Whitmier & Filbrick Co. v. City of Buffalo
Decision Date | 05 November 1902 |
Docket Number | 176. |
Citation | 118 F. 773 |
Parties | WHITMIER & FILBRICK CO. v. CITY OF BUFFALO et al. |
Court | U.S. District Court — Western District of New York |
Spaulding & Sullivan (Tracy C. Becker and A. S. Gilbert, of counsel) for complainant.
Charles L. Feldman, for defendants.
The question here presented for the decision of the court depends upon the validity and constitutionality of section 48 of chapter 4 of the ordinances of the city of Buffalo. If the section be void, its enforcement impairs the property rights of the complainant, which this court, sitting in equity, has the power to protect. The jurisdiction of the court is invoked through diversity of citizenship of the parties. The restrictive section of the ordinance relied on by the defendants reads as follows:
It is claimed by the defendants that the enactment of the ordinance by the common council of the city of Buffalo is justified by the city charter (Laws 1891, c. 105, Sec. 17), by which it is provided:
Notice to remove the billboards required by the ordinance was duly served upon complainant corporation, and upon its failure to comply the fire commissioners proceeded to remove them. It is conceded that the billboards erected by the complainant are more than seven feet in height, and that they were erected without the permission of the common council of the city of Buffalo, nor is it disputed that the city of Buffalo had the power to enact a restrictive ordinance. The counsel for complainant contends that the provisions of the ordinance by which a summary removal or destruction of the billboards is affected is void and unconstitutional. This question was recently twice considered by the appellate division of the supreme court, Fourth department, in the case of Gunning System v. City of Buffalo, 62 A.D. 498, 71 N.Y.S. 155; Id., 75 A.D. 31, 77 N.Y.S. 987. In the Gunning Case, an action similar to this brought against the city in the state court by a corporation maintaining similar structure, an injunction pendente lite was denied by the trial court. The appellate court declined to pass upon the validity of the ordinance or the existence of the nuisance upon the application for an injunction in limine, and such an injunction was issued. The case was then tried out upon the merits, and the validity of the ordinance judicially determined. The court then held that the structures were illegal on two grounds: First, that the ordinance designating them as nuisances was legal and valid; and, secondly, that irrespective of this ordinance, the board structures brought to the court's attention were common-law nuisances per se. It was further decided that the legislature had the power to delegate to the municipality the right to declare the structures condemned illegal, and to abate the same, and therefore the ordinance under consideration was legal and valid. The decision in the case of City of Rochester v. West, 164 N.Y. 510, 58 N.E. 673, 53 L.R.A. 548, 79 Am.St.Rep. 659, is cited as an authority for holding the ordinance constitutional. On appeal from the decision of the trial court, the decision of the lower court was affirmed on the ground that the action of the common council in enacting the ordinance in question was for the general welfare and good government of the city and its inhabitants. The appellate court in the Gunning System decision (75 A.D. 32, 77 N.Y.S. 987) did not deem it necessary to review the evidence, in view of the decision of the court of appeals in the case of City of Rochester v. West, supra, and sustained the ruling of the trial court that the ordinance was authorized by the charter of the city of Buffalo. In the West Case a like ordinance of the city of Rochester was reviewed. No provision for destruction of the billboards, however, was included in the Rochester enactment. The court of appeals passed upon two questions certified to it by the lower court. The second...
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Kansas City Gunning Advertising Co. v. Kansas City
...ordinance might be valid and reasonable as to all future constructions, yet invalid and unreasonable when applied retroactively. Whitmeir v. Buffalo, 118 F. 773. (7) This is invalid even as to future constructions. It is discriminatory. It is leveled against the business and not the boards.......
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St. Louis Gunning Advertising Co. v. City of St. Louis
...v. Boston Disinfecting Co., 144 Mass. 523, 11 N.E. 929; See, also, Talbot v. Hudson, 16 Gray 417, 423.]" And in the case of Whitmier v. City of Buffalo, 118 F. 773, decided by the circuit court of the United States of Western District of New York, was involved the validity of the same statu......
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General Outdoor Advertising Company v. City of Indianapolis
... ... such laws and ordinances retroactive, and, in Whitmier & Filbrick Co. v. City of Buffalo (1902), 118 F ... 773, it was said: "Such structures are not ... ...
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Stoner McCray System v. City of Des Moines
...case, it is not the usual legislative practice to make such laws and ordinances retroactive, and in the case of Whitmier & Filbrick Co. v. Buffalo, C.C.1902, 118 F. 773, 776, we find the following: 'Such structures are not per se illegal by reason of this ordinance, which has been declared ......