Whitmier & Ferris Co. v. State — 20 N.Y.2d 413

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p. 413

Whitmier and Ferris Company, Inc., Appellant, v. State of New York et al., Respondents.

(Claim No. 45318.)

Argued September 27, 1967;

decided October 26, 1967.

Norman E. Joslin and John B. Drenning for appellant.

I. The State courts, under the Fourteenth Amendment to the United States Constitution, are obliged to determine whether section 361-a of the Public Authorities Law, enacted under the State’s police power, is a constitutional exercise of that power, and to that end must afford the citizen an opportunity to fully litigate the issues upon which the statute’s constitutionality depends. (New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151 ; National Adv. Co. v. New York State Thruway Auth., 36 Misc 2d 987 , 18 A D 2d 118 ; Empire Outdoor Adv. Co. v. New York State Thruway Auth., 25 A D 2d 498 , 17 N Y 2d 730 ; People v. Nebbia, 262 N. Y. 259 , 291 U. S. 502 ; Liggett Co. v.

p. 414

Baldridge, 278 U. S. 105 ; Hulen v. City of Corsicana, 65 F. 2d 969 , 290 U. S. 662 ; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 ; Rivera v. R. Corbian Chinea & Co., 181 F. 2d 974 ; Lawton v. Steele, 152 U. S. 133 ; Goldblatt v. Hempstead, 369 U. S. 590 ; Reduction Co. v. Sanitary Works, 126 F. 29 , 199 U. S. 306 .) II. Section 361-a of the Public Authorities Law, insofar as it authorizes the removal or destruction of advertising devices within a specified distance from the Thruway without making compensation therefor, is an unconstitutional exercise of the police power and constitutes a taking for which compensation must be paid. (Missouri Pacific R. Co. v. Norwood, 13 F. Supp. 24 , 290 U. S. 600 ; Health Dept. of City of N. Y. v. Rector of Trinity Church, 145 N. Y. 32 ; Delaware, L. & W. R. R. v. Morristown, 276 U. S. 182 ; Creasy v. Stevens, 160 F. Supp. 404 , 360 U. S. 219 ; Andrews v. State of New York, 9 N Y 2d 606 ; Fitzgerald v. State of New York, 10 Misc 2d 1046 , 9 A D 2d 486 ; Holmes v. State of New York, 279 App. Div. 489 ; United States v. Miller, 317 U. S. 369 ; State Highway Dept. of Georgia v. Branch, 222 Ga. 770 .) III. The State, in eliminating outdoor advertising under its police power, does violence to the purpose of the Federal Government in enacting highway beautification legislation. IV. Section 361-a of the Public Authorities Law, by declaring the erection and maintenance of outdoor advertising devices to be a public nuisance and authorizing their destruction, is a violation of the Fourteenth Amendment’s due process clause. (Whitmier & Filbrick Co. v. City of Buffalo, 118 F. 773 ; Gunning System v. City of Buffalo, 62 App. Div. 497 ; General Outdoor Adv. Co. v. Indianapolis, 202 Ind. 85 ; Grant v. Mayor & City Counsel of Baltimore, 212 Md. 301 ; Chaster Props. v. Preston, 176 Ohio St. 425 ; Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285 ; Lawton v. Steele, 152 U. S. 133 ; Matter of City of New York [Fifth Ave. Coach Lines], 18 N Y 2d 212 ; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493 ; Olmstead v. United States, 277 U. S. 438 ; Whitmier & Ferris Co. v. State of New York, 12 A D 2d 165 ; Rochester Poster Adv. Co. v. State of New York, 27 Misc 2d 99 , 15 A D 2d 632 , 11 N Y 2d 1036 ; City of Buffalo v. Michael, 16 N Y 2d 88 .)

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman and Ruth Kessler Toch of counsel), for respondents.

The

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removal of claimant’s advertising billboard, under section 361-a of the Public Authorities Law, was a valid exercise of the police power and is, therefore, not compensable. (New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151 ; Hadacheck v. Los Angeles, 239 U. S. 394 ; Chiropractic Assn. of N. Y. v. Hilleboe, 12 N Y 2d 109 ; National Adv. Co. v. New York State Thruway Auth., 36 Misc 2d 987 , 18 A D 2d 1118 ; Easley v. New York State Thruway Auth., 1 N Y 2d 374 ; Benz v. New York State Thruway Auth., 9 N Y 2d 486 , 369 U. S.147; Niagara Falls Power Co. v. White, 292 N. Y. 472 ; Weigert v. New York State Thruway Auth., 19 A D 2d 589 ; Northern Lights Shopping Center v. State of New York, 20 A D 2d 415 , 15 N Y 2d 688 , 382 U. S. 826 ; Empire Outdoor Adv. Co. v. New York State Thruway Auth., 25 A D 2d 498 , 17 N Y 2d 730 .)

Claimant leased various properties adjacent to the Thruway for the purpose of constructing and maintaining advertising signs. These signs, when they were erected, were more than 500 feet distant from the nearest edge of the pavement of the Thruway and, therefore, were not forbidden by section 361-a of the Public Authorities Law when it was enacted by chapter 593 of the Laws of 1952. They were, however, within the enlarged proscription of chapter 904 of the Laws of 1960, which extended the forbidden area to 660 feet from the pavement and of chapter 316 of the Laws of 1961, which caused the 660-feet setback to commence at the nearest edge of the right of way of the Thruway instead of the pavement. The signs were removed by the Thruway Authority. Claimant filed its notice of intention one day beyond the 90 days limited by subdivision 3 of section 10 of the Court of Claims Act. The time thus limited may be extended in the discretion of the court not to exceed two years in the manner provided by subdivision 5 of section 10. Claimant sought such permission and the State and the Thruway Authority cross-moved to dismiss the claim on the merits. The Appellate Division denied claimant’s motion to file a late notice of claim and granted defendants’ motion to dismiss the claim, citing New York State Thruway Auth. v. Ashley Motor Ct. ( 10 N Y 2d 151 ) and Empire Outdoor Adv. Co. v. New York State Thruway Auth. ( 25 A D 2d 498 , opp. dsmd. 17 N Y 2d 730 ). The claim has thus been dismissed upon its merits without regard to its date of filing.

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On its appeal to this court, claimant contends that section 361-a, in its present form, is an unconstitutional exercise of the police power and constitutes a taking of private property without just compensation insofar as it authorizes the removal or destruction of claimant’s advertising signs.

The reason of the Legislature for increasing the space in which advertising signs along the Thruway are prohibited to 660 feet from the property line of the highway was apparently that this was necessary in order to obtain Federal aid under section 131 of title 23 of the United States Code. That does not mean, however, that there was a failure of the police power to sustain this enlargement of the space in which such signs are prohibited. If it was a constitutional exercise of the police power to prohibit them within 500 feet from the edge of the Thruway pavement (New York State Thruway Auth. v. Ashley Motor Ct., 10 N Y 2d 151 , supra), there would appear to be no reason on account of which the police power was exceeded by the Legislature in extending the distance to 660 feet from the property line.

Advertising signs along highways heavily traveled by motorists at high speeds are in a class by themselves. Although aesthetic factors are not absent, the basis for the ruling in the Ashley case is public safety, which is a basis for the exercise of the police power by the Legislature. If people did not look at the signs, advertisers would not find it profitable to put them there. It was within the competence of the Legislature to determine that the safety of the traveling public is endangered by this distraction of the attention of drivers of automobiles under these circumstances. Exercise of the police power over subjects whose relationship to the public safety is honestly debatable cannot be held unconstitutional by the courts (New York State Thruway Auth. v. Ashley Motor Ct., supra, and cased cited).

There would be no doubt about the power of the Legislature to require the removal without the payment of compensation of signs which were insecurely fastened that would be in danger of falling upon users of the highway (Leary v. City of Yonkers, 95 App. Div. 126 ). A duty rests upon the public authorities to abate such conditions (Runkel v. City of New York, 282 App. Div. 173 , 177). A different kind of danger to the traveling public is involved here, but there is no reason on account of which it should be dealt with differently.

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The order appealed from should be affirmed.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur.

Order affirmed.

Cases cited

New York State Thruway Authority v. Ashley Motor Court, Inc. 10 N Y 2d 151 N.Y. 1961-07-07 p. 413, p. 415, p. 416
National Advertising Co. v. New York State Thruway Authority 36 Misc 2d 987 N.Y. Sup. Ct. 1962-11-07 p. 413, p. 415
Ancess v. Trebuhs Realty Co. 18 A D 2d 118 N.Y. App. Div. 1963-03-19 p. 413
People v. Nebbia 262 N. Y. 259 N.Y. 1933-07-11 at 291 p. 413
Louts K. Liggett Co. v. Baldridge 278 U. S. 105 SCOTUS 1928-11-19 p. 414
Gatto v. United States 290 U. S. 662 SCOTUS 1933-10-09 p. 414
Pennsylvania Coal Co. v. Mahon 260 U. S. 393 SCOTUS 1922-12-11 p. 414
Lawton v. Steele 152 U. S. 133 SCOTUS 1894-03-05 p. 414
Goldblatt v. Town of Hempstead 369 U. S. 590 SCOTUS 1962-05-14 p. 414
California Reduction Co. v. Sanitary Reduction Works 199 U. S. 306 SCOTUS 1905-11-27 p. 414
Rosenberg v. Wisconsin 290 U. S. 600 SCOTUS 1933-12-11 p. 414
Health Department v. Rector of Trinity Church 145 N. Y. 32 N.Y. 1895-02-26 p. 414
Delaware, Lackawanna & Western Railroad v. Town of Morristown 276 U. S. 182 SCOTUS 1928-02-20 p. 414
Martin v. Creasy 360 U. S. 219 SCOTUS 1959-06-08 p. 414
Andrews v. State 9 N Y 2d 606 N.Y. 1961-05-25 p. 414
Fitzgerald v. State 10 Misc 2d 1046 N.Y. Ct. Cl. 1958-05-02 p. 414
Fitzgerald v. State 9 A D 2d 486 N.Y. App. Div. 1959-12-31 p. 414
States v. Miller 317 U. S. 369 SCOTUS 1943-01-04 p. 414
Gunning System v. City of Buffalo 62 App. Div. 497 N.Y. App. Div. 1901-06-19 p. 414
In re City of New York 18 N Y 2d 212 N.Y. 1966-07-07 p. 414
Vernon Park Realty, Inc. v. City of Mount Vernon 307 N. Y. 493 N.Y. 1954-07-14 p. 414
Olmstead v. United States 277 U. S. 438 SCOTUS 1928-06-04 p. 414
Whitmier & Ferris Co. v. State 12 A D 2d 165 N.Y. App. Div. 1961-01-05 p. 414
Rochester Poster Advertising Co. v. State 27 Misc 2d 99 N.Y. Ct. Cl. 1961-03-27 p. 414
Rochester Poster Advertising Co. v. State 11 N Y 2d 1036 N.Y. 1962-06-12 p. 414
City of Buffalo v. Michael 16 N Y 2d 88 N.Y. 1965-07-09 p. 414
Hadacheck v. Sebastian 239 U. S. 394 SCOTUS 1915-12-20 p. 415
Chiropractic Ass'n of New York, Inc. v. Hilleboe 12 N Y 2d 109 N.Y. 1962-12-31 p. 415
Easley v. New York State Thruway Authority 1 N Y 2d 374 N.Y. 1956-06-07 p. 415
Benz v. New York State Thruway Authority 9 N Y 2d 486 N.Y. 1961-04-27 p. 415
Niagara Falls Power Co. v. White 292 N. Y. 472 N.Y. 1944-05-25 p. 415
Northern Lights Shopping Center, Inc. v. State 20 A D 2d 415 N.Y. App. Div. 1964-02-27 p. 415
Northern Lights Shopping Center v. State 15 N Y 2d 688 N.Y. 1965-01-07 p. 415

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Cases cited

Statutes and regulations cited