Franklin Furniture Co. v. City of Bridgeport

• Decision Date: 27 June 1955
• Citation: 115 A.2d 435,142 Conn. 510
• Parties: FRANKLIN FURNITURE COMPANY v. CITY OF BRIDGEPORT et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 435

115 A.2d 435

142 Conn. 510

FRANKLIN FURNITURE COMPANY v. CITY OF BRIDGEPORT et al.

Supreme Court of Errors of Connecticut.

June 27, 1955.

Samuel Reich, Samuel S. Freedman and Harry Freedman, Bridgeport, for appellant (plaintiff).

John V. Donnelly, Bridgeport, for appellees (defendants).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and PHILLIPS, Superior Court Judge.

WYNNE, Associate Justice.

In this action the validity of an ordinance of the city of Bridgeport is attacked. The ordinance was adopted by the common council of the city on March 17, 1952, in the claimed exercise of police power. The plaintiff, a furniture dealer, instituted the action against the city and its prosecuting officers, alleging that the ordinance is void. An injunction restraining the enforcement of the ordinance was sought. The trial court found the issues for the defendants, and the plaintiff has appealed.

The plaintiff operates a furniture store on Main Street, a public highway in the city of Bridgeport. On December 31, 1946, it erected an advertising sign which extended outward from, and at right angles with, the face of its building and hung above the sidewalk. The sign cost approximately $2500. It was erected under a permit issued by the building inspector of the city in accordance with ordinances in existence at the time. There are similar signs throughout the city. Pursuant to the ordinance of March 17, 1952, demand has been made upon the plaintiff and others similarly situated to remove, alter or replace any signs which are in violation of the terms of the ordinance. No inspection of the plaintiff's sign or of other signs similar to it has been made by the city to determine whether they are in fact hazardous or unsightly. Marquees have been constructed and maintained across the public sidewalk in front of entrances to various hotels and theaters in the city.

The pertinent sections of the ordinance appear in the footnote. ¹ The legal issues presented in the assignment of errors cannot be better expressed than in the plaintiff's brief: '1. Was the Court in error in concluding that the City of Bridgeport has the power to prohibit the maintenance and erection of projecting advertising signs? 2. Is the passing of this ordinance by the Common Council an aribitrary, unreasonable and invalid exercise of the police power which deprives plaintiff of [its] property without due process of law? 3. Is the ordinance unconstitutional because of its discriminatory features?'

The plaintiff does not question the right of the common council of Bridgeport to enact an ordinance for the control, regulation and maintenance of highways in the city. The case of Yale University v. City of New Haven, 104 Conn. 610, 622, 134 A. 268, 47 A.L.R. 667, is in point. It answers one of the plaintiff's principal arguments, to wit, that its sign was erected by virtue of a permit issued by the city and that the city cannot now revoke that permit. An encroachment once permitted does not give rise to a franchise to continue it. Id., 104 Conn. at page 627, 134 A. 268. The Yale University case pointed out, 104 Conn. at page 627, 134 A. 268, that the board of aldermen in New Haven would have continuing control over any bridge the university might erect across a public highway to join its two art school buildings. The bridge, if built, would be built in the knowledge that the city could at any time order its discontinuance. In Andrew B. Hendryx Co. v. City of New Haven, 104 Conn. 632, 134 A. 77, the city's right to order the removal of a conveyer bridge that spanned a street was upheld. It was not even suggested that the city was under an obligation to show that the structure was dangerous or unsafe. This discussion disposes of the claim in the instant case that the plaintiff's expensive sign, once having been permitted, could endure.

As to the claim of discrimination, the ordinance excepts from its operation existing signs on the marquees of theaters, hotels or public buildings. It is our law that where there is some natural and substantial difference germane to the subject and purposes of the legislation, there is no illegal discrimination between those within an established class and others not so included. Lyman v. Adorno, 133 Conn. 511, 520, 52 A.2d 702; State v. Cullum, 110 Conn. 291, 295, 147 A. 804; see Second National Bank of New Haven v. Loftus, 121 Conn. 454, 460, 185 A. 423.

The claim is made that the ordinance is unconstitutional because it compels the removal of overhanging signs without any prior determination that such signs are hazardous. There was, however, a legislative finding by the common council in § 1 of the ordinance to the effect that projecting signs over sidewalks are hazardous and detrimental to the public safety; that they are a source of danger to users of sidewalks; that they have a tendency to interfere with the protection of life and property in the event of fire; and that they are unsightly. The plaintiff offered no evidence contradicting the soundness of this finding, and there is no basis in the record for rejecting it. The plaintiff had the burden of overcoming the presumption of the constitutionality of the ordinance. Murphy, Inc., v. Town of Westport, 131 Conn. 292, 303, 40 A.2d 177, 156 A.L.R. 568. While recitals of fact in a legislative act may not be conclusive, a decent respect for a co-ordinate department of the government requires the courts to treat them as true until the contrary appears. Thornton v. Lane, 11 Ga. 459, 521; see Watkins v. Holman, 16 Pet. 25, 55, 41 U.S. 25, 55, 10 L.Ed. 873; 2 Sutherland, Statutory...