In re Wilshire

• Decision Date: 19 July 1900
• Docket Number: 46.
• Citation: 103 F. 620
• Court: U.S. District Court — Southern District of California
• Parties: In re WILSHIRE.

103 F. 620

In re WILSHIRE.

No. 46.

United States Circuit Court, S.D. California.

July 19, 1900

Borden & Carhart, for petitioner.

Walter F. Haas, City Atty.

ROSS Circuit Judge.

Section 11 of article 11 of the constitution of the state of California provides: 'Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with the general laws. ' By section 22 of article 1 of the charter of the city of Los Angeles that city is given the power 'to make and enforce within its limits such local police, sanitary and other regulations as are not in conflict with general laws and are deemed expedient to maintain the public peace, protect property, promote the public morals and preserve the health of its inhabitants'; and by subdivision 13 of section 2 of article 1 of its charter the city is empowered to license and regulate the carrying on of any and all professions, trades, callings, and occupations within the limits of the city, to fix the amount of license tax thereon, and to provide the manner of enforcing the payment of the same: provided, that no discrimination shall be made between persons engaged in the same business otherwise than by proportioning the tax upon any business to the amount of business done. On the 13th day of March, 1900 the city, through its council and mayor, adopted an ordinance entitled 'An ordinance regulating the height to which any fence, building, or other structure, erected, built, constructed, or maintained for the purpose of painting thereon any sign or advertisement for advertising purposes, or posting thereon or affixing or attaching thereto or thereon any bills, signs, or other advertising matter for advertising purposes, shall be erected, built, constructed, or maintained,' the first section of which declares:

That it shall be unlawful for any person, firm or corporation to erect, build, construct or maintain in the city of Los Angeles any fence, building or other structure of or to a greater height than six feet from the surface of a sidewalk, street, or the ground where the same is erected, built, constructed or maintained, for the purpose of painting thereon any sign or advertisement for advertising purposes or posting thereon of affixing or attaching thereto or thereon any bills or signs, placards, cards, posters or other advertising matter for advertising purposes.'

The second section of the ordinance prescribes the punishment to be imposed on those violating its provisions. The petitioner was charged with unlawfully maintaining on certain premises situated within the city of Los Angeles (shown by the case made before the court to have been at the time owned or leased by him) a certain structure of a greater height than six feet from the surface of the ground for the purpose of painting thereon a sign for advertising purposes, upon the trial of which charge he was duly convicted, and adjudged to pay a fine in a sum within the statutory amount, in default of which payment he was adjudged to be, and was in fact imprisoned, and from which imprisonment he seeks, by the present proceeding, to be discharged. The question in the case, therefore, relates to the validity of the ordinance mentioned; the petitioner contending that it deprives him of rights secured to him by the fourteenth amendment of the constitution of the United States, which declares, among other things, that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ' These provisions of the constitution secure to every one the right to engage in any lawful business, and to use and enjoy his own property at his will and pleasure, subject to the imposition of lawful licenses, taxes, and other legal regulations, and to the maxim 'Sic utere tuo ut alienum non laedas. ' 'Many of the powers exercised by municipalities,' says Judge Dillon in his work on Municipal Corporations, 'fall within what is known as the 'police power' of the state, and are delegated to them to be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storing of dangerous articles, to establish and control markets, and the like. These and other similar topics will be considered in appropriate places. But it may here be observed that every citizen holds his property subject to the proper exercise of this power, either by the state legislature directly, or by public or municipal corporations to which the legislature may delegate it. Laws and ordinances relating to the comfort, health, convenience, good order, and general welfare of the inhabitants are comprehensively styled, Police Laws or Regulations.' It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate...