City of Rochester v. West

• Decision Date: 20 November 1900
• Citation: 164 N.Y. 510,58 N.E. 673
• Parties: CITY OF ROCHESTER v. WEST.
• Court: New York Court of Appeals Court of Appeals

164 N.Y. 510

58 N.E. 673

CITY OF ROCHESTER

v.WEST.

Court of Appeals of New York.

Nov. 20, 1900.

Appeal from supreme court, appellate division, Fourth department.

Robert West was convicted in the police court of Rochester of violating a city ordinance regulating billposting, and appealed. On affirmance by the county court (51 N. Y. Supp. 482), accused appealed to the appellate division, which affirmed the judgment. 53 N. Y. Supp. 1101. Appeal on certified questions from the appellate division. Affirmed.

The defendant is the local manager of a corporation known as the ‘Rochester Billposting Company,’ and was arrested April 30, 1897, charged with the violation of sections 8 and 9 of an ordinance of the city of Rochester entitled ‘An ordinance relating to billposting and billboards,’ adopted by the common council of the city December 22, 1896. These sections are as follows:

‘Sec. 8. No person shall hereafter erect any billboard more than six feet in height within the city of Rochester without permission of the common council. Every applicant for permission to erect a billboard more than six feet in height within said city is required to give one week's notice in writing, personally or by mail, of such application to the owners, occupants or agents of all houses and lots within a distance of two hundred feet from where such billboard is to be erected. No such application shall be considered by the common council without verified proof of the service of the notice herein described, or the written consent of such owners, occupants or agents to the erection of said billboard.

‘Sec. 9. No fence or other structure within said city shall be used as a billboard without the consent of the common council. The same notice and proof required by section eight of this ordinance shall be necessary to obtain the consent of the common council to use such fence or structure as a billboard.’

Section 10 provides for a fine in case of a violation of any of the provisions of the ordinance.

It is admitted that the defendant on April 26, 1897, erected a billboard more than six feet in height on premises fronting on Lake avenue, between White and Spencer streets, and back of the street line, without taking any of the steps provided for by the foregoing ordinance. It was also conceded that ‘such billboard was erected upon lands leased by the said Rochester Billposting Company, and that such billboard was well constructed, of new material,’ and ‘that, out of six thousand posters put up each week for forty weeks of the year, not more than four hundred would go upon a billboard six feet high.’ The case was submitted to the police justice upon these facts, no other testimony being taken, and on June 4th judgment was entered against the defendant for the sum of five dollars. On appeal the county court affirmed the judgment. The appellate division affirmed the judgment of the county court, and allowed an appeal to this court, certifying the following questions: ‘First, whether or not the common council of the city of Rochester has authority, under subdivision 21 of section 40 of its charter, to pass the ordinance under consideration in this case; second, whether or not the ordinance in question is not an unreasonable and an undue restraint upon a lawful trade and business, and also a restraint upon the lawful and beneficial use of private property.’

John R. Fanning, for appellant.

P. M. French, for respondent.

MARTIN, J. (after stating the facts).

Whether this appeal should be sustained depends wholly upon the validity or invalidity of an ordinance of the plaintiff which forbids the erection, within its limits, of billboards more than six feet in hight without the consent more than six feet in height without the consent the plaintiff was authorized ‘to license and regulate billposters and bill distributors and sign advertising, and to prescribe the terms and conditions upon which any such license shall be granted, and to prohibit all unlicensed persons from acting in such capacity.’ Laws 1880, c. 14, § 40, subd. 21, as amended by Laws 1894, c. 28, § 9. We think this statute conferred upon the common council of the city authority to regulate boards...