Billboard (Feb 1900)

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THE BILLBOARD 111 tb« cine last abov* cited It was held ihat -aa ©rdJiunce of a board of supervlsoni u vriDC a llamw tax upon ■« ibeep wblcta are ia"tur«« in the county, but exempUng from iiM> nayment thereol. those pereooe who list r i.-ir sfeeep a« taxable propETty hi the county, ...id nay taxes upon tbem as tueh. Is In viola- . Hon of siSion 21 of ArUc4e 1. of the Const!- tutton pKJhlMtlng the graDting of prUlIegcs aoi immunities to any clan of citizen* which ■in- not KTBnted to alt citisens." Ill Ora«ty va City of Rushrtlle. lOT Ind.. MC. 57 An>. Rcirts., 1S«, a city ordinance, re- iiuiVins non-resident hawkers or peddlers of iiierc'baiMilee not grown or manufaicrtured in Ui« (.■ouDty In wWcb said city Is Ettuated to luiv a license fee, was held UDConsilltutjonal. •Simrall vs. Olty of CovlOKton, 90 Kentucky, 414 8. c. 29, Am. Kepts., 398. is to tbe same i rfcct, and ex |»rte Fi«mk is cited with ap- i.roval therein. , ■ , Hut as we thtnlc It will hardly be contended thiat this provision Is constitutional, we shall not. at this time, deme further attention "rJie amount of H>e Hoense or licenses Is linrtilbltlre. 175.00 per month Is by Itself almost prohtbWIve, at least Eo much so, that a monopoly inevitably reEUlts—but |150 added to this, makes tile license a probibitive one— $900 per annum. Of the prohibitive auctioneer license, refer- rtd to alwve. Judge Owen said: "There is aDother objecr' tn to that portion of EBld ordinance lnvoIv>ed In this proceed- ing. As before stated, the city has power only to license and regulate tbe occupation of auctioneer; It has not power to restrain, suppress or prohibit the some." "As tbe selling of ieweqry. watdies and plated w«re at retail, wholesale, private sale ur auction. Is not malum in ae. it could not be seriously contended that tlie city could lu BO many wvrds, absolutely prohibit the saSe of the satne by an auctioneer. If it can not be done directly, can it be done indirect- ly? Out tile city, under tfae gulee of a rev- enue license, fix a rate so exorbltatntly high, that any one- desiring to engage in the busi- ness can not. as a businesB proposition, af- ford to pay the amount fixed? This Court thinks (hat can not lie done legally. "It is apparent upon tiie face of this ordi- nance that the rate of *2,700 for a six months' license to seH jewelry, watches and plated ware at auction, was Intended to t>e, and in fact is. In restraint of said bUElness and pro- hibitive thereof. Oonsequently. said part of said ordinance is inoperative and void." Unless bill irasting and sign advertising Is. as a busiuees, malum in se. a nuisance, it can not be prohibited directly, or indirectly by prohibitive taxation. "Bttl posting Is a Uwtul buElnese." So says tbe Supreme Court of tlie Stale of California In the case of Merchants' Ad-Sign Company vs. Sterling. 121 Oal.. 129. at p. ISl. 'Aiid. in the recent case of ex parte Mc- Kcnma. S8 Pa&, 816, Ohlef Justice Beatty of the Suprnne Court of this State, in directing the discbarge of the petitiooer -McKenna, brought before the Supreme Court upon ha- beas coitus proceedings, for the violation of an ordinance of the Olty of Fresne, Imposing a license tax of taOO per quarter upon all per- sons oarrylDK on a trading stamp business, says: "Id support of the ordioance It is contended (hM thn tradteg-stamp device is a lottery in disgniae, and therefore immforal. But we can not see that it lias any reBemblaiice to a lot- tery. There is in it no. element of dwnee, and lAMbinK in tlie nature of Ksnring. It ap- pears -to be simply « device to attract custom- ers, or to induce those who imre bought once to buy again, and in this aspect is as inno- cent as any form of advertising. And. lie- sldes, if it were a lottery in disguise—a mere device to ohiak a gambting scheme—it would be unlawful, and not Ote subject of a licence. The ordinance can not, therefore, be apimd on tills ground. It is not an ordinance to prohibit an Immoral practice or to regulate a hazatdous or offensive business, or the con- duct of a lawful game or public exhibition. It is. under the guise of a revenue measure, an evldeint attempt to put an end to tbe issue and redemption of trading stamps by levy- ing a dIscTimlnating and prohibitory tax upon tbose dealers who resort to those methods of attraeting customers." Apparently the Chief Justice Is disposed to regard advertising as ionocent, and one thing IS clear, under the reasoning of the Chief Justice, which is. that if ttiere is anything sbout bill pcetlDg and sign advertising, which makes it immoral or unlawful, then it can ■rot tw lloemsed. It but remains to consider the ordinance as an exercise' of the fmlice t>ower vested In the fity of lios Angeles by Section 11. Article II. of ihe OoQEtllutlon of the Slate of California. This Is not tbe first time the iiollce power of tbe city has been invoked by ordinance to regulate the construction, erection and mainlenance of bill boards. Indeed, the li- censing feature In tlie ordinance In the case at bar havlog tieen disposed of, it is aeton- itfHIog to iind that the regulations In tbe present ordinance are so nearly like those (H>ntaln€d in the former ordinaztce wtilch was declared unconstitutional by the Superior Court of lA» Angeles County. June Hthk 1898. Under the old ordinance it was. In brief, made unlawful to build', erect or maintain, along the line of any public street or alley of said nty. or wHfaIn thlHy feet of such line, any Bin board, sign uoard. advertising sign board or other t>oard or structure intended to bo used for advertising or sign purposes, any l«rt of which exceeded ten feet In height ntoasured from tbe surface of the ground to IIH' highest point In said structure. Inaa- ">uch as the present ordinance has all the \ii «i. and more too, which caused the Court, "irough Judge Van Dyke, to declare the old "Mliiance ttoconstltuHonal, we deem' it un- iK-oeswry to set forth In full the argument riuii was made against the ordinance on that ""•caplon, and (h»11 append hereto the opln- '"" <*ellvered by Judge Van Dyke In the cate '11 wMoh said ordinance was declared un- • oustKutlonal—tbe case of ex parte Wllshlre. '■"■y claimed that the public necessity »lili-b r»I|(4 Into existence the old ordl- I'.'L'J."'' .l^*"*' language of Judge Van ityki., 'to pratc4A liie rllizena against the dangers of said struclurra, on awount of their 1 liability to fall or be blown over, and also fronuljhelr combusUble nature," and, in ahow- InCI that tMs alleged purpose was not effected by the ordinance, or if effected, was accom- plished In ain oppreseive. unreasonable, and diserimlnating mojiner. he says: "But it win be seen that the ordinance has no regard to the material of the struc- ture, or its strength, nor does it prohibit the ei«ctlon of a structure over ten feet in height or wMhia thirty feet of the line of the side- walk If It be net intended to be used, or used for advertislnK purposes; and it is difficult to see how a stnicture of ten feet or over, and witlhin thirty feet of the sidewalk, is more di«ngerous from the fact that it has an ad- vertisement upon it. If the structure were of iron instead of boards, and built in tbe most autiGtantlal and durable manner, within thirty feet ot the sidewalk and over ten feet high, and used for advertising and sign purpoe^^. it would be in violation of the terms of the ordinance. Again, it makes no difference whether tuch sign hoard be erected in the central, busiuess portion of the city, or away out in BiMrEely-settled districts. It is difficult to see Irew the erection of such a bill board, witii an advertisement on it, in the outskirts and unsettled portions of the city, for in- stainee, could affect the public morals and h«allQi of the city, or endanger life or prop- erty." So in the'ordinance in tbe case at bar, sec- tion 3 thereof is limited to the erection of bill boardi.. advertising sign lioards. and other similar structures, to be used for advertising purposes, and Judge Van Dyke's unanswera- ble reasoning applies to its fullest extent. So. too. in this, as in tbe old ordinance, no distinction is made between substantial and flimsy bill boards, nor of tbe material out of which they may be constructed; nor' whether they are erected In its? heart of the city, or in the outfkirtsL Indeed, under sec- lion 6. the Council of the City of Los An- geles has. by inserting the words "or else- where," directed tliat all bill boards, no mat- ter where situated in the City of iJos Ange- les, regardless of their proximity to public places, be reduced in height to six feet. ATid so a bill board or real estate sign, seven feet in height, in the midst of an undivided 20-ai're tiact ot land in Garvanza, must, if this or- dinance be held valid, be red'uced to six feet in height. There are yet other unconstitutional feat- ures ot the oidlnance involved lu the case at bar. which either were not existent in thc cid ordinance, or were not pointed out by Judge Van Dyke in his said opinion. The measurement as to tlie height of the bill board is based by measurement from . tbe ground n^ereon it stands. It is notice- able that in the most proniiueut locations in Ibe city, where the traffic is greatcEt. the tew available localciis for bill bcaids are upon lota that have already been excavated for building purpcsjes, or which are far below tbe level of the graded street. It is of i-ourse. an oppressive and useless rcHjuIrt-meiit that in such a ease as that the board should be re- stricted to six feet In heigiit above the sur- face of the ground. The basis of measure- ment should be from tbe level of the street. The distance at which tbe board is directed to be set back from the street line should be made pro|>artlonate to the height of the lioard. It is a needless, and therefore unlawful, re- striction upon the rights of the individual to requin: a board seven feet in Iteight to be sol liack twenty feet from tbe street line- ten feet would amply protect tbe pulilic from tlie danger of the board falling: «-blle. on the other band, if there is anything in the con- tention tlmt bill boards are liable to fall, a twenty-foot regulation will not protect the passers-by on a street, when a thirty-foot bin bodid gives way. .\gain, bill boards are forbidden of a cer- tain height "along the line, or within twenty feet of the street line;" it is obvious that the restriction as to the twenty feet is un- necessarily broad, and therefore oppressive and void—it should at least be limited to bill boards tirat run in a direction parallel with the street line. There is no s^oucd rea- son, so far as this terror of a falling bill beard is concemed, why a blH board which runs at right angles to tbe street line should be restricted in height, on the same basis as a ImII board running "along the line" of or parallel with the line of the street—for the former is bound to fan on the lot. no mat- ter which way it falls, while tbe latter moy fail on the street. Since Judge Van Dyke wrote tlie opinion re- ferred to, the Supivme Couit of this Stale decided the case of the County of Los Angeles vs. Hollywood Cemetery Association. 124 Cal., .111, and as it has some bearing on queEtions already discussed by us and on the question us to the validity in the present oidinance of the pro\islcn conferring upon the Council an arbitniry power to withhold or grant a "spe- cial bill posters* license," we shull quote from it: "The complaint shows that the Supervisors of I.<;s Angeles County d-uly passed an ordS- r.anc-e, the first section of which reads: "It shall be unlawful to locate or establish, ex- tind or eolaige, any ciimetery, graveyard, buiying ground or cieroatory within the lim- its of th* County of Los Angeles, without l?trmifeion of the boiard of supervisors first bad and obtained. • • - "Fiom the opinion of tbe learned judge who sat in the cas-e (prinited in the record) it is manifest that he regarded the establistiment of a cvmeteiy for the tntepm-ent of human btallcs "as an avctation which may well be prtsunied to 'have an injurious tendency." It is ttot so stated, but the opinion proceeds, I think, upon the assumption that a cemetery is a nuisance per &e. or at least may be so rtgai'ded in measuring the extent ot the poilice pcw«T to regulate it. We can not concur in the iiosition that the business of conducting a cemetery is an a\o(^ation presumably hav- . ing an injuiious tendency. We think, how- ever, and in lliis we quite agree with tbe learned counsel for respondent, that there are many considerations too' chvious to require enumeTation. whiich bring cemeteries withdn the irower of reoionable regulaitlon by both city and county municipalities. (The Court then Quotts Article XI., Sec- tion 11, of the CouL'titution of this State.) "Of this provision it was said in ex parte Sing Lee. 96 Cal., 354. as to cities and towns, that it is taifflciectly bread and comprehen- sive to susxain tile enactment of any ordi- nance h'aving a reaeoutabie tendency to pro- mote the health, ccmfort, safety and welfare of aH the inhabitants of tbe iminicIpalUy. and which wouM not be in co-ufllct with some gen- tml law." "Is the ordinance before us a reasonable exercise ot the paver conferred by the con- -fctitution and statute upon boards of super- vitors. and as applicable to counties? It can not be assumed th'Jt tlte supervisors in the present cas» legislated with lire view to reach tbe defendant's enterprise specially, or that tbey knew it was in contemplation when the oidinance was emurted. On the contrary, it must be presumed that their purpose was to pronwte the welfare of the inliabltants. The validity cf the oldinan-ce makes it unlawful to establish, extend or enlarge any eemetery within the limits of tbe county wlchoui ;the permissicn cf the supervisors. It does ■ not attempt to deal with or prohibit private inter- ments nor with inteime-nts in cemettries al- ready cstabli-'bed. It d-et.'lares that no part of Lts Angeles, tiowtver remote from any city or town, evcU though the location be suita- bl«;, for the purpose, no cemetery sAall be establlslied. except by the permiistiou of the board of supervisors, flrs't obtained. • * Wc can see: ho more reasouwhy the right to es- tablUli cemeteries in a county should bo sub- ject to the will; of the supervisors tiiau that tbe'light to engage in any ether lawful en- terprise should be so circumscribed. There is a wide dlfTerence between regulation and prohibition—between regulatory provisions as the ««uditions imposed for the exercise of a lawful occupation, and inaklng tba right it- self to d'eper,id upon tbe uirrestraiued will of the municipality. It w-ould bar^Hy : be contended tiiat an ordinance declaring It to be unlawful to .eugage in-the business of farm- ing or merchandl^ug: in the counrty without the penniSEion Df the supervisors would be a reiasooabie'exercise of legislative power, or could reasonably be said to be exercising the power to regulate. The supervisors may im- pose a license,'the payment of which shall be a cohfiltioh to the enjoyment of the privilege of engaging in lanrful occupations; they may rc-giilate the manner of conductliiK tbe busi- ness if it Ik of a character tending to be in- jurious; but. If the business be lawful, and having no in-jurions tendency, rbey can not say wlio sball, and who shall not exercise the light itself. Under the guise of regulating a buslne-ss. the municipality can not make prc'bibition possible by committing to tlie of- ficers cf the mUBlclpality the arbitrary power to engage in tliat business. We do not think it was ever intend'ed by the people in crfiain- ing the section of the constitution referred to. or cf the legislature in the statutory en- actment, to include in the pow^r to make and eirfcrce regulations, a power purely personal and arbitrary. "For, as was said by Mat- ONE OF CRAWFORD'S STAR BOARDS, - SULLIVAN, IND. thews. J., in YIck TCV> vs. Hopkins. 118 C. S. 33*>, "tbe very idea that one man may be com-^ pelled to bold his life, or the means of Ilv-il log, or any maberial life essential to the en-|i joyment of life, at the mere will of another,'' seems to be intolerable in any country, wberey tnodxxa prevails, as being the essence of;' slavery." fi Tbe Court then cites the cases of Austin^ v«. Murray. 16 Pick.. 121. and.State vs. SxAt.^ 61 Md., ^7, 18 Am. Kep., 105, where ordi-p nances forbidding a lawful oicupatlon to b^ carried on In tbe city limits, on account ofl its injurious character were held void, be-t cause an absdute pn^ibition of a lawful oc-ji eu|>atioD. which might, on tlie remote out-i' skirts of the city, be carried on without io-f jury to any one. i W>e think, from tlie case loet above cited.'^j it is plain that tbs provision of the ordinance^ which requires the obtaining ot permlseioiif' of the Council before erecting a bill boardi ov^er six feet in iKlgbt, is plainly void. Tbe case of Cicero Lumlier CHympauy vs.: Cicero, 176 111.. 9. 12 L. R. A., 697, is instruc-s live, on this pbint, and on the further pclnt.i^ which may call for coosideratton in the case ' at tiar. as to when a void provision in an or- dinance renders tbe whole ordinance void: l "But the other ground, upon which the or-u dicance of May 23. 1896. is attacked as in-tt valid, is of a more serious character. By thefe ordinanjce of May 23. 1S96. all persons arei fcihidden to take any omnibus or heavy ve-i. hk'ie or any traffic vehicle, upon any of the.' boulevaids therein named, except privateit wagons conveying families, "or upon special^ permission of the board." The meaning ofi this provision is that all traffic vehicles, ex-i* cept private wagons conveying families, are- only forbidden tbe use.-of the boulevard, inp case tbeir owners do not obtain the special permission of the board of trustees. In otheii words, the discretion is lodged with tbe board^ of trustees to permit or not to permit traffic, vehicles to be used upon the boulevards in',' question. Tbe ordinance, iuEofar as it In-^J L vests tbe board of trustees with the discrei(i lion here indicated, is unreasonable. It pro-; ' hibits that whicb is in itself, and as a gen-' eial thing, perfectly lawful, and Isitves tbe power of permlting or foihidding the use of^ traffic teams upon the tioulevards to an un-^: regulated official discretion, when the whole, maiter should be regulated by permanent lo-i cal provisions operating generally and im-jl partially. The oidinamce Is not general in^ its operation'. It does not affect all cltizeuB> alike who use traffic vehicles. It is only^' persons diiving traffic vehicles upon the Im>u-^ lerards ivittDout the permission of the board ;< cf trustees who are subjected to the penalties, of the ordinance. Tlie oidinance in no way;; regulates or controls' tite discretion vested' thereby in the boaril. « • • (Oases cited.) ^ "it is insisted by appellees that tbe ordi-J nance of May 23, 1896, is not wid. in the re-i; siioct hero indicated, as to the whole of thet oroinance. but only void, as to the part of lt~ which makes the use of traffic'teams upon an avenue or boulevard dependent upon the spe- cial permission of the Iward of trustees. In supiwrt of this contention the well-known j rule IS invoked tthlat. where certain provlsionst cf an ordinance are void, the Cburt will not* dettare thoEe provislcns void relating to thef subject matter of the ordinance which are} distinct and separate from the void provisions.'. If an ordinance, or even the same section off an ordinance, ttyntalns two separate provis-l ions, retatins to different ai.-ts. with distinct! penalties for ea(h, one of which Is valid and| the other void, tbe ordinance may lie en- forced aa to thot part of it which is valid., W^ben an- ordinance consists of E«reral dis:4nct} ar.d independent parts, although one or morei of tbem may be -void, the rest are equally valid, as It the void clauses bad been <»nltted. But where an oTdinamce is entire, and each part haar a general inHnence over the rest, apd one part of it Is voldi, the entire ordi- nance is voiA. The void part of tfae ordinance., makes the wMe mdinBUce vtdd it the void 3 and 'ralld parts are so connected as to be ea-1 sentlal to eacb other. 1 Dill. Hun. Cor^ 4th )< ed., sec. 141. We are inclined to think thata the ohjectianable clause Is here so intimately Ii connected with the btber portions of tbe ordi-'| nance as to permeate Sis vrfaole and make |f tfae whole vdd. Thie ordinance does not posi-;| tivdy and absolutely exclude all traffic teams. |l but It only excludes such tralDc teams as the;! board of trusteed may not specifically peimit|: to pass over the avenue." |1 In the case at bar, we think tbe entire or-i diconce must fall, and upon this point we'-'j s'hall refer to an opinion delivered by Judgeij Trasfe. of the Supeilor Court of Los Angeles tl County, appended to this bilef—la tfae case off- ex parte B. F. Knox. Nto. S02. f, The only point remaiiriiig for consideration^ iS' the Council's limitation upon itsdf. not toF- fonslder an application for leave to erect aS bill bbard. over six feet in height, without it| apiiearing that notice has tieen given to thei adjoining property owners of such implication.} And ttiis is all that amounts to, for it will be r observed that the granting or refusing ot tlrnt permission rests with tlie CouEidl. and even.' if all the adifoinlnc; property own-ers were f present at the hearing of the application and | ronsenting. it wo<dd be within the power of* the CounctI to reject the application. If the? danger sought to be prevented by these many I regulations is tire danger of a bill lioard fall-1 ing cn the street. Imw can the adjoining prop-i erty owner consent to the operation of that i danger? This is a matter of public concern, j ill which the adjoining property owner bos no } more interest than' any citizen using tin; pub- i lie streets, and in this respect, the idea of i lequiring the consent of the adjoining proper- i ty ovirners is even less untenable, than In the : ever-recurring example of the Chinese lann-! dry. which lime and time again tbe (MurtsS hitve held' van mt he subjected to such a pro- » vision'. The most recent attempt to make the es- tablishment of a laundry dependent upon the will of the adjoining propeity owners, met with the usual defeat. And on this bead, we wnii merely append to this biief the opin- ion of Judge Tiask of the Superior Court of Los .\iigeleG Oounty, filed in the case of ex parte AVong Giiig; It may be wt>ll. in closing, to call the (TourTs attentlOD to a passage in the oase ot Yick Wo vs. Hopkins^ US V. S.. 336. from