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New York State Thruway Authority v. Ashley Motor Court, Inc.

10 N.Y.2d 151 Court N.Y. Decision date 1961-07-07 English

Delivered by Fuld, J.

Contents

Majority

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New York State Thruway Authority, Respondent, v. Ashley Motor Court, Inc., et al., Appellants.
Argued June 7, 1961;
decided July 7, 1961.
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Joseph Worona and Milton M. Haven for appellants.
I. Section 361-a of the Public Authorities Law, insofar as it declares the erection and maintenance of outdoor advertising signs a public nuisance and that they may be abated and removed without notice, violates the constitutional guarantee of due process. (Whitmier & Filbrick Co. v. City of Buffalo, 118 P. 773 ; People v. Sterling, 128 Misc. 650 , 222 App. Div. 849 ; Gunning System v. City of Buffalo, 62 App. Div. 497 ; Coe v. Armour Fertilizer Works, 237 U. S. 413 ; People ex rel. Copcutt v. Board of Health of City of Yonkers, 140 N. Y. 1 ; Lawton v. Steele, 119 N. Y. 226 , 152 U. S. 133 ; Stuart v. Palmer, 74 N. Y. 183 ; Heeg v. Licht, 80 N. Y. 579 .) II. Section 361-a of the Public Authorities Law being retroactive deprives defendants of a vested right without due process of law. (People ex rel. Standard B. P. Co. v. Hastings, 77 Misc. 453 , 207 N. Y. 763 .) III. Section 361-a of the Public Authorities Law is unreasonable and invalid and was not enacted in the interest of public health, morals or safety. (Triborough Bridge & Tunnel Auth. v. Crystal & Son, 2 A D 2d 37 , 2 N Y 2d 961 ; Matter of Mid-State Adv. Corp. v. Bond, 274 N. Y. 82 ; Matter of Spielvogel v. Ford, 1 N Y 2d 558 ; Cluett, Peabody & Co. v. J. W. Mays, Inc., 5 A D 2d 140 .) IV. Section 361-a of the Public Authorities Law is an unconstitutional, arbitrary, confiscatory and discriminatory exercise of the police power. V. Section 361-a of the Public Authorities Law infringes on the constitutional guarantee of freedom of speech and press. (Lovell v. Griffin, 303 U. S. 444 ; Sunshine Book Co. v. McCaffrey, 4 A D 2d 643 ; Matter of Rockwell v. Morris, 12 A D 2d 272 ; Schneider v. Irvington, 308 U. S. 147 ; Thornhill v. Alabama, 310 U. S. 88 ; Saia v. New York, 334 U. S. 558 ; Superior Films v. Department of Educ., 346 U. S. 587 ; Brown v. Kingsley Books, 1 N Y 2d 177 , 354 U. S. 436 .) VI. The relocation of the sign herein was not the 1 ‘ erection ’ ’ of a new sign in violation of section 361-a of the Public Authorities Law. (City of New York v. Seel, 8 A D 2d 964 .) VII. Confiscation however slight is illegal. VIII. The taking map filed by the New York State Department of Public Works condemned the land and the interests of the owner therein for highway
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purposes only and did not, as a matter of law, include the sign owned by defendant Highway Displays, tnc. (United States v. Sixty-Two Parcels of Land, 24 F. Supp. 882 ; Matter of City of New York [Triborough Bridge], 249 App. Div. 579 , 274 N. Y. 581 ; Matter of City of New York [Whitlock Ave.], 278 N. Y. 276 ; Matter of City of New York [North Riv. Water Front], 118 App. Div. 865 , 189 N. Y. 508 .) IX. The statute and the rules and regulations of plaintiff herein contemplated the erection of signs in the future and did not affect signs in existence at the time of the enactment of the legislation or the adoption of such rules and regulations. X. Defendants should not be required to seek a permit to maintain said signs under an unconstitutional act. (Matter of Concordia Collegiate Inst. v. Miller, 301 N. Y. 189 ; Town of Somers v. Camarco, 308 N. Y. 537 .) XI. The proof failed to support the material allegations of the complaint and the complaint should, therefore, be dismissed.
Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
I. Defendants have no rights, vested or otherwise, proprietary in character or arising out of contract, respecting the sign involved herein. (Perlmutter v. Greene, 259 N. Y. 327 ; General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149 ; Kelbro, Inc., v. Myrick, 113 Vt. 64 ; Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19 , 221 U. S. 467 ; Barnett v. Johnson, 15 N. J. Eq. 481 ; Centebar v. Selectmen of Watertown, 268 Mass. 121 ; Williams v. Los Angeles Ry. Co., 150 Cal. 592 ; Yale Univ. v. New Haven, 104 Conn. 610 ; Story v. New York El. R. R. Co., 90 N. Y. 122 ; McCullough v. Broad Exch. Co., 101 App. Div. 566 , 184 N. Y. 592 ; Chase v. Cram, 39 R. I. 83 ; Bang v. Forman, 244 Mich. 571 ; Miller v. Weingart, 317 Ill. 179 ; First Nat. Bank v. Tyson, 133 Ala. 459 , 144 Ala. 457 .) II. Assuming, arguendo, that defendants possessed valid and subsisting property and contractual rights, the limitation or denial of such rights could be effected under the police power of the State and was so effected by section 361-a of the Public Authorities Law. (Hadacheck v. Los Angeles, 239 U. S. 394 ; People ex rel. Nechamcus v. Warden, 144 N. Y. 529 ; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 ; Rast v. Van Deman & Lewis Co., 240 U. S. 342 ; St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269 ; Legal Tender Cases, 12 Wall. [79 U. S.] 457; Matter of Wilshire, 103 F. 620 ; People
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ex rel. Durham v. La Fetra, 230 N. Y. 429 .) III. The imposition of the restriction against billboards upon lands abutting Upon a highway constitutes a proper and constitutional exercise of the police power. TV. It is the duty of the State to keep the highway safe for the traveling public and the imposition of the restriction against billboards is a legitimate performance of this duty. (Packer Corp. v. Utah, 285 U. S. 105 ; Cohen v. Mayor of New York, 113 N. Y. 532 ; Fifth Ave. Coach Co. v. City of New York, 194 N. Y. 19 , 221 U. S. 467 ; Schulman v. People, 11 A D 2d 273 ; Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148 ; Swisher & Son v. Johnson, 149 Fla. 132 ; Triborough Bridge & Tunnel Auth. v. Crystal & Son, 2 A D 2d 37 , 2 N Y 2d 961 ; Matter of Mid-State Adv. Corp. v. Bond, 274 N. Y. 82 .) V. Aesthetic factors justify the imposition of the restriction against billboards. (City of Passaic v. Paterson Bill Post Co., 72 N. J. L. 285 ; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126 ; Opinion of Justices, 232 Mass. 605 ; Varny & Green v. Williams, 155 Cal. 318 ; Matter of Mid-State Adv. Corp. v. Bond, 274 N. Y. 82 ; General Outdoor Adv. Co. v. Indianapolis, 202 Ind. 85 ; State v. Harper, 142 Wis. 148 ; Gilfillan’s Permit, 291 Pa. 358 ; Liggett’s Petition, 291 Pa. 109 ; General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149 ; State ex rel. Civello v. City of New Orleans, 154 La. 271 ; People v. Wolf, 127 Misc. 382 ; Preferred Tires, Inc., v. Village of Hempstead, 173 Misc. 1017 ; Berman v. Parker, 348 U. S. 26 .) VI. The right to be let alone justifies the imposition of the restriction. (Public Utilities Comm. v. Pollak, 343 U. S. 451 ; Railway Express v. New York, 336 U. S. 106 ; State v. Hind, 143 Neb. 479 ; Kovacs v. Cooper, 336 U. S. 77 ; Pike Co. v. City of New York, 169 Misc. 109 ; Matter of Reynolds v. Valentine, 169 Misc. 631 ; People v. Harrow, 191 Misc. 216 .)

This appeal involves the constitutionality of the statute restricting the erection of billboards and other advertising devices along the Thruway.

The advertising sign in question carried the legend “ OX EXIT 14-THKXTWAY ASHLEY MOTEL (aaa) ”, the motel being located some miles from where the sign was located. The Thruway Authority instituted this suit to enjoin the defendants—Ashley Motor Court, the owner of the motel,

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Highway Displays, the party who maintained the sign, and Ramapo Land Company, who owned the land where the sign was situated—from continuing to use the sign and to have them remove it. The courts below decided in favor of the Thruway, upholding the validity of the statute, and the defendants appeal to us as of right.

Attending the enactment of the statute, section 361-a of the Public Authorities Law (L. 1952, eh. 593), were explicit legislative findings that the ‘ ‘ unrestricted and unregulated erection and maintenance of advertising devices adjacent to the thruway system would create conditions which are inimical to the public interest, interfere with the safety, comfort, security and welfare of the people of this state and mar the natural beauty of areas adjacent to the thruway system. In order to prevent such conditions the legislature hereby determines that the following enactment [§ 361-a] is necessary” (§ 1).

In its first subdivision, section 361-a prohibits the erection of any billboard or other advertising device located within a specified distance of the nearest edge of the Thruway pavement unless a written permit is granted by the Thruway Authority.[1] Subdivision 2 defines an “ advertising device ” as any device ‘ ‘ intended to attract or which does attract the attention ’ ’ of those driving motor vehicles on the Thruway. Subdivision 3 gives the Authority the power to adopt regulations for the issuance of permits for advertising devices; such regulations, it is specified, “ shall be designed to effectuate the general purposes ” of the statute and “ the specific objectives and standards ” are set out as follows:

(a) “To provide for maximum visibility ’ ’;
(b) “To prevent unreasonable distraction” of motor vehicle operators;
(c) “To prevent confusion with regard to traffic lights, signs or signals ’ ’ or other interference with the effectiveness of traffic regulations;
(d) “ To preserve and enhance the natural scenic beauty or the aesthetic features of the thruway system ” and
(e) “ To promote maximum safety, comfort and well-being of the users of the thruway. ’ ’

1 At the time this suit was instituted, the prohibited distance was 500 feet; it was later increased to 660 feet (L. 1960, eh. 904).

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And, by subdivision 7, the Authority is expressly empowered to permit advertising devices — such as signs giving the names and addresses of the owners of the property on which they are placed or indicating the sale or leasing of such property-—-if it finds that they do not interfere with safety or contravene any other specified standards.

The sign in question, for which no permit was ever sought by any one, is located within 500 feet of the edge of the Thruway pavement and was originally placed on defendant Ramapo’s property adjacent to Route 17 in 1937. When, in 1958, that property was condemned for use in connection with the widening of Route 17, it was moved to its present location on adjacent land.

The defendants argue that section 361-a is invalid because it is not reasonably related to the public health, morals or safety and because it constitutes a taking of property rights without compensation.

There can be no doubt that the statute is reasonably related to a legitimate legislative purpose. As both the Legislature’s finding and the statute’s listed objectives make clear, the legislation was aimed at rendering the Thruway safe for the traveling public — by providing for maximum visibility and by preventing unreasonable distractions. There are some, perhaps, who may dispute whether billboards or other advertising devices interfere with safe driving and constitute a traffic hazard (see Price, Billboard Regulations Along the Interstate Highway System, 8 Kansas L. Rev. 81, 88), but mere disagreement may not cast doubt on the statute’s validity. Matters such as these are reserved for legislative judgment, and the legislative determination, here expressly announced, will not be disturbed unless manifestly unreasonable. (See, e.g., Wiggins v. Town of Somers, 4 N Y 2d 215 , 218-219; Lincoln Bldg. Associates v. Barr. 1 N Y 2d 413 , 415-416.)

It has been said that billboards can be as destructive of the beauties of the countryside as a plague of locusts and that, consequently, aesthetic considerations alone are enough to sustain enactments restricting and regulating the erection of advertising devices. We need not, however, concern ourselves with the question whether the preservation of £ 1 the natural scenic

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beauty” (§ 361-a, subd. 3, par. [d]) would in and of itself be a sufficient basis for the legislation under consideration. The fact is that the statute before us refers to the aesthetic element as but one of the “ objectives and standards ’’which the Authority should have in mind in adopting regulations for the issuance of permits. The other factors to be considered by the agency— such as the promotion of “ maximum safety ” and the prevention of “ unreasonable distraction ” and “ confusion ” (§ 361-a, subd. 3, pars, [b], [c], [d])—undoubtedly justify the exercise of the police power. (See, e.g., Matter of Presnell v. Leslie, 3 N Y 2d 384 , 389; Perlmutter v. Greene, 259 N. Y. 327 , 332.) As Chief Judge Pounn put it in the Perlmutter case (259 N. Y., at p. 332), “ Beauty may not be queen but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.”

As to the defendants’ argument that they are being deprived of their property without due process of law, it is enough to point out, as was found below, that, although the sign existed at another location at a prior time, it was relocated and placed in its present position in 1958, some years after the effective date of the statute, and that this constituted the erection of a new sign.

Even supposing, however, that the defendants possessed valid and subsisting property rights which the legislation here in issue abrogated, this would not provide sufficient basis for declaring the statute unconstitutional. In this connection, it is to be borne in mind that it was the very construction of the Thruway which created the element of value in the land abutting the road. Billboards and other advertising signs are obviously of no use unless there is a highway to bring the traveler within view of them. What was taken by the regulation, therefore, was the value which the Thruway itself had added to the land and of this the defendant cannot be heard to complain. The police power is 1 ‘ the least limitable of the powers of government and * * * extends to all the great public needs ” (People v. Nebbia, 262 N. Y. 259 , 270, affd. 291 U. S. 502 ), and if the end desired be within the power of the State and the means used are reasonably suited to that end, it is no objection that “ the rights of private property are thereby curtailed”.

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(People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429 , 442; see, also, Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398 , 438; St. Louis Poster Adv. Co. v. St. Louis, 249 U. S. 269 , 274.)

Since, therefore, section 361-a of the Public Authorities Law represents a constitutional exercise of the State’s police power (see, e.g., Cusack Co. v. City of Chicago, 242 U. S. 526 ; Packer Corp. v. Utah, 285 U; S. 105; General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149 ; Kelbro, Inc., v. Myrick, 113 Vt. 64 ), the injunction was properly issued to require the defendants to remove the advertising device which they are maintaining.

The judgment of the Appellate Division should be affirmed, without costs.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.

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