Curran Bill Posting & Distributing Co. v. City of Denver

• Decision Date: 07 February 1910
• Citation: 47 Colo. 221,107 P. 261
• Parties: CURRAN BILL POSTING & DISTRIBUTING CO. v. CITY OF DENVER.
• Court: Colorado Supreme Court

107 P. 261

47 Colo. 221

CURRAN BILL POSTING & DISTRIBUTING CO. v. CITY OF DENVER.

Supreme Court of Colorado, En Banc.

February 7, 1910

Appeal from County Court, City and County of Denver; Robert W Steele, Judge.

Action by the City of Denver against the Curran Bill Posting &amp Distributing Company. From a judgment against defendant assessing a fine for violation of a billboard ordinance defendant appeals. Reversed and remanded.

W. H. Andrew, Talbot, Denison & Wadley, and E. Allen Frost, for appellant.

H. M. Orahood, H. L. Ritter, N. B. Bachtell, Henry A. Lindsley, Thos. R. Woodrow, and Geo. Q. Richmond, for appellee.

WHITE J.

The appellant was adjudged to pay a fine for the violation of the provisions of an ordinance of the city of Denver, and appealed the case to the Court of Appeals. Upon the abolishment of that court the appeal was lodged in this by virtue of the constitutional amendment. The argument for reversal of the judgment is based upon the alleged invalidity of the ordinance under which the forfeiture was imposed.

The particular sections of the ordinance necessary to consider in this inquiry are as follows:

'Sec. 589. No person or persons, firm or corporation, shall within the corporate limits of the city of Denver, directly or indirectly, in person or by another, either as principal, agent, clerk or servant, erect or maintain, or cause to be erected or maintained, any billboard or other structure designed to be used for advertising purposes, whereon any poster, bill, painting, or other advertising matter whatsover may be placed, stuck, tacked, printed, posted, fastened or placed without a permit so to do from the fire and police board of the city of Denver.'

'Sec. 592. No person or persons, firm or corporation, shall directly or indirectly, in person or by another, either as principal, agent, clerk or servant, erect or maintain, or cause to be erected or maintained, any billboard or other structure as mentioned in section 589, any portion of which is within ten feet of any street, avenue or alley line, nor more than twenty-five feet in length, nor more than eight feet in height in any part above or on the established grade of the sidewalk abutting the land on which such billboard or structure is erected; nor shall any part or portion of the same be within ten feet of any building or structure.'

'Sec. 594. The fire and police board of the city of Denver may in its discretion revoke or decline to renew any license issued by it as provided in section 589, and no such license shall be issued for a greater period than one year. No application for a license to erect a billboard or other structure designed to be used for advertising purposes shall be considered by the fire and police board until the written consent of the adjoining lot owners and residents directly opposite to such proposed billboard, if any there be, shall be exhibited to the fire and police board, together with such application.'

It was agreed that the ordinance was passed and went into effect October 24, 1898, and that appellant possessed a license thereunder to do business; that a billboard within the city limits erected since the passage of the ordinance was owned and maintained by appellant within 10 feet of the street line, and more than 25 feet in length, and more than 8 feet in height. The evidence showed that the height of standard theatrical and commercial paper used for advertising purposes is uniform over the United States, and requires a billboard for advertising purposes not less than 9 feet 6 inches in height and from 20 to 35 feet in length; that it could not be placed upon a board only 8 feet in height without destroying the advertisement, and therefore, by reason of the limitations of the ordinance, defendant was deprived of that class of business. At the time of and prior to the trial the city of Denver was exercising its municipal functions under an act of the General Assembly of 1893, generally known as the 'Denver City Charter' (Laws 1893, c. 78), and its authority and powers are found in, derived from, and measured by that act. Under the charter certain specific powers are granted to the city, among which are the following: In article 2, § 20: '(4) To provide for the inspection and regulation of buildings and parts of buildings. * * * (10) Exclusively to provide for the licensing, regulating and taxing of all lawful occupations, and business places. * * * (32) To establish fire limits and such general regulations by ordinance for the prevention and extinguishment of fires as the city council may deem expedient. * * * (58) To secure the general health of the inhabitants by any means necessary: to regulate or prevent the carrying on of any business which may be dangerous or detrimental to public health, and to declare, prevent or abate nuisances on public or private property and the cause thereof.' And in section 22 of said article: 'To enact all ordinances necessary and proper for carrying into execution the powers specified in this act, and which it may deem necessary or requisite for the good order, health, good government and general welfare of the city.'

Under these provisions it is clearly evident that full power is lodged in the city to exact a license fee of those engaged in the business of bill posting, and to regulate the construction and use of billboards within the corporate limits of the municipality, provided the license fee exacted and the regulations imposed be 'reasonable, fair, and impartial, and not arbitrary or oppressive.' Phillips v. City of Denver, 19 Colo. 179, 183, 34 P. 902, 903 (41 Am.St.Rep. 230). The natural right one may have to use his own property as he wills is subject always to the limitation that in its use others shall not be injured. That which is hurtful to the comfort, safety, and welfare of society may always be prohibited under the inherent or plenary power of the state, notwithstanding the incidental inconvenience or loss individuals may suffer thereby. This power is the law of necessity, and is founded upon the maxim, 'Salus populi suprema lex.' The exercise of the power is essential to the maintenance of society, and the establishment of government itself presupposes the surrender to it by the individual citizen of the right to regulate, and even forbid, such use of his private property as would prove injurious to the citizens generally. City of Chicago v. Rogers Park Water Co., 214 Ill. 312, 73 N.E. 375; Mugler v. Kansas, 123 U.S. 623, 665, 8 S.Ct. 273, 31 L.Ed. 205. It is equally true, however, that the owner of property has the right to put it to any use he desires, provided in so doing he does not imperil or threaten harm to others. Legislative restrictions of the use of property are imposed only upon the theory of necessity; that is, they are necessary for the safety, health, comfort, or general welfare of the public.

As said in Mugler v. Kansas, supra: 'It does not at all follow that every statute enacted ostensibly for the promotion of these ends (the protection of public morals, the public health, or the public safety) is to be accepted as a legitimate exercise of the police powers of the state. There are of necessity limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute (Sinking Fund Cases, 99 U.S. 700, 718 ), the courts must obey the Constitution rather than the lawmaking department of government, and must upon their own responsibility determine whether in any particular case these limits have been passed. 'To what purpose,' it was said in Marbury v. Madison 1 Cranch, 137, 176 , 'are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.' The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty--indeed, are under a solemn duty--to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.' In State v. Whitlock, 149 N.C. 542, 63 S.E. 123, 128 Am.St.Rep. 670, the rule stated, applicable to the case under consideration, is that: 'Unless the ordinance in question is an unreasonable and unnecessary restriction of the right of the landowner to erect structures upon his land, it must be sustained as a proper exercise of the police power of the state. AEsthetic considerations will not warrant its adoption, but those only which have for their object the safety and welfare of the community.' In Varney v. Williams (Cal.) 100 P. 867, 868 (21 L.R.A. [N. S.] 741), the Supreme Court declares: 'That the promotion of aesthetic or artistic considerations is a proper object of governmental care will probably not be disputed. But, so far as we are advised, it has never been held that these considerations alone will justify, as an exercise of the police power, a radical restriction of the right of an owner of property to use his property in an ordinary and beneficial way. Such restriction is, if not a taking pro tanto of the property, a damaging thereof, for which * * * the owner is entitled to compensation.'...