On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 64.
For the appellant, George Pellettieri.
For the respondent, Louis Josephson and John A. Brieger.
The judgment herein is affirmed by an equally divided court.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, DONGES, RAFFERTY, DILL, McLEAN, JJ. 6.
For reversal -- HEHER, COLIE, EASTWOOD, WELLS, FREUND, McGEEHAN, JJ. 6.
COLIE, J. (For reversal.) I am of the opinion that the judgment under review should be reversed but I do not agree that section 4 of the ordinance is an unconstitutional exercise of the police power. The privilege of a citizen to use the streets for the communication of ideas is not absolute but must be exercised in subordination to the general comfort and convenience. Most assuredly the prohibition against making "loud and raucous" noises is a reasonable regulation.
Appellant was found guilty of a violation of section 4 of "An Ordinance to prohibit the making of unnecessary noise." Section 4 reads:
"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."
The prohibition is against the emitting of "loud and raucous" noises and applies equally to each of the enumerated categories, i.e., sound truck, loud speaker, sound amplifier, radio or phonograph with loud speaker or sound amplifier, calliope or any other instrument.
The only evidence before the trial court was that a patrolman heard a sound truck broadcasting music and heard a man's voice broadcasting from the sound truck. There is not a scintilla of evidence that the music or voice was loud or raucous, and under the wording of section 4 such ...