Columbiana v. Keister , 5 Ohio App. 3d 81 ( 1981 )

I concur in the final resolution of this case, but for the reason that I hold Section 1325.01 to be impermissibly vague. In and of itself, the ordinance expresses no definition of a mobile home or of a house trailer. In its brief, the appellee resorts to definitions found in R.C. Title 45 and Title 37 of the Administrative Code of the Ohio Department of Health. Since the ordinance in question was adopted on October 17, 1961, the statutory definition of a "house trailer" (R.C. 4501.01) has been modified. Under R.C. 4501.01, as it was written when this ordinance was adopted, a "house trailer" was defined as:

"(J) * * * any self-propelled and non-self-propelled vehicle so designed, constructed, reconstructed, or added to by means of accessories in such manner as will permit the use and occupancy thereof for human habitation, when connected to indicated utilities, whether resting on wheels, jacks, or other temporary foundation and used or so constructed as to permit its being used as a conveyance upon the public streets or highways."

R.C. 4501.01 as amended defines a "house trailer" in paragraph (O) differently than in previous paragraphs (I) and (J) by removing the term "self-propelled." The new statute also specifically defines "recreational vehicle" (R.C. 4501.01[Q]), "motor home" (R.C. 4501.01[Q][2]) and "truck camper" (R.C.4501.01[Q][3]) each of which appeared in the previous definition of "house trailer." Apparently a house trailer is not always a house trailer. Also, when the ordinance in question was adopted, present R.C. 1151.299 which defines a "mobile home" had not yet been adopted by the legislature.

Section 1325.01 prohibits the use of private property and imposes a criminal penalty for violation. Such an ordinance must be strictly construed against the government. Such strict construction requires precision:

"Penal statutes and ordinances are strictly construed and may not be extended by implication to cases not falling within their terms." Cleveland v. Jorski (1944), 142 Ohio St. 529 [27 O.O. 464], paragraph one of the syllabus.

The Jorski court, at page 532, cited from 14 American Jurisprudence 773, Section 19:

"`The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid.'"

By reference to the history of state statutes, no certain and understandable and day-to-day definition of "mobile homes/house trailers" comes forth. Why should a citizen be required, in a zoning matter, to look to the ever-changing motor vehicle code (R.C. Title 45) and the law governing building and loan associations, so that he can know his duty. Very easily the Council of Columbiana can define the terms "mobile home/house trailer"; then application of the penal law can be precise. In the case of State v. Meyers (1897), 56 Ohio St. 340, the Ohio Supreme Court, at page 350, cited Chief Justice Marshall speaking in the case of United States v. Wiltberger (1820), 18 U.S. (5 Wheat.) 76, 96:

"`* * * To determine that a case is within the intention of a statute, its language must authorize us to say so.'" (Emphasis added.)

Section 1325.01, lacking in definition, is vague and therefore unconstitutional.