Diemer v. Com., Transp. Cabinet, Dept. of Highways, s. 89-SC-270-D

• Decision Date: 18 January 1990
• Docket Number: 89-SC-271-DG,Nos. 89-SC-270-D,s. 89-SC-270-D
• Citation: 786 S.W.2d 861
• Parties: Irvin T. DIEMER, Cecelia B. Diemer, and Huberta Boone d/b/a Boone Advertising Agency, Appellants, v. COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS, Appellee. J. Chester PORTER, Betty Porter, Harry M. Roggenkamp, Jean Roggenkamp, Kenneth Stout, Donna Stout, John Stout, and Huberta Boone d/b/a Boone Advertising Agency, Appellants, v. COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 861

786 S.W.2d 861

Irvin T. DIEMER, Cecelia B. Diemer, and Huberta Boone d/b/a

Boone Advertising Agency, Appellants, v. COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, DEPARTMENT

OF HIGHWAYS, Appellee.

J. Chester PORTER, Betty Porter, Harry M. Roggenkamp, Jean

Roggenkamp, Kenneth Stout, Donna Stout, John

Stout, and Huberta Boone d/b/a Boone

Advertising Agency, Appellants, v. COMMONWEALTH of Kentucky, TRANSPORTATION CABINET, DEPARTMENT

OF HIGHWAYS, Appellee.

Nos. 89-SC-270-DG, 89-SC-271-DG.

Supreme Court of Kentucky.

Jan. 18, 1990.

Rehearing Denied April 26, 1990.

Philip E. Wilson, Earl S. Wilson, Sr., Lexington, J. Chester Porter, Joseph J. Wantland, Walter A. Sholar, Shepherdsville, for appellants.

John H. Davis, Jr., William H. Wallace, Transp. Cabinet, Louisville, for appellee.

LEIBSON, Justice.

The Commonwealth of Kentucky, Transportation Cabinet ("Transportation Cabinet") filed two separate declaratory judgment actions in Bullitt Circuit Court, identical in subject matter, seeking to have certain billboards erected in 1981 declared in violation of the Kentucky Billboard Act (KRS 177.830-.890), and seeking either a mandatory injunction requiring removal or an order enjoining interference with removal of the billboards by Transportation Cabinet employees. The defendants/appellants are owners of real property located near Interstate Highway 65 in Bullitt County, and Boone Advertising Agency who owns billboard advertising devices erected and maintained on the property pursuant to leasehold rights.

The billboards involved are located beyond 660 feet from the right-of-way of the Interstate Highway outside of an "urban area" as defined in 603 KAR 3:010, Sec. 2(17) and 3:020, Sec. 2(20), regulations adopted by the Secretary of Transportation pursuant to KRS 177.830(10), which states as follows:

"(10) 'Urban areas' means those areas which the secretary of transportation, in the exercise of his sound discretion and upon consideration being given to the population within boundaries of an area and to the traveling public, determines by official order to be urban; provided, however, that any such determination or designation of the secretary shall not, in any way, be at variance with the federal law or regulation thereunder or jeopardize the allotment or qualification for federal aid funds of the Commonwealth of Kentucky."

The Kentucky Billboard Act was originally enacted in 1960 to supplement the so-called "Highway Beautification Act of 1959," which was aimed at providing financial inducements to restrict billboard advertising along the interstate highway system. In Moore v. Ward, Ky., 377 S.W.2d 881 (1964), a suit to test the constitutionality of the original statute, we address the question of whether this Act constitutes an arbitrary exercise of police power, and held that it was not. We also held that "[a]esthetic considerations are of sufficient potency for the legislature to find a public necessity for this type of legislation," and that the statute as worded did not present an unreasonable "plan of regulation" because it goes no further than to fairly protect the public interest. Id. at 886-87. See also Jasper v. Commonwealth, Ky., 375 S.W.2d 709 (1964), recognizing "aesthetic considerations as justifying the exercise of police power." 377 S.W.2d at 887.

The statute found constitutional in Moore, supra, with certain minor and irrelevant exceptions, represented total prohibition of all billboard advertising devices within 660 feet of the right-of-way of an interstate highway. However, the Kentucky Billboard Act has been subsequently amended on several occasions in an effort to accommodate changes in the federal law, with the most significant amendment occurring in 1976, to its present form which is under renewed constitutional attack.

In its present form, KRS 177.841(2), the principal statute involved in this litigation, provides as follows:

"(2) The erection or maintenance of any advertising device located outside of an urban area and beyond six hundred and sixty (660) feet of the right-of-way which is legible and/or identifiable from the main traveled way of any interstate highway or federal aid primary highway is prohibited with the exception of:

(a) Directional and official signs and notices;

(b) Signs advertising the sale or lease of property upon which they are located; or

(c) Signs advertising activities conducted on the property on which they are located."

It is the new sections of the Kentucky Billboard Act enacted in 1976 which the present appellants challenge as unconstitutional for a variety of reasons, some of which, such as the claim of unreasonable exercise of police power in violation of Section 2 of the Kentucky Constitution and the Fourteenth Amendment of the U.S. Constitution, and the taking of property rights without payment of just compensation in violation of Sections 2 and 13 of the Kentucky Constitution and the Fifth Amendment of the U.S. Constitution, are adequately dealt with in Moore v. Ward, which is controlling. We have no doubt that property rights may be controlled in the exercise of police power to the extent of prohibiting the use of private property for billboard advertising for reasons of safety or aesthetic considerations, or any combination thereof in the public interest, and we have no intention of revisiting Moore on this account. Nor do we doubt that restricting the exercise of property rights by the use of police power when it is reasonable and necessary to do so in the public interest is not the taking of property by the government that requires payment of compensation. The problem here is whether the new provisions of the statute which have been added since Moore, as written, are so vague and overbroad as to be a constitutionally impermissible exercise of police power, and whether the statute as worded represents an unconstitutional delegation of legislative power to executive authority, i.e., the Secretary of Transportation. These two problems represent opposite sides of the same coin.

The trial court held that the new statutory provision found in KRS 177.841(2) was unconstitutional. The Court of Appeals has reversed. We have accepted discretionary review, and now we reverse the Court of Appeals for reasons to follow.

The appellants' complaints regarding vagueness and overbreadth, and unconstitutional delegation of legislative power to the head of an executive agency, are directed at two aspects of the new statute prohibiting advertising devices beyond 660 feet:

1) the statute applies only to devices "located outside of an urban area," and

2) only to devices specified as "legible and/or identifiable from the main traveled way" of the federal highway.

We will deal first with point two which we perceive as presenting no constitutional problem. The chief complaint in this respect is that the term "identifiable from the main traveled way" is nonspecific in meaning, i.e., it could be interpreted as meaning either the signboard is not identifiable or that the writing or logo thereon is not identifiable, or both. Because we recognize that one of the primary purposes of the Kentucky statute was to conform to the federal statute and thus qualify for the maximum available in federal funds, we can look to the federal statute for historical perspective. In 23 U.S.C. Sec. 131, the current language of the Federal Highway Beautification Act expresses this concept as "visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way." 23 U.S.C. Sec. 131(c). Obviously, a sign which may not be "read from such main traveled way," either by verbiage or by logo, is of little value. Thus viewed "identifiable" relates to the message, not the signboard, and the limitations of the Kentucky statute are sufficiently definite to withstand constitutional scrutiny. The Kentucky administrative regulations on the subject are in conformity with the language of both the state and federal statutes. It is our responsibility to read the statutes of the General Assembly so as to save their constitutionality whenever such can be done consistent with reason and common sense (Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975)), although we cannot go so far as to add additional words to give constitutionally permissible meaning where none would otherwise exist (Musselman v. Commonwealth, Ky., 705 S.W.2d 476 (1986)). "Identifiable" as used in the statute, when viewed in context, passes constitutional muster.

The appellants argue that State v. Mayhew Products Corp., 211 Neb. 300, 318 N.W.2d 280 (1982), should persuade us to the opposite result. This Nebraska case holds that the word "visible" in a Nebraska statute similar to the present one is susceptible of dual or multiple meanings, thus violating Fourteenth Amendment protection against a statute which fails to "provide adequate notice of what conduct it requires or proscribes." The Nebraska opinion states:

"[I]t is uncertain if visibility is meant to be the legibility of the writing on the billboard from the Interstate right-of-way or the possibility of observing a billboard in the far distance regardless of its legibility from the highway." 318 N.W.2d at 283.

We agree in principle with the Nebraska decision, but we do not view the words "legible and/or identifiable" in context in the Kentucky statute as being so vague as the word "visible" in the Nebraska statute, and we do not reach the same result.

However, the first prong of the appellants' argument that KRS 177.841(2) is impermissibly vague and overbroad is more serious. In areas beyond 660 feet the statute does not prohibit the erection or maintenance of billboards unless the device is "located outside of an urban area." Thus, under the statute the illegality of an advertising device cannot be established until it is first determined that it is "located...