People v. Plywood Mfg's of Cal.

• Decision Date: 21 November 1955
• Docket Number: Cr. 3284-3286,C,Cr. 3327
• Court: California Superior Court
• Parties: 137 Cal.App.2d Supp. 859 PEOPLE of the State of California, Plaintiff and Respondent, v. PLYWOOD MFG'S OF CALIFORNIA, etc., Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. SHELL OIL COMPANY, etc., Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. UNION OIL COMPANY OF CALIFORNIA, etc., Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. SOUTHERN CALIFORNIA EDISON COMPANY, etc., et al., Defendants and Appellants. r. 3303-3306, Appellate Department, Superior Court, Los Angeles County, California

Page 587

291 P.2d 587

137 Cal.App.2d Supp. 859

PEOPLE of the State of California, Plaintiff and Respondent, v. PLYWOOD MFG'S OF CALIFORNIA, etc., Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. SHELL OIL COMPANY, etc., Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. UNION OIL COMPANY OF CALIFORNIA, etc., Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. SOUTHERN CALIFORNIA EDISON COMPANY, etc., et al., Defendants and Appellants.

Cr. 3284-3286, Cr. 3303-3306, Cr. 3327.

Appellate Department, Superior Court, Los Angeles County, California.

Nov. 21, 1955.

Nos. 3284-3285.

Maurice J. Hindin, Los Angeles, for appellant.

S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for respondent.

Edmund G. Brown, Atty. Gen., of California, amicus curiae.

No. 3286.

McCutchen, Black, Harnagel & Greene, Los Angeles, for appellant.

S. Ernest Roll, Dist. Atty., Jere J. Sullivan, Robert Wheeler and Lewis Watnick, Deputy Dist. Attys., for respondent.

Edmund G. Brown, Atty. Gen. of California, amicus curiae.

Nos. 3303-3306.

L. A. Gibbons, Douglas Gregg, A. Andrew Hauk, Macdonald & Halsted, Los Angeles, for appellant.

Roger Arnebergh, City Atty., Donald M. Redwine, Asst. City Atty., Philip E. Grey, Deputy City Atty., Los Angeles, for respondent.

Edmund G. Brown, Atty. Gen., and County Counsel, amici curiae.

No. 3327.

Bruce Renwick, C. Robert Simpson, Jr., and John M. Hall, Los Angeles, for appellants.

S. Ernest Roll, Dist. Atty., Jere J. Sullivan, Fred N. Whichello and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for respondent.

Edmund G. Brown, Atty. Gen., amicus curiae.

BISHOP, Acting Presiding Judge.

Each of these cases involves one or more charges, and convictions, of 'smog' violation. We have concluded, without any misgivings, that the legislation upon which the several complaints are based is, on its face, constitutional and enforceable. Because we anticipate that the one of the above cases which we find it necessary to reverse may be retried, and because further prosecutions of a like nature will doubtless be undertaken, we are deeming it advisable to express some of our conclusions more fully than we otherwise would do. Even so, we are not undertaking to comment on every contention made by each appellant. Our silence on a proposition is not a good basis for an inference that we have overlooked it.

As a part of the public campaign against 'smog,' the legislature added to the Health and Safety Code sections 24198-24341, constituting Chapter 2 of the 20th division. Section 24208 declares: 'As used in this chapter, 'air contaminant' includes smoke, charred paper, dust, soot, grime, carbon, noxious acids, fumes, gases, odors, or particulate matter, or any combination thereof.' Section 24242 provides: 'A person shall not discharge into the atmosphere from any single source of emission whatsoever any air contaminant for a period or periods aggregating more than three minutes in any one hour which is: (a) As dark or darker in shade as that designated as No. 2 on the Ringelmann Chart, as published by the United States Bureau of Mines, or (b) Of such opacity as to obscure an observer's view to a degree equal to or greater than does smoke described in subsection (a) of this section.' For the purposes of contrast only, we note the provisions of section 24243: 'A person shall not discharge from any source whatsoever such quantities of air contaminants or other material which cause injury, detriment, nuisance or annoyance to any considerable number of persons or to the public or which endanger the comfort, repose, health or safety of any such persons or the public or which cause or have a natural tendency to cause injury or damage to business or property.' Each charge found in the cases we are considering was based on section 24242, so that the meaning and constitutionality of section 24243 are not presently at issue. As no question has arisen about the requirements that the contaminant must come from one source of emission, and continue for three minutes in an hour, we shall, usually, treat them as implicit in any situation, without express reference to them.

The first question to engage our attention arises out of the contention that the terms employed in the provisions of section 24242 render the section unconstitutionally indefinite. We find this not to be so. A statute is to be interpreted, if it can be done without violence to its language, so as to avoid rendering it unconstitutional. Palermo v. Stockton Theaters, Inc., 1948, 32 Cal.2d 53, 60, 195 P.2d 1, 5. Another rule of construction is that a statute shall be read in the light of the problem that it was designed to solve. Wotton v. Bush, 1953, 41 Cal.2d 460, 467, 261 P.2d 256, 260.

Without laboring the point, we have concluded that the adjective 'noxious,' as used in section 24208, must be understood as applying to fumes, gases and odors, as well as to 'acids,' the word that immediately follows it. It will be noted that 'noxious' does not apply to 'smoke' and other substances that appear in the section before it does.

It is not every contaminant that section 24242 prohibits. To run afoul of the statute the contaminant must have one or both of these characteristics: (a) it must be as dark or darker in shade than shade No. 2 of the Ringelmann Chart, or (b) it must have an opacity that obscures 'an observer's view to a degree equal to or greater than does smoke described in subsection (a).' With respect to subdivision (a), we have heretofore held, in People v. International Steel Corp., 1951, 102 Cal.App.2d Supp. 935, 226 P.2d 587, respecting a charge of discharging smoke, that the standard made use of in subsection (a) is sufficiently definite to satisfy due process. We see no reason to depart from this conclusion. In proving a violation, a witness may testify although he did not have a Ringelmann Chart actually in the field with him at the time he made his observations. One does not have to have a color chart in his hands to recognize a red flower, a blue sky, or a black bird. The question is one of credibility, not competency. Nor do we see any difficulty arising from the fact that a plume of smoke, for example, may appear less dark than Ringelmann No. 2 from one position, but darker than Ringelmann No. 2 from another viewpoint. If the contaminant has the substance that, fairly viewed from any position, gives it a shade as dark or darker than Ringelmann No. 2, it is condemned, no matter how light in color it may look to someone situated at another vantage point.

Subdivision (a) only begins to solve the problem of the discharge of contaminants into the air; it does not touch smoke and other substances too light in shade to come up to Ringelmann No. 2. They may be so substantial in nature, however, that they make it impossible to see an object on the other side. We have all seen very white smoke that shut out the view completely. Again, they may obscure the view to a lesser degree than totality. We interpret 'opacity' as used in subdivision (b) as meaning 'want of transparency.' It is so defined in the Century Dictionary and in Webster's New International Dictionary 2d ed. A substance is transparent, on the other hand, if it has 'the property of transmitting rays of light, so that bodies can be seen through--opposed to opaque,' to again quote from Webster's. We may, therefore, express the test of subdivision (b) in simple terms; it condemns smoke or any other contaminant that is at least as hard to see through as is smoke which is as dark or darker than Ringelmann No. 2. There is nothing mystic or incomprehensible about such a statement.

There is no unconstitutional uncertainty introduced by the reference to the 'observer.' Subsection (a) makes no mention of an observer, but, we inquire, how is the comparison of any smoke with the Ringelmann Chart to be made? Obviously by a person who is looking at the chart, or has looked at it until he knows its gradations, and compares the shade of the smoke before him with that of the chart. The extent to which smoke or any other contaminant obscures the view, which is but another way of saying, the extent to which it is opaque, may be determined by observation. To have observation, you must have an observer. Surely one who is arguing that a statute should give the common man a standard by which he can judge whether he is violating the law, will not insist upon a test that only a scientist with expensive equipment can make.

The further contention is made that section 24242 is unconstitutional because the ordinary person, having no special training, will not be able to tell whether his smoke is as dark as Ringelmann No. 2, or whether its opacity equals that of smoke that matches Ringelmann No. 2. A moment's reflection detects the flaws in such an argument. A statute is invalid if its terms leave that which it attempts to control shrouded in uncertainty, but a statute, which declares an act, identified with certainty, to be unlawful, is not rendered unconstitutional because the act, as a fact, may not be readily identifiable by the common man as that forbidden by the statute. One illustration will suffice. Section 20703 of the Health and Safety Code ¹ states with definiteness what are 'poisons,' including, among other things, arsenic compounds. Section 20751 ² of the same code declares it to be unlawful 'for any person to vend, sell [or] give away * * * any poisons * * *' unless a poison label is used. The ordinary person does not have the learning to enable him to tell an arsenic compound from a harmless drug. Obviously the prevailing ignorance as to poisons and drugs does not render section 20751 unconstitutional.

The Ringelmann Chart has, in addition to the varying lines described in People v. International Steel Corp., supra, the ...