Gaines v. State , 80 Ga. App. 512 ( 1949 )

It is our opinion that a statute seeking to make penal the act or offense of operating a motor vehicle which is not at all times "equipped with efficient and serviceable brakes" is, under the decisions of our Supreme Court in Hayes v. State, 11 Ga. App. 371 (75 S.E. 523) and Howard v. State, 151 Ga. 845 (108 S.E. 513) so indefinite as to render that part of the statute void. Our Supreme Court in the latter case quoted with approval the following language from the Hayes case: "What rate of speed is reasonable and proper? Who should determine this question? What is this test as to the rate of speed which can be employed, and how is the driver of an automobile to know when he is driving at a rate of speed prohibited by the act? . . The law must so definitely and certainly define the offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated. One jury might say that a certain rate of speed was reasonable and proper. Another jury might reach exactly the opposite conclusion from exactly the same state of facts. . . The legislature should [not] be permitted to set a dragnet and leave the courts to determine who shall be detained in the net and who should be set at liberty." The words "efficient and serviceable" as applied to brakes is no more capable of exact definition, or of common interpretation than are the words "reasonable and proper" as applied to speed. We therefore believe that this decision should be controlled by the decisions of the Hayes and Howard cases, supra, and that the statute under discussion is void for uncertainty. It is noted that the majority opinion quotes the case of Ray v. State,47 Ga. App. 22 (169 S.E. 538) as stating that the decision in theHayes case has been criticised by the courts of other States. The cases there cited from foreign jurisdictions do not bear out this statement, although they reached different conclusions. Be that as it may, our Supreme Court has not criticised the Hayes case but has, on the contrary, approved it, and we are bound by the decisions of our own State, including those cited above and also Empire Life Ins. Co. v. Allen, 141 Ga. 413, 416 (81 S.E. 120); Strickland v. Whatley, 142 Ga. 802 (83 S.E. 856);Central of Ga. Ry. v. Larsen, 19 Ga. App. 413 (91 S.E. 517); Hale v. State, 21 Ga. App. 658 (94 S.E. 823);Heath v. State, 36 Ga. App. 206 (136 S.E. 284); Hurst v.State, 39 Ga. App. 522 (147 S.E. 782); Phillips v.State, 60 Ga. App. 622 (4 S.E.2d 698). We further believe that the decision in Ray v. State, supra, cited in the majority opinion as authority for the view that the statute under consideration is not invalid is, when properly interpreted, authority for a contrary determination of the question. Judge Guerry there stated that this court was bound by the Hayes case, and then distinguished the Ray case by pointing out that a statute which calls upon the operator of a motor vehicle to allow an overtaking vehicle to pass by turning his car to the right "as far as reasonably possible" is not indefinite when considered with Code § 95-106, setting the minimum width of third-class roads at 16 feet. Whether all roads are at least 16 feet wide as a matter of fact or not, Judge Guerry considered them to be so as a matter of law, and the court held that, under such conditions, the statute was not unreasonable in its requirements, since to turn to the extreme right of the traveled road would per se leave room for the overtaking vehicle to pass. The Ray case and similar cases are not applicable because they hold to be valid statutes capable of definite ascertainment as to the requirements therein. On the other hand, Watson v. State, 192 Ga. 679 (16 S.E.2d 426) and cases cited therein dealing with statutes regarding prostitution, indecent exposure, etc. are not applicable to this issue, as was specifically pointed out in theWatson case, the reason being that these cases deal with rules of conduct rather than with measurable mechanical devices. It is impossible to legislate exactly what amount of clothing will protect a citizen from the charge of indecency. It is not only possible, but highly advisable, to legislate what characteristics a set of brakes shall have to be considered serviceable, and the speed a car may obtain while being driven reasonably and safely. Practically every State and municipality has a set speed limit. Practically every manufacturer of motor vehicles is equipped to furnish precise testing data for minimum brake standards. These can readily be incorporated into law, and many States have already done so. See Uniform Laws Anno., Title 11, Motor Vehicle Acts, p. 61, § 70. The fact that a court thinks there ought to be a good law is no reason for sanctioning a bad one and, where standards can be made specific, that which is vague and indefinite must fail by comparison, as otherwise there can be no opportunity of intelligent choice between innocence and guilt.

This case basically involves a Federal constitutional question and the answer to our question rests ultimately with the Supreme Court of the United States. It has decided many cases involving the principle of indefiniteness of statutes. The court's basic and fundamental ruling on the question is as follows: "And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U.S. 216, 221; Collins v. Kentucky, 234 U.S. 634, 638.

"The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them (Hygrade Provision Co.v. Sherman, 266 U.S. 497, 502; Omaechevarria v. Idaho,246 U.S. 343, 348) or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ (Nash v. United States, 229 U.S. 373,376; International Harvester Co. v. Kentucky, supra, p. 223) or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U.S. 81, 92, `for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.'" Connally v. General Const. Co., 269 U.S. 385 (46 Sup. Ct. 126). Further, in the opinion next above quoted from, the court cited United States v. Capital Traction Co.,34 App. D.C. 592, stating that "where a statute making it an offense for any street railway company to run an insufficient number of cars to accommodate passengers `without crowding' was held to be void for uncertainty. In the course of its opinion, that court said (pp. 596, 598): `The statute makes it a criminal offense for the street railway companies in the District of Columbia to run an insufficient number of cars to accommodate persons desiring passage thereon, without crowding the same. What shall be the guide to the court or jury in ascertaining what constitutes a crowded car? What may be regarded as a crowded car by one jury may not be so considered by another. . . There is a total absence of any definition of what shall constitute a crowded car. This important element cannot be left to conjecture, or be supplied by either the court or the jury. It is of the very essence of the law itself, and without it the statute is too indefinite and uncertain to support an information or indictment."

Just as one person might be the difference between a crowded and an uncrowded streetcar, three feet of stopping distance might be the difference between efficient and inefficient brakes. But which person in the streetcar, or which three feet of stopping distance, is a matter of degree, and neither the public service corporation nor the motorist should be compelled to guess thereat upon peril of conviction if his estimate fails to concur with that of the court and jury. To do so, as was pointed out by Mr. Justice Holmes, is "to exact gifts that mankind does not possess." International Harvester Co. v. Kentucky, 234 U.S. 216 (34 Sup. Ct. 853).

The above also applies to Chavers v. State (No. 32595), post, which was before the court for consideration at the same time as the instant case.