Summary
In Columbus v. De Long (1962), 173 Ohio St. 81, this court held that an ordinance which made it an offense "for a prostitute merely to wander about the streets is too indefinite, restrictive and liberty depriving to represent a proper and authorized exercise of the police power and is invalid in such respect."
Summary of this case from Columbus v. ThompsonOpinion
No. 37066
Decided January 31, 1962.
Criminal law — Ordinance — Making mere wandering about the streets by a prostitute an offense — Validity.
Section 2343.18 of the Ordinances of the City of Columbus making it an offense, punishable by imprisonment, for a prostitute merely to wander about the streets is too indefinite, restrictive and liberty depriving to represent a proper and authorized exercise of the police power and is invalid in such respect.
APPEAL from the Court of Appeals for Franklin County.
On this appeal from a judgment of the Court of Appeals for Franklin County, the validity and constitutionality of Section 2343.18 of the Ordinances of the City of Columbus are challenged. It is alleged by the defendant, the appellant herein, and conceded by the city, the appellee herein, that such ordinance is solely involved. It reads as follows:
"No prostitute, lewd woman, or any female inmate of a disorderly house shall be found wandering about the streets or frequenting restaurants or bars where alcoholic beverages are sold or consumed, or in hotels or other places of public resort, or shall be employed as an entertainer or waitress in any such place in this city."
The affidavit filed against defendant in the Columbus Municipal Court, in its material parts, contains this language:
"Robert Shoaf being first duly cautioned and sworn, deposeth and saith that one Edith Delong on or about the 28th day of April, A.D., 1960, at the city of Columbus, county of Franklin, and state of Ohio, did unlawfully being a known prostitute walk in the area of 9th Long and Washington Long [Streets] for the purpose of soliciting to engage in prostitution, contrary to the ordinance of said city in such cases made and provided, and further deponent says not."
Defendant was tried, convicted and sentenced to 90 days' imprisonment, and the judgment was affirmed by the Court of Appeals.
The cause is now in this court on an appeal as of right and by reason of the allowance of a motion to certify the record.
Mr. Russell Leach, city attorney, and Mr. Bernard T. Chupka, for appellee.
Mr. John L. Francis and Mr. Fred A. Culver, for appellant.
The affidavit filed against the defendant must be governed and limited by the ordinance on which it is predicated, and such affidavit is framed under the part of the ordinance relating to a "prostitute * * * wandering about the streets."
Undoubtedly, in the exercise of the police power, a municipality may adopt and enforce ordinances designed to inhibit or curtail the illicit activities of prostitutes, but such ordinances should be reasonably specific, and, in our view, the ordinance in controversy, as worded, is too indefinite, restrictive and liberty depriving to constitute a valid use of the police power. Compare State v. Ashe, 202 N.C. 75, 161 S.E. 709.
Since the dictionary and commonly accepted definition of the term, "wandering," is, "to move about without a fixed course, aim, or goal," such definition excludes an objective on the part of a prostitute to solicit customers and ply her trade, and to eliminate that practice is and should be the purpose of statutes and ordinances directed against prostitutes. After all, a prostitute, no matter how reprehensible her mode of life, is a human being with rights protected by the Constitution, and by merely "wandering," without more, she commits no criminal offense. A suspicion of prospective misconduct is hardly enough.
As stated in 15 Ohio Jurisprudence (2d), 253, Section 20, penal statutes or ordinances are to be interpreted strictly against the state or a municipality and liberally in favor of an accused.
We are aware of the cases of Morgan, Supt., v. Nolte, 37 Ohio St. 23, 41 Am. Rep., 485, and Welch v. City of Cleveland, 97 Ohio St. 311, 120 N.E. 206, but we think the instant case poses a somewhat different question from that decided in the cases cited, principally because of the terminology of the ordinance in controversy.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for the defendant.
Judgment reversed.
MATTHIAS, BELL and O'NEILL, JJ., concur.
WEYGANDT, C.J., and TAFT, J., dissent.
HERBERT, J., not participating.
The lower courts relied on the following decisions which the defendant insists are either distinguishable or should now be overruled.
In the syllabus in the case of Morgan v. Nolte, 37 Ohio St. 23, this court held:
"1. The only limitations to the creation of offenses by the General Assembly are the guaranties contained in the Bill of Rights.
"2. These guaranties are not infringed by Section 2108 of the Revised Statutes, which authorizes cities and villages to provide for the punishment of known thieves, pickpockets, watch stuffers, etc.
"3. An ordinance under this statute, providing for the punishment of any known thief found in the municipality, is valid."
And in the opinion it was said:
"In such cases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the statute creating the offense to suppress."
In the case of Welch v. Cleveland, 97 Ohio St. 311, the decision in the Nolte case, supra, was approved and followed.
And in the case of Youngstown v. Aiello, 156 Ohio St. 32, the decisions in the Nolte and Welch cases were approved and followed, and in the fifth paragraph of the syllabus it was held:
"5. The offense of `being a suspicious person' does not consist of particular acts, but of a mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the ordinance creating the offense to suppress. ( Morgan, Supt., v. Nolte, 37 Ohio St. 23, approved and followed.)"
Under the provisions of the ordinance in the instant case it was necessary to prove two facts concerning this defendant. The first was that she was a "prostitute, lewd woman, or any female inmate of a disorderly house." There is nothing in this language not completely understandable by an adult of normal intelligence.
Second, under the affidavit it was necessary to prove that the defendant was "found wandering about the streets." Especially is the use of the word "wandering" criticised. However, the word is so frequently and generally used as to leave no doubt as to its meaning. In Webster's Third New International Dictionary appears the definition, "to move about without a fixed course, aim or goal." And in the Oxford Dictionary the word is defined to the same effect, "to move hither and thither without fixed course or certain aim; to be (in motion) without control or direction; to roam, ramble, go idly or restlessly about * * *." Hence, it is difficult to find a substantial basis for the defendant's contention that under the provisions of this ordinance she is prohibited from being on the streets for even a legitimate purpose such as going to stores to purchase necessary food or clothing. Of course the defendant can not be deprived of the right to be on the streets for a legitimate purpose such as going to stores to purchase necessary food and clothing, but under no concept of the word "wandering" could the defendant or any other reasonable person be misled into considering this as aimless moving about the streets with no definite destination or lawful purpose in mind.
In view of its presumptive constitutional validity, it would seem that the lower courts were correct in refusing to hold that the ordinance is "indefinite, restrictive and liberty depriving" in simply and plainly prohibiting a prostitute from going about public streets with no definite destination in mind and with no objective except to violate the law by indulging in the crime of prostitution.
The judgment of conviction should be affirmed.
If we give to the word "wandering" what the majority opinion refers to as the "dictionary and commonly accepted definition," I would have considerable doubt as to the validity under our Constitution of the ordinance involved in the instant case. Furthermore, we are confronted by the fact that the affidavit involved in the instant case charges that defendant "did * * * walk * * * [on certain streets] for the purpose of soliciting to engage in prostitution * * *." Such a charge is wholly inconsistent with any moving "about without a fixed course, aim or goal."
Undoubtedly, the word "wandering," standing alone, may have the meaning ascribed to it in the majority opinion. However, that word appears with other significant words in the ordinance involved in the instant case. In my opinion, a reading of that ordinance quite clearly indicates a legislative intent that the words "wandering about the streets" were intended to mean (as the city apparently recognized when the affidavit involved in the instant case was prepared) walking on the streets for the purpose of soliciting or engaging in prostitution. Although perhaps not expressed, a legislative intent to require proof of such a purpose in so walking can reasonably be implied from the words used in the ordinance. If such a legislative intent can reasonably be implied, any question as to the constitutional validity of the only part of the ordinance involved in the instant case is eliminated. Unlike in State v. Jacobellis (1962), 173 Ohio St. 22, such an implied legislative intention will not be contrary to any expressed intention of the legislative body indicated by the history of the legislation involved.