Shuttlesworth v. City of Birmingham
Decision Date | 09 November 1967 |
Docket Number | 6 Div. 291 |
Citation | 206 So.2d 348,281 Ala. 542 |
Parties | Fred L. SHUTTLESWORTH v. CITY OF BIRMINGHAM. |
Court | Alabama Supreme Court |
Wm. C. Walker, Birmingham, for petitioner.
Arthur Shores and Orzell Billingsley, Jr., Birmingham, Norman C. Amaker and Jack Greenberg, New York City, opposed.
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.
'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 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:
We agree with and adopt the construction which Judge Johnson has placed on § 1159 and we agree with his observations to the 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. 762, 85 L.Ed. 1049.
The New Hampshire Supreme Court, as is pointed out in Judge Johnson's dissenting opinion, was called upon to determine the constitutionality of a state statute prohibiting, among other things, a parade or procession on the streets without a permit from local authorities. The New Hampshire statute did not set out a standard for granting or refusing the permit. The language of the New Hampshire court answering the assertion that the statute under consideration vested unwarranted control in the licensing authorities is quoted in Judge Johnson's opinion and will not be repeated here.
In the New Hampshire case, the marchers were divided into four or five groups, each composed of about fifteen to twenty persons. Each group proceeded to a different part of the business district of the City of Manchester and then lined up in a single-file formation and marched along sidewalks of the city in such a formation. The marchers carried banners and distributed leaflets announcing a meeting to be held at a later time where a talk on government would be given to the public free of charge. The marchers had no permit. Despite the fact that the marchers were carrying banners and distributing leaflets as well as marching, their conviction of parading without a permit was affirmed by the Supreme Court of New Hampshire.--State v. Cox, supra.
In affirming the judgment of the Supreme Court of New Hampshire, the Supreme Court of the United States in Cox v. State of New Hampshire, supra, said in part as follows:
'The sole charge against appellants was that they were 'taking part in a parade or procession' on public streets without a permit as the statute required. They were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations...
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Shuttlesworth v. City of Birmingham, Ala, 42
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