31. churchill v rafferty full text

8/20/2019 31. Churchill v Rafferty Full Text

http://slidepdf.com/reader/full/31-churchill-v-rafferty-full-text 1/24

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

FRANCIS A. CHURCHILL and S!"AR AI, plaintiffs-appellees,vs.

#A$!S #. RAFF!R%, Co&&ec'or o( In'erna& Re)en*e, defendant-appellant.

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

R!N, J.:

The judgment appealed from in this case perpetually restrains and prohibits thedefendant and his deputies from collecting and enforcing against the plaintiffs and their

property the annual tax mentioned and described in subsection (b) of section 100 of ct!o. "##$, effective %uly 1, 1$1&, and from destroying or removing any sign, signboard,or billboard, the property of the plaintiffs, for the sole reason that such sign, signboard,or billboard is, or may be, offensive to the sight' and decrees the cancellation of thebond given by the plaintiffs to secure the issuance of the preliminary injunction grantedsoon after the commencement of this action.

This case divides itself into to parts and gives rise to to main uestions' (1) thatrelating to the poer of the court to restrain by injunction the collection of the taxcomplained of, and (") that relating to the validity of those provisions of subsection (b) of section 100 of ct !o. "##$, conferring poer upon the *ollector of +nternal evenue to

remove any sign, signboard, or billboard upon the ground that the same is offensive tothe sight or is otherise a nuisance.

The first uestion is one of the jurisdiction and is of vital importance to the overnment.The sections of ct !o. "##$, hich bear directly upon the subject, are 1#$ and 1&0.The first expressly forbids the use of an injunction to stay the collection of any internalrevenue tax' the second provides a remedy for any rong in connection ith suchtaxes, and this remedy as intended to be exclusive, thereby precluding the remedy byinjunction, hich remedy is claimed to be constitutional. The to sections, then, involvethe right of a dissatisfied taxpayers to use an exceptional remedy to test the validity of any tax or to determine any other uestion connected thereith, and the uestion

hether the remedy by injunction is exceptional.

reventive remedies of the courts are extraordinary and are not the usual remedies.The origin and history of the rit of injunction sho that it has alays been regarded asan extraordinary, preventive remedy, as distinguished from the common course of thela to redress evils after they have been consummated. !o injunction issues as of course, but is granted only upon the oath of a party and hen there is no adeuateremedy at la. The overnment does, by section 1#$ and 1&0, ta/e aay the



preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a contestith it, the same ordinary remedial actions hich prevail beteen citien and citien.The ttorney-eneral, on behalf of the defendant, contends that there is no provisionsof the paramount la hich prohibits such a course. hile, on the other hand, counselfor plaintiffs urge that the to sections are unconstitutional because (a) they attempt to

deprive aggrieved taxpayers of all substantial remedy for the protection of their property,thereby, in effect, depriving them of their property ithout due process of la, and (b)they attempt to diminish the jurisdiction of the courts, as conferred upon them by cts!os. 1#2 and 1$0, hich jurisdiction as ratified and confirmed by the ct of *ongressof %uly 1, 1$0".

+n the first place, it has been suggested that section 1#$ does not apply to the tax inuestion because the section, in spea/ing of a 3tax,3 means only legal taxes' and thatan illegal tax (the one complained of) is not a tax, and, therefore, does not fall ithin theinhibition of the section, and may be restrained by injunction. There is no force in thissuggestion. The inhibition applies to all internal revenue taxes imposes, or authoried to

be imposed, by ct !o. "##$. (4nyder vs. 5ar/s, 10$ 6.4., 17$.) nd, furthermore, themere fact that a tax is illegal, or that the la, by virtue of hich it is imposed, isunconstitutional, does not authorie a court of euity to restrain its collection byinjunction. There must be a further shoing that there are special circumstances hichbring the case under some ell recognied head of euity jurisprudence, such as thatirreparable injury, multiplicity of suits, or a cloud upon title to real estate ill result, andalso that there is, as e have indicated, no adeuate remedy at la. This is the settledla in the 6nited 4tates, even in the absence of statutory enactments such as sections1#$ and 1&0. (8annein/levs. 5ayor, etc., of eorgeton, 7" 6.4., 9&:' +ndiana 5fg.*o. vs. ;oehne, 177 6.4., 271' <hio Tax cases, "#" 6. 4., 9:2, 97:' ittsburgh *. *. =4t. >. . *o. vs. ?oard of ublic or/s, 1:" 6. 4., #"' 4helton vs. lat, 1#$ 6.4., 9$1'

4tate ailroad Tax *ases, $" 6. 4., 9:9.) Therefore, this branch of the case must becontrolled by sections 1#$ and 1&0, unless the same be held unconstitutional, andconseuently, null and void.

The right and poer of judicial tribunals to declare hether enactments of thelegislature exceed the constitutional limitations and are invalid has alays beenconsidered a grave responsibility, as ell as a solemn duty. The courts invariablygive the most careful consideration to uestions involving the interpretation andapplication of the *onstitution, and approach constitutional uestions ith greatdeliberation, exercising their poer in this respect ith the greatest possiblecaution and even reluctance' and they should never declare a statute void,unless its invalidity is, in their judgment, beyond reasonable doubt. To justify acourt in pronouncing a legislative act unconstitutional, or a provision of a stateconstitution to be in contravention of the *onstitution of the 6nited 4tates, thecase must be so clear to be free from doubt, and the conflict of the statute iththe constitution must be irreconcilable, because it is but a decent respect to theisdom, the integrity, and the patriotism of the legislative body by hich any lais passed to presume in favor of its validity until the contrary is shon beyondreasonable doubt. Therefore, in no doubtful case ill the judiciary pronounce a



legislative act to be contrary to the constitution. To doubt the constitutionality of ala is to resolve the doubt in favor of its validity. (2 uling *ase >a, secs. :1,:", and :#, and cases cited therein.)

+t is also the settled la in the 6nited 4tates that 3due process of la3 does not alays

reuire, in respect to the overnment, the same process that is reuired beteencitiens, though it generally implies and includes regular allegations, opportunity toanser, and a trial according to some ell settled course of judicial proceedings. Thecase ith hich e are dealing is in point. citien@s property, both real and personal,may be ta/en, and usually is ta/en, by the government in payment of its taxes ithoutany judicial proceedings hatever. +n this country, as ell as in the 6nited 4tates, theofficer charged ith the collection of taxes is authoried to seie and sell the property of delinuent taxpayers ithout applying to the courts for assistance, and theconstitutionality of the la authoriing this procedure never has been seriouslyuestioned. (*ity of hiladelphia vs. ABiehlC The *ollector, 9 all., :"0' !icholl vs. 6.4.,: all., 1"", and cases cited.) This must necessarily be the course, because it is upon

taxation that the overnment chiefly relies to obtain the means to carry on itsoperations, and it is of the utmost importance that the modes adopted to enforce thecollection of the taxes levied should be summary and interfered ith as little as possible.!o government could exist if every litigious man ere permitted to delay the collectionof its taxes. This principle of public policy must be constantly borne in mind indetermining cases such as the one under consideration.

ith these principles to guide us, e ill proceed to inuire hether there is any meritin the to propositions insisted upon by counsel for the plaintiffs. 4ection 9 of thehilippine ?ill providesD 3That no la shall be enacted in said +slands hich shall depriveany person of life, liberty, or property ithout due process of la, or deny to any person

therein the eual protection of the la.3

The origin and history of these provisions are ell-/non. They are found in substancein the *onstitution of the 6nited 4tates and in that of ever state in the 6nion.

4ection #""& of the evised 4tatutes of the 6nited 4tates, effective since 172:,provides thatD 3!o suit for the purpose of restraining the assessment or collection of anytax shall be maintained in any court.3

4ection 1#$, ith hich e have been dealing, readsD 3!o court shall have authority togrant an injunction to restrain the collection of any internal-revenue tax.3

comparison of these to sections sho that they are essentially the same. ?othexpressly prohibit the restraining of taxes by injunction. +f the 4upreme *ourt of the6nited 4tates has clearly and definitely held that the provisions of section #""& do notviolate the 3due process of la3 and 3eual protection of the la3 clauses in the*onstitution, e ould be going too far to hold that section 1#$ violates those sameprovisions in the hilippine ?ill. That the 4upreme *ourt of the 6nited 4tates has soheld, cannot be doubted.



+n *heatham vs. 6nited 4tates ($" 6.4., 79,7$) hich involved the validity of an incometax levied by an act of *ongress prior to the one in issue in the case of olloc/ vs. Earmers@ >oan = Trust *o. (19: 6.4., &"$) the court, through 5r. %ustice5iller, saidD 3+f there existed in the courts, state or !ational, any general poer of impeding or controlling the collection of taxes, or relieving the hardship incident to

taxation, the very existence of the government might be placed in the poer of a hostile judiciary. (Bos vs. The *ity of *hicago, 11 all., 107.) hile a free course of remonstrance and appeal is alloed ithin the departments before the money is finallyexacted, the eneral overnment has isely made the payment of the tax claimed,hether of customs or of internal revenue, a condition precedent to a resort to thecourts by the party against hom the tax is assessed. +n the internal revenue branch ithas further prescribed that no such suit shall be brought until the remedy by appeal hasbeen tried' and, if brought after this, it must be ithin six months after the decision onthe appeal. e regard this as a condition on hich alone the government consents tolitigate the lafulness of the original tax. +t is not a hard condition. Ee governmentshave conceded such a right on any condition. +f the compliance ith this condition

reuires the party aggrieved to pay the money, he must do it.3

gain, in 4tate ailroad Tax *ases ($" 6.4., 9:9, 21#), the court saidD 3That there mightbe no misunderstanding of the universality of this principle, it as expressly enacted, in172:, that 3no suit for the purpose of restraining the assessment or collection of any taxshall be maintained in any court.3 (ev, 4tat., sec. #""&.) nd though this as intendedto apply alone to taxes levied by the 6nited 4tates, it shos the sense of *ongress of the evils to be feared if courts of justice could, in any case, interfere ith the process of collecting taxes on hich the government depends for its continued existence. +t is aise policy. +t is founded in the simple philosophy derived from the experience of ages,that the payment of taxes has to be enforced by summary and stringent means against

a reluctant and often adverse sentiment' and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those hich belongto courts of justice.3

nd again, in 4nyder vs. 5ar/s (10$ 6.4., 17$), the court saidD 3The remedy of a suit torecover bac/ the tax after it is paid is provided by statute, and a suit to restrain itscollection is forbidden. The remedy so given is exclusive, and no other remedy can besubstituted for it. 4uch has been the current of decisions in the *ircuit *ourts of the6nited 4tates, and e are satisfied it is a correct vie of the la.3itc-a1f

+n the consideration of the plaintiffs@ second proposition, e ill attempt to sho (1) thatthe hilippine courts never have had, since the merican occupation, the poer torestrain by injunction the collection of any tax imposed by the +nsular overnment for itson purpose and benefit, and (") that assuming that our courts had or have suchpoer, this poer has not been diminished or curtailed by sections 1#$ and 1&0.

e ill first revie briefly the former and present systems of taxation. 6pon the merican occupation of the hilippine, there as found a fairly complete system of taxation. This system as continued in force by the military authorities, ith but fe



changes, until the *ivil overnment assumed charge of the subject. The principalsources of revenue under the 4panish regime ere derived from customs receipts, theso-called industrial taxes, the urbana taxes, the stamp tax, the personal cedula tax, andthe sale of the public domain. The industrial and urbana taxes constituted practically anincome tax of some 9 per cent on the net income of persons engaged in industrial and

commercial pursuits and on the income of oners of improved city property. The sale of stamped paper and adhesive stamp tax. The cedula tax as a graduated tax, rangingfrom nothing up to #:.90. The revenue derived from the sale of the public domain asnot considered a tax. The merican authorities at once abolished the cedula tax, butlater restored it in a modified form, charging for each cedula tenty centavos, anamount hich as supposed to be just sufficient to cover the cost of issuance. Theurbana tax as abolished by ct !o. ""#, effective 4eptember 2, 1$01.

The 35unicipal *ode3 (ct !o. 7") and the rovincial overnment ct (!o. 7#), bothenacted in 1$01, authorie municipal councils and provincial boards to impose an ad valorem tax on real estate. The 5unicipal *ode did not apply to the city of 5anila. This

city as given a special charter (ct !o. 17#), effective ugust #0, 1$01' 6nder thischarter the 5unicipal ?oard of 5anila is authoried and empoered to impose taxesupon real estate and, li/e municipal councils, to license and regulate certainoccupations. *ustoms matters ere completely reorganied by ct !o. #99, effective atthe port of 5anila on Eebruary :, 1$0", and at other ports in the hilippine +slands theday after the receipt of a certified copy of the ct. The +nternal evenue >a of 1$0&(ct !o. 117$), repealed all existing las, ordinances, etc., imposing taxes upon thepersons, objects, or occupations taxed under that act, and all industrial taxes and stamptaxes imposed under the 4panish regime ere eliminated, but the industrial tax ascontinued in force until %anuary 1, 1$09. This +nternal evenue >a did not ta/e aayfrom municipal councils, provincial boards, and the 5unicipal ?oard of the city of 5anila

the poer to impose taxes upon real estate. This ct (!o. 117$), ith its amendments,as repealed by ct !o. "##$, an act 3revising and consolidating the las relative tointernal revenue.3

4ection 7& of ct !o. 7" provides that 3!o court shall entertain any suit assailing thevalidity of a tax assessed under this act until the taxpayer shall have paid, under protest,the taxes assessed against him, . . . .3

This inhibition as inserted in section 1: of ct !o. 7# and applies to taxes imposed byprovincial boards. The inhibition as not inserted in the 5anila *harter until thepassage of ct !o. 1:$#, effective <ctober 1", 1$0:. ct !o. #99 expressly ma/es thepayment of the exactions claimed a condition precedent to a resort to the courts bydissatisfied importers. 4ection 9" of ct !o. 117$ provides 3That no courts shall haveauthority to grant an injunction restraining the collection of any taxes imposed by virtueof the provisions of this ct, but the remedy of the taxpayer ho claims that he isunjustly assessed or taxed shall be by payment under protest of the sum claimed fromhim by the *ollector of +nternal evenue and by action to recover bac/ the sum claimedto have been illegally collected.3



4ections 1#$ and 1&0 of ct !o. "##$ contain, as e have indicated, the sameprohibition and remedy. The result is that the courts have been expressly forbidden, inevery act creating or imposing taxes or imposts enacted by the legislative body of thehilippines since the merican occupation, to entertain any suit assailing the validity of any tax or impost thus imposed until the tax shall have been paid under protest. The

only taxes hich have not been brought ithin the express inhibition ere thoseincluded in that part of the old 4panish system hich completely disappeared on or before %anuary 1, 1$09, and possibly the old customs duties hich disappeared inEebruary, 1$0".

4ection 92 of the <rganic ct (!o. 1#2), effective %une 12, 1$01, provides that 3*ourtsof Eirst +nstance shall have original jurisdictionD

x x x x x x x x x

". +n all civil actions hich involve the ... legality of any tax, impost, or

assessment, . . . .

x x x x x x x x x

:. 4aid courts and their judges, or any of them, shall have poer to issue rits of injunction, mandamus,certiorari , prohibition, quo warranto, and habeas corpus intheir respective provinces and districts, in the manner provided in the *ode of *ivil rocedure.

The provisions of the *ode of *ivil rocedure (ct !o. 1$0), effective <ctober 1, 1$01,hich deals ith the subject of injunctions, are sections 12" to 1:", inclusive.

+njunctions, as here defined, are of to /inds' preliminary and final. The former may begranted at any time after the commencement of the action and before final judgment,and the latter at the termination of the trial as the relief or part of the relief prayed for (sec. 12"). ny judge of the 4upreme *ourt may grant a preliminary injunction in anyaction pending in that court or in any *ourt of Eirst +nstance. preliminary injunctionmay also be granted by a judge of the *ourt of Eirst +nstance in actions pending in hisdistrict in hich he has original jurisdiction (sec. 12#). ?ut such injunctions may begranted only hen the complaint shos facts entitling the plaintiff to the relief demanded(sec. 122), and before a final or permanent injunction can be granted, it must appear upon the trial of the action that the plaintiff is entitled to have commission or continuance of the acts complained of perpetually restrained (sec. 1:1). These

provisions authorie the institution in *ourts of Eirst +nstance of hat are /non as3injunction suits,3 the sole object of hich is to obtain the issuance of a final injunction.They also authorie the granting of injunctions as aiders in ordinary civil actions. ehave defined in Bavesa vs. rbes (1# hil. ep., ":#), an injunction to be 3 3specialremedy3 adopted in that code (ct 1$0) from merican practice, and originally borroedfrom Fnglish legal procedure, hich as there issued by the authority and under theseal of a court of euity, and limited, as in other cases here euitable relief is sought,to those cases here there is no 3plain, adeuate, and complete remedy at la,3hich



ill not be granted hile the rights beteen the parties are undetermined, except inextraordinary cases here material and irreparable injury ill be done,3hich cannot becompensated in damages . . .

?y paragraph " of section 92 of ct !o. 1#2, supra, and the provisions of the various

subseuent cts heretofore mentioned, the +nsular overnment has consented tolitigate ith aggrieved persons the validity of any original tax or impost imposed by it oncondition that this be done in ordinary civil actions after the taxes or exactions shallhave been paid. ?ut it is said that paragraph " confers original jurisdiction upon *ourtsof Eirst +nstance to hear and determine 3all civil actions3 hich involve the validity of anytax, impost or assessment, and that if the all-inclusive ords 3all3 and 3any3 be giventheir natural and unrestricted meaning, no action herein that uestion is involved canarise over hich such courts do not have jurisdiction. (?arrameda vs. 5oir, "9 hil.ep., &&.) This is true. ?ut the term 3civil actions3 had its ell defined meaning at thetime the paragraph as enacted. The same legislative body hich enacted paragraph "on %une 12, 1$01, had, just a fe months prior to that time, defined the only /ind of

action in hich the legality of any tax imposed by it might be assailed. (4ec. 7&, ct 7",enacted %anuary #1, 1$01, and sec. 1:, ct !o. 7#, enacted Eebruary 2, 1$01.) That/ind of action being payment of the tax under protest and an ordinary suit to recover and no other, there can be no doubt that *ourts of Eirst +nstance have jurisdiction over all such actions. The subseuent legislation on the same subject shos clearly that the*ommission, in enacting paragraph ", supra, did not intend to change or modify in anyay section 7& of ct !o. 7" and section 1: of ct !o. 7#, but, on the contrary, it asintended that 3civil actions,3 mentioned in said paragraph, should be understood tomean, in so far as testing the legality of taxes ere concerned, only those of the /indand character provided for in the to sections above mentioned. +t is also urged that thepoer to restrain by injunction the collection of taxes or imposts is conferred upon

*ourts of Eirst +nstance by paragraph : of section 92, supra. This paragraph doesempoer those courts to grant injunctions, both preliminary and final, in any civil actionpending in their districts, provided alays, that the complaint shos facts entitling theplaintiff to the relief demanded. +njunction suits, such as the one at bar, are 3civilactions,3 but of a special or extraordinary character. +t cannot be said that the*ommission intended to give a broader or different meaning to the ord 3action,3 usedin *hapter $ of the *ode of *ivil rocedure in connection ith injunctions, than it gaveto the same ord found in paragraph " of section 92 of the <rganic ct. The +nsular overnment, in exercising the poer conferred upon it by the *ongress of the 6nited4tates, has declared that the citiens and residents of this country shall pay certainspecified taxes and imposts. The poer to tax necessarily carries ith it the poer tocollect the taxes. This being true, the eight of authority supports the proposition thatthe overnment may fix the conditions upon hich it ill consent to litigate the validityof its original taxes. (Tennessee vs. 4need, $2 6.4., 2$.)

e must, therefore, conclude that paragraph " and : of section 92 of ct !o. 1#2,construed in the light of the prior and subseuent legislation to hich e have referred,and the legislative and judicial history of the same subject in the 6nited 4tates ith



hich the *ommission as familiar, do not empoer *ourts of firs +nstance to interfereby injunction ith the collection of the taxes in uestion in this case.1awphil.net

+f e are in error as to the scope of paragraph " and :, supra, and the *ommission didintend to confer the poer upon the courts to restrain the collection of taxes, it does not

necessarily follo that this poer or jurisdiction has been ta/en aay by section 1#$ of ct !o. "##$, for the reason that all agree that an injunction ill not issue in any case if there is an adeuate remedy at la. The very nature of the rit itself prevents itsissuance under such circumstances. >egislation forbidding the issuing of injunctions insuch cases is unnecessary. 4o the only uestion to be here determined is hether theremedy provided for in section 1&0 of ct !o. "##$ is adeuate. +f it is, the rits hichform the basis of this appeal should not have been issued. +f this is the correct vie, theauthority to issue injunctions ill not have been ta/en aay by section 1#$, butrendered inoperative only by reason of an adeuate remedy having been madeavailable.

The legislative body of the hilippine +slands has declared from the beginning (ct !o.7") that payment under protest and suit to recover is an adeuate remedy to test thelegality of any tax or impost, and that this remedy is exclusive. *an e say that theremedy is not adeuate or that it is not exclusive, or bothG The plaintiffs in the case atbar are the first, in so far as e are aare, to uestion either the adeuacy or exclusiveness of this remedy. e ill refer to a fe cases in the 6nited 4tates herestatutes similar to sections 1#$ and 1&0 have been construed and applied.

+n 5ay, 17:&, one ?loomstein presented a petition to the circuit court sitting in !ashville,Tennessee, stating that his real and personal property had been assessed for statetaxes in the year 17:" to the amount of H1#".20' that he tendered to the collector this

amount in 3funds receivable by la for such purposes'3 and that the collector refused toreceive the same. 8e prayed for an alternative rit of mandamus to compel the collector to receive the bills in payment for such taxes, or to sho cause to the contrary. To thispetition the collector, in his anser, set up the defense that the petitioner@s suit asexpressly prohibited by the ct of the eneral ssembly of the 4tate of Tennessee,passed in 17:#. The petition as dismissed and the relief prayed for refused. n appealto the supreme court of the 4tate resulted in the affirmance of the judgment of the loer court. The case as then carried to the 4upreme *ourt of the 6nited 4tates(Tennessee vs. 4need, $2 6. 4., 2$), here the judgment as again affirmed.

The to sections of the ct of A5arch "1,C 17:#, dran in uestion in that cases, readas follosD

1. That in all cases in hich an officer, charged by la ith the collection of revenue due the 4tate, shall institute any proceeding, or ta/e any steps for thecollection of the same, alleged or claimed to be due by said officer from anycitien, the party against hom the proceeding or step is ta/en shall, if heconceives the same to be unjust or illegal, or against any statute or clause of the*onstitution of the 4tate, pay the same under protest' and, upon his ma/ing said



payment, the officer or collector shall pay such revenue into the 4tate Treasury,giving notice at the time of payment to the *omptroller that the same as paidunder protest' and the party paying said revenue may, at any time ithin thirtydays after ma/ing said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof. nd the same may be tried in

any court having the jurisdiction of the amount and parties' and, if it bedetermined that the same as rongfully collected, as not being due from saidparty to the 4tate, for any reason going to the merits of the same, then the courttrying the case may certify of record that the same as rongfully paid and oughtto be refunded' and thereupon the *omptroller shall issue his arrant for thesame, hich shall be paid in preference to other claims on the Treasury.

". That there shall be no other remedy, in any case of the collection of revenue,or attempt to collect revenue illegally, or attempt to collect revenue in funds onlyreceivable by said officer under the la, the same being other or different fundsthan such as the tax payer may tender, or claim the right to pay, than that above

provided' and no rit for the prevention of the collection of any revenue claimed,or to hinder or delay the collection of the same, shall in anyise issue, either injunction, supersedeas, prohibition, or any other rit or process hatever' but inall cases in hich, for any reason, any person shall claim that the tax so collectedas rongfully or illegally collected, the remedy for said party shall be as aboveprovided, and in no other manner.3

+n discussing the adeuacy of the remedy provided by the Tennessee >egislature, asabove set forth, the 4upreme *ourt of the 6nited 4tates, in the case just cited, saidD3This remedy is simple and effective. suit at la to recover money unlafully exactedis as speedy, as easily tried, and less complicated than a proceeding by mandamus. ...

+n revenue cases, hether arising upon its (6nited 4tates) +nternal evenue >as or those providing for the collection of duties upon foreign imports, it (6nited 4tates)adopts the rule prescribed by the 4tate of Tennessee. +t reuires the contestant to paythe amount as fixed by the overnment, and gives him poer to sue the collector, andin such suit to test the legality of the tax. There is nothing illegal or even harsh in this. +tis a ise and reasonable precaution for the security of the overnment.3

Thomas *. latt commenced an action in the *ircuit *ourt of the 6nited 4tates for theFastern Bistrict of Tennessee to restrain the collection of a license tax from thecompany hich he represented. The defense as that sections 1 and " of the ct of 17:#, supra, prohibited the bringing of that suit. This case also reached the 4upreme*ourt of the 6nited 4tates. (4helton vs. latt, 1#$ 6. 9$1.) +n spea/ing of the inhibitoryprovisions of sections 1 and " of the ct of 17:#, the court saidD 3This ct has beensanctioned and applied by the *ourts of Tennessee. (!ashville vs.4mith, 72 Tenn., "1#'>ouisville = !. . *o. vs. 4tate, 7 8eis/., 22#, 70&.) +t is, as counsel observe, similar tothe ct of *ongress forbidding suit for the purpose of restraining the assessment or collection of taxes under the +nternal evenue >as, in respect to hich this court heldthat the remedy by suit to recover bac/ the tax after payment, provided for by the4tatute, as exclusive. (4nyder vs. 5ar/s, of this character has been called for by the



embarrassments resulting from the improvident employment of the rit of injunction inarresting the collection of the public revenue' and, even in its absence, the strong armof the court of chancery ought not to be interposed in that direction except here resortto that court is grounded upon the settled principles hich govern its jurisdiction.3

+n >ouisville = !.. *o. vs. 4tate (7 8eis/. A2& Tenn.C, 22#, 70&), cited by the 4upreme*ourt of the 6nited 4tates in 4helton vs. latt, supra, the court saidD 3+t as urged thatthis statute (sections 1 and " of the ct of 17:#, supra) is unconstitutional and void, as itdeprives the citien of the remedy by certiorari , guaranteed by the organic la.3

?y the 10th section of the sixth article of the *onstitution, ATennesseeC it is provided thatD3The judges or justices of inferior courts of la and euity shall have poer in all civilcases to issue rits of certiorari , to remove any cause, or the transcript of the recordthereof, from any inferior jurisdiction into such court of la, on sufficient cause,supported by oath or affirmation.3

The court held the act valid as not being in conflict ith these provisions of the 4tateconstitution.

+n Fddy vs. The Tonship of >ee (:# 5ich., 1"#), the complainants sought to enjoin thecollection of certain taxes for the year 1772. The defendants, in support of their demurrer, insisted that the remedy by injunction had been ta/en aay by section 10: of the ct of 1779, hich section reads as follosD 3!o injunction shall issue to stayproceedings for the assessment or collection of taxes under this ct.3

+t as claimed by the complainants that the above uoted provisions of the ct of 1779ere unconstitutional and void as being in conflict ith article 2, sec. 7, of the

*onstitution, hich provides thatD 3The circuit courts shall have original jurisdiction in allmatters, civil and criminal, not excepted in this *onstitution, and not prohibited by la. ...They shall also have poer to issue rits of habeas corpus, mandamus, injunction, quowarranto, certiorari , and other rits necessary to carry into effect their orders,

judgments, and decrees.3

5r. %ustice *hamplin, spea/ing for the court, saidD 3+ have no doubt that the >egislaturehas the constitutional authority, here it has provided a plain, adeuate, and completeremedy at la to recover bac/ taxes illegally assessed and collected, to ta/e aay theremedy by injunction to restrain their collection.3

4ection $ of the hilippine ?ill reads in part as follosD 3That the 4upreme *ourt and the*ourts of Eirst +nstance of the hilippine +slands shall possess and exercise jurisdictionas heretofore provided and such additional jurisdiction as shall hereafter be prescribedby the overnment of said +slands, subject to the poer of said overnment to changethe practice and method of procedure.3

+t ill be seen that this section has not ta/en aay from the hilippine overnment thepoer to change the practice and method of procedure. +f sections 1#$ and 1&0,



considered together, and this must alays be done, are nothing more than a mode of procedure, then it ould seem that the >egislature did not exceed its constitutionalauthority in enacting them. *onceding for the moment that the duly authoriedprocedure for the determination of the validity of any tax, impost, or assessment as byinjunction suits and that this method as available to aggrieved taxpayers prior to the

passage of ct !o. "##$, may the >egislature change this method of procedureG Thatthe >egislature has the poer to do this, there can be no doubt, provided some other adeuate remedy is substituted in lieu thereof. +n spea/ing of the modes of enforcingrights created by contracts, the 4upreme *ourt of the 6nited 4tates, inTennessee vs. 4need, supra, saidD 3The rule seems to be that in modes of proceedingsand of forms to enforce the contract the >egislature has the control, and may enlarge,limit or alter them, provided that it does not deny a remedy, or so embarrass it ithconditions and restrictions as seriously to impair the value of the right.3

+n that case the petitioner urged that the cts of 17:# ere las impairing the obligationof the contract contained in the charter of the ?an/ of Tennessee, hich contract as

entered into ith the 4tate in 17#7. +t as claimed that this as done by placing suchimpediments and obstructions in the ay of its enforcement, thereby so impairing theremedies as practically to render the obligation of no value. +n disposing of thiscontention, the court saidD 3+f e assume that prior to 17:# the relator had authority toprosecute his claim against the 4tate by mandamus, and that by the statutes of thatyear the further use of that form as prohibited to him, the uestion remains. hether an effectual remedy as left to him or provided for him. e thin/ the regulation of thestatute gave him an abundant means of enforcing such right as he possessed. +tprovided that he might pay his claim to the collector under protest, giving notice thereof to the *omptroller of the Treasury' that at any time ithin thirty days thereafter he mightsue the officer ma/ing the collection' that the case should be tried by any court having

jurisdiction and, if found in favor of the plaintiff on the merits, the court should certify thatthe same as rongfully paid and ought to be refunded and the *omptroller shouldthereupon issue his arrant therefor, hich should be paid in preference to other claimon the Treasury.3

?ut great stress is laid upon the fact that the plaintiffs in the case under considerationare unable to pay the taxes assessed against them and that if the la is enforced, theyill be compelled to suspend business. This point may be best ansered by uotingfrom the case of Ioungblood vs. 4exton (#" 5ich., &02), herein %udge *ooley,spea/ing for the court, saidD 3?ut if this consideration is sufficient to justify the transfer of a controversy from a court of la to a court of euity, then every controversy heremoney is demanded may be made the subject of euitable cogniance. To enforceagainst a dealer a promissory note may in some cases as effectually brea/ up hisbusiness as to collect from him a tax of eual amount. This is not hat is /non to thela as irreparable injury. The courts have never recognied the conseuences of themere enforcement of a money demand as falling ithin that category.3

*ertain specified sections of ct !o. "##$ ere amended by ct !o. "&#", enactedBecember "#, 1$1&, effective %anuary 1, 1$19, by imposing increased and additional



taxes. ct !o. "&#" as amended, ere ratified by the *ongress of the 6nited 4tateson 5arch &, 1$19. The opposition manifested against the taxes imposed by cts !os."##$ and "&#" is a matter of local history. great many business men thought thetaxes thus imposed ere too high. +f the collection of the ne taxes on signs,signboards, and billboards may be restrained, e see no ell-founded reason hy

injunctions cannot be granted restraining the collection of all or at least a number of theother increased taxes. The fact that this may be done, shos the isdom of the>egislature in denying the use of the rit of injunction to restrain the collection of any taximposed by the cts. hen this as done, an euitable remedy as made available toall dissatisfied taxpayers.

The uestion no arises hether, the case being one of hich the court belo had no jurisdiction, this court, on appeal, shall proceed to express an opinion upon the validityof provisions of subsection (b) of section 100 of ct !o. "##$, imposing the taxescomplained of. s a general rule, an opinion on the merits of a controversy ought to bedeclined hen the court is poerless to give the relief demanded. ?ut it is claimed that

this case is, in many particulars, exceptional. +t is true that it has been argued on themerits, and there is no reason for any suggestion or suspicion that it is not a bona fidecontroversy. The legal points involved in the merits have been presented ith force,clearness, and great ability by the learned counsel of both sides. +f the la assailedere still in force, e ould feel that an opinion on its validity ould be justifiable, but,as the amendment became effective on %anuary 1, 1$19, e thin/ it advisable toproceed no further ith this branch of the case.

The next uestion arises in connection ith the supplementary complaint, the object of hich is to enjoin the *ollector of +nternal evenue from removing certain billboards, theproperty of the plaintiffs located upon private lands in the rovince of ial. The

plaintiffs allege that the billboards here in uestion 3in no sense constitute a nuisanceand are not deleterious to the health, morals, or general elfare of the community, or of any persons.3 The defendant denies these allegations in his anser and claims thatafter due investigation made upon the complaints of the ?ritish and erman *onsuls,he 3decided that the billboard complained of as and still is offensive to the sight, and isotherise a nuisance.3 The plaintiffs proved by 5r. *hurchill that the 3billboards ereuite a distance from the road and that they ere strongly built, not dangerous to thesafety of the people, and contained no advertising matter hich is filthy, indecent, or deleterious to the morals of the community.3 The defendant presented no testimonyupon this point. +n the agreed statement of facts submitted by the parties, the plaintiffs3admit that the billboards mentioned ere and still are offensive to the sight.3

The pertinent provisions of subsection (b) of section 100 of ct !o. "##$ readD 3+f after due investigation the *ollector of +nternal evenue shall decide that any sign,signboard, or billboard displayed or exposed to public vie is offensive to the sight or isotherise a nuisance, he may by summary order direct the removal of such sign,signboard, or billboard, and if same is not removed ithin ten days after he has issuedsuch order he my himself cause its removal, and the sign, signboard, or billboard shallthereupon be forfeited to the overnment, and the oner thereof charged ith the



expenses of the removal so effected. hen the sign, signboard, or billboard ordered tobe removed as herein provided shall not comply ith the provisions of the generalregulations of the *ollector of +nternal evenue, no rebate or refund shall be alloed for any portion of a year for hich the tax may have been paid. <therise, the *ollector of +nternal evenue may in his discretion ma/e a proportionate refund of the tax for the

portion of the year remaining for hich the taxes ere paid. n appeal may be had fromthe order of the *ollector of +nternal evenue to the 4ecretary of Einance and %usticehose decision thereon shall be final.3

The ttorney-eneral, on behalf of the defendant, saysD 3The uestion hich the casepresents under this head for determination, resolves itself into this inuiryD +s thesuppression of advertising signs displayed or exposed to public vie, hich areadmittedly offensive to the sight, conducive to the public interestG3

nd cunsel for the plaintiffs states the uestion thusD 3e contend that that portion of section 100 of ct !o. "##$, empoering the *ollector of +nternal evenue to remove

billboards as nuisances, if objectionable to the sight, is unconstitutional, as constitutinga deprivation of property without due process of law .3

Erom the position ta/en by counsel for both sides, it is clear that our inuiry is limited tothe uestion hether the enactment assailed by the plaintiffs as a legitimate exerciseof the police poer of the overnment' for all property is held subject to that poer.

s a conseuence of the foregoing, all discussion and authorities cited, hich go to thepoer of the state to authorie administrative officers to find, as a fact, that legitimatetrades, callings, and businesses are, under certain circumstances, statutory nuisances,and hether the procedure prescribed for this purpose is due process of la, are foreign

to the issue here presented.

There can be no doubt that the exercise of the police poer of the hilippineovernment belongs to the >egislature and that this poer is limited only by the cts of *ongress and those fundamentals principles hich lie at the foundation of all republicanforms of government. n ct of the >egislature hich is obviously and undoubtedlyforeign to any of the purposes of the police poer and interferes ith the ordinaryenjoyment of property ould, ithout doubt, be held to be invalid. ?ut here the ct isreasonably ithin a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. The courts cannot substitute their onvies for hat is proper in the premises for those of the >egislature. +n 5unn vs. +llinois($& 6.4., 11#), the 6nited 4tates 4upreme *ourt states the rule thusD 3+f no state of circumstances could exist to justify such statute, then e may declare this one voidbecause in excess of the legislative poer of this state' but if it could, e must presumeit did. <f the propriety of legislative interference, ithin the scope of the legislativepoer, a legislature is the exclusive judge.3

This rule very fully discussed and declared in oell vs. ennsylvania (1": 6.4., 2:7)J 3oleo-margarine3 case. (4ee also *roley vs. *hristensen, 1#: 6.4., 72, 7:'



*amfield vs. 6.4., 12: 6.4., 917.) hile the state may interfere herever the publicinterests demand it, and in this particular a large discretion is necessarily vested in thelegislature to determine, not only hat the interest of the public reuire, but hatmeasures are necessary for the protection of such interests' yet, its determination inthese matters is not final or conclusive, but is subject to the supervision of the courts.

(>aton vs. 4teele, 19" 6.4., 1##.) *an it be said judicially that signs, signboards, andbillboards, hich are admittedly offensive to the sight, are not ith the category of thingshich interfere ith the public safety, elfare, and comfort, and therefore beyond thereach of the police poer of the hilippine overnmentG

The numerous attempts hich have been made to limit by definition the scope of thepolice poer are only interesting as illustrating its rapid extension ithin comparativelyrecent years to points heretofore deemed entirely ithin the field of private liberty andproperty rights. ?lac/stone@s definition of the police poer as as follosD 3The dueregulation and domestic order of the /ingdom, hereby the individuals of the state, li/emembers of a ell governed family, are bound to conform their general behavior to the

rules of propriety, good neigborhood, and good manners, to be decent, industrious, andinoffensive in their respective stations.3 (*ommentaries, vol. &, p. 12".)

*hanceller ;ent considered the police poer the authority of the state 3to regulateunholesome trades, slaughter houses, operations offensive to the senses.3 *hief %ustice 4ha of 5assachusetts defined it as follosD 3The poer vested in thelegislature by the constitution to ma/e, ordain, and establish all manner of holesomeand reasonable las, statutes, and ordinances, either ith penalties or ithout, notrepugnant to the constitution, as they shall judge to be for the good and elfare of thecommonealth, and of the subjects of the same.3 (*om. vs. lger, : *ush., 9#.)

+n the case of ?utchers@ 6nion 4laughter-house, etc. *o. vs. *rescent *ity >ive 4toc/>anding, etc. *o. (111 6.4., :&2), it as suggested that the public health and publicmorals are matters of legislative concern of hich the legislature cannot divest itself.(4ee 4tate vs. 5ountain Timber *o. A1$1#C, :9 ash., 971, here these definitions arecollated.)

+n *hamper vs. reencastle (1#7 +nd., ##$), it as saidD 3The police poer of the 4tate,so far, has not received a full and complete definition. +t may be said, hoever, to be theright of the 4tate, or state functionary, to prescribe regulations for the good order,peace, health, protection, comfort, convenience and morals of the community, hich donot ... violate any of the provisions of the organic la.3 (Kuoted ith approval in8op/ins vs. ichmond ALa., 1$19C, 72 4.F., 1#$.)

+n *om. vs. lymouth *oal *o. (A1$11C "#" a., 1&1), it as saidD 3The police poer of the state is difficult of definition, but it has been held by the courts to be the right toprescribe regulations for the good order, peace, health, protection, comfort,convenience and morals of the community, hich does not encroach on a li/e poer vested in congress or state legislatures by the federal constitution, or does not violatethe provisions of the organic la' and it has been expressly held that the fourteenth



amendment to the federal constitution as not designed to interfere ith the exercise of that poer by the state.3

+n eople vs. ?raee (A5ich., 1$1&C, 1&$ !.., 109#), it as saidD 3+t Athe police poerChas for its object the improvement of social and economic conditioned affecting the

community at large and collectively ith a vie to bring about 3he greatest good of thegreatest number.3*ourts have consistently and isely declined to set any fixedlimitations upon subjects calling for the exercise of this poer. +t is elastic and isexercised from time to time as varying social conditions demand correction.3

+n 7 *yc., 72#, it is saidD 3olice poer is the name given to that inherent sovereigntyhich it is the right and duty of the government or its agents to exercise henever public policy, in a broad sense, demands, for the benefit of society at large, regulationsto guard its morals, safety, health, order or to insure in any respect such economicconditions as an advancing civiliation of a high complex character reuires.3 (suoted ith approval in 4tettler vs.<@8ara A1$1&C, 2$ <re, 91$.)

Einally, the 4upreme *ourt of the 6nited 4tates has said in !oble 4tate?an/ vs. 8as/ell ("1$ 6.4. A1$11C, 9:9D 3+t may be said in a general ay that the policepoer extends to all the great public needs. +t may be put forth in aid of hat issanctioned by usage, or held by the prevailing morality or strong and preponderantopinion to be greatly and immediately necessary to the public elfare.3

This statement, recent as it is, has been uoted ith approval by several courts.(*unningham vs. !orthestern +mp. *o. A1$11C, && 5ont., 170' 4tate vs. 5ountainTimber *o. A1$1#C, :9 ash., 971' 5cBavid vs. ?an/ of ?ay 5inette Ala., 1$19C, 2$4ou., &9"' 8op/ins vs. *ity of ichmond ALa., 1$19C, 72 4.F., 1#$' 4tate vs. hilipps

A5iss. 1$19C, 2: 4ou., 291.)

+t as said in *om. vs. lger (: *ush., 9#, 79), per 4ha, *.%., thatD 3+t is much easier toperceive and realie the existence and sources of this police poer than to mar/ itsboundaries, or to prescribe limits to its exercise.3 +n 4tone vs. 5ississippi (101 6.4.,71&), it as saidD 35any attempts have been made in this court and elsehere to definethe police poer, but never ith entire success. +t is alays easier to determine hether a particular case comes ithin the general scope of the poer, than to give an abstractdefinition of the poer itself, hich ill be in all respects accurate.3

<ther courts have held the same vo of efforts to evolve a satisfactory definition of the

police poer. 5anifestly, definitions hich fail to anticipate cases properly ithin thescope of the police poer are deficient. +t is necessary, therefore, to confine our discussion to the principle involved and determine hether the cases as they come upare ithin that principle. The basic idea of civil polity in the 6nited 4tates is thatgovernment should interfere ith individual effort only to the extent necessary topreserve a healthy social and economic condition of the country. 4tate interference iththe use of private property may be exercised in three ays. Eirst, through the poer of taxation, second, through the poer of eminent domain, and third, through the police



poer. ?uy the first method it is assumed that the individual receives the euivalent of the tax in the form of protection and benefit he receives from the government as such.?y the second method he receives the mar/et value of the property ta/en from him. ?utunder the third method the benefits he derived are only such as may arise from themaintenance of a healthy economic standard of society and is often referred to

as damnum absque inuria. (*om. vs. lymouth *oal *o. "#" a., 1&1' ?emis vs. uirlBrainage *o., 17" +nd., #2.) There as a time hen state interference ith the use of private property under the guise of the police poer as practically confined to thesuppression of common nuisances. t the present day, hoever, industry is organiedalong lines hich ma/e it possible for large combinations of capital to profit at theexpense of the socio-economic progress of the nation by controlling prices and dictatingto industrial or/ers ages and conditions of labor. !ot only this but the universal useof mechanical contrivances by producers and common carriers has enormouslyincreased the toll of human life and limb in the production and distribution of consumption goods. To the extent that these businesses affect not only the publichealth, safety, and morals, but also the general social and economic life of the nation, it

has been and ill continue to be necessary for the state to interfere by regulation. ?y sodoing, it is true that the enjoyment of private property is interfered ith in no smalldegree and in ays that ould have been considered entirely unnecessary in yearsgone by. The regulation of rates charged by common carriers, for instance, or thelimitation of hours of or/ in industrial establishments have only a very indirect bearingupon the public health, safety, and morals, but do bear directly upon social andeconomic conditions. To permit each individual unit of society to feel that his industry illbring a fair return' to see that his or/ shall be done under conditions that ill not either immediately or eventually ruin his health' to prevent the artificial inflation of prices of thethings hich are necessary for his physical ell being are matters hich the individual isno longer capable of attending to himself. +t is ithin the province of the police poer torender assistance to the people to the extent that may be necessary to safeguard theserights. 8ence, las providing for the regulation of ages and hours of labor of coalminers (ail = iver *oal *o. vs. Taylor, "#& 6.4., ""&)' reuiring payment of employees of railroads and other industrial concerns in legal tender and reuiringsalaries to be paid semimonthly (Frie .. *o. vs. illiams, "## 6.4., 279)' providing amaximum number of hours of labor for omen (5iller vs. ilson, 6.4. 4up. *t. AEeb. "#,1$19C, dv. <pns., p. #&")' prohibiting child labor (4turges = ?urn vs. ?eauchamp, "#16.4., #"0)' restricting the hours of labor in public laundries (+n re ong ing, 12: *al.,10$)' limiting hours of labor in industrial establishment generally (4tate vs. ?unting, :1<re., "9$)' 4unday *losing >as (4tate vs. !icholls A<re., 1$19C, 191 ac., &:#'eople vs. *. ;linc/ ac/ing *o. A!.I., 1$19C, 107 !. F., ":7' 8iller vs. 4tate A5d.,1$1&C, $" tl., 7&"' 4tate vs. enny, &" 5ont., 117' *ity of 4pringfield vs. ichter, "9:+ll., 9:7, 970' 4tate vs. 8ondros A4.*., 1$19C, 7& 4.F., :71)' have all been upheld as avalid exercise of the police poer. gain, or/men@s compensation las have beenuite generally upheld. These statutes discard the common la theory that employersare not liable for industrial accidents and ma/e them responsible for all accidentsresulting from trade ris/s, it being considered that such accidents are a legitimatecharge against production and that the employer by controlling the prices of his productmay shift the burden to the community. >as reuiring state ban/s to join in establishing



a depositors@ guarantee fund have also been upheld by the Eederal 4upreme *ourt in!oble 4tate ?an/ vs. 8as/ell ("1$ 6. 4., 10&), and ssaria 4tate ?an/ vs. Bolley ("1$6.4., 1"1).

<ffensive noises and smells have been for a long time considered susceptible of

suppression in thic/ly populated districts. ?arring livery stables from such locations asapproved of in einman vs. >ittle oc/ (6.4. 4up. *t. Apr. 9, 1$19C, 6.4. dv. <pns., p.911). nd a municipal ordinance as recently upheld (eople vs. Fricsson, "2# +ll.,#27), hich prohibited the location of garages ithin to hundred feet of any hospital,church, or school, or in any bloc/ used exclusively for residential purposes, unless theconsent of the majority of the property oners be obtained. 4uch statutes as these areusually upheld on the theory of safeguarding the public health. ?ut e apprehend that inpoint of fact they have little bearing upon the health of the normal person, but a greatdeal to do ith his physical comfort and convenience and not a little to do ith his peaceof mind. ithout entering into the realm of psychology, e thin/ it uite demonstrablethat sight is as valuable to a human being as any of his other senses, and that the

proper ministration to this sense conduces as much to his contentment as the carebestoed upon the senses of hearing or smell, and probably as much as both together.<bjects may be offensive to the eye as ell as to the nose or ear. 5an@s estheticfeelings are constantly being appealed to through his sense of sight. >arge investmentshave been made in theaters and other forms of amusement, in paintings andspectacular displays, the success of hich depends in great part upon the appeal madethrough the sense of sight. 5oving picture shos could not possible ithout the senseof sight. overnments have spent millions on par/s and boulevards and other forms of civic beauty, the first aim of hich is to appeal to the sense of sight. hy, then, shouldthe overnment not interpose to protect from annoyance this most valuable of man@ssenses as readily as to protect him from offensive noises and smellsG

The advertising industry is a legitimate one. +t is at the same time a cause and an effectof the great industrial age through hich the orld is no passing. 5illions are spenteach year in this manner to guide the consumer to the articles hich he needs. Thesense of sight is the primary essential to advertising success. ?illboard advertising, as itis no conducted, is a comparatively recent form of advertising. +t is conducted out of doors and along the arteries of travel, and compels attention by the strategic locationsof the boards, hich obstruct the range of vision at points here travelers are mostli/ely to direct their eyes. ?eautiful landscapes are marred or may not be seen at all bythe traveler because of the gaudy array of posters announcing a particular /ind of brea/fast food, or underear, the coming of a circus, an incomparable soap, nostrumsor medicines for the curing of all the ills to hich the flesh is heir, etc. +t is uite naturalfor people to protest against this indiscriminate and holesale use of the landscape byadvertisers and the intrusion of tradesmen upon their hours of leisure and relaxationfrom or/. <utdoor life must lose much of its charm and pleasure if this form of advertising is permitted to continue unhampered until it converts the streets andhighays into veritable canyons through hich the orld must travel in going to or/ or in search of outdoor pleasure.



The success of billboard advertising depends not so much upon the use of privateproperty as it does upon the use of the channels of travel used by the general public.4uppose that the oner of private property, ho so vigorously objects to the restrictionof this form of advertising, should reuire the advertiser to paste his posters upon thebillboards so that they ould face the interior of the property instead of the exterior.

?illboard advertising ould die a natural death if this ere done, and its realdependency not upon the unrestricted use of private property but upon the unrestricteduse of the public highays is at once apparent. <stensibly located on private property,the real and sole value of the billboard is its proximity to the public thoroughfares.8ence, e conceive that the regulation of billboards and their restriction is not so mucha regulation of private property as it is a regulation of the use of the streets and other public thoroughfares.

e ould not be understood as saying that billboard advertising is not a legitimatebusiness any more than e ould say that a livery stable or an automobile garage isnot. Fven a billboard is more sightly than piles of rubbish or an open seer. ?ut all

these businesses are offensive to the senses under certain conditions.

+t has been urged against ministering to the sense of sight that tastes are so diversifiedthat there is no safe standard of legislation in this direction. e anser in the languageof the 4upreme *ourt in !oble 4tate ?an/ vs.8as/ell ("1$ 6.4., 10&), and hich hasalready been adopted by several state courts (see supra), that 3the prevailing moralityor strong and preponderating opinion3 demands such legislation. The agitation againstthe unrestrained development of the billboard business has produced results in nearlyall the countries of Furope. (Fncy. ?ritannica, vol. 1, pp. "#:-"&0.) 5any drasticordinances and state las have been passed in the 6nited 4tates see/ing to ma/e thebusiness amenable to regulation. ?ut their regulation in the 6nited states is hampered

by hat e conceive an unarranted restriction upon the scope of the police poer bythe courts. +f the police poer may be exercised to encourage a healthy social andeconomic condition in the country, and if the comfort and convenience of the people areincluded ithin those subjects, everything hich encroaches upon such territory isamenable to the police poer. source of annoyance and irritation to the public doesnot minister to the comfort and convenience of the public. nd e are of the opinion thatthe prevailing sentiment is manifestly against the erection of billboards hich areoffensive to the sight.

e do not consider that e are in conflict ith the decision in Fuban/ vs. ichmond(""2 6.4., 1#:), here a municipal ordinance establishing a building line to hichproperty oners must conform as held unconstitutional. s e have pointed out,billboard advertising is not so much a use of private property as it is a use of the publicthoroughfares. +t derives its value to the poer solely because the posters are exposedto the public gae. +t may ell be that the state may not reuire private property onersto conform to a building line, but may prescribe the conditions under hich they shallma/e use of the adjoining streets and highays. !or is the la in uestion to be heldinvalid as denying eual protection of the las. +n ;eo/ee *o/e *o. vs. Taylor ("#&6.4., ""&), it as saidD 3+t is more pressed that the act discriminates unconstitutionally



against certain classes. ?ut hile there are differences of opinion as to the degree and/ind of discrimination permitted by the Eourteenth mendment, it is established byrepeated decisions that a statute aimed at hat is deemed an evil, and hitting itpresumably here experience shos it to be most felt, is not to be upset by thin/ing upand enumerating other instances to hich it might have been applied eually ell, so far

as the court can see. That is for the legislature to judge unless the case is very clear.3

?ut e have not overloo/ed the fact that e are not in harmony ith the highest courtsof a number of the states in the merican 6nion upon this point. Those courts being of the opinion that statutes hich are prompted and inspired by esthetic considerationsmerely, having for their sole purpose the promotion and gratification of the estheticsense, and not the promotion or protection of the public safety, the public peace andgood order of society, must be held invalid and contrary to constitutional provisionsholding inviolate the rights of private property. <r, in other ords, the police poer cannot interfere ith private property rights for purely esthetic purposes. The courts,ta/ing this vie, rest their decisions upon the proposition that the esthetic sense is

disassociated entirely from any relation to the public health, morals, comfort, or generalelfare and is, therefore, beyond the police poer of the state. ?ut e are of theopinion, as above indicated, that unsightly advertisements or signs, signboards, or billboards hich are offensive to the sight, are not disassociated from the generalelfare of the public. This is not establishing a ne principle, but carrying a ellrecognied principle to further application. (Eruend on olice oer, p. 122.)

Eor the foregoing reasons the judgment appealed from is hereby reversed and theaction dismissed upon the merits, ith costs. 4o ordered.

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

BF*+4+<! <! T8F 5<T+<! E< F8F+!, %!6I "&, 1$12.

R!N, J.:

*ounsel for the plaintiffs call our attention to the case of %& parte Ioung ("0$ 6.4.,1"#)' and say that they are of the opinion that this case 3is the absolutely determinativeof the uestion of jurisdiction in injunctions of this /ind.3 e did not refer to this case inour former opinion because e ere satisfied that the reasoning of the case is notapplicable to section 100 (b), 1#$ and 1&0 of ct !o. "##$. The principles announced inthe Ioung case are stated as follosD 3+t may therefore be said that hen the penalties

for disobedience are by fines so enormous and imprisonment so severe as to intimidatethe company and its officers from resorting to the courts to test the validity of thelegislation, the result is the same as if the la in terms prohibited the company fromsee/ing judicial construction of las hich deeply affect its rights.

+t is urged that there is no principle upon hich to base the claim that a person isentitled to disobey a statute at least once, for the purpose of testing its validityithout subjecting himself to the penalties for disobedience provided by the



statute in case it is valid. This is not an accurate statement of the case. <rdinarilya la creating offenses in the nature of misdemeanors or felonies relates to asubject over hich the jurisdiction of the legislature is complete in any event. +nthese case, hoever, of the establishment of certain rates ithout any hearing,the validity of such rates necessarily depends upon hether they are high

enough to permit at least some return upon the investment (ho much it is notno necessary to state), and an inuiry as to that fact is a proper subject of judicial investigation. +f it turns out that the rates are too lo for that purpose,then they are illegal. !o, to impose upon a party interested the burden of obtaining a judicial decision of such a uestion (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up allapproaches to the courts, and thus prevent any hearing upon the uestionhether the rates as provided by the acts are not too lo, and therefore invalid.The distinction is obvious beteen a case here the validity of the acts dependsupon the existence of a fact hich can be determined only after investigation of a

very complicated and technical character, and the ordinary case of a statute upona subject reuiring no such investigation and over hich the jurisdiction of thelegislature is complete in any event.

n examination of the sections of our +nternal evenue >a and of the circumstancesunder hich and the purposes for hich they ere enacted, ill sho that, unli/e thestatutes under consideration in the above cited case, their enactment involved noattempt on the part of the >egislature to prevent dissatisfied taxpayers 3from resorting tothe courts to test the validity of the legislation'3 no effort to prevent any inuiry as to their validity. hile section 1#$ does prevent the testing of the validity of subsection (b) of section 100 in injunction suits instituted for the purpose of restraining the collection of

internal revenue taxes, section 1&0 provides a complete remedy for that purpose. ndfurthermore, the validity of subsection (b) does not depend upon 3the existence of a facthich can be determined only after investigation of a very complicated and technicalcharacter,3 but the jurisdiction of the >egislature over the subject ith hich thesubsection deals 3is complete in any event.3 The judgment of the court in the Ioungcase rests upon the proposition that the aggrieved parties had no adeuate remedy atla.

!either did e overloo/ the case of eneral <il *o. vs. *rain ("0$ 6.4., "11),decided the same day and citing %& parte Ioung, supra. +n that case the plaintiff as a Tennessee corporation, ith its principal place of business in 5emphis,Tennessee. +t as engaged in the manufacture and sale of coal oil, etc. +ts ellsand plant ere located in ennsylvania and <hio. 5emphis as not only itsplace of business, at hich place it sold oil to the residents of Tennessee, butalso a distributing point to hich oils ere shipped from ennsylvania and <hioand unloaded into various tan/s for the purpose of being forarded to the

r/ansas, >ouisiana, and 5ississippi customers. !otithstanding the fact thatthe company separated its oils, hich ere designated to meet the reuirementsof the orders from those 4tates, from the oils for sale in Tennessee, the



defendant insisted that he had a right, under the ct of the Tennessee>egislature, approved pril "1, 17$$, to inspect all the oils unlocated in 5emphis,hether for sale in that 4tate or not, and charge and collect for such inspection aregular fee of tenty-five cents per barrel. The company, being advised that thedefendant had no such right, instituted this action in the inferior 4tates court for

the purpose of enjoining the defendant, upon the grounds stated in the bill, frominspecting or attempting to inspect its oils. 6pon trial, the preliminary injunctionhich had been granted at the commencement of the action, as continued inforce. 6pon appeal, the supreme court of the 4tate of Tennessee decided thatthe suit as one against the 4tate and reversed the judgment of the *hancellor.+n the 4upreme *ourt of the 6nited 4tates, here the case as revieed upon arit of error, the contentions of the parties ere stated by the court as follosD 3+tis contended by defendant in error that this court is ithout jurisdiction becauseno matter sought to be litigated by plaintiff in error as determined by the4upreme *ourt of Tennessee. The court simply held, it is paid, that, under thelas of the 4tate, it had no jurisdiction to entertain the suit for any purpose. nd it

is insisted 3hat this holding involved no Eederal uestion, but only the poers and jurisdiction of the courts of the 4tate of Tennessee, in respect to hich the4upreme *ourt of Tennessee is the final arbiter.3

<pposing these contentions, plaintiff in error urges that hether a suit is oneagainst a 4tate cannot depend upon the declaration of a statute, but dependsupon the essential nature ofthe suit, and that the 4upreme *ourt recognied thatthe statute 3aded nothing to the axiomatic principle that the 4tate, as a sovereign,is not subject to suit save by its on consent.3nd it is hence insisted that thecourt by dismissing the bill gave effect to the la hich as attac/ed. +t is further insisted that the bill undoubtedly present rights under the *onstitution of the

6nited 4tates and conditions hich entitle plaintiff in error to an injunction for theprotection of such rights, and that a statute of the 4tate hich operates to denysuch rights, or such relief, Mis itself in conflict ith the *onstitution of the 6nited4tates.3

That statute of Tennessee, hich the supreme court of that 4tate construed and held tobe prohibitory of the suit, as an act passed Eebruary "7, 17:#, hich providesD 3Thatno court in the 4tate of Tennessee has, nor shall hereafter have, any poer, jurisdiction,or authority to entertain any suit against the 4tate, or any officer acting by the authorityof the 4tate, ith a vie to reach the 4tate, its treasury, funds or property' and all suchsuits no pending, or hereafter brought, shall be dismissed as to the 4tate, or suchofficer, on motion, plea or demurrer of the la officer of the 4tate, or counsel employedby the 4tate.3

The 4upreme *ourt of the 6nited 4tates, after revieing many cases, saidD3!ecessarily, to give adeuate protection to constitutional rights a distinction must bemade beteen valid and invalid state las, as determining the character of the suitagainst state officers. nd the suit at bar illustrates the necessity. +f a suit against stateofficer is precluded in the national courts by the Fleventh mendment to the



*onstitution, and may be forbidden by a 4tate to its courts, as it is contended in thecase at bar that it may be, ithout poer of revie by this court, it must be evident thatan easy ay is open to prevent the enforcement of many provisions of the *onstitution'and the Eourteenth mendment, hich is directed at state action, could be nullified as tomuch of its operation. ... +t being then the right of a party to be protected against a la

hich violates a constitutional right, hether by its terms or the manner of itsenforcement, it is manifest that a decision hich denies such protection gives effect tothe la, and the decision is revieable by this court.3

The court then proceeded to consider hether the la of 17$$ ould, if administeredagainst the oils in uestion, violate any constitutional right of the plaintiff and after finding and adjudging that the oils ere not in movement through the 4tates, that theyhad reached the destination of their first shipment, and ere held there, not innecessary delay at means of transportation but for the business purposes and profit of the company, and resting its judgment upon the taxing poer of the 4tate, affirmed thedecree of the supreme court of the 4tate of Tennessee.

Erom the foregoing it ill be seen that the 4upreme *ourt of Tennessee dismissed thecase for ant of jurisdiction because the suit as one against the 4tate, hich asprohibited by the Tennessee >egislature. The 4upreme *ourt of the 6nited 4tates too/

jurisdiction of the controversy for the reasons above uoted and sustained the ct of 17$$ as a revenue la.

The case of Tennessee vs. 4need ($2 6.4., 2$), and 4helton vs. latt (1#$ 6.4., 9$1),relied upon in our former opinion, ere not cited in eneral <il *o. vs. *rain, supra,because the uestions presented and the statutes under consideration ere entirelydifferent. The ct approved 5arch #1, 17:#, expressly prohibits the courts from

restraining the collection of any tax, leaving the dissatisfied taxpayer to his exclusiveremedy J payment under protest and suit to recover J hile the ct approvedEebruary "7, 17:#, prohibits suits against the 4tate.

+n upholding the statute hich authories the removal of signboards or billboards uponthe sole ground that they are offensive to the sight, e recognied the fact that e arenot in harmony ith various state courts in the merican 6nion. e have just examinedthe decision of the 4upreme *ourt of the 4tate of +llinois in the recent case (<ctober ABecemberC, 1$1&) of Thomas *usac/ *o. vs. *ity of *hicago ("2: +ll., #&&), hereinthe court upheld the validity of a municipal ordinances, hich reads as follosD3:0:. 'ronta(e consents required. +t shall be unlaful for any person, firm or corporationto erect or construct any bill-board or sign-board in any bloc/ on any public street inhich one-half of the buildings on both sides of the street are used exclusively for residence purposes, ithout first obtaining the consent, in riting, of the oners or dulyauthoried agents of said oners oning a majority of the frontage of the property, onboth sides of the street, in the bloc/ in hich such bill-board or sign-board is to beerected, constructed or located. 4uch ritten consent shall be filed ith thecommissioner of buildings before a permit shall be issued for the erection, constructionor location of such bill-board or sign-board.3



The evidence hich the +llinois court relied upon as the danger of fires, the fact thatbillboards promote the commission of various immoral and filthy acts by disorderlypersons, and the inadeuate police protection furnished to residential districts. The lastobjection has no virtue unless one or the other of the other objections are valid. +f thebillboard industry does, in fact, promote such municipal evils to noticeable extent, it

seems a curious inconsistency that a majority of the property oners on a given bloc/may legalie the business. 8oever, the decision is undoubtedly a considerableadvance over the vies ta/en by other high courts in the 6nited 4tates anddistinguishes several +llinois decisions. +t is an advance because it permits thesuppression of billboards here they are undesirable. The ordinance hich the courtapproved ill no doubt cause the virtual suppression of the business in the residentialdistricts. 8ence, it is recognied that under certain circumstances billboards may besuppressed as an unlaful use of private property. >ogically, it ould seem that thepremise of fact relied upon is not very solid. <bjections to the billboard upon police,sanitary, and moral grounds have been, as pointed out by counsel for *hurchill and Tait,duly considered by numerous high courts in the 6nited 4tates, and, ith one exception,

have been rejected as ithout foundation. The exception is the 4upreme *ourt of 5issouri, hich advances practically the same line of reasoning as has the +llinois courtin this recent case. (4t. >ouis unning dvt. *o. vs. *ity of 4t. >ouis, 1#: 4. ., $"$.) +nfact, the +llinois court, in 8aller 4ign or/s vs. hysical *ulture Training 4chool ("&$ +ll.,&#2), 3distinguished3 in the recent case, saidD 3There is nothing inherently dangerous tothe health or safety of the public in structures that are properly erected for advertisingpurposes.3

+f a billboard is so constructed as to offer no room for objections on sanitary or moralgrounds, it ould seem that the ordinance above uoted ould have to be sustainedupon the very grounds hich e have advanced in sustaining our on statute.

+t might be ell to note that billboard legislation in the 6nited 4tates is attempting toeradicate a business hich has already been firmly established. This business asalloed to expand unchec/ed until its very extent called attention to its objectionablefeatures. +n the hilippine +slands such legislation has almost anticipated the business,hich is not yet of such proportions that it can be said to be fairly established. +t may bethat the courts in the 6nited 4tates have committed themselves to a course of decisionsith respect to billboard advertising, the full conseuences of hich ere not perceivedfor the reason that the development of the business has been so recent that theobjectionable features of it did not present themselves clearly to the courts nor to thepeople. e, in this country, have the benefit of the experience of the people of the6nited 4tates and may ma/e our legislation preventive rather than corrective. There arein this country, moreover, on every hand in those districts here 4panish civiliation hasheld say for so many centuries, examples of architecture no belonging to a past age,and hich are attractive not only to the residents of the country but to visitors. +f thebillboard industry is permitted ithout constraint or control to hide these historic sitesfrom the passerby, the country ill be less attractive to the tourist and the people illsuffer a district economic loss.



The motion for a rehearing is therefore denied.

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

31. churchill v rafferty full text

Documents