164 N.Y. 510 | NY | 1900
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Whether this appeal should be sustained depends wholly upon the validity or invalidity of an ordinance of the plaintiff which forbids the erection, within its limits, of billboards more than six feet in height without the consent of the common council. By its charter the plaintiff was authorized "to license and regulate billposters and bill distributors and sign advertising, and to prescribe the terms and conditions upon which any such license shall be granted, and to prohibit all unlicensed persons from acting in such capacity." (Ch. 14, Laws 1880, § 40, subdiv. 21; as amended, Laws 1894, ch. 28, § 9.) We think this statute conferred upon the common council of the city authority to regulate boards erected for the purpose of bill posting, so far, at least, as such regulation was necessary to the safety or welfare of the inhabitants of the city, or persons passing along its streets. That is precisely what the ordinance in question was intended to accomplish. To regulate is to govern by, or subject to, certain rules or restrictions. It implies a power of restriction and restraint, not only as to the manner of conducting a specified business, but also as to the erection in or upon which the business is to be conducted. (Cronin v.People,
Nor do we think that the appellant's claim that this statute *514
was unauthorized can be sustained. It is obvious that its purpose was to allow the common council to provide for the welfare and safety of the community in the municipality to which it applied. If the defendant's authority to erect billboards was wholly unlimited as to height and dimensions, they might readily become a constant and continuing danger to the lives and persons of those who should pass along the street in proximity to them. That the legislature had power to pass a statute authorizing the city to adopt an ordinance which, if enforced, would obviate that danger, we have no doubt. Nor was it in conflict with any provision of the State or Federal Constitution. The fact that no injury has occurred by reason of the erection of the billboard in question, or that it is improbable that any such injury will occur therefrom, is not controlling upon the question under consideration. The validity of a statute is not to be determined by what has been done in any particular instance, but by what may be done under it. (Stuart v. Palmer,
We are of the opinion that this ordinance is reasonable; that the legislature authorized its adoption; that the statute in pursuance of which it was passed was valid, and, consequently, that the defendant's appeal cannot be sustained.
It follows that the judgment appealed from should be affirmed. The questions certified to this court are answered as follows: *515
1. The common council of the city of Rochester had authority, under its charter, to pass the ordinance under consideration.
2. The ordinance in question is not unreasonable or an undue restraint of a lawful trade or business, nor a restraint upon the lawful and beneficial use of private property.
O'BRIEN, BARTLETT, HAIGHT, VANN and LANDON, JJ., concur; PARKER, Ch. J., not sitting.
Judgment affirmed, with costs.