I concur in the judgment herein because, although municipalities may not have authority to punish loiterers as such, the evident purpose and intent of Section 1000 of the Toledo Code as applied to the instant case is to prohibit the *Page 165 presence of any person in premises used for purposes of gambling; and the fact of his presence therein, in the absence of some better reason than merely being there, is sufficient evidence to warrant a conviction under the ordinance.
No claim is made that this section in its application to the facts disclosed by the record is invalid, the only contention made being that, if instead of a comma, a semicolon followed the word "ill-fame," there would exist no ground upon which to contest or avoid the conviction of appellees.
In other words, the proof must be not only that the appellees were in a "gambling house," but also that each of them was loitering therein "without any lawful means of support or without being able to give any satisfactory account of himself"; and to maintain this contention counsel has presented in his argument and brief an analytical discussion of the grammatical construction to be given to this section.
Counsel ingeniously argues orally and in his brief that: "`It' is an idiomatic introduction of an infinitive used as a subject, and is not necessary to a discovery of legislative intent. To arrive at the sentence simplified we take `it' as the simple subject, the passive infinitive `to be found,' and join `it' up with the predicate verb `shall be,' and the predicate adjective `unlawful.'
"We come then to the qualifications of the sentence simplified. `Unlawful,' and `shall be,' are modified by the preposition `for,' and the noun object `person,' which is in turn modified by the adjective `any.'
"So we have now ascertained to what person or classes of persons the ordinance applies, and we now come to a discovery of where the ordinance applies. We find that the passive infinitive `to be found' is modified by two participles, `loitering' and `wandering.' The participle `loitering' is modified by the preposition *Page 166 `about' and the four nouns: `bar-room,' `dram-shop,' `gambling-house' and `house of ill-fame,' the four constituting a prepositional phrase with four objects, and it in turn being modified by the conjunction `or,' which is `and' in the law, and the adjectives `any' and `common.'
"We find the participle `wandering' is modified by the preposition `about,' and the object of the preposition `streets' which in turn is modified by the article `the.'
"So we have now ascertained to whom the ordinance applies, and where; and we come now to a discovery of when.
"We find that the passive infinitive `to be found' is modified by the adverbial prepositional phrases made up of the correlative conjunction `either or' which is modified by the prepositional phrase `by night' and the prepositional phrase `by day'; and the other conjunction `or,' which is modified by the prepositional phrase `without means,' which in turn is modified by the adjective `lawful,' and the prepositional phrase `of support,' which is used as an adjective. The conjunction is also modified by the preposition `without,' the gerund `being' used as the object of the preposition, and the adjective `able,' which in turn is modified by the infinitive `to give,' which modifies all, and is modified by the noun `account,' which is the object of the infinitive, and the adjective `satisfactory,' and the prepositional phrase used as an adjective `of himself.'
"So from all of the foregoing, we must conclude that the ordinance in question applies to a person in any of the enumerated places, and when he is without lawful means of support or without being able to give a satisfactory account of himself."
Appended to the brief is a diagram of the claimed "correct grammatical construction of the questioned section." Assuming as correct the questionable grammatical *Page 167 construction of Section 1000 of the Toledo Code thus advocated, it may be doubted whether any member of the City Council was sufficiently discerning to notice and warn his unheedful comembers of the claimed interpretive consequences that would follow the absence of a semicolon; and except for the unexpurgated clarification so minutely detailed, I would at once have thought, as still I do think, that it was clearly intended to make unlawful the frequenting by any person of premises used for the illegal purpose of gambling.
I cannot therefore agree with counsel for appellees that "the purpose of the present ordinance was to make it possible for the proprietor of any establishment to remove vagrants on his complaint."
Its apparent motivating purpose in regard to gambling houses was to handicap the operation thereof by making it unlawful for persons to be present therein, with no lawful excuse therefor. Any other construction of the ordinance would stamp it as an attempt to help, rather than to hinder, the operation of a gambling house in the conduct of prohibited business, a ridiculous situation, certainly not contemplated or intended by a law-abiding council.