City of Cincinnati v. Coates, s. 69-116

Decision Date28 January 1970
Docket NumberNos. 69-116,s. 69-116
Citation255 N.E.2d 247,21 Ohio St.2d 66
Parties, 50 O.O.2d 161 CITY OF CINCINNATI, Appellee, v. COATES, Appellant. CITY OF CINCINNATI, Appellee, v. HASTINGS, Appellant. CITY OF CINCINNATI, Appellee, v. SAYLOR, Appellant. CITY OF CINCINNATI, Appellee, v. ADAMS, Appellant. CITY OF CINCINNATI, Appellee, v. WYNER, Appellant. - 69-120.
CourtOhio Supreme Court

Syllabus by the Court

A city ordinance making it 'unlawful for three or more persons to assemble * * * on * * * sidewalks * * * and there conduct themselves in a manner annoying to persons passing by' is not vague or uncertain but is, on its face, sufficiently clear to inform a person of common intelligence of the nature of the acts prohibited by the ordinance.

William A. McClain, City Solicitor, Ralph E. Cors and A. David Nichols, Cincinnati, for appellee.

Beckman, Lavercombe, Fox & Weil and Bernard C. Fox, Cincinnati, for appellants.

CORRIGAN, Judge.

We are without the advantage of a bill of exceptions in these appeals from convictions in the Hamilton County Municipal Court for violating Section 901-L6 of the Cincinnati Code of Ordinances. The Court of Appeals for Hamilton County affirmed the convictions, and the causes are before this court pursuant to the allowance of motions to certify the records.

The ordinance in question 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.'

With one exception, the separate affidavits upon which the warrants of arrest were based charged that each defendant 'being one of a group of more than two persons assembled on the sidewalk on or about April 11, 1968, at and in the city of Cincinnati, Hamilton County and state of Ohio, did unlawfully conduct himself in a manner annoying to persons passing by contrary to and in violation of Section 901-L6 of the Code of Ordinances of the City of Cincinnati.'

In case No. 69-116, the affidavit charged defendant 'on Dec. 7, 1967, did unlawfully loiter on the sidewalk at 500 Main with 6 other persons and there did conduct himself in a manner annoying to persons passing by * * *.'

We are urged to declare this ordinance to be in violation of the First and Fourteenth Amendments to the Constitution of the United States and Section 3, Article I of the Ohio Constitution, for the reasons that it is vague and imprecise as to what conduct is proscribed. A claim is also made that the affidavits do not contain all the material elements to charge an offense under said ordinance.

The First Amendment to the U. S. Constitution provides, in part:

'Congress shall make no law * * * abridging * * * the right of the people peaceably to assemble * * *.'

Section 3, Article I of the Ohio Constitution, provides, in part:

'The people have the right to assemble together, in a peaceable manner * * *.'

This right of assembly, granted by both state and federal constitutions, contemplates that it be asserted and enjoyed in a peaceable manner. The right delineated certainly does not include the contravening of other rights of other persons. The affidavits under scrutiny here charge assembly and a course of conduct '* * * annoying to persons passing by * * *.' Without a bill of exceptions we do not know what the conduct was which was considered annoying.

Could it have been the interrupting or interfering with the free, unimpeded passage, the use of and enjoyment of the public sidewalk or street by other persons?

Could it have been an intrusion upon the privacy of persons using the public sidewalk or street by accosting and seeking to deliver to such persons written or printed messages, papers, pamphlets, cards or books?

Could it have been an intrusion upon the privacy of persons to impart an oral message by blocking or otherwise seeking to detain persons in the free use of the public sidewalks or streets?

On the state of the record before us, we will go to our rewards without knowing.

As to the contention that this ordinance is imprecise, vague and indefinite, we do not agree. Certainly, crime must be defined with certainty and definiteness, which requirements are elements of due process. Persons charged with violations of penal statutes or ordinances are not required to speculate as to the meaning of such legislation. If the provisions of an ordinance are so vague that persons of common intelligence must guess as to their meaning, then an essential of due process is lacking. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.

The ordinance prohibits, inter alia, 'conduct * * * annoying to persons passing by.' The word 'annoying' is a widely used and well understood word; it is not necessary to guess its meaning. 'Annoying' is the present participle of the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.

We conclude, as did the Supreme Court of the United States in Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182, in which the issue of the vagueness of a statute was presented, that the ordinance 'clearly and precisely delineates its reach in words of common understanding. It is 'a precise and narrowly drawn regulatory statute (ordinance) evincing a legislative judgment that certain specific conduct be * * * proscribed."

Although we conclude that the meaning of the words used in the ordinance is clear and that the standard of conduct which it specifies is not dependent upon each complainant's sensitivity, we are unable to apply it to the facts in this case because of the absence of facts in the record before us.

We find no merit in defendants' claim that the affidavits herein do not contain all the material elements to charge an offense under this ordinance.

The judgments of the Court of Appeals are affirmed.

Judgments affirmed.

TAFT, C. J., and MATTHIAS and SCHNEIDER, JJ., concur.

C. WILLIAM O'NEILL, HERBERT and DUNCAN, JJ., dissent.

HERBERT, Judge (dissenting).

There being no bill 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, 67...

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8 cases
  • American Broadcasting Co., Inc. v. Blackwell
    • United States
    • U.S. District Court — Southern District of Ohio
    • September 26, 2006
    ...Court of Ohio affirmed the convictions, finding that the ordinance was "precise and narrowly drawn." City of Cincinnati v. Coates, 21 Ohio St.2d 66, 69, 255 N.E.2d 247 (1970). The U.S. Supreme Court reversed, holding the ordinance was unconstitutionally vague because it subjected the right ......
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    ...the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate. 21 Ohio St.2d 66, 69, 255 N.E.2d 247, 249. The Supreme Court rejected the Ohio Supreme Court's simple reliance on a dictionary meaning. The Court found two closely rela......
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