Com. ex rel. Hines v. Winfree

• Citation: 408 Pa. 128,182 A.2d 698
• Parties: COMMONWEALTH of Pennsylvania ex rel. Harry V. HINES, Appellant, v. Howard WINFREE, Chief of Police, City of Chester.
• Decision Date: 28 June 1962
• Court: Pennsylvania Supreme Court

182 A.2d 698

408 Pa. 128

COMMONWEALTH of Pennsylvania ex rel. Harry V. HINES, Appellant, v. Howard WINFREE, Chief of Police, City of Chester.

Supreme Court of Pennsylvania.

June 28, 1962.

[Copyrighted Material Omitted]

John A. Reilly, Catania, Gorbey, Reilly & Nolan Chester, for appellant.

Joseph W. deFuria, City Solicitor, Philip A. McMunigal, Jr., Asst City Solicitor, Chester, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, and ALPERN, JJ.

JONES Justice.

This appeal challenges the validity of an ordinance of the City of Chester which prohibits the making of unnecessary noises and regulates the use of sound trucks and sound amplifying machines on or about the highways of that municipality.

On September 26, 1950, the City Council of Chester passed an ordinance entitled 'An ordinance to prohibit the making of unnecessary noises and regulating the use of sound trucks and sound amplifying machines'. That ordinance, in pertinent part, provides: 'SECTION 2. No person, persons, firm or corporation shall play, use, operate, or knowingly permit to be played, used or operated any radio receiving set, musical instrument, phonograph, sound amplifier, loud speaker, or other machine or device for the reproduction of sound, upon property (real or personal) or premises owned, occupied or used by him, them, or it, which is not measured and regulated by decibels so that the sound coming from such machine can be audibly heard at a distance greater than one (100) hundred feet from the property or premises wherein such machine or device is located. Nothing herein contained shall be construed to prohibit the playing of a band or orchestra in any concert hall, auditorium, club room or public park. SECTION 3. No person shall operate a sound truck or loud speaker on the streets or public places of the City of Chester without first obtaining a permit therefor from the Council of the City of Chester. Such permit shall be for a period of one day only. Such permit shall not be transferable from person to person or from sound truck to sound truck any may not be extended as to the date it shall be used, nor shall any permit for the operation of such sound truck be issued for use earlier than 8 o'clock A.M. or later than 9 o'clock P.M. of the prevailing local time. Every application for a permit shall be accompanied by a permit fee of One ($1.00) Dollar.' That ordinance further provides the manner of applying for a permit for the use of a sound truck or loud speaker, prescribing, inter alia, that a permit application must be accompanied by a 'certificate from an engineer that such amplifying machine is so equipped and regulated by decibels, that the sound coming from such machine cannot be audibly heard at a distance greater than one (100) hundred feet from the sound truck or amplifying machine.' For a violation of this ordinance a minimum fine of $50 and a maximum fine of $200 is prescribed; in default in payment of the fine and costs, imprisonment for a minimum period of 30 days and a maximum period of 90 days in the county jail is prescribed.

On December 22, 1955, the Council of Chester amended Section 3 of the ordinance to provide for an increase in the amount of the permit fee from $1 to $25 per diem.

On August 3, 1959, during a political campaign, the Democratic Campaign Committee Chairman applied for a permit to use one sound truck from August 3, 1959 to and including November 3, 1959, excluding Sundays, [a period of 80 days] and submitted a check for the permit fee in the amount of $80 and to this application no certificate of an engineer was attached. The application was rejected for certain stated reasons: (a) the application did not state the make and license number of the truck to be operated; (b) a certificate of an engineer was not attached; (c) a proper fee was not submitted; (d) a permit could be granted for a period of one day only so that an application must be filed for each day for which a permit is desired. No further application was made.

On August 28, 1959, Harry V. Hines, Democratic candidate for mayor, addressed a political rally in Chester from a sound truck using sound amplifying equipment without a permit ^[*] and, thereafter, a summons was issued to Hines to appear before a magistrate on September 3, 1959. After a hearing, Hines was found guilty of a violation of the ordinance and sentenced to pay a fine of $50 and costs. On advice of counsel, Hines refused to pay the fine and costs and was committed to jail.

Hines then petitioned for a writ of habeas corpus alleging the ordinance is invalid and unconstitutional: (a) the terms of the ordinance are vague, indefinite and impossible to comply with; (b) it is impossible to comply with Section 3(i) because it is scientifically impossible to regulate sound equipment by decibels so that sound cannot be heard audibly at a distance of more than 100 feet from the sound truck; (c) the ordinance requirement that a permit be issued only for one day at a time is oppressive and bears no relationship to the health, welfare and good morals of the community; (d) the $25 permit fee is excessive and bears no reasonable relationship to the costs of regulating sound trucks and sound amplifying equipment; (e) as enforced, the ordinance discriminated against Hines. After a hearing, the Court of Common Pleas of Delaware County held that the ordinance was a proper exercise of police power and valid and, therefore, dismissed Hines' petition for the writ of habeas corpus. From that order the present appeal was taken.

In this area of the law certain principles are well settled: (1) freedom of speech is a fundamental right which is not subject to impairment by state action ^[1] (Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; 1621, Inc. v. Wilson, 402 Pa. 94, 102 103, 166 A.2d 271); (2) such right of speech does not, however, prohibit a municipality, in the exercise of its police power for the safety, convenience, health and well being of its citizens, from reasonably regulating the use of sound trucks and other voice amplifying equipment on its highways ^[2] (Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Com. v. Geuss et al., 168 Pa.Super. 22, 76 A.2d 500, aff'd. 368 Pa. 290, 81 A.2d 553, appeal dismissed 343 U.S. 912, 72 S.Ct. 360, 96 L.Ed. 682); (3) a municipal ordinance is presumptively valid (Archbishop's O'Hara's Appeal, 389 Pa. 35, 50, 131 A.2d 587; Lutz v. Armour, 395 Pa. 576, 578, 151 A.2d 108; Whitehall Twp. v. Oswald, 400 Pa. 65, 68, 161 A.2d 348) and it is to be presumed that in passing the ordinance the municipal officers acted in good faith (Bilbar Construction Co. v. Easttown Twp. etc., 393 Pa. 62, 71, 141 A.2d 851); (4) the amount of the fee required for the issuance of a permit to use a 'sound truck' under the ordinance must bear a reasonable relationship to the cost to the municipality of the regulation and enforcement of the ordinance. (Olan Mills, Inc. v. Sharon, 371 Pa. 609, 92 A.2d 222; Flynn et al., v. Horst et al., 356 Pa. 20, 28, 51 A.2d 54; American Baseball Club etc., v. Philadelphia, etc., 312 Pa. 311, 316, 167 A. 891, 92 A.L.R. 386, appeal dismissed 290 U.S. 595, 54 S.Ct. 128, 78 L.Ed. 524).

First, Hines contends that the ordinance is invalid because it is 'vague, indefinite or uncertain'. There can be no doubt that, if a statute or an ordinance is so 'vague, indefinite or uncertain' that the courts are unable to determine, with any reasonable degree of certainty, the intent of the legislative body, such statute or ordinance is invalid. Murray et ux. v. Phildelphia et al., 364 Pa. 157, 176, 71 A.2d 280; Willcox v. Penn Mutual Life Ins. Co., 357 Pa. 581, 595, 55 A.2d 521, 174 A.L.R. 220; Miller v. Belmont Packing & Rubber Co., 268 Pa. 51, 63, 110 A. 802. The test is whether the language of the legislation clearly reveals the intent of the legislative body and the instant ordinance certainly meets that test. This ordinance clearly shows that it was the intent of the councilmanic body to protect the citizens of Chester from such 'unnecessary noises and sounds' as would occasion them discomfort and annoyance and to regulate the use of sound trucks and sound amplifying equipment in and about the public highways so as to decrease accident hazards, insure the orderly movement of traffic and avoid traffic congestion on such highways. This ordinance does not prohibit sound trucks and sound amplifying equipment in and about the highways; on the contrary, this ordinance permits the use of such trucks and equipment under certain conditions which are clearly set forth and with which compliance is neither onerous nor difficult. ^[3] This contention of Hines is without merit.

Hines next urges that the requirement in the ordinance that a permit be issued on a per diem basis is so unreasonable as to invalidate the ordinance. Ordinances which are regulatory in nature must be reasonable. Lutz v. Armour, 395 Pa 576, 151 A.2d 108; Warren v. City of Philadelphia, 382 Pa. 380, 115 A.2d 218; Adams v. City of New Kensington, 357 Pa. 557, 55 A.2d 392. The instant ordinance does not limit or restrict a permit to only one day of the week, the month or the year; it simply provides that each permit will be issued on a per diem basis and, if additional permits are required, such permits will be issued on a per diem basis. The proper enforcement of this ordinance requires that the police be alerted to the exact date or dates and the hours on each date when the sound trucks and sound amplifying equipment will be used in or about the public highways so that additional police can be directed to the area where the sound trucks and sound amplifying equipment will be used. For instance, the use of such sound trucks and sound amplifying...