People v. Amdur

• Decision Date: 23 February 1954
• Docket Number: Cr. A
• Citation: 123 Cal.App.2d Supp. 951,267 P.2d 445
• Court: California Superior Court
• Parties: 123 Cal.App.2d Supp. 951 PEOPLE v. AMDUR. 28. Appellate Department, Superior Court, Alameda County, California

Page 445

267 P.2d 445

123 Cal.App.2d Supp. 951

PEOPLE v. AMDUR.

Cr. A. 28.

Appellate Department, Superior Court, Alameda County, California.

Feb. 23, 1954.

Lawrence Speiser, Staff Counsel, American Civil Liberties Union, San Francisco, for appellant.

J. F. Coakley, Dist. Atty. of Alameda County, Roy G. Pucci, Deputy Dist. Atty. of Alameda County, Oakland, Fred C. Hutchinson, City Atty., Robert T. Anderson, Asst. City Atty., Berkeley, for respondent.

WAGLER, Presiding Judge.

Defendant and appellant, Reuel S. Amdur, was convicted of a violation of Section 12.1 of Ordinance No. 3262-N.S. of the City of Berkeley, in that said defendant on or about the sixth day of February, 1953, 'unlawfully placed and caused to be placed on a sidewalk a table which obstructed, restricted, and prevented the use of a portion of said sidewalk'.

On this appeal appellant asserts (1) that the evidence is insufficient to sustain the judgment; (2) that the ordinance is unconstitutional as written; (3) that the ordinance is unconstitutional as applied; and (4) that the rejection of certain proffered evidence was prejudicial error. Appellant raised the question of constitutionality in the Municipal Court at the outset of the trial by motion to dismiss, and after his conviction by motion in arrest of judgment.

The ordinance in question provides that 'It shall be unlawful for any person to place or cause to be placed anywhere upon any sidewalk or roadway, anything which shall obstruct, restrict or prevent the use of any portion of such sidewalk or roadway; provided that this section shall not apply to the article or things listed in Section 12.1-a to and including 12.1-0'. ¹ Here follows fifteen exceptions covering: (a) Goods in Transit; (b) Construction Materials and Barricades; (c) Trees and Shrubs; (d) Poles, Hydrants, Signs, etc.; (e) Bicycle Racks; (f) Gasoline Pumps; (g) Benches; (h) Mail Boxes and Armed Forces Recruiting Signs; (i) Taxicab Telephones; (j) Newspaper Racks and Newspapers; (k) Periodicals and Periodical Racks; (l) Vending Machines; (m) Milk Cases and Boxes; (n) Tables for Registration of Voters; '(o) Temporary Uses Authorized by Council. Anything for temporary use at such locations and under such conditions as may be authorized by resolution of the Council.'

It is conceded that no rules or regulations have been formulated by anyone for the guidance of those administering Section 12.1-o of the ordinance.

On January 30 appellant filed with the City Clerk of the City of Berkeley a written request reading as follows:

'January 30, 1953.

'To the Berkeley City Council:

'I would like to set up a table at Telegraph Avenue and Allston Way (Sather Gate) on February 4 and 6, 1953, between the hours of 10:00 A. M. and 2:00 P. M. for the purpose of distributing literature pointing out the basically evil nature of the State as demonstrated in the death sentence meted out to the Rosenbergs, and for the purpose of collecting signatures on a petition opposing murder, whether it be in the name of the State or in the name of the murderer.

'If the Rosenberg case is by this time a fait accompli, then I would like to set up a table at the same place and time for the purpose of facilitating distribution of literature denouncing the notorious Smith Act [18 U.S.C.A. § 2385] and the prosecution of the communist party leaders under the Smith Act.

'(s) Reuel S. Amdur

'1607 Visalia Avenue

'Berkeley 7, California'

Thereafter, as was the practice, appellant's request was presented to the Chief of Police of the City of Berkeley, who on February 2 issued the following memorandum to John D. Phillips, City Manager:

'Subject: Request from Reuel S. Amdur, 1607 Visalia Avenue for Permission to Set Up Table at Telegraph and Allston, February 4 and 6, 1953, Between 10:00 A.M. and 2:00 P.M. to Distribute Literature Relative to the Rosenbergs or to Distribute Literature Denouncing the Smith Act.

'This department has no objection to establishment of a table on the sidewalk at the location and under the conditions indicated in the letter signed by Reuel S. Amdur.

'(s) J. D. Holstrom

'Chief of Police'

Appellant's request and the memorandum from the Chief of Police were presented to the City Council at its regular meeting on February 3, 1953. After discussion, his application was by unanimous vote 'referred to the file'.

On February 6, 1953, at about 11:35 A.M., appellant was observed passing out leaflets while standing in front of a normal size card table which had been placed on the sidewalk near Sather Gate, the southerly entrance to the University of California. The University was in recess between semesters on the day in question, foot traffic was comparatively light, and the table caused no appreciable obstruction to traffic, although some pedestrians did find it necessary to change their course of travel to 'deviate around the card table', and in a few instances there were minor physical collisions between pedestrians as a result of walking around the table.

When asked by a police officer whether he had a permit for the table, defendant replied that he did not. When asked further if he had applied for a permit, he replied, 'For all intents and purposes a permit was denied by the City Council when the first application was denied, and a second one was filed'. ² When told that if he did not remove the table he would be arrested, appellant stated, 'Go ahead and arrest me. I am a Watsonian anarchist and will stand on my constitutional rights.' Appellant was later arrested, tried, convicted and ordered to pay a fine of Twenty-Five Dollars, or in lieu thereof that he 'be imprisoned in the Alameda County jail at the rate of one day for each Five Dollars unpaid until said fine is satisfied'.

Proof of the above facts which were without essential conflict would, of course, be sufficient to support the judgment of conviction, since the authority of the City of Berkeley to adopt regulations for the promotion of the health, safety and welfare of the people is established by Sections 6 and 11 of Article XI of the Constitution of the State of California, and by Section 49 of the Charter of said city.

At the outset it should be pointed out that the streets and sidewalks of a city are designated primarily for travel and for the transportation of goods to and fro thereon. The public is entitled to the free and unobstructed use of the entire streets and sidewalks for the purposes of travel, subject only to the reasonable and proper control of the municipality. Vanderhurst v. Tholcke, 113 Cal. 147, 45 P. 266; 36 L.R.A. 267; Hill v. City of Oxnard, 46 Cal.App. 624, 189 P. 825; Laura Vincent Co. v. City of Selma, 43 Cal.App.2d 473, 111 P.2d 17; 25 Am.Jur. 566.

The Legislature of the State has declared that the unlawful obstruction of the free passage or use in the customary manner of any public street or highway shall be a public nuisance. Civil Code, §§ 3479, 3480; Penal Code, § 370. This does not mean, however, that it is unlawful for both persons and property to be temporarily at rest upon a public street. Obstructions of a temporary nature, which are incidental to the use for which the street is primarily intended and which do not unduly and unreasonably interfere with the rights of the public, are permissible, 40 C.J.S., Highways, § 218, p. 213, since such temporary appropriation of the street is justified upon the ground of necessity, and a license for it may be implied in the absence of an ordinance expressly conferring the right. 19 Cal.Jur. 112; Fisher v. Los Angeles Pacific Co., 21 Cal.App. 677, 132 P. 767; Searcy v. Noll Welty Lumber Co., 295 Mo. 188, 243 S.W. 318, 23 A.L.R. 816.

Even obstructions which are incidental to the primarily intended use of the street are subject to reasonable regulation by the municipality, since 'municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated.' Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 150, 84 L.Ed. 155. See also: Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; In re Bodkin, 86 Cal.App.2d 208, 194 P.2d 588; Pezold v. Amalgamated Meat, 54 Cal.App.2d 120, 128 P.2d 611.

Any obstruction not falling within the above category or properly authorized by ordinance or otherwise constitutes a public nuisance per se. San Diego v. Southern California Telephone Company, 92 Cal.App.2d 793, 208 P.2d 27; Irish v. Hahn, 208 Cal. 339, 281 P. 385, 66 A.L.R. 1382; Western States, etc., Co. v. Bayside Lumber Co., 182 Cal. 140, 187 P. 735; Hitch v. Scholle, 180 Cal. 467, 181 P. 657; Strong v. Sullivan, 180 Cal. 331, 181 P. 59, 4 A.L.R. 343; San Francisco v. Buckman, 111 Cal. 25, 43 P. 396, 25 Am.Jur. 566. This is true even though the obstruction does not work a positive inconvenience to anyone. 25 Am.Jur. Sec. 273, page 566. This rule extends to sidewalks which are a part of the street. Ex parte Taylor, 87 Cal. 91, 25 P. 258.

That a table of the type here involved placed upon a public sidewalk constitutes an obstruction within the meaning of the statute and the applicable rules of law there can be no question. There can also be little doubt that such a use of the sidewalk is not a use incidental to the primary use for which the sidewalk is intended, and since appellant concedes that the City Council had not authorized the obstruction, we must conclude that under such circumstances it constituted a public nuisance. In fact, Section 12.2 of the same ordinance which was received in evidence without objection specifically provides that 'anything placed or permitted to remain upon any sidewalk or roadway in violation of Section 12.1 of this ordinance, is hereby declared to constitute a nuisance and the Police Department is hereby authorized and empowered to abate such nuisance by removing the same to the custodian of lost property in the Police...