Nichols v. Salem

89 P. 804, 49 Or. 298, 1907 Ore. LEXIS 118

• Court: Oregon Supreme Court
• Decided: April 23, 1907
• Status: Published

Opinion

Mr. Chief Justice Bean

delivered the opinion.

On February 6, 1905, the plaintiff was tried and convicted in the Municipal Court of the City of Salem on a complaint charging him with the crime of vagrancy, committed by unlawfully and wrongfully frequenting and living in a house of ill fame, and being without visible means of living, and without lawful occupation and employment, “contrary to the provisions of Section 1 of Ordinance 223, entitled:

“An Ordinance to define and punish vagrancy, approved by the mayor of the said city on'the 15th day of September, 1891.’’

He thereafter sued out a writ of review to have the judgment of the municipal court annulled and set aside on the grounds (1) that the ordinance under which he was tried and convicted was void, because not within the power of the city to enact; (2) that there was not sufficient proof of the existence of such an ordinance; and (3) that the complaint was insufficient because it did not set out the ordinance alleged to have been violated in h.aec verba or in legal effect, but only referred to it by title, number and date of approval. The judgment of the municipal court was affirmed, and he appeals.

By the charter of the City of Salem the common council is given the exclusive power

“To define what shall constitute vagrancy, and to provide for the support, restraint, punishment, working and employment of vagrants and paupers”:, Laws 1891, p. 1091.

The ordinance under which plaintiff was prosecuted is entitled and provides as follows:

“An Ordinance to Define and Punish Vagrancy.”

“Section 1. Any person or persons who live idly or live without any settled homes, or who have no visible means of living or lawful occupation or employment, or are found begging or living in tippling houses, opium smoking houses, bawdy houses, houses of ill fame, or who shall frequent tippling houses, bawdy houses, houses of ill fame, opium smoking houses, or houses wherein opium is smoked, or houses generally reputed or of common report to be bawdy houses of houses of ill fame, is hereby defined to be a vagrant.

Sec. 2. An)' person or persons convicted of being a vagrant, as defined in the foregoing section, shall be fined not less than $5. nor more than $100, or be imprisoned in the city jail not less than five days, nor more than twenty days.”

1. The position of the plaintiff, as we understand it, is that while the city may, under its charter, define vagrancy, it has no power to provide for the punishment of the crime so defined, the authority to punish being confined solely to common-law vagrancy. The charter is the organic law of the city, and was designed to confer upon the inhabitants of the given locality certain police powers and duties. It should, therefore, receive a reasonable construction to effect the purposes intended. When so construed, it is apparent that the charter was intended to, and did, confer upon the common council the power to declare what shall constitute vagrancy, and to provide for the punishment of persons guilty thereof. Vagrancy is the state of being a vagrant. The power to define vagrancy is simply the power to declare what shall constitute a vagrant, and express authority is given by the charter to provide for the punishment of vagrants. When, therefore, the city, by ordinances, declared that any person living idly or without any settled home, or without any visible means of living, or lawful occupation and employment, or found begging, or living in or frequenting certain disreputable houses, shall be deemed a vagrant, and punished in a certain manner, it in effect defined vagrancy and provided for its punishment.

2. It is next contended that there was no such ordinance at the time of plaintiff’s trial and conviction. There is nothing in the record upon this subject except the certificate of the city recorder, annexed to his return to the writ of review, stating that in June, 1905, he was unable to find among the records of his office the original of such ordinance. This is no evidence that the ordinance was not in existence at the time of plaintiff’s trial and conviction some months prior to the date of the recorder’s certificate, and we are bound in this proceeding to assume such to have been the fact.

3. It is further contended that the complaint upon which plaintiff was tried and convicted is insufficient because it does not set out the ordinance which he was charged with violating, either in full or in legal effect. There seems to be some conflict in the authorities as to whether it is necessary to plead a municipal ordinance in a municipal court, since such court will take judicial notice of ordinances on the ground that they are the law of the forum: 15 Enc. PI. & Pr. 425; Portland v. Yick, 44 Or. 439 (75 Pac. 706: 102 Am. St. Rep. 633). But, whatever the true rule may be on the subject, it is sufficient in proceedings in a municipal court to refer in the pleadings to an ordinance by title, number and date of approval, as was done in this case: Nodine v. City of Union, 13 Or. 587 (11 Pac. 298); 15 Enc. PI. & Pr. 426.

Finding no error in the record, the judgment is affirmed.

Affirmed.