Kovacs v. Cooper

• Decision Date: 30 December 1946
• Docket Number: No. 258.,258.
• Citation: 50 A.2d 451,135 N.J.L. 64
• Parties: KOVACS v. COOPER, Judge.
• Court: New Jersey Supreme Court

135 N.J.L. 64

50 A.2d 451

KOVACS

v.COOPER, Judge.

No. 258.

Supreme Court of New Jersey.

Dec. 30, 1946.

Charles Kovacs was convicted of violating a city ordinance making the operation of a sound truck with loud speaker or sound amplifier, on public streets, unlawful and he brings certiorari.

Judgment affirmed.

PERSKIE, J., dissenting.

October term 1946, before BODINE, PERSKIE, and WACHENFELD, JJ.

George Pellettieri, of Trenton, for prosecutor.

Louis Josephson and John A. Brieger, both of Trenton, for respondent.

WACHENFELD, Justice.

This writ of certiorari brings up for review prosecutor's conviction by the Police Court of the City of Trenton upon a complaint charging him with violating the fourth section of an ordinance of the City of Trenton entitled ‘An Ordinance to Prevent the Making of Unnecessary Noise.’

The facts are undisputed that on August 22, 1946, prosecutor set an amplifier on a truck and while driven by another on South Stockton Street in the City of Trenton, first played music and then spoke through the sound amplifier. There is no testimony in the record to indicate the purpose or the subject of this speech, although prosecutor's brief states he was using the sound apparatus to comment on a labor dispute then in progress in Trenton. He was tried and convicted in the Trenton Police Court on the following day upon a complaint charging a violation of Section 4 of the aforesaid ordinance and fined $50. in accordance with Section 6 thereof.

Section 4 of the ordinance reads as follows:

‘That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned.’

Section 6 of the said ordinance, dealing with the penalty provisions, reads as follows:

‘That any person, firm or corporation who shall violate any of the provisions of this ordinance shall, upon conviction thereof, be punished by a fine of not to exceed two hundred ($200) dollars, or by imprisonment in the County Jail for a period of not to exceed ninety (90) days, or by both such fine and imprisonment, and each violation of any of the provisions of this ordinance, and each day the same is violated, shall be deemed and taken to be a separate and distinct offense.’

The sole question presented to this court by the prosecutor is the constitutionality of the ordinance. Two grounds on which it is attacked are, first, that it deprives the prosecutor of his rights to freedom of speech and freedom to communicate information and opinions to others and freedom of assembly in violation of Article 1, paragraph 5, and Article 1, Paragraph 18, of the New Jersey Constitution, N.J.S.A., and Section 1 of the Fourteenth Amendment of the United States Constitution; second, that the provisions of the ordinance are so obscure, vague and indefinite as to make them impossible of reasonable interpretation and, therefore, unconstitutional as violative of Article 1, paragraph 1, of the Constitution of New Jersey and Section 1 of the Fourteenth Amendment of the Constitution of the United States.

The relevant provisions of the ordinance apply only to (1) vehicles (2) containing an instrument in the nature of a sound amplifier or any other instrument emitting loud and raucous noises and (3) such vehicle operated or standing upon the public streets, alleys or thoroughfares of the city. The problem raised is novel in this jurisdiction. The court in Evening Times Printing & Publishing Company v. American Newspaper Guild, et al., 124 N.J.Eq. 71, 199 A. 598, raised but passed over the question of the legality per se of the use of sound trucks with broadcasting amplifiers. In that case, it should be noted, there was no municipal ordinance involved and the complainant only sought to enjoin misrepresentations and not all broadcasting through the amplifier.

The purpose of the legislation is clear. The conduct proscribed by this ordinance constitutes a potential nuisance. The attention of motorists is diverted from the efficient operation of their vehicles while that of pedestrians is almost involuntarily attracted to the source of the noise. Thus new traffic hazards are added to the everincreasing dangers of city thoroughfares. Hence, the purpose of the ordinance is founded in reason.

The freedoms of expression and assembly of the prosecutor may have been prohibited in this respect, but the ordinance leaves untouched the right of the prosecutor to express his views orally without the aid of an amplifier.

While the freedoms of speech and assembly are enunciated and preserved by the New Jersey and United States Constitutions, these freedoms are not absolute but may be curtailed under a reasonable exercise of the police power where the public health, safety and general welfare of the municipality demand. In Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 765, 85 L.Ed. 1049, 133 A.L.R. 1396, the United States Supreme Court considered the constitutionality of a state statute prohibiting a ‘parade or procession’ upon a public street without a special license. In upholding the validity of the statute the court pointed out the position of civil liberties in organized society and said:

‘Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the...