*1 214 Milliman, (Ariz. 1966)
rе Estate of P.2d 877 involved 415 administration, there general letters of assume administered, though existed cannot deter- an estate to one Snyder, mine this from the Hesler v. 422 opinion. 1967) (Okla. authority of a adminis- foreign concerned the action, tratrix to maintain and involves considerations by the this case. All other authorities cited presented cited, there but found majority some not opinion brief, statutes since involve respondent’s inapposite to the per- the cause of action restricting prosecution In following: re sonal alone. I refer to the reprеsentative Estate, 1944) (Cal. the Federal involving Waits Paul, v. 46 N.W. Act; St. 79 Liability Hutchins Employers (Mich. 1890); 64 732 (Minn. Findlay Chicago, v. N.W. 1897); (Neb. 1895); Missouri, 282 71 N.W. Bradley (Neb. Richards v. Lewis, 40 401 N.W. Missouri (W.Va. Berry v. Ironworks, 49 S.E. Riverside Smitha, (Vt. 1931); Rutland, St. Louis A. 671 1916). dealt with an alternative (Tex. None S.W. 237 NRS statute such as 12.090. Troyer’s the intendment of overrules majority opinion Estate,
Estate, re Dickerson’s supra, places In NRS 12.090 and NRS 140.010 construction strained can be each meaning Full accorded stat- together. when read either. We should construe violence to them doing ute without end. to accomplish dissent.
I respectfully PARKER, Petitioner, v. MUNICIPAL JUDGE FRANK Respondent. VEGAS, LAS CITY OF OF THE
No. STAMPS, Petitioner, v. MUNICIPAL DENNIS HENRY Resрondent. VEGAS, LAS THE CITY OF JUDGE OF
No. 5261 May P.2d *2 Kellar, Charles L. of Las for Frank Vegas, Petitioners Parker and Dennis Henry Stamps.
Sidney Whitmore, R. City Attorney, Las Vegas, Bartley, M. James Assistant City Attorney, for Respondent.
OPINION Court,
By C. J.: Thompson, These are consolidated proceedings prohibition to test of the constitutionality “disorderly persons” ordinance of the City Vegas. of Las Each petitioner was charged a being “disorderly person” in that had he the physical ability work, to no visible means of and was support, in a public Each was tried before the place.1 Municipal Court and found Neither been guilty. has sentenced because these proceedings intervened. The Court not Municipal a record. court of Therefore, we assume that charges true, must were proven i.e., that each at the petitioner, time had the specified, ability work, to was without visible means of and was found supрort, Thus, in a our concern is whether public place. part the ordinance under which were charged is unconstitu- It judgment tional on its face. is our it is unconstitu- since the status of tional its effect is make poverty VI, Vegas City Disorderly § 1 Title Las Code. Persons: Ch. physical ability within the of the Persons Limits who work, living idly, having support, who are visible means of or streets, loitering loafing alleys public places found or about the or loitering City, loafing habitually or or who are found or roadhouses, houses, saloons, barrooms, night dramshops, tippling the clubs, purposes gambling places by pеrsons or houses resorted disorderly prostitution purposes, or immoral guilty shall be deemed persons and of a shall be misdemeanor. Court, Reno v. District due
thereby violating process. (1967) held unconstitu- we 83 Nev. [where of evil repu- persons ordinance municipal prohibiting tional Robinson for an unlawful consorting purpose]; tation from California, unconstitutional (1962) [holding 370 U.S. for the condition criminal penalties statute which imposed narcotics]; v. District Hicks to the use of addicted dis- Douglas, Justice (1966) Columbia, U.S. [where as improvidently of certiorari from the dismissal senting condition thаt the personal his view granted, expressed constitutionally made crime]. cannot being vagrant Justice the comment without approve, qualification, We in Edwards concurring Jackson in his opinion now, and say (1941): should 160, 184, “We U.S. terms, property that a man’s mere uncertain in no test, qualify, a State more, be used cannot ‘Indigence’ United States. of the as a citizen rights limit his denying a basis for rights a source of itself is neither *3 fact a neutral is without funds being them. The mere state of creed, color.” race, irrelevance, like an constitutionally (cid:127) — as of ordinance this type сondemn subject Writers to freedom, and hostile of notions to our fundamental inimical Foote, value. Vagrancy-Type has every person the idea (1956); Administration, 104 U.Pa.L.Rev. Law and Its Rogues Sherry, Vagrants, —Old (1960); Douglas, Cal.L.Rev. 557 Need of (1960); L.J. 1 on 70 Yale Suspicion, and Arrest Vagrancy (1962). Comment, We likewise сon- 37 N.Y.U.L.Rev. demn it.
Our a law which makes rather voiding reasons for v. conduct, City articulated in of Reno fully than a crime be Court, again and need not We expressed. District do, however, comment. The ordinance before add one further unlike Reno v. District Court us, City involved case, by way interject, presumption, does not attempt course, in Of justify validity. “unlawful purpose,” save the from view, would not ordinance our such addition note this distinction challenge. point We constitutional standards cannot meet constitutional out that this ordinance to be unemployed, It not analysis. any simply under the unfor- funds, To punish and in public place. The comment society. debases this circumstance tunate for we hold our heads “How can is relevant: Douglas Justice welfare or the the need for with crime and still confuse high Arrest on Suspicion, Douglas, Vagrancy need for work?” (1960). 1, 12 70 Yаle L.J. years the use we that over
Finally,
reject
thought
“average
law will somehow
of this
application
justice.
out” to be a worthwhile tool in the administration
avail the
do not
ages
justice
ver
in the administration of
“[A]
own,
case.
in his
wronged grievously
particular
who is
person
better
evolving
may
The
to time and
assist
patience
appeal
use of the profession,
for future
concepts
techniques
an innocent man
sending
it
excuse
exonerate our
cannot
tomorrow
now. Enlightenment
to the
here and
penitentiary
serve,
in our hands
destiny
not
for his
rеsts
or elsewhere will
. . . forbids us to
today,
injustice
patient
sense of
our
34 N.Y.U.L.
Cahn,
Injustice,
Consumers of
at his cost.”
The
v. Drew
(1959).
See also:
of Seattle
Rev.
Anduha,
(Wash.
Territory
of Hawaii
(9
City Birming-
each permanent.
Zenoff, J., concurs.
Collins, J., dissenting: Vegas vagrancy the Las The court rules unconstitutional words, In other a crime of status. ordinance because it makes intent, act an overt society coupled punishing being” crime, “status or but the classically the elements of addiction time, indigency, at a such as given or dis- or idle alcohol, or bum narcotiсs or tramp solute person. authority unconstitutional on the The ordinance is declared Court, of Reno District Nev.
(1967) (to dissented, and which dissent persist); which I (1962); and the dis U.S. 660 Robinson v. Hicks v. District of Douglas of Justice senting opinion *4 (1966). Columbia, 252 383 U.S. the United States Court has Supreme
But the fact remains true vagrancy the of statutes refused so far to declare Edelman v. unconstitutional. status dealing Columbia, (1953); Hicks v. District of 383 U.S. 357 344 (1966). U.S. 252 stat- constitutionality vagrancy attack on
The main rather than the courts. “One writers legal comes from utes vag- that the administration the conclusion cannot escape rigidity hatch to avoid the as an escape laws serves rancy-type law and pro- defects in criminal by imagined real imposed * * * bur- to ease the necessary prosecution’s If it is cedure. then suspicion, arrests for mere legalize den of proof 218 the grave and policy constitutional problems by such posed suggestions Foote, should be faced.” Law and Vagrancy-Type
Its 603, Administration 104 (1956). U.Pa.L.Rev. “They 649 [vagrancy reflect a for basic and disregard laws] essential ele ments of effective criminal theory vagrancy con cept replaces actual causation of criminal harm with ‘suspicion causation’ and substitutes status for the traditional require ment of conduct. The necessarily statutes, vague cast of these furthermore, gives rise to serious doubt as to their constitu tional validity on their and as face enforced.” Dubin —both Robinson, Reconsidered, The Vagrancy 37 Concept 102, (1962). N.Y.U.L.Rev. 104 “There is little dissent from the conclusion that the vagrancy law is archaic in concept, quaint phraseology, symbol injustice many very largely at variance with standards prevailing of con stitutionality.” Sherry, Vagrants, Rogues — Old in Need 48 Cal.L.Rev.
Courts on the other hand
generally
the con-
upheld
stitutionality of the
re
statutes. In
vagrancy-type
Cregler,
(Cal.
P.2d 305
1961);
Starr,
(Ariz.
State v.
1941);
Bell,
(N.Y. 1953);
People
N.E.2d 821
State
Harlowe,
(Wash.
1933);
State,
Levine v.
(N.J.Ct.Err.
A. 300
&
App.
Dominguez
County
Denver,
(Colo. 1961);
363 P.2d
Goodwin,
Portland v.
210 P.2d
rehearing denied 210
(Ore.
P.2d
Shaw,
Taft v.
(Mo.
under the drug, influence of or or the com- intoxicating liquor any drug, bined influеnce of interferes with prevents any street, or obstructs or the free use of sidewalk or other public way; “(j) Loiters, prowls private property or wanders another, nighttime, in the without visible or lawful business with the occupant thereof, who, loitering, prowling owner or or while wandering upоn private property another, nighttime, peeks any building in the door or window of inhabited or structure thereon, located without visible or lawful business with the owner or occupant thereof; or “(k) Lodges any building, place, public structure or whether private, permission without the of the owner or entitled to possession or in control thereof. Every vagrant guilty “2. of a misdemeanor.”