Argument for Plaintiff in Error. 221 U.S. The doctrine of ultra vires has no application. Railroad Co. v. Ellerman, 105 U. S. 166, 173. Defendant in error has no right to raise the question. The ordinance as construed by the Court of Appeals is an unlawful exercise of an assumed police power and operates to deprive the plaintiff in error of its property without due process of law in contravention of the Fourteenth Amendment. A common carrier of passengers cannot be lawfully deprived of the incidental right to increase its income by leasing space on the exterior of screens, forming a necessary structural part of its stages, for the exhibition of advertisements which in no way affect the welfare, comfort, safety, health, convenience or morals of passengers or of the public. The reasonableness of the ordinance is to be determined from the evidence contained in the record and from the findings based thereon which sustain unqualifiedly the contention of the plaintiff in error. Egan v. Hart, 165 U. S. 188, 189; Stanley v. Schwalby, 162 U. S. 255, 278; Bement v. Nat. Harrow Co., 186 U. S. 71, 83; WatersPierce Oil Co. v. Texas, 212 U. S. 86, 97. The unreasonable character of the ordinance appears further from the scope of its provisions, as construed by the Court of Appeals. This court is not bound by the determination of the state courts either as to the lawfulness of the ordinance or as to its effect upon the rights of the plaintiff in error. Yick Wo v. Hopkins, 118 U. S. 356, 366; Dobbins v. Los Angeles, 195 U. S. 223. A municipal ordinance which prohibits the exercise of a property right which is not a nuisance, and which in no way affects the well-being, health, physical comfort, convenience, safety or morals of the community is, to the extent of such prohibition, unlawful under the Fourteenth Amendment. 221 U. S. Argument for Plaintiff in Error. As to limits upon the police power precluding the lawfulness of the ordinance, see Yick Wo Case, supra; Lawton v. Steele, 152 U. S. 133, 136, 138; in this case the court refers to various cases in which so-called police regulations had been declared illegal. Rockwell v. Nearing, 35 N. Y. 302; Dobbins v. Los Angeles, 195 U. S. 223; Mugler v. Kansas, 123 U. S. 623, 661. If there be any presumption it is to the contrary. The omnipresence of advertisements upon private property adjacent to highways along the principal thoroughfares of our large cities and trunk lines of railroads in or adjacent to every great city and even small ones bears forceful testimony to this effect. See Yates v. Milwaukee, 10 Wall. 497. When an intrinsically harmless use of private property is prohibited by law, it must appear clearly that the prohibition accomplishes some purpose which is of benefit to the community. Fisher Co. v. Woods, 187 N. Y. 90; Matter of Jacobs, 98 N. Y. 98; People v. Gillson, 109 N. Y. 389; People v. Armstrong, 73 Michigan, 288; People v. Rochester, 44 Hun, 166. The display of advertisements made by the advertising company under contract with the plaintiff, or the lease of space by the latter to the former, is not a nuisance and in no way injures or affects the welfare, health, physical comfort, safety, convenience or morals of passengers, or of the public. This section has no application to the advertisements in question in this case. Wood on Nuisances, 3d ed., § 801, p. 1177. The advertisements in question cannot be judicially condemned on æsthetic grounds. Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251; Commonwealth v. Boston Advertising Co., 188 Massachusetts, 348, 352 (1905); and see also Passaic v. Paterson Advertising Co., 72 N. J. L. 285; Bryan v. City of Chester, 212 Pa. 259, 262. Argument for Defendant in Error. 221 U.S. The ordinance cannot be sustained as a proper exercise of the police power as a regulation covering the use of the streets. The ordinance creates a favored sub-class of vehicles which are permitted to display advertisements, it being self-evident that the term "business notices" includes "advertisements." Gulf &c. Co. v. Ellis, 165 U. S. 150, 165. The ordinance clearly discriminates between two classes of passenger carriers, both having chartered rights to use the streets. Soon Hing v. Crowley, 113 U. S. 709. The ordinance impairs the obligation of the contract between the plaintiff in error and the Railway Advertising Company. Delmas v. U. S. Insurance Co., 14 Wall. 661, 668; N. Y., N. H. & H. R. R. Co. v. Interstate Com. Comm., 200 U. S. 361, 401; Chicago v. Sheldon, 9 Wall. 50, 55. The ordinance also operates to impair the obligation of the contract between the State of New York and the plaintiff. This court has jurisdiction and will determine for itself the question of whether or not such a contract exists and whether the ordinance complained of impairs its obligation. Mobile & Ohio R. R. v. Tennessee, 153 U. S. 486, 493; Society &c. v. Town of Pawlet, 4 Pet. 480, 502. Mr. Terence Farley, with whom Mr. Theodore Connoly was on the brief, for defendant in error: A common carrier has no common-law right to use the public highways for advertising, not its own, but somebody's else business. Such purposes are absolutely and entirely foreign to the objects of its incorporation. Armstrong v. Murphy, 65 App. Div. 123; Schwab v. Grant, 126 N. Y. 473, 481, 482; Palmer v. Larchmont Electric Co., 221 U.S. Argument for Defendant in Error. 158 N. Y. 231; Osborne v. Auburn Telephone Co., 189 N. Y. 393. The highway may only be used for municipal or street purposes. The display of advertisements upon the stages of the plaintiff in error is neither a municipal nor a street purpose. Hatfield v. Straus, 189 N. Y. 208; Callanan v. Gilman, 107 N. Y. 360; Hoey v. Gilroy, 129 N. Y. 132; Jorgensen v. Squires, 144 N. Y. 280. See also Ackerman v. True, 175 N. Y. 353. It is doubtful whether the city itself could sanction these displays. Belt v. St. Louis, 161 Missouri, 371. Grants of franchises to public corporations are to be strictly construed. Nothing passes by intendment, and the only powers vested in them are those which are either expressly conferred or are necessarily implied for the purpose of enabling them to transact their public duties. Coosaw Min. Co. v. South Carolina, 144 U. S. 550; Water Co. v. Knoxville, 200 U. S. 22; Blair v. Chicago, 201 U. S. 400. A corporation has no powers whatever excepting those given by its charter or the law under which it is incorporated, either directly or as incidental to its purposes and existence. Plank Road Co. v. Douglass, 9 N. Y. 444; Ren. & Sar. Ry. v. Davis, 43 N. Y. 137; N. Y. & H. R. R. Co. v. Kip, 46 N. Y. 546; Mohawk Bridge Co. v. Utica &c. Co., 6 Paige, 554; Thomas v. Railroad Co., 101 U. S. 71, 82. The private business of advertising tobacco, cigarettes, soap and toilet articles, is not incidental to the exercise of a public franchise to operate stage coaches for hire. It is not even an "incidental power." First M. E. Church v. Dixon, 178 Illinois, 260. An "incidental power" is one which is directly and immediately appropriate to the execution of the specific power granted, and not one which has only a slight or remote relation to it. Hood v. New York & N. H. R. Co., Argument for Defendant in Error. 221 U.S. 22 Connecticut, 1, 16; People ex rel. Peabody v. Chicago Gas Trust Co., 130 Illinois, 268, 283; 8 L. R. A. 497; Burke v. Mead, 159 Indiana, 252; 64 N. E. Rep. 880, 883; State ex rel. Jackson v. Newman, 51 La. Ann. 833; 25 So. Rep. 408; Franklin Co. v. Lewiston Sav. Bank, 68 Maine, 43, 45; 28 Am. Rep. 9. An incidental power exists only for the purpose of enabling a corporation to carry out the powers expressly granted to it. Moloney v. Pullman's Palace Car Co., 175 Illinois, 125; Alton Mfg. Co. v. Garrett Biblical Institute, 243 Illinois, 298; Marshalltown Stone Co. v. Des Moines Brick Co., 126 N. W. Rep. 190; State v. Morgan's L. & T. R. & S. S. Co., 106 Louisiana, 513. The exercise of a power which might be beneficial to the principal business is not necessarily incidental to it. Gause v. Commonwealth Trust Co., 196 N. Y. 134, 144; Healy v. Illinois C. R. Co., 233 Illinois, 378; Burke v. Mead, 159 Indiana, 252; Nicollet Bank v. Frisk-Turner Co., 71 Minnesota, 413; Victor v. Louise Cotton Mills, 148 N. Car. 107; Curtis v. Leavitt, 15 N. Y. 9, 165; Peabody v. Chicago Gas Trust Co., 130 Illinois, 268; Chewacla LimeWorks v. Dismukes, 87 Alabama, 344; Moloney v. Pullman's Palace Car Co., 175 Illinois, 125; Hood v. N. Y. & N. H. R. Co., 22 Connecticut, 502; Mutual Sav. Bank v. Meridan Agri. Co., 24 Connecticut, 159; Naugatuck R. Co. v. Waterbury Button Co., 24 Connecticut, 468; Elmore v. Naugatuck R. Co., 23 Connecticut, 457; Penna. & Del. Nav. Co. v. Dandridge, 8 Gill & J. (Md.) 248; Orr v. Lacey, 2 Doug. (Mich.) 230; Hoagland v. Hannibal & St. Jo. R. Co., 39 Missouri, 451; Root v. Godard, 3 McLean (U. S. C. C.), 102; Jacksonville &c. Ry. Co. v. Hooper, 160 U. S. 514. See also the discussions of this subject in 2 Beach, Private Corpns., § 406 (c); 2 Cook, Corporations, 6th ed., § 681; 1 Elliott on Railroads, 2d ed., § 379; Field, Private Corporations, §§ 53, 54; 4 Thompson, Corporations, § 5638; 1 Wood on Railroads (Minor's ed.), § 170; Davis v. Old |