Pain v. Municipal Court

DRAPER, P. J.

Complaint filed in the municipal court alleged that Pain, respondent here and petitioner below, “did maintain and commit a public nuisance by -unlawfully obstructing the free passage and use in the customary manner of a public street.” The complaint charged violation of section 370 of the Penal Code. That section, however, merely defines a public nuisance. Sanction is provided by section 372, which provides for punishment as a misdemeanant of “ [e]very person who maintains or commits any public nuisance ...” Pain, hereinafter called defendant, demurred to the complaint. It was stipulated that if the demurrer were overruled, section 372 would be substituted in the charging allegation, and that thus the court should look to sections 370 and 372, jointly or severally. The demurrer was overruled. Defendant sought prohibition in the superior court, which granted peremptory writ, on the ground that the statute is unconstitutional. The People appeal.

Defendant recognizes the rule that one asserting constitutional infirmities usually is limited to the facts of his own case, and cannot question validity of the statute as it may be applied to others (see

Fort

v.

Civil Service Com.,

61 Cal.2d 331, 338 [38 Cal.Rptr. 625, 392 P.2d 385], and cases there cited). But when a statute restricting free speech or the dissemination of ideas is attacked on the ground of overbreadth and uncertainty, the courts may consider the operation of the statute as to factual situations other than the one at bar (id.,

N.A.A.C.P.

v.

Button,

371 U.S. 415, 432-433 [9 L.Ed.2d 405. 417-418, 83 S.Ct. 328] ;

In re Hoffman,

67 Cal.2d 845 [64 Cal.Rptr. 97, 434 P.2d 353];

In re Bell,

19 Cal.2d 488 [122 P.2d 22]). Defendant asserts that this exception applies here.

In such cases, however, some reasonably direct effect of the regulation upon First Amendment rights appears upon the face of the statute (e.g.,

Thornhill

v.