with whom
TAYLOR, Justice, concurs(dissenting):
*452I.C. § 49-701, under which appellant was charged, was first enacted in 1953 (S.L. 1953, Ch. 273, Sec. 56), and later amended in 1955, (S.L.1953, Ch. 84), in particulars not involved herein. S.L.1953, Ch. 273, was taken from the Uniform Act Regulating Traffic on Highways, approved and recommended by the National Committee on Uniform Traffic Laws and Ordinances and endorsed by the National Conference of Commissioners on Uniform State Laws. Martindale-Hubbel Law Directory, Vol. Ill, Law Digests, 1952. I.C. § 49-701 corresponds to Art. VI, § 56, of the Uniform Act.
Prior to enactment of I.C. § 49-701, the law governing the speed of motor vehicles was I.C. § 49-504 (Vol. 9 of original 1947 I.C.) which provided:
“a. Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.
“b. Subject to the provisions of subdivision (a) of this section and except in those instances where a lower speed is specified in this chapter, it shall be prima facie lawful for the
driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.
* Hs *
[Then follows seven separate categories of conditions with authorized speeds of 15 to 20 miles per hour for the various conditions specified, which are eliminated herein in the interest of brevity].
“It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitation, except as provided in subdivision (c) of this section. In every charge of violation of this section the complaint, also the warrant or notice to appear, shall specify the speed at which the defendant is alleged to have driven, also the speed which this section declares shall be prima facie lawful at the time and place of such alleged violation.
“c. Local authorities in their respective jurisdictions are hereby authorized in their discretion to increase the speed which shall be prima facie lawful upon through highways at the entrances to which vehicles are by ordinance of such local authorities required to stop before entering or crossing such through highways. Local authorities shall place and maintain upon all through highways upon which the per*453missible speed is increased adequate signs giving notice of such special regulations and shall also place and maintain upon each and every highway intersecting any said through highway, appropriate stop signs which shall be illuminated at night or so placed as to be illuminated by the headlights of an approaching vehicle or by street lights.”
The majority opinion has set out a portion of I.C. § 49-701, i. e., paragraphs (a) and (b) thereof. In addition to these two paragraphs, there is a third paragraph, which provides:
“(c) The driver of every vehicle shall, consistent with the requirements of paragraph (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”
The Department of Highways is authorized by I.C. § 49-702 on the basis of engineering and traffic investigations to fix and cause to be posted prima facie speed limits at variance with the provisions of I.C. § 49-701.
The majority opinion has reached the conclusion that under the stipulation before the court that the appellant has as a matter of law rebutted the presumption of I.C. § 49-701 (b), that speed in excess of 60 miles per hour is prima facie evidence that the speed is not reasonable or prudent and that it is unlawful. The pertinent portion of the stipulation states:
“That there is a U. S. Highway running in a westerly direction from Ham-met, Idaho, to a point four miles east of Mountain Home, Idaho, which is designated as U.S. Highway No. 30, and which said highway has an oiled surface and is divided into two traffic lanes by a painted center stripe at the place and point at which the alleged offense occurred in this matter.
“That on the 29th day of January, 1964, the defendant Albert E. Trimming, was driving and operating a 1963 Plymouth automobile on said highway, proceeding in a westerly direction in the right-hand lane of traffic from Hammet, Idaho, to Mountain Home, Idaho, at 1:30 p. m. on said day; and that on said highway approximately four miles east of the City of Mountain Home in Elmore County, Idaho, on said day and at said time, the defendant drove and operated said Plymouth automobile at a speed of 75 miles per hour over and on said highway for a distance of one-half mile; and that at said time *454and place, and on said highway, the said1 highway is a speed zone for speeds not in excess of 60 miles per hour and is so posted and said speed zone is fixed by State statute not by local authority.
- ■ “That the said defendant at said time and place was arrested by Officer B. J. 'Shinn and given an Idaho State police citation for driving the vehicle at the speed of 75 miles per hour, which is in excess of the speed zone as posted aforesaid.”
To reach this conclusion of the majority opinion it is necessary that the first phrase of' sub-paragraph (b) “Where no special hazard exists that required lower speed [etc.],”.-be disregarded. It is my conclusion in' a prosecution under the provisions of I.C. § 49-701 (b), such phrase removes from consideration by the court any issue as to the presence or absence of special hazards. Additional weight is also given to this conclusion by use of the similar phrase in sub-paragraph (c) which requires a driver to “drive at an appropriate reduced speed * * when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.” The only time that the presence or absence of special hazards would be in issue, is when a person is charged by complaint with having failed to comply with the provisions of I.C. § 49-701(a) or (c).
The three sub-paragraphs of § 49-701, were designed to cover three separate situations : Sub. Par. (a) requires all persons to operate their vehicles in a reasonable and prudent manner under conditions then existing, regardless of any posted speeds or prima facie limits. Even though a person may operate his vehicle at a speed less than the posted or prima facie limits, if conditions are present which would make such lower speed unreasonable and imprudent, such person would be violating that subsection, and to sustain a conviction thereunder, it would be incumbent upon the state to plead and prove the existence of the particular conditions regarding the actual and potential hazards involved, i. e., the conditions in existence at that time.
The Sub. Par. (b), involves speeds in excess of the posted limit. This paragraph is prefaced “where no special hazard exists”, and continues that speed in excess of the posted or stated limits “shall be prima facie evidence the speed is not reasonable or prudent and that it is unlawful.” In a prosecution under this provision no issue is before the court as to existence or nonexistence of any special hazard, for the very first phrase of this paragraph eliminates such facts from consideration.
The Sub. Par. (c) again refers back to (a) and requires a driver to reduce speed when presented with special hazards.
Under the law as it existed prior to enactment in 1953 of the present law, I. C. § 49-701, the facts as to the lack of special hazards presented by the stipulation would have been in issue, and the statement “That *455there were no circumstances other than the rate of speed at which defendant’s vehicle was being driven which would constitute a violation of law” would have been sufficient to rebut the prima facie case.
When the legislature by S.L.1953, Ch. 273, repealed the prior law and enacted I.C. § 49-701, it intended some change in the law. See: Pigg v. Brockman, 79 Idaho 233, 244, 314 P.2d 609; Wellard v. Marcum, 82 Idaho 232, 351 P.2d 482. In State ex rel. Anderson v. Rayner, 60 Idaho 706, 96 P.2d 244, this court held that where a statute is amended by changing language from that used in the original statute, a presumption arises that a change was intended. It is also to be presumed that the legislature in enactment of a statute consulted earlier statutes on the same subject matter. Nampa Lodge No. 1389, etc. v. Smylie, 71 Idaho 212, 229 P.2d 991.
As the statute in question is applied in the maj ority opinion, the changes from the previous law are not considered. Each of the cases relied upon in the majority opinion, and which were cited by appellant, deal with a statute that is similar to the Idaho’s law (I.C. § 49-504) as it existed prior to the present enactment. See: Commonwealth v. Cassidy, 209 Mass. 24, 95 N.E. 214 (1911), and statute: Mass.St.1909, c. 534, § 16; State v. Pfeifer, 96 Kan. 791, 153 P. 552 (1915), and statute: Kansas Laws 1913, c. 65 §§ 7 & 8; People v. Marketos, 54 N.Y.S. 2d 857 (Onondaga County Court, 1945), and statute:. New York’s Vehicle and Traffic Laws § 56; State v. Hale, 109 N.E.2d 588 (Ct.Common Pleas of Ohio, Wood County, 1952) and statute: 6307-21 General Code of Ohio (Laws of Ohio 1951, Vol. 124, pg. 520); Ex parte Moseley, 6 Cal.App.2d 654, 45 P.2d 241 (1935) and statute: Cal.Vehicle Code, §§ 510, 511, St.1939, c. 658; Ex Parte Ryan, 61 Cal.App.2d 310, 142 P.2d 769, (1943), and statute: Cal.Vehicle Code, §§ 510, 511; People v. Perlman, 15 Ill.App.2d 239, 145 N.E.2d 762 (1957), and statute: Uniform Act Regulating Traffic on Highways for the State of Illinois, § 49; State v. Wall, 115 Ohio App. 323, 185 N.E.2d 115, (1962), and statute: Ohio Revised Code § 4511.21. None of the statutes involved in the cases mentioned contained any qualifications, as does the Idaho statute, of “where no special hazard exists.”
As I construe I.C. § 49-701, in all its three sub-paragraphs, the phrase “Where no special hazard exists,” is a qualifying phrase to the whole of sub-paragraphs (b) thereof. This phrase was adopted by the legislature to exclude not only the necessity of a complaint thereunder alleging the existence of any special hazards or circumstances, but also to do away with the necessity of proof of such special hazards or circumstances. To dispel or rebut the prima facie evidence of unreasonable or imprudent speed, which arises on proof of speed in ex*456cess of the posted or fixed limits, a defendant would be required to establish circumstances which would justify such higher speed as being reasonable and prudent, such as the necessity of higher speed to pass a slow moving vehicle, an emergency situation justifying much higher speed; proof of the absence of special hazards or normal highway conditions would not overcome such presumption, in a prosecution under I.C. § 49-701 (b).
It is my conclusion that the judgment of the trial court is correct, and that it should be affirmed.