Brayton v. City of Anchorage

Alaska Supreme Court

Brayton v. City of Anchorage

386 P.2d 832, 1963 Alas. LEXIS 165

CourtAlaska Supreme Court

DecidedNovember 19, 1963

Docket219

StatusPublished

Cited by12 cases

This text of 386 P.2d 832 (Brayton v. City of Anchorage) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brayton v. City of Anchorage, 386 P.2d 832, 1963 Alas. LEXIS 165 (Ala. 1963).

Pincite

Opinions

NESBETT, Chief Justice.

While a candidate for state office in June of 1960 appellant attached approximately fifty political posters to telephone utility poles belonging to' appellee city. This was a violation of a City of Anchorage Ordinance.¹

Appellee caused the posters to be removed and commenced suit in the district magistrate court to recover the cost of removal in the sum of $43.50.

[833]*833Appellant appealed to the superior court from a judgment in favor of the appellee. The superior court affirmed the judgment of the magistrate court and appeal was taken to this court.

Appellant’s first point is that the city had no standing to commence the action, because a municipal corporation is a creature of the legislature, has no powers not expressly or impliedly conferred upon it by the legislature, and that that body had not conferred on municipal corporations the power to commence a suit of th;s nature.

At the time the action arose a municipal corporation was permitted by statute to maintain an action to recover damages for an injury to its corporate rights or property.² The posting of signs on city property can be an injury to corporate rights or property. In the case before us the magistrate found that the posters constituted a safety hazard to telephone linemen required to climb the poles. It seems clear enough that under these facts appellee municipal corporation did have the power to commence the action. Not mentioned in the briefs of either party is the fact that at the time the action arose appellee was a home rule city and therefore clothed with considerably broader powers than the usual municipal corporation in Alaska. Since this point has not been treated as an issue, we shall not attempt to define the extent of the power of a home rule city to maintain actions at law.³

The parties have devoted a considerable portion of their briefs to a discussion of whether recovery by the ap-pellee can be supported on the theory of contract or on waiver of the trespass and as a suit in assumpsit.

Our rules of Civil Procedure provide that there shall be only one form of actioi-*, known as a civil action,⁴ and that all of the rules shall be construed to secure the just, speedy and inexpensive determination of every action.⁵ This court has heretofore held that a party should be granted the relief to which he is entitled under the evidence, regardless of the theory of his pleadings.⁶

Here the evidence supported the magistrate’s finding that appellant had committed a trespass and that appellee was entitled to reimbursement for the cost of restoring the property to its original state.⁷ Appel-lee was entitled to the relief granted regardless of the theory upon which its claim for relief was based.

There is no merit to appellant’s argument that since violation of the ordinance was punishable as a misdemeanor, appellee was restricted to the commencement of a criminal action. The violation was a breach of the peace and dignity of the appellee city. Under the ordinance ap-pellee was empowered to prosecute appellant for the commission of a misdemeanor, but it was not obligated to do so. Appellant’s act was also a trespass. Therefore appellee had the legal right to prosecute a civil action for damages resulting from the trespass.⁸ The latter right does not spring from the ordinance in question. It [834]*834is. the common law right of every individual which had been extended to appellee municipal corporation by statute in Alaska.⁹

Appellant’s .last contention is that the City of Anchorage ordinance ¹⁰ is unconstitutional in that its enforcement violates his right to freedom of speech and of press as guaranteed under the First and Fourteenth Amendments to the United States Constitution.

It is true that the ordinance prohibits the type trespass committed by appellant. Its enforcement would prevent appellant from attaching his political posters to any city property. To that extent appellant’s right to freedom of speech and of press would be restricted. On the other hand, the United States Supreme Court has specifically recognized the right of a city to forbid trespasses in similar cases. In Schneider v. State¹¹ the court pointed out that a city cannot require all who wish to disseminate ideas to present them to municipal authorities who have the discretion to approve or disapprove dissemination, but may prohibit trespasses and otherwise reasonably regulate many of the common methods of exercising the right of freedom of press and speech such as distributing handbills, leaflets and canvassing. The judgment below is affirmed.

DIMOND, J., concurs.

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