People v. Dickenson

MONROE, J.

In 1956, prosecution of the defendant was commenced for seven alleged violations of the Municipal Code of San Diego regulating the auto wrecking business. Heretofore five of these counts have been disposed of. The defendant sought a writ of prohibition in the superior court upon the ground that the ordinance was unconstitutional, but the superior court ruled, and it was affirmed by the District Court of Appeal, that the question was one which could and should be properly determined upon the trial of the ease. The case was therefore tried, and the defendant having been found guilty of two separate violations, this appeal is taken.

The sole question for determination is the validity of the two sections of the ordinance governing the auto wrecking business involved. No contention is made with reference to the sufficiency of the evidence, and it may be taken as conceded that if these sections are valid enactments the judgment of conviction should be affirmed.

The first section in question is number 33.0903.1, concerning the fencing. It is provided that such an establishment is to be surrounded by a solid fence or wall at least 6 feet in height. A similar ordinance was before the court in

People

v.

Sevel,

120 Cal.App.2d Supp. 907 [261 P.2d 359], decided by the appellate division of this court. It was there held that an ordinance requiring such an establishment to be surrounded by a fence was a valid and constitutional enactment. The point involved in this case, however, was not considered by the court in that decision. It is conceded that it is entirely within the power and discretion of the municipality to require that an establishment of this character be surrounded by a fence. The defendant contends, however, that the requirement that the fence be solid is for no other purpose than the aesthetic one of screening an unsightly business from the view of the passing public.

*Supp. 874

There can be no question of the general proposition that ordinances of this character must be confined to regulations relative to the health, morals or safety, or the general public welfare.

(Ex parte Quarg,

149 Cal. 79 [84 P. 766, 117 Am.St.Rep. 115, 9 Ann.Cas. 747, 5 L.R.A.N.S. 183] ;

Frost