Sliney v. State, S90A0461

• Decision Date: 17 May 1990
• Docket Number: No. S90A0461,S90A0461
• Citation: 391 S.E.2d 114,260 Ga. 167
• Parties: SLINEY v. The STATE.
• Court: Georgia Supreme Court

Page 114

391 S.E.2d 114

260 Ga. 167

SLINEY v. The STATE.

No. S90A0461.

Supreme Court of Georgia.

May 17, 1990.

William R. Folsom, Luke E. Closson, Jr., Valdosta, for Sliney.

Richard W. Shelton, Sol., Valdosta, for the State.

HUNT, Justice.

This appeal presents a constitutional challenge to § 9.8(d) of the Lowndes County Code which provides: "It shall be unlawful for any person to remove waste or litter from public containers or to place in such containers any material other than garbage." Earl Sliney was cited for removing refuse from a dumpster, in violation of the ordinance. We granted his application for interlocutory appeal following the trial court's denial of his motion to dismiss the accusation.

Sliney contends the statute violates due process, ¹ on its face and as applied to him, under the void-for-vagueness doctrine. We disagree. A statute violates due process if it is so vague that persons of " 'common intelligence must necessarily guess at its meaning and differ as to its application, [Cits.] Furthermore, '[a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.' [Cit.]" In re Suggs, 249 Ga. 365(1), 291 S.E.2d 233 (1982). The Lowndes County statute provides adequate standards by which a person of common intelligence can regulate his conduct and responsibilities in order to conform with the statute. The dissent--finding the ordinance vague because of its reference to "waste," "litter," and "garbage," and because the defendant was cited for removing "refuse"--distinguishes among these terms. However, while the ordinance may be inartfully drafted, it is evident these terms are used synonymously, and the rules of statutory construction forbid a subtle or forced construction for the purposes of either limiting or extending the statute's operation, or reaching absurd results. Earth Management, Inc. v. Heard County, 248 Ga. 442, 444(2), 283 S.E.2d 455 (1981).

Sliney, citing Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), argues the statute's reference to "any person" proscribes actions by sanitary workers or by other persons who might legitimately retrieve items mistakenly discarded. In Papachristou the Supreme Court struck for vagueness a Jacksonville vagrancy ordinance which criminalized numerous activities including "wandering or strolling from place to place without any lawful purpose or object," "common night walk[ing]" and "common railers and brawlers." In holding the ordinance unconstitutional, the Supreme Court concluded it failed to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden, placed unfettered discretion in the hands of the police, and thus encouraged arbitrary and erratic arrests and convictions. See Hubbard v. State, 256 Ga. 637, 352 S.E.2d 383 (1987). In Hubbard we rejected an argument virtually identical to Sliney's and upheld, against a void-for-vagueness due process challenge, a statute criminalizing the maintenance of a disorderly house. Hubbard, like Sliney, argued the statute under which he was arrested might constitutionally prohibit legitimate activities. However, as we noted in that case, this argument overlooks the principle that one whose own conduct may be constitutionally proscribed may not challenge a law because it might conceivably be applied unconstitutionally to others. Id. at 638, 352 S.E.2d 383.

This ordinance, ² whether wise or not, was enacted for what the county perceived to be health and safety purposes in the exercise of its police power. Cannon v. Coweta County, 260 Ga. 56, 389 S.E.2d 329 (1990). Its terms adopted to accomplish those purposes are not unduly oppressive and it is not unconstitutional for any of the reasons argued.

Judgment affirmed.

All the Justices concur, except SMITH, P.J., and BENHAM, J., who dissent.

SMITH, Presiding Justice, dissenting.

I do not believe that the ordinance gives a "person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). Furthermore, the ordinance illegally places "unfettered discretion in the hands of the police." Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

Subsection (d) of the ordinance states: "It shall be unlawful for any person to remove waste or litter from public containers or to place in such containers any material other than garbage." The ordinance forbids three acts. It forbids any person from: 1) removing "waste" from inside a public container; 2) removing "litter" from inside a public container; and 3) putting any material other than "garbage" into a public container. The express terms of the ordinance make it...