# Appendix — Shuttlesworth v. City of Birmingham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0062%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1969 - **Citation:** 394 U.S. 147 ## Text 2 ee 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 i * : - sees es. ° vr Crry oF BrmMincHam. 4 | PETITION FOR CERTIORARI TO COURT OF APPEALS > aa ~— , e | 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 - - 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 ; Rirminghem. ee” o- - . Pe id ae : | a P ’ , 5 % . be] | 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 | ; PR ARS. SE -# 4a 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 WwW * Ya | ‘ane ' 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 C4 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). > , ’ . _ 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-. wt ee « Y Z a - 4 7 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.’ ¢ F ne 9 rr ae 8a. | “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- - 3 o °° ‘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 ” 1Qa-. | 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 ; ¥ Fis ‘ a? . S ‘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 a 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. . _ — ‘ ; — ; ‘ ° “ P. ; oa . : : 7 : \ , ~ . : . 5 ; x > ss : - f* . - 8 . * ‘ fF .. : a ; 2 12a | 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: ees - “See. 2. Definitions and rules of construction. t3a “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. ' * * -@ . ¥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. ad se ee OO 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. aa, 15a . / e 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. 16a 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. 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 18a 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. Gg * 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’ 19a 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 ~~ « * 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0062%3A3. Public record. Not legal advice.