Stringham v. Salt Lake City

• Decision Date: 17 January 1949
• Docket Number: 7162
• Citation: 201 P.2d 758,114 Utah 517
• Court: Utah Supreme Court
• Parties: STRINGHAM et al. v. SALT LAKE CITY

201 P.2d 758

114 Utah 517

STRINGHAM et al. v. SALT LAKE CITY

No. 7162

Supreme Court of Utah

January 17, 1949

Appeal from District Court, Third District, Salt Lake County; A H. Ellet, Judge.

Action for injunction by I. R. Stringham and others against Salt Lake City. From the judgment, the plaintiffs appeal.

Affirmed.

Richards & Bird, of Salt Lake City, for appellants.

E R. Christensen, Homer Holmgren and A. Pratt Kesler, all of Salt Lake City, for respondent.

Pratt Chief Justice. Wade and McDonough, JJ., concur. Wolfe, Justice (concurring in the result). Latimer, J., concurs with the views expressed in the opinion of Wolfe, J.

OPINION

Pratt, Chief Justice.

This appeal is from the dismissal by the lower court of injunctive proceedings initiated by plaintiffs to prevent the Salt Lake City Commissioners from compelling them to remove their advertising signs from that part of the public streets which lies between the sidewalk and the curb. The dismissal followed the sustaining of a demurrer to the complaint. The proceedings were initiated by plaintiffs on behalf of themselves and others similarly situated. Such facts as are involved in the case are found in the pleadings. The signs include many referring to motor courts.

Under and pursuant to Section 5720 of the Revised Ordinances of Salt Lake City, Utah, plaintiffs were granted permission to use that parking for the erection of their signs; but the City, as provided in the ordinance, reserved the right to "revoke, alter or modify" the licenses whenever the City Commissioners "deem it to be to the best interests" of the city. The ordinance authorized the city to remove as a nuisance all such structures maintained in violation of the ordinance. [quotations from the ordinance.]

On December 3, 1947, the City Commissioners published a notice that on Thursday, December 18, 1947, at 11 o'clock A. M. in Room 302, City and County Building, a public hearing would be held at the request of one J. E. Christie, and others, to amend this Section 5720 of the Ordinances, to prohibit signs of motor lodge operators upon city property. The meeting was held, and apparently the proposed amendment met with approval, as a motion was made and passed to notify Mr. Christie that the Bureau of Mechanical Inspections had been instructed to notify all owners of signs in such areas [the notification was not just to motor lodge owners] to remove their signs immediately. The motion also called for action to make the amended ordinance effective. Plaintiffs received the notices, but as yet the amended ordinance has not become effective. Plaintiffs filed their petition in the lower court to enjoin the enforcement of the ordinance as amended.

The amended ordinance, Section 5720, differs from the original in that such signs, sign posts, etc., as are in controversy here, are moved from the definition of "structures" to the definition of "obstructions", and the other terms of the ordinance prohibit entirely the placing, casting, depositing or permitting any "obstruction" in the street. The original ordinance authorized the licensing of the signs herein involved, as permissive "structures".

Plaintiffs (appellants) have based their arguments in favor of the injunction upon four points:

(1) No present order of the respondent requires that appellants remove their signs.

(2) Assuming that respondent made an order, then because the order was made without a finding or determination and in the absence of evidence of reason or need the order was void and cannot be deemed to be in the best interest of Salt Lake City.

(3) Assuming that no finding, determination, or consideration of evidence must precede issuance of an order of removal, then the order is still arbitrary, capricious, and void because not supported by any reason, logic, lawful classification, or legitimate objective.

(4) Section 5720, Revised Ordinances of Salt Lake City, 1944 is void because it contains no standard or rule to guide the Commissioners or the public in the matter of removal of licensed signs.

To properly consider these arguments, we should give some consideration to the statutes of our State authorizing action by the city in such matters.

Sec. 15-8-11, U. C. A. 1943:

"They may regulate the use of streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds, prevent and remove obstructions and encroachments thereon, and provide for the lighting, sprinkling and cleaning of the same." (Italics added.)

Sec. 15-8-23, U. C. A. 1943:

"They may regulate and control the use of sidewalks and all structures thereunder or thereover; and they may require the owner or occupant, or the agent of any owner or occupant, of property to remove all weeds and noxious vegetation from such property, and in front thereof to the curb line of the street, and to keep the sidewalks in front of such property free from litter, snow, ice and obstructions ." (Italics added.)

Sec. 15-8-26, U. C. A. 1943:

"They may regulate or prevent the use of streets, sidewalks, public buildings and grounds for signs, signposts, awnings, horse troughs or racks, or for posting handbills or advertisements." (Italics added.)

Sec. 15-8-27, U. C. A. 1943:

"They may regulate or prohibit the exhibition, distribution or carrying of placards or handbills on the streets, public grounds or sidewalks. (Italics added.)

We invite particular attention to the words "regulate", "prohibit", and "prevent", as used in these sections. It seems clear that Section 5720 of the city ordinances and the proposed amendment thereto fall within the power granted by these Code sections. The question becomes one of whether or not it properly applies those powers.

Point (1): We cannot give much weight to this point for the reason that, although the action of the City is indicative of an intention to amend the ordinance to exclude such signs as obstructions, they could, without, or before, such amendment, pursuant to the power reserved by the ordinance to do so, revoke those licenses in the interest of the city upon the ground that the structures had become obstructions. We are not dealing with a use right that citizens have in the street for traffic purposes, but are dealing with a use thereof prohibited except by special permit of the city, which permit is, by the ordinance in question, revocable if deemed to the best interests of the city to revoke. The resolution passed sufficiently indicates that the licenses were being revoked "immediately", as the notice to be given the owners was not contingent upon the ordinance as amended being made effective. In fact the amendment to the ordinance dealt with the future more than the past.

Point (2): As to findings and a reason for such action: In McQuillan on Municipal Corporations, 2nd Ed., Vol. 3, Sec. 1108, is found the following:

"Usually the power to license, regulate, etc., confers authority to provide reasonable terms and conditions under which the license business shall be conducted. The ordinance providing for the granting of the license may be revoked by the municipal authorities, and a license accepted under an ordinance providing that it may be revoked at pleasure or within the discretion of a specified municipal officer or board is binding on the licensee."

In the case of State ex rel. Bluemound Amusement Park v. Mayor of City of Milwaukee, 207 Wis. 199, 240 N.W. 847, 849, 79 A. L. R. 281, the court cited McQuillan on this point, and arrived at the following rule as governing the facts of that particular case:

"* * * by virtue of the very terms of the ordinance under which relator claims the privilege of continuing to conduct an exhibition, the license, which he obtained, was subject to revocation for any reason which was stated in that ordinance. The only authority for the issuance of the license was the ordinance and, in obtaining and accepting a license under its provisions, the relator was bound by, and his license was subject to, the conditions as to revocation, which were prescribed by that ordinance. Consequently, when the relator obtained his license from the mayor, who, under the very terms of the ordinance, could grant or refuse such license, as seemed best to him for the good order of the city, the license thus obtained was subject to the power expressly reserved by ordinance for the revocation of such license, whenever the mayor considered it necessary or expedient for the good order of the city. * * *."

The phrase "whenever said board shall deem it to be in the best interests of such city" found in Section 5720, is the authority under which the Board of Commissioners may act to revoke the present licenses, and the standard with which they must measure the necessity for such action. When "deem" is used in the ordinance it has the meaning of consider, judge, decide, or conclude (Webster), and the instruction to the Bureau of Mechanical Inspections to notify owners to remove their signs and the resolution to make the amendment to Section 5720 effective, indicate that the Board of Commissioners have considered, judged, decided, concluded, (deemed) it necessary. The presumption is that the City acted in good faith in the matter.

In paragraph 8 of the appellants' complaint they admit that the Board of Commissioners have "long considered" the advisability of withdrawing such licenses. The Board has concluded that such a move should be accomplished. In paragraph 2 of the proposed amended ordinance they recite that it is necessary to the "peace, health and safety of the public". Such a necessity is for the best interests of the City. The resolution passed, besides indicating a revocation of the license, approves the ordinance as amended -- approves all parts thereof including ...