People v. Van Wong

• Decision Date: 01 December 1958
• Docket Number: Cr. 3880
• Citation: 332 P.2d 872,165 Cal.App.2d Supp. 821
• Parties: 165 Cal.App.2d Supp. 821 PEOPLE of the State of California, Plaintiff and Appellant, v. Eugene VAN WONG, Defendant and Respondent. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 872

332 P.2d 872

165 Cal.App.2d Supp. 821

PEOPLE of the State of California, Plaintiff and Appellant, v. Eugene VAN WONG, Defendant and Respondent.

Cr. 3880.

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

Dec. 1, 1958.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran Deputy City Atty., Los Angeles, for appellant.

George Chatterton, City Public Defender, Los Angeles, for respondent.

DAVID, Judge.

Sec. 42.03 of Los Angeles Ordinance No. 77,000, the Municipal Code, was held invalid by the trial judge, who sustained a demurrer to the complaint against the defendant and dismissed it. The complaint charged the defendant with sale of and offer to sell a ticket admitting one to a Los Angeles Coliseum event, conjoining in the charges all the circumstances proscribed within 250 feet of the Los Angeles Memorial Coliseum 'upon and along a public street, sidewalk, alley, and publicly owned park and place.'

(1) It is asserted that this is a valid police regulation to prohibit the practice of ticket scalping. On its face, the ordinance does not purport to do so:

(a) It makes no distinction between sales of tickets above the quoted price, and those below it.

(b) It makes no distinction between the private individual who passes his 'spare ticket' to a friend and receives the price while on public property, and those who are doing business of selling tickets.

Appellant's counsel urges that under selective enforcement, this would never happen. It is damning that it could. 'It does not answer the charge that the act in question is unconstitutional to say that a person clothed with such power may not see fit to use the power. The rule in determining whether the act is in conflict with constitutional guaranties is whether or not the act is broad enough to authorize such unconstitutional act.' In re Application of Blanc, 1927, 81 Cal.App. 105, 113, 252 P. 1053, 1057, quoting People v. Pace, 1925, 73 Cal.App. 548, 560, 238 P. 1089.

(c) It leaves legal ticket sales or scalping at every club, newsstand, pool hall or other place in the city, and picks out the 250 feet zone for application of the ordinance. In this latter aspect, it is clearly invalid: cf. Justesen's Food Stores, Inc., v. City of Tulare, 1928, 12 Cal.2d 324, 84 P.2d 140.

(d) The control of amusement ticket sales or resales has been held not to fall within the legitimate scope of municifall police power, in the State of California. Counsel acknowledge the holdings and dicta of Ex parte Quarg, 1906, 149 Cal. 79, 84 P. 766, 5 L.R.A.,N.S., 183, and In re Dees, 1920, 46 Cal.App. 656, 189 P. 1050 (to which may be added Tyson & Bro. etc. v. Banton, 1926, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718; and later California cases on the basic private right involved: Pollak v. Staunton, 1930, 210 Cal. 656, 293 P. 26; People v. Lesser, 1932, 123 Cal.App. 489, 493, 11 P.2d 668; People v. Pace, supra, 73 Cal.App. 548, 238 P. 1089; People v. Davenport, 1937, 21 Cal.App.2d 292, 297, 69 P.2d 862.

Since the case of Ex parte Quarg, supra, 149 Cal. 79, 84 P. 766, 5 L.R.A., N.S., 183, it is true that the limits of the police power over the general welfare in price-fixing etc. have been redefined. Max Factor & Co. v. Kunsman, 1935, 5 Cal.2d 446, 55 P.2d 177, affirmed 299 U.S. 198, 57 S.Ct. 147, 81 L.Ed. 122; Clemons v. City of Los Angeles, 1950, 36 Cal.2d 95, 102, 222 P.2d 439. But in all of the controversies engendered, while Ex parte Quarg, supra, 149 Cal. 79, 84 P. 766, 5 L.R.A.,N.S., 183, has been frequently cited, it has never been overruled. The principles here involved are well-stated in State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 1953, 40 Cal.2d 436, 254 P.2d 29, both as to the police power, legislative limits, and reasonableness of restrictions.

(2) Appellant's counsel conceding the force of the California decisions has asserted that the ordinance in question was drawn to accomplish the same purpose by emphasizing the municipal control over the place of sale.

If the ordinance is to be sustained, it must be upon the ground that sale is not prohibited absolutely, but that the place of sale is reasonably restricted. Cf. Hart v. City of Beverly Hills, 1938, 11 Cal.2d 343, 345, 350, 79 P.2d 1080.

It is...