In Re Borah

California Court of Appeal Jul 13, 1949 No. Crim. 2603Published

Before: Ward

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Holding. The court held that a municipal ordinance prohibiting the use of abusive or obscene language over the telephone is valid, even if it lacks a specific penalty clause, because it must be read in conjunction with general municipal code provisions prescribing misdemeanor penalties. Furthermore, the ordinance does not conflict with state law because it addresses a distinct offense and does not punish the exact same acts as the state's disturbing the peace statute.

Issues

Whether a municipal ordinance is invalid for failing to prescribe a specific penalty for its violation.
Whether a municipal ordinance prohibiting the use of obscene language over the telephone conflicts with state law regarding disturbing the peace.

Disposition. writ discharged

Quotations verified verbatim against the opinion

“The contention that section 210 is invalid because it prescribes no punishment is without merit.”

“Municipal Code, sections 210 and 16 must be read together.”

“The ordinance section and the Penal Code section are not in conflict, not identical, and not precisely the same.”

WARD, J.

In this habeas corpus proceeding petitioner alleges that he was convicted of violating section 210 of the Police Code, part of chapter VIII, article 2 of the San Francisco Municipal Code. The California Constitution, article XI, section 11 provides: “Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”

Section 210 provides: “It shall be unlawful for any person engaged in telephonic conversation with any telephone operator, supervisor or chief operator or

with any other person,

to use . . . any abusive, profane, bawdy, lewd or obscene language.” (Italics added.) Section 210 has no special penalty clause and petitioner contends the section is therefore invalid. Section 16 of Bill No. 1734, Ordinance No. 1.075, provides: “It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements of the Municipal Code. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the Municipal Code shall be guilty of a misdemeanor. Any person convicted of a misdemeanor under the provisions of the Municipal Code, unless provision is otherwise therein made, shall be punishable by a fine of not more than five hundred ($500) dollars or by imprisonment in the County Jail for a period of not more than six (6) months or by both such fine and imprisonment.” Section 16 of the Municipal Code is similar to section 19 of the Penal Code in providing a maximum punishment for the offense of misdemeanor when a punishment is not otherwise prescribed. Municipal Code, sections 210 and 16 must be read together. The numbering of sections is only for the purpose of conven

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ience. “Indeed, the cases abound in admonitions to the effect that one or more code sections are to be read in connection with other sections.” (23 Cal.Jur. § 135, p. 762.) The contention that section 210 is invalid because it prescribes no punishment is without merit.

The offense denounced in section 210 is a misdemeanor, which for convenience may be referred to as a low misdemeanor, that is, one punishable by a fine not exceeding five hundred dollars or six months’ imprisonment in the county jail, or both (§ 16), to distinguish it from a high misdemeanor, or in some instances an indictable misdemeanor, with a greater punishment, either by fine or confinement, “or both.” (7 Cal. Jur. 872.) “At the present time, whether a criminal act is to be classed as a felony or a misdemeanor usually depends on the character of the punishment provided by the' statute defining the crime.” (14 Am.Jur. § 13, p. 762.)

In Re Borah

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WARD, J.

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