SACRAMENTO MUNICIPAL COURT DISTRICT, COUNTY OF SACRAMENTO, State of California, Respondent;
PEOPLE of the State of California by their attorney, the District Attorney for the County of Sacramento, Real Party in Interest.
Civ. 12688.
April 19, 1971.Hearing Denied June 17, 1971.
Attorneys and Law Firms
**332*767 Blackmon, Isenberg & Moulds, Sacramento, for appellant.
Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Charles P. Just, Deputy Attys. Gen., Sacramento, for respondent.
Opinion
FRIEDMAN, Acting Presiding Justice.
Appellant Jack Young faces prosecution for violating Sacramento County Ordinance No. 409. The ordinance prohibits *768 peddling or giving away goods or wares ‘along or upon’ public roads and highways in the unincorporated area of the county.1 The municipal court overruled Mr. Young's demurrer to the complaint and the superior court rejected his application for a writ of prohibition. Both proceedings were grounded upon his claim that the ordinance violated freedoms guaranteed him by the First and Fourteenth Amendments to the federal Constitution. He is here by means of an appeal from the judgment of the superior court. The writ of prohibition was an appropriate remedy under the circumstances. (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 463, 171 P.2d 8;Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 594, 92 Cal.Rptr. 417.)
The case has not been tried and the constitutional challenge is aimed at the face of the ordinance. Nevertheless, some transcribed testimony has been incorporated in the record on appeal. With his demurrer Mr. Young brought on for argument a motion under Penal Code section 1538.5 for an order directing the return of some periodicals seized by the arresting officer. At the hearing the arresting officer testified. Summarization of his testimony may usefully illustrate the ordinance in actual operation:
The officer, a deputy sheriff, was in the vicinity of El Camino and Watt Avenues sometime between 4 and 6 p.m. on a Sunday. (Both streets are busy suburban boulevards, lined with business establishments and shopping centers.) Automobile traffic was fairly heavy. Mr. Young sat on a sidewalk immediately adjacent to the eastbound vehicle lanes of El Camino Avenue. He held up a copy of a periodical called Berkeley Barb, displaying it to oncoming motorists. Next to him on the sidewalk was a stack of copies of the Berkeley Barb. The officer testified that vehicles were slowing to see what Mr. Young was selling. In the officer's opinion a traffic hazard was being created. He arrested Mr. Young for a violation of Ordinance No. 409 and ‘impounded’ 51 copies of the Berkeley Barb. He testified that he would not have made the arrest had a traffic hazard not existed.
The ordinance is also an expression of municipal authority to control use of the streets to ensure safe travel. A restriction upon use of the streets, designed to promote public safety, cannot be disregarded or obliterated by the attempted exercise of some civil right, which, in other circumstances, would be entitled to protection. (Cox v. Louisiana (1965) 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471.)
*770 In In re Hoffman, supra, the defendants had been handing out leaflets in a railway station and were arrested for violating a Los Angeles city ordinance which prohibited unnecessarily extended presence in railway, airport or bus depots. The court nullified the ordinance as an overbroad restriction upon First Amendment freedoms. Di Lorenzo v. City of Pacific Grove (1968) 260 Cal.App.2d 68, 67 Cal.Rptr. 3, sustained an ordinance which prohibited deposit of throwaway matter on residential property without the owner's consent, holding that the ordinance was (at p. 74, 67 Cal.Rptr. 3) ‘reasonably and narrowly drawn’ to serve a valid public interest.2
Viewed in the light of these decisions, the Sacramento County ordinance suffers from the vice of overbreadth. Section 1 of the ordinance (fn. 1, supra) describes the prohibited activity. Section 2 of the ordinance is a legislative finding. The finding declares, in essence, that hawking articles on public streets interferes **334 with traffic flow and creates danger. When the reader turns from that finding to the prohibition in section 1, he discovers that the prohibition extends far beyond the finding, for section 1 prohibits the sale or gift of goods along or upon any public road or highway.
The public sidewalks of America, particularly in business districts, are an accepted and traditional locale for the sale of newspapers and the distribution of printed appeals. The sidewalk newspaper vendor finds some patronage among the occupants of passing automobiles. More often, he seeks the patronage of pedestrians on the sidewalks. So does the distributor of pamphlets and handbills. The sidewalks are longitudinal strips of concrete along the public streets. Vendors sell and distributors give away publications to pedestrians along the public streets. In the face of the Sacramento County ordinance, no vendor or distributor of printed matter may address himself to pedestrians along the street without risking arrest and prosecution.
The ordinance sweeps up not only activity along busy avenues, but also distributors who address themselves to pedestrians and householders along quiet residential streets characterized by little automobile travel. Equally with the vendor who seeks customers among the occupants of moving automobiles, the evangelist who gives out religious tracts and the campaigner who distributes election handbills often conducts his activity on the sidewalks along the public streets.
Extrapolations from the phrase ‘along or upon’ are not the real vice of the Sacramento County ordinance. The vice lies in its prohibition of *771 pedestrian-addressed activities when a restriction upon vehicle-addressed activities would have served its purpose. In short, the prohibitory portion of the ordinance is not narrowly limited to activities which endanger automobile traffic. It extends broadly to peaceful, communicative activities which pose not the slightest hazard to public safety. It exposes to arrest all who would sell or give pedestrians printed matter. The ordinance is unconstitutionally over-broad because its first section would punish constitutionally protected activities, although a narrower measure would fully achieve the objective described in its second section.
The judgment is reversed and the cause remanded with directions for the issuance of a writ of prohibition as prayed.
JANES, J., concurs.
REGAN, Associate Justice (dissenting).
I dissent. In my view the Sacramento County Ordinance is reasonable, not broader than constitutionally permissible, and constitutes a necessary and proper exercise of the police power of the county.
‘From these decisions certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.’ (Emphasis added.)
The ordinance is limited to conduct related to the free and unobstructed flow of traffic on the public roadways and I find no uncontrolled suppression of the privileges accorded under the First Amendment in forbidding the activities of petitioner here, which I find beyond the constitutionally protected areas of freedom of speech and press.
One thrust of the majority opinion is that the ordinance sweeps up all persons who conduct any hawking, peddling or giving away of material on the sidewalks along the public streets. The ordinance does not mention sidewalks, nor does it expressly forbid such activity on the sidewalk. Its prohibition is solely against such activity along or upon the public highway. A reasonable interpretation which we must give to the ordinance would be to forbid only that activity at any place along the highway where it would interfere with the free flow of traffic. Certainly that activity not directed to the highway traffic on parts of a sidewalk along the highway is not proscribed. The majority opinion can be construed as holding the *773 buildings facing the sidewalks adjacent to the highway also are swept up by the language of the ordinance. I do not so read the ordinance.
‘To comply with the constitutional requirement of due process of law, the crime for which a defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its reach to understand and correctly apply them. ‘To make a statute sufficiently certain to comply with constitutional requirements, it is not necessary **336 that it furnish detailed plans and specifications of the acts or conduct prohibited.’ [Citations.]
‘Although higher standards of certainty will be required of penal than of civil statutes [citation,] a statute is sufficiently certain if it employs words of long usage or with a common law meaning, ‘notwithstanding an element of degree in the definition as to which estimates might differ.’ [Citations.] For example, the courts have upheld statutes employing such terms as: ‘to make diligent effort to find the owner’ [citation]; ‘unreasonable speed’ [citation]; ‘unjustifiable physical pain or mental suffering’ [citation]; ‘practice law’ [citation]; and ‘to the annoyance of any other person’ [citation].'
‘It is true that ’[c]ivil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts. * * *‘ [Citations.] However, “[r]easonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.’ [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources.' (American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 218, 28 Cal.Rptr. 700, 379 P.2d 4;People v. Victor, 62 Cal.2d 280, 300, 42 Cal.Rptr. 199, 398 P.2d 391.) ‘[A] statute is sufficiently certain if it employs words of long usage or with a common law meaning, ‘notwithstanding an element of degree in the definition as to which estimates might differ.’' [Citations.]'
‘A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.’
‘Section 1. It shall be unlawful for any person to peddle or hawk any goods, wares, merchandise or edibles, or solicit any customers or patrons, or to give away or offer to give away any goods, wares, merchandise or edibles, along or upon any public road or highway in the unincorporated area of the County of Sacramento.
‘Section 2. The Board of Supervisors expressly find that peddling or hawking goods, wares, merchandise or edibles, on public roads or highways interferes with the free flow of traffic thereon and constitutes a serious and dangerous hazard to the public.
‘Section 3. This ordinance shall not prohibit a peddler or hawker of goods, wares, merchandise or edibles from taking orders or delivering any commodity from any vehicle from that portion of the public road or highway immediately adjacent to the premises or residence of the customer, patron or purchaser.’