People ex rel. M. Wineburgh Advertising Co. v. Murphy

Forster v. Scott, 136 N. Y. 577 , 32 N. E. 976 , 18 L. R. A. 543 . Not only does the ordinance tend to deprive the owner of the free enjoyment of his property, but, in the present case at least, that deprivation will result in substantial loss; for the relator has contracted to pay the owner a yearly rental of $400 for the privilege of erecting and maintaining the projected sky sign. Since the ordinance provides for the payment of no compensation to the owner, it is clearly unconstitutional in the particulars above referred to, unless it can be justified, as the respondent attempts to justify it, as a valid exercise of the police power of the state. As was recently said by the Court of Appeals, the existence of the police power of the state is not to be denied, but its limitations are difficult of accurate demarcation. Wright v. Hart, 182 N. Y. 330 , 75 N. E. 404 , 2 L. R. A. (N. S.) 338 .

There are certain general and well-settled rules however which, if observed, will greatly aid in determining whether or not the police powér of the state has been exceeded in any particular case:

“The power must be exercised subject to the provisions of both the federal and state Constitutions, and the laws passed in the exercise of such power must tend, in a degree that is perceptible and clear, toward the preservative of the public safety, or the lives, health, and morals of our inhabitants, or the welfare of the community. But the Legislature cannot arbitrarily infringe upon the liberty or property rights of any person living under the Constitution ; nor prevent him from adopting and following any profession, trade, or industrial pursuit, not injurious to the community, that he may see fit; nor prevent him from making contracts with reference thereto. To justify the state in interposing its authority in behalf of the public, it must appear that the interests of the public generally, as distinguished from those of a particular class, require such interference, and that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and finnecessary restrictions upon lawful occupations. The legislative determination as to what is a proper exercise of the police power is subject to the supervision of the court, and in determining the validity of an act it is its duty to consider, not only what has been done under the law in a particular instance, but what may be done under and by virtue of its authority.” Frank L. Fisher Co. v. Woods, 187 N. Y. 90 , 79 N. E. 836 , 12 L. R. A. (N. S.) 707 .

This epitome of the rules surrounding and limiting the exercise of the police power finds support in a great number of cases in the courts of this and other states and of the United States. As we took occasion to say in City of New York v. Weinburgh Adv. Co., 122 App. Div. 748 , 107 N. Y. Supp. 478 :

“To justify an act or ordinance which in any degree interferes with the liberty of the individual, or with the full enjoyment by him of his property, it must appear by reasonable intendment that it is calculated, intended, convenient, and appropriate to conserve the public health, welfare, comfort, or morals; and, while it lies primarily within the discretion of the enacting body to determine what laws are appropriate and proper for that purpose, yet the duty remains in the courts, when called upon, to scrutinize the measures sought to be enforced, to see whether they really fail within the limitations of the police power. Matter of Jacobs, 98 N. Y. 98 , 50 Am. Rep. 636 .”

In considering whether the ordinance now under discussion falls within these rules, it is pertinent to note two features of it which serve to distinguish it from the ordinances sustained in other cases in this state. In the first place, it is not directed against structures generally

placed upon the roofs of buildings, nor even against structures of a particular kind or constructed in a particular manner or of specified materials. The legality or illegality of a structure upon the roof of a building is not made dependent upon the nature of the structure itself, but upon the use to which it is to be put, so that a structure of precisely the size and character of that proposed to be erected by the relator would be perfectly lawful, but for the fact that it is proposed to display thereon "a letter, word, model, sign, device or representation in the nature of an advertisement.” As was said by the Supreme Court of New Jersey, forbidding the erection in certain localities of signs and bill boards, but not fences, the very fact that the prohibition in the ordinance is not directed against the structure, but against its use for a particular purpose, suggests “that some consideration other than public safety led to its passage.” City of Passaic v. Patterson Bill Board Adv. & Sign Painting Co., 72 N. J. Law, 285 , 62 Atl. 267 , 111 Am. St. Rep. 676 .

The second notable feature of the ordinance is that it absolutely prohibits, under any consideration whatever, or subject to any conditions, the erection of a sky sign exceeding nine feet in height-above the cornice or front wall. This is absolute prohibition, and not merely regulation, and markedly differentiates the ordinance now under consideration from those sustained in this state by the authorities on which the respondent mainly relies. City of Rochester v. West, 164 N. Y. 510 , 58 N. E. 673 , 53 L. R. A. 548 , 79 Am. St. Rep. 659 ; Id., 29 App. Div. 125 , 51 N. Y. Supp. 482 ; Gunning System v. City of Buffalo, 75 App. Div. 31 , 77 N. Y. Supp. 987 ; Whitmier & Filbrick Co. v. City of Buffalo (C. C.) 118 Fed. 773 . In the Rochester Case the ordinance upheld was not prohibitive of bill boards more than six feet in height. It permitted them, up to that height, to be erected without any permit "at all, but provided that bill boards exceeding that height might not be erected “without the permission of the common council,” and the ordinance prescribed the procedure to be followed in applying for such permission. The complaint against the defendant in that case was, not that he erected a bill board more than six feet high, but that he did so without having applied for and obtained the consent of the common council. In the two cases arising in the city of Buffalo, the ordinance did not prohibit the erection of bill boards over seven feet high, but prescribed that over that height they could only be erected with the permission of the common council. See report of the case in Gunning System v. City of Buffalo, 62 App. Div. 497 , 71 N. Y. Supp. 155 , where the ordinance is set forth in full. If the present ordinance had stopped with the provision that no sky sign should be erected unless plans therefor were submitted and approved and a permit issued, it would fall within the rule laid down in the foregoing cases. Its vice is that it fixes an arbitrary height, and absolutely forbids the erection of any sky sign exceeding that height. This is purely arbitrary, because no man can say that height alone determines the safety of the structure, or that a sky sign nine feet high will be safe, and one six inches higher must of necessity be unsafe, no matter how carefully and strongly built and braced.

The learned corporation counsel has been unable to refer us to a single case, in any jurisdiction, wherein so drastic and prohibitory an ordinance has been upheld. On the other hand, there are numerous-decisions in other jurisdictions in which prohibitive ordinances and statutes have been condemned. City of Chicago v. Gunning System, 214 Ill. 628 , 73 N. E. 1035 , 70 L. R. A. 230 ; Commonwealth v. Boston Adv. Co., 188 Mass. 348 , 74 N. E. 601 , 69 L. R. A. 817 , 108 Am. St. Rep. 494 ; Bill Posting Sign Co. v. Atlantic City, 71 N. J. Law, 72 , 58 Atl. 342 ; Passaic v. Paterson Bill Posting, etc., Co., 72 N. J. Law, 285 , 62 Atl. 267 , 111 Am. St. Rep. 676 ; Crawford v. City of Topeka, 51 Kan. 756 , 33 Pac. 476 , 20 L. R. A. 692 , 37 Am. St. Rep. 323 ; Western Co. v. Knickerbocker, 103 Cal. 111 , 37 Pac. 192 ; Bryan v. City of Chester, 212 Pa. 259 , 61 Atl. 894 , 108 Am. St. Rep. 870 .

We think, that upon reason and authority the ordinance relied upon by respondent, in so far as it arbitrarily and absolutely forbids the erection of any sky sign over nine feet in height above the front wall or cornice, cannot be upheld as a valid exercise of the police power; that its effect is to deprive the owner of real estate of the full and complete enjoyment of his property without compensation; and that it does not appear that the interest of the public generally requires such curtailment of the owner’s property rights, nor is it perceptible and clear that the ordinance in the particulars referred to is calculated, intended, convenient, and appropriate to conserve the public health, welfare, comfort, or morals. It follows that the order appealed from must be reversed, and the motion granted, directing that a peremptory mandamus issue to the respondent, commanding him to examine the plan and application filed by the relator and described in its petition, with reference to the material to be used and the method of construction thereof, and as to the safety thereof, and, if he shall find that the.said structure is to be built of proper materials and in a proper manner, and that the proposed structure is safe and secure, to approve said application and issue a permit thereon. Settle order on notice.

INGRAHAM and McLAUGHLIN, JJ., concur. CLARKE and HOUGHTON, JJ., dissent.