Thomas Cusack Co. v. City of Chicago

• Decision Date: 09 April 1915
• Docket Number: No. 9820.,9820.
• Citation: 108 N.E. 340,267 Ill. 344
• Parties: THOMAS CUSACK CO. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

267 Ill. 344

108 N.E. 340

THOMAS CUSACK CO.

v.CITY OF CHICAGO et al.

No. 9820.

Supreme Court of Illinois.

Dec. 16, 1914.

Rehearing Denied April 9, 1915.

Appeal from Superior Court, Cook County; Charles M. Foell, Judge.

Suit by the Thomas Cusack Company against the City of Chicago and others. From a decree for complainant, defendants appeal. Reversed and remanded, with directions.

Dunn and Cooke, JJ., dissenting.John W. Beckwith, Corp. Counsel, of Chicago (William H. Sexton and Loring R. Hoover, both of Chicago, of counsel), for appellants.

John S. Hummer, of Chicago, for appellee.

VICKERS, J.

The Thomas Cusack Company, a corporation, filed a bill in equity in the superior court of Cook county against the city of Chicago, the mayor of the city, and other officials, to restrain the enforcement of an ordinance regulating the erection and maintenance of billboards in residence blocks in said city. The bill alleges that the complainant is engaged in the business of outdoor advertising in Chicago and elsewhere, and that it maintains billboards on private property in residence blocks without having complied with an ordinance of the city of Chicago passed and in force December 5, 1910. The section of the ordinance the validity of which is involved is as follows:

‘707. Frontage Consents Required.-It shall be unlawful for any person, firm, or corporation to erect or construct any billboard or signboard in any block on any public street in which one-half of the buildings on both sides of the street are used exclusively for residence purposes, without first obtaining the consent, in writing, of the owners or duly authorized agents of said owners owning a majority of the frontage of the property, on both sides of the street, in the block in which such billboard or signboard is to be erected, constructed or located. Such written consents shall be filed with the commissioner of buildings before a permit shall be issued for the erection, construction, or location of such billboard or signboard.’

The bill alleges that a large number of billboards have been erected since the passage of said ordinance without complying with its provisions in regard to obtaining the consent of the majority of the property owners fronting on both sides of the street in the blocks in which such billboards have been erected and maintained; that the occupation of lots with these billboards is under leases made with the owners of the lots, and that the complainant has made contracts with its customers for the maintenance of said boards and the display of advertisements thereon. The bill alleges that the section of the ordinance above set out is invalid for the reason that it is discriminatory and unconstitutional, in that it deprives property owners of their property without due process of law, in violation of the Constitutions of the United States and of the state of Illinois. The bill also alleges that the billboards erected in violation of said ordinance do not in any way interfere with the public health, safety, welfare, or comfort, and alleges that the city of Chicago has no power to pass said ordinance, and that if said city has power to pass any ordinance on the subject of billboards, the one in question is void for unreasonableness. The prayer is for a perpetual injunction against the city and its officials enjoining them from the enforcement of said ordinance.

The defendants below answered the bill, in which the alleged invalidity is denied. The answer alleges that the ordinance was regularly passed by the city council pursuant to expressed legislative authority, and that it is a proper exercise of the police power of the city of Chicago and the state of Illinois. The answer sets up that billboards are dangerous to the public health, safety, morals, welfare, and comfort in that they afford protection to disorderly persons, who conceal themselves behind them; that the space behind billboards is used in such manner as to create nuisances by reason of the shelter and protection afforded by said billboards; that the maintenance of such billboards causes the accumulation of inflammable material, thereby increasing the danger of fires. The answer denies that the ordinance is invalid for any reason, and particularly that it is not invalid because discriminatory, oppressive or unreasonable.

The cause was heard upon evidence produced in open court, and a decree was entered in accordance with the prayer of the bill, perpetually enjoining the enforcement of the ordinance. The defendants below have prosecuted an appeal to this court.

The sole question involved for our consideration is the validity of section 707 of the municipal code of Chicago, which is quoted above. The contentions in support of the decree are, first, that the municipality had no power to pass the ordinance in question; and, second, conceding that the city has the power to pass proper regulatory ordinances in regard to the erection and maintenance of billboards, the ordinance here involved is void because it is not a proper exercise of such power, in that it is oppressive and unreasonable.

This court held in City of Chicago v. Gunning System, 214 Ill. 628, 73 N. E. 1035,70 L. R. A. 230,2 Ann. Cas. 892, that under paragraph 66 of section 1 of article 5 of the Cities and Villages Act, relating to the police power, and under paragraph 75 of said section, relating to unisances, a city has power to enact and enforce reasonable regulations respecting billboards within the corporate limits, whether upon public streets or private property. On page 639 of 214 Ill., on page 1040 of 73 N. E. (70 L. R. A. 230,2 Ann. Cas. 892), this court summed up its view upon this question, as follows:

‘We think it clear that either under paragrph 66 or 75, supra, full power and authority are conferred upon cities, towns, and villages to regulate the construction and use of billboards within their corporate limits, provided the regulation is not unreasonable. Moreover, paragraph 78 of section 1, article 5, confers upon cities and villagesthe right ‘to do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.’ No argument need be advanced that the structures described in the bill before us may become a menace to the safety of the public, and heace the subject of control and regulation. They may be erected in such a manner as to be dangerous to the public by falling or being blown down, or constructed of such materials and dimensions as to be dangerous, or placed upon buildings or other structures in such a manner as to endanger the life and limb of the citizen, or erected within the fire limits in such proximity to buildings as to increase the danger of loss by fire, or so as to obstruct the view of railroad crossings and thus endanger life by accident, or have printed or displayed upon them obscene characters tending to demoralize and injure the public morals. If boards are crected in violation of any of these public rights or interests, and of others which might be mentioned, there is ample power within the statute to regulate them, provided such regulations are reasonably necessary for the protection of the public health, morals or safety. Nor will the mere fact that such...