Haller Sign Works v. Physical Culture Training Sch.

• Decision Date: 19 April 1911
• Citation: 94 N.E. 920,249 Ill. 436
• Parties: HALLER SIGN WORKS v. PHYSICAL CULTURE TRAINING SCHOOL.
• Court: Illinois Supreme Court

249 Ill. 436

94 N.E. 920

HALLER SIGN WORKS

v.PHYSICAL CULTURE TRAINING SCHOOL.

Supreme Court of Illinois.

April 19, 1911.

Error to Municipal Court of Chicago; Max Eberhardt, Judge.

Action by the Haller Sign Works against the Physical Culture Training School. Judgment for plaintiff, and defendant brings error. Affirmed.Darrow, Masters & Bailey, for plaintiff in error.

Ryan & Condon (Irvin I. Livingston, of counsel), for defendant in error.

VICKERS, C. J.

This suit was brought in the municipal court of Chicago by the Haller Sign Works against the Physical Culture Training School upon a claim of $450 for erecting, installing, and equipping an electric sign on a building known as 4200 Grand boulevard, in the city of Chicago. The case was tried in the court below upon an agreed state of facts, from which it appears that on the 11th day of November, 1909, the parties entered into a contract for the construction of an electric sign 40 feet in length and 4 feet in width, and to contain in illuminated letters the words, ‘Bernarr MacFadden Healthatorium.’ The work was to be done under this contract for the sum of $450. It was further stipulated that the Haller Sign Works performed the conditions of the contract, and erected the sign upon the building in question in accordance with the requirements of the contract. The stipulation shows that the building upon which the sign was placed was on the corner of Forty-Second street and Grand boulevard; that Forty-Second street is a public thoroughfare of the city of Chicago and Grand boulevard is a pleasure driveway, containing a narrow park running down the center of the boulevard, adorned with trees; that the building occupied by the defendant below was located about 10 feet back of the sidewalk on Grand boulevard and about 5 feet from the sidewalk on Forty-Second street; that the position of the sign on the top of the building was about 50 feet west of the extreme west part of the sidewalk on Grand boulevard and about 30 feet from the sidewalk on Forty-Second street, and 100 feet above the level of the ground, and was so placed therein accordance with the requirements of the contract; that the sign extended east and west, parallel with Forty-Second street, and contained no other words or figures except ‘Bernarr MacFadden Healthatorium,’ which words were illuminated with incandescent lights so as to be visible at night; that the building in question was used by the training school as a school of physical culture; that the sign was constructed of metal and was securely fastened and not liable to cause injury to persons on the street or boulevard; that the sign was delivered by the plaintiff below about January 5, 1910, and was used by defendant below for about six weeks, when the authorities of the city of Chicago notified the proprietors of the training school to remove the sign, on the ground that it had been constructed and erected contrary to an act of the Legislature entitled ‘An act restricting the erection of structures for advertising purposes near parks and boulevards, and providing a penalty therefor,’ which act went into force July 1, 1909. Laws 1909, p. 290. It was further stipulated that, after the defendant below received this notice from the city of Chicago, it notified the plaintiff below of the action of the city authorities, and that the training school would be compelled to discontinue the use of the sign, and that thereafter the sign was not used, but was taken down in pursuance of the action of the city authorities. Plaintiff below had nothing to do with taking the sign down, and has not taken possession of any of the material out of which it was constructed. Upon these stipulated facts the municipal court held that the act of the Legislature of 1909 was unconstitutional and void, and that it was no defense to the action, and rendered judgment for the contract price of the sign against the Physical Culture Training School, whereupon the training school sued out a writ of error from this court.

The only question presented for our determination is the constitutionality of the act of the Legislature which was relied on below as a defense to this action. The act is as follows:

‘Section 1. That it shall be unlawful for any person, firm or corporation, to erect, or cause to be erected, a structure of any kind or character within five hundred (500) feet of any public park or boulevard within the limits of any city in this state having a population of one hundred thousand (100,000) or more, for the purpose of placing advertisements of any kind or character thereon; and that all billboards and advertising signs of whatever kind or character that are occupying space contrary to the provisions of this act shall be removed within one year after the passage of this act.

‘Sec. 2. Any person, firm or corporation violating the provisions of this act upon conviction thereof shall be subject to a fine of not less than fifty dollars ($50) nor more than five hundred dollars ($500).’

Plaintiff in error concedes that it has no defense to the action if the above statute is unconstitutional and void. It is sought to sustain the validity of this act as a proper exercise of the police power of the state. The natural right every citizen has to use his property according to his own will is necessarily subject to the limitation that in such use others shall not be injured.

[1] All uses of property or courses of conduct which are injurious to the health, comfort, safety, and welfare of society may be prohibited under the sovereign power of the state, even though the exercise of such power may result in inconvenience or loss to individuals.In this respect individual rights must be subordinate to the higher rights of the public. The power that the state may exercise in this regard is the overruling law of necessity, and is founded upon the maxim, ‘Salus populi est suprema lex.’ The existence and exercise of this power are an essential attribute of sovereignty, and the establishment of government presupposes that the individual citizen surrenders all private rights the exercise of which would prove hurtful to the citizens generally. City of Chicago v. Rogers Park Water Co., 214 Ill. 212, 73 N. E. 375;Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.

While the general principle above announced is uniformally recognized, it is equally true that the owner of property has the right to make any use of it he desires that does not endanger or threaten the safety, health, comfort, or general welfare of the public.

[2] It does not follow that because a statute has been enacted for the ostensible purpose of guarding the safety, health, comfort, or promoting the general welfare it must be accepted as a proper exercise of the police power of the state; nor can a statute which is, in fact, a proper exercise of such power be declared void merely because it results in circumscribing limits of individual conduct to narrower bounds. Necessarily there are limits beyond which legislation cannot constitutionally go in depriving individuals of their natural rights and liberties. To determine where the rights of the individual end and those of the public begin is a question which must be determined by the courts. The Constitution is the highest written law of the state. The courts must obey both the Constitution and the statutes, but in case of conflict between the two, the Constitution must control and the statute must give way. When there has been an attempt to exercise the police power of the state by the lawmaking department of the government and the validity of such act is challenged as being an unreasonable invasion of private rights, the courts must, upon their own responsibility, determinewhether in the particular case the constitutional limits have been passed. Sinking Fund Cases, 99 U. S. 700, 25 L. Ed. 496.

At an early date in the history of our country it was earnestly contended that to concede that the judicial department of the government could nullify the action of the legislative department by declaring its acts unconstitutional was inconsistent with the fundamental principles of our government and the independence of the three co-ordinate branches thereof. But this question was set at rest by the unanswerable logic of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. The chief justice used the following language: ‘The powers of the Legislature are defined and limited, and that those limits may not be mistaken or forgotten the Constitution is written. To what purpose 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. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.’

It will be noted that section 1 of the statute under consideration makes it unlawful to erect a structure of any kind within 500 feet of a public park or boulevard within the limits of any city having a population of 100,000 or more, for the purpose of placing advertisements of any kind or character thereon, and requires the removal of all billboards and...