*1 163 24, 1973, nеwspaper page newspaper July story dated describ- front showing ing shooting photograph coverage, a television news both July 24, 1973, Faye photograph inflammatory Yoemans and a not of taking appellant opinion prejudice off the nature in our officer handcuffs a jury 29-30, police November photographs Other some four months station. later. State, Ala.App. 668, Mathis on the v. appeared page second continuation 52 296 So.2d 755, quashed 2 story. 732, page Exhibit No. was from cert. 292 Ala. 296 So.2d 25, opinion newspaper July 1973, (See concurring two of the dated 764 Justice placed dealing charge Bloodworth). Subsequent articles submit appellant. prominent Exhibit 3 was ted were less and in and page No. from support newspaper appel dated themselves 28, twelve October would not 1973, a reporting change showing that a motion for a lant’s motion without appel of venue had and set would have effect on been filed for hear- an adverse ing. page right impartial Exhibit 4 lant’s a No. was twen- fair trial. 206, ty-one State, Ala.App. report- dated November See Acoff v. 50 278 hearing (1973) that a be held So.2d 210 cases cited ing would the fol- therein. We, therefore, lowing Tuesday part on the motion and that find no error on the denying had been set the trial court tentatively trial for November motion for change of 1973. venue. have We made a careful review of the Here, as on motion for a new required by record as law and find no er- trial, as general proposition law, appellant. prejudicial ror for change motion is of venue addressed to court, the sound discretion of the trial Affirmed. ruling will not be disturbed absent All Judges concur. showing of abuse of that discretion. Cob State, ern v. 142 Ala. So.2d 869
(1962). The of newspaper introduction ar ticles in testimony concerning their con
tents
alone
support
insufficient
a mo
change
tion for a
of venue without
showing of the effect such articles would
State,
on the
have
venire. Beddow v.
Ala.App. 29,
; Aycock
(1956)
So.2d 175
State,
Ala.App.
v.
Joe In filing a change motion for pursuant venue to Title Code of § CITY BIRMINGHAM. OF upon
Alabama the burden was 6 Div. the triаl show court that he impartial could receive a fair and trial Appeals of Alabama. Court Criminal County prejudicial Houston due to news 6, 1975. Feb. coverage. Testimony by newspaper re reporter porter and concerning a television April 1, Rehearing Denied geographical news coverage sufficiently coverage area of did show coverage effect
what such news would opinion in our the venire and ruling of the insufficient to disturb the trial court. *2 ap- Sandefer, Birmingham, for
Virgil K. pellant. Walker, Birmingham,
William C. for the City Birmingham.
HARRIS, Judge.
Appellant was convicted the Record- er’s violating Birmingham’s Court for Sun- day closing appealed law and he Cir- cuit County. Court Jefferson complaint filed a a filed mo- demurrer, complaint thereupon, filed an amended quash and also filed tion City, follows: was sustained. The demurrer
“AMENDED COMPLAINT BIRMINGHAM, municipal- “CITY OF COUNTY IN THE corporation JEFFERSON THE CIRCUIT COURT OF PLAINTIFF " TENTH CIRCUIT VS. JUDICIAL SIMONETTI, CASE NO. JOE DEFENDANT Alabama, municipal corporation, and com- “Comes the Simonetti, within shopkeeper, druggist, plains merchant Joe July to-wit: of this beginning twelve months before *4 West, Avenue, Finley City Birmingham, at to-wit: and within the store, there store, did then and keep open on and did to-wit: grocery in duty, to employees contrary premises on four on have the more than as Birmingham City of 1964 General Code of violation of Section 36-56 the 14, 1940 Title words, language meaning Section it the embraces by exception provided Alabama, Recompiled as amended and Code of Alabama, Recompiled 1958. Appendix, 1940 Code of 1015(16), Section day WILLIAM C. WALKER “FILED This 6 IN OPEN COURT SWIFT, (Signed) April CLERK JULIAN Deputy By Jennings Clerk.” CIRCUIT COURT Duke which “(2) For that the offense with Appellant to filed amended motion reported as in charged the defendant is reference, quash incorporating, by the Alabama, Appx. Sec. the Code complaint, grounds original filed in 1015(16), vague and unenforceable grounds. de- added new He also filed a ‘employees’ or the that fails to define Complaint. In or- murrer to Amended performed by exempt may ap- duties that be understanding der better non-exempt employees employees. his respect pellant’s contentions with range of tes- quash and wide motion to upon For that Act “(3) said which think timony judge permitted, we the trial charge vague uncertain is based grounds it well to set forth all Legislature that ‘The in said Act states original quash com- motion to filed to the public is a neces- further finds that there grounds plaint as well as the additional sity purchase Sunday of mer- for the Complaint : motion to the Amended his usually chandise sold in stores necessity must met but and that defendant, Simonet- “Comes now the Joe as set out reasonable restrictions ti, and this Honorable Court moves placed There above should be thereon.’ Complaint, quash the Affidavit of provision permitting in Act him, is no said prosecution against basis of public grocer, to meet the order assigns the grounds Motion as of said need, employees number of to use the severally: following, separately and The con- satisfy this need.
needed to charged in “(1) For the offense trary appears in said Act. Complaint, is the viola- said Affidavit Act as written makes “(4) For that said county law which has
tion of a local Mainte- which is otherwise lawful. Birmingham. City of by the been enacted crews, inventory- By assigning, separately personnel, “(1) nance office sever- crews, ally, grounds Sunday. set out in the Motion etc. work Under Quash exempt Complaint em- said Act otherwise Affidavit of heretofore these ployees thereby as filed herein connection with the are treated Com- plaint resulting by Birmingham. arrest and filed performing an lawful Act on otherwise “(2) has en- Sunday. gaged discriminatory enforcement of “(5) exempt For that said Act does not Title Section 420 Code of Ala- business their owners of the nor bama, amended, as thereby depriving the families inasmuch there is no defini- equal protection guaranteed defendant of ‘employee’ tion of in said Act. to him the of the Unit- Constitutions ed States America and State of “(6) purpose of the Act is defeated Alabama. employee said limitation set out in Act, thereby creating a situation where “(3) The Sheriff of County, Jefferson public purchase groceries need Alabama, has been engaged discrimi- pros- cannot be achieved without natory enforcement of Title Section ecution under said Act. and 422 of the 1940 Code of Al- amended, recompiled abama “(7) phrase in For thаt said Act in thereby depriving equal defendant purchase Section 1 ' —To protection guaranteed to him the Con- goods usually normally gro- sold in *5 of the stitutions United of Ameri- States cery subject stores to reasonable restric- ca and the of State of Alabama. employees tions on number of may employed selling in such stores “(4) Birmingham That the City of act- am- goods Sunday’ vague such and through ing Department prior its Police biguous that it is not clear whether defendant, to the arrest of this and since employee is limited em- restriction then policy has followed a of selective ployees of actually engaged in the sale 14, 420, enforcement of Title Sections groceries Sundays ex- or whether it 421, 422 Code and of the 1940 of Ala- selling employees engaged tends to recompiled amended, bama as 1958 security groceries as thereby depriving of equal the defendant crews, guards, inventory maintenance protection guaranteed to him the Con- crews, crews, up person- clean and office of the stitutions United of Ameri- States nel, ordinarily whom number of would ca and State of Alabama. Sunday. work on City “(5) Birmingham of has en- “(8) For that said Act does make gaged discriminatory enforcement of provision changes for crew during 420, 14, Title Section 421 and 422 of the day whereby employees com- who have recompiled of 1940 Code Alabama pleted their while work out check amended, prior 1958 to and as both since employees begin duty. new their With- defendant, thereby the arrest of this de- Act, provision, out this under said priving the defendant of his constitution- temporarily store would to close have rights guaranteed al as himto changes annoyance its much to the crew Constitutions of the of United States who, Act, general public of the under the and the America State of Alabama. Sunday. it is to serve on “(6) City Birmingham For of grounds set de- “For the out hereinabove 420, contrary 14, to Title 421 Sections prays fendant that this Honorable Court of and 422 Alabama 1940Code of as Complaint, quash will of Affidavit amended, prior has and since the both prosecution. basis of his engaged arrest this in a of defendant [*] ^ [*] >{C }|í consрiracy with its lessees and conces- 168 City adopt Ordinance, an Council con- whereby said lessees con-
sionaries 14, shop- trary provisions of Title Sec- cessionaries who are merchants 420, tions 421 and 422 keepers defendant of 1940 Code the same as this recompiled in operate immunity of Alabama permitted with from 1958 contrary forego- amended and to the laws for violations of the whereby immunity City Birming- State of Alabama ing while said statutes its granted could be lessees and con- ham has enforced said statutes said Ti- defendant, violating cessionaires who were agent, his servants tle 421 and Said Sections employees. Ordinance Ordinance Number 73-17 Birmingham “(7) City For that approved Mayor City by the knowledge with actual violations Birmingham February shopkeepers located merchants or other City Birmingham For that Birmingham, of Title “(11) within the acting by through 421 and Police Chief Sections Department the Police recompiled in Code of Alabama Birmingham amended, arrested has failed and refused for viola- to enforce tion of said Title fail or refuse Sections continues to fair, only persons equal foreign nondis- extrac- in a said statutes agents, tion or servants or criminatory basis. foreign permitting extraction while of Police of “(8) For that the Chief nationality groups to violate said statutes having Birmingham receiv- City of after immunity prosecution by of Title of violations ed notice written City Birmingham.” by mer- 420, 421 and 422 Sections comprises The record in this case four City of shopkeepers in the chants pages volumes and contains about 800 failed or refused has testimony, and exhibits. This case motions said statutes the enforcement of cause presents age-old ever-recurring fair, impartial equal, and nondiscrim- problems associated with troublesome
inatory manner. trying to the “blue laws” on a non- enforce *6 discriminatory comply as to with basis so City of "(9) For that Equal the Due Process and Protection through its written acting its lessees clauses of the Fourteenth Amendment les- required said with them and leases the Constitution of the United States. shopkeepers merchants or sees who are Sunday in of open violation to rеmain background, As historical we cite The 420, 14, and 422 of the Title Sections Encyclopedia for defini- New Britannica recompiled in Code of Alabama history: tion of the “blue laws” U. S. amended, said 1958, and has afforded as term for colonial laws for- (a) general “a immunity from lessees Sunday. The bidding secular activities on the Police by requiring violations an ac- originally name derived from was Department not to make arrests. published in printed paper on blue count regula- to list the purporting Sabbath “(10) City For that the Haven, Connecticut. Strictest tions at New its conspiracy with of its furtherance communities, Puritan, Bible-oriented to af- order or concessionaries lessees regular usually forbade work on them, laws blue them, attempt to afford or ford selling, travelling, any buying, Sunday, plus of Title immunity from violation further entertainment, some sports. To or public 422 of the 1940 421 and Sections existed in all laws degree, similar recompiled in Alabama Code of lapsed general, they American colonies. amended, through its Council did Independence, but for War the re- aftеr the U.S. Mayor and at its through persisted in modern has influence Attorney their said quest of its cause
liftQ complaint public activity fore whom made, times wherever is twenty supplied). (Emphasis dollars.” (Emphasis regulated.” supplied). is Alabama was admitted into the Before Now we have Title Section Code States, Digest Union of Toulmin of Alabama 1940. compiled by appointment, and un- The above section is so broad and all in- Assembly authority der General clusive as to what acts permitted Mississippi Territory. We learn prohibited what are Sundays that one reading Digest leg- from a that the would think nothing more need be said. representa- islative council and house of But Legislature, wisdom, in its saw fit Territory tives of that enacted in 1803 that pass Act No. General Acts of Ala- worldly employment, “no business or ordi- 1966, Special Session, bama page ef- necessity nary servile works or (works 15,1966, fective November as follows: charity shooting, excepted), sporting, no hunting, racing, fiddling, or other music (a) “Section 1. This Act apply shall merriment, any for the sake of nor kind of all counties having pоpulation playing, sports, pastimes, diversions, or 500,000 or more according to the last or done, performed shall be practiced, by or any succeeding federal census. any person persons Territory or within this sabbath, on the day Christian or first (b) Declaration Legislative finding week, commonly Sunday.” called is policy: It pub- maintenance of the provided further that “no merchant or lic health is of vital importance shopkeeper person, general keep or other shall welfare of the State and open store, dispose any people. or wares or This is particularly true where merchandise, goods or chattels first there are large popu- concentrations day week, commonly called protection lation. For the pub- or sell or barter the act same.” The fur- lic health general welfare it carter, provides wagoner, ther “that no deemed day essential that one be set drayman, drover, butcher, or of his aside day each week as a of rest and re- slaves ply or servants shаll or travel laxation counties which this Act wagon, dray, applies. his cart or or shall load or This can accomplished best be wares, any goods, unload merchandise the enforcement thereof can best be produce, cattle, policed sheep or drive setting swine aside which any part Territory, day generally on the first recognized and observed as Sunday.” day of the week called Toulmin’s of rest. Section 420 Title 14 Code Digest, pp. Alabama, 1940, amended, 216-217. has made unlawful performance of la- *7 Digest The Toulmin inwas full force bor and other Sunday activities on and beginning and effect with the of statehood. provided has penalties for the violation undergone many changes, It has modifica- subject thereof to certain enumerated tions and The first restatements. time that exceptions by which Leg- are deemed “druggists” excepted provi- from the islature to be necessary. reasonable and Sunday ap- sions of the Closing Laws The Legislature further finds and de- peared in the Code of Section clares that in enjoy dаy order to such a providing: of public rest and relaxation that “Any person shooting, engages who given should be right as an addition- hunting, gaming, racing, any exception or in al to pur- said 420 to Section diversion, sport, pastime, Sunday, or on Sunday chase on goods usually and nor- merchant, or any shop-keeper, except mally or in grocery subject sold stores to druggist, keeps store, open who or dis- reasonable restrictions on the number of poses any goods of employees on for each that employed be in such fined, by justice offense must be any be- selling goods Sunday. stores such on It September “Approved 1966. Legislature finding is further the num- on that a reasonable restriction “Time: 6:21 P.M.” permit employees to to would be ber open Sunday the sale of on for remain Pursuant this Act Bir- only passed that have goods mingham such those stores a “reference ordinance” duty employees words, on at language no more than four to embrace the and mean- Legisla- Sunday. The any ing one time on of Title Code of Ala- Section public еxception is a pro- further finds there ture that bama included Sunday Appendix, necessity purchase 1015(16), for the on vided Section normally sold Alabama, Recompiled usually merchandise Code of 1958. necessity preamble grocery provides: stores this to Act No. be met but that reasonable restric- must permit grocery “To authorize and stores placed be tions set out above should open Sunday in to remain each Coun- on thereon. population ty having State 500,000 according or to the more last or any It for shall be lawful “Section census, provided any succeeding federal open Sunday store to grocery remain n any grocery such store does County having a in the State in each duty in such than four em- stores more 500,000 according population of or more any ployees at one time on any cen- succeeding last federal provide licensing grocery such grocery store providing that such sus issuing stores the license officer of store duty not have on in such more does County.” such any time on than four one gro- Sundаy; provided each such brings This us to the special cery li- store shall first obtain appeal conviction of Simonetti and his Joe operate Sunday from the li- cense Appellant from such was is- conviction. County. issuing such cense officer of operate sued a license grocery store such issuing The license officer and was also issued a license only to such County shall issue a license operate drug place store at the same grocery or outlets as individual stores dispute. business. This without only pay license fee of shall $25 or outlets individual stores existing Aside from at the the facts time community arrest, determined to in each as are of his we are confronted with the required by public convenience be constitutional issue as to whether his con- shall necessity. All license fees Equal offends viction Protection general of such Coun- paid into fund Clause of Constitution United ty- States. pertinent case, all times At to this there parts All or local “Section policy by no fixed or settled law hereby re- conflict herewith are
lаws enforcement officers Bir- pealed. mingham respect to the enforcement city. of the “blue laws” chief clause, provision any If “Section 4. police testified that acted on com- act shall be held invalid section plaints only. sum, he testified that the unenforceable Court of com- *8 city simply manpower did not the to petent jurisdiction holding shall Sunday regard- enforce the violations. He any unenforceable invalidate or render Sunday ed violations to be “victimless” clause, provisions or section there- other Department crimes. The Police acted on of. priorities and priority the cases involved persons proper- This shall become ef- crimes and the “Section 5. Act the ty rights Captain Chilcoat, fective November citizens. open operating Sunday the same Squad, on testified Chief of the Vice Sunday did not any was arrested but he policy initiate not their to was Farmers if They acted visit the Market to see on own. law violations their compliance were in with the “four-em- only. complaints on ployee” In to this wit- ordinance. addition operated a Simonetti Mr. Joe ness, he police testified that chief Southway Discount Center store known as open knew the on Farmers Market was West, Avenue, on Finley located at 342 Sundays any and that he had never issued City July operator any orders for the arrest of at the Alabama, He at the time he was arrested. Market. until 2 from 9 had shifts—one A.M. two P.M., until 6 from P.M. other City The entered into about arresting officer arrived P.M. The numerous agreements written lease op- registers in and found five cash P.M. operate Sundays. lessees to businesses on registers were Four of cash eration. op- City The knew these businesses would the fifth one being operated by women and Sundays. goes saying on It without erate He being operated by appellant’s son. was any police that no officer was to arrest young people sacking groceries found two employees lessee or the lessee for marking produce prices a man operating Sundays. on produce produce man was section. Thе The had a with the Dobbs lease by appellant. appel- employed He was Houses, operate Shop to at the Inc. Gift just lant’s uncle and came to retired Municipal Airport. for This lease was arresting The store on his own volition. $24,533.15 payable due the date the was not in the store more than ten officer executed, plus percentage lease was he one line minutes and before he left saw operation gross receipts of the from to another being directed customers monthly business on a basis. The lessee only check-out counter so as leave four required carry liability pol- public registers operation including cash $150,000 icy $50,000 person, for one for — operated one He did by appellant’s son. accident, $25,000 property dam- one morning for the shift to check not wait age. money receipts so that their at the office new could take over with shift oper- leases into to Similar were entered money amount of allowed each cashier Jimmy Mor- ate miniature railroad change make for the customers. Zoo; Courses; gan Municipal Food Golf zoo, Concessions at and at Vulcan arresting officer admitted that he Park, ini- but at different amounts for the complaint ap- investigate did not have a percentages on tial lease and at different just pellant’s place of but that he business gross receipts. came on his own which was in violation of police depart- policy the established Bowling operate were centers allowed to only violations investigate ment Sundays sundry various complaints. pleasure activities for the public permitted to conducted on were A feet— short distance—less than 300 Sundays. Southway Discount was the Center having twenty-five Farmers Market some short, Birmingham has a vegetables of all stalls where kinds pattern enforcing of not the “blue laws” general public sold and were the doubt, due, non-discriminatory basis no appellant’s sold in same kind items manpower in the Police shortage to a testimony There was that more store. also Department. duty at the than were on four Cоunty consci- The arrest- stalls in the Farmers Sheriff Market. Jefferson entiously ing Market was undertook to enforce officer knew the Farmers *9 against the Department lice as a caution with closing in 1972-73 and met laws blue discriminatory Company in enforcement Funiture a lawsuit Lawhon Court for the District laws. the United States Alabama, Southern District
Northern including drugstores, large chain Several Findings of Judge Pointer’s Division. Drug Liggett Drug Company, Lane Eckerd Law, he note took Fact and Conclusions rented Company, Copeland Drugs which operat- same of some of the establishments op- B., open space Big from the ing that we have mentioned interference erating Sundays without opinion. went on to Judge this Pointer Department Birmingham Police from the say: pertinent prosecution. to this all times then, becomes, question “The to order non-drug sold Typical of the items case, plaintiff make out the must drug Sundays are the chain stores these dis- prove sort of malicious intentional by the man- following items as testified to enforcement, is it crimination Company: ager Drug Eckerd provеs plaintiff sufficient if the Folding Chairs justification, whatever the reason Paint fact it out nevertheless actual works Hoses Garden invidiously him or unequally and toward Sprinklers Oscillating it. I it is the And if think latter. Thermo Chests Department, I’m convinced Sheriff’s Kodaks, Cameras evidence, fully under the cannot enforce Soap Pads Wool Steel type throughout of law entire Portable Electric Fans basis, county completely then equal Sanyo Refrigerators permitted its not be to let should Hair Electric Setters particu- as against forces directed one be Bread Loaf unequally, that company lar in effect Pepsis cartons be, again not —in what it out turns eight Pepsi Bottled, forty ounce harm, — simply but intent to Bags Diamond Tea Red there result of the fact that the sheer Milk Ice items, important are other much more Milk Ice Half Gallon Containers Department could be that the Sheriff’s Dr. Scholl’s Exercise Sandals dealing doing ultimately than Foil Aluminum involving crime number victimless Film Polaroid patrol type investiga- in this cars * * Film * Kodak you have Either tive work. Tennis Shoes you than got equally it mоre do Beach Balls Inflatable it.” done ... or not do Rings Inflatable Swim said, “It be Judge Pointer further Air Inflatable Mattresses something that Legislature do that the will Riders Inflatable Surf problem different make will effect Sets Badminton very very difficult trying enforce this Cushions Car statute.” Freezers Ice Cream Electric Chlorox very important “I think it is Chlorox Liquid at his of- would be free Sheriff effect Formula things fice, on with get free Red Diamond Coffee important more
ultimately Perfumes enforcing law.” blue (than) in Blenders Electric Toasters Electric could well Judge Pointer’s conclusions Dryers Hair Electric Birmingham Po- directed have been
173 Electric exception Skillets within the must a bona fide be druggist Electric Ovens engaged and to be bona fide Broilers keeping open a drug store.” Fishing Rods operators None of the Fishing Lines large these chain drugstores ar- were ever Lures rested operating open stores or even Hooks they warned that violating were the blue Sinkers Many laws. of the articles sold in the Bobbers large chain drugstores appel- were sold Tackle Boxes drugstore. lant’s There was some evidence Magazines that drug purchased appellant’s items Paperback Books drugstore co-mingled gro- were with the Greeting Cards cery items purchased that customers had Birthday Cards passing through the check-out Cigarette Lighters counters where registers the cash were in Cigarettes operation. Tobacco Products Pipes 356, In Hopkins, Yick v.Wo 6 U.S. Pipe Lighters Supreme S.Ct. L.Ed. Pipe Cleaners Court held: Flea Collars “Though the law itself be fair on its Powder Stanback face, impartial appearance, yet, if gallon Ice Cream—Half containers applied it is by public and administered Popsickles 12-pack package — authority eye with an evil and an une- 6-pack Ice package Cream Sandwiches— hand, qual practically as so to make un- Deodorant just illegal discriminations between Dog Hot Buns persons circumstances, in similar materi- Tea and Coffee rights, al to their equal jus- the denial of readily apparent prohibition It is is still peru- from a tice within the mere sal of the above constitution.” еnumerated articles for sale and which are Sundays sold on consti- Illinois, Griffin v. 351 U.S. 76 S. tute large these chain drugstores nothing Supreme Ct. 100 L.Ed. Court department more or less than glorified said, “A nondiscriminatory law on its face operating stores guise legiti- under the grossly discriminatory opera in its druggists mate simply li- because tion.” druggists censed under permit- the statute operations ting Sunday. All recognize the cases that a heavy burden rests on the defendant to es fifty years ago Supreme Over Court conscious, tablish intentional discrimina parte Stollenwerck, of Alabama in Ex tion, but if sustaining successful in Ala. in treating 78 So. this same burden, the defendant will be to a entitled problem, said: dismissal of the as a matter of course, statute, others, “Of like all law. From developed the facts as cannot be evaded pretense a mere trial, we hold fully carried subterfuge; pretend one cannot to be a that burden. druggist keep open and to an drug store when in fact and truth he is In East Coast Lumber Terminal v. Town druggist not a and is keeping Babylon, Cir., 174 F.2d Judge open store, drug open but is keeping Learned Hand wrote: “It has indeed been store for purpose selling the law for sixty years over (14) that goods or person merchandise. The to be Amendment unequal covers the enforce- laws, Request investigation by for an valid enforce
ment of as well Department Hop of Bir- laws”, Police ment of invalid Yick Wo Alabama, Sunday opera- kins, mingham, supra. *11 tions of Mr. Simonetti.” Joe Wakefield, Sunday Lake Iron Co. v. 350-352, us reflects that when 62 The record before 38 L.Ed. 247 U.S. S.Ct. Department pur- call Supreme “The citizens would the Police the Court said: complain Sunday violations the equal protection about pose of the clause of the on a only made such calls was to ev- record of Fourteenth Amendment is to secure pad handy name of the ery jurisdiction scratch and the person within the state’s As a matter of arbitrary caller was not recorded. intentional discrimi- anonymous the nation, express most of were by fact callers whether occasioned follow-up investigation there was improper exe- arid terms a statute or its of if made, pаd agents.” and no arrest the scratch found through duly cution constituted way to the waste basket. record its of The Chief Police testified he arrests only further reflects that four for complaint ap- personally received a about Sunday year violations made were pellant’s place of of business from one the appellant. including City though the he members of Council Sunday closing have been laws assailed the of the council- could not recall name years grounds on constitutional for man. no Commenting have met with success. Sunday constitutionality laws City All Council of the members Warren, general, speaking Chief City Birmingham affidavits of filed Justice Court, Maryland, for McGowan language received in (which identical 6 L.Ed.2d 366 U.S. S.Ct. during their evidence stipulation) said: respective terms never of office “I have communicated, forwarded, delivered, or or present purpose effect of “The most May- either had forwarded delivered to Sunday provide (the laws) of is to Per- George W. Seibels or Chief James citizens; day of uniform for all rest Birming-
sons, City of Policе Chief for the partic- Sunday, day that this is of fact ham, any representative of or to significance ular the dominant Chris- for Depart- Mayor’s office or of the Police sects, tian does not bar State from Alabama, Birmingham, of ment of say achieving goals. To secular any or to other member of the Council prescribe cannot as a States ariy: purposes (public day of rest for these health, welfare, solely recreation) Complaint with reference to South- 1. ago had because centuries such laws Inc., Center, Finley
way Discount genesis give religion their would Avenue, Southwest, Ala- interpretation hostility constitutional Sunday. bama, operating a business on public than rather one of welfare separation church and mere State.’’ Complaint with to Mr. 2. reference Joe Simonetti, Avenue, Finley South- Compulsion by accept law Alabama, operat- west, Birmingham, any any practice of creed or form ance Sunday. ing a business worship strictly forbidden. The free religious opinions to hold beliefs investigation dom Request for an Legislature Bir- cannot com Department City of is absolute. Police judicial church attendance and fiats Alabama, pel busi- mingham, pews Discount fill the denominations. operations Southway cannot ness Avenue, Religion is a matter of conscience between Center, Inc., South- Finley west, Birmingham, man God. Alabama. uphold many employees more duty are sworn
Police officers on Sun- jurisdic day operation than within their single super enforce all laws of a laws, when market tion, blue that would including duty have on more only on com than acting the four adopt policy allowable under by neutral and Act issued plaints, not warrants probable upon magistrates based detached argument “While this is not without be
cause, unwittingly police officers basis, some the fact remains that should anonymous callers “agents” come one super operate market in a dis investigations and arrests making competitive operation nature of the man appalling criminatory, shocking and the grocery store business would neces- Birming adopted by the policy ner. The *12 sarily compel many, probably most, and “initiating” Department in ham Police not of super the market grocery op- stores to is a investigations Sunday violations of erate Sunday. very fact, This we complete sworn duties of their abdication think, supports the validity of the dis- They permitted law enforcement men. as tinction made in Act 431 types as to the appel competition with businesses direct of grocery permitted operate stores to open for business on Sun lant to remain Sunday.” and, thereby, justice days go unwhipped of court to be hauling while into The trouble we find with Act 431 is that great and A number fined incarcerated. it is not clear as to what is meant the Sunday operations these were under of “only term those stores that have no more auspices of approval and the the avowed than four duty any one as witness the Council Sunday”, time on applied in the instant many they passed authorize ordinances to case. execution written leases for the At appellant’s son, the time of his arrest opеrations. years who was age, operating was registers one of the checking cash custom- concluding find no trouble in We purchases. er’s appellant’s Present was re- appellant’s rights that under constitutional tired uncle payroll. who not on the Equal the Four Protection Clause of engaged He was in marking prices in the blatantly vio teenth Amendment have been produce department voluntary on a purely lated and his conviction that arrest and basis. Present also were children other brought were discrimi about invidious appellant though is not evidence clear unequal nation in the of the enforcement whether engaged any activi- City Birmingham. blue laws of To pertaining operation ties gro- to the of the allow this would conviction to stand be a cery phrase store. Does the “four em- miscarriage grave justice would be and ployees” include owner and members of wrong unjust. family his just happen present who to be But light more should be said in the of when the arresting officer entered the case v. very Caiola store at thе morning moment that the 288 Ala. upholding winding up 262 So.2d shift was its duties to clear the constitutionality 431, 1966, way Special of Act evening for the shift to take over? Session, page which is “four change em Common sense dictates that ployees” Act as relates shifts to stores takes than more ten minutes that the keeping open Sunday. quote store We officer said he was Does the store. from “employee” this case: word clean-up man, include a bag boys, security guards? appellant argues many
“Counsel for part “employee” convenience stores are of a vague word is and un- chain, operate permitting them to speculation certain and not should rest would in effect allow the chain and doubt in criminal statute where a not always it is been that has liberty are involved. If
man’s freedom
charge against a defendant
enough to
(Caiola
v.
act, though
face
valid on
justly inferen-
legal
mere
conclusion
be made
supra)
City Birmingham,
indict-
out in the
facts not set
enforceable,
amend-
tial from
it
should
clear and
Almeida, 24
States
glaring
ment. United
Legislature to remove
ed
775,776,
14,433.
urge
pages
No.
Fed.Cas.
invite and
expressly
We
ambiguities.
Sun-
rewrite Alabama’s
Legislature
“
ac-
properly
‘In
inform
order
day closing laws.
and cause
cused
the “nature
accusation,”
meaning
within
Gayden v.
excerpts
following
com-
rules of the
501, spells
out
constitution
State,
80 So.2d
262 Ala.
thought
make
law, will
mon
little
language
far
saying in
better
what we
all
only
legal, but to
plain,
to the
employ:
than
canwe
he had been denied
333
L.Ed. 644. ‘The
a
by
principle of
more
be heard
constitutional
United States.
Amendment
by
tution of
of the
of the accusation’
tology, but one of
phasis in our
prosecutions,
mandates
our Bill of
“We are
* * *
“Indictments
criminal
our
federal.’ Cole
the
U.S.
true nature of
charge,
clearly
Federal courts
specific charge, and a chance to
requirements
j|c
in trial of
to demand
further restrained
1901'—is not
proceeding
Rights.
a
to the Constitution
established than
must
our
if
procedural
rights cases
[*]
The
desired,
petitioner
organic law. The em-
now
accused has
v. State of
always
68 S.Ct.
the nature
the cornerstоnes of
**
following
‘that
[*]
are
in
§
every accused in
meaningless tau-
*13
6
all
issues
are
the
due
charge
pertinent:
in all criminal
real
conform
of
*
charged
courts,
514, 517,
[*]
in this case
among
that notice
Fourteenth
the Consti-
process
utterances
Arkansas,
notice of
and cause
raised
against
of the
[*]
state
right
‘No
92
by
is
particularity
sitrprised by
plied.)
of the
left
proof;
series
surprise
haps
which
which
tion to enable him
or series
persons, things, and other details.
be stated
to rest his
56 F.
that he is
all the elements of
accused
but the
larity
stand,
so
his
educated, minds,
not
indictment,
the
scantily
he must be
and when
alleged
United States
must
particular
life, are
can
89.”
acts,
a sufficient
only
with
charged
indictment relates as to
identify the transaction
defense
acts,
and fullness
proofs
be
receive
with the
informed
the
clearness
offense.’
at
avoided
at least
but
nature of the
entirely
his
act
the offense be
stake,
upon
on the
prepared
sufficient informa-
degree
reasonably under-
liberty,
or acts
hazard
a
so
Potter, 1
he
by
also
certain
to cause
different
(Italics
part
far
is
descriptiоn
reasonable
hypothesis
they must
only must
certainty,
with
not to be
and
touching
offense,
particu-
as such
act or
stated
place,
being
Cir.,
sup-
per-
The
him
act
his
universally
him,
first
most
rec-
and
431, supra,
first
Act
had been
If
requirement
process
ognized
of due
if it
presented
to determine
Court
* *
Warden,
O’Grady,
Smith v.
*.’
standards,
would
met constitutional
we
61 S.Ct.
U.S.
put
find
the “four
have been hard
full un-
intelligent and
L.Ed. 859. ‘An
employees”
ra
based on a
restriction was
derstanding
charge
accused of the
valid classification to reach the
tional and
requirement
against
of due
him a first
Legislative
declaration
sought
end
States,
process.’ Bergen
v. United
policy
welfare
pertaining
Cir.,
F.2d
peo
public health
and
of the State
its
ill-considered,
ple.
the Alabama Su
loose
If the decision of
“Regardless of some
cases,
grounds”,
“moral
preme
Court rests on
expressions
law
some
TYSON,
DeCARLO,
concur;
best,
JJ.,
do
then we
at
tenuous
which
TYSON,
opinion.
J.,
files
restriction
limitation or
a
believe that
employees on
five, six,
eight
or even
seven
CATES,
BOOKOUT,
J.,
J.,
P.
dis-
be
Sunday would
time
duty
any one
at
sent.
failure
corruрtible. The
morally
em-
“four
clearly define the
Legislature to
TYSON, Judge (concurring).
vague,
act
renders the
ployees” restriction
unen-
indefinite,
uncertain,
unworkable
proof
offered
of Bir-
vexatious
resorting to
without
forceable
mingham
support
complaint
who
those
prosecutions
arrests
is,
my judgment,
very diffi-
a
and enforce
try
unwilling
tenuous at
in question
best. The officer
nondiscriminatory basis.
cult law on
came
while
afternoon
change”
“shift
progress.
was in
One line
laws, is
law,
all
that if
We believe
closed,
being
of customers was
and the
dispensed
justice is
equally
enforced
other customers directed to
lines
under
hand,
nondiscrimin-
and on a
with an even
persons.
did not
officer
deter-
maintain
atory basis,
will
all citizens
sufficiently,
my judgment,
mine
who
our
respect for
lofty
high
regard
“employees”
were and were not
in the in-
under
as administered
system
Court
stant cause.
in this
it can’t' be done
If
Constitution.
all.
significant
fashion,
Equally
it must not
done
then
be
are the admissions on
part
“of
presumption that
It
violent
law
selective
to a
enforcement” due
short-
ignorant
supposed tо be
courts are
age
power.
of man
The details of this are
knows;
every-
everybody
that which
comprehensive
set forth in the
opinion of
go almost
body
knows one can
in this State
my distinguished brother,
Harris,
Judge
Sundays and
*14
anywhere
in this State
join
this
I
upon
cause.
Leg-
his call
We
any article one
desire.
purchase
islature of Alabama to further define the
presumption
the knowl-
indulge
with
this
meaning of
“employee”
terms
Sunday closing laws are
edge that the
employees”
“four
allowable under Act 431.
uniformly enforced.
See Caiola v.
486,
Ala.
bowling wrongs I a zoo, can’t see how two make city Vulcan municipal airport, enough right. city a How- Because doesn’t municipal golf courses. Park policemen go showing of should admitted law breakers ever, no substantial there was
179
this
I
city winks at
On
record
cannot see the malicious
that the
The fact
free?
liberty
and uneven
denounced in
not confer
enforcement
does
concessionaires
356,
Hopkins,
Yick
law.
Wo v.
S.Ct.
break a State
Simonetti
U.S.
on others to
1064,
basic blue
may occur when respectfully I dissent. a test tionality the law is doubt Cranston, “State v. 59 Idaho case needed. (1938): P.2d 682 *16 justified also enforcement
Such unwise, de- “If the examples sought closing order to law is are when violators, part antiquated, bona fide unenforced as of a or unenforceable ter other non-judicial (all questions) legisla- so that pattern general enforcement Only place go ture is the for those are general compliance will follow. who discriminates dissatisfied and there disclose their enforcement when any appeals grievances. prosecuted, without More law- against persons making en- bodies for amendments re- to follow up intention many others, may peals by what deemed to be a constitu- against forcement urgency ineffective or bad laws less be found. tional violation modify upon or hold invalid been violating courts convicted of an ordinance long way toward go such laws would that made it a misdemeanor to maintain a orderly acceptable laundry administration without a license from a board of supervisors. of all laws.” Although Supreme the U. S. Court did ON REHEARING void, not hold the statute it did condemn Application rehearing overruled. application its and held the board had dis- against criminated petitioner and other people similarly by situated denying them HARRIS, DeCARLO, JJ., TYSON permits granting while them to others. concur.
The Wo, ordinance in supra, Yick re- quired the CATES, BOOKOUT, exercise of J., some discrimination J., P. dis- by licensing authority, and the Su- sent.
preme supervisors Court held that the had abused that discretion. DeCARLO, Judge (concurring) : The My writing sought learned ordinance brother for ma to be enforced against Simonetti, jority contrary find City of this court did not of Birming- ham, leaves no Caiola v. 288 Ala. room for an exercise 602; discretion via Reynolds Mc So.2d v. selective enforcement. 89; Fadyen, 259 Ala. 66 So.2d Lane We have seen the testimony presented McFadyen, 259 Ala. 66 So.2d that the law was generally enforced Langan Winn-Dixie, Inc., v. Mobile but enforced complaint on a only. basis Ala. 173 So.2d 573. He found dis Admittedly, appellant’s arrest did not even crimination on behalf of the local authori result complaint. from a ties in unequal applicatiоn their law. majority opinion points The Hence, to the case we have a similar discretion Company, Lawhon Furniture being City, abused when arbi- John County, Judge wherein Federal trarily administer an ordinance Jefferson without enjoined Sam Pointer Coun- general scheme of enforcement. Jefferson ty Department initiating Sheriff’s ar- A serious or heinous crime is not in- rests on its own the furniture com- volved here. isWhat involved is a victim- pany. crime, less resulting from a violation of facts Lawhon matter are not City’s Sunday Closing Law. Simonetti persuasive as those involved here. Si- was engaged in a lawful business monetti’s arrest did not result from a com- just petitioner Wo, supra, in Yick plaint, solely but singled because an officer engaged was in laundering. There is a him attempt compli- out. Lawhon no distinction between extending protection ance with the Blue Law was from discriminatory appel- enforcement to shown. lant extending it to obviously those vi- olating drug our liquor laws. prosecution,
To avoid only Simonetti’s recourse would have been to close the store City’s conclusiоn that action change until the shift completed. I must be inescapable even-handed seems don’t legislature believe the intended for though right there is no city violate this law to be stringent enforced such a ordinance, there a right equal treat manner. ment Coving enforcement. *17 Hopkins, Yick Wo v. ton Gausepohl, 118 U.S. v. Ky. 62 S.W.2d S.Ct. petitioner 30 L.Ed. had per enforcement selective agree We impermissible, constitutionally se is selective enforcement
however, when without person prosecute a designed to enforcement, then general any intention Daw’s People v. Utica a violation. it is 12, 225 N.Y.S.2d Co., A.D.2d Drug implies discrimi- enforcement Selective over- It cannot natory enforcement. would acquittal Simonetti looked conviction, enforce- where a future not bar un- non-discriminatory basis on a ment dertaken. intimate opinion did majority unconstitu- Closing Law was should this ordinance it find nor did tional because not be enforced contrary, laxity. On of desuetude of the application uneven criticized law. holding majority question,
Without interpretation definitive invited a en- and a legislature law our City— by the ordinance forcement more. nothing
STATE.
Sam W. lant.