license required to operate sound truck or loud speaker in public place valid where evidence established that when permits were issued constant policing was required and policemen were required to leave their regular duties and that cost incurred by City was actually more than the cost of the license
How later courts described this case
- license required to operate sound truck or loud speaker in public place valid where evidence established that when permits were issued constant policing was required and policemen were required to leave their regular duties and that cost incurred by City was actually more than the cost of the license
- validated $25.00 per day amplifier fee
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Cohen:
In Saia v. People of State of New York, 334 U. S. 558 , 92 L. Ed. 1574 , 68 S. Ct. 1148 (1948), the United States Supreme Court in a five to four decision held the ordinance therein invalid because it failed to provide any standard or any other criteria for the chief of police in exercising his discretion in granting or refusing the permit, thereby making it unconstitutional on its face.
' Shortly thereafter, the United States Supreme Court had before it an ordinance which prohibited the use of sound trucks making “loud and raucous noises” on the public streets. It was upheld by the United States Supreme Court in Kovacs v. Cooper, 336 U. S. 77 , 93 L. Ed. 513 , 69 S. Ct. 448 (1949). Three of the majority upheld its constitutionality because the intent was to prevent “loud and raucous noises” from conflicting with the peace and quiet of the citizens and was not intended to suppress any individual’s right of free speech. One justice concurred because he thought *141 the United States Supreme Court could not devise terms on which the sound truck should be allowed to operate; another concurred holding that an absolute prohibition of sound equipment would be valid. The three dissenting justices were of the opinion that the Saia case governed and that the ordinance was unconstitutional.
I recognize that in matters such as this, one is required to balance the various community interests, but T am most mindful of the impact of the First Amendment of the Federal Constitution on this kind of a situation. I believe that the $25 a day license fee required in the instant ordinance is so burdensome that this ordinance is unconstitutional on its face. Bather than regulating the use of sound trucks for the interest of certain members of the community, it completely ignores the interest of other members of the community in having them and by the imposition of a burdensome license fee proscribes their use.
The fact that the City of Chester produced testimony to the effect that the $25 license fee did not cover the cost of enforcement of the ordinance is not material. The privilege of exercising a constitutional right should not be evaluated on a cost plus basis. Police power legislation is not designed to provide a profit for government. Here, the $25 a day license fee effectively deprives the defendant of his First Amendment guarantee, hampers the promotion and exchange of ideas, impinges on free discussion and restricts political activities and free elections.
It is distasteful to think that candidates for both high and low offices are required both to cater to the whims and caprice of the chief of police and to pay $25 a day in order to pursue their campaigns. My conclusion makes it unnecessary to discuss the other valid contentions of the appellant such as the scientific impossibility to comply with the ordinance (see 58 Tale *142 Law Journal 835 (1949)), or the discrimination of its enforcement, (see Yick Wo v. Hopkins, 118 U. S. 356 , 30 L. Ed. 220 , 6 S. Ct. 1064 (1886)).