The Fifth Amendment relates to national action only.
A city ordinance which has been upheld by the highest court of
the state as valid under the state legislation is to be regarded by
this Court as a law of the state, and is to be tested
Such an ordinance, when dealing with a subject within the police
power, must be upheld unless shown to be clearly unreasonable,
arbitrary or discriminatory.
A city, exercising the police power, may prohibit the erection
of billboards in residence districts in the interest of the safety,
morality, health, and decency of the community.
Page 242 U. S. 527
Such a prohibition is not to be deemed unduly discriminatory
because not including fences and other structures found less likely
to become a source of public injury.
An ordinance prohibiting billboards is not invalidated by a
provision which removes the prohibition as to any billboard the
erection of which is first consented to by the owners of a majority
of the frontage on both sides of the street in the block in which
it is to be erected. Eubank v. Richmond, 226 U.
He who is not injured by the operation of a law or ordinance
cannot be said to be deprived by it of either constitutional right
or of property.
267 Ill. 344 affirmed.
The case is stated in the opinion.
MR. JUSTICE CLARKE delivered the opinion of the Court.
In this proceeding the plaintiff in error, a corporation engaged
in "outdoor advertising," claims that § 707 of Article 23 of an
ordinance of the City of Chicago, governing the erection and
maintenance of billboards in that city, is unconstitutional.
This section is as follows:
"707. Frontage consents required. It shall be unlawful for any
person, firm or corporation to erect or construct any billboard or
signboard in any block on any public street in which one-half of
the buildings on both sides of the street are used exclusively for
residence purposes without first obtaining the consent in writing
of the owners or duly authorized agents of said owners owning a
majority of the frontage of the property on both sides of the
street in the block in which such billboard or signboard
Page 242 U. S. 528
is to be erected, constructed, or located. Such written consents
shall be filed with the commissioner of buildings before a permit
shall be issued for the erection, construction, or location of such
billboard or signboard."
The plaintiff in error expressly concedes in this Court that it
is within the police power of the City of Chicago to exercise
within the city limits a reasonable regulation and control over the
construction and maintenance of billboards and other similar
structures. But it is contended that the section quoted is in terms
"an arbitrary, unrestrained" exercise of power, which, if given
effect, could be used without any regard "to the safety, health,
morals, comfort, or welfare of the public," and that it therefore
offends against the Fifth and Fourteenth Amendments to the
Constitution of the United States.
Obviously, claims made under the Fifth Amendment need not be
considered, Livingston v.
7 Pet. 469, 32 U. S. 551
Lloyd v. Dollison, 194 U. S. 445
there remains only the question whether the ordinance, if enforced,
would work "a denial to the plaintiff in error of the equal
protection of the laws" or would "deprive it of its property
without due process of law."
The claimed infirmity in the ordinance consists in the
requirement that, before any billboard or signboard of over twelve
square feet in area may be erected in any block in which one half
of the buildings are used exclusively for residence purposes, the
owners of a majority of the frontage of the property on both sides
of the street in such block shall consent in writing thereto. This,
it is claimed, is not an exercise by the city of power to regulate
or control the construction and maintenance of billboards, but is a
delegation of legislative power to the owners of a majority of the
frontage of the property in the block "to subject the use to be
made of their property by the minority owners of property in such
block to the whims and caprices of their neighbors."
Page 242 U. S. 529
The Supreme Court of the State of Illinois sustained the
validity of the ordinance in an opinion (267 Ill. 344) which
declares that the act of the legislature of that state, passed in
1912, Hurd's Stat. 1913, c. 24, par. 696, is a clear legislative
declaration that the subject of billboard advertising shall be
subject to municipal control.
It is settled for this Court by this decision that the ordinance
assailed is within the scope of the power conferred on the City of
Chicago by the legislature, that it is to be treated as proceeding
from the lawmaking power of the state, and that therefore it is a
valid ordinance unless the record shows it to be clearly
unreasonable and arbitrary. Reinman v. Little Rock,
237 U. S. 171
Upon the question of the reasonableness of the ordinance much
evidence was introduced upon the trial of the case, from which the
supreme court finds that fires had been started in the accumulation
of combustible material which gathered about such billboards, that
offensive and insanitary accumulations are habitually found about
them, and that they afford a convenient concealment and shield for
immoral practices, and for loiterers and criminals. As bearing upon
the limitation of the requirement of the section to blocks "used
exclusively for residence purposes," the Court finds that the trial
court erroneously refused to allow testimony to be introduced
tending to show that residence sections of the city did not have as
full police or fire protection as other sections have, and that the
streets of such sections are more frequented by unprotected women
and children than, and are not so well lighted as, other sections
of the city are, and that most of the crimes against women and
children are offenses against their persons.
Neglecting the testimony which was excluded by the trial court,
there remains sufficient to convincingly show the propriety of
putting billboards, as distinguished from buildings and fences, in
a class by themselves, St. Louis
Page 242 U. S. 530
Gunning Advertising Co. v. St. Louis,
235 Mo. 99, and
to justify the prohibition against their erection in residence
districts of a city in the interest of the safety, morality,
health, and decency of the community.
The claim is palpably frivolous that the validity of the
ordinance is impaired by the provision that such billboards may be
erected in such districts as are described if the consent in
writing is obtained of the owners of a majority of the frontage on
both sides of the street in any block in which such billboard is to
be erected. The plaintiff in error cannot be injured, but obviously
may be benefited, by this provision, for, without it, the
prohibition of the erection of such billboards in such residence
sections is absolute. He who is not injured by the operation of a
law or ordinance cannot be said to be deprived by it of either
constitutional right or of property. Tyler v. Judges of Ct. of
Registration, 179 U. S. 405
Plymouth Coal Co. v. Pennsylvania, 232 U.
. To this we may add that such a reference to a
neighborhood of the propriety of having carried on within it trades
or occupations which are properly the subject of regulation in the
exercise of the police power is not uncommon in laws which have
been sustained against every possible claim of unconstitutionality,
such as the right to maintain saloons, Swift v. People,
162 Ill. 534, and as to the location of garages, People v.
263 Ill. 368. Such treatment is plainly applicable
to offensive structures.
The principles governing the exercise of the police power have
received such frequent application and have been so elaborated upon
in recent decisions of this Court, concluding with Armour &
Co. v. North Dakota, 240 U. S. 510
240 U. S. 514
that further discussion of them would not be profitable, especially
in a case falling as clearly as this one does within their scope.
We therefore content ourselves with saying that, while this Court
has refrained from any attempt to define with precision the limits
of the police
Page 242 U. S. 531
power, yet its disposition is to favor the validity of laws
relating to matters completely within the territory of the state
enacting them, and it so reluctantly disagrees with the local
legislative authority, primarily the judge of the public welfare,
especially when its action is approved by the highest court of the
state whose people are directly concerned, that it will interfere
with the action of such authority only when it is plain and
palpable that it has no real or substantial relation to the public
health, safety, morals, or to the general welfare. Jacobson v.
Massachusetts, 197 U. S. 11
197 U. S. 30
And this, for the reasons stated, cannot be said of the ordinance
which we have here.
The plaintiff in error relies chiefly upon Eubank v.
Richmond, 226 U. S. 137
sufficient distinction between the ordinance there considered and
the one at bar is plain. The former left the establishment of the
building line untouched until the lot owners should act, and then
made the street committee the mere automatic register of that
action, and gave to it the effect of law. The ordinance in the case
at bar absolutely prohibits the erection of any billboards in the
blocks designated, but permits this prohibition to be modified with
the consent of the persons who are to be most affected by such
modification. The one ordinance permits two-thirds of the lot
owners to impose restrictions upon the other property in the block,
while the other permits one-half of the lot owners to remove a
restriction from the other property owners. This is not a
delegation of legislative power, but is, as we have seen, a
familiar provision affecting the enforcement of laws and
It results that the judgment of the Supreme Court of Illinois
MR. JUSTICE McKENNA dissents.