and artistic gratification are purposes public enough to justify the expenditure of public money, and to authorize the exercise of eminent domain in behalf of similar purposes was but a short step beyond."'

15

15"While there are some dicta that property cannot be condemned merely for ornamental purposes or for purposes of pleasure, and there is little, if any, direct authority to the contrary, yet the undoubted tendency of the more recent decisions is in the opposite direction, and the time is not far distant, it is believed, when it will be the accepted rule that a municipality may be authorized to condemn property for æsthetic purposes." McQuillin Munic. Corps. (1912 sec. 1485.)

"Public money may be expended in acquiring property to be used for purposes largely æsthetic in their nature, such as parks, boulevards, and museums, and in beautifying and adorning public buildings and other public property, already possessed. So, also, may the property of individuals be condemned for such purposes on payment of compensation." Note on "Exercise of Police Power for Esthetic Purposes," 34 Lawyers Reports Annotated (1911), pp. 998-999.

"It is not necessary that every part of all highways should be used for the passage of vehicles and pedestrians. It is proper that some regard should be had for the aesthetic tastes, the comfort, health, and convenience of the public; and if the legislature had enacted that Clinton Avenue should be increased in width to the extent provided in this act, and had provided that a strip in the center of the highway, forty feet wide, should be devoted to trees and flowers, as is done in many of our cities, it would hardly have been questioned that this constituted a public use, in the same sense that a park preserve is generally recognized as a public use. Shoemaker v. U. S., 147 U. S. 282, 297, 13 Sup. St. 361, 37 L. Ed. 170, and authorities there cited. Because the legislature has preferred to leave this breathing space upon the sides of the street, subject to the limited use of the owners of the fee, does not change its essential character, and the improvement is undoubtedly much less expensive than the one which is suggested as within the legislative discretion." In re City of New York, 68 N. Y. S. 196, 200, 57 App. Div. 166, affirmed without opinion in 167 N. Y. 624 (1901); sometimes cited as "In the matter of Clinton Avenue." The New York law referred to is 1899, ch. 257.

Under chapter 170 of the Laws of New York for 1900, the Commissioners of Palisades Interstate Park were authorized to condemn such land in the vicinity of the Palisades, within certain limits, "as may in their opinion be proper and necessary to be reserved for the purpose of establishing a State Park and thereby preserving the scenic beauty of the Palisades." In a case under this statute it was decided that "the taking of land used as a stone quarry along the Palisades of the Hudson and adjoining the state park for the purpose of preserving the scenic beauty of the river and of the park, is a taking for a 'public use' though the land itself is so rugged as not to be adapted for use as a park." Bunyan v. Commissioners of Palisades Interstate Park, 1915, 153 N. Y. S. 622. See also Foster v. Park Com'rs., 133 Mass. 321 (1882).

The appropriation of the water of a stream for a waterfall essential to the beauty of a summer resort, is a legal appropriation for it, under the Colorado law which gives the first taker the legal right to the water; and a company demanding it for commercial uses, cannot claim that such uses are the only beneficial ones. In so deciding the court says:

"Is it no benefit to the public to spend money in making a beautiful place in nature visible and enjoyable? It is a benefit to the weary, ailing and feeble that they can have the wild beauties of nature placed at their convenient disposal. Is a piece of canvas valuable only for a

Promotion of Beauty under Police Power. It is neither possible nor desirable in all cases to attempt to promote the æsthetic or any other phase of the public welfare by the expenditure of public money. If the number of people affected by any measure is great, compensation for the resulting limitation of property rights is often impracticable, and regulation without compensation under the police power must be resorted to or the desired result will be practically unattainable. The question arises in any given class of cases whether regulation without compensation can reasonably and properly be imposed, the decisions turning upon the answer to such questions as whether the sacrifice demanded is too great and the end to be attained sufficiently important.

If the city dweller is to live in pleasing surroundings, not only public property but private property exposed to general view must be pleasing. This consideration applies especially to the city streets. The street, as legally defined, consists of the land within the street lines; the street to the ordinary citizen includes those parts of the buildings or other structures which border it and which he sees, and is intended to see, when pasing through it; indeed to him the character of the street is in these structures much more than in the mere street surface. Fifth Avenue in its street surface is not peculiarly distinguished from many other of the streets of New York; it is the buildings. abutting on Fifth Avenue that make it one of the best known thoroughfares in the world.

In all civilized countries money raised by public taxation is spent to erect public buildings, to acquire for them suitable sites, and in countless ways to make the appearance of land

tent-fly, but worthless as a painting? Is a block of stone beneficially used when put into the walls of a dam, and not beneficially used when carved into a piece of statuary? Is the test dollars, or has beauty of scenery, rest, recreation, health, enjoyment, something to do with it? ... When the defendant company says the complainants are putting the fall of the water to no beneficial use, it means that the complainants are not ruining the beautiful scenery for cash." Cascade Town Co. v. Empire Water & Power Co., 181 Fed. Rep. 1011 (1910).

It was long ago held that roads might be laid out to provide access to places of beauty; Higginson v. Nahant, 11 Allen (Mass.) 530 (1866). See in this connection, Appeal of Rees, 8 Sadler (Penn.) 582 (1888). Consult also 20 Corpus Juris, 583.

abutting on public streets attractive; but evidently most of this abutting land must and should be in private use and cannot be made pleasing to the passerby at public expense. If this is to be accomplished to any considerable extent it must be by restrictions imposed without compensation; and it only remains to determine whether regulations to this end which will not be unreasonably burdensome to the private owner can be devised to bring about this result. In spite of the many difficulties involved, European countries and Canada on this side of the water, 16 have found it possible to make and enforce such regulations; but, except for the amendment of the Massachusetts constitution, authorizing the regulation of bill boards, 17 we in this country have not as yet devised any method of doing so; for under our state constitutions the police power cannot be used to promote civic beauty; 18 although if the main purpose

16

"In the province of Quebec, Canada, under R. S. 1909, art. 5638, par. No. 1, municipal councils may pass by-laws to regulate the architecture, dimensions and symmetry of buildings in certain streets; and the municipal council of the city of Quebec, in an amendment to its charter (Laws, 1909, ch. 80, sec. 4) is given the same power.

In this connection, the following statute of the Province of Saskatchewan, Canada (1916, ch. 19), is of interest:—

"ESTABLISHING A MUNICIPAL CENTER

"211. In the event of the council acquiring land for the establishment of a municipal center, with a view to grouping together in some central location the municipal offices and other buildings of a public character, it shall be in the power of the council to pass bylaws or regulations prescribing the height, structural character and architectural features of all buildings on lands fronting on or adjoining such municipal center and the uses to which such buildings may be put, and prohibiting the use of any such buildings on such frontage or adjoining lands for the exhibition of advertisement hoardings, or the holding of travelling shows, or for any other purpose which the council may deem æsthetically offensive or obnoxious, having regard to the character of the locality as a municipal

center:

"Provided that the council shall not be liable, in respect of any such bylaws or regulations or the enforcement thereof, to make compensation to the owners or occupiers of lands or buildings affected thereby, excepting in the event of any building having to be taken down, removed or altered in consequence of such bylaws or regulations, in which case the amount of compensation shall, failing agreement, be determined by arbitration in the manner provided for by part X of this Act."

17 See p. 395, note 22.

19

McQuillin, Munic. Corps., Vol. III, sec. 929, and cases there cited. See to the contrary, however, Churchill et al. v. Rafferty, Collector, in the Supreme Court of the Philippines, Dec., 1915 (14 Official Gazette, p. 383, Feb. 16, 1916), and the long editorial on the case in the New York

of the measure in question justifies the employment of that power, the promotion of beauty may be a subsidiary consideration.19 Legal writers have not all been reconciled to the law as thus stated; and the courts have on several occasions, in their dicta, shown the same feeling.20

Law Journal of October 16, 1916, in which, after stating its belief that some state in this country would be courageous and wise enough to uphold the æsthetic regulation of bill boards under the police power, that paper quotes among others, the following passages from the opinion of the court:

"The success of billboard advertising depends not so much upon the use of private property as it does upon the use of the channels of travel used by the general public. Suppose that the owner of private property, who so vigorously objects to the restriction of this form of advertisement, should require the advertiser to paste his posters upon the billboards so that they would face the interior of the property instead of the exterior. Billboard advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of private property, but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence we conceive that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares.

"It may be that the courts in the United States have committed themselves to a course of decisions with respect to billboard advertising, the full consequences of which were not perceived for the reason that the development of the business has been so recent that the objectionable features of it did not present themselves to the courts nor to the people. We in this country have the benefit of the experience of the people of the United States and may make our legislation preventive rather than corrective."

In comment on the second quotation from the case the editors of the Law Journal say:

"It seems highly probable that the authority reasonably_to_regulate public æsthetics would now be recognized by the Supreme Court of the United States as not impugning the Fourteenth Amendment."

It should be especially noted in connection with the Rafferty Case that the Organic Act of the Philippines (39 U. S. Stats. at Large, 545 ch. 416 (Public No. 240), sec. 3, approved Aug. 29, 1916; repealing and superseding the similar provision, 32 Stat. 691, ch. 1369, Publ. No. 235, sec. 5, approved July 1, 1902. These acts, and others, will be found in a compilation, issued by the Government Printing Office in 1920, entitled "Acts of Congress and Treaties Pertaining to the Philippine Islands in Force July 1, 1919) incorporates the provisions of the Fourteenth Amendment of the United States Constitution, that no person shall be deprived of property without due process of law, which is one of the provisions upon which the courts base their decisions that æsthetic regulation of billboards is unconstitutional.

" Welch v. Swasey, 193 Mass. 364 at 375.

"A Maryland statute (1904, ch. 42) provided that no building to exceed seventy feet in height should be erected in a designated portion of the city of Baltimore, in the center of which stands the Washington Monument. The statute was attacked as a taking of private property

There is little doubt that if a state, by amending its constitution, expresses its belief and purpose that the police power shall be used conservatively for given æsthetic purposes, the

without compensation for a purely æsthetic purpose and therefore for a private use, which was unconstitutional. The Court, in sustaining this contention, says:

"Such is undoubtedly the weight of authority, though it may be that in the development of a higher civilization, the culture and refinement of the people has reached the point where the educational value of the Fine Arts, as expressed and embodied in architectural symmetry and harmony, is so well recognized as to give sanction, under some circumstances, to the exercise of this [police] power even for such purposes.

The statute was upheld, however, on the ground that the object of the act is not merely to preserve the architectural beauty of the locality but also to avoid the increased danger from fire which arises from tall buildings in the event of a general conflagration. Cochran v. Preston, 108 Md. 220 (1908).

"It is generally assumed that the prohibition of unsightly advertisements (provided they are not indecent) is entirely beyond the police power, and an unconstitutional interference with the rights of property. Probably, however, this is not true. It is conceded that the police power is adequate to restrain offensive noises and odors. A similar protection to the eye, it is conceived, would not establish a new principle, but carry a recognized principle to further application. It is true that ugliness is not as offensive as noise or stench. But on the other hand offensive manufactures are useful and the offense unintentional and inevitable, whereas in the case of an advertisement the owner claims the right to obtrude upon the public an offensive sight which they do not want, and which but for this undesired obtrusion, would not be of the slightest value to him." Freund, Police Power, p. 165.

In sustaining a St. Louis billboard ordinance, providing that:(a) No billboard shall exceed fourteen feet in height.

(b) Billboards shall have open spaces of four feet from the lower edge to the ground.

(c) Billboards shall not be nearer than six feet to a building or the side line of any lot or nearer than two feet to any other billboard.

(d) Nor over five hundred square feet in area or closer to the street line than fifteen feet.

a Missouri Court says:

"This is a legitimate and honorable business, if honorably and legitimately conducted, but every other feature and incident thereto have evil tendencies, and should for that reason be strictly regulated and controlled. The signboards and billboards upon which this class of advertisements are displayed are constant menaces to the public safety, and welfare of the city; they endanger the public health, promote immorality, constitute hiding places and retreats for criminals and all classes of miscreants. They are also inartistic and unsightly.

"In cases of fire they often cause their spread and constitute barriers against their extinction; and in cases of high wind, their temporary character, frail structure and broad surface, render them liable to be blown down and to fall upon and injure those who may happen to be in their vicinity. The evidence shows and common observation teaches us that the ground in the rear thereof is being constantly used as privies and