Sumbry v. Land
| Decision Date | 15 November 1972 |
| Docket Number | No. 47316,No. 3,47316,3 |
| Citation | 195 S.E.2d 228,127 Ga.App. 786 |
| Parties | A. S. SUMBRY et al. v. John H. LAND |
| Court | Georgia Court of Appeals |
Thomas H. Harper, Jr., Margie Pitts Hames Atlanta, Melvin L. Wulf, Sanford Jay Rosen, William J. Birtles, New York City, for appellants.
E. H. Polleys, Jr., Columbus, for appellee.
Syllabus Opinion by the Court
'It was the best of times, it was the worst of times . . .' Those words which Charles Dickens used to open his novel, A Tale of Two Cities, apply appropriately to Columbus, Georgia, in the summer of 1971. The optimistic phrase refers to the hopeful outlook created for that community by consolidation of the governments of the City of Columbus and County of Muscogee so that a new body politic, known as 'Columbus, Georgia,' came into existence of January 1, 1971 (Ga.L.1969, p. 3571 et seq.). See Hart v. Columbus, 125 Ga.App. 625, 188 S.E.2d 422. The pessimistic phrase applies to the unhappy occurrences which ended in the instant appeal plus other litigation here and in the Federal Courts. See Diamond v. State, 126 Ga.App. 580, 191 S.E.2d 492 and Community Action Group v. City of Columbus (Civil Action No. 1528, M.D.Ga.), presently under appeal to the U.S. Court of Appeals for the Fifth Circuit as Case No. 72-1650.
Hon, J. Robert Elliott of the United States District Court for the middle District, in his order dated January 31, 1972, exercised judicial abstention and refrained from passing upon those 'matters which are the subject of an appeal which is pending before the Georgia Court of Appeals.' Although we have had the benefit of reading his order and through courtesy of the attorneys have been provided with copies of the briefs filed with the Court of Appeals for the Fifth Circuit, we have limited our consideration to the pleadings and transcript of the Muscogee Superior Court proceedings as we are not authorized to consider facts aliunde the record. Lamb v. Nabers, 224 Ga. 396(1), 162 S.E.2d 336; Airport Associates v. Audioptic Instructional Devices, Inc., 125 Ga.App. 325(2), 187 S.E.2d 567.
Counsel for both appellants and appellee have been most helpful to this court in having supplied brilliant briefs wherein they have explored in depth the legal questions. We have supplemented their research on our present-day problem of legalities involved in handling mass arrests 1 by reading the reports complied by the National Commission on the Causes and Prevention of Violence, To Establish Justice, To Insure Domestic Tranquility, and applicable law review articles. Among these was that written by Sanford Jay Rosen, one of counsel of record, Assistant Director of the American Civil Liberties Union, published in 37 Geo.Wash.L.Rev. 435 (March 1969) wherein he concluded his perceptive article by stating '. . . I have discovered no reasonably sensitive methods, other than hindsight, for determining either the morality or any other virtue of the goals and motives of the civilly disobedient.'
Mr. Rosen's reference to 'hindsight' applies here in that appellate courts have the benefit of such 'Monday morning quarterbacking' when reviewing decisions made by trial judges. This is of direct relevance to the instant appeal where we are required to pass upon the conduct of a trial judge in his handling of contempt charges against 81 defendants that he sentenced to jail terms for alleged violation of a restraining order which he had issued forbidding a parade demonstration which appellants describe as follows: 'Following the dismissal of several black members of the Columbus, Georgia Police Department for alleged failure to comply with regulations of the Police Department, 2 black people in Columbus have engaged in various First Amendment protected protest activities against the discharge and suspension of these and other black policemen and against other aspects of racial and economic discrimination in Columbus.' These background factors are not contained in our record which consists of the petition, the restraining order, the contempt rule, various defense motions which will be dealt with hereafter as adverse rulings recited as enumerations of error and the transcript of the contempt hearing which ended in jailing these appellants, together with a subsequent dismissal of the complaint upon motion of the petitioner therein and an 'Order of Court Amending Sentences' which reduced the sentences to the time served by each. Prior to such dismissal and reduction of sentence appellants had filed a notice of appeal and request for supersedeas. When such request was denied appellants petitioned our Court of Appeals which ordered 'that a supersedeas be granted to stay the operation of the contempt judgment until the said judgment can be reviewed by this court.' (Vol. 16, Minutes, p. 193, dated August 6, 1971).
The instant case had its inception on July 31, 1971, with presentation to Superior Court Judge John H. Land of a verified petition by J. R. Allen as plaintiff, he designating himself as being the complainant in his representative capacity as Mayor of Columbus, Georgia, as well as a property owner, as a taxpayer, and also individually. Various persons, a radio station, and the Southern Christian Leadership Conference were designated as defendants. From the complaint we summarize the following:
'Defendants, together with other individuals, have on numerous occasions caused civil disorders to exist in the above mentioned city, since the 21st day of June, 1971, and have continued and are continuing to cause civil disorders resulting in property damage in the excess of $1,000,000.00 with said city, and danger to the life, limb and security of the plaintiffs and other residents, taxpayers and citizens of Columbus, Georgia.' (Par. 3).
The Columbus City Council unanimously adopted on July 24, 1971, an ordinance, certified copy being attached, which empowered petitioner J. R. Allen as mayor 'to proclaim the existence of civil emergency . . . and authorizing the mayor to issue such orders as he deemed necessary for the protection of life and property on said date.' (Par. 4). In passing the ordinance on July 24, 1971, City Council provided as a part thereof 'That an emergency is hereby declared to exist for the preservation of the public peace, health and safety, by reason whereof this ordinance shall take effect immediately.' That same day the mayor issued a proclamation 'that a state of emergency exists within Columbus, Georgia and prohibited assembly of groups of twelve or more persons upon the streets and sidewalks of Columbus, Georgia.' (Par. 4).
The assertion was made 'that defendants and others are planning to form a demonstration consisting of more than twelve individuals, large and riotous crowds within territorial limits of the said consolidated government on or about 2:00 o'clock p.m., EDT, on the 31st day of July, 1971, the dissemination of this plan being broadcast in interstate commerce by Radio Station WOKS.' (Par. 5).
Paragraph 6 recites
The complaint further says that in derogation of the proclamation defendants 'plan to march through said Columbus, Georgia, and that as the natural consequence thereof, a civil disorder will occur, there will be personal injuries and property damage, which plaintiff seeks to prevent.' (Par. 7).
Paragraph 8 avers
Paragraph 9 read 'By this complaint, plaintiff seeks to avoid and prevent property damage, violence, personal injury and possible deaths, which is likely to result from the planned and intended unlawful assembly and riot to be promoted and committed by the defendants and other persons acting with them.'
The prayers are for a restraining order prohibiting the defendants from carrying out their proposed march and plans; for a temporary and permanent injunction; for assignment of a hearing date; and for such other relief as might be proper.
Upon this petition being presented, Judge Land issued a restraining order at 12 noon on July 31, 1971. This forbade 'the defendants named, their agents and servants, and any persons acting under their command and direction or acting in concert with either from participating in or carrying out the described unlawful assembly and march heretofore scheduled for 2 o'clock p.m., July 31, 1971, or at any other time until further order of this court.' A paragraph therein directed law enforcement officers to arrest any violator of the order 'and bring him before me at the earliest convenient time to be dealt with for contempt.' Additionally the named defendants were to show cause on August 3, 1971, why the prayers for temporary injunction should not be granted. Direction was given that 'a copy of this complaint and order be served upon the named defendants or their agents as soon as possible.' The return of service on the parties named as defendants shows service to have been made on eleven of them on that date with the twelfth defendant being served the next day. Only two of those named as defendants participated in the march that took place shortly after 2 p.m. on July 31, 1971, as scheduled.
The transcript of the hearing shows the restraining order to have been read at a meeting of the marchers held immediately prior to commencement of the march and that the order was also read several times...
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