Bill-boards. The bill-board evil is the classic illustration of offensiveness to even the most poorly nourished artistic sense. Several ordinances of one kind or another have been attempted to legislate it out of existence. Park commissions have attempted to protect the neighborhood of parks and parkways by an ordinance of exclusion. But every drastic measure has been successfully thwarted by repeated court decisions.[144]
A very recent Missouri case[145] has been generally understood to announce a different rule and to uphold the prohibition of bill-boards as an exercise of the police power. The case arose under an ordinance of the city of St. Louis of which the following are the essential provisions:
1. No bill-board hereafter erected shall exceed fourteen feet in height above the ground.
2. All bill-boards shall have an open space at the bottom of at least four feet.
3. No bill-board shall exceed five hundred feet in area.
4. No bill-board shall approach the street line nearer than fifteen feet or the side line of the lot on which it stands nearer than six feet.
Besides these structural requirements there seems to be a discrimination in the matter of license fees against structures used as bill-boards; for although no fees are charged for fences which may be used for bill posting, a fee is imposed for the erection of bill-boards; and although a fee of only $1.00 is charged for the alteration or erection of buildings costing less than $1,000, a fee of $100 is charged for a bill-board 50 feet long, the total cost of which may not exceed $100. The same disproportionate charges are made for the erection or alteration of signs on the top of buildings.
The ordinance was attacked on every possible ground: First, as a taking of property without due process of law; second, as denying the equal protection of the laws by prescribing restrictions against structures on which advertising is displayed, but not against similar ones structurally as objectionable,—in other words, discriminating against the kind of use to which a structure is put; third, as taking property without compensation and without public necessity. The case was first heard before a justice of the supreme court, and his finding that the ordinance was a reasonable exercise of the police power was upheld by the full bench with two judges dissenting. To the contention raised by counsel for the bill-board company that the statute discriminates, the court replied that there can be no discrimination, since bill-boards are of necessity in a class by themselves because of their temporary character and consequent cheap and insecure structure. In distinguishing them from other structures on the top of buildings, like tanks, chimneys, towers, poles, and so forth, the court says: “Should they (bill-boards) be required to be constructed with the same permanency (as tanks, towers, and so forth), that fact alone would destroy their commercial value and put them out of business, for the cost of construction would greatly exceed the amount of income that would be derived therefrom,” It is the finding that bill-boards are “nuisances in character” distinguished from all other apparently similar structures by their cheapness and insecurity that distinguishes the Missouri decision from those which have held similar ordinances invalid as an unwarranted exercise of the police power.
The Missouri case finds something more dangerous in bill-boards than the paper on them containing the advertisement. The decision amounts to this: All bill-boards are likely to fall; to construct them safely would involve a cost which would prohibit their erection; all bill-boards are likely to harbor nuisances; all bill-boards increase the fire hazard. One form of regulation would be to require construction specifications, but it is just as reasonable to move them back from the lot line and so limit their height that the danger from them is removed. It is also reasonable to require an open space at the bottom and at the sides of the lot so as to check nuisances that tend to grow up behind the barrier and to decrease the risk of fire.
This St. Louis case has been taken to the supreme court of the United States on a writ of error, but it goes up with the advantage to the city that the highest state court has found it a valid exercise of the police power. The supreme court is slow to overthrow such a finding and the chance is good for establishing a precedent irrespective of the reasoning of the court. The decision can not be cited as sustaining the exercise of the police power for esthetic purposes, but the charge is well founded that esthetic considerations are poorly concealed behind the pretext of guarding the safety, morals, and health of the people.