General Outdoor Advertising Co., Inc. v. Department of Public Works

• Decision Date: 10 January 1935
• Citation: 193 N.E. 799,289 Mass. 149
• Parties: GENERAL OUTDOOR ADVERTISING CO., Inc., et al. v. DEPARTMENT OF PUBLIC WORKS, and fourteen other cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 149

193 N.E. 799

GENERAL OUTDOOR ADVERTISING CO., Inc., et al. v. DEPARTMENT OF PUBLIC WORKS, and fourteen other cases.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1935

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Case Reserved from Supreme Judicial Court, Suffolk County.

Fourteen separate suits in equity in the Supreme Judicial Court for Suffolk County by the General Outdoor Advertising Company, Inc., and others, by Mary J. Donnelly, by the O. J. Gude Company, by the Hathaway Advertising Company, and by Charles I. Brink, against the Department of Public Works, were consolidated for hearing with a suit by the General Outdoor Advertising Company, Inc., and others, against Samuel Hoar and others. From an interlocutory decree denying a second motion to recommit the case to the master, plaintiffs appeal, and, from an interlocutory decree overruling a demurrer, defendants appeal, and the case was reserved for determination by the full court.

Interlocutory decree overruling demurrer affirmed, and interlocutory decree denying the second motion to recommit the report confirmed, and the original and supplemental reports of the master also confirmed and bills dismissed.

L. A. Mayberry, G. L. Mayberry, J. B. Abrams, S. Abrams, and A. L. Brown, all of Boston, and W. E. Beehan, of New York City, for plaintiffs.

J. S. Eastham, Sp. Asst. Atty. Gen., S. Hoar, L. Wheeler, Jr., and G. K. Gardner, all of Boston, for defendants.

RUGG Chief Justice.

These are fifteen suits in equity. The plaintiffs are resident and nonresident individuals, firms and corporations, all licensed under G. L. (Ter. Ed.) c. 93, § 29, and engaged in the business of outdoor advertising. That business is the procurement of locations on private property within public view for signs, billboards and other devices which the plaintiffs erect and maintain and upon which they rent space for advertising purposes to manufacturers, merchants and others, many of whom are doing business in other states as well as within the commonwealth. The defendants in fourteen suits are the commissioner and associate commissioners who have supervision and control of the department of public works of the commonwealth. See G. L. c. 16, §§ 1, 2; c. 93, § 29; St. 1927, c. 297; G. L. [Ter. Ed.] c. 16, § 2; c. 93, § 29. The one of these suits by the plaintiff Brink relates to an electrical sign on the roof of a building near the State House and the Common in Boston; the others relate to billboards and advertising devices in different parts of the commonwealth. In the remaining suit the selectmen and other officers of the town of Concord are the defendants. The object of the several suits is to obtain decrees to the effect that all and certain parts of the rules and regulations promulgated by the department of public works and a certain by-law adopted by the town of Concord restricting outdoor advertising upon private property within public view are void, unconstitutional and of no effect. There are no averments concerning advertising by the plaintiffs within public ways or in public places, nor as painted or affixed upon any rock, tree or pole; therefore, those subjects need not be considered. See Commonwealth v. McCafferty, 145 Mass. 384, 14 N.E. 451; Commonwealth v. Haffer, 279 Mass. 73, 180 N.E. 615; Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815. There are adequate allegations of impending property damage to the plaintiffs likely to arise from the enforcement of the rules and regulations and the by-law. Shuman v. Gilbert, 229 Mass. 225, 227, 228, 118 N.E. 254, L.R.A. 1918C, 135, Ann.Cas. 1918E, 793. There are prayers for full injunctive relief to restrain the defendants from interfering in any way with the business of the plaintiffs. Injunctions were issued, pending the trial and final disposition of the suits, against the disturbance of any existing signs, billboards and other advertising devices of the plaintiffs.

The decision of the principal issues rests upon the meaning of article 50 of the Amendments to the Constitution, the scope of statutes enacted under the power conferred by that amendment and the validity of rules and regulations promulgated by the department of public works and of a by-law adopted by Concord pursuant to such statutes. Other questions arise respecting the action of the commissioners of the department of public works and as to the conduct of the hearings by the master to whom the cases were referred.

1.Article 50 of the Amendments to the Constitution (hereafter called article 50), ratified by the people on November 5, 1918, is in these words: ‘ Advertising on public ways, in public places and on private property within public view may be regulated and restricted by law.’ This amendment declares a fundamental principle as to the powers of government. It does not contain a specification of details. It is to be interpreted as a part of the Constitution of a state sovereign in all its prerogatives except those surrendered to the federal government under the Constitution of the United States of America and its amendments. It is a grant from the people. It is to be construed in the light of the circumstances under which it was framed, the causes leading to its adoption, the imperfections hoped to be remedied, and the ends designed to be accomplished. Tax Commissioner v. Putnam, 227 Mass. 522, 524, 116 N.E. 904, L.R.A. 1917F, 806. Its words are to be given their natural and obvious sense according to common and approved usage at the time of its adoption. Attorney General v. Methuen, 236 Mass. 564, 573,129 N.E. 662; Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23; Hodges v. United States, 203 U.S. 1, 16, 27 S.Ct. 6, 51 L.Ed. 65. It is permissible to examine the proceedings of the convention by which the amendment was proposed in order to understand the attendant conditions and the attitude of the members, although not for the purpose of controlling the plain meaning of the language. Loring v. Young, 239 Mass. 349, 368, 132 N.E. 65, and cases cited. United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 53 S.Ct. 42, 77 L.Ed. 175.

Plenary power to regulate and restrict advertising on private property within public view as well as in public ways and in public places is conferred upon the General Court by article 50. The words used to confer that power are of broad import. Plainly, advertising of the kind there described has been designated by constitutional mandate as a subject of regulatory and restrictive legislation. No restraints on that power are expressed in the article. Every consideration for the promotion of the public interests which in view of its sweeping terms may reasonably be given weight by a lawmaking body may be taken into account and be a factor in framing regulations or restrictions. It appears from the Debates of the Constitutional Convention of 1917-1918, vol. III, pages 621 to 672, that the resolution for this amendment as originally presented included also the power to prohibit, as well as to regulate and restrict, outdoor advertising; on page 661 the meaning of the words ‘ regulate’ and ‘ restrict’ as including for practical purposes the power to prohibit was pointed out. The power to prohibit was ultimately omitted. Those debates show that one, if not the main, purpose of the proponents of article 50 was to set aside and overcome the effect of the decision in Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601, 602,69 L.R.A. 817, 108 Am.St.Rep. 494, with all its implications as to deficiency of legislative control over outdoor advertising on privately owned land within public view. That case was a complaint for the violation of a rule made by the metropolitan park commission pursuant to an enabling statute forbidding a business sign within such distance of any public park or parkway as to render its words plainly visible to the naked eye within the park or parkway without the written permission of the commission, save that the rule did not apply to a sign by the owner or occupant of land relating exclusively to the property on which it was placed or the business conducted thereon or the person conducting the same. The decision by a majority of the court was that since ‘ At most, the presence of signs, posters, and advertisements upon lands or buildings near a public park or parkway is an offense against good taste, and in that way alone detracts from the pleasure only of the frequenters of such places,’ the ordinary and remunerative use of lands for such purpose could not be taken without compensation under ‘ the provisions of our Constitution’ and that the enforcement of the rule would amount to such a taking and hence was invalid. The decision rests upon an interpretation of the Constitution of this commonwealth and contains no reference to the Constitution of the United States.

The power ‘ To regulate Commerce with foreign Nations, and among the several States' is conferred upon Congress by article 1, § 8, of the Constitution of the United States. It was said respecting that power in United States v Hill, 248 U.S. 420, 425, 39 S.Ct. 143, 145, 63 L.Ed. 337:‘ That regulation may take the character of prohibition, in proper cases, is well established by the decisions of this court. Lottery Case [ 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492] * * *; Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523,43 L.R.A. (N. S.) 906, Ann.Cas. 1913E, 905; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann.Cas. 1917B, 1168; Clark...