240 Mo. 659 | Mo. | 1912
Plaintiff is a Missouri corporation and is the owner of a sign painting and general advertising business, carried on in Kansas City, Missouri, in the conduct of which it owns and uses about three hundred bill boards, bulletin boards and other structures, some of which are rented to advertisers under contracts requiring their maintenance for the benefit of the lessees.
Plaintiff brought this suit to avoid and enjoin the provisions of an ordinance which had been passed by Kansas City on the 21st of September, 1905, to. regulate the erection and maintenance of signs, bill boards and for other purposes, for the alleged reason that it is unreasonable, oppressive and confiscatory; that it
AN ORDINANCE
Regulating the Erection and Maintenance of Signs and Bill Boards; Providing for the Issuance of Permits for Their Construction; and Providing Penalty for Violation Thereof.
Be It Ordained hy the Common Council of Kansas City:
Section 1. No person, firm or corporation shall erect or maintain within the city limits, any bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed in any way, except as is hereafter in this ordinance specified.
Section 2. No bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed in any way, shall be erected or maintained nearer to the street line than twelve feet, and same shall not exceed in height ten feet from the lower to the upper edge, and the lower edge must not at any point be higher than two feet above the surface of the ground.
Section 3. All bill boards or other boards, described in section 1 of this ordinance, shall be so constructed as to leave a clear space of at least eighteen inches between the lower edge of said bill board or other board and the surface of the ground.
Section 4. It shall be unlawful to erect or maintain any bill board or other board, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed, at any place within one hundred feet of the line of any public park or boulevard, except such small signs as are designated in section 6 of this ordinance.
Section 5. All bill boards or other boards, fence, sign or structure erected for advertising purposes, or upon which any advertisement is shown, painted or displayed, shall be erected on a straight line or lines. The ends of all of such boards must be at least three feet distant from any wall or fence, or other obstruction which would prevent a clear passage around the ends.
Section 6. The provisions of this ordinance shall not apply to small sign boards, not exceeding ten square feet.
Section 7. It shall be unlawful to "post or display on any bill board or advertising sign, any indecent, immoral or lascivious picture or design such as would exercise an immoral or improper influence on the minds of children and youth.
Section 9. The construction, anchorage and support of all signs and boards referred to in this ordinance shall be satisfactory to the superintendent of buildings, who shall condemn any that is found to be unsafe. All boards or signs now being maintained in manners or places not in conformity with this ordinance, shall within six months after the passage thereof, be torn down and removed, unless the same are altered so as to comply with the provisions of this ordinance, and a permit obtained from the superintendent of buildings as herein provided.
Section 10. It shall be the duty of the superintendent of buildings to see that the provisions of this ordinance are enforced. Every day that any board, sign or device of any kind is maintained or is in the course of construction contrary to the provisions of this ordinance or shall contain any advertisements prohibited by section 7 of this ordinance shall constitute a separate and distinct violation thereof, and upon conviction of such violation, any person, firm or corporation thus convicted shall be fined in a sum not less than ten dollars nor more than one hundred dollars for each offense.
Section 11. All ordinances or parts of ordinances in conflict with this ordinance, are, in so far as they so conflict, hereby repealed.
To this petition, the city and the mayor and the superintendent of buildings made answer, admitting the dne enactment of the ordinance attacked in plaintiff’s petition, and admitting that plaintiff had constructed and was maintaining the bill boards and
Plaintiff replied to the answer of defendants’ cross-bill, admitting the provisions of the ordinance regulating the construction and maintenance of bill boards and other bulletins and other advertising structures; denied other allegations, and asked for the relief set out in its petition.
The court granted plaintiff a temporary injunction upon the execution of a bond in the sum of $15,000, and afterwards the parties stipulated that the cause might be heard by-the court upon the pleadings and evidence admitted on the trial on the application for a temporary injunction, subject to the same objections as had been then made. The case was heard upon the affidavits and photographs filed by the parties. The court made a finding of facts upon the request of defendants, which, as far as material, will be adverted to in the opinion. The court found the conditions in Kansas City were such at the time of the trial, that the regulation of bill boards and bulletin boards was a public necessity; that the ordinance passed was reasonable in all respects, with two exceptions, noted in its decree. The court rendered its judgment enjoining defendants from tearing down or removing or in any way injuring all such bulletin boards and sign boards of the plaintiff as were erected prior to September 21. 1905, while they were kept in repair and not maintained'on any public street of Kansas City; and enjoining defendants from interfering with fences, structures or walls, if any, enclosing lands, or constituting parts of buildings, owned or leas'ed by plaintiff and devoted to advertising purposes; and enjoining de
Both parties duly excepted and perfected their appeals to this court.
The only evidence adduced was in the form of affidavits and photographs, and so far as necessary will be referred to in the opinion.
The error assigned by plaintiff is the refusal of the court to find that the ordinance was void in toto, and to enjoin all enforcement thereof. The error assigned by the defendants is the refusal of the court to extend the injunction granted by its judgment so as to prohibit the maintenance of any and all bill boards previously erected by plaintiff, after a lapse of six months from its passage, in a condition contrary to the provisions of the ordinance.
OPINION.
I. The first question presented on this appeal is the validity of the ordinance quoted in the statement.. The counsel for the city conceded in oral argument that section 4 of the ordinance was void. We are inclined to assent to that view, and will discuss the ordinance as if section 4 was expunged. This section is not one upon which any other section or provision of
The power to pass this ordinance is derivable from the charter of Kansas City, 1889, art. 1, sec. 1, p. 31, and paragraph 10 of the same section. By these provisions of its charter, the mayor and common council are granted power to pass all ordinances . . . not inconsistent with the provisions of the charter or the laws of the State, “as may he expedient in maintaining the peace, order, good government, health and welfare of the city; and to license, tax and regulate all occupations, professions and trades not heretofore enumerated of whatever name or character.” It is evident from these terms of the charter of the defendant city, that its enactment of this ordinance was an exercise of the inalienable police power devolved upon it as an auxiliary to the State government. Within that sphere of action, its ordinances have all the force of laws, and its mayor and common council are a ‘ ‘ miniature general assembly.” [Taylor v. City of Carondelet, 22 Mo. l. c. 112; City of St. Louis v. Foster, 52 Mo. l. c. 515; Union Depot Ry. Co. v. Southern Ry. Co., 105 Mo. l. c. 575; Jackson v. Grand Ave. Ry. Co., 118 Mo. l. c. 218-219; State ex rel. v. Brown, 57 Mo. App. l. c. 206.] The power to pass this ordinance being thus seen to flow from an ample source found in the charter, the next question is whether its exercise was justified by existing conditions.
The evidence relating to the present case and to a similar suit, brought by the Thomas Cusack Company, which was tried with this case, disclosed, in substance, that about ten miles of linear measurement in the limits of Kansas City were occupied by different concerns engaged in the erection and maintenance of bill boards, bulletin boards and other structures for
The evidence relating to the bill boards, bulletin boards and advertising structures owned by the plaintiff did not show that they were as insecure and dangerous as those belonging to the other persons, nor did it show that plaintiff’s bill boards or bulletin boards exhibited any immoral displays; but it did show that plaintiff’s advertising structures, owing to their lack of conformity to the requirements of the ordinance, were so located and maintained as to constitute a serious menace to the people of Kansas City; that they interfered with the extinction of fires by the fire department, and, by their improper height and size, assisted in the spread of fires and obstructed the work of the fire department; and that in order to remedy these evils they should be made to conform to the provisions of the ordinance under consideration. Evidence of these facts was given in. the affidavit of Edward Trickett, chief of the fire department, which mentions the plaintiff company by name as being one of the concerns which maintained such bill boards. The condition of the bill boards belonging to plaintiff was further disclosed by the affidavit of W. C. Brooks,
■ “First, that municipal corporations, even under their general police powers, may, by ordinance, exercise reasonable control over the construction and maintenance of bill boards, house signs and sky signs.
“Second, that said power to regulate said mat-’ ters begins where the public safety, health, morals and good government demand such regulation, and ends where those public interests will not be beneficially served thereby.
“And, third, that the mere unsightliness of bill boards and of similar structures, as well as their failure to conform to esthetics, is no valid reason for their total or partial suppression.”
This specification of the requisites essential to the validity of an ordinance like the present was made
In view of this ruling and the finding of the trial court, upon ample testimony in the record, that the time was ripe for action by Kansas City, we hold that the present ordinance was a valid and constitutional enactment and a salutary and necessary measure of public protection as to each and every provision therein except section 4.
II.’ Counsel for plaintiff also urge that some, words in the ordinance are susceptible of the construction that would prevent the placing of proper advertising upon the wall of an integral building or the side of a fence surrounding a lot if such structures happened to exist within the limits of proximity to the street line which the ordinance intended to neutralize. We do not think this a fair interpretation of the ordinance nor that the legislators had any such intention. The ordinance was directed against the improlper erection and maintenance of structures for advertising purposes within a fixed distance from the street line. It’liád no purpose to prohibit the use of a side of a house erected for residence purposes or an enclosing-fence to guard property, which trenched within the distance required to be kept clear by the ordinance, by affixing to either of them innocent advertising clis
We, therefore, hold that there is nothing in any provision of the ordinance which warrants the criticism thus attempted to be made, and that the trial court misconceived the true meaning of the ordinance in holding that it forbade the display of proper advertising on any such structures, or was intended to compel the removal of such structures.
III. The next question presented by this appeal is the measure of relief to the respective parties under the pleadings and proof. This question, as far. as plaintiff is concerned, has been completely answered by what has been ruled above, to the effect that the plaintiff is entitled to no relief except an injunction against the enforcement of section 4 of said ordinance. The only remaining inquiry is, What relief should be accorded defendants in this action? The object of the cross-bills of defendants is to secure the enforcement of the ordinance by a mandatory injunction. The ordinance is a quasi-criminal enactment. Its sanction is a fine against the owner and the prevention of his injurious use of his property by causing its'removal so as to conform to the ordinance in the event he should continue, after the passage of the ordinance and beyond the time limit for compliance therewith, to use his property to the public detriment as defined in said ordinance.
The jurisdiction of equity to prevent irreparable injury to property is not devested by the fact that the act to be enjoined may also be a violation of the criminal law; neither doe's a court of equity lack power to enjoin the continuance of a public nuisance. Its action in these instances is incidental and grows out of its inherent jurisdiction to protect property rights from destruction and to conserve the morals of the.
The ordinance passed by Kansas City in the proper exercise of its governmental power contains within itself the efficient means of enforcement against this plaintiff and all other persons affected thereby. It points out in terms (sections 9 and 10) the proper methods by which and the time within which obedience to its commands may be compelled, thus affording to the city a full, complete and unembarrassed remedy by legal procedure, and leaving no present basis for its countersuit in equity. [State ex rel. v. Wood, 155 Mo. l. c. 447.]
This was an ordinance in pursuance of the police power of the city and enacted upon an adequate showing of public necessity. Such ordinances are enforceable, when otherwise valid, in praesenti as well as in futuro. They do not in a legal sense take the property of persons against whom they are directed. They simply regulate the use of such property by prohibiting its injurious or criminal use by the owner, and hence they do not offend (as claimed by plaintiff) any provision of the organic law protecting vested interests or inhibiting retrospective legislation. This is typified by the provisions of the ordinance under review. None of them either in words or by intendment deprived the plaintiff of the use of any of its property prior to the adoption of the ordinance. They merely require plaintiff and all others similarly situated to refrain from the use or maintenance of their property
Under these rulings it is clear that the ordinance before us became operative against plaintiff and other persons similarly situated on the date of its passage and after the lapse of the time therein specified, both as to future erections of bill boards, bulletin boards and other advertising structures, and as to the future maintenance of any which had been erected previously to the passage of the ordinance; and that the city was lawfully empowered to compel full compliance with each and all of the provisions of said ordinance except section 4. Hence we overrule the contention that any other sections or provisions of said ordinance were in
IV. It follows that there is no impediment in the way of a full enforcement of all the provisions -of said ordinance (except section 4) in the manner therein specified and defined, and plaintiff had the full measure of relief to which it was entitled by the injunction awarded against the enforcement of section 4; and that its bill should have been dismissed as to all other purposes and objects; and that the cross-bill filed by defendants should not have been sustained, for the .reason -that the city has a full, complete and unembarrassed remedy at law in the manner pointed out in Ps ordinance to enforce all the provisions thereof, exce^-. - section 4, at once against plaintiff and other owners of bill boards, bulletin boards and advertising structures.
The judgment is reversed and the cause is remanded with directions that the court shall enter a decree in conformity with this opinion. Let the costs of both courts be equally divided between the plaintiff and the defendant city.
PER CURIAM. — The foregoing opinion bv Bond, C., in Division One, is adopted-as the opinion of the Court in Banc.