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COMMONWEALTH v. GEUSS ET AL. (11/14/50)

November 14, 1950

COMMONWEALTH
v.
GEUSS ET AL.



COUNSEL

Harold Mayberry, Allentown, Hayden C. Covington, Brooklyn, N. Y., for appellants.

Edwin L. Kohler, City Solicitor, Joseph B. Walker, Assistant City Solicitor, Allentown, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Dithrich

[ 168 Pa. Super. Page 23]

DITHRICH, Judge.

This appeal involves the validity of an ordinance of the City of Allentown regulating the use of sound trucks. The ordinance defines a sound truck as 'any motor vehicle * * * having mounted thereon, or attached thereto, any sound amplifying equipment.' It is drawn in conformity with the model ordinance, regulating and prohibiting certain uses of sound trucks, adopted by the National Institute of Municipal Law Officers, hereinafter referred to as NIMLO (Report No. 123, 1948).

The principal question to be determined is whether the ordinance bears a substantial relation to the

[ 168 Pa. Super. Page 24]

    health, safety, morals or general welfare of the people as a whole, as contended for by the City, or is arbitrary, unreasonable and capricious, constituting a denial of due process, as contended for by defendants.

The guiding principle in determining the question was admirably stated by Mr. Justice Roberts in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. Speaking for the Supreme Court of the United States, he said, 310 U.S. at page 308, 60 S.Ct. at page 905: 'When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.' (Italics supplied.)

The appellee takes the position that in the downtown business district of Allentown, as in every city, the 'clear and present danger of * * * interference with traffic' and the 'clear and present danger of accident' always exist. The learned judge of the court below upheld the position taken by the City and said: 'As we conceive the purpose of the ordinance, at least so far as the ban on the use of sound trucks on busy streets is concerned, it was rather enacted as a safety measure than merely to protect the citizens from annoyance or to protect their right of privacy.'

NIMLO is authority for the statement that municipalities everywhere are seeking actively a solution to the difficult problem which will safeguard freedom of thought and at the same time not unreasonably interfere with freedom of speech. In view of the widespread interest in the question, a brief resume of two vitally important five to four decisions of the United States Supreme Court may be helpful at this point.

Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574, the first of the two cases, was decided June 7, 1948. Mr. Justice Douglas in the opening sentence of the majority opinion of the Court said: 'This case ...


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