BICYCLISTS HAVE RIGHTS. - What Is More, They Are Getting Ready to Maintain Them. - The San Francisco Examiner, 13 Sep 1894

From Wooljersey


What Is More, They Are Getting Ready to Maintain Them.

Horace w. Philbrook Was Not a Bit Daunted When Arrested for Riding on Forbidden Ground - He Reviews the Precedents - A Wheelman From the East Talks About California Roads.

The controversy over certain Park regulations as to bicycle riding, raised with so much spirit and determination, seems likely to stir up a more interesting question and have a more far-reaching effect than was contemplated.

Amid the kicks of wheelmen and horsemen and the conflict between the Park Commissioners and 3,000 wheelmen has arisen the question, "Has the Park Commission inherent power to keep anybody off of any Park drive anyway?"

The jurisdiction of the Park Commissioners to make regulations and impose penalties for their violation is questioned, with strong indication, that if their power was brought to a test the Commissioners would come out second best.

The questions intrude themselves just now: "Have the Supervisors power to legislate for the regulation of Golden Gate Park, as they have never yet done?" "Is the police power of the Park Commission a hollow thing that has stood for years simply because it was never attacked?" and "Is that power about to be definitely questioned and determined?"

The Park Commissioners have been sole lords of Golden Gate Park and worthy and unselfish dictators of its destiny for a long time. They have created a code of laws for the regulation of the Park and the people and things therein, and those laws have been respected by the public and enforced by the courts without question. The Board of Supervisors has ignored the Park amid all its labors and troubles, and no conflict of authority between the municipal and the Park law-makers has ever arisen.

Now comes Otto Tum Suden with the proposition that the Park Commissioners cannot make and enforce ordinances, and that the Supervisors should do so, and the cyclists are inclined to fly to arms in assertion of what they deem their rights. The question of the authority of the Park Commissioners to make ordinances at their will and impose penalties for their violation has never been tested in the higher courts. The Legislature, in creating the commission, expressly conferred on the Board of Park Commissioners the authority to make all needful regulations, and declared that any violation of those regulations should be a misdemeanor. Under that law the commission has passed many ordinances, and with the aid of the Park police and the Police Courts has always successfully enforced them. Hundreds of people have forfeited bail or paid small fines without disputing the legality of the ordinances imposing the penalties.

The questions of the jurisdiction of the Park Commission and the constitutionality of the law under which it imposes its punishments came very near being tested when Horace W. Philbrook, the attorney, was arrested by a Park policeman while riding a bicycle on forbidden ground. It was when the Fair was started, and Mr. Philbrook and James H. Barry rode on their wheels into the Fair grounds, about which the fence was then being built. A Park policeman, with a great flourish, ordered them away, and Mr. Philbrook resented the order. He was arrested, but the charge was dismissed by the Commissioners and the policeman fined.

Meantime Mr. Philbrook had been getting ready to fight the case, and prepared himself to test the power of the Commission to make rules with penalties attached, limiting his liberty in the Park. He remembers what he learned then of the law in the case, and yesterday he declared that the Board of Supervisors was unquestionably the only legislative power that could legally enforce police regulations in the Park.

"The Legislature has expressly empowered the Park Commission to make rules regulating people and things in the Park," says Mr. Philbrook, "and has provided that the violation of any ordinance made by the commission shall be a misdemeanor. The question is as to the constitutionality of this law, and while this particular law has never been tested the Supreme Court has declared unconstitutional three exactly similar laws relating to similar commissions with similar powers. The case of the Harbor Commission of Eureka against the Redwood Company to enforce a penalty of $500 for violation of a regulation of the board was one. The case of ex parte Cox, charged with misdemeanor in violating a quarantine regulation of the State Viticultural Commission in 1883, was another, and the case of Dr. Roscoe McNulty against the State Board of Medical Examiners was another.

"In the case of the Harbor Commissioners of Eureka the Supreme Court held that the Legislature could not delegate to other powers than Boards of Supervisors of cities and counties power to impose penalties. In the McNulty case it declared: 'The Legislature cannot delegate to a Board of Medical Examiners the power of declaring what acts shall constitute a misdemeanor.' There was an exactly similar ruling against the Viticultural Commissioners.

"The Supreme Court has held that the power of legislative bodies other than the Legislature proceeds from Section 11 of the constitution, which is as follows:

"Any county, city, town or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.

"So in my mind there is no question that the Park Commissioners have no power to enforce any of their regulations by penalties, and that the Supervisors clearly have the right to make ordinances regulating any part of the city and county, including the Park. The powers of the Park Commissioners are executive only. The so-called Park police are merely park keepers and have no more power than a private citizen has in his own door yard. If any one comes in and goes to trampling on his flower beds he may throw him out and he may file a complaint under the general laws. The power of the Park Commissioners to dispose of the Park revenue and to do many other things is unquestionable, but any police ordinances that they pass amount to requests only, for no penalty they impose can be enforced. The Commissioners know this and they have always avoided bringing the question to a test. They catch only those who surrender to them. They do not press cases that are contested. Usually a man arrested for an offense in the Paris forfeits his bail. It is not a right position for a Government to take to punish those who surrender and say nothing and dismiss offenders who contest charges against them. The powers of the Park Commission in this regard are similar to those of the Harbor Commission here. Nobody disputes its control in many things over the east half of East street, but the municipal ordinances and police powers extend to the east half of East street the same as to Market street.

East street is now named "The Embarcadero."

"The Park is one of our finest institutions and should be conserved by every citizen. It should be protected by all proper and needful regulations. I think that a well-considered set of ordinances should be passed by the Board of Supervisors. The present Park regulations about cycling are, some of them, certainly unreasonable. For instance a cyclist will not be permitted to dismount and push his wheel through the forbidden territory. The stretch of road between the music stand and the Conservatory ought to be open to bicycle riders at all times, but they should be kept out of the carriage stand. The reason that bicycle riders want the middle drive is not generally understood. When they are returning tired from a spin to the beach they see a stretch of fine, hard, level road ahead of thom and are forced to turn aside and climb a hill. The bicycle rider is no more dangerous to others than the carriage driver. A careless or reckless rider should be punished just the same as a careless or reckless driver. If he don't know how to ride he should take the consequences as does one who does not know how to drive."

So out of the controversy that is raging now seems likely to arise for final settlement a question of large importance that has not been raised before in all these years, and the Board of Supervisors may be getting out a code of Park laws that will relieve the Park Commission of much of its worry and labor.

To Avoid the Grade.

To the Editor of the Examiner - Sir: In regard to the main drive in the neighborhood of the band stand, I wish to say that by allowing wheelmen to go just beyond the peacocks' inclosure, turning to the right, circling the Garfleld monument and riding to the old band stand, and from there to the main drive, an easy way out of a stiff grade would be found by building a good track, perhaps five or ten feet long, through an unfrequented part of the Park.

San Francisco, Sept. 11th.
Bicyclers Not Hoodlums.

To the Editor of the Examiner - Sir: Allow me to add my mite to the bicycle-carriage controversy. If the Park Commissioners will take for their motto the utilitarian formula, "the greatest good to the greatest number," they will concede to the riders of the silent steed anything - in reason - that may be asked for. This because wheelmen and wheelwomen at present outnumber team manipulators two to one, and the array of cyclists is increasing all the time.

One of the objections raised to wheelmen being allowed within the circular driveway on music days is that skittish horses might take fright and cause damage to life or limb. It appears to me that a horse that will fret at the sight of a bicycle is a dangerous brute anyway, and should be kept out of such crowded places. To say the least of it an animal that will stand the combined blare of half a hundred brass-throated instruments and will have a fit at the sight of a poor little soft purring wheel is an inconsistent beast.

Some one threw out the hint that many wheel riders belong to the tough variety. I have only had experience of early morning Cliff goers, and I can refute the base slander. The wheel riders who roll oceanward these bright mornings are the nicest kind of people, but I can't say as much for all the teamsters. I notice that quite a number of them take a delight in crowding cyclists into rutty and sandy places on the road, and moreover put into practive forms of salutation and badinage that are anything but elegant.

Cyclists in Other cities.

To the Editor of the Examiner - SIR: This discussion about the rights of wheelmen in Golden Gate Park will do lots of good and the wheelmen will not be the only gainers.

By the introduction of smooth pavements through out the city many of the wheelmen and wheelwomen will take their outing on the asphalt pavement instead of climbing the hills to get to the wind swept Park.

As a boy I was brought up among horses and broke many colts. When bicycles began to be used I had horses shy and, like an older person, I broke those horses not to shy. It is rank nonsense to talk about one bicycle stampeding all the horses in the concourse on a Sunday. Do not those same horses pass hundreds of wheels on week days? Those horses must have a more sensitive nature than their owners. At least more religious.

The Park Commissioners are shrewd, sensible men, but a little behind the times on the bicycle question. I would like to take them through the parks of Chicago, Buffalo, Detroit and nearly every other Eastern city with their eyes open. They would learn that the dead-letter laws of those Eastern parks are too plentiful to count.

Buffalo has a park system that was to surround the city, but the city has grown beyond the parks, as the bicycle and smooth pavements of genuine Trinidad asphalt has made it possible for everybody to own their own homes and not have to be crowded up in bay-windowed-to-death flats.

Buffalo Park Commissioners place no restrictions on wheelmen whatever, and yet wheelmen and carriages are there by the thousands every Sunday with not a single serious accident on record. Detroit has a four-mile avenue approach, with a bridge three-quarters of a mile long, connecting with beautiful Belle Isle, and I have known 2,600 carriages and 3,000 bicycles to cross over that bridge in one afternoon and evening with not a single collision, and yet Detroit has good horses, and fast ones, too.

There is a rawness in the air out here that Eastern people terın "pure cussedness," and this probably accounts for the cranky ideas of the horsemen.

Since I found a bicycle more speedy and pleasurable than a sweaty, hair-shedding quadruped I have been doing missionary work for the wheelmen, and I must say that in all my globe trotting I never before saw a country to compare with California in its variety of road hogs, who not only want the whole of the road but go out of their way to run down a bicycle rider.

But to return to Golden Gate Park. I can not see any sensible or legal reason for keeping wheelmen out of the main drive. The reasons and excuses made so far remind me of the talk at Mt. Airy, N. C., up in the Blue Ridge. A railroad had been completed into the town from the Piedmont region, and thousands of mountaineers had gathered to see the first train. The train was late, and hundreds kept saying: "They never'll get here. It can't be done." But the engine got there just the same.

San Francisco, Sept. 12th.