Shuttlesworth v Birmingham AL Brief for Writ of Certiorari

    SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1961.

---------------
No. 721.

F. L. S H U TTLE S W O R TH  and CHARLES BILLUPS,
Petitioners,

vs. C E 2E LL DILLIiNi3SLEY, 
a tto rn ey  a t  l a w

Resnondent " . 51 ° '514 m asonic  blog . Kespondent. 1630. 4th a v e n u e  n o r t

-------------------------------- ALASAft*/-

C ITY OF BIRMINGHAM,

B R I E F
On Behalf of Respondent to Petition for 

Writ of Certiorari.

W A TTS  E. DAVIS,
WILLIAM C. WALKER,
EARL McBEE,

600 City Hall Building, 
Birmingham, Alabama, 

Attorneys for Respondent.

St. Louis Law Printing Co., Inc., 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Page
Statement in opposition to question presented for re­

view .................................................................................. 1
Statement in opposition to constitutional and statutory 

provisions involved ......................................................  3
Statement in opposition to petitioners’ statement of 

the case ..........................................................................  3
Argument:

Re: Lack of jurisdiction of the C ou rt......................... 4
Re: Constitutional and statutory provisions involved 5
Re: Question presented ............................................  8
Re: Petitioners’ reasons for granting the w r it .........  16

Certificate of service ......................................................  19

Cases Cited.

Allen-Bradley Local, etc., v. Wisconsin Employment 
Relations Board, 315 U. S. 740, at page 746, 62 
S. Ct. 820, at page 824, 86 L. Ed. 1154 .....................  6

Browder v. Gayle, 142 F. Supp. 707 .............................  17
Bullock v. U. S., 265 P. 2d 683, cert, denied 79 S. Ct. 

1294, 1452, 360 IT. S. 909, 932, 3 L. Ed. 2d 1260, re­
hearing denied 80 S. Ct. 46, 361 U. S. 855, 4 L. Ed.
2d 95 ...............................................................................  17

Crane v. Pearson, 26 Ala. App. 571, 163 So. 821............  6

Davis v. State, 36 Ala, App. 573, 62 So. 2d 224 .......... 11
Dudley Brothers Lumber Company v. Long, 109 So. 2d 

684, 268 Ala. 565 ..........................................................  15



H

Garner v. State of Louisiana, 82 S. Ct. (1961) .7, 8,10,15,18 
Gibson v. Mississippi, 16 S. Ct. 904, 162 U. S. 565, 40 

L. Ed. 1075 ......................................................................  7

Holle v. Brooks, 209 Ala. 486, 96 So. 341 .................  6

Jones v. State, 174 Ala. 53, 57 So. 31, 3 2 .....................  11

Local No. 8-6, Oil, Chemical and Atomic Workers In­
ternational Union, AFL-CIO v. Missouri, 80 S. Ct.
391, 361 II. S. 363, 4 L. Ed. 2d 373 .............................  6

Martin v. Struthers, 319 U. S. 147, 63 S. Ct. 862, 87
L. Ed. 1313 ....................................................................  17

McNulty v. California, 13 S. Ct. 959, 149 U. S. 645, 37 
L. Ed. 882 ......................................................................  6

National Labor Relations Board v. Fansteel Metal­
lurgical Corp., 306 U. S. 240 .....................................10,14

Ohio Bell Telephone Co. v. Public Utilities Commis­
sion, 301 U. S. 292, 302, 57 S. Ct. 724, 729, 81 L. Ed.
1093 .................................................................................  7,8

O ’Neil v. Vermont, 12 S. Ct. 693, 144 U. S. 323, 36 
L. Ed. 450 ....................................................................  6,7

Parsons v. State, 33 Ala. App. 309, 33 So. 2d 164 . . .  . 11
Pruett v. State, 33 Ala. App. 491, 35 So. 2d 1 1 5 .......... 11

Schenck v. United States, 249 IT. S. 47 ...................... 16,18
Swinea v. Florence, 28 Ala. App. 332, 183 So. 686 . . . .  6

Thompson v. City of Louisville, 80 S. Ct. 624, 625
(1960) ............................................................................ .13,15

Thorington v. Montgomery, 13 S. Ct. 394, 147 U. S.
490, 37 L. Ed. 252 ........................................................  6

Williams v. Howard Johnson, 268 F. 2d 845 .............. 17

Statutes and Rules Cited.

Alabama Supreme Court Rule 1, Code of Alabama 
(1940), Title 7, Appendix 6



I l l

City Code of Birmingham (1944):
Section 369 ..................................................................3, 5, 13
Section 824 ...............................................................10,11,15
Section 1436 ................................................................. 10,11

Code of Alabama (1940), Title 7, Section 225 .......... 7
Code of Alabama (1940), Title 14, Section 1 4 ............. H
Supreme Court Rule 21 (1), 28 IT. S. C. A ....................  4
Supreme Court Rule 24 (2), 28 U. S. C. A.....................  5
Supreme Court Rule 33 (1), 28 U. S. C. A .....................4, 5



SUPREME COURT OF THE UNITED STATES.

OGTOBER TERM, 1961.

No. 721.

F. L. S H U TTLE S W O R TH  and CHARLES BILLUPS, 
Petitioners,

vs.

C ITY OF BIRMINGHAM,
Respondent.

B R I E F
On Behalf of Respondent to Petition for 

Writ of Certiorari.

STATEMENT IN OPPOSITION TO QUESTION 
PRESENTED FOR REVIEW.

Petitioners present a single question for the review of 
this Court (p. 2).#

* Page references contained herein and preceded by the letter 
‘ ‘P” designate pages in petitioners’ Petitions for Writ of Certiorari.

Page references contained herein and preceded by the letter “ R ” 
refer to pages in the Records o f the proceedings below, which Rec­
ords have common page numbers.



__o __

This question is predicated upon the supposition that 
“ Alabama has convicted petitioners”  of inciting1 or aid­
ing1 or abetting another to go or remain on the premises 
of another after being warned not to do so.

Petitioners then propose for review by the Court the 
question of whether, in convicting and sentencing the pe­
titioners, “ has Alabama denied liberty, including free 
speech, secured by the due process clause of the Four­
teenth Amendment ? ’ ’

The State of Alabama is not a named party in the case, 
and so far as City of Birmingham, the respondent named 
in this cause, is aware, no effort has been exerted at any 
time to make the State of Alabama a party. Since “ Ala­
bama”  was not a party to the case below, and is not a 
named party before this Court, the sole question presented 
here for review seems entirely and completely moot and 
ungermane, leaving thereby no question related to any 
events taking1 place in the courts below for review by this 
Court. The case below was a quasi-criminal proceeding 
wherein the City of Birmingham sought to enforce one of 
its local ordinances.

Petitioners take occasion to also predicate their ques­
tion presented for review (p. 2) upon the hypothesis that 
“ a Birmingham ordinance requires racial segregation in 
restaurants.”

The petitioners’ reference to such an alleged ordinance 
is mentioned here before this Court for the very first time 
since the initial fding of the complaint by respondent in 
the county circuit court below, and is not an appropriate 
matter to be considered here under a petition seeking writ 
of certiorari.



STATEMENT IN OPPOSITION TO CONSTITUTIONAL 
AND STATUTORY PROVISIONS INVOLVED.

Petitioners contend tliat a section 369 of the 1944 Gen­
eral Code of City of Birmingham is one of three ordinances 
involved in this proceeding.

As mentioned above, this alleged ordinance has been 
injected into this case for its first and only time in the 
petition for writ now before this Court, and is not a proper 
subject for consideration by the Court. The petition for 
writ of certiorari should seek only a review of what lias 
transpired below and is not properly an arena for intro­
ducing new defenses which were not, exhausted in the state 
courts.

STATEMENT IN OPPOSITION TO PETITIONERS’ 
STATEMENT OF THE CASE.

Respondent wishes to supplement petitioners’ statement 
of the case by pointing out to the Court additional perti­
nent testimony which, though brief, is not in petitioners’ 
statement:

“  . . . Rev. Billups came to his school, Daniel Payne 
College, in a car and carried him (Davis) to Rev. 
Shuttles worth’s house”  (R. 28).

The record further shows “ that in response to Rev. 
Shuttlesworth asking for volunteers to participate in the 
sit down strikes that he (Davis) volunteered to go to 
Pizitz at 10:30 and take part in the sit down demonstra­
tions”  (R. 29).

As noted by petitioners, Billups was present at the meet­
ing and others in attendance at the meeting’ at Rev. Shut­
tlesworth’s house participated in sit down demonstrations 
the day following the meeting (p. 4).



—  4 —

ARGUMENT.

Re: Lack of Jurisdiction of the Court.

Respondent insists the Court is without jurisdiction to 
entertain the “ petition for writ of certiorari”  in this 
cause, for that the petition was not served upon either of 
the counsel of record for respondent, namely, Watts E. 
Davis or Bill Walker, later referred to as William C. 
Walker, whose names clearly appear upon the face of the 
title pages appearing in each of the respective records now 
before the Court in this cause as the only counsel of 
record.

These two cases below, before the Alabama Court of Ap­
peals, are reported respectively in 134 So. 2d 213 and 134 
So. 2d 215; and, before the Supreme Court of Alabama, in 
134 So. 2d 214 and 134 So. 2d 215. Each of the four re­
ported cases show “ Watts E. Davis and William C. Walker 
for Appellee” .

The proof of service, Form 75 (8-61-10M), as supplied 
by the Clerk and subsequently filed with the Clerk of this 
Court, demonstrates clearly that notice of the filing of the 
petition, the record and proceedings and opinion of the 
Court of Appeals of Alabama and of the Supreme Court 
of Alabama, was served upon “ Hon. MacDonald Gallion, 
Mr. James M. Breckenridge” . Service of the notice, which 
is required by Supreme Court Rule 21 (1), 28 U. S. C. A.,1 
to be made as required by Supreme Court Rule 33 (1), 28 
IT. S. C. A.,2 was attempted to be accomplished by use of

1 The pertinent provision of Supreme Court Rule 21 (1 ) reads, 
“ Review on writ of certiorari shall be sought by filing with the 
clerk, with proof of service as required by Rule 33, forty printed 
copies of a petition, . .

2 The pertinent provision of Supreme Court Rule 33 reads, 
“ Whenever any pleading, motion, notice, brief or other document is 
required by these rules to be served, such service may be made per­



the mail. Supreme Court Rule 33 (1), 28 U. S. C. A., re­
quires that service by mail shall be addressed to counsel 
of record (emphasis supplied) at his postoffice address, 
which, as shown supra, was not done in this case.

It is your respondent’s position that the petitioners’ 
failure to comply with the reasonable rules of this Court 
in the above regard, whether done through carelessness 
or indifference to the rules of this Court, leaves the re­
spondent without notice of the proceedings pending in this 
cause, as required by law, and that the Court is without 
jurisdiction to proceed without the necessary parties to 
the writ before the Court. The petition for writ seeking 
certiorari should therefore be dismissed or denied.

The rules of this Court, Supreme Court Rule 24 (2),:! 
28 II. S. C. A., do not provide for a separate motion to dis­
miss a petition for writ of certiorari, and absent the rem­
edy of any such motion, respondent prays that- nothing 
contained in its reply brief shall be considered as a waiver 
of its objection presented here to the jurisdiction of the 
Court.

ARGUMENT.

Re: Constitutional and Statutory Provisions Involved.

It is contended by petitioners that “ Section 369 (1944)”  
of the respondent’s city code is involved in the case now 
before the Court.

sonally or by mail on each adverse party. If personal, it shall con­
sist o f delivery, at the office of counsel of record, to counsel or a 
clerk therein. If by mail, it shall consist of depositing the same 
in a United States post office or mail box, with first class postage 
prepaid, addressed to counsel of record at his post office address

“ No motion by a respondent to dismiss a petition for writ of 
certiorari will be received. Objections to the jurisdiction of the 
court to grant writs of certiorari may be included in briefs in opposi­
tion to petitions therefor.”



Petitioners contend that the ordinance requires the sepa­
ration of white and colored persons in eating establish­
ments.

Assuming such to be true, the propriety of suggesting 
the ordinance for the first time in this Court is completely 
out of harmony with past decisions of this Court. In the 
case of Local No. 8-6, Oil, Chemical and Atomic Workers 
International Union, AFL CIO v. Missouri, 80 S. Ct. 391, 
361 U. S. 363, 4 L. Ed. 2d 373, this Court said, “ Constitu­
tional questions will not be dealt with abstractly. * # * 
They will be dealt with only as they are appropriately 
raised upon a record before us. * * * Nor will we assume 
in advance that a State will so construe its law as to bring 
it into conflict with the federal Constitution or an act of 
Congress.”  The foregoing quote was adopted from the 
earlier case decided by this Court in Allen-Bradley Local, 
etc. v. Wisconsin Employment Relations Board, 315 U. 8. 
740, at page 746, 62 S. Ct. 820, at page 824, 86 L. Ed. 1154.

It has been stated under Alabama Supreme Court Rule 1, 
Code of Alabama (1940), Title 7, Appendix, in assigning 
error on appeal, “ it shall be sufficient to state concisely, 
in writing, in what the error consists” .

It has been uniformly held under Alabama Supreme 
Court decisions that “ no question is reserved for decision 
which is not embraced in a due assignment of error” . 
Holle v. Brooks, 209 Ala. 486, 96 So. 341; Swinea v. Flor­
ence, 28 Ala. App. 332, 183 So. 686; Crane v. Pearson, 26 
Ala. App. 571, 163 So. 821.

This Court has many times repeated its established 
doctrine that, “ A decision of a state court resting on 
grounds of state procedure does not present a federal ques­
tion.”  Thorington v. Montgomery, 13 S. Ct. 394, 147 U. S. 
490, 37 L. Ed. 252; McNulty v. California, 13 S. Ct. 959, 
149 IT. S. 645, 37 L. Ed. 882; O’Neil v. Vermont, 12 S. Ct.

—  6 —



I  —

693, 144 U. S. 323, 36 L. Ed. 450; Gibson v, Mississippi, 16 
S. Ct. 904, 162 U. S. 565, 40 L. Ed. 1075.

The records before this Court clearly show that peti­
tioners have never placed before the state courts the mat­
ter of any such ordinance requiring separation of the 
races although lengthy and detailed pleadings were inter­
spersed throughout all of the student sit-in eases (Gober 
et al., now here in No. 694), as well as the instant case.

At best, as argued in the Gober case, the question of 
judicial notice by the court below might conceivably find 
its way into the controversy.

Bearing in mind that judicial notice is a rule of evidence
rather than a rule of pleading, the suggested ordinance, 
to have served some defensive purpose (see Code of Ala­
bama (1940), Title 7, Section 225), would of necessity have 
had to be incorporated into a plea or answer to the com­
plaint. If then, after the supposed ordinance was properly 
made an issue in the trial below petitioners sought judi­
cial notice by the Court, rules of evidence making it un­
necessary to prove by evidence the existence of such an 
ordinance would have been entirely applicable. The record 
before the Court clearly demonstrates, of course, that pe­
titioners did not place the question of such ordinance be­
fore the lower court, nor was any assignment of error di­
rected to the proposition before the state appellate court.

This question is not a new one for this Court. In the 
recent case of Garner v. State of Louisiana, 82 S. Ct. 
(1961), Mr. Chief Justice Warren, in delivering this 
Court’s opinion, stated, “ There is nothing in the records 
to indicate that the trial judge did in fact take judicial 
notice of anything. To extend the doctrine of judicial 
notice to the length pressed by respondent * * * would be 
‘ to turn the doctrine into a pretext for dispensing with a 
trial’ ” , citing Ohio Bell Telephone Co, v. Public Utilities



—  8  —

Commission, 301 U. S. 292, 302, 57 S. Ct. 724, 729, 81 L. Ed. 
1093. The foregoing opinion further recited the inherent 
danger of a court taking upon itself the prerogative of 
unsolicited judicial notice in the absence of inserting same 
into the record by saying a party, “ * # * is deprived of 
an opportunity to challenge the deductions drawn from 
such notice or to dispute the notoriety or truth of the facts 
allegedly relied upon.”

In light of the Garner opinion, supra, and in light of 
the fact that the record discloses nowhere that the court 
below, either upon solicitation of counsel or otherwise, 
took or refused to take judicial notice of any such ordi­
nance, and further, that no assignment of error before 
the state appellate court makes any reference whatever 
to the existence of such an ordinance, thereby affording 
the state appellate court an opportunity to rule on any 
question related to the ordinance, your respondent re­
spectfully urges that no constitutional or other questions 
dependent upon such an ordinance are properly present­
able before this Court for review.

ARGUMENT.

Re: Question Presented.

Petitioners submit one question for review (p. 2) by 
this Court.

The question is predicated upon the assumption of fact 
that “ Alabama has convicted petitioners”  for inciting, 
aiding or abetting another person to remain upon the 
premises of another after being warned not to do so; and 
upon the further assumption of fact that there was no 
evidence that either of the petitioners “ persuaded anyone 
to violate any law”  (ibid).

Following the foregoing assumptions of fact, petitioners 
present for review the following question:



“ In convicting and sentencing petitioners respec­
tively to 180 and 30 days hard labor, plus fines, has 
Alabama denied liberty, including freedom of speech, 
secured by the due process clause of the Fourteenth 
Amendment! ”

The City of Birmingham was the plaintiff in the trial 
court below (R. 2). The City handled the prosecution of 
the petitioners in the trial court and represented the city 
in the appellate courts of Alabama. So far as the record 
discloses, and so far as the respondent is aware, the State 
of Alabama has never been a party to any phase of this 
proceeding nor has the State of Alabama at any time 
interceded in the matter in any manner disclosed by the 
record. It would therefore appear that the only question 
presented to this Court for review is a moot one.

As to the proposition that there was “ no evidence”  
(p. 2) to support the conviction of petitioners, your re­
spondent is unwilling to concede this to be true.

The testimony offered by respondents in the trial below 
was neither disputed by petitioners nor was same sub­
jected to any cross-examination (R. 31).

Petitioners present extracts of the testimony below in 
Appendix to their petition (pp. 13a-16a). In brief, the 
evidence is shown to be as follows: A student (Gober) 
went to Rev. Shuttlesworth’s house on March 30th (p. 
13a); a student (Davis) went to the house with Rev. 
Billups, who came to his school in a car and carried him 
there (p. 15a); Rev. Shuttlesworth and Rev. Billups were 
both present at Rev. Shuttlesworth’s house (p. 14a); that 
there was a meeting in the living room and that Rev. 
Shuttlesworth participated in the discussion about sit- 
down demonstrations and Rev. Billups was at this meet­
ing also (ibid); that when the student (Davis) arrived 
at the meeting there were several people there including



—  10

Rev. Shuttlesworth and a number of other students (p. 
15a); Rev. Shuttlesworth asked for volunteers to par­
ticipate in the sit-down strikes (ibid); a student (Davis) 
volunteered to go to Pizitz (a department store in the 
Pity of Birmingham) at 10:30 and take part in the sit- 
down demonstrations (ibid); that Rev. Shuttlesworth an­
nounced at that time that he would get them out of jail 
(pp. 15a, 16a); both James Albert Davis and James Gober 
did participate in sit-down demonstrations on March 31, 
1960, as well as other students who attended the meeting 
at Rev. Shuttlesworth’s house on March 30, 1960 (p. 16a).

The foregoing is the evidence contained in the record 
before the Alabama Court of Appeals, and in the petition 
under consideration.

The opinion of the state court of appeals (pp. la, 2a) 
stated (p. 2a), “ A sit-down demonstration being a form 
of trespass after warning, denotes a violation of both 
State law and especially of Section 1436 of the City Code, 
supra. * * * There is a great deal of analogy to the sit- 
down strikes in the automobile industry referred to in 
National Labor Relations Board v. Fansteel Metallurgical 
Corp., 306 IT. S. 240.”

Mr. Chief Justice Warren, in the Court’s opinion in 
Garner v. State of Louisiana, 82 S. Ct. 248, 253 (1961),
stated, “ We of course are bound by a state’s interpreta­
tion of its own statute and will not substitute our judg­
ment for that of the state’s when it becomes necessary to 
analyze the evidence for the purpose of determining 
whether that evidence supports the findings of a state 
court.”

The gravamen of the offense (City Code, Section 824) 
charged against petitioners was that petitioners incited, 
aided or abetted another to violate the city law or ordi­
nance. The law or ordinance which petitioners were



—  11 —

charged with inciting another to violate was Section 1436 
of the City Code, which latter section makes it unlawful 
to remain on the premises of another after warning not 
to do so.

The evident objective of Section 824 of the City Code 
was the curtailment of City law violations by making it 
unlawful to incite or assist others to violate city laws.

While there has been no occasion for the Alabama ap- 
pellate courts to interpret Section 824 of the City’s Code, 
a very similar state statute, Section 14 of Title 14, Code 
of Alabama, 1940, contains an aiding and abetting statute 
very similar to the city’s law, which says in part as fol­
lows: “ *  *  *  And all persons concerned in the commission 
of a crime, whether they directly commit the act consti­
tuting the offense, or aid or abet (emphasis supplied) its 
commission, though not present, must hereafter be in­
dicted, tried and punished as principals, as in the case of 
misdemeanors. ’ ’

The foregoing state statute has been construed by the 
state courts on many occasions. Davis v. State, 36 Ala. 
App. 573, 62 So. 2d 224, states, “ The words ‘ aid and 
abet’ comprehend all assistance rendered by acts or words 
of encouragement or support. . . . Nor is it necessary to 
show prearrangement to do the specific wrong complained 
of.” (Emphasis supplied.)

In Pruett v. State, 33 Ala. App. 491, 35 So. 2d 115, the 
court said, “ Aid and abet comprehend all assistance ren­
dered by acts or words of encouragement * * citing 
Jones v. State, 174 Ala. 53, 57 So. 31, 32.

Alabama has further ruled, “ The participation in a 
crime and the community of purpose of the perpetrators 
need not be proved by direct or positive testimony, but 
may be inferred from circumstantial evidence. ’ ’ Parsons v. 
State, 33 Ala. App. 309, 33 So. 2d 164.



While the state statute differs from the city law pri­
marily in the fact that the word “ incite”  is not found in 
the state statute, the net effect of the inclusion of the 
word “ incite”  in the city law could do no less than 
strengthen and enlarge the scope of the city’s law.

The salient features of the state decisions, supra, are 
that acts or words of encouragement are sufficient to bring 
an offender within the scope of the statute; that it is not 
necessary to show prearrangement to do the specific wrong 
complained of; and, that the community of purpose may be 
inferred from circumstantial evidence.

As to whether there is any evidence in the record to dis­
close that petitioners did incite or aid others to violate a 
city law, the petition admits in a summary of the evidence 
(p. 4), and in appendix (p. 14a), that a meeting was held 
at the home of Rev. Shuttlesworth; that Rev. Billups had 
driven one student to the meeting and was present during 
the meeting (p. 15a), at which meeting other students were 
in attendance, and that after one student volunteered to 
go to Pizitz at a certain hour, a list was made (ibid). The 
sit-downs were discussed at the meeting (p. 14a); Rev. 
Shuttlesworth made the announcement “ that he would get 
them out of ja il”  (p. 16a), and that other students at the 
meeting participated in the sit-downs (ibid).

It is most difficult in view of the foregoing evidence to 
agree with petitioners’ predicate of fact, upon which they 
base their one question for review by this Court (p. 2), 
namely, that there was “ no evidence”  upon which to rest 
the convictions of the petitioners in the trial court below. 
Every conceivable element of the offense of inciting the 
students to go upon the premises of another and partici­
pate in sit-downs is established by the evidence as admit­
ted in the petition (supra) and as shown in the record. 
The sit-downs were prearranged, volunteers were sought, 
and the volunteers were promised they would be released



from jail. No other rational inference could be drawn from 
the promise of release from jail than that the volunteers 
were to continue their sit-downs on the premises of others 
until they were arrested for trespass, for under the re­
spondent’s general City Code there was no other punitive 
provision in the code under which they could be arrested 
and jailed. Petitioners assert the respondent has a segre­
gation ordinance, which is copied into their petition as 
Section 369 (144) (p. 3), which has already been discussed 
here at length, which petitioners say requires restaurant 
owners or operators to make certain provisions for sepa­
ration of the races in their eating establishments. Cer­
tainly the students could not have been arrested under 
any such ordinance as this, for, as shown in the petition 
(ibid), it only proposes a burden upon the person who 
“ conducts” the restaurant and imposes no sanction or pen­
alty upon would be customers in the eating establishments. 
There is no evidence in the record that the students were 
boisterous or obtrusive in their conduct so as to create a 
breach of the peace.

The solicitation of Rev. Shuttlesworth for volunteers for 
the sit-downs and the promise to get them out of jail 
(supra) left the state court no alternate but to reason­
ably conclude from the evidence that the sit-down demon­
strators were to trespass and be arrested.

In Thompson v, City of Louisville, 80 S. Ct,. 624, 625 
(1960), cited by petitioners, this Court said, “ Decision on 
this question turns not on the sufficiency of the evidence, 
but on whether this conviction rests upon any evidence at 
all.”

In view of the evidence above outlined, the attempt by 
petitioners to parallel the instant case with the Thompson 
case, supra, appears highly incongruous.

It must also be remembered that the same trial court 
which rendered judgment against these two petitioners had



—14 —

before it for consideration and the rendition of judgment, 
ten cases involving trespasses committed by the sit-down 
demonstrators who were counseled by Rev. Shuttlesworth, 
all of whom were sentenced together with these petitioners 
in a common sentencing proceeding (R. 35-39). The ten 
cases (Gober et al., now here in No. 694), involving tres­
pass after warning, together with the two instant cases, 
all involved common counsel and developed out of near 
identical circumstances occurring in different stores. If, 
indeed, the trial court had no knowledge or concept of the 
meaning of the term “ sit-down demonstration” , after hav­
ing just completed hearing ten cases involving nothing but 
“ sit-down”  cases, it would of necessity have to be assumed 
that the trial judge was something more than naive. In 
context with the promised release from jail (pp. 4, 15a, 
16a), there was only one inescapable interpretation which 
the trial court could place upon the term “ sit-down dem­
onstrations”  and that was—a device of remaining on an­
other’s premises after being told to leave, as in Fansteel, 
supra.

Not to be overlooked is the matter of how the question 
of the sufficiency of the evidence was raised in the state 
court. Petitioners’ motion to exclude the evidence, ground 
No. 4 (R. 6), in attacking the sufficiency of the evidence, 
alleged as follows:

“ 4. The evidence against the defendant, a Negro, 
in support of the charge of his violation of 824 the 
General City Code of Birmingham of 1944, clearly in­
dicates (emphasis supplied) that those persons al­
leged to have acted as a result of the aiding and abet­
ting of the defendant, had accepted an invitation to 
enter and purchase articles in the various department 
stores in the City of Birmingham, stores open to the 
public, but had not been allowed to obtain food service 
on the same basis as that offered white persons, be­



cause of their race or color; and, that in furtherance 
of this racially discriminatory practice of the various 
department stores (emphasis supplied) in the City of 
Birmingham, the defendant was arrested. * * *”

In the foregoing motion to exclude the evidence (R. 6), 
which motion is not reviewable by the state appellate 
court, Dudley Brothers Lumber Company v. Long, 109 
So. 2d 684, 268 Ala. 565, the petitioners themselves have 
interpreted the evidence in the trial below as being in­
clusive of the activities of the demonstrators in the de­
partment stores, in adopting the language (R. 6), “ The 
evidence against the defendant(s), a Negro, in support 
of the charge of violation of 824 the General City Code 
of Birmingham of 1944, clearly indicates (emphasis sup­
plied) that those persons alleged to have acted as a re­
sult of the aiding and abetting of the defendant(s) had 
accepted an invitation to enter and purchase articles in 
the various department stores * * etc., and proceeds 
then to state that because of the discrimination of the 
“ various department stores” the defendants were subse­
quently arrested (ibid).

In conclusion, on the subject of whether there was “ any 
evidence” , Garner and Thompson, supra, to support the 
state court’s finding of guilt, your respondent strongly 
urges that every element of the offense of violating Section 
824 of the General City Code of Birmingham of 1944 has 
been more than adequately substantiated by the evidence 
presented below as shown in the record and petition. 
To hold that there was no evidence, as contended by 
petitioners, to support the conviction would, as stated by 
Mr. Justice Harlan in Garner v. State of Louisiana, 82 S. Ct. 
248, 265, “ * * * in effect attribute(s) to the (Louisiana)
Supreme Court a deliberately unconstitutional decision 
* # * ? ?



—  16

ARGUMENT.

Re: Petitioners’ Reasons for Granting- the Writ.

Petitioners’ argument concerning reasons for granting 
the writ should, of course, be confined to their “ Question 
Presented”  (p. 2) for the review of the Court, the sub­
stance of which is, “ * * * has Alabama denied liberty, 
including freedom of speech, secured by the due process 
clause of the Fourteenth Amendment f ”

For very obvious reasons, petitioners have not elabo­
rated upon the rights of property owners as guaranteed 
under the Fifth and Fourteenth Amendments to the Con­
stitution.

Petitioners concede that the doctrine of free speech 
protection has many limitations and cite well known au­
thority in support thereof (p. 7), perhaps the most famous 
of which is Schenck v. United States, 249 U. S. 47. As 
the Court well knows, the defendant in this case was con­
victed for mailing circulars during World War I, which 
circulars were found to be detrimental to this country’s 
war effort. On the circular, among other things, were the 
words, “ Assert Your Rights” , and described arguments 
in support of the war effort “ as coming from cunning 
politicians.”  The right of free speech was not upheld by 
this Court because a danger to the substantive rights of 
others was involved.

In the instant cases, petitioners claim they were assert­
ing their rights in seeking volunteers to test the sub­
stantive rights of private property owners, or, as they 
express it, to perform “ sit-down demonstrations”  (p. 8), 
which are commonly known to be a sitting upon the 
premises of another and refusing to leave until they 
become trespassers and are arrested. Rev. Shuttles-



■— 17

worth’s promise to free the demonstrators from jail con­
clusively establishes this fact. Attention is also invited 
to this fact as borne out in the ten cases involving* the 
demonstrators now here in Gober, et al., before the Court 
under No. 694. The demonstrators in Gober (Parker, R. 
21; West, R. 18) said “ they were not going* to leave” ; a 
demonstrator (Gober, R. 39; Davis, R. 40) was quoted as 
saying “ they were instructed to go into the store and sit- 
down at a white lunch counter, and that they would 
probably be or would be asked to leave, and not to leave 
but remain there until the police arrested them and took 
them out” ; an assistant store manager (Parker, R. 23; 
West, R. 20) quoted demonstrators as saying, “ We have 
our rights,”  when told to leave.

The inciting* of this type of demeanor is what petitioners 
refer to as “ constitutionally protected free expression”
(p .  1 0 ) .

This Court made it clear in Martin v. Struthers, 319 
IT. S. 147, 63 S. Ct. 862, 87 L. Ed. 1313, that, “ Tradition­
ally the American law punishes persons who enter onto 
the property of another after having been warned to keep 
off.”

In Browder v. Gayle, 142 F. Supp. 707, it is clearly stated 
that individuals may elect persons with whom they will do 
business unimpaired by the Fourteenth Amendment.

The case of Williams v, Howard Johnson, 268 F. 2d 845, 
states clearly that restaurants not involved in interstate 
commerce are “ at liberty to deal only with such persons 
as it may elect.”

In the case of Bullock v. U. S., 265 F. 2d 683; cert, denied
79 S. Ct. 1294, 1452, 360 U. S. 909, 932, 3 L. Ed. 2d 1260; 
rehearing denied, 80 S. Ct. 46, 361 U. S. 855, 4 L. Ed. 2d 95, 
it was emphasized that, “ The right of free speech is not 
absolute and this amendment to the Federal Constitution



does not confer the right to persuade others to violate the 
law.” (Emphasis supplied.)

The evident intent in the meeting sponsored and par­
ticipated in by Rev. Billups and Rev. Shuttlesworth was 
to determine whether private ownership and control of 
property was to endure in this country or whether the 
power of a large minority political block could overrule 
this traditional heritage of a free enterprise system.

Protection of one’s property under the Fifth and Four­
teenth Amendments are “ substantive” rights and any 
threat to this substantive right presents a “ clear and 
present danger,”  Schenck v. United States, supra.

Whatever may or may not be morally right in the use 
of one’s own property, sit-down demonstrations have no 
place there if not consented to by the owner, as stated in 
Garner, snpra, in the opinion delivered by Mr. Justice 
Harlan; and whether the act involves racial intolerance, 
prejudice or bias is not of concern under the Fourteenth 
Amendment, where the property is private. See Mr. Jus­
tice Douglas’ concurring opinion in Garner, supra.

In conclusion, and for the foregoing reasons, it is re­
spectfully submitted that the petition for writ of certio­
rari should be denied.

Respectfully submitted,

WATTS E. DAVIS,

WILLIAM C. WALKER,

M r

EARL McBEE,
600 City Hall Building, 

Birmingham, Alabama, 
Attorneys for Respondent.



19 —

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1961.

F. L. SHUTTLESWORTH and CHARLES 
BILLUPS,

Petitioners, 
vs.

CITY OF BIRMINGHAM,
Respondent.

Certificate of Service.

I, Earl McBee, one of the Attorneys for Respondent, 
City of Birmingham, and a member of the Bar of The 
Supreme Court of the United States, hereby certify that 
on the . & .  day of March, 1962, I served a copy of Brief 
on behalf of respondent to Petition for Writ of Certiorari, 
in the above styled and numbered cause, on Jack Green­
berg and on Constance Baker Motley, Attorneys for 
Petitioners, by depositing the same in a United States Post 
Office or mail box, with air mail postage prepaid, ad­
dressed to them at their post office address, namely, 10 
Columbus Circle, New York 19, New York; and on the 
following respective Attorneys of Record for Petitioners 
whose addresses are known to Respondent by depositing 
the same in a United States Post Office or mail box, with 
first class postage prepaid, addressed to Arthur D. Shores, 
1527 5th Avenue, North, Birmingham, Alabama; Orzell 
Billingsley, Jr., 1630 4th Avenue, North, Birmingham, 
Alabama; Peter A. Hall, Masonic Temple Building, Bir­
mingham, Alabama; Oscar W. Adams, Jr., 1630 4th 
Avenue, North, Birmingham, Alabama; and J. Richmond 
Pearson, 415 North 16th Street, Birmingham, Alabama.

...............
Earl McBee,

Attorney for Respondent.

V No. 721.



DRZF LT BILLINGSLEY,
ATTORNEY AT LAW

3510-514 MASONiC BLDG& 
JE3Q » 4th AVENUE NORTH' 

BIRMINGHAM, ALABAMA