City of Bellingham v. Cissna

• Decision Date: 14 November 1906
• Citation: 87 P. 481,44 Wash. 397
• Parties: CITY OF BELLINGHAM v. CISSNA.
• Court: Washington Supreme Court

87 P. 481

44 Wash. 397

CITY OF BELLINGHAM v. CISSNA.

Supreme Court of Washington

November 14, 1906

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Ray Cissna was convicted of violating an ordinance of the city of Bellingham, forbidding the driving of automobiles on its streets at a greater speed than six miles per hour, and appeals. Affirmed.

Hardin & Hurlbut, for appellant.

Henry C. Beach, for respondent.

CROW, J.

In August, 1904, the city of Bellingham enacted ordinance No 50, section 2 of which made it unlawful for any person to ride or drive an automobile on its public streets at a greater rate of speed than six miles per hour. On May 5 1906, a complaint was filed before H. B. Williams, police judge of Bellingham, charging that the defendant, Ray Cissna did, on May 4, 1906, ride and drive an automobile on Holly street in the city of Bellingham at a greater rate of speed than six miles per hour. On trial before the police judge and also on a second trial after appeal, in the superior court, the defendant was convicted and fined. From the final judgment of the superior court, this appeal has been taken.

Upon being arraigned, the appellant demurred to the complaint on the grounds, (1) that the court had no jurisdiction of the person of the appellant, or the subject-matter of the action (2) that the respondent had no legal capacity to bring this action; and (3) that the complaint did not state facts sufficient to constitute a misdemeanor, offense, or cause of action. This demurrer which was overruled by the police judge, was afterwards urged in the superior court, and again overruled. Appellant assigns error on the order overruling the demurrer, and contends that it questions the validity of said section 2 of ordinance No. 50, which regulates speed in the driving of automobiles. He contends that the delegated power under which the city ordinance was originally passed has, in so far as automobiles kept for private use are concerned, been withdrawn by chapter 154, page 293, Laws of 1905, which act he insists declares the policy of the state in the matter of the regulation of such vehicles. The appellant further contends that section 12 of the act of 1905 deprives the city of any power to pass or enforce an ordinance requiring the owner of an automobile to obtain a license to use the streets; or excluding from such use of the streets any automobile whose owner has complied with the provisions of said act. There is no contention but that appellant was the owner of the automobile in question; that he kept it for his private use; that he held a certificate from the Secretary of State under the act of 1905, and that he rode or drove his automobile over Holly street at a greater rate of speed than six miles per hour. If section 2 of ordinance No. 50 is valid, then the appellant was rightfully convicted. Otherwise he should be discharged.

Chapter 154, p. 293, session laws of 1905, requires the owner of an automobile to file a description thereof with the Secretary of State, and obtain a numbered certificate for which he pays a certain fee. By section 10 it is provided that no driver or operator in charge of any automobile shall permit the same to be driven or operated within the thickly settled or business portion of any city or village at a greater speed than one mile in 5 minutes, nor over any crossing or crosswalk within the limits of any city at a rate faster than one mile in 15 minutes, when any person is upon the same. By section 12 it is provided that: 'Cities, towns and counties shall have no power to pass, enforce, or maintain any ordinance, rule, or regulation requiring of any owner or operator of any automobile or motor vehicle, any license or permit to use the public roads, highways, park, or parkways, streets, or avenues, or excluding or prohibiting any automobile or motor vehicle whose owner has complied with sections 2, 4 and 5, of this act from the free use of such public road, highway, park or parkway, street or avenue, and all such ordinances, rules and regulations now in force are hereby declared to be of no validity or effect: Provided, That nothing in this act shall be construed as limiting the power of local authorities to make, enforce and maintain ordinance, rules or regulations, in addition to the provisions of this act, affecting automobiles or motor vehicles which are offered to the public for hire.'

The contention of the appellant is that as section 12 secures the free use of the public roads, highways, parks, streets, etc to the owners of automobiles, the city council is therefore prohibited from enacting any speed ordinance such as the one here involved. We do not interpret this language as it seems to be understood by the appellant. We understand the word 'free' to be used for the purpose of prohibiting a city from collecting any additional license or fee from owners of...