City of Cincinnati v. Coates

Herbert, J.,

dissenting. There being no hill of exceptions in these cases, the sole and proper question raised by these appeals is the constitutionality, on its face, of Section 901-L6 of the Cincinnati Code of Ordinances. It appears to be well established that the question of the constitutionality of a statute or ordinance is judicially cognizable under these circumstances. Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329, 55 N. E. 2d 629; Blacker v. Wiethe (1968), 16 Ohio St. 2d 65, 242 N. E. 2d 655. Cf. Castle, v. Mason (1915), 91 Ohio St. 296, 110 N. E. 463; State, ex rel. Herbert, v. Ferguson (1944), 142 Ohio St. 496, 52 N. E. 2d 980; State, ex rel. Speeth, v. Carney (1955), 163 Ohio St. 159, 126 N. E. 2d 449.

Defendants were convicted of violating Section 901-L6 of the Cincinnati Code of Ordinances, which provides:

“It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both.” (Emphasis added.)

Since the syllabus announced by the majority does not contain all of the pertinent language of the ordinance under consideration, I am respectfully constrained to characterize it as dicta. Therefore, this dissent should not be construed as necessarily encompassing that syllabus.

The defendants claim that the ordinance violates the Constitution of the United States in that it is vague, indefinite and imprecise as to what conduct is prohibited.

The United States Supreme Court, in the case of United States v. Petrillo (1947), 332 U. S. 1, 91 L. Ed. 1877, stated that while the Constitution of the United States does not require impossible standards of certainty in statutes defining crimes, the test is whether or not the law is so designed that persons of ordinary intelligence, who would be law abiding, can determine with reasonable precision *71what conduct it is their duty to avoid. Connally v. General Construction Co. (1926), 269 U. S. 385, 70 L. Ed. 322; Cramp v. Board of Public Instruction (1961), 368 U. S. 278, 7 L. Ed. 2d 285; Winters v. New York (1948), 333 U. S. 507, 92 L. Ed. 840. The rule is also well settled that penal laws must be strictly construed and are to be interpreted strictly against the state and liberally in favor of the accused. See Mentor v. Giordano (1967), 9 Ohio St. 2d 140, 224 N. E. 2d 343; State v. Conley (1947), 147 Ohio St. 351, 71 N. E. 2d 275; State v. Meyers (1897), 56 Ohio St. 340, 47 N. E. 138; Turner v. State (1853), 1 Ohio St. 422; Hirn v. State (1852), 1 Ohio St. 15.

Beading the instant ordinance in accordance with those rules of construction, and even assuming that what will constitute “annoying” conduct is sufficiently definite so as to be reasonably understood by all men who would be law abiding citizens, it is apparent that conduct which, in fact, is “annoying,” is not unlawful if it is conduct at a “public meeting of citizens.” Thus, the threshold question before us should be whether the ordinance is sufficiently definite and precise to inform a group of three or more citizens that their particular gathering is or is not such a “meeting” and, hence, is or is not excepted from the operation of the ordinance.

There appears to be little doubt that the language, “except at a public meeting of citizens,” was written into the ordinance to offset potential claims that the ordinance affronted the constitutional right of peaceful assembly. The United States Supreme Court has spoken often in this area and has declared that stricter standards of permissible statutory vagueness should be applied to any statute or ordinance which has a potentially inhibiting effect upon rights guaranteed by the First Amendment to the Constitution of the United States. Smith v. California (1959), 361 U. S. 147, 4 L. Ed. 2d 205; Cramp v. Board of Public Instruction, supra (368 U. S. 278); Winters v. New York, supra (333 U. S. 507); Thornhill v. Alabama (1940), 310 U. S. 88, 84 L. Ed. 1093; Scull v. Virginia, ex rel. Committee on Law Reform and Racial Activities (1959), 359 U. S. 344, *723 L. Ed. 2d 865; Stromberg v. California (1931), 283 U. S. 359, 75 L. Ed. 1117; Wright v. Georgia (1963), 373 U. S. 284, 10 L. Ed. 2d 349. In those cases, the United States Supreme Court was concerned with “the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally he punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and the constitutionally impermissible applications of the statute.” Wright v. Georgia, supra, 292.

Even if it is assumed that conduct which is reasonably calculated to be “annoying” is well known to reasonable men who would be law abiding citizens, the ordinance nevertheless fails to define the boundary between that assemblage which will constitute a “public meeting of citizens” and that which will not be considered such a meeting. For example, do only groups which have licenses constitute a public meeting? Must some form of notice be given before a meeting may be considered a public meeting? Who may convene a public meeting? Is a public meeting one held only in a public place? Must a meeting be held during certain hours in order to be “public”? May a public meeting be called only for certain purposes? Is it clear that an assemblage of three or more citizens on a public sidewalk can not constitute a public meeting of those citizens? In short, although the ordinance clearly excepts “annoying” behavior “at a public meeting of citizens,” there is no indication as to what conduct was included in the very words which announce that exception.

In my opinion, where an ordinance inflicts a criminal penalty for certain conduct, but excepts such conduct from its operation under certain circumstances, both the proscribed conduct and the excepting circumstances must be designated with sufficient precision to meet constitutional requirements regarding vagueness and uncertainty. The failure of the ordinance under consideration to meet this test renders it unconstitutional on its face.

DuNcaN, J., concurs ip the foregoing dissenting opinion,