Swift v. The City of Topeka

• Decision Date: 10 May 1890
• Citation: 23 P. 1075,43 Kan. 671
• Parties: W. E. SWIFT v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

23 P. 1075

43 Kan. 671

W. E. SWIFT v. THE CITY OF TOPEKA

Supreme Court of Kansas

May 10, 1890

Decided January, 1890

Appeal from Shawnee District Court.

THE case is stated in the opinion, filed on May 10, 1890.

Judgment reversed and cause remanded.

Johnson Martin & Keeler, for appellant.

S. B Isenhart, city attorney, contra.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

W. E. Swift was convicted in the police court of the city of Topeka of violating § 17 of the ordinance of said city, No. 861, and fined the sum of one dollar and costs. From this conviction he appealed to the district court of Shawnee county, where a jury was waived, and a trial had by the court that resulted in his conviction, and a fine of one dollar and costs imposed. He brings the case here for review, and alleges the invalidity of the ordinance as a cause for reversal. Section 17 of the ordinance in question reads as follows:

"It shall be unlawful for any person to ride on any bicycle or velocipede upon any sidewalk in the city of Topeka, or across the Kansas river bridge. Any person violating this section shall, upon conviction thereof, be fined in a sum not less than one dollar nor more than ten dollars for each offense."

It was admitted at the trial that the defendant, W. E. Swift, on the 21st day of June, 1889, was riding upon a bicycle across the Kansas river bridge, situated on Kansas avenue, within the corporate limits of the city of Topeka; that he was engaged in riding his bicycle across the said bridge when he was arrested, which bridge is 900 feet long, and spans the Kansas river between North and South Topeka; that the main part of said bridge is constructed wide enough for teams to pass each other going in opposite directions, being about seventeen feet in the clear; that on each side of the wagon-road there is a passage-way for foot passengers, and that the defendant was riding his bicycle, at the time named in the complaint, on that part of the bridge used for wagons, carriages, and other vehicles; that the bridge just described is the only bridge on the Kansas river between North and South Topeka, and is the only means of communication between those points; that it is used and occupied with a double track by the Topeka City Railway Company, which continually runs its street cars between the two points named; that there is a large travel across said bridge, between the two parts of the city of Topeka, by vehicles drawn by horses and otherwise, and that teams and other vehicles are constantly passing over said bridge each way. It is further shown by the evidence that a bicycle can be driven at the rate of from two to twenty miles per hour; that the ordinary and usual rate of speed is eight miles per hour; that it can be stopped within from two to twenty feet, when being driven at the rate of ten miles per hour, the limit within which it can be stopped depending somewhat on the kind of bicycle and the experience of the rider; that bicycles have been in use in this city for several years, and at the time of this arrest that there were more than one hundred in constant use in the city. These are the substantial and material facts which are shown by the record.

It will be seen by an ordinary inspection of the record that the ordinance only prohibits the use of a bicycle or velocipede upon any sidewalk in the city of Topeka, or across the Kansas river bridge. It does not, either in express terms or by fair implication, forbid riding upon a bicycle on the roadway, or that part of any of the public streets which is devoted to the use of carriages, wagons, and other vehicles; and while the ordinance is subject to the construction that it was only along or across the foot passage-way or sidewalk of the Kansas river bridge that persons were forbidden to ride on bicycles, yet for the present we shall adopt the construction necessarily adhered to by the trial court, that the ordinance intended to forbid all riding upon bicycles across any part of the Kansas river bridge. It is an admitted fact in this case, that at the time of the arrest Swift was riding his bicycle on that part of the bridge used for wagons, carriages, and other vehicles. A bicycle is defined by lexicographers, and by the courts of England and of this country, to be a carriage. (Webster's Dictionary; Taylor v. Goodwin, 40 L.T.R. 458; Mercer v. Corbin, 117 Ind. 450; 2 Am. & Eng. Ency. of Law, 191; The State v. Collins, 16 R.I. 371, 17 A. 131, decided by supreme court of Rhode Island in December, 1888.)

A bridge in the city of Topeka is a part of the public street. (City of Eudora v Miller, 30 Kan. 494.) The exact question then is,...