Opinion
Page __
__ Cal.App.2d __ 267 P.2d 370 HAGGERTY v. FRESNO COUNTY et al. Civ. 4645. California Court of Appeals, Fourth District March 2, 1954Rehearing Denied March 26, 1954.
Hearing Granted April 28, 1954.
[267 P.2d 371] Robert M. Wash, County Counsel of Fresno County, John E. Loomis, Asst. County Counsel, and Dearing, Jertberg & Avery, Fresno, for appellants.
Todd & Todd, Clarence E. Todd and Henry C. Todd, San Francisco, for respondent.
MUSSELL, Justice.
In this action for injunctive relief and damages appellants appeal from a judgment permanently enjoining them from enforcing ordinance No. 415 of the county of Fresno and from a minute order denying their motion for an order setting aside and vacating said judgment.
The ordinance involved was passed by the board of supervisors of Fresno county on October 10, 1950, and is entitled 'An ordinance prohibiting the making, emitting, or transmitting of any loud and raucous noise upon or from any public highway or public thoroughfare or from any aircraft.' The ordinance provides in Section 3 thereof that 'It shall be unlawful for any person to wilfully make, emit, or transmit or cause to be made, emitted, or transmitted any loud and raucous noise upon or from any public highway or public thoroughfare or from any aircraft of any kind whatsoever.'
'Loud and raucous noise' as used in the ordinance, and as defined therein, means:
'(1) Any noise made by the motor of any automobile, truck, tractor, motorcycle, or aircraft of any kind not reasonably required in the operation thereof under the circumstances and shall include but not be limited to backfiring, motor racing, and the buzzing by airplanes.
'(2) The sound of the discharge of any gun or other explosive except by or with the permission of the governing body having control of the highway or thoroughfare.
'(3) The human voice or any record or recording thereof when amplified by any device whether electrical or mechanical or otherwise to such an extent as to cause it to carry on to private property or to be heard by others using the public highways or public thoroughfares.
'(4) Any sound not included in the foregoing which is of such volume, intensity, or carrying power as to interfere with or tend to interfere with the peace and quiet of persons upon private property or other users of the public highways and thoroughfares.'
Violation of the ordinance is made a misdemeanor, punishable by fine or imprisonment, or both.
The trial court found that plaintiff C. J. Haggerty is the secretary of the California State Federation of Labor and a member of one of the labor unions affiliated with said federation; that he was authorized to represent the members of said federation with respect to the matters alleged in the complaint and brought the instant action in a representative capacity for and on behalf of himself and all other organizations and persons similarly situated; that the following persons, to wit, William Swearingen, Doc Reynolds, Jose Torres, Cleo Wheeler, Thos. D. Webb, Arthur Cramp, Andres Hernandez, Juan Mendoza, Clarence O. Goodwin, Vernon Pruett, Floyd Chadwich and J. Gunn (some of these men were representatives of the union involved and others were union members and pickets), were arrested under the provisions of said ordinance No. 415 for operating a loud speaker upon and from the public highway, thereby, by such device, amplifying the human voice to such an extent as to cause it to carry onto private property; that said ordinance No.
[267 P.2d 372] 415 will be enforced against those using loud speakers upon the public highways, including the prosecution and hearing of the cases now pending before the defendant justices of the peace; that the present law enforcement officials of the county of Fresno, unless enjoined, will enforce the provisions of said ordinance No. 415 as written; that the enforcement of said ordinance is an interference with plaintiff's constitutional rights; that if the provisions of said ordinance relating to the operation of a loud speaker upon the public highways are enforced, the unions involved and their members will be prevented from effectively operating loud speakers upon the public highways; that persons, including the class thereof represented by plaintiff, will be subject to arrest and prosecution under said ordinance if they employ and use loud speakers on the public highways for any purpose or purposes whatever; and 'that as set forth above, large numbers of law suits will be commenced if said county, its officers and employees, attorneys and those persons acting in concert with same, are not enjoined and restrained from enforcing said ordinance No. 415; that there will also be necessary many suits to enjoin the prosecution of said members and employees of said union, if this court does not grant the injunction as prayed.'
The trial court concluded:
'That Ordinance No. 415 of the County of Fresno insofar as it purports to prohibit the use of loud speakers upon the public highways and thoroughfares of the county of Fresno is unconstitutional upon its face as an abridgment of the constitutional guarantee of the rights of free speech; that the provisions of said ordinance defining a loud and raucous noise as among other things the human voice or any record or recording thereof when amplified by any device whether electrical or mechanical or otherwise to such an extent as to cause it to carry on to private property or to be heard by others using the public highways or public thoroughfares is so inseparable from other provisions of said ordinance that the entire ordinance must be found to be unconstitutional.'
Judgment was rendered enjoining and restraining appellants 'from any manner enforcing or causing ordinance No. 415 of the County of Fresno or any part or provision thereto to be enforced.'
Defendants appeal from the judgment and contend (1) That ordinance No. 415 is constitutional on its face; and (2) That plaintiff is not entitled to an injunction to prevent the enforcement of a constitutional public statute by officers of the law; that even if the ordinance is unconstitutional on its face, an injunction cannot be granted to prevent its enforcement by officers of the law where there is no finding that by reason of its enforcement the persons represented by plaintiff are in danger of irreparable injury to private rights or of being deprived of a reasonable opportunity to question the constitutionality of the ordinance in the threatened criminal proceedings.
In Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574, the question of the validity under the fourteenth amendment of a penal ordinance of the city of Lockport, New York, which forbade the use of sound amplification devices except with permission of the chief of police was presented and passed upon. Saia was convicted of a violation of the ordinance and the Supreme Court set aside the conviction declaring that the ordinance was unconstitutional on its face as it established a previous restraint on the right of free speech in violation of the first amendment which is protected by the fourteenth amendment against state action. 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 [267 P.2d 373] which we struck down in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Lovell v. [City of] Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; and Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.'
The later case of Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 453, 93 L.Ed. 513, 10 A.L.R.2d 608, involved the validity of an ordinance which prohibited the use of a loud speaker or sound amplifier which emitted therefrom loud and raucous noises and was attached to and upon any vehicle operated or standing upon the streets or public places in the city of Trenton, New Jersey. Kovacs was convicted by a police judge of the city and on appeal to the Supreme Court, his conviction was affirmed. The court said:
'We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities. On the business streets of cities like Trenton, with its more than 125,000 people, such distractions would be dangerous to traffic at all hours useful for the dissemination of information, and in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would likewise be at the mercy of advocates of particular religious, social or political persuasions. We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets. * * *'
In Haggerty v. County of Kings, 117 Cal.App.2d 470, 256 P.2d 393, 396, this court held that the use of vehicles equipped with loud speakers emitting loud and raucous noises and objectionably amplified sound on public highways is subject to legislative control. The ordinance there under consideration provided that:
"Section 2. It shall be unlawful for any person, other than law enforcement and governmental agencies to employ a speaker mounted upon a vehicle for the purpose of giving instructions, directions, making talks, addresses or lectures to any persons or assemblage upon or over any highway, without first obtaining a permit therefor as hereinafter provided."
The ordinance further provided that a permit should be granted by the board of supervisors unless there was presented to the board 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 peaceable passage or presence of persons, to, over or upon the public highways and other public places, or disorder or unlawful conduct, or unlawful injury of persons, or destruction of life or property, or tending to incite crime, or an invasion of the rights of privacy, or threatening the overthrow of the lawfully established government by force, in which case said permit may be denied." It was there held that the ordinance was constitutional and did not abridge or deny the right of free speech or assembly.
In the instant case the board of supervisors of Fresno county in enacting the ordinance in question specifically defined the meaning of 'loud and raucous noise' as used in the ordinance and the definition there used is binding on this court. Rideaux v. Torgrimson, 12 Cal.2d 633, 636, 86 P.2d 826. By its provisions the ordinance denounces 'the use upon any public highway in the county' of 'the human voice or any record or recording thereof when amplified by any device whether electrical or mechanical or otherwise to such an extent as to cause it to carry on to private property or to be heard by others using the public highways or public thoroughfares.' It should be here noted that the emission or transmission of such sounds are made unlawful irrespective of whether such sounds are of such volume, intensity or carrying power as to interfere with or tend to interfere with the peace and quiet of the users of the county highways or owners of private property. Such a limitation upon the use of the human voice or any recording or [267 P.2d 374] amplification thereof is in our opinion an unconstitutional abridgment and denial of the right of free speech. Under the provisions of this ordinance the use of radios in private automobiles on county highways will be prohibited if the sounds therefrom carry to private property or could be heard by others using the highways and even the use of the human voice when amplified otherwise than by any mechanical device would constitute a violation of the ordinance when carried onto private property or heard by others using the highways.
Appellants contend that an injunction cannot be granted to prevent the enforcement of a constitutional public statute by officers of the law. Section 526 of the Code of Civil Procedure and the case of Fairchild v. Brock, 88 Cal.App.2d 425, 199 P.2d 9, are cited as authority for this contention. However, it was held in the Fairchild case, supra, that this section of the code does not apply to an unconstitutional statute or ordinance. As was said in Brock v. Superior Court, 12 Cal.2d 605, 609, 86 P.2d 805, 807:
'The petitioners place their principal reliance upon section 3423 of the Civil Code which provides that 'an injunction cannot be granted * * * to prevent the execution of a public statute, by officers of the law, for the public benefit'. This section has been construed as a limitation upon the power of a court to restrain public officers from enforcing a valid law (Reclamation District [No. 1500] v. Superior Court, 171 Cal. 672, 154 P. 845), but it has uniformly been held that one specially interested may enjoin the attempted execution of an unconstitutional statute. Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 407, 65 P.2d 884, 109 A.L.R. 895; Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14; Wheeler v. Herbert, 152 Cal. 224, 92 P. 353; Schofield v. City of Los Angeles, 120 Cal.App. 240, 7 P.2d 1076.'
The contention that an injunction cannot be granted because no finding was made that by reason of the enforcement of the ordinance the persons represented by the plaintiff were in danger of irreparable injury or of being deprived of a reasonable opportunity to question the constitutionality of the ordinance in criminal proceedings is without merit. As was said in Bueneman v. City of Santa Barbara, 8 Cal.2d 405, 408, 65 P.2d 884, 886, 109 A.L.R. 895:
'* * * while ordinarily equity will not enjoin a criminal prosecution, yet where persons have been arrested and further arrests and prosecutions are threatened under a void municipal ordinance, the enforcement of which seriously interferes with property rights, it will entertain a suit brought to test the validity of the enactment. Carey v. [City of] Atlanta, 143 Ga. 192, 84 S.E. 456, L.R.A.1915D, 684, Ann.Cas.1916E, 1151. The complaint clearly shows that the business of plaintiffs, which is a perfectly lawful one, is being interfered with by the steps which have already been taken to enforce the ordinance. Plaintiffs under the circumstances shown must either comply with the terms of the ordinance or defend each person who is arrested for a violation of it. In such a situation, a court of equity will entertain the suit.'
In Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 116, 180 P.2d 321, 171 A.L.R. 913, it was held that equity will protect personal as well as property rights. See also 175 A.L.R. 438, 442.
The trial court found that if the provisions of the ordinance No. 415 relating to the operation of a loud speaker upon the public highways are enforced, persons, including the class represented by plaintiff, would be subject to arrest and prosecution under said ordinance if they employ and use loud speakers on the public highways for any purpose or purposes whatever and that large numbers of lawsuits would be commenced if the defendants are not restrained from enforcing said ordinance; that several persons (representatives and members of plaintiff association) had been arrested under the provisions of said ordinance [267 P.2d 375] and that the enforcement thereof is an interference with plaintiff's constitutional rights. These and other findings are sufficient to show that plaintiff and members of the association which he represents are specially interested in the attempted execution of an unconstitutional statute and are, therefore, entitled to injunctive relief. French Art Cleaners v. State Board, etc., Cleaners, 91 Cal.App.2d 890, 900, 206 P.2d 25.
Judgment and order affirmed.
BARNARD, P. J., and GRIFFIN, J., concur.