West Coast Theatres, Inc. v. City of Pomona

The question involved in this controversy concerns the constitutionality of an ordinance of the city of Pomona which in substance, so far as the plaintiff is concerned, will prevent it from exhibiting motion pictures “during any portion of any Sunday,” but which ordinance will permit such an exhibition at such time by any religious or philanthropic society, provided that no admission fee be charged.

The history of the litigation commences with the adoption of an ordinance through an initiative election by the qualified voters of the city of Pomona, the text of which, so far as is here applicable, being as follows:

“Section 1. That it shall be unlawful for any person or persons, firm, corporation or association to keep open or permit to be kept open, within the corporate limits of the City of Pomona, any theater, moving picture theater, public dance hall, pool or billiard hall, skating rink or other place of public amusement, upon or during any portion of any Sunday. . . .

“Section 3. The provisions of Section 1 hereof shall not apply or be construed to apply to programs, concerts or entertainments given by religious, benevolent, fraternal, patriotic or charitable societies or other societies of like character and for admission to which said program, concerts or entertainments no admission fee is charged.”

Following the certification by the city clerk of the city of Pomona of the passage of the ordinance, the plaintiff brought suit .against the defendants wherein an injunction was sought restraining defendants from enforcing the ordinance. The defendants’ demurrer to the complaint having been overruled and no answer thereto having been interposed by them within the time allowed by law, judgment was entered against the defendants as prayed.

At the outset it is conceded by counsel representing the plaintiff that all legislative guaranties must yield to the proper and reasonable exercise of police power; that any ordinance enacted by a city for the health, welfare, or comfort of its citizens is valid, provided that any substantial reason exists for the passage of such ordinance (Curtis v. Los Angeles, 172 Cal. 230 [ 156 Pac. 462 ]; Ex parte Haskell, 112 Cal. 412 [ 32 L. R. A. 527 , 44 Pac. 725 ]; Ex parte Tuttle, 91 Cal. 589 [ 27 Pac. 933 ]; In re Miller, 162 Cal. 687 [ 124 Pac. 427 ]); that “Sunday laws” are universally held constitutional, and in this state “upon the ground that every man is entitled to at least one day out of seven within which to recuperate and rest” (Ex parte Newman, 9 Cal. 519 ; E x parte Andrews, 18 Cal. 680 ; Ex parte Bird, 19 Cal. 130 ; Ex parte Burke, 59 Cal. 6 [ 43 Am. Rep. 23 ]; Ex parte Koser, 60 Cal. 177 ; Ex parte Jentzsch, 112 Cal. 472 [ 32 L. R. A. 664 , 44 Pac. 803 ]), and that the city, through the agency of its legislative body, has the power to regulate "amusements and to establish censorship concerning same (26 Ruling Case Law, p. 698, and cases there cited). On the other hand, it is contended that the exercise of police power is always subject to judicial scrutiny to determine its reasonableness; in other words, that the mere passage of an " act by a legislative body ostensibly for the promotion of the health, comfort, or the welfare of the people, is not necessarily conclusive, nor beyond inquiry by the judicial branch of the government for the purpose of ascertaining whether or not, as a matter of law, the right has been properly exercised ; and so much appears to be conceded by the defendant.

While several different minor angles of the question involving the constitutionality of the ordinance in question are discussed in the briefs of respective counsel, the controlling feature of the controversy turns upon the right of the municipality to enact an ordinance which in effect discriminates as between the operation on Sunday of a moving picture establishment as a business, and the perhaps casual operation of a motion picture on the same day and without admission charge by a religious or a philanthropic society. The leading case in this state in which an attempted statutory discrimination as to Sunday closing failed of judicial affirmance as to its constitutionality is that of Ex parte Jentzsch, 112 Cal. 468 [ 32 L. R. A. 664 , 44 Pac. 803 ], in which it was held that a statute making it a misdemeanor to keep open or to conduct a barber-shop, etc., or to work as a barber on Sunday, or on legal holidays, was special legislation, based upon an arbitrary classification not proper in the exercise of police power; that it was an undue restraint on personal liberty, and consequently was unconstitutional and void. In another case entitled Ex parte Westerfield, 55 Cal. 550 [ 36 Am. Rep. 47 ], where bakeries and bakers, similarly situated, were the subject of the statute, the same conclusion was reached. But beginning with the case entitled

In the case of Dominion Hotel v. Arizona, 249 U. S. 265 [ 63 L. Ed. 597 , 39 Sup. Ct. Rep. 273 ], it appeared that the legislature of the state of Arizona had passed a law which forbade the employment of women in certain occupations, including that of labor in restaurants, for more than eight hours within a period of twelve hours, but expressly provided as an exception thereto that the law as to such employment should be inapplicable as to “railroad restaurants and eating houses.” In an opinion written by Mr. Justice Holmes it was held that the exception in the statute as to railroad restaurants was not such an arbitrary discrimination against hotels and other restaurants as to render the statute invalid as denying the equal protection of the laws. In the course of the opinion it is said: “The 14th Amendment is not a pedagogical requirement of the impracticable. The equal protection of the laws does not mean that all occupations that are called by the same name must be treated in the same way. The power of the state ‘may be determined by degrees of evil, or exercised in cases where detriment is especially experienced’ (citing cases). It may do what it can to prevent what is deemed an evil, and stop short of those cases in which the harm to the few concerned is thought less important than the harm to the public that would ensue if the rule laid down were made mathematically exact. The only question is whether we can say on our judicial knowledge that the legislature of Arizona could not have had any reasonable ground for believing that there were such public considerations for the distinction made by the present law.

In the case of Central Lumber Co. v. South Dakota, 226 U. S. 157 [ 57 L. Ed. 164 , 33 Sup. Ct. Rep. 66 , see, also, Rose’s U. S'. Notes], where the court ruled as to the constitutionality of a statute which forbade the sale of goods at different prices at two or more places, it is said: “It [the legislature] may direct its laws against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. ’ ’

And in Matter of Application of Martin, 157 Cal. 51 [ 26 L. R. A. (N. S.) 242 , 106 Pac. 235 ], where the act under consideration had to do with a limitation upon hours of labor in mines, the opinion contains the following: “The law is not rendered special by the mere fact that it does not cover every subject which the legislature might conceivably have included in it. It is enough that the subjects covered possess such intrinsic peculiarities as to justify the legislative determination that those subjects require special enactment.” And to the same point, see Matter of Application of Miller, 162 Cal. 687 [ 124 Pac. 427 ]; Miller v. Wilson, 236 U. S. 373 [L. R. A. 1915F, 829, 59 L. Ed. 628 , 35 Sup. Ct. Rep. 342 , see, also, Rose’s U. S. Notes].

The governing principle is covered by the statement that “it is only when a business is lawful and has no injurious tendency that the governing body cannot say who shall and who shall not exercise the right itself.” (Goytino v. McAleer, 4 Cal. App. 655 [ 88 Pac. 991 ], citing County of Los Angeles v. Hollywood Cemetery Assn., 124 Cal. 344 [ 71 Am. St. Rep. 75 , 57 Pac. 153 ].)

[2] That the ordinance in question is within the police power of the state, and that it constitutes a regulation of motion picture exhibitions and is not prohibitory, see the well-considered cases of Ames v. Gerbracht, 194 Iowa, 267 [ 189 N. W. 729 ], and Power v. Nordstrom, 150 Minn. 328 [ 184 N. W. 967 ].

The judgment is reversed.

Conrey, P. J., and Curtis, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 20, 1924.

All the Justices concurred.