Mid-State Advertising Corp. v. Bond

• Decision Date: 27 April 1937
• Court: New York Court of Appeals Court of Appeals
• Parties: MID-STATE ADVERTISING CORPORATION v. BOND.

274 N.Y. 82

8 N.E.2d 286

MID-STATE ADVERTISING CORPORATION

v.BOND.

Court of Appeals of New York.

April 27, 1937.

Proceeding in the matter of the application of the Mid-State Advertising Corporation, for a mandamus order against John A. Bond, as Fire Marshal and Superintendent of Buildings of the City of Troy. From an order of the Appellate Division (249 App.Div. 681, 291 N.Y.S. 441), which reversed on the law an order of the Special Term granting a motion for a peremptory order of mandamus to compel the defendant to issue to petitioner a permit for the erection of certain billboards on vacant lots of land in the city of Troy, and denied the motion, the Mid-State Advertising Corporation appeals.

Order of Appellate Division reversed, and order of Special Term affirmed.

FINCH, J., dissenting. Appeal from Supreme Court, Appellate Division, Third department.

John H. Boderick, of Troy, for appellant.

Frank S. Parmenter, Corp. Counsel, of Troy (John P. Judge, of Troy, of counsel), for respondent.

LOUGHRAN, Judge.

Appellant applied to the respondent, as Superintendent of Buildings of the City of Troy, for permits to erect billboards for general advertising purposes on property of the appellant in that city. The application was denied under an ordinance of the city which provides: ‘It shall be unlawful to construct or erect any billboard and/or signboard within the corporate limits of the City of Troy, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such real property or of merchandise kept for sale upon such premises. The provision of this Ordinance shall not apply to sky signs, as provided for in section 172 of the Building Code, erected or to be erected upon buildings three stories or more in height.’

A peremptory order of mandamus directing issuance of the permits so applied for was granted by the Special Term. The Appellate Division reversed on the law. The single question presented to us is that of the constitutional validity of the foregoing ordinance.

We think the ordinance is void on its face. It is not an attempt by zoning to exclude billboards or other advertising signs from localities where such devices might mar the beauty of natural scenery or distract travelers on congested city streets. Even were we to assume that outdoor advertising on private property within public view may without compensation be restricted by law for cultural or aesthetic reasons alone, this prohibition, which includes all land in the city of Troy, without definition of the structures prescribed or other standard of regulation, cannot be sustained consistently with fundamental constitutional principles. N.Y.Const. art. 1, § 6; U.S.Const. Fourteenth Amendment, § 1; cf. People ex rel. Winebugh Adv. Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17,21 L.R.A.(N.S.) 735;People ex rel. Publicity Leasing Co. v. Ludwig, 218 N.Y. 540, 113 N.E. 532;People v. Rubenfeld, 254 N.Y. 245, 248, 249, 172 N.E. 485;Perlmutter v. Greene, 259 N.Y. 327, 182 N.E. 5. See In re Opinion of Justices, 232 Mass. 605, 124 N.E. 319;General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799; Freund, Police Power, § 182; Larremore, Public Aesthetics, 20 Harvard Law Review, 35.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

FINCH, Judge (dissenting).

The city of Troy, through its duly chosen representatives, has enacted an ordinance prohibiting the erection of billboards or signboards within the city limits, except for the purpose of advertising the sale of the real property upon which they are placed or of merchandise kept for sale upon the premises. Excepted, also, are sky signs erected upon buildings three stories or more in height. This court is about to declare the ordinance void as being unconstitutional.

It is not unreasonable for a municipality or a state to desire to beautify its streets or highways. Legislation designed to eliminate advertising signs which tend to mar such beauty and annoy travelers upon the highway should not be deemed arbitrary.

Such a restriction upon the rights of a property owner is not a taking of private property for public use for which the city must compensate the owner. There has been no taking of private property. There has been merely a restriction on the use of the property retained by the property owner. ‘This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. * * * [The owner] is restrained; not because the public have occasion to make the like use, or to make any use of the property, or to take any benefit or profit to themselves from it; but because it would be a noxious use, contrary to the maxim, sic utere tuo, ut alienum non laedas. It is not an appropriation of the property to a public use, but the restraint of an injurious private use by the owner, and is therefore not within the principle of property taken under the right of eminent domain.’ Ch. J. Shaw in Commonwealth v. Alger, 7 Cush.(Mass.) 53, 85.

Every restriction upon the use of property imposed under the police power deprives the owner of some right and is in that sense an abridgment of rights in property without making compensation. Nevertheless, such restrictions, where reasonable, have been held not to deprive the owner of property in violation of the Constitution. The property remains in the possession of the owner. The state does not appropriate it or make use of it. Thus it is not a taking of private property for public use for a state to authorize encroachment by party walls in cities (Jackman v. Rosenbaum Co., 260 U.S. 22, 43 S.Ct. 9, 67 L.Ed. 107), to fix the height of buildings (Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923), to exclude from residential areas offensive trades (Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900), or to establish zoning areas (Zahn v. Board of Public Works of City of Los Angeles, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. Restrictions upon the use of property are limited by the due process clause of the Federal and State Constitutions. Legislation that is unreasonable, arbitrary, or capricious cannot be sustained, but laws which have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, satisfy requirements of due process, and where the law applies equally to all property owners there is no denial of equal protection of the laws. We are inclined to overlook the fact that save for the three exceptions above mentioned, namely, a taking of property, a compliance with the clauses of due process, and an equal protection of the laws, the legislative power of a state of the United States is absolute and unlimited, and every act of the Legislature must be presumed to be in harmony with the Constitution until the contrary is made clearly to appear.

The appellant refers us to cases in this state and others which have held that statutes restricting the display of advertising signs are unconstitutional if they are based solely upon aesthetic grounds. People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N.Y. 126, 88 N.E. 17,21 L.R.A.(N.S.) 735;In re Opinion of Justices, 232 Mass. 605, 124 N.E. 319;Varney & Green v. Williams, 155 Cal. 318, 100 P. 867,21 L.R.A.(N.S.) 741, 132 Am.St.Rep. 88. Although such a law may have been unwarranted in New York in 1909, when the Wineburgh Case was decided, it does not follow that it is unconstitutional today. The Constitution, it is true, does not change with the times, nor does an emergency or unusual circumstances warrant a disregard of constitutional provisions. A determination of what is due process, aside from procedural matters, however, depends upon the reasonableness of the legislation. Circumstances, surrounding...