
    The People of the State of New York, Respondent, v. Joseph Green and George N. Goss, Appellants.
    
      Constitutional law — the Legislature cannot authorize a municipal ordinance prohibiting advertisements on fences— New York city legislation.
    
    The Legislature, has no po.wev to authorize a municipal corporation to prohibit the posting of any advertisements whatever upon fences inclosing private property, fronting on, or adjacent to, the public parks in such municipality, without the consent of the municipal authorities in charge of such parks.
    
      
      Semble (per Ingraham and Laxjghlin, J J.), that section 610 of the Greater New York charter (Laws of 1897, chap. 378), giving the park hoard of the city of New York power to enact ordinances for the government and protection of all parks, parkways, squares and public places within the city, and providing that “any person violating any of such ordinances shall be guilty of a misdemeanor and shall on conviction before a city magistrate be punished by a fine not exceeding fifty dollars, or in default of payment of such fine by imprisonment not exceeding thirty days,” does not confer upon the' park board power to enact an ordinance prohibiting the posting of bills on a fence inclosing private property adjacent to a public park without obtaining a permit to do so from the park board.
    
      Semble (per Ingraham and Laxjghlin, JJ.), that where the park board, assuming to act under the authority given to it by section 610 of the Greater New York charter, re-enact an ordinance, not authorized by that section, but which had been adopted by the old park hoax’d pursuant to section 688 of the Consolidation Act (Laws of 1882, chap. 410, as amd, by Laws of 1896, chap. 836), which provided, “ The said department shall have power to enforce obedience to such ordinances or rules as may be made as aforesaid, and observance thereof, by ordaining penalties for each and every violation thereof in such sums as they may deem expedient, not exceeding two hundred and fifty dollars, to he paid into the city treasury,” a person violating such ordinance cannot be convicted of a misdemeanor under section 610 of the Greater New York charter and punished as prescribed in that section.
    Appeal by the defendants, Joseph Green and another, from, an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of the county of New York on the 28th day of April, 1903, affirming a judgment of a city magistrate of the city of New York convicting the defendants on the charge of posting advertising bills upon a fence around vacant property in the city of New York.
    
      A. 8. Gilbert, for the appellants.
    
      Theodore Oonnoly, for the respondent.
   Ingraham, J.:

By section 610 of the charter (Laws of 1897, chap. 378) the park board was given power to establish general rules and regulations for the administration of the department, and to enact ordinances for the government and protection of all parks, parkways, squares and public places within the city, and provides that “ the same shall at all times be subject to all such ordinances as to the use and occupation thereof and in respect to any erections or encumbrances thereon; ” that “ any person violating any of such ordinances shall be guilty of a misdemeanor and shall on conviction before a city magistrate be punished by a fine not exceeding fifty dollars, or in default of payment of . such fine by imprisonment not ■ exceeding thirty days.” In pursuance of this power the park board, on. September 15, 1898, adopted a resolution that certain park ordinances then in force were adopted, enacted and declared ordinances of the park board for the boroughs of Manhattan and Richmond, under the authority and according to the provisions of section 6l¿ of the charter of the city of New York, Section 4 of the park ordinances thus adopted prohibited any person from posting “ any bill, placard, notice or other paper Upon any structure within such squares or places, or upon any street or avenue adjacent thereto, unless previously licensed so to do by the President of the Department.” Section 2 provided : No poster or advertising device shall be placed upon any fence or other structure intended for advertisement or the exhibition .of advertisements in, about or upon any vacant or unimproved land fronting upon or adjacent to any public park, square or place in the City of New York until a description or drawing of the same shall be filed with the Commissioners of Public Parks, approved by them and a permit in writing issued therefor.” Section- 610 of the revised charter (Laws of 1901, chap. 466) continued these ordinances in force, and it is for a violation of these ordinances that the defendants were convicted.

By the evidence before the magistrate it appeared that the defendants were engaged on December 6,1902, posting theatrical bills on a fence surrounding a vacant lot .on the east side of Amsterdam avenue, north of One Hundred and Twenty-third street; that this was' within fifty feet of Morningside Park; that this fence was upon private property, not within the limit of any park, public place, street or avenue, and it was stipulated upon the hearing before the magistrate that the fence upon which the posting was done stood on private property, inclosing the property which it surrounded.

It is quite clear that the park board acquired no power to pass any ordinance in relation to the use to which owners should put-private property adjacent to the public parks. Section 610 of the charter gives the park board power to pass ordinances for the government and protection of the parks, parkways, squares and public places within the city, but there is no power given,, either expressly or by implication, to control the use to which private property outside of the limits- of parks, or the public streets or avenues surrounding the park, shall be put. The owner of the property upon which this fence was erected, and upon which the defendants were posting advertisements, had a right to use his property in any legal way not prohibited by law, or not injurious to the health or welfare of the community; and the power given by this section is confined to a regulation of the public property embraced within the parks, or the places, streets or avenues surrounding the parks.

The learned corporation counsel, however, insists that certain sections of the Consolidation Act are still in force and that these ordinances are valid under the provisions of these sections. Section 688 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1896, chap. 836) provides that “The said department shall also have the power to regulate and determine the height and character of all fences in or about all vacant or unimproved lands fronting upon or adjacent to all public parks, squares and places in said city, and to regulate and control the exhibition of advertisements thereon or structures intended for advertisements or the exhibition of advertisements upon any lands fronting upon the public parks, squares and places in said city. The said department shall have power to enforce obedience to such ordinances or rules as may be made as aforesaid, and observance thereof, by ordaining penalties for each and every violation thereof in such sums as they may deem expedient, not exceeding, two hundred and fifty dollars, to be paid into the city treasury; ” and ordinance 2 of the old park board, to which attention has been called, was adopted in pursuance .of the authority conferred by this section. Assuming that this ordinance was valid and the Legislature had power to authorize the park board as then constituted- to control the use to which property adjacent to the park should be put and to impose a penalty for a violation of its direction, the park board imposed no penalty for a violation of this ordinance. The statute gave the board power to regulate and control the exhibition of advertisements upon any lands fronting upon public parks, squares and places in said city and to impose penalties for a violation of. ordinances or rules that it should make for that purpose. A violation of such a rule or ordinance is not, howevei, a violation of an ordinance adopted under-section 610 of the charter; and a person violating such an ordinance or rule could not be convicted under that section. The park board have by ordinance attempted to prohibit the placing upon any fence or other structure any poster or advertising device intended for advertisement, in, about or upon any vacant or unimproved land fronting upon or adjacent to any public park, square or place in the city of Kew Y orle “ until a description or drawing of the same shall be filed with the Commissioners of Public Parks, approved by them and a permit in-writing issued therefor; ” but so far as appears they have provided no penalty for a violation of this ordinance, and assuming that this ordinance was a valid exercise of power by the park board under section 688 of the Consolidation Act, a violation of the ordinance would not be a misdemeanor, but the remedy of the city or the public authorities would be an action to recover from the person guilty of the offense the penalty prescribed, if one had been prescribed. Under this section of the Consolidation Act and the ordinance adopted in pursuance of the authority attempted to be conferred thereby, there was no justification for the conviction of these defendants for a misdemeanor, and for imposing a fine upon them under section 610 of the charter.

The passage by the department of parks of the resolution by which they attempted to re-enact the ordinance then in force under the authority conferred by the Consolidation Act, where such an ordinance was not authorized by section 610 of the charter, does not make it a valid ordinance under that section, but the validity of that ordinance must be sustained, if at all, under section 688 of the Consolidation Act as amended by the act of 1896; and that act did not prescribe as a penalty for a violation of an ordinance adopted in pursuance of the authority there given, that the person violating it should be guilty of a misdemeanor. I can find, therefore, no authority for the conviction of these defendants in any of these provisions of the statute relied upon by counsel to the corporation.

Irrespective of this, however, I think the attempt of this statute to control the use to which the owners of private property should put their property is a substantial appropriation of that property without compensation, and, therefore, in violation of section 6 of article 1 of the Constitution. It is not claimed that these advertisements affected the health or welfare of the community. They were not dangerous to pedestrians using the streets; did not in any respect interfere with the public parks, places, streets or avenues; created no condition which would justify the interference of the police power of the State, but prevented a use of private property by the owners unless such use was approved by the park department. L suppose it would not be claimed that the Legislature would have power to provide that no building of any kind should be erected upon such property. The provision of the Constitution (supra) that private property shall not be taken for public use without compensation certainly prohibits the Legislature from interfering with the use of private property by its owner unless such use would justify the interference by the State under what is called the police power. But the placing of a fence upon private property upon which is displayed an advertisement, is certainly no more subject to the police power of the State than would be the placing upon the property of a shop, house or other structure. The prohibition of such a use of the property does not come within any of the definitions of the police power to which our attention has been called. While the Legislature might prohibit such a structure as would expose those usnigThe parks or streets to danger; or prevent the exhibits of immoral advertisements or pictures, or the use of property in a way that would endanger the health of the community, it has no power to” prevent the owners of private property adjacent to a public park from using their property to advertise what they or others have to sell so long as the public health or welfare is not affected; and being without power to prohibit, they are without power to require the consent of any public officer before the property can be used for: that purpose. If this ordinance were enforced no owner of a house could place upon it a notice that it was for rent or for sale, without the consent of the park board. Tío person keeping a shop upon any street adjacent to the park could place his name upon the front of the building, or an advertisement of the business that he carried on, without the consent of the department. It seems to me that this is an attempt to appropriate private property for public use without compensation and without due process of law, and prohibited by section 6 of article 1 of the Constitution. As was said by Judge Earl in Matter of Jacobs (98 N. Y. 98), “ Property maybe destroyed or its value may be annihilated; it is owned and kept for some useful purpose and it has no value unless it can be used; * * * and hence any law which destroys it or its value or takes away any of its essential attributes deprives the owner of his property.” And in People ex rel. Manhattan Savings Inst. v. Otis (90 N. Y. 48), Judge Andrews says: “ Depriving an owner of property of one of its essential attributes is depriving him of his property within the constitutional provision.” This legislation, in my view, attempts to deprive the owner of property of his right to use it to advertise his own or another person’s business and as such takes from the owner property which cannot be taken without compensation or by due process of law. That this legislation is not within the police power is settled by Matter of Jacobs {supra), where Judge Earl says: “ Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded.” And this is what is attempted by this legislation.

The case of City of Rochester v. West (164 N. Y. 510) is not in conflict with this view. All that was held in that case was that the Legislature had power to confer upon a municipal corporation authority to regulate boards erected for the purpose of billposting so far as such legislation was necessary to the safety or welfare of the inhabitants of the city or persons passing along the streets ; and that was what the ordinance then before the court was intended to accomplish. A very different question- would have been presented if the ordinance had attempted to prohibit the owners of property from displaying any advertisements upon their property.

The judgment appealed from should be reversed and the defendants discharged.

Laugbxin, J., concurred; Van Brunt, P. J., concurred on last ground; Patterson and Hatch, J J., dissented.

Judgment reversed and defendants discharged.  