O'Rourke v. City of Birmingham, 6 Div. 877

CourtAlabama Court of Appeals
Citation27 Ala.App. 133,168 So. 206
Decision Date18 February 1936
PartiesO'ROURKE v. CITY OF BIRMINGHAM.
Docket Number6 Div. 877

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.

[27 Ala.App. 134] 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 [168 So. 207] 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
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8 practice notes
  • Weyerhaeuser Timber Co. v. Everett Dist. Council of Lumber & Sawmill Workers, 28348.
    • United States
    • United States State Supreme Court of Washington
    • December 4, 1941
    ...the employer and its employees and thereby to induce such customers not to patronize the employer. O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 [119 P.2d 652] So. 206, certiorari denied, 232 Ala. 355, 168 So. 209. The statute as thus authoritatively construed and applied leaves room......
  • Thornhill v. State of Alabama, No. 514
    • United States
    • United States Supreme Court
    • April 22, 1940
    ...question and sustained the section on the authority of two previous decisions in the Alabama courts. 4 O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206, certiorari denied, 232 Ala. 355, 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. A petition for certior......
  • State v. Hudson County News Co., Nos. A--126
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...any special reliance upon those decisions. See State v. Viering, 187 La. 332, 174 So. 641, 642 (1937); O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206 (1936); Donaghy v. State, 6 Boyce 467, 29 Del. 467, 100 A. 696, 709 (1917); Bailey v. State, 161 Ala. 75, 49 So. 886 (1909); cf......
  • Beverly Hills Foodland v. United Food Workers, No. 90-2095C(5).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 14, 1993
    ...such customers not to patronize the employer." Thornhill v. Alabama, 310 U.S. at 99, 60 S.Ct. at 742 citing, O'Rourke v. Birmingham, 27 Ala.App. 133, 168 So. 206, cert den., 232 Ala. 355, 168 So. In Counts III, V, VIII, and X plaintiff claims that defendant's business representative and age......
  • Request a trial to view additional results
8 cases
  • Weyerhaeuser Timber Co. v. Everett Dist. Council of Lumber & Sawmill Workers, 28348.
    • United States
    • United States State Supreme Court of Washington
    • December 4, 1941
    ...the employer and its employees and thereby to induce such customers not to patronize the employer. O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 [119 P.2d 652] So. 206, certiorari denied, 232 Ala. 355, 168 So. 209. The statute as thus authoritatively construed and applied leaves room......
  • Thornhill v. State of Alabama, No. 514
    • United States
    • United States Supreme Court
    • April 22, 1940
    ...question and sustained the section on the authority of two previous decisions in the Alabama courts. 4 O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206, certiorari denied, 232 Ala. 355, 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. A petition for certior......
  • State v. Hudson County News Co., Nos. A--126
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1961
    ...any special reliance upon those decisions. See State v. Viering, 187 La. 332, 174 So. 641, 642 (1937); O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206 (1936); Donaghy v. State, 6 Boyce 467, 29 Del. 467, 100 A. 696, 709 (1917); Bailey v. State, 161 Ala. 75, 49 So. 886 (1909); cf......
  • Beverly Hills Foodland v. United Food Workers, No. 90-2095C(5).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • December 14, 1993
    ...such customers not to patronize the employer." Thornhill v. Alabama, 310 U.S. at 99, 60 S.Ct. at 742 citing, O'Rourke v. Birmingham, 27 Ala.App. 133, 168 So. 206, cert den., 232 Ala. 355, 168 So. In Counts III, V, VIII, and X plaintiff claims that defendant's business representative and age......
  • Request a trial to view additional results

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