206 So.2d 348 (Ala. 1967), 6 Div. 291, Shuttlesworth v. City of Birmingham

Docket Nº:6 Div. 291.
Citation:206 So.2d 348, 281 Ala. 542
Opinion Judge:LAWSON, Justice.
Party Name:Fred L. SHUTTLESWORTH v. CITY OF BIRMINGHAM.
Attorney:Win. C. Walker, Birmingham, for petitioner. Arthur Shores and Orzell Billingsley, Jr., Birmingham, Norman C. Amaker and Jack Greenberg, New York City, opposed.
Case Date:November 09, 1967
Court:Supreme Court of Alabama

Page 348

206 So.2d 348 (Ala. 1967)

281 Ala. 542

Fred L. SHUTTLESWORTH

v.

CITY OF BIRMINGHAM.

6 Div. 291.

Supreme Court of Alabama.

November 9, 1967

[281 Ala. 543] Wm. C. Walker, Birmingham, for petitioner.

Arthur Shores and Orzell Billingsley, Jr., Birmingham, Norman C. Amaker and Jack Greenberg, New York City, opposed.

Page 349

LAWSON, Justice.

Fred L. Shuttlesworth was convicted in the Recorder'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:

'It shall be unlawful to organize or hold, or to assist in organizing 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 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 be unlawful to use for [281 Ala. 544] such purposes may other streets or public ways than those set out in said permit.

'The two preceding paragraphs, however, shall not apply to funeral processions.'

The word 'commission' as used in § 1159 refers to the govering body of the City of Birmingham.

Following his conviction in the Recorder's Court, Shuttlesworth appealed to the Circuit Court 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 judgment 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 Birmingham.

Shuttlesworth than appealed to the Court of Appeals of Alabama which court, in a two-to-one decision, reversed the judgment of the Circuit Court of Jefferson County and rendered a judgment discharging Shuttlesworth 'sine die.' Judge Cates wrote the majority opinion, in which Presiding Judge Price concurred. Judge Johnson dissented.--Shuttlesworth v. City of Birmingham, 43 Ala.App. 68, 180 So.2d 114.

The City of Birmingham filed petition 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 certain as to the exact reasons why the majority of the Court of Appeals concluded the Shuttlesworth's conviction should be reversed and that he should be discharged sine die, we will treat that opinion as holding that § 1159 is void on its face because of overbroad and consequently meaningless standards for the issuance of permits for parades or processions; that said section has been enforced by the City of Birmingham in such a way as to make it unconstitutional under the holding of the Supreme Court of the United States in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.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 demonstration in the streets or other public ways of the City of Birmingham without first having obtained a permit as required by § 1159.

In view of the fact that there was 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

Page 350

of the facts. However, the dissenting opinion of Judge Johnson contains a rather lengthy recitation of the facts and our examination of the original record shows that the facts as stated in the dissenting opinion are fully supported by the record.

The dissenting opinion, unlike the majority opinion of the Court of Appeals, takes cognizance of the rule so often stated by the appellate courts of this state, to the effect that it is the duty of courts not to strike down a city ordinance or a statute as unconstitutional, if by reasonable construction it can be given a field of operation within constitutional 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 proceeds to construe § 1159, saying:

'I think it is obvious that this ordinance--Section 1159--was not designed to suppress in any manner freedom of speech or assembly, but to reasonably regulate the use of the streets in the public interest. It does not seek to control what may be said on the streets, and is applicable only to organize (sic) formations of persons, vehicles, etc., using the streets and not to individuals or groups [281 Ala. 545] not engaged in a parade or procession. The requirement that the applicant for a permit state the course to be travelled, the probable number of persons, vehicles and animals, and the purpose of the parade is for the purpose of assisting municipal authorities in deciding whether or not the issuance of a permit is consistent with traffic conditions. Thus, the required information is related to the proper regulation of the use of the streets, and the fact that such information is required indicates that the power given the licensing authority was not to be exercised arbitrarily or for some purpose of its own. The requirement that the applicant state the purpose of the parade or procession does not indicate an intent to permit the Commission to act capriciously or arbitrarily. The purpose may have a bearing on precautions which should be taken by municipal authorities to protect parades or the general public.

'Section 1159, supra, provides that the Commission shall issue a permit 'unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.' I do not construe this as vesting in the Commission an unfettered discretion in granting or denying permits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfort and convenience in the use of the streets by the general public. The standard to be applied is obvious from the purpose of the ordinance. It would be of little or no value to state that the standard by which the Commission should be guided is safety, comfort and convenience of persons using the streets, and, due to varying traffic conditions and the complex problems presented in maintaining an orderly flow of traffic over the streets, it would be practically impossible to formulate in an ordinance a uniform plan or system relating to every conceivable parade or procession. The members of the Commission may not act as censors of what is to be said or displayed in any parade. If they should act arbitrarily, resort may be had to the courts. It is reasonable to assume from the facts in this case that the Commission would have granted appellant a permit to engage in the parade if such permit had been sought. A denial would have been warranted only if after a required investigation it was found that the convenience of the public in the use of the streets at the time and place set out in the application would be unduly disturbed.' (180 So.2d 144)

We agree with and adopt the construction which Judge Johnson has placed on § 1159 and we agree with his observations to the

Page 351

effect that such construction finds support in the case of State v. Cox, 91 N.H. 137, 16 A.2d 508, which case was affirmed, in a unanimous decision, by the United States Supreme Court.--Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct....

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