Ex Parte Trafton , 271 S.W.2d 814 ( 1954 )

WOODLEY, Judge.

This is an appeal from the order of District Judge Charles O. Betts refusing to discharge appellant Trafton and remanding him to the custody of the Chief of Police of Austin.

The charging part of the complaint under which appellant was convicted and fined in the Corporation Court alleged that he drove an automobile on an Austin street and “ * * * did then and there unlawfully drive and operate said vehicle with a defective muffler attached thereto, and in constant operation, thereby causing excessive and unusual noise.”

Appellant aptly states the issue for our determination as follows:

“The sole question presented here is the constitutionality and validity of Article 797 of the Penal Code and Section 134(a) of Article 6701d,.V.A.C.S., the penal muffler laws of Texas, which . appellant contends are unconstitutional, void, and inoperative for indefiniteness, in that it is impossible for a person of normal, ordinary intelligence to ascertain from, those laws, or any other written law of the state, the amount or character of exhaust noise or smoke which is permissible and which is prohibited.”

' The question has not been previously before this court but has been determined contrary to appellant’s contention by our civil courts in the very recent case of Department of Public Safety v. Buck, Tex.Civ.App., 256 S.W.2d 642 (writ refused).

As suggested, this court is ;vested with the authority to determine the validity of the statutes under attack as criminal statutes and is not bound by the holdings of our sister courts exercising civil jurisdiction. Such holdings are, however, persuasive and are entitled to our careful consideration.

Appellant points out that the Court of Civil Appeals, in the Buck case, held that any ordinary and interested person would have no difficulty in determining whether or not an excessive and unusual noise accompanied the operation of a motor vehicle, but did not attempt to define the legal standard for determining the exact meaning of the general term “excessive and unusual noise”. He urges with much force the absence of a standard by which it may be determined whether the noise of a particular motor is excessive or unusual, suggesting that since all motor vehicles make some noise it is not possible for a person of ordinary intelligence to ascertain with reasonable certainty from the statutes mentioned, or from other written law of the state, how much noise constitutes “excessive and unusual noise” as that term is used in the statutes.

A resort to other penal statutes regarding the subject of motor vehicles and mufflers may furnish such a standard.

Art. 797a, P.C., makes it an offense to operate on a public highway a motor vehicle or motorcycle whjch is not equipped with a muffler, or which is equipped with a muffler cut-out.

Art. 797b, P.C., defines a “muffler cutout” and a “muffler”, the latter definition being as follows:

“A muffler within the meaning of this Act is a device through which the escaping gases of the motor of a motor vehicle or motorcycle pass, designed to muffle or minimize the noise produced by the operation of such motor.”

“Minimize” is defined by Webster as “to reduce to the smallest possible amount or degree”.

The extent to which the exhaust noises of a motor may be reduced without serious impairment of the efficiency of the motor is a question for experts in that field. The law requiring the motor vehicle to be equipped with a muffler designed to reduce' exháust noises ■ to the smallest possible amount must be construed in the light of the fact that some noise is inevitable if the motor is operated, but it may be reduced to a certain minimum by the use of a device designed for that purpose and known as a muffler, without seriously interfering with its efficiency.

The requirements of Art. 797a and 797b, P.C., are that the motor vehicle be equipped with a device designed to reduce the noise produced by the operation of such motor to the smallest possible amount and through which device the escaping gases of the motor must pass.

The statutes under attack require that every motor vehicle must have such a device in good working order and in constant operation “to prevent excessive or unusual noise”.

We conclude that the term “excessive and unusual noise” as used in Arts. 797, P.C., and Section 134(a) of Article 6701d, V.A.C.S., refers to noise in excess of the usual noise which would necessarily result from the operation of a motor when reduced to the minimum by a muffler such as is defined in Art. 797b, P.C., in good working order and in constant operation.

We overrule the contention that the statutes in question are invalid for indefiniteness.

The judgment is affirmed.