Opinion · Ohlaw Ohio
STATE EX REL. v. BROWN, 165 Ohio St. 31 (1956)
STATE, EX REL. CHURCH v. BROWN, SECY. OF STATE., 133 N.E.2d 333 (Ohio 1956)
- Type
- Opinion
- Court
- Ohio
- Jurisdiction
- Ohio
- Date
- 1956-03-07
- Topic
- general
STATE EX REL. v. BROWN, 165 Ohio St. 31 (1956) 133 N.E.2d 333 THE STATE, EX REL. CHURCH ET AL. v. BROWN, SECY. OF STATE.
Citator
UpLaw has not yet analyzed STATE EX REL. v. BROWN, 165 Ohio St. 31 (1956). The absence of a flag is not a finding that it is good law.
STATE EX REL. v. BROWN,165 Ohio St. 31(1956)
133 N.E.2d 333
THE STATE, EX REL. CHURCH ET AL. v. BROWN, SECY. OF STATE.
No. 34624
Supreme Court of Ohio.
Decided March 7, 1956.
ON DEMURRER to petition.
The relators have invoked the original jurisdiction of this court for the purpose of obtaining a writ of mandamus to require the respondent Secretary of State to accept for filing and recording articles of incorporation of a proposed nonprofit corporation to be known as "National Nudist Council, Inc."
Relators allege in their amended petition that they "all are adults of legal age and under no disability"; that they have devoted many years of work to the furtherance of the nudist movement in this country, motivated by a desire to serve this cause; that to relators and other sincere adherents nudism is a religion; that all nudist groups maintain strict and high moral standards and seek constantly to improve physical and mental health; that it is relators' desire and they believe their inherent right to practice nudism within the state of Ohio, to conduct a program of general education and information in explanation of the movement, to attempt to convert the public to their point of view and to form nudist clubs; and that relators believe a nonprofit corporation to be the most effective organization for their purposes.
Relators allege further that they have tendered to respondent articles of incorporation for the proposed nonprofit corporation, with the necessary filing fee and with the request that they be accepted for filing and recording, and that respondent refuses to comply with the request.Page 32
The prayer is for a writ requiring respondent to accept for filing and recording the articles of incorporation, and that he be required to perform all acts which it is his duty to do in connection with the incorporation of such proposed corporation.
To this petition respondent has filed a demurrer on the ground that the amended petition does not state facts sufficient to constitute a cause of action.
That section provides in part: "No person 18 years of age or over shall willfully expose his or her private parts in the presence of two or more persons of the opposite sex, or aid or abet any such act, or procure another so to expose his or her private parts * * *." The section provides further that it shall not be applicable to persons exposing themselves for nursing or medical care or bona fide posing for art purposes.
Relators contend that the section is unconstitutional, being in direct violation of the First and Fourteenth Amendments to the federal Constitution, and Sections1,2,3and11of ArticleIof the Ohio Constitution; that relators have a basic right to assemble as nudists with others of a like belief; that, their assemblage being peaceable in nature, the above-quoted section is violative of the federal and state Constitutions and operates in such a manner as to abridge the rights of freedom of speech, freedom of the press, and peaceable assembly given by the Constitutions; and that the law is partial in its operation and unduly oppressive.Page 33
The articles of incorporation set forth as the purposes of the proposed corporation:
"A. To further the practice of nudism.
"B. To promote and develop a strong nudist movement composed of member clubs and individual members.
"C. To provide private facilities where members of both sexes may congregate together and in the presence of each other practice nudism without intrusion from or interference by the public.
"D. To develop a program to enlighten the public on the benefits of social nudism.
"E. To foster public health through the teaching and practice of physical and mental hygiene."
The merits of nudism as a doctrine of life need not be considered in deciding this case. The question presented is whether relators may form a nonprofit corporation to carry on activities which are, at least in part, prohibited by statute.
Section1702.03, Revised Code, appearing in the chapter, "Nonprofit Corporation Law," provides in part: "A corporation may be formed for any purpose or purposes for which natural personslawfullymay associate themselves * * *." (Emphasis added.) Clearly, a nonprofit corporation can not be formed for an unlawful purpose. The formation of a corporation "to provide private facilities where members of both sexes may congregate together and in the presence of each other practice nudism," as stated in the proposed articles of incorporation, clearly would be violative of Section2905.31, Revised Code, which prohibits the practice of nudism, regardless of the belief of those desiring to practice it as a doctrine of life, cult or sect.
The enactment of Section2905.31, Revised Code, was a valid exercise of the police power.
"In determining the constitutionality of the statute, as measured by the police power, we need only to inquire whether this statute is an unreasonable, arbitrary, and oppressive exercise of the police power, and whether it is really designed to accomplish a purpose falling within the scope of the policePage 34power. Every reasonable presumption is indulged in favor of its constitutionality, and if the statute bears any reasonable relation to the public welfare and public morals the courts may not declare it to be invalid."Davisv.State,118 Ohio St. 25,160 N.E. 473.
The relators not having shown by their petition a clear legal right to the relief prayed for, the demurrer to the petition is sustained and, relators not desiring to plead further, a writ of mandamus is denied.Demurrer sustained and writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.Page 35