State v. Higgs

• Decision Date: 27 March 1900
• Citation: 35 S.E. 473,126 N.C. 1014
• Parties: STATE v. HIGGS.
• Court: North Carolina Supreme Court

35 S.E. 473

126 N.C. 1014

STATE v. HIGGS.

Supreme Court of North Carolina

March 27, 1900

Appeal from superior court, Wake county; Hoke, Judge.

Sherwood Higgs was indicted for the violation of an ordinance of the city of Raleigh requiring the removal of all signs suspended over the sidewalks. From a judgment of conviction, he appeals. Reversed.

Clark J., dissenting.

To justify a conviction under an ordinance requiring the removal of all signs suspended over the sidewalks, and making a violation of the ordinance a misdemeanor, the city must allege and show that such signs obstruct, or tend to obstruct, the public highway, or that they are dangerous to the traveling public; and evidence that a sign is 14 feet above the sidewalk, and that it is securely fastened to the building, is not sufficient.

R. O Burton, for appellant.

The Attorney General and Watson & Gatling, for the State.

FURCHES J.

This is a prosecution commenced before the mayor of the city of Raleigh for an alleged violation of an ordinance of the city. The ordinance under which the defendant is indicted is as follows:

"Section 1. That no sign shall be suspended or projected over the sidewalks in the city of Raleigh.

"Sec. 2. That all signs that are now projected or that are suspended over the sidewalks of the city of Raleigh shall be removed, together with the rods and poles used for suspending or swinging said signs, by the 15th day of August, 1899.

"Sec. 3. Any person or firm violating the provisions of this ordinance or failing to comply with the provisions of the same, shall, upon conviction before the mayor, be fined fifty dollars, or imprisoned thirty days."

The legislature of 1899 (chapter 153, Priv. Acts) enacted a new charter for the city of Raleigh, and our attention is called to the following provisions therein for the purpose of showing the power of the city, which, the state contends, authorized the charge of the court and the verdict of the jury in finding the defendant guilty;

Sections of the charter:

"Sec. 33. That it shall be the duty of the aldermen to attend all the meetings of the board unless unavoidably prevented from doing so, and when convened, a majority of the board shall have power to make, and to provide for the execution of such ordinances, bylaws, rules and regulations, and such fines, penalties and forfeitures for their violation as may be authorized by this act, consistent with the laws of the land and necessary for the proper government of the city: provided, that no penalty prescribed by the board of aldermen for the violation of any of the provisions of this act, or of any ordinance, by-law, rule or regulation made in pursuance hereof shall exceed fifty dollars' fine or thirty days' imprisonment."

"Sec. 80. That all penalties imposed under the provisions of this act or of any ordinance, by-law or regulation of the city, unless herein otherwise provided, shall be recoverable in the name of the city of Raleigh before the mayor; and all such penalties incurred by any minor shall be recovered from the parent, guardian or master, as the case may be, of such minor."

"Sec. 34. That among the powers conferred on the board of aldermen are these: *** Ascertain the location, increase, reduce and establish the width and grade, regulate the repairs and keep clear the streets, sidewalks and alleys of the city; extend, lay out, open, establish the width and grade, keep clean and maintain others; establish and regulate the public grounds, including Moore Square, Nash Square and Pullen Park, have charge of, improve, adorn and maintain the same, and protect the shade trees of the city."

"Sec. 38. That they may require and compel the abatement of all nuisances within the city, or within one mile of the city limits, at the expense of the person causing the same, or the owner or tenant of the ground whereon the same shall be. ***"

Subsection 6 of section 79 provides: "(6) Any person ***; or who shall excavate, construct, build, use, keep or maintain any cellar, basement, area, passage, entrance or way under any sidewalk, or build, construct, keep, use or maintain any veranda, piazza, platform, building or stairway or other projection or construction upon or over any sidewalk in the city whereby the free and safe passage of persons may be hindered, delayed, obstructed or in any way endangered, *** without having first taken out a license therefor; *** shall be guilty of a misdemeanor, and upon satisfactory proof before the mayor shall be adjudged to pay for every such offense a fine not exceeding fifty dollars, or be imprisoned not exceeding thirty days."

The sections in the charter are not produced seriatim, but as they are presented in the brief and argument of counsel who represented the state.

Upon the trial the state introduced the charter and the ordinances of the city, and the following evidence: "The state then introduced Chief of Police Mullins, who testified that a written notice from the mayor to take down his sign was served on defendant before the beginning of this proceeding, which notice was put in evidence. That the sign was not taken down, and is still up. On cross-examination, the witness stated that the sign was an electric sign, which spelled out Higgs' name by the passage of a current of electricity; that it was an ornament to the street, and did not interfere with passage or vision. It was at its lower end about fourteen feet above the sidewalk, projected four or four and a half feet from building; was twelve to fourteen feet long, about eighteen inches wide, made of plank, and apparently a very heavy one; was fastened at the top to a bar of railroad iron, and at the bottom to a round bar of iron. The sign itself hung vertically, and he thought it was as practically secure as the house itself. Did not think there was any danger of falling or being blown down. Had never examined closely the fastenings to the bar of railroad iron. Witness identified the photograph of the sign, which was put in evidence, and which was taken before the lower swinging signs on the street were taken down. The sign which Higgs had swinging to the lower rod, as shown in the photograph, was taken down by him before this proceeding was started. The lower rod was also cut off at the end. Witness said it was still common for porticos or balconies, awnings and signs on awnings, and signs on the outer railing of balconies, and signs projecting a few inches over the sidewalks, to exist. There are many of them in the city. There are balconies in front of many buildings on Fayetteville street, projecting over sidewalk three to four feet. One over Yarboro House, Henry Building (with J. M. Broughton & Co.'s sign on outer railing; also Foller's, the tailor); one over A. B. Stronach's, with his sign on outer railing. Many awnings in the city which cover the entire sidewalk, some of wood, some of cloth,--some signs on cloth, as Berwanger's stretching clear across sidewalk; and some on wood, as W. B. Mann's, at edge or side of awning, and extending over street. Some other signs were allowed to set on sidewalk, as of Watts, the barber. A great many signs on the doorfacing, which project a few inches over the sidewalk, as R. B. Raney's, Raleigh Savings Bank's, Boylan, Pearce & Co.'s, W. E. Jones', a member of the board of aldermen, Cross & Linehan's. Jones & Powell have steps leading from Fayetteville street down into their cellar. On each side of cellar is an iron railing, and till recently they had suspended on the railing an ice and coal sign. W. H. King & Co.'s drug store projects above some distance over sidewalk, and sign is painted on it, as shown from the photograph. Y. M. C. A. Building has steps in street. W. Z. Blake, street commissioner, was introduced by the state, and testified that he measured that morning the distance from the front wall of Higgs' store to center of street. It was 49 1/2 feet. The state then introduced the charter of the city of Raleigh, as contained in chapter 153 of the Private Acts of 1899, and thereupon rested its case. The defendant's counsel contended that the ordinance was void; that on the evidence he was the owner to the center of the street, subject to the easement of the public, and had the right to make the customary and proper use of his property; that he was discriminated against, and that the ordinance was unreasonable and arbitrary and oppressive; that the board of aldermen had no power to adopt it, especially in its form and to the extent they claimed; and that it was an attempt to create a criminal offense, which they had no power to do." His honor charged the jury that if they believed the evidence they should find the defendant guilty. Verdict guilty. Defendant excepted, and appealed from the judgment pronounced.

There were exceptions taken on the argument to the jurisdiction of the mayor of the city to try the case, if the defendant was guilty of a criminal offense, for the reason that he was given exclusive jurisdiction. It was also contended that the ordinance was void for uncertainty, for the reason that it gave the mayor the discretion to fine the defendant, upon conviction, $50, or to imprison him for 30 days. We do not think either of these objections can be sustained. Article 4 § 14, Const., expressly provides for the establishment of such courts for the trial of misdemeanors in cities and towns; and the charter of the city of Raleigh (section 79, subsec. 6) expressly constitutes the mayor a court for the trial of misdemeanors committed within the city, when the punishment does not exceed a fine of $50 or imprisonment for 30 days. It would therefore seem that the mayor had jurisdiction, unless the ordinance is void, for the reason that it gives the mayor exclusive...