221 U.S.

Argument for Defendant in Error.

Colony R. R. Co., 131 Massachusetts, 258, 272; Pears v. Manhattan R. R. Co., N. Y. L. J., Jan. 3, 1890; Pittsburg Traction Co. v. Seidell, 6 Pa. Dist. (C. P.) 414; National Car Adv. Co. v. L. & N. R. R. Co., 110 Virginia, 413.

The attempted exercise of powers which are not incidental to those which are either expressly granted or necessarily implied, is ultra vires. Pearce v. Madison &c. R. R. Co., 21 How. (U. S.) 441; Wiswall v. Plank Road Co., 56 N. Car. 183; Downing v. Mt. Wash. Road Co., 40 N. H. 230; Penna. Co. v. Dandridge, 8 Gill & J. (Md.) 248. See also Abbott v. Baltimore Packet Co., 1 Md. Ch. Dec. 542; N. O., Florida & H. S. Co. v. Ocean Dry Dock Co., 28 La. Ann. 173.

The advertisements in question constitute a violation of the city ordinances. Dry Dock, E. B. & B. R. R. Co. v. The Mayor &c., 47 Hun, 221.

The automobile stages of the plaintiff in error are vehicles of some description. They were attempted to be employed in a dual capacity, as stage coaches for the transportation of passengers; and as advertising wagons. Luce v. Hassam, 76 Vermont, 450.

The ordinance in question is a valid exercise of the legislative power of the city. The subject-matter of the legislation is within the powers of the corporation adopting it; it is in proper form; and it is perfectly reasonable. Ringelstein v. Chicago, 128 Ill. App. 483; McQuillan on Municipal Ordinances, § 186; Wettengel v. City of Denver, 20 Colorado, 552; Commonwealth v. McCafferty, 145 Massachusetts, 384; Commonwealth v. Plaisted, 148 Massachusetts, 375; Commonwealth v. Ellis, 158 Massachusetts, 555; Philadelphia v. Brabender, 201 Pa. St. 574; Rochester v. West, 164 N. Y. 510.

The validity of a statute or ordinance is not to be determined from its effect in a particular case, but from its general purpose and its efficiency to effect that end. Gunning System v. City of Buffalo, 75 App. Div. 31;

Chicago v. Gunning System, 214 Illinois, 628; S. C., 2 Am. & Eng. Ann. Cases, 897.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Plaintiff in error, which was also plaintiff in the court below, and we shall so refer to it, brought suit against the city in the Supreme Court of the County of New York. It alleged the following: It is a corporation duly formed and organized under the laws of the State of New York, and engaged in the operation of automobile stages upon routes extending along Fifth Avenue and other streets in the city of New York under and in pursuance of certain acts of the legislature of the State, having acquired, under various acts, all the property rights and franchises of the Fifth Avenue Transportation Company, Limited.

The city is a municipal corporation, organized under the laws of the State, and exercises its powers through officers and departments.

The plaintiff has operated stages upon its routes, and has used the interior of them for the display of advertising signs or matter, for many years. In May, 1905, with the complete substitution of automobile stages for horse stages, which was effected in July, 1907, it began to utilize and now utilizes, the exterior of its stages for such purposes, which it is able to do by reason of the necessary difference in form of the new vehicle and in the consequent increase of space adapted to use in the display of advertising matter, and from such use it is enabled to secure a substantial income from portions of its property not susceptible of being used otherwise for the purpose of its business.

The city, through its various officials, has interfered with such advertising, and intends to interfere with the operations of plaintiff's stages; and to prevent it from maintaining advertising signs upon the exterior thereof,

which will materially impair plaintiff's business, reduce its income, interfere with the exercise of its rights and franchises under the laws of the State, and "infringe its constitutional right to freedom in the use of its property." The damage to plaintiff will be irreparable, and no adequate compensation therefor can be obtained at law.

A permanent injunction was prayed.

The city answered, denying some allegations and admitting others, and set out a number of ordinances which precede that in controversy and set out the latter as follows:

"No advertising trucks, vans or wagons shall be allowed in the streets of the Borough of Manhattan, under a penalty of ten dollars for each offense. Nothing herein contained shall prevent the putting of business notices upon ordinary business wagons, so long as such wagons are engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising."

And it alleged that it was its duty to prevent "the display of the advertisements on the outside of the stages operated by complainant on Fifth Avenue."

After hearing, a judgment was entered dismissing the complaint. It was affirmed successively by the Appellate Division and by the Court of Appeals.

The trial court found that plaintiff had succeeded to all of the "rights, privileges, franchises and properties" of the Fifth Avenue Transportation Company, having the right to use automobile power instead of horses. The franchises of the transportation company were to carry passengers and property for hire; to establish, maintain and operate stage routes for public use in the conveyance of persons and property and to receive compensation therefor. It had other franchises not material to mention.

The court also found the following facts:

"The automobile omnibuses now operated over the routes of the plaintiff herein have two decks, on the lower of which are longitudinal seats for sixteen passengers, and

on the upper deck there are transverse seats for eighteen passengers. There is a stairway leading from the rear platform of the lower deck to the upper deck. Said stairway has a screen extending from the top to the bottom.

"The space used for advertising purposes on the vehicles of the plaintiff herein, is leased to the Railway Advertising Company, under an agreement dated May 11, 1907, from which the plaintiff herein receives the sum of $10,000 per annum, plus the sum of $200 per bus for exterior advertising. There was an agreement dated May 15, 1905, relating to interior advertising."

Advertising signs of various colors are upon the stairs of the elevated railways, in places on the elevated structures in the city of New York, and on the walls of the underground stations of the subway railroad company.

The advertising signs on plaintiff's coaches have no relation to their operation or to the physical comfort, convenience or health of the passengers or the public, and are merely an incident to the use of the stages in the operation of the franchise belonging to it for the transportation of passengers.

The findings of fact are very descriptive as to the size and character of the signs used. There are two, 13 feet by 2 feet 7 inches; another, 2 by 61⁄2 feet; another, 4 by 2 feet; another, 8 feet by 20 inches; another, 2 feet 4 inches square; and others, 2 feet in length. And the signs or the pictures painted on them were in pink, blue, black, bright yellow, drab and red.

It was concluded from the facts found that the advertisements were not a nuisance; could not be judicially condemned on æsthetic grounds; that the health, safety or comfort of passengers and the public are not injured by them; that plaintiff failed to prove that their display was a necessary incident to the operation of the stages; that by its franchise it did not acquire the right to display advertisements for hire, and that such display was

ultra vires, being neither incidental to nor implied by the powers conferred by plaintiff's charter or by law. It was further concluded that the streets of New York could only be used for street purposes and that the display of advertising signs by plaintiff was not a street use.

The Appellate Division affirmed the judgment. The court said: "The complaint was properly dismissed and the judgment would be affirmed without opinion were it not for the fact that we do not concur in the reasons assigned by the learned justice at Special Term for making this disposition of the case. From the facts proved, and the findings made, a case is not presented to a court of equity which calls for the exercise of its powers." The court further expressed the view that plaintiff had a right under its charter to operate its stages, but whether it could or not, as an incident to such right, display signs or advertisements must be determined when the question arose and not, as in the pending case, upon a supposition which had for its foundation a mere threat which might never be carried into effect. And the court intimated that it was the concern of the State and not of the city if plaintiff was violating its charter; and further intimated that the advertisements did not violate the ordinance.

The Court of Appeals, however, agreed with the trial court. It reviewed the laws which constituted the charter powers of the Fifth Avenue Transportation Company and the laws by which plaintiff succeeded to the transportation company and its powers, and decided that the franchise of plaintiff "does not expressly include the right to use the public streets mentioned therein for advertising purposes or to carry or maintain exterior advertisements on its stages and the carrying of such advertisements is not a necessary or essential incident to its express franchise rights. Such exterior advertising is in no way related to the carrying of passengers for hire." The court also decided that the city had the power to pass the ordinance