C44 Churchill & Tait vs. Rafferty

8/18/2019 C44 Churchill & Tait vs. Rafferty

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Churchill vs. Raferty

Test or Valid Exercise o Police Power

Facts:

The case arises rom the act that deendant, Collector o nternal Revenue,would li!e to destroy or remove any si"n, si"n#oard, or #ill#oard, the$ro$erty o the $laintifs, or the sole reason that such si"n, si"n#oard, or#ill#oard is, or may #e ofensive to the si"ht. The $laintifs alle"e otherwise.

ssue: %as there valid exercise o $olice $ower in this case&

'eld: (es. There can #e no dou#t that the exercise o the $olice $ower o thePhili$$ine )overnment #elon"s to the *e"islature and that this $ower islimited only #y the +cts o Con"ress and those undamentals $rinci$les which

lie at the oundation o all re$u#lican orms o "overnment. +n +ct o the*e"islature which is o#viously and undou#tedly orei"n to any o the$ur$oses o the $olice $ower and intereres with the ordinary enoyment o $ro$erty would, without dou#t, #e held to #e invalid. -ut where the +ct isreasona#ly within a $ro$er consideration o and care or the $u#lic health,saety, or comort, it should not #e distur#ed #y the courts.The $ower vested in the le"islature #y the constitution to ma!e, ordain, andesta#lish all manner o wholesome and reasona#le laws, statutes, andordinances, either with $enalties or without, not re$u"nant to theconstitution, as they shall ud"e to #e or the "ood and welare o thecommonwealth, and o the su#ects o the same.

The $olice $ower o the /tate, so ar, has not received a ull and com$letede0nition. t may #e said, however, to #e the ri"ht o the /tate, or stateunctionary, to $rescri#e re"ulations or the "ood order, $eace, health,$rotection, comort, convenience and morals o the community, which do not... violate any o the $rovisions o the or"anic law.t 1the $olice $ower2 has or its o#ect the im$rovement o social andeconomic conditioned afectin" the community at lar"e and collectively witha view to #rin" a#out he "reatest "ood o the "reatest num#er.Courts haveconsistently and wisely declined to set any 0xed limitations u$on su#ectscallin" or the exercise o this $ower. t is elastic and is exercised rom timeto time as varyin" social conditions demand correction.

t may #e said in a "eneral way that the $olice $ower extends to all the"reat $u#lic needs. t may #e $ut orth in aid o what is sanctioned #y usa"e,or held #y the $revailin" morality or stron" and $re$onderant o$inion to #e"reatly and immediately necessary to the $u#lic welare.t is much easier to $erceive and reali3e the existence and sources o this$olice $ower than to mar! its #oundaries, or to $rescri#e limits to itsexercise.


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Re$u#lic o the Phili$$inesSUPREME COURT4anila

E5 -+5C

G.R. No. L-10572 December 21, 1915

FRANCS A. C!URC!LL "#$ STE%ART TAT, $laintifs6a$$ellees,vs.

&AMES &. RAFFERT', Co((ec)or o* #)er#"( Re+e#e, deendant6a$$ellant.

Attorney-General Avanceña for appellant. Aitken and DeSelms for appellees.

TRENT, J.:

The ud"ment a$$ealed rom in this case $er$etually restrains and $rohi#itsthe deendant and his de$uties rom collectin" and enorcin" a"ainst the$laintifs and their $ro$erty the annual tax mentioned and descri#ed insu#section 7#8 o section 9 o +ct 5o. ;


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ri"ht o a dissatis0ed tax$ayers to use an exce$tional remedy to test thevalidity o any tax or to determine any other Auestion connected therewith,and the Auestion whether the remedy #y inunction is exce$tional.

Preventive remedies o the courts are extraordinary and are not the usual

remedies. The ori"in and history o the writ o inunction show that it hasalways #een re"arded as an extraordinary, $reventive remedy, asdistin"uished rom the common course o the law to redress evils ater theyhave #een consummated. 5o inunction issues as o course, #ut is "rantedonly u$on the oath o a $arty and when there is no adeAuate remedy at law. The )overnment does, #y section 9


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The ri"ht and $ower o udicial tri#unals to declare whetherenactments o the le"islature exceed the constitutional limitations andare invalid has always #een considered a "rave res$onsi#ility, as wellas a solemn duty. The courts invaria#ly "ive the most careulconsideration to Auestions involvin" the inter$retation and a$$lication

o the Constitution, and a$$roach constitutional Auestions with "reatdeli#eration, exercisin" their $ower in this res$ect with the "reatest$ossi#le caution and even reluctance@ and they should never declare astatute void, unless its invalidity is, in their ud"ment, #eyondreasona#le dou#t. To ustiy a court in $ronouncin" a le"islative actunconstitutional, or a $rovision o a state constitution to #e incontravention o the Constitution o the nited /tates, the case must#e so clear to #e ree rom dou#t, and the conJict o the statute withthe constitution must #e irreconcila#le, #ecause it is #ut a decentres$ect to the wisdom, the inte"rity, and the $atriotism o thele"islative #ody #y which any law is $assed to $resume in avor o its

validity until the contrary is shown #eyond reasona#le dou#t. Thereore, in no dou#tul case will the udiciary $ronounce a le"islativeact to #e contrary to the constitution. To dou#t the constitutionality o alaw is to resolve the dou#t in avor o its validity. 7B Rulin" Case *aw,secs. 9, ;, and


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/ection o the Phili$$ine -ill $rovides: That no law shall #e enacted in saidslands which shall de$rive any $erson o lie, li#erty, or $ro$erty without due$rocess o law, or deny to any $erson therein the eAual $rotection o thelaw.

The ori"in and history o these $rovisions are well6!nown. They are ound insu#stance in the Constitution o the nited /tates and in that o ever state inthe nion.

/ection ustice 4iller, said: there existed in the courts, state or5ational, any "eneral $ower o im$edin" or controllin" the collection o taxes, or relievin" the hardshi$ incident to taxation, the very existence o the"overnment mi"ht #e $laced in the $ower o a hostile udiciary.7Mows vs. The City o Chica"o, 99 %all., 9D.8 %hile a ree course o remonstrance and a$$eal is allowed within the de$artments #eore themoney is 0nally exacted, the )eneral )overnment has wisely made the$ayment o the tax claimed, whether o customs or o internal revenue, acondition $recedent to a resort to the courts #y the $arty a"ainst whom thetax is assessed. n the internal revenue #ranch it has urther $rescri#ed that

no such suit shall #e #rou"ht until the remedy #y a$$eal has #een tried@ and,i #rou"ht ater this, it must #e within six months ater the decision on thea$$eal. %e re"ard this as a condition on which alone the "overnmentconsents to liti"ate the lawulness o the ori"inal tax. t is not a hardcondition. Few "overnments have conceded such a ri"ht on any condition. the com$liance with this condition reAuires the $arty a""rieved to $ay themoney, he must do it.


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+"ain, in /tate Railroad Tax Cases 7=; ./., , B9


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The 4unici$al Code 7+ct 5o. D;8 and the Provincial )overnment +ct 75o.Danuary 9, 9=, and $ossi#ly the old customsduties which disa$$eared in Fe#ruary, 9=;.


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/ection B o the Hr"anic +ct 75o. 9une 9B, 9=9, $rovidesthat Courts o First nstance shall have ori"inal urisdiction:

;. n all civil actions which involve the ... le"ality o any tax, im$ost, orassessment, . . . .

. /aid courts and their ud"es, or any o them, shall have $ower toissue writs o inunction, mandamus,certiorari, $rohi#ition, quowarranto, and habeas corpus in their res$ective $rovinces anddistricts, in the manner $rovided in the Code o Civil Procedure.

The $rovisions o the Code o Civil Procedure 7+ct 5o. 9=8, efective Hcto#er

9, 9=9, which deals with the su#ect o inunctions, are sections 9B; to 9;,inclusive. nunctions, as here de0ned, are o two !inds@ $reliminary and 0nal. The ormer may #e "ranted at any time ater the commencement o theaction and #eore 0nal ud"ment, and the latter at the termination o the trialas the relie or $art o the relie $rayed or 7sec. 9B;8. +ny ud"e o the/u$reme Court may "rant a $reliminary inunction in any action $endin" inthat court or in any Court o First nstance. + $reliminary inunction may also#e "ranted #y a ud"e o the Court o First nstance in actions $endin" in hisdistrict in which he has ori"inal urisdiction 7sec. 9B


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or im$ost im$osed #y it on condition that this #e done in ordinary civilactions ater the taxes or exactions shall have #een $aid. -ut it is said that$ara"ra$h ; coners ori"inal urisdiction u$on Courts o First nstance to hearand determine all civil actions which involve the validity o any tax, im$ostor assessment, and that i the all6inclusive words all and any #e "iven

their natural and unrestricted meanin", no action wherein that Auestion isinvolved can arise over which such courts do not have urisdiction.7-arrameda vs. 4oir, ; Phil. Re$., ??.8 This is true. -ut the term civilactions had its well de0ned meanin" at the time the $ara"ra$h wasenacted. The same le"islative #ody which enacted $ara"ra$h ; on >une 9B,9=9, had, ust a ew months $rior to that time, de0ned the only !ind o action in which the le"ality o any tax im$osed #y it mi"ht #e assailed. 7/ec.D?, +ct D;, enacted >anuary


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em$ower Courts o 0rs nstance to interere #y inunction with the collectiono the taxes in Auestion in this case.1awphil.net

we are in error as to the sco$e o $ara"ra$h ; and , supra, and theCommission did intend to coner the $ower u$on the courts to restrain the

collection o taxes, it does not necessarily ollow that this $ower or urisdiction has #een ta!en away #y section 9


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9. That in all cases in which an oLcer, char"ed #y law with thecollection o revenue due the /tate, shall institute any $roceedin", orta!e any ste$s or the collection o the same, alle"ed or claimed to #edue #y said oLcer rom any citi3en, the $arty a"ainst whom the$roceedin" or ste$ is ta!en shall, i he conceives the same to #e unust

or ille"al, or a"ainst any statute or clause o the Constitution o the/tate, $ay the same under $rotest@ and, u$on his ma!in" said$ayment, the oLcer or collector shall $ay such revenue into the /tate Treasury, "ivin" notice at the time o $ayment to the Com$troller thatthe same was $aid under $rotest@ and the $arty $ayin" said revenuemay, at any time within thirty days ater ma!in" said $ayment, and notlon"er thereater, sue the said oLcer havin" collected said sum, orthe recovery thereo. +nd the same may #e tried in any court havin"the urisdiction o the amount and $arties@ and, i it #e determined thatthe same was wron"ully collected, as not #ein" due rom said $arty tothe /tate, or any reason "oin" to the merits o the same, then the

court tryin" the case may certiy o record that the same waswron"ully $aid and ou"ht to #e reunded@ and thereu$on theCom$troller shall issue his warrant or the same, which shall #e $aid in$reerence to other claims on the Treasury.

;. That there shall #e no other remedy, in any case o the collection o revenue, or attem$t to collect revenue ille"ally, or attem$t to collectrevenue in unds only receiva#le #y said oLcer under the law, thesame #ein" other or diferent unds than such as the tax $ayer maytender, or claim the ri"ht to $ay, than that a#ove $rovided@ and no writor the $revention o the collection o any revenue claimed, or to

hinder or delay the collection o the same, shall in anywise issue,either inunction, su$ersedeas, $rohi#ition, or any other writ or $rocesswhatever@ #ut in all cases in which, or any reason, any $erson shallclaim that the tax so collected was wron"ully or ille"ally collected, theremedy or said $arty shall #e as a#ove $rovided, and in no othermanner.

n discussin" the adeAuacy o the remedy $rovided #y the Tennessee*e"islature, as a#ove set orth, the /u$reme Court o the nited /tates, inthe case ust cited, said: This remedy is sim$le and efective. + suit at law torecover money unlawully exacted is as s$eedy, as easily tried, and less

com$licated than a $roceedin" #ymandamus. ... n revenue cases, whetherarisin" u$on its 7nited /tates8 nternal Revenue *aws or those $rovidin" orthe collection o duties u$on orei"n im$orts, it 7nited /tates8 ado$ts therule $rescri#ed #y the /tate o Tennessee. t reAuires the contestant to $aythe amount as 0xed #y the )overnment, and "ives him $ower to sue thecollector, and in such suit to test the le"ality o the tax. There is nothin"ille"al or even harsh in this. t is a wise and reasona#le $recaution or thesecurity o the )overnment.


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Thomas C. Platt commenced an action in the Circuit Court o the nited/tates or the Eastern Mistrict o Tennessee to restrain the collection o alicense tax rom the com$any which he re$resented. The deense was thatsections 9 and ; o the +ct o 9D


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Constitution, and not $rohi#ited #y law. ... They shall also have $ower toissue writs o habeas corpus, mandamus, inunction, quo warranto, certiorari,and other writs necessary to carry into efect their orders, ud"ments, anddecrees.

4r. >ustice Cham$lin, s$ea!in" or the court, said: have no dou#t that the*e"islature has the constitutional authority, where it has $rovided a $lain,adeAuate, and com$lete remedy at law to recover #ac! taxes ille"allyassessed and collected, to ta!e away the remedy #y inunction to restraintheir collection.

/ection = o the Phili$$ine -ill reads in $art as ollows: That the /u$remeCourt and the Courts o First nstance o the Phili$$ine slands shall $ossessand exercise urisdiction as heretoore $rovided and such additional urisdiction as shall hereater #e $rescri#ed #y the )overnment o saidslands, su#ect to the $ower o said )overnment to chan"e the $ractice and

method o $rocedure.

t will #e seen that this section has not ta!en away rom the Phili$$ine)overnment the $ower to chan"e the $ractice and method o $rocedure. sections 9


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%e thin! the re"ulation o the statute "ave him an a#undant means o enorcin" such ri"ht as he $ossessed. t $rovided that he mi"ht $ay his claimto the collector under $rotest, "ivin" notice thereo to the Com$troller o the Treasury@ that at any time within thirty days thereater he mi"ht sue theoLcer ma!in" the collection@ that the case should #e tried #y any court

havin" urisdiction and, i ound in avor o the $laintif on the merits, thecourt should certiy that the same was wron"ully $aid and ou"ht to #ereunded and the Com$troller should thereu$on issue his warrant thereor,which should #e $aid in $reerence to other claim on the Treasury.

-ut "reat stress is laid u$on the act that the $laintifs in the case underconsideration are una#le to $ay the taxes assessed a"ainst them and that i the law is enorced, they will #e com$elled to sus$end #usiness. This $ointmay #e #est answered #y Auotin" rom the case o (oun"#lood vs. /exton7ud"e Cooley, s$ea!in" or the court, said: -ut i this consideration is suLcient to ustiy the transer o a controversy rom a

court o law to a court o eAuity, then every controversy where money isdemanded may #e made the su#ect o eAuita#le co"ni3ance. To enorcea"ainst a dealer a $romissory note may in some cases as efectually #rea!u$ his #usiness as to collect rom him a tax o eAual amount. This is not whatis !nown to the law as irre$ara#le inury. The courts have never reco"ni3edthe conseAuences o the mere enorcement o a money demand as allin"within that cate"ory.

Certain s$eci0ed sections o +ct 5o. ;


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there is no reason or any su""estion or sus$icion that it is not a #ona 0decontroversy. The le"al $oints involved in the merits have #een $resentedwith orce, clearness, and "reat a#ility #y the learned counsel o #oth sides. the law assailed were still in orce, we would eel that an o$inion on itsvalidity would #e usti0a#le, #ut, as the amendment #ecame efective on

>anuary 9, 9=9, we thin! it advisa#le to $roceed no urther with this #rancho the case.

The next Auestion arises in connection with the su$$lementary com$laint,the o#ect o which is to enoin the Collector o nternal Revenue romremovin" certain #ill#oards, the $ro$erty o the $laintifs located u$on$rivate lands in the Province o Ri3al. The $laintifs alle"e that the #ill#oardshere in Auestion in no sense constitute a nuisance and are not deleteriousto the health, morals, or "eneral welare o the community, or o any$ersons. The deendant denies these alle"ations in his answer and claimsthat ater due investi"ation made u$on the com$laints o the -ritish and

)erman Consuls, he decided that the #ill#oard com$lained o was and still isofensive to the si"ht, and is otherwise a nuisance. The $laintifs $roved #y4r. Churchill that the #ill#oards were Auite a distance rom the road and thatthey were stron"ly #uilt, not dan"erous to the saety o the $eo$le, andcontained no advertisin" matter which is 0lthy, indecent, or deleterious tothe morals o the community. The deendant $resented no testimony u$onthis $oint. n the a"reed statement o acts su#mitted #y the $arties, the$laintifs admit that the #ill#oards mentioned were and still are ofensive tothe si"ht.

The $ertinent $rovisions o su#section 7#8 o section 9 o +ct 5o. ;ustice whosedecision thereon shall #e 0nal.

The +ttorney6)eneral, on #ehal o the deendant, says: The Auestion whichthe case $resents under this head or determination, resolves itsel into this


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inAuiry: s the su$$ression o advertisin" si"ns dis$layed or ex$osed to $u#licview, which are admittedly ofensive to the si"ht, conducive to the $u#licinterest&

+nd cunsel or the $laintifs states the Auestion thus: %e contend that that

$ortion o section 9 o +ct 5o. ;


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0nal or conclusive, #ut is su#ect to the su$ervision o the courts.7*awton vs. /teele, 9; ./., 9


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not encroach on a li!e $ower vested in con"ress or state le"islatures #y theederal constitution, or does not violate the $rovisions o the or"anic law@ andit has #een ex$ressly held that the ourteenth amendment to the ederalconstitution was not desi"ned to interere with the exercise o that $ower #ythe state.

n Peo$le vs. -ra3ee 714ich., 9=9?2, 9?= 5.%., 9


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cases $ro$erly within the sco$e o the $olice $ower are de0cient. t isnecessary, thereore, to con0ne our discussion to the $rinci$le involved anddetermine whether the cases as they come u$ are within that $rinci$le. The#asic idea o civil $olity in the nited /tates is that "overnment shouldinterere with individual efort only to the extent necessary to $reserve a

healthy social and economic condition o the country. /tate intererence withthe use o $rivate $ro$erty may #e exercised in three ways. First, throu"h the$ower o taxation, second, throu"h the $ower o eminent domain, and third,throu"h the $olice $ower. -uy the 0rst method it is assumed that theindividual receives the eAuivalent o the tax in the orm o $rotection and#ene0t he receives rom the "overnment as such. -y the second method hereceives the mar!et value o the $ro$erty ta!en rom him. -ut under thethird method the #ene0ts he derived are only such as may arise rom themaintenance o a healthy economic standard o society and is oten reerredto as damnum absque inuria. 7Com. vs. Plymouth Coal Co. ;


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Ct. 1Fe#. ;


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The advertisin" industry is a le"itimate one. t is at the same time a causeand an efect o the "reat industrial a"e throu"h which the world is now$assin". 4illions are s$ent each year in this manner to "uide the consumerto the articles which he needs. The sense o si"ht is the $rimary essential toadvertisin" success. -ill#oard advertisin", as it is now conducted, is a

com$aratively recent orm o advertisin". t is conducted out o doors andalon" the arteries o travel, and com$els attention #y the strate"ic locationso the #oards, which o#struct the ran"e o vision at $oints where travelersare most li!ely to direct their eyes. -eautiul landsca$es are marred or maynot #e seen at all #y the traveler #ecause o the "audy array o $ostersannouncin" a $articular !ind o #rea!ast ood, or underwear, the comin" o a circus, an incom$ara#le soa$, nostrums or medicines or the curin" o allthe ills to which the Jesh is heir, etc. t is Auite natural or $eo$le to $rotesta"ainst this indiscriminate and wholesale use o the landsca$e #y advertisersand the intrusion o tradesmen u$on their hours o leisure and relaxationrom wor!. Hutdoor lie must lose much o its charm and $leasure i this orm

o advertisin" is $ermitted to continue unham$ered until it converts thestreets and hi"hways into verita#le canyons throu"h which the world musttravel in "oin" to wor! or in search o outdoor $leasure.

The success o #ill#oard advertisin" de$ends not so much u$on the use o $rivate $ro$erty as it does u$on the use o the channels o travel used #y the"eneral $u#lic. /u$$ose that the owner o $rivate $ro$erty, who sovi"orously o#ects to the restriction o this orm o advertisin", should reAuirethe advertiser to $aste his $osters u$on the #ill#oards so that they wouldace the interior o the $ro$erty instead o the exterior. -ill#oard advertisin"would die a natural death i this were done, and its real de$endency not

u$on the unrestricted use o $rivate $ro$erty #ut u$on the unrestricted useo the $u#lic hi"hways is at once a$$arent. Hstensi#ly located on $rivate$ro$erty, the real and sole value o the #ill#oard is its $roximity to the $u#licthorou"hares. 'ence, we conceive that the re"ulation o #ill#oards and theirrestriction is not so much a re"ulation o $rivate $ro$erty as it is a re"ulationo the use o the streets and other $u#lic thorou"hares.

%e would not #e understood as sayin" that #ill#oard advertisin" is not ale"itimate #usiness any more than we would say that a livery sta#le or anautomo#ile "ara"e is not. Even a #ill#oard is more si"htly than $iles o ru##ish or an o$en sewer. -ut all these #usinesses are ofensive to the

senses under certain conditions.

t has #een ur"ed a"ainst ministerin" to the sense o si"ht that tastes are sodiversi0ed that there is no sae standard o le"islation in this direction. %eanswer in the lan"ua"e o the /u$reme Court in 5o#le /tate -an! vs.'as!ell7;9= ./., 9?8, and which has already #een ado$ted #y several state courts7see supra8, that the $revailin" morality or stron" and $re$onderatin"o$inion demands such le"islation. The a"itation a"ainst the unrestrained


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develo$ment o the #ill#oard #usiness has $roduced results in nearly all thecountries o Euro$e. 7Ency. -ritannica, vol. 9, $$. ;


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$olice $ower o the state. -ut we are o the o$inion, as a#ove indicated, thatunsi"htly advertisements or si"ns, si"n#oards, or #ill#oards which areofensive to the si"ht, are not disassociated rom the "eneral welare o the$u#lic. This is not esta#lishin" a new $rinci$le, #ut carryin" a well reco"ni3ed$rinci$le to urther a$$lication. 7Fruend on Police Power, $. 9BB.8

For the ore"oin" reasons the ud"ment a$$ealed rom is here#y reversedand the action dismissed u$on the merits, with costs. /o ordered.

Arellano! ".#.! $orres! "arson! and Araullo! ##.! concur.

MEC/H5 H5 T'E 4HTH5 FHR + RE'E+R5), >+5+R( ;?, 9=9B.

TRENT, J.:

Counsel or the $laintifs call our attention to the case o %& parte (oun" 7;=

./., 9;


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u$on the Auestion whether the rates as $rovided #y the acts are nottoo low, and thereore invalid. The distinction is o#vious #etween acase where the validity o the acts de$ends u$on the existence o aact which can #e determined only ater investi"ation o a verycom$licated and technical character, and the ordinary case o a statute

u$on a su#ect reAuirin" no such investi"ation and over which the urisdiction o the le"islature is com$lete in any event.

+n examination o the sections o our nternal Revenue *aw and o thecircumstances under which and the $ur$oses or which they were enacted,will show that, unli!e the statutes under consideration in the a#ove citedcase, their enactment involved no attem$t on the $art o the *e"islature to$revent dissatis0ed tax$ayers rom resortin" to the courts to test thevalidity o the le"islation@ no efort to $revent any inAuiry as to their validity.%hile section 9


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"ranted at the commencement o the action, was continued in orce.$on a$$eal, the su$reme court o the /tate o Tennessee decided thatthe suit was one a"ainst the /tate and reversed the ud"ment o theChancellor. n the /u$reme Court o the nited /tates, where the casewas reviewed u$on a writ o error, the contentions o the $arties were

stated #y the court as ollows: t is contended #y deendant in errorthat this court is without urisdiction #ecause no matter sou"ht to #eliti"ated #y $laintif in error was determined #y the /u$reme Court o Tennessee. The court sim$ly held, it is $aid, that, under the laws o the/tate, it had no urisdiction to entertain the suit or any $ur$ose. +nd itis insisted hat this holdin" involved no Federal Auestion, #ut only the$owers and urisdiction o the courts o the /tate o Tennessee, inres$ect to which the /u$reme Court o Tennessee is the 0nal ar#iter.

H$$osin" these contentions, $laintif in error ur"es that whether a suitis one a"ainst a /tate cannot de$end u$on the declaration o a statute,

#ut de$ends u$on the essential nature othe suit, and that the/u$reme Court reco"ni3ed that the statute aded nothin" to theaxiomatic $rinci$le that the /tate, as a soverei"n, is not su#ect to suitsave #y its own consent.+nd it is hence insisted that the court #ydismissin" the #ill "ave efect to the law which was attac!ed. t isurther insisted that the #ill undou#tedly $resent ri"hts under theConstitution o the nited /tates and conditions which entitle $laintif in error to an inunction or the $rotection o such ri"hts, and that astatute o the /tate which o$erates to deny such ri"hts, or such relie,Qis itsel in conJict with the Constitution o the nited /tates.

That statute o Tennessee, which the su$reme court o that /tate construedand held to #e $rohi#itory o the suit, was an act $assed Fe#ruary ;D, 9D


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the Fourteenth +mendment, which is directed at state action, could #enulli0ed as to much o its o$eration. ... t #ein" then the ri"ht o a $arty to #e$rotected a"ainst a law which violates a constitutional ri"ht, whether #y itsterms or the manner o its enorcement, it is maniest that a decision whichdenies such $rotection "ives efect to the law, and the decision is reviewa#le

#y this court.

The court then $roceeded to consider whether the law o 9D== would, i administered a"ainst the oils in Auestion, violate any constitutional ri"ht o the $laintif and ater 0ndin" and adud"in" that the oils were not inmovement throu"h the /tates, that they had reached the destination o their0rst shi$ment, and were held there, not in necessary delay at means o trans$ortation #ut or the #usiness $ur$oses and $ro0t o the com$any, andrestin" its ud"ment u$on the taxin" $ower o the /tate, aLrmed the decreeo the su$reme court o the /tate o Tennessee.

From the ore"oin" it will #e seen that the /u$reme Court o Tennesseedismissed the case or want o urisdiction #ecause the suit was one a"ainstthe /tate, which was $rohi#ited #y the Tennessee *e"islature. The /u$remeCourt o the nited /tates too! urisdiction o the controversy or the reasonsa#ove Auoted and sustained the +ct o 9D== as a revenue law.

The case o Tennessee vs. /need 7=B ./., B=8, and /helton vs. Platt 79


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commissioner o #uildin"s #eore a $ermit shall #e issued or the erection,construction or location o such #ill6#oard or si"n6#oard.

The evidence which the llinois court relied u$on was the dan"er o 0res, theact that #ill#oards $romote the commission o various immoral and 0lthy

acts #y disorderly $ersons, and the inadeAuate $olice $rotection urnished toresidential districts. The last o#ection has no virtue unless one or the othero the other o#ections are valid. the #ill#oard industry does, in act,$romote such munici$al evils to noticea#le extent, it seems a curiousinconsistency that a maority o the $ro$erty owners on a "iven #loc! mayle"ali3e the #usiness. 'owever, the decision is undou#tedly a considera#leadvance over the views ta!en #y other hi"h courts in the nited /tates anddistin"uishes several llinois decisions. t is an advance #ecause it $ermitsthe su$$ression o #ill#oards where they are undesira#le. The ordinancewhich the court a$$roved will no dou#t cause the virtual su$$ression o the#usiness in the residential districts. 'ence, it is reco"ni3ed that under certain

circumstances #ill#oards may #e su$$ressed as an unlawul use o $rivate$ro$erty. *o"ically, it would seem that the $remise o act relied u$on is notvery solid. H#ections to the #ill#oard u$on $olice, sanitary, and moral"rounds have #een, as $ointed out #y counsel or Churchill and Tait, dulyconsidered #y numerous hi"h courts in the nited /tates, and, with oneexce$tion, have #een reected as without oundation. The exce$tion is the/u$reme Court o 4issouri, which advances $ractically the same line o reasonin" as has the llinois court in this recent case. 7/t. *ouis )unnin"+dvt. Co. vs. City o /t. *ouis, 9


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country, have the #ene0t o the ex$erience o the $eo$le o the nited/tates and may ma!e our le"islation $reventive rather than corrective. Thereare in this country, moreover, on every hand in those districts where /$anishcivili3ation has held sway or so many centuries, exam$les o architecturenow #elon"in" to a $ast a"e, and which are attractive not only to the

residents o the country #ut to visitors. the #ill#oard industry is $ermittedwithout constraint or control to hide these historic sites rom the $asser#y,the country will #e less attractive to the tourist and the $eo$le will sufer adistrict economic loss.

The motion or a rehearin" is thereore denied.

Arellano! ".#.! $orres! and "arson! ##.! concur.

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C44 Churchill & Tait vs. Rafferty

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