Henrichs v. Hildreth
Decision Date | 23 May 1973 |
Docket Number | No. 55661,55661 |
Parties | Ricky Wright HENRICHS, a minor, by Robert C. Oberbillig, as next friend, Appellant, v. Wilbur T. HILDRETH, Appellee. |
Court | Iowa Supreme Court |
Robert C. Oberbillig and Thomas R. Harkin, Des Moines, for appellant.
George H. Ray, Asst. City Atty., and Ray Fenton, County Atty., Des Moines, for appellee.
Heard before MOORE, C. J., and RAWLINGS, LeGRAND, REYNOLDSON, and HARRIS, JJ.
Defendant appeals from trial court's denial of his habeas corpus petition seeking relief from restraint pursuant to sentence for violation of an allegedly unconstitutional city ordinance. We affirm.
Ricky Wright Henrichs, defendant, was arrested October 15, 1971, in Des Moines, then charged with having violated The Code 1966, Section 746.1, and city ordinance § 32-28.01 (the ordinance). October 26th defendant, without benefit of counsel, entered a guilty plea to both charges in Des Moines Municipal Court. A sentence of ten days in the Polk County Jail was entered on each charge.
October 28th Henrichs, then represented by an attorney, applied for habeas relief. In support thereof he urged the above cited statute and ordinance were unconstitutionally vague.
Hearing on defendant's habeas petition followed. March 1, 1972, trial court sustained the writ as to Code § 746.1, but denied same with regard to the ordinance. Resultantly our review is limited to the validity of Des Moines City Ordinance 32-28.01 which states:
'It shall be unlawful for persons to collect, assemble or group together and after being so collected, assembled or grouped together, to stand, or loiter, on any sidewalk, parking or any street corner, or at any other place in the city to the hinderance or obstruction to free passage of any person or persons passing on or along any sidewalk or street in said city.'
Issues asserted on appeal are, trial court erred in denying relief requested by defendant because (1) the ordinance is unconstitutional and (2) his fundamental right to counsel was denied him at time of his conviction and sentence.
First, our review is limited to errors assigned, not de novo. See Hill v. Houck, 195 N.W.2d 692, 694 (Iowa 1972). See also Toogood v. Brewer, 187 N.W.2d 748, 750 (Iowa 1971).
See also State v. Abodeely, 179 N.W.2d 347, 354 (Iowa 1970).
Then too, legislative enactments, including ordinances, will not be held unconstitutional unless shown to clearly, palpably and without doubt infringe upon given constitutional rights. See Brown Enterprises, Inc. v. Fulton, 192 N.W.2d 773, 776 (Iowa 1971); State v. Guardsmark, Inc., 190 N.W.2d 397, 400 (Iowa 1971). See also Kordick Plumbing and Heating Company v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971).
Furthermore, it is not for the judicial branch of government to pass upon the wisdom of a city or town council in enacting a local law. See Graham v. Worthington, 259 Iowa 854, 850-851, 146 N.W.2d 626 (1966).
In this regard defendant argues the ordinance is so vague, both facially and as applied, that it transgresses his basic due process of law rights and privileges.
By way of exclusion the record before us provides no basis upon which to evaluate the above 'as applied' concept. True, Henrichs contends his lone arrest and conviction, ipso facto, means trial court must have foundationally interpreted the ordinance phrase 'it shall be unlawful for persons, etc.' as meaning 'unlawful for a person'. But that argument calls upon us to assume others were not instantly involved or separately charged. This we cannot do absent any evidence to that effect.
Prefatorily we refer to Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971) where the court aptly stated:
See also Cox v. State of Louisiana, 379 U.S. 536, 554-555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 453, 93 L.Ed. 513 (1949).
V. In approaching the vagueness charge here leveled by defendant against the ordinance recognition should be accorded this general statement in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972):
See also Coates v. City of Cincinnati, 402 U.S. at 614-616, 91 S.Ct. at 1688-1689; Palmer v. City of Euclid, Ohio, 402 U.S. 544, 545, 91 S.Ct. 1563, 1564, 29 L.Ed.2d 98 (1971); State v. Robinson, 183 N.W.2d 190, 193-194 (Iowa 1971).
It is at once evident, however, the principle enunciated in Grayned, supra, affords no answer to the question at hand, serving rather to merely point up the problem.
VI. Next in focus is Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).
The ordinance there involved stated:
By an analytical approach the court found this ordinance, literally construed, sets forth two separate offenses. As thus viewed the second sentence would independently and unconstitutionally prohibit a person from standing on Birmingham sidewalks only at the whim and fancy of a policeman. Despite this threshold view the enactment was found to have been so narrowed by the Alabama Court of Appeals as to be facially constitutional. More specifically under Alabama's construction mere failure to comply with a peace officer's directive to move on would not suffice, it being also essential an accused be shown to have obstructed free passage. The United States Supreme Court held, however, since the trial court may have found defendants guilty by applying the above noted literal terms of the ordinance the case must be reversed.
An examination of the instant Des Moines ordinance and Birmingham's above quoted ordinance, as narrowly construed,...
To continue reading
Request your trial-
Dilley v. City of Des Moines
...is not for the judicial branch of government to pass upon the wisdom of a local law enacted by a municipal council. Henrichs v. Hildreth, 207 N.W.2d 805, 806 (Iowa 1973); Baird v. Webster City, 256 Iowa 1097, 1104, 130 N.W.2d 432, 436 (1964). Plaintiff does not assert unconstitutionality on......
-
State v. Kueny
...Stone, 414 U.S. 21, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973); State v. Wedelstedt, 213 N.W.2d 652, 656 (Iowa 1973); Hendrichs v. Hildreth, 207 N.W.2d 805, 807 (Iowa 1973); State v. Lavin, 204 N.W.2d 844, 848 (Iowa On the other hand, terminology of a statute meets the constitutional test if ......
-
City of Des Moines v. Lavigne, 2-58233
...on the authority of Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965) and upon Henrichs v. Hildreth, 207 N.W.2d 805 (Iowa 1973). I. There is a threshold question of defendants' standing to attack the statute as facially overbroad. The question is whether ......
-
McCalester v. Hillcrest Services to Children and Youth, 2--57821
...by the pleadings'); Accord, Hearth Corporation v. C-B-R Development Co., Inc., 210 N.W.2d 632, 636--637 (Iowa 1973); Henrichs v. Hildreth, 207 N.W.2d 805, 806 (Iowa 1973). The fair play concept which found articulation in a criminal case, State v. Ritchison, 223 N.W.2d 207 (Iowa 1974), is a......