City of Columbus v. De Long

• Decision Date: 31 January 1962
• Docket Number: No. 37066,37066
• Parties: , 18 O.O.2d 294 CITY OF COLUMBUS, Appellee, v. DeLONG, Appellant.
• Court: Ohio Supreme Court

Page 81

173 Ohio St. 81

180 N.E.2d 158, 18 O.O.2d 294

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

No. 37066.

Supreme Court of Ohio.

Jan. 31, 1962.

Syllabus by the Court

Section 2343.18 of the Ordinances of the City of Columbus making it an offense, punishable by imprisonment, for a prostitute merely to wander about the streets is too indefinite, restrictive and liberty depriving to represent a proper and authorized exercise of the police power and is invalid in such respect.

On this appeal from a judgment of the Court of Appeals for Franklin County, the validity and constitutionality of Section 2343.18 of the Ordinances of the City of Columbus are challenged. It is alleged by the defendant, the appellant herein and conceded by the city, the appellee herein, that such ordinance is solely involved. It reads as follows:

'No prostitute, lewd woman, or any female inmate of a disorderly house shall be found wandering about the streets or frequenting restaurants or bars where alcoholic beverages are sold or consumed, or in hotels or other places of public resort, or shall be employed as an entertainer or waitress in any such place in this city.'

The affidavit filed against defendant in the Columbus Municipal Court, in its material parts, contains this language:

'Robert Shoaf being first duly cautioned and sworn, deposeth and saith that one Edith Delong on or about the 28th day of April, A.D., 1960, at the city of Columbus, county of Franklin, and state of Ohio, did unlawfully being a known prostitute walk in the area of 9th & Long and Washington & Long [Streets] for the purpose of soliciting to engage in prostitution, contrary to the ordinance of said city in such cases made and provided, and further deponent says not.'

Defendant was tried, convicted and sentenced to 90 days's imprisonment, and the judgment was affirmed by the Court of Appeals.

The cause is now in this court on an appeal as of right and by reason of the allowance of a motion to certify the record.

John L. Francis, Columbus, and Fred A. Culver, Warren, for appellant.

Russell Leach, city atty., and Bernard T. Chupka, Columbus, for appellee.

ZIMMERMAN, Judge.

The affidavit filed against the defendant must be governed and limited by the ordinance on which it is predicated, and such affidavit is framed under the part of the ordinance relating to a 'prostitute * * * wandering about the streets.'

Undoubtedly, in the exercise of the police power, a municipality may adopt and enforce ordinances designed to inhibit or curtail the illicit activities of prostitutes, but such ordinances should be reasonably specific, and, in our view, the ordinance in controversy, as worded, is too indefinite, restrictive and liberty depriving to constitute a valid use of the police power. Compare State v. Ashe, 202 N.C. 75, 161 S.E. 709.

Since the dictionary and commonly accepted definition of the term, 'wandering,' is, 'to move about without a fixed course, aim, or goal,' such definition excludes an objective on the part of a prostitute to solicit customers and ply her trade, and to eliminate that practice is and should be the purpose of statutes and ordinances directed against prostitutes. After all, a prostitute, no matter how reprehensible her mode of life, is a human being with rights protected by the Constitution, and by merely 'wandering,' without more, she commits no criminal offense. A suspicion of prospective misconduct is hardly enough.

As stated in 15 Ohio Jurisprudence (2d), 253, Section 20, penal statutes or ordinances are to be interpreted strictly against the state or a municipality and liberally in favor of an accused.

We are aware of the cases of Morgan, Supt., v. Nolte, 37 Ohio St. 23, 41 Am.Rep. 485, and Welch v. City of Cleveland, 97 Ohio St. 311, 120 N.E. 206, but we think the instant case poses a somewhat different question from that decided in the cases cited, principally because of the terminology of the ordinance in controversy.

The judgment of the Court of Appeals is reversed, and final judgment is rendered for the defendant.

Judgment reversed.

MATTHIAS, BELL and O'NEILL, JJ., concur.

WEYGANDT, C. J., and TAFT, J., dissent.

WEYGANDT, Chief Justice (dissenting).

The lower courts relied on the following decisions which the defendant insists are either distinguishable or should now be overruled.

In the syllabus in the case of Morgan v. Nalte 37 Ohio St. 2o, this court held:

'1. The only limitations to the creation of offenses by the General Assembly are the guaranties contained in the Bill of Rights.

'2. These guaranties are not infringed by Section 2108 of the Revised Statutes, which authorizes cities and villages to provide for the punishment of known thieves, pickpockets, watch stuffers, etc '3. An ordinance under this statute, providing for the punishment of any known thief found in the municipality, is valid.'

And in the opinion it was said:

'In such cases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the statute creating the offense to suppress.'

In the case of Welch v. Cleveland, 97 Ohio St. 311, 120 N.E. 206, the decision in the Nolte case, supra, was approved and followed.

And in the case of Youngstown v. Aiello, 156 Ohio St. 32, 100 N.E.2d 62, the decisions in the Nolte and Welch cases were approved and followed, and in the fifth paragraph of the syllabus it was held:

'5. The offense of 'being a...