Neal v. Still, 5--5268

• Citation: 455 S.W.2d 921,248 Ark. 1132
• Decision Date: 22 June 1970
• Docket Number: No. 5--5268,5--5268
• Parties: Joe NEAL et ux., Appellants, v. The Honorable J. E. STILL, Municipal Judge, Appellee.
• Court: Supreme Court of Arkansas

Page 921

455 S.W.2d 921

248 Ark. 1132

Joe NEAL et ux., Appellants, v. The Honorable J. E. STILL, Municipal Judge, Appellee.

No. 5--5268.

Supreme Court of Arkansas.

June 22, 1970.

Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, for appellants.

BROWN, Justice.

Joe Neal and wife were formally charged, tried, and convicted in the Arkadelphia Municipal Court with willfully violating Ark.Stat.Ann. § 41--1431 (Repl.1964), titled 'Creating Disturbance on School Property.' The charges stemmed from their activities on the campus of Henderson State College. The pertinent point on appeal here is that the statute is unconstitutional.

An appeal to the circuit court was not perfected. Appellants filed in that court a petition which named the municipal judge, Hon. J. E. Still, as the respondent. The petition was styled, 'Petition for Certiorari, Petition for Writ of Corum Nobis, and Petition for Writ of Prohibition.' The circuit court granted the petition for certiorari and after deleting that part of the sentence which was admittedly objectionable, denied any other relief. That amendment left each appellant with a fine of $500. The part of § 41--1431 which is relevant to this appeal reads:

Any person who shall enter upon any public school property, school cafeteria, * * * in the State of Arkansas, and while therein or thereon shall create a disturbance, or a breach of the peace, in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment.

Appellants contend the statute is 'void in that it is vague and overbroad in violation of the fourteenth amendment and productive of a chilling effect on the exercise of rights protected by the first amendment to the Constitution of the United States.'

A legislative act is unconstitutionally vague which imposes criminal sanction for the doing of an act, and that act is so nebulously described as to require men of common intelligence to guess at its meaning. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). We presume an act of the Legislature to be constitutional and must so hold unless it is clearly incompatible with the Constitution; any doubt is resolved in favor of constitutionality. Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967). In light of the stated principles we examine and resolve appellants' contention.

It is difficult to conceive of language more vague than that which declares one a law violator when he 'creates' a disturbance or breach of the peace 'in any way whatsoever.' The same is true of language which makes it a misdemeanor to use 'offensive talk.' Then we find a prohibition against 'attempting to intimidate,' which is about as vague as one can imagine. Finally, we find in the forbidden category 'any other conduct which causes a * * * threatened breach of the peace.' We have no hesitancy in concluding that men of common intelligence would have to guess as to just what conduct is proscribed by those phrases.

The United States Supreme Court has considered, and unfavorably, a host of cases involving phraseology similar to that with which we are concerned. In Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), there was a conviction for an offense described as 'any writing calculated to create disturbances of the peace.' The Court held that language to be so indefinite and uncertain as to be unconstitutionally vague. In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the charge of 'inciting a breach of the peace' was condemned as being of general and indefinite character. In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), an ordinance which as construed punished an utterance as a breach of the peace 'if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.' It was held unconstitutional. For other cases in which convictions for breaches of the peace were reversed because the offenses were imprecisely defined, see Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In Ashton the Court said:

'Here * * * we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.'

The indefiniteness of penal laws is the subject of a recent annotation in 16 L.Ed.2d, p. 1231.

This brings us to the question of whether the entire § 41--1431 must fall because of the unconstitutionally vague portions. The different parts of the section are so mutually connected and interwoven as to lead us to believe that the Legislature intended them as a whole. The entire section consists of one sentence. In fact, when the impermissive words and phrases are deleted there remains hardly a skeletal sketch of a section with which to deal. We are further persuaded in that view because any permissible portions of the section are duplicated in misdemeanor statutes of long standing.

It is our conclusion that § 41--1431 should be, and is hereby, declared unconstitutional in its entirety.

Reversed and dismissed.

FOGLEMAN, Justice (dissenting).

I respectfully dissent. We should consider this case only in light of the record before us. Appellants did not avail themselves of their right to appeal to the circuit court and have a trial de novo, where there would have been a full record of all proceedings. Instead, they filed a petition for certiorari, writ of error coram nobis, and prohibition. The response to that petition certainly controverts appellants' statements about the incidents leading to their arrest and conviction. Consequently, we may only review the face of the record. The charge upon which appellants were accused and convicted was:

Comes the undersigned, Deputy Prosecuting Attorney within and for Clark County, Arkansas, and in the name and by the authority of the State of Arkansas, accuses of the crime of creating a disturbance upon a school campus or grounds committed as follows, to-wit: The said defendant in the County and State aforesaid on the 21 day of February, 1969, then and there did unlawfully and willfully create a disturbance in the Student Union Building of H.S.C. by the use of loud and offensive language and by distributing offensive literature designed to incite the emotions of the students of said campus, in violation of Ark. Statutes Section 41--1431 against the peace and dignity of the State of Arkansas.

This charge seems to me to be clearly within the purview of the act. In approaching an analysis of the act, we should carefully examine what is prohibited. As I read it, the act does not prohibit any of the enumerated specific conduct unless it creates a disturbance or a breach of the peace. The gist of the offense is the actual creation of a disturbance or a breach of the peace. The words 'in any way whatsoever, including, but not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance of the peace or breach of the peace or threatened breach of the peace' are merely descriptive of conduct which may or may not result in a breach of the peace.

This eliminates from consideration such a case as Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), where the vague language was 'any writing calculated to create disturbances of the peace, corrupt the public morals or lead to any act, which, when done, is indictable.' That opinion also referred to decisions holding statutes making offenses of conduct 'calculated to create disturbances' unconstitutionally vague. This element of uncertainty is eliminated from the statute before us.

As a matter of fact I cannot see that any of the authorities cited by the majority mandates the action taken. A thought which should be uppermost in considering the particular question we have before us is that every reasonable presumption must be indulged and all doubts resolved in favor of the constitutional validity of an act of the General Assembly, to the extent that when one contruction would make it void for conflict with constitutional provisions and another would make it valid, the latter will be adopted, even though the former is otherwise the more natural interpretation. Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844; State v....