Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-05-17
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
VlRClNlAN- PsLOT.
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
STATE v. H1GGs.

Il
Supreme Court of North Carolina,
MARCH 81. 1900.
A CHARTER WHICH MAKES 1T A
MISDEMDANoR FOR ANY PER-
SON TO HAVE A PROJECTION
OVER A SIDEWALK WHICH EN-
DANGERS PASSDRS IN THE
STREETS, DOES NOT AUTHORIZE
A CITY TO PASS AN ORDINANCE
REQUIRING THE REMOVAL OF
ALL SIGNS SUSPENDED OVER
THE SIDEWALKS.
The court says:
A municipal corporation is a creature
of the Legislature, and only has such
powers as are expressly given 1t. or
such as are incident to the powers eX-
pressly given. and necessary to the cx-
ecution OF the express powers 1t seems
TO be conceded that they had no cx-
press power to pass an ordinance re-
curing the defendant to take down this
Sign. And we do not mean to say by
this that the city authorities undertook
10 pass personal ordinance requiring
tne defendant to take down his sign,
put TO say they had no express author
ity TO pass a general ordinance requir-
Ing all such signs as his Of there are
others) to be taken down, the violation
VI WOulu DC per Sc a mtSQemca
or.
But the State contends that the city
had express authority to open and
grade streets, and clear and keep clear
the streets and sidewalks of all OBJ
structions; that the city is the owner
OF the streets and sidewalks, sujus est
solum ejus est usque ad coelum and
that the city authorities have the abso-
iute right to remove any permanent fix
ture upon or over the streets or side
walks; that they have the same rights
OF property over the sidewalks of the
city that private citizen has over his
land; and, having this right, they have
the right, by the exercise of their arbi-
trary power. to require the defendant
to take down his sign. The fallacies of
these contentious are that the Mayor
anu Aldermen OF the city of Raleigh do
not own the streets and sidewalks:
that. while the fee may be In the city,
Il is heid In trust for the use and bene-
Mt or the public. And the Mayor 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 can
not have any interest in. But the de-
PENDANT. besides his general interest
which he has in common with the pub
lie generally; Is an AUDITING owner TO
this street and sidewalk, and in this
way has a special property-an ease
ment in his frontage upon the street.
While we have been so far discussing
this case upon general law and general
principles. we do not believe that n fair
and reasonable Interpretation of the
charter goes further, or was intended
to so further. or to authorize the City
Fathers to do more than we have said
they could do. 1t provides in para
graph of section 10 (after cnumerating
other things). "or other rrojc ction or
construction upon or over any sidewalk
In the city. whereby the free and safe
passage OF persons may be hindered,
delayed, obstructcd or in any way en-
dangcrcd." Therefore, to our minds. it
is manifest that this paragraph of the
charter is qualified and restricted, and
that the obstruction Uf we may call it
such) must be such as will hinder. de-
lay. obstruct. or in some way endanger
the use OF the sidewalk Cor. at least,
tend to do so) to the use of pedestrians
in passing and repassing upon it. Ac-
cording to the evidence in the case no
one of these conditions is present. The
sfSr fourteen feet above the side
walk, and. of course, cannot be an OBJ
struction to pedestrians. and II Is shown
to be perfectly secure, and in no danger
OF falling.