Whitney v. Municipal Court of City and County of San Francisco

CourtCalifornia Court of Appeals
Citation22 Cal.Rptr. 545
Decision Date01 June 1962
PartiesJerry T. WHITNEY, Daniel F. Halverson and Emma A. Glasgow, Petitioners and Respondents, v. The MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent and Appellant. Civ. 19783.

Stanley Mosk, Atty. Gen., John S. McInerny, Albert W. Harris, Jr., Arlo E. Smith, Deputy Attys. Gen., San Francisco, for appellant.

Kenneth C. Zwerin, San Francisco, for respondents. with the Fourteenth Amendment. U.S.C.A.Const.

BRAY, Presiding Justice.

Respondents petitioned the superior court for a writ of prohibition to prohibit appellant, the San Francisco Municipal Court, from proceeding further to try respondents on a charge of violating section 741, Municipal Code, also known as the San Francisco Police Code. Appellant appeals on a clerk's transcript from the order granting such writ. 1


It is conceded by the parties that because of the limited form of petition, neither the superior court was, not is this court, concerned with the application of section 741 to the respondents, but only with the question of whether or not the section is unconstitutional on its face.

1. Does prohibition lie?

2. Is the ordinance void for uncertainty?

3. Is the objectionable language separable?

4. Is the ordinance void for lack of an express requirement of scienter?


Respondents' petition in the superior court for writ of prohibition alleged that they were charged in the municipal court with a violation of section 741, Municipal Code; that on arraignment they filed a written demurrer to the complaint alleging that it did not state facts sufficient to constitute a public offense; that the municipal court overruled the demurrer, and, unless restrained, will proceed with trial; that section 741 is void for uncertainty and in violation of the due process clause of the Fourteenth Amendment, and of the First Amendment to the Constitution of the United States. 2 Appellant demurred to the petition for the writ of prohibition on the ground that it did not state facts sufficient to constitute 'a cause of action.' The superior court overruled the demurrer and ordered the writ granted.


Prohibition is a proper remedy to be sought here. Respondents raised the question of jurisdiction in the municipal court. That court determined that it had jurisdiction. Respondents thereupon petitioned the superior court for a writ of prohibition.

'The constitutionality of a statute or ordinance may be tested by prohibition on the ground that invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case.' (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 462, 171 P.2d 8, 10.) That case points out that if there is a plain, speedy and adequate remedy in the ordinary course of law prohibition will not lie, and that trial and appeal may be adequate remedies under certain circumstances. It then said (pp. 465-466, 171 P. at p. 12): 'In addition, habeas corpus may be used to test the constitutionality of a statute (Ex parte Bell, 19 Cal.2d 488, 122 P.2d 22), and the availability of that remedy has been held to be a complete bar to the issuance of prohibition. (Leach v. Superior Court, 1932, 215 Cal. 531, 12 P.2d 1.) But where, as here, the defendant cannot use habeas corpus because he is not being deprived of his liberty, he should not be refused prohibition, while awaiting trial, solely on the ground that habeas corpus would be available if he would submit to imprisonment.' (Emphasis added.) It then refers to the fact that in some cases remedies of trial and appeal were held adequate while in other cases they were held inadequate. It then stated (p. 467, 171 P. at p. 13): 'A reviewing court, in order to prevent a failure of justice, has discretion in accordance with established legal principles and practice, to determine the circumstances which justify the use of prohibition to restrain a lower tribunal from acting without or in excess of its jurisdiction. And in the exercise of that discretion it may take into consideration the desirability of the prompt settlement of an important jurisdictional question so that a multiplicity of void proceedings in other cases will be prevented.'

Rescue Army, in stating that prohibition should not be refused solely on the ground that habeas corpus would be available if the defendant would place himself in a position where habeas corpus might apply, shows that the Supreme Court, in spite of Leach v. Superior Court (1932) 215 Cal. 531, 12 P.2d 1, considered that it was still in the discretion of the reviewing court to determine whether in the interests of justice prohibition should issue rather than to leave the defendant to the remedies of trial and appeal or habeas corpus. Certainly the 'desirability of the prompt settlement of an important jurisdictional question' applies here.

In Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 46, p. 46, 324 P.2d 990, p. 995 we said, without regard to whether or not habeas corpus was available: 'We entertain no doubt that prohibition is a proper remedy. The respondent court has already determined, erroneously, that it has jurisdiction and will proceed with the trial unless restrained. The petitioner alleges and respondent admits that the respondent court 'threatens to, and will unless prohibited by this [district] court [of appeal], proceed with the trial of petitioner upon the charge of violating Section 290 of the Penal Code,' despite the fact that, as we have found, the complaint in question charges no public offense.' The fact that there we found that the defendant was entitled to the issuance of the writ while here we find that the respondents are not so entitled, does not affect the applicability of the proceeding. Under the circumstances of this case the superior court had the discretion mentioned in Rescue Army to determine, as it did, that the circumstances justified the consideration of the constitutionality of ordinance 741 on an application for writ of prohibition.


The burden is on respondents to show that the section cannot validly be applied in any way, that is, that the standards set out are void on their face. A statute or an ordinance cannot be held void for uncertainty if any reasonable and practical construction can be given its language. 3

Before examining the ordinance, it is well to look at the rules to be applied in construing it. 'While no one may be required at his peril to speculate as to the meaning of a penal statute, People v. McCaughan, * ---- Cal.App.2d ----, 306 P.2d

61, yet '[w]here a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced.' People v. Deibert, supra, 117 Cal.App.2d at page 418, 256 P.2d at page 360. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible, People v. Hallner, 43 Cal.2d 715, 720, 277 P.2d 393; People v. Kennedy, 21 Cal.App.2d 185, 193, 69 P.2d 224; moreover, a statute must be upheld unless its nullity clearly, positively and unmistakably appears. People v. Darby, 114 Cal.App.2d 412, 428, 250 P.2d 743. In determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them, the court must endeavor, if possible, to view the statute from the standpoint of a reasonable man who might be subject to its terms, Pacific Coast Dairy v. Police Court, supra, 214 Cal. at page 676, 8 P.2d 140, ; and the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Smith v. Peterson, 131 Cal.App.2d 241, 246, 280 P.2d 522, .' (In re Clark[e] (1957) 149 Cal.App.2d 802, 806-807, 309 P.2d 142, 146.)

One may consider the legislative intent, the statute or ordinance being interpreted in that light. If the language gives fair notice of practices to be avoided, the section will be upheld. (People v. Hallner (1954) 43 Cal.2d 715, 277 P.2d 393; In re Clarke, supra, 149 Cal.App.2d 802, 309 P.2d 142.) Section 741 is an obscenity ordinance and should be construed as such.

In considering the language employed in the section, it is proper to recognize long usage, or the common law meaning even though the definition may have undergone a slight degree of change. (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 216 P.2d 859; People v. McCaughan (1957) 49 Cal.2d 409, 414, 317 P.2d 974; Sultan Turkish Bath v. Police Comrs. (1959) 169 Cal.App.2d 188, 337 P.2d 203.) It is important to recognize that a statute is not required to '* * * have that degree of exactness which inheres in a mathematical theorem. * * *" (Kelly v. Mahoney (1960) 185 Cal.App.2d 799, 803, 8 Cal.Rptr. 521, 524.) Due process of law requires the statute to be sufficiently definite and certain to inform those subject thereto what is required of them. (Kelly v. Mahoney, supra; In re Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116.)

The ordinance under consideration reads as follows (the bracketed numbers are inserted before each of the standards for purposes of discussion and do not appear in the ordinance): 'SEC. 741. Indecent, Etc., Motion Picture Exhibitions, Etc., Prohibited. It shall be unlawful for any person, firm, association or corporation to hold, conduct or carry on or to cause, or permit to be held, conducted or carried on, any motion picture exhibition, or entertainment of any sort which is offensive to decency, or which excites vicious or lewd thoughts or acts or creates acts of violence or excites...

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