Violation of statute or ordinance-"negligence per se". 606 259 84 435 260 Parent and CHILD-support of child-liability of father..... PRINCIPAL AND AGENT-fraudulent representations of agent-effect of provisions of contract...... Sale of principal's property by agent to himself.. PROCESS-service by telephone... ...... PROPERTY-dogs-legislative power... PUBLIC SERVICE COMPANIES-property-franchise.. 170 261 607 608 170 348 437 349 435 QUASI-CONTRACTS-plaintiff in wilful default-building contracts.... 608 691 REFORMATION OF INSTRUMENTS-mutual mistake-equitable relief.... 85 86 STATUTE OF FRAUDS-contracts not to be performed within a year— TELEGRAPHS AND TELEPHONES-death messages-mental anguish... .... 436 86 Legacies-conditions-encouragement of divorce.... ... BOOK REVIEWS Aiyar (S. Srinivasa)—The Legality of the Trial of Jesus.... 616 Beale (Joseph Henry)—Bartolus on the Conflict of Laws. 528 351 Berry (C. P.)-Restrictions on the Use of Real Property. 698 613 Borland (William Patterson)—Wills and Administration.. Cleaveland (Livingston W.)-Probate Law and Practice of 697 Corwin (Edwin S.)-The Doctrine of Judicial Review.... Gillin (John L.)-Poor Relief Legislation in Iowa.. 700 Glenn (Garrard)-Creditors' Rights and Remedies... 612 524 Hedges (Gilbert L.)-Where the People Rule...... Hemenway (Henry Bixby)—Legal Principles of Health Administra- Hodges (Henry G.)-The Doctrine of Intervention.. Merriam (Ralph)-The Law of Carriers of Goods.... ..... Nijhoff (Martinus)—War Obviated by an International Police.... Park (Orville A.)-Park's Annoted Code of Georgia... Pond (Arthur L.)-Law of Public Utilities, Operating in Cities and 698 699 526 172 700 88 Richards (John E.)—The Illegality of the Trial of Jesus.. Rogers (Edward S.)-Good Will, Trade Marks and Unfair Trading Stockton (Charles H.)-Outlines of International Law...... Swain (George Fillmore)—Conservation of Water by Storage. Thompson (Milford J.)-Sales of Stocks and Bonds.... YALE LAW JOURNAL Vol. XXIV NOVEMBER, 1914 No. 1 THE CONSTITUTIONALITY OF STATUTES FORBIDDING ADVERTISING SIGNS ON PROPERTY It has been held recently in a number of cases that laws forbidding advertising signs on property because they were unsightly or offensive to esthetic taste are unconstitutional as involving a taking of private property without compensation or depriving persons of their property without due process of law. It will not be necessary in this article to distinguish between "taking" and "depriving"; the two words will be treated as synonymous and either one used as may be convenient. I propose here to present an argument in favor of the constitutionality of such laws based on an analysis of the nature and scope of property rights. In limine, I am one of those who strongly disapprove of the present prevailing tendency to limit the power of legislatures by multiplying constitutional restrictions or extending the scope of existing restrictions. Under our form of government the legislature, representing the people, is for ordinary purposes the appointed and the best law-making organ. We can not run such a government as ours without committing large powers to the legislature and trusting it not to abuse them. As President Wilson said, in government some one must be trusted. It is not the function of the constitution to prevent the legislature from doing every sort of foolish or wicked thing. In one of the cases cited above the court said that, if such statutes were 'Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920, 34 L. R. A. (N. S.) 998; People v. Murphy, 195 N. Y. 126, 88 N. E. 17, 21 L. R. A. (N. S.) 735; Conn. v. Boston Adv. Co., 188 Mass. 348, 108 Am. St. Rep. 494, 74 N. E. 601, 69 L. R. A. 817. held valid every shopkeeper might be forbidden to put his name on the front of his store. Of course he might. So the legislature could repeal the laws for the collection of debts or the laws against theft or murder or do a thousand other foolish or wicked things. It is the business of the people to elect legislators who will not do so. The conditions of modern life require many regulations of conduct in the public interest that formerly could have been more advantageously left uninterfered with. I strongly deprecate a general attitude of distrust toward the legislature even if to some extent it deserves it-and the establishment of rules, principles and precedents for the construction of constitutional prohibitions that tie up the legislature too tight, and may return to plague us by standing in the way of necessary and salutary regulations. The decisions above mentioned stand on two propositions: (1) That forbidding such signs is in itself considered a taking of property, which can be constitutionally justified, if at all, only under what is called the police power of the state, and (2) That the laws in question are attempts to exercise the police power for purely esthetic purposes, to which that power does not extend, it being limited to guarding the public health, morals, comfort or general welfare. With the second of these propositions I have nothing to do here. My purpose is to show that the first proposition is incorrect; that such a prohibition can be justified under perfectly well established legal principles, which apply to injurious acts generally independently of the police power and impose limitations of a more general sort on the use of property. The word right has various meanings; there are several different kinds of rights, and it is necessary not to try to apply to one principles that are properly applicable only to another. Only two of those kinds of rights need here be considered, those to which I have elsewhere, for want of any generally accepted. names, ventured to give the names of "permissive" and "protected" rights. A permissive right is the legal condition of a person whom the law permits to do or abstain from an act, on whom the law lays no command as to that act. For convenience sake in the following discussion doing acts only will be mentioned. Abstaining from acts must be taken as embraced by the word "do." The act permitted may conveniently be called the content of the right. The act is not itself the right. The act is a fact, which might exist if there were no law; the right is a legal condition, the creature of the law. Such a right may or may not have a thing for its subject: i. e., the acts permitted may or may not be defined as acts affecting a thing. The rights of free speech and of religious liberty, which are among the most important of purely permissive rights, have no subjects; but rights of property, so far as they are permissive rights, are rights to do acts affecting things, and have such things for their subjects. Permissive rights of property are either (1) rights to take and hold possession of the thing (jus possidendi), or (2) rights to use or deal with it. The owner of a thing may do whatever he pleases with it; a tenant for years has a large right of use, but must not commit waste; the holder of an easement may use the thing only in certain definite ways. A permissive right can be exercised. The exercise of such a right means doing the act which forms its content. But it can not be violated. Violation of a right must be by the act of some person other than the holder of it; and ex definitione no other person's conduct is in any manner important in respect to the content of the right, only the conduct of the holder of the right himself. Where we speak of a right being violated, we mean some other kind of a right than a permissive right. It is true that the holder of a permissive right may be, even wrongfully, prevented from exercising it. But in that case the prevention, if wrongful, is affected by the violation of some other right of his. A person may be prevented from exercising his right of free speech by being bound and gagged. But then the interference with his body is a violation of his protected right of personal security. The wrong lies not in preventing him from speaking, but in the mere binding and gagging; that would equally be a wrong if he did not wish to speak at all. So if a person is ejected from his home and thus prevented from using it, the right violated is his protected right in the land or, if the ejectment is by actual violence, of his right of personal security. A protected right is the legal condition of a person for whom the law protects a certain condition of fact. That condition of fact, not any act, is the content of the right. The most important of a person's purely protected rights is that of personal security, which comprises the sub-rights of life, bodily security, liberty, reputation and some others presently to be spoken of. The content of the right of bodily security is the condition of a person's body, which can be impaired, and the |