WHEN IS AN AUTOMOBILE NOT AN AUTOMOBILE

BAR HARBOR'S FIRST AUTO

Bar Harbor Record
August 7,  1907

INTRODUCTION
As far as I can tell, this newspaper article appears to be about the first car in Bar Harbor that violated the "No Auto's" law, where a few roads you could drive a car on, most roads cars were prohibited from driving on.  I found the argument the guys lawyer put forward to be an interesting defense, "When is a car not a car,"  an article well worth the read.

OWNER ARRESTED SUNDAY, FINED MONDAY
Story of the arrest and trial, with arguments of Counsel/

Mr. Fordham C. Mahony, of New York, was arrested Sunday night in front of the Belmont Hotel, by Chief of Police Guthrie charged with running his automobile over one of the town of Eden's prohibited roads.  The case came up in the municipal court Monday morning and was adjoined until 2 o'clock.  After a three hours trial Judge Clark adjudged Mr. Mahony technically guilty and imposed a nominal fine of $1 and costs.  Mr. Mahony did not appeal and paid the fine and costs, amounting to $17.09.
The case was the first under the prohibitory ordinance, passed by the town under the enabling act of the legislature,  and of course excited endless comment and judging by street and curb and ship talk endless interest.  Mr. and Mrs. Fordham C. Mahony are on their wedding trip, en-auto, and left New Your City a week ago Tuesday.  Mr. I.R. Grossmann, a season guest at the Belmont, is the defendant's fath in law, and is also brother of Mrs. Frank Fremont Smith.  Mr. Mahony is grandson of the celebrated author, J. Fenimore Cooper.  The wedding tour went merry as a marriage bell until Corkscrew Hill was encounter in the town of Eden with legalism and lawyers on the thitherward side.  In Camden the bridegroom became acquainted with Harry R. Willey, who who put him "Wise."  Willey said to Mahony that he was "next" to things upin Eden, and if he wanted to run his bloomin devil-car into and through the roads of the proud metropolis of Mt. Desert there "was a way" as Sentimental Tommy would have put it, courts and counsel not withstanding.  Willey's eloquence seemed conclusive, and the trick, not half bad for a wedding tripper.  But with his brakes burned out and his honeymoon interrupted, Mahony  came to full stop in front of Judge Clark on Monday.  The case was fairly tried, and Judge Clark's Summing up was an admirable bit of judicial charity and sense.  A few facetious passages between counsel lightened up the dry tortuosites of the law to the lately.  The court room was jammed, and ladies stood from two to five o'clock when the case was ended.  Among those present  were Mr. I.R. Grossmann, Mr. Arthur D. Additson, Mr. E.B. Mears, Mr. F.L. Savage, Mr. L.E. Opdycke, president of the V.I.A., Mr. Ed Bunker, the town's first selectman for many years, Mr. B.S. Higgins, the present First Selectman, Mr. Max Franklin, Mr. J.P. Bass, owner of the Bangor Commercial, and Mr. Fred C. Lynam, of the Bar Harbor Banking and Trust Co.  E.S. Clark, Esq., conducted the prosecution, and Mr. Mohony had as counsel Elliott N. Benson, Esq..
Mr. Clark opened the case and said Attorney Wood had been out of town and had not had sufficient time to become conversant with it.  He explained that the prosecution was one to test the law, and was made in the name of the town, the chief selectman having ordered the chief of police to start the prosecution.  Mr. Clark said  that about half past six that Saturday night the defendant, with his wife and his chauffeur, Mr. Austin N. Hopey Jr., together with h.R. Willey where on the further side of Corkscrew Hill, on the Bay Shore Drive.  Power was shut off and a horse hitched to the auto and the machine pulled up to the top of the hill.  It did not come out in testimony but it is common talk about the town that the noble friend of man in question did not have "pull" enough to drag the motor car, a heavy Oldsmobile, to the top of the hill.  so the chauffeur turned on the juice, which nearly scared the horses to death, and sent him up the hill at a gait he never before and probably never again will hit.  The crest of the hill gained the car and its passengers came down unassisted, except by gravitation, and the strong push and the long push and the push altogether of Mr. Willey, Mrs. Mahony aboard and the bridegroom at the steering wheel.  A great deal was made in taking testimony of those two facts, it being contended by the prosecution that to all intents and purposes the auto was being "used" on one of the townships roads.
Five witnesses for the town were sworn;  Chief Guthrie, William H. Sweet, William H. Sherman, Frank E. Elliot and Oliver Hall.  Mr. Sherman, as town clerk of Eden, read the warrant, attest, and the town vote taken on Article 2 of the warrant July 1st, 1903, defining certain roads prohibited as concerned auto travel.  Mr. Oliver Hall, testified that defendant had said Sunday night that he had the "National Association" behind him and that there would be plenty of automobiles here another season as the Gilden Tour was planning on coming to Bar Harbor in 1908.
Testimony was introduced as to the place and visibility of the signs, and the size of the lettering, warning autos off the roads in question.
The following definition was given a legal status, "An automobile is any vehicle driven by its own power contained within itself."  Attorney Benson started in to conduct the case for the defendant by saying that when he became aware of the alleged violation of the town's auto prohibition laws he received the impression that some great dragon had come to town with burning eyes and flashing tail, and that the people of Bar Harbor had perhaps fled to their houses and barred themselves in.  Instead, however, a gentleman from New York had, without breaking any laws of state or town, come to town in a motor-car.  He had tried to get into Bar Harbor legally, and to this end had got a horse (the same horse that was thrown into a state of chronic neurasthenia by his experience, according to current rumor - though defendants attorney did not introduce this into the testimony) and had his auto hauled onto an un-prohibited road.  "We claim," said Mr. Benson, "That the moment an auto is not under its own power, but pushed or pulled by other power, it is a piece of merchandise.  Mr. Mahony does not represent the world trying to break into this stone wall of exclusion, hedging this town about."
On oath Mr. Mahony testified that he had no interest in the make of car he operated, or the manufacturers, or in any car or firm whatever, and that he did not come to town to violate any law, or to make a test case.
Austin N. Hopey Jr., Mr. Mahony's chauffeur, proved a clear minded witness who expressed with vigor and piquancy his testimony.  It was impossible to corner him.  Asked concerning the stopping of the motor when descending hills Mr. Hopey created a smile by saying, "from the time we start on a journey till we get to the end we don't shut off power unless we stop to get something to eat."
In his summing up argument for Mr. Mahony, Mr. Benson said, "There is a  disposition, I can read it n faces as I go about, I can read it on faces here to discriminate and take away the Inallenable rights of citizens.  Here is this gentleman from New York, watched and hounded and grabbed up like a dog - Sunday night - they couldn't wait until Monday.  Ocean Drive and the Bay View Drive are perhaps specially dangerous for automobiles to operate, but our case has to do with two little ends of the Corkscrew Hill Road.  Being drawn by a horse, or pushed by men, she's no longer an automobile, but an article of merchandise, the same as a carriage being towed.  She's no longer an automobile but a piece of merchandise.  She was in the act of being transported.  Your Honor, I assure you that this will be no test case.  I want to inform this court and the public through the court that if there are any timid souls who are afraid the automobiles will be going around frightening their hens, or pigs, that this auto-prohibitory law  is not worth the paper it is written on.  That law is absolutely unconstitutional  when it closes every road to the people of this country.  This is a little bit of petty case, but we shall need the motor bicycles and the automobiles to keep the grass down and out of our streets if this sort of temper of mind is carried out.  I deny the constitutionality of the law,  and in the second place there was no ordinance of the town of Eden violated as this automobile was not running under its own power when upon the prohibitive bits of road in question.
  Mr. Clark in  his closing argument for the prosecution was clear and strong and convincing.  He said here is a gentleman who travels clear from New Your to Duck Brook Bridge in his automobile.  Up to that point there is no question but that the machine is an automobile.  Query;  is it still an automobile when it goes over the hill?  Is it  still an automobile when it comes out on the other side?  Three minutes before it was an automobile, three minutes afterwards it blooms out into an automobile that runs over people.  The question is was he using it as an automobile when he passed over the forbidden pieces of road.  Whatever it may of been, weather an automobile or moth, or a butterfly, he was using it.  He used it for the conveyance of himself, and at least his wife, over the Duck Brook Road.  I will be sorry if the grass grows in the streets of Bar Harbor, and I am sorry that my brother lawyer alluded to the "unpopularity" of this law.  The law was voted twice by large majorities.  There was no question as to the count.  I am sure that the people of this town rather have the grass grow here than see automobiles come here and run over our women and children.  This prosecution is brought to secure our legal rights, not in a vindictive manner, but as an example to the world that the laws of Eden cannot be violated with immunity; that the laws of Eden which have been put upon the statue books must be respected."
The case was here left to the court and Judge Clark summed up as follows;  The case before the court is not the wisdom or the unwisdom of the town in seeing fit to avail itself of the legislative act concerning automobile prohibition.  Neither has the defendant committed a crime, only a misdemeanor;  it is purely statutory.  The question of intent does not concern us.  It is purely a question of what the defendant did, regardless of intent.  The question is, were you not using an automobile in this restricted territory.  The word automobile applies to all vehicles propelled by power.  The apprehended danger to carriages was the reason for the passing of this act.  I think technically that you have violated