Phifer v. City of Birmingham

Decision Date05 November 1963
Docket Number6 Div. 930
PartiesJames S. PHIFER v. CITY OF BIRMINGHAM.
CourtAlabama Court of Appeals

Orzell Billingsley, Jr., and Peter A. Hall, Birmingham, for appellant.

Wm. C. Walker, Birmingham, for appellee.

PRICE, Presiding Judge.

Appellant, James S. Phifer, was convicted by the court sitting without a jury, under a complaint charging him with loitering on a street corner with others so as to obstruct the sidewalk; and, for refusing to comply with a lawful order of said police officer in violation of certain ordinances of the City of Birmingham.

The Complaint is as follows:

'COUNT ONE

'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that James S. Phifer, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did stand, loiter or walk upon a street or sidewalk within and among a group of other persons so as to obstruct free passage over, on or along said street or sidewalk at, to-wit: 2nd Avenue, North, at 19th Street or did while in said group stand or loiter upon said street or sidewalk after having been requested by a police officer to move on, contrary to and in violation of Section 1142 of the General City Code of Birmingham of 1944, as amended by Ordinance Number 1436-F.

'COUNT TWO

'Comes the City of Birmingham, Alabama, a municipal corporation, and complains that James S. Phifer, within twelve months before the beginning of this prosecution and within the City of Birmingham, or the police jurisdiction thereof, did refuse to comply with a lawful order, signal or direction of a police officer, contrary to and in violation of Section 1231 of the General City Code of the City of Birmingham.'

Section 1142 as amended, of the General City Code of Birmingham reads:

'Street and Sidewalks to be Kept Open For Free Passage.

'Any person who shall obstruct any street or sidewalk or part thereof in any manner not permitted by this code or other ordinance of the city with any animal or vehicle, or with boxes or barrels, glass, trash, rubbish or display of wares, merchandise or sidewalk signs, or other like things, so as to obstruct the free passage of persons on such streets or sidewalks or any part thereof, or who shall assemble a crowd or hold a public meeting in any street without a permit, shall, on conviction, be punished as provided in Section 4.

'It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.'

Section 1231 reads:

'It shall be unlawful for any person to refuse or fail to comply with any lawful order, signal or direction of a police officer.'

The sufficiency of the complaint is challenged by motion to quash and by demurrer.

The refusal of the trial court to quash the complaint is not reviewable on appeal. White v. City of Birmingham, 41 Ala.App. 181, 130 So.2d 231.

The first three grounds of demurrer are the same as those pointed out in Gober v. City of Birmingham, 41 Ala.App. 313, 133 So.2d 697, as being general in nature and properly overruled.

The remaining grounds of demurrer are as follows:

'4. That Sections 1142 as amended by No. 1436F, and 1231 of the 1944 General City Code of Birmingham, Alabama, are invalid in that they violate Section 4, Article 1, of the Constitution of Alabama, and the First and Fourteenth Amendments to the Constitution of the United States of America.

'5. That Sections 1142 as amended by No. 1436F, and 1231 of the 1944 General City of Birmingham, Alabama, which supports the complaint, affidavit or information in this cause, constitutes an abridgment of freedom of speech and assembly violative or rights and liberties secured the defendant by the First and Fourteenth Amendments to the Constitution of the United States of America.

'6. That the aforesaid ordinances are unconstitutional on their face in that they are so vague as to constitute a deprivation of liberty without due process of law in violation of the provisions of the Fourteenth Amendment to the United States Constitution.

'7. That said Ordinances or Statutes constitute an abridgment of privileges and immunities guaranteed defendant as a citizen of the United States, in violation of the Fourteenth Amendment to the United States Constitution.

'8. That said Ordinances constitute a denial of equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States of America.'

Section 1142, as amended, of the General City Code of Birmingham, is not aimed at free speech. It directs the manner in which sidewalks and streets may not be used. A municipality has the right under its police power to enact and enforce reasonable regulations for the control of traffic and the use of its streets and sidewalks. Ordinances similar to the one on which the first count of the complaint is based have been upheld in courts of other states as reasonable regulations in the exercise of police power. City of Tacoma v. Roe, 190 Wash. 444, 68 P.2d 1028; Benson v. City of Norfolk, 163 Va. 1037, 177 S.E. 222; Ex parte Bodkin, 86 Cal.App.2d 208, 194 P.2d 588. We hold that the trial court properly overruled the demurrer as to Count One of the complaint.

While the demurrer in its caption is directed to the complaint, 'and to each and every count thereof, separately and severally,' it is really interposed to the two counts of the complaint jointly. When this is the case, if one of such counts is not subject to the defect urged the demurrer should be overruled as to the entire complaint. Howison v. Oakley, et al., 118 Ala. 215, 23 So. 810; Webb v. Litz, 39 Ala.App. 443, 102 So.2d 915.

Furthermore, the assignment of error as to the ruling on demurrer is:

'The court erred in denying and overruling the defendant's demurrer to the affidavit, warrant, and/or complaint filed in this cause.'

In Central of Georgia Railway Co. v. Hinson, 262 Ala. 223, 78 So.2d 286, the court said:

'If the demurrer to any one of the counts was properly overruled, a joint assignment of the judgment overruling the demurrer to the several counts cannot be upheld, regardless of whether the ruling was correct as to the other counts. Western Railway of Alabama v. Arnett, 137 Ala. 414, 34 So. 997; Alabama Great Southern R. Co. v. Clarke, 145 Ala. 459, 39 So. 816, 817; Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Cahaba Coal Co. v. Elliott, 183 Ala. 298, 307, 62 So. 808; Allison-Russell-Withington-Co. v. Sommers, 219 Ala. 33, 121 So. 42.'

The city's evidence tended to show that the defendant and one Shuttlesworth were standing in a crowd of about ten or twelve persons at the...

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12 cases
  • State v. Hudson, No. 5948
    • United States
    • New Hampshire Supreme Court
    • February 26, 1971
    ...free passage. * * *' Wright v. City of Montgomery, supra 406 F.2d at 875. See People v. Diaz, supra. Cf. Phifer v. Birmingham, 42 Ala.App. 282, 160 So.2d 898, 899 (1964). See Annot., 65 A.L.R.2d 1152 (1959); Bacheller v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 While we recogni......
  • Shuttlesworth v. City of Birmingham
    • United States
    • U.S. Supreme Court
    • November 15, 1965
    ...for the enforcement of the orders of the officers of the police department in directing such traffic.' Phifer v. City of Birmingham, 42 Ala.App. 282, 285, 160 So.2d 898, 901.8 The record contains no evidence whatever that Patrolman Byars was directing vehicular traffic at the time he told t......
  • Smith v. City of Birmingham
    • United States
    • Alabama Court of Appeals
    • October 6, 1964
    ...the city after having been requested by any police officer to move on.' Birmingham Code 1944, § 1142, as amended. Phifer v. City of Birmingham, 42 Ala.App. 282, 160 So.2d 898, and Shuttlesworth v. City of Birmingham, 42 Ala.App. 296, 161 So.2d 796, show the ordinance is prima facie good. We......
  • Baines v. City of Birmingham
    • United States
    • Alabama Court of Criminal Appeals
    • June 30, 1970
    ...to quash the complaint is not reviewable on appeal. White v. City of Birmingham, 41 Ala.App. 181, 130 So.2d 231; Phifer v. City of Birmingham, 42 Ala.App. 282, 160 So.2d 898. The demurrer was properly overruled. The ordinance follows the language of Section 119(1), Title 14, Code of Alabama......
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