205 Cal. App. Supp. 2d 856 | Cal. App. Dep’t Super. Ct. | 1962
Defendant was charged in the municipal court with a violation of section 12049, subdivisions (a) and (b) of the Elections Code of California, in that he caused to be distributed a circular letter opposing a proposed sewer bond issue for the City of Carlsbad to be voted upon at an election, which circular letter did not bear the name or address of the person or persons responsible for its issuance and distribution. When the proceeding was called for trial, the defendant moved for its dismissal upon the ground that the statute was void on its face. The trial court granted the motion, the action was dismissed and the People have appealed.
The People have cited a number of decisions from other states which would appear to be somewhat contrary to the rule laid down in the Talley case. An examination of the ordinance involved in the Talley ease reveals that the only substantial difference between that enactment and section 12049 of the Election Code is that the latter statute is confined to circulars or handbills by which it is sought to influence the result of elections, while the ordinance involved in the Talley case applied to handbills or circulars generally. It is to be noted that there is nothing in either enactment by which it is sought to define the type of statement or utterance that is prohibited. As the enactment is worded, it would be as much a violation to issue a handbill laudatory of a candidate as one that sought to damage his reputation. This court is unable to find sufficient distinction between the distribution of handbills generally and the distribution of handbills concerning elections to justify departure from the rule laid down by the United States Supreme Court.
It is our opinion, therefore, that the municipal court was entirely justified in holding that the statute was void on its face. Therefore, based upon the rule in the Talley case, the order is affirmed.