#### Thomas Cusack Company, Respondent, vs. City of Milwaukee and others, Appellants.

*April 10*

October *6, 1914.*

*Municipal corporations: Regulation of billboards, etc.: Ordinance: Construction.*

1. A municipal ordinance providing that no “sign, billboard, board, fence, or structure of any kind to be used for advertising purposes” shall be maintained in the city, except as therein provided, applies only to such structures as are built to be used for advertising purposes.

2. Without complying with the requirements of such ordinance a landowner may permit advertisements to be placed on a fence built around his lot, provided such fence is not built simply for that purpose, and the owners of buildings which are constructed for other purposes may allow advertising matter to be placed thereon.

Appeal from a judgment of tbe circuit court for Milwaukee county: OscaR M. Fritz, Circuit Judge.

*Reversed.*

*Daniel W.*íloan, for tbe appellants.

*101For the respondent there were briefs by *Austin, Fehr &*Gehrz, and oral argument by *G. G. Gehrz.*

The following opinion was filed May 1, 1914:

IBabnes, J.

The same questions are involved in this case that are involved in *Cream City Bill Posting Co. v. Milwaukee,*ante, p. 86, 147 N. W. 25. In addition, however, to the questions involved in the *Cream City Bill Posting Company*Case, it is contended by the respondent in the instant case that the plaintiff, under written leases extending for terms of from one to twelve years, -maintains bulletins and advertising displays attached to or painted upon the walls of buildings and upon ordinary board fences; that many of these fences exist close to the lot lines and extend down to the ground, contrary to the ordinance; that the ordinance forbids any board fence or structure of any kind to be used for advertising purposes or upon which any advertisement is shown, painted, or displayed in any way except as therein specified; that a building is a structure, and that the ordinance reaches the buildings and fences upon which the respondent’s advertisements appear; that the mere fact that an advertisement happens to be painted on or fastened to a building or fence does not render either one a nuisance and does not furnish any justification for the exercise of the police power so long as the character of the advertisements is unobjectionable.-

The ordinance applies only to such structures as are built to be used for advertising purposes. If the landowner desires to inclose his lot, he may build a fence around the same and he may permit advertisements to be placed thereon. If, however, the fence is built to be used simply for advertising-purposes, then the terms of the ordinance must be complied with. So too as to buildings which are constructed for other purposes than that of being used for billboards, the owners may allow advertising matter to be placed thereon Avithout subjecting themselves to the pains and penalties of the ordi*102nance in question. If a shell of a building should be put up simply for the purpose of using its exterior walls for advertising purposes, it would to all intents and purposes 'be a billboard, and in such a case it should properly enough fall within the terms of the ordinance. . So construing the ordinance, there is no substantial difference between the two cases.

*By the Court.*— Judgment reversed, and cause remanded with directions to dismiss the complaint.

A motion for a rehearing was denied, with $25 costs, on October 6, 1914.