Billboard (Feb 1900)

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I THE BILLBOARD In the Police Court of Los ' Angeles. IjBillboard Ordinance Comes Up. Brief Pre. pared by Wilshire'* Lawyers. 7 Tbe flgtt at Los Angeles, which the bill iwEtins woi'W has been natednics wWi so mui.'fa interrst, come to triail In the police l-«urt on WcdWEEday. Joa. 10. Hie following brief is a dopy of the one presented to. the fcourt by Attorney Weabore Burmett, Wil- sHire's attorney, airguins for a demurrer. Th'a i-ourt took it und«- advisement, and a Judg- ;i!ent will be rendered on Wcdn«sday, Jan. 24. "Wbile the uneonstltutionality is very dearly shown in the brief, stm a poiioe inOgB, as a -ule. likes to ebrow the responsibility of a de- risloD on constotntional grounds upon the righer courts, to even if be does overrule the kmurrcr, it really means DotMns- If this lappens. an appeail by means of iMCbeas cor- >us tc tbe Superior Court will be made, wbere Mlabire wi*l imCoubtedly get a favorable de- ■iiiau in ^ort order. Pbe People of tbe State of Califorata, piaint- ifr. vsi. H. G. Wilslilire. defendant: 3rief on demurrer to comptaint. Tbe defendant has been arrested on tbree separate charges, made by tfiree separate nmplaints, for the viotation of Ordiiaaince ^o. 5.9SC. New St-ries of the C5ty of tioe An- ;c4€e. ecitatled "An ordhKajnce regulating tile >ufin¥G6 of MH posting and sign advertising tnd the ersction, conEtruetion and malnteu- ince of bill boards. adTiertiMDg eign boards ind similar strucftures for aaveitising pur- WttB." , . ^ Defendant has dcnrarred to each complaint ipn the ground tiiat tbe facts tliereia stated [ io not coostitutK a public offense. I The consCitutioi»aity of tlie ordinaDCe is \ lucfeOiohcd. and if tbe Court is of tibe opinion j hat the ordinance is inralid, tlren the com- ilaintB elate no public offenee, and tbe de- endaiit muet be discharged. The ostensible purpose of the ordinanice is. I !£ declared in tl>e preamble flrercto, for the i 'egudation of bill posting and sign advertis- I eg. and Cbe erection, construction and main- I cmance of bHl beards, advertising sign boards i end simtiar structures for ad-vertislng pur- I >cses in tbe City of Leu Angeles, and provid- . 'ng for tl»e licensing of such businces. The power of tbe City cf Los Angeles to ''nac't an ordinance of ttSs nature is found in i>ub-£«cticn 13 of section 2. ot Article I. of I file Ctiarter of tbe Ctty of Iios Angeles. (Laws iif 1889, p. 457), wWeh ,said section Is as ttA- -ows: "13. To license a0d regulate the carrying on \ id any and aa professkMis. trades, callings, ' md occupaticns csurled oa vitbln tbe limits >«f Eaid citv, and to Bx tbe BiDoni:<t of license - ' ax thereon to tie paid by a}] persons ragaged jn Euch profetsions. trades. cslHngs or occu- Mtioiis. and provide tire manner of enforctag ''fix paymeEJt of tfce laroe: provided, ti:>at no • liscriminsitiion sball be made between psrsons hrogaKed in tbe same baiiness otherwise tban f Dy proportaoEiing tbe tax upon any business rto the amount cf bueinees done; and to II- I .■C'HEe. regulate, lestrain, supprera. or proliibit [pay or all laucdiies. Hvery and sale staldes. [-2a*tle and borse corrals. Eiaugtrber bouses. Koutclier shops, hawkers, peddlers, pawnbrok- DTB, (Sanrce cellars.. UKicdeons. Etoows. cir- juses. public biiliaid tables, tnwting and ten- |.3in aCleys, and Co suppress and prcUbit all ITaro banks, games of chance. gaml>ling iiouses, tables, or stands, bawdy bouses, the tsseepicg of bees wtttein tSie cWy limits, and my and all cbaoxious. oifeEsive. immoral, lludecect. or di&TeptttaI>le places of business ' yr pratJtlice." !: It may be that the police power eon*err»;d 3pon municipal cities by Section 11, Artirfe 'Kl., of tbe Constitution of the State of Cali- ~ rs also Invoked. Said section is as fot- ! "ows: i "A-Dy county, city, town, cr township may 5 •nake and enforce witMn its limits all such 1: ccad. police. Eamitary and otirer regulations are not in conflict wttb geoeial laws." ' . We contend that Ute ordinarace is void, and l^b^ argue its imralldity from two distinct SpcStfts of view, based upon, the particular t *iower invoked to sustain such legislation, si-i PirEt: As a busintos or occupation license ir or Qax—an enactment emanating from the . {i:hart€T power to license. ff Second: As a potHte leeulation—an enact- l jnent emsnatins frmn tbe police power con- :>Terred upon muoiclpatities by tite Constltu- jii- Ard arguing from tbese two points cf view. | ;Vjre have come to tbe ccr"elusion tkat the or- | ':,^loance is void, for the following, reasons: fr, 1. As K BTbitrarMy efscriminatts between • -I Sersons engaged in the same geneml business i 3t advertising, between bill pesters and sign j^dvertisers. as deflr«d in the ordinairre. and : I itber forms of cocductiDS tbe same bUEiiness 3f advert^'lng. ; t 2. As it unlawfully discriminates between < !, persons engaged in lire business of bill post- I' ing and sign advertising, as deBned in the ordlEan'ce. the bill poster amd sign adver- tiser, on the one hand, who uses in his busi- nets signs of a greater height tban six feet, and. on ti>e o«li«r hand. th« Mil poiter and sign advertiEer who limits bis signs to six feet in height, or lees. 3. As it attempts to tax a single act or acts done in pursuance of the busineee of bill post- ing and sign advertising, and not the business itself. 4. As it is uirceTtain asnd indefinite. 5. As it prohibits and does not regulate. 6. As H Is' inconsistent with the laws and police of the State. 7. As it is oppressive, impartial, unfair end not general. As an occupation license ttie ordinance is not void, as It violates tbe proviso contained in said suI>-Eection 13 of Sec. 2, Article I. of the Charter of the C$ty of Los A-ngeies. which provides thcbt "no discrimination shall be made between perExnts engaged in the same businiaeis, otherwise tiuajn by proportioning the tax upon any businees, to the amount of the bUEinese done." The business ot bill posting and sign ad- vertising is but a form of I^be general burli- ness of advertising, and can not, by itself. l>e considered as constttuing a business or occupation wliich, for purposes of taxation under the said section of the Oiarter can be subiect£d to a tax. while other forms of the same general business of advertising are ex- empt therefrom. In other words, the ordi- nasiee is'not bread enough to cover all persons in tbe ^me business, end consequently there exists a discrimination between those persons included in, and' those persons excluded from its opemtion, all of them l>eing engaged in the same business. There is but one business, the bu^neEs of advertising, and to exempt frcTO taxation ceitain forms wbich the busi- ness of adnrertiatng aEsumes, and to subject to taxation certain ether forms of the same business is "a discrinsination lietween persons engaged in tire same buslisefis," violative of ebid proviso. -We contend that the elassifyiog of advertis- ing conducted in the form of UN posting and &igo advertising, particularly as tliese terms are defined in tbe ordlnanee, into a bUEiness separate and distinct from advertising busi- neesi, conducted in well-known and ^milar forms—sucb as thebibe curtains, entertain- ment and theatre programiDes. newspapers, stereopticon displays upon tbe walls of build- ings, tlie dteptay of lithographs in vacant windows, the house-to-house distribution rf adveitasing matter (if not included in the or- dinance), and above all. the posting, paint- ing or taxHdng of advertisemecits upon struc- tures that are not bill beards, or advertising sign boards, or oMlier similar structures, sucb as the wi^s of houses, buildings, fences and other structures "sot intended for advertis- . Ing purposes," is a purely arbitrary dassifi- oaticnv end not founded upon any reason. It surely requires no argument to demon- ' ^rate that a person engaged in outdoor ad- Tortisjnfr. who displajrs a po^er on the wall cf a buHding. or in a vacant store window, cr wlio tacks an advertiseaient on a fence or wall, net intended for advertifAng purposes, is as much engaged in tbe same advertising buE<inEse as is the man who" disfdays the same advertistroect cn- a bill t>oard. Yet the per- son- engaged in tbe tjill board business has to p&y 175 p<r quart«r, cr go to jail, and tbe cucdcor advertSser who displays the adver- tisements of his customers upon structures net in'lended to lie used for advertising pur- poses does not liave to pay a cent. Of course this amounts to unlawful discrim- ication in tlDa same business. The same line of argument is even more plainly apj^oable to the discrimination which is created by the ordinance between bill poet- ere a^d sign advertisers as defined therein. Id a^itton to the licens fee of $75 per quar- ter, a :fiirther license fee of $150 per quarter is imii6sed by section 5 of tbe ordinance, dee- igtfated "special bill posters' license." upon bin boards more than six feet in iKight. and maicy onerous conditions preoedent are im- posed, which must be compiled with before this epecial license can be issued. It is obvious -tfaat the heiglut of a biH board, taken by itself, is not eren suggestive of the amount of buEiness done by tbe owner tiiereof—and. as the only discriminiation that is permitted tKtween persons engaged in the same businees. is by "proportioning the tax upon any bufinees as to tbe amount of busi- ness Oone." fcr this reason, if for none other, the ordinance, or at least all part of it in reference to this special bill posters' Hcer»». End tile conditions as to its issuance, is void. The case of ex parte Eraaik, 52 Cal., 606, is in point. It was held in that case that "an ordinance cf a city, passed under a general power con- ferred by its charter, wiiicb exacts a li- cense for Eelling goods, and fixes one rate of lieeDSe for eelling goods which are within tbe corporate limits, or in transitu to the city, and another, and much larger license for selling gocds whiob are net in the city, or in transitu to it.'Is Inralid. as unjust, un- equal, partial, fippresslve, and in restraint of trade." - ■• Of this ordinance the Court says: "It dis- rriminat*»R l>etwcen merfrhants In the feme place, diealing in tbe same kinds of merchan- dise, for no better reason titan that one deals in goods either actually in the corporate lim- its, or In transitu under a bill ot lading, while the other deals In goods outside ttie corporate limits, and not in transitu under a bill ot lading. If this kind of discriminatlou be le- gitimate and valid, there Is no reason why a iui'i<chant having goods in a warehouse on a particular street might not be required to pay a tieense fee of ten thousand dollars, while another merchant doing the same kind ot bUE'Inees, In the same city, and with his goods stored in another street, would be required to pay only ten dcllars.* * .* In the case of Mayor, etc, vs. Attbrop, 3 Crio., 554, the Su- preme Court of Tennessee, in an able and learned opinion, discusses the validity at an ordinance very similar to that now under re- \lew. and hold it to be void on the grounds to which we have adverted." Tbe hypothetical case suggested by the Ccurt is pn^ettc ot tbe advice in the ordi- nance In the case at bar. By way of illusttatlon It win be proper to refer to the auctioneer license case decided by Justice Owens, Police Judge of the City of Ix>6 Angeles, just -three years ago, as any hypothetical case, and It is squarely in point with Uie case at bar. This case is entitled The People, etc.. vs, F. T. Keetar, No. 20,660, and in sustaining tbe demurrer interposed to Clie complaint, on tbe ground that the complaint did not charge a public offense. Judge Owens on March 3, IS97, filed a written opinion, holdteg that the ordinance for the violation of which the de- fendant was arrested, was void. By said ordinance, auctioDeers. for the pur- pose of licensing, were divided into two classes: "For every auctioneer or person who sells jewelry, watches and plated ware at public auction, on commission or otherwise, either for bimeetf or any other person, $15 per day, payable semi-annually, in advance." "Fot any auctioneer or any person Whi^ sells peal estate, or any goods, wares or mer- cbandise, other than jewelry, watches and plated ware, at public auction, on commission or ottierwise, eitlier for bimeelt or any other person, $5 per mooUi, payable seml-aDnualiy, in advance." Judge Owens, after setting forth the said subcfivisioii 13 of section 2, Article I., ot tlie Ciiarter of l/os Angeles City, says: "It will be observed that said subdivision 13 piovides for three things: Isit. To license and regulate the carrying cn of any and all professions, etc., to fix the amount t>t license taxes, etc.. provided that CO discriminatloo shall be made lietween per- sons engaged in the. same business, other- wise tban proportioning the tax upon any businees to the amount of business done. 2nd. To license, regulate, restrain, suppress, or prolribit certain kinds of business therein named. 3rd. To suppress and prohibit certain games and places described. It Is apparent that auctioneers come within tbe first olassiBcBtiao, and tliat tbe City Ooua- cil con only provide for licensing and regu- lating said calling or occupation, and can not restrain, suppress or probibit tbe same, by ordinance or otherwise." The Court then apidies Ore reasoning in ex parte Frairft, 52, Oal., 606, to the auctioneer license, and concludes tJiat the ordinance cre- ates an unlawtiri discrimination between per- sons engaged in the same business—auction- eers, and vras void. It is quite plain that the ordinance in the case at bar is urdawfuHy discriminaang— , contrary alike to tbe proviso in tbe charter, and tbe Constitution of the State. If the occupation of pcsting an advertisement on a structure intended for advertising purposes, is to be considered a different occupation, for the purposes of taxation. frxHn that of, posting the same advertisement on a structure not ii;tended for advertising purposes; and, again, it posting a bHl upon a bill board more than six feet in height is to be considered a differ- ent occupation, for the purpose of taxation, from that of pcitins the saine bIH upon a bill board less than six fett in height, where is tills system of arbitrary classifioation to end? Fersonal si>ite will tbus be enabled to single out tbe objects of its rmlioious attack, and CO occupations, nor tbe investments made to carry tbem on, will be worth anything, when at a moment's notice they may be subjected to a license tax, wblcti, If not probibitory, win make competition with tbeir more fav- ored rivals an impossibility. In the foregoing argument It has been point- ed out that the ordinance loses of the business which it purports to license and regulate, and mSkes the means by which the business is tarried on. limit and define the bUEiness licensed. So in Sec. 6 of the ordi- nance this idea is rcgically carried out and it is made "unlavrful to keep, use or malnteln any bill IxMrd, sign, advertisement or other similar structure more than six teet in height in tbe City of Los Angeles, measured as here- in specified, along the line of, or within twen- ty feet of tlie line of any public street, lane, alley or othw public place in said City, or elsewhere in said city," and by section 2 of the ordinance the definition of bill posting and sign advertieing Is made to include the act as well as the business of posting or paint- ing, etc., and the exceptions made In said section 2 of Euid ordinance to the operation ib-treot thereinafter referred to> clearly Ehowa this to be the spirit as well as the letter ot the ordinance. Titm a single act In the con- duct of a business is attempted to be regu- lated under a licensing ordinance. Whether such legislation can be sustained as an exer- cise of cbe police power is hereafter discussed. Certainly It earn not be sustalited as the reg- ulation of a "butiness." In the case of Merced County vs. Helm, 102 Cal., 1.59, an ordinance was passed by. said County, fixing the rate of County license taxes, upon certain occupations within the County, under the power given by tibe Coun- ty Government Act, "to license, for the pur- pose of regulation and revenue, all, and ev- ery kind of business not prohibited by law." The ordinance Iinpoeed a license upon "all pernors • * • * wlio ■ sell * • Sfrirltuous liquors." The Court said: "The riglit to demand a license tax as a condition of engaging in any butiness within the county, must be express- ly conferred upon tbe county, and the right to ImiMse a tax upon a 'bushiess,' will not au- thorize imfioeing a tax upon indtvidttal acta connected with such business, nor can a It- cease tax required for one business be de- manded tor any act or business, not specified in tbe ordinance providing for such' taxes." * * * "The tax fixed by tbis section Is a charge imposed upon tlie sale, and not for carrying on cr engaging in the business of selliiig. It applies to each sale befcre it is made, and for a single sale makes Ok person liable for the full amount ot the tax. It Is not Imposed upon tbe 'business' ot selling, or limited to those engaged in such 'busi- . "A single act does not constitute a busi- ness, and wben a sale Is but an incident in, or tbe firml act of, another business. It can not be said to be tlie business which is car- ried on and transacted." "One whose busi- ness is the keeping of an eating saloon, where wine or beer fas furnished with meals, can not be said to be engaged in the 'business' ot sell- ing tblg whie or beer, and an ordinance re- quiring a license tax upon the business ot keeping an eating saloon would not Justify an additional license'tax for the bsutnese ot selling beer In connection with the meals pro- cured at such saloonl" "The oidlnance in question is not limited to sales as a beverage, or in a dramebop, or by keepers ot tippling saloons, but applies to every person who sells tbe article wUiitn the limits or Merced County. Neither is there any limit prescribed as to the quantity which may be sold, or the purpose tor which, or the person to whooi, a sale may be made. Its terms are sulBciently comprebeneive to em- brace any and all sales wMMn the county, wbetber the articles are soM to be carried out ot tbe county, or tor purposes other than buman ooneumpUoD; whether tbe sale Is that of tbe innkeeper to his gueet.' or the wine- grower St tbe close ot the seattMi, or the brewer at his brewery. A sale'by a wine- grower ot tbe product of bis vineyard, or by a disttHer of the spirits produced at his dis- tillery, does not constitute a business of sol- ing wine or E^rits, any more than a sale by tbe mlUer of liiie flour ground M. his mill, or by the manufacturer of the cloth woven at bis factory, constitutes tbe business of sell- ing fiour or doth; and tbe power to impose a license upon a business does not authorize a tax. eliber by license or excise, upon the sale which tbe wine-grower or tbe distiller may make. "under the power conferred by the above section of the Oounty Government Act it would be competent for the county to impose » license tax upon, the buriness of manu- facturing dotb, or ot raising sheep, but it would not be comrpetent for it, under this autbority, to require ttie payment of a license tax from every person who should sell a piece of doCb which be had manufactured, or the wool from tbe sheep vrtilch bi had raised. Tbe businceB of distHling spirits, or brewing beer, or manufacturing wool into dotli. or grain into flour, or grapes or currants Into wine, or apples into cider. Is a lawful occu- pation, and while tbe business, as sucb, under the autlnrity given to tbe County, may be made subject to a license tax, tbe County can- not, uirder this autimity, impose a tax upon tbe individual sales of tiie product ot such businees, or upon all ot tbe sales made with- in each quarter of the year, or within any other limited period of time, tor tire reason tbat such tax Is not upon tbe business, but upon the different acts in ebe tramaictlon of the business. With the same propriety might a tax be imposed upon the pruning ot the viaee, tbe picking of the grapes, the gath- . erlDg ot the apples, tbe pressiDg into the vats, the barreling of the juice or its sale before fermentalion into wine." So in the case at bar—the ordinance makes the act of bill posting am) sign advertising the subject of an occupation or businees li- cense. It covers every real estate sign in> the City ot Ixn Angeles, whether the party main- taining it la engaged in the sign advertising bustness or not. This is tbe letter of the or- dinance: It is alto its spirit, as Is apparent from tbe proviso in section 2 tliereof, as fol- lows: 'provided, bawever, tbat no definition herein oontalned shall ^ply to tiie adverUsIng by-religious organiiatloBS ot meetings called for divine worship, nor to tbe. distribution by hand in said ctty ot advertisements from bouse to house or from store to store, by any penon, or bis asent. advertising tbe business in wMob such person Is directly engaged in saddCity." J »-t. Of course it tbese exemptlooe mean any- thing, they are unconatltutlotisl: they do, however. eerv<e the purpose of shoiwing that It wiBs the Intent of tbe framers ot the ordi- nance to license and tax tbe act ot bill post- ing and sign »dveitlsh>K and the act of bouse- tc-bouse distribution of advertisements, whether or not the posting or dlstrlbutloa is done in and as an act in t^e business of bill posting and advertisement fflstributlon, or as an adjunct to some other business. It ta the act ■ana not the business ot bill posting and sign advertising whiob the ordlnwnce atteinpta to license and regulate. Wltlle the ln«ent Is thus plainly demon- strated, we are not sure, that as to hou«e-to- house distribution of adTertlsemeots (there being no mention ot this form ot advertising in the definition of bill posting and sign ad- vertising), this ordinance covers It, and it so, hraa the old provision Impoetng an occupation tax upon It, by Hselt, been revoked, by the clause in this ordinance revoking all ordi- nance* and parts of ordinances In conflict titerewlth? "The uncertainty as to this mat- ter, and the uncertainty and indeflniteness which pervades tbe entire ordinance, should, of tbernsdves, invalidate IC It la elemental tbat an ordinance ehould be eo drawn that a citizen desiring to follow a particular oc- cupation Is apprised as to whether or not it is included within its provisions, particularly where the following of an occupation without obtaining a license tljerefor Is made a crime. Of court* the proviso, excepting religious organlzallcivs, and bouiie-to-hause distribu- tion by IocbI firms or their agents, advertis- ing the business In wbhrh such local flrins are directly engaged In tlhc City of tM An- geles, is void, violative of both federal and State Constitution, and In restraint of trade, and against the policy of the State. Kx parte Frank, supra. IJissen County vs. Vone. v. Cal,. 387.