General Outdoor Advertising Company v. City of Indianapolis
| Decision Date | 27 June 1930 |
| Docket Number | 25,253 |
| Citation | 172 N.E. 309,202 Ind. 85 |
| Parties | General Outdoor Advertising Company v. City of Indianapolis, Department of Public Parks. [*] |
| Court | Indiana Supreme Court |
From Marion Superior Court (A22,126); Sidney S. Miller, Judge.
Suit by the General Outdoor Advertising Company against the City of Indianapolis, Department of Public Parks and others. From a judgment for defendant on demurrer to the complaint, the plaintiff appealed.
Reversed.
Jackiel W. Joseph and William J. Henley, for appellant.
Telford B. Orbison, City Attorney of Indianapolis, and Warrick Wallace, for appellee.
Thomas Cusack Company, for which the appellant was afterwards substituted as a party, sued to enjoin the board of park commissioners of the city of Indianapolis from interfering by authority of an ordinance enacted under § 8, ch. 144, Acts 1919, as amended by § 1, ch. 32, Acts 1920 (Spec. Sess.), § 10625 Burns 1926, with its maintenance and operation of advertising signs or billboards located within 500 feet of certain parks and boulevards.
The attorney for the board of park commissioners approved the form of an entry for a restraining order which was issued by the trial court in July, 1923, but failed to enter an appearance for the board in the cause--which was No. A22126 in the Marion Superior Court--and the board was defaulted February 5, 1924, a judgment of permanent injunction being rendered at that time against the appellee board. Some time after March 15, 1924, this attorney discovered the default judgment, and, on July 30, 1925 (a year and a half after the judgment was rendered), proceeding under ch. 115, Acts 1921, § 423 Burns 1926, he brought suit to set it aside, on the ground that it was taken against the board through mistake, inadvertence, surprise or excusable neglect, such suit being entitled City of Indianapolis, etc., v. Thomas Cusack Company and numbered A32126 in the same court. The trial of cause No. A32126 on April 13, 1926, resulted in a decision and judgment in favor of the plaintiff board, setting aside the default judgment and reinstating cause No. A22126.
The board of park commissioners thereupon filed in said cause No. A22126 a demurrer to the complaint of the Cusack company, which demurrer was sustained by the court. An amended complaint was then filed by the General Outdoor Advertising Company, which had succeeded to the business of the Cusack company and had been substituted as the party plaintiff. The personnel of the board of park commissioners having changed, the names of the new members were substituted for the former members, and the demurrer of the board to the amended complaint was also sustained. Upon plaintiff's refusal to plead over, judgment against the advertising company was rendered, from which this appeal was taken.
The appellant has attempted, by this appeal, to present alleged errors occurring in the proceedings in both causes Nos. A22126 and A32126. Other than to remark that this is "an appeal in two causes which, under our practice, come to this court under one number," appellant shows no authority for this unusual procedure, and we know of none. (It will be noted that subsequent to the passage of ch. 115, Acts 1921, § 423 Burns 1926, proceedings to set aside default judgments are independent original actions and not ancillary proceedings in the case in which the default was taken.)
The first four errors assigned and relied upon for reversal are alleged to have been made by the court in cause No. A32126, while the 5th to 9th errors assigned are alleged to have been made in cause No. A22126. The 10th alleged error was the overruling of appellant's motion for a new trial. This motion, which was filed in No. A22126, "prays the court for a new trial in the above entitled cause and in cause No. A32126," and the three reasons alleged in it refer to "the decision of the court in cause No. A32126." In no event could this motion be effective in either case. There was no trial in No. A22126 to be reached by a motion for a new trial, and the motion was not filed until July 3, 1926, more than 30 days after the decision was rendered in No. A32126. § 612 Burns 1926.
This court cannot determine in this appeal any of the errors which are alleged to have occurred in the trial of No. A32126. Appellant prayed an appeal in both cases, filed his praecipe for a transcript of the record in both cases, and assigned errors as above indicated, but this court does not have jurisdiction to determine an appeal from a judgment relieving a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect (that jurisdiction being in the Appellate Court, Acts 1925, ch. 201, § 1356 Burns 1926), and if it did have such jurisdiction and also had jurisdiction to determine both cases in one appeal, we would hold that appellant waived any errors occurring in No. A32126 when it agreed to a substitution of parties both plaintiff and defendant, and filed an amended complaint containing additional and different allegations from those contained in the original complaint.
The 5th, 6th and 7th alleged errors are that the court erred in sustaining appellee's demurrer to appellant's complaint and amended complaint; the 8th and 9th are that the court erred in sustaining appellee's motion to dissolve the restraining order granted appellant, and in rendering judgment in favor of appellee.
The amended complaint alleges that appellant is engaged in the business of outdoor advertising by means of signboards and billboards along the public streets of Indianapolis; that it has leases obtained prior to January 1, 1920, for terms of from three to 20 years on vacant lots fronting on various boulevards and parks, on which billboards are erected; that the advertising matter displayed is of reputable business concerns and that no illegal or immoral advertising is carried thereon; that the billboards are erected of sheet-iron and wood, safe against the dangers of wind, fire and the elements, upon concrete foundations built into the ground, all in conformity to the city building ordinance, and decorated in an artistic manner, and that the boards and premises are maintained in a first class, clean and sightly condition. An exhibit lists 162 panels or billboards (more than half of them being illuminated panels) which are maintained by appellant at 31 locations within 500 feet of boulevards or parks, and the complaint also alleges that the value of appellant's said property, together with its leases and real estate is $ 125,000. Section 1, ch. 32, Acts 1920 (Spec. Sess.), § 10625 Burns 1926 is set out (quoted in part infra), and General Ordinance No. 1, 1922, of the board of park commissioners of Indianapolis passed July 8, 1922, which prohibited and abated the placing and operation of advertising billboards within 500 feet of any park or boulevard, is made an exhibit (also quoted in part infra). The complaint then alleges that the ordinance is invalid for failing to make provision to compensate appellant for the destruction of its business maintained in and along parks and boulevards, and because it imposes unusual, unnecessary and oppressive restrictions and prohibitions upon said business; and that the said law and the ordinance violate § 21, Art. 1, Constitution, § 73 Burns 1926, in that they undertake to take appellant's property without just compensation, and violate § 1, Fourteenth Amendment, United States Constitution, in that they seek to deprive appellant of its property without due process of law.
When a municipal corporation exercises its police power, the courts will not interfere unless there has been a clear abuse of discretion, 43 C. J. 307; and where, as here, the police power is exercised through an ordinance enacted under express statutory authority, the courts cannot determine the reasonableness of the ordinance or question the same except upon constitutional grounds. 43 C. J. 303; Beiling v. City of Evansville (1896), 144 Ind. 644, 42 N.E. 621, 35 L.R.A. 272; Stuck v. Town of Beech Grove (1929), 201 Ind. 66, 163 N.E. 483.
Municipal corporations, under the police power, either by implied authority (Cream City Bill Posting Co. v. City of Milwaukee [1914], 158 Wis. 86, 147 N.W. 25) or under express statutory authority (Thomas Cusack Co. v. City of Chicago [1917], 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A. 1918A 136, Ann. Cas. 1917C 594; Id. [1914], 267 Ill. 344, 108 N.E. 340, Ann. Cas. 1916C 488), may reasonably control and regulate the construction and maintenance of advertising billboards. They may prescribe a secure manner of construction, compel the use of safe materials, limit the size, length, height and location with reference to streets, require clean and sanitary maintenance thereof, and prohibit indecent or immoral advertisements thereon, provided such regulations have some reasonable tendency to protect the public safety, health, morals or general welfare and do not unnecessarily invade private property rights. City of Rochester v. West (1900), 164 N.Y. 510, 58 N.E. 673, 53 L.R.A. 548, 79 Am. St. 659; St. Louis Gunning Adv. Co. v. City of St. Louis (1911), 235 Mo. 99, 137 S.W. 929; State v. Staples (1911), 157 N.C. 637, 73 S.E. 112, 37 L.R.A. (N. S.) 696; Ex parte Savage (1911), 63 Tex. Crim. 285, 141 S.W. 244, Ann. Cas. 1913D 951; Thomas Cusack Co. v. City of Chicago, supra; Cream City Bill Posting Co. v. City of Milwaukee, supra; Horton v. Old Colony Bill Posting Co. (1914), 36 R.I. 507, 90 A. 822, Ann Cas. 1916A 911; St. Louis Poster Adv. Co. v. City of St. Louis (1919), 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599; State, ex rel., v. Hauser (1922), 17 Ohio App. 4.
In St. Louis...
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