Later courts went against this
Overruled on other grounds by City of Portland v. James, 251 Or. 8 (1968)
City of Portland v. Goodwin, 187 Or. 409, 210 P.2d 577 (1949), overruled on other grounds City of Portland v. James, 251 Or. 8, 444 P.2d 554 (1968).
The opinion
On Petition for Rehearing.
BRAND, J.
Defendants appear
to
construe our opinion as holding that the mere act of placing one’s self on the street constitutes “an overt act authorizing arrest”. The opinion taken as a whole implies nothing of the sort. The overt act which violates the ordinance and thus authorizes arrest is the willful act of going upon the street during the prohibited hours and then and there manifesting by conduct an unlawful purpose.
A person complies with the ordinance if in going upon the street he has and discloses a lawful purpose. The use of the streets for the purpose of going to or from points within the city or for the mere purpose
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of walking for exercise or for merely social purposes, is a lawful use whether in daytime or nighttime. And such use of the streets is for a lawful purpose. He goes upon the street as an innocent man entitled to the presumption of innocence and he need take no affirmative action to demonstrate his innocence. The lawfulness of his purpose is disclosed by his use of the streets for the purposes for which they were established. He must be deemed innocent unless his voluntary conduct overcomes the apparent and presumed innocence of his movements by disclosing a purpose to violate some law other than the ordinance in question.
This is the view which we attempted to express in our original opinion. Thus construed the ordinance is supported by authority and violates no constitutional provision.
The petition for rehearing is denied.