62 A. 267 (N.J.L. 1905), The City of Passaic v. Posting

Citation62 A. 267, 72 N.J.L. 285
Opinion JudgeSWAYZE, J.
Party NameTHE CITY OF PASSAIC, DEFENDANT IN ERROR, v. PATERSON BILL POSTING, ADVERTISING AND SIGN PAINTING COMPANY, PLAINTIFF IN ERROR
AttorneyFor the plaintiff in error, William B. Gourley. For the defendant in error, James Sullivan.
Judge PanelFor affirmance -- None. For reversal -- THE CHANCELLOR, CHIEF JUSTICE, DIXON, GARRISON, PITNEY, SWAYZE, BOGERT, VREDENBURGH, VROOM, GREEN, GRAY. 11.
Case DateNovember 20, 1905
CourtSupreme Court of New Jersey

Page 267

62 A. 267 (N.J.L. 1905)

72 N.J.L. 285

THE CITY OF PASSAIC, DEFENDANT IN ERROR,

v.

PATERSON BILL POSTING, ADVERTISING AND SIGN PAINTING COMPANY, PLAINTIFF IN ERROR

Court of Errors and Appeals of New Jersey

November 20, 1905

Submitted March 27, 1905.

On error to the Supreme Court. For opinion of that court, see 42 Vroom 75.

For the plaintiff in error, William B. Gourley.

For the defendant in error, James Sullivan.

OPINION

SWAYZE, J.

The plaintiff in error was convicted of the violation of an ordinance of the city of Passaic regulating signs or billboards, and the conviction was affirmed by the Supreme Court. 42 Vroom 75.

The ordinance provides that no sign or billboard shall be at any point more than eight feet above the surface of the ground, and requires that it shall be constructed not less than ten feet from the street line.

The statutory authority for this ordinance is the act of April 8th, 1903 (Pamph. L., p. 513), which authorizes the governing body of any city to regulate the size, height, location, position and material of all fences, signs, billboards and advertisements. The statute does not limit the power of the municipal authorities to cases where the structures may be in a condition dangerous to the public safety, and the first section of the ordinance absolutely prohibits signs and billboards within ten feet of the street line. In the present case the billboard was erected in 1902, prior to [72 N.J.L. 286] the passage of the act, and the police justice has certified that no evidence was offered of its being dangerous to life or limb because of insecure fastening.

It is obvious that the effect of the ordinance is to

Page 268

deprive the landowner of the ordinary use for a lawful business purpose of a portion of his land. Such deprivation is a taking within the meaning of the constitutional provision ( Trenton Water Power Co. v. Raff, 7 Vroom 335, approved by this court in Pennsylvania Railroad Co. v. Angel, 14 Stew. Eq. 316), and where no compensation is given to the landowner the taking can only be justified if it is done in the exercise of the police power of the state.

Upon this question the legal rule is accurately stated in the opinion of the Supreme Court in this case, as follows: "The true rule to be extracted from the cases, and the one abundantly supported by them, is that when...

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