Arkansas State Highway Commission v. Turk's Auto Corp., Inc.

• Decision Date: 12 March 1973
• Docket Number: No. 5--6193,5--6193
• Citation: 491 S.W.2d 387,254 Ark. 67
• Parties: ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. TURK'S AUTO CORPORATION, INC., Appellee.
• Court: Arkansas Supreme Court

Page 387

491 S.W.2d 387

254 Ark. 67

ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. TURK'S AUTO CORPORATION, INC., Appellee.

No. 5--6193.

Supreme Court of Arkansas.

March 12, 1973.

Thomas B. Keys and Billy Pease, Little Rock, for appellant.

Ralph C. Murray, West Helena, for appellee.

HOLT, Justice.

The appellant, by a petition for mandatory injunction, sought to require the appellee, at its own expense, to screen its junkyard or remove it 1000' from the adjacent highway right-of-way. The appellee responded by asserting Ark.Stat.Ann. § 76--2513 et seq. (1971 Supp.) (Act 640 of 1967), which gives the appellant the asserted authority, is illegal, unconstitutional and void in that it purports to authorize the appellant to take appellee's property without due process of law and adequate compensation. The chancellor held the statute unconstitutional as applied to the appellee because it is in violation of our constitution which prohibits the taking of private property for public use without just compensation. For reversal the appellant contends '(T)hat the trial court erred in holding Act 640 of 1967 unconstitutional as applied to the appellee, * * * and by denying and dismissing the appellant's petition for a mandatory injunction pursuant to the aforesaid act.' We agree with the chancellor.

In 1955 our legislature enacted Act 212 (Ark.Stat.Ann. § 76--129 et seq.) to regulate the existence of junkyards. That Act provided for a $100 per day penalty whenever a person keeps or maintains '* * * (A)ny place where five (5) or more junk, wrecked or non-operative automobiles or other vehicles are deposited, parked, placed, or otherwise located * * *' within one-half mile of any paved highway of this state.

In Bachman v. State, 235 Ark. 339, 359 S.W.2d 815 (1962), we construed the Act unconstitutional because it was arbitrary and unreasonable. In doing so, however, we quoted as follows from Farley, etc., v. Craney, State Road Commissioner, etc., 146 W.Va. 22, 119 S.E.2d 833:

"* * * It can not be gainsaid that at this time the great weight of authority is to the effect that esthetic considerations alone will not justify the exercise of legislative authority under the police power. But on the other hand, it is perhaps just as well established that esthetic considerations may be given due weight in connection with other factors which support legislative exercise of the police power. It is clear also that there is in this day a marked tendency to accord greater importance to esthetic considerations."

Then we said:

'In this modern age when our highway system is being expanded and improved, and when more attention is being given to their beautification for the attraction of tourists, we deem it wise not to close the door on the aforementioned tendency to broaden the scope of the state's police power.'

Five years later the legislature enacted our present Act 640 of 1967 (§ 76--2513 et seq.), which provides that the operation of a junkyard is a public nuisance whenever it is located within 1000 of the nearest edge of the right-of-way of any Interstate, Primary, or other State Highway designated by appellant, unless it is screened from the view of the traveling public or removed a distance of more than 1000 from the nearest right-of-way line. The Act authorizes the appellant 'to promulgate rules and regulations governing the location, planting, construction, and maintenance, including materials used therein, of the screening and fencing required under this Act.' As indicated, this litigation resulted when the appellee refused to comply with appellant's requirement that appellee screen or remove, at its own expense, its junkyard from public view.

It appears that for approximately twenty years this type of operation was conducted at the present location. The appellee has owned and operated this business since October 1, 1965, or before the enactment of the present legislation. The business fronted upon an existing highway within the city limits of West Helena, Arkansas. In 1966 or a year before the present Act, appellant, at its expense, constructed and completely screened the 500 frontage of appellee's salvage operation adjacent to the then existing highway so that the salvage yard was invisible to the traveling public. This screen was approximately 10 in height. About two years later the Helena Loop or bypass was constructed adjacent to another portion of appellee's property. This resulted in another public exposure of the existing junkyard. The appellant erected a transparent type chain link fence approximately 6 in height along the 677 frontage of this bypass. Subsequently, the appellant, pursuant to the rules and regulations as authorized by the provisions of A...