SHAW, J., Dissenting.
I dissent. Daniels is charged with driving an automobile faster than fifteen miles an hour over the Colorado Street bridge in Pasadena, in violation of two city ordinances, one forbidding a speed over fifteen miles an hour upon any bridge in the city, the other a speed over ten miles an hour upon that bridge. The Motor Vehicle Act forbids “a greater rate of speed than twenty miles on hour” at any place in a street “where the territory contiguous thereto is closely built up.” The Colorado Street bridge is contiguous to such territory. The question is whether the general law or the ordinances shall prevail.
Section 11, article XI, of the constitution provides that “any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”
Section 6, article XI, makes city charters and ordinances upon “municipal affairs” paramount, as to such affairs, to general laws, in all cities organized under a freeholders’ charter. Pasadena is a city of that character. If the matter of the speed to be allowed in the streets of a city is a municipal affair, section 6,.of course, settles this case. Assuming, however, for the present, that it is an affair not wholly municipal, I. am of the opinion that these ordinances do not conflict with the Motor Vehicle Act and, consequently, that they are valid under section 11 of the article.
It is a settled rule of decision in this state that where, upon any matter subject to the police power, a city ordinance makes a local regulation tending to afford greater protection to the safety or health of the people than is given by the general laws regulating the same matter, such city ordinance is not in conflict with the general law. Thus a city ordinance requiring that all milk sold within the city shall contain at least three and one-half per cent of butter fat does not conflict with a general law requiring that all milk sold shall contain at least three per cent of butter fat.
(Ex parte Hoffman,
155 Cal. 118, [132 Am. St. Rep. 75, 99 Pac. 517].) So, also, a county ordinance limiting the rate of speed of vehicles upon bridges to five miles an hour is not in conflict with a state of law fixing a higher rate as the maximum
[651]
speed limit thereon.
(Ham
v.
Los Angeles Co.
(Cal. App.), 189 Pac. 462.) And a city ordinance requiring that automobiles overtaking a street-car which has stopped to discharge passengers shall stop ten feet behind the street-car does not conflict with a general law requiring an automobile approaching or passing such car to be operated with due care and caution and to come to a full stop, if reasonably necessary for the safety of such passengers.
(Mann
v.
Scott,
180 Cal. 550, [182 Pac. 281].) This proposition is apparently conceded by the majority opinion. It does not purport to overrule the decisions above cited, though, in my opinion, it wholly disregards them. The soundness of the principle is obvious and the reasons for it are nowhere better stated than in
Ex parte Hoffman, supra,.
They need not be here repeated. The present case, upon this point, cannot be distinguished from
Ham
v.
Los Angeles Co., supra.
A petition for rehearing in this court in that case on that point was denied and it is virtually a decision of this court.
Another rule equally sound and obvious is that the legislature cannot, by general law, purporting merely to forbid the exercise by a county, city, town, or township of the police powers conferred upon it by section 11, article XI, of the constitution, take away or impair such local police power. This, also, the majority opinion admits. It is too plain for argument that the “general laws,” in order to conflict with such local police regulations, must themselves contain regulations applicable to the same subject and inconsistent with the local regulations. A general law which does not in itself regulate a particular act, but which expressly or by implication, provides that there shall be no local regulation thereof, would be a legislative attempt to nullify the constitutional grant to the local bodies politic, and would be to that extent, invalid. In such a ease the local power would remain and local regulations would be valid.
The Motor Vehicle Act declares that “limitations as to the rate of speed herein fixed shall be exclusive of all other limitations fixed by any law of this state of any political subdivision thereof.” (Stats. 1917, p. 406; sec. 22, subd. (d).) It is admitted that this provision, if taken by .itself, is void, so far as it relates to the local speed regulations of a city. The provision immediately following it, to the effect that local authorities may not make regulations “in any way
[652]
in conflict with, contrary to or inconsistent with” the provisions of the act is itself inoperative, so far as it purports to limit such local authority, for it is a mere repetition of the constitution on that point. In order to limit the powers of cities the law must provide regulations inconsistent with, and not merely prohibitive of, city regulations.
The majority opinion, while admitting that the legislature cannot, by its mere declaration, forbid the exercise by a city of its police power under section 11, article XI, concludes that it can do so indirectly, in the matter of speed, by first fixing the maximum speed allowable in certain described conditions, and then declaring its own limitations to be “exclusive of all other limitations.” This it finds to be the equivalent of a law affirmatively authorizing any speed up to the specified máximums under the respective conditions; and it declares that such an enactment by the legislature “is clearly within the scope of their constitutional power.”
• I am unable to see why the original admission does not destroy the final conclusion on this point. The fact that more than twenty miles an hour is unsafe in closely built-up territory and must for that reason be forbidden there (and this is the effect of that clause of the act), is in no wise inconsistent with the fact that more than fifteen miles an hour is unsafe upon a bridge, or with the fact that more than ten miles an hour is unsafe in going over a high and crooked bridge. Hence the legislative declaration that no one shall go more than twenty miles an hour along a road closely built up does not conflict with the municipal declaration that it is unsafe for anyone to go more than fifteen miles an hour over any bridge or more than ten miles an hour over a certain bridge which is high and crooked. Just as richer milk is better than poorer and may therefore be required by local authority, notwithstanding the general law fixing the lower standard, so the slower speed is safer than the higher speed upon bridges and may be required by local authority, notwithstanding the general law fixing a lower standard of safety. The additional legislative declaration that its own limitation of speed shall be exclusive of all municipal speed limitations is entirely distinct and separable from the regulatory clause, and is nothing but a legislative attempt to prevent a city from exercising the police power given to it by the constitution.
[653]
This difficulty was apparently perceived, though not admitted, by the majority, for the conclusion that the Motor Vehicle Act prevails over local speed regulations is finally put upon the ground that by another provision of the act the “state legislature has occupied the whole field of traffic regulation,” leaving nothing for the local authorities to regulate. This provision is found in the opening clause of section 22 and it reads as follows:
“Any person operating or driving a motor or other vehicle on the public highways shall operate or drive the same in a careful and prudent manner and at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway, and no person shall operate or drive a motor vehicle or other vehicle on a public highway at such a rate of speed as to endanger the life or limb of any person or the safety of any property;
provided,
that it shall be unlawful to operate or drive at a rate of speed” in excess of certain maximum rates fixed for particular conditions described, including the twenty miles an hour provision in question.
There are, in my opinion, two reasons showing that this clause does not “occupy the whole field” as the majority of the justices say it does.
First, the other provisions of the section force the conclusion that the legislature itself did not so understand it, and especially that it was not considered a sufficient regulation to meet the varying needs of different local conditions, particularly upon bridges. The same subdivision contains a further proviso purporting to authorize the state highway commission to establish “the maximum rate of speed over any
bridge,
dam, trestle, culvert, causeway or viaduct,” at less than the “rate established by law,” whenever in its judgment the safety of the persons or the protection of the highway “shall be promoted thereby.” If the act had already “occupied the whole field” of- regulation, there would have been no occasion for this clause. The insertion thereof in the act shows conclusively that the legislature did not believe that the opening clause in connection with the maximum speed clauses following it, “occupied the whole field” of speed regulation, but did believe that further speed regulations adapted to local conditions would be necessary to insure or promote the safety of persons and property, and
[654]
that for that reason it attempted to empower said eommission to prescribe the regulations appropriate to the varying local needs.
Second, the language of the opening clause is too vague, uncertain, and indefinite to constitute a sufficient definition of a public offense. Who shall decide whether the rate of speed is “greater than is reasonable and proper,” or so great as “to endanger the life” of a person or the safety of property, in the particular circumstances? The conditions are often very complicated. The driver at a crowded crossing, for example, is generally confronted with the necessity of choosing between several alternatives and must decide in an instant which alternative to take and at what speed to drive to escape the greater danger. The clause reads like an instruction to a jury in an action for damages, rather than a penal statute laying down a rule of action for the future and defining the kind of acts that are to be denounced as criminal. It calls for the constant application of the well-known rule that a person suddenly meeting an unexpected danger is not expected to choose his alternatives as wisely as one having time for observation and deliberation, or as a jury reviewing his conduct in the light of the often conflicting and always confusing testimony of excited eye-witnesses. One person might believe the speed excessive, another that it was too slow. The ultimate decision by a jury or judge could never be foreseen. Two persons might participate in the same act of driving and might be tried separately. One jury would deem the speed dangerous and convict one of them; another jury, upon the same evidence, might believe it safe, or reasonably “careful and prudent,” and so acquit the other participant. The provision, in its practical effect, with regard to speed, is that no person shall drive at a speed which .the jury that tries him, upon hearing the evidence, shall consider fast enough to endanger life, limb, or property. No person could know whether or not he had committed an offense, until after the verdict. The rule is that penal statutes are strictly construed and that in order to be valid the offense must be so defined that a person of ordinary understanding may know therefrom when he is violating its provisions.
(Ex parte Jackson,
45 Ark. 158;
Czarra
v.
District of Columbia,
22 App. D. C. 443;
State
v.
Gaster,
45 La. Ann. 636, [12 South. 739];
Augustine
v.
State,
41 Tex.
[655]
Cr. Rep. 59, [96 Am. St. Rep. 765, 52 S. W. 77].) “Every man should be able to know with certainty when he is committing a crime.”
(United States
v.
Reese,
92 U. S. 220, [23 L. Ed. 563, see, also, Rose’s U. S. Notes].)
It is open to at least grave doubt whether or not the legislature intended to declare a violation of this clause to be a criminal offense, at least with regard to bridges. Section 32 declares that any person who violates any provision of the act is guilty of a misdemeanor. But the opening clause of section 22 does not forbid any specific rate of speed and the section contains no express prohibition of speed less than the respective máximums specified therein. It leaves all lower speeds over bridges and the like, as we have seen, to the regulation of the commission. Since section 32 does not declare it to be a misdemeanor to violate a regulation of the state highway commission on the subject, it is reasonable to suppose that the mere act of driving over a bridge, contrary to such regulation of the commission, was not intended to be denounced as criminal.
If the provision of section 22 purporting to empower the commission to prescribe lower rates of speed over bridges, in connection with the penal clause of section 32, was intended to make the violation of a regulation of the commission a misdemeanor, and was valid in that respect, it might be argued with much force that the “whole field of regulation” was occupied by the general law. But if that provision of section 22 is so intended, it is invalid. It is an attempted delegation to the commission of the legislative power to define criminal offenses and as such it is beyond the power of the legislature. All legislative power is vested by the people in the legislature and in local political subdivisions of the state. (Const., art. IV, sec. 1; art. XI.) The function of defining public offenses requires the exercise of a discretion which the people have committed exclusively to the legislature and the local authorities named. It cannot be transferred by the legislature to any state commission of its own creation. No proposition is better settled than this.
(People
v.
Parks,
58 Cal. 624;
Ex parte Cox,
63 Cal. 21;
Harbor Commrs.
v.
Excelsior Co.,
88 Cal. 491, [22 Am. St. Rep. 321, 26 Pac. 375];
Ex parte Wall,
48 Cal. 313;
Hardenburg
v.
Kidd,
10 Cal. 402;
Ford
v.
Harbor Commrs.,
81 Cal. 36, [22 Pac.
[656]
278]; Cooley on Constitutional Limitations, p. 163; 12 Corpus Juris, 839.)
Furthermore, the regulation and control of the use of streets within a city should not be made a matter exclusively of general concern, but should be classed as, at least in part, a “municipal affair, ’’ within the meaning of .that phrase as used in section 6, article XI, of the constitution. The cities lay out and improve the streets and build the bridges and viaducts. The cost is paid out of funds raised either by general city taxation or by assessments on adjacent private property specially benefited. It is settled that the doing of i these things is a municipal affair in which city ordinances prevail over general laws.
(Sunset Telephone etc. Co.
v.
Pasadena,
161 Cal. 281, [118 Pac. 796];
Byrne
v.
Drain,
127 Cal. 663, [60 Pac. 433];
Fritz
v.
San Francisco,
132 Cal. 376, [64 Pac. 566];
Banaz
v.
Smith,
133 Cal. 102, [65 Pac. 309];
Duncan
v.
Ramish,
142 Cal. 696, [76 Pac. 661].) The cities have the power and it is their duty to keep in repair the city streets, bridges, and viaducts. As a part of that power they should have the right to make all regulations' concerning their use that are reasonably necessary to protect them from injury, and so keep down the expense of repairs. They cannot effectively do this if the state may by general laws provide exclusive regulations. The conditions of local use and local situations will of necessity be so variable, and will be subject to such frequent changes in different parts of the state, that no general law could be framed that would adequately provide for the necessities of each case. Again, many different uses are made of streets that are peculiar to cities and which vary in different cities, according to local customs and desires, such as the projection of awnings, the setting of poles for power and lighting wires and lamps, the laying of conduits and car-rails, and the excavation of areas under sidewalks for access to basements. All of these are held to be municipal affairs upon which ordinances of a city operating under a freeholder’s charter are superior to general laws.
(Sunset Telephone etc. Co.
v.
Pasadena, supra.)
This well-considered case appears to have escaped the notice of the majority. Yet if the majority opinion expresses the law, that case stands tacitly overruled on that point and it is within the power of the legislature at any time to enact a general law attempting to regulate all
[657]
such uses, and such law would supersede and suspend all municipal ordinances on the subject in every city in the state. The present Motor Vehicle Act concedes' to each city the right to regulate traffic at crowded street crossings therein. But if the majority opinion is correct, this is not a municipal affair, and the state could make its own regulations for such places, and provide its own officers to enforce them and if the regulations proved wholly inadequate, or the enforcement thereof wholly inefficient, the only recourse of the people of the city would be to await the next sitting of the legislature, in the hope that out of the inevitably conflicting demands of different localities some sort of relief would be provided by a general law. It is, in my opinion, indisputable that in this state regulations of this kind have always hitherto been regarded as "municipal affairs,” and that that phrase was so understood and used in the amendment of section 6, article
XI,
in 1896, with the intent to make such regulations paramount to general laws.
Angellotti, C. J., concurred.