CITY OF LOS ANGELES et al., Defendants and Respondents.
In re Vivienne E. WELTON, on Habeas Corpus.
L.A. 30552.Cr. 19092.
Dec. 8, 1976.
Attorneys and Law Firms
*501***669**1120 Donald Low and Jonathan K. Golden, Beverly Hills, for plaintiff and appellant and for petitioner.
John T. Hansen, San Francisco, Joseph Remcho, Los Angeles, Charles C. Marson, ***670**1121 San Francisco, and Fred Okrand, Los Angeles, as amici curiae on behalf of plaintiff and appellant.
Burt Pines, City Atty., Ward G. McConnell and Gerry L. Ensley, Deputy City Attys., for defendants and respondents and for respondent.
Opinion
CLARK, Justice.
Vivienne Welton appeals from judgment in a declaratory relief action upholding Los Angeles Municipal Code section 42.00, subdivisions (b) and (e), as constitutional. She also seeks habeas corpus relief from contempt citations issued against her for violating an injunction based on section 42.00 and on Code of Civil Procedure section 731. Mrs. Welton contends section 42.00 and the resultant injunction are invalid abridgements of her First Amendment rights.
For 14 years Mrs. Welton sold maps to the public on the parkway of Baroda Drive near Sunset Boulevard in Los Angeles. The maps depict the addresses and routes to movie star homes. The map is copyrighted under federal law and exempted from both city business tax and state sales tax as a periodical. (Rev. & Tax.Code, s 6362.)
Section 42.00, as amended in 1972, provides: ‘(b) No person, except as otherwise provided in subsection (e) and (j) of this section,1 shall on any street offer for sale, solicit the sale of, announce by any means the *502 availability of, or have in his possession, control or custody . . . any goods, wares, or merchandise which the public may purchase at any time.’2 Subdivision (e) provides: ‘No person shall sell or offer for sale any newspaper, magazine, periodical, news publication or other printed matter while upon the roadway of any street within the City of Los Angeles provided, however, that persons engaged in selling or offering for sale or disposing of newspapers, news periodicals, or other news publications may sell, offer for sale, solicit the purchase of and advertise the same upon any portion of the sidewalk or parkway.’
Mrs. Welton was initially convicted of violating section 42.00. On appeal, the appellate department of the superior court reversed the conviction on the ground the section is unconstitutional, the jury instruction based upon it therefore constituting reversible error. The appellate department attempted to validate the ordinance by construing it as applicable only to printed matter unprotected by the First Amendment. The criminal complaint was then dismissed on motion of the People.
When Mrs. Welton was again confronted with prosecution, she sought both a judgment declaring section 42.00 unconstitutional and an injunction against the city. The city moved for summary judgment. The trial court declared the ordinance constitutional as construed by the appellate department and found that Mrs. Welton could be prosecuted because her activity constituted commercial speech, unprotected by the First Amendment. Accordingly, the court denied Mrs. Welton declaratory and injunctive relief and granted the city's motion for summary judgment.
Subsequent to the declaratory relief action, the city sought an injunction against Mrs. Welton. The court first issued a temporary restraining order and then a preliminary injunction. The injunction prohibited her from selling maps ‘in or on any street as defined in Section 42.00(a) of the Los Angeles Municipal Code.’ (See fn. 2.) Between 9 August 1975, the date she was served the injunction, and 29 September 1975, Mrs. Welton repeatedly violated the court's order. She was adjudged in contempt and sentenced to 10 days in jail. However, the *503 sentence was stayed pending ***671**1122 our resolution of her application for writ of habeas corpus.
However, subdivision (e)(1) constitutes a valid exercise of the police power. This subdivision prohibits the sale of printed material on the Roadway of any street, while specifically permitting the sale of news-related items on Parkways and Sidewalks. The roadway is that portion of the street travelled by vehicles. (Los Angeles Mun.Code, s 42.00, subd. (a).) Prohibiting dissemination of anything in the path of cars, trucks and buses obviously furthers public safety, constituting a reasonable place restriction. The fact that the same subdivision does not specifically permit the sale of nonnews-related printed matter on parkways and sidewalks is not pertinent. The sale of such material on adjoining property (parkways and sidewalks) is not prohibited by this subdivision and therefore need not be specifically exempted. The express language permitting the sale of news-related items is simply an effort to insure that the principal means by which First Amendment rights are exercised are not abridged.
We next determine whether subdivision (b) is susceptible to a judicial construction curing its constitutional infirmity.
Subdivision (b) may be construed in a manner consistent with the Constitution. Subdivision (b) prohibits the sale of ‘goods, wares and merchandise.’ These terms indicate that the principal objective of the ordinance is the regulation of the sale of products—not printed matter. This language also indicates to the reader that subdivision (b)‘s prohibitions are not directed primarily at speech or press. A construction limiting subdivision (b)‘s applicability to the sale of products therefore does not entail risk of inhibiting First Amendment rights.
An injunction based on an unconstitutional ordinance exceeds the issuing court's jurisdiction. (Fortenbury v. Superior Court (1940) 16 Cal.2d 405, 407—408, 106 P.2d 411.) To the extent that the present injunction is based on her activity allegedly in violation of section 42.00, subdivision (b), it was issued in excess of the court's jurisdiction and cannot provide a basis for adjudging Mrs. Welton in contempt.
A public nuisance statute may be enforced only in a manner consistent with constitutional protections. (People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 55, 130 Cal.Rptr. 328, 550 P.2d 600.) This injunction, like the ordinance, suffers from overbreadth. It prohibits Mrs. Welton's exercise of First Amendment rights on all streets, sidewalks and parkways in all residential areas. The ***674**1125 city has failed to demonstrate that such a broad prohibition is necessary to the attainment of a legitimate police power purpose. Its interest in abating public nuisance cannot be pursued by means infringing personal *508 liberties when less restrictive alternatives are available. (See Shelton v. Tucker (1960) 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231.)
The judgment in Los Angeles Superior Court No. C—102195 is reversed. The writ of habeas corpus is issued and the order adjudging Mrs. Welton in contempt is vacated.
WRIGHT, C.J., and McCOMB, TOBRINER, MOSK, SULLIVAN and RICHARDSON, JJ., concur.
Subdivision (j) authorizes the board of public works to issue permits permitting certain activities on sidewalks in connection with community civic events. Subdivision (j) is not here in issue.
Los Angeles Municipal Code section 42.00, subdivision (a), defines ‘street’ as meaning ‘all that area dedicated to public use for public street purposes and shall include, but not be limited to roadways, parkways, alleys and sidewalks.’ This definition is applicable to all subdivisions of section 42.00.