« AnteriorContinuar »
Appellants also offered to show that bill-boards offered a protection to disorderly and law-breaking persons and that residence districts are not afforded as full police protection as other districts in the city of Chicago, and the court refused to hear this evidence, and in this the court also erred. It did, however, appear from the testimony that women and children are on the streets, unaccompanied, in larger numbers and more frequently in residence districts than in other places, and that the crimes against women and children the most frequent are indecent exposure and offenses against the person. It is shown by the testimony that the two elements contributing to crime in cities are, in the order of their importance, first, absence of police; and second, darkness. It was shown by appellee that in some instances lights were maintained upon the front surface of its bill-boards, but in answer to this it was shown that the space behind the boards remained dark, and that the rear was even darker than it would have been if there were no lights at all. It was shown that nuisances were permitted to exist in the rear of surface bill-boards, and physicians testified that deposits found behind bill-boards breed disease germs, which may be carried and scattered in the dust by the wind and by flies and other insects. It was shown that dissolute and immoral practices were carried on under the cover and shield furnished by these bill-boards. The answer made to all this is, that any other structure or building which would afford a like screen from view would produce similar results, and herein is found the basis for the contention that the ordinance is discriminatory; but we are of the opinion that the surface bill-board is unlike, in several particulars, structures that are erected for other purposes, such as fences, barns and other out-buildings that may be used in connection with a residence. This argument was made in the case of Gunning Advertising Co. v. City of St. Louis, 239 Mo. 99, and we quote the answer of that court to this argument, as follows: "While that is possible yet it is not probable. Nor does the erection and maintenance of a building or å fence along the lines of private property bordering upon public streets have the natural tendency to create any such nuisance as those mentioned. Buildings and fences are erected for the purpose of enclosing grounds and excluding therefrom strangers and trespassers, and common experience teaches us that they are effectual for that purpose, which is inconsistent with the idea that they promote and harbor nuisances, as billboards do, which rarely, if ever, enclose the grounds upon which they stand. That is not the purpose of their erection. Generally they are built along only one end or side of a lot or plot of ground, but occasionally upon two sides, and in rare instances upon three, but I have never seen or heard of a lot being enclosed upon all four sides by billboards. The end of the lot fronting upon an alley is almost invariably left open, for the simple reason that the alley is not conspicuous in the public eye, and for that reason it would be useless to display advertisements at such places where they could not be seen.”
Under the state of facts shown by the evidence here, we cannot agree with the court below that the ordinance in question is void for unreasonableness. Before the court will be justified in declaring the ordinance invalid the unreasonableness should be made to clearly appear. It should be manifest that the discretion reposed in municipal authorities has been abused in the exercise of the power conferred. (Chicago and Alton Railroad Co. v. City of Carlinville, 200 Ill. 314, and cases there cited.) The case of City of Chicago v. Gunning System, supra, is clearly distinguishable from the case at bar. The ordinance there held unreasonable and void was general in its terms and prescribed restrictive conditions in regard to the erection and maintenance of bill-boards, and made no exception whether the bill-boards were in a thickly settled part of the city or in an open block or field. Mr. Justice Wilkin said on this point in the Gunning System case: “It must be apparent to all reasonable minds that provisions which are necessary in one of such cases would be wholly unnecessary and unreasonable in others, and that a provision might be a reasonable police regulation in the one case and in one locality which would be wholly unreasonable under other circumstances in another locality. This ordinance is, however, without qualification or limitation applicable to signs and bill-boards alike in all portions of the great city of Chicago, applicable alike to every portion of its extended territory. We do not hold that this ordinance is so unreasonable as to be void if it were limited to particular districts of the city.” In Haller Sign Works v. Physical Culture School, 249 Ill. 436, we held a statute which prohibited the erection of any character of signs for advertising purposes within five hundred feet of any public park or boulevard, illegal and void, for the reason that it did not tend to promote the safety, health, comfort or general welfare of the public but was manifestly passed solely from æsthetic considerations. The ordinance here under consideration is not open to the objections that were apparent upon the face of the statute in the Haller Sign Works case, and the evidence in the record clearly distinguishes this case from the Gunning System case.
The ordinance is not unreasonable or oppressive because it requires the consent of a majority of the owners of property, within certain limits, on both sides of the street where such bill-boards are to be erected. In respect to occupations or structures the location and maintenance of which are subject to regulation under the police power of the municipality, a requirement of frontage consents of property owners, within reasonable limits, is a proper mode of exercising the power of regulation vested in the municipality. Ordinances of this general character have been upheld in regard to livery stables in City of Chicago v. Stratton, 162 Ill. 494, in regard to dram-shops in Swift v. People, 162
id. 534, and in respect to garages in the late case of People v. Ericsson, 263 id. 368.
It follows from the views herein expressed that the court erred in entering a final decree perpetually enjoining the enforcement of section 707 of the municipal code of Chicago.
The decree of the superior court is reversed and the cause remanded to that court, with directions to dismiss the bill for want of equity.
· Reversed and remanded, with directions.
Dunn and Cooke, JJ., dissenting.
DIETRICH M. E. BRUN, Appellee, vs. The P. Nacey Com
PANY and The Chicago City RailwAY COMPANY,
Opinion filed December 16, 1914–Rehearing denied April 7, 1915.
1. NEGLIGENCE—when plaintiff must prove ordinance imposing the duty upon a street railway company to repair street. Where the declaration, as against the defendant street railway company, counts upon a duty imposed by ordinance to keep the portion of the street occupied by it in good repair, and not upon any common law duty, the plaintiff must prove that there was an ordinance imposing such duty at the time and place of the injury.
2. Same—when plaintiff must show that place of injury was within provision of the ordinance. Where an ordinance authorizes the construction of a street railway along a certain street “to the present limits of the city," and requires the company to keep the portion of the street occupied by it in good repair, it is incumbent upon the plaintiff, if he relies for recovery upon a breach of such duty, to prove that the locality where the injury occurred was not only upon such street but also within the limits of the city when the ordinance was passed, as courts do not take judicial notice of such matters.
3. Same—when an unproved fact is not supplied by stipulation. An unproved fact that the place where the plaintiff drove into a depression in the street between the defendant street railway com
267 - 23
pany's tracks was within the city limits in the year 1858, when an ordinance imposing a duty to keep the street in repair was passed, is not supplied by a stipulation that at the time of the injury, which occurred in 1906, the defendant was operating a doubletrack electric railway at the place where the injury occurred.
4. Same—what provision of general ordinance does not show a duty to repair street at particular place. A general ordinance requiring all corporations operating street railroads in the city "to keep in good repair such portions of the streets as they severally have agreed or may agree with said city so to keep in repair," does not show a duty by a particular street railway company to keep a street in repair at any particular place, in the absence of proof of an agreement to do so.
5. SAME-effect of acts of 1859 and 1865, relating to Chicago City Railway Company. The acts of 1859 and 1865, relating to the Chicago City Railway Company, conferred no right upon that corporation to occupy any of the streets of the city of Chicago but expressly provided that such right could be acquired only from the city council, with such terms and conditions, rights and privileges as the council had prescribed or might prescribe.
6. SAME—when an instruction as to right of person to assume that a street was reasonably safe for travel is improper. An instruction stating that if the plaintiff was traveling over a certain street in the exercise of ordinary care for his own safety, then, in the absence of knowledge to the contrary, he had a right, as a matter of law, to presume that the street was reasonably safe for the purposes of ordinary travel, is improper, where the defendants are a street railway company and a contractor, as in such case the question of what the plaintiff might presume as respects the performance by such defendants of any duties they might owe is a question of fact and not of law.
FARMER and CARTER, JJ., dissenting.
APPEAL from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding
Amos C. MILLER, and J. HOMER SULLIVAN, for appellant the P. Nacey Company.
CHARLES LERoy Brown, (LEONARD A. BUSBY, JOHN E. KEHOE, and WARNER H. ROBINSON, of counsel,) for appellant the Chicago City Railway Company.