City of Columbus v. Thompson

• Decision Date: 03 February 1971
• Docket Number: No. 70-334,70-334
• Citation: 25 Ohio St.2d 26,266 N.E.2d 571,54 O.O.2d 162
• Parties: , 54 O.O.2d 162 CITY OF COLUMBUS, Appellee, v. THOMPSON, Appellant.
• Court: Ohio Supreme Court

Page 26

25 Ohio St.2d 26

266 N.E.2d 571, 54 O.O.2d 162

CITY OF COLUMBUS, Appellee, v. THOMPSON, Appellant.

No. 70-334.

Supreme Court of Ohio.

Feb. 3, 1971.

Syllabus by the Court

A provision of a city ordinance, making it unlawful for any suspicious person to be in the city and specifying that 'any person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself' shall be deemed a suspicious person, violates the due-process clause of the Fourteenth Amendment, in that it lacks ascertainable standards of guilt and is so vague, imprecise and indefinite that men of common intelligence must necessarily guess at its meaning and differs as to its application.

Defendant-appellant, Thomas A. Thompson, and another person were observed by a control tower operator at the Port Columbus Airport at about 4:00 a. m. on December 20, 1968, pushing automobile tires toward a car in the airport parking lot. The two men placed three tires alongside the car and then entered the car. Some minutes later, a police officer, who had been summoned by the control tower operator, approached the two men who were still seated in the parked car. The officer asked them what they were doing and was told that they had been looking for a set of keys which had been lost in the parking lot. They denied rolling the tires, which were then up against the passenger side of the vehicle in which they were seated, to this car, and an examination of other vehicles in the parking lot failed to reveal any with missing wheels and tires.

The police officer arrested appellant and seized the tires. Subsequently, appellant was charged with being a suspicious person. The affidavit filed by the officer recited that appellant '* * * did unlawfully loiter and wander about a public place, street, to wit: Port Columbus parking lot * * * to wit: Was prowling cars, trying to get into them, and was seen rolling tires from rental car area to side of his car * * *. Sect. 2387.02 G without being able to give a reasonable and satisfactory account of himself, contrary to the ordinance of said city * * *.'

At appellant's trial in Municipal Court, the arresting officer testified that from the time of arrest to the date of trial no one had claimed the seized tires and there had been no report that they were stolen.

Appellant's motion to dismiss the affidavit on the ground that the Columbus suspicious person ordinance, Section 2387.02(G), was unconstitutional was overruled by the trial court. Appellant was found guilty and sentenced to 60 days in the workhouse and fined $100 and costs.

Upon appeal to the Court of Appeals, appellant renewed his contentions in relation to the constitutionality of the ordinance. That court held the ordinance to be constitutional and affirmed the judgment of the Municipal Court. However, the Court of Appeals found its judgment to be in conflict with a judgment of the Court of Appeals for Cuyahoga County in the case of Cleveland v. Forrest, case No. 28,446, and certified the cause to this court for review and final determination.

John C. Young, City Atty., Thomas S. Erlenbach and John S. Steinhauer, for appellee.

Harris, Lias & Strip and George Wm. Lias, for appellant.

CORRIGAN, Justice.

This cause squarely brings into question the constitutional validity of a portion of the 'suspicious person' ordinance of the city of Columbus. That ordinance, Section 2387.02, as in question here, reads, in part:

'It shall be unlawful for any suspicious person to be in this city. The following shall be deemed suspicious persons:

'* * *

'(g) Any person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself.'

Appellant attacks this provision of the ordinance on several constitutional grounds. He contends that it violates the Fourth and Fifth Amendments and the due-process of the Fourteenth Amendment.

In upholding the constitutionality of the ordinance the Court of Appeals found that the ordinance was authorized by R.C. 715.55 and this court's holdings in Morgan v. Nolte (1881), 37 Ohio St. 23; Welch v. Cleveland (1917), 97 Ohio St. 311, 120 N.E. 206; and Youngstown v. Aiello (1951), 156 Ohio St. 32, 100 N.E.2d 62.

R.C. 715.55 reads:

'Any municipal corporation may provide for:

'(A) The punishment of persons disturbing the good order and quiet of the municipal corporation by clamors and noises in the night season, by intoxication, drunkenness, fighting, committing assault, assault and battery, using obscene or profane language in the streets and other public places to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior.

'(B) The punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch stuffer, ball game player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself.' (Emphasis added.)

In the Morgan case, supra, the statute, which preceded R.C. 715.55, was held to authorize an ordinance providing for the punishment of any known thief found in a municipality, the court stating in its opinion, at page 25:

'The only limitations to the creation of offenses by the legislative power, are the guaranties contained in the bill of rights, neither of which is infringed by the statute in question. It is a mistake to suppose that offenses must be confined to specific acts of commission or omission. A general course of conduct or mode of life which is prejudicial to the public welfare may likewise be prohibited and punished as an offense. Such is the character of the offense in question.'

The ordinance in question in the Welch case, supra, provided that '* * * any person found loitering about any bar room * * * or found wandering about the streets, either by day or by night, without being able to give a reasonable and satisfactory account of himself * * * shall be deemed and held to be a suspicious person.'

It was held in that case that the ordinance was not 'beyond the powers conferred by the home-rule amendment, Article XVIII of the Constitution of Ohio.' In the opinion, the court concluded, at page 316:

'We regard that public policy most salutary and most humane which seeks to prevent crime from occurring rather than to punish it after it has occurred. This seems to be the fundamental purpose of the grant of power underlying the statute and the ordinance. We find no constitutional or statutory objection to the ordinance, and the same is therefore valid.'

In Youngstown v. Aiello, supra, the validity of that city's suspicious person ordinance was at issue. The question presented there, however, was whether the ordinance was properly enacted and apparently there was no attack on the constitutional validity of its content. The opinion of the court did note, in passing, the previous holdings in Morgan and Welch.

We wish to point out that in none of the foregoing cases was the constitutionality of a suspicious person ordinance specifically attacked on the ground that it violated the due-process clause of the Fourteenth Amendment. That question, as indicated above, is now before us.

At the outset, we observe that this court is in accord with the views expressed in Welch that the purpose of such ordinances-to prevent crime-is a salutary one. We are also mindful of the value of such ordinances to law enforcement agencies. Nonetheless, we must determine if the language employed herein, yo promote crime prevention, comports with fundamental due process.

Basic to any penal enactment is the...