The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1902-12-12
Police Commission Consider
Z
Petition TO Clear Streets
FRUIT STANDS MAY STAY
The Commission Decides That other
Distractions Are Illegal, But That
Fruit Stands May Be Pro-
teeted BY Law.

After listening for two and a half hours
to the discussion of lawyers on the legal
ity of the fruit stands and other obstrue-
tions on the streets and pavements, the
police commission passed a resolution
last night that they held all distractions
but the fruit stands Illegal but that they
wished further light on the matter Of
these stands. as they might be protected
by special act of the legislature.
The commission was considering the Pc
tition of the Retail Grocers' association
that all Instructions be removed from
the streets and sidewalks as they inter-
ferred with their use by horses and vehi-
cles, and in the case of pavements by
pedestrians. Commissioner McCary made
a motion that the commission ask advice
on the matter before taking action, and
his motion was seconded by Commission
er Johnston. Chairman Rudolph then
asked that the motion be amended so as
to read that the petition be granted as to
all distractions except the fruit stands,
as it had appeared in the arguments Of
the lawyers that these stands might be
protected by law. The amended motion
was then passed.
Many Lawyers Present.
The meeting was postponed from last
Tuesday night specially to hear the at
torneys on this question. The petitioners
and the Wholesale Grocers' association
was represented by Oscar Floyd, while
the fruit stand dealers were represented
by Attorneys Lane, Allen and john d.
Moore. Attorney Floyd opened the argyll
ments and advanced the opinion that the
fruit stands, as well as all other OBJ
structions, were contrary to the consti-
tuition of Alabama and to the common
law which is that the streets and public
thoroughfares are sacred to the public
and cannot be blocked. He said lha. the
petitioners were in favor Of giving the
proprietors of fruit stands and other OBJ
structions a reasonable length of time in
which to remove the distractions, and
that the petitioners did not wish in any
way to work a hardship on the fruit
dealers.
He quoted a number Of acts of the legls-
lature ard decisions in various courts in
Alabama and other states to sustain his
pcs ition. He said that the special act OF
the legislature of 1896 and 1897 gives the
city of Birmingham the right to rent
three feet of the pavcments or streets to
merchants, but that the new charter of
the city given in 1895 and 1899 does not
specify that the city has the right and
that 1t does repeal all previo\s ordinances
Ia
this was ground enough for a statement
that the fruit stands are Illegal
Streets for the People.
Mr.. Floyd claimed that no local or pri-
vate enactments had been made giving
the city the right to close portion of
the street. He stated that the city is
merely trustee for the people and that
the streets are for the people. therefore
the city or any other body does not have
the right to give the streets away with
out the consenr of the people. and that
there was a petition with nearly 1000
names of citizens of Birmingham pro-
testing against the fruit stands He also
cited the case Of Costello VS.. the state
which decided that he could not block the
pavements.
Mr.. Floyd summed up his arguments by
saying there were the following reasons
why the city does not have the power to
give its streets away:
/. The legislature has not the right to
give away the streets and public thor
oughfares.
g. The act of 1898 does not allow the city
to grant privileges of occupying the
streets and pavements.
8. A man can occupy the streets or
pavements for a reasonable length OF
time In order to move goods to or from
his store. but only reasonable time can
be consumed. It does not state that he
can occupy 1t permanently.
A. This is merely legal question and
the supreme courts all over the states
have decided against the merchants &C.
cupying the pavementss
5. There is no organization which has
the right. moral or legal to give away
the streets.
Special Act.
John d. Moore then spoke claiming
that the fruit stands were allowed to oc-
cupy the pavements by a special act of
stitution does not repeal the previous
act. He held that the fruit stands are
not unconstitutional.
B. M Allen spoke setting forth that
there would be no police commission. no
Police court, no Criminal court or other
organizations If the new constitution of
Alabama does away with all local bills
passed in the past. 1t was explained to
him that this was not the position of At
torney Floyd. who held that all local
measures in opposition to the new char
ter of Birmingham were annulled when
the new charter was given. He said that
it was in the power of the board of rev.
enue to close a thoroughfare, and that
certainly the legislature could do so. He
stated that there was nothing in the new
charter of the city which conhicted in
the matter of fruit stands with the pre-
vious enactments of the legislature, and
that he did not believe that the fruit
stands We're unconstitutional. He ex-
planned that the common law was in ef-
feet in Alabama, but only in case where
the legislature had not passed other
laws annulling 1t. He said that the leg
iela t,lra had nassed laws annulline the