State v. Elliott

• Decision Date: 08 December 1954
• Citation: 277 P.2d 754,204 Or. 460
• Parties: The STATE of Oregon, Respondent, v. Dr. Ross H. ELLIOTT, Appellant.
• Court: Oregon Supreme Court

Page 754

277 P.2d 754

204 Or. 460

The STATE of Oregon, Respondent, v. Dr. Ross H. ELLIOTT, Appellant.

Supreme Court of Oregon, En Banc.

Argued and Submitted Nov. 17, 1954.

Decided Dec. 8, 1954.

Leo Levenson, Portland, argued the cause and filed briefs for appellant.

James J. Kennedy, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief were John B. McCourt, Dist. Atty., Charles E. Raymond, Deputy Dist. Atty., Portland.

LATOURETTE, Chief Justice.

Dr. Ross H. Elliott, a chiropractor, was convicted and sentenced for the violation of § 23-927, O.C.L.A., ORS 161.310, previously referred to by this court as the Oregon Nuisance Act, it being charged that he and another unlawfully kept and maintained an office for the purpose of producing abortions. The appeal comes to us on a demurrer to the indictment, which indictment follows:

'Dr. Ross H. Elliott, and Jane Doe, whose true name is unknown are accused by the Grand Jury of the county of Multnomah and State of Oregon, by this indictment of the crime of committing an act grossly disturbing the public peace and health, openly outraging public decency and injurious to public morals, committed as follows:

'The said Dr. Ross H. Elliott and Jane Doe, whose true name is unknown, on the 24th day of April, A. D. 1951, in the County of Multnomah and State of Oregon, then and there being and then and there unlawfully conspiring, confederating and agreeing with each other thereto, did on said day in the said county and state, wilfully and wrongfully set up, equip, furnish with apparatus, and thence continuously until the 18th day of May, 1951, and ever since said time, keep and maintain a certain public place, known as the office of Dr. Ross H. Elliott, in the Times Building, in the City of Portland, said county and state, with the intent and purpose of them, the said Dr. Ross H. Elliott and Jane Doe, whose true name is unknown, of wilfully, wrongfully and unlawfully committing, producing and procuring abortions in said public place, upon women pregnant with child, and so having set up, furnished, equipped, kept and maintained said public place with the intent and for the purpose aforesaid, the said Dr. Ross H. Elliott and Jane Doe, whose true name is unknown, on the 24th day of April, 1951, in the said public place known as Dr. Ross Elliott's office, in said county and state, did wilfully and wrongfully commit and produce an abortion upon one Hazel Doe, she, the said Hazel Doe then and there being a woman pregnant with child, and did then and there between the 24th day of April, 1951, and the 18th day of May, 1951, and ever since said time, wilfully and wrongfully commit and produce upon women then and there pregnant with child, the names and numbers of which women are to the Grand Jury unknown, abortions contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The Nuisance Act, upon which the indictment was based, is as follows:

'If any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than $50 nor more than $200.' § 23-927, O.C.L.A.

For the first time, on appeal, the constitutional question is raised that the Nuisance Act is vague and uncertain and therefore void by virtue of the 14th Amendment to the United States Constitution. This act has been construed and upheld by this court in numerous cases. In State v. Atwood, 54 Or. 526, 102 P. 295, 298, 104 P. 195, we had before us an indictment which parallels in all material respects the present indictment and we there held that the indictment was sufficient under the Nuisance Act. We quote from that opinion as follows:

'* * * And clearly the acts complained of in this indictment are injurious to public morals, and we conclude that such acts constitute a nuisance, although not performed in a public place, or may not disturb the peace or quiet of the community or the public. They do openly outrage public decency, and are injurious to public morals, and such is the effect of the acts charged, even though not done in a public place, or in view of the public. * * *'

It is a universal rule that a penal statute must be definite and certain and if not it is void by virtue of the 14th Amendment to the United States Constitution. The fundamental purpose of this doctrine is to warn individuals of the criminal consequences of their conduct. Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886.

In State v. Anthony, 179 Or. 282, 169 P.2d 587, 590, certiorari denied 330 U.S. 826, 67 S.Ct. 865, 91 L.Ed. 1276, the "void for vagueness" doctrine involving the precise constitutional question here raised was before us in a case where a party was convicted upon an indictment charging the commission of an act of sexual perversity. The statute upon which the indictment was drawn is § 23-910, O.C.L.A., ORS 167.040, which reads in part as follows:

'If any person shall commit * * * any act or practice of sexual perversity, either with mankind or beast, * * * such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years.'

In upholding the conviction in the Anthony case, supra, Mr. Justice Brand, in a well-reasoned and exhaustive opinion, traced the genesis and progress of the doctrine, treating the cases, both state and federal, bearing upon the subject. It would serve no useful purpose for us to restate the principles involved in this doctrine since a perusal of the opinion in that case will give a full understanding of the subject.

The Nuisance Act has been on the statute books of this state for nearly a century and its constitutionality, until now, has never been challenged. When we decided in the Atwood case, supra, that the maintaining of abortion clinics violated the Nuisance Act, such holding became a part of the statute as if written into it at the time of its enactment. State ex inf. Harvey v. Missouri Athletic Club, 261 Mo. 576, 170 S.W. 904, L.R.A.1915C, 876. See 50 Am.Jur. 199, Statutes, § 221.

Since the cardinal purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct, it ill-behooves defendant to claim at this last date that the statute is indefinite and that he was not forewarned that his nefarious practices were a violation of the same since State v. Atwood, supra, has been the law of this state for over 40 years.

Defendant argues that the Nuisance Act is indefinite and vague in that it is a catchall and leaves to the whim and caprice of a prosecutor the determination of what grossly disturbs the public peace or health, etc. How the act might affect the actions of others is of no concern to defendant for 'It is an accepted rule that he who challenges an act under the 14th Amendment must be one against whom the act in fact operates without due process. This defendant is not such a person.' State v. Anthony, supra.

We hold that the act challenged is constitutional and not violative of the 14th Amendment to the United States Constitution.

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