State v. . Higgs , 126 N.C. 1014 ( 1900 )

Verdict guilty. Defendant was fined $50, and appealed. (1015) The city ordinance, evidence of the State (defendant introduced none), and contentions pro and con fully appear in the opinion of Furches,J., and in the dissenting opinion of Clark, J. This is a prosecution commenced before the mayor of the city of Raleigh for an alleged violation of an ordinance of the city. The ordinance under which the defendant is indicted is as follows:

"SECTION 1. That no sign shall be suspended or projected over the sidewalks in the city of Raleigh.

"SEC. 2. That all signs that are now projected or that are suspended over the sidewalks of the city of Raleigh shall be removed, together with the rods and poles used for suspending or swinging said signs, by 15 August, 1899.

"SEC. 3. Any person or firm violating the provisions of this ordinance or failing to comply with the provisions of the same, shall, upon conviction before the Mayor, be fined fifty dollars, or imprisoned thirty days."

The Legislature of 1899, Private Laws, ch. 153, enacted a new charter for the city of Raleigh, and our attention is called to the following provisions therein for the purpose of showing the power of the city, which, the State contends, authorized the charge of the court and the verdict of the jury in finding the defendant guilty.

Sections of the charter:

"SEC. 33. That it shall be the duty of the aldermen to attend all the meetings of the board unless unavoidably prevented from doing so, and when convened, a majority of the board shall have power to make (1016) and to provide for the execution of such ordinances, by-laws, rules and regulations, and such fines, penalties and forfeitures for their violation as may be authorized by this act, consistent with the laws of the land and necessary for the proper government of the city:Provided, that no penalty prescribed by the board of aldermen for the violation of any of the provisions of this act, or of any ordinance, by-law, rule or regulation made in pursuance thereof shall exceed fifty dollars fine or thirty days imprisonment."

"SEC. 80. That all penalties imposed under the provisions of this act or of any ordinance, by-law or regulation of the city, unless herein otherwise provided, shall be recoverable in the name of the city of Raleigh before the mayor; and all such penalties incurred by any minor shall be recovered from the parent, guardian or master, as the case may be, of such minor."

"SEC. 34. That among the powers conferred on the board of aldermen are these: . . . Ascertain the location, increase, reduce and establish the width and grade, regulate the repairs and keep clear the streets, sidewalks and alleys of the city; extend, lay out, open, establish the width and grade, keep clean and maintain others; establish and regulate the public grounds, including Moore Square, Nash Square, and Pullen Park, have charge of, improve, adorn and maintain the same, and protect the shade trees of the city."

"SEC. 38. That they may require and compel the abatement of all nuisances within the city, or within one mile of the city limits, at the expense of the person causing the same, or the owner or tenant of the ground whereon the same shall be. . . .

Subsection 6 of section 79 provides:

(1017) "(6) Any person . . . ; or who shall excavate, construct, build, use, keep or maintain any cellar, basement, area, passage, entrance or way under any sidewalk, or build, construct, keep, use or maintain any veranda, piazza, platform, building or stairway or other projection or construction upon or over any sidewalk in the city whereby the free and safe passage of persons may be hindered, delayed, obstructed, or in any way endangered, . . . without having first taken out a license therefor; . . . shall be guilty of a misdemeanor, and upon satisfactory proof before the mayor, shall be adjudged to pay for every such offense a fine not exceeding fifty dollars, or be imprisoned not exceeding thirty days."

The sections in the charter are not produced seriatim, but as they are presented in the brief and argument of counsel who represented the State.

Upon the trial the State introduced the charter and the ordinances of the city, and the following evidence:

The State then introduced Chief of Police Mullins, who testified that a written notice from the mayor to take down his sign was served on defendant before the beginning of this proceeding, which notice was put in evidence. That the sign was not taken down, and is still up. On cross-examination the witness stated that the sign was an electric sign, which spelled out Higgs's name by the passage of a current of electricity; that it was an ornament to the street, and did not interfere with passage or vision; it was at its lower end about fourteen feet above the sidewalk, projected four or four and a half feet from building, was twelve to fourteen feet long, about eighteen inches wide, made of plank, and apparently a very heavy one; was fastened at the top to a bar of railroad iron and at the bottom to a round bar of iron. The sign itself hung vertically, and he thought it was as practically secure as the (1018) house itself. Did not think there was any danger of falling or being blown down. Had never examined closely the fastenings to the bar of railroad iron. Witness identified the photograph of the sign, which was put in evidence, and which was taken before the lower swinging signs on the street were taken down. The sign which Higgs had swinging to the lower rod, as shown in the photograph, was taken down by him before this proceeding was started. The lower rod was also cut off at the end.

Witness said it was still common for porticoes or balconies, awnings and signs on awnings, and signs on the outer railing of balconies, and signs projecting a few inches over the sidewalks, to exist. There are many of them in the city. There are balconies in front of many buildings on Fayetteville street, projecting over sidewalk three to four feet. One over Yarborough House, Henry Building (with J. M. Broughton Co.'s sign on outer railing, also Foller, the tailor's), one over A. B. Stronach's, with his sign on outer railing. Many awnings in the city which cover the entire sidewalk — some of wood, some of cloth, some signs on cloth, as Berwanger's stretching clear across sidewalk, and some on wood, as W. B. Mann's, at edge or side of awning, and extending over street. Some other signs were allowed to sit on sidewalks, as Watts, the barber. A great many signs on the doorfacing, which project a few inches over the sidewalk, as R. B. Raney's, Raleigh Savings Bank, Boylan, Pearce Co., W. E. Jones, a member of the board of aldermen, Cross Linehan; Jones Powell have steps leading from Fayetteville street down into their cellar. On each side of cellar is an iron railing and till recently they had suspended on the railing an ice and coal sign.

W. H. King Co.'s drug store projects above some distance over (1019) sidewalk and a sign is painted on it, as shown from the Photograph. Y. M. C. A. building has steps in street.

W. Z. Blake, street commissioner was introduced by the State, and testified that he measured that morning the distance from the front wall of Higgs's store to center of street. It was 491/2 feet.

The State then introduced the charter of the city of Raleigh, as contained in chapter 153 of the Private Acts of 1899, and thereupon rested its case.

The defendant's counsel contended that the ordinance was void; that on the evidence he was the owner to the center of the street, subject to the easement of the public, and had the right to make the customary and proper use of his property; that he was discriminated against, and that the ordinance was unreasonable and arbitrary and oppressive; that the board of aldermen had no power to adopt it, especially in its form and to the extent they claimed, and that it was an attempt to create a criminal offense, which they had no power to do.

His Honor charged the jury that if they believed the evidence, they should find the defendant guilty. Verdict guilty. Defendant excepted and appealed from the judgment pronounced.

There was exception taken on the argument to the jurisdiction of the mayor of the city to try the case, if the defendant was guilty of a criminal offense, for the reason that he was given exclusive jurisdiction. It was also contended that the ordinance was void for uncertainty, for the reason that it gave the mayor the discretion to fine the defendant upon conviction fifty dollars, or to imprison him for thirty days. We do not think either of these objections can be sustained. Article IV., sec. 14, of the Constitution, expressly provides for the establishment of such courts for the trial of misdemeanors in cities and towns; and the charter of the city of Raleigh, section 79, subsec. 6, expressly constitutes the (1020) mayor a court for the trial of misdemeanors committed within the city, when the punishment does not exceed a fine of fifty dollars or imprisonment for thirty days. It would, therefore, seem that the mayor had jurisdiction, unless the ordinance is void, for the reason that it gives the mayor exclusive jurisdiction, and takes from justices of the peace their constitutional rights. But without discussing that question, we are of the opinion that it is not presented in this case, as it must be conceded that the mayor has a coordinate jurisdiction, if not the exclusive jurisdiction; and that is all that is necessary to be established to give him jurisdiction of this offense, if it be an offense. Section 3818 of the Code gives to mayors the jurisdiction of justices of the peace; therefore he had jurisdiction outside of the charter.

Neither do we think the ordinance is void for uncertainty in its penalty or punishment. The ordinance of the city limits the punishment to $50 fine or thirty days imprisonment; and section 3820 of the Code makes the violation of a city ordinance a misdemeanor, and limits the punishment to a fine not to exceed fifty dollars, or imprisonment not to exceed thirty days. This is the exact language of the Constitution, and therefore can not be unconstitutional, as applied to misdemeanors. It seems to us that it must follow that the ordinance is not void for uncertainty, and, if not void for uncertainty, its violation was a misdemeanor unless it was void for other reasons than for uncertainty in its punishment. But if it was void for any reason, it was not unlawful to refuse to obey it, and its violation was no criminal offense.

But the ordinance may not be void (and we do not say that it is) when properly construed, and the defendant still not be guilty. And it seems to us that it has not been properly construed in the trial of this case.

Whether the Legislature could in express terms authorize the (1021) city to require the defendant to take down this sign, by the passage of an ordinance, or be guilty of a criminal offense, we very much doubt. But it is not necessary that we should pass upon that question, as we do not consider that it has attempted to give the city authorities that power. And we therefore consider the question from that view of the case, as it must be admitted that they had no such right unless it is given them in the charter of the city.

A municipal corporation is a creature of the Legislature, and only has such powers as are expressly given it, or such as are incident to the powers expressly given and necessary to the execution of the express powers. It seems to be conceded that they had no express power to pass an ordinance requiring the defendant to take down this sign. And we do not mean to say by this that the city authorities undertook to pass a personal ordinance requiring the defendant to take down his sign, but to say they had no express authority to pass a general ordinance requiring all such signs as his (if there are others) to be taken down, the violation of which would be per se a misdemeanor.

But the State contends that the city had express authority to open and grade streets, and clear and keep clear the streets and sidewalks of all obstructions; that the city is the owner of the streets and sidewalks,cujus est solum ejus est usque ad caelum, and that the city authorities have the absolute right to remove any permanent fixture upon or over the streets or sidewalks; that they have the same rights of property over the sidewalks of the city that a private citizen has over his land; and, having this right, they have the right by the exercise of their arbitrary power to require the defendant to take down his sign.

The fallacies of these contentions are that the mayor and aldermen of the city of Raleigh do not own the streets and sidewalks; that (1022) while the fee may be in the city it is held in trust for the use and benefit of the public. And the mayor and aldermen are but the agents of the city to look after the condition of the streets and sidewalks for the use and benefit of the public, and they have no power arbitrarily to do anything which interferes with the right of the citizen that the public has not, and can not have any interest in.

But the defendant, besides his general interest which he has in common with the public generally, is an abutting owner to this street and sidewalk, and, in this way has a special property — an easement in his frontage upon the street. White v. R. R., 113 N.C. 612; Moose v.Carson, 104 N.C. 431; Yates v. Milwaukee, 10 Wall. (77 U.S.), 497.

This seemed to be conceded as a general proposition. But the State undertook to distinguish this case and take it out of the general rule, by alleging that the city of Raleigh was the owner in fee of the street, and, for this purpose has inserted in its brief the acts and ordinances locating the city of Raleigh. And while they might have been introduced on the trial (Dillon on Mun. Corp., sec. 83), they were not introduced, and we must be governed by the record. But lest it might be inferred that had they been introduced in evidence, that our judgment would have been for the State, we think it best to consider the case as if they had been introduced.

Had they been introduced, we are unable to see that this would have affected the status of the parties, or would have in any way affected the conclusion at which we have arrived.

We have assumed that the city was the owner in fee and sold to the defendant, or those under whom he claims, the lot he now occupies, abutting on Fayetteville Street, and, by this sale and purchase, the defendant acquired the right of an abutting landowner — an easement (1023) — which is more than that of the general public; but subject to the lawful government of the city, so far as it is necessary for the use and benefit of the public. The case of Moose v. Carson, supra, cited by the State to sustain its contention, we think sustains the position taken by the Court.

Then, was it necessary for the public benefit — for the public convenience, the public safety — that this sign should be removed? If it was, then the city authorities under their granted powers would have the right to remove it. This power would then be one of the powers incident to their express powers granted to them over streets and sidewalks of the city for the benefit of the public; while, on the other hand, the defendant had the right of an abutting owner — an easement — the right to use his frontage for the benefit of his property, as he pleased, in such a way as not to interfere with the rights of the general public, in safety, using the sidewalk for the purpose of traveling the same on foot, and for passing and repassing. And if his sign in no way impeded or tended to impede such travel, or in no way endangered the safety of such pedestrians in passing over the sidewalks, as they were wont to do, then the city had no right to require him to take it down; and it was no offense in the defendant to refuse to do so; and he would not be guilty of any criminal offense. It is only the violation of a legal ordinance that is a criminal offense. It is only to valid and lawful ordinances that section 2820 of the Code applies.

While we have been so far discussing this case upon general law and general principles, we do not believe that a fair and reasonable interpretation of the charter goes further, or was intended to go further, or to authorize the city fathers to do more than we have said they could do.

It provides in paragraph 6 of section 79 (after enumerating other things): "or other projection or construction upon or over any sidewalk in the city whereby the free and safe passage of persons (1024) may be hindered, delayed, obstructed, or in any way endangered." Therefore, to our minds, it is manifest that this paragraph of the charter is qualified and restricted, and that the obstruction (if we may call it such) must be such as will hinder, delay, obstruct or in some way endanger the use of the sidewalk (or at least tend to do so) to the use of pedestrians in passing and repassing upon it.

According to the evidence in the case, no one of these conditions is present. The sign is fourteen feet above the sidewalk, and of course can not be an obstruction to pedestrians, and it is shown to be perfectly secure, and in no danger of falling.

But the State contends that the charter (section 79, paragraph 6) authorizes the aldermen to condemn this sign and to require its removal, and that they have done so, and that defendant was properly convicted. We do not think so. We are of the opinion, as we have said, that a fair and reasonable interpretation of the statute does not sustain the State's contention. But if there are doubts as to its construction (and we do not think there are), they must be resolved against the power and against the State, as its right depends upon this power. 2 Dillon Mun. Corp., sec. 91;Slaughter v. O'Berry, ante, 181.

The governing bodies of cities and towns are vested with what is known as police powers, and they may do many things under and in exercise of this power. But still, they must act within the scope of their delegated powers, or their acts are ultra vires and void. They can not do what they are not authorized to do by their charter or by the general law of the land. If a thing within itself is not a nuisance, they can not make it so by saying it is. If a sign hanging four feet from the wall of defendant's store building, firmly attached to the same, and fourteen feet above the sidewalk, is not an obstruction to footmen on the (1025) sidewalk, the city authorities can not make it so by saying it is. And if this sign is securely attached and fastened to the building by iron bars and fastenings so that there is no danger of its falling, the city authorities can not make it dangerous by saying it is. S. v. Webber,107 N.C. 962; S. v. Taft, 118 N.C. 1190; Dillon, supra, sec. 87. The State must show the power or the ordinance is void. Cooley Const. Lim. (4 Ed.), 236. This question of overhanging signs has been elaborately and ably discussed in Goldstraw v. Duckworth, 5 Q. B. Div., 275, and very much the same views are taken in that case, as to such signs, as are taken in this opinion.

But it is said by the State, among many arguments it makes for the support of the judgment below, that to hold that the city had not the power to have this sign taken down, would destroy all city government. We do not think so. But if the law is so written, it must be so held, though it should have that effect. But it must be kept in mind that the power of the city government is not all that is to be considered in deciding this case. The rights of individual citizens are also to be considered, and they are of equal importance, and probably more in need of the protection of the courts than the mayor and board of aldermen of the city of Raleigh.

The Court holds that, upon the evidence in this case, the court below should have instructed the jury that, if they believed all the evidence, the defendant was not guilty. But if there had been evidence tending to show that the sign was an "obstruction" to footmen on the sidewalk, or tending to show that it was dangerous to the traveling public, it would have been the duty of the court to submit the question to the jury under proper instructions. Howard v. Robins, 1 N.Y. 63; People v. Carpenter, 1 Mich. 287. And to this it is replied that this would be (1026) destructive of all city government, to leave such questions to the jury. We do not think so, but as we have said, if it is the law, it must be so held, let the results be as they may. But, as between a jury, under the restraints of an oath, and the instructions of a judge, we think the citizens' rights would be more likely to be protected than they would be by the uncontrolled authority of the city government. The boundary between the rights of the citizen and the powers of the mayor and aldermen is not very plainly marked, and is easily invaded unless great care is taken. But this line is there, though delicately marked, and it must be found and observed. Slaughter v. O'Berry, ante, 181 While this is true as to many things, there are other rights and duties that the city authorities plainly have. It is plain that they have such powers as are expressly granted, unless they are void as being unconstitutional, or in violation of individual rights as established by the general law of the land. They also have such other powers as are incident to and necessary for them to have and exercise in order to carry out and enforce such express powers as are lawfully granted them. It is their duty to keep the streets and sidewalks in good condition, and to remove such obstructions from the sidewalks as are on them and are manifestly calculated to "hinder, delay, or endanger" the ordinary use of said sidewalks. Such obstructions clearly fall within their power, and it is their duty to exercise it in a proper manner. But such things as do not appear to hinder, delay or endanger the public and do not in any way obstruct the sidewalks, they do not have absolute control over. And to give them this right, they must allege and show that such signs or other such things are obstructions, or tend to obstruct, or that they are dangerous to the traveling public.

For these reasons we do not say that the ordinance is absolutely void, because if the State can show that the sign is dangerous to the public, the city authorities had the right and it was their duty (1027) to have it taken down. And in such event the defendant would be guilty of a violation of the criminal law of the State. But the State must allege and show this before he is liable. There is error for which there must be a

New trial. Cited: Board of Education v. Henderson, ante, 691; S. v. Hill, post, 1142; S. v. Caldwell, 127 N.C. 521; Hester v. Traction Co., 138 N.C. 293;S. v. Godwin, 145 N.C. 464.

Overruled: Small v. Edenton, 146 N.C. 530; Rosenthal v. Goldsboro,149 N.C. 134; S. v. Staples, 157 N.C. 638.

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