City of Portland v. Goodwin

• Decision Date: 18 October 1949
• Citation: 187 Or. 409,210 P.2d 577
• Parties: CITY OF PORTLAND <I>v.</I> GOODWIN AND GOODWIN
• Court: Oregon Supreme Court

187 Or. 409

210 P.2d 577

CITY OF PORTLANDv.

GOODWIN AND GOODWIN

Supreme Court of Oregon.

Argued September 13, 1949.

Reversed and remanded October 18, 1949.

Petition for rehearing denied November 22, 1949.

ON THE MERITS

Arrest — Merely on suspicion

1. Ordinance which constitutes authority to arrest merely upon suspicion would be invalid.

Municipal corporations — Violation — Public tort

2. Violation of municipal ordinance is not a crime but is at most a public tort, quasi criminal in character.

Criminal law — Statute — Police power — Indefiniteness

3. A criminal statute passed pursuant to the police power should be stricken down for indefiniteness only if it cannot be saved wholly or in part by judicial application of rules of statutory construction.

Constitutional law — Statute — Presumption — Constitutional

4. A statute is presumed to be supported by facts known to legislative body and is also presumed to be constitutional.

Constitutional law — Statute — Manifestly unreasonable

5. Courts will declare statute invalid only if manifestly unreasonable, and reasonableness is primarily a matter for legislative judgment.

Constitutional law — Unconstitutionality — Beyond a reasonable doubt

6. Unconstitutionality of a statute must be established beyond a reasonable doubt.

Constitutional law — Reasonable interpretation

7. If an enactment can be given any reasonable interpretation consistent with its validity, such interpretation should be adopted.

Constitutional law — Statute — Inaplicable — Unconstitutional

8. A statute will be held inapplicable in certain cases when it would be unconstitutional if held applicable.

Constitutional law — Statute — Susceptible of two constructions

9. Where statute is susceptible of two constructions, one of which would render it constitutional and the other unconstitutional, the courts will adopt the former.

Municipal corporations — City ordinance — Complaint — Offense was willful — Willfullness not expressly made an element of the offense

10. Under city ordinance providing that it shall be unlawful for any person to roam or be upon any street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, complaint properly charged that the offense was willful, although willfullness was not expressly made an element of the offense.

Municipal corporations — Ordinance — Sensible construction

11. An ordinance should receive a sensible construction, and its terms should be so limited in application as not to lead to absurd or unjust consequences, and it will be presumed that the lawmakers intended to except from its operation all actions prohibition of which would be absurd.

Municipal corporations — City ordinance — Intent alone without an overt act

12. City ordinance making it unlawful for any person to roam or be upon any street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, was not invalid as making intent alone without an overt act, a crime.

Municipal corporations — City ordinance — "Lawful purpose" — Not indefinite

13. Under city ordinance making it unlawful for a person to roam or be on a public street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, words "lawful purpose" were not so indefinite as to invalidate ordinance.

Municipal corporations — Ordinance — "Disclose"

14. Under ordinance making it unlawful for any person to roam or be upon a street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, the word "disclose" as employed therein means to cause to appear, to reveal.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Disclose".

Municipal corporations — Ordinance — Disclosed purposes — Burden on city

15. Under city ordinance making it unlawful for any person to roam or be upon a street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, ordinance deals with disclosed purposes and not with those secretly entertained, and the city must establish proof beyond a reasonable doubt.

Municipal corporations — Ordinance not unconstitutional as making legality of a person's action depend upon opinion of policeman

16. Under city ordinance making it unlawful for a person to roam or be upon a street between 1:00 and 5:00 A.M. without

having and disclosing a lawful purpose, ultimate issues tried by court in determining guilt or innocence of arrested person are identical to issues which determine whether arrest was lawful, so that ordinance is not unconstitutional as making legality of a person's action depend upon opinion of a policeman.

Municipal corporations — Ordinance — Legality of person's action — Opinion of a policeman

17. A city ordinance making legality of a person's action depend upon the opinion of a policeman would be unconstitutional.

Constitutional law — Statute requiring a person to identify himself

18. There is nothing inherently unconstitutional in a statute requiring a person to identify himself or make a report to a police officer in a proper case.

Municipal corporations — Ordinance — Interrogated person refusal to answer

19. City ordinance making it unlawful for any person to roam or be upon any street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose would not authorize conviction merely because interrogated person refused to answer.

Municipal corporations — Police officers — Right and duty to make inquiry of persons on street

20. Police officers have right and duty to make inquiry of persons on street for purpose of identification and the like.

Constitutional law — City ordinance did not violate Fourteenth Amendment by abridging freedom of locomotion

21. City ordinance making it unlawful for persons to roam or be upon any street between hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose did not violate privileges and immunities clause of the Fourteenth Amendment by abridging freedom of locomotion. U.S.C.A. Const. Amend. 14.

Criminal law — Judicial notice — Crimes of lust and violence generally committed in darkness

22. Supreme Court would take judicial notice that crimes of lust and violence are generally committed under the cloak of darkness.

                  See: 111 A.L.R. 68
                  55 Am. Jur. 446
                  16 C.J.S., Constitutional Law, § 458
                

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Alexander G. Brown, City Attorney, and J. Robert Jordan, Deputy City Attorney, both of Portland, argued the cause for appellant. With Alexander G. Brown on the brief were John F. Reynolds and Virgil H. Langtry, Deputy City Attorneys, of Portland.

David M. Spiegel, of Portland, argued the cause for respondents. On the brief were Lenske, Spiegel & Spiegel, Lenon & Lenon, Green, Landye & Peterson, and Donald S. Richardson, all of Portland.

Before BRAND, Acting Chief Justice, and ROSSMAN, BAILEY, HAY and PAGE, Justices.

Calvin W. Goodwin and Sophia D. Goodwin were convicted of violating an ordinance of the City of Portland making it unlawful for any person to roam or be upon any street between the hours of 1:00 and 5:00 o'clock A.M. without having and disclosing a lawful purpose, and they appealed.

The Circuit Court, Multnomah County, Walter L. Tooze, J., sustained demurrers of the complaint, and the city appealed.

The Supreme Court, Brand, A.C.J., reversed the judgment and held that the ordinance was not unconstitutional.

BRAND, A.C.J.

The issue in this case involves the alleged unconstitutionality of an ordinance of the City of Portland which reads as follows:

"Between the hours of 1:00 and 5:00 o'clock A.M., Pacific Standard time, it shall be unlawful for any person to roam or be upon any street, alley or public place without having and disclosing a lawful purpose." Ordinance No. 76339, Section 16-617.

The defendants are husband and wife. Under the provisions of the ordinance each of them was charged by a complaint in the following language:

"The above named defendant on Sept. 2, 1947, within the corporate limits of the said City of Portland, did wilfully and unlawfully, between the hours of 1 o'clock A.M. and 5 o'clock A.M. Pacific Standard Time, to wit, 4 o'clock A.M., be upon a STREET, to wit, W. Burnside St. at N.W. 17th Avenue, without having and disclosing a lawful purpose."

After trial, upon a plea of "not guilty" each of the defendants was convicted and fined $25 in the municipal court. The defendants appealed to the circuit court where they filed general demurrers to the respective complaints upon the specified ground that they do not state facts sufficient to constitute a crime and that the ordinance is violative of the 14th amendment to the Constitution of The United States and of Sections 1, 20 and 33 of Article I of the constitution of Oregon. The demurrers were sustained and the cases were remanded to the municipal court with directions to dismiss upon the ground that the ordinance is invalid. The city appeals.

In their respective briefs both parties set forth the alleged facts concerning the conduct of the defendants and of the arresting officer, at, and prior to the arrest. All such statements by the parties will be disregarded because they are not based upon any record in this court. Evidence was taken in the municipal court, none in the circuit court and there is, of course, no bill of exceptions here. Our only question relates to the constitutionality of the quoted portion of the ordinance.

In discussing the ordinance our comments are limited to that portion thereof quoted supra and with which alone we are concerned. The defendants contend that the ordinance violates the due process clause of the federal constitution (a) "by being so vague as not to define a crime"; (b) "by making intent alone, without an overt act, a crime"; (c) "by finding a presumption of criminality in innocent acts"; ...