Rembrandt v. City of Cleveland , 28 Ohio App. 4 ( 1927 )

This cause comes into this court on error from the municipal court of the city of Cleveland, where the plaintiff in error, Samuel Rembrandt, was found guilty, at the April term of said court, 1927, of failing and refusing to make a police report under Section 2516 of the city ordinances of the city of Cleveland, a portion of which we quote as follows:

"Every person driving or operating * * * a vehicle within the city, involved in an accident which caused injury to any person, or which results in a vehicle becoming so disabled as to be incapable of being propelled in its usual manner, shall give immediate notice and make full report thereof to the police department of Cleveland * * *."

Upon trial a conviction was had, and under the ordinances fixing the penalty for refusal to obey the provisions of this ordinance he was fined.

The constitutionality of the ordinance is attacked on the ground that it is in contravention of Article V of the Amendments to the Constitution of the United States, which provides that no person shall be compelled in any criminal case to be a witness against himself, and of Section 10 of Article I of the Bill of Rights of the Constitution of Ohio, which provides that no person shall be compelled in any criminal cause to be a witness against himself. Section 2788 of the city ordinances, makes it a criminal offense to make a false report, and the effect of Section 2516, it is claimed, is that any person included in the ordinance who complies with its terms in making a full report may convict himself of crime.

The ordinance itself further provides that:

"If the driver or operator involved is so incapacitated as to be unable to make such report, it shall be the duty of every other occupant of such vehicle to see that such report is made."

The purpose of the ordinance in question is founded in good faith, but there is no question that the report required to be made may involve the person making it in a criminal offense, including homicide. The penalties for the offenses growing out of a violation of the ordinance range from fines to imprisonment, and may mean, eventually, an indictment, conviction, and sentence for manslaughter.

In the case of James v. City of Cleveland, post, 178,162 N.E. 617, decided by this court June 25, 1923, in the opinion of the court, written by Vickery, P.J., this very ordinance in the case at bar was held to be unconstitutional on the authorities laid down in Henry v. City of Cleveland, 27 O.C.A., 321, 326, in an able opinion by Lieghley, J.; Horton v. State, 85 Ohio St. 13,96 N.E. 797, 39 L.R.A. (N.S.), 423, Ann. Cas., 1913B, 90; DuBrul v. State, 80 Ohio St. 52, 87 N.E. 837, and Dillingham v.State, 5 Ohio St. 280.

In the Henry case, supra, the subject of the ordinance related to assistance that might be given the driver of the vehicle which has been in collision with another person or property upon any street or public highway within the municipality, and to stopping and giving the name and address of the owner of the vehicle as well as rendering assistance, and it was held that this was invalid because of uncertainty and indefiniteness, or, in other words, because there was a failure to fix the standard as to what should constitute reasonable assistance. We find the same infirmity, by analogy of reasoning, in the present ordinance, and, in addition thereto, it is still our unanimous judgment that the section in question in the instant case is unconstitutional because it is in violation of the sections of the Constitution of the United States and the Bill of Rights in the Constitution of Ohio, as cited supra.

The ordinance provides, among other things, that a full report of the accident shall be made to the police department of the city of Cleveland, upon blanks furnished by the department, upon application. This means that, under compulsion, the operator of the vehicle must answer all questions concerning the details of the accident, in writing, to which he obviously must attach his signature, and inevitably these answers in cases of collision would involve the question of penalties in criminal cases, ranging, as before noted, from fines to imprisonment in the penitentiary for a felony. Thus it is plain that the section in question is unconstitutional, and our holding is based upon what is apparent upon the record in the case at bar, and upon the authorities above cited.

A section to accomplish the purpose sought by the city council, based on constitutional lines, is capable of construction, and so long as it does not violate the constitutional rights of a citizen is a beneficent measure, and, in the interest of the safety of the public on the highways of the city, it is the duty of the legislative body to fulfill the original purpose of the passage of the ordinance in question by constructing legislation along constitutional lines that will accomplish the same object and fulfill the same purpose intended by the ordinance in question.

Therefore the trial and conviction below is without authority in law, and it is our unanimous judgment that the plaintiff in error was unlawfully convicted. Thus holding, the judgment of the lower court is reversed, and the defendant is discharged.

Judgment reversed.

LEVINE and VICKERY, JJ., concur.