Posted by Orin Kerr (on leave):
19th Century Traffic Law:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1248902305
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 [1]profound jurisprudential questions as whether a [2]horse
counts as a vehicle, or perhaps a [3]wheelchair, or maybe a
[4]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 railroad that went through the town of Nashua, New
Hampshire.
The New Hampshire Supreme Court ruled that the statute did in fact
apply to the railroad:
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.
I'm not sure the interpretation is persuasive to me, but it's
interesting to note that it was decided at about the same time as one
of Justice Scalia's favorite targets for non-textualist statutory
interpretation, [5]Holy Trinity Church v. United States, 143 U.S. 457
(1892). Persuasive or not, it's an interesting case.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1143645
2. http://www.msnbc.msn.com/id/17953259/
3. http://www.cbsnews.com/stories/2008/06/23/world/main4201627.shtml
4. http://www.youtube.com/watch?v=RNPxIibhcKY
5. http://supreme.justia.com/us/143/457/case.html
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