Petitioner was charged with the offense of driving an automobile within the limits of the city of Pasadena on the 28th of April, 1919, in violation of a municipal ordinance of the city of Pasadena prohibiting a greater rate of speed than fifteen miles an hour at the place in question. It is stipulated that the Motor Vehicle Act of 1917 (Stats. 1917, p. 382), then in force, permitted the driving of a motor vehicle at a speed not exceeding twenty miles an hour at that place, and that the petitioner was not exceeding that limit. The Motor Vehicle Act of 1917 not only fixed the maximum rate of speed there at twenty miles an hour, but expressly prohibited municipalities from fixing as a maximum a lesser rate of speed. (Motor Vehicle Law, Stats. 1915, p. 397; Stats. 1917, sec. 22, subd. (d), pp. 382, 406.) If there is a conflict between this statute and the municipal ordinance, the question as to which controls is to be determined by the provision of the state constitution. When this case was originally presented it was conceded by the parties that there was a conflict between the city ordinance and the Motor Vehicle Act, and that the sole question involved in the case was whether the municipal ordinance should prevail over the statute because the matter of the regulation of traffic upon the streets of cities was a municipal affair within the meaning of the constitution, which gave supremacy to cities acting under charters in municipal affairs. (Const., sec. 6, art. XI.) The court having tentatively arrived at the conclusion *Page 638 that the regulation of street traffic within municipalities was not a municipal affair, was impressed with the fact that the attempt of the legislature to prohibit the enactment of municipal ordinances regulating speed might be an unconstitutional interference with the regulatory powers granted by the constitution itself to municipalities by article XI, section 11, of the constitution, which 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." That matter not having been touched upon in the original presentation, the case was placed upon the calendar for reargument, and additional briefs were submitted upon this question. The respondent upon reargument took the position that the ordinance was not in conflict with the state law, and therefore claims that even conceding that the matter of traffic regulation is not a municipal affair, the ordinance is nevertheless valid as an exercise of police power not in conflict with general law. Since the argument of this case several matters have been presented to us bearing upon the questions involved. InHam. v. County of Los Angeles (Cal.App.), 189 Pac, 462, the appellate court, division two, second district, determined that a county ordinance fixing a speed limit at five miles an hour on bridges was not in conflict with the Motor Vehicle Act of 1913 (Stats. 1913, p. 639). An application for hearing in this court was denied. (189 P. 462.) In Mann v. Scott, 180 Cal. 550, [182 P. 281], it was held that there was no conflict between the provisions of the Motor Vehicle Act of 1913, which required that a motor vehicle be operated with due care and caution when it overtakes a street-car which has stopped on a city street to take on or discharge persons, and be brought to a full stop if reasonably necessary for the safety of the passengers, and a municipal ordinance which required that the vehicle in all cases be stopped at a distance of ten feet in the rear of the stopped car. It was held that the municipal ordinance merely imposed new and additional regulations in furtherance of the general purpose of the law. In Helmer v.Superior Court of the County of Sacramento (Cal.App.), 191 P. 1001, decided by the appellate court of the third district, it was held that the regulation of street traffic was not a municipal affair within the meaning of the constitutional *Page 639 provision, and this court having reached the conclusion that it was not a municipal affair denied a petition for transfer to this court. In view of these decisions it will only be necessary for us to briefly indicate our reasons for the conclusion that the regulation of street traffic is not a municipal affair within the meaning of that term as used in the constitution which gives supremacy to the city in municipal affairs. It is the usual practice throughout the United States to delegate to municipalities power to regulate street traffic within the municipality. This practice is followed by the city of Pasadena, whose charter expressly authorizes such control. (Charter of Pasadena, art. VIII, sec. 10, sub. 27; Stats. 1901, p. 906; Id., art. XIII, sec. 1; Stats. 1913, p. 1466.) [1] The streets of a city belong to the people of the state, and every citizen of the state has a right to the use thereof, subject to legislative control. (People v. County of Marin, 103 Cal. 223, 232, [26 L. R. A. 659, 37 P. 203]; Elliott on Roads and Streets, 3d ed., secs. 25, 505, 543, 544, 1112, 1115; 3 Dillon on Municipal Corporations, 5th ed., sec. 1122.) The right of control over street traffic is an exercise of a part of the sovereign power of the state. (Elliott on. Roads and Streets, sections cited, supra.) [2] While it is true that the regulation of traffic upon a public street is of special interest to the people of a municipality, it does not follow that such regulation is a municipal affair, and if there is a doubt as to whether or not such regulation is a municipal affair, that doubt must be resolved in favor of the legislative authority of the state. The rule is that "any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power is denied." (Hyatt v. Williams, 148 Cal. 585, 587, [84 P. 41, 42], citing VonSchmidt v. Widber, 105 Cal. 157, [38 P. 682]; Dillon on Municipal Corporations, secs. 89, 91. See Dillon on Municipal Corporations, 5th ed., secs. 237, 239; Gassner v. McCarthy,160 Cal. 82, 84, [116 P. 73]; Oro Electric Corp. v. RailroadCom., 169 Cal. 466, 477, [147 P. 118]; Hayne v. SanFrancisco, 174 Cal. 185, 186, [162 P. 625]; City of LongBeach v. Lisenby, by 175 Cal. 575, [166 P. 333].) In dealing with a conflict between state and local legislation on the subject of street traffic the supreme court of Oregon inState ex rel. v. Port of Astoria, 79 Or. 1, 10, [154 P. 399, 402], thus expressed the rule: *Page 640 "While the prime purpose is to ascertain and give effect to the intention as expressed in the language employed, yet the two sections now being considered are designed to grant attributes of sovereignty to specified local subdivisions, and, such grant being a limitation on the power of the legislature, it should be strictly construed, as was properly held in Thurber v.McMinnville, 63 Or. 410, [128 P. 43]." The same rule of construction has been applied in dealing with the powers of municipalities in those states which recognize that municipalities have certain inherent powers, and there great reluctance has been expressed to interfere with the legislative assumption of authority in a case where the rights of a municipality were so difficult of ascertainment, "because of the manifest impossibility of indicating any distinct boundary to the powers which may lawfully be exercised by the legislature in matters of local concern; an embarrassment much more serious than can possibly exist in most cases where a distinct and specific inhibition of the constitution is supposed to be disregarded. . . . Under such circumstances, with no unmistakable signs to guide us between the domain of state and local powers, it becomes us to exercise more than the usual caution not to refuse the sanction of judicial authority to legislation which is supposed to have exceeded a boundary so difficult to locate and define." (People v. Common Council ofDetroit, 29 Mich. 108. See, also, People v. Hurlbut, 24 Mich. 44, [9 Am. Rep. 103]; People v. Common Council of Detroit,28 Mich. 228, [15 Am. Rep. 202]; Indiana Ry. Co., v. Calvert,168 Ind. 321, 324, [11 Ann. Cas. 635, 10 L. R. A. (N. S.) 780, 80 N.E. 961].) Under the constitution of Oklahoma it has been held that in municipal matters the charter supersedes the general laws of the state in conflict therewith (Owen v. Tulsa,27 Okla. 264, [111 P. 320]; Lackey v. State ex rel. Grant,29 Okla. 255, [116 P. 913]; Mitchell v. Carter,31 Okla. 592, [122 P. 691]; Oklahoma Ry. Co. v. Powell, 33 Okla. 737, [127 P. 1080]; In re Simmons, 4 Okla. Cr. 662, [112 P. 951], but that such charter cannot conflict with the general laws of the state. (State ex rel. Burns v. Linn, 49 Okla. 526, [Ann. Cas. 1918B, 139, 153 P. 826].) Notwithstanding this holding that the charter powers of the city are supreme in municipal matters, in Ex parte Shaw, 53 Okla. 654, [157 P. 900], it was held *Page 641 that the state law regulating traffic controlled local ordinances in conflict therewith. In a recent case the supreme court of Oregon has held that the ordinances of municipalities are supreme under the constitution of that state and supersede the state legislation on that subject within the municipality. The constitution of that state, however, is so different from ours that that decision is not authority for the construction of our constitution. [3] We, therefore, conclude that the regulation of traffic upon the streets of a city is not one of those municipal affairs in which by the constitution chartered cities are given a power superior to that of the state legislature, but that such power is subject to the general laws of the state, and ordinances inconsistent therewith are invalid.
We will now consider whether or not there is such a conflict. The legislature which met in January, 1915 (Stats. 1915, pp. 397, 410), added the following clauses, which were subsequently incorporated in the legislation of 1917 (Stats. 1917, p. 406) and 1919 (Stats. 1919, p. 223): "Limitations as to the rate of speed herein fixed shall be exclusive of all other limitations fixed by any law of this state or any political subdivision thereof. Local authorities shall have no power to enact, enforce or maintain any ordinance, rule or regulation in any way in conflict with, contrary to or inconsistent with the provisions of this act, . . . and no such ordinance, rule or regulation of said local authorities heretofore or hereafter enacted shall have any force or effect, excepting, however," in certain matters which need not now be considered. It must, of course, be conceded that a mere prohibition by the state legislature of local legislation upon the subject of the use of the streets, without any affirmative act of the legislature occupying that legislative field, would be unconstitutional and in violation of the express authority granted by the state constitution to the municipality to enact local regulations. In other words, an act by the state legislature in general terms that the local legislative body would have no power to enact local, police, sanitary or other regulations, while in a sense a general law, would have for its effective purpose the nullification of the constitutional grant, and, therefore, be invalid. (City of Freemont v. Keating, 96 Ohio St. 468, [118 N.E. 114], holding invalid section 6307 of the General Code.) But it was contemplated by the constitutional provision in question that *Page 642 the state legislature had the absolute right by general law to enact statutes which would have validity in all parts of the state, including municipalities, and, having done so, local laws in conflict therewith ipso facto become void. The legislative declaration that "local authorities shall have no power to enact, enforce or maintain any ordinance, rule or regulation in any way in conflict with, contrary to or inconsistent with the provisions of this act" amounts to no more than the similar constitutional declaration that general laws control municipal police regulations. (Const., art. XI, sec. 11.) If it were to be construed as an attempt to limit the power of local legislative bodies to pass regulations not inconsistent with such general law it would of course be unconstitutional. The provision that "limitations as to the rate of speed herein fixed shall be exclusive of all other limitations fixed by any law of this state or any political subdivision thereof," in so far as it would operate to prohibit municipalities from passing regulations not inconsistent with the general law would for the same reason be unconstitutional. [4] We are bound, however, in the construction of this section of the Motor Vehicle Act to give it a construction which will be both constitutional and effective if it can be done without violence to the language used. It was clearly the intention of the legislature to declare that the limitation upon speed fixed in the law shall be the only limitation controlling the conduct of the driver of a motor vehicle upon the streets and highways of the state. The intent of the legislature in adopting this general scheme for the control of motor vehicles upon the public highways of the state, for the collection of licenses and the appropriation thereof to the improvement of highways, is not to be measured alone by the language used, but by the whole purpose and scope of the legislative scheme. It cannot be doubted that the legislature in enacting section 22(d) with relation to the authority of municipalities to regulate speed intended to occupy the whole field of traffic regulation, and in construing these prohibitory clauses relating to the powers of local legislative bodies, such provisions should not be ignored as unconstitutional, if a reasonable or even a strained construction can be adopted which would give them a constitutional effect. The legislature, however, having complete control of the highways of the *Page 643 state has as much right by general law to make it lawful to travel ten miles per hour as to make it unlawful to travel fifteen miles an hour. It seems to have been the legislative purpose, by the declaration that "the limitations as to the rate of speed herein fixed shall be exclusive of all other limitations," to authorize vehicles to travel at those limits within cities and counties. Indeed, as all the highways of the state are within either counties or municipalities, and as both have the same legislative power under article XI, section 11, of the constitution, the purpose of the legislature to prevent a reduction of speed limits, and a consequent lack of uniformity in such, is apparent. If this was the legislative purpose, such enactment is clearly within the scope of their constitutional power, and local ordinances fixing other and different rates of speed, ipso facto conflict with the state legislation. The difficulty in determining whether or not the state legislature has occupied the whole field of traffic regulation results in part from the form of the legislation. The legislature did not, in terms, authorize a vehicle to travel at any time at the maximum speed limit fixed by the statute for different localities, but prohibited the operation of motor vehicles at any time or place at an unsafe and unreasonable rate of speed (sec. 22[a]) and in effect declares that the speeds of thirty-five, thirty, twenty, fifteen and ten miles an hour are, under circumstances described in the act, unreasonable and unsafe, and, therefore, that it shall be unlawful to operate a motor vehicle in excess of such speeds. It is made a crime to violate any of the provisions of the act (Motor Vehicle Act, Stats. 1917, sec. 32, p. 410; Stats. 1919, sec. 32(a), p. 225), and, therefore, a crime to operate a motor vehicle at a dangerous and unsafe rate of speed at any time within the state. This legislation would seem to occupy the whole field of traffic regulation. But it is contended that in so far as there is an attempt to make criminal the operation of a motor vehicle at an unreasonable rate of speed the law is so uncertain as to be void, and that, therefore, in so far as the statute attempts in terms to make it a misdemeanor to operate a motor vehicle at an unreasonable and unsafe speed the law is unconstitutional and that the city may enact legislation to fill this hiatus in the law. On the other hand, it is argued that the law is valid, and the state having prohibited unreasonable speed, no ordinance of *Page 644 the city can make any different or other prohibition, for the reason that every ordinance must be reasonable, and to prohibit a reasonable speed would be unreasonable, and that, therefore, no ordinance can be enacted except to prohibit the very thing prohibited by the state law, namely, exceeding a reasonable speed. In effect, however, the local ordinance fixing a different speed limit from that contained in the Motor Vehicle Act is a declaration of the local legislative body to the effect that to exceed the limit thus fixed would be unreasonable. This legislative declaration would be binding upon the courts in the absence of a clear violation of the legislative power. Courts go to great extent in upholding the exercise of such power where it exists. (Ex parte McKenna,126 Cal. 429, [58 P. 916]; Ex parte Berry, 147 Cal. 523, [82 P. 44].) In the prosecution for a violation of the state law the question of whether or not the speed traveled is unreasonable and unsafe is a matter for the consideration of the jury, and the scheme of the legislature authorizes the submission of this question to a jury in a criminal case, called to pass upon the guilt or innocence of a person charged with traveling at an unreasonable speed. The effect of a local ordinance is to foreclose the question of the reasonableness of the speed, and to substitute the judgment of the local legislative body for the judgment of a jury. It is evident that the two plans are in direct conflict and that the conflict is a very material one. Under the state law a motor vehicle driver, provided he keeps within the limits expressly fixed by law, is only confronted with the problem of keeping his vehicle at a speed which reasonable men would conclude to be a reasonable speed. While, on the other hand, he is confronted with an arbitrary rule fixed by a local legislative body, so that he would be wholly within his rights in traveling at a speed of 14.9 miles, and violating a criminal law if traveling at a speed of 15.1 miles, whereas, in fact, it might be much more reasonable to travel at a speed of 15.1 miles sometimes on that particular highway than to travel at a slower rate of speed at other times when the traffic was more congested. The tremendous difference between the two systems of legislation is emphasized by the fact that each county in the state has the same legislative power under the constitution (art. XI, sec. 11) as every city. Thus, every highway in the state, as *Page 645 well as every city street, is subject to local legislative control, and while the legislature has authorized the citizens of the state to travel upon the highways thereof at a speed which is not unreasonable and unsafe, every part of a trip from Siskiyou to San Diego would be controlled by arbitrary speed limits fixed by legislative bodies whose action he is presumed to know, but of which he is much more likely to be totally unaware. The difficulty is increased by the fact that while the state legislature meets but once in two years and the people of the state not only take notice of the time and place of the meeting, but make an effort to ascertain the results of its deliberations, in the case of local communities the legislative bodies are frequently in continuous session, and, if not, meet at frequent intervals, and can pass regulations of which the general public has no information and of which the courts, other than the police courts of the particular municipalities, will not take judicial notice. It seems, then, that local legislation which determines the question of what speed is reasonable and which forecloses that question in a judicial investigation, is in direct conflict with the legislative scheme by which that question is left open for the determination of a jury. If the legislature had merely fixed the maximum speed limit, it is clear that local legislation fixing a lesser speed limit would not be in conflict therewith, but would be merely an additional regulation. (Ham v. LosAngeles County (Cal.App.), [189 P. 462]; Ex parte Hoffman,155 Cal. 114, [132 Am. St. Rep. 75, 99 P. 517].) If we seek to uphold the local legislation by concluding that it is not in conflict with the state law for the reason that the ordinance, as well as the state law, prohibits an unreasonable speed, we are met with the proposition that a local ordinance cannot prohibit exactly the same thing prohibited by the state law and still be valid (In re Sic, 73 Cal. 142, [14 P. 405]), and the invalidity of such an ordinance is emphasized by the fact that under the scheme of state legislation contained in the Motor Vehicle Act the fines and penalties imposed for its violation are placed in a special fund for the improvement of highways, whereas if imposed for the violation of a municipal ordinance they go into the municipal treasury. Or, if both are valid, a man by traveling at an unreasonable rate of speed has committed two offenses instead of one — one against the municipality *Page 646 and the other against the state. [5] We conclude, then, that section 22(d) of the Motor Vehicle Act of 1919 evidences an intent on the part of the legislature that the restriction that the speed cannot be unreasonable and unsafe shall be the test of the legality of the speed at any place within the state, and that this involves the right to have that question determined by a jury rather than by a local legislative body.
We have so far assumed that the state law prohibiting an unreasonable speed is not too uncertain to be a valid criminal statute. Numerous authorities are cited upon the question as to whether or not the criminal law therein considered is too uncertain to be enforced. We will not undertake to review the authorities cited on this subject, but will call attention only to those which in our judgment clearly establish the validity of such legislation. In this connection it may be stated that there has been a tendency to a much more liberal construction of such statutes in the more recent decisions, and this may in part be the result of more humane and liberal methods of dealing with those who are convicted of crime, and in part from the wide field now covered by the criminal law. In theStandard Oil Case, 221 U.S. 1, [55 L.Ed. 619, 34 L. R. A. (N. S.) 834, 31 Sup. Ct. Rep. 502, see, also, Rose's U.S. Notes], the supreme court of the United States, in interpreting the anti-trust law, adopted what has been characterized as the "rule of reason," holding that this law "really was not a denial of all restraint of trade, but only a denial of an unreasonable restraint of trade," thus leaving to courts and juries the determination of what restraints of trade were unreasonable. It is scarcely to be assumed that this court would read into a statute by construction a provision which, had it been included therein at the time of its enactment, would have rendered the statute void and unconstitutional, because of the uncertainty involved in the use of the very term read into it by the court, namely "reason." In People v.Pearne, 118 Cal. 154, [50 P. 376], the defendant was charged with killing the deceased by driving through the streets of Biggs in a reckless manner and at a great and unusual rate of speed. It was held proper to submit to the jury the question of whether or not the defendant had committed manslaughter in the performance of a lawful act "without due *Page 647 caution and circumspection." In Schultz v. State, 89 Neb. 34, [Ann. Cas. 1912C, 495, 33 L. R. A. (N. S.) 403, 130 N.W. 972], a provision of a Motor Vehicle Act identical with that of the California law was held constitutional. A similar statute was held constitutional in State v. Campbell, 82 Conn. 671, [135 Am. St. Rep. 293, 18 Ann. Cas. 236, 74 A. 927], and in State v. Schaeffer, 96 Ohio St. 215, [Ann. Cas. 1918E, 1137, L. R. A. 1918B, 945, 117 N.E. 220]. An ordinance similar in terms was held constitutional in Hood W. Furniture Co. v. Royal,200 Ala. 607, [76 So. 965]; Fitzsimmons v. Snyder, 181 Ill. App. 70; People v. Lloyd, 178 Ill. App. 66;Commonwealth v. Cassidy, 209 Mass. 24, [95 N.E. 214];Chrestenson v. Harms, 38 S.D. 360, [161 N.W. 343]. See, also,United States v. Knight, 26 Philippine, 217. [6] Upon the authority of these cases and our own case of People v.Pearne, 118 Cal. 154, [50 P. 376], we must hold that the provision making it unlawful to travel at an unreasonable or unsafe speed and punishing the violation of such law as a crime is valid and constitutional legislation, although there are cases holding to the contrary. (Hayes v. State,11 Ga. App. 371, [75 S.E. 523].) The recent case of Mann v. Scott, 180 Cal. 550, [182 P. 281], is not opposed to the view herein expressed, for that decision is based upon the proposition (180 Cal. 556, [182 P. 283]) that "It follows that a conflict, if any, can exist only upon the theory that the ordinance prohibits that which is affirmatively authorized by the Motor Vehicle Act. In short, the appellants are placed under the necessity of contending that that act affirmatively authorizes motor vehicles to pass a stopping street-car in a city whenever the apparent risk involved in so doing would not deter an ordinarily prudent and careful driver. We do not so construe the statute." In this case the petitioner had a right to drive on the highway at a speed that was reasonable and proper under all the circumstances, and the fixing of an arbitrary speed limit by the city authorities restricted that right and was, therefore, in conflict with that right. If the statute had expressly provided that the driver of a motor vehicle could pass a standing street-car whenever it was reasonable and proper so to do, and thus affirmatively authorize him to proceed, the situation would be more nearly parallel. [7] We conclude that the city ordinance of Pasadena *Page 648 fixing a speed limit of fifteen miles an hour is in direct conflict with the state law and, therefore, void.
It is proper to say that the Motor Vehicle Act purports to authorize the state highway commission to establish less rates of speed than those provided in the law itself in traversing bridges, viaducts, etc. (Motor Vehicle Act, Stats. 1919, p. 221, sec. 22.) No point is made by the parties with reference to this feature of the act, and we deem it unnecessary to consider the questions of law which might result from this situation, in view of the fact that the same has not been argued or presented. We make this observation solely for the purpose of showing that this point has not escaped our attention and that it is not decided.
Petitioner discharged.
Lennon, J., Lawlor, J., and Sloane, J., concurred.