Summary
In Schneiderman, we struck down a city ordinance setting a speed limit at 15 m.p.h., a speed below the statewide limit of 25 m.p.h.
Summary of this case from Mendenhall v. City of AkronOpinion
No. 21290
Decided May 29, 1929.
Negligence — Municipal speed ordinance, conflicting with statute, invalid — Speed exceeding 15 miles per hour unlawful, regardless of reasonableness and traffic — Sections 12603 and 12608, General Code — Evidence — Witness testifying to facts cannot be discredited by his opinion on merits.
1. An ordinance of a municipality which prescribes a manner of driving or a rate of speed of automobiles in conflict with the provisions of the statute is invalid.
2. The provision of an ordinance of a municipality which makes unlawful a rate of speed exceeding fifteen miles per hour, regardless of whether such speed is greater than reasonable and proper, considering the width, traffic, use and the general and usual rules of such road or highway, is in conflict with Section 12603, General Code, and therefore invalid.
3. A witness who testifies as to facts cannot be discredited by evidence of the expression of an opinion relative to the merits of the case.
EREOR to the Court of Appeals of Summit county.
This action was instituted in the court of common pleas of Summit county to recover damages for personal injuries claimed to have been sustained by plaintiff, Goldie Schneiderman, an infant, as a result of the negligence of the defendant, Barbara Sesanstein.
It was charged that the defendant operated her automobile in a carelses and negligent manner, driving same at an excessive rate of speed, in violation of an ordinance of the city of Akron and of the law of the state, and that, while passing a public school building in the city of Akron, her automobile struck plaintiff, a girl about ten years of age, as she was crossing the street in the vicinity of said school.
During the trial an ordinance of the city of Akron offered in evidence was excluded by the trial court, the pertinent provisions of which ordinance are as follows:
"Section 154-49. Upon approaching within two hundred (200) feet of or in passing a school on school days between the hours of eight (8) o'clock in the morning and four (4) o'clock in the afternoon, or upon approaching within two hundred (200) feet of or in passing any public playground between the hours of eight (8) o'clock a. m. and seven (7) o'clock p. m. on any day during which such playground is open and in use, the person operating any vehicle shall not proceed nor shall the owner of any such vehicle thereon or therein cause or permit the same to proceed at a rate of speed greater than fifteen (15) miles per hour."
The trial of the case resulted in a verdict for the defendant, upon which judgment was rendered in the court of common pleas and affirmed by the Court of Appeals; and thereafter, upon motion being granted, the case was certified to this court.
Messrs. Rockwell Grant, for plaintiff in error.
Messrs. Mather, Nesbitt Willkie, for defendant in error.
The first and chief assignment of error urged by plaintiff in error is based upon the refusal of the trial court to receive in evidence the ordinance of the city of Akron, which refusal was based upon the ground that its provisions are in conflict with the provisions of Section 12603, General Code of Ohio.
Although, as stated by the Court of Appeals, with a single exception all of the witnesses who testified as to the speed of defendant's automobile were of the opinion that it was not in excess of 15 miles per hour, the evidence of the one witness who testified that the speed was greater was competent, its weight being for the jury, and would require the submission of the ordinance, if the same were valid. The importance of the question thus presented is manifest, for, if such ordinance is valid, and was violated by the defendant, then her act constituted negligence per se, and it would have been the duty of the court to so instruct the jury.
The claimed invalidity of the ordinance in question is based upon its conflict with general law. It is a police regulation, such as municipalities are authorized to adopt and enforce under authority of Section 3, Article XVIII, of the Constitution of the state. The police power thus conferred by the Constitution cannot be denied municipalities by statute, but that power is restricted, in that such "local police, sanitary and other similar regulations" must not be "in conflict with general laws." Thus the legislative branch of the state government enacts laws to safeguard the peace, health, morals, and safety, and to protect the property of the people of the state, and these are the general laws referred to. They apply to all parts of the state alike. Municipalities may adopt and enforce local regulations covering the same subject so long and so far as the same are not in conflict with general laws. That was clearly determined in City of Fremont v. Keating, 96 Ohio St. 468, 118 N.E. 114. However, the ordinance there in question was in no wise in conflict with general laws; the speed regulations there prescribed being the same as those of the statute.
To the same effect is the decision of this court in Stange v. City of Cleveland, 94 Ohio St. 377, at page 381, 114 N.E. 261, 262, where a local police regulation upon a subject not legislated upon by the state was held valid, but, as there stated, "if, after the statute became effective, the ordinance should conflict in any wise with it, the ordinance of course must yield." So, also, in Niehaus, Bldg. Insp., v. State, ex rel. Board of Education, 111 Ohio St. 47, 144 N.E. 433, where the city of Dayton by ordinance sought to exact a fee for the inspection and approval of plans for public school buildings in the absence of any provision by statute authorizing the exaction of a fee for the performance of a duty imposed thereby, this court held the local regulation in conflict with general law and invalid.
Likewise, in the very recent cases of City of Bucyrus v. Department of Health, 120 Ohio St. 426, 166 N.E. 370, and State, ex rel. Neal, Dir. of Health, v. Williams, Mayor, 120 Ohio St. 432, 166 N.E. 377, it was held that the state by general law has full and complete power in respect to sanitation, that power being unaffected by Article XVIII of the Constitution, for, thereunder, municipalities have only such power as to local sanitary regulations as are not in conflict with general laws enacted by the Legislature. In every similar case where the validity of local police, sanitary, or similar regulations has been sustained, it has been upon the ground of want of conflict with general laws. Greenburg v. City of Cleveland, 98 Ohio St. 282, 120 N.E. 829; City of East Liverpool v. Dawson, 101 Ohio St. 527, 130 N.E. 936; Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519.
The following statement found at page 386 of the opinion in the case of Froelich v. City of Cleveland, 99 Ohio St. 376, 124 N.E. 212, 215, is quite pertinent, and though, of course, not controlling, is persuasive: "When the state passes a law which prevents the running of an automobile upon highways faster than at a certain rate, and in the business and closely built-up portions of a city faster than at a certain lesser rate, that is a regulation for the protection of the lives of the people of the whole state and has no special relation to any of the political subdivisions of the state. Such a law applies upon all streets without reference to the character of the street or its structure, except as prescribed by the law itself."
General laws have been enacted regulating the manner of driving, and particularly the speed of automobiles upon the roads and highways of the state. These laws are safety regulations enacted in the interest of, and for the protection of, the public, and they definitely fix and prescribe the standard of care that must be exercised in the operation of automobiles throughout the state. They are as follows:
Sec. 12603. "Whoever operates a motor vehicle in and upon the public roads or highways at a speed greater than is reasonable and proper having regard for the width, traffic, use and the general and usual rules of such road or highway, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided. A rate of speed greater than fifteen miles an hour in the business or closely built-up portions of a municipal corporation or more than twenty-five miles an hour in other portions thereof, or more than thirty-five miles an hour outside of a municipal corporation, shall be prima facie evidence of a rate of speed greater than is reasonable and proper."
Sec. 12603-1. "Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided."
Sec. 12608. "The provisions of section twelve thousand six hundred and three shall not be diminished, restricted or prohibited by an ordinance, rule or regulation of a municipality or other public authority."
In determining whether the provisions of the ordinance in question conflict with the general law covering the same subject, a proper test may be applied by the inquiry: Does the ordinance prohibit an act which the statute permits, or permit an act which the statute prohibits? Village of Struthers v. Sokol, supra.
When the law of the state provides that a rate of speed greater than a rate therein specified shall be unlawful, it is equivalent to stating that driving at a less rate of speed shall not be a violation of law; and therefore an ordinance of a municipality which attempts to make unlawful a rate of speed which the state by general law has stamped as lawful would be in conflict therewith. If such conflict does not appear from the mere fact that the ordinance has assumed to prohibit a rate of speed less than that prohibited by statute, and therefore permitted thereby, the consideration of Section 12608, General Code, in connection with Section 12603, General Code, will leave no doubt upon that subject.
The statute does not attempt to deprive municipalities of any power conferred by the Constitution. Its enactment is pursuant to the sovereign police power, with which the regulations adopted by municipalities must conform, under the express and specific terms of limitation imposed upon the power delegated. The legislative intent and purpose is clearly manifest in the statute when it declares that "the provisions of section twelve thousand six hundred and three shall not be diminished, restricted or prohibited by an ordinance, rule or regulation of a municipality or other public authority." Thus it is clearly and conclusively provided that any rate of speed other than that expressly prohibited must be regarded as permitted. It surely would be absurd to claim that an ordinance which attempted to prohibit an act which a statute has thus declared shall not be prohibited is in harmony with such statute. A local regulation certainly is in conflict with a general law covering the same subject if it attempts to prohibit that which the statute has expressly provided shall not be "diminished, restricted or prohibited." It is not the province of the court to formulate or declare a policy. We are dealing only with a question of power. The standard of conduct prescribed by statute is that the speed shall not be greater than reasonable and proper, considering the conditions and circumstances there enumerated, and that is the test that must be applied under the statute. The conditions of traffic may be such as to require a much less speed than 15 miles an hour to meet the requirement that the speed shall not be greater than is reasonable and proper. On the other hand, a given speed may be well within the requirement of statute, though somewhat in excess of the rate arbitrarily fixed by ordinance. In this case it does not appear that the alleged injury occurred in the business or closely built-up portion of the city, and, if not, then under the statute a rate of speed must be greater than 25 miles an hour to be even prima facie evidence of a speed greater than is reasonable and proper. The legislative body of the municipality has no authority to prescribe a rate of speed or fix or prescribe a standard contrary to or inconsistent with the provisions of statute.
The following cases, among others, supporting our conclusion as to conflict of ordinance and statute are cited: Mendel v. Dorman, 202 Ky. 29, 258 S.W. 936; Hoigard v. Yellow Cab Co., 320 Ill. 317, 150 N.E. 911; State v. Stallings, 189 N.C. 104, 126 S.E. 187; Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R., 1172. In the case last cited it was held: "In this case the petitioner had a right to drive on the highway at a speed that was reasonable and proper under all the circumstances, and the fixing of an arbitrary speed limit by the city authorities restricted that right and was, therefore, in conflict with that right." Practically the same proposition was presented in that case as is before the court in the instant case. The Constitution of the state of California conferred upon cities the power to pass local regulations not in conflict with general laws. The statute under consideration in the Daniels case, supra, prohibited traveling at an unsafe rate of speed, but in no case in excess of a certain maximum, and then expressly prohibited municipalities from fixing as a maximum a lower rate of speed. The court held that thus was the intention of the Legislature clearly manifested "to declare that the limitation upon speed fixed in the law shall be the only limitation controlling the conduct of the driver of a motor vehicle upon the streets and highways of the state." It is stated by Wilbur, J., in the majority opinion, that "It seems to have been the legislative purpose, by the declaration that 'the limitations as to the rate of speed herein fixed shall be exclusive of all other limitations,' to authorize vehicles to travel at those limits within cities and counties."
The discussion of the concurring opinion is also pertinent and persuasive: "Cities and counties have the right given them by the Constitution to pass local regulations not in conflict with the state law, and this right the Legislature cannot prohibit them from exercising. But the prohibition here involved is not to be viewed solely as a prohibition upon counties and municipalities. It is a prohibition designed for the regulation of the speed of those traveling the highways, and clearly designed for the purpose of permitting such parties to travel subject only to the regulations as to rate of speed provided by the state law. Putting it in another way, if the state law had read that a man traveling the highway should not exceed a certain speed, but should have the right to travel up to that speed, provided it was not unsafe for him to do so under the immediate surrounding conditions, there would have been no prohibition on counties and municipalities involved, and no question as to the validity of such prohibition would have arisen. Nevertheless, any local ordinance fixing a lesser maximum would be invalid, as plainly in conflict with the provision of the state law authorizing any speed not unsafe up to the maximum fixed by it. Now, the only difference between such a reading of the state law and its actual reading is that the permission to travel at any speed, not unsafe, up to the maximum fixed, instead of being couched in the affirmative, is put in the negative. The traveler is told, you may not travel at an unsafe speed and you may not exceed a certain speed — safe or unsafe — but any other limitation upon you is prohibited. This can mean but one thing, and that is that the traveler is authorized to travel at any rate of speed he desires, provided he does not travel at an unsafe rate or exceed the limit fixed. It is merely putting in a negative and roundabout way what could better have been said directly and affirmatively. With such a law a city ordinance fixing another and a lower limit is plainly in conflict."
It was the legislative purpose, clearly manifested by the provisions of Sections 12603 and 12608, General Code, to permit vehicles to travel upon the streets and highways of the state at any rate of speed not expressly prohibited by statute. Any ordinance which prohibits that which is thus clearly permitted by statute is in conflict therewith, and therefore invalid.
In dealing with the manner of submission of the issue as to speed to the jury, it was further stated in the Daniels case, supra: "The question of whether or not the speed traveled is unreasonable and unsafe is a matter for the consideration of the jury, and the scheme of the Legislature authorizes the submission of this question to a jury. * * * The effect of a local ordinance is to foreclose the question of the reasonableness of the speed, and to substitute the judgment of the local legislative body for the judgment of a jury. It is evident that the two plans are in direct conflict and that the conflict is a very material one."
In the case at bar the court was required to adopt the alternative of submitting the provisions of the ordinance arbitrarily fixing a speed limit of 15 miles an hour, and of instructing the jury that violation thereof constitutes negligence per se, or of refusing to submit such ordinance and applying the provisions of the statute and instructing the jury that under those provisions it should determine from the evidence whether the defendant was driving her automobile at a speed greater than was reasonable and proper. The trial court chose the latter alternative, and fully and properly instructed the jury relative to the requirements of the statute and the effect of a violation of its provisions, and in that respect the court committed no error.
A further assignment of error alleged is the claimed undue limitation of cross-examination of the witness Greenfield. This witness observed the accident, and upon direct examination testified relative to the occurrence, and also with reference to the speed of the defendant's automobile, which was just ahead of the truck being driven by the witness. In the course of the cross-examination, counsel for the plaintiff asked the witness whether in a conversation with counsel the witness had not previously made certain statements to him which were in effect that the defendant was at fault. A mere conclusion or opinion of the witness was sought, which was not competent either upon direct or cross-examination. An inquiry is incompetent which seeks the opinion of the witness upon the ultimate question involved in the case, in this instance the very issue to be submitted to and determined by the jury. Further, the statements which counsel's questions assumed had been made by the witness were in no wise contradictory to his testimony on direct examination, nor were they competent for the purpose of impeachment. The rule applicable is thus stated in 40 Cyc., 2712: "A witness who gives opinion evidence may be discredited by showing that he has expressed an opinion inconsistent with that expressed by him on the stand; but a witness who testifies as to facts cannot be discredited by a showing of prior expression of opinion by him, even though such expressions tend to contradict the inference which might be drawn from his recital of facts, or are wholly inconsistent with the facts testified to."
The only other claimed error which need be referred to is the portion of the general charge of the court wherein Section 6310-34, General Code, was cited and commented upon. Under the facts disclosed by the record, the provisions of this statute are of doubtful application, and, the court having fully and properly defined the duty of the plaintiff in respect to the exercise of ordinary care, it is difficult to see how a reference to such statute could in any wise be prejudicial to the plaintiff.
It follows that the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
KINKADE, ROBINSON and JONES, JJ., concur.
I dissent from the decision of the majority herein upon the ground that it is in conflict with the weight of authority in the United States. Also in my judgment the ordinance in question does not conflict with the statute, and, furthermore, the regulation of the speed of traffic upon the streets of a municipality is an exercise of the power of local self-government, and hence the decision in this case contravenes the express provision of Section 3 of Article XVIII of the Constitution that municipalities shall have all powers of local self-government.
The decision runs counter to the weight of authority in the United States, as shown by the decisions cited in 1 Berry on Automobiles (6th Ed.), page 74 et seq.; 1 Blashfield's Cyclopedia of Automobile Law, 223-239.
The ordinance does not conflict with the statute. The two enactments differ, but they do not conflict. The ordinance makes it unlawful to exceed the speed of 15 miles in passing a schoolhouse or public playground. The statute imposes no such limit, and, in fact, makes no regulation with regard to the speed of automobiles in passing a schoolhouse or public playground. The conditions around such institutions at the time specified in the ordinance, namely, school hours and hours during which public playgrounds are used, immediately suggest the reasonableness and the wisdom of the policy stated in the ordinance. On the face of its provisions, so far as applying a specific speed limit to the vicinity of such institutions is concerned, the ordinance is merely carrying out and making more specific the provisions of the statute prohibiting reckless driving.
The statute provides that a speed of greater than 25 miles an hour within portions of a municipal corporation other than the business or closely built-up portions shall be prima facie evidence of a rate of speed that is greater than is reasonable or proper. This court has laid down the test of conflict between an ordinance and a statute as follows: Does the ordinance prohibit an act which the statute permits, or permit an act which the statute prohibits? Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519. Certainly the statute does not expressly permit driving at a rate of speed greater than 15 miles per hour past a schoolhouse or public playground during the hours of their use. The statute contains only an indefinite provision as to speed limit. Instead of imposing a positive speed limit, it, by inference from the provision as to prima facie evidence, allows a rate of speed not in excess of a certain number of miles, if such rate is not negligent or reckless. The gist of the statute is that part of the provision which prohibits and penalizes reckless driving. The ordinance does contain a provision as to speed lower than that inferentially established by the statute. This statutory speed, however, is necessarily limited by the provision as to reckless driving. The statute in none of its phrases authorizes the defendant in this case, or any other person, to drive at the rate of 15 miles within the city of Akron, even outside of the closely built-up portions thereof, everywhere, in all places, and under all conditions. The statute itself contemplates a lower rate than 25 miles and a lower rate even than 15 miles in certain places and under certain conditions, which are not in detail described. The ordinance simply defines one of the circumstances under which this lower rate contemplated by the statute shall apply within the city of Akron, and is therefore not in conflict therewith. Certainly it does not permit an act which the statute prohibits, and neither does it prohibit an act which the statute permits. In fact, the ordinance supplements the statute. It aids in the enforcement of the general purpose of the statute as to reckless driving, which restricts the provision as to a rate of speed not in excess of a definite number of miles.
Holdings along this line are to be found in a great number of cases from courts of last resort in the United States, a few of which I shall quote.
In Brazier v. Philadelphia (1906), 215 Pa. 297, 64 A. 508, 7 Ann. Cas., 548, an ordinance which provided that no person should drive a motor vehicle at a rate of speed greater than seven miles per hour within the built-up portions of the city, and at a greater speed than eight miles per hour in the other portions, was held not invalid as in conflict with a statute providing that no person should be allowed to operate a motor vehicle on any of the public streets of a city at a greater speed than a mile in six minutes within the corporate limits, and that outside the corporate limits of any city the lawful rate of speed should not exceed one mile in three minutes.
In Christensen v. Tate (1910), 87 Neb. 848, 128 N.W. 622, the second paragraph of the syllabus reads as follows:
"The law gives cities of the second class control of their streets, and an ordinance regulating the speed of motor vehicles in the streets will not be held void as in conflict with the statute on that subject, unless it appears that the limitation of speed is such as to prohibit the free use of the streets by such vehicles."
The ordinance in this case provided that no automobile should be driven in the streets at a greater rate of speed than eight miles an hour, and that, in turning a corner of any street or avenue, or crossing the intersection of any street or avenue, or in any alley of the city, the speed should not be greater than four miles an hour. The act of the Legislature (Laws Neb., 1905, c. 129) contained this general provision: "No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person," and provided specifically that in the closer built-up portion of a city, town, or village, such vehicle should not be operated at a greater rate of speed than one mile in six minutes, and in other portions of a city, town, or village, the speed should not be greater than one mile in four minutes, and, outside of a city, town, or village, the speed should not be "at a greater average rate than twenty (20) miles per hour." The act further provided (Section 11) that "cities and towns shall have no power to pass, enforce or maintain any ordinance, rule or regulation * * * or exclude or prohibit any motor vehicle * * * from the free use of such highways, and all such ordinances, rules or regulations now in force, are hereby declared to be of no validity or effect."
In City of Bellingham v. Cissna (1906), 44 Wn. 397, 87 P. 481, the syllabus reads as follows:
"Chapter 154, Laws 1905, p. 293, providing for a state license of automobiles, and declaring that cities shall have no power to require any such license or to exclude automobiles from the free use of the streets, does not prevent a city from limiting the speed of automobiles within its limits to six miles per hour, although Laws 1905, § 10, provides that such speed shall not, in thickly settled or business portions of the city, exceed twelve miles per hour; in view of § 12 of said chapter, providing that no greater speed shall be attained than is reasonable and proper, having regard to the traffic," etc.
In Roper v. Greenspon (1917), 272 Mo., 288, 198 S.W. 1107, L.R.A., 1918D, 126, it was held that the Laws of 1911, page 322, regulating the operation of automobiles, and providing that the statute shall be exclusively controlling, and that every person operating a motor vehicle on the public highway shall drive at such a rate of speed as not to endanger the property of another, and that a rate of speed in excess of 25 miles an hour for a distance of one-half a mile shall be presumptive evidence of careless driving, "did not expressly or by intendment withdraw from cities the power to regulate the speed of automobiles upon their streets, nor does such act deprive cities of their power to enact valid ordinances providing reasonable speed and other regulations in the use of streets by automobiles."
In this case the ordinance provided: "No automobile * * * shall be moved or propelled along, over or upon any public street, * * * at a greater rate of speed than is reasonable, having regard to the traffic and use of such street, * * * or so as to endanger the life or limb of any person, or the safety of any property, and shall not in any event, * * * be moved or propelled at a greater rate of speed than eight miles per hour in the business portions of the city, and not greater than ten miles per hour in the other portions thereof."
In City of Windsor v. Bast (Mo.App., 1917), 199 S.W. 722, the fifth paragraph of the syllabus reads:
"Laws 1911, p. 327, § 9, as to speed of motor vehicles on a public highway of the state, does not apply to travel in city streets, and does not limit the power of the city to make regulations."
Section 9 of the Motor Vehicle Act provided:
"Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one-half of a mile shall be presumptive evidence of driving at a rate of speed which is not careful or prudent."
In District of Columbia v. Bailey, 57 App. D.C., 151, 18 F.2d 367, the speed regulation of the District of Columbia was held not in conflict with the traffic act of the district. The syllabus in that case reads as follows:
"Traffic Regulations of District of Columbia, * * * prohibiting greater speed than 15 miles an hour for passenger vehicles on certain bridges, adopted by director of traffic pursuant to District of Columbia Traffic Act [43 Stat., 1119], * * * held not in conflict with Section 9, subds. (a), (b), prohibiting a speed greater than 22 miles per hour, except in outlying districts or on arterial highways, or any speed greater than is reasonable or proper."
Sims v. Martin, 33 Ga. App. 486, 126 S.E. 872, held in the tenth paragraph of the syllabus:
"There is no inconsistency or conflict between a legislative act limiting the speed of an automobile to 30 miles per hour in a city and an ordinance of the city limiting such speed to 15 or 8 miles per hour under the same conditions and circumstances. The ordinance of a city penalizing a less speed than is penalized by the statute of the state is merely supplemental to the statute. The plaintiff may allege negligence either under the statute or under the ordinance, or under both."
In Ham v. County of Los Angeles, 46 Cal.App. 148, 189 P. 462, the seventh paragraph of the syllabus is:
"A county ordinance which declares it unlawful to drive any vehicle over or across any county bridge at a rate of speed greater than five miles an hour is not in conflict with the provision of subdivision (b) of section 22 of the Motor Vehicle Act, which declares that a motor vehicle shall not be operated over bridges at a rate of speed greater than ten miles an hour where the view of the road traffic is obstructed."
The California Supreme Court endeavored to distinguish this case in the decision in Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A. L. R., 1172, cited in the majority opinion. The distinction seems to me tenuous indeed, and Judge Shaw, in the dissent in that case, points out that there is no distinction as to the general principle that, where a city ordinance makes a local regulation tending to afford greater protection to the safety or health of the people than is given by the general laws regulating the same matters, such city ordinance is not in conflict with general law.
Supporting this general proposition are Brennan v. Recorder of City of Detroit, 207 Mich. 35, 173 N.W. 511; Adler v. Martin, 179 Ala. 97, 59 So. 597; Mancuso v. Yellow Taxicab Co., 231 Mich. 189, 203 N.W. 875; City of Chicago v. Keogh, 291 Ill. 188, 125 N.E. 881; Kolankiewiz v. Burke, 91 N.J. Law, 567, 103 A. 249.
1 Berry on Automobiles (6th Ed.), Section 97, page 75, states:
"In some states it has been held that, aside from statutory prohibition, however, a municipal corporation may enact an ordinance establishing a lower maximum rate of speed for automobiles than that provided by statute" — citing Dowdell v. Beasley, 17 Ala. App. 100, 82 So. 40, which held: "The fact that the ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirements for all cases to its own prescription."
The Ohio cases cited in the majority decision as supporting the proposition of the syllabus in my judgment do not apply. In the case of Niehaus, Bldg. Inspector, v. State, ex rel. Board of Education, 111 Ohio St. 47, 144 N.E. 433, the ordinance in question sought to exact a fee for the inspection and approval of plans for public school buildings. It has been heretofore held by this court that schools are a matter of state concern ( Miller v. Korns, Aud., 107 Ohio St. 287, 140 N.E. 773); in other words, the school system is not a subject of local self-government.
In the cases, City of Bucyrus v. Department of Health, 120 Ohio St. 426, 166 N.E. 370, and State, ex rel. Neal, Dir. of Health, v. Williams, Mayor, 120 Ohio St. 432, 166 N.E. 377, the questions involved were the dumping of sewage into streams which discharged their germ- laden contents upon the land outside the confines of the municipality. Sanitation, in every aspect, is necessarily a matter of general government, for disease in one city cannot be confined within the limits of that city; but the case is made even stronger by the fact that the use of streams running through a city for sewage disposal necessarily results in a direct invasion of the rights of other parts of the state with regard to health and sanitation. On the other hand, the cases of City of Fremont v. Keating, 96 Ohio St. 468, 118 N.E. 114; Greenburg v. City of Cleveland, 98 Ohio St. 282, 120 N.E. 829; City of East Liverpool v. Dawson, 101 Ohio St. 527, 130 N.E. 936, and Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519, certainly support the position taken in this dissenting opinion that the ordinance in question is not in conflict with general law.
Also in my judgment the decision of the majority is incorrect, because it violates the principle of local self-government, so long recognized in this state, with regard to control of the streets of a municipality, and violates the express provision of Section 3, Article XVIII, of the Ohio Constitution, that municipalities shall exercise all powers of local self-government.
Long prior to the enactment of the home rule amendment, the right to regulate traffic on city streets was recognized as constituting a peculiar power of local self-government. That the power here in question is exercised only within the confines of the municipality is self-evident, and to that extent it is manifestly local. Now Section 3632, General Code, adopted prior to the constitutional amendments of 1912, gives full control of the streets of the corporation to the municipality. Under Section 3632 cities are given the specific power "to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways."
The reason for this enactment is patent to the most surface observer. The municipality knows the conditions and the needs of its own traffic better than any state Legislature, however intelligent. In the Ohio river towns, the existence of narrow, winding streets, abutting here and there upon cliffs and hills, with interurban cars carrying through traffic at comparatively high rates of speed, and with highways which pass through sharply turning tunnels under railway bridges, the problem of automobile traffic upon streets, where the pedestrian necessarily has to be considered more than in the open country, is vastly different, both from the general problem throughout the state and from that existing in a city of wide streets, flat surfaces, and straight lines of travel. In cities such as Fostoria or Bellevue, intersected by numerous railway tracks with interurban service constantly operating large and heavy cars, the problem of speed is entirely different from that to be found in a municipality cut by no railway lines whatever.
I might cite instances of this kind ad infinitum. Because of the recognition of this fact, courts of last resort in states where home rule, as we know it in Ohio, does not exist, have hesitated to hold that ordinances of this kind are in conflict with state law.
Because of the very nature of the problem, recognized for generations as being a purely local question, in my judgment the regulation of traffic on the streets of a city comes within the power of local self-government, and is not, and cannot be, limited by general law.
In Kalich v. Knapp (1914), 73 Or. 570, 145 P. 22, Ann. Cas., 1916E, 1055, reversing on rehearing (1914), 73 Or. 558, 142 P. 594, Ann. Cas., 1916E, 1051, where a section of the Constitution provided that the Legislature should not enact, amend, or repeal any charter or act of incorporation of any municipality, and the legal voters in municipalities were granted power to enact and amend their charters, subject to the Constitution and criminal laws of the state, and another section of the Constitution reserved the initiative and referendum powers to local voters of every municipality, it was held that these provisions limited the legislative power over the subject of municipal traffic, and that a motor vehicle act declaring that its purpose was to limit the authority of municipalities on like subjects, and providing that local authorities should have no power to prescribe a lower rate of speed than that fixed by the act, was unconstitutional, although the act provided for a punishment for its violation.
In People, ex rel. Hainer, v. Keeper of Prison (1907), 190 N.Y., 315, 83 N.E. 44, affirming (1907), 121 App. Div. 645, 106 N.Y. S., 314, the syllabus reads:
"Under the provisions of the Motor Vehicle Law (L. 1904, ch. 538), permitting the local authorities of cities and incorporated villages to 'limit by ordinance, rule or regulation hereafter adopted, the speed of motor vehicles on the public highways,' such municipalities have only the power to prescribe a lower rate of speed within their territorial jurisdiction than that permitted by the general law."
In Kelly v. James, 37 S.D. 272, 157 N.W. 990, the second paragraph of the syllabus is as follows:
"Under Laws 1913, ch. 276, being the motor vehicle law, Section 20, providing that, except as therein provided, local authorities shall have no power to pass or enforce any ordinance requiring from an automobile owner any fee, license or permit for use of public highways, or excluding any such owner from the free use of public highways, or in any way regulating motor vehicles or their speed, upon, or in the use of public highways, and that no ordinance or regulation contrary or in any wise inconsistent with the provisions of the act should have any effect, held, that the Legislature, in enacting said vehicle law, did not intend to deprive municipalities of the power to enact ordinances in relation to the laws of the road, or to give any greater privileges to drivers of motor vehicles than were enjoyed by drivers of all vehicles; that said statute aimed to prevent municipalities from singling out motor vehicles and legislating against them in particular; and such statute did not annul a city ordinance requiring persons driving or operating a vehicle, whether motor or animal drawn, on any street in a city to keep to the right hand of such street and as close as possible to the curb; said ordinance not being contrary to or inconsistent with the provisions of said statute."
1 Blashfield's Cyclopedia of Automobile Law, 238, 239, states:
"An attempt of the Legislature to limit by a general law the power of local legislative bodies to pass regulations, not inconsistent with the general law regulating the use of the highway and the operation of motor vehicles, would violate a constitutional provision expressly granting authority to municipalities to enact local regulations; and under home rule provisions in some of the state Constitutions, the Legislature has been held to have no power to nullify or amend the charter or ordinance of a city in a matter of acknowledged local concern, such as the regulation of traffic over its streets. Consequently in such jurisdictions motor vehicle acts which attempt to limit the authority of cities and towns to prescribe a lower rate of speed for motor vehicles than that provided in such an act are ineffective.
"In some jurisdictions, however, as has been already stated, a provision of the Motor Vehicle Act prohibiting municipalities from passing any ordinance limiting or restricting the speed of motor vehicles and declaring any such ordinance void, has been given full force. [Citing Elie v. Adams Express Co., 300 Ill. 340, 133 N.E. 243.]
"This legislation seems vicious. The principle of home rule, recognized by the organic law of many of the states, would seem to guarantee to the inhabitants of a city the right to legislate on matters so vitally affecting their lives and property as the rate of speed of such vehicles.
"The only reason urged for such legislation is the divergent character of municipal regulations as to speed, making it hard for the motorist to know the law. But if he does not know the precise limit of speed permitted to him, he does know that, if he travels at such a rate that his car is absolutely under control, he can offend no local regulation. It ought to be no hardship, while passing through a strange municipality, to forget speed and look only to safety. To take away from municipalities the power to protect their citizens from reckless motorists, to violate the principle of self-government, constituting one of the fundamental characteristics of the republic, in order that the motorist may attain the utmost speed possible within the law, is very like tearing down the house to save the parrot."
If the decision of the majority in this case is to stand, the municipal right of home rule, in my judgment, will be seriously invaded.