UUUOi. AUTOMOBILE LAW BERRY liiiillilB^^^^^ III!, I fm.- .|!'|i'h iiiifiifl I !.■' |."i.'..(lii tiiHt«tmiHtr.ua (5nrnpU Klam i»rlynnl Slibratg \ • MAY 18 1910 LAW LIBRAE!. Cornell University Library KF 2209.B53 A treatise on the law relating to automo 3 1924 019 379 837 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019379837 A TREATISE ON THE LAW RELATING TO AUTOMOBILES By C. P. BERRY OF THE ST. LOUIS BAR Chicago CALLAGHAN & COMPANY 1909 ^J/mL COPYEIGHT 1909 BY OALLAGHAN & COMPANY To MR. GEORGE H. BOWLES OF THE ST. LOUIS BAR This Book is Respectfully Dedicated PREFACE Perhaps no business in all history has equalled in remarkable growth that of the automobile industry. The bicycle was the subject of a sudden and great demand, but unlike that of the bicycle, the demand for the automobile is not based on a fad, and so liable to as sudden a decline. There is no question of the automobile's utility; as a vehicle of pleasure its value may fluctuate or decline, but its practical value has been demon- strated so thoroughly that its use wiU doubtless become more general, until it is displaced by some vehicle as much its superior as it is the superior of horse drawn conveyances. The extensive use of the automobile has caused it to become one of the main sources of litigation. It has been attempted in this work to apply the principles of law to the use of the auto- mobile as a vehicle. It has been necessary to cite many cases which do not directly involve the automobile, but which support the principles of law laid down in the text. These citations will be very valuable to the profession. It has been the intention to make a practical work on this subject wherein all the law could be readily found, and to state the law tersely in plain and un- ambiguous terms. There are cited in this work one thousand eight hundred and ninety cases. 0. P. BE25EY. St. Louis, April 14, 1909. CONTENTS BY CHAPTERS GHAPTBK I. PAGE DEPINinONS AND GeNEEAL CONSIDERATION 1 CHAPTER II. liEGAii Status op the Automobile 16 CHAPTER III. State Police Regulations 27 CHAPTER IV. Municipal ob Local Police Regulations 52 CHAPTER V. State IjICEnsb Laws 72 CHAPTER VI. Municipal ob Local License Laws 87 CHAPTER VII. Federal Laws Affecting the Automobilb 97 CHAPTER VIII. Rights and Duties on the Highway 102 vii VlU CONTENTS BY CHAPTERS. CHAPTER IX. PAGE The Chauffeur 119 CHAPTER X. The REiJi.TioN of Owner and Chauffeur, and Owner and Borrower 122 CHAPTER XI. Negligence: and Herein of the Negligent Operation of Automobiles on the Highways 138 CHiAPTER XII. Damages Dub to Negligence 179 CHAPTER XIII. The Garage and Garage Keeper 195 CHAPTER XIV. Actions Against the Owner or Chauffeur for Viola- tions OF State or Municipal Police Regulations 202 CHAPTER XV. Contracts Touching the Manufacture and Sale op AtTTOMOBILBS 208 CONTENTS BY SECTIONS CHAPTER I. DEFINITIONS AND GENERAL CONSIDERATION. 1 1. Origin of Term "Automobile." 2. Automobile Variously Defined. 3. The Term "Automobile" as Used in this Work. 4. Automobile Terms Defined. 5. Statutory Definitions of Automobile. 6. Classification of Automobiles. 7. Early History of the Automobile. 8. Recent Inventions and Developments of the Automobile 9. Grov7th of the Automobile Industry. 10. Use of the Automobile. 11. Automobile Accidents. 12. Popularity and Success of the Automobile. 13. Automobile Is a Vehicle. 14. Automobile Is a Carriage. 15. Decisions that the Automobile is a Carriage. 16. Automobile Held Not to Be a Carriage. 17. History of the Bicycle. CHAPTER II. LEGAL STATUS OF THE AUTOMOBILE. 1 18. Automobile is Lawful Conveyance. 19. Automobile Is Not a Nuisance. 20. Same — ^Not a Dangerous Machine. 21. Same — Not Classed with Ferocious Animals. 22. Same — Noises Incident to Operation. 23. Same — Tendency to Frighten Horses. 24. Characteristics of the Automobile. 25. Same — Judicial Notice. 26. Status of the Bicycle. 27. Same— Is a Vehicle or Carriage. 28. Same— Held Not to Be a Vehicle or Carriage. ix Z CONTENTS BY SECTIONS. CHAPTER III. STATE POLICE REGULATIONS. § 29. Police Power Described. 30. Power of State to Regulate the Use of Property. 31. Limitation of Police Power. 32. Power of the State to Regulate the Use of Automobiles. 33. Repeal of Law by Implication in Regulation of Automobiles. 34. Necessity for Regulation. 35. Necessity for Uniform Regulation. 36. Regulation of Speed. 37. Speed, Having Regard to the Traffic on the Highway. 38. Construction of Penal Statutes Touching Automobiles. 3.9. EfEect of Partial Invalidity of Statutes Regulating Automobiles. 40. One Subject to be Expressed in the Title. 41. Automobile Regulation as Class Legislation. 42. Exempting Automobiles Kept in Stock — Construction of Statute. 43. Laws Applied to Automobiles Owned by Corporations, etc. 44. Stopping on Signal and Moving Forward when Necessary. 45. Meaning of "Steam" as Applied to Automobiles by Statute. 46. Construction of Phrase "Whenever It Shall Appear." 47. Meaning of "Ride or Drive." 48. Meaning of "Approaching." 49. Stopping on Signal. 50. Distinction between Stopping Vehicle and Stopping Motive Power. 51. Laws Regulating Traction Engines Not Applicable to Automo- biles. 52. Registration and Display of Number — Purpose. 53. Same — Constitutionality of the Law. 54. Same — Same — Taking of Property. 55. Same — Same — Personal Liberty. 56. Same — Same — ^Meaning of "Due Process of Law" or "Law of the Land." 57. Same — Same — Privileges and Immunities of Citizens. CHAPTER IV. MUNICIPAL OR LOCAL POLICE REGULATIONS. § 58. Police Power of Municipal Corporation. 59. Same — To Regulate Use of Streets. 60. Same — To Regulate the Speed of Automobiles. 61. Regulation of Automobile as a Public Vehicle. 62. Registration of Automobiles and Display of Number. 63. Construction of Charter Powers. 64. Police Ordinances. 65. Construction of Ordinances. CONTENTS BY SECTIONS. XI § 66. Construction of Ordinances Passed Under Express Power. 67. Construction of Ordinances Not Passed Under Express Power. 68. Construction of Penal Ordinances. 69. Discrimination — Class Legislation. 70. Distinction Between Regulate and Prohibit. 71. Scope of Phrase "Transporting Persons or Property." 72. Title of Ordinances. 73. Ordinance Void in Part. 74. Conflict of Ordinance with State Law. 75. Same Act may be an Offense against State Law and Municipal Ordinance. 76. Reward for Evidence of Violation of Speed Law. CHAPTER V. STATE LICENSE LAWS. § 77. License Laws Present Interesting Legal Questions. 78. License Defined. 79. Distinction Between "License Fee," "License Tax" and "Tax." 80. Power of State to License Automobiles. 81. Purpose of License. 82. License is Personal. 83. License may be Revoked. 84. License Fee Must be Reasonable. 85. Fixing the Amount of the Fee. 86. Revenue Incidentally Derived from License. 87. Disposition of License Fee. 88. License Fee Not a Tax on Automobiles. 89. County License — Necessary in Every County. 90. Mandamus to Compel Issuance of License. CHAPTER VI. MUNICIPAL OR LOCAL LICENSE LAWS. f 91. Power of Municipal Corporation to Impose License. 92. Construction of the Power to License and Tax. 93. Distinction between Power to License and Power to Tax. 94. Same — Power to License Does Not Imply the Power to Tax. 95. Power to Regulate Includes the Power to License. 96. Power to License and Regulate Implies Power to Charge License Fee. 97. Amount of License Fee. 98. Same — ^Unreasonable Fee — Illustrations. 99. Power to License or Regulate Does Not Imply Power to Prohibit. 100. License Fee Not a Tax on Automobiles. 101. License Fee from Both State and City. 102. Uniform Rate of Taxation. 103. Classification of Subjects of License. 104. Unreasonable Searches and Seizures. xii CONTENTS BY SECTIONS. CHAPTER VII. FEDERAL LAWS AFFECTING THE AUTOMOBILE. S 105. Federal Control of Automobiles. 106. Automobiles in United States Mail Service. 107. Customs Duties on Automobiles. 108. Automobiles Carrying Gasoline on Passenger Vessels. 109. Automobiles in Interstate Commerce. 110. Taxing Automobiles Used in Interstate Commerce. 111. Automobiles Operating Between Two States. CHAPTER VIII. RIGHTS AND DUTIES ON THE HIGHWAY. § Ilia. Scope of Chapter. 112. Highway Defined. 113. Turnpike Defined. 114. Use of Highway. 115. Use of Automobiles on Highways. 116. Rights of Automobiles on Turnpikes. 117. Duty of Municipal Corporation to Keep Highways in Repair. LAW OF THE ROAD. § 118. General Consideration. 119. Care Required of Operator of Automobile. 120. Right-of-Way on Highways. 121. Duty to Turn to the Right. 122. Same — When Not Meeting other Vehicles. 123. Vehicles Passing in Same Direction. 124. With Regard to Pedestrians. 125. Driving on Wrong Side of Highway. 126. Duty of Automobile Operator when Meeting Horses. 127. Same — Statutory Regulations. 128. Care in Turning Street Corners. 129. Racing in Highway. 130. Rights and Duties as Between Street Cars and Automobiles. 131. Assumption that Others Will Exercise Due Care. CHAPTER IX. THE CHAUFFEUR. § 132. Definition and Origin of the Word "Chauffeur." 133. The Position of Chauffeur. 134. The Chauffeur's License. CONTENTS BY SECTIONS. ^^^ CHAPTER X. THE RELATION OP OWNER AND CHAUFFEUR, AND OWNER AND BORROWER. § 135. The Relation of Master and Servant. 136. When the Relation of Master and Servant Exists. 137. Liability of the Master for the Acts of the Servant. 138. When the Master Is Not Liable for the Acts of His Servant. 139. Same — Illustrations. 140. Scope of Employment. 141. Parent and Child. • 142. Presumption as to Chauffeur Acting within the Scope of His Employment. 143. Evidence of the Relationship. 144. Test of the Master's Liability. 145. Master Allowing Servant to Use Dangerous Facilities. 146. Authority of Chauffeur to Bind Owner for Repairs. 147. Automobile Hired to Third Persons. 148. Owner Not Liable for Acts of Borrower. CHAPTER XI. NEGLIGENCE; AND HEREIN OF THE NEGLIGENT OPERATION OP AUTOMOBILES ON THE HIGHWAYS. § 149. The Subject of Negligence. 150. Negligence Defined. 151. Ordinary Care — General Consideration. 152. Ordinary Care Defined. 153. Degrees of Negligence. 154. Degree of Care Required. 155. Same — ^With Reference to Children. 156. Contributory Negligence. 157. Imminent Peril. 158. Gross Negligence. 159. Criminal Negligence in Operating Automobile. 160. Negligence and Contributory Negligence Questions for the Jury — ^When. 161. Negligence of Parents and Children. 162. Use of Automobile not Negligence per se. 163. Mutual Rights and Duties. 164. Excessive Speed as Negligence. 165. Evidence of Speed. 166. Noise of Automobile as Negligence. 167. Evidence as to Noise of Automobile. 168. Frightening Horses. 169. Same — Illustrations. 170. Same — Statutory Duty. XIV CONTENTS BY SECTIONS. § 171. Injuries to Pedestrians. 172. Laborers in Street. 173. Accidents Between Street Crossings. 174. Leaving Automobile Unattended in the Highway. 175. Collisions between Automobiles and Other Vehicles. 176. Street Car Striking Automobile — Illustrations. 177. Negligence in Crossing Bridges with Great "Weight. 178. Care Required at Railroad Crossings. 179. Violation of Statute or Ordinance as Constituting Negligence. 180. Negligence of Chauffeur Not Imputable to Passenger. 181. Passenger Is Bound to Exercise Care. 182. Liability of Joint Tort Feasors. 183. Complying with Automobile Laws — Presumption. CHAPTER XII. DAMAGES DUE TO NEGLIGENCE. §184. The Subject of Damages. 185. Damages Defined. 186. Damages — General Consideration. 187. General Damages. 188. Special Damages. 189. Actual or Compensatory Damages. 190. Exemplary Damages. 191. Nominal Damages. 192. . Measure of Damages. 193. Same — for Personal Injuries. 194. Same — Same — Not Excessive — Illustrations. 195. Same — Same — Excessive Damages — Illustrations. 196. Same — Loss of Time. 197. Same — Parent Recovering for Injury to Child. 198. Same — Husband Recovering for Loss of "Wife's Services. 199. Same — for Injuries to Property. 200. Same — Same — Usable Value of Property. CHAPTER XIII. THE GARAGE AND GARAGE KEEPER. § 201. Garage Keeper Defined. 202. Garage Not a Nuisance per se. 203. Storing of Explosives as Constituting a Nuisance. 204. Same — Gasoline. 205. Duty of Garage Keeper in Hiring Chauffeur. 206. Duty of Garage Keeper in Letting Vehicles. 207. Duty of Garage Keeper as to Care of Automobiles. 208. Care Required of Hirer of Automobile. 209. Garage Keeper's Lien. 210. Garage Offensive to Neighborhood — Restrictions as to Use of Property. CONTENTS BY SECTIONS. XV CHAPTER XIV. ACTIONS AGAINST THE OWNER OR CHAUFFEUR FOR VIOLA- TIONS OF STATE OR MUNICIPAL POLICE REGULATIONS. § 211. Arrest Without Warrant. 212. Charging an Offense. 213. Jurisdiction of Court. 214. Uncertainty of Statute. 215. Duplicity in Alleging Offense. 216. Summary Trial and Trial by Jury. 217. Two Punishments for the Same Act 218. Violating Speed Regulations. 219. Obstructing Traffic. 220. Owner Allowing Chauffeur to Violate Speed Law. 221. Displaying Borrowed License Tags. CHAPTER XV. CONTRACTS TOUCHING THE IVIANUPACTURB AND SALE OF AUTOMOBILES. I 222. Purpose and Scope of Chapter. 223. Express Warranty on Automobile. 224. Implied Warranty on Automobile. 225. "Seller's Talk" Not Warranty. 226. Remedy for Breach of Warranty. 227. Same — ^Return of Automobile for Breach. 228. Rescission of Contract must be in Reasonable Time. 229. Measure of Damages for Breach of Warranty. 230. Automobile Warranted Satisfactory to Purchaser. 231. Meaning of "Agency." 232. Breach of Contract as to Territorial Right of Agent. 233. Agent Partially Effecting Sale — Commission. 234. Dissolution of Partnership Acting as Agent. 235. Right to Abandon Contract of Agency Gives Right to Cancel Order. 236. Ordering Automobiles. 237. Rescission of Contract — ^Recovery of Advance Payment 238. Failure to Deliver Automobile on Time. 239. Written Contract of Sale of Automobile is Conclusive. THE LAW OF AUTOMOBILES CHAPTER I. DEFINITIONS AND GENERAL CONSIDERATION. i 1. Origin of term "automobile." 2. Automobile variously defined. 3. The term "automobile" as used in this work. 4. Automobile terms defined. 5. Statutory definitions of auto- mobile. 6. Classification of automobiles. 7. Early history of the automo- bile. 8. Recent inventions and devel- opments of the automobile. ; 9. Growth of the automobile In- dustry. 10. Use of the automobile. 11. Automobile accidents. 12. Popularity and success of the automobile. 13. Automobile is a vehicle. 14. Automobile is a carriage. 15. Decisions that the automo- bile is a carriage. 16. Automobile held not to be a carriage. 17. History of the bicycle. §1. Origin of term "Automobile." "Auto" is an element in compound words of Greek origin meaning self, of itself (natural), of one's self (independently). It is very common in English and other modern languages, especially in scien- tific terms. "Mobile" comes from the Latin mobilis and signifies self- moving, or seLE-movable ; changing its own place, or able to effect a change of its own place. Thte term automobile, therefore, is derived from the Greek and Latin, and in modern Biiglish is applied generally to a self-moving vehicle designed to travel on common roads, and specifically, to a wheeled vehicle for use on roads without rails, which carries in itself a mechanical motor with its source of power .^ §2. Automobile variously defined. The automobile has been variously defined, as "a self-acting or self -regulating road wagon" ;2 " seK-propelling, self -moving, applied especially to 1 Century Diet, and Cyc, tit. 2 March's Thesaurus, tit. "Auto- "Automobile." mobile." 1 § 3 LAW OP AUTOMOBILES. motor vehicles, such as carriages and cycles of those types usually formerly propelled by horse or man; an autocar or horseless carriage ; " * and " as a self -moving carriage propelled by electric or other power." * Automobile is the generic name which has been adopted by popular approval for all forms of self-propeUing vehicles for use upon highways and streets for general freight and passen- ger service. However, this definition should not include such self-propelling machiaes as steam road rollers or traction en- gines designed for hauling loaded trucks or vans in traia, nor such vehicles as require tracks for their operation.^ In popular meaning, or as commonly understood, an automo- bile is a motor vehicle usually propelled by steam, electricity or gasoline, and carrying its own motive power within itself. Concerning the use of highways, as provided in some laws, the automobile falls within the appellation of "carriage" and "vehicle. "6 Automobiles are distinguishable from locomotives because they do not travel on a fixed track as the latter do. They are also distinguishable from locomotives and traction engines by carrying loads instead of drawing them in other vehicles. § 3. The term automobile as used in this work. The term automobile as used in this work may be defined as a self-pro- pelling vehicle or carriage for the transportation of persons or property and whose operation is not confined to a fixed track. This definition excludes the steam road roller, the traction engine, and such vehicles as run onjy on rails or tracks; and it may be observed that, by the use of the word "vehicle" in the sense in which it is employed in the definition above, it also excludes the flying machine. The definition includes the automobile-bicycle and automobile-tricycle. The definition is in accordance with both the popular and statutory acceptation of the term. Moreover so far as it has been judicially defined it is in harmony with the decisions.'^ 3 Standard Diet. Supp., tit. "Au- of highways, the Connecticut stat- tomobile." ute provides that "the word "vehi- * International Lib. of Ref., tit. cle' shall be construed to include "Automobile." bicycles, tricycles and motor-car- B 2 New International Ency., tit. riages." Gen. Stat. Conn. 1902, "Automobile." § 2038. • 28 Cyc. 24. Relative to the use t District of Columbia: Gassen- DEFINITIONS AND GENERAL CONSIDERATION. §4 § 4. Automobile terms defined. The automobile is various- ly referred to as auto, autocar, car, machiae,* motor, motor- car, and other terms equally as common, but neither compli- mentary nor endearing. However, these are merely popular terms and inaccurate. Thus, it has been held that the word "motor," as used in a statute empowering street railway com- panies, with the consent of the municipal authorities, to use electric or chemical motors as a propelling power of their cars, was intended to describe the motion producing contrivance of the car, and not the entire car.^ Other terms with their definitions are as follows : "Autocax: An automobile vehicle, especially for street travel." 10 "Autotruck: A self-propelling or self -moving truck adapted for heavy drayage."" "AutomobiUst: One who owns, rides in, or drives an auto- mobile." 12 ' ' Locomobile : A road locomotive. " ^ ' "Motor-car: A railway car carrying its own motor; a com- bined passenger car and locomotive ; an electric street car that draws a trailing car."" "Motor-car: A car which carries its own propelling mechan- ism, as an electric motor, pneumatic engine, steam engine, etc., heimer v. District of Columbia, 26 Granite Co. v. Pearson, 74 N. H. App. Cas. (D. C.) 557; Washing- 22, 64 Atl. 582. ton Electric Vehicle Transp. Co. v. Iflew York: Thies v. Thomas, 77 District of Columbia, 19 App. Cas. N. Y. Supp. 276, 279; Mallory v. (D. C.) 462. Saratoga Lake Bridge Co., 53 N. Illinois: Christy v. Elliott, 216 Y. Misc. 446, 104 N. Y. Supp. 1025; 111. 31, 40, 74 N. E. 1035, 1 L. R. Nason v. West, 31 N. Y. Misc. 583, A (N S.) 215, 108 Am. St. Rep. 65 N. Y. Supp. 651. 196- Chicago V. Banker, 112 111. Pennsylvania: Com. v. Hawk- ^ 94 ins, 14 Pa. Dist. 592, 594. 8 Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677, 14 L. R. A. (N. S.) 816. 9 State V. Trenton, 54 N. J. L. 92, 23 Atl. 281, 282. Massachusetts: Baker v. Fall 10 standard Diet. Supp. Indiana: Mclntyre v. Orner, 166 Ind. 57, 63, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359. River, 187 Mass. 53, 57, 72 N. B. „ standard Diet. Supp. 336. 12 Standard Diet. Supp. New Hampshire: Emerson Troy is Standard Diet. 1* Standard Diet. B5 LAW OP AUTOMOBILES. and is therefore a locomotive. Many such cars have sufficient power to draw other cars attached to them." ^^ "Automobile line: 'Stage line,' 'railroad line,' and 'auto- mobile line' are expressions which are ordinarily understood to mean a regular line of vehicles for public use operated be- tween distant points, and between different cities, and do not include hacks, stages, and automobiles which merely operate from point to point in one city for the transportation of the public." i« § 5. Statutory definitions of the automobile. The statutory definitions of the automobile are not uniform, but most of them are in accord to the extent that the term includes all vehicles propelled by power other than muscular power, ex- cept traction engines, steam road rollers, and such vehicles as run only on rails or tracks.^^ Some statutes exclude from their operation in express terms such mechanically propelled vehicles as street sprinklers,i^ 15 Cent. Diet. Montana, Laws 1905, p. 224, 16 Com. V. Walton, 31 Ky. L. sec. 4. Rep. 916, 104 S. W. 323. Nebraska, Laws 1907, p. 392, 17 California, Laws 1905, p. 816, sec. 1. 86''- 1- New Hampshire, Laws 1905, p. Connecticut, Laws 1907, p. 821, 498, sec. 1. S6C. 1. New Jersey, Laws 1906, p. 177, Delaware, Laws 1907, p. 270, pt. 1, sees. 1 and 2. sec. 19. New York, Cum. & Gil.'s Gen. Illinois, Laws 1907, p. 510, Laws, Supp., vol. 4, p. 1108, sec. sec. 1. 1, subd. 2. Indiana, Laws 1905, p. 202, Ohio, Laws 1906, p. 320, sec. 1. sec. 1. Rhode Island, Laws 1904, p. 36, Iowa, Laws 1904, p. 44, sec. 1. ^^^- '^■ Kansas, Gen. St. 1905, p. 97, sec. South Carolina, Laws 1905, p. 413. 967, sec. 8. Maryland, Laws 1906, p. 823, South Dakota, Laws 1905, p. sec. 140. 231, sec. 1. Massachusetts, Laws 1903, p. Tennessee, Laws 1905, p. 371, 511, sec. 13. sec. 1. Michigan, Laws 1905, p. 287, Vermont, Laws 1904, p. 106, sec. sec. 1. 13. Missouri, Laws 1907, p. 74, is Connecticut, Laws 1907, p. see. 1. 821, sec. 1. DEFINITIONS AND GENERAL CONSIDERATION. § 6 fire engines and apparatus,^^ police patrol wagons, and ambu- lances.2" The terms "automobile" and "motor cycle," as used in the statutes of New Hampshire, have been held by the courts of that state to include all vehicles propelled by other than mus- cular power, except railroad and railway cars and motor vehicles running only upon rails or tracks, and road roUers.^^ Under this statute the supreme court of that state declared that a road locomotive or traction engine used to draw cars on the highway was included within its operation.^^ Unless expressly excluded, the motor-cycle falls within the definition of the automobile as the term has been used by the various state legislatures, and also within the general definition as heretofore given. But unless, upon strict construction of the statute, a vehicle is fairly included withia its operation, it will not apply. These statutes impose a penalty for their violation, and, therefore, in case of reasonable doubt, must be resolved in favor of the individual and against the state. ^^ § 6. Classification of autoimoibiles. The number of wheels of an automobile may be two, and then the term "bicycle" is applied, or "automobile-bicycle," as sometimes called; or three, when it is called "tricycle" or "automobile-tricycle"; or four or more. Those with four wheels is the most usual form, and they are constructed for a great variety of pur- poses, such as carriages and cabs for two or more persons, omnibuses, merchants' delivery wagons and drays ; in fact, for every purpose for which a vehicle is used. As relates to the motive power automobiles may be classi- fied as compressed-air automobiles, electric automobiles, petro- leum automobiles and steam automobiles. i» Connecticut, Laws 1907, p. Connecticut: Morin v. Newbury, 821, sec. 1. 79 Conn. 338, 340, 65 Atl. 156. New Jersey, Laws 1906, p. Maine: State v. "Wallace, 102 177, pt. 1, sees. 1 and 2. Me. 229, 232, 66 Atl. 476. 20 Connecticut, Laws 1907, p. Ohio: Conrad v. State, 75 Ohio, 821, sec. 1. St. 52, 78 N. E. 957, 959, 6 L. R. 21 New Hampshire, Laws 1905, A. (N. S.) 1154. p. 498, sec. 1. Pennsylvania: Com. v. Dens- 22 Emerson Troy Granite Co. v. more, 29 Pa. Co. Ct. 217, 219. Pearson, 74 N. H. 22, 64 Atl. 582, United States: United States v. 583. American Surety Co., 200 U. S. 23 Alaska: United States v. Doc- 197, 203, 26 Sup. Ct. 168, 50 L. Noch^een, 2 Alaska 624, 627. Ed. 437. § 7 LAW OP AUTOMOBILES. A oompressed-air automobile is one which is propelled by an air motor. An electric automobile is one propelled by an electric motor. A petroleum automobile is an automobile which is propelled by a motor of the gas-engine type, that uses petroleum, or such derivatives of petroleum as gasoline or naphtha. A steam automobile is one which is propelled by a steam engine. This type is designated also as a steam carriage or a steam wagon.^* As respects their use automobiles may be classified as pas- senger automobiles, runabouts, racers, freight, public for hire, and private. §7. Early history of the automobile. Although the auto- mobile as we know it today is of recent origin the inception of the steam carriage dates back to the early days of the steam engine itself. As early as 1619 a patent was issued, in Eng- land, for a "horseless carriage" to Ramsey and Wildgoose, but it seems that nothing ever came of the invention. In 1680 Sir Isaac Newton proposed a steam carriage to be propelled by the reaction of a jet of steam issuing from a nozzle at the rear of the carriage. In 1769-70, Nicholas Joseph Cugnot, a French- man, built two steam carriages, one of which was designed for the transportation of artillery and is still preserved in Paris; the other was a three-wheel vehicle propelled by a small steani engine, and carried two passengers at the rate of two miles an hour. Murdock, in 1784, and Nathan Read, in 179,0, invented steam carriages, and in 1786 Oliver Evans, of the United States, suggested the use of steam road wagons to the Lancaster Turnpike Co., of Maryland. However, Richard Trevithick was the pioneer of practical locomotion on common roads. In 1802 Trevithick built a carriage which he exhibited in London, where he had driven it from Camborne, a distance of ninety miles. Burstall and Hill invented a carriage about the year 1820 ; but their carriage weighed about eight tons, and was unable to attain anything like adequate speed. W. H. James, in 1823, built a carriage in which a tubular boiler was used for the first time. In 1829, James constructed a vehicle which maintained a speed of twelve miles an hour, carrying fifteen passengers. 2* Century Diet. & Cyc, tit. "Automobile." 6 DEFINITIONS AND GENERAL CONSIDERATION. § 8 Among the more prominent of the early inventors was Sir Guldeworthy Gurney, who patented a steam carriage in 1825. A few years later he established a regular passenger service of steam coaches between Gloucester and Cheltenham. In form these carriages much resembled the old stage coach, and weighed three or four tons without a load. They attained an average speed of ten or twelve miles an hour. Gurney was the first to undertake the construction of a light vehicle to carry two or three people, and weigh about 500 pounds. Even more prominent among the pioneers was Walter Han- cock, who carried on his work between 1824 and 1836. One of Hancock's machines was in regular service between Strat- ford, Paddington and Islington for twenty weeks, traveling 4,200 miles, and carrying 12,761 passengers during that time. Dr. Church built a double decked omnibus to carry fifty people, but because of the prejudice against conveyances of this kind in England it was not a success. In fact, owing to the devel- opment of the railroad and the opposition of the turnpike trustees, Hancock 's were the only steam carriages operating on the highways of England in 1836, and soon thereafter these, too, disappeared. During 1832 there were fifty-four bills in- troduced in Parliament seeking to place a special tax on st6am carriages. On the Ashburnham and Totnes road the toll on mechanically propelled carriages was two pounds, while that for a coach and four horses was only three shillings.^s §8. Recent inventions and developments of the auto- mobile. The modern period of invention and improvement of the automobile may be said to have commenced in 1884, al- though the honor of inventing the first vehicle propelled by an internal combustion engine probably belongs to M. Lenoir, a Frenchman, who, it is believed, constructed such a vehicle in 1862. Gottlieb Daimler, a German, now known as the "Father of the Automobile," was the first to construct a successful internal combustion engine, which he invented in 1884, fol- lowing in 1885 with his single-cylinder, inclosed-erank and fly- wheel engine. In 1889 Daimler sold the French and Belgian patents of his invention to Messrs. Panhard and Levassor, manufacturers of wood-working machinery. The first of the 25Ency. Britannica (New Vol- biles;" Nelson's Ency., tit. "Motor umes), tit. "Motor Vehicles;" New Cars." International Ency., tit. "Automo- 7 § 9 LAW OF AUTOMOBILES. "Panhard" cars were built in 1891, since which time they have become universally known. In 1885 Carl Benz _ invented a single horizontal cylinder, water- jacketed engine, which he applied with success to a three-wheel carriage. M. Leon Ser- poUet, in 1889, invented a water tube boiler, which he used with success ia connection with a motor vehicle in 1894. About this time inventions of this kind, and also of the electrically pro- pelled vehicles, became quite numerous ia France and America.26 The development of the automobile in England was long re- tarded by hostile legislation and public prejudice. The Etaglish act relating to "Locomotives on Highways" was passed in 1861, and in 1865 the opponents of the "locomotives" achieved their greatest success in the enactment of a law which, among other things, prescribed that the number of persons required to drive the locomotive should be increased to three; that a man should precede with a red flag; that the maximum limit of speed should be reduced to four miles an hour; and that they should be forbidden ever to blow off steam. It was not until 1896 that the chief prohibitory clauses of these laws were repealed.^^ § 9. Growth of the automobile industry. In the past four or five years the automobile business in the United States has grown from an infant industry into one of the largest of the country, the greatest effort having been expended to- wards the construction of cars for touring and recreation. There are many clubs which arrange tours and races, and seek to promote the construction of good roads and further the rights of the automobilist on the highway and to foster gener- ally the welfare of the business. The estimated sales of automobiles for 1903 amounted to less than $8,000,000, while in 1907 they had increased to $105,- 000,000. In 1907 about 52,000 ears were made and sold, many of them of the smaller type. It is estimated that the present capital of the automobile business in the United States is over $100,000,000, with an additional $36,000,000 in kindred trades, and $57,000,000 more in garages and retail salesrooms. There 28Ency. Britannlca (New Vol- biles;" Nelson's Ency., tit. "Mo- umes), tit. "Motor Vehicles;" New tor Cars." International Ency., tit. "Automo- s^ Ency. Britannica (New Vol- umes), tit. "Motor Vehicles." 8 DEFINITIONS AND GENERAL CONSIDERATION. §§ 10-11 are employed in the automobile factories of this country 58,000 persons. Since the Motor Vehicle law of the state of New York went into effect there were registered in that state 64,800 automobiles up to January first, 1909; and during the year 1908 there were, in round numbers, 15,000 registered. The United States is easily first among the nations in the manufacture of automobiles, and its trade, -domestic and for- eign, is increasing rapidly. The number of machines sold in 1908 probably equaled that of 1907. There was a falling off in the demand for the big and expensive cars, while a marked increase was shown in the demand for the smaller types. § 10. Use of the automobile. While the automobile has supplied one of the most popular forms of recreation, its value as an express and drayage vehicle is also appreciated. It has the advantage of combined strength and speed. For quick delivery it cannot be equaled, and at the same time it is capable of drawing very heavy loads. For use in large cities on paved streets, it is rapidly supplanting horse drawn vehicles. It has been adopted by many cities in fire service and ambulance work, where speed is most essential. It is being used by police officers of some cities to regulate automobile traffic and restrict the speed of too reckless chauffeurs. Great world tours are now made in automobiles, and, as their use becomes more com- mon, danger from their operation on country roads is greatly reduced.^* They have been employed to great advantage in army service, replacing, to some extent, both the horse and the old style vehicle. In fact, they have served in place of every kind of vehicle, from the dray as one extremity to the express train as the other.29 §11. Automobile accidents. The growing and extending use of the automobile is indicated by the reported accidents due to its use during the last few years. In 1908 authentic records disclose the fact that accidents occurred in four hun- dred and thirty-three places, as compared with three hundred and sixty-two places in 1907, and one hundred and ninety-two in 1906. In fifty-one of the large cities of the United States, during 1908, there were one hundred and seventy-five killed and eight hundred and fifteen injured by automobiles. In three 28 Ex parte Berry, 147 Cal. 523, 20 Nelson's Bncy., tit. "Motor 82 Pac 44, 109 Am. St. Rep. 160. Cars." 9 § 12 LAW OF AUTOMOBILES. hundred and eighty-two smaller towns and villages throughout the country one hundred and fifty-three were killed and nine hundred injured in the same year. While these figures are probably not exact, they are as authentic as it was possible to obtain. §12. Populaxity and success of the automobile. Much of the popularity and success of the automobile have been due to frequent prize contests, which have been the means of acquaint- ing the people with the many advantages of the new machine. The first of these was organized in France by the Petit Jour- nal in 1894, and was run from Paris to Rouen. The following year one was run from Paris to Bordeaux and return. This race was won by M. Levassor, who covered the distance of 744 miles without a breakdown, and at a mean speed of fifteen miles an hour. The same year, 1895, the Times-Herald contest was inau- gurated in America, but the results achieved were not satis- factory on account of the unfavorable condition of the weather. After the repeal of the chief prohibitory clauses of the "Loco- motives Act," in 1896, the inaugurating race in England was run from London to Brighton. The next few years brought about many wonderful contests and exhibitions of speed which conclusively showed that as a mode of rapid transit the automobile is easily first. It is with respect to the speed attained by the automobile that the most remarkable developments have been made ; indeed, our modern express trains have been outdone by this popular road carriage. At Ormond Beach, Florida, January 26, 1906, a distance of one mile was traveled by Marriott on a fifty horse-power Stan- ley steam car in twenty-eight and one-fifth seconds. The automobile has met with much prejudice and opposition, due to a great extent to reckless operators, but it has made its own friends, and its popularity has grown until it stands with- out an equal as a means of pleasure and recreation, and as a practical vehicle of commerce. It is only necessary for one to feel this powerful machine yield to his slightest touch, obey his every command, and to experience the exhilarating effect of gliding swiftly and smoothly through the air, to be con- verted to a friend of the automobile.^" soEncy. Britannica (New Vol- biles;" Nelson's Bncy., tit. "Mo- umes), tit. "Motor Vehicles;" New tor Cars." International Ency., tit. "Automo- 10 DEFINITIONS AND GENERAL CONSIDERATION. §13 §13. Aut&mobile is a vehicle. The word i" vehicle" means any carriage moving on wheels or runners used, or capable of being used, as a means of transportation on land.^^ The auto- mobile comes within this definition; in fact, the courts have unhesitatingly declared the automobile to be a vehicle.*^ Thus an automobile used for hire in the District of Columbia, for which the owner has a public hack license, is a vehicle with- , in the meaning of a police regulation which provides that vehicles for hire, seeking employment, shall not loiter on the 81 Vehicle defined: "The word 'vehicle' includes every descrip- tion of carriage or other artificial contrivance used, or capable of being used, as a means of trans- portation on land." TJ. S. Comp. St. 1901, p. 4; Anderson's Law Diet., tit. "Vehicle;" Black's Law Diet., tit. "Vehicle;" Bouvier's Law Diet., tit. "Vehicle." A vehicle is "any carriage mov- ing on land, either on wheels or on runners." Cent. Diet., tit. "Ve- hicle." "Vehicle; That in which any- thing is or may be carried, as a coach, wagon, cart, carriage, or the like." Webster's Diet., tit. "Vehicle." "A vehicle is any carriage mov- ing on land, either on wheels or runners; a conveyance; that which is used as an instrument of conveyance, transportation or communication." Davis, v. Petrin- ovich, 112 Ala. 654, 21 So. 344, 36 L. R. A. 615. A sprinkling cart is a vehicle. St. Louis v. Woodruff, 71 Mo. 92. 32 Delaware: Simeone v. Lind- say, Del. (1907), 65 Atl. 778, 779. District of Columbia: Gassen- heimer v. District of Columbia, 26 App. Cas. (D. C.) 557; Washing- ton Electric Vehicle Transp. Co. v. District of Columbia, 19 App. Cas. (D. C.) 462. Illinois: Christy v. Elliott, 216 111. 31, 40, 74 N. B. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196; Chicago v. Banker, 112 111. App. 94. Indiana: Mclntyre v. Orner, 166 Ind. 57, 63, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359; Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. B. 615, 1 L. R. A. (N. S.) 238. Iowa: House v. Cramer, 134 la. 374, 376, 112 N. W. 3, 10 L. R. A. (N. S.) 655. Missouri: State v. Swagerty, 203 Mo. 517, 523, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. St. Rep. 671. New Hampshire: Bmerson Troy Granite Co. v. Pearson, 74 N. H. 22, 64 Atl. 582, 583. New York: Cunningham v. Castle, 111 N. Y. Supp. 1057, 1061; Mallory v. Saratoga Lake Bridge Co., 53 N. Y. Misc. 446, 104 N. Y. Supp. 1025; Nason v. West, 31 N. Y. Misc. 583, 65 N. Y. Supp. 651. Pennsylvania: Com. v. Haw- kins, 14 Pa. Dist. 592, 594. An automobile is a vehicle of quite recent times, carrying its motive power within itself. Thies V. Thomas, 77 N. Y. Supp. 276, 279. The automobile Is a vehicle in common use for transporting both persons and merchandise upon 11 § 14 ' LAW OF AUTOMOBILES. streets, except at the regular public stands. ^^ But it was decided in another case in the District of Columbia, that an electric automobile, though a carriage, does not belong to the classes of vehicles made the subjects of license tax by an act imposing a tax on the proprietors of hacks, cabs, omnibuses, and other vehicles for the transportation of passengers for hire, not having been known and in use at the time of the passage of the aet.^* However, the better law and the weight of opinion is that they are included in the meaning of such terms, and the fact that they were unknown at the time the law was passed is not material.^^ Thus, because automobiles were not known at the time of the dedication of a public high- way is no reason for excluding them from the use of such highway on equal terms with vehicles known and in common use at the time.*^ §14. Automobile is a carriage. The automobile is a car- riage in both the broad and restricted sense in which the word is used.*'^ In its broadest sense the word "carriage" means anything that carries a load.*^ When used to describe a vehicle, it is not always confined to one class of vehicles, but is often used as a generic term for that which carries.^^ public highways. Baker v. Pall Rep. 1143, 77 S. W. 196, 105 Am , River, 187 Mass. 53, 57, 72 N. B. St. Rep. 249. 336. Michigan: Macom'ber v. Nichols, 33 Gassenheimer v. District of 34 Mich. 212, 217, 22 Am. Rep. 522. Columbia, 26 App. Cas. (D. C.) New York: Knight v. Lanier, 557. 69 N. Y. App. Div. 454, 458, 74 N. 34 Washington Electric Vehicle Y. Supp. 999. Transportation Co. v. District of S7 Washington Electric Vehicle Columbia, 19 App. Cas. (D. C.) 462, Transp. Co. v. District of Colum- 35 Com. V. Hawkins, 14 Pa. Dist. bia, 19 App. Cas. (D. C.) 462; Ba- 592, 593. ker v. Fall River, 187 Mass. 53, 3i Illinois: Moses v. Pittsburg, 57, 72 N. E. 336; Nason v. West, F. W- & C. R. Co., 21 111. 516, 523. 31 N. Y. Misc. 583, 65 N. Y. Supp. Indiana: Indiana Springs Co. v. 651; Com. v. Hawkins, 14 Pa. Brown, 165 Ind. 465, 74 N. E. 615, Dist 592, 593; N. Y. Gen. Laws, 1 L. R. A. (N. S.) 238; Wabash, vol. 2, p. 1629, sec. 162. St. Li. & P. R. Co. V. Farver, 111 as Conway v. Jefferson, 46 N. H. Ind. 195, .198; Bogue v. Bennett, 521, 523; Abbott's Law Diet., tit. 156 Ind. 478, 482, 83 Am. St. Rep. "Carriage;" Cent. Diet., tit. "Car- 212. riage." Kentucky: Shlnkle v. McCul- S9 Abbott's Law. Diet, tit "Car- lough, 116 Ky. 960, 965, 26 Ky. L. riage." 12 DEFINITIONS AND GENERAL CONSIDERATION. § 15 In a New Hampshire case it was held that the word "car- riage" was intended to include whatever carried a load, whether upon wheels or runners.*^ But, by the more common use of the word, its meaning is restricted to vehicles for the transportation of persons, like the carriage which may be seen in daily use on our city streets.*^ It has been declared that the word is intended to convey the idea of a vehicle used for the transportation of persons either for pleasure or business, drawn by horses over the streets and highways, and not cars used only on railroads constructed for their use.*^ § 15. Decisicms that the automobile is a carriage. A vehicle described iu a crimiaal charge as "A wagon drawn by four horses, and used in the transportation of property," was held not to be included in an ordinance requiring owners of a "hackney coach, carriage, omnibus, or dray" to pay a license for the privilege of using the same on the city streets.** A nisi prius court in Pennsylvania decided that the auto- mobile is a carriage within a statute empowering cities to regu- late and license certaia enumerated vehicles, "and every de- scription of carriage,"** and the fact that such a conveyance was not known at the time that the law was passed, is imma- terial.* ^ So by the supreme judicial court of Massachusetts, one injured while riding in an automobile, due to a defective public highway, was held not to be precluded from recovery be- cause of the nature of the vehicle in which he was riding.** *o Conway v. Jefferson, 46 N. 165 Ind. 465, 74 N. E. 615, 1. L. H. 521, 523. R. A. (N. S.) 238; Baker v. Fall *i Snyder v. North Lawrence, 8 River, 187 Mass. 53, 56, 72 N. E. Kan. 82, 84; Cream City R. Co. 336; Richardson v. Danvers, 176 V. Chicago etc. R. Co., 63 Wis. 93, Mass. 413; Com. v. Hawkins, 14 21 Am. & Bng. R. Cas. 70; An- Pa. Dist. 592. But see, Washington derson's Law Diet., tit. "Car- Electric Vehicle Transp. Co. v. riage;" Black's Law. Diet, tit. District of Columbia, 19 App. Cas. "Carriage." (D. C.) 462. *2 Cream City R. Co. v. Chicago ^« Baker v. Fall River, 187 Mass. etc. R. Co., 63 Wis. 93, 21 Am. & 53, 56, 72 N. E. 336. Eng. R. Cas. 70. A statute providing that bigh- ts Snyder v. North Lawrence, 8 ways be kept in repair so that Kan. 82. they may be reasonably safe for *4 Com. V. Hawkins, 14 Pa. Dist. travelers and their horses and 592, 593. carriages, is not to be confined to *B Indiana Springs Co. v. Brown, the same kind of vehicles in use 13 §§ 16-17 LAW OF AUTOMOBILES. And in a New Jersey ease it was declared that the automobile is a carriage within the meaning of a covenant in a deed re- serving a strip of land for a carriage way.*'' §16. Automobile held not to be a carriage. In an action against a town for an injury to an automobile caused by a de- fective highway, the supreme judicial court of Massachusetts held that an automobile is not a carriage within the meaning of a statute requiring cities and towns to keep their highways in repair so that they may be reasonably safe and convenient for travelers with their horses, teams and carriages, since the carriages referred to are those drawn by animal power.** In this case it was said, "When towns were first required by law to keep their highways and town ways reasonably safe and con- venient for travelers, with their horses, teams and carriages at all seasons of the year, there was no thought of putting upon them such a burden as would be imposed if they were compelled to keep all these ways in such a condition that automobiles could pass over them safely and conveniently at all seasons." § 17. History of the bicycle. The position of the automobile and the bicycle, in the view of the law are so nearly alike that it is well to refer briefly to the history of the bicycle, as the principles of law applicable will necessarily be referred to in this work. However, no new principles of law are involved; the courts are merely applying old principles to a new and novel mode of conveyance.*^ It has ever been man's endeavor to construct a vehicle that would "go by itself"; one whose propulsion would not require the application of muscular power. "While the bicycle did not do away with the use of muscular energy, it did minimize its use to a great degree when the distance that can be traveled in a given time is considered. The earliest use of the bicycle of which we have authentic proof was by Baron von Drais, a German, of Mannheim, about 1818. This machine, which was called a "draisine," after the at the time of the passage of the N. E. 677, 14 L. R. A. (N. S.) statute. Richardson v. Danvers, 816. 176 Mass. 413. "Diocese of Trenton v. Toman, The term "carriage" includes N. J. Ch. — (1908), 70 Atl. 606. automobiles. N. Y. Gen. Laws, *8Doherty v. Ayer, 197 Mass. vol. 2, p. 1629, sec. 162. 241, 83 N. E. 677, 14 L. R. A. (N. The automobile is a carriage in S.) 816. a broad sense of the -word. Do- ■*» Hannigan v. "Wright, 5 Pen- herty v. Ayer, 197 Mass. 241, 83 new. Del. Rep. 537, 540, 63 Atl. 14 DEFINITIONS AND GENERAL CONSIDERATION. § 17 inventor, was propelled by the rider, who sat on a bar which connected the two wheels, by strikiag his feet against the ground. It was fitted with a saddle, and with a hand-bar for steering and for rest. The inventor built it to assist him in the performance of his duties as chief forester to the Grand Duke of Baden. In 1891 a handsome monument was erected in memory of Baron von Drais, the "Father of the Bicycle," over his grave at Karlsruhe, the expenses of which were borne by bicyclists. In 1840 Kirkpatrick Macmillan, a blacksmith of Dumfries- shire, Scotland, put cranks and pedals on the bicycle. In form Macmillaxi's machine was much like the safety bicycle of today, and it was not until the year 1867 that the ' ' ordinary, ' ' the bicycle with the big front wheel was invented. These early machines were clumsy affairs with rough iron frames and |;ires and wooden spokes. The steel suspension wheel was introduced about 1870. The "Safety" was probably invented by Michaux, a French- man, but it owes its success to J. K. Starley, of England, who put the bicycle on a practical basis in 1885. In 1888 J. B. Dunlop, a veterinary surgeon of Belfast, Ireland, who had never ridden a bicycle, invented a practical pneumatic tire, which, applied to the "safety," converted it into a luxurious vehicle and insured it permanent popularity. The years 1895-96-97 witnessed an extraordinary growth in the bicycle trade. And for a time the trade was very prosperous and a vast amount of capital was invested in this branch of manufacture in the United States, Great Britain, France and Germany. But the demand for wheels soon de- creased so rapidly that many bankruptcies ensued among the companies who confined themselves to the single line of in- dustry. The bicycle has been put to many important uses; it was, and to an extent still is, popular as a touring vehicle, and for recreation, and its value in war is considerable. However, cycling has gone out of fashion to a great extent, and the auto- mobile, an invention which has entirely done away with mus- cular power as a means of locomotion, has taken its place.^** 234; House v. Cramer, 134 la. umes), tit. "Motor Vehicles;" New 374, 376, 112 N. W. 3, 10 L. R. A. International Ency., tit. "Automo- (N. S.) 655. biles;" Nelson's Ency., tit. "Motor BO Ency. Britannica (New Vol- Cars." 15 CHAPTER II. LEGAL STATUS OF THE AUTOMOBILE. § 18. Automobile is lawful con- veyance. 19. Automobile is not a nui- sance. 20. Not a dangerous machine. 21. Not classed with ferocious animals. 22. Noises incident to operation. ! 23. Tendency to frighten horses. 24. Characteristics of the auto- mobile. 25. Judicial notice. 26. Status of the bicycle. 27. Is a vehicle or carriage. 28. Held not to be a vehicle or carriage. §18. Automobile is lawful conveyance. While the auto- mobile is new in its use and novel in its construction and operation, there is nothing new in the principles of law that apply to its use on the highways.^ Such use is lawful, and its rights, subject to statutory regulations, are the same as other vehieles.2 Not only are these rights recognized and enforced 1 Hannigan v. Wright, 5 Pen- new. Del. Rep. 537, 63 Atl. 234; House V. Cramer, 134 la. 374, 376, 112 N. W. 3, 10 L. R. A. (N. S.) 655. 2 Delaware: Hannigan v. Wright, 5 Pennew. Del. Rep. 537, 540, 63 Atl. 234; Simeone v. Lind- say, Del. (1907), 65 Atl. 778, 779. Illinois: Chicago v. Banker, 112 111. App. 94, 99; Christy v. Elliott, 216 111. 31, 48, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St Rep. 196; Moses v. Pittsburgh etc. R. Co., 21 111. 516. Indiana: Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. E. 615, 1 L. R. A. (N. S.) 238; Brink- man V. Pacholke, Ind. App. (1908), 84 N. E. 762, 764; Bogue V. Bennett, 156 Ind. 478, 482, 83 Am. St. Rep. 212; Wabash, St. L. & P. R. Co. v. Farver, 111 Ind. 195. 198, 12 N. E. 296, 60 Am. Rep. 696. Iowa: House v. Cramer, 134 la. 374, 376, 112 N. W. 3, 10 L. R. A. (N. S.) 655; Strand v. Grinnell Auto. Garage Co., — la. — (1907), 113 N. W. 488. Kentucky: Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 8 L. R. A. (N. S.) 1228, 1232; Shin- kle V. McCulIough, 116 Ky. 960. 965, 25 Ky. L. Rep. 1143, 77 S. W. 196, 105 Am. St. Rep. 249. Maine: Towie v. Morse, 103 Me. 250, 68 Atl. 1044. Michigan: Wright v. Crane, 142 Mich. 508, 106 N. W. 71, 12 De- troit Leg. N. 794; Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522. Missouri: State v. Swagerty, 203 Mo. 517, 523, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. 16 LEGAL STATUS. § 19 by the courts,* but many statutes also recognize them in com- mon with the rights of other vehicles.* As was said by the court in the case of House v. Cramer :^ "The right to make use of an automobile as a vehicle of travel along the highways of the state is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling by some other vehicle. But they are to use this means of locomotion with due regards for the rights of others having occasion to travel on the highways." In a word, their owners are subject to that well-known maxim of the law that, "A man must so use his own property as not to interfere with others in the use of theirs. ' '^ §19. Automobile is not a nuisance. The use of the auto- mobile as a mode of conveyance on the public highways is not a nuisance. In a well considered case the court said: "Any method of travel may be adopted by individual members of the public which is an ordinary method of locomotion, or even an extraordinary method, if it is not of itself calculated to pre- vent a reasonably safe use of the streets by others." "Any usual method of travel along the streets cannot be declared- a nuisance. "'' Any proper use of the highway may under some circum- stances iuterfere with its use by others, and possibly render it dangerous. The appearance of any unusual object in the high- way may have some tendency to add to the dangers of travel St. Rep. 671; O'Donnell v. O'Neil, Wisconsin: Wis. Laws 1905, ch. 130 Mo. App. 360, 109 S. W. 815; 305, sec. 5. Hall V. Compton, 130 Mo. App. s Brlnkman v. Pacholke, Ind. 675, 108 S. W. 1122. App. (1908), 84 N. B. 762, 764; Mew Jersey: Starr v. Camden Houte v. Cramer, 134 la. 374, 376, & A. E. Co., 24 N. J. L. 592. 112 N. W. 3, 10 L. R. A. (N. S.) New York: Corcoran v. New 655. York, 188 N. Y. 131, 139; 80 N. E. ^Wis. Laws 1905, ch. 305, sec. 660; Knight v. Lanier, 69 N. Y. 5. See statutes of the various App. Dlv. 454, 458, 74 N. Y. Supp. states. &39. 5 134 la. 374, 376, 112 N. W. 3, Pennsylvania: Radnor Town- 10 L. R. A. (N. S.) 655. ship V. Bell, 27 Pa. Super. Ct. 1. eWolf v. Des Moines Elevator Rhode Island: Bennett v. Co., 126 la. 659. Lovell, 12 R. I. 166, 34 Am. Rep. 'Chicago v. Banker, 112 111. 628. App. 94, 97; Chicago v. Collins, 175 111. 445, 456, 51 N. E. 907. 2 17 § 20 LAW OF AUTOMOBILES. by means of horse drawn vehicles. But merely because it may have a tendency to frighten horses and thereby imperil the use of the highway by others, is no ground for declaring the automobile to be a public nuisancCj and surrendering the highways to the exclusive use of vehicles drawn by horses.* §20, Same — Not a dangerous machine. While it is true that the operation of the automobile is attended with some dangers not common to the use of ordinary vehicles,^ it is not, on that account, to be classed as a dangerous machine within the meaning of the law requiring the owner of dangerous in- strumentalities to exercise a proper degree of care to guard, control, and protect them.io The law requires of persons having the possession and control of dangerous instrumentalities a degree of care commensurate with the dangerous character of the article ; and as the hazard from their use increases the responsibility of the person employ- ing them becomes stricter and may amount to insurance of safety.i^ The owner is liable for the improper use of them by 8 Holland v. Bartch, 120 Ind. 46, 92 Pac. 433, 434, 14 L. R. A. 52, 16 Am. St. Rep. 307; Wabash, (N. S.) 216. St. L. & P. R. Co. V. Parver, 111 ii Illinois: Reddick v. General Ind. 195, 199, 12 N. E. 296, 60 Am. Chemical Co., 124 111. App. 31, 34; Rep. 696. Palm v. Ivorson, 117 111. App. 535. "A street car, a steam thresh- Massachusetts: Bellino v. Go- ing machine, or a flre engine, lumbus Construction Co., 188 might frighten some horses, and Mass. 430, 74 N. B. 684; Welling- yet they are not regarded as ton v. Downer Kerosene Oil Co., nuisances per se, nor dangerous to 104 Mass. 64. have in common use, if handled Michigan: Macomber v. Nichols, with care." Chicago G. W. R. Co. 34 Mich. 212, 22 Am. Rep. 522. V. Kenyon, 70 111. App. 567, 569- Minnesota: Whittaker v. Stang- 570. vick, 100 Minn. 386, 391, 111 N. W. See also, Gilbert v. Flint & P. 295, 10 L. R. A. (N. S.) 921; M. R. Co., 51 Mich. 488, 47 Am. Mattson v. Minnesota & N. W. R, Rep. 592; Macomber v. Nichols, 34 Co., 95 Minn. 477, 104 N. W. 433, Mich. 212, 22 Am. Rep. 522; Bu- 70 L. R. A. 503, 111 Am. St. Rep! chanan's Sons v. Cranford Co., 112 483. N. Y. App. Div. 278, 98 N. Y. Supp. Missouri: Morgan v. Cox, 22 Mo. 378; Com. v. Allen, 148 Pa. St. 373; Paden v. Van Blarcom, 100 358, 16 L. R. A. 148, 33 Am. St. Mo. App. 185, 198, affirmed 181 Rep. 830. Mo. 117, 79 S. W. 1195. sLampe v. Jacobson, 46 Wash. Ohio: Railroad Co. v. Shields, 47 533, 536, 90 Pac. 654, 655. Ohio St. 387, 24 N. E. 658, 8 L. R. 10 Jones V. Hoge, 47 Wash. 663, A. 464, 23 Ohio L. J. 171, 18 18 LEGAL STATUS. § 20 a servant, even while acting outside the scope of his employ- ment.12 Accordingly it was contended that the owner of an auto- mobile was liable in damages where his chauffeur took the auto- mobile from the garage without his knowledge or permission and while using it on a personal errand ran over and injured a pedestrian. But the court rejected the contention, holding that, as the servant was not engaged in his master's business at the time of the accident, the owner was not liable merely be- cause he had made it possible for the servant to make use of the automobile.^' However, the possession of a powerful vehicle like the auto- mobile, which, if not carefully controlled, may become a source of great danger to others, imposes on the user the duty of ob- serving a degree of care proportionate to the danger its use involves.^* In one case it was attempted to hold the master responsible for the acts of the servant in negligently running into a person on the street while operating his master's automobile with the master's knowledge and consent, on the ground that the auto- mobile was a dangerous instrumentality, and that, having been intrusted to the chauffeur, the liability of the master still at- tached because of its dangerous character. But the court held that, "The automobile is not necessarily a dangerous device. It is an ordinary vehicle of , pleasure and business. It is no "Wash L. Rep. 577, 31 Cent. L. J. 92 Pac. 433. 14 L. R. A. (N. S.) 168. 8 Rail. & Corp. L. J. 441. 216. Texas: Galveston etc. R. Co. v. See also, Bellino v. Columbus Currle, Tex. (1906), 96 S. W. 1073, Construction Co.. 188 Mass. 430, 10 L. R. A. (N. S.) 367. 74 N. E. 684. Washington: Jones v. Hoge, 47 ^* Michigan: Wright v. Crane, Wash. 663, 92 Pac. 433, 434, 14 L. 142 Mich. 508, 106 N. W. 71, 12 R. A. (N. S.) 216. Detroit Leg. N. 794. 12 Bellino v. Columbus Construe- Minnesota: Whittaker v. Stang- tlon Co., 188 Mass. 430, 74 N. E. vick, 100 Minn. 386, 391, 111 N. 684; Railroad Co. v. Shields, 47 W. 295, 10 L. R. A. (N. S.) 921. Ohio St. 387, 24 N. E. 658, 8 L. R. Missouri: McFern v. Gardner, A. 464, 23 Ohio L. J. 171, 18 Wash. 121 Mo. App. 1, 97 S. W. 972. L. Rep. 577, 31 Cent. L. J. 168, 8 Rhode Island: Bennett v. Lov- Rail. & Corp. L. J. 441; Jones v. ell, 12 R. I. 166, 34 Am. Rep. 628. Hoge, 47 Wash. 663, 92 Pac. 433, Washington: Lampe v. Jacob- 14 L. R. A. (N. S.) 216. son, 46 Wash. 533, 536, 90 Pac. t8 Jones V. Hoge, 47 Wash. 663, 654. 19 §§ 21-22 LAW OF AUTOMOBILES. more dangerous jier se than a team of horses and a carriage, or a gun, or a sail boat, or a motor launch. "^^ §21. Same — Not classed with ferodous animals. The law that makes the owner of a vicious animal, who has knowledge of its vicious propensities, prima facie liable to any one in- jured by such animal which the owner has allowed to get be- yond his control,!^ does not apply to automobiles.^^ In a Georgia case it was aptly said: "It is not the ferocity of automobiles that is to be feared, but the ferocity of those who drive them. They are not to be classed with bad dogs, vicious buUs, and evil disposed mules and the like."^^ §22. Same — Noises incident to operation. The ordinary noises incident to the operation of the automobile are not, of themselves, negligent.!^ , 15 Cunningham v. Castle, 111 N. Y. Supp. 1057, 1061. te Alaiama: Hays v. Miller, Ala. (1907), 43 So. 818. California: Laverone v. Mangi- anti, 41 Cal. 138, 141, 10 Am. Rep. 269. Illinois: Knightlinger v. Bgan, 75 111. 141; Alilstrand v. Bishop, 88 111. App. 424, 427. Indiana: Partlow v. Haggarty, 35 Ind. 178, 180. Iowa: Parsons v. Manser, 119 la. 88, 93 N. W. 86, 62 L. R. A. 132, 97 Am. St. Rep. 283. Massachusetts: Marble v. Ross, 124 Mass. 44, 47, 6 Cent. L.. J. 157. Michigan: Snow v. McCracken, 107 Mich. 49, 64 N. W. 866. New Jersey: State v. Remhoffi, 55 N. J. L. 475, 479, 26 Atl. 860. New York: Muller v. McKesgon, 73 N. Y. 195, 199; Soronen v. Von Pustau, 112 N. Y. App. Div. 437, 98 N. Y. Supp. 431. Texas: Barklow v. Avery, Tex. Civ. App. (1905), 89 S. W. 417. Vermont: Oakes v. Spalding, 40 Vt. 347, 351. Washington: Harris v. Carstens Packing Co., 43 Wash. 647, 651, 86 Pac. 1125, 6 L. R. A. (N. S.) 1164; Lynch v. Kineth, 36 Wash. 368, 370, 78 Pac. 923, 104 Am. St. Rep. 958. United States: Spring Co. v. Ed- gar, 99 U. S. 645, 651, 25 L. Ed. 487. 17 Lewis V. Amorous, Ga. App. (1907), 59 S. E. 338, 340. 18 Lewis V. Amorous, Ga. App. (1907), 59 S. E. 338, 340. 19 Alabama: Stanton v. Louis- ville & N. R. Co., 91 Ala. 382, 386, 8 So. 798. Indiana: Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. E. 615, 1 L. R. A. (N. S.) 238. Iowa: House v. Cramer, 134 la. 374, 377, 112 N. W. 3, 10 L. R. A. (N. S.) 655; Wolf v. Des Moines Elevator Co., 126 la. 659. Maryland: Duval v. Baltimore & O. R. Co., 73 Md. 516, 21 AU. 496. Massachusetts: Favor v. Boston & L. R. Corp., 114. Mass. 350. Mississippi: McCerrin v. Ala- bama & V. R. Co., 72 Miss. 1013, 18 So. 420. Nebraska: Omaha & R. V. R. 20 LEGAL STATUS. §22 Even when standing still, if the machinery is yet in motion, some automobiles make a whirring, grinding sound, but if one is stopping but briefly, it is not negligence as a matter of law to allow the explosions of the engine to continue.^" But noises may be emitted from an automobile under such circumstances as to render the owner liable.^' Thus, where a railroad engineer blew off steam in order to frighten children, and a child was frightened so that it fell and sustained a broken leg, the company was held liable, the negligence consisting ia the manner and place of blowing off the steam.22 And, as was said in the case of Nason v. West'^* with ref- Co. V. Clarke, 39 Neb. 65, 57 N. W. 545. Tslew York: Nason v. West, 31 N. Y. Misc. 583. 586. 65 N. Y. Supp. 651. North Carolina: Brendle v. Spencer, 125 N. C. 474, 34 S. B. 634; Doster v. Charlotte St. R. Co., 117 N. C. 651, 661, 23 S. E. 449. Wisconsin: Cahoon v. Chicago & N. W. R. Co., 85 Wis. 570, 55 N. W. 900. The mere fact that a horse be- comes frightened at an electric car and the sounding of its gong, and runs away, does not make the car company liable. There must be some misconduct on the part of the company's servant having con- trol of the car. Galesburg Elec- tric & P. Co. V. Manville, 61 111. App. 490, 492. The ordinary use of a railroad engine, and the ordinary sound- ing of the whistle and allowing the steam to escape is not negli- gence. Indianapolis Union R. Co. V. Boettchgr, 131 Ind. 82, 84, 28 N. B. 551. There can be no liability for injury resulting from the ordinary noises of an automobile. Eich- man v. Buchhelt, 128 Wis. 385, 391, 107 N. W. 325. 20 House V. Cramer, 134 la. 374, 377, 112 N. W. 3, 10 L. R. A. (N. S.) 655. 21 Alabama: Stanton v. Louis- ville & N. R. Co., 91 Ala. 382, 386, 8 So. 798. Georgia: Georgia R. Co. v. Thomas, 73 Ga. 350, 355. Illinois: Toledo, W. & W. R. Co. v. Harmon, 47 111. 298, 95 Am. Dec. 489. Indiana: Indianapolis Union R. Co. V. Boettcher. 131 Ind. 82, 28 N. E. 551. Iowa: Andrews v. Mason City & F. D. R. Co., 77 la. 669; Alsever v. Minneapolis & St. L. R. Co., 115 la. 338, 88 N. W. 841. Kansas: Culp v. Atchison & N. R. Co., 17 Kan. 475. Nebraska: Omaha & R. V. R. Co. V. Clark, 39 Neb. 65, 68, 57 N. W. 545. North Carolina: Breudle v. Spencer, 125 N. C. 474, 34 S. B. 634. Pennsylvania: Pennsylvania R, Co. V. Barnett, 59 Pa. St. 259, 265. 22 Alsever v. Minneapolis & St. L. R. Co., 115 la. 338, 88 N. W. 841. 23 31 N. Y. Misc. 583, 586, 65 N. Y. Supp. 651. 21 § 23 LAW OP AUTOMOBILES. erenee to automobiles: "It will not do to say that it is proper to run any kind of a contrivance on the street in which persons may be carried. A machine that would go puffing and snorting through the streets might be a nuisance." But such is not the ordinary and usual conduct of the auto- mobile. What noises are negligent depend upon all the cir- cumstances at the time; noises that would not be negligent if no one were in sight might amount to gross negligence if one were in the act of passing a team of horses on the highway.2* §23. Same— Tendency to fiighten horses. The mere fact that the use of automobiles on the public highways is apt to frighten horses is no reason for adjudging them nuisances.*" Horses would as likely become frightened at the primitive ox team and wagon of the prairie-schooner variety as at auto- mobiles, and certainly no one will deny the right of the oxen and wagon to use the public highways.*^ Bicycles formerly frightened horses, but no liability arose on that account.*'' So, automobiles running at moderate speed and operated in a careful manner, may cause fright to horses unused to them, but the horses must get used to them or the driver take his chances.*^ The operator of an automobile is charged with the knowl- edge that his vehicle may frighten horses, ^^ and the fact that horses are likely to become frightened at the automobile 2* If an engineer, where teams Minnesota: Thompson v. Dodge, are constantly passing unneces- 58 Minn. 555. sarily opens the valves of his New York: Nason v. West, 31 engine and frightens such horses N. Y. Misc. 583, 586, 65 N. Y. Supp. and causes them to run away and 651. commit injury, his employer will 2« Nason v. West, 31 N. Y. Misc. be liable. Omaha & R. V. R. Co. 583, 586, 65 N. Y. Supp. 651. V. Clarke, 39 Neb. 65, 68, 57 N. W. " Holland v. Bartch, 120 Ind. 545. 46; Thompson v. Dodge, 58 Minn. i^ Illinois: Moses v. Pittsburgh ^^5. etc. R. Co., 21 111. 516. "' Towle v. Morse, 103 Me. 250, Maine: Towle v. Morse, 103 Me. ^^ ^^- ^^^^' ^^^""^ ^- ^^^^- ^1 250 68 Atl 1044 ^- ^- ^*^*'- ^^^- ^^^' ^^ N. Y. Supp. 651. Michigan: Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522. 28 House V. Cramer, 134 la. 374, 377, 112 N. W. 3, 10 L. R. A. (N. S.) 655. 22 LEGAL STATUS. §§ 24-25 is a material element in the question of due care on the part of the drivers of both horses and automobiles.*" § 24. Characteristics of the automobile. In itseU the auto- mobile is harmless and characterless. It is only when human agency intervenes that it assumes characteristics peculiarly its own.3i It is capable of being driven at a high rate of speed ;32 it ig heavy, powerful, fast, and generally noisy,** its shape is unusual; it is propelled by a power within itself, and produces a puffing noise when in motion,** and, if care- lessly handled, may become as terrifying as it is dangerous.*^ On account of its great weight and strength, it is capable, in a collision with an ordinary vehicle, of smashing it without serious injury to itself.*^ §25. Same — Judicial notice. Under a statute which pro- vides that courts wiU take judicial notice "of the true sig- nificance of all English words and phrases," it has been held that courts will take judicial notice of an automobile and its characteristics and the consequences of its use. Thus a court may take judicial notice that an automobile makes an unusual noise; that it can be driven at a great velocity — at a speed many times greater than that of ordinary vehicles hauled by animals, and that it is highly dangerous when used on country roads.*^ This does not mean that they should be excluded from the highways, but merely that they are a source of danger to users of ordinary modes of conveyance ;*8 and the courts will take notice of this fact without requiring proof. aoTowle V. Morse, 103 Me. 250, 160; Hall v. Compton, 130 Mo. 68 Atl. 1044; Wright v. Crane, 142 App. 675, 108 S. W. 1122, 1124. Mich. 508, 106 N. W. 71, 12 De- 3* Christy v. Elliott, 216 111. 31, troit Leg. N. 794. 40, 74 N. E. 1035, 1 L. R. A. (N. 31 Lewis V. Amorous, 6a. App. S.) 215, 108 Am. St. Rep. 196. (1907), 59 S. E. 338, 340. as Ex parte Berry, 147 Cal. 523, 32 Ex parte Berry, 147 Cal 523, 524, 82 Pac. 44, 109 Am. St. Rep. 524, 82 Pac. 44, 109 Am. St. Rep. 160; Com. v. Boyd, 188 Mass. 160; Brinkman v. Pacholke, Ind. 79, 74 N. E. 255. App. (1908), 84 N. E. 762, 764; seMcFern v. Gardner, 121 Mo. Com. V. Boyd, 188 Mass. 79, 74 App. 1, 10, 97 S. W. 972. N. B. 255; McFern v. Gardner, 121 "Ex parte Berry, 147 Cal. 523, Mo. App. 1, 10, 97 S. W. 972. 524, 82 Pac. 44, 109 Am. St. Rep. 33 Ex parte Berry, 147 Cal. 523, 160. 524, 82 Pac. 44, 109 Am. St. Rep. as Brazier v. Philadelphia, 15 Pa. 23 §§ 26-28 LAW OF AUTOMOBILES. § 26. Status of the bicycle. The bicycle is a light carriage or vehicle for the conveyance of persons and property. Its position on the public highways is much the same as that of the automobile, and the principles of law applied to it in the cases cited will be found useful when applied to the auto- mobile. § 27. — ^Same — ^Is a vehicle or carriage. That the bicycle is a vehicle or carriage, generally speaking, is sustained by a long line of decisions. Thus under a statute exempting to the head of a family, among other things, "a wagon or other vehicle," a bicycle was held to be such vehicle and exempt.^^ A city ordinance providing that no person shall place or draw any wagon, cart or other vehicle on any sidewalk was held to include a bicycle;*" and a bicycle was held to be "a two- wheeled carriage" within the meaning of an act empowering a turnpike company to collect toll for the passage of car- riages.*! While it has equal rights on the highways with other vehicles, it is subject to the same obligations, and one using it as a mode of conveyance is bound to exercise a reasonable degree of care to avoid interfering with others in the exercise of similar rights.** § 28. Some — HsM not to be a vehicle or carriage. In cer^ Dlst. 14, 16, affirmed 215 Pa. St. Kansas: Swift v. Topeka, 43 297, 64 Atl. 508. Kan. 671, 23 Pac. 1075. 38 Hoberts v. Parker, 117 la. Michigan: Myers v. Hinds, 110 389, 90 N. W. 744, 57 L. R. A. 764. Mich. 300, 68 N. W. 156, 33 L. R. 94 Am. St. Rep. 316. A. 356. *oGagnier v. Fargo, 11 N. D. Missouri: State ex rel. v. Mis- 73, 88 N. W. 1030, 95 Am. St. Rep. souri Pacific R. Co., 71 Mo. App. 705. 385. ^iGeiger v. Perkiomen & R. North Dakota: Gagnier v. Far- Turnpike Road, 167 Pa. St. 582. go, 11 N. D. 73, 88 N. W. 1030, 95 i^Aldiama: Davis v. Petrino- Am. St. Rep. 705. victi, 112 Ala. 654, 21 So. 344, 36 Pennsylvania: Lacy v. Winn, 4 L. R. A. 615. Pa. Dlst. 409, 412; Taylor v. Union Illinois: North Chicago St R. Traction Co.. 184 Pa. St. 465, 40 Co. V. Cossar, 203 111. 608, 68 N. Atl. 159; Com. v. Forrest, 170 Pa. E. 88. St. 40, 32 Atl. 653; Geiger v. Per- Indiana: Holland v. Bartch. 120 kiomen & R. Turnpike Road, 167 Ind. 46 ; Mercer v. Corbin, 117 Ind. Pa. St. 582. 450, 20 N. E. 132, 3 L. R. A. 221. Rhode Island: State v. Collins, Iowa: Roberts v. Parker, 117 16 R. I. 371, 17 Atl. 131, 3 L. R. la. 389, 90 N. W. 744, 57 L. R. A. A. 394. 764, 94 Am. St. Rep. 316. Texas: Laredo Electric & R. Co. 24 LEGAL STATUS. § 28 tain instances it has been held that the bicycle could not be classed as a vehicle or carriage. Thus, where a turnpike company was authorized to charge a certain toll "for every carriage of whatever description, and for whatever purpose, which shall be drawn or impelled, or set or kept in motion by steam or other power or agency than being drawn by any horse or horses, or other beast of draught," it was held that the bicycle was not a carriage liable to toll under such act.*3 A person riding a bicycle is not traveling as an ordinary passenger in a vehicle.** Under a statute providing that highways shall be kept in repair so that the same may be reasonably safe and convenient for travelers, with their horses, teams and carriages at all seasons of the year, it was declared that a bicycle is not a carriage within the meaning of the statute, so as to entitle one injured by being thrown from his bicycle by a defect in the highway to recover for the injury .*5 A bicycle is not included in a statute which exempts from execution to the head of a family, among other things, "one wagon, cart or dray."*® V. Hamilton, 23 Tex. Civ. App. 480, The bicycle is a carriage under 484. 14 and 15 Vict, eh. 92. McGee v. Virginia: Jones v. Williamsburg, McGrath, 30 L. R. Ir. 41; Bncy. 97 Va. 722, 34 S. B. 883, 47 L. R. of the Laws of Eng., vol. 4, p. A. 294. 90. Canada: Reg. v. Justin, 24 Ont. The bicycle is a vehicle or car- 327. riage and its use on the public England: Taylor v. Goodwin, L. highway is lawful. Thompson v. R. 4 Q. B. Div. 228, 27 Weekly Dodge, 58 Minn. 555, 60 N. W. 545. Rep. 489; Ellis v. Nott-Bower, 60 "Bicycle" and "velocipede" are J. P. 760. convertible terms. State ex rel. v. Anderson's Law Diet, tit. "Bi- Missouri Pacific R. Co., 71 Mo. cycle." App. 385, 391; Cent. Diet. Bouvler's Law Diet, tit "Bi- *3 Williams v. Ellis, 1880, 5 Q. cycle." B. Div. 175. Standard Diet., tit. "Bicycle." 44 McMillan v. Sun Life Assur. A bicycle is a vehicle and its Co., 4 Scots L. T. 98. proper place is upon the highway, *^ Richardson v. Danvers, 176 or the street proper, and not upon Mass. 413, 57 N. E. 688, 50 L. R. the sidewalk. Fielder v. Tipton, A. 127, 79 Am. St Rep. 320. Ala. (1906), 42 So. 985, 8 L. R. A. *" ghadewald v. Phillips, 72 (N S ) 1268. Minn. 520, 75 N. W. 717. 25 § 28 LAW OF AUTOMOBILES. For further illustrations see the cases cited in the notes.*'' " A bicycle does not come with- horses, does not include the bi- in the description "sledge, drag, or cycle. Murfln v. Detroit & B. such like carriage," occurring in a Plank Road Co., 113 Mich. 675, 71 statute imposing a toll upon such N. W. 1108, 38 L. R. A. 198, 67 vehicles. Smith v. Kynnersley, 66 Am. St. Rep. 489. J. P. 679. Bicycles are not embraced in A statute giving turnpike com- the class of things denoted by the panics the right to collect toll words "personal or ordinary bag- from persons riding over their gage." State ex rel. v. Missouri roads in vehicles drawn by Pacific R. Co., 71 Mo. App. 385. 26 CHAPTER m. STATE POLICE KEGULiATIONS. S 29. Police power described. 30. Power of the State to regu- late the use of property. 31. Limitation of police power. 32. Power of the State to regu- late the use of automo- bUes. 33. Repeal of law by implication in regulation of automo- biles. 34. Necessity of regulation. 35. Necessity for uniform regu- lation. 36. Regulation of speed. 37. Speed having regard to the traffic on the highway. 38. Construction of penal stat- utes touching automo- biles. 39. Effect of partial invalidity of statute regulating automo- biles. 40. One subject to be expressed in the title. 41. Automobile regulation as class legislation. 42. Exempting automobiles kept in stock — Construction of statute. § 43. Laws applied to automobiles owned by corporations, etc. 44. Stopping on signal and mov- ing forward when neces- sary. 45. Meaning of "steam" as ap- plied to automobiles by statute. 46. Construction of phrase "whenever it shall ap- pear." 47. Meaning of "ride or drive." 48. Meaning of "approaching." 49. Stopping on signal. 50. Distinction between stopping vehicle and stopping mo- tive power. 51. Laws regulating traction en- gines not applicable to au- tomobiles. 52. Registration and display of number — Purpose. 63. Constitutionality of the law. 54. Taking of property. 55. Personal liberty. 56. Meaning of "due process of law" or "law of the land." 57. Privileges and immunities of citizens. §29. Police power describfid. While the tenn "police power" is not capable of exact definition,' it may be said 1 Colorado: In re Morgan, 26 Miss. 378, 407, 34 Am. Rep. 451. Colo. 415, 422, 77 Am. St. Rep. 269. Indiana: Indianapolis v. Con- sumers Gas Trust Co., 140 Ind. 107, 118, 49 Am. St. Rep. 183. New York: People v. King, 110 N. Y. 418, 423, 18 N. B. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. Rhode Island: State v. Dalton, 22 R. I. 77, 80, 46 Atl. 234, 48 L. Mississippi: Macon v. Patty, 57 R. A. 775, 84 Am. St. Rep. 818. 27 §29 LAW OF AUTOMOBILES. to be that power, inherent in the state, whereby it may enact and enforce all laws for the protection, maintenance or ad- vancement of the health, safety, morals, comfort, quiet, con- venience, welfare and prosperity of the people.* Washington: Karasek v. Peier, North Carolina: State v. Wil- 22 Wash. 419, 426, 61 Pac. 33. 50 llama, N. C. (1908), 61 S. B. 61, L. R. A. 345. 63. United States: New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650, 661, 6 Sup. Ct. 252, 29 L. Ed. 516; Beer Co. v. Maseachu- eetts, 97 U. S. 25, 33, 24 L. Ed. Pennsylvania: Radnor Town- ship V. Bell, 27 Pa. Super. Ct 1, 6; Com. T. Vrooman, 164 Pa. St. 306, 44 Am. St. Rep. 603. Rhode Island: Harrington v. 989; Slaughter-House Cases, 83 U. Board of Aldermen, 20 R. I. 233, S. (16 Wall.) 36, 62, 21 L. Ed. 394. 237. 2 Arkansas: McLean v. State, 81 Vermont : Thorpe v. Rutland & Ark. 304, 98 S. W. 729. B. R. Co., 27 Vt. 140, 149. California: PlumaB Co. v. Virginia: Young v. Com., 101 Wheeler. 149 Cal. 758, 762, 87 Pac. Va. 853, 863, 45 S. E. 327. 909. Washington: State v. Walker, Idaho: Walker v. Bacon. 11 Wash. (1907), 92 Pac. 775. Idaho 127, 81 Pac. 155. affirmed United States: Reynolds v. 204 U. S. 311, 27 Sup. Ct. 289, 51 United State, 98 U. S. 145; Lawton L. Ed. 499. V. Steele, 152 U. S. 133, 14 Sup. Ct. Illinois: Belleville v. Turnpike 499; Chicago, B. & Q. R. Co. v. Co., 234 111. 428, 437, 84 N. B. 1049. People, 200 U. S. 561, 592, 26 Sup. Indiana: Cincinnati, I. & W. R. Ct. 341, 50 L. Ed. 596. Co. V. ConnersviUe, Ind. (1908), 83 McQuillin, Mun. Ord., sec. 429. N. E. 503. Freund, Pol. Pow., sec. 2, et seq. Iowa: Brady v. Mattern, 125 la. The police power is not limited 158, 162, 100 N. W. 358. to regulations to promote the pub- Kansas: MefEert v. Medical He health, morals, or safety, but Board, 66 Kan. 710, 72 Pac. 247, 1 may be extended to such regula- L. R. A. (N. S.) 811. tions as will promote the public Kentucky: Sanders v. Com., 117 convenience and general prosper- Ky. 1, 77 S. W. 358. 1 L. R. A. Ity. Willams v. State, Ark (1908), (N. S.) 932. 108 S. W. 838. Missouri: St. Louis v. Grafeman The state inherently possesses Dairy Co., 190 Mo. 492, 503, 89 such power of restraint upon prl- S. W. 617, 1 L. R. A. (N. S.) 936; vate rights as may be found ne- State V. Whltaker, 160 Mo. 59, 60 cessary and appropriate to pro- S. W. 1068. mote the health, comfort, safety, Nevada: Ex parte Boyce, 27 Nev. and welfare of society. Christy v. 299, 75 Pac. 1. Elliott, 216 111. 31, 40, 74 N. B. New Jersey: Hopper v. Stack, 69 1035, 1 L. R. A. (N. S.) 215, 108 N. J. L. 562, 56 Atl. 1. New York: People v. King, 110 N. Y. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. Am. St. Rep. 196. "All laws for the protection of the lives, limbs, health, and quiet of persons, and the security of all 28 STATE POLICE REGULATIONS. § 30 Blackstone says that the police power consists of "The due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. ' '^ Upon this power depends the existence and security of social order, the life and health of the citizens, the beneficial use of property; in fact, it forms the very foundation of our social system.* It is founded on the legal maxim that "every man should so use his own property as not to injure that of another,"^ and upon the right and duty of the state to pro- tect its citizens and provide for the safety and good order of society.^ It is so necessary to the security of the state and the wel- fare of its citizens that the state cannot, by contract or other- wise, divest itself of such power; nor can a municipal corpo- ration to which the power has been delegated by the state.''' §30. Power of the state to regulate the use of property. Under the police power of the state the Legislature may enact all manner of wholesome and reasonable laws, not repugnant to the constitution, which it may deem for the good and wel- property within the state, fall ^ Colorado: White v. Farmers within this general power of the Highline Canal Co., 22 Colo. 191, government." State v. Noyes, 47 200. Me. 189, 212. Kentucky: Com. v. Douglass, 100 3 4 Bl. Com. 162. Ky. 116, 126, 66 Am. St. Rep. 328. 4 Radnor Township v. Bell, 27 Minnesota: State ex rel. v. St. Pa. Super. Ct. 1, 6; Philadelphia Paul, M. & M. R. Co., 98 Minn. V. Brabender, 17 Pa. Super Ct. 331, 380, 403, 108 N. W. 261. 201 Pa. St. 574; Wilkes-Barre v. Missouri: Westport v. Mulhol- Garahed, 11 Pa. Super. Ct. 355. land, 159 Mo. 86, 95, 60 S. W. 77, 5 Com. V. Bearse, 132 Mass. 542, 53 L. R. A. 442; State ex rel. v. 546, 42 Am. St. Rep. 450; State Laclede Gas Light Co., 102 Mo. V. Yopp, 97 N. C. 477, 478, 2 Am. 472, 486, 22 Am. St. Rep. 789. St. Rep. 305; Harasek v. Peier, 22 Wisconsin: Chicago, M. & St. P. Wash. 419, 426, 61 Pac. 33, 50 L. R. Co. v. Milwaukee, 97 Wis. 418, R. A. 345. 422. 6 Deems v. Mayor of Baltimore, United States: Powell v. Penn- 80 Ind. 164, 173, 45 Am. St. Rep. sylvania, 127 U. S. 678, 683; Stone 339; State v. Lee, 137 Mo. 143, v. Mississippi, 101 U. S. 814, 820. 146. 29 §30 LAW OF AUTOMOBILES. fare of the people.* The state may pass laws regulating the conduct of business, professions, trades and pleasures,* and if a particular business is essentially injurious to the public it may be entirely prohibited. ^o The power to regulate invests the Legislature with a large discretion to determine what measures are necessary to pre- serve the public interests and protect private rights.^ ^ The word "regulate," when used in this respect, means to govern, direct or control by rule or restriction; to subject to governing priuciples of law.^^ j^ jg synonymous with s Arkansas : Williams v. State, Ark. (1908), 108 S. W. 838. Illinois: Lake View v. Rose Hill Gem. Co., 70 111. 191, 194, 22 Am. Rep. 71. Indiana: Hockett v. State, 105 Ind. 250, 255, 55 Am. Rep. 201. New York: People v. King, 110 N. Y. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. Rhode Island: Harrington v. Board of Aldermen, 20 R. I. 233, 237. Wisconsin: State ex rel. v. Gary, 126 Wis. 135, 141, 105 N. W. 792. » California: Sierra Co. v. Flan- igan, 149 Gal. 769, 87 Pao. 913. Idaho: Mullen & Co. v. Moseley, 13 Idaho 457, 90 Pac. 986. Illinois: Chicago, B. & Q. R. Co. V. People, 212 111. 103, 72 N. E. 219, affirmed 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. Ed. 596. Missouri: State v. Whitaker, 160 Mo. 59, 60 S. W. 1068. Nevada: Ex parte Boyce, 27 Nev. 299, 75 Pac. 1. New York: People v. Formosa, 131 N. Y. 478, 482, 30 N. E. 492, 27 Am. St. Rep. 612, affirming 61 Hun. 272, 16 N. Y. Supp. 753; Ber- tholf V. O'Reilly, 74 N. Y. 509, 521. North Carolina: State v. Wil- liams, N. G. (1908), 61 S. E. 61, 63. Pennsylvania: McCann v. Com., 198 Pa. St. 509, 511, 48 Atl. 470. " Washington: State v. Walker, Wash. (1907), 92 Pac. 775. Wisconsin: State ex rel. v. Gary, 126 Wis. 135, 139, 105 N. W. 792. United States: Gundllng v. Chi- cago, 177 IT. S. 183, 188; Crowley V. Christensen, 137 U. S. 86, 11 Sup. Gt. 13, 34 L. Ed. 620. 10 Brady v. Mattern, 125 la. 158, 162, 100 N. W. 358. 11 Harrington v. Board of Alder- men, 20 R. I. 233, 237; Lawton v. Steele, 152 U. S. 133, 14 Sup. Gt. 499; State ex rel. v. Gary, 126 Wis. 135, 141, 105 N. W. 792. 12 Alabama: Miller v. Jones, 80 Ala. 89, 96. Illinois: Chicago Dock & Ganal Go. V. Garrity, 115 III. 155. 163, 3 N. E. 448. Indiana: Fisher v. Brower, 159 Ind. 139, 148, 64 N. E. 614; Duck- wall V. New Albany, 25 Ind. 283. Kansas: Higgins v. Mitchell Co., 6 Kan. App. 314, 316, 51 Pac. 72. Nebraska: State v. Ream, 16 Neb. 681, 683, 21 N. W. 398. New York: Rochester v. West, 29 N. Y. App. Div. 125, 130. 51 N. Y. Supp. 482. The power to regulate the use, means the power to fix the terms upon which it may be used. Hill 30 STATE POLICE REGULATIONS. §30 "govern. "13 If the public interests or public welfare ciearly require that the use of certain property be regulated, the state may lawfully restrict and control its use.^* And this power extends to the enactment of laws, not only for the protection of the public health, safety and morals, but for the public convenience and expediency as well.i^ Thus, railroad com- panies may be compelled to construct switches and sidetracks where their roads cross or meet, for the convenience of the V. St. Louis, 159 Mo. 159. 171, 60 New York: People v. Formosa, S. W. 116. 131 N. Y. 478, 482, 30 N. B. 492, 27 The word implies the lawfulness Am. St. Rep. 612, afSrming 61 of the thing regulated. Anderson Hun. 272, 16 N. Y. Supp. 753. V. Wellington, 40 Kan. 173, 19 Pac. Pennsylvania: McCann v. Com., 719, 2 L. R. A. 110, 10 Am. St 198 Pa. St. 509, 511, 48 Atl. 470. Rep. 175. Rhode Island: Harrington v. The word "regulate" implies the Board of Aldermen, 20 R. I. 233, continued existence of the subject 237. matter to be regulated. State y. United States: Gundling v. Chi- Clark, 54 Mo. 17; State v. McCann, cago, 177 U. S. 183, 188. 72 Tenn. 1, 13. ^^ Arkansas: Williams v. State, The power to regulate commerce Ark. (1908), 108 S. W. 838; Mc- means the power to prescribe Lean v. State, 81 Ark. 304, 98 rules by which commerce is to be W. 729. governed. Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 196. Florida: State ex rel. v. Jackson- ville Terminal R. Co., 41 Fla. 377 13 Fisher v. Brower, 159 Ind. 27 So. 225. 139, 148, 64 N. E. 614; Otto Gas Idaho: Walker v. Bacon, 11 Ida- Engine Works V. Hare, 64 Kan. ho 127, 81 Pac. 155, affirmed 204 78, 67 Pac. 444. U. S. 311, 27 Sup. Ct. 289, 51 L, 1* California: Ex parte Loren- Ed. 499. zen, 128 Cal. 431, 437, 61 Pac. 68, Illinois: Chicago, B. & Q. R. Co, 50 L. R. A. 55, 79 Am. St. Rep. 47. v. People, 212 111. 103, 72 N. B Illinois: Burdick v. People, 149 219, affirmed 200 U. S. 561, 592, 26 111. 600, 41 Am. St. Rep. 329. Sup. Ct. 341, 50 L. Ed. 596. Kansas: Blaker v. Hood, 53 Kan. Indiana: Hockett v. State, 105 499, 507, 36 Pac. 1115, 24 L. R. A. Ind. 250, 255, 55 Am. Rep. 201 854. Maine: Preston v. Drew, 33 Me. 558, 560, 54 Am. Dec. 639. Massachusetts: Com. v. Gilbert, 160 Mass. 157, 160, 35 N. E. 454. Missouri: St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 504, 89 S. Co. v. Pennsylvania, 114 U. S. 196, W. 617, 1 L. R. A. (N. S.) 936. 206; Lake Shore & M. S. R. Co. v. New Hampshire: State v. Rob- Ohio, 173 U. S. 285, 292. arts, N. H. (1908), 69 Atl. 722 31 Minnesota: Jacohson v. Wiscon- sin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389. Missouri: State v. Wabash, St. L. & P. R. Co., 83 Mo. 144. United States: Glouster Ferry §31 LAW OF AUTOMOBILES. public ;^s a ferry company may be compelled to land its boats at certain intervals ;^'^ and a railroad company to operate its entire road.i* The fact that a business or trade is lawful does not exempt it from reasonable regulation/^ nor does the right to exer- cise the power of regulation depend upon the morality of the action or conduct to be regulated. ^^ § 31. Limitatioii of police power. By virtue of the consti- tution of our government the police power is limited by the organic law of the state and nation.^^ Therefore, to justify the state in interposing its authority in behalf of the public, it must appear that the interests of the public generally, as distinguished from a particular class, require such iaterfer- ence, and that the means are reasonably necessary for the accomplishment of the desired purpose, and not unduly op- pressive upon individuals.22 Thus, the Legislature cannot, under the guise of protecting public interests, impose unusual and unnecessary restrictions upon individual liberty, lawful occupation, or the use of property, ^^ nor overthrow vested 18 Atlantic, S. R. & G. R. Co. v. Pennsylvania: Com. v. Vrooman, State, 42 Fla. 358, 29 So. 319, 89 Am. St. Rep. 233. 17 Madison v. Abbott, 118 Ind. 337, 21 N. B. 28. 18 People v. Louisville & N. R. Co., 120 111. 48; Brownell v. Old 164 Pa. St. 306, 44 Am. St. Rep. 603. Wisconsin: State ex rel. v. Chit- tenden, 127 Wis. 468, 519, 107 N. W. 500. United States: Lake Shore & M. Colony R. Co., 164 Mass. 29, 41 N. S. R. Co. v. Smith, 173 V. S. 684, E. 107, 29 L. R. A. 169, 49 Am. St. 689. Rep. 442. 22Lawton v. Steele, 152 U. S. 19 St. Louis v. Grafeman Dairy 133, 137. Co., 190 Mo. 492, 504, 89 S. W. 617, ^iAlaiama: Joseph v. Randolph, 1 L. R. A. (N. S.) 936; Gundling 71 Ala. 499, 507. V. Chicago, 177 U. S. 183, 188; Illinois: Bailey v. People, 190 Hopper V. Stack, 69 N. J. L. 562, 111. 28, 38, 60 N. E. 98; Ritchie v. 56 Atl. 1. People, 155 111. 110, 40 N. B. 20 Ex parte Meyers, Cal. App. 454, 29 L. R. A. 79, 46 Am. St. (1908), 94 Pac. 870. 21 Missouri: State v. Layton, 160 Mo. 474, 488. New York: Colon v. Lisk, 153 N. Rep. 315. Indiana: State v. Richcreek, 167 Ind. 217, 230, 77 N. E. 1085. New York: People v. Gilson, 109 Y. 188, 60 Am. St. Rep. 609; In re N. Y. 389, 398, 17 N. B. 343. 4 Am. Jacobs, 98 N. Y. 98, 108. North Carolina: State v. Moore, 113 N. C. 697, 702. St. Rep. 465; People v. Zimmer- man, 102 N. Y. App. Div. 103, 92 N. Y. Supp. 497. 32 STATE POLICE REGULATIONS. §32 rights.2* Its power is limited by the organic laws, and to enactments relating to tlie interests or welfare of the public,^^ and, hence, the state will not be allowed to encroach or tram- ple upon any of the just rights of the citizen, which the con- stitution intended to secure against diminution or abridg- ment, ^s Thus, property rights will not be permitted to be invaded under the guise of a police regulation for the preser- vation of health when such is clearly not the object and purpose of the regulation.^'' §32. Power of state to regxdate the use of automobiles. Under the police power, within the limitations outlined, it has long been recognized that the state may regulate travel on the public highways,^* which embraces the power to regu- late the use of automobiles thereon.^^ Virginia: Young v. Com., 101 Va. 853, 863, 45 S. E. 327. Wisconsin: State ex rel. v. Gary, 126 Wis. 135, 141, 105 N. W. 792. United States: New Orleans Gas Co. V. Louisiana Light Co., 115 TJ. S. 650; Ex parte Drayton, 153 Fed. 986, 989. 2* State ex rel. v. Laclede Gas Light Co., 102 Mo. 472, 486, 22 Am. St. Rep. 789. 25 Arkansas: Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206. New York: People v. Ringe, 125 N. Y. App. Div. 592, 110 N. Y. Supp. 74; People v. Beattie, 96 N. Y. App. Div. 383, 385, 89 N. Y. Supp. 193. Pennsylvania: Godcharles v. Wigeman, 113 Pa. St. 431, 437. Washington: In re Aubrey, 36 Wash. 308, 78 Pac. 900. United States: Lochner v. New York, 198 U. S. 45, 63, 25 Sup. Ct. 539, 49 L. Ed. 937. 26 'Vv atertown v. Mayo, 109 Mass. 315, 319; State v. Julow, 129 Mo. 163, 177; In re Jacobs, 98 N. Y. 98, 108; Slaughter-House Cases, 83 V. S. (16 Wall.) 36, 87, 21 L. Ed. 394. 27 Bailey v. People, 190 111. 28, 38, 60 N. E. 98; Ritchie v. People, 155 111. 98, 110, 40 N. B. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315. "A police regulation must not extend beyond that reasonable in- terference which tends to preserve and promote enjoyment, generally, of those inalienable rights with which all men are endowed, and to secure which governments are instituted among men." Bonnett V. Valuer, Wis. (1908), 116 N. W. 885, 888. 28 Twilley v. Perkins, 77 Md. 252, 19 L. R. A. 632; State v. Yopp, 97 N. C. 477, 2 Am. St. Rep. 305; Jones V. Brim, 165 U. S. 180, 182; Henry v. Roberts, 50 Fed. 902, 904. 29 Illinois: Christy v. Elliott, 216 111. 31, 42, 74 N. B. 1035, 1 L. R, A. (N. S.) 215, 108 Am. St. Rep. 196. Maryland: Fletcher v. Dixon, Md. App. (1908), 68 Atl. 875, 878. Massachusetts: Com. v. Boyd, 188 Mass. 79, 74 N. E. 255; Com. V. Stodder, 2 Cush. 562, 570. Missouri: State v. Swagerty, 203 Mo. 517, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. St. Rep. 671; 33 § 32 LAW OF AUTOMOBILES. The general rule is thus tersely expressed in a late Mary- land ease: "The owner of an automobile has the right to use the public highway, yet, inasmuch as such use may be productive of injury to others, unless carefully run and man- aged, the Legislature has the undoubted right to regulate the speed and provide other reasonable regulations as to its use. "30 And in a leading Massachusetts case the Court observed: "There can be no question of the right of the Legislature, in the exercise of the police power, to regulate the driving of automobiles on the public ways."^' "Automobiles are vehicles of great speed and power, whose appearance is frightful to most horses that are unaccustomed to them. The use of them introduces a new element of danger to ordinary travelers on the highways, as well as to those riding in the automobiles. In order to protect the public great care should be exercised in the use of them. Statutory regulation of their speed while running on the highways is reasonable and proper for the promotion of the safety of the public. "32 Thus statutes have been adjudged valid police regulations which require automobiles to be equipped with suitable brakes, a horn or other device for sounding alarm, with lights at night, and that reasonable precaution be taken when the ma- chine is left unattended in the highway to prevent its being started by meddlesome persons, notwithstanding such restric- tions may invade the right of liberty or property of the individual.^* It has been decided that the regulation of the use of auto- mobiles on the public highways, even to their exclusion from particular roads, is a proper exercise of the police power for the safety of the public.** Hall V. Compton, 130 Mo. App. 675, sa Christy v. Elliott, 216 111. 31, 108 S. W. 1122. 40, 74 N. E. 1035, 1 L. R. A. (N. Pennsylvania: Radnor Town- S.) 215, 108 Am. St. Rep. 196; ship V. Bell, 27 Pa. Super. Ct. 1. Bailey v. People, 190 111. 28, 60 N. 30 Fletcher v. Dixon, Md. App. E. 98; Ruhstrat v. People, 185 111. (1908), 68 Atl. 875, 878. 133. 31 Com. V. Boyd, 188 Mass. 79, 34 Com. v. Kingsbury, Mass. 74 N. E. 255. (1908), 85 N. E. 848. 82 Com. V. Kingsbury, Mass. (1908), 85 N. E. 848. 34 STATE POLICE REGULATIONS. § 33 §33. Repeal of law by imiplication in regulation of auto- mobiles. While the repeal of a law by implication is not favored, 35 it is well settled that where a later act covers the whole subject of earlier acts, and embraces new provisions, and plainly shows that it was intended to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it will operate as a repeal of all former statutes relating to such subject matter, even if such former acts are not in all respects repugnant to the new act.3® Thus, where a municipal charter conferred the power to impose a tax on the owners of motor vehicles for the privilege of using the public highways, a subsequent state law forbidding local authorities from requiring by ordinance any permit or license of owners or operators of a motor vehicle for the privilege of using the public ways or from excluding any motor vehicle whose owner has complied with the state act from the use of such highways, repeals by implication the charter provision on the same subject ; and hence an ordinance imposing an annual tax on owners of motor vehicles was con- strued to be an ordinance requiring a license or permit, and 35 Arkansas: Benton v. Willis, Wis. 1, 18, 105 N. W. 654, 3 L. R. 76 Ark. 443, 446, 88 S. W. 1000. A. (N. S.) 84. Illinois: Schafer v. Gerbers, 234 "The law does not recognize re- 111. 468, 84 N. E. 1064, 1066. peals by implication, unless the Indiana: Findllng v. Foster, Ind. new legislation is inconsistent (1908), 84 N. E. 529. with the old." Johnson v. Shea, Minnesota: Clark v. Baxter, 98 Mass. (1908), 84 N. E. 606. Minn. 256, 258, 108 N. W. 838. 3& Alabama: Prowell v. State, 142 Missouri: State ex rel. v. Wil- Ala. 80, 87, 39 So. 164. der, 197 Mo. 27, 35, 94 S. W. 499. Indiana: Thomas v. Butler, 139 :Mew York: People ex rel. v. Ind. 245, 248, 38 N. E. 808; Had- Metz, 119 N. Y. App. Dlv. 271, 276, ley v. Musselman, 104 Ind. 459, 104 N. Y. Supp. 649. 461, 3 N. E. 122. J Davis v. Maxwell, 108 N. Y. Maryland: Fletcher v. Dixon, App. Div. 128, 131, 96 N. Y. Supp. Md. App. (1908), 68 Atl. 875, 877. 45. J/'ew Yorlc: Davis v. Maxwell, 46 STATE POLICE REGULATIONS. §§ 51-53 the vehicle itself. "Whether it is the duty of such driver to stop the motive power of his automobile depends upon the circumstances of each case.®^ Some of the statutes require the operator, under certain con- ditions, to stop the vehicle, then under certain other conditions to stop the running of the engine or motive power. § 51. Laws regulating taraction engines not applicable to automobiles. Some of the states have statutes regulating the running of traction engines on the public highways. The terms of these statutes are applicable to slow-moving vehicles, and not to the modern rapid automobile. Thus a statute prohibited the use in the public streets, ex- cept on railroad tracks, of any vehicle propelled by steam unless a person be sent at least one-eighth of a mile in advance to warn travelers of its approach. It was held that this statute, though broad enough to include automobiles, was passed be- fore such vehicles were in use, and was directed against trac- tion engines, which are slow, ponderous and noisy. The pro- vision of the statute that a forerunner must precede the vehicle to warn persons of its approach clearly indicates that the law was not passed with automobiles in mind.^^ § 52. Eegistration and display of number — Purpose. The statutory requirement that automobiles be registered with some state official, and a number corresponding to the number of the certificate of registration be displayed on the auto- mobile, is for the purpose of identifying the automobile, and consequently the owner, in case of accident or a violation of the law. It provides a way of enforcing the law regulating the speed of automobiles, and for holding the operators re- sponsible for their acts. It has a deterring effect upon opera- tors who would violate the law and the rights of others.^^ § 53. Same — Constitutionality of the law. The law requir- ing the registration of automobiles and the display of the reg- istered number is a valid police regulation. It does not violate the fourteenth amendment of the United States constitution.^* The fourteenth amendment, comprehensive as it is, was not 91 Mahoney v. Maxfield, 102 Y. App. Div. 176, 179 ; Com. v. Minn. 377, 113 N. W. 904. Densmore, 29 Pa. Co. Ct. 217, 218. 92 Nason v. West, 31 N. Y. Misc. 94 Unwen v. State, 73 N. J. L. 583, 587, 65 N. Y. Supp. 651. 529, 64 Atl. 163, 68 Atl. 110. 93 People V. MacWilliams, 91 N. 47 §54 LAW OF AUTOMOBILES. designed to interfere with the exercise by the state of its police power for the protection of the people.®® § 54. Same — Same — ^Takingf of property. It is not neces- sary that there be an actual taking of the property itself to constitute a deprivation of property within the meaning of the fourteenth amendment to the Federal constitution. Anything that affects or limits the free use and enjoyment of one's prop- erty, or of the easements or appurtenances thereto, amounts to such a deprivation or taking of property. ^ It has been contended that to require owners of automobiles to register them with a state officer, and display the registered number on their machines and pay a registration fee, amounts to a taking of property without due process of law. But such a contention is clearly erroneous.^ AU property is held subject to the power of the state to ^5 Kansas: Meffert v. Medical Board, 66 Kan. 710, 718, 72 Pac. 247, 1 L. R. A. (N. S.) 811. Missouri: St. Louis v. Fischer, 107 Mo. 654, 664, 67 S. W. 872, af- firmed 194 U. S. 361. 'Nebraska: Halter v. State, 74 Neb. 757, 105 N. W. 298. New Jersey: TJnwen v. State, 73 N. J. L. 529, 64 Atl. 163, 68 Atl. 110. New York: People v. King, 110 N. Y. 418, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. Ohio: Cincinnati v. Steinkamp, 54 Ohio St 284, 291, 43 N. E. 490. Pennsylvania: Wilkes-Barre v. Garahed, 11 Pa. Super. Ct. 355, 358. United States: Powell v. Penn- sylvania, 127 U. S. 678, 683; Tick Wo V. Hopkins, 118 XJ. S. 356, 367. 1 Connecticut : Hooker v. New Haven & N. R. Co., 14 Conn. 146. Illinois: Belleville v. Turn- pike Co., 234 111. 428, 434, 84 N. E. 1049; Ritchie v. People, 155 111. 98, 104, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315. Indiana: First National Bank v. Sarlls, 129 Ind. 201, 210, 28 N. E. 434, 13 L. R. A. 481, 28 Am. St. Rep. 185. Minnesota: Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644. New Jersey: Bloom v. Koch, 63 N. J. Bq. 10, 20, 50 Atl. 621; Sin- nickson v. Johnson, 17 N. J. L. (2 Harr.) 129. New York: People v. Otis, 90 N. Y. 48, 52; Myer v. Adams, 63 N. Y. App. Div. 540, 544, 71 N. Y. Supp. 707, 710. United States : Pumpelly v. Green Bay Co., 80 U. S. (13 Wall.) 166, 179. Depriving an owner of property of one of its essential attributes is depriving him of his property within the meaning of the consti- tution. State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443. 2 Unwen v. State, 73 N. J. L. 529, 64 Atl. 163, 68 Atl. 110. 48 STATE POLICE REGULATIONS. §55 regulate or control its use to secure the general safety and welfare of the public, and the automobile is no exception to the rule.* § 55. Siaaue — Same — Personal liberty. Laws regulating the use of automobiles on the public highways have been declared constitutional as against the contention that they deprive the operator of an automobile of his liberty without due process of law.* "Personal liberty," as used in the fourteenth amendment to the Federal constitution, means the right of the citizen to be free from physical restraint; to be free in the employment of aU his faculties; to live and work where he will; to be free to acquire property, and use it ia any lawful manner, and to earn his livelihood by any lawful calling.^ Laws which interfere with the personal liberty of the citi- zen cannot be constitutionally enacted, unless the interests or welfare of the public clearly require them.^ But liberty is not an unrestricted license to act according to one's own will.^ Every man surrenders a part of his natural liberty, that is, his right to follow the inclinations of an ungoverned will, in re- 3BerthoIf v. O'Reilly, 74 N. Y. 509, 521; Com. t. Alger, 7 Cush. (Mass.) 53. * Unwen v. State, 73 N. J. L. 529, 64 Atl. 163, 68 Atl. 110. 6 Arkansas : Helena v. Dwyer, 64 Ark. 424, 426, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206. Colorado: In re Morgan, 26 Colo. 415, 420, 77 Am. St. Rep. 269. Illinois: Ritchie v. People, 155 111. 98, 104, 40 N. B. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315. Indiana: Townsend v. State, 147 Ind. 624, 627, 47 N. B. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477. Michigan: Pinkerton v. Verberg, 78 Mich. 573, 584. Missouri: Ex parte Smith, 135 Mo. 223, 226, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576; St. Louis V. Roche, 128 Mo. 541, 547, 31 S. W. 915. Nelyraska: Low v. Rees Printing 4 Co., 41 Neb. 127, 59 N. "W. 362, 24 L. R. A. 702, 43 Am. St. Rep. 670. New York: People v. Warden of Prison, 157 N. Y. 116, 126, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763. United States: Booth v. Illinois, 184 U. S. 425, 428, 22 Sup. Ct. 425, 46 L. Ed. 623; Butchers Union Co. V. Crescent City Co., Ill U. S. 746. 1 Bl. Com. 134. "Civil liberty is natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general ad- vantage of the public." 1 Bl. Com. 125. s Chicago V. Banker, 112 111. App. 94, 99; Bassette v. People, 193 111. 334, 344, 62 N. B. 215. ■? Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13, 34 L. Ed. 620. 49 § 56 LAW OF AUTOMOBILES. turn for the advantages and protection which society affords him.* And the phrase, "without due process of law," as it appears in the constitution, constitutes a qualification which implies that the right of personal liberty may be restricted or entirely taken away.^ In a word, whenever the public interests or welfare so re- quire, the inferior rights of the individual must give way.^" §56. Same — Some— Meaning of "due process of law" or "law of the land." "Due process of law" and "the law of the land," as used in the constitution relative to the rights of lib- erty and property, are interchangeable phrases. ^^ They mean a law which transgresses no constitutional right ; which is in accord with American institutions, and the policies of a republican form of government, and which grants to every man his day in court. Daniel Webster, in the famous Dartmouth College case, de- fined the law of the land to be, "The general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. "^^ "The principle that no man shall be deprived of his life, lib- erty or property except by the 'law of the land,' or its synonym, 'due process of law,' is older than written eonstitu- 8 1 Bl. Com. 125. Ark. 161, 175, 87 Am. Dec. 52. »Berthol£ v. O'Reilly, 74 N. Y. Illinois: Harding v. People, 160 509, 519, 521; Com. v. Alger, 7 111. 459, 464, 43 N. B. 624, 32 L. R. Cush. (Mass.) 53. A. 445, 52 Am. St. Rep. 344. 10 California: Ex parte Lorenzen, Missouri: Hulett v. Missouri, K. 128 Cal. 431, 437, 61 Pac. 68, 50 L. & T. R. Co., 145 Mo. 35. R. A. 55, 79 Am. St. Rep. 47. New York: People v. Board of Kansas: Blaker v. Hood, 53 Kan. Supervisors, 70 N. Y. 228, 234. 499, 507, 36 Pac. 1115, 24 L. R. A. Ohio: Adler v. Whitbeck, 44 854. Ohio St. 539, 569, 9 N. E. 672. Massachusetts: Com. v. Gilbert, United States: Missouri Pacific 160 Mass. 157, 160, 35 N. B. 454. R. Co. v. Humes, 115 U. S. 512, 519, Missouri: St. Louis v. Grafeman 6 Sup. Ct. 110, 29 L. Ed. 463. Dairy Co., 190 Mo. 492, 504, 89 S. 12 Dartmouth College v. Wood- W. 617, 1 L. R. A. (N. S.) 936. ward, 17 U. S. (4 Wheat.) 518, 581. New York: People v. Formosa, 4 L. Ed. 629. 131 N. Y. 478, 482, 30 N. E. 492, 27 For other definitions see, Hard- Am. St. Rep. 612, affirming 61 Hun. ing v. People, 160 111. 459, 464, 43 272, 16 N. Y. Supp. 753. N. E. 624, 32 L. R. A. 445, 52 Am. Pennsylvania: McCann v. Com., St. Rep. 344; Millett v. People, 117 198 Pa. St. 509, 511, 48 Atl. 470. 111. 294, 301; Ames v. Port Huron 11 Arkansas: Risen v. Farr, 24 L. D. & B. Co., 11 Mich. 139, 148; 50 STATE POLICE REGULATIONS. § 57 tions, and breathes so palpably the spirit of exact justice that it needs no formulation in the organic law."^* §57. Same — Same — Privileges and immunities ef dtizens. That part of the United States constitution^* which provides that ' ' the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states," merely re- quires that the laws of a state shall be equally applicable to residents and nonresidents.^^ Thus, the defendant, a citizen of the state of New York, in which state he had registered his automobile and was displaying the registered number on his machine, was convicted in New Jersey for violating the law of .that state requiring owners of automobiles to register them with the Secretary of State and to display the registered num- ber on the automobile. He contended that the law denied him the privileges and immunities of citizens of the state. But the court held that, as the law applies to all who drive auto- mobiles in the state, whether resident or nonresident, the con- tention was erroneous. ^^ Stratton t. Morris, 89 Tenn. 497, 499; Williams v. Fears, 110 Ga. 521, 15 S. W. 87, 12 L. R. A. 70; 584, 593, 35 S. E. 699, 50 L. R. A. Janes v. Reynolds, 2 Tex. 250. 685; State v. North, 27 Mo. 464; 13 Quimby v. Hazen, 54 Vt. 132, Ward v. Maryland, 79 U. S. (12 139. WaU.) 418. 1* Art. 4, § 2. 16 Unwen v. State, 73 N. J. L. 15 Joseph y. Randolph, 71 Ala. 529, 64 Atl. 163, 68 Atl. 110. 51 CHAPTER IV. MUNICIPAL OR LOCAL POLICE REGULATIONS. § 58. Police power of municipal corporations. 59. Same; to regulate the use of streets. 60. Same; to regulate the speed of automobiles. 61. Regulation of automobile as a public vehicle. 62. Registration of automobiles and display of number. 63. Construction of charter pow- ers. 64. Police ordinances. 65. Construction of ordinances. 66. Construction of ordinances passed under express power. 67. Construction of ordinances not passed under express power. § 68. Construction of penal ordi- nances. 69. Discrimination; class legisla- tion. 70. Distinction between regulate and prohibit. 71. Scope of phrase "Transport- ing persons or property." 72. Title of ordinances. 73. Ordinance void in part. 74. Conflict of ordinance with state law. 75. Same act may be an offense against state law and mu- nicipal ordinance. 76. Reward for evidence of vio- lations of speed law. § 58. Police power of mimicipal corporations. A municipal corporation may exercise, first, all powers granted in express terms, consistent with the Federal constitution and laws, and the state constitution; second, certain implied or incidental powers, in harmony with the Federal and state constitutions and laws, and the municipal charter, (a) growing out of those expressly granted, or (b) those which belong to it because it is a municipal corporation, or (c) those which are essential or reasonably proper, to give effect to powers expressly granted or recognized as pertaining to municipal existence.^ iMcQuillin, Mun. Ord., §46; 1 Dillon, Mun. Corp. (4th ed.), §89. Alabama: Cleveland School Fur- niture Co. V. Greenville, — Ala. — (1906), 41 So. 862. Alaska: Ketchikan Co. v. Citi- zens Co., 2 Alaska 120, 129. District of Columbia: United States ex rel. v. MacFarland, 28 App. Cas. (D. C.) 552, 558. Iowa: Burroughs v. Cherokee, 134 la. 429, 431. 109 N. W. 876. Missouri: St. Louis v. Kaime, 180 Mo. 309, 322, 79 S. W. 140; State V. Butler, 178 Mo. 272, 313, 77 S. W. 560. 52 LOCAL. POLICE REGULATIONS. §59 It thus appears that a munieipal corporation is not limited to the exercise of express powers,^ but may pass all laws neces- sary or proper to carry into effect a given power.* And it is the duty of munieipal corporations to exercise their express powers for the public good ; the exercise of such powers is not discretionary, but imperative;* and they cannot be delegated or bartered away." The powers of a municipal corporation necessarily depend upon its charter or acts of the legislature applicable thereto. Under the general grant of power, commonly called the "gen- eral welfare" clause, "to ordain and publish such acts, laws and regulations, not inconsistent with the constitution and laws of the state, as shall be needful to the good order of the city," the local corporation may enact and enforce all reason- able ordinances for the administration of the municipal govern- ment, and for the protection of the interests and welfare of its inhabitants.^ § 59. Same — To regulate the use of streets. The use of the public highways is a right inherent in the people and a muni- cipal ordinance restricting this right is void. But the legis- New Jersey: Carron v. Martin, 26 N. J. L. 594, 69 Am. Dec. 584. New York: In re Kenmore, 110 N. Y. Supp. 1008; Armstrong v. Fort Edward, 84 Hun 261, 264, 32 N. Y. Supp. 433. North Carolina: Smith v. New- bern, 70 N. C. 14, 18, 16 Am. Rep. 766. Vermont: Swanton v. High- gate, — Vt. — (1908), 69 Atl. 667. Virginia: Donable v. Harrison- burg, 104 Va. 533, 535, 52 S. E. 174. Washington: Farwell v. Seattle, 43 Wash. 141, 144, 86 Pac. 217. West Virginia: Clarksburg Elec- tric Light Co. v. Clarksburg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A. 142. United States: Los Angeles City Water Co. v. Los Angeles, 88 Fed. 720, 729. 2 New York v. Dry Dock etc. R. Co., 133 N. Y. 104, 30 N. B. 563, 28 Am. St. Rep. 609; Le Couteulx V. Buffalo, 33 N. Y. 333. 3 Ex parte Burnett, 30 Ala. 461, 465. * Board of Commissioners v. County Commissioners, 20 Md. 449, 458; County Commissioners V. Duckett, 20 Md. 468, 477, 83 Am. Dec. 557. 5 Louisville City R. Co. v. Louis- ville, 8 Bush. (Ky.) 415; Greater New York Athletic Club v. Wur- ster, 19 N. Y. Misc. 443, 447, 43 N. Y. Supp. 703; Coatesville Bor- ough V. Coatesville E. L. H. & P. Co., 32 Pa. Super. Ct. 513, 516; State v. Fiske, 9 R. I. 94. estate v. Merrill, 37 Me. 329; Philadelphia v. Brabender, 17 Pa. Super. Ct. 331, 201 Pa. St. 574. Regulating the running of street cars. North Jersey St. R. Co. v. 53 § 59 LAW OF AUTOMOBILES. lature has power to reduce such right to a privilege, and to authorize a municipal corporation to impose a license fee on vehicles for the privilege of using the streets.' A grant of power by the legislature to boards of aldermen and selectmen to make regulations governing the use of auto- mobiles on particular roads is a proper delegation of the police power.^ The power of a municipal corporation to regulate the use of its streets is conferred for the purpose of keeping them in con- dition for public use and travel.^ Under general charter power giving cities control over their streets, they may regulate their use by all kinds of vehicles. They may fix the maximum rate of speed at which vehicles and animals may be driven through the streets, and may control the use of the streets generally to any reasonable extent for the safety of the people.i*" Thus, it has been held that cities may regulate the use of omnibuses and stage coaches in the streets ;i^ prohibit driving in the streets in a trot or gallop,!^ or faster than an "ordinary trot, "^3 or faster than a walk in turning street corners;^* regu- late the use of bicycles in the streets ;'* specify the time of day in which the streets may be used for certain purposes, and ex- clude vehicles of all kinds from entering upon or passing over the sidewalks; 18 require certain vehicles to carry a light at Jersey City, — N. J. L. — (1907), Minnesota: Duluth v. Mallett, 43 67 Atl. 1072; McQuillin, Mun. Ord., Minn. 204, 45 N. W. 154. § 433. North Carolina: State v. Sum- THarders Storage Co. v. Clii- merfield, 107 N. C. 895, 12 S. B. cago, 235 111. 58, 85 N. E. 245. 114. 8 Com. V. Kingsbury, — Mass. "Com. v. Stodder, 2 Gush. — (1908), 85 N. E. 848. (Mass.) 562; Crocker v. Knicker- 9 Chicago V. Banker, 112 111. booker Ice Co., 92 N. Y. 652. App. 94, 96-97. ^* Com. v. Worcester, 3 Pick. 10 Alabama: Montgomery v. Par- (^^^s.) 462, 474. ker, 114 Ala. 118, 21 So. 452, 62 " ^ealis y. Hayward, 48 Ind. 19. Am. St. Rep. 95. "Council v. Dunn, 1 McCord (S C ) 333 Lottisiana: Shreveport v. Dantes. I's Fuller v. Redding, 13 N. Y. 118 La. 113, 42 So. 716. ^^^ j,.^ g^^ 43 j^ ^ g^^^ gg. Massachusetts: Com. v. Rowe, Moore v. District of Columbia, 12 141 Mass. 79, 6 N. E. 545; Com. v. App. Cas. (D. C.) 537, 41 L. R. A. Fenton, 139 Mass. 195, 29 N. E. 2O8. 653. 16 Moore v. District of Columbia, Michigan: People v. Keir, 78 12 App. Cas. (D. C.) 537, 541, 41 Mich. 98, 43 N. W. 1039. L. R. A. 208. 54 LOCAL, POLICE REGULATIONS. § 60 nighV and give certain vehicles the right of way over other vehicles.i8 Eegulation of occupations, such as hackmen and others keep- ing vehicles for hire is a proper exercise of the police power.^'' An ordinance forbidding trains to stand at street crossings more than ten minutes, except in case of accident, has been held to be a reasonable and valid exercise of the police power.^o The validity of an ordinance prohibiting the stopping of a vehicle in the streets for more than twenty minutes was sus- tained.2i Likewise, the power of a municipal corporation to require a railroad company to use certain kinds of rails has been upheld.*" Under power to "regulate and license all cars, wagons, drays, coaches, omnibuses and every description of carriages," it was held that a municipal corporation was authorized to regulate the use of automobiles in its streets.'** However, this power does not justify a city in declaring any usual method of travel along the streets a nuisance, and prohibiting its use as such.2* § 60. Same — To regulate the speed of automobiles. "Under a general grant of police power, a municipal corporation may, in the interest of the public safety, regulate the speed of auto- mobiles in its streets and ways.^^ It may prescribe different rates of speed for different portions of the city, according to " Des Moines v. Keller, 116 la. St. P. M. & O. R. Co., 45 Minn. 370, 648, 88 N. W. 827. 48 N. W. 6, 11 L. R. A. 434. 18 People V. Little, 86 Mich. 125, A city has power to limit the 48 N. W. 693. time a railroad may block a street. 19 Chicago V. Banker, 112 111. Burger v. Missouri Pacific R. Co., App. 94, 97. 112 Mo. 238, 250, 20 S. W. 439. 2oMcCoy V. Philadelphia, W. & ,. \ municipal corporation may B. R. Co., 5 Houst. Del. Rep. 599, L™'* . *^« ^^^^^ "* ^^reet cars. g„g Schmidt V. St. Louis R. Co., 149 Mo. 269, 50 S. W. 921. 21 Com. V. Fenton, 139 Mass. 195, ^^^^^^ „f ^^.^j^^^ 29 jj^^ ^^ 29 N. E. 653. Y.) 357. 22 Louisville City R. Co. v. Louis- 23 Com. v. Hawkins, 14 Pa. Dist. ville, 8 Bush. (Ky.) 415. 592. An ordinance limiting the speed 24Chicago v. Banker, 112 111. of trains throughout the city to App. 94, 97. four miles an hour, held unreason- 25 Chicago v. Banker, 112 111. able and void. Evlson v. Chicago, App. 94, 97; Chittenden v. Colum- bus, 26 Ohio Cir. Ct. 531, 534. 55 §§ 61-62 LAW OF AUTOMOBILES. the width of the streets, their use, and the density of the popu- lation.26 A regulation fixing the rate of speed of automobiles on the city streets at six miles an hour between crossings and four miles an hour at crossings was declared reasonable. And it; was held that the use of the word "crossing" in the regula- tion plainly referred to street crossings.^'^ Under authority to "lay out, improve, govern and regulate parks and park-ways, and to make rules for the use and gov- ernment thereof," a board of park commissioners was held to have power to regulate the speed of automobiles in parks and park-ways.28 And an ordinance limiting the speed of auto- mobiles within a radius of half a mile from a certain bridge was declared not to be invalid because it failed to provide for marking with signs or otherwise the limits of such speed radius so that a driver would know when he reached it.^* § 61. Regulation of automobile as a public vehicle. A muni- cipal corporation may enact ordinances governing the conduct of hackmen in their relations with the public. Thus, an ordi- nance which required drivers of vehicles for hire, including operators of automobiles, to carry anyone who should apply to them unless engaged when they should display a sign "en- gaged," was held valid. In that case it was said: "There is nothing unreasonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public streets, to carry all persons applying to him for passage and , legally tendering the fare, as common carriers are required to do, and a notification to intending passengers that the vehicle is already in actual use."^'' § 62. Registration of automobiles and display of number. Requiring owners of automobiles to register their machines with a municipal officer, and to display a number, furnished by such officer, on some part of the automobile for the purpose of identification, is a valid police regulation. Such requirements are not unconstitutional as amounting to an unreasonable 26 Chittenden v. Columbus, 26 v. Tyler, — Mass. — (1908), 85 OMo Cir. Ct. 531, 534. N. E. 569. 27 Eichman v. Buehlieit, 128 "Wis. 29 Eichman v. Buchheit, 128 Wis. 385, 387, 107 N. W. 325. 385, 387, 107 N. W. 325. 28 Com. V. Crowinshield, 187 ' so Fonsler v. Atlantic City, 70 Mass. 221, 224, 72 N. E. 963; Com. N. J. L. 125, 127, 56 Atl. 119. 56 LOCAL. POLICE REGULATIONS. §63 search, nor as compelling the operator to testify against him- self in a criminal case, nor as depriving him of property with- out due process of law.^^ Under a grant of power to regulate the use of its streets, a municipal corporation has authority to provide for the regis- tration and numbering of automobiles.^^ § 63. Construction of charter powers. Charters of municipal corporations being special grants of power, are to be strictly construed; and whatever is not given expressly, or as a neces- sary means to the execution of expressly given powers, is withheld.33 The local corporation cannot go beyond the powers conferred by its charter, expressly or by implication,'* and any ambiguity or doubt arising out of the terms of the grant of power must be resolved against the corporation and in favor of the public.*^ The specific enumeration of certain powers impliedly ex- cludes those not mentioned.'® But the construction of power 31 People v. Sclineider, 139 Mich. 673, 103 N. W. 172, 69 L. R. A. 345, 12 Detroit Leg. N. 32. A city may require the display of a license number for the pur- pose of identification. Frankford etc. R. Co. v. Philadelphia, 58 Pa. St. 119. 32 People v. Schneider, 139 Mich. 673, 679, 103 N. W. 172, 69 L. R. A. 345, 12 Detroit Leg. N. 32. ssCalifornia: Douglass v. Plac- erville, 18 Cal. 643, 647. Connecticut: Crofut v. Danhury, 65 Conn. 294, 300, 32 Atl. 365. Iowa: Logan v. Pyne, 43 la. 524, 525, 22 Am. Rep. 261. Kansas: Leavenworth v. Nor- ton, 1 Kan. 432, 436. Mississippi: Crittenden v. Boone- ville, — Miss. — (1908), 45 So. 723, 725. Missouri: Trenton v. Clayton, 50 Mo. App. 535, 539. New York: People v. Ham, 32 N. y. Misc. 517, 521, 66 N. Y. Supp. 264; Parker v. Baker, 1 Clark's Ch. Cas. 223, 226. Oregon: Corvallis v. Carlile, 10 Oreg. 139, 141, 45 Am. Rep. 134. Pennsylvania: Lesley y. Kite, 192 Pa. St. 268, 274, 43 Atl. 959. Texas: Paris v. Sturgeon, — Tex. Civ. App. — (1908), 110 S. "W. 459, 461. McQuillin, Mun. Ord. § 48. ii Alabama: Bessemer v. Besse- mer Water Works, — Ala. — (1907), 44 So. 663. Connecticut: New London v. Brainard, 22 Conn. 552. Illinois: Petersburg v. Metzker, 21 111. 205, 206. Missouri: St. Louis v. Weher, 44 Mo. 547. New York: Parker v. Baker, 1 Clark's Ch. Cas. 223, 225. 3s Clark, Dodge & Co. v. Daven- port, 14 la. 494, 500; Meday v. Rutherford, 65 N. J. L. 645, 648, 48 Atl. 529; Corvallis v. Carlile, 10 Oreg. 139, 141, 45 Am. Rep. 134; Minturn v. Larue, 64 U. S. (23 How.) 435, 436. 36 New Orleans v. Phillippi, 9 La. Ann. 44, 46; Grand Rapids v. 57 § 64 LAW OP AUTOMOBILES. should not be unreasonable, nor so strict as to defeat the evi- dent objects and purposes of its creation.*'' It should be in accordance with the intent of the charter framers, to be gathered from the language and object of the charter provisions.*^ Thus under an authorization to regulate and license cart- men, hacks, cars, omnibuses, stages and all other carriages and vehicles used for the transportation of passengers, baggage or merchandise, it was held to be within the power of a municipal corporation to regulate the operation of automobiles for hire, and to fix the fare to be charged.*^ And it was declared that, under authority to regulate the storage of highly inflammable substances in the thickly populated portions of the District of Columbia, the Commissioners of the District were authorized to make and enforce a regulation requiring a license for the storage of gasoline in the city of Washington.*" Since an ordinance without a penalty would be nugatory, a municipal corporation which has the power to pass an ordi- nance has the implied power to provide for its enforcement by proper and reasonable fines against those who violate its pro- visions.* ^ § 64. Poilice ordinances. Local police regulations of auto- mobiles must be in the manner authorized by law. The muni- cipal charter and legislative acts applicable usually prescribe the method by which the municipal authorities may regulate those things which concern particularly the municipality and the inhabitants thereof. The legislative or governing body acts either by resolution or ordinance. The word "ordinance" means a local law, prescribing a gen- eral and permanent rule.*^ Hughes, 15 Mich. 54, 58; State v. *i Winooski v. Gokey, 49 Vt. Ferguson, 33 N. H. 424, 430. 282, 286. 37 Smith V. Madison, 7 Ind. 86; ^^ Indiana: Kersey v. Terre State ex rel. v. Allen, 183 Mo. 283, Haute, 161 Ind. 471. 476, 68 N. B. 291, 82 S. W. 103; Missouri Loan 1027. Bank v. How, 56 Mo. 53, 59. Iowa: State v. Omaha & C. B. 38 St. Louis V. Herthel, 88 Mo. R. & B. Co., 113 la. 30, 33, 84 N. 128, 130. W. 983, 52 L. R. A. 315, 86 Am. 39Fonsler v. Atlantic City, 70 St. Rep. 357. N. J. L. 125, 127. Minnesota: Evison v. Chicago, ■10 District of Columbia v. Wes- St. P. M. & O. R. Co., 45 Minn. 370, ton, 23 App. Cas. (D. C.) 363. 375, 48 N. W. 6, 11 L. R. A. 434. 58 LOCAL POLICE REGULATIONS. §65 The terms "ordinance" and "by-laws" are used inter-' changeably to signify a local law, or law applicable to a par- ticular community or municipal corporation.** It differs from a resolution or order, in that it prescribes a permanent rule of government, while a resolution is only temporary in its nature.** An ordinance is generally necessary when the muni- cipal assembly is acting in a legislative capacity, while acts that are done in a ministerial capacity and for a temporary purpose, may be in the form of a resolution.*^ § 65. Oonstruction of ordinances. A few general sugges- tions respecting the construction of ordinances designed to regulate automobiles will add greatly to the value of this chap- ter. Like statutes, ordinances are presumed to be valid,*® and Vew York: Armatage v. Fisher, 74 Hun 167, 172, 26 N. Y. Supp. 364. North Dakota: Shuttuck v. Smith, 6 N. D. 56. 72, 69 N. W. 5. Ohio: Blanchard v. Bissell, 11 Ohio St. 96, 103. Black's Law Diet. tit. "Ordi- nance." 2 Bouvier's Law Die, tit. "Ordi- nance." An ordinance must of necessity be in writing. Stevenson v. Bay City, 26 Mich. 44, 47. 43 Colorado: Tracey v. People, 6 Colo. 151, 153, 4 Am. & Eng. Corp. Cas. 373. Indiana: State v. Swindell, 146 Ind. 527, 532, 45 N. B. 700, 58 Am. St. Rep. 375. Iowa: State v. Omaha & C. B. R. & B. Co., 113 la. 30, 33, 84 N. W. 983, 52 L. R. A. 315, 86 Am. St. Rep. 357. Minnesota: State v. Lee, 29 Minn. 445, 451, 13 N. W. 913. New Jersey: Taylor v. Lam- hertsville, 43 N. J. Bq. 107, 112, 10 Atl. 809. Tennessee: Rutherford v. Swink, 96 Tenn. (12 Pickle) 564, 567, 35 S. W. 554. United States: National Bank of Commerce v. Grenada, 44 Fed. 262, 263. ** Altamont v. Baltimore & O. R. Co., 184 111. 47, 51, 56 N. E. 340; McQuillin, Mun. Ord. § 2. *5 Illinois: Chicago & N. P. R. Co. V. Chicago, 174 111. 439, 445, 51 N. E. 596. Iowa: Grimmell v. Des Moines, 57 la. 144, 147. New Jersey: Paterson v. Bar- net, 46 N. J. L. 62, 66; State v. Bayonne, 35 N. J. L. 335, 337. Ohio: Blanchard v. Bissell, 11 Ohio St. 96, 103. United States: Alma v. Guar- anty Savings Bank, 19 U. S. App. 622, 627. "Acts of legislation by a mu- nicipal corporation, which pre- scribe a permanent rule of conduct or government, and which are to have a continuing force and effect, must be established by ordinance." People V. Mount, 186 111. 560, 571, 58 N. E. 360. *«rilinois: Hawthorn v. People, 109 111. 302, 307, 50 Am. Rep. 610. Indiana: Citizens Gas & Min. Co. V. Elwood, 114 Ind. 332, 334. Missouri: Dollar Savings Bank 59 §65 LiAW OF AUTOMOBILES. must be reasonably construed, in a manner consistent with the intent of the authority enacting them.*^ They should be con- strued, if possible, so as to give full force and effect to their provisions, that they may accomplish the desired objects.** Where an ordinance is open to two constructions, one legal, ' the other illegal, that construction must prevail that will pre- serve its validity.*® A valid ordinance stands on the same footing as a statute,^" and its construction is for the court, and should never be left to the jury.5^ Words are to be taken in their plain and ordinary sense. Thus the phrase "duly established," used in reference to the passage of an ordinance, means that the ordiaance was passed according to law and became of legal effect.^^ Resort may be had to the context and the reason and the spirit of the ordinance.^^ Where an ordinance provided that on and after a certain date all automobiles "shall be propelled upon the public highways at a speed not exceeding ten miles an hour," it was held that, following the accepted rules of V. Ridge, 183 Mo. 506, 518, 82 S. W. 56. 'New YorTc: People v. Gillson, 109 N. Y. 389, 397, 17 N. B. 343, 4 Am. St. Rep. 465. Texas: Austin v. Austin City Cem. Assn., 87 Tex. 330, 338, 28 S. "W. 528, 47 Am. St. Rep. 114. *' Von Diest v. San Antonio T. Co., — Tex. Civ. App. — (1903), 77 S. W. 632. 43Whitlock V. West, 26 Conn. 406, 414; Merriam v. New Orleans, 14 La. Ann. 318. But see, Houlton V. Titcomb, 102 Me. 272, 284, 66 Atl. 733, 10 L. R. A. (N. S.) 580. 49 Illinois : Blanchard v. Benton, 109 111. App. 569, 576. Kansas: Swift v. Topeka, 43 Kan. 671, 675, 23 Pac. 1075. Kentucky: Lowry v. Lexington, 24 Ky. L. Rep. 516, 522, 68 S. W. 1109. Missouri: State v. Butler, 178 Mo. 272, 311, 77 S. W. 560; Brown V. Railway, 137 Mo. 529. Pennsylvania: Johnstown v. Cen- tral District & P. T. Co., 23 Pa. Super. Ct. 381, 384; Com. ex rel. v. Butler, 99 Pa. St. 535, 540. Washington: Bellingham v. Ciss- na, 44 Wash. 397, 402, 87 Pac. 481. 60 Pennsylvania Co. v. Frana, 13 111. App. 91, 97. 61 Illinois : Pennsylvania Co. v. Frana, 13 111. App. 91, 97. Missouri: Barton v. Odessa, 109 Mo. App. 76; Fruin-Bambrick Const. Co. V. Geist, 37 Mo. App. 509, 516. New Jersey: State v. Jersey City, 37 N. J. L. 348, 351. Rhode Island: Wilson v. New York, N. H. & H. R. Co., 18 R. I. 598, 603, 29 Atl. 300. Texas: Austin v. Austin City Cem. Assn., 87 Tex. 330, 338, 28 S. W. 528, 47 Am. St. Rep. 114. 62 Com. V. Sherman, 191 Mass. 439, 441, 78 N. E. 98. 63 1 Bl. Com. 59. 60 LOCAL POLICE REGULATIONS. § 66 construction,^* it is manifest that it declares it to be unlawful to propel an automobile upon the highways at a speed exceed- ing ten miles an hour.^^ §66. Construction of ordinajices passed under express power. Where an ordinance is passed by virtue of express power, not inconsistent with the Federal constitution or laws or the state constitution, and such power is substantially fol- j lowed, or is exercised in a reasonable manner, the ordinance will be sustained, regardless of the opinion of the court re- specting its reasonableness.^® Whether or not an ordinance is reasonably necessary is com- mitted in the first instance to the municipal legislative body, and the ordinance, when passed, is presumptively valid.®'' The motive of such body in the exercise of a discretionary power conferred upon it by the legislature, will not ordinarily be investigated.^® Thus an ordinance forbidding the use of automobiles on the public highways at night, not being un- reasonable on its face, was upheld.®* Likewise an ordinance fixing seven miles an hour as the maximum rate of speed at which vehicles may be driven in the 5*1 Bl. Com. 59. Neb. — (1907), 112 N. W. 306, 309. 55 Radnor Township v. Bell, 21 New Jersey: Budd v. Camden, Pa. Super. Ct. 1, 8. 69 N. J. L. 193, 54 Atl. 569. 66 McQuillin, Mun. Ord., § 181. New York: Barhite v. Home Alahama: Lindsay v. Anniston, Tel. Co., 50 N. Y. App. Div. 25, 28, 104 Ala. 257, 261, 16 So. 545, 53 63 N. Y. Supp. 659; Kittinger v. Am. St. Rep. 44. Buftalo Traction Co.. 160 N. Y. 377, Colorado: Phillips v. Denver, 19 388. Colo. 179, 183, 34 Pac. 902, 41 Am. An ordinance passed under ex- St. Rep. 230. press power cannot he unreasona- Georgia: Poulan v. Atlantic hie. Shelhyville v. Cleveland, C. Coast L. R. Co., 123 Ga. 605, 610, C. & St. L. R. Co., 146 Ind. 66, 70, 51 S. E. 657. 44 N. B. 929. Illinois: Peoria v. Calhoun, 29 sTKnobloch v. Chicago, M. & St. 111. 317, 320. P. R. Co., 31 Minn. 402, 404, 18 Louisiana: State v. Payssan, 47 N. W. 106; Peterson v. State, — La. Ann. 1029, 1031, 17 So. 481, 49 Neb. — (1907), 112 N. W. 306, Am. St. Rep. 390. 309. Missouri: Prior v. Construction ssEnders t. Friday, — Neb. Co., 170 Mo. 439, 451, 71 S. W. —(1907), 111 N. W. 140, 142. 205 ; St. Louis v. Green, 6 Mo. App. 59 Ex parte Berry, 147 Cal. 523, 591. 525, 82 Pac. 44, 109 Am. St. Rep. Nebraska: Peterson v. State, — 160. 61 §§ 67-68 LAW OF AUTOMOBILES. city streets, was declared to be not so unreasonable as to de- mand its invalidity.®" An ordinance which established a maximum rate of speed for automobiles at six miles an hour between street crossings, and four miles an hour at crossings, was declared reasonable and valid.8i So, too, an ordinance making it unlawful for those engaged in operating automobiles for hire to refuse to carry any person who applies to them and tenders the amount of the fare, when the vehicle is not already engaged, is a reasonable exercise of the police power.®^ § 67. Construction of ordinances not passed under express power. The reasonableness of ordinances passed under im- plied or incidental powers, or under a general grant of power, is subject to review by the courts, and if found to be unreason- able the ordinance will be declared void.®* If such ordinance is unjust or works unnecessary hardship upon those it is in- tended to affect, it will be held invalid.®* An ordinance containing an arbitrary requirement not founded on any public necessity or convenience will not be upheld. Thus an ordinance requiring the change in location of telephone poles as previously authorized, was held void where no reason therefor existed.®^ §68. Construction of penal ordinances. Ordinances regu- lating the use of automobiles on the public streets and provid- ing a penalty for their violation, are penal ordinances. The general rule for the construction of penal ordinances is that they must be strictly construed as against the local corpora- 80 Chittenden v. Columbus, 26 «* Illinois: Chicago v. Brown, Ohio C. C. 531, 534. 205 111. 568, 69 N. E. 65; Chicago 81 Bichman v. Buchheit, 128 Wis. & Alton R. Co. v. Carlinville, 200 385, 388, 107 N. W. 325. 111. 314, 320, 65 N. B. 730, 60 L. Same as to an ordinance fixing R. A. 391. the maximum speed at ten miles Maryland: Frostburg v. Wine- an hour. Radnor Township v. land, 98 Md. 239, 243, 56 Atl. 811. Bell, 21 Pa. Super. Ct. 1, 8. Missouri: State ex rel. v. Gates, 62 Fonsler v. Atlantic City, 70 N. 190 Mo. 540, 89 S. W. 881. J. L. 125, 127. Nebraska: Peterson v. State, — 88 Springfield v. Starke, 93 Mo. Neb.— (1907), 112 N. W. 306, 309. App. 70, 77; Livingston v. Wolf, Neio Jersey: Taylor v. Oris- 136 Pa. St. 519, 533, 20 Atl. 551, wold, 14 N. J. L. 222, 235. 20 Am. St. Rep. 936; Hayes v. Ap- 8s Hannibal v. Missouri & Kan- pleton, 24 Wis. 542. sas Tel. Co., 31 Mo. App. 23. 62 LOCAL POLICE REGULATIONS. § 69 tion.6® But the strict and rigid rules by which the validity of penal statutes is tested are not to be applied to the ordinances of a municipal corporation. Few ordinances could stand such a test.^'' The construction should be reasonable, and not strained, and effect given to the intention of the municipal legislative body if such can be done within reason.® ^ § 69. Discrimination — Class legislation. Ordinances must affect alike all persons of the class to which they refer. If they discriminate between persons of the same class, or if the clas- sification is unreasonable, they will be declared invalid.^®. Municipal corporations may classify objects of legislation, but the difference in classes which will support such legislation must be such as will in the nature of things furnish a reason- able basis for separate laws and regulations.'^" "To forbid an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large would be to deprive them of liberty in par- ticulars of primary importance to their pursuit of hap- piness."" Accordingly it was held that, an ordinance requiring one who uses his automobile for his private business and pleasure only, to submit to an examination and to take out a license (if the examining board see fit to grant it) imposes a burden on «s Florida: Ex parte Simms, 40 2 R. I. 154; Com. v. Robertson, 5 Fla. 432, 442, 25 So. 280. Cush. (Mass.) 438. Illinois: Chicago v. RumpfE, 45 e'Califomia: Ex parte Sohncke, 111. 90, 99. 148 Cal. 262, 82 Pac. 956. Indiana: Chicago, I. & L. R. Co. Indiana: Toledo, St. L. & "W. R. V. Salem, 166 Ind. 71, 75, 76 N. B. Co. v. Long, 169 Ind. 316, 82 N. E. 631. 757. Kentucky: Krlckle v. Com., 1 B. Missouri: Hannibal v. Missouri Men. 361, 362. & Kansas Tel. Co., 31 Mo. App. 23, Missouri: Pacific v. Seifert, 79 32. Mo. 210, 215. South Carolina: Laurens v. An- New Jersey: McConvill v. Jer- derson, 75 S. C. 62, 55 S. E. 136. sey City, 39 N. J. L. 38, 42. Canada: Reg. v. Flory, 17 Ont. New York: People v. Rosenberg, 715; Reg. v. Johnston, 38 Up. Can. 138 N. Y. 410, 415. Q. B. 549. 67 First Municipality v. Cutting, to state v. Loomis, 115 Mo. 307, 4 La. Ann. 335, 337; Loze v. Mayor, 314, 22 S. W. 350. 2 La. 427. 7i Cooley, Const. Lim. (7th ed.) ssMerriam v. New Orleans, 14 561; State v. Loomis, 115 Mo. 307, La. Ann. 318; Rounds v. Mumford, 314, 22 S. W. 350. 63 §70 LAW OF AtJTOMOBILBS. one class of citizens in the use of the streets not imposed upon others, and is therefore invalidJ^ However, laws relating to persons or things as a class, and not to persons or things of a class, are common and will usually be sustained^* Thus, an ordinance fixing a lower maximum rate of speed for automobiles than is allowed street cars does not unlawfully discriminate against the former. Such a classi- fication is reasonable, because street cars run on fixed tracks, while automobiles are uncertain in their course, consequently more dangerous J* §70. Distinction between regulate and prohibit. Regulate and prohibit have different and distinct meanings. Power granted to a municipal corporation to regulate a business, oc- cupation or vocation does not confer power to prohibit, either directly or by prohibitory charge for a license.''^ Power to Tz Chicago T. Banker, 112 111. App. 94, 99. ''3 California: Los Angeles v. Los Angeles Ind. Gas Co., — Cal. — (1908), 93 Pac. 1006. Illinois: Chudnovski v. Eckels, 232 111. 312, 320, 83 N. E. 846. Kansas: State v. Addison, 76 Kan. 699, 92 Pac. 581; Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429. Louisiana: State v. Schlemmer, 42 La. Ann. 1166, 8 So. 307. Missouri: State v. Bishop, 128 Mo. 373, 385, 31 S. "W. 9, 29 L. R. A. 200. Nebraska: Magneau v. Fremont, 30 Net. 843, 854, 47 N. W. 280, 9 L. R. A. 786, 27 Am. St. Rep. 436. Ohio: Davies v. State, 27 Ohio Cir. Ct. 593. Oklahoma: Williams v. Fourth National Bank, — Okla. — (1905), 82 Pac. 496. North Carolina: State v. Wolf, 145 N. C. 440, 59 S. E. 40. South Carolina: Summerville v. Pressley, 33 S. C. 56, 11 S. B. 545, 8 L. R. A. 854. Texas: Waters-Pierce Oil Co. v. State, — Tex. Civ. App. — (1908), 106 S. W. 918, 929. '* Chittenden v. Columbus, 26 Ohio Cir. Ct. 531, 534. IS Alabama: Miller v. Jones, 80 Ala. 89, 96. Florida: Mernaugh v. Orlando, 41 Fla. 433, 437-438, 27 So. 34. Michigan: In re Hauck, 70 Mich. 396, 407, 38 N. W. 269. Missouri: State v. De Bar, 58 Mo. 395, 397. New Jersey: McConvill v. Jer- sey City, 39 N. J. L. 38, 44. New York: Thousand Island Park Assn. v. Tucker, 173 N. Y. 203, 210, 65 N. E. 975, 60 L. R. A. 786. Ohio: Bronson v. Oberlin, 41 Ohio St. 476, 483, 52 Am. Rep. 90. Texas: Ex parte Patterson, 42 Tex. Cr. Rep. 256, 260, 58 S. W. 1011, 51 L. R. A. 654. But see. People v. Pratt, 129 N. Y. 68, 72, 29 N. B. 7. Ordinarily the power to regulate ■will not be construed to include the power to prohibit. State v. Mott, 61 Md. 297, 309. 64 LOCAL POLICE REGULATIONS. §§ 71-72 regulate a useful trade does not authorize its prohibition nor the creation of a monopoly. ''« It would be stating a paradox to say that a grant of power to regulate carries with it by im- plication the power to prohibit, for the very essence of regula- tion is the existence of something to regulate.'^ Travel along the streets in an automobile, or any other usual method of travel, cannot be declared a nuisance and prohibited on that account.^* However, a reasonable regulation of a privilege is not a denial of the right.'^^ §71. Scope of phrase "Transporting persons or property." Ordinances sometimes provide for the licensing of automobiles used in the transportation or conveyance of persons or prop- erty. These ordinances are not confined in their scope to auto- mobiles used for business purposes, but also include those used solely for pleasure. Thus, an ordinance made it unlawful to use vehicles in transporting persons or property upon the pub- lic streets and alleys of the city unless such vehicles were licensed. It was declared that an automobile carrying persons for pleasure was within the terms of such ordinance.*" § 72. Title of ordinances. The constitutional provision that "no bill shall contain more than one subject, which shall be clearly expressed ia the title," does not apply to municipal or- dinances.*^ However, the same rule has been made applicable to such ordinances ia many of the states by charter or statu- re Thousand Island Park Assn. Illinois: Harris v. People, 218 V. Tucker, 173 N. Y. 203, 210, 65 III. 439, 442, 75 N. E. 1012. N. E. 975, 60 L. R. A. 786. Indiana: Baumgartner v. Hasty, TT State V. De Bar, 58 Mo. 395, 100 Ind. 575, 585. 397; Ex parte Patterson, 42 Tex. Kansas: Topeka v. Raynor, 61 Or. Rep. 256, 260, 58 S. W. 1011, Kan. 10, 58 Pac. 557. 51 L. R. A. 654. Kentucky: Tuggles v. Com., 30 78 Chicago V. Banker, 112 111. Ky. L. Rep. 1071, 100 S. W. 235. App. 94, 97. Michigan: People v. Wagner, 86 79 Frankford etc. R. Co. v. Phil- Mich. 594, 597, 49 N. W. 609, 13 L. adelphia, 58 Pa. St. 119, 123, 98 R. A. 286, 24 Am. St. Rep. 141. Am. Dec. 242. Missouri: Tarkio v. Cook, 120 80 Harder v. Chicago, 235 111. Mo. 1, 7, 25 S. W. 202, 41 Am. St. 294, 85 N. B. 255. Rep. 678. 81 California: Ex parte Haskell, Pennsylvania: Yardley Borough, 112 Cal. 412, 421, 44 Pac. 725, 32 22 Pa. Co. Ct. 179, 180. li. R. A. 527. South Carolina: State v. Gibbes, Colorado: Scanlon v. Denver, 38 60 S. C. 500, 39 S. E. 1. Colo. 401, 403, 88 Pac. 156. 5 65 § 72 LAW OF AUTOMOBILES. tory provision. This rule is generally declared to be man- "datory, except in California and Ohio, where it is held to be directory only.*^ The object of this law is to prevent the uniting in one ordi- nance of diverse subjects or measures and effecting its passage by uniting in its support all those in favor of any subject which it contains, and to prevent the adoption of ordinances by the votes of members of the legislative body ignorant of their contents.** There was no design, however, by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number ;S* and if the provisions of the act all relate, directly or indirectly, to the same subject, having a natural connection, and are not foreign to the subject expressed in the title, the act is suf- ficient.8* It is not necessary that every end and means necessary to the accomplishment of the general object should be provided for by a separate act relating to that alone.^® Matters of detail need not be specified in the title, nor is it necessary that the title be a full index to all the contents of the 82 Chittenden v. Columbus, 26 of Supervisors v. Heenan, 2 Minn. Ohio Cir. Ct. 531, 533; s«j>ra, § 40. 330, 336; Heffner v. Toledo, 75 «3 Idaho: Pioneer Irrigation Dist. Ohio St. 413, 80 N. E. 8. V. Bradley, 8 Idaho 310, 317, 68 ss California: Law v. San Fran- Pac. 295, 101 Am. St. Rep. 201. cisco, 144 Cal. 384, 387, 77 Pac. Michigan: People v.' Mahaney, 1014. 13 Mich. 481, 495. Iowa: Lovilia v. Cobb, 126 la. Minnesota: Winters v. Duluth, 557, 559, 102 N. W. 496. 82 Minn. 127, 131, 84 N. W. 788. Michigan: People v. Mahaney, Nevada: State v. Commission- 13 Mich. 481, 495. ers of Humboldt Co., 21 Nev. 235, Missouri: St. Louis v. Liessing, 237, 29 Pac. 974. 190 Mo. 464, 489, 89 S. W. 611, 1 New York: Board of Water L. R. A. (N. S.) 918. Commissioners v. Dwight, 101 N. Nevada: State v. Commission- y. 9, 11, 3 N. E. 782. ers of Humboldt Co., 21 Nev. 235, Ohio: Chittenden v. Columbus, 238, 29 Pac. 974. 26 Ohio Cir. Ct. 531, 533; Heffner Pennsylvania: Com. v. Larkin, V. Toledo, 75 Ohio St. 413, 80 N. 27 Pa. Super. Ct. 397, 403. E. 8. United States: Ackley School 84 Pioneer Irrigation Dist. v. Dist. v. Hall, 113 V. S. 135, 142. Bradley, 8 Idaho 310, 68 Pac. 295, se People v. Mahaney, 13 Mich. 101 Am. St. Rep. 201; People v. 481, 495; Ackley School Dist. v. Mahaney, 13 Mich. 481, 495; Board Hall, 113 U. S. 135, 142. 66 LOCAL POLICE REGULATIONS. §73 law.*^ "The generality of a title is no objection so long as it is not made to cover legislation incongruous in itself. ' '^* Thus requirements that automobiles carry lighted lamps between sunset and sunrise, and that warning be given of their approach by sounding a bell, whistle, horn or gong, are properly included in an ordinance entitled, "An ordinance to regulate the speed of automobiles and other vehicles."*' § 73. Ordinance void in part. The fact that one portion of an ordinance is void for any reason which does not affect the whole does not invalidate another part, unless the two are so interblended or dependent that the vice of the one must be held to vitiate the other.''' Where the provisions of the ordinance are severable and are not interdependent one upon the other, the valid portions will be upheld, provided that eliminating the void portions and up- holding and enforcing the parts that are valid will not defeat 8T Lockhart v. Troy, 48 Ala. 579, 584; State v. Calloway, 11 Idaho 719, 737, 84 Pac. 27; State v. Com- missioners of Humboldt Co., 21 Nev. 235, 237, 29 Pac. 974; Yeager V. Weaver, 64 Pa. St. 425, 428. 88 St. Louis V. Liessing, 190 Mo. 464, 490, 89 S. W. 611, 1 L. R. A. (N. S.) 918. 89 Chittenden v. Columbus, 26 Ohio Cir. Ct. 531, 532. An ordinance which prohibits cattle running at large, various fea- tures being treated by different sections all germane to the sub- ject, does not contain more than one subject. Paducah v. Ragsdale, 28 Ky. L. Rep. 1057, 1059, 92 S. W. 13. »o California: Ex parte Haskell, 112 Cal. 412, 420, 44 Pac. 725, 32 L. R. A. 527. Georgia: Fichtenberg v. Atlan- ta, 126 Ga. 62, 54 S. E. 933. Illinois: Chicago & J. B. R. Co. V. Freeman, 125 111. App. 318, 320; Quincy v. Bull, 106 111. 337, 348. Kentucky: McNulty v. Toopf, 25 Ky. L. Rep. 430, 433, 75 S. W. 258. Maine: State v. Robb, 100 Me. 180, 194, 60 Atl. 874. Minnesota: State v. McFarland, — Minn. — (1905), 105 N. W. 187, 188. Missouri: St. Louis v. Leissing, 190 Mo. 464, 489, 89 S. W. 611, 1 L. R. A. (N. S.) 918; Barber As- phalt Paving Co. v. UUman, 137 Mo. 543, 569, 38 S. W. 458. New Jersey: Haynes v. Cape May, 52 N. J. L. 180, 183. New York: Broadway & S. A. R. Co. V. New York, 49 Hun 126, 133, 1 N. Y. Supp. 646; Rogers v. Jones, 1 Wend. 237, 260, 19 Am. Dec. 493. Ohio: Sterling v. Bowling Green, 26 Ohio Cir. Ct. 581, 589. South Carolina: State v. John- son, 76 S. C. 39, 44, 56 S. B. 544. Texas: Ex parte Henson, — Tex. Cr. App. — (1905), 90 S. W. 874, 875. Washington: Hillman v. Seat- tle. 33 Wash. 14, 19, 73 Pac. 791. McQuillin, Mun. Ord., § 295. 67 § 74 LAW OF AUTOMOBILES. the substantial object of the enactment.^^ And this may be so even though the sound and unsound parts are in the same section.'^ But if the ordinance is entire, each part having a general influence over the rest, and part is invalid, the entire ordinance is void.®* And if to enforce the valid portions would not carry out the general scheme of the ordinance, the whole must be declared inoperative.** A section of an ordinance relating to the equipment of auto- mobiles being void does not affect another section regulating their speed.*' §74. Conflict of ordinance with state law. The fact that the legislature has imposed certain regulations on an occupa- tion, business or vocation applicable to the entire state does not exclude the right of a municipal corporation to impose other regulations adapted to its own peculiar conditions, pro- vided such regulations do not conflict, and are not inconsistent with those of the state.^ But local authorities have not the power to suspend the operation, or change the provisions, of a state law.^ If there are inconsistencies between an ordinance and a statute, to the extent of such inconsistencies, the ordi- nance must give way.^ Aside from statutory prohibition, however, a municipal cor- poration may enact an ordinance establishing a lower max- imum rate of speed for automobiles than that provided by 91 St. Louis V. Grafeman Dairy 83 N. B. 44; Brazier v. Philadel- Co., 190 Mo. 492, 503, 89 S. W. 617, phia, 15 Pa. Dist. 14, 16, affirmed 1 L. R. A. (N. S.) 936. 215 Pa. St. 297, 64 Atl. 508; State 82 Ex parte Haskell, 112 Cal. 412, v. Austin, 114 N. C. 855, 858, 19 420, 44 Pac. 725, 32 L. R. A. 527; S. E. 919, 25 L. R. A. 283, 41 Am. State V. Bockstruck, 136 Mo. 335, St. Rep. 817; Seattle v. MacDon- 353, 38 S. W. 317. aid, 47 Wash. 298, 91 Pac. 952. »3 Chicago V. Gunning System, 2 Hartje v. Moxley, 235 111. 164, 114 111. App. 377, 383, affirmed 214 85 N. E. 216; State v. Austin, 114 111. 628, 73 N. B. 1035. N. C. 855, 857, 19 S. E. 919, 25 L. »« Blackshear v. Strickland, 126 R. A. 283, 41 Am. St. Rep. 817. Ga. 492, 54 S. E. 966. s Brazier v. Philadelphia, 15 Pa. 85 Chittenden v. Columbus, 26 Dist. 14, 16, affirmed 215 Pa. St. Ohio Cir. Ct. 531, 533. 297, 64 Atl. 508; State v. Thurs- 1 People V. Keeper of Prison, 121 ton, 28 R. I. 265, 66 Atl. 580; Ful- N. Y. App. Div. 645, 106 N. Y. ton v. Sims, 127 Mo. App. 677, 106 Supp. 314, affirmed 190 N. Y. 315, S. W. 1094. 68 LOCAL POLICE REGULATIONS. § 75 statute. Sucli an ordinance is not inconsistent with the statute.* Thus it was decided that a statute regulating the licensing and operation of automobiles, and providing, inter alia, that not more than one state license number shall be carried on the vehicle, and that a "license number obtained in any other place or state shall be removed from said vehicle while the vehicle is being in this commonwealth," does not conflict with or supersede an ordinance which also provides for the licens- ing, regulation and operation of automobiles within the city for which the ordinance was passed.^ A statute providing for a state license of automobiles and regulating their rate of speed, and declaring that cities shall have no power to require any such license, or to exclude auto- mobiles from the free use of the streets, was held not to pre- vent a city from fixing the speed of automobiles at a lower rate than that provided by the statute." An ordinance enacted by the authorities of a township under proper authority limiting the speed of automobiles to ten miles an hour was held not to be suspended by reason of a later act which allowed automobiles a maximum rate of speed of twenty miles an hour outside of cities and boroughs.'' A statute which provided that no ordinance of any city should require automobiles to travel at a lower rate of speed than eight miles an hour in the closely built up portions of such city, nor less than fifteen miles an hour where the houses in such city upon any highway were more than one hundred feet apart, was held not to fix any rate of speed at which auto- mobiles might be run, nor to confer upon municipal authorities power to pass ordinances regulating the speed with reference thereto; it merely limited the rights which the municipalities already had.^ §75. Same act may be an offense against state law and municipal ordinance. Penal ordinances are not criminal laws, * People V. Keeper of Prison, 121 Dist. 14, affirmed 215 Pa. St. 297, N. Y. App. Div. 645, 106 N. Y. Supp. 64 Atl. 508. 314. affirmed 190 N. Y. 315, 83 N. « Bellingham v. Cissna, 44 "Wash. B. 44; Brazier v. Philadelphia, 15 397, 400, 403, 87 Pac. 481. Pa. Dist. 14, 17, affirmed 215 Pa. ■? Radnor Township v. Bell, 27 St. 297, 64 Atl. 508. Pa. Super. Ct. 1. B Brazier v. Philadelphia, 15 Pa. s People v. Ellis, 88 N. Y. App. Div. 471, 85 N. Y. Supp. 120. 69 §75 LAW OF AUTOMOBILES. and an action to recover the penalty imposed by an ordinance for its violation is not a crimiaal action.^ The phrase "crim- inal cases" has reference to such acts or omissions as are in violation of the public laws of the state and not the violation of local ordinances or police regulations of a municipal corpo- ration. ^<* An action to recover a penalty for the violation of a muni- cipal ordinance is an action for the recovery of a debt, and is a civil suit.^^ Hence, with the exception of a few states,^ * the rule is that the same act may violate both the statute of the state and a municipal ordinance j^^ and a prosecution under 9 Colorado: Garland v. Denver, 11 Colo. 534, 535. Georgia: Williams v. Augusta, 4 Ga. 509, 513. Maryland: Shafer v. Mumma, 17 Md. 331, 336, 79 Am. Dec. 656. Michigan: Cooper v. People, 41 Mich. 403. Missouri: Gallatin v. Tarwater, 143 Mo. 40, 46, 44 S. W. 750. 10 Williams v. Augusta, 4 Ga. 509, 513. li- Colorado: Walton v. Canon city, 13 Colo. App. 77, 78, 56 Pac. 671. Georgia: Floyd v. Commission- ers of Eatonton, 14 Ga. 354, 356. Illinois: Chicago v. Kenney, 35 111. App. 57, 64. Indiana: Shea v. Muncie, 148 Ind. 14, 33, 46 N. B. 138. Michigan: People v. Board of Supervisors, 26 Mich. 422, 424. Missouri: Gallatin v. Tarwater, 143 Mo. 40, 46, 44 S. W. 750; Mex- ico V. Harris, 115 Mo. App. 707, 711, 92 S. W. 505. New Jersey: Smith v. Clinton, 53 N. J. L. 329, 21 Atl. 304. South Dakota: Lead v. Klatt, 13 S. D. 140, 143, 82 N. W. 391. 12 State V. Welch, 36 Conn. 215, 217; Taylor v. Owensboro, 98 Ky. 271, 32 S. W. 948, 56 Am. St. Rep. 361; Ex parte Freeland, 38 Tex. Cr. App. 321, 42 S. W. 295. 13 Dakota: Elk Point v. Vaughn, 1 Dak. 113, 46 N. W. 577. Florida: Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L. R. A. 234. Idaho: State v. Preston, 4 Idaho 215, 38 Pac. 694. Illinois: McPherson v. Che- banse, 114 111. 46, 28 N. B. 454. Indiana: Williams v. Warsaw, 60 Ind. 457. Iowa: Neola v. Reichart, 131 la. 492, 109 N. W. 5; Bloomfield v. Trimble, 54 la. 399, 6 N. W. 586, 37 Am. Rep. 212: Louisiana: Monroe v. Hardy, 46 La. Ann. 1232, 15 So. 696. Michigan: People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124. Missouri: St. Louis v. De Las- sus, 205 Mo. 578, 583, 104 S. W. 12. New Jersey: State v. Trenton, 51 N. J. L. 498, 18 Atl. 116, 5 L. R. A. 352. New York: Brooklyn v. Toyn- bee, 31 Barb. 282. Ohio: Wightman v. State, 10 Ohio 452. Washington: Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324. United States: Moore v. People, 14 How. (55 U. S.) 13, 14 L. Ed. 306. 70 LOCAL POLICE REGULATIONS. § 76 one will not bar a prosecution under the other.^* Thus where a municipal ordinance prescribed a lower rate of speed' at which automobiles might be operated in the city streets than a statute of the state, one driving an automobile within the city in excess of the higher rate of speed was subject to prose- cution under both the ordinance and statute.!^ § 76. Reward for evidence of violations of speed law. By virtue of authority to charge the county for "all expenses necessarily incurred" by him "in criminal actions or proceed- ings arising in his county," a district attorney offered a re- ward of twenty-five dollars to any person furnishing evidence upon which a conviction should be had for the violation of the state "motor vehicle law." In deciding that the district at- torney was without authority to offer such reward, the court said: "I do not think the offer in question can be regarded in any sense as moneys expended by the district attorney in executing the duties of his office. His duties are in the prose- cution of offenses committed, and do not specifically include the prevention of crime in any other sense than as that duty devolves upon every good citizen. It would be a great strain of language to regard the offer of a sum of money to be paid by the county for evidence by which to secure the conviction of an offender, for a crime not yet committed, as an expense necessarily incurred by the district attorney in a criminal action. "^^ 1* Alabama: Mayor v. Allaire, Missouri: State v. Muir, 164 Mo. 14 Ala. 400, 403. 610, 65 S. W. 285. Arkansas: Van Buren v. Wells, New York: Blatcbley v. Moser, 53 Ark. 368, 14 S. W. 38, 22 Am. 15 Wend. 215. St. Rep. 214. Oregon: Wong v. Astoria, 13 Colorado: Hughes v. People, 8 Oreg. 538, 11 Pac. 295. Colo. 536, 9 Pac. 50. Texas: Hamilton v. State, 3 Georgia: McRea v. Amerlcus, Tex. Cr. App. 643. 59 Ga. 168, 27 Am. Rep. 390. McQuillin, Mun. Ord., § 500. Illinois: Hankins v. People, 106 Contra: State v. Welch, 36 Conn. 111. 628, 638. 215, 217; Taylor v. Owensboro, 98 Indiana: Waldo v. Wallace, 12 Ky. 271, 32 S. W. 948, 56 Am. St. Ind. 569. Rep. 361; Ex parte Preeland, 38 Louisiana: Monroe v. Hardy, 46 Tex. Cr. App. 321, 42 S. W. 295. La. Ann. 1232, 15 So. 696. i^s People v. Keeper of Prison, 121 Maryland: Shafer v. Mumma, N. Y. App. Div. 645, 106 N. Y. 17 Md. 331, 336, 79 Am. Dec. 656. Supp. 314, affirmed 190 N. Y. 315, Minnesota: State v. Robitshek, 83 N. E. 44. 60 Minn. 123, 61 N. W. 1023. is McNeil t. Board of Supervis- ors, 114 N. Y. App. Div. 761. 71 CHAPTEOB V. STATE LICENSE LAWS. 5 77. License laws present interest- ing legal questions. 78. License defined. 79. Distinction between "license fee," "license tax" and "tax." 80. Power of state to license au- tomobiles. 81. Purpose of a license. 82. License is personal. 83. License may be revoked. §84 85. 86. 87. License fee must be reasona- ble. Fixing the amount of the fee. Revenue incidentally derived from license. Disposition of license fee. 88. License fee not a tax on auto- mobiles. 89. County license; necessary in every county. 90. Mandamus to compel issu- ance of license. § 77. License laws present interesting legal questions. Many of the states have enacted statutes providing for the licensing of automobiles, and requiring a fee to be paid therefor. These statutes present many interesting questions of law, e. g., the power of the state to require the owner of a lawful conveyance to take out a license before driving the same on the public highways; whether or not a fee can lawfully be imposed for the issuance of such license. These and other questions pertaining to state license laws will be treated in this chapter. § 78. License defined. Generally, a license is a privilege, granted by competent authority, to do that which would be unlawful without such privilege.^ 1 Georgia: Home Insurance Co. V. Augusta, 50 Ga. 530, 537. Illinois: Wilkie v. Chicago, 188 111. 444, 453, 58 N. E. 1004, 80 Am. St. Rep. 182. Indiana: Shuman v. Ft. Wayne, 127 Ind. 109. 115, 26 N. E. 560, 11 L. R. A. 378. Nebraska: State ex rel. v. Har- dy, 7 Neb. 377, 380. New Jersey: North Hudson Co. R. Co. V. Hoboken, 41 N. J. L. 71, 75. Ohio: Anderson v. Brewster, 44 Ohio St. 576, 587, 9 N. E. 683; State V. Hipp, 38 Ohio St. 199, 226. Oregon: Hackett v. Wilson, 12 Oreg. 25, 37, 6 Pac. 652. Pennsylvania: Caldwell v. Pul- ton, 31 Pa. St. 475, 477, 72 Am. Dec. 760. Wyoming: Metcalf v. Hart, 3 Wyo. 513, 527, 27 Pac. 900, 31 Am. St. Rep. 122. United States: Pullman South- 72 STATE LICENSE LAWS. §78 Justice Mcllvaine, in State v. Praine,^ says that "A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not en- joyed by a class of citizens to which the license belongs."* And he adds: "A common right is not the creature of a li- cense law. The removal of individual disabilities, as to all persons, is not the granting of a license." Justice Cooley defines a license to be "A permission to do something which without the license would not be allowable. ' '* Further definitions are: "A permit to do business which could not be done without the license ;"5 "A right or immunity granted to a person either against or beyond the course of the common or general law."® "In a general sense a license is an official permit to carry on a business or trade or perform other acts which are forbidden by law except to persons obtaining such permit."'' Other definitions will be found in the notes.^ 3rn Car Co. v. Nolan, 22 Fed. 276, 279. 2 39 Ohio St. 399, 413. 3 Silver v. Sparta, 107 Ga. 275, 278, 33 S. E. 31; State v. Peel Splint Coal- Co., 36 W. Va. 802, 814, 15 S. E. 1000, 17 L. R. A. 385. * Youngblood v. Sexton, 32 Mich. 406, 419, 20 Am. Rep. 654; Stand- ard Oil Co. v. Com., 26 Ky. L. Rep. 985, 987, 82 S. W. 1020; Sinnot v. Davenport, 63 U. S. (22 How.) 227, 240, 16 L. Ed. 243. 6 Sonora v. Curtin, 137 Cal. 583, 585, 70 Pac. 674; San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113, 122, 15 Pac. 380, 5 Am. St. Rep. 425. Dike V. State, 38 Minn. 366, 368, 38 N. W. 95. 7 Hoefling v. San Antonio, 85 Tex. 228, 231. s Arkansas: "A license is a priv- ilege granted by the state, usually on payment of a valuable consider- ation, though this is not essential." Hubman v. State, 61 Ark.. 482, 489, 33 S. "W. 843. Colorado : "A license confers the right to do that which without the license would be unlawful." Jef- ferson Co. V. Mayr, 31 Colo. 173, 175, 74 Pac. 458; People v. Raims, 20 Colo. 489, 493. Connecticut: "The word 'license' is used in the statute to signify the intangible right granted to the licensee, as well as to signify the writing signed by the commission- ers which is the instruraent and evidence of that grant." Connecti- cut Breweries Co. v. Murphy, — Conn. — (1908), 70 Atl. 450, 452; Quinnipiac Brewing Co. v. Hack- barth, 74 Conn. 392, 394, 50 Atl. 1023. Illinois: A license implies a privilege that cannot be enjoyed without legal authority. Chicago V. Banker, 112 111. App. 94, 97. "Permission or authority"; "free- dom to act"; "to be left free"; "al- lowable." Hartford Fire Ins. Co. v. Peoria, 156 111. 420, 427, 40 N. E. 967. Vermont: "Consent or permis- 73 §78 LAW OF AUTOMOBILES. "The thing to be done may be something lawful in itself, and only prohibited for the purposes of the license ; that is to say, prohibited in order to compel the taking out of a li- cense "9 There are three leading ideas involved in the definition of a license. First, it confers a privilege on the persons so licensed to do certain things or pursue a certain calling not open to all ; second, it legalizes acts which, if done without the license, would be unlawful ; third, it is a privilege granted as part of a system of police regulation, and herein it differs from tax- ation-io The object of a license is to confer a right which does not exist without the license.^ ^ The word "privilege," as used in the definitions of license, means, "that which cannot be enjoyed without a legal author- ity, which is generally evidenced by a license. "^^ "License" is frequently used in a secondary sense to mean sion." Winooski v. Gokey, 49 Vt. 282, 286. Wisconsin: "Permit." Neuman V. State, 76 Wis. 112, 116, 45 N. W. 30. "Is a grant of permission or authority." State v. McPetridge, 56 Wis. 256, 259, 14 N. W. 185. United States: "A license is merely a permission to do what is unlawful at common law, or is made so by some statute or ordi- nance, including the one authoriz- ing or requiring the license." Laundry License Case, 22 Fed. 701, 703. "Permission or authority; as a license to do a particular thing." Anderson's Law Diet., tit. "Li- cense." "Authority to do some act, or carry on some trade or business, in its nature lawful but prohibited by statute, except with the permis- sion of the civil authority or which would otherwise be unlawful. "Bouv.'er's Law Diet, tit. "Li- cense." The license need not be in writ- ing. Boston V. Schatfer, 9 Pick. (Mass.) 415. The law itself is the license. State V. Hipp, 38 Ohio St. 199, 221. »Hubman v. State, 61 Ark. 482, 489, 33 S. W. 843. 10 Hubman v. State, 61 Ark. 482, 489, 33 S. W. 843, 11 Georgia: Home Insurance Co. v. Augusta, 50 Ga. 530, 537; Savan- nah V. Charlton, 36 Ga. 460, 462. Indiana: Shuman v. Ft. Wayne, 127 Ind. 109, 115, 26 N. E. 560, 11 L. R. A. 378. Michigan: People v. Lyng, 74 Mich. 579, 585, 42 N. W. 139; Chil- vers V. People, 11 Mich. 43, 49. Nebraska: Pleuler v. State, 11 Neb. 547, 564, 10 N. W. 481. Ohio: Anderson v. Brewster, 44 Ohio St. 576, 588, 9 N. E. 683; Ad- ler v. Whitbeck, 44 Ohio St 539, 558, 9 N. E. 672. Utah: Matthews v. Jensen, 21 Utah 207, 218, 61 Pac. 303. 1 Desty, Taxation, 306. 12 Chicago V. Collins, 175 111. 445, 456, 51 N. E. 907, 49 L. R. A. 408, ■4 STATE LICENSE LAWS. §79 the written document which, is generally issued to the licensee upon his fulfilling all the requirements of the law relating to the licensed vehicle, business or occupation. It is not essential to the authority or privilege itself, and is issued principally as a matter of evidence.*^ A license is essentially a part of the police power, and an incident to the power to regulate.^* §79. Distmction between "license fee," "license tax" and "tax." It is a fact to be deplored that legal terms are often loosely and improperly used.^^ The terms "license," "license fee" and "license tax" have been used without regard to their distinguishing features to such an extent that one must follow closely the reading of a case dealing with either to determine to which it refers. A tax is a burden or charge imposed by the legislative power 67 Am. St. Rep. 224; Gate v. State, 3 Sneed (Tenn.) 120, 121. See also Van Valkenburg v. Brown, 43 CaL 43, 49, 13 Am. Rep. 136. A privilege is "the exercise of an occupation or business -which requires a license from some proper authority designated by a general law, and not open to all or any one without such license." State V. Schlier, 3 Heisk. (Tenn.) 281, 283; Clark v. Montague, 71 Tenn. (3 Lea) 274, 277; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456, 457. The carrying on of "every occu- pation which is not open to every citizen, but can only be exercised by a license from some constituted authority." Pullman Southern Car Co. V. Nolan, 22 Fed. 276, 279; French v. Baker, 4 Sneed (Tenn.) 193, 195. "A privilege is whatever the leg- islature chooses to declare and tax as such, and a positive prohibition, or the power to prohibit, is not es- sential to its validity." Burke v. Memphis, 94 Tenn. 692, 694, 30 S. W. 742; Kurth v. State, 86 Tenn. (2 Pickle) 134, 136. Other definitions of privilege will be found in Territory v. Stokes, 2 N. M. 161, 169; Turnpike Cases, 92 Tenn. 369, 375, 22 S. W. 75; Lawyer's Tax Cases, 55 Tenn. (8 Heisk.) 565, 649. 13 Elmore v. Overton, 104 Ind. 548, 555, 4 N. E. 197, 54 Am. Rep. 343; Moore v. St. Paul, 61 Minn. 427, 429, 63 N. W. 1087; United States V. Cutting, 70 U. S. (3 Wall.) 441, 443, 18 L. Ed. 24l'; Connecticut Breweries Co. v. Mur- phy, — Conn. — (1908), 70 Atl. 450, 452. 1*^ California: In re Guerrero, 69 Cal. 88, 10 Pac. 261. Illinois: Conklin Lumber Co. v. Chicago, 127 III. App. 103. Iowa: Ottumwa v. Zekind, 95 la. 622, 626, 64 N. W. 646, 29 L. R. A. 734, 58 Am. St. Rep. 447. Maryland: Vansant v. Harlem Stage Co., 59 Md. 330, 335. Massachusetts: Com. v. New- hall, 164 Mass. 338, 41 N. E. 647. New Hampshire: State v. For- cier, 65 N. H. 42, 17 Atl. 577. IB Titusville v. Gahan, 34 Pa. Super. Ct. 613, 616, 624. 7.5 §79 LAW OF AUTOMOBILES. upon persons or property to raise money for public purposes, or to defray the expenses of administering the government.^® A license tax is imposed on a business or occupation merely for the purpose of raising revenue.^^ It is not a tax on prop- erty/^ and, accurately speaking, it has nothing to do with the granting of a privilege or the regulation of business.^ ^ A license is merely the permission or authority to do some act, 2" while a license fee is a sum of money charged to defray the expense of issuing a license certificate and of regulating the business, vehicle or occupation so licensed.^i A business may be subject to a license and a license tax; the former being a mere privilege to do business for which a fee may be required, and the latter imposed for revenue.^^ And the property used 16 California: Alderson v. Hous- lis, 168 Ind. 631, 637, 80 N. E. 632. ton, — Gal. — (1908), 96 Pac. 884, 886; Dranga v. Rowe, 127 Gal. 506, 509, 59 Pac. 944. Illinois : Chicago v. Baptist The- ological Union, 115 111. 245, 251, 2 N. B. 254. Missouri: Deal v. Mississippi Co., 107 Mo. 464, 470, 18 S. W. 24, 14 L. R. A. 622; Glasgow v. Rowse, 43 Mo. 479, 489. New York: In re Hun, 144 N. Y. 472, 477, 39 N. E. 376. United States: Illinois Central R. Co. V. Decatur,. 147 U. S. 190, 13 Sup. Ct. 293, 37 L. Ed. 132. A tax is a rate or sum of money assessed on the person or property of the citizen for the support of the government. Home Insurance Co. V. Augusta, 50 Ga. 530, 537; Savannah v. Charlton, 36 Ga. 460, 462; Pullman Southern Car Co. v. Nolan, 22 Fed. 276, 279. "The providing of revenue for the ordinary expenses of the state." Littlefleld v. State, 42 Neb. 223, 226, 60 N. W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697. !■? California: In re Guerrero, 69 Cal. 88, 91, 10 Pac. 261. Indiana: Schmidt v. Indianapo- St. Louis v. Boat- men's Insurance & Trust Co., 47 Mo. 150; Kansas City v. Grush, 151 Mo. 128, 52 S. W. 286. Oregon: Ellis v. Frazier, 38 Oreg. 462, 466, 63 Pac. 642, 53 L. R. A. 454. Utah: Matthews v. Jensen, 21 Utah 207, 218, 61 Pac. 303. 18 San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113, 122, 15 Pac. 380, 5 Am. St. Rep. 425. i!> Schmidt v. Indianapolis, 168 Ind. 631, 637, 80 N. E. 632. When the word "tax" is used in- stead of "license," when the tax is allowed for a privilege, it means a "license" for a privilege. Buffalo V. Lewis, 123 N. Y. App. Div. 163, 108 N. Y. Supp. 450, 452. ^ 20 Connecticut Breweries Co. v. Murphy, — Conn. — (1908), 70 Atl. 450, 452. 21 Conklin Lumher Co. v. Chi- cago, 127 111. App. 103; Schmidt v. Indianapolis, 168 Ind. 631, 637, 80 N. E. 632; State v. Bean, 91 N. C. 554, 559. 22 San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113, 122, 15 Pac. 380, 5 Am. St. Rep. 425. 76 STATE LICENSE LAWS. § 80 in such business is, at the same time, subject to an ad valorem tax.23 "A license being of the nature of a privilege, it would be a strange incongruity to grant to one the privilege of bearing the burden of a tax. * * * The two things are entirely- distinct in their characteristics. The license may exist without the imposition of a tax, and the tax may be imposed without the granting of a license. "2* § 80. Power of the state to license automobiles. The state has the power to license as a means of regulation all business and employments which impose a burden on the public, or when the public interests or welfare require that the business or occupation should be regulated.^^ The licensing of automobiles is a valid exercise of the police power.26 And is unaffected by the fourteenth amendment to the Federal eonstitution.^T Such law is not in violation of the Federal constitution because it "infringes upon the constitu- tional rights of a class of citizens by denying to the owners of automobiles within the state the equal protection of the law. "28 On the other hand, it has been held that an ordinance which requires one who uses his automobile for his nrivate business and pleasure to submit to an examination and to take out a 23 Ft. Smith V. Scruggs, 70 Ark. Tennessee: "Western Union Tel. 549, 69 S. W. 679, 58 L. R. A. 921. Co. v. State, 9 Baxt. 509. 24 Anderson V. Brewster, 44 Ohio Utah: Matthews v. Jensen, 21 St. 576, 588, 9 N. E. 683. Utah 207, 218, 61 Pae. 303. Further on this suhject see the But see, Chicago v. Collins, 175 following: 111. 445, 51 N. E. 907, 49 L. R. A. California: Los Angeles v. Los 408, 67 Am. St. Rep. 224; Living- Angeles Indepefldent Gas Co., — ston v. Paducah, 80 Ky. 656. Cal. — (1908), 93 Pac. 1006. 25 people v. Steele, 231 111. 340, Illinois: Bassette v. People, 193 83 N. E. 236; Otting v. Bellevue, 111. 334, 342, 62 N. E. 215, 56 L. R. 32 Ky. L. Rep. 186, 105 S. W. 375; A. 558. Marmet v. State, 45 Ohio St. 63, 71, Indiana: Schmidt v. Indianapo- 12 N. B. 463. lis, 168 Ind. 631, 637, 80 N. B. 632. 26 Conklin Lumber Co. v. Chi- Missouri: Kansas City v. Grush, cago, 127 111. App. 103; Unwen v. 151 Mo. 128, 52 S. "W. 286. State, 73 N. J. L. 529, 533, 64 Atl. New Jersey: Freeholders v. Bar- 163, 68 Atl. 110. her, 7 N. J. L. (2 Halst.) 64, 67. 27Unwen v. State, 73 N. J. L. Oregon: Ellis v. Frazier, 38 529, 64 Atl. 163, 68 Atl. 110. Oreg. 462, 466, 62 Pac. 462, 53 L. 28 Com. v. Hawkins, 14 Pa. Dist. R. A. 454. 592, 594. 77 §§ 81-82 LAW OF AUTOMOBILES. license (if the examining board see fit to grant it) is imposing a burden on one class of citizens in the use of the streets not imposed upon others, and is invalid.29 § 81. Purpose of a license. By means of licensing, the per- sons or occupations to be regulated are located and identified, and brought within the observation of the public authorities, so that whatever regulations are made concerning them may be the more easily and certainly enforced. ^^ Frequently the law requires evidence as to the good moral character and general qualifications of the applicant before a license will be issued to him.^^ The object of licensing automobile operators is to furnish a further guaranty than registration of the automobile, that proper use of the automobile will be made, and that it will be operated in compliance with the law.** § 82. License is personal. An automobile or chauffeur's license is personal to the one to whom it is issued, and it cannot be delegated or assigned to another.** A license is generally issued to an individual on account of his peculiar fitness for the business, trade or profession which he is licensed to carry on, or for the purpose of identification and regulation, and in either case to allow the license to be transferred would be to thwart the purpose and intent of the law. A partnership or corporation as such is not entitled to a license to operate an automobile. As was said in a New Hamp- shire case: "The license contemplated by the statute is per- sonal to the particular person who operates the automobile. Every person who operates it must have a license. A corpora- tion or partnership which owns or controls an automobile 29 Chicago V. Banker, 112 111. Mississippi: Seal v. Donnelly, App. 94, 99-100. 60 Miss. 658, 662. 30 Liaundry License Case, 22 Fed. Missouri: Ragan v. McCoy, 29 701, 703. Mo. 356, 368. 31 Freeholders v. Barber, 7 N. J. New Jersey: East Jersey Iron L. (2 Halst.) 64, 67; State v. Co. v. Wright, 32 N. J. Eq. Moore, 113 N. C. 697, 706. (5 Stew.) 248, 253. 32 Emerson Troy Granite Co. v. Oregon: Hackett v. Wilson, 12 Pearson, 74 N. H. 22, 64 Atl. 582. Oreg. 25, 37, 6 Pac. 652. 33 Connecticut : Prince v. Case, Pennsylvania: In re Buck's Bs- 10 Conn. 375, 382. tate, 185 Pa. St. 57, 60, 39 Atl. 821. 78 STATE LICENSE LAWS. §83 should register it in the corporate or partnership name, but is not entitled to a license to operate it."^* §83. License may be revoked. A license has none of the elements of a contract, and does not confer an absolute right, but only a personal privilege to be exercised under the re- strictions imposed by the law.^s Such license may be revoked for cause at any time by the authority which granted it.*® However, a license cannot be revoked without such cause as will reasonably justify the revocation thereof.*'^ Statutes imposing licenses frequently provide for their revocation upon the happening of certain contingencies.^* And by accepting such a license, the licensee consents to all the conditions thereby imposed, including the provision as to revocation.39 34 Emerson Troy Granite Co. v. "The correlative power to re- Pearson, 74 N. H. 22, 64 Atl. 582. 35 Colorado: People v. Raims, 20 Colo. 489, 493. Indiana: Stone v. Fritts, 169 Ind. 3,61, 82 N. B. 792. Massachusetts: Calder v. Kur- by, 5 Gray 597; Com. v. Kinsley, 133 Mass. 578, 579. Missouri: St. Charles v. Hack- man, 133 Mo. 634, 642. Tennessee: State v. Burgoyne, 75 Tenn. (7 Lea) 173, 40 Am. Rep. 60. 36 Colorado: People v. Raims, 20 Colo. 489, 493. Illinois : Schwuchow v. Chicago, 68 111. 444. Indiana: Stone v. Fritts, 169 Ind. 361, 82 N. E. 792. Massachusetts : Com. v. Kinsley, 133 Mass. 578, 579. Missouri: St. Charles v. Hack- man, 133 Mo. 634, 642. New York: Metropolitan Milk & Cream Co. v. New York, 113 N. Y. App. Div. 377, 98 N. Y. Supp. 894, affirmed 186 N. Y. 533, 78 N. B. 1107; People ex rel. v. Bogart, 122 N. Y. App. Div. 872, 107 N. Y. Supp. 831. yoke or recall a permission is a necessary consequence of the main power." Stone v. Fritts, 169 Ind. 361, 82 N. E. 792, 794; Doyle v. Continental Ins. Co., 94 U. S. 535, 540, 24 L. Ed. 148. 37 State ex rel. v. Baker, 32 Mo. App. 98, 101; United States v. Mac- Farland, 28 App. Cas. (D. C.) 552, 561. But see Doyle v. Continental Ins. Co., 94 U. S. 535, where it is held that a license may be revoked by the state without cause. 38 Com. v. Kinsley, 133 Mass. 578; Grand Rapids v. Braudy, 105 Mich. 670, 677, 55 Am. St. Rep. 472; Child v. Bemus, 17 R. I. 230. 39 "Wiggins V. Chicago, 68 111. 37?, 378; Stone v. Fritts, 169 Ind. 361, 82 N. E. 792; Metropolitan Milk & Cream Co. v. New York, 113 N. Y. App. Div. 377, 98 N. Y. Supp. 894, affirmed 186 N. Y. 533, 78 N. E. 1107. Where a pawnbroker had been convicted of violating a city ordi- nance regulating the business of pawnbrokers, it was lawful to re- voke his license, and this notwlth- 79 §84 LAW OF AUTOMOBILES. The repeal of the law imposing or authorizing a license does not of necessity revoke the licenses issued under such law.4o § 84. License fee must be reasonable. A license fee should be such a sum of money as will compensate for the expense of issuing the license certificate and for the probable expense of regulating and controlling the operation of the automobile licensed.*! Anything in excess of an amount which will de- fray such necessary expenses cannot be imposed under the police power, because it then becomes a revenue measure.*^ standing an appeal liad been taken and was pending In the case of his conviction. Harrison v. People, 121 111. App. 189. ^o Adams v. Hackett, 27 N. H. 289, 59 Am. Dec. 376. The license Is a privilege which, during its term, is not dependent on the continuance of the law un- der which it was granted. Hlrn v. State, 1 Ohio St. 15; Davis v. State, 2 Tex. App. 425, 431. *i Alabama: Van Hook v. Sel- ma, 70 Ala. 361, 364, 45 Am. Rep. 85. Arkansas: Fayetteville v. Car- ter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509. Florida: Jacksonville v. Led- with, 26 Fla. 163, 206, 7 So. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558. Illinois: Price v. People, 193 111. 114, 61 N. B. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306. Indiana: Wysong v. Lebanon, 163 Ind. 132, 71 N. E. 194. Iowa: Burlington v. Unter- klrcher, 99 la. 401, 405, 68 N. W. 795. Kansas: In re Martin, 62 Kan. 638, 64 Pac. 43. Maine: State v. Snowman, 94 Me. 99, 113, 46 Atl. 815, 50 L. R. A. 544, 80 Am. St. Rep. 380. Michigan: Grand Rapids v. Braudy, 105 Mich. 670, 676, 64 N. "W. 29, 32 L. R. A. 116, 55 Am. St. , Rep. 472. Minnesota: St. Paul v. Dow, 37 Minn. 20, 22, 5 Am. St. Rep. 811. Missouri: St. Louis v. Boat- men's Insurance & Trust Co., 47 Mo. 150. Nebraska: Llttlefield v. State, 42 Neb. 223,- 226, 60 N. "W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697. New Jersey: Blanke v. Board of Health, 64 N. J. L. 42, 44 Atl. 847. New York: People v. Jarvis, 19 N. Y. App. Div. 466, 467. Ohio: Baker v. Cincinnati, 11 Ohio St. 534. Pennsylvania: Johnson v. Phil- adelphia, 60 Pa. St. 445, 450. Texas: Ex parte Gregory, 20 Tex. Ct. App. 210, 221, 54 Am. Rep. 516. Wisconsin: State v. Heinemann, 80 Wis. 253, 27 Am. St. Rep. 34; 2 Cooley, Taxation, 1141. 42 California: In re Guerrero, 69 Cal. 88, 91, 10 Pac. 261. Indiana: Schmidt v. Indianapo- lis, 168 Ind. 631, 637, 80 N. E. 632. Missouri: Kansas City v. Crush, 151 Mo. 128, 52 S. W. 286. New Jersey: North Hudson Co. R. Co. V. Hoboken, 41 N. J. L. 71, 81. New York : New York v. Second Ave. R. Co., 32 N. Y. 261. 80 STATE LICENSE LAWS. § 85 While the license fee must not be imposed with a view to revenue,** all reasonable intendments must favor the fairness and justice of the fee fixed by the law-making body.** A license fee of two dollars, required to be paid upon the registration of an automobile, was held to be reasonable and proper.*^ Likewise, a fee of one dollar, was declared to be a reasonable exaction for a license to operate an automobile.*^ What is a reasonable fee must depend largely upon the sound discretion of the legislature, having reference to all the circumstances and necessities of the case. It will be presumed that the amount of the fee is reasonable unless the contrary appears upon the face of the law itself, or is established by proper evidence.*'' In determining whether a fee required for a license is ex- cessive, the absence or amount of regulatory provisions and the nature of the subject of regulation should be considered, and if the amount is wholly out of proportion to the expense involved, it will be declared a tax.** § 85. Fixing the amount of the fee. There is a large field for the exercise of discretion in determining the amount of the license fee. It must necessarily be prescribed in advance, 13 state T. Bean, 91 N. C. 554, Nebraska: Littlefield v. State, 559. 42 Neb. 223, 227, 60 N. W. 724, 28 a Coldwater v. Russell, 49 Mich. L. R. A. 588, 47 Am. St. Rep. 697. 617; Van Baalen v. People, 40 Pennsylvania: Oil City v. Oil Mich. 258. City Trust Co., 11 Pa. Co. Ct. 350, «Coin. V. Boyd, 188 Mass. 79, 352. ' 74 N. E. 255. Washington: Seattle v. Barto, *6Unwen v. State, 73 N. J. L. 31 Wash. 141, 147, 71 Pac. 735. 529, 64 Atl. 163, 68 Atl. 110. An ordinance imposing a license *7 Alaiama: Gamble v. Mont- fee of one dollar a year on each gomery, 147 Ala. 682, 39 So. 353. telephone pole erected in a city is Florida: Atkins v. Phillips, 26 not so unreasonable as to justify Fla. 281, 299, 8 So. 429, 10 L. R. A. the Court in interfering with the 158. discretion of the city council. Ches- Illinois: Spiegler v. Chicago, ter v. Western Union Tel. Co., 154 216 111. 114, 131, 74 N. B. 718. Pa. St. 464. Iowa: Iowa City v. Newell, 115 A license fee of fifty dollars a la. 55, 58. year imposed on itinerant physi- Maine: State v. Snowman, 94 clans is not per se unreasonable. Me. 99, 110, 46 Atl. 815, 50 L. R. A. Fairfield v. Shallenberger, 135 la. 544, 80 Am. St. Rep. 380. 615, 113 N. W. 459. Minnesota: Willis v. Standard *8Ex parte Braun, 141 Cal. 204, Oil Co., 50 Minn. 290, 52 N. W. 652. 206, 74 Pac. 780. 6 81 §86 LAW OF AUTOMOBILES. when it cannot be determined with accuracy (vhat the cost of regulation will be. In fixing the amount of the fee it is proper for the law-making body to take into account not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost by reason of the regulation and lieensrug of the vehicle, business or occupation.*^ The nature of the thing to be licensed has, of necessity, much to do with the amount of the fee. The amount of super- vision is a controlling element. The amount may, also, be graduated accordingly as the community is densely or sparse- ly populated.*" § 86. Revenue incidentally derived from license. While the power to tax is not included in the police power of a state,^! and any attempt to create revenue under the guise of police regulation will be declared invalid by the courts,*^ ^^^q f^et that the public treasury is incidentally augmented by the fee paid for an automobile license will not hainre the effect of making such license fee a tax.** The fee will not be declared illegal on this account if, under all the circumstances, it is not wholly unreasonable.** « Van Baalen v. People, 40 Mich. 258; Wysong v. Lebanon, 163 Ind. 132, 71 N. E. 194; Cooley, Taxa- tion, 1142. BO Van Hook v. Selma, 70 Ala. 361, 364, 45 Am. Rep. 85; Fayette- ville V. Carter, 52 Ark. 301, 302, 12 S. W. 573, 6 L. R. A. 509. 51 Terre Haute v. Kersey, 159 Ind. 300, 306. 52 Mugler V. Kansas, 123 U. S. 623, 661. 5s Indiana: Terre Haute v. Ker- sey, 159 Ind. 300, 306; Schmidt v. Indianapolis, 168 Ind. 631, 637, 80 N. E. 632. Maryland: Vansant v. Harlem Stage Co., 59 Md. 330, 335; State T. Rowe, 72 Md. 548, 553, 20 Atl. 179. Missouri: State ex rel. v. Hud- son, 78 Mo. 302. Nebraska: Littlefleld v. State, 42 Neb. 223, 228, 60 N. W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697. New Jersey: North Hudson Co. R. Co. V. Hoboken, 41 N. J. L. 71, 78. Ohio: Adler v. Whitbeck, 44 Ohio St. 539, 566, 9 N. B. 672; Ba- ker V. Cincinnati, 11 Ohio St. 534, 544; Marmet v. State, 45 Ohio St. 63, 68, 12 N. E. 463. Oregon: Ellis v. Frazier, 38 Oreg. 462, 467, 63 Pac. 642, 53 L. R A. 454. 5* Matthews v. Jensen, 21 Utah 207, 61 Pac. 303. "It does not follow because the license fee is large, or because it may become a part of the public revenue, that it is, therefore, a tax.". State ex rel. v. Hudson, 78 Mo. 302; State v. Hipp, 38 Ohio St. 225. 82 STATE LICENSE LAWS. § 87 That a license fee is called a tax and goes into the public treasury does not make it a tax.^^ And the fact that all license fees are paid into the school fund of the county in which they are assessed, and the cost of regulation is paid out of the general revenue raised by taxation, is of no conse- quence in determining the character of the fee.^* §87. Disposition of license fee. There are cases holding that where the law expressly directs that the license fee shall be used for purposes other than defraying the expenses of issuing the license and of regulation, that it thereby makes of the fee a tax, and converts what was intended to be a police measure into a revenue law.^'^ Thus it was declared that, an ordinance imposing a license fee on vehicles and pro- viding that the money so derived should be held as a special fund for improving the city streets, created a double tax, which rendered it invalid, the same vehicles having been taxed for general purposes, at their value, as personal prop- erty.'* Likewise, a statute which imposed a yearly charge of one dollar and twenty-five cents on every bicycle was held to be a tax for revenue, inasmuch as the larger part of such sum was directed by the law to be set aside as a fund for constructing and maintaining bicycle paths.^* But the better rule would seem to be that the disposition of the fee will not alone determine whether it is a license or a tax. What difference can it make if the fee charged for an automobile license is paid into the public treasury and the expenses of regulating the automobile paid out of the same general fund? Is it necessary in order that the fee retain its character as a license fee, to hold it in a special fund to be used only in defraying the expenses of regulating the automobile licensed? If, upon investigation, the fee is found to be only sufficient to pay the expenses that may rea- B5 Adler v. Whitbeck, 44 Ohio St. zier, 38 Oreg. 462, 468, 63 Pac. 642, 539, 566, 9 N. B. 672; Baker v. Cin- 53 L. R. A. 454. clnnati, 11 Ohio St. 534, 544. »8 Chicago v. Collins, 175 111. 445, 66 Littlefield v. State, 42 • Neb. 457, 459, 51 N. B. 907, 49 L. R. A. 223, 228, 60 N. W. 724, 28 L. R. A. 408, 67 Am. St. Rep. 224. 588*, 47 Am. St. Rep. 697. =» Ellis v. Frazier, 38 Greg. 462, 57 Chicago v. Collins, 175 111. 445, 468, 63 Pac. 642, 53 L. R. A. 454; 457, 51 N. B. 907, 49 L. R. A. 408, see also, Livingston v. Paducah, 80 67 Am. St. Rep. 224; Livingston v. Ky. 656. Paducah, 80 Ky. 656; Ellis v. Fra- 83 § 88 LAW OP AUTOMOBILES. sonably be presumed to arise in the supervision and regula- tion of the automobile licensed, its disposition should not have the effect of converting it into a tax.** Eeferring to an ordinance the title of which stated its purpose to be to levy and collect an annual license tax "for general revenue purposes," the Court said: "It is probably true that this does not determine the real character of the taxes imposed, but it will aid us somewhat in knowing what the purpose of the legislative body was in passing the ordi- nance, and may assist us in determining the purposes as pro- vided by the ordinance itself."*^ "Where a city was empowered to impose a license tax on automobiles for revenue purposes, the fact that the ordinance levying such license tax provided that "All revenues de- rived from such license fees shall be kept as a separate fund and used only for paying the cost and expenses of street and alley improvement and repair," was held not to render the ordinance unconstitutional as creating a double tax.*^ §88. License fee not a tax on automobiles. The fee which is required by law to be paid to some designated state official upon the registering of an automobile and the issuing of a license, if reasonable ia amount, is not a tax on property, but a license fee, and its exaction to cover the reasonable expenses of regulation is valid. Such legislation falls within the police power of the state.** A fee of one dollar required by a state law to be paid when an automobile is registered was declared to be a license fee paid for the privilege of running the machine on the high- ways.** It was held that an ordinance requiring automobiles to be registered and a number displayed at a cost of one dollar to cover the value of the figures furnished by the city to form the number is not objectionable on the ground that it im- 60 state ex rel. v. Hudson, 78 74 N. B. 255; People v. Schneider, Mo. 302. 139 Mich. 673, 677, 103 N. W. 172, 61 Titusvllle V. Gahan, 34 Pa. 69 L. R. A. 345, 12 Detroit Leg. N. Super. Ct. 613, 615, 624. 32; Unwen v. State, 73 N. J. L. 62 Harder's Storage Co. v. Chi- 529, 64 Atl. 163, 68 Atl. 110.' cago, 235 111. 58, 85 N. B. 245. 64 Unwen v. State, 73 N. J. L. 63 Com. V. Boyd, 188 Mass. 79, 80, 529, 64 Atl. 163, 68 Atl. 110. 84 STATE LICENSE LAWS. §§ 89-90 poses a license tax, as the amount paid is clearly a license fee."^ A registration fee of two dollars was declared to be a license fee and not a tax.^^ § 89. Coimty license — Necessary in every county. A license cannot be of any force or eflEect outside of tlie jurisdictioil of the officer who issues it. If issued by a state officer, unless expressly limited in its application, it is effective through- out the state, but when issued by a city officer it affords no protection beyond the corporate limits of the city. Thus, where a state law required that every person desiring to oper- ate an automobile to "obtain a license from the license com- missioner, if in a city having such commissioner, or if desired to operate the same in any county outside the corporate limits of any such city, or any of the public highways, streets or roads of this state, shall obtain a license from the county clerk of such county," it was held that an owner or operator of an automobile must take out a license in every county over whose roads he may desire to run his machine.®'' § 90. Mandamus to compel issuance of license. Where the law allows the licensing officer no discretion, but provides for the issuance of a license upon the applicant complying with all the provisions of the law relating thereto, the officer may be compelled by mandamus to issue the license.®* But the applicant must have complied with the law in every particular to be entitled to a writ of mandamus, because the writ will be issued only where there is a clear legal right, and until he has complied with the law he has no right to a license.®® The writ will not be granted if the law places the issuance of the license within the discretion of the license officer.''® 65 People v. Schneider, 139 Mich. 325, 332 ; People v. Metz, 123 N. Y. 673, 677, 103 N. W. 172, 69 L. R. App. Div. 269, 107 N. Y. Supp. 970; A. 345, 12 Detroit Leg. N. 32. Matter of O'Rourke, 9 N. Y. Misc. 66 Com. v. Boyd, 188 Mass. 79, 80, 564, 30 N. Y. Supp. 375; People v. 74 N. B. 255. Perry, 13 Barh. (N. Y.) 206. 67 State V. Cohh, 113 Mo. App. 69 state ex rel. v. Mcintosh, 205 156, 160, 87 S. W. 551. Mo. 589, 610, 103 S. W. 1078; Ros- es People V. Busse, 231 111. 251, enkrans v. State Board, — R. I. 255, 83 N. E. 175; State ex rel. v. — (1907), 67 Atl. 367. Turner, 210 Mo. 77, 107 S. W. 1064; to Harrison v. People, 101 111. St. Louis V. Meyrose Lamp Mfg. App. 224; People v. Wurster, 14 Co., 139 Mo. 560, 41 S. W. 244; N. Y. App. Div. 556, 43 N. Y. Supp. State ex rel. v. Ruark, 34 Mo. App. 1088; People v. Grant, 58 Hun (N. 85 § 90 LAW OF AUTOMOBILES. It has been held that where one has complied with a statute or ordinance providing for the licensing of a business or occupation, he will be protected in carrying on such business or occupation, though the license, through no fault of his, has not been issued. This is on the theory that the law itself is the authority to carry on the business or occupation, the license certificate being only evidence of the licenseJ^ Y.) 455, 12 N. Y. Supp. 879; State 334, 339; Fossett v. Rock Island L. V. Hagood, 30 S. C. 519, 9 S. E. & M. Co., 76 Kan. 428, 431. 92 Pac. 686, 3 L. R. A. 841; Williams v. 833. Dental Examiners, 93 Tenn. (9 But see contra. Phoenix Carpet Pickle) 619, 27 S. W. 1019. Co. v. State, 118 Ala. 143, 22 So. "Prather v. People, 85 111. 36; 627, 72 Am. St. Rep. 143. Zanone v. Mound City, 11 111. App. 86 CHAPTEK VI. MUNICIPAL OR LOCAL LICENSE LAWS. 91. Power of municipal corpora- tion to impose license. 92. Construction of the power to license and tax. 93. Distinction between power to license and power to tax. 94. Same — Power to license does not imply the power to tax. 95. Power to regulate includes the power to license. 96. Power to license and regu- late implies power to charge a license fee. § 97. Amount of license fee. 98. Same; unreasonable fee; il- lustrations. 99. Power to license or regulate does not imply power to prohibit. 100. License fee not a tax on au- tomobiles. 101. License from both state and city. 102. Uniform rate of taxation. 103. Classification of subjects of license. 104. Unreasonable searches and seizures. § 91. Power of municipal corporation to impose license. A municipal corporation has no inherent power to license occu- pations 'or callings, or to exact a license fee from any person.^ It must derive all its authority in this regard from the state, and the power must come by direct grant and cannot be taken by implication.^ Aside from any constitutional inhibition the Legislature may delegate to a municipal corporation the power to license vehicles, businesses and occupations, and to require the pay- ment of a fee therefor.* 1 Chicago V. Banker, 112 111. App. 94, 97; Matthews v. Jensen, 21 Utah 207, 61 Pac. 303. 2 2 Cooley, Taxation, 1138; Mat- thews V. Jensen, 21 Utah 207, 61 Pac. 303. a Arkansas : Little Rock v. Pra- ther, 46 Ark. 471. Kentucky: Com. v. Pearl Laun- dry Co., 105 Ky. 259, 263, 20 Ky. L. Rep. 1172, 49 S. W. 26. Massachusetts: Boston v. Schaf- fer, 9 Pick. 415, 419. Minnesota: Moore v. Minneapo- lis, 43 Minn. 418, 45 N. W. 719. Missouri: American Union Ex- press Co. V. St. Joseph, 66 Mo. 675, 680, 27 Am. Rep. 382. New York: People v. Sewer Commission, 90 N. Y. App. Div. 555, 557, 86 N. Y. Supp. 445. North Carolina: State v. Irvin, 126 N. C. 989, 35 S. E. 430. Pennsylvania: Butler's Appeal, 73 Pa. St. 448, 451. Virginia: Gordon Brothers v. 87 § 92 LAW OF AUTOMOBILES. "The power of the state to authorize the license of all classes of trades and employments cannot be doubted. And there is just as little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regulation."* The Legislature may empower municipal- ities to impose a license or license tax on owners of vehicles for using the same on the public streets,^ and it may authorize a license fee to be imposed on automobiles solely for revenue purposes.^ §92. Construction of the power to license and tax. The power of a municipal corporation to license a business or occupation, or exact a license fee from any person, must be expressly granted by its charter, or it must be a necessary incident to the carrying out of a power so granted.^ The authority of a municipal corporation generally to impose a tax or exact a license must be strictly construed.* And, likewise, the power to impose a license tax on automobiles for the purpose of raising revenue for the maintenance and repair of the streets is to be strictly construed.^ And where a city's charter enumerates certain powers it is to be con- strued as excluding all others.^" A grant of power, made before automobiles were known, to Newport News, 102 Va. 649, 47 S. Ohio: Marmet v. State, 45 Ohio B. 828. St. 63, 12 N. E. 463. Washington: Fleetwood v. Read, Pennsylvania: Bennett v. Birm- 21 Wash. 547, 58 Pac. 665, 47 L. R. ingham, 31 Pa. St. 15; Chess v. A. 205. Birmingham, 1 Grant Gas. 438. * Van Hoolc v. Selma, 70 Ala. 361, <= Harder's Storage Co. v. Chl- 363, 45 Am. Rep. 85. cago, 235 111. 58, 85 N. E. 245. ^Illinois: Gartside v. East St. ^Chicago v. Banker, 112 111. App. Louis, 43 111. 47. ^^' ^'^■ maiana: Terre Haute v. Ker- J."^''' T' S^^',^^"' 37' J."" ?''' Chicago V. Banker, 112 111. App. 94, 97; Decambre v. Clere, 34 La. Ann. 1050; Com. v. Stodder, 2 Cush. (Mass.) 562; Matthews v. Kentucky: Smith v. Louisville, j^^^^^^ gl Utah 207, 218, 61 Pac. sey, 159 Ind. 300, 310, 64 N. B. 469; Tomlinson v. Indianapolis, 144 Ind. 142, 36 L. R. A. 413. 9 Ky. L. Rep. 779, 6 S. W. 911. 303. Missouri: St. Louis v. Green, 7 » Terre Haute v. Kersey, 159 Mo. App. 468, 70 Mo. 562. ind. 300, 307, 64 N. E. 469. New Jersey: State v. Mayor, 58 i" Chicago v. Banker, 112 111. N. J. L. 604, 33 Atl. 850; Haynes v. App. 94, 98; Kiel v. Chicago, 176 Cape May, 52 N. J. L. 180. 111. 137. 88 LOCAL LICENSE LAWS. § 93 a municipal corporation to require the proprietors of "hacks, cabs, omnibuses and other vehicles for transporting passen- gers for hire" to pay an annual license, was held not to include the automobile. It was said in that case that auto- mobiles were unknown to, and certainly not within the con- templation of the authors of the act at the time of its passage. The terms "other vehicles," mentioned in the act, were mani- festly intended to embrace only such other vehicles as were ejusdem generis. It was not intended to include every con- ceivable vehicle that might thereafter be invented and brought into use.ii Under power to "regulate the use of coaches, hacks, drays and other vehicles for the transportation of passengers, freight," etc., within the city for hire; "to levy and collect a specific tax on omnibuses, or other carriages and other vehicles used and run for passengers for hire, unless the same be licensed"; and "to license, tax and regulate vehicles"; and under power of exclusive control of its streets, a city was held to be empowered to impose a license tax on automobiles for the use of its streets, including private vehicles, for the purpose of creating a revenue for the maintenance and repair of its streets.^ 2 A grant of power "to regulate and license all cars, wagons, drays, coaches, omnibuses, and every description of car- riages," was held to authorize a city to impose a license fee on all automobiles operating on its streets. The phrase "every description of carriages" was said to include automobiles, al- though they were unknown at the time of the passage of the law.^^ § 93. Distinction between power to license and, power to tax. The power to license and the power to impose a tax on automobiles are essentially different and distinct. They 11 Washington Electric Vehicle 387; United States v. Wiggles- Transp. Co. v. District of Colum- worth, 2 Story Rep. (U. S.) 369; bia, 19 App. Cas. (D. C.) 462. Sewall v. Jones, 9 Pick. (Mass.) Duties are never imposed upon 412. citizens upon doubtful interpreta- i2Terre Haute v. Kersey, 159 tion, for every duty imposes a bur- Ind. 300, 307, 312, 64 N. B. 469. den upon the public at large, and is Com. v. Hawkins, 14 Pa. Dist. is construed strictly. Adams v. 592. Bancroft, 3 Sumn. (U. S.) 384, 89 § 94 LAW OF AUTOMOBILES. may be unitedly exercised, if such appears to be the legisla- tive will, but between them there is no necessary or legal connection.!* The power to tax is for the purpose of raising revenue, while the power to license is granted for the pur- pose of regulation, or as an incident or means thereto.^^ The distinction between the power to license, as a means of regulation, and the same power when conferred for revenue purposes, is of the utmost importance, for if the power be granted with a view to revenue, the amount of the tax, if not limited by the charter, is left to the discretion and judg- ment of the municipal authorities; but if it is given as a police power for regulation merely, a much narrower con- struction is adopted; the power must then be exercised as a means of regulation, and cannot be used as a source of reve- nue.*^ And when a power to license is given a municipal corporation the presumption is that it is for the purpose of regulation merely, unless there is something in the grant, or the circumstances attending, which indicates that it was made for the purpose of revenue.^^ § 94. Same — Power to license does not imply the power to ta>x. It is well established that a grant of power to a munici- pal corporation to license a business, occupation or calling does not include the power to impose a tax.^* The power 1* Muhlenbrinck v. Long Branch St. Rep. 447; State v. Smith, 31 Com'rs, 42 N. J. L. 364, 367; Free- la. 493. holders