The billboard (Jan-June 1900)

nmma^^msm^^ THE BILLBOARD THE BILLBOARD Bill Posters ig®&^ DEPARTMENT In the Police Court of Los Angeles. billboard Ordinance Comes Up. Brief Pre. pared by Wilshlre's Lawyers. | The fight at Los Angeles, which the bill {weeing would has been wateiitDg with so much interest, come to trial in the police lourt on Wednesday. Jon. 10. The following brief is a copy of the one presented to. the court by Attorney Welbore Burnett, Wil- 9bire"s attorney, arguing for a demurrer. The pourt took it under advisement, and a judg- ment will be rendered on Wednesday. Jan. 24. ["White the unconstitutionality is very dearly shown in the brief, stHJ a police Judge, as a -ule. like® to Shrew the responsibility of a de- rision on constitutional grounds upon the rigber courts, to even if be does overrule the kmrurrer, it really means nothing. If this lappens. an appeail by means of habeas cor- >us to the Superior Court will be made, where Miahire will undoubtedly get a favorable de- rision in short order. Phe People of the State of California, plaint- iff, vs. H. G. WidsMre. defendant: 3rief on demurrer to complaint. The defendant has been arrested on three separate charges, made by three separate ■omplaints. Tor the vfefeition of Ordinance *©. 5.9SG, New Series of -the CSty of Los An- jeies, entitled "An ordinance regulating the )U EiiKts of bill posting and sign advertising tnd the erection, construction and malnteu- ince of bill boards. advertising sign boards tnd similar structures for advertising pur- wste." . Defendant has demurred to each complaint >n the ground that the Tacts therein stated io not constitute a public offense. The constitutionality of the ordinance is luetAioned, and if the Court is of tbe opinion hat the ordinance is invalid, then the com- irain'tB state no public offense, and the de- endaut must be discharged. The ostensible purpose of the ordinance is. & declared in the preamble thereto, for the Tgulation of bill posting and sign advertis- og. and t!he erection, construction and main- enanee of bnl boards, advertising sign boards end similar structures for advertising pur- >cse"s in the City of Los Angeles, and provid- . ng for the licensing of such business. • The power of the CHy of Los Angeles to »nact an ordinance of this nature is found in >ub-s«cticn 13 of section 2, of Article 1. of Hie Charter of the Ctty of Los Angeles. (Laws if 1889, p. 457), which said section is as foi- ,ows: "13. To license and regulate the carrying on ijrf any and all profesetocs. trades, callings. s ltd occupaiaciis carried en witbin tie limits I of Ettid citv, and to fix the amount of license - ' iax thereon to be paid by aM persons engaged jn Euch professions, trades, callings or occu- J jations. and provide the manner of enforcing fftx paymeE't of fete same: provided, tfrat no f liscrimmation stool 1 be made between psrsons I engaged in the same business otherwise than I Dy proportaoEing tbe tax upon any business | to the amount of business done; and to li- fe.-ense, regulate, restrain, suppress, or prohibit iany or all laundries, Hvery and sale stables, flattie and horse corrals, slaughter houses, leuteher shops, hawkers, peddlers, pawnbrok- '- dts. dance cellars,. nKtodeons, shows, cir- leusee. public billiard tables, bowfing and teu- jain alleys, and tt> suppress and prohibit all K'aro banks, games of chance, gambling Tfiiouses. tables, or stands, bawdy nouses, the Isseeping of bees wtttein the city limits, and j wry and all obnoxious. offensive, immoral. Itndecect. or disreputable places of business tor pracHice." g! It may be that the police power conferred F upon municipal cities by Section 11, Article f*U.. of the Constitution of the State of Cali- f 'oraia. is also invoked. Said section is as fot- ! »ows: i "Any county, city, town, or township may j >nake and enforce witbin its limits all such i: ccad, police, sanitary and other regulations lie are not in conflict with general laws." '. We contend that the ordinance is void, and j >basl argue its invalidity from two distinct s:po»nts of view, based upon, the particular t power invoked to sustain such legislation. 3 i First: As a business or occupation license ir iyr Qax—an en ac tuieiit emanating from the . ik-barter power to license. ff Second: As a notice regulation—an enact- : jnent emanating from the police power con- ferred upon nrucicipaMties by tbe Constitu- ?ij- And arguing from tbese two points of view. |;Vjre have come to tbe cor elusion that the or- ?'finance is void, for the fdlowing. reasons: i'■•.', 1. As R arbitrarily efscriminatts between '•{ Sersons engaged in the same general business i ot advertising, between bill pesters and sign j Advertisers, as deflred in the ordinance, and \ Stber forms of conducting tbe same business ,.' af advertising. i 2. As it unlawfully discriminates between i, persons engaged in the business of bill post- ' ing and sign advertising, as defined in the ordinance, the bill poster and sign adver- tiser, on the one hand, who uses in his busi- ness signs of a greater height than six feet, and. on the other hand, the bill poster and sign advertiser who limits his signs to six feet in height, or less. 3. As it attempts to tax a single act or acts done in pursuance of the businees of bill post- ing and sign advertising, and not the business itself. 4. As it is uncertain and 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 and not general. As an occupation license the ordinance is not void, as it violates tbe proviso contained in said sub-section 13 of Sec. 2, Article I. of the Charter of the CSty of Los Angeles, which provides that "no discrimination shall be made between persons engaged in the same businees, otherwise than by proportioning the tax upon any business, to the amount of the business done." The business of bill posting and sign ad- vertising is but a form of ftbe general busi- ness of advertising, and can not, by itself, be considered as constttuing a business or occupation which, for purposes of taxation under the said section of the Charter can be subjected to a tax, while other forms of the same general business of advertising are ex- empt therefrom. In other words, the ordi- nance is'not bread enough to cover all persons in the same business, and consequently there exists a discrimination between those persons included in, and' those persons excluded from its operation, all of them being engaged in the same business. There is but one business, the business of advertising, and to exempt from taxation ceitein forms which the busi- ness of advertising assumes, and to subject to taxation certain other forms of the same business is "a discrimination between persons engaged m the same business," violative of s&id proviso. -We contend that the classifying of advertis- ing conducted in the form of bill posting and sign advertising, particularly as these terms are defined in the ordinance, into a business separate and distinct from advertising busi- ness, conducted in weil-known and similar forms—such as theatre curtains, entertain- ment and theatre programmes, newspapers, stereopticon displays upon the walls of build- ings, the display of lithographs in vacant windows, the house-to-house distribution cf adveitasiog matter (if not included in the or- dinance), and above all, the posting, paint- ing or tacking of advertisements upon struc- tures that are not bill boards, or advertising sign boards, or other similar structures, such as the walls of houses, buildings, fences and other structures "not intended for advertis- ing purposes," is a purely arbitrary dassifi- oafcrco, and' not founded upon any reason. it surely requires no argument to demon- • strate that a person engaged in outdoor ad- vertising, who displays a poster on the wall cf a buHding, or in a vacant store window, or who tacks an advertisement on a fence or wall, net intended for advertising purposes, is as much engaged in the saone advertising bus<in£se as is the man who" displays the same advertisement on- a bill board. Yet the per- son' engaged in the bill board business has to pay J75 per quarter, or go to jail, and the outdoor advertiser who displays the adver- tisements of his customers upon structures net intended to be used for advertising pur- poses does not have to pay a cent. Of course this amounts to unlawful discrim- ication in ttoa same business. The same line Of argument is even more plainly applicable to the discrimination which is created by the ordinance between bill post- ers and* sign advertisers as defined therein. In addition to the licens fee of $75 per quar- ter, a ;further license fee of $150 per quarter is imposed by section 5 of tbe ordinance, des- ignated "special bill posters* license." upon bnl hoards more than six feet in height, and roaic-y onerous conditions precedent are im- posed, which must be complied with before this special license can be issued. It is obvious that the height of a biH board, taken by itself, is not even suggestive of the amount of business done by tbe owner thereof—and. as the only discrimination that is permitted between persons engaged in the same business, is by "proportioning the tax upon any business as to tbe amount of busi- ness Oooe." for this reason, if for none other, the ordinance, or at least all part of it in reference to this special bill posters' Hcer*". and tiie conditions as to its issuance, is void. The case of ex parte Frank, 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, which exacts a li- cense for selling goode, and fixes one rate of license for selling goods which are within tbe corporate limits, or in transitu to the city, and another, and much larger license for selling goeds which are not in the city, or in transitu to it."Is invalid, as unjust, un- equal, partial, oppressive, and in restraint of trade." -• Of this ordinance the Court says: "It dis- criminates between merchants in the fame place, dealing in the same kinds of merchan- dise, for no better reason than that one deals in goods either actually in the corporate lim- its, or In transitu under a bill of lading, while the other deals in goods outside the corporate limits, and not in transitu under a bill of lading. If this kind of discrimination be le- gitimate and valid, there is no reason why a niiTohaut having goods in a warehouse on a particular street might not be required to pay a license fee of ten thousand dollars, while another merchant doing the same kind of business, in the same city, and with his goods stored in another street, would be requirtd to pay only ten dollars.* * * In the case of Mayor, etc., vs. Aithrop. 5 Colo., 554, the Su- preme Court of Tennessee, in an able and learned opinion, discusses the validity of an otdinance very similar to that now under re- view, and hold it to be void on the grounds to which we have adverted." The hypothetical case suggested by the Court is prophetic of the advice in the ordi- nance in the case at bar. By way of illustration it will be proper io refer to the auctioneer license case decided by Justice Owens, Police Judge of the City of Loe Angeles, just three years ago, as any hypothetical case, and it is squarely in point with the case at bar. This case is entitled The People, etc.. vs. F. T. Keetar, No. 20,660, and in sustaining the demurrer interposed to Che complaint, on the ground that the complaint did not charge a public offense. Judge Owens on March 3, 1S97, filed a written opinion, holding that the ordinance for the violation of which the de- fendant was arrested, was void. By said ordinance, auctioneers, 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 himself or any other person, $15 per day, payable semi-annually, in advance." "For any auctioneer or any person who sells real estate, or any goods, wares or mer- chandise, other than jewelry, watches and prated ware, at public auotion, on commission or otherwise, either for himself or any other person, $5 per month, payable semi-annually, in advance." Judge Owens, after setting forth the said subdivision 13 of section 2. Article I., of the Charter of Los Angeles City, says: "It will be observed that said subdivision 13 provides for three things: Is*. To license and regulate the carrying en of any and all professions, etc., to fix the amount of license taxes, etc., provided that no discrimination shall be made between per- sons engaged in the. same business, other- wise than proportioning tbe tax upon any business to the amount of bUEiness done. 2nd. To license, regulate, restrain, suppress, or prohibit 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 classification, and that the City Coun- cil can only provide for licensing and regu- lating said calling or occupation, and can not restrain, suppress or prohibit the same, by ordinance or otherwise." The Court then applies the reasoning in ex parte Frank, 52, Oal.. 606, to the auctioneer license, and concludes that the ordinance cre- ates an unlawful discrimination between per- sons engaged in the same business—auction- eers, and was void. It is quite plain that the ordinance in the case at bar is unlawfully discrimJnaUng— , contrary alike to tbe proviso in tbe charter, and the Constitution of the State. If the occupation of posting an advertisement on a structure intended for advertising purposes, is to be considered a different occupation, for the purposes of taxation, from that of. posting the same advertisement on a structure not intended for advertising purposes; and, again, if posting a bill 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 potting the same bill upon a bill board less than six feet in height, where is this system of arbitrary classification to end? Personal spite will thus be enabled to single out tbe objects of its malicious attack, and no occupations, nor the investments made to carry them on, will be worth anything, when at a moment's notice they may be subjected to a license tax, which, if not prohibitory, will make competition with their more fav- ored rivals an impossibility. In the foregoing argument it has been point- ed out that the ordinance loses sight 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 business licensed. So m Sec. 6 of the ordi- nance tbis idea is logically carried out and it is made "unlawful to keep, use or maintain any bill board, sign, advertisement or other timilar structure more than six feet in height in tbe City of Los Angeles, measured as here- in specified, along the line of, or within twen- ty feet of the line of any public street, lane, aJley or other public place in said City, or elsewhere in said city," and by section 2 of the ordinance the definition of bill posting and sign advertising is made to include the act as well as tbe business of posting or paint- ing, etc., and the exceptions made in said section 2 of said ordinance to the operation thereof (hereinafter referred to> clearly shows this to be the spirit as well as the letter of the ordinance. Thus a single act in the con- duct of a businees 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 sustained as the reg- ulation of a "business." In the case of Merced County vs. Helm. 102 Cal., 159, an ordinance was passed by. said County, fixing tbe rate of County license taxes, upon certain occupations within the County, under the power given by the 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 imposed a license upon "all persons • * * * who ■ Bell * • spirituous liquors." The Court said: "The right to demand a license tax as a condition of engaging in any business within the county, must be express- ly conferred upon the county, and the right to lnrpose a tax upon a. 'business/ will not au- thorize imposing a tax upon Individual acts connected with such business, nor can a li- cense tax required for one businees be de- manded for any act or business, not specified in tbe ordinance providing for such' taxes." • * • "The tax fixed by this section is a charge imposed upon tbe sale, and not for carrying on cr engaging in the business of selling. It applies to each sale before it is made, and for a single sale makes the person liable for the full amount of the tax. It is not imposed upon the 'business' of selling, or limited to those engaged in such 'busi- . "A single act does not constitute a busi- ness, and when a sale is but an incident in, or tbe final act of, another business. It can not be said to be the 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' of sell- ing this whie or beer, and an ordinance re- quiring a license tax upon the business of keeping an eating saloon would not justify an additional license, tax for the bsulness of selling beer in connection with the meals pro- cured at such saloon." "The ordinance in question is not limited to sales as a beverage, or in a dramshop, or by keepers of tippling saloons, but applies to every person who sells the article within the limits of Merced County. Neither is there any limit prescribed as to the quantity which may be sold, or the purpose for which, or the person to whom, a sale may be made. Its terms are sufficiently comprehensive to em- brace any and all sales within the county, whether the articles are sold to be carried out of the county, or for purposes other than human consumption; whether the sale Is that of the innkeeper to his guest, or the wine- grower at the close of the season, or the brewer at his brewery. A sale'by a wine- grower of tbe product of bis vineyard, or by a distiller of the spirits produced at his dis- tillery, does not constitute a business of sell- ing wine or spirits, any more tban a sale by tbe miller of cbe flour ground at his mill, or by the manufacturer of the cloth woven at bis factory, constitutes the business of sell- ing flour or doth; and the power to impose a license upon a business does not authorize a tax, either 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 County Government Act it would be competent for the county to impose a license tax upon tbe business of manu- facturing cloth, or of raising sheep, but it would not be competent for it. under this authority, to require tbe payment of a license tax from every person who should sell a piece of olotb which be had manufactured, or the woo! from the sheep which be had raised. The businees of distilling spirits, or brewing beer, or manufacturing wool into cloth, or grain into flour, or grapes or currants into wine, or apples into cider, is a lawful occu- pation, and while tbe business, as such, under the authority given to the County, may be made subject to a license tax, tbe County can- not, under tbis authority, impose a tax upon the individual sales of the product of such businees, or upon all of the sales made witb- in each quarter of the year, or within any other limited period of time, for the reason tbat such tax is not upon tbe business, but upon the different acts in tbe transaction of the business. With the same propriety might a tax be imposed upon the pruning of the vines, the picking of the grapes, tbe gath- . erlcg of the apples, tbe pressing into the vats, the barreling of tbe juice or its sale before fermentation into wine." So in tbe case at bar—the ordinance makes the act of bill posting and sign advertising the subject of an occupation or business li- cense. It covers every real estate sign in- the City of Los Angeles, whether the party main- taining it is engaged in the sign advertising business or not. This is the letter of the or- dinance: it is alto its spirit, as is apparent from the proviso In section 2 thereof, as fol- lows: "provided, however, tbat no definition herein contained shall apply to tbe advertising by religious organizations of meetings called for divine worship, nor to tbe. distribution by hand in said city of advertisements from house to house or from store to store, by any perron, or bis agent, advertising tbe business in which such person is directly engaged in sand City.- Of course it tbese exemptions mean any- thing, they are unconstitutional; they do. however, serve the purpose of showing that it was the Intent of tbe framers of the ordi- nance to license and tax tbe act of bill post- ing and sign advertising and tbe act of house- to-house distribution of advertisements, whether or not the posting or distribution is done in and as an act In the business of bill posting and advertisement distribution, or as en adjunct to some other business. It Is tbe act and not tbe business of bill posting and sign advertising which the ordinance attempts to license and regulate. While the intent Is thus plainly demon- strated, we are not sure, that as to house-to- house distribution of advertisements (there being no mention of this form or advertising in the definition of bill posting and sign ad- vertising), this ordinance covers It, and It so, has the old provision Imposing an occupation tax upon It, by itself, been revoked, by the clause in this ordinance revoking all ordi- nances and parts of ordinances In conflict therewith? The uncertainty as to this mat- ter, and the uncertainty and tndeflniteness which pervades the entire ordinance, should, of themselves. Invalidate It. It la elemental tbat an ordinance should be so drawn that a citizen desiring to follow a particular oc- cupation Is apprised as to whether or not it is included witbin its provisions, particularly where the following of an occupation without obtaining a license therefor Is made a crime. Of course the proviso, excepting religious organizations, and bouse-to-house distribu- tion by total firms or their agents, advertis- ing the business in which such local Anns are directly engaged in Wie City of Los An- geles, Is void, violative of both federal nnd State Constitution, and In restraint of trade, and against the policy of the State. Ex parte Frank, supra. Lassen County vs^ Vone. X. Cal.. 387. In the case last above cited It was held iimL 'an ordinance of a board of supervisors 1, vying a license tax upon all sheep which are pastured in tbe county, but exempting from lite payment thereof, those persons who list rli.-ir sheep as taxable property in the county, mid pay taxes upon them as such. Is in viola- tion of section 21 of Article I. of the Consti- tution, piohibitlng tbe granting of prUilegcs and immunities to any class of citizens which arc not granted to all citizens." In Graffty vs. City of Rusbvllle, 107 Ind., r,02. 57 Am. Repts., 128, a city ordinance, re- quiring non-resident hawkers or peddlers of merchandise not grown or manufactured in the county in which said city Is situated to pay a license fee, was held unconstitutional. 'Simrall vs. City of Covington, 90 Kentucky, 414, s. c. 29, Am. Kepts., 398, is to the same iffect, and ex |»rte Frank is cited with ap- proval therein. Hut as we think it will hardly be contended that this provision is constitutional, we shall not, at tbis time, devote further attention io it. The amount of the license or licenses is prohibit!vie. $75.00 per month is by itself almost prohibitive, at least so much so, that a monopoly inevitably results—but $150 added to tbis, makes the license a prohibitive one— $900 per annum. Of the prohibitive auctioneer license, refer- red to above. Judge Owen said: "There is another objec' in to that portion of said ordinance involved in this proceed- ing. As before stated, tbe city has power only to license and regulate tbe occupation of auctioneer; It has not power to restrain, suppress or prohibit the same." "As the selling of jewelry, watches and plated ware at retail, wholesale, private sale ur auction, is not malum in se, it could not be seriously contended that the city could In so many words, absolutely prohibit the sale of the same by an auctioneer. If it can not be done directly, can it be done indirect- ly? Oan tbe city, under the guise of a rev- enue license, fix a rate so exorbttatntly high, tbat any one desiring to engage in the busi- ness can not, as a business proposition, af- ford to pay tbe amount fixed? Tbis Court thinks tbat can not be done legally. "It is apparent upon the face of this ordi- nance that the rate of $2,700 for a six months' license to sell jewelry, watches and plated ware at auction, was intended to be, and in fact is. In restraint of said business and pro- hibitive thereof. Consequently, said part of said ordinance is inoperative and void." Unless bill posting and sign advertising is. as a businees, malum in se. a nuisance, it can not be prohibited directly, or indirectly by prohibitive taxation. "Bit! posting Is a lawful business." So says the Supreme Court of the State or California in the case of Merchants' Ad-Sign Company vs. Sterling. 121 Cal.. 429, at p. 434. 'And, in the recent case of ex parte Mc- Kenna. 58 Pac., 916. Chief Justice Beatty of the Supreme Court of this State, in directing tbe discbarge of the petitioner McKenna, brought before the Supreme Court upon ha- beas corpus proceedings, tor the violation ot an ordinance of the Oity of Fresne, imposing a license tax of $200 per quarter upon all per- sons carrying on a trading stamp business, says: "In support of the ordinance it is contended that the trading-stamp device is a lottery in disguise, and therefore immoral. But we can not see that it has any resemblance to a lot- tery- There is in it no. element of chance, and nothing in tbe nature of gaming. It ap- pears to be simply a device to attract custom- ers, or to induce those who have bought once to buy again, and in this aspect is as inno- cent as any form of advertising. And, be- sides, if it were a lottery in disguise—a mere device to cloak a gambling scheme—it would be unlawful, and not tbe subject of a license. The ordinance can not, therefore, be upheld on this ground. It is not an ordinance to prohibit an Immoral practice or to regulate a hazardous or offensive business, or the con- duct of a lawful game or public exhibition. It is. under the guise of a revenue measure, an evident attempt to put an end to the issue and redemption of trading stamps by levy- ing a discriminating and prohibitory tax upon those dealers who resort to those methods of attracting customers." Apparently the Chief Justice is disposed to regard advertising as innocent, and one thing is clear, under the reasoning of the Chief Justice, which is, that If there Is anything about bill posting and sign advertising, which makes it immoral or unlawful, then It can not be licensed. It but remains to consider the ordinance as an exercise' of the police power vested in the ; t ?L of „ LoB Ahgeles by Section 11, Article II. °'JJ» Constitution of the State of California. This Is not the first time the police power "f tbe city bas been invoked by ordinance to regulate the construction, erection and maintenance of bill boards. Indeed, the li- censing reature In the ordinance In the case uLi^T ^ rt >« been disposed of, It Is aeton- L-J2L to J! nd ,nat the regulations In the ?SlT? t i"™"" 1 !"* are so nearly like those consasned In the former ordinance which was r^,« "J unconstitutional by the Superior h^? °f Iais Angele* County. June 17th k 1898. „^. r * U ! e . <>M J m,lnl,4,ce ll ™». 'n brief, made ihlTn^ 1 to buH *" . erect or maintain, along nr\5S?vf , '5 uo " rd ' «*f«-ti8ing sign board LJ? , b 2 artl or structure Intended to be 3? for _23!f rtl " 4n « c or ««*«> Purposes, any ^^.Lt*?'* -«feee*d ten feet In height l^£i?J. ron V ,,e "urface of the ground to nLh S"^ P" 1 "* ln eald structure. Inas- '"™ a » tne »"**•* ordinance has all the thJSlJf^.IS 0 "'-.} 00 - whl< * «wsed the Court. rZJ? JudBe V *? Dyke ' to dpc '»'* «ie old £viS^ unconstitutional, we deem It un- "lia^217 ,0 J Se * '*!"* In ,ul > th « argument ,\ ™X1? ma 5 e W. ,,mt the ordinance on that rde?.v.^? ! K , *?" J f p % ,ld hCTrto "" °P">- lii wSi fc re0 .5 jr Jl i d « e V "° D y ke "» the 6a*e <">iu?»»m **'<>.ordinance was declared un- Ti». M. lona ?"T*L c " Be of cx POfto Wllshlre. whleh „ fi-S'l"^ •*■* lh « nubllc necessity niiri -"TV"*? wHsteucc the old ordi- "itto! " ' '!L N 1 " '"""un** "f Judge Van .i'li.c-V..!? "H*"* «*" citizens against the "••■>g< rs of said structures, on account of their f£™ J£ y i t0 H 1 ° r .. be bl0,ra ov * r - and also li^k?.* 2iv!r OT " b , usiJble Mture ." aid, in show- ing that this alleged purpose was not effected X £°1l " rainance . or I' effected, was accom- plished in an oppressive, unreasonable, and discriminating manner, he says: "But it will be seen that the ordinance has no regard to the material or the struc- ture, or its strength, nor does it prohibit the election of a structure over ten teet in height or .! rt ? hlB : thirty feet of the line of the side- walk if it be net intended to be used or used for advertising 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 ad- vertisement upon it. If the structure were of iron instead cf 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 be in violation of the terms or the ordinance. 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 such a bill board, wirii an advertisement on it, in the outskirts and unsettled portions of the city, for in- stance, could affect the public morals and heallQi of the city, or endanger life or prop- erty." So in the ordinance in the case at bar sec- tion 3 thereof is limited to the erection o'f bill boards, advertising sign boards, 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 the material out of which they may be constructed; nor 1 whether they are erected in tb? heart of the city, or in the outskirtst Indeed, under sec- tion 6, the Council of the City of Los An- geles has, by inserting the words "or else- where." directed that all bill boards, no mat- ter where situated in the City of Los Ange- les, regardless of their proximity to public places, be reduced in height to six feet. And so a bill board or real estate sign, seven feet in height, in the midst of an undivided 20-acre tract of land in Garvanza, must, if this or- dinance be held valid, be reduced to six feet in height. There are yet other unconstitutional feat- ures of the ordinance involved in the case at bar. wbich either were not existent in the eld ordinance, or were not pointed out by Judge Van Dyke in his said opinion. The measurement as to the height of the bill board is based by measurement from the ground whereon it stands. It is notice- able that in the most prominent locations in the city, where the traffic is greatest, the few available locale its for bill bcaids are upon lots that have already been excavated for building purposes, or which are far .below tbe level of the graded street. It is of course an oppressive and useless requirt-meiit that :n such a case as that the board should be re- stricted to six feet in height above the sur- face of the ground. The basis of measure- ment should be from tbe level or the street. The distance at which tbe board is. directed to be set back from the street line should be made proportionate to the height of the board. It is a needless, and therefore unlawful re- striction upon the rights of the individual to require a board seven feet in height to be sot back twenty feet from the street line- ten feet would amply protect tbe public frcm tbe danger cf tbe board falling: while, on the other band, if there is anything in the con- tention that bill boards are liable to fall a twenty-foot regulation will not protect the passers-by on a street, when a thirty-foot bill board gives way. Again, bill boards are forbidden of a cer- tain height "along the line, or within twentv reet 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 that run in a direction parallel with the street line. There is no sound rea- son, so far as tbis terror of a falling bill beard is concerned, why a bill board which runs at right angles to tbe street line should be restricted in height, on the same basis as a bill board running "along the line"" of or parallel with the line of the street—tor the former is bound to fall on the lot. no mat- ter which way it falls, while the latter may rail on the street. Since Judge Van Dyke wrote the opinion re- ferred to. the Supreme Couit of this State decided tbe case of the County of Los Angeles ¥ vs. Hollywood Cemetery Association, 124 Cal.. 311, and as it has some bearing on questions already discussed by us and on the question as to the validity in the present ordinance of the pro\isicn conferring upon the Council an arbitrary power to withhold or grant a "spe- cial bill pesters' license," we shull quote from it: "The complaint shows that the Supervisors of Lcs Angeles County duly passed an ordi- nance, the first section of which reads: "It shall be unlawful to locate or establish, ex- tend or enlarge, any cemetery, graveyard, burying ground or crematory within the lim- its of the County of Lcs Angeles, without permission of the board of superv Uors first had and obtained. » * - "From the opinion of tbe learned judge who sat in the case (printed in the record) it is manifest that he regarded the establishment of a cv>meteiy for t'he interm-ent of human bodies "as an avocation which may well be presumed to have an injurious tendency." It is not so stated, but the opinion proceeds, I think, upon the assumption that a cemetery is a nuisance per Ee, or at least may be so regarded in measuring the extent of the police power to regulate it. We can not concur in the position that the business of conducting a cemetery is an a\ocation presumably hav- ing an injurious tendency. We think, how- ever, and in this we quite agree with the learned counsel for respondent, that there are many considerations too' obvious to require enumeration, wbich bring cemeteries within the power of reasonable regulation by both city and county municipalities. (The Court then quotes Article XI., Sec- tion 11, of the 'Conytitution 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 sufflcien'tly bread and comprehen- sive to sustain tbe enactment of any ordi- nance h'aving a reasonable tendency to pro- mote the health, comfort, safety and welfare of aH the inhabitants of tbe municipality, and which would not be in conflict with some gen- eral law." "Is the ordinance before us a reasonable exercise of tbe power conferred by the con- -stitution and statute upon boards of super- visors, and as applicable to counties? It can not be assumed that the supervisors in the present easy legislated with tire view to reach the defendant's enterprise specially, or that they knew it was in contemplation when the ordinance was enacted. On the contrary, it must be presumed that their purpose was to promote the welfare of tbe inhabitants. The validity cf the ordinance makes it unlawful to establish, extend or eudarge any cemetery within the limits of tbe county without the permission cf the supervisors. It does : not attempt to deal with or prohibit private inter- ments nor with interments in cemeteries al- ready established. It declares that no part of Lcs Angeles, bewever remote from any city or town, even though the location be suita- ble for the purpose, no cemetery whalI be established, except by the permission of the board of sup?rvisors, first obtained. * * Wc can see no move reason why the right to es- tablish cemeteries in a county should be sub- ject to the will of the supervisors tirau that the light to engage in any other lawful en- terprise should be eo circumscribed. There is a wide difference between regulation and prohibition—between regulatory provisions as the conditions imposed for the exercise of a lawful occupation, and making thy right it- self to depend upon the unrestrained will of the municipality. It would hardly be contended that an ordinance declaring it to be unlawful to engage in the business of farm- ing or merchandising in the county without tbe permission of the supervisors would be a reasonable 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 condition to the enjoyment of the privilege of engaging in lawful occupations: they may regulate the manner of conducting the busi- ness if it be of a character tending to be in- jurious; but, if the business be lawful, and having no injurious tendency, they can not say who shall, and who shall not exercise the right itself. Under the guise of regulating a business, the municipality can not make prohibition possible by committing to the of- ficers of the municipality the arbitrary power to engage in that businees. We do not think it was ever irotend'ed by the people in ordain- ing the section of the constitution referred to. or of the legislature in the statutory en- actment, to include in the power to make and en-fcrce regulations, a power purely personal and arbitrary. "For, as was said bv Mat- Off} 3| ONE OF CRAWFORD'S STAR BOARDS,- SULLIVAN, IND. I thews. J., in Ylck Wo vs. Hopkins. 118 U. S., 35S, "tbe very idea that one man may be com-Ul*' pelled to bold his life, or the means of liv-'lfi ing, or any material life essential to the en4ll joyment of life, at the mere will of another,* li seems to be intolerable in any country, whererf!' freedom prevails, as being the essence ot'Jn slavery." M The Court then cites the cases of Austin?' , vs. Murray. 16 Pick., 121. and.State vs. Notr,i| 61 Md., 297, 48 Am. Rep.. 105, where ordi-P, nances forbidding a lawful occupation to be»(t carried on in the city limits, on account orf'-. its injurious character were held void, be '" cause an absolute prohibition of a lawful oc cupation, which might, on the remote out skirts of the city, be carried on without in-PJ jury to any one. if We think, from the ease last above cited,* - it is plain that the provision of the ordinance^ which requires the obtaining of permission (;! of tbe Council before erecting a bill boarduT. over six feet in height, is plainly void. i. l The case of Cicero Lumber Company vs.r|- Cicero, 176 111., 9. 42 L. R. A., 697, is instruc-'4;; tive, on this point, and on the further polnt.h.fi' which may call for consideration in tbe case t at bar. as to when a void provision in an or-? | dinance renders the whole ordinance void: u. "But the other ground, upon which the or-iM dinance of May 23, 1896. is attacked as in-«j valid, is of a more serious character. By tbeil, ordinance of May 23. 1896. all persons are)j'i] icr-bidden to take any omnibus or heavy ve-ilH hide or any traffic vehicle, upon any of the r jJf boulevards therein named, except private! JN wagons conveying families, "or upon special,rJ permission of the board." The meaning ofill'l this provision is that ail traffic vehicles, ex-i'Ji 1 J cent private wagons conveying families, are •!* only forbidden the use-of the boulevards, m?i : case their owners do not obtain the special? £'' permission of the board of trustees. In otherl £ words, the discretion is lodged with the boardf - : of trustees to permit or not to permit traffic; , ve'bieles to be used upon the boulevards in, question. The ordinance, insofar as it in-jfc vests the board or trustees with the discre-£ i, tion here indicated, is unreasonable. It pro-) ft Kbits that which is in itself, and as a gen-*, - eial thing, perfectly lawful, and Isaves the? I: power of permiting or foihidding the use ofl i traffic teams upon the boulevards to an un- - - regulated official discretion, when the whole* J rua«er shculd be regulated by permanent lo-i S cal provisions operating generally and im-J ' partially. The ordinance is not general ini 3 ttsJ operation. It'does not affect all citizens^ =' alike who use traffic vehicles. It is oniyi " persons driving traffic vehicles upon the bou-' levards without the permission or the board,!'' of trustees who are subjeoted to the penalties J : of the ordinance. The ordinance in no way - f regulates or controls ' the discretion vested i thereby in the board. * * * (Cases cited.l* ' it is insisted by appellees that the ordi-* nance of May 23. 1896, is not void, in the re'-L <~ spect here indicated, as to the whole or thet 'i ordinance, but only void, as to the part or it? ! which makes the use ot traffic teams upon an! S avenue or boulevard dependent upon the spe-! * cial permission of the board of trustees. In! i support of Uris contention the well-known j * rule is invoked shat. where certain provisions 1 ' of an' ordinance are void, the Court will not' declare those provisions void relating to the? subject matter of the ordinance which are} distinct and separate from tbe void provisions C If an ordinance, or even the same section off an ordinance, contains two separate provis-» ions, relating to different acts, with distinct i penalties for each, one of wbich is valid and i the other void, the ordinance may be en-f torced a s to that part of it which is valid.*- When an ordinance consists of several distinct, s and Independent parts, although one or morel of them may be void, the rest are equally' valid, as if the void clauses had been omitted. 9 But where an ordinance is entire, and each part has a general influence over the rest, and one part of It is voidX the entire ordl-s. nance is void. The void part of the ordinance! makes the whole ordinance void if the voHi and valid parts are so connected as to be es- ? sential to eacfc other. 1 Dill. Mun. Cor k 4th t fu" i e £J 41 - J Te are ««*•>"<* 1» think tbati the objectionable clause is here so intimately f connected with the other portions of the ordi-* nance as to permeate the whole and make? the whole void. The ordinance does not posi- tively and absolutely exclude all traffic teams ? but it only excludes such traffic teams as the! board of trustees may not specifically permit' to pass over the avenue." * i. In the case at bar. we think tbe entire or-i dinance must fall, and upon this point we'. 1 * shall Tefer to an opinion delivered by Judge* Trask, of the Superior Court of Los Angeles t - County, appended to this brief—In the ease off- ex parte B. F. Knox, No. S02. f. v The only point remaining for consideration F f is 1 the Council's limitation upon itself not to K *'■ i'°, ns ! < ? er att application for leave to erect a.% bill board, over six feet in height, without it* appearing that notice has been given to the adjoining property owners or such application.} Ana this is ail that amounts to, for it will be r observed that the granting or refusing of the I permission rests- with the Coucicii, and even.f if ail the adjoining property owners were? present at the hearing of the application and ? consenting, it would be within the power or* the Council to reject the application. If toes' danger sought to be prevented by tbese many j regulations is the danger of a bill board fall- ing on the street, how can the adjoining prop- erty owner consent to tbe operation of that danger? This is a matter of public concern, in which the adjoining property owner has no more interest than' any citizen using the pub- lic streets, and in this respect, the idea of lequiring the consent of the adjoining proper- ty owners is even less untenable, than in the ever-recurring example of the Chinese laun- dry, which time and time again the Courts Siave held can not be subjected to such a pro- vision. The most recent attempt to make the es- tablishment of a laundry dependent upon the will ot the adjoining property owners, met with the usual dereat. And on tbis bead, we will merely append to this brief the opin- ion of Judge Trask of tbe Superior Court or Los Angeles County, filed in the case or ex parte Wong Giiig; It may be well, in dosing, to call the Courf s attention' to a passage in the case ot ^ick Wo vs. Hopkins, 118 U. S., 336, from il - fit -\