Martin, Application of

• Decision Date: 08 October 1963
• Docket Number: Cr. 9354
• Citation: 221 Cal.App.2d 14,34 Cal.Rptr. 299
• Court: California Court of Appeals Court of Appeals
• Parties: Application of Charles M. MARTIN for a Writ of Habeas Corpus.

Page 299

34 Cal.Rptr. 299

221 Cal.App.2d 14

Application of Charles M. MARTIN for a Writ of Habeas Corpus.

Cr. 9354.

District Court of Appeal, Second District, Division 2, California.

Oct. 8, 1963.

Arthur S. Black, Los Angeles, for petitioner.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Frank D. Wagner, Deputy City Atty., for respondent, Chief of Police.

ASHBURN, Chief Justice.

Claiming to be unlawfully restrained by the Chief of Police of the City of Los Angeles under a charge of violating § 52.51 of the Los Angeles Municipal Code, petitioner Martin seeks a release upon habeas corpus.

The contention is that said section is void because the field has been preempted by state legislation.

Sections 52.51 and 52.52 of said Municipal Code read as follows: Sec. 52.51. 'No person shall wear any mask or any other personal disguise, whether complete or partial, upon any public street, sidewalk or park, without a permit to do so, issued in accordance with Section 52.52 of this Code.' Sec. 52.52. 'Any person desiring to wear any mask or other personal disguise, whether complete or partial, upon any public street, sidewalk or park, shall file a written application with the Board, which application shall state:

'(a) The name and address of the applicant;

'(b) The purposes for which the permit is desired;

'(c) Any additional facts which may enlighten said Board with respect to the moral character of the applicant and the occasion upon which it is desired to wear such mask or disguise.

'If the Board becomes satisfied that the applicant is a person of good moral character and that the public safety and welfare will not be jeopardized by the granting of said application, a permit shall be granted. No permit issued in accordance with the provisions of this section shall be valid for a period of more than thirty (30) days.'

Section 185, Penal Code, which petitioner claims to have occupied the field, says: 'It shall be unlawful any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of:

'One--Evading or escaping discovery, recognition, or identification in the commission of any public offense.

'Two--Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor.'

Section 650a, Penal Code, says: 'It is a misdemeanor for any person, either alone or in company with others, to appear on any street or highway, or in other public places or any place open to view by the general public, with his face partially or completely concealed by means of a mask or other regalia or paraphernalia, with intent thereby to conceal his identity. This section does not prohibit the wearing of such means of concealment in good faith for the purposes of amusement, entertainment or in compliance with any public health order.'

In re Lane, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897, In re Moss, 58 Cal.2d 117, 23 Cal.Rptr. 361, 373 P.2d 425, In re Koehne, 59 A.C. 668, 30 Cal.Rptr. 809, 381 P.2d 633, In re Zorn, 59 A.C. 672, 30 Cal.Rptr. 811, 381 P.2d 635, and People v. Lopez, 59 A.C. 675, 30 Cal.Rptr. 813, 381 P.2d 637, state the governing principles here applicable. Pertinent extracts are the following: 'A municipal ordinance is invalid if it attempts to impose additional requirements in a field that has been preempted by the general law. (In re Moss, 58 Cal.2d 117, 118 , 23 Cal.Rptr. 361, 373 P.2d 425.)

'Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. (In re Moss, supra, [58 Cal.2d] at p. 118 , 23 Cal.Rptr. at p. 361, 373 P.2d at p. 426.)' (In re Koehne, supra, 59 A.C. 668, 670, 30 Cal.Rptr. 809, 810, 381 P.2d 633, 634.)

'A municipal ordinance is invalid if it attempts to impose additional requirements in a field that has been preempted by the general law. * * * Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.' (In re Zorn, supra, 59 A.C. 672, 673, 30 Cal.Rptr. 811, 812, 381 P.2d 635, 636.)

As defined by the cases the constitutional phrase 'conflict with general laws' (art. XI, § 11) may arise in several different ways. It may grow out of the exact language of the state and municipal laws (see concurring opinion of Mr. Chief Justice Gibson in In re Lane, supra, 58 Cal.2d 99, at p. 106, 22 Cal.Rptr. 857, at p. 861, 372 P.2d 897, at p. 901; dissent of Mr. Justice Dooling in same case 58 Cal.2d at page 112, 22 Cal.Rptr. at page 865, 372 P.2d at page 905; concurrence of Mr. Justice White in In re Moss, supra, 58 Cal.2d 117, at p. 121, 23 Cal.Rptr. 361, at p. 363, 373 P.2d 425, at p. 427; People v. Lopez, supra, 59 A.C. 675, 676, 30 Cal.Rptr. 813, 814, 381 P.2d 637, 638) or from a local attempt 'to impose additional requirements in a field that is preempted by the general law' (Mr. Justice McComb's prevailing opinions in Lane case 58 Cal.2d at p. 102, 22 Cal.Rptr. at p. 859, 372 P.2d at p. 899, and Moss case 58 Cal.2d at p. 118, 23 Cal.Rptr. at pp. 361-362, 373 P.2d at pp. 425-426) or from the state's adoption of 'a general scheme for the regulation of a particular subject' (In re Lane, supra, 58 Cal.2d at p. 102, 22 Cal.Rptr. at p. 859, 372 P.2d at p. 899; In re Moss, supra, 58 Cal.2d at p. 118, 23 Cal.Rptr. at pp. 361-362, 373 P.2d at pp. 425-426). But if the state's preemption of the field or subject is not complete, local supplemental legislation is not deemed conflicting to the extent that it covers phases of the subject which have not been covered by the state law. (In re Lane, supra, 58 Cal.2d at p. 109, 22 Cal.Rptr. at p. 863, 372 P.2d at p. 903; In re Moss, supra, 58 Cal.2d at p. 118, 23 Cal.Rptr. at pp. 361-362, 373 P.2d at pp. 425-426; Pipoly v. Benson, 20 Cal.2d 366, 371, 125 P.2d 482, 147 A.L.R. 515.)

It appears from the decisions that the general scheme for the regulation of a particular subject may be found in a single comprehensive statute such as the Vehicle Code, or in a section of the Penal Code...