Imagens das páginas

shows that § 3 was held to be unconstitutional, but it fails to point out the part of that instrument with which it is in conflict. Counsel for defendants in error attach to their brief a copy of the opinion rendered in the case which they say is reported in Ohio Law Bulletin of May 15, 1905 (Crawford v. Taylor, 27 Ohio C. C. 245). That court holds that § 3 is "unconstitutional because

and overflowed, salt marsh, and tide lands in the state. The facts are fully stated in the opinion of the above case, and we do not repeat them here. Hagar, whose lands were about to be sold to pay his assessment for the drainage, contended that his property was being taken without due process of law, inasmuch as the assessment was made without opportunity to him to be 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 I 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.

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 conbeen in operation for more than half a cen- sidered is the claim that the territorial tury, and which have at one time or anoth- | statute authorizing the issue of an attacher been before the courts for construction ment against the property of a nonresident and judgment. For more than half a cen- defendant in the case of an alleged fraudutury county roads have been established on lent disposition of property is repugnant to petition of freeholders resident of the vicin- the 14th Amendment to the Constitution of ity of the proposed road. County line roads the United States, and in conflict with the have been established on the petition of the civil rights act. The law of the territory, inhabitants along the line. Roads have it is said, in case of an attachment, for the been vacated on the petition of twelve free- cause stated, against a resident of the terholders residing in that part of the county. ritory, requires the giving of a bond by the The law requires the petitions to be so plaintiff in attachment as a condition for signed. Petitions for free turnpikes and the issue of the writ, whilst it has been roads under the one-mile assessment act construed to make no such requirement in must be signed by resident freeholders, and the case of an attachment against a nonremonstrances against the latter must be resident. This, it is argued, is a discrimsigned by the same class. It is useless to ination against a nonresident, does not afcite other statutes for public improvements ford due process of law, and denies the that contain like discrimination in favor of equal protection of the laws. The elemenresidents of the state. It is not invidious tary doctrine is not denied that, for the in the eyes of the Constitution to classify purposes of the remedy by attachment, the owners of property into residents and non- legislative authority of a state or territory residents. The policy of the legislature may classify residents in one class and nonthat first cares for our own citizens is not residents in another; but it is insisted that, vicious, and, if it accords to residents of where nonresidents' are not capable of sepaOhio rights and privileges not conferred up- rate identification from residents by any on residents of another state, the general as- facts or circumstances other than that they sembly is simply performing a duty pecul- are nonresidents, that is, when the fact iarly within its authority. We therefore of nonresidence is their only distinguishing have divorce laws requiring the applicant feature, the laws of a state or territory for divorce to be a bona fide resident of cannot treat them to their prejudice upon Ohio one year next before filing his or her that fact as a basis of classification.' When petition. If a suitor is a nonresident, he the exception thus stated is put in juxtamay be required to give security for costs; position with the concession that there is and if one who has been a resident removes such a difference between the residents of from the county or state while his action a state or territory and nonresidents as to is pending he may be required to give se- justify their being placed into distinct curity for costs. So with regard to our ex- classes for the purpose of the process of emption laws. They are for the benefit of a attachment, it becomes at once clear that certain class of our own citizens, and for the exception to the rule which the arguthe purpose of exemptions our own citizens ment attempts to make is but a denial, by are classified. The list of illustrations indirection, of the legislative power to might be extended if necessary. One more classify which it is avowed the exception will be sufficient. It is found in our at- does not question. The argument, in subtachment laws. Nonresidence of the state stance, is that, where a bond is required is made a ground for attachment, and that. as a prerequisite to the issue of an attoo, without bond, while bond is required tachment against a resident, an unlawful if the writ is asked on other grounds. The discrimination is produced by permitting discrimination against nonresidents by such process of attachment against a nonresilegislation was the subject of judicial de- dent without giving a like bond. But the termination in Central Loan & T. Co. v. difference between exacting a bond in the Campbell Commission Co. 173 U. S. 84, 43 L. one case and not in the other is nothing ed. 623, 19 Sup. Ct. Rep. 346. The fifth sec- like as great as that which arises from altion of the syllabus reads: "That the terri- lowing processes of attachment against a torial statute [Oklahoma] authorizing the nonresident and not permitting such proissue of a writ of attachment against the cess against a resident in any case. That property of a nonresident defendant is not the distinction between a resident and a repugnant to the 14th Amendment to the nonresident is so broad as to authorize a Constitution." 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

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 embraces 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 attachment is allowed to be issued which justifies the classification. As, however, the classification depends upon residence and non residence, 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.

COMMONWEALTH of Massachusetts




(188 Mass. 348.)

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

(June 20, 1905.)

REPORT 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 defendant.

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;

The judgment of the Circuit Court is reversed, injunction dissolved, and the petition, with its amendments, is dismissed.

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 attractiveness of the park, justifies the expenditure of public money to pay compensation for property rights thereby injured, see Knowlton v. Willlams, 47 L. R. A. 314.

As to validity of regulation of use of bill

Davis, Ch. J., and Crew and Summers, JJ., concur.

Forster v. Scott, 136 N. Y. 583, 18 L. R. A.
543, 32 N. E. 976; Atty. Gen. v. Willian
(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; Peo-
ple ex rel. Manhattan Sav. Inst. v. Otis, 90
N. Y. 48; Sawyer v. Davis, 136 Mass. 239,
49 Am. Rep. 27; Train v. Boston Disinfect-
ing Co. 144 Mass. 523, 59 Am. Rep. 113, 11
N. E. 929.

Mr. M. J. Sughrue, for the Common


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.

System v. Buffalo, 75 App. Div. 31, 77 N. Y. Supp. 987; Atty. Gen. v. Williams (Knowlton v. Williams) 174 Mass. 476, 47 L. R. A. 314, 55 N. E. 77.

The legislature may delegate to boards power to make rules, and provide that they may be enforced by suitable penalties. Brodbine v. Revere, 182 Mass. 598, 66 N. E. 607; Opinion of Justices, 138 Mass.


Com. v. Plaisted, 148 Mass. 375, 2 L. R. A. 142, 12 Am. St. Rep. 566, 19 N. E. 224; Com. v. Ellis, 158 Mass. 555, 33 N. E. 651: Re Vandine, 6 Pick. 187, 17 Am. Dec. 351; Re Nightingale, 11 Pick. 168.

The rule regulates the use of the property, which is a proper exercise of police power.

Com. v. Roberts, 155 Mass. 281, 16 L. R. A. 400, 26 N. E. 522; Rideout v. Knox, 148 Mass. 368, 2 L. R. A. 81, 12 Am. St. Rep. 560, 19 N. E. 390.

Public parks are created and maintained at great public expense to contribute to the health and pleasure of the community; and any rule reasonably tending to promote public health, or to beautify public grounds, is a reasonable exercise of the power delegated to a board of park commissioners.

Rochester v. West, 164 N. Y. 510, 53 L. R. A. 548, 79 Am. St. Rep. 659, 58 N. E. 673; Com. v. McCafferty, 145 Mass. 384, 14 N. E. 451; Re Wilshire, 103 Fed. 620; Gunning System v. Buffalo, 75 App. Div. 31, 77 N. Y. Supp. 987.

Any use of private property which materially interferes with the public comfort, except in those cases where the reasonable requirements of the owner afford him justification or excuse, is a nuisance.

Persons whose property is affected by such restrictions have no right to compensation, because one of the incidents to property is a condition that it shall not be so used as unreasonably to impair the interest of the community.


The legislature may very appropriately recognize and deal with the effect upon people in general of unrestrained scenic advertising, and take measures for its proper repression.

Train v. Boston Disinfecting Co. 144 Mass. 523, 59 Am. Rep. 113, 11 N. E. 929; Langmaid v. Reed, 159 Mass. 409, 34 N. E. 593; Newton v. Joyce, 166 Mass. 83, 55 Am. St. Rep. 385, 44 N. E. 116.

Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519; Com. v. Harris, 101 Mass. 29: Com. v. Perry, 139 Mass. 198, 29 N. E. 656. An advertisement upon private land any-signboard was 40 feet in width and 72 feet where may be a public nuisance. high with black letters on an orange ground. The capital letters were 3 feet 3 inches high and 2 feet 10 inches wide. It is not contended that the sign was indecent or immoral, or of a nature to frighten man or beast, or in any way to cause bodily injury by falling or being blown against persons or vehicles using the way. The defendant is in the advertising business. It had purchased from the owner of the land the right to maintain the sign until October 1, 1905. and had been paid to keep up the advertisement until December 30, 1904. Its contract with the owner of the land began on October 29, 1903, and its contract to maintain the sign was made in September, 1903. The park way was established in 1899. The rule or regulation charged to have been broken by maintaining the sign was established on August 20, 1903. The same sign had been in the same location before the establishment of the park way, and ever since. The rule or regulation forbids the erection. maintaining, or display upon any land or the outside of any building of any commercial or business sign, poster, or advertisement within such distance of any publie park or park way in care of the commission

Com. v. Gilbert, 160 Mass. 157, 22 L. R. A. 439, 35 N. E. 454; Ex parte Casinello, 62 Cal. 538; Re Flaherty, 105 Cal. 558, 27 L. R. A. 529, 38 Pac. 981; Moses v. United States, 16 App. D. C. 428, 50 L. R. A. 532; Com. v. Parks, 155 Mass. 531, 30 N. E. 174; Com. v. Colton, 8 Gray, 488.

There is no vested right in individuals to be exempt from police regulations.

A person who has a contract for advertising, which this enactment makes illegal. has no more sacred right to be immune from such regulations than the one who owns the property upon which the contract was to be performed.

Salem v. Maynes, 123 Mass. 372; Hughes v. Wamsutta Mills, 11 Allen, 201; Com. v. Overby, 80 Ky. 208, 44 Am. Rep. 471: Baily v. De Crespigny, L. R. 4 Q. B. 180.

Re Wilshire, 103 Fed. 620; Rochester v. West, 164 N. Y. 510, 53 L. R. A. 548, 79

Barker, J., delivered the opinion of the court:

The complaint upon which the defendant was found guilty was for a violation of the rules and regulations made by the metropolitan park commission under Stat. 1903. chap. 158, p. 121. The act charged was maintaining a business sign on land near enough to the Revere Beach Park Way to render the words of the sign plainly visi ble to the naked eye of persons in the park way. It appears that the sign was an advertisement of a household utensil. The

as shall render the words, figures, or de- | Allen, 530; Hubbard v. Taunton, 140 Mass. vices of the sign, poster, or advertisement 467, 5 N. E. 157; Atty. Gen. v. Williams plainly visible to the naked eye within the (Knowlton v. Williams) 174 Mass. 476, park or park way, without the written per- 479, 480, 47 L. R. A. 314, 55 N. E. 77. The mission of the commission; save that the question here is not of the power of the state rule is not to be construed to prevent the to expend money, or to lay taxes to promote owner or occupant of land, building, or tene- esthetic ends, or to regulate the use of ment from displaying or maintaining there- property with a view to promote such ends. on one sign or advertisement for business or It is of the right of the state by such regucommercial purposes, in size not larger than lations to deprive the owner of property of 15 inches by 20 feet, and relating exclusive- a natural use of that property without givly to the property on which it may be placed, ing compensation for the resulting loss to or to the business thereon conducted, or to the owner. Probably no one would care at the person conducting the same. The stat present to deny that without compensation ute provides that the commission, and also "the possession and enjoyment of all rights the officers having charge of public parks are subject to such reasonable conditions as and park ways, “may make such reasonable may be deemed by the governing authority rules and regulations respecting the display of the country essential to the safety, health, of signs, posters, or advertisements in or peace, good order, and morals of the comnear to and visible from public parks and munity." Field, J., in Crowley v. Christenpark ways intrusted to their care, as they sen, 137 U. S. 86, 89, 34 L. ed. 620, 622, 11 may deem necessary for preserving the ob- Sup. Ct. Rep. 13. Beyond the purposes jects for which such parks and park ways named, there are many others of a public are established and maintained." Stat. 1903, nature, the promotion of which may inchap. 158, § 1, p. 121. The counsel for the volve the taking or damaging of the propprosecution asserts that public parks and erty of individuals, and as to which there park ways are created and maintained to well may be differences of opinion as to contribute to the health and pleasure of the whether the state must afford compensation community. It has been said that they "are if such loss or damage is inflicted. One of established for the use and enjoyment of the them is the education of youth. Probably people while seeking pleasure and recreation all will agree that, judged by any fair standas well as at other times." No doubt the ard, the promotion of education stands upon principal and controlling object for which a higher plane than the promotion of espublic 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


« AnteriorContinuar »