The relator was an-ested charged with having operated an automobile in and along West Seventy-second street in the city and county of New York, the territory contiguous to said street being closely built up, at a rate of speed greater than one mile in six minutes, in violation of subdivision 1 of section 3 of chapter 538 of the Laws of 1904, and having been arraigned before a city magistrate he was,held for trial at the Court of Special Sessions. He thercoupon sued out a writ of habeas corpus, and upon the said writ, return .and traverse he was discharged from custody, and from, the order of discharge the People appeal.
Chapter 538 of the Laws of 1904 is entitled “An act in relation to the registration and identification of' motor vehicles and the use of the public highways by such vehicles.” It provides, inter alia, as follows (§ 1, subd. 2): “ Definitions.— *■ * * (2) ‘ Public highways ’ shall include any highway, county load, State load, public street, avenue, alley, park, parkway, driveway-or public place in any city, village or town ; (3) ‘ closely built up ’ shall mean (a) the territory of a city, village or town contiguous to a public highway which is at that point built up with structures devoted to business, (b) the territory of a city, village or town contiguous to a public *647highway not devoted to business, where for not less than one-quarter of a mile the dwelling houses on such highway average less than one hundred feet'apart..”
Section 3, subdivision 1: “ Speed permitted.—(No person shall operate a motor vehicle on a. public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property; or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate than one mile in six minutes, or elsewhere in a city or village at a greater rate than one mile in four minutes, or elsewhere outside of a city or village at a greater rate than one mile in thrée minutes; subject, however, to the other provisions of this act.” Section 4, subdivision 3 : Local ordinances prohibited.— Subject to the provisions of this act, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license or permit to use the public highways, * * * or prescribing a slower rate of speed than herein specified at which such vehicles may be operated, or the use of the public highways, contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no validity or effect,; provided, however, that the local authorities of cities and incorporated villages may limit by ordinance, rule or regulation hereafter "adopted the speed of motor vehicles on the public highways, on condition that such ordinance, rule or regulation shall also fix the same speed limitation ■ for all other vehicles, such speed limitation not to be in any case less than one mile in six-minutes in incorporated villages, and on further condition that such city or village - shall also have placed conspicuously on each main public highway where.the city or village line crosses the same, and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words ‘ Slow down to---miles ’ (the rate being inserted), and also an arrow pointing in the direction where the speed is to be reduced br changed, and also on further condition that such ordinance, rule or regulation shall fix the penalties, for Violation thereof similar to and no greater than these fixed by sueh *648local ■ authorities for violations of speed limitation by any other vehicles than motor- vehicles, which- penalties shall during the .existence of the ordinance, rule or regulation supersede those specified in section six of tins act, and provided further, that nothing in this act contained' shall be construed as limiting the power of local . authorities to make, enforce and maintain further ordinances, rules or regulations affecting motor vehicles which are. offered to the public for hire!”. >
Section 6, subdivision 1: “ Penalties for excessive'speed, et cetera. —- The violation of'any of the provisions of * * * section three * * * of. this act' shall he deemed a misdemeanor' punishable hy a fine not exceeding one hundred dollars for the first offense, and punishable by a fine of not less than fifty dollars nor more than one hundred dollars, or imprisonment not exceeding thirty days, or both, for a second-offense, and punishable by a fine of not "less than one hundred dollars nor more than two hundred and fifty dollars and imprisonment not exceeding thirty days foi’ a third or subsequent offense.”'
There.is no contention but that- West. Seventy-second street in the. city- and county of New York is a public "street and closely built-up,, within the definition of subdivision 2 of section 1 of the act, and that upon such street, under subdivision 1 of section 3 of said act, a greater speed than one mile in six minutes is not per-, mitted, and that a violation thereof'under subdivision 1 of section 6 is a misdemeanor, properly triable at the Court of Special Sessions. Therefore, if .the provisions of this act .alone are .to be taken into consideration, the action of the city magistrate in holding the relator for trial at. Special Sessions was .proper, and the writ of habeas, corpus'should have been dismissed and the relator remanded,..
.The board of aldermen of the city of New York adopted an'd the mayor on the 1.8th of ■ November, 1906, approved the following ordinances: “ Chapter 12, Rules of the road. Section 454 — Speed of 'vehicles.. The following rates of .speed through the .streets of the city'shall not he exceeded, that -is; Eight miles an, hour by bicycles^ tricycles, velocipedes and motor vehicles, however propelled, or hy -passenger and other vehicles, drawn by horses or other animals, except that in portions, of- the city not built up,. where .the' buildings' are at• least 1QQ feet;apart,,,a speed- of fifteen-miles an hour may.be maintained.”
*649“Section 475—Penalties for Violations. Any person violating any provision or regulation hereof shall be deemed guilty of a misdemeanor, and upon conviction thereof by any magistrate-either upon confession of the party or by competent testimony, may be fined for such offense any sum not less than $1 and not exceeding $10,' and in default of payment of such' fine may be committed to prison by such magistrate until the same be paid; but such imprisonment shall not exceed ten days.”
It is claimed that these ordinances were passed in conformity to the authority given by. the Motor Vehicle Law (§ 4, subd. 3,supra), and as the ordinances were passed subsequent to the act under consideration, and fixed the same speed limitations for all-vehicles, and provided penalties for violations thereof similar "to and no greater. than those fixed for violations of the jrpged limitation by any other vehicles than motor vehidgs^-tbafT the said ordinances by virtue of the provisions of tlie^cbfsuperseded the provisions of the same in the city of NewyV'ork, no greater fine than ten dollars could be imposed - for toy offense, the trial of such offense must be a summary ojie before a city magistrate as for a violation of a city ordinanpfi^-the Court of Special Sessions had no jurisdiction, and, therefore,. the relator was unlawfully deprived of his liberty and shoold be discharged.
/Whatever this court might think of the inadequacy of the punishment provided by the ordinance for driving motor vehicles at an Excessive speed in the city of New -York, or however much it 'might regret that imprisonment for repeated offenses was abolished, if the board of aldermen had the.power to pass the ordinances alluded to and had conformed to the provisions of the statute,'the question of the adequacy or inadequacy of the penalties, or the wisdom of the .omission of imprisonment for repeated offenses, would not be questions of judicial concern. ' They would be purely legislative, and the function of the courts would be confined to the interpretation and enforcement of such legislative commands.
I am of the opinion, however, that upon this record the penalties provided by the Motor Vehicle Law (Laws of 1904, chap. 538) are in full force and effect; that the relator was properly held for trial at the Court of Special Sessions as for a misdemeanor, and that the order discharging him from custody was error and should be reversed.
*650The Motor Vehicle Law was passed really'in the interests of automobilists. The'various rules, regulations and, ordinances in the many villages and cities of the: State upon the various subjects of licenses, speed and penalties were, so numerous, conflicting and confusing. that the persons interested in the .subject appealed to and succeeded in having passed by the Legislature a general act under which an automobilist' in any part'of the State would know exactly what his restrictions- and his liabilities were, and the act expressly repealed all ordinances, rules or regulations theretofore hr effect. The act permitted local authorities to thereafter pass'ordinances, rules-- and .regulations in regard to the speed of motor vehicles on the public'‘high ways under three express- conditions: First, that such ordinances, rhlesjoi- regulations should fix the same speed limitations for all other vehicles^ third, tjjat such ordinances, rules or regulations should fix the penajties'fmuyiolation thereof similar to. and no greater than those fixed by such locals authorities for violations of the speed regulations for such other yblncles than'motor vehicles. . ' ^ "■ ' ''v
It is true that the ordinance under consideration, hi. the case at bar does fix the same speed limitatioji for all other vehicles as for motor vehicles, and it is-true that said ordinance fixes the peisulties for violation thereof by motor vejiiclfS no greater than those n^ed for other vehicles. . -' A ■'
But there, is another condition in ¿the statute contained in tBp same paragraph of the same subdivision- of the same section, between the first and the third conditions alluded to supra, namely, “And! on further condition that such city or village shall also have placed! conspicuously on each main public highway where the city or village line, crosses the same and on every main highway where the .rate of speed changes, signs of sufficient sizo^o be easily readable by a person using the highway, bearing the words ' Slow -down to-miles’ (the rate being inserted), and. also ah arrow pointing in, the direction where, the speed is to be: reduced or -changed.”
There is no evidence- in this Case that this condition has been complied with, and as the operation of the ordinance, by the provisions of the act, is dependent upon the performance of each condition, the failure to perform the condition as to the pésting. of sighs is as fatal to the enforcement-of the ordinance as would have *651been the omission therefrom of either of the other conditions as to uniformity as to speed limitations to all vehicles, or as to penalties for the violation of speed limitations for all kinds of vehicles. The language of the condition is that “ such city or village shall also have placed conspicuously,” etc. There is no evidence that the city of New York lias placed any such signs.
The exception or proviso or condition is' contained in a distinct clause from that containing the provision for a punishment for violation of the act and, therefore, as stated by Mr. Wharton (Crim. Law [6th ed.], § 378), “If provisos and exceptions are contained in' distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the provisos it contains, * * * for all these are matters of defence which the prosecutor need not anticipate, but which are more properly to come from the prisoner.” Therefore, the burden was upon the relator to establish the validity of the ordinance and that it had become effective as in conformity with the conditions prescribed by the Legislature. This he has failed to do.
It follows,,therefore, that it having been made to appear to the committing magistrate that there was reason to believe that the relator was guilty of the offense charged under a valid law, he was properly held for trial at the Court of Special Sessions.
The order appealed from should be reversed, the writ of habeas corpus dismissed and the relator remanded to custody.
.Patterson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.