Davis v. State
| Decision Date | 18 January 1928 |
| Docket Number | 20569 |
| Parties | Davis v. The State Of Ohio. |
| Court | Ohio Supreme Court |
Frauds - Fortune-telling prohibited and penalized - Section 19145 General Code, Constitutional - Fortune-telling defined Statute not invalid because term not defined therein - State police power not abridged by constitutional guaranty of free speech Holding out as fortune-teller to one person sufficient to constitute offense - Membership in religious society and representation part of belief, not a defense.
1. Section 13145, General Code, prohibiting and penalizing fortune-telling does not violate either Section 1 or 2 of Article I of the Ohio Constitution or Section 1 of the 14th Federal Amendment.
2. A fortune-teller is one who pretends to a knowledge of futurity and foretells the events of one's life. Section 13145 General Code, is not rendered invalid by the term fortune-telling not having been specifically defined.
3. The constitutional guaranty of liberty of speech does not deprive the state of its police power to enact laws for the protection of the public safety and morals and the protection of the general welfare.
4. In order to constitute an offense against Section 13145, General Code, it is not necessary that a person should hold himself out as a fortune-teller to more than one person.
5. It is not a defense to a prosecution under Section 13145 General Code, that the accused is a member of a religious society and that the representation made alleged to constitute the offense was a part of the religious belief of the alleged offender.
The facts are stated in the opinion.
Mr Joseph L. Stern, for plaintiff in error.
Mr. Carl F. Shuler, director of law, and Mr. Leo Weil, for defendant in error.
An information was filed in the Municipal Court of Cleveland, Ohio, charging Gertrude Davis with having violated Section 13145 of the General Code, prohibiting and penalizing fortune-telling. The information charged continuous violations from May 9, 1925, to May 19, 1925. Section 13145, General Code, provides:
"Whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortune-teller, clairvoyant or palmister, shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned in jail not less than thirty days nor more than three months, or both."
Jury trial was demanded by the defendant, and the dial resulted in a verdict of guilty. Error was prosecuted from the judgment to the Court of Appeals, which court affirmed. The cause was thereupon admitted to this court on allowance of motion to certify the record.
In this court thirteen assignments of error have been argued, which number may be reduced by classification. The first legal question to be considered includes overruling motion to quash the information, overruling demurrer to the information, overruling defendant's motion for directed verdict at the conclusion of the state's evidence and again at the conclusion of all the evidence, and that the verdict of the jury is not sustained by sufficient evidence. These four assignments of error are based upon the claim of unconstitutionality of the statute. It is claimed that the statute violates Section 1 of the federal Fourteenth Amendment, which prohibits the abridgment of the privileges and immunities of citizens, and prohibits deprivation of life, liberty, or property without due process of law; that it further violates Sections 1 and 2 of the Ohio Bill of Rights, which guarantees the enjoyment of life and liberty and of acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety; and further prohibits the abridgment of the Liberty of speech.
It is further contended upon the same assignments of error that, inasmuch as the statute contains the words, "not having been legally licensed so to do," and no provision has been made either by the state of Ohio or by the city of Cleveland for licensing the craft of fortune-telling, the entire statute has thereby been rendered void and of no effect.
We are unable to determine what was in the mind of the Legislature in inserting that proviso in the statute, though it may be conceived that it was expected that some future Legislature would impose a license and t.hat the insertion of those words was merely a farseeing precaution to avoid the necessity of amending the statute at a future time. In any event, those words cannot be construed as rendering the statute meaningless, because it is the duty of any court in interpreting a statute to give it such interpretation as will give it force and effect, if the same can be done without violence to its general import. Whenever a future statute is passed providing for a license, the craft of fortune-telling will then have become legalized, and the statute will have become only regulatory. In its present form, and in the absence of a provision for license, the words must be construed as surplusage, and it only remains to determine whether the Legislature has power to penalize fortune-telling.
An examination of this statute in 94 Ohio Laws 363, discloses that in the original enactment the provision as to license was carried in a separate section in the following language:
"Nothing in this act contained shall apply to any astrologer, fortune-teller, clairvoyant or palmister to whom a license to practice has been legally granted."
This further indicates that the Legislature was looking to the future, and, inasmuch as no license has been provided for, it may be assumed that the Legislature has not yet seen fit to legalize and regulate the practice.
On the question of constitutionality, it is urged that fortune-telling was not an offense at common law and that it is a lawful trade or business which may not be taken away without violation of the Bill of Rights. It may be answered that the Legislature has the right to determine whether or not it is a lawful trade or business, and in making this determination the Legislature is only limited by the limitations of the police power. In determining the constitutionality of the statute, as measured by the police power, we need only inquire whether this statute is an unreasonable, arbitrary, and oppressive exercise of the police power, and whether it is really designed to accomplish a purpose falling within the scope of the police power. Every reasonable pre- sumption is indulged in favor of its constitutionality, and if the statute bears any reasonable relation to the public welfare and public morals the courts may not declare it to be invalid. To do so would be a clear usurpation of legislative power. No authority has been cited and none has been found discussing the constitutionality of penal statutes prohibiting fortune-telling, astrology, clairvoyancy, palmistry, and other similar mystic crafts, though such statutes have been in existence for a long period. In England a statute was enacted in 1824 which makes punishable as a rogue and a vagabond every person pretending or professing to tell fortunes, or using any subtle craft, means, or device by palmistry or otherwise to deceive and impose on any of His Majesty's subjects." The statute did not define fortune telling, but it was held in the case of Penny v Hanson, L. R., 18, Q. B. Div., 478, that the practice of astrology was a violation of the statute. That statute was again under consideration in Monck v. Hilton, 2 Exch. Div., 268, and in that case a spiritualist was convicted. In the case of King v. Mercott, 4 Can. Crim. Cas., 437, there was a conviction for telling fortunes in violation of Section 396 of the Criminal Code of Canada. In the opinion, at page 441, there is a discussion of a statute prohibiting and penalizing fortune-telling, enacted in England, June 24, 1735, during the reign of George II, which statute was held to be in force in the Dominion of Canada in 1890. It was so held in the case of Regina v. Milford, 20 Ontario Rep., 306. A similar statute has been in force in the state of New Jersey since 1799. That statute declares persons who practice palmistry to be disorderly persons and punishable as such. State v. Kenilworth, 69 N. J. Law, 114, 56 A. 244. A Michigan statute declares fortune-tellers to be disorderly persons and punishable, and a conviction was approved in People v. Elmer, 109 Mich. 493, 67 N. W., 550. Section 899 of the Criminal Code of New York provides that persons pretending to tell fortunes are disorderly...
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