Shuttlesworth v Birmingham AL Petition for Writ of Certiorari

    I n  the

iB’ujirrmr Court of tljr luttrd 0tatro
O ctober T erm , 1967 

No. ...............

------------------ —  -------------- _ — ----------------------------------------------------------------

F red L. S h u ttlesw orth ,
Petitioner,

—v.—

City  oe B ir m in g h am , A labam a .

PETITION FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT OF ALABAMA

J ack  Greenberg 
J am es M. N abrit , III 
N orman  C. A m aker  
Charles S tephen  R alston 
M elvyn  Z arr

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

A rth u r  D. S hores
1527 Fourth Avenue North 
Birmingham, Alabama 35203

O rzell  B illin gsley , J r .
1630 Fourth Avenue North 
Birmingham, Alabama 35203

Attorneys for Petitioner



Opinions Below 

Jurisdiction ....

I N D E X

PAGE

1

2

Questions Presented....................................................   2

Constitutional and Statutory Provisions Involved.... . 3

Statement of the Case .......................   4

How the Federal Questions Were Raised and De­
cided Below .............................................................. 9

R easons for G ranting  th e  W rit

I. Certiorari Should Be Granted to Decide Whether 
the Court Below Misapplied This Court’s Deci­
sions in Walker v. City of Birmingham, 388 IT. S.
307 (1967), and Cox v. New Hampshire, 312 
U. S. 569 (1941), so as to Bring Them Into Con­
flict With Lovell v. Griffin, 303 U. S. 444 (1938) 
and Stauh v. Baxley, 355 U. S. 313 (1958) ......... 11

II. Certiorari Should Be Granted to Decide Whether 
the Decision Below Conflicts With Bouie v. Co­
lumbia, 378 U. S. 347 (1964), Because Petitioner 
Was Given No Fair Warning That He Was Re­
quired to Secure a Parade Permit A) Because 
Prior Decisions of This Court Taught Peti­
tioner That He Need Not Submit to a Permit 
Ordinance Patently Unconstitutional on Its Face



11

and B) Because Petitioner Only Participated in 
a Peaceful, Orderly and Nonobstructive Walk 
Along the Sidewalks of Birmingham................... 21

C onclusion  ............... ............................................... ............  26

A ppendix  :

Opinion of the Supreme Court of Alabama....... ....  la

Judgment of the Supreme Court of Alabam a.......  15a

Opinion of the Court of Appeals of Alabama.......  17a

T able op Cases

Baker v. Bindner, 274 F. Supp. 658 (W. D. Ivy. 1967) .. 15
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .....  14
Borne v. Columbia, 378 U. S. 347 (1964) ...........21, 22, 24, 25

Cantwell v. Connectcwb, 310 U. S. 296 (1940) ............... 21
Cox v. Louisiana, 379 U. S. 536 (1965) .........     21
Cox v. New Hampshire, 312 TJ. S. 569 (1941) .......9,11,12,

13,14,18, 
19, 22, 24, 25

Dombrowski v. Pfister, 380 U. S. 479 (1965) ....... .......  14
Ducourneau v. Langan, 149 Ala. 647, 43 So. 187 (1907) 17

Freedman v. Maryland, 380 U. S. 51 (1965) ............... 16,21

Gamble v. City of Dublin, 375 F. 2d 1013 (5th Cir.
1967) .................................................................................  15

Gober v. City of Birmingham, 373 U. S. 374 (1963) .... 5
Guyot v. Pierce, 372 F. 2d 658 (5th Cir. 1967) ............... 15

PAGE



I l l

PAGE

Hague v. C. I. 0., 307 U. S. 496 (1939) ........................... 21

In re Shuttlesworth, 369 U. S. 35 (1962)  ................... 5

James v. United States, 366 IT. S. 213 (1961) ............... 22
Jones v. Opelika, 316 U. S. 584 (1942), dissenting opin­

ions per curiam on rehearing, 319 U. S. 103 (1943) .... 21

Keyiskian v. Board of Regents, 385 IT. S. 589 (1967) .... 14 
King v. City of Clarksdale, 186 So. 2d 228 (Miss. 1966) 15
Runs v. New York, 340 U. S. 290 (1951) ... ...................  21

Largent v. Texas, 318 IT. S. 418 (1943) ........................... 21
Lassiters. Werneth, 275 Ala. 555,156 So. 2d 647 (1963) 17
Lovell v. Griffin, 303 U. S. 444 (1938) ...................11,12,13,

18, 20, 21, 22

Marsh v. Alabama, 326 IT. S. 501 (1946) ...................  21

NAACP v. Button, 371 U. S. 415 (1963) .......   14
Niemotko v. Maryland, 340 IT. S. 268 (1951) ..............  21

Primm v. City of Birmingham, 42 Ala. App. 657, 177 
So. 2d 326 (Ct. App. Ala. 1964) ........... ....................... 23

Saia v. New York, 334 IT. S. 558 (1948) ..........................  21
Schneider v. State, 308 U. S. 147 (1939) ....................... 21
Shuttlesworth v. City of Birmingham, 373 IT. S. 262

(1963) ............................................................................... 5
Shuttlesworth v. City of Birmingham, 376 U. S. 339

(1964) ...................'..................... ......................................  5
Shuttlesworth v. City of Birmingham, 382 IT. S. 87

(1965) ......... ................................................ ..... 4, 5, 21, 22, 25
Staub v. Baxley, 355 IT. S. 313 (1958) ...................11,12,13,

18, 20, 21, 22



IV

Teitel Film Corp. v. Cusack, —— U. S. — —, 19 L. ed.
2d 966, January 29, 1968 ........................... -...................  16

Tucker v. Texas, 326 U. S. 517 (1946) ..........................  21

Walker v. City of Birmingham, 388 U. S. 307 (1967) ..5, 9,11,
12,14, 22

Other  A uthorities

Code of Ala., Tit. 7, § 1072 ..............................................  16
Kalven, The Concept of the Public Forum. 1965 Su­

preme Court Review, 1 ........ .........................................  18

PAGE



I n the

S u p r e m e  Glmtrt n f  %  U n ited  S t a t e s

O ctober T erm , 1967 
No..................

F red L. S h u ttlesw orth ,

■V.—
Petitioner,

C ity  of B ir m in g h a m , A labam a.

PETITION FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT OF ALABAMA

Petitioner Fred L. Shuttlesworth prays that a writ of 
certiorari issue to review the judgment of the Supreme 
Court of Alabama, entered in the above-entitled cause on 
November 9, 1967.

Opinions Below

The opinion of the Supreme Court of Alabama is re­
ported at 206 So. 2d 348. The opinion and judgment of the 
Supreme Court of Alabama are set forth, Appendix, pp. 
la-16a, infra. The opinions in the Court of Appeals of 
Alabama, Sixth Division, are at 43 Ala. App. 68, 180 So. 
2d 114 (1965), Appendix, pp. 17a-80a, infra.



2

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered November 9, 1967 (R. II, 24).1 On January 27, 
1968, Mr. Justice Black extended the time in which to file 
this petition for writ of certiorari to and including March 
8, 1968.

Jurisdiction of the Court is invoked pursuant to 28 
U. S. C. § 1257(3), petitioner having asserted below and 
asserting here deprivation of rights, privileges and immuni­
ties secured by the Constitution of the United States.

Questions Presented

1. Petitioner was convicted of parading without a per­
mit, in violation of the Birmingham parade ordinance. 
Petitioner had ignored the permit requirement because its 
grant of overbroad discretionary licensing power rendered 
it patently offensive to the First and Fourteenth Amend­
ments and because there were no Alabama procedures for 
effective and timely administrative decision-making and 
judicial review. On appeal, after the Alabama Court of 
Appeals had declared the ordinance unconstitutional on 
its face and reversed petitioner’s conviction, the Supreme 
Court of Alabama purported to excise the constitution­
ally offensive portions of the ordinance, retroactively 
validated it and affirmed petitioner’s conviction. Under 
these circumstances, was petitioner denied due process of 
law?

1 The record is in two volumes, herein designated as R. I (con­
taining- the proceedings in the Court of Appeals of Alabama) and 
R. II (containing the proceedings in the Supreme Court of Ala­
bama).



3

2. Did the application of the Birmingham parade ordi­
nance to petitioner deny him due process of law because 
it provided him no fair notice that he was required to 
secure a parade permit:

a) Because prior decisions of this Court taught peti­
tioner that he need not submit to a permit ordinance 
patently offensive to the First and Fourteenth Amend­
ments which could not be saved short of repeal; and,

b) Because he had no fair notice that his participa­
tion in a peaceful, orderly and nonobstructive walk 
along the sidewalks of Birmingham would be held to 
constitute a parade?

Constitutional and Statutory Provisions Involved

This case involves the First Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

This case also involves the following ordinance of the 
City of Birmingham, a municipal corporation of the State 
of Alabama:

General  Code of C ity  of B ir m in g h a m ,
A labama (1944), § 1159

It shall be unlawful to organize or hold, or to assist 
in organizing or holding, or to take part or partici­
pate in, any parade or procession or other public 
demonstration on the streets or other public ways of 
the city, unless a permit therefor has been secured 
from the commission.

To secure such permit, written application shall be 
made to the commission, setting forth the probable



4

number of persons, vehicles and animals which will be 
engaged in such parade, procession or other public 
demonstration, the purpose for which it is to be held 
or had, and the streets or other public ways over, 
along or in which it is desired to have or hold such 
parade, procession or other public demonstration. 
The commission shall grant a written permit for such 
parade, procession or other public demonstration, 
prescribing the streets or other public ways which may 
be used therefor, unless in its judgment the public 
welfare, peace, safety, health, decency, good order, 
morals or convenience require that it be refused. It 
shall be unlawful to use for such purposes any other 
streets or public ways than those set out in said per­
mit.

The two preceding paragraphs, however, shall not 
apply to funeral processions.

Statement of the Case

This case tests the right of citizens of Birmingham, 
Alabama to stand on, or walk along, the public sidewalks 
of that city in a peaceful, orderly and nonobstructive 
manner.2

Petitioner Fred L. Shuttlesworth, a Negro minister, is 
a “ ‘notorious’ person in the field of civil rights in Birming­
ham.” 3 Toward such a notorious person, “ [t]he attitude

2 Recently, in Shuttlesworth v. City of Birmingham, 382 IJ. S. 
87 (1965), the Court struck down petitioner Shuttlesworth’s con­
viction under another Birmingham city ordinance which, literally 
read, said that “a person ean stand on a public sidewalk in Bir 
mingham only at the whim of any police officer of that city” (382 
U. S. at 90).

3 Shuttlesworth v. City of Birmingham, 382 U. S. 87, 102 (1965) 
(concurring opinion of Fortas, / . ) .



5

of the city administration in general and of its Police 
Commissioner in particular are a matter of public record, 
of course, and are familiar to this Court from previous 
litigation. See Slmttlesworth v. City of Birmingham, 382 
U. S. 87 (1965); Shuttlesworth v. City of Birmingham, 376 
U. S. 339 (1964); Shuttlesworth v. City of Birmingham, 
373 U. S. 262 (1963); Goher v. City of Birmingham, 373 
U. S„ 374 (1963); In re Shuttlesworth, 369 U. S. 35 
(1962).” 4

Petitioner Shuttlesworth seeks review of his conviction 
for taking part in a peaceful protest demonstration in 
Birmingham on Good Friday, April 12, 1963—a time “when 
Birmingham was a world symbol of implacable official hos­
tility to Negro efforts to gain civil rights, however peace­
fully sought.” 5 Trials of approximately 1500 other demon­
strators, charged, like petitioner, only under the Biiuning- 
ham parade ordinance, are pending the outcome of this 
case.

Good Friday was a pivotal day in the historic civil rights 
campaign of petitioner Shuttlesworth and others involved 
in the movement of that period. At about noon, a crowd 
began to gather in a church in the 1400 block of Sixth 
Avenue (R. I, 67). Police officers were stationed outside 
to watch for signs of a demonstration (R. I, 35, 43, 48). 
A large number of photographers (R. I, 53) and onlookers 
gathered (R. I, 45).

At about 2 :15 p.m., 52 persons emerged from the church 
(R. I, 41, 44-45).. They formed up in pairs on the side­

4 Walker v. City of Birmingham, 388 U. S. 307, 325, n. 1 (1967 ) 
(dissenting opinion of Warren, C.J.).

5 Walker v. City of Birmingham, 388 U. S. 307, 338-39 (1967) 
(dissenting opinion of Brennan, J.).



6

walk and began to walk in a peaceful, orderly and non­
obstructive way toward City Hall (R. I, 35, 37, 39, 41, 
44-46, 62-63, 65, 67).6 They walked about forty inches 
apart, carried no signs or placards and observed all traffic 
lights (R. I, 37, 39). At times they sang (R. I, 26, 35, 55).

Petitioner was not paired off; he was at times observed 
near various points of the column, but at other times he 
was not near the column at all (R. I, 25-26, 37, 39-40, 46- 
48, 54-55, 61-62, 64-68, 70-71).

The walk proceeded about four blocks—to the 1700 block 
of Fifth Avenue—where all the participants were arrested 
(R. 25, 38, 45). The whole episode took 15 to 30 minutes 
(R. I, 28). Petitioner was arrested some two hours later 
at his motel (R. I, 71-72).

There was no evidence that petitioner had applied for a 
parade permit. The parade permit book, a clerk in the 
city Clerk’s office testified, contained no parade permit 
for Good Friday (R. I, 31). The clerk testified that she 
had never noticed—or issued a permit for—a “ parade” on 
the sidewalks of Birmingham (R, I, 33). For example, it 
was not the practice to issue permits for a group of Boy 
Scouts forming up to board a bus (R. I, 33). The practice 
was to issue permits for parades in the streets, having 
bands and vehicles (R. I, 33). The following exchange oc­
curred (R. I, 33):

Q. Mrs. Naugher, I believe you said you have been 
clerk for seventeen years. A. Yes.

6 One police officer testified the group was 4 to 6 abreast (R. I, 
23-24), but, in the context of his and other police officers’ testimony 
(R. I, 40-41, 44-46, 56), it is clear that the Alabama Court of 
Appeals was correct in concluding that this “bunching up coincided 
with the promenaders being blocked by officers parking police cars 
athwart the crossing” where they were arrested (R. I, 83).



7

Q. You have seen a number of these parades, haven’t 
you? A. Yes.

Q. Have you noticed a parade down the streets or 
on the sidewalk? A. In the streets.

Q. All in the street? A. Yes.
Q. And did you notice whether or not these parades 

would have bands or vehicles in the procession? A. 
Yes.

Q. They would? A. Yes.
Q. And does one get a permit to picket, or just to 

parade? A. No.
Q. Does one get a permit to just walk down the 

street? A. No.
Q, Do you know whether or not at time when a 

group of Boy Scouts or Girl Scouts were going to load 
up on the bus, whether or not they would have to get 
a permit to get to the bus?

The Court: That would be a legal question and
she wouldn’t be competent.

Mr. Billingsley: The vital question is whether or
not—what she has in the book there.

A. We have not issued any.

The complaint against petitioner charged that he “ did 
take part or participate in a parade or procession on the 
streets of the City without having secured a permit there­
for from the commission, contrary to and in violation of 
Section 1159 of the General City Code o f Birmingham” 
(E. I, 3).

October 1, 1963, petitioner was tried before a jury in the 
Circuit Court of the Tenth Judicial Circuit, convicted and 
sentenced to 90 days hard labor and an additional 48 days



8

hard labor for failure to pay the fine of $75.00 and costs 
of $28.00 (E. I, 9-10).7

November 2, 1965, the Court of Appeals of Alabama, 
Sixth Division, reversed petitioner’s conviction, holding 
(E. I, 119-20; App., pp. 09a 70a, infra, 180 So. 2d 114, 140- 
41):

(1) §1159 of the 1944 General Code of the City of 
Birmingham, certainly as to the use of sidewalks by 
pedestrians, is void for vagueness because of over­
broad, and consequently meaningless, standards for 
the issuance of permits for processions; (2) said § 1159 
has been enforced in a pattern without regard to even 
the meaning here claimed for by the City to such an 
extent as to make it unconstitutional as applied to 
pedestrians using the sidewalks; and (3) the City 
failed to make a case, under the purported meaning 
of § 1159, of there being a need for the appellant in 
this case to be covered by a permit to use the sidewalk 
in company with others.

November 9, 1967, the Supreme Court of Alabama re­
versed the Court of Appeals, rejecting all three bases of 
that court’s decision (E. II, 6-23; App., pp. la-14a, infra). 
The Supreme Court held that § 1159 was not void on its 
face (E. II, 20; App., p. 11a, infra), that §1159 had not 
been unconstitutionally applied to petitioner (E. II, 20; 
App., p. 11a, infra) and that there was sufficient evidence

7 Earlier, on May 15, 1963, petitioner was tried and convicted 
in the Recorder’s Court of the City of Birmingham and sentenced 
to 180 days hard labor and a fine of $100.00 (R. I, 2). From this 
judgment, petitioner took an appeal to the Circuit Court for trial 
de novo.



9

of petitioner’s violation of § 1159 (R. II, 21; App., p. 12a, 
infra).

The Court based its holding upon this Court’s decisions 
in Walker v. City of Birmingham,388 U. S. 307 (1967) 
and Cox v. New Hampshire, 312 IT. S. 569 (1941) (R, II, 
19-20; App., pp. lla-14a, infra). The Court held that 
Walker and Cox required reversal of the Court of Appeals’ 
voiding of the Birmingham parade ordinance, notwith­
standing this Court had explicitly refused to rule on the 
ordinance’s validity (388 U. S. at 316-17). The Court con­
ceded that its reliance upon Walker and Cox might be 
misplaced,8 but concluded (R. II, 23; App., pp. 13a-14a, 
in fra ): “ I f  so, we will no doubt be set straight.” 9

How the Federal Questions Were 
Raised and Decided Below

In the circuit court, petitioner raised the federal ques­
tions presented here by demurrer (R. I, 4-5), by motion 
to exclude the testimony and for judgment (R. I, 8, 59-60) 
and motion for new trial (R. I, 12-14). All these motions 
were overruled (R. I, 18, 60, 11).

The Court of Appeals of Alabama treated petitioner’s 
assignment of errors (R. I, 80) as presenting the follow­
ing three questions for decision (R. I, 82; App., p. 18a, 
infra; 180 So. 2d at 116) ;

8 “Perhaps we have placed too much reliance on Walker v. City 
of Birmingham, 388 U. S. 307 and on Cox v. New Hampshire, 312 
U. S. 569. We may have misinterpreted the opinions in these 
cases” (R. II, 23; App., pp. 13a-14a, infra).

9 On December 4, 1967, the Supreme Court of Alabama entered 
a stay pending certiorari (R. II, 29-30).



10

(1) Whether § 1159, supra, denies, on its face, dne 
process of law; (2) whether or not the ordinance as 
applied violates Yick Wo v. Hopkins, 118 U. S. 356; 
and (3) the sufficiency of the evidence.

These issues were resolved favorably to petitioner (R. I, 
81-120; App., pp. 17a-70a, infra; 180 So. 2d 114-41), one 
Judge dissenting (R. I, 121-29; App., pp. 70a-80a; 180 
So. 2d 141-45).

The Supreme Court of Alabama stated the federal ques­
tions presented in the following terms (R. II, 9; App., p. 3a, 
infra): 1) Whether “ §1159 is void on its face because 
of overbroad and consequently meaningless standards for 
the issuance of permits for parades or processions” ; 2) 
Whether § 1159 “has been enforced by the City of Birming­
ham in such a way as to make it unconstitutional” ; and 3) 
Whether “ the evidence adduced by the City of Birmingham 
in the trial in the circuit court was insufficient to present 
a jury question as to whether Shuttlesworth had, in fact, 
been engaged in a parade, procession or other public 
demonstration in the streets or other public ways of the 
City of Birmingham without first having obtained a per­
mit as required by § 1159.”

All these issues were resolved adversely to petitioner 
on federal constitutional grounds (R. II, 6-23; App., pp. 
la-14a, infra).



1 1

REASONS FOR GRANTING THE WRIT

I.

Certiorari Should Be Granted to Decide Whether the 
Court Below Misapplied This Court’s Decisions in Walker 
v. City of Birmingham, 388 U. S. 307 (1967), and 
Cox x. New Hampshire, 312 U. S. 569 (1 9 4 1 ), so as to 
Bring Them Into Conflict With Lovell v. Griffin, 303 
U. S. 444 (1 9 3 8 ) and Staub v. Baxley, 355 U. S. 313 
(1958).

In rejecting petitioner’s claim that the Birmingham 
parade ordinance, § 1159 of the General City Code of 
Birmingham, was unconstitutional on its face, the court 
below placed great reliance upon this Court’s decision in 
Walker v. City of Birmingham, 388 II. S. 307 (1967).10 
Quoting a phrase in the Walker opinion to the effect that 
“ it could not be assumed [§ 1159] . . . was void on its 
face” (388 IT. S. at 317), the Alabama Supreme Court 
held that Walker “ seems to us to be in direct conflict with 
the conclusion reached in the majority opinion of the Court 
of Appeals of Alabama here under review” (R. II, 19-20; 
App., p. 11).

But to read Walker as supporting the facial constitu­
tionality of a licensing ordinance such as § 1159 is a dan­
gerous distortion of this Court’s decision which the Court 
should quickly correct before it gains currency in the lower 
courts. In Walker, the Court merely refused to disturb 
Alabama’s ruling that the validity of the ordinance and 
the injunction embodying it could not be tested in a crim­
inal contempt proceeding. It was in this context that

10 R. II, 16-23; App., pp. 9a-14a, infra.



1 2

the prevailing opinion said that the ordinance could not 
“be assumed” to be void. The Court was thus far from 
sustaining the constitutionality of §1159 ; to the contrary, 
it noted that the “ generality”  of the ordinance’s language 
unquestionably raised “ substantial constitutional issues” 
(388 U. S. at 316). And the Chief Justice, in a dissenting 
opinion which Justices Brennan and Fortas joined, ex­
pressed the belief that § 1159 was “patently unconstitu­
tional on its face” (388 U. S. at 328).

The effect of the decision below is to convert Walker 
and Cox v. New Hampshire, 312 U. S. 569 (1941), into a 
two-pronged instrument for the validation and perpetua­
tion of unconstitutional licensing regimes. If this device 
succeeds, it will effectively destroy the salutary principle 
long adhered to by this Court as an indispensable element 
of the protection afforded free expression against imper­
missible censorship: the principle of cases such as Lovell 
v. Griffin, 303 IT. S. 444 (1938), and Staub v. Baxley, 355 
U. S. 313 (1958), that a facially unconstitutional licensing 
law is wholly void and need not be complied with.

Under § 1159 as written, and as it confronted petitioner 
Shuttlesworth in 1963, the Birmingham licensing author­
ity is granted power to withhold a parade permit if “ in 
its judgment the public welfare, peace, safety, health, 
decency, good order, morals or convenience” require it. A 
more explicit grant of unconstitutional censorial power 
can hardly be imagined.11 If, in supposed reliance upon

11 “When local officials are given totally unfettered discretion to 
decide whether a proposed demonstration is consistent with ‘public 
welfare, peace, safety, health, decency, good order, morals or con­
venience,’ as they were in this case, they are invited to act as censors 
over the views that may be presented to the public”  ( Walker v. City 
of Birmingham, supra, 388 U. S. at 329) (dissenting opinion of 
Warren, C.J.). See authorities collected in note 15, infra.



13

Walker, such an ordinance can be retroactively rewritten 
so as to save its constitutionality by excising most of its 
operative language, there is no licensing legislation that 
cannot be similarly sustained. And if, as the court below 
interpreted the doctrine of Cox, the post-operative shape 
of the legislation warrants imposing criminal liability 
upon those who read it as it was written and decline to 
comply with a palpably unconstitutional censorship scheme, 
the consequence is clear and frightening. Lovell v. Griffin 
is dead; Stciub v. Baxley is dead; every licensing regula­
tion—however broad the discretionary porver it appears 
to confer upon the licensing authorities over the activities 
of the persons required to be licensed—must be obeyed.

The resultant damper on constitutionally guaranteed 
freedoms of expression is obvious. The States are per­
mitted and encouraged to hold out a broad and overhang­
ing threat of greater censorship than the Constitution 
permits them to exact. So long as the threat is effective 
and fear of attendant criminal penalties discourages chal­
lenge to it, the censorship exerts its full, unconstitutional 
repressive effect. When and if a challenge is mounted, 
the state courts (which may or may not be the highest 
court of a state) announce that the statutory regulation 
does not mean Avhat it plainly says, and—-without remov­
ing the overbroad language from the statute books, where 
it remains to be invoked by the licenser and to cow laymen 
subject to regulation under it—give it some post hoc verbal 
construction designed and sufficient to bring it barely back 
across the line of constitutional condemnation.

Just this sort of regulation of speech conduct, wherein a 
State undertakes to threaten by ostensible prohibition a 
broader range of protected activities than it can eonstitu-



14

tionally restrict, has been voided by this Court in numerous 
contests other than licensing laws. E.g., Bantam Boohs, 
Inc. v. Sullivan, 372 U. S. 58 (1963); N. A. A. C. P. v. But­
ton, 371 U. S. 415 (1963); Dombrowshi v. Pftster, 380 U. S. 
479 (1965); Keyishian v. Board of Regents, 385 U. S. 589 
(1967). Its emergence in the licensing area, under the 
aegis of Cox v. New Hampshire and the Walker decision 
as construed below, we submit, poses a menace to First 
Amendment freedoms that this Court should now review.

In saying this, we do not for a moment question the 
soundness of the basic Cox principles: that it is constitu­
tionally permissible for a State or a municipality to require 
that parades be licensed, under proper standards and pro­
cedures; and that persons who parade without the license 
required by valid legislation may be criminally punished 
consistent with the Constitution. But, as appears from the 
decision below, those basically sound principles afford 
substantial opportunities for abuse, and therefore require 
at least occasional review by this Court of their adminis­
tration, so as to assure that they are restricted to their 
proper compass. We respectfully suggest that the time is 
now ripe for a review of the question of what limitations 
must effectively be placed on a municipal licensing scheme 
in order to bring it within the validating principles of 
Cox, and that the present case presents a peculiarly fit 
occasion for that review.

For it is clear that what the Alabama Supreme Court 
has done here is retroactively to validate some 1500 crimi­
nal charges, plainly impermissible incidents of an uncon­
stitutional licensing procedure when made, by wrapping 
them about with the mere verbal habiliments of the Cox 
opinion. Not only does this have the effect of legalizing



15

the illegal conduct of the Birmingham authorities—and 
illegalizing the legal conduct of the 1500 Birmingham civil 
rights demonstrators—in 1963; it also leaves Birmingham 
Code § 1159 and literally hundreds of cognate statutes 
and ordinances12 lying about like so many traps against 
future free speech activity. Even in the case of § 1159 
itself, which now has been given an authoritative if belated 
limiting construction, the danger of irremediable uncon­
stitutional application remains intense, both because of the 
gap between the limiting construction and what the face 
of the ordinance appears to countenance, and because of 
the absence in Alabama of any administrative or judicial 
machinery serviceable to make the limiting construction 
anything more than verbal. And, of course, the danger is 
greater still in the case of other, similar but as yet uncon­
strued licensing statutes and ordinances, to which the effect 
of the decision below is to enforce compliance.

These dangers are apparent upon consideration of the 
alternatives open to the citizen wishing to participate in a 
“ parade’1 (assuming arguendo that a citizen has fair warn­
ing of what constitutes a “ parade,” see II B, infra), under 
such a statute or ordinance:

1. The citizen can submit to the issuer’s discretion 
and, if his permit application is denied, can attempt 
to seek review of this denial; or,

12 Statutes and ordinances creating broadly discretionary licens­
ing regimes appear to be ubiquitous, notwithstanding this Court’s 
repeated condemnation of them (see note 15, infra). The Jackson 
ordinance condemned in Ouyot v. Pierce, 372 F. 2d 658 (5th Cir. 
1967), for example, was a portion of the Uniform Traffic Code. See 
also, e.g., Baker v. Bindner, 274 F. Supp. 658 (W. D. Ky. 1967) ; 
King v. City of Clarksdale, 186 So. 2d 228 (Miss. 1966) ; Gamble 
v. City of Dublin, 375 F. 2d 1013 (5th Cir. 1967).



16

2. The citizen can refuse to make application for a 
parade permit and attempt to challenge the regime of 
the ordinance if he is prosecuted for parading without 
a permit.

The second alternative is plainly foreclosed by the de­
cision below. As we have pointed out, if Birmingham Code 
§ 1159 can be retroactively rewritten and thereby validated 
by judicial construction in a criminal prosecution, any 
licensing legislation can. All must therefore be obeyed.

But the remaining alternative—to obey and seek a per­
mit—is an equally repressive requirement, for several 
reasons. In the first place, a system of enforced compli­
ance with overbroad licensing laws presents no real means 
of challenging their coercive effect because in practice it 
preserves wide-open, operative and unchallengeable the 
discretion in the issuer of parade permits. Alabama is no 
exception. In Alabama, judicial review is theoretically 
available by way of mandamus, see Code of Ala., Tit. 7, 
§ 1072, but that remedy is largely ineffective because there 
is no requirement of dispatch, compare Freedman v. Mary­
land, 380 U. S. 51 (1965) and Teitel Film Corp. v. Cusack,
------  U. S. ------ , 19 L. ed. 2d 966, January 29, 1968, and
because the citizen must overcome a nearly impossible 
burden of showing that administrative discretion has been 
abused:

“ To warrant the issuance of mandamus, not only 
must there be a legal right in the relator, but, owing 
to the extraordinary and drastic character of man­
damus and the caution exercised by courts in award­
ing it, it is also important that the right sought to 
be enforced be clear and certain, so as not to admit 
of any reasonable controversy. The writ does not

/r f t ' ' r , *>/
i, j . i  '• r . t / v  .r 4%  h r  i >  -r. «  /*

€> < ©J) c 44



17

issue in eases where the right in question is doubt- ] 
ful. . . . ” Lassiter v. Werneth, 275 Ala. 555, 156 So. 2d 
647, 648 (1963); see also Ducourneau v. Lang an, 149 
Ala. 647, 43 So. 187 (1907).

The facts that the administrative decision challenged is 
not required to be made on a record of regular procedures; 
or to be supported by any statement of reasons; and that 
there is not even required to be kept any administrative 
log or recording of permit grants and denials (R. I, 32), 
make virtually insuperable the difficulty of proving a case 
of judicially revisable arbitrary or discriminatory enforce­
ment. This, together with the prospect of delay involved 
in judicial challenge, makes reversal of the denial of a 
permit application in any particular case highly unlikely. 
And, in any event, no general construction of the overbroad 
permit law is assured by this route; while facial challenge 
to it is, of course, denied.

But, there is, in the second place, good reason why this 
Court has long endorsed the principle that citizens should 
be free to refuse to submit to a licensing scheme which 
has a coercive effect upon First Amendment rights. These 
overbroad laws are numerous and their prior restraints 
affect large numbers of people who cannot be supposed to 
have the knowledge and resources to combat them by pro­
longed administrative and judicial challenge. In this case 
alone, 1500 people were subjected to the prior restraints 
of the Birmingham parade ordinance.. If they had sought 
parade permits under the ordinance, it was and is specula­
tive what construction would have been put upon § 1159 
by the Birmingham authorities or the Alabama courts, or 
how long the demonstrators would have been in court be­
fore obtaining any construction. One thing, we think, is



18

clear: there would have been no civil rights Easter
marches in Birmingham in 1963. It was not heedlessly, we 
suggest, that Lovell v. Griffin, 303 U. S. 444, 452-53 (1938) 
and Staub v. Baxley, 355 U. S. 313, 319 (1958), stated this 
Court’s preference for allowing challenges to the whole 
regime created by such overbroad licensing laws. The 
Court recognized that only by facilitating challenges to the 
law itself could its coercive sting be removed.

Third, Birmingham Code § 1159, in its effective opera­
tion in 1963 and by its language on the books today, ex­
pressly embodies an unconstitutionally broad grant of 
censorial licensing power. This was not the case, it should 
be noted, of the ordinance challenged in Cox. The Cox 
ordinance merely provided that licenses for parades and 
certain other gatherings must be obtained. Not surpris­
ingly, the New Hampshire Supreme Court held that the 
discretion of the issuer of parade permits was governed 
by the standard of considerations of time, place and man­
ner in order “to prevent confusion by overlapping parades 
or processions, to secure convenient use of the streets by 
other travelers, and to minimize the risk of disorder.” 
Cox v. New Hampshire, 91 N. H. 137, 144, 16 A. 2d 508, 
514 (1940), quoted with approval, 312 IT. S. at 576. The 
New Hampshire Supreme Court relied on “ the unbeatable 
proposition that you cannot have two parades on the same 
corner at the same time” 13 and, of course, this Court 
agreed.

Thus, the problem not presented in Cox but presented 
here is how to remedy a parade permit law which on its 
face appears to grant to officials far more discretionary

13 Kalven, The Concept of the Public Forum, 1965 Supreme 
Court Review, 1, 25.



19

licensing power than the Constitution allows. The verbal 
solution offered by the court below—eliminating the stand­
ards of “public welfare,” “peace,” “ safety,”  “health,” “ de­
cency,”  “ good order” and “morals” and keeping only the 
standard of “ convenience” (R. II, 16; App., p. 8a, infra)— 
is a plainly unsatisfactory remedy, at least as applied in 
petitioner’s case. True, the court below took great pains 
to chop off the language of the Birmingham parade ordi­
nance and to substitute for it the language of this Court 
and the New Hampshire Supreme Court in Cox.u But that 
disposition— operating post facto on the past and with 
speculative and unassured efficacy for the future—hardly 
cures the problem. Birmingham’s licensers still have the 
unchanged face of the Code to point to in their dealings 
with citizens; and if those dealings are abusive, no ade­
quate machinery is available to convert the Alabama 
Supreme Court opinion below into an effective and en­
forceable restraint upon the day-to-day reality of the li­
censing system.

The foregoing considerations put into focus the trouble 
with the disposition by the court belowr: it punishes the 
citizen who, by daring to challenge an overbroad prior 
restraint, succeeds in having it limited to proper constitu­
tional bounds. This punishment is the reward of that 
citizen although, in Alabama, his challenge is the only 14

14 The standards stated in the Alabama Supreme Court’s opinion 
are lifted without citation from the New Hampshire Supreme 
Court’s opinion, viz., that the discretion must be exercised with 
“uniformity of method of treatment upon the facts of each appli­
cation, free from improper or inappropriate considerations and 
from unfair discrimination. A systematic, consistent and just order 
of treatment, with reference to the convenience of public use [of 
the highways]” must be followed (91 N. IT. at 143, 16 A. 2d at 
513; R. II, 16; App., p. 8a).



20

effective way to curb the coercive effects of an overbroad 
prior restraint such as the Birmingham parade ordinance.

We do not see how such a result can be squared with the 
principle of this Court’s Griffin and Staub decisions. Per­
haps in cases where the machinery of administrative deci­
sion-making and judicial review is clearly established, ef­
fective and timely to restrict broad prior restraints, the 
Griffin-Stcmb right to be wholly free of those restraints 
may be abrogated. But that is not the case here. The 
Alabama Supreme Court may have adopted the Cox lan­
guage; it has not yet adopted procedures adequate to in­
sure effective respect for the Cox principle of “uniformity 
of method of treatment upon the facts of each applica­
tion, free from improper or inappropriate considerations 
and from unfair discrimination” (see note 14, supra). 
Whether, without such procedures, its ostensible conform­
ance to Cox’s constitutional standards satisfies Cox and the 
Constitution, presents a question of great moment which 
this court should grant certiorari to decide.



21

II.

Certiorari Should Be Granted to Decide Whether the 
Decision Below Conflicts With Bouie v. Columbia, 378 
U. S. 347 (1964), Because Petitioner Was Given No 
Fair Warning That He Was Required to Secure a Parade 
Permit A) Because Prior Decisions of This Court 
Taught Petitioner That He Need Not Submit to a Permit 
Ordinance Patently Unconstitutional on Its Face and 
B) Because Petitioner Only Participated in a Peaceful, 
Orderly and Nonobstructive Walk Along the Sidewalks 
of Birmingham.

A. Five years ago, petitioner was confronted with a 
parade ordinance which granted power to Birmingham 
officials to withhold a parade permit if “ in [their] . . . 
judgment the public welfare, peace, safety, health, decency, 
good order, morals or convenience” required it.

Leaving aside the question whether petitioner could fore­
see that the ordinance had any application to his activities 
(discussed in II B, infra), petitioner had ample authority 
in the decisions of this Court15 to be “ [u]nable to believe

15 Cox v. Louisiana, 379 II. S. 536, 553-558; Lovell v. Griffin, 303 
U. S. 444, 447, 451; Hague v. C. I. 0., 307 U. S. 496, 516; Schneider 
v. State, 308 U. S. 147, 157, 163-164; Cantwell v. Connecticut, 
310 U. S. 296, 305-307; Largent v. Texas, 318 U. S. 418, 422; Marsh 
v. Alabama, 326 U. S. 501, 504; Tucker v. Texas, 326 U. S. 517, 519- 
520; Saia v. New York, 334 U. S. 558, 559-560; Kunz v. New York, 
340 U. S. 290, 294; Niemotko v. Maryland, 340 U. S. 268, 271-272; 
Staub v. Baxley, 355 U. S. 313, 322-325; Jones v. Opelika, 316 
U. S. 584, 600-603 (Stone, C.J. dissenting), 611, 615 (Murphy, J. 
dissenting), dissenting opinions adopted per curiam on rehearing, 
319 U. S. 103, cf. Shuttlesworth v. Birmingham, 382 U. S. 87, 90; 
Freedman v. Maryland, 380 U. S. 51, 56.



22

that such a blatant and broadly drawn prior restraint 
on . . . First Amendment rights could be valid.” 18

Moreover, petitioner had good reason to believe that the 
Griffin-Staub principle discussed in Part I, supra, allowed 
him to refuse to submit to and then challenge this blatant 
and broadly drawn prior restraint on First Amendment 
rights. Even if the Alabama Supreme Court’s judicial 
repealer of § 1159 is held to meet the Cox standards, and 
even if the Griffin-Staub principle is held not to shield from 
punishment those citizens who succeed, by challenging 
such a blatant prior restraint, in limiting it, at least peti­
tioner and the 1500 other Birmingham civil rights demon­
strators arrested in the Easter week, 1963 marches should 
not be punished for their reliance upon this principle. 
Punishment of this sort, for conduct expressly validated 
by long-settled and repeated decisions of the highest Court 
of the land, would plainly affront the ordinary principles 
of mens rea common to the criminal law. Cf. James v. 
United States, 366 U. S. 213 (1961). We submit that it 
would violate, as well, the rudimentary guarantee of fair 
notice imposed on state criminal procedure by the Due 
Process Clause, see Bouie v. Columbia, 378 IJ. S. 347 (1964), 
and urge that certiorari be granted to so decide.

B. Petitioner was convicted for taking part in a peace­
ful protest demonstration consisting of 52 persons walking 
two abreast in an orderly and nonobstructive manner on 
the public sidewalks of Birmingham, Alabama. His crime 
was that he had not obtained a permit from Birmingham 
authorities to do so. 16

16 Walker v. City of Birmingham, supra, 388 U. S. at 327 (opin­
ion of Warren, C.J.).



23

In the courts below, petitioner maintained that there 
was insufficient evidence to sustain the charge that he 
participated in “ a parade or procession on the streets of 
the city”  (Complaint, R. I, 3). Put another way, peti­
tioner denied that he required a parade permit to do what 
he did.

The Court of Appeals of Alabama agreed, holding (R. I, 
116, 118; 180 So. 2d at 139; App., pp. 65a, 67a, infra):

Here, we consider the proof . . . fails to show a 
procession which would require, under the terms of 
§ 1159, the getting of a permit.

# # # * = *
We emphasize that we have only before us a walk­

ing on city sidewalks. In the use of the roadway 
probably less stringent standards of construction 
would prevail against the prosecutor.

This holding was fully consistent with the history of the 
operation and enforcement of § 1159. The permit-issuing 
authorities did not issue permits for walking on the side­
walk (R. I, 33). The police did not usually arrest persons 
for walking on the sidewalks; when they did, the courts 
did not sustain such convictions.17

Notwithstanding the prior operation, enforcement and 
construction of § 1159, the Supreme Court of Alabama 
held that there was sufficient evidence of a “parade” to 
constitute a violation of the ordinance (R. II, 21; App.,

17 See Primm v. City of Birmingham, 42 Ala. App. 657, 177 So. 2d 
326 (Ct. App. Ala. 1964).



24

p. 12a, infra).18 In doing so, the court below brought itself 
into conflict with the doctrine of Bowie v. Columbia, 378 
IT. S. 347 (1964).

In Bouie, the Court held violative of the due process 
clause of the Fourteenth Amendment convictions under a 
statute which had been “unforeseeably and retroactively 
expanded by judicial construction” (378 U. S. at 352). 
Prior to the Supreme Court of Alabama’s decision in this 
case, the term “parade” had a fairly certain meaning in 
Birmingham. A  “ parade” included bands and vehicles (R. 
I, 33); it occurred in the streets, not on the sidewalks 
(R. I, 33); it contained, the ordinance assumed, “persons, 
vehicles and animals.”

Otherwise, there would be little justification for having 
a permit system at all. A permit system is justified by the 
fact that a person wishing to hold a “ parade” , in the ac­
cepted sense, i.e., with bands and/or vehicles, requires the 
exclusive enjoyment of particular streets at a particular 
time. A  permit system gives “ the public authorities notice 
in advance so as to afford opportunity for proper policing” 
(Cox v. New Hampshire, supra, 312 II. S. at 576).

That rationale has no application here. It is undisputed 
that petitioner’s use of the sidewalks of Birmingham at 
approximately 2 :15 p.m. on April 12, 1963, was in no way 
inconsistent with the use by other citizens of Birmingham 
of those very same sidewalks at that very same time. The 
Court of Appeals correctly held (R. I, 117; 180' So. 2d at 
139; App., p. 66a, infra) :

18 “We see no occasion to deal at length with the holding . . . 
[below] that the evidence was insufficient to show that Shuttles- 
worth had engaged in a parade . . . ” (R. II, 21; App., p. 12a, infra).



25

The City failed to show whether or not other pedes­
trians were run off the sidewalk, blocked either in 
access, process or transit.19

Having reference then to the theory and practice of the 
Birmingham parade ordinance, petitioner had no fair warn­
ing that his participation in a peaceful, orderly and non- 
obstructive walk on the sidewalks of Birmingham required 
a parade permit.

Petitioner may now be on notice for the future. It may 
now be that football fans on their way to the stadium with­
out a parade permit risk prosecution under § 1159, should 
city authorities “ choose so vigorously to protect the side­
walks of Birmingham.” 20 Whether or not21 that is now the 
state of the law, one thing is clear: The court below’s un­
foreseeable and retroactive application of the Birmingham 
parade ordinance to petitioner appears inconsistent with 
Bouie v. Columbia, supra.

19 Cf. Cox v. New Hampshire, supra, 312 U. S. at 573:
The marchers interfered with the normal sidewalk travel, but 
no technical breach of the peace occurred.

20 Shuttlesworth v. Birmingham, 382 U. S. 87, 100 (1965) (con­
curring opinion of Fortas, / . ) .

21 “ If one were to confine oneself to the surface version of the 
facts, a general alarm for the people of Birmingham would be in 
order. Their use of the sidewalks would be hazardous beyond 
measure.”  Shuttlesworth v. Birmingham, 382 U. S. 87, 101 (1965) 
(concurring opinion of Fortas, J.).



26

CONCLUSION

For the foregoing reasons, the petition for writ of 
certiorari should be granted.

Respectfully submitted,

J ack  G reenberg
J am es M. N abrit , I I I
N orman  C. A m aker
C harles S tephen  R alston
M elvyn  Z arr

10 Columbus Circle 
New York, New York 10019

A n th o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

A rth u r  D. S hores
1527 Fourth Avenue North 
Birmingham, Alabama 35203

Orzell  B illin gsley , J r .
1630 Fourth Avenue North 
Birmingham, Alabama 35203

Attorneys for Petitioner



A P P E N D I X



la

APPENDIX

Opinion of the Supreme Court of Alabama

THE SUPREME COURT OF ALABAMA 

T h e  S tate of A labam a— J udicial D epartm ent  

O ctober T erm  1967-68

November 9, 1967

6 Div. 291
---------------------------- — —— — --- ----------------------- -- -

Ex parte City of Birmingham

In re F red L. S h u ttlesw orth

—v.—

C ity  of B ir m in g h a m .

petition  for certiorari to court of appeals

L aw son , Justice.

Fred L. Shuttlesworth was convicted in the Recorder’s 
Court of the City of Birmingham of parading without a 
permit in violation of §1159 of the General City Code of 
Birmingham, hereinafter referred to as §1159, which reads:

“ It shall be unlawful to organize or hold, or to as­
sist in organizing or holding, or to take part or par­
ticipate in, any parade or procession or other public



2 a

demonstration, on the streets or other public ways of 
the city, unless a permit therefor has been secured 
from the commission.

“ To secure such permit, written application shall be 
made to the commission, setting forth the probable 
number of persons, vehicles and animals which will 
be engaged in such parade, procession or other public 
demonstration, the purpose for which it is to be held 
or had, and the streets or other public ways over, along 
or in which it is desired to have or hold such parade, 
procession or other public demonstration. The com­
mission shall grant a written permit for such parade, 
procession or other public demonstration, prescribing 
the streets or other public ways which may be used 
therefor, unless in its judgment the public welfare, 
peace, safety, health, decency, good order, morals or 
convenience require that it be refused. It shall be un­
lawful to use for such purposes any other streets or 
public ways than those set out in said permit.

“ The two preceding paragraphs, however, shall not 
apply to funeral processions.”

The word “commission” as used in §1159 refers to the 
governing body of the City of Birmingham.

Following his conviction in the Recorder’s Court, 
Shuttlesworth appealed to the Circuit Court of Jefferson 
County, where there was a de novo trial before a jury. 
The jury found Shuttlesworth guilty and the trial court, 
after rendering a judgment in accordance with the verdict 
of the jury, sentenced Shuttlesworth to pay a fine of $75 
and to perform ninety days hard labor for the City of 
Birmingham.



3a

Shuttlesworth then appealed to the Court of Appeals of 
Alabama which court, in a two-to-one decision, reversed 
the judgment of the Circuit Court of Jefferson County and 
rendered a judgment discharging Shuttlesworth “ sine die.” 
Judge Cates wrote the majority opinion, in which Presid­
ing Judge Price concurred. Judge Johnson dissented.— 
Shuttlesworth v. City of Birmingham, 43 Ala, App. 68, 180 
So. 2d 114.

The City of Birmingham fded petition in this court for a 
writ of certiorari to review and revise the opinion and 
judgment of the Court of Appeals. We granted the writ.

While we are not altogether certain as to the exact rea­
sons why the majority of the Court of Appeals concluded 
that Shuttlesworth’s conviction should be reversed and that 
he should be discharged sine die, we will treat that opinion 
as holding that §1159 is void on its face because of over­
broad and consequently meaningless standards for the issu­
ance of permits for parades or processions; that said sec­
tion has been enforced by the City of Birmingham in such 
a way as to make it unconstitutional under the holding of 
the Supreme Court of the United States in Yick Wo v. 
Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; that 
the evidence adduced by the City o f Birmingham in the 
trial in the circuit court was insufficient to present a jury 
question as to whether Shuttlesworth had, in fact, been 
engaged in a parade, procession or other public demon­
stration in the streets or other public ways of the City of 
Birmingham without first having obtained a permit as re­
quired by §1159.

In view of the fact that there was a dissenting opinion, 
we have gone to the original record to determine the facts.

The majority opinion of the Court of Appeals does not 
contain a complete statement of the facts. However, the



4a

dissenting opinion of Judge Johnson contains a rather 
lengthy recitation of the facts and our examination of the 
original record shows that the facts as stated in the dis­
senting opinion are fully supported by the record.

The dissenting opinion, unlike the majority opinion of 
the Court of Appeals, takes cognizance of the rule so often 
stated by the appellate courts of this state, to the effect 
that it is the duty of courts not to strike down a city ordi­
nance or a statute as unconstitutional, if by reasonable con­
struction it can be given a field of operation within con­
stitutional limits and that where a statute or ordinance is 
susceptible of two constructions, one of which will defeat 
the ordinance or statute and the other will uphold it, the 
latter construction will be adopted.

With that rule in mind, Judge Johnson proceeds to con­
strue §1159, saying:

“ I think it is obvious that this ordinance— Section 
1159'—was not designed to suppress in any manner 
freedom of speech or assembly, but to reasonably regu­
late the use of the streets in the public interest. If 
does not seek to control what may be said on the 
streets, and is applicable only to organize [sic] for­
mations of persons, vehicles, etc., using the streets and 
not to individuals or groups not engaged in a parade 
or procession. The requirement that the applicant for 
a permit state the course to be travelled, the probable 
number of persons, vehicles and animals, and the pur­
pose of the parade is for the purpose of assisting 
municipal authorities in deciding whether or not the 
issuance of a permit is consistent with traffic condi­
tions. Thus, the required information is related to the 
proper regulation of the use of the streets, and the 
fact that such information is required indicates that



5a

the power given the licensing authority was not to be 
exercised arbitrarily or for some purpose of its own. 
The requirement that the applicant state the purpose 
of the parade or procession does not indicate an intent 
to permit the Commission to act capriciously or arbi­
trarily. The purpose may have a bearing on precau­
tions which should be taken by municipal authorities 
to protect parades or the general public.

“ Section 1159, supra, provides that the Commission 
shall issue a permit ‘unless in its judgment the public 
welfare, peace, safety, health, decency, good order, 
morals or convenience require that it be refused.’ I do 
not construe this as vesting in the Commission an un­
fettered discretion in granting or denying permits, but, 
in view of the purpose of the ordinance, one to be 
exercised in connection with the safety, comfort and 
convenience in the use of the streets by the general 
public. The standard to be applied is obvious from the 
purpose of the ordinance. It would be of little or no 
value to state that the standard by which the Commis­
sion should be guided is safety, comfort and conven­
ience of persons using the streets, and, due to varying 
traffic conditions and the complex problems presented 
in maintaining an orderly flow of traffic over the 
streets, it would be practically impossible to formu­
late in an ordinance a uniform plan or system relat­
ing to every conceivable parade or procession. The 
members of the Commission may not act as censors 
of what is to be said or displayed in any parade. If 
they should act arbitrarily, resort may be had to the 
courts. It is reasonable to assume from the facts in 
this case that the Commission would have granted ap-



6a

pellant a permit to engage in the parade if such per­
mit had been sought. A  denial would have been war­
ranted only if after a required investigation it was 
found that the convenience of the public in the use 
of the streets at the time and place set out in the 
application would be unduly disturbed” (180 So. 2d, 
144).

We agree with and adopt the construction which Judge 
Johnson has placed on §1159 and we agree with his obser­
vations to the effect that such construction finds support 
in the case of State v. Cox, 91 N. H. 137, 16 Atl. 2d 508, 
which case was affirmed, in a unanimous decision, by the 
United States Supreme Court.— Cox v. State of New 
Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049.

The New Hampshire Supreme Court, as is pointed out 
in Judge Johnson’s dissenting opinion, was called upon to 
determine the constitutionality of a state statute prohibit­
ing, among other things, a parade or procession on the 
streets without a permit from local authorities. The New 
Hampshire statute did not set out a standard for granting 
or refusing the permit. The language of the New Hamp­
shire court answering the assertion that the statute under 
consideration vested unwarranted control in the licensing 
authorities is quoted in Judge Johnson’s opinion and will 
not be repeated here.

In the New Hampshire case, the marchers were divided 
into four or five groups, each composed of about fifteen 
to twenty persons. Each group proceeded to a different 
part of the business district of the City of Manchester and 
then lined up in a single-file formation and marched along 
sidewalks of the city in such a formation. The marchers 
carried banners and distributed leaflets announcing a



7a

meeting to be held at a later time where a talk on govern­
ment would be given to tbe public free of charge. The 
marchers had no permit. Despite the fact that the marchers 
were carrying banners and distributing leaflets as well as 
marching, their conviction of parading without a permit 
was affirmed by the Supreme Court of New Hampshire.— 
State v. Cox, supra.

In affirming the judgment of the Supreme Court of New 
Hampshire, the Supreme Court of the United States in 
Cox v. New Hampshire, supra, said in part as follows:

“ The sole charge against appellants was that they 
were ‘ taking part in a parade or procession’ on public 
streets without a permit as the statute required. They 
were not prosecuted for distributing leaflets, or for 
conveying information by placards or otherwise, or 
for issuing invitations to a public meeting, or for hold­
ing a public meeting, or for maintaining or express­
ing religious beliefs. Their right to do any one of 
these things apart from engaging in a ‘parade or pro­
cession’ upon a public street is not here involved and 
the question of the validity of an ordinance addressed 
to any other sort of conduct than that complained of 
is not before us.

“There appears to be no ground for challenging the 
ruling of the state court that appellants were in fact 
engaged in a parade or procession upon the public 
streets. As the state court observed: ‘It was a march 
in formation, and its advertising and informatory pur­
pose did not make it otherwise. . . .  It is immaterial 
that its tactics were few and simple. It is enough that 
it proceeded in an ordered and close file as a collective 
body of persons on the city streets.’

# # # *  #



“ If a municipality has authority to control the use 
of its public streets for parades or processions, as it 
undoubtedly has, it cannot be denied authority to give 
consideration, without unfair discrimination, to time, 
place and manner in relation to the other proper uses 
of the streets. We find it impossible to say that the 
limited authority conferred by the licensing provisions 
of the statute in question as thus construed by the 
state court contravened any constitutional right” (312 
U. S., 573-576).

We would like to point out that we do not construe §1159 
as conferring upon the “ commission” of the City of Bir­
mingham the right to refuse an application for a permit 
to carry on a parade, procession or other public demonstra­
tion solely on the ground that such activities might tend 
to provoke disorderly conduct. See Edwards v. South Caro­
lina, 372 U. S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697.

We also hold that under §1159 the Commission is with­
out authority to act in an arbitrary manner or with un­
fettered discretion in regard to the issuance of permits. Its 
discretion must be exercised with uniformity of method 
of treatment upon the facts of each application, free from 
improper or inappropriate considerations and from unfair 
discrimination. A systematic, consistent and just order of 
treatment -with reference to the convenience of public use 
of the streets and sidewalks must be followed. Applica­
tions for permits to parade must be granted if, after an 
investigation it is found that the convenience of the public 
in the use of the streets or sidewalks would not thereby 
be unduly disturbed.

Since the Court of Appeals of Alabama rendered its deci­
sion and judgment in the case here under review, the Su-



9a

preme Court of the United States rendered a decision in a 
case wherein §1159 was involved. See Wyatt Tee Walker 
v. City of Birmingham, decided by the Supreme Court of 
the United States on June 12, 1967, 388 U. S. 307, 87 S. Ct.
1824,------ L. Ed. 2 d ------- . Application for rehearing was
denied on October 9, 1967. The Walker case, supra, was in 
the Supreme Court of the United States on writ of cer­
tiorari to review the opinion and judgment of this court 
in the case of Walker et al. v. City of Birmingham, 279 Ala. 
53, 181 So. 2d 493, wherein we affirmed the conviction of 
Walker and several others, including Shuttlesworth, of 
criminal contempt for violating a temporary injunction 
issued by the Circuit Court of Jefferson County, in Equity, 
which enjoined Walker, Shuttlesworth and others from en­
gaging in, sponsoring, inciting or encouraging mass street 
parades or mass processions or mass demonstrations with­
out a permit. The injunction enjoined the respondents 
from carrying on other activities which we do not think 
necessary to comment on here. In our case of Walker et al. 
v. City of Birmingham, 279 Ala. 53, 181 So. 2d 493, we did 
not expressly pass on the constitutionality of §1159, al­
though the petitioners, that is, Walker, Shuttlesworth and 
others, asserted that said §1159 is void because it violates 
the First and Fourteenth Amendments to the Constitution 
of the United States. Based on that premise, the said peti­
tioners also argued that the temporary injunction was void 
as a prior restraint on the constitutionally protected rights 
of freedom of speech and of assembly.

Our affirmance of the criminal contempt convictions was 
based on the principle “ that the circuit court had the duty 
and authority, in the first instance, to determine the va­
lidity of the ordinance, and, until the decision of the circuit 
court is reversed for error by orderly review, either by the



10a

circuit court or a higher court, the orders of the circuit 
court based ou its decision are to be respected and dis­
obedience of them is contempt of its lawful authority, to 
be punished. Howat v. State of Kansas, 258 TJ. S. 181, 42 
S. Ct. 297, 66 L. Ed. 550.”

As we have heretofore indicated, the Supreme Court of 
the United States on June 12, 1967, affirmed our judgment 
in Walker et al. v. City of Birmingham,, 279 Ala. 53, 181 
So. 2d 483. The Supreme Court of the United States di­
vided five to four. It appears from the Court’s opinion, 
written by Mr. Justice Stewart, and from, the opinions of 
the dissenting Justices, that the petitioners in the Supreme 
Court of the United States again asserted that §1159 was 
void on its face. The dissenting Justices expressed the 
view that §1159 is unconstitutional on its face.

However, the majority of the Court, as then constituted, 
did not hold that §1159 is void on its face. The Court’s 
opinion contains the following language:

“ The generality of the language contained in the 
Birmingham parade ordinance ['§1159] upon which 
the injunction was based would unquestionably raise 
substantial constitutional issues concerning some of 
its provisions. Schneider v. State, 308 U. S. 147, 60 
iS. Ct. 146, 84 L. Ed. 155; Saia v. People of State of 
New York, 334 U. S. 558, 68 S. Ct. 1148, 92 L. Ed. 
1574; Kunz v. People of State of New York, 34 U. S. 
290, 71 S. Ct. 312, 95 L. Ed. 280. The petitioners, how­
ever, did not even attempt to apply to the Alabama 
courts for an authoritative construction of the ordi­
nance. Had they done so, those courts might have given 
the licensing authority granted in the ordinance a nar­
row and precise scope, as did the New Hampshire 
Courts in Cox v. New Hampshire [312 U. S. 579, 71



11a

S. Ct. 762, 85 L. Ed. 1049] and Ponlos v. New Hamp­
shire [345 U. S. 395, 73 S. Ct. 760, 97 L. Ed. 1105], 
both supra. € f. Shuttlesworth v. City of Birmingham, 
382 U. S. 87, 91, 86 S. Ct. 211, 213, 15 L. Ed. 2d 176; 
City of Darlington v. Stanley, 239 S. Ct. 139, 122 S. E. 
2d 207. Here, just as in Cox and Poulos, it could not 
be assumed that the ordinance was void on its face.”  
(Emphasis supplied) (87 S. Ct., 1830)

The language which we have just italicized seems to us 
to be in direct conflict with the conclusion reached in the 
majority opinion of the Court of Appeals of Alabama here 
under review.

We are of the opinion that the construction which Judge 
Johnson placed on §1159 in his dissenting opinion, which 
we have in effect adopted, together with the construction 
which we have placed on §1159 in this opinion, requires a 
reversal of the judgment of the Court of Appeals here 
under review.-—Cox v. New Hampshire, 312 U. S. 569, 61 
S. Ct, 762, 85 L. Ed. 1049; Walker et al. v. City of Birming­
ham, 388 U. S. 307, 87 S. Ct. 1824, —  L. Ed. 2 d ------ .

We hold that §1159 is not void on its face and that under 
the construction which we have placed on that section, it 
did not deprive Shuttlesworth of any right guaranteed to 
him under the First and Fourteenth Amendments to the 
Constitution of the United States.

We are also in accord with the conclusion reached by 
Judge Johnson in his dissenting opinion to the effect that 
there is nothing in the record before us tending to show 
that §1159 has been applied in other than a fair and non- 
diseriminatory fashion. The record before us shows no 
violation of Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 
1064, 30 L. Ed. 220.



12a

The petitioners in the case of Wyatt Tee Walker et al.
v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824,------
L. Ed 2d ------ , decided by the Supreme Court of the
United States on June 12, 1967, asserted that they were 
free to disobey the injunction because §1159, on which the 
injunction was based, had been administered in an arbi­
trary and discriminatory fashion. In support of that con­
tention those petitioners had sought to introduce evidence 
in the trial court to the effect that a few days before the 
injunction issued requests for permits to picket had been 
made to a member of the" City Commission and one request 
had been rudely refused and that this same official had 
later made it clear that he was without power to grant the 
permit alone, since the issuance of permits was the re­
sponsibility of the entire Commission. The Supreme Court 
of the United States, in answering that contention, said as 
follows: “Assuming the truth of the proffered evidence, 
it does not follow that the parade ordinance is void on its 
face.”

We see no occasion to deal at length with the holding or 
observation contained in the majority opinion of the Court 
of Appeals of Alabama to the effect that the evidence was 
insufficient to show that Shuttlesworth had engaged in a 
parade on the “ streets or other public ways of the City of 
Birmingham without a permit.”  The evidence as delineated 
in the dissenting opinion of Judge Johnson, in our opinion, 
clearly shows that such a violation occurred.

We can see no merit in the position apparently taken in 
the majority opinion of the Court of Appeals of Alabama 
to the effect that since the marchers paraded on the side­
walks of the City of Birmingham rather than in the streets, 
there had been no violation of said §1159.

Section 2 of the General City Code of Birmingham of 
1944 reads in part:



13a

“ Sec. 2. Definitions and rules of construction.

“ In the construction of this code and of all ordi­
nances, the following definitions and rules shall be ob­
served, unless the context clearly requires otherwise. 

* * * * *
“ Sidewalk: The term ‘sidewalk’ shall mean that por­

tion of a street between the curb line and adjacent 
property line.”

It is appropriate to note that the statute under con­
sideration in the case of State v. Cox, 91 N. H. 137, 16 Atl. 
2d 508, prohibited a parade or procession on streets with­
out a permit from local authorities. The parade or pro­
cession in which Cox was involved occurred on the side­
walks of the city of Manchester. Neither the Supreme 
Court of New Hampshire nor the Supreme Court of the 
United States took the position that the statute involved 
did not apply to sidewalks as well as to the portion of the 
street generally used by vehicular traffic. Cox’s conviction 
of parading without a permit was upheld by the courts.

We are aware of the fact that ordinances somewhat simi­
lar to §1159 have been declared unconstitutional in two 
recent federal cases. See Gayat v. Pierce (U. iS. Court of 
Appeals, 5th Circuit), 372 F. 2d 658; Baker et al. v. Binder, 
decided in the United States District Court for the West­
ern District of Kentucky at Louisville. That was a three- 
judge court, with one judge dissenting. No reference was 
made in the opinions delivered in those cases to Walker 
et al. v. City of Birmingham, 388 U. S. 307, 87 S. 'Ct. 1S24,
■------  L. Ed. 2d ------ . Perhaps we have placed too much
reliance on Walker et al. v. City of Birmingham, 388 U. S. 
307, 87 S. Ct. 1824, —— L. Ed. 2d ------ , and on Cox v.



14a

New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 
1049. We may have misinterpreted the opinions in these 
cases. If so, we will no doubt be set straight.

In view of the foregoing, the judgment of the Court of 
Appeals is reversed and the cause is remanded to that 
court.

R eversed and  R emanded.

Livingston, C. J., Goodwyn, Merrill, Coleman and Har­
wood, JJ., concur.



15a

Judgment of the Supreme Court of Alabama

THE SUPREME COURT OF ALABAM A 

T h e  S tate of A labam a— J udicial D epartm ent  

O ctober T erm  1967-68

November 9, 1967
6th Div. 291 

C /A  6th Div. 979

Ex parte: City of Birmingham, 
a Municipal Corporation

PETITION FOR WRIT OF CERTIORARI TO COURT OF APPEALS

(Re:  Fred L. Shuttlesworth v. City of Birmingham)

W hereas, on January 20, 1966, the Writ of Certiorari 
to the Court of Appeals was granted, and said cause was 
set down for submission on briefs or oral argument;
WHEREUPON,

Comes the petitioner, by its attorney, and the Petition 
for Writ of Certiorari to the Court of Appeals being sub­
mitted on briefs and duly examined and understood by the 
Court, it is considered that in the record and proceedings 
of the Court of Appeals there is manifest error.



16a

I t is therefore ordered and adjudged that the judgment 
of the Court of Appeals be reversed and annulled and the 
cause remanded to said Court for further proceedings 
therein.

I t is furth er  ordered and adjudged that the costs inci­
dent to this proceeding be taxed against the respondent, 
Fred L. Shuttlesworth, for which costs let execution issue.



17a

Opinion of the Court of Appeals of Alabama

THE ALABAM A COURT OF APPEALS 

T he  S tate o f  A labama— J udicial D epartment 

O ctober T erm , 1965-66

November 2, 1965
6 Div. 979

F red L. S hu ttlesw orth

v.

Cit y  op B irm in g h am

APPEAL PROM JEFFERSON CIRCUIT COURT

Cates, Judge:

This appeal was submitted February 27, 1964, and was 
originally assigned to J ohnson , J.

Shuttlesworth was convicted by a jury in a circuit court 
trial de novo. The City charged him with a breach of its 
ordinance against parading without a permit. §1159, Gen­
eral City Code of 1944.1

1 “It shall be unlawful to organize or hold, or to assist in organiz­
ing or holding, or to take part or participate in, any parade or 
procession or other public demonstration on the streets or other 
public ways of the city, unless a permit therefor has been secured 
from the commission.

“ To secure such permit, written application shall be made to the 
commission, setting forth the probable number of persons, vehicles 
and animals which will be engaged in such parade, procession or



18a

Pursuant to verdict, the trial judge adjudicated him 
guilty, fined him $75.00 and costs, and also sentenced him 
to ninety days hard labor for the City.

There are three questions for decision: (1) whether
§1159, supra, denies, on its face, due process of law; (2) 
whether or not the ordinance as applied violates Yick Wo 
v. Hopkins, 118 U. S. 356; and (3) the sufficiency of the 
evidence.

I.

Pacts

About two o’clock, P. M., Good Friday, April 12, 1963, 
some fifty-two persons issued from a church on Sixth Ave­
nue, North, in Birmingham. They went easterly on the 
sidewalk of Sixth Avenue crossing Fifteenth and Sixteenth 
Streets. At Seventeenth Street they turned south, then 
at Fifth Avenue east again.

The defendant was one of the first to emerge from the 
church. Various city policemen saw him thereafter, some­
times walking along with and sometimes alongside the 
others, once bounding from front to rear.

The group went along sometimes two, sometimes three, 
sometimes four, and at one time a witness saw one rank 
of six abreast. This observed bunching up coincided with

other public demonstration, the purpose for which it is to be held 
or had, and the streets or other public ways over, along or in which 
it is desired to have or hold such parade, procession or other public 
demonstration. The commission shall grant a written permit for 
such parade, procession or other public demonstration, prescribing 
the streets or other public ways which may be used therefor, unless 
in its judgment the public welfare, peace, safety, health, decency, 
good order, morals or convenience require that it be refused. It 
shall be unlawful to use for such purposes any other streets or 
public ways than those set out in said permit.

“ The two preceding paragraphs, however, shall not apply to 
funeral processions.”



19a

the promenaders being blocked by officers parking police 
ears athwart the crossing at Fifth Avenue and Eighteenth 
Street.

There was no evidence that any of the group jaywalked, 
or that they got into the vehicular roadway except at des­
ignated cross walks. Nor did they obstruct cars or pe­
destrians nor disobey any traffic lights, or officers directing 
traffic. The only tendency toward showing disorderly con­
duct lay in evidence that some of the group sang and 
clapped hands.

The defense adduced no permit for a procession or pa­
rade nor was there evidence of anyone applying for a 
permit. Conversely, the City’s proof showed no permit of 
record for the day in question.

II.

Background

A procession has been described as an assembly in mo­
tion. 72 C. J. S., p. 1204, states:

“  * * * a group, especially of persons or of vehicles 
containing persons, moving onward in an orderly, 
ceremonious, or solemn manner; an orderly file or 
formation, especially of marchers; a parade.”

The essence seems to lie in the group’s having ad hoc and 
pro tempore exclusive possession of all or part of a public 
way.

Early—probably when in the grip of his fondness for 
referring to the public as the “ Mob”—Holmes, J., in Com­
monwealth v. Davis, 162 Mass. 510, 39 N. E. 113, spawned 
what Judge Conway of the New York Court of Appeals 
characterized as “ the plenary power [o f public officers]



20a

over use of streets and parks.” P. v. Kims, 300 N. Y. 273, 
90 N. E. 2d 455, at 462. Cf. Runs v. New York, 340 U. S. 
290.

However, though the Davis case was approved in the 
United States Supreme Court (167 IT. S. 43), its assurance 
has been eroded by later First-Fourteenth Amendment 
cases beginning with Hague v. Committee, 307 U. S. 496.

Consequently in 1941, we find the court saying in Com­
monwealth v. Anderson, 308 Mass. 370, 32 N. E. 2d 684 
(hn. 2), concerning an ordinance of Boston as applied to 
a Jehovah’s Witness:

“ * * # there is no suggestion in the agreed facts that 
the defendant was obstructing traffic, causing danger, 
or annoying travellers in any way, or that the form 
of the placards or the writing upon them was indecent, 
libellous, likely to incite violence or otherwise objec­
tionable. Nor do the terms of the ordinance itself limit 
its prohibition to instances where these or similar con­
ditions exist. The particular case here presented is one 
of the unqualified interdiction of a wholly inoffensive 
display of placards on a public street unless the de­
fendant should submit to the requirement that he first 
obtain a permit. Whatever result might be reached 
if the ordinance, by its wording, affected only carefully 
defined instances of conduct actually inimical to the 
public interest, or if the proof had disclosed such 
conduct, we must at least conclude that under decisions 
by which we are bound the application of this ordinance 
to this defendant in this instance violated his consti­
tutional right to do what he did without a previous 
permit from anyone. * * # ”



2 1 a

And in the same volume on a consolidated appeal, Com­
monwealth v. Pascone, 308 Mass. 591, 33 N. E. 2d 522, we 
find the same rule again applied with a precise distinction 
of ratio decidendi in affirming the second case.

Moreover, in express terms the Massachusetts court, in 
1947, comes to grips with the Davis case, supra, Common­
wealth v. Gilfedder, 321 Mass. 335, 73 N. E. 2d 241 (hn. 3). 
The opinion confesses puzzlement at how the Supreme 
Court could speak as it did to its judgment in Hague and 
yet not have overruled Davis, supra. The Gilfedder opinion 
by the distinguished Justice (and later Chief Justice) Qua 
is worthy of close study as a persuasive and considered 
precedent as to the use of parks by the public.

Hague was decided in 1939. The history of Mayor 
Hague’s resistance to union activity of virtually all sorts 
cannot be ignored. Nor can that factor be gainsaid in 
assessing the 5-2 division in the then membership of the 
court. The opening paragraph, 307 U. S., at 500, is:

“ The judgment of the court in this case is that the de­
cree is modified and as modified affirmed. Mr . J ustice 
F rankfurter  and M r . J ustice D ouglas took no part 
in the consideration or decision of the case. M r . J us­
tice R oberts has an opinion in which M r . J ustice 
B lack  concurs, and Mr. J ustice S tone an opinion in 
which M r . J ustice R eed concurs. The Ch ief  J ustice 
concurs in an opinion. M r . J ustice M cR eynolds and 
M r . J ustice B utler  dissent for reasons stated in opin­
ions by them respectively.”

Carefully analyzed it is obvious that only Mr. Justice 
Butler (in dissent) was expressly willing to stand by Davis 
v. Massachusetts, 167 U. S. 43.



22a

Roberts, J.,3 said of Davis4 (515):

“ The ordinance there in question apparently had a dif­
ferent purpose from that of the one here challenged, 
for it was not directed solely at the exercise of the 
right of speech and assembly, but was addressed as 
well to other activities, not in the nature of civil rights, 
which doubtless might be regulated or prohibited as 
respects their enjoyment in parks. In the instant ease 
the ordinance deals only with the exercise of the right 
of assembly for the purpose of communicating views 
entertained by speakers, and is not a general measure 
to promote the public convenience in the use of the 
streets or parks.”

After pointing out that the Jersey City ordinance ex­
plicitly required permits only for public parades or as­
semblies, he made this oft quoted statement:

“ * * * Wherever the title of streets and parks may 
rest, they have immemorially been held in trust for the 
use of the public and, time out of mind, have been used 
for purposes of assembly, communicating thoughts be­
tween citizens, and discussing public questions. Such 
use of the streets and public places has, from ancient 
times, been a part of the privileges, immunities, rights, 
and liberties of citizens. The privilege of a citizen of 
the United States to use the streets and parks for com-

3 The writer suspects that Mr. Justice Roberts in Hague, was 
chary of “ re-examination of constitutional principles” and hence 
chose to follow the English practice of distinguishing a prior prece­
dent into such narrow confines that its immurement is that of a 
tomb.

4 The Boston ordinances banned (without a permit from the 
Mayor) firing cannons, or firearms, hawking goods, setting up shows, 
etc., as well as public addresses.



23a

nranication of views on national questions may be 
regulated in the interest of all; it is not absolute, but 
relative, and must be exercised in subordination to the 
general comfort and convenience, and in consonance 
with peace and good order; but it must not, in the guise 
of regulation, be abridged or denied.

“ We think the court below was right in holding the 
ordinance quoted in Note 1 void upon its face. It does 
not make comfort or convenience in the use of streets 
or parks the standard of official action. It enables the 
Director of Safety to refuse a permit on his mere 
opinion that such refusal will prevent ‘riots, distur­
bances or disorderly assemblage.’ It can thus, as the 
record discloses, be made the instrument of arbitrary 
suppression of free expression of views on national af­
fairs, for the prohibition of all speaking will un­
doubtedly ‘prevent’ such eventualities. But uncon­
trolled official suppression of the privilege cannot be 
made a substitute for the duty to maintain order in 
connection with the exercise of the right.”

At this point we pick up the decisions which follow in 
the train of the Hague case. The early ’40’s saw the emer­
gence of the Jehovah’s Witnesses cases.5

In Lovell v. Griffin, 303 U. S. 444, the court had held void 
an ordinance prescribing a permit to distribute literature.

Then after Hague, in 1939, we find:

Schneider v. State, 308 U. S. 147 (1939);
Carlson v. California, 310 U. S. 106 (1940);
Jamison v. Texas, 318 U. S. 413 (1943);

5 See Harper, Justice Rutledge and the Bright Constellation, 46, 
et seq.



24a

Largent v. Texas, 318 U. S. 418 (1943);
Jones v. Opelika, 319 U. S. 103 (1943);
Murdock v. Pennsylvania, 319 U. S. 105 (1943);
Saia v. New York, 334 U. S. 558 (1948);
Runs v. New York, 340 U. S. 290 (1951);
Gelling v. Texas, 343 U. S. 960 (1952);
Fowler v. Rhode Island, 345 IT. S. 67 (1953); and
Staub v. City of Baxley, 355 IT. S. 313 (1958).

Against this array, however, stands Cox v. New Hamp­
shire, 312 IT. S. 569, which, unlike the multi-opinion Hague 
decision, came from an unanimous court speaking through 
Hughes, C. J. This opinion relied heavily on the State 
Supreme Court’s construction in the same case. State v. 
Cox, 91 N. H. 137, 16 A. 2d 508.

Here, for affirmance, the City of Birmingham claims 
that Cox is decisive. Concededly, there are many similari­
ties between §1159 of the Birmingham Code of 1944 and the 
New Hampshire statute there in question.

Corresponding is the broad sweep of licensing: Thus 
from Cox, we find: “ * * * no parade or procession upon 
any public street or way * * * unless a special license there­
for * * * . ”  And of like tenor, §1159 reads: “ * * * un­
lawful to organize * * # any parade or procession or other 
public demonstration on the streets or other public ways 
* * * unless a permit * * # . ”

Administrative mechanics in each are similar. The New 
Hampshire Act made no exceptions other than to empower 
the city licensing committee or board to grant “ revocable 
blanket licenses” to fraternal and other like organizations, 
to theatres and undertakers.

However, the New Hampshire enactment applied not 
only to parades and processions but also to performances



25a

or exhibits comprising theatrical or dramatic representa­
tions as well as any open air public meeting upon any 
ground abutting on a street or public way.

Moreover, the New Hampshire court, State v. Cox, made 
no reference to any prior judicial or administrative inter­
pretation of the statute. Whereupon, the court proceeded 
to fill in by implication a variety of requirements: (1) rea­
sonableness; (2) uniformity of treatment of applications; 
and (3) freedom from improper or inappropriate considera­
tions and from unfair discrimination.

It was undoubtedly this gloss of “ a systematic consistent 
and just order of treatment” which facilitated affirmance in 
Cox v. New Hampshire, supra.

Since, however, the validity prima facie of §1159 has not 
been before any appellate court6 we find it necessary to 
examine the unfolding of cases since Cox. In Primm v.
City of Birmingham,------Ala. App. ------- , 177 So. 2d 326,
we found insufficient evidence.

In passing, we note that in McMearns v. City of Fort 
Deposit (Cr. 11, 759-N, IT. S. C., M. D., Alabama, Septem­
ber 30, 1965), [Frank M.] Johnson, J., held an identical 
ordinance of the City of Fort Deposit to be unconstitutional 
as applied to the facts.

Nevertheless there are at least two reasons which keep 
us from using the McMeans opinion as authoritative as to 
ShuttlesworthTs appeal.

First, the facts there recited disclose no parade or proces­
sion but rather only peaceful picketing within the protec­
tion of Thornhill v. Alabama, 310 IT. S. 88. Hotel <& Bestau-

6 A three-judge court presided over by Rives, J., in King v. City 
of Birmingham (Civil Action 63-196, U. S. D. C., N. D., Alabama, 
August 12, 1963), dissolved itself without taking up the constitu­
tionality of §1159.



26a

rant Emp. v. Greenwood, 249 Ala. 265, 30 So. 2d 696 (im.
21).

Second, the opinion states that the City appeared but did 
not seek a remand to its Recorder’s Court.

Third, we recognize that Judge [Frank M.] Johnson is 
under the review of, and to that extent is bound by, the 
decisions of the Fifth Circuit. Indeed, his opinion relies 
on Rachel v. Georgia, 342 F. 2d 336, and Peacoch v. City of 
Greenwood, 347 F. 2d 679, to justify removal under 28 
U. S. C. 1443.

We understand that Rachel is to be taken up for argu­
ment and submission by the Supreme Court of the United 
States7 at the current 1965-66 Term, probably in contrast 
with the Third Circuit’s denial of removal in Anderson v. 
City of Chester, Pennsylvania, 34 L. W. ------ .

III.

F irst  A m en d m en t  F reedoms

The last term of the Supreme Court effectively saw the 
Fourteenth Amendment incorporate—albeit hesitantly— 
the first eight amendments to the Federal Constitution as 
part of the due process laid upon the states. Cf. Black, J., 
dissenting in Adamson v. California, 332 U. S. 46, with the 
concurring opinions of Harlan and Goldberg, JJ., in 
Pointer v. Texas, 380 U. S. 400.

The First Amendment reads as follows:

“ Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise there­
of ; or abridging the freedom of speech, or of the press;

7 Sub nom. Georgia v. Rachel (No. 147, 1965-66 Term), ------ U. S.
------ , 34 L. Week 3101.



27a

or the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances.”

Cardozo, in The Paradoxes of Legal Science, at pages 
94-96, says:

“ ‘ * * * That ill deserves the name of confinement which 
hedges ns in only from bogs and precipices. So that 
however it may be mistaken, the end of law is not 
to abolish or restrain, but to preserve and enlarge 
freedom. For in all the states of created beings, ca­
pable of laws, where there is no law there is no free­
dom. For liberty is to be free from restraint and vio­
lence from others, which cannot be where there is no 
law; and is not, as we are told, “ liberty for every man 
to do what he lists.”  For who could be free, when 
every other man’s humour might domineer over him? 
But a liberty to dispose and order freely as he lists his 
person, actions, possessions, and his whole property 
within the allowance of those laws under which he is, 
and therein not to be subject to the arbitrary will of 
another, but freely follow his own.’ Modern research 
in social science has amplified the. thought of Locke, 
but without changing its essentials. [Citing Treatises 
on Civil Government, book 2, see. 57.]

“ ‘If liberty is a social conception,’ says Hobhouse, ‘there 
can be no liberty without social restraint. For any one 
person, indeed, there might be a maximum of liberty 
if all social restraints were removed. Where physical 
strength alone prevails the strongest man has un­
limited liberty to do what he likes with the weaker; 
but clearly the greater the freedom of the strong man, 
the less the freedom of the weaker. What we mean by



28a

liberty as a social conception is a right to be shared 
by all members of society, and very little consideration 
suffices to show that, in the absence of restraints en­
forced on or accepted by all members of a society, the 
liberty of some must involve the oppression of others. 
. . . Excess of liberty contradicts itself. In short there 
is no such thing; there is only liberty for one and 
restraint for another.’ ”

And at pages 97-99 he continues:

“Bills of rights give assurance to the individual of the 
preservation of his liberty. They do not define the 
liberty they promise. * * * Liberty became identified 
with the reign of law. ‘Freedom of men under govern­
ment,’ says Locke, ‘is to have a standing rule to live 
by, common to every one of that society and made by 
the legislative power erected in it.’ The individual may 
not be singled out from among his fellows, and made 
the victim of the shafts of malice. Those who are put 
over him ‘are to govern by promulgated established 
law, not to be varied in particular cases, but to have 
one rule for rich and poor, for the favorite at court 
and the countryman at plough.’

“ Up to this, there is no restraint upon the scope or 
force of law so long as it be law, i. e., so long as it be 
general or equal, a rule as contrasted with an ‘ex­
temporary decree.’ Liberty means more than this, how­
ever, as a concept of social science. It has come to 
mean more, at least in our own system, as a concept of 
constitutional law. The concept in our constitutional 
development has undergone a steady and highly sig­
nificant development. 'The individual may not only in­
sist that the law which limits him in his activities shall



impose like limits upon others in like circumstances. 
He will also be heard to say that there is a domain of 
free activity that may not be touched by government or 
law at all, whether the command be special against him 
or general against him and others. By express provi­
sion of the constitution, he is assured freedom of 
speech and freedom of conscience or religion. These 
latter immunities have thus the sanctions of a specific

. pledge, but they are merely phases of a larger im­
munity which finds expression in the comprehensive 
declaration that no one shall be deprived of liberty 
without due process of law. Such at least appears to 
be the more recent doctrine of the court that speaks 
the final word. Apart from any enumerated phase of 
liberty and beyond it, this declaration gives immunity 
against ‘the play and action of purely personal and 
aribtrary power.’ What is personal and arbitrary in 
mandate and restraint does not gain rationality and 
coherence because it takes the form of statute. The 
legislature does not speak with finality as to the mea­
sure of its own powers. The final word is for the 
courts.”

Holmes, J., dissenting in Abrams v. United States, 250 
U. S. 616, said:

“Persecution for the expression of opinions seems to 
me perfectly logical. If you have no doubt of your 
premises or your power and want a certain result with 
all your heart you naturally express your wishes in 
law and sweep away all opposition. To allow opposition 
by speech seems to indicate that you think the speech 
impotent, as when a man says that he has squared the 
circle, or that you do not care whole-heartedly for the 
result, or that you doubt either your power or your



premises. But when men have realized that time has 
npset many fighting faiths, they may come to believe 
even more than they believe the very foundations of 
their own conduct that the ultimate good desired is 
better reached by free trade in ideas— that the best 
test of truth is the power of the thought to get itself 
accepted in the competition of the market, and that 
truth is the only ground upon which their wishes safely 
can be carried out. That at any rate is the theory of 
our Constitution. It is an experiment, as all life is an 
experiment. Every year if not every day we have to 
wager our salvation upon some prophecy based upon 
imperfect knowledge. While that experiment is part 
of our system I think that we should be externally 
vigilant against attempts to check the expression of 
opinions that we loathe and believe to be fraught with 
death, unless they so imminently threaten immediate 
interference with the lawful and pressing purposes of 
the law that an immediate check is required to save 
the country. * * * ”

From Poulos v. State of New Hampshire, 345 TJ. S. 395, 
per Reed, J., we quote:

“ The principles of the First Amendment are not to be 
treated as a promise that everyone with opinions or 
beliefs to express may gather around him at any public 
place and at any time a group for discussion or instruc­
tion. It is a nonsequitur to say that First Amendment 
rights may not be regulated because they hold a pre­
ferred position in the hierarchy of the constitutional 
guarantees of the incidents of freedom. This Court 
has never so held and indeed has definitely indicated 
the contrary. It has indicated approval of reasonable



31a

nondiscriminatory regulation by governmental author­
ity that preserves peace, order and tranquillity without 
deprivation of the First Amendment guarantees of free 
speech, press and the exercise of religion. When con­
sidering specifically the regulation of the use of public 
parks, this Court has taken the same position. See 
the quotation from the Hague case below and Kunz v. 
People of State of New York, 340 U. S. 290, 293-294; 
Saia v. People of State of New York, 334 II. S. 558, 
562. In these cases, the ordinances were held invalid, 
not because they regulated the use of the parks for 
meeting and instruction but because they left complete 
discretion to refuse the use in the hands of officials. 
‘The right to be heard is placed in the uncontrolled 
discretion of the Chief of Police.’ 334 U. S. at page 
560, * * * ’ [W ]e have consistently condemned li­
censing systems which vest in an administrative offi­
cials discretion to grant or withhold a permit upon 
broad criteria unrelated to proper regulation of public 
places. 340 IJ. S. at page 294, * * #

“ There is no basis for saying that freedom and order 
are not compatible. That would be a decision of des­
peration. Regulation and suppression are not the 
same, either in purpose or result, and courts of justice 
can tell the difference. * * * ”

In Herndon v. Lowry, 301 IT. S. 242,8 and Freedman v. 
Maryland, 380 U. S. 51, the court refers in effect to the

8 “ The power of a state to abridge freedom of speech and of 
assembly is the exception rather than the rule and the penalizing 
even of utterances of a defined character must find its justification 
in a reasonable apprehension of danger to organized government. 
The judgment of the Legislature is not unfettered. The limitation 
upon individual liberty must have appropriate relation to the safety 
of the state. * * * ”



preferred position of First Amendment rights of freedom 
of expression. Thomas v. Collins, 323 U. S. 516. This pri­
ority is also used in Hague v. Committee, supra. Edwards 
v. South Carolina, 372 U. S. 229, and Cox v. Louisiana, 
379 U. S. 536, are recent examples of this formulation.

In our constitutional law freedom of expression can 
rarely be fettered by a prior restraint on its exercise. Black- 
stone, Comm, iv., 151, et seq., aptly said:

“ * * * The liberty of the press is indeed essential to the 
nature of a free state; but this consists in laying no 
previous restraint upon publications, and not in free­
dom from censure for criminal matter when pub­
lished. * * * ”

Moreover, abuse of free speech is tolerated more: the 
stifling is a worse mischief. Freedman v. Maryland, supra.

Whether we concede that the appellant did or did not 
participate in a “ procession” or “ parade,”  undisputedly he 
was arrested while walking on a sidewalk. Immediately 
beforehand he had participated, from aught that appears, 
in an orderly and presumably lawful assembly.

By merely forbidding citizens to go to (or from) the 
place of assembly, the right of peaceable assembly could 
easily be thwarted. Again we note Blackstone, Comm, i, 
134:

« * * * This personal liberty consists in the power of 
locomotion, of changing situation, or moving one’s per­
son to whatsoever place one’s own inclination may 
direct, without imprisonment or restraint, unless by 
due course of law. * * * ”



33 a

Also, the constitutional protection from unreasonable 
seizures applies to a seizing of the person. E x parte Bur- 
ford, 3 Cranch 448 (1806).

Hence, we consider ourselves bound to examine §1159, 
supra, giving preference (1) to the constitutional rights of 
free expression (e. g., free speech, publication) and of free 
assembly; and (2) to the implicit right to use the sidewalks 
for walking.

It is the recognition and regulation of this latter right 
as being nonexclusive which causes difficulty in legislating 
and in judicial review of the legislator’s choice. This enters 
into two enquiries: the extent of the power available to 
regulate and the mode of its exercise.

IV.

P olice P ower

Code 1940, T. 62, §654, relating solely to Birmingham, 
provides:

“ §654. The city shall have full, complete, unlimited, 
and continuous power and authority, from time to 
time, to adopt ordinances and regulations not incon­
sistent with the laws of the state and the federal and 
state Constitutions to carry into effect or discharge 
the powers and duties conferred by law upon the city, 
and to provide for the safety, preserve the health, pro­
mote the prosperity, improve the morals, orders, com­
fort, and convenience of the inhabitants of the city, 
and to prevent and punish injuries and offenses to the 
public therein, and to prevent conflict and ill feeling 
between the races in the city by making provisions for 
the use of separate blocks or parts of blocks for resi­



34a

dences, places of abode, and places of assembly by the 
different races,9 and to prevent evasions and punish 
violations of the ordinances and resolutions of the city, 
and to compel obedience thereto by fine not exceeding 
one hundred dollars and by imprisonment or hard 
labor not exceeding six months, one or both, and by 
revocation of license granted by such municipality upon 
conviction in the recorder’s court for violation of any 
of said ordinances; provided, however, that this sec­
tion shall not be construed to authorize the forfeiture 
of franchises granted by state laws or city ordinances 
without appropriate legal proceedings; and to the ends 
set out in this section the full, complete, and unlimited 
police powers possessed by the state of Alabama shall 
be had as though specifically and in detail set out in 
this section, in so far as it is possible for the legisla­
ture of Alabama under the Constitution of Alabama and 
of the United States to delegate such powers, it being 
expressly declared that nothing contained herein shall 
be construed as a limitation of or restriction on the 
police powers granted to the city under general or 
special laws.”

'The general municipal law, Code 1940, T. 37, §455, reads:

“ §455. Municipal corporations may, from time to time, 
adopt ordinances and resolutions not inconsistent with 
the laws of the state, to carry into effect or discharge 
the powers and duties conferred by this title, and pro-

9 City of B’ham. v. Monk, 185 F. 2d 859 (B ’ham. zoning ordi­
nance) ; Buchanan v. Warley, 245 U. S. 60 (1917) (Louisville, Ky., 
ordinance); Harmon v. Tyler, 273 U. S. 608 (1927) (New Orleans 
ordinance); City of Richmond v. Deans, 281 U. S. 704 (1930) 
Richmond, Va., ordinance). See also Robinson v. Florida, 375 
U. S. 918.



35a

vide for the safety, preserve the health, promote the 
prosperity, improve the morals, order, comfort, and 
convenience of the inhabitants of the municipality, and 
enforce obedience to such ordinances by fine not ex­
ceeding one hundred dollars, and by imprisonment or 
hard labor not exceeding six months, one or both.”

Police power, in 16 Am. Jur. 2d, Constitutional Law, 
§'262, is described (in part) thus:

“ While it is generally recognized that it is very difficult 
and practically impossible to give an exact definition 
of the police power, many attempts have been made. 
There is no consensus in favor of any of them, but these 
definitions are of considerable value as indicating the 
breadth and scope of this power.

“ The expression ‘police power,’ although capable of 
use, and sometimes used, in a restricted sense, is fre­
quently used very broadly to include all legislation and 
almost every function of civil government. Thus, it 
has been stated that the police power in effect sums 
up the. whole power of government, and that all other 
powers are only incidental and ancillary to the exe­
cution of the police power; it is that full, final power 
involved in the administration of law as the means to 
the attainment of practical justice. And it has been 
said that the power is only another name for that au­
thority which resides in every sovereignty to pass all 
laws for the internal regulation and government of the 
state, that it is the vast residual power of the state, 
and that it comprises that portion of the sovereignty 
of the state which is not surrendered by the terms of 
the Federal Constitution to the federal government.



36a

“ Blackstone defines police power as ‘ the. due regulation 
and domestic order of the kingdom, whereby the indi­
viduals of the state, like members of a well-governed 
family, are bound to conform their general behavior 
to the rules of propriety, good neighborhood, and good 
manners, and to be decent, industrious, and inoffensive 
in their respective stations. Many cases, employing the 
language of Chief Justice Shaw, define it as ‘the power 
vested in the legislature by the Constitution to make, 
ordain, and establish all manner of wholesome and 
reasonable laws, statutes, and ordinances, either with 
penalties or without, not repugnant to the Constitution, 
as they shall judge to be for the good and welfare of 
the commonwealth, and of the subjects of the same.’ ”

Knight, J., in State v. Kartus, 230 Ala. 352, 162 So. 533, 
said:

“ No one, at this time, we take it, would have the temerity 
to undertake to define the ‘police power’ of a state, or 
mark its limitations. * * * ”

In Hawkins v. City of Birmingham, 248 Ala. 692, 29 
So. 2d 281, Foster, J., said of T. 62, §654, supra (at p. 
696): “ This power is of course subject to be controlled.” 
See also City of Birmingham v. Birmingham Business Col­
lege, Inc., 256 Ala. 551, 56 So. 2d 111.

Concededly, if the Legislature confers the charter power, 
a city or town may ordain regulations for the use of its 
streets and sidewalks. This power cannot, however, extend 
beyond constitutional bounds.

We are presented with two conflicting concepts. First, 
the use of public ways is subject primarily to going to and



fro of the public generally, afoot on sidewalks, with the 
roadway mainly reserved for wheeled traffic.10

Secondly, free speech, the communication of ideas, and 
free assembly, locomotion, inhere in the use of public 
places.

At the outset, we believe that the early case of Common- 
wealth v. Davis, supra, treating public property as sub­
ject to power to be used exclusively in the will of public 
authorities as if they were private owners is no longer 
valid. Thomas v. Casey, 121 N. J. L. 185,1 A. 2d 866, rested 
on Davis. Hague v. Committee, supra, disapproved.

Police power11 has been held vital for society to hold 
together : the contrast often is given of anarchy, and not 
the philosophic nirvana-like anarchy. Law and order for 
the protection of the weak from the strong is in contrast 
to the law of the jungle.

Emergencies, however, do not create powers: rather they 
furnish the occasion for the exercise of those conferred. 
Constitutional law cannot raise itself by its own bootstraps. 
Homebuilding & Loan Assoc, v. Blaisdell, 290 U. S. 398.

We do not doubt that §654 of T. 62 and §455 of T. 37, 
supra, confer on the city the power to regulate the use of 
public streets and places in the interest of accommodating 
conflicting claims of vehicles and pedestrians. Yet, in so 
resolving traffic problems the State and Federal Constitu-

10 “Any person engaged in a lawful pursuit has the right to pass 
on the public streets without interference, threats or intimidation.” 
Russell v. International Union, 258 Ala. 615, 64 So. 2d 384. Nor is 
a pedestrian vis a vis a street railway running at grade to be deemed 
a trespasser. Birmingham, Ensley, etc., R.R. Co. v. Stagg, 196 Ala. 
612, 72 So. 164.

11 Jacobson v. Massachusetts, 197 U. S. 11 (smallpox vaccina­
tion) ; Lieberman v. Van de Carr, 199 U. S. 552 (milk delivery 
permit).



38a

tions impose a doty to recognize liberty within a concept 
of an ordered society.

Basically, we consider that a municipality or a state 
legislature can require that a permit be first obtained to 
use the vehicular portion of a street for a parade or pro­
cession. Moreover, if the movement overflows onto the 
pedestrian sidewalk the same ends for control would seem 
to obtain.

As to a group walking on the sidewalk of a dedicated 
street, spaced apart, not blocking others from going to 
or fro, nor interfering with cross traffic (either pedestrian 
or vehicular) and demeaning themselves in an orderly and 
peaceable fashion, we consider there is such a fundamental 
right to so use the sidewalk that a permit would be the 
exception. Thus, the City in such a case would have the 
burden of proving (beyond a reasonable doubt) that (1) no 
permit was issued and that (2) an abridgement of the 
rights (either of expression or of locomotion) is warranted 
by overriding considerations.

Picketing, as currently regulated by spacing the picketers 
(both as to fore and aft and abreast), keeping them cir­
culating and yielding the right of way to passers-by, af­
fords a useful illustration.

Ordinarily, a court in reviewing legislation will look at 
the remedy with the favoring intendment that all ration­
ally connected mischiefs passed through the collective mind 
of the lawmakers. Thus the inhibition of conduct—though 
sometimes partly innocent—can find support in the state’s 
police power if aimed at a substantial evil.

Nevertheless, this balancing in First Amendment cases 
finds the scales weighted in the beginning in favor of the 
freedom which is sought to be restrained. As Rutledge, J., 
said in Thomas v. Collins, supra, at 529-530:



39a

“ The ease confronts ns again with the duty onr system 
places on this Conrt to say where the individual’s 
freedom ends and the State’s power begins. Choice on 
that border, now as always delicate, is perhaps more 
so where the nsnal presumption supporting legislation 
is balanced by the preferred place given in our scheme 
to the great, the indispensable democratic freedoms 
secured by the First Amendment. Cf. Schneider v. 
State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 
296; Prince v. Massachusetts, 321 U. S. 158. That 
priority gives these liberties a sanctity and a sanction 
not permitting dubious intrusions. And it is the char­
acter of the right, not of the limitation, which deter­
mines what standard governs the choice. Compare 
United States v. Carotene Products Co., 304 U. S. 144, 
152-153.

“ For these reasons any attempt to restrict those liber­
ties must be justified by clear public interest, threat­
ened not doubtfully or remotely, but by clear and 
present danger. The rational connection between the 
remedy provided and the evil to be curbed, which in 
other contexts might support legislation against at­
tack on due process grounds, will not suffice. These 
rights rest on firmer foundation. Accordingly, what­
ever occasion would restrain orderly discussion and 
persuasion, at appropriate time and place, must have 
clear support in public danger, actual or impending. 
Only the gravest abuses, endangering paramount in­
terests, give occasion for permissible limitation. It is 
therefore in our tradition to allow the widest room for 
discussion, the narrowest range for its restriction, par­
ticularly when this right is exercised in conjunction



40a

with peaceable assembly. It was not by accident or 
coincidence that the rights to freedom in speech and 
press were coupled in a single guaranty with the rights 
of the people peaceably to assemble and to petition 
for redress of grievances. All these, though not iden­
tical, are inseparable. They are cognate rights, cf. 
De Jonge v. Oregon, 299 U. S. 353, 364, and therefore 
are united in the First Article’s assurance. * * * ”

We conclude that the reference in §1159 to the factors 
(“public welfare, peace, safety, health, decency, good order, 
morals or convenience” ) are but facets of the police power 
conferred on the City to enable it to establish and main­
tain itself as a viable entity. These elements are only the 
source to which the City may look in choosing the means 
toward a legitimate end. Police power is not an ever ready 
deus ex machina.

The enquiry next devolves on whether the City’s legis­
lative body has established an appropriate means to pre­
vent abuses in the streets.

V.

D obs §1159 I mpose a x  I nvidious P rior R estrain t?

This question we must answer in the affirmative.
In Saia, v. New York, 334 U. S. 558, the court declared 

a sound truck permit ordinance void on its face.
Niemotko v. Maryland, 340 U. S. 268:

“ This Court has many times examined the licensing 
systems by which local bodies regulate the use of their 
parks and public places. # * * In those cases this Court 
condemned statutes and ordinances which required that



41a

permits be obtained from local officials as a prerequi­
site to the use of public places, on the grounds that a 
license requirement constituted a prior restraint on 
freedom of speech, press and religion, and, in the ab­
sence of narrowly drawn, reasonable and definite 
standards for the officials to follow, must be invalid.
* * * ” (Italics added.)

Runs v. New Yorlc, 340 U. S. 290:

“ * m * W e  have here, then, an ordinance which gives 
an administrative official discretionary power to con­
trol in advance the right of citizens to speak on re­
ligious matters on the streets of New York. As such, 
the ordinance is clearly invalid as a prior restraint on 
the exercise of First Amendment rights.

“ In considering the right of a municipality to control 
the use of public streets for the expression of religious 
views, we start with the words of Mr. Justice Roberts 
that ‘Wherever the title of streets and parks may rest, 
they have immemorially been held in trust for the 
use of the public and, time out of mind, have been used 
for purposes of assembly, communicating thoughts be­
tween citizens, and discussing public questions.’ Hague 
v. C. I. 0., 307 U. S. 496, 515 (1939). Although this 
Court has recognized that a statute may be enacted 
which prevents serious interference with normal usage 
of streets and parks, Cox v. New Hampshire, 312 U. S. 
569 (1941), we have consistently condemned licensing 
systems which vest in an administrative official dis­
cretion to grant or withhold a permit upon broad
criteria unrelated to proper regulation of public places.
# * *



42a

American Civil Liberties Union v. Town of Cortlandt, 
109 N. Y. S. 2d 165:

“ Although in most cases where legislative acts have 
been struck down, the discretion in administering the 
licensing power has been placed in administrative offi­
cial, the rule is no different where the legislative body 
reserves for itself the administration of the licensing 
power. In the case of Niemotko v. Maryland, 340 U. S. 
268, * * * applications for a license were customarily 
made first to the Police Commissioner, and, if refused 
by him, application was then made to the City Council. 
Even that body was not permitted to have unlimited 
and uncircumscribed discretion. It is that type of dis­
cretion that has been here vested and, of necessity, 
this Court must declare the ‘Permit Ordinance’ un­
constitutional.”

Cox v. Louisiana, supra:

“ This Court has recognized that the lodging of such 
broad discretion in a public official allows him to de­
termine which expressions of view will be permitted 
and which will not. This thus sanctions a device for 
the suppression of the communication of ideas and 
permits the official to act as a censor. See Saia v. New 
York, supra, at 562. Also inherent in such a system 
allowing parades or meetings only with the prior per­
mission of an official is the obvious danger to the right 
of a person or group not to be denied equal protection 
of the laws. See Niemotko v. Maryland, supra, at 272, 
284; of. Yick Wo v. Hopkins, 118 TJ. S. 356. It is clearly 
unconstitutional to enable a public official to deter­
mine which expressions of view will be permitted and



43a

which will not or to engage in invidions discrimina­
tion among persons or groups either by nse of a stat­
ute providing a system of broad discretionary licens­
ing power or, as in this case, the equivalent of such 
a system by selective enforcement of an extremely 
broad prohibitory statute.

“ It is, of course, undisputed that appropriate, limited 
discretion, under properly drawn statutes or ordi­
nances, concerning the time, place, duration, or man­
ner of use of the streets for public assemblies may be 
vested in administrative officials, provided that such 
limited discretion is ‘ exercised with “ uniformity of 
method of treatment upon the facts of each applica­
tion, free from improper or inappropriate considera­
tions and from unfair discrimination” . . . [and with] 
a “ systematic, consistent and just order of treatment, 
with reference to the convenience of public use of the 
highways . . . ”  ’ Cox v. New Hampshire, supra, at 
576. See Poulos v. New Hampshire, supra.

“ But here it is clear that the practice in Baton Bouge 
allowing unfettered discretion in local officials in the 
regulation of the use of the streets for peaceful parades 
and meetings in as unwarranted abridgment of appel­
lant’s freedom of speech and assembly secured to him 
by the First Amendment, as applied to the States by 
the Fourteenth Amendment. It follows, therefore, that 
appellant’s conviction for violating the statute as so 
applied and enforced must be reversed.”

The only administrative standards are those of the 
City’s basic power virtually in its entirety. The expres­
sions used are couched in the distributive., Hence, a single



44a

reference to the Commission’s opinion of the pnblic wel­
fare, or of peace, or of safety, or of health, or of decency, 
or of good order, or of morals, or of convenience wonld 
suffice for a permit refusal.

“  * * * [The police power of a state] must he exercised 
for an end which is in fact public and the means 
adopted must be reasonably adapted to the accom­
plishment of that end and must not be arbitrary or 
oppressive.”—Treigle v. Acme Homestead, Ass’n, 297 
U. S. 189.

VL

§1159 L acks A scertainable S tandards

If the cohesiveness of the fifty-two pedestrians in having 
a common starting point and apparent common destina­
tion were held to constitute a procession, nevertheless we 
should be constrained to hold the foregoing ordinance in­
valid for the lack of ascertainable constitutional standards 
in determining administratively when a permit shall be 
granted. Baines v. City of Danville, 337 F. 2d 579.

So far as we can find, §1159 has been reviewed directly 
only once by appellate courts. In Primm v. City of Bir­
mingham, supra, we held the -City had singled out the 
defendant without showing any nexus between him 'and 
any other pedestrians. There, Johnson, J., said:

“ To hold that the acts of * # * Primm were violative of 
the above parading ordinance would, in effect, require 
a parading permit to be procured by every conven­
tioneer wearing a large political button attempting to 
cross a street, or by every sporting enthusiast waving 
a pennant that denotes his loyalties while proceeding 
to the field of encounter. * * * ”



45a

In Baines v. City of Danville, supra, approving reference 
is made to the Model Ordinance Regulating Parades 
drafted by the National Institute of Municipal Law Officers.

Hence, we have set out in parallel columns an analysis 
of the salient features of §1159 and the NIMLO Model:

Birm ingham  1944 Code,
§1159, 2d P ar., supra N IM L O  M odel

I. Form of Applica- I. §10-304 
cation

A. Written. A. On forms provided by
Chief of Police.

B. Information. B. Information.

1. No. of persons, “ (a) The name, address and tele- 
vehicles and ani- phone number of the person 
mals. seeking to conduct such parade;

2. Purpose.

3. Route (or place 
of demonstration).

4. Time not re­
quired to be 
given.

“ (b) I f  the parade is proposed 
to be conducted for, on behalf of, 
or by an organization, the name, 
address and telephone number of 
the headquarters of the organi­
zation, and of the authorized and 
responsible heads of such organ­
ization ;

“ (c) The name, address and tele­
phone number of the person who 
will be the parade chairman and 
who will be responsible for its 
conduct;

“ (d) The date when the parade 
is to be conducted;



Birmingham 1944 Code,
§1159, 2d Bar., supra

46a

N 1 M L 0  M odel

“ (e) The route to be traveled, 
the starting point and the ter­
mination point;

“ (f) The approximate number of 
persons who, and animals and 
vehicles which, will constitute 
such parade; the type of animals, 
and description of the vehicles;

“ (g) The hours when such pa­
rade will start and terminate;

“ (h) A  statement as to whether 
the parade will occupy all or only 
a portion of the width of the 
streets proposed to be traversed;

“ (i) The location by streets of 
any assembly areas for such pa­
rade ;

“ (j) The time at which units of 
the parade will begin to assemble 
at any such assembly area or 
areas;

“ (k) The interval of space to be 
maintained between units of such 
parade;

“ (1) I f the parade is designed to 
be held by, and on behalf of or 
for, any person other than the 
applicant, the applicant for such 
permit shall file with the Chief



Birmingham 1944 Code,
§1159, 2d P ar., supra N IM L O  M odel

of Police a communication in 
writing from the person propos­
ing to hold the parade, authoriz­
ing the applicant to apply for the 
permit on his behalf.

“ (m) Any additional informa­
tion which the Chief of Police 
shall find reasonably necessary 
to a fair determination as to 
whether a permit should issue.

C. Late application: ...............
days before proposed 
parade.

D. F ee: $ ...........................

II. Exceptions II. Exceptions §10-303

A. Funeral proces­
sions only exception.

A. Funeral processions.

B. Students going to and from 
classes, etc.

C. A  governmental agency act­
ing within scope.

III. Standards for 
Issuance

III. Standards §10-305

A. “ The commission “ S e c t io n  10-305. Standards for
shall grant * * * and Issuance. The Chief of Police 
prescribing the shall issne a permit as provided
streets12 * * * unless for hereunder when, from a com

12 §10-308 of NIMLO Model empowers the Chief of Police to issne 
an alternate permit, i. e., for a different time or route from that 
proposed.



48a

in its judgment:” the 
permit should be re­
fused because of any 
one or more of the 
following:

Birmingham 1944 Code,
§1169, 2d Par., supra

1. Public welfare;
2. [Public] peace;
3. [Public] safety;
4. [Public] health;
5. [Public] de­
cency;
6. [Public] good
order;
7. [Public] morals;
or
8. [Public] con-
venience.

N U IL O  M odel

sideration of the application and 
from such other information as 
may otherwise he obtained, he 
finds that:

“ (1) The conduct of the parade 
will not substantially interrupt 
the safe and orderly movement 
of other traffic contiguous to its 
route;

“ (2) The conduct of the parade 
will not require the diversion of 
so great a number of police o f­
ficers of the City to properly po­
lice the line of movement and the 
areas contiguous thereto as to 
prevent normal police protection 
to the City;

“  (3) The conduct of such parade 
will not require the diversion of 
so great a number of ambulances 
as to prevent normal ambulance 
service to portions of the City 
other than that to be occupied 
by the proposed line of march 
and areas contiguous thereto;

“ (4) The concentration of per­
sons, animals and vehicles at as 
sembly points of the parade will



49a

not unduly interfere with proper 
fire and police protection of, or 
ambulance service to, areas con­
tiguous to such assembly areas;

“ (5) The conduct of such parade 
will not interfere with the move­
ment of fire-fighting equipment 
enroute to a fire;

“ (6) The conduct of the parade 
is not reasonably likely to cause 
injury to persons or property, 
to provoke disorderly conduct or 
create a disturbance ;

“ (7) The parade is scheduled to 
move from its point of origin to 
its point of termination expedi­
tiously and without unreasonable 
delays enroute;

Birmingham 1944 Code,
§1159, 2d Par., supra NIM LO Model

“ (8) The parade is not to be 
held for the sole purpose of ad­
vertising any product, goods or 
event, and is not designed to be 
held purely for private profit.”

IY. Appeal Procedure: IV. Appeal Procedure: §10-307

None, except to 
courts, presumably 
by way of mandamus 
with alternative 
prayer for certiorari.

“ S ection  10-307. Appeal Proce­
dure. Any person aggrieved 
shall have the right to appeal the 
denial of a parade permit to the 
City Council. The appeal shall



50a

be taken within......... days after
notice. The City Council shall
act upon the appeal within....... .
days after its receipt.”

A  keystone illustration of the canon of strict (or at least 
literal) construction of a penal law is found in McBoyle v. 
United States, 283 U. S. 25,. at 27. There the government 
tried to apply the Dyer Act to punish theft of an airplane. 
Holmes, J., concluded:

“Although it is not likely that a criminal will carefully 
consider the text of the law before he murders or 
steals, it is reasonable that a fair warning should be 
given to the world in language that the common world 
will understand, of what the law intends to do if a 
certain line is passed. To make the warning fair, so 
far as possible the line should be clear. When a rule 
of conduct is laid down in words that evoke in the 
common mind only the picture of vehicles moving on 
land, the statute should not be extended to aircraft, 
simply because it may seem to us that a similar policy 
applies, or upon the speculation that, if the legisla­
ture had thought of it, very likely broader words would 
have been used. United States v. Thind, 261 IT. S. 204, 
209.”

And from a Massachusetts case we quote:

“ * * * Prima facie, mere sauntering or loitering on a 
public way is lawful and the right of any man, woman, 
or child. This the Commonwealth concedes. Under the

Birmingham 1944 Code,
§1159, U  Far., supra NIMLO Model



51a

ordinance, such conduct continues conditionally lawful 
subject to a direction to move on by a police officer 
followed by unreasonable failure to comply and the ex­
piration of seven minutes. Not all idling is prohibited, 
but only that which is unreasonable. The vice of the 
ordinance lies in its failure to prescribe any standard 
capable of intelligent human evaluation to enable one 
chargeable with its violation to discover those condi­
tions which convert conduct which is prima facie law­
ful into that which is criminal. A  ‘statute which either 
forbids or requires the doing of an act in terms so 
vague that men of common intelligence must neces­
sarily guess at its meaning and differ as to its appli­
cation, violates the first essential of due process of 
law.’ Connally v. General Construction Co., 269 U. S. 
385, 391 * # # — Commonwealth v. Carpenter, 325 
Mass. 519, 91 N. E. 2d 666.

Connally v. General Const. Co., 269 TJ. S. 385, is probably 
the most frequently cited case in this area:

“ * * * The result is that the application of the law 
depends not upon a word of fixed meaning in itself, 
or one made definite by statutory or judicial definition, 
or by the context or other legitimate aid to its con­
struction, but upon the probably varying impressions 
of juries as to whether given areas are or are not to be 
included within particular localities. The constitu­
tional guaranty of due process cannot be allowed to 
rest upon a support so equivocal.”

In United States v. Cardiff, 344 U. S. 174, Douglas, J., 
said:



52a

“All that the Department says may be true. But it does 
not enable us to make sense out of the statute. No­
where does the Act say that a factory manager must 
allow entry and inspection at a reasonable hour. Sec­
tion 704 makes entry and inspection conditioned on 
‘making request and obtaining permission’. It is that 
entry and inspection which §301 (f) backs with a 
sanction. It would seem therefore on the face of the 
statute that the Act prohibits the refusal to permit 
inspection only if permission has been previously 
granted. Under that view the Act makes illegal the 
revocation of permission once given, not the failure 
to give permission. But that view would breed a host 
of problems. Would revocation of permission once 
given carry the criminal penalty no matter how long 
ago it was granted and no matter if it had no relation 
to the inspection demanded? Or must the permission 
granted and revoked relate to the demand for inspec­
tion on which the prosecution is based? Those uncer­
tainties make that construction pregnant with danger 
for the regulated business. 'The alternative construc­
tion pressed on us is equally treacherous because it 
gives conflicting commands. It makes inspection de­
pendent on consent and makes refusal to allow inspec­
tion a crime. However we read §301 (f) we think it 
is not fair warning (cf. United States v. Weitzel, 246 
U. S. 533, McBoyle v. United States, 283 U. S. 25) 
to the factory manager that if he fails to give consent, 
he is a criminal. The vice of vagueness in criminal 
statutes is the treachery they conceal either in deter­
mining what persons are included or what acts are 
prohibited. Words which are vague and fluid (cf. 
United States v. Cohen Grocery Co., 255 U. S. 81) may



53a

be as much of a trap for the innocent as the ancient 
laws of Caligula. We cannot sanction taking a man 
by the heels for refusing to grant the permission 
which this Act on its face apparently gave him the 
right to withhold. That would be making an act crimi­
nal without fair and effective notice. Cf. Herndon v. 
Lowry, 301TJ. S. 242.”

This general rule of strict construction of penal laws 
began early in our courts, both state and Federal. Thus, 
Washington, J., in United States v. Sharp (1815), Pet.
C. C. 118, at 122, said:

“ * * * Laws which create crimes ought to be so explicit 
in themselves or by reference to some other standard, 
that all men subject to their penalties may know what 
acts it is their duty to avoid. * * * ”

See also United States v. Lacher, 134 IJ. S. 624; United 
States v. Brewer, 139 U. S. 278; cf. Nash v. United States, 
229 IT. S. 373—“ restraint of trade”  has an ascertainable 
common law meaning. Eubank v. Richmond, 226 IT. S. 137 ; 
Panhandle Co. v. Highway Comm., 294 IT. S. 613.

By 1914 we find the court subsuming the rule into its 
concept of due process and under the Fourteenth Amend­
ment rather than the Sixth. International Harvester Co. v. 
Kentucky, 234 IT. S. 216, struck down a state anti-trust law 
which used “ real value.” Cf. Kentucky Constitution 1891, 
§198.

In Winters v. New York, 333 IT. S. 507, Reed, J., said:

“ * * * The standards of certainty in statutes punish­
ing for offenses is higher than in those depending 
primarily upon civil sanction for enforcement. The



54a

crime ‘must be defined with appropriate definiteness/ 
Cantwell v. Connecticut, 310 U. S. 296; Pierce v. United 
States, 314 U. S. 306, 311. * * *

O/.W *7P W W

“ The impossibility of defining the precise line between 
permissible uncertainty in statutes caused by describ­
ing crimes by words well understood through long 
use in the criminal law—obscene, lewd, lascivious, filthy, 
indecent or disgusting—and the unconstitutional vague­
ness that leaves a person uncertain as to the kind of 
prohibited conduct-—massing stories to incite crime— 
has resulted in three arguments of this case in this 
Court. The legislative bodies in draftsmanship obvi­
ously have the same difficulty as do the judicial in in­
terpretation. * * #

“ * * # But even considering the gloss put upon the 
literal meaning by the Court of Appeals’ restriction of 
the statute to collections of stores ‘so massed as to 
become vehicles for inciting violent and depraved 
crimes against the person * # * not necessarily * # * 
sexual passion,’ we find the specification of publica­
tions, prohibited from distribution, too uncertain and 
indefinite to justify the conviction of this petitioner. 
Even though all detective tales and treatises on crim­
inology are not forbidden, and though publications 
made up of criminal deeds not characterized by 
bloodshed or lust are omitted from the interpretation 
of the Court of Appeals, we think fair use of collections 
of pictures and stories would be interdicted because of 
the utter impossibility of the actor or the trier to know 
where this new standard of guilt would draw the line 
between the allowable and the forbidden publications.



55a

No intent or purpose is required—no indecency or 
obscenity in any sense heretofore known to the law. 
‘So massed as to incite to crime’ can become meaning­
ful only by concrete instances. This one example is 
not enough. The clause proposes to punish the print­
ing and circulation of publications that courts or juries 
may think influence generally persons to commit crime 
of violence against the person. No conspiracy to com­
mit a crime is required. See Musser v. Utah, 333 IT. S. 
95. It is not an effective notice of new crime. The 
clause has no technical or common law meaning. Nor 
can light as to the meaning be gained from the section 
as a whole or the Article of the Penal Law under which 
it appears. * * *

#  #  #  *  *

“ * * * Where a statute is so vague as to make criminal 
an innocent act, a conviction under it cannot be sus­
tained. jHerndon v. Lowry, 301 U. S. 242, 259.”

In the “ Miracle” censorship case, Joseph Burstyn, Inc. 
v. Wilson, 343 U. S. 495, the word “ sacrilegious” (contrasted 
with “blasphemous” ) was held to be fatally vague. Clark, 
J., there said:

“ * # * That statute makes it unlawful ‘to exhibit, or 
to sell, lease or lend for exhibition at any place of 
amusement for pay or in connection with any business 
in the state of New York, any motion picture film or 
reel [with specified exceptions not relevant here], un­
less there is at the time in full force and effect a 
valid license or permit therefor of the education de­
partment . . . * The statute further provides:

“ ‘The director of the [motion picture] division [of the 
education dejDartment] or, when authorized by the re­



56a

gents, the officers of a local office or bureau shall cause 
to be promptly examined every motion picture film 
submitted to them as herein required, and unless such 
film or a part thereof is obscene, indecent, immoral, 
inhuman, sacrilegious, or is of such a character that 
its exhibition would tend to corrupt morals or incite 
to crime, shall issue a license therefor. * * *

#  #  #  #  *

« * * * Under such a standard the most careful and 
tolerant censor would find it virtually impossible to 
avoid favoring one religion over another, and he would 
be subject to an inevitable tendency to ban the ex­
pression of unpopular sentiments sacred to a religious 
minority. Application of the ‘sacrilegious’ test, in these 
or other respects, might raise substantial questions 
under the First Amendment’s guaranty of separate 
church and state with freedom of worship for all. How­
ever, from the standpoint of freedom of speech and the 
press, it is enough to point out that the state has no 
legitimate interest in protecting any or all religions 
from views distasteful to them which is sufficient to 
justify prior restraints upon the expression of those 
views. It is not the business of government in our 
nation to suppress real or imagined attacks upon a 
particular religious doctrine, whether they appear in 
publications, speeches, or motion pictures.

“ Since the term ‘sacrilegious’ is the sole standard under 
attack here, it is not necessary for us to decide, for 
example, whether a state may censor motion pictures 
under a clearly drawn statute designed and applied to 
prevent the showing of obscene films. That is a very 
different question from the one now before us. We



57a

hold only that under the First and Fourteenth Amend­
ments a state may not ban a film on the basis of a 
censor’s conclusion that it is ‘sacrilegious.’ ”

Reference may also be had to the following articles: 
Amsterdam, The Void-for-Vagueness Doctrine, 109 U. Pa. 
L. Rev. 67; Aigler, Legislation in Vague or General Terms, 
21 Mich. L. Rev. 831; Freund, Use of Indefinite Terms in 
Statutes, 30 Yale L. J. 437; Hall, Strict or Liberal Construc­
tion of Penal Statutes, 48 H. L. Rev. 748; Hall and Selig- 
man, Mistake of Law and Mens Rea, 8 U. Chi. L. Rev. 641; 
Note, Statutory Standards of Personal Conduct: Indefi­
niteness and Uncertainty as Violations of Due Proces, 38 
H. L. Rev. 963; Note, Indefinite Criteria of Definiteness in 
Statutes, 45 H. L. Rev. 160; Note, Void for Vagueness: An 
Escape from Statutory Interpretation, 23 Ind. L. J. 272; 
IJorack, Constitutional Liberties and Statutory Construc­
tion, 20 Iowa L, Rev. 448; Quarles, Some Statutory Con­
struction Problems and Approaches in Criminal Law, 3 
Vand. L. Rev. 531; Morris, Case Note, 26 Tex. L, Rev. 
216 and Case Note, 33 Va. L. Rev. 203.

Nor is this principle a stranger to our jurisprudence. 
Carter, 243 Ala. 575, 11 So. 2d 764; Kahalley, 254 Ala. 
482, 48 So. 2d 794.

Mr. Justice Simpson well stated the rule in Bolin, 266 
Ala. 256, 96 So. 2d 582, where the court on certified ques­
tion held the stink bomb law void for vagueness. There 
we find:

“ If the provision can be sustained as constitutional it 
must be under the police power of the state which au­
thorizes the imposition of reasonable regulations in 
the interest of public health, public morals, public 
safety or the general welfare. Looking to one of the



58a

earliest authorities, Blackstone defines this power to 
be 'the due regulation and domestic order of the king­
dom : whereby the individuals of the State, like mem­
bers of a well governed family, are bound to conform 
their general behavior to the rules of propriety, good 
neighborhood, and good manners; and to be decent, in­
dustrious and inoffensive in their respective stations.’ 
4 Blackstone Commentaries 162.

“ Mr. Justice Holmes, speaking for the Supreme Court 
of the United States in Noble State Bank v. Haskell, 
219 U. S. 104, 111, observed:

“ ‘It may be said in a general way that the police power 
extends to all the great public needs. Camfield v. 
United States, 167 U. S. 518, 17 S. Ct. 864, 42 L. Ed. 
260. It may be put forth in aid of what is sanctioned by 
usage, or held by the prevailing morality or strong and 
preponderant opinion to be greatly and immediately 
necessary to the public welfare.’

#  #  #  #  #

“ It is also settled law that ‘In enacting a criminal stat­
ute, there is an obligation on the State to so frame 
it that those who are to administer it and those to whom 
it is to be administered may know what standard of 
conduct is intended to be required and legislation may 
run afoul of the due process clause because of a failure 
to set up any sufficient guidance to those who would be 
law-abiding, or to advise a defendant of the nature and 
cause of an accusation he is called on to answer, or to 
guide the courts in the law’s enforcement.’ Kahalley 
v. State, 254 Ala. 482, 483, 48 So. 2d 794, 795 ; Seals v. 
State, 239 Ala. 5, 194 So. 682; Standard Oil Co. v.



59a

State, 178 Ala. 400, 59 So. 667; Carter v. State, 243 
Ala. 575, 11 So. 2d 764.

“ And a person is not required to speculate as to the 
meaning of a statute at the peril of his freedom. Lan- 
zetta v. State of New Jersey, 306 U. S. 451, 59 S. Ct. 
618, 83 L. Ed. 888. The intent of the legislature must 
appear from the face of the statute. Standard Oil Co. 
v. State, supra.”

In the same year, 1957, in State v. Homan, 38 Ala. App. 
642, 92 So. 2d 51, where a trial court had held Code 
1940, T. 41, §221, subdiv. 3, unconstitutional, we reversed. 
The opinion compasses a number of Alabama cases both 
of imprecise words and constitutional holdings:

“We are cited to the peeping tom case, Kahalley v. 
State, 254 Ala. 482, 48 So. 2d 794, 795. The gist of 
the offense there was for any male person to go ‘near 
and stare * * * into any room * # * not his own or 
under his control, which is occupied by any female per­
son # * * .’ This case in turn is bottomed on the Four­
teenth Amendment to the Federal Constitution via 
Winters v. People of State of New York, 333 U. S. 507, 
68 S. Ct. 665, 92 L. Ed. 840, and other eases therein 
cited.

“And from the Kahalley decision sprang Connor v. City 
of Birmingham, 36 Ala. App. 494, 60! So. 2d 474. The 
offense there was that no two persons of opposite sex 
(except man and wife and parent and minor child) 
shall occupy jointly and privately any room in any 
lodging house, hotel, etc.

“ These cases illustrate what, in the absence of concepts 
of due process, would nevertheless be obnoxious crimi­



60a

nal legislation. Thus in Kahalley the fallacy is ex­
posed by the question, ‘How far is near?’ In Connor 
the language, though unambiguous, is so broad and 
sweeping as.to raise a presumption that the legislator 
would not have so intended unless he had added all 
inclusive words, and absent the all inclusive words 
the courts would not attempt to re-legislate, 36 Ala. 
App. at page 499, 60 So. 2d at page 477.

“ Subdivision 3 of Section 221 [T. 41], supra, is sever­
able * * * . * * * we are of the opinion that there is 
no denial of due process of law nor is the language of 
the subdivision so vague as to be meaningless. There 
are no imprecise words such as ‘profiteering’, ‘neces­
sity of life’, State v. -Goldstein, 207 Ala. 569, 93 So. 
308, ‘profit, gain or advantage, unusual in the ordinary 
course of legitimate business’, State v. Skinner, 20 Ala. 
App. 204, 101 So. 327, 329, or ‘near’, Kahalley v. 
State, supra. See also Parisian Co. v. Williams, 203 
Ala. 378, at page 383, 83 So. 122 at page 127. # * # ”

Since the only stated standards for refusing a permit 
are those of welfare, peace, safety, health, decency, good 
order, morals or convenience, we—in addition to overbroad­
ness find these words, as related to a parade, procession or 
demonstration, either sufficiently lacking in preciseness or 
without a settled applicable common law meaning.

For example, in Hague v. Committee, supra, Roberts, J., 
aptly pointed out that peace on the streets could easily be 
achieved by suppression.

In the context of long drawn out resort to congested 
courts for relief, these stated “ standards”—truly only 
sources of power, not means to an end— show §1159 to be 
void on its face.



61a

VII.

§1159 Is V oid as A pplied

Yick Wo v. Hopkins, supra, held that, though a San Fran­
cisco ordinance aimed at fire hazards had a valid surface 
wording, yet its employment against only Chinese laundry- 
men was discriminatory.

Here we have no direct evidence of any other persons 
being charged with a breach of §1159 on the same occasion 
as that of instant concern. Nevertheless, the borderline 
case made here against Shuttlesworth, coupled with even 
less plausible presentations reviewed in Primm v. City of 
Birmingham, supra, and in two other cases decided here 
on the authority of Primm, at the same time as Primm, 
constitute a pattern of enforcement.

In addition to facts listed in the quotation from Judge 
Johnson’s opinion in Primm (set out hereinabove), we ex­
cerpt also from the evidence of one of the arresting officers:

“ Q. * * * Were you informed by anyone that no 
permits had been issued for any such demonstrations ? 
A. Yes, sir. At roll call before we came to work they 
read out this ordinance number to us and said no one 
had received any permits to hold any kind of demon­
strations downtown and they read out the ordinance 
to us.”

And of similar import from Bentley v. City of Birming­
ham, 6 Div. 938, decided on authority of Primm, we extract:

“ Q. Is it a fact, Officer, that the fact that some 
people might come down in the downtown area with 
signs was discussed that morning at Police Headquar­
ters? A. It was.



62a

“ Q. And was the section which Ann Bentley is 
charged with discussed also at that time1? A. Tes, it 
was.

“ Q. Who did yon discnss it with, Officer! A. I  be­
lieve that the Sergeant read—or, either the Captain 
read out the ordinance and said it was a violation.

“ Q. Could you tell us just what he said with ref­
erence to this ordinance!

“Mr. Walker : We object. Well, go ahead and an­
swer that.

“A. If I remember correctly, at roll call they read 
a lot of different things, read auto stolen reports, and 
read a lot of things that come in there, and if I  re­
member correctly, I believe they read out the ordinance 
and said carrying signs would be prohibited.

“ Q. Did they describe how big the sign had to be! 
A. They did not.

“ Q. Was there anything else said there that you 
remember ! A. Not that I recall.

“Q. Did they describe what type of conduct other 
than carrying signs would constitute an offense! A. 
I don’t recall any mention of conduct.

#  *  #  #  #

“ Q. All that you know about it is that she had the 
sign on, she was not in the company of anybody, she 
was walking across the street, and in about six seconds 
she was arrested! A. That is correct.

“ Q. She didn’t create any disturbance, or block the 
street, or anything else other than that, is that right! 
A. She did not.



63a

“ Q. Didn’t endanger anybody’s safety, so far as yon 
know? A. She did not,”

Officer------------- (on cross) :

“ Q. Now, I believe you stated that you were at the 
roll call that morning when they gave you orders about 
making arrests for violation of 1159? A. They didn’t 
say make an arrest, they just told us what the ordi­
nance number was in case someone was downtown with 
signs on.

“ Q. Wearing signs? A. But, they didn’t actually 
say go out and get them.

“ Q. Well, now, what were your specific orders with 
respect to people wearing signs downtown, if any­
thing? A. I don’t recall any particular orders. They 
just notified us of what the situation—of what the City 
Code was pertaining to such an incident.

“ Q. And your understanding was that you were to 
arrest anybody with a sign on? A. My understanding 
is to arrest anybody violating the City Code to my 
knowledge.

“ Q. We are not asking about the other sections in 
the City Code, we are asking specifically about 1159. 
Did you have specific orders to arrest anybody wrho 
was wearing a sign?

“ Mr. Walker: We object to that, Your Honor.
“ Mr. Shores: Your Honor, we are trying to find 

out whether or not he was given instructions to cover 
that these individuals blocked the street, or whether 
the individuals were creating a disturbance wTith 
signs, or just what type of sign.



64a

“Mr. Walker: Your Honor, we are not trying the 
defendant on what the officer thought, or what or­
ders he was under. The only evidence that will be 
considered is the evidence admitted here in this court 
room, and whether the officer was under instructions, 
or acted even without any instructions, that can 
make no—have no bearing on the case, because it 
will be decided from the evidence that comes from 
the witness stand.

“Mr. Shores: But, since he did say he did have 
some instruction, the law was read to him, we want 
to question him about those instructions. They are 
the ones who brought that out. We didn’t know 
about they had a little meeting and discussed what 
they were to do, so that is what we are trying to 
find out, Your Honor.

“ The Court: You may ask him.

“ Q. * * * were you given any instructions or any 
orders as to what type of signs a person must be 
wearing before you could make an arrest? A. No, I 
don’t recall any such orders.

“ Q. They didn’t tell you how large the sign was to 
be, or how small? A. No, there was no mention as to 
size.

“ Q. Well, specifically what was said at this roll call 
with respect to 1159? A. I don’t remember the exact 
conversation. All I  know they read out—they said 
Article 1159 will cover any demonstrations, or parades, 
or carrying signs downtown. They didn’t mention 
what kind of—-what the signs were to say, or what 
size, or what color or anything of that nature.

“ Q. In other words, they gave you instructions 
coupled with that reading as to what it would require



65a

to make the arrest? One of the requirements was that 
a person must have a sign on? A. That’s right.

“ Q. And that was all, and that is all you arrested 
them for, is that correct? A. That is correct.”

For a case to reach here after a city arrest, it must go 
through two tiers of judicial proceedings: first, a trial be­
fore the city recorder; and, second, on appeal from a con­
viction, a trial de novo in the circuit court.

Trial in the circuit court can only be had on the city 
attorney’s filing (unless waived) of a new complaint.

Accordingly, a case might come before the recorder with­
out counsel for the city being aware of the prosecution in 
detail before trial. In the circuit court, the city’s attorney, 
under his client’s instruction, is an indispensable actor.

This pattern of enforcement exhibits a discrimination 
within the rule of Yick Wo v. Hopkins, supra.

IX.

T hebe W as I n su fficien t  E vidence to 
S ustain  t h e  C harge

In a city ordinance prosecution, the city must sustain 
its case by proof to the same degree required in case of an 
indictable offense, to convince the jury from the evidence 
beyond a reasonable doubt.

Here, we consider the proof weighed in this scale fails 
to show a procession which would require, under the terms 
of §1159, the getting of a permit.

No evidence came in as to whether or not the pedestrians 
in question—fifty-two in number, about a football squad 
with attendants—acted as a cohesive unit as a military 
group would march.



66a

The City failed to show whether or not other pedestrians 
were run off the sidewalk, blocked either in access, process 
or transit. No evidence showed whether or not the group 
disobeyed traffic lights or officers directing crossings. There 
was no evidence of jaywalking or wandering onto the road­
way.

Were it not for the singing and clapping18 and some spurts 
of activity indicative of the appellant being a puisne leader 
under Dr. King, in conjunction with the broad definition 
of “ street” in the City Code as embracing the public side­
walk alongside, we might not have gone to such lengths of 
demonstration.

The Georgia Court of Appeals, in Montgomery v. Mayor, 
etc., of Athens, 105 Ga. App. 57, 123 S. E. 2d 339, where 
a number of men (bearing signs with slogans with scrip­
tural citations) picketed the University of Georgia campus 
while the Attorney General of the United States spoke 
within, had this to say:

“ The undisputed facts in this case show that the peti­
tioners did not obstruct or interfere with either ve­
hicular traffic or pedestrian traffic and were not en­
gaged in any activity which would require a police 
escort to direct traffic in conjunction therewith. Not 
only did they not unreasonably burden and interfere 
with the normal use of the streets by the public in the 
City of Athens but the undisputed facts show that 
their activity did not burden or interfere with the 
normal use of the streets in any manner whatsoever. 
We are therefore of the opinion that the activity of 
the petitioners on this occasion did not constitute a 13

13 State v. Hughes, 72 N. C. 25.



67a

parade as contemplated by the ordinance or by the 
usually accepted definition of a parade. * * * ”

Here, the trial court erred in overruling the appellant’s 
motion to exclude the evidence for want of a prim a facie 
case.

X.

L im itatio n  on O pin ion

When this case arose, Cox v. Louisiana, supra, was not 
announced. Freedman v. Maryland, supra, was waiting in 
the wings. The trial judge rested on a more vigorous Cox 
v. New Hampshire, supra.

We emphasize that we have only before us a walking on 
city sidewalks. In the use of the roadway probably less 
stringent standards of construction would prevail against 
the prosecutor.

Moreover, we do not doubt the potentiality of the City’s 
adopting an ordinance without suppressing free expression 
or locomotion. We quote from Cox v. Louisiana, supra, per 
Goldberg, J . :

“ * * * The rights of free speech and assembly, while 
fundamental in our democratic society, still do not 
mean that everyone with opinions or beliefs to express 
may address a group at any public place and at any 
time. The constitutional guarantee of liberty implies 
the existence of an organized society maintaining pub­
lic order, without which liberty itself would be lost in 
the excesses of anarchy. The control of travel on the 
streets is a clear example of governmental responsi­
bility to insure this necessary order. A  restriction in 
that relation, designed to promote the public conven­



68a

ience in the interest of all, and not susceptible to abuses 
of discriminatory application, cannot be disregarded 
by the attempted exercise of some civil right which, 
in other circumstances, would be entitled to protection. 
One would not be justified in ignoring the familiar red 
light because this was thought to be a means of social 
protest. Nor could one, contrary to traffic regulations, 
insist upon a street meeting in the middle of Times 
Square at the rush hour as a form of freedom of 
speech or assembly. Governmental authorities have 
the duty and responsibility to keep their streets open 
and available for movement. A  group of demonstra­
tors could not insist upon the right to cordon off a 
street, or entrance to a public or private building, 
and allow no one to pass who did not agree to listen 
to their exhortations. * * *

#  #  *  #  #

“We have no occasion in this case to consider the con­
stitutionality of the uniform, consistent, and non-dis- 
eriminatory application of a statute forbidding all 
access to streets and other public facilities for parades 
and meetings. * * * ” (Italics added.)

Ordered liberty is the end for which we enforce laws, 
not the wish for self-immolation. On the bones of the 
martyrs to his tyranny man has never built a lasting sys­
tem of Law.

Lord Acton in 1877 perceived the interplay between 
rights and duties, between competing claims of rights— 
saying:

“ * * * At all times sincere friends of freedom have 
been rare, and its triumphs have been due to minor­



69a

ities, that have prevailed by associating themselves 
with auxiliaries whose objects often differed from 
their own; and this association, which is always dan­
gerous, has been sometimes disastrous, by giving to 
opponents just grounds of opposition, and by kindling 
dispute over the spoils in the hour of success. No 
obstacle has been so constant, or so difficult to over­
come, as uncertainty and confusion touching the na­
ture of true liberty. If hostile interests have wrought 
much injury, false ideas have wrought still more; and 
its advance is recorded in the increase of knowledge, 
as much as in the improvement of lawTs. The history 
of institutions is often a history of deception and illu­
sions; for their virtue depends on the ideas that pro­
duce and on the spirit that preserves them, and the 
form may remain unaltered when the substance has 
passed away.” (Italics added.)

X .

CONCLUSION

The appellant had standing to question the ordinance. 
Staub v. Baxley, supra; Freedman v. Maryland, supra.

We consider that (1) §1159 of the 1944 General Code of 
the City of Birmingham, certainly as to the use of side­
walks by pedestrians, is void for vagueness because of 
overbroad, and consequently meaningless, standards for 
the issuance of permits for processions; (2) said §1150 
has been enforced in a pattern without regard to even the 
meaning here claimed for by the City to such an extent as 
to make it unconstitutional as applied to pedestrians using 
the sidewalks; and (3) the City failed to make a case, under



the purported meaning of §1159, of there being a need 
for the appellant in this case to he covered by a permit 
to use the sidewalk in company with others.

Therefore, the judgment below is due to he reversed 
and the appellant is due to be discharged sine die.

R e ve r se d  a n d  r e n d e r e d .

J ohnson , J. (dissenting):

The complaint filed in the circuit court by the City’s 
attorney charges that appellant “ did take part or partici­
pate in a parade or procession on the streets of the City 
without having secured a permit therefor from the com­
mission, contrary to and in violation of Sec. 1159 of the 
General City Code of Birmingham of 1944.”

The evidence, as introduced by the City, tended to show 
that during the afternoon of Friday, April 12, 1963,, ap­
proximately 52 persons, most of whom were Negroes, de­
parted from a church in the 1400 block of 6th Avenue North 
in Birmingham, grouped “ in formation” on the sidewalk 
in front of the church, and then walked “ in formation” 
along the sidewalks for several blocks. Their route fol­
lowed east from the church along 6th Avenue North to 
17th Street, then south along 17th Street one block to 5th 
Avenue North, and then east again along 5th Avenue North 
towards 18th Street. They were stopped by a policeman 
in the middle of the block between 17th and 18th Streets. 
“ Spectators” lining the route fell in behind and followed 
the group in formation as they passed by. This crowd of 
“ spectators”—consisting of several hundred persons—did 
not walk in formation and had no discernible organization. 
There were also a number of photographers present. The 
appellant, who is a preacher, left the church with the peo-



71a

pie -who walked in formation. He was observed entering 
the church wearing a business suit, and when he left the 
church he was wearing a black shirt and “ bluejean” trou­
sers. Rev. Martin Luther King and Rev. A. B. Abernathy 
led the group in formation. They were dressed in attire 
similar to that worn by appellant. The group in formation 
sang and clapped hands as they proceeded along the side­
walk, but were otherwise orderly. No permit was issued 
for a parade or procession to be held on April 12, 1963. 
There is no evidence concerning whether anyone applied 
for such permit.

Police Officer R. N. Higginbotham, a witness for the 
City, was at 5th Avenue North and 18th Street when he 
first observed the alleged parade or procession. He testi­
fied that the group in formation turned on to 5th Avenue 
from 17th iStreet and proceeded east on the sidewalk on 
the north side of 5th Avenue, that this group was marching 
four to six abreast “ all the way across the sidewalk” , and 
that he stopped them in the middle of the block between 
17th and 18th Streets. He stated that the crowd following 
the group in formation was in the center of the street, and 
also that he observed appellant in the group in formation, 
in the “ third or fourth row back.”

Police Officer Edward Ratigan, a witness for the City, 
testified that he followed the alleged parade or procession 
from the church on 8th Avenue to where it was stopped 
on 5th Avenue; that the group in formation consisted of 52 
persons marching two abreast, approximately forty inches 
apart; and that this formation persisted until the group 
was stopped. He further stated that appellant was at no 
time in line with a partner in the marching group but was 
walking alongside the group talking to them, and giving 
them encouragement. Police Officer Herman Evers testi­



72a

fied that appellant was “bounding from the front to the 
rear” of the marching group “waving his arms to come 
on, telling them to come on.”

Appellant’s evidence consists of the testimony of five 
witnesses, including himself. His evidence tends to show 
that approximately 52 persons left the church on 6th 
Avenue North and walked two abreast on the sidewalks for 
several blocks; that appellant left the church with the 
group and walked a few blocks in the same direction; that 
he was not walking with a partner in this group but was 
walking at times beside the group, counseling them to be 
quiet and orderly; that he also tried to prevent bystanders 
or spectators from joining the marching group; and that 
he left the scene before any of the group in formation was 
arrested. Appellant referred to the group in formation as 
“marchers.”

Appellant contends that the court erred in overruling 
his motion to exclude the City’s evidence because (1) there 
is no evidence of a parade or procession, (2) assuming 
arguendo there was a parade or procession, it occurred on 
the sidewalk and not in the streets as alleged in the com­
plaint, and (3) there is no evidence that appellant took 
part or participated in such parade or procession.

The statute does not attempt to define a parade or pro­
cession. Parade is defined in Webster’s New International 
Dictionary, Second Edition, as follows:

“ Any march or procession; esp. a formal public pro­
cession; the movement of any body marshalled in 
something like military order; as, a parade of firemen; 
a circus parade.”

Procession is defined in Webster’s New International 
Dictionary, Second Edition, as follows:



73a

“ A  group, esp. of persons or of vehicles containing 
persons, moving onward in an orderly, ceremonious, 
or solemn parade; as a religious procession; to go in 
procession to the capitol; to form a procession.”

In Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 
85 L. Ed. 1049, the Supreme Court of the United States 
had before it the question of whether a group of fifteen to 
twenty members of a religious sect marching along the 
sidewalk in single file carrying placards constituted a 
“ parade or procession”  within the meaning of a New 
Hampshire Statute prohibiting a parade or procession with­
out a license. The question was answered in the affirmative 
by a unanimous court. Chief Justice Hughes, speaking for 
the court, stated:

“ There appears to be no ground for challenging the 
ruling of the state court that appellants were in fact 
engaged in a parade or procession upon the public 
streets. As the state court observed: ‘It was a march 
in formation, and its advertising and informatory pur­
pose did not make it otherwise . . .  It is immaterial 
that its tactics were few and simple. It is enough that 
it proceeded in an ordered and close file as a collective 
body of persons on the city s t r e e t s (Emphasis 
added.)

Here, the City’s evidence establishes that a substantial 
number of persons, upon leaving the same church at the 
same time, gathered in formation in front of that church 
and while maintaining formation marched on the sidewalks 
along the streets for several blocks, two to six abreast. 
They were singing and clapping their hands. The group 
was led and directed by ministers or preachers. The march­



74a

ers attracted a crowd of spectators, and some photogra­
phers. This evidence established, in my opinion, a common 
intent to march on the streets as an organized, collective 
body of persons. It was a movement of a body of persons 
marshalled in something like military order. It was a 
“ parade or procession” within the meaning of Section 1159, 
supra.

Appellant’s contention that the parade or procession did 
not occur in the street is without merit. A look at Section 2 
of the General City Code of Birmingham of 1944 discloses 
an intent to treat sidewalks as part of the streets. Section 
2 reads in part:

“ Sec. 2. Definitions and rules of construction.

“ In the construction of this code and of all ordi­
nances, the following definitions and rules shall be ob­
served, unless the context clearly requires otherwise. 

# # #  ̂ #
“Sidewalk: The term ‘sidewalk’ shall mean that por­

tion of a street between the curb line and adjacent 
property line.”

In common parlance, a “ sidewalk” is the part of a street 
assigned to the use of the pedestrians. Smith v. City of 
Birmingham., 42 Ala. App. 467, 168 So. 2d 35.

A  parade or procession may be held on the sidewalk as 
well as that part of the street set aside for vehicular traffic. 
See Cox v. New Hampshire, supra. Sec. 1159, supra, pro­
hibits a parade or procession on any portion of the street, 
including the sidewalk.

The evidence clearly establishes that appellant took part 
or participated in the parade or procession. I f  we reject 
the testimony of Officer Higginbotham to the effect that



75a

appellant was in the group in formation, which I do not, 
the testimony of other police officers to the effect that 
appellant walked beside the marching group giving them 
instructions is sufficient to establish that he participated 
in the parade or procession. One who assumes duties 
similar to a drill sergeant in a military parade, as did ap­
pellant, takes part or participates in a parade or proces­
sion.

Appellant contends that Section 1159 “vests in the com­
mission the power to restrain free expression without 
establishing reasonable standards for the use of such 
power,” and therefore violates the First Amendment to the 
United -States -Constitution, which is protected against state 
action by the Fourteenth Amendment.

Although the right to engage in a parade is one phase 
of the exercise of the fundamental right of free speech and 
assembly, such right is subject to reasonable and non-dis­
criminating regulation and limitation.

In Cox v. New Hampshire, supra, Chief Justice Hughes 
wrote:

“Civil liberties, as guaranteed by the Constitution, 
imply the existence of an organized society maintain 
public order without which liberty itself would be lost 
in the excesses of unrestrained abuses. The authority 
of a municipality to impose regulations in order to 
assure the safety and convenience of the people in the 
use of public highways has never been regarded as 
inconsistent with civil liberties but rather as one of 
the means of safeguarding the good order upon which 
they ultimately depend. The control of travel on the 
streets of cities is the most familiar illustration of this 
recognition of social need. Where a restriction of the 
use of highways in that relation is designed to promote



76a

the public convenience in the interest of all, it cannot 
be disregarded by the attempted exercise of some civil 
right which in other circumstances would be entitled to 
protection. * * * As regulation of the use of the streets 
for parades and processions is a traditional exercise of 
control by local government, the question in a partic­
ular case is whether that control is exerted so as not 
to deny or unwarrantedly abridge the right of assem­
bly and the opportunities for the communication of 
thought and the discussion of public questions im- 
memorially associated with resort to public places.”

In Kunz v. New York, 340 U. S. 290, 71 S. Ct. 312, 95 
L. Ed. 28, Mr. Justice Jackson wrote that “ cities through­
out the country have adopted the permit requirement to 
control private activities on public streets and for other 
purposes.” Ordinances of this character have been in effect 
in most municipalities of Alabama for many years. The 
authority to enact such ordinances is given by Section 455, 
Title 37, and Section 654, Title 62, Code of Alabama 1940.

It is the duty of this Court not to strike down a city 
ordinance as unconstitutional if by a reasonable construc­
tion it can be given a field of operation within constitu­
tional limits. See City of Mobile v. Coffin, 28 Ala. App. 243, 
181 So. 795. Where an ordinance is susceptible of two 
constructions, one of which will defeat the ordinance and 
the other will support it, the latter construction will be 
adopted. Birmingham By., Light & Power Co. v. Kyser, 
203 Ala. 121, 82 So. 151. A municipal ordinance must be 
construed with a view towards the purpose for which it 
was adopted. City of Birmingham v. Mauzey, 214 Ala. 476, 
108 'So. 382.



77a

I think it is obvious that this ordinance— Section 1159— 
was not designed to suppress in any manner freedom of 
speech or assembly, but to reasonably regulate the use of 
the streets in the public interest. It does not seek to con­
trol what may be said on the streets, and is applicable only 
to organzied formations of persons, vehicles, etc., using the 
streets and not to individuals or groups not engaged in a 
parade or procession. The requirement that the applicant 
for a permit state the course to be travelled, the probable 
number of persons, vehicles and animals, and the purpose 
of the parade is for the purpose of assisting municipal 
authorities in deciding whether or not the issuance of a 
permit is consistent with traffic conditions. Thus, the re­
quired information is related to the proper regulation of 
the use of the streets, and the fact that such information 
is required indicates that the power given the licensing au­
thority was not to be exercised arbitrarily or for some 
purpose of its own. The requirement that the applicant 
state the purpose of the parade or procession does not in­
dicate an intent to permit the Commission to act capri­
ciously or arbitrarily. The purpose may have a bearing 
on precautions which should be taken by municipal au­
thorities to protect parades or the general public.

Section 1159, supra, provides that the Commission shall 
issue a permit “unless in its judgment the public welfare, 
peace, safety, health, decency, good order, morals or con­
venience require that it be refused.” I do not construe 
this as vesting in the Commission an unfettered discretion 
in granting or denying permits, but, in view of the pur­
pose of the ordinance, one to be exercised in connection 
with the safety, comfort and convenience in the use of 
the streets by the general public. The standard to be ap­
plied is obvious from the purpose of the ordinance. It



would be of little or no value to state that the standard by 
which the Commission should be guided is safety, comfort 
and convenience of persons using the streets, and, due to 
varying traffic conditions and the complex problems pre­
sented in maintaining an orderly flow of traffic over the 
streets, it would be practically impossible to formulate in 
an ordinance a uniform plan or system relating to every 
conceivable parade or procession. The members of the 
Commission may not act as censors of what is to be said 
or displayed in any parade. I f  they should act arbitrarily, 
resort may be had to the courts. It is reasonable to assume 
from the facts in this case that the Commission would 
have granted appellant a permit to engage in the parade 
if such permit had been sought. A  denial would have been 
warranted only if after a required investigation it was 
found that the convenience of the public in the use of the 
streets at the time and place set out in the application 
would be unduly disturbed.

My conclusions are fully sustained by the decision in 
State v. Cox, 91 N. H. 137, 16 A. 2d 508. In that case the 
court was called upon to determine the constitutionality 
of a state statute prohibiting a parade or procession on 
the streets without a permit from local authorities. The 
statute did not set out a standard for granting or refusing 
the permit. The court overruled the defendant’s conten­
tion that the statute vested unfettered control in the li­
censing authorities. In answering this contention, the 
court said:

“ The act is implicit in its requirement that the li­
censing authority act reasonably in granting or deny­
ing licenses, and with reference to the object of public 
order on the public ways. I f  it does not in express



79a

terms ‘make comfort or convenience in the use of 
streets * * * the standard of official action’ (Hague v. 
Committee for Industrial Organization, 307 U. S. 496, 
518, 59 S. Ct. 954, 964, 83 L. Ed. 1423) the necessary 
inference is that it does, based upon the presumption 
in favor of the validity of legislation as re-enforced by 
the express provision of the act bestowing ‘delegated 
powers’ upon the authority, as a grant intended to be 
only of due legislative power which may properly be 
delegated. The discretion thus vested in the authority 
is limited in its exercise by the bounds of reason, in 
uniformity of method of treatment upon the facts of 
each application, free from improper or inappropriate 
considerations and from unfair discrimination. A 
systematic, consistent and just order of treatment, 
with reference to the convenience of public use of the 
highways is the statutory mandate. The licensing au­
thority has no delegation of power in excess of that 
which the legislature granting the power has, and 
the legislature attempted to delegate no power it did 
not possess.”

The United States Supreme Court, in a unanimous deci­
sion, held that the statute, as construed by the Supreme 
Court of Hew Hampshire, violated no federal constitu­
tional rights of the defendants. Cox v. New Hampshire, 
supra.

The construction adopted by the Supreme Court of New 
Hampshire is sound. I would place the same construction 
upon the ordinance here for review.

There is nothing in the record before us tending to show 
that the ordinance has been applied in other than a fair 
and non-discriminatory manner. I cannot agree that this



80a

ease, coupled with Primm v. City of Birmingham, ------Ala.
App. ——, 177 So. 2d 236, and the two eases decided on 
authority of Primm constitutes a pattern of enforcement 
No violation of Yick Wo v. Hopkins, 118 U. S. 356, has 
been argued, nor does such violation appear from the 
record or extrinsically.

So evanescent are the issues in the majority opinion. I 
most respectfully dissent.



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