Alves v. Justice Court of Chico Judicial Dist., Butte County

Decision Date08 February 1957
Citation306 P.2d 601,148 Cal.App.2d 419
PartiesCharlie Walter ALVES, Petitioner and Appellant, v. JUSTICE COURT OF CHICO JUDICIAL DISTRICT, COUNTY OF BUTTE, State of California, Respondent. Civ. 9132.
CourtCalifornia Court of Appeals Court of Appeals

Laughlin & McKalson, Chico, for appellant.

Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., Loyd H. Mulkey, Jr., Asst. Dist. Atty., Chico, and Grayson Price, City Atty., Chico, for respondent.

PEEK, Justice.

Appellant Alves was charged with a violation of section 702 of the Welfare and Institutions Code, the specific acts alleged being that he wilfully aided and abetted a minor to be in a public place at the hour of 11:30 p. m. in violation of the curfew law of the city of Chico (section 684a of the Chico Municipal Code), and that said act by the appellant caused the minor to come within section 700(m) of the Welfare and Institutions Code. At the preliminary hearing appellant moved to dismiss the complaint upon the ground that the ordinance in question is unconstitutional. His motion was denied, and he thereafter sought a writ of prohibition in the superior court which was also denied. He now appeals from the order denying the same. He does not question the right of the city to adopt a curfew ordinance. The essence of his contention is that the ordinance in question is offensive to Article I, section 1, of the California Constitution and to the Fourteenth Amendment to the Constitution of the United States, in that it unreasonably interferes with the exercise of personal rights guaranteed by the cited constitutional provisions.

Although no factual question is presented, it appears from the briefs that the appellant, aged 21, was sitting in an automobile at a drive-in restaurant with three other young persons, among whom was one Steve Lee Kirby who was under the age limit set out in said ordinance, but who was then married and emancipated from his parents' control.

The pertinent portions of the ordinance in question read as follows:

'Subdivision (a). It shall be unlawful for any minor under the age of seventeen years of age to be in or on any public street, park, square or any public place between the hours of 10:00 o'clock P.M. and 5:00 o'clock A.M. of the following day, except when and where said minor is accompanied by a parent or legal guardian having the care and custody of said minor, or where the presence of said minor in said place or places is connected with, and required by, some legitimate business, trade, profession or occupation in which said minor is engaged.

'Subdivision (b). Any person assisting, aiding, abetting or encouraging any minor under the age of seventeen years to violate the provisions of Subdivision (a) hereof shall be guilty of a misdemeanor; and when any minor is found violating the provisions of Subdivision (a) a presumption shall arise that the parent or legal guardian having the care and custody of said minor assisted, aided, abetted and encouraged said minor in so violating said Subdivision (a).'

The language of subdivision (a) is clear and explicit in that all minors under the stated age are prohibited from being in or on a public street or place except those minors who are accompanied by a 'parent or legal guardian' or those whose presence 'on any public street, park, square or any public place' between the hours set forth 'is connected with, and required by, some legitimate business, trade, profession or occupation in which said minor is engaged.'

Appellant urges that the exception in the clause of said ordinance, 'or where the presence of said minor in said place or places is connected with, and required by, some legitimate business, trade, profession or occupation in which said minor is engaged,' encompasses only employment activities.

Respondent's answer to this argument is that if the words 'legitimate business' are interpreted to have the broad meaning of 'legitimate activity' the entire argument as to the restrictive effect of the statute must fail. In support, thereof, they argue that Webster's New International Dictionary (2d Ed. 1950) defines the word 'business' in part to be 'the quality or state of being busy,' and since 'busy' is defined in part as 'engaged in some action on which one is intent; actively at work; occupied with serious affairs; not idle or at leisure; * * * active,' that therefore construing the word 'business' as used in the ordinance to have the usual and ordinary meaning, 'permits an interpretation which gives full validity to the legislative intent while at the same time indicating a reasonable flexibility of conduct on the part of the minor.' Respondent then concludes its argument with the comment: 'An explanation of his presence late at night which shows a legitimate activity or reason would be a complete defense to the charge of violating the ordinance while preserving the spirit of the legislative intent.'

Even if we were to assume the validity of respondent's argument that 'legitimate business' as used in the ordinance must be interpreted to mean 'legitimate activity,' there is the further element not considered by respondent that the minor's presence also must be 'required.' In other words, even if it be said that presence at a high school or college basketball game, football game, dance, a theater or church was a 'legitimate activity,' certainly it would not be required. There could be little question that the minor's presence at such affair would be wholly voluntary, and no question at all that the successful prosecution of the affair or activity required his presence.

It would appear that the words 'legitimate business' as used in the ordinance must be read with the words which follow: 'trade, profession or occupation in which said minor is engaged,' and when so read it is quite apparent that they refer to employment. Even if this were not true and the interpretation of respondent was accepted, we would then be confronted with the obvious vagueness of the term 'legitimate activity,' and another constitutional question would be posed.

The rule is too well established to warrant citation of authority that a municipality, under its inherent police power, may enact legislation which may interfere with the personal liberties of its citizens and impose penalties for the violation thereof where the general welfare, public health and safety demand such enactment; but this rule is always subject to the rule of reasonableness in relation to the objects to be attained.

It is interesting to note that the parties have cited only two purely curfew ordinance cases; one, Ex parte McCarver, 39 Tex.Cr.R. 448, 46 S.W. 936, 42 L.R.A. 587, which is referred to as 'the first decision of a court of last resort on the question involved' in the footnote to 42 L.R.A. 587. The second is the case of People v. Walton, 70 Cal.App.2d Supp. 862, 161 P.2d 498, decided by the appellate department of the Los Angeles County Superior Court.

The McCarver case concerned...

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  • People v. Trantham
    • United States
    • California Superior Court
    • July 30, 1984
    ...v. Drew (1967) 70 Wash.2d 405, 423 P.2d 522; see, also, Model Pen.Code [Proposed Official Draft 1962] § 250.6; Alves v. Justice Court (1957) 148 Cal.App.2d 419, 306 P.2d 601; cf. In re Nancy C. (1972) 28 Cal.App.3d 747, 105 Cal.Rptr. Although conceding that "[a] local entity might have the ......
  • Bykofsky v. Borough of Middletown
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    • U.S. District Court — Middle District of Pennsylvania
    • August 22, 1975
    ...54 Hawaii 647, 513 P.2d 1385; City of Seattle v. Pullman, 1973, 82 Wash.2d 794, 514 P.2d 1059; Alves v. Justice Court of Chico Judicial District, 1957, 148 Cal.App.2d 419, 306 P.2d 601; Ex parte McCarver, 1898, 39 Tex.Cr.R. 448, 46 S.W. Existing state authority is of little assistance in an......
  • Brown v. Ashton
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    • Court of Special Appeals of Maryland
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    ...In re Mosier, 59 Ohio Misc. 83, 13 O.O.3d 290, 394 N.E.2d 368 (Ct.Comm.Pleas.Ohio 1978); Alves v. Justice Court of Chico Judicial Dist., 148 Cal.App.2d 419, 306 P.2d 601 (1957). But see City of Milwaukee v. K.F., supra. An ordinance containing language so imprecise that it cannot be underst......
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    ...vague, and violative of minors' First Amendment, Due Process, and Equal Protection rights); see also Alves v. Justice Court of Chico Judicial Dist., 148 Cal.App.2d 419, 306 P.2d 601 (1957) (invalidating juvenile curfew ordinance as an "unlawful invasion of personal rights and liberties"); C......
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