180 So.2d 114 (Ala.App. 1965), 6 Div. 979, Shuttlesworth v. City of Birmingham

Docket Nº:6 Div. 979.
Citation:180 So.2d 114, 43 Ala.App. 68
Opinion Judge:CATES, Judge.
Party Name:Fred L. SHUTTLESWORTH v. CITY OF BIRMINGHAM.
Attorney:Arthur D. Shores and Orzell Billingsley Jr., Birmingham, Jack Greenberg, Norma C. Amaker and Frank H. Heffron, New York City, for appellant., Wm. C. Walker, Birmingham, for appellee.
Case Date:November 02, 1965
Court:Alabama Court of Appeals

Page 114

180 So.2d 114 (Ala.App. 1965)

43 Ala.App. 68

Fred L. SHUTTLESWORTH

v.

CITY OF BIRMINGHAM.

6 Div. 979.

Court of Appeals of Alabama.

November 2, 1965

Page 115

Rehearing Denied Dec. 21, 1965.

Page 116

[43 Ala.App. 70] Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, Jack Greenberg, Norman C. Amaker and Frank H. Heffron, New York City, for appellant.

[43 Ala.App. 71] Wm. C. Walker, Birmingham, for appellee.

[43 Ala.App. 72] CATES, Judge.

This appeal was submitted February 27, 1964, and was originally assigned to JOHNSON, J.

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, General City Code of 1944. 1

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 v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; and (3) the sufficiency of the evidence.

I.

FACTS

About two o'clock, P.M., Good Friday, April 12, 1963, some fifty-two persons issued from a church on Sixth Avenue, 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, sometimes 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 up coincided with 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 designated cross walks. Nor did they obstruct cars or pedestrians nor disobey ant traffic lights, or officers directing traffic. The only tendency toward showing disorderly conduct lay in evidence that some of the group sang and clapped hands. $The defense adduced no permit for a procession or parade nor was there evidence of anyone applying for a permit. Conversely, the City's proof showed no permit of record for the day in question.

Page 117

[43 Ala.App. 73]

II.

BACKGROUND

A procession has been described as an assembly in motion. 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 manner; 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 possession 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 Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113, 26 L.R.A. 712 spawned what Judge Conway of the New York Court of Appeals characterized as 'the plenary power [of public officers] over use of streets and parks.' People v. Kunz, 300 N.Y. 273, 90 N.E.2d 455, at 462. Cf. Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280.

However, though the Davis case was approved in the United States Supreme Court (167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71), its assurance has been eroded by later First-Fourteenth Amendment cases beginning with Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

Consequently in 1941, we find the court saying in Commonwealth v. Anderson, 308 Mass. 370, 32 N.E.2d 684 (hn. 2), concerning an ordinance of Boston as applied to a Jehovah's Witness:

'* * * there is no suggestion in the agreed facts that the defendant was obstructing traffic, causing danger, or annoying travellers in any way, or that thr form of the placards or the writing upon them was indecent, libellous, likely to incite violence or otherwise objectionable. Nor do the terms of the ordinance itself limit its prohibition to instances where these or similar conditions exist. The particular case here presented is one of the unqualified interdiction of a wholly inoffensive display of placards on a public street unless the defendant 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 to this defendant in this instance violated his constitutional right to do what he did without a previous permit from anyone. * * *'

And in the same volume on a consolidated appeal, Commonwealth 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 Davis case, supra, Commonwealth 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, supra. 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 cannot 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, 59 S.Ct., at 957, is:

'The judgment of the court in this case is that the decree is modified and as modified affirmed. MR. JUSTICE

Page 118

[43 Ala.App. 74] FRANKFURTER and MR. JUSTICE DOUGLAS took no part in the consideration or decision of the case. MR. JUSTICE ROBERTS has an opinion in which MR. JUSTICE BLACK concurs, and MR. JUSTICE STONE an opinion in which MR. JUSTICE REED concurs. The CHIEF JUSTICE concurs in an opinion. MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER dissent for reasons stated in opinion by them respectively.'

Carefully analyzed it is obvious that only Mr. Justice Butler (in dissent) was expressly willing to stand by Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 17 S.Ct. 731.

Roberts, J., 2 said of Davis 3 (515):

'The ordinance there in question apparently had a different 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 well to other activities, not in the nature of civil rights, which doubtless might be regulated or prohibited as respects their enjoyment in parks. In the instant case the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general measure to promote the public convenience in the use of the streets or parks.'

After pointing out that the Jersey City ordinance explicitly required permits only for public parades or assemblies, he made this oft quoted statement:

'* * * 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 between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised 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 ordinance quoted in Note 1 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 refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.'

At this point we pick up the decisions which follow in the train of the Hague

Page 119

[43 Ala.App. 75] case. The early '40's saw the emergence of the Jehovah's Witnesses cases. 4

In Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, the court had held void an ordinance prescribing a permit to distribute literature.

Then after Hague, in 1939, we find: Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104 (1940); Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943); Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Saia v. People of State of New York, 334 U.S. 558, 68...

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