John H. Swisher Son, Inc. v. Johnson , 149 Fla. 132 ( 1941 )

The essential question to be adjudicated is whether the advertising signboards of a cigar manufacturer "made of fireproof material securely fastened between galvanized iron posts firmly imbedded in the ground in cement" displaying only the words "King Edward Cigars," and located on the land of another for an agreed consideration, and erected and maintained within fifteen feet of a public highway, may be required to be removed under a statutory enactment that "no advertisment, advertising sign, or advertising structure shall be constructed, erected, used, operated or maintained . . . within 15 feet of the outside boundary of a public highway . . . outside the city limits of any incorporated city or town."

There are exceptions to the quoted statutory provisions not repeated here. See Secs. 14 and 14-A of the statute, as quoted in the statement.

In the absence of a controlling Federal law for a national purpose, the state has the responsibility and authority under its inherent sovereign police power for the maintenance and safety of the public highways in the State; and such State authority extends to all matters affecting the safety, welfare and comfort of the traveling public on the highways.

The method used and the nature and extent of the exercise of its authority by the State, are determined by the Legislative department of the State government through the enactment of statutes, subject only to paramount applicable provisions of the Federal and State Constitutions for the protection of private property rights against the arbitrary or unauthorized or unjustified or oppressive exercise of authority under the guise of the inherent sovereign police power, which should be exerted only when necessary or desirable and appropriate to conserve the safety, health, morals, comfort, common good and general welfare of the public.

Travel and transportation over the public highways in the State by the operation thereon of modern motor vehicles of high speed, heavy weight and technical mechanism, make it essential to the safety of human life and limb and of property in transit over the public highways, that there be no unnecessary signboards erected and maintained near the highways to obstruct vision or to divert the attention of drivers of rapidly moving motor vehicles on the highways, thereby greatly increasing the hazards of travel and transportation over the highways.

Necessary signboards giving directions to drivers of motor vehicles and others as to places, distances and other matters, are essential to the use of the highways; but the erection and maintenance of advertising signboards relating to matters and businesses not affecting the property on which the signboards are erected or maintained near the highways, greatly add to the hazards of travel and transportation on the highways; and the prohibition and regulation of the erection and maintenance of such advertising signboards for the primary commercial benefit of others than the owners of the land on which the signboards stand, clearly are within the sovereign policy power of the State; and statutes duly enacted to conserve safety and comfort of vehicular travel on the highways should not be adjudged to be unconstitutional, where such enactments do not arbitrarily and unnecessarily impair private rights.

In this case the advertising signboards are the property of a cigar manufacturing company and are erected and maintained upon the land of another party for a consideration paid to the owner of the land. Such signboards are utilized for the benefit of the cigar manufacturing company and have no relation to the uses of the highway for travel and transportation thereon, or to the owner of the land on which the signboards stand, except the compensation for the use of the land on which the signboards rest. The rights of the owner of the signboards for its advertising purposes and of the owner of the land for commercial leasing purposes, are under the law subject to reasonable regulation or prohibition for the essential needs of the traveling public for safety on the public highways in the State.

The statutory regulations complained of are reasonably justified and are not shown to be arbitrary or unauthorized, or to be unjustly discriminatory.

The first part of Section 9 of Chapter 20446, defines the general subject which is forbidden to "be constructed, erected, used, operated or maintained" in the localities defined by subdivision (a) of the Section; and such portions of Section 9 taken together operate as a distinct prohibition confined to particular areas; while the first portion of Section 9 also operates severally with subdivisions (b), (c), and (d), independently of such subdivision (a).

The exceptions contained in Section 14 are exempt from the provisions of subdivision (a) of Section 9, but not from the provisions of subdivisions (b) (c) and (d) of Section 9. The regulating provisions of the statute and the exceptions contained in Section 14 do not cause unjust discriminations, since they have substantial bases in reason and in the public policy indicated by the statutory regulations of the public subject matter.

It is clear that the advertising signboards of appellant company are within the provisions of the first paragraph and of subdivision (a) of Section 9, and that such provisions are not invalid as to it. As the appellant is not affected by the provisions of subdivisions (b) and (c), does not challenge the provisions of subdivision (d), such appellant cannot here complain of the provisions of Sections (b), (c) and (d).

The advertising signboards in this case may not per se constitute a nuisance, but being located and maintained as alleged, they reasonably may distract the attention of the drivers of rapidly moving motor vehicles from the primary duty of such drivers to keep a steady outlook on the road ahead and from approaching vehicles and other circumstances that affect the safety of travelers, it is within the province of the legislature to provide such statutory measures as will conserve the safety of travelers on the public highways of the State, even to the extent of enacting that signboards which are maintained near highways and contribute to the risks and hazards of the traveling public, may be declared by statute to be nuisance and abated. See Pompano Horse Club v. State,93 Fla. 415, 111 So. 801, 52 A.L.R. 51; City of Orlando v. Pragg,31 Fla. 111, 12 So. 368, 34 Am. St. Rep. 17, 19 L.R.A. 146; Maxcy v. Mayo, 103 Fla. 552, 139 So. 121.

Even if the remedy by the nuisance process be not permissible as prescribed in the statute, that section of the statute, even if invalid, does not make the statute ineffective. See Sec. 17 of the Act.

No property of either of the appellants is "taken," but the use of property is regulated and restricted under the police power of the State to conserve the safety of highway travelers; and the statutory proceedings afford appropriate due process of law. There is no impairment of the obligation of the contract under which the signboards are erected on the land of an appellant, merely because the contract is by statute forbidden to be operative in a way that increases the hazards and reduces safety in the use of the highways by the traveling public. See Hav-A-Tampa Cigar Co. v. Johnson, filed this term.

In Anderson v. Shackleford, 74 Fla. 36, 76 So. 343, it was held:

"The power of a municipality to regulate billboards is included in the power to abate nuisances, but cannot be exercised to the extent of depriving one of the legitimate use of his property merely because such use offends the aesthetic tastes of other people in the community." (H.N. 5).

In this case a statute regulates the maintenance of advertising signboards near highways to conserve the safety of the traveling public. See General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799; City of Jacksonville v. Bowden, 67 Fla. 181, 64 So. 769, Ann. Cas. 1915D, p. 99; So. Utilities Co. v. City of Palatka, 86 Fla. 583, 99 So. 236, 268 U.S. 232, 45 Sup. Ct. 488, 69 L.Ed. 930; Davis v. Fla. Power Co., 64 Fla. 246, 60 So. 759, Ann. Cas. 1914B; Sligh v. Kirkwood, 237 U.S. 52, 35 Sup. Ct. 501, 59 L.Ed. 835; Tampa Northern R. R. Co. v. City of Tampa, 91 Fla. 241, 107 So. 364; Euclid v. Ambler Co.,272 U.S. 365, 47 Sup. Ct. 114, 71 L.Ed. 303.

Affirmed.

TERRELL and CHAPMAN, JJ., concur.

BROWN, C. J., and THOMAS, J., agrees to conclusion.

BUFORD and ADAMS, JJ., dissent.

BROWN, C. J., and THOMAS, J., agreeing to conclusion:

We agree to conclusion. See special concurring opinion of Brown, C. J, in Hav-a-Tampa Cigar Co. v. Johnson, filed this day.