Summary
quashing speeding charge where speed limit sign was not validly posted
Summary of this case from State v. DownsOpinion
No. 3322.
May 5, 1942.
The provisions of P. L., c. 103 as amended by Laws 1937, c. 125, ss. 1, 2 and by Laws 1939, c. 130, ss. 2, 3, as to the fixing of speed limits by the Commissioner of Motor Vehicles does not confer authority upon him to determine speed limits in those areas where definite provision as to speed limits is made by the statute itself, i.e., when in any business district, or in any urban residence district or in any rural residence district (Laws 1939, c. 130, ss. 1, 2). The provision of Laws 1937, c. 125, s. 2 that speed in excess of that determined by the Commissioner "shall be prima facie evidence that such speed is not reasonable and safe" is not applicable to prosecutions for unreasonable speed in business or residence sections as defined by Laws 1939, c. 130, ss. 1, 2, for over such sections the Commissioner has no jurisdiction. Information for driving at an unlawful speed on a highway in violation of P. L., c. 103, s. 17, as amended, charging that such driving occurred "in a district in which the speed limit was twenty-five miles an hour said limit having been duly determined by the Commissioner of Motor Vehicles and signs having been duly erected indicating such speed limit," and that the respondent "did then and there operate said motor vehicle . . . at a speed greater than was reasonable and safe to wit forty miles per hour." The information is invalid and on motion should be quashed, because the speed limit at the locus in quo was fixed by statute and the determination of the speed limit by the Commissioner was without legal effect. Where a prosecution is for driving in a section where the speed limit has been lawfully determined by the Commissioner, the rule determining the burden of proof is more favorable to the State than in sections where the speed is fixed by the statute. The Commissioner's mere knowledge of the action of the director of safety in posting the speed limit does not constitute that formal determination of the speed limit which the statute requires. Laws 1937, c. 125, assigning to the Commissioner of Motor Vehicles the determination of speed limits for those sections of the highways not capable of general classification is a constitutional authorization of legislative power.
INFORMATION, for a violation of Laws 1937, c. 125, s. 1, alleging that the defendant "unlawfully did operate a motor vehicle upon a public highway, to wit, Pleasant Street" in Concord, "in a district in which the speed limit was twenty-five miles an hour, said speed limit having been duly determined by the Commissioner of Motor Vehicles and signs having been duly erected indicating such speed limit." The defendant's motion to quash the information was denied subject to exception. Facts agreed.
The alleged offense occurred on September 29, 1941, within an alleged zone the westerly limit of which was marked by a sign reading, "Speed 25." The defendant was driving westerly toward his home, which was situated easterly of the sign in question.
The sign was erected on September 17, 1941, at the request of Malcolm Wilkins, director of safety for the State Motor Vehicle Department. Wilkins had been requested by the Commissioner of Motor Vehicles to take charge of the determination of speed limits and the location of speed-limit signs throughout the State. Having determined that twenty-five miles an hour was a reasonable and safe speed limit on that section of Pleasant Street between the thickly settled portion of the city and a point about three-eighths of a mile west of the defendant's residence, Wilkins located the sign at that point and filled out a sign-location card, which was forwarded to the State Highway Department. Employees of that department erected the sign in accordance with the location card and made a notation on the card to that effect. The card was then filed in the records of the Motor Vehicle Department. The card was never signed by the Commissioner of Motor Vehicles, nor was Wilkins' determination ever formally approved by the Commissioner, although the Commissioner knew of the action which Wilkins had taken.
Section 1 of chapter 125 of the Laws of 1937 provides as follows: "No person shall operate any motor vehicle upon any public highway of this state at any rate of speed greater than is reasonable, having regard to the width, traffic and use of such highway, intersection of other highways and weather conditions or so as to endanger the property or life or limb of any person. The commissioner of motor vehicles may determine a speed limit which is reasonable and safe on any public highway or bridge and may erect, or cause to be erected, signs indicating such speed limit."
It is also provided (Laws 1937, c. 125, s. 2) that "Any speed in excess of such limit shall be prima facie evidence that such speed is not reasonable and safe but the fact that the speed of a vehicle is lower than such limit shall not relieve the operator from the duty to decrease speed when a special hazard shall exist with respect to pedestrians or other traffic or by reason of weather or highway conditions and speed shall be decreased as may be necessary to avoid collision with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements of all persons to use due care."
This section, as amended by sections 2 and 3 of chapter 130 of the Laws of 1939, further provides as follows: "It shall be prima facie lawful for the driver of any vehicle to drive the same at a speed not exceeding the following but in any case when such speed is found to be unsafe it shall not be lawful:
"I. Fifteen miles per hour when passing a school during school recess or while children are going to or leaving school during opening or closing hours.
"II. Twenty miles per hour in any business district.
"III. Twenty-five miles per hour in any urban residence district.
"IV. Thirty-five miles per hour in any rural residence district."
The question, "What legal effect is to be given to said speed limit sign and to said speed limit as determined by Wilkins?" was transferred by Lorimer, J., in advance of further proceedings.
Frank R. Kenison, Attorney-General, and Raymond K. Perkins, County Solicitor (Mr. Kenison orally), for the State.
Robert W. Upton and Richard F. Upton (Mr. Richard F. Upton orally), for the defendant.
Chapter 125 of the Laws of 1937, as amended by chapter 130 of the Laws of 1939, is a comprehensive statute designed to lessen the dangers of highway travel. It prescribes speed regulations for common areas such as business and residence districts and assigns to the Commissioner of Motor Vehicles the task of determining "a speed limit which is reasonable and safe" for sections of the highways not capable of general classification. The assignment of this duty to the Commissioner is not an invalid delegation of legislative power. Musgrove v. Parker, 84 N.H. 550, 552, and cases cited; Conway v. Water Resources Board, 89 N.H. 346, 352, 353.
It should be noted that the statutory prohibition is merely against unreasonable speed and that speed in excess of that designated as reasonable and safe either by the Commissioner or by the statute itself is not forbidden. The statute provides, however, that speed in excess of that determined by the Commissioner "shall be prima facie evidence that such speed is not reasonable and safe" — evidence, in other words, "sufficient to invoke the judgment of the trier of fact, and to support a verdict if one be found." State v. Lapointe, 81 N.H. 227, 236. No such rule is made applicable to prosecutions for unreasonable speed in business or residence districts.
As the facts of the present case are understood, the alleged offense occurred in an urban residence district over which the Commissioner had no jurisdiction. The statute expressly provides that it shall be prima facie lawful for the driver of any vehicle to drive the same at a speed not exceeding twenty-five miles an hour in such a district, and it could not have been the legislative intent to confer authority on the Commissioner to determine speed limits in those areas where definite provision as to speed is made by the statute itself. See Merchants c. Co. v. Egan, 91 N.H. 368, 370; Continental Ins. Co. v. Charest, 91 N.H. 378, 380.
While it is true that the speed limit alleged to have been established by the Commissioner in the present case is the same as that authorized by the statute in an urban residence district, the rule relating to the burden of proof would be more favorable to the State if it were a fact that the speed limit had been lawfully determined by the Commissioner.
Furthermore, even if the Commissioner had authority to determine the speed limit for the area in question and could properly delegate to his director of safety the duty of investigation and recommendation, definite acceptance of the director's recommendation would be essential, and the Commissioner's mere knowledge of the director's action would not constitute that formal determination of the speed limit which in our opinion the statute requires. See Morgan v. United States, 298 U.S. 468, 478, 479; West Springfield v. Mayo, 265 Mass. 41, 44; Elite Dairy Products, Inc. v. Ten Eyck, 271 N.Y. 488, 498.
This conclusion makes it unnecessary to consider the other arguments which defendant's counsel have advanced.
The Superior Court is advised that the determination of the speed limit by the director of safety was without legal effect, and since the agreed statement of facts (in effect a bill of particulars) is inconsistent with the material allegations of the information, the order must be
Information quashed.
All concurred.