The opinion
OLNEY, J., Concurring.
I concur. The main opinion might, however, be taken as holding that the conflict between the city ordinance and the state law which renders the former invalid, was between the provision of the ordinance fixing a maximum speed of fifteen miles an hour and the provision of the state law that no one should travel at an unsafe speed. I do not so view the matter. The conflict in my judgment is with the provision of the state law fixing a different maximum, that of twenty miles an hour. Two things are essential for any law effectively regulating the rates of speed on highways. One is that no one shall exceed a certain speed. The other is that no one shall drive at a speed that is actually unsafe under the conditions which exist at the particular time and place. The two things are quite distinct, and the state law endeavors to provide for both. If the provision of the city ordinance fixing a maximum is in conflict with the state law, it is with the provision of the latter which fixes a different maximum, not with the provision that no one shall drive at an unsafe speed, maximum or no maximum.
If the state law merely provided a maximum which should not be exceeded, without any expression of intention affirmatively to authorize any speed not unsafe. less than the maximum, it might well be held under the authority of the milk ordinance case and
Mann
v.
Scott,
180 Cal. 550 , [182
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Pac. 281], referred to in the main opinion, that a city ordinance fixing- a lesser maximum was not in conflict with it. But this is not, in my judgment, the true construction of the state law. It provides that a man traveling the road shall not travel at an unsafe rate of speed, and in no ease in excess of a certain maximum, and also that no other limitation shall be put upon him. This prohibition of any other limitation, viewed purely as a prohibition upon municipalities and counties, is undoubtedly void. Cities and counties, have the right given them by the constitution to pass local regulations not in conflict with the state law, and this right the legislature cannot prohibit them from exercising.
But the prohibition here involved is not to be viewed solely as a prohibition upon counties and municipalities. It is a prohibition designed for the regulation of the speed of those traveling the highways, and clearly designed for the purpose of permitting such parties to travel subject only to the regulations as to rate of speed provided by the state law. Putting it in another way, if the state law had read that a man traveling the highway should not exceed a certain speed, but should have the right to travel up to that speed, provided it was not unsafe for him to do so under the immediate "surrounding conditions, there would have been no prohibition on counties and municipalities involved, and no question as to the validity of such prohibition would have arisen. Nevertheless, any local ordinance fixing a lesser maximum would be invalid, as plainly in conflict with the provision of the state law authorizing any speed not unsafe up to the maximum fixed by it. Now, the only difference between such a reading of the state law and its actual reading is that the permission to travel at any speed, not unsafe, up to the maximum fixed, instead of being couched in the affirmative', is put in the negative. The traveler is told, you may not travel at an unsafe speed and you may not exceed a certain speed—safe or unsafe—but any other limitation upon you is prohibited. This can mean but one thing, and that is that the traveler is authorized to travel at any rate of speed he desires, provided he does not travel at an unsafe rate or exceed the limit fixed. It is merely putting in a negative and roundabout way what could better have been said directly and affirmatively. [With such a law a city
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ordinance fixing another and a lower limit is plainly' in conflict.