John H. Swisher Son, Inc. v. Johnson, (1941)
Court: Supreme Court of Florida
Number:
Visitors: 11
Judges: WHITFIELD, J.:
Attorneys: Rinehart, Coulter Conroy, Crawford May, Francis P. Conroy and J.T.G. Crawford, Whitaker Brothers, for appellant.
J. Tom Watson, Attorney General, Donald Carroll, Assistant Attorney General, Thomas M. Shackleford, Jr., and Richard W. Ervin, M.N. Arfaras, for appellee.
George Couper Gibbs, Knight Knight, Worth, Bivens Lively Julius F. Stone, as amicus curiae.
STATEMENT
The bill of complaint herein contains allegations in substance and effect as follows:
"1. Plaintiff John H. Swisher Son, Inc. (hereinafter called Swisher) is a corporation organized and existing under the laws of the State of Ohio and is duly authorized to transact business in the State of Florida. Said Swisher is engaged in the business of manufacturing cigars in the State of Florida and selling its product throughout the State of Florida and elsewhere. . . .
"2. Plaintiff Frank Jones is a citizen and resident of Duval County, Florida, and is the owner of land in said county upon which he has granted to said Swisher the right to erect and maintain one of its said highway signboards as hereinafter set forth.
"3. The defendant Thomas A. Johnson is the duly authorized and acting Chairman of the State Road Department of the State of Florida, and as such is clothed with the power and charged with the function and duty of administering and enforcing the certain statute of the State of Florida entitled:
" 'An Act to Regulate Outdoor Advertising Outside of the Corporate Limits of Cities and Incorporated Towns in Sight of Public Highways; to Provide for Licensing Persons Engaged in the Business of Outdoor Advertising and for the Issuance of Permits for
Advertisements and Advertising Structures; and to Provide for the Removal of Advertising and Advertising Structures Illegally Posted, Displayed, Erected, Used or Maintained; to Prescribe the Powers and Duties of Certain Officers Relating Thereto; and to Prescribe Penalties for Violations of this Act,' being Chapter 20446, approved May 26, 1941.
"4. Said statute, among other things, provides that: 'No advertisement, advertising sign, or advertising structure shall be constructed, erected, used, operated or maintained . . . within 15 feet of the outside boundary of a public highway. . . .' (Sec. 9); and that any such sign is 'a public and private nuisance and shall forthwith be removed, obliterated or abated by the State Chairman. . .' meaning the said Chairman of said State Road Department (Sec. 15); and that 'any person owning or maintaining any such sign, whether as principal, agent or employee, . . . shall be guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine of not less than Ten Dollars nor more than Three Hundred Dollars; and such person shall be guilty of a separate offense for each month during any portion of which any violation of this Act is committed, continued or permitted.' (Sec. 16).
"5. Said Swisher owns and maintains in the State of Florida 287 advertising signboards within 15 feet of the outside boundaries of public highways. All said signboards are of uniform size and construction and display solely the words: 'King Edward Cigars.' All said signboards measure 3 feet 10 inches by 5 feet 10 inches, made of vitreous porcelain enamel, and are securely fastened between galvanized iron posts which are firmly imbedded in the ground in cement
to a sufficient depth to prevent falling or being blown down by winds of high velocity. None of said signboards are of a value of as much as $100.00. A photograph depicting one of said signboards in its actual present location is attached hereto, marked exhibit 1 and made a part hereof.
"6. Said Swisher has placed all its said signboards under uniform written agreements (except as to consideration) with owners of lands abutting public highways.
"7. Plaintiff Frank Jones is the owner in fee simple of a parcel of land on United States Highway No. 1 six and two-tenths miles south of the City of Jacksonville on which one of said signboards has long heretofore been and is being maintained by said Swisher; that he receives a valuable consideration annually for said use of said land; and that said land is what is commonly known as cut-over pine land and is not useful for agricultural or other revenue producing purposes; that the consideration paid by said Swisher, and additional sums received from other users of highway signboard advertising, constitutes the sole source of revenue from said land.
"8. Plaintiff Swisher has invested in its said signboards the sum of to-wit, $7,175.00.
"9. None of said signboards are dangerous to the public by falling or being blown down, or by being constructed of such material or in such manner as to endanger life or property, or by increasing any fire hazard, or by obstructing the view of travellers on said highways, or by having printed or displayed on them any obscene characters or words tending to injure or offend public morals.
"10. Unless restrained by a court of competent jurisdiction, the defendant will, as he is required to do by said statute, on and after September 23, 1941, proceed to remove or obliterate all signboards, and thereby deprive plaintiffs of their property without compensation, contrary to and in violation of Section 12 of the Declaration of Rights of the Constitution of the State of Florida, and Section 1 of the Fourteenth Amendment to Constitution of the United States; and will deny plaintiffs the right of acquiring possession and protecting property guaranteed to them by Section 1 of the Declaration of Rights of the Constitution of the State of Florida; and will impair the obligation of said contract between plaintiffs, contrary to and in violation of Section 17 of the Declaration of Rights of the Constitution of the State of Florida and Section 10 of Article I of the Constitution of the United States, and will abridge plantiff Swisher's right of freedom of speech, contrary to and in violation of Article I of the Amendments to the Constitution of the United States; wherefore plaintiffs severally allege that the provision of said statute, prohibiting, under the penalties therein provided, the use, operation and maintenance of said signboards within 15 feet of said public highways, as applied to these plaintiffs, is void and of no effect.
"11. Plaintiffs bring this suit as representatives of others sim
Filed: Dec. 19, 1941
Latest Update: Mar. 02, 2020
Summary: 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, o
Summary: 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..
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In my opinion the provisions of sub-paragraph (a) of Section 9 offends against Section 12 of the Declaration of Rights of our Constitution.
ADAMS, J., concurs.
Source: CourtListener
