City of Passaic v. Paterson Bill Posting

• Decision Date: 20 November 1905
• Citation: 62 A. 267,72 N.J.L. 285
• Parties: CITY OF PASSAIC v. PATERSON BILL POSTING, ADVERTISING & SIGN PAINTING CO.
• Court: New Jersey Supreme Court

62 A. 267

72 N.J.L. 285

CITY OF PASSAIC

v. PATERSON BILL POSTING, ADVERTISING & SIGN PAINTING CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1905.

(Syllabus by the Court.)

Error to Supreme Court.

The Paterson Bill Posting, Advertising & Sign Painting Company was convicted of violation of an ordinance of the city of Passaic, and brings error. Reversed.

William B. Gourley, for plaintiff in error. James Sullivan, for defendant in error.

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. 71 N. J. Law, 75, 58 Atl. 343. 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 8, 1903 (P. L. 1903, p. 513, c. 240), 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 the passage of the act, and the police justice has certified that no evidence was offered of it being dangerous to life or limb because of insecure fastening. It is obvious that the effect of the ordinance is to 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, 36 N. J. Law, 335, approved by this court in Pennsylvania R. R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1); and where no compensation is given to the land owner, 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 statutes are obviously intended to provide for the public safety, and the ordinances prescribed under them are reasonable and in compliance with their purposes, both the statutes and the ordinances are lawful, and must be given due effect When the control attempted to be exercised over private rights is in excess of that essential to effectuate such legitimate authority, it deprives the owner of his property, by circumscribing the use of it, without giving him the just compensation secured to him in such case by the organic law." The Supreme Court held that because the erection of such signs might be attended with danger to the public at times of severe storms or by the decay of their supports, the ordinance was not without legal authority. In our opinion the legality of the ordinance does not depend upon the possibility of danger thus suggested, but upon whether such a regulation is reasonably necessary for the public safety. There must always be a possibility of danger from the erection of any structure, and from its decay; but such a possibility is not sufficient to justify the municipal authorities in depriving a man of the ordinary use of his land. In all our cities and towns, fences and buildings are erected upon the street line, involving the same or even greater possibility of danger from severe storms or natural decay, but it would hardly be maintained that a municipality could be authorized by the Legislature to compel the owners of buildings already erected to take them down or move them 10 feet back from the...