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COMMONWEALTH EX REL. HINES v. WINFREE. (06/28/62)

June 28, 1962

COMMONWEALTH EX REL. HINES, APPELLANT,
v.
WINFREE.



Appeal, No. 117, Jan. T., 1960, from order of Court of Common Pleas of Delaware County, June T., 1959, No. 2783, in case of Commonwealth ex rel. Harry V. Hines v. Howard Winfree, chief of police. Order affirmed.

COUNSEL

John A. Reilly, with him Catania, Gorbey, Reilly & Nolan, for appellant.

No argument was made nor brief submitted for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen and Alpern, JJ.

Author: Jones

[ 408 Pa. Page 130]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal challenges the validity of an ordinance of the City of Chester which prohibits the making of unnecessary noises and regulates the use of sound trucks and sound amplifying machines on or about the highways of that municipality.

On September 26, 1950, the City Council of Chester passed an ordinance entitled "An ordinance to prohibit the making of unnecessary noises and regulating the use of sound amplifying machines". That ordinance, in pertinent part, provides: "SECTION 2. No person, persons, firm or corporation shall play, use, operate, or knowingly permit to be played, used or operated any radio receiving set, musical instrument, phonograph, sound amplifier, loud speaker, or other machine or device for the reproduction of sound, upon property (real or personal) or premises owned, occupied or used by him, them, or it, which is not measured and regulated by decibels so that the sound coming from such machine cannot be audibly heard at a

[ 408 Pa. Page 131]

    distance greater than one (100) hundred feet from the property or premises wherein such machine or device is located. Nothing herein contained shall be construed to prohibit the playing of a band or orchestra in any concert hall, auditorium, club room or public park. SECTION 3. No person shall operate a sound truck or loud speaker on the streets or public places of the City of Chester without first obtaining a permit therefor from the Council of the City of Chester. Such permit shall be for a period of one day only. Such permit shall not be transferable from person to person or from sound truck to sound truck and may not be extended as to the date it shall be used, nor shall any permit for the operation of such sound truck be issued for use earlier than 8 o'clock A.M. or later than 9 o'clock P.M. of the prevailing local time. Every application for a permit shall be accompanied by a permit fee of One ($1.00) Dollar." That ordinance further provides the manner of applying for a permit for the use of a sound truck or loud-speaker, prescribing, inter alia, that a permit application must be accompanied by a "certificate from an engineer that such amplifying machine is so equipped and regulated by decibels, that the sound coming from such machine cannot be audibly heard at a distance greater than one (100) hundred feet from the sound truck or amplifying machine." For a violation of this ordinance a minimum fine of $50 and a maximum fine of $200 is prescribed; in default in payment of the fine and costs, imprisonment for a minimum period of 30 days and a maximum period of 90 days in the county jail is prescribed.

On December 22, 1955, the Council of Chester amended Section 3 of the ordinance to provide for an increase in the amount of the permit fee from $1 to $25 per diem.

On August 3, 1959, during a political campaign, the Democratic Campaign ...


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