194 So. 538 | Ala. | 1940
The appeal is by the city to restrain the erection of signs along public streets. The case was submitted upon agreed statement of facts, which is specific and concise. No recital of the same is necessary.
The pleadings are well stated by appellant, in substance, as follows: The City of Birmingham filed a bill against Harry C. Holt seeking a mandatory injunction requiring said Holt to remove certain signs placed by said Holt upon the sidewalks of the City of Birmingham. It is alleged that signs were maintained on posts located in the sidewalks of the streets of the city at various intersections; that the signs obstructed and interfered with the use of the public streets, and constituted a public nuisance. It is further alleged that the contract entered into by and between the City of Birmingham and said Holt on the 6th day of April, 1937, authorizing the erection of said signs, was unauthorized, null and void: that prior to the institution of suit appellant offered to rescind and annul said contract, but its offer was refused and declined by the appellee. In addition to the prayer for a mandatory injunction, appellant prayed for a declaratory judgment regarding the rights and status of the parties under the contract and the law that obtains.
The bill was amended by striking therefrom paragraph five and demurrer was refiled *250 to the amended bill, which was overruled.
Appellee filed an answer admitting that the metal board signs had been placed on the sidewalks of the city pursuant to the contract, that triangular pasteboard signs, containing advertising matter, had been attached to the metal board signs; and denied that the attaching of said triangular signs was done without the consent, permission or approval of appellant, but did not allege that the original contract authorized such triangular signs.
The answer further denied that the erection of the metal board signs on the sidewalks of the city at various intersections obstructed and interfered with the use of the public streets, denied that the maintenance of such signs constituted a public nuisance, and further denied that the appellant had no authority to make and enter into said contract.
The circuit court rendered a decree in which it held that the contract did not authorize the appellee to attach triangular signs to the bottom of the metal signs, provided for in the contract. The court enjoined the appellee from erecting in the future triangular signs, and ordered appellant to remove all triangular signs within thirty days from the date of the decree. The court taxed the costs against the appellee.
The appellant, City of Birmingham, appealed from the final decree rendered on October 31, 1939, as amended December 8, 1939.
This case was submitted, as aforesaid, upon an agreed statement to the effect that on the 6th day of April, 1937, the City of Birmingham and Harry C. Holt, doing business as Holt Sign Company, entered into an agreement which was to extend for a period of three years. Under its terms the city, through its then duly constituted commission, granted to the company permission to erect and maintain at such street intersections as the city may approve safety warning signs. The signs were to serve the public as street guides where located. The upper portion of the signs carries safety warnings, which are to be changed at least six times during each year; and the lower part is used for advertising purposes that may be offered by the company to various subscribers. The agreement further provides that the company shall not be required to pay any license or permit fees for the erection or maintenance of such signs.
The agreed statement of facts recites that the contract in question was executed pursuant to a resolution adopted by the Commission of the City of Birmingham composed of J. M. Jones, Jr., Lewey Robinson and W. O. Downs; and that on November 1, 1937, Eugene Connor and J. W. Morgan succeeded the said Robinson and Downs as Commissioners of the city. The agreed statement of facts further recites that the City Commission as composed of Jones, Morgan and Connor, who have in their official capacity by resolution made and entered of record of said commission, cancelled and annulled the contract and demanded that the signs erected by the company be removed.
As indicated this case, as submitted on the pleadings and the agreed statement of facts, presents two principal questions to the court for decision. Did the commission, composed of Jones, Robinson and Downs, have authority to bind their successors to permit the signs in question to remain on the public sidewalks of the city? And, does the city commission, irrespective of the question of one group of officers binding their successors, have the authority to permit public sidewalks of the city to be used for advertising purposes?
Answering the inquiries as propounded, did the commission, composed of Jones, Robinson and Downs, have authority to bind their successors in office to permit the signs in question to remain on the public sidewalks of the city? In 44 Corpus Juris, 88, the general rule is stated to be as follows: "Under the general rule a council may not by contract bind its successors to forego or to exercise their legislative functions. And the same is true of any city board having legislative authority. Nor has a city officer with discretionary power in the transaction of business in his department and the requisite authority to make contract with reference thereto a power to bind his successor in matters properly within the discretion of the person holding the office. This rule has been applied to contracts for personal or professional services to the city, and to the grant of exclusive franchises or privileges by the city."
No Alabama case is cited to this text; and no question here involved, insofar as a municipality is concerned, is found. The greater weight of authority is to the effect that "one state legislature cannot by any agreement bind itself or its successor in *251
office not to exercise the police power of the state." A discussion of this rule, and the reason on which it is based, is contained in Section 603, Constitutional Law, Vol. 12 Corpus Juris, p. 991. This text, after stating the rule which precludes one state legislature from binding itself or its successor not to exercise the police power of the state, pronounces that the same rule applies with reference to municipalities. It is as follows: "The police power of a state is an inherent attribute of its sovereignty with which it is endowed for the protection and general welfare of its citizens, and of which the state may not divest itself by contracts or otherwise. One state legislature, therefore, cannot by any agreement bind itself or its successors not to exercise the police power of the state. (Birmingham Mineral R. Co. v. Parsons,
A leading case in which this principle was applied is that of Boston Beer Company v. Commonwealth of Massachusetts,
In view of the fact that this general rule applies to municipalities as it does to the state [Willett Willett v. Calhoun County,
The Code of the City of Birmingham of 1930 contains many regulations concerning streets and sidewalks. Many regulations concerning streets and sidewalks, which are contained in the present code, establish that the prohibition or regulation of signs upon public streets and sidewalks is a proper legislative function, and within the police powers of the Commission of the City of Birmingham. City Code, § 5785. If this be true, then the preceding city commission had no power to bind its successors to permit signs to be maintained on the sidewalks of the city. The agreement in question was invalid insofar as it attempted to bind the present city commission.
Does the city commission, irrespective of the question of one group of officers binding their successors, have authority to permit public sidewalks of the *252
city to be used for advertising purposes? It is held that a municipality has no inherent power to grant franchises or privileges to use its streets. 44 C.J., p. 973. It is also generally held that in the absence of a constitutional provision, charter or statutory provision so permitting a municipality has no power to authorize the use of its streets for a private purpose. 44 C.J., p. 983; Mobile v. Louisville
N. R. Co.,
In the case of City of Birmingham v. Hood-McPherson Realty Co.,
In the Hood-McPherson case, supra, the court also held: "We have indicated that the municipality holds the locus in quo, not only for the municipality and its citizens, but in trustfor the public at large, whose rights are not dependent upon acts of omission or commission of the city — that is, that nothing done or omitted to be done in the allowance of the unlawful obstructions on the street, which interfere with the use within the dedication of that highway, will estop the public or those with a special interest from having the same removed as a nuisance."
Many authorities from other jurisdictions are to the like effect. For example, in the case of State ex rel. Belt v. City of St. Louis,
"In a word, the city has attempted to farm out its sidewalks and streets to a private person for advertising. Belt is free to make his own charges for advertising. No power is reserved to the city, even if it were a purpose to which it could devote the streets, to regulate the charges for advertisements. The legislative authority of the city could not thus be delegated, nor could it abdicate its control over the public streets, held by it in trust for the public, and create a monopoly in favor of one advertiser. Matthews v. City of Alexandria,
"We are clear that the streets cannot be devoted to such a private purpose. With what sort of propriety or fairness can the city farm out to Belt and his assigns the right to erect a box on a sidewalk in front of a business house, and not only thus deprive the proprietor, who has been compelled to construct the sidewalk and pay for improving the street in front of his premises, of the free access, ingress, and egress from his store, but to advertise the goods of a rival in the same line of business? The question furnishes its own answer. The city has no such power."
In People v. Clean Street Company,
In Fifth Avenue Coach Co. v. City of New York,
In Guimond et al. v. President and Trustees of Monticello, Sup.Ct., 192 N.Y.S. 827, 829, the plaintiffs brought an action against the President and Trustees of the Village of Monticello to recover damages for the removal of signs which they had erected in front of their place of business between the sidewalk and the curb line of the street. The plaintiff, before constructing said signs had obtained the consent of the proper authorities of the Village of Monticello for the erection of said signs. The signs were erected at such height from the ground as not to interfere with the public use of the streets. After the signs had been erected the Board of Trustees of Monticello adopted an ordinance providing that all signs or brackets situated between the inside sidewalk line and the curb line on any street in Monticello constituted an obstruction to the sidewalks and streets. The ordinance further provided that any such signs should be removed, and provided further for a penalty upon those violating said ordinance. The court held that the President and the Board of Trustees were justified in removing said signs. The court said:
"In the case of Champlin v. Village of Penn Yan, 34 Hun. 33, the court, in speaking of an advertising banner strung across the street, says:
" 'The court referred to several Massachusetts cases, with approval, where hanging objects were supported by fastenings in the face of the buildings which were standing on the line of the street, which were held to be unlawful obstructions'.
"In Hume v. Mayor, etc., of City of New York,
" 'The obstruction of a public highway is an act which in law amounts to a public nuisance.' Wakeman v. Wilbur,
"While 'the Legislature, by virtue of its general control over public streets and highways, has the power to authorize structures *254 in the streets for the convenience of business that, without such authority, and under the principles of the common law, would be held to be encroachments and obstructions.' Hoey v. Gilroy, 129 N.Y. [132], at page 136, 29 N.E. [85], 86.
"There is no claim in this case that the Legislature has authorized the erection of these signs.
" 'The owner of land abutting upon a public street' has the right, 'when necessary, to encroach upon the primary right of the public to a limited extent and for a temporary purpose. * * * "Two facts, however, must exist to render the encroachment lawful: (1) The obstruction must be reasonably necessary for the transaction of business. (2) It must not unreasonably interfere with the rights of the public." ' Tinker v. New York, Ontario Western Ry. Co., 157 N.Y. [312], 319, 51 N.E. [1031] 1032.
"This and similar cases cited in the plaintiff's brief, where the question was held to be a question of fact as to whether it was reasonably necessary for the transaction of business, and that it must not unreasonably interfere with the rights of the public, all relate to obstructions for a temporary purpose, and therefore have no application to the case at bar."
The fact that a portion of the sign made the subject of the contract in question contained a safety warning as well as the private advertising matter did not prevent that obstruction from being an unlawful obstruction on the street or sidewalk that amounted to a subordination of the public right to a private use.
In McCraney, Doing Business as McCraney Oil Co., v. City of Leeds, Ala.Sup.,
That is to say, there are many decisions of this and other courts touching the granting of proper franchises and the denial of private permits which amount to a material obstruction of the public highway in the zone which the public are entitled to "move and use" in the due exercise of its permanent right of use and enjoyment of such public way.
What we have said is in accord with Section 220 of the Constitution (Skinner's Alabama Constitution Annotated, § 220, p. 776) and several decisions in construction of same. For illustration we advert to the following decisions: City of Birmingham v. Hood-McPherson Realty Co., supra; First Nat'l. Bank v. Tyson,
The decree of the circuit court was in error in not granting appellant the relief prayed for in the bill of complaint as amended. The cause is reversed and a decree here rendered granting the relief prayed for in the city's pleading.
Reversed and rendered.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
