Shuttlesworth v Birmingham AL Petition for Writ of Certiorari

    IN TH E

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1964,

No,

FRED L. SH U TTLE S W O R TH , 
Petitioner,

vs,
C ITY  OF BIRMINGHAM,

Respondent.

On W rit of Certiorari to the Court of Appeals of Alabama,

BRIEF
On Behalf of Respondent to Petition for 

Writ of Certiorari.

W, C. WALKER,
EARL McBEE,

Birmingham, Alabama,
Attorneys for Respondent.

St. Louis La w  F e in tin g  Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page

Citation to opinion below ........................................ 1
Statement in opposition to jurisdiction of the Court . . 1

Statement .....................   -
Statement in opposition to questions presented . . . .  4

Constitutional and statutory provisions involved . . . .  4

Argument ............................................................................  5

Oases Cited.

Bouie v. Columbia, . . .  U. S. . . . ,  12 L. Ed. 894 
(1964) .............................................................................15,16

Drummond v. State, 37 Ala. App. 308, 67 So. 2nd
280 ................................................................................... 6

Garner v. State of Louisiana, 82 Sup. Ct. 248, 368 
IT. S. 157 ..........................................................................  14

Inland Power and Light Company v. Grieger, 91 F. 2d 
811 ...................................................................................  6

Phifer v. City of Birmingham, . . . Alabama App. .. .,
160 So. 2d 898 .................................................12,14,15,16

Philyaw v. City of Birmingham, 36 Ala. App. 112, 54 
So. 2d 6 1 9 ................................................................  15

State v. Lucas, Miss., 221 Miss. 538, 73 So. 2d 158 . . . .  8
State v. Taylor, 119 A. 2d 36, 38 N. J. Super. 6 .......... 11

Statutes Cited.

Constitution of the United States, Fourteenth Amend­
ment ............................................................................... 4. 6



11

General City Code of Birmingham:
Section 1142 ....................... .......................... 2. 4, 5, 8,13
Section 1230 ................................. .............. ..4,16
Section 1231 .................... ...2, 4, 5, 8,12,13,14,15,16

Textbooks Cited.

27 A. dur. Section 57, p. 623 ........................... 13
22 Corpus Juris Secundum, Section 24 (2), p. 67 . . . .  14



SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1964,

No.

FRED L. S H U TTLE SW O R TH , 
Petitioner, 

vs.
C ITY OF BIRMINGHAM,

Respondent.

On Writ of Certiorari to the Court of Appeals of Alabama,

BRIEF
On Behalf of Respondent to Petition for 

Writ of Certiorari.

CITATION TO OPINION BELOW.

The opinion of the Alabama Court of Appeals is reported 
at . . .  Ala. App. . . . ,  161 So. 2d 796, and is set forth 
in the appendix to petitioner’s brief and application for 
writ of certiorari at appendix page la.

STATEMENT IN OPPOSITION TO JURISDICTION 
OF THE COURT.

Petitioner has not been deprived of rights, privileges, 
and immunities secured by the Constitution of the United
States.



STATEMENT.

As set forth in petitioner’s statement (p. 4), the pe­
titioner was charged and convicted below for violation 
of Sections 1142 (as amended by Ordinance No. 1436-F) 
and 1231 of the General City Code of Birmingham.

The complaint charging petitioner was framed in two 
counts as set out in petitioner’s statement (p. 4). Count- 
one complained that the petitioner, as part- of a group, 
blocked the free passage over a sidewalk in the City of 
Birmingham. Count Two complained that the petitioner 
failed to obey a lawful order, signal or direction of a 
police officer.

The following facts were established by the evidence 
introduced in the trial court. On April 4, 1962, at about 
10:30 A. M., Officer B-obert E. Byars, Jr., observed the 
petitioner,, along with James Phifer and three or four 
other people walking South on 19th Street toward 2nd 
Avenue, North, Birmingham, Alabama (R. 17, 20). Officer 
Byars then entered Newberry’s- Department Store at its 
alley entrance and walked to the front of the store at 
19th Street and 2nd Avenue (R. 17, 18). When he got 
to the front entrance he saw the petitioner standing in 
a group of ten or twelve people (R. 18, 28, 40). They were 
on the Northwest corner of 2nd Avenue and 19th Street 
(R. 18, 28, 40). The group was standing, listening and 
talking (R. 18). The traffic light changed a number of 
times while they stood there at the intersection (R. 38). 
The group blocked pedestrian traffic to such an extent that 
some people walking east on the north side of 2nd Avenue 
had to walk into the street to get around the group (R. 
18, 21, 29). Petitioner was a member of the group (R. 18, 
28, 35, 42, 51, 61, 62, 76). Officer Byars watched the 
group for a minute to a minute and a half (R. 19, 28, 29). 
Officer Byars then walked up to the group and informed 
them they would have to move on and clear the sidewalk



—  3

so as to allow free passage and not obstruct pedestrian 
traffic (R, 19, 28, 29). A small number in the group 
moved but that was all. Petitioner did not move (R. 19, 
42, 51, 62, 76). After a short while, the officer informed 
the group a second time they would have to move and 
not obstruct the sidewalk in order to permit pedestrian 
traffic to move unhampered (R. 19). Petitioner and some 
others in the group did not move and petitioner stated: 
“ You mean to say we can’t stand here on the sidewalk?”  
(R. 19, 30). Officer Byars did not do or say anything for 
a short period and then he told the group that he was 
telling them the third and last time to move or they 
would be arrested for obstructing the sidewalk (R. 19, 30, 
62). Petitioner was still in the group (R. 19, 30, 35, 42, 
51, 61, 62, 76). There was still some eight to twelve 
people in the group when told to move the third time (R.
19, 30, 35, 42, 51, 61, 62, 76). Petitioner did not move
but made the statement: “ You mean to tell me we can’t 
stand here in front of this store?”  (R. 19). Officer Byars 
then informed petitioner that he was under arrest, after 
which time petitioner moved away saying: “ Well, I will 
go into the store”  (R. 19, 21, 43, 54). At this time the 
rest of the group began moving away (R. 54). Officer 
Byars followed petitioner into Newberry’s Store and took 
him into custody (R. 19, 20). Petitioner asserts in his 
statement that James Phifer was arrested simultaneously 
with Shuttlesworth, but this is not so. The circumstances 
of James Phifer’s arrest are as follows: After taking
Shuttlesworth into custody, Officer Byars took him to the 
west curb to await transportation to city jail (R. 20, 34). 
While awaiting the transportation James Phifer walked 
up and began talking to the petitioner (R. 20, 34). He 
was told that petitioner was under arrest and that he 
could not talk to him. He was instructed three times 
to move away from petitioner before he was arrested (R.
20, 34), Obviously the Alabama Court of Appeals found 
from the evidence that James Phifer was not arrested for



—  4 —

obstructing the sidewalk, but for talking to petitioner, 
and failing to leave when so instructed. Under the cir­
cumstances, it is clear that no traffic situation existed at 
that time and therefore no violation was established under 
either Section 1142 as amended or Section 1231.

STATEMENT IN OPPOSITION TO QUESTIONS 
PRESENTED.

1. Petitioner was convicted on a record containing ample 
evidence of his guilt and therefore was not denied due 
process of law contrary to the Fourteenth Amendment 
to the Constitution of the United States.

2. Petitioner was convicted under ordinances which as 
applied to his conduct were not unconstitutionally vague 
under the Fourteenth Amendment.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED.

In addition to the ordinances set out in Petitioner’s 
application this case also involves Section 1230 of the 
General City Code of Birmingham:

Police to direct traffic; directing in event of fire or 
emergency.—It shall be the duty of the police department 
to enforce the provisions of this chapter. Officers of the 
Police Department are hereby authorized to direct all 
traffic either in person or by means of visible or audible 
signal or sign in conformance with the provisions of this 
chapter; provided, that in the event of a fire or other 
emergency or to expedite traffic or safeguard pedestrians, 
officers of the police or fire department may direct traffic, 
as conditions may require, notwithstanding the provisions 
of this chapter.

Section 1230 is involved in this case because when it is 
construed in pari materia with Section 1231, it limits or 
restricts the scope of Section 1231 to traffic situations.



0 —

ARGUMENT.

Petitioner, Fred L. Shuttlesworth was convicted of 
violating Sections 1142 and 1231 of the General City Code 
of Birmingham, Alabama.

Section 1142 of the General City Code of Birmingham, 
Streets and Sidewalks to be kept open for free passage 
reads:

“ Any person who shall obstruct any street or side­
walk or part thereof in any manner not permitted by 
this code or other ordinance of the City with any 
animal or vehicle, or with boxes or barrels, glass, 

1 trash, rubbish or display of wares, merchandise or 
sidewalk signs, or other like things, so as to obstruct 
the free passage of persons on such street or side­
walks or any part thereof, or who shall assemble a 
crowd or hold a public meeting in any street without 
a permit, shall, on conviction, be punished as pro­
vided in Section 4.

“It shall be unlawful for any person or any number 
i of persons to so stand, loiter, or walk upon any street 

or sidewalk in the City as to obstruct free passage 
over, on or along said street or sidewalk. It shall also 
be unlawful for any person to stand or loiter upon 
any street or sidewalk of the City after having been 
requested by any police officer to move on.”

Section 1231 of the General City Code of Birmingham, 
Obedience to Police, reads as follows:

“It shall be unlawful for any person to refuse or 
fail to comply with any lawful order, signal or direc­
tion of a police officer.”

There are only two questions which petitioner contends 
are presented to this Court for review. Petitioner’s ques­
tions are stated as follows:



“ 1. Whether petitioner was denied due process of 
law contrary to the Fourteenth Amendment to the 
Constitution of the United States by his conviction 
on a record containing no evidence of his guilt.

' “ 2. Whether petitioner was also denied due process
of law by his conviction under ordinances which as 
applied to his conduct are unconstitutionally vague, 
under the Fourteenth Amendment.”

First Question,

Let us now determine whether or not there was sufficient 
evidence to justify petitioner’s conviction and afford him 
his full rights under the “ due process”  clause of the 
Fourteenth Amendment.

It may well be that a defendant is protected by the 
Constitution from conviction on a record without any evi­
dence of guilt. This is not the ease here. The evidence 
in this case is overwhelmingly in support of the trial 
court verdict. Appellant raised this question in the Cir­
cuit Court by a motion to exclude the evidence. He as­
signed its overruling as error. Naturally, a motion to 
exclude the evidence will not lie if there is sufficient evi­
dence to support conviction. The rule in this regard in 
Alabama is that no error results from the overruling of a 
motion to exclude where the evidence presents a question 
for the jury and is sufficient to sustain conviction. Drum­
mond v. State, 37 Ala. App. 308, 67 So. 2nd 280. A sim­
ilar rule is expressed in Inland Power and Light Company 
y, Grieger, 91 F. 2d 811, where we find:

“ In considering the evidence, we must consider 
only that which is most favorable to Appellees, with 
every inference of fact that might be drawn from it. 
Maryland Casualty Co. v. Jones, 279 U. S. 792, 49 S. 
Ct. 484, 73 L. Ed. 960.”

It is clear that both the Alabama rule in regard to 
“ motions to exclude the evidence”  and the Federal rule

—  6 —



in regard to the consideration of the evidence and the in­
ferences to be drawn therefrom, are simply giving recog­
nition to the fact that the trial judge is in a much better 
position to weigh and evaluate contradictory testimony. 
The Appellate Courts are simply not in a position to 
fairly make such a determination; and consequently, the 
foregoing rules were formulated to place this burden 
where it logically belongs.

Seldom is a record presented to this honorable court or 
any other Appellate Court that does not contain contra­
dictory evidence as to distances, number of persons in­
volved or other matters not mentally noted when ob­
served. In this case the evidence, although possibly 
disputed, shows the petitioner was standing in a group of 
ten or twelve people (R. 18, 28, 40), that they stood on 
the corner of 2nd Avenue and 19th Street (R. 18, 28, 40) 
through several changes in the traffic light (R. 38), and 
that the group, including petitioner, blocked the sidewalk 
to such an extent that other pedestrians using the side­
walk had to walk out into the street in order to get 
around the group (R. 18, 21, 29). Officer Byars watched 
the group for a minute to a minute and one-half (R. 19, 
28, 29) and then walked up to the group and informed 
them they were blocking the sidewalk and to move (R. 
19, 28, 29). After a short while Officer Byars told the 
group a second time they would have to move (R. 19). 
Petitioner and others in the group failed to move (R. 19, 
30). A short time later Officer Byars told petitioner and 
his group a third time to move and upon petitioner’s 
failure to comply he was arrested (R. 19). There were 
still eight to twelve persons in the group when told the 
third time to move (R. 19, 30, 35, 42, 51, 61, 62, 76). Peti­
tioner did not move after being told the third time that 
the sidewalk was blocked, but indicated a determination 
not to move by stating: “ You mean to tell me we can’t 
stand here in front of this store?”  (R. 19). At this time 
Officer Byars arrested petitioner (R, 19).



Section 1142 as amended and Section 1231 have been 
set out earlier in this brief. Since the evidence must also 
be sufficient under the counts charging the violations, we 
shall consider the evidence in light of the complaint.

Count One is essentially as follows:
“ Comes the City of Birmingham . . . and com­

plains that F. L. Shuttlesworth, . . . did stand, loiter 
or walk upon a street or sidewalk within and among 
a group of other persons so as to obstruct free pas­
sage over, on or along said street or sidewalk . . . 
or did while in said group stand or loiter upon said 
street or sidewalk after having been requested by a 
police officer to move on . . . ”

It is clear that under count one of the complaint the 
evidence was sufficient.

Petitioner in his brief does raise one other proposition 
which should be discussed. He argues that there was no 
obstruction as contemplated by Section 1142 as amended. 
In order to properly define the term “ obstruct”  as used 
in Section 1142 as amended, the Court should first deter­
mine the objects of the statute and then direct its defini­
tion of the term toward those ends. State v. Lucas, Miss., 
221 Miss. 538, 73 So. 2d 158. In the light of this rule, it is 
clear that “ obstruct”  does not mean a total or complete 
blocking of the sidewalk. This is apparent from the lan­
guage used in the ordinance as well as the objects sought 
to be attained by this regulation. The term “ obstruct 
free passage”  definitely contemplates something less than 
a total or complete blocking of pedestrian traffic. All 
that is required is that the “ free passage”  of pedestrians 
be hindered or impeded. The object of the regulation is 
to permit freedom of travel to pedestrians walking along 
the sidewalk.

Obviously no complete blocking of pedestrian traffic is 
contemplated. Even where large crowds gather to listen

—  8 —



to speeches there is no complete blocking of movement. 
It is possible at the largest of these assemblages to squeeze 
through the crowd. Clearly the word “ obstruct”  in the 
context in which it is used and the object sought to be 
attained means no more than to hinder or impede the 
passage of persons on the sidewalk. If the term “ free”  
as used in “ free passage”  has any meaning at all it must 
be construed so as to limit the term “ obstruct”  as indi­
cated.

Petitioner sets out a portion of the testimony, contend­
ing it establishes that there was no obstruction. The 
portion of the testimony set out by petitioner does not 
even support an inference that there was no obstruction 
of passage. In fact, if we enlarge just slightly upon the 
portion of the record set out in petitioner’s brief, we find 
it completely inconclusive of anything.

“ Q. Now, Mr. Byars, they were standing about 
where you drew that little x mark?

A. That is where the defendant, Shuttlesworth, was.
Q. Well, we are only concerned with these defend­

ants, Mr. Byars. We don’t know what other persons 
made up the crowd.

A. Would you restate the question?
Q. I saw (six) assuming the defendants were stand­

ing where you drew that little mark there, that would 
have left more than half of your north-south cross­
walk free, would it not?

A. That is true.
Q. And they didn’t block the east-west cross-walk 

at all, did they?
A. They did not”  (R. 22, 23).

From the foregoing it is uncertain whether the witness 
was just describing that portion of the sidewalk blocked 
by the petitioner and James Phifer or the entire group. 
Petitioner and Phifer were the only ones on trial and it

—  9 —



is quite likely the witness was telling about the portion 
of sidewalk blocked by these two persons, exclusive of 
the crowd. This seems the only logical conclusion in light 
of counsel’s statement to the witness: “ Well, we are only 
concerned with these defendants, Mr. Byars. We don’t 
know what other persons made up the crowd.”

A. In the case before this Honorable Court it was not 
essential that petitioner, by himself constitute an obstruc­
tion. If his conduct in unison with that of his companions 
caused an obstruction, then he was guilty. It will be noted 
that the second paragraph of Section 1142 as amended 
specifically covers such a situation:

“ It shall be unlawful for any person or any number 
of persons to so stand, loiter, or walk upon any street 
or sidewalk in the City as to obstruct free passage 
over, on or along said street or sidewalk. . . . ”

It is clear under the terms of the ordinance that the 
petitioner could not stand or loiter with his companions 
so as to obstruct the free passage of pedestrians without 
being in violation of Section 1142 as amended. The evi­
dence is clear that petitioner was a member of a group 
that was standing and listening and talking (R. 19). It is 
equally clear that petitioner considered himself a part 
of this group because when told to move on the second 
occasion petitioner stated: “ You mean to say we can’t 
stand here on the sidewalk”  (R. 19, 30)? Common sense 
and logic dictate that this police officer, after observing 
this group for about one and one-half minutes, could tell 
that petitioner’s group was all together. The only other 
conclusion that could be drawn is that those persons 
allegedly not in the group were either themselves ob­
structed by petitioner’s group or had stopped to listen 
to them talk. In either event the conclusion is inescapable 
that petitioner was in violation of Section 1142 as amended.

—  10 —



—  11

Let us now turn to count two of the complaint to see 
if the evidence presented is sufficient under this count. 
Count Two is essentially as follows:

“ Comes the City of Birmingham . . . and complains 
that F. L. Shuttlesworth . . . did refuse to comply 
with a lawful order, signal or direction of a police 
officer . . . ”

The “ lawful order, signal or direction” in this case 
directed the petitioner to “move on” . Under the circum­
stances existing at the time of the order, it was certainly 
lawful.

The general scope and authority of a police officer in 
giving orders in the performance of his duty was dis­
cussed in State v. Taylor, 119 A. 2d 36, 38 N. J. Super. 6, 
in the following language:

“ . . . The duty of police officers, it is true, is ‘not 
merely to arrest offenders, but to protect persons 
from threatened wrong and to prevent disorder. In 
performance of their duties they may give reasonable 
directions.’ People v. Nixon, 248 N. Y. 182, 188, 161 
N. E. 463, 466. Then they are called upon to deter­
mine both the occasion for and the nature of such 
directions. Reasonable discretion must, in such mat­
ters, be left to them, and only when they exceed that 
discretion do they transcend their authority and 
depart from their duty. The assertion of the rights 
of the individual upon trivial occasions and in doubt­
ful cases may be ill-advised and inopportune. Failure, 
even though conscientious, to obey directions of a 
police officer, not exceeding his authority, may inter­
fere with the public order and lead to a breach of the 
peace.” People v. Galpern, 259 N. Y. 279, 181 N. E. 
572, 83 A. L. R. 785 (Ct. App. 1932).

“Failure to obey a police order to ‘move on’ can be 
justified only where the circumstances show conelu-



lively that the order was purely arbitrary and was 
not calculated in any way to promote the public 
order. As was said in the Galpern case, the courts 
cannot weigh opposing considerations as to the wis­
dom of a police officer’s directions when he is called 
upon to decide whether the time has come in which 
some directions are called for.”

The evidence in this case revealed that petitioner and 
his group not only obstructed the sidewalk, but obstructed 
It to such an extent that people using the sidewalk had to 
walk out into the street to get around the group. Peti­
tioner’s conduct was such as to cause an interference with 
vehicular traffic as well as pedestrian traffic, and was well 
within any limitation imposed by virtue of Section 1231 
being located in the Chapter of the City Code titled 
“ Traffic” . Phifer v. City of Birmingham, . .. Alabama 
App. . . ., 160 So. 2d 898.

Under his first question petitioner argues that the real 
reason for his arrest was because of his civil rights ac­
tivities in the City of Birmingham. He implies that he 
was unable to put into evidence the fact that there was 
a selective buying campaign going on in Birmingham on 
the part of the Negro community. It is immaterial 
whether the sustaining of an objection to such evidence 
would be error because the fact of a selective buying 
campaign was introduced into evidence as shown at pages 
25, 26, 66, 81, 125 and 136 of the transcript. Petitioner 
cannot complain of any error in this regard because his 
questions were answered and these answers were con­
sidered by the court.

Not only was petitioner not arrested for his civil rights 
activities, but it can logically be argued that because of 
his civil rights activities, he actively sought arrest to 
further those same ends. In other words he had a better 
motive to seek arrest than did the traffic officer who ar­

—  12 —



13 —

rested him. Each time petitioner has been arrested for 
any offense, it can reasonably be contended that it en­
hanced and increased his prestige in all his civil rights 
activities, and quite likely increased his potential for 
acquiring contributions to support these activities.

Second Question.

Petitioner’s second point or question is equally without 
merit. He contends that Sections 1231 and 1142 as amended 
are vague in their application to his conduct; and con­
sequently, deprive him of rights protected by the Four­
teenth Amendment.

If, as contended by petitioner, his only offenses were 
talking back to the officer and taking part in Civil Eights 
activities, then clearly the application of these ordinances 
to his conduct would be unconstitutional. The facts just 
don’t bear this out. By coincidence, as the record shows, 
the petitioner did talk back to the officer at the same time 
he was committing the offense charged. Actually the 
evidence discloses the petitioner -was told to move three 
times and three times he failed to move, thus violating. 
Sections 1231 and 1142 as amended three times.

The petitioner was not convicted on an ordinance that 
as applied to his conduct was vague and uncertain. The 
defendant has a substantive right:

“ . . . to be informed by the indictment or informa­
tion in simple, understandable language of the crime 
he is charged with and the acts constituting the 
crime, in sufficient detail to enable him to prepare his 
defense and to be protected in the event of double 
jeopardy.” 27 A. Jur., Section 57, p. 623.

In the instant case the complaint based upon the two 
ordinances sufficiently inform the petitioner of the nature 
of the crime and the acts he is charged with having com­
mitted in sufficient detail and manner for him to prepare



his defense and be protected from another prosecution for 
the same offense.

A good discussion of the certainty required of the lan­
guage employed in statutes is found in 22 Corpus Juris 
Secundum, Section 24 (2) at page 67:

“ In determining whether a statute meets the re­
quirement of certainty, the test is whether the lan­
guage conveys sufficiently definite warning as to the 
proscribed conduct when measured by common under­
standing and practices. Absolute certainty is not re­
quired in a criminal statute, and the standards of 
guilt proscribed therein need not be so precise as to 
be capable of reduction to an exact mathematical 
formula or of mechanical application . . ., and a 
standard of conduct under statute need not be defined 
with such precision that those affected by it will 
never be required to have to hazard their freedom 
on correctly foreseeing the manner in which a matter 
of degree may be resolved by a jury . . . ”

Any doubt, if there ever was any, concerning the cer­
tainty of Section 1231 was removed by the limitation 
placed on this section by virtue of its location in that 
chapter of the City Code entitled “ Traffic” . Phifer v. 
City of Birmingham, . . .  Ala. App. . . . ,  160 So. 2d 898. 
As noted in Garner v. State of Louisiana, 82 Sup. Ct. 248, 
368 U. S. 157:

“ Whether state statutes are to be construed one 
way or another is a question of state law, final de­
cision of which rests, of course, with the Courts of 
the State. ’ ’

Under the construction placed on Section 1231 by the 
Appellate Court in Alabama, there is no basis left upon 
which to argue the vagueness and uncertainty of that 
section. Phifer v. City of Birmingham, . . .  Ala. App. . . . ,  
160 So. 2d 898.

—  14 —



—  15

Petitioner also contends at least inferentially, that when 
the Alabama Conrt of Appeals restricted the scope of 
Section 1231 to traffic situations, it made its application 
unconstitutional as to petitioner. He implies that under 
authority of Bouie v. Columbia, . . .  U. S. . . . ,  12 L. Ed. 
894 (1964), the limitation thus placed on Section 1231 was 
unforeseeable and therefore deprived petitioner of fair 
warning contrary to the “ due process”  clause of the 
United States Constitution. There is no comfort for peti­
tioner in that case. The Court in the Bouie case held 
that the judicial enlargement of an ordinance violated 
the due process clause of the Constitution, and also by 
way of dicta held that the unforeseeable limitation by 
judicial construction of a vague or broad statute also 
failed to give fair warning and was thus a denial of due 
process. Tour respondent submits that this statute is not 
and never , has been subject to criticism for being vague 
or too broad. If Section 1231 as presently written had 
appeared in Chapter 35 of the City Code dealing with 
“ Offenses—Miscellaneous” , it would not have been re­
stricted to traffic situations and would not have been so 
broad as to be vague. Respondent also insists that the 
rule of construction applied in the Phifer case is com­
pletely consistent with the prior decisions of the Alabama 
Appellate Courts and was easily foreseeable. In the case 
of Philyaw v. City of Birmingham, 36 Ala. App. 112, 54 
So. 2d 619, we find the following statement of the same 
rule:

“ All City ordinances appearing in the same chapter 
of a city code are in pari materia, and must be con­
strued together and, if possible, be interpreted so as 
to be in harmony. Sloss-Sheffield Steel and Iron Co. 
v. Allred, 247 Ala. 499, 25 So. 2d 179.”

Section 1231 appears in Chapter 51 of the General Code 
and is entitled “ Traffic.”  All sections in this chapter 
relate in some manner to traffic. The section immediately



16 —

preceding Section 1231 when construed with said section 
does a great deal to clarify the restriction imposed in the 
Phifer case.

“ Section 1230. Police to direct traffic; directing in 
event of fire or emergency.

“ It shall be the duty of the police department to 
enforce the provisions of this chapter. Officers of the 
police department are hereby authorized to direct, 
all traffic either in person or by means of visible or 
audible signal or sign in conformance with the provi­
sions of this chapter; provided that in the event of a 
fire or other emergency or to expedite traffic or safe­
guard pedestrians, officers of the police or fire depart­
ment may direct traffic, as conditions may require, 
notwithstanding the provisions of this chapter.”

It is clear when section 1231 is construed in pari ma­
teria with section 1230 and all the other sections appearing 
in this chapter, that it is limited to traffic situations. It 
is equally clear that such a traffic situation existed in this 
instance because pedestrians were compelled to leave the 
sidewalk and walk out into the street to get around peti­
tioner and his group.

As observed in Bouie v. Columbia, supra, the rule peti­
tioner seeks to invoke, is limited to an unforeseeable rule 
of construction which limits or restricts an otherwise vague 
enactment:

“ The basic due process concept involved is the same 
as that which the Court has often applied in holding 
that an unforeseeable and unsupported state-court 
decision on a question of state procedure does not con­
stitute an adequate ground to preclude this Court’s 
review of a federal question . . . The standards of 
state decisional consistency applicable in judging the 
adequacy of a state ground are also applicable, we



17

think, in determining whether a state court’s construc­
tion of a criminal statute was so unforeseeable as to 
deprive the defendant of the fair warning to which 
the Constitution entitled him. In both situations, ‘ a 
federal right turns upon the status of state law as of a 
given moment in the past—or, more exactly, the ap­
pearance to the individual of the status of state law 
as of that moment . . . ’ ”

In this case, the petitioner was given fair warning. The 
construction limiting section 1231 to traffic situations is 
supported by the prior decisions of the State of Alabama, 
and the application of this ordinance in this manner was 
clearly foreseeable by petitioner.

Respondent respectfully submits that the opinion of the 
Court of Appeals of Alabama is correct in all respects 
and that Petitioner’s application for writ of certiorari 
should be denied.

W. C. WALKER,

EARL McBEE,
Attorneys for Respondent.