Shuttlesworth v. City of Birmingham

68 was operated the Defendant’s corroborated testimony Tolen testified he

Leon by his Century, Florida. wife. Century Gulf Service August of the afternoon Around 4:30 opinion are of the trial We his station came to the defendant properly court held there was sufficient boy. De- and another with Vernon Seals accomplices’ corroborative evidence of gasoline in a bought gallon fendant justify testimony to the submission twenty-five cents glass jug, paying witness jury case to the its consideration. for it. State, Ala.App. 129, Dykes 1 So.2d v. 30 employee State, that as an 754; Bill testified Fagan Ala.App. Cox So. Florida, County, Sheriff’s de- Escambia properly 2d The court overruled the 634. partment investigating the he assisted motion to exclude the state’s evidence. o’clock case. Around one facts further no We hold that there was error he morning August 28th found grant court’s refusal the motion resi- glass jug at the rear defendant’s for a trial ground new on the of the insuf- gaso- jug strong odor of dénce. The had of the evidence to sustain the ver- ficiency He turned the over to Mr. line. jug James dict. deputy Escambia Coun- Taylor, a sheriff of Alabama, car ty, with him the who was The judgment of the court is ordered trial jug. he when found affirmed. Affirmed.

Deputy Taylor testified Mr. Cox Sheriff gave jug him turned it and that he over Byrne,

to Mr. Sheriff of Escambia County, Byrne Alabama. testified Sheriff jug No. which Mr.

state’s exhibit 1 was the Taylor he turned over to him and that he it. labeled at the time received So.2d sufficiently jug identified was its introduction into evidence. Fred L. SHUTTLESWORTH State, Ala.App. 88 So.2d Stewart v. 580. CITY BIRMINGHAM. OF testified he at his home Defendant was 6 Div. 979. August night Florida on the Appeals Mrs. go to near the home of and did not Court Alabama. He denied Thornton Alabama. Julia 2, 1965. Nov. conspiracy with Mer- had into a he entered her and stated chant or to burn house Seals Rehearing Denied Dee. telling that Merchant and Seals were not bought he never the truth. He testified had Tolen, was gasoline from but there Mr. jug porch he back used his

put he gasoline in his and that lawn mower purchases gasoline he in mower used his Fillingham.

from a Mr. He also stated his Thornton married brother Mrs. Julia pending in and that there law was a suit concerning court she where property lived.

70 Billingsley,

Arthur and Orzell D. Shores Birmingham, Greenberg, Norman Jr., Jack Heffron, New C. Amaker and Frank H. City, appellant. York Walker, ap- Wm. C. Birmingham,

pellee. They easterly on the

Birmingham. went crossing Fif- Avenue sidewalk Sixth At Seven- and Sixteenth Streets. teenth south, then teenth Street turned again. east Fifth Avenue defendant one of the The was first CATES, Judge. city emerge the church. Various policemen thereafter, him sometimes saw February appeal This was submitted along- walking along with sometimes originally assigned and was JOHN- others, bounding side from front once SON, J. to rear. jury was convicted Shuttlesworth two, group along The went sometimes City in a court trial de novo. circuit three, four, and at charged ordinance sometimes sometimes him with a breach its permit. one one rank of six against parading time witness saw without up bunching coin- abreast. This observed Code of 1944.1 General promenaders cided the blocked being verdict, judge Pursuant the trial ad- parking police cars athwart the officers guilty, judicated him fined him $75.00 crossing Eighteenth at Fifth Avenue and costs, ninety him to and also sentenced Street. days City. hard labor the for any There was no evidence that of the questions There are for decision: three group they got or that into the jaywalked, its (1) 1159, supra, denies, on whether § roadway except designated vehicular law; face, process whether or (2) due cross walks. Nor did obstruct cars or applied Yick not the ordinance as violates pedestrians lights, disobey any nor traffic Hopkins, Wo directing or officers The traffic. 220; sufficiency (3) the tendency disorderly showing toward con- evidence. lay group duct in evidence some of sang clapped hands. I. permit The defense no for a adduced

FACTS procession parade or nor was there evidence anyone permit. applying for Converse- o’clock, P.M., Friday, About two Good April 12,1963, persons ly, City’s proof permit fifty-two issued no of rec- some showed North, Avenue, from a church on in Sixth question. day ord for the in organize hold, public parade, procession 1. “It shall be unlawful or suck or other organizing holding, or to in or or assist shall demonstration. commission participate any parade part in, grant permit parade, to take or a written for such procession public procession public demonstration, demonstra or other or other public ways public prescribing tion on the streets or other the streets or other city, permit ways therefor, unless a therefor has used unless be judgment public welfare, peace, been secured from the commission. in its permit, appli- health, decency, good order, safety, “To secure such written morals commission, require cation shall be made to the or convenience it be refused. setting probable per- pur- forth number It shall be unlawful to use for such sons, ways poses public vehicles and animals which will be other streets engaged parade, procession permit. in such or oth- than those set out said public purpose demonstration, preceding paragraphs, er for “The two how- had, ever-, apply proces- which it is to be held or and the shall not to funeral ways public along over, streets other sions.” or in which it is desired to have or hold ii. prohibition ordinance limit itself its instances where these or similar condi- BACKGROUND particular tions exist. The case here presented unqualified one of in- procession been as A has described wholly terdiction of a inoffensive dis- assembly C.J.S., p. an motion. play placards public aon street unless states: defendant should submit “ requirement per- that he first obtain a * * * persons group, especially of might mit. reached Whatever result containing persons, or of vehicles mov- ordinance, by wording, if the its af- ceremonious, ing orderly, onward in an only carefully fected defined instances manner; orderly or solemn file or actually inimical conduct to the formation, marchers; especially of public interest, proof ifor had dis- parade.” conduct, closed must such we at least group’s The essence seems to lie under conclude that decisions which having pro tempore ad hoc and exclusive application we are of this bound possession part public way. all of a in- ordinance to this defendant stance his constitutional violated Early probably his, grip when — previous he to do what did without a referring public fondness ” * * * anyone. Holmes, J., in Commonwealth v. “Mob” — Davis, 26 L.R. Mass. 39 N.E. And in the same volume on a consolidated spawned Judge Conway A. what appeal, Pascone, 308 Commonwealth v. Appeals New York Court of characterized Mass. find the same N.E.2d plenary power as “the [of officers] again applied precise rule with a distinction parks.” People over use of streets of ratio affirming decidendi in the second 273, 455, Kunz, 300 at 462. N.Y. 90 N.E.2d case. York, People Cf. Kunz v. of State New Moreover, express in terms the Massa- 290, 312, 340 U.S. 71 95 L.Ed. 280. S.Ct. court, 1947, chusetts in grips comes to with However, ap- though the Davis case was supra, the Davis case, Commonwealth v. proved Supreme in the Court United States Gilfedder, 335, 321 Mass. (hn. 73 N.E.2d 241 43, 731, (167 71), U.S. 17 S.Ct. 3). opinion puzzlement confesses at its assurance later First- has been eroded Supreme speak how the Court could as it beginning Fourteenth Amendment cases judgment Hague yet did to its in not Hague v. Committee for Industrial Davis, supra. have overruled The Gilfedder Organization, 83 opinion by distinguished (and Justice L.Ed. 1423. Justice) Qua worthy Chief later of close persuasive study prece- as a and considered Consequently in find the court dent parks by public. as to use in saying Anderson, Commonwealth v. 308 Mass. 2), 32 684 (hn. N.E.2d concern- Hague history was decided in 1939. The ing applied an ordinance of Boston as Mayor Hague’s resistance to union Witness: Jehovah’s virtually all cannot be activity sorts ignored. gainsaid “ Nor can that factor be * * =!= suggestion there is no in the assessing in the 5-2 division in the then agreed facts that the defendant was membership opening of the court. The obstructing danger, or traffic, causing paragraph, U.S., S.Ct., 59 at annoying way, travellers in or that is: placards writing the form of the indecent, libellous, judgment upon like- “The of the in this case them was court that the decree and as ly incite or otherwise ob- is modified violence modified jectionable. do terms of the affirmed. Nor MR. JUSTICE FRANKFURTER and MR. memorially been held in trust for the JUSTICE part DOUGLAS took no in the con- use public and, out mind, time sideration or decision of the case. MR. purposes been used for of as- opinion sembly, ROBERTS has an communicating thoughts JUSTICE be- in which MR. con- BLACK tween citizens, discussing public JUSTICE curs, and questions. MR. STONE an Such'use the streets and JUSTICE opinion in which MR. places REED has, times, from ancient JUSTICE part concurs. The CHIEF con- been a privileges, immuni- JUSTICE opinion. ties, curs in an MR. rights, and liberties of citizens. JUSTICE McREYNOLDS and MR. The privilege of a citizen of United JUSTICE BUTLER for dissent reasons States to parks stated in use the streets and for opinions by respectively.” them communication of on views national questions regulated in be the in- Carefully analyzed it is obvious that all; absolute, terest of it is not but rela- Mr. (in express Butler dissent) was Justice tive, and must be exercised subordina- ly willing to stand Davis v. Common general tion to the comfort and con- wealth Massachusetts, venience, peace and in consonance with good order; not, in but it must guise of regulation, abridged IRoberts, J.,2 : (SIS) said of Davis denied. ap- question “The ordinance there right “We think the court below was purpose from parently had a different quoted holding ordinance challenged, here one Note 1 its It void face. does not solely at the exercise was not directed make comfort or convenience in the assembly, speech and use of parks streets or the standard of other well to but as was addressed official action. It enables the Director nature of civil in the activities, Safety to refuse a his regu- might be rights, doubtless opinion mere that such refusal will respects their prohibited lated or prevent ‘riots, disturbances disor- In parks. the instant enjoyment derly thus, assemblage.’ can It as the only with deals ordinance case the discloses, record made the instrument assembly for right of exercise of arbitrary suppression of free ex- communicating views purpose of pression national of views on affairs a and is not by speakers, entertained prohibition speaking for the of all will public promote the to general measure ‘prevent’ undoubedly such eventuali- the streets in the use of convenience sup- ties. But official uncontrolled parks.” or pression privilege of the cannot be City Jersey that out pointing After a duty made substitute for the to main- only permits required explicitly ordinance tain order in connection with ex- assemblies, made or he parades public ercise right.” of the quoted this oft statement: “ * up * * point pick decisions At this we title of streets Wherever Hague train of in the rest, im- follow parks (without banned suspects Boston ordinance 3. The Mr. Justice writer 2. The firing cannons, Mayor) permit chary Hague, “re-ex- a from the was Roberts setting up hawking goods, firearms, principles” or of constitutional amination public English shows, etc., addresses. as well follow the chose and hence prior precedent distinguishing practice im- its confines narrow into such of a tomb. murement

75 sweep of is the broad Corresponding emergence The saw the early ‘40’s case. “ ** Cox, find: from Thus licensing: Witnesses cases.4 Jehovah’s public upon any procession or parade no Griffin, U.S. 303 City In Lovell v. * * * special way unless a street or 949, the court 444, 666, L.Ed. S.Ct. 82 58 ** of like And therefor license prescribing held void an ordinance had “* * * unlawful tenor, reads: 1159 to distribute literature. procession any parade or organize streets public demonstration or other 1939, we find: Hague, Then after * * * per- ways unless public or other 308 U.S. Jersey, Schneider v. State of New * * mit (1939); 147, 155 60 146, S.Ct. 84 L.Ed. California, People Carlson v. State are in each1 mechanics Administrative 106, 746, 1104 60 L.Ed. 310 U.S. S.Ct. 84 made Hampshire Act New similar. Texas, (1940); 318 v. State Jamison empower than to exceptions other no 413, 669, (1943); 869 U.S. 63 S.Ct. grant city or board licensing committee 418, Largent Texas, v. U.S. State of 318 fraternal licenses” to blanket “revocable ; 667, v. (1943) 63 87 S.Ct. L.Ed. 873 Jones and. theatres organizations, other like 890, 103, City Opelika, 319 63 S.Ct. U.S. undertakers. (1943); 87 1290 v. Com L.Ed. Murdock 105, Pennsylvania, monwealth of U.S. 319 However, the Hampshire New enactment 870, (1943); 63 Saia v. S.Ct. 87 L.Ed. 1292 applied parades processions York, People of State of 334 U.S. New performances but also to com- exhibits 558, 1148, (1948); 92 L.Ed. 1574 prising theatrical or representa- dramatic People York, Kunz v. of State 340 of New tions any open as well as air meet- 290, 312, (1951); 71 S.Ct. 95 280 L.Ed. ing upon any ground abutting on a street 960, Gelling Texas, v. State of 343 U.S. public way. 1002, 72 96 (1952); S.Ct. L.Ed. Fow 1359 Moreover, court, Hampshire New Island, ler v. State of Rhode 345 U.S. Cox, State v. made no reference to (1953); S.Ct. 97 L.Ed. 828 prior judicial interpreta- Baxley, administrative Staub 355 U.S. tion Whereupon, statute. S.Ct. the court (1958). L.Ed.2d 302 proceeded to fill implication variety Against array, however, stands Cox requirements: (1) reasonableness; (2) Hampshire, State New uniformity of applications; treatment of which, unlike L.Ed. (3) freedom improper from in- multi-opinion decision, Hague came appropriate considerations and unfair from speaking through unanimous court discrimination. Hughes, C. opinion heavily This relied J. Supreme undoubtedly on the State It sys- was this gloss Court’s construction “a of Cox, in the same tematic just case. State 91 consistent and v. N.H. order of treat- 137, 16 A.2d 508. ment” which facilitated affirmance Cox v. Hampshire, State of New supra. Here, affirmance, City Bir- for of mingham claims Since, that Cox is decisive. Con- however, validity prima facie cededly, many there are between similarities of 1159 has not been appellate before § Birmingham of 1944 and 1159 Code necessary court5 find § we to examine the Hampshire ques- the New unfolding statute there of cases since Cox. In Primm City Birmingham, tion. 657, v. Ala.App. 42 Harper, Rutledge N.D., (Civil 63-196, U.S.D.C., 4. Justice and the See ham Action Bright Constellation, seq. 46, et August Alabama, 12, 1963), it- dissolved constitutionality taking up three-judge presided self without 5. A court over Rives, King Birming- J., City § v. 1159. 76 Black, J., dissenting in Adam 326, states. Cf. we found insufficient evi- 177 So.2d California, People of son v. State of dence. 1672, 1903, 46, with 67 S.Ct. passing, In that in McMeans v. we note opinions concurring of Harlan and (M.

Mayor’s Deposit, Alabama Court, Fort Texas, JJ., Goldberg, v. State of Pointer D., Alabama, September 1965), 247 F. 400, 85 13 L.Ed.2d 923. Supp. 606, Johnson, J., an Frank held M. Fort City identical ordinance of the First Amendment reads as follows: applied Deposit to be unconstitutional re- “Congress shall make no law to the facts. religion, specting establishment two rea- Nevertheless there are at least prohibiting the free exercise there- the Mc- keep using sons which us from of; speech, abridging the freedom of opinion to Shut- Means as authoritative as press; or the or of appeal. tlesworth’s peaceably assemble, people and to petition the for a redress Government First, disclose no recited the facts there grievances.” peace- only procession rather parade but protection of picketing within the ful Cardozo, Legal in The Paradoxes of Alabama, 310 U.S. Thornhill v. State 94-96, pages says: Science, at Hotel & L.Ed. 1093. “ ‘* * * That ill deserves the name Greenwood, Ala. Emp. Restaurant hedges us in of confinement which (hn. 21). 30 So.2d 696 bogs precipices. and So that from City Second, opinion that states mistaken, however it the end to its a remand appeared but did not seek restrain, but of law is not to abolish or Court. Recorder’s preserve enlarge For freedom. Judge Third, recognize [Frank cap- beings, in all the states of created of, and to the review is under laws, there is no law able of where M.J Johnson by, bound the decisions extent is liberty there is no freedom. For is to Indeed, opinion his Fifth Circuit. be free from restraint and violence Georgia, 342 Rachel v. State relies on others, which cannot be where City of Green- Peacock v. F.2d law; not, there is no as we are justify removal wood, 347 F.2d told, “liberty every man to do 28 U.S.C. under free, what he lists.” For who could be every might when other man’s humour to be Rachel understand We liberty domineer over him? But a submission argument and up for taken dispose freely and order as he lists United States Supreme Court of person, actions, possessions, his Term, probably in current 1965-66 at the property his whole within allowance denial Third Circuit’s contrast is, of those laws under which he Anderson, of Chester removal subject therein not to be to the arbi- F.2d 823. trary another, freely will of but follow his own.’ Modern in social research III. amplified thought science has Locke, changing but without its essen- FREEDOMS AMENDMENT FIRST [Citing tials. Treatises Civil Gov- Supreme Court the The last term of ernment, book sec. 57.] effectively Amendment the Fourteenth saw “ liberty conception,5 ‘If a is social hesitantly first incorporate —the —albeit Hobhouse, says liberty ‘there can be no Federal Constitu- to the eight amendments any upon without social restraint. For one the process laid part of the due tion as Rachel, Georgia 86 S.Ct. 39. nom. Sub might undergone steady a maxi- person, indeed, highly there he has a significant development. restraints liberty if all social The individ- mum of strength may only not physical ual insist that the law were removed. Where prevails strongest man has which limits him in his activities the shall alone impose upon likes like liberty do he in like unlimited what limits others clearly weaker; the but circumstances. He will be heard also with strong say greater that is the freedom there a domain of free of activity man, may by of that not the freedom be touched less liberty government by all, mean as or law at weaker. What whether against a to be conception special a is command be him social society, general against By all members of him and others. ex- shared press constitution, provision very little consideration suffices he that, restraints speech in the absence of show assured freedom of and free- accepted by all members religion. on or dom of conscience or enforced These society, liberty some must a latter immunities have thus the sanc- * * specific oppression pledge, a involve others. tions of but are liberty merely itself. In phases immunity contradicts larger Excess of a thing; compre- there is expression there is such short no finds in the liberty for one and restraint hensive declaration one shall no ” liberty deprived another.’ been without due process appears law. Such least pages he And at continues: 97-99 to be the more recent doctrine of the speaks Apart court that the final word. rights give to the “Bills of assurance phase liberty from enumerated preservation of his individual beyond it, gives this declaration They liberty. the liber- do not define immunity against play ‘the and action * * * Liberty ty they promise. be- purely personal arbitrary reign of law. came identified with power.’ personal What and arbi- government,’ under ‘Freedom of men trary in mandate and does restraint not standing rule Locke, says ‘is to have gain rationality and coherence because every of that by, common to one to live it takes form of The statute. legislative society and made speak finality legislature does not power individual erected in it.’ The powers. as to the measure of its own among out singled be not final is for courts.” word follows, and made the victim his put are Those who shafts of malice. Holmes, J., dissenting in Abrams v. promulgated govern by him ‘are to over States, United par- law, not to be varied established said: cases, rule for one but to have ticular expression “Persecution for at court poor, for the favorite rich perfectly logical. opinions seems to me plough.’ countryman at (cid:127)and the prem- you your have no doubt If your power and this, ises or want certain “Up no there is restraint naturally your you result with all heart scope long or force of law so as your sweep express law, wishes in law and long general e., i. it be so as opposition. opposi- away To all allow equal, a contrasted with an rule as by speech to indicate that tion seems Liberty means ‘‘extemporary decree.’ impotent, you when speech think however, concept this, than as a more says squared the cir- he has man It has to mean science. come of social cle, you'do care whole or that more, system, as in our own at least you heartedly result, for the (cid:127)concept The con- of constitutional law. prem- power your your development either doubt cept our constitutional 73 men

ises. But when hate realized of that reasonable nondiscriminatory regula- .upset many faiths,- has fighting by governmental time tion authority that they 'may preserves peace, to come believe even moré tranquillity order they than very deprivation believe the foundations without of the First of their guarantees own conduct that the ultimate speech, Amendment of free good press better desired is reached free and the exercise religion. of in trade ideas—that best test of considering reg- When specifically the power thought get truth is the public parks, to ulation of the use of accepted in competition itself of position. Court has taken same See market, quotation truth Hague that is from the be- case ground upon safely People which their wishes low and Kunz v. of of State any York, 290, can be carried That at rate is 293-294, out. New 340 U.S. 71 theory 312, 314-315, 280; of our Constitution. It is S.Ct. 95 L.Ed. Saia experiment, experi- People York, an as all life is of State of New U. 334 Every year every day 562, 558, 1148, ment. if 1150, we S. 68 L. S.Ct. 92 wager upon cases, to have our salvation some In Ed. 1574. these the ordinanc- prophecy upon imperfect invalid, they based knowl- es held were not because edge. experiment part regulated parks While that the use of the for meet- system ing of our think I that we should they and instruction but because left eternally against attempts vigilant complete be discretion to refuse the use expression opinions to check the of hands officials. ‘The be to fraught loathe and believe to be placed heard is in the uncontrolled dis- death, they imminently with unless so cretion of the Chief Police.’ 334 threaten page 560, immediate interference with U.S. at at 68 S.Ct. [1148] pressing purposes 1150, the lawful and page have 1574. “[W]e consistently law check is that an immediate licensing sys- condemned ” * * * required country. to save tems which vest an administrative 345 U.S. per From “The Reed, Poulos principles of 395, J., we v. State of quote: the First Amend- New L.Ed. Hampshire, 1105,. to page 315, 95 L.Ed. 280. 340 U.S. at a officials discretion permit itpon proper regulation page broad criteria unrelated to grant public places/ S.Ct. or withhold- ^[312] promise are not be a ment treated saying is no “There basis for that free- everyone opinions or beliefs compatible. dom and order are not express gather may around him at despera- That would decision any public place and' at time a Regulation suppression tion. are group It for discussion or instruction. same, purpose not the either re- nonsequitur say First is a sult, justice and courts of can tell the regulat- rights not be ” Amendment ** * difference. posi- preferred hold ed because hierarchy Lowry, constitu- In tion Herndon v. guarantees of the incidents of 81 L.Ed. 10667 and Freedman

tional Maryland, never so S.. freedom. This Court has State of definitely indicated Ct. 13 L.Ed.2d the court refers- held and indeed has approval contrary. preferred position It has indicated to the effect abridge power organizedgovernment. judgment free- 7. “The state to assembly, speech Legislature dom and’ is not unfettered. The exception penalizing liberty and the than the rule must rather even limitation individual safety appropriate a defined of utterances of relation ” justification in character must find its of the state. danger apprehension reasonable'

79 rights person. parte Burford, First Amendment of freedom of the Ex 3 Cranch Collins, expression. 448, 323 U.S. 2 (1806). Thomas L.Ed. 495 516, 315, This 65 S.Ct. 89 L.Ed. 430. Hence, we consider to ourselves bound priority Hague v. Committee also used 1159, supra, preference giving examine § supra. Organization, for Ed Industrial (1) rights the to constitutional of free ex- Carolina, 229, 83 wards v. South 372 U.S. pression (e. g., speech, publication) free 680, 697, 9 L.Ed.2d and Cox v. State S.Ct. assembly; and (2) of free and to the im- Louisiana, 536, 453, of 379 U.S. 85 S.Ct. plicit right walking. to use the sidewalks for 471, examples 13 L.Ed.2d are recent of formulation. recognition regulation It is the and right being this latter nonexclusive which In our constitutional law freedom of ju- difficulty legislating causes and rarely by expression can he fettered legislator’s dicial review of choice. Blackstone, prior restraint on its exercise. enquiries: This enters into two the extent Comm, iv., 151, seq., aptly et said: power regulate of the available to and “ * * * liberty press mode of its exercise. indeed essential to the nature of a free state; laying but this no consists IV. previous upon publications, restraint and not in censure for freedom from POLICE POWER ” * * published. criminal matter when 62, 654, relating solely Code T. Moreover, speech abuse is toler- of free provides: Birmingham, stifling ated more: is a worse mischief. Maryland, supra. city full, 654. The Freedman v. State of shall “§ com plete, unlimited, power and continuous ap we concede that Whether authority, time, from time to pellant participate did or did not in a adopt ordinances regulations n “procession” “parade,” undisputedly he inconsistent with the laws state walking was arrested while on a sidewalk. and the federal and state Constitutions Immediately participat had beforehand he carry discharge into effect or ed, aught orderly appears, in an powers and by duties conferred law assembly. presumably lawful city, provide and to for the safety, preserve health, promote By merely forbidding go citizens to prosperity, improve morals, or (or from) place assembly, ders, comfort, and convenience of the peaceable assembly easily could city, prevent inhabitants and to Again Blackstone, thwarted. we note punish injuries and offenses to the Comm, i, 134: public therein, prevent and to conflict “ * * * personal liberty This feeling and ill consists between races power locomotion, In city by chang- making provisions for the ing situation, moving person separate parts one’s use of blocks or of blocks place residences, places abode, whatsoever one’s own inclina- may direct, places tion imprisonment assembly by without the different **8 restraint, races,S. prevent unless due course of and to evasions and * * ^>f punish law. violations of the ordinances and Also, protection city, the constitutional compel from un- resolutions of the and to applies seizing exceeding reasonable seizures to a obedience thereto fine not Birmingham Monk, Cir., ordinance); Tyler, 5 185 Harmon v. U.S. 273 ordinance); (B’ham. zoning (1927) F.2d 859 L.Ed. Warley, (New ordinance); City Buchanan v. S.Ct. Rich- Orleans Ky., (1917) (Louisville, Deans, 62 L.Ed. 149 mond v. imprison by possible give one hundred dollars and an exact definition of power, exceeding police many attempts ment or hard labor six not the months, both, by one or and revocation been made. There is no consensus in granted any by municipality them, of license such favor of but these defini- upon conviction in the court tions recorder’s are considerable value indi- as ordinances; cating scope violation of of said the breadth and of this provided, however, power. that this section shall not be construed the to authorize expression ‘police power,’ “The al- by granted forfeiture of franchises capable use, though and sometimes city state laws or ordinances without used, sense, frequently in a restricted is appropriate legal proceedings; and to very broadly legisla- used to include all full, the ends set out this section every tion and almost function of civil complete, powers police and unlimited Thus, government. it has been stated possessed by Alabama shall the state of power up police that the effect sums though specifically be had and in as power government, the whole and section, detail set out in this so far powers only that all other are inci- possible legislature as it is for the ancillary dental and to the execution of Alabama under of Ala the Constitution power; full, police it is that final and of dele bama the United States power involved in the administration of gate powers, expressly being such it n law as the means to the attainment of declared nothing that herein contained practical justice. And it has been said shall be construed as a limitation power is another name police powers restriction on granted authority for that which resides in city general special to the under every sovereignty pass all laws for laws.” regulation the internal and government general municipal law, Code T. state, that it is vast residual' reads: § power state, of the and that it com- prises portion sovereignty of the Municipal corporations may,

“§ by time, of the which is not adopt from time state surrendered ordinances terms the Federal and resolutions Constitution not inconsistent government. state, carry to the federal the laws of the into discharge powers effect or police “Blackstone power defines as. title, pro- by duties conferred regulation ‘the due and domestic order health, vide safety, preserve for the individuals, kingdom, whereby the promote improve prosperity, state, like members of a well- morals, order, comfort, and conven- governed family, are bound to conform ience inhabitants of the munici- general their behavior to the rules of pality, and enforce obedience to such propriety, good neighborhood, good exceeding ordinances fine one not manners, industrious,, decent, and to be dollars, by imprisonment hundred respective and inoffensive in their sta- months, or hard labor exceeding not six Many cases, employing tions. the lan- one or both.” guage Shaw, Chief define it Justice power, Am.Jur.2d, Police in 16 Constitu- power as ‘the vested in legislature Law, (in part) tional is described ordain, make, the Constitution to thus: and establish all manner of wholesome “While it generally recognized laws, statutes, and reasonable and ordi- very practically without, difficult and nances, penalties im- either with Va., (Richmond (1930) Florida, 74 L.Ed. 1128 ordinance). See also Robinson v. State of L.Ed.2d 163. Constitution, repugnant Hague Organi- to the v. Committee for Industrial zation, judge good supra, disapproved. shall to he for the commonwealth, and of

welfare power10 has been held Police vital for subjects of the same.’” society together: to hold the contrast often Kartus, Knight, given anarchy, philosophic J., in v. 230 Ala. is and not the State 352, 533, 1336, anarchy. 162 A.L.R. said: nirvana-like So. 101 Law and order for protection strong the from weak the one, time, it, at “No we take would in contrast jungle. is to the law temerity de- to undertake to however, Emergencies, pow- do not create state, ‘police power’ fine the of a or ” they ers: rather furnish the occasion mark its limitations. the exercise of conferred. those Constitu- City Birmingham, In 248 Hawkins v. by tional law raise itself cannot its own 281, 692, Foster, J., Ala. 29 So.2d said bootstraps. Homebuilding & Loan Ass’n v. 62, 654, 696, p. at supra (at So.2d T. 29 § Blaisdell, 398, 231, 290 54 L. U.S. S.Ct. 78 subject p. 283): power “This is of course Ed. 413. City Bir- to be controlled.” also See College, mingham Birmingham v. Business doWe not doubt that 654 T. 62 § Inc., 551, 256 Ala. 56 So.2d 111. 37, and supra, city 455 of confer T. on the power to regulate public the use of Legislature con Concededly, if places streets and in the interest of accom city power, a town fers charter or modating conflicting claims of vehicles and regulations for the use its streets ordain pedestrians. Yet, resolving in so traffic cannot, power how sidewalks. This problems the State and Federal Constitu ever, beyond extend constitutional bounds. impose duty tions recognize liberty a to concept a within of an society. ordered con presented are with two We First, public flicting concepts. the use of Basically, that a munici we consider ways subject primarily going to to require can legislature a state pality or side public generally, on fro of the afoot to use the vehicu permit first obtained be walks, roadway mainly reserved with the parade pro for a or portion of a lar street for wheeled traffic.9 Moreover, over if the movement cession. pedestrian the same sidewalk flows onto com speech, free Secondly, to control seem obtain. ends for would assembly, ideas, and free munication of public locomotion, inhere in the use walking on group As to a places. street, spaced apart, dedicated of a sidewalk fro, going to blocking early others outset, At the we believe that the (either traffic cross interfering Davis, supra, nor case of Commonwealth v. demeaning vehicular) and pedestrian public power treating property subject as to peaceable orderly and in an themselves public exclusively used in the will be funda fashion, is such a consider there private authorities as were owners if that a sidewalk right to so use mental Casey, longer 121 is no Thomas valid. v. Thus, exception. be the permit would 185, 866, 1 on Davis. A.2d rested N.J.L. 612, Stagg, Ala. So. 72 “[A]ny person engaged pur R. R. Co. in a lawful 9. right pass 164. suit has the interference, streets without threats of Massachu v. Commonwealth 10. Jacobson International intimidation.” Russell v. setts, 49 L. 197 U.S. Union, etc., 258 Ala. 64 So.2d vaccination); (smallpox Lieber Ed. 643 pedestrian is a vis vis a street Nor Carr, man Van de delivery railway running grade (milk deemed be 50 L.Ed. 305 Ct.S. etc., Birmingham, Ensley, trespasser. permit). Co., in such a case would have burden of States v. Carolene Products proving (beyond doubt) 152, 153, 778, 783, reasonable (1) (2) no was issued and 82 L.Ed. 1234. expres-

abridgement rights (either any attempt “For these reasons re- by locomotion) sion or of over- warranted justified strict those liberties must riding considerations. public interest, clear threatened not Picketing, doubtfully currently regulated by spac- remotely, but clear and picketers present ing (both danger. as to fore and aft The rational connec- keeping circulating remedy provided abreast), them tion between the curbed, way yielding passers-by, evil to be which in other af- might support legislation useful contexts fords a illustration. against process grounds, attack on due Ordinarily, reviewing in a court rights will not suffice. These rest on legislation remedy will at look with the firmer Accordingly, foundation. what- favoring rationally intendment that all con orderly ever occasion would restrain passed nected through mischiefs col persuasion, appro- discussion and at lective mind of the Thus lawmakers. priate place, time and must have clear though inhibition of sometimes support public danger, in actual im- conduct— partly support innocent —can find in the pending. abuses, Only gravest en- police power state’s if aimed a substan at dangering paramount interests, give oc- tial evil. permissible casion for limitation. It is in therefore our tradition to allow balancing First Nevertheless, in discussion, the widest room for the nar- weighted finds the scales Amendment cases restriction, range par- rowest for its freedom of the beginning in favor in the ticularly when this is in exercised Rut- As sought to be restrained. which is conjunction peaceable assembly. with Collins, supra, J., v. ledge, said Thomas It was not accident or coincidence 529-530, S.Ct., 322-323: 65 at 323 U.S. rights speech to freedom in again us with “The case confronts press coupled were single in a system places this Court our duty guaranty people rights with the say freedom ends where the individual’s peaceably petition to assemble and to begins. power Choice and the State’s grievances. these, redress of All delicate, always border, now as on that identical, inseparable. not though are pre usual perhaps more so where They cognate rights, Jonge are cf. De supporting legislation sumption 353, Oregon, U.S. 299 [State of] place given preferred balanced 364, 255, 259, 278, 57 S.Ct. 81 L.Ed. great, the indis in our scheme to and therefore are united in the First ” pensable secured democratic freedoms * ** Article’s assurance. by the First Amendment. Cf. Schnei 1159 reference that the conclude We Jersey, U.S. of New 308 der v. State welfare, peace, safe- (“public the factors 147, 146, 155; L.Ed. Cant 60 84 S.Ct. order, health, decency, good morals ty, Connecticut, 310 U.S. well v. [State of] police but facets convenience”) are 1213; 296, 900, Prince 84 L.Ed. 60 S.Ct. it to City to enable power conferred on Massachusetts, of] [Commonwealth aas viable and maintain itself establish 158, 438 L.Ed. 321 U.S. 64 S.Ct. [88 only the source entity. These elements are these liberties priority gives That 645]. choosing the City may look to which the sanctity permitting and sanction pow- Police legitimate end. means toward a it is the char dubious intrusions. And ready ex machina. deus er is not an ever limitation, right, acter not of whether gov next devolves on enquiry determines standard what body established legislative has Compare City’s United erns the choice.

83 purposes of as been used for prevent abuses appropriate means to sembly, communicating thoughts be the streets. citizens, discussing tween V. 1939, O., questions.’ Hague v. C. I. 954, 964, 496, 515, 83 L. U.S. 59 S.Ct. AN INVIDIOUS IMPOSE DOES § Although has Ed. 1423. this Court PRIOR RESTRAINT? recognized that a statute be enact the affirmative. clared a sound on its face. Niemotko In Saia v. This v. State People of State question we truck permit ordinance 95 L.Ed. 267: Maryland, must answer New court de- York, void , ministrative official discretion to teria public places. licensing systems which vest in an ad ed which Cox v. State of New or withhold a 312 U.S. normal unrelated to we have prevents 569, usage * ^[*] * permit upon consistently proper of streets and S.Ct. serious Hampshire, ” regulation interference condemned broad cri parks. grant 1941 many examined times “This Court has Union v. American Civil Liberties Town by systems which local licensing the Cortlandt, Sup., of 109 N.Y.S.2d 165: parks use of their regulate the bodies * * * In those public places. and legisla- “Although in most cases where statutes this Court condemned cases down, dis- the tive acts have struck been required permits that ordinances which licensing administering the cretion a local officials as be obtained placed in power has administrative been public places, prerequisite the use of to official, where the is no different rule require- grounds a license on the itself legislative body reserves for prior restraint on ment constituted a licensing pow- the administration of speech, press religion, freedom of er. In the case of Niemotko v. [State drawn, and, narrowly in the absence Maryland, 268, 340 U.S. 71 S.Ct. of of] standards reasonable and 328, 325, 267, 280, applications definite for follow, must be invalid. the * * * to customarily for a license were made officials ” (Italics added.) Commissioner, and, first the Police to him, application if refused was then York, People Kunz v. of State of New Even that made to the Council. 290, 312: U.S. 71 S.Ct. body permitted was not to have un- “ * * * here, then, an ordi- We have limited and uncircumscribed discretion. of- gives an administrative nance which type It is that of discretion that has power control discretionary to ficial and, necessity, been here vested of speak citizens to advance Court must declare the ‘Permit Ordi- streets of matters on the religious unconstitutional.” nance’ such, ordinance York. As New Louisiana, supra: Cox v. State clearly prior restraint on invalid as a rights. Amendment exercise of First recognized that has “This Court in a discretion broad lodging a munici- of such considering right of “In determine him to public public official allows the use of streets pality control per- views, be expressions view will expression religious thus This which will not. mitted and the words of Mr. we start with Justice suppression a device for the title of sanctions ‘Wherever Roberts that per- of ideas may rest, they of the communication parks streets censor. act as a mits official immemorially in trust for the been held New mind, People of State and, See public time out of Saia use of the York, ings ^[1148] system only supra, 334 U.S. at allowing parades or Also inherent prior permission 68 S.Ct. in such meet- teenth as lating fore, applied the statute Amendment. appellant’s conviction the States as so It applied follows, there- by the Four- for vio- en- must be reversed.” forced danger is the obvious an official group person or right of a to the standards are The administrative equal protection denied not to be virtually City’s power those of basic Niemotko v. State laws. See expressions entirety. used are its supra, Maryland, 340 U.S. at Hence, single couched the distributive. 327, 333; Yick cf. [325], at 71 S.Ct. opinion of reference to the Commission’s Hopkins, 118 6 S. Wo v. safety, welfare, peace, public or of clearly It is 30 L.Ed. 1020. Ct. order, health, decency, good or of or of or of public enable of- unconstitutional morals, or of or of would suf- convenience expressions of determine which ficial to fice for a refusal. permitted will will be and which view “ ** * power police of a state] [The engage discrimi- in invidious must be exercised for an end which is persons groups either among nation adopted in fact and the means providing system use of a statute reasonably adapted be must to the ac discretionary licensing power of broad complishment of that end and must not or, case, equivalent in this arbitrary oppressive.” Treigle — system such a enforcement by selective Ass’n, Acme Homestead extremely prohibitory of an broad stat- 80 L.Ed. 575. ute. is, course, undisputed appro- VI. “It discretion, prop- priate, limited under 1159 LACKS ASCERTAINABLE § ordinances, erly con- drawn statutes or STANDARDS duration, time, place, cerning the public manner the streets for of use of If fifty-two the cohesiveness of the assemblies vested in administra- be pedestrians having starting a common officials, provided such limited tive point apparent and common destination were is 'exercised “uniform- discretion procession, held to constitute a nevertheless ity of method of treatment we should be constrained hold fore application, facts of each free from im- going ordinance invalid for the lack of as proper inappropriate considerations certainable constitutional standards in de * * * and from unfair discrimination” termining administratively permit when a “systematic, consistent a [and with] granted. shall be City Baines v. of Dan just treatment, and order of with refer- ville, Cir., 337 F.2d 579. ence to the convenience of use of ’ * * find, §, far highways So as we can has been *.” Cox v. State Hampshire, directly only by appellate supra, of New reviewed once 312 U.S. at City Birmingham, courts. In Primm [762], v. See Poulos 766. supra, City we held Hampshire, supra. singled had out the State New any showing defendant without be- nexus practice “But here it is clear tween him and pedestrians. other Rouge allowing unfettered in Baton There, Johnson, J., said: regu- in the discretion in local officials * * * the acts of use of the streets hold that lation of the “To the above meetings un- peaceful parades and is an Primm were violative effect, would, appellant’s parading abridgment ordinance warranted pro- assembly require parading to be speech se- and freedom wearing by every Amendment, cured conventioneer cured to him the First Danville, supra, ap- attempting to In Baines button large political Model to the proving made en- reference is every sporting street, byor cross drafted Regulating Parades Ordinance waving pennant that denotes thusiast Municipal Law Institute the National proceeding to the loyalties while his ” Officers. field encounter. features salient analysis of the Hence, parallel columns have set out the NIMLO Model: 1159and of § MODEL NIMLO CODE,

BIRMINGHAM 1944 n supra. Par., 2d (§ I. 10-304 Application Form of I. provided by On forms Chief A.

A. Written Police B. Information B. Information tele- name, address “(a) The persons, 1. vehicles No. of seeking person phone number of the animals ; parade such conduct Purpose 2. parade proposed to be “(b) If the place of demonstra- (or 3. Route of, by an for, on behalf conducted tion). name, address organization, headquarters telephone number of the given. required Time not to be au- and of the organization, responsible heads of thorized organization; such name, tele- address “(c) The person who will number of phone and who will parade chairman be conduct; responsible for its parade is to “(d) The date when conducted; be traveled, “(e) The route to be point starting and the termination point; approximate number of “(f) The who, persons animals and ve- which, pa- hicles will constitute such rade; animals, type and de- vehicles; scription parade when “(g) The hours such terminate; will start “(h) to whether the A statement as por- parade occupy only a will all or pro- tion of the width of streets traversed; posed to be any “(i) The location streets assembly parade; for areas such “(j) The at which units time any parade begin to will assemble areas; area such assembly CODE, BIRMINGHAM 1944 MODEL NIMLO supra. Par., 2d “(k) space The interval to be pa- units of maintained between such ; rade “(1) parade designed If the to be by, any for, held and on behalf of or person applicant, other than the applicant permit shall file such with the Chief of Police communi- (cid:127) person cation in writing from the proposing parade, to hold the author- izing applicant apply for the permit on his behalf. “(m) Any additional information which the Chief Police shall find reasonably necessary to a fair deter- permit mination as to whether a should issue. _ application:

C. Late days proposed parade. before Exceptions II. $_ D. Fee: processions excep- A. Funeral Exceptions tion. (§ II. 10-303 A. processions. Funeral B. going Students and from class- es, etc. governmental A acting C. agency III. Standards for scope. Issuance within grant A. “The commission shall * * * (§ III. Standards 10-305 prescribing the streets judgment:” the Is- unless in its “SECTION 10-305. Standards for permit Police shall issue suance. Chief of should be refused because provided as for hereunder following: or more of one when, ap- from a consideration welfare; 1. Public plication and from other informa- such peace; 2. [Public] obtained, he tion otherwise safety; [Public] finds that: health; 4. [Public] parade “(1) not The conduct of the will decency; 5. [Public] substantially interrupt safe and or- order; good 6. [Public] derly contig- movement of other traffic morals; 7. [Public] route; to its uous 8. convenience. [Public] “(2) parade will The conduct of the require great not of so diversion police City to number of officers of

properly police the line of movement contiguous areas thereto as to prevent police protection normal to the City; empowers permit, e., i. § 10-308 NIMLO Model for a time or route different proposed. alternate the Chief Police to issue an from that MODEL NIMLO CODE, BIRMINGHAM 1944 supra. Par., 2d will parade such conduct of “(3) The great of so require diversion not prevent as to number of ambulances portions of to service ambulance normal occupied to be City other than areas march and proposed line of ; contiguous thereto persons, ani- “(4) The concentration points of assembly mals vehicles at interfere parade unduly will not police protection proper fire and to, con- of, areas or ambulance service areas; assembly tiguous to such parade will “(5) conduct such The fire- interfere with movement of not fire; equipment fighting enroute to parade is not “(6) The conduct likely per- reasonably injury to to cause provoke disorderly property, sons to disturbance; conduct create a parade “(7) The is scheduled move point origin point from its its expeditiously without termination enroute; delays unreasonable parade “(8) The not to held for be advertising any purpose the sole product, event, goods and is de- signed private be purely held Appeal IV. Procedure: profit.” except presuma- None, courts, (§ Appeal IV. Procedure: 10-307 bly by way mandamus with al- Appeal prayer “SECTION Proce- ternative for certiorari. 10-307. person aggrieved dure. Any shall have appeal pa- the denial aof City rade The to the Council. appeal be shall taken within days after notice. Council appeal shall act within receipt.” ......days after its steals, keystone A illustration the canon of law he before murders or (or literal) warning strict that a fair should at least construction of is reasonable McBoyle given penal language world in is found United to the law understand, States, the common will world government L.Ed. the tried the do if a certain 816. There what law intends to warning apply Dyer punish passed. is To the Act to theft of an line make the airplane. Holmes, J., concluded : fair, possible so the line should far is a rule of conduct be clear. When likely a crimi-

“Although it is not that evoke in laid down in words that carefully consider text nal will 88 only definition, or picture by dicial the context or ve-

common mind land, legitimate construction, on the statute aid to its moving hicles other upon probably varying impres- aircraft sim- but not be extended to should may given ply juries us as to because seem to that a sions whether it applies, policy upon spec- similar or areas are or are not to included particular legislature had ulation that if within localities. con- it, very guaranty process thought likely broader words stitutional of due can- upon support not be allowed a have been used. States to rest would United Thind, 204, equivocal.” Bhagat Singh 261 U.S. so 209, 338, 43 S.Ct. 67 L.Ed. 616.” Cardiff, In 344 United States U.S 174, 189, 200, Douglas, 73 S.Ct. L.Ed. 97 And from case we J. a Massachusetts said: quote: N.E.2d 666. wealth v. the first essential of due law.’ A ‘statute which either forbids or re- 127, 70 L.Ed. 322 must quires vague that and differ Co., tion violation to discover those conditions which convert hibited, lies facie lawful into that which is criminal. ard seven minutes. Not all police sonable. The vice of the ordinance failure to duct continues ject “ cedes. Under the ^[*] * * child. This the and the loitering capable 269 to a direction to necessarily guess Connally its officer enable one but failure to Carpenter, Prima comply as to doing men only on followed conditionally intelligent v. General Construction 385, conduct its facie, of an act in terms so and the any man, public way Commonwealth common ordinance, such application, prescribe any chargeable 325 Mass. which is unrea- mere which is at its move idling human ’’—Common- expiration unreasonable intelligence process lawful sub- woman, sauntering is meaning on with its violates is lawful evalu- stand- prima pro- con- con- business. The alternative construction tainties make that construction nant with manded? Or must mand for prosecution is based? Those uncer- granted and had no relation to the ago permission. But that view would breed a host criminal makes granted. Under tion. sion once hibits tion which 301 mission’. makes tion at be true. on where does the Act manager face of the make sense “All that permission ‘making request it if was It illegal entry permission penalty would seem therefore reasonable hour. Section problems. must allow given, But refusal to It is that granted § danger inspection revoked relate to statute out the revocation of it does not enable once Department not the (f) inspection no matter how of the statute. No- has been and no matter if it for the backs with that the Act say Would revocation entry entry given carry view failure inspection obtaining per- conditioned permission previously inspection; regulated says permis- a sanc- factory inspec- inspec- on the- preg- us to long- give pro- Act de- de- 704 pressed equally on us is treacherous Co., Connally v. General Const. 269 U.S. gives conflicting because commands. probably S.Ct. the most fre- inspection dependent It makes on con- quently cited case this area: inspec- sent and makes refusal to allow “ * * * ap- The result is that tion a crime. However we read plication depends, of the law not (f) warning, we think it fair cf. itself, meaning a word of fixed Weitzel, United States v. one made by statutory ju- definite 872; McBoyle L.Ed.

89 States, 25, 853, 1284, 216, v. United 283 U.S. 51 S.Ct. 34 S.Ct. 58 L.Ed. struck 340, 816, factory 75 L.Ed. to the man- down state anti-trust law which used “real consent, 1891, ager give Kentucky he he that if fails to value.” Cf. Constitution vagueness is a criminal. The 198. vice of treachery in criminal statutes is People In Winters of New v. State determining conceal either in what York, 507, 665, 333 U.S. 68 S.Ct. 92 L.Ed. persons are included or what acts are Reed, 840, J., said: prohibited. vague Words which are “ * * * fluid, cf. L. certainty United States v. Cohen The standards of 298, Co., 81,

Grocery 255 41 S.Ct. punishing U.S. statutes for offenses 516, may higher pri- 65 of a depending L.Ed. be as much than in those trap marily for the as the ancient innocent sanction civil for enforce- Caligula. laws of cannot sanction ment. The ‘must We crime be defined with by taking refusing appropriate for a man heels definiteness.’ Cantwell v. 296, permission Connecticut, grant Act State of which this 310 60 U.S. 900, 84, 1213; gave its him the L.Ed. apparently face S.Ct. Pierce v. 306, 311, States, United to withhold. That be mak- 314 U.S. 62 would ** * 237, 239, ing an L.Ed. act criminal without fair and S.Ct. 86 226. effective notice. Herndon Low- Cf. * * * * * * ry, 732, 242, 301 57 81 L.Ed. U.S. S.Ct. pre- impossibility defining “The 1066.” cise line uncertain- permissible between ty by describing caused statutes general This rule of strict construction crimes words well understood courts, penal early began in our laws through long use the criminal law Thus, Washington, both state and Federal. —obscene, lewd, lascivious, filthy, in- J., Sharp (1815), 27 States United disgusting decent the unconsti- 118, —and 1041, 16, p. 264 Fed.Cas. No. Pet.C.C. person vagueness tutional that leaves a 122, said: prohibited uncertain the kind as to “ * * * create crimes Laws which massing stories to incite conduct — ought explicit in to be so themselves arguments crime —has resulted three standard, by reference to some other legisla- this case in this Court. The penalties subject that all men their obviously draftsmanship tive bodies in duty to what acts it is their know judi- difficulty same as do ” * * * avoid. * ** interpretation. cial in Lacher, 134 U.S. ;¡: See also United States v. “* * considering the But even 624, 625, 1080; 10 33 United S.Ct. L.Ed. meaning by put gloss upon the literal 278, Brewer, 11 States v. 139 U.S. S.Ct. Appeals’ restriction the Court States, 190; 35 cf. Nash v. United L.Ed. mass- of stories ‘so statute collections L.Ed. 1232— 229 U.S. 57 inciting vi- ed as to become vehicles trade” an ascertainable “restraint of has against depraved crimes olent City of meaning. Eubank v. common law ** necessarily not person Richmond, 226 U.S. S.Ct. specifica- we find the passion,’ sexual 156; Pipe Line L.Ed. Panhandle Eastern prohibited publications, tion of Comm., Highway Co. v. State indef- distribution, uncertain and too justify the conviction inite detective petitioner. though all subsuming Even court find By criminology are and treatises on process and tales concept due its rule into though publications forbidden, and rather not Amendment the Fourteenth under charac- up criminal deeds made Harvester International Sixth. than are or lust terized bloodshed omitted Kentucky, v. Commonwealth Co. interpretation from the of the Court force and effect a per- valid license or Appeals, we think collec depart- fair use mit therefor education * * pictures tions and would be stories ment *.’ The statute further' impos provides: interdicted because of utter sibility of the actor trier to know or the “ ‘The director of the pic- [motion guilt this new standard would where depart- division the education ture] [of draw line allowable between the or, when authorized the re- ment] publications. in and the forbidden No gents, the officers of a local office or purpose required inde tent or is —no bureau shall promptly cause to be ex- obscenity cency any hereto or sense every amined picture motion film sub- massed fore to the law. known ‘So required, mitted to them as herein incite crime’ can mean as to to become part unless such film or a thereof is- ingful only by This concrete instances. obscene, indecent, immoral, inhuman, example enough. is not one The clause sacrilegious, or is of such a character proposes punish printing to its exhibition tend to would cor- publications circulation of courts rupt crime, morals or to shall incite juries may generally or think influence * * * issue a license therefor. persons to commit violence crime of person. conspiracy against to No “ required. is commit a crime See Muss * * * Under such standard the 95], er of Utah v. State [333 most careful and tolerant censor would 562], S.Ct. L.Ed. this Term. 397 [92 virtually find it impossible to avoid It is effective of new not notice favoring religion another, one over or crime. The clause has no technical subject he would be to an inevitable- light meaning. law can common Nor tendency expression to ban the of un- gained from the meaning as to the popular religious- sentiments sacred to a a whole Article of section as or the minority. Application of the ‘sacrile- appears.

the Penal Law under which it test, gious’ respects, these or other might questions raise substantial under guaranty the First Amendment’s separate “ church with and state freedom vague Where a so statute is However, worship for all. from act, as make criminal an innocent standpoint speech freedom under it conviction be sustained. cannot press, point enough out that Lowry, 242, 259, Herndon 301 U.S. legitimate the state has no interest S.Ct. L.Ed. 1066.” any protecting religions all case, views censorship Joseph In “Miracle” distasteful to suf- them justify prior ficient Wilson, upon Burstyn, restraints Inc. expression of those views. It is not word “sac- (contrasted government the business of rilegious” “blasphemous”) our na- with suppress Clark, imagined tion to J., real at- fatally vague. was held to be particular religious tacks doc- there said: trine, they appear publica- whether “ * * * That statute makes it un- tions, speeches, pictures. motion exhibit, sell, lawful lease or 'to ‘sacrilegious’ place is the any lend the term for exhibition at “Since here, pay it is for standard under attack amusement or in connection sole decide, any necessary business in of New for us the state York, example, picture censor motion or reel whether a state film pictures clearly drawn specified exceptions not relevant motion under [with here], prevent designed applied to unless there in full statute is at the time

91 whereby dom: the That is individuals obscene films. showing of the State, governed question the one like members of a well very from different family, bound their We that are to conform us. hold now before pro- general to Amend- behavior rules of and Fourteenth under the First priety, neighborhood, good may good film on and not ban a ments a state manners; decent, that and to be industrious a censor’s conclusion the basis of ” respective and in their sta- ‘sacrilegious.’ inoffensive it is tions.’ 4 Blackstone Commentaries may to the fol- also be had Reference 162. Amsterdam, Void-for- lowing articles: 67; Doctrine, Vagueness 109 U.Pa.L.Rev. Holmes, speaking “Mr. for the Justice General Vague in or Aigler, Legislation Supreme Court of the States United Freund, 831; Terms, Use 21 Mich.L.Rev. Haskell, in Noble Bank 219 State v. Statutes, 30 Yale of Indefinite Terms 104, 111, 188, 186, U.S. 31 S.Ct. 55 437; Hall, or Construc- Strict Liberal 112, L.Ed. observed: L.J. 748; Statutes, 48 H.L.Rev. tion of Penal “ may way ‘It in a general be said and Seligman, of Law Hall and Mistake police power all extends to 641; Note, Rea, Mens 8 U.Chi.L.Rev. public great needs. Camfield v. United Statutory Conduct: Personal Standards States, 518, 864, 42 167 Uncertainty Viola- Indefiniteness and may put It L.Ed. 260. be forth aid 963; Process, 38 H.L.Rev. tions of Due by usage, of what is sanctioned or held Note, Indefinite Criteria Definiteness prevailing morality strong Statutes, 160; Note, Void 45 H.L.Rev. opinion preponderant greatly to be Statutory Escape Vagueness: An from immediately pub- necessary Horack, 272; Interpretation, 23 Ind.L.J. lic welfare.’ Statutory Con- Liberties and Constitutional 448; Quarles, struction, Iowa L.Rev. 29 Statutory Construction Problems Some enacting “It is also settled law that ‘In Law, Vand.L. Approaches in Criminal 3 statute, a criminal there is an obli- 531; Morris, Note, 26 Tex.L. Case Rev. gation frame on the State so it Note, 216 and Case 33 Va.L.Rev.

Rev. those who are to administer it stranger to our principle those to whom to be adminis- Nor this State, 243 Ala. tered Carter v. know what standard con- jurisprudence. State, 764; required 254 duct 575, Kahalley is intended to So.2d v. be 482, legislation may run afoul the due Ala. 48 So.2d 794. process clause because a failure to Simpson rule Mr. well stated Justice up any guidance set sufficient to those State, Bolin 266 Ala. 96 So.2d law-abiding, to advise who would be question court on where the certified the nature and cause defendant of vagueness. the stink bomb law void for held of an he on to accusation is called we There find: answer, guide the courts provision “If the can be sustained as State, Kahalley law’s enforcement.’ it must constitutional under 794, 795; 254 Ala. 48 So.2d police power state which au- State, 239 194 So. Seals v. Ala. imposition thorizes the of reasonable 682; State, Standard Oil Co. v. regulations in the interest of 667; State, Ala. Carter v. So. health, safety public morals, public 575, 11 243 Ala. So.2d 764. general Looking to one welfare. specu- person required “And authorities, is not Blackstone earliest meaning late as a statute at regu- to the power defines due be ‘the peril king- Lanzetta v. of his freedom. lation and order of the domestic 451, 59 Jersey, 306 U.S. of New State 41], “Subdivision 3 of Section intent of 888. The [T. supra, is ***.*** appear severable must legislature opinion are of the there is Co. Oil Standard face of statute. process is. no denial of due of law nor State, supra.” v. language of the subdivision soi 1957, Ho year, v. the same State In vague meaningless. to be There are 51, 642, man, Ala.App. So.2d where 92 38 imprecise ‘profiteer no words such as 41, 1940, T. § trial court had held Code life’, ing’, ‘necessity Gold State v. unconstitutional, 3, re 221, subdiv. stein, 569, 308, ‘profit, 207 Ala. 93 So. opinion compasses a number The versed. gain advantage, or unusual in the or imprecise cases both of words of Alabama dinary business’, legitimate course of holdings: and constitutional Skinner, Ala.App. 204, State v. 20 101 327, 329, ‘near’, Kahalley So. v. case, peeping tom are cited to “We State, supra. See also Parisian Co. v. State, 48 Kahalley 254 Ala. So. Williams, page 383, 203 Ala. at 83 gist of the offense 2d 795. The ” page So. 122 at 127. person go any male there was * * * any into room ‘near * * * stare Since the stated for re- standards or under his con- not his own fusing welfare, peace, are those of trol, occupied by any female is safety, health, decency, order, good morals * * person in turn This case convenience, we—in addition to over- Fourteenth Amend- bottomed on the words, broadness —find these as related to' via Federal Constitution ment to the parade, procession demonstration, ei- People of New Winters v. of State sufficiently preciseness ther lacking in York, 333 applicable without a settled common law therein L.Ed. and other cases meaning. cited. example, For Hague v. Committee for Organization, Industrial Kahalley supra, Roberts, J., decision “And from the aptly pointed peace sprang City Birmingham, out that on the Connor streets easily could by suppression. Ala.App. achieved 60 So.2d 474. persons offense two there was no In long the context of drawn out resort opposite (except sex man and wife congested relief, courts for these stated parent child) and minor shall oc- truly only power, sources of “standards” — cupy jointly privately any room not means to an end—show 1159 to be § house, hotel, any lodging etc. void on its face. what, “These cases illustrate in the VII. concepts process,

absence of of due would nevertheless be obnoxious crimi- 1159 IS VOID § AS APPLIED legislation. nal Kahalley Thus in fallacy exposed by the question, Hopkins, Yick supra, Wo v. that, held ’ ‘How far is near ? In Connor the though a San Francisco ordinance aimed at language, though unambiguous, is so fire hazards had a wording, valid surface sweeping broad and pre- as to raise a yet employment its against only Chinese sumption legislator would laundrymen was discriminatory. not have so intended unless he had add- ed words, all inclusive and absent the Here we have no direct evidence of all inclusive words the persons courts would other being charged with a breach attempt re-legislate, Ala.App. 1159 on the same occasion as that page 499, at page 60 So.2d at of instant Nevertheless, concern. the bor- “A against correctly, case made here If I remember at roll derline Shuttles- coupled plausible they less worth, things, call read a lot of different with even presentations reports, read in Primm v. auto stolen and read a lot reviewed there, supra, things other cases Birmingham, and in two I come and if Primm, authority correctly, they I decided here on remember believe read pat- Primm, carrying constitute a out the ordinance time as and said same signs prohibited. tern of enforcement. would be quota- “Q big sign facts in the Did In addition to listed describe how opinion in Judge had be ? tion from Johnson’s excerpt hereinabove), we (set Primm out They “A did not. of the arrest- also one evidence of ing officers: “Q anything said there else Was you remember? there that * * * you informed

“Q Were permits issued anyone that no had been “A Not that I recall. any ? such demonstrations for “Q type they what Did describe Yes, we At call before “A sir. roll carrying signs than conduct other they or- read out this came to work an offense? would constitute said no one number to us and dinance any “A mention of con- I don’t recall any permits any to hold received had duct. downtown kind demonstrations to us.” they read out the ordinance ffQ it that you know about is Bentley v. All that import from And of similar on, not in sign she was decided she had City Div. Birmingham, 6 walking anybody, company of she was Primm, authority extract: street, and in about six across Officer, fact, fact “Q that the Is it she was arrested ? seconds people might come down that some “A correct. signs was That area with downtown morning Police Head-

discussed that disturbance, any “Q She didn’t create quarters ? street, anything else block right? that, is that other than “A It was. “A did not. Ann She

“Q And the section was also charged discussed Bentley with “Q endanger anybody’s safe- Didn’t at that time? you ty, know? far as so Yes, it “A was. not.” “A did She with, “Q you it Who did discuss cross): (on Officer- Officer? that you stated Now, I “Q believe Sergeant read— I that the

“A believe morning roll call you at the were or- or, Captain read out the either the about mak- gave you orders they when a violation. and said was dinance of 1159? violation ing arrests he just you tell us what “Q Could arrest, say an They make “A didn’t ordinance? reference said with ordinance what they just told us was case someone Well, number was object. We “MR. WALKER: signs on. with downtown that. answer go ahead M

“Q Wearing signs? tion him about those instructions. They brought are the ones who But, they say actually go “A didn’t they out. didn’t had We know about get out them. meeting a little and discussed what Well, “Q now, do, your spe- what were were so is what we are respect people trying out, cific orders with to find Your Honor. wearing signs downtown, anything? if “THE You COURT: ask him. particular any “A I don’t recall or- “Q you given any in- were They just us what ders. notified any what structions orders as to City the situation —of what the Code type signs person wearing must be pertaining such was an incident. you before could make arrest? "‘Q your understanding And was that “A No, I don’t recall such or- you anybody were to arrest ders. sign on? My understanding “A is to arrest “Q They you large tell how didn’t anybody violating my Code be, sign was to or how small? knowledge. No, “A as there was no mention to "‘Q asking areWe not about size. n othersections in the Code, City we are Well, “Q specifically what was said asking specifically about Did respect you specific at this roll with to 1159? any- have call orders to arrest body wearing sign? who was a “A I remember the exact con- don’t object that, "‘MR. WALKER: We they versation. All I read out— know Your Honor. they any said Article 1159 will cover demonstrations, parades, carrying or or Honor, “MR. Your SHORES: arewe signs They didn’t mention downtown. trying to find out whether or not he signs kind were to what of—what given was instructions to cover that say, size, or or what color or what street, these individuals blocked the anything of that nature. creating whether the were individuals signs, just a disturbance with what “Q words, they gave you in- In other type sign. coupled reading structions with that require it as to what would make the Honor, “MR. WALKER: Your we requirements arrest? One was trying are not the defendant on what person sign that a a on? must have thought, the officer or what orders only he was under. The evidence that right. “A That’s will be is the evidence ad- considered all, “Q And that was and that is all room, mitted here in this court you for, arrested them correct? whether the officer was under in- structions, any. or acted even without “A That is correct.” instructions, that can make no—have case, bearing no on it will because a For case to reach here after be decided from the evidence that arrest, city go through a two tiers must n comesfrom the witness stand. first, judicial proceedings: trial a be second, But, and, city recorder; ap “MR. since he did fore the SHORES: instruction, say peal conviction, he did some from trial novo in de him, ques- law was read want we circuit court. alongside, public embracing the sidewalk can Trial in the circuit court lengths gone attorney’s (unless might to such city filing not have had on the

he complaint. demonstration. waived) a new in Mont- Appeals, Georgia Court Accordingly, might come before a case Athens, etc., Ga. Mayor, gomery city for the the recorder without counsel number App. 123 S.E.2d where being prosecution in detail aware slogans with signs (bearing men with court, city’s trial. In the circuit before University scriptural citations) picketed the instruction, attorney, his under client’s Attorney campus Gen- Georgia while the indispensable actor. within, spoke had eral United States pattern of enforcement exhibits a This say: this to discrimination within the rule of Yick Wo undisputed in this case show facts “The Hopkins, supra. petitioners did not obstruct that the traffic interfere with either vehicular IX. pedestrian not en- traffic and were activity re- gaged which would THERE INSUFFICIENT WAS quire police escort to direct traffic EVIDENCE TO SUSTAIN only did conjunction therewith. Not THE CHARGE unreasonably and inter- burden not streets, city prosecution, In a ordinance fere with normal use by proof city case of Athens but must sustain its required ac- degree undisputed an in facts show that their the same case of offense, jury tivity did burden or interfere dictable to convince any in use the streets beyond doubt. the normal evidence a reasonable therefore manner whatsoever. We are Here, proof weighed in we consider the activity opinion that the of the procession scale which this fails to show petitioners did not con- on this occasion require, would under the terms of § by contemplated parade stitute a as permit. getting of a usually accepted ordinance or ”* * * parade. definition of a No came in as to or not evidence whether pedestrians question' fifty-two — Here, overruling the trial court erred number, squad at- a football with about evi- appellant’s motion exclude the as a tendants —acted as a cohesive unit prima facie case. dence for want of a military group would march.

X. City whether failed to show The OPINION LIMITATION OF pedestrians run off were not other access, process

sidewalk, either in blocked arose, Cox v. State this case When whether evidence showed or transit. No Louisiana, not announced. supra, was disobeyed lights or group traffic or not the supra, Maryland, was Freedman v. State directing crossings. was no There officers judge rest- trial wings. The waiting in the wandering onto jaywalking evidence of New vigorous State of more Cox v. ed on a roadway. Hampshire, supra. only before have emphasize that we clapp We singing and Were it not for the use In the city walking sidewalks. activity us a on ing13 spurts indica and some stringent roadway probably less puisne appellant being a leader tive of the prevail would standards of construction conjunction King, in with under Dr. prosecutor. against the Code definition “street” in the broad Hughes, 25. N.C. State v. Moreover, potential- parades meetings. doubt the facilities for we do not ” * ** ity City’s added.) adopting (Italics ordinance an with- suppressing expression out free locomo- liberty Ordered for end which we quote tion. We Cox v. State of laws, enforce not the wish self-immola- Louisiana, supra, per Goldberg, J.: martyrs tion. On the bones to his tyranny' sys- “ has lasting man never built a * ** speech rights of free tem of Law. in our assembly, while fundamental society, not mean still democratic do perceived Lord Acton in 1877 the inter- beliefs everyone opinions or play rights duties, between between any group at express may address a competing rights saying: claims of — The con- public place time. “ * * * At all times friends sincere liberty implies guarantee of stitutional rare, of freedom have been and its society organized the existence triumphs minorities, have been due to order, maintaining public without prevailed have associating in the liberty itself be lost would themselves with auxiliaries whose ob- anarchy. excesses of The control of jects own; often differed from their example travel the streets is a clear association, and this always which is responsibility governmental to insure dangerous, has been sometimes disas- necessary order. A restriction trous, by giving opponents just relation, designed promote grounds opposition, by kindling interest convenience in the dispute spoils over the in the hour of all, susceptible dis- and not to abuses of success. No obstacle has been so con- criminatory application, cannot dis- stant, or so overcome, 'difficult to regarded attempted by the exercise of uncertainty and touching confusion which, some civil in other circum- nature of liberty. true If hostile inter- stances, protection. would be entitled to ests wrought have injury, much false justified ignoring One would not be ideas wrought more; still and its light the familiar red because this was advance is recorded in the increase of thought protest. be means of social knowledge, as much improve- as in the one, contrary reg- Nor could to traffic ment of laws. history The of institu- ulations, upon insist meeting street in a tions is often history a deception Square the middle of Times at the rush illusions; and for their depends virtue hour form speech as a of freedom of on the produce ideas that and on assembly. or the Governmental authorities spirit preserves them, and the duty form responsibility have the and keep to may remain unaltered when the open their sub- streets and available for stance passed has away.” (Italics group add- movement. A of demonstrators ed.) could not insist the to cor- street, don public off a or entrance ato X. private or building, and allow no one to pass agree who did not to listen to their CONCLUSION exhortations. appellant

The standing ques had to tion the City ordinance. Staub v. of Bax ley, supra; Maryland, Freedman v. State “We have no in occasion this case to supra. consider the constitutionality of the uniform, consistent, and nondiscrimina- We consider that (1) 1159 of the 1944 § tory application forbidding of a statute General City Code of Birmingham, the all access to streets certainly and other the by use of pe- sidewalks n destrians, vagueness for had no organization. is void because discernible There overbroad, consequently meaningless, pres- and also number photographers were a permits appellant, preacher, ent. The standards for the issuance iswho a left processions; (2) people been the said 1159 has en- church with the who walked in § ' pattern regard forced in a without to even formation. He entering was observed the meaning wearing suit, by City the church the here claimed for business a and when he left wearing to such an extent as to make it the church unconstitu- he was black a applied pedestrians “bluejean” using tional as shirt and the Rev. Martin trousers. sidewalks; (3) City King Luther Abernathy the to make A. failed Rev. B. led case, group purported meaning a under the in They formation. the were dressed being in attire appellant by similar appellant. of there a need for the to that worn group The by permit clapped in in sang this case to be covered a use formation proceeded hands as company sidewalk, the in along sidewalk the with others. but orderly. were otherwise No was Therefore, judgment below due to parade issued for procession to be appellant be reversed and the is due to be April 12,1963. held on There is no evidence discharged sine die. concerning anyone whether applied for such permit. Reversed and rendered. Higginbotham,

Police Officer R. N. City, witness for the was 5th Avenue JOHNSON, Judge (dissenting). North and 18th when he first ob- Street court complaint in the circuit The filed alleged parade procession. served City’s attorney charges appel- group He testified that formation parade part participate lant “did take turned on 5th Avenue from 17th Street (cid:127) City procession the streets of on proceeded east sidewalk on on permit therefor having without secured a Avenue, group north side of 5th that this commission, contrary and in from the marching was four to six abreast “all the the General violation Sec. sidewalk”, way stop- across and that he Birmingham Code of of 1944.” ped them in the middle of block between 17th 18th Streets. He stated evidence, City, as introduced following group crowd in formation was during the afternoon of tended to show that street, in the center of the and also that he 12, 1963, approximately 52 Friday, April appellant observed group forma- persons, Negroes, most de- of whom were tion, in the “third or fourth row back.” parted block of from a church in Birmingham, grouped Ratigan, 6th Avenue North wit- Police Officer Edward front City, “in formation” the sidewalk in ness for that he followed testified church, alleged procession the and then walked “in formation” the parade the from or along blocks. the sidewalks for several it was church on 6th Avenue to where Avenue; group from the church in stopped Their route followed east on the 5th that Street, along persons marching 6th North 17th then Avenue formation consisted 52of along abreast, approximately forty to 5th south 17th Street one block inches two North, again along apart; persisted Avenue then east and that this formation and group stopped. 5th North 18th Street. until the He further Avenue towards was They policeman stopped appellant in the that was time in line were a stated at no partner marching group and 18th in but middle between 17th with a block “Spectators” lining walking along group talking route fell was Streets. side the them, group giving encouragement. in forma- to' them in behind and followed the and they passed by. tion as This crowd of Police Officer Herman Evers testified that “spectators” consisting appellant “bounding hundred was of several from the front — persons marching “waving the rear” group walk in formation and not —did Hampshire, 312 on, come In Cox v. State of New telling them to his arms come tó on.” Supreme had Court the United States testi- Appellant’s evidence consists group question before a of whether witnesses, including mony himself. of five twenty religious of fifteen to members of a approxi- tends to. show that His evidence along single marching sect in sidewalk

.mately 6th persons left the church on placards “parade carrying file constituted a abreast on North and walked two Avenue procession” meaning of a New within blocks; ap- that the sidewalks several Hampshire prohibiting parade or Statute a pellant group left the church with the and procession question without license. The a direction; in walked a few block’s the same in the a unan- was answered affirmative walking partner- that he was a in Hughes, speak- imous court. Chief Justice group walking times beside but was court, ing for the stated: quiet group, counseling them be orderly; prevent by- he also that tried appears ground “There to be for _ no spectators joining standers or challenging ruling the state court group; marching that he left the scene appellants engaged that in fact in were any group in was before formation parade procession upon public a Appellant group arrested. referred to the As streets. the state court observed: in formation as “marchers.” formation, ‘It was a march in and its advertising informatory purpose in court erred Appellant that the contends * * *(cid:127) did -not make it otherwise. City’s overruling to exclude his motion n It is immaterial its tactics were is no evidence there (1) because evidence simple. enough few and that it It assuming ar- (2) procession, parade a proceeded in an ordered and close file procession, parade or guendo there was a body persons as a collective on the . and not the sidewalk it occurred city streets’(Emphasis added.) (3) complaint, and alleged in the as streets took appellant evidence there is no Here, City’s evidence establishes pro- parade in such participated part or persons, leav- number a substantial cession. time, gath- same ing church at the the same church of that ered in front formation attempt define does not The statute maintaining marched formation while is defined procession. Parade parade or along for sev- the streets on the sidewalks Dictionary, International Webster’s New They blocks, abreast. were six eral two to Edition, follows: Second (cid:127) The clapping hands. singing their esp. a procession; “Any by ministers or march or group led was and directed the move- procession; a crowd preachers. formal marchers attracted in some- body marshalled photographers. spectators, ment of and some order; as, parade military my opinion, thing established, like This evidence firemen; parade.” circus streets as an on the common intent to march body persons. It organized, collective New is defined Webster’s Procession body persons mar- was a movement of a Edition, Dictionary, Second International military something shalled in like order. as follows: “parade procession” the It was or within a meaning supra. of Section persons or of ve- group, esp. “A of moving persons, on- containing hicles parade or that the Appellant’s contention ceremonious, or sol- orderly, ward in an is street the procession not occur in did procession; religious parade; emn as a the 2 of Section A look at without merit. capítol; to procession the go in to to Birmingham of 1944 City General Code of procession.” form a parade right engage in a part Although as to intent to treat sidewalks the discloses an part: phase the the funda- 2 reads is one of exercise of of the streets. Section assembly, speech right mental and of free and rules of “Sec. Definitions subject right such to reasonable and non- construction. discriminating regulation limitation. and “In of this the construction code Hampshire, In Cox v. of New State ordinances, following of all the defini- Hughes supra, Chief wrote: Justice observed, tions rules shall unless liberties, by guaranteed “Civil the as clearly requires context otherwise. the Constitution, imply of the existence organized society public maintain order “Sidewalk: The shall term ‘sidewalk’ liberty without which itself would be portion mean that of a street between lost in the of excesses unrestrained adjacent property the curb line authority municipal- abuses. The of line.” ity impose regulations to in order to as- safety sure the and convenience of the parlance, In common a “sidewalk” is the people in public use highways of part of assigned street of to use regarded has never been as inconsistent pedestrians. Smith v. Birmingham, with civil liberties but rather one as 42 Ala.App. 467, 168 So.2d 35. safeguarding good means of or- they ultimately depend. der which parade procession A or may be held on of travel on the streets control part sidewalk as well as that cities is the most familiar illustration street set aside for vehicular traffic. See recognition of social need. Cox v. State Hampshire, supra. of New Where'a restriction of high- the use of 1159, supra, prohibits Sec. parade pro- or ways designed in that pro- relation is to cession portion on street, in- public mote the convenience in the in- cluding the sidewalk. all, terest by disregarded cannot be attempted clearly ap- The evidence establishes that exercise of some civil right pellant part participated took or in the which other circumstances parade procession. would reject protection. or the testi- be entitled If mony regulation As Higginbotham of Officer the ef- the use of the streets parades appellant processions fect that group was in the in for- is a tradi- mation, not, testimony tional I do . gov- which exercise of control local ernment, police question other ap- officers particular the effect that in a pellant case is marching group walked beside the whether that control is exerted so giving deny as not them unwarrantedly instructions sufficient to es- participated abridge tablish he parade assembly and the opportunities procession. One who duties simi- for the assumes communication of thought lar sergeant military parade, public to a drill in a discussion of questions appellant, part immemorially did participates takes associated with parade public resort procession. places.” People In Kuntz Appellant State New contends that Section York, power to re- in the “vests commission establishing “[cjities Mr. expression wrote that strain free without Justice Jackson country throughout adopted such the use of reasonable standards for power,” private activi- requirement the First to control violates and therefore pur- and for other States Constitu- ties streets Amendment to the United tion, poses.” this character have is'protected against state ac- Ordinances of municipalities been in effect most tion the Fourteenth Amendment. pro- by municipal authorities authority to be taken many years. The Alabama public. the parades general by tect or given Sec- is such ordinances to enact Title Section Title tion provides supra, the Section 1940. of Alabama Code permit in a “unless shall issue Commission welfare, public peace, the judgment its duty It not is the this Court to strike order, health, decency, good morals safety, city a ordinance as unconstitutional down require it be refused.” or convenience it be by if a reasonable construction can vesting the as in operation I do not construe this given a field of within consti in Cof Commission an unfettered discretion tutional limits. See of Mobile but, permits, view fin, Ala.App. 243, granting denying Where or in So. 795. ordinance, susceptible to be purpose of two construc of the one an ordinance is of the safety, tions, the ordi the one which will defeat in connection with exercised it, support will the the other nance and and convenience in the use comfort Bir adopted. public. be by general construction will The stand- latter the streets Kyser, Ry., Light pur- Power Co. mingham applied & is from the ard to obvious municipal or 151. A 82 So. be of pose 203 Ala. would of the ordinance. .It view with a be construed dinance must no to that the standard little or value state was it purpose for which guided the towards Commission should be the which Mauzey, Birmingham v. adopted. City of per- safety, is comfort and convenience of 476, 108 and, varying So. streets, 214 Ala. using due to sons the complex problems the traffic conditions and it this I think is obvious that ordinance— presented maintaining orderly flow in suppress designed to 1159—was not Section streets, prac- over the it would be traffic speech as- or in manner freedom of impossible tically formulate in an or- to reasonably regulate the use sembly, but to relating system plan or dinance a uniform It does public in the interest. of the streets procession. every parade to conceivable or not may seek to control be said the what on may not The Commission members of the streets, applicable only organize and is dis- act censors of what is be said or vehicles, etc., using persons, formations of played any parade. If act in should groups or the and not individuals streets arbitrarily, may be courts. resort had to the parade engaged procession. in or The not a is the facts in It reasonable to assume from requirement applicant permit for a that the have the would case that Commission travelled, prob- the the course to be state granted appellant permit engage a persons, ani- vehicles and able number sought. parade permit been if such had parade is for mals, purpose and the A denial would been warranted municipal assisting authori- purpose required investigation was if a after deciding ties or not issuance whether found that the convenience of con- traffic permit consistent place the use of the streets at the time and Thus, required information ditions. .the unduly application set out would be proper regulation related to .the disturbed. streets, that such fact use and the required information is indicates that fully My conclusions are sustained authority power licensing given was 137, 16 Cox, 91 N.H. decision State v. arbitrarily some to be exercised or for called was A.2d 508. In that case court purpose of requirement its own. The constitutionality to determine the applicant purpose pa- parade state prohibiting a state statute permit procession procession the streets rade on without does not indicate an did not ca- The statute act from local authorities. intent the Commission to refusing priciously arbitrarily. granting purpose set out standard for de- precautions permit. overruled the bearing should The court have a fendant’s contention that the statute nothing vest- There is in the record before ed unfettered control in the licensing au- us tending to show that the ordinance has thorities. answering In this contention, applied been in other than a fair and non- court said: discriminatory I agree manner. cannot case, coupled with Primm v. implicit require act is in its “[T]he Birmingham, 42 Ala.App. 657, So.2d ment licensing authority act 236, and the two authority cases decided on reasonably granting denying li of Primm pattern constitutes a of enforce- censes, object and with reference to the ment. No violation Hop- of Yick Wo v. public ways. order on the kins, 6 S.Ct. L.Ed. express If it does not in terms ‘make 220, has argued, been nor does such viola- comfort or convenience in the use of appear tion from the record or extrinsical- streets the standard of offi ly. (Hague cial action’ v. Committee for Organization,

Industrial So evanescent are the issues in the ma- 954, 964, 1423), jority opinion, respectfully I most dissent. necessary does, inference is that it upon presumption based in favor validity legislation

of the as re by expqress provision enforced bestowing powers’ act ‘delegated upon authority, grant as a intended 180 So.2d 145 legislative power to be of due may properly delegated. Issac W. JONES authority discretion thus vested in the limited in its exercise bounds AUTO OWNERS INSURANCE COMPANY. reason, uniformity of method of upon ap treatment 8 Div. 7. the facts each plication, improper free from or in Appeals Court of of Alabama. appropriate considerations and from Nov. systematic, unfair discrimination. A treatment, just consistent and order of

with reference to the convenience of

public use highways is the stat

utory licensing mandate. The author

ity delegation power has no in ex legislature

cess of that which the granting power has, legis and the attempted delegate lature power no possess.” it did not Supreme Court, The United States in a decision, statute, unanimous held that Supreme construed Court of New Hampshire, violated no federal constitu- rights tional Cox defendants. Hampshire, supra. State of New adopted Supreme The construction by the Hampshire Court of New is sound. I place would the same construction ordinance here for review.

Case Details

Case Name: Shuttlesworth v. City of Birmingham

Court Name: Alabama Court of Appeals

Date Published: Nov 2, 1965

Citation: 180 So. 2d 114

Court Abbreviation: Ala. Ct. App.