571 P.2d 1194 (N.M. 1977), 11147, National Advertising Co. v. State ex rel. State Highway Commission

Docket Nº:11147.
Citation:571 P.2d 1194, 91 N.M. 191, 1977 -NMSC- 101
Opinion Judge:BRUCE E. KAUFMAN, District Judge. [9] Kaufman
Party Name:NATIONAL ADVERTISING COMPANY, Warren Ackerman, Ace Sign Company and Kay Bugg, Plaintiffs-Appellants, v. STATE of New Mexico ex rel. New Mexico STATE HIGHWAY COMMISSION, an agency thereof, and the New Mexico State Highway Department, Defendants-Appellees.
Attorney:[6] Kool, Kool, Bloomfield & Eaves, John M. Eaves, Albuquerque, for plaintiffs-appellants. [7] Branch & Coleman, Arthur Coleman, Albuquerque, Toney Anaya, Atty. Gen., Richard L. Russell, Henry Rothschild, Scott Rutledge, Asst. Attys. Gen., Santa Fe, for defendants-appellees.
Judge Panel:EASLEY and PAYNE, JJ., concur.
Case Date:December 08, 1977
Court:Supreme Court of New Mexico

Page 1194

571 P.2d 1194 (N.M. 1977)

91 N.M. 191, 1977 -NMSC- 101

NATIONAL ADVERTISING COMPANY, Warren Ackerman, Ace Sign

Company and Kay Bugg, Plaintiffs-Appellants,

v.

STATE of New Mexico ex rel. New Mexico STATE HIGHWAY

COMMISSION, an agency thereof, and the New Mexico

State Highway Department, Defendants-Appellees.

No. 11147.

Supreme Court of New Mexico.

December 8, 1977

Page 1195

[91 N.M. 192] Kool, Kool, Bloomfield & Eaves, John M. Eaves, Albuquerque, for plaintiffs-appellants.

Branch & Coleman, Arthur Coleman, Albuquerque, Toney Anaya, Atty. Gen., Richard L. Russell, Henry Rothschild, Scott Rutledge, Asst. Attys. Gen., Santa Fe, for defendants-appellees.

OPINION

BRUCE E. KAUFMAN, District Judge.

Our Memorandum Opinion filed July 11, 1977 in this case is hereby withdrawn and the following is substituted therefor.

The Plaintiffs-Appellants, herein (Sign Owners) brought this suit in the District Court of the Tenth Judicial District seeking a declaratory judgment that Sign Owners should be compensated for the value of their signs removed pursuant to the State Highway Beautification Act, § 55-11-1 et seq., N.M.S.A. 1953 (Supp. 1975) or, alternatively, that if Sign Owners' signs were not compensable under the Act, then the Highway Beautification Act was unconstitutional as applied to them.

The trial court found that the signs erected by the plaintiffs could only be compensable if they fell within one of the exceptions provided for in § 55-11-4, N.M.S.A. 1953, and that plaintiffs' signs failed to conform to any of those exceptions. Therefore, the trial court granted summary judgment in favor of the State.

This Court held in our prior Memorandum Opinion that the trial court's granting of summary judgment in favor of the State would be affirmed. Subsequently, petitions for rehearing were received from both parties, requesting reconsideration or expansion of various issues.

Appellants previously argued that their signs came within § 55-11-4 A(5), N.M.S.A. 1953, in that they are signs located in "unzoned commercial or industrial areas." The Highway Commission, which had authority to regulate under the statute, had not promulgated regulations defining unzoned commercial or industrial areas at the time appellants erected their signs and we held in our prior opinion and still hold that therefore that exception did not apply.

Page 1196

[91 N.M. 193] It is now alleged that the prior opinion failed to indicate whether the Act was unconstitutional. While there was no specific commentary on the validity of the Act which is here in issue, it was implicit in the Memorandum Opinion that the Act was considered a valid exercise of the state's police power. Property is always held subject to the fair exercise of the state's police power, and reasonable regulations enacted for the benefit of the public health, convenience, safety, or general welfare are not unconstitutional. New Mexico Bd. of Examiners in Optometry v. Roberts, 70 N.M. 90, 370 P.2d 811 (1962), aff'd sub nom. Head v. New Mexico Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963). So that this issue may be laid to rest, this Court now specifically holds that the State Highway Beautification Act, § 55-11-1 et seq., N.M.S.A. 1953 (Supp. 1975) is a constitutional enactment by the Legislature.

Petitioners also allege that the summary judgment affirmed by our Memorandum Opinion was improper since the judgment in favor of the State should have been barred by equitable estoppel.

The general rule on equitable estoppel against the State is that...

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