City of Portland v. Yates

199 P. 184, 102 Or. 513, 1921 Ore. LEXIS 203

Opinions

BEAN, J.

It is contended on behalf of defendant in effect that the sign in question was erected under a permit from the city at considerable expense with the implied understanding that it could be maintained during its natural life; that the defendant and the city thereby assumed contractual relations; and that the sign not being detrimental to the city, or any of its people, should not be condemned without compensation therefor. It is shown on behalf of defendant : First, that the sign was erected under an express permit from the city authorities; second, there was no reservation or limitation as to time of the license granted; third, the cost of the sign was of a substantial amount; fourth, the ordinary life of the sign was approximately twenty years; fifth, the sign was securely hung and was in no way an object of inconvenience to the public, and in no way interfered with the personal or property rights of any person, or the welfare of the people.

It is submitted on behalf of the city as follows: The sign was constructed under the provisions of Ordinance No. 30,332. On July 3, 1918, the common council enacted Ordinance No. 34,278, providing for a full and complete regulation of the installation, erection and maintenance of signs in and over the streets of the city, setting out the ordinance in full. Subdivisions 61 and 62, Section 64, of the charter of the City of Portland confer upon the council the power to regulate, restrict and prevent obstructions in the public streets and on the sidewalks; and to regulate the use of the streets and sidewalks for the use of signs: Laws of Oregon 1903, p. 3, and acts amendatory thereof. A mere license to use a street is revocable by a municipality in the exercise of its legislative discretion. Pursuant to this "rule it is proper to revoke licenses to use sidewalks, to maintain awnings or other obstructions: 28 Cyc. 890. The city further submits that, to forbid the use of property for purposes detrimental to the public welfare is not a taking of property within the meaning of the fourteenth amendment to the federal Constitution, citing: Freund’s Police Power, §§ 513, 516; Mugler v. Kansas, 123 U. S. 623 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Rose’s U. S. Notes); Powell v. Pennsylvania, 127 U. S. 678 (32 L. Ed. 253, 8 Sup. Ct. Rep. 992, 1257); State v. Griffin, 69 N. H. 1 (39 Atl. 262, 76 Am. St. Rep, 139, 41 L. R. A. 177, 179, 181); 27 Harvard Law Beview, 665. Counsel for city state in their brief:

“The sign is used by the appellant in advertising his private business. The permit is in no sense a franchise. The sign is not used for a public purpose. No citizen has a right to use the streets or the sidewalks for the promotion of his private business to the exclusion of future public regulation. His use for private purposes may be prohibited, or regulated, as the municipality may deem best for the good of the public. The council of a municipality may permit the use of private signs on sidewalks, or permit signs to be erected, which project out and over the sidewalk, to-day, and yet, in a year from now, experience may demonstrate that such regulations are entirely improper and change such regulations to the extent of even requiring all signs that project over the sidewalk to be removed.”

1, 2. It is beyond controversy that a city has ample authority to remove from the streets and thoroughfares, every obstruction or impediment to their free use as such by the public, unless legalized by the authority of law. The power to remove includes the power to prevent by such reasonable regulations as do not conflict with any of the provisions of the federal or state Constitutions, charters, or general laws: McQuillin on Municipal Ordinances, § 460; Philadelphia v. Philadelphia & R. R. R. Co., 58 Pa. St. 253, 263. Ordinances and by-laws intended to accomplish the purpose of securing a free and uninterrupted passage through streets situated in a populous neighborhood, by restraining and regulating erections over a portion of the traveled way, are clearly within the legitimate scope of the power confided to cities and towns: McQuillin on Ordinances, § 461.

As suggested in the brief of counsel for. the city, which we here quote, in a year it may be demonstrated by experience that such regulations are “entirely improper.”

“It has been held,” as stated in 3 McQuillin on Municipal Corporations, Section 1319, “that if the municipality has a right to grant permission to use a street for a certain purpose, and it does so, it cannot revoke the license without good cause or granting compensation therefor. But in order to make a license irrevocable at will it would seem that there should be something of a contraetual_nature existing between the licensor and the licensee.”

See, also, 3 Dillon on Municipal Corporations (5 ed.), Section 1186, in the note to which we find:

“A city which has power by statute to remove nuisances, to prohibit and prevent encroachments on streets and sidewalks, and to regulate the erection of awnings, has no power to remove an awning over a sidewalk which is a safe structure and does not materially interfere with the free use and enjoyment of the sidewalk by the public: Hisey v. Mexico, 61 Mo. App. 248.”

Spencer v. Andrew, 82 Iowa, 14 (47 N. W. 1007, 12 L. R. A. 115); City Council v. Burum, 93 Ga. 68 (19 S. E. 820, 26 L. R. A. 340). We learn in effect from the case of Dobbins v. Los Angeles, 195 U. S. 223 (49 L. Ed. 169, 25 Sup. Ct. Rep. 118), that while every intendment is to be made in favor of the lawfulness of the exercise of municipal power making regulations to promote the public health, municipal by-laws and ordinances and every legislative enactment undertaking to regulate useful business enterprises are the subject of investigation by the courts with a view of determining whether the law, or ordinance, is a lawful exercise of the police power, or whether there has been an unwarranted and arbitrary interference with constitutional rights to use and enjoy property. The right to exercise the police power is a continuing one, and a business lawful today may in the future become a nuisance to the public welfare and be required to yield to the public good. If an ordinance lawful on its face and apparently fair in its terms is enforced in such a manner as to work a discrimination against persons for no lawful reason, such exercise of power will be invalidated by the courts. In that case a municipal ordinance was adopted in September fixing the limit in which gas-works might be erected. Thereafter a permit was granted for the erection of a plant. In November an amendatory ordinance' was adopted by which the territory on which the works were in course of construction and purchased in reliance upon the September ordinance was excluded. There had been no change in the neighborhood or conditions. The ordinance was held to be void as an arbitrary and discriminatory exercise of the police power: See Ex parte Wygant, 39 Or. 429, (64 Pac. 867, 87 Am. St. Rep. 673, 54 L. R. A. 636); Spaulding v. McNary, 64 Or. 491 (130 Pac. 391, 1128).

In a note to the case of Thomas Cusack Co. v. City of Chicago, 267 Ill. 344 (108 N. E. 340, Ann. Cas. 1916C, 488, at p. 491), we find the general principle enunciated. The case and the note relate to billboards. It is there digested from the opinions that the recent cases support the rule that a municipality may, by virtue of its police power, enact and enforce reasonable regulations with reference to billboards and signs in order to preserve the health, safety, and good morals of its inhabitants, citing: Haskell v. Howard, 269 Ill. 550 (109 N. E. 992, L. R. A. 1916B, 893); Southern Leasing Co. v. Ludwig, 168 App. Div., 233 (153 N. Y. Supp. 545); People v. Ludwig, 172 App. Div. 71 (158 N. Y. Supp. 208); Horton v. Old Colony Bill Posting Co., 36 R. I. 507 (Ann. Cas. 1916A, 911, 90 Atl. 822); Cream City Bill Posting Co. v. Mikwaukee, 158 Wis. 86 (147 N. W. 25). In the latter case it is declared, among other things, that in order to support legislation of this kind a public need must exist and the act must at least have a tendency to support such need. The regulation of billboards, specifying the distance they should be placed from the sidewalk, was upheld upon the ground, inter alia, that they afforded a convenient hiding place for thieves and thugs.

A note in 3 McQuillin on Municipal Corporations, page 2245, reads:

“A license which has been acted upon cannot be revoked so as to deprive the licensee of the benefit of his expenditure. Barre v. Perry & Scribner, 82 Vt. 301, 309 (73 Atl. 574.)”

3. The sign in question in the present case having been erected pursuant to a permit issued by the municipal authorities was not illegal or a nuisance. The question for consideration is whether or not the change required by the new ordinance prescribing the size and specifications for such a sign tended to promote the public health, safety, morals, or welfare. The new ordinance requires a few inches difference in the size of the sign, a slight difference in the height from the sidewalk, and a change in the style. It is shown by the testimony that the sign in question was securely hung. It has been inspected annually. It in no way caused inconvenience to the public and did not interfere with the personal or property rights of any person. It cannot be conceived that a sign in conformity with the new ordinance would tend to promote the health of the inhabitants of the city any more than the old one. The safety of the public is not claimed to be in any way impaired by the sign as now constructed, and the new arrangements would not tend toward safety. It cannot be claimed that the new requirement is in the interest of the morals or general welfare of the public. It is not shown and cannot be comprehended that there has been any material change in the conditions and surroundings of the sign since its erection. While the cost of the sign, $350, was not great, it having been installed pursuant to a regular law of the city, the rule adopted at the time of its erection became, in a sense, a rule of property, and without some reasonable cause for the condemnation of the structure it should not be held to be unlawful.

As far as appears, the ordinance may well apply to the future construction of signs without being materially affected by the sign in question in its present condition. The later ordinance is designed for a municipal benefit, and is reasonable and valid as a regulation for the construction of signs after its enactment.

4. Every intendment should be made in favor of the validity of a municipal law, passed to promote the public welfare. Yet when it is shown that there is no reasonable basis for the adoption of the amendatory ordinance, and that the enforcement of the ordinance in the manner attempted in the present case would be in effect a deprivation of property unnecessarily and illegally, the court should so construe the enactment as to prevent a wrongful destruction of property. The ordinance should be upheld and enforced as far as it is reasonable, and not to the unreasonable encroachment of private rights of property. As to the sign in question which was already erected when the city law was enacted, and is in perfect condition, the ordinance is in the nature of an etc post facto law. It tends to impair the obligation of a contract.

The sign in question was not unlawful at the time it was erected. It has not been ma.de so by any valid enactment of the legislative department of the city.

The judgment of the Circuit Court is reversed and the case dismissed. Reversed and Case Dismissed.

Burnett, C. J., and Brown, J., concur. Johns, J., dissents.