274 N.Y. 82 | NY | 1937
Lead Opinion
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 proscribed or other standard of regulation, cannot be sustained consistently with fundamental *85
constitutional principles. (N.Y. Const. art. 1, § 6; U.S. Const. 14th Amend. § 1. Cf. People ex rel. Wineburgh Adv. Co. v.Murphy,
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.
Dissenting Opinion
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 *86 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, 86.)
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.,
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,
Moreover, People ex rel. Wineburgh Adv. Co. v. Murphy
(
Can it be said that it is unreasonable to decide that a city without ugly and distracting billboards is a more attractive and a more desirable place to dwell in than a city so disfigured? In a number of cases the courts have held that statutes and ordinances limiting or prohibiting billboards are constitutional. (Perlmutter v. Greene,
"The [police] power is not limited to regulations designed to promote public health, public morals or public safety or to the suppression of what is offensive, disorderly or unsanitary but extends to so dealing with conditions which exist as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity." (Matter of Wulfsohn v.Burden,
Recently Massachusetts held, despite an earlier decision to the contrary, that prohibitions against, and restrictions upon, the display of billboards are constitutional *89
although they can be justified only upon aesthetic grounds. (General Outdoor Adv. Co. v. Dept. of Public Works,
It is objected by some that, while the prohibition of advertising signboards would be lawful if applied to a residential district alone, such prohibition is not lawful if extended to business districts. Perhaps the prohibition is more desirable in a residential area than in a business district. Perhaps factories, stores and the industrial sections of a city naturally tend to be ugly, but it does not follow that business may not be carried on amid more pleasant surroundings. Certainly any city enacting such an ordinance would present a more pleasing picture to the eye than one plastered with blatant signboards. Psychologists and business men themselves tell us that in pleasant surroundings work is done more efficiently. A city might well conclude that it is more likely to attract commercial enterprises and permanent residents if it improves its appearance; that its residents will gain financially by such an improvement; or that the elimination of distracting and annoying billboards will add to the physical and mental well-being of its inhabitants. Such a conclusion is not unreasonable. The billboard eyesore is in many ways akin to annoying sounds and undesirable odors which undoubtedly can be prohibited. Although such restrictions may be more desirable in residental areas, nevertheless, their extension to business districts cannot be termed unreasonable. It is said that in business districts such signs do not mar the beauty of natural scenery or distract travelers on the city streets. *90 Beauty in such areas may not be so obvious, but that does not prevent the city from restraining additional ugliness.
The order of the Appellate Division should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, O'BRIEN and RIPPEY, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in opinion; HUBBS, J., taking no part.
Ordered accordingly.