City of Columbus v. Starghill, 56074

• Decision Date: 23 May 1973
• Docket Number: No. 56074,56074
• Citation: 35 Ohio Misc. 63,299 N.E.2d 925
• Parties: , 64 O.O.2d 225 CITY OF COLUMBUS v. STARGHILL.
• Court: Ohio Court of Common Pleas

Page 63

35 Ohio Misc. 63

299 N.E.2d 925, 64 O.O.2d 225

CITY OF COLUMBUS v. STARGHILL.

No. 56074.

Franklin County Municipal Court, Ohio.

May 23, 1973.

Daniel W. Johnson, City Prosecutor, for plaintiff.

Henry Clay Scott, Columbus, for defendant.

WEST, Judge.

The defendant is charged with operating a motor vehicle without exercising reasonable and ordinary control over such vehicle in violation of Section 2131.33 Columbus City Code. In a companion case the defendant is charged with second degree homicide by vehicle, in that he did unlawfully and unintentionally kill one Rudolph C. Allen, while operating his vehicle in violation of said Section 2131.33.

Defendant moves to quash the affidavit as being based upon an ordinance that is unconstitutional and void by reason of it being vague and indefinite.

Section 2131.33, Columbus City Code, reads as follows:

'No person shall operate a motor vehicle or motorcycle upon any street or highway without exercising reasonable and ordinary control over such vehicle.'

Defendant claims the phrase 'reasonable and ordinary control' is subjective in nature, and thus impossible to define precisely because what is 'reasonable and ordinary control' differs from person to person, according to his own individual judgment. Also, the manner of control and operation of an automobile is a constantly changing thing, depending upon weather conditions, traffic conditions, road conditions, age and physical condition of the driver, and condition of the automobile.

It is defendant's position that as used in the ordinance in question, 'reasonable and ordinary control' is not defined so as to enable the ordinary citizen to determine what is or is not a violation, and there are no fixed standards or guidelines laid down for police officers and the court from which they can determine if an offense has been committed.

Defendant relies upon Columbus v. Thompson (1971), 25 Ohio St.2d 26, 266 N.E.2d 571, in which the Ohio Supreme Court held:

'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.'

The Supreme Court said, at page 32, 266 N.E.2d at page 575, in its opinion in Columbus v. Thompson, supra:

'In effect, this portion of the ordinance 'leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' Giancio v. Pennsylvania (1966), 382 U.S. 399, 402, 86 S.Ct. 518, 521, 15 L.E.2d 449.'

Defendant also points to the case of Dayton v. Allen (1971), 271 N.E.2d 574, 576, wherein the Dayton Municipal Court ruled:

'The City of Dayton 'Congregating Ordinance' which prohibits one from knowingly congregating in or about any one of certain named areas or establishments where certain stated illegal activities are being carried on with knowledge that such activities take place therein is unconstitutional in the following respects:

'1. Violative of the due process clause of the 14th Amendment to the United States Constitution in that the Ordinance imposes sanction upon conduct that might or might not manifest an unlawful purpose, that it makes no distinction between conduct calculated to harm and conduct which is essentially innocent, thus raising the very real risk that the ordinance will be selectively or...