City of Cincinnati v. Coates

CorRigaN, J. We are without the advantage of a bill of exceptions in these appeals from convictions in the Hamilton County Municipal Court for violating Section, 901-L6 of the Cincinnati Code of Ordinances. The Court of Appeals for Hamilton County affirmed the convictions, and the causes are before this court pursuant to the allowance of motions to certify the records. The ordinance in question provides: “It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both.” With one exception, the separate affidavits upon which the warrants of arrest were based charged that each defendant “being one of a group of more than two persons assembled on the sidewalk on or about April 11, 1968, at and in the city of Cincinnati, Hamilton County and state of Ohio, did unlawfully conduct himself in a manner annoying to persons passing by contrary to and in violation of Section 901-L6 of the Code of Ordinances of the City of Cincinnati.” In case No. 69-116, the affidavit charged defendant “on Dec. 7, 1967, did unlawfully loiter on the sidewalk at — 68 — 500 Main with 6 other persons and there did conduct himself in a manner annoying to persons passing by * * We are urged to declare this ordinance to be in violation of the First and Fourteenth Amendments to the Constitution of the United States and Section 3, Article I of the Ohio Constitution, for the reasons that it is vague and imprecise as to what conduct is proscribed. A claim is also made that the affidavits do not contain all the material elements to charge an offense under said ordinance. The First Amendment to the U. S. Constitution provides, in part: “Congress shall make no law * * * abridging * * * the right of the people to peaceably assemble * * Section 3, Article I of the Ohio Constitution, provides, in part: “The people have the right to assemble together, in a peaceable manner * * *.” This right of assembly, granted by both state and federal constitutions, contemplates that it be asserted and enjoyed in a peaceable manner. The right delineated certainly does not include the contravening of other rights of other persons. The affidavits under scrutiny here charge assembly and a course of conduct “* * * annoying to persons passing by * * *.” Without a bill of exceptions we do not know what the conduct was which was considered annoying. Could it have been the interrupting or interfering with the free, unimpeded passage, the use of and enjoyment of the public sidewalk or street by other persons? Could it have been an intrusion upon the privacy of persons using the public sidewalk or street by accosting and seeking to deliver to such persons written or printed messages, papers, pamphlets, cards or books? Could it have been an intrusion upon the privacy of persons to impart an oral message by blocking or otherwise seeking to detain persons in the free use of the public sidewalks or streets? On the state of the record before us, we will go to our rewards without knowing. — 69 — As to the contention that this ordinance is imprecise, vague and indefinite, we do not agree. Certainly, crime must be defined with certainty and definiteness, which requirements are elements of due process. Persons charged with violations of penal statutes or ordinances are not required to speculate as to the meaning of such legislation. If the provisions of an ordinance are so vague that persons of common intelligence must guess as to their meaning, then an essential of due process is lacking. Connolly v. General Construction Co., 269 U. S. 385. The ordinance prohibits, inter alia, “conduct * * * annoying to persons passing by.” The word “annoying” is a widely used and well understood word; it is not necessary to guess its meaning. “Annoying” is the present participle of the transitive verb “annoy” which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate. We conclude, as did the Supreme Court of the United States in Cameron v. Johnson, 390 U. S. 611, 616, in which the issue of the vagueness of a statute was presented, that the ordinance “clearly and precisely delineates its reach in words of common understanding. It is a ‘precise and narrowly drawn regulatory statute [ordinance] evincing a legislative judgment that certain specific conduct be * * * proscribed.’ ” Although we conclude that the meaning of the words used in the ordinance is clear and that the standard of conduct which it specifies is not dependent upon each complainant’s sensitivity, we are unable to apply it to the facts in this case because of the absence of facts in the record before us. We find no merit in defendants’ claim that the affidavits herein do not contain all the material elements to charge an offense under this ordinance. The judgments of the Court of Appeals are affirmed. Judgments affirmed. Taft, C. J., Matthias and SchNeider, JJ., concur. O’Neill, Herbert and DuNcaN, JJ., dissent.