Young

FRIEDMAN, Acting P.J.

Appellant Jack Young faces prosecution for violating Sacramento County Ordinance No. 409. The ordinance prohibits peddling or giving away goods or wares "along or upon" public roads and highways in the unincorporated area of the county. [1] The municipal court overruled Mr. Young's demurrer to the complaint and the superior court rejected his application for a writ of prohibition. Both proceedings were grounded upon his claim that the ordinance violated freedoms guaranteed him by the First and Fourteenth Amendments to the federal Constitution. He is here by means of an appeal from the judgment of the superior court. (1) The writ of prohibition was an appropriate remedy under the circumstances. ( Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 463 [ 171 P.2d 8 ]; Simpson v. Municipal Court (1971) 14 Cal. App.3d 591, 594 [ 92 Cal. Rptr. 417 ].)

The case has not been tried and the constitutional challenge is aimed at the face of the ordinance. Nevertheless, some transcribed testimony has been incorporated in the record on appeal. With his demurrer Mr. Young brought on for argument a motion under Penal Code section 1538.5 for an order directing…

Appellant Jack Young faces prosecution for violating Sacramento County Ordinance No. 409. The ordinance prohibits *768 peddling or giving away goods or wares “along or upon” public roads and highways in the unincorporated area of the county. 1 The municipal court overruled Mr. Young’s demurrer to the complaint and the superior court rejected his application for a writ of prohibition. Both proceedings were grounded upon his claim that the ordinance violated freedoms guaranteed him by the First and Fourteenth Amendments to the federal Constitution. He is here by means of an appeal from the judgment of the superior court. The writ of prohibition was an appropriate remedy under the circumstances. (Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 463 [ 171 P.2d 8 ]; Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 594 [ 92 Cal.Rptr. 417 ].)

The case has not been tried and the constitutional challenge is aimed at the face of the ordinance. Nevertheless, some transcribed testimony has been incorporated in the record on appeal. With his demurrer Mr. Young brought on for argument a motion under Penal Code section 1538.5 for an order directing the return of some…

I dissent. In my view the Sacramento County ordinance is reasonable, not broader than constitutionally permissible, and constitutes a necessary and proper exercise of the police power of the county.

We must balance the various community interests in passing on the constitutionality of local regulations of the character involved here, always keeping in mind that the freedom of the First Amendment occupies a preferred position. (Saia v. New York (1948) 334 U.S. 558, 562 [ 92 L.Ed. 1574, 1578 , 68 S.Ct. 1148 ].) It must be remembered, however, that “pure speech” is not involved here, but rather acts and conduct incident to such expression. (See Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 152 [ 22 L.Ed.2d 162, 168 , 89 S.Ct. 935 ].) “[A]cts and conduct incidental to any speech may be regulated. The fact that people assert First Amendment rights does not place them above the law and immunize them from obeying state laws, so long as such state laws are enforced fairly and without discrimination. [Citations.]” (People v. Uptgraft (1970) 8 Cal.App.3d Supp. 1, 5-6 [ 87 Cal.Rptr. 459 ].)

As a general proposition, a person (or persons) has no First Amendment right to obstruct traffic…