[Orin Kerr (on leave), August 9, 2009 at 11:23pm] Trackbacks
19th Century Traffic Law:
One of the recurring issues in the body of criminal caselaw involving driving violations (such as speeding and drunk driving) is what counts as a "vehicle." If a law prohibits speeding in a vehicle, or driving a vehicle while intoxicated, courts eventually have to grapple with what counts as a "vehicle." These cases pop up from time to time, asking such profound jurisprudential questions as whether a horse counts as a vehicle, or perhaps a wheelchair, or maybe a lawnmower.

  In light of this recurring issue, I was amused to come across a 19th Century case, Bly v. Nashua St. Ry. Co., 32 A. 764 (N.H. 1893), that seemed somewhat similar. The case involved a New Hampshire traffic law that stated, "no person shall ride through any street or lane, in the compact part of any town, on a gallop or at a swifter pace than at the rate of five miles an hour." The question in the case was whether that law applied to a railway that went through the town of Nashua, New Hampshire.

  The New Hampshire Supreme Court ruled that the statute did in fact apply to the railway:
  The statute was enacted in 1792, and has been re-enacted in every general revision of the laws substantially in the same form. Street railways were unknown in 1792. The mode of conveyance for persons then in general use was on horseback. A gallop is a favorite gait for such riding. But the mode of conveyance was a mere incident of the mischief to be remedied. This consisted of the danger to which the life and limbs of persons using a street or lane were exposed by the fast riding of others, whatever be the mode of conveyance. The object of the statute was to remedy the mischief; and it was to be accomplished by preventing fast riding generally, not fast riding on horseback in particular. The words used are general: "No person shall ride * * * at a swifter pace," etc. The means of riding may be any that is in use while the statute is in force.

  The driving of cars over steel or iron rails is attended with greater danger to others using the streets than the driving of ordinary vehicles over their uneven surfaces. As cars are heavier than ordinary vehicles, and there is less resistance to their motion, their momentum is not so easily controlled, and causes more serious consequences when they come in collision with objects. Being confined to a fixed track, they cannot be turned aside to avoid collision. They have a tendency to frighten horses, especially when propelled by steam or electricity. . . .

  If the general law does not apply to the defendants, they may drive their cars at any rate of speed, however great, until the mayor and aldermen establish regulations for their government, while a person riding upon horseback or in a carriage cannot drive across, along, or in the vicinity of their tracks at a swifter pace than five miles an hour, without subjecting himself to liability to be fined or imprisoned. Such inequality would be arbitrary and unreasonable.