Gunning System v. City of Buffalo

• Decision Date: 01 May 1907
• Citation: 157 F. 249
• Parties: GUNNING SYSTEM v. CITY OF BUFFALO et al.
• Court: U.S. District Court — Western District of New York

157 F. 249

GUNNING SYSTEM v. CITY OF BUFFALO et al.

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

May 1, 1907

William B. Hoyt and Charles L. Feldman, for complainant.

Louis E. Desbecker, for defendants.

HAZEL District Judge.

This is a suit in equity to restrain the city of Buffalo and its board of fire commissioners from removing or cutting down certain so-called bulletin boards or advertising signs, which at different times had been constructed upon private lands leased by the orator, and to adjudge null and void section 48 of chapter 4 of the Ordinances of the city of Buffalo. Such ordinance, enacted pursuant to the charter of the city of Buffalo (Laws 1891, p. 136, c. 105, Sec. 17), 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 permission of the common council; and any fence or billboard erected contrary to the provisions thereof shall be abated as a common nuisance by any officer of the fire department after two days' notice to remove the same.'

The defendants have interposed a plea in bar, and claim that in a former suit between the parties the constitutionality of the ordinance in controversy was upheld by the Supreme Court of the state of New York, and the objectionable structures were included within the provisions of the local statute. Gunning System v. City of Buffalo et al., affirmed 75 A.D. 31, 77 N.Y.Supp. 987. See, also, Whitmier & Filbrick Co. v. City of Buffalo (C.C.) 118 F. 773. The rule in this court, where the parties and the cause of action are the same, is to give the decision of the state court the same force and effect as would be given to it by the courts of the state in which the decision was rendered. Christmas v. Russell, 5 Wall. 290, 18 L.Ed. 475; Caujolle v. Curtiss, 13 Wall. 465, 20 L.Ed. 507; De Chambrun v. Campbell (C.C.) 54 F. 231; Clay v. Deskins et al., 63 F. 330, 11 C.C.A. 229.

The only question appearing in the record for determination is whether in the former action there was litigated the subject-matter now in dispute, or, if it was not directly litigated and determined, whether the matters in issue here were not fairly included therein. The issues raised in the former action in the state court were tried upon their merits. The judgment rendered declared that upon the evidence the structures were common nuisances, and also upon the authority of City of Rochester v. West, 164 N.Y. 510, 58 N.E. 673, 53 L.R.A. 548, 79 Am.St.Rep. 659, that the right of removal under the ordinance was a reasonable police regulation in the interest of the welfare of the community, irrespective of the proof of actual nuisance 'or probability of injury resulting therefrom. ' In the case cited, the Court of Appeals, speaking of a similar statute authorizing the regulation of billposting and the terms upon which a license to maintain billboards might be granted, says:

'We think this statute conferred upon the common council of the city authority to regulate boards erected for the purpose of billposting, so far, at least, as such regulation was necessary to the safety or welfare of the inhabitants of the city, or persons passing along its streets. That is precisely what the ordinance in question was intended to accomplish. To regulate is to govern by, or subject to, certain rules or restrictions. It implies a power of restriction and restraint, not only as to the manner of conducting a specified business, but also as to the erection in or upon which the business is to be conducted.'

And commenting upon the height and dimensions of billboards, the court says:

'If the defendant's authority to erect billboards was wholly unlimited as to height and dimensions, they might readily become a constant and continuing danger to the lives and persons of those who should pass along the street in proximity to them. That the Legislature had power to pass a statute authorizing the city to adopt an ordinance which, if enforced, would obviate that danger, we have no doubt. Nor was it in conflict with any provision of the state or federal Constitution.'

Authorities abound that when a statute is enacted by the Legislature of a state to protect the community, or...