Summary
In Nelson, the profanity occurred in a restaurant which was included in the definition of "public place" and the conviction affirmed.
Summary of this case from Richmond v. City of CorinthOpinion
No. 35655.
November 13, 1944. Suggestion of Error Overruled December 22, 1944.
1. STATUTES.
Generally, penal statutes must be strictly construed.
2. STATUTES.
Courts are required to take a reasonable and common sense view of the evil at which a penal statute is directed and the protection which it is designed to afford and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose although its letter would admit a narrower interpretation.
3. DISORDERLY CONDUCT.
A "public place" within municipal ordinance making it a criminal offense for any person to profanely swear or curse or use vulgar or indecent language in any public place within corporate limits, must be considered as one wherein by general invitation members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily done there.
4. DISORDERLY CONDUCT.
A restaurant was a "public place" within municipal ordinance making it a criminal offense for any person to profanely swear or curse or use vulgar or indecent language in any public place within corporate limits regardless of fact that only white people were admitted.
APPEAL from the circuit court of Adams county, HON. R.E. BENNETT, Judge.
Engle Laub, of Natchez, for appellant.
The appellant was convicted in the circuit court of Adams County, Mississippi, on an affidavit which attempts to charge the offense of obscenity in a public place. It will be noted that the affidavit does not charge the obscene language was used in the presence of two or more persons, as required by Section 1059, Code of 1930 (being Section 2291 of the Code of 1942). The ordinance of the city of Natchez introduced in evidence bears date of May 25, 1926, and reads as follows: "Section 1: Be it ordained by the Mayor and Aldermen of the City of Natchez, in council convened, that if any person shall profanely swear or curse, or use vulgar or indecent language, or be drunk in any public place within the corporate limits of the City of Natchez, he shall, upon conviction thereof, be fined not more than one hundred dollars." The ordinance is in conflict with the codal provision respecting this offense in that the ordinance does not require the offense to be committed in the presence of two or more persons.
The charter of the City of Natchez is incorporated in an act to amend and reduce into one act the act incorporating the City of Natchez and several acts amendatory thereto, approved January 29, 1877, and as amended by act approved February 10, 1888. Section 25 of the charter of the City of Natchez provides: "Sec. 25. Be it further enacted, That the said Mayor and Aldermen, in council, shall have power to pass all ordinances and by-laws, not inconsistent with the laws of the United States, and of this State, which may be necessary or proper to carry into effect the powers delegated to them in this Act, with power also to prescribe, in such ordinances, such fines and forfeitures for their violation, as may be expedient, not exceeding five hundred dollars for each offense and imprisonment not exceeding ninety days, for a single offense; and all such ordinances to repeal and amend at pleasure."
From the foregoing it is apparent that the ordinance itself is in conflict or inconsistent with the state law, and, therefore, the City of Natchez had no authority to adopt such an ordinance. The ordinance is objectionable for the further reason that it was not adopted in the manner and form provided by the laws of Mississippi for the adoption of the ordinance relating to criminal offenses. Section 2549 of the Code of 1930 (being Section 3660 of the Code of 1942) is identical in language with Section 9540 of Hemingway's Code of 1917, which provides the method of making offenses against the state offenses against a municipality and fixes the method of so doing by the adoption of a general ordinance and not by the adoption of a special ordinance. Had the City of Natchez adopted a general ordinance by the method provided in the Code, then the Code provisions, as set out in Section 1059, Code of 1930, would have been written into the municipal law; however, instead of adopting a general ordinance the City of Natchez undertook to take care of the situation by a separate ordinance and when the city undertook to do this, then the language of the separate ordinance should have been consistent and in accord with the language in the Mississippi Code.
There is the further objection to this ordinance in that it was never published as required by the law of Mississippi relating to municipalities nor by Section 41 of the charter of the City of Natchez which provides that all ordinances passed by the Mayor and Aldermen shall within ten days after the passage thereof be published in one or more newspapers in said city. When the ordinance book containing this ordinance was offered in evidence, its introduction was objected to because it did not appear in the minutes and the enactment of the ordinance had not been properly established. The prosecution understood this to mean that the ordinance had not been published and that it did not appear in the minutes. The Court held up its ruling to allow counsel an opportunity to get the minutes and find out if the ordinance appeared in the minutes and if it had been published. An amendment to the stenographer's notes shows that the court adjourned for several hours to allow counsel for city to produce the minutes of the City of Natchez to show that the ordinance appeared in the minutes and was adopted, but on the court reconvening the city did not offer the minutes and no minutes were offered in evidence. The point we make here is that the city having undertaken to meet the objection by producing the minutes should have been required to produce the minutes and was precluded from relying on any presumption that the ordinance was properly adopted.
Objection was made to the introduction of the ordinance for the above reasons and the objection was overruled by the court.
The place where the alleged obscene language was used was not a public place.
Madison Products Co., Inc., et al. v. Coler, Commissioner of Public Welfare et al., 152 N.E. 264; State v. Colgan, 82 N.J.L. 307, 108 A. 108, 109; Hopwood v. City of Pittsburgh, 152 Pa. Super. 398, 33 A.2d 658; Century Dictionary, "public"; New International Dictionary, "public"; 32 Cyc. 748; 35 Words and Phrases 271; 1944 Cumulative Annual Pocket Part to 35 Words and Phrases, p. 35.
The construction given by the lower court to the phrase "public place" in view of the facts is tantamount to a denial of the equal protection of the laws.
13th and 14th amendments to the Federal Constitution.
Gerard H. Brandon, of Natchez, for appellee.
The ordinance was admissible in evidence without proof of publication.
Code of 1942, Sec. 3658.
The ordinance was not invalid because different from a similar state statute.
37 Am. Jur. 787-791, Municipal Corporations, Sec. 165.
We submit that under the rule announced in the foregoing text, to the attention of which we invite the court, the state statute neither permits a thing to be done which is specifically authorized to be done by the city ordinance nor does the state statute prohibit the doing of a thing which has been permitted by the city ordinance. Conversely, the city ordinance does not attempt to prohibit a thing specifically authorized or licensed by the state, nor does the city ordinance permit or license the doing of anything expressly prohibited by the state statutes. Hence there is no merit to the contention made by the appellant.
The restaurant was a public place though negroes and Chinamen were not served therein. If this court should adopt the narrow definition of what is a "public place" sought to be invoked by counsel for appellant, there would be few places in the state of Mississippi, other than the public streets and highways, which would fall within that definition, in view of the race segregation statutes adopted by the legislature of the State of Mississippi, and in view of the prevailing policy in this state, recognized and practiced as advisable by both races, under which separate and distinct accommodations are afforded to citizens of different races. People of the white or Caucasion race constitute a very large body of the population in Mississippi and hence a place which serves without other restrictions all persons of the white race who choose to be served therein is a public place. If the restaurant, serving as it did only persons of the white race, was not a public place, then our schools are not public places, our recreation grounds are not public places, the hotels in this state are not public places, no restaurant in the state is a public place, our churches and municipal auditoriums are not public places. Indeed, if the rule of exclusion be carried to embrace segregation, our court houses are not public places, for therein separate places are set aside for occupancy by our colored citizens and separate places are set aside for our white citizens. If the theory sought to be advanced by our opposing counsel should be established, then no railroad car, street car, or bus could be held as a public place in view of the segregation statutes of this state. A public place is any place so situated that what passes there can be seen by a considerable number of persons, if they happen to look.
Orf v. State, 147 Miss. 160, 113 So. 202; 2 Bouvier's Law Dictionary, 1914 Edition, p. 2765.
The City of Natchez has an ordinance which makes it a criminal offense against the city for any person to profanely swear or curse or use vulgar or indecent language in any public place within its corporate limits. Appellant was charged with having violated this ordinance in a public place, namely, in the Splendid Cafe at the intersection of Franklin and Union Streets. The charge was amply proved.
There are differences in the literal purport of the term "public place," and appellant contends that when the rule of strict construction is applied to the penal ordinance in question, it must be held to include only such places as are owned by the public and controlled or superintended by public agents, not a place privately owned and operated, such as is the restaurant wherein the conduct here complained of occurred.
Certainly, the general rule is that penal statutes must be strictly construed. At the same time courts are required to take a reasonable and common-sense view of the evil at which a statute is directed and the protection which it is designed to afford; and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose, although its letter would admit a narrower interpretation. Bobo v. Commissioners, 92 Miss. 792, 812, 46 So. 819; State v. Stigler, 179 Miss. 276, 281, 175 So. 194; 50 Am. Jur., Statutes, Secs. 415-417, pp. 439-441; and Sec. 59 C.J., p. 118, note 37(b).
Looking then to the evil at which the ordinance is directed and the protection which it is designed to afford, a public place within the ordinance, and as applied to an enclosure, room or building, must be considered as one wherein, by general invitation, members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily there done. 35 Words Phrases, Perm. Ed., pp. 258-273, and compare 27 C.J., p. 985, sec. 92. An eating house is a public place, Neal v. Com., 22 Grat. (Va.), 917, 918, and a restaurant is an eating house under another name. It is within this definition that a church is held to be a public place. Orf v. State, 147 Miss. 160, 113 So. 202. And so a barber shop. Cochran v. State, 30 Ala. 542.
Appellant says further that the restaurant in this case could not be a public place, because only white people are admitted there. Even so, there are restaurants where only colored people are admitted. Likewise as to every hotel and schoolhouse in this state and most of the churches and theatres, and these, whether white or colored, are within statutes such as this. If the ordinance in question had as its purpose the protection only of places where everybody of every race assembled or attended, there would have been but little need in enacting it at all. It has no such restricted purpose or meaning.
There are several other assignments, but we do not deem them of importance and none of them are maintainable.
Affirmed.