Dickenson v. Municipal Court of San Diego Judicial Dist., San Diego County
| Decision Date | 11 July 1958 |
| Citation | 328 P.2d 32,162 Cal.App.2d 85 |
| Parties | Edgar William DICKENSON, Lawrence Virgil Harris, and Lester Loeser, Petitioners and Appellants, v. MUNICIPAL COURT OF SAN DIEGO JUDICIAL DISTRICT, COUNTY OF SAN DIEGO, State of California, Respondent. Civ. 5834. |
| Court | California Court of Appeals Court of Appeals |
Swing, Scharnikow & Staniforth and Le Roy Seckler, San Diego, for appellants.
R. J. Curran, City Prosecutor, San Diego, and John L. Newburn, Deputy City Prosecutor, San Diego, for respondent.
On January 26, 1956, complaints were filed in the Municipal Court of the San Diego Judicial District, County of San Diego, charging the appellants with the commission of seven misdemeanors in violation of various sections of the City of San Diego Municipal Code. The sections involved deal with the regulation and licensing of auto wrecking establishments in the city of San Diego and are substantially as follows:
Section 33.0903. Regulations--General.
It shall be unlawful for any person to engage in the business of an automobile wrecker, unless such business is carried on, maintained or conducted in compliance with the following regulations:
Section 31.0121. Permit Requirements.
No person shall engage in any business required to be licensed under the provisions of this Code until such license is first obtained.
Section 33.0903.1. Regulations--Enclosed Premises.
That such business shall be carried on, maintained or conducted entirely inside an enclosed building or buildings, unless the premises on which such business is carried on, maintained or conducted shall be entirely enclosed by a solid fence or wall at least six (6) feet in height and constructed according to the requirements of the building code of said City.
Section 33.0903.2. Regulations--Maintenance of Fences.
That such fence or wall shall be maintained in a neat, substantial, safe condition and shall be painted.
Section 33.0903.3 provides that a sign as therein described must be displayed on the property and regulates signs on the outward fence thereof.
Section 33.0903.4. Regulations--Gates. Gates for access to the premises shall swing inwardly, and such gates shall be kept closed when the premises are not open for business.
Section 33.0903.5. Regulations--Height of Piles.
That no automobile salvaged parts, metals, tires and/or accessories shall be piled, or permitted to be piled, in excess of the height of the enclosing fence or wall or nearer than two feet thereto.
Section 33.0903.6. Regulations--Inflammable Liquids.
That all gas, oil or other inflammable liquid shall be drained and removed from any unregistered motor vehicle located thereon.
Section 33.0903.7. Regulations--Access for Inspection.
That the premises shall be so arranged that reasonable inspection or access to all parts of the premises can be had at any time by the proper fire, health, police and building authorities.
Appellants, by demurrer, challenged the constitutionality of these sections. After the Municipal Court judge overruled the demurrer, appellants entered pleas of 'not guilty' and trial was set for December 3, 1956, in said court. Appellants then filed a petition for a writ of prohibition in the Superior Court of San Diego county and an order restraining and prohibiting the said Municipal Court from entertaining, passing upon, hearing, trying and deciding motions, proceedings and trials based upon said complaints. An order granting an alternative writ of prohibition and order to show cause was issued by the said Superior Court and on August 9, 1957, said court ordered 'That the alternative writ of prohibition is discharged and a peremptory writ is denied.' The appeal herein is from this order. Appellants contend that section 33.0903.7 is void for vagueness and uncertainty and that the remaining sections involved are arbitrary, unreasonable and impose unconstitutional burdens upon appellants, entirely foreign to the legitimate objects of the police power.
The record shows that there has been no trial in the Municipal Court on the charges contained in the complaints filed and that appellants seek to avoid further proceedings in said court by the use of a writ of prohibition. This is an extraordinary writ and the question arises as to whether the court abused its discretion in refusing to grant it under the circumstances of this case.
In 42 American Jurisprudence, Prohibition, Section 7, Page 143, it is said:
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...at law. Relying on the rationale of Rescue Army v. Municipal Court (1946), 28 Cal.2d 460, 171 P.2d 8, and Dickenson v. Municipal Court (1958), 162 Cal.App.2d 85, 328 P.2d 32, respondents assert that the mere fact that defendant will have to stand trial, with nothing more, is not enough. In ......
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