Opinion
Hearing Granted Sept. 26, 1962.
Opinion vacated 29 Cal.Rptr. 1, 379 P.2d 481.
Jerome J. Bunker, City Atty., for defendants and appellants.
Lionel Richman, Lewis Garrett and Herbert M. Ansell, Los Angeles, for plaintiffs and respondents.
SHEPARD, Justice.
This is an appeal by defendant City from a judgment prohibiting defendant and its officers from enforcing an ordinance regulating the use of sound trucks within the defendant city.
FACTS
The facts are stipulated by the parties. In essence they are that August 27, 1958, appellant's City Council enacted Ordinance 395, which added to appellant's ordinances Chapter 44 (Articles 440 to 444, inclusive) entitled, 'Sound Truck Regulations.' Article 440 (Sections 4400 to 4404, inclusive) provides definitions covering Sound Trucks, Sound Amplifying Equipment, commercial and non-commercial purposes. Article 441 (Sections 4410 to 4413, inclusive) prohibits the use of a commercial sound truck without a permit obtained through filing, in triplicate, a registration statement identifying truck owner, operator, purpose, description of equipment, maximum sound producing power, wattage, volume in decibels of sound and distance sound thrown. One copy of the registration statement, signed by the Chief of Police, is returned to the applicant and this is apparently intended to serve as the permit. Section 4412 provides for refusal of the permit if traffic or pedestrian movements are such that, in the opinion of the Chief of Police, the use of the amplifying equipment would be detrimental to traffic safety, or if, in the opinion of the Chief of Police, the equipment is in disrepair and would endanger traffic, or if the application reveals that a violation of Article 443 is intended, or if the applicant has been convicted of a crime involving moral turpitude. A fee is provided for commercial but none for non-commercial vehicles. Article 442 (Section 4420) covers non-commercial use.
Article 443 (Section 4430.1 to 4430.8, inclusive) subjects all sound trucks to the regulations permitting only music or voice, permitting operation only on business days between 11:30 a. m. and 1:30 p. m. and between 4:30 p. m. and 6:30 p. m.; that the sound truck must be kept moving (see note below for copy of Section 4430.3); forbids Respondent brings this action on behalf of the members of Culinary Workers and Bartenders Union, Local 535, who desire to use a sound truck parked at the curb for broadcasting grievances of employees, which they cannot do if the ordinance is enforced. They specifically state they do not desire to use ambulatory trucks.
'4430.3 Sound amplifying equipment shall not be operated unless the sound truck upon which such equipment is mounted is operated at a speed of at least ten (10) miles per hour except when said truck is stopped or impeded by traffic. Where stopped by traffic, the sound amlifying equipment shall not be operated for longer than one (1) minute at each such stop.'
The City and some other organizations have used sound truck amplifying speakers in the past, but hooked up to local electric circuits and only during the two annual festivals when the streets involved were closed to normal traffic and used only for parde purposes.
The trial court, after having found the facts in accord with the stipulation and concluded that the ordinance is unconstitutional parade purposes. of information from motor vehicles lawfully parked by requiring said motor vehicles to be ambulatory,' and entered its judgment prohibiting enforcement of said Section 4430.3. Defendant appealed. Respondent did not appeal.
AMBULATORY REGULATION
From the foregoing it will be seen that the conflict in this case is confined entirely to the restriction against parked use of sound trucks on a street. Respondent attacks the ordinance as unconstitutional, as being in violation of free speech and assembly, and that it denies to respondents the rights of life and liberty and acquiring, possessing and protecting property, all in violation of the 14th amendment to the United States Constitution and Article I, Sections 1 and 10 of the California Constitution. With this we cannot agree.
'First, it should be noted that, 'Courts should exercise judicial restraint in passing upon the acts of coordinate branches of government; the presumption is in favor of constitutionality, and the invalidity of the legislation must be clear before it can be declared unconstitutional.'' (Dittus v. Cranston, 53 Cal.2d, 284, 286, 1 Cal.Rptr. 327, 347 P.2d 671.)
See also Hart v. City of Beverly Hills, 11 Cal.2d 343, 348, 79 P.2d 1080; In re Petersen, 51 Cal.2d 177, 182, 331 P.2d 24, 77 A.L.R.2d 1291; Shivell v. Municipal Court, 188 Cal.App.2d 333, 337[2-6], 10 Cal.Rptr. 283.
In the intricate, complicated social order in which we live there can be no absolute exercise of any right which does not take into account the same right in others. We all have the right of free speech, but no one has the right to use it for the purpose of inciting a riot or uttering false and malicious slander. We all have the right of assembly, but have no right to assemble in a place completely set apart for other purposes, such as a street full of busy traffic. These things have been spoken of or referred to so many times in opinions of our courts of last resort as to require no citation of authority. Innumerable examples could be recited. The very authorities cited by respondent all recognize these factors. As was said in Schenck v. United States, 249 U.S. 47, 52; 39 S.Ct. 247, 249, 63 L.Ed. 470,
'But the character of every act depends upon the circumstances in which it is done. (Cita.) The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.'
The exercise of any human right or privilege always recognizes the reasonable protection of the exercise of the same right in others and the welfare, health and happiness of all. No analysis of any such subject is valid which overlooks or ignores Here, the appellant has sought, by keeping the sound truck ambulatory, to alleviate the problem of the right of the disinterested citized to carry on free speech as against the desire of the sound truck operator to forcibly drive a message to every ear, willing or unwilling, thus allowing the sound truck message to be broadcast, but stealing only a short part of the disinterested citizen's time. We can find in it nothing unreasonable.
Validity of regulation and control of loud speakers and sound amplification has been recognized by many courts. Exemplary thereof is Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608 (New Jersey). As was there said,
'We think that the need for reasonable protection in the homes or business houses from the distracting noises of vehicles equipped with such sound amplifying devices justifies the ordinance.'
See also State ex rel. Nicholas v. Hadley, 48 So.2d 80 (Fla.); Commonwealth v. Geuss, 168 Pa.Super. 22, 76 A.2d 500 (Pa.); Haggerty v. Associated Farmers of Calif., 44 Cal.2d 60, 279 P.2d 734; Brachey v. Maupin, 277 Ky. 467, 126 S.W.2d 881 (Ky.).
We are not here concerned with discrimination such as we found in Rees v. Palm Springs, 188 Cal.App.2d 339, 10 Cal.Rptr. 386. Nor are we concerned with the alleged discretion of the Chief of Police, for with respect to Section 4430.3 he has no discretion whatever. Respondent did not appeal from the refusal of the trial court to declare the other sections unconstitutional and none of them directly affect the mandate of Section 4430.3.
Furthermore, guides are furnished for the Chief of Police. We cannot presume he will disregard them nor act in a discriminatory fashion. Nothing in the stipulated facts furnishes any foundation for believing he threatens to act unlawfully.
The judgment is reversed.
GRIFFIN, P.J., and COUGHLIN, J., concur.