In Re Wisner
Before: James
Synopsis
Municipal Ordinance—Playing op Musical Instruments and Utterance op Loud Sounds in Public Places—Discriminatory and Unreasonable Regulation.—A municipal ordinance providing that it should be unlawful for any person, firm, or corporation in any public or uninclosed place in the city to play any musical instrument, to sing, to make any loud or unusual noise, or to call out goods, wares, or merchandise, or the attractive features of any amusement, device, or place of recreation or refreshment, without first securing from the board of trustees a permit so to do, which permit should be granted only on written application specifying the place for which the permit was to be granted and the kind of amusement or noise desired to be made, is void, as both discriminatory and unreasonable, in that it covers more than the public streets, places, and ways, and includes private premises and every such place as may be “uninelosed.”
JAMES, J.
The petitioner, being imprisoned, by the marshal of the city of Venice upon commitment after conviction for an alleged crime, to wit, the violation of a certain ordinance of the city of Venice, sued out this writ to determine the validity of such imprisonment.
The ordinance under which petitioner was prosecuted, in that part descriptive of the offense which might be committed thereunder, is as follows: “It shall be unlawful for any person, firm or corporation, in any public or
uninclosed place,
in the City of Venice, to play any musical instrument, or to sing, or to make any loud or unusual noise, or to call out goods, wares or merchandise, or the attractive features of any amusement, device or place of recreation or refreshment, without first securing from the Board of Trustees, a permit so to do. Said permit shall be granted only upon a written application, which application must specify the place for which the permit is to be granted, and the kind of amusement or noise desired to be made.” It is contended that the ordinance is void, first: "Because it invades the right of the citizen in unduly restricting liberty of action; second, that it is discriminatory. The right of a legislative body in the exercise of the police power to prescribe and enforce reasonable police measures cannot be questioned. However, such power is not without bounds or limits. With regard to employments, occupations, or amusements not of such a character as to be in themselves commonly objectionable, the arm of the police power may be extended only to regulate and not prohibit. The regulation must be reasonable and must apply alike to all persons within a class.
[639]
In
County of Los Angeles
v.
Hollywood Cemetery Assn.,
124 Cal. 344, 349, [71 Am. St. Rep. 75, 57 Pac. 153], the court said: “If the business be lawful, and having no injurious tendency, they [the legislative authority] cannot say who shall and who shall not exercise the right itself. Under the guise of regulating a business the municipality cannot make prohibition possible by committing to the officers of the municipality the arbitrary power to deny permission to engage in that business.” In the concurring opinion of Mr. Justice Shaw of the supreme court in the
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