MUNICIPAL CORPORATIONS ‑- CONSTITUTIONAL LAW ‑- ORDINANCES ‑- POLICE POWER ‑- REQUIRING PERSONS PREVIOUSLY CONVICTED OF CRIMES TO REGISTER WITH POLICE

MUNICIPAL CORPORATIONS ‑- CONSTITUTIONAL LAW ‑- ORDINANCES ‑- POLICE POWER ‑- REQUIRING PERSONS PREVIOUSLY CONVICTED OF CRIMES TO REGISTER WITH POLICE.

An ordinance requiring persons previously convicted of certain specified crimes to register with police upon coming within a city is constitutional.

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                                                                   March 9, 1953 

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
Ellensburg, Washington                                                                                                              Cite as:  AGO 51-53 No. 491

 Dear Sir:

             Receipt of your letter of February 17, 1953, is hereby acknowledged.  The question presented is whether an ordinance of the city of Ellensburg requiring persons previously convicted of certain specific crimes to register with the city police is constitutional.

             We conclude that the ordinance is constitutional.

                                                                      ANALYSIS

             The police power is the broadest of all governmental powers.  It is a power not susceptible of exact definition and the extent of such power has never been defined with precision.  Chicago Sanitary Dist. v. Chicago & A. R. Co., 267 Ill. 252, 108 N.E. 312.  It is the power to establish social order, to protect the life and health of persons and to safeguard them in the enjoyment of private and social life and the use of their property.

             The limitations upon the exercise of police power by a municipal corporation are that it must not violate any express constitutional provision and it must be  [[Orig. Op. Page 2]] within the limits of the powers delegated by the state.  Furthermore, to justify an interference with individual rights, it must appear that the interests of the public generally (as distinguished from those of a particular class), require such interference.  Also, the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.  Lawton v. Steele, 152 U.S. 133.

             The first inquiry is whether the ordinance violates any expressed principle of the state or federal constitution.  Section 6 of the ordinance declares a violation of its mandate a misdemeanor and imposes penalties.  To this extent, the ordinance is criminal in nature.

             Persons may not be required at peril of life, liberty or property to speculate concerning the meaning of a penal statute or ordinance.  All are entitled to be informed what the state or its political subdivision commands or forbids.  Lanzetta v. New Jersey, 59 S.Ct. 618, 306 U.S. 451.  A criminal statute so vague and indefinite that a person of ordinary intelligence could not, by reading it, understand what conduct is demanded or proscribed, violates the due process clause.

             Section 6 of the ordinance in question does not define the crime.  It provides merely that any person violating the provisions of the ordinance shall be guilty of a misdemeanor.  But section 1 sets forth in detail the course of conduct commanded.  The convictions for which registration is required are specifically itemized.  The period of time during which the conviction must have occurred in order to come within its meaning is defined.  Subdivision (v) sets forth in detail the circumstances, time and place of registration and all the matter which must appear in the statement.  Sections 2, 3, 4, and 5 make the same requirements applicable to persons residing within, or moving within the city, and excepts persons who have been pardoned, paroled, or placed on probation.

             The form of the ordinance is quite similar to the Foreign Agents Registration Act (22 U.S.C.A. § 611 et seq.) which requires every agent of a foreign principal to file a registration statement with the Attorney General.  The matters to be covered in the registration statement and the procedure to be followed are set forth in long and involved detail in the first sections of the act.  Finally it provides that failure to register shall be a crime and imposes penalties.  InUnited States v. Peace Information Center, 97 F. Supp. 255 (1951), the act was attacked under the due process clause on the ground that its provisions are not sufficiently definite to establish and formulate an ascertainable standard of  [[Orig. Op. Page 3]] guilt.  After reviewing the act in its entirety, the court conceded that, in borderline cases, certain persons may have doubt whether they are within the terms of the act.  But it was held that such a circumstance is not sufficient to vitiate the law.  The cited case is authority for the proposition that the crime denounced need not be defined so precisely that the application of the statute is clear beyond doubt in every case.

             The ordinance under consideration is definite enough to establish the standard of conduct required.  In this respect, it does not violate the due provisions.

             The same type of statutes have been attacked as violating the self-incrimination provisions of the federal and various state constitutions.  Such objections are patently unsound because the constitutional privilege against self-incrimination is personal to the individual involved and is not a basis for invalidating a statute.  SeeUnited States v. Peace Information Center, supra.

             With respect to the privileges and immunities clause of the Fourteenth Amendment generally, it should be noted that the "privileges and immunities" therein guaranteed are not absolute but are subject to reasonable limitations for the common good of all.  SeeLee v. Delmont, 228 Minn. 101, 36 N.W. (2d) 530.

             Obviously, the ordinance is an interference with the freedom of certain individuals.  Therefore, it must be determined whether the interests of the public require such interference, and, if so, whether the means adopted is reasonably necessary to the accomplishment of the purpose, and not unduly oppressive.

             Section 9 of the ordinance declares the presence of such persons within the city without the knowledge of the peace officers to be a menace to the safety and welfare of the citizens.  Our own research indicates that the incidence of crime is higher among persons with a past record of criminal convictions than among persons with no prior convictions.  If the relation between the ordinance and public welfare is debatable, there is a presumption in favor of the validity of police legislation, and the judgment of the legislative body should be accepted.  Thayer v. Michigan Dept. Agriculture, 323 Mich. 403, 35 N.W. (2d) 360.  We accept the judgment of the city council that the interests of the public require the interference with individual freedom to the extent indicated.

              [[Orig. Op. Page 4]]

            The next question is whether the means adopted is reasonably necessary to accomplish the purpose.  It can hardly be gainsaid that keeping the police informed of the whereabouts of a particular person is a deterrent to criminal activities on the part of that individual.  If the individual himself is not required to convey the necessary information to the police, it is difficult to conceive of any other method by which they will receive it.  Seldom would anyone else have knowledge of the facts desired.  The police themselves would seldom know when a particular person came into town.  The procedure established by the ordinance is about the only practical method by which the desired end could be accomplished.  We think that the means adopted is reasonably necessary to accomplish the purpose.

             Finally, it should be determined whether the ordinance is unreasonable or unduly oppressive.  In U.S.C.A., Constitution, Amendment Fourteen, § 1, p. 54 et seq., there appears annotations to numerous cases where statutes and ordinances imposing specific limitations upon the freedom of citizens have been considered.  An ordinance subjecting vagrants, habitual loafers, drunkards, and persons without apparent means of support to fines and imprisonment has been upheld.  New Orleans v. Postek, 180 La. 1048, 158 So. 553.  A statute providing for the commitment of minor children on account of vicious and criminal tendencies was held to be constitutional.  Bryant v. Brown, 151 Miss. 398, 118 So. 184.

             The case which appears to have gone the furthest in upholding newly defined criminal offenses is Levine and Barbalet v. New Jersey, 166 Atl. 300.  The statute there involved, declared "all runaway servants or apprentices, common drunkards, common thieves, burglars or pickpockets, common night walkers and common prostitutes" to be disorderly persons.  The defendants were charged with being disorderly persons in that they were "common burglars" loitering upon the street.  The statute was upheld in the following language:

             "The manifest purpose of this legislation is to check evil in its beginning, and thus to insure public safety.  The statute is not arbitrary or unreasonable.  It provides for the apprehension and punishment of a class that menaces the security of persons and property."

             The ordinance here in question falls far short of the power vested in the policing authorities in the cited case.  We conclude that the ordinance in question  [[Orig. Op. Page 5]] is not unreasonable or unduly oppressive.

             The authority of a municipality to impose reasonable restrictions upon its citizens is not inconsistent with the concept of "civil liberties" as guaranteed by state and federal constitutional provisions.  In fact, so long as that authority be not abused, it is the very means by which these guarantees are secured.

             In our opinion, the ordinance is subject to no constitutional infirmity.

 Very truly yours,
DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General