in't require

R tud to bear cy unices of antishown.

so at its own expense. It has undoubted power to do the former if it will, but, to do the latter through the ordinance which it has passed, authority to enact the same must appear. The use of the street in crossing it is a public use of it by the railroad company having a legislative right to so use it on an equality with any natural person, except as such right may be limited in the grant of it, and the attempted interference with this right must fail, unless the borough can point to its power to so interfere, expressly or impliedly existing.

Among the express powers conferred upon boroughs by the act of 1851, the one sought to be exercised here does not appear. By the first clause of the second section of that act borough authorities are empowered generally "to make such laws, ordinances, by-laws and regulations, not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the borough." In the succeeding twenty-five clauses of the same section are found the powers expressly conferred, but the power to pass this ordinance is not one of them. In Borough of Millerstown v. Bell et al., 123 Pa. 151, this court, through PAXSON, J., said: "The general powers referred to in the first section must be confined to the particular subjects referred to in the succeeding sections." Without now committing ourselves to this, it is clear that the good order and government of a borough, referred to in the first clause, are not involved in the ordinance. The good order of a borough can be preserved and it can be properly governed, no matter how many railroads cross its streets by Tegislative permission, and no matter how fast cars may run over them. We assume this is the clause designated by the Superior Court as the "general welfare clause" "broad enough," in the opinion of that court, to cover the municipal legislation complained of." For the reason just given we cannot concur in this.

66

The case of Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., 23 Pa. Superior Ct. 205, was relied upon by the Superior Court as authority to sustain the action of the lower court. In that case the Superior Court held that the three following cases were authority for the power of a borough to pass such an ordinance as is now under consideration: Penna. R. R. Co. v. Duquesne Borough, 46 Pa. 223; Township of Newlin v. Davis, 77 Pa. 317, and Pennsylvania Railroad Co. v. Irwin, 85 Pa. 336. An examination of these cases does not justify reference to them as authority for the power claimed by the appellee. In the first, the railroad company, which had become the owner of the canal, succeeded to the duty of maintaining a bridge over it. Having failed to perform that duty, it was held that the borough authorities, as the proper public officers to look after the public highways, had the right to repair the bridge and to recover the expense of doing so from the railroad company. In the second, the action was against a township for injuries resulting from a defective bridge. All that was decided was that it was the duty of the township to properly maintain it. In the third, the railroad company changed the location of a public

road, necessitating the building of a bridge, and it was simply decided that, the company having failed to rebuild and repair the bridge, the township could 'recover the cost of doing so from the company. A fourth case cited by the Superior Court, in Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., is Pennsylvania Co. v. Watson, 81* Pa. 293. The reference was intended to be to another case reported in the same volume — Pennsylvania Co. v. James, 81 * Pa. 194 in which there appears the language quoted in the opinion of the Superior Court as to the police powers of boroughs. But, turning to the charge of the court below, as found on page 198, it appears that power had been conferred by the legislature to pass the ordinance which was under consideration. The legislature might, of course, have done so here, but it has not. By the Act of March 7, 1901, P. L. 20, cities of the second class are authorized to enact ordinances requiring the erection of safety gates and the placing of flagmen at the intersection of railroads with public streets, and by the Act of May 23, 1889, P. L. 277, the same authority is conferred upon cities of the third class.

As a borough of North Braddock had no power to pass the ordinance complained of it is declared to be invalid, and the order of the Superior Court, affirming the order of the court below sustaining it, is reversed, the costs below and on both appeals to be paid by the appellee.

PEOPLE EX. REL. WINEBURGH v. MURPHY.

1909. 195 N. Y. 126.

79

CHASE, J. The relator is a domestic corporation engaged in the business of constructing and maintaining advertising signs and displaying thereon advertisements pursuant to contracts with advertisers.

On June 15, 1908, the relator duly filed an application for a permit to erect a sky sign on the top of a building at 27 East Twenty-second street, in the city of New York, and such application was accompanied by a plan thereof in detail, and also with the consent of the owner of the real property on which it was proposed to erect the sign. From such application and the accompanying papers it appears that the building upon which it is proposed to erect the sign is an office building ten stories in height, and that it is proposed to erect the sign in compliance with the ordinances and regulations of the city of New York except that the proposed sign is more than nine feet in height above the front wall or cornice of the building. The proposed sign would be five feet six inches above the roof and the top thereof would be twenty feet six inches above said front wall or cornice. It is proposed to erect said sign between forty and fifty feet back from the building line on TwentySecond street and to face it northwest and substantially in the direction

of the rear of the building. It is intended for the display of advertisements to be seen from points in the city northwest of said building. The defendant refused to approve the specifications, plans and application or to issue a permit for the erection of said sign, solely because of an ordinance of said city limiting the height of sky signs to nine feet above the front wall or cornice of the building on which it is to be erected. The application was then made for a peremptory writ of mandamus to compel the issuing of such permit. The motion being denied an appeal was taken to the Appellate Division where the order was not only reversed but a writ was granted commanding the defendant to examine the plan and application filed by the relator and described in its petition with reference to the material to be used and the method of construction thereof and as to the safety thereof, and if he shall find that the said structure is to be built of proper materials and in a proper manner and that the proposed structure is safe and secure, then to approve said application and issue a permit thereon."

The consent of the owner of said real property is based upon a substantial consideration paid to her therefor and the relator has entered into a contract with an advertiser for the use of such sign, the consideration for which is also a substantial sum.

It is not open to controversy that if the relator is not allowed to erect and maintain such sign the owner of said building and the relator as her lessee is deprived of some rights in the beneficial use and free enjoyment of private property without direct compensation.

The ordinance of the city of New York to be construed on this appeal defines a sky sign and as so defined it is: "Any letter, word, model, sign, device or representation in the nature of an advertisement, announcement or direction supported or attached, wholly or in part over or above any wall, building or structure shall be deemed to be a 'sky sign.""

The ordinance (section 144 of the Building Code of the city of New York) also provides as follows: "Sky signs shall be constructed entirely of metal, including the uprights, supports and braces for same, and shall not be at any point over nine feet above the front wall or cornice of the building or structure to which they are attached or by which they are supported.

All fences, signs, billboards and sky signs shall be erected entirely within the building line and be properly secured, supported and braced and shall be so constructed as not to be or become dangerous. Before the erection of any fence, sign, billboard or sky sign shall have been commenced a permit (for) the erection of the same shall be obtained from the Superintendent of Buildings having jurisdiction as provided in part 2, section 4 of this Code. Each application for the erection of any fence, sign, billboard or sky sign shall be accompanied by a written consent of the owner or owners or the lessee or lessees of the property upon which it is to be erected.”

It is not the erection over and above any wall, building or structure

that is prohibited, but the thing constructed plus the letter, word, model, sign, device or representation in the nature of an advertisement,

announcement or direction painted or pasted thereon or attached

thereto.

So far as appears there is no absolute limitation upon the height that tanks, towers or chimneys can be erected, nor as to flagpoles, balustrades, finials or other structures ornamental or useful. If it appeared in the relator's application that the structure proposed to be erected was not for the purpose of advertising, but for any other purpose, fancy or whim, it would not come within the prohibitive clause of the ordinance. A further examination of the ordinance shows that it relates wholly to erections within the building line and upon private property. It is in no way affected by the rules of law relating to street or municipal property. As private property the owner of the building on which it is proposed to erect the structure can use it in any way that to her may seem desirable, except as such use is subject to the implied obligation resting upon every owner of property to use it so as not to interfere with the rights of others, and also subject to such restrictions as are necessary for the public welfare.

The police power, so difficult to define, but so frequently invoked, is confined to such reasonable restrictions and prohibitions as are necessary to guard public health, morals and safety, and to conserve public peace, order and the general welfare. Regulations and ordinances within such general definition are valid. The city may make and enforce such regulations and ordinances, although they interfere with and restrict the use of private property. Compensation for such interference with and restriction in the use of property is found in the share that the owner enjoys in the common benefit secured to all.

Does the ordinance, so far as it relates to sky signs, come within the police power, or is its purpose simply to prevent or restrict a lawful business which it is alleged has been extended until it has become offensive to good taste?

Only actived reason for o.f oh

It is not asserted by the city that a sky sign, as defined in the ordinance or as proposed by the relator, has any relation whatever to or effect upon public health or public morals. The only alleged reason for the passage and enforcement of the ordinance is that a structure upon which advertisements are to be placed constitutes a danger by reason of the possibility of its falling into a public street. The dan de ger, so far as it interferes with firemen in passing over the roof of a building, is apparently avoided in the case now before us by the provision that the structure on which the sign is to be erected will have a clear space of five feet and six inches between the roof and the bottom of the proposed structure. A structure nine feet in height would seem to be as great an interference with firemen in passing over the roof as one erected at a greater height.

An ordinance drawn to protect the public from physical danger should in terms bear some evidence of such purpose. So far as the f

ordinance in question relates to sky signs, it is general in its terms and it is as prohibitive in remote parts of the city as in the congested parts thereof, and to a structure erected at a safe distance from any street or public place as one erected upon the front wall or cornice of a building situated upon the building line of a public way. The prohibited height is also based upon an arbitrary measurement above the front wall or cornice of the building, notwithstanding the height of the building at the place where it is proposed to erect the structure may be Pribation not much less or more than at such front wall or cornice of the building. ft.The prohibition is, therefore, not dependent upon the dangerous locaor tion of the structure nor is it based upon the height or safety of the particular thing constructed.

Pased on,

• safety of failemin

But the more serious objection to the ordinance is in the fact that the absolute prohibition is confined wholly to sky signs as they are defined therein. The physical danger to the public does not arise from the advertisements. The advertisement, announcement or direction bears no relation to the safety of the structure itself. It is not the structure, therefore, that is prohibited. Would a structure of any description be more dangerous if it bore the words "Omega Oil?" ·Could a city enact and enforce an ordinance limiting the height of all buildings therein which are painted a particular color and leave unrestricted the height to which a building could be erected so long as it was unpainted or painted a color other than the particular one specified? Such an ordinance would bear evidence in itself that it was not enacted for any purpose within the police power. It appears from the ordinance in question that it was not enacted in the interest of public health, morals or safety or to conserve public peace, order and general welfare, and the ordinance so far as it relates to sky signs is arbitrary and unauthorized.

This court in City of Rochester v. West, 164 N. Y. 510, sustained an ordinance forbidding the erection of billboards more than six feet in height without the consent of the common council. The court, referring to the charter of the city, say: "We think this statute conferred upon the common council of the city authority to regulate boards erected for the purpose of bill posting, so far, at least, as such regulaion was necessary to the safety or welfare of the inhabitants of the city, or persons passing along its streets. . . . It is obvious that its purpose was to allow the common council to provide for the welfare and safety of the community in the municipality to which it applied. If the defendant's authority to erect billboards 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." (p. 513.)

In Commonwealth v. Boston Advertising Company, 188 Mass. 348, the court held invalid an ordinance or regulation relating to signs, posters or advertisements, and say: "The plain and intended purpose of the rule is to prohibit the use of land near public parks and park