals

characterized as “the plenary power [of public officers]

~j;

OG MO NO AI LELLI A LEOOF TOLLE AIL LNG SET GEL IID ‘eitint sabeiaielasie

trial ne

’ cys

20a

7m

aie use of streets and parks.” P. v. ‘Kune, 300 N. Y. 273,

_ 90N. E. 2d 455, oo Cf. Kunz v. New York, 340 U. 8.

290. ;

However, honk the Davis case was approved in the

United States Supreme Court (167 U. S. 43), its assurance

has been. eroded -by later First-Fourteenth Amendment ,

eases beginning with Hague v. Committee; 307 U. S. 496.

Consequently in 1941, we find the court saying in Cqm-

monwealth v. Anderson, 308 Mass. 370, 32 N. E. 2d 684

(hn. 2), concerning an ordinance of Boston as applied to-

ad [ehovah’s Witness: -

“** © there is no suggestion in the iaieet facts that

the defendant was obstructing traffic, causing danger,

or annoying travellers in any way, or that the form

_ of the placards or the writing upon them was indecent,

libellous, likely to incite violence or otherwise objec-

tionable. Nor do the terms of the ordiriance itself limit

_ its prohibition to instances where these or similar con-—

ditions exist. The particular case’ here presented is orf

of the unqualified interdiction of a wholly inoffensive

display of placards on a public street unless the de-

fendant should submit to the requirement that he first

obtain a permit. Whatever result might be reached -

if the ordinance, by its wording, affected only carefully

defined instances of conduct actually inimical to the

‘public interest, or if. the proof had disclosed such ~

conduct, we must at least conclude that under decisions

by which we are bound the application of this ordinance

o this defendant in this instance violated his consti-

_ tutional right to do what he did without a aban

_ permit from anyone: oe ee

?

ie a

Pee ety s Lee

And in the same volume‘on a consolidated appeal, Com- |

monwealth v. Pascone, 308 Mass. 591, 33 N. E. 2d 522, we

find the same rule again applied with a precise distinction

of ratio decidendi in affirming the second case. »

Moreover, in express terms the Massachusetts court, in

1947, comes to grips with the Dabis case, supra, Common- |

wealth v. Gilfedder, 321 Mass. 335, 73 N. E. 2d 241 (hn: 3),

The opinion confesses puzzlement at how the Supreme |

Court could speak as it did to its judgment in. Hague and

yet not have overruled Davis, supraz ‘The Gilfedder opinion

by the distinguished Justice (and*later Chief Justice) Qua

is “worthy of close’ study as a persuasive and considered,

precedent as to the use of parks by the public.

Hague was decided-in 1939. The history of Mayor ©

Hague’s resistance to union activity of virtually all sorts.

' ° eannot be ignored.. Nor can that factor -be gainsaid in

assessing the 5-2 division in the then membership of the

court. The opening paragraph, 307 U. S., at 500, is:

“The judgment of the court in this case is that the de- . |

cree is modified and as fhodified affirtned. ‘Mr. Justice

FRANKFURTER and Mr. Justice Dovetas took no part °

, in the consideration or decision of the case, Mr. Jus-

vice Roserts has 4h opinion in which Mr. Justice

Brack, concurs,.and Mr. J ustice Stove an opinion in ©

which Mr. Justice.Reep concurs. The Caer Justice

concurs in an.opinion. Mr. Justice McReynoups and

Mr. {ustice Butter dissent fgr reasons stated in opin-

ions by them respéctively.”

Carefully analysed it is obvious’ that only Mr. Justice ”

Butler (in dissent) was expressly willing to stand by we

v. Massachusetts, 167 ia S. 43.

‘

22a

Roberts, J., said of Davis‘ (515):

“The oxdinanes there in question apparently had a dif-

' ferent purpose from that of the one here challenged,

for it was not directed solely at the exercise of the

right of speech and assembly, but was addressed as

a. -

_ well to other activities, not in the nature of civil rights, . -

which doubtless might be regulated or prohibited as

respects their enjoymien in parks. In the instant case

. the ordinance deals only itl the exercisé of the right

of assembly” for the purpose of communicating views

‘-entertained by: speakers, and is not a geeral measure |

a‘ to promoté the public camvenience-in tHe use of the

_- , streets or parka, ” : .

on”

After pointing out that the Jersey City ordinance ex-

plicitly required permits only for public — or as-

semblies, he made this oft quoted statement:

“* * © Wherever “the title of. streets and parks may

rest, théy have immemorially been held in ‘trust for the

. use of the public and, time out: of mind, have been used

for purposes of assembly, communicating thoughts be-

tween citizens, and discussing: public questions. Such.

use of the streets and public places has, from ancient

times, been a part of the — immunities, rights,

and liberties of citizens. “The privilege of .a citizen of

the United States to use the streets and parks. ia com-

8’ The writer veceite that: Mr. Justice Roberts in Siaiin was

chary of. “re-examination of constitutional principles” and hence

‘chose to follow the English practice of distinguishing i a prior prece-

dent into such narrow confines that its immurement is that of 2

tomb. c . ‘«

‘The Boston ordinances banned’ (without a "permit from the

Mayor) firing cannons, or firearms, a goods, setting up —

‘éte., as well as public addresses.

a”

PLB AE AAA TNA a a ce Whig ia Bina 0

_

3 al ; eo

) e .

23a “a

3 caver |

munication of views on national questions may be |

regulated in the interest of all; it is not absolute, but

relative, and must be exercised i in subordination to the.

general comfort and convenience, and in consonance

‘with peace and good order; but it must not, in the guise

of regulation, be abridged « or denied.

“We think the court: below was. right: in holding. the

ordiriance quoted in N¥fte1 void upon its face. It does

not make comfort or convenience in the use of streets.

or parks the standard of official action. It enables the

Director of Safety to refase a permit. on ‘his nfgré |

opinion that such refusal will prevent ‘riots, distur- cae

bances or disorderly assemblage.’ It can thus, as the

record discloses eg rmgade the instrument of arbitrary

suppression of free expression: of views on national af-

- fairs, for the “prohibition of all. speaking will un-

doubtedly ‘prevent’ such eventualities. But uncon-

trolled offigial suppression of the privilege cannot be -

made a substitute for the duty to gry order in .

connection with the exercise of the right.”

ie 2

At this point we pick up ‘the decisions which follow in

the train of the Hague ease. The early ’40’s saw the ana .

gence of tle J ehoyah’s Witnesses case ne

. In Lovell v: Griffin, 303 U.98.°444, the court had held void

an ordinance prescrihing a permit to distribute literature.

_Then after Hague, i in 1939, we find: oe

Schneider v. State, 308 T U.S. 147 (1939); is

Carlson v>yCalifornia, 310 U. 8.106 (1946); -

Jamison V. Texas, 318 U. S. 413 (1943) ;

5 See Harper, Justice Rutledge and the Bright Constellation, 46,

et seq.

&

~— *

24a

Largent v, Texas, 318 U..S. 418 (1943) ;

Jones v. Opelika, 319 U. S. 103 (1943) ;

Murdock v. Pennsylvania, 319 U. S. 105° (1943) ;

_ Saia v. New York, 334 U. §. 558 (1948) ;

Kunz v. New York, "340 U.S. 290 (1951) ;

Gelling v. Texas, 343 U. S. 960 (1952);

: Fowler v. Rhode Island, 345 U. S. 67 (1953) ; and

Staub'v. i of Baxley, 355 U. S. 313 (1958).

Kalas this array, hinneren, stands Cox v. New Hamp-

shire, 312 U. S. 569, which, unlike the mt Iti-opinion Hague

decision, came from an unanimous court speaking through

Hughes, C. J. This opinion relied heavily on the State

Supreme Court’s construction in the same ease. State v.

Cox, 91 N. H. 187, 16 A. 2d 508,’ .

Here, for affirmance, the City” of Birmingham. claims

‘that Cox is decisive. Concededly, there are many similari-

tied between (1159 ofthe Birmingham Code of 1944 and the

New Hampshire statute there in question. |

Corresponding is the broad sweep of licensing: Thus

from Coz, we find: “ * * * no parade-or procéssion upon

_-any public street or Way * ** unless a special license there- .-

“for*** .” And of like tenor, §1159 reads: “ * * * un.

lawful to organize * * * any parade or procession or other

‘public demonstration on the streets or ideal public Ways

* * * unless a permit ooe™

Administrative mechapiés in each are similar. The N ew

Hampshire Act made no exceptions other than to empower |

the city licensing committee or board to grant.“revocable —

blanket licenses” to fraternal and other like organizations, |

to theatres and undertakers. |

' However, the New Hampshire enactment. applied not

only to parades and processions but also to ‘performances

fe Sel adden he AME ste

PRET Te ee ee, Ce .

25a

“or exhibits comprising theatrical or dramatic representa-

_tions as well as any open air public meeting upon any

ground abutting on a street or public way.

Moreover, the New Hampshire court, State v. Cie, made

no reference to any prior judicial or administrative inter-

pretation of the statute. Whereupon, -the court proceeded

to fill in by implication 4 variety of requirements: (1) rea-

sonableness; (2) uniformity of treatment of applications;

and (3) prsidoen from improper or inappropriate considera-

tions and from unfair discrimination.

It was undoubtedly this gloss of “a systematic consistent

and just order of‘treatment” which facilitated affirmance in

Cox v. New Hampshire, supra. |

Since, however, the validity prima facie of §1159 thas not . |

been before any appellate court* we find it necessary to

examine the unfolding of cases since Cox. In Primm v.

“City of Birmingham, —— Ala. App. ——, 177 So. 2d 326,

we found insufficient evidence. |

In passing, we note that in McMeans v. - City of Fort

Deposit (Cr. 11, 759-N, U. S. C., M. D., Alabama, Septem-

ber 30, 1965),. [Frank M.] Johnson, J, ‘held an identical

ordinance of the City of Fort Deposit to w maconsiitatonal

as applied to the facts.

Nevertheless there are at least two reasons which keep

us from using the McMeans opinion as authoritative as to

Shuttlesworth’s appeal. |

First, the facts there recited disclose no parade or proces-

. sion but rather only peaceful picketing within the protec

tion of Thornhill v. Alabama, $10 U. 8.88. Hotel & Restau--

* A three-judge court presided over by Rives, x in King v. City

of Birmingham (Civil Action 63-196, U. 8. D. C., N. D., Alabama,

August_J2, 1963), dissolved itself without taking up the constitu-

tionalit? of §1159.

| 26a

oon Emp. v. eenninnnl, 249 Ala, 265, 30 So. 2d 696 hia

21), Mc

| | Second, the opinion states that the- City eppearti but did”

not seek a remand to its Recorder’s Court. °

Third, we recognize that Judge [Frank M.] Johnson is

under the review of, and to that extent is bound by, the

decisions of the Fifth Circuit. Indeed, his opinion relies

on Rachel v. Georgia, 342 F. 2d 336, and Peacock v. City of

‘Greenwood, 347 F. 2d 679, to justify removal under 28

U. S. C. 1448.

.We understand that stachel is to be. taken up ‘for argu-

ment and submission by the Supreme Court of the United - a

States’ at the current 1965-66 Term, probably in contrast.

with the Third Cireuit’s denial of removal in Anderson v.

City of Chester, Pennsylvania, 34 L. W. —. .

Il.

Fist AMENDMENT FREEDOMS ~

The last term of the Supreme Court effectively saw the

| Fourteenth Amendment incorporate—albeit hesitantly—

the first eight amendments to the Federal. Constitution as

part of the due process laid upon the states. Cf. Black, J.,

dissenting in Adamson v. Califorma, 332 U. S. 46, with the

_. eoneurring opinions of Harlan and Goldberg, JJ., in

Pointer v. Texas, 380 U. 8. 400.

The First Amendment reads as follows:

’ “Congress shall make no law. respecting an establish-

ment of religion, or prohibiting the free exercise there-

of; or ne the freedom of speech, or of the press;

7 Sub nom. Georgia v. . Rachel Me, 147, 1965- 66 Term), oon GU, S.

, 341. Week 3101. ~

27a

or the right of tie people peaceably to assemble, and to

‘ petition the government for a redress of grievances.”

Cardoso, in The Paradoxes of Legal Scienge, at pages |

94-96, says: . Cx

~~

«<* * * That ill deserves the name 2 of confinement which

hedges us in only from bogs and precipices. °So that

‘however it may be mistaken, the end of law is not- -

to abolish or-restrain, but to preserve and enlarge ©

freedom. For in all the states of created beings, ca- |

pable of laws, where there is no law there is no free-

dom.- For liberty is to be free from restraint and vio-

lence frony others, which cannot be where there is no

law; and is not, as we are told, “liberty for every man

to io what he lists.” For who could be free, when

every other man’s humour might domineer over him?

But a liberty to dispose and order freely as he lists his

person, actions, possessions, and. his whole property

within the allowance of those laws under which he is,

-and therein not to be subject to _ arbitrary will of

another, but freely follow his own.’ Modern research

in social science has amplified the thought of Locke,

but without changing its essentials. [Citing Treatises

on Civil Government, book 2, sec. 57.]

“Tf liberty is a social conception,’ says Hobhouse, ‘there

ean be no liberty without social restraint. For any one

pergen, indeed, there might be a maximum of liberty

if all social restraints were removed. Where physical

strength alone prevails the strongest man has un-

limited liberty to do what he likes with the weaker;

but clearly the greater the freedom of the strong man,

the less the freedom of the weaker. What we mean by

- ¥ 3 S

28a

liberty as a social conception is a right to be shared

by all members of society, and very little consideration

suffices to show that, in the absence of restraints en-

_ forced on or accepted by all members of a society, the

liberty of some must involve the oppression of others.

. Excess of liberty contradicts itself. In short there

is no such thing; there is only liberty for%one and

restraint for another.’ ” ti

pers at pages 97. 99 he continues :

“Bills of rights give assurance to the individual of the

preservation of his liberty. They do not define the

liberty they promise. * * * Liberty became identified

with the reign of law. ‘Freedom of men under govern-

ment,’ says Locke, ‘is to have a standing rule to live

by, common to every one of that society and made by

‘the legislative power erected in it.’ The individual may

not be singled out from among his fellows, and made

the victim of the shafts of malice. Those who are put

over him ‘are to govern by promulgated established

w, not to be varied in particular cases, but to have

‘one ‘rule for,rieh and poor, for the favorite at court

and the: countryman at plough.’

“Up to this, there is no restraint upon the scope or

_ force of law so long as it be law, i. e., so long as it be

Beneral or equal, a rule as contrasted with an ‘ex-

temporary decree.’ Liberty means more than this, how-

ever, as a concept of social science. It has come to

mean more, at least in our own system, as a concept of

constitutional law. The concept in our constitutional

development has undergone a steady and highly sig-

nificant development. The individual may not only in-

sist that the law which limits him in his activities shall

(Fo eee ere Ween Bat es ed ee

-

29a

impose like limits upon others in like circumstances. ~

He will also be heard to say that there is a domain of

free activity that may not be touched by government or °

law at all, whether the command, be special against him

or general against him and others. By express provi-

sion of the constitution, he is assured freedom of

speech and freedom of conscience or religion. These

latter immunities have thus the sanctions of.a specific .

pledge, but they are merely phases of a larger im-

munity which finds expression in the comprehensive

declaration that no one shall be deprived of liberty

without,due. process of law. Such at least appears’ to

be the more recent doctrine of the court that speaks

the final word. Apart from any enumerated phase of

’ liberty and beyond it,-this declaration gives immunity

against ‘the play and action of purely personal and

aribtrary power.’ What is personal and arbitrary in

' mandate and restraint does not gain rationality and

coherence because it takes the form of statute. The .

legislature does not speak with finality as to the mea-

sure of its own powers. The final word is for the

courts.” © | :

Holmes, J., dissenting in Abrams v. United States, 250

U.S. 616, said:

_ “Persecution for the expression of opinions seems to

me perfectly logical. If you have no doubt of your

premises or your power and want a certain result with

all your heart you naturally express your wishes in

law and sweep away all opposition. To allow opposition

‘By speech seems to indicate that you think the speech

impotent, as when a man says that he has squared the

circle, or that you do not care whole-heartedly for the

result,-or that you doubt either your power or your

» ae

!

eee

30a

* |

premises. But when men have realized that time has

upset many fighting faiths, they may come to believe

even more than they believe the very foundations of

their own conduct that the ultimate good desired is

better reached by free trade in ideas—that the best

test of truth is the power of the thought to get itself

accepted in the competition of the market, and that

truth is the only ground upon which their wishes safely

can be carried out. That at any rate is the theory of

our’Constitution. It is an expériment, as all life is an

experiment.’ Every year if not every day we have to

wager our salvation upon some prophecy based upon

imperfect knowledge. While that experiment is part

of our system I think that we should be externally

vigilant against attempts to check the expression of

opinions that we loathe and: believe to be fraught with

death, unless they so imminently threaten immediate

interference with the lawful and pressing purposes of

the law that an immediate check is nequyres to save

\the country. * * *”

From Poulos v. “State of N ew Hampshire, 345 U. S. 395,

per Reed, J., we quote:

“The principles of the First Amendment are not to be

treated as a promise that everyone with opinions or

beliefs to express may gather around him at any public

‘place and at any time a group for discussion or-instruc-

tion. It is a nonsequitur to say that First Amendment

rights may not be regulated because they hold a pre-

ferred position in the hierarchy of the constitutional

guarantees of the incidents of freedom. This Court

has never sq held and indeed has definitely indicated

oe. the contrary. It has indicated approval of reasonable

| 3la

-nondiscriminatory regulation by governmental author-

ity that preserves peace, order and tranquillity without

deprivation of the First Amendment guarantees of free

speech, press and the exercise of religion. When con-

sidering specifically the regulation of the use of public

parks, this Court has taken the same position. See

the quotation from the Hague case below and Kunz v.

People of State of New York, 340 U. S. 290, 293-294;

Saia v. People of State of New York, 334 U. S. 558,

562. In these cases, the ordinances were held invalid,

not because they regulated the use of the parks for

meeting and instruction but because they left complete

discretion to refuse the’ use in the hands of officials.

‘The right to be heard is placed in the uncontrolled

discretion of the Chief of Police.’ 334 U. S. at page

560, * *.*’ [W]e have consistently condemned . li-

‘eensing systems which vest in an administrative offi-

cials discretion to grant or withhold a permit upon

-broad criteria unrelated to proper, regulation of public

places. 340 U-S. at page 294, * * *

“There is no basis for saying that freedom and order

are not compatible. That would be a decision ef des-.

peration. Regulation and suppression are not the

same, either in purpose or result, and courts of-justice

. ean tell the difference. * * * ” |

In Herndon v. Lowry, 301 U. 8. 242,° and Freedman v.

Maryland, 380 U. S. 51, the court refers in effect to the

®“The power of a state to abridge freedom of speech and of.

assembly is the exception rather than the rule and the penalizing

even of utterances of a defined character must find its justification

in a reasonable apprehension of datiger to organized government.

The judgment of the Legislature is not unfettered. The limitation

' upon individual liberty must“have ay sropriate relation to the safety

of the state.* * *” / ;

32a

, ;

_ preferred position of First Amendment rights of freedom

of expression. Thomas: v. Collins, 323 U. S. 516.- This pri-

ority is also used in Hague*v. Committee, supra. Edwards

' .¥. South Carolia, 372 U. S. 229, and: Cox-v. Louisiana, _

379 U. S. 536, are recent exdmples of Anis formulation.

In or constitutional law freedom of expression can

' parely be fettered by a prior restraint on its exercise. Black-

stone, Comm. iv., 151, et seq., aptly said:

“9¢* The liberty of the press is indeed essential to the

nature of a free state; but this consists in laying no

previous restraint upon publications, and not in free-

dom from censure for erjminal matter when pub-

lished. * 6 @)) ¢ , a

Moreover, abuse of free speech is tolerated more: the

stifling is a worse mischief. Freedman v. Maryland, supra:

Whether we concede that the appellant did or did not

participate in a “procession” or “parade,” undispntedly he

was arrested while walking on a sidewalk. Immediately

beforehand he had participated,-from aught that appears, ‘

in an orderly and presumably lawful assembly.

By merely forbidding citizens to go to (or from) the

place of assembly, the right of peaceable assembly could.

. easily be thwarted. Again we note Blackstone, Comm. i,

184: coats

locomotion, of changing situation, or moving one’s per-

son to whatsoever place one’s own inclination may

direct, without imprisonment or: restraint, unless nd

due course of law. * * *”

“«** * This personal liberty consists in the power of»

t

33a

ee : J ? °

Also, ‘the constitutional protection from unreasonable »

seizures applies to a seizing of the person. Ex parte Bur-.

ford, 3 Cranch 448 (1806). . |

Hence, we consider ourselves bound mn examine. §1159,

“supra, giving preference (1) to the constitutional rights of

‘ free expression (e. g., free speech, publication) ee free —

assembly; and (2) to the implicit right to use the sidewalks

for walking. \

It is the. recognition and regulation af this Salter right

as being nonexclusive which causes difficulty i in legislating

and in judicial review of the legislator’s choice. This enters

| pe two enquiries: the extent of the power available to

€

gulate and the mode of its exercise. “Ge. ,

TV. f

; Av

Pouce Power. wre,

‘ 2 4

- Code 1940, T. 62, 9654, relating solely 6 Birmingham, °

_ provides :

8654, The city shall have full, complete, unlimited,

and continuous. power afid authority, from time to

time, to adopt ordinances’ and regulations not incon- ’

sistent with the laws of the state and the federat and

state Constitutions to carry into effect or discharge

_ the powers and duties conferred by law ‘upon the city,

and to provide for the safety, preserve the health, pro-

mote the prosperity, improve the morals,. orders, com- .

fort, and convenience of the inhabitants of the city,

and to prevent and punish injuries and offenses to the

public therein, and to prevent conflict and ill feeling

between the races in the city by making provisions for

the use of separate blocks or parts of blocks for ‘resi-

34a

dences, places of abode, and places of assembly by the

different races,° and to prevent evasions and punish:

violations of the ordinances and resolutions of the city,

and to compel obedience thereto by. fine not exceeding -

one hundred dollars and by imprisonment or hard

- labor not ‘exceeding six months, one or both,. and by

_, revocation of license granted by such municipality upon

conviction in the recorder’s court for violation of any

of said ordinances; provided, however, that this sec-

tion shall not be construed to authorize the forfeiture

- of franchises gfanted by state laws or city ordinances

without appropriate legal proceedings ; and to the ends

set out in this section the full, complete, and unlimited

police powers possessed by the state of Alabama shall

be had as though specifically and in detail set out in .

‘ this section, in so far as it is possible for the legisla-

ture of Alabama under the Constitution of Alabama and f

of the United States to delegate such powers, it being

expressly declared that nothing contained herein shall

be construed as a limitation of or restriction on the

police powers granted. to the city under general or.

special laws.”

hit: #3

=< The general niunicipal law, Code 1940, T. 37, §455, reads:

“8455, Municipal corporations may, from time to time,

adopt ordinances and resolutions not inconsistent with

” the laws of the state, to carry into effect or discharge

the powers and duties conferred by this title, and _pro-

° City of B’ham. v. Monk, 185 F.2d 859 (B’ham. zoning ordi-

nance).; Buchanan v. Warley, 245.U. S. 60 (1917) (Louisville, Ky.,

ordinance) ; Harmon v. Tyler, 273 U. 8. 608 (1927) (New Orleans

ordinance); City of Richmond v. Deans, 281 U. S. 704 (1930) -

_. Richmond, Va., ordinance), See also Robinson v. Florida, 375

U. S. 918. . |

35a

vide for the safety, preserve the health, promote the

prosperity, improve the niorals, order, comfort, and

convenience: of the inhabitants of the municipality, and

enforce obedience: to such ordinances by not ex-

ceeding one hundred dollars, and by imprisonment or

' hard labor not exceeding six monthe, one or botli.”

Police power, in 16 Am. Jur. 2d, Constitutional Law,

§262, is’ described (in part) thus:

f

“While iti is generally recognized that it is very difficult

and practically impossible to give an exact definition

of the ‘police power, many. attempts have been made.

There is no consensus in favor of any of them, but these

definitions are of considerable value as indicating the

breadth and scope of this power.

“The expression ‘police power,’ although capable of —

use, and sometimes used, in a restricted sense, is fre-. _

quently used very broadly to include all legislation and

almost every function of civil government. Thus, it

uas been stated that the police ‘power in effect sums

up the whole power of government, and that all other

powers are only incidental and ancillary fo the exe-

cution of the police power; it is that full, final power

involved in the administration of law as the means to

the attainment of practical justice. And it has been

said that the power is only another name for that au-

by thority which resides in every ‘sovereignty to pass all —

laws for the internal regulation and Sovernment of the

state, that it is the vast residual power of the state,

and that it comprises that portion of thé sovereignty

of the state which is not surrendered by the terms of

the Federal Constitution to’ the : federal government.

. 36a

_ “Blackstone defines police power as ‘the due regulation

and domestic order of the kingdom, whereby the: indi-

. viduals of the state, like members of a well-governed

family, are bound to conform their general behavior

to the rules-of propriety, good neighborhood, and good

manners, and to be decent, industrious, and inoffensive

in their respective stations. Many cases, employing the

language of Chief Justice Shaw, define it as ‘the power

~ vested in the legislature by the Constitution to make,

ordain, and establish all manner of wholesome ‘and

reasonable laws, statutes, and ordinances, either with

penalties or without, not. repugnant to the Constitution,

as they: shall judge to befor the good and: welfare of

the commonwealth, and of the subjects of the same.’ ”

Knight, ;. in State v. Kartus, 230 me 352, 162 So. 533,

said: . )

“No one, at this time, we take it, would have the temerity .

to undertake to define the ‘police power’ of a state, or

mark its limitations. apy °

In Hawkins v..City of cecil, 248 Ala. ‘692, 29

So. 2d 281; Foster, J., said of T. 62, §654, supra (at p.

696): “This power is of course subject to be controlled.”

See also City of Birmingham v. Birmingham Business Col-

lege, Inc., 256 Ala. 551, 56 So. 2d 111. ° a

Concededly, if the Legislature confers\the charter power,

a aty ‘or town may ordain lei ae the use of its

| streets and sidewalks. This power cannot, meneree, extend

beyond constitutional bounds.

We are presented, with two conflicting concepts. First,

the use of public ways is subject primarily to going to and

gg ——eEeeeEeeEeEeEeEeEeEeEeEeEeEeeEeEeEeeEeEeEeEeEeEereeeeeeeeeeeerl ee ee

r

eS ot. oo ee! ee ee

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37a

fro of the public generally, afoot on sidewalks, with the

' roadwaly"mainly reserved for wheeled traffic.

Secondly, free speech, the communication of ideas, and

free assembly, locomotion, inhere in the use of public

places. i | | ;

At the outset, we beligné that the early case of Common-

wealth v. Davis, supra, treating public property as sub-

| _ject to power to be used exclusively in the will of public

authorities as if they were private owners is no longer

valid. Thomas v. Casey, 121 N. J. L. 185, 1 A. 2d 866, rested.

on Davis. Hague v. Committee, supra, disapproved.

Police power™ has been held vital for society to hold <

together: the contrast often is given of anarchy, and not —

' the philosophic nirvana-like anarchy. Law and order for

the protection of the weak from the strong is in contrast

to the law of the jungle. lias ;

' Emergencies, however, do not create powers: rather they

furnish the occasion for the exercise of those conferred.

Constitutional law cannot raise itself by its own bootstraps.

Homebuilding & Loan Assoc. v. Blaisdell, 290 U. S. 398.

We do not doubt that $654 of T. 62 and §455 of T. 37,

supra, confer on the city the power to regulate the use of

public streets and places in the interest of accommodating

conflicting claims of vehicles and pedestrians. Yet, in so

-resolving traffic problems the, State and Federal Constitu-

v0 “Any person engaged in a lawful pursuit has the right to pass

on the public streets without interference, threats or intimidation.”

Russell v. International Union, 258 Ala. 615, 64 So. 2d 384. Nor is

a pedestrian vis a vis a street railway running at grade to be deemed

a trespasser. Birmingham, Ensley, etc., R.R. Co. v. Stagg, 196 Ala.

612, 72 So. 164. -

11 Jacobson v, Massachusetts, 197 U. S. 11 (smallpox vaccina-

tion) ; Ineberman v, Van de Carr, 199 U. S. 552 (milk delivery

permit).

38a

tions impose a duty to recognize liberty within a concept

of an ordered society.. 7

Basically, we consider that a municipality or a ‘state

legislature éan require that a permit be first. obtained to

use the vehicular portion of a street for a parade or pro-

cession. Moreover, if. the movement overflows onto the -

pedestrian sidewalk the same ends for control would seem

‘to obtain. | ; . )

As to a group walking on thé sidewalk of a dedicated

street, spaced apart, not blocking others from going to -

_or fro, nor interfering with cross traffic (either pedestrian’ .

or vehicular) and demeaning themselves in an orderly and

peaceable fashion, we consider there is such a fundamental

right ‘to so use the sidewalk that a permit would be the.

exception. Thus, the City in such a case would have the

burden of proving (beyond a reasonable doubt) that (1) no

permit was issued and that (2) an abridgement of the

‘rights (either of expression or of locomotion) is warranted

by overriding considerations. — Pa |

Picketing, as currently regulated by spacing the. picketers

(both as to fore and aft and: abreast), keeping them cir-

' culating and yielding the right of way to passers-by, af-

fords a useful illustration. | |

Ordinarily, a court in reviewing legislation will look ‘at

the remedy with the favoring intendment that all ration-—

ally connected mischiefs passed through the collective mind

of the lawmakers. Thus the inhibition of conduct—though

sometimes partly innocent—can find support in the state’s

police power if aimed at a substantial evil. |

- Nevertheless, this balancing in First Amendment cases

finds the scales weighted in the beginning in favor of the —

: freedom which is sought to be restrained. As Rutledge, ‘J.,

said in Thomas v. Collins, supra, at 529-530:

. + 89a

“The case confronts us again with the duty our-system

places on this Court to say where the individual’s

freedom ends and the State’s power begins. Choice on

that border, now as always delicate, is: perhaps more

so where the usual presumption supporting legislation

is balanced by the preferred place given in our scheme

to the great, the indispensable democratic freedoms

secured by the. First Amendment. Cf. Schneider v.

State, 308 U. S. 147; Cantwell v. Connecticut,-310 U. 8S.

296; Prince v. Massachusetts, 321 U. S. 158. That

priority gives these liberties a sanctity and a sanction |

‘not permitting dubious intrusions. And it is the char-

acter of the right, not of the limitation, ‘which deter-

mines what standard governs the choice. Compare

United States v. Carolene Products Co., 304 U.S. 144,

152-153.

“For these reasons any. attempt to restrict those liber-

- ties must be justified by clear public interest, threat-

ened not doubtfully or remotely, but by clear and

present danger. The rational connection between the

remedy provided and the’evil to be curbed, which in

. other contexts might support legislation against at- ©

tack on due. process grounds, will not suffice. These

rights rest on firmer foundation. Accordingly, what-

ever occasion would restrain orderly discussion and

persuasion, at appropriate time and place, must have |

clear support in. public danger, actual or impending.

Only the gravest abuses,-endangering paramount in-

terests, give occasion for permissible limitation. It is

therefore in our tradition to allow the widest room for

discussion, the narrowest range for its restriction, par-

ticularly when’ this right is exercised in conjunction

40a

Sd

,with peaceable assembly. It was not by accident or

coincidence that the rights to freedom in speech and

press were coupled in a single guaranty with the rights

of the people peaceably to assemble and to petition

for redress of grievances. All these, though not iden-

tical, are inseparable. They -are cognate rights, cf. —.

De Jonge v. Oregon, 299 U. S. 353, 364, and therefore

are united in the First Article’s assurance. * * *”

We conclude that: the reference in §1159 to the factors

(“public welfare, peace, safety, health, decency, good order,

morals or convenience”) are but facets of the police power

conferred on the City to enable it to establish and main-

tain itself as a viable entity. These elements are only the

source to which the City may look in choosing the means

| toward a legitimate end. Police power is not an ever ready

deus ex machina.

_. The enquiry next devolves on wheteas the City’s legis- —

lative body has established an appropriate means to pre-

vent abuses in the streets.

:.

Dozs §1159 Impose an Invipious Prion Restraint? -

This question we must answer in the affirmative.

In Saia v. New York, 334 U. S. 558, the court declared .

a sound truck permit ordinance void on. its face.

Niemotko v. Maryland, 340 U.S. 268:

“This Court has many times examined the licensing

systems by which local bodies regulate the use of their -

parks and public places. * * * In those cases this Court

condemned statutes and ordinances which required that

=A

’

4la

0

‘ permits be obtained from local officials as a prerequi- -

site to the use of public places, on the grounds that a

license requirement constituted a prior restraint on

. freedom of speech, press and religion, and, in the ab-

sence of narrowly drawn, reasonable and definite |

standards for the officials to follow, must be invalid.

vee’ (hee added.)

Kunz v. New York, 340 U. S. 290: — »

“* * * We have here, then, an ordinance which gives

an administrative official discretionary pewer to con-

trol in advance the right of citizens to speak on re- |

ligious matters on the streets of New York. As such,

the ordinance is clearly invalid as a prior restraint on

the exercise of First Amendment rights.

“In considering the right of 4 municipality to control oa

the use of public streets for the expression of religions

views, we start with the words of Mr. Justice’ Roberts

that ‘Wherever the title of streets and parks may rest,

they have immemorially been held in trust for the

use of the public and, time out of mind, have been used

for purposes of assembly, communicating thoughts be- ~

tween citizens, and discussing public questions.’ Hague

v. C. I. 0., 307 U. S. 496, 515 (1939). Although this.

Court has recognized ‘that a statute may be enacted

which prevents serious interference with normal usage

of streets and parks, Cox v. New Hampshire, 312 U. S.

~ 569 (1941), we have consistently condemned licensing

systems which vest in an administrative official. dis-

cretion to grant or withhold a permit upon broad

criteria unrelated to proper regulation of public places.

& * #9” ”

American Civil Inberties Union v. — of Cortlandt,

109 N. Y. S. 2d 165::

“Although in most cases. where legislative acts have

been struck down, the discretion in administering the

licensing power has been placed i in administrative offi-

cial, the rule is no different where the legislative body »

reserves for itself the administration of the licensing

power. In the case of Niemotko v. Maryland, 340 U. S.

268, * * * applications fora license were customarily

“made first to the Police: Commissioner, and, if refused

by him, application was then made to the City Council.

., Even that body was -not permitted to have unlimited

” and uncircumscribed discretion. It is that type of dis-

cretion that has been here vested and, of necessity,

this Court must declare the ‘Permit Ordinance’ .un-

constitutional.”

Cox v. Louisiana, supra:

“This Court has recognized that the ‘lodging of such

- broad discretion in a public official allows him to de-

termine which expressions of view will be permitted

. and which will not. This thus sanctions a device for

the suppression of the communication of ideas and

_ permits the official to act as a censor. See Saia v. New

York, supra, at 562. Also inherent in such a system -

allowing parades or. meetings only with the prior per-

- mission of an official is the obvious danger to the right

of a person or group not to be denied équal protection

of the laws. See Niemotko v. Maryland, supra, at 272,

284; cf. Yick Wo v. Hopkins, 118 U. S. 356. It is clearly

unconstitutional tg, enable a public official to deter-

j mine which expressions of view will be permitted and

—=—

43a

which will not or to engage in invidious discrimina-

tion amiong persons.or groups either. by use of a stat-

ute providing a system of broad discretionary licens-_.

ing power or, as in this case, the equivalent of such

a system by selective enforcement of an extremely

broad prohibitory statute.

“It is, of course, undisputed int appropriate, limited

discretion, under properly drawn statutes or ordi-

nances, concerning the time, place, duration, or man-

ner of use of the streets for public assemblies may be

vested in administrative officials, provided that such

limited discretion is ‘exercised with “uniformity of

method of treatment upon the facts of each applica-

tion, free from i improper or inappropriate considera-

tions and from unfair discrimination” .. . [and with]

a “systematic, consistent and just Sather: of treatment,

with reference to the convenience of public use of the

highways ...”’ Cox v. New Hampshire, supra, at.

576. See Poulos v. New Hampshire, supra.

“But here it is clear that the practice in Baton Rouge

allowing unfettered discretion in local officials in the

regulation of the use of the streets for peaceful parades

and meetings in as unwarranted abridgment of appel-

lant’s freedom of speech and assembly secured to him

by the First Amendment, as applied to the States by

the Fourteenth Amendment. It follows, therefore, that

. appellant’s conviction for violating the statute as so

applied and enforced must be reversed.”

The only administrative standards are ‘ion of the

City’s basic power virtually in its entirety. The: expres-

_. sions used are couched in the distributive. Hence, a single

A et Gal en OO

reference to the Commission’s opinion of the public wel-

fare, or of peace, or of safety, or of héalth, or of decency,

or of good order, or of morals, or of convenience would

suffice for a permit refusal. |

_«** © [The police power of a state] must be exercised

for an end which is in fact public and the means

- adopted must be reasonably adapted to the accom-

vplishment of that end‘and must not be arbitrary or

oppressive.”—Treigle v. Acme Homestead Ass'n, 297

U. S. 189. ;

VL

§1159 Lacks AScERTAINABLE STANDARDS

If the cohesiveness of the fifty-two pedestrians in having

a common starting point and apparent common destina-

- tion were held,to constitute a procession, ‘nevertheless we

should be constrained to hold the foregoing ordinance in-

valid for the lack of ascertainable constitutional standards

‘in determining administratively when a permit shall be

granted. Baines v. City of Danville, 337 F. 2d 579. .

So far as we can find, §1159 has been reviewed directly

\

only once by appellate courts. In Primm v. City of Bir-~

mingham, supra, we held the City had singled -out the

defendant without: showing any nexus between him and

any other pedestrians. There, Johnson, J., said:

“To hold that the acts of * * * Primm were violative of

-the above parading ordinance would, in effect, require

a parading permit to be procured by every conven-

tioneer wearing ‘a large political button attempting to

cross a street, or by every sporting enthusiast waving

a pennant that denotes his loyalties while ne

to the field of encounter. * * *”

In Baines v. City of Danville, supra, approving reference

_is made to the Model Ordinance Regulating Parades

-drafted by the National Institute of Municipal Law Officers.

Hence, we have set out in parallel columns an analysis

of the salient features of §1159 and the NIMLO Model:

Birmingham 1944 Code,

$1159, 2d Par., supra

I. Form of Applica-

cation

A. Written.

B. Information.

1. No. of persons,

vehicles and ani-

mals. ©

2. Purpose. .

3. Route (or place

of demonstration).

4. Time not re-

quired to be

given.

NIMLO Model

I. §10-304

A. On forms provided by

Chief of Police.

B. Information.

“(a) The name, address and tele-

phone number of the person

seeking to conduct such parade;

“(b) If the parade is proposed

to be conducted for, on behalf of,

or by an organization, the name,

address and telephone number of

the headquarters of the .organi-

zation, and of the authorized and -

responsible heads of a organ-

- ization;

(c) The name, address and a

will be the parade chairman pad

who will be _— for its

conduct ;

“(d) The date when the parade

is to be conducted ;

Birmingham 1944 Code, .

$1159, 2d Par., supra

- such parade; the type of animals,

NIMLO Model

«(e) The route to be- traveled,

the starting point and the Aer- :

mination point; - vA :

“(f) The approximate number of.

persons who, and animals and ae

vehicles which, will constitute

and description of thie vehicles; .

«(g) The hours when such pa-

rade will. start and terminate;

% “(h) A statemenit as to whether ~~ *"

the parade ? will occupy all or only

a portion of the width of the

tebe proposed to be traversed ;

. “(i)- The. location hy streets of

any assembly areas for such pa-

_ rade;

“(j) The time at which units of -

the parade will begin’to assemble

~ at any” ‘such assembly area or

areas ;¢

“(k) ‘The interval of space to be

- maintained between units of such

parade.

- 8) the parade is ‘designed to:

“be held by, and on behalf of or “a

for, any person other than the =

applicant, the applicant for such -

permit shall file with the Chief

| 47a

Birmingham 1944 Code, ore

§1159, 2d Par., supra NIMLO Model

of Police #-.communication in

writing from the person propos-

ing to hold the parade, authoriz-

ing the applicant to apply for the

« permit on his behalf. —

“(my Any additional informa-

tion which the Chief of Police

shall find reasonably: necessary

to a fair determination as. to

_whether a permit should issue.

“. C. Late application: ................

- days before proposed

parade.

D. Fee: $

‘Il, Exceptions a. Exceptions §10-303

A. Funeral proces- A. Funeral procéssions.

sions only exception.

B. Students going to and arom

classes, etc.

C. A governmental agency : act-

| ing within scope.

III. Standards for IH. Standards §10-305

Issuance = | |

A. “The commission “Szcrion 10-305. Standards for

shall grant * * * and Issuance. The Chief of Police

prescribing the shall issue a permit as provided

streets” vl *-unless for hereunder when, from a con-

12 §10-308 of NIMLO Model empowers the Chief of Police to issue

an alternate permit, i. e., for a different* time or route from that

_ proposed.

Birmingham 1944 Code,

§1159, 2d Par., supra

in its judgment” the

permit should be re-

fused because of any.

one or more of the -

following:

1. Public welfare;

2. [Public] peace;

3. [Public] safety;

‘4, [Public] health;

ak iF [Public] de- _

cency ;

6. [Public] good

order;

7. [Public] morals;

° a

8. [Public] con-

venience.

48a

NIMLO Model -

sideration of the application and

from such other information 2: ©

may otherwise be obtained, he

finds that:

“(1) The conduct of the parade

will not substantially inteyrupt |

the safe and orderly movement:

of other traffic contiguous to its

route ; | . —

| -d The conduct of the parade .

not require the diversion of

so great a number of police of-

ficers of the City to properly po-

lice the line of movement and the

areas contiguous thereto as to

prevent normal police protection

to the City; _

| ie The conduct of such parade

will not require the diversion of

‘Se great a number of ambulances

as to. prevent normal ambulance

service to portions of the City

other than ‘that to be occupied

by the proposed line of march

and areas contiguous thereto;

“(4) The concentration of per.

sons, animals and vehicles at as

sembly points of the parade will:

SETA AAS ob . Ba RE

in ee ee hs

Birmingham 1944 Code,

§1159, 2d Par., supra

ca

IV. Appeal Procedure:

~ None, except to

courts, presumably

by way of mandamus ©

with alternative

prayer for certiorari.

49a

NIMLO Model

not. unduly interfere with proper

fire and police protection of, or »

ambulance service to, areas con-

tiguous to such’assembly areas;

“(5) The conduct of such parade

will not interferé with the move-

ment of fire-fighting oprpneent

_ enroute to a fire;

“(6) The conduct of the parade

is not reasonably likely to cause

injury to persons or property, ©

to provoke disorderly conduct or

create a disturbance;

“(7) The parbde is scheduled to

move from its point of origin to

' its point of termination expedi-

tiously and without unreasonable

delays enroute; 4 ‘

—

“(8) The arade.-is not to be

held for the sole purpose of ad-—

vertising any product, goods or

event, and is not designed to be

held purely for private profit.” |

IV. Appeal Procedure: §10-307~

“Section 10-307. Appeal Proce-

dure: Any person aggrieved

shall have the right to appeal the

denial of a parade permit to the

City Council. The appeal shall

-

50a

Birmingham 1944 Code, Pints

” $1159, 2d Par., supra ; NIMLO Model

: _ be taken within .......... days after’ |

notice. The City Council shal! .

--act upon the appeal within ..*.......

days after its receipt.”

A keystone illustration of the canon of strict (or at least

“ literal) construction uf a penal law is found in McBoyle v. »

United States, 283 U. S. 25, at 27. There the government

. tried to apply the Dyer Act to punish theft of an airplane.

Holmes, J., concluded :

“Although it is not likely that a criminal will cnnvbally

consider the text of the law before he murders or ©

steals, it is reasonable that a fair warning should be

given to the world in language that the common world

will understand, of what the law intends to do if a

certain line is passed. To make the warning fair, so

far as possible the line should be clear. When a rule

of conduct is laid down in words that evoke in the

common mind only the picture of vehicles moving on

land, the statute should not be extended to aircraft,

simply beéause it may seem to us that a similar policy

applies,°or upon the speculation that, if the legisla-

ture had thought of it, very likely broader words would

' have been used. United States v. Thind, 261 U. 8° 204,

909. 9

And from a Massachusetts case we bite :

“** * Prima facie, mere sauntering or Joitering on a

’ public way is lawful and the right of any man, woman,

or child. This the Commonwealth concedes. Under the ©

5la

ordinance, such conduct continues conditionally lawful

subject to a direction to move on by a police officer

followed by unreasonable failure to comply and the ex-

_ piration of seven’ minutes. Not all idling is prohibited,

but only that which is unreasonable. The ‘vice gf the

ordinance lies in its failure to prescribe any standard

‘capable of intelligent human evaluation to enable one

chargeable with i+ violation to discover those condi- ©

‘tions which convert conduct which is prima facie law-

ful into that which is criminal. A ‘statute which either

forbids or requires the doing of an act in terms so

vague that men of common intelligence ‘must neces-

- sarily guess at its meaning and differ as to its appli-

cation, violates the first essential of due proeess of

law.’ Connally v. General Construction Co., 269 U. S.

385, 391 * * *”—Commonwealth v. Carpenter, 325

Mass. 519, 91 N. E. 2d 666. |

Coils General Const. Co., 269 U. 8. 385, is probably

the most frequently cited case in this area: :

“cs

* * © The result is that the application of the law

depends not upon a word of fixed meaning im itself,

or one made definite by statutory or judicial definition,

or by the context or other legitimate aid to its con-

struction, but upon the probably varying impressions

of juries as to whether given areas are or are not ‘to be

included within particular localities. The constitu- |

tional guaranty of due process cannot be allowed to

rest upon a support so equivocal. n° -

In United States v. ‘Cardiff, 344 U. S. 174, Douglas, J.

said:

52a ©

¢ e\

td

“All that the Department says may be true. But it does

not enable us to make sense out of the statute. No-

where does the Act say that a factory manager must-

allow entry and inspection at a reasonable hour. Sec-

tion 704 makes entry and inspection conditioned on

‘making request and obtaining permission’. It is that

entry and, inspection which §301 (f) backs .with a

sanction. It would seem therefore on the face of the.

statute that the Act prohibits the refusal to permit

inspection ‘only if permission has been reviously |

granted. Under that view the Act makes ie the

revocation of permission once given, not ‘the failure

to give permission. But that view would breed a host

of problems. Would revocation of permission once

given carry the criminal penalty no matter how long

ago it was granted and no matter if\it had no relation

to the inspection demanded? Or must the permission

granted and revoked relate to the demand for inspec- .

tion on which the prosecution is based? Those uncer-

tainties make that construction pregnant with danger

for the regulated business. The alternative construc--

~ tion pressed on us is equally treacherous because it

gives conflicting commands. It makes inspection de-

pendent on consent and makes refusal to allow inspec-

tion a crime. However we read §301 (f) we think it

is not fair warning (cf. United States v. Weitzel, 246

U. S. 533, McBoyle v. United States, 283 U. S. 25)

to the factory manager that if he fails to give consent,

he is a criminal. The vice of vagueness in criminal

statutes is the treachery they conceal either in deter-

mining what persons are included or what acts ‘are

prohibited. Words which are vague and fiuid (ef.

United States v. Cohen Grocery Co., 255 U. S. 81) may

*

53a .

be as much of a trap for the innocent as the ancient

laws of Caligula. We cannot. sanction taking a man

by the heels for refusing to grant the permission

which this Act on its face apparently gave him the

_ right to withhold. That would be making an act crimi-

nal without fair and effective notice. Cf. Herndon v.

Lowry, 301 U. S. 242.” |

This general rule of strict construction of penal laws

. began early in our courts, both state and Federal. Thus,

Washington, J., in United States v. Sharp (1815), Pet.

C. C. 118, at 122, said:

“* * * Laws which create crimes ought to be so ane

in themselves or by reference to some other standard,

that all men subject to their penalties may know what

acts it is their dyty to avoid. ae:

See also United States v. ahs: 134 U. S. 624; United

States v. Brewer, 139 U. S. 278; ef. Nash v. United States,

229 U. S. 373—“restraint of trade” has an ascertainable

common law meaning. Eubank v. Richmond, 226 U: S. 137 ;

Panhandle Co. v. Highway Comm.,.294 U. S. 613.

‘By 1914 we find the court subsuming the rule into its

“. concept of due proeess and under the Fourteenth Amend:

ment rather than the Sixth. International Harvester Co. v.

Kentucky, 234 U. 8. 216, struck down a state anti-trust law

which used “real value.” Cf. Kentucky Constitution 1891,

§198. :*

In Winters v. New York, 333 U. 8. 507, Reed, J., said:

«*** The standards of. certainty in statutes punish-

ing for offenses is higher than in those depending

primarily upon civil sanction for enforcement. The

54a

crime ‘must be defined with appropriate definiteness.’

Cantwell v. Connecticut, 310 U. S. 296; Pierce v. United

States, S14 U. S. 306, 311. * e?.,

“The impossibility of defining ‘the precise line between

permissible uncertainty in statutes caused by describ-

ing crimes by words well understood through long

use in the criminal law—obscene, lewd, lasfivious, filthy,

“indecent or disgusting—and the unconstitutional vague-

ness that leaves a person uncertain as to the kind of

prohibited conduct—massing stories to incit@ crime—

has resulted in three arguments of this case in this

Court. The legislative bodies in draftsmanship obvi-:

ously have the same difficulty as do the judicial in in-

terpretation. * * *

‘«* © * But even‘ considering the gloss put upon the’

literal meaning by the Court of Appeals’ restriction of

the statute to collections of stores ‘so massed as to

become vehicles for inciting violent and depraved

crimes against the person * * * not necessarily * * *

sexual passion,’ we find the specification vf publica-

tions, prohibited from distribution, too uncertain and

indefinite to justify the conviction of ‘this petitioner. :

’ Even though all detective tales and treatises on crim- /

inology are not forbidden, and though publications :

made up of criminal deeds not characterized by

_ bloodshed or lust are omitted from the interpretation

of the Court of Appeals, we think fair use of collections

of pictures and stories would be interdicted because of

the utter impossibility of the actor or the trier to know

where this new standard of guilt would draw the line

between the allowable and the forbidden publications.

'

—_ eemene —

Ieee Ae roel t Wa RRA

—-Bba eis he.

_ No intent or purpose is required—no indecency or

. obscenity in any sense heretofore known to the law.

So massed as to incite to crime’ can become meaning-

ful only by concrete instances. This one example is

not enough. The clause proposes to punish the print-

ing and circulation of publications that courts or juries

may think influence generally persons to commit crime

of violence against the person. No conspiracy to com-

mit a crime is required. See Musser v. Utah, 333 U. S.

95. It is not an effective notice. of new crime. The

clause has no technical or common law meaning. Nor

can light as to the meaning be gained from the section

_as a whole or the Article of the Penal Law under which

it appears. * * *

* * a + a

«@** Where a statute is so vague as to make criminal

an innocent act, a conviction under it cannot be sus-

tained. Herndon v. Lowry, 301 U. S. 242, 259.”

In the “Miracle” censorship case, Joseph Burstyn, Inc.

v. Wilson, 343 U.S. 495, the word “sacrilegious” (contrasted

with “blasphemous”) was held to be _o. _ Clark,

J., there said: ae Ne

“*.* * That statute. makes it unlawfel ‘toa exhibit, or

to sell, lease or lend for exhibition at any place of

amusement for pay or in connection with any business

in the state of New York, any motion picture film or

reel [with specified exceptions not relevant here], un-

less there is at the time in full force and effect a

valid license or permit therefor of the education de-

partment...’ The statute fyrther provides:

“(The director of the [motion picture] division [of the

education department] or, when authorized by the re-

56a

gents, the officers of a local office or bureau shall cause

to be promptly examined every motion picture film

subm<ited to them as herein required, and unless such

film or a part thereof is obscene, indecent, immoral, :

inhuman, sacrilegious, or is of such a character that

its exhibition would tend to corrupt morals -or ~~

to crime, shall issue a license therefor. * * *

’ F if

«“* * * Under such a standard the most careful and

tolerant censor. would find it virtually impossible to

avoid favoring one religion over another, and he would

be subject to an inevitable tendency to ban the ex-

pression of unpopular sentiments sacred to a religious

minority. Application of the ‘sacrilegious’ test, in these

or other respects, might raise substantial questions

' under the First Amendment’s guaranty of separate

“church and state with freedom of worship for all: How-

ever, from the standpoint of freedom of speech and the .

press, it is enough to point out that the state has no

legitimate interest in protecting any or all religions

from views distasteful to them which is sufficient to

justify prior restraints upon .the expression of those

views. It is not the business of government in our

nation to suppréss real or imagined attacks upon’ a

particular religious doctrine, whether 8g appear in

publications, speeches, or motion pictures. ,

“Sincethe term ‘sacrilegious’ is the sole standard under

attack here, it ig not nécessary for us to decide, for

example, whether a state may censor motion pictures

under a clearly drawn statute designed and applied -to

- prevent the showing of obscene films. That is a very

different question from the one now before us. We.

5 4

57a

eas that under the First and Fourteenth Amend--

ments a state may not ban a film on the basis of a

censor’s conclusion that it is ‘sacrilegious.’ ”

Reference may also be had to-the following articles:

Amsterdam, The Void-for-Vagueness Doctrine, 109 U. Pa.

L. Rev. 67; Aigler, Legislation in Vague or General Terms,

21 Mich. L. Rev. 831; Freund, Use of Indéfinite Terms in

_ Statutes, 30 Yale L. J. 437; ‘Hall, Strict or Liberal Construc-

tion of Penal Statutes, 48 H. L. Rev. 748; Hall and Selig-

man, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641;

Note, Statutory Standards of Personal Conduct: Indefi-

niteness and Uncertainty as Violations of Due Proces, 38

H. L.. Rev. 963; Note, Indefinite Criteria of Definiteness in

Statutes, 45 H. L. Rev. 160; Note, Void for Vagueness: An

Escape from Statutory Interpretation, 23 Ind. L. J. 272;

Horack, Constitutional Liberties and Statutory Construc-

tion, 20 Iowa L. Rev. 448; Quarles, Some Statutory Con-

struction Problems and Approaches im Crimmal ‘Law, 3.

Vand. L Rev. 531; Morris, Case Note, % Tex. L. -Rev.

216 and Case Note, 33 Va. L. Rev. 203.

Nor is this principle a stranger to our jurisprudence.

Carter, 243 Ala. 575, 11 So. 2d 764; ai 254 Ala.

482, 48 So. 2d 794.

Mr. Justice Simpson well stated the rule in Bolin, 266

‘Ala. 256, 96 So. 2d 582,-where the court on certified ques-

_ tion held the stink bomb law void for vagueness. There

we find: _ e

“Tf the provision can be sustained as OE ae it

must be under the police power of the state which au-

thorizes the imposition of- reasonable regulations in

the interest of public health, public morals, - public

safety or the general welfare. Looking to one of the

* .

58a

earliest authorities, Blackstone defines this power to

be ‘the due regulation and domestic order of the. king-

dom: whereby the individuals of the State, like meni-

bers of a well governed family, are bound to. conform.

their general behavior to the rules of,propriety, good

neighborhdod, a and good manners; and to be‘decent, in-

dustridus and inoffensive in their respective stations.’

4 Blackstone Commentaries 162.

“Mr, Justice ‘Holmes, speaking for the Supreme Court.

« of the United States in ‘Noble State Bank v. Haskell, ,

219 U. S. 104, ‘111, observed :

ie Tt may be said in a general way that the police power

S aa extends to’all the great public needs. Camfield v.

_- United States, 167 U. S:-518, 17 S. Ct. 864, 42 L. Ed.

260. It may be put forth in’ aid of what is sanctioned by -

usage, Or held by the prevailing morality, or strong and

: ° pre derant opinion to be greatly and immediately

necessary to the public welfare.’ 5

“tes — oe ae oor

°

“Tt is also settled law that ‘In enacting a criminal stat-

ute, there is an obligation on the State to so frame

‘it that those who are, to administer it and those to whom

-it is-to be administered may know what standard of

ee is intended to be required and legislation may

oul of the due process clause because of a failure’

sto set up any sufficient guidance to those who woild be

“..:

cause of an.accusation he is called on to answer, or to

guide the courts.in the law’s enforcement.’ Kahalley

_-v. State, 254 Ala. 482, 483, 48 So. 2d 794, 795; Seals. v.

se

° law-abiding, or to advise a defendant of the nature and & |

State, - Ala. 5, sail So. 682; Standard Oil Co. v.

ty

a

| te the jiaak y

642, 92 So. 2d

~e

=

Bieri Ala..400, 59 So. 667; Carter v. State, 243

a. 575, 1r So. Sa 764. % Wig,

“And a person is not required to egorulaie as to the

meaning of a statute at the peril of his freedom. Lan-”

zetta v. State of New J ersey, 306 U. S. 451,-59 S. Ct.

.618, 83 L. Ed. 888.. The .intent .of the legislature must *

appear from the face of the statute. —, Oil Co.

.V. State,. —

, 1957, in State v. Homan, 38 Ala. App.

—where a trial court had held Code

' 1949, T. 41, ‘$221, pabtiy, 3, uncgnstitutional, we reversed.

The opinion compasses a number of Ala cases both

Of 1 imprecise words and constitutional holdings: ,

“We are cited to the peeping tom case, Kahalley v.

State, 254 Ala. 482, 48 So. 2d 794’ 795. The gist of

the offense there was for any male person‘to go ‘near

and stare * * * into any room *.* * not his own or -

under his control, which is ocsupied by any female per-

son * * *.2 This case in turn is bottomed on the Four--

teenth Amendment to the Federal-Constitution via.

_ Winters v. People of State of New'York, 333 U. S, 507,

' 68 8S. Ct. 665, .92 L. Ed. 840, ard noe cases therein

cited. ©

“And from the Kahalley decisign sprang Connor v. City

of Birmingham, 36 Ala. App. 494, @) So. 2d 474. The »

offense there was that no two persons of opposite sex

(except man and wife and parent and minor child) ~

. shall occupy jointly and privately any room in any

lodging hoz:ce; hotel, ete. =

“These | cases illustrate what, in the absence of concepts

of due process, would nevertheless be obnoxious crimi-

— 60a.

nal legislation. Thus in Kahalley the fallacy is ex-

posed by the question, ‘How far is near?’ In Connor

the language, though unambiguous, ‘is: so broad and

sweeping as to raise. a presumption’ that the legislator

would not have so intended unless he had added all

inclusive words, and absent the. all inclusive words

the courts would not attempt to re-legislate, 36 Ala.

- . App. at page 499, 60 So. 2d at page 477. ‘

“Subdivision 3 of Section 221 [T. 41], supra, is sever-

able * * ** * * * we are of the opinion that there is

no-denial of due process of law nor is the language of

the subdivision so vague as to be meaningless. There

are’no imprecise words such as ‘profiteering’, ‘neces-

sity of life’, State v. Goldstein, 207 Ala. 569, 93 So.

308, ‘profit, gain or advantage, unusual in the. ordinary

course of legitiniate business’, State v. Skinner, 20 Ala.

App. 204, 101 So. 327, 329, or ‘near’, Kahalley v.

State, supra. See also Parisian Co. v ,, Williams, 203

Ala. 378, at page 383,83 So. 122 at page 127. sdidiied

| Since the only stated standards’ for refusing a dermit

are those of welfare, peace, safety, health, detency, good

order, morals or convenience, we—ini addition to overbroad-

ness—find these words, as related to a parade, procession or

demonstration,, either sufficiently lacking i in preciseness. or

without a settled applicable common meaning. , —

For example, in Hague v. Gommittee? supra, Roberts, J.,

aptly pointed-out that peace on-the streets” seca be

. achieved by suppression. 2

In‘ the’ context of long drawn out resort: to Seale

courts for relief, these stated “stantlards”—truly ‘only

- sources of power, not means to an end—show §1159 to be

void on its face. 3

o- > *

J * o

6la

. $1159 Is Vor as APPLIED -

om 3 ick Wo-v. Hopkins, supra, held that, Suit a San Fran-

Cisco ordinance aimed at fire hazards had a valid surface

‘ wording, yet its employment against only Chinese laundry- .

__. Maen was discriminatory:-..

Here we-have no direct evidence of any other- persons

"being charged with a breach. of §1159:on the safle occasion

as that of instant concern. Nevertheless, the borderline

case made here against Shuttlesworth, coupled with even

less -plausible presentations reviewed in Primm v. City of

Birmingham, supra, and in two other cases decided here

on the authority of Primm, at the same time as Primm,

constitute a pattern of enforcement. a

In addition to facts listed in the quotation tron J udge

‘“ Johnson’s opinion in Primm ‘(set out hereinabove), we ex-

cerpt also from the evidence of one of the arresting, officers :

“Q. *.* * Were you informed by. anyone that no

_ permits had been issued for any such démonstrations?

A. Yes, sir. At roll call before we came to work they

read out this ordinance number to us and said no one

had received any permits to: hold any kind of demon- —

strations downtown and they read out the ordinance

- to us.”

hack a igs import from Bentley v. City of Birming-

ham, 6 Div. 938, decided on authority of Primm, we extract:

“Q. Is it a. fact, Officer, that the fact that some

people might come down in the downtown area. with |

signs was discussed that morning at Police Headquar-

ters? A. It was. ®

cr _

owe

é, «Q, And_ was the section which Ann oe ey is

charged with discussed also at that time? . A. -_ it

was. |

“Q. Who did you discuss it with, Ofticert A. I be-

‘lieve that the Sergeant read—or, either the Captain

read out the ordinance and said it was 4 violation.

_¥Q. Could you tell us just wht he said with ref-

erence to. this ordinance? i

“Mr. Walker: We object. Wel, go dhand and an-

swer that. .

“A. If I canta correctly,. at roll: call they read

a lot of different things, read auto stolen reports, and

read a lot’of things that come in there, and if I re-

member correctly, I believe they read out the ordinance

and said carrying signs would be prohibited. |

“Q. Did they describe how big the ba had to be?

A. They did not.

“Q. Was there anything else said there - you

remember? A. Not that I recall. :

“Q. Did they describe what type of conduct other ~

than carrying signs would constitute an offense? A. .

I don’t recall any mention of conduct.

e+ @ @* & &

«Q, All that you know about it is that she had the

sign on, she was not in the company of anybody, she

was walking across the street, and in about_gix seconds’

she was arrested? -A. That is correct.

“Q, She didn’t create any disturbance, or block the

street, or anything else other than that, is that right?

A. She did not.

. 68a

, “¢

“Q, Didn't endanger. anybody’s safety, so far as you

know? A. _ did not.” ,

e - ’

Officer —-—— (on ita

a ' * in. I believe you stated that -you, were at the

- roll ¢all fhat morning when they gave you orders about |

: making arrests for violation of 1159? A. They didn’t

_ say make an arrest, they just told us what’ the ordi-

nance number was in case someone was downtown with .

' signs on.

“Q. Wearing signs? A. But, they mart actually ;

say go out and get them.

“Q. Well: ‘now, what were your specific orders with

respect to people wearing signs downtown, if any-

thing? A. I don’t recall any particular orders. They

just notified us of what the situation—of what the City

Code was pertaining to such an incident. | -

“Q. And your understanding’ was that you were to ,

arrest anybody with a sign on? A. My- understanding

is to arrest anybody violating the _— Code” to ‘my

knowledge. ° .

“Q. We are not asking about the other sections in

_ the ‘City Code, we are asking specifically about 1159.

_ Did you have specific orders: to arrest anyoeny: who

was wearing a sign? —

“Mr. Walker: We: object to that, Your Honor.

“Mr Shores: “Your Honor, we are trying to find

- out whether or not he’was given instructions to cover

"that these individuals blocked the street, or whether - . -

_the individuals were creating a disturbance with .

signs, or just what type of sign. -

ais cy

64a, s

pa ne ad er ene oe

“Mr. Walker: Your Honor, we are not trying ‘the

defendant on what the officer thought, or what or- -

ders he was under. The only evidence that will ‘be

considered is the evidence admitted here in this court

‘room, and whether the officer was. under instructions,

or acted even without any instructions, that can

. make no—have no bearing on the case, - because it

will be decided from the evidence. that comes from

the witness. stand.

“Mr. Shores: But, since he did say he did have

_ some instruction, the law was read to him, we want

to question hin about these instructions. They are

the ones who brought that out. We didn’t know

about they had a little meeting and discussed ‘what +

they were to do, so that is what we are trying to

find out, Your Honor.

“The Court: You may ask him.

“Q.* * © were you given any instructions or any

- orders as to what. type of signs a person must be

wearing before you could make an arrest? A. No, I

don’t recall any such ordegs.

“Q. They didn’t tell you how large the sign 1 was to

be, or how small?- A.-No, there was no mention as to

size. Ne 6 |

“Q. Well, , specifically ang was said, at this roll call

with respect to 11597 A. I don’t remember the exact

- conversation. All I know they ‘read out-—they~ ‘said

Article 1159 will cover any demonstrations, or parades, ,

or carrying signs downtown. -They didn’t mention .

what kind of—what the signs were to “say, or what

size, Or what color or anything of that nature.

“Q. In other words, they gave you instructions

coupled with that reading as to what it would require

OT Oe Pa er tia

,

a - 7 ball

e \

ae se ; . 6a

_ to ili the arrest? One of the: requirements was that

& person must. have a sign on?. A. That’s right. .

“Q. And ‘that was all, and that is all you arrested

them for, is ‘that correct? A. That is correct.”

For a case to reach here after a city arrest, it must go

through two tiers of judicial proceedings: first, a trial be-

fore the city recorder; and, second, on appeal from a;con- ~

viction, a trial de novo in the circuit court.

. Trial.in the circuit court can only be had og the city

attorniey’ s filing (unless waived) of a new gomplaint..

Accordingly, a case might come before the recorder with-

out counsel for the city being aware of the prosecution in ~

detail before trial. In the circuit court, the city’s attorney,

under his client’s instruction, is an indispensable actor. |

This pattern of enforcement exhibits a discrimination

within the rule of i tch Wo v. A opmne, supra.

IX.

' THERE Was INSUFFICIENT EVIDENCE TO

Sustain THE CHARGE ,

In a city ordinanee prosecution; the city must sustain

". its case by-proof to the same degree required in case of an

indictable offense, to convince the jury from the evidence

beyond a reasonable doubt.

ao

-Heré, we consider the proof weighed. in this scale fails

‘ to. show a procession which would require, under the terms

of $1159, the getting of @ permit. |

No evidence came in as to whether or not the pedestrians

in question—fifty-two in number, about a football squad ~

with attendants—acted as a aneieve unit as a _—

group would march.

- within, had this to say:

66a

The City failed to show whether or not other pedestrians

were run off the ‘sidewalk, blocked either in access, process —

or transit. No evidence showed whether or not the group

disobeyed traffic lights or officers directing crossings. There

was no evidence of jaywalking or wandering onto the road-

way- | | ata

Were it not for the singing and clapping™ and-some spurts —

of activity indicative of the appellant being a puisne leader.

under Dr. King, in conjunction with the broad definition

-of “street” in the City Code as embracing: the public sife-

walk alongside, we might not have gone to such lengths of

demonstration. < gaea Sree .

The Georgia Court of Appeals, in Montgomery v. Mayor,

ete., of Athens, 105 Ga. App. 57, 123 S. E. 2d 339, where

a number of. men (bearing signs with slogans with scrip-

tural citations) picketed the University of Georgia campus -

while the Attorney General of the United States spoke

“The undisputed facts in this case show that the peti-

‘ tioners did not obstruct or interfere with either .ve-

hicular traffic or pedestrian traffic and were not en-

gaged in any activity which would require a police

escort to direct traffic in conjunction therewith. Not

only did-they not unreasonably burden and interfere

with the normal use of the ‘streets by the publje in the .

City of Athens but the undisputed facts: show that

their activity did not burden or interfere. with the |

normal use of the streets in any manner whatsoever.

We are therefére of the opinion that the activity of

the: petitioners on this occasion did. not constitute. a

18 State v. Hughes, 72 N. C. 25.

67a

parade as eontemplated by the ordinance or by the

waaey accepted definition of a parade. * * * ” |

- Here, the trial iourt erred in.overruling the appellant’s

motion to exclude the evidence for want of a prima facie

case. « ° Ena ‘ 5 , 7

v

Xx.

‘ - Lamrration or OPINIONs |

When this case arose, Cox v: Louisiana, supra; was not

announced. ‘Freedman v. Maryland, supra, was waiting in

the wings> The trial judge rested on a more _— Coz,

v. New Hampshire, supra. . |

We emphasize that we have only before 3 us & walking on

city sidewalks. Inthe use of the roadway probably less

stringent standards of constructién would or. against

the prosecutor.

Moreover, we do not doubt the potentiality of the City’s

adopting an ordinance without suppressing free expression

. or locomotion. We quote from Cox v. Louisiana, supra, per’

Galdberg, J.:

«“** * The rights of free speech and ‘assembly, while

fundamental in our democratic society, ‘still do not

' mean that everyone with, opinions or beliefs to express . ~

may address a group at any public, place and at any

time. The. constitutional guarantee of liberty implies

the existénce of an organized society maintaining pub-

lic 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 responsi-_

bility to insure this necessary order. A restriction in ;

that relation, designed to promote the public. conven- _

, 68a Parte _ P

| jence in the interest of all, and not susceptible to.abuses

- of. discrimimatory application, cannot be’ disregarded

- . by the attémpted exercise of some civil right which, - -

in other circumstances, would be entitled to protection.

One would not bé 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 Timés

“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 nfovement. A group of demonstra-

tors could not insist upon the right, to cordon off a

street, or entrance to ‘a’ publie or private building,

and allow no one to pass who did not agree to listen

to their exhortations. * * * Pada |

: i ee oe °

. “We have no occasion in this ease to consider the con-

stitutionality of the uniform; ‘consistent, and ‘non-dis-

criminatory . application: of a statute forbidding -all

access to streets and other public facilities for parades

and meetings. *-*.*”” (Italics added.)

Ordered liberty is the end for which we enforce laws,

not the wish- for self-immolation. On the bones of the

martyrs to his tyranny man has reve built a lasting sys-

tem of Law. = : oF

Lord Acton in 1877 perceived the jnterplay between

rights: and duties, between competing claims of rights— -

saying: eas . si 8 =a |

oe * * At all times sincere friends of freedom “have a

been rare, and its triumphs have been ‘due to minor-

| ities, that have: proviiiled by associating iia :

. 7 with eusiliaries whose objects often differed’ from

. their own; and this association, whicly i is always dan- —

* gerous, - her been sometimes disastrous, by giving to -_

opponénts just grounds of opposition, and by kindling: .

. dispute over the spoils in the hour of success. Ng_

obstacle has been so constant, or so difficult to over-' « »

come, as uncertainty and confusion touching the na,

“so | tire of true liberty. If. hostile interests’ have ought

much injury, false ideas have wrought'still more; and:

its advance ‘is recorded i in the increase of knowledge,

‘ag much as in the improvement’ of laws. ‘The history ~

cv. Of institutions is ‘often a history of deception and illu-

7 ‘siofs; for their virtue depends on the ideas.that pro-

* duce onl on the spirit that preserves them, and the 7

form may remain unaltered when “the substance has ’

pasqed away.” (Italics added.). | ;

= co Pa

9 "

: ‘or ‘ “4 *. is i

pes xT Conchusion, eae

The appellant had standing to question the ordinance.

Staub v. Baxley, supra; Freedman v. Maryland, supra.

We cohsider that (1) §1159 of the 1944 General Code of

the City of Birmingham, certainly as to the use of side-

‘walks by pedestrians, is void’ for vagueness because of

‘~ overbroad,. y and consequently meaningless, standards -for .

the issuance of permits for processions; (2) said §1159

has been enforced in a pattern without, regard to even the

meaning here ¢jaimed for by the City to such an extent as

to make it unc®hstitutional as applied to pedestrians using

' the sidewalks ; and (3) the City failed to make a case, under

‘oe

a

in the middle of the block betweer 17th and 18th Streets.

?)

a . | A : ; E j : Q. e

‘the purported meaning of §1159,. of there being a need

ia

for the appellant in this case to be covered by a permit

to use the sidewalk in company with others. |

Therefore, the judgment below is due to -be reversed

. and the appellant is due to be discharged sine die.

-. The complaint. filed in the circuit court by- the, City’s

REVERSED AND RENDERED.

>.

Jounson, J. (dissenting) :

attorney charges that appellant “did take, part or partici-

‘pate in a parade or procession on the streets of the City

without having secured a permit therefor from the com-

‘mission, contrary to and in violation of Sec. 1159 of the

ay

General City Code of Birmingham of 1944.7

The evidence, as introduced by the City, tended to show

that during: the afternoon of Friday, April 12, 1963, ap-

proximately 52 persons, most of whom were Negroes, de-

parted from a church in the 1400 Block of 6th Avenue North

s

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 fol-

lowed 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 5t Avenue -North

towards 18th-Street. They were stopped hy a policeman

“Spectators” lining the route fell n behind and followed

the group in formation as they passed by. This crowd of

“'gpectators”—consisting of several hundred persons—did

~* not walk sn formation 2nd had no discernible organization.

' There were also a number of photographers present. The

_ appellant, who is a preacher, ieft the church with the peo-

7la . *

ple 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” trou-

sers. 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 side-

walk, but weré otherwise orderly. No permit was issued

for a paradé or procession to be held on April. 12, 1963.

There is no evidence concerning whether. anyone applied

- for such _permit.

_. Police Officer R. N. Winwtelictham, a wale for the

City, was at 5th Avenue North and 1°th Street when he

first observed the allege rade.or procession. He testi-

fied 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 crow” “ollowing”

the groyp in formation was in the center of #7 reet, and

also th#t he observed appellant in the group m 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 8th 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 furthex stated that appellant was at no

time in line with a partner in the marching group but was

' walking alongside the group talking to them, and giving

them encouragement. ‘Police Officer Herman Evers testi- ~ .

72a

fied that appellant was “bounding from the front to the

rear” of the marching group “waving his arms to come -

on, telling them to come on.” ial :

Appellant’s evidence consists of the testimon of five

witnesses, including himself. His evidence tends to show

that approxjmately 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 blocks 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.” ae tea

- 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 com-

plaint, 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 pro- ___

~ eegsion. Parade. is defined in. Webster’s New International

~ p&tionary, Second Edition, as follows: * )

~ &Any march or procession ; esp. a formal public pro-

cession; the movement of any body marshalled in .

something like military order; as, a parade of firemen;

a cireus parade.” ast

_ Procession, is defined in Webster’s New International

Dictionary, Second Edition, as follows:

—-

. Ba

“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 capitol; to form @ procession.”

In Cox v. 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 with-

out 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 pur-_

* pose did not make it otherwise ... Ht 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

nuinber 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 march-

T4a

ers attracted a crowd of spectators, and some photogra- ©

phers. 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 Bection 1159,

supra.

Appellant's contention that the puneile or procession did

not occur in the street is without merit. A look at Section 2

of thé General City Code.of Birmingham of 1944 discloses

an interit to treat sidewalks as s part of the streets. Section.

2 reads in part:.

. “Bee. 2. Definitions and rules of siti

“In the ¢ construction ion of this code and of all ordi-

nances, the following definitions and rules shall.be ob-.

served, > plone the context clearly requires otherwise.

* ee * .&

“Sidewalk: The term ‘sidewalk’ shall mean that por-

tion of a street between the curb line and adjacent

property line.”

In common parlance, a “sidewalk” is the part of a street

assigned tofthe 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. New Hampshire, supra. Sec.’1159, supra, pro-

hibits a parade or procession on any pn 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 rcmuuins to the effect that

. Ta

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 ap-

pellant, takes ei or participates in a parade or proces-

' sion.

Appellant contends that Section 1159 “vests in the com-:

mission 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 fundamentai right of free speech and

preter such right is subject to reasonable and non-dis-

ting regulation and limitation. |

"ie v. New H es mm, Chief J ustice Hughes |

wrote:

“Civil liberties, as guaranteed be 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

Pre pre erensne eT RE Pe RT retiaididionmmecdalarepieieceeaat eit i intent

;

76a *

the public. convenience in the interest of all, it canhot

» 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 traditional exercise of

control by local government, the question in a partic-

ular case is whether that control 1s exerted so as not

_.to deny or unwarrantedly abridge the right of assem-

- bly and the opportunities for the communication of

‘thought and the discussion of public questions im-

; memsrially associated with resort to public places ®

“In ein « New York, 340 U. S. 290, 71 S.. Ct. 312, 95

“L, Ed. 28, Mr. Justice Jackson wrote that “cities through®

‘out the country have adopted the permit requirement to

Yee private activities on public streets and for other

purposes.” Ordinances of this character have been in effect

in most municipalities of 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 cify

ordinance as unconstitutional if by a reasonable construc-

tion it can be given a field of operation within constitu-

tional 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, 7

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.

sah aiameniaditedmia naiclds Otadadl titanaaitiae

77a

~ | think it is obvious that this ordinance—Section 1159—

was not designgd to suppress in any manner freedoth of

speech or assembly, but to reasonably regulate the use of

the streets in the public interest. It does not seek to con-

trol what may be said on the streets, and is applicable only

to organzied formations of persons, vehicles, eté., 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:

riumber*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 re-

quired information is related to the proper regulation of

the use of the stfeets, and the fact that such information

is required indicates that the power given the licensing au-

thority 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 in-

dicate an intent to- permit the Commission to act capri-

ciously or arbitrarily. The purpose niay have a bearing

on precautions which should be taken by municipal au-

thorities 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 con-

venience 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 pur-

pose of the’ ordinance, one to be exiTchéel in connection.

with the safety, comfort and convenience in the use of

the streets by the general public. The standard to be ap-

plied is obvious from the: purpose of the ordinance. It

: , ¢

_o Be

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 thé streets, and, due ‘to

varying traffic conditions and the>complex problems pre- —

sented 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 defendant’s ‘conten-

tion that the statute vested. unfettered control in the li-

censing authorities. In answering this contention, the

court said:

“The act is implicit " its requirement’ that the’ li--

eensing authority act reasonably in granting or deny-

ing licenses, and with reference to the object of public

‘ order on the public ways. If it does not in express:

woe TE OE hetoelonae sent aaaintiinaiatinlt wre

fee : "(9a

“terms ‘adie cotifort or contuiheail in ’ the lyse of

streets * * * the standard of official action’ (Hague v.

| Committee for Industrial Organization, 307 U. S. 496, °

| 518, 59 S. Ct. 954, 964, 83 L, Ed. 1423) the necessary

Pieter n

inference is that it does, based upon the presumption

in favor of the validity of legislation as re-enforced by

_ the express- provisfon of the act bestowing ‘delegated

powers’ upon the authority, as a grant intended to be .

only of due legislative power which may proper! be |

delegated. Tle- discretion thus vested in the authority

is limited in its exergisé by the bounds of reason, in

uniformity of method of treatment upon the facts of

each application, free from improper or inappropriate

consideratidns 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 au-

thority has no delegation of power in excess of that

which the’ legislature granting the power has, and ,

- the legislature —- to delegate no power ‘it did

not pany ar ’ aa ;

. The ‘United States Supreme Court, in a unanimous deci-

sion, held that the statute, as construed by the Supreme

Court of New Hampshire, violated no federal constitu-

tional rights. of ‘the defendants. Cox v. New Hampshire,

supra.

The constraction adopted by the Supreme Coin of New .

. Hampshire is sound. I Would place the same ) construction

upon the ordinance here. for review. |

There is nothing in the record before uis-tending to show

that ‘the ordinance has been applied ‘in other than a fair

and non-discriminatory manner. I cannot agree that this

z . ‘¢ ;

‘ ‘ ’ .

; ; as : os st

we Oded edad ea a te Raid Be dati 4 ceils Sileas Minit ins trated 1 htheanarenian ince wd Acai eerapn

. /- i) ” . a J ‘

. 80a ee «

case, coupled y with Primm v. City of Birmingham, —— Ala.

| App. ——-, 177 So. 24 236, 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, has

been argued, nor does. such. violation. appear from. the =

record or extrinsically. .~ a arty 2

So evanescent are the issues in the congue opinion. I

most respectfully dissent. :

v ®

x