Shuttlesworth v Birmingham AL Brief for Respondent

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1965.

No. 5.

FRED L. SHUTTLESWORTH,
Petitioner,

vs.
CITY OF BIRMINGHAM.

On Writ of Certiorari to the Court of Appeals of the 
State of Alabama.

BRIEF FOR RESPONDENT.

EARL McBEE,
WILLIAM C. WALKER,

600 City Hall, 
Birmingham, Alabama.

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



INDEX.
Page

Questions presented ............................    1

Statement of case ........................................    2

Summary of argument ....................................................  8

Argument ............................................................................... 10

Conclusion ..........................................................     88

Cases Cited.

Allison-Russell Withington Co. v. Sommers, 121 So.
42, 219 Ala. 33 ................................................................  11

Andalusia Motor Company v. Mullins, 183 So. 456, 28 
Ala. App. 201, cert, denied 183 So. 460, 236 Ala.
474 ................................................................................. 37,38

Barbour v. State of Georgia, 248 U. S. 454, 39 S. Ct.
316 ...................................................................................  15

Barton v. U. S., 25 Fed. 2d 967, cert, denied 49 S. Ct.
24, 278 U. S. 621, 73 L .  ed. 542 ................................. 37

Benson v. City of Norfolk, 163 Va. 1037, 177 S. E. 222 14
Blair v. Greene, 246 Ala. 28, 18 S. 2d 688 ...............  25
Bouie v. City of Columbia, 84 8 . Ct. 1697, 378 U. S. 347 25 
Cahaba Coal Co. v. Elliott, 62 So. 808, 810, 183 Ala.

298 ...................................................................................  14
Challis v. Pennsylvania, 8 Pa. Sup. 130, 132............  14
City of Chariton v. Fitzsimmons, 54 N. W. 146, 87

Iowa 226 ..................................................................... 14
City of Tacoma v. Roe, 190 Wash. 444, 68 P. 2d 1028 14 
.City v. Sliuttlesworth, 42 Ala. App. 296, 161 So. 2d

796 ............................................................................................. .. • • • • 24
Claassen v. United States, 142 U. S. 140, 146, 12 S. Ct.

169, 35 L. ed. 966 .........................................................  87



11

Clift v. U. S., 22 Fed. 2d 549 .........................................
Cox v. Louisiana, 379 U. S. 536, 85 S. Ct.

453 ................................................................. 18,19,20,29,
Davis v. Wechsler, 263 U. S. 22, 24, 44 S. Ct. 13, 14, 68

L. Ed. 143 ....................................................................
Douglas v. State of Alabama, 380 U. S. 415, 422, 85

S. Ct. 1074 ....................................................................
Drummond v. State, 67 So. 2d 280, 37 Ala. App. 308
Ex Parte Bell, 19 Cal. 2d 488, 122 P. 2d 2 2 ................
Ex Parte Bodkin, 86 Cal. App. 2d 208, 194 P. 2d 588 
Ex Parte Bodkin, 194 Pan. 2d 588, 591, 86 Cal. App.

2d 208 .............................................................................
Fort v. Civil Service Comm, of Alameda County, 38

Cal. Rptr. 625, 392 P. 2d 385 .....................................
Garner v. State of Louisiana, 82 S. Ct. 298, 368 U. S.

157 ...................................................................................
Henry v. State of Mississippi, 379 U. S. 443, 85 S. Ct.

564 ...................................................................................
Herndon v. State of Georgia, 295 U. S. 441, 55 S. Ct. 

794, 79 L. Ed. 1530, rehearing denied 56 S. Ct. 82,
296 U. S. 661, 80 L. Ed. 471.....................................

Hiawassee River Power Co. v. Carolina Tennessee
Power Co., 252 U. S. 341, 40 S. Ct. 330.................

Howison v. Oakley, 23 So. 810, 118 Ala. 215..............
Jones v. Belue, 200 So. 886, 241 Ala. 22 ...................
Long v. Leith, 16 Ala. App. 295, 77 So. 445 ...............
Martin v. State, 81 So. 851, 17 Ala. App. 73.................
Middlebrooks v. City of Birmingham, . .. Ala. App. 

. . . ,  170 So. 2d 424 .................................................. 12,
Milk Wagon Drivers Union v. Meadowmoor Dairies,

312 U. S. 287, 61 S. Ct. 552, 85 L. ed. 836.............
Morgan v. Embry, 85 So. 580, 17 Ala. App. 276 .......
Peabody v. State, 246 Ala. 32, 18 So. 2d 693.............

37

30

15

15
35
28
14

29

28

12

15

15

15
14
38
38
35

14

35
38
26



I l l

Phifer v. City of Birmingham, 42 Ala. App. 282, 160
So. 2d 898, 901 ............................... 3,13,14,17,24,31,

Pierce v. tJ. S., 40 S. Ct. 205, 252 IT. S. 239, 64 L. ed.
542, affirmed 245 F. 878 ................................................

Portland R. L. &  P. Co. v. Railroad Commission, 229
U. S. 397, 33 S. Ct. 829, 57 L. ed. 1248.....................

Shuttlesworth v. City of Birmingham, 42 Ala. App.
296, 161 So. 2d 796, 797 ..............................................

Smith v. McLaughn, 184 P. 2d 177, 81 Cal. App. 2d 815 
State v. Sugarman, 126 Minn. 477, 148 N. W. 446. .
Tarver v. State, 85 So. 855, 17 Ala. App. 424..........
Thompson v. City of Louisville, 362 U. S. 199, 80

S. Ct. 624, 4 L. ed. 2d 654 ...........................................
Thornhill v. State of Alabama, 310 U. S. 106, 60 S.

Ct. 737 ............................................................................
Tinsley v. City of Richmond, 202 Virginia 707, 119 

S. E. 2d 488, app. dismissed, 368 U. S. 1 8 .. . .  14, 21, 
Turnipseed v. Burton, 4 Ala. App. 612, 58 So. 959 . ..
U. S. v. Parillo, 299 F. 714 ............................... .............
United States v. Harris, 347 U. S. 612, 617, 74 S. Ct.

808, 812, 98 L. Ed. 989 .............................................. 25,
United States v. Raines, 362 U. S. 17, 80 S. Ct. 519,

522 ...................................................................................
Wages v. State, 25 Ala. App. 84, 141 So. 709, Cert.

denied 225 Ala. 10, 141 S. 713 ...................................
Webb v. Litz, 39 Ala. App. 443, 102 So. 2d 915..........
Western Railway of Alabama v. Arnett, 34 So. 997,

1000 last paragraph, 137 Ala. 414.............................
White Roofing Co. v. Wheeler, 106 So. 2d 658, 39 

Ala. App. 662, cert, denied 106 So. 2d 665, 268 Ala.
695 ....................................................................................

White v. City of Birmingham, 41 Ala. App. 181, 130
So. 2d 231 .....................................................................

White v. Jackson, 62 So. 2d 477, 36 Ala. App. 643 . .. 
Whitney v. California, 274 U. S. 397, 47 S. Ct. 641, 71 

L. ed. 594 .......................................................................

33

37

35

34
37
14
35

35

28

22
38
37

28

30

26
14

14

38

13
38

35



IV

Williams v. State of Georgia, 349 U. S. 375, 99 L. Ed.
1161 .................................................................................  15

Wright v. State of Georgia, 373 U. S. 284, 83 S. Ct.
1240 .................................................................................  15

Yeats v. Mooty, 175 So. 719, 128 F. Ca. 658 .................  37

Statutes Cited.

Birmingham General City Code of 1944:
Section 1142 .....................................2,3,8,9,11,16,26,27
Section 1231 ............................... .........................3,9,16,27



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1965,

No. 5,

FRED L. SHUTTLESWORTH, 
Petitioner,

vs.
CITY OF BIRMINGHAM.

On W ri t  of Certiorari to the Court of Appeals of the 
State of Alabama,

BRIEF FOR RESPONDENT.

QUESTIONS PRESENTED.

Respondent feels the statements of “ questions pre­
sented”  by petitioner are in some material degree in­
accurate or misleading and should be rephrased.

1. Whether as applied to one who is a member or part 
of a group of ten or twelve persons standing or loitering 
on a sidewalk on a corner in the heart of the business 
district of a city so as to block or interfere with free 
passage of other pedestrians and force them out into the



___9

street occupied by vehicular traffic, absent any question 
or issue of free assembly or free speech, an ordinance 
aimed at promoting free flow of traffic and making it an 
offense to continue to so stand or loiter after having been 
requested by a policeman to move is vague and over­
broad in violation of the Fourteenth Amendment.

2. Whether as applied to one described in question one, 
the two sentences of a paragraph of an ordinance entitled 
“ Streets and sidewalks to be kept open for free passage,”  
and construed by a state court to state a single offense, 
may nevertheless be separated into two elements and as 
thus severed successfully attacked for vagueness or over- 
broadness as though two separate offenses were involved, 
one for obstructing free passage and the other for refusing 
to heed the request of an officer to move.

3. Whether one described in questions one and two 
above, who is tried on a complaint containing two counts, 
the first of which charges violation of the ordinance 
referred to in questions one and two, and the second 
count charging violation of an ordinance construed by the 
state court as making it an offense to refuse or fail to 
comply with an order concerning vehicular traffic, can 
sustain a contention that due process is lacking for total 
absence of evidence to support count two in violation 
of due process, and if so a reversal of the general convic­
tion on the complaint as charged where the penalty for 
only one offense is assessed is warranted.

STATEMENT OF CASE.

Petitioner was charged and convicted in Alabama Cir­
cuit Court on a complaint containing two counts. The 
first count charged the blocking or obstructing of free 
passage on the sidewalk and failure to cease such block­
ing or obstructing free passage after request by a police 
officer to do so as proscribed by Section 1142 of the Gen­
eral City Code of 1944. The second count charged failure



to obey a reasonable and lawful order of a police officer 
in. violation of Section 1231 of such Code. This section 
was construed by the Court of Appeals of Alabama to be 
limited to lawful orders having relation to vehicular traffic 
upon the street. Phifer v. City of Birmingham, 42 Ala. 
App. 282, 160 So. 2d 898, 901.

That court construed 1142 as not involving in its ap­
plication in this case any question of free speech, and 
upheld its constitutionality as thus applied in this case. 
The tendencies of the evidence of the City was sum­
marized and held sufficient to sustain a conviction but 
in which only one sentence was imposed under Counts 
one and two.

The findings of the Court of Appeals both that the peti­
tioner was in violation of 1142 by blocking or obstructing 
free passage upon the sidewalk and failing to clear the 
blockage or obstruction after being requested by a police 
officer to do so and that no first amendment freedoms were 
involved in the incident in the nature of free speech or 
free assembly is amply supported by the record. Also we 
feel the evidence was sufficient to support a conviction 
under Count two relating to 1231.

We here make reference to the evidence in the record 
which we feel fully supports the conclusion of the Court 
of Appeals of Alabama.

The following facts were established by the evidence 
introduced in the trial court. On April 4, 1962, at about 
10:30 A. M., Officer Robert E. Byars, Jr., observed the 
petitioner, along with James Phifer and three or four 
other people walking south on 19th Street toward 2nd 
Avenue, North, Birmingham, Alabama (R. 16, 19). Officer 
Byars then entered Newberry’s Department Store at its 
alley entrance and walked to the front of the store at 
19th Street and 2nd Avenue, North (R. 16, 17). When he 
got to the front entrance he saw the petitioner standing 
in a group of ten or twelve people (R. 17, 27, 38). They



4

were on the northwest corner of 2nd Avenue and 19th 
Street (R. 17, 27, 40, 59). The group was standing (R. 
17, 38). The traffic light changed a number of times while 
they stood there at the intersection (R. 36). The group 
blocked pedestrian traffic to such an extent that some 
people walking east on the north side of 2nd Avenue had 
to walk into the street, thereby interfering with vehicular 
traffic1 (R. 17, 20, 28, 39). Petitioner was a member of 
this group (R. 17, 18). Officer Byars watched the group 
for a minute to a minute and a half before accosting them 
(R. 18, 26, 28). Officer Byars then walked up to the group 
and informed them they would have to move on and clear 
the sidewalk so as to allow free passage of pedestrian 
traffic and not obstruct the sidewalk (R. 18, 27, 28). While 
Officer Byars was talking to the group he was observed 
by Officer James Paul Renshaw, a police patrolman on 
motorcycle (traffic) duty (R. 40, 43, 47). Officer C. W. 
Hallman, a traffic policeman (R. 59), Officer John D. 
Allred, police patrolman also on traffic duty (R. 66, 70), 
and Cecil W. Davis, a traffic officer (R. 73, 74).

When Officer Byars first spoke to the group requesting 
them to move (R. 28, 31, 41, 47, 49), only a small part 
moved. Petitioner did not move (R. 18, 41, 49, 60). After 
a short while, the officer informed the group a second 
time they would have to move and not obstruct the side­
walk in order to permit pedestrian traffic to move un­
hampered (R. 18, 28). Petitioner and some others in the 
group did not move and petitioner stated: “ You mean 
to say we can’t stand here on the sidewalk!”  (R. 18, 28.) 
Officer Byars did not do or say anything for a short period 
and then he told the group that he was telling them the 
third and last time to move or they would be arrested 
for obstructing the sidewalk (R. 18, 41, 60). Petitioner

1 The onlv logical conclusion to he drawn from the testimony 
of the witnesses that pedestrians were forced into the street is that 
such pedestrians interfered with vehicular traffic in the street.



was still in the group (R. 18, 28, 41, 49, 59, 60, 74). Every­
body began to move but him (R. 28). Petitioner did not 
move but made the statement “ You mean to tell me we 
can’t stand here in front of this store!”  (R. 18.) Officer 
Byars then informed petitioner that he was under arrest, 
after which time petitioner moved away saying: “ Well, 
1 will go into the store”  (R. 18, 20, 41, 52). Officer Byars 
followed petitioner into Newberry’s store and took him 
into custody (R. 18, 19).

Officer Byars had heard that a boycott or selective buy­
ing campaign was in progress at the time he arrested peti­
tioner, but he had not been informed by his superiors 
that such boycott or selective buying campaign was going 
on and received no assignment relating to it (R. 24, 25). 
Officer Byars did not know either petitioner or James S. 
Phifer, co-defendant in Circuit Court, at the time he ar­
rested them (R. 16, 22, 23). In fact, this is corroborated 
by Robert J. Norris, a defense witness when he testified 
that Officer Byars never called petitioner by name (R. 99). 
In fact, even petitioner adimts that Officer Byars did not 
call him by name.

Officer James P. Rcnshaw, who was going south on 19th. 
Street between 3rd Avenue and 2nd Avenue (R. 40), 
testified he saw the group talking to Officer Byars. Officer 
Renshaw was on a motorcycle and he got off and went to 
Officer Byars (R. 41). Officer Renshaw reached Officer 
Byars in time to hear him tell the group the third time 
to move (R. 41, 49). Officer Renshaw was present when 
petitioner was arrested (R. 52), but he did not assist in 
the arrest (R. 48). No one assisted Officer Byars in mak­
ing the arrest.1 Officer Renshaw testified that there were

1 While Officer Renshaw testified that he assisted Officer Byars 
in the arrest, elaboration of his testimony revealed his assistance 
consisted of nothing more than being present (R. 48). Tn fact, 
the petitioner admitted that Officer Byars was the arresting officer 
(R. 112, 113) and this was corroborated by James S. Phifer (R. 
128).



— 6 —

about eight or ten or twelve people in the crowd when 
told the third time to move (R. 49) and that some may 
have moved off at the time. Officer Byars told petitioner 
he was under arrest (R. 52). Officer Renshaw had heard 
that the Negroes of the City of Birmingham were engaged 
in a selective buying campaign but he knew of no orders 
issued by his superiors concerning such campaign (R. 43, 
44). At the time Officer Byars arrested petitioner, Officer 
Renshaw knew petitioner but didn’t know James Phifer 
(R. 40). Although he didn’t know James S. Phifer by 
sight he knew he was a notorious person in the field of 
civil rights in the City of Birmingham (R. 46).

Officer Hallman testified that he was a traffic policeman 
working traffic at the intersection of 2nd Avenue, North, 
and 19th Street (R. 59). He first saw the group talking 
to Officer Byars (R. 59). When he first saw the group he 
was talking to Officer Davis about a message to call his 
(Officer Hallman’s) home (R. 59, 61). Officer Hallman 
and Davis arrived in time to hear him say to the group, 
‘  ‘ I am telling you for the third time you will have to move 
on, you are blocking the sidewalk”  (R. 59). There was 
still five or six in the group and they all moved away ex­
cept petitioner (R. 60) and Officer Byars then arrested 
petitioner (R. 60). At the time of petitioner’s arrest 
Officer Hallman had heard about a selective buying cam­
paign but had heard nothing from his superiors concern­
ing such campaign (R. 63).

Officer John D. Allred, patrol division on traffic duty, 
testified he had left roll call (R. 69) and was on his way 
to 3rd Avenue and 20th Street (R. 66, 68, 69) where he 
was to work traffic (R. 66, 68). He was about twenty-five 
or thirty feet south of the alley by Newberry’s and was 
giving directions to some people when he first heard 
Officer Byars tell the group they would have to move on 
(R. 66, 69). Officer Allred did not go to Officer Byars 
until after the arrest of petitioner but continued to give



directions to the people he was talking to (R. 67, 70). 
Officer Allred estimated the size of the group at maybe 
ten or fifteen or twenty people (R. 71).

At the time of petitioner’s arrest Officer Allred did 
not know petitioner (R. 68).

Officer Cecil W. Davis testified he was patroling park­
ing meters on a motorcycle (R. 76) but at the time he 
first observed the group talking to Officer Byars he was 
delivering a message to Officer Hallman (R. 77). Officer 
Davis was with Officer Hallman when he first observed 
the group with Officer Byars (R. 73). He testified there 
was about ten or twelve in group (R. 74). Officer Davis 
crossed the street to where Officer Byars was in time 
to hear him tell petitioner he was under arrest (R. 74), 
and there was still a crowd around petitioner at that 
time (R. 74). He heard Officer Byars tell petitioner he 
was under arrest (R. 74). At the time of petitioner’s 
arrest Officer Davis had heard about the selective buying 
campaign but no one at police headquarters had dis­
cussed it with him (R. 78). Officer Davis knew both 
petitioner and James S. Phifer.

The evidence is without dispute that Byars did not 
know Shuttlesworth prior to the arrest (R. 29) nor did 
Shuttlesworth know Byars (R. 113). Byars did not ad­
dress Shuttlesworth by name (R. 112).

Byars did not know Phifer prior to the arrest (R. 16, 
22-23). Byars also rvas not known to Phifer (R. 128). 
Officer Byars was on traffic duty and had no assignment 
relating to the boycott he had heard was supposed to 
be in progress (R. 24).

No claim is made by petitioner or his witnesses of any 
activity involving freedom of speech or assembly. As 
Shuttlesworth expressed his version of the incident they 
were walking as pedestrians walk and simultaneously as 
they approached the light at the corner the officer came 
out of the door and said “ move on”  (R. I l l ,  112).



8

SUMMARY OF ARGUMENT,

I.

Count one of respondent’s complaint charged petitioner 
with violation of Section 1142 of the General Code of 
Birmingham. Count two of respondent’s complaint 
charged petitioner with violation of Section 1231 of the 
General Code of Birmingham. Each section and each 
count based thereon embrace a single offense. Petitioner 
argues that if either count is based on a constitutionally 
vulnerable section his conviction should be reversed. 
Both sections are however, constitutionally valid. In 
addition to this, however, petitioner has not followed 
the proper state court procedures to raise the question 
insofar as Section 1231 is concerned and this Honorable 
Court should not even consider the validity of this sec­
tion.

II.

Section 1142 of the General Code of Birmingham in­
sofar as it makes it unlawful to stand or loiter on any 
sidewalk of the city after having been requested by a 
police officer to move on is neither vague, overbroad, 
nor constitutionally objectionable. As written the ordi­
nance does not give policemen absolute or arbitrary 
power to order any citizen off the streets. As written 
it is a valid police regulation. Neither the provisions 
of Section 1142 nor its construction and application in 
this case involve free speech or any other freedoms pro­
tected by the First-Fourteenth Amendments. Section 1142 
gives fair notice of its proscriptions. The Alabama Court 
did not construe this section as shifting the burden of 
proof to the defendant to disprove that he was loitering 
so as to obstruct free passage.



III.
Section 1142 of the General Code of Birmingham, in­

sofar as it makes it unlawful to so stand, loiter, or walk 
on any sidewalk in the city as to obstruct free passage 
thereon is not vague and overbroad. This provision does 
not involve any first amendment freedom and it has not 
been construed to apply to any such situation.

IV.

The conviction of petitioner for violation of Section 
1231 of the General Code of Birmingham, making it un­
lawful to refuse to comply with a lawful police order 
is based on ample evidentiary support, but even if it 
were held otherwise, reversal of the conviction of peti­
tioner would not be warranted because his conviction is 
sustained under Count one.



10

ARGUMENT.

I.

Point I of Petitioner’s Argument Is Without Merit.

Petitioner in this section of his argument argues that 
the complaint charged two separate offenses in Count One 
and a third offense in Count Two with the conclusion that 
reversal should follow if either is constitutionally vul­
nerable.

In reply to the contention of petitioner in Section 1 of 
his Argument, pages 13 and 14 of his brief, citing Strom- 
berg v. Carlson; Williams v. North Carolina, and Thomas 
v. Collins, we take the position that the principle of these 
cases cannot be given application in the manner employed 
to make two charges out of Count One, which is based 
upon Ordinance 1142, nor to present for review the Con­
stitutionality vel non of Ordinance 1231.

First, the holding of these cases is simply that where 
a conviction is upheld in a state appellate court on plead­
ings charging more than one violation, the verdict or 
judgment being general, and it being impossible to know 
whether the conviction was upon the one charged or the 
other, the conviction will be reversed if any of the charges 
are unconstitutional, because the conviction may have 
been based thereupon.

The record in this case clearly shows in respect to 
count one that only one charge was lodged against peti­
tioner under this count. Neither the trial court nor the 
Alabama Court of Appeals, nor the City, nor anyone, 
prior to certiorari to this Honorable Court, ever men­
tioned, or so far as we know, ever imagined or speculated 
that the petitioner was charged with loitering or stand­
ing upon the sidewalk so as to obstruct free passage



thereupon and also with merely standing or loitering on 
the sidewalk after being requested to move on.

No mention of such contention was ever made in any 
demurrer or other pleading filed by petitioner nor at any 
other time so far as the record shows.

The complaint filed by the attorney and upon which 
Shuttlesworth was tried connects and ties the two sen­
tences of the last paragraph of 1142 together in one 
charge.

Count one1 charges defendant loitered upon the side­
walk, a member of or within a group which obstructed 
free passage or did loiter or stand while in said group (we 
interpolate, the group loitering or standing to block free 
passage on the sidewalk) after having been requested by 
a police officer to move on.

There can be no doubt whatsoever that the Alabama 
Court of Appeals construed the ordinance and the com­
plaint to charge both a blocking or obstruction of free 
passage and also a failure to move after having been re­
quested to do so by a police officer. The evidence sum­
marized by the court spelled out both elements of ob­
structing and request to move.2

— 11 —

1 Count One. “ Comes the City of Birmingham, Alabama, a mu­
nicipal corporation, and complains that F. L. Shuttlesworth, within 
twelve months before the beginning of this prosecution and within 
the City of Birmingham, or the police jurisdiction thereof, did 
stand, loiter or walk upon a street or sidewalk within and among 
a group of other persons so as to obstruct free passage over, on or 
along said street or sidewalk at, to-wit: 2nd Avenue North, at 19th 
Street or did while in said group stand or loiter upon said street 
or sidewalk after having been requested by a police officer to move 
on, contrary to and in violation of Section 1142 of the General City 
Code of Birmingham of 1944, as amended by Ordinance Number 
1436-F" (R. 2-3).

- We have quoted this summary on page 34 of this brief.



— 12

In the case of Middlebrooks v. City of Birmingham,
. . . Ala. App. . . 170 So. 2d 424, the Alabama Court
of Appeals followed the construction in the Phifer and 
Shuttlesworth cases, of the second paragraph of Section 
1142, in the following language:

“ This is the fourth case in the last year wherein 
this court has considered the second paragraph of 
Section 1142 as amended. That provision is directed 
at obstructing the free passage over, on or along a 
street or sidewalk by the manner in which a person 
accused stands, loiters or walks thereupon. Our de­
cisions make it clear that the mere refusal to move 
on after a police officer’s requesting that a person 
standing or loitering should do so is not enough to 
support the offense.”

“ That there must also be a showing of the accused’s 
blocking free passage is the ratio decidendi of Phifer 
v. City of Birmingham, 42 Ala. App. 282, 160 So. 2d 
898, and Shuttlesworth v. City of Birmingham, 42 
Ala. App. 296, 161 So. 2d 796. In this respect, we 
distinguish our reasoning from that employed by the 
Virginia Supreme Court of Appeals in Tinsley v. City 
of Richmond, 202 Va. 707, 119 S. E. 2d 488.”

Under this construction it is clear that only one offense 
is contained in the second paragraph of Section 1142 as 
amended. As construed, this Section is a reasonable exer­
cise of the state’s police power and is constitutionally 
valid. This construction placed on this ordinance in the 
Phifer, Shuttlesworth and Middlebrooks cases is also 
binding upon this Honorable Court. The rule in this re­
gard has been stated in Garner v. State of Louisiana, 82 
S. Ct. 298, 368 U. S. 157, as follows:

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



As to Ordinance 1231, and as to which we feel only a 
very general and possibly no serious effort was made in 
petitioner’s brief to attack its constitutionality we respect­
fully urge the record does not present its constitutionality 
for review. The method sought to be employed to raise 
the constitutional question in the trial court was by motion 
to quash and demurrer. The Court of Appeals of Alabama 
did not reach for consideration its constitutionality be­
cause of the failure of petitioner to comply with state court- 
procedural requirements. Petitioner on page 11 of his 
brief concedes this.1

In the Shuttlesworth case, the Alabama Court of Appeals 
adopted its ruling in the companion, Phifer, case, with 
respect to the assignments relating to the motion to quash 
and the ruling on demurrer, and did not further deal with 
these assignments of error.

The Court of Appeals of Alabama held in the Phifer 
case, 160 So. 2d 898, 42 Ala. App. 282, ruling on motion to 
quash was not reviewable on appeal. White v. City of 
Birmingham, 41 Ala. App. 181, 130 So. 2d 231.

1 ‘ ‘In Phifer, the Alabama Court of Appeals sustained the over­
ruling of a motion to quash and demurrers by petitioner Shut- 
tlesworth’s co-defendant below, these documents being identical to 
those filed on behalf of Shuttlesworth. Phifer’s constitutional at­
tack on Section 1142, the loitering ordinance, was rejected on the 
merits; Phifer’s challenge to Section 1231 was not reached, because 
While the demurrer in its caption is directed to the complaint “ and 
to each and every count thereof, separately and severally,” it is 
really interposed to the two counts of the complaint jointly.’ 42 
Ala. App. at . . . ., 160 So. 2d at 900. Whatever the force under 
state law of this esoteric ruling that a paper expressly captioned 
‘several’ is to be deemed ‘ joint’ , it is clear that the ground is in­
sufficient to bar this court’s review on the merits of the attack 
on Section 1231. Any ‘objection which is ample and timely to 
bring the alleged federal error to the attention of the trial court 
and enable it to take appropriate corrective action is sufficient to 
serve legitimate state interests, and therefore, sufficient to preserve 
the claim for review here.’ Douglas v. Alabama, 380 U. S. 415, 422, 
see Henry v. Mississippi, 379 U. S. 443 (1965 ). In any event, the 
matter is” immaterial because petitioner's attack on Section 1142 is 
dispositive of the case. See pp. 17-18 infra.’



— 14 —

The assignment of error relating to the ruling on de­
murrer was overruled for the reason both that the several 
grounds of demurrer assigned were so broad in scope as 
to embrace the whole complaint,2 and the assignment of 
error was so broad as to embrace the whole complaint. 
Consequently the demurrer and the assignment of error 
based on the ruling on it could be sustained only if the 
complaint was bad in its entirety and as to each count.

These principles of procedural law have been well es­
tablished and uniformly applied by the Appellate Courts 
of Alabama over a half century. Cahaba Coal Co. v. El­
liott, 62 So. 808, 810, 183 Ala. 298; Allison-Russell With- 
ington Co. v. Sommers, 121 So. 42, 219 Ala. 33; Western 
Railway of Alabama v. Arnett, 34 So. 997, 1000 last para­
graph, 137 Ala. 414; Howison v. Oakley, 23 So. 810, 118 
Ala. 215; Webb v. Litz, 39 Ala. App. 443, 102 So. 2d 915.

The Alabama Appellate Court did discuss the constitu­
tional attack upon the last paragraph of 1142 and found 
that it was not aimed at free speech, but was a legitimate 
exercise of police power by the municipality to enact and 
enforce reasonable regulations for the control of traffic and 
the use of its streets and sidewalks.

In support of this conclusion the Alabama Court cites; 
decisions from other states including Washington, Vir­
ginia and California.3 In Section II of this brief we shall

2 The Court of Appeals set out the grounds of demurrer chal­
lenging the ordinances in the Phifer case. It is clear that each of 
the grounds attacked both ordinances 1142 and 1231 in the conjunc­
tive and therefore were directed to both counts. Phifer v. City of 
Birmingham, 160 So. 2d 898, 899.

a City of Tacoma v. Roe, 190 Wash. 444, 68 P. 2d 1028; Benson 
v. City of Norfolk, 163 Va. 1037, 177 S. E. 222; Ex Parte Bodkin, 
86 Cal. App. 2d 208, 194 P. 2d 588. Other cases which might also 
have been appropriately cited include: Minnesota, State v. Sugar- 
man. 126 Minn. 477, 148 N. W. 446; Pennsylvania, Challis v. 
Pennsylvania, 8 Pa. Sup. 130, 132; Iowa, City of Chariton v. Fitz­
simmons, 54 N. W. 146, 87 Iowa 226; and also the later Virginia 
case, Tinsley v. City of Richmond, 202 Virginia 707, 119 S. E. 2d 
488, app. dismissed, 368 U. S. 18.



attempt to elaborate upon the correctness of the ruling of 
the Court of Appeals sustaining the constitutionality of 
1142.

To return to Count two involving 1231, the United States 
Supreme Court has recognized the right of the State Court 
to apply reasonable procedural rules of the state even to 
the point that it may properly decline to rule on a con­
stitutional question and when it does in good faith apply 
consistently and uniformly a well established procedural 
rule the constitutional question is not before the United 
States Supreme Court. Barbour v. State of Georgia, 248 
IT. S. 454, 39 S. Ct. 316; Herndon v. State of Georgia, 295 
IT. S. 441, 55 S. Ct. 794, 79 L. Ed. 1530, rehearing denied 
56 S. Ct. 82, 296 U. S. 661, 80 L. Ed. 471; Hiawassee River 
Power Co. v. Carolina Tennessee Power Co., 252 U. S. 
341, 40 S. Ct. 330; Williams v. State of Georgia, 349 U. S. 
375, 99 L. Ed. 1161.

More recent decisions of this court in Douglas v. State 
of Alabama, 380 U. S. 415, 422, 85 S. Ct. 1074, and Henry 
v. State of Mississippi, 379 U. S. 443, 85 S. Ct. 564, are 
cited in the last sentence of footnote 9 on page 11 in peti­
tioner’s brief quoted by us in footnote 3 on page 13, ante. 
These cases and older cases such as Wright v. State of 
Georgia, 373 U. S. 284, 83 S. Ct. 1240, and Davis v. Wech- 
sler, 263 U. S. 22, 24, 44 S. Ct. 13, 14, 68 L. Ed. 143, recog­
nize the right of this Honorable Court to examine the pro­
cedural rule in question and determine if any reasonable 
State interest is conserved by the application of the pro­
cedural rule and whether it may in fairness be invoked.

We think the ancient rules applied in this case were 
fairly and properly applied. If is of interest that after
citing the first two of the above cases, petitioner indicates 
he is not pressing for the application of these eases here, 
but chooses to rely instead on his claim of unconstitution­



— 16—-

ality of 1142.4 This minimizing of reliance upon these 
cases seems to be implicit in the strategy employed in Sec­
tion IV of petitioner’s brief in which he addresses his argi- 
ment primarily to a claimed lack of evidence to support 
a conviction on this count and the statement5 made on 
page 29 of his brief that but for the restrictive construc­
tion placed on 1231 by the Court of Appeals of Alabama, it 
would be subject to the vices he claims inheres in 1142.

Point II (A & B) of Petitioner’s Argument 
Are Each Without Merit.

II-A.

THE LAST SENTENCE OF 1142 IS NOT VAGUE 
OR OVERBROAD.

Petitioner in this section of his argument seeks reversal 
of the conviction of petitioner by attempting to split the 
last paragraph of Ordinance 1142 in half and to separate 
the last sentence from the first sentence and in so doing 
contends that such sentence is over broad and in violation 
o f  the First and Fourteenth Amendments.

We have already in Section I of this brief presented 
our contention that this artificial attempt to split this 
paragraph into separate charges is not permissible in this 
ease. The charge made against petitioner in Count one 
and proven by the City’s evidence was that he, together 
with or in a group of ten or twelve blocked or obstructed

4 “ In any event, the matter is immaterial because petitioner’s at­
tack on Section 1142 is dispositive of the case. See pp. 13-14 
infra.” Pet. brief, p. 11.

3 “ If construed as broadly as it is written, Birmingham Code 
1231, making it ‘unlawful for any person to refuse or fail to com­
ply with any lawful order, signal or direction of a police officer,’ 
would be objectionable for the reasons stated in pp. 14-15, supra. 
The Alabama Court of Appeals, however, has put a quite narrow 
construction on the section.”  Pet. brief, p. 29.



— 17 —

free passage on the sidewalk and failed to move and 
clear the sidewalk for free passage after having been re­
quested to do so by the officer on three separate occasions.

The ordinance in question, either considering the last 
paragraph as containing one or two proscriptions, was 
not in this case construed to prohibit or interfere with 
freedom of speech or any other amendment one freedoms 
or rights. The Court of Appeals of Alabama expressly 
stated they were not applying it to any situation involv­
ing such constitutionally guaranteed freedom. City of 
Birmingham v. Phifer, 42 Ala. App. 282, 160 So. 2d 
898, 900:

“ Section 1142, as amended, of the General City 
Code of Birmingham, is not aimed at free speech. It 
directs the manner in which sidewalks and streets 
may not be used. A municipality has the right under 
its police power to enact and enforce reasonable regu­
lations for the control of traffic and the use of its 
streets and sidewalks.”

On its face and under the construction placed upon 1142 
it proscribes conduct, not a facet of freedom of speech and 
assembly, which results in obstructing the free and un­
impeded use of the sidewalks and streets for pedestrians 
and vehicular traffic respectively.

No contention was made at any time that Shuttlesworth 
and his associates were involved in any facet of free 
speech or free assembly on the occasion of his arrest. The 
record clearly negates any such claim. Petitioner and each 
of his witnesses claimed that they were merely walking 
along the sidewalk as any other citizen to get from one 
point in the City to another. There was no demonstration. 
There was no picketing. There was no parading. There 
was not even any hint of any activity involving freedom 
of speech or assembly or- any other first, amendment 
freedom.



18 —

All that is here involved is the simple right of the mu­
nicipality under its police power to control and regulate 
the use of its sidewalks and streets as passageways to 
permit pedestrians and vehicular traffic a safe, proper 
and unimpeded use thereof.

The constitutionality of 1142 must be tested in this case 
by the principle given application by this Honorable Court 
in Cox v. New Hampshire, and Cox v. Louisiana, 379 
U. S. 536, 85 S. Ct. 453.

These cases illustrate the principle long adhered to by 
this Honorable Court that unless by its express language 
or by construction placed upon it by the state courts, an 
ordinance or statute impinges upon the first amendment 
freedoms, such ordinance or statute is not unconstitu­
tional when its application is limited to simply conserving 
public convenience and safety in the use of sidewalks and 
streets for the purpose they were designed.1

In Cox v. Louisiana, a statute2 on its face aimed at free 
and unobstructed passage upon public sidewalks and 
streets was construed by the Supreme Court of Louisiana

1 Mr. Justice Goldberg in the majority opinion in Cox v. Louisi­
ana recognizes that even freedom of speech and assembly may have 
to give way to overpowering public convenience and safety in use 
of the streets (Headnotes 11-13).

-  “ Obstructing Public Passages. No person shall wilfully ob­
struct the free, convenient and normal use of any public sidewalk, 
street, highway, bridge, alley, road, or other passageway, or the en­
trance, corridor or passage of any public building, structure, water 
craft or ferry, by impeding, hindering, stifling, retarding or restrain­
ing traffic or passage thereon or therein.

“ Providing however nothing herein contained shall apply to a 
bona fide legitimate labor organization or to any of its legal activi­
ties such as picketing, lawful assembly or concerted activity in the 
interest of its members for the purpose of accomplishing or secur­
ing more favorable wage standards, hours of employment and 
working conditions.”



to be applicable in a first amendment situation involving 
a civil rights demonstration.8 Because of this construc­
tion by the Louisiana Court, this Honorable Court held 
the statute as thus applied to Cox to be unconstitutional 
and reversed his conviction.

“ (19) It is, of course, undisputed that appropriate, 
limited discretion, under properly drawn statutes or 
ordinances, concerning the time, place, duration, or 
manner 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 appli­
cation, free from improper or inappropriate consid­
erations 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. State of New

3 In Cox there appeared to be no statute providing for peaceful 
parades or demonstrations. The 1944 General City Code of Bir­
mingham made provision for peaceful parades or demonstrations 
in Section 1159:

“ Sec. 1159. Parading. It shall be unlawful to organize or hold, 
or to assist in organizing 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.

T o 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 commission shall grant a written permit 
for such parade, procession or other public demonstration, prescrib­
ing the streets or other public ways which may be used therefor, 
unless in its judgment the public welfare, peace, safety, health, de­
cency, good order, morals or convenience require that it be refused. 
It shalf 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.”



Hampshire, supra, 812 U. S. at 576, 61 S. Ct. at 766. 
See Poulos v. State of New Hampshire, supra.

“ (20) But here it is clear that the practice in 
Baton Rouge allowing unfettered discretion in local 
officials in the regulation of the use of the streets for 
peaceful parades and meetings is an unwarranted 
abridgment of appellant’s freedom of speech and as­
sembly 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. (Emphasis supplied.)

“ For the reasons discussed above the judgment of 
the Supreme Court of Louisiana is reversed.”  Cox v. 
Louisiana, 85 S. Ct. at page 466.

The statement from Cox v. Louisiana above quoted 
serves to distinguish that case from the present one. It 
also sei’ves to distinguish a host of other cases relied 
upon by petitioner in his brief. Most of these are referred 
to by Mr. Justice Goldberg in his statement (85 S. Ct. 453, 
at page 464):

“ (10) Appellant, however, contends that as so con­
strued and applied in this case, the statute is an un­
constitutional infringement on freedom of speech and 
assembly. This contention on the facts here pre­
sented raises an issue with which this Court has 
dealt in many decisions. That is, the right of a State 
or municipality to regulate the use of city streets and 
other facilities to assure the safety and convenience 
of the people in their use and the concomitant right 
of the people of free speech and assembly. See Lovell 
v. City of Griffin, 308 IT. S. 444, 58 S. Ct. 666, 82 L. Ed. 
949; Hague v. CIO, 307 IT. S. 496, 59 S. Ct. 954, 83 L. 
Ed. 1423; Schneider v. State of New Jersey, 308 IT. S. 
147, 60 S. Ct. 146, 84 L. Ed. 155; Thornhill v. State of



Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; 
Cantwell v. State of Connecticut, 310 U. S. 296, 60 
S. Ct. 900, 84 L. Ed. 1213; Cox v. State of New Hamp­
shire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Lar- 
gent v. State of Texas, 318 U. S, 418, 63 S. Ct. 667, 87 
L. Ed. 873; Saia v. People of State of New York, 334 
U. S. 558, 68 S. Ct. 1148, 92 L. Ed. 1574; Kovacs v. 
Cooper, 336 U. S. 77, 69 S. Ct. 448, 93 L. Ed. 513; 
Niemotko v. State of Maryland, 340 U. S. 268, 71 
S. Ct. 325, 328, 95 L. Ed. 267, 280; Kunz v. People of 
State of New York, 340 U. S. 290, 71 S. Ct. 312, 95 
L. Ed. 280; Poulos v. State of New Hampshire, 345 
IT. S. 395, 73 S. Ct. 760, 97 L. Ed. 1105.”

Petitioner also contends that this ordinance failed to 
give him fair notice as to its proscriptions. The enact­
ment here treated by petitioner as the “ ordinance”  is the 
last sentence of Section 1142:

“ It shall also be unlawful for any person to stand 
or loiter upon any street or sidewalk of the city after 
having been requested by any police officer to move.”

Even if this sentence is taken out of context and sepa­
rated from the first sentence it is still a valid enactment. 
An enactment almost identical to the above was consid­
ered in the case of Tinsley v. City of Richmond, 202 Va. 
707, 119 S. E. 2d 488. In that case as in this one, the at­
tack was directed at the vagueness, ambiguity and lack 
of standards in the ordinance.

It is admitted by the opinion in Tinsley that the ordi­
nance does confer discretionary power on police officials 
but the court pointed out the following exception:

“ We have, however, also recognized a well estab­
lished exception to this rule. This exception applies 
in instances where it is difficult or impractical to lay



down a definite or comprehensive rule, or where the 
discretion relates to the administration of a police 
regulation and is essential to the public morals, 
health, safety and welfare.”

Another statement of this rule is found in Tinsley where 
it quotes 12 A. L. R. 1435:

“ It is also well settled that it is not always neces­
sary that statutes and ordinances prescribe a specific 
rule of action, but, on the other hand, some situations 
require the vesting of some discretion in public of­
ficials, as for instance, where it is difficult or imprac­
ticable to lay down a definite, comprehensive rule, or 
the discretion relates to the administration of a po­
lice regulation and is necessary to protect the public 
morals, health, safety and general welfare.”

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

“ . . . The duty of police officers, it is true, is ‘ not 
merely to arrest offenders, but to protect persons from 
threatened wrong and to prevent disorder. In per­
formance of their duties they may give reasonable di­
rections.’ People v. Nixon, 248 N. Y. 182, 188, 161 
N. E. 463, 466. Then they are called upon to deter­
mine both the occasion for and the nature of such di­
rections. Reasonable discretion must, in such mat­
ters, be left to them, and only when they exceed that 
discretion do they transcend their authority and de­
part from their duty. The assertion of the rights of 
the individual upon trivial occasions and in doubtful- 
cases may be ill-advised and inopportune. Failure, 
even though conscientious, to obey directions of a po­
lice officer, not exceeding his authority, may interfere



with the public order and lead to a breach of the 
peace.”  People v. Galpern, 259 N. Y. 279, 181 N. E. 
572, 83 A. L. R. 785 (Ct. App. 1932).

“ Failure to obey a police order to ‘ move on’ can be 
justified only where the circumstances show conclu­
sively that the order was purely arbitrary and was 
not calculated in any way to promote the public order. 
As was said in the Galpern case, the courts cannot 
weigh opposing considerations as to the wisdom of a 
police officer’s directions when he is called upon to de­
cide whether the time has come in which some direc­
tions are called for.”

Certainly in the handling of unforeseeable events officers 
should be given reasonably broad discretionary powers. 
This is especially true in the realm of traffic. Such ordi­
nances afford sufficiently definite standards under the cir­
cumstances and are neither vague nor overbroad.

Another question raised by petitioner is whether he was 
in violation of Section 1142 at the time of his arrest, be­
cause at that time the crowd was either moving or had 
moved. Thus, contends petitioner the reason for his ar­
rest was either gone or leaving. This however is no jus­
tification. If petitioner, the leader of the group, had this 
right then every other person in this crowd had the same 
right and if every other person had this absolute right 
then no right could rest in the City to regulate traffic on 
its sidewalks. It is only logical to assume that if peti­
tioner had been permitted to defy the officer1 and remain, 
his companions would have construed this as an open in­
vitation to rejoin him. Certainly if he had the right to 
defy the order then each of the others in the crowd had an

5 The testimony shows that petitioner was not seeking informa­
tion but was making statements in defiance of the officer (R. 18, 
20. 41. 52).



— 24

equal right. Obviously such a situation would be intoler­
able and gives justification to the rule that:

“  . . . police officers of a municipality should have rea­
sonable authority and discretion. Indeed, in exigen­
cies, it is vital to the welfare of the community.” 2 
Benson v. City of Norfolk, 163 Va. 1037, 177 S. E. 222.

II-B.

THE LAST PARAGRAPH OF 1142 IS NOT VAGUE 
OR OVERBROAD.

Petitioner in this section of his argument seeks reversal 
of the conviction by attempting to attack the constitution­
ality of 1142 as construed by the Alabama Court of Ap­
peals to constitute but one offense to require proof of both 
obstructing free passage and also failure to move upon re­
quest of a police officer.

As heretofore noted in this brief, the last paragraph of 
Section 1142 has been construed to contain a single of­
fense, proof of which requires evidence that the accused, 
blocked free passage of a public sidewalk and evidence of 
his refusal to move on after a police officer’s request. City 
v. Shuttlesworth, 42 Ala. App. 296, 161 So. 2d 796; Middle- 
brooks v. City of Birmingham, . . .  Ala. App. . . . ,  170 So. 
2d 424; Phifer v. City of Birmingham, 42 Ala. App. 282, 
160 So. 2d 898. Respondent now directs its argument to 
sustaining the validity of Section 1142 as construed by the 
Appellate Courts of Alabama.

Petitioner’s first attack on Section 1142 is that the con­
struction of this ordinance post-dates petitioner’s convic­

2 The inevitable consequences of the implications of petitioner’s 
argument in Shuttlesworth is that he has a constitutional right to 
defy a police officer in performance of his duty, a doctrine, we 
submit, which tends to encourage and may well lead to rioting, de­
struction of property, in the hundreds of millions, violence, and 
death of scores of innocent people.



tion in Circuit Court. In this regard he relies upon Bouie 
v. City of Columbia, 84 S. Ct. 1697, 378 IT. S. 347. The 
Bouie case, however, is not applicable in this ease. The 
rule espoused in Bouie is simply that a statute written in 
such narrow language as to give no fair notice to defend­
ant that his conduct is proscribed cannot be subsequently 
enlarged by judicial construction to cover his conduct. 
Actually the specific rule of Bouie is just a different ap­
plication of the following rule taken from United States v, 
Harris, 347 U. S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 
989, and adopted by Bouie:

“ The constitutional requirement of definiteness is 
violated by a criminal statute that fails to give a per­
son of ordinary intelligence fair notice that his con­
templated conduct is forbidden by the statute. The 
underlying principle is that no man shall be held 
criminally responsible for conduct which he could not 
reasonably understand to be proscribed.”

Section 1142 gives fair notice to any person of ordinary 
intelligence that obstructing free passage on a sidewalk 
and refusing to obey an officer’s request to move on is 
illegal. The construction placed on this ordinance by the 
Alabama Court is the only logical construction that could 
be placed upon it.

The Court of Appeals in construing this ordinance 
utilized rules of statutory construction designed solely to 
reach the most logical reasonable construction. These 
rules were formulated to give a certain amount of guid­
ance to courts in their efforts to place logical and proper 
construction on statutory enactments. They were designed 
to insure that parties affected by statutes would have the 
benefit of consistently logical construction. As stated in 
Blair v. Greene, 246 Ala. 28, 18 S. 2d 688:



“ . . . (I)n the construction of a statute, the legis­
lative intent is to be determined from a consideration 
of the whole act with reference to the subject matter 
to which it applies, and the particular topic under 
which the language in question is found. The intent 
so deduced from the whole will prevail over that of 
a particular part considered separately. This is in 
effect the statement as found in 59 C. J., p. 993, and 
recognized as the correct principle by numerous deci­
sions of this court.”  The Alabama Supreme Court 
in Peabody v. State, 246 Ala. 32, 18 So. 2d 693, also 
applies this rule.

Certainly the rule above does no more than require those 
persons coming within the purview of statutory enact­
ments to use common sense in reading them. Unless one 
completely blinds himself to the total effect of this enact­
ment, no other conclusion can be reached other than the 
one reached by the Appellate Courts of Alabama.

The title of this ordinance is an aid in its construction. 
Wages v. State, 25 Ala. App. 84, 141 So. 709, Cert, denied 
225 Ala. 10, 141 S, 713. The title of Section 1142 as 
amended reads:

‘ ‘Streets and sidewalks to be kept open for free 
passage.”

Certainly anyone reading the title of this ordinance 
would know that its subject was obstructing sidewalks. 
Anyone reading the entire ordinance would know that 
both sentences, the first and second relate specifically to 
some form of blocking traffic on the sidewalks and streets 
and any order to move would be authorized only when 
the first condition existed. It is only when the last sen­
tence in this section is lifted and taken completely out 
of context that the possibility of a different construction



appears.1 Appellant in this case, if he read the ordinance, 
could not come to any conclusion other than the one 
reached in the Middlebrooks, Phifer and Shuttlesworth 
cases. He was given fair notice of its proscription.

In reply to the several references by petitioner in his 
brief to the application of the prima facie rule and the 
conclusion reached that viewing Ordinance 1142 as pro­
scribing but one unlawful act of obstructing and failing 
to move after obstructing passage on the sidewalk, the 
Court would during trial presume obstructing from the 
mere giving of the request to move, we feel such conclu­
sion is erroneous. This erroneous conclusion is stated on 
pages 22 and 23 of petitioner’s brief.

The Shelton case there mentioned dealt not with 1142, 
but the vehicular traffic section 1231. The Middlebrooks 
case dealt with an obstruction of the free passage on a 
sidewalk, not in connection with a demonstration, but 
after it was concluded. It is true, mention was made of 
the Shelton case, but the Court of Appeals was unanimous 
in its opinion that the evidence proved all of the elements 
of the offense under 1142 without resorting to any question 
of burden of proof.

It is also important to remember that in this, the 
Shuttlesworth case, the Court of Appeals found from the 
evidence the City had proved both of the elements re­
quired to constitute the offense. Shuttlesworth could not 
complain of such a rule, if such a rule exists, because 
it obviously was not applied to his case in the decision 
of that court in opinion written by Judge Cates.

1 The fact that the last sentence in Section 1142 as amended was 
not a separate paragraph also is evidence that the request to move 
mentioned therein necessarily relates to a failure of one who is 
blocking or obstructing free passage to move after request to do so 
by a police officer.



Petitioner also contends that Section 1142 is like the 
ordinance declared invalid in Ex Parte Bell, 19 Cal. 2d 
488, 122 P. 2d 22. It is true that the two ordinances have 
some similarities, but the holding in Shuttlesworth and 
Bell are easily distinguished. Ex Parte Bell dealt with 
an ordinance that regulated picketing, which is a form of 
free speech protected by the Constitution. Thornhill v. 
State of Alabama, 310 U. S. 106, 60 S. Ct. 737. The Ala­
bama Court of Appeals holds:

“ Section 1142, as amended, of the General City 
Code of Birmingham is not aimed at free speech. It 
directs the manner in which sidewalks and streets 
may not be used.”

Absent the question of infringement of First Amend­
ment freedom of speech, assembly or press,1 the only 
requirement of specificity is that required to meet the 
due process requirements of the Fourteenth Amendment 
which is stated in Bouie, which quotes from the earlier 
case of United States v. Harris, 347 U. S. 612, 617, 74 
S. Ct. 808, 812, 98 L. Ed. 989, which we have quoted ante 
page 25. This rule may be summarized as simply requir­
ing that a defendant shall have reasonable notice of any 
act proscribed and for which a penalty might be inflicted 
upon him.

The ordinance here in question proscribing obstruction 
of free passage on a sidewalk and requiring the violator 
to move upon request of a police officer is as definite as 
the nature of such ordinance allows. Any person of rea­
sonable intelligence could understand its prohibitions.

Petitioner speculates that specific situations could arise 
in which a person could be arrested for window shopping 
or some other similar conduct and, if so, the police officer

1 See Fort v. Civil Service Comm, of Alameda County, 38 Cal. 
Rptr. 625, 392 P. 2d 385.



29 —

would be applying the ordinance in an unconstitutional 
manner. No one could deny that this or any ordinance 
might be used improperly. But this fact could not con­
demn an ordinance designed to accomplish a legitimate 
control of the use of the streets and sidewalks to the 
end that they might perform the main function for which 
they were created.

The language of another California Appellate Court, 
Ex Parte Bodkin, 194 Pac. 2d 588, 591, 86 Cal. App. 2d 
208, is particularly appropriate:

“ (6) (7) To say that the test of any legislation is 
what may be done thereunder without any limitation 
whatever is an absurdity, for every conceivable class 
of legislation has inherent in it the possibility of 
unconstitutional acts of enforcement. The two cases 
above cited referred to what would be the reasonable 
permanent effect of the legislation. The rule, as 
expressed by the Supreme Court, is that the state 
may incidentally, by reasonable regulations for the 
benefit of the general public, regulate but not pro­
hibit the individual’s exercise of his civil rights.

(8) Since the ordinance here in question is solely 
a regulation of the use of the public streets, preserv­
ing them for the benefit of the public against ob­
structions and not a restriction on what may be 
uttered or published, the cases cited for the propo­
sition that the state may not suppress civil liberties 
except in conformity with the ‘ clear and present, 
danger’ rule are not in point.”

In this regard, we also desire to call attention to an­
other well established principle that only one against 
whom an ordinance or statute has been unconstitutionally 
applied, unless its language is such that it cannot other­
wise be applied, may take advantage of its unconstitu- 
tionality because of such improper application. Cox v.



30

Louisiana, 85 S. Ct. 453, 463; United States v. Raines,
362 U. S. 17, 80 S. Ct. 519, 522.

“ . . . one to whom application of a statute is con­
stitutional will not be heard to attack the statute 
on the ground that impliedly it might also be taken 
as applying to other persons or other situations in 
which its application might be unconstitutional.”  
United States v. Raines, 362 U. S. 17, 80 S. Ct. 519. 
522.

III.

Point III of Petitioner’s Argument Is Without Merit.

In his argument number III petitioner argues that the 
first sentence of the last paragraph of Section 1142 is too 
vague and overbroad to meet First-Fourteenth Amend­
ment demands. He has no argument directed to this theory 
except the statement adopting the argument from the pre­
ceding “ paragraph”  of his brief.

We feel respondent has fully answered these contentions 
in Sections I and II of this brief. We therefore, adopt 
these two sections in reply to this point or section of peti­
tioner’s brief.

We have heretofore cited and quoted from the recent 
decision of this Honorable Court in Cox v. State of Lou­
isiana, 379 U. S. 536, 85 S. Ct. 453 (1965). We again direct 
attention to this case because we feel it has particular 
application here for the reason that there is great simi­
larity in the statute there involved and the part of the 
ordinance here under attack. Both by their terms pro­
scribe loitering or standing so as to block or obstruct free 
passage on the sidewalk. Neither the statute in Cox, nor 
the first sentence of the last paragraph of 1142 which we 
feel petitioner erroneously seeks to lift from its context and 
attacks here, provides for warning by a police officer prior 
to arrest.



31 —

While the statute in Cox was declared unconstitutional 
it appeared to be so declared only because it had been con­
strued by the Supreme Court of Louisiana as to apply to 
public assemblies, conflicting with first amendment free­
doms. Mr. Justice Goldberg discussed at length the dis­
tinction between ordinances or statutes confined in lan­
guage and application to merely regulating the flow of 
traffic and those by force of language used or construction 
by the state courts impinge upon first amendment free­
dom.1

IV.

Point IV of Petitioner’s Argument Is Without Merit.

Petitioner in this section of his argument contends for 
the reversal of the Alabama Court of Appeals decision 
because of alleged lack of evidence in the record to sup­
port a conviction under Count Two of the complaint. This
argument is without merits for two reasons.

A.

THE EVIDENCE AND INFERENCES PROPERLY TO 
BE DRAWN THEREFROM SUPPORT A CONVIC­

TION UNDER BOTH COUNTS ONE AND TWO.

Petitioner does not argue the invalidity of Ordinance 
1231 of the City of Birmingham but in view of the narrow- 
construction placed upon it by the Alabama Court of 
Appeals does not question its validity but chooses to take 
that court to task for holding the evidence sufficient to 
support this Count Two in Shuttlesworth while holding to 
to the contrary in Phifer v. City of Birmingham, 42 Ala. 
App. 282, 160 So. 2d 898.

1 85 Sup, Ct. 453 and especially at pages 464-466,



As we understand the ruling of the Alabama Court of 
Appeals, that court considered that defendant Phifer had 
not been arrested on account of any incident related to 
a traffic violation or because he obstructed free passage 
on the sidewalk so as to force other pedestrians into the 
street reserved for vehicular traffic but because he came 
back to talk with Shuttlesworth after the latter’s arrest 
and refused to leave after being warned three times to do 
so. In dealing with absence of evidence to convict Phifer 
under either Count One or Count Two, the Alabama Court 
of Appeals reached the following conclusions:

“ (6) Although the arresting officer testified that 
while he was pursuing Shuttlesworth into the store 
the defendant Phifer disappeared and he could not 
find him to arrest him at that time, we think it is 
clear from all the evidence that the officer himself 
did not consider that defendant had failed to comply 
with his order to clear the sidewalk, since he did not 
arrest him when he first came up to talk to Shuttles­
worth, but kept urging him to ‘ move on’. We are of 
the opinion the evidence fails to prove the defendant 
guilty under count one of the complaint.

(7) The charge in the second count of the complaint 
is for a violation of Section 1231, of the General City 
Code of Birmingham. This section appears in the 
chapter regulating vehicular traffic, and provides for 
the enforcement of the orders of the officers of the 
police department in directing such traffic. There is 
no suggestion in the evidence that the defendant 
violated any traffic regulation of the city by his re­
fusal to move away from Shuttlesworth when ordered 
to do so.



— 33

The evidence is insufficient to sustain the. verdict 
under either count of the complaint.” 1

The evidence in Petitioner Shuttlesworth’s case is 
exactly the reverse. It is clear he was arrested for ob­
structing free passage on the sidewalk resulting in pedes­

1 The opinion in Phifer v. City of Birmingham, 42 Ala. App. 
282, 160 So. 2d 898, 900, 901, clearly quotes the evidence relied 
upon by it to support these conclusions:

“ Shuttlesworth was placed in custody and taken to the west 
curb to await transportation to the city jail, and while they 
were standing there the defendant came up and started con­
versing with Shuttlesworth. The witness told defendant Shut­
tlesworth was under arrest and he could not be allowed to talk 
with him, but Phifer continued to talk. The officer said: ‘ I
informed him if he did not move away and discontinue his 
conversation with the defendant (Shuttlesworth) he too would 
be placed under arrest and taken to the city jail.’ The witness 
was asked on cross-examination :

‘Q. Now you arrested him at that time?’
‘A. After I had asked him to move some three times.’
‘Q. To move away from the Defendant Shuttlesworth?’
‘A. Yes, sir.’

‘Q. And only after he insisted on talking to Reverend Shut­
tlesworth did you arrest him?’

‘A. That’s right.’
The witness stated further that six or seven police officers 

were present when Shuttlesworth and Phifer were placed in 
the police car.

One of these officers testified the arresting officer told 
Phifer to move on, that he would not be allowed to talk to 
Shuttlesworth. Phifer said 'I will go with him,’ and Officer 
Byars stated: ‘You are under arrest too,’ The witness was 
asked: Q. ‘What did he tell him he was under arrest for? ’ 
His answer was: ‘Refusing to obey the lawful command of an 
officer.’

"Another officer testified; ‘He (Phifer) came up and said 
he wanted to talk to Shuttlesworth, and Officer Byars told him 
he couldn’t, that he was under arrest, and he said, “ Well, if 
you do, 1 will have to arrest you too because 1 have told you 
to leave.” And he said, “ Well, 1 will have to be arrested.”  And 
he placed him under arrest for failing to obey an officer.’

Two other officers testified it was after Officer Byars had 
told Phifer twice to move on, that he couldn't talk to Shuttles­
worth, that the defendant was arrested.”



trians having to get out, into the street reserved for 
vehicular traffic, all in a group including Phifer and some 
ten others. Phifer and the others obeyed the request of 
the officer to cease obstructing free passage on the side­
walk, hence none was arrested, except Phifer and his con­
viction was reversed by the Alabama Court of Appeals.

The factual finding in Shuttlesworth v. City of Birming­
ham, 42 Ala. App. 296, 161 So. 2d 796, 797, which is 
amply supported by the evidence and inferences properly 
to be drawn therefrom is stated:

“ The evidence, as introduced by the City, tended 
to show that the defendant was a member of a 
crowd of about ten or twelve people standing on the 
corner of 19th Street and 2nd Avenue, North, in the 
City of Birmingham, and that this crowd was block­
ing the sidewalk to such an extent that some of the 
other pedestrians were forced to walk into the street 
to get around them. The; crowd was accosted by one 
Officer Byars and asked to clear the; sidewalk so 
as not to obstruct pedestrian traffic. The evidence 
further showed that the crowd remained and when 
requested to disperse for the third time by Officer 
Byars, defendant Shuttlesworth said, ‘ You mean to 
tell me we can’t stand here in front of this store!’ 
at which time, Officer Byars informed the defendant 
that he was under arrest. Officer Byars testified that 
at the time of the arrest everyone had moved or was 
moving away except Shuttlesworth. After being told 
that he was under arrest, Shuttlesworth moved away 
saying, ‘ Well, I will go into the store.’ Officer Byars 
then followed Shuttlesworth into Newberry’s Depart­
ment Store and took him into custody.”

We respectfully urge that the Alabama Court of Appeals 
was correct in holding both counts one and two are suffi­
ciently supported by the evidence.



Review of the ruling of the Circuit Court denying the 
motion of Shuttlesworth to exclude the evidence was 
properly sustained because there was evidence before 
the Court sufficient to make a prima facie case under 
Counts One and Two.2 *

On certiorari, the ordinary practice of this Honorable 
Court is not to review the weight or sufficiency of the evi­
dence. On Page 19 of his brief petitioner alludes to and 
concedes this practice.:i

Cases of the United States Supreme Court supporting 
this rule include: Whitney v. California, 274 U. S. 397, 47 
S. Ct. 641, 71 L. ed. 594; Milk Wagon Drivers Union v. 
Meadowmoor Dairies, 312 IT. S. 287, 61 S. Ct, 552, 85 L. ed. 
836; Portland R. L. & P. Co. v. Railroad Commission, 229 
U. S. 397, 33 S. Ct. 829, 57 L. ed. 1248.

Of course, we are aware that if there was an entire 
absence of any evidence showing the commission of any 
offense charged by the City the principle asserted in 
Thompson v. City of Louisville, 362 U. S. 199, 80 S. Ct. 624, 
4 L. ed. 2d 654, would apply.

We think the evidence recited summarized by the Court 
of Appeals of Alabama in the Shuttlesworth case4 which 
we have quoted ante page 34 is more than adequate to 
support a conviction of petitioner, Shuttlesworth, under

2 Tarver v. State, 85 So. 855, 17 Ala. App. 424; Drummond v. 
State, 67 So. 2d 280, 37 Ala. App. 308; Martin v. State, 81 So. 
851. 17 Ala. App. 73.

The statement is made by petitioner in connection with the 
testimony of Officer Byars, which he says under ordinary practices 
of this Court "must escape strict review here" (Brief, p. 19).

r 161 So. 2d 796, at page 797.



both Counts one and two of the complaint and is consistent 
with the record in this case.5

But if we were to concede arguendo that the evidence 
was not sufficient to convict under Count Two of the com­
plaint, it was undoubtedly sufficient to convict under Count 
One. In fact, we fail to find any serious contention of 
insufficiency of evidence to support the complaint other 
than the argument under Section IV of Petitioner’s brief 
which is confined to Count Two.

B.

THE CONVICTION OP PETITIONER SHOULD BE 
SUSTAINED EVEN IF THERE W AS COMPLETE 

ABSENCE OP EVIDENCE TO SUSTAIN A 
CONVICTION UNDER COUNT TWO.

The judgment entry appearing on pages 10 and 11 of 
the record shows that petitioner was found guilty as 
charged in the complaint, but was fined and sentenced for 
one offense only. That is, the sentence was the same 
whether rested upon Count one or Count two.6

5 The evidence is considered in “ Statement of the Case’’ , this 
brief, ante pages 2-8.

6 “ Sec. 4. General Penalty. Any person who shall fail or neg­
lect to perform any duty imposed by this code, or who shall fail 
or neglect to do or perform any act or series of acts required to be 
done or performed by this code, or who shall fail or neglect to per­
form any duty, act or series of acts, the neglect or failure o f per­
formance of which is declared unlawful or made punishable by this 
code, or who shall do or perform any act or series of acts which is 
prohibited, made unlawful, or made a misdemeanor by this code, 
or who shall violate any provision of this code, shall, upon convic­
tion therefor, be punished by a fine not exceeding one hundred dol­
lars or by imprisonment in the city jail, workhouse or house of 
correction or at hard labor upon the streets or public works for not 
exceeding six months, or by both such fine and imprisonment; and, 
in the event the fine and costs are not presently paid the defend­
ant shall be required to work out the fine and costs under the 
direction of the city authorities, allowing one dollar for each day's



— 37

Where a judgment of conviction is general, it will not 
be reversed because of the insufficiency of the evidence 
as to some of the counts, where it is sufficient as to one 
count and the sentence is within the statutory limit 
which may be imposed on such count. U. S. v. Parillo, 
299 F. 714; Clift v. U. S., 22 Fed. 2d 549; Barton v. U. S., 
25 Fed. 2d 967, cert, denied 49 S. Ct. 24, 278 U. S. 621, 
73 L. ed. 542.

This is analogous to the proposition that a general 
conviction on a complaint will not be reversed where 
one of several counts is good, if the sentence imposed 
did not exceed that which could be imposed under the 
good counts. Pierce v. U. S., 40 S. Ct. 205, 252 U. S. 
239, 64 L. ed. 542, affirmed 245 F. 878; Claassen v. United 
States, 142 U. S. 140, 146, 12 S, Ct. 169, 35 L. ed. 966. 
In fact the Circuit Court of Appeals of the Sixth Circuit 
in Clift v, U. S., 22 Fed. 2d 549, 550, cites Claassen in 
support of the principle asserted in the preceding para­
graph.

The rule referred to in the last two preceding para­
graphs is also accepted in other state jurisdictions7 and 
has been applied by the Alabama Appellate Courts uni­
formly and without exception. Andalusia Motor Company 
v. Mullins, 183 So. 456, 28 Ala. App. 201, cert, denied

service. No female shall be required to work on the streets of the 
city. The penalties provided in this section shall apply in all cases 
other than offenses for which a different penalty is specifically 
prescribed; provided, that the provisions of this section shall not 
apply to violations of official duty imposed by this code upon o f­
ficers or employees of the city as such, unless the provision impos­
ing the duty also expressly makes the violation thereof unlawful or 
punishable.”  General City Code of the City of Birmingham.

< Yeats v. Mooty, 175 So. 719, 128 F. Ca. 658 and Smith v. Mc- 
haughn. 184 P. 2d 177. 81 Cal. App. 2d 815, are both directly in 
point on the proposition that a general judgment must be sustained 
if the evidence sufficiently supports either of two or more counts 
of the complaint.



183 So. 460, 236 Ala. 474; White v. Jackson, 62 So. 2d 
477, 36 Ala, App. 643; White Roofing Co. v. Wheeler, 
106 So. 2d 658, 39 Ala. App. 662, cert, denied 106 So. 2d 
665, 268 Ala, 695; Morgan v. Embry, 85 So. 580, 17 Ala, 
App. 276; Jones v. Belue, 200 So. 886, 241 Ala. 22; Turnip- 
seed v. Burton, 4 Ala, App. 612, 58 So. 959; Long v. 
Leith, 16 Ala, App. 295, 77 So. 445.

CONCLUSION.

The Judgment of the Alabama Court of Appeals affirm­
ing petitioner’s conviction should be affirmed and or the 
petition for certiorari dismissed.

Respectfully submitted,

EARL McBEE,
WILLIAM C. WALKER,

600 City Hall,
Birmingham, Alabama.



98