tion should be granted. Although, as has been said, the decision was under a particular statute, it is believed that Mr. Justice Scott's reasoning, fortified by a former New York decision cited by him, is broad enough to cover cases of all public parks. If it be not definitely settled that disfiguring public parks by advertisements is illegal, at least it can be said that the trend of authority is strongly in that direction, and that it is highly probable that such position will be taken in future cases. The following language from Justice Scott's opinion is worthy of reproduction:

"A public park has been defined by the Court of Appeals as 'a piece of ground enclosed for purposes of pleasure, exercise, amusement, or ornament,'1 and commissioners charged with the care of such parks have often been held justified in granting licenses for the maintenance within parks of such conveniences as would enhance the opportunities of the public to use and enjoy the parks as places of resort, amusement, recreation, and exercise. In every case, however, in which the exercise of this power has been sustained it has been because the use authorized has in some way contributed to the use and enjoyment of parks by the public. The defendant Pallas gives in his affidavit opposing this motion a list of some of the licenses heretofore granted with respect to the city's parks, including restaurants, refreshment stands, boats, stages, boathouses and flower-stands. This very list of itself shows that heretofore the issue of licenses has been limited to objects which would tend to afford additional facilities for the beneficial use and enjoyment of the parks by the public, and have come to be generally recognized as appropriate aids to the full enjoyment of public pleasure grounds. No such claim can be made for the advertisements of which the plaintiff complains. It is too obvious to require demonstration that business advertisements painted upon a board fence contribute nothing to the beneficial use of the park by the public. The defendant commissioner, then, had no authority, either by the express terms of any statute or by any reasonable implication, to grant a license for the exhibition of the advertisements, and his attempt to do so was illegal and void."

Assuming, therefore, the right to protect and promote æsthetic ends on public property, whether buildings, streets, or parks, the legal crux arises as to the control of private property in the interest of the general sense of beauty. Here there is a dearth of affirmative precedents. Indeed, the only actual decision authorizing positive action within the writer's knowledge is that in the famous Copley Square case by the Supreme Judicial Court of

1 Perrin v. New York, etc., R. Co., 36 N. Y. 120.

Massachusetts. That case recognized the validity of a legislative act of Massachusetts limiting the height of buildings "now being built or hereafter to be built, rebuilt, or altered," on streets adjoining Copley Square in the city of Boston, upon making suitable compensation to owners for injuries sustained through the impairment of the use of their property. Incidentally, also, the regulation of the right to erect towers, domes, sculptured ornaments, and chimneys extending above ninety feet, the limit fixed for buildings themselves, was approved. The kernel of the reasoning of the court lies in the following language:

"The grounds on which public parks are desired are various. They are to be enjoyed by the people who use them. They are expected to administer, not only to the grosser senses, but also to the love of the beautiful in nature in the changing forms which the changing seasons bring. Their value is enhanced by such touches of art as help to produce pleasing and satisfactory effects on the emotional and spiritual side of our nature. Their influence should be uplifting and, in the highest sense, educational. If wisely planned and properly cared for they promote the mental as well as the physical health of the people. For this reason it has always been deemed proper to expend money in the care and adornment of them to make them beautiful and enjoyable. Their æsthetic effect never has been thought unworthy of careful consideration by those best qualified to appreciate it. It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated. It is argued by the defendants that the Legislature, in passing this statute, was seeking to preserve the architectural symmetry of Copley Square. If this is a fact, and if the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against the will of the owner. But if the Legislature, for the benefit of the public, was seeking to promote the beauty and attractiveness of a public park in the capital of the Commonwealth, and to prevent unreasonable encroachments upon the light and air which it had previously received, we cannot say that the law-making power might not determine that this was such a matter of public interest as to call for expenditure of public money, and to justify the taking of private property."

The court cites as approximate precedents cases of the expenditure of public money for patriotic purposes, as the erection of monuments, statues, gates, or arches, or even a memorial

1 Attorney-General 7. Williams, 174 Mass. 476.

hall. There may also be added as kindred examples of intangible public uses statutes that have been upheld prohibiting the use of a representation of the Arms or Great Seal of a state, or of the flag of the United States, for commercial advertising or trademark purposes.2

It seems only a natural step—indeed, considering the growth of the æsthetic sentiment, an inevitable step- from recognizing sentimental public uses of a patriotic or historical nature to the allowance of purely æsthetic uses, as was done in AttorneyGeneral v. Williams, supra. As above stated, no other case exactly in point is known, but there has been very wide discussion of the Williams case in periodicals and by text writers, and, so far as the writer is aware, its doctrine has been universally approved. Some uncertainty was expressed in the opinion whether the end in view might not have been legally accomplished under the police power, without compensation, instead of through the exercise of eminent domain. The subsequent decision by the same court in Parker v. Commonwealth, while it does not squarely pass upon the question, intimates that the right to proceed under the police power would have been at least gravely doubtful. Such doubt has been emphasized by a series of cases in different states holding that a legislature has no power to authorize a municipal corporation to prohibit the placing of signs or advertisements upon private property, or fences enclosing private property, or to limit the height and form of enclosures of private property, from merely æsthetic motives.4

The purport of these judicial utterances the authorities on the subject are believed to be in unbroken harmony is that statutes or ordinances interfering with the use of private property may be upheld under the police power, if their purpose can reasonably be perceived to be the promotion of the public health, comfort, or physical convenience, but if the aim be merely the suppression of an eyesore, they will constitute an unconstitutional invasion of individual rights.

1 Kingman v. Brockton, 153 Mass. 255.

2 Comm. v. Sherman Mfg. Co., 75 N. E. Rep. 71 (Mass.); Halter v. State, 105 N. W. Rep. 298 (Neb.).

8 178 Mass. 199.

4 New Jersey, etc., Co. v. Atlantic City, 58 Atl. Rep. 342 (N. J.); Passaic v. Paterson, etc., Co., 62 Atl. Rep. 267 (N. J.); Chicago v. Gunning System, 73 N. E. Rep. 1035 (Ill.); People v. Green, 85 N. Y. App. Div. 400. Also see many cases cited in Passaic v. Paterson, etc., Co., supra.

In his work on Police Power Mr. Ernst Freund remarks: 1

"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 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."

The analogy to offensive noises and odors is a priori clear enough. The difficulties in the way of effectuating it are, first, the substantive one of interference with constitutional rights, and it may be said that some of the decisions in billboard cases above cited have been made since the publication of Mr. Freund's book. Moreover, by custom and legal adjudication, the maintenance of advertising signs in windows or on outside walls of buildings ranks as a very material business factor.

Second, there is a practical difficulty to which Mr. Freund himself calls attention. He remarks in a note to section 182 that although the power to restrain unsightly signs be conceded,

"the manner of its exercise would give rise to constitutional difficulties. Under our government system these regulations would have to proceed from the legislative authority of either state or locality. Such regulations would have to define what signs are prohibited, and some test would have to be discovered by which to discriminate that which is merely unæsthetic from that which is so offensive as to fall under the police power, since the prohibition of all advertising signs would be out of the question."

It is believed that both on theoretical and practical grounds the law must be taken as settled that, although public æsthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power without compensation.

It does not, however, follow that the analogy to offensive sounds and odors will always remain utterly futile. It is submitted that judicial power might be exercised under the facts of a given case to restrain a particular advertisement, or collection of advertisements, as a nuisance. An inherently lawful business may constitute a nuisance because of the manner or place in which it is conducted. It is entirely possible that the increasing æsthetic

1 § 182.

sentiment will, in time, sanction the judiciary in taking cognizance of particular nuisances, as is now done with nuisances of noise and smell. It is well settled that courts may take notice that the standard of comfort differs according to the situation of property and the class of people who inhabit a locality. In this country, as well as in England, the character of a neighborhood—whether residential or business is vitally important on the question of nuisance. Accordingly, it might be determined that advertisements that disfigured a certain neighborhood entirely devoted to residence fell within the purview of progressive equitable jurisdiction.

The suggestion has also been made that advertisements may be controlled through the taxing power. There is no good reason. why that form of business enterprise should not be taxed, and taxed heavily. It is already obnoxious to the æsthetic sense of the community, and is daily becoming more so. If billboard advertisements must exist, the public might as well derive a revenue from them, and if the tax be made substantial and graded according to the space employed, it may indirectly tend toward diminution of the evil itself. Such legislation would be analogous in policy and effect to liquor tax laws. A statute applying generally to all use of billboards and with uniform regulation as to gradation of tax would doubtless be constitutional. It is improbable, however, that the abuse could be entirely suppressed through taxation. Chief Justice Marshall's famous dictum1 that the power to tax involves the power to destroy has been materially limited in its application.2 The present writer shares the doubt expressed by the author of the note in Cooley on Taxation whether an affirmative exercise of nominal taxing power would be justified that has not revenue in view, "but is only called a tax in order that it may be employed as an instrument of destruction."

There is one form of advertising for the suppression of which it is believed judicial power might even now be exercised. The custom has sprung up in cities of covering the whole side or front of a building with advertisements pictured or lettered in electric lights. Persons dwelling near these flamboyant displays must feel as if they were passing their nights in the Land of the Midnight Sun. The glare is, of course, intensely disagreeable, and further

1 McCullough v. Maryland, 4 Wheat. (U. S.) 431.

2 Knowlton v. Moore, 178 U. S. 41, 60.

8 3d ed., 14.