St. Louis Gunning Advertising Co. v. City of St. Louis

• Decision Date: 07 June 1911
• Citation: 137 S.W. 929,235 Mo. 99
• Parties: ST. LOUIS GUNNING ADVERTISING COMPANY v. CITY OF ST. LOUIS et al., Appellants
• Court: Missouri Supreme Court

137 S.W. 929

235 Mo. 99

ST. LOUIS GUNNING ADVERTISING COMPANY v. CITY OF ST. LOUIS et al., Appellants

Supreme Court of Missouri, First Division

June 7, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Walter B. Douglas Judge.

Reversed.

Lambert E. Walther and Charles P. Williams for appellants.

(1) Judicial authority to declare a police ordinance void on the ground of unreasonableness is to be very cautiously exercised. McQuillin on Ordinances, p. 298; State v Clifford, 128 S.W. 758; Wells v. Mt. Olivet, 102 S.W. 1182. All rights of every character are held subject to the police power. St. Louis v. McCann, 157 Mo 308; Eichenlaub v. St. Joseph, 113 Mo. 404; St. Louis v. Galt, 179 Mo. 16. The Legislature is the judge in the first instance of expediency, and its decision must be prima facie presumed to be correct. The decision of the Legislature as to the existence of the evil, and of the necessity for remedy, must, under evidence that is conflicting, be presumed conclusively to have been correct. State v. Layton, 160 Mo. 498. (2) In the exercise of charter-powers specifically granted, courts will not ordinarily inquire into the reasonableness of the ordinance. Morse v. Westport, 110 Mo. 502; Skinker v. Heman, 148 Mo. 355; Prior v. Construction Co., 170 Mo. 439; St. Charles v. Elsner, 155 Mo. 671. (3) There is no showing whatever that the ordinances were intended to be, or in fact are, discriminatory against plaintiff. (4) The various charter-provisions to which various regulations may be referred: Art. III, sec. 26, cl. 5; St. Louis v. Bowler, 94 Mo. 633; St. Louis v. Fischer, 167 Mo. 662; Hill v. St. Louis, 159 Mo. 171; Art. III, sec. 26, cl. 6, cl. 14, cl. 12. (5) The billboard cases set out and briefly discussed: City of Rochester v. West, 164 N.Y. 510; In re Wilshire, 103 F. 620; Gunning System v. Buffalo, 75 N. Y. App. 31; Rideout v. Knox, 148 Mass. 368; Whitmeier & Filbrick Co. v. Buffalo, 118 F. 773; Commonwealth v. Boston Advertising Co., 188 Mass. 348; People v. Green, 83 N.Y.S. 460; Bostock v. Sands, 52 A. 65; Chicago v. Gunning System, 214 Ill. 628; Bill Posting Co. v. Atlantic City, 58 A. (N. J.) 342; Crawford v. Topeka, 51 Kas. 756; Passaic v. Patterson Bill Posting Co., 62 A. (N. J.) 267; Hill v. St. Louis, 116 Mo. 527. (6) The definition clause in section 177 does not invalidate. (7) The court takes judicial notice of the general conduct of business. Wiggins Ferry Co. v. Railroad, 5 Mo.App. 375; Denegre v. Walker, 114 Ill.App. 234; Gunning System v. Chicago, 214 Ill. 640; Gas Company v. Lattler, 162 Ind. 320; State v. Gas Co., 163 Ind. 48; Smith v. Railroad, 114 Mich. 460.

Bishop & Cobbs for respondent.

(1) The charter of the city of St. Louis gives no express authority for the enactment of the ordinances in question. Par. 5, sec 26, Art. 3, gives only power to license and regulate occupations, trades, etc. It gives no authority to prescribe the location, height, etc., of signs and billboards. Par. 6, sec. 26, art. 3, gives only power to abate nuisances. Signs and billboards are not nuisances per se. The restrictions in these ordinances are not directed against nuisances at all, and cannot be justified on that ground. City of St. Louis v. Heitzeberger Packing Co., 141 Mo. 383; Yates v. Milwaukee, 10 Wall. 497; Crawford v. Topeka, 51 Kas. 762; Bryan v. Chester, 212 Pa. 259. Par. 14, sec. 26, art. 3, the "General Welfare" provision, gives the city authority to enact only such reasonable regulations as are necessary to maintain the peace, health, safety and moral welfare of the community. It contains no express authority to enact these ordinances. It is only a statement of the general police power. (2) There being no express authority to enact these ordinances, there is no presumption in favor of their validity. In fact, the burden is rather on the city to justify their provisions, under its general police power. State v. Butler, 178 Mo. 272; Scott v. People, 89 Ill. 197. (3) The test of the right to exercise the police power is necessity. The test of the method of exercising it is reasonableness. Unless, therefore, the city can justify the provisions of these ordinances by these tests, it is the duty of the court to declare them void. The city is limited strictly to the enactment of only such reasonable regulations as are necessary for the maintenance of the peace, health, safety or moral welfare of the community. Williamson v. Commonwealth, 90 Pa. St. 498; T. W. & W. R. W. Co. v. Jacksonville, 67 Ill. 40; Fisher Co. v. Woods, 187 N.Y. 90; Ritchie v. People, 155 Ill. 110; Ruhstrat v. People, 185 Ill. 133. (4) Neither of the ordinances involved here meets the tests of necessity and reasonableness and all of them are discriminative. Not one of the sections involved can be justified as a reasonable and necessary measure for maintaining either the peace, the health, the safety or the moral welfare of the community. The prohibitions, restrictions, and provisions of each section are so unnecessary, so unreasonable and so discriminative, that a mere statement of them reveals their invalidity. 1. Section 14 requires the payment of a permit fee of only one dollar for the erection of a structure, the cost of which does not exceed $ 1000. That is reasonable and fair. But if that same structure is used for displaying "pictorial or reading matter," a permit fee of $ 200 may be required. That is unreasonable, unnecessary and discriminative. 2. Section 81, makes a "sign" of any structure "erected on the top of any building or attached to the walls of any building" which is used for the public display of "pictorial or reading matter." If not so used, such structures are not subjected to the restrictions of this section. That is unjust classification and is discrimination. This section is also unnecessary and unreasonable in its provisions. 1st. As to existing signs. It requires the unnecessary destruction of all structures erected on the top or attached to the walls of any building, which are used for the public display of "pictorial or reading matter," and which may become rotten or unsafe. The right to repair and make safe is denied absolutely. The structure is condemned because of the way in which it is painted or papered. If the "pictorial or reading matter" is removed, then, under section 2, a permit to repair may be obtained. Neither peace, morals nor health is involved. Destruction is not necessary to safety. Discrimination is apparent. 2d. As to new signs. a. It requires all new structures, "attached to any building," which are used for displaying "pictorial or reading matter," to the extent of more than 3 1/2 x 10 feet in area, to be "constructed wholly of metal or other non-combustible material." This is an arbitrary requirement without regard to the location or character of the building to which it is attached. Other structures, such as balconies, porches, awnings, etc., not painted or papered with "pictorial or reading matter," may be attached to any building, if constructed of material satisfactory to the commissioner, or suitable to the building to which they are attached. This is discrimination. Non-combustible material is unnecessary in some places and on some buildings. b. It requires all new structures, "erected on any building," which are used for displaying "pictorial or reading matter," to be "supported upon heavy iron braces bolted to the walls or roofs of the building in a firm and secure manner." Other structures, such as towers, tanks, etc., on which no "pictorial or reading matter" is displayed, may be erected on any building without being so supported, provided they are made safe. The safety of these structures is the ultimate test, and that is determined by the location, size and character of the structure itself. This general arbitrary requirement is discriminative and is unnecessary. 3. Section 177, makes the term "billboard" to include "all structures of whatever material the same may be constructed, which are erected, maintained or used for the public display of posters, painted signs, pictures or other pictorial or reading matter," except those structures covered by section 81 -- the signs. This definition alone condemns the ordinance. If a fence, a shed, a barn, a store, a residence, or any other structure is used to display "pictorial or reading matter" of any kind, it becomes a "billboard," and is subjected to unreasonable restrictions which are not imposed on such structures if not so used. This is rank discrimination. Besides its provisions are so unreasonable and so unnecessary for either peace, morals, health or safety, that they violate every test of justification. 1st. It prohibits the erection or alteration of any structure used to display "pictorial or reading matter," more than fourteen feet in height. 2d. It requires an open space of four feet between each such structure and the ground. 3d. It prohibits any such structure within six feet of any other building, and requires that it be cut off or moved, if a building is erected within six feet of it. 4th. It prohibits any such structure within six feet of the side line of any lot. 5th. It prohibits any such structure within two feet of another such structure. 6th. It limits each such structure to a surface area of 500 square feet. 7th. It prohibits any such structure within 15 feet of any street, alley or right of way. 8th. If the building line of any building, within fifty feet of any such structure, is more than fifteen feet from the street or lot boundary line, then no such structure is permitted nearer the street or lot boundary line than that building line. 9th. It prohibits repairing any such structure, unless all of above restrictions are complied with. These restrictions are made to apply to all such structures without regard...