302 A.2d 90 (Me. 1973), Ace Tire Co., Inc. v. Municipal Officers of City of Waterville

Citation302 A.2d 90
Opinion JudgeDUFRESNE,
Party NameACE TIRE CO., INC. d/b/a Ross-Barr Scrap Metal Co. v. MUNICIPAL OFFICERS OF CITY OF WATERVILLE and the Inhabitants of the City of Waterville.
AttorneyIsaacson & Isaacson, by Philip M. Isaacson, Harris M. Isaacson, Irving Friedman, Lewiston, for plaintiff. Shiro & Jabar, by John P. Jabar, Waterville, for defendants.
Judge PanelBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateMarch 15, 1973
CourtSupreme Judicial Court of Maine

Page 90

302 A.2d 90 (Me. 1973)

ACE TIRE CO., INC. d/b/a Ross-Barr Scrap Metal Co.

v.

MUNICIPAL OFFICERS OF CITY OF WATERVILLE and the Inhabitants of the City of Waterville.

Supreme Judicial Court of Maine.

March 15, 1973

Page 91

[Copyrighted Material Omitted]

Page 92

[Copyrighted Material Omitted]

Page 93

Isaacson & Isaacson, by Philip M. Isaacson, Harris M. Isaacson, Irving Friedman, Lewiston, for plaintiff.

Shiro & Jabar, by John P. Jabar, Waterville, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

The plaintiff corporation in a declaratory judgment proceeding under 14 M.R.S.A., § 5954 1 sought in the Superior Court of Kennebec County a judicial determination of the validity and constitutionality of the statutory provisions regulating the operation of junkyards, and especially the sections relating to permits and fees for the same, 30 M.R.S.A., §§ 2452, 2455, which read as follows:

Section 2452. Establishment and maintenance

'No 'automobile graveyard' or 'junkyard' shall be established, operated or maintained, or permitted by the owner of any land to be established, operated or maintained, without first obtaining a nontransferable permit from the municipal officers of the municipality wherein said automobile graveyard or junkyard is to be established, operated or maintained, . . . which permit shall be valid only until the first day of the year following.'

Section 2455. Permit fees

'The municipal officers or county commissioners as provided for in section 2452 shall collect in advance from the applicant for said permit a fee in accordance with the following schedule:

  1. Ten dollars for each permit for an automobile graveyard or junkyard located more than 100 feet from any highway, plus the cost of posting and publishing said notice. 2

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  2. Five hundred dollars for each permit for an automobile graveyard or junkyard located within 100 feet from any highway, plus the cost of posting and publishing said notice.'

    The plaintiff demanded as additional relief from the Inhabitants of the City of Waterville reimbursement for the payment to the City of the annual license fees of five hundred ($500.00) dollars which it paid under protest in 1968, 1969 and 1970 respectively to obtain the statutory permit and avoid the criminal penalties provided for any violation of the statutory requirements under 30 M.R.S.A., § 2458.

    The issue is presented to us by way of report on an agreed statement of facts pursuant to Rule 72(b), M.R.C.P. 3 The report is in proper form, including, as it does, the Justice's opinion of the importance and doubt of the legal question reported and the Attorney General's declination to participate in the proceedings after being served with a copy thereof pursuant to 14 M.R.S.A., § 5963. 4

    The plaintiff attacks the constitutionality of the statute on the following grounds:

    (1) The statute unlawfully discriminates between junkyard businesses which are operated in a location within one hundred feet from a highway and those located more that one hundred feet from a highway.

    (2) The statute unlawfully discriminates between junkyard businesses and other businesses, some of these other businesses being of comparable nature.

    (3) The requisite license fee is unreasonable and oppressive.

    (4) If the statute is intended as a police measure, then the pre-required fee is unreasonable in proportion to the costs of administration and enforcement of the law.

    (5) If the statute is intended as a revenue-tax measure, then it amounts to 'double taxation' since plaintiff is otherwise taxed in the operation of its junkyard business upon its real and personal property; it results in the imposition of an unconstitutional public tax lacking in uniformity.

    (6) The statute clearly demonstrates on its face, by imposing the large fee of $500 in the case of junkyards within 100 feet from a highway as compared to a fee of $10 for junkyards more than 100 feet away, a legislative intent to prohibit the junkyard business by indirection, such legislation being unjust, oppressive, arbitrary and unconstitutional.

    The agreed statement discloses that the plaintiff's premises from which it operates its junkyard business are located at 2 Drummond Avenue in the City of Waterville and lie within one hundred feet from the highway. It is undisputed that this business has been carried on from these premises since 1926 and is a non-conforming use under the zoning ordinance of the City of Waterville. It is situated in an area classified as Residential B, the second highest residential classification under the ordinance. The plaintiff's premises also abut upon High Street, another highway, and are otherwise surrounded by residential properties. The parties further agree in their statement of facts that the plaintiff is in compliance with proper screening

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    fences as mandated by the statute. 5 It is conceded that the cost to the municipality and the state of printing the applications for permits, the posting and publishing of notices, the maintenance of municipal records, the policing and patrolling of the locations are no greater in the case of junkyards situated within 100 feet from a highway than in the case of yards more than 100 feet away. It is admitted that in the City of Waterville another junkyard is located within 100 feet of a highway, while three others operate at a greater distance.

    Preliminarily, we must keep in mind the strong presumption of constitutionality which the Judiciary must accord to all enactments of the Legislature, a co-equal branch of government. York Harbor Village Corporation v. Libby, 1928, 126 Me. 537, 140 A. 382. Our Court more specifically delimited the operational scope of the presumption, when it said in State v. Stinson Canning Company, 1965, 161 Me. 320, 211 A.2d 553:

    'Every intendment must be made in favor of the validity of the law, if it appears that the means adopted are suitable to the end in view, impartial in operation, not unduly oppressive upon the individuals, and has a real and substantial relation to their purpose.'

    If a statute is within the legitimate range of the police power, has a fair tendency to accomplish the end proposed, is not unjustly discriminative, and does not destroy nor despoil a particular class, courts should not declare it unreasonable merely because they consider it impolitic or because it will operate harshly upon some individuals. The necessity for the statute and the manner of its enforcement are fundamentally legislative, not judicial, questions. Nulter v. State Road Commission of West Virginia, 1937, 119 W.Va. 312, 193 S.E. 549, 551, 194 S.E. 270.

    In State of Maine v. King, 1936, 135 Me. 5, 188 A. 775, our Court reaffirmed certain general principles to be applied when statutory classifications are under attack for constitutional infirmity based on the claim that they are arbitrary, unreasonable, unjust and violative of the equal protection clause of the State or Federal constitutions.

    From York Harbor Village Corporation v. Libby, supra:

    '* * * (P)rivate property is held subject to the implied condition that it shall not be used for any purpose that injures or impairs the public health, morals, safety, order, or welfare. Under the police power, statutes and authorized ordinances give this condition practical effect by restrictions which regulate or prohibit such uses. If the use is actually and substantially an injury or impairment of the public interest in any of its

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    aspects above enumerated, a regulating or restraining statute or ordinance conforming thereto, if itself reasonable and not merely arbitrary, and not violative of any constitutional limitation, is valid.' (State of Maine v. King, supra, at page 10, 188 A. at page 778).

    From Borden's Farm Products Co. Inc. v. Baldwin, 1934, 293 U.S. 194, 209, 55 S.Ct. 187, 192, 79 L.Ed. 281, 288:

    'When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary.' (State of Maine v. King, supra, 135 Me. at page 16, 188 A. at page 781).

    From Soon Hing v. Crowley, 1885, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145:

    'The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind.' (State of Maine v. King, supra, 135 Me. at page 17, 188 A. at page 781).

    Again, from York Harbor Village Corporation v. Libby, supra:

    'A classification must not be arbitrary. It must be natural and reasonable. . . . It must be based upon an actual difference in the classes bearing some substantial relation to the public purpose sought to be accomplished by the discrimination in rights and burdens. . . . If a classification, though necessarily discriminatory, stands these tests, it is not a denial of equal protection of the laws.' (State of Maine v. King, supra, at pages 18 and 19, 188 A. at page 782).

    Finally, from State of Maine v. Old Tavern Farm, Inc., 1935, 133 Me. 468, 180 A. 473:

    'The Fourteenth Amendment does not prevent reasonable classification as long as all within a class are treated alike. The liberty guaranteed is not freedom from all restraints, but from restrictions which are without reasonable relation to a proper purpose, and are unjustly arbitrary and discriminatory.' (State of Maine v. King, supra, 135 Me. at page 19, 188 A. at page 783).

    Under Article IV, Part Third, Section 1, of the Constitution of Maine, the Legislature has 'full power to make and...

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