For the prosecutor, George Pellettieri.
For the respondent, Louis Josephson and John A. Brieger.
Before Justices Bodine, Perskie and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. This writ of certiorari brings up for review prosecutor's conviction by the Police Court of the City of Trenton upon a complaint charging him with violating the fourth section of an ordinance of the City of Trenton entitled "An Ordinance to Prevent the Making of Unnecessary Noise."
The facts are undisputed that on August 22d, 1946, prosecutor set an amplifier on a truck and while driven by another on South Stockton Street in the City of Trenton, first played music and then spoke through the sound amplifier. There is no testimony in the record to indicate the purpose or the subject of this speech, although prosecutor's brief states he was using the sound apparatus to comment on a labor dispute then in progress in Trenton. He was tried and convicted in the Trenton Police Court on the following day upon a complaint charging a violation of section 4 of the aforesaid ordinance and fined $50 in accordance with section 6 thereof.
Section 4 of the ordinance reads as follows:
"That it shall be unlawful for any person, firm or corporation, either as principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument known as a calliope or any instrument of any kind or character which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing upon said streets or public places aforementioned."
Section 6 of the said ordinance, dealing with the penalty provisions, reads as follows:
"That any person, firm or corporation who shall violate any of the provisions of this ordinance shall, upon conviction thereof, be punished by a fine of not to exceed two hundred ($200) dollars, or by imprisonment in the County Jail for a period of not to exceed ninety (90) days, or by both such fine and imprisonment, and each violation of any of the provisions of this ordinance, and each day the same is violated, shall be deemed and taken to be a separate and distinct offense."
The sole question presented to this court by the prosecutor is the constitutionality of the ordinance. Two grounds on which it is attacked are, first, that it deprives the prosecutor of his rights ...