The opinion of the court was delivered by: LORD, III
Plaintiffs in this case are two candidates running on the Democratic Party ticket for local office in the Borough of Folcroft, Pennsylvania, in an election to be held on November 4, 1969, and Mrs. Phillips, a resident of Folcroft. They seek a preliminary injunction against the further enforcement of Ordinance No. 136 of the Borough of Folcroft directed to the individual defendants who are responsible for such enforcement. Plaintiffs also seek a declaratory judgment, 28 U.S.C.A. §§ 2201, 2202 (Supp.1969), that the ordinance in question is violative of the due process clause of the Fourteenth Amendment.
Plaintiffs filed their complaint on October 21, 1969, and we held a hearing on October 23 and 24 in an effort to expedite a controversy which threatened to become moot after November 4, 1969.
There is no dispute by the defendants that plaintiffs state a claim under the Civil Rights Act, 42 U.S.C.A. § 1983 (Supp.1969). The only attack on our jurisdiction to hear this claim is that plaintiff, Mrs. Phillips, presently appealing in the courts of the Commonwealth her conviction under the ordinance, failed to exhaust state remedies before instituting this action. Such exhaustion is not required. Monroe v. Pape, 365 U.S. 167, 168, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); McNeese v. Board of Educ., 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); see Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).
The basic facts of this case are relatively simple. At about 6:00 p.m. on October 2, 1969, Mrs. Phillips began using a homemade sound broadcast system, attached to her car, in the Delcroft Shopping Center, Folcroft, Pennsylvania, described as "the business center" of Folcroft, and used by Darby residents as well. The subject of the broadcast message, actually a tape recording, was an attack upon the unsanitary condition of the municipal dump used by residents of both Darby and Folcroft; the broadcast urged the closing of the dump and asked listeners to sign a petition directed to Dr. George, a State health official. The condition of the dump is an issue in the local elections, one which has been addressed by the candidates. Mrs. Phillips is not a candidate in those elections.
At about 6:08 p.m., Officer Lorup arrived at the shopping center in response to a radio message concerning a sound truck at the shopping center. Officer Lorup requested Mrs. Phillips to turn down the volume of the broadcasts but she refused. The officer left the scene. At about 6:23 and 6:29, Officer Lorup received two radio calls about the same sound truck. At about 6:30 p.m., he arrived at the shopping center once again, and made another request of Mrs. Phillips to reduce the volume of the broadcasts. When she again refused, he told her of the disorderly conduct ordinance (No. 136) and warned her again to reduce the volume, and, when she refused, arrested her for violating the ordinance.
On October 7, 1969, Mrs. Phillips was convicted of disorderly conduct by Magistrate Truscello and fined $25 plus costs. He warned her that if she appeared before him again on the same charge, he might impose a heavier fine. She raised as a defense in those proceedings the same arguments concerning the ordinance's unconstitutionality as she presents here. Her conviction is presently being appealed to the Court of Common Pleas of Delaware County, Pennsylvania. Plaintiffs specifically exclude any request that we interfere with the pending state proceedings.
Plaintiffs attack the Folcroft Ordinance No. 136 as violative of due process under the Fourteenth Amendment because of vagueness and overbreadth. That Ordinance provides in relevant part as follows:
" Section 1: Disorderly conduct within the limits of the Borough of Folcroft, shall be and is hereby defined as any act, word or conduct causing or tending to cause a disturbance of the peace and good order of the Borough, or causing or tending to cause any danger, discomfort or annoyance to the inhabitants of the Borough or users of the Borough thoroughfares, and shall include * * * the making of loud and/or unnecessary noises * * *."
Plaintiffs challenge this municipal ordinance as unconstitutional "on its face",
by which we understand them to mean that its application to sound trucks "* * * would be unconstitutional in some possible applications as construed, even though, were [the ordinance] limited in applicability to the circumstances of this case, it would be constitutional. * * *" Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 109 n. 224 (1960) (hereinafter cited as " Amsterdam "). See Thornhill v. Alabama, 310 U.S. 88, 96-98, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).
We need not consider plaintiffs' contention that she has been denied the equal protection of the laws by discriminatory application of the ordinance. Her specific abjuration of injunctive relief against her conviction under the ordinance obviates the need for evaluation of her argument that the ordinance has been applied in a bad faith manner. See Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). However, plaintiffs have adduced some evidence of discriminatory application of the ordinance, including the following testimony, which is largely uncontradicted: during the general election of 1968, a panel-truck with large and expensive "professional" sound equipment was used at a Republican Party "rally" at the Delcroft Shopping Center attended by the present Borough Council President, Mr. Bowe, State Senator Bell, and Magistrate Truscello. A year earlier, Mrs. Phillips and her husband were arrested under Odinance No. 136 by Police Chief Myers when Mrs. Phillips, then a candidate for state-wide office, attempted to use homemade sound equipment similar to that involved in the instant case in aid of her campaign within the Borough of Folcroft. These facts are complicated by the rather bizarre misunderstanding on the part of nearly all the Borough officials and political party officers that the Mayor of the Borough was vested with discretion to issue permits for the use of sound trucks, a misconception not corrected until this suit was filed and the Borough Solicitor, to his admitted surprise, was unable to find any ordinance granting such power. Thus, there was testimony that, in the past, permits for the use of sound trucks had been granted to those persons in power, to wit, Republicans, and that at a Borough Council meeting on September 8, 1969, the Mayor forbad the use of sound trucks by any candidate for election, regardless of political affiliation.
Further, there was testimony that social clubs and carnival sponsors had been permitted to use sound trucks within the last year for the advertisement of their respective functions. Mr. Young, a Folcroft resident, testified, without contradiction, that two blocks from his home there existed a community swimming pool which employed a public address system clearly audible at his home, some one hundred yards away, a substantially greater distance than the one hundred and fifty to two hundred feet that Mrs. Phillips' system carried at the Delcroft Shopping Center.
This evidence, tending to show uneven application of the ordinance, illustrates the potential for the arbitrary exercise of the police power which is latent in the ordinance. It is therefore of some assistance in deciding the issue of vagueness. See Hague v. CIO, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939); Amsterdam at 113; see also Herndon v. Lowry, 301 U.S. 242, 261-264, 57 S. Ct. 732, 81 L. Ed. 1066 (1937).
Plaintiffs Kelly and Egan testified that they desired to utilize sound trucks in their efforts to gain election to the position of member of the School Board and Borough Auditor respectively, since sound trucks are the "quickest, cheapest, most effective way" available to them. We think that these facts sufficiently state irreparable harm justifying equitable relief should the plaintiffs succeed on the merits.
Turning to the ordinance itself, the proscribed "disorderly" conduct is "* * * the making of loud and/or unnecessary noises * * *." In their testimony before us, the Borough's law enforcement officials indicated that this was the phrase under which they had proceeded against Mrs. Phillips, and Magistrate Truscello testified that he referred to that language in deciding to convict ...