Brazier v. City of Philadelphia
| Decision Date | 14 May 1906 |
| Docket Number | 378 |
| Citation | 215 Pa. 297,64 A. 508 |
| Parties | Brazier, Appellant, v. Philadelphia |
| Court | Pennsylvania Supreme Court |
Argued March 23, 1906 [Copyrighted Material Omitted]
Appeal, No. 378, Jan. T., 1905, by plaintiff, from decree of C.P. No. 4, Phila. Co., Dec. T., 1905, No. 963, refusing an injunction in case of H. Bartol Brazier, Charles S. Wurts Jr., and Samuel Y. Heebner v. City of Philadelphia, John Weaver et al. Affirmed.
Bill in equity for an injunction.
WILLSON, P.J., filed the following opinion:
On December 26, 1902, an ordinance of the city of Philadelphia was approved, which was intended to regulate the use of automobiles and similar conveyances within the limits of the city. It prescribed that, before any such vehicle could be used, a certificate must be procured from the Bureau of Boiler Inspection, setting out various regulations or requirements in regard to the construction and appliances of the vehicles. These regulations all looked to the element of safety in the use of the machine. In addition, the ordinance provided that no person should drive an automobile without obtaining a license from the department of public safety. Preliminary to the obtaining of a license it was necessary for the applicant to furnish satisfactory evidence of his competency. It was also provided that no person in charge of an automobile or similar vehicle should drive or operate the same at a rate of speed greater than seven miles per hour, within the built-up portions of the city, and at a rate greater than eight miles per hour in other portions of the city. Various other regulations were prescribed in regard to the exhibition of lights at night and the placing of tags bearing license numbers upon the vehicle. Various other regulations were also contained in the ordinance, which, however, it is not necessary to enumerate or refer to. By express provision, the clause relative to the using of licenses was made inapplicable to drivers of automobiles from other localities passing through the city, for a period of forty-eight hours.
On April 23, 1903, an act of assembly was passed which related to the same class of vehicles, and provided that no such vehicle should be operated on the highways of the commonwealth without being registered in the office of the prothonotary of one of its counties. The prothonotary was directed to enter the application for registration in a book kept for the purpose, and in a proper case to issue a certificate of registration to the applicant. It was directed that the certificate be placed in a prominent position on the vehicle, and that the registration number should be displayed conspicuously upon the back of the vehicle. The statute provided that no person should be allowed to use or operate a motor vehicle at a speed greater than eight miles an hour within the corporate limits of any cities and boroughs of the commonwealth, or at a rate exceeding a mile in three minutes outside of the corporate limits thereof. Under the provisions of the statute, no person was allowed to use or operate such a vehicle on the highways until the owner should have procured a license from the treasurer of one of the cities or counties of the commonwealth, and this license was ordered to be displayed conspicuously upon the back of the vehicle.
Under the ordinance previously referred to, and the act of assembly just mentioned, the use of automobiles within the limits of the city of Philadelphia has grown to be extensive, and, so far as appears, there has been no practical difficulty in the enforcement of both ordinance and statute or any suggestion that they were incompatible or inconsistent. It is claimed on behalf of the plaintiffs, however, that whatever may have been the case previously the condition of affairs was altered when the act of assembly of April 19, 1905, came into existence. That statute enacted that no motor vehicle could be operated within the highways of the commonwealth until the operator of the vehicle should procure a license from the state highway department of the commonwealth. That department was directed to enter the application for a license in a particular book and in a proper case to issue a license to the applicant, together with two tags exhibiting the license number and the number of the year. For this license, as well as for the licenses called for by the ordinance of 1902, and the act of assembly of 1903, a fee was to be paid. It is provided in the statute that not more than one state license number should be carried upon front and back of 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 used within this commonwealth."
Various other provisions are contained in the act in regard to the exhibition of lights, display of tags, appliances of the machines, carrying of licenses, etc., but these need not be detailed.
In regard to the rate of speed it was enacted that "no person or persons shall be allowed to use, operate or drive any motor vehicle, as aforesaid, on any of the public streets or public highways of the cities, boroughs, counties or townships of this commonwealth at a speed greater than a mile in six minutes, within the corporate limits of any of the cities and boroughs thereof; outside of the corporate limits of any city or borough, as aforesaid, the lawful rate of speed shall not exceed one mile in three minutes." There was a proviso that in townships of the first class the commissioners may, be ordinance, fix a rate of speed of not less than one mile in six minutes; and also that the section containing the provision as to rate of speed should not permit any person to drive an automobile faster than is reasonable, "regarding traffic, danger, or injury to property or person, at any time or at any place."
It is contended on the part of the plaintiff that this act of 1905 must be regarded as superseding and obliterating the ordinance of 1902, and as supplying the sole method of regulating the use of automobiles within the commonwealth. Plaintiffs are taxpayers within the city, and being apprehensive that the municipality, in making preparation for carrying out the provisions of the ordinance for the year 1906, will be obliged to make certain expenditures of the public funds, have filed the bill in this case to prevent the public officers from taking any steps in that direction.
It is, of course, beyond all question that, if the statute and the ordinance are inconsistent, or, if the statute can fairly be regarded as intended to supplant the ordinance, the latter must give way and the statute only have effect given to it. Paramount authority of the lawmaking power of the state over the lawmaking power of the city must be conceded. The question, therefore, comes down to this: Is there any necessary incompatibility between the statute and the ordinance, or does it sufficiently appear that the statute was intended to furnish the sole rule of conduct and regulation for the use of automobiles and similar vehicles?
In the absence of any state legislation covering the subject, either expressly or by implication excluding the power of the municipality to legislate upon the same, that the city would have the power to enact such an ordinance as is under consideration must be conceded. That probably will not be denied. Under the general powers which were conferred on the city of Philadelphia at the time of the consolidation of the city with the old surrounding districts, and which have been acted upon ever since in numerous instances, the city undoubtedly had the right by ordinance to legislate in regard to the use of the streets for the protection and safety of its citizens. The ordinance of 1902 was passed, as it seems to us, in the exercise of full power to enact it. It contained many provisions more detailed and specific and better adapted in our judgment, to protect the people using the streets of the city from injury, than the act of 1905 and unless there is some imperative reason for holding that the ordinance has been superseded by the act, we are not inclined to reach such a conclusion. In particular we may refer to the provisions in the ordinance that the rate of speed of automobiles in the built-up portion of the city shall not exceed seven miles an hour. This is a most salutary provision, and it ought to be enforced far more rigidly than it is. It is only necessary to resort to the most cursory observation to find the...
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