State Ex Rel. F. H. Rand, Jr., Plaintiff in Error, v. C. E. Brogden, Chief of Police of Miami Beach, Defendant in Error, 84 Fla. 520

Ellis, J. Among the ordinances of Miami Beach there is one which provides for the punishment of any person who drives an automobile within the corporate limits of the city under certain conditions. The ordinance is as follows: “SECTION’97,

CHAPTER 5, — ORDINANCES'OF THE CITY OF MIAMI BEACH. ’ “Any person who shall drive any automobile within the ■corporate limits of Miami Beach while in a drunken or in-’ toxicated condition, or who shall be guilty of reckless driving, by driving any automobile or motor vehicle over or upon any sidewalk, boardwalk, or concrete walk in the corporate limits, or by driving at a rate of speed greater than twenty-five miles per hour, or by turning corners, or approaching other automobiles, motorcycles, pedestrians in a reckless manner, shall be punished by a fine of not exceeding .One Hundred Dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment,in the discretion of the Mayor.” The plaintiff in error was arrested and taken into custody by an officer of the city upon the charge of violating the above quoted ordinance.

Mr. Rand applied to the Circuit Court for Dade County for a writ of Habeas Corpus and moved for his discharge upon the return of the Chief of Police, Mr. C. E. Brogden. The court remanded the petitioner and he took a writ of error to that judgment. The petition alleges that Rand was arrested in ‘ ‘ Miami, ’ ’ Dade County. Florida, on the first day of February, 1922, for “violation of

Section 97,

Chapter 5, of the ordinances of the City of ‘Miami Beach’ for driving a certain automobile within the corporate limits of said City of ‘Miami Beach’ at a rate of speed greater than twenty-five miles per hour.” The return of the Chief of Police is in substance that he held the petitioner in custody “under and by virtue of an arrest made by a police officer of said City of Miami Beach, Florida, of F. H. Rand, Jr., for driving an automobile over and upon a public highway in said City of Miami Beach at a rate of speed greater than 25 miles, per hour, in violation of the ordinance attached to the petition,” etc.

The Charter of the city empowers the City Council by ordinance to “regulate the speed at which horses and vehicles of all kinds, automobiles and motorcycles may be driven through the streets,” etc.

It also contains a general welfare clause empowering the Council by ordinance to “regulate any other matter or thing that may tend to promote the health, welfare, prosperity and morals of the City,” and a clause vesting in the City Council all powers and privileges not inconsistent with its charter, “granted to the City Council of cities and towns by. the general laws of the state and shall have power to do and perform all things necessary for the government of the city not inconsistent with the constitution and laws of the United States, the constitution of the State of Florida, and the terms and provisions of this act.” See

Chapter 7672, Acts 1917. It is contended by plaintiff in error that the ordinance under which he was arrested is void, because it is too broad in its scope in that it undertakes not to regulate the speed of automobiles upon the “streets, sidewalks, alleys,” only but it is broad enough in its provisions to embrace any spot, private track, play ground or private estate in the city.

Several cases are cited in support of the point that a city empowered by its charter to regulate the speed at which automobiles may be driven through its streets, may not pass a valid ordinance regulating the speed at which an automobile may be driven “within the corporate limits” of the city. It is contended that such an ordinance would be operative upon private property to which the authority of the city did not extend in the matter, that it would invade’the right of citizens by including -in its scope property over which it had no control..

There are two classes of persons with which the ordinance -deals, viz: Persons who while intoxicated drive automobiles within the corporate limits; and persons guilty of reckless driving. The latter class is declared to consist of those who may drive automobiles or motor vehicles upon any sidewalk, boardwalk or concrete walk in the corporate limits; those who drive such vehicles at a rate of speed greater than twenty-five miles per hour; and those who when in turning corners or appraching other automobiles, motorcycles or pedestrians do so in a reckless manner.

The charge against the plaintiff in error was in effect that he was guilty of reckless driving by ‘ ‘ driving . an automobile over and upon a public highway in said city of Miami Beach at a rate of speed greater than twenty-five miles per hour. ’ ’ The ordinance is penal in character and should therefore receive a strict construction, or a reasonable construction and its terms should not be strictly scrutinized for the purpose of making them void. See 2 McQuillin on Municipal Corporations,

Section 814. Where it is open to two constructions, one legal and the other illegal, if possible the former will be adopted. See 2 McQuillin on Municipal Corporations,

Section 810. While it is desirable that ordinances should be free from doubt, the court should strive so to construe them as to give reasonable effect to the object aimed at. Scrutiny unreasonably rigid will not be resorted to in considering the meaning of ordinances. 2 McQuillin on Municipal Corporations, supra. The-City- of Miami Beach has undoubted power, granted by its charter expressly, to regulate the speed at which horses and vehicles of all kinds, automobiles and motorcycles may be driven through the- streets of the city. In the case of State ex rel Ellis v.

Tampa Water Works Company, 56 Fla. 858, 47 South. Rep. 358, 19 L. R. A. (N. S.) 183 the rule of construction was adopted which requires all doubts as to the .propriety of means used by at city in the exercise of its powers to be resolved in favor of' the municipality. If a reasonable doubt exists as to a: particular power attempted to be exercised by the city it will be resolved against the city, but the existence of the' power being established all doubts as to the propriety of the means used in the exercise of the power will be resolved in its favor.

The" means adopted by the city to regulate the rate of speed at which automobiles may be driven through the streets was the adoption of an ordinance providing for the punishment of reckless driving. Reckless driving is defined by the ordinance to be driving at a greater rate of speed than twenty-five miles per hour. To construe this language to mean driving at that rate of speed “anywhere in the city” is to write words inte the ordinance that were not intended to be placed there and1 to exercise a power which the city did not possess.

It is tO' place a broad or liberal construction upon the words used, that would defeat the attempted exercise of its power.. The language used should be construed in the light of the power conferred, so that the meaning of the ordinance would be that the rate of speed at which an automobile may be driven on the city streets shall not exceed twenty-five miles per hour. We do not regard either the case of People v. Bell (N. Y. Misc.) 148 N. Y. Supp. 753 or the case of Royal Indemnity Co. v. Schwartz, (Tex. Civ. Ap.) 172 S. W. Rep. 581 as supporting the contention of plaintiff in error.

In each case the ordinance attacked undertook to regulate the driving’of automobiles “within the city limits.”- • In the New York case the court held that as the city had. power only to regulate the speed of automobiles on public highways an information which merely charged the defendant with driving an automobile at a greater rate of speed than fifteen miles an hour on “Main street” and not alleging that'“Main street” was a public highway, did .not charge any crime.

In the Texas case the ordinance prohibited any person under 18 years of age from operating or running “an automobile within the city limits.” The court held that under the general power to “protect the lives, health and property of its inhabitants” the city did not have the power to prevent a person under 18 years of age from operating or running an automobile any where within the city limits because such ordinance “includes upon private property.” That it was “unreasonable invasion of personal liberty.” In the case at bar to make the ordinance amenable to that criticism it is necessary by a liberal construction to read. into the ordinance language not employed.

The judgment should therefore be affirmed, and it is so ordered. ' ' Taylor and West, J. J., concur. Browne, C. J., and-Whitfield, J., specially concur.