and overflowed, salt marsh, and tide shows that § 3 was held to be unconstitutionlands in the state. The facts are fully al, but it fails to point out the part of that stated in the opinion of the above case, and instrument with which it is in conflict. we do not repeat them here. Hagar, whose Counsel for defendants in error attach to lands were about to be sold to pay his assess- their brief a copy of the opinion rendered in ment for the drainage, contended that his the case which they say is reported in Ohio property was being taken without due proc- | Law Bulletin of May 15, 1905 (Crawford ▾. ess of law, inasmuch as the assessment was Taylor, 27 Ohio C. C. 245). That court made without opportunity to him to be holds that § 3 is "unconstitutional because heard respecting it; that it was made with it unjustly discriminates between different out notice to him; and that the reclaiming applicants for such improvement with resstatute contained no provision for such no- pect to costs." And near the close of the tice or hearing, and it was therefore invalid. opinion it is said, in comparing § 3 with § He claimed that notice and opportunity to 2 of the act, "This would appear to be unbe heard were essential to render any pro- equal legislation, an unjust discrimination ceeding "due process of law," which may against the fair-minded citizen, and violative lead to the deprivation of life, liberty, or of the Bill of Rights." This attack on the property. The opinion by Justice Field con- law is very general, and therefore very indeftains an able discussion of what constitutes inite. But a word about the comparison of "due process of law." On page 710, 111 U. the two sections is proper in this connection. S., page 572, 28 L. ed., page 668, 4 Sup. Ct. Section 2 (p. 154) allows anyone who was Rep., referring to the provision of the Cali- assessed for the original construction of the fornia statute for fixing the value of the ditch to apply to the commissioners for its lands by assessors appointed, in order to as-cleaning out, and he is required to give bond certain a just basis for assessment, the for the payment of costs if the application learned justice says: "The officers, in is not granted. Section 3 authorizes any reestimating the value, act judicially; and insident owner of land which was assessed for most states provision is made for the correc- the construction of the ditch to make the tion of errors committed by them through sworn statement to the auditor of the necesboards of revision or equalization, sitting at sity of the cleaning out, and he is not redesignated periods provided by law to hear quired to give bond. In comparison, why complaints respecting the justice of the as- not say 2 is invalid because it requires a sessments. The law in prescribing the time bond while § 3 requires none? We presume when such complaints will be heard gives all that it is competent for the legislature to rethe notice required; and the proceeding by quire such bonds in all cases, or not require which the valuation is determined, though it them in any case. It may provide for bonds may be followed, if the tax be not paid, by a in certain proceedings and not require them sale of the delinquent's property is due in others. We know of no constitutional process of law. In some states, instead of regulation or prohibition on the subject. It a board of revision or equalization, the as- is altogether a matter of legislative discresessment may be revised by proceedings in tion, and not a matter of constitutional law. the courts, and be there corrected if er- To proceed under § 3 is a simple and less roneous, or set aside if invalid; or objections expensive method. Sections 1 and 19 of the to the validity or amount of the assessment same act provide for like summary action. may be taken when the attempt is made to Section 1 provides for the removal of obenforce it. In such cases all the opportunity structions, and § 19 (p. 161), for the repair is given to the taxpayer to be heard res- and restoration of flood gates. In a proceedpecting the assessment which can be deemed ing to remove obstructions under § 1, no bond essential to render the proceedings due pro- is required, while a proceeding under cess of law. In Davidson v. New Orleans, § 19 requires the giving of a bond. 96 U. S. 97, 24 L. ed. 616, this court decided Both proceedings are of a summary this precise point." The entire opinion of nature, and the law is not invalid beJustice Field is valuable, and decisive of the cause a bond is required in one and not in question before us. Therefore we safely con- the other. clude that § 3 does not jeopardize the property rights of the landowners, and deprive them of due process of law. The section is intended as a summary method of restoring water courses, and the agents to accomplish it are certain county officers, whose functions are administrative in character, as is the case in very many other provisions for the assessment of property.

It is also urged against the law that it discriminates as between resident and nonresident landowners. Under § 3 the resident landowner only is authorized to make the sworn statement, while under § 2 and other sections of the general ditch law landowners, without regard to residence, may petition for the improvement. This distinction is considered by the circuit court The judgment entry of the circuit court as another unconstitutional discrimination.

sidered is the claim that the territorial statute authorizing the issue of an attachment against the property of a nonresident defendant in the case of an alleged fraudulent disposition of property is repugnant to the 14th Amendment to the Constitution of the United States, and in conflict with the civil rights act. The law of the territory, it is said, in case of an attachment, for the cause stated, against a resident of the territory, requires the giving of a bond by the plaintiff in attachment as a condition for the issue of the writ, whilst it has been construed to make no such requirement in the case of an attachment against a nonresident. This, it is argued, is a discrimination against a nonresident, does not afford due process of law, and denies the equal protection of the laws. The elementary doctrine is not denied that, for the purposes of the remedy by attachment, the legislative authority of a state or territory may classify residents in one class and nonresidents in another; but it is insisted that, where nonresidents' are not capable of sepa

If this view is sound, it unsettles many old | that we freely quote from it as follows: statutes of this state, many of which have "The only remaining contention to be con. been in operation for more than half a century, and which have at one time or another been before the courts for construction and judgment. For more than half a century county roads have been established on petition of freeholders resident of the vicinity of the proposed road. County line roads have been established on the petition of the inhabitants along the line. Roads have been vacated on the petition of twelve freeholders residing in that part of the county. The law requires the petitions to be so signed. Petitions for free turnpikes and roads under the one-mile assessment act must be signed by resident freeholders, and remonstrances against the latter must be signed by the same class. It is useless to cite other statutes for public improvements that contain like discrimination in favor of residents of the state. It is not invidious in the eyes of the Constitution to classify owners of property into residents and nonresidents. The policy of the legislature that first cares for our own citizens is not vicious, and, if it accords to residents of Ohio rights and privileges not conferred up-rate identification from residents by any on residents of another state, the general assembly is simply performing a duty peculiarly within its authority. We therefore have divorce laws requiring the applicant for divorce to be a bona fide resident of Ohio one year next before filing his or her petition. If a suitor is a nonresident, he may be required to give security for costs; and if one who has been a resident removes from the county or state while his action is pending he may be required to give security for costs. So with regard to our exemption laws. They are for the benefit of a certain class of our own citizens, and for the purpose of exemptions our own citizens

are

facts or circumstances other than that they are nonresidents, that is, when the fact of nonresidence is their only distinguishing feature, the laws of a state or territory cannot treat them to their prejudice upon that fact as a basis of classification.' When the exception thus stated is put in juxtaposition with the concession that there is such a difference between the residents of a state or territory and nonresidents as to justify their being placed into distinct classes for the purpose of the process of attachment, it becomes at once clear that the exception to the rule which the argument attempts to make is but a denial, by indirection, of the legislative power to classify which it is avowed the exception does not question. The argument, in substance, is that, where a bond is required as a prerequisite to the issue of an attachment against a resident, an unlawful discrimination is produced by permitting process of attachment against a nonresident without giving a like bond. But the difference between exacting a bond in the one case and not in the other is nothing like as great as that which arises from allowing processes of attachment against a nonresident and not permitting such process against a resident in any case. That the distinction between a resident and a nonresident is so broad as to authorize a classification in accordance with the sug The language of Justice White, render-gestion just made is conceded, and, if it were ing the opinion, so well meets every con- not, is obvious. The reasoning, then, is tention made in this branch of our case, that, although the difference between the

classified. The list of illustrations might be extended if necessary. One more will be sufficient. It is found in our attachment laws. Nonresidence of the state is made a ground for attachment, and that. too, without bond, while bond is required if the writ is asked on other grounds. The discrimination against nonresidents by such legislation was the subject of judicial determination in Central Loan & T. Co. v. Campbell Commission Co. 173 U. S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep. 346. The fifth section of the syllabus reads: "That the territorial statute [Oklahoma] authorizing the issue of a writ of attachment against the property of a nonresident defendant is not repugnant to the 14th Amendment to the Constitution."

the attachment is allowed to be issued which justifies the classification. As, however, the classification depends upon residence and nonresidence, and not upon the cause of action, the attempted distinction is without merit." It seems that the court was unanimous in the above opinion, and it deserves both our respect and confidence. The statute in question may be unwise and ill-designed, but its amendment or repeal is for the lawmaking power, and not for the courts.

two classes is adequate to support the al- | something in the cause of action for which lowance of the remedy in one case and its absolute denial in the other, yet that the distinction between the two is not wide enough to justify allowing the remedy in both cases, but accompanying it in one instance by a more onerous prerequisite than is exacted in the other. The power, however, to grant in the one and deny in the other of necessity emhraces the right, if it be allowed in both, to impose upon the one a condition not required in the other, for the lesser is necessarily contained in the greater power. The misconception consists in conceding, on the one hand, the power to classify residents and nonresidents for the purpose of the writ of attachment, and then from this concession to argue that the power does not exist, unless there be

The judgment of the Circuit Court is reversed, injunction dissolved, and the petition, with its amendments, is dismissed. Davis, Ch. J., and Crew and Summers, JJ., concur.

MASSACHUSETTS SUPREME JUDICIAL

COMMONWEALTH of Massachusetts

v.

BOSTON ADVERTISING COMPANY.

(188 Mass. 348.)

Forbidding the use of land near a park or park way for advertising purposes amounts to a taking of it for public use, for which compensation must be made.

(June 20, 1905.)

RE
EPORT by the Superior Court for Suffolk
County for the opinion of the Supreme
Judicial Court after verdict in plaintiff's
favor in a proceeding against defendant for
violation of the rules and regulations of the
park commission against the maintenance
of advertising signs. Judgment for defend-

ant.

The facts are stated in the opinion.

Mr. Joseph H. Soliday, for defendant: Depriving an owner of property of any profitable use of that property is a "taking" or "appropriation," and clearly within the constitutional prohibition.

Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155; Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328;

NOTE. For a case in this series holding that the restriction of the height of buildings adjacent to a park, when made for the benefit of the public by promoting the beauty and attrac tiveness of the park, justifies the expenditure of public money to pay compensation for property rights thereby injured, see Knowlton v. Williams, 47 L. R. A. 314.

As to validity of regulation of use of bill

COURT.

Forster v. Scott, 136 N. Y. 583, 18 L. R. A. 543, 32 N. E. 976; Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 47 L. R. A. 314, 55 N. E. 77; People v. Green, 85 App. Div. 400, 83 N. Y. Supp. 460; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People ex rel. Manhattan Sav. Inst. v. Otis, 90 N. Y. 48: Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27; Train v. Boston Disinfecting Co. 144 Mass. 523, 59 Am. Rep. 113, 11

N. E. 929.

Mr. M. J. Sughrue, for the Commonwealth:

Penal statutes, though to be construed strictly as a general rule, yet are to receive such a construction as will conform to the intention of the legislature.

Com. v. Loring, 8 Pick. 370.

The plain intent of the act in question is to prevent or control the intrusion of obnoxious signs upon the sight of the public engaged in the enjoyment of the natural beauties of a park. It is a question of law for the court whether any given sign is "near" within the meaning of the statute.

&

Fall River Iron Works Co. v. Old Colony F. River R. Co. 5 Allen, 221; Boston & P. R. Corp. v. Midland R. Co. 1 Gray, 340. Under the power to regulate, the require

boards for advertising purposes, see, in this series, Crawford v. Topeka, 20 L. R. A. 692, and Chicago v. Gunning System, 70 L. R. A.

As to forbidding circulation of advertising matter in streets, see People v. Armstrong, 2 L. R. A. 721.

As to prohibiting casting of circulars, hand bills, etc., into vestibules of dwellings, see Philadelphia v. Brabender, 58 L. R. A. 220.

ment to obtain a permit or license is free | Am. St. Rep. 659, 58 N. E. 673; Gunning from legal objections.

Persons whose property is affected by such restrictions have no right to compensation, because one of the incidents to prop-tract with the owner of the land began on erty is a condition that it shall not be so used as unreasonably to impair the interest of the community.

There is no vested right in individuals to the outside of any building of any commerbe exempt from police regulations.

467, 5 N. E. 157; Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 479, 480, 47 L. R. A. 314, 55 N. E. 77. The question here is not of the power of the state to expend money, or to lay taxes to promote esthetic ends, or to regulate the use of property with a view to promote such ends. It is of the right of the state by such regulations to deprive the owner of property of a natural use of that property without giving compensation for the resulting loss to the owner. Probably no one would care at present to deny that without compensation "the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community." Field, J., in Crowley v. Christensen, 137 U. S. 86, 89, 34 L. ed. 620, 622, 11 Sup. Ct. Rep. 13. Beyond the purposes named, there are many others of a public nature, the promotion of which may involve the taking or damaging of the property of individuals, and as to which there well may be differences of opinion as to whether the state must afford compensation if such loss or damage is inflicted. One of them is the education of youth. Probably all will agree that, judged by any fair standard, the promotion of education stands upon a higher plane than the promotion of es

as shall render the words, figures, or de- | Allen, 530; Hubbard v. Taunton, 140 Mass. vices of the sign, poster, or advertisement plainly visible to the naked eye within the park or park way, without the written permission of the commission; save that the rule is not to be construed to prevent the owner or occupant of land, building, or tenement from displaying or maintaining thereon one sign or advertisement for business or commercial purposes, in size not larger than 15 inches by 20 feet, and relating exclusively to the property on which it may be placed, or to the business thereon conducted, or to the person conducting the same. The stat ute provides that the commission, and also the officers having charge of public parks and park ways, "may make such reasonable rules and regulations respecting the display of signs, posters, or advertisements in or near to and visible from public parks and park ways intrusted to their care, as they may deem necessary for preserving the objects for which such parks and park ways are established and maintained.” Stat. 1903, chap. 158, § 1, p. 121. The counsel for the prosecution asserts that public parks and park ways are created and maintained to contribute to the health and pleasure of the community. It has been said that they "are established for the use and enjoyment of the people while seeking pleasure and recreation as well as at other times." No doubt the principal and controlling object for which public parks and park ways are established | thetic culture or enjoyment, and would the is that of pleasure. They are distinctively better justify the imposition of a burden and chiefly pleasure grounds. So far as without compensation. But no one would they incidentally serve to promote health by contend that the state could authorize the affording the means of being in the open air taking of land for a schoolhouse without and the sunlight, or of taking healthful exer- providing compensation for the owner. In a cise, the presence or absence of signs upon very recent case this court, in dealing with the neighboring lands is immaterial. We a statute requiring street railway companies think, therefore, that the well-being of the to transport school children at reduced rates ordinary person who uses a public park or of fare, has held that, if it appeared that the park way can never be so far affected by enforcement of the act would cause expense the visibility of signs, posters, or advertise- which the carrier must bear or put upon ments placed on other ground as to injure other patrons, we should be obliged to hold his health. No doubt their presence there that there was a taking of property without may hide from him fine views, or may turn due process of law. Com. v. Interstate into a disagreeable ensemble what otherwise Consol. Street R. Co. 187 Mass. 436, 73 N. E. would be a pleasing outlook, or the sign or 530. If the police power, technically so poster or advertisement may be itself ugly. called, will not justify a taking of property or, if not so, may be displeasing because of without compensation to promote the eduincongruity. At most, the presence of signs, cation of youth, it cannot justify such a posters, and advertisements upon lands or taking for the promotion of merely esthetic buildings near a public park or park way is purposes. Therefore, if the rules of the coman offense against good taste, and in that mission amount to a taking of property, as way alone detracts from the pleasure only of no compensation is provided, they cannot be the frequenters of such places. We agree held valid. The plain and intended purthat the promotion of the pleasure of the pose of the rule is to prohibit the use of people is a public purpose, for which public land near public parks and park ways for money may be used and taxes laid, even if advertising. This has come to be an ordithe pleasure is secured merely by delighting nary and remunerative use of lands near one of the senses. Higginson v. Nahant, 11 | largely traveled streets, park ways, public