The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-28

walks of the city. The city authori
| ties may prohibit the projecting of
| such signs over the sidewalks as are
dangerous or such as tend TO impede
! the travel of footmen, and the ordl-
nance in question is void only in so
| far as it violates this rule.
4 city ordinance prescribing a fine
of $50. or imprisonment for 80 days as
a penalty for a violation thereof, is
not void for uncertainty.
After reviewing the facts in the
| case and the argument of counsel for
the city, Judge Furches, in the course
| of his opinion has the following com
| mentS to make:
! THE fallacies OF these contentious are
that the mayor and aldermen of the city
of Raleigh do not own the streets and
| sidewalks; that while the fee may be in
the city it is held in trust for the use
and benefit of the public. And the may
or and aldermen are but the agents of
the city to look after the condition of the
streets and sidewalks for the use and
benefit of the public, and they have no
power arbitrarily to do anything which
| interferes with the right of the citizen
! that the public has not, and cannot, have
any interest in.
| But the defendant besides his general
interest. which he has in common with
the public generally is an abutting own
er to this street and sidewalk. and in this
way has special property-an easement
! in his frontage upon the street.
Then. was it necessary for the public
benefit-for the public convenience, the
| Siu
removed? If st was, then the city au
thorities under their granted powers
would have the right to remove it. This
| power would then be one Of the powers,
incident to their express powers granted
| them over streets and sidewalks OF the
city for the benefit of the public; while,
| on the other hand, the defendant had the
right OF an abutting owner-an easement
the right to use his frontage for the
benefit of his property as he pleased, in
| such Il way as not to interfere with the
rights Of the general public, in safety,
using the sidewalk for the purpose of
travelling the same on foot or for passing
and repassing And if his sign in no
way inpeded or tended TO impede such
| travel. or in no way endangered the safe
| ty of such pedestrians in passing over
/
then the city had no right to require him
to take it down; and it was no offence in
1.-the defendant TO refuse TO do so; and he
would not be guilty of any criminal
| offence 1t is only the violation of legal
ordinance that is a criminal offence.
while we have been so far discussing
| this case upon general law and general
principles, we do not believe that fair
and reasonable Interpretation of the
| character goes further, or was intended
to go further or TO authorize the city
! fathers to do more, than we have said
! they could do 1t provides in paragraph
G. section 80 latter enumerating other
| things), or other projection or cOnstruc-
ton upon or over any sidewalk in the
city whereby the fpee and safe passage
of persons may be hindered, delayed, OBJ
| structed or in any way endangered.
! Therefore, to our minds, ii is manifest
| that this paragraph of the charter is
| qualified and restricted, and that the OBJ
| struction Off we may call it such) must
be such as will hinder, delay, obstruct or
! in some way endanger the use of the side
walk Tor at least tend TO do so to the
| use of pedestrians in passing and repasS-
| ing upon it.
|
| no one of these conditions is present.
The sign is fourteen feet above the side
walk, and of course cannot be an obstruc-
ton to pedestrians, and it is shown to be
perfectly secure and in no danger of fall
ing.
1.-THE governing bodies of cities and
towns are vested with what is known as
police powers, and they may do many
~,
power But still they must act within
the scope of their delegated powers, or
their acts are ultra wires and void. They
cannot do what they are not authorized
to do by their charter or by the general
law of the land. If thing within itself
| is not a nuisance, they cannot make it so
by saying it is. II sign hanging four
feet from the wall of the defendants
store building, firmly attached to the
same, and fourteen feet above the side
walk is not an obstruction to footmen
on the sidewalk, the city authorities can
not make it so by saying it is. And II TINS
sign is securely attached and fastened TO
the building by iron bars and fastenlngs
so that there is no danger of its falling.
| the city authorities cannot make 1t dan
| gerous by saying it is.
|
absolutely void, because if the State can
show that the sign is dangerous to the
| public. the city authorities had the right,
and it was their duty to have 1T taken
down And in such event the defendant
would be guilty of a violation OF the
criminal law of the State. But the State
must allege and show this, before ne is
liable. There is error for which there
ka oil
To the above opinion Justice Walter
Clark dssents and. in course of his
opinion. has this to say:
THE title to the streets of city are
in the city for the use of the public. The
| defendant. an abutting owner upon a
| street, has no more rights therein than
any one else. He has the right of ingress
| and egress to and from his store, but so
| has the public unless he closes it. He
has no right to obstruct the view OF the
street by sign unless permitted by the
city authorities. He has no more right
to hang a sign in the street than the
city has to suspend anything above his
| premises He owns to the line OF his