I dissent from the foregoing opinion for the following reasons:
Clause 66 of section 1 of the Cities and Villages Act gives the city the power to regulate the police and to pass and to enforce all necessary police ordinances. I concede that the exercise of this power must be promotive of the health, the safety or the morals of the people, and that it must be reasonable and not oppressive or partial.
Clause 75 gives to the city the right to declare what shall be nuisances and to abate the same. If the thing legislated against be a nuisance per se, or becomes so by reason of its locality, surroundings-or its management, the power of the city over it is plenary; but if it may or may not be a nuisance, the power of the city to declare it a,nuisance depends upon the fact that it is such. Laugel v. Bushnell, 197 Ill. 26. In doubtful cases much is necessarily left to the discretion of the city, and its acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted to them. 1 Dill. Mun. Corps., sec. 379.
Clause 78 empowers the city to do all acts and to make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease. It is difficult to define the police power. The status of a great city never becomes fixed, but changes from year to year. Hence a definition of that power which protects the life, health and morals of the citizen today may be totally, inadequate in the next decade. It is sufficient to say that this power is based upon and is co-extensive with the maxim Solus populi suprema est lex, and is flexible enough to meet all the demands of our changing civilization. Ho man owns his property absolutely. When the public needs it the public takes it. That he is compensated for such taking is a mere incident, not a part of the power. He is given its ascertained value because that is equitable,-and not because it is his right. Nor can the owner put his property' to any use he may see fit. That use is hedged about by the maxim Sio utere tuo, ut alienum non leedas. To prevent a harmful use of property the city may pass any reasonable ordinance under the police power granted in its charter.
The master fairly states the construction of these billboards as shown by the evidence as follows: “ These billboards are constructed very much like an ordinary fence of close boards, a structure commonly known to all men, but instead of the usual six-inch cedar fence posts we have here 4x4, 4x6 and 6x6 pine posts; and whereas the common fence has no bracing, these bill-boards are braced with 2x6 pieces of pine running from the top of the upright post and firmly fastened to the wooden anchor in the ground. If we imagine the common fence with its posts carried up to the height of twelve feet to twenty-four feet, and then braced as these bill-boards are braced, as aforesaid, we have a good idea of the structure of these bill-boards.”
The bill charges that, “ as already alleged, complainant has about 400 sign boards within the limits of said city, and that said sign boards will, from time to time, necessarily require repairing and rebracing in order that the same shall be free from all danger to the citizens of the city of Chicago and persons passing in proximity thereto; that however strongly and securely said boards may be originally constructed, the effect of the elements upon said boards will from time to time absolutely necessitate repairs being made to them to keep them in a proper and safe condition.”
The evidence shows that complainant has about 773 billboards within the city; about 170 of them are placed upon the top of other bill-boards; they measure from 10 to 36 feet in height, and are from 10 to 361 feet in length. Their sheet-like structure makes them peculiarly liable not only to be blown over, but also to be carried a distance by violent winds. A rotten upright, or a brace which pulls out, or a nail which gives way, may put the entire structure at the mercy of the next wind storm.
It is the duty of the city to keep its streets in a reasonably safe condition, not only within the limits of the highway, but also as to structures adjacent thereto which from their insecurity endanger the safety of the passer-by. Instances in which the exercise of this power in the wrecking of unsafe structures on private property has been sustained are so numerous that the citation of any of them is unnecessary.
Where the power to pass an ordinance concerning a certain subject is clear, the law is well settled that prima facie the ordinance as passed is valid; N. Chi. City Ry. Co. v. Lake View, 105 Ill. 207; State v. Dubarry, 46 La. Ann. 33; State v. Inhabitants, etc., 53 N. J. L. 132; and the courts will not interfere except to prevent the unreasonable invasion of private rights. In considering the validity of ordinances the courts will give them a reasonable common sense construction, and will incline to sustain rather than' to overthrow them. If by one construction an ordinance will be valid, and by another void, the courts will, if possible, adopt the former. Perry Co. v. Jefferson, 94 Ill. 220; Lasher v. People, 183 Ill. 226. It is true that if an ordinance be entire, each part having a general influence over the rest, and one part be void, the entire ordinance is void. It is also the law that where an ordinance consists of several distinct and independent parts, although one or more of them may be void, the rest are equally valid, as though the void clauses had been omitted. 1 Dill. Mun. Corps., sec. 421, 4th ed.; People v. Olsen, 204 Ill. 497. The first four sections of the ordinance in question relate to bill-boards thereafter to be erected. The fifth section deals with bill-boards then constructed and in place. If this last section were struck out the ordinance would remain a perfect whole. Hence section 5 is a distinct and independent part, not having a general influence over the remainder of the ordinance. It follows that the other sections may be valid, despite the fact that section 5, as held in the majority opinion (with which in this respect I agree) is oppressive and void.
Section é relating to bill-boards upon and along boulevards and pleasure driveways is more in doubt. The time will come, if it is not now here, when the beauty created by the expenditure of millions of the public funds will not be allowed to be disfigured by vast bill-boards portraying the virtues of particular brands of whiskey, or of medicines which work while you sleep, in order that some corporation or firm may have a net annual income of less than four cents per superficial foot of such boards.
The provision in section 1, that such bill-boards shall be constructed of sheet or galvanized iron, or some other equally incombustible material, needs no argument to sustain, it. The inflammable character of thin sheets of weather-dried boards is common knowledge. The power of the city to legislate against fire is plenary. The provision limiting the superficial area of each board to 100 square feet is justified by the electrical conducting power of the material of which the new boards are required to be constructed. The city is rapidly being enclosed in a network of live wires which threaten death to every living thing which comes in contact with their currents. It is prudent that the city take all reasonable precautions to interrupt the possible carrying of this deadh7 current by limiting the length of these boards.
The provision that such bill-boards shall not be located nearer than twenty-five feet back of the front line of the lot is not unreasonable. If. the board be blown over, from the nature of its construction, it falls toward the street. If the board be built to the height permitted by the ordinance it may not reach the sidewalk should it hold together. But if parts of it are separated from the rest, the violence of the storm will carry them further. "Who shall say that the provision for a leeway of fifteen feet is unreasonable and an unnecessary disturbance of the enjoyment of individual rights % Certainly, in the absence of evidence to prove its unreasonableness, a court ought not to so decide.
The provision in section 2 that no bill-board shall be constructed of a greater height than ten feet abpve the level of the adjoining streets is properly based upon the necessarily fragile character of the construction of- these boards, when the vast expanse which they present to the wind is considered. It may be that a greater height is still within the limits of safety, but that is a question resting in the discretion of the city council, the exercise of which will not be disturbed by the courts except it plainly appears (as it does not in this case) that the result is oppressive or prohibitive.
The provision that the base of the bill-board shall be at least three feet above the level of the adjoining streets is justified by the evidence. It is not shown that complainant is injured thereby. To put the base of the board next the ground furnishes a place where offensive nuisances may be committed, where refuse and filth may be dumped, and where tramps and thugs may hide; thus endangering the health as well as the peace and safety of the public.
The provision in section 3 that no bill-board shall be erected within five feet of any other board is sustained by the fact that it lessens the dangers arising from crossed or broken electrical wires, and provides a partial relief of wind pressure in storms. '
Appellee has erected these bill-boards to the height of thirty-six feet and for the length of an entire block. Believing that such structures threatened the safety of the public, the city council passed the ordinance in question. The regulations therein prescribed must be deemed proper and lawful unless they are shown unnecessarily to deprive the owners of real éstate of a fair and safe use of their property. As to the first three sections of the ordinance this record is silent concerning any unreasonableness, while the conclusions to be fairly drawn from the evidence are that these regulations are 'just and reasonable, and limit the use of private property no further than is required for the public safety.
The questions arising in this case are somewhat novel, but in Gunning v. Buffalo, 77 N. Y. Sup. 987; Whitmier v. Buffalo, 118 Fed. Rep. 773 (W. D. New York); In re Wilshire, 103 Fed. Rep. 620 (S. D. California); Rochester v. West, 164 N. Y. 510, and in Crawford v. Topeka, 51 Kan. 760, they have been discussed.
In the Kansas case, supra, it is decided that an ordinance directing that every bill-board shall be placed at least five feet further back from the street line than the height of the board, is unreasonable and in deprivation of property-rights. But in the same case it is held tha°t if a bill-board fastened to the sidewalk blows down and injures one in the street, the city is liable, if the board had been in an unsafe condition for a time long enough to charge the city with notice of its condition. This case, while holding that the city can exercise no control over the -construction or location of a bill-board, puts upon the municipality the duty of constant supervision to see that the board is kept in repair. A decision which announces such opposing conclusions is not persuasive to the average legal mind.
In Gunning System v. Buffalo, 71 N. Y. Sup. 155, and 77 N. Y. Sup. 987, the ordinance provided that no one should erect a fence or bill-board more than seven feet high, and that any fence or bill-board erected contrary to the ordinance should be abated as a nuisance. Complainant averred that it had erected upon private property a billboard twelve feet high and fifty feet long, and that the city was about to tear it down. An injunction was obtained and continued in force until the final hearing. The trial resulted in an order dismissing the bill and dissolving the injunction. Upon appeal the decree of the trial court was affirmed. The court say: “In this case the charter of Buffalo expressly authorized it to enact such ordinances as should be deemed expedient for the good government of the city and the promotion of peace and good order. These expressions are quite similar to the welfare and safety of the community. The court very properly held that authority was given the city to adopt the ordinance in question by the provision of the charter.”
In Rochester v. West, supra, the ordinance prohibited the erection of bill-boards exceeding six feet in height except by permission of the common council after notice to the owners, etc. The defendant was convicted of a misdemeanor for a violation of the ordinance. The charter gave the city the authority “to license and regulate bill posters and bill distributers and sign advertising, and to prescribe the terms and conditions upon which any such license shall be granted,” etc. The court say: “Nor do we think that the appellant’s claim that this statute (charter) was unauthorized, can be sustained. It is obvious that its purpose was to allow the common council to provide for the welfare and safety of the community7 in the municipality to which it applied. If the defendant’s authority to erect bill-boards was wholly unlimited as to .height and dimensions, they might readily become a constant and continuing danger to the lives and persons of those who should pass along the street in proximity to them. * * * Nor was it in conflict with any provisions of the state or federal constitution. * * * When a statute is obviously intended to provide for the safety of a community, and an ordinance under it is reasonable and in compliance with its purpose, both the statute and the ordinance are lawful, and must be sustained.”
In In re Wilshire, supra, on a petition for habeas corpxis, it was held that a municipal corporation may lawfully, in the exercise of general police powers delegated to it by its charter, regulate the height of bill-boards maintained therein, within reasonable limits; and a city ordinance limiting the height of such structures to six feet from the ground or sidewalk is not so clearly unreasonable as to justify a court in holding it void as in violation of constitutional rights of property7, and the petitioner was therefore remanded to the custody of the officer.
In Whitmier v. Buffalo, supra, following Rochester v. West, supra, it was held that under the Buffalo city charter authorizing the common council to enact ordinances to prevent and abate nuisances and for the good government of the city, etc., the city had power to pass an ordinance prohibiting the erection of bill-boards exceeding seven feet in height within the city without the council’s permission, and authorizing the abatement of any board erected in violation of the ordinance as a nuisance.
Believing that these cases state the law, I am compelled to dissent from the majority opinion in this case.