City of Florence v. George Appellants' Brief

    The State of South Carolina
IN THE SUPREME COURT

APPEAL FROM FLORENCE COUNTY 
H onorable G. B adger B ak er , J udge

No. 6160

CITY OF FLORENCE., Respondent, 
against

JOHN GEORGE, WARREN JAMES, JOHN W. MIL­
LER, EDWARD McIVER, ERNEST WHITE, 
MICIIEAL MAXWELL, CECIL G U N T E R ,  
SAMUEL GREEN, HAROLD F L E M I N G ,  
JOSEPH STROTHER, CHARLES GARNER, 
MARY HALLOWAY, DOROTHY BROWN, RE- 
MAN DA K1RVEN, BETTY RUSH, CLAUDIA 
WOODS, CLAUDIA L. ECHOLS, GERALDINE 
McBRIDE, ANN HENDERSON, FRED LAW­
RENCE, NECHOLA GEE, HORACE SHAN­
NON, EDDIE LAWRENCE, H E R M A N  E. 
FREDERICK, SAMUEL BRIGGS, WILLIE  
CURLEY, LeROY McCLAIN, LEWIS BROWN, 
MOSES SMOOT, ALFONSO KIRVEN, CE- 
PFIUS, JACKSON, LEROY ELLERBE, CON­
YERS SCIPIO, and ARTHUR JONES, Appel­
lants.

APPELLANTS’ BRIEF

J e n k in s  & P erry ,
Columbia, S. C.,

W il lia m  W . B e n n e t t , 
Florence, S. C.,

Attorneys for Appellants.



INDEX
P age

Questions Involved ................................................  1

Statement ..............................................................  2

Argument:
Question I .......................................................  2
Question II .....................................................  8

Conclusion ...............................................................  10



QUESTIONS INVOLVED
I

Is Article 5, Section 47, Ordinances of the City of 
Florence in violation of Article I, Sections 4 and 5, 
Constitution of the State of South Carolina! (Excep­
tion 3.)

II
Is Article 5, Section 47, Ordinances of the City of 

Florence unconstitutional within the meaning of the 
Constitution of the United States of America! (Ex­
ception 4.)



2 SUPREME COURT____
City of Florence v. George et al.

STATEMENT
Appellants, numbering thirty-four (34) all Negroes, 

were at the time of their arrest high school students. 
They were arrested on March 4, 1960, charged with 
violating Article 5, Section 47, Ordinances of the City 
of Florence, in that they staged a parade upon the pub­
lic streets of Florence without first obtaining a permit 
therefor from the Chief of Police of that City.

Appellants were tried before City Recorder G. C. 
McDonald, without a jury, on April 20, 1960. The Re­
corder found all appellants guilty as charged and sen­
tenced each to the payment of a fine of thirty ($30.00) 
dollars or to serve thirty (30) days in jail.

Thereafter, an appeal of the Recorder’s findings, 
judgment and sentence was argued before Honorable 
G. Badger Baker, Resident Judge, Twelfth Judicial 
Circuit. Judge Baker, on January 5, 1962, issued an 
Order affirming the judgment of the Recorder’s Court.

Notice of Intention to Appeal to the Supreme Court 
of South Carolina was timely served upon the City At­
torney for Florence.

ARGUMENT
Question I

Is Article 5, Section 47, Ordinances of the City of 
Florence in violation of Article I, Sections 4 and 5, 
Constitution of the State of South Carolinaf (Excep­
tion 3.)

Article 5, Section 47, Ordinances of the City of Flor­
ence, for the violation of which appellants stand con­
victed, is as follows:

“No funeral procession, or parade, excepting, 
the forces of the United States Army or Navy, the



SUPREME COURT 
Appeal from Florence County

3

military forces of this State, and the forces of the 
police and fire departments shall occupy, march or 
proceed along any street except in accordance with 
a permit issued by the chief of police and such 
other regulations as are set forth in this Code 
which may apply.

A funeral composed of a procession of vehicles 
shall be identified as such by the display upon the 
outside of each vehicle of a pennant of a type des­
ignated by the traffic division of the police depart­
ment.”

The record shows that appellants formed as a group 
in Trinity Baptist Church and proceeded to walk east 
on Darlington Street to Dargan Street, then south on 
Dargan Street to the point of arrest, all in the City of 
Florence (Tr. p. 103, ff. 410-412). Testimony showed 
that various members of the group carried placards 
containing slogans (Tr. p. 93, ff. 369-383). Over objec­
tion of counsel for appellants, the Recorder refused to 
allow testimony regarding the purpose and meaning 
of the writing on the placards (Tr. p. 88, ff. 349-360; 
p. 97, ff. 385-389).

“The right of the people by organization to co­
operate in a common effort and by a public demon­
stration or parade to attempt to influence public 
opinion in a peaceable manner and for a lawful 
purpose is regarded as among the fundamental 
rights of citizens. Shields v. State (Wis. 1925), 204 
N. W. 486, 40 A. L. R. 954; Chicago v. Trotter 
(1891), 136 111. 430, 26 N. E. 359. Various Courts 
have spoken of this right as existing immemori- 
ally. Certainly it has been given official sanction 
and recognition in the English Common law (see 
Beatty v. Gillbanks (1882), L. R. 9 Q. B. Div. 
(Eng.) 308), by a substantial number of the Su-



4 SUPREME COURT _ 
City of Florence v. George et al.

preme Courts of the several states (State ex rel. 
Garrabad v. Dering (1893), 84 Wis. 585, 36 Am. 
St. Rep. 948, 54 N. W. 1104; Anderson v. Welling­
ton (1888), 40 Kans. 173, 19 Pac. 719; and State 
v. Hughes (1875), 72 N. C. 25), and by the United 
States Supreme Court (77. S. v. Cruishank, 92 U. 
S. 542, 552, 23 L. Ed. 588; Hague v. Committee for 
Industrial Organization, 307 U. S. 496, 513, 83 L. 
Ed. 1425; Schneider v. Irvington, 308 U. S. 147, 
84 L. Ed. 155; Thronhill v. Alabama,,, 310 U. S. 88, 
84 L. Ed. 1093).”

In Anderson v. Wellington, 40 Kans. 173, 19 Pac. 
719, the court said:

“The right of the people * * * by organization 
to cooperate in a common effort and by a public 
demonstration or parade, to influence public opin­
ion and impress their strength upon the public 
mind, and to march upon the public streets of the 
cities * * * with * * * banners * * * is too firmly 
established and has been too often exercised to be 
now questioned, or to be made the basis of an ordi­
nance forbidding same # * *"

The Supreme Court of Michigan, In re Frazee, 63 
Mich. 396, 30 N. W. 72, construing an ordinance pro­
hibiting parades upon the public streets without first 
obtaining consent of the mayer or council of the city, 
held the ordinance unreasonable and invalid in that it 
suppressed what was perfectly lawful conduct and left 
the power of permitting or restraining processions to 
unregulated official discretion. (Italics added.)

In re Frazee was cited with approval by this Court 
in Schloss Poster Advertising Co. v. City of Bock Hill, 
190 S. C. 92, 2 S. E. (2d) 392, a case dealing with an 
ordinance prohibiting the erection of a billboard fac-



SUPREME COURT 5
Appeal from Florence County

ing on any public street without first obtaining a per­
mit to do so from the city council. Mr. Justice Fish- 
burne, speaking for an unanimous Court, said:

“It seems to us clear upon authority and reason 
that if an ordinance is passed by a municipal cor­
poration, which upon its face restricts the right or 
dominion which the individual might otherwise 
exercise over his property without question, not 
according to any general or unifoi'm rule, but so 
as to make the due enjoyment of his own depend 
upon the arbitrary will of the governing authori­
ties of the town or city, it is unconstitutional and 
void, because it fails to furnish a uniform rule of 
action and leaves the right of property subject to 
the despotic will of city authorities who may exer­
cise it so as to give exclusive profits or privileges 
to particular persons. (Citing cases.)”

It is respectfully submitted that this ordinance is 
null and void as violative of Article I, Sections 4 and 
5, Constitution of the State of South Carolina1 in the 
following particulars:

It makes peaceful enjoyment of the right to freedom 
of speech and assembly by appellants and others de­
siring to use the public streets of the City of Florence 
contingent upon the uncontrolled will or whim of the 
Chief of Police, vesting in said official the absolute 
power to issue or to deny permission to exercise said

1  Article I, Section 4: “The General Assembly shall make no 
law respecting an establishment of religion or prohibiting the free 
exercise thereof, or abridging the freedom of speech or of the 
press; or the right of the people peaceably to assemble and to 
petition the Government or any department thereof for a redress 
of grievances.

Article I, Section 5: “The privileges and immunities of citizens 
of this State and of the United States under this Constitution 
shall not be abridged, nor shall any person be deprived of life, 
liberty or property without due process of law, nor shall any per­
son be denied the equal protection of the laws.”



6 SUPREME COURT 
City of Florence v. George et al.

right. This power is made the more absolute in that 
there is provided no right to a hearing or appeal from 
a decision on the part of the Police Chief granting or 
denying an application for a permit. Being forced to 
first obtain a permit before the right can be exercised 
places a prior restraint upon appellants in their en­
joyment of rights to freedom of speech and assembly. 
It is vague, indefinite and uncertain, setting forth no 
standard by which the Chief of Police is to be governed 
in deciding who shall be granted or denied a permit.

City of Darlington v. Stanley, . . . .  S. C. (2d) . .. ., 
122 S. E. (2d) 207, is readily distinguishable from the 
instant case. The Darlington ordinance 2 as found by 
this Court, is patterned after the ordinance under at­
tack in Cox v. New Hampshire, 312 U. S. 569, 85 L. Ed. 
1049 and in Poulos v. New Hampshire, 345 U. S. 395,

2  “Whereas, the City Council of the City of Darlington deems 
it necessary for the preservation of the health, welfare and pro­
tection of the citizens of the City of Darlington, also for the 
preservation of the peace and dignity of said citizens, as well as 
to maintain law and order, to prohibit parades and processions 
within the corporate limits of the City of Darlington, without 
applicants desiring to stage said parades or processions having 
first applied for and secured a special permit from the City Coun­
cil of the City of Darlington to use the public streets and side-

2 3  walks for said parades and processions as hereinafter provided.
“Now, therefore, be it ordered and ordained by the City Coun­

cil of the City of Darlington in council assembled and by author­
ity thereof:

“Section 1. That on and after the adoption and ratification of 
this Ordinance, it shall be unlawful for any person or persons, 
firms or organizations to stage any parade or procession in any 
of the streets or in any other public places within the corporate 
limits of the City of Darlington without first having applied for 
and secured a special permit from the City Council to do so, ex­
cepting funeral processions, the armed forces of the U. S. Army 
or Navy, the military forces of this State and the force of the 
police and fire departments of the City of Darlington.

“Section 2. Such application shall contain the following in­
formation: the time of such proposed parade or procession, the 
streets to be used, the number of persons or vehicles to be engaged

2 4  and the purpose of such parade or procession; and, upon receipt 
of such application, the Mayor or City Council shall, in its dis­
cretion, issue such permit subject to the public convenience and 
public welfare.”



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Appeal from Florence County

7

73 S. Ct. 760; and the decision of this Court in Stanley 
is based upon the reasoning of Cox and Poulos.

In the Cox case the Court held the ordinance defined 
as having a limited objective, that the licensing au­
thority had the limited duty of considering questions 
only of time, place and manner; that the licensing au­
thority did not have the arbitrary power or unfettered 
discretion to refuse the permit. When the New Hamp­
shire statute is examined with these factors in mind, 
it is apparent that it conforms to what the Court laid 
down as the crucial test. First, because of the limited 
questions which the licensing authority can consider, 
it becomes apparent that they may not deny the per­
mit altogether. Secondly, the fixing of time and place 
was not an unwarranted restriction on the right of as­
sembly but was designed with a reasonable purpose in 
mind; namely, the giving to public authorities a notice 
sufficiently far in advance so as to afford it opportu­
nity for proper policing. Thirdly, the statute did not 
vest arbitrary power in the licensing authority but 
prescribed a definite standard to guide the issuance of 
the license; namely consideration only of time, place, 
and manner.

The holding in Poulos, involving the identical ordi­
nance as was construed in Cox, was reached on the 
basis of the decision in favor of constitutionality as 
laid down in Cox. “By its construction of the ordinance 
the state left to the licensing officials no discretion as 
to granting permits, no power to discriminate, no con­
trol over speech. There is therefore no place for nar­
rowly drawn regulatory requirements or authority. 
The ordinance merely calls for the adjustment of the 
unrestrained exercise of religion with the reasonable 
comfort and convenience of the whole city.” Poulos v. 
New Hampshire, supra, at page 766.



8 SUPREME COURT
City of Florence v. George et al.

Question II
Is Article 5, Section 47, ordinances of the City of 

Florence unconstitutional within the meowing of the 
Constitution of the United States of America? (Excep­
tion 4.)

The rights of freedom of speech and assembly, 
granted to the people by the First Amendment to the 
United States Constitution, are embodied in the due 
process and equal protection clauses of the Fourteenth 
Amendment. The Florence ordinance under which ap­
pellants were convicted is unconstitutional in that, on 
its face and in its application, it denys appellants the 
guarantees of the Federal Constitution. The unconsti­
tutionality lies in the fact that it makes the peaceful 
enjoyment of the use of the public streets contingent 
upon the uncontrolled will or whim of the Police Chief 
of Florence, in whom is invested absolute power, with­
out setting forth any standard to govern, and without 
any right of hearing or appeal, to grant or deny a per­
mit to use the said streets, and places a prior restraint 
upon appellants in the exercise of rights of freedom 
of assembly and speech.

In Poulos v. State of New Hampshire, supra. Note 
11, page 766, even though reaching a contrary conclu­
sion based upon a different ordinance, the following 
language is quoted:

“In considering a required permit in Hague v. 
C. I. 0., 307 U. S. 496, at page 502, 59 S. Ct. 954, 
at page 958, 83 L. Ed.

“Mr. Justice Roberts, in considering an ordi­
nance that gave the Director of Public Safety dis­
cretion as to issue of park permits, wrote:



SUPREME COURT 
Appeal from Florence County

9

“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, com­
municating thoughts between citizens, and dis­
cussing 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 communication of views on national ques­
tions may be regulated in the interest of all; it 
is not absolute, but relative, and must be ex­
ercised 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.” 307 U. S. at 
pages 515-516, 59 S. Ct. at page 964, 83 L. Ed. 
1423.”

Again from Poulos: “See * * * Kunz v. People of 
State of New York, 340 U. S. 290, 293-294, 71 S. Ct. 
312, 314-315, 95 L. Ed. 280; Saia v. People of State of 
New York, 334 U. S. 558, 562, 68 S. Ct. 1148, 1150, 92 
L. Ed. 1574. 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 com­
plete discretion to refuse the use in the hands of offi­
cials. ‘The right to be heard is placed in the uncon­
trolled discretion of the Chief of Police.’ 334 U. S. at 
page 560, 68 S. Ct. at page 1150, 92 L. Ed. 1574. ‘(W)e 
have consistently condemned licensing systems which 
vest in an administrative official discretion to grant or 
withhold a permit upon broad criteria unrelated to 
proper regulation of public places.’ 340 U. S. at page 
294, 71 S. Ct. at page 315, 95 L. Ed. 280.”



10 SUPREME COURT
City of Florence v. George et al.

CONCLUSION
For the reasons herein stated, the judgment of the 

Court of General Sessions of Florence County, which 
affirmed the judgment of the City Recorder of Flor­
ence, should be reversed.

Respectfully submitted,
J e n k in s  & P erry ,

Columbia, S. C.,
W il l ia m  W . B e n n e t t ,

Florence, S. C.,
Attorneys for Appellants.

39