State v. Wiggenjost
| Decision Date | 21 February 1936 |
| Docket Number | 29481 |
| Citation | 265 N.W. 422,130 Neb. 450 |
| Parties | STATE OF NEBRASKA, APPELLANT, v. A. OSCAR WIGGENJOST, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. To acquire the means of supporting life by honest labor and skill is an inherent right of a law-abiding citizen and municipal restrictions thereon do not exist unless authorized and imposed in plain terms of the law.
2. The vocation of painting and hanging advertising signs does not imply any sinister influence on the public, calling for municipal surveillance in the form of a license in addition to an inspector's regulatory permit and a fee for each sign.
3. Municipal power to regulate commercial sign painting and sign hanging does not imply power to exact from a sign painter an annual license to pursue his vocation in addition to an inspector's regulatory permit and fee.
4. Municipal power encroaching upon individual rights does not exist unless plainly conferred by the city charter or other law.
5. Provisions of a city ordinance requiring a sign painter to pay a ten dollar annual license fee in addition to an inspector's regulatory permit and a fee of one dollar for each sign held invalid as not within the powers granted by the home rule charter of the city of Lincoln.
6. The invalidity of a license feature of a sign ordinance does not necessarily invalidate regulatory provisions of the same ordinance.
Appeal from District Court, Lancaster County; Frost, Judge.
A Oscar Wiggenjost was charged with violating an ordinance of the city of Lincoln regulating commercial sign painting and sign hanging, and from a dismissal of the prosecution, the State appeals.
Affirmed.
Loren H. Laughlin and H. B. Porterfield, for appellant.
Mockett & Finkelstein, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.
In the municipal court of the city of Lincoln, the building inspector presented a complaint charging A. Oscar Wiggenjost, defendant, with violations of ordinance in the following particulars: First count, erecting and hanging a sign for the Standard Market at 1535 O street without having registered to engage in the business of hanging and erecting signs; second count, erecting and hanging a sign for the Standard Market at 1535 O street without having obtained from the building inspector a permit to do so; third count, erecting and hanging a sign for The Lodge at 2135 O street without having registered to engage in the business of hanging and erecting signs; fourth count, erecting and hanging a sign at The Lodge at 2135 O street without having obtained from the building inspector a permit to do so.
On this complaint a warrant for the arrest of defendant was issued. He appeared before the municipal court and pleaded not guilty. Upon a trial he was convicted and sentenced to pay a fine and the costs of prosecution. From the sentence imposed upon him he appealed to the district court and there demurred to each count of the complaint. The demurrer was overruled as to the second and fourth counts, charging that defendant erected and hung signs without permits from the building inspector and sustained as to the first and third counts, charging that defendant erected and hung signs without registering or procuring a license to engage in that business. The city, prosecuting in the name of the state, stood upon its demurrer and the prosecution was dismissed as to the first and third counts of the complaint. From the dismissal the city appealed to the supreme court.
The question presented by the appeal is the validity of that part of ordinance 3208, called the "Sign Ordinance," which forbids any person from engaging in the business of painting, placing, erecting or maintaining advertising signs without first procuring from the city an annual license and paying therefor a fee of $ 10.
The demurrer assails the license feature of the sign ordinance on the grounds, among...
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