Abilene weekly reflector. [volume] (Abilene, Kan.) 1888-1935, 1910-10-27
ABOUT THOSE VARIOUS AWNINGS
Court says Can't Prohibit Unless a
Nuisance or Obstruction.

The written opinion OF the court
overruling the motion to dissolve the
temporary injunction restraining the
city from removing the balcony In
front Of G. G. sterl's store, has been
received here and placed on file.
The opinion is Of interest not only
because OF the position taken with
regard to the much discussed Sterl
injunction suit, but also on account
of its bearing on a number of recent
controversies to, which city officials
have been parties. The court lays
down the principle that the regula-
tive powers of city council granted
by the statutes cannot be exercised
arbitrarily and without discrimina-
tion--in short, that to regulate is one
thing, to prohibit another.
The opinion says in part: "The
question raised involves the power
Of the city authorities to summarily
and arbitrarily remove said balcony
or awning regardless Of whether the
same obstructs the travel on said
street or sidewalk, and regardless OF
whether the same Ii dangerous to
persons travelling on said street or
sidewalk"
After quoting section 400 Of the
statutes Of 1909 in which the powers
Of councils Of cities Of the second
class, in such cases, are defined,
Judge King continues: ut will be
noticed by the first part of this sec
ton that the council have power to
prohibit and prevent Entertainments
into and upon sidewalks, streets,
ETC., and to provide for their removal
at the expense of the owners or per-
sons placing the same there, while
by the latter clause, relating to
awnings, awning posts and other
things named in said clause, power Is
given to the council to regulate the
same; and unless the word regulate
there used is to be construed as TO
confer power TO prohibit, and to do
SO regardless of the dangerous char
acter of the things enumerated IN
sid latter clacse, including awnings
and awning posts, then in such case
we are Of tie opinion that the motion
to dissolve the injunction in ;his
case should be overruled."
Judge King quotes the following
from Vol. 20 of Cyc: "Encroach-
ments are to be distinguished from
distractions, and a mere encroach-
ment, not actually interfering with
travel, cannot be summarily removed
except where there is charter or
statutory authority therefore,"
He also quotes as follows from the
case of Hisey VS.. Mexico, 81 Mo-, APP.
PAS:
but It has been held that power
to regulate does not authorize the
removal of a safe structure which
does not materially interfere with
the free use and enjoyment of the
sidewalk by the public; that an avn
ing cannot be removed merely be-
cause 1t is an encroachment on the
street. and that a municipality can
not direct the removal of all avn
ings on streets without regard to
whether they are nuisance in fact
The opinion continues: "And In
our view of tie Construction to be
placed on the last clause Of Sec. 400
above quoted ori9 gives the power to
4 regulate suth things as awnings and
that the case Of Hisey vs.. Mexico
states the correct rae. 1t follows
THAT II such Is the llIle that the orui'
nance Of the city If Abilene, No. S46'
set out as a part IL tie agreed Facts
land which attempts to prohibit such
things as awnings without regard
Ito whether or not they are nuisanees
Ior dangerous to public travel, Is nm
reasonable and invalid"