Whitney v. Municipal Court of City and County of San Francisco

        BRAY, Presiding Justice.

        Respondents petitioned the superior court for a writ of prohibition to prohibit appellant, the San Francisco Municipal Court, from proceeding further to try respondents on a charge of violating section 741, Municipal Code, also known as the San Francisco Police Code. Appellant appeals on a clerk's transcript from the order granting such writ.

Appellant also purported to appeal from the order overruling demurrer. As this order is not appealable, that purported appeal will be dismissed.

QUESTION PRESENTED.

        It is conceded by the parties that because of the limited form of petition, neither the superior court was, not is this court, concerned with the application of section 741 to the respondents, but only with the question of whether or not the section is unconstitutional on its face.

        1. Does prohibition lie?

        2. Is the ordinance void for uncertainty?

        3. Is the objectionable language separable?         4. Is the ordinance void for lack of an express requirement of scienter?

RECORD.

        Respondents' petition in the superior court for writ of prohibition alleged that they were charged in the municipal court with a violation of section 741, Municipal Code; that on arraignment they filed a written demurrer to the complaint alleging that it did not state facts sufficient to constitute a public offense; that the municipal court overruled the demurrer, and, unless restrained, will proceed with trial; that section 741 is void for uncertainty and in violation of the due process clause of the Fourteenth Amendment, and of the First Amendment to the Constitution of the United States. Appellant demurred to the petition for the writ of prohibition on the ground that it did not state facts sufficient to constitute 'a cause of action.' The superior court overruled the demurrer and ordered the writ granted.

Because of the 'procedural posture' of this case, it not showing the conduct of respondents which it is claimed violates the ordinance, the First Amendment to the Constitution is not involved.

1. PROHIBITION.

        Prohibition is a proper remedy to be sought here. Respondents raised the question of jurisdiction in the municipal court. That court determined that it had jurisdiction. Respondents thereupon petitioned the superior court for a writ of prohibition.

        'The constitutionality of a statute or ordinance may be tested by prohibition on the ground that invalidity of the legislation goes to the jurisdiction of the court to proceed to try the case.' (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 462, 171 P.2d 8, 10.) That case points out that if there is a plain, speedy and adequate remedy in the ordinary course of law prohibition will not lie, and that trial and appeal may be adequate remedies under certain circumstances. It then said (pp. 465-466, 171 P. at p. 12): 'In addition, habeas corpus may be used to test the constitutionality of a statute (Ex parte Bell, 19 Cal.2d 488, 122 P.2d 22), and the availability of that remedy has been held to be a complete bar to the issuance of prohibition. (Leach v. Superior Court, 1932, 215 Cal. 531, 12 P.2d 1.) But where, as here, the defendant cannot use habeas corpus because he is not being deprived of his liberty, he should not be refused prohibition, while awaiting trial, solely on the ground that habeas corpus would be available if he would submit to imprisonment.' (Emphasis added.) It then refers to the fact that in some cases remedies of trial and appeal were held adequate while in other cases they were held inadequate. It then stated (p. 467, 171 P. at p. 13): 'A reviewing court, in order to prevent a failure of justice, has discretion in accordance with established legal principles and practice, to determine the circumstances which justify the use of prohibition to restrain a lower tribunal from acting without or in excess of its jurisdiction. And in the exercise of that discretion it may take into consideration the desirability of the prompt settlement of an important jurisdictional question so that a multiplicity of void proceedings in other cases will be prevented.'

        Rescue Army, in stating that prohibition should not be refused solely on the ground that habeas corpus would be available if the defendant would place himself in a position where habeas corpus might apply, shows that the Supreme Court, in spite of Leach v. Superior Court (1932) 215 Cal. 531, 12 P.2d 1, considered that it was still in the discretion of the reviewing court to determine whether in the interests of justice prohibition should issue rather than to leave the defendant to the remedies of trial and appeal or habeas corpus. Certainly the 'desirability of the prompt settlement of an important jurisdictional question' applies here.         In Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 46, p. 46, 324 P.2d 990, p. 995 we said, without regard to whether or not habeas corpus was available: 'We entertain no doubt that prohibition is a proper remedy. The respondent court has already determined, erroneously, that it has jurisdiction and will proceed with the trial unless restrained. The petitioner alleges and respondent admits that the respondent court 'threatens to, and will unless prohibited by this [district] court [of appeal], proceed with the trial of petitioner upon the charge of violating Section 290 of the Penal Code,' despite the fact that, as we have found, the complaint in question charges no public offense.' The fact that there we found that the defendant was entitled to the issuance of the writ while here we find that the respondents are not so entitled, does not affect the applicability of the proceeding. Under the circumstances of this case the superior court had the discretion mentioned in Rescue Army to determine, as it did, that the circumstances justified the consideration of the constitutionality of ordinance 741 on an application for writ of prohibition.

2. ORDINANCE NOT VOID FOR UNCERTAINTY.

        The burden is on respondents to show that the section cannot validly be applied in any way, that is, that the standards set out are void on their face. A statute or an ordinance cannot be held void for uncertainty if any reasonable and practical construction can be given its language.

The construction of a municipal ordinance is governed by the rules governing the construction of statutes. See 35 Cal.Jur.2d 213.

        Before examining the ordinance, it is well to look at the rules to be applied in construing it. 'While no one may be required at his peril to speculate as to the meaning of a penal statute, People v. McCaughan, ---- Cal.App.2d ----, 306 P.2d

'A hearing was granted by the Supreme Court on March 20, 1957.

        61, yet '[w]here a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced.' People v. Deibert, supra, 117 Cal.App.2d at page 418, 256 P.2d at page 360. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible, People v. Hallner, 43 Cal.2d 715, 720, 277 P.2d 393; People v. Kennedy, 21 Cal.App.2d 185, 193, 69 P.2d 224; moreover, a statute must be upheld unless its nullity clearly, positively and unmistakably appears. People v. Darby, 114 Cal.App.2d 412, 428, 250 P.2d 743. In determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them, the court must endeavor, if possible, to view the statute from the standpoint of a reasonable man who might be subject to its terms, Pacific Coast Dairy v. Police Court, supra, 214 Cal. at page 676, 8 P.2d 140, [80 A.L.R. 1217]; and the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Smith v. Peterson, 131 Cal.App.2d 241, 246, 280 P.2d 522, [49 A.L.R.2d 1194].' (In re Clark[e] (1957) 149 Cal.App.2d 802, 806-807, 309 P.2d 142, 146.)

        One may consider the legislative intent, the statute or ordinance being interpreted in that light. If the language gives fair notice of practices to be avoided, the section will be upheld. (People v. Hallner (1954) 43 Cal.2d 715, 277 P.2d 393; In re Clarke, supra, 149 Cal.App.2d 802, 309 P.2d 142.) Section 741 is an obscenity ordinance and should be construed as such.

        In considering the language employed in the section, it is proper to recognize long usage, or the common law meaning Lorenson v. Superior Court

People v. McCaughan Sultan Turkish Bath v. Police Comrs. Kelly v. Mahoney In re Newbern

        The ordinance under consideration reads as follows (the bracketed numbers are inserted before each of the standards for purposes of discussion and do not appear in the ordinance): 'SEC. 741. Indecent, Etc., Motion Picture Exhibitions, Etc., Prohibited. It shall be unlawful for any person, firm, association or corporation to hold, conduct or carry on or to cause, or permit to be held, conducted or carried on, any motion picture exhibition, or entertainment of any sort which is offensive to decency, or which excites vicious or lewd thoughts or acts or creates acts of violence or excites race or class hatred, or which is lewd or obscene or vulgar, or which is of an obscene, indecent or immoral nature, or so suggestive as to be offensive to the moral sense.'

        It is conceded that the only portions of the ordinance which respondents are charged with violating are those portions which are included in bracketed numbers , , and . They are not charged with any conduct which ' creates acts of violence or excites race or class hatred' or ' which is of an obscene, indecent or immoral nature * * *'

        Thus, we must determine whether the language prohibiting the holding of a motion picture exhibition, or any entertainment which is offensive to decency, or excites vicious or lewd thoughts or acts or which is lewd or obscene or vulgar or which is so suggestive as to be offensive to the moral sense, is so uncertain or vague as to make the ordinance unconstitutional.

To avoid confusion we are using the numbers which we have bracketed into the ordinance, supra.

        Applicable here is Roth v. United States (1957) 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 which encompassed two cases, one dealing with a conviction for violation of a federal obscenity statute, and the other dealing with a conviction for violation of section 311, California Penal Code. In upholding both convictions the majority opinion of the United States Supreme Court stated (pp. 491-492, 77 S.Ct. at p. 1312): 'It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. The federal obscenity statute makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character.' . The California statute [Cal.Pen.Code § 311] makes punishable, inter alia, the keeping for sale or advertising material that is 'obscene or indecent.' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.         'Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * [T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct whem measured by common understanding and practices * * *.' United States v. Petrolli, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the condust proscribed and mark '* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.' Id., 332 U.S. at page 7, 67 S.Ct. [1538] at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, note 15, 74 S.Ct. 808, 815, 98 L.Ed. 989; Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367; United States v. Ragen, 314 U.S. 513, 523-524, 62 S.Ct. 374, 378, 86 L.Ed. 383; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 71 L.Ed. 508; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 96 L.Ed. 402; Fox v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232. [Footnote omitted.]

'This Court, as early as 1896, said of the federal obscenity statute:

        'In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.'

        In State v. Jackson (1960) 224 Or. 337, 356 P.2d 495, the defendant was charged with a violation of an Oregon statute (ORS 167.150(1)) which, in part, prohibited the selling of any obscene or indecent or immoral book. The trial court sustained a demurrer to the indictment. In reversing the judgment based thereon the Oregon Supreme Court at considerable length related the history of the obscenity law (pp. 503-504 of 356 P.2d): 'While ORS 167.150(1) makes use of the various descriptive terms 'obscene,' 'indecent' and 'immoral,' we think that they express but a single attitude which may fairly be described by the one word 'obscene.' Commonwealth v. Gordon, 1949, 66 Pa.Dist. & Co.R. 101, 112, and cases cited. The impossibility of finding any popularly accepted definition for the word 'obscene' must be recognized at the outset. Lockhart & McClure, 'Literature, The Law of Obscenity, and the Constitution,' 38 Minn.L.R. 295, 320 (1954); Symposium, 'Obscenity and the Arts,' 20 Law and Contemporary Problems 531 (1955). In this, obscenity is like 'negligence,' 'reasonableness' or other terms that embody concepts from which important legal consequences flow. The legal meaning is artificial. If it is thought significant in constitutional terms to circumscribe the definition of obscenity more narrowly than that of other words, it is because speech at the present time occupies a preferred place among bill-of-rights freedoms.

        'Obscenity generally bears a connotation of sexual misconduct in the form of speech. [Citations.] Although the growth of the English common law of obscenity was haphazard, the early cases dealt with conduct related in some way to sex. [Citations.] As a matter of federal constitutional law it is now clear that obscenity is restricted to sexual matters. Roth v. United States, supra, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Even in this area the states do not have a free choice to determine for themselves what is obscene. Thus, for example, what has been termed 'critical obscenity,' the mere general advocacy, in a non-prurient manner, of ideas offensive to current standards         The court then pointed out that the test of obscenity most widely used in this country for many years was that expressed by Lord Cockburn in Regina v. Hicklin, L.R. 2 Q.B. 360 (1868): "* * * whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." (356 P.2d at p. 504.) This test was later rejected and various other tests were applied, in each case the test being the creation of the author of the opinion. However, in most of the later cases obscenity was defined in terms of 'tendency' or 'effect' taken from the Hicklin rule. (People v. Wepplo (1947) 78 Cal.App.2d Supp. 959, 961, 178 P.2d 853 used this definition.) The court then points out that after argument in Roth, supra, the American Law Institute published Tentative Draft No. 6 of its Model Penal Code, dealing with the law of obscenity. It defined obscenity as follows (356 P.2d at pp. 505-506): "A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *' The Institute appended this explanation of its position: 'We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehaviour, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which 'tends to corrupt or debase.' If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehaviour follows from contact with obscenity. Evidence of such consequences is lacking; if actual proof of tendency to corrupt were required, prosecutors would have a difficult task. On the other hand, 'appeal to prurient interest' refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look behind the curtain of privacy which our customs draw about sexual matters.' (p. 10).

        'Following publication of the Model Penal Code, the United States Supreme Court announced its decision in Roth v. United States, supra, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, and apparently adopted the Model Code definition as the broadest which might be applied by a state consistently with the Constitution. The opinion of the majority written by Mr. Justice Brennan, defined the 'proper standard' to be: '* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' In a footnote, the court stated that it perceived 'no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I. Model Penal Code.''

        Thus, there can be no question that the word 'obscene' used in a statute of the kind we are considering has a definite and well defined meaning and is not vague nor uncertain. Bracket of ordinance 741 refers to a motion picture exhibition or an entertainment which is 'lewd or obscene or vulgar.' There can be no question but that the word 'lewd' has a definite and well understood meaning. The federal statute upheld in Roth, supra, used the words 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character,' and the California statute there upheld used the words 'obscene or indecent.' Applying the language from Roth hereinbefore quoted to our case, the words 'obscene and lewd' in ordinance 741 'applied according to the proper standard         The word 'vulgar' however, if attempted to be applied to obscenity, has no definite or clear meaning. It is generally considered to apply to violations of good taste or manners. (See Webster's New International Dictionary, 2d ed.) Appellant contends that 'vulgar' is synonymous with 'filthy' which latter word was approved in Roth. There is no resemblance between the two words then related to sex activities. However, as will hereinafter appear, the inclusion of a vague and uncertain word in the statute does not invalidate the statute.

        Bracket refers to 'offensive to decency.' This is merely another way of saying 'indecent.' The phrase sets forth a standard that is clear and definite and is probably more forceful than the word 'indecent' alone, implying that which is even more obnoxious to decency.

        Bracket refers to 'excites vicious or lewd thoughts.' 'Lewd' we have hereinbefore discussed. Exciting vicious thoughts, when considered in context with obscenity, is clear and definite: an exhibition which excites vicious thoughts of sexual activity. Mr. Chief Justice Warren in his concurring opinion in Roth, supra, 354 U.S. page 494, 77 S.Ct. page 1314 said: 'Obscenity has been construed by the California courts to mean having a substantial tendency to corrupt by lustful desires.' The language in bracket comes within this definition.

        Bracket refers to 'so suggestive as to be offensive to the moral sense.' This phrase is certainly vague and uncertain. It could be equated with the language in a Utah statute (U.C.A.1943, 103-11-1), 'to commit acts injurious to public morals' considered in Musser v. Utah (1948) 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562, to not provide a reasonable standard of action. The court there felt that by itself the language would warrant, under a charge of conspiring, a conviction for agreeing to do almost any act which a judge or jury might feel contrary to their notions of morals, as such notions might exist at the moment.

        In People v. Saad (1951) 105 Cal.App.2d Supp. 851, 234 P.2d 785, the court found that the underscored language in a statute (Pen.Code, § 337.5) which excluded from the race tracks any person who had been ejected from a race track "* * * for touting or practices inimical to the public interests * * *" was vague and indefinite and had 'no ascertainable standard of guilt * * *' (P. 854, 234 P.2d at p. 787.)

As we have stated, all of the language with which we are concerned as it appears on the face of the ordinance is clear and certain, with the exception of the word 'vulgar' in bracket and the phrase in 'so suggestive as to be offensive to the moral sense.' This brings us to the question

3. IS THE OBJECTIONABLE LANGUAGE IN THE ORDINANCE SEPARABLE? YES.

        There is no reason why all the standards set up in an ordinance need be applied in any one case, particularly where, as here, the standards are set up in the disjunctive. The basic purpose of the portions of the ordinance which respondents are charged with violating is to provide a check against obscenity. The other two brackets of the ordinance deal with motion picture exhibitions or entertainments which 'create[ ] acts of violence' or 'excite[ ] race or class hatred.' Obviously a motion picture which is 'obscene' does not necessarily create violence or excite race or class hatred. Thus these two portions of the ordinance are clearly separable from the others. Respondents not having been charged with violating these portions of the ordinance cannot attack it even if it might be applied in an unconstitutional manner to another. (United States v. Hunter v. Justice's Court

Sibert v. Dept. Alcoholic Bev. Control

        Bracket refers to an exhibition 'which is of an obscene, indecent or immoral nature.' As respondents were not charged with violating this portion of the ordinance, we deem it unnecessary to consider these uncharged sections further.

        The criteria for severing an invalid portion of a statute to save the rest of the statute is simply a question of determining whether or not the statutory scheme or purpose will be destroyed by the severance. (People v. McCaughan (1957) 49 Cal.2d 409, 416, 317 P.2d 974.) Here, striking bracket and the word 'vulgar' in bracket from the ordinance, in nowise affects or destroys the scheme or purpose of the ordinance, namely, to eliminate obscenity from motion picture exhibitions and entertainments. In McCaughan the defendant was charged with violating section 361, Penal Code, which stated: 'Every person guilty of any harsh, cruel, or unkind treatment of, or any neglect of duty towards, any idiot, lunatic, or insane person is guilty of a misdemeanor.' The court held that the words 'harsh' and 'unkind' were vague and uncertain, and that as to those words the statute was unconstitutional, but that 'cruel' and 'neglect of duty' had commonly accepted meanings and were not vague or uncertain. The court then said (p. 416, 317 P.2d p. 979): 'The fact that a statute is unconstitutional in part does not necessarily invalidate the entire statute. The remaining parts of the statute may be preserved if they can be separated from the unconstitutional part without destroying the statutory scheme or purpose.' The court held the unconstitutional words severable from the statute, saying that thereby the dominant purpose of the statute to protect insane persons could be effected by their elimination from the statute and the constitutional provisions could stand alone and remain in force. In our case the dominant purpose of the ordinance (elimination of obscenity in exhibitions) is not affected by the elimination of the unconstitutional portions of the ordinance. We must presume that the Legislature would want its scheme carried out if it is at all possible.

        Moreover, in a case where it was recognized that in the application of a statute certain portions would probably be unenforceable and that the entire conduct had to be considered, including the conduct covered by the invalid portions of the statute, in determining obscenity, the court still refused to hold the entire statute void. 'If there be questionable acts contained within the ordinance, the whole ordinance should not be invalidated, including both the bood and the bad provisions.

        'Individual transgressions alleged to come within the purview of the ordinance will be tested and weighed in accord with the law when the occasion for the prosecution arises. The respondents will have their full day in court, and if they are trespassed against, the right to appeal will still be available.' (Adams Newark Theatre Co. v. City of Newark (1956) 22 N.J. 472, 126 A.2d 340, 343; aff'd per curiam 354 U.S. 931, 77 S.Ct. 1395, 1 L.Ed.2d 1533 (1957).

        On the face of the ordinance there are set forth valid standards of guilt. The invalid ones can be removed without striking down the whole ordinance. At this time we do not know in what manner the ordinance will be applied to respondents. There is no reason to assume that it will be applied other than in a valid manner.

4. SCIENTER.

        There is no requirement of knowledge of the character of the motion picture exhibited or of the entertainment expressly set forth in the ordinance. Unless the requirement of scienter can be read into the ordinance, the ordinance cannot stand. In Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, the court         Our real concern is whether an obscenity ordinance in order to comply with the Fourteenth Amendment must require scienter. In Smith v. California (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, a bookseller was prosecuted for possession of an obscene book in his store under an ordinance of the city of Los Angeles which made it unlawful to have in possession 'any obscene or indecent' book. The conviction of the possessor in the municipal court was upheld by the appellate department of the superior court on the ground that the ordinance imposed a 'strict' or 'absolute' criminal liability and no scienter was required. In holding the ordinance unconstitutional because of the lack of requirement of scienter the court said (pp. 152, 153, 80 S.Ct. p. 218): 'We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. [Footnote omitted.] The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. * * * By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For it the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose [footnote omitted], he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.' [Footnote omitted.] The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed.'

        State v. Jackson, supra, 356 P.2d at page 498, pointed out that Smith v. California, supra, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 reversed the conviction because of the lack of requirement of scienter in the ordinance. The court then said that the Oregon ordinance they were considering would be invalid 'unless knowledge is a necessary element of the offense.' (P. 498, of 356 P.2d.) 'Since we have a duty to give an act a constitutional construction if it can be done without wrenching the meaning of words [citation], we hold that * * * [the Oregon statute under consideration] can be enforced against only         Times Film Corp. v. Chicago (1961) 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, upheld an ordinance of the city of Chicago which required submission of all motion pictures for examination prior to their public exhibition. The court quoted from Burstyn, Inc. v. Wilson, supra, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, "* * * It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places." (365 U.S. at p. 48, 81 S.Ct. at p. 394.) It quoted further from Burstyn, supra, 'that motion pictures were not 'necessarily subject to the precise rules governing any other particular method of expression. Each method,' we said, 'tends to present its own peculiar problems.'' (P. 49, 81 S.Ct. at p. 395.) It further said (p. 50, 81 S.Ct. at p. 395): 'It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem [obscenity], absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances.'

        That ordinance 741 may be interpreted to require scienter in its application, and therefore be held to be constitutional, is well shown by In re Cooper (1960) 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956. There in a proceeding in habeas corpus challenging validity of proceedings to extradite the petitioners to Pennsylvania to stand trial for the distribution of obscene literature mailed from California, and related offenses, one of the contentions of the petitioners was that the Pennsylvania obscenity statute was void as it did not expressly require scienter. Concerning this contention our Supreme Court said (pp. 781-782, 3 Cal.Rptr. at p. 145, 349 P.2d at p. 961): 'There is no merit in the contention that section 4524 is void on its face because it does not expressly require that the defendant have knowledge that the proscribed material is obscene. The statute may reasonably be interpreted as making knowledge an element of the offense (see Pockman v. Leonard, 39 Cal.2d 676, 685, 249 P.2d 267; Hirschman v. County of Los Angeles, 39 Cal.2d 698, 702, 249 P.2d 287, 250 P.2d 145); so interpreted it would not be invalid as imposing strict criminal liability. Winters v. New York, 333 U.S. 507, 510, 514-515, 68 S.Ct. 665, 92 L.Ed. 840; Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 59 L.Ed. 573.'

        It should be pointed out that in Smith v. California, supra, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, the municipal court and the superior court assumed without discussion that the ordinance there is question required strict liability and gave no consideration to the question of whether or not a requirement of scienter could be read into the ordinance. The United States Supreme Court did likewise. This very distinction is stated in In re Cooper, supra, 53 Cal.2d at page 782, 3 Cal.Rptr. at page 145, 349 P.2d at page 961: 'Smith v. People of State of California, [361 U.S. 147] 80 S.Ct. 215, [4 L.Ed.2d 205], is not to the contrary, for in that case the state court had interpreted the ordinance there involved as eliminating knowledge of the character of the proscribed literature as an element of the offense, and it was only as so interpreted that the Supreme Court held the ordinance void.'

        We must assume that the trial court, in applying this ordinance to the evidence which will be produced at the trial, will instruct the jury that before there can be a conviction under the ordinance, scienter must be proved.

        In City of Cincinnati v. Marshall (1961) 172 Ohio St. 280, 175 N.E.2d 178, an ordinance of the city of Cincinnati which made it a misdemeanor to possess or sell obscene writings or pictures was held unconstitutional for lacking a requirement of scienter. As said in Smith v. California, supra, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, upon which the decision is based, and which case is distinguished in Cooper, supra, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956, no consideration         'In addition, the trial judge indicated his belief that the ordinance in question imposed absolute liability on defendant upon mere proof of possession * * *.'

        In State v. Warth (1962) 173 Ohio St. 15, 179 N.E.2d 772, the conviction of the defendant who, as manager of a theatre, did "unlawfully exhibit, or have in his possession, or under his immediate control an obscene motion picture film * * *" was reversed. The per curiam decision stated: 'Section 2905.342, Revised Code, making it a misdemeanor to have in one's possession an obscene motion picture film, without reference to knowledge or scienter on the part of an accused, is unconstitutional. City of Cincinnati v. Marshall, 172 Ohio St. 280, 175 N.E.2d 178; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.' Obviously the reviewing court in Warth did not consider the question of reading scienter into the statute. These two Ohio cases and Smith v. California, supra, 361 U.S. 147, 80 S.Ct. 215, in view of the decision in Cooper, supra, 53 Cal.2d 772, 3 Cal.Rptr. 140, 349 P.2d 956, can have no effect in this state on the question of the right to interpret the obscenity ordinance before us to require scienter.

        We have received the decision of the appellate department of the San Francisco Superior Court in People v. Walker (appeal No. 922) which held ordinance 741 unconstitutional for lack of a requirement on its face of scienter. The decision, reversing three prior decisions of the same appellate division, decided prior to Smith, supra, is based entirely on Smith. No consideration was given to Cooper, supra.

        The purported appeal from the order overruling demurrer is dismissed. The order granting the writ is reversed. Appellant shall recover costs.

        TOBRINER and SULLIVAN, JJ., concur.

"* * * Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious.' Rosen v. United States, 161 U.S. 29, 42, 16 S.Ct. 434, 480, 40 L.Ed. 606.