Chavez v. Municipal Court

A criminal complaint was filed in the Justice Court of the Porterville Judicial District charging appellant with the illegal use of a speaker mounted on a vehicle in

We do not agree with respondents’ contention that prohibition is not available to appellant in this ease. In Hunter v. Justice Court (1950) 36 Cal.2d 315 [ 223 P.2d 465 ], the petitioner was charged with a misdemeanor violation in a justice court. Although his petition was denied (for other reasons) the Supreme Court unequivocally stated that prohibition was proper to test the constitutionality of the statute without indicating or suggesting that there were other special facts or circumstances to warrant the relief requested. Moreover, in Moore v. Municipal Court (1959) 170 Cal.App.2d 548 [ 339 P.2d 196 ], the appellate court held that prohibition was available under circumstances strongly paralleling the instant case. There Justice Tobriner, speaking for the court, distinguished Dickenson as follows: “While Dickenson v. Municipal Court (1958) 162 Cal.App.2d 85 [ 328 P.2d 32 ] seemingly reaches an opposite conclusion in that the appellate court upholds the superior court in denying the writ on the ground of adequacy of remedy, the court proceeds to point out: ‘It may also be reasonably inferred that where, as here, there are several complaints and charges, questions of fact may be involved and the defense of unconstitutionality of one section of the ordinance may be available as to some of the charges and not as to the others. These matters can be considered and decided during a trial or on an appeal. ’ (Italics added; p. 89.) The instant case raises no questions of fact.” (170 Cal.App.2d at p. 553.)'

We shall now direct our attention to the constitutionality of the Tulare County ordinance. This ordinance, which is a part of the Tulare County Ordinance Code, provides in pertinent part:

“Section 3331. Permit Required: It shall be unlawful for any person, other than law enforcement and governmental agencies, to use a speaker mounted upon a vehicle for the purpose of giving instructions, directions, talks, addresses or lectures to any persons or assemblage upon or over any highway without first obtaining a permit therefor as hereinafter provided.

It

"Section 3333. Application fob Permit : Any person desiring such a permit shall make a written, verified application therefor upon a form which shall be furnished by the Clerk of the Board of Supervisors. Said application shall contain the following information:

(a) The name and address of the person applying for the permit, and if such person is acting as an agent for a club, association, partnership or corporation, the name and the business address of such club, association, partnership or corporation.

(b) The time and place the speaker is to be used.

(c) To whom the address, talk, lecture, direction or instruction is to be given.

(d) The purpose for which the address, talk, lecture, direction or instruction is to be given.

(e) The license number and description of the vehicle or vehicles to be so used.

(f) If said speaker is an electrical amplifier, the rated output of said amplifier in watts.

‘1 Section 3334: Filing Application : Said application shall be filed with the Clerk of the Board of Supervisors. The Board of Supervisors shall consider said application at its next regular meeting, and shall hear any evidence offered in connection with said application at that time.

"Section 3335: Consideration op Application By Board : The Board of Supervisors shall grant said permit at said time, unless there is presented to the Board, at the time said permit is under consideration, substantial and convincing evidence of a clear and present danger that the granting of said permit will result in the obstruction of the orderly movement of traffic or the peaceful passage or presence of persons to, over or upon the public highways and other public places, or will result in disorderly or unlawful conduct, unlawful injury of persons, destruction of life or property, or an invasion of the right of privacy, or will result in tending to incite crime or in threatening the overthrow of the lawfully established government by force, in which case said permit may be denied. ’ ’

Admittedly, the state (and its subdivisions) has the sovereign right to protect its citizens and possesses wide discretion when it exercises its police power in this respect (City of El Paso v. Simmons, 379 U.S. 497 [ 13 L.Ed.2d 446 , 85 S.Ct. 577 ]). In fact, the very existence of police power imposes

In addition the public does not have unlimited or unrestricted rights in the use of the public highways. It acquires only the right of way and the incidents necessary to enjoy such right, subject to reasonable regulation. Thus, in this state, by legislative declaration, the county board of supervisors has control and custody of the county’s highways and may enact and enforce ordinances and regulations for the maintenance, protection, supervision, management, control or use of such highways (Las Posas Water Co. v. County of Ventura, 97 Cal.App. 296 [ 275 P. 817 ] ; Sts. & Hy. Code, § 942). Moreover, the board’s ordinances and regulations are not necessarily inconsistent with the civil liberties guaranteed by the United States Constitution even though they impinge on these liberties. To the contrary, as the United States Supreme Court said in Cox v. New Hampshire, 312 U.S. 569 , 574 [ 85 L.Ed. 1049 , 1054, 61 S.Ct. 762 , 133 A.L.R. 1396 ] : “The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which thejr ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.” And in Kovacs v. Cooper, 336 U.S. 77 , 87 [ 93 L.Ed. 513 , 522, 69 S.Ct. 448 , 10 A.L.R.2d 608 ], the high court

It is therefore manifest that the board of supervisors of a county may by ordinance regulate the use of loud speakers or other sound emitting devices on county highways as long as the ordinance is a reasonable exercise of the police power and does not establish an arbitrary prior restraint on the exercise of the rights guaranteed by the United States Constitution. Conversely, however, such ordinances are invalid if they unreasonably interfere with civil liberties or if they do not contain sufficiently precise standards which would insure uniform and equal application.

In Saia v. New York, 334 U.S. 558 [ 92 L.Ed. 1574 , 68 S.Ct. 1148 ] the United States Supreme Court struck down a municipal ordinance which prohibited the use of a loud speaker without a permit issued by the chief of police. The court said: “To use a loud-speaker or amplifier one has to get a permit from the Chief of Police. There are no standards prescribed for the exercise of his discretion. The statute is not narrowly drawn to regulate the hours or places of use of loud-speakers, or the volume of sound (the decibels) to which they must be adjusted. The ordinance therefore has all the vices of the ones which we struck down in Cantwell v. Connecticut, 310 U.S. 296 [ 84 L.Ed. 1213 , 60 S.Ct. 900 , 128 A.L.R. 1352 ]; Lovell v. Griffin, 303 U.S. 444 [ 82 L.Ed. 949 , 58 S.Ct. 666 ]; and Hague v. Committee for Industrial Organization, 307 U.S. 496 [ 83 L.Ed. 1423 , 59 S.Ct. 954 ].” (334 U.S. at p. 560 [92 L.Ed. at p. 1577].) The court also stated:

“Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loudspeakers because their use can be abused is like barring radio receivers because they too make a noise. The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights. The same is true here.

“Any abuses which loud-speakers create can be controlled by narrowly drawn statutes.” (Saia v. New York, 334 U.S. 558 , 562 [ 92 L.Ed. 1574 ,1578, 68 S.Ct. 1148 ].)

In Kunz v. New York, 340 U.S. 290 [ 95 L.Ed. 267 , 71 S.Ct. 312 ] the Supreme Court declared unconstitutional an ordinance which made it unlawful to hold public worship meetings on the streets without obtaining a permit because the

In Hague v. Committee for Industrial Organization (1939) 307 U.S. 496 [ 83 L.Ed. 1423 , 59 S.Ct. 954 ], the Supreme Court found invalid a Jersey City ordinance which read in part as follows: ‘ ‘ The Director of Public Safety is hereby authorized to refuse to issue said permit when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage.” (307 U.S. at p. 502, Note 1 [ 83 L.Ed. 1430 ].) The court stated:

“It [ordinance] does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent ‘riots, disturbances or disorderly assemblage. ’ It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the .prohibition of all speaking will undoubtedly ‘prevent’ such eventualities.” [307 U.S. at p. 516 [83 L.Ed. at p. 1437].)

We have carefully reviewed the Tulare County ordinance with these salutary principles in mind and conclude that the ordinance is unconstitutional.

First, under the ordinance no one can use a loud speaker on the county highways, which may be the only feasible way to communicate with certain persons, without first applying to the county board of supervisors. And yet the board, without following objective standards of any kind, may not only deny the permit if it predetermines that there is a clear and present danger that its issuance will probably result in such dire and disruptive consequences as the destruction of life or property or a threat to overthrow the government by force, but also if it predetermines that the issuance of the permit will probably result in such lesser evils as (1) the obstruction of the orderly movement of traffic or (2) the peaceful passage or presence of persons to, over or upon the public highways and other public places or (3) disorderly conduct or (4) an invasion of the right of privacy.

Thus, although more subtly worded, the ordinance contains the same vice as the ordinance which was struck down in Hague v. Committee for Industrial Organization, supra, 307

Second, the ordinance makes it possible for the board to purposely engage in delaying tactics which could be extremely detrimental, if not fatal, to the presentation of vital issues in labor disputes, political campaigns and similar national, state or local matters which are by nature transitory. Although the ordinance requires the board to consider the application for a permit at its next regular meeting, there is no time limit for the board’s decision. Consequently, from the lack of any such time limit and the vague standards of the ordinance, it is conceivable that the taking of evidence and the board’s decision after it has heard the evidence could extend over a prolonged period of time.

In arriving at our decision that the Tulare County ordinance is unconstitutional, we are mindful of the case of Haggerty v. County of Kings (1953) 117 Cal.App.2d 470 [ 256 P.2d 393 ], where the court reached the opposite conclusion when it interpreted an almost identically worded ordinance. We are also cognizant of the salient policy which ordinarily would induce us to follow the decision of a sister appellate court on an issue which has not been decided by our own Supreme Court! However, the paramount public interest which- is Inextricably connected with the subject matter of the ordinance .has impelled us to reconsider- the question in light of conditions which have prevailed in this nation during more recent years.

Conley, P. J., and Stone, J., concurred.

A petition for a rehearing was denied December 13, 1967, and respondents’ petition for a hearing by the Supreme Court was denied January 17, 1968. McComb, J., and Burke, J., were of the opinion that the petition should be granted.