Cream City Bill Posting Co. v. City of Milwaukee, 158 Wis. 86

158 Wis. 86 | Wis. | 1914

The following opinion was filed May 1, 1914:

BabNes, J.

The state in the exercise of its police power has the right to reasonably regulate billboards. This is practically conceded, and there is no conflict in the authorities on the question. People ex rel. Kemp v. D’Oench, 111 N. Y. 359, 18 N. E. 862; Att’y Gen. v. Williams, 174 Mass. 476, 55 N. E. 77; Welch v. Swasey, 193 Mass. 364, 79 N. E. 745; S. C. 214 U. S. 91, 29 Sup. Ct. 567; Benz v. Kremer, 142 Wis. 1, 125 N. W. 99; Chicago v. Gunning System, 214 Ill. 628, 73 N. E. 1035; Crawford v. Topeka, 51 Kan. 756, 33 Pac. 476; Bryan v. Chester, 212 Pa. St. 259, 61 Atl. 894; People ex rel. Wineburgh A. Co. v. Murphy, 195 N. Y. 126, 88 N. E. 17; Comm. v. Boston A. Co. 188 Mass. 348, 74 N. E. 601.

The state bas delegated tbe power of snob regulation to the city of Milwaukee under tbe general welfare clause (sec. 3, cb. IV) of its charter. Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882; State ex rel. Elliott v. Kelly, 154 Wis. 482, 485, 143 N. W. 153; ch. 678, Laws of 1913; Whitmier & F. Co. v. Buffalo, 118 Fed. 773; In re Wilshire, 103 Fed. 620; Chicago v. Gunning System, 214 Ill. 628, 73 N. E. 1035; Gunning System v. Buffalo, 75 App. Div. 31, 77 N. Y. Supp. 987; St. Louis G. A. Co. v. St. Louis, 235 Mo. 99, 137 S. W. 929. Tbe provisions of this clause are quite fully stated in tbe Mehlos Case, supra, and in Chain B. Co. v. Milwaukee, 151 Wis. 188, 138 N. W. 621, and need not be repeated. .Whether tbe power was expressly conferred by cbs. 302 and 652, Laws of 1907, is not decided.

It is competent for tbe city council to place billboards in a class by themselves and to legislate in reference thereto. Kiley v. C., M. & St. P. R. Co. 142 Wis. 154, 125 N. W. 464; Borgnis v. Falk Co. 147 Wis. 327, 353, 133 N. W. 209; Maercker v. Milwaukee, 151 Wis. 324, 139 N. W. 199; State ex rel. Bisch v. Trustees, 121 Wis. 44, 98 N. W. 954; Bingham v. Milwaukee Co. 127 Wis. 344, 106 N. W. 1071; State v. Evans, 130 Wis. 381, 385, 110 N. W. 241.

Tbe ordinance in question contains a series of restrictions on tbe manner of using private property, and tbe question is, Are tbe regulations contained therein reasonable? If they are, they are valid, and, if not, they are void. Where tbe power to regulate exists, it is only in cases where it bas been clearly abused that tbe courts will declare tbe manner of its exercise to be violative of tbe constitutional rights of tbe property bolder. State ex rel. Kellogg v. Currens, 111 Wis. 431, 438, 87 N. W. 561; Benz v. Kremer, 142 Wis. 1, 125 N. W. 99.

In order to support legislation of this kind, a public need tb.erefor.must exist, and tbe act must at least have a tendency ■to support sucb need. In discovering tbe need and tbe purpose, tbe legislative branch of tbe government may exercise its discretion witbin tbe realm of reason, and if a public purpose can reasonably be conceived wbicb might rationally justify tbe act, tbe court cannot further weigh tbe adequacy of •the need or tbe wisdom of tbe method. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 549, 90 N. W. 1098.

Considerable evidence was offered in this case tending to show that tbe public welfare would or might be conserved by tbe various provisions of tbe ordinance wbicb were made tbe subject of attack.

In reference to tbe provision requiring a clear space of three feet between these boards and any adjacent structure, it was said that it was a proper regulation, because otherwise tbe boards might be an obstruction to tbe fire department in tbe event of a fire in a near-by building and also to tbe police department in tbe pursuit of criminals. Tbe trial court met -this claim by saying that tbe requirement that there should be a space of not less than two feet between tbe bottom of tbe board and tbe ground was sufficient for tbe needs of tbe fire and police departments. It may well be, however, that those needs would be much better subserved by having both provisions instead of only one.

Tbe reasonableness of tbe regulation requiring a clear space at tbe ends of roof and coping signs for tbe convenience of tbe fire department is more apparent, because tbe ordinance does not require any space to be left between tbe bottom of tbe boards and tbe roof or coping on wbicb they rest. So it is apparent that these signs might prove to be a serious obstruction. Eoofs, particularly where they are not flat, are at best often difficult places from wbicb to fight fire.

Tbe regulation in regard to tbe distance wbicb these boards must be placed from a sidewalk is justified on tbe ground that it will tend, to prevent pedestrians from being injured in ease any boards should fall down, and also on the ground that when they are placed near to the sidewalk they afford a convenient hiding place for thieves and thugs who contemplate robbing or assaulting passers -by, and on the additional ground that, when placed a reasonable distance from the lot line,, those committing crimes or nuisances behind the boards can be more readily discovered. The trial court did not give-much weight to the two latter considerations, and thought the first was wholly unnecessary, inasmuch as by another provision of the ordinance the boards were required to be built so as to withstand a wind pressure of 139 miles per hour. Of course this requirement would be sufficient, as far as the safety of the boards was involved, if they were kept in this condition at all times. But the evidence tended to show that, the resisting power of the boards was likely to be affected by frost and vibration, as well as other causes, so that the additional factor of safety required by this provision can hardly be said to be oppressive and to be.without the bounds of reason.

In addition to the provisions of the ordinance which the court held void, the respondent insists that the following requirements thereof are also void:

(1) That requiring the removal of existing boards and' the substitution of others complying with the terms of the ordinance, within one year after it became effective.

(2) That requiring the boards to be built of incombustible-material within the fire limits of the city.

(3) That requiring the boards to be of sufficient strength to withstand a pressure of forty pounds to the square foot.

1. The retroactive feature of this ordinance is probably the most drastic and doubtful requirement contained in it. These structures were lawful when erected, and the ordinance-in effect requires that they be torn down and replaced by others complying with its terms. In favor of the ordinance it may be said that these structures are of a flimsy and temporary character and that they must be frequently replaced. Furthermore, that there seems to be a substantial need for some alterations to be made therein within a reasonable time.The making of these alterations must practically necessitate the reconstruction of the billboards. The reasonableness of the provision must depend on the extent of the interference with the private right as well as the extent to which public welfare is involved. In case there is any reasonable doubt upon the point, it must of course be resolved in favor of the validity of the ordinance.

2. The provision of the ordinance requiring billboards to be built of incombustible material within the fire limits, is, we think, clearly valid as to new billboards that may be built, or as to replacement of old ones. Surely the city has as much right to require that these structures be built of incombustible material as it has to require that others should be so built. In so far as the ordinance requires existing billboards that are in good condition to be replaced by fire-proof material, the ordinance raises the question that has been discussed in the preceding paragraph.

3. As to the provision requiring the boards to be built of sufficient strength to withstand the pressure indicated, we entertain no doubt as to its validity and for reasons heretofore stated.

There are a number of cases in the books which support the conclusion reached by the circuit judge on those features of the ordinance which were declared to be beyond the power of the council to enact, and some that go much farther.

The following cases hold that a requirement that billboards be built a certain distance from the street is unreasonable: Crawford v. Topeka, 51 Kan. 756, 33 Pac. 476; Passaic v. Paterson B. P., A. & S. P. Co. 72 N. J. Law, 285, 62 Atl. 267; State v. Whitlock, 149 N. C. 542, 63 S. E. 123. In Pennsylvania it was held that an ordinance preventing the erection of any new billboards in tibe city of Chester was void. Bryan v. Chester, 212 Pa. St. 259, 61 Atl. 894. And in Massachusetts it was held that an ordinance preventing maintenance of billboards Avithin sight of a certain public park was void. Comm. v. Boston A. Co. 188 Mass. 348, 74 N. E. 601. See, further, Curran B. P. & D. Co. v. Denver, 47 Colo. 221, 107 Pac. 261.

An ordinance restricting the length of billboards to twenty-five feet and the height to eight feet and providing that they should not come nearer than ten feet to any building or structure was also held void. Curran B. P. & D. Co. v. Denver, supra. And one restricting the height of billboards so as not to exceed seven feet, without the permission of the common council, was held void in so far as it affected billboards in existence when the ordinance was passed. Whitmier & F. Co. v. Buffalo, 118 Fed. 773. In Illinois it was held that an ordinance requiring all billboards in a city to be built of incombustible material and not exceeding 100 square feet in area and not nearer than twenty-five feet back of the lot line and not to exceed ten feet in height above the adjacent street, and the bottom of Avhich should not be less than four feet from the ground, and that no such board should be erected nearer than twenty-five feet to any other board, was void. Chicago v. Gunning System, 214 Ill. 628, 73 N. E. 1035.

Other cases are cited by respondent, but the foregoing include most of those that can be said to be in point.- The restrictions in a number of these ordinances differ materially from those in the ordinance presently under consideration. Then conditions vary. What might be a perfectly reasonable police regulation for the city of Milwaukee might be entirely unreasonable for the city of Stoughton. Some states construe the police power strictly in favor of the individual. Others, this court among the number, construe it liberally in the interest of the general” public. So decisions of other courts declaring a given ordinance to be reasonable or otherwise, while helpful and entitled to careful consideration, are by no means controlling.

The validity of the ordinance under consideration is not without support in the authorities. The states of Missouri and Texas have sustained much more drastic ones. St. Louis Gunning A. Co. v. St. Louis, 235 Mo. 99, 137 S. W. 929; Kansas City G. A. Co. v. Kansas City, 240 Mo. 659, 144 S. W. 1099; Ex parte Savage, 63 Tex. Crim. 285, 141 S. W. 244. See, further, In re Wilshire, 103 Fed. 620; Welch v. Swasey, 193 Mass. 364, 79 N. E. 745; S. C. 214 U. S. 91, 29 Sup. Ct. 967; and Benz v. Kremer, 142 Wis. 1, 125 N. W. 99.

It seems certain that the ordinance was not passed for the purpose of abolishing billboards under the guise of regulation, but merely for the purpose of regulating them. Neither do we discover in it any evidence that its passage was prompted by esthetic considerations. Seasons why the various provisions are calculated to promoté the public welfare can be given in support of each of such provisions, albeit they are not very persuasive as to some of them. All of the objects which the council sought to accomplish were legitimate objects of police regulation. The only question before the court is whether the council went too far in prescribing the means by which these objects should be accomplished. It must be admitted that in some respects the ordinance approaches closely to the point of unreasonableness. Between the point where an ordinance is obviously reasonable and the one where it is obviously unreasonable there is a wide range, a broad field for the exercise of legislative discretion. The action of the municipal authorities within that range is conclusive. Eeasonable minds may well differ concerning the extent of it, and, this being so, legislative action should not be declared to be without justification unless it is clear be-, yond reasonable controversy that it is so. Measured by this standard, we are unable to reach the conclusion that any of tbe provisions of this ordinance transgressed any constitutional right of tbe plaintiff.

It is also argued by resxiondent tbat tbe ordinance is void because it empowers tbe building inspector to withhold permits unless be finds tbat tbe terms of tbe ordinance have been complied with. This question has been settled adversely to tbe respondent by our former decisions. Mehlos v. Milwaukee, 156 Wis. 591, 146 N. W. 882; State ex rel. Nowotny v. Milwaukee, 140 Wis. 38, 121 N. W. 658; Milwaukee v. Ruplinger, 155 Wis. 391, 145 N. W. 42.

By the Oourt. — Judgment reversed, and cause remanded with directions to dismiss tbe complaint.

A motion for a rehearing was denied, with $25 costs, on October 6, 1914.