Taylor v. City of Birmingham, 6 Div. 843

• Decision Date: 10 January 1950
• Docket Number: 6 Div. 843
• Citation: 45 So.2d 53,35 Ala.App. 133
• Parties: TAYLOR v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Appeals

Page 53

45 So.2d 53

35 Ala.App. 133

TAYLOR v. CITY OF BIRMINGHAM.

6 Div. 843.

Court of Appeals of Alabama.

Jan. 10, 1950.

Rehearing Denied Feb. 7, 1950.

Arthur D. Shores, of Birmingham John J. Abt, of New York City, Earl B. Dickerson, of Chicago, Ill., Harry Silver, of New York City, and Morel Montgomery, of Birmingham, for appellant.

Thos. E. Huey, Jr., of Birmingham, for appellee.

Defendant's plea 2 is as follows:

2. Said complaint and each count thereof are unconstitutional, unlawful and void.

Said complaint and each count thereof constitute overt acts by the City of Birmingham in a willful and deliberate plan, purpose and design to deny to the defendant rights guaranteed to him by the Constitutions of the State of Alabama and of the United States and particularly the rights to free speech, free assembly, due process of law and the equal protection of the laws secured to the defendant by the Fourteenth Amendment to the Constitution of the United States.

Said complaint and each count thereof are unlawful, unconstitutional and void for the reason that they deny to the defendant rights guaranteed to him by the Constitution of the State of Alabama and of the United States and more particularly the rights to free speech, free assembly, due process of law and the equal protection of the laws secured to the defendant by the Fourteenth Amendment to the Constitution of the United States.

Said complaint and each count thereof are unlawful, unconstitutional and void for the reason that they constitute an attempt by the City of Birmingham to enforce against the defendant and compel his obedience to City Ordinance Number 859 of the City code of Birmingham, which ordinance as applied to this defendant deny to him rights guaranteed to him by the Constitution of the State of Alabama and of the United States and more particularly the rights to free speech, free assembly due process of law and equal protection of the laws guaranteed to him by the Fourteenth Amendment to the Constitution of the United States.

Defendant further says that the City of Birmingham, well knowing that defendant had not violated any of the ordinances referred to in this complaint and upon which it is based, nevertheless caused the arrest of the defendant, his confinement to jail and this prosecution against him for the sole purpose of denying to the defendant and preventing him from exercising his rights to free speech, free assembly, due process of law and equal protection of the laws, guaranteed to him by the Fourteenth Amendment to the Constitution of the United States.

Defendant further says as follows:

Defendant is a United States Senator, duly elected and sworn to occupy and faithfully perform his duties as such. That he was such at the time of his unlawful arrest. That he is a freeborn, white citizen of the United States, over the age of twenty-one years. That he had tendered to him prior to his arrest an invitation to speak at a meeting of a group of citizens of the United States, in the City of Birmingham, on May 1, 1948. He accepted said invitation to speak as he had a lawful and constitutional right to do to the group of citizens, known as 'The Southern Negro Youth Congress.'

Prior to his arrival in the City of Birmingham, Alabama, a place of meeting for the Southern Negro Youth Congress was necessary, where delegates or members to such Congress could assemble freely as they had a lawful right to do. Such place of meeting was desired for the free assembly of said citizens in order that this defendant could appear before them at such lawful and legal gathering to talk or speak to them concerning legal and lawful subjects or matters.

On or about April 25, 1948, the City of Birmingham, acting through its Commissioner of Public Safety, police officers and other officials of said city, entered into an unlawful and unconstitutional plan and conspiracy to prevent the Southern Negro Youth Congress from holding a lawful assembly in the City of Birmingham and to prevent the defendant from appearing before and addressing said assembly.

Pursuant to said unlawful plan and conspiracy, the City of Birmingham, acting through its Commissioner of Public Safety, police officers and other officials as aforesaid, attempted by intimidation, coercion, threats and unlawful arrests and detentions to prevent the Southern Negro Youth Congress from securing a meeting house or a place in which to hold its lawful assembly.

A meeting house or place was obtained prior to May 1, 1948, known as the '16th Street Baptist Church' in Birmingham, Alabama for such lawful assembly as aforesaid. Delegates and members were informed of the place of such meeting and the time for the beginning of such business and the time for the appearance of this defendant before them as a speaker to them. Consent to assemble here was granted by the Reverend Luke Beard, Pastor of said Church.

Prior to the meeting date of May 1, 1948, Reverend Luke Beard, Pastor of said Church, who had previously granted permission for the meeting in said Church, was illegally and unlawfully detained by police officers or agents of the City of Birmingham, Alabama, and taken into custody by them and caused to escort said city police or agents to the City Hall of the City of Birmingham, Alabama. Then and there said Reverend Luke Beard was under unlawful arrest and detention and was then and there ordered and commanded by such police or agents of the City of Birmingham to immediately withdraw his previously granted permission for the use of said '16th Street Baptist Church' as a place for said meeting, all while he was being so illegally detained and denied his rights and lawful liberty. By reason of the nature of the commands and threats while being unlawfully detained as aforesaid, Reverend Beard did notify said 'Congress' or its leaders that the permission for use of his church was withdrawn by him as a meeting place for them and for this defendant.

Permission was then requested and granted for the use of 'St. Johns Methodist Church' by the Reverend H. R. Hughes to said 'Congress' and this defendant in the City of Birmingham, Alabama, prior to the date and hour and moment of said meeting of said Congress and attendance by this defendant. Then said Reverend H. R. Hughes was thereupon, and immediately arrested unlawfully, detained of his freedom and liberty by the police and agents of the City of Birmingham. He, after being commanded so to do, did revoke his permission for the use of this church by said Congress and this defendant.

Permission was likewise granted to the Congress for the use of their Church, Chapel or Auditorium by the 'Green Liberty Baptist Church' through its Pastor, Reverend H. E. Gilven. He was likewise unlawfully arrested and detained as were the others as aforesaid. Request was made by the Police Department upon Charles V. Henley, Grand Master, that he deny use of the Masonic Temple to the Southern Negro Youth Congress for its meeting. The deposit made on the Elks Rest, which auditorium had been procured for the purpose of entertaining the delegates, was returned on orders from the police department and contract for same cancelled.

'Alliance Gospel Tabernacle' in the City of Birmingham, Alabama was obtained by said agents of and for the Congress and said members and citizens did gather there on May 1, 1948 for legal and lawful purposes as aforesaid.

Pursuant to the unlawful and unconstitutional plan and conspiracy aforesaid and for the purpose of preventing the lawful assembly of said members and citizens, the City of Birmingham acting through its Commissioner of Public Safety, police officers and other officials of said city, on the afternoon of May 1, 1948, did cause a large number of police officers unlawfully and without cause to enter upon the premises of the Alliance Gospel Tabernacle while said lawful assembly was in progress and to arrest four members of said assembly, including the Pastor of said Alliance Gospel Tabernacle, take them to the city jail and lodge against them a false charge that they had violated the provisions of City Ordinance Number 859 of the Birmingham City Code of 1944, a charge of which said persons were subsequently acquitted in the Recorder's Court.

Notwithstanding the unlawful and unconstitutional attempts, aforesaid, the lawful assembly of the Southern Negro Youth Congress reconvened in the Alliance Gospel Tabernacle on the evening of May 1, for the purpose of hearing an address by the defendant.

On the evening of May 1 defendant did lawfully present himself to the door of this lawful meeting place. Pursuant to the unlawful and unconstitutional plan and conspiracy, aforesaid, to prevent the defendant from addressing said lawful assembly, the City of Birmingham, acting through its Commissioner of Public Safety, police officers and other officials of said city, did then and there deny to the defendant the right to free speech and free assembly and did deprive him of due process of law and equal protection of the laws, all secured to him by the Fourteenth Amendment to the Constitution of the United States, in the following manner:

Defendant says, that upon his approach to a door of said 'Alliance Gospel Tabernacle' this door then and there had a sign or placard pasted, nailed or secured above or near or over it with the following words and figures viz: 'Colored Entrance'. Defendant further says words were spoken by a police officer of the City of Birmingham, Alabama, who was at said door with his arm extended across the entrance of same, said words viz: 'You will use the white door'. Defendant states that he then and there replied to said police officer viz: 'I prefer to use this entrance' and at the immediate time of so replying with those words defendant did then and there begin to move his body partly or otherwise as to enter or cross the thresh-hold of said door, all in a lawful, orderly manner in strict compliance to his...