St. Louis Gunning Advertising Co. v. City of St. Louis

DISSENTING OPINION.

GRAVES, J.

— I do not concur in the majority opinion, because so to do, is, in my humble judgment, lending sanction to the confiscation of private property for aesthetic purposes. However aesthetic may become our tastes, there is no reason for striking down the constitutional rights to own and use private property, so long as such ownership and use does not do violence to public safety, public health, public morals, or to the broader term “general welfare.”

Under the police power, the State and the different agencies of the State may provide reasonable rules for *208the preservation of the public safety, the public health, the public morals, and the general welfare, although such rules, regulations, laws or ordinances may in a way trespass upon the absolute use and ownership of private property. This constantly increasing and indefinable power (the police power) has never yet been determined to be the special champion of aesthetic tastes. In this sphere of action it has been denied admission. Upon this point, Chief Justice Vickers for the undivided Supreme Court of Illinois, in the case of Haller Sign Works v. Physical Culture Training School, 249 Ill. 463, has well said: “The courts of this country have with great unanimity held that the police power cannot interfere with private property rights for purely aesthetic purposes.” The cases are so thoroughly reviewed by the Illinois Court, that we refer to that opinion for a collation and analysis 'thereof. But a slight examination of the subject shows that it has remained for civic leagues, rather than the courts, to contend that the police power may be extended to pure aesthetic considerations. Whenever the present case is analyzed, we believe it will be seen that there has been an unwarranted extension of the police power. The ordinance in question strikes at private property far beyond the usual rule for the exercise of the police power.

To my mind, the ordinance strikes at the use of a structure rather than the character of the structure. This I gather from the very definition of a billboard as given in the ordinance. By the legislative definition we are bound. The ordinance says: “The term billboard within the meaning of this section shall include all structures of whatever material the same may be constructed, which are erected, maintained or used for the public display of posters, painted signs, pictures or other pictorial or reading matter, except that the term billboard shall not be applied to such signs as *209are attached to the roofs or walls of buildings, as provided for in section eighty-one of this ordinance. ’ ’

Observe the language, “all structures, of whatever material . . . which are erected, maintained, or used for the public display of posters,” etc.

If this definition does not condemn the structure “of whatever material” upon the sole ground of the. use to which it is to he put, rather than upon the fact of its being safe, then I have studied English awry. If this definition has reference to public morals, I fail to see it. If it refers to public health, I fail to see it. If it refers to public safety or the general welfare, I fail to see it.

■Yet the lawmaking power of St. Louis has said to this court by its own definition what structure it had in mind. It hasn’t said a word in the definition about public safety, public health, public morals or general welfare, the only wards of the police power. Instead of so doing it has adopted the aesthetic view of a civic league or confederation of civic leagues, and undertakes to condemn structures on the basis of the use to which they are to he put.

The use of safe, private structures for advertising purposes is a lawful use. Such lawful use cannot he stricken down to please the eye. Of course, under the police power the character of the advertising could he scrutinized. Further, the character of the structure as to public safety, health and morals may be regulated, but such are the limits of the police power.

To illustrate the ordinance under question, a few examples or supposed cases will not be out of order. If I own a corner lot twenty feet wide, I can maintain and put up a brick or stone wall on the building line, provided I do not use, or propose to use such brick or stone wall for the painting thereon of display signs or advertisements. If I build the same stone or brick wall and advertise my mercantile, real estate or other *210legitimate business thereon, I would have to tear it down. Counsel for the city in oral argument admitted as much. Such only serves to demonstrate that the ordinance strikes at the use of the structure rather than at the structure itself. In fact, the very words of the definition of billboards so indicate. In the illustration, the party owning the lot and building the brick or stone wall has the use of all his property and private rights are-not invaded. In case he declared to the building commissioner that he expected to paint signs upon it, the right to use his property up to the building line is refused him. In both cases, the structures are safe. In both cases they are to be and are constructed of the same material. In both cases the public morals are equally well subserved. Nor do the cases differ as to the public health. Tet the building of one wall is permitted and the other refused, and this solely upon the question of use, which is the very life of the definition given in the ordinance. ■ Strength of structures, safety of structures, healthfulness of structures are all made subservient to the aesthetic idea, that signs upon structures should not be permitted.

No one can read these ordinances in their entirety without, being convinced that the thing stricken at is advertising by means of printed or posted signs. In every line can be seen the carefully prepared design to exterminate the business by arbitrary conditions and license fees and taxes. If the business was malum in se, such ordinances might stand, but not on the theory that the police power is broad enough to encourage the aesthetic tastes of' a city, however large or small.

We shall not undertake to quote from the great mass of cases which are directly opposed to the majority opinion in this case, but will content ourselves with a few excerpts from some of the leading ones.

In Bryan v. Chester, 212 Pa. St. 259, the Supreme Court of Pennsylvania said: “Although the-police *211power is a broad one, it is not without limitation, and a secure structure which is hot an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat, and then prohibited. [Yates v. Milwaukee, 10 Wall. 497; 1 Dill, on Munc. Corp., sec. 374.] It is doubtless within the power of the city to prohibit the erection of insecure billboards or other structures, to require the owners to maintain them in a secure condition, and to provide for their removal at the expense of the owners in case they become dangerous. Perhaps regulations may be made with reference to the manner of construction so as to insure safety, but the prohibition of the erection of structures upon the lot line, however safe they might-be, would be an unwarranted invasión of private rights.”

The Kansas Supreme Court, Crawford v. Topeka, 51 Kansas 762, thus expresses the rule: “In what can the erection of a safe structure for advertising purposes endanger the public safety any more than a like structure for some other lawful purpose? .Although the police power is a broad one, it is not without limitation and a structure that is not an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat and then prohibited. It is doubtless within the power of the city to prohibit the erection of insecure billboards or other structures, and to require the owners to maintain them in a secure condition, and to provide for their removal by the owner in case they become dangerous. Eegulations may be made with reference to the manner of construction, so as to insure safety, but the prohibition of the erection of structures designed for advertising purposes, however safe they may be, would be an unwarranted invasion of private right and is without legislative authority.”

In Fisher Co. v. Woods, 187 N. Y. 90, the court, among other things, said: “But the Legislature cannot arbitrarily infringe upon the liberty or property rights of any person living under the Constitution, nor pre*212vent him from adopting and following any lawful profession, trade or industrial pursuit not injurious to the community that he may see fit; nor prevent him from making contracts with reference thereto. To justify the State in interposing its authority in behalf of the public, it must appear that the interest of the public generally, as distinguished from those of a particular class, require such interference and that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The Legislature may not under the guise of protecting the public interest, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. The legislative determination as to what is a proper exercise of the police power is subject to the supervision of the court and in determining the validity of an act it is its duty to consider not only what has been done under the law in a particular instance, but what may be done and by virtue of its authority.”

And to the direct point involved in this ordinance, is the' case of State v. Whitlock, 149 N. C. 542, where the Supreme Court of North Carolina said: “It is undoubtedly within the power of the corporate authorities of the city of Asheville to prohibit the erection of insecure billboards or other structures along the edge of the public streets, or so near as to be a menace, to require the owners to maintain all structures so located in a secure condition, and to provide for inspection and removal at the owner’s expense, if condemned as dangerous. The city authorities may also adopt regulations as to the manner of construction of billboards, so as to insure safety to the passers-by; but the prohibition of structures upon the lot line, however safe they may be, is an unwarranted invasion of private right, and is so held to be by all the courts which have passed upon the precise question as we are now advised. In the case of City of Passiac v. Paterson Bill Posting *213Co., it is held that a city ordinance requiring that signs or billboards shall be constructed not less than ten feet from the street line is a regulation not reasonably necessary for the public safety and cannot be justified as an exercise of the police power. [72 N. J. L. 285; 111 Am. St. 676.] In support of the decision is cited Crawford v. Topeka, 51 Kan. 756, 20 L. R. A. 692, 37 Am. St. 323, and Commonwealth v. Boston Advertising Company, 188 Mass. 348, 69 L. R. A. 817, 108 Am. St. 494, cases directly in point. In that case the New Jersey court says: ‘The very fact that this ordinance is directed against signs and billboards only, and not against fences, indicates that some consideration other than the public safety led to its passage.’ The court attributes the adoption of the ordinance to aesthetic considerations, rather than to an exclusive regard for the public safety, and says: ‘Aesthetic considerations are a matter of luxury and indulgence, rather than of necessity, and it is necessity alone which justifies the exercise of the police power to take private property without compensation.’ See, also, People v. Green, 85 App. Div. 400, 83 N. Y. Supp. 460; Bill Posting Co. v. Atlantic City, 71 N. J. L. 73. The ordinances considered by the Kansas, New Jersey, and Massachusetts courts are perhaps more nearly indentical to the one in question than in any other cases reported; but the same principles of law concerning the constitutionality of such ordinances are stated with force in Chicago v. Gunning System, 214 Ill. 628, as well as in Letts v. Kessler, 54 Oh. St. 73; Bostock v. Sams, 95 Md. 400; Bryan v. Chester, 212 Pa. St. 259, 108 Am. St. 870; and Koblegard v. Hale, 60 W. Va. 37, 116 Am. St. 868. In Bryan v. Chester, supra, the Supreme Court of Pennsylvania say, at page 262 of 212 Pa. St., 108 Am. St. 870: ‘It is doubtless within the power of the city to prohibit the erection of insecure billboards or other structures, to require the owners to maintain them in a secure condition, and to *214provide for their removal at the expense of the owners in case they become dangerous. Perhaps regulations may be made with reference to the manner of construction so as to insure safety, but the prohibition of the erection of structures upon the lot line, however safe they might be would be an unwarranted invasion of private right.’ There- is nothing in the case of Rochester v. West, 164 N. Y. 510, 53 L. R. A. 548, 79 Am. St. 659, relied on by the State, which conflicts with this view, as in that case the power of the city, to regulate the height of billboards was the only question considered.”

When Brown, J., for the North Carolina Court, said, as above quoted, “But the prohibition of structures upon the lot line, however safe they may be, is an unwarranted invasion of private right, and is so held by all the courts which have passed upon the precise question,” he evidently spoke, from investigation of authorities, for such is the case-law. It is not a random statement. The overwhelming weight of the case law is against the ruling of our court upon this question. The effect of our opinion is to hold that such structures must be fifteen feet from the lot line without any regard to the character of the structure. For the sake of the argument it might be granted that the city can regulate the height of the board, by specifying methods of construction, and say that there should be a vacant space at the bottom where that is necessary, but upon what theory can it be said that you must go back fifteen feet to erect it, provided a safe structure is to be erected? The city could say that such structures shall not be erected- of inflammable material, or above a certain reasonable height and be made absolutely safe, but when it goes further, as in this case, it is a confiscation of private property pure and simple, and a violation of both the State and the Federal Constitutions.

The reasonable enjoyment of one’s real estate is *215a vested right, which cannot be interfered with arbitrarily. The constitutional guaranty of the protection of all private rights extends equally to the enjoyment and possession of lands, and arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private land, is the taking of private property without due process of law. Such taking is violative of the Constitutions, both State and Federal. He who owns the soil, owns it to the sky and to the center of the earth, and he has the right to use it as he sees fit, so long as such use is not such as to cripple the special wards of the police power, which wards we have heretofore named.

The same question came up as to the building code of the city of Cleveland, and in the city court Judge Me Gannon rendered a written opinion in the case of City of Cleveland v. Giese et al. This is not a court of final resort, but we quote Ms language because it so aptly describes the conditions of the ordinances • we have under consideration. After setting out the ordinances and some general discussion of the principles of law applicable, he says: “It remains to determine whether in view of these "well recognized principles the Cleveland ordinance is valid. These questions are pertinent: Is the ordinance adapted to the ostensible object of securing public safety? Is it an attempt under the guise of police regulation to invade the rights of persons and property when it has no effect upon public safety? Under the pretense of safe guarding the lives and limbs of the people, is the real purpose to remove from public view those posters and advertisements which flaunt themselves before the public so as to become objectionable to public sentiment ? Is it an appeal to the aesthetic taste of the people rather than the honest exercise • of the police powers to safeguard the people? The ordinance limits the height of all billboards to Hour sheets and not more than ten feet over all.’ Outside of the fire *216limits it forbids the location of a billboard within •fifteen feet of the street line, and also limits it to the building line of the next adjoining building. This is either an appeal to the aesthetic or is an attempt to keep the billboards from obstructing the view of adjoining property owners. Such limitation placed upon structures of a different character would be plainly illegal. As well might the Building Code provide that no one shall build a house nearer the street than the front line of his neighbor’s buildings. The ordinance does not in any plain, appreciable and appropriate manner tend towards safeguarding the public against injury. Other structures similarly built and placed are not forbidden, but if they have paper or other material attached thereto with letters or illustrations painted or printed thereon they become billboards and are sought to be prohibited. It is not the material attached thereto with letters and illustrations painted or printed thereon that can in any event endanger the public safety. It is the material construction upon which the advertising matter is placed that possibly may become dangerous. It is said by the Supreme Court of North Carolina, £It is an unwarranted invasion of private right and is so held to be by all the courts which have passed.upon the precise question, as we are now advised.’ ”

The description here given is the case at bar from start to finish. The ordinances upon their face show that there is no honest attempt to exercise the police power for public safety, public health or public morals. As stated before, no one can read the drastic provisions of these ordinances without concluding that they strike at the paper upon the wall, rather than the wall itself. Under the guise of the police power it is sought to strike down a legal business, because the aesthetic notions of a city have reached a point where the use of private property is to give way to the idea of beautifying a city. Beautiful cities are to *217be desired, but tlie constitutional rights of citizens must not be trampled under foot to secure them. As long as the advertising .is not offensive to public morals, the structure cannot be condemned on the sole ground of its use.

As said by one of the judges in the numerous, but recent billboard cases, “An ordinance depriving any man of the unrestricted use of his property for the benefit of his neighbor is unconstitutional and void.” So, too, it should be said of the general public, unless the use strikes at the wards of the police power.

In People ex rel. M. Weinberg Adv. Co. v. Murphy, 195 N. Y. 126, the New York Court of Appeals thus speaks to at least one point involved in the case at bar: “But the more serious objection to the ordinance is, in the fact that the absolute prohibition is wholly confined to sky signs, as they are defined therein. The physical danger to the public does not arise from the advertisements. The advertisement, announcement, or direction bears no relation to the safety of the structure itself. It is not the structure therefore that is prohibited. Would a structure of any description be more dangerous if it bore the words “Omega Oil”? Could a city enact and enforce an ordinance limiting the height of all buildings therein which are painted a particular color and leave unrestricted the height to which a building could be erected so long as it was unpainted or painted a color other than the particular one specified? Such an ordinance would bear evidence in itself that it was not enacted for any purpose within the police power. It appears from the ordinance in question that it was not erected in the interest of the public health, morals or safety, or to conserve the public peace, order, and general welfare, and the ordinance, so far as it relates to sky signs, is arbitrary and unauthorized.”

So in the case at bar. It is not the structure which is prohibited, but the use of the structure. And *218so too, in the case at bar, the ordinances upon their face bear evidence that they were not enacted in good faith for any purpose within the police power. Under the ordinance in question one might erect a solid board fence of a certain height upon his lot line, but if after its erection he concludes to advertise his business thereon, he must move it back fifteen feet. Every line of the ordinances indicate the promulgation of ¿esthetic views, rather than the legitimate exercise of the police power. In such case, the courts should not hesitate to condemn the entire ordinance, unless we desire to face about and say that under the broad, indefinable police power private property can be taken for ¿esthetic reasons. Courts so far have not gone thus far, nor am I willing to go so far. The majority opinion does not in terms disclaim the general trend of authority upon this question, yet in effect it does so do. Such opinion does not in terms say that a structure should be torn .down because signs are painted thereon, yet in effect such is the holding. Private property or the use- of private property cannot be taken for any such purpose. The Supreme Court of Massachusetts in Commonwealth v. Boston Adv. Co., 188 Mass. 348, has well expressed our views in this language:

“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 and 89.] Beyond the purpose named there are many others of a public nature, the promotion of which may involve the taking or damaging of property of individuals, and as to which there may be the differences of opinion as to whether the State must afford compensation if such loss or damage is inflicted.
*219“One of them is the education of youth. Probably all will agree that judged by a fair standard the promotion of education stands upon a higher plane' than the promotion of aesthetic culture or enjoyment, and would the better justify the imposition of a burden without compensation. But no one would contend that the State could authorize the taking of land for a school house without providing compensation for the owner. In a very recent case, this court in dealing with a statute requiring street railway companies to transport school children at a reduced rate of fare has held that if it appeared that the enforcement of the act would cause expense which the carrier must bear or put upon other patrons, we should be obliged to hold that there was a taking of property without due process of law. [Commonwealth v. Interstate Consolidated Street Railway, 187 Mass. 436.] If the police power technically so called will not justify a taking of property without compensation to promote the education of youth, it cannot justify such taking for the promotion of merely aesthetic purposes.
“Therefore if the rules of the commission amount to a taking of property, as no compensation is provided, they cannot be held valid. The plain and intended purpose of the rule is to prohibit the use of land near public parks and parkways for advertising. This has come to be an ordinary and remunerative use of lands near largely travelled streets, parkways, public parks, railroads ' and other places frequented in numbers by the public. It is as natural a use of such lands as is the use of storefronts and show windows for the display of goods kept for sale, or for other modes of advertising. It resembles the placing of advertising pages on each side of the literary portion of a periodical, or the placing in street cars or railway stations of advertisements disconnected with the business of transportation. All these at present are usual, common and profitable uses of property, of *220which, every one sees daily numerous instances.
“In the opinion of a majority of the court the ‘rules or regulations established by the commission so interfere with the use of property as to amount to a taking of property for public use, and, as no compensation is provided for, the rules are void, because obnoxious to the provisions of our Constitution.”

Courts are not bound by mere forms. They should go to the substance and from that determine the legislative purpose. In Mugler v. Kansas, 123 U. S. 623, the United States Supreme Court has well said: ‘ ‘ The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty, indeed are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to these objects, nor is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

Many other cases could be cited, but we desist.

The ordinances before us have been drawn to obviate the appearance of evil, but those undertaking to tread forbidden pastures will leave their footprints. It is argued that they fall within the police powers of the city, yet the very definition given of a billboard bespeaks aesthetics, rather than public safety, public morals, public health or general welfare. They argue that upon their face they appear reasonable regulations, yet when read as a whole, it is apparent from the unreasonable restrictions placed that the purpose was the suppression of a lawful business rather than the reasonable regulation of structures. As before stated every provision of the ordinance, when read together, points to the confiscation of a business heretofore ad*221judged to be lawful, rather than the reasonable regulation thereof in the interest of public health, public morals, public safety or the general welfare. The majority opinion is a departure from the universal trend of authority. Billboard litigation has been frequent in the last few years, but no ordinances as drastic as the ones under consideration have been upheld by the courts.

I am likewise unable to concur in holding structures used for advertising purposes, responsible for the nuisances and wrongs which may be committed behind them. Nuisances and other wrongs are not committed behind a structure, because that structure happens to be used for advertising purposes. They are committed behind' all kinds of structures, and structures used for all purposes. Neither the structure, nor the use to which it is put, can be regarded as the inducing cause of the commission of these wrongs. If nuisances or other wrongs are committed behind these or any other structures, the city has the power and should abate the nuisances and prevent or punish the wrongs. • For this purpose it is not necessary to abate the structures.

Personally, I think these ordinances a direct blow at the constitutional right to own and use private property, so long as such use does not offend the wards of the police power. I believe the enforcement of the provisions, restrictions and prohibition? of these ordinances would constitute a taking of private property without due process of law and without compensation, and that the application of these ordinances. only to structures used for the public display of advertising matter, renders them discriminatory to such an extent as to deny to those engaged in that lawful business the equal protection of the laws. I am, therefore, convinced that these ordinances clearly violate the provisions of both the State and the Federal Constitution.

*222"With these views I felt constrained to dissent from my brother, and the importance of the questions suggested a written, rather than a silent dissent.