City of Chicago v. System

• Decision Date: 17 April 1905
• Citation: 73 N.E. 1035,214 Ill. 628
• Parties: CITY OF CHICAGO et al. v. GUNNING SYSTEM.
• Court: Illinois Supreme Court

214 Ill. 628

73 N.E. 1035

CITY OF CHICAGO et al.

v.GUNNING SYSTEM.

Supreme Court of Illinois.

April 17, 1905.

Appeal from Appellate Court, First District.

Action by the Gunning System against the City of Chicago and others. From a judgment for complainant, affirmed by the Appellate Court (114 Ill. App. 377), defendants appeal. Affirmed.Edwin White Moore (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellants.

Henry W. Wolseley, John S. Miller, and E. Allen Frost, for appellee.

Appellee, the Gunning System, filed its bill in the superior court of Cook county, in which it sought to have declared null and void two ordinances of the city of Chicago, and also praying for an injunction restraining appellants from in any way interfering with its business. The bill alleges that the complainant is engaged in the advertising business in the city of Chicago, and has a large number of bulletin boards upon which are painted advertising signs, about 400 of which are maintained on vacant property, and all built and constructed in a safe and substantial manner, so that they do not menace or endanger the safety of persons whose business may require their passage in close proximity to them; that none of them were constructed upon any public streets, but wholly upon lots adjoining public streets, and that nothing was painted upon them which could in any manner injure the morals of any person or citizen; that it had expended large sums of money procuring leases from the owners of the lots upon which the said bulletins are situated, which leases run from one to five years, and it has expended large sums of money in erecting boards thereon; that it has made numerous contracts with customers, running from three months to a year, which obligate it to maintain upon the said boards the advertising of such customers, and its income is derived from the payments made by such customers for maintaining such advertisements.It then alleges that on June 29, 1900, the city council of the city of Chicago passed an ordinance as follows:

‘Section 1. All signs or bill-boards, other than those painted or erected upon any building, shall be limited in their superficial area to one hundred (100) square feet, and shall be constructed of sheet or galvanized iron, or some equally incombustible material, and such signs or bill-boards shall not be located nearer than twenty-five (25) feet back of the front line of the lot whereon the same is to be erected: provided, that signs not to exceed twelve (12) square feet each may be made of wood, but such signs shall in all respects comply with the above section.

‘Sec. 2. No such sign or bill-board shall be constructed at a greater height than ten (10) feet above the level of adjoining streets, and the base of the sign or bill-board shall be in all cases at least three (3) feet above the level of adjoining streets. In case the grade of adjoining streets has not been established, no sign or bill-board shall be constructed at greater height than ten (10) feet above the surface of the ground.

‘Sec. 3. No such sign or bill-board shall be erected within five (5) feet of any other sign or bill-board, and each such sign or bill-board shall have independent support.

‘Sec. 4. No such sign or bill-board shall be erected upon or along any boulevard or pleasure driveway, or in any streets where three-quarters (3/4) of the buildings in such street are devoted to residence purposes only, unless the person or persons desiring to erect such sign or bill-board shall first have secured the consent, in writing, of three-quarters (3/4) of the residence and property owners on both sides of the street in the block where it is desired to erect such sign or bill-board.

‘Sec. 5. All owners of signs or bill-boards erected before the passage of this ordinance, which signs or bill-boards have a superficial area exceeding one hundred (100) square feet or which are of greater height than ten (10) feet above the surface of the ground, (other than such signs or bill-boards as are painted or erected upon buildings,) shall pay an annual license on the first day of July of each year at the rate of fifty (50) cents per square foot, and in case of failure to pay such annual license within thirty (30) days of July 1 of each year, such signs or billboards shall be torn down by the fire department, under the direction of the commissioner of buildings.

‘Sec. 6. Any person, firm, company or corporation who violates, disobeys, omits, neglects or refuses to comply with, or who resists or opposes, the execution of any of the provisions of this ordinance shall be subject to a fine of not less than five ($5) dollars per day nor more than fifty ($50) dollars per day; and every such person, firm, company or corporation shall be deemed guilty of a separate offense for every day such violation, disobedience, omission, neglect or refusal shall continue, and shall be subject to the penalty imposed by this section for each and every offense; and any builder or contractor who shall construct any sign or bill-board on vacant property in violation of any of the provisions of this ordinance shall be subject to a like fine.

‘Sec. 7. This ordinance shall be in force from and after its passage.’

It is further alleged that said ordinance is wholly void for the reason that the city council is not given power to regulate or license signs or billboards or the owners of the same; that the ordinance is unreasonable and oppressive, and does not have uniform operation as to the class upon which it operates; that it deprives the owners of the lots adjoining the streets of the right to use 25 feet of their lots without compensation; that it attempts to prescribe the size of certain billboards which may be maintained without a license, and prescribes an annual license upon billboards exceeding a certain size which may have been erected prior to the ordinance; that it prescribes that certain boards exceeding a size specified shall either pay a license or be torn down.

The bill further alleges that in 1896 the city council passed a resolution providing that all persons erecting billboards for advertising purposes should pay a license of $1 for every 25 feet of frontage of such boards, and that under this resolution complainant had paid the city about $1,500 for the privilege of erecting its boards within the limits of said city; that said payments continued to be exacted from complainant from March, 1896, to June, 1900, and its boards were erected under such permit; that it maintains about 420,000 square feet of billboards in the city, and its gross income therefrom is about $120,000 per annum; that the average size of said boards is 50 by 12 feet, making 600 square feet per board; and that under section 5 of said ordinance it would be compelled to pay to the city treasurer, as a license for conducting its business, the sum of $210,000 per annum, amounting to $90,000 more than its gross receipts. It is further alleged that on June 28, 1901, the city council passed another ordinance, as follows:

‘Be it ordained by the City Council of the City of Chicago:

‘Section 1. All sign-boards and bill-boards now or hereafter erected on any residence street within two hundred feet of any park, park boulevard or driveway, except sign-boards not exceeding three feet square used for advertising the sale or renting of the property on which they are located, and all signs on buildings on any residence street within said two hundred feet, except signs advertising the business within, are hereafter declared to be public nuisances; and any such first described sign-boards or billboards now existing shall be removed by the owners thereof within thirty days after the passage of this ordinance, or upon the failure thereof the same shall be torn down and destroyed under the direction of the commissioner of buildings.

‘Sec. 2. Any person violating this ordinance shall be fined not exceeding $100 for the first offense, and for each subsequent offense shall be fined in a like amount and imprisoned not exceeding three months.

‘Sec. 3. This ordinance shall take effect and be in force from and after its passage.’

This ordinance is also alleged to be void for the same reasons set forth as to the first; that the complainant has no billboard or sign on any residence street, that all of the signs or billboards owned by it are on private property, and kept there under leases with the owners thereof, and that by the lastnamed ordinance the city attempts to declare what is a nuisance per se, which is beyond its power; that, acting under said ordinances, the complainant has been notified by the building commissioner of the city of Chicago, acting under orders of the mayor, to comply with the provisions of the same; and that during the year 1901, while attempting to repair some of its boards, its men were arrested and imprisoned for violating said ordinances. The prayer is that the court may find and declare said ordinances null and void, and that the defendants may be perpetually enjoined and restrained from tearing down said boards, or in any way interfering with the complainant in repairing the same or in erecting new boards.

Answer and replication being filed, the cause was referred to a master, who found that the ordinance of January, 1901, was wholly invalid; also that sections 4 and 5 of the ordinance of June, 1900, were invalid; but sustaining all other provisions of the latter ordinance. Objections were filed to this report by both parties, on consideration of which the report was amended, finding that so much of section 1 of the ordinance of June, 1900, as provided that signs and billboards should not be located nearer than 25 feet of the front line of any lot was invalid, and that so much of section 3 as provided that no board should be erected within 5 feet of any other board was also invalid. All other objections were overruled. Upon a hearing before the court the objections...