Hamer v. Musselwhite, 23474.

• Decision Date: 05 May 1967
• Docket Number: No. 23474.,23474.
• Citation: 376 F.2d 479
• Parties: Don HAMER et al., Appellants, v. George MUSSELWHITE, Individually and as Chief of Police of the City of Lexington, Miss., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 479 (1967)

Don HAMER et al., Appellants, v. George MUSSELWHITE, Individually and as Chief of Police of the City of Lexington, Miss., et al., Appellees.

No. 23474.

United States Court of Appeals Fifth Circuit.

May 5, 1967.

Melvyn Zarr, New York City, Anthony G. Amsterdam, Philadelphia, Pa., Jack Greenberg, New York City, Henry M. Aronson, Carsie A. Hall, Jackson, Miss., James M. Nabrit, III, New York City, for appellants.

Peter M. Stockett, Jr., Asst. Atty. Gen., William A. Allain, Asst. Atty. Gen., Joe T. Patterson, Atty. Gen., of Mississippi, Jackson, Miss., Pat M. Barrett, Lexington, Miss., for appellees.

Before BELL and GODBOLD, Circuit Judges and NOEL, District Judge.

BELL, Circuit Judge.

Appellants, Negro residents of the City of Lexington, Holmes County, Mississippi, sought declaratory and injunctive relief against defendants, city officials and officials of Holmes County, Mississippi, contending that a 1961 city ordinance which prohibited parades without permission of the mayor and marshal of Lexington was unconstitutional. Their interest in parading was in connection with voter registration activity. The ordinance was thereafter repealed on the advice of the city attorney that it was unconstitutional. See King v. City of Clarksdale, Miss. S.Ct., 1966, 186 So.2d 228; and cf. Strother v. Thompson, 5 Cir., 1967, 372 F.2d 654; Guyot v. Pierce, 5 Cir., 1967, 372 F.2d 658.

Appellants then amended their complaint to attack the constitutionality of an ordinance enacted in 1965 in the place and stead of the repealed ordinance. The new ordinance prohibited parades altogether on Yazoo Street, Depot Street, Carrollton Street, and Court Square (the streets surrounding the courthouse square), in the City of Lexington.¹ It was in fact the same as an ordinance which had been adopted in 1955 and repealed in 1961 when the discretionary ordinance was adopted. The allowance of parades in the discretion of the city officials was to accommodate requests for high school football parades and a merchants Christmas parade.

The theory of the amended complaint was that the streets in question were the main thoroughfares of the city and constituted the area in the city where the expression of views through peaceful parades, demonstrations and assemblies were likely to come to the attention of the residents and public officials of the city. They contended that the ordinance was thus an impermissible restriction of their freedom of speech and assembly and in violation of their First Amendment rights. Cf. Kelly v. Page, 5 Cir., 1964, 335 F.2d 114, 118, 119, on the right to assemble and petition for redress of grievances in a somewhat similar setting.

After an evidentiary hearing, the District Court denied relief, concluding that the 1961 ordinance was not unconstitutional. We affirm.

The facts developed on the hearing disclosed that Lexington is a city of slightly less than 3,000 inhabitants. The block or square on which the state courthouse is situated is the center of the business district. The street surrounding this block is known as Court Square. Four principal streets enter Court Square; Yazoo from the south, Depot from the east, Carrollton from the north, and Spring from the west. Traffic from several of the local streets and from the two state highways which pass through Lexington converges on the courthouse block. State Highway No. 17, which enters the city from the south as Yazoo Street, and State Highway No. 12, connecting the area with U. S. Highways Nos. 49, 51 and Interstate 55, which enters from the east as Depot Street, intersect at the square and continue north as Carrollton Street. There was undisputed evidence of a severe traffic problem in the immediate area of the business district.

It was also undisputed that the city construed the ordinance as appying only to streets, and its application had been limited to the named streets as distinguished from the sidewalks or shoulders of the streets where there were no sidewalks. This application was evidenced by the one parade which had taken place after the adoption of the ordinance. It was organized by appellants. It proceeded on the shoulders and sidewalks of Yazoo Street to the courthouse. This parade involved some 500 Negro citizens and it was held on the day following the adoption of the ordinance. They marched two abreast in a column some three or four blocks long to the courthouse where they assembled on the lawn for singing and praying. They returned by the same route and the police officials of the city assisted them by controlling traffic during the course of the parade. This parade and the program at the courthouse lasted for four hours.

Appellants contend that the ordinance is unconstitutional on its face as being vague and overbroad, and also in application. This position assumes that the prohibition of the ordinance runs to the sidewalks and shoulders and...