Smallwood v. District of Columbia

17 F.2d 210, 57 App. D.C. 58, 1927 U.S. App. LEXIS 2923

• Court: District Court, District of Columbia
• Decided: January 3, 1927
• Docket: No. 4498
• Status: Published

Opinions

ROBB, Associate Justice.

This is a writ of error to the police court of the District of Columbia to review a decision of that court adjudging plaintiff in error guilty of a violation of subsection (a-e) of section 13, article XI, of the Traffic Regulations of the. District, and imposing a fine of $10 or, in lieu of the payment thereof, 10 days in jail.

The information charged that February 24, 1926, plaintiff in error operated a commercial vehicle equipped with solid tires on Sixteenth street, between H street and Colorado avenue, other than for the purpose of making deliveries or loading. Evidence introduced on behalf of plaintiff in error tended to show that commercial vehicles equipped with solid tires really are heavy trucks for use in hauling heavy loads, and that, if they are excluded from that part of Sixteenth street mentioned in the regulation, considerable inconvenience and some additional expense will result. Evidence for the District, on the other hand, tended to show that the inconvenience would be negligible.

On March 3, 1925, Congress passed the “District of Columbia Traffic Act.” 43 Stat. 1119. Section 6 (a) authorized the commissioners of the District to appoint a director of traffic. Section 6 (b) authorized such director “to make reasonable regulations with respect to brakes, horns, lights, mufflers, and other equipment, the speed and parking of vehicles, the registration of motor vehicles, the issuance and revocation of operators’ permits, and such other regulations with respect to the control of traffic in the District, not in conflict with any law of the United States, as are deemed advisable, which regulations shall remain in force until revoked by the director with the approval of the commissioners, and (2) to prescribe within the limitations of this act reasonable penalties of fine, or imprisonment not to exceed ten days in lieu of or in addition to any fine, for the violation of any such regulation.” The foregoing regulátions were promulgated under the supposed authority of this section 6 (b).

Section 9 (a) of this Traffic Act provides that no motor vehicle shall be operated upon any public highway in the District at a rate of speed greater than 22 miles per hour, “except in such outlying districts, and on such arterial highways, as the director may designate.” Section 14 of the same act provides: “For the purpose of expediting motor-vehicle traffic the director is authorized and directed to designate and establish as arterial highways or boulevards such public. highways as he deems advisable, to provide for the equipment of any such highway or boulevard with such traffic-control lights and other devices for the proper regulation of traffic thereon, as may be appropriated for by the Congress from time to time.”

That the regulation and control of traffic in cities of the size of Washington has become a serious problem, by reason of the increased use of motor vehicles, no one would deny. The safety and convenience of pedestrians, motorists, and others using the streets call for regulations tending to expedite traffic and reduce congestion. To these conditions may be attributed the District of Columbia Traffic Act of 1925. . That act, as we have seen, provides for a director of traffic, and authorizes him, among other things, to make reasonable regulations for “the speed and parking of vehicles, the registration of motor vehicles,” and the issuance and revocation of operators’ permits. It will be observed that the speed and parking of all vehicles is to be regulated by the director, who also is to have charge of the registration of “motor vehicles.” The director then is authorized to make “such other regulations with respect to the control of traffic in the District not in conflict with any law of .the United States as are deemed advisable.”

In Tillage of Euclid, Ohio, v. Ambler Realty Co., decided in the Supreme Court of the United States November 22, 1926 (47 S. Ct. 114, 71 L. Ed.-), but not yet [officially] reported, a municipal ordinance excluding from residential districts apartment houses, business houses, retail stores and shops, and other like establishments, was held to be a valid exercise of authority. The court said: “Regulations, the wisdom, necessity, and validity of which, as applied to. existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.”

In People v. Waldo, 72 Misc. Rep. 416, 131 N. Y. S. 307, there was sustained a municipal ordinance restricting the use of a certain boulevard to horses and light carriages and excluding other vehicles, including bicycles and motor vehicles; the court saying: “The practice of controlling and regulating traffic in the public streets and places of large cities has become the accepted fact. „ It found its inception in the problem of facilitating the progress of two moving vehicles, which the law of physics told us at our earliest understanding could not occupy the same spot at the same time. * * * Any law which preserves in any way the publie safety by regulating the use of highways is valid if it affects all of the class.”

In State v. Mayo, 106 Me. 62, 75 A. 295, 26 L. R. A. (N. S.) 502, 20 Ann. Cas. 512, the court sustained an ordinance, passed under legislative authority, closing to the use of automobiles certain public streets. The ground of the decision was that the use of publie streets for the purposes of travel, as well as all personal and property rights, is not an absolute and •unqualified right, but subject to be limited and controlled by the sovereign authority, “whenever necessary to provide for and promote the safety, peace, health, morals, and general welfare of the people.” Answering the contention that the ordinance applied to automobiles only, and not to all other vehicles, the court said: “That contention cannot prevail. This same objection to the constitutionality of statutes and ordinances regulating the use of automobiles, that they apply only to one particular class of vehicles, has been repeatedly raised in recent eases and as repeatedly decided to be without merit.” As sustaining this decision the court cited Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923, and Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487.

In Com. v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264,127 Am. St. Rep. 513, the court sustained regulations, promulgated under legislative authority, which prohibited the passage of automobiles over certain streets of the town, saying: “It seems too plain for discussion that, with a view to the safety of the publie, the Legislature may pass laws regulating the speed of such machines when running upon highways. The same principle is applicable to a determination by the Legislature that there are some streets and ways on which such machines should not be allowed at all. * * * No one has a right to use the streets and pub-lie places as he chooses, without, regard to the safety of other persons who are rightly there. In choosing his vehicle, every one must consider whether it is of a kind which will put in peril those using the streets differently in a reasonable way.” The court then cited and quoted from a decision in the same court, rendered 60 years earlier, in which was sustained on ordinance of the city of Boston, prescribing the streets on which certain omnibuses might be run and excluding them from other streets. In the earlier opinion it was said: “To take a strong case: Suppose the proprietor of the omnibuses from Roxbury should deem it expedient to propel his carriages by steam power, passing through Washington street, at a rapid rate, would it not be a lawful and proper regulation for the mayor and aldermen to prohibit the using of Washington street by vehicles propelled by steam power? We cannot doubt that it would be.”

In Carranzo v. District of Columbia, 56 App. D. C.118, 10 F.(2d) 983, we sustained a regulation of this District designating particular stands for push-cart venders and imposing penalties for violations, saying: “-The record discloses that, prior to the promulgation of these regulations, there were from 65 to 100 push-eart venders in the business of vending fruits and vegetables within the congested section; that to permit such a comparatively large number of these push-cart venders to ply their trade generally throughout the most congested part of the city might have a tendency seriously to interfere with traffic and be a menace to the safety of the general public may not be doubted. Recognizing this, the commissioners located within this area five stands, and restricted the activities of such venders to those locations. On the record before us, we would not be justified in saying that this was an unreasonable exercise of power; that is, that it amounted to prohibition, rather than regulation.”

In Croson v. District of Columbia, 55 App. D. C. 122, 2 F.(2d) 924, we ruled that the general powers conferred on the commissioners of the District of Columbia empowered them to make police regulations providing for the issuance of permits to automobile drivers and imposing penalties for failure by drivers to exhibit their permits. Attention also was directed in that case to the plenary power of Congress as the Legislature of the District of Columbia. See, also, White v. District of Columbia, 55 App. D. C. 197, 4 F.(2d) 163.

Is the regulation here involved authorized by the Traffic Act and,, if so,, is it reasonable? Section 9 (a) limits generally the speed of motor vehicles to 22 miles per hour, except in outlying districts “and on sueh arterial highways as the director may designate.” Under section 14, “For the purpose of expediting motor vehicle traffic the director is authorized and directed to designate and establish as arterial highways or boulevards sueh public highways as he deems advisable.” (Italics ours.)

The director, it will be observed, not only is authorized, but “directed,” for the purpose of expediting “motor vehicle traffic,” to establish arterial highways or boulevards. Sueh was the mandate of Congress. And when Congress, in section 6 (b), authorized the director to make “sueh other regulations with respect to the control of traffic in the District,” it must be assumed that this grant of authority was commensurate with the scope and. purpose of the act. In other words, Congress intended to authorize, and did authorize, the director to make reasonable regulations to carry out the provisions of the act. One obvious purpose of the act was to provide for greater speed on these arterial highways or boulevards. It is apparent, however, that if heavy trucks, which plaintiff in error himself testified are hard to control in traffic, and whose speed is specifically limited by the traffic regulations, were permitted to be operated generally on these arterial highways, the purpose of establishing sueh highways would be frustrated.

It may be observed that, if the director-of traffic was without authority to promulgate the regulations here involved, he also would lack authority to prevent the general use of arterial highways by push carts and other slow-moving vehicles, although sueh use would frustrate the intent of Congress.

The suggestion that the width of Sixteenth street renders sueh a regulation unnecessary is without merit. It is common knowledge that in any large city, and especially in the city of Washington, where so many employees of the government use motor vehicles, traffic frequently is so congested that even the widest streets are practically filled with motor cars. It is idle to contend that slow-moving vehicles on arterial highways would not seriously interfere with and retard traffic authorized to move from two to three times their speed.

Finally, it is contended that the regulation in question is invalid, because it is an attempt by ministerial officers both to define a crime and prescribe a punishment. Section 2 of the Traffic Act provides that “the term 'this act’ includes all lawful regulations issued thereunder by the commissioners.” We already have ruled that section 6 (b) authorized the promulgation of these regulations, which therefore, by the provisions of section 2, are made a part of the Act. Congress, in section 6 (b), provided for “reasonable penalties of' fine, or imprisonment not to exceed ten days in lieu of or in addition to any fine, for the violation of any sueh regulation.” Clearly this was a legislative declaration that a violation of the regulations would amount to a criminal offense. Section 22 of article XVI of the Traffic Regulations, applicable here, prescribes a penalty of not less than $1 or more than $300, or imprisonment of not more than 10 days — a reasonable penalty “of fine or imprisonment.” In Smithson v. District of Columbia, 42 App. D. C. 184, Smithson had been convicted under an information charging him with a violation of the building regulations of the District, and sentenced to pay a fine or in default to serve a term in jail. The act of Congress under which the regulations were promulgated authorized the commissioners to make and enforce building regulations, and this court held that the imposition of a penalty was included within the power of enforcement given the commissioners. The court quoted the rule stated by Judge Dillon in his treatise on the law of Municipal Corporations (volume 2 [5th Ed.] § 610) as follows: “Since an ordinance or by-law without a penalty would be nugatory, municipal corporations have an implied power to provide for their enforcement by reasonable and proper fines against those who break them. So, the right to make by-laws given to the corporation, without any express grant of power, the incidental right to enforce them by reasonable pecuniary penalties.”

Plaintiff in error cites Clausen v. De Medina, 82 N. J. Law, 491, 81 A. 924. In that case the statute authorized a regulation to limit and prevent the driving or travel on a certain boulevard of loaded or heavy trucks, wagons, or carts. The regulation promulgated prohibited any “automobile, locomobile, truck, cart or other vehicle used for business purposes” from using the boulevard. In condemning the regulation the court said: “The test for exclusion required by this rule is the use in which the vehicle is employed, while the test prescribed by the statute is weight. The evident legislative intent is that those vehicles which by reason of their weight tend to injure the roadway, may be interdicted. There appears no purpose in the statute to discriminate between conveyances when used for business purposes and when for pleasure driving, yet such is the effect of the rule which must be justified by the statute.” The difference between that ease and this .is so obvious as to require no further discussion.

We have examined and found without merit other contentions of plaintiff in error. It results that the judgment must be affirmed, with costs.

Affirmed.