Cream City Bill Posting Co. v. City of Milwaukee

• Decision Date: 01 May 1914
• Docket Number: No. 79.,79.
• Citation: 158 Wis. 86,147 N.W. 25
• Parties: CREAM CITY BILL POSTING CO. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

158 Wis. 86

147 N.W. 25

CREAM CITY BILL POSTING CO.

v.CITY OF MILWAUKEE ET AL.

No. 79.

Supreme Court of Wisconsin.

May 1, 1914.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by the Cream City Bill Posting Company against the City of Milwaukee and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions to dismiss complaint.

On January 31, 1910, the common council of the city of Milwaukee passed an ordinance regulating the erection and maintenance of signs and billboards and providing for the issuance of permits for their construction and the license for their use and a penalty for the violation of the ordinance. On April 28, 1913, the common council adopted an amendment to section 5 of said ordinance. The ordinance is quite lengthy. The following synopsis of its provisions is taken from the brief of the appellant:

“Section 1. No sign, billboard, board, fence, or structure of any kind to be used for advertising purposes shall be maintained in Milwaukee except as provided in this ordinance.

Sec. 2. (a) No such structure shall exceed at any point twelve feet in height from the lower to the upper edge. (b) The lower edge of such structure shall not be more than three feet, nor less than two feet, above the surface of the ground. (c) The ends of such structure not to be nearer than three feet to any building, or wall, fence or other structure or obstruction. (d) Such (structures, when on streets, shall be erected at such a distance from the line of the street, alley or public way as shall be equal or greater than the height of such structure. (e) Must be likewise back from the water line when on a navigable water way.

Sec. 3. (a) Such structures shall be put up and maintained so as to withstand a wind pressure of not less than forty pounds to a square foot, with a factor of safety of four. (b) Such structures, when maintained on any wall, shall be securely fastened, and the fasteners shall be of metal, maintained free from rust or defects.

Sec. 4. Such structures, when within the fire limits shall be built entirely of incombustible materials. (1) This provision not to include signs constructed of wood maintained on the walls of buildings, when such signs do not exceed from the lower to the upper edge two feet in height, when not maintained above the lower edge of second story window and not more than thirty feet above the surface of the sidewalk. (2) Or to the wooden letters or numbers attached to incombustible structures.

Sec. 5 (as amended) (a) Such structures when on the roof or coping of any building, not to exceed ten feet in height. (b) The lower edge of such structure shall not be more than two feet above the surface of the roof or coping. (c) Such structures shall not be nearer than three feet to any abutting building, wall or structure or obstruction which would prevent the clear passage around it. (d) Permits, however, may be issued for signs of any height on roofs whenever they contain open space through which winds may pass at least one-half the front area of the same and when they are to be no nearer than three feet to any obstruction, if the building inspector shall find upon examination that the building will safely support a structure twice the weight of the same, etc.

Sec. 6. Such structures, when illuminated by artificial light, to be constructed of incombustible materials.

Sec. 7. (a) No part of such structures, or any anchor, brace, guide wire, etc., shall be fastened to fire escapes, fire ladders, etc. (b) Shall not be put up to cover or obstruct any door or window, or so as to prevent or hinder the raising or placing of ladders against any such building by the fire department.

Sec. 8. No sign, picture, poster or advertisement to be placed on any public street or structure on any public street or public ground.

Secs. 9 to 12. These sections govern the issuing of permits to persons to erect signs, the legality of which was not questioned in this suit.

Sec. 13. Such structures as are not in conformity with the ordinance shall within twelve months after passage and publication of this ordinance be removed by the owner, unless such structure be altered so as to comply with the provisions of the ordinance.

Sec. 14. Exempts from the ordinance: (1) Signs which do not exceed six square feet. (2) Signs painted upon the walls of any building. (3) Letters or numbers painted or attached to windows. (4) Any poster, picture or advertisement put up on a billboard for which a permit has been issued.

Sec. 15. Prohibits exhibiting or displaying obscene pictures and those portraying murderous or criminal personal actions.

Secs. 16 to 19. These sections contain the penalties and power to revoke licenses and permits, which were not questioned in this suit.”

The foregoing synopsis is sufficiently complete to enable the reader to correctly understand the issues in the case.

The plaintiff brought this action to enjoin the city of Milwaukee from enforcing the provisions of the ordinance and to secure judgment declaring the same to be unconstitutional and void. The trial court held that the following provisions of the ordinance were oppressive, and that neither the state nor the city in the exercise of the police power had the power to pass the same: (1) That portion of section 2 which reads as follows: “The ends or sides or any part of such structure shall not be nearer than three feet to any building, wall, fence or other structure or obstruction which would prevent the clear passage around any part of such structure. Any such structure erected or maintained upon premises abutting upon any street, alley or public way shall be erected or maintained at such a distance from the line of such street, alley or public way as shall equal or be greater than the height of such structure measured from the point of its greatest height to the established grade at the place of its location of such alley, street or public way upon which said premises abut; and when said premises abut upon a navigable water way, the distance from the line of such water way to the place where such structure is erected or maintained shall be equal or greater than the height of such structure measured from the point of its greatest height to its base.” (2) That portion of section 5 which reads as follows: “* * * And no part of such structure shall be nearer than three feet to any abutting building, wall or structure, or obstruction, which would prevent the clear passage around any part of such structure.” (3) The amendment to section 5 of the ordinance regulating billboards located on roofs and copings, which modifies the provisions of the original ordinance in some respects.

Among other things, the court found that the plaintiff had a large number of leases for space and about 35,000 lineal feet of signboards in different localities in the city of Milwaukee; that it had a considerable investment in these signboards and leases and expended about $18,000 a year for the payment of its help; that the signs maintained by the plaintiff were substantial and were all located on private property; that its advertisements were mostly of a commercial nature and did not injuriously affect the safety, health, morals, or welfare of the public;that many of its signboards were constructed prior to the passage of the ordinance in question; that a large number of its signs did not comply with the terms of the ordinance as to height, as to the height of the lower edge from the ground, as to the distance they were located from streets and alleys, as to the required spaces between adjoining buildings and other obstructions, and in some other particulars; that none of them were made of incombustible material; that the dimensions required by the ordinance would not enable the plaintiff to fulfill certain of its contracts with advertisers; that since 1891 the wind has blown for a single mile at the rate of 78 and 90 miles per hour respectively in the city of Milwaukee, reaching the 78 point on one occasion and the 90 point on another; that to change or remove the billboards and signboards so as to comply with the ordinance would require the taking down of some of them and rebuilding all of them and the reposting of the advertisements and announcements now posted or displayed thereon; that such action would entail considerable expense upon the plaintiff; that it has been the custom of the plaintiff to repair and overhaul its billboards and signboards once each year; that the average life of said boards is five years, and the life of such boards, when altered or erected in compliance with the provisions of the ordinance relating to construction, would be extended about 25 per cent.; that billboards and signboards become in time loosened and weakened by the action of frost and rain and wind, and unless promptly repaired become unable to withstand the ordinary wind storms; that such structures, including some of the billboards and signboards belonging to the plaintiff, have been blown down in the city of Milwaukee, and when they were built upon or near the lot line have fallen over and across the sidewalks used by pedestrians; that many of said billboards and signboards are built on lot lines immediately adjoining sidewalks on busy streets in said city; that most of the billboards and signboards are built on the ground and are usually in sections of no more than 12 feet high; that some are double and triple deck billboards consisting of two or three sections of 12 feet each, built so that one extends above the other; that such double and triple deck billboards are usually built where the traffic upon the streets and sidewalks is heaviest; that billboards or signboards which are built higher than 14 or 15 feet above the ground, or which, when on roofs and copings of buildings, exceed 12 feet above the roof, are a hindrance to the fire department in the prevention and extinguishing of...