Horton v. Old Colony Bill Posting Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: PARKHURST, J.
• Citation: Horton v. Old Colony Bill Posting Co., 36 R.I. 507, 90 A. 822 (R.I. 1914)
• Decision Date: 26 June 1914
• Docket Number: C. Q. Nos. 452, 453.
• Parties: HORTON, Deputy Chief, v. OLD COLONY BILL POSTING CO.

90 A. 822

36 R.I. 507

HORTON, Deputy Chief,

v. OLD COLONY BILL POSTING CO.

C. Q. Nos. 452, 453.

Supreme Court of Rhode Island.

June 26, 1914.

Case Certified from Superior Court, Providence and Bristol Counties.

Complaints by Constant S. Horton, Deputy Chief, against the Old Colony Bill Posting Company, begun in the police court and appealed to the Superior Court. There defendant moved to quash the complaints and constitutional questions raised were certified. Questions answered.

Elisha C. Mowry, Asst. City Solicitor, and Albert A. Baker, City Solicitor, both of Providence, for complainant. J. Jerome Hahn, of Providence (Gorman, Egan & Gorman, of Providence, of counsel), for defendant.

PARKHURST, J. These complaints are for the violation of an ordinance of the city of Providence regulating outdoor advertising. One charges that the defendant "did unlawfully use, for the display of outdoor advertising, a certain structure, to wit, a billboard, located upon and over the Union street side of the roof of that certain building situated on the northeasterly corner of Fountain and Union streets," etc. (within the first building district of said city) "said structure not being constructed throughout of incombustible material as such term when referred to as a structural material is defined in chapter 472 of the Public Laws," an offense under section 4 of said ordinance. The other complaint charges that the defendant "did unlawfully construct and use for the display of outdoor advertising, a certain structure, all the supports and parts thereof set in and resting upon the ground, not being of brick, stone, terra cotta, concrete or metal, alone or in combination with any other or others of the same, said structure being situated on the southerly side of Huntington avenue, at and near Noyes avenue in said city of Providence, attached to the ground, more than six feet in height, not securely and immediately attached to the outside surface of a building, and nearer the line of said Huntington avenue than a distance equal to the height of said structure," an offense under section 6 of said ordinance. These complaints were duly prosecuted in the police court of the city of Providence between August 20, 1912, and March 26, 1913. On the latter date, the defendant, having without trial admitted evidence sufficient to convict (having previously moved to quash and said motion being denied), was adjudged guilty and sentenced to pay a fine, and appealed to the Superior Court. In the Superior Court, defendant again filed its motion to quash, raising certain constitutional questions; whereupon an order was made, May 3, 1913, certifying said constitutional questions to this court.

The ordinance of the city of Providence referred to in these proceedings is chapter 443 of the Ordinances of the City of Providence, approved July 11, 1910, passed pursuant to authority given by the General Assembly under chapter 542 of the Public Laws of Rhode Island, January Session 1910, approved April 14, 1910. Said chapter 542 of Public Laws of Rhode Island, January Session, 1910, reads as follows:

"An act authorizing cities and towns to regulate certain outdoor advertising.

"(Approved April 14, 1910.)

"It is enacted by the General Assembly as follows:

"Section 1. The term 'outdoor advertising' as used in this act shall apply only to all such advertising now or hereafter displayed so as to attract the attention of persons on any public highway, or while in the vehicle of any common carrier, or in any station of such carrier, or while in any public building, public park, public grounds, or other public places, whether such advertising be by means of printing, writing, picture, or a combination thereof, and whatever may be the means of display, except that it shall not include advertising located upon private property and relating exclusively to the business conducted on such property or the sale or rental thereof, or advertising in or upon the cars and stations of any common carrier.

"Sec. 2. In order to preserve the health, safety, morals, and comfort of the inhabitants of this state, the city council and town council of every city and town, in addition to any powers now enabling, shall have power by ordinance to regulate such outdoor advertising in such city or town, as to the place where such advertising may be permitted, the size and kind of structures upon which it may be placed, and the subject-matter that may appear thereon; provided, such regulations shall be reasonable in their requirements.

"Sec. 3. In order more effectively to secure compliance with such regulations, any such ordinance may provide that no such outdoor advertising shall be maintained or displayed unless such outdoor advertising, in respect to all the matters specified in section two hereof, shall be first approved, by a city or town officer designated in such ordinance, as being in conformity with such regulations: Provided, however, that, whenever such officer shall refuse or withhold such approval, application may be made to such city or town council for its approval of the same; and if approved by such city or town council, as being in conformity with such regulations, no approval of such city or town officer shall be required before maintaining or displaying the same.

"Sec. 4. Any person who shall violate any of such regulations, or maintain or display any such outdoor advertising without such approval in any city or town where such approval is required, shall be fined not exceeding ten dollars for every day such violation, maintenance, or display shall continue. Any and all officers authorized by such ordinance shall have the right to enter upon the premises where such outdoor advertising is maintained or displayed, for the purpose of inspecting the same, and may remove any and all such outdoor advertising and structures which are not in conformity with such regulations: Provided, any person maintaining or displaying the same shall have been convicted of any violation of this act regarding the same.

"Sec. 5. This act shall take effect from and after July 1, 1910."

Said chapter 443 of the City Ordinances reads as follows:

"An ordinance to regulate outdoor advertising in the city of Providence, and to preserve the safety, health, murals, comfort and welfare of the inhabitants of said city.

"(Approved July 11, 1910.)

"It is ordained by the city council of the city of Providence as follows:

"Section 1. In pursuance of the powers conferred upon the city council by chapter 542 of the Public Laws, passed at the January Session, A. D. 1910, and of all other powers conferred upon the same or the city of Providence by general and special laws hereunto enabling, and in order to preserve and promote the public safety, health, morals, comfort and general welfare, the following regulations and laws are hereby made and established respecting the following matters and things within the city of Providence.

"Sec. 2. The term 'outdoor advertising' as used in this ordinance shall apply only to all such advertising now or hereafter displayed in the city of Providence so as to attract the attention of persons on any public highway, or while in the vehicle of any common carrier, or in any station of such carrier, or while in any public building, public park, public grounds, or other public places, whether such advertising be by means of printing, writing, picture or a combination thereof, and whatever may be the means of display, except that it shall not include advertising located upon private property and relating exclusively to the business conducted on such property or the sale or rental thereof, or advertising in or upon the cars and stations of any common carrier.

"Sec. 3. No outdoor advertising of whisky, ale, wine, rum or other strong or malt intoxicating liquor, the sale of which without a license is prohibited by the General Laws of the state, shall be permitted within two hundred feet of the premises of any public or parochial school or of any church.

"Sec. 4. All structures constructed or used for the display of outdoor advertising, located upon or over the roof of any building or buildings in the territory comprised within the first or close building district in the city as now established by law, shall be throughout of incombustible material as such term when referred to as a structural material is defined in chapter 472 of the Public Laws, passed at the January Session, A. D. 1909.

"Sec. 5. No structure or billboard, constructed or used for the display of outdoor advertising, shall be located upon or over the roof of any building in any part of the city in such place thereon or thereover that, if it should be blown down by wind, or should fall by reason of its supports or any part of the building becoming decayed or otherwise out of repair or condition, or by reason of such supports or any part of the building being consumed or damaged by fire, it or any part thereof would be liable to fall upon any street, lane or other public traveled way; and to more definitely secure the public safety and diminish the danger from fire, no such structure or billboard, located upon or over the roof of any building in the city, shall be constructed more than nine and one-half feet high nor, if elevated on supports, more than eleven and one-half feet high over all, measuring from the part of the roof where the same is located, nor shall any one of the same be constructed more than twenty feet in length nor without leaving open spaces over the building beyond the two ends each at least two feet wide, nor any two or more of the same without open spaces over the building between and beyond the several ends at least two feet wide, nor shall any of the same be constructed in any manner that will prevent firemen from having reasonable access from any street, lane or other public traveled way by means of ladders to the roof of the building and the parts of the same behind such...