The billboard (July-Dec 1898)

W m - The only Broadway service. The only 6th Avenue L road service. All at stations. The only 3rd Avenue L road service. All at stations. The only 9th and 2nd Avenue L road Station Service. The only Lexington Avenue Cable road service. The only Columbus Avenue Cable road service. The«.- : Pennsylvania Ferry service. The only N. Y. C. & H. R. R. R. service worthy the name. ^e ideal Bill Posting Malm:lm;f I:': Plant of America. UN SON Owns More and Better Billboards in Better Locations than all other Metropolitan Plants combined* Munson's Boards are located on the main thoroughfares, drives, boulevards, cycle paths and car lines Billboards built of Galvanized Iron—ho unsightly cracks or breaks in the posters placed on these boards. Munson designs, prints, posts and checks. Whether it's Metropolitan or Provincial service you want, see Munson about it first HARRY MUNSON N2; 4 MURRHY STREET. Telephone 4648 Cortlandt. «% ,-1 tJ*£ ~$fr " ■*■*"': Branch at No. 147 Bast 126 St. Telephone 6 Harlem. Sole member International Association of Distributor! In and For All Boroughs of Greater New York.. THE BILLBOARD Vol. X., No. 8. CINCINNATI, AUGUST i, 1898. PRICE 10 CENTS PER YEAR. Sl.00 EXTENT OF POLICE POWER. The Constitution and the Common Law Places Limitations Thereon. Private Property Rights—A City Ordinance Not Drawn With a Doe Regard for the Rights of Citizens. Evrrv bill poster In America should care- fully tile the following decision away for future use. viz.: (The interests of the city, in the case here- in decided, were represented by Missrs. Thomas and Chambers, of the City Attor- ney's office; those of Mr. WlUhire, the suc- cessful litigant, by the law firm of Fuller & Hurmtt.l In the Superior Court of the- County of Los Angeles. State of California. In the matter of the application of H. G. Wilshire for a writ of habeas corpus. The petitioner in this case was arrested and is held in custody under a charge of com- mitting a misdemeanor in that he built, erected and maintained, along the line of Temple street, a bill board, sign board and advertising board, which exceeded ten feet in height, contrary to the ordinance of this city in such cases made and provided. The ror- tion of the ordinance bearing upon the case reads as follows: "Sec. 1. It shall be unlawful for any per- son, either for his own use or for the use of any other person or persons, or as agent, or ••ni-loyc of any person. Ann. or corporation, to build, erect or maintain, or cause to be built, erected or maintained, along the line of any public street or alley of said city, or within thirty fret of such line, any bill board, sign board, advertising sign beard, cr other board or structure intended to be used for ad- vertising or sign purposes, any part of which exceeds ten feet in height, measured frem tho surface of the ground to the highest p-.int In said structure." It is contended on the part of the petition- r that the ordinance in question is wholly ille- cal and void, and not within tho power of tho municipal authorities of the city of bos An- Kdcs to enact, and also that it is unreason- able and discriminating. On behalf of the city, it is maintained that the ordinance is reasonable and is within the constitutional and statutory power conferred upon the city. The Constitution of the State, article XL. section 11, provides: "Any ccunty, city, town or townEh'p mry mak- and enforce, w.thin its limits, all such local, police, sanitary, and other regulations as arc ndt in conflict with general laws": and the charter of Los An- geles, article I., section 22. confers upon the city, among other powers, that "to make and enforce, within its limits, such local, pclice, military and other regulations as are not In conflict with general laws and arc deemed expedient to maintain the public peace, pro- tect property, promote the public morals and preserve the health of its Inhabitants." The police power, that is, the power to make laws to secure the comfort, conve- nience, peace and health of the community, is an extensive one, and In its exercise a very wide discretion as to what is needful or prop- er for that purpose Is necessarily committed 10 the legislative body in which the power to make such laws Is vested: but the legislative body, in such cases, whether of the State or municipality, is not-the exclusive judge as to what is a reasonable and Just restraint upon the constitutional right of a citizen to pursue a business, profession or occupation. As the right of the citizen to engage in a business or follow a profession or calling is protected' by the Constitution. It is always a judicial question whether any particular reg- ulation of such right is a-valid exercise of legislative power. (Tledman's Limitations of Police Power, Sees. 85 and 191: Ex Parte Tuttle. 91 Cal. 589: Ex Parte Whitwcll. 9S Cal. 78). "In assuming, however, the right to judge of the reasonableness of an exercise of cor- porate power, courts will not look closely Into mere matters of judgment where thero may be a reasonable difference of opinion. 11 is not to be expected that every power will always he exercised with the hlgh-sl discre- lion. and when it Is plainly granted, a clear case should be made to authorize an Inter- ference upon the -ground of unreasonable- ness." (Some cases; also, St. Louis vs. Weber, 44 Mo.. 542). It Is further said, the limits of the power cannot be accurately denned, and the courts have not been able or willing definitely to circumscribe it.. Hut the power, however broad and extensive. Is not above the Con- stitution, and the Constitution must he heed- ed and obeyed. It furnishes tho supreme law and guidance for the conduct of legislators, judges and private persons, and so far as it imposes restraints, police power must be ex- ercised in subordination thereto. Again, as Raid In Mugler vs. KoiintiB, 123 It. S., SOI, "Tho courts are not bound by mere forms, nor are- they to be -misled by mere pretenses. They aro at liberty—Indeed, are under a solemn duty—to look at the sub- Htnnro of things whenever they enter upon I lie Inquiry whether the Legislature has tran- scended tho limits of Its authority- "• there- fore, a statute purporting to have been enact- ed to protect the public health, the public morals, or the public safely, has no reel or BUbstant'nl relation to those objects, cr is a palpable invasion of rights secured by. the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." It Is claimed that the purpose of this or- dinance was to protect the citizens against the dangers of such structures, on account of their liability to fall or be blown over, and also from their combustible nature. But It will be seen that the ordinance has no regard to the material of the structure, or its strength, nor does it prohibit the erection of a structure over ten feet in height or within thirty feet of the line of the sidewalk, if it within the distance from the sidewalk men- tioned in the ordinance, would be harmless of itself, a poster containing a program of the celebration of the Fourth of July, or a picture of the American flag, or like patriotic or harmless advertisement, could not have the effect to change it into a public nuisance or endanger property, public peace, public morals, or the health of the inn bitants of th e city. There is no question but the city pos- sesses the right under the police power of prohibiting the erection of wooden buildings or structures within certain limits, and has the right, also, to reasonably regulate the manner of the construction of buildings or other erections. That, however, does not seem to be the purpose of this ordinance, but the object appears to have been to prohibit bill Of Jersey Gty, re-elected President of the Associated Bill Posters' Association, at Buffalo, Tuly 13, J898. be not Intended to be used or used for adver- tising purposes: and it is difficult to see how a structure of ten feet or over, and within thirty feet of the sidewalk, is more dangerous from the fact that it has an advertisement upon it. If the structure were of iron inste-ad of boards, and built in the most substantial and durable manner, within thirty feet of the sidewalk, and over ten feet high, and used for advertising and sign purposes, it would bo - in violation of the terms of the or- dinance. Again. It makes no difference whether such sign board be erected in the central, business portion of the city, or away out In sparsely settled districts. It is difficult to see how the erection of sur-h a bill board, with an advertisement on it. In the outskirts and unsettled portions of the city, for In- stance, could affect the public morals or health of the city, or endanger life or prop- erty. As already shown, the ordinance Itself docs not seem to be leveled at the erection of tho structure, but at its intended use. or use. afte-r erection. In the way of advertising. If a plain board structure, of the height, and posting on the structures mentioned, and bill posting or advertising on sign boards, where the matter advertised is not Indecent or im- moral, is a harmless and legitimate business. Wherever this species of special or class legislation, either by the State or a subdi- vision of the State, has been brought before the courts, they have not failed to declare It invalid and void, whether the same be clothed in the garb of general legislation, 01 under the guise of the exercise of police pow- er. The Doard of Supervisors of the city and county of San Francisco, in 1SS4. passed an ordinance prohibiting the erection of fences, frame work, boards, and so forth, of a great- er height than ten feet above the ground, for painting or posting of signs or advertise- ments thereon. In that case, an injunction was prayed by the California Ad-Signs Com- pany, to restrain the city authorities from tearing down or otherwise Interfering, with certain sign boards or top signs erected by said plaintiff corporation: and the Superior Court of that city and county granted the In- junction as prayed. Tho Judge presiding, in his opinion, says: "The ordinance In ques- tion, besides making no discrimination be* tween the rural and thickly settled portions of the city, does not even prohibit the erec- tion of fences over ten feet high, but, as has been heretofore stated, makes it a misde- meanor to paint or affix signs or advertise- ments thereon. Ithink this an unreasonable interference with the lights of private prop- erty, and the ordinance is therefore void." In Ex Pare Whitwell, supra, -the Super- visors of San Mateo County nassed an ordi- - nance for licensing the keeping within the county of San Mateo, of hospitals, asylums, homes and retreats or places for the care and treatment of insane persons or persons of unsound mind, or inebriates, etc., but the ordinance contained such provisions, as a condition for granting the license, in the way of erection of high walls and the distance of the building from residences or other build- ings, and in many other ways, as to make It practically impossible for the petitioner in that case, Dri Whitwell, to obtain a license for the business he was - conducting, to-wlt, of the kind mentioned in the ordinance. The Supreme Court, after a full review of the authorities bearing upon this question, in* that case, says: "In our opinion, the ordi- nance now under consideration imposes arbi- trary and wholly unnecessary cot ditions upon the right to maintain such an asylum as that which petitioner alleges he is now conduct- ing," and adds: "A law or ordinance, the effect of which is to deny to the owner of property the right to conduct thereon a legal business, is. invalid, unless the business to which it relates is of such a noxioUB or of- fensive character that the health, safety, or comfort of the surrounding community re- quires its exclusion from that particular lo- cality".: and concludes-as follows: "First, that it is competent for the court to deter- mine whether any particular regulation of a useful business or occupation is. a reasonable restriction upon the constitutional Tight ot the citizen to engage in such business or fol- low such occupation: second, that the busi- ness of maintaining a private asylum for the treatment of mild forms of insanity and per- sons afflicted with other diseases named in the ordinance before us is a lawful one which cannot be prohibited either directly or indi- rectly; third, that the ordinance which peti- tioner is accused of violating is in each and all of the provisions referred to in this opin- ion unreasonable, and therefore void." In Ex Parte Sing Lee, 96 Cal. 354, the peti- tioner was held under a charge of having violated an ordinance of the cjt-rJof Chico. purporting to be passed for taeanlation of the carrying on of a public laundr?" 1 It made it unlawful to establish or carry on .the busi- ness of a public laundry or wash- house in that city without first obtaining a written permit from the Board of Trustees, and that could only be obtained upon the written con- sent of a majority of the property holders of the block in which the laundry was to be lo- cated. After referring to the police power ot municipalities, the court in that case says: ' "But the ordinance -which the petitioner hero is charged with violating is not of this char- acter, and the restrictions which it imposes upon the right to carry on a public laundry have no tendency to promote the public health or in any way secure the public com- fort or safety. The sections of the ordinance above quoted bear no kind of relation to such objects, and do not attempt to regulate the business mentioned with the view of accom- plishing such ends. * * • Such a condition imposed upon the right of a person 4o main- tain a public laundry is not only an unau- thorized interference with the inalienable right of such person to engage in a lawful occupation, but also with the right ot the owner ot property to devote it to a lawful purpose. The personal liberty of a citizen, and his rights to property, cannot be thus invaded under the guise of police regulation." In the ease of Lick Wo vs. Hopkins. 118 U. S.. 373. another laundry ordinance was drawn in question. That ordinance made it unlaw- ful for any person to "carry on a laundry within the corporate limits of the city and county of San Francisco -without having first obtained the consent ot the Board of Super- visors, except the same be located in a build- ing constructed either of brick or stone:" This ordinance was held void, as being arbi- trary and unreasonable in its provisions. The case of Crawford vs. City of Topeka, 51 Kans. 756. Involved the construction of a city ordinance very similar to the one under consideration here. That was also an ordi- nance pretending to regulate the erection and maintenance of bill boards for advertising- purposes. The court in its opinion uses the following language: "All statutory restric- tions of the use of property are imposed upon the theory that they are necessary for the safety, health or comfort of the public, but a limitation without reason or necessity can- not be enforced. In what way can the erec- tion of a safe structure for advertising pur- poses near the front of a lot endanger the public safety any more than a like structure for some other lawful purpose? * » « Al- though the police power is a broad one. it is not without limitation, and a structure which is not an infringement upon the public safety and is not a nuisance cannot be made one by legislative fiat and then prohibited. It is doubtless within the power of the city to pro- hibit the erection of insecure bill boards or ether structures and require the owners to maintain them in a secure condition and to provide for their removal by the owners in case they become dangerous. Perhaps regu- lations may be made with reference to the manner of construction, so as to insure safe- ty, but the prohibition ot the erection of