[Page images: 20 21 22]

Opinion published in L.A.W. Bulletin, July 22, 1887

Opinion, Broady, J., published in L. A. W. Bulletin, July 22, 1887, as to corporate ordinance restricting use of streets by wheelmen.

The defendant was sentenced to imprisonment for riding a bicycle on Fifth street, Beatrice, Neb., and sued out a writ of habeas corpus for release from his imprisonment. The hearing was had before Judge Broady.

The judge discharged the prisoner on the ground that so much of the ordinance as prohibits the simple act of riding a bicycle on certain streets of the city is void because unreasonable. The judge in his oral opinion in substance said:

"It is undoubtedly in the power of the city to regulate the modes of travel by carriage or otherwise over the streets of the city by ordinances, according to the demands for police regulations, which vary according to the variations of the different parts of the city as to density of population, or business, or other condition. But there must be a reasonable cause for each such regulation to make it reasonable. It may, under this power, for sufficient reasons prohibit certain [page 21] modes of travel in certain parts of the city, such as prohibiting omnibus lines on certain streets when the capacity of the street is insufficient for all the travel thereon without great inconvenience, and something taking up much room can be confined to other streets with no unreasonable hardship. Also, giving omnibus stands at depots something in the nature of monopolies to avoid the confusion of crowding carriages, with the understanding as to where any one will drive, stop, or stand. These are but illustrations. The reasons of these ordinances do not obtain in the ordinance in question. There is no pretence that a bicycle occupies too much room on the street, or that the crowd of business thereon will not reasonably admit such way of going. There is no pretence that the bicycle in motion makes a noise to annoyance of others. The sole and single objection is that horses are apt to be frightened at them. This is true of most, if not, all, novel inventions for locomotion until horses have become somewhat familiar with them. I see nothing in the riding of a bicycle unusually calculated to frighten horses except its novelty, which applies to all new methods of travel in a greater or lesser degree until they have become familiar. A new thing so far beyond the comprehension of persons as to be deemed supernatural sometimes strikes some people with terror, and of course horses are more often frightened by novelties because their comprehension is much more limited. But they are equally susceptible of being made familiar with new things, so that there is no fear from them. In the foundation of this ordinance we see traces only to the ignorance of horses, which is hardly a good basis for this ordinance. In the towns and counties where ox teams were common, they would mingle on the highways with horse teams without fright to either. But now teaming with oxen is so nearly obsolete that I would feel constrained to keep a [page 22] firm hold on the lines if on driving on Court Street I should meet a team of oxen. The invention of locomotion with the bicycle is comparatively new, especially in this country, and I am unable to say that the invention has yet reached its maximum merits, or that it may not be a thing of merit in this great age of invention, progress, and improvement. It is, to say the least, a new way of going, and many of those who adhere to older ways will feel aggravated that the new way is permitted; but restraints should not be put upon enterprise or invention simply because they are unlike what we are accustomed to. It is said that the bicycle is a very rapid means of locomotion, and for that reason dangerous in populous places. So is a race horse; and it is a proper ordinance to prohibit his being ridden at full speed in the street, but improper to prohibit his being rode through the street at a proper gait because there is speed in him. So bicycle riding, as to speed and other things, may be regulated by ordinance, but such is not the ordinance in question. Objection is made to the motives of the persons riding bicycles, that it is not to facilitate business, but only for pleasure. If the regulation of the motives of the persons riding bicycles is proper matter for regulation it will require another ordinance, because the one in question does not treat of that subject. Health and happiness are said to be great objects of human actions. Some of the evidence tends to show that bicycle riding is only for exercise and pleasure. I am not able to say that exercise and pleasure in that way may not contribute to both health and happiness. I do not, however, see that it is necessary to investigate that subject. I hold that the ordinance is void because unreasonable, and discharge the prisoner."