O'Rourke v. City of Birmingham

• Citation: 27 Ala.App. 133,168 So. 206
• Decision Date: 18 February 1936
• Docket Number: 6 Div. 877
• Court: Alabama Court of Appeals
• Parties: O'ROURKE v. CITY OF BIRMINGHAM.

168 So. 206

27 Ala.App. 133

O'ROURKE v. CITY OF BIRMINGHAM.

6 Div. 877

Court of Appeals of Alabama

February 18, 1936

Rehearing Denied March 17, 1936

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Prosecution by the City of Birmingham against John M. O'Rourke. From a judgment of conviction, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in O'Rourke v. City of Birmingham (6 Div. 948) 168 So. 209.

Robert F. Proctor, of Birmingham, for appellant.

W.J Wynn and John S. Foster, both of Birmingham, for appellee.

BRICKEN, Presiding Judge.

On appeal from the recorder's court of the city of Birmingham to the circuit court, this appellant was tried for the violation of section 3448 of the Code of Alabama 1923. The complaint in the circuit court consisted of two counts and reads as follows:

"Count One. Comes the City of Birmingham, Alabama, a municipal corporation and complains that John M. O'Rourke prior to, and within twelve months prior to the beginning of this prosecution, and within the City of Birmingham, Alabama did without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business, namely a motion picture theatre, of the Ritz Theatre, a corporation, which said motion picture was then and there being lawfully operated by said Ritz Theatre, and said conduct of said John M. O'Rourke was done for the purpose of or with the intent of influencing or inducing other persons not to trade with, or to have business dealings with, or to be employed by said Ritz Theatre. The City of Birmingham further complains that the said John M. O'Rourke at the time of going near to or loitering about said motion picture theater walking backwards and forwards along the sidewalk immediately in front of said motion picture theater with a large sign or placard hoisted above his head which read as follows: 'The Ritz Theatre does not employ union men affiliated with the America Federation of Labor,' and said sign was visible to persons walking along the street near said motion picture theater.

"Count Two. Comes the City of Birmingham, a municipal corporation, and complains that John M. O'Rourke, prior to, and within twelve months prior to the beginning of this prosecution, and with the City of Birmingham, Alabama, did picket the place of business, namely a motion picture theater, of the Ritz Theatre, a corporation, for the purpose of hindering, delaying, or interfering with or injuring said motion picture theatre business and the said Ritz Theatre, a corporation, in the promotion and operation of said motion picture theatre business. The said motion picture theatre business was a lawful business or enterprise."

To the foregoing complaint the defendant interposed demurrers based upon numerous grounds. However, in brief for appellant it appears that the material insistence of error relied upon is, as stated therein: "First: The constitutionality of chapter 91 (including section 3448) of the Code of Alabama 1923; and second: The constitutionality of the application of Statute (section 3448, chapter 91 of Code of Alabama 1923) to the given facts." In other words, the demurrers insisted upon present the question of whether or not the statute involved is a constitutional exercise of power by the Legislature of Alabama and which in its application does deprive the accused of his constitutional rights, privileges, powers, and immunities.

The pertinent provisions of the statutory law involved in the present cause are section 3448 and section 3455 of the Code of Alabama 1923, which read as follows:

"3448. Loitering or Picketing Forbidden.--Any person or persons, who, without a just cause or legal excuse therefor, go near to or loiter about the premises or place of business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the purpose, or with intent of influencing, or inducing other persons not to trade with, buy from, sell to, have business dealings with, or be employed by such persons, firm, corporation, or association, or who picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, or interfering with or injuring any lawful business or enterprise of another, shall be guilty of a misdemeanor; but nothing herein shall prevent any person from soliciting trade or business for a competitive business."

"3455. Penalty for Violating Provisions of Chapter.--Any person, firm, corporation, or association of persons violating any of the preceding sections or provisions of this chapter, must, on conviction, be punished by a fine of not less than one hundred dollars, nor more than one thousand dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months for the first conviction, at the discretion of the court or judge trying the case; and on the second and every subsequent conviction, in addition to the fine which may be imposed, the convicted party must be sentenced to hard labor for not less than three months nor more than six months, to be fixed by the judge or court trying the case."

The above sections of the Code of Alabama 1923, are a part of chapter 91 of said Code (sections 3447-3455), and were enacted into law by an act of the legislative body of Alabama in 1921 (Laws 1921, p. 31), which said act was entitled: "An Act To amend and revise Chapter 176 of the Code [1907] which Chapter is entitled 'Boycotting and Blacklisting.' " Subsequently the act was incorporated into and made a part of the Code of Alabama of 1923, and same appears therein as chapter 91. The validity of the whole of chapter 91 is now questioned.

The demurrers to the complaint were overruled, whereupon the cause was submitted to the court for decision upon the following agreed statement of facts, to wit:

"It is agreed by and between the City of Birmingham and the defendant, John O'Rourke, that the following facts are true and that the court shall render its judgment as to the guilt or innocence of the defendant accordingly, as should properly be done under the agreed facts set forth below:

"The Ritz Theatre is a corporation engaged in the business of operating a motion picture theatre at which the public was generally invited to attend for an admission price, and was so engaged in said business in a building located on Second

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