State v. Whitlock

• Decision Date: 16 December 1908
• Citation: State v. Whitlock, 63 S.E. 123, 128 Am. St. 670, 149 N.C. 642 (N.C. 1908)
• Parties: STATE . v. WHITLOCK.
• Court: North Carolina Supreme Court

63 S.E. 123

(149 N.C. 642)

STATE .

v.WHITLOCK.

Supreme Court of North Carolina.

Dec. 16, 1908.

1.Municipal Corporations (§ 602^*)—Ordinances—Billboards—Regulation.

While a city, in the proper exercise of police power, may adopt billboard regulations, such regulations, to be sustainable, must be reasonable, and not prompted solely by aesthetic considerations.

[Ed. Note.—For other cases, seeMunicipal Corporations, Dec. Dig. § 602.*]

2.Constitutional Law (§ 81*) — Police Power.

It is a fundamental principle of government that the state may require the individual to use his property so that the public health and safety shall be best conserved.

[Ed. Note.—For other cases, seeConstitutional Law, Dec. Dig. § 81.*]

3.Municipal Corporations (§ 600*)—Police Power—Ordinances—Structures on Private Property.

A secure structure on private property, which is not per se an infringement on public safety and is not a nuisance, cannot be made one by a municipal ordinance, and then prohibited under the city's police power.

[Ed. Note.—For other cases, seeMunicipal Corporations, Cent. Dig. § 1332;Dec. Dig. § 600.*]

4.Municipal Corporations (§ 602*)—Billboards—Regulation.

While a city may prohibit the erection of insecure billboards along the edge of streets, or so near as to be a menace, and may require the owners to maintain such structures in a secure condition, etc., an ordinance requiring that all billboards shall be kept at a distance of at least two feet more than the height of the board from the outer edge of the sidewalk, and that no owner shall place any billboard or allow the same to remain nearer the edge of the sidewalk than the distance prescribed, is unsustainable for unreasonableness.

[Ed. Note.—For other cases, seeMunicipal Corporations, DecDig. § 602.*]

Appeal from Superior Court, Buncombe County; Peebles, Judge.

J. L. Whitlock was convicted of violating a billboard ordinance of Asheville, and he appeals.Reversed.

The defendant was charged before the police court of Asheville with a violation of the billboard ordinance of that city, as follows:

"Section 1.That all billboards now in use in the city of Asheville or which may hereafter be used in said city, shall be securely placed and kept at a distance of at least two feet more than the height of said billboard from the outer edge of the sidewalk of the street.

"Sec. 2.That any bill poster or owner of any billboard In the city of Asheville, who shall place any billboard, or allow any billboard to remain nearer the edge of the sidewalk than the distance prescribed in section 1 of this ordinance shall be fined $5.00 for each day the said billboard is allowed to remain."

The defendant appealed to the superior court from the judgment of the police court, and was tried at April term, 1908, of Buncombe superior court; his honor, Judge Peebles, presiding.From the judgment rendered, defendant appealed to the Supreme Court.

Craig, Martin & Winston, for appellant.

Hayden Clement, Asst. Atty. Gen., for the State.

BROWN, J.Without going into that feature of the case, we are of opinion that the charter of the city of Asheville confers ample power upon the municipal authorities to regulate generally the construction and use of billboards within its limits, and it follows that, unless the ordinance in question is an unreasonable and unnecessary restriction of the right of the landowner to erect structures upon his land, it must be sustained as a proper exercise of the police power of the state.Esthetic considerations will not warrant its adoption, but those only which have for their object the safety and welfare of the community.It is conceded to be a fundamental principle under our system of government that the state may require the individual to so manage and use his property that the public health and safety are best conserved.It is to restrict the owner in those uses of his property which he may have as a matter of natural right, and make them conform to the safety and welfare of established society, that the police power of the state is invoked.While this Is true, yet it is fundamental law that the owner of land has the right to erect such structures upon it as he may see fit, and put his property to any use which may suit his pleasure, provided that in so doing he does not imperil or threaten harm to others.Tiedman, Lim. 439.All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public; but a limitation which is unnecessary and unreasonable cannot be enforced.Although the police power is a broad one, it is not without its limitations, and a secure structure upon private property, and one which is not per se an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat and then prohibited.Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984;1 Dillon. Mun. Corp. 374.

It Is undoubtedly within the power of the corporate authorities of the city of Asheville to prohibit the erection of insecure billboards or other structures along the edge of the public streets, or so near as to be a menace, to require the owners to maintain all structures so located In a secure condition, and to provide for inspection and removal at the owner's expense, if condemned as dangerous.The city authorities may also adopt regulations as to the manner of construction of billboards, so as to insure safety to the passers-by; but the prohibition of structures upon the lot line, however safe they may be, is an unwarranted invasion...