Phillips v. Municipal Court

24 Cal.App.2d 453 (1938) MICHAEL PHILLIPS, Respondent,

v.

MUNICIPAL COURT OF THE CITY OF LOS ANGELES et al., Appellants.

Civ. No. 11645. California Court of Appeals. Second Appellate District, Division Two.

January 19, 1938. Ray L. Chesebro, City Attorney, Newton J. Kendall, Assistant City Attorney, John L. Bland and George William Adams, Deputies City Attorney, for Appellants.

Joe Wapner for Respondent.

Crail, P. J.

This is an appeal by the defendants from an order of the superior court prohibiting them from enforcing against the petitioner section 647a of the Penal Code, which reads as follows: "Every person who annoys or molests any school child or who loiters about any school or public place at or near which school children attend, is a vagrant, and is punishable by a fine of not exceeding five hundred dollars or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment."

[1] The petitioner makes two contentions: (1) The second clause of said section is so vague, indefinite, ambiguous, uncertain and unintelligible as to contravene both the state and [455] federal constitutions, and therefore is invalid. (2) The title of the act, adding said section to the Penal Code, is insufficient.

The first contention of the petitioner is untenable. The verb "loiter" means "to linger idly by the way, to idle". As was said in the case of Robinson v. State, 15 Ala. App. 29 [72 So. 592], "'Loitering' is a term having a well-recognized meaning in ordinary use, the collective acts constituting which all persons are familiar with." As was said in the case of Ex parte Strittmatter, 58 Tex. Cr. Rep. 156 [124 S.W. 906, 137 Am.St.Rep. 937, 21 Ann. Cas. 477], "We think the terms 'loiter, loaf, and idle' are wholly at variance with the occasional or even frequent presence at such public places by deserving persons who may be for the time being unemployed. It is difficult in matters of this sort by any language which the legislature could have employed to have laid down a rule so definite and precise as not to be the subject-matter of criticism. In constructive legislation of this sort, along new lines, some difficulty will be found in so framing the definition as not by a strained construction, or even, perhaps, by a literal construction, to place improper and grievous burdens on deserving persons."