Opinion of the Justices

• Court: New Hampshire Supreme Court
• Citation: Opinion of the Justices, 169 A.2d 762, 103 N.H. 268 (N.H. 1961)
• Decision Date: 19 April 1961
• Parties: OPINION OF THE JUSTICES.

Page 762

169 A.2d 762

103 N.H. 268

OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

Submitted April 3, 1961.

Answer Returned April 19, 1961.

Upton, Sanders & Upton, Concord, furnished a memorandum in favor of affirmative answers.

Henry C. Newell, Representative Ward 7, furnished a memorandum in support of negative answers.

The following resolution adopted by the House of Representatives on March 23 1961, was filed in this court on March 28, 1961:

'Whereas, House Bill No. 24 as amended, entitled An Act to restrict outdoor advertising on the interstate highway system, is pending before the House of Representatives, and

'Whereas, questions have been raised concerning the constitutionality of said bill, therefore be it

'Resolved, that the Justices of the Supreme Court be respectfully requested to give their opinion on the following questions of law:

'1. Would any constitutional provisions be violated by restricting outdoor advertising as provided in House Bill No. 24 as amended?

'2. Without in any way limiting the generality of question No. 1, would the enactment of House Bill No. 24, as amended, for the purpose of securing funds offered by the United States, as disclosed in said Bill and amendment, violate any constitutional provisions?

'And Be It Further Resolved, that the Speaker of the House transmit ten copies of these Resolutions and ten copies of House Bill No. 24, with amendment as proposed, to the Clerk of the Supreme Court for consideration by said Court.'

The following answer was returned:

To the House of Representatives:

The undersigned Justices of the Supreme Court make the following reply to your request for advice upon the following questions:

'1. Would any constitutional provisions be violated by restricting outdoor advertising as provided in House Bill No. 24 as amended?

'2. Without in any way limiting the generality of question No. 1, would the enactment of House Bill No. 24, as amended, for the purpose of securing funds offered by the United States, as disclosed in said Bill and amendment, violate any constitutional provisions?'

The criticism of the bill centers upon the proposition that it is not a valid exercise of the police power of the State. The purpose of the bill is declared in the preamble to be as follows: 'It is hereby declared to be the policy of this state and in the public interest to provide for maximum visibility along the interstate system and connecting roads or highways, to prevent unreasonable distraction of operators of motor vehicles, to prevent confusion with regard to traffic lights, signs or signals or otherwise interfere with the effectiveness of traffic regulations, to promote maximum safety, comfort and well-being of users of the interstate highway system and to preserve and enhance the natural scenic beauty or the aesthetic features of the interstate highway system and adjacent areas.'

While the purposes as above stated are not determinative (Opinion of the Justices, 99 N.H. 528, 530, 114 A.2d 514), they are nevertheless entitled to weight in determining the constitutionality of the proposed law. Velishka v. City of Nashua, 99 N.H. 161, 165, 106 A.2d 571, 44 A.L.R.2d 1406. The decisive question is whether the act has some rational tendency to promote the objects it seems to advance. Chung Mee Restaurant Co. v. Healy, 86 N.H. 483, 171 A. 263.

At the outset we must recognize that interstate highways are built with taxpayers' money to promote the general welfare and safety of the public by affording means of swift, safe and pleasurable travel for all, and not to secure commercial advantages for a limited number of advertisers. Whatever value billboards along such highways possess is due to the presence of the public whose tax money has constructed the highways. Kelbro, Inc. v. Myrick, 113 Vt. 64, 67-68, 30 A.2d 527. The safety, well-being and legitimate enjoyment of the public in the use of the highways is the paramount consideration of the bill.

The police power, the function of which is to insure this, is of broad and valid application. Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 55 L.Ed. 112; Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 99 L.Ed. 27. Furthermore, if it is to serve its purpose in the face of the magnitude and rapidity of the changes occurring today, it must be of a flexible and expanding nature to protect the public against new dangers and to promote the general welfare by different methods than those formerly employed. With vehicles hurtling along at the speed which characterizes travel on interstate or so-called super highways, an instant's inattention or confusion may be disastrous. We need not labor the point that anything beside the road which tends to district or confuse the driver of a motor vehicle directly affects public safety. Signs of all sizes, shapes and colors, designed expressly to divert the attention of the driver and occupants of motor vehicles from the highway to objects away from it, may reasonably be found to increase the danger of accidents, and their regulation along highways falls clearly within the police power.

Another consideration bearing on the constitutionality of the bill rests on the fact that New Hampshire is peculiarly dependent upon its scenic beauty to attract the hosts of tourists, the income from whose presence is a vital factor in our economy. That the general welfare of the State is enhanced when tourist business is good and affected adversely when it is bad, is obvious. It may thus be found that whatever tends to promote the attractiveness of roadside scenery for visitors relates to 'the benefit and welfare of this state' and may be held subject to the police power. See Maritime Packers v. Carpenter, 99 N.H. 73, 77, 105 A.2d 38, 41.

It seems unnecessary to decide here whether aesthetic considerations alone furnish ground for the exercise of the police power as is increasingly stated by modern authorities (Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98), though denied under earlier...