City of Chicago v. Gunning System

114 Ill. App. 377, 1904 Ill. App. LEXIS 427

• Court: Appellate Court of Illinois
• Decided: June 9, 1904
• Docket: Gen. No. 11,696
• Status: Published

Opinions

Per Curiam.

The decree entered herein must be sustained for the following reasons:

First. The power of the city council to pass such an ordinance is doubtful. Since municipal corporations exercise delegated and limited powers only, no presumptions can be indulged in as to the validity of their acts. When questioned and the power is not clear, the right to pass a particular ordinance must be shown by the city. Village v. Doherty, 30 Ill. App. 662; Schott v. People, 89 Ill. 197. The only express power in the Cities and Villages Act, relating to signs, is clause 17 of section 1 of article 5, by which the city can regulate and prevent the use of signs on the streets and public places of the city. Here is a specific provision relating to signs. The power thus expressly granted cannot be added to by general language found elsewhere in the act. If it be said that it is.doubtful if bill-boards are included in the word “ signs ” as used in this clause, that doubt compels us to affirm the decree of the learned chancellor in so far as it is based upon this clause. If the power to pass the ordinance of June, 1900, is given anywhere in that act, it is found in clause 66 of section 1, which reads : “ To regulate the police of the city, or village, and pass and enforce all necessary police ordinances.” It is admitted that this clause confers power beyond the mere creation and regulation of the police force; it may extend to and embrace a subject-matter of police regulation, under the general police power of the state. McPherson v. Village of Chebanse, 114 Ill. 49. The true purpose of the police power is the preservation of the health, the morals, and the safety of the community. Munn v. The People, 69 Ill. 103. An ordinance based upon this power must appear to be adapted to that end; it cannot invade the rights of person or of property under the guise of a mere police regulation, when it is not such in fact. Ritchie v. People, 155 Ill. 110. When an ordinance based upon the police power is brought to the view of a court, it is the duty of that court to determine whether or not it is promotive of the health, the morals or the safety of the people (Ruhstrat v. The People, 185 Ill. 142); and if it does not appear affirmatively that this is its effect, the court is bound to declare that such ordinance is void because it is an attempt to exercise a power not granted. T. W. & W. Railway Co. v. Jacksonville, 67 Ill. 40.

It appears that this ordinance is directed against signs and bill-boards erected upon private property. It includes and prohibits all such signs and bill-boards, regardless of their stability and location, other than such as are built and placed in obedience to its provisions. The lot owner has the right to erect upon his premises such buildings and other structures as he may please, providing that in so doing he does not imperil others. That right cannot be interfered with unless such peril be shown. It is not in the power of the city council to declare a safe structure erected within the lines of private property to be a nuisance as a structure, and then to cause its removal; nor under like circumstances can the city, by ordinance or otherwise, prohibit the building of a like structure. Yates v. Milwaukee, 10 Wall. 497; 1 Dillon Mun. Corps. 374; Crawford v. Topeka, 51 Kans. 756. To justify interference with the enjovment of private property two facts must be established: first, that the property, either per se or in the manner of using it, is a nuisance; and, second, that the interference does not extend beyond what is necessary to correct the evil. Tiedeman’s Dims., sec. 122g. In short, the power is ■ confined to the enforcement in detail of the maxim sie utere tuo, ut alien-urn non Icelas.

" Second. Section 5 of the ordinance provides that all owners of signs or bill-boards erected before the passage- of this ordinance, which signs or bill-boards have a superficial area exceeding 100 square feet, or which are of greater height than ten feet above the surface of the ground, (other than such signs or bill-boards as are painted or erected upon buildings,) shall pay an annual license of fifty cents per square foot, and in case such license is not paid such signs or bill-boards shall be torn down. This section is not regulative, but is prohibitive. It is shown that appellee has in the city 420,000 square feet in superficial area of bill-boards, standing upon private property, from which it realizes a gross income of $96,000, and a net income of $14,000. The license required by this section under penalty of their demolition amounts to $210,000 per year, a sum double the gross yearly income. This statement shows that what is intended is not regulation, but is destruction; that the entire ordinance was passed in order to destroy the business of appellee and to wreck its property. Further, this license 'fee is arbitrarily placed upon signs and bill-boards presumably erected lawfully, in a substantial, safe and workmanlike manner, and with due regard to the safety of the public. The purpose to be accomplished by an ordinance must always be considered by the court in determining its validity. Ligare v. Chicago, 139 Ill. 46; Smith v. McDowell, 148 Ill. 60. If the business be not in itself unlawful, an ordinance requiring those who follow that business to take out a license which in effect amounts to a prohibition, is invalid. Chicago v. Ferris Wheel Co., 60 Ill. App. 384. Where the city has no power to suppress or to prohibit a business in direct terms, it cannot reach the same result indirectly by imposing unreasonable burdens upon those who follow that business. Carrollton v. Bazzette, 159 Ill. 284. Laws which interfere with the personal liberty of the citizen to follow what lawful occupation he° pleases, or to erect upon his real estate such safe structures as he may see lit, by compelling him to take out a license to follow the one or to construct the other, are invalid. Chicago v. Banker, 112 Ill. App. 94, and cases therein cited.

This ordinance is entire, each part having a general influence over the rest, and as section 5 is invalid, the entire ordinance is void. 1 Dill. Mun. Corp., sec. 421, 4th ed. This rule is more clearly stated in Cooley on Cons. Lims., pp. 178-9 : “If a statute attempts to accomplish two or more objects, and it is void as to one, it may still be in every respect complete and valid as to the other; but if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fall, unless sufficient remains to effect the object without the aid of the invalid portion; and if they are so mutually connected with and dependent on each other as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then, if some1 parts are unconstitutional, all the provisions which are thus dependent,, conditional or connected, must fall with them.”

Third. The ordinance is unreasonable. “An ordinance must be reasonable, and if it is unreasonable, unjust and oppressive, the courts will hold it invalid and void.” McFarlane v. Chicago, 185 Ill. 252. Section 1 of the ordinance declares that no sign or bill-board shall be located nearer than twenty-five feet back of the front line of the lot whereon the same is erected, thus depriving the property owner of the right to use a part of his lot for a legitimate purpose. This restriction does not tend to provide for the public safety or to promote the public morals; nor does it fall within any of the objects to conserve which the police power is conferred upon municipal corporations. If the sign or bill-board stood upon the front line of the lot and was unsafe, it might endanger the passer-by, and it may be that the common council has the power to order it to •be placed far enough back from the street to obviate that danger. It is common knowledge that such a structure, when it falls over, extends no further from its base than its height. The master found, and the trial court approved the finding, that the limitation that a bill-board which is ten feet high shall not be erected nearer the street than twenty-five feet, so far exceeds the distance necessary to protect the public from danger as to be unreasonable; and we aoree with that finding. The same section limits the size of such bill-boards to 100 square feet. This limits the length of a bill-board to about fourteen feet, notwithstanding it may be placed hundreds of feet away from the street. Such a restriction upon the liberty of the lot owner in the use of his property is unreasonable and oppressive. The limitation' as to the height of such bill-boards to ten feet above the level of the adjoining streets, and that the base of the bill-board shall be at least three feet above the same level, finds but little support in the evidence, and is, in our opinion, unreasonable.

Section 4 declares that no sign or bill-board shall be erected upon or along any boulevard or pleasure driveway, or in any street where three-quarters of the buildings are devoted to residence purposes only, unless the consent of three-quarters of the residents and property owners on both sides of the street be first obtained. This section puts the use of private property for legitimate purposes at the mercy of the caprice of neighboring owners, and also discriminates between the owners of real estate in different parts of the city. “ Ordinances must be of uniform and general operation within the municipal limits; any unnecessary discrimination between persons, classes or places, renders them invalid.” Hibbard v. Chicago, 59 Ill. App. 470. The- evidence does not show that bill-boards placed near boulevards or pleasure driveways are more dangerous to the public than are those erected near other highways. More people pass_ along the ordinary street than travel over the boulevards or pleasure drives. An ordinance is unreasonable in requiring the consent of neighboring owners and residents before permitting the use of private property for a lawful purpose. St. Louis v. Russell, 116 Mo. 248. To the same effect are City of Newton v. Belger, 143 Mass. 598; Ex parte Sing Lee, 96 Cal. 354; Yick Wo v. Hopkins, 118 U. S. 356-374, and Barbier v. Connolly, 113 U. S. 27. By the common law the owner of real estate may erect upon this lot line such a fence as he pleases, providing it is built in a safe, substantial and workmanlike manner; and he may permit another to paint thereon any sign which is not immoral nor a disturbance of the public peace in its tendencies. It will not do to say that the fence without the painting is an innocent object, but that the moment the sign is painted upon it it becomes amenable to the law; for that would be legislating against the advertisement and not against the surface upon which it is placed.

Believing that the ordinance in question is beyond the power granted to the city council, that taken as a whole it is invalid, and that it is unreasonable in many of its provisions, the'decree of the Superior Court is affirmed.

Affirmed.