Connelly's Estate.

It is urged that failure to prosecute the sci, fa. to revive against Mrs. Connelly as terre tenant, is no bar to recovery, and Miller's Appeal, 243 Pa., 328, is cited as authority. That case has no application; while it was a contest between Miller's creditors and his devisees, the record shows that a valid judgment had been obtained against Miller; he continued to be a debtor to Plummer, the plaintiff. There was no proof of payment, nor presumption thereof; the plaintiff in the judgment proceeded, step by step, to assert his demand; no denial of the validity of the debt from him. The claim was allowed, not as a judgment lien upon real estate, but as a proven debt due from Miller to the creditor, payable out of personalty, in the absence of proof of payment or the presumption of payment.

It is further urged that failure to prosecute the sci. fa. to revive the judgment, is not a bar because of the doctrine of lis pendens; the answer is that this doctrine is applicable only on proceedings between the original parties to litigation, not as between the alleged judgment creditor and a new party brought upon the record for the first time, against whom no judgment had been obtained, when the law required it to be done within five years from the date of the issue of the sci. fa. Granted, however, that until November, 1910, there was a lis pendens between the parties to this judgment and Mrs. Connelly was connected therewith; yet it is manifest that after that date, when the proceedings were absolutely at an end, so far as a possible continuance of the lien of a judgment was concerned, no cause of action was pending up until the time of Mrs. Connelly's death which could in any way bring this case within the doctrine.

The claimant was bound to prosecute the sci. fa. with diligence; filed in 1906, it was plaintiff's next move; the averments of the defense had to be overcome; on their face they would have defeated a judgment when proven. To wait until the affiant was dead, presents a record which would put a premium on laches. To allow the claim would be against the facts, the law and equity.

Pittsburgh Poster Advertising Company vs. Borough of Munhall. Boroughs-Billboards-Ordinance Relating to-Reasonableness of.

A borough passed an ordinance prohibiting the erection of any bill posting board unless a license fee of 50c per lineal foot space was paid the borough authorities. The billboards could not exceed nine feet in height from the surface of the ground; requires them to be lighted and constructed under the supervision of the street commissioner and declared that all billboards not constructed in accordance with the provisions of the ordinance were a public nuisance and subject to removal.

Held that the charge was an excessive one for the purposes of inspection and the terms of the ordinance were unreasonable and arbitrary and that the ordinance was, therefore, void.

In Equity. No. 900 October Term, 1914, Docket D. C. P. Allegheny County.

J. Rodgers McCreery, for plaintiff.
John B. McAdoo, for defendant.

STATEMENT.

CARPENTER, J., February 24, 1915.-The plaintiff is engaged in the business of bill posting in Allegheny and other counties in this State. The defendant is a municipal corporation in this county. On the 8th day of November, 1909, the Council of defendant Borough passed an ordinance entitled, "An Ordinance regulating the erection, maintenance and use of billposting, sign and advertising boards and devices of a similar kind within the Borough of Munhall; providing for the licensure of the same and providing a penalty for violation of the provisions of the same."

The preamble to this ordinance recites that the Council has made a careful investigation of billboards and similar structures in the Borough and was of opinion that same were, as then constructed, detrimental and dangerous to the health, safety and morals of the citizens and the good order of the Borough; recites that complaints and remonstrances had been made to the Council by citizens of the Borough, and especially by those residing in the immediate vicinity of the boards; that the boards were so constructed that the space back of them was dark and difficult for the police to guard; that frequent assaults had been made on citizens by desperate characters; that innumerable and continuous nuisances had been committed back of said boards; that obscene and vulgar conduct took place in the shadow and protection of said boards, in full view of the residents in the vicinity, and that these places had become the resort of drunken men; and that by reason of these and similar acts the good order and peace of the Borough was frequently and continuously disturbed, and the health, safety and morals of citizens injured and destroyed.

Section I. of the ordinance prohibits the erection of any bil posting, sign or advertising board or any device of a similar kind, until the owner has secured a license from the Borough.

Section II. provides that applications for licenses shall be in writing and shall set forth the exact location of the board or device, the size and kind, and the name and address of the owner, and the name and address of the owner of the lot; and an agreement or stipulation on the part of the applicant and his successors and assigns to keep the property on which the board is erected free and clear of rubbish, garbage, etc., and to keep same in a sanitary condition in accordance with borough ordinances and rules and regulations of the Board of Health of said Borough.

Section III. provides for the payment of a license fee as provided in Section 9.

Section IV. provides that bill posting boards shall not exceed nine (9) feet in height, from the surface of the ground, that the base shall in all

Pittsburgh Poster Advertising Company vs. Borough of Munhall.

cases be three (3) feet above the surface of the ground, and in no case less than three (3) feet above the grade of the street curb. This section also contains other provisions not material to a decision of this controversy. Section V. prohibits the placing on said boards of any obscene or suggestive advertisements.

Section VI. requires that the boards be illuminated.

Section VII. contains nothing material to this issue.

Section VIII. provides for inspection by the health or ordinance officer. Section IX. requires payment of a license fee of fifty cents per lineal foot of space occupied by billboards before a license can be issued, and that this payment entitles the licensee to maintain the board until the first day of April next ensuing.

Section X. requires the payment in advance of an annual license fee of fifty cents per lineal foot, to reimburse the Borough for cost of inspection. Section XI. requires that all boards shall be constructed under the supervision and direction of the Street Commissioner.

Section XII. declares all sign boards and similar devices erected within the limits of the Borough of any other kind or character than specified, common and public nuisances, requires their removal by the owner within ten days after notice, and in default that they shall be torn down and destroyed under the direction of the Street Commissioner.

Section XIII. provides a penalty of from $10.00 to $100.00 for violation of any provision of the ordinance.

Plaintiffs had erected billboards in the Borough upon private property held by it under lease. These boards were removed, the purpose and intention being to erect new boards. The ordinance complained of was not known to plaintiff until notice to stop work was served by an officer of the Borough. Plaintiff declined to comply with the requirements of the ordinance and filed its bill and amendment thereto, praying for an injunction, and that the ordinance be declared unconstitutional and void. There was also a prayer for general relief.

An answer was filed in which the reasons for enacting the ordinance are set out fully, and the validity of the ordinance averred. The bill, answer and testimony show that the real question in dispute is as to the validity of the ordinance.

OPINION.

The power of boroughs to enact ordinances for the preservation of the health and morals of its citizens can not be questioned. The right to impose what is known as a license fee for the privilege of erecting and maintaining sign boards is not disputed. It is contended that the ordinance complained of is so drastic in its requirements as to be in excess of the power with which the Borough Council is vested. Complaint is made regarding the limitation upon the dimensions of billboards, the regulation as to height and the space required between the ground and the bottom of the board. It is also contended that the license fee is excessive and far beyond any reasonable requirement to meet the expense of inspection. The testimony shows that the business of erecting and maintaining billboards is quite extensive, has become a recognized business, and is conducted along certain clearly defined lines; that it is necessary to have boards of certain dimensions, at least they must not have less than a certain height, as respects surface. It is contended that the requirements of the ordinance, in respect of these matters, is arbitrary and unreasonable, and that compliance with it would render the boards useless and in many instances prevent their erection. It is claimed that the boards must have a clear surface of not less than ten (10) feet in height, and that under

Pittsburgh Poster Advertising Company vs. Borough of Munhall.

certain conditions it would be impossible to comply with the requirements as to clear space between the ground and the bottom of the board and at the same time limit the height as provided, as, for instance, where the ground slopes rapidly away from and below the street. The contrary of these claims on behalf of the plaintiff is contended for by the Borough. No evidence showing the actual or approximate expense incidental to inspection was offered. In Taylor Borough vs. Postal Tel. Co., 16 Sup. Ct., 346, the Court says:

“It is a mistake, therefore, to measure the reasonableness of the charge by the amount actually expended by the City for a particular year to the particular purposes specified in the affidavit."

In the same case it is said that the reasonableness of the fee is not a question for the jury, and that whether or not the fee is so obviously excessive as to lead irresistibly to the conclusion that it is exacted as a return for the use of the street, or is imposed for revenue purposes, is a question for the Court. The Court cites several cases in support of its conclusions.

We refer to these cases, although they arose out of controversies respecting license fees for the use of streets, not of private property, because they state the basis on which the right to exact license fees rests and recognize the power of the Court to prevent the exercise of purely arbitrary regulations. That the Council of the Borough of Munhall is actuated by proper motives in undertaking to prevent the acts specified and complained of in the preamble and ordinance can not be questioned, nor do we understand that plaintiff questions the motive. The claim is that, conceding the power to legislate, the ordinance under consideration is an arbitrary, not a reasonable, exercise of power. Insofar as the license fee of fifty cents per foot is concerned, we are compelled to say that in the light of the evidence as to what is actually done in the way of inspection, the charge is excessive. The requirements as to height of boards and space between the ground and the bottom of the board are, in the opinion of the Court, so unreasonable as to justify a Court of Equity in enjoining the Borough from enforcing them. It is in evidence and not contradicted, that the limitation to nine feet from the surface of the ground will prevent the use of such boards, if the standard length of posters is to be used. It is apparent that if the top of the board can not be more than nine feet above the surface and the bottom not less than three feet, the face of the board can not exceed six feet in height, and if any space is occupied by moldings at top and bottom, not more than five feet, or just one-half the standard height is available for bill posting. It is also clear that if a billboard is erected on ground sloping down from the street and is limited to nine feet in height above the surface and that in no case can the base be less than three feet above the grade of the street curb, the result may be to prevent the use of such ground for the erection of boards. For if the ground slopes rapidly the allowance of three feet above the curb level may not leave more than a foot or two, and possibly no space whatever, above the base line. This is such an arbitrary restriction upon the lawful use of private property as will render the ordinance void. As to boards erected on ground level with or above the grade of the street, we think the requirement of three feet of space between the surface of the ground and the bottom of the board is, to say the least, unnecessary, and we regard the height at which it is proposed to erect the boards involved in this controversy as ample for the protection of the morals, and the maintenance of the good order of the community, insofar as same can be protected by regulations in respect to space between the ground and the base of billboards. That the structures proposed to be erected are not danger

Pittsburgh Poster Advertising Company vs. Borough of Munhall.

ous to life or limb is shown by the evidence. Upon this point the testimony of Mr. Steele and Mr. Norington leaves no doubt.

As respects the requirement that fifty cents per lineal foot be paid in advance without reference to the time that the application for license is filed, we think it inequitable, but would not be disposed to hold that this alone was sufficient to justify the striking down of the ordinance.

But taking the ordinance as a whole we think its provisions are arbitrary and unreasonable, both as respects those who may be engaged in the business of erecting and maintaining billboards and the owners of real estate who may be willing to lease their land for the purposes of bill posting.

The ordinance applies to the entire Borough and all properties in it, whether the boards be erected along the line of the street or far back from it. It applies to what are known as "billboards," and does not purport to apply to fences that may be used as billboards, though the fence be along the line of the street. We do not deem it necessary to discuss the matter at greater length.

Counsel for plaintiff has requested the Court to find certain facts and conclusions of law, as follows:

First. Plaintiff is a corporation, created by and existing under the laws of the Commonwealth of Pennsylvania, and is extensively engaged in the business of bill posting and advertising in and throughout this County.

Second. On and for some time prior to July 31st, 1914, plaintiff owned three certain signboards in the Borough of Munhall erected on ground leased to plaintiff for the purpose, and used by plaintiff for the posting, of advertisements in connection with its business.

Third. Said signboards were safe and substantial and had not been used for the purpose of posting advertisements which were detrimental to the morals of the citizens or good order of the defendant Borough.

Fourth. Plaintiff tore down said signboards and proceeded to re-erect the same and proposed to use said new signboards for the posting of commercial advertisements containing no objectionable matter. After the foundation had been erected, on July 31st, 1914, the work was stopped by defendant and further erection prevented until plaintiff should fully comply with the terms of the ordinance of said Borough, Exhibit "A" of the bill, and to that end defendant proposed to use the power and authority of the said Borough and its police force to enforce said ordinance and inflict a penalty or fine upon plaintiff, its officers or employees. Whereupon this bill was filed.

Fifth. The new signboards were to be erected by competent workmen on plans and specifications which would produce safe and substantial structures. These plans and specifications were standard among bill posters throughout the United States. The plans provided for a clear space between the bottom of the boards and the ground of not less than eighteen inches, which would enable the Borough authorities to more readily discover and prevent the commission of a nuisance in the rear of the signboards.

Sixth. A large part of plaintiff's business is the hanging of commercial posters on signboards. The size of said posters has become uniform and standard throughout the United States, and to properly hold and display said posters, the signboards must have a face of at least eleven feet in height, including an allowance for frame and molding, and, if enforced, the ordinance, Exhibit "A," would destroy a large part of plaintiff's business.

Seventh. From the testimony produced by plaintiff which was not controverted by defendant, the signboards may be readily inspected by a