99 
PARK AND CEMETERY. 
THE BILLBOARD CRUSADE 
Court Holds Billboards May be Pro- 
hibited 
An important decision has been re- 
cently rendered by Judge Welch, of 
the Superior Court of Santa Clara 
county, Cal., concerning the right of mu- 
nicipalities to prohibit the erection oi 
bill boards within their territorial 
limits. The question at issue was not 
the power to impose a license, or in 
any manner to regulate the erection 
of bill boards, but concerned the 
power of absolute prohibition on the 
ground that they were offensive to 
the sight and good taste. 
The decision of the court was an 
oral one, but was conclusive on the 
points raised. Without qualification 
it was in favor of the municipality 
and the court held that under Section 
3479 of the civil code anything that 
was offensive to the senses could be 
declared a nuisance and prohibited, 
and that an offense to the sense of 
sight might be included with nuisances 
offensive to other senses. Moreover, 
the degree of offensiveness might not 
be equal to all individuals, but being 
within the statutory definition of a 
nuisance the municipal authorities had 
the right to declare the offensive ob- 
ject to be a nuisance, and with the 
discretionary power of the board of 
trustees the courts would not inter- 
fere. 
The case of the municipality of East 
San Jose was very ably presented by 
Jackson Hatch, attorney for the town, 
and as the subject-matter is one of 
great importance, we present here; 
with extracts from his brief: 
Ordinance No. 10 of the Town of East 
San Jose, a municipality of the sixth class, 
prohibits : 
(a) The erection or maintenance of any 
bill board, sign board or other structure, 
for the purpose of painting or other delin- 
eating or picturing or displaying thereon 
or thereby any advertisement of any goods, 
wares or merchandise whatsoever. 
The prohibition does not apply to any 
dwelling house or barn upon which there 
shall be painted or otherwise delineated or 
pictured or displayed any advertisement 
mentioned above; nor to any person having 
a fixed place of business in East San Jose 
who erects or maintains any advertising 
si.gn on the premises where his business is 
carried on and who has paid the license 
taxes exacted from him by the town for 
carrying on such business, and has secured 
from the marshal a written permit there- 
for. provided, that such advertisement ad- 
vertises only goods for sale by him at his 
said place of business. 
The second section of the ordinance pro- 
vides that in case of ,a violation of section 
one the town marshal shall serve notice on 
the person maintaining the prohibited bill 
board, directing him to 'remove the same 
within five days, and that if he fails to do 
so, then the marshal w'ill proceed to re- 
move the same. 
In August. 1906, the town marshal of 
East San Jose served upon Varney & Green, 
the plaintlifs, a notice in writing requiring 
them to remove all bill boards maintained 
by them in the town and used for adver- 
tising purposes, within five days, otherwise 
he would proceed to remove them as di- 
rected by the ordinance. 
Varney & Green refused to comply w’ith 
the ordinance and commenced a suit in 
equity to obtain a perpetual injunction to 
restrain the town marshal from enforcing 
the ordinance. A temporary writ was is- 
.sued, and thereafter the case was tried on 
its merits. In brief the evidence was: 
A’arney Green owned and maintained bill 
boards along Alum Rock avenue, the prin- 
cipal thoroughfare through the town. The 
testimony described in detail these several 
bill boards. About a dozen signs were de- 
scribed. including advertisements of whisky, 
tobacco, cigarettes and other articles of 
merchandise. That these signs were offen- 
sive to a great many of the citizens of East 
San Jose because of their unsightly appear- 
ance and of the fact that they advertised 
beers and whiskies, and that they excited 
much unfavorable comment in the commu- 
nity and were tending to depreciate the 
value of adjoining properties for residence 
purposes, and were very distasteful to the 
community at large. 
The question opened for discussion is: 
Has a municipality of the sixth class in 
California the power, for any cause at all, 
to prohibit the erection and maintenance 
of bill boards for general advertising pur- 
poses within its corporate limits? 
This suggests a consideration of the po- 
lice power and the various conditions that 
fall within its comprehensive grant of power 
to municipal corporations. 
Under our constitution and laws a mu- 
nicipal corporation has almost supreme 
power when it comes to deal with munic- 
ipal affairs, and while this term, municipal 
affairs, is difficult to define, the cases in 
which the courts have attempted to define 
it are so numerous that it is, in California, 
an easy thing, comparatively speaking, to 
bring a case within, or exclude it from, the 
domain of municipal affairs. 
Section 862 of the Municipal Government 
Act provides that any act which a munici- 
pal corporation shall declare to be a nui- 
sance is a nuisance. And, in order to avail 
itself of this grant of power, it is not nec- 
essary for the corporation to declare in 
terms that the act is a nuisance. If the 
act which is punishable be in the nature 
of a nuisance its status as such is suffi- 
ciently fixed. 
In Chicago vs. Gunning System. 73 N. E. 
1 038, the matter of regulating bill boards 
for advertising purposes is held to be a 
valid exercise of police power. 
It is there said that it (police power) is 
that inherent or plenary power which en- 
ables the State to prohibit all things hurt- 
ful to the comfort, safety and welfare of 
society, and may be termed the law of 
over-ruling necessity. 
It is thus clear that if the regulation of 
bill boards for advertising purposes be with- 
in the sphere of the operation of the police 
power, any valid prohibition of the main- 
tenance of bill boards for advertising pur- 
poses vrould have to be sustained under the 
police power, as the same power which au- 
thorizes the regulation of a business would 
have to authorize the prohibition of such a 
business, if such business could be prohib- 
ited at all. 
(Here follows a list of the general things 
assigned by the authorities as justifying the 
exercise of police power; also instances 
when private property may be destroyed in 
the abatement of a nuisance.). 
The general principal running through all 
the decisions is: That the question as to 
whether a given act is or is not a nui- 
sance does not depend upon the existence 
of any actual damage from such act. In 
other words, an act be justly determined 
a nuisance or the subject of regulation or 
prohibition under the police power, although 
it has never caused actual damage to a cit- 
izen or to the community. As was said in 
the Gunning case above cited: “Nor is it 
necessary that all persons in the community 
or, in fact, any individual whatever, should 
be actually inconvenienced or injured, but 
it is sufficient if there is a tendency to tht 
annoyance of the public by an infringe- 
ment of its rights which all are entitled 
to exercise if they see fit.'’ 
In Freund on Police Power, par. 182, \t 
is said: “It is conceded that the police 
power' is adequate to restrain offensive 
noises and odors. The same protection to 
the eye, it is conceived, would not establish 
a new principle, but carry a recognized 
principle to further application.” 
It is difficult to discover just the line of 
demarcation thaf separates the power to 
restrain an act offensive to the hearing and 
to the sense of smell from an act offensive 
to the eye. 
A glaring bill board advertising, for ex- 
stance, “Budweiser Beer,” set opposite a 
man’s house in a vacant lot bordering upon 
a public highway in a country town devoted 
to homes, is just as offensive to the imme- 
diate residents as would be the maintenance 
of a pig sty giving forth offensive odors, or 
the maintenance of a stone breaking ma- 
chine or the chime of hoarse bells. In prin- 
ciple there is no difference between them. 
It is after all only a difference in degree; 
each is an interference with the peaceable 
and quiet enjoyment of one’s property. 
There can be no doubt that a board of 
trustees may not declare an act or omis- 
sion a nuisance w’hich is not in fact a nui- 
sance and which cannot, under any circum- 
stances, in fact be a nuisance. But it does 
not follow that many acts which are not in 
themselves nuisances may not be declared 
nuisances under certain circumstances. 
There can be no question of the power of 
town authorities to declare such acts to be 
nuisances when circumstances justify. 
A bill board may be a nuisance or it may 
not, and a general advertising business car- 
ried on in a community may be detrimental 
to the general welfare and so become a nui- 
sance. The proper function of the board 
of trustees is to ascertain and declare the 
act to be a nuisance. 
Under the general laws of the State, 
“Anything which is injurious to health, or 
is indecent or offensive to the senses, or 
an obstruction to the free use of property, 
is a nuisance.” Civil Code, Sec. 3479. 
As applied to the- facts here, this section 
when analyzed, must of necessity leave open 
to some power the determination as to what 
act is indecent or offensive to the senses, 
or an obstruction to the free use of prop- 
erty, so as to interfere with the comfort- 
able enjoyment of life or property, and Sec- 
tion 862 of the Municipal. Government Act 
commits to the board of trustees of a mu- 
nicipal corporation of the sixth class this 
power. 
The evidence as recited in this brief 
clearly shows that the act pro-hibited was 
offensive to the senses and interfered with 
the comfort and well-being of the commu- 
nity and fully justified the judgment of the 
board of trustees that the maintenance of 
the bill boards under the conditions there 
existing, constituted a nuisance and should 
be prohibited. 
Another Law Upheld by Courts 
All interested in the crusade against 
billboards will be interested in the fol- 
lowing letters received by President 
Harlan P. Kelsey of the Civic League 
of Salem, Mass., telling of a decision 
against billboards in Buffalo. 
It is another sustained decision re- 
garding the erection of billboards on 
(Continurd on page !X.) 
