Kelly v. Mahoney

• Decision Date: 31 October 1960
• Citation: 8 Cal.Rptr. 521,185 Cal.App.2d 799
• Court: California Court of Appeals Court of Appeals
• Parties: H. L. KELLY, Respondent, v. J. H. MAHONEY, Judge, and The Justice Court of the Livingston Judicial District, County of Merced, State of California, Appellants. Civ. 9904.

Page 521

8 Cal.Rptr. 521

185 Cal.App.2d 799

H. L. KELLY, Respondent, v. J. H. MAHONEY, Judge, and The Justice Court of the Livingston Judicial District, County of Merced, State of California, Appellants.

Civ. 9904.

District Court of Appeal, Third District, California.

Oct. 31, 1960.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., and Stephen P. Galvin, Dist. Atty., Merced, for appellants.

Kane & Canelo by Thomas J. Kane, Jr., Merced, for respondent.

SCHOTTKY, Justice.

This is an appeal by J. H. Mahoney, the judge, and the Justice Court of the Livingston Judicial District of Merced County from and order of the Superior Court of Merced County granting a peremptory writ of prohibition restraining the justice court and the judge from further proceeding in an action charging H. L. Kelly with a violation of section 3.01, subdivision H, of Ordinance No. 309 of the county of Merced.

The ordinance referred to provides for a general agricultural zone in which turkey ranches are permitted, 'providing a cover crop or other dust control methods are used.' A violation of any provision of the ordinance is a misdemeanor. In June, 1959, a complaint was filed in the justice court charging Kelly with a violation of the section of the ordinance requiring cover crops or other dust control methods. A demurrer to the complaint was filed. The grounds of the demurrer were, in part, '(2) that the facts stated in the complaint do not constitute an offense.' The demurrer was overruled and a petition for a writ of prohibition was then filed in the superior court.

After a hearing the superior court found as follows:

'* * * [T]hat the Court and Judge thereof have no jurisdiction to proceed to try petitioner for the alleged offense because said Ordinance is unconstitutional on the following grounds:

'(a) It is unreasonable and discriminatory in that it does not apply to the raising of chickens on chicken ranches but only turkey ranches. The Court further finds that the raising of chickens on chicken ranches also creates a dust problem and also undesirable odors.

'(b) The Ordinance is so vague and indefinite in its terms that reasonable men must guess as to its meaning and differ as to its application. The Court further finds in that connection that this is a penal statute and that it is not so clear and unambiguous that one does not have to speculate as to its meaning.

'(c) The Court further finds that Subdivision (h) of Section 3.01 of Merced County Ordinance No. 309 violates due process of law in that it restricts the reasonable use of property in arbitrary and discriminatory fashion.'

The court thereupon issued its peremptory writ restraining the justice court and the judge thereof from proceeding with the complaint on file charging Kelly with a violation of the ordinance, and this appeal followed.

In arguing for a reversal of the judgment appellant makes the following major contentions: (1) The ordinance is a valid exercise of the police power and does not deprive respondent of his property without due process of law; (2) The ordinance is not vague, indefinite, or uncertain within the constitutional requirement of due process of law; (3) The ordinance does not deny respondent equal protection of the law or constitute an invalid legislative classification.

In Miller v. Board of Public Works, 195 Cal. 477, at page 488, 234 P. 381, at page 384, 38 A.L.R. 1479, the court in sustaining the constitutionality of a zoning ordinance stated:

'Much is said about the constitutional guaranties attaching to the ownership of property in the individual. In this behalf it will be noted that:

"It is thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. Although one owns property, he may not do with it as he pleases, any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so also does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property compensation must be made. But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of the property for which compensation must be made.' Carter v. Harper, 182 Wis. 148, 196 N.W. 451; Chicago, B. & Q. R. Co. v. Illinois, supra [200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596].'

Every intendment is in favor of the validity of the zoning ordinance and the wisdom and the necessity of the ordinance are matter of legislative judgment Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 38 A.L.R. 1479; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 [185 Cal.App.2d 803] P.2d 34; Robinson v. City of Los Angeles, 146 Cal.App.2d 810, 817, 304 P.2d 814. We are satisfied that the ordinance is a valid exercise of the police power and does not deprive appellant of his property without due process of law.

We do not agree with the finding of the trial court and the contention of respondent that the ordinance 'is so vague and indefinite in its terms that reasonable men must guess as to its meaning and differ as to its application [and] * * * is not so clear and unambiguous that one does not have to speculate as to its meaning.' These findings cannot be sustained as a matter of law.

Due process of law requires that a statute be sufficiently definite and certain to inform those subject thereto what is required of them. Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859. In Smith v. Peterson, 131 Cal.App.2d 241, 280 P.2d 522, 49 A.L.R.2d 1194, it was held that the words 'excessive' or 'unusual' as used in the Vehicle Code, § 673, requiring that mufflers prevent any excessive or unusual noise, are sufficiently certain to inform persons of ordinary intelligence of the nature of the offense prohibited. Applicable rules of law pertaining to the requirements of certainty in legislative terms are well stated in the Smith case at pages 245-246 of 131 Cal.App.2d, at page 525 of 280 P.2d:

'It is well settled that a criminal statute which is so indefinite, vague and uncertain that the definition of the crime or standard of conduct connot be ascertained therefrom, is unconstitutional and void. However, there is a uniformity of opinion among the authorities that a statute will not be held void for uncertainty if any reasonable and practical construction can be given to its language. Nor does the fact that its meaning is difficult to ascertain or susceptible of different interpretations render the statute void. All presumptions and...