Kelly v. James

157 N.W. 990 | S.D. | 1916

GATES, J.

The sole question presented upon Ais appeal is whether section 20, c. 276, Laws1 1913, had the effect of annulling a section of an ordinance of the -city of Plankin-ton, which provided :

“Every person driving -or operating any such vehicle [motor or animal drawn] on any street in this city-shall keep to the -right hand side of such street and as close as possible to the curb and shall stop the same only on the side of such street to the right 'hand'of such driver.”

On December 20, 1913, between 6 and 7 o’clock p. m., respondent was driving a horse and buggy west on Third street, but was on the -south -side of the -center of the street. Appellant was driving an automobile north on- an intersecting street and turned' into Third street and collided with respondent a short distance east of .the intersection'. The question involved is raised by assignments of error challenging instructions given and refused.

The gist of said -section 20, c. 276, Laws 1913, as applied to this case is as follows (the paragraphing: •being'’ ours) :

“Except as herein -provided', local authorities shall have no power to pass, enforce, or -maintain any ordinance, rule, or regulation- : ' •

“(a) Requiring [from] any -owner to whom this act is applicable any fee, license or permit for the u-s-e of the public highways, or “(b) excluding any such owner from the free use of such public highways * * * or

“(c) in any other way regulating -motor vehicles or their speed upon or use of the public highways;

“(d) and- no- ordinance, rule or regulation contrary or in any wise 'inconsistent with the provisions of -this act, now in force or hereinafter [hereafter] enacted, shall have any eff-ect.”

The section -then specifies certain exceptions which are unimportant in the determination of this case.

It is the theory of appellant that respondent was negligent -in driving upon the wrong side of the street, and t-hat he was -prejudiced -by -having the- city ordinance excluded from th-e consideration of the jury. It is the theory -of respondent that th-e ordinance was. made -of no effect so far as> motor vehicles are -concern ed by the express words of the statute; that to eliminate motor vehicles from the application -of the ordinance would completely -defeat its purpose because .it would then be -an, unreasonable regulation if not -cla-ss legislation. Hence the contention is that the whole of the ordinance quoted was annulled by the: statute, and therefore that respondent was not negligent in -driving west on the south side of Third street. If respondent’s contention' is sound, -the motor vehicle law has shorn a vast amount of supposed power from municipal corporations granted by a number of the subdivisions of section 1229-, Pol. Code. The question then is: Was the ordinance “contrary or in any wise 'inconsistent with th-e provisions of” the -motor vehicle law? We think -the question must -be answered in the negative.

By comparing chapter 276, Laws 1913, with chapter 72, Laws of Iowa 1911 (-Code Supp. I-owa 1913, '§ 157111120), it will be observed that the two acts are practically identical. The Supreme Court of Iowa in Pugh v. City of Des Moines (Iowa) 156 N. W. 892, has very recently construed section 21 of the Iowa act (our section 20) 'and its relation to an ordinance of the city of Des Moines which provided that no person should “leave standing’” for more than 20 minutes any vehicle on certain designated streets between certain hours of the day. There as here it was contended that the ordinance violated the statute. In that decision the court said1:

“The plaintiff’s contention, when reduced to its last analysis, is that, under this act of the Legislature, all automobile owners and drivers are given full license to stop their cars upon the pub-lie streets when and where they please and for such a length of time as suits their pleasure and convenience, and to. leave them standing there, though to the great prejudice and inconvenience of the general public desiring toi use the streets for their primary purposes: and .the city whose duty it is to- keep the streets open and free from nuisance, is rendered as 'helpless as the shackled prisoner at the bar. The mere 'statement of the proposition is its own answer. Conceding for the purpose of the argument that the Legislature has given to the automobile driver the free use of the public streets, and that the city has no power to' exclude from the free use of the public streets, we must construe this language to mean that free use which, is involved in the right to come and go' and drive upon the streets without let or hindrance. The idea of the free use of a street does not involve the right to obstruct the free use of the street. If one man, in the exercise of his right to the free use of the street, can stable his automobile upon the public street and leave it standing there, any number of persons can exercise the same right, until a point is reached where the travel upon the street is absolutely obstructed. Each, under plaintiff’s contention, would ■be exercising his right to the free use of the street.”

] 1 [ If a city is powerless to regulate traffic -by enacting and enforcing a law of the road, then all vehicles may move in any direction on either side of the street or they may zigzag. The liberty of A. to do this is not greater than the liberty of B., .C., or D. to do the same. In, a busy street one or two persons m the exercise of this “liberty” might absolutely suspend traffic indefinitely. Such is not the definition of “liberty.” As applied to this case liberty is properly defined in the language of Mr. Justice Field as:

“Freedom from restraint -under conditions essential to the equal enjoyment of the same right by others,’ Crowley v. Christenson, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. Ed. 620, 25 Cyc. 590.

“Liberty does not mean license but freedom regulated by law.” State v. Powell, 58 Ohio St. 324, 50 N. E. 900, 41 L. R. A. «54-

[2] We are of the opinion that the Legislature, in enacting the motor vehicle law, -did not intend' to deprive municipalities of the .power to eixact ordinances in relation to- the law of the road. We are of the opinion that the clauses “free -use of such public highways” and “regulating motor vehicles o-r their * * * use of the public highways” contained in section 20, supra, were not intended1 to give any greater privileges' to drivers- of motor vehicles than were enjoyed by drivers of all vehicles. We are of the- opinion that these -clauses -did aim to prevent municipalities from singling -out motor vehicles and legislating against -them in particular.

The ordinance then being valid appellant was entitled to have its relation to- the -cause of the accident -considered by the jury, and its exclusion was cl-early prejudicial error.

For this reason the judgment and -order appealed from are ’-«•versed, and the cause is -remanded for a new- -trial.