Whitmier & Filbrick Co. v. City of Buffalo

• Decision Date: 05 November 1902
• Docket Number: 176.
• Citation: 118 F. 773
• Parties: WHITMIER & FILBRICK CO. v. CITY OF BUFFALO et al.
• Court: U.S. District Court — Western District of New York

118 F. 773

WHITMIER & FILBRICK CO. v. CITY OF BUFFALO et al.

No. 176.

United States Circuit Court, W.D. New York.

November 5, 1902

Spaulding & Sullivan (Tracy C. Becker and A. S. Gilbert, of counsel) for complainant.

Charles L. Feldman, for defendants.

HAZEL District Judge.

The question here presented for the decision of the court depends upon the validity and constitutionality of section 48 of chapter 4 of the ordinances of the city of Buffalo. If the section be void, its enforcement impairs the property rights of the complainant, which this court, sitting in equity, has the power to protect. The jurisdiction of the court is invoked through diversity of citizenship of the parties. The restrictive section of the ordinance relied on by the defendants reads as follows:

'Sec 48. No person shall hereafter erect any fence or billboard more than seven feet in height within the city of Buffalo without the permission of the common council; and any fence or billboard erected contrary to the provisions hereof shall be abated as a common nuisance by any officer of the fire department after two days' notice to remove the same. Any person, firm or corporation violating this section shall upon conviction, be punished by a fine of not less than $25, nor more than $50.'

It is claimed by the defendants that the enactment of the ordinance by the common council of the city of Buffalo is justified by the city charter (Laws 1891, c. 105, Sec. 17), by which it is provided:

'Sec. 17. The common council shall, from time to time, enact ordinances: * * * (8) To prevent and abate nuisances, * * * to locate, regulate and remove slaughter-houses, butcher stalls, fish stands, livery stables, tanneries and unwholesome and noisome buildings or places, and to compel the cleaning of the same whenever necessary. * * * (11) And such other and further ordinances not inconsistent with the laws of the state, as shall be deemed expedient for the good government of the city, the protection of its property, the preservation of peace and good order, the suppression of vice, the benefit of trade and commerce, the prevention and extinguishment of fires, the exercise of its corporate powers and the performance of its corporate duties.'

Notice to remove the billboards required by the ordinance was duly served upon complainant corporation, and upon its failure to comply the fire commissioners proceeded to remove them. It is conceded that the billboards erected by the complainant are more than seven feet in height, and that they were erected without the permission of the common council of the city of Buffalo, nor is it disputed that the city of Buffalo had the power to enact a restrictive ordinance. The counsel for complainant contends that the provisions of the ordinance by which a summary removal or destruction of the billboards is affected is void and unconstitutional. This question was recently twice considered by the appellate division of the supreme court, Fourth department, in the case of Gunning System v. City of Buffalo, 62 A.D. 498, 71 N.Y.S. 155; Id., 75 A.D. 31, 77 N.Y.S. 987. In the Gunning Case, an action similar to this brought against the city in the state court by a corporation maintaining similar structure, an injunction pendente lite was denied by the trial court. The appellate court declined to pass upon the validity of the ordinance or the existence of the nuisance upon the application for an injunction in limine, and such an injunction was issued. The case was then tried out upon the merits, and the validity of the ordinance judicially determined. The court then held that the structures were illegal on two grounds: First, that the ordinance designating them as nuisances was legal and valid; and, secondly, that irrespective of this ordinance, the board structures brought to the court's attention were common-law nuisances per se. It was further decided that the legislature had the power to delegate to the municipality the right to declare the structures condemned illegal, and to abate the same, and therefore the ordinance under consideration was legal and valid. The decision in the case of City of Rochester v. West, 164 N.Y. 510, 58 N.E. 673, 53 L.R.A. 548, 79 Am.St.Rep. 659, is cited as an authority for holding the ordinance constitutional. On appeal from the decision of the trial court, the decision of the lower court was affirmed on the ground that the action of the common council in enacting the ordinance in question was for the general welfare and good government of the city and its inhabitants. The appellate court in the Gunning System decision (75 A.D. 32, 77 N.Y.S. 987) did not deem it necessary to review the evidence, in view of the decision of the court of appeals in the case of City of Rochester v. West, supra, and sustained the ruling of the trial court that the ordinance was authorized by the charter of the city of Buffalo. In the West Case a like ordinance of the city of Rochester was reviewed. No provision for destruction of the billboards, however, was included in the Rochester enactment. The court of appeals passed upon two questions certified to it by the lower court. The second...