
    The People ex rel. Wineburgh Advertising Co., Relator, v. Edward S. Murphy, as Superintendent of Buildings, Etc., Respondent.
    (Supreme Court, New York Special Term,
    October, 1908.)
    Constitutional law—Deprivation of life, liberty or property without due process of law—Regulating erection of buildings — Height of sky signs.
    The restriction of the height of sky signs for advertising purposes to nine feet by municipal regulation has real relation to the , public safety, and is nob unreasonable in its operation, and is within the police power.
    
      Application for peremptory writ of mandamus to compel approval by respondent of plans submitted by relator for the erection of a certain sky sign on premises ¡No. 27 East Twenty-second street.
    Louis Marshall, for relator.
    John P. O’Brien and Samuel J. Parmenter, for respondent.
   Bischoff, J.

The structure sought to be erected by the relator, a sky sign for advertising purposes exceeding nine -feet in height, is within the prohibition of section 144 of the Building Code; and the question presented is whether the restriction of the height of such signs to nine feet, as an arbitrary measurement, is beyond the scope of the powers conferred upon the municipal assembly by the State under which this Building Code was adopted. Charter of 1897, §§ 47, 647; Charter of 1901, § 466. While the regulation of the height of sky signs was not expressly included among the statutory powers of the municipal assembly, general authority to make regulations for the public safety in the ; erection and maintenance of structures is found in the wording of the charter; and the validity of section 144 of the Building Code is to be tested by the inquiry whether the regulation of the height of these signs is a reasonable restriction within the limits of the police power. Certainly, the matter of the height of sign-boards erected upon the roofs of buildings has relation to the public safety. The greater the height of these structures, the greater is the probability of their becoming dangerous through being caused to fall to the street by the force of the wind; and, while it may be that a sign of any height could be made secure as a matter of theoretical engineering, this does not meet the question, for the supervision of the details of insuring safety in each instance would readily become a matter too burdensome for the municipality to be required to undertake. The inherent danger being limited to the height of the structure, the restriction of the height to limits ordinarily consistent with safety appears to be a reasonable expedient for the welfare of the public; and, unless the restricted measurement adopted is clearly unreasonable, the court is not to interfere with the judgment of the law-making body as expressed in the statute or ordinance. The public safety being within the concern of the police power, and the height of the signs being related to a potential danger to the public, a case for regulation is apparent. Being empowered to regulate, the framers of this ordinance could properly investigate and determine the extent of the danger and the restrictions which safety required. Presumably, the matter was investigated before the restriction in question was adopted; and, while the measurement of nine feet may he styled arbitrary, in the sense that it admits of no deviation, it would be quite as arbitrary for the court to say that the measurement should be increased by two, ten or twenty feet, as the interests of a property owner might he served in a particular case. Again, sign-boards of this character, if not restricted in size, could well be a public menace in hampering the use of fire apparatus upon the roofs of houses, a danger which the ordinance contemplates, according to the context; and the court is not to say that the vertical limit of nine feet is unreasonable, in view of the vital necessity for the momentary use of roof space by the fire department, under circumstances which would render the general incumbering of roofs with screens — not surmountable and difficult to demolish — a source of danger to the community in obstructing the necessary efforts against the spread of conflagrations. That the definite regulation of the height of sky signs is a matter within the police power has been recently held (City of Rochester v. West, 164 N. Y. 510; Gunning System v. Buffalo, 75 App. Div. 31) ; and, as I have noted, the actual limit fixed by this ordinance cannot properly be declared unreasonable by the court. It is unnecessary to discuss the many authorities referred to by counsel upon the subject of the limitations of the police power, or the conflict between the exercise of that power and the right of the individual in the enjoyment of his property. Undoubtedly, the restriction which interferes with the liberty of the individual in the use to which his premises may be put must have real relation to the public welfare and must not he, apparently, unreasonable in its operation; and, where the police power has been unsuccessfully invoked to sustain an enactment, the case is found to he one not answering to this test. Here, the regulation was reasonable in its practical application, and the matter regulated was within the scope of the police power. I must, therefore, hold that section 144 of the Building Code is not open to attack as unconstitutional and that the relator’s admitted noncompliance with the restriction of that section in the plans proposed necessarily affords an answer to his application for a writ of mandamus.

Motion denied, with ten dollars costs.  