The State v. Swagerty

• Decision Date: 14 May 1907
• Citation: 102 S.W. 483,203 Mo. 517
• Parties: THE STATE v. J. L. SWAGERTY, Appellant
• Court: Missouri Supreme Court

102 S.W. 483

203 Mo. 517

THE STATE v. J. L. SWAGERTY, Appellant

Supreme Court of Missouri, Second Division

May 14, 1907

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Affirmed.

R. H Stevens and Kehr & Tittmann for appellant.

(1) The general purpose of streets and highways is that of travel either on foot by a pedestrian or in a vehicle propelled by power. The use to which the public thoroughfares may be put comprehends all modern means of conveyance. The motor vehicle has an equal right with other vehicles in common use, to occupy and use the public highways and streets. Indiana Springs Co. v. Brown, 74 N.E. 615; Macomber v. Nichols, 34 Mich. 217; Moses v. Railroad, 21 Ill. 515; Upton v. Windham, 75 Conn. 288; Christie v. Elliott, 216 Ill. 31; Shinkle v. McCullough, 116 Ky. 965; Chicago v. Banker, 112 Ill.App. 94; Thompson v. Dodge, 58 Minn. 555; Holland v. Bartsch, 120 Ind. 46. (2) Such being the law, and it having been decided in this State that the right and power to license, tax and regulate the use of vehicles upon the public roads or highways is solely based upon the common law maxim "that those who mainly wear out the streets should mainly pay for keeping them in repair and that there should be such graduated scales that the kind of carriage which most wears out the streets should pay most and those which are less destructive, should pay less" (City v. Green, 7 Mo.App. 477, 70 Mo. 562; Kansas City v. Richardson, 90 Mo.App. 458), the Automobile Act of 1903 is a special law, and, therefore, violates section 53, article 4 of the Constitution of Missouri, which prohibits the enactment of a special law where a general law may be made applicable and which makes the question whether a general law could be made applicable a judicial one. State ex rel. v. Herman, 75 Mo. 346; State ex rel. v. Tolle, 71 Mo. 650; Sams v. Railroad, 174 Mo. 53; State v. Granneman, 132 Mo. 326. (3) The act violates the 14th amendment to the Constitution of the United States. Every person in the United States is entitled to the equal protection of the laws. That amendment is a guaranty of protection against State action. Virginia v. Rives, 100 U.S. 313; U. S. v. Cruikshank, 92 U.S. 542; Ex parte Virginia, 100 U.S. 339; Railroad Tax Cases, 13 F. 722.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

The Automobile Law is not unconstitutional, but is a reasonable exercise of the police power of the State. When such dangerous machines are allowed the use of our public highways, it is certainly right as well as reasonable to require that those in charge of them shall operate them at a reasonable rate of speed. In addition to the dangers attendant upon the use of them, such as collisions with other vehicles and the injury to pedestrians, automobiles are calculated to frighten horses and mules. It is a fact well known to all that our domestic animals do not frighten as readily at a bicycle, steam roller, automobile or threshing machine that is moving slowly as at one that is moving fast. Hence, for the safety of pedestrians as well as those riding and driving, this law was enacted. Christy v. Elliott, 216 Ill. 39; McIntyre v. Orner, 76 N.E. 752; Shinkle v. McCullough, 77 S.W. 197; Gifford v. Jennings, 190 Mass. 154; Com. v. Sherman, 78 N.E. 98; Eichmann v. Buchheit, 107 N.W. 325; In re Berry, 147 Cal. 523; Radnor Twp. v. Bell, 27 Pa. Sup. Ct.; Crittenden v. Columbus, 26 O. C. C. 531; People v. Ellis, 88 A.D. 471.

OPINION

BURGESS, J.

On the 29th day of October, 1905, there was filed by the prosecuting attorney of St. Louis county, before R. F. Stevens, a justice of the peace of said county, an information charging that defendant J. L. Swagerty did wilfully and unlawfully, at said county, on said 29th day of October, 1905, operate and run a certain automobile, propelled by steam, gasoline, electricity or other motive power, at a greater rate of speed than nine miles per hour, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.

Thereafter, on November 16, 1905, said justice heard said cause, and found the defendant guilty, and assessed his punishment at a fine of one hundred dollars and costs. Defendant appealed from this judgment to the circuit court of St. Louis county, where, on the 23rd day of May, 1906, the cause was again tried by the court, a jury being waived, and the defendant again convicted, and his punishment fixed at a fine of one hundred dollars and costs. In due time defendant filed motions for a new trial and in arrest, which were overruled, and defendant appealed to this court.

The evidence showed very conclusively that on Sunday, the 29th day of October, 1905, the defendant, on the Clayton road, one of the public highways of St. Louis county, operated an automobile at a speed of twenty miles per hour, and that the automobile was propelled by gasoline. The State asked for no declarations of law. The defendant asked the court to declare the law to be that the act in question was unconstitutional and void, which the court refused to do, and the defendant duly excepted.

This prosecution is based upon the Act of 1903, entitled, "An Act regulating the operation and speed of automobiles on the public streets, roads and highways of this State, fixing the amount of license, and prescribing a penalty for violating same," approved March 23, 1903. It is as follows:

"Section 1. Every person, corporation, company or co-partnership engaged in operating any automobile by steam, gasoline or electricity or other motive power upon any of the public streets, roads or highways of this State, shall keep a vigilant watch for vehicles, carriages or wagons drawn by animals, and especially vehicles, carriages or wagons driven by women or children, and shall when approaching any such vehicle, carriage or wagon so drawn by animal or animals, stop such automobile for such a time as to enable such person in charge of any such vehicle, carriage or wagon to pass, or if going in the same direction, shall before attempting to pass give said driver or person in charge of any such vehicle, carriage or wagon drawn by animal or animals sufficient notice of his or their intention to pass, by the sounding of a bell or whistle, and if necessary to prevent the frightening of such animal or animals bring said automobile to a stop in order to give such driver or person an opportunity to alight from such vehicle, carriage or wagon.

"Section 2. All persons, corporation, company or co-partnership engaged in operating any automobile as aforesaid, shall, when required by the driver or person in charge of any vehicle, carriage or wagon drawn by any animal or animals, give the right of way to such driver of such vehicle, carriage or wagon and shall not run such automobile at a greater rate of speed than nine miles per hour.

"Section 3. All automobiles operated or run upon any of the public streets, roads or highways of any city or county in this State shall bear a number corres-ponding to the number of the license, placed at a conspicuous place; and if run or operated in the night, shall have two lighted lamps on the front part of said automobile, and on said lamps shall be painted in legible figures, at least three inches long, the number thereof.

"Section 4. Every person, corporation, company or co-partnership, desiring to operate any automobile propelled by steam, gasoline or electricity or any other motive power, shall obtain a license from the license commissioner, if in a city having such commissioner, or if desired to operate same in any county outside the corporate limits of any such city or any of the public highways, streets or roads of this State, shall obtain a license from the county clerk of such county authorizing the operating of such automobile, and shall pay to the license commissioner, if in a city having such commissioner, or if in any county to the county clerk of such county, the sum of two dollars per annum for each automobile, so operated and run on the streets, roads and highways, which said sum shall be paid into and become a part of the general road fund.

"Section 5. Any person, corporation, company or co-partnership violating any of the provisions of this act shall upon conviction be adjudged guilty of a misdemeanor and punished by a fine of not less than one hundred dollars nor more than one thousand dollars or by imprisonment in the county jail not less than thirty days nor more than six months or by both such fine and imprisonment." [Laws 1903, p. 162.]

Automobiles, operated and propelled in a manner not incompatible with the safety of the traveling public, have equal rights with other vehicles upon the public highway, subject to such rules and regulations as are prescribed by law.

While it is conceded by defendant that the right to license or tax vehicles or the use of vehicles on the public streets, and to regulate such use, is acknowledged by the courts of this State (St. Louis v. Green, 7 Mo.App. 468, 70 Mo. 562; Kansas City v. Richardson, 90 Mo.App. 450), it is insisted that an analysis of those cases shows that the legislative acts construed applied to all vehicles using the streets, and demonstrates that when the reason of the rule on which these decisions are based is considered, the act in question is special legislation, and, therefore, unconstitutional and void.

There can be no question but that an act which relates to persons or things as a class is a general law, while an act which refers to particular persons or things of a class is a special law. [State ex rel. Lionberger v. Tolle, 71 Mo. 645.] It is well settled, however, in this State that, when the conditions...