"The evidence tended strongly to show that the use of the bicycle on the road materially interferred [sic] with the exercise of the rights and safety of others in the lawful use of their carriages and horses in passing over the road. ... The statute did not deprive the defendant of the use of his property. He might have gone another way. He might have gone at an opportune time, with the express permission of the superintendant of the road. In any case, he had no right to go, using his bicycle, at the peril of other people, he giving rise to such peril. The statute did not, therefore, in any just sense, destroy his property, as contended, or deprive him of the proper and reasonable use of it, nor was such its purpose. Its purpose was lawful, and, in our judgment, it does not provide an unreasonable police regulation; certainly not one so unreasonable as to warrant us in declaring it void. ... As we have said, it is the province of the legislature to decide upon the wisdom and expediency of such regulations and restraints, and the courts cannot declare them void, or interfere with their operation, unless they are so manifestly unjust and unreasonable as to destroy the lawful use of property; and hence are not within the proper exercise of the police power of government. ... The exercise of this power does not extend to the destruction of property under the form of regulating the use of it, unless in cases where the property, or the use of it, constitutes a nuisance. In such cases, if the owner of the property suffers injury, it is such as happens in the illegal use of it, or because the property itself, in its nature or application, is unlawful, and it is damnum absque injuria [loss or harm for which there is no legal remedy, Black's Law Dictionary Deluxe 7th Ed. 398.]. No man has a right to use his property so as to produce a nuisance, or to have property which is a nuisance where it may be situated.
"It is further objected that the statue leaves it to the arbitrary discretion of the superintendant of the road to allow or disallow persons to use 'a bicycle or tricycle, or other non-horse vehicle,' on it. This is a misapprehension of the true import of the provision cited. The discretion vested in the superintenant is not arbitrary. ... If there be times or seasons or occasions when persons wish to use bicycles or other like vehicles, embraced by the prohibitory clause of the statute in question, it is his plain duty to allow them to do so at such times. ... And the creation of the discretion implies that there may be occasions or times or seasons when bicycles may be used on the road. ... In our case, the purpose of the statute is obviously a lawful and a proper regulation of the use of property, and the designation of the agent, and the discretionary power conferred on him, is for the lawful purpose of effectuating the just intent of the statute, and he is amenable as we have indicated above.
"There is no error. Let this opinion be certified to the criminal court of the city of Wilmington according to law. It is so ordered."
Disclaimer