Bryan v. City of Chester

61 A. 894, 212 Pa. 259, 1905 Pa. LEXIS 596

• Court: Supreme Court of Pennsylvania
• Decided: May 24, 1905
• Docket: Appeal, No. 379
• Status: Published

Opinion

Opinion by

Mb. Justice Brown,

Under the police powers of a municipality it may prohibit the erection of insecure billboards within its limits, prevent the exhibition from secure ones of-immoral or indecent advertisements or pictures and protect the community from any actual nuisance resulting from the use of them. But this is not what the city of Chester attempted to do by its ordinance of December 1, 1903.

There is a recital in the preamble of the ordinance that, in the sense of councils, showbills and advertising boards are unsightly, and very often are either a nuisance or create one; and thereupon those bodies ordained that in the future no additional boards shall be erected or constructed within tbe city limits, but permitting those already constructed and used to continue for the purpose of advertising. To say nothing of this inconsistent discrimination, the ordinance means that though, as a matter of fact, a billboard may not be unsightly to the eyes of any other person than those of the members of councils, and may not be a nuisance nor create one, and the advertisements on it may neither shock nor offend public decency, an owner of private property cannot erect one on his land. This is a gross attempt at interference with the lawful use of private property, and the learned judge below properly declared the ordinance void in concisely saying: “ I know of no principle upon which it can be sustained. It is not a police regulation, nor for the preservation of health or the abatement or prevention of a nuisance, nor is it a fence or fire regulation.” To this we do not feel called upon to add anything, contenting ourselves with quoting the following from Crawford v. City of Topeka, 51 Kansas, 756: “ All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health or comfort of the public; but a limitation without reason or necessity cannot be enforced. In what way can the erection of a safe structure for advertising purposes, near the front of a lot, endanger public safety any more than a like structure for some other lawful purpose?.....Al-

though the police power is a broad one', it is not without limitation, and a secure structure which is not an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat, and then prohibited : Yates v. Milwaukee, 10 Wall. 497; 1 Dill, on Munc. Corp. sec. 374. It is doubtless within the power of .the city to prohibit the erection of insecure billboards or other structures, require the o'wners to maintain them in a secure condition, and to provide for their removal at the expense of the owners in case they become dangerous. Perhaps regulations may be made with reference to the manner of construction so as to insure safety, but the prohibition of the erection of structures upon the lot line, however safe they might be, would be an unwarranted invasion of private right.”

Under the facts set forth in the bill there can be no doubt that this proceeding was properly instituted by the appellee. The decree of the court overruling the demurrer and directing the injunction to issue, is affirmed at appellants’ costs.